Sali v SPC Limited

[1993] HCATrans 32

...

.

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M124 of 1992

B e t w e e n -

HASET SAL!

Applicant

and

SPC LIMITED and BLAKE DAWSON

WALDRON (a firm)

Respondents

Application for a stay of

proceedings

BRENNAN J

(In Chambers)

Sali 26/2/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 26 FEBRUARY 1993, AT 9.31 AM

Copyright in the High Court of Australia

MR R.F. THOMAS: I appear for the applicant, if the Court

pleases. (instructed by McLindins)

MR P.J. RIORDON: If the Court pleases, I appear on behalf

of the first respondent. (instructed by Phillips

Fox)

MR P.G. CAWTHORN: If the Court pleases, I appear for the

second respondent. (instructed by Minter Ellison

Morris Fletcher)

MR RIORDON:  Your Honour, could I mention a matter firstly.

There is an affidavit that I would be seeking to

file. I understand that my learned friends have no

objection to the filing of the affidavit. It

simply seeks to put on to your file, Your Honour,

an affidavit which had been before the Full Court

at the time of the making of the application for

the adjournment. The purpose for it being filed is

simply that, in one respect, it may assist

Your Honour in making some sense out of a matter to

which certainly I intend to refer Your Honour in

the judgment of His Honour Mr Justice Marks.

HIS HONOUR:  Yes. You have no objection?

MR THOMAS:	No objection, Your Honour.
HIS HONOUR:	I will give leave to file and read an affidavit

of Egon Fice. Yes, Mr Thomas.

MR THOMAS:  If the Court pleases. Your Honour, I move by

way of summons and the affidavits in support and I

seek leave to read those affidavits of Mr McLindin,

sworn 19 February 1993 and the affidavit of

Dr Anthony James Costello, sworn 18 February, and

the affidavit of Dr Earnest Brighthope, sworn

21 February 1993, and the affidavit of the

applicant, Haset Sali, sworn 19 February 1993.

Your Honour, this is an application for a stay of proceedings, and I handed up shortly before

Your Honour came on the bench a copy of my

submissions, which I think Your Honour may have.

HIS HONOUR:  Would you like me to read those first,

Mr Thomas?

MR THOMAS: That might be appropriate, Your Honour.

HIS HONOUR:	Yes, Mr Thomas.
MR THOMAS:	Your Honour, there is one matter which may also

assist Your Honour, before I address those

submissions to you. My friend has handed up

submissions also, Your Honour. At the back of

Sali 2 26/2/93

those submissions Your Honour will see a chronology

and Your Honour will see that there are three dates

amended at the bottom of that chronology and with

that addition, the submission is that that

chronology does reflect the state of play to the

day.

HIS HONOUR:  What precisely is the application that you are

making?

MR THOMAS:  The application, Your Honour, is a stay of

proceedings which are currently before the Federal

Court to be heard on Monday next, which is

1 March, which will be the hearing of a creditor's

petition directed to the applicant.

HIS HONOUR:	What jurisdiction does this Court have over those proceedings?
MR THOMAS:	The jurisdiction would come, in my submission, through the second route. It is an application to
this Court to stay all proceedings by the respondent defendants against the applicant, seeking to enforce orders or judgments given in
their favour to date. If I can perhaps take
Your Honour to the chronology and perhaps I can
explain it this way.
HIS HONOUR:	Perhaps you could take me to the jurisdiction

first.

MR THOMAS: 

Yes, Your Honour.

HIS HONOUR: 

Is it an application in the original

jurisdiction of this Court or the appellate
jurisdiction?

MR THOMAS: Well, Your Honour, it is the original

jurisdiction of this Court in so far as there is no

appeal currently before the Court. There is a

special leave application only before the Court to

be heard on 12 March of this year.	The way the
matter is put, Your Honour, is that the applicant

has exhausted all remedies at the lower

jurisdictions for seeking a stay of proceedings.

An application was made to the Full Victorian

Supreme Court on 5 February to stay the judgment of

that court and to stay enforcement proceedings.

That application was dismissed.

HIS HONOUR:  So now is there any appeal pending from the

judgment of the Supreme Court of Victoria in the

action?

MR THOMAS:  No, Your Honour. There is a special leave

application to the High Court in relation to that

matter only.

Sali	26/2/93
HIS HONOUR: That is in relation to the adjournment?
MR THOMAS:	Yes, correct, Your Honour; the refusal to grant the adjournment.
HIS HONOUR:	So if you succeeded in obtaining special leave

and succeeded in the appeal, the order refusing the

adjournment would be quashed.

MR THOMAS: That is correct, Your Honour.

HIS HONOUR:	Where would that leave you?
MR THOMAS:	The appeal would then be on foot, and if I take

Your Honour to the - does Your Honour have before

him the special leave application booklet?

HIS HONOUR:  No, I do not.

MR THOMAS:  That is my error, Your Honour. I did inquire

yesterday of the Registry and I understood that you

did. I have a copy which may assist Your Honour. If I could take Your Honour to No 5, page 62, that

is the application for special leave, and there is

a draft notice of appeal which, for the moment, I

have lost, Your Honour.

HIS HONOUR:  I think it is at page 101.

MR THOMAS:  Yes, Your Honour. Your Honour will see that the

orders sought in that draft notice of appeal are
that the Full Court of the Supreme Court of

Victoria re-hear the matter or, alternatively, the

High Court hear that matter. That is the orders

that are sought. So that if the special leave

application were successful, then the matter would
either be remitted to the Victorian Supreme Court

for hearing, or be heard, if that order was

accepted, by this Court.

HIS HONOUR:  Yes, I see. Now are you seeking a stay in

the Full Court, the appeal in which was dismissed	respect of the judgment which was under appeal to
by the Full Court?

MR THOMAS: That is correct, Your Honour.

HIS HONOUR: 

I can understand that that is getting close to

jurisdiction but I do not understand how the
proceedings in the Federal Court are here at all.

MR THOMAS: 

Your Honour, the summons in this matter seeks

that order. I anticipate that there is some

difficulty about that except through the route that

if the Victorian Supreme Court judgment is stayed,

then effectively that will impinge upon the Federal

Court on Monday in relation to that proceedings.

Sali 4 26/2/93

But I do anticipate what Your Honour has put to me,

that that part of the application would have some

difficulty.

HIS HONOUR:  Has it got any difficulty that you wish to

overcome?

MR THOMAS:	The way I would put it, Your Honour, is that the inherent jurisdiction of this Court to remedy
matters of injustice and procedural unfairness is
sufficient to provide for this Court making an
order which is in the terms of a stay upon
enforcement proceedings per se and in that way
effectively preventing, for the period of the stay
only, any enforcement proceedings by the respondent
defendants because, unless the order was couched in
that way, the result would be that an order of this
Court staying enforcement of the judgment, as it
were, but permitting i~ some way the petition to
proceed, if that was possible, would of course
undermine that order of the Court and make it
nugatory.
HIS HONOUR:	Mr Thomas, I can only say that as at present

advised, I do not see that this Court has any

jurisdiction of that kind. If you have any further

submissions to make, please make them, but for my

part at the moment it seems to me that this Court

does not have any jurisdiction to stay proceedings

which are pending in another court.

MR THOMAS: In the Federal Court?

HIS HONOUR: In the Federal Court.

MR THOMAS:  Your Honour, I understand the difficulty that

Your Honour puts to me and -

HIS HONOUR:  Your remedy, I would have thought, is you get a

stay from this Court in relation to the judgment

which you seek to bring under appeal, is to seek an

adjournment of the proceedings in the Federal

Court.

MR THOMAS: That is correct, Your Honour. I would

anticipate that that is what could or ought to

follow if the Victorian judgment of a stay is ordered in relation to that. And that is the

primary ground that I must address Your Honour on
because that is the crucial issue before this

Court.

HIS HONOUR:  As I say, unless you have something further to

add, I would not be prepared to consider any

application for a stay in respect of the Federal

Court proceedings.

Sali	26/2/93
MR THOMAS:	No, there is nothing further that I wish to put

to you on that point, Your Honour. I would

anticipate, and I would have anticipated that the

procedure Your Honour has outlined would be

followed and would be the appropriate way to

proceed in relation to that.

It is the primary ground that I seek to

address Your Honour on in relation to the stay of

that Victorian judgment. If I can take Your Honour

to that chronology for just one moment, the

situation is that the special leave application is

schedu1ed for hearing in Melbourne on 12 March,

which is some 15 days away. Putting aside for one

moment, if I may, the question of whether there are

substantial chances of success with that

application - I will come back to that point, if I

might, in a moment, Your Honour - in accordance

with the test in the Burgundy Royale case,

Your Honour, I draw Your Honour's attention to that

case, Jennings Construction Limited v Burgundy

Royale Investments Pty Ltd (No.2), (1988)

81 ALR 609, and the appropriate passage is to be

found, Your Honour, at page 267 at point 355.

HIS HONOUR:  It is always helpful in this Court to have a

Commonwealth Law Reports reference.	However, I
have the photocopy of 69 ALR.

MR THOMAS:  I am sorry, Your Honour. I am indebted to my

learned friend. I will quickly turn up that

passage for Your Honour.

HIS HONOUR:  Do not worry about it. I have the photocopy of

the ALR so you can use that.

MR THOMAS:  I apologize for that, Your Honour. Time, but

that is no excuse.

In exercising the extraordinary -

and this is Your Honour -

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 -

and we say that quite clearly here if a stay is not

ordered, then the effect in this case must be that

the enforcement proceedings will proceed and, in

particular, the hearing of the creditor's petition

must automatically follow and that, in that case,

the applicant will be forced to sell his assets,

and I will refer Your Honour to affidavits in a

moment to that effect

Sali 6 26/2/93

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.

Your Honour, if I come back to substantial

prospects point in a moment, the submission is that in relation to the second point, the applicant here

has taken all steps that are necessary to protect

his position and the final act in that respect was

on 5 February 1993 when the Full Victorian Supreme

Court refused a stay.

HIS HONOUR:  Now, what was the basis on which that refusal

was made? Is there any transcript of the

proceedings, any judgment given?

MR THOMAS:  I unfortunately do not have the benefit of a

transcript. I believe my friend has.

MR RIORDON:  I have a copy I can make available to

Your Honour.

HIS HONOUR:  Then I would like to see it because it seems to

me, Mr Thomas, that if the application which you

are making here today has already been made to the

Full Court in Victoria, that court being more

familiar with the matter than this Court, it would

be quite inappropriate for me to consider your
application without knowing the basis on which the

Full Court proceeded.

MR THOMAS:  I accept that entirely, Your Honour. It was

certainly not meant in any disrespectful way not to

have it before Your Honour.

