Johnson & Ors, Ex parte - Re Von Doussa & Ors A9/2000 [2000] HCATrans 160 (10 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

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

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY AND ADELAIDE BY VIDEO LINK TO CANBERRA

ON MONDAY, 10 APRIL 2000, AT 2.16 AM

(Continued from 3/4/00)

Copyright in the High Court of Australia

______________

MR M.L. ABBOTT, QC: If your Honour pleases, I appear with MR N.J. ILES, in A6 of 2000. (instructed by Piper Alderman)

MR D.F. JACKSON, QC: If your Honour pleases, I appear with my learned friend, MR H.A.L. ABBOTT, for the applicants in matter No A9 of 2000. (instructed by Daenke O'Donovan)

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

MS S.J. MAHARAJ: If the Court pleases, I appear with my learned friend, MR D. WILLIAMS, in both matters for the Deputy Commissioner of Taxation, who was joined on the last occasion. (instructed by Australian Government Solicitor)

HIS HONOUR: You have put on the Liquidator's affidavit, I see, Mr Whitington.

MR WHITINGTON: Yes, your Honour. It is in virtually the same terms in each matter, your Honour.

HIS HONOUR: Yes, I see that, thank you. I will just ask your opponents. Mr Abbott and Mr Jackson, that affidavit contains detailed, but I would have thought, uncontroversial material. Does that mean that the affidavit record is complete now?

MR JACKSON: Your Honour, so far as we are concerned, our instructions do not permit us to contest the facts alleged in that affidavit and so far as we are concerned, the material is complete.

HIS HONOUR: Yes, thank you, Mr Jackson.

MR ABBOTT: We agree, your Honour.

HIS HONOUR: Thank you. In the light of that, gentlemen, I have some draft minutes that have come from Mr Abbott and Mr Jackson. They are substantially in the same form, are they, gentlemen? They seem to be.

MR JACKSON: Your Honour, the only additional matter, I think, is contained in paragraph (iv) on page 4 of Mr Abbott's - that relates to the State Jurisdiction Act and that, I think, has not been in our material. Our learned friend, on the last occasion, indicated that it would not be relied upon and it is a question, I suppose, of the course that the Court might take in relation to it because the issue does seem to arise, one would have thought.

HIS HONOUR: I think it should be left there.

MR JACKSON: Your Honour, we are content with an order in the same form.

HIS HONOUR: Yes, Mr Jackson, thank you. Now, gentlemen, the time scale, I think, comes to this. I think there will be real difficulty in squeezing the matter in on the week of 9 May, partly because it seems to me there are some nice questions that probably have to be explored to some degree as to the position of winding-up orders and the position of liquidators which are peculiar to this matter. The Court is, however, able to deal with these present matters on Tuesday, 13 June. To that end, I propose to adjust the draft order put forward by Mr Abbott to accommodate that and counsel will bear in mind that at the time they will be preparing their written submissions in these matters that they will have had the advantage of the transcript and the argument in the earlier matters which may be of some use in crystallising some aspects.

Now, looking at Mr Abbott's draft, I am not sure the Liquidator is a prosecutor yet, or is he just an applicant? I will ask the Registrar who knows all these things. I think he is just an applicant until there is an order nisi. So on the front page, Mr Saint should be just described as applicant.

Then in order 1 -and I will indicate what I am proposing, then I will ask counsel for any comments they wish to make before I make any orders. In the draft order 1 it would be, "made by Notice of Motion to a Full Court, to be returned for hearing on 13 June 2000, such Notice of Motion -"

Draft order 3, I would not be minded to, at this stage, enjoin the taking of any further steps in either action.

Then the directions: 4 would become 3, and 3 would say, "Those respondents opposing the orders sought shall file and serve on or before 22 May 2000" - which is a week or so after the conclusion of argument in the other matters - "written submissions identifying the facts and setting out the legal arguments upon which they rely."

Then 5 would become 4, "The applicant and any interveners shall file and serve on or before 5 June 2000" - which is a week before the hearing - "a written outline of their submissions."

The present paragraph 6 I will come back to. Then costs would be reserved as indicated and there would be the certification as indicated. What is the purpose of 6, Mr Abbott? Are Knox & Hargrave acting for the judicial respondents?

MR ABBOTT: Yes, they are acting for the judicial respondents, your Honour.

HIS HONOUR: They submitted on the last occasion, did they not?

MR ABBOTT: Yes, they did, but we thought it was appropriate to at least send a copy of what was being done to the lawyers acting for the judicial respondents and we would propose to continue that practice, subject to your Honour's views.

HIS HONOUR: All right. Then 6 will become 5, 7 would become 6. "Liberty to apply", I do not think you need really. If there are any problems it can just be relisted before me after you contact the Registrar. Then 9 will become 7. In particular, if there are any difficulties with the interveners getting in their written submissions as indicated by 5 June, the matter can be relisted before me to get matters hurried up. Now, does any counsel wish to say anything upon those proposals?

MR JACKSON: Your Honour, just one thing.

HIS HONOUR: Yes, Mr Jackson.

