Saint, Ex parte - Re Von Doussa & Ors A6/2000 [2000] HCATrans 146 (3 April 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A6 of 2000

In the matter of -

An application for Writs of Certiorari and Prohibition against THE HONOURABLE JOHN WILLIAM VON DOUSSA, a Judge of the Federal Court of Australia

First Respondent

THE HONOURABLE CATHERINE MARGARET BRANSON, a Judge of the Federal Court of Australia

Second Respondent

THE HONOURABLE MAURICE FRANCIS O'LOUGHLIN, a Judge of the Federal Court of Australia

Third Respondent

THE HONOURABLE RONALD JOHN MANSFIELD, a JUDGE OF THE FEDERAL Court of Australia

Fourth Respondent

PETER VANCE CAREY, a Registrar of the Federal Court of Australia

Fifth Respondent

GREGORY CHARLES FISHER, a Registrar of the Federal Court of Australia

Sixth Respondent

THE JUDGES AND REGISTRARS OF THE FEDERAL COURT OF AUSTRALIA

Seventh Respondents

PETER IVAN MACKS as Liquidator of Addstead Pty Ltd (in Liquidation) and the companies named in Schedule "A" and ADDSTEAD PTY LTD (IN LIQUIDATION) and the companies named in Schedule "A"

Eighth Respondents

DEPUTY COMMISSIONER OF TAXATION

Ninth Respondent

Ex parte -

ANTHONY JOHN SAINT

Applicant/Prosecutor

Office of the Registry

Adelaide No A9 of 2000

In the matter of -

An application for Writs of Certiorari and Prohibition against THE HONOURABLE JOHN WILLIAM VON DOUSSA, a Judge of the Federal Court of Australia

First Respondent

THE HONOURABLE CATHERINE MARGARET BRANSON, a Judge of the Federal Court of Australia

Second Respondent

THE HONOURABLE MAURICE FRANCIS O'LOUGHLIN, a Judge of the Federal Court of Australia

Third Respondent

THE HONOURABLE JOHN RONALD MANSFIELD, a Judge of the Federal Court of Australia

Fourth Respondent

PETER VANCE CAREY, a Registrar of the Federal Court of Australia

Fifth Respondent

GREGORY CHARLES FISHER, a Registrar of the Federal Court of Australia

Sixth Respondent

THE JUDGES AND REGISTRARS OF THE FEDERAL COURT OF AUSTRALIA

Seventh Respondents

PETER IVAN MACKS as Liquidator of Addstead Pty Ltd (in Liquidation) and the companies named in Schedule "K" and ADDSTEAD PTY LTD (IN LIQUIDATION) and the companies named in Schedule "K"

Eighth Respondents

DEPUTY COMMISSIONER OF TAXATION

Ninth Respondent

Ex parte -

ANTHONY FRANCIS JOHNSON, PETER DAMIAN SLATTERY, JOHN STORRIE KEEVES, ROBERT JAMES BAXTER, JOHN DESMOND WARDE, WILLIAM McMILLAN CHRISTIE, DAVID PETER RYDON, CAROLINE RUTH CHRSTIE and GORDON RADFORD

Applicants/Prosecutors

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 3 APRIL 2000, AT 2.16 AM

Copyright in the High Court of Australia

______________

MR M.L. ABBOTT, QC: If your Honour pleases, in action A6 of 2000 I appear with my learned friend, MR N.J. ILES, for Mr Saint, the applicant/prosecutor. (instructed by Piper Alderman)

MR D.F. JACKSON, QC: In matter A9, I appear with my learned friend, MR H.A.L. ABBOTT, for the applicants. (instructed by Daenke O'Donovan)

MR R.J. WHITINGTON, QC: May it please your Honour, in both matters I appear with my learned friend, MR M.F. BLUE, for the eighth respondents. (instructed by Ward & Partners)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: If the Court pleases, I appear with my learned friend, MS S.J. MAHARAJ, for the Deputy Commissioner of Taxation who seeks to be added as a party. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, I have your motions. I should add that I hold a certificate from the Deputy Registrar stating that she has been informed by the solicitors for the first to seventh respondents in each matter that those respondents do not wish to present any argument at the hearing of the matter, save as to any costs that might be sought against them, and that they will submit to any order of the Court.

