Halliday v HIgh Performance Personnel Pty Ltd (formerly Sacs Group Pty Ltd (In Liquidation)

[1993] HCATrans 59

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M58 of 1991

B e t w e e n -

PETER CAMERON PAUL HALLIDAY

Applicant

and

SACS GROUP PTY LTD (now High

Performance Personnel Pty Ltd

(In Liquidation))

Respondent

Application for an extension
of time in which to file notice

of appeal

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Halliday(2) 1 12/3/93

AT MELBOURNE ON FRIDAY, 12 MARCH 1993, AT 8.50 AM

Copyright in the High Court of Australia

MR P.C.P. HALLIDAY: If Your Honour pleases, I am

Mr Peter Halliday and I bring this application

before the Court.	Your Honour, may I have my
brother assist me?	He is a solicitor, but does not

have a practising certificate.

HIS HONOUR:	Yes.
MR HALLIDAY:	Thank you, Your Honour.
MR TATARKA:	If Your Honour pleases, I appear on behalf of the respondent to the applications. (instructed by
Minter Ellison Morris Fletcher)
HIS HONOUR:	Yes.
MR HALLIDAY:	Your Honour, the material that I seek to rely

upon today includes the two affidavits I have filed

in support of the application and the exhibits

thereto. Does Your Honour have the affidavits to

which I refer?

HIS HONOUR: Just tell me.

MR HALLIDAY:	Yes, Your Honour.
HIS HONOUR:	Now, they are affidavits by you?

MR HALLIDAY:  Yes, Your Honour. They are affidavits sworn

by myself.

HIS HONOUR:	The dates are?
MR HALLIDAY:	17 February 1993
HIS HONOUR:	Yes.
MR HALLIDAY:	- - - and the exhibits thereto, and 12 March

1993; no exhibits to that affidavit, Your Honour.

HIS HONOUR:	No what?
MR HALLIDAY:	No exhibits to that second affidavit of

12 March, Your Honour.

HIS HONOUR:  I have read the first affidavit. I have not

read the second affidavit.	I am not going to hear
the application ex parte.

MR HALLIDAY:  Thank you, Your Honour. Your Honour, in

making that decision, has Your Honour considered

the order that in relation to the definition of a

respondent, Order 70, on appeals, subsection 1. I just thought I should ask Your Honour whether that

definition of ttrespondent'', which is:

Halliday(2) 2 12/3/93

a person who has been served with a notice of

appeal -

would indeed provide a respondent to this

application at this time.

HIS HONOUR:	Now, this is Order 70?
MR HALLIDAY:	Yes, Your Honour, and subsection 1, thereof,

where a respondent is defined - - -

HIS HONOUR: Order 70, rule 1?

MR HALLIDAY:  Yes, Your Honour. A respondent is defined

there to be:

a person who has been served with a notice of

appeal.

And I thought, Your Honour, that perhaps at this time, given the nature of the application, there is not yet a respondent to this particular - proposed.

HIS HONOUR:  No, but the rules of natural justice require

that a person who would be affected by an order

extending time should have an opportunity of

resisting the application.

MR HALLIDAY:  I take it no further, Your Honour, thank you.

Your Honour, with regard to the application that

the name of the respondent on the file be now High

Performance Personnel Pty Ltd (In Liquidation), may

I seek at this stage that that order be made.

HIS HONOUR:	What do you say as to that, Mr Tatarka?
MR TATARKA:	We have no objection to that amendment,

Your Honour.

HIS HONOUR:  That order may be made. I am prepared to make

that order.

MR HALLIDAY:  Thank you, Your Honour. Your Honour, there

are two parts to the remaining application I filed;

one is the application that I be able to file a

notice of appeal and in so doing have regard to the

21-day rule, as I have referred to it in my

affidavit in support, and the second part seeks to

deal with the provisions of the Corporations Law,

in respect to proceedings when a party is a party -

indeed, a company in liquidation.	Your Honour, if
I may, in dealing -

HIS HONOUR:  Well now, first of all can we deal with the application for an extension of time? Mr Tatarka,

I take it you are opposing that application?

