Sutton v Zullo

[1999] HCATrans 53

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B3 of 1999

B e t w e e n -

JOHN PATRICK SUTTON

Applicant

and

ZULLO ENTERPRISES PTY LTD,
RAEFOLD PTY LTD and YAZD PTY LTD

Respondents

Application by respondents that the application be struck out

Application by trustee for substitution as applicnt

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 12 MARCH 1999, AT 11.00 AM

Copyright in the High Court of Australia

MR A.T MATTHEWS:   If your Honour pleases, I appear for the respondents to the special leave application who are applicants on a summons filed 5 February 1999.  (instructed by William R Wilson & Associates)

MR A.J.H. MORRIS, QC:   If it please your Honour, I appear for Mr Clout who seeks to be substituted as applicant.  I also have instructions to the extent necessary to appear for Mr Sutton in his capacity as the applicant and for the solicitor’s firm against whom Mr Matthews seeks an order for costs.  (instructed by Barwicks Wisewoulds)

MR MATTHEWS:   Your Honour, I read the summons filed 5 February 1999; the affidavit of Craig Mitchell Hall, filed the same day; the application for special to appeal, filed 12 January 1999; my clients’ entry of appearance filed 1 February 1999 and I seek leave to read and file a further affidavit of Mr Hall, sworn 11 March 1999.  That was provided yesterday afternoon.

HIS HONOUR:   Is there any problem about the further affidavit, Mr Morris?

MR MORRIS:   No, there is not, your Honour.

HIS HONOUR:   You have leave.

MR MATTHEWS:   Thank you, your Honour.  Could I hand a copy to your Honour’s associate.

HIS HONOUR:   Thank you.  I will just read this, if you will give me a moment, please.  Yes, Mr Morris.

MR MORRIS:   Thank you, your Honour.  Your Honour, my material is summarised in the outline of submissions which I did have faxed to your Honour’s chambers earlier this morning but I do not whether your Honour has seen that yet and, anyway - - -

HIS HONOUR:   No, I have not seen yours, Mr Morris.  I have read Mr Matthews.

MR MORRIS:   I will hand that up and there is a further very short affidavit of David Lewis Clout which I would also seek leave to read and file.

MR MATTHEWS:   There is no objection to that being read.

HIS HONOUR:   Thank you.  Yes, Mr Matthews.

MR MATTHEWS:   Your Honour, I have had a short opportunity to read my learned friend’s outline.  The summons filed on behalf of Mr Clout seeking to be substituted, in my respectfully submission, as much as concedes the matter raised in the correspondence in early February with Mr Sutton’s solicitors and the matter raised by the summons filed on 5 February. 

The respondents submit that this is not merely a matter of a mistake in nomenclature such that cases similar to Bridge Shipping would apply or a misnomer.  I accept that the application was filed in the name of Mr Sutton personally by mistake but the mistake does not rectify the difficulty in which Mr Sutton finds himself in that the proceedings are an irreparable nullity.  He has no standing whatsoever to have commenced the application.  If the instructions came from Mr Clout and if it was he who wished to seek special leave of this Court to appeal the Court of Appeal’s judgment, then he is the only person, obviously, who has standing to have done that.  It is my submission, your Honour, that the proceedings must be struck out as such a nullity because they constitute an abuse of process.

HIS HONOUR:   Mr Matthews, does the bankruptcy date from 25 September 1998?  That is the date he signed the authority.

MR MATTHEWS:   By the relation-back provision of the Bankruptcy Act Rules it will, but the property of the bankrupt does not vest until he files his petition in, I think it is on 6 December, a week or 10 days before the Court of Appeal judgment.  In September he appointed Mr Clout controlling trustee.

HIS HONOUR:   But the actual bankruptcy, the status in a bankrupt does not come into existence until December, is it, a date in December?

MR MATTHEWS:   Yes, your Honour; 6 December, I think it is, the date he files his petition.  Sorry, 3 December 1998.  So, the right of action which he had was maintained by him until that date.  Then, given that it is a claim by him, the obiter comments of the majority in Cummings v Claremont Petroleum, at the page that I have identified in the outline, mean that that right of action has vested in the trustee as and from that date, and all consequent rights to take proceedings.

The matter is curable, as I have submitted at the end of the outline. Mr Clout gave a notice of intention to proceed. The notice itself, as your Honour will see from the material, does not indicate whether it was given under section 60(2) of the Bankruptcy Act or section 60(4) but that really does not matter for today’s purpose. He gave a notice but it was a time after the application was filed and, of course, the notice of intention must be given to the opposing parties precedent to, in my submission, the steps being taken in the relevant proceeding.

So, if the present application is struck out, dismissed as a nullity, then Mr Clout, as trustee of the estate of Mr Sutton, has given a notice of intention to proceed on 9 February and he can file a further application for special leave to appeal in his proper capacity and seek a dispensation with the time prescribed for such applications to be filed.

HIS HONOUR:   Can he do that? I wondered about that, in view of section 60(3) of the Bankruptcy Act.

MR MATTHEWS:   Your Honour, subsections (2) and (3) are distinct, in my submission.  They give discrete rights, as it were.  Subsection (2), in my submission, is the right of the trustee to elect to take forward proceedings, rights which are vested in him, whereas subsection (3) gives a right to another party to proceedings, to which a bankrupt had been a party, gives that party the right to, as it were, put the trustee to an election.

HIS HONOUR:   What was the date of the filing of the application for special leave?

MR MATTHEWS:   It was the twenty-eighth day, I think, your Honour, 12 January 1999.  The election was communicated to my solicitors and signed, I think, on 9 February.

HIS HONOUR:   So, it was within 28 days.

MR MATTHEWS:   No, your Honour.  The 28 days in subsection (3) is an arbitrary time within which a trustee might make an election when he is put to that election by an opposing party and if he does not make his election within 28 days after having been put on written notice, then he is deemed to have abandoned the right of action; whereas, the requirement for a trustee who wishes to, as it were, take up the cudgels on behalf of the bankrupt is the requirement in subsection (2), to give a notice to make an “election, in writing, to prosecute or discontinue”.  The two subsections, in my submission, stand alone.

HIS HONOUR:   Let us have a look at subsection (2).  Have a look at subsection (5):  “action means any civil proceeding”.

MR MATTHEWS:   Yes, your Honour.

HIS HONOUR:   Does that extend to an application for special leave?

MR MATTHEWS:   The authorities say it includes a right of appeal.

HIS HONOUR:   Well, let us assume it does.  It looks as if it does, does it not?

MR MATTHEWS:   Yes, your Honour.

HIS HONOUR:   So, the application for special leave is an action commenced by a person.  He does not subsequently become bankrupt, so he is not within subsection (2), is he?

MR MATTHEWS:   Your Honour, the right of appeal flows from the action which Mr Sutton did commence in the District Court.

