Gordon v Tolcher & Anor

[2006] HCATrans 58

[2006] HCATrans 058

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S257 of 2005

B e t w e e n -

CHARLES STUART GORDON

Applicant

and

RAYMOND GEORGE TOLCHER IN HIS CAPACITY AS LIQUIDATOR OF SENAFIELD PTY LTD (IN LIQUIDATION)

First Respondent

SENAFIELD PTY LTD (IN LIQUIDATION)

Second Respondent

Application for special leave to appeal

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 FEBRUARY 2006, AT 9.30 AM

Copyright in the High Court of Australia

MR B.A.J. COLES, QC:   If your Honour pleases, I appear with MR D.A. ALLEN for the applicant.  (instructed by Linde Business Law)

HIS HONOUR:   Yes.  I gather there is no appearance still for the respondent, beyond that submitting appearance?

MR COLES:   There is not.  I should come back to that topic in a moment, your Honour.

HIS HONOUR:   Yes.

MR COLES:   Can I firstly repair the omission of a proper draft notice of appeal?  The one in the papers your Honour has was not adequate.

HIS HONOUR:   Yes, thank you.  Yes, that seems what is needed.

MR COLES:   Your Honour, can I just mention other factors which weigh in the balance – your Honour will of course appreciate that the issue of inconsistency between the statutes was fairly before the District Court and before the Court of Appeal, although it must be said section 79 was never mentioned, no doubt because nobody remembered they were in federal jurisdiction.  We would respectfully submit that of itself should not necessarily weigh against the grant ‑ ‑ ‑

HIS HONOUR:   No, it is a pure question of law and a question of federal jurisdiction, so it is important.

MR COLES:   Yes.  The second matter is perhaps of some importance to the Court, your Honour, and it is that the Court would obviously be assisted by a proper contradictor and we would undertake, in the event of a grant of leave, to rustle one up, as it were.  We would have thought, if not the liquidator, who is after all an officer of the court, if not, Attorneys‑General, one or more, and one might have thought some perception of responsibility ‑ ‑ ‑

HIS HONOUR:   You cannot depend on them.  They might support you.

MR COLES:   If not, ASIC, has, of course, a right to intervene – we have not approached them yet – and, finally, your Honour, there would probably be one or more amicus or amici who could be interested in supplying the contrary argument.  Indeed, failing that, your Honour, I can put the contrary argument too, but it is obviously better if someone else does.

HIS HONOUR:   Yes.

MR COLES:   Thirdly, your Honour, of course, as we would see it, the countervailing consideration against a grant of special leave is really the argument succinctly advanced by Justice Hayne to my learned friend on the last occasion, and that is really the issue in the case.

HIS HONOUR:   Yes, all right.  Consistently with the attitude of the panel on the last occasion, there should be a grant of special leave, there now being an adequate second further amended notice of appeal filed in Court this morning.  That had better be signed and dated and so on, Mr Coles.

There will be a grant of special leave in this matter limited to the ground indicated in the second further amended notice of appeal.  The case will be a one‑day case?

MR COLES:   One day, or perhaps even a little less, your Honour.

HIS HONOUR:   Perhaps a little less, yes.  I note what has been said by Mr Coles respecting the appearance of a contradictor.  Is there anything else I need to do?

MR COLES:   I could hand up the signed copy of the document I gave your Honour a moment ago, but that will be filed in the Registry and complies with the Rules in the usual way.

HIS HONOUR:   Yes.  That should be filed in the Registry this morning.  I will give it back to you.

MR COLES:   Thank you, your Honour.  May it please the Court.

HIS HONOUR:   Thank you.

AT 9.33 AM THE MATTER WAS CONCLUDED