Finikiotis & Anor v Sandhurst Trustees Ltd [2004] HCATrans 48 (11 March 2004)

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Finikiotis & Anor v Sandhurst Trustees Ltd [2004] HCATrans 48 (11 March 2004)

Last Updated: 17 March 2004

[2004] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide Nos A40 of 2001 and A57 of 2002

B e t w e e n -

EFSTATHIOS FINIKIOTIS

CHRISSAFINA ZERVOS

Applicants

and

SANDHURST TRUSTEES LTD

Respondent

Summonses

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 11 MARCH 2004, AT 9.04 AM

Copyright in the High Court of Australia

MR E. FINIKIOTIS appeared in person.

MR D.G.W. HOWARD: Your Honour, I appear for the respondent. (instructed by Lynch Meyer)

HIS HONOUR: Is there any representation for the applicant in this proceeding?

MR FINIKIOTIS: Just myself, your Honour.

HIS HONOUR: Who is appearing for Dr Finikiotis?

MR HOWARD: He is appearing on his own behalf and he would also seek to represent Ms Zervos, the other applicant. I have no objection to him representing Ms Zervos.

HIS HONOUR: Yes, thank you very much, Mr Howard. Yes, Dr Finikiotis.

MR D. COLOVIC: Your Honour, to complete the picture, I am appearing for an interested party, Mr Scott, the trustee in bankruptcy of the applicants. It might be helpful to your Honour if your Honour knew that the trustee takes no position on the applications. Of most relevance to the trustee, of course, are the proceedings in A57/2002. (instructed by Kelly & Co)

HIS HONOUR: First of all, I do not have any notice that Mr Scott is anything to do with this case. The case I have before me is Finikiotis v Sandhurst Trustees.

MR COLOVIC: That is right, your Honour, but my client has been served with the materials. I am simply here to indicate to your Honour that he takes no position in respect of the matter, notwithstanding that he is the present trustee in bankruptcy. He has been the trustee in bankruptcy of the applicant since 2001. Of relevance to him are the proceedings in A57, in which proceedings the sequestration order upon which the applicants’ bankruptcy is founded is challenged.

The trustee, having been served with the materials, is here simply to remind the Court that there is a trustee in bankruptcy involved and that he is in a most peculiar position, where he has been trustee for now three years in circumstances where the bankruptcy is subject to challenge. It is his hope that the matter can be finalised as expeditiously as possible in order that either the administration of the bankrupt estates can be progressed in the interests of the creditors, or otherwise. He would wish to make no further submissions. It is not proper for him to make any submissions on the merits
and, indeed, he will be here today observing but will not seek to make any further submissions. In that event, I would ask to be excused.

HIS HONOUR: First of all, before you go, the position is that the trustee makes no submissions, but does he elect to proceed on the matters that Mr Finikiotis and Ms Zervos purport to bring on their own behalf in the High Court? My understanding is that, by the provisions of the Bankruptcy Act, section 116 and section 60(3), the consent of the trustee in bankruptcy is necessary if any fresh step is taken in the proceedings by a person who is the subject of sequestration orders.

MR COLOVIC: Quite, your Honour. The trustee has not made that election and we would say that section 60(3) operates insofar as these are proceedings that are caught by that section.

HIS HONOUR: Very well. You are excused. You can stay, of course, if you want to and observe the proceedings, but I note what you say. Thank you very much.

MR COLOVIC: Thank you, your Honour.

HIS HONOUR: Now, Dr Finikiotis, that seems to present something of a problem for the further prosecution of the proceedings without the consent and participation of the trustee. However, assuming that we can overcome that, just have a look at the summons that is before me. The summons asks that time for the completion of the application book be extended beyond 30 January 2004. Have you got that? That is the first paragraph of the summons.

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: Now, these matters have extended well beyond the time that the Court would normally permit and, indeed, on the last occasion that this matter was before the Court I made it clear, sitting in Adelaide on 15 August, that the proceedings should be adjourned to a date to be fixed but the contemplation was that the proceedings would be concluded before the end of last year. The third order was that:

If the applicants do not present that certificate by 1 October 2003, the matter be relisted by the Registrar on a date to be notified to the parties, if possible before the end of 2003, on the basis that, if the applicants are not present on that occasion, the Court will proceed to deal with the application on the papers.

