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High Court of Australia Transcripts |
Melbourne No M23 of 2000
B e t w e e n -
EDENSOR NOMINEES PTY LTD
Applicant
and
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
First Respondent
YANDAL GOLD PTY LTD
Second Respondent
YANDAL GOLD HOLDINGS PTY LTD
Third Respondent
NORMANDY MINING LIMITED
Fourth Respondent
NORMANDY MINING FINANCE LIMITED
Fifth Respondent
NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD
Sixth Respondent
NORMANDY MINING HOLDINGS PTY LTD
Seventh Respondent
Office of the Registry
Melbourne No M20 of 2000
B e t w e e n -
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
Applicant
and
EDENSOR NOMINEES PTY LTD
First Respondent
YANDAL GOLD PTY LTD
Second Respondent
YANDAL GOLD HOLDINGS PTY LTD
Third Respondent
NORMANDY MINING LIMITED
Fourth Respondent
NORMANDY MINING FINANCE LIMITED
Fifth Respondent
NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD
Sixth Respondent
NORMANDY MINING HOLDINGS PTY LTD
Seventh Respondent
Applications for expedition
HAYNE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON TUESDAY, 28 MARCH 2000, AT 3.05 PM
Copyright in the High Court of Australia
MR R.D. STRONG: If your Honour pleases, I appear for the Australian Securities Investment Commission. (instructed by the Australian Securities Investment Commission)
MR N.J. YOUNG, QC: If your Honour please, I appear with MR M.C. GARNER, for the other respondents, that is the two Yandal Companies and the four Normandy Companies. (instructed by Freehill Hollingdale & Page)
HIS HONOUR: Now, Mr Hayes, it is your application, I think.
MR HAYES: It is, your Honour. We have reduced our argument in short written form if that is convenient. We have just handed it out to the parties' representatives.
HIS HONOUR: Thank you.
MR HAYES: I might just point out in point 3, your Honour, that Normandy has now lodged its special leave application and - - -
HIS HONOUR: I think we have a full house.
MR HAYES: We do, and the ASIC has its own application for expedition. That seems to be common ground amongst the parties.
HIS HONOUR: Well then, is the expedition of these matters opposed by any party at the Bar table, other than such opposition as I might offer?
MR HAYES: Precisely. That is the other side of the Bar table.
MR YOUNG: We are the only ones that do not have an application, your Honour, and we support the application for expedition.
MR HAYES: The only issue has been that my learned friends for ASIC have said that May would be more convenient and we want the earliest date which is, theoretically, April, but April, we are told by the Registry, is full.
HIS HONOUR: It may be - and I emphasise the hypothetical nature of it - it may be that it would be possible to bring these applications on in Sydney on Tuesday, 18 April, in the afternoon. Whether that will be possible will depend upon some other events and the progress of some other applications but if there is to be expedition, the expedition that I would have in mind is a set of direction that would get the parties ready and application books filed no later than 11 April, so that that would really cause some considerable abbreviation of times that might ordinarily take place. But before we come to that and the detailed consequences of it, can I just see if I understand the nature of the issues that are likely to be raised.
First, understanding as I do that the question may, in truth, be embarrassing and that, no doubt, will mould the answer, but are all of these applications freestanding applications or are some of them dependent on the fate of other applications? Your's, Mr Hayes - I think ASIC is first in time, is it not? It is M20?
MR YOUNG: Yes.
HIS HONOUR: You are next at M23, and Yandal Gold at M24. So far as your application is concerned, would you seek to prosecute it if ASIC's application were refused?
MR HAYES: Yes.
HIS HONOUR: Yes. Mr Young?
MR YOUNG: We are in the same position, your Honour, yes.
HIS HONOUR: Now, Mr Strong, is ASIC's application one that stands independently of the success or failure of the other applications?
MR STRONG: Yes, it is, your Honour.
HIS HONOUR: Well then, the Court presently has fixed on 9, 10 and 11 May - it is a series of matters but, in effect, two matters which will agitate questions of validity of the remedial legislation of Federal Courts (State Jurisdiction) Act, those being the matters of Re Transworld Marine Agency; Ex parte Rolfe and Residual Assco Group v Spalvins and it may be, therefore, that in so far as any of these applications seek to agitate questions of validity of the remedial legislation, those applications may be overtaken by events.
Now, without going into the detail of the contentions, Mr Hayes, can you put as shortly as you can what other issues, other than any question of validity, would arise?
