Rayner & Anor v ANZ Banking Group

[2002] HCATrans 323

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P23 of 2002

B e t w e e n -

DAVID KENNETH RAYNER and SUSAN JOY RAYNER

Applicants

and

AUSTRALIA AND NEW ZEALAND (ANZ) BANKING GROUP

Respondent

Application for a stay

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 21 AUGUST 2002, AT 4.00 PM

Copyright in the High Court of Australia

MR D.K. RAYNER appeared in person.

MR M.J. HAWKINS:   I appear for the respondent, your Honour.  (instructed by Clark Whyte)

HIS HONOUR:   You will have seen in the affidavits an affidavit by Mrs Rayner asking that the Court authorise Mr Rayner to appear on her behalf.  Do you have any objection to that?

MR HAWKINS:   No, your Honour, no objection.

HIS HONOUR:   Yes, thank you very much.  Yes, Mr Rayner.

MR RAYNER:   Your Honour, we are looking ‑ ‑ ‑

HIS HONOUR:   You have leave to appear, or at least to speak for your wife as the other applicant in the matter, so that you can speak at her request.

MR RAYNER:   Thank you, your Honour.

HIS HONOUR:   Now, let us just get clear the affidavit material that you want to rely on so that we have the factual basis for the case before us.  Would you just identify the affidavits that you ask that I read.

MR RAYNER:   Simply the one dated 14 August ‑ ‑ ‑

HIS HONOUR:   Just a moment.  I have one dated 13 August.  Is that the one you are referring to?

MR RAYNER:   Yes.  Sorry, your Honour.  It must have been filed on the 14^th.

HIS HONOUR:   The affidavit of 13 August.  There were two earlier affidavits by you in support of the application for an extension of time for filing the application for the grant of special leave.  I suppose that contingently I should have regard to that as being relevant to the principal proceedings that are before the Court in relation to which the present application is attached.  So that is an affidavit of 26 March 2002.

MR RAYNER:   Correct, sir.

HIS HONOUR:   And you read that affidavit?

MR RAYNER:   It is a bit difficult, your Honour.  New things have come to light.  That is why the affidavit of 13 August was filed and a minute of proposed orders seeking leave to amend or substitute further grounds, or amended grounds, of the proposed appeal and those grounds will touch upon this application.  It is to do primarily with the conduct of the respondent leading up to obtaining the summary judgment.

HIS HONOUR:   Yes, but you have to have a foundation in this Court to which your current application, which, as I understand it, is for a stay, has to be attached.  Therefore, in a sense, you have to have the principal matter which is before the Court in order.

MR RAYNER:   Yes.

HIS HONOUR:   So that I will have regard to your affidavit of 26 March 2002 and the affidavit of 13 August 2002.  There was an affidavit by your wife but I think that related only to the question of your speaking for her today.  That is an affidavit of Susan Joy Rayner which is sworn 13 August 2002.  Do you ask me to read that as well?

MR RAYNER:   I do, sir.

HIS HONOUR:   Yes, very well.  I will read those three affidavits.  Are there any other affidavits that you have filed?

MR RAYNER:   Not that I am aware of, no.

HIS HONOUR:   No.

MR RAYNER:   As I said to you before, sir, the problem is new material has arisen since those affidavits were filed and that is why before I will proceed with the application for a grant I would seek leave to file amended or supplementary grounds and possibly more material, more affidavit material, as some of the material ‑ ‑ ‑

HIS HONOUR:   Well, let us take this by steps.  The first thing is that I have to ask Mr Hawkins whether he has any objection to the three affidavits which I have identified:  the two by Mr Rayner and the one by Mrs Rayner.  Mr Hawkins, do you have any objection to those affidavits or do you wish to cross‑examine Mr Rayner or Mrs Rayner on their affidavits?

MR HAWKINS:   I do not wish to cross‑examine on the affidavits.  The affidavits I have are one sworn 11 July 2002 – that was in the Supreme Court, sorry – an affidavit of Mrs Rayner of 14 August in the High Court and an affidavit of Mr Rayner sworn 26 March in the High Court.  I do not have a copy of one sworn 13 August in the High Court.

HIS HONOUR:   The affidavit by Mr Rayner sworn 13 August, you do not have that?

MR HAWKINS:   No.

HIS HONOUR:   I will have to ask you, Mr Rayner, have you a copy of that that you can give to Mr Hawkins?  It is not a very long affidavit.  It is  only of five paragraphs.

MR HAWKINS:   Yes, I have no objection to Mr Rayner referring to that affidavit.