Here we are, in March 2004, the trustee in bankruptcy wants the matter concluded, and the respondent wants the matter concluded, and the Court wants the matter concluded. You just cannot bring matters to the highest court in the land and mess us all around like this.

MR FINIKIOTIS: Yes, your Honour. In the orders, whereby you stated that “If the applicants do not present that certificate before 1 October” - - -

HIS HONOUR: Did you present a certificate that the matter could proceed in the Court? The matter was adjourned last August because a rather unsatisfactory certificate was presented, in the absence of the applicants, which suggested that they were not medically fit to present the applications. The Court gave the applicants the benefit of the doubt and adjourned the proceedings, but here we are, more than six months later, and the matter has still not been concluded. It is completely unsatisfactory. I do not know why I do not just strike all the matters out. It is completely unsatisfactory.

MR FINIKIOTIS: Your Honour, in October I could not present a certificate because the dizziness, the vertigo, was ongoing and I have to have a review in July of this year, but the vertigo has settled and I am able to come to the Court for any of the proceedings, so I do not believe there will be any problem from now on.

HIS HONOUR: Let me ask the Registrar when the next list is going to be heard from Adelaide. I am told by the Deputy Registrar that no date has been fixed for the next list in Adelaide and that it may not be until next August, which is when the Court normally would sit in Adelaide, which is a year after the matter was adjourned on the last occasion.

MR FINIKIOTIS: Yes, your Honour, but I have not been given any notice of it. I would have been ready to proceed on the A1 - - -

HIS HONOUR: I will just ask the Deputy Registrar again. I am told by the Deputy Registrar that there are not a large number of matters waiting hearing in the Adelaide list for special leave. However, if need be, this matter could be given a special date and the matter could be listed on a special date with notice to the parties in order that it could be disposed of.

As far as I am concerned, August of this year is totally unsatisfactory. In my opinion, this matter, if it is to be adjourned today, must be completed within a period of a month. It has dragged on far too long. It is completely unsatisfactory. Do you understand what I am saying?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: Would you be in a position to get your application book ready within the next two weeks?

MR FINIKIOTIS: Your Honour, I was hoping that – the reason that I have asked the Court with the summons is that Sandhurst and the mortgage manager still are holding documents which are - - -

HIS HONOUR: Well, I know that. Your second prayer in the summons asks that “Sandhurst and its Mortgage Manager make . . . discovery”. However, I have to explain to you that that is an order that I would not be able to make. The reason I am not able to make it is that the authority of this Court makes it clear that you cannot produce new evidence before the High Court of Australia. The High Court deals with cases on the basis of whatever evidence, good or bad, adequate or inadequate, has been before the courts below. We are not a court of trial. We do not act on new evidence. We act on the record. The record is established by whatever evidence has been placed before, in your case, the Supreme Court of South Australia and the Federal Court of Australia. So that making an order for the giving of discovery would only be relevant to securing new evidence, and that is something the High Court would not receive and therefore I would not make that order. Do you understand that?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: That is established in a series of cases beginning at the early part of the century, confirmed in Mickelberg v The Queen and confirmed most recently in one of the Eastman cases. So that that is clear authority of this Court and I am bound by it, and I would comply with it, and therefore I could not make the second order that you seek. So we are down to the first order which is that “The High Court Action A57 of 2002 to be reinstated”. Now, which one of the many applications is A57?

MR FINIKIOTIS: The last of the three, 2002.

HIS HONOUR: Just a moment. Have you seen the summary of submissions prepared by the respondent? There is an outline of submissions for this hearing today dated 9 March 2004 which the respondent says was couriered to you on 9 March. Did you receive that document?

MR FINIKIOTIS: I have that here, yes, your Honour.