HIS HONOUR:   Well, I am too sure about that, you see. I am not saying you are wrong. It just occurs to me that that action has been concluded or that action may have been concluded and that what is the relevant action for the purposes of section 60 may be the application for special leave. It might even place you in a stronger position because if that is right, if it is right, then he does not fall within subsection (2) because he did not become bankrupt subsequent to the filing of the application for special leave. He was already bankrupt and he is not, therefore, within subsection (2). It rather looks as if he may not be within subsection (3).

MR MORRIS:   If it assists your Honour, we concede that we do not fall within subsection (2) or subsection (3).

HIS HONOUR:   That might be a valuable concession for you, Mr Matthews.

MR MATTHEWS:   Yes, your Honour.

HIS HONOUR:   I have read your submissions.  I do not want to cut you off.  You continue if you wish.

MR MATTHEWS:   I am in a fashion attempting to answer, in a summary way some of the things contained in - - -

HIS HONOUR:   Yes.  I will not restrict your right of reply.

MR MATTHEWS:   Thank you, your Honour.  My learned friend’s submission proceed, it seems, from my having read them on the basis that

the Rules of the High Court apply so as to permit your Honour to substitute, enlarge time and the like.  Applications for special leave have been treated, it seems, by this Court as special creatures to which the Rules of the Court do not apply and one looks to the power of the Court granted by Order 69A and then the inherent jurisdiction.  Justice Brennan, as he then was, in Jennings Construction v Burgundy Royale and then Justice Toohey in Bahr v Nicolay and the line of cases that follow those makes that plain:  unless there is an inherent power – sorry, absent a specific power under Order 69A, then the Court’s hands are really tied, in relation to interlocutory applications and orders made in relation to special leave applications, to the inherent jurisdiction if and when it arises.

HIS HONOUR:   We have no inherent jurisdiction, though, to convert a nullity into a matter of substance, if it is a nullity.

MR MATTHEWS:   That is the ultimate point of my submissions, your Honour.  It does not leave Mr Clout without an avenue.

HIS HONOUR:   I am not too sure about that, but if that is the consequence, it is the consequence.

MR MATTHEWS:   He can still file an application but seek the specific order that Order 69A rule 3(2) permits him to seek, namely a dispensation with the requirement that his leave application be filed within 28 days of the pronouncement of the judgment in respect of which leave is sought to appeal.  That is dealt with in the normal course in the special leave process.

Your Honour, I cannot take the matter of my submissions any further.

HIS HONOUR:   Thank you, Mr Matthews.  Mr Morris, I wonder if you can tell me a little bit – I have not read your written submissions yet.

MR MORRIS:   I understand that, your Honour.

HIS HONOUR:   But why is not the application for special leave a nullity?

MR MORRIS:   Your Honour, because, for this reason:  the application for special leave was made on the instructions of Mr Clout.  Mr Voll’s affidavit makes that perfectly clear.  All that occurred was that the wrong name was inserted in the documents, and that is a contingency for which High Court Rules make express provision, in my submission, in Order 16 rule 3:

Where a proceeding has been commenced in the name of the wrong person as plaintiff, or it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Justice, if satisfied that –

(a) it has been so commenced through a bona fide mistake; and

(b) it is necessary for the determination of the real matter in dispute so to do,

may order another person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as are just.

It refers, of course, to “a plaintiff” rather than “an applicant” but the rules provide in Order 1 rule 5 that:

“plaintiff” includes a person seeking relief against another person by a form of proceeding in a Court –

so, it is not limited to a plaintiff in a civil action, it is anyone who commences a proceeding seeking relief.

HIS HONOUR:   Yes, thank you, Mr Morris.

MR MORRIS:   Your Honour, my submission is that it is necessary to distinguish two situations.  If Mr Sutton had given instructions to solicitors and commenced these proceedings as a frolic of his own, then it would be, as Mr Matthews submits, a nullity.  Mr Sutton has no standing to invoke this Court’s jurisdiction by way of an application for special leave.  That is not what occurred in this case.  What Mr Voll’s affidavit says and it is, of course, unchallenged, is that Mr Clout, the trustee, is the one who gave instructions to commence the proceedings and it was through the solicitor’s error – and I might say, your Honour, a perfectly understandable error although I suppose that is no excuse, but it is an error that would could well imagine solicitors taking, that when they are bringing an application for special leave against a decision of the Court of Appeal, the person in whose name the application should be made is the person who lost at first instance.  Well, that was the error in any event, but it was not a case of Mr Sutton going off on a frolic of his own, it was a case of the solicitors have instructions from Mr Clout and simply inserting the wrong name in the documents.  That, with respect, is exactly the situation that Order 16 rule 3 is intended to cover.

HIS HONOUR:   Mr Morris, by the time that the judgment of the Court of Appeal was given, Mr Sutton was bankrupt, is that right?

MR MORRIS:   Yes.

HIS HONOUR:   What is the consequence of that?  All of his property then vests in the trustee.

MR MORRIS:   In the trustee.  That would include - - -

HIS HONOUR:   That would include any right that he might have to appeal.  I think that is what Claremont - - -

MR MORRIS:   That is undoubtedly so, including a right to apply for special leave to appeal.

HIS HONOUR:   Yes.  So, that vests in the trustee.

MR MORRIS:   Yes.  It is accepted that Mr Sutton had no standing in his own name to apply for special leave or to take any other course.

HIS HONOUR:   Your submission is that there is uncontradicted evidence that this was a mistake.

MR MORRIS:   That this was a mistake and, perhaps more importantly, that the mistake was one of simply putting the wrong person in the documents when the instructions came from Mr Clout.

HIS HONOUR:   Is there anything in your written outline that you – because I have not read it.  Do I need to read it or is that the essence of ‑ ‑ ‑

MR MORRIS:   Your Honour, can I say – and I guess I am trying to be of assistance to your Honour – that, with respect, would seem to be the strongest way to put it, that it can be covered by Order 16 rule 3.  My fall‑back position is that there are other rules of the Court that can only be invoked, including Order 16 rule 4, relating to misjoinder and non-joinder, and Order 29 rule 12 – these are summarised on page 4 of the outline, in paragraph 4 – dealing with the general power to make amendments as necessary in the interests of justice.  But, really, I do not want to waste your Honour’s time by going through provisions that are tangentially relevant when this case falls, in my submission, squarely within Order 16 rule 3 as proceedings commenced in the name of the wrong person.

Your Honour, there is also the issue of the application by Mr Matthews for costs against the solicitors personally.  I know Mr Matthews has not addressed your Honour orally on that, but it is, with respect, an entirely misconceived application.  It is apparently put on the basis of a suspicion expressed by his instructing solicitor in correspondence that these proceedings are being conducted on a speculative basis.  That was answered in correspondence before this application was served and an affidavit has been put in by the solicitors denying that the matter is being funded - or being conducted speculatively. 