Halliday(2) 3 12/3/93

MR TATARKA:	Yes, Your Honour.
HIS HONOUR:	Now, can you indicate to me on what ground you

are opposing that application?

MR TATARKA: Well, Your Honour, the consideration upon which

the Court should move is one of an exercise of

discretion, and, in our submission, the discretion

ought not be exercised in the circumstances

provided by Mr Halliday as reasons at to why the

discretion ought to be exercised. Secondly,

Your Honour, it would be my submission that there

would be no appeal lying from the order of

His Honour Mr Justice Dawson in any event. Properly

construed, the taxing officer's decision was
subject to a review. That review having occurred,

His Honour's decision in respect of that review, in my submission, does not fall within the originating jurisdiction of the High Court. In those

circumstances, in my submission, Mr Halliday would

need to proceed by way of an application for

special leave to appeal, and he does not have an

appeal as of right, even if time was extended.

HIS HONOUR: Well, yes. There may be a number of questions

involved in that.	But first of all; can I take you
back to your first ground of opposition.	Do I take

it that that includes, amongst other things, that

Mr Halliday has insufficient prospects of success

in any appeal to warrant an extension of time?

MR TATARKA: That is so, Your Honour, yes.

HIS HONOUR:  Yes. Thank you. That is all I need to know at

this stage.

MR TATARKA: If Your Honour please.

HIS HONOUR:	Yes, Mr Halliday.
MR HALLIDAY:	Your Honour, in advocating the application for

the appeal to be able to be lodged outside the 21

days, I would like to take Your Honour to, what can

be referred to as, the Gallo case, in which

Mr Justice McHugh set out his reasons.

HIS HONOUR:	Yes, I am aware of that case.
MR HALLIDAY:	And in taking Your Honour to that particular

case, almost every one of the five points that
His Honour, in that case, decided ought to cause

him not to exercise the discretion, I submit is the

opposite here and, indeed, a reason why one should

grant the application sought.

Halliday(2) 4 12/3/93

HIS HONOUR:  What I am particularly concerned about here is

whether you have any prospects at all of succeeding

in an appeal.

MR HALLIDAY:	Yes, Your Honour.
HIS HONOUR:	Now, I should perhaps mention, in connection with that question, another problem that I see, and
putting to one side what Mr Tatarka has said to the
effect that you have not got a right of appeal, it
seems to me distinctly possible that your proposed
appeal is governed by the provisions of section 27
of the Judiciary Act which provides that:

An appeal shall not lie to the High Court from a decision of a Justice of the Court ..... with

respect to costs which are in the discretion of the Court, except by leave of the Justice or Court.

Now, if section 27 applies, you would be compelled

to make an application for leave to Justice Dawson,

because it says, "leave of the Justice", not,

"leave of a Justice".

MR HALLIDAY:	Yes, Your Honour.
HIS HONOUR:	I suppose you could make an application to the

Court, but I am not sure about that. I think

"Court" may refer to Supreme Court of a State

exercising federal jurisdiction in the context in

which it appears. So that my present view would be

that you would be obliged to make an application

for leave to Justice Dawson himself, but the

question which confronts you today is the

difficulty of persuading me that, if you apply to

Justice Dawson, you would get leave. In other

words, would you have any prospect of getting leave

from him?

MR HALLIDAY: Yes, Your Honour. If I address that - prior

to doing so, could I say, Your Honour, that my

understanding is that indeed the Registry	considered and, I believe, consulted with
Mr Justice Dawson, as to whether this application
should come before him, and my understanding of the reason it is not before him is that he considered
it ought not to come before him, and that is why my alternatives were to go to Canberra or Sydney,
which I was prepared to do, but this came up.

HIS HONOUR:  No, no, but this is an application for

extension of time and it is coming before me.

MR HALLIDAY:  Yes, I appreciate that, Your Honour.

Halliday(2) 5 12/3/93

HIS HONOUR:  But what I am saying to you is that ultimately,

if the matter were to go further forward, whatever

view was taken about Justice Dawson sitting on this

application, section 27 might compel you to make an

application to him.

