Re: Brown and ORS Exparte Amann and ANOR S118/1998 [1998] HCATrans 349 (25 September 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S118 of 1998

In the matter of -

Applications for Writs of Prohibition and Certiorari against SUSAN AGNEW, formerly a Registrar of the Federal Court of Australia

First Respondent

THE HONOURABLE BRIAN JOHN MICHAEL TAMBERLIN, a Judge of the Federal Court of Australia

Second Respondent

THE JUDGES AND REGISTRARS OF THE FEDERAL COURT OF AUSTRALIA

Third Respondents

MARTIN RUSSELL BROWN, Liquidator of Amann Aviation Pty Limited and AMANN AVIATION PTY LIMITED (IN LIQUIDATION) and BP AUSTRALIA LIMITED

Fourth Respondents

Ex parte -

ROBERT OTTO AMANN and VANDA RUSSELL GOULD

Prosecutors

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 SEPTEMBER 1998, AT 2.00 PM

Copyright in the High Court of Australia

__________________

MR N. PERRAM: May it please the Court, I appear for the prosecutors. (instructed by Henry Davis York)

HER HONOUR: Yes, thank you, Mr Perram. I have a certificate from the Senior Registrar who certifies that she has been informed that the first, second and third respondents in this matter do not wish to be represented at the hearing of this application and will submit to any order of the Court save as to costs.

MR PERRAM: If it please the Court.

HER HONOUR: That, however, does not relieve you of the burden of convincing me that I should refer this matter to the Full Court. I presume you do not ask anything other than that?

MR PERRAM: We ask no more than that, no.

HER HONOUR: That is good. My difficulty is this - I might be able to assist you, Mr Perram - it seems to me that Mr Gould cannot do this.

MR PERRAM: There is a powerful argument that there is an issue estoppel.

HER HONOUR: Yes.

MR PERRAM: The contrary argument is the one which I have referred to in the - - -

HER HONOUR: I thought it might go beyond issue estoppel.

MR PERRAM: And perhaps be a res judicata itself.

HER HONOUR: Yes, or even worse, be vexatious.

MR PERRAM: If I could just deal with the res judicata issue before I deal with the vexatious one. The problem with it being a res judicata would be, of course, that all the relevant parties to the res were not before the High Court in Gould v Brown itself so it probably cannot formally be a res judicata, leaving aside the argument which is adumbrated - - - HER HONOUR: But should they not have been served? No, they were not - - -

MR PERRAM: They were not parties - - -

HER HONOUR: They were not parties to the proceedings, but Mr Gould was.

MR PERRAM: Mr Gould undoubtedly was most definitely a party in Gould v Brown. It perhaps was a difficulty in Gould v Brown itself that those persons were not parties and there was no application to set it aside. There is some reference to that in the minority judgments in the case. There was a declaration sought that the order was made without jurisdiction and there is some discussion in Justice Gummow's judgment that that was inappropriate in circumstances where there was no application to set aside the winding up order.

What I have just said, of course, is no answer to the proposition that there is an issue estoppel. In my submission, it probably is an answer to a res judicata but there is no great happiness in falling on one sworn rather than the other because if there be an issue estoppel then the matter is concluded. All that one can say about the issue estoppel is that which I have put in the written submissions, namely that if Mr Amann's application were to succeed, ultimately, and the winding up order were to be set aside, one would have a very curious logical situation.

HER HONOUR: I do not know about whether you would ever succeed in having the winding up order set aside on certiorari in the circumstances when that is a discretionary remedy.

MR PERRAM: Precisely, the writs are, of course, discretionary and there are factors which weigh against the issuing of the writs in a matter like this one. The obvious one, of course, is the delay which is being allowed to take place before the application is being made. What can be said about that - - -

HER HONOUR: Do you not achieve the same purpose, in a sense, if the matter proceeds on the application of Mr Amann?

MR PERRAM: Yes. Mr Amann will proceed. Mr Gould, of course, would like to be in a position, probably, whereby he can say he is involved in the proceeding but that is not a legitimate reason for the making of the writs. In my submission, one has to look at the application separately. If your Honour is against Mr Amann's application, there is simply nothing which can be said in defence of Mr Gould's application.

HER HONOUR: I think there are difficulties with Mr Amann's too.

MR PERRAM: Yes.

HER HONOUR: There might be an Anshun-type estoppel.

MR PERRAM: Only if the effect of the judgment in Gould v Brown itself was an in rem judgment. There is no doubt that the winding up order is in rem but the actual judgment in Gould v Brown is not an in rem judgment for the very reason that the relevant parties in the application before it - sorry, the relevant parties were not there and there was, in fact, no application to set aside the winding up order.

Had there been an application to set aside the winding up order in Gould v Brown and had that been dismissed, there would be a very potent argument that the decision in Gould v Brown must stand for the proposition that the winding up order was not liable to be set aside, but there was no such application before the Full Court.

HER HONOUR: Well, you are aware that there may be difficulties about Mr Amann?