HIS HONOUR:  Yes.

MR THOMAS:  Your Honour, from reading the judgment of

Mr Justice Fullager, it appears that, in my

submission, His Honour was moved significantly by

the judgment of, in particular, Mr Justice Marks

and also the other members of the court in striking

at the time when that court struck out the appeal,

that is on 30 November 1992. While I note that

His Honour refers to some additional material,

material that is now before Your Honour which I
wish to take you to about- the state of health of

the applicant, and the -

HIS HONOUR:  Take the second page of this judgment. His Honour says that the evidence to which you wish

Sali 7 26/2/93

f"

to take me, I gather, was available at the time and

there is no explanation on oath as to why it was

not put forward at the time.

MR THOMAS:  Yes. There is now before Your Honour an

affidavit by Mr Ross McLindin in relation to that

matter as to why - - -

HIS HONOUR:  You chose not to put the affidavit on before

the Full Court but yet you bring it here.

MR THOMAS:  Yes, Your Honour. It is a difficulty that I

have anticipated, in that sense, that it is a very

real one. Could I perhaps take Your Honour to that

affidavit of Mr McLindin's to - - -

HIS HONOUR: Well, do you wish to say anything about what

His Honour has said there about the unavailability

of the material before the Full Court?

MR THOMAS:  In Mr McLindin's affidavit he states that

because of the way in which he perceived the Full

Court was dealing with the application for an adjournment and certain expressions by

Their Honours he, in conjunction with counsel, took the decision that there was no purpose in putting

that material before the Full Court at that time.

Now, while one can with hindsight say that clearly

that was the wrong decision at the time, it is a

case that that failure occurred without the benefit
of the applicant being present, who was then in

hospital approaching major surgery - - -

HIS HONOUR:  His Honour is speaking here about 5 February.

MR THOMAS: Sorry, I was addressing - taking Your Honour to

the passage you are particularly looking at, I was

going back to 30 November.	Which is the passage
Your Honour is referring to?

HIS HONOUR:	The top of the second page of Their Honours' judgment, the judgment of Mr Justice Fullager.
On 5th February no explanation was given to the Full Court as to why the evidence with respect to the illness of Mr Sali was not put
forward at the time.

MR THOMAS:	I cannot assist Your Honour further in relation to why that was not done on that day.
HIS HONOUR:	Very well. His Honour goes on:

There is no evidence by which I would be

persuaded that the appellant intended to

conduct the appeal personally.

Sali 8 26/2/93

Is that a correct proposition or is it one you seek

to challenge?

MR THOMAS:  I am not in a position to challenge it,

Your Honour.

HIS HONOUR:

Or if the matter was to be conducted by

counsel, that his absence for a day would have

prejudiced the conduct of his appeal.

Is that something which you seek to challenge?

MR THOMAS:  Yes, Your Honour. In relation to that, the

application that was made on 30 November on behalf
of the applicant was, first of all, for an

adjournment of - I think the first application was

seven days, Your Honour. That was rejected. There

was then put to the court an application that the

matter be adjourned for 24 hours.

HIS HONOUR:	I think only till 2.15.
MR THOMAS:	And then, ultimately, it became till 2.15 and

the court rejected both those·applications.

HIS HONOUR:	And then counsel withdrew.
MR THOMAS:	And counsel then withdrew, correct, Your Honour.

So that in relation to that last part, while what

His Honour says is right at one level, in fact the

application that was ultimately dismissed and the

way in which the prejudice would arise is the fact

that there was an application for an adjournment

till after the luncheon break. That application,

in my submission, would have been totally

reasonable and while I understand what Your Honour

said about why further material was not put before

the Full Victorian Supreme Court on 5 February, I

am afraid I am not in a position to explain how

that case was run or why. But, obviously, that is

something that is material to Your Honour.

But if I could perhaps look at it from a

different aspect, Your Honour. What appears is

that, in part at least, some of the mistakes that

occurred, if I could use that term loosely for the

moment - and I do not mean it in any disrespectful

way to any counsel or otherwise - but some of the

mistakes that occurred on 30 November and, perhaps,

on the 5th, are mistakes of the applicant's legal representatives and that those mistakes ought not

to impinge on his right to a fair hearing.

The particular situation that the Full Victorian Supreme Co~rt found itself confronted

Sali 9 26/2/93

with on 5 February was that - if I could take

Your Honour to that 5 February again, the Full

Bench was made up of Mr Justice Fullager and

Mr Justice Marks and Your Honour will remember that

it is Mr Justice Marks who dismissed the

application on 30 November. I would suggest, in my

respectful submission, that in those circumstances

the court on 5 February may not have been able to,

as it were, fully appreciate errors that may have

crept into the decision-making process on

30 November and that the real problem in this case,

if I may put it that way, goes back to 30 November

and what happened on that day and the application

for an adjournment.

The first page of Mr Justice Fullager's

judgment, where he relies on primarily the judgment

of Mr Justice Marks, in my submission, discloses

the operative factors in relation to the decision

of the Full Victorian Supreme Court on both

occasions and that that really goes back to the way

in which Mr Justice Marks and the other members of

the court on the 30th perceived what was happening

before them in relation to the application. And

what I would say is that that is the very subject-

matter that is before this Court in the special

leave application and that the 30th is the crucial

datum point for everything else that happened

thereafter.

So that that is the focus of the special leave

application. That issue, perhaps, is the most

important one as to whether there was some error in

the way in which the case was decided on the 30th,

and whether it is an error that this Court ought to

correct. If that is the case, then the only remedy

that the applicant has is to seek a stay at this

time until the special leave application is heard

because, if the stay is not granted, then the

special leave application becomes nugatory, it
becomes of no effect because, by that stage, the

petition will have been heard on Monday, the

applicant/debtor at that time will be forced to

liquidate assets and my submission would be that

while the debt is some $100,000-odd, there is some

evidence in the application books and in the

affidavit of Mr Sali sworn 19 February, that he does have assets to cover that debt and that to

force his estate into sequestration would be
disproportionate in the circumstances, considering

that there is only a 12-day or 15-day wait and that

not only may the respondent/defendants be protected

by an appropriate award of interest in this case -

there are no assets that could be lost except for -

I am sorry, I withdraw that. It is a bad way of

putting it. In relation to the assets, I am

instructed to provide to the Court whatever

Sale 10 26/2/93

undertakings are necessary in order to provide that

the assets of the applicant/debtor are not disposed

of, pending that special leave application being
heard.

Your Honour, that has covered a number of points. Perhaps the two major points would be to

satisfy Your Honour about the question of success

of a special leave application, to fall within the

first rule of the Burgundy Royale case, and the second one about the balance of convenience. I

have perhaps taken that last point, as I have

indicated I have instructions to give those

undertakings that are necessary. The issue is one

of recovery of costs and disbursements, not

recovery of particular property in any case. A

matter of interest can take care of the legitimate,

in my submission, interests of my opponents. The disproportionality would arise in relation, then,

to the effect of a refusal for a stay. If I take

Your Honour to the affidavit of Mr Sali, sworn

19 February 1993, which is before Your Honour,

page 2 of that affidavit, point 5, he deposes to

the fact that:

My law practice is the only asset which I

believe could be at a price which would meet

the amount claimed by SPC Ltd. I believe the

practice is worth in the vicinity of at least

$200,000.00 because I have work in progress

which I alone estimate to be no less than

$150,000.00.

But he goes on, if that is the case:

I will not only lose my sole means of earning a livelihood but would not be able to reverse the sale if I am successful in my application.

And I invite Your Honour to take judicial notice of

the fact that if sales, particularly of the

practice, did occur then that would be

irreversible. In that paragraph he also deposes to

the fact that he has a wife and a young family of

three children and, as I understand it, they are

young. In those circumstances that, in my

submission, will be disproportionate for this Court

to let that occur when the period is only some

15 days.

Your Honour, I also take you to the

application book. There are two affidavits by the applicant dated 27 March 1992, which is page 63 or

shortly thereafter, Your Honour, page 64, of the

application book.

Sale 11 26/2/93

HIS HONOUR:  Do the respondents have any objection to the

use of this material?

MR RIORDON:	No, Your Honour.
MR THOMAS:	I am indebted to my friend.
HIS HONOUR:	Do you have any objection to using this

material?

MR CAWTHORN:  Your Honour, I do not have a copy of the book

but otherwise, if my learned friend is referring to

material that - - -

MR THOMAS:  I do have one copy. I do apologize for that. I

made arrangements to obtain - sorry, Your Honour,

that is not the right affidavit, that does not

assist me.

HIS HONOUR:	What are you looking for?
MR THOMAS:	There is an affidavit that I have, Your Honour -

it may have been filed in the other proceedings -

there is an affidavit of the applicant dated
2 April 1992 which sets out further details of his

financial resources and there is an affidavit of

27 March 1992 which further sets out his resources.

HIS HONOUR: This is designed to show, I take it, that he is

solvent?

MR THOMAS:  Yes, Your Honour. It is exhibit HSl,

Your Honour. Those affidavits show, the 27 March

affidavit shows that he has assets, a residence at

21 May Grove South Yarra, owned jointly with his

wife, worth approximately $435,000; another

property, 40-42 Mary Street, Preston, valued at

$1.05 million; the law practice of $200,000, which

gives assets of approximately $1.6 million, and

liabilities which, primarily, apart from this debt

to the respondent/defendants are mortgages on those

first two properties. Other than that, the debts

are $40,000 for an overdraft and $29,000 for a hire

purchase and $20,000 for income tax, in my

submission, are fairly small. So that effectively,

apart from the normal mortgages, the position is

that he is trading and is able to maintain - is

solvent in that respect.

HIS HONOUR:  This balance sheet does not take account of the

joint interest of Mrs Sali, does it?

MR THOMAS:	Yes, I appreciate that, Your Honour.
HIS HONOUR:	So that if one were to take that into account?

Sali 12 26/3/93

MR THOMAS:  If it was 50/50 - I do not know what that

interest would be, but if it was 50/50, then it

would need to be reduced by that amount. But, in

my respectful submission, what we do have is that
we have the practice and, hence, that explains his

affidavit of 19 February which deposes solely to

his practice and the value of that practice as

being, perhaps, $150,000, and that if the stay is

not granted, that would have to be sold. In my

submission, that would be disproportionate,

considering the time period that is involved,

particularly if an undertaking is provided not to

dispose of assets. In that way, the

respondent/defendants would not be prejudiced, in

my respectful submission, at all. To refuse a stay

in those circumstances would be disproportionate.

Your Honour, if I then take you back to the

question of the substantial prospects of the
special leave application and the first requirement

under the Burgundy Royale test. Your Honour, in my

submission, that test is satisfied, that there is a

substantial prospect of success in that special

leave application.