MR HALLIDAY:	I understand, Your Honour. Getting into the merits, then, of what would be the prospects of
success were appeal to proceed - - -
HIS HONOUR:	Yes.
MR HALLIDAY:	- - - my affidavit in support, I believe, sets

out ma·ny grounds and I believe all of them - - -

HIS HONOUR:  I have read them all, and all I can say to you

at the moment, subject to what you may say, I do not presently find them persuasive, Mr Halliday.

MR HALLIDAY: Thank you, Your Honour. If I turn, in

particular, Your Honour, to page 8	of the decision
of Mr Justice Dawson of the 23rd.	Now there,
Mr Justice Dawson says, in the top	paragraph there:

Accordingly, the applicant must displace the presumption that there is a contract of

retainer between Minter Ellison ..... and the

respondent.

Now, in my submission, Your Honour, there is one

point of law which an appeal court would uphold on

this basis. The standard upon which any hearing

must be conducted, I submit, are on the basis that

a court is not entitled to - and that is why we

have courts - presume things. It cannot assume

facts. There must be evidence to show.

HIS HONOUR: Well, that is not right. I mean there are

countless instances of courts acting on

presumptions.

MR HALLIDAY: Well, Your Honour, in my submission, there

must be in it, for a court to be able to do so and

to dispense the rules of natural justice properly

and to provide a fair hearing to parties, at least

some evidence upon which they can make and draw

such a basic conclusion on probabilities.

HIS HONOUR:  The evidence in this case is that Minter

Ellison acted as solicitors on the record for the

respondent.

MR HALLIDAY:  Not in dispute, Your Honour. That is conceded

but not in issue. What is in issue - - -

HIS HONOUR: Well, that seems to me very strong evidence

that there was a retainer and, what is more, is

Halliday(2) 6 12/3/93

there not in evidence, a letter from the

liquidator, confirming the retainer?

MR HALLIDAY:  No, Your Honour. What the evidence - and this

is the subtle but significant and telling point on

which I believe an appeal court would find for the

appeal I would seek to run - everyone has been

silent on, and it could easily decide the point if

either the liquidator would say, in unequivocal

terms, it had been challenged to do so, "I engaged

and I retained Minter Ellison", or if Minter

Ellison, or a solicitor authorized to speak for

them, Qr counsel authorized to speak for the

respondent, if any of them would say, "We were

retained by and engaged by the respondent". There

has been absolute silence on that, despite the fact

that they had been pressed to do so, and there is

evidence to the contrary.	The weighty
evidence - - -

HIS HONOUR:	What evidence is there to the contrary?
MR HALLIDAY:	The weighty evidence to the contrary,

Your Honour, and again the affidavit I have

provided today - the material has been known to the

respondent for some days - seeks to press this

point and challenge them if there is any contrary

evidence. The evidence is from both the company

proceedings, or for that matter any other

itself, the Directors Report, and the liquidator
himself, evidencing no liabilities whatsoever for

one cent, either actual or contingent, to Minter

proceedings. In the face of that evidence, where

you have an officer of the court - - -

HIS HONOUR:  But what is that evidence, Mr Halliday?

MR HALLIDAY: That evidence is the exhibit that was provided

to Mr Justice Dawson - - -

HIS HONOUR:  But what is it?

MR HALLIDAY:  Yes, Your Honour - it was exhibited to the

Court. It is the report provided by the Australian

Securities Commission, the report as to affairs by

the liquidator and has all liabilities of the

respondent. It is exhibit to the affidavit of

Mr Halliday of 14 December. It is exhibit 14 12-1,

and it is amongst the exhibits that you have,

Your Honour. I can hand you up a copy, I believe.

If I hand this bundle of copies to your associate.

Perhaps I should just show the other side.	Does
Your Honour have that?

