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High Court of Australia Transcripts |
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
Office of the Registry
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 M24 of 2000
B e t w e e n -
YANDAL GOLD PTY LTD
First Applicant
YANDAL GOLD HOLDINGS PTY LTD
Second Applicant
NORMANDY MINING LIMITED
Third Applicant
NORMANDY MINING FINANCE LIMITED
Fourth Applicant
NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD
Fifth Applicant
NORMANDY MINING HOLDINGS PTY LTD
Sixth Applicant
and
AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION
First Respondent
EDENSOR NOMINEES PTY LTD
Second Respondent
Applications for special leave to appeal
GAUDRON J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 18 APRIL 2000, AT 2.00 PM
Copyright in the High Court of Australia
MR P.R. HAYES, QC: May it please your Honours, I appear with MR I.D. MARTINDALE, for Edensor Nominees Pty Ltd, the applicant in No M23, the first respondent in No M20, and the second respondent in No M24. (instructed by Clayton Utz)
MR N.J. YOUNG, QC: May it please the Court, I appear with MR M.C. GARNER, for the second to seventh respondents in M20 and M23, and for the applicants in M24. (instructed by Freehill Hollingdale & Page)
GAUDRON J: Gentlemen, I take it these matters can be heard together?
MR JACKSON: Yes, your Honour, as far as we are concerned.
GAUDRON J: Now, we thought it would be fair if we just gave you 20 minutes each. Nothing seems to be truly opposed. Is that correct?
MR JACKSON: Your Honour, I am content with 20 minutes.
MR HAYES: We are, yes.
MR YOUNG: Yes.
GAUDRON J: Thank you, Mr Jackson.
MR JACKSON: Your Honours, may I deal first with our application, then with our attitude to the other applications. Our application, it is submitted, gives rise to important questions concerning the jurisdiction of the Federal Court. If I could just say initially, there are no complicating factual issues and the questions are squarely raised. May I proceed to indicate their nature?
Your Honours, the first thing is that the primary judge was hearing applications by the Commission in relation to a proposed takeover of Great Central Mines Ltd. Your Honours will see the basic facts in the application book in our summary at page 131, paragraphs 5 to 11. Your Honours, I need, if I may, just to go a little to the orders that were made before I come to the - - -
GAUDRON J: Yes, exactly, because what concerns me is that you really do not have a judgment, order or decree for the purposes of the Constitution.
MR JACKSON: Well, your Honour, may I perhaps come to that?
GAUDRON J: Yes.
MR JACKSON: Now, what your Honours will see is that the primary judge made an order which appears at page 74 which involved a number of declarations and included an order No 7 which is at page 77 for the payment of a sum of money to the Commission for payment out to shareholders in the takeover target company.
Now, your Honours, those were the orders that were made by the primary judge and your Honours will see from page 79 that the orders were "to be entered forthwith." Now, your Honours, there was then an appeal to the Full Court and the order - - -
GAUDRON J: And those orders were taken out?
MR JACKSON: Yes, your Honour. That is, I think, the order - that is the order to which I was referring, the taken out order, at page 74.
GAUDRON J: That is the order?
MR JACKSON: Yes, your Honour. The Full Court's order is at page 115. You will see the court's seal on it. If I could go then to the Full Court's orders. What they amount to, your Honours, is a declaration that order 7, which is the one for the payment of money, was invalid for want of jurisdiction. Your Honour, that being a determination that the court had no jurisdiction to make order 7. Secondly, your Honours, in relation to paragraph 2 of that order at page 115, what your Honours will see is that, again, it was declared that the court "had no jurisdiction to hear.....the proceedings" so far as the Corporations Law was concerned.
Could I just pause to say, your Honours, that the orders that were made by the primary judge were not just orders under the Corporations Law.
GAUDRON J: But what rights do those Full Court orders effect or bring into existence? They just seem to be bare declarations divorced from the rights of parties. I could well have understood if the court had said, "This Full Court has no jurisdiction; appeal dismissed as incompetent." I could understand if they had said, "Order 7 is set aside.", but they do not do any of that. We have a couple of bare declarations which do not, on their face, seem to affect the rights of anybody and the appeal is neither dismissed nor upheld. It is stood over.
MR JACKSON: Your Honour, it may perhaps be a matter of the manner of expression but may I say in relation to - if I could invite your Honours to hold page 115, as it were, and also the terms of page 77, what your Honours will see is that in relation to order 7, the declaration at page - I am sorry, the order at page 77 was an order that there be paid a particular sum of money. Now, your Honours, what is held then on an appeal is that that order was made without jurisdiction.
HAYNE J: Yes, but do they set it aside? What do they do?
MR JACKSON: Your Honour, that must mean, with respect, that it is set aside and no doubt the court could have gone on further and said something more about it and made some further order but, in our submission, it is something which is a judgment on the issue.
GAUDRON J: Well, the general notion for section 73, is it not, is that an order must determine rights or liabilities.
MR JACKSON: Well, it does, your Honour. It declares, as between the parties, that we had no right to obtain an order - - -
GAUDRON J: But you have it. It is not set aside.
MR JACKSON: But, your Honour, it has "no longer enforceable". It is an order made without jurisdiction.
HAYNE J: That may lead on to what may be a need to agitate the issues not only by any question of leave but to agitate the same issues in the original jurisdiction by prerogative remedy and that the issues which may, as I understand it, you would say, lie behind what the Full Court has done might perhaps be raised and raised completely with sufficient jurisdictional foundation by means of prerogative relief.