Indeed, for reasons which one can only speculate about, the further affidavit that Mr Matthews read by leave this morning, the affidavit of Craig Mitchell Hall, in fact exhibits a report from the trustee, Mr Clout, to the creditors explaining the processes which he was going through in order to fund the matter.  I do not know whether it is necessary for your Honour to turn that up but what is said is that:

It is my intention to pursue this legal action and attempt to obtain insurance litigation funding from an insurer.  This means, in simple terms, that an insurer is approached to fund the legal action and in return is entitled to a percentage of the win (if successful).  I am also covered in the event there is an adverse costs order.  I will not apply for this funding until the outcome of the Court of Appeal hearing. This matter will be discussed in more detail at the creditors meeting.

Mr Sutton had indicated that he will assist in the running of the litigation until its conclusion.  Creditors should note that if litigation funding is not obtained, the litigation will cease unless creditors are willing to fund me to prosecute the action.

HIS HONOUR:   Mr Morris, does that mean that there is going to be recourse to one of those new companies that is being established to fund litigation?  I have seen - - -

MR MORRIS:   I am aware of such companies.  Indeed, in the course of my practice I have been approached by at least one of them to become involved in their schemes, but I inferred that what is being talked about in that report is a more traditional arrangement where an insurance company provides funds, in effect, as a form of insurance; that they provide the money against the risk of the application not failing.  Now, the reason I refer to that is simply that the only material put forward on Mr Matthews’ side to seek costs against the solicitors is the suggestion that the matter is being conducted on a speculative basis.  In my submission, as a matter of law, that would be no reason in itself to mulct solicitors with costs anyway but it is no more than a suspicion and it is suspicion which has been repudiated in correspondence; denied in sworn testimony and which should never have arisen because Mr Hall was well aware that there was no suggestion at any time of speculating the action.  Indeed, Mr Clout made it plain that unless he was funded either by an insurance company or by creditors, he would not be going ahead with the action.

So, really, your Honour, no basis exists or ever existed for bringing the solicitors here.  I would invite your Honour to consider that the application for costs against the solicitors was an application made in terrorem and one which should result in the solicitors getting their costs of this application, regardless of what happens otherwise.

HIS HONOUR:   Mr Morris, the fact that an insurance company or the creditors may fund the litigation may not provide much comfort to Mr Matthews’ clients in the event that he wins and seeks to recover costs.

MR MORRIS:   No, but the fact that Mr Clout is conducting the proceedings provides total comfort because Mr Clout is now personally exposed to those costs.

HIS HONOUR:   That is right, as a natural person with personal exposure, he has no right of escaping or no way of escaping any order.

MR MORRIS:   None at all, and one would imagine – there is nothing in the evidence to show this – that any funding arrangement that does exist has been structured in such a way as to ensure that Mr Clout’s personal exposure is covered.

Your Honour, that is really all I can say.  As I say, other arguments are developed in the written outline but I very much put those as our fall‑back position.  Thank you, your Honour.

HIS HONOUR:   Mr Matthews, you are at large, so far as I am concerned because you may have been cut off.

MR MATTHEWS:   Sometimes larger than I would like.  Your Honour, my learned friend did not read the second sentence of the paragraph preceding that which he read to you in full from Mr Clout’s report which is the important part of the exhibit and the reason for it being exhibited to Mr Hall’s affidavit.  The preceding paragraph to that which Mr Morris read is as follows:

It should be noted that in attempting to resolve this matter, and due to his limited financial resources Mr Sutton had not pursued the litigation aggressively.  Since the date of my appointment –

and that is as controlling trustee –

I have continued to instruct the former solicitors on a speculative basis in respect of this action. 

Now, my clients are, of course, creditors of the estate as well.  They are told that, in the context of a creditors’ meeting when they are given a copy of the report, there was a foundation for Mr Hall’s inquiries of the solicitors as to the basis of funding and whether any person would be standing behind Mr Sutton, as a bankrupt, so that any prejudice occasioned to them would be likely lessened, that an order for costs would not be hollow.  It is not until the application to strike out the special leave application was brought that some information was forthcoming as to that matter and that Mr Clout eventually has put his hand up and said, “No, it’s really me.  I gave the instructions.  I want to be substituted.”

Your Honour, whether the court heading was inserted as a mistake or not does not cure the defect.  If Mr Sutton has no standing, then a proceeding commenced in his name, signed as it is required to be under Order 69A by the solicitors for the applicant, then, as some of the older cases say, it is more than a mere irregularity and the continued prosecution of it amounts to an abuse of process.  That is why your Honour has the inherent power to strike it out.

HIS HONOUR:   What did you refer to?  Order 69, did you say?

MR MATTHEWS:   Order 69A requires an application to be signed by the applicant or legal representative.

HIS HONOUR:   What do the rules say about pleadings in the High Court?  I know we do not exercise original jurisdiction very often but the rules - - -

MR MATTHEWS:   They are not dissimilar to the Rules of the Supreme Court of Queensland or the Rules of the High Court in England.

HIS HONOUR:   But do they have to be signed, as in New South Wales, for example, by the litigant?

MR MATTHEWS:   I do not think they do.  I think that the equivalent provision to that in the Queensland rules where if they are settled by counsel, counsels’ names should appear on them.

HIS HONOUR:   Let us have a look at it and we will find it.  What about a writ in the High Court.  Is that simply signed by the solicitors?  What I am getting at is I am trying to understand how the initiating procedures for special leave applications differ, if they do, from the procedures with respect to other initiating processes in the High Court.

MR MATTHEWS:   Your Honour, “a proceeding” is not defined to include an application for special leave.  It is separately defined by Order 69A rule 1.

HIS HONOUR:   Yes, but that may not be an answer.  What I am trying to ascertain is what room is there for the operation of Order 16 rule 3 if, in fact, its effect is to be diminished or, indeed, entirely nullified, as it were, in a special leave application because of Order 69A rule - - -?

MR MATTHEWS:   Rule 1 defines the application and - - -

HIS HONOUR:   Where is the provision for signing it?

MR MATTHEWS:   It flows from rule 2(1):

An application shall be in the form numbered 61 in the First Schedule.

And that form provides for “the signature of the applicant for leave or his legal representatives”.

HIS HONOUR:   “Or his legal representatives”?

MR MATTHEWS:   Solicitors for the - - -

HIS HONOUR:   The solicitors here were solicitors for both - as we now know, were at all material times, solicitors for both; both the trustee and the Mr Sutton.

MR MATTHEWS:   Yes, your Honour. 

HIS HONOUR:   Mr Sutton and the trustee have both signed the application – he has signed that application, he would say, I suppose, in his capacity as solicitor for the trustee and for the bankrupt to whatever extent is necessary.  “Signed:  solicitor or applicant.”

MR MATTHEWS:   It is merely signed “solicitors for the applicant”.

HIS HONOUR:   Well, Mr Morris says, and he says the material supports him in saying that the true applicant was the trustee.

MR MATTHEWS:   I accept that.  I cannot challenge that, that Mr Clout had given the instructions.

HIS HONOUR:   Why cannot Order 16 rule 3 operate?  I do not see at the moment why a requirement for a signature by either the solicitor or the applicant when, in fact, the solicitor for the true applicant has signed it – why Order 16 rule 3 should not be allowed to operate in that circumstance.