HIS HONOUR: Now, without going into the detail of the document, it does have summaries of the applications and on page 5 it says that the application A57/2002 is your application for special leave to appeal against the orders of Justice North, sitting as the Full Court of the Federal Court of Australia, on the 27 February 2002. So A57/2002 is your application for
special leave to appeal against that decision of the Full Court of the Federal Court, is that correct?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: Now, when was that removed and what was the reason for its removal from the list? You are seeking reinstatement of it. When was it removed and why was it removed? I wonder if it would be more efficient if I ask Mr Howard to tell me his version and then you can tell me if you do not agree with anything that he says. Are you happy with that course?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: Yes, very well. Now, Mr Howard, you have heard what I am saying. You will remember the transcript of the proceedings before Justice Hayne and myself last August, when the purpose of the adjournment on that occasion was simply to protect the applicants in respect of any possible medical reason for their being absent on that day in Adelaide, but it was the clear intent that the matter should come back before a Full Court – and I am not sitting as a Full Court; I am sitting as a single Justice – but the purpose of the third order was that it should be returned before the Court, and optimistically I said, “if possible before the end of 2003”, so that the Court would proceed to deal with the application, if necessary, on the papers. By that I meant the Full Court, because a single Justice cannot dismiss the individual applications for special leave. They have to be dealt with by a Full Court.

Now, that does not create a problem in respect of the other applications, A1/2001 and the earlier application, which is A40/2001, but apparently A57/2002 has in some way been removed from the list. Could you tell me how that has happened?

MR HOWARD: With respect, your Honour, A40/2001 was never in the list, but speaking specifically about A57/2002, that is the appeal against the sequestration order and, effectively, against the judgment of his Honour Justice North. The chronology there is that Justice North delivered his decision on 27 February 2002. The application for special leave was filed on 2 May 2002, but no summary of argument was ever filed by the applicants, so that there has not been anything to which the respondent can respond.

Your Honour would find exhibited to the affidavit of Mr Finikiotis, filed in that matter and sworn on 15 December, certain correspondence from the Deputy Registrar. The first in the bundle provided to me is a letter dated 9 December 2003, the second paragraph of which refers to A57/2002. It refers, firstly, to a letter from Finikiotis of 9 July, which could be considered a further request for extension of time, which raised no new matters, and the second paragraph proceeds:

As no summary of argument and draft notice of appeal were filed and served on or before Friday 11 July 2003, this matter was deemed abandoned as of that date, as I had foreshadowed in my letter of 4 July 2003.

So that is the relevant background and situation with regard to A57.

HIS HONOUR: Well, you are telling me these things, but I do not have the file, I do not have those documents and I do not have an affidavit from your client deposing to that sequence of events.

MR HOWARD: With respect, it is not my client’s affidavit; it is the affidavit of Dr Finikiotis which was - - -

HIS HONOUR: I realise that, but I am - - -

MR HOWARD: - - - filed, as I understand it, in support of his summons in that matter.

HIS HONOUR: In support of the summons returned before me today, or in support of the - - -

MR HOWARD: Yes.

HIS HONOUR: - - - or in support of a summons earlier before the Court?

MR HOWARD: No, I am only aware of the one summons, your Honour. It is a summons which was issued by the Court on 3 March 2004.

HIS HONOUR: Yes, I have that summons and I have two affidavits, I think, annexed to it. One is an affidavit which is sworn on 15 December 2003 by Efstathios Finikiotis and the other - - -

MR HOWARD: Your Honour, it is the first affidavit to which I am referring.

HIS HONOUR: Well, where in that affidavit is there - - -

MR HOWARD: There is an exhibit to it comprising a bundle of documents, including correspondence from the Registrar.

HIS HONOUR: Yes, I have that.

MR HOWARD: I am unsure of the order of the documents in your Honour’s copy but the first - - -

HIS HONOUR: No, I have that. That is a letter of 9 December 2003 addressed by the Deputy Registrar in Melbourne to Dr Finikiotis and Ms Zervos.

MR HOWARD: Yes, your Honour, and I was reading from - - -

HIS HONOUR: The second paragraph of that contains the information on A57/2002 that you have just informed me of.

MR HOWARD: Yes, that is correct.

HIS HONOUR: By the way, I assume you have no objection to the reading of the affidavits filed on behalf of the applicant in this summons, is that correct?

MR HOWARD: No objection.