MR JACKSON: Your Honour, that is possible but could I just submit in relation to section 73 two things. The first is that bearing in mind the ambit of the concept of "judgments, decrees, orders, and sentences" given by the Court, for example, in Melifont and O'Toole v Charles David, that the Court would not take any narrow view of that concept, and the second thing, your Honours - I do not mean to be offensive in any way in saying it - is that if the point that your Honours raise is one of significance, that question is one that may be appropriate for the Full Court to determine as a special leave question itself.
GAUDRON J: Quite.
MR JACKSON: In which case - - -
GAUDRON J: But, in a sense, the orders that are made, I suppose, throw up the problems in this case. There seems to be a rationale for the orders that were made.
MR JACKSON: Well, your Honour, there is a reasoning that we seek to challenge.
GAUDRON J: Yes.
MR JACKSON: But, your Honour, the position at the moment is that there has been a declaration that the order that was made is one that is invalid for want of jurisdiction. Even if, your Honour, that be regarded as being in some way a determination that itself has an interlocutory aspect to it, that does not mean that there cannot be a grant of special leave in relation to it.
HAYNE J: It is not so much that it is interlocutory so much as is there any determination of right of the parties flowing from the orders made.
MR JACKSON: Well, there is, your Honour, and that is that that - and I do not know that I can advance it beyond saying that the result of the determination or the result of the declaration of the Full Court is that that order that was made by the primary judge is one which was not validly made and that is something which binds all the persons who are parties to it.
GAUDRON J: But how and with what consequence? The order stands. I just do not understand what the Full Court thought it was doing, I suppose.
HAYNE J: Please do explain to us, Mr Jackson.
MR JACKSON: Your Honour, what the Full Court did was not of our making, I hasten to say. But, your Honours, can I just say in relation to it that you will see that the appeal, the order that has been made is that the appeal be stood over. The remainder of the appeal is stood over. And those parts of the appeal have been determined finally, in our submission. Now, your Honours, that is the submission I would make in relation to that.
In effect, if one takes the view that your Honours have raised with me, what it does do is reflect an underlying determination, perhaps, by the Full Court which refuses to hear and determine the appeal.
GAUDRON J: Exactly. I was thinking that at least from your point of view all the issues you wish to agitate would seemingly be encompassed in the ordinary remedies that you would get by way of mandamus and certiorari.
MR JACKSON: Yes. Your Honour does perhaps leave open questions of any discretionary basis that might - none occurs at the moment but there is always a possibility that matters of that kind would be raised.
GAUDRON J: From your point of view, the appeal has not been determined. You would say it should have been determined by an order saying "Appeal dismissed."?
MR JACKSON: Yes, your Honour. It has not been determined in the way in which we sought.
GAUDRON J: Well, it has not been determined though, has it?
MR JACKSON: I disagree with your Honour, with respect, on that but I have made the submissions.
GAUDRON J: Some issues may have been determined but the appeal itself has not.
MR JACKSON: Well, it has not been. Not all the appeal has been determined, your Honour, that is so, yes. But a discrete part of it has been and, your Honour, in our submission, the concept in section 73 is wide.
Your Honours, I was proposing, if I may, to go on to deal with the substance of the matter and may I endeavour to do so as briefly as I can? Your Honours, the Corporations Law is relevantly, of course, a law of Victoria, not a law of the Commonwealth. The way in which the Full Court arrived at the conclusion at which it did was, by its view, on a short point, namely, the effect of the definition of the term "Court" in section 58AA of the Corporations Law.
May I take your Honours to the relevant parts of the Full Court's reasons. You will see those at page 99, paragraph 15, where the principal submission is set out. Your Honours, that view is adopted in the passages which go through - if I could go perhaps to page 101 - paragraphs 22 through to 24. Essentially, what was said was that the definition of "Court" in section 58AA - could I take your Honours to that provision - when it referred to the Federal Court "exercising the jurisdiction of this jurisdiction" was referring only to what was described as a kind of State jurisdiction. Your Honours, that was so even though it was accepted that there was but one matter in the constitutional sense, as your Honours will see in paragraph 21 at page 101.
Could I indicate the bases on which we seek to attack that conclusion. First, if one leaves aside accrued jurisdiction altogether, the applicant is a body which is established by the Australian Securities and Investment Commission Act 1989 . Could I refer your Honours to sections 7 and 8 of that Act. It is, it is submitted, for relevant purposes the Commonwealth, and could I refer your Honours to, for example, section 12(1), which makes it subject to ministerial direction, and to the methods of appointment, for example, in section 9(2).
Amongst other powers and functions it has, as section 11(7) of that Act says, the:
functions and powers that are expressed to be conferred on it by a national scheme law of another jurisdiction.
Which would include Victoria. So, that is the Commonwealth provision which gives it powers.
Your Honours, could I just note in passing that assuming the correctness of the first thing I said that it is the Commonwealth, any matters in which it was a party would necessarily be federal, not State jurisdiction, section 75(iii) of the Constitution. That, your Honours, is a matter to be borne in mind when looking at the meaning of section 58AA of the Corporations Law. Your Honours, I will come to it in just a moment, if I may.
Your Honours, one goes then to the Corporations Law and one sees first section 613(1) which defines what are called "remedial orders" and, your Honours, the definition has relevance for present purposes because of section 737(1), and may I take your Honours to that. Section 737(1) allows:
Where a person has acquired shares in a company.....the Court, on the application of -
amongst other people -
the Commission -
which is the present applicant -
to make such order or orders as it thinks just, including.....