MR MATTHEWS:   Your Honour, the fundamental submission I make is that Order 16 rule 3 and Order 29 and the other rules of this Court applicable to proceedings do not apply to applications for special leave; that the Court’s power in relation to applications for special leave is limited to those powers contained in Order 69A and in the inherent jurisdiction if and when it arises.  So much is said by Justice - - -

HIS HONOUR:   Why should I not have an inherent jurisdiction to correct something that, on the evidence, was plainly a mistake?

MR MATTHEWS:   Your Honour would have an inherent jurisdiction to correct an irregularity, I concede, but your Honour does not have, with respect, inherent power to correct what is and has been from its inception a nullity.

HIS HONOUR:   It is only a nullity if it is something more than a misnomer, is it not?

MR MATTHEWS:   You see, your Honour, section 161(1) of the Bankruptcy Act provides that the trustee may sue and be sued by his official name which, by virtue of section 161(2) is “trustee of the property of (blank) a bankrupt”.

HIS HONOUR:   Mr Morris accepts that the title or the name of the applicant is plainly wrongly stated and you would accept that to be correctly stated it would need to be the trustee of the property, I would think – is that right, Mr Morris?

MR MORRIS:   Yes, your Honour. 

MR MATTHEWS:   It would be “David Lewis Clout, as trustee of the property of John Patrick Sutton, a bankrupt.”

HIS HONOUR:   Mr Morris accepts that that is the way in which it should be done and it should have been done but he says it was not done that way by mistake.

MR MATTHEWS:   I accept it was done by mistake but the difficulty is that the rules in relation to correcting a misnomer apply where, for instance, a proceeding is commenced in the name of ABC Pty Limited, which itself is a legal entity that has standing to commence proceedings.  In fact, by a mistake, the proceedings should have been commenced in the name of ABD Pty Limited, itself an entity with standing.  Here Sutton, personally, has had since at least 3 December 1998 no standing whatsoever to have commenced the application.

HIS HONOUR:   But Mr Morris says he accepts that; that the application was really commenced by the trustee but it was put in the wrong name.  The proceeding was placed in the wrong name.

MR MATTHEWS:   And, your Honour, the trustee has, by the concession my learned friend has property made, not complied with either section 60(2) or (3) prior to the application being filed.

HIS HONOUR:   Your argument turns, does it, to some extent upon the definition of “proceeding” in the rules, is that right?

MR MATTHEWS:   Yes, your Honour.

HIS HONOUR:   Let me just have a look at that.  Is “matter” defined?

MR MATTHEWS:   No, your Honour.  In the Judiciary Act it is defined. 

HIS HONOUR:   Yes.  How is it defined in the Judiciary Act.

MR MATTHEWS:   “Matter” is defined, including:

any proceeding in a Court, whether between parties or not, and also any incidental proceeding in a cause or matter –

HIS HONOUR:   Why is this not a “matter”?  I would have thought, even without the definition in the Judiciary Act, this is a matter.

MR MATTHEWS:   Your Honour, in my submission it is an application, not a matter, and that is why, even though the justice of the case seemed to make it almost inevitable that an order for security for costs be given in Bahr v Nicolay, why Justice Toohey said, “No, I can’t do this.  I don’t have power.  It is not a proceeding or a matter; an appeal is.”

HIS HONOUR:   Let me find that.

MR MATTHEWS:   Bahr v Nicolay is case 1 in the bundle of authorities.

HIS HONOUR:   And what are you referring me to there?  This is a single Justice decision of Justice Toohey.

MR MATTHEWS:   Yes, your Honour.

HIS HONOUR:   Let me just read the facts.  Does this case hold any more than that an application for special leave was not an appeal?  Does it hold that an application for special leave is not a matter?

MR MATTHEWS:   No, it does not.  It followed Justice Brennan’s decision in Jennings Construction v Burgundy Royale that an application for special leave to appeal is not an appeal within the definition of that term in section 2 of the Judiciary Act.

HIS HONOUR:   I do not think anybody is asserting it is.  The question is, is it a matter, not whether it is an appeal.

MR MATTHEWS:   Your Honour, I can only argue from the statement of principle at page 493.

HIS HONOUR:   Let me just look at that.

MR MATTHEWS:   Where his Honour said:

Certainly there is no express power to order security for costs in the case of an application for special leave to appeal.  Nor is such a power to be implied from anything in the Judiciary Act.  If there is an inherent power, it must be because such a power is incidental and necessary to the exercise of jurisdiction conferred on the High Court or incidental and necessary to some power conferred.  I can find nothing in the Judiciary Act or in the High Court Rules from which it might be inferred that a power to order security for the costs of an application for special leave to appeal is incidental and necessary to the exercise of some other power conferred on the Court.  Inherent power, if it exists at all in the present case, must exist because it is incidental and necessary to the exercise of jurisdiction vested in the Court.

HIS HONOUR:   Has any other Justice of the Court said that?

MR MATTHEWS:   This case has been followed since 1987 almost to a T, your Honour.

HIS HONOUR:   There were no orders for security for costs in applications for ‑ ‑ ‑

MR MATTHEWS:   Special leave applications, no, none whatsoever.

HIS HONOUR:   Are there other reported cases?

MR MATTHEWS:   Yes, your Honour.

HIS HONOUR:   Anyway, I do not think it helps your argument here, frankly.  It does not say anything about what a matter is.

MR MATTHEWS:   Your Honour, if you turn over to the House of Lords judgment in Smurthwaite v Hannay – it is number 9.

HIS HONOUR:   Yes.

MR MATTHEWS:   Your Honour, if an application for special leave is a matter then there is no reason why orders for security for costs, stays under the rules, amendments and the like, the exercise of all other powers the rules give to proceedings, would not apply to a special leave application and the cases all suggest, with respect, that special leave applications are not, in fact, inter partes proceedings.  There is no requirement for a respondent to appear.

HIS HONOUR:   There is no requirement for a defendant to appear in an action either.

MR MATTHEWS:   No, but consequences follow in an action if a defendant does not appear, such that judgment can be entered against that defendant.  In an application for special leave, the applicant still must convince the Court that the matter warrants the attention of the Court so as to grant leave.

HIS HONOUR:   You have used the word “matter” yourself.

MR MATTHEWS:   It had become a matter once it becomes an appeal when leave is granted.

HIS HONOUR:   If an application for special leave is not a matter, how would you characterise it in legal terms.

MR MATTHEWS:   Simply as an application.  Whether it is a matter or not it is more than a mere irregularity.  That is, as I say, the principal point of my submission.  Lord Russell at page 506 of Smurthwaite v Hannay, in the last full paragraph on the page - Lord Ashbourne agreed with Lord Russell’s speech.  His Honour says:

A further point was taken at the Bar on the part of the respondents, namely, that the joinder of the plaintiffs in a way not authorized by Order XVI. was a mere irregularity, and that the appellants came too late to take advantage of it.  This objection is not, in my judgment, well founded.  In my judgment, such joinder of plaintiffs is more than an irregularity – - -

HIS HONOUR:   There is something different, though, is there not, between adding parties and correcting a name?