MR PERRAM: There are undoubtedly difficulties about Mr Amann.

HER HONOUR: Yes. Well, I can tell you this at this stage: if the application were only by Mr Amann, I would refer it to the Full Court, notwithstanding the difficulties, and leave those difficulties to be agitated in the Full Court if need be.

MR PERRAM: If I could quarantine - if only for my own purposes - Mr Gould away from Mr Amann for a moment. If that causes this situation, namely that the formulation of the documentation which is before your Honour is defective in that it is not possible, as it were, to pull Mr Amann out of Mr Gould's application, that is something which can be very, very promptly remedied.

HER HONOUR: Yes, you can do that. If you were to do that, you might also take the opportunity to have a look at the affidavit which seems to have some wrong dates in it. It does not matter.

MR PERRAM: I apologise. I am sorry about that, your Honour.

HER HONOUR: Your solicitor seems to know about them.

MR PERRAM: Mr Gorry is very familiar with this litigation, I suspect.

HER HONOUR: Yes.

MR PERRAM: If that is a course we could take in relation to Mr Amann's application, if we could have that leave to make that application subject to the documents being sorted out so that it is clear that Mr Amann's application is in a different category. Does your Honour wish to hear me any further on Mr Amann?

HER HONOUR: Not on Mr Amann. But if you press the application with respect to Mr Gould I need to be persuaded that there is no issue estoppel, and I need to be positively persuaded of that.

MR PERRAM: I looked very carefully to see whether there is any situation which has ever been similar where the proposition has been contended that, in effect, the issue estoppel would be to outflank the operation of the Constitution.

HER HONOUR: Mr Gould, however, was a moving party in the other proceedings, was he not?

MR PERRAM: The moving party, your Honour.

HER HONOUR: The moving party?

MR PERRAM: Yes.

HER HONOUR: And he raised, in those proceedings, the precise issue which he seeks to raise here.

MR PERRAM: And there is an issue estoppel. I will make that concession. Undoubtedly, if there was ever a circumstance where an issue estoppel arose, this must be it. The submission does not try to avoid the proposition there is an issue estoppel, the argument seeks to outflank the issue estoppel with the proposition that where one is faced with the situation, unusually, in my submission, that the very same winding up order may itself be set aside, not at Mr Gould's instance but at someone else's instance, then one does have this rather unusual situation that the Federal Court appears to have jurisdiction - - -

HER HONOUR: That is a tad hopeful, is it not?

MR PERRAM: It is inappropriate for Mr Gould to canvass on this application what the likely outcome - what any of these proceedings may be but positing as a logical proposition that there is a possibility, one cannot say that the Amann's application is doomed.

HER HONOUR: Well, when I say it is a tad unlikely, it would only be certiorari that would lie in relation to the winding up order, would it not?

MR PERRAM: Yes.

HER HONOUR: And that is discretionary.

MR PERRAM: Yes, and there are substantial arguments as to why the discretion ought to be exercised against the making of any orders absolute. But one cannot exclude the possibility that the discretion will be favourably exercised. If your Honour were of the view that the discretions would inevitably be exercised against Mr Amann so that the writs would never issue, then - - -

HER HONOUR: No, no. Well, with respect to the winding up order.

MR PERRAM: He is in a different situation because he may, in fact, get prohibition in relation to the examination of this.

HER HONOUR: Yes. What I am saying is prohibition is not discretionary.

MR PERRAM: Yes. Perhaps, if I can put it this way, if I apprehend what your Honour is saying, that although Mr Amann's application can be made to a Full Court, your Honour is not allowing as a possibility the proposition that his application for certiorari may succeed, which is not fatal to the application because he also applies for prohibition, but in the event that the application for certiorari fails, as there may be powerful discretionary considerations against it, the logical difficulty which I posit in relation to the issue estoppel argument does not arise.

For your Honour to get to that, your Honour has to be satisfied at the requisite level that there is no prospect whatsoever of certiorari being granted against Mr Amann and, in my submission, although there are some - - -

HER HONOUR: You see, the difficulty is this, there was a refusal to, was there not - sorry, only in the minority view. Even on the minority view in Gould v Brown you could not get - - -

MR PERRAM: There was no application.

HER HONOUR: There was no application.

MR PERRAM: What was wrong in the minority view in Gould v Brown was that there was no application such as the one currently before this Court, before your Honour in this chambers application, and for that reason it was inappropriate to grant declaratory relief which was sought.

If your Honour were not of the view that Mr Amann's application for certiorari was doomed, then there would remain the logical possibility that there might be the issue of a writ of certiorari in respect of that application. If one gets to that stage - one is not sure if one does, but if one does get to that stage, then the logical difficulty which I have referred to does in fact arise. In terms of affirmative persuasion that your Honour ought to take the course that I propose, all that can be said is that covering clause 5 of the Imperial statute makes the Constitution binding on all courts and however high the law of issue estoppel may rise, it does not rise that high.

