GPS First Mortgage Securities Pty Ltd v Lynch

[2001] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B51 of 2000

B e t w e e n -

GPS FIRST MORTGAGE SECURITIES PTY LTD

Applicant

and

DAMIAN MICHAEL LYNCH

Respondent

Application for solicitor to be removed from record

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 17 MAY, 2001, AT 10.50 AM

Copyright in the High Court of Australia

MR R.A. ALLEN:   I appear for Whitman & Co, withdrawing solicitors for Damian Michael Lynch – applicant’s withdrawal.  (instructed by Whitman & Co)

MR J.K. MEREDITH:   I appear on behalf of the applicant, GPS First Mortgage Securities.  (of Plastiras Meredith Mohr Lawyers)

HIS HONOUR:   Your application is made, Mr Allen, under what rule?

MR ALLEN:    I am sorry, I do not have the – I did consult the Rules when we drafted the application initially, but there is a rule at the very back of the High Court Rules.

HIS HONOUR:   Let see if we can find it.  The firm you represent wishes to withdraw from the record; is that so?

MR ALLEN:    Withdraw, that is correct, your Honour.  There is no other substantive orders that we are seeking.

HIS HONOUR:   What is your attitude to that, Mr Meredith?

MR MEREDITH:   Your Honour, considering the circumstances of the debtor presenting a debtor’s petition on 1 May, I am instructed to withdraw the petition.  The petitioning creditor does not intend taking the matter further.

HIS HONOUR:   And I have already made an order for removal of this matter into the High Court; is that so?

MR MEREDITH:   That is correct.

HIS HONOUR:   So you would wish to discontinue anyway, Mr Meredith; is that right?

MR MEREDITH:   That is right, your Honour.  This is just a mention, I understand, for the debtor’s solicitors to withdraw from the record.  We are advised of the presentation of the debtor’s petition last week and then we notified the Registry of our client’s intention in those circumstances as well as the Attorney‑General.

HIS HONOUR:   But you are not seeking any orders today, or are you?

MR MEREDITH:   Your Honour, I was seeking that the petition be dismissed.  The matter is not going to be taken any further.

MR ALLEN:    That order would not require us to proceed further with the application in any event.  The petition - - -

HIS HONOUR:   No.  If I dismiss – well, I suppose I would make an order simply dismissing the petition; is that right?

MR ALLEN:    Yes, your Honour.

HIS HONOUR:   Have I jurisdiction to do that though now it has been removed into the – it has been removed into the High Court, not into the Full High Court, has it?

MR MEREDITH:   Your Honour, one concern is in relation to the case stated, whether the Full Court would need to deal with that issue.

HIS HONOUR:   What was the form of my order?  Well, no, I simply ordered that the matter be moved into this Court.

MR ALLEN:   We could probably assist your Honour.  Section 27 of the Bankruptcy Act talks about the courts with bankruptcy jurisdiction and makes an exception save under section 75 of the Constitution and the relevant paragraph is subparagraph (iii) to which the Commonwealth is a party. There may be a bit of a problem in so far as the Commonwealth remove the matter into the Court, but it is not technically a party under the Constitution. It is certainly a party under the High Court Rules but maybe not under the Constitution. It might have been more appropriate for withdrawal to be made by remitting the matter back to the Federal Court.

HIS HONOUR:   That is probably right, is it not?

MR MEREDITH:   No objection to that, your Honour.

HIS HONOUR:   So I will simply order that the matter be remitted back to the Federal Court.  You can make your application for withdrawal there.

MR ALLEN:    Thank you, your Honour.

HIS HONOUR:   All right.  Well, I will simply make an order that the matter be remitted to the Federal Court.

MR ALLEN:    Thank you, your Honour.

MR MEREDITH:   Thank you, your Honour.

HIS HONOUR:   Thank you.

AT 10.55 AM THE MATTER WAS CONCLUDED