Jeans v Commonwealth Bank of Australia

[2005] FCA 1771

FEDERAL COURT OF AUSTRALIA

Jeans v Commonwealth Bank of Australia [2005] FCA 1771

JOHN ANTHONY JEANS v COMMONWEALTH BANK OF AUSTRALIA
NSD 1219 OF 2005

GYLES J
30 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1219 OF 2005

BETWEEN:	JOHN ANTHONY JEANS APPLICANT
AND:	COMMONWEALTH BANK OF AUSTRALIA RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	30 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The motion remain adjourned generally.

2.        Costs are reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1219 OF 2005

BETWEEN:	JOHN ANTHONY JEANS APPLICANT
AND:	COMMONWEALTH BANK OF AUSTRALIA RESPONDENT

JUDGE:	GYLES J
DATE:	30 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I regard this matter as somewhat troubling.  I do not regard a change of trial judge to be sufficient to disturb the reasoning which led me to decline to grant leave on the last occasion.  The issues are discrete.  There may be some practical overlap in relation to the claim against the bank employee, that is hard for me to judge, but I see no particular difficulty in Wilcox J or any other judge understanding the effect of the two judgments of Hely J and I do not think that the mere change of trial judge is sufficient to disturb the previous decision.  That being so, it is perhaps best that I say little about it.  I would repeat, however, that circumstances may arise where there will be no real disturbance to the case if leave to appeal were granted. 

2. For my own part, there would appear to be some merit in having the issues which arise on the two interlocutory judgments of Hely J being looked at prior to the hearing of the application for sequestration.  This is because, without predicting what may happen ultimately, there would be little doubt that the points which the respondent to the proceeding is precluded from raising are of much more substance than those which remain.  Further, it may be that the sequestration order with all that entails may be made and yet it is conceivable that a Full Court could take a different view to that taken by Hely J, which would then leave the sequestration order to be untangled or possibly untangled.

3. On the other hand, to grant leave to appeal now would almost certainly lead to that appeal not being heard before May unless the Chief Justice could be persuaded to give it some special form of expedition and, although that theoretically would not bind the trial judge, it would certainly have an impact upon the hearing of the petition. 

4. I decline to re-open the motion at the moment.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            7 December 2005

Counsel for the Applicant:	JM Ireland QC
Solicitor for the Applicant:	Robert H Butler
Counsel for the Respondent:	AG Bell SC
Solicitor for the Respondent:	JK O’Sullivan
Date of Hearing:	30 November 2005
Date of Judgment:	30 November 2005