His Honour did not expressly decide that the matters advanced on behalf of Mr Giretti did not provide good cause for going behind the judgment. It should be inferred, however, that that was his Honour's view. At the same time, it should also be accepted, that he did not regard himself as having embarked upon a hearing of the petition or as having been called upon to decide anything.
In view of the conclusions which I reach below in relation to the hearing before Olney J on 13 December 1995, it is not necessary for me to reach a final view as to the appropriateness of Ryan J's acceptance of Mr Giretti's undertaking. However, as the matter was debated on the hearing and as we were told that the practice has been adopted in other cases, I think it right, but sufficient, for me to say that I have serious doubt as to the appropriateness of the course that was followed. In effect, without having the benefit of reasons or a decision of one judge, Mr Giretti had to undertake not to oppose, when the petition came on for hearing before a different judge, the making of a sequestration order if he did not by then have Legal Aid. With respect, it is at least strongly arguable that this course did not accord procedural fairness to Mr Giretti. I say this not overlooking the facts that the adjournment was granted as an indulgence to Mr Giretti on the third occasion when the creditor's petition was before the Court; that it was granted for the purpose, stated by him, of enabling him to obtain Legal Aid; and that it was granted against the background that a refusal of an adjournment would have
resulted in the immediate making of a sequestration order.
When the petition came on for hearing before Olney J on 13 December 1995, his Honour first explored with Mr Giretti the question of the undertaking which he had given to Ryan J on 15 November. Importantly, he then asked Mr Giretti what his grounds of opposition to the petition were, and Mr Giretti stated them. Again, they went only to the factual issues whether he had derived taxable income during the years in question and whether the Commissioner had relied on evidence which was in fact false. His Honour next obtained Mr Giretti's assent to the proposition that he had no current proceeding before the AAT or this Court seeking review of, or appealing against, the assessments. It is perhaps not amiss to note that his Honour had decided Hoare Bros Pty Ltd v Deputy Commissioner of Taxation, supra, on 7 March 1995 and Kalis Nominees Pty Ltd v Deputy Commissioner of Taxation, supra, on 14 August 1995, in which the effect of the statutory provisions mentioned earlier was referred to. The nature of Mr Giretti's opposition to the petition and the lack of any subsisting challenge to the assessments made it virtually inevitable that a sequestration order would be made, in the light of the statutory provisions and authorities referred to earlier.
In the short reasons for Judgment given by his Honour, he began by saying "I propose to hold you to the undertaking you
gave on 15 November." This demonstrates that his Honour did not regard the undertaking as something to which Mr Giretti was being held for no reason other than that he had given it. The question which his Honour was, in substance, addressing was whether there was any point in not holding Mr Giretti to his undertaking. His Honour gave two reasons for holding him to it. The first was that the price of his being granted his request for an adjournment had been his undertaking not to oppose the making of a sequestration order. The second was that the nature of the grounds of Mr Giretti's opposition did not justify the Court's going behind the judgment.
For the reasons which I attempted to state earlier, the second ground was clearly a proper one on which his Honour might proceed, without further ado, to make a sequestration order, subject to proof by the petitioning creditor of the matters required by the Act. Having heard the grounds on which Mr Giretti's opposition was founded, Olney J decided afresh, and on the case as it was put to him by Mr Giretti, as the authorities compelled him to do, not to go behind the judgment. It should be accepted that his Honour's view that the Court was not justified in going behind the judgment was an independent ground for his decision not to allow Mr Giretti to elaborate on that ground, unaffected and not contributed to by anything that had happened before Ryan J; cf Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J and cases there cited; Preston v Carmody (1993) 44 FCR 1
(Wilcox J) at 16. In substance, if not in form, Mr Giretti was heard by Olney J on 13 December 1995 in opposition to the petition.
If, contrary to the view that I have expressed above, a failure to accord procedural fairness tainted what transpired before Olney J, nonetheless there is an alternative ground on which the appeal should be dismissed. We have heard at some length from Mr Giretti and, with his consent, from Ms Harrison. Nothing has emerged to put a different complexion on the nature of Mr Giretti's ground of opposition to the petition as it was explained to Olney J. What they said can be summarised as being that Mr Giretti did not in fact have "illegal earnings" from "trafficking" (T 8.05, 8.09) and that in making the betterment assessments in question the Commissioner had acted on evidence which was false. It is clear that if Mr Giretti's undertaking to Ryan J had not been given or, having been given, had been ignored by Olney J, a sequestration order would nonetheless have been made by his Honour. This is so because Mr Giretti's ground of opposition, as elaborated upon on the hearing before Olney J and on the appeal would not have provided a ground on which his Honour would have been entitled to go behind the judgment. In sum, Mr Giretti was not deprived of the possibility of avoiding the making of a sequestration order; cf Stead v State Government Insurance Commission (1986) 161 CLR 141; Simmonds v Spooner (No 3), unreported, Supreme Court of New South Wales, Court of
Appeal, 28 March 1995.
In Stead v State Government Insurance Commission, supra, in an action for damages for personal injury, counsel for the plaintiff was induced not to address in relation to the evidence given by a doctor called by the defendant, by the trial Judge's statement that she need not do so because he did not accept the doctor's evidence. In the event, however, he did accept that evidence. An appeal was dismissed by the Full Court of the Supreme Court of South Australia which held that the making of the submissions could not have affected the result.
There was a further appeal to the High Court. There are various expressions of the applicable principle or principles in the joint judgment of the members of the Court. At page 145, their Honours said this:
" ... an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility."