Theo v Official Trustee in Bankruptcy & Others B9/1997 [2000] HCATrans 720 (24 November 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B9 of 1997

B e t w e e n -

SOL THEO

Applicant

and

THE OFFICIAL TRUSTEE IN BANKRUPTCY

Respondent

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

ANTONY JAMES BENNETT and KENNETH PHILP

Second Respondents

Application for special leave to appeal

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 NOVEMBER 2000, AT 11.22 AM

Copyright in the High Court of Australia

________________

MR S. THEO appeared in person.

MR A.E. LYONS: May it please the Court, I appear for the second respondent in application B18 of 2000. (instructed by Bennett & Philp)

GUMMOW J: Yes.

MR LYONS: My client is not a party to application B9 of 1997. We are uncertain as to Mr Theo's position in relation to B9. If Mr Theo wishes to join my clients as parties to B9, my clients would consent to that course. They would be affected.

GUMMOW J: Yes, it looks like it. Yes, you heard that, Mr Theo?

MR THEO: Yes, your Honours.

GUMMOW J: Do you make that application?

MR THEO: Besides the fact that I agree with what he said, the gentlemen, but it was a resolution by the court that they had to be the parties - - -

GUMMOW J: No. Just tell me at the moment, do you make that application?

MR THEO: Yes, your Honour.

GUMMOW J: Very well. The application then is granted to join as respondents to the first of these two applications Antony James Bennett and Kenneth Philp. I should indicate that I had a certificate from the Deputy Registrar that he has been informed by the Australian Government Solicitor, the solicitor for the first respondent, that is to say the Official Trustee in Bankruptcy in both matters, that the Official Trustee will not be appearing but seeks to rely on the written summary of argument. Yes, Mr Theo.

MR THEO: Your Honours, I am sure that I do not have to reiterate all the details that you have there in the submissions and affidavits and, in a nutshell, what it amounts to is that on 1 August 1996 the big blunder took place and a decision - - -

GUMMOW J: Well, perhaps the first thing you should deal with, though, is the delay in bringing the proceedings into this Court.

MR THEO: Yes.

GUMMOW J: These matters in the Federal Court, in the Full Court, were some time ago. Yes.

MR THEO: I am sorry, your Honour. There was a case that came to the High Court and the High Court decision was such that at any time the parties could come back. So it is either/or. It is either the B18 of 2000 or the B9 of 1997 that should be considered in order to hear the injustices that were done to myself.

GUMMOW J: Yes, very well. Why do you not proceed and deal with the substance of the matter?

MR THEO: Right. The situation is that on 1 August 1996 a big injustice took place which, as a result, it has snowballed by other injustices and carried on and carried on and carried on until such time as this particular decision that was handed by the honourable Justice Heerey was set aside, but it was set aside in such a way, through no fault of the courts but through absolute fault of mine by not requesting that the setting aside should be as from its inception, and I think the legal term is ab initio.

So what it amounts to is that in page of my submissions - in page 147, your Honour, I indicate what orders are sought. Of course, in all of the other material mention is made that the other basic order that has to come out is that the order was set aside - the order of 1 August 1996 has to be set aside as from the day of its inception. Once that happens, the other orders that I have mentioned in page 147 would all, without hassle, fit in.

Now, I wish to guide the honourable Court to page 148. This a reference to the first respondent. In section 1, the last section of section 1, he says:

the decision sought to be made subject of the appeal is plainly correct.

So it is not silly me who says what I am saying, but also the first respondent, the learned barrister, says so. So I am sure and I am optimistic that the honourable Court will appreciate such stance of my case. In regard to the second respondents' point in page 147, I think it is line 15(b) - no, it is point 15(b) where he states:

the applicant does not identify any error in those decisions.

This is absurd, your Honours, because the fact of the matter is that the biggest error is the one that took place on 1 August. So, I mean, we cannot cancel part of that order and allow the other part to fall on my head. The situation is that, if I may use a colloquial expression, the error that was committed on 1 August 1996 could not - there is no such a thing as partly pregnant. The pregnancy was pregnancy and the court decided that it has to be set aside.

So, as far as I am concerned, that is the most flagrant error in the whole set up. Also, if I may draw your Honours' attention to page 109 where her Honour Justice Gaudron says, in her comments on line 15 to 20, and that is she agree on the prima facie logic and fairness of my request. So I do not have to read that, your Honours, do I?

GUMMOW J: Yes.

