Gordon v Tolcher & Anor

[2006] HCATrans 14

[2006] HCATrans 014

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
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 FEBRUARY 2006, AT 9.48 AM

Copyright in the High Court of Australia

MR D.A. ALLEN:   If the Court pleases, I appear for the applicant.  (instructed by Brooks & Co)

GUMMOW J:   Yes, Mr Allen.

MR ALLEN:   I anticipate there will be no appearance by the respondents.  They did not appear on the last occasion, your Honours.  They have indicated to my instructing solicitor they do not wish to appear.

GUMMOW J:   Yes.  Officer, I think you had better call application No 2 outside the Court.

COURT OFFICER:   No appearance, your Honour.

KIRBY J:   Is there not a bit of a difficulty here, Mr Allen?

GUMMOW J:   Just a minute.  There is a submitting appearance at page 96.

MR ALLEN:   Yes.  Can I also add that notices have been served on all the Attorneys‑General.

KIRBY J:   But is not the non‑appearance now repeated by the liquidator something of a difficulty for us, that we would be hearing your appeal without a contradictor?

MR ALLEN:   That may be difficult for the Court but it is a choice – a forensic choice, no doubt – that the liquidator has chosen to undertake.

KIRBY J:   But it is very awkward for the Court to determine a matter and, in particular, one might say, a matter of the construction of federal legislation, section 588FF, and potentially a constitutional matter, without a contradictor?

MR ALLEN:   I am in the Court’s hands in that regard then.

GUMMOW J:   If we were to grant leave, I think you should then issue a fresh 78B notice and we would expect the Attorney-General of the Commonwealth to appear to assist in the construction of this federal legislation, which is quite important legislation, and send a copy of this transcript with the 78B notice.

MR ALLEN:   Yes, your Honour.

KIRBY J:   Otherwise he might be supporting your construction and we are back to square one.

MR ALLEN:   Of course the liquidator’s attitude might change dramatically if leave were to be granted.

KIRBY J:   Yes, it might be and he might take the view that his duties as liquidator then require him and authorise him to appear in the Court.

GUMMOW J:   He will want money.  That is what it comes down to.

MR ALLEN:   Yes. 

GUMMOW J:   Yes.  Proceed.

MR ALLEN:   There are two grounds to the application.  One is the constitutional point and one is the manner in which the Court of Appeal exercised a discretion to extend time.

GUMMOW J:   As presently advised, we would not be rushing to grant leave on the second point; it is the first point.

MR ALLEN:   I will ignore the second point then, your Honour.

GUMMOW J:   Where is your draft notice of appeal?

MR ALLEN:   There was a draft notice of appeal delivered to the Court ‑ ‑ ‑

GUMMOW J:   Or amended draft notice, I should say.

MR ALLEN:   Yes.  Accompanying that should have been an amended summary of argument with the amendments underlined.

GUMMOW J:   Yes.  Well, the argument, it now appears in the amended summary of argument.

KIRBY J:   So it is ground 1.

MR ALLEN:   Yes.

GUMMOW J:   That is not quite accurate either.  Section 79 of the Judiciary Act says to the extent that there is no inconsistency, does it not?

MR ALLEN:   Yes.

GUMMOW J:   It is not a question of section 109 at that stage?

MR ALLEN:   At that stage, no, but it might come ‑ ‑ ‑

GUMMOW J:   State laws of their own force cannot apply to cripple the pursuit of federal causes of action.  We have said that more than once.  You really should familiarise yourself with these decisions.  We do not publish them for fun in an idle moment.

KIRBY J:   And not only you.

GUMMOW J:   Yes, that is right.  So we need to revise ground 1.

MR ALLEN:   If the Court pleases.

KIRBY J:   To bring it within the language of the Judiciary Act that picks up the State law when the matter is in federal jurisdiction, as this matter appeared to be.

GUMMOW J:   But not if to do so would pick up a State law that would be inconsistent with the primary federal law, in this case, 588FF.

MR ALLEN:   Yes.

GUMMOW J:   The question then is, does 588FF, as it were, permit or contemplate a revival of an action upon which it has operated?

MR ALLEN:   Yes, your Honour.  The argument is that in this circumstance, in this particular matter, the matter had been dismissed by operation of Part 18 rule 9 of the District Court Rules.  The matter therefore having been dismissed, when it came before the Court of Appeal, there was no federal matter before the Court of Appeal which meant that section 79 could not operate to pick up the rule used by the Court of Appeal to extend time.  The rule, which was Part 3 rule 2, was required to be used by the Court of Appeal so that it could extend time ‑ ‑ ‑

GUMMOW J:   You say federal jurisdiction had vanished?

KIRBY J:   How can that be, if the Court of Appeal was considering an appeal from the exercise of federal jurisdiction by the District Court, so it must itself then be in federal jurisdiction.

MR ALLEN:   The circumstances are, your Honour, that pursuant to Part 18 rule 9 the federal ‑ ‑ ‑

KIRBY J:   Of?

MR ALLEN:   Of the District Court Rules.

KIRBY J:   Remember we are a national court.  We do not know what these mysteries mean necessarily.

MR ALLEN:   The federal matter had been dismissed.

HAYNE J:   Now, a necessary step, it seems to me, in your argument is that once dismissed that proceeding was forever at an end and that what is described as reviving it in your submissions would constitute the institution of fresh proceedings outside the time limited by 588FF(3)(a).  Is that the way the argument goes?

