Romanos & Anor v Pentagold Investments Pty Ltd & Anor

[2003] HCATrans 606

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M179 of 2002

B e t w e e n -

MALCOLM JAMES McFARLANE

Applicant

and

NATIONAL AUSTRALIA BANK LIMITED

Respondent

Office of the Registry
  Melbourne  No M180 of 2002

B e t w e e n -

MALCOLM JAMES McFARLANE

First Applicant

JILL ELIZABETH McFARLANE

Second Applicant

and

NATIONAL AUSTRALIA BANK LIMITED

Respondent

Applications for a stay

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 25 FEBRUARY 2003, AT 9.35 AM

Copyright in the High Court of Australia

__________________

MR A.T. SCHLICHT:   I appear for the National Australia Bank, your Honour.  (instructed by Russell Kennedy)

HIS HONOUR:   Do you know what the position is with Mr and Mrs McFarlane, Mr Schlicht?

MR SCHLICHT:   No, I do not, your Honour, but in previous court appearances they have a tendency to be late but they on most occasions attend.

HIS HONOUR:   Yes.  I think that the best thing to do would be to simply adjourn until they come or 10 o’clock, whichever is the first.  If they arrive before 10 o’clock, we will resume then; otherwise, I will come back at 10 o’clock, Mr Schlicht.

MR SCHLICHT:   If your Honour pleases.

AT 9.36 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.45 AM:

HIS HONOUR:   Mr McFarlane, you appear for yourself, is that right?

MR M.J. McFARLANE:   Well, first of all, I would just like to apologise for being late, your Honour.

HIS HONOUR:   These things happen, Mr McFarlane.

MR McFARLANE:   Yes.  We had to come in from Ballarat, and traffic and everything.  Yes, what I would like to request is whether Mr Moran can speak on my behalf.

HIS HONOUR:   Yes.  Now, just before we get to that.  Your wife is present in Court, I see.

MR McFARLANE:   That is correct.

HIS HONOUR:   She is happy to have Mr Moran speak on her behalf, is she?  Is that right, Mrs McFarlane?

MRS J.E. McFARLANE:   Yes, your Honour.

HIS HONOUR:   Yes, thank you.  Now, again, before we get to Mr Moran, Mr McFarlane, the parties were told by the Deputy Registrar that I hold a small parcel of shares in National Australia Bank.  I do not see any difficulty arising out of that.  I understand that the parties have been told that and that they have no objection to my sitting.  Is that right?

MR McFARLANE:   That is correct, your Honour.

HIS HONOUR:   Yes, thank you.  Now, you want Mr Moran to speak on your behalf, do you?

MR McFARLANE:   If I could, your Honour.

HIS HONOUR:   Yes.

MR McFARLANE:   Would I stay here at the table with him?

HIS HONOUR:   Yes, I think that is better.  If you would be good enough, Mr Moran, to come forward.  Mr Moran, as I understand it, you are offering

assistance to Mr and Mrs McFarlane in the capacity as a friend.  Is that right?

MR J. MORAN:   I am, your Honour.

HIS HONOUR:   Yes.

MR MORAN:   I have helped them with their paperwork for almost nine years.

HIS HONOUR:   Yes, thank you, Mr Moran.  Now, it is the application by the McFarlanes, Mr Moran.  What is there that you want to say in support of the application?

MR MORAN:   Firstly, your Honour, I actually did not prepare anything as if I was speaking for Mal and Jill today, but the basic thrust of the argument which probably will not take very long is the fact that in the trial of the matter – there is an application for leave to appeal to the High Court and that…..a trial that was held before Justice Byrne on 8 to 11 April of last year.  At that trial issues of constitutional questions were raised and not dealt with by Justice Byrne and every step of the way – there was one other related matter which is now in the High Court as M181, which we are not dealing with here today, but it deals with the same subject matter, the same parties, inasmuch as it was an action that the McFarlanes had taken against various other people concerning the Bank case – we will call it the Bank case.

Every step along the way of appealing masters’ orders got through to Justice Beach in the Practice Court and in these matters here, which is now M179 and M180, through to the Court of Appeal, the questions of constitutional issues have been filed on each occasion – in each of those cases and they have been ignored and today – well, just a week or so back Mrs McFarlane – and it was only over a parking ticket in the Magistrates Court – I believe it was 4 February – was granted leave by a Deputy Chief Magistrate to make a section 40 application to the High Court over matters of jurisdiction or constitutional issues.

He gave Mrs McFarlane two weeks, until 18 February, in which section 78B notices were sent to – and there is an affidavit of service – on sending section 78B notices to all the Attorneys‑General and rather than almost, you know, abuse the process of the Court and put another separate application in, we had the affidavit of service and a copy of the notice of constitutional issue with us today.  I am not sure whether the other side would have seen – but I will pass a copy of the ‑ ‑ ‑

HIS HONOUR:   Perhaps if you can show that to Mr Schlicht, yes.

MR MORAN:   And if you wished ‑ ‑ ‑

HIS HONOUR:   Yes.

MR MORAN:   The questions that have been formulated are really dealing with the – basically around the 1975 Constitution Act of Victoria go to a lot of areas that have been very relevant in these matters between the National Australia Bank and the McFarlane family.

HIS HONOUR:   Now, I have seen reference in the papers that I have read to the 1975 Constitution Act.  Do you feel able to state to me what the essence of the point is that it is sought to make about that Act?

MR MORAN:   There certainly will be a lot more material brought forward at an application down the track under section 40 but basically it resolves around the – and what was presented to the Chief Magistrate was that the commission of the then Governor, Sir Henry Winneke, the letters patent under which his commission gave him powers and the instructions under those letters patent of 29 October 1900, which gives the Governors their power, and in those instructions there were certain issues in relation to Bills that the Governor was not to assent to in the name of the monarch.

Then in 1975 when the parliamentary debate was happening on the Constitution Act 1975, which was originally termed 8750 of 1975, the Governor had notified both Houses of Parliament during the debate that he had reserved the Bill for the signification of Her Majesty thereon and at the end – that was in, I think, about May 1975, thereabouts – and I do have copies of Hansard of that period where in each instance the section of Hansard that related to…..Governor to reserve ‑ ‑ ‑

HIS HONOUR:   Yes.

MR MORAN:   In, I think, October of that year the Governor – and I also have the Hansards where the Governor states that, “I have caused the Bill” - that he had caused the Bill to lay before the Queen in Council and had received the Royal Assent.  Our argument of course is because of numerous other flaws in that particular Bill inasmuch as was the Bill a consolidating Bill from the Constitution Amendment Act 1958 and various other issues, but they also incorporated amendments to the Supreme Court Act and the Solicitor‑General Act of the Victorian Parliament which in itself on the surface indicates that, although we are supposed to have the separation of powers, it appears that the Supreme Court was brought in under the control of the Parliament by the amendments that were made to it.

Now, the other very important part of it was that sections of that 8750 which became the Constitution Act 1975 related to the way that the Parliament was able to amend their own Constitution and, generally speaking, or on its surface, that is something like along the lines of: provided that a majority of both Houses sitting in the Parliament agree, that can be amended. Although section 106 of our Commonwealth Constitution states that the States are allowed to make their rules and regulations, provided they are made within the State’s own Constitution, that flies in the face of section 109 of the Commonwealth Constitution which says that the States cannot make legislation that is – well, my words – contrary to the Commonwealth Constitution.

HIS HONOUR:   No, 109 provides for inconsistency of laws. Section 106 provides that the:

The Constitution of each State . . . shall . . . continue as at the establishment of the Commonwealth or . . . may be, until altered in accordance with the Constitution of the State.

