Pelechowski v Registrar Court of Appeal

[1998] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S16 of 1998

B e t w e e n -

KARL PELECHOWSKI

Applicant

and

THE REGISTRAR COURT OF APPEAL

Respondent

Application for special leave to appeal

BRENNAN CJ
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 1998, AT 12.08 PM

Copyright in the High Court of Australia

MR A.J. McQUILLEN:   May it please the Court, I appear for the applicant.  (instructed by Greg Walsh & Co)

MS M. LATHAM:   May it please the Court, I appear for the Registrar.  (instructed by the Crown Solicitor’s Office (New South Wales))

MR McQUILLEN:   Could I indicate, your Honour, that the applicant is here at the Court and has, I am instructed, complied with all the terms of the bail conditions that were set.  Your Honours, this - - -

GUMMOW J:   There does not seem to be any complaint about length of sentence.

MR McQUILLEN:   No, your Honour.  That was a matter that was not tied up in this application but he was concerned with the two points although, I think, of course, the problems that we thought confronted the applicant in so far as that was concerned were a matter that the Court had already determined - that the High Court had determined so far as severity.

GUMMOW J:   It did not determine anything.

MR McQUILLEN:   I can only say it is not a matter that is included in the application.

GUMMOW J:   Nothing I said was meant to foreclose its inclusion, if that is what you wish to do.

MR McQUILLEN:   No, your Honour, I would seek to rely upon it as a matter that we saw as something that was too severe in the circumstances.

BRENNAN CJ:   Then you want leave to amend your proposed notice of appeal.

MR McQUILLEN:   Yes, I would ask that.  Yes, I do.

BRENNAN CJ:   Do you have anything to say about that, Ms Latham?

MS LATHAM:   No, your Honour.

BRENNAN CJ:   Yes, very well.

MR McQUILLEN:   The first point that I would wish to make is that, at the outset, that the principle remains that the order of a competent court must be obeyed whilst it remains in force.  However, where a decision is considered to be a nullity the question arises as to whether an applicant, in this case, is obliged to comply with it.  However, no excuse is made for the fact that there was non-compliance with the learned District Court judge’s order.

The two matters, apart from the severity ground, that are raised by the application are that, firstly, the bail question and an application was made for bail and bail was granted.  The issue arose before the New South Wales Court of Appeal and bail was refused.  Reliance was placed upon the decision of Burgundy Royale.  However, his Honour Justice Gummow indicated that there had been a - - -

GUMMOW J:   That is all water under the bridge in a sense.  You are here now.

MR McQUILLEN:   Yes, it is but - - -

GUMMOW J:   You have to get special leave.

MR McQUILLEN:   Yes, except that in view of the decision of Witham v Holloway, the question of whether, in what circumstances, bail should be granted may vary because in Little v Governor of Pentridge Prison it was indicated that bail may not be available where there is civil - - -

GUMMOW J:   But the question of further bail will only arise if you get a satisfactory result here now.

MR McQUILLEN:   Yes.  Well, I do not wish to labour on that point further.  The main ground of the application is that - my submission is that the District Court is not declared, as in comparison with the Federal Court, to be a superior court of law and equity and it is, by its status, an inferior court - a court of inferior status.  So that when - - -

GUMMOW J:   What is the statutory footing on which questions of contempt are dealt with not in the District Court but in the Supreme Court ?

MR McQUILLEN:   The statutory footing was, I think, dealt with on the basis as in Witham v Holloway, your Honours.

GUMMOW J:   What I am asking you is why is not contempt dealt with in the District Court?

MR McQUILLEN:   Because the District Court is controlled by the supervisory jurisdiction of the Supreme Court.  That is essential to our application, that the District Court is supervised by the Supreme Court in all matters relating to the administration of justice in the State of New South Wales.  So that wherever a matter arises which concerns the administration of justice, the Supreme Court supervises a District Court or an inferior court and the question of prohibition cannot go to a superior court where it can to an inferior court.

Now what the applicant submits is that there is no inherency in the District Court.  However, the power to issue a Mareva injunction does not necessarily, in my submission, rely upon inherency although to get - - -

BRENNAN CJ:   Section 46 of the District Court Act confers upon that court the jurisdiction or the:

power to grant any injunction (whether interlocutory or otherwise) which the Supreme Court might have granted if the action were proceeding in the Supreme Court.