MR HAYES: Yes. We have done that in paragraph 6. The first is raised by ASIC's application.
HIS HONOUR: Why does that arise if it is an exercise of federal jurisdiction and if - well, how does it arise?
MR HAYES: It arises in the context of Edensor's challenge to the power of the Federal Court, even at the suit of ASIC, to enforce certain provisions of the Corporations Law, the argument being that section 58AA of the Corporations Law, in referring to "Court", does not include the Federal Court when it is exercising federal jurisdiction. And that argument - - -
HIS HONOUR: But why was the Federal Court exercising federal jurisdiction otherwise than as a result of the engagement of ASIC if ASIC is relevantly to be seen as the Commonwealth?
MR HAYES: Well, there were trade practices claims.
HIS HONOUR: Added lately?
MR HAYES: Added lately.
HIS HONOUR: In unusual circumstances.
MR HAYES: As jurisdiction insurance, as it was put by his Honour.
HIS HONOUR: Yes, I understood that.
MR HAYES: And applauded by counsel for ASIC.
HIS HONOUR: So that federal jurisdiction being engaged, so it is said, in that fashion, there being a claim made under a law made by the Parliament, what is the point about ASIC's standing?
MR HAYES: The ASIC, by their special leave application, say that the Full Court got their first set of reasons wrong in not upholding their submission that ASIC has standing in any Federal Court, including in relation to Corporations Law, and that section 58AA and the other impediments to jurisdiction do not apply because ASIC has got a right to have matters litigated in the Commonwealth or Federal Courts.
HIS HONOUR: Yes.
MR HAYES: We say that the issue that we are concerned with is different to that. We are concerned with the findings by the Full Federal Court in its second set of reasons that this would be an invalid judgment or an ineffective judgment. That is a pure issue of construction of the jurisdiction of courts legislation, from our point of view. So, our argument is totally freestanding. But the arguments that are sought to be raised are (a) to (e): (a) was the ASIC; (b) is everyone's argument, the proper construction; (c) is but an aspect of (a) and (b), and (d) and (e) are the specific questions raised by the State Jurisdiction Act of Victoria.
Now, if it should turn out that the jurisdiction of courts legislation is invalid, it must be said that that would have the effect that our argument about interpretation would potentially not matter because there would be nothing to save that judgment but the ASIC argument would still stand in the way. If it was right and the Full Court was wrong, then it seeks to enforce its standing regardless of the State Jurisdiction of Courts Act.
HIS HONOUR: I must say I am a bit confused by introducing notions of standing and perhaps those are debates for another day. But on one view of what has happened - I think it may be the view propounded by ASIC - the Federal Court had jurisdiction. It had jurisdiction because there was a claim made under a law made by Parliament. Jurisdiction was jurisdiction over the whole matter. The whole matter included the accrued jurisdiction issues in relation to corporations' questions, if so I can put it, arising under State law, therefore the Federal Court judgment was a valid judgment. Is that, as you understand it, a way in which the argument is put?
MR HAYES: It is a way.
HIS HONOUR: And if that argument were made and accepted, we would never get to questions of State Jurisdiction Act. We may along the way have to consider questions of what is mean by "accrued jurisdiction" and the like.
MR HAYES: That is right, and there are about half a dozen different ways of putting that kind of argument that ASIC raised and some or all of them they will be seeking to agitate on their leave application.
HIS HONOUR: Yes. But the shape of the argument on an appeal, if leave were to be granted, would be much affected by the disposition of the pending challenges to the validity of the State Jurisdiction Acts, would it not?
MR HAYES: Yes. That being so, were leave granted, and granted in enough time, it is my instruction to explore the possibility of either being heard at the same time or asked to be heard at that matter, it so directly affecting our position.
HIS HONOUR: There is already one such issue to be agitated before a single Justice of the Court on 9 April, I think it is, in Sydney. Already the cast engaged in the debate is very large. At least as a pure matter of first impression, it is to be doubted that much will be gained by multiplying the numbers engaged.
MR HAYES: It might be said in answer to that argument, the force of which is obviously strong, that we are in a different, if not, a unique position, because of the issues of accrued jurisdiction that are raised here which, from the papers I have read about Spalvins would put us into a slightly different, if not materially different, situation.
HIS HONOUR: But all the more reason why, if the Court can address a narrower issue in this case, so much the better.
MR HAYES: Well, yes, your Honour, there are certainly some narrower issues that do not stand to rise or fall on the Spalvins' litigation.
HIS HONOUR: What are we to do if we, (a) expedite leave; (b) leave is granted; (c) when do we put you in for a hearing? Do we put you in for a hearing before judgment goes down in the challenges to the legislation? That would seem to be not a very efficient use of time.
MR HAYES: That has the potential for a very substantial delay, depending on the complexity of that judgment.
HIS HONOUR: Yes.
MR HAYES: This litigation has now been going for a very long time and the Full Federal Court, in its wisdom, although it heard the argument on the basis it would decide everything, only decided the narrowest of issues and so this judgment stands; parties are aggrieved by it; ASIC wants to maintain that there is a lot of money out there in the Federal Court coffers at the moment and there is a strong argument, we would submit, for getting this thing heard and determined as quickly as possible, quite apart from what is happening in that other case.
HIS HONOUR: The force of that is something I do not think I need much persuasion on. The difficulty I am trying to explore is who gains what from pushing this on? Simply giving the parties the warmth of the feeling that they have got on quickly and been heard is of little help to them if their judgment is inevitably going to have to wait well behind - - -
MR HAYES: It does not inevitably have to wait, your Honour, because, if, for example, our argument on construction of the State Jurisdiction of Courts Act is upheld, then the issue of validity does not matter.
HIS HONOUR: Yes.
MR HAYES: If the ASIC argument, on its standing in the Federal Courts, is upheld, then probably, the State Jurisdiction of Courts Act is irrelevant. So, there are arguments which, if either side is correct, would be decisive of the matter, albeit not fully decisive, because there would be other positions still awaiting judgment, and it would not only be the Spalvins' matter but potentially the Hughes' matter which we have read the documents in, and although it is a criminal law matter, has the potential to apply to ASIC's standing generally under the Corporations Law. So, there is that as well.
HIS HONOUR: As I say, this arch reference to ASIC's standing generally in the Corporations Law matters is not one that conveys a great deal to me, but there we are.
MR HAYES: No. Well, I accept that. I think the two bests reasons I can give your Honour for why we ought to be able to get more than a warm and fuzzy feeling, but there is something practical, are the two that I have just given. They are stand-alone arguments. Mind you, if our argument was to fail, we would still be cheering on the parties arguing our interests in Spalvins.
HIS HONOUR: If the parties were left in a way which may require most careful exploration before it could be contemplated, let alone accepted, to abide the outcome of the validity issue, that is, if the parties were to be directed towards fighting their battles on the non-validity issues, leaving validity to fall whichever way it might as a result of the argument of the other matters, is there any advantage to be gained? Is there any disadvantage of a kind that would make it an impossible basis upon which to go forward?
MR HAYES: It seems to me that it is practicable but it would require careful thinking through and instructions.
HIS HONOUR: Plainly. I am not seeking to - - -
MR HAYES: I understand that but, in principle, your Honour, it is worth exploring. Those instructing me believe there are other arguments as to validity that are not yet directly raised in the Spalvins' proceedings, for example, so we would need to think through all of those issues. But, yes, our principal concern lies in the narrow matters that I have put to your Honour, that we are caught up in this broader picture that is emerging with all of these validity-type arguments and there is an awful lot of basic sense in what your Honour floats but it would take some careful thinking through and instructions.
HIS HONOUR: Yes. But at least at first blush, and it is no more than that, it would seem to me that validity questions are ones which, if determined in other litigation, have, if you like, an inevitable flow-on into this action and it is not, at least at first blush, something which could be said by an opposite party to be a point that is waived or you are estopped from relying on it. Either the court below had jurisdiction or it did not.
MR HAYES: That is right.
HIS HONOUR: If it did not, then what consequences follow from it.
MR HAYES: That is right.
HIS HONOUR: If it did have jurisdiction, what consequences follow from that. Now, as I say, it is no more than the very rawest of raw ideas. It is something, though, which, if we are to expedite this matter, it may be would require close examination if a Full Court decided that leave should go, because it may affect the terms on which leave was granted.
MR HAYES: Yes, your Honour.
HIS HONOUR: And it would be as well if all parties came with their views more fully developed than could possibly be done today.
MR HAYES: Yes, your Honour. We would envisage that if your Honour was to grant us some expedition in the hearing of leave we would have not only formulated a position but tried to discuss it with the other parties before we went before the Court on the special leave application.
