Venture Industries Pty Limited & Ors v Justice Murray Wilcox & Ors S115/1996 [1996] HCATrans 387 (30 September 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S115 of 1996

B e t w e e n -

VENTURE INDUSTRIES PTY LIMITED, HARRY KIOUSSIS and PENNY KIOUSSIS

Applicants

and

THE HONOURABLE JUSTICE MURRAY WILCOX

First Respondent

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Second Respondent

COLLINGS CONSTRUCTION CO PTY LIMITED

Third Respondent

JUNE MAUDE COLLINGS

Fourth Respondent

WAYNE COLLINGS

Fifth Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 30 SEPTEMBER 1996, AT 10.41 AM

Copyright in the High Court of Australia

___________________________

MR S.J. GAGELER: If the Court pleases, I appear in this matter with MR G. GRANT, for the applicants. (instructed by Milios & Co)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR I.D. FAULKNER, for the second respondent. (instructed by the Australian Government Solicitor)

BRENNAN CJ: Yes, Mr Jackson.

MR JACKSON: Your Honour, I understand the first respondent, Justice Wilcox, has indicated he submits to the order of the Court.

BRENNAN CJ: Yes, the Deputy Registrar has been informed by the solicitor for the first respondent that the first respondent does not wish to be represented at the hearing of the application for special leave to appeal and will abide by any order of the Court save as to costs. He has also been informed by the solicitor for the third, fourth and fifth respondents in this matter that they do not wish to be represented at the hearing of the application for special leave to appeal and will abide by any order of the Court save as to costs. There has been a notice given under section 78B and I gather that there is no response from any of the Solicitors-General.

MR GAGELER: Your Honours, the special leave questions raised in the application essentially resolve into two main issues. The first issue concerns the proper

construction of the Commonwealth Cross-Vesting Act: to what extent is the vesting in State Supreme Courts of the jurisdiction of the Federal Court comprehensive?

BRENNAN CJ: Why does that question arise? Why is not the question whether Mr Justice Wilcox had jurisdiction to go wrong?

MR GAGELER: Your Honour, the question arises because I need to establish first that Mr Justice Wilcox was wrong.

BRENNAN CJ: For what purpose?

MR GAGELER: For the purpose of obtaining the constitutional writ of prohibition against his Honour's order.

BRENNAN CJ: But to get prohibition you must show he had no jurisdiction, not that he went wrong.

MR GAGELER: Your Honour, if I am correct in my jurisdictional argument, then Mr Justice Wilcox had no jurisdiction to make the order he purported to make under section 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act.

BRENNAN CJ: He was asked to make an order under that subsection.

MR GAGELER: Yes, he was asked to do so by the Commission.

BRENNAN CJ: He has jurisdiction to make orders under that subsection?

MR GAGELER: He has jurisdiction to make certain orders under that subsection.

BRENNAN CJ: Yes, and your argument is that he went wrong?

MR GAGELER: No, my argument is that he made an order purportedly under that subsection which, under that subsection, he did not have power to make. In other words - - -

BRENNAN CJ: What is the difference then between prohibition and certiorari?

MR GAGELER: Your Honour is asking me between the difference between prohibition and certiorari?

BRENNAN CJ: Yes, in this context.

MR GAGELER: In this context there is an overlap, in my submission, between prohibition and certiorari. If there is a jurisdictional error on the face of the record, which I say there is in this case, then the jurisdictional error on the face of the record can give rise to prohibition, even after the execution of the order. Your Honour, if there is an error of law on the face of the record, which need not be a jurisdictional error, then that can give rise to a calling up and quashing by reason of certiorari. However, where there is a jurisdictional error of law, necessarily, on the face of the record, then there is an overlap, in my submission, between prohibition and certiorari.

TOOHEY J: I just, for the moment, do not see how it is a question of jurisdictional error. I can understand the argument that there was an error of law or that Justice Wilcox had no power to make the order that he did, but how does that become transformed into a question of jurisdiction?

