Theo v the Official Trustee in Bankruptcy and Ors B18/2000

[2001] HCATrans 671

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B9 of 1997 and 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

Applications to set aside certificates of taxation

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 19 DECEMBER 2001, AT 10.51 AM

Copyright in the High Court of Australia

MR THEO appeared in person.

MR R.M. DERRINGTON:  May it please the Court, I appear for the first respondent.  (instructed by Australian Government Solicitor)

MR. A.E. LYONS:  May it please the Court, I appear for the second respondents.  (instructed by Bennett & Philp)

HIS HONOUR:   Mr Lyons, is there an application addressed to you?

MR LYONS:   Yes, there is, your Honour.

MR DERRINGTON:   But it is not addressed to me, if I may intervene, your Honour.

HIS HONOUR:   It is not addressed to you.

MR DERRINGTON:    No, your Honour, and perhaps technically, therefore, I should seek your Honour’s leave to appear because it is not actually addressed to me.

HIS HONOUR:   Yes, I will grant you leave, Mr Derrington.

MR DERRINGTON:    Thank you, your Honour, and can I just indicate to your Honour that we appear because it transpired that there was a similar summons filed in the Registry, to which we have now entered an appearance, and with that summons was filed an affidavit by the applicant, Mr Theo, indicating his intention to incorporate both cases together, to be heard together and out of some caution we thought it appropriate then to appear ‑ ‑ ‑

HIS HONOUR:   We will sort all that out in a moment.

MR DERRINGTON:   Thank you, your Honour.

HIS HONOUR:   Mr Theo.

MR THEO:   Your Honour, the situation is that there is only one summons that was submitted for today and the only respondent to that summons is the second respondent.  The heading, as such, shows the public trustee, only because it is the heading of the case, but in real terms, the public trustee is not part of these procedures.

HIS HONOUR:   You do not seek any relief today against the first respondent, is that what you are saying?

MR THEO:    That is correct.

HIS HONOUR:   All right, just wait a moment then.  Mr Derrington, well ‑ ‑ ‑

MR DERRINGTON:    Well, in that case, your Honour, we then need not be here.

HIS HONOUR:   You might want to remain anyway.

MR DERRINGTON:    But I was going to ask you ‑ ‑ ‑

HIS HONOUR:   I will not call upon you unless something arises.

MR DERRINGTON:    Thank you, your Honour.

HIS HONOUR:   All right.  Mr Theo, you do not proceed in any way against the first respondent, it is only the second respondents today, is that right?

MR THEO:    That is correct, as far as today’s case is concerned.

HIS HONOUR:   That is the matter of B18, is that right?

MR THEO:    B18, yes, your Honour.

HIS HONOUR:   All right.  Do you understand that, Mr Lyons?

MR LYONS:   Well, your Honour, the summons that has been filed seeks relief in relation to both B18 of 2000 and B9.

HIS HONOUR:   Right.  Well, we have just heard that no relief at all was sought today against the first respondent.  Are you second respondents in both B18 and B9?

MR LYONS:   Yes, your Honour.

HIS HONOUR:   You are.  All right, Mr Theo, I must say it was my impression that you only wanted to proceed on B18 today.  Am I wrong about that?

MR THEO:    B18 and the other number that ‑ ‑ ‑

HIS HONOUR:   B9.

MR THEO:    Yes, your Honour, because the summons, as such, it was drawn to my attention by the Registry in Canberra, but I did not have time – I did submit an application for a summons for the B9, but it was short of time, so it was suggested to me that perhaps you can be kind enough in view of the fact that my affidavits, they all refer to B9 and B18 against the second respondent, be accepted as such by the honourable Court.

HIS HONOUR:   You want to proceed, if you can, on both B18 and B9, is that right?

MR THEO:    Yes, your Honour, that is correct.

HIS HONOUR:   Are you ready to deal with both matters, Mr Lyons?

MR LYONS:   Yes, your Honour.

HIS HONOUR:   All right, that is how we will proceed, Mr Theo.

MR THEO:    Right.  Now, I would like to ‑ ‑ ‑

HIS HONOUR:   There were certificates of taxation in both of these matters, is that right?

MR THEO:    Yes.

HIS HONOUR:   Yes, and, what, you are trying to have those taxations reviewed?

