Amann & Anor, Ex parte; Re Brown & Ors S118/1998 [1999] HCATrans 297 (19 August 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S118 of 1998

In the matter of -

An application 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 LIQ) and BP AUSTRALIA LIMITED

Fourth Respondents

Ex parte -

ROBERT OTTO AMANN and VANDA RUSSELL GOULD

Applicants/Prosecutors

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 19 AUGUST 1999, AT 9.32 AM

Copyright in the High Court of Australia

_______________________

MR S.D. RARES, SC: If your Honour pleases, I appear with my learned friends, MR N. PERRAM and MR C.S. WARD, for the prosecutors. (instructed by Henry Davis York)

MR A. ROBERTSON, SC: May it please the Court, I appear with my learned friend, MR M.A. JONES, for the first-named and second-named fourth respondents, the moving parties on the motion before your Honour. (instructed by Nash O'Neill Tomko)

HER HONOUR: Yes. Mr Robertson, I have read what you have to say.

MR ROBERTSON: We have not got a lot to add, your Honour.

HER HONOUR: There seems to be some disconformity between the reasons and the order that ultimately issued.

MR ROBERTSON: We so submit. The formal parts, your Honour, are with the notice of motion on which we move, just filed on 25 June in this Court, if your Honour has that. We also move on the affidavit of Michael Francis O'Neill sworn 25 June 1999 which does really no more than annex correspondence showing that there is an issue between the parties in two respects. One is in relation to whether the words "in the Federal Court" should be included in order 3; the other is in relation to the costs order.

Your Honour, we have set out really what we wish to say in the written outline and - - -

HER HONOUR: Does your motion indicate the precise respects in which you say the order should be amended?

MR ROBERTSON: Yes. Does your Honour have the form of the order as pronounced by the Court on 17 June, either in the original transcript judgment or in a law report? I have certainly got a copy that I can make available to your Honour.

HER HONOUR: Yes, I certainly have that.

MR ROBERTSON: Perhaps I can just take your Honour to the text of that. Can I ask your Honour which version your Honour has, the transcript version rather than a law report version?

HER HONOUR: I have the pamphlet version.

MR ROBERTSON: The pamphlet version, thank you. If your Honour looks at the Re Brown page, which in my copy is about five pages in from the front, what we were proposing in the motion was that if your Honour looks at order 3 and reads the third line, "taking any further steps" then adding the words, "in the Federal Court under the order for winding up". So it would merely be to add the words "Federal Court under the order for" after the words "steps in the". So it would read in full, "taking any further steps in the Federal Court under the order for the winding up".

Then we would also propose that there be a new order 6. That is, "The second-named applicant/prosecutor to pay the respondents' costs." Each of those, in our submission, would reflect - - -

HER HONOUR: The second-named applicant to pay - - -

MR ROBERTSON: Your Honour has a copy of the notice of motion.

HER HONOUR: It will be the respondents' costs of his applications.

MR ROBERTSON: That would be so. I think we had really copied, in the proposed 6, what appeared in 5 which just said "Respondents to pay the first-named applicant's costs", and it is really the converse of that, I suppose.

HER HONOUR: Yes.

MR ROBERTSON: We noticed, your Honour, looking at the law reports, for what it is worth, that both the headnote writers in the Australian Law Reports and in the Australian Law Journal Reports had put that the prohibition should issue to prevent further steps in the Federal Court under the order, but in the Australian Law Report it might surprise his Honour Justice Kirby to know that he was taken to be agreeing with that. So we may have to draw - - -

HER HONOUR: One gives up being surprised by headnotes.

MR ROBERTSON: If your Honour pleases.

HER HONOUR: Yes, Mr Rares.

MR RARES: Your Honour, we sent some written submissions up late yesterday. Could I hand up the actual order which was made that is the subject of the writ of prohibition, whatever its form is to be.

HER HONOUR: Yes.

MR RARES: The legislation clearly sets out a statutory scheme for winding up by the court and once there is prohibition to be issued, we submit that the formulation of the order by the Court as in the pamphlet, without the assistance of the Australian or other law reports, is correct, that really what the Court is ordering is that there be no further steps pursuant to an order made without jurisdiction, by either of the relevant respondents for whom my learned friend appears. That is perfectly in conformity with the reasons and - - -

HER HONOUR: It may mean that there is no difference, in effect.

MR RARES: It may, but we are cautious that our learned friends are seeking to take some point about it.

HER HONOUR: They are seeking to preserve their rights to proceed elsewhere in the event of remedial legislation which I should have thought was what the judgment was at least hypothesising - which possibility was being hypothesised in what was said.

MR RARES: That, your Honour - as we understand the judgment, or if one looks at the reasons of Justices Gummow and Hayne, with whom the Chief Justice and your Honour agreed on this point, starting at about page 62 of the pamphlet, in paragraph 163 the prohibition that is sought is identified and the problem in paragraph 164 at about five lines into the paragraph:

But if prohibition goes to prohibit further steps under one of those orders - the order for winding up - a curious result would ensue: an order that the company be wound up by the court would stand, but no step could be taken in the Federal Court to give further effect to it. In our view, prohibition should issue to prohibit further steps in the Federal Court under the order for winding up. It was an order made without jurisdiction and further effect should not now be given to it by that Court. Nevertheless, the order for winding up should not be quashed.

So the reasoning was that the order having been made, and having stood for so long, should remain as an order for whatever worth it had, but that no more should be done under it. The Liquidator - - -

HER HONOUR: In that court.

MR RARES: But, your Honour, it cannot be done anywhere else.

HER HONOUR: At the moment.

MR RARES: That is the order that has been made. That is what the Court is saying. There is no effective order authorising activity in a winding up from henceforth because you have this sort of Marie Celeste situation with the company that there is an order that it be wound up by a court, and no steps can be taken to do that. Now, we say that that is the prohibition and the words "by that court", in our submission, if added to this order would create an ambiguity as to what the Court was saying. The whole purpose of a writ of prohibition is to say that someone who is being prohibited shall not act on an invalid authority or a void authority and the Court has pronounced that the authority that the Federal Court purported to confer upon the Liquidator and the status on the company was not one which can further be acted on.

Now, if remedial legislation is passed and seeks to specifically address this case, there will be other questions, no doubt, to come before this Court in terms of constitutionality, but we submit that the order as formulated correctly reflects the result which their Honours sought to produce and that it is in a correct form. Now as to the "without costs", all you have is the disconformity between the reasons and the orders and one does not know whether there is a typographical error in one or the other. We cannot - we have tried to assist and say there are rational bases for each view. The question really is one ultimately for the Court to pronounce. But we had taken the view that the judicial act of the orders were the considered view the Court had come to.

HER HONOUR: You did not wish to say anything in reply?

MR ROBERTSON: No, your Honour.

HER HONOUR: I am satisfied that there is a disconformity between the reasons and the orders and that the reasons should be given effect to by amendment of order 3 by the deletion of the word "in" in the phrase "in the winding up of Amann Aviation Pty Limited (in liq.)" and substitution therefor "in the Federal Court under the order for".

In addition, there should be an order 6 in the following form, "Second-named applicant to pay the respondents' costs of his, the second-named applicant's, applications."

I do not think there should be any order for costs of today.

Is there anything else that need be done?

MR ROBERTSON: I was thinking of Order 71 rule 62 but in light of what your Honour has just said it is probably not necessary for your Honour to certify.

HER HONOUR: I would think not. Thank you. Court will now adjourn.

AT 9.45 AM THE MATTER WAS CONCLUDED