Gould v Olifant & Ors; Albarran v Companies Auditors and Liquidators Disciplinary Board & Anor

[2006] HCATrans 530

[2006] HCATrans 530

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S195 of 2006

B e t w e e n -

VANDA RUSSELL GOULD

Applicant

and

DONALD MAGAREY DAVID OLIFANT AND PATRICK PONTING BEING MEMBERS CONSTITUTING THE COMPANIES AUDITORS & LIQUIDATORS DISCIPLINARY BOARD

First Respondents

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Second Respondent

Office of the Registry
  Sydney  No S194 of 2006

B e t w e e n -

RICHARD ALBARRAN

Applicant

and

MEMBERS OF THE COMPANIES AUDITORS AND LIQUIDATORS DISCIPLINARY BOARD

First Respondent

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Second Respondent

Applications for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 SEPTEMBER 2006, AT 12.04 PM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   If it please the Court, in No 7 I appear with my learned friends, MR P.J. BRERETON and MR P. KULEVSKI, for the applicant.  (instructed by Henry Davis York)

MR N. PERRAM:   May it please the Court, in No 8 I appear with my learned friend, MR A.D. CROSSLAND, for Mr Albarran.  (instructed by NOT Lawyers)

MR S.J. GAGELER, SC:   If the Court pleases, in each matter I appear with MR A.J. ABADEE for the second respondent.  (instructed by Australian Securities and Investments Commission)

HEYDON J:   Mr Gageler, you may well be right that the Full Court is unquestionably correct, but the issues are important, are they not, and affect a reasonably large number of applications?

MR GAGELER:   Yes.

HEYDON J:   I think you said on 7 September that you did not oppose Mr Perram’s application for his matter, as it then was, to be referred into the Full Court because the issue was one which had the potential to affect a considerable number of cases which are in the pipeline and you said the constitutional point was festering and the experience of your client, which is pre‑eminent of course in this area, has shown that in these sorts of matters, unless such a point is dealt with at a very high public level, it is likely to continue to fester.

MR GAGELER:   All unquestionably correct, your Honour.

HEYDON J:   Still correct?  Why no special leave then?

MR GAGELER:   Your Honour, can I just add this to the history.  Your Honour may recall on 4 August your Honour was part of a special leave Bench comprising Justices Gummow, Kirby and yourself and your Honours heard an application in the matter of Kamha involving APRA and a companion case I think may have been heard earlier this week in the Full Court.  That was a case which was decided in the Full Federal Court by the same Bench as decided the present case – Justices Emmett, Allsop and Graham – and it dealt with an analogous statutory scheme, that is, basically a licensing scheme, in that case a licensing scheme under the Insurance Act and a licensing scheme for persons who hold management positions in insurance companies.

Special leave was refused in that case.  In that case I did not get called upon at all, your Honours, but what I would have said in that case, as I say in the present case, is ‑ ‑ ‑

HEYDON J:   The doctrine of precedent does not apply to the fate of special leave applications.

MR GAGELER:   I know, but your Honours dismissed it on the basis that it was a licensing scheme, and that is what I say here.  This is a licensing scheme.  If they are right – and we wanted a high appellate pronouncement

to quash this sort of Rich heresy that is sort of creeping there.  I am sorry, your Honours, there is nothing wrong with Rich.  It is the constitutional vibe that has been taken by Rich is creeping through the judiciary.  We have here an authoritative well‑reasoned judgment of the Full Federal Court that satisfies all of the conditions that I was saying to your Honour on the previous occasion.

HEYDON J:   But if they are talking nonsense, the only way to stop them talking nonsense is to hear this appeal from the Full Federal Court.

MR GAGELER:   If your Honours are minded to that view, I think I have said what can be said.  It is a licensing scheme once you characterise it a licensing scheme.  If they are right on this, then you start questioning fisheries through to visas.  They are all licensing schemes and nobody has ever questioned those in the past and there is really nothing in Rich – and Rich is the source of all of this festering – that bears upon it.

HEYDON J:   What you say is very powerful.

MR GAGELER:   If the Court pleases.

HEYDON J:   There will be a grant of special leave to appeal in both applications.  How long will it take for them to be heard?  One day?  I think, unless Justice Crennan disagrees, it would be appropriate for counsel for the applicants to ensure that there is no duplication of argument.  The point is obviously identical really in both appeals.  Very well.  That may be heard in December.  If not, it will be heard very early next year.

AT 12.08 PM THE MATTERS WERE CONCLUDED