Amerind – special leave granted

The story goes that a Supreme or Federal Court that convenes a larger bench than usual to hear a matter of importance is like a red rag to a bull when it comes to the High Court deciding whether the grant special leave to appeal from that decision.

Whether that be the case or not, the High Court has on 17 August 2018 granted special leave to appeal in the matter of what is known as Amerind, being a decision of the Victorian Court of Appeal constituted by 5 Judges, concerning the intersection of insolvency law and trust law. It is more formally known as Commonwealth v Byrnes and Hewitt [2018] VSCA 41.

That decision was given on 28 February 2018.  Another decision of a specially constituted court, though not on appeal, is that of the three judge Federal Court decision in Killarnee, decided after Amerind, which is not on all fours with Amerind, although Justice Farrell, on a particular point, noted that she was bound to follow Amerind.  It was decided on 21 March 2018.

A number of decisions have since had to deal with the ‘uncertainty’ that remains in this area of law: see for example Maz Platinum Pty Ltd (in liq) [2018] FCA 1139 where the liquidator sought directions because of what he described as the uncertainty resulting from the two decisions. Other courts have extracted a common reasoning in the more confined factual scenario upon which they have had to decide the matter. One court relied upon the now overturned trial decision in Amerind, only days before the appeal decision was given: Re Mamounia (No 3) [2018] VSC 65. 

What ‘lower’ Courts do in the meantime, pending the protracted process of setting the High Court appeal down for hearing and then possibly waiting on the High Court’s decision, will be an issue for each case, and its litigants, and counsel.

The decision to grant special leave to appeal is as predicted.  Once the transcript of the hearing is available, we can comment more.

Thank you to Carrie Rome-Sievers for alerting me to the special leave decision.


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