McIntyre v Edlan No 54 Pty Limited S115/1999 [2000] HCATrans 30 (11 February 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S115 of 1999

B e t w e e n -

AURO ROMANO McINTYRE

Applicant

and

EDLAN NO 54 PTY LIMITED

Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2000, AT 10.41 AM

Copyright in the High Court of Australia

MR B.W. COLLINS, QC: If your Honours please, I appear with my learned friend, MR M.J. COHEN, for the applicant. (instructed by K.A. Garling)

MR M.J. SLATTERY, QC: May it please your Honours, I appear with my learned friend MR M.A. ASHHURST, for the respondent. (instructed by C. Adamson)

MR COLLINS: If your Honours please, the application can be dealt with by almost ignoring the written submissions. If I could just clear the ground for - - -

GAUDRON J: What do you mean by that?

MR COLLINS: Because I can put it much shorter than the written submissions do, your Honour. Simply that. Your Honour, could we clear the ground by indicating that the only issue between the parties now concerns the Federal Courts (State Jurisdiction) Act 1999 . That is for this reason. The respondents have now conceded that there was no jurisdiction in the Federal Court to make orders 5 and 10 so your Honours need not be concerned with much of what - - -

GUMMOW J: That is right, but a question will arise, maybe at some stage, when some step is taken under the State Act in the State court.

MR COLLINS: That is so, your Honour.

GUMMOW J: It has not happened yet.

MR COLLINS: That is so, it has not happened yet, your Honour.

GUMMOW J: Why are we here?

MR COLLINS: Could I deal with that, your Honour, because I think your Honour is dealing, with great respect, with the question of whether we should be moving by way of rule nisi for prohibition.

GUMMOW J: I am not inclined to that course, either.

GAUDRON J: No, I do not see how you can do that.

MR COLLINS: Not yet, anyway, but, your Honours, could I address your Honour Justice Gummow's question directly. There are several reasons why we say it is appropriate for the matter to be dealt with now in the way the matter is presently constituted. Firstly, there are adverse orders against Auro McIntyre made by a superior court of record and they stand.

GAUDRON J: Has anybody sought to enforce them?

MR COLLINS: No, they have not yet, your Honour, no.

GAUDRON J: Have they sought to enforce them in the Federal Court?

MR COLLINS: No, apparently not. No step has been taken yet.

GAUDRON J: No, and have they sought to enforce them in the Supreme Court?

MR COLLINS: Nothing has been done in the Supreme Court either by way of enforcement, your Honours.

GAUDRON J: Then, why are we here?

MR COLLINS: Your Honours, if I could deal with the second answer to the question. We say that these orders can only be set aside by this Court. For reasons that were made apparent in Wakim, the Federal Court did not have jurisdiction to - - -

GAUDRON J: You want them set aside on the basis that there is no jurisdiction?

MR COLLINS: Yes, we do, and that has not yet been done and cannot be done by other than this Court.

GAUDRON J: And why would we not work on the assumption that the Federal Courts (State Jurisdiction) Act applies and, therefore, we would not set them aside, question whether it does apply, determined if and when somebody seeks to enforce the orders as orders of the Supreme Court?

MR COLLINS: Yes. Your Honour, we simply say that once the want of jurisdiction has been conceded by the respondent, then this Court can, by simple application, we would respectfully submit, of section 35A take this as an appropriate vehicle within which, or through which, to decide this particular question.

GUMMOW J: Particular question, what is the question?

HAYNE J: What question?

MR COLLINS: I understand what your Honours are putting. Because of the way in which the Act was enacted about two weeks after Wakim and two weeks and one day after the decision in this case which was brought down the afternoon before Wakim was handed down, there was never any opportunity, it was not possible for the issue to ever be part of the appeal to the Full Court of the Federal Court.

HAYNE J: But what is the question which now is live between these parties? The respondent to this application, you tell us, has done nothing so far.

MR COLLINS: That is right, your Honour.

HAYNE J: What is the issue, what is the question?

MR COLLINS: We have to convince your Honours and interest your Honours in the consequences of the argument that section 35A, when it speaks of a proceeding involving a question of law, we are asking your Honours to treat this proceeding and the cognate question of the operation of the Federal Courts (State Jurisdiction) Act as involving a question of law of public importance.

GAUDRON J: I think you have a more difficult problem than that, Mr Collins. You have to persuade us that a real justiciable issue has arisen and not merely an academic question.

MR COLLINS: Yes. Your Honour, we do that by pointing to the only matter the respondents rely upon in defence, as it were, of our assertion that the Act is invalid. The respondents take their - - -

GAUDRON J: Which Act do you say?

MR COLLINS: The Federal Courts (State Jurisdiction) Act. They take their stand - - -

GAUDRON J: But where has that question arisen?

MR COLLINS: Your Honour, it has not arisen in the context of any pleadings nor, of course, in the appeal because of the time sequence that I have referred to, but it is now the only issue which stands between the parties.

GAUDRON J: And were Mr Slattery's client to seek to register the judgment as a Supreme Court judgment, then the question, presumably, would arise.

MR COLLINS: Your Honour, we simply say that if section 35A of the Judiciary Act is given that extended meaning which, in our respectful submission, the language there - - -

GAUDRON J: Section 35A of the Judiciary Act?

MR COLLINS: Yes, an issue has arisen in relation to the proceedings. That is an issue which raises a question of law "of public importance". As Sir Anthony Mason said, "True, extrajudicially, the draftsman of section 35A wasn't talking about an issue arising in the appeal." The language was deliberately chosen and the word "proceedings" was deliberately chosen and it is our respectful submission that having regard to the breadth of that section, if this Court is interested in the point which is not academic, then it can nevertheless - - -

GAUDRON J: It may not be academic in one sense of the word but you have to establish that it has arisen, do you not?

MR COLLINS: The structure of the present pleadings leaves us in this position. The only stance which the respondents take is a stance which relies utterly and completely upon that Act.

GAUDRON J: Forget about the respondents because they are reacting to your application.

MR COLLINS: They are, your Honour, indeed, and in doing so they have said that this particular case is ill-founded because we have a valid State Act. We say that is wrong and this Court ought to entertain the question of whether or not that Act is a valid exercise of the power and we then raise the constitutional questions arising out of Chapter III.

Your Honour, if it were otherwise it would be necessary for there to be different sets of proceedings in circumstances where my client has to have the orders of the Full Court set aside in any event. So it is a two-step proceeding no matter what one does.

HAYNE J: Why would the issue not arise if the sheriff came to call to enforce the judgment as a judgment of the Supreme Court of New South Wales and until the sheriff comes to call, why is there any live question?

MR COLLINS: Yes. Well, your Honour, I suppose the direct answer to that is because there are extant orders of a superior court of record on foot directed to my client and that is the answer that we give. There are also other orders, if I can just turn them up, which are still on foot.

GUMMOW J: All of this would be material if section 11 of the State Act had been enlivened.

MR COLLINS: Your Honour, that, with great respect, is the curious thing about the Act. The Act does not speak of any particular action.

GUMMOW J: There is a matter already in the Court that has been removed from the Supreme Court of South Australia where just that had happened.

MR COLLINS: Yes, but, your Honour, this particular Act, in our respectful submission, is, on its face, enlivened without the Supreme Court of New South Wales doing anything. So what you have then is an interposition into the Chapter III order of courts. You have a decision which has not been made by a court, a decision which has been deemed to have been made by the court, never adjudicated upon within the way that expression is understood in Re Navigation Act, and this Act, without more, no judge of this Court needs to look at the papers in the Federal Court proceedings for it to be otherwise than a deemed judgment of the State court.

In other words, this Act says, without the papers even coming to the Supreme Court of New South Wales, it is deemed to be a judgment of that court and then, in the context of 73(ii) of the Constitution it purports to confer a right of appeal to this Court in respect of a decision that was never made by the Supreme Court and that is the rub, in our respectful submission.

GAUDRON J: That may be a problem but you are not seeking to appeal from that decision?

MR COLLINS: No, your Honour. No decision could have been made in relation to that because the Act did not exist when we lost in the Full Federal Court.

GAUDRON J: Yes, so you are not seeking to appeal from any deemed State decision.

MR COLLINS: No, we are not, your Honour, nor any action reliant upon that.

GAUDRON J: And nor do you seek to raise any point as to the decision given by the Full Federal Court other than that it was without jurisdiction?

MR COLLINS: Quite. That is so, your Honour.

GAUDRON J: Yes. Now were somebody to seek to enforce that judgment in the Federal Court there is no doubt there would be remedies available. That is correct, is it not?

MR COLLINS: No doubt, your Honour. That is so, your Honour, indeed.

GAUDRON J: Yes. Were people to seek to enforce the judgment in the Supreme Court then the question would directly arise.

MR COLLINS: It would, your Honour, indeed. I cannot cavil with that. We say when it has been made quite plain by the respondents that they propose to rely upon the Act, why wait? There was a need to put on an appeal - - -

GAUDRON J: It is something called - it may well lie in the nature of judicial power and what was said in re Judiciary and Navigation Act.

MR COLLINS: Yes. We, in fact, found on that passage, your Honour. We say that there can be no effect given to the State Act because there is an absence of the very matter which was defined by the High Court in re Judiciary. There has been no matter. You cannot deem the Supreme Court to have done something it has not done and that is the issue which stands between the parties and we say if 35A is given the interpretation for which we contend, that that is a matter which is now presently alive and it is not premature to raise it within the context of the appeal. It was taken from the Full Court's judgment. So far as the orders go, your Honour, there are orders which, at the moment - - -

GUMMOW J: What is the order which you seek to appeal for?

MR COLLINS: It is 5 and 10, your Honour. That is the order that Auro pay $500,00 - - -

GUMMOW J: Which page?

MR COLLINS: Your Honour, I will just turn that up. They can be found, your Honour, at page 98 and on the same page your Honours will see, in relation to the - - -

GUMMOW J: Just tell me again, page 98?

MR COLLINS: Yes, your Honour, at page 98 of the application book.

GUMMOW J: Yes. Which orders?

MR COLLINS: Orders 5 and 10, your Honour. Now 5, your Honour, is what supports an order which has already been made. If I could deal with the matter that your Honours Justice Gaudron and your Honour raised with me, there is an unpaid vendor's lien over the property in relation to the amount of money which is referred to in paragraph 5, so nobody is waiting around for an order to take effect. There is an order at the moment which is conditioned upon the validity of order 5.

GAUDRON J: I am sorry. There is an order that you pay $505,000.

MR COLLINS: That is so.

GAUDRON J: What is the other order that is conditioned upon that?

MR COLLINS: It is the declaration, your Honour, in 9(a) at line 35 on that same page and (b).

GAUDRON J: So, similarly, that takes no effect.

MR COLLINS: Those are orders - - -

GAUDRON J: Unless - yes.

MR COLLINS: I am sorry, I did not mean to interrupt your Honour, but we say those orders are orders directed to us and, in terms, they have effect. It is not as if someone has to come along and enforce anything because our rights are already interfered with by the existence of the lien which has been brought into creation by the declaration made at line 35 on page 98. Now, we could wait for more serious consequences, it is true, but at the moment - - -

GAUDRON J: I do not follow what you say are the consequences. You do not seek to argue, for example, that that declaration should not have been made, that the court erred in making that declaration.

MR COLLINS: No, we do not. It is purely jurisdictional, your Honour, purely.

GAUDRON J: Yes, and we know that none of these orders can be enforced by the Federal Court.

MR COLLINS: That may be so and I accept it for the purpose of - - -

GUMMOW J: Or that if an attempt is made, it can be restrained by 75(v)?

MR COLLINS: Yes. I understand what both your Honours are, with respect, putting but, at the moment, my client's title has this particular cloud on it and that encumbrance operates as a direct, rather than an academic or theoretical encumbrance upon the property, day in, day out. That has already happened.

HAYNE J: You will need to explain further to me why a declaration which the parties to this proceeding accept was made without jurisdiction constitutes an encumbrance.

MR COLLINS: Because it is an order made by a superior court of record, your Honour, and until set aside, it binds my client. That is what supports the caveat which has been lodged on the title.

GAUDRON J: Well then, perhaps you can test this in proceedings for removal of the caveat.

MR COLLINS: Well, your Honour, yes.

GAUDRON J: Then you have - - -

HAYNE J: A real controversy tender position.

GUMMOW J: A real controversy.

GAUDRON J: Yes.

MR COLLINS: I understand what your Honours are putting and we are alive very much to that. We are probably guilty of seeking to avoid two or maybe three different sets of proceedings and if we started that set of proceedings, then there would have to be an application under section 40 for removal and so on, or, alternatively, we could see a single Justice in chambers and ask for an order nisi and so on but, in the way this case ran, it was necessary for an appeal to be placed on within the time limited for appeals from Full Court judgments.

