Shaw v Crichton

[1998] HCATrans 472

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S101 of 1998

B e t w e e n -

LEILA SHAW

Applicant

and

JOHN CRICHTON and
NEIL CRICHTON

Respondent

Application for a stay

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 15 SEPTEMBER 1998, AT 9.30 AM

Copyright in the High Court of Australia

MR T. SHAW:   Your Honour, I believe that although this is a bankruptcy matter which has come this far ‑ ‑ ‑

HIS HONOUR:   We are just taking the appearances at the moment.  What is your position, Mr Shaw, you want to appear on behalf of your parents?

MR SHAW:   I am appearing on behalf of my mother, if it please the Court.

HIS HONOUR:   You have no right to appear.  You seek leave to appear on behalf of your parents, do you?

MR SHAW:   Yes.  I said, "if it please the Court".

HIS HONOUR:   Your mother or your father or both?

MR SHAW:   My mother, who is sitting there.  Her name is Lily Shaw.

HIS HONOUR:   I will ask what the others think about this.

MR M.K. CONDON:   If the Court please, I appear for the respondents, Mr and Mr Crichton.  (instructed by Phillip Bushby International)

HIS HONOUR:   What is their involvement in this?

MR CONDON:   They were the petitioning creditors.

HIS HONOUR:   You have no further standing in the matter.

MR CONDON:   Your Honour, an appeal has been brought against them, special leave has been sought against them and they are being ‑ ‑ ‑

HIS HONOUR:   Yes, I know.  I understand why you are here today.

MR CONDON:   They have been brought before the court on a number of occasions and were listed in the summons.

HIS HONOUR:   Yes, but you are not the appropriate party.

MR CONDON:   No, maybe the Official Trustee, your Honour.

HIS HONOUR:   Nobody else.  Am I right in thinking that - perhaps I had better ask Mr Parker about this.  Yes, Mr Parker.

MR P. PARKER:   I appear on behalf of the Official Trustee in Bankruptcy, your Honour.  (of Kemp Strang Solicitors)

HIS HONOUR:   Have you been joined in this application for special leave?

MR PARKER:   We have not, your Honour, but we have been served with the papers, although I note that Mr Condon is here on behalf of the respondents.  Mr Condon has been ‑ ‑ ‑

HIS HONOUR:   Were you a party in the Federal Court proceedings?

MR PARKER:   No, we were not.  Perhaps I can indicate, Mr Condon has been briefed by the Official Trustee on previous applications and if he is not to be proceeded with being heard today, the Official Trustee would actually brief Mr Condon to appear on its behalf.

HIS HONOUR:   Yes, I see.  Now, am I right in thinking, Mr Condon, that Justice Branson made a sequestration order on 23 October 1997?

MR CONDON:   That is correct, your Honour.

HIS HONOUR:   That there was no application for a stay of that order?

MR CONDON:   That is incorrect.  There was an application before Justice Tamblin, such application being made in November of last year and being unsuccessful.

HIS HONOUR:   No, no, but that would be too late.

MR CONDON:   Yes.

HIS HONOUR:   There was no application made at the time of the making of the order before its entry - to stay its entry.

MR CONDON:   That is correct, your Honour.

HIS HONOUR:   What happened before Mr Justice Tamberlin?

MR CONDON:   A stay was sought by the current applicant and her husband, such stay being against the bankruptcy order, pending the appeal to the Full Court and his Honour dismissed that application with costs.  Then, if I can complete the chronology, your Honour, thereupon an appeal was brought to the Full Court.  That appeal was dismissed with costs. 

HIS HONOUR:   Yes, on 9 July 1998.

MR CONDON:   That is correct, your Honour.  An application was brought the week before last before Justice Madgwick exercising the jurisdiction of the Full Court for a stay pending the application ‑ ‑ ‑

HIS HONOUR:   Stay of what?

MR CONDON:   It is expressed in the orders, somewhat curiously, to be a stay of a bankruptcy order.

HIS HONOUR:   The Full Court dismissed an appeal against an order of Justice Branson for sequestration.

MR CONDON:   Yes, that is why I say "somewhat curiously", your Honour.

HIS HONOUR:   It is misconceived or it was misconceived.  Then there is an application for special leave here against the decision of the Full Court dismissing the appeal against the sequestration order made by Justice Branson.

MR CONDON:   That is correct, your Honour.  In that application, Mr John Crichton and Mr Neil Crichton, being the judgment creditors, are purportedly joined as respondents.

HIS HONOUR:   Yes.  They are not competent ‑ ‑ ‑

MR CONDON:   That is why I said "purportedly", your Honour.

HIS HONOUR:   All right.

MR CONDON:   But returning to Mr Shaw's position, we have no objection to Mr Shaw speaking on behalf of his mother, if she gives that authority, your Honour.