HIS HONOUR: On the leave application, yes. Now, if I were minded to grant expedition and if it proved that Tuesday, 18 April in Sydney were to be a possible date, it would seem to me that, working backwards, the application books would have to be filed and served no later than 4 pm, 11 April, because the members of the Court have got to have time to look at them. So that a week before the hearing date has to be the end process of preparation from the parties' point of view. Now, that, at once, abbreviates time quite considerably, and it seems to me that if you are then to work towards an 11 April filing for application books, your timetable might have to be something like this: each applicant to put on its summary of argument by 4 pm, 31 March; each respondent to put on its summary of argument by 4 April; each applicant to put on its proposed index of documents by 5 April; each applicant to put on any reply by 6 April.
Now, that timetable is very tight. It would run: applicants' summary of argument, 31 March; respondents' summary of argument, 4 April; proposed index of documents, 5 April; reply, 6 April; books by 11 April. Now, a couple of things about that. First, the practicality of it but, secondly, that is presupposing that each application would warrant its own separate applicant's summary of argument and each respondent would then be replying to that particular application. So that it would be treating each application as genuinely a freestanding application rather than, say, treating ASIC or one of the other parties, and I do not know which, as the lead applicant to make a case to be met by opposite parties and a reply. Firstly, Mr Hayes, as to practicality, is it possible? Secondly, are the premises that I have mentioned suitable premises?
MR HAYES: Yes, to both of those from our point of view. We have largely done the work to prepare the outline. The other matters will be done. It does make sense to deal with them both separately as well as together and so we say, yes, to both those questions.
HIS HONOUR: Yes. There would, of course, be a single joint application book. We are not going to get three versions of every judgment and three versions of every order, thank you.
MR HAYES: They do not get better by multiple reading.
HIS HONOUR: No, or worse. Well now, Mr Strong, you have heard what I have said to Mr Hayes. I do not ask you to make any comment on the question of leaving questions of validity over to abide the outcome of other litigation but if there was something you wanted to put forward at once as some insuperable objection, by all means do, but do not feel obliged to.
MR STRONG: No, your Honour, no insuperable objections have occurred to me. It seemed to me that there was only one area, really, where there might be some wasted time involved and that would be that if time was taken in arguing out Edensor's interpretation point about the State jurisdiction legislation, that is whether this particular order was an ineffective judgment, and it was later held that the State legislation was invalid, then it would have been wasted, but that may not be a serious problem.
HIS HONOUR: Yes. Now, the practicality of the timetable that I have been speaking of.
MR STRONG: Your Honour, our statement of argument is well advanced also and we will have no difficulty in filing that by the 31st and the remainder of the timetable causes us no difficulty that I can foresee, your Honour.
HIS HONOUR: And do you see it desirable to run them as three separate but related applications with each applicant putting on his or its summary of argument separately?
MR STRONG: Yes, save as to one thing. The Normandy application is, as far as I have been able to tell, almost identical in terms of the matters raised as the Edensor application. So, those two are really one, in a way, but there are at least two separate applications. There is ours and - - -
HIS HONOUR: I would have thought those for whom you appeared simply assumed that they would be working in concert, anyway, Mr Strong, but perhaps that is an uncharitable view for someone.
MR STRONG: We have certainly said they were in the past, your Honour.
HIS HONOUR: Yes.
MR STRONG: So, apart from that, your Honour, in my submission, it is appropriate to deal with them as at least two separate applications.
HIS HONOUR: Yes, and Tuesday, 18 April, pm, in Sydney, if it can be done, is that possible?
MR STRONG: Yes, your Honour.
HIS HONOUR: Well, Mr Young, what do you have to say on these matters of which we have been speaking?
MR YOUNG: We are content with the directions that have been foreshadowed, your Honour. It is correct that our application will cover much of the same ground as Edensor's and, to that extent, our burden will be lightened because we would propose to adopt, where possible, arguments advanced by Edensor. They will not be identical, your Honour, but they will be largely overlapping.
HIS HONOUR: Yes. Well, self-evidently, of course, if you can reduce the amount of paper, well and good, and if you cannot, you cannot.
MR YOUNG: Yes.
HIS HONOUR: Yes. Now, on the hearing of the application for leave, how long is it going to take? Is every applicant going to say "I must have 20 minutes plus 20 minutes to answer"? Realistically, how long are we going to have to have available to a Court to deal with these three applications?
MR HAYES: With the preparation the High Court does in properly prepared submissions, I would be very confident we could do it comfortably in the afternoon. Mr Young and I could - - -
HIS HONOUR: If you are put in on that afternoon you will not be the only application. There are likely to be three or four other freestanding applications. So, if you are going to get into this list, you are going to be tagged on to a half-day list, or there is a possibility you will be tagged on to a half-day list.
