Walter & Ors v National Australia Bank Ltd

[2006] HCATrans 97

[2006] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M81 of 2004

B e t w e e n -

CARMEN WALTER AND FRITZ JOSEPH WALTER AND INGRID ADELHEID ROSA WALTER

Applicants

and

NATIONAL AUSTRALIA BANK LTD

Respondent

Office of the Registry
  Melbourne  No M82 of 2004

B e t w e e n -

FRITZ JOSEPH WALTER AND INGRID ADELHEID ROSA WALTER

Applicants

and

NATIONAL AUSTRALIA BANK LTD

Respondent

Applications for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 MARCH 2006, AT 9.52 AM

Copyright in the High Court of Australia

__________________

GUMMOW J:   The applicants seek special leave to appeal from orders of the Court of Appeal of Victoria (Phillips JA and Bongiorno AJA) refusing an application for a stay pending appeal from the judgment of Dodds-Streeton J given on 25 February 2004 in two proceedings.  Her Honour had dismissed with costs a proceeding brought by the present applicants in Matter M81/2004 seeking to set aside certain loan contracts, mortgages, guarantees and debentures executed by them in favour of the present respondent, and in the second proceeding, brought by the present respondent, had given judgment for the plaintiff granting possession of land comprising the home of the present applicants in Matter M82/2004.  In each case costs were awarded on an indemnity basis.  The Court of Appeal also granted the respondent security for costs in the amount of $10,000 for each appeal.

In refusing the application for stay of judgment the Court of Appeal held that no exceptional circumstances had been shown to warrant a departure from the general rule that a litigant is entitled to the benefit of judgment notwithstanding the

availability of an appeal.  Their Honours also observed that there was “a real doubt that [the] appeals [would have] any merit”.  Before Dodds‑Streeton J numerous unmeritorious legal arguments were presented, which the Court of Appeal noted were “regurgitate[d]” in the notices of appeal to that Court.  This lack of merit also justified the award of security for costs.

The applications for special leave to appeal and the applicants’ summary of argument rely upon numerous vague and irrational grounds which fail to disclose any error in the judgment of the Court of Appeal.  In particular, the applicants allege actual and apprehended bias on the part of Phillips JA on the basis that his Honour’s wife held a small parcel of shares in the respondent, a fact his Honour disclosed at the hearing of the applications for stay of judgment.  His Honour did not, however, err in refusing to disqualify himself.

There would be insufficient prospects of success to warrant a grant of special leave in these proceedings which are, moreover, interlocutory.  Accordingly, the applications for special leave are refused with costs.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the applications for special leave with costs.  I publish the disposition in both matters signed by Heydon J and myself.

AT 9.55 AM THE MATTERS WERE CONCLUDED