MR JACKSON: Your Honour, Mr Abbott and I have agreed that I would go first and divide up the matter a little. These are applications for orders nisi for certiorari and prohibition. I am speaking, of course, about our application in dealing with this. In respect of the application for certiorari, also for an order pursuant to Order 64 rule 2, excusing the applicants from non-compliance with the six month application period provided for by Order 55 rule 17, your Honour, may I deal first with the extension of time question and then go on to the substance of the matter.

HIS HONOUR: What I was minded to do, Mr Jackson, subject to anything you might say - I have looked at the transcript of the special leave applications - was to refer each matter to proceed under Order 55 into the Full Court as an application for absolute orders in the first instance.

MR JACKSON: Yes, your Honour. We would be content with that course. Could I say in relation to it - your Honour, I do not think, in those circumstances, I would be able to get your Honour to make an order nisi.

HIS HONOUR: No.

MR JACKSON: In those circumstances, could I just say a couple of other things. One is that we would seek to have these matters dealt with at the same time as those set down in the sittings in May. Could I just say in relation to that three things: first, the Residual Assco Case may only decide the fate of section 11; possible it will go further, but it may only decide the fate of - - -

HIS HONOUR: Yes, I stated that case, I think.

MR JACKSON: Yes, your Honour did.

HIS HONOUR: That is a case in which the litigation had started off in the Federal Court, had it not, and there was a question of reinvigorating it in the Supreme Court.

MR JACKSON: Yes, your Honour.

HIS HONOUR: And that raises section 11 squarely, I suppose.

MR JACKSON: Yes, it does, your Honour, because of course a core question is that section 11 says that the proceeding goes to the State court.

HIS HONOUR: Now, in this case, am I right that the proceeding against you and against Mr Abbott's clients was commenced by Mr Whitington's client only in the Supreme Court. That proceeding has not been in the Federal Court.

MR JACKSON: Yes. The windings-up and the appointment of the liquidator were in the Federal Court with, your Honour, I should say, two exceptions. Exception one is there was one case where a winding-up order was made by resolution and that is out of it. The other is that the liquidator is personally, also, a plaintiff in the Supreme Court as well. Your Honour, I was going to say that the Residual Assco Case may only decide the fate of section 11. That is the first thing.

The second thing is that the other case, the Transworld Case being heard with it, may not necessarily decide all the issues. Could I say in relation to that, your Honour, that that is a matter that my learned friend, Mr Abbott, will refer to. The third thing is that it is sometimes better, perhaps sometimes not, also, for the Court to deal, in our submission, with a number of cases, they presenting different species of the same genesis, as it were, because it does allow the Court to see how its decision will operate in a number of circumstances. Your Honour, those are the things I wish to mention.

HIS HONOUR: Yes, thank you. Yes, Mr Abbott. Before Mr Jackson sits down I should have asked him, is your attitude to Mr Bennett's motions the same as it was in the leave application the other week?

MR JACKSON: Your Honour, it is more matured, if I can put it that way. What I mean by that is, first of all, that we do not have any objection, we have served them with the affidavits in this matter and they are, so far as we are concerned, a respondent to the order. We have no objection to them being made a respondent to the order. What we do have an objection to, your Honour, is the kind of, with respect, misapprehension that seems to underlie what we understand they are going to say and that is that, in some way, they should have the costs of today for not having been joined in the proceedings, but the proceedings really only commence today. They are here, in effect, by leave in the proceedings. That is what we would seek to say.

HIS HONOUR: They have not really got anything to have a motion in, on one view of it, yet.

MR JACKSON: I am sorry, your Honour?

HIS HONOUR: They may not have anything in which they can have a motion at the moment.

MR JACKSON: No, your Honour.

HIS HONOUR: Yes, Mr Abbott.