HIS HONOUR:   Yes, very well.  I will read those three affidavits in the course of these proceedings.  Now, I also have before me an application book which contains documents that are referred to in relation to the chambers application for a stay.  That was filed by your solicitors, I think, Mr Hawkins, is that correct?

MR HAWKINS:   Yes.  We thought ‑ ‑ ‑

HIS HONOUR:   Does Mr Rayner have a copy of that compilation of documents?

MR HAWKINS:   Yes, he does.

HIS HONOUR:   Yes, very well.  Is there any other material or evidence that the respondent wishes to place before the Court in this application?

MR HAWKINS:   No, your Honour.

HIS HONOUR:   Very well, thank you very much.  Mr Rayner, do you have that compilation of documents relevant to the application for the stay?

MR RAYNER:   Yes, I do, your Honour.

HIS HONOUR:   Do you have any objection to my receiving and having regard to any of the matters in that compilation?

MR RAYNER:   There is some issues about the judgment itself.  I do not know whether this is the appropriate time to object to that.  The master’s judgment, there is errors there and there is also errors in the chronology of events.

HIS HONOUR:   Perhaps you can – I think the master’s judgment, or reasons for judgment, would be part of the formal record of the court below and normally that would have to be received by this Court to know what everyone is talking about, so that I will receive that but I note that you will have some criticisms or comments or objection to the content of that judgment and you said there was a second objection.  What was that?

MR RAYNER:   The chronology of events.  That also ‑ ‑ ‑

HIS HONOUR:   Where do I find that?  I do not seem to have a chronology.

MR RAYNER:   Well, it was served on me, your Honour, last week, dated 15 August.

HIS HONOUR:   Just a moment.  That is attached to the respondent’s summary of argument in opposition to your application for the stay, is it not?

MR RAYNER:   That is correct, yes.

HIS HONOUR:   And what is the nature of the objection to the chronology?

MR RAYNER:  

1992 to 1998     Applicants regularly paid instalments       Master’s
  due under the mortgages, but fell into       reasons,
  arrears from early 1998.  para 5

That is a complete misrepresentation of what happened in the period of 1992 to 1998 and forms the ‑ ‑ ‑

HIS HONOUR:   Well, that is really a commentary on whether the chronology accurately reflects the master’s reasons, is it?

MR RAYNER:   Not really, your Honour.  It reflects that the affidavit that the Master had at the time was deliberately misleading.

HIS HONOUR:   Yes, but ‑ ‑ ‑

MR RAYNER:   It is a central issue to the argument for a stay, your Honour.  The master’s judgment relied on an affidavit of an authorised officer of the Bank which clearly now, we can demonstrate to this Court, was a complete fabrication and completely and totally misrepresented what had happened during the course of the accounts and breaches the requirements of Order 14 of the Rules of the Supreme Court in applications made for summary judgment, particularly relating to the verification of facts and deposing as to a belief.

HIS HONOUR:   Now, Mr Rayner, I have to explain to you something which is extremely important and I would like you to concentrate on my explanation. This Court has held in a number of cases, including cases involving the Mickelbergs and the case involving Eastman, that because of the terms of the Constitution it cannot receive new evidence in an appeal. The reason for that is that the Court has held that the word “appeal” when used in the Constitution giving this Court jurisdiction in hearing appeals from Supreme Courts of the States is involved in a strict appeal and can only deal with the matter on the basis of the record of the court below. Unlike Full Courts or other appellate courts in Australia, the High Court can in no circumstances receive fresh evidence or new evidence.

I took a different view but I was dissenting – and that is the view of the Court and I have to apply that law.  Therefore, there is absolutely no way, no way whatsoever, that you can get new evidence, fresh evidence, different evidence, before the High Court of Australia.  The only way you can advance your appeal, and therefore an application for a stay related to it, is on the basis of the record of the courts below.  Have I explained that to you clearly?

MR RAYNER:   You have explained it very clearly, sir, but I do not consider it to be new evidence.  I consider it to be a misrepresentation to the court below.  I do not know whether that constitutes new evidence or fresh evidence, but the court was ‑ ‑ ‑

HIS HONOUR:   But the only way you could establish any misrepresentation would be by trying to establish in this Court that there was misrepresentation and that would involve you bringing fresh or new evidence to contrast with the evidence that was adduced in the court below and that is the thing on which this Court has said cannot in any circumstances be done because of the terms of the Australian Constitution.  Do you understand that?