MR McQUILLEN:   Yes, your Honour.

BRENNAN CJ:   Does that extend to the granting of a Mareva injunction?

MR McQUILLEN:   No, it does not, with respect.

BRENNAN CJ:   Why not?

MR McQUILLEN:   Because one cannot imply from that statutory provision a conference on jurisdiction in a matter where the Supreme Court, one, has supervisory jurisdiction; two, that it deals with a matter involving the administration of justice because a Mareva injunction is of that nature.  It is limited in its form so far as - even in a court of superior jurisdiction, it is limited in form to the extent to which it can go.

BRENNAN CJ:   Let me put the question another way:  if this injunction had been issued by the Supreme Court, would it have been within or without the jurisdiction of the Supreme Court?

MR McQUILLEN:   If it had been granted by the Supreme Court, it would have had jurisdiction with the one exception, your Honour, and that is the comments made by Justice Deane at page 623 and 626 in Jackson, that arguably - and it is only arguable, and we say that is our main point in this application - that where a Mareva is granted after judgment, we say that even in that situation the question still remains open as to whether a Supreme Court can make an order in the nature of a Mareva injunction.

His Honour Justice Deane said in Jackson v Sterling Industries - his Honour’s judgment commences at page 622, and at page 623, near the top of the page, his Honour refers to Hospital Products Ltd v Ballabil Holdings Ltd, and then his Honour says:

Arguably -

and referring to the Mareva injunction -

it extends to the making of an ancillary order after judgment to protect the efficacy of execution -

and refers to an English authority.  His Honour then reiterates, at page 626 at the top of the page:

Even in such cases however, the order must be confined to preserving assets until after judgment or, arguably, until there has been an opportunity to seek execution.

GUMMOW J:   Your point here:  there was no attempt to seek execution?

MR McQUILLEN:   Correct.

GUMMOW J:   Before the Mareva was granted.

MR McQUILLEN:   Yes.  In fact, the Mareva was sought, we understand, some time after the trial commenced and before the case was finished.  The motion was not dealt with until after judgment.  So, no interlocutory - in effect, application was made although it was made in the sense of an interlocutory matter because it was made during the course of the trial but, in effect, it was left until after judgment when the motion was pressed or sought.  Indeed, the motion was returnable on the part-heard day which was the final day of the hearing.

So, your Honours, one could envisage that with the increased jurisdiction of the District Court that now exists, a practice could develop in the court, or become a practice, whereby orders in the nature of a Mareva injunction would become perhaps more prevalent and more frequent.

GUMMOW J:   At the stage of execution.

MR McQUILLEN:   Yes.  The difficulty, in my respectful submission, that arises is that, one, there is express reservation by his Honour Justice Deane in Jackson and, secondly, that it brings about the problem that in any type of case within the jurisdiction of the District Court when it is hearing a matter orders would be made after judgment in pursuance of not to protect necessarily the administration of justice but could be in the situation where they are in the way of attachment or some form of execution.  Thereby, the real nature of the purpose of the Mareva injunction is defeated, in my respectful submission.

CALLINAN J:   It would produce a result that you would get priorities - de facto priorities when there might be other creditors, I suppose.

MR McQUILLEN:   And thereby what happens is that the plaintiff becomes, in effect, a secured creditor.  Now, that is not the aim, as I understand if, of what the decisions or the authorities say as to what the purpose of a Mareva injunction is.  Indeed, it has been emphasised that an order in the nature of a Mareva is necessary to prevent an abuse of process.  Now, if that is the case, what concerns the position of the District Court - what would be of concern would be if a practice were to develop that this was being used rather than as a means of preventing some interference with the administration of justice, that it was merely used as an instrument whereby creditors could improve their position, become - - -

GUMMOW J:   Judgment creditors could.

MR McQUILLEN:   The judgment creditors, thank you, your Honour.  So, therefore, the qualification that his Honour Justice Deane put on these matters is, I think - although he did not say it as such and expand on it -- is what his Honour was really aiming at.  So, whilst the decision of Riley McKay and, indeed, Jackson have referred to the power of the Supreme Court or a superior court of record such as the Federal Court as inherent jurisdiction, that is not the - - -

GUMMOW J:   There is some support for why Justice Deane spoke in the provisional sense he did in a passage at 625, at about point 6:

That purpose is not to create security.....Nor is it to introduce, in effect, a new vulnerability to imprisonment for debt.....under the duress of the threat of imprisonment for contempt of court -

and so on.