(a) a remedial order -
and then your Honours will see in section 739 and, in particular subsections (1), (3)(c) and (3)(d), that various powers are given to the Court.
Could I pause to say, your Honours, that section 11(7) of the Australian Securities and Investment Commission Act, to which I referred before, is the Commonwealth authorisation for the Commission to take the action referred to in section 737. From there - and your Honours will see the word "Court" in section 737 - one goes to section 58AA, the provision critical in the Full Court, and may I take your Honours to its terms now. It is at page 2,294 of the pamphlet volume.
The central feature in it, your Honours, is the definition of "Court" and may I say three things about it. First, the distinction which is drawn by the provision, in our submission, is, on the one hand between all courts at whatever level and, on the other hand, those referred to in the definition of "Court", that is identified and probably superior courts.
Secondly, the reference to the term "jurisdiction of this jurisdiction" is likely to be geographical, as it were, rather than constitutional. It distinguishes between, for example, the concepts of the Corporations Law of Victoria and that of New South Wales or Queensland. And the third thing, your Honours, is this, that in so far as relates to the position of the Commission and, for example, section 737, section 58AA could never have had the pure State operation attributed to it in the Full Court's reasons. It could not have had that, your Honours, because the position was that if ASIC be the Commonwealth, the jurisdiction that was being spoken of would be one that, whilst having a State element, was federal, and the Wakim analogy relied upon by the Full Court is, with respect, imperfect.
GAUDRON J: What is your reference - I do not understand it - to ASIC being an officer of the Commonwealth - being the Commonwealth?
MR JACKSON: Being the Commonwealth, your Honour.
GAUDRON J: Is that to suggest that there is an associated matter as well as accrued jurisdiction?
MR JACKSON: No, your Honour. I have not really come to that aspect of it yet, with respect. What I was going to say about it was that leaving aside accrued and associated jurisdictional altogether, this was a case where the Federal Court had jurisdiction in the ordinary way, and what I was going to say, your Honours, was that the basis for its having jurisdiction apart from and perhaps in addition to the provisions to which I have so far referred, is that section 39B(1A)(a) of the Judiciary Act gives the Federal Court jurisdiction in matters in which the Commonwealth is seeking an injunction or a declaration, and that is what was happening here. Your Honours, declarations and injunctions in fact were made. Your Honours have seen the orders were made. In those proceedings, the Federal Court had power under sections 22 and 23 of the Federal Court of Australia Act to dispose of the case by the making of the most appropriate orders.
Now, your Honours, that is the first issue. What we would submit is these were proceedings in which the Commonwealth by ASIC was invoking the jurisdiction of the Federal Court under section 39B(1A)(a) and they were proceedings that were, of their nature, federal jurisdiction.
The second aspect, your Honours, is accrued jurisdiction. Your Honours, there is no doubt that the Federal Court in any event was exercising federal jurisdiction which had been specifically conferred on it.
GAUDRON J: That first argument was put to the Full Court, was it?
MR JACKSON: Yes, your Honour. Your Honours will see the references in the Full Court's reasons.
Now, your Honours, the second thing is the Federal Court in any event was exercising federal jurisdiction specifically conferred on it in relation to either the ASIC Act, as it were, or the Trade Practices Act. I say, either - your Honours, I see the time, may I have - - -
GAUDRON J: Yes, please do.
MR JACKSON: Your Honour, I just need a few minutes, if I may. Under section 12GJ(4) of the ASIC Act, the Federal Court has an exclusive jurisdiction. The exclusive jurisdiction, your Honours, is in relation to matters arising under Division 2 of Part 2 of that Act. Your Honours, the matters in relation to which the Federal Court has exclusive jurisdiction include the things that are referred to in section 12GD(1) - your Honours, I am sorry to make these provisions sound so difficult - and 12GD(1) is a power to grant injunctions on the application of the Commission and other - "Injunctions", I am sorry. Then section 12DA(1) - - -
GAUDRON J: I am just looking: 12DA, that just replicates, of course, does it, the Trade Practices Act.
MR JACKSON: Yes, your Honour, that was what I was about to say. There are two enactments now, relevantly. One is the Trade Practices Act, section 52 and relates provisions.
GAUDRON J: Yes, and that section, of course, does not depend on any State legislation.
MR JACKSON: No, not at all, your Honour. The position, your Honour, is simply this. There are two pieces of legislation: the Trade Practices Act and this part of the ASIC Act, if I can call it that. Now, the two are complementary, and things that fall within one do not fall within the other. It comes about because of two provisions of the Trade Practices Act, 51AAB and 51AF. The two pieces of legislation were relied on in the alternative in these proceedings and some of the orders that were made were made under them. Both the primary judge and the Full Court held there was but one matter. That is at paragraph 21 of the Full Court's reasons, page 101. But the Full Court yet held that the accrued jurisdiction did not encompass sections 737 and 739 because of the definition of "Court" in section 58AA.
Your Honours, that, with respect, seems to deny part of the nature of accrued jurisdiction. Your Honours, in that regard, could I refer to a passage in Fencott v Muller 152 CLR 570 at the bottom of page 606. I have some copies for the Court. Your Honours will see, in particular:
The proposition that a matter may include a cause of action arising under a non-federal law.....is the ratio decidendi of Philip Morris. It follows that the ambit of a matter arising under a federal law may extend beyond claims which arise under that law or which are to be determined by reference to that law alone.
