McKinnon and Anor v Commonwealth Bank of Australia M115/2001

[2003] HCATrans 806

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M115 of 2001

B e t w e e n -

DONALD NEIL McKINNON and JEANETTE BEVERLY DAWN McKINNON

Applicants

and

COMMONWEALTH BANK OF AUSTRALIA

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 JUNE 2003, AT 12.31 PM

Copyright in the High Court of Australia

MRS B. McKINNON appeared in person.

MS M.B. LOUGHNAN:   If the Court pleases, I appear for the respondent.  (instructed by G.S. Ray, Solicitor)

McHUGH J:   You are Mrs McKinnon, are you?

MRS McKINNON:   Yes, your Honour. 

McHUGH J:   Now, my understanding is that you object to Justice Callinan sitting because he holds shares in the Commonwealth Bank.  I have to inform you that Justice Hayne also holds shares in that Bank, and by reason of that it would seem the matter could not go on because I would be the only judge sitting on it.  In addition, you seek an adjournment on the grounds of ill health, I understand?

MRS McKINNON:   That is right, your Honour.

McHUGH J:   If you can just take a seat for a moment.

MRS McKINNON:   Sure.

McHUGH J:   What do you say about this, Ms Loughnan?

MS LOUGHNAN:   The application for an adjournment is opposed, your Honour.

McHUGH J:   Well, we have the difficulty that the applicants object to Justice Callinan sitting and Justice Hayne is in exactly the same position.  So it is difficult in the circumstances to see how it will go on.

MS LOUGHNAN:   The Court has considered Justice Hayne’s position.  I would submit that the decision in Ebner and the…..of cases would not warrant his disqualification.

McHUGH J:   Well, no doubt that is right, in one sense, but these are litigants in person. The Judges – certainly Justice Callinan, and I think Justice Hayne – both think it would be preferable in those circumstances that they do not sit, so that justice can be seen to be done without any possible argument about it. I appreciate the situation from the Bank’s point of view. The grounds relied on hardly excite enthusiasm for their prospects of success. The idea that the State of Victoria does not exist or its Constitution does not exist does not strike one as having much prospects of success, particularly since the point does not seem to have been argued in

the court below.  Be that as it may, I do not think that there is any alternative but to adjourn this application, Ms Loughnan.

MS LOUGHNAN:   Your Honour, the question then remains of timing.  Mrs McKinnon says she is ill and requires three months.  We would ask that this matter be brought on as soon as possible.  We have been waiting two years since judgment to enforce our judgment.

McHUGH J:   Is there a stay?

MS LOUGHNAN:   There is an undertaking not to execute until the resolution of the special leave application.

McHUGH J:   Yes.  Now, what do you say about the length of the adjournment, Mrs McKinnon?

MRS McKINNON:   Your Honour, as far as the stay is concerned, we made application to the High Court to have a stay heard by the Court.  Before that was heard in December, the Bank on their own undertaking did not want to go to court and had the court judge that, so the stay was not put in place for that reason.  The Bank on their own undertaking have assured us that nothing will happen till the appeal is heard.  The doctor has given me three months to regain my health and be prepared to continue the appeal, but the three months was my opinion because, I suppose, through Mrs Musolino, I understood that the Court would not hear any case again for three months.  But if it has to be sooner, well, then I guess ‑ ‑ ‑

McHUGH J:   It will have to be sooner, because the Bank has a judgment in its favour.  It is entitled to enforce it.  As I indicated a moment ago, you may be able to persuade this Court that there is some substance in your application but, having read your submissions, they do not seem to strike me as having great prospects of success.  This is an application against a refusal of leave to appeal, which makes it even all the more difficult to succeed.

I think that the proper course, in your interests and in the interests of the Bank, is to adjourn the matter until the next sittings of this Court in Melbourne, on which time the matter will go on for hearing and hopefully you will be ready to argue it.  If you are not, then you will have to seek some other means.  At the very least, the question of the Bank’s right to enforce its security will have to be dealt with.  They cannot be held out of their judgment. 

MRS McKINNON:   I understand that, your Honour.  Could I just make a comment that the Bank has already sold all our property.  There is no security at present.  They have already sold it.

McHUGH J:   I see.  They have sold the property?

MRS McKINNON:   They have sold ‑ ‑ ‑

McHUGH J:   That is what I thought – I had noticed something.

MRS McKINNON:   So it is not a question of them holding out – they would have to go through the procedure of bankruptcy and getting our other property that they have no security over.  So they cannot be disadvantaged by any demands.  They have had the opportunity to sell the properties to the maximum that we owe them and they have not taken that opportunity.  There is a shortfall ‑ ‑ ‑

McHUGH J:   It is one of your complaints, I thought I saw somewhere or other, that they sold it at an undervalue.  Is that ‑ ‑ ‑

MRS McKINNON:   Absolutely.  And there is also, your Honour, the question that we still allege that one of the properties has not been sold, although the Bank have sworn they have sold it.  They have not…..the contract for sale. 

McHUGH J:   The matter will be adjourned to the next sittings but, Mrs McKinnon, it is expected to go on for hearing on that date.  Hopefully, you will be in a position to argue it on that day.

The other matter that both sides will have to bear in mind is that there may be a question as to whether or not the case can be heard by Judges who do not have any shareholding in the matter.  I am not aware of shareholdings of other members of the Court in respect of the Commonwealth Bank but it is quite possible that a number of other Judges also have shares.  It may be that, apart from myself, there is no other Judge who could hear this application, in which case as a matter of necessity it would have to be heard by Judges who hold shares in the Bank.

If that is a problem, the parties will be notified before the next hearing date and if you object, Mr and Mrs McKinnon, you will have to be prepared to argue that point as at that stage.  Accordingly, we will adjourn the present application to the next sittings of the Court and the question of costs can be reserved.

We will now adjourn the Court to reconstitute.

AT 12.41 PM THE MATTER WAS CONCLUDED