MR GAGELER: Your Honours have recently considered the nature of jurisdictional error in the case of Craig v South Australia. One form of jurisdictional error that your Honours there referred to is a form of jurisdictional error where a court purports to make an order of the type that the court has no power to make, and I say that that is this form of jurisdictional error. There is no doubt that Mr Justice Wilcox was seized of jurisdiction in the matter generally; there is no doubt that Mr Justice Wilcox could, in the appropriate case, make an order under section 5(4) of the Cross-Vesting Act. My argument is necessarily this, that that provision did not extend to give his Honour jurisdiction to make an order of the sort that he purported to make in the circumstances of a case where - - -

TOOHEY J: It did not give him power perhaps. It seems to me the argument slides too easily between jurisdiction and power.

MR GAGELER: Well, your Honour, I must say that for the purposes of my argument, I say that an order of the Federal Court which is made beyond the power, that is, where it is an order of a sort which the Federal Court cannot make, gives rise to a jurisdictional error.

DAWSON J: Because it is a court of limited jurisdiction?

MR GAGELER: Because it is a court of limited jurisdiction.

This is not a case - - -

BRENNAN CJ: Is there any authority that has gone that far, having regard to the fact that the Federal Court is a superior court of record?

DAWSON J: Well Gray; ex parte Marsh is one. There is some dicta there, anyway.

BRENNAN CJ: Yes, I have got that in mind, that there is nothing that the Federal Court can do which preserves it against a writ of prohibition. That is a different thing, I would have thought, to say that because an error is made, assuming an error to have been made and to have gone therefore wrongly, so far as the statute is concerned, that that amounts to a jurisdictional error. That would mean that certiorari has no room to play at all.

MR GAGELER: Well, your Honour, it means that prohibition is given some greater scope than may have otherwise been thought. It does not necessarily - - -

DAWSON J: You are really saying, and there is no need to resile from it, that power and jurisdiction are coextensive in this area.

MR GAGELER: Well, your Honour, for these purposes, and in saying that I believe that I am consistent with the analysis of the Full Court in Craig v South Australia. That is, where an order is made, which is itself beyond power, even though the court may have had jurisdiction to entertain the proceeding before it, then there is a jurisdictional error, and to that extent, yes, I am saying that power and jurisdiction coincide for the purpose of determining whether a writ of prohibition is available.

DAWSON J: And being a superior court cannot import jurisdiction where the court is of limited jurisdiction; whereas being a superior court where the court is of unlimited jurisdiction means a very different thing.

MR GAGELER: Yes, your Honour. My submissions entirely embrace that.

TOOHEY J: What is a court of unlimited jurisdiction, in Australia?

MR GAGELER: Your Honours have recently said that there is no such thing, even in the case of the State courts.

DAWSON J: Well that is misleading, is it not, because really, if you inherent the powers of the courts at Westminster, and they have unlimited jurisdiction, the limitation is non limitation.

BRENNAN CJ: I think you are getting into - - -

MR GAGELER: Your Honours, I am perhaps buying into an argument that does not necessarily arise in the present case.

MR GAGELER: Your Honours, I wanted to say something about the proper construction of the Cross-Vesting Act, but I have been drawn into a very interesting debate on the scope of the constitutional writ of prohibition and may I say that this case necessarily raises a number of fundamental questions about the nature and scope of the constitutional writ of prohibition. One is, is the writ in all cases discretionary; the second is, can the writ be granted after the judicial order to which it has been directed has been made and executed? And, in answering both of those two questions, there arises the question to what extent, if at all, does the jurisdiction of the court under section 75(v) of the Constitution import the common law distinction between a patent jurisdictional error, that is a jurisdictional error which is apparent on the face of the record, and a latent jurisdictional error being one in relation to which some evidence must be necessary for the error to be appreciated.

TOOHEY J: But, Mr Gageler, there is an overriding consideration, is there not? Given the fact that this is an application for special leave to appeal, given the history of this matter in which decision was made by Mr Justice Wilcox against which no attempt was made to appeal, arguably there is or there is not a right of appeal, the matter allowed to go forward to the Supreme Court, proceed to a hearing, go to referees, the question of jurisdiction of the Supreme Court, I suppose, remains a live issue at the end of the day if it is sought to be challenged, why should this Court step in at this stage?

MR GAGELER: Your Honour, if I am right as to the availability of the writ of prohibition, then the position is that I have a right to approach this Court at any time to apply for prohibition, which I should obtain itself as of right. That is in fact what my client did. It approached this Court for a writ of prohibition. The Court quite properly, in the exercise of discretion under the Judiciary Act, remitted the application to the Full Court of the Federal Court, and I am here again seeking special leave to appeal from that decision. But my point is, your Honour, that if I am right, that there is no discretion to refuse prohibition, then those matters should not enter into the question, and I should not be deprived of my ability to argue to obtain the writ as a right by an exercise of discretion, albeit an exercise of discretion in not granting special leave to appeal. That would be to deny me the right that I say that I have by virtue of section 75(v) of the Constitution.

BRENNAN CJ: That your client has, Mr Gageler.

MR GAGELER: I am speaking metaphorically, your Honour, yes.

BRENNAN CJ: It is always desirable however that counsel might remember that they have no rights at all.

MR GAGELER: Except presumably the right of audience.

BRENNAN CJ: Yes.

MR GAGELER: Your Honours, in relation to the jurisdictional issue, if I may address that, it arises by virtue of the interplay of sections 86 and 86A of the Trade Practices Act 1987 , with the general provisions of sections 4 and 5(4) of the Cross-Vesting Act, and your Honours will have noted from the legislative history set out at page 44 of the appeal book that those provisions were introduced at the same time and as part of the same legislative scheme.

Your Honours, sections 86 and 86A, as originally introduced, are set out at pages 45 and 46 of the appeal book and those provisions have been amended from time to time, but for present purposes the amendments do not matter. Your Honours will see from section 86 at page 45 that it vests federal jurisdiction in the several courts of the States with respect to a particular class of matter and for that class of matter is:

any matter arising under Division 1 or 1A of Part V in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission.

Section 86A provides a regime for the transfer from the Federal Court to a State Court of a matter of the same class. Your Honours, what is specifically excluded from the scope of both of those provisions is:

a matter arising under Division 1 or 1A of Part V in respect of which a civil proceeding is instituted by.....the Minister or the Commission.

And, with respect to that specific and limited class of matter, the legislation says explicitly, in our submission, State Courts, including State Supreme Courts, are not to be invested with federal jurisdiction, that is section 86(2), and there shall be no transfer from the Federal Court to a State Court; that is section 86A(1).

Your Honours, the reasoning of the Full Court of the Federal Court, in this case, takes the general provisions of sections 4(1) and 5(4) of the Cross-Vesting Act, and interprets them as saying, in relation to that same class of matter, State Courts shall be invested with federal jurisdiction, section 4(1), and the Federal Court may transfer the proceeding to the Supreme Court of a State, that is section 5(4). Your Honours, if that is correct, then the Commonwealth Parliament in enacting sections 86 and sections 86A of the Trade Practices Act at the same time as the Cross-vesting Act, was saying two inconsistent things on the same day, and the solution to the inconsistency, according to the reasoning of the Full Court, is to treat the general, that is, the Cross-Vesting legislation, as prevailing over the - - -

DAWSON J: Not really, because the Trade Practices Act is not speaking of cross-vesting; it is speaking of original jurisdiction, is it not?

MR GAGELER: Your Honour, the structure of section 4 of the Cross-Vesting Act, which your Honour will see at page 51 of the appeal book, is the same; that is, it is concerned with the vesting of certain federal jurisdiction in State Courts.

DAWSON J: The cross-vesting?