MR MATTHEWS:   It is the constitution of a suit as to parties in a way not authorised and his Lordship concludes with ‑ ‑ ‑

HIS HONOUR:   Has this case been applied recently in Australia?  It is a 19th century case.  There is, perhaps, a more generous approach taken to these sorts of matters these days.

MR MATTHEWS:   It was followed by Sir Isaac Isaacs in 1914 in Plowman v Palmer.

HIS HONOUR:   They were separate and distinct actions, were they not?  Is that the ratio?

MR MATTHEWS:   Yes, your Honour, it is.

HIS HONOUR:   If they were separate and distinct actions there might be all sorts of different issues arising as between the different parties.  I do not know whether that helps a great deal, frankly.  Is there anything in Order 69A, apart from its reference to what is, in fact, form 61 that precludes this?

MR MATTHEWS:   That precludes your Honour applying the other rules?

HIS HONOUR:   Yes.  Well, Order 16 rule 3 specifically.

MR MATTHEWS:   I have to say that I cannot point your Honour to a specific rule of Order 69A which expressly precludes application of the other rules.

HIS HONOUR:   By implication, is there anything?

MR MATTHEWS:   Your Honour, by implication, Order 69A is a code as to the means by which litigants seek to have appeals brought before the Court.

HIS HONOUR:   Mr Matthews, it strikes one as being a bit unusual that to correct a name, a mistake in the name of a party - in every proceeding except an application for special leave, it just strikes me, I will tell you frankly, as fairly unlikely because, in principle, why should that be so?  Why should an application for special leave be singled out and treated differently from any other proceeding or matter in the High Court?

MR MATTHEWS:   Your Honour, that is the question one poses in one’s mind when one reads cases like Jennings v Burgundy Royale and Bahr v Nicolay.

HIS HONOUR:   But they do not deal with this point, do they?

MR MATTHEWS:   They do not deal specifically with this point.

HIS HONOUR:   They do not purport to restrict the meaning or the ordinary understanding, perhaps, of the meaning of “matter”.

MR MATTHEWS:   Your Honour, it is not in the bundle or my outline, but there is an annotation to the rules which refers to a case of Collins (Hass) v The Queen (1975) 133 CLR 120 and this is a passage which was adopted by Justice Brennan in Jennings Construction and a few of the other cases.

HIS HONOUR:   Yes.

MR MATTHEWS:   It was in the joint judgment of Sir Garfield Barwick and Justices Stephen, Mason and Jacobs when their Honours were describing the nature of an application for special leave, they said:

an application for leave or special leave to appeal is not in the ordinary course of litigation.  The practice of this Court in granting or refusing leave or special leave makes this clear.  First, until the grant of leave or special leave, there are no proceedings inter partes before the Court.  This is so even in a case in which the application for leave or special leave is opposed.  Whilst notice of intention to move the Court for leave or special leave may be given in writing, which is filed in the Registry of the Court, the motion for leave or special leave is made orally in court.  Notwithstanding that the notice of intention to apply is served on persons who may be interested to oppose the application, the intending applicant is not bound to move the Court.  When the motion is moved, the applicant for such leave or special leave is no more than an applicant desiring to obtain the Court’s leave to commence proceedings in the Court.  Secondly, the application must exhibit features which attract the Court’s discretion in granting leave or special leave.  There is no right to leave or special leave.  In the latter case, the matter must involve questions of general public importance.  The special nature of the application must be maintained in contradistinction to proceedings inter partes brought as of right or pursuant to the Court’s leave. 

Your Honour, it was that statement of principle that your Honour might suspect now caused me to, in my outline, ensure that your Honour was satisfied you had inherent jurisdiction to deal with this application.  That passage is the best way I can answer your Honour’s hypothetical question to me.  I might say it does seem strange but Order 69A is, it is submitted, a code of practice and procedure for special leave applications.  The only way that the Court has power to make orders outside the scope of that order is by invoking the inherent jurisdiction if the circumstances and justice of the case so warrants.

Even if I am wrong in all that, and the other rules of court, such as Order 16 and Order 29 apply, they apply in circumstances where one has an action or matter properly constituted on foot.  Because the manner in which this application is constituted, because the applicant, by my learned friend’s concession, has no standing whatever, then the manner in which the application was initially constituted and filed is a nullity.

HIS HONOUR:   That is the question.  Was the matter constituted that way?  The matter was identified in that way.

MR MATTHEWS:   Yes.  Given that my client can enter an appearance or not and whether my clients appear on the moving of the application for leave or not does not matter.  It is whether the Court would, on the face of the application as filed, consider it to have been an application for leave ‑ ‑ ‑

HIS HONOUR:   But that passage that you read to me, was there a statement to the effect that the application was not made until it was made orally in court?

MR MATTHEWS:   Yes, it is merely a notification of intention.

HIS HONOUR:   So that, if that is so, the passage really places very little significance upon the document anyway, the initiating document?

MR MATTHEWS:   Well, your Honour, that passage in 1975 has to be put in the context of the amendments to the rules ‑ ‑ ‑

HIS HONOUR:   Yes.

MR MATTHEWS:    ‑ ‑ ‑ which, now, do not require a motion to be filed and given that a motion used to have to be filed, it would have to be moved orally.  Now, in fact, an applicant can elect not to be heard orally at all.

HIS HONOUR:   Yes, have the hearing on the papers.

MR MATTHEWS:   Order 69A has been amended to, as it were, simplify the procedure and not require an applicant for special leave to move orally.

HIS HONOUR:   Yes.

MR MATTHEWS:   But the passage emphasises the very special nature that a special leave application is under the rules.

HIS HONOUR:   Well, we all know that it is a very special application.  We are all very well aware of that, Mr Matthews.

MR MATTHEWS:   Yes, your Honour.  In reply in relation to the application for the non‑party costs order, the suggestion in the report, in my submission, gave a foundation for the suspicion which was sought to be elucidated in the correspondence and it was not until matters moved down the track the last few weeks that my client’s summons had been filed that some answers were forthcoming and Mr Clout now, with the affidavit that has been read and filed by leave by my learned friend this morning, has, as it were, put his hand up.  He will be first in line ‑ ‑ ‑

HIS HONOUR:   I do not think there was anything wrong with your solicitor making that application, Mr Matthews.  I do not think any criticism can fairly be levelled in the circumstances that your solicitor is making that application.

MR MATTHEWS:   Your Honour, you would have seen from my outline that when Mr Clout’s summons was received I have provided for an alternative order that is sought.

HIS HONOUR:   Yes.

MR MATTHEWS:   Your Honour, I have looked very hard for other cases, unreported – I know there are reported cases, but unreported judgments of single Justices of this Court in relation to the point and I could not find any others.