MR JACKSON: And that relates to the respondents and that is that although I think the heading to the documents does not specifically refer to the Deputy Commissioner of Taxation, we would treat that officer as such.

HIS HONOUR: Yes, that is quite right. The Deputy Commissioner should be added in compliance with last week's order as the ninth respondent. That should be done when it is engrossed.

MR JACKSON: Thank you, your Honour.

HIS HONOUR: Thank you, Mr Jackson. Mr Abbott?

MR ABBOTT: Nothing to add, your Honour.

HIS HONOUR: Mr Whitington?

MR WHITINGTON: Thank you, your Honour. Your Honour, we had initially thought that we would propose to your Honour that the order for filing submissions be reversed, but rather than that now, would your Honour be prepared to give us leave to file submissions in response, given that, in effect, our friends are dux litis in the proceeding and it is they who are attacking our standing.

HIS HONOUR: Yes. How soon would you get them on, though, after the 5th?

MR WHITINGTON: We could do it pretty quickly, your Honour, provided we have that leave. It may be your Honour could bring back the date of the 5th by a couple of days and give us, say, 5 days or so.

HIS HONOUR: Yes. I am just worried about interveners, that is all. You have all got an interest in not having this case blow out through late and voluminous interventions. Perhaps if order 4 read, "The applicant and any interveners file and serve on or before 1 June", which is the Thursday, and "any submissions in reply to the submissions delivered pursuant to order 4 be filed and served on or before Tuesday, 6th". I think that gives you enough time, Mr Whitington.

MR WHITINGTON: Thank you, your Honour. Can I raise one other matter with your Honour?

HIS HONOUR: Well, let me ask your opponents. Does that seem suitable, Mr Jackson and Mr Abbott?

MR ABBOTT: Yes, your Honour, as far as we concerned.

MR JACKSON: Yes, thank you, your Honour.

HIS HONOUR: Yes, Mr Whitington?

MR WHITINGTON: Your Honour, I think there has been correspondence which has been passed to various of the parties. It emanates from the funding lender and the insurer and, as I understand it, they have indicated to the applicants that in the event that this matter is referred to the Full Court, they want to reserve to themselves the right to apply to intervene, and I simply thought I should draw that to your Honour's attention.

HIS HONOUR: Well, if they want to do that I suppose they can apply. It will not be very happily received if they are not here today.

MR WHITINGTON: No. I thought I should give your Honour notice so your Honour will not be surprised if it does happen. If your Honour pleases.

HIS HONOUR: Yes, thank you. Mr Jackson and Mr Abbott, what do you say about the possibility of other parties?

MR JACKSON: Your Honour, so far as we are concerned, if any other person seeks to be a party, it is a matter for them to make out their case to the Court. Could we say, however, that the particular parties to whom my learned friend, Mr Whitington, has referred are ones who obviously have notice of the proceedings and no doubt if they wish to participate they would follow the timetable that has been laid down by your Honour.

HIS HONOUR: Yes; that is to say, submissions by 22 May.

MR JACKSON: Yes. Your Honour, if requested, we will provide copies of our papers in support of the application to them.

HIS HONOUR: Yes. Well, I will not give any directions to that effect but it will be indicated on the transcript, that any such application should be made on or before 22 May and be supported on or before 22 May by the written submissions that would be proffered.

MR JACKSON: Yes, thank you, your Honour.

HIS HONOUR: Yes, thank you, gentlemen. I will read the directions as amended following discussion with counsel:

3. Those respondents opposing the orders sought shall file and serve on or before 22 May 2000 written submissions identifying the facts and setting out the legal arguments upon which they rely;

4. The applicant and any interveners shall file and serve on or before 1 June 2000 a written outline of their submissions;

5. Any written submissions in reply to the submissions delivered pursuant to order 4 be filed and served on or before 6 June 2000;

6. A copy of this order and any affidavits and exhibits be served upon the first to seventh respondents by providing copies to Knox & Hargrave, Lawyers, 25 Grenfell Street, Adelaide, South Australia, Solicitors for the first to seventh respondents, on or before 18 April 2000;

7. Costs of the application be reserved to be determined by the Full Court;

8. Certify this is a proper matter for the attendance of counsel.

Is there anything else, gentlemen?

MS MAHARAJ: Just a few cosmetic matters, your Honour. In view of the statement which was made by Mr Jackson about adding the Deputy Commissioner of Taxation as the ninth respondent, I take it that we do not need a specific order for that?

HIS HONOUR: Well, it was made last week.

MS MAHARAJ: Yes, but this is in relation to the face of the proceedings. The other issue says, a cosmetic matter, if you could simply amend the appearance for the Deputy Commissioner of Taxation for today.

HIS HONOUR: In what respect?

MS MAHARAJ: The learned Solicitor-General is not leading me today, so it is just myself with Mr Williams.

HIS HONOUR: Yes, that is right.

MS MAHARAJ: So that is just a cosmetic matter.

HIS HONOUR: Yes, all right. Thank you.

HIS HONOUR: Very well. The matter will proceed as indicated, and the Court will now adjourn until 10.15 am tomorrow morning in Canberra.

AT 2.33 PM THE MATTER WAS CONCLUDED