HIS HONOUR:  You need to be precise about success. respect? There are two problems, are there not? In what

You are seeking a stay of the judgment which was

pronounced by Justice Ormiston, because that is the

judgment which imposes the pecuniary obligation

upon your client.

MR THOMAS: That is correct, Your Honour.

HIS HONOUR:  That was a judgment for costs following the

event.

MR THOMAS: Correct, Your Honour, yes.

HIS HONOUR:  Is there a challenge to the taxation of the costs or the making of the order?

MR THOMAS:  The challenge is to the making of the order. As

I understand it, there has been a taxation; the

challenge is to the order and, as I understand it,

there is no challenge as such to the taxation.

HIS HONOUR:  Then does that mean, first of all, that the

appeal to the Full Court which was dismissed was an

appeal that was instituted out of time?

MR THOMAS:	Not as I understand it, Your Honour.
HIS HONOUR:	Was there a taxation before the appeal was

disposed of?

Sali	13	26/2/93
MR THOMAS:	As I understand	it, that is what has happened,

Your Honour, yes.	I do not mean this is any
disrespectful way,	but there has been, if you like,
some fast tracking	of that part of the procedures.

HIS HONOUR:  Then, at all events, the appeal is against the

making of an order for costs following the

dismissal of Mr Sali's action?

MR THOMAS:  Yes, the appeal, to be precise, is against the

whole of the order and the consequences that flow

from it.

HIS HONOUR: That is against the judgment itself?

MR THOMAS:  Yes, against the judgment itself. And if I take

Your Honour to pages of the application book,

page 72 through to 74, Your Honour will find there

an outline of the arguments that at this time would

be put in relation to that judgment and in support

of the appeal.

HIS HONOUR:	I see.
MR THOMAS:	And at page 74 is the relief that the applicant

would seek if successful in that appeal.

HIS HONOUR:  Yes. Now let me ask you some other questions

which trouble me about this.	Was an appeal book
prepared for the Full Court?

MR THOMAS:  Yes. I am indebted to my friends. I note that

Mr Justice Marks says there was not a summary

before the court; I am not aware about that, but

apparently there was an appeal book prepared, yes.

HIS HONOUR:  Was junior counsel briefed, or intended to be

briefed?

MR THOMAS:  As I understand it, yes, although - I withdraw

that, Your Honour. I am not aware that junior

counsel was to be briefed. The only knowledge I

have - I simply said that because I was assuming if

senior was briefed, then junior would have been.

What I do know of myself - - -

HIS HONOUR:  I was making the same assumption. Is it a

valid assumption in the case of the Victorian Bar?

MR THOMAS:  No, I do not believe it is, Your Honour, any

longer. What I was about to say, Your Honour,

was - and not meaning any disrespect to

Mr Justice Marks, but the matter is a complicated

one and not a simple one; it has a long history and

there is other litigation - or there was other

litigation at the time involving a number of other

parties and this was part of that litigation. It

Sali 14 26/2/93

is during that process that I am aware that a

number of barristers were briefed at various times and in relation to this appeal as I understand it, the evidence is that - and there is the evidence of

Mr McLindin as well as Mr Sali in their

affidavits - the evidence was that they knew the

appeal was ultimately to be listed; they were
expecting it, in accordance with what was then the

Victorian practice, to be listed in February 1993;

that some changes occurred in the way in which

matters were being listed in late 1992, and the
matter was listed, as they would say it, in a

surprise way on 13 November for hearing on

30 November.

At that time, senior counsel who was briefed

and who had knowledge of the matter and, as I

understand it, knowledge of the other related

litigation which is relevant to this in a

tangential way but still relevant, and had a long

history with the matter, had scheduled February for

the hearing and was unavailable in November.

Matters then conspired with Mr Sali becoming

seriously ill and being in hospital on the 30th as

well. But in the two weeks, as I understand it,

that they had to not only obtain counsel but also

brief and have the matter prepared, they were not

able to do so. Now, I cannot take it any further

than that is what is the evidence that they say,

that during those two weeks they were not able to

find someone - and here I rely, Your Honour, on the

principles underlying Dietrich v Reg, and if I

could perhaps just read that citation - - -

HIS HONOUR:  I am familiar with the case.

MR THOMAS:  I am sure you are, Your Honour. That this was

not a matter which the applicant was prepared to

let be run by anyone without some knowledge of it;

it was not only an important matter to him but also

a very complicated matter, in his view, and I would

submit rightly so.	And that there was concern
during those two weeks to have proper

representation; representation by someone who was

able to spend some time preparing the matter.

HIS HONOUR:	Yes, I can understand that.
MR THOMAS:	And they were not able to obtain that.
HIS HONOUR:	Do you have a copy of the notice of appeal to the Full Court?

MR THOMAS: It should be, I believe, Your Honour, in the

application book. No, it does not appear to be. I

am afraid I do not have that appeal book,

Sali 15 26/2/93

Your Honour, and I am afraid I do not, I think,

have a copy of the - - -

HIS HONOUR:  What I was concerned to discover is the scope

of the appeal that was pending to the Full Court.

I see the grounds that you have drawn attention to

which do, indeed, cover the merits of the case so

far as it seems to go but it is important, I would

have thought, to your case, to establish that what

was pending before the Full Court was a review of

the whole of Justice Ormiston's judgment.

MR THOMAS:	Yes·.
HIS HONOUR:	And that the dismissal of the appeal related

not merely to the taxation of costs which had taken

place but to the whole of the merits of the case.

MR THOMAS: That, certainly, is my understanding.

Your Honour, it may be that my friend can confirm

that but it certainly, as I understand it, was an

appeal not on the taxation point but on the merits

of the case. There is some support for that,
Your Honour - I take Your Honour to the judgment of

Mr Justice Marks where he,. on the f•irst page - and that is page 53 of the application book,

Your Honour, in particular, at page 54 at
10 point 1:

All members of the Court have had the opportunity to read the judgment of the

learned trial Judge. It is not apparent on

its face that the appeal is one which would

require lengthy preparation for presentation

of argument -

and my submission, of course, would be that that

misconceives the nature of the matter -

although no doubt counsel engaged to argue the

appeal would be grateful for more than a

weekend in which to do it.

And he goes on.	Then on page 55, Your Honour, at
point 20:

I might say, speaking for myself, that I have

also read the judgment of the trial Judge -

he repeats himself, Your Honour -

and am able to agree with senior counsel for
the first respondent that, on its face, it

presents very great obstacles to success of

this appeal. I say that guardedly because I

have not heard argument in support of the

Sali 16 26/2/93

appeal and the appellant has not provided us (as the Rules require that he should have) -

and I understand that must be an additional

summary, Your Honour -

with an outline of argument. The prima facie

tenuousness of the appeal is only mentioned as

confirming in some minor way -

I submit, Your Honour, that that makes it clear

that the court was there considering an appeal on

the merits - it was not a question of taxation -

and that the appeal book, having been filed, did

provide the court with further information. As

Your Honour has pointed out, the outline of

arguments in Mr Sali's affidavit in the application

book indicate the basis for attacking the merits of

the decision.

HIS HONOUR: 

The next point that seems to me to be relevant to your argument is the material that was before

the Full Court on 30 November. Now, the reason why

I draw your attention to that date is that if there

is an appeal to this Court, it is an appeal which

is founded necessarily upon the material that was
before the court below, not upon the affidavits

which have been filed subsequently.

MR THOMAS: 

Yes, Your Honour.

HIS HONOUR: 

So that unless you can demonstrate that on the

material that was before the Full Court on
30 November, the decision arrived at by the
Full Court on that date was likely to be held to be

wrong, then you do not establish the prospect of

success which is necessary to found your present

application.

MR THOMAS: Yes, Your Honour. 

If I can perhaps take

Your Honour first of all to the judgment, once

again, page 51 of the appeal book.

is put in this way, Your Honour: it was accepted - The submission

and I think that that is made clear on page 54 at

the top, point 5, where His Honour Mr Justice Marks

says:

The only basis on which the present

application is put is inability on the part of the appellant to obtain the services of senior counsel.

And Mr Justice Marks then· refers to an affidavit

received from the second respondent in relation to

that point, and I cannot put it any higher than

that.

Sali 17 26/2/93

Your Honour, it is clear that an application

was made from the bar table for an adjournment
before His Honour, and my friend has now filed in

Court the affidavit of Mr Egon Fice which exhibits

to it a letter from the listing master to my

instructing solicitor dealing with that matter, and

also exhibited to that affidavit is a letter sent by same matter and indicating there would be an application for an adjournment.
facsimile from my instructing solicitor to

His Honour Mr Justice Marks also refers at

page 54, point 20:

The case was fixed either on 13th (or a short

time before) of this month.	The solicitors
for the appellant -

my instructing solicitors -

approached the Listing Master to re-fix the

date for hearing on the basis that senior

counsel who had been bespoken for the

appellant would not be available until

February.

In my submission, the court was proceeding upon the

basis that an application for an adjournment was

made on the ground that senior counsel would not

have been available. It is the decision - the

exercise of discretion by the court - - -

HIS HONOUR:  Where do I find, in Mr Fice's affidavit, the

availability of counsel?

MR THOMAS:  It is the one my friend filed in Court.

HIS HONOUR:  Yes. What paragraph of that affidavit refers

to the availability of counsel?

MR THOMAS:  I am sorry, Your Honour, it is annexed to the

affidavit. It does not appear to have its own

annexure, Your Honour. It is the letter of the

listing master dated 16 November, towards the back

of that - - -

HIS HONOUR:  Yes, I have seen a letter from the listing

master but, as I understand it, from the reasons

for judgment of Justice Marks, at page 54, line 5:

An affidavit has been received on behalf of

the second respondent to the effect that some
29 senior counsel were found to be available

on enquiry from four only of some eleven or

twelve barristers' clerks - - -

Sali 18 26/2/93

MR THOMAS:	Yes, Your Honour.
HIS HONOUR:	Now, is there anything which appears in this

affidavit of Mr Fice which answers that

description? Did Mr Fice file an affidavit which

said that?

MR CAWTHORN:	Your Honour, the material is not in Mr Fice's affidavit, but it was an affidavit filed by my
client, the second respondent. I have a copy of that but it is only a photocopy, Your Honour, if
Your Honour is prepared to consider that.

HIS HONOUR: It•is a question, I should think, for

Mr Thomas, in a sense, to demonstrate to me that

the material before the Full Court, when it refused
the application for the adjournment, was such that

the order ought not to have been made. One of the

grounds assigned by Justice Marks is that he did

not appear to accept the proposition that counsel

were not available. The argument that Mr Thomas

wishes to put is that counsel were not, in fact,

available and it is on that account, as I

understand it, that the challenge is made to the

Full Court's judgment. Is that right, Mr Thomas?