Then your Honours will see, and I will not read it out, the paragraph at the top of the next page which contains a reference to Felton v Mulligan and the passage that is referred to in footnote (11) at page 399 is extracted from Justice Walsh in Felton v Mulligan, and we put the extract, your Honours, in our written submissions at the bottom of page 134. What your Honours will see - it is the bottom of page 134 and the top of page 135 - what Justice Walsh had said in relation to determining matters removed, but the passage, at least arguably, was adopted in Fencott v Muller. Your Honours, in our submission, the case is one where that jurisdiction was attracted. Your Honours, there are other arguable basis for jurisdiction. I will not go beyond those for present purposes.
May I just say, in relation to the other sides' applications, that the issue raised by us in our special leave questions are also raised by the other two sides - two applicants - in questions 1 and 2 by Edensor and by Yandal Gold in the part of its question 1 which deals with order 7. That is the payment of the money. The balance of question 1 which is raised in the Yandal Gold application - that is at page 193, if I could take your Honours to that - deals with the orders 4, 5, 6, 8 and 9 made by Justice Merkel. Now, your Honours, those orders were made in part, at least in our submission in part, not necessarily on the basis at all of the Corporations Law but on the basis of the provisions of either the ASIC Act or the Trade Practices Act, and your Honours will see those set out in the primary judge's orders at pages 74 and following. There is not, in our submission - they have not been dealt with by the Full Court yet. There is no need to consider them at this stage of the proceedings because they have not yet been determined by the Full Court. That is, with respect, where - - -
HAYNE J: There is where we come a loop,
GAUDRON J: Yes, we seem to have come a loop. That is what concerns me, not only about their applications but about yours.
MR JACKSON: Your Honour, it is a cake with a number of slices.
HAYNE J: And you are cutting it.
MR JACKSON: We have the top half, I think, your Honour. The greedy boy at morning tea. Your Honours, they do not just depend on the Corporations Law.
GAUDRON J: But, Mr Jackson, surely, this is a case of in for a penny, in for a pound, as it were, in the sense that if we were to take on what you seek to raise and take that on only, we would be slicing up the cake in a way that may deprive people of a proper hearing of the matter.
MR JACKSON: Well, your Honour, can I seek to indicate why that is not so and why they will either get no part of the cake or the part to which they are fully entitled? If our application were granted and the appeal succeeded, the additional questions would be academic. If we failed, then the Full Court yet has to determine the appeal so far as it has jurisdiction under the ASIC Act or the Trade Practices Act. If any relief is appropriate, it can be decided at that stage.
HAYNE J: Sorry, if you succeeded in any event, what do you say would be the proper order in this Court? To remit it to the Full Court to deal with further in any event?
MR JACKSON: Your Honour, if we succeed, there would be some issues as far as that.
HAYNE J: We would have to send it back, would we not, to the Full Court?
MR JACKSON: Yes.
GAUDRON J: Because of the order.
MR JACKSON: Yes.
GAUDRON J: At best, we could set aside the declarations.
MR JACKSON: Yes, but then it goes back to the Full Court.
GAUDRON J: And it leaves an appeal - - -
HAYNE J: - - - partly dealt with.
MR JACKSON: Well, the Full Court has not heard the rest of it, your Honour, and they have to deal with it.
GAUDRON J: In a sense, it seems to me, they have. They have dealt with a bit more than you have dealt with, have they not, in their decisions?
MR JACKSON: No, what they have dealt with, your Honour, are two things: one is order 7; then they have said in relation to the other orders that they refer to that in so far as they are based on the Corporations Law they are made without jurisdiction. But there is more to it than that.
GAUDRON J: Then, if that is all they have said, Mr Jackson, they are not authorised by the Corporations Law, why would we be hearing you about the ASIC Act and the Trade Practices Act? I can understand - - -
MR JACKSON: Well, you would only be hearing from me about those, your Honour, to show that they were wrong in saying they had no jurisdiction in the first place.
GAUDRON J: And can I ask you this. Again - this is not a criticism of you but I am really finding it difficult to understand what was done in this case. Order 7 is invalid for want of any jurisdiction. It must be. It could only have been made. So, purportedly, they seem to have dealt with all these other matters.
MR JACKSON: No, they have dealt with order 7, your Honour. I am sorry, what I am trying to say in relation to it, your Honours, is this, that your Honour must be right, of course, in saying that in so far as order 7 is concerned, they have said there is no jurisdiction. We say, for at least the two reasons I have submitted earlier, that is wrong. Now, if that is correct, then all the bases on which they said the court had no jurisdiction would go. Your Honour, there would also go, in our submission, the next order they made which relates to the other orders that were made or some of the other orders, so far as they turned on the Corporations Law because that is all that the Full Court did in relation to those matters. Your Honours will see that at page 115, the bottom of the page, and the top of page 116, "under the Corporations Law".
GAUDRON J: Yes, I see it, but I cannot relate the two orders.
MR JACKSON: Well, your Honour, there are difficulties. That is one of the reasons why, we would submit, that it is an appropriate case for special leave. The course taken is one that, in our submission, should not have been taken. If one leaves aside the importance of the case, it is a case where the results of the Full Court involve, really, what sometimes the Court calls procedural irregularities, and that is an appropriate matter.