MR THEO:    Set aside for the time being until another date is fixed because the situation is that the exhibits that I submitted, it was admitted by the Registry in Canberra that I did request an adjournment because I was interstate, so it was not physically ‑ ‑ ‑

HIS HONOUR:   No, you may have been interstate, but you had been served.  There were affidavits of service that you had been served with the ‑ ‑ ‑

MR THEO:    Yes, I requested them ‑ ‑ ‑

HIS HONOUR:   Listen to me.

MR THEO:    Sorry.

HIS HONOUR:   That you had been served with the applications for taxation ‑ ‑ ‑

MR THEO:   That is correct.

HIS HONOUR:   ‑ ‑ ‑ and you knew the dates upon which the taxations were to take place.

MR THEO:    That is correct, your Honour.

HIS HONOUR:   Well, you just cannot expect the Court at the last minute to give you an adjournment, or the Registrar.

MR THEO:    The situation is that through force majeure I had to be interstate and this is why - it is not at the drop of a hat that I request it.

HIS HONOUR:   Before we come to that, under what rule do you make your application to set aside the taxation?

MR THEO:    Under your – under the Justice’s jurisdiction, your Honour.

HIS HONOUR:   Now, which rule?

MR THEO:    In my affidavit I did mention that.  I have not memorised the ‑ ‑ ‑

HIS HONOUR:   You see, it cannot be Order 71 rule 89 because that is an application for a review.

MR THEO:    This is why - please tolerate my ignorance, because I did say “or any other rule” ‑ ‑ ‑

HIS HONOUR:   But you have to identify the jurisdiction.  I cannot make it up for you, Mr Theo.

MR THEO:   On the basis that ‑ ‑ ‑

HIS HONOUR:   Just wait a moment.  Mr Lyons, is there a rule or a basis for an application to set aside the taxation as opposed to reviewing it?

MR LYONS:   Order 71 rule 22.

HIS HONOUR:   Rule 22, thank you for that.  That speaks of review, Mr Lyons.

MR LYONS:   Doing the best that one can for the applicant ‑ ‑ ‑

HIS HONOUR:   It is the closest you could get to.

MR LYONS:   Yes.

HIS HONOUR:   Thank you for that.  I must say that I would be disinclined to read it as an application to set it aside.  All right.  Now, Mr Lyons – your opponent has very kindly drawn attention to a rule – it is Order 71 rule 22 – which provides that:

Every taxation of costs and every decision of a taxing officer shall be subject to review by a Justice.

So, for present purposes, let us assume – and it may or may not be a correct assumption – that under that rule you could get the whole taxation set aside.  Why should it be set aside, simply because you say you applied for an adjournment, you should have got an adjournment, and it was not granted?

MR THEO:    Also, when the Registry on the – there is a letter that was sent to me on 19 December, and it is all in my affidavit.  She, the lady, the Deputy Registrar said that she informed me of the decision and then I had the right to lodge an objection, which I never received any decision of the taxation until the respondents send me the actual certificate.

HIS HONOUR:   Yes, all right.  So you say you were not advised – first of all, you say you should have been given an adjournment, and, secondly, you say that you were not advised ‑ ‑ ‑

MR THEO:    Of the decisions.

HIS HONOUR:   ‑ ‑ ‑ of the decision on the taxation until, what, it was served upon you by the second respondent?

MR THEO:   Correct.

HIS HONOUR:   Is that right?

MR THEO:    Yes.

HIS HONOUR:   All right.  Now, are there any other bases upon which you would seek to have the ‑ ‑ ‑

MR THEO:    No.

HIS HONOUR:   No.  Is there anything more you want to say about those matters?

MR THEO:    In my affidavit, your Honour, page 4, the affidavit of 25 November, I made - a sentence is omitted where I am specifying that the letter of the second respondent to me was referring to a letter to the Registrar as way back as in June.  This June bit is not shown and when I submitted attachments, your Honour, attachment B is not the correct one.  If I, with the permission of the Court – apparently the second respondent has submitted an affidavit two days ago.  Their exhibit G is the one I am referring to.

HIS HONOUR:   All right, just before I do that, have a look at that, I am just looking at your affidavit of – is it the 21st, is it, or the 25th?

MR THEO:    The 25th of November, page 4.

HIS HONOUR:   All right, let me just read that.

MR THEO:   Sorry?

HIS HONOUR:   I am just reading it.

MR THEO:    Can I guide you?

HIS HONOUR:   In a moment.  I just want to read this first, Mr Theo.

MR THEO:    Okay.

HIS HONOUR:   Yes.  Now, what did you want to draw my attention to on page 4 of your affidavit?