MR ABBOTT: Dealing with their application, we take the same attitude as my learned friend.

HIS HONOUR: Thank you.

MR ABBOTT: Indeed, with more mature consideration, it seems to us that the submission made by my learned friend, Mr Bennett, in paragraph 2(d) of his submissions has some force in so far as he says that:

It could be asserted that the liquidator as an officer of the Court, and whose legal role only as a person commences upon the winding-up orders being made, has no legal role in actively defending the winding-up orders, and that his role ought to be more in the nature of abiding by the results -

It seems to us that is an argument that we would want to ventilate in any event before the Full Court. So we take the same attitude as my learned friend.

HIS HONOUR: The joinder of Mr Bennett would remove the necessity for that, that argument, I would hope.

MR ABBOTT: So far as the utility of these proceedings, the brief points are that the Residual Assco Case, as my learned friend has said, might be decided on the section 11 point only. It was essentially a transfer application and the questions dealing with 6, 7, 8 and 10 may be left unanswered. The Transworld Marine Case, if I can call it that, may be decided by a refusal of the relief sought, namely prerogative writ - - -

HIS HONOUR: What do you see as the issue in Transworld that is different from - - -

MR ABBOTT: At face value it is a prerogative writ case. The determination of whether or not prohibition should issue to stop the Full Court of the Federal Court bringing down a judgment may go off on an accrued jurisdiction point. I am told that those who seek to support the judgment seek to do so on the basis that the Federal Court has accrued jurisdiction in any event and that if the application for prohibition is refused on that point, you would never get to a consideration of the legislation.

HIS HONOUR: Yes, I understand that.

MR ABBOTT: Your Honour, I need not repeat the issues in the Residual Assco Case because your Honour is well aware of that and your Honour, indeed, the first thing you said was, "How does sections 6, 7, 8 and 10 arise?" and the answer you were given, as I see it in the transcript, is that they may arise.

HIS HONOUR: Yes. Could I ask you a question about your - I think it is common to the draft orders nisi of both moving parties. What is sought to be prohibited is the proceedings against you in the Supreme Court by the liquidator, to use that - - -

MR ABBOTT: What is sought to be prohibited is any further steps being taken.

HIS HONOUR: In those two actions in the South Australian - - -

MR ABBOTT: In those two actions.

HIS HONOUR: Yes. Now, the grounds for that do not, I think at the moment, include any assertion that sections 5 and 6 and so on of the remedial statute - - -

MR ABBOTT: Sections 6, 7, 8, 10 and 11.

HIS HONOUR: Yes, are invalid. I mean, we all know that the cross-vesting has fallen that fate but does there not need to be some averment of invalidity of the Act that, on its face, validates the liquidator's appointment?

MR ABBOTT: We would say it is for my learned friends, if they wish to rely on it, to assert it, in which case we would respond by saying that they are invalid and ought to be determined in that way.

HIS HONOUR: How, then, is the issue of validity, in a procedural sense, going to arise, other than in an argumentative sense?

MR ABBOTT: Because they have made it quite clear that they do rely upon those sections and, indeed, any other powers that they can summon up, to support the liquidator. But we do have - - -

HIS HONOUR: I will hear what Mr Whitington says on that and then I may encourage you to think - - -

MR ABBOTT: If your Honour was minded to state a case, we have prepared minutes of order on that basis, given that your Honour did that in the Residual Assco Case.

HIS HONOUR: Yes, but that was consequent upon a removal.

MR ABBOTT: Exactly.

HIS HONOUR: I do not think I would do that here.

MR JACKSON: Your Honour, may I say something?

HIS HONOUR: Yes.

MR JACKSON: May I just say something in response to what your Honour put to my learned friend before my learned friend, Mr Whitington, replies. It would seem to us, with respect, that the question of the matters relied upon in response to the application are ones essentially for our learned friends. By that I mean the respondents, and they may consist, broadly speaking, of two things: first, matters of law; secondly, matters of fact which might be relied upon, perhaps, in relation to certiorari particularly. Now, in relation to that, your Honour, what we would submit is that an appropriate to deal with the issue would be for there to be a time fixed for there to be, first of all, any material relied upon by the other sides to be filed within a certain time; secondly, for there to be a statement of the matters upon which, in short form, reliance is placed. That would then raise the issue of the State Act.