Your Honours, the last thing I wanted to say is this: questions 3 and 4 on the Edensor application and 2, 3 and 4 by Yandal Gold raise the question of the Federal Courts (State Jurisdiction) Act. We would submit the case is not an appropriate vehicle for that because - - -
GAUDRON J: Questions 2, 3 and 4?
MR JACKSON: It is 2, 3 and 4, your Honours.
GAUDRON J: In Yandal?
MR JACKSON: Questions 2, 3 and 4 in Yandal; 3 and 4 in Edensor. Yandal is at page 193. What we wanted to say about that, your Honours, is the constitutional validity of those Acts is going to be considered by the Court in the near future.
GAUDRON J: Have we got to that point in these cases, yet?
MR JACKSON: No, your Honour, not really, in our submission.
GAUDRON J: Although one of the judgments - the second judgment does, in fact, deal with - - -
MR JACKSON: Your Honour, I appreciate that. What I was going to say about it though was that the judgment deals with it but the discussion concerning order 7 of the primary judge's reasons being - I am sorry. The judgment of the Full Court concerning order 7 of the primary judge's orders being, as they described, an ineffective judgment in terms of the State Jurisdiction Act really is not reflected in any order against which there could be an appeal.
GAUDRON J: That is why I thought - you see, how I had understood this, and please correct me if I am wrong. I had understood the Full Court to be making the want of jurisdiction order 7 and stopping short of setting aside the order because it was of the view that it was an order which could be cured by the State legislation. That is how I read it or that is how I rationalised what had happened.
MR JACKSON: Well, your Honour, that is the reasoning underlying what the court did.
GAUDRON J: And when you look at it like that I come back to what I put to you at the first time, I am not too sure what the substance of any appeal would be.
MR JACKSON: Your Honour, the substance - I think I am perhaps saying what I said before, and I appreciate I have taken rather more time than I expected.
GAUDRON J: No. Well, we have led you astray, Mr Jackson.
MR JACKSON: But all I was going to say, your Honours, was that in relation to it, in our submission, what the Full Court did was to declare, in effect, there was no jurisdiction and that is something that, in our submission, falls within section - - -
GAUDRON J: And did they seem to think that they had no jurisdiction to hear the appeal? Was that underlying what they did?
HAYNE J: And if so, how does that lead to them standing over the appeal?
MR JACKSON: Your Honour, I do not think it is right to say that the Full Court took the view they had no jurisdiction to deal with the appeal because one would think that one of the things that the Full Court had jurisdiction to do was to say there was no jurisdiction below. But at page 113, at the bottom of the page, your Honours will see - - -
GAUDRON J: You see, if it were an ineffective judgment, then presumably they would say, "Well, what that means is the appeal before us is incompetent and it should have been in the Supreme Court."
MR JACKSON: Yes. What has been done, as your Honours will see from the orders made by the Full Court, is really to make the declarations in paragraphs 1 and 2 and to stand the appeal over pending any application to this Court and the appeal, really, has been seemingly adjourned for that. Order 7, of course, on the Full Court's view, has gone.
GAUDRON J: No, order 7 still stands.
MR JACKSON: I am sorry, made without jurisdiction I meant to convey. Your Honour, those are our submissions.
GAUDRON J: Yes, thank you, Mr Jackson. Yes, Mr Hayes.
MR HAYES: Your Honours, we would start off by submitting in answer to the Court's difficulty with what it is that would be the subject of an application for special leave, that the Full Federal Court has finally determined certain matters and finally determined not to determine other matters. What the Full Court has done is to decide that the Federal Court had no power, pursuant to section 58AA, to grant relief under sections 737 and 739 of the Corporations Law. That has been finally determined. That causes grievance to my learned friends for ASIC. Nothing that remains to be determined by whichever appeal court is lucky enough to get to decide the appeal is going to affect that. That has been decided.
Similarly, the court deliberately decided not to accede to our - that is Edensor's submission - that in the light of that finding they should set aside the $28.5 million order and remit the money. What they said was that, in the second of the two Full Court judgments, they declined to make the order that we sought but instead made the declaration. Now, the declaration they made was because they formed a view that this was an ineffective judgment within the meaning of the State Jurisdiction of Courts Act.
GAUDRON J: Well, that is what I thought but, yet, you have no declaration to that effect.
MR HAYES: No.
GAUDRON J: And that is the very thing that you want to challenge, is it not?
MR HAYES: It is ultimately what we want to challenge but we can get there by challenging the declaration they did make.
GAUDRON J: Which is - - -?
MR HAYES: A declaration that the court had no jurisdiction to make the order.
HAYNE J: Can I just follow the argument out? You say you get there because what, that leaves the State statute to operate according to its terms? Is that what you mean when you say that you get to the desired result?
MR HAYES: Yes. The reason the Full Court made the declaration they did was consistent with their reasoning that, "Yes, we were right. The Federal Court didn't have jurisdiction to make the $28.5 million order" - it was called - "But, no, we were wrong in saying that was only relevantly a matter of power of the Federal Court and was not a State matter but rather it was a matter of want of jurisdiction because, if it was not for the invalidity of the cross-vesting of the Corporations Law then the Federal Court would be a court under section 58AA that had the power to make the order" and, therefore, they declared that the Federal Court did not have jurisdiction.
Now, our grievance is centred on that. What we asked them to do was to make an order allowing the appeal in relation to the 28.5 million, setting it aside and remitting the money.
GAUDRON J: Yes. But, now, the problems I raised with Mr Jackson seem to me to be more acute in your case. You support Mr Jackson's case with respect to order 1, do you not? You want to say they had jurisdiction to make it.
