Hammond v JP Morgan Trust Australia Limited & Anor

[2012] HCATrans 263

[2012] HCATrans 263

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S298 of 2012

B e t w e e n -

PATRICK HAMMOND

Applicant

and

JP MORGAN TRUST AUSTRALIA LIMITED (ACN 050 294 052)

First Respondent

TRACIE HAMMOND

Second Respondent

Office of the Registry
  Sydney  No S306 of 2012

B e t w e e n -

TRACIE HAMMOND

Applicant

and

JP MORGAN TRUST AUSTRALIA LIMITED (ACN 050 294 052)

First Respondent

PATRICK HAMMOND

Second Respondent

Application for special leave to appeal

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON THURSDAY, 18 OCTOBER 2012, AT 10.15 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   Mr Hammond, you appear for yourself?

MR HAMMOND:   I do, Chief Justice.

HIS HONOUR:   Thank you.Now, your wife is not appearing?

MR HAMMOND:   I would seek leave to appear for her, Chief Justice.  I have filed a letter of authority in the Registry this morning.

HIS HONOUR:   Yes, I have read that.  However, I am not inclined to grant you leave to appear.  I have her application before me and I have your affidavit in support of it and no doubt you will make your own submissions in relation to your application.  Mr Stoljar?

MR J. STOLJAR, SC:   May it please the Court, I appear with my learned friend, MR P.T. NEWTON, on behalf of the first respondent in each application.  (instructed by Kemp Strang Lawyers)

HIS HONOUR:   Yes.  Now, Mr Stoljar, can I just clear up one or two practical matters with you?  In terms of the writ, what I am looking to is having the special leave applications listed for hearing in the Sydney list on 16 November.  Now, what I want to know is what, in the absence of a stay, is likely to happen on the writ of possession in the meantime? 

MR STOLJAR:   As I understand it, your Honour, the current contemplation is the writ would be executed this month on 24 October, absent of course a stay.

HIS HONOUR:   Yes.  Now, what in fact is the process that occurs?  Does that involve an immediate eviction?

MR STOLJAR:   As I understand it, that would be in substance the case, yes, your Honour. 

HIS HONOUR:   Because I remember a practice – this is going back a long way now to my days in Western Australia – in which a bailiff or sheriff would leave the occupiers, as it were, in possession pending the arrangement of a sale.

MR STOLJAR:   Could I just clarify that for one moment, your Honour?

HIS HONOUR:   Yes.

MR STOLJAR:   I am instructed that the current practice in New South Wales is different, your Honour, in that if the writ is executed then it would be implemented on that day, that is to say that the eviction would take place on that day.

HIS HONOUR:   Very well.  Assuming that the matter could come on for hearing of the special leave applications on 16 November, would you have any instructions in relation to the execution of the writ?

MR STOLJAR:   As I stand here, I do not have any instructions, your Honour, but I would expect that I would obtain such instructions.

HIS HONOUR:   How long would that take you?

MR STOLJAR:   We can make a telephone call now, your Honour.

HIS HONOUR:   All right.  I am just, as I say, exploring practicalities here.  Thank you, I will just speak to Mr Hammond.  Mr Hammond, you have heard my exchange with Mr Stoljar.  I propose to put your special leave applications on for hearing in the Sydney list on Friday, 16 November and I will be making some directions for filing of written submissions between now and then with a timetable.  That means the matter we are concerned about is the writ of execution.  It may be that Mr Stoljar will be able to get some instructions in relation to the execution of the writ which might make the application for the stay academic.  So I am going to adjourn for a short time for a few minutes to enable him to get instructions as to what their position is and then we will come back and see where we go from there.

MR HAMMOND:   If the Court pleases.

HIS HONOUR:   Yes, all right.  Yes, Mr Stoljar?

MR STOLJAR:   Sorry to interrupt.Your Honour, I can indicate I have just, while your Honour has been speaking with Mr Hammond, obtained some instructions and in the event that the matter is listed in the special leave list on 16 November, my client would not seek to execute the writ prior to that time.

HIS HONOUR:   Can I take that as an undertaking, Mr Stoljar?

MR STOLJAR:   Yes, your Honour.

HIS HONOUR:   All right.  Thank you.  Mr Hammond, you now have the benefit of an undertaking from the respondent in each of these matters that it will not seek to execute the writ of possession prior to the hearing of your special leave applications which will now be on 16 November.  So you have got that as a formal undertaking to the Court which has the same legal effect as a stay, all right.

MR HAMMOND:   I understand, Chief Justice.

HIS HONOUR:   Now, what I want you to be able to do is to – I will need to make some directions about filing of summaries of argument and you and your wife will each need to file a summary of argument in support of your respective special leave applications by 30 October.  You can sit down to make notes of these things if you like.

MR HAMMOND:   Thank you.

HIS HONOUR:   Then I propose that in each case the first respondent file and serve a summary of argument by 6 November, and that you file and serve any reply by 13 November.  Mr Stoljar, are those times suitable to you?

MR STOLJAR:   Yes, your Honour.

HIS HONOUR:   All right.  Let me just formulate some orders then.  I propose to make orders in relation to the summons in each case in the following terms:

1. Upon the undertaking of the first respondent not to execute the writ of possession issued on 12 April 2012 prior to the hearing of the special leave application on 16 November 2012, the application for a stay be dismissed.

2. The applicant is to file and serve a summary of argument by 30 October 2012.

3. The first respondent is to file and serve a summary of argument by 6 November 2012.

4. The applicant is to file and serve any reply by 13 November 2012.

5. Liberty to apply on 24 hours notice.

6. The cost of the summons filed on 15 October 2012 be costs of the special leave application.

7. The special leave application be included in the Sydney list for 16 November 2012.

8. The Registrar to give further directions in relation to the preparation of application papers.

Now, it may be that it is impracticable to require the preparation of an application book but we will have to make sure that there is a complete set of papers for each of the Judges sitting on the panel. 

Anything further arising out of that, Mr Hammond?

MR HAMMOND:   No, thank you, Chief Justice.

HIS HONOUR:   Yes.  Mr Stoljar?

MR STOLJAR:   No, your Honour.

HIS HONOUR:   All right, thank you.  The Court will now adjourn.

AT 10.25 AM THE MATTERS WERE ADJOURNED