MR McQUILLEN:   And that is what has happened here because the position is that the applicant has been subjected to the threat of imprisonment for debt in non-compliance with an order made after judgment in respect of - where there was a judgment against him out of the District Court, the real purpose of which was not behind the order in fact.  My respectful submission is that, as his Honour Justice Deane says at page 625, it does introduce a vulnerability for indebtedness.

GUMMOW J:   Now, you have a complaint about sentence too that has just been ventilated.  What do you say about that?

MR McQUILLEN:   Your Honour, whilst it is a matter for discretion for the Court of Appeal in contempt cases, nevertheless that discretion, in my respectful submission, miscarried in so far as a breach of the order and it was considered to be a wilful breach, not contumacious, was excessive in the circumstances.

GUMMOW J:   Of six months, was it not?

MR McQUILLEN:   Yes, six months imprisonment.  Mr Pelechowski was - of course, bail was refused and he served something in the order of three weeks.  He was a person who had no previous criminal record.  He was a person who came before the courts on notice for the first time, I believe, and the basis upon which the Court of Appeal made an order of imprisonment of six months was not elaborated upon in so far as it was relevant to any other matter.  I believe that one of the matters that was raised for consideration was that in matters where there is a breach of an order of the court, as distinct from the position where there is some contempt in the form of a media contempt, some distinction is made but, in fact, both - because in the media-type situation, not necessarily does the contemnor suffer a period of imprisonment but, indeed, it is sometimes the exception and it is considered to be because of a distinction between that and where there is a direct breach of the order of the court.  Nevertheless, I would submit that in the circumstances of Mr Pelechowski’s case that period of time was far too excessive.

BRENNAN CJ:   If special leave were granted in this case, do I take it that you would be applying for bail?

MR McQUILLEN:   Absolutely, yes, your Honour.

BRENNAN CJ:   Would the same conditions be available as have been available thus far?

MR McQUILLEN:   Yes, I am instructed so, yes, your Honour.

GUMMOW J:   Would your client continue to be represented by counsel?

MR McQUILLEN:   Yes, your Honour.  Unless there is any further matters that the Court requires some assistance on - I think I have made the point in

relation to the inherent point and the construction point on the District Court Act.  We say this is a matter that would require some consideration by the Court, having regard to what is said in Jackson’s Case by the Court, and the likelihood of the development, if it were to go unchecked, the development in the District Court, of these types of orders.

BRENNAN CJ:   Yes, thank you, Mr McQuillen.  Ms Latham.

MS LATHAM:   Your Honours, we say that there can be no doubt that the District Court of New South Wales has the power to grant a Mareva injunction and that power arises by statutory expression in section 46 of the District Court Act.            The question is really not one of jurisdiction, strictly speaking, and I say that because clearly the District Court had jurisdiction ‑ ‑ ‑

GUMMOW J:   No, no, it is a question of what is a Mareva injunction, to use that expression.

MS LATHAM:   Yes, but the question as to the power to issue a Mareva injunction in the District Court.

GUMMOW J:   No, no, on the assumption to the Supreme Court, the question is, “What is a Mareva injunction?”

MS LATHAM:   Your Honour, I will come to that squarely.  Your Honour, the doctrinal basis of Mareva injunctions has always been to prevent abuse of the court’s own process, to prevent a judgment debtor from setting at nought the judgment in favour of the judgment creditor by dissipating assets, whether they be outside the jurisdiction or within the jurisdiction.  The District Court has that power under section 46 of the District Court Act, but we go further - we say we do not need to but we go further in the sense explored by the judgments of this Court in Jackson v Sterling to the effect that every court has an implied or incidental power to protect its processes from abuse.

Your Honours, as I said, if we need to go further we can.  We do not need to go further because section 46 endows the District Court with that power, conferred statutorily, to grant Mareva injunctions; indeed, to grant an injunction in any circumstance where the Supreme Court would have that power.

BRENNAN CJ:   Yes.  Now, the problem arises this way, does it not:  this is an injunction granted after judgment to restrain the judgment debtor from dissipating the judgment debtor’s assets.

MS LATHAM:   His only asset, your Honour, yes.

GUMMOW J:   His house.

MS LATHAM:   His only asset, yes, your Honour.