MR HAYES: We have some difficulty with Mr Jackson's wording of all his four questions which, if we are lucky enough to get the special leave, I will come to. But we support the thrust.
GAUDRON J: Yes. Well, he at least has a few planks there from which he can construct into a platform of sorts. How good it is, may nor may not have to be ascertained at some stage.
MR HAYES: We will be submitting that those planks simply lead into the wild blue yonder.
GAUDRON J: Well, they may, but would not the issues you raise, more particularly the issues you raise, more appropriately be raised by an application for mandamus and certiorari, because your certiorari will deal with any errors on the face of the record which will include your judgments? Whereas, your planks are certainly no better than Mr Jackson's.
MR HAYES: Your Honour, either or both sides could apply for prerogative relief and we, indeed - - -
HAYNE J: And that would cut away some of the difficulty, if there be difficulty, about the way in which the Full Court has chosen to frame its orders?
MR HAYES: It would cut away some but not all, yes. And we have given anxious consideration to that, I can say. The difficulty we have is that under the regime that the Full Court laid down ASIC was obliged to seek special leave because they had announced they were going to do so, and to expedite it, and so the matter appeared inexorably coming to the High Court.
HAYNE J: But, again, rather than perhaps losing sight of the points which lie behind these questions, if the questions can be raised by prerogative relief, perhaps at the same time as any question raised by the leave or, if leave were granted, any appeal, attention can then focus on what might be seen to be the main game.
MR HAYES: Yes, and no, for these reasons - - -
HAYNE J: That is a safe answer, Mr Hayes.
MR HAYES: With a greater leaning towards no, your Honour. There would be no point in us seeking an order to compel the Full Court to deal with the question of our right to the immediate repayment of the $28.5 million or the State Jurisdiction of Courts Act application because it has purported to already do so. What it has done by a route that was quite different to what we asked was to say, "Yes, you are right, there's no jurisdiction" or, "There's no power", rather, "under 58AA. But, no, you are wrong in saying that the problem is one of power only and not one of want of jurisdiction." They have gone ahead and decided that, leaving us in the position whereby we need to get set aside the declaration that they have made because the declaration they have made - - -
GAUDRON J: Which one?
MR HAYES: I am just looking for the page in the application book where it is.
HAYNE J: Page 115.
MR HAYES: Thank you. It is the declaration No 2. Starting off, sorry, declaration No 1, the order "is invalid for want of jurisdiction" is, in our respectful submission, quite wrong and plainly wrong.
HAYNE J: That either decides rights or it does not decide rights. If it decides rights then appeal is your proper remedy. If it does not decide rights, that is if it is not conclusive of the point, then maybe prerogative remedy is the appropriate relief. Whichever the piece of paper, if the issue is important, can we get to the issue?
MR HAYES: I am endeavouring to.
HAYNE J: With the interruptions from me.
MR HAYES: Not at all. That finally decides the point that the problem is one of jurisdiction and not one of power. That is finally decided by that order.
GAUDRON J: You say there was jurisdiction but no power?
MR HAYES: That is right. We thought we had the Full Court to that.....conclusion in the first judgment.
GAUDRON J: And then if I can just understand it, because I have come into this much more recently than you gentlemen have, and it is by no means easy, I am sorry. You say there was jurisdiction and no power, therefore it is not an ineffective order and there is nothing that the Supreme Court can do about it. You should have allowed the appeal and made consequential orders?
MR HAYES: Yes, precisely.
GAUDRON J: As simple as that, yes.
MR HAYES: Yes. And we say that for this reason, putting it very, very succinctly - - -
GAUDRON J: But they did not dismiss your appeal.
MR HAYES: No. In fact, in their judgment they said "appeal allowed, come back for orders".
GAUDRON J: Yes. So, you have got one plank, while Mr Jackson has two, in a sense?
MR HAYES: Yes. He is aggrieved by the finding that there was not power and we say that the construction given by the court to section 58AA was plainly right, that is what it says; it is what Justice Kirby has found; it is plainly right, and it does not deliberately exclude federal or accrued jurisdiction.
We say the problem is one of power. It is a common dilemma where jurisdiction and power are not necessarily exactly the same and that what the court has done that does wound us permanently is that it has found that the problem here is want of jurisdiction, not want of power, and that is a fundamental issue, and that finally determines rights and it raises matters of very considerable public importance.
GAUDRON J: It does determine them but without orders, as it were. Well, anyway, it does not matter.
MR HAYES: Yes. It does so by a combination of what they did order and what they did not order. They declined our invitation to actually order "appeal allowed, order set aside". Instead, they gave the declaration. The reason they did that, as explained in their reasons, is that they think the problem lies in a want of jurisdiction; the want of jurisdiction being if it had not been for the invalidating of the cross-vesting legislation, then the Federal Court would have jurisdiction under section 58AA and the problem would have gone away.
So, they have decided the matter finally on that point right at the heart. Why I said "Yes and no" to Justice Hayne was, that was the "no" part, but the "yes" part was that when this matter was argued, and it took three days, the court having raised this as a preliminary question heard the parties and then said it would go on and hear all matters and so all matters have been argued. Now, where a prerogative writ would come in would be to compel the court to decide matters other than what it already decided.
GAUDRON J: Well, it seems to me that the prerogative writ would come in to enable you to deal with the issues you seek to raise beyond orders 1 and 2.
MR HAYES: The prerogative writ would enable us to compel the Federal Court to decide other matters it has declined to resolve rather than to alleviate for us the problems by what it has resolved.