MR RAYNER:   I do understand that, sir, but it is not ‑ ‑ ‑

HIS HONOUR:   There are remedies that may be available to you – and I do not know whether they are – which are of a different proceeding, which is to secure relief in the circumstances where a party alleges that a judgment was obtained by fraud.  In those circumstances, there are causes of action that you can proceed before the court below in order to have the judgment stayed and set aside on the ground that it was obtained by fraud. 

Now, I do not know whether you are alleging that and I do not know whether that would be applicable, but it has nothing to do with the High Court of Australia.  We cannot do anything to stay or prevent the operation of a judgment on such a basis.  All we can do in relation to the Supreme Court of a State and a judgment of that court is to hear an appeal and, as I have told you, an appeal cannot in any circumstances involve any new, fresh, different evidence.

MR RAYNER:   I do not believe – I understand perfectly what you are saying, but it was the way the evidence was presented.  It was designed to mislead the court.

HIS HONOUR:   Can you prove that on the basis of the transcript of the case below or do you need new evidence in order to establish that?

MR RAYNER:   It is all on the court – no, your Honour, I can prove that on the court record and the documents filed on the court record and the transcripts.

HIS HONOUR:   I do not have the court record or the transcripts – none of them.  You have not put those before me.

MR RAYNER:   No, sir.  We did not have the financial means to collect the information and put it before this Court in the time we had.  We were living on a very, very basic salary and that is why I ‑ ‑ ‑

HIS HONOUR:   I am sorry about that, Mr Rayner, but I can only act on evidence.  I am a judge and I cannot just act on statement.  I have to have evidence and if I do not have evidence, then I have no authority to make orders that bind other parties.

MR RAYNER:   Well, we simply did not have the means to get the documents off the court record and put it before your Honour.  It was not act of being smart.  It was just the circumstances at the time.

HIS HONOUR:   Well, I understand that and I do understand the difficulty when people are not represented and do not have the means, but the fact is that a judge cannot act simply on say‑so.  A judge has to have evidence.  You would object if any orders were made against you without evidence and if I do not have the evidence, then I have no foundation in which to give you relief from the orders made in the court below.  Do you understand that?

MR RAYNER:   Yes, I do, sir.

HIS HONOUR:   Well, what are we to do then?

MR RAYNER:   I think perhaps a few day to be able to present the relevant material to your Honour.  I do not know.  We are not in a position to obtain it and I do not think that litigants should be able to enjoy the fruits of litigation that have been obtained in such a manner and that the interests of the advancement of justice would say – allow your Honour to at least see the material before deciding whether to grant a stay or not.  It is entirely in your discretion, your Honour, because, as you say, you are the judge.

HIS HONOUR:   My understanding is that this case was advanced urgently today before me as the duty Judge and dealt with by video link to Perth because there was an element of urgency in the matter and that any order that was to be made by this Court to prevent the coming into operation of the Supreme Court judgment, or its carrying into effect, had to be made today.  Was that correct or not?

MR RAYNER:   Today was the last day.  The application was made some weeks ago and I was given today’s date.  This is the final date.  The application was made probably two and a half weeks ago.  This was the first date I was given.  I actually was pursuing a date in the middle of July and they said I could get the first available date after 6 August, and that is what we have been trying to work towards.

HIS HONOUR:   Yes.  Well, you must have known when you had the matter listed today that you would have to have some evidence on which to support your application.

MR RAYNER:   Well, again ‑ ‑ ‑

HIS HONOUR:   You see, I am here, you are here, the Bank is here, everybody is ready and if you do not have the evidence to provide the foundation for your application, then I am likely to have an application by the Bank that I just dismiss the application because you put everybody to a lot of trouble and you are not in a position to prove your case.

MR RAYNER:   I understand that.  So justice is only available for those with the capacity to be able to present their evidence in the cogent form.  If you have difficulties, then I guess justice does not apply.

HIS HONOUR:   No.

MR RAYNER:   The same as the case the whole way through has been hallmarked by that very attitude.

HIS HONOUR:   Well, justice applies but it has to be justice to both sides, you see, and if you do not come along with the evidence, then normally applications are dismissed.

MR RAYNER:   I appreciate that point, your Honour.  I certainly do but I would just ask the Court to have regard to the very parlous financial circumstances flowing as a consequence of this entire proceedings and permit the opportunity to present the material to you so that the decision you may make is at least based on proper evidence before you.