BRENNAN CJ:   Now, the question is does the jurisdiction or power, whichever it may be, to grant a Mareva injunction in the Supreme Court thus far extend?  If it does not, was this order, when made by the District Court, one which was valid until set aside or is it a nullity ab initio?  If a nullity ab initio, then all things follow.  If it was valid until set aside, well then, different consequences follow.

MS LATHAM:   Your Honour, as to the first part of the issue as framed by your Honour, the Supreme Court clearly does have jurisdiction or power to issue a Mareva injunction post-judgment in aid of execution.

GUMMOW J:   Why?

MS LATHAM:   Your Honour, because - - -

GUMMOW J:   Where does it come from? Section 23 of the Supreme Court Act?

MS LATHAM:   Your Honour, in some respects it matters not because ‑ ‑ ‑

GUMMOW J:   It always matters.

MS LATHAM:   If your Honour would let me develop that point further.  In some respects it matters not because of the decision in Riley McKay which provided that whether or not it was section 23 or the inherent jurisdiction of the court, it was perhaps a matter of little difference.

GUMMOW J:   It is a matter of difference with all respect to them.

MS LATHAM:   I was only referring to the - - -

GUMMOW J:   And is not Riley McKay not this sort of Mareva injunction?  It is a pre-judgment remedy.

MS LATHAM:   It may be, your Honour, but if I can return, as I said before, the doctrinal basis of a Mareva injunction has always been to prevent the judgment debtor from dissipating assets and setting the judgment of the court at nought.  In other words, it has always been, with respect to the prevention of the abuse of its process, to prevent a judgment debtor from engaging in conduct which is inimical to the administration of justice.  Now, that is the basis upon which the inherent jurisdiction of the Supreme Court has been invoked in order to make Mareva injunctions, whether that be founded upon section 23 which is, in some respects, merely declaratory of the inherent jurisdiction of the Supreme Court.

GUMMOW J:   The Supreme Court does not have inherent jurisdiction in the totally open sense.  It cannot do what it likes.

MS LATHAM:   No, I was not putting that, your Honour.

GUMMOW J:   It has jurisdiction in this respect, ultimately derived from the Court of Chancery in England.

MS LATHAM:   Yes, and I - - -

GUMMOW J:   When you talk about inherent jurisdiction to grant injunctions, that is what you are talking about, and it comes from the Charter of Justice.

MS LATHAM:   Yes, your Honour, and I am referring to - - -

GUMMOW J:   And it has been supplemented by the Supreme Court Act.

MS LATHAM:   Yes, your Honour, and what I said was merely a summary, if you like, of the basis upon which the Supreme Court in Riley McKay found that it had the power to issue Mareva injunctions.

GUMMOW J:   I mean, do you say the Supreme Court, in its inherent power, can issue injunctions imprisoning people who do not pay their debts as judgment debtors?  Surely not.

MS LATHAM:   No.

GUMMOW J:   Because it is an unheard of thing.

MS LATHAM:   Well, of course, but, with respect, your Honour, this is not a case where it is the fact that the Mareva injunction has been granted that has led to the imprisonment of the applicant.

GUMMOW J:   Of course.  I put to you a species of order which we all agree is just impossible.  This is another species of order.

MS LATHAM:   Yes, it is, your Honour, yes, I am sorry.

CALLINAN J:   Ms Latham, I think one of the problems that certainly concerns me is the tendency that an injunction of this kind at this stage may have to interfere with an administration in bankruptcy or a winding up of a company, if it is a company, and the matter that was adverted to before, that it puts your client in a special and privileged position.  It gives your client a security, in effect.  There are no concluded views about these matters, but these are the important questions that arise in relation to an injunction of this kind at this stage - I am sorry, against the plaintiff, quite.

MS LATHAM:   Your Honour, I can appreciate what your Honour says but the - - -

CALLINAN J:   I think that is what you have to deal with.

MS LATHAM:   Your Honour, I can deal with that.  Your Honour, the English decisions which have dealt with and examined access to Mareva injunctions post-judgment, namely, Stewart Chartering and Orwell Steel and, to some extent, the decision in Jet West Ltd, have all relied upon the fact that the Mareva injunction could be granted post-judgment in aid of execution because a Mareva injunction operates in personam.  It does not operate as an attachment on the assets of the judgment debtor.  It can, as it was in Candex International, be varied in order to meet the exigencies of a given circumstance.

