McKinnon & Anor v Commonwealth Bank of Australia

[2005] HCATrans 825

[2005] HCATrans 825

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

Summons

McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 6 OCTOBER 2005, AT 2.00 PM

Copyright in the High Court of Australia

MRS J.B. McKINNON:   Your Honour, I appear on behalf of myself and my husband in this matter.

MR A.W. ELLIS:   I appear on behalf of the respondent to the application.  (instructed by Commonwealth Bank Group Legal Services)

HIS HONOUR:   Yes, Mr Ellis, have you been served with this extension ‑ ‑ ‑

MR ELLIS:   I have, yes.

HIS HONOUR:   You have, have you?

MR ELLIS:   Yes, your Honour.

HIS HONOUR:   Well, Mr Ellis, to some extent it is not a matter that concerns you.  This procedure provides for the matter to be looked at by the Court, that is, the applicant’s written case before it is served on the other side.  So it is theoretically possible that this matter could be disposed of without ever being served on you.  So, in that sense, although you have an interest, at the moment it is indirect, if you follow what I am putting to you.

MR ELLIS:   I do, your Honour, yes.

HIS HONOUR:   Yes.  Well, Mrs McKinnon, I have looked at this application of yours.  The written case should have been filed by 24 June.  You attempted to file it in Brisbane on 27 June.  There is very little explanation as to why you waited until 31 August to seek an extension of time.  Can I say to you that certain of the grounds that you rely on in your special leave application are absolutely hopeless.  Justice Hayne did not sit on the application on 2 October 2003.  The Judges who sat on that occasion were Chief Justice Gleeson and Justice Gummow. 

Insofar as you seek to raise arguments concerning that matter, they have no prospect whatever of succeeding.  Insofar as you seek an order that the Court order an Order in Council to be produced, it is not a matter within the jurisdiction of this Court.  Your grounds of appeal that you seek to raise seem to me to have very little prospect of success.  However, I take the view that there is only a procedural flaw in your application in the sense that if you had filed the document on 24 June instead of attempting to file it on 27 June, the matter would be dealt with in the ordinary course.

So in those circumstances, I propose to make an order extending the time for filing your application and it will be then dealt with in the ordinary course.  I certainly will not be sitting on any special leave application concerning it, but I would not hold out much hope of it succeeding.  So unless there is something further that you have got to put, the orders that I propose to make in this matter are that the application of yourself and your husband for special leave be reinstated, that you file and serve the summary of argument and draft notice of appeal no later than 4.00 pm on Monday and the matter will then be dealt with in accordance with the ordinary purposes of the Court. 

Now, is there anything further you want to say?  You have got as much as you can hope to get, and perhaps even more.

MRS McKINNON:   Your Honour, I am just not 100 per cent sure what you mean by filing, because the draft notice of appeal, everything but the written case, we had until 30 May by Magistrate O’Dwyer to make application to the High Court.  I filed the draft notice of appeal and all the papers that Mrs Musolino said I had to do to abide by the Court Rules on 24 May and – 27 May, I beg your pardon, and we actually had until 27 May.  It was only the written case ‑ ‑ ‑

HIS HONOUR:   It is the written case we are talking about.  Did I say summary of argument, did I?

MRS McKINNON:   Yes, you did.

HIS HONOUR:   Right.  We are talking about ‑ ‑ ‑

MRS McKINNON:   A draft notice, but also the written case was faxed to the High Court office 3.58 on Friday, 24 June and I have got an affidavit and the reasons why it was late – well, it was not late.  It was on time.  It was faxed, not the hard copy.  But I was told by the High Court officer here who I believe is in the courtroom at this stage, that I could not send the copy to Mrs Musolino because we were in Brisbane.  I had to actually go to the Court and, if I am correct, and the gentleman that is in the courtroom is the gentleman I spoke to in Brisbane.  He told me I could go to the Brisbane Court and file it there. 

When I went to the Brisbane Court first thing Monday morning to file it, they told me that I had been told incorrectly and that in actual fact they had to send it to Mrs Musolino.  They could not file it in the Brisbane Court because it was a Melbourne matter.  So I left it with him.  The hard copy of the written case has been filed now and was filed on ‑ ‑ ‑

HIS HONOUR:   The Court takes the view that an order has been made deeming your application to be abandoned.  So we are going to proceed on that basis.  So you will have to file a document containing your written case by 4.00 pm on Monday.

MRS McKINNON:   Okay.  So that can be the same – you are not asking me to do anything different to what I did in Brisbane, but just do it again by 4.00 pm Monday?

HIS HONOUR:   Well, whatever document you want to file – and I assume it is this document that has got a date on it, 24/6/05.

MRS McKINNON:   Yes, yes.

HIS HONOUR:   If that is the document of which you speak, then a document in that form should be filed in the Melbourne Registry of the office by 4.00 pm on Monday.

MRS McKINNON:   I understand that, your Honour, yes, thank you.  But there are two other things that I need to ask you.  We would ask his Honour to grant a stay on all proceedings until the appeal is heard and determined and also that our bank account that has been frozen at the moment, that we have got very little money at the moment other than borrowing from our children to live and survive on, has been frozen since 20 September, that that be unfrozen and that a stay be put on until the appeal is heard and determined.

HIS HONOUR:   Well, I do not propose to make those orders.  First of all, they are not sought here in any documents and, secondly, you have insufficient prospects of success of obtaining special leave to appeal to make those orders.

MRS McKINNON:   Could I ask a stay be put on until 4.00 pm Monday, your Honour, and the account unfrozen so that we can at least buy food?

HIS HONOUR:   Well, what is the difference between now and Monday?  If there is a stay – if there is money in an account, the defendants are entitled to obtain it.  A bankruptcy notice has been served on you.

MRS McKINNON:   The bankruptcy notice is still in question, your Honour, while this appeal is still in the Court.

HIS HONOUR:   There is no appeal in the Court.  There is an application to start proceedings in the Court.

MRS McKINNON:   I do not mean to be disrespectful, your Honour, but the appeal is still in the Federal Court and there is a directions hearing still on foot in that court.  It has not been discontinued.

HIS HONOUR:   No, we are talking about what is on in here, what we are dealing with in this Court.  Now, at the moment I am prepared to make an order reinstating your application for special leave to appeal. 

MRS McKINNON:   Okay.  Well, our application today has been successful, so can we be awarded costs or costs reserved for today’s hearing, your Honour?

HIS HONOUR:   No, certainly not.  You certainly will not get an order for costs.  You have come here seeking a privilege.  If anything, you should be paying the other side’s costs.  That is the usual order in such cases.  When a litigant comes to Court out of time and asks for the Court to make an extension of time, it is that applicant who usually is ordered to pay the costs.

MRS McKINNON:   With all due respect, your Honour, it has been our experience that when the respondents, applicants have been successful we have had to pay their costs.

HIS HONOUR:   Well, that may be, but that is because of the merits.  This is a different situation altogether.  The situation is that your application for special leave is reinstated and you must file your written case by 4.00 pm on Monday.  I do not propose to make any orders in respect of stays or anything else.  If you wish to apply to the Federal Court, that is a matter for you.

MRS McKINNON:   Your Honour, could I just say one more thing?

HIS HONOUR:   Yes.

MRS McKINNON:   On 16 May Magistrate O’Dwyer set aside the…..order and the creditors petition pending the – well, on the condition that the special leave for – application for special leave to the High Court was made.  If I do that by 4.00 pm on Monday, as you are requesting, well, then do I take it that Magistrate O’Dwyer’s order would be reinstated?

HIS HONOUR:   You will have to take your own advice about that.  I am not here to give you advice about orders made by a magistrate.  I am here to deal with your application and I have granted your application and I do not propose to make any further orders. 

MRS McKINNON:   Thank you, your Honour.

MR ELLIS:   If your Honour pleases, I am instructed to ask for costs on behalf of the respondent.  I am instructed to ask for those costs on the basis that the respondent had to go to the trouble of briefing counsel to attend today.

HIS HONOUR:   So what do you say about that, Mrs McKinnon?  You have come here, you have asked for a privilege, you have been out of time, you have served a document on the Bank, why should you not pay their costs?

MRS McKINNON:   Your Honour, again without being disrespectful, I do not believe it is a privilege to have our democratic right to have this reinstated.  But, secondly, on two occasions the Bank have used our application and we have had to pay their costs for their own to bring different matters into the hearing and the last two hearings have actually – because it has been reinstated today – well, it will be by 4.00 pm Monday – the last two hearings before the magistrate and the judges we have paid the costs.  In actual fact, the creditors’ petitions hearing of both those cases should not have been heard because if the reinstatement takes place the creditors’ petition will again be set aside.  So I think the costs should be at least reserved and not awarded against us anyway.  I do not think that is fair.

HIS HONOUR:   Thank you for that.  I propose to make an order for costs against you.  The orders I will make in this matter are:

1.        The applicant’s application for special leave to appeal in this matter be reinstated;

2.        The applicants file and serve their written case no later than 4.00 pm on Monday next, 10 October; and

3.        The applicants pay the respondent’s costs of this application.

The Court will now adjourn.

MRS McKINNON:   Your Honour, could I just say ‑ ‑ ‑

HIS HONOUR:   Yes, Mrs McKinnon.

MRS McKINNON:   Your Honour, because of the distance that we have to travel, could I just clarify, when you say 4.00 pm Monday, does that mean that I have to come down to Melbourne again and file them in person?

HIS HONOUR:   No, you can file them within the next 20 minutes.

MRS McKINNON:   Okay, thank you.  But it does have to be in person?  I could not go home at the weekend and do them again and then send them?

HIS HONOUR:   You have to file your documents by 4.00 pm on Monday.

MRS McKINNON:   In person?

HIS HONOUR:   If that is the practice, that is the practice.  The practice is that you must file in person because the Rules of the Court make no provision for any other form of filing, except in person, and there is a good reason for that.  The reason is that otherwise people who have nothing to do with a case could file an application, but at least if they have to come to the Registry and file the application, then there is some chance that, a real chance, that the person who is filing the application will be the genuine person who is involved in the application.  So sometime between now and 4.00 pm on Monday you will have to file – you and your husband will have to file these applications.

MRS McKINNON:   Okay.  I do not want to be a pest, your Honour, but we do not serve them on the Bank, do we?  We only file them in the Court?

HIS HONOUR:   Yes.

MRS McKINNON:   Thank you.

HIS HONOUR:   Yes.  Adjourn these proceedings.

MR GARLING:   Before your Honour departs, may I say, in light of your Honour’s imminent attraction of statutory senility, that I have now appeared before your Honour in this Court and in the Court of Appeal on many occasions and I would regard it as a singular honour and privilege to have done so and your departure is a sad day for the legal profession.  If the Court please.

HIS HONOUR:   Thank you very much for those kind remarks, Mr Garling.

AT 2.17 PM THE MATTER WAS CONCLUDED