HIS HONOUR:   Yes.  Well, I think I had better hear what your opponent has to say about this because we will have to see what we can do today, if anything.  Mr Hawkins, what do you say?  Apparently there is an application now for a short adjournment.  I would certainly not contemplate making any order of a stay in the meantime, but is there anything going to happen within the next couple of days or not?

MR HAWKINS:   If I could just take instructions on that, thank you, your Honour.

HIS HONOUR:   Yes, thank you.

MR HAWKINS:   My instructing solicitor is behind me.

HIS HONOUR:   Yes, very well.  You just take your time.

MR HAWKINS:   Yes, thank you.  Your Honour, I am instructed to ask that the application be dismissed.  That, of course, would not mean the end of the application for special leave but, in this matter, your Honour, the affidavit that annexed the bank statements was put before the master and in this Mr Rayner has had a number of opportunities to put material before the court.  As your Honour will have seen, he has been back before the Full Court of the Supreme Court on three occasions.

HIS HONOUR:   Yes, I understand that, but he tells me that he does not have the means.  I mean, as I explained to him, justice has to be justice to him and his wife but also justice to the Bank.  But the Bank is a large enterprise, well resourced and well lawyered.  He is appearing before me as a litigant in person without means and he says that he has not had the means to get this material before the Court and I rather inferred that he would be able to do that in the next few days and I cannot really see that there is any great prejudice to the Bank if the matter is stood over.  I would not be contemplating making any order in the meantime.

MR HAWKINS:   Yes, your Honour.

HIS HONOUR:   The only inconvenience that I have to take into account is that you and your solicitor and the Bank are here and possibly that any costs order I make as a result of the application for the adjournment might not be met.

MR HAWKINS:   Yes, I hear what your Honour says and I understand what your Honour says and why your Honour says it.  The reason I am instructed to request that the application be dismissed is that Mr Rayner’s history is of making broad and sweeping general allegations without ever identifying material or stating the fact behind the allegation and that is why I am instructed to request that the application be dismissed, but that is all that I wish to say.

HIS HONOUR:   Yes, thank you.  Thanks, Mr Hawkins.  Well, I will just ask what Mr Rayner has to say in answer to that.

MR RAYNER:   I guess, your Honour, that I am accused of making broad and sweeping statements because I do not do it a lawyerly fashion, but everything I have said to you I can back up.  The Bank knows this.  I can prove from the record of the court below that the court was completely misled and so was I.  If I had had counsel acting for me, this might have been over two years ago, but first of all you have to try and understand the law, then figure out how to approach your strategy to defending the matter.

But there would be no doubt in my mind, your Honour, that I can put before you materials taken straight from the court below which will demonstrate conclusively that there has been an appalling attempt to mislead the court to obtain a judgment without a trial.  It is a very, very concerning act that a bank of the size of the respondent has gone to the ends that it has to obtain a judgment.  It is quite outrageous, I guess, and the point is that the material that I will put before the Court, not in a broad and sweeping fashion, but in a very concise and very precise fashion, will show that there is a very distinct possibility that families have been put out of their homes when they had a legitimate defence.  It is a very serious matter, your Honour, very serious.  If you do not want to a grant a stay and they kick us out of the house, well, so be it, but we will still come – we will take it to the next step because it is important.

HIS HONOUR:   Yes, but what is your answer to the complaint that you knew that you had a limited stay, a very limited stay, from the Full Court of the Supreme Court of Western Australia – Justices Wallwork, Murray and Parker – that you knew that this was the last day, that the matter was listed today exceptionally and is being dealt with by video link because of the urgency, that you have turned up making an application, that you must know that any case has to depend on evidence and that you have not put the evidence before me?  I mean, it is just basic.  Even in ‑ ‑ ‑

MR RAYNER:   Basic for – sorry.

HIS HONOUR:   ‑ ‑ ‑ even in a developing country they would know that judges cannot make orders without evidence.  So why should I adjourn the matter, causing further costs to be run up and inconvenience, when you knew that the matter was listed today and you did not bother to put the evidence before the Court?

MR RAYNER:   It was not a question of not bothering, sir.  I just could not.  It takes money to go and get paperwork photocopied and bound.  Ten dollars to do that might seem like a piffling amount to a Judge of the Court.  It is the difference between being able to drive to work or put food on the table.  That is ‑ ‑ ‑

HIS HONOUR:   How long do you need to put your evidence before me in support of this application?

MR RAYNER:   Well, I could have the whole lot done within a week, get it photocopied, get it bound, get it presented, serve it – seven days, not a problem.  I do not have the capacity to type material.  I have to get a friend to do that.

