CONSIDERATION
11 This is an unusual situation where the Court is called upon to exercise its discretion in the context of s 58(3)(b) of the Act. It is not in contention that the Court has power to make the orders that are sought in the Application.
12 In opposition to the Application it was correctly brought to my attention that the normal circumstances where the discretion is exercised is where the plaintiff in the related proceedings is asserting proprietary rights, or liability is covered by an insurance policy, or where the facts are complex and it is preferable for those facts to be resolved at a related hearing rather than by way of a proof of debt.
13 The respondent submitted that the leave sought by the Application in this proceeding is, in effect, seeking to get around the decision in the case of Power v Kenny [1977] WAR 87, and if leave were granted it would undermine the principles underlying the Act.
14 The main issue that will need to be determined, which is before the County Court at this moment, concerns the practice and procedure of the County Court. As I have indicated, this issue concerns the purpose, effect and operation of the various orders made by the County Court, significantly the orders of Judge Anderson and Judge Cosgrave. However, in looking at the matter, any court would look at the three orders I have mentioned to determine the ambit of the operation of each, and to determine how each may impact upon the other.
15 I do not see that granting leave would, in any way, undermine the control and supervision of this Court having jurisdiction in bankruptcy, or as being inconsistent with the principles behind the Act.
16 The issue between the parties as to the purpose, effect and operation of the various orders made by the County Court is one that needs to be determined by a court. The County Court is currently still seized of the matter. It is a matter of practice and procedure of the County Court. The most efficient and effective way to determine the dispute between the parties is for the County Court to make a determination having regard to the whole circumstances that have occurred before that Court.
17 My initial impression would be that an order which is self-executing operates of its own force. In Jorgensen v Slater & Gordon [2008] VSCA 110, at [5], the Court of Appeal said:
that is, if an order has not been complied with, the sanction specified in the order takes effect automatically upon the expiration of the time fixed for compliance.
The Court of Appeal referred to the well-known authority on self-executing orders, Freeman v Rabinov [1981] VR 539.
18 However, as to what is the correct position as to the purpose, effect and operation of the various orders, having regard to the circumstances surrounding the making of the various orders, is a matter which is properly within the domain of the County Court. I would therefore grant leave so that the whole dispute between the parties can be determined by the County Court.
19 Having decided that leave should be granted, the question arises as to whether or not that leave should be subject to any conditions, or such terms as the Court thinks fit, to use the terminology of the Act.
20 I observe that in Graham & Linda Huddy Nominees v Byrne [2017] FCA 1638, Logan J did impose a term that leave be granted without prejudice to any issues of substance that may arise in the related proceedings. I do not know to the extent to which a similar term or condition would assist the parties in this proceeding. I hope I have made it clear that granting leave would allow for all the arguments that relate to the main issue between the parties - namely the purpose, effect and operation of the relevant orders - to be determined by the County Court. Other than obviously allowing for the order of Judge Kennedy to be taken into account now, the grant of leave otherwise does not change the arguments that would otherwise be agitated before the County Court judge.