MR HAYES: We will take the time available, looking at the red and green lights and hoping for amber. Mr Young and I will surely - we will not have to have 20 minutes each; we will have 20 minutes between us, one would think, and reply is a matter of a small number of minutes. So, I would think two lots of 20 minutes for the two applications and reply at the most, your Honour.
HIS HONOUR: Again, it will be a matter for decision by the presiding Justice, but it would seem to me that your chances of being expedited may be affected according to whether I can inform the Chief Justice that present indications are that some abbreviation of time might be achieved.
MR HAYES: We would look to any time that was available to put our arguments because we want to have them heard quickly, and we will have -our submissions are capable of being reduced really very close to 100 per cent to writing but obviously the Court will have questions.
HIS HONOUR: Yes. What I have in mind is that probably by really not much later than 11, 12, 13 April, you may well find a call from the Registry asking you whether you have agreed upon an allocation of times for disposition of the leave application.
MR HAYES: Yes, your Honour.
HIS HONOUR: If you can agree upon it, and if it could be less than the full amount that would be allocated to three separate applications, that may be an important consideration affecting whether you get a date on Tuesday, 18. Again, it is something I simply invite attention to and leave it to counsel to sort through as best they feel able.
MR HAYES: Thank you, your Honour.
HIS HONOUR: Well now, old habits die hard, Mr Hayes. I have prepared a set of minutes of order that might have come in handy, which will be handed to you. The only wrong thing about this application is it is not Friday morning. Then I would know that all my yesterdays really had come back to me. You will see there simply an order for expedition. You will see, since this order will have to be made in each of the three separate matters, I have not given the other two numbers in paragraph 2 which will change according to the matter in which the order is made. 3 then gives the timetable of which I have spoken. To that we would need to add 4, what, costs of today's application be costs in the application for special leave?
MR HAYES: Yes, your Honour.
HIS HONOUR: So that they will fall with the fate of the application for special leave. And I would need to certify for counsel. Subject to those two amendments, do you have anything you would want to say about those forms of order, Mr Haynes?
MR HAYES: No, your Honour.
HIS HONOUR: Mr Strong?
MR STRONG: No, your Honour.
HIS HONOUR: Mr Young?
MR YOUNG: No, your Honour.
HIS HONOUR: Very well. Then there will be orders as follows:
1. Application for special leave be expedited.
2. A joint application book be prepared for use on the hearing of this application and the applications numbered as the case may require, M20 of 2000, M23 of 2000 or M24 of 2000.
3. In lieu of the times fixed by the Rules of Court for taking the following steps, the following times are fixed:
(a) each applicant file and serve on or before 4 pm 31 March 2000 its summary of argument;
(b) each respondent file and serve on or before 4 pm on 4 April 2000 its summary of argument;
(c) each applicant file and serve on or before 4 pm 5 April 2000 its proposed index of documents to be included in the joint application book;
(d) each applicant file and serve on or before 4 pm 6 April 2000 any summary of argument in reply to the argument of the respondent;
(e) the requisite number of copies of the joint application book be filed and served on or before 4 pm 11 April 2000.
4. The costs of today's application be costs in the application for special leave.
5. Certify that this was a matter proper for the attendance of counsel.
As I say, if the parties could stay in close contact with the Registry, that would be of assistance and we will see what can be done.
MR HAYES: I am sorry, your Honour, there is the little matter of the $28.5 million.
HIS HONOUR: Yes. What is it you wish me to do about that today, Mr Hayes?
MR HAYES: Give it back to us, your Honour.
HIS HONOUR: Yes, and why should I do that or embark on that, pending the application for leave, Mr Hayes?
MR HAYES: If that could stand over to immediately after the application for leave, your Honour?
HIS HONOUR: Yes, there will be a further minute, minute 6 - - -
MR HAYES: When I did not see in the minutes, your Honour, I thought I would not be very long on it.
HIS HONOUR: True. In lieu of current minute 5, there will be minute:
5. Otherwise adjourn Edensor Nominees Pty Ltd application by summons of 28 March to a date to be fixed.
MR HAYES: Thank you, your Honour. Reserving the costs?
HIS HONOUR: Yes, the costs of that summons are otherwise reserved. There will, in that respect therefore, be some variance in the orders made in M23 compared with the orders that will be made in the other applications.
AT 3.40 PM THE MATTER WAS CONCLUDED
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