MR THOMAS:	Yes, Your Honour.
HIS HONOUR:	Arn I understanding it correctly?
MR THOMAS:	Yes, that is right, Your Honour.
HIS HONOUR:	It seems to me that if you are saying that the Full Court failed to do natural justice to your
client because it refused to adjourn, having brought the matter on quickly in the Spring offensive, at a time when no counsel were
available, if there was material before the
Full Court which demonstrated that counsel were, in
truth, available, that does not leave you with much
of a feather to fly with, does it?
MR THOMAS: Well, certainly, it is a difficulty. The Dodo

rises. That is certainly right, Your Honour.

There is an affidavit by Mr McLindin to the effect

of his inquiries and that appears at page 89 of the

application book.

HIS HONOUR:  Yes, I have read that affidavit, that some 20

counsel or 26 were approached and were unavailable.

MR THOMAS:	Yes. That was sworn on 27 November 1992.
HIS HONOUR:	But that was not put before the Full Court, was

it?

Sali	19	26/2/93
MR THOMAS:	No.	As I understand it, that is exactly the

problem.

HIS HONOUR: That is a very real problem, is it not?

MR THOMAS:  Yes. I can only go back and take Your Honour to

a comment I made earlier, namely, that the fault

therein lies in the actions of, perhaps - and I do

not mean it disrespectfully - my instructing

solicitor or counsel on the day, and that that

should have been put - - -

HIS HONOUR:  I can understand that you are not anxious to,

as it were, heap coals of fire on your predecessors

but the problem :or a litigant is that a litigant

is in the hands of his legal advisers.

MR THOMAS: That is right.

HIS HONOUR:  And in this case, if a challenge is to be made

to the decision of the Full Court to refuse the

adjournment, one needs to understand what the Full

Court was dealing with. It was dealing with a

case, as I understand it, in which it was said by counsel from the bar table, "We haven't been able

to secure the services of senior counsel",

whereupon an affidavit is put on saying, "Well,

there are a number available. Here's the proof of

it."

MR THOMAS:  Yes. But, with respect, Your Honour, it is a

little like the problem that faced Your Honours in

Dietrich, in a sense: certainly there is counsel

available but is it counsel - and obviously there

must have been counsel available somewhere in
Australia that could have been prevailed upon to turn up on the day. As I understand it, what is disposed of in that affidavit is to the effect

that - I take Your Honour to - Your Honour will

need to see that affidavit, perhaps. But what

Mr Justice Marks says:	An affidavit has been received on behalf of
the second respondent to the effect that some 29 senior counsel were found to be available
on enquiry from four only of some eleven or twelve barristers' clerks when that enquiry
was made on Friday, 27th November.

What was put to the court though, as I understand

it, Your Honour, is that no counsel was available

prior to that Friday who was prepared to appear on

the 30th because of the inability to have enough

time to prepare. The fact that there was counsel

available on the 27th: what exactly does that

mean? Does it mean that there was counsel

available and not appearing in court on Monday?

Sali 20 26/2/93

The point I am making, Your Honour, is that I am

not sure exactly what conclusions can be drawn from

a statement that there was counsel available

because the question is twofold: one is whether

there were counsel who were prepared to act for

Mr Sali on this matter because of the nature of it

on short notice and, secondly, whether there was

counsel of his choice; whether there was counsel

who had some knowledge of the matter who would have

been available, and those matters - I accept what

Your Honour has put to me that there was no

evidence, it was put from the bar table, but that

was the application that was put and the

application was ultimately for a short adjournment.

Particularly if there was some merit in my friend's affidavit that there were counsel available, then

obviously there may have been an argument that the

wrong counsel had been contacted by my instructing

solicitor.

HIS HONOUR: Is a transcript available of the proceedings

before the Full Court?

MR THOMAS:  I am not aware that it is available, but it

certainly could be obtained, Your Honour.

HIS HONOUR:  Is a transcript ordinarily taken of argument

before the Full Court?

MR THOMAS:  As I understand it, it is, Your Honour, yes.

Your Honour, if I could perhaps refer Your Honour

to one authority, GSA Industry Pty Ltd v NT Gas

Ltd, (1990) 24 NSWLR 710, at page 712. There

President Kirby was talking about the issues of denial of natural justice and procedural fairness in relation to adjournments and His Honour there

refers to the authority of Evans v Bartlam, (1937)
AC 473, at page 487. His Honour says:

"A decision by a judge whether to grant

or refuse an adjournment 'is a typical
exercise of purely discretionary powers, and

would be interfered with by the Court of

Appeal only in exceptional cases, yet it may

be reviewed by the Court of Appeal':	Evans v
Bartlam.

Your Honour, as I remember that case that dealt

with the question of power of the court to overturn

default judgment and one of the significant factors

the court relied upon there was the failure or the

incorrect conduct of the legal adviser of the party

who was seeking to overturn that judgment.

If there is any fault, then that is the fault

of the people who were acting for the applicant at

that time. That fault ought not to be visited upon

Sali 21 26/2/93

him if he has in fact been denied a hearing. I put

it this way, Your Honour, that an application for a

short adjournment is very rarely refused especially
if the situation is that it is put to the court
that counsel are in some difficulties or, more
importantly, if it is a case of a failure to obtain
representation, something has happened with
representation. It is not, unfortunately, unusual
for counsel to be unable to appear in a matter at
the last moment nor is it unusual for applications

to be made to the court. Usually, I agree, they

will be made by consent; in this case, they were

not and certainly is ...... position.

HIS HONOUR:	I understand those difficulties, Mr Thomas. The problem it seems to me that you face - and
perhaps this is not the place where you have to face it - is that by reading the judgments of the
Full Court on 30 November and perhaps, more, the
judgment of Justice Tadgell from that of
Justice Marks, it would appear that from what
transpired in the court that morning, the court was
satisfied that this was a piece of humbug that was
being perpetrated upon it.

Now, I understand your argument that if that

was the impression that the court obtained, that

that was the fault of those who were then

representing your client, but it seems to be a long

bow to say that on that account, their submissions

now being shelved, as it were, you are able to

demonstrate an absence of natural justice in the

court's refusal of the adjournment.

MR THOMAS:  With respect, Your Honour, I would say that the

situation is, for example, on all fours with Opitz'

case v Repatriation Commission, (1991) 29 FCR 50,

and the appropriate passage is at page 59. There,

Your Honour will remember, a question had arisen as

to whether the applicant had been denied natural

justice by not being granted an adjournment when an

earthquake, in fact, had interfered with his

ability to communicate with the tribunal, and at

page 59, Mr Justice Hill said this:

Mr Opitz apparently regarded the statement

theretofore made by him as inadequate and

wanted the ability to put the matter to the

Tribunal by telephone. The failure to afford

the appellant this opportunity in the

circumstances of this case was, in my view, a breach of procedural fairness and constituted

an error of law which requires the matter to

be remitted to the Tribunal.

Your Honour, it may be that on the evidence

that ultimately is before the Court, the Full Court

Sali 22 26/2/93

would say that there was no denial of natural

justice. The question, with respect to this Court,

is whether that issue is an arguable one; whether

there is some evidence to support that argument.

HIS HONOUR:  I understand that. The problem that I face at

the moment is that you have not provided me with

the material upon which this Court will have to
consider the question of whether there was a denial
of natural justice, to wit, the proceedings before

the Full Court.

MR THOMAS:  I understand what Your Honour is putting to me

is the failure to establish what evidence, if any,

was put before the Full Court on the 30th.

HIS HONOUR:	Yes.
MR THOMAS:	It is clear - and I cannot escape the problem,

Your Honour - that there was no other evidence apart from what was put from the bar table.

HIS HONOUR:  But I do not even know what that was.

MR THOMAS:  No. Well, Your Honour, the only way in which

that matter may be satisfied would be if this

application is adjourned to enable that transcript

to be placed before Your Honour. The difficulty,

of course, is the Monday hearing, but that would be

the only other way that I can present to

Your Honour what occurred on that -

HIS HONOUR:  I think I understand the nature of your

application. I will hear from other counsel if you

having nothing further to add to it but if you have

something, then please do so.

MR THOMAS:  I would refer Your Honour to the decisions which

are set out at page 5 of the submissions in

relation to the question of the right to a hearing

and perhaps in particular the decision of Sullivan

v Department of Transport, (1978) 20 ALR 323, at

page 343. There, at page 343 at point 55 - perhaps

it is reiterating it, but:

A refusal to grant an adjournment can

constitute a failure to give a party to

proceedings the opportunity of adequately

presenting his case.

I would say that here the failure to even grant an

adjournment until after lunch was, in the
circumstances, considering·the consequences, the

striking out of the appeal and ending that appeal

process, so onerous that there was an obligation on

the court in accordance with the concepts of

Sali 23 26/2/93

natural justice and due process to grant an

adjournment of some sort, albeit on conditions.

There was no discussion by the court about

possible terms or conditions for any adjournment,

even until after lunch-time. Yet the consequences

were to strike out the appeal, to end the

applicant's possibilities of contesting that

judgment. In those circumstances, that, in my

submission, is an exercise of discretion which has

miscarried; it is oppressively unfair and denies
the opportunity to be adequately represented before

the tribunal.

It would have been equally possible for the

court to adjourn the matter on particular terms, to then consider, particularly if it believed that the matter was humbug and, with respect, there appears

to be no evidence before the court that that was the

case except for the fact that an affidavit had been

tendered which said that counsel was available and

the appellant said there was no counsel available -

and certainly not on evidence, I take that point -

but apart from that there appears to be no evidence

before that court which would justify it in saying

that the matter was humbug.

The appropriate step, in my submission, would

have been to adjourn for a short time. That is the
issue which, in my respectful submission, may well
be decided in favour of the applicant on a special
leave application. If the stay is not granted,

that point will never be reached. It is, in my

submission, a matter where convenience, in this

instance, ought to be in favour of the applicant

and that justice needs to be tempered with some

degree of humanity in that circumstance.

HIS HONOUR:  Mr Thomas, there is one further point, I think,

perhaps you should address and that is this:	this
is an application to invoke the exceptional	jurisdiction of this Court to grant a stay.

MR THOMAS:  Yes, Your Honour.

HIS HONOUR: That word "exceptional" means exactly what it

says. It is not done as of right or in the

ordinary course of proceedings. Why is it that

that exceptional jurisdiction should be invoked,
assuming the validity of your other points, rather

than the matter be left in the hands of the Court

of Bankruptcy which can adjourn, if it sees fit,

the application on Monday?

MR THOMAS:	Your Honour, I think the answer to that lies in the fact that the respondent/defendants were not
prepared to consent to an adjournment for any

Sali 24 26/2/93

length of time to enable counsel to be obtained, in
the circumstances of the appeal coming on within
two weeks' notice. In those circumstances, there

is little prospect, I would suspect, of any

consents to an adjournment of the bankruptcy

proceedings taking place on Monday.

HIS HONOUR: It might not be a matter of consent. It might

be a contested application.

MR THOMAS: Certainly.

HIS HONOUR:  But why is it that the Court of Bankruptcy -

Federal Court - should not be the court to take control of these proceedings, after all, it being

the court which is concerned with the relative

rights of the debtor and creditor?

MR THOMAS:  The answer, Your Honour, can only be found in

this: if the Bankruptcy Court disclaims that

jurisdiction or that exercise of jurisdiction and

the matter proceeds, then it will be too late.

Then the special leave application will be rendered

nugatory. Unless this Court acts, there is

certainly no guarantee, in my respectful

submission, that the Court in Bankruptcy would do

that. It may, but it may not, particularly if the

matter is opposed.

HIS HONOUR: So, this is an application for insurance?

MR THOMAS:  In the nature of things, Your Honour, it has to

be. Without this insurance, there is only

bankruptcy.

HIS HONOUR:  Yes, I understand the argument.

MR THOMAS: If the Court pleases.

HIS HONOUR:	Yes, Mr Riordan?
MR RIORDON:	Your Honour, I have handed up the first

respondent's outline of submissions.	I do not know
whether Your Honour has that before you.	It was
attached to the chronology.

HIS HONOUR:  I have them here but I have not read them,

Mr Riordan, so perhaps I should do that.	Yes,
Mr Riordan?

MR RIORDON:  Your Honour, if I could start where Your Honour

left off on the issue of the appropriate test to be

applied by Your Honour in approaching this

application, and that is, as Your Honour has

already indicated, it is an exercise of

extraordinary jurisdiction of this Court and, in my

respectful submission, on the authorities should

Sali 25 26/2/93

not be granted in the absence of any special or

exceptional circumstances.

The matter that Your Honour raises is quite

correct, that this matter, whilst it is listed

before the Federal Court in its bankruptcy

jurisdiction on Monday, has a range of options

available to it without having to require

exceptional circumstances and Your Honour has heard

already submissions based on the premise that the
applicant is not a bankrupt and under those

circumstances, apart from the possibility of

adjournment, he may well have defences to the

application. I do not intend to go into that in

anymore detail, Your Honour, but simply to indicate

that - - -

HIS HONOUR:  But is it right that the applicant needs this

insurance because your clients, at least on your

part, will not be consenting to an application for

an adjournment?

MR RIORDON:  On my instructions, there have been no requests for that adjournment, Your Honour.

HIS HONOUR: Perhaps I need to understand whether insurance

is necessary. Are we wasting our time here?

MR RIORDON:  Your Honour, my understanding is, and I have

not got specific instructions about this, I

suppose, Your Honour, my clients may not be keen to

consent to an adjournment in the matter, given the

background of it. I suppose it would depend on

what proposal was put by the applicant,

Your Honour. If it was an unconditional request

for an adjournment pending the application for

special leave, I am not sure that my clients would

respond favourably to it.	I have no instructions
about it, Your Honour.

HIS HONOUR:  We are talking here about 15 days and the

making of a sequestration order and we are

speaking, I would have thought, about assets, the

realization of which is not likely to alter in its

prospects for the judgment creditor in the space of

a fortnight.

MR RIORDON: That may be so, Your Honour. All I can say in

response to that matter, Your Honour, is that one

of the factors on a practical level, given the

history of the matter which I was proposing to take

Your Honour through, is that a judgment creditor in

these circumstances may be wanting - if he

considers that greater efforts could be made to pay

or secure the amount, may well use a day such as

this as reason - in the hope that some proposition

might be put to him to better secure his prospects

Sali 26 26/2/93

of payment, Your Honour. That is, on a practical

level, the only response I can make to the 15 days.

HIS HONOUR:  Yes. You are entitled to put your case in

whichever way you think appropriate.	It is not for
you, if you do not - - -

MR RIORDON:  It may be a matter I could seek some

instructions about whilst my learned friend is

making some submissions, Your Honour.

HIS HONOUR:  If the matter is likely to be met on terms

which are satisfactory to the parties before the

Federal Court next Monday, it seems to me that the

desirable course is for me to adjourn this

application, hear the application which is listed

to follow the present one, and give you an

opportunity to consider amongst yourselves whether

there is any prospect of solving the matter on that

basis.

MR RIORDON:	I am in Your Honour's hands in that regard.
HIS HONOUR:	I will see what Mr Cawthorn has to say. What

do you say, Mr Cawthorn?

MR CAWTHORN:  If Your Honour means to stand the matter down

until after the next matter is heard, I am quite

content to do that and discuss the matter with

Mr Thomas, if Your Honour pleases.

HIS HONOUR:  Yes. I will do that, I will stand the matter

over so that I will not take the resumption of this

application until 11.30, and if the matter can be

solved in the meantime, well and good.

MR CAWTHORN: If Your Honour pleases

AT 10.54 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.40 AM:
HIS HONOUR:	Mr Riordon, what progress?
MR RIORDON:	Your Honour, we have had some discussions but I

regret to advise that they have not been fruitful.

In those circumstances, I think we are seeking that

the matter proceed.

HIS HONOUR:  Yes, very well.

Sali 27 26/2/93

MR RIORDON:	Your Honour, the matter that I was going to deal with briefly was to run through the history of
the matter with Your Honour.  I understand that my
learned friend has done that to some extent, and Your Honour has had the advantage of the
chronology, but much of what has occurred, in my
respectful submission, occurred as a result of the
previous events leading up to 30 November.
Your Honour will note that the original judgment of
the trial judge His Honour Mr Justice Ormiston was
delivered on 1 October 1991 and it was that order
which dismissed the plaintiff's claim and ordered
the plaintiff pay the defendants' costs, which was the order which was sought to be appealed by the
plaintiff when it came on 30 November.

The first respondent had his costs taxed in

February of 1992, of last year, and in March,
within a month of that, the current applicant made

application for a stay of execution of those costs.

Your Honour, there is an affidavit - - -

HIS HONOUR:  When was the notice of appeal filed in the Full

Court?

MR RIORDON:	I have not got the date in front of me, Your Honour, but my understanding is it was within
time, therefore would have been in November of
1991.  So the appeal would have been lodged at the
time of the taxation of costs.
HIS HONOUR:	Yes.
MR RIORDON:	The summons seeking a stay of execution was

then lodged and that came on before the Full Court

on 13 April 1992. Your Honour, at that time there

was an affidavit filed by the applicant, which

Your Honour should have before you as exhibit HS!

to the affidavit in support of an application for

special leave. I think it is the affidavit my

learned friend took you to which, on page 4 of that

affidavit, has details of his assets and

liabilities and showing that he is solvent and has

net assets of some $348,000. If I could take

Your Honour to the following page to paragraph 10,
Your Honour will note that the deponent, who is the

applicant, said this:

I have the property at 40-42 Mary Street,

Preston on the market and am advised by those

effecting the sale that I should receive a

price significantly in excess of the valuation

referred to in paragraph 9 hereof (namely

$1,050,000.00) upon an orderly sale. Upon

achieving the sale being pursued I would be

able to pay the costs payable even before the

Appeal hearing if required to do so.

Sali 28 26/2/93

Your Honour, if I could then take you to part of

the same exhibit, but in a following affidavit - it

should be all together - there is a supplementary

affidavit of Haset Sali. Paragraph 2 is the

relevant paragraph and if I could summarize it,

Your Honour, it refers to the progress in the sale

of Mary Street, Preston and states that there were

three people expressing interest at $1.15 million

at that time. As a result of those affidavits, and

the request expressed by the applicant to have time
to organize an orderly sale, the Full Court ordered

a stay of execution for three months.

On 10 July of 1992, which was almost three

months after that time, there was a summons seeking

a further stay. Now, on that occasion,

Your Honour, there was a further affidavit filed

which I believe is HS2, the second exhibit to the

same affidavit. It was an affidavit dated

3o July 1992 and on that occasion there was no

mention in the affidavit about what had happened

with the progress of the Preston sale.	However, in
paragraph 4, he mentions that:

Although I have some assets and at least two
major consultancies ·in prospect which will

provide me with considerable income, I am not

presently able to meet the full demand.

On page 3, Your Honour, he makes further comments

and in paragraph 9, in particular, he says:

I understand that at all relevant times SPC

Ltd carried insurance against any neglects or

errors of its officers and directors. I am

now advised that it is open to me to make a

claim on such insurance in relation to the

costs of this matter which I intend to pursue. Paragraph 10 is also relevant, if I could direct

Your Honour's attention to it:

My solicitor has made enquiries with the

Prothonotary as to the state of the List for

the hearing of Full Court Appeals. I am

advised that this appeal is likely to be heard

in mid-September 1992.

Your Honour, on the basis of that material, the Full Court were not prepared to grant a further

stay and dismissed the application. However,

Your Honour, as the appeal was at that stage

expected, according to the affidavit material, to

be heard in mid-September, which was only one month

away from the time that this application actually

came on, the respondents gave an undertaking not to

proceed with the sequestration order and the

Sali 29 26/2/93

appellant gave an undertaking to prosecute the

appeal with the utmost expedition.

HIS HONOUR: That is something that puzzled me, looking at

these papers, because I notice that undertaking,
yet I see that on 8 September the petition was

issued.

MR RIORDON:  The petition was issued on 8 September. I

think - - -

HIS HONOUR: 

I think I derive that from exhibit HSHC2.

MR RIORDON: 

I am instructed, Your Honour, that the extent

of the undertaking was not to delay the issuing or
the filing of the petition but simply not to

actually seek the sequestration order. So that

they were entitled to move the proceeding along, a

bankruptcy notice having been served. But it was
not part of the undertaking, and it may not be

properly expressed there, not to file petition but

simply not to seek the sequestration order. That

would be held off.

HIS HONOUR: 

Even in that respect it appears that there was

a date fixed for the sequestration order of

12 November which was extended on 13 November,

according to the date stamp on the Deputy

Registrar's signature, to 1 March 1993.

MR RIORDON:  My instructions are, Your Honour, that given

that at that point in time it was expected that the

appeal would be heard in a very short period of time, in mid-September or thereabouts, the date given for the November would have been expected to
have been after the appeal date. As events turned out, that was not the case and, in accordance with the undertaking, our instructing solicitors had the
date extended so that it would not come on for a

sequestration hearing prior to the hearing of the

appeal.