HIS HONOUR: You do not wish to cross-examine the applicants or either of them on the affidavits?

MR HOWARD: No, thank you.

HIS HONOUR: What do you say follows from the material in the affidavits?

MR HOWARD: My submission is that nothing of relevance follows from the material in the affidavits. As I understand that material, it is in support of the application in paragraph 2 of the summons for “true and proper discovery”, as it is phrased. The only reason why I rely upon the affidavit is the exhibit and the letter from the Deputy Registrar, to which I have referred, which succinctly sets out the position and explains why it is that Order 69A rule 13 applies to the matter.

HIS HONOUR: What is the position in respect of A40/2001, which is the application which is referred to in the first paragraph of the summons?

MR HOWARD: With regard to that matter, your Honour, application has been - - -

HIS HONOUR: Which order – that is the order from the Full Court of the Supreme Court of South Australia of 9 November 2001 dismissing the appeal from the earlier order of Justice Wicks, is it?

MR HOWARD: Correct, yes.

HIS HONOUR: What is the status of that application?

MR HOWARD: In that matter, all the relevant documents have been filed but the applicants have failed to prepare the relevant application book, that is, to compile the documents and put them in a proper order. If I might refer back to the affidavit in A57 and the letter from the Registrar of 9 May, the third paragraph of that letter sets out that the Registrar had directed that the application book be filed and served on or before 18 July 2003 and, over the page, the Deputy Registrar goes on:

Since matter A40/2001 required only the physical compilation of books and in view of the adjournment of matter A1/2001 by the Court on 15 August 2003, I now direct that the time for filing and service of the application book in A40/2001 be extended until 30 January 2004. In the event that this direction is not complied with, then this application shall be deemed abandoned pursuant to Order 69A rule 13 of the High Court Rules.

HIS HONOUR: Now, presumably the applicants have filed their summary of argument in support of the application for special leave in A40/2001.

MR HOWARD: That is so, and the respondent likewise.

HIS HONOUR: And you have filed your response. So all that is needed in that matter is the preparation of an index and the insertion of the reasons for judgment, presumably of Justice Wicks and of the Full Court, plus the two summaries of arguments, and that is really all that is necessary, is it not?

MR HOWARD: That is so.

HIS HONOUR: What I would be minded to do, subject to anything you have to say, is to grant a very short extension of time for the completion of that rather mechanical task and then to order that the special leave hearing in A1/2001 and A40/2001 be returned before the Court on the occasion of one of the future special leave hearings in Canberra, establishing a video link to Adelaide for that purpose, so that the whole matter would be dealt with within the space of a couple of months.

MR HOWARD: I do not object to that course, your Honour. It transpires that, in fact, the applicants had filed the summons in A40 as early as 8 January, but, for one reason or another, it was not issued by the Court until 3 March. So I am instructed to take a more lenient approach than originally indicated.

HIS HONOUR: Yes, thank you for that. It seems that the reason for the delay has been a misapprehension on the part of the applicants that they can get discovery in this Court in order to supplement the record, but I have already explained to the applicants that that is not a course that is permissible under the law – indeed, in the view of many members of the Court, under the Constitution. That being the case, the second prayer will have to be rejected, but, so far as the first one is concerned, I would be inclined to give a short extension, that matter now having been explained to the applicants, so that they can get their application book in A40 filed. Presumably, the application book in A1/2001 has already been filed, is that correct?

MR HOWARD: That is correct, your Honour.

HIS HONOUR: Then order the consolidation of those two books, so that the hearing can be fixed at the earliest possible date by video link to Adelaide in conjunction with some other special leave list. Just because we do not have a full list in Adelaide does not mean that it cannot be tacked onto one of the other special leave hearing lists that the Court has at some other time in the year.

MR HOWARD: That would be a very satisfactory course.

HIS HONOUR: Yes, very well. Now, I will go back to Dr Finikiotis and he can tell me whether he has understood everything that I have said to you. Thank you very much for your help.

MR HOWARD: Could I just clarify what your Honour’s intentions might be with regard to A57, or is it premature to make that request?