HIS HONOUR: Yes, but I do not want the application to get into the Full Court with factual matters to be sorted out, that is the problem.

MR JACKSON: Your Honour, I do not know that there are any. It is a matter for my learned friends in that regard.

HIS HONOUR: Yes. Yes, Mr Whitington.

MR WHITINGTON: If the Court pleases, it is our respectful submission that if this matter goes up to the Full Court, the first issue for the Full Court will be what it does about the Federal Court orders. In our respectful submission, Wakim decided that those orders stood until set aside or quashed as a matter of discretion. In other words, they stand for the proposition that our learned friends do not have a title or an entitlement to an order.

HIS HONOUR: I realise that, but Wakim was decided before the passage of the Federal Courts (State Jurisdiction) Act.

MR WHITINGTON: Your Honour, this case will not raise the Federal Courts (State Jurisdiction) Act because, with great respect, that Act does not, in any sense, seek to validate an order of the Federal Court. So that Act cannot stand in the way of certiorari and prohibition. What the Act does is say that if there is an order of the court which is ineffective, whether it is set aside or not, being an order of the court which is extant at the date of the legislation, then certain rights and liabilities flow under section 6. But the Act, as I say, says nothing about the underlying effect of the Federal Court order.

HIS HONOUR: That is a matter of debate, I suppose, Mr Whitington.

MR WHITINGTON: Put shortly, your Honour, we say - - -

HIS HONOUR: You may be foolish to nail your flag to a disputed mast at this stage.

MR WHITINGTON: I understand your Honour's point, but can I put it this way. The first issue, we say, which - - -

HIS HONOUR: What do you say should happen in the Full Court?

MR WHITINGTON: The first issue, your Honour, will be whether there should be an extension of time.

HIS HONOUR: Yes.

MR WHITINGTON: That is a discretionary issue on the authority of Wakim and that will require an inquiry into the facts.

HIS HONOUR: I see.

MR WHITINGTON: So the Court will not be able to proceed - - -

HIS HONOUR: How is the Full Court going to decide that?

MR WHITINGTON: We say it cannot, your Honour. So it will immediately have to refer the matter back to a single judge, for instance, for a trial or inquiry into the facts under Order 55, unless the Full Court were to take the position that this order can be quashed as a matter of right. Now, that is not the position taken in Wakim. If the Full Court is to reconsider that, then so be it, and if it reconsidered it and held that there was a right or title to quash the order, there would be no discretionary issue. But, in our respectful submission, this Court would be very unlikely to reconsider a proposition of principle stated by six Justices in Wakim only a matter of 10 months or so after that decision, in light of what the Justices said about, for instance, St Helen's Case in Wakim.

So, so long as that principle stands, there is a discretionary issue. And while there is a discretionary issue, there must be an inquiry into the facts. Until there is an inquiry into the facts, really there will be no utility in the Full Court considering the prerogative writ proceedings. It is only if the Full Court decides, on discretionary grounds, that it will entertain the order nisi application and make an order nisi and go on and consider the order absolute, that - - -

HIS HONOUR: It just makes an order absolute in the first instance. That is what it is all about. You do not go through two hoops; you only go through one.

MR WHITINGTON: Yes. Well, in any event, we would say that the requirement for an extension of time is still there and the Court still has to consider that.

HIS HONOUR: Yes. So, what do you say should happen today?

MR WHITINGTON: Well, your Honour, we say that your Honour should refer this matter in the appropriate way for an inquiry on the facts as to whether there should be an extension of time. Now, we imagine that would be to a single Judge of the Court. That would enable us to put on an affidavit demonstrating that third party rights have intervened, an affidavit of the kind indicated by the reasons in Wakim, and it may or may not be, after that affidavit is filed, that there will be contested issues or it may be that the matter can simply proceed on the affidavits.