HIS HONOUR:   All right.  Do you have any objection, Mr Parker?

MR PARKER:   On the same basis, your Honour.

HIS HONOUR:   Now, the application here this morning is a summons dated 8 September 1998 which seeks an order that a stay be granted on the sequestration order.  Is that right, Mr Shaw?

MR SHAW:   Yes.  Your Honour, I believe that you are peripherally related to past events which have some bearing on this matter so I would like to ask would it not be preferable, from the point of view of impartiality, fairness ‑ ‑ ‑

HIS HONOUR:   Are you applying for me to disqualify myself?

MR SHAW:   Yes, your Honour.

HIS HONOUR:   What do you say about that, gentlemen?  On what grounds, may I ask?

MR SHAW:   On the fact that you were sitting on the Bench of the High Court to hear a special leave application in the past where probate costs were awarded which have become the subject of this bankruptcy matter.

HIS HONOUR:   And?

MR SHAW:   And because we challenge the validity of that debt, there is always the possibility that you may take personal offence to the fact that we are challenging a debt that was originally authorised by you.

HIS HONOUR:   It was not authorised by me.  The Court made an order dismissing an application for special leave.

MR SHAW:   But you played a hand in authorising that.

HIS HONOUR:   Yes, very well.  Well, gentlemen, there seems to be, I suppose, some substance in that.  It is all very unfortunate.  It means ‑ ‑ ‑

MR CONDON:   It is not a great problem for me, but I think it would be better ‑ ‑ ‑

HIS HONOUR:   It does not embarrass me, but if you make the application ‑ you make the application, it has to be ruled on.  You cannot make the application and then say you do not make it.  You make it?

MR SHAW:   Yes, I do.

HIS HONOUR:   All right.  There seems to be something that agitates this matter ‑ ‑ ‑

MR CONDON:   Your Honour, we oppose the application if it means a delay in hearing the matter today, your Honour.

HIS HONOUR:   Well, it will.

MR CONDON:   In that case, we oppose the application, your Honour, and we oppose it on this basis ‑ ‑ ‑

HIS HONOUR:   But how are you prejudiced?

MR CONDON:   Incurring further legal costs, your Honour, when there is no prospect of those costs being paid and, your Honour, the order made by the High Court with which you were a member was made when Mr Levitt, who then appeared for the applicant, withdrew the application for special leave, I am instructed, without any hearing - no, I am sorry, I withdraw that, your Honour.

HIS HONOUR:   I have no recollection of it, no recollection whatever.

MR CONDON:   I withdraw that.  I am told that is incorrect.  If your Honour has no recollection ‑ ‑ ‑

HIS HONOUR:   Anyhow, this application is made and it is a question of perceptions, I suppose.

MR CONDON:   Your Honour, there is no reasonable grounds for apprehending bias on your Honour's part in making an order for costs some two years ago.

HIS HONOUR:   Yes.  I would have to rule on that, and that would waste more time, I think.  Let me ask you:  what do you seek to achieve by this application, Mr Shaw, today's application?

MR SHAW:   Your Honour, I do not seek to make the application today until the question of ‑ ‑ ‑

HIS HONOUR:   No, I mean this particular summons.  What would you seek to achieve by it?

MR SHAW:   Your Honour, I do not intend to answer that question until the point of what we should do about possible bias is cleared up.

HIS HONOUR:   Yes, well I do not propose to sit, but I am asking you, as a matter of courtesy to the Court, to tell me what you intend to achieve by this summons.

MR SHAW:   You do not propose to sit?

HIS HONOUR:   No.

MR SHAW:   As a matter of courtesy ‑ ‑ ‑

HIS HONOUR:   The Court is extremely busy, Mr Shaw.  It has many matters; it only has seven Justices; any two or three Justices sit on leave applications.

MR SHAW:   Yes.

HIS HONOUR:   It is a question of arranging the Court's business, which is a very difficult matter.  It is a national court of appeal, it is the highest Court in the country, it has many responsibilities and if you do not wish to tell me, well do not.  What do you seek to achieve by this summons, rather than getting on with your special leave application?

MR SHAW:   Only to get the Court's recognition that it is right and proper to block the sequestration order until my special leave application is heard.

HIS HONOUR:   The sequestration order was made over a year ago, was it not?

MR SHAW:   Yes.

HIS HONOUR:   What would be the effect of undoing it now?

MR SHAW:   Your Honour, I would let the document stand on its own and it is up to the Court to decide whether or not to hear it.

HIS HONOUR:   I will adjourn this application to a date to be fixed.  I will reserve the question of costs of today.  We will adjourn.

AT 9.38 AM THE MATTER WAS CONCLUDED