HIS HONOUR:  The document was not served at that stage, I

take it.

MR RIORDON:  It was not served at that stage, no. On

13 November 1992 the appeal was fixed for hearing

on 30 November 1992. Your Honour has already been

taken to the letter which was exhibited to the

affidavit of Mr Fice in which the listing master

refers to the fact that the applicant has had

difficulty obtaining the counsel he wanted and the

listing master says that he has consulted with the

presiding judge of the second Full Court and that

none the less he will be required to be in a

position to proceed on 30 November. That letter,

Your Honour will recall, is dated 16 November. On

Sali 30 26/2/93

30 November 1992, the application for the

adjournment was made and refused.

With that background, the matter now comes

before Your Honour requesting a stay. In my

respectful submission, as Your Honour has already

indicated, the authorities require not simply that

there is some arguable case but that Your Honour is

satisfied that there is a substantial prospect that

special leave to appeal will be granted.

In my submission, there appears from the material to be two bases upon which the applicant

says that he has prospects of appeal to this Court

or at least to get special leave to appeal to this

Court. The first of those, Your Honour, is that he

says there was material about his health and

ability to attend which was not put, and that

should have been put, and that for that reason he

should be entitled to bring special leave.

I infer from Your Honour that Your Honour has

already noted that there is no allegation that this

is fresh evidence as such, and that it was material

that was not available, not only with reasonable

diligence, but in fact the material shows that it

was available and known to be available to the

advisers at the time. The affidavit of Egon Fice

makes it clear that as at 30 November the position

with the applicant was that despite his medical

condition - I should say that prior to him
suffering the medical condition on the night prior
to the hearing, the decision had already been made
to make application for an adjournment on the basis

of the availability of counsel.

In my respectful submission, the position is

that the applicant would not be permitted to

produce evidence of his medical condition in view

of the fact that his own material reveals that both
his counsel and his instructing solicitor were

aware of it at the time that they made application

to the Full Court and decided, Your Honour, not

to - - -

HIS HONOUR: This Court does not ordinarily decide matters

on the basis of evidence which is not before the

Court below in the exercise of its appellate

jurisdiction. So it is not a question of fresh

evidence, so much; it is a question of whether or

not there was material before the court below.

MR RIORDON:  And in those circumstances, in my respectful

submission, all of that material that relates to

the health of Mr Sali on the night prior to the

hearing does not advance his prospects on appeal

because it is common ground - and certainly

Sali 31 26/2/93

conceded on the applicant's own material - that

that material was not adverted to the Full Court.

HIS HONOUR:	Mr Riordon, the case you have to meet, I would have thought, is this: there is a Full Court record
prepared. That I gather is common ground. The
Full Court record, I assume, must have been quite voluminous to have covered the bulk of the evidence
that was in the hearing before Justice Ormiston.
Senior counsel had been retained in the light of the intimation from the listing clerk that the matter would be listed at the beginning of 1993.
Then by reason of what is known, I gather, as "the
Spring offensive", the listing date is changed and the appellant is then embarrassed by reason of the difficulty in acquiring counsel of his choice to
argue this matter.  The matter is listed before the
court on the morning of the 30th - and here we run into the grey area because the material is not in front of me - but it would seem that counsel then
said, "We have not been able to get counsel to
argue this. At least give us an adjournment until
2.15", and the court says, "No."  And the appeal
thereupon is dismissed without a hearing.

MR RIORDON: That is so, Your Honour.

HIS HONOUR:  And, indeed, on the basis that there was no

appearance.

MR RIORDON: That is so.

HIS HONOUR:  The question really is, in the light of the

refusal of that application for an adjournment,

limited though it was, is it right to say that the

court, whose listing procedures had contributed to

the difficulty, according to the appellant, that he

was in, should have refused the adjournment for so

short a time.

MR RIORDON:  If I could go to that matter then, as to

whether the decision made on the material before it

was a proper one, Your Honour.

HIS HONOUR:  Yes.

MR RIORDON: May I say this, Your Honour. Firstly,

Your Honour will note that it was a unanimous

decision of the Full Court and that a reading of

the judgment of Their Honours indicates that they

took into account what is, in my respectful

submission, proper considerations in coming to the

view that they did. The first one, and in my

submission the most powerful one - and it is

adverted to in the judgment of His Honour

Mr Justice Marks - is that the appellant had had

some - at least two weeks notice to his knowledge -

Sali 32 26/2/93

of the fact that this appeal was corning on.	And
the reference to "of his knowledge", in my

submission, is made clear when one sees the letter

from the listing master where, at an earlier date,

the appellant had indicated that he would prefer to

have another date. There had been a specific

direction from the presiding judge, being

His Honour Mr Justice Marks, that that was not an

acceptable reason and that the matter would be

proceeding on the 30th and that he would need to

brief counsel.

What ultimately needs to be tested is whether

on that one factor, that stands as one factor, the

reception that then the appellant gets when he gets

along to court and says that, for the very reason

that has already been rejected by the listing

master, which is quoted to be the only reason - and

Your Honour will note that in the judgment of

His Honour Mr Justice Marks it is referred to as

the one basis upon which the application was made -

that they repeat the application and seek an

adjournment.

Your Honour, there was, at that stage, only

one piece of evidence before the court. Apart from

the submission which said that the appropriate

counsel could not be retained, the only affidavit

evidence had been filed by the second respondent

which had indicated that some 29 senior counsel

were available on but four of the eleven lists, and

His Honour Mr Justice Marks refers to it in his

judgment, and that there was no other evidence

available. Your Honour will also note that there

is reference by Their Honours, certainly by

Mr Justice Tadgell, and I believe also by

His Honour Mr Justice Marks, to the period of time which they believed that it would take counsel to

prepare for the case. And they adverted to that

matter and made reference to it and I think

His Honour Mr Justice Tadgell suggested it was a

case that would take maybe two or three days to get	up. His Honour Mr Justice Marks indicated that you
might appreciate more than a weekend, but in my
respectful submission suggest that would have been
adequate time to get it up, given the fact that
they had had some two weeks to get prepared, that there had been more than enough time for the appellant to get himself ready.

Really what the issue came down to then was

that they then drew some inferences from the nature

of the application and Your Honour can see that

they have said that essentially they have not

accepted that the appellant has made a serious

attempt - and as His Honour Mr Justice Tadgell

refers to it - he said the submission smacked of

Sali 33 26/2/93

humbug. Now, there was also the matter of the

breach of undertaking that was adverted to in the

reasons of -

HIS HONOUR:	What was the breach of the undertaking?
MR RIORDON:	The breach of the undertaking was, as I

understand it, Your Honour, that he had failed to

bring the matter on for hearing at the earliest

date which had been available. Whereas his

undertaking which had been made on 14 August, when

the respondents had given undertakings not to seek

a sequestration order pending the appeal, the

appellant had given an undertaking to prosecute the

appeal with the utmost expedition.

HIS HONOUR:  The appeal book was ready. It was only the

matter of the hearing, was it not?

MR RIORDON:  Yes, it was only the matter of the hearing and

Their Honours took the view - and essentially,

Your Honour, in my submission, it was a matter of

they inferred what they believed the position to be

and that was that the proffered excuse or the

proffered reason for the necessity for the

adjournment - that was the unavailability - was not

the position. They did that on the basis of the

only evidence that was available to them at the

time, which was the affidavit evidence as to the
availability of counsel, and having heard those
submissions and having read that affidavit, they

then concluded that this was a delaying tactic.

HIS HONOUR:	Yes.
MR RIORDON:	Now, in my respectful submission, all proper

considerations - they have looked at the evidence

available at the time - - -

HIS HONOUR:  You do not need to argue the case for special

leave. I know what the nature of the problem is.

MR RIORDON:

Yes. The simple point I was trying to make,

Your Honour, was that in terms of appealing, it

will be necessary to show that they have taken into

account improper considerations or irrelevant

matters or have failed to take into account

relevant matters or proper considerations and, in

my respectful submission, there has been nothing

that has indicated that they did so, and a reading

of the judgment does not indicate it.

HIS HONOUR:  What do you say about the proposition, that if

they had adjourned until 2.15 there would have been

no damage done either to the interests of the

respondents or to the court lists?

Sali 34 26/2/93

MR RIORDON: Your Honour, I say this: the first application

that was made was made on the basis that it was

essential to get counsel involved to have an

adjournment for 7 days.

HIS HONOUR:	Yes, I appreciate that.
MR RIORDON:	Having heard that application, the bench formed

the view - and it is expressed in the judgment -
that this was a delaying tactic and it was humbug.

During the course of that, counsel for the appellant was asked, in view of the fact that he said they were not prepared to proceed at that time, whether there was any proposition that he

wanted to put to the court as to when it could be

put ready and he, at that stage, refused to resile

from the position that he needed it adjourned off

until another week.

Their Honours, having heard all submissions,

at that stage, then retired and came back and

delivered the judgment that Your Honour has read. At that stage, having refused the application for the adjournment, counsel for the appellant then

stands up and says, "Look, in those circumstances,

could it be stood down until 2.15 to enable

inquiries to be made about whether or not counsel

might be able to be obtained with a view to

commencing the proceeding tomorrow morning?" In my

submission, the basis upon which the bench then
refused that application was that they considered
that the conduct by the appellant amounted - these
are my words and not their's, Your Honour - but

effectively, to an abuse of process; that they were

having applications put to them which constituted
humbug and when asked what was the minimum time

they could have the case ready by, they were then

prepared to backtrack from that when they got a

result, by standing firm, that they did not expect.

I think that Their Honours were entitled to infer that there was not good faith on the part of

the appellant in getting this matter attended to in the earliest period of time. I think they may have also inferred, Your Honour - and it is a matter for

Your Honour - that given the nature of that

submission that it then could be made ready for

tomorrow by adjourning it to 2.15 and then, with

that view, that it really countermanded much of

what had been said in the earlier submission, that

this had not been able to be got ready over a

number of weeks.

Your Honour, of course before the application

for special leave to be successful, the appellant
is going to be required to satisfy the requirements
of section 35A of the Judiciary Act and, in my

Sali 35 26/2/93

respectful submission, this is a decision which

does not satisfy any of those three requirements,

in that it was a decision made by Their Honours on

the day, on the basis of inferences that were drawn

by them at the time and in those circumstances, in

my submission, there is no element of public

interest or, certainly not a resolution of judicial

differences and neither, in my respectful submission, is it in the interests of the administration of justice and, therefore,

Your Honour, in my submission, it would be a

further impediment to the applicant ultimately

being given special leave to appeal to this Court.

