Re Heerey; Ex parte Heinrich [2001] HCA 74

HIGH COURT OF AUSTRALIA

KIRBY J

IN THE MATTER OF AN APPLICATION

FOR A WRIT OF MANDAMUS AGAINST

PETER CADDEN HEEREY & ORS RESPONDENTS

EX PARTE STEPHEN GLENN HEINRICH APPLICANT

Re Heerey; Ex parte Heinrich

[2001] HCA 74

8 October 2001

A25/2001

ORDER

Application refused.

Representation:

No appearance for the respondents

The applicant appeared in person

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. KIRBY J. I have before me an application for an order nisi for the constitutional writ of mandamus directed to Justices Heerey, Branson and Lindgren, judges of the Federal Court of Australia ("the respondents").

The background facts

1. The applicant for relief is Mr Stephen Heinrich ("the applicant"). He seeks the relief pursuant to the s 75(v) of the Constitution. There is no doubt that the respondents are "officers of the Commonwealth" within that paragraph of the Constitution. They are therefore amenable to the writ[1]. 2. The applicant asks that the writ issue to command the respondents to vary the order of Mansfield J made in the Federal Court in Adelaide on 6 September 2000 to "order an account of mutual dealings be taken as requested of them on 28 May 2001". An additional order is sought that all public examination proceedings involving the applicant be stayed until a full and complete account of the mutual dealings is taken. 3. The respondents constituted the Full Court of the Federal Court of Australia. On 28 May 2001 that Court unanimously dismissed the applicant's purported appeal from a judgment of Mansfield J. By his judgment, Mansfield J ordered that a sequestration order be made against the estate of the applicant. The judge appointed a registered trustee as trustee of that estate. That trustee has not been named as a respondent to these proceedings. Nor has the creditor that instituted the original bankruptcy proceedings against the applicant in the Federal Court been named as a respondent. That creditor was the Commonwealth Bank of Australia ("the Bank"). The named respondents have submitted to the orders of this Court. 4. The facts recounted in the respondents' reasons in the Full Court of the Federal Court indicate that the relief which the applicant sought in the Full Court, and now seeks to revive in these proceedings, was founded on s 86 of the Bankruptcy Act 1966 (Cth) ("the Act"). That section provides (with emphasis added):