Venture Industries Pty Ltd, Ex parte; Re Wilcox S185/1995 [1996] HCATrans 56 (5 February 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S185 of 1995

In the matter of -

An application for a writ of prohibition and a writ of certiorari against THE HONOURABLE MURRAY WILCOX, Judge of the Federal Court of Australia

Respondent

Ex parte -

VENTURE INDUSTRIES PTY

LIMITED

Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 FEBRUARY 1996, AT 9.00 AM

Copyright in the High Court of Australia

MR M.S. JACOBS, QC: If it please your Honour I appear together with my learned friend MR L.J.W. AITKEN for the prosecutors. (instructed by Milios & Co)

HER HONOUR: Yes, thank you, Mr Jacobs.

MR JACOBS: We were informed that your Honour would be robing this morning, hence our attire. I hope your Honour will excuse us.

HER HONOUR: If you wish to remove any part of it, please feel free, within limits.

MR JACOBS: My learned junior says it is either one or nothing.

HER HONOUR: Yes, thank you.

MR JACOBS: I take it that your Honour has had an opportunity of reading our submissions.

HER HONOUR: Yes, Mr Jacobs.

MR JACOBS: There are just one or two points which are not quite right. In paragraph 3, your Honour, where we say "Under section 86(2) and 86A(1)(a) jurisdiction may be transferred", of course, the 86(2)(a) section refers to original jurisdiction, not the transfer of jurisdiction.

HER HONOUR: I do not think I follow that.

MR JACOBS: In paragraph 4 the word "The Commission" should be placed instead of the word "The Minister".

HER HONOUR: Yes.

MR JACOBS: In paragraph 7, your Honour, the reference to page 219 should be to lines 40 to 50. On page 4, paragraph 11 we draw your Honour's attention to the fact that the Worthington Case has been cited with approval - - -

HER HONOUR: I do not have the same submissions. Paragraph 10, is it? Yes, thank you.

MR JACOBS: Paragraph 11, your Honour, on page 4 the Worthington Case is cited with approval in the National Football Club Case at 201 and the reference to the Hill Case, a further reference if we can give your Honour, is page 658A to B.

HER HONOUR: Yes. Now, we might not have the same submissions.

MR JACOBS: Your Honour might have the first submission on Friday, not the one that came over this morning.

HER HONOUR: That is correct, yes.

MR JACOBS: I do apologise for that. The difference between the two is paragraph 7, which is a new point, and paragraph 7 is not in our original submissions. Paragraph 7 follows his Honour Mr Justice Gummow's judgment in Poingnand's Case and the reference there at 219 is to lines 40 to 50.

HER HONOUR: We do not have that.

MR JACOBS: May I just give your Honour the judgment in the passage that I have flagged.

HER HONOUR: Thank you. That would seem to be against you.

MR JACOBS: No, with respect, your Honour, what his Honour was saying there is that - and I interpolate - if his Honour Mr Justice Wilcox is correct and that the State Supreme Court had jurisdiction in any event then section 5.4 of the Cross-Vesting Act does not apply. There is no jurisdiction to cross-vest. That is the point. You can only cross-vest if - - -

HER HONOUR: But this was a proceeding commenced by the Commission and so there was no jurisdiction in the Supreme Court.

MR JACOBS: That is right, but we say whichever way you look at it, it is actually a bit of a conundrum. We point out the conundrum in paragraph 7. We say that if it means what his Honour says it means and that there is in any event jurisdiction then the cross-vesting legislation does not apply, but we say that clearly you have got to give some meaning to the words in the section which prohibit the State Supreme Courts from dealing with the matter where the Commission is the moving litigant. Those are really in essence our submissions. I do not really think - - -

HER HONOUR: I think you have quite a fundamental problem, though, apart from that, Mr Jacobs. There is nothing to prohibit on the part of Mr Justice Wilcox any more and certiorari will only lie as an ancillary remedy for prohibition or mandamus. The authorities on that are clear. There is nothing to prohibit.

MR JACOBS: It is Mr Justice Hunter's following - - -

HER HONOUR: But you are not seeking to - and perhaps you cannot - do anything with respect to what Mr Justice - - -

MR JACOBS: We cannot appeal against that.

HER HONOUR: No, but you are not seeking to do anything with respect to Mr Justice Hunter and perhaps you cannot.

MR JACOBS: Yes.

HER HONOUR: Okay. Now, it seems to me your difficulty is there is nothing on the part of Mr Justice Wilcox which you can prohibit.

MR JACOBS: His order is still operative, your Honour, and I think this is, in fact, referred to in - I think there is a passage in the Worthington Case that may be of assistance to me. Our submission would be that Mr Justice Wilcox is not functus officio, his order is still operative and one of the purposes of the writ is to seek that his order be quashed.

HER HONOUR: That is not the nature of prohibition in a sense. I mean, you have got to find something to prohibit.

MR JACOBS: It is from the judgment being acted on.

HER HONOUR: Yes, then you would want your prohibition to go to Mr Justice Hunter and you cannot do that.

MR JACOBS: No, I cannot do that under this procedure.

HER HONOUR: No. Your time, it seems to me, for bringing proceedings such as this was before the order was made, not afterwards.

MR JACOBS: Has your Honour got the case of Reg v The National Football League?

HER HONOUR: I think you did not actually hand up a list of authorities, did you?

MR JACOBS: May I just give your Honour page 202, the middle of the page, the passage that I have highlighted in green?

HER HONOUR: Yes.

MR JACOBS: I would submit, your Honour, that that covers it.

HER HONOUR: I do not know that that is the last word on certiorari, is it?

MR JACOBS: Yes, I am not aware of any later authority. I would submit, your Honour, that that would answer your Honour's difficulty.

HER HONOUR: I am not too sure that it does. The difficulty comes from this: there is no reference to certiorari as a free-standing remedy in section 75(v).

MR JACOBS: My learned junior reminds me that there is in section 33 of the Judiciary Act.

HER HONOUR: As a free-standing remedy?

MR JACOBS: As an ancillary remedy.

HER HONOUR: Yes. You see, that is the point that has been elucidated I think since the National Football League Case.

MR JACOBS: Yes. Your Honour, at least it is a point that arises for determination. There could be absolutely no prejudice if your Honour grants a rule because it is - - -

HER HONOUR: There can be prejudice because there is nothing - it seems to me, Mr Jacobs, you have come at an entirely wrong time for two reasons. One, the remedy you seek is partial and it would not prevent Mr Justice Hunter proceeding. It would not be directed to Mr Justice Hunter. You do not seek any remedy against him. Two, there is nothing to prohibit from Mr Justice Wilcox. Even if certiorari went, the matter has been proceeding in the Supreme Court. You have come well after the proceedings in the Supreme Court at a time when apparently you told Mr Justice Hunter that your objection to his jurisdiction was purely formal.

MR JACOBS: No, we took the objection - we opposed the application before his Honour Mr Justice Wilcox to cross-vest. We then put on a motion before his Honour Mr Justice Hunter trying to re-agitate the matter before him. It was then appreciated that that would be inappropriate and it was at that stage that he was informed that we would be appearing under protest. It was not a question of the objection being formal. The same point was then, for what it was worth, raised in the points of defence. So there has been a protest all along the way.

HER HONOUR: Yes, I see. I did not appreciate that. Yes, I understand the point. If Mr Justice Wilcox did not have jurisdiction, nor has Mr Justice Hunter, except that you have not brought your proceedings at a time when there was anything to prohibit and you have not sought relief against Mr Justice Hunter.

MR JACOBS: Does your Honour have McJannet's Case? I am sure your Honour is aware of that decision.

HER HONOUR: Yes.

MR JACOBS: There, of course, the Full Federal Court upheld an appeal against a decision of his Honour Mr Justice Ryan. The judgment was given. The same procedure was taken there and the effects of the judgment of this Court was substantially to declare the proceedings before the Full Federal Court - to set that judgment aside. Does your Honour - - -

HER HONOUR: No, I do not have that. You did not deliver a list of authorities, Mr Jacobs. I have no authorities. You did not deliver any.

MR JACOBS: I am sorry, your Honour. I do apologise for that. I should have provided your Honour with that. Perhaps I can give your Honour the two further cases which I have over here.

HER HONOUR: Is there something that remains to be done in this case?

MR JACOBS: In this case, your Honour, his Honour Mr Justice Hunter has to give judgment, then there will probably have to be - - -

HER HONOUR: I am talking about McJannet. Did something remain to be done in McJannet?

MR JACOBS: I may be wrong, but my reading of that case was the answer is in the negative. In effect this Court corrected the want of jurisdiction of the Full Federal Court after judgment.

HER HONOUR: It was on appeal. It was on appeal from the Full Federal Court, was it not, in this Court?

MR JACOBS: Your Honour, no appeal lay.

HER HONOUR: No, in this Court it was on appeal.

MR JACOBS: It was on appeal from Mr Justice Ryan to the Full Federal Court. The Full Federal Court then exercised its jurisdiction and overturned the judgment of Mr Justice Ryan. There was no appeal. Hence, the only remedy available was the remedy which we seek before your Honour today and the only way that the want of jurisdiction could be cured was by the grant of a writ of prohibition and which we submit is like the pebble in the water, your Honour, the rings go out forever to infinity and this is the effect of his Honour Mr Justice Wilcox's judgment. My learned junior reminds me, your Honour, that the cross-vesting decision continues until his Honour gives a decision.