If I could just say this: the situation which arises on this application is most unusual. It is not quite the same as a disgruntled litigant in a constitutional matter coming back and saying, "I want to do it again", it is a unique situation because there is someone else who probably ought to have been there the first time but who was not, coming along at the same time and saying, "I want to do that". It is almost impossible to imagine a situation outside that which obtains where orders in rem are concerned where this situation arises. It just cannot happen in litigation not involving orders in rem. It is the in rem nature of the orders which gives rise to what is, on its face - let us be frank - a fairly unusual application. But once the in rem order of the nature is appreciated, then the logical difficulty to which I have referred follows and, in my submission, the effect of covering clause 5 in those factually unusual situations is as the argument suggests it is. Otherwise, one will have that difficulty that the Federal Court will have jurisdiction with respect to nobody but solely, in Mr Gould's case, with respect to him because of the issue estoppel and the Federal Court will be saying we have jurisdiction in this matter, notwithstanding the Constitution prohibits us having jurisdiction in this matter, because there is an issue estoppel arising out of Gould v Brown.

In my submission, if Chapter III has the operation for which Mr Gould and Mr Amann contend, and this Court holds that it has that operation, how can an issue estoppel - undoubtedly, there are public policy reasons why there ought to be an issue estoppel - but how can an issue estoppel stand in the face of the Constitution? That is the short argument, and it derives its efficacy from covering clause 5.

HER HONOUR: It is an argument that - - -

MR PERRAM: It would be an interesting spectacle if - - -

HER HONOUR: It is an argument, however, that may result - which if decided against you - if it were decided that there were an Anshun-type estoppel and also an issue estoppel, it would mean that the matter of substance would not be considered - - -

MR PERRAM: In relation to Mr Amann's application?

HER HONOUR: In relation to either. If it were decided that there were an issue estoppel in Gould's Case and an Anshun estoppel in Mr Amann's, then you would never get the issue decided, would you, or you may not get the issue decided?

MR PERRAM: That is so. I have to make the concession that on that outcome, if the extended operation of Henderson v Henderson would catch Mr Amann's application and if the Court reached that view, then the logical problem does not arise. As I said, the logical problem only arises in the hypothetical event that Mr Amann's application is successful. If Mr Amann's application fails then the whole issue collapses like a house of cards. One approaches the argument upon the assumption that that application has succeeded.

If one is satisfied at that threshold level that it cannot be said that Mr Amann's application for certiorari is so hopeless that it could never possibly be acceded to then, in my submission, one is forced, perhaps regrettably, on to the horns of a dilemma which is set out in the written submissions. That is not to answer your Honour's question but, in my submission, one has to engage with the proposition that the application for certiorari cannot be condemned at this stage as being hopeless and, once one gets to that, one cannot avoid the logical difficulty. That is my submission.

HER HONOUR: Yes, thank you. Well, I will refer the application to a Full Court as it stands. Perhaps your solicitor might like to check the affidavits.

Now, you have already one matter in December, is that correct?

MR PERRAM: The two Wakim matters are set down for 1 and 2 December.

HER HONOUR: And they are set down for two days?

MR PERRAM: Two days.

HER HONOUR: This matter could comfortably be heard with it, could it not?

MR PERRAM: The issues appear to be almost identical; not precisely, but the essential constitutional issue is the same; the statutory structure is a little bit different.

HER HONOUR: Well, there is also the - - -

MR PERRAM: The estoppel arguments now.

HER HONOUR: Yes. Well, can the papers be - have you been in contact with solicitors on the other side?

MR PERRAM: They knew about the application today and they are aware of it. They have not been contacted in relation to the preparation of either orders or an application book but, having regard to the time which is now available, the application book can and probably ought to be prepared with great expedition.

HER HONOUR: Yes. Did you give 78B notices in the other matter?

MR PERRAM: In the Wik and the Wakim matters?

HER HONOUR: Yes.

MR PERRAM: I think section 78B notices went out in that a few days ago.

HER HONOUR: Very well. Well, you will have to give 78B notices in this matter.

MR PERRAM: The 78B notices probably ought to refer to the matter which has just passed between your Honour and myself as to what the impact of the issue estoppel is on covering clause 5.

HER HONOUR: Yes.

MR PERRAM: There will have to be a separate one on that.

HER HONOUR: Yes. The application books should be got in within 10 days, I think. Can you do that?

MR PERRAM: If it please the Court. Surprisingly, Mr Gorry agrees.

HER HONOUR: Yes. Very well, then if that can be done.

MR PERRAM: If it please the Court.

HER HONOUR: Is there anything else I should - - -

MR PERRAM: No, that is all, your Honour. Perhaps your Honour should certify for counsel.

HER HONOUR: Just this once. Yes, I will certify for the attendance of counsel; the matter will be referred to a Full Bench; 78B notices to be given within seven days and application books to be filed within 10.

MR PERRAM: If it please the Court.

HER HONOUR: The Court will now adjourn.

AT 2.17 PM THE MATTER WAS CONCLUDED