While that was happening, this Court was doing its work in Wakim and the State legislature was doing its work with the Federal Courts (State Jurisdiction) Act. All of those things have combined to, within the framework of this existing proceeding, bring forward a controversy which is both real and immediate from my client's point of view.

It is not a once in a 100 year occurrence of the kind that Mr Gross was just talking about but it is highly unlikely that this Court will be handing down a judgment at 10 am one morning and the Full Court of the Federal Court handing down a judgment at 4.30 the day before and an Act coming down two weeks later.

Now, it is the concatenation of those three circumstances which brings us here today within the framework of that existing appeal. But if your Honours are of the view that it is premature then there is nothing we can add to meet that point.

HAYNE J: Can I raise the question about the caveat and removal of caveat in this way, that if those proceedings are taken, the issues that may arise in that context may be very different from the way in which the issue you say is now tendered for decision. Other considerations may intrude in the caveat issue which do not involve construction of the Constitution.

MR COLLINS: Indeed they may, your Honour, and we would, with great respect, urge that upon your Honours as commending the course we have taken because in what I call that ground-clearing exercise a few moments ago, I was at pains to point out that there is no other issue before this Court. Nothing encumbers the clarity or the purity or the lack of it, we would say, of the constitutional point. There is no factual matter of any other kind - - -

HAYNE J: But that may not quell the controversy between these parties because of the other issues that may arise in the caveat proceeding and that is the concern.

MR COLLINS: Yes, your Honour, there could be in the caveat proceedings, for example, a real question of whether there was a caveatable interest or whether the caveat was expressed in the proper form. We do not want this question that we have brought here today to be encumbered by any of that and we have, for our part, in our submission, seen the case at the moment stripped of all of the factual matters as being unencumbered by anything else so that we say today if the respondents concede that the Full Federal Court's decision was bad for want of jurisdiction, that that is the only issue and the question of removal and organising agreed statements of fact and all of those difficulties do not enter into the matter if we can convince your Honours that 35A, where it talks about not an issue in the appeal but a question of law in the proceedings, if we can convince your Honours that that has the breadth to carry what I seek to ask your Honours to do, then your Honours would grapple with the issue now rather than wait for all of the attendant difficulties and uncertainties which attend the selection of an appropriate vehicle, whether it be a section 40 removal or not or asking a court to state questions and so on.

If I can be colloquial, your Honours, I think my time is up, if I resume my seat, unless your Honours have any questions you - - -

GAUDRON J: It seems to me that you could, having an interest in these proceedings, have commenced proceedings in this Court for a declaration which would tender exactly the same issue but, of course, the parties would be a little different. You would have to include the State of New South Wales.

MR COLLINS: Yes, we would have to find an enforcement officer.

GUMMOW J: A declaration might not have any utility unless something was going to happen.

MR COLLINS: Yes, I do not think Mr Slattery's client has any intention other than to pursue my client to the very end of the earth. I have not seen any lessening of his ardour in that respect and we are facing up, as it were, to that inevitability.

GUMMOW J: Well, you are seeking a pre-emptive strike.

MR COLLINS: Your Honour sees it as a pre-emptive strike and it is too early but, your Honour, the question will never be, if I may be colloquial without being rude, as lean and as mean as it is at the moment. There is no excrescence attaching to the question.

GUMMOW J: That, in a way, is the very problem.

MR COLLINS: But I hope I have met it directly, your Honours. They are not things that we had not, of course, thought about before this morning but those are the matters that we put before your Honours to commend the application. Unless there is anything else your Honours wish to ask me, that is all we have to put.

GAUDRON J: Thank you, Mr Collins. We need not trouble you, Mr Slattery.

It is not in issue that the Federal Court of Australia did not have jurisdiction to determine the cross-claim the subject of the present application. Rather, special leave is sought to agitate questions with respect to the provisions of the Full Courts (State Jurisdiction) Act (NSW). Questions with respect to that Act are premature, no action having yet been taken pursuant to it. Accordingly, special leave is refused. The matter has been the subject of written submissions as to costs, so it is refused with costs.

AT 11.03 AM THE MATTER WAS CONCLUDED