Ebert v Union Trustee Company of Australia Ltd [1961] HCA 29; (1961) 105 CLR 327 (23 May 1961)

HIGH COURT OF AUSTRALIA

EBERT v. THE UNION TRUSTEE CO. OF AUSTRALIA LTD. [1961] HCA 29; (1961) 105 CLR 327

Privy Council

High Court of Australia
Dixon C.J.(1), Kitto(1), Taylor(1), Menzies(1) and Windeyer(1) JJ.

CATCHWORDS

Privy Council - Application for special leave to appeal from judgment of High Court - Practice of High Court - No stay of execution of High Court judgment pending application to Privy Council except upon special or peculiar grounds - Bankruptcy - Sequestration order - Adjournment of appeal against sequestration order pending presentation of petition to Privy Council - Service of amended petition - Proof of non-payment of debt to large company - Date of act of bankruptcy - Judge's discretion to dismiss petition - The Constitution (63 & 64 Vict. c. 12), ss. 73, 74 - Bankruptcy Act 1924-1959 (Cth), ss. 52, 53 (2).

HEARING

Sydney, 1961, May 4, 5;
Melbourne, 1961, May 23. 23:5:1961
APPEAL from the Federal Court of Bankruptcy.

DECISION

May 23.
The COURT delivered the following written judgment:-
This appeal is from an order of the Federal Court of Bankruptcy made on 20th The act of bankruptcy upon which the order was founded is failure to comply on or before 29th May 1959 with the requirements of a bankruptcy notice dated 5th December 1958. The appellant had applied unsuccessfully to the Court of Bankruptcy to set aside the bankruptcy notice. The order of that Court refusing to set aside the notice was made on 29th May 1959, when, the notice still standing, the act of bankruptcy became complete. But the appellant appealed to this Court from the order dismissing the application to set aside the bankruptcy notice. That appeal was heard on 26th May 1960. Judgment was reserved but when it was about to be given counsel for the appellant sought an opportunity to submit further arguments and he obtained leave to state what he desired in writing. This occupied some time but the deferred judgment was ultimately delivered on 9th August 1960. The reasons for the judgment are reported (Ebert v. The Union Trustee Co. of Australia Ltd. [1960] HCA 50; (1960) 104 CLR 346 ) where the facts and contentions sufficiently appear. The appeal was dismissed. When judgment was pronounced counsel for the appellant asked the Court to enlarge the time limited in the bankruptcy notice. He was told that any application must be made on notice. A notice of motion was accordingly given but it was stood over to the hearing of the present appeal, the sequestration order having been made in the meantime and this appeal therefrom having been instituted. (at p330)

2. As to the application to this Court to extend the time limited in the bankruptcy notice, it is enough to say that it was not a matter covered by the former appeal, that it was a matter entirely for the Court of Bankruptcy and that the Court of Bankruptcy declined to extend the time limited in the notice and treated the act of bankruptcy as complete on 29th May 1959. (at p330)

3. On the present appeal being called on for hearing counsel for the appellant sought an adjournment of the appeal sine die pending an application which he said the appellant contemplated making to Her Majesty in Council for special leave to appeal against the order of this Court pronounced on 9th August 1960 dismissing the appeal against the order of the Court of Bankruptcy refusing to set aside the bankruptcy notice [1960] HCA 50; (1960) 104 CLR 346 . It is not easy to understand why the appellant should desire the present appeal so to be adjourned: for it would mean that the order of sequestration would stand notwithstanding any result of her application for special leave to appeal to the Privy Council. But in any case it is impossible consistently with the settled practice of this Court to entertain such an application for an adjournment on the ground that it was intended to present a petition for special leave to appeal from a judgment of this Court. Section 73 of the Constitution which confers appellate jurisdiction upon this Court in the cases it defines declares that the judgment of the High Court in all such cases shall be final and conclusive. But this does not impair any right which the Queen may be pleased to exercise by virtue of her prerogative to grant special leave to appeal from the High Court to Her Majesty in Council: s. 74. From the beginning the rule has been laid down that the High Court will not grant a stay of execution of one of its own judgments pending an application to the Privy Council for special leave to appeal from that judgment unless there were some special or peculiar grounds: see McLaughlin v. Daily Telegraph Newspaper Co. Ltd. [1904] HCA 51; (1904) 1 CLR 243, at p 283 ; McBride v. Sandland (No. 2) [1918] HCA 59; (1918) 25 CLR 369 . The principle involved in this rule plainly extends to such an application as the present. For the principle is that, according to the ordinary course of the administration of justice in and for the Commonwealth of Australia, the judgment of this Court is final. The exercise of the prerogative to admit an appeal to Her Majesty in Council is an exceptional measure governed by special considerations: it would not be in accordance with the position which this Court occupies under the Constitution for it to proceed otherwise in the performance of its duties than as a final court of appeal. Certainly this is no case calling for any departure from that principle. Accordingly the Court declined to adjourn the appeal and proceeded to hear it. (at p331)