MR GAGELER: Well, your Honour, the way that cross-vesting is achieved of federal jurisdiction to State Courts is simply an investiture of State Courts with the jurisdiction of Federal Courts.

DAWSON J: It is different to original jurisdiction?

MR GAGELER: Well, yes - - -

DAWSON J: .....is your statement that one is a general Act and the other is a particular Act; they are Acts of a different sort and each particular in their own way.

MR GAGELER: That may be so, your Honour, but what is very particular about the Trade Practices Act is its particular exclusion of a very particular class of matter from the jurisdiction of State Courts, whereas section 4 of the Cross-Vesting Act is cast in the most general of terms and it is concerned with generally conferring the jurisdiction of the Federal Court on State Supreme Courts, where the State Supreme Courts do not otherwise have jurisdiction in the matter. The real question, your Honours, is whether the very particular carve-out in both sections 86(2) and 86A(1) of the Trade Practices Act should be interpreted as having been obliterated by the general provisions of the Cross-Vesting Act.

TOOHEY J: Not obliterated, surely. Assuming the matter that Justice Dawson put to you, the Trade Practices Act is concerned with the original jurisdiction of particular courts in particular matters; the Cross-Vesting Act empowers the Federal Court in particular circumstances it is said, including these circumstances, to transfer a proceeding to the Supreme Court, which otherwise would not have jurisdiction.

MR GAGELER: Your Honour, it does two things: first the Cross-Vesting Act vests State Courts with the jurisdiction of the Federal Court; that is section 4(1) at page 51. Now, that is independently of any transfer, your Honour. Then section 5(4), which is at page 52, allows the Federal Court to transfer a proceeding to a State Supreme Court. Now it assumes that the State Supreme Court will have jurisdiction in relation to the matters raised in that proceeding by whatever means, but there is in section 4 a necessary vesting of jurisdiction in the Supreme Court.

TOOHEY J: But is it necessary only as a first step in the transfer of the proceeding or do you say section 4 invests jurisdiction of its own force and effect?

MR GAGELER: Yes it does, your Honour, and the reasoning of the Federal Court has this consequence, that a section 52 proceeding can be commenced by the Minister or the Commission in the Supreme Court relying on the jurisdiction of the Supreme Court, which is original jurisdiction under section 4(1) of the Cross-Vesting Act. And, more than that, your Honours, there would be no requirement in that case to transfer the proceeding back to the Federal Court, because such a proceeding would not be a special federal matter within the scope of section 6, which is the very special and particular, almost mandatory, requirement for a Supreme Court to transfer certain sorts of federal proceedings back to the Federal Court.

BRENNAN CJ: Mr Gageler, you said that you have a right to prohibition.

MR GAGELER: Yes.

BRENNAN CJ: Now, I must say that my impression was to the contrary and looking at The Queen v Ross-Jones; ex parte Green and The Queen v Gray; ex parte Marsh have said so.

MR GAGELER: Your Honours has said so, yes.

BRENNAN CJ: And, as I understood it, the practice of the Court, at least since those cases, has been to refuse on discretionary grounds applications for orders nisi.

MR GAGELER: Your Honour, that may be so in relation to the practice of single Judges of the Court considering applications for orders nisi.

BRENNAN CJ: Well why do you say that it is as of right?

MR GAGELER: Your Honour, I wish to contest what your Honour has said in those cases. Chief Justice Barwick in an earlier case, which is the Western Australian Football Case, took a different view.

DAWSON J: But he is the only one that has.

MR GAGELER: Well the only one who has recently, but there was a very distinct line of authority at common law to the effect that where a jurisdictional error was patent, then the writ would run as of right. The earlier judgments of this Court assumed that the writ was generally as of right. Chief Justice Barwick drew a distinction between the patent and latent defects. Your Honour the Chief Justice in two cases has said that that jurisdiction is inappropriate and the Court from time to time has assumed that there is a discretion in all cases to grant prohibition.

