McKinnon v Commonwealth Bank

Case •

[2005] FCA 1423

•

30 SEPTEMBER 2005

FEDERAL COURT OF AUSTRALIA

McKinnon  v Commonwealth Bank [2005] FCA 1423

Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 104 ALR 621 cited

McKINNON v COMMONWEALTH BANK
VID 1200 of 2005

HEEREY J
30 SEPTEMBER 2005
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1200 OF 2005

BETWEEN:

JEANETTE BEVERLY DAWN McKINNON
APPLICANT

AND:

COMMONWEALTH BANK OF AUSTRALIA
RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

30 SEPTEMBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

  1. The application be dismissed.
  2. The applicant pay the respondent’s costs.

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


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1200 OF 2005

BETWEEN:

JEANETTE BEVERLY DAWN McKINNON
APPLICANT

AND:

COMMONWEALTH BANK OF AUSTRALIA
RESPONDENT

JUDGE:

HEEREY J

DATE:

30 SEPTEMBER 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. This is an application for leave to appeal against a decision of Goldberg J given on 23 September 2005.  There was before his Honour a notice of motion by the applicant seeking an extension of a stay granted by O'Dwyer FM for a period of 21 days.  The learned magistrate had made sequestration orders against the applicant and her husband on 26 August 2005.  The stay expired on 16 September.  A directions hearing for an appeal against the sequestration order had been listed for 19 October.

  2. Goldberg J dismissed the motion and ordered the costs of the respondent to be paid out of the bankrupt estate of the applicant.  The transcript of his Honour’s reasons has not yet been approved.  However, the merits of the proposed appeal can be assessed from the proposed notice of appeal, the grounds of which are:

    “(1)Justice Goldberg heard an Appeal of Magistrate O'Dwyer's orders given on 26 August on which were not part of the Notice of Motion and which has Direction Hearing on 19 October 2005.

    (2)Justice Goldberg heard the Notice of Motion involving the Commonwealth Bank when he has substantial pecuniary interests and in contravention of Section 34(1)(b) of the CRIMES ACT 1914.

    (3)Justice Goldberg was obviously not in a fit state to have heard the      matter and continually referred to the Bank's Counsel for advice and directions.”

  3. The first ground of appeal does not appear to make out any legal error.  The prospects of success of the appeal would plainly be a relevant matter for his Honour to consider.

  4. As to the second ground, it appears from page 2 of the transcript of the hearing that his Honour at the outset disclosed details of shareholdings in the Commonwealth Bank as a discretionary beneficiary under a family trust, a beneficiary of a superannuation fund and one of four trustees of a trust for his grandchildren.  His Honour said:

    “I make that statement as a matter of public record.  I do not believe that that shareholding is such – precludes me from bringing an independent mind to bear on this matter.  Do any of the parties have anything to say about that?”

  5. Counsel for the bank did not object.  The following exchange occurred with the applicant:

    “Mrs McKinnon:       It would probably be fair to say, due to our past dealings with Judges, particularly in the High Court, that I have got reservations, but on this occasion I do appreciate that you have given us that information.

    His Honour:               So you have no objection to me proceeding?

    Mrs McKinnon:          Not at this moment.

    His Honour:               Thank you for that.  And the same goes for Mr McKinnon?

    Mrs McKinnon:          That is correct, yes, your Honour.”

  6. In my opinion there is no substance to this ground.  I should add for the sake of completeness that at a late stage in the present hearing, because the question had not yet properly emerged, I disclosed that I was a beneficiary of a family superannuation fund that had approximately 700 shares in the Commonwealth Bank.  I do not believe that prevents me from bringing an independent mind to bear on this matter.  This holding was disclosed to the parties.  (On subsequently checking after the delivery of an ex tempore judgment I found the number is in fact 830.)

  7. The third ground of appeal, according to what I was told by Mr Ellis of counsel, whose assurance I accept and who appeared at the hearing before Goldberg J, has no foundation in fact.  There is a rather complicated history of this matter and it would not be surprising that his Honour sought advice and directions from counsel, as I did myself.

  8. Accordingly, the decision below is not attended by sufficient doubt, see Decor Corporation Pty Ltd & Anor v Dart Industries Inc (1991) 104 ALR 621. The application for leave to appeal is dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             30 September 2005

Counsel for the Applicant: Applicant appeared on her own behalf
Counsel for the Respondent: A Ellis
Solicitor for the Respondent: Alison Harewood
Date of Hearing: 30 September 2005
Date of Judgment: 30 September 2005
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