MR THEO:    Page 4, the fourth line, my word processor missed a couple of words.  Where it says, “of the High Court’s delay hence since” - the word “June” is missing.

HIS HONOUR:   Yes.  I think I can see a “J” here but, yes, it is June.

MR THEO:    Yes, and amongst my exhibits, in that same line, I refer to their letter dated 21 September.  In my exhibits, I erred, and I included a different letter.  The correct letter should be the one in their affidavit, exhibit G for George.

HIS HONOUR:   All right, thank you for that.  Thank you, Mr Theo.  I will see what Mr Lyons has to say.

MR THEO:    Thank you.

HIS HONOUR:   Mr Lyons, just to see if I understand the position, we are concerned with both B9 and B18, but you tell me if there is any difference so far as what happened is concerned.  Both were applications for special leave to appeal, is that right?

MR LYONS:   That is so, your Honour.

HIS HONOUR:   And both failed, is that correct?

MR LYONS:   That is so, yes, your Honour.

HIS HONOUR:   And orders for costs were made in favour of your clients and perhaps Mr Derrington’s client as well, is that right?

MR LYONS:   Yes, your Honour.

HIS HONOUR:   But, anyway, just concentrating on your client.  So orders in your favour were made and then you applied to have - you prepared a bill in taxable form in each case, and then there is applications made under the Rules to the Registrar to have those bills taxed.  Is that what happens?

MR LYONS:   Yes, your Honour.  I have a chronology, your Honour, which ‑ ‑ ‑

HIS HONOUR:   That would be useful, thank you.  Have you a copy for Mr Theo?

MR LYONS:   I have a written outline of submissions and I might hand those up simultaneously, your Honour.

HIS HONOUR:   Thank you.  Do you have a copy for Mr Theo?

MR LYONS:   Yes, your Honour.

HIS HONOUR:   Thank you.  Mr Lyons has prepared his submissions in writing, which I am going to read now.  There is a copy for you.  You read them and I will read them and then we will see what Mr Lyons has to say.  I will just read these quickly, Mr Lyons, thank you.

MR LYONS:   Thank you, your Honour.

HIS HONOUR:   You mention B7 here, Mr Lyons.  Is it B7 or B9 on your chronology?

MR LYONS:   That might be my inadequate typing, your Honour.

HIS HONOUR:   It is 9, is it?

MR LYONS:   Yes, your Honour.

HIS HONOUR:   Mr Lyons, the dates in your chronology, was it the same date in respect of both applications in each case?

MR LYONS:   That is so, your Honour.  Everything has been done in tandem.

HIS HONOUR:   Right.  What about the applications for special leave, were they heard on the same day or were they different dates?

MR LYONS:   The same day and together, your Honour.

HIS HONOUR:   Thank you.  You do not need to add anything to this material, Mr Lyons?

MR LYONS:   No, your Honour.

HIS HONOUR:   Is there anything you want to say in response to what Mr Lyons has put?

MR THEO:   Yes, your Honour, in regard to chronology, this, that the gentleman was kind enough to give me a copy, where it says on 10.10:  it says, the “Taxing officer telephones the applicant”, the taxing officer – I do have an answering machine - and spoke to the answering machine.  I was not in Brisbane.  So, she did not telephone me.  So, the situation is that she acknowledges in her letter, having received my letter that I would be away, so how can I – even in the answering machine, apparently she says, “Well, there’s no use me talking to you because you won’t get my message”.  So, that is one point.

The other point is that on 19/10 the Registrar of the High Court of Australia did allege to me that she did send me a letter.  That letter never arrived and I have not lost – no mail has been lost, ever, addressed to me.  The address is correct.  I am known there since 1973.  So, that particular letter, perhaps, with all due respect to the Registrar, either she or an assistant in the office sent it to the wrong address.  Consequently, I was not able to take any action whatsoever.

HIS HONOUR:   Anything further you want to say?

MR THEO:   No, no.  I have not had a chance to read the other two pages.

HIS HONOUR:   All right, you read the other two pages.  Mr Lyons, affidavits of service were filed, were they?

MR LYONS:   Yes, they were.

HIS HONOUR:   I will tell you why I ask that.  I see in your chronology, “Registry writes to both parties”, that is the first item; “Second respondents’ solicitors write to the applicant serving endorsed copies”, but when you say “write”, they were personally served, were they, or is there a provision for service by letter?

