Theo v Official Trustee Bankruptcy & Ors

[2002] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B18 of 2000

B e t w e e n -

SOL THEO

Applicant

and

THE OFFICIAL TRUSTEE IN BANKRUPTCY

First Respondent

ANTHONY JAMES BENNETT and KENNETH PHILP

Second Respondents

An application for review of a taxation

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 4 APRIL 2002, AT 10.30 AM

Copyright in the High Court of Australia

MR S. THEO appeared in person.

Your Honour, if I may suggest that I have grounds on the basis of which I wish to request – I request that you disqualify yourself from hearing this case.

HIS HONOUR:   What are the grounds?  Well, let me just get Mr Derrington’s appearance first, Mr Theo.

MR THEO:   Okay.

MR R.M. DERRINGTON:   May it please your Honour, I appear on behalf of the first respondent in the action, the Official Trustee in Bankruptcy, which is the only respondent to the application.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   All right, thank you.  Yes, Mr Theo.

MR THEO:   Yes.  Your Honour, you were kind enough to attend to another case in December last year and I am of the opinion that you were biased against my credibility.  So for this reason I request that you disqualify yourself from hearing my case.

HIS HONOUR:   Mr Theo, the position is that a judge in general ‑ ‑ ‑

MR THEO:   I am sorry, I did not hear.

HIS HONOUR:   The position is that in general a judge will not hear a case if it can be shown that he is actually biased or he is what is called “apparently biased”.  Now, which do you say?  Do you say ‑ ‑ ‑

MR THEO:   Actually biased.

HIS HONOUR:   Actually biased.  All right.  Now, what is your evidence for that, Mr Theo?

MR THEO:   It is already in Court.  I have already contacted the High Court of Australia and I have put my case forward.

HIS HONOUR:   No, no, but you must make a submission to me now to tell me what is your evidence and what are your grounds for saying that I am biased.  It is not sufficient that I merely found against you, you see.  You need more than that.

MR THEO:   There is a bit of an echo, your Honour.

HIS HONOUR:   Well, you cannot hear me.  Is that better?

MR THEO:   Yes.

HIS HONOUR:   All right.  You need more than the assertion of an opinion, Mr Theo.  You have to be able to point to some actual evidence of bias.

MR THEO:   Yes.  The transcript itself speaks for itself.  I do not have a copy of the transcript.

HIS HONOUR:   Well, which part of it?

MR THEO:   I beg your pardon?

HIS HONOUR:   What part of it?

MR THEO:   From A to Z.  I am talking about the transcript of the previous case.

HIS HONOUR:   No, that is not good enough, Mr Theo.  You have to point to some particular matter.

MR THEO:   Yes.  Well, the fact of the matter is that your Honour, you did not – you were not familiar with my case at all.  You did not read my submissions and you were asking me to – at a drop of a hat to come up with my submissions.  I presumed that you had already read my submissions and, as a result, I did not resubmit them, whereas everything was in the file with the Court and even also you – with all due respect, your Honour, you asked the other side – it was not this gentleman; it was another case – you asked the other side for their opinion if the case should be heard or not.  With all due respect, your Honour, these are – these are not attributes of the honourable Court.

HIS HONOUR:   So let me understand your submission, Mr Theo.  You say that the basis of it is that I did not read all of your written material.  Is that correct?

MR THEO:   That is correct, and it was obvious that you did not and also that particular day, if you recall, I had requested for an extended – an extension of time for me to go and ‑ ‑ ‑

HIS HONOUR:   But, Mr Theo, you cannot come to this Court when a matter is listed and demand an adjournment so that you can feed a parking

meter.  You were very, very lucky that I gave your 10 minutes, extremely lucky.

MR THEO:   The Court was half an hour late.

HIS HONOUR:   No, Mr Theo, that is not right.

MR THEO:   It was.

HIS HONOUR:   Both matters were listed for the same time.

MR THEO:   No, you were late – the Court was late in hearing, and I am not lying.

HIS HONOUR:   Just be quiet, Mr Theo, for a moment.  The position was that matters were listed from a certain time and that required that you be available from that time.  The Court is not obliged to give you any adjournment to go and feed your parking meter.  Indeed, you were very lucky that I gave you 10 minutes.  So that basis of your application completely fails.  Now, what else have you got to say about that?

MR THEO:   Well, I mentioned you were not familiar with your case.

HIS HONOUR:   All right.  Well, is there anything you want to add to that?

MR THEO:   Yes.  The fact of the matter is that you were completely in the dark, if the honourable Court had jurisdiction over this case or not.

HIS HONOUR:   Is there anything else you want to say?

MR THEO:   No.

HIS HONOUR:   Thank you.  I will hear from Mr Derrington.  What is your submission about all of this, Mr Derrington?