BRENNAN CJ: And in a case like this, for example, where the point was raised expressly before the Supreme Court and where your party declined to proceed with it and saying it had abandoned it, there is no question of estoppel?

MR GAGELER: No, your Honour, because - - -

BRENNAN CJ: So that you can raise points, abandon them, and then at some later stage apply for prohibition?

MR GAGELER: Yes, your Honour, and that is the effect that the common law - - -

DAWSON J: At least one thing is clear, that special leave is discretionary, is it not?

MR GAGELER: Absolutely, your Honour, but for the reasons that I have given it would be inappropriate to use the discretion to refuse special leave so as not to consider the question of the right to the writ and it must be remembered that my client sought the writ in the original jurisdiction of this Court. Those are my submissions.

BRENNAN CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, there are two particular aspects of the case to which we would wish to direct attention: first is the question whether special leave should be granted at this stage and whether, if so, it should be granted on terms; the second is whether the result in the Full Court is attended by sufficient doubt. Your Honours, may I turn to the first of those matters. The proceedings in the Supreme Court have not yet been concluded and, your Honours, two important things appear from the material in the courts below: the first is that at an early point in the proceedings in the Supreme Court, the applicants elected not to proceed with a challenge to jurisdiction. May I take your Honours to where that appears in the application book. Your Honours will see at page 39 under the heading, "The proceeding in the Federal Court" the first two paragraphs under that heading, and from there one goes to page 40.

So, your Honours will see the proceedings were started by us in the Federal Court, then if I could take your Honours to page 40 about line 11, there was the application for the transfer to the Supreme Court, a contested hearing, the proceedings are transferred to the Supreme Court. Your Honours, at the top of page 41 there had been the submission that there was:

no jurisdiction to make the order sought by the Commission -

and, your Honours, at page 41 lines 18 to 21, the issue is raised about the fact there was no appeal if one were possible.

Your Honours, in the Supreme Court, at the bottom of page 41, the last three lines, your Honours will see there set out what occurred, and in the paragraph numbered 1 on page 42, your Honours will see that there was a:

Notice of Motion seeking, inter alia, a declaration that the Supreme Court had no jurisdiction -

and then it was decided not to proceed with that for, what were described as "commercial reasons".

The commercial reasons, your Honours, have become a little more commercial. Your Honours will have seen the expenditure of money that occurred in the proceedings in the Supreme Court in which judgment has not yet been given. Could I refer your Honours to pages 42 and 43, and to the events which have occurred in that court and in the proceedings before the referee, 13 days before the referee, 27 hearing days before Mr Justice Hunter, and your Honours will see at the bottom of the page, page 43, that $1,304,060 has so far been expended by the Commonwealth in relation to the hearing of the matter.

So our submission would be that the proceedings should not be further fragmented and special leave should not be granted, all other things being appropriate for it, until, at the earliest, Justice Hunter's decision was given. Your Honour, I do not mean by what I just said to convey that we submit that all other things are appropriate for special leave, but making that assumption.

Could I turn then, your Honours, to the next question, and that is the question of whether the decision of the Full Court on the central point was attended by sufficient doubt. Now, your Honours, no doubt the matter does involve reading together two statues, and to that extent there was a degree of complication in it, but that does not, in the end, in our submission, mean that the result is not, with respect, relatively clear. The ultimate question is, of course, whether the Supreme Court has jurisdiction. If I could take your Honours to section 4(1) of the Cross-Vesting Act. It is set out, your Honours, at page 51, and what your Honours will see is that, if I could just take your Honours to the words of it, it says in section 4(1)(a):

Where:

(a) the Federal Court or the Family Court has jurisdiction with respect to a civil matter....

and

(b) the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;

then:

(c) in the case of the Supreme Court of a State.....that court is invested with federal jurisdiction with respect to that matter;

Now, your Honours, that provision is expressed in broad terms and to relate to matters in relation to which, apart from the investment effected by section 4(1), the Supreme Court would not have jurisdiction. Now, your Honours, the terms of section 4 do themselves provide the limitation upon the wide words of section 4(1) and that limitation is to be found in section 4(4) and your Honours will see that it refers to a number of specific provisions of, amongst other things, the Trade Practices Act and it is only the jurisdiction in relation to matters arising under those provisions which is specifically excluded.

