Hubner v ANZ Banking Group Ltd

5 It was not disputed by the appellants and appears self-evident that that provision confers a discretion on the Court. Indeed, in Hubner v Australia and New Zealand Banking Group Ltd (1999) 88 FCR 445; [1999] FCA 385, earlier proceedings in a Full Court of this Court (Cooper, Kiefel and Tamberlin JJ) involving the very same parties as those on the present appeal, it was said by the Court (at 450): "The Court under s 30(3) has a wide discretion and there is no entitlement to a jury trial given by the section". That construction of subs 30(3) is consistent with the construction given to earlier provisions on the same topic. In Re Coward; Stapleton v Brady [1952] QWN 15 (FCB), Clyne J, dealing with s 25(2) of the Bankruptcy Act 1924 (Cth), said at 18 that that provision gave the court "complete discretion" and in Re Allen (1905) 5 SR(NSW) 55 at 56 Walker J said of s 134 of the Bankruptcy Act 1898 (NSW) that that section conferred a discretion. 6 We should draw attention to the fact that both subs 25(2) of the 1924 Federal legislation and s 134 of the 1898 New South Wales legislation were in materially identical terms to s 23 of the 1874 Queensland legislation. We inquired of the appellants during their oral submissions whether they could point to any case, whether under s 23 of the 1874 Queensland legislation or otherwise, which took a view of such provisions different from that taken in the cases to which we have referred. They conceded that they were unable to do so. 7 Presumably because of the discretionary character of subs 30(3) of the Bankruptcy Act 1966 (Cth), the appellants sought to rely, in their notice of appeal, on two matters which, according to them, had conferred on them an entitlement to a trial by jury before the primary Judge, in spite of the provisions of subs 30(3) of the Act. 8 The first was "natural justice"; the second, Sch 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the Human Rights Act"), which schedule consists of the English text of the International Covenant on Civil and Political Rights of 1966 ("the Covenant"). 9 As to "natural justice", that can only be a reference to some principle of the unwritten law and it is apparent that no principle of the unwritten law can stand with a contrary statutory provision such as subs 30(3) of the Bankruptcy Act 1966 (Cth). That is the effect of the doctrine of Parliamentary supremacy over the unwritten law. 10 As to Sch 2 to the Human Rights Act, a Full Court of this Court (Cooper, Tamberlin and Kiefel JJ) in Taylor v Deputy Federal Commissioner of Taxation (1999) ATC 4,268 was confronted with an argument that the provisions of the Federal Court of Australia Act 1976 (Cth) which had the effect of permittinga sequestration order to be made by a Registrar of this Court were invalid either by reason of a certain provision of the Covenant or by reason of the provisions of Sch 2 to the Human Rights Act. In dealing with that argument, their Honours said in joint reasons for judgment (at 4,272; [28]):

"The appellants' second ground of appeal may be dealt with shortly. Article 2 of the International Covenant on Civil and Political Rights ("the Treaty") (Schedule 2 to the Human Rights and Equal Opportunity Commission Act "the HREOC Act"), gives no private rights to the appellants. The covenant contains treaty obligations accepted by Australia. The HREOC Act represents the method adopted by the legislature to give effect to Australia's treaty obligations. The HREOC Act imposes no duties on this Court in terms of Article 2 of the Treaty. Where it is alleged that an act or practice is inconsistent with or contrary to any human right, there is provided an administrative process under s 20 of the HREOC Act to enquire into and report on the complaint. The only right the HREOC Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right: Re East & Ors; Ex parte Nguyen [1998] HCA 73 at 19, 31, 32 [(1999) 159 ALR 108]. There is nothing presently arising out of the HREOC Act which is justiciable in this Court by the appellants."

11 We agree with that reasoning (and see also Minogue v Williams [2000] FCA 125 (Ryan, Merkel and Goldberg JJ; unreported, 17 February 2000) at [21] - [25]). 12 In Taylor, not only was it argued that Registrars could not validly make sequestration orders; it was also argued that, when a Judge heard a creditor's petition for a sequestration order, that Judge was required to sit with a jury. Various bases were put forward for that submission, of which it is necessary only to refer to the Full Court's response to one (at 4,274; [41]):

"The appellants' submission as to … the requirements of full faith and credit being given to the laws of every State (s 118 of the Constitution) do[es] not advance their case to a right to a trial by jury on the hearing of the bankruptcy petitions."

13 We repeat that response now because, although no reliance was placed on s 118 of the Commonwealth Constitution in the appellants' grounds of appeal, the appellants nevertheless sought to rely on it in their submissions on the appeal. Indeed, their oral submissions were almost entirely devoted to it, although they disclaimed knowledge at that time of the existence of Taylor. 14 As we understood the argument made orally in reliance on s 118, it really had two steps: the first was that, under Queensland colonial statutory provisions in force immediately before Federation, a debtor had the right to a trial by jury of a creditor's bankruptcy petition; and the second was that the effect of s 118 was that the Commonwealth Parliament could not exercise its otherwise undoubted legislative powers (in this case, with respect to the mode of trial in bankruptcy matters in this Court) so as to supersede colonial statutes which remained in force immediately after Federation (in this case, s 23 of the 1874 Queensland legislation). (We note in connection with the second step which we have just set out that the appellants submitted that it did not depend on whether the relevant State legislature had itself repealed the legislation concerned; however, we also note that, so far as the present legislation is concerned, it was repealed by s 2(1) of and Sch 1 to the Acts Repeal Act 1991 (Qld).) 15 That argument, we are bound to say, was hopeless. First, as we have already pointed out, the obvious construction of the relevant Queensland colonial statutory provision, namely, s 23 of the 1874 legislation, is that it conferred no right on a debtor to a trial by jury of a creditor's bankruptcy petition. Secondly, even if it had, s 118 was not intended to have the effect of preventing the Commonwealth Parliament from enacting laws which superseded colonial statutes in force immediately after Federation. So much is made plain by s 108 of the Commonwealth Constitution, which provided for the continuation in force after Federation of colonial statutes relating to any matter within the powers of the Commonwealth Parliament "until provision is made in that behalf by the Parliament of the Commonwealth". Thirdly, even if, contrary to the above conclusions, there was some inhibition on federal supersession of a debtor's right to trial by jury of a creditor's bankruptcy petition conferred by s 23 of the 1874 Queensland legislation, that provision could not be construed as applying of its own force to such trials in this Court, but only to such trials in Queensland courts: compare Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168 at 169 (Dixon CJ and Williams, Webb, Fullagar and Kitto JJ). Thus subs 30(3) of the Bankruptcy Act 1966 (Cth) would control in any event. 16 For those reasons, we agree with the decision of the Full Court in Taylor about the irrelevance for present purposes of s 118. 17 Before, however, leaving this aspect of the appeal, we should refer to two other matters. 18 First, the appellants also sought to draw support for their argument of a federal inability to supersede s 23 of the 1874 Queensland legislation from s 19 of the State and Territorial Laws and Records Recognition Act 1901 (Cth), which provides:

"The provisions of this Act shall be in addition to and not in derogation of any powers existing at common law, or given by any law at any time in force in any State or Territory."

19 It is apparent that that provision of a federal statute could not, even if it purported to do so, which it does not, limit the powers of the Commonwealth Parliament subsequently to enact valid laws. 20 Secondly, the appellants also argued that there existed a relevant implied limitation on Commonwealth legislative power, namely, that it could not be used to enact laws which provided for trials in bankruptcy matters otherwise than by jury. At the same time, however, any suggestion that the implied limitation extended to trials of all federal matters was expressly disavowed. The source of such implied limitation was not identified nor was any authority for its existence pointed to. It is apparent that no such limitation exists. 21 The appellants' fourth ground of appeal related to an alleged failure by the primary Judge to determine an application for an order under O 29 r 2(a) of the Federal Court Rules for the separate decision of certain questions. 22 In order to deal with this ground of appeal, it is necessary to make brief reference to something which occurred in the course of the proceeding before the primary Judge. Immediately before the conclusion of the hearing of the creditor's petition, the primary Judge asked counsel for the present respondent whether there were any further submissions he wished to make and received a negative answer. The following exchange then occurred between the primary Judge and Mr Fitzgibbon, appearing then (as he did before us) for the present appellants:

"HIS HONOUR: Yes. Mr Fitzgibbon, is there anything in reply? MR FITZGIBBON: No, I do not want to say anything further, thank you. HIS HONOUR: Very well. MR FITZGIBBON: Your Honour, having said that I will not say anything further, your Honour I am instructed by my client to put before the Court matters that I earlier - I am instructed by my client to raise these issues. HIS HONOUR: I assume that you act on instructions; please get on with it. MR FITZGIBBON: I am, with respect, your Honour. I do not wish to address the document. HIS HONOUR: Yes, I see. Yes, all right. These submissions, I will mark as exhibit 6 and receive them."

23 The document which was marked as exhibit 6 is the purported application under O 29 r 2(a). The document, which was signed (and presumably prepared by) the male appellant, began by stating that application was made for "a judicial determination of the use of the English word 'or' used in the Bankruptcy Act 1966, to determine whether the word is conjunctive or disjunctive". That statement was then followed by the heading "QUESTION (1)",which itself was then followed by six numbered questions. Those six numbered questions, some of which were merely argumentative, were in substance relevant to the application said at the outset of the document to be made. When one reads the six numbered questions, their purport appears to have been to obtain a determination of the question whether a bankruptcy notice addressed to joint debtors is valid. 24 The six numbered questions were then followed by a heading "QUESTION (2)". It, in turn, was followed by an assertion of fact about certain proceedings in the Queensland Supreme Court and the statement that the "Court is asked to determine, as a question of the applicable law, the claim by PE Hack counsel for the applicant, that the International Covenant on Civil and Political Rights has no valid application in Australian law …". That statement was then followed by further material designed to raise the question of an entitlement to trial by jury of creditors' bankruptcy petitions flowing either from the Covenant itself or from the inclusion in Sch 2 to the Human Rights Act of the Covenant. 25 It thus appears that, treating what occurred at the end of the hearing before the primary Judge as amounting to a proper application under O 29 r 2(a), that application was for the determination of two questions, one relating to the validity of a bankruptcy notice addressed to joint debtors and the other relating to whether the effect of either the Covenant or Sch 2 to the Human Rights Act was to confer on the present appellants an entitlement to a trial by jury of the creditor's bankruptcy petition, despite the provisions of subs 30(3) of the Bankruptcy Act 1966 (Cth). 26 As we have already made plain above, any separate answer given to the second question by the primary Judge must necessarily have been adverse to the present appellants, given the decision in the Taylor case, a decision with which we have also already made plain we agree. 27 Further, any separate answer given to the first question by the primary Judge must also necessarily have been adverse to the present appellants, since that very question had already been answered in that way by a Full Court of this Court in the earlier proceeding to which we have already referred involving the same parties as those on the present appeal (see at 447-49). That is an answer with which we also agree. 28 In the circumstances which we have just described, namely, the primary Judge's being bound to answer adversely to the present appellants both of the questions which he was purportedly asked to determine as separate questions, then, even assuming that the application was one which was properly made and that the primary Judge erred in not formally refusing that application, nevertheless such error was an entirely harmless one, on which an appeal would not be upheld. 29 For the reasons given above, the appeal is dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.