MR DERRINGTON:   May it please your Honour, in fact, I was, if your Honour might recall, at the previous matter.

HIS HONOUR:   Yes.

MR DERRINGTON:   I appeared on behalf of the Official Trustee in Bankruptcy, although we did not ask for costs.  Your Honour, during the course of that hearing submissions were put by both parties.  Ultimately your Honour determined against the applicant, but my respectful submission is that there was nothing put by the applicant which identified any error by the taxing officer in that matter and there was nothing that would indicate to any reasonable person an apprehension of any bias at all.

HIS HONOUR:   Just remind me, Mr Derrington:  the application last time was to set aside the taxing officer’s certificate, was it?

MR DERRINGTON:   Indeed, it was, your Honour.  Can I assist your Honour by indicating that on that occasion the summons filed sought to also set aside the taxing officer’s certificate in the action which we are dealing with today, B18 of 2000, and an affidavit had been filed indicating that the applicant intended to have both matters heard.  That is why the Official Trustee turned up.

HIS HONOUR:   Yes.

MR DERRINGTON:   As it transpired, nothing was sought, so no orders were then sought against the Official Trustee, but it was a similar application and, similarly, no substantive submissions were put as to any error by this taxing officer.

HIS HONOUR:   Now, Mr Theo’s application today is an application to set aside my order, is it not?

MR THEO:   No.

MR DERRINGTON:   Can I assist your Honour?  Your Honour, this is a separate application, somewhat perhaps duplicating what was said in the first, but, as I said, that was not proceeded with.  It is simply an application to set aside the certificate of taxation or the allocatur of the taxing officer obtained by my client on an application for special leave, that is an application was made by Mr Theo for special leave from a judgment.  It failed.  The Court ordered that he pay the first respondent’s costs of that application for special leave.

HIS HONOUR:   Among the papers I have got an application signed by Mr Theo No B5 of 2002 and it is entitled “NOTICE Of APPEAL” and it says, “The appellant appeals pursuant to leave to appeal granted from the whole of the judgment” of myself in “my capacity as a Chamber Judge of the High Court of Australia given on 19.12.01”.  Have you got a copy of that document?

MR DERRINGTON:   No, I do not, your Honour.

HIS HONOUR:   Mr Theo, just have a look at this document, please, and tell me what you have done with that.  Is that the application that you really want me to hear today?

MR THEO:   No.

HIS HONOUR:   Have you got a copy of the application you want me to hear today?

MR THEO:   Yes, yes.

HIS HONOUR:   Have you got it with you now?

MR THEO:   Yes.

HIS HONOUR:   Could I see it, please?

MR THEO:   Yes.

HIS HONOUR:   Would you look at this, Mr Derrington, please, and tell me if that is the application to which you are responding?

MR DERRINGTON:   Yes, it is, may it please your Honour.

HIS HONOUR:   I do not know whether your application has reached my file, Mr Theo.

MR THEO:   I do not know.

HIS HONOUR:   Just wait a moment.

MR THEO:   It leaves a lot to be desired, does it not?

HIS HONOUR:   It does, indeed.  Just while that is being looked for, Mr Theo, the document I have just handed you, what has happened to that?  Have you filed that in the Court?

MR THEO:   Yes, it is stamped.

HIS HONOUR:   No, no, the one I gave you.

MR THEO:   Yes, it is stamped in February.

HIS HONOUR:   No, not the one you gave me, the one I gave you.

MR THEO:   Your Honour, I am referring to the one you gave to me.  I returned it.

HIS HONOUR:   Well, what has happened to that application?

MR THEO:   It is taking its course.  I gave it back to your associate.

HIS HONOUR:   Thank you.

MR DERRINGTON:   Your Honour, if it assists the Court, I have a spare copy of it.

HIS HONOUR:   Yes, but I am more concerned about the fact that it may not have reached the file, that is all, in Brisbane.  That is what worries me.

MR THEO:   I missed your comments, your Honour.

HIS HONOUR:   I am worried that it has not reached the file.  As you say, Mr Theo, that is unsatisfactory if that is the case.  Mr Theo, in what respects does your application today differ, if any, from the application that I heard in December?

MR THEO:   It is completely different.

HIS HONOUR:   Well, why is it different? 

MR THEO:   Because it is different.

HIS HONOUR:   You want the same relief, do you not?

MR THEO:   There are eight pages, your Honour, and I cannot rattle them through in a ‑ ‑ ‑

HIS HONOUR:   No, but you want the same relief, do you not?

MR THEO:   It is similar but not the same.

HIS HONOUR:   In what respects then does it differ?

MR THEO:   It is two different cases, two different circumstances.

HIS HONOUR:   Tell me what is different about your application today?

MR THEO:   With all due respect, here we go again.