BRENNAN CJ:   What is that reference?

MS LATHAM:   Candex International Ltd v Bank of Zambia (No 2) (1997) 1 WLR 632, your Honour.

CALLINAN J:   Is that a decision of the Court of Appeal?

MS LATHAM:   Yes, it is, your Honour.  It was a Court of Appeal decision delivered on 22 May 1996.  A Mareva injunction was granted in that circumstance, post-judgment in aid of execution, and the judgment debtor came back before the court because of the nature of the assets which were caught by the injunction and it was varied to meet the circumstances of that individual case.  The point I am making, your Honours, is that all of those cases that I have just referred to, which are in my summary of argument, Stewart Chartering, Orwell Steel, Jet West and Candex International, that question of whether or not a Mareva injunction creates some sort of preference of the judgment creditor over and above other creditors was squarely faced and dealt with on the basis that a Mareva injunction does not operate in rem.  An attachment on goods cannot ‑ ‑ ‑

GUMMOW J:   It certainly gives one creditor, the creditor who has that remedy, a powerful weapon over the debtor, namely, the sanction of contempt of court.

MS LATHAM:   It may, your Honour, in the sense that if the judgment debtor - - -

GUMMOW J:   And so it confers an economic weapon of a sort, namely, there is a powerful inducement to comply and pay this debt.

MS LATHAM:   Your Honour, it only does that if the judgment debtor, as he did in this case, chooses to ignore the injunction and - - -

GUMMOW J:   No, no, you comply with the order because this creditor has the whip hand over you, like a secured creditor would have who could put in a receiver to the asset and so on and so forth.

MS LATHAM:   Your Honour, could I meet that by suggesting that it is perhaps expressed differently in this sense:  a Mareva injunction does not give the judgment debtor the whip hand over the judgment creditor.  It is the fact that the court has issued an injunction to prevent the abuse of its process which gives rise to the prospect, if you like, of the judgment creditor recovering the debt which is owing.  All a Mareva injunction does is restrain the judgment debtor from dissipating assets which might be brought into play in satisfaction of a judgment debt.

If there has never been - and as I understand it, certainly since this Court’s decision in Jackson v Sterling, there has not been any doubt that the basis of the Mareva injunction is to stop the dissipation of assets in order to set the court processes at nought before judgment, if that has never been in doubt, there are powerful reasons why that should remain the situation post‑judgment, why the Mareva injunction should remain in force in aid of execution - - -

BRENNAN CJ:   It just keeps the status quo until whatever processes of execution are complete.

MS LATHAM:   Precisely, and there is no reason why those two things cannot stand together.  As to the statements in Jackson v Sterling by Justice Deane - - -

GUMMOW J:   But does there have to be, first, an attempt to enforce ordinary processes of execution?

MS LATHAM:   Your Honour, Justice Deane, at the passage that my friend took your Honours to, merely speaks in terms of an opportunity to obtain execution.  There is nothing in the judgment that I have been able to find in any of the judgments in Jackson v Sterling which restrict the grant of Mareva injunction post-judgment in that way, namely, by reference to an attempt to obtain execution.  It is merely a question of the opportunity to do so.

In the instant matter, the opportunity had not arisen.  The judgment creditor was entitled to ensure that at some point when the opportunity to obtain execution was available there would be an asset which was capable of meeting that debt. 

Your Honours, as to the second part of the question framed by the Chief Justice:  there can be no question of this being a nullity because it was not a wrongful assumption of jurisdiction by the District Court.  It was not a wrongful assumption of jurisdiction because section 46 of District Court Act gave it the jurisdiction to issue a Mareva injunction.  Only if it was a wrongful assumption of jurisdiction could the injunction be said to be a nullity, to the point where the applicant is entitled to an acquittal.  Nor is it, in my submission, an erroneous exercise of the jurisdiction because there has been absolutely no demonstration by the applicant that there was any error in the District Court choosing to exercise its discretion in the way it did.  Indeed, with the benefit of hindsight, the judgment debtor did exactly what the District Court feared he would do, namely, he went out and attempted to dissipate the asset.  So, your Honours, even were it an erroneous exercise of the jurisdiction, my friend and the applicant is not entitled to the relief which he seeks. 