So that, your Honours, it is not really a case of saying the general statute has been preferred to the more specific; what you have is a case of a general statute, certainly if one looks only at section 4(1), but a general provision which contains within itself specific limitations. And, your Honours, the specific limitations have been added to in the course of legislative practice as the judges in the Full Court of the Federal Court said in the references at page 56 through to page 58.

Your Honours, what we would submit is that no doubt the provisions of the two enactments have to be read together, but the reasons given by the Full Court - and could I indicate to your Honours the relevant passages where the core of the reasoning appears: at page 55 line 17 to page 58 line 19 through to the top of page 60 - indicate, in our submission, that the result arrived at by the Full Court was the better result on that issue. So, your Honours, in our submission, for those reasons, special leave should not be granted.

BRENNAN CJ: Thank you. Mr Gageler.

MR GAGELER: Your Honours, there are four short points in reply. The first is that if there is any discretion involved in the grant of prohibition, then I cannot and do not say that the discretion should be exercised in the applicants' favour. My case necessarily stands or falls on it being granted as of right.

The second point is in relation to the suggestion that the grant of special leave should be on terms. Your Honours, I have already said that the discretion of the Court in relation to special leave should not be used where its effect would be to deprive my client of what it claims to be its constitutional right to prohibition. There is a second answer to the same point and it is this, that if the jurisdictional argument were fully pursued in the Supreme Court where the respondent says it should be pursued and my client was vindicated at the end of the day, then the normal course would be that costs in that court would follow the event, that is, I would have my costs paid by his clients.

But, your Honour, the third point is in relation to section 4(4) of the Cross-Vesting Act upon which my learned friend placed some emphasis. In my submission that subsection assists my argument in this way: it shows that the vesting of the Federal Court jurisdiction in State Supreme Courts is not comprehensive and it also shows that, on any view, the transfer provision in section 5(4) of that Act must be read down so as not to cover the transfer of matters which, by reason of section 4(4), are not within the jurisdiction of State Supreme Courts.

And finally, your Honour, in relation to the passages in the reasoning of the Federal Court to which some reference was made, there is a passage at page 73, lines 5 to 10, of the appeal book where the principle expressed in the Anthony Horden Case is set out. That is a principle upon which I rely, and, in our respectful submission, their Honours wrongly said that that maxim set out in that passage was inapplicable where the powers are conferred by two separate enactments. If the enactments are meant to be read together and to form part of an overall scheme, then, in our respectful submission, that principle is applicable and is applicable in the circumstances for this case.

BRENNAN CJ: This application for special leave is based on an alleged want of jurisdiction on the part of Wilcox J who made an order purportedly under section 5 of the Jurisdiction of Courts (Cross-Vesting) Act (Cth) transferring the matter to the Supreme Court of New South Wales. The jurisdiction was then challenged by the present applicant but the challenge, after being made, was abandoned "for commercial reasons". Since that time the matter has proceeded but not to judgment. The question of jurisdiction may yet be determined by the Supreme Court. In those circumstances, the discretion to grant special leave must be exercised against the appellant. Such a refusal is not tantamount to the refusal of a remedy as on an application in the original jurisdiction of this Court. The matter in respect of which special leave is sought is pending in the Supreme Court and it should not be brought here on appeal. For these reasons, special leave will be refused.

MR JACKSON: I ask for costs of the application, your Honours.

MR GAGELER: Nothing I can say, your Honours.

BRENNAN CJ: Special leave will be refused with costs.

AT 11.18 AM THE MATTER WAS CONCLUDED