GAUDRON J: Yes.
MR HAYES: Of course, the $28.5 million was a very focusing part of the orders made by Justice Merkel and if the situation is there is no jurisdiction and if the situation is that the State Jurisdiction of Courts Act of Victoria does not make this a judgment of the Supreme Court of Victoria, then the result is there is no longer any impediment to the complete setting aside of those orders and the return of the moneys. There are issues of real importance there because no doubt the Federal Court has since, for a long time, been making decisions, under its accrued jurisdiction, exercising powers under specific provisions under the Corporations Law, that is a matter of ongoing, everyday public importance, and where jurisdiction insurance, as his Honour Justice Merkel so colourfully but aptly described it, where that is a daily event and all the more so, one would imagine, in the light of the declared invalidity of the cross-vesting jurisdiction.
So, we would endeavour to meet the concern that the Court raised with us about whether or not this is a suitable vehicle for special leave by saying we are all at this Bar table aggrieved by the course the Full Court took but our grievance in this regard is limited to those orders which do finally determine the matter.
GAUDRON J: No, I think that is not right, Mr Hayes. I think your grievance goes to the orders that were not made.
HAYNE J: "And give us the money back".
MR HAYES: It has the same effect, your Honour, and the judgment was not to make the order that we sought and instead to make this order. I would respectfully submit that comes to the same thing. Either way, we did not get to Go, which was the $28.5 million.
That is the matter that has obviously concerned the Court at the forefront of this. Can I very briefly deal with some other matters? The questions asked by ASIC which your Honours will find at the beginning of their application, page 130, have all got in them wording difficulties. Now, I do not mean this to be a pleading summons and, indeed, if the Court is generally inclined to grant leave, possibly there can be a further interlocutory hearing to finalise the questions.
HAYNE J: Well, would we ever get to the point of - we would never get to a point of finalising questions. If leave goes, leave goes.
MR HAYES: I understand. Well, there is a problem then, your Honour, with the questions as they are framed.
HAYNE J: But are you suggesting that there should be some limitation on leave in favour of one party? Are you making some submission of that kind?
MR HAYES: We submit that the sensible course is for all parties to be given leave on all questions and sort them out on the appeal. But there are difficulties with the wording of these questions that make the questions as framed by ASIC unsuitable for what they want to achieve.
GAUDRON J: I noticed this afternoon everybody has been going to the questions and I have kept going to the orders which always seems to me to be what you have to look at, at the end of the day. Is there anything dreadfully wrong about the orders they seek?
MR HAYES: Well, your Honour, I have tried every way of putting it I can think of and then some and what I am submitting to your Honour is it is a combination of what was not ordered and what was ordered - - -
GAUDRON J: No, no, but is there anything wrong with the orders Mr Jackson seeks in the event that an appeal were lodged?
MR HAYES: No. If he was right, the orders he seeks are the correct questions.
GAUDRON J: The way he formulates the question then is of no great importance, is it?
MR HAYES: If that is the view the Court takes, then I will not trouble you with that. And there are many matters of real substance that have to be agitated in relation to the matters he raises but now does not seem to be the appropriate forum to do it. Can I indicate briefly why there is some merit in our arguments in case the Court has some difficulty with the merits of the matters that we raise? The matters of principal concern to us are the parts of our questions that Mr Jackson does not want asked and that lies in questions 3 and 4 of our questions, to be found, relevantly - - -
GAUDRON J: Well, he says you have no plank for them, in essence, and that that matter should go back to the Full Court. There is at least some semblance of merit in that.
MR HAYES: Well, it was put nicely but it is wrong, in our submission. It is wrong because of what was and was not ordered, the broken record again. I cannot put it any better or worse than that.
GAUDRON J: Well, that is right. He says, "There being no declarations and no orders, that is just something to go back to the Full Court if I don't succeed."
MR HAYES: But the judgment explains what was not ordered, and why what was ordered was ordered, and it amounts to exactly the same thing.
GAUDRON J: But you do not appeal from reasons.
MR HAYES: You do appeal from a judgment, your Honour, and we appeal from a judgment and an order here. Well, what is the point of me saying it another time? It is as good now as it was when I said it ten points ago, or not.
Now, your Honours, leaving aside then whether this is a good vehicle, the argument put in the written submissions that our section - - -
GAUDRON J: We do not need to trouble you on vehicle.
MR HAYES: On merits?
GAUDRON J: On vehicle.
MR HAYES: On vehicle, your Honour, this is - - -
GAUDRON J: Look, at the moment, we do not think we need to hear you on that.
MR HAYES: Thank you, your Honour. I got out before the red light.
GAUDRON J: At least from my point of view, that is premised on the assumption that this is a one in, all in, or a one out, all out situation. I do not know if you want to - - -
MR HAYES: No, I think we say it is one in, all in, and if the Court wants arguments on individual points, we have been rehearsing them for days, but it does not appear to be the appropriate time to do it now. I will have to explain to Mr Ehrlich afterwards why I did not put many of the points.
Your Honours, there is the question of how quickly this should be on. In our submission, this is very urgent; it raises ongoing matters of public importance, let alone the fragmentation of this proceeding.
GAUDRON J: Mr Hayes, it would come on as soon as it could come on, I can tell you that. Everybody wants to sing us the same song these days.
MR HAYES: We have some new harmonies, your Honour.
GAUDRON J: Thank you. Mr Young, do you have anything you wish to say in addition?