HIS HONOUR: I think A57 has been deemed abandoned. There is no process before me to breathe life into the dead and therefore I am not inclined to do it.

MR HOWARD: Thank you.

HIS HONOUR: But I will explain that to Dr Finikiotis and it may be necessary to come back to you.

MR HOWARD: Thank you, your Honour.

HIS HONOUR: Thank you. Well, now, Dr Finikiotis, you have heard what I have just said to Mr Howard. The position seems to be that in
A1/2001 everything is ready to go. Your application book is there, it is ready, and therefore all I have to do is find a hearing date for that one. So that is the least of our troubles, A1/2001.

A40 of 2001 presents a difficulty, but I am inclined to extend time for the filing of the application book, but that will have to be done within the space of, say, three weeks from today. It is a purely mechanical task. I am sure if you contact the Deputy Registrar in Melbourne, they will be able to help you. All you have to do is get the documents in A40/2001 together in the same way as you did in A1/2001. Do you understand what I am saying? It requires an index, the judgment of Justice Wicks, the judgment of the Full Court, your summary of argument, the respondent’s summary of argument and any reply by you to the respondent’s argument, and then they have to be put together. It is a very simple task. Do you think you could do that within the space of three weeks?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: So that will mean that you have A1 and A40 ready for hearing and I would be inclined to list the matter for the special leave hearing list in Canberra on 28 May with video link to Adelaide. So you would not have to come to Canberra, nor would Mr Howard, nor would the trustee. The matter would be listed on 28 May 2004. Do you understand that?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: But that is all conditional on your getting your special leave application book in A40/2001 ready by 1 April. Now, 1 April is three weeks from today. Do you think you can do that – Thursday, 1 April?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: It is a purely mechanical task. You just have to get the papers in correct order and I am sure the Deputy Registrar in Melbourne would give you some advice and help on how you do that. Do you understand what I am saying?

MR FINIKIOTIS: Yes.

HIS HONOUR: And then we have A1 and A40/2001 ready for hearing and that hearing would take place on 28 May. Now, that only leaves A57/2002 and that matter has been deemed abandoned. That was the application for special leave to appeal from Justice North’s order sitting as the Full Court of the Federal Court of Australia on appeal from Federal Magistrate Raphael.

Now, that matter has been taken out of the list and will not come before the Court. I do not have any process before me today to restore that matter to the list and, therefore, that would not be before the Court on 28 May 2004. I am not sure whether that would prove fatal to your application. That would have to be decided on 28 May 2004, but dealing only with the matters that are before me today, that is where that matter, A57/2002, stands. Do you understand what I have just explained to you?

MR FINIKIOTIS: Your Honour, I feel that A57/2002 is the last appeal that we have against that sequestration order.

HIS HONOUR: That is right.

MR FINIKIOTIS: It should not be abandoned because there was a request by myself and - - -

HIS HONOUR: But I think you were given until 1 July 2003 to file your summary of argument - - -

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: - - - and you did not file the summary of argument by 1 July 2003 and, indeed, you have never filed your summary of argument. It may be that you did not file your summary of argument because you were waiting for the discovery that you hoped this Court would order, but, as I have explained to you, we cannot order discovery because we cannot receive any discovered documents. We have to act on the record of the court below.

MR FINIKIOTIS: No, your Honour, I was waiting for the Supreme Court. There were matters in the Supreme Court in relation to discovery and in relation to the fraud pertaining to the documents relating to the instructions for the valuations. It was a fraudulent concealment and I was pursuing the other documents which are necessary to show the Court the exact sequence of events in relation to the fraudulent concealment of the second valuation and - - -

HIS HONOUR: I know you say that, but I have tried to explain to you that under the law of Australia and, in the view of some Judges of the High Court, under the Constitution of Australia, this Court cannot receive fresh evidence that was not in the courts below, so that even if you were to obtain discovery in the Supreme Court of South Australia or in the Federal Court, we could not receive that material because it is not in the record of the cases that led to the judgments that you are challenging in the High Court. In respect of your application to this Court for special leave, we can only act on the record of the evidence that was before the courts below when they made that judgment. That is the clear decision of the High Court. So that your pursuit of discovery, I am afraid, is futile, at least so far as this Court is concerned.