HIS HONOUR:   Yes.  We cannot fix the date now, if I adjourn the matter, because we have to make inquiries.  We have to borrow from the Federal Court this facility for video link and therefore I could not give a time now, but if you get an adjournment, I am afraid it would have to be on the basis that you ordered to pay the costs of the Bank of the hearing before the Court today because you ought to have been here, when you were given notice of the hearing, with all the evidence that was necessary to support the hearing and you are not.  Are you prepared to agree to pay the Bank’s costs of the hearing today?

MR RAYNER:   I do not know how much they would be.  As I have said, I live on $132 a week.  So it becomes meaningless, at the end of the day, if you do not have the money.  If you want to make the order, there is nothing I can do.

HIS HONOUR:   But that is the complaint of the Bank, you see.  They say it is meaningless to you and that they will never get the money and that you run up this cost for them and you have caused them inconvenience, you have caused the Court inconvenience and you have caused lots of other employees – we have a court reporter here, we have the Registry of the Court, we have my associate, we have a recorder at the back of the room, we have whoever is in the court in Perth, and all of that costs hundreds of dollars and you have come along without evidence to support your application.

MR RAYNER:   It has.  There is nothing I can say about it, sir, but, I mean, when the Bank took this loan, granted this mortgage – and the evidence is on the file from the court below – they made it, when they knew – there was something like about an $85 per month deficit between the total monthly income and the cost of the loans.  They have deposed that the payments were made regularly from 1992 to 1998.  They filed a further affidavit saying they were not, complete with bank statements showing that they were not.  One affidavit saying everything was hunky‑dory and another affidavit saying, no, it was not and here are the bank statements to show it.

HIS HONOUR:   Yes, but even if that is so, the Bank lent you money and you must have expected that you would have to pay it.  It is one of those unfortunate things that when you get money, you have to pay it back, at least when it is a bank.

MR RAYNER:   I do not dispute that, but there was an incredible amount of duress and we will say that the entire transaction was a sham.  It was designed for us to fall over.

HIS HONOUR:   But these matters have been debated in the courts below and have not been accepted and the court below had the opportunity of seeing you, whereas the High Court would not see you.  All we would see would be the transcript of the evidence.

MR RAYNER:   Well, I beg to differ, sir.  These matters have not been debated.

HIS HONOUR:   Well, if they have not been debated, that is even worse because you have not debated them.  You would be asking this Court to receive fresh evidence or to deal with the matter ‑ ‑ ‑

MR RAYNER:   No, no.

HIS HONOUR:   ‑ ‑ ‑ or to deal with the matter on a basis different from the way in which you debated the case in the courts below.

MR RAYNER:   In the court below I argued on a sworn affidavit, which is part of the documents you have from Clark Whyte, that the plaintiff manipulated income levels.  They then deposed an affidavit to suggest that the income levels had not been manipulated and then 12 months later they did.  Now, I have tried to argue – I have tried to argue this at the appeal and it was completely ignored.  That is why there is a ground about raising the tenable ground of appeal which was not dealt with.

HIS HONOUR:   Yes.  Well, I will speak to Mr Hawkins again.  Mr Hawkins, I am inclined to grant the applicant a period of a week or thereabouts.  I would do so only because I have a strong sense of distaste for disposing of a matter which affects the property of the applicant and his wife without his having put before the Court the material that he would need to have the issue determined on its merits, but it would have to be on the basis that there is an order that requires him to pay the Bank’s costs and that the relisting of the matter would be performed by the Registry on a day, as far as possible, convenient to yourself next week and at a time convenient to you, if we can arrange that. 

That cannot be fixed now because we have to see what is available to the Federal Court, but it would have to be on the clear understanding that the matter was to proceed next week and that you had prior notice of the evidentiary material that Mr Rayner is going to rely on and that the matter would proceed to finality, whatever is the situation when it comes before the Court next week.  They are the orders that I am inclined to make.  Do you have any other comments or submissions in relation to those orders?

MR HAWKINS:   No, your Honour.

HIS HONOUR:   Yes, very well.  Thank you.  Mr Rayner ‑ ‑ ‑

MR RAYNER:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ I am going to give you a very short adjournment until a date next week.  You will be notified of that date, but you had better make it your business as soon as tomorrow, or even this afternoon, to get copies of the pages of the transcript that you say will support your contentions that you want to put before the Court and you had better do an extra copy for them for Mr Hawkins’ solicitors so that he has that in good time for the relisting of the matter next week and it will have to be on the basis that you understand that whatever happens and whether you have supplied the material or not, the case will be heard to completion when it is relisted next week and that you will be ordered to pay the costs of the adjournment today because today’s hearing is really thrown away because you are not in a position to proceed with your case and the orders will be made against you and your wife because both of you are parties and you have the authority of the Court, at her request, to speak on her behalf.  Do you understand all of that?