HIS HONOUR:   No.  I think I should give Mr Morris an opportunity to deal with this last matter but if you want to say anything about it after he has, I will give you that opportunity.

MR MATTHEWS:   Yes, your Honour.

HIS HONOUR:   It is not the cost matter, it is the suggestion that Order 69A is a code and Mr Matthews’ reliance upon that passage in the – which case was it?

MR MORRIS:   Collins (Hass) v The Queen.

HIS HONOUR:   Yes.

MR MORRIS:   I have the same annotation.  It refers to it as Collins (Hass).

HIS HONOUR:   133 CLR, is it?

MR MATTHEWS:   Yes, your Honour.

MR MORRIS:   That is so.

HIS HONOUR:   We will get it down, but you can go ahead, Mr Morris.

MR MORRIS:   Your Honour, what I was going to say about that case is that it really is old law in the sense that the rules have been modified.  Their Honours were speaking of a situation where one filed a notice of motion as a warning to the other side of what you intended to apply to the Court for and the application was made from the Bar table.  As your Honour has observed, the entire procedure has changed.  Order 69A now provides for an application rather than a notice of motion and that application is the process by which the Court’s indulgence is sought, or the Court’s leave is sought and, as your Honour observed, there is not even a requirement for an appearance in Court.  The Court can act on that ‑ ‑ ‑

HIS HONOUR:   It was interesting in the passage that Mr Matthews read out at one point, I think, I think the Court referred to the application as “a matter”, so there is difficulty with language. There is reserved before the Court now a decision in a case in which “matter” as it is used in the Constitution is very much in contention.

MR MORRIS:   Yes.

HIS HONOUR:   What the meaning of it is and how it raises a question, for example, how flexible, perhaps, the term “matter” is when it is used in the Constitution, Chapter III.

MR MORRIS:   My submission about that is really threefold, your Honour.  The first is the word “matter” is the broadest word that the legal profession uses to describe any form of process or proceeding before a court and it is the word deliberately chosen by both the legislature in drafting legislation and by the courts in drafting their rules, to be all encompassing.

HIS HONOUR:   Barristers are very fond of the expression, “I am in a very important matter at the moment.”

MR MORRIS:   Yes, yes, indeed.

HIS HONOUR:   Whether it is a chamber application or an appeal to the High Court.

MR MORRIS:   Exactly, or a luncheon engagement.  So that is my first submission that “matter” is the coverall expression ordinarily used to describe anything, any process that comes before the Court.  My second submission is that the definition in the Judiciary Act, in the absence of any relevant definition in the High Court Rules, is, at least, some guidance and, again, that is drawn in absolutely plenary terms when it talks in section 2 of the Judiciary Act about:

“Matter” includes any proceeding in a Court, whether between parties or not, and also any incidental proceeding in a cause or matter.

HIS HONOUR:   The definition section of the Judiciary Act?

MR MORRIS:   Yes, section 2, your Honour.

HIS HONOUR:   Wait a moment.  Do the rules pick up the definition of “matter” as it is in the Judiciary Act.

MR MORRIS:   No, your Honour, the rules do not.  There is no provision in the High Court Rules, for example, saying that where a word is defined in the Judiciary Act it has the same meaning in the High Court Rules.

HIS HONOUR:   To what Act are the rules made pursuant?  To the Judiciary Act?

MR MORRIS:   I believe the High Court Act.

HIS HONOUR:   High Court Act but not the Judiciary Act?

MR MORRIS:   That is my recollection but I may be wrong.

HIS HONOUR:   I do not know whether that is right.  I am not saying you are wrong.

MR MORRIS:   Predictably, your Honour is right and I am wrong.  Section 86 of the Judiciary Act creates the rule-making power.

HIS HONOUR:   Why would it not have the same meaning in the expression “matter” when it is used in the rules as it has in the Act?

MR MORRIS:   Under which the rules are made?  Indeed, your Honour, and I would  ‑ ‑ ‑

HIS HONOUR:   The rules cannot amend the Act.

MR MORRIS:   Rules cannot amend the Act and the stream can run no higher than its source.  Your Honour, I was going to say as a third submission on that question of whether or not this is a matter, that really the cases of Jennings and Bahr v Nicolay are at the remotest point of relevance to this thing because in each case ‑ ‑ ‑

HIS HONOUR:   I do not think they are relevant, Mr Morris.

MR MORRIS:   Perhaps I overstate that, your Honour, but the question for the Court on each occasion was an application made under a rule saying the security for costs may be granted in respect of an appeal so the ratio was that an application for special leave is not an appeal.  The reason why I was so bold as to use the word “irrelevant” is that there is no provision in the High Court Rules granting a power to order security in respect of a matter in terms saying that in respect of a matter security for costs.

As your Honour would be aware, the power to order security comes from a variety of sources in respect of appeals.  It is statutory.  In respect of corporations it is statutory under the Corporations Law.  In respect of ordinary matters at first instance, it is inherent so, really, what Justice Brennan in the former case and Justice Toohey in the latter case had to consider was two things:  firstly, whether this was an appeal; having said no, then the next question was whether there was an inherent power and they answered that in the negative as well.  That is entirely different from the question here which is whether a rule that talks about matters includes an application for special leave.

HIS HONOUR:   Collins v The Queen was a case in which, I think, was decided before the rules permitted an application for special leave or permitted appearances by lay people in the High Court.

MR MORRIS:   I think that is right, your Honour.  Indeed, I think that rule was the last one in the country that gave counsel an exclusive right of appearance even at the exclusion of solicitors.

HIS HONOUR:   We hear a lot of applicants in person these days.

MR MORRIS:   Yes.

HIS HONOUR:   The case holds that the rule requiring the application to be made by counsel was not inimical to the provision of the Judiciary Act which provides that if a court is exercising federal jurisdiction the parties may appear personally or by barristers or solicitors.

MR MORRIS:   Yes.

HIS HONOUR:   What was the page you referred me to, Mr Matthews, in the annotation?

MR MATTHEWS:   It was the passage at page 122.

HIS HONOUR:   Thank you.

MR MATTHEWS:   Commencing, “an application for leave”.

HIS HONOUR:   Page 122.

MR MORRIS:   That is according to the annotation.

HIS HONOUR:   Yes.

MR MORRIS:   Your Honour, finally, Mr Matthews, I think, perhaps, as a fall‑back position, said that even if the application for special leave is a matter, Order 16, and particularly Order 16 rule 3, does not apply because these rules are only relevant, to use Mr Matthews’ words, “where an application is properly constituted or on foot”.  That really becomes a bit circular, your Honour, because Order 16 rule 3 talks about proceedings commenced in the name of the wrong person.

HIS HONOUR:   And it would have no application at all if the submission were categorically correct.

MR MORRIS:   Exactly, it would be a nullity.  Those are my submissions, your Honour.

HIS HONOUR:   Thank you, Mr Matthews.  Well, Mr Morris, you should deal, I think, in order first with your application for leave which was the application that you made pursuant to Order 16 Rule 3.  Is that correct?