HIS HONOUR:	Yes, I have, and what -
Halliday(2)	12/3/93
MR HALLIDAY:	Now, what I say to Your Honour that stands

for, is this that is a statement to the Australian Securities Commission by an officer of the supreme

court in Melbourne, Mr Jenkins, in his capacity as

liquidator. It accords with, in the total

liabilities of the company in liquidation, with the

statement of affairs of the directors. So we have

two independent people saying the total liabilities

of High Performance is the figure of 2 million -

the liquidators unfortunately mistyped it as

20 million, but really it is $2,309,271.	So we
have the total figure.	The liquidator has said
this is_ the total liability of the company.	They

are all then listed, and this is, after all, at

3 August 1992, well after the proceedings that the

special leave application relate to. Every

liability is evidenced there and the liquidator is

saying, "There are no other liabilities". We have

no liabilities specifically to Minter Ellison.

Now that is, in my submission, the most

weighty material that could exist. An officer of the court is attesting to that, and that is after

the period in question. In my submission,

Your Honour, a court could not presume - could not

make the assumption - in the face of that evidence,
which is the evidence that I submitted to the

taxing officer, ought to be subpoenaed to the

taxation.

HIS HONOUR:  Yes, all right. Now, what else have you got?

MR HALLIDAY:	Your Honour, with regard to the question of subrogation of rights issue, in my submission, the
case I cited before Mr Justice Dawson - - -

HIS HONOUR: But, let me say this to you: it does not seem

to me that it depends on subrogation. This is an

insurance case, is it not, in which the company held a policy of insurance from FAI Insurances?

MR HALLIDAY: Well, Your Honour, that is alleged, but the

facts, I would submit, are that it did not, and

that is precisely one of the areas where, I submit,

the taxation officer erred, and Mr Justice Dawson

erred and the evidence that there was not an

insurance policy at the relevant time is

substantial.

HIS HONOUR:  But why did FAI Insurances concern itself with

this litigation if there was no insurance policy?

MR HALLIDAY: Well, that may be a fact that, perhaps, could

be relevant to this, but I would submit to

Your Honour that there is a letter, that has been

evidenced, from FAI to a firm of solicitors, Minter

Ellison, saying, "Please advise us on the fact that

Halliday(2) 12/3/93

we have this application from an insured". Now in

my submission, the - from what I can see - but'

there is not sufficient evidence to determine this,

I can only surmise, Your Honour, but that is not

sufficient, that, firstly, someone assumed there

was an insurance policy. It would appear there was

not. Secondly - - -

HIS HONOUR:  It would appear there was not?

MR HALLIDAY: It would appear from - this is the deficiency

in this taxation, I submit. The only policy that

has turned up has not come from the respondent, it

came from FAI - it was not in the name of the

respondent; it was in two business names -

HIS HONOUR: Let us assume there was not a policy - - -

MR HALLIDAY:  Yes, Your Honour.

HIS HONOUR: Let us assume there was not a policy, but for

some reason, FAI thought there was a policy and

asked Minter Ellison to act for the company.

MR HALLIDAY:  Well then, I would say they could not do so.

It is unlawful, Your Honour. You cannot have a

party who is not a party to a proceeding taking any
part in the proceeding. It would be just

like - - -

HIS HONOUR: 

But let us assume they did, and they asked

Minter Ellison to act for the respondent, and
Minter Ellison continued to act for the respondent,

to the knowledge of the respondent, and the

respondent accepted the benefit of Minter Ellison's

services.  How, in those circumstances, can you

possibly say, there was no retainer?

MR HALLIDAY: 

In the High Court proceeding, which is what I

am dealing with at this stage, Your Honour, on two
bases: firstly, that in respect of the High Court

proceedings, an event occurred, and that event was

the liquidation of High Performance, and we have

evidence - it is not contradicted - that from that

moment of time Minter Ellison were not engaged by

that entity and their counsel submitted such before

thes supreme court in Melbourne. So, there is

certainly a period of time when they said to the

supreme court in Melbourne, "We are here acting for

FAI.  We do not have instructions from the

respondent", would be the conclusion from that.

HIS HONOUR:  But they could not act for FAI. FAI was not a

party to the proceedings.

MR HALLIDAY: Well, they submitted they were, Your Honour.

The evidence before your Court is, they appeared

Halliday(2) 9 12/3/93

before the supreme court in Melbourne saying, "We

are here acting for FAI", "We are here being

instructed by FAI".