Your Honour, it is quite wrong to assert, as the deponents for the applicants do, that third party rights have not intervened. They simply assert that and purport to assert it as a matter of their own knowledge but that simply is not correct and one only needs to think about it for a moment to see how it could not be correct. These liquidations and these orders go back to 1995. This liquidator has been administering these 63 companies in insolvency since that time. He has been conducting massive litigation. As the applicants themselves say, he has entered into a funding arrangement involving a loan from a bank and insurance. He has entered into real property transactions. He has sold property. He has sued and obtained judgment and made recoveries under the judgment. He has been sued. He has obtained cost orders and had cost orders obtained against him, and so on. These are all matters which would have to be inquired into on the discretion, on the question of whether or not there should be an extension of time.

So, we would respectfully submit that a direction ought to be made in respect - - -

HIS HONOUR: Is an extension of time required for prohibition as well?

MR WHITINGTON: No, your Honour, it is not. It is only for certiorari. But, of course, your Honour will remember that the Justices in Wakim's Case, who were in the majority, took the view that it would be anomalous to grant a prohibition generally under an order which was not to be quashed and so only limited prohibition was granted and that was prohibition in respect of further steps in the proceedings in the Federal Court, obviously by virtue of the fact that the Federal Court was found to have no jurisdiction in the matter. So, we say this Court treated the issue of prohibition as a matter of discretion and was unwilling to exercise that discretion in favour of prohibition generally.

HIS HONOUR: Now, just tell me this: what is your client's position if the result is that you are unsuccessful in your arguments as to the sanctity of the winding-up orders and that they are truly ineffective?

MR WHITINGTON: Your Honour means in the event of ab initio?

HIS HONOUR: You then still say the Federal Courts (State Jurisdiction) Act has nothing to do with it?

MR WHITINGTON: No. We say that that reinvigorates the orders made but that is not an issue which arises in the prerogative writ proceedings.

HIS HONOUR: I see.

MR WHITINGTON: That is an issue which arises in the Supreme Court proceedings, the application brought there by our learned friends which they sought last Friday week to remove into the Full Court.

HIS HONOUR: Well, that has been refused.

MR WHITINGTON: And about which they were unsuccessful. That has been refused.

HIS HONOUR: That has been refused, yes.

MR WHITINGTON: That is right. So, that is why we say, your Honour, that issue does not arise in these proceedings. What we told the High Court then was that while that issue arose in those proceedings, it was premature to have the Full Court deal with it because it did not arise presently. We said it did not arise unless and until the orders were quashed in prerogative proceedings and that, in effect, the prerogative proceedings had to be determined first but it has always been our position that an extension of time is required and that involves discretionary considerations which are not fit for the Full Court.

HIS HONOUR: Yes, thank you.

MR WHITINGTON: There is a further matter, your Honour. As we understand the Transworld Case, there are, in fact, two separate prerogative writ proceedings which have been referred up to the Full Court, action No 176 and action No 196, and it was the intention of the parties - and I think his Honour Justice Kirby in referring those up - that they raise all aspects of the issue going to the validity of orders. His Honour said as much on the transcript in relation to the application in 176, although that was the application that sought prohibition against the Full Court and it may be the issue of validity of the order of the Federal Court, being the order of Justice Tamberlin, arises more directly in action No 196, but nonetheless - - -

HIS HONOUR: But do they involve winding-up orders?

MR WHITINGTON: No, they are not, your Honour, no. The order of Justice Tamberlin was an order that he made entering judgment after trial.

HIS HONOUR: That is what I thought, yes.

MR WHITINGTON: But I think it was Justice Kirby's intention that those matters or the referral of those matters to the Full Court raise the issue of the standing and status and the nature and effect of the original order of Justice Tamberlin, whether it was inherently invalid - - -

HIS HONOUR: Yes, but winding-up orders have special characteristics because they go to status.