MR ALLEN:   Yes, your Honour, because having been dismissed it had been dismissed.

HAYNE J:   It is not self‑evident to me that an action dismissed for want of compliance with Rules of Court, as distinct from dismissed after trial on the merits, necessarily has gone for all time and for all purposes and cannot by any means ever be revived.  At least in their terms the orders that were being sought were not to commence a new action but to revive the action that had been commenced within time, fixed by 588FF, and bring it to life again.  Is that right?

MR ALLEN:   The Court of Appeal has held that when it is a State matter that the court can exactly do that if the matter has been dismissed under the procedural rules, though the power to extend time can be used to undo that dismissal.  But in this case Part 18 rule 9 of the District Court Rules of New South Wales by the words indicate that once the rule has been invoked that the matter is dismissed, though without prejudice to any right to commence fresh proceedings seeking the same or substantially the same relief.

HAYNE J:   I understand that you could not institute a fresh proceeding simply because 588FF(3)(a) would bar that, but does it follow from that fact that 588FF(3)(a):

an application . . . may only be made:

(a)      within 3 years after the relation‑ back day –

precludes revivor of an action which for want of compliance with Rules of Court stands dismissed out of court?

MR ALLEN:   Yes, because once this matter has been dismissed, section 79 does not operate to pick up the ‑ ‑ ‑

GUMMOW J:   That is the question.  I do not understand what you are saying at the moment.  There is a very thoughtful and comprehensive article, one of the authors of which is Mr Hill, in the…..Australian Bar Review which repays some study, I think, on these questions.

MR ALLEN:   That is the argument anyway, your Honour, that once the matter is dismissed section 79 does not operate so that a matter can be revived by a fresh notice of motion.

KIRBY J:   It may well be what the law requires, having regard to the paramountcy rule and the operation of the Judiciary Act in the light of that rule, but it would seem an odd result if a person who had been locked up by terrorists or lost in Sydney traffic or something of that kind and with no fault on their part they forget or overlook or missed the date or misunderstand – these things happen in life – and that nothing can be done to remedy it.

MR ALLEN:   There is nothing wrong with that outcome, especially when you consider section 588FF(3).  The limitation period is exact.  If you miss it by one day, nothing can be done.  If you have a car accident on the way to filing the application and you miss the limitation period, it is all over and done.  There is nothing you can do about it.  There is no reason why if you, through your own fault or through a third party, fail to do actions required by the Court Rules, meaning that the action is dismissed, why there should – I am sorry, I withdraw that.  If the matter is dismissed under the Rules as through the fault of your legal advisers, there is no reason why there should be some law available to you to undo that result.

KIRBY J:   These are the sort of submissions that used to be made when I started at the Bar, but we had a new dispensation and we faced up to the reality that mistakes and oversights can occur and that there should be ways of resolving it, but whether there is or is not in this case just requires close scrutiny of the Act and of its purpose and of the Rules and whether they can be picked up.

MR ALLEN:   In section 588FF(3) there is no dispensation at all unless you seek ‑ ‑ ‑

KIRBY J:   But, of course, one argument might be that the Federal Parliament so enacted knowing and realising that there were dispensing powers which could be left to the courts to administer justly because of the human capacity to err.

MR ALLEN:   In this case the Court of Appeal decided that the dispensation power in the Corporations Law itself, section 1322, did not apply to section 588FF(3) of the Corporations Act.  That was held by the Court of Appeal of New South Wales and, of course, that is a similar result to what this Court held in David Grant v Westpac in that same the section, section 1322, could not be availed of in order to extend time when there is some fault in filing an application to set aside a statutory demand.  Just because the operation and effect of the law may lead to an unjust result because of accident does not mean that the applicant in this case is not entitled to say that as the matter has been dismissed there is no power in the court to undo the effect of that dismissal.

KIRBY J:   I think we are talking in generalities.

MR ALLEN:   Yes.

KIRBY J:   You will have to read that article by Mr Hill and you will have to examine the recent cases of this Court and we will have to get a contradictor

MR ALLEN:   Yes.  There is also the other conflict point, your Honour, in that it does depend upon a section 79 argument, to some extent, but ‑ ‑ ‑

GUMMOW J:   What is it?

MR ALLEN:   That even if – no, I will not take that any further.  That argument sort of depends on the section 79 point being correct, because if section 79 does not pick up a State law obviously the State law cannot be used to extend time in a Commonwealth matter.  If the Court pleases.

GUMMOW J:   We will take a short adjournment

AT 10.02 AM SHORT ADJOURMENT

UPON RESUMING AT 10.05 AM:

GUMMOW J:   Mr Allen, the Court is minded to grant special leave limited to a reformulated ground 1 in your present draft notice, not ground 2.  It does require reformulation and the argument that you would be putting would require further development in support of that.  Within seven days you should prepare and file that draft further amended notice of appeal and submissions in support after you have pursued the matters we have been drawing to your attention.  The special leave application will now be adjourned.

I am taking some duty judge matters, I think, on Tuesday the 14^th at 9.30, but you can confirm that with the District Registrar.  Your solicitors should give notice to the liquidator of what has transpired today and of the adjournment I have just indicated to you.  Costs of today will be costs of the special leave application.

MR ALLEN:   If the Court pleases.

AT 10.06 AM THE MATTER WAS ADJOURNED