HIS HONOUR:   No, no.  Mr Theo, do not fail to respond, please, to my question.  Do not just refer me to the writing.  I am asking you to tell me in what respects does your application today differ from the application that I heard in December last year.

MR THEO:   It is different because the one that you heard concerned a certain respondent.  The application for today concerns a different respondent.  So, it is different.

HIS HONOUR:   Right.  Now, Mr Theo, if I were to accede to your request not to hear this matter, it might be necessary for it to be done by a video link.  Do you understand that?

MR THEO:   That is all right.

HIS HONOUR:   Mr Theo, I cannot explain this.  Something must have happened in the Registry.  A copy of your application has not reached the file in Brisbane. 

MR THEO:   No fault of mine, as you ‑ ‑ ‑

HIS HONOUR:   No, it is certainly not your fault, Mr Theo.  Give that back to Mr Theo, please.  Mr Theo, I have decided I am going to accede to your application.

MR THEO:   Forgive me, I am not familiar with the meaning of the word “accede”.

HIS HONOUR:   I am not going to hear the matter as requested by you.

MR THEO:   Okay.

HIS HONOUR:   I will ask another Judge to hear the matter.

MR THEO:   Thank you. 

HIS HONOUR:   I cannot tell you at the moment when that will be but it will almost certainly have to be by video.

MR THEO:   That is okay.

HIS HONOUR:   By video link from Brisbane to Canberra, probably.  You will have to be ready.  It will probably be on a Friday, I am not sure.

MR THEO:   Okay.  Now, your Honour, there is another delicate – forgive me, I do not want to be rude to interrupt you.

HIS HONOUR:   No, go ahead, Mr Theo.

MR THEO:   Now, the other side have failed to give me their submissions on time and they are tendering things and they expect me – had we

proceeded today, they expected me to go speed reading, so I wanted to go on record, with your permission, if I can take these things and have them studied by myself for the actual hearing.

HIS HONOUR:   You will have plenty of time to do that now, Mr Theo, because the matter is not going to be dealt with today.

MR THEO:   Yes.  Right.  But I just wanted to put it on record that it is only today that I have been given these things.

HIS HONOUR:   I see. 

MR DERRINGTON:   Can I assist the Court?  Your Honour, a letter sent by registered post enclosing the submissions of the respondent was sent, on my instructions, on 2 April, by a letter wrongly dated the 4th, but my instructions are it was, in fact, sent on the 2nd.  In any event, Mr Theo now has them.

HIS HONOUR:   He has them now, yes.

MR DERRINGTON:   Your Honour, can I also perhaps ask your Honour if your Honour is prepared to make some directions in relation to the matter.  It may be that your Honour thinks that your Honour in the circumstances may not.

HIS HONOUR:   What sorts of directions?

MR DERRINGTON:   It is simply this, your Honour:  on the hearing of the substantive application, the attempt to set aside the allocatur will be fraught with a lot of difficulties and unless the applicant sets out in some clear manner the approach he is seeking to take, that is to say, the taxing officer’s reasons for decision is quite lengthy and very clear, in my respectful submission, but there are no submissions by the applicant as to why, on the authorities, that is an error of principle or an error of discretion, any of the long list of matters is in error.  So, it may help things for the Judge who ultimately hears the matter to understand the position if that is set out.

HIS HONOUR:   I do not know how I can deal with that, Mr Derrington.

MR DERRINGTON:   I appreciate your Honour’s position.

HIS HONOUR:   I think what you have said, if Mr Theo has attended to it, should be of benefit to him because it can only assist his case if he expresses himself clearly and directs himself particularly to each and every issue and it will be to his disadvantage, of course, if he has not done that.

MR DERRINGTON:   Thank you.  Well, he has our submissions now; he has the cases we rely on, so there is perhaps no difficulty for the future.

HIS HONOUR:   All right.  Well, the order I propose to make is this:

(1)  That the matter be adjourned to a date to be fixed but that it be heard unless otherwise ordered by video link from Brisbane to Canberra;

(2)  I would reserve the costs of today;

(3)  I certify for the appearance of counsel.

MR DERRINGTON:   Thank you, your Honour.

MR THEO:   With all due respect, no costs should be reserved against me if I lose because it is no fault of mine that this Court is not ready to hear the case.

HIS HONOUR:   Mr Theo, that will be a submission that you can make to the Judge who comes to hear it.  When I say “I reserve the costs”, it does not mean that they are reserved against you.

MR THEO:   Thank you.

HIS HONOUR:   It simply means that they will be subject to whatever order the parties can persuade the Judge who hears the case the Judge should make.

MR THEO:   Thank you.  Thank you for the clarification.

HIS HONOUR:   All right.  There is nothing further, is there?  Nothing further, Mr Derrington?

MR DERRINGTON:   No, may it please your Honour.

AT 10.48 AM THE MATTER WAS CONCLUDED