Jeans v Commonwealth Bank of Australia [2005] FCA 1049 (27 July 2005)

BANKRUPTCY – motion for leave to appeal from judgment on a separate question declining to go behind judgment debt on creditor’s petition – motion adjourned generally

Wren v Mahony (1971–1972) [1972] HCA 5; 126 CLR 212, referred to

JOHN ANTHONY JEANS v COMMONWEALTH BANK OF AUSTRALIA
NSD 1219 OF 2005

GYLES J
27 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1219 OF 2005

BETWEEN:	JOHN ANTHONY JEANS APPLICANT
AND:	COMMONWEALTH BANK OF AUSTRALIA RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	27 JULY 2005
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1219 OF 2005

BETWEEN:	JOHN ANTHONY JEANS APPLICANT
AND:	COMMONWEALTH BANK OF AUSTRALIA RESPONDENT

JUDGE:	GYLES J
DATE:	27 JULY 2005
PLACE:	SYDNEY

1 This is a motion for leave to appeal from a decision of Hely J (Commonwealth Bank of Australia v Jeans [2005] FCA 978). With some hesitation I have decided that I will not grant leave to appeal in this matter at this stage. I propose to stand the application over to enable progress of the matter before Hely J to be observed. In the event, for example, that the matter were adjourned for a lengthy period, then this motion can be revived and put before the appeals list judge. There may be other instances where that may take place as well. I will briefly mention the factors that have influenced my decision in no particular order.

2 A consideration in favour of the grant of leave is that this is not, in substance, a matter of practice and procedure. It disposes of the point in question in question finally and it may be seen as somewhat analogous in that respect to Wren v Mahony [1972] HCA 5; (1971-1972) 126 CLR 212. Next, the discretion involved is not a classic unfettered discretion that is used in the rather special sense explained by Barwick CJ in Wren v Mahony. Next, the separate question was proposed by the respondent to this motion. If, as is the case, leave is not granted it could be seen that the proposing of the separate question was entirely, in practice, in favour of that party. There is something to be said for the view that, having taken that course, the respondent should be bound by its logical consequences. Next, there will be an appeal as of right in due course. Although, as I mention later, that is somewhat of a two-edge sword. Lastly, in my opinion, it cannot be said that the appeal would be baseless or hopeless. It may have its difficulties, I do not underestimate those, but it seems to me that a judgment based upon forgery could well fall within the special categories isolated in the authorities.

3 Factors, however, against the grant of leave are, again in no particular order, as follows. Firstly, the point may be theoretical if, for example, the proceeding were dismissed for other reasons. Although I do not pretend to make a prediction, I do not rate that possibility terribly highly. Secondly, the point does not dispose of the whole case. Thirdly, it will disturb the orderly progress of the matter, one way or another, leading to costs and delay. Fourthly, if a sequestration order is made then there will be the ability to bring an appeal as of right which will enable this point to be raised and, of course, there is power in the Court to grant a stay in the meantime if thought appropriate. I mention by way of footnote to this, however, that the setting aside of sequestration orders is not without its difficulties, some of which were illustrated by the decision of Rangott v Marshall [2004] FCA 961; (2004) 139 FCR 14.

4 On the whole, and with some doubt, I have come to the view that the best course is to let the matter take its course before Hely J.

5 The motion is adjourned generally with liberty to restore on three days’ notice. Costs are costs in the motion and the transcript will record what I have said about that.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Counsel for the Applicant:	JM Ireland QC

Solicitor for the Applicant:	Robert H Butler

Counsel for the Respondent:	A Bell SC, D McLure

Solicitor for the Respondent:	JK O’Sullivan

Date of Hearing:	27 July 2005

Date of Judgment:	27 July 2005

1.	The motion be adjourned generally.
2.	Liberty to restore on three days’ notice.
3.	Costs are costs in the motion.

Federal Court of Australia

Jeans v Commonwealth Bank of Australia [2005] FCA 1049 (27 July 2005)