MR WHITINGTON: Yes. Your Honour touched upon that in Gould v Brown.

HIS HONOUR: They have different characteristics to orders made in ordinary inter partes litigation.

MR WHITINGTON: Yes, we understand that. Your Honour adverted to that in Gould v Brown. We accept that but we still say, nonetheless, that there is no utility in addressing that particular aspect of the matter in light of the discretionary factors.

HIS HONOUR: Yes, thank you.

MR WHITINGTON: If your Honour pleases.

HIS HONOUR: Mr Bennett, would you like to take some instructions or are you happy to deal with what has been said now?

MR BENNETT: I am prepared to deal with it now, your Honour.

HIS HONOUR: Am I right in thinking your client was the petitioning creditor in - - -

MR BENNETT: In some of them, your Honour.

HIS HONOUR: Some of them, yes. But some in each action?

MR BENNETT: Yes, some in each, your Honour. And in the others we were supporting creditor. Your Honour may recall the matter came to the High Court before on an issue which concerns the identity of the petitioner. There was a problem we had with being a petitioner in some of them because we were bound by a scheme of arrangement and that was avoided by the Commissioner of ASIC becoming the petitioner. That, in turn, involved the problem of the leave of the Court not being obtained and that is why the matter came up last time.

I only mention that for this reason, your Honour: in relation to the question of listing and hearing it with the other matters, there will be, in some of the matters, an additional issue which is the effect, if any, on any invalidity of the Federal Court order of the fact that it was affirmed by this Court and that may, on one view of it, involve arguments about the distinction between dismissing an appeal and affirming a decision and there may be various question as to the effect of that. I do not express any view or make any submission about them now except to say that it is another issue which will have to be decided in a fairly short period of time if they are heard together, as will, of course, the issues raised by Mr Whitington.

HIS HONOUR: Yes. Now, what do you say about those? He says, in effect, that this is not in an appropriate state to go to the Full Court because there is a threshold and the threshold is discretion for certiorari?

MR BENNETT: Yes, that is a matter, your Honour, we do not wish, at this stage, to make submissions on.

The only other matter I wanted to mention was we have moved on notice of motion which seemed to me to be the appropriate way of doing it.

HIS HONOUR: I do not think you have any opponents at the moment.

MR BENNETT: I am sorry, your Honour?

HIS HONOUR: You do not seem to have any opposition at the moment in any event.

MR BENNETT: No, that is so. I do ask for costs.

HIS HONOUR: You certainly seem to me to have a real interest.

MR BENNETT: Yes. It is a matter for y our Honour whether costs are dealt with today or by the Full Court. The only point I make is that whatever happens in the Full Court we should have been joined and - - -

HIS HONOUR: I am not sure about that.

MR BENNETT: Well, your Honour, I notice that the draft motion, which we had not seen until a few minutes ago, and the affidavits which we were served with, name a lot of respondents but do not name us. So, there is a little bit of an expressio unius in the way our learned friends have drafted their documents which has rather prompted us to take a more cautious approach to being joined than would otherwise be the case. But, your Honour, I am content for them to be reserved if your Honour feels that is more appropriate. May it please the Court.

HIS HONOUR: Yes. Thank you. Yes, Mr Jackson? What is the answer, if any, about the threshold point as to discretion?

MR JACKSON: Well, your Honour, a question is what are - if I could just say this, first of all, what are the disputed facts? If there are any, why not tell us now? In reality, one is likely to have a situation where you will simply find a list, which we are not in a position to contradict, is given of various activities that the liquidator has been engaged in. That is why, your Honour, what we suggest is that the course that should be taken is one whereby, in the very near future, there be a document filed and served by the respondents which sets out a written outline in which states the matters of fact on which they seek to rely and the submissions, in effect, of fact and law they make upon those.

Your Honour, that applies also to the reliance on the South Australian Act. Your Honour will see, in effect, from our learned friends' submissions the reason for the, if I could so describe it, diffidence we had in relation to the raising of that issue because it does not seem to be relied upon in these proceedings.

