Gould v Day

EX TEMPORE REASONS FOR JUDGMENT 1 On 7 September this year, Conti J ordered that the Estate of Stephen Gould be sequestrated on the application of Julian Day and Adam Manly. On 7 November 2000 a Full Court, consisting of Heerey, Moore and Goldberg JJ, heard an appeal by Mr Gould against that order. Neither he nor the respondents, Messrs. Day and Manly were legally represented before Conti J or before the Full Court. On 24 November, the Full Court dismissed the appeal (Stephen Gould v Julian Day & Anor [2000] FCA 1673). 2 On 29 November, a notice of motion for a stay of the sequestration order pending an appeal to the High Court came before me as duty judge. There were some issues as to the service of proceedings which it is unnecessary to deal with now. Mr Day, one of the respondents is before me, the other respondent, Mr Manly, being overseas. I am satisfied that it is appropriate to deal with the matter with Mr Day representing the respondents for reasons which will appear sufficiently from the transcript of the proceedings today. 3 The substance of what Mr Gould calls the appeal to the High Court, which of course amounts to an application for special leave to appeal to the High Court, is a denial of natural justice in relation to the hearing before the Full Court. Mr Gould summarises the three bases of this in his material as: (a) The obstructive actions of the respondents to allow the appellant to expedite the appeal; (b) The wrong information provided by the Registrar; and (c) Pressure by appeal judges to provide copies of appeal books. 4 Mr Gould submits that because of the haste with which the matter was brought on, he was disadvantaged by not being able to properly present his case to the Full Court. In particular, he says that he was not able to present some issues that he would have liked to have presented. It does not appear that he asked for any adjournment of the matter before the Full Court itself in order to provide him with further time. There is no evidence that that took place, and he is unable to suggest that he recalls it happening. 5 It is established that an application for a stay pending an application for special leave to the High Court should be made before the court from which the appeal lies (Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681, at 684). The reason is that the court in which the matter was dealt with is familiar with it. In the present case that means the Full Court which heard the appeal. No application was made to it for a stay. In accordance with the practice of the court, Moore J sat alone to deliver the judgment of the Full Court. Mr Gould says that he informed Moore J that he would be appealing to the High Court and seeking a stay of proceedings of the sequestration order. His Honour said, "I do not need to know that" and Mr Gould replied, "I was giving notice to the other side". This means that the opportunity was not taken for the matter to be dealt with by at least one of the justices who had sat on the Full Court and was familiar with the issues. 6 It seems to me that this has particular importance and significance in a matter where the complaint is essentially that that Full Court, and the processes of the Registry of the Court behind it, had led to a denial of natural justice. I have jurisdiction in this matter by virtue of section 25(2)(d) of the Federal Court of Australia Act 1976) (Cth) but in doing so I am exercising the appellate jurisdiction of the court. I considered whether in the circumstances I ought to refer this matter to a Full Court consisting of the three judges who had constituted the Full Court in this matter. I concluded that would not be an appropriate course. That court is functus officio. It would be no easy task to reassemble it. Two of the judges come from Melbourne and one from Sydney. Full Court sittings are now being completed and it is a difficult time of year. Even if the bench could be assembled, it seems to me that even it would have special difficulties in dealing with the subject matter of complaint which is made, whilst they undoubtedly would be in a better position than I am to assess the merits of the application. It would involve the invidious situation of those three judges considering whether there was an arguable case that they had not afforded natural justice to Mr Gould. 7 In my view, this is one of those unusual cases where, under all of the circumstances, it is best that application be made to the High Court, the opportunity having been lost to have the matter dealt with by the Full Court or a member of it at the time judgment was delivered. The issues of substance which arise in this kind of application as identified in Jennings Constructions v Burgundy Royale Investments (supra) are, firstly, whether there is a substantial prospect that special leave to appeal be granted, secondly, whether the grant of a stay will cause loss to the respondent and thirdly, where the balance of convenience lies. I feel considerable difficulty as a single judge of this court in endeavouring to make a forecast about the likely approach of the High Court to this very unusual application. It is, in a sense, a rather invidious position, which confirms my view that this is a case where the High Court or a justice of the High Court should have the opportunity of considering the matter. 8 I should say, however, that if the matter were for my own judgment, I would have considerable difficulty in concluding that there would be a substantial prospect that special leave would be granted. In a case of alleged denial of natural justice, one would have expected an application to have been made to the Full Court for an adjournment. I do understand the difficulty that Mr Gould as a litigant in person may have had before three judges of this court in what undoubtedly was an expedited hearing. However, neither party in this matter is unused to litigation (as the judgment of the Full Court reveals) and neither party is unused to representing themselves before courts. Furthermore, lying behind the denial of natural justice lies the merits of the appeal to the Full Court itself. The point principally dealt with by the Full Court was the question of bias. I should have thought that the chances of obtaining special leave to appeal from that judgment on that ground are very slight because there is no issue of principle or public importance raised. That is not to say that there may not be questions about how the Full Court exercised its discretion or came into its decision. That is not a matter for me, but I do have difficulty in discerning any error of principle in the way in which their Honours looked at the matter. Going to the other points flagged by Mr Gould in his evidence as being points he wished to argue, such consideration as I can make of them, on the limited material before me, does not indicate any reasonable prospect of success. 9 In all of the circumstances, I am going to refuse the application for a stay pending the special leave application, but I do propose to stay the sequestration order for sufficient time to enable Mr Gould to make any application which he wishes to pursue before the High Court, either a direct application for a stay or an application for special leave to appeal against this decision. In doing this, I am not offering any encouragement to him in taking any such course, but merely wish to afford him that opportunity. In doing that, I am conscious of the fact that not only the respondents to this application but also other creditors may well be affected by the delay inherent in the order I propose to make. I am also conscious of the fact that there has been a history of proceedings between the parties and that Mr Gould has not so far been able to persuade anybody of the merits of his case. However, there is a balance to be struck, and I bear in mind the principle that it is appropriate, as far as possible, to preserve the reality of an appeal if there is genuine appeal to be pursued. That principle is referred to by Hayne J in the case of Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 153 ALR 641. 10 It seems to me that an appropriate period to enable Mr Gould to consider his position and to prepare and present an application for a stay to the High Court would be 21 days from today. I order that the sequestration order made by Conti J on 7 September 2000 be stayed up to and including 22 December 2000. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.