MR MORAN:   Yes, but that is contrary to 109:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Now, the Commonwealth Constitution clearly states that any amendments to our Commonwealth Constitution cannot happen unless at a referendum. So Victoria did not have a referendum in 1975, therefore it became inconsistent with – and when they changed the Constitution it became inconsistent with the Commonwealth Constitution from that point of view.

HIS HONOUR:   Assume for the purposes of debate that there were some substance in that argument.  What would follow from it for the purposes of the litigation between the National Australia Bank and Mr and Mrs McFarlane?

MR MORAN:   To really broadly paraphrase, if the High Court was to rule that that 1975 Constitution Act was unlawful, that would mean that any law made since 1975 by a Victorian Parliament would be void ab initio and the ‑ ‑ ‑

HIS HONOUR:   It by no means follows that that is the conclusion, but let us for the purposes of immediate debate assume that that were to be so.  What is the consequence of that for the purposes of the litigation?  Assume everything after 1975 is invalid, which is a very large assumption.

MR MORAN:   Of course.  I understand.  That is why I said it was very broadly paraphrasing.

HIS HONOUR:   Yes.

MR MORAN:   And, of course, assuming that it was declared invalid, there is enormous potential consequences too.  I could imagine the media jumping up and down, “They’re going to let all the murderers out of gaol”, but that does not necessarily follow either because there is an orderly way of fixing the problem if that was to be the way that the High Court would rule.

HIS HONOUR:   But assume all post‑1975 Victorian legislation is, as you say is arguably the case, invalid.  What consequence follows for this litigation?

MR MORAN:   It would make – and, in particular, the way that they amended the Supreme Court Act, which brought it under the power of the Victorian Parliament, it would make the Supreme Court have no jurisdiction to have heard the trial, it would make the Titles Office not able to transfer titles, it would make the Sheriffs Office not able to carry out their duties ‑ ‑ ‑

HIS HONOUR:   Why?  Why would it not?  Even if you carry this argument, which seems to me to have in it several very large steps, even if you carry them to their logical conclusion, is not the consequence that matters are to be regulated according to the statute law of Victoria as it stood before 1975?  If that is so, what is deficient in what has happened?

MR MORAN: That would then take us back to the Constitution that Victoria operated under until 1975, which was the 1855 Imperial statute, which became our Constitution.

HIS HONOUR:   Yes, and the Supreme Court for Victoria would remain in existence, the commissions would still be good.  What is the consequence?  You see, it seems to me the argument, for a start, carries within it a number of, at the least, contestable steps, but, even if you take all of the steps, at the moment I do not see where it leads you.

MR MORAN:   Could I just say one other aspect before I get on to that, your Honour?

HIS HONOUR:   Yes.

MR MORAN: We really have to go back to the 1854 Constitution Bill that the ‑ ‑ ‑

HIS HONOUR:   No, we go back to 106. Section 106 of the Constitution is for the moment the root because it provides that the Constitution of each State:

shall . . . continue as at the establishment of the Commonwealth . . . until altered in accordance with the Constitution of the State.

So 106 is, I would have thought, an indisputable root of title.

MR MORAN:   Yes, that is true and as far as – because we are here in the High Court, that is the appropriate way to go.

HIS HONOUR:   Yes.

MR MORAN: But what they did in 1975 was include clauses back in that the Imperial Parliament had taken out in 1855 as far as the amendments to their Constitution was concerned.

Getting back to where we were before – and obviously the Bank has claimed various things under the Transfer of Land Act and as far as mortgages go and that type of thing and they were obviously made before 1975 because they are 1958.  So that part is probably not disputed at this stage, those aspects.  I would think that if the 1975 Constitution Act is declared unlawful, at least we would go back to relying on 106 and the previous Constitution that the State operated under which is still in full force, but I did not propose to go down that alley today because that would be argued at the section 40 application if it got a hearing.