Your Honour, further, in my respectful

submission, there is no material which shows

special or exceptional circumstances in respect of

this particular stay application, moving away now

from the question of the prospects of the success

of the appeal itself.

The most typical example of such cases is

where, if it could be shown that the first

respondent would be unable to repay the amount and,

in fact, the affidavit material really draws on the

opposite view and states that SPC have sufficient funds and they do not really need the money. But

there is certainly no allegation that if in fact

there was a reversal, that SPC would not be able to

repay the amount.

HIS HONOUR:  There is no question of repayment of the

amount. Let us assume that a sequestration order were made on Monday - which is a large assumption,

but let us assume that - and in due time special

leave were granted and appeal allowed; the matter

remitted to the Full Court for hearing and

determination. What would be the state of the

bankruptcy at that stage?

MR RIORDON:  In my submission, if we make the assumption

that the order was made at that time and then

special leave is then granted and, in fact, the

appeal is then heard and then granted - - -

HIS HONOUR:  The appeal is heard in due course, it is

allowed and the matter is remitted to the Full

Court of the Supreme Court of Victoria to hear and determine the appeal from Justice Ormiston.

MR RIORDON: In my submission, having made the assumption,

there may be avenues open to Mr Sali to make
application to the Federal Court in respect of the

administration of the bankrupt estate. But, in my

submission, the material before Your Honour

presently does not indicate and it is not said that

he is unable to pay. This stay application, as all

Sali 36 26/2/93

stay applications, has been based on the fact that

he says, "It is inconvenient to pay". In my

respectful submission, the evidence does not go so

far as to say that he is, in fact, bankrupt.

However, what he has said on all occasions for

the three stay applications that have been made - in fact, this is the fourth, but the two prior to the Full Court appeal - has been that he requires some time as a result of funds becoming available.

Your Honour, the Preston property that was adverted

to back in the application in April 1992 upon which
there was a basis for a three-month stay - the

applicant has never troubled himself to inform the

court about what has occurred with that sale.

There are any number of possibilities, Your Honour,

but he could come to this Court and say, "Look, the

property is about - is now about to be sold; has

been sold~ settlement is due". They are matters
that could well be special circumstances. But, in

my respectful submission, there is nothing - and,

in fact, his failure to update both his financial

information - - -

HIS HONOUR:	I understand that argument.
MR RIORDON:	Yes.  Your Honour, in terms of the application,

the payment of the costs - and it probably goes

more towards what Your Honour addressed me about a
moment ago - this is not really an application for
a stay for 15 days because what is presumably hoped

for, at least by the appellant, is that if the special leave was to be granted and then, as a result of special leave being granted, the appeal

was then to be successful, then presumably once

this stay has been granted today, the stay will

continue to apply. There would, presumably, be no less reason to continue it after special leave had

been granted. Similarly, then, if the matter was

to be continued on until the appeal was heard by

this Court, and if successful, the matter then

would presumably be remitted back to the Full Court

of the Supreme Court and they would have to hear

the substantial appeal, as it were, that relates

back to the decision of His Honour

Mr Justice Ormiston.

So, what is really contemplated by this

application is a stay for a short period in the

hope that the stays can then progress further on.

Your Honour, unless the appellant is prepared to

come to the Court and say that he will be bankrupt,

in the sense - I suppose with the proposition

Your Honour put to me, I will have to attack the

assumption because, in my respectful submission,

there is just no basis upon which, given the

material that is before you, he would be able to

Sali 37 26/2/93

say that he is unable to pay and therefore will be

sequestrated.	He does not come before this
Court - - -

HIS HONOUR:  ..... available act of bankruptcy and an

existing debt and non-payment. One does not need

much more in order to found a sequestration order,

does one?

MR RIORDON:  No, not to found one, Your Honour, but the fact

is that if it is within his hands, if he has the

capacity to pay the debt, the thrust of my

submission is, if he goes bankrupt, Your Honour, he

goes bankrupt of his own choice.

HIS HONOUR:	Yes, I understand that.
MR RIORDON:	He chooses not to pay it.  That really is,

respectfully, the thrust of my submission, that, on

his own material, he is in a position where it is a

matter for him as to whether or not he goes

bankrupt and it should not be a matter, if he

chooses to do so, that he therefore is entitled to

the indulgence of this Court that justifies special

and exceptional circumstances. Of course, as I

have already indicated to Your Honour, these are
amounts which the applicant has known that he has

had to pay for well over 12 months now. This is

not a position where - - -

HIS HONOUR:  Yes, I do not think you need to emphasize that.

The real problem is there is 15 days to go. That

is really not a matter ..... ;it is a question of

what happens at the end of 15 days.

MR RIORDON:  I do not want to be guilty of repetition,

Your Honour. I can only say I think that - open to

the fact that 15 days really represents more than

that, Your Honour, for the stay.

HIS HONOUR: That is a matter for the Full Bench of this

Court when it considers the application for special

leave. If special leave were granted, then it

would be a matter for that bench to consider

whether or not there should be a stay, pending the

hearing.

MR RIORDON:  Yes, that is so, Your Honour. It is difficult

to imagine that at that stage - Your Honour having

decided that at this stage there were sufficient

grounds, without the special leave even being

granted, one would imagine he would stand in a
stronger position, Your Honour, at that point in
time, given the fact that a stay had already been

granted.

Sali 38 26/2/93

Your Honour, the final matter that I would

like to raise with Your Honour is a reference back

to the decision of His Honour Mr Justice Marks in

which he indicates the prospects.	When he deals
with the appeal, His Honour said:

The prima facie tenuousness of the appeal is

only mentioned as confirming in some minor way my impression that the appellant does not want this appeal to go on, because its

determination will bring to an end the

undertaking extracted from the respondent not

to pursue the application for sequestration

which I have mentioned.

In my respectful submission, it would be ironic if

the decision of the Full Court of the Supreme

Court, which intended to bring a stop to what they

perceived to be delaying tactics, was really to be

used as a springboard by the appellant to delay it,

certainly until the special leave application and

possibly well beyond what was ever conceded at that

time, Your Honour. If Your Honour pleases.

HIS HONOUR:  Yes. Thank you, Mr Riordon. Yes, Mr Cawthorn?

MR CAWTHORN:  If Your Honour pleases. I hand to Your Honour

an outline of the submissions that I have prepared

and invite Your Honour to read them.

HIS HONOUR:	Yes.
MR CAWTHORN:	Your Honour, there is really no evidence that

my client is or threatening to take any imminent

steps to execute on the judgment for costs. In my

submission, for that reason, there is no warrant to

interfere with rights it has. If there was an

imminent threat of interference, then one would

expect that to be the subject of an application.

HIS HONOUR:  I suppose what you say is that that illustrates

that the subject-matter of the application for

special leave is not in jeopardy and does not need

to be preserved by the exercise of this

extraordinary jurisdiction?

MR CAWTHORN:  No, there is no indication that moneys, if

they were paid to my client, would be

irrecoverable. There is no evidence at all in that

respect. Really, there is no evidence of the
present circumstances of Mr Sali and if one assumes

his present circumstances are what prevailed in the

middle of last year, then he does have assets to

pay his debts and he ought to pay them. This

application really comes down to a very short

point:  he wants the luxury of a buoyant market to

realize his assets so that he can pay his creditors

Sali 39 26/2/93

and that is really not something that ought be

entertained by a court in any circumstances. He

gives no explanation as to why he has not taken

steps to pay the costs of my client, and my client

has been out of its money, which is indemnifying it

for costs of a trial in which it was joined in
respect of a potential contingent obligation - I

will not say why, Your Honour - but it was a second defendant to proceedings based on one allegation in

the defence of the defendant for whom Mr Riordon

acts.

If that element of defence was successful, then there was a liability said to be passed on to

solicitors who had acted. Mr Justice Ormiston

correctly found that there was no basis on which

that defence might succeed and therefore the claim
against the solicitor ought be dismissed.

Your Honour, I will not develop my argument which I have made in the written submissions unless

Your Honour wished me to.

HIS HONOUR:  No, I do not think there is any need for you to

do so, Mr Cawthorn. There is one question though:

your client's costs have been taxed, have they?

MR CAWTHORN:  Yes, and there is no evidence before the Court

but the amount is substantially less than the first

respondent's.

HIS HONOUR:	Yes.
MR CAWTHORN:	Your Honour, there is one other thing,

perhaps, and that is that the affidavit that was
before the Full Court on 30 November - I do not

think Your Honour has read that. It has not been

put into evidence. That is the affidavit that

Mr Justice Marks referred to. I have a photocopy

of that if it would assist Your Honour.

HIS HONOUR:	Is this the affidavit of Egon Fice?
MR CAWTHORN:	No, it is an affidavit of Heather Jane

Hibbert. Your Honour will recall that

Mr Justice Marks - and my learned friend,
Mr Thomas, referred at the top of page 54 of the application book to an affidavit received on behalf

of the second respondent.	Your Honour, that
affidavit -

HIS HONOUR:  Are you able to identify that affidavit? Is it

one of the exhibits to the material on the file?

MR CAWTHORN:  It is an affidavit of 27 November. I do not

believe it is on the file. It should be. It

should be in the application book, clearly, but it

Sali 40 26/2/93

is not. That needs to be rectified before the

special leave application. But if Your Honour is

prepared to read that - I can say very briefly what

it says. It adds one matter that is not referred

to at page 54 and that is, that -

HIS HONOUR:  I suppose it is a question of whether or not

Mr Thomas has any objection to my taking notice of it. You are on the horns of a dilemma, Mr Thomas;

either I find out what happened before the Full

Court or I do not.

MR THOMAS:  I would like to say no, Your Honour, but it has been referred to. I mean, my submission is that,

for the reasons I have indicated to Your Honour

before, it in fact does not answer the crucial

questions as to whether counsel would have been

available.

HIS HONOUR:  Its relevance is one question. The question is

whether or not I should receive it, at least in the

form in which it is offered which, I take it, is by

being read from the bar table.

MR THOMAS:	Yes, and in all fairness I cannot object to it.
HIS HONOUR:	Yes.
MR CAWTHORN:	Your Honour, I will not read the whole

affidavit. There is really only one paragraph. It

is only a two-paragraph affidavit.	The deponent,
who is a solicitor, says:

On 27 November 1992, I spoke to four

barristers' clerks regarding the availability

of Queens Council to appear on an appeal to

the Full Court of the Supreme Court of

Victoria on 30 November 1992.	I was advised
as follows -

and then she says of the clerk she spoke to and

which of the counsel they had available, in terms

of the number available, without identifying the

persons. I refer Your Honour to the affidavit

because there was a suggestion made by my learned

friend that there was no reference as to the, if I can put it this way, the competence of the counsel to present an appeal of this nature, and the

affidavit refers to appearance "on an appeal to the

Full Court", whereas the passage that was referred

to from the reasons of Mr Justice Marks might be
thought to have referred only to availability of

senior counsel. So, it was availability to appear

on an appeal that was inquired of, and that was the

evidence that was before the Full Court on 30

November. If Your Honour pleases. For those

Sali 41 26/2/93

reasons, in. my submission, the application ought be

dismissed with costs.