HIS HONOUR: Yes.

MR JACKSON: Your Honour, it is a matter for our learned friends whether, if they do not take the point in the proceedings, there would be a kind of Anshun estoppel against them in relation to it but that is a matter for them. But, your Honour, that is why it would be appropriate, in our submission, for there to be something filed and served in the very near future to show the matters that are relied upon as going to defeat either the extension of time for certiorari - it would not seem to be germane to the question of prohibition, perhaps - on the one hand, and secondly, in relation to any other matters that are relied upon as discretionary matters or matters of law which would prevent the success of the applications.

HIS HONOUR: Yes. It does not seem, at the moment, it is going to be ready to get in the Full Court in three weeks.

MR JACKSON: Well, your Honour, no doubt our learned friends know what they want to say. One might perhaps have thought there would be something today indicating some reason for it but that does not seem to be the case.

HIS HONOUR: Yes, Mr Abbott?

MR ABBOTT: We can only add, your Honour, that we took the precaution of giving notice to the insurance company and the bank who are concerned with the funding arrangements of the liquidator. We received a written communication from lawyers representing both organisations that they do not wish to be heard today. So, we would say that this is starting at hares. If there is a case for an exercise of discretion against us, let us hear it within the next five days and we will respond accordingly.

HIS HONOUR: Yes.

MR WHITINGTON: Your Honour, could I just raise one minor point?

HIS HONOUR: Yes, Mr Whitington.

MR WHITINGTON: Just on that last matter: we also had been circulated with a copy of that advice to which my learned friend, Mr Abbott, just referred. As we understand it, the insurance company has indicated it did not wish to intervene today but, depending upon the outcome of the hearing, they reserve the right to make application prior to any final hearing for leave to intervene in the proceedings.

HIS HONOUR: Yes. Now, am I right in thinking, Mr Jackson and Mr Abbott, that the affidavit material that you would be relying on in support of the order nisi application is already on?

MR JACKSON: I am sorry, your Honour, is - - -?

HIS HONOUR: It is here.

MR JACKSON: Your Honour, we have - there are three affidavits we rely upon.

HIS HONOUR: Yes. I just want to know it is here at the moment.

MR ABBOTT: Yes. We have two and we rely on those.

HIS HONOUR: So, you are complete?

MR ABBOTT: Yes, your Honour.

HIS HONOUR: How soon would your material get on, Mr Whitington, in opposition to an application for an order nisi?

MR WHITINGTON: Your Honour, could we ask for seven days in which to complete that material?

HIS HONOUR: Yes. What do you say about that, gentlemen?

MR JACKSON: It is, I think, somewhat luxuriant, your Honour. Perhaps, seven days, we would submit.

HIS HONOUR: Yes. Why can you not do it by the end of this week, Mr Whitington.

MR WHITINGTON: I did say seven.

HIS HONOUR: What is this material?

MR WHITINGTON: It would be an affidavit, I imagine, from the liquidator - at least his instructing solicitors - detailing the steps he has taken in a generic way in the various liquidations and the way in which third party rights have been affected. It will need to be fairly extensive, of course, and detailed.

HIS HONOUR: Yes.

MR WHITINGTON: I do not know whether Mr Jackson misheard me. I only asked for seven days, your Honour.

HIS HONOUR: Yes. He thinks seven is much too much.

MR WHITINGTON: I cannot see him, your Honour.

HIS HONOUR: Yes.

Gentlemen, what I propose at the moment to do this afternoon, firstly, is to direct that the Deputy Commissioner of Taxation be joined as a respondent to both the applications; in each application, direct that the liquidator file and serve by 5 pm Adelaide time on 7 April - that is this Friday - the affidavits upon which he relies in opposition to the application for orders nisi, and to stand both applications over to 2.15 on 10 April before me in Canberra; to certify for counsel and reserve costs.

Has any counsel got anything to say as to that? Very well, I make the orders I have indicated. I will now adjourn until 10.15 am tomorrow morning.

AT 2.50 PM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 10 APRIL 2000