It was the fact that because the Supreme Court was operating under the 1975, we would have to start afresh and the Bank would have to do its actions again under the then existing Constitution which is still current unless – and we are not told – that we are operating under admiralty law. That is a whole new set of arguments because admiralty law is not supposed to operate on land. That is not what we are here for today. I would have thought that they have done everything – the Bank, in taking action against the McFarlanes has relied on the 1975 Constitution Act.

So, if it is declared that “We’re not going to operate under the 1975 Constitution Act; we’re going to go back and operate under the 1855 one”, I would have thought the logical way then was for the Bank to start afresh under the 1855 Constitution Act or under some federal law, which is not what they have in their statements of claim because “duly incorporated in the State of Victoria”, blah, blah, blah.

Under the Reconstruction Act of 1893 the Bank will say, “We have a line going back right through to 1859 when the National Bank of Australasia was the statute of the State of Victoria happened at that stage”.  But surely, because they were operating under the 1975 Constitution of the State and it was declared that way, they would have to, in my submission, go back and start the whole process again.  That way, because of the unbelievable – my words – happenings during the trial and since the trial – because the application that the McFarlanes have made to the High Court in M179 and M180 is over a decision of the Court of Appeal which – all it did was refuse leave to appeal out of time, which our argument was that even though we were open with them, they so‑called manufactured that out of time.

The Bank obviously brought up certain issues that were held at the trial of the matter but the McFarlanes were not allowed to have anybody speak for them in the Court of Appeal.  These folks are farmers and they would run circles around any of the rest of us as far as how to prepare the ground and grow a crop and that specialised field.  They are not specialists in the area of arguing cases in court.  The Bank has been very, very fortunate in being able to take full advantage of that situation.  Therefore, the McFarlanes’ case has probably never been properly expressed to the Court.

At the moment we might say, “So what?  We won’t get a stay here today”.  All the goods will be turfed out on the road and the property will be sold and whatever else the Bank might have in mind.  We could have comfort in that because the Bank has already – because of criminal charges arising out of the trial and since, the Bank has gone – they went initially to a judge of the Practice Court of Victoria ‑ ‑ ‑

HIS HONOUR:   Yes, I have read those papers.

MR MORAN:   - - - and had an injunction and they gave an undertaking that they would pay any damages arising out of the injunction.  That all brings up another interesting point.  I was quite often not allowed to speak on behalf of the McFarlanes because I was not qualified to stand at the Bar table and yet the judge who gave that injunction initially is written up in the paper as not having a law degree himself.

We would say all right, we will not get a stay, the farm will be sold.  We can claim damages later on if the High Court challenge is successful, but that is not really the point of having a financial compensation over the loss of their heritage and so forth.

HIS HONOUR:   Mr Moran, I have done enough of this work in this Court and in the Supreme Court to be deeply conscious of the fact that these are

real live human people who have real live human issues.  I am well aware of that.  You need not develop that.

MR MORAN:   Thank you, your Honour.  The McFarlanes would certainly much prefer, until these matters are sorted out, Mrs McFarlane’s section 40 application or, indeed, the application for leave to appeal in these matters before the High Court, to at least have the opportunity of putting all the facts to somebody with proper jurisdiction and not have to worry about whether the sheriff is going to knock them up out of bed one morning and turf them in the street.

They would much prefer, at least until one or both of those events occurs, the section 40 or the hearing of the application for special leave, to maintain the property that is subject to the application.  It is not going to be disadvantageous to the Bank, especially when they have given the Court an undertaking to pay any damages as a result of the injunction applications.  I do not think there is much more I can emphasise as far as that goes, your Honour.

HIS HONOUR:   Thank you, Mr Moran.  Yes, Mr Schlicht.

MR SCHLICHT:   Your Honour, it is incumbent upon the applicants to persuade the Court that the stay should be granted…..The applicants have not discharged that onus.  It is incorrect, your Honour, to say, as asserted by Mr Moran, that the questions of the constitutional issues have not been considered by other courts.  They were considered both by the Court of Appeal on 20 September and the Court of Appeal on 16 December.