HER HONOUR: I am looking at page 104. They seek to restrain the judges of the Federal Court from "acting upon or giving effect to proceeding further upon or enforcing the decision of the Federal Court".

MR JACOBS: Yes.

HER HONOUR: That seems to me to be a different problem. If you want to restrain anyone, it has got to be Mr Justice Hunter that you restrain.

MR JACOBS: Mr Justice Hunter, your Honour, the problem is he is not a - - -

HER HONOUR: Is not a federal officer. I know. That is what I say.

MR JACOBS: That is why we have not done that.

HER HONOUR: You seem to me to have very considerable difficulties in your way: jurisdictional, difficulties relating to the nature of prohibition and, of course, not to mention the difficulties with your main argument, but I have not come to that, but for my part I find very considerable difficulty in the notion that one can or should issue prohibition to Mr Justice Wilcox with the view of restraining Mr Justice Hunter from acting on an order made by him. It just seems to me to be totally alien to the nature of prohibition to do it that way.

MR JACOBS: Your Honour, it is to prohibit any further action being taken by whosoever because it would operate against the will - - -

HER HONOUR: Yes, but whom do you want the writ to issue to?

MR JACOBS: Mr Justice Wilcox and that would then avoid anybody acting further on his judgment.

HER HONOUR: No, it would not. The point, Mr Jacobs, is this: it would not. Prohibition to Mr Justice Wilcox says absolutely nothing to Mr Justice Hunter.

MR JACOBS: And it would also result in Mr Justice Wilcox's order being quashed and, if that happens - - -

HER HONOUR: Your further difficulty is if prohibition will not lie then certiorari will not lie because it will only issue as an ancillary remedy.

MR JACOBS: Yes. I can only put it on this basis, that as Marconi's pebble in the water, the judgment of his Honour Mr Justice Wilcox has the ripple effect and it continues to operate. His is not functus officio. I do not think I can put the submission on any other basis.

HER HONOUR: All right. Do you want to say anything further about your argument as to the implied repeal of one Act by the other or a partial repeal, which is in your outline of submissions?

MR JACOBS: Yes. We do not put it on the basis of an implied repeal. We put it on the basis of the submissions contained in paragraph 8 of our submissions and we say we support it in this regard by paragraph 9. If your Honour has a look at the explanatory memorandum, your Honour will see that the clear purpose of this amending legislation was to exclude the Supreme Court from dealing with matters instituted by the Minister or the Commission.

HER HONOUR: One Act stopped the commencement of proceedings in the Supreme Court.

MR JACOBS: Yes.

HER HONOUR: You want to read a limitation into a different Act by reference to that provision.

MR JACOBS: We say that under section 86A - does your Honour have 86A(1)(a)? May I just give your Honour my copy?

HER HONOUR: No, I have that.

MR JACOBS: 86(1)(a) is the so-called cross-vesting provision of the Trade Practices Act. Your Honour will see the words of limitation "other than the Minister or the Commission". What does that mean?

HER HONOUR: Yes, but that was not the section under which the order was made.

MR JACOBS: No, the order was made under the cross-vesting section. If your Honour will have a look at section 86(2), and we submit that the two sections are to be read together in order to determine the policy of the legislature, again there are words of limitation in regard to jurisdiction. We say that in the light of 86(2) there is no jurisdiction in a Supreme Court.

HER HONOUR: But the order was not made under those sections, was it? The question is to reconcile those provisions with the cross-vesting.

MR JACOBS: The cross-vesting section, yes, and for the reasons, your Honour, submitted in paragraphs 8 and 9 of our submissions we say that his Honour could not do that. Alternatively, your Honour, if those words are to be ignored on the basis of the reconciliation then his Honour Justice Gummow's judgment determines the situation, section 5.4 does not apply. There cannot be an order made under that section if you ignore these words.

HER HONOUR: Why not?

MR JACOBS: Because the Supreme Court has jurisdiction in any event and that is the effect - - -

HER HONOUR: The Supreme Court has jurisdiction in any event - - -

MR JACOBS: In any event if you ignore the words of limitation in 86(2).

HER HONOUR: No, that is not a provision vesting jurisdiction, is it?

MR JACOBS: Section 86(2) is the jurisdiction of courts.

HER HONOUR: Yes.

MR JACOBS: I have given your Honour my copy of Justice Gummow's judgment. As we read it, the position - no, I do not want it back.

HER HONOUR: No, it is not how I read the passage you flag is the difficulty. By 86(2) the State courts do not have jurisdiction with respect to proceedings instituted by a Minister or the Commission.

MR JACOBS: That is so. That is our submission, that is our primary submission.