MR MORRIS:   That is so, your Honour.

HIS HONOUR:   Among the matters with which I have to deal is a summons issued by David Lewis Clout as trustee of the property of John Patrick Sutton, a bankrupt.  By that summons, Mr Clout seeks substitution of his name as the applicant in an application for special leave which was filed in this Court on 12 January this year.

There is uncontradicted evidence before me that when the application was filed, by mistake, the solicitor for Mr Clout caused the application to name Mr Sutton as applicant.  Counsel for Mr Clout argues that, in those circumstances, he should be granted relief pursuant to Order 16 rule 3 of the Rules of the High Court by way of substitution of Mr Clout’s name for Mr Sutton’s name as applicant.  It has not been suggested that the mistake was not a bona fide mistake and it is plainly necessary, for the determination of the application, that the correct name of the applicant be identified in the documents which will be before this Court when the application is heard by a Full Court of this Court.

Counsel for the respondent to the summons argues that the application is not a proceeding within the meaning of that term where it is used in Order 16 rule 3.  “Proceeding” is defined in the rules inclusively as an “action, cause, matter and suit”.  It seems to me that an application for special leave is a matter and that Order 16 rule 3 is capable of application to an application for special leave.  I would grant leave to Mr Clout to have his name substituted and would accordingly order that the name David Lewis Clout be substituted for John Patrick Sutton so that the applicant will henceforth be – what I am looking for is the language of section 161(2).

MR MORRIS:   If I could invite your Honour to make an order in terms of paragraph 1 of the summons, that:

David Lewis Clout as trustee of the property of John Patrick Sutton, a bankrupt, be substituted as the applicant –

so that it is not just Mr Clout in his personal capacity.

HIS HONOUR:   All right.  Well, I will make an order then in terms of paragraph 1 of the summons.  Now, apart from the matter of costs, that disposes of your summons?

MR MORRIS:   It does, your Honour, yes.

HIS HONOUR:   Why should you not pay – I will deal with this matter.  Why should not Mr Clout pay the costs of that application?

MR MORRIS:   Your Honour, all I can say about that is this, that the application was brought by my learned friend’s instructing solicitors after they had been told that Mr Clout was taking over the conduct – that the proceedings should have been conducted in his name and that he was going to do so.  It was suggested that the convenient course was to resolve that problem on the hearing of the special leave application rather than bringing a separate application before a single Justice of the Court and the costs of today have been unnecessarily incurred as a second step, whereas this could all have been done at the one time without opposition.

In my submission, the most just course would be to reserve the costs of today’s proceedings to the special leave application so that if special leave is granted and the appeal goes ahead, they will form part of the costs of the appeal.  If the special leave is refused, then Mr Matthews’ client will have his costs any way.  Those are my submissions.

HIS HONOUR:   Thank you.  Mr Matthews, I do not think I need to hear you.  I am minded to make an order that the applicant pay the costs of and incidental to the summons seeking substitution and I would order accordingly.

MR MATTHEWS:   Thank you, your Honour. 

HIS HONOUR:   Now, Mr Matthews, what else do I have to deal with then?

MR MATTHEWS:   My clients’ summons was filed on the footing of there being no standing. There was no issue at the time that summons was filed on 5 February of a want of compliance by the trustee with section 60(2) or (3). That only arose subsequent - - -

HIS HONOUR:   What, exactly, are your applications?  Let me just look at them.

MR MATTHEWS:   They were to dismiss the application for special leave on the footing that the applicant had no standing to have filed the application.  We filed that on 5 February and then were told on the 9th, “We act for Mr Clout, and by the way here is his election to proceed.”  We were also told that Mr Clout would apply to be joined with Mr Sutton in the application.

MR MORRIS:   Your Honour, I might say that I feel a little confused by what Mr Matthews has said.  The summons that was served on my instructing solicitors was not one filed on 5 February, it was one dated – and it has the High Court seal on it – on 24 February 1999 when Mr Matthews’ client was well aware of the proposal to substitute Mr Clout.

MR MATTHEWS:   Your Honour, that matter is contained in the chronology; Mr Hall personally lodged the papers with the Registry of this Court, which is now the Federal Court Registry downstairs, on 5 February and the papers were then transmitted by the Brisbane Registry, who seemed to not know what to do with them, to Canberra and they were received and stamped in Canberra on the 24th and the date was inserted by the Registry in Canberra.  You will see the stamp is the Canberra Registry stamp.

HIS HONOUR:   Yes.  What happened, Mr Matthews?  I do not quite understand that.

MR MATTHEWS:   I could not either when I was told eventually what had happened, but when this Court’s Registry was part of the Supreme Court Registry, one could file documents and have them stamped and received in the Supreme Court Registry. 

HIS HONOUR:   I think that is right.  I think the Registrar of the Supreme Court held some - - -

MR MATTHEWS:   Was a District Registrar of the High Court.

HIS HONOUR:   Yes, quite.

MR MATTHEWS:   Now the District Registrar of the Federal Court is the District Registrar for the High Court.  Mr Hall lodged the papers, and - - -

HIS HONOUR:   He is Mr Morris’ - - -

MR MATTHEWS:   He is my instructing solicitor.  He personally lodged them in the registry in this building on 5 February.

HIS HONOUR:   Thinking he was lodging them with the District Registrar of the High Court.

MR MATTHEWS:   Of the High Court, yes.  And then the Registrar here actually - - -

HIS HONOUR:   Transmitted them to - - -

MR MATTHEWS:    - - - sent the papers to Canberra where they were stamped.

HIS HONOUR:   What date were they lodged?

MR MATTHEWS:   On 5 February.

HIS HONOUR:   When were they served?

MR MATTHEWS:   A copy of the documents was forwarded to my learned friend’s solicitors by fax on 10 February in response to the notice and the letter saying, “We act for” and the sealed copies were served on 5 March.

HIS HONOUR:   Why did not your instructing solicitor serve them on the solicitors for Mr Clout on the same day or the day after, perhaps, of lodgment, as lodgment of them in what he thought was the District Registry here?

MR MATTHEWS:   There was no return date.  There was nothing to serve.  The Registry here, being honest about it, just threw their hands up in the air and said, “Oh, we’ll just send all this to Canberra” and they did that.

HIS HONOUR:   Mr Matthews, there is a notation on the file that says the summons was lodged here or came here anyway on 5 February, as you say.

MR MATTHEWS:   I have a receipt from the Commonwealth of Australia for the filing fee dated 5 February and a stamp with “High Court of Australia – Filed – 5 Feb 1999 – The Registry Brisbane”.

MR MORRIS:   That is not the evidence…..

HIS HONOUR:   Why would you not have served it.  Even though there is no return date, why would you not have served it on the other side there and then to give them an opportunity, perhaps, to be involved in some selection of the date, perhaps?  I am not reproaching you.  I am merely asking the question.