Your Honours, can I just raise one other issue.  This question of whether or not there was some error in the issue of a Mareva injunction post‑judgment was not argued before the Court of Appeal.  It was never raised before the Court of Appeal and, in those circumstances, in my respectful submission, without the benefit of argument before the Court of Appeal, this Court should refuse special leave.  Moreover, the question which was raised by my friend as to the status of section 46 of the District Court Act being frozen in time, as it were, so that whatever power it gave to the District Court to issue injunctions in 1973, which the Supreme Court might have issued, could not comprehend Mareva injunctions which, in effect, were born, as it were, in 1975 and developed thereafter.  That argument was never put before the Court of Appeal.

The argument before the Court of Appeal was restricted entirely to the question of whether or not there was the jurisdiction or the power in the District Court, and the Court of Appeal dealt with that argument, correctly,

in my submission, and it is dealt with correctly at pages 16 and 17 of the application book.  Unless I can be of some further assistance, your Honours, those are my submissions.

BRENNAN CJ:   Yes, thank you, Ms Latham.  There will be a grant of special leave in this matter, but the question of bail arises.

MR McQUILLEN:   I apply for bail mainly on the same terms and conditions as that - - -

BRENNAN CJ:   There will need to be some alteration to the terms of paragraph 5 of the bail order.  The question is whether that paragraph should now read as follows:

That on the date to be fixed by notice to him in writing by the Deputy Registrar of this Court as the date upon which the appeal will be heard he surrender himself to the Sheriff of the Supreme Court of New South Wales in Sydney to serve any balance of his sentence then remaining unserved in accordance with the fixed term of imprisonment imposed by the New South Wales Court of Appeal subject to such order, if any, as the High Court may order.

MR McQUILLEN:   If the Court pleases.

BRENNAN CJ:   Are those terms acceptable?

MR McQUILLEN:   Yes.  Mr Pelechowski is here, your Honour.  Yes, he understands that, your Honour.

BRENNAN CJ:   Otherwise, all the terms which were imposed before will be repeated, namely:

(1)  That Mr Pelechowski reside with his mother at 5/310 Great Western Highway, St Marys in the State of New South Wales.

(2)  That he report to the Officer-in-Charge of either Penrith Police Station or St Marys Police Station every Tuesday, Thursday and Saturday between the hours 9 am and 6 pm.

(3)  That he surrender his passport and not apply for a further passport.

(4)  That he not leave the State of New South Wales.

(5)  That on the date to be fixed by notice to him in writing by the Deputy Registrar of this Court as the date upon which the appeal will be heard he surrender himself to the Sheriff of the Supreme Court of New South Wales in Sydney to serve any balance of his sentence then remaining unserved in accordance with the fixed term of imprisonment imposed by the New South Wales Court of Appeal, subject to such order, if any, as the High Court may order.

(6)  That bail be entered before the Sheriff of the Supreme Court of the State of New South Wales; and

(7)  That the time during which he is out on bail pursuant to this order will not be taken into account in calculating the period of service of his sentence pursuant to the judgment of the New South Wales Court of Appeal.

Now, are those terms accepted?

MR McQUILLEN:   I am instructed they are, your Honour.

MS LATHAM:   Your Honour, could I just raise one issue?  Unless I am mistaken, I was under the impression that since Wade and McConochie the sentence was running and that this Court has no express statutory power to prevent that occurring or to stay the operation of the sentence.  It may well be that by the time the appeal is argued the sentence will have expired in any event.

BRENNAN CJ:   I think that will give rise to the question of whether or not the terms of the bail order, which I have just expressed in terms of the seventh paragraph, are within or without power.

MS LATHAM:   Yes, your Honour.

BRENNAN CJ:   That is something which itself can be determined by the Full Court at the hearing of the appeal.

MS LATHAM:   Thank you, your Honour.

BRENNAN CJ:   I am reminded that the question of the jurisdiction of the court to grant the injunction that was granted here raises questions that are similar to the questions which were raised in the matter of Cardile v L.E.D. Builders Pty Ltd.  It is therefore likely that the two matters will be listed either together or sequentially so that the Court may be possessed of argument on both matters as to the scope of the Mareva injunction, and will be able to give a judgment in the light of the argument in both cases.

BRENNAN CJ:   The Court will adjourn until 2.15 this afternoon.

AT 12.49 PM THE MATTER WAS CONCLUDED