HER HONOUR: That is right. So, if that is correct, nothing that was said in Justice Gummow's decision can be used as the foundation for an argument that there is no power to cross-vest that jurisdiction in the States.

MR JACOBS: Yes, we accept that, but we say if we are wrong and if his Honour Mr Justice Wilcox is correct then there is this paradox. If he is correct that the two Acts are to be reconciled - - -

HER HONOUR: They must be, must they not?

MR JACOBS: - - -then the result which obtains is that set out in paragraph 7. I do not know whether your Honour has had an opportunity to read that, but we would invite your attention to paragraph 7.

HER HONOUR: Let us consider it on this basis: Mr Justice Wilcox had no jurisdiction under 86A.

MR JACOBS: Yes.

HER HONOUR: On the ordinary words of the Cross-Vesting Act he had jurisdiction to cross-vest, even on the approach taken by Justice Gummow, because the proceedings having been instituted by the Commission the States had no jurisdiction under the Trade Practices Act.

MR JACOBS: Yes.

HER HONOUR: Now, you have to read words of limitation into the cross-vesting legislation.

MR JACOBS: With respect, no, your Honour. We say that the special Act overrides, the special Act was intended by the federal Parliament to be the operative - - -

HER HONOUR: Yes, but you have to read words of limitation into the Cross-Vesting Act.

MR JACOBS: Is that, with respect, correct, your Honour? We do not have to import limitation words into that section. We say that there is another section which governs the position.

HER HONOUR: Yes. You have to say that the Cross-Vesting Act does not apply, even though on its plain words it is wide enough to apply.

MR JACOBS: Yes. So we say that there is a special Act which determines the position.

HER HONOUR: But this is to deal with transfers and one is to deal with transfers and the other is to deal with cross-vesting.

MR JACOBS: We say it is six of one and half a dozen of the other because your Honour will see it is virtually the same criteria. If your Honour will refer to 86(2)(a) and (b), you will see that they are the same criteria, the matter arises out of or was related to proceedings that is pending, otherwise in the interests of justice. It is virtually a mirror. The only difference that his Honour was able to point to - may I just point this out to your Honour - is, if your Honour will go to his Honour Mr Justice Wilcox's judgment, which is an annexure to Mr Milios' affidavit. If I can take your Honour to page 23 at about point 5.5, "The more significant matter is that section 5.4"- - -

HER HONOUR: Yes.

MR JACOBS: So this was the only substantial point of difference that his Honour could point to in the two sets of legislation and in 5.4 the cross-vesting could take place to any court, even the local magistrates court or whatever, but substantially the legislation is otherwise the same with the same criteria set.

HER HONOUR: Yes. Now, have I got jurisdiction to remit?

MR JACOBS: In our submission, yes, your Honour.

HER HONOUR: Where is my jurisdiction to remit?

MR JACOBS: We would rely on the McJannet Case. We would say that your jurisdiction comes from the Constitution.

HER HONOUR: I know where my jurisdiction comes from. I am just asking does my power of remitter under the Judiciary Act extend to these matters? Is there any limitation on my - what I am thinking of doing, Mr Jacobs, is this: I am thinking of remitting this matter to the Full Federal Court for its consideration.

MR JACOBS: Yes.

HER HONOUR: I realise it has got no jurisdiction on appeal under the Cross-Vesting Act, but I normally have jurisdiction to remit under - - -

MR JACOBS: I think your Honour has that power to remit, but may I ask your Honour to allow me to do this: would it inconvenience your Honour if, within the next hour, we just send up a short note to your Honour's associate.

HER HONOUR: No, I will just have a little look at it now or are you required elsewhere?

MR JACOBS: My learned junior reminds me of section 44.

HER HONOUR: Yes, thank you. Yes, there is no apparent limitation on my - now, what I am proposing is of my own motion, Mr Jacobs, to remit this application for prohibition to the Federal Court - - -

MR JACOBS: If your Honour pleases.

HER HONOUR: - - - and it would presumably then proceed before the Full Federal Court. Does Mr Registrar know if I need to direct that it be referred to the Full Federal Court.

DEPUTY REGISTRAR: I think you do, your Honour. Normally you just remit them to the registry. I think if you want it to go to the Full Court you need to direct.

HER HONOUR: Yes, the matter having come from Mr Justice Wilcox, the only appropriate course is really for it to be remitted to the Full Federal Court and that is what - have you got any objection to that course?

MR JACOBS: None whatsoever.

HER HONOUR: I would not make any order at this stage. I would just simply remit the application to the Full Federal Court for hearing and determination by them and that is the order I make, Mr Registrar.

MR JACOBS: We are indebted to your Honour.

AT 9.34 AM THE MATTER WAS CONCLUDED