HIS HONOUR:	Yes, Mr Cawthorn.	Mr Thomas?
MR THOMAS:	Can I address that last point, Your Honour?	My

submission is that the affidavit does not take us

that far. While counsel might be available, that,

in my submission, does not join directly with the

issue about the right to representation by

competent counsel and it is certainly not a
reflection on Queen's Counsel but in the context of

competent, in the sense of being able to have

become aware of the matter and have worked it up.

In my submission, on the little evidence that is

before Your Honour, the matter was not a matter

that could easily be adequately prepared in the

space of a weekend and even Mr Justice Marks

indicated that.

Secondly, Your Honour, the point about the 2.15 adjournment: in my respectful submission, while I do not cavil with the way my friend put the

fact that the application for the adjournment until

after the luncheon break came late on the day of

the 30th, as it were, I would say that at the time

that application was made the appeal had ~ot been
struck out and, clearly, what was being put to the
court was if the matter must go on, "If we are
stuck with this position in these difficult

circumstances, then please simply grant an

adjournment so that we can at least bat on", as the
saying might go, "the following day, no matter

what." Obviously, that would be the worst position

available to the applicant at that time, but it

would certainly have prevented the appeal being

struck out which was, in fact, the catastrophic

disaster that occurred.

Finally, Your Honour, in relation to the question about whether this falls within the rules

does. There are some authorities dealing with the for special leave, in my respectful submission, it	issue of procedural fairness and the issue of
adjournments and the role of trial judges in this
matter but, in my respectful submission, there is not a large body of law in relation to that. It is
clearly an important issue of public interest as to
the way in which the courts administer themselves and the way justice is administered. That, in my
respectful submission, would bring it within those
rules in relation to special leave applications.
Unless there is something else, Your Honour - - -?

HIS HONOUR:  There is something else, Mr Thomas. What is it

that you are seeking to preserve by way of your

rights in this application?

Sali	42	26/2/93
MR THOMAS:	Can I answer it this way, Your Honour?	If a

stay is not granted, then the procedure on Monday

before the Federal Court will continue. As

Your Honour has pointed out, there will be very

little impediment unless the court, of its own

discretion, I suspect, takes action to stay. There

will be very little impediment to a sequestration

of the applicant's estate. If that occurs, then
his ability to prosecute the special leave

application becomes, as I understand it, subject to

the actions and the wishes of the trustee. He has

no right in that matter. But, moreover, the effect

of it must be that his assets are immediately

seized. He would at that time cease to be, as I

understand it, qualified to continue practising in

Victoria. He would lose his practice and those

other assets, title would pass to the Official

Receiver. As Your Honour has indicated - - -

HIS HONOUR:  What, he would lose his practising certificate,

would he?

MR THOMAS:	Yes, as I understand it, Your Honour.
HIS HONOUR:	What effects that result?
MR THOMAS:	As I understand it, he is still in partnership

with my instructing solicitor.	The result of that
would be a dismembering of that partnership.	The
effects, obviously, are catastrophic on those
circumstances.

HIS HONOUR:	Do you mean there would be a right to dissolve the partnership if one becomes bankrupt?
MR THOMAS:	Yes.
HIS HONOUR:	That does not mean that it is going to be

dissolved, does it?

MR THOMAS:  No, certainly, but if he is unable to continue

to practise, then he is not entitled to practise as

a partner.

HIS HONOUR:  Why would he not be entitled to practice? Are

there no bankrupt solicitors in Victoria?

MR THOMAS:  As I understand it. I may be wrong on that

point, Your Honour. But, certainly, as I

understand it, that would be the case.

HIS HONOUR:  That may be your understanding but it is not

conveyed to me.

MR THOMAS:  Yes. Well, I cannot put it any higher than

that, Your Honour. I must admit I have not checked

that point. Certainly, the effect of it would be

Sali 26/2/93

that his assets are seized and that must have a

direct impact upon his ability to practise, in a

practical sense, if nothing else. The question

would be whether he can continue to practise as a
principal if bankrupt. Certainly, as an employee I

do not think there is a difficulty but there is

certainly in other jurisdictions, and I thought

Victoria was one, but I cannot put it any

higher -

HIS HONOUR:  Yes.

MR THOMAS:  But that is the effect. My submission is that

despite what my friend said, if, at the end of the
special leave application, and if that then were

successful and the matter was remitted back to the

Victorian Supreme Court and the appeal was upheld,

at that time the ability to unscramble that mess is

not something that is at all clear cut and,

certainly, by that stage, assets will have been

dissipated, seized by the trustee, the secured

creditors will have moved in, I suspect. At that

stage it is not a matter where we can say that

there is a right to appeal to the Bankruptcy Court

to have the matter put back to square one because

unless the trustee somehow or other comes to an

accommodation and proceeds no further with that

estate - the administration of the estate - then it

will have been administered and the debts will have been called in to be paid. At that stage it is not

possible to reverse the clock and, certainly, there

will have had to have been some adjustment of his

practising and the practice that is involved.

So, the application is to preserve that

position and to preserve those assets from that

procedure. If the Court pleases.

HIS HONOUR:  Thank you, Mr Thomas.

This is an application for an order staying

proceedings on a judgment pronounced by

Mr Justice Ormiston in the Supreme Court of ordered to pay the costs of the present

respondents.

The costs of the first respondent have been

taxed and allowed and were the subject-matter of a

bankruptcy notice and of a petition for a

sequestration order. The applicant seeks to have

the stay granted in the light of the listing of the desires to have the stay in order to preclude the prospect of the making of a sequestration order on
sequestration order petition before the Federal

that petition. It is said that, if a sequestration

Sali 44 26/2/93

order is made, the applicant's asset position will

be substantially prejudiced.

The appeal from the judgment of

Mr Justice Ormiston to the Appeal Division of the

Supreme Court of Victoria was dismissed. The

matter was called on for hearing in the course of

the endeavour of that Court to ensure that its

lists were kept more up to date, an exercise which

has been described in an affidavit as "the Spring

offensive".

It appears from the affidavits that the

hearing date for the appeal was advanced from the
date which was earlier expected, namely, the

beginning of 1993, to 30 November 1992, and that

the advancing of that date occasioned some

difficulty to the applicant in the securing of a

counsel of his choice to argue that appeal.

When the matter was called on for hearing, the

counsel then appearing for the applicant sought an

adjournment but that application was refused. The
adjournment, as it was sought at first, was for a

period of 7 days. The application was subsequently

amended or, more accurately, an additional

application was made after the first application

was rejected. The Court was invited to adjourn the

application until after lunch-time on 30 November.

That application was also refused. Thereupon

counsel withdrew and, the appeal being called on,

it was dismissed.

An application has been lodged for special

leave to appeal to this Court from the dismissal of
the appeal by the Appeal Division and against the

Appeal Division's refusal of an adjournment. It

is said that there has been a denial of natural

justice.

One of the matters which is always taken into

account in the granting or refusal of an

application for a stay is whether or not there is a

substantial prospect of special leave being

granted. In this case, the applicant encountered

some difficulty because the question of the

prospect of success depends to no small extent upon the material that was before the Appeal Division on

30 November. The material presently before me and,

indeed, the material contained in the application

book on which the proceedings for special leave

will be determined do not contain the material that

was before the Appeal Division on 30 November. It

is difficult, in those circumstances, to formulate

any view as to the prospects of success of the

application.

Sali 45 26/2/93

However, I do not base my decision in this

matter upon the absence of that material. Rather, I turn to consider the question whether or not the

jurisdiction to grant a stay should be exercised in

this case: is it necessary to preserve the subject-

matter of the litigation? In answering that

question, it is necessary to identify what the

subject-matter of the litigation is. The subject

of the litigation is the right of the applicant to
appeal to the Appeal Division of the Supreme Court

of Victoria.

It seems to me that whether or not a stay is

granted in respect of the enforcement of the costs order, that right of appeal does not stand in need of any preservation. Whether or not a stay order

is made, the application for special leave can be

considered and an appeal can be heard and

determined. If a stay is refused, there will be no

embarrassment to the making of any appropriate
order if the applicant should succeed either on the
application for special leave to appeal or on the
appeal. It therefore appears to me that the
application is not one which attracts the operation
of the jurisdiction to grant a stay.

Although that will be the basis of the

decision which I propose to make in this matter, I
should indicate that, in my view, the application

is misconceived for another reason. The real

substance of the application which the applicant
seeks to make is to preserve the assets which he

has against the depredations of a sequestration

order. He seeks to do that on the grounds that the

making of a sequestration order may, as it were, be
made prematurely if, in the result, the application

for special leave to appeal to this Court succeeds

and the appeal, which follows, also succeeds.

That is a submission which seems to me to be

more appropriately made to the Court which is to

hear the application for a sequestration order.

That Court is the court which is responsible for

adjusting the rights as between the petitioner and

the judgment debtor. The preservation of assets

and the interests of the judgment debtor - in the

light of the circumstances (which can no doubt be

outlined to that Court) relating to the proceedings

pending in this Court - are matters which that Court can appropriately take into account. No doubt, in the course of deciding whether or not to

grant an adjournment, if such an application is

made, that Court can consider the length of time

which is involved - in this case, 15 days - before

the application for special leave will come on for

hearing and will be determined by this Court.

Sali 46 26/2/93

It can also consider the question of the

efforts, if any, which have been made to realize

assets in an orderly fashion to meet the debts of

the judgment debtor and a need, perhaps, of any

security to be given in respect of any adjournment,

if an adjournment were to be granted. Those are

matters which are appropriately matters for

consideration by the judge constituting the Federal

Court. They are not matters, however, which are

related specifically to the subject-matter of the

litigation which is presently pending in this

Court.

In those circumstances, I propose to dismiss

the application.

MR CAWTHORN:	I seek the costs of the application.
MR RIORDON:	I seek the costs of the application.
HIS HONOUR:	Mr Thomas?
MR THOMAS:	I cannot say anything, Your Honour.
HIS HONOUR:	The application is dismissed with costs.

AT 12.40 PM THE MATTER WAS ADJOURNED SINE DIE

Sali 26/2/93