Cummings v Claremont Petroleum NL [1996] HCA 19

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron and McHugh JJ Cummings v Claremont Petroleum NL

ORDER Appeals dismissed with costs

Cur adv vult

The following written judgments were delivered:—

20 June 1996 Brennan CJ, Gaudron and McHugh JJ.

The appellants are bankrupts. Sequestration orders were made against the estate of Mr Fuller on 20 May 1993 and against the estate of Mr Cummings on 21 May 1993 respectively. At those dates, a judgment had been reserved by von Doussa J in the Federal Court in an action brought by the present respondents against the two appellants and others. On 10 June 1993, his Honour pronounced judgment in favour of the present respondents [1] against, inter alios, Messrs Cummings and Fuller for damages assessed at $44,450,000. His Honour found Messrs Cummings and Fuller liable in tort for conspiracy and deceit, for breaches of their duty as directors of Beach Petroleum, for contravention of s 229(1) of the Companies (South Australia) Code and for contraventions of provisions of the Fair Trading Act 1987 SA. Then, pursuant to s 58(3) of the Bankruptcy Act 1966 Cth (the Act) von Doussa J gave the present respondents leave to proceed in the action "to the point of entering judgment". Judgment was entered against the appellants on 15 June 1993.

1. The judgment was for Beach Petroleum NL only but it seems that Claremont Petroleum NL (which was the parent company of Beach Petroleum NL) was entitled to relief that, for reasons that are immaterial, was taken by Beach Petroleum NL. Both companies were joined as respondents to the appeals and both applied to the Federal Court for an order setting aside or dismissing the notices of appeal to that Court.

On 1 July 1993, Messrs Cummings and Fuller each filed notices of appeal against this judgment to the Full Court of the Federal Court. An appeal lies against a judgment of the Federal Court constituted by a single judge pursuant to s 24 of the Federal Court of Australia Act 1976 Cth. The respondents thereafter moved the Full Court for orders that the notices of appeal be set aside or dismissed. The Full Court by majority (Gummow and Whitlam JJ, Hill J dissenting) dismissed the appeals as incompetent. These appeals are brought by special leave against that decision.