McKinnon v Commonwealth Bank (No.1)
[2004] FMCA 208
•29 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McKINNON & ANOR v COMMONWEALTH BANK (No.1) | [2004] FMCA 208 |
| BANKRUPTCY – Application to set aside bankruptcy notice – application for adjournment – application refused. |
| First Applicant: | JEANETTE BEVERLEY DAWN McKINNON |
| Second Applicant: | DONALD NEIL McKINNON |
| Respondent: | COMMONWEALTH BANK OF AUSTRALIA |
| File No: | MZ 317 of 2004 |
| Delivered on: | 29 March 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 29 March 2004 |
| Judgment of: | Phipps FM |
REPRESENTATION
| The Applicant appearing in person |
| Counsel for the Respondent: | Mr A.W. Ellis |
| Solicitors for the Respondent: | Ryrie Bridges |
ORDERS
That the application for adjournment is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 317 of 2004
| JEANETTE BEVERLEY DAWN McKINNON |
First Applicant
and
| DONALD NEIL McKINNON |
Second Applicant
and
| COMMONWEALTH BANK OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
There are before the court two applications. The first in time, is in matter MZ 1440 of 2003, which is a creditor's petition filed by the Commonwealth Bank of Australia on 17 December 2003 against Donald Neil McKinnon. The other application is matter number MZ 317 of 2004. It was commenced in the Federal Court of Australia on 15 March 2004 and was numbered V325 of 2004 in that court. It is an application to set aside a bankruptcy notice. The applicants are Jeanette Beverley Dawn McKinnon and Donald Neil McKinnon. The respondents are the Commonwealth Bank of Australia.
The bankruptcy notice is the foundation of an allegation of act of bankruptcy by Mr McKinnon in the other proceeding. An application for adjournment is made on the basis that the appeal process from a judgment in the Supreme Court of Victoria is not yet finished. The judgment is that of Byrne J in the Supreme Court of Victoria on 27 June 2001. It was for an amount of $222,985.29 and was against both Mr McKinnon and Ms McKinnon. A counterclaim was dismissed on the same day. The bankruptcy notice seeks payment of a total of $281,994.35 which is the judgment amount, plus interest of $59,009.06, calculated until 9 October 2003.
The appeal process from that order culminated in an application for special leave to appeal to the High Court of Australia which was finally dealt with, according to the Commonwealth Bank of Australia, and not finally dealt with, according to the McKinnons, on 3 October 2003. On that date it is quite apparent from the transcript of the proceedings before the High Court that the High Court pronounced an order that special leave to appeal was refused.
The McKinnons say the appeal process is not yet finished for the following reasons. Initially the application for special leave to appeal came on before the High Court in June 2003. The McKinnons’ position was that a Justice of the court who held Commonwealth Bank shares should not sit on the application for special leave to appeal. It appears that for that reason on that date in June 2003 the application for special leave to appeal was adjourned until 3 October 2003. It was dealt with by the Chief Justice, Gleeson CJ, and Gummow J, both of whom stated in response to inquiry from Ms McKinnon that they did not have Commonwealth Bank shares, and as I have already said, they pronounced an order dismissing the application for special leave to appeal.
The applicant submits that the appeal process is not finished. They allege that on 3 October 2003 the High Court was constituted by three Justices, Gleeson CJ, Gummow J, and Hayne J. They allege that Hayne J holds Commonwealth Bank shares. They have some proceedings in the Magistrates Court of Victoria under the Commonwealth Crimes Act which are listed for a date in April.
Their complaint appears to be that the High Court, when it dismissed their application for special leave to appeal, was not constituted as the transcript discloses by the Chief Justice and by Gummow J, but by three justices including Hayne J.
Two things need to be said. First, it is not for this court to inquire about the validity of an order of the High Court of Australia. The order is quite clear and it has been made. The second is that there appears to be a misunderstanding by the McKinnons of what occurred on that date. As is well known, applications for special leave to appeal to the High Court can be and usually are dealt with by a bench consisting of two Justices. What has happened seems reasonably clear, and that is, that the court was dealing with other business on that day. That other business had been dealt with or was to be dealt with by a bench consisting of three Justices. This application, which only required two Justices, was only dealt with by the two Justices. But as I have said, that is really by way of commentary. As I have said, it is not for this court to inquire about the validity of a High Court order.
Ms McKinnon has referred me to a letter which the solicitors for the Commonwealth Bank wrote to the Registrar of the High Court of Australia. That was on 10 December 2001. That contained an undertaking on behalf of the Commonwealth Bank not to execute on the judgment of Byrne J made on 27 June 2001 in the Supreme Court of Victoria until the determination of the application for special leave to appeal to the High Court. That letter dated 12 December 2001 was sent to the applicant by a Deputy Registrar of the High Court. The argument that Ms McKinnon puts is that the proceedings before the High Court are not finished. The Commonwealth Bank has undertaken not to execute on the judgment prior to the proceedings before the High Court are finished. Therefore, the Commonwealth Bank cannot proceed with its bankruptcy petition, and in any event, any proceedings in relation to that judgment in this court and in relation to bankruptcy proceedings should not be dealt with because that undertaking is still in force.
However the answer is that so far as this court is concerned the proceedings in the High Court are finished. That is the answer to the application for an adjournment. There is no unfinished business before the High Court. The application for adjournment is refused.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Phipps FM
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