Taylor, Ex Parte Patterson S165/2000 - [2000] HCATrans 735

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S165 of 2000

In the matter of –
An application for Writs of Certiorari, Habeas Corpus and Prohibition, against SENATOR THE HONOURABLE KAY CHRISTINE LESLEY PATTERSON, PARLIAMENTARY SECRETARY TO THE MINISTER FOR FOREIGN AFFAIRS AND PARLIAMENTARY SECRETARY TO THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

Ex parte –
GRAHAM ERNEST TAYLOR
Applicant/Prosecutor

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 DECEMBER 2000, AT 10.17 AM

_________________________

MR P. Le G. BRERETON, SC: May it please the Court, I appear with my learned friend, MR D.P.M. ASH, for the prosecutor. (instructed by Teakle Ormsby Conn)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth: May it please the Court, I appear for the respondent, with my learned friends, MR S.J. GAGELER, SC, and MR R.P.L. LANCASTER. (instructed by Australian Government Solicitor)

MR D.R. WILLIAMS, QC, Attorney‑General of the Commonwealth: May it please the Court, I appear as intervener. I appear with MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth, MR S.J. GAGELER, SC and MR R.P.L. LANCASTER. (instructed by Australian Government Solicitor)

McHUGH J: On the constitutional point as of right or are you seeking leave to intervene in respect of the other issues?

MR WILLIAMS: I am appearing here as of right.

McHUGH J: That is so under a constitutional point, but do you have a right to intervene generally?

MR WILLIAMS: The intervention is only on the constitutional point. If it please the Court, it has been agreed that as intervener I will address first before the respondent.

GLEESON CJ: Thank you, Mr Attorney. Yes, Mr Brereton.

MR BRERETON: May it please the Court. Although it involves a departure from the sequence of the order nisi and that of our written submissions and ultimately from the different sequence adopted in our friend’s submissions, I propose to address the

issues in this sequence: first, that the prosecutor is not amenable to visa cancellation under section 501 of the Migration Act because he is neither immigrant nor alien.

KIRBY J: That is the first matter that the respondent deals with?

MR BRERETON: It is, your Honour.

KIRBY J: If that were dealt with and determined in your favour, there would be no need to determine any of the other matters, is that correct?

MR BRERETON: That is so, your Honour, and it would also have the consequence that that would be a final determination in the prosecutor’s favour which would avoid the potential for any further proceedings, which would not necessarily be the case under other grounds.

KIRBY J: Yes, I suppose that is a ‑ ‑ ‑

MR BRERETON: If he is not an immigrant and if he is not an alien then ‑ ‑ ‑

KIRBY J: There was no warrant to remove him from the Australian community.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] HCATrans 735
Decision Date: 5 December 2000

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by Mr. Taylor, following a decision of the Full Court of the Federal Court of Australia. The dispute arose from an application made by Mr. Patterson to the Federal Court seeking to set aside a notice of intention to present a petition for the winding up of a company, which had been issued by Mr. Taylor.

The High Court was required to determine whether the Federal Court had erred in its interpretation and application of the *Corporations Act 2001* (Cth) concerning the validity of a statutory demand and the circumstances under which such a demand could be set aside. Specifically, the court considered the proper approach to applications to set aside statutory demands where there is a genuine dispute about the existence of the debt.

The High Court, in its reasons, emphasised the importance of the statutory scheme governing winding up by statutory demand, noting that it is a summary remedy. The court affirmed that a genuine dispute about the debt is a sufficient ground to set aside a statutory demand, provided that the dispute is substantial and not merely a technical or vexatious objection. The court clarified that the onus is on the applicant seeking to set aside the demand to demonstrate the existence of a genuine dispute, and that the court's role is not to resolve the dispute but to determine if one genuinely exists.

The High Court granted special leave to appeal, but ultimately dismissed the appeal, upholding the decision of the Federal Court.

Orders