HIS HONOUR:	But I am concerned about the solicitors acting for the respondent in the special leave application
to this Court.  I am not concerned about what
happened in the Supreme Court of Victoria.
MR HALLIDAY:	Yes. Well, that is why what I say in the

supreme court is relevant, because it immediately

preceded the High Court special leave application,

and we have therefore - at that moment we know the

evidence is they were not acting for, or instructed

by High Performance in liquidation. There is a
side argument that I should put to you shortly,

Your Honour, but the evidence is they were not, and

I submit that from that moment on, once the company

went into liquidation and was so hopelessly

insolvent, $2 million of creditors, no assets is

what they, the liquidator by law, and I would

submit any lawyer advising a company in liquidation

and a liquidator representing them, by law, could

not enter into any form of contract, unless - and

there is only one exception, I would submit, if it

was for a purpose of the liquidation.

Now, in this case, I would submit, the

liquidator could not have entered into a retainer

and Minter Ellison could not advise them to do so.

I think that - - -

HIS HONOUR:  Why could the liquidator not give a retainer in

connection with an application for special leave to

appeal brought against the company?

MR HALLIDAY:  I would submit, Your Honour, that for him to

do so, he would have to - in order to satisfy his

obligation under the Corporations Law - be able to

satisfy himself it was for a purpose for the

creditors of the company.	Now, no matter how I try
to put myself - - -

HIS HONOUR:  But why would it not be for a purpose related to the creditors of the company?

MR HALLIDAY: Because, Your Honour, there is nothing that

the creditors could gain from the liquidator

instructing solicitors to either consent to or

oppose a special leave application; no benefit

whatsoever. Nor, in my submission, could they be

harmed in any way, on this ground: firstly, of

course, the Taxation Department owed $300,000 as

above everybody, and they would not be affected in

any event by the decision in respect of other

creditors. Secondly, if the special leave

application was allowed and if the appeal went

Halliday(2) 10 12/3/93

ahead and it had succeeded, what would that mean in

respect of all the creditors? It would simply

mean, in my submission, no detriment to the

creditors whatsoever, because they, in fact, would

not be enjoying any different or extra position

that they did not have a right to in any event.	So
there is no argument, if one follows it right
through, Your Honour, on any event, that a liquidator could, in these circumstances, justify

instructing representatives to oppose a special
leave application. It is in no way for the benefit

of the corporation or in accordance with the

Corporations Law, in my submission.

I can follow that through in detail and to

every analysis I have been through that in detail,

Your Honour, and if I put myself in the shoes of

a liquidator, and say now, "In the particular

circumstances that applied, how could I justify

entering into a contract?". If it could be said

that the liquidator was able to do so in order to

get some funds for the creditors, different story,

but the High Court special leave application was

not for that.

HIS HONOUR: 

What was the point then, of bringing the application for special leave against the company?

MR HALLIDAY: 

Your Honour, in the case of my bringing the

application for special leave, then I sought to
have the right - simply the question decided, the

right to be able to have an appeal heard in the

supreme court about the decision that had been made

in the county court from the magistrates - I mean

it went through a number of progressions. Now,

Your Honour, even if one argued and said, "Well, let us say that I have succeeded and let us say

that that undid the county court decision.", that

would not affect the creditors, in my submission,

in this regard, Your Honour.

Firstly, the county court decision was not for the benefit of the creditors, in respect of 90,000

of the $95,000. It would not affect the creditor's

position, in my submission, one iota, if that

decision was undone, or if it stayed, because the

order was, money be paid not to High Performance,

but to other people.

Secondly, with respect to the magistrate's

figure of $5000: in my submission, if the appeal

had succeeded, what it is saying is that the debt

was never owed to High Performance at any time, so

therefore it logically follows that the creditors

position was not changed there either. They never

were entitled to the benefits of that $5000.

Halliday(2) 11 12/3/93

So, no matter how you analyze the position of the liquidator in respect of the High court

proceedings, there could be no justification for

ever engaging representation to oppose a special leave. Again, I can go through that in far more

detail that, but no matter how you analyse it,

there could be no case where the liquidator could

have had a reason to retain. Now that is all - - -

HIS HONOUR:  Why did you not challenge the retainer when the

special leave application came on, or before the

hearing of the special leave?