MR YOUNG: Very little, your Honours. Our main concern is that all matters should be agitated before the High Court.
GAUDRON J: Well, now, would you be prepared to take steps to ensure that that would happen even if it were then - I mean, on one view it might be said, were special leave granted - it might be said, even so, that the appeal is not competent.
MR YOUNG: Yes, your Honour.
GAUDRON J: That no appeals are competent, on one view. Not the view that Mr Jackson advances. It at least looks likely that a very good argument could be maintained that some of the points - that at least so far as some of the points are concerned, your appeal would not be competent.
MR YOUNG: Our submission, your Honours, is that special leave, without qualification, should be granted to each of the parties. There is a risk that aspects of the appeals, as your Honour says, may be found to be incompetent because of matters not dealt with but there is likewise a risk, your Honour, that if the sole recourse is to prerogative remedy, that may be found to be inadequate in relation to - - -
GAUDRON J: Yes, but at least if there were applications or an application for prerogative relief in conjunction with the applications, then there would at least look to be a secure foundation for such - - -
HAYNE J: It is about as good as you could get, is it not, Mr Young?
MR YOUNG: Yes, be embrace that and we believe it is a sensible suggestion. We were going to make the same but, it is, we would say, no substitute for the grant of special leave on each of the applications because there is a real risk in the way it has been dealt with that something will fall between the two stools.
GAUDRON J: Yes. Now, Mr Young, can I just say this: given possible section 73 difficulties, it does seem to us at the moment that the preferable course would be to refer all three applications for special leave to a Full Bench of the Court to be argued as if on a full appeal but we would really think that that should be conditional upon somebody at the Bar table taking some steps to - - -
MR YOUNG: We are happy to do it, your Honour, but we, perhaps, have - - -
GAUDRON J: You are happy to give an undertaking and to do it quickly so that all matters could proceed in tandem?
MR YOUNG: I was going to add, subject to instructions, that we would be prepared to do that but we, of all the parties at the Bar table, perhaps, have the most limited interest in the issues compared to Edensor and ASIC. We, however, were the only ones below who submitted to the Full Court, when they called for submissions about orders, that the course the court should take is to proceed to hear and determine all matters rather than making piecemeal declarations intended to found some foothold in jurisdiction under the State Act. Now, we made that submission. It appears at paragraph 16 at page 113 of the application book.
The court rejected our submission and proceeded to make declarations that were crafted in such a way as to provide a foothold for the application of the State Act, and that was done in circumstances where - - -
GAUDRON J: Or to provide a foothold for an application to this Court.
MR YOUNG: Well, it has certainly done that, your Honour. But ASIC at that further hearing submitted that what the Full Court should do was to declare that Justice Merkel's judgment was an ineffective judgment for the purposes of the State Act, no doubt because they had some reservation about their power to make orders for the purposes of the State legislation. That is why, it seems to us, that the Full Court has stopped a tad short of that and simply made declarations that order 7 and other orders are invalid for want of jurisdiction.
That is the problem that we find ourselves in, your Honours, that there is a possibility even now of parallel appeals running in the State jurisdiction and in the federal jurisdiction with a rump of the Federal Court appeal undealt with and that, in our respectful submission, is a most unsatisfactory situation and a reason why, in the interests of the administration of justice, there should be a general grant of special leave to all parties.
GAUDRON J: Yes, thank you.
MR YOUNG: If the Court pleases.
GAUDRON J: Yes? Mr Jackson wanted to add something.
MR JACKSON: Your Honours, could I just say, assuming that the Court adopts the course of adjourning the applications to a full Bench of the Court, then we are in a position to undertake, if the Court requires us to, to apply for appropriate forms of prerogative relief.
GAUDRON J: Well, I think if somebody does, Mr Jackson, it is just to ensure that the issues do not fall through the cracks.
MR JACKSON: I understand the point your Honour is making. Your Honours, I wondered would it be convenient, on that assumption, if the applications were made by way of notice of motion to the Full Court in the first instance rather than by way of - - -
HAYNE J: May there not be advantage in bringing them before a single Justice just to ensure that the parties really are content about the way grounds are formulated, that all the evidence that people want to advance is on and those practical matters?
MR JACKSON: Your Honour, I was going to suggest that in any event that it be mentioned before a Justice for directions after the motion had been taken out. Your Honours, we are perfectly happy to adopt either course. Your Honour, we are happy to either do it by way of order nisi - apply for an order nisi or whatever.
GAUDRON J: Yes. Well, we are about to tell you what we think, Mr Jackson.
Gentlemen, what will occur is this:
(1) Each of the applications for special leave to appeal will be referred for the consideration of a Full Bench of the Court to be heard as on the hearing of an appeal;
(2) Subject to any contrary order of the Court hearing the matter, the three applications for special leave to appeal will be heard together. They will be heard at the same time as the application for relief under section 75(v) of the Constitution foreshadowed by counsel for ASIC and perhaps also by counsel for Yandal Gold.
(3) Direct that ASIC and Yandal Gold, if it is minded to take the same step, apply for an order nisi for relief to Justice Hayne in Chambers on or before 28 April 2000; and
(4) The parties comply with such further directions as may then be given by Justice Hayne.
For your information, one cannot say whether the matter will be heard definitely but the parties should take whatever steps they can to ensure they are ready to proceed at the earliest possible time.
The Court will now adjourn, thank you.
AT 3.10 PM THE MATTER WAS CONCLUDED
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