MR RAYNER:   Yes, sir, I understand every word and I will get everything moving most expeditiously.  That is not a problem, sir.

HIS HONOUR:   Yes.  Thank you very much.  You can just sit down for a moment.

This Court has before it an application by Mr David Kenneth Rayner and Mrs Susan Joy Rayner (“the applicants”) for the grant of special leave to permit them to appeal against a judgment of the Supreme Court of Western Australia granting judgment to the Australia and New Zealand Banking Group Limited (“the respondent”).  That application will be heard in due course by a panel of this Court. 

In connection with that application, the applicants have filed an application for a stay of the order of the Supreme Court of Western Australia.  I do not pause to consider whether a stay, or an injunction of some sort, is the correct remedy.  The provision of a stay was the subject of separate proceedings in the Supreme Court of Western Australia.  That court (constituted as a Full Court by Wallwork, Murray and Parker JJ) provided a short stay for a period of 28 days against the enforcement of a writ of possession issued on 5 June 2002.  The order so made was made on 19 June 2002.  The running of time would possibly have been interrupted by the intervening midyear vacation of this Court.  I have not examined that question.  The application for the stay from this Court was listed before me today by video link to Perth.  Supposedly, that was done on the basis that today is the last available day for the provision of an order of this Court before expiry of the Supreme Court’s stay.  Again I do not pause to determine whether this is correct.

At the return of the application Mr Rayner appeared.  An affidavit of his wife was read, indicating that she wished him to speak on her behalf.  No objection being raised by the respondent to this course, leave was granted for this purpose.  Mr Rayner, who was unrepresented, advanced such arguments as he could until a serious impediment became apparent.

This impediment was that Mr Rayner did not have, in affidavit or other form, evidentiary material to support his argument for a stay.  I explained to Mr Rayner that this Court could not, in an application for special leave or in an appeal, receive new, fresh or different evidence to supplement the record beyond that which appeared in the transcripts of the proceedings and exhibits of the court below.  Mr Rayner stated that he did not wish to tender new, fresh or different evidence.  He wished only to have before the Court evidence from the proceedings in the Supreme Court of Western Australia.  He claimed that such evidence would sustain his argument in support of a stay.

Mr Rayner did not have that evidence.  He said that he did not have it because of the costs of procuring it.  He asked for an adjournment.  The respondent opposed the adjournment.  I appreciate fully the reasons for this opposition.  I also take into account that any order for the payment of costs may be difficult for the respondent to recover.  However, having regard to the fact that Mr Rayner and his wife are not legally represented and the fact that the decision is extremely important for them, I am prepared to provide a short adjournment.  I am not convinced that the interests of justice require that the short adjournment sought be refused.  That adjournment will be provided on the footing that the applicants are ordered to pay the respondent’s costs thrown away by the adjournment of the proceedings today and that they understand that the matter must proceed to conclusion on the next hearing.  Furthermore, I will not provide any stay or other order.  Mr and Mrs Rayner will have to take their chances that nothing happens before the application is again returned before this Court.

The orders that I make are:

1.Adjourn the hearing of this application to a date to be fixed and notified by the Registrar to the parties, such date so far as possible to be convenient to the representatives of the respondent and the applicants;

2.The costs of today be paid to the respondent by the applicants;

3.The additional evidence or matters of record relied on in support of the stay application be filed and served by the applicants on the respondent’s solicitors by 4.00 pm on Monday next, 26 August 2002 (WST);

4.Any evidence or matters of record in reply by the respondent be filed and served by or before Wednesday next, 28 August 2002 at 4.00 pm (WST); and

5.Certify for the appearance of counsel in chambers.

Are there any other orders that you seek, Mr Hawkins?

MR HAWKINS:   No, thank you, your Honour.

HIS HONOUR:   Is there anything else that you ask me to do, Mr Rayner?

MR RAYNER:   No, thank you, sir.

HIS HONOUR:   Very well.  I hope you understand that there will be no further adjournments and the matter will proceed to conclusion next week.  It may come back before me or it may come back before another Judge.  That will be determined by the Court’s arrangements.  The Court will now adjourn.

AT 4.40 PM THE MATTER WAS ADJOURNED