MR HALLIDAY: Well, I am not sharp enough, Your Honour. In

hindsight now, I ought to have considered that

point, however, as it turns out, in my submission,

I suffer no detriment, providing the taxation

proceeds on this point, as it should. In any

event, one could argue that the proper place for

that would not have been before a Full Court - no

need - the taxation mechanism would deal with it

comfortably, but it - - -

HIS HONOUR:  Do you have any authority which suggests that

it is open to you on a taxation to challenge the

retainer of a solicitor who was act~d for the

successful party throughout the relevant

litigation?

MR HALLIDAY:  Yes, I believe I have these references,

Your Honour: the case that both Mr Justice Dawson

and I looked at, and a number of others, the

Adams case, I think is the - - -

HIS HONOUR:	Yes, I know reference you make, I can see
MR HALLIDAY:	And a number like that, Your Honour, all deal with having to firstly establish - - -

HIS HONOUR: That arose on a taxation of costs, Adams, did

it; or did it arise on a challenge to the retainer

during the course of the litigation?

MR HALLIDAY:  I think it went even further, Your Honour, and

questioned the whole basis upon which a solicitor

may be able to get costs and, going to the question

of it, there has to be a contract of representation

and that has to include - - -

HIS HONOUR:	Yes.
MR HALLIDAY:	So, I submit, Your Honour, that there are a

number of cases that have got us this far and that

is, there has to be a contract between parties and

an offer acceptance, consideration, all those

elements have to exist and while they are not

binding authorities on Australia, I accept on the

Halliday(2) 12 12/3/93

other hand it is good law that we ought to move

upon.

HIS HONOUR:  All right. Now, to come back to what you were

putting to me earlier. You rely on this statement

of affairs that was filed by the liquidator in

which there is no reference to an amount owing to

Minter Ellison. Now, what else have you got, from

which an inference could be drawn, that there was

no contract of retainer?

MR HALLIDAY:  Your Honour, the deathly silence, the

persistent deathly silences, month after month

after month, in the face of challenge, both within
the taxation, in the face of written submissions on
my part, in the face of further challenges in the

affidavit material I put to come before

Mr Justice Dawson. In other words, there is just

so many times - - -

HIS HONOUR: But they are just relying on the presumption.

MR HALLIDAY: Well, they are attacking, Your Honour. They

are saying over and over again, "You, the

respondent", or, "You, the solicitors who claim

there was a retainer", I am saying there is not

only no evidence, I am saying there never was, and

there is good reason why there never was.

HIS HONOUR:  Yes, I know, but I am looking for evidence that

displaces the presumption, and the question I want

to ask you relates to a sentence in

Justice Dawson's reasons, where he says, on page 9:

I should add that the liquidator appointed to

wind up the respondent company confirmed the

instructions given on behalf of the respondent

that Minter Ellison should act for it in the

application for special leave to appeal.

MR HALLIDAY:  Yes, but if I go to that, Your Honour, firstly

I would say I have no quarrel with the suggestion

that Minter Ellison were acting with the knowledge

of the respondent, may have even had some

instructions.	I have no quarrel with that and that
statement by Mr Justice Dawson.	But I say to

Your Honour, it is not sufficient - - -

HIS HONOUR:  But what was the confirmation to which

His Honour there refers?

MR HALLIDAY:  Yes. There certainly is a letter, that was

exhibited by Michelle Dalton in one of her

affidavits before the special leave hearing, in

fact, which I think was to the words, "I confirm my

instructions". So there is no question - - -

Halliday(2) 13 12/3/93

HIS HONOUR:  Mr Tatarka, can you identify that letter for

me?

MR TATARKA:  Not at the present, Your Honour. I do not have

the - - -

HIS HONOUR: Is it on the Court file?