MR FINIKIOTIS: Excuse me, your Honour, what about if there is fraud in relation to documents that should have been submitted, does not the Court have inherent jurisdiction, as the other courts do, to rule on any matters in relation to the fraud and also with the - - -

HIS HONOUR: Well, there was a division of opinion in this Court as to whether this Court could receive further evidence. I took the view that the Court could, but the majority of the Court has taken the view, and reaffirmed it on several occasions, that it cannot. In the view of many members of the Court, it arises out of the fact that under the Constitution of Australia this Court can only hear appeals in these cases, and that appeals mean we have to act on the material that was before the court below. This is quite a complicated matter, I am afraid, but you can take it from me that the Court would not receive evidence on discovery that was not in the record of the proceedings in the Supreme Court of South Australia and the Federal Court. It will not receive that material. You have to win or lose your case in this Court on the basis of the transcript of the already established evidence in the two courts below. Do you understand what I have explained to you?

MR FINIKIOTIS: Yes, your Honour. Do you mean - - -

HIS HONOUR: That being the case, is there any point in your proceeding with matter No A57/2002 if you cannot get the additional evidence in the High Court?

MR FINIKIOTIS: Yes, very much so, your Honour, because there - - -

HIS HONOUR: That being the case, you have to apply to this Court, notwithstanding the deemed abandonment of A57/2002, to permit that application to be reinstated so that it can be heard with the other applications. I do not have any application before me to reinstate matter No A57/2002. I have an application to reinstate A40/2001, but I do not have an application to reinstate A57/2002.

MR FINIKIOTIS: Sorry, your Honour, in the summons before you of A57/2002 - - -

HIS HONOUR: No, the one I have before me, the first order that it seeks is that time for completion of the application book in A40/2001 be
extended, but I do not have an application that the time for completion of the application book in A57/2002 be completed.

MR FINIKIOTIS: There should be a summons for A57/2002.

HIS HONOUR: Is there a second summons, is there?

MR FINIKIOTIS: Yes.

HIS HONOUR: It would be nice to have the summonses. Yes, you are quite right, Dr Finikiotis. I do have a summons in A57. If we were to get all three applications on 28 May, you would have to move with great speed if I were to give you an extension in A57. You have not even prepared your summary of argument yet in A57.

MR FINIKIOTIS: Yes, your Honour, whatever you feel is necessary, I will try to do it. But I think I can complete those by 28 May, as you say, if that is - - -

HIS HONOUR: Well, 28 May is the deadline because that will be the hearing date. That would not be good enough. You would have to prepare your summary of argument by 1 April, so that the respondent could reply by mid-April and the matter could then be heard on 28 May. Would you be prepared to prepare your summary of argument by 1 April? Would you be in a position to do that?

MR FINIKIOTIS: It is a complicated - - -

HIS HONOUR: Well, it may be complicated, but the whole thing has gone on for too long. If you are not prepared to do that, I am certainly not prepared to extend the time in A57.

MR FINIKIOTIS: I will do it, yes, your Honour.

HIS HONOUR: Yes, just sit down for a moment. I will hear what Mr Howard has to say. Mr Howard, I realise that your client wants to get the matter over and done with, but it would seem logical to bring all applications, if we can, before the Court on the one day and not have any hanging around that could be the subject of later applications, even if we disposed of A1/2001 and A40/2001. Would your client, if it received the applicants’ summary of arguments by 1 April, be in a position to respond by the middle of April so that the hearing could proceed in A57 on 28 May?

MR HOWARD: Yes, your Honour.

HIS HONOUR: Do you wish to be heard in opposition to the revival of A57 on that strict timetable?

MR HOWARD: No, your Honour. We think it is better to have all the matters resolved at the one time as expeditiously as possible.

HIS HONOUR: Yes, that was the view that I was inclined to take too, having read the papers and read your submissions, for which I thank you, by the way. Well, thank you very much, Mr Howard. I will just tell Dr Finikiotis what I am inclined to do.