MR THEO: And that was a submission that was identical to what I am submitting at today's hearing, your Honours. So the essence of the matter is that it is unfortunate that we have various courts coming up with conflicting decisions and, if I may repeat myself, very basically it is not only the orders that are sought in page 147 should be granted but also the setting aside of the original unfortunate decision of 1 August should be set aside as from day one. That is basically, your Honour - I am sure you have had the opportunity to read all the other material and I should not take any more of the honourable Court's time.

GUMMOW J: Yes, thank you, Mr Theo. We will hear from Mr Lyons.

MR LYONS: Your Honours, in neither application is a special leave issue raised. The core of the applicant's complaints are that he wishes to reventilate costs arguments, interlocutory costs arguments, that he has lost at both levels below. In application B9 of 1997 he seeks to traverse a costs order made 2 September 1996. It was an interlocutory costs order. It came before this Court on 5 December 1997. That is the - - -

GUMMOW J: Yes. Yes, go on.

MR LYONS: It was referred back to the Full Court of the Federal Court to address a costs aspect. That has now been done.

GUMMOW J: Yes. Now, did that reconsideration take place?

MR LYONS: It did, your Honour, on 23 July 1998. The effect of - - -

GUMMOW J: That is at page 54?

MR LYONS: It is, your Honour.

GUMMOW J: Yes.

MR LYONS: The effect of the orders made 23 July 1998 was to lead to the result of there being no order as to costs in relation to the interlocutory hearing of 2 September 1996. I do not understand the present applicant to seek to vary that order in any way. That being the case, the relief sought in B9 of 1997 is fully exhausted because that special leave application sought only to attack that one costs order of 2 September 1996. There is nothing left in terms of that application.

The applicant has filed a second application for special leave. That is B18 of this year. In that application he seeks to attack a further costs order, again interlocutory, one made against him on 3 October 1996. He sought leave to attack that costs order from Justice Kiefel on 20 December 1996. He required that leave because it was an interlocutory order and he needed leave under sections 24 and 25 of the Federal Court Act before he could maintain an appeal against an order of that kind.

On the applicant's own application Justice Kiefel refused him leave to appeal from that costs order of 3 October. Having consented to the dismissal of that application for leave to appeal, the applicant had a change of heart and then proceeded to appeal to the Full Court of the Federal Court and that appeal was heard on 28 April 1997. That Full Court refused to entertain the appeal and they did so on several grounds. Firstly, they pointed to the fact that his application for leave to appeal, being the one brought before Justice Kiefel on 20 December 1996, had been dismissed with no order as to costs between the applicant and my client, the second respondents, and that that had happened essentially at the request of the applicant.

Secondly, they pointed to the terms of the Federal Court Act which said that there was no right of appeal against such a refusal by Justice Kiefel on 20 December 1996. Thirdly, they drew attention to the absence of any substantive reason why leave to appeal should be granted, even if the application was competent. In other words, there was simply an interlocutory costs order with which the applicant was dissatisfied. In those circumstances, your Honours, there is, with respect, no special leave issue raised in this morass of litigation.

GUMMOW J: No, we do not need to hear you any more, Mr Lyons.

MR LYONS: Thank you, your Honours.

GUMMOW J: Mr Theo, do you wish to say anything in reply?

MR THEO: What I wish to draw your Honours' attention is that the fact of the matter, due to my ignorance I submitted for a second time in the Federal Court something that was - Full Court something that was rejected by another Full Court. So this is where the confusion, as far as things are concerned, and basically what it amounts to is that I raised the point of ab initio at the Full Court and it is recorded in the documents that are there that because I did not submit a proper motion to that effect, that contention could not be examined.

So now here I am hoping that I have everything spelt out the correct way and, even so, I notice that in the orders sought, although it is included in all the other paperwork, the ab initio aspect is not part of the orders sought and I hope I would not be penalised for that, but because it is quite clearly, and the other party is aware of the situation, that is what I am seeking for. The first respondent plainly, as I mentioned before, does not oppose the situation, subject to, as they mention in their submission that I referred to before, my appeal being granted. The term I think is not - I am not expressing myself in the correct terminology, but leave to appeal I think. So basically, your Honours, I do not have anything else to add.

GUMMOW J: Yes, thank you, Mr Theo.

The applications concern orders that the Federal Court made as long ago as 1 August 1996. Most, if not all of the orders, are orders as to costs. Each of the orders has been considered on appeal to the Full Court of the Federal Court. We see no arguable case of error by the Full Court.

Extension of time is required in this Court. The extension should be refused on the grounds that the applications for special leave hold no prospect of success at all. Accordingly, the extension of time is refused and that means the applications, necessarily, must be dismissed and, in view of what is said in the written submission, dismissed with costs.

The Court will adjourn to reconstitute.

AT 11.40 AM THE MATTERS WERE CONCLUDED