HIS HONOUR:   Where do I find that in their judgments?

MR SCHLICHT:   Exhibit MMcF7 to the affidavit of Mr McFarlane, which is a judgment of Justices Phillips and Buchanan.  At page 3 of that judgment, your Honour, which was given by Justice Phillips, at paragraph 10 it is stated:

As for the stay granted by Byrne, J in proceeding No 6451 and continued until 20 September 2002, I see no reason why a further stay should now be granted in that proceeding simply because an application has been filed for special leave to appeal in the High Court.  I do not say that in an appropriate case such a stay might not be granted because of such an application:  plainly a stay can be granted in a proper case.  But, in this instance, I share the view of their Honours, expressed on 20 September 2002, that the appeals to this Court had no merit whatsoever.  The absence of merit is only confirmed, if I may say so, by the content of the submissions which we were told (by the affidavit of Mr Main which was recently filed in answer) have been filed in the High Court.

So the Court of Appeal, your Honour, had the submissions and arguments of the applicants in respect of these matters, 179 and 180, and considered them and only confirmed their view that this was unmeritorious.

In the reasons for judgment of Justices Ormiston and Vincent of 20 September, which is exhibit MDM1, Justice Vincent considered these matters at paragraph 17 on page 4:

Little needs to be said with respect to the various and numerous grounds advanced in support of these two applications.

They were applications for leave out of time.

No issue of substance whatever has been raised, either with respect to the conduct of the proceeding before his Honour or arising out of the findings of fact made by him.  I do not consider that there is any need to deal seriatim with the various assertions that have been advanced by the applicants.  They consist essentially of misconceived propositions of law and allegations of fact in respect of which there is no scintilla of support.

Again, on page 5 paragraph 20 his Honour goes on to say:

There is nothing before this Court which gives rise to any sensible suggestion that there is or could be any substance in any of these claims or that his Honour failed to direct attention to any relevant principle of law or misapplied any relevant principle of law.

Your Honour, it appears that the argument is that by reason of the invalidity of the 1975 Constitution the Supreme Court is not an entity, to abuse a phrase. That, in my submission, is not an argument which has any substance or prospects of success. For those reasons, it is the submission of the respondent that the applicants have failed to discharge the onus required.

HIS HONOUR:   Am I right in understanding that one of the two jointly owned properties has now been sold and the sale is complete?

MR SCHLICHT:   Yes, your Honour.  That is the property that is the subject of M180, which is colloquially known as the Angle Road property.

HIS HONOUR:   The other two parcels though ‑ ‑ ‑

MR SCHLICHT:   Form the Mystic Park property.

HIS HONOUR:   And those have not been sold?

MR SCHLICHT:   No, your Honour.

HIS HONOUR:   Has the Bank taken possession under the orders that were made by Justice Byrne?

MR SCHLICHT:   Not at this moment in time, no, your Honour.

HIS HONOUR:   Is there presently any order of any court precluding the Bank from that step?

MR SCHLICHT:   No, your Honour.

HIS HONOUR:   Mr Moran, is there anything you wish to say on the McFarlanes’ behalf in answer?

MR MORAN:   There was something I thought of.  When Mr Schlicht mentioned about the Court of Appeal dealing with the constitutional issues, if what we say is true, the Court of Appeal does not have the jurisdiction to hear those constitutional issues anyway.  It is going to have to come to the High Court for a determination.  They are hearing their own matter, in other words.  I think that is about all I need to say.

HIS HONOUR:   Mr McFarlane, Mr Moran has spoken on your behalf.  I just want to make sure that there is nothing you yourself or your wife would wish to add.  Is there anything you would wish to add?

MR McFARLANE:   No, I think it has been covered fairly well, your Honour.

