Satchithanantham v National Australia Bank Ltd [2010] HCATrans 78 (25 March 2010)

Last Updated: 20 April 2010

Replacement Transcript

[2010] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S265 of 2009

B e t w e e n -

HEMALATHASOTHYRANJINI SATCHITHANANTHAM

Applicant

and

NATIONAL AUSTRALIA BANK LTD (ABN 12 004 044 937)

Respondent

Application for special leave to appeal

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 MARCH 2010, AT 2.06 PM

Copyright in the High Court of Australia

MS H. SATCHITHANANTHAM appeared in person.

MS N.C. BEARUP: May it please the Court, I appear for the respondent. (instructed by DibbsBarker Lawyers)

HIS HONOUR: This special leave application can be fixed for hearing on 23 April. It seems therefore appropriate that the operation of the orders be stayed until 30 April. Do you have any problem with that, Ms Bearup?

MS BEARUP: Your Honour, I have received a letter indicating that reasons on the application are to be handed down on Wednesday the 31st.

HIS HONOUR: Yes, that will not take place if those orders I foreshadowed are made.

MS BEARUP: Yes.

HIS HONOUR: So putting that on one side, do you have any problem with what I have proposed?

MS BEARUP: I am sorry, if you - - -

HIS HONOUR: Let me approach it this way. When a litigant in person applies for special leave it can be decided on the papers or oral argument can take place. At one stage it was thought desirable to determine the matter on the papers. The judges who arrived at that conclusion have now decided that there should be an oral hearing. The proposition is that the oral hearing be on the next available day, which is 23 April, and that there be a stay of the orders of the courts below until 30 April in order to permit that special leave application to take place.

MS BEARUP: Yes. I would need to obtain some instructions in relation to that.

HIS HONOUR: How long would that take?

MS BEARUP: Five minutes I am advised.

HIS HONOUR: When you have them, perhaps you can let the associate know and I will return.

MS BEARUP: Thank you.

HIS HONOUR: The Court will now adjourn briefly.

AT 2.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.25 PM:

MS BEARUP: Thank you for your indulgence, your Honour. My instructions are to consent to an adjournment pending the hearing of the special leave application, but I wish to clarify some issues in relation to the application that will be dealt with on that day. I understand that the application that is before you today also seeks some leave to file an amended application. Some pro bono assistance was sought in relation to that exercise and did not result in a barrister considering it appropriate to take on the matter and not a matter appropriate to take on.

HIS HONOUR: I can clarify this. Paragraph 2 of the summons seeks a grant of what are called interim orders 1 and 2 of the special leave application. Those are orders which in terms ask for a staying of all of the orders in the courts below. The important one, of course, is the writ of possession. What will be argued on 23 April is simply the application for special leave. If any other application is made on that day it will be dealt with either on that day or whenever.

MS BEARUP: Yes.

HIS HONOUR: All I am doing today is fixing the special leave application for oral hearing on 23 April, staying the orders of the courts below until 30 April, the idea being that if the special leave application fails, then there will be a few days for an orderly resolution of the problem. If it succeeds, then the stay will be extended until the appeal is heard. Does that clarify it?

MS BEARUP: Yes, thank you, although I do believe that there is some hope on the part of Mrs Satchithanantham to file some amended application and if that was intended to be the case, then we would ask that that be done well prior to that date so we are aware of what we were facing.

HIS HONOUR: I think I would prefer not to fix any time of that kind. I think it is best just to let events resolve themselves. If something is filed that it is not possible for you to deal with, then there will have to be an adjournment, but best not to encourage hopes.

MS BEARUP: Yes. The other issue is in relation to the actual terms of the stay. There are a number of judgments in the courts below. If the orders could be specifically framed - - -

HIS HONOUR: I think that this is causing us – what is going to happen between now and 30 April of any interest in relation to those orders, except either the execution of the writ of possession or its non-execution? It will simply take too long, will it not, to work out which really need to be stayed and which do not need to be stayed?

MS BEARUP: No, it would just simply be an order staying the judgment of her Honour Justice McCallum that was handed down in March 2009. The only reason why I raise this issue is that there were also orders made in the courts below against Mr Satchithanantham, in particular, a costs order, and that has been acted upon and is the subject of bankruptcy proceedings, but I understand from the material that was served upon us today in relation to this application that that is something Mr Satchithanantham still seeks to agitate and I would just request that - - -

HIS HONOUR: What steps are going to be taken between 26 March and 30 April in relation to any bankruptcy proceedings?

MS BEARUP: Mr Satchithanantham is already bankrupt and there may be actions taken by the trustee pursuant to that bankruptcy and he might argue that the costs order which was – I am just concerned that the issue before us is one of the judgment of her Honour Justice McCallum and the orders for possession handed down in March 2009 and the stay should only be granted in respect of those orders.

HIS HONOUR: Have you got a copy of Justice McCallum’s orders?

MS BEARUP: Yes. I am sorry, they are not stapled, but - - -

HIS HONOUR: That is all right, I have got a copy. Are these the orders which – there are four of them – the first of them says the defendant give the plaintiff possession of the whole of the land, et cetera?

MS BEARUP: Yes, these are the orders.

HIS HONOUR: Which ones do you say should be stayed? If any are to be stayed, which are the ones that ought to be stayed?

MS BEARUP: We consent to a stay in relation to all of those orders pending the hearing of the special leave application.

HIS HONOUR: Very well. I inform the parties that the indication that a disposition of the special leave application would take place on 31 March 2010 is withdrawn. I fix the hearing of the special leave application for oral argument on 23 April 2010 and I stay the operation of the orders of Justice McCallum which were made on 3 March 2009, entered on 4 March 2009, until 30 April 2010. The Court now adjourns.

AT 2.31 PM THE MATTER WAS ADJOURNED