MR MATTHEWS:   I can only say that the explanation is, from Mr Hall’s point of view, that he was being cautious not to serve a document requiring someone concerned to attend before a Justice of this Court in Chambers when there was no return date.

HIS HONOUR:   With blank dates.

MR MATTHEWS:   And blank times.  You can turn up some time at some place.  He indicated when he filed the documents on the 5th, that my clients would be prepared to appear as soon as was convenient before a Justice here or in Sydney or in Canberra.

HIS HONOUR:   Anyway, your submission is that at the time that the application was made, it was reasonable to make it.

MR MATTHEWS:   Yes, your Honour, on the face of the document, the application is served and in light of the concerns, given our knowledge that Mr Sutton was a bankrupt.

HIS HONOUR:   You would accept you could not press any more your claim for indemnity costs.

MR MATTHEWS:   I accept that.  We have now been told it was a mistake.  That came with Mr Voll’s affidavit two days ago, and until then there was no explanation.  So I would have to, of course, accede to your Honour dismissing my clients’ summons, but I would submit it was not unreasonable for the application to be filed at the time it was and that there is no reason that Mr Clout should not pay the costs of that application as well.

HIS HONOUR:   What do you say, Mr Morris?

MR MORRIS:   In reply, your Honour, I have to accept that what occurred on 5 February, the filing of the summons and the affidavit, was a reasonable step to take at that moment and that Mr Matthews’ clients should have the costs up to that point.  However, there was then the difficult to understand delay of 19 days.  When they got the documents back at the end of February and served them as recently as last Friday they knew that Mr Clout was seeking to take up the cudgels and it was inappropriate from that moment to persist with, to serve and to go ahead with the application.  So, in my submission, the appropriate costs order would be one confining any costs in favour of the respondents to the costs of filing the summons and supporting affidavit and costs since that time should be costs in the proceedings.

MR MATTHEWS:   Your Honour, I made a mistake, with respect, in the timing of the dates.  Mr Hall has shown me the letter from the High Court Registry in Kingston dated 1 March 1999 which enclosed three copies of the sealed summons and the listing date and time and this courtroom, in fact, and Mr Hall’s office received that on 4 March and the sealed copy was served the next day.

MR MORRIS:   Be that as it may, my submission is the same, that by that time they knew that it was inappropriate to apply to have the matter struck out and that costs incurred - - -

HIS HONOUR:   What date do you say was the date that they were apprised of what the position was?

MR MORRIS:   Your Honour, probably the most material date is 9 February.  That is four days after the summons and affidavit were lodged in the Registry when my instructing solicitors wrote saying:

We act for David Lewis Clout, the trustee of your bankrupt estate -

We are instructed that pursuant to section 60 of the Bankruptcy Act 1966 (Cth), the trustee, Mr Clout, elects to prosecute these proceedings.

Enclosed are our letters of today’s date to Mr Sutton and to the Registry of the High Court of Australia.  You will note that we have sought on behalf of our client –

and so on.  And the accompanying letter talks about Mr Clout, as it were, taking over as applicant in the proceedings.

HIS HONOUR:   Thank you.  Mr Matthews, just explain to me:  it is delivered to the Court on 5 February and it is filed.  Is that right?

MR MATTHEWS:   Yes, it is stamped, “Filed”.

HIS HONOUR:   Then Mr Morris’ instructing solicitor writes on 9 February or thereabouts, is that right?

MR MATTHEWS:   That is so.

HIS HONOUR:   There is nothing, really, that your solicitor could do at that stage to arrest the matter.  It was already put in motion, I suppose, until when?  I suppose your solicitor could have said, theoretically, “Well, in view of the letter, we don’t seek a date for the hearing of the summons and we’re going to abandon it”.

MR MATTHEWS:   Theoretically, he could have, your Honour.  If the concession that had been made by my learned friend at the outset today had been made there and then - - -

HIS HONOUR:   I am going to give you some costs.

MR MATTHEWS:   I know, your Honour, it is the matter of the times.

HIS HONOUR:   The only question is what date is the appropriate cut-off date, Mr Matthews.

MR MATTHEWS:   In my submission, there should not be a cut‑off date because my solicitor was never told, “We made a mistake.  We concede the name on the application is someone without standing.  It is a mistake.  We acted on instructions from the trustee.  We always did.”  We were told, “We act on behalf of Mr Clout.”  We will be bringing an application to the letter of 10 February to my solicitors:

We are preparing an appropriate notice of motion, to be returnable on the same day as the special leave application, by which Mr Clout will seek to be joined in the proceedings.

That was repeated on 25 February 1999.

You have previously been advised that the application for special leave was commenced under instructions from the Trustee and consequently we are preparing a notice of motion seeking to join him on the return of the special leave application.

My solicitors wrote on the 4th and inquired as to “whether Mr Clout would be prepared to meet any cost order imposed by reason of misjoinder”.  So that there was no advice that, “We’ve made a mistake”.  It was an assertion that, “We act on his behalf as well” and no suggestion that if the costs had been thrown away, as they obviously were when the application was served, that those costs would be met, the costs thrown away.  It was virtually out of my solicitor’s hands once the document was filed and transmitted, however it gets transmitted to Canberra.

HIS HONOUR:   Yes, all right.  Mr Matthews, you do not dispute that in the circumstances your summons should be dismissed?

MR MATTHEWS:   I do not dispute that, no, your Honour.

HIS HONOUR:   I dismiss the summons of the respondents.  I order that Mr Clout pay the respondents’ costs of and incidental to that summons up to and including 25 February this year.          

Now, are there any other matters?

MR MORRIS:   I suppose that leaves a little component of costs outstanding in the sense that there are the costs of - - -

HIS HONOUR:   I would make no order for costs otherwise in respect of the summons filed on behalf of Mr Matthews’ clients.  That disposes of - - -

MR MORRIS:   That is all of the costs dealt with and there are no other matters outstanding.

HIS HONOUR:   All right, thank you.

MR MATTHEWS:   Would your Honour certify for counsel?  I think we still have to do that.

HIS HONOUR:   Certify for counsel.  Why do I have to do that?

MR MATTHEWS:   It is a quirk under the relevant cost rule of the High Court Rules that in relation to interlocutory and chamber applications, the taxing officer - - -

HIS HONOUR:   You both have been very helpful to me.  I would certainly certify for costs and I am surprised that I have to.  What is the rule?

MR MATTHEWS:   I have forgotten.  I have just had a number suggested to me.  I think it is Order 71.

HIS HONOUR:   Order 71, is it, the cost rule?

MR MATTHEWS:   It is under a heading, Attendance of Counsel at Chambers.

HIS HONOUR:   It is not under rule 57?  No.

MR MATTHEWS:   Rule 62, your Honour.  They:

shall not be allowed unless the Justice or Registrar certifies it –

and I understand the practice of the - - -

HIS HONOUR:   Yes.  Well, I certify that in each of these matters it was proper for counsel to attend.

MR MATTHEWS:   Thank you, your Honour.

AT 12.35 PM THE MATTER WAS CONCLUDED