HIS HONOUR:   Yes, thank you, Mr McFarlane.

On 11 April 2002 Justice Byrne of the Supreme Court of Victoria gave judgment in two actions brought by National Australia Bank Limited, in the one case against Malcolm James McFarlane and in the other against Malcolm James McFarlane and Jill Elizabeth McFarlane, seeking possession of land.  In the first of those proceedings possession was sought of two parcels of land owned by Mr and Mrs McFarlane.  In the second action possession was sought of another parcel of land owned by Mr McFarlane alone.  National Australia Bank contended that they were entitled to possession of the land, the McFarlanes having failed to meet obligations under mortgages given to the Bank.  It is not necessary to trace the whole of the interlocutory proceedings that followed Justice Byrne’s judgment that the Bank recover possession of the three parcel of land.

In September 2002 the Court of Appeal of Victoria dismissed applications brought by the McFarlanes seeking, among other things, leave to appeal out of time against the judgments which Justice Byrne had pronounced in the Bank’s favour.  Subsequently, on 18 October 2002 the McFarlanes filed applications seeking special leave to appeal to this Court against the orders of the Court of Appeal refusing them leave to appeal out of time.

There having been two actions in the Supreme Court of Victoria between different parties, there are two applications for special leave in this Court, one by Mr McFarlane, the other by Mr and Mrs McFarlane.  Since Justice Byrne gave judgment to the Bank, one of the two parcels of land owned by Mr and Mrs McFarlane has been sold and the Bank now retains no interest in it.  The Bank has, so I am informed, not yet taken possession of either of the other two parcels of land, although, as I understand it, there is no order of a court which would prevent them from doing so.

The McFarlanes now seek a stay of execution of the judgment of Justice Byrne pending the hearing and determination of their applications for special leave to appeal.  The power of this Court to grant orders staying execution of judgments pending applications for special leave to appeal is undoubted.  It is part of the inherent jurisdiction of this Court, finding its most frequent use in order to preserve the subject matter of litigation.  It is a jurisdiction which can be invoked if to grant a stay is necessary to prevent the exercise of rights of appeal being rendered futile or their exercise in circumstances where restoration of the status quo cannot be achieved.  See, for example, Patrick Stevedore Operations No 2 Pty Limited v Maritime Union of Australia [No 2] (1998) 72 ALJR 869 at 870, paragraphs [2] and [3].

The principles governing the making of orders for stay are well established.  In that regard reference is often made to the judgment of Justice Brennan in Jennings Construction Limited v Burgundy Royale Investments Pty Limited [No 1] (1986) 161 CLR 681. There his Honour pointed out that:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion.  In each case when the Court is satisfied a stay is required to preserve the subject‑matter of the litigation, it is relevant to consider:  first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

In the present matters the applicants applied to the Court of Appeal of Victoria for orders staying the judgments of Justice Byrne.  Those applications failed in that court but the second of the four considerations to which Justice Brennan referred in the Burgundy Royale Case is met.

The applicants seek special leave to appeal in each case on a number of grounds.  Taking what is said in the matter in which Mr McFarlane is applicant, matter M179 of 2002, as sufficiently identifying the grounds asserted in both applications, they are said to be as follows:

[a]  The Appeal Judges were wrong in law when they failed to uphold section 24 of the Statute, 9 George 4, Chapter 83

[b]  The Appeal Judges were wrong in law when they held that pursuant to section 51, placitum xii and or xiii, of the Statute 63 & 64 Victoria, Chapter 12, the respondent bank “lends” its credit by way of “fractional reserve banking”.

[c]  The Appeal Judges erred when they failed to determine if the Respondent banks incorporation was constitutionally lawful pursuant to section 51, placitum xiii of the Statute 63 & 64 Victoria, Chapter 12.

[d]  The Appeal Judges erred when they failed to see the significance of potential prejudice when Justice Byrne refused to stand down from hearing the matter, although he admitted that he had Loan Accounts with the Respondent bank.

