McKinnon & Anor v Commonwealth Bank of Australia

[2006] HCATrans 379

[2006] HCATrans 379

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M56 of 2005

B e t w e e n -

DONALD NEIL McKINNON AND JEANNETTE BEVERLY DAWN McKINNON

Applicants

and

COMMONWEALTH BANK OF AUSTRALIA

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 AUGUST 2006, AT 9.04 AM

Copyright in the High Court of Australia

KIRBY J:  

Background

This application concerns the attempts of the applicants to challenge the validity of a bankruptcy notice issued by the Official Receiver on 10 October 2003.  That notice required the applicants to pay the sum of $281,994.35.  The notice was based on a judgment of the Supreme Court of Victoria of June 2001 requiring the applicants to pay the respondent bank a sum of $222,985.29 which the bank asserted was owing and unpaid.

The applicants raised three complaints about the notice.  The first concerned the failure to serve each of them with the notice at the same time; the second concerned the effect of their alleged entitlement to a stay of the execution of the judgment of the Supreme Court of Victoria pending proceedings in this Court; and the third concerned an allegation of an abuse of process on the part of the Bank.

Before Federal Magistrate Phipps, on 29 March 2004, the applicants’ application for an order setting the bankruptcy notice aside, failed.  The Federal Magistrate found that there was no defect in the notice because of the different times of service; that the individual notices had not been served until after this Court had dismissed the applicants’ special leave application brought in respect of the judgment of the Supreme Court of Victoria; and that the suggested basis of misconduct on the part of the Bank, to found the claim of abuse of process, was not made out. 

The applicants then sought to appeal against the Federal Magistrate’s decision to the Federal Court of Australia.  Their appeal was decided by Gray J on 7 April 2005.  His Honour rejected the first and third grounds in terms that do not invite comment or re-examination.  There is no reason to doubt the correctness of what his Honour said.  However, in respect of the supposed relevance of the proceedings that had been pending in this Court, the applicants sought to advance an additional argument. 

It seems that the original application for special leave to appeal first came before this Court on 20 June 2003.  On that day, two of the three Justices constituting the Court indicated that they held shares in the respondent bank.  The application for special leave was accordingly adjourned.  On 3 October 2003, the application was relisted and special leave was refused.  Before Gray J, the applicants contended that Hayne J (one of the Justices who had previously said that he held shares in the bank) participated in the decision to refuse special leave.  According to the reasons of Gray J “the transcript of the proceedings before the High Court show that it was determined by the Chief Justice (Gleeson CJ), and Gummow J, both of whom, in response to questions from the first-named applicant said that they did not hold any Commonwealth Bank shares”.  On the basis of this transcript, that should have been an end of the matter.  However, the applicants have continued to allege the participation of Hayne J.  On that basis, they contend that the disposition in the Federal Court of their challenge to the validity of the bankruptcy notice miscarried and that this Court should grant special leave as the only way of affording them the opportunity of securing a decision by a court, constituted by judges who have no interest in the respondent.

The applicants’ draft notice of appeal raises many grounds, repeating arguments that were rejected below by the Federal Magistrate and the Federal Court.  Their written case makes reference to the suggested requirements of Magna Carta; to the supposed nullity and voidness of the decision not to grant the applicants special leave to appeal from the judgment of the Supreme Court of Victoria; and to certain extraneous proceedings which the applicants state that they have initiated.  We have carefully considered the written case; an affidavit filed by Mrs McKinnon; and the reasons of the courts below.  We note that the respondent bank has entered a submitting appearance, consenting to any order of this Court save as to costs.

Disposition

This application has no prospects of success.  Even if some of the issues which the applicants wish to agitate might at some time warrant consideration by this Court, their case does not afford an occasion suitable for such exploration.  So far as the supposed participation of Hayne J in the disposition of the special leave application is concerned, following Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, it does not follow that a judge’s holding of shares in a party, such as the respondent bank, necessarily requires the recusal of that judge. Especially is this so where (as is acknowledged) the holding has been declared to the parties and is on the public record.

However, as the transcript of this Court indicates that the only Justices who participated in the disposal of the special leave application concerning the applicants were Gleeson CJ and Gummow J, who had no shareholding in the bank, the evidentiary record affords no foundation for a complaint that another Justice took part in the dispositive order.  There is therefore no prospect, in the present state of the record, that any appeal, based on that supposed issue, would have any prospect of success.

Otherwise, we see no error calling for the intervention of this Court in the disposition of the proceedings in the Federal Court by Gray J.  The application should accordingly be refused.

Order

Pursuant to r 41.10.5 of the High Court Rules, we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish that disposition signed by Callinan J and myself.

AT 9.09 AM THE MATTER WAS CONCLUDED