McFarlane v National Australia Bank [2004] HCATrans 561 (10 December 2004)

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McFarlane v National Australia Bank [2004] HCATrans 561 (10 December 2004)

Last Updated: 18 January 2005

[2004] HCATrans 561

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M179 of 2002

B e t w e e n -

MALCOLM JAMES McFARLANE

Applicant

and

NATIONAL AUSTRALIA BANK LIMITED

Respondent

Office of the Registry
Melbourne No M180 of 2002

B e t w e e n -

MALCOLM JAMES McFARLANE AND JILL ELIZABETH McFARLANE

Applicants

and

NATIONAL AUSTRALIA BANK LIMITED

Respondent

Office of the Registry
Melbourne No M181 of 2002

B e t w e e n -

MALCOLM JAMES McFARLANE AND JILL ELIZABETH McFARLANE

Applicants

and

MICHAEL MAIN

First Respondent

RUSSELL KENNEDY

Second Respondent

NATIONAL AUSTRALIA BANK LIMITED

Third Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2004, AT 11.10 AM

Copyright in the High Court of Australia

MR M.J. McFARLANE appeared in person.

MR G.H. GARDE, QC: If the Court pleases, I appear with my learned friend, MR A.T. SCHLICHT, for the respondents in each of the matters. (instructed by Russell Kennedy)

GUMMOW J: Now, Mr McFarlane, you wish also to appear for Mrs McFarlane?

MR McFARLANE: That is correct, your Honour.

GUMMOW J: Very well. Yes, well you have that leave. Yes, Mr McFarlane?

MR McFARLANE: Firstly, I would just like to say that I had these documents couriered to me yesterday as we were about to leave to come down here. We have not had a great deal of time to go through them, as you can appreciate. It was sent to an address – there was an old address where we were evicted from 18 months ago. It is dated 8 December so I just thought I would make a note of that, it makes it a bit difficult to - - -

GUMMOW J: Yes. Just give me a minute. What is the position with these documents, Mr Garde?

MR GARDE: The position in relation to the documents is that the documents consist of simply the list of authorities for the respondent, and the supporting documents contained within them. That was the material that was delivered.

GUMMOW J: That is this file that we have?

MR GARDE: It is, your Honour. There is, we apprehend - - -

GUMMOW J: It is quite a bit of reading.

MR GARDE: Yes.

GUMMOW J: Even for one of us.

MR GARDE: I think there are the five items, your Honour. We were advised that there was no obligation under the practice statement to deliver this material, but we thought that it should be delivered in any event.

GUMMOW J: Yes, well that is true. Yes, Mr McFarlane.

MR McFARLANE: Well, basically what we are here for today is to seek leave - - -

GUMMOW J: Well, there is a judgment of the Victorian Court of Appeal, is there not?

MR McFARLANE: Sorry?

GUMMOW J: There is a decision of the Victorian Court of Appeal?

MR McFARLANE: Yes, we had an application – we had to seek leave to appeal out of time, your Honour.

GUMMOW J: Yes.

MR McFARLANE: That is one of the matters we are addressing, the fact that the two documents were lodged and one of them should have been correct, your Honour. It was all to do with the cover sheet, that is all, and we were just denied our complete right to have an appeal on the fact that it was not issued on two separate cover sheets. But what we are saying is that one of those was 6450 or 6451, one of them was correct, and we were denied our right to have an appeal. We have never had it, and statute law takes precedence over rules, from Williams Civil Procedure Volume 2.

All I will say – just going back to the appeal that we never had - both matters were heard for eight years together. The judgment was handed down on one judgment under the two numbers, and when we go to appeal, the Court of Appeal knocked us back because we did not have the correct cover sheet sent to the other side, your Honour. But as I said, either one was right, whichever one it did not matter. We should have had a right to appeal either one or the other because that was done correct, your Honour. So basically, that is where we stand, that is what we are appealing on, and we seek leave to have the matter heard.

GUMMOW J: Thank you, we will see what Mr Garde has to say. Yes, Mr Garde.

MR GARDE: Your Honour, what transpired in the Court of Appeal, and the reasons for the decision of the Court of Appeal are set out from application book 14 onwards, is that the court assumed in favour of the current applicants, that an extension of time could be granted, but was of the view that there was no merit in the appeal.

GUMMOW J: Is that shown at page 18 of the application book we have, line 18?

MR GARDE: It is, your Honour.

GUMMOW J:

As Ormiston, J.A. has already indicated when the matter was last before us, the failure of the applicants to serve proper notices within time was unfortunate but should not in the circumstances lead to a disadvantage to them. Accordingly, it is to the merits of the applications that attention has been directed.

MR GARDE: That is so, so the Court of Appeal was concerned as to the merits of the appeal and the Court will see it at the foot of application book 18 in the last paragraph:

They consist essentially of misconceived propositions of law and allegations of fact in respect of which there is no scintilla of support.

So that it was the absence of any merits in the appeal that led the court in its discretion to decline to grant the leave which was sought, the court assuming the issue that the applicant has just mentioned in his favour.

GUMMOW J: Yes, thank you. Anything in reply, Mr McFarlane?

MR McFARLANE: Yes, what I could say to that, that the application to appeal out of time was not a complete list of all the evidence and everything we had. There would have been a lot more that would have went into it had we had a proper appeal, your Honour.

GUMMOW J: Thank you. We will take a short adjournment.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.21 AM:

GUMMOW J: The applicants, Mr and Mrs McFarlane, speaking through Mr McFarlane, complain that they did not receive in the Victorian Court of Appeal a substantive hearing of applications for leave to appeal. Mr McFarlane submits that the Court of Appeal refused a hearing on the substantive merits because of a technical deficiency in the court process. However, the reasons given by the Court of Appeal, to which we referred in the course of oral argument this morning, show that it did proceed to consider the merits.

We are not satisfied that there are any prospects of success in an appeal against the decision of the Court of Appeal on the merits. Accordingly, the applications for special leave which have been heard together are refused with costs.

We will adjourn to reconstitute.

AT 11.22 AM THE MATTERS WERE CONCLUDED