MR LYONS:   I think it was sent by post to the address for service of the applicant.  The material in support of service includes two affidavits of Mr Philp, sworn, I think, 11 October.  One affidavit in each proceeding.  I believe the affidavit was both filed and it is also exhibited to Mr Bennett’s affidavit.

HIS HONOUR:   But do the Rules require that there be personal service or service by post?  Can you tell me what the position is?

MR LYONS:   In any event, your Honour, service is not an issue.  The applicant admitted service at the commencement of today’s application and the material does not contain any contest as to service of the endorsed bills upon him.

HIS HONOUR:   It is Order 62 rule 3, “or by posting in a pre‑paid registered envelope”.

MR LYONS:   Yes, your Honour.

HIS HONOUR:   Yes.

MR THEO:    Your Honour, the few things I was able to pick - with all due respect, in layman’s terms, what comes first the chick or the egg?  I wish to refer to the first paragraph of the submissions where it says, “the summons was filed more than 14 days after the date of the certificates”.  If I did not receive the certificates other than on the 21st of – it is documented there – that was attached in the letter from the respondent, how can I perform?  Nobody has ever alleged having sent to me any certificates so that I can comply with this 14 days situation.  So, automatically, we go into a vicious circle type of thing.  They are trying to crucify me on technicalities for which I was not responsible.

HIS HONOUR:   Yes, anything else, Mr Theo?

MR THEO:    In page 2, I elaborated on the fourth point, “The applicant complains that he did not receive the taxing officer’s letter to him dated 19.10.1.”  This is true.  I elaborated - I will not take the honourable Court’s time to regurgitate the things.  So, in my experience, there should have been more communications from the Registrar to me, in various shapes and forms.  I am not trying to duck the issue in any shape or form.  I am just requesting that a fresh date be set for proper taxing of the costs.  That is all I have to say, your Honour.

HIS HONOUR:   Right, thank you.  Well, I am in a position to deal with these matters now.

MR THEO:    Sorry?

HIS HONOUR:   I am going to give judgment, Mr Theo, thank you, you can sit down.

The applicant, Mr Theo, who appears before me in person, unsuccessfully applied in two matters for special leave to appeal to this Court.  On the dismissal of both applications, orders for costs were made, relevantly, for today’s purposes, in favour of the second respondent.  The second respondent duly prepared a bill of taxation of costs in the proper form and arrangements were made for the bill to be taxed by a Registrar of this Court.  The bills were served upon the applicant before me today and a date, of which he was notified, was fixed for the taxation of them, that is, the 11 October 2001.

In the notification to Mr Theo, he was invited, if he wished, to file and serve a list of objections by 8 October 2001.  The bills, in taxable form, were served on the applicant on 21 September 2001.  The applicant did not file and serve any objections in the proceedings.  On 8 October 2001 he sent a letter to the Registrar in which he said that he would be interstate and wished to have the taxation of the bills adjourned.  The letter did not disclose any reasons why the applicant would be interstate, notwithstanding that he had had three weeks notice of the taxation.

No explanation was offered as to why any interstate journey could not have been deferred.  No location was identified and, indeed, there was no evidence offered to establish that he was going interstate in any pressing circumstances that might compel him to do so.  Nor was any alternative date for the taxation of the bills suggested.  The Registrar who was dealing with the matter did not accede to the request contained in the letter and she telephoned on 10 October 2001 the telephone number of the applicant.  It seems that she did not speak to the applicant when she telephoned, but she did leave a message for him, presumably upon an answering machine.

The taxation proceeded on 11 October 2001.  The second respondents appeared on the taxation, the applicant did not.  Some deductions were made in respect of some items in the bills.  On 19 October the taxing officer wrote to both parties advising the result of the taxation and that she proposed to sign certificates in the amounts indicated on 13 November 2001.

In her letter, she drew attention to the provisions of Order 71 rules 87 and 88.  On 13 November 2001, the taxing officer advised a date upon which she would sign the certificates.  That date was 15 November 2001, on which both certificates were duly signed.  The second respondent’s solicitors then served sealed copies of the certificates of taxation and demanded payment.  The applicant filed a summons on 3 December 2001.  It was not clear initially whether the applicant’s summons was intended to relate to both matters, these being B18 and B9, but he has informed me today that it was so intended, and Mr Lyons, who appears for the second respondents, is content to deal with both matters today. 