MR HALLIDAY:  Yes, it was exhibited, Your Honour, and I

think I may - - -

HIS HONOUR:	It is an exhibit to what affidavit?
MR HALLIDAY:	To an affidavit of Michelle Dalton, deposed, I

think, about 12 May 1992, thereabouts, and so - - -

HIS HONOUR:  Can you identify that for me? Thank you. Now,

in the ''Reasons for Decision of the Taxing

Officer", on page 1 - - -

MR HALLIDAY:  I think it is a reference thereto,

Your Honour.

HIS HONOUR:  I think it is in the last paragraph on that

page. The statement is made:

In an affidavit filed on 23 April 1992 on

behalf of respondent the solicitor for the

respondent deposed that she had acted for the

respondent throughout these proceedings and

continued to so act. Exhibited to this

affidavit and marked "MMD4" is letter dated 2

April 1992 from Mr Glyn Jenkins, Official
Liquidator for the respondent, to Minter

Ellison.

Is that the letter?

MR HALLIDAY:  Yes, that is the letter, Your Honour, and I

accept that statement.

HIS HONOUR:	In this letter Mr Jenkins noted that the
from the decision of the Full court of the Supreme Court of Victoria and that High
Applicant had sought Special Leave to Appeal in its former name Sacs Group Pty Ltd was the
named respondent.

And then there is a quote from the letter:

I confirm my instructions that your firm is to

act on behalf of High Performance Personnel

Pty Ltd (In Liquidation) and to oppose the

application for special leave to appeal to the

High Court.

Halliday(2) 14 12/3/93

MR HALLIDAY:  Yes, I accept all of that, Your Honour, and I

submit that if we were conducting proceedings

seeking - if I was seeking to claim a debt from a

party in any proceedings, a magistrates court,

county court, supreme court, that would go a long

way for me, but what it falls short of, and this is

the key point, and I submit that it is an important

public policy point which I would like to get on to

in a moment, Your Honour, and that is that it does

not evidence, particularly when the firm is - as I

have submitted the evidence is there - so

hopelessly insolvent and we have an officer of the

court, a liquidator, with important duties to have regard to creditors, and it does not evidence that in saying "I confirm my instructions to act" and

that "You are to oppose the application" that "I

retain you to do so, I engage you to do so, and I

accept liabilities", against the evidence that

exists - and it is not disputed - that Minter

Ellison felt that they were engaged by FAI and

therefore were being paid by FAI and I would

submit - - -

HIS HONOUR:	You mean, they were giving them instructions to act but not agreeing to pay fees to them?
MR HALLIDAY:	Not only not agreeing to pay f~es, Your

Honour, I submit that if we could find out and if

my request for subpoena was issued, it would close

this matter off. I would submit that Mr Jenkins,

being a respected liquidator, and the Taxation

Department says they have absolute confidence in him, would have said, "The basis on which you act

is you have told me FAI are liable for all these

costs, and it is on the basis that under no

circumstances whatsoever will I or High Performance

be under any liability whatsoever".

Now, that would be a sensible thing for a

liquidator to say. If a firm of solicitors says,

"Look, this insurance company is meeting all of the

costs, there are no costs to you if we go on

acting", that would be not only a sensible thing,

Your Honour, I submit that is a very probably

explanation as to why Mr Jenkins, with no funds -
there just are no funds in the account - he says

there are no assets available - how can you retain

and engage people, how can anybody, without funds.
I submit, in that evidence, that there are no

funds. That is further evidence that he could not

have possibly retained or engaged - there is no

prospect of paying.	Now, he could not take a risk
that he might have lost.	The Corporations Law

binds him not to do anything that would be to the

detriment of creditors.

Halliday(2) 15 12/3/93

So we have a law which would tie his hand.

Not only that, I would submit, Your Honour, at law

Minter Ellision would have to advise him,

"Mr Jenkins, you cannot do anything that might

render your client liable to costs unless there is

good reason to do so".

HIS HONOUR: Well, I will not be able to proceed further in

this case today. It will have to stand over to some
other day. But, Mr Halliday, it does seem to me

that we are arguing in a world of make believe.

MR HALLIDAY:	I understand, Your Honour.
HIS HONOUR:	Anyhow, the matter will stand adjourned to a

date to be fixed.

AT 9.23 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Halliday(2) 16 12/3/93