McKinnon v Commonwealth Bank of Australia [2005] FCA 1898

FEDERAL COURT OF AUSTRALIA

McKinnon v Commonwealth Bank of Australia [2005] FCA 1898 JEANETTE BEVERLY DAWN MCKINNON AND DONALD NEIL MCKINNON v COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) VID 1386 OF 2005 DOWSETT J 15 NOVEMBER 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1386 OF 2005

BETWEEN: JEANETTE BEVERLY DAWN MCKINNON

FIRST APPLICANT

DONALD NEIL MCKINNON

SECOND APPLICANT

AND: COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 15 NOVEMBER 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for leave to appeal be refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1386 OF 2005

BETWEEN: JEANETTE BEVERLY DAWN MCKINNON

FIRST APPLICANT

DONALD NEIL MCKINNON

SECOND APPLICANT

AND: COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

RESPONDENT

JUDGE: DOWSETT J

DATE: 15 NOVEMBER 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a decision of Marshall J declining to stay sequestration orders made against the estates of the two present applicants, Mr and Mrs McKinnon. A previous application for a stay was dismissed by Goldberg J. Leave to appeal from that decision was refused by Heerey J. Counsel for the respondent today has submitted that the present application for leave to appeal is incompetent because the matter was finally resolved by the decision of Goldberg J and the refusal by Heerey J to grant leave to appeal from that decision. I do not accept that view. 2 It is of the nature of the application for a stay that it is interlocutory. Indeed, that is the reason why leave to appeal from the decision is necessary. I see no reason why the present applicants may not apply for a further stay. That is what they did before Marshall J. Of course, where one judge of the Court has declined a stay, another will not lightly intervene other than where the circumstances have changed. It seems that this was the approach taken by Marshall J, in my view, correctly. 3 His Honour's attention was drawn to allegedly changed circumstances. He decided that they were not sufficient to justify revisiting the decision. It is that decision which is the present subject of the application for leave to appeal, not the earlier decision of Goldberg J. In those circumstances I see no reason to doubt the competence of the application for leave. 4 I turn to the merits of the application. For the sake of completeness, I will set out the relevant facts in a little more detail. Marshall J refused an application for a stay of sequestration orders made against the estates of the present applicants, Jeanette Beverly Dawn McKinnon and Donald Neil McKinnon, such orders having been made on 26 August this year. On 16 September 2005 the present applicants appealed against those orders. Those appeals have yet to be heard. On 23 September application was made for a stay of the sequestration orders pending the determining of the appeals. Goldberg J refused that application, and Heerey J subsequently refused leave to appeal from that decision. On 3 November a further application for a stay was made to Marshall J. His Honour declined the application. His Honour's reasons have today become available in unrevised form. Not surprisingly, it appears that his Honour placed substantial weight upon the fact that Goldberg J had previously refused a stay, and that an application for leave to appeal from that decision was refused by Heerey J. 5 However, subsequent to those decisions, one new matter had arisen, which was apparently relied upon by Mr and Mrs McKinnon in support of their application before Marshall J. It seems that at some stage in the rather lengthy history of this matter, Mr and Mrs McKinnon applied to set aside the bankruptcy notice upon which the petitions depended. That application was refused by a federal magistrate, and Mr and Mrs McKinnon appealed from that decision to this court. On 7 April 2005, Gray J dismissed that application. The McKinnons applied to the High Court for special leave to appeal from that decision. That application was apparently deemed to be discontinued as a result of a failure by the applicants to comply with relevant rules. However, following the proceedings before Goldberg J and Heerey J, the application for leave to appeal was reinstated. That was said to be a point of difference between the circumstances as they were at the time the decisions of Goldberg J and Heerey J, and the circumstances as they were before Marshall J. 6 As I understand it from the reasons of Marshall J, the proposed ground of appeal in the High Court concerns the fact that Gray J purported to exercise the appellate power of the Federal Court pursuant to the Federal Court of Australia Act 1976 (Cth) (the "Act"). There is to be some challenge to the validity of his so doing. This ground seems to have little substance. Marshall J treated the reinstatement of the application for leave to appeal as not being a material basis for distinction between the facts as they were before Goldberg J and as they were before him. 7 The decision to give weight to the earlier decisions, notwithstanding the changed circumstances, was discretionary. It has not been demonstrated that the discretion in any way miscarried. The history of the whole matter must be considered. The relevant judgment upon which the bankruptcy notice was based was given on 27 June 2001 in the Supreme Court of Victoria. Special leave to appeal was refused in the High Court on 3 October 2003. The applicants claim to be able to impugn that refusal of special leave because, as they allege, Hayne J held shares in the Commonwealth Bank, the relevant judgment creditor. The history of the matter since that time appears from what I have said above. It is almost impossible to imagine circumstances in which the bankruptcy notice would be set aside at this time in the history of the matter. 8 In those circumstances, I cannot see any likelihood of success on appeal from the decision of Marshall J. The application for leave to appeal should be refused. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.