Dr Finikiotis, you are getting a great deal of leeway here because normally, when a matter has been deemed abandoned, it is quite difficult to breathe life into it. So that you would not want to expect that if you do not comply with the orders that I will make today that you will get a second chance. Do you understand that?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: So you will have to prepare your application book in matter A40/2001 by 1 April and you will also have to file your summary of argument in A57/2002 by 1 April. If you do not do each of those matters, then you cannot expect that there will be any further leeway at a later time. Do you understand that?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: Is Ms Zervos at Court today with you, or not?

MR FINIKIOTIS: No, your Honour.

HIS HONOUR: She is not there?

MR FINIKIOTIS: I am speaking for her - - -

HIS HONOUR: But she has asked you to represent her today, has she?

MR FINIKIOTIS: Sorry, your Honour?

HIS HONOUR: She has asked you to represent her today?

MR FINIKIOTIS: Yes, your Honour, yes.

HIS HONOUR: And you will inform her of the orders that I make today so that she is aware of the strict timetable which the Court is fixing?

MR FINIKIOTIS: Yes, I will, your Honour.

HIS HONOUR: For the reasons which have been expressed to the representative of the respondent and to Dr Finikiotis on behalf of the applicants, appearing by leave on behalf of the second applicant, Ms Zervos, the following are the orders that I make on the two summonses that have been filed:

1. In each summons, the application for an order for discovery addressed to the respondent and its mortgage manager is refused;

2. In the summons relating to application for special leave A40/2001, the time for the filing of the application book is, notwithstanding the Rules, extended to 1 April 2004. The applicants must by that day have filed and served on the respondent’s solicitors the application book in A40/2001;

3. Notwithstanding the Rules, the time for completion of the application for special leave in A57/2002 is extended. That application is reinstated. The applicant must by 1 April 2004 file and serve on the solicitors for the respondent the summary of arguments of the applicants in support of the application for special leave in A57/2002. The respondent must file and serve its summary of argument in response to the applicants’ arguments by 22 April 2004. Any reply of the applicants to the arguments of the respondents must be filed and served by Thursday, 6 May 2004;

4. The applications for special leave in A1/2001 and, if the foregoing orders are complied with, in A40/2001 and A57/2002 are listed in Canberra for hearing by a Full Court, with video link to Adelaide, on Friday, 28 May 2004;

5. The costs of the summonses will be costs in the proceedings listed on 28 May 2004; and

6. I certify for the appearance of counsel in Chambers.

Are there any other orders that you ask me to make, Mr Howard?

MR HOWARD: No, your Honour. Could I just clarify the latter part of order 3? Did you say Thursday, 21 April or Thursday, 22 April?

HIS HONOUR: It is Thursday, 22 April.

MR HOWARD: 22 April, thank you. I have no other application.

HIS HONOUR: Thank you very much. Now, Dr Finikiotis, did you take a note of what I have just ordered?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: It will not be difficult for you to get the application book in A40/2001 ready. I am sure if you speak to the Registry in Melbourne they will help you to do that. It will be important, however, that you get your argument ready in A57/2002 so that you must not lose any further time. If you lose further time and do not comply with the orders I have just made, then the other two applications will be deemed abandoned and the Court will simply proceed on 28 May to hear the application in A1/2001 and dispose of that. But it will be in your interests to get the application book in A40/2001 ready by 1 April and your summary of argument in A57/2002 also ready by 1 April. If you do that, and subsequently file the application book in A57/2002, then the matter will proceed before the Court. The Court will then hear all of your applications on 28 May and that would be in everyone’s interests: the interests of the applicants, the interests of the respondent and the interests of the Court. So do you understand that?

MR FINIKIOTIS: Yes, your Honour.

HIS HONOUR: And you will take all due steps to ensure that the applicants comply with the orders that I have just made?

MR FINIKIOTIS: I shall, your Honour.

HIS HONOUR: I will direct that a copy of the transcript of these proceedings be sent by post by the Registrar to each of the applicants at their address and to the respondent so that there will be no question of any misunderstanding concerning the orders that I have made; and so that the hearing on 28 May will proceed without further delay. Adjourn the Court now until 10.00.

AT 9.57 AM THE MATTERS WERE CONCLUDED