[e]  The Appeal Judges erred when they failed to realise the importance of the fact that Justice Byrne failed to disclose any directorships.

[f]  The Appeal Judges were wrong in law when they failed to adjudge the complete meaning of the Currency Act 1965 [Cth] and the Reserve Bank Act 1959 [Cth].

[g]  The Appeal Judges were wrong in law when they failed to adjudicate according to the rule of law.

[h]  The Appeal Judges were wrong in law when they held that, in economic terms, credit creation was lawful.

[i]  The Appeal Judges were wrong in law when they failed to disclose that the trial of the matter was conducted as an action “in rem”.

In support of the application for stay, Mr Moran, whom the McFarlanes wished to speak on their behalf, put the matter rather differently from the way in which the grounds of the application for special leave to appeal would suggest that argument might be advanced in support of the applications for leave.  He suggested that the principal argument which would be advanced on behalf of the McFarlanes focused upon the validity of the Constitution Act 1975 (Vic) and the steps that were taken in connection with the reservation of that Act for royal assent.

As I understood it, the essence of the contention was that the Constitution Act 1975 contained provisions which were in some way inconsistent with the requirements of section 128 of the Commonwealth Constitution dealing with the alteration of that Constitution. It followed, so the argument proceeded, that the Constitution Act 1975 was invalid for want of putting the changes made by that Act to referendum in accordance with the procedures described in section 128 of the Commonwealth Constitution and that in consequence all Acts of the Victorian Parliament enacted after 1975 were invalid.

It was submitted that the proceedings culminating in the judgments given by Justice Byrne and the subsequent dispositions by the Court of Appeal were proceedings conducted under or in accordance with legislation enacted after 1975, that those proceedings and those dispositions were therefore of no effect and that the Bank, were it to wish to enforce its rights, should be compelled to start proceedings again in accordance with legislation that existed before 1975.

The argument which I have described contains a number of steps which at their very best might be described as highly contestable.  There is, so far as the argument was developed today, no apparent validity in the arguments advanced attacking the Victorian Constitution Act 1975 or of the various steps that have been taken in the present proceedings. The arguments that have been advanced today appear to pay too little regard to the provisions of section 106 of the Commonwealth Constitution that:

The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth . . . until altered in accordance with the Constitution of the State.

Insofar as the Constitution Act 1975 (Vic) altered the Constitution of the State of Victoria, it was an Act which, as its preamble recorded, was an Act of a kind for which provision was made by section 60 of the Constitution Act 1854, by which section the legislature of Victoria was given:

full power and authority from time to time by any Act or Acts to repeal alter or vary all or any of the provisions of this Act and to substitute others in lieu thereof –

All this being so, I am of the view that there is no substantial prospect that either application for special leave to appeal will succeed.  That being so, it would, in my view, be wrong now to grant a stay of the orders which have been made in the courts below.  Although it is unnecessary to consider questions of balance of convenience, I would assume in favour of the applicants for stay that the balance of convenience would wholly favour them.  That notwithstanding, the prospects that special leave to appeal would be granted are so slight that, in my opinion, the applications for stay should be dismissed.

Accordingly, the order is:  in each matter application dismissed.

Yes, Mr Schlicht.

MR SCHLICHT:   I would seek costs, your Honour.

HIS HONOUR:   Mr Moran, is there any reason why costs should not go?

MR MORAN:   It is no good arguing.  Your Honour, could I just correct a typo right at the start?

HIS HONOUR:   Yes.

MR MORAN:   The two parcels of land are in Mr McFarlane’s name alone.  The single parcel that has been sold was in joint names.

HIS HONOUR:   Yes, thank you.

In each matter the application will be dismissed with costs and I certify for the attendance of counsel.

I will adjourn.

AT 10.38 AM THE MATTERS WERE CONCLUDED