4. The grounds upon which the appeal was based contained little or nothing of substance. It appeared that the petition in its original form disclaimed any security for the debt, which was one for the costs of an action brought by the plaintiff in the Supreme Court of Queensland against the respondent The Union Trustee Company of Australia Limited: the action was dismissed with costs. Afterwards the company was advised that the share to which the appellant is or might be entitled in certain assets of the estate administered by the respondent Trustee Company formed or might form a security for the debt. And on 22nd September 1960 the respondent obtained leave from the Court of Bankruptcy to amend the petition accordingly. The amendment was not opposed but the respondent was given an adjournment of one month. In giving leave to amend, Clyne J. said that was on condition that the amended petition and an affidavit in support were served on the debtor. The documents were not served personally on the debtor: they were simply left at the office of her solicitor. However she gave notice of intention to oppose the amended petition and she did not include in the notice any objection on the ground she had not been served in compliance with the judge's direction although the point was raised at the hearing. It is to be noticed that the original petition had been served and the point is not that there was not service according to the rules but not service in compliance with a direction of the judge. Clearly it is a point which cannot avail. There was an appearance for the appellant on the hearing of the amended petition, there was a notice of opposition and the point was not taken in that notice and there was no injustice in the course pursued by the learned judge. (at p332)

5. It was next suggested that there was not a sufficient compliance with s. 52 because non-payment of the costs was not proved by direct evidence that the judgment was unsatisfied but only by the oath of the Sydney Manager of the Company who could not know of his own knowledge. This objection is ill founded. The grounds of the notice of opposition impliedly admit non-payment and in any case where there is a large business or company, proof of such a negative fact as non-payment can seldom be given except inferentially as the result of the general evidence of a person who has inquired and bases his negative evidence on the regular course of recording payments and whatever other routine information is relevant. Even then it will often amount only to prima facie proof. (at p332)

6. Another objection was that there was no valuation of the security. But the security was a share in the fund the amount of which was stated, and the fractional share of which was known. Other actual or possible charges were stated. (at p332)

7. Still another objection was that the date of the act of bankruptcy was mis-stated in the order of sequestration: it is stated as at the date of the judgment of the Bankruptcy Court dismissing the application to set aside the bankruptcy notice, whereas, so it was argued, the date should have been that of the dismissal by this Court of the appeal from that order viz. 9th August 1960. The point depends upon sub-s. (2) of s. 53, a sub-section inserted by s. 5 of Act No. 13 of 1958. The provision deals with the case of a debtor by affidavit setting up a counter-claim set-off or cross demand. In effect the sub-section operates to extend the time limited in the bankruptcy notice until the day when the Bankruptcy Court determines whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand. It is obvious that this refers to the decision of the Bankruptcy Court and cannot on any principle be understood as operating with respect, not to the date of that decision, but to the decision of this Court on appeal from the decision of the Bankruptcy Court. The objection therefore fails. Nothing need be said about an objection based on a defect in the affidavit verifying the petition: for the mistake was not repeated in the affidavit verifying the amended petition. (at p333)

8. The last objection was that Clyne J. had failed to exercise or properly to exercise his discretionary judgment under s. 56 (3) (b) of the Act to dismiss the petition on the ground that "for other sufficient cause no order ought to be made". His Honour had before him all the facts stated in the judgment of this Court given upon the former appeal [1960] HCA 50; (1960) 104 CLR 346 and they had been fully canvassed on the proceeding before him out of which the appeal arose. It is true that the aspect of the facts upon which under s. 56 (3) (b) the appellant sought to rely is necessarily somewhat different from that presented as a supposed ground for setting aside the bankruptcy notice. But to that it may safely be assumed his Honour was fully alive. Nevertheless he took from the beginning the view that no ground existed for holding his hand. It is to the firmness of his Honour's opinion that the appellant objects. His Honour remarked that in making the order he did so deliberately because it was just about time he stopped what had become almost a legal shambles. Is that view unreasonable? Clearly enough the respondent was entitled to an order of sequestration and if thereby the long and hitherto always unsuccessful litigation of the respondent might be brought to a close it was no error to count this as a further reason why the making of the order was just. The appeal should be dismissed. (at p333)

ORDER

Appeal dismissed with costs.