The applicant, in oral submissions, contends that both certificates of taxation should be set aside in their entirety.  Whether there is power to do that, either under Order 71 rule 22, or some other inherent power of the Court, it is unnecessary for me to decide, because I have formed the opinion that for other reasons, in any event, the applications must be dismissed.  It has not been demonstrated that the Registrar and the taxing officer erred in principle in any way in dealing with the bills of costs, or the belated application for an adjournment in the non-specific terms in which it was made.  Even today, the applicant has not placed any evidence before the Court of any of the details of his interstate journey, or of the reasons why he would give precedence to it over the appointment for the taxation of the bills which had been set some weeks before. 

The litigation of which these applications are the tail-end has been on foot since 1996.  There have been two special leave applications, two appeals to the Full Court of the Federal Court, and various applications to single judges of the Federal Court.  No point would be served, at all, in prolonging these matters any further.  The taxing officer and the Registrar acted properly in all respects.  I would dismiss the applications. 

I am dismissing your applications, Mr Theo.  Have you anything to say about costs, Mr Lyons? 

MR LYONS:   Your Honour, I would seek costs in both applications, and in so doing, I would ask your Honour to certify for counsel under Order 71 rule 62 in both applications. 

HIS HONOUR:   Yes, Mr Lyons.  All right, what do you say about costs of today, Mr Theo? 

MR THEO:   With all due respect to your Honour, if I may have a second bite of the cherry ‑ ‑ ‑

HIS HONOUR:   No, you may not, Mr Theo.  You have made your submissions; I have given you every opportunity.  I am prepared to hear from you now as to why I should not make an order for costs in favour of Mr Lyons’ client. 

MR THEO:   Talking about costs, as you asked me.  The honourable Court, I believe, should give me the benefit of the doubt and not allow costs against me, because of all these details that I enumerated in my affidavit.  I will not use any words that I will regret, but the situation is that I have been really deprived of natural justice.  So for this reason, your Honour, my answer to your question is:  the benefit of the doubt must be given.  As you see, learned gentlemen have appeared in today’s hearing when they were not a party to it, so what a lay person chance has in this intricate legalese procedures? 

HIS HONOUR:   Anything further? 

MR THEO:   No, your Honour. 

HIS HONOUR:   There will be an order for costs in favour of the second respondents and I certify for the appearance of counsel.  Is there nothing further? 

MR LYONS:   No, thank you, your Honour. 

HIS HONOUR:   Mr Derrington, I do not think there is any need to make any orders in respect of your client. 

MR DERRINGTON:   No, save that there is a pending summons in respect of which the applicant seeks to review the certificate of taxation.

HIS HONOUR:   Similar to the proceedings that I have just disposed of, is it? 

MR DERRINGTON:   Quite similar, although it appears that the certificate of taxation was issued on 31 August, your Honour, and the application only recently made.  Now, that may depend upon ‑ ‑ ‑

HIS HONOUR:   But he is not pressing it today, Mr Derrington. 

MR DERRINGTON:   I was hoping for, perhaps, some directions as to what might occur, but it may well be that it is better just to await what will happen rather than ‑ ‑ ‑

HIS HONOUR:   What happens, yes. 

MR DERRINGTON:    ‑ ‑ ‑ give directions, because – yes. 

HIS HONOUR:   All right.  Well, I will not make any order in respect of your client. 

MR DERRINGTON:   Thank you, your Honour. 

HIS HONOUR:   Yes, Mr Theo. 

MR THEO:   Forgive my hearing, your Honour.  I missed your decision on the costs situation. 

HIS HONOUR:   I made an order for costs against you, Mr Theo, in favour of the second respondents, and I certified for the appearance of counsel, which I have to do under the Rules, if they are ‑ ‑ ‑

MR THEO:   Certified the appearance of which counsel? 

HIS HONOUR:   Of Mr Lyons. 

MR THEO:   Not the ‑ ‑ ‑

HIS HONOUR:   No, I have made no order in respect of Mr Derrington’s client.  So there is no order of any kind, for costs or anything else ‑ ‑ ‑

MR THEO:   Thank you, your Honour. 

HIS HONOUR:    ‑ ‑ ‑ in respect of Mr Derrington’s client.  Nothing further, gentlemen? 

MR LYONS:   No, thank you, your Honour. 

MR DERRINGTON:   No, thank you, your Honour. 

HIS HONOUR:   All right.  Happy Christmas to you all, and adjourn the Court.  Happy Christmas to you, too, Mr Theo. 

MR LYONS:   Thank you, your Honour. 

MR DERRINGTON:   Thank you, your Honour. 

AT 11.29 AM THE MATTER WAS CONCLUDED