Elders Limited & Ors v Swinbank & Ors A43/2000 [2001] HCATrans 365 (13 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A43 of 2000

B e t w e e n -

ELDERS LIMITED

First Appellant

DEREL ERF LIMITED

Second Appellant

FOSTERS BREWING GROUP LIMITED

Third Appellant

and

CHRISTOPHER MARK SWINBANK

First Respondent

GREAT LAKES REINSURANCE (UK) PLC

Second Respondent

THE GAN INCENDIE ACCIDENTS COMPAGNIE FRANCAISE D'ASSURANCES ET DE REASSURANCES INCENDIE ACCIDENTS ET RISQUE DIVERS

Third Respondent

ROYAL INSURANCE (UK) LIMITED

Fourth Respondent

LIBERTY MUTUAL INSURANCE COMPANY (MASSACHUSETTS) LIMITED

Fifth Respondent

SCOTTISH LION INSURANCE COMPANY LIMITED

Sixth Respondent

SPHERE DRAKE UNDERWRITING MANAGEMENT LIMITED

Seventh Respondent

LONDON ASSURANCE

Eighth Respondent

TRINITY INSURANCE COMPANY LTD

Ninth Respondent

Office of the Registry

Adelaide No A23 of 2000

In the matter of -

An application for a Writ of Certiorari and Mandamus against DOUGLAS PATON DRUMMOND (a Justice of the Federal Court of Australia)

First Respondent

ROSS ALAN SUNDBERG (a Justice of the Federal Court of Australia)

Second Respondent

SHANE RAYMOND MARSHALL (a Justice of the Federal Court of Australia)

Third Respondent

CHRISTOPHER MARK SWINBANK

Fourth Respondent

GREAT LAKES REINSURANCE (UK) PLC

Fifth Respondent

THE GAN INCENDIE ACCIDENTS COMPAGNIE FRANCAISE D'ASSURANCES ET DE REASSURANCES INCENDIE ACCIDENTS ET RISQUE DIVERS

Sixth Respondent

ROYAL INSURANCE (UK) LIMITED

Seventh Respondent

LIBERTY MUTUAL INSURANCE COMPANY (MASSACHUSETTS) LIMITED

Eighth Respondent

SCOTTISH LION INSURANCE COMPANY LIMITED

Ninth Respondent

SPHERE DRAKE UNDERWRITING MANAGEMENT LIMITED

Tenth Respondent

LONDON ASSURANCE

Eleventh Respondent

TRINITY INSURANCE COMPANY LTD

Twelfth Respondent

Ex parte -

ELDERS LIMITED, DEREL ERF LIMITED and FOSTERS BREWING GROUP LIMITED

Applicants

GLEESON CJ

GAUDRON J

McHUGH J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON MONDAY, 13 AUGUST 2001, AT 2.14 PM

Copyright in the High Court of Australia

__________________

MR W.J.N. WELLS, QC,: If the Court pleases, I appear with my learned friend, MR A.L. TOKLEY, for the appellants in the one matter and the applicants in the other. (instructed by Johnson Winter & Slattery)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: If the Court pleases, in both matters I appear with my learned friends, MS M.A. PERRY and MR G.A. HILL, for the Attorney-General of the Commonwealth intervening. (instructed by the Australian Government Solicitor)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia If it please the Court, I appear with my learned friend, MR C.D. BLEBY, for the Attorney-General for South Australia intervening. (instructed by Crown Solicitor for South Australia)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR R.M. MITCHELL, on behalf of the Attorney-General for Western Australia intervening in both matters. (instructed by the Crown Solicitor for Western Australia)

GLEESON CJ: Mr Wells, is there anyone here who wishes to controvert the proposition that the Federal Court had jurisdiction to hear and determine the application for leave to amend made by notice of motion dated 17 November 1999, and that if the amendment was granted, the Federal Court would have jurisdiction to hear and determine the whole matter?

MR WELLS: Your Honour, I think I would understand the submissions on behalf of the Attorney-General for Western Australia to be that if there is a jurisdiction in the Federal Court to hear and consider the application for leave to amend and that amendment were granted, that there would be federal jurisdiction in the whole matter, but it would not save the judgment of Justice Mansfield on the preliminary issues which had been given before the application for leave to amend. I might misunderstand that, your Honour, but that, I think, is my understanding of their position.

GLEESON CJ: Incidentally, there is no appearance for the first to the ninth respondents and the fourth to the twelfth respondents, but there is a certificate from the Deputy Registrar that she has been informed by the solicitors for the first to the ninth respondents in A43 of 2000 and the fourth to the twelfth respondents in A23 of 2000 that they do not wish to be represented at the hearing and that minutes of consent orders regarding costs issues will be handed up by you.

MR WELLS: That is correct, your Honour.

GLEESON CJ: We can deal with that after we hear perhaps what the Solicitor for Western Australia has to say.

MR MEADOWS: If it please the Court, we would accept that the Full Court of the Federal Court had jurisdiction to deal with the application to amend and that once the amendment had been made, the matter was in

federal jurisdiction. It is only a question of whether that was prospective, in effect, or whether it had some retrospective operation.

GLEESON CJ: Do not the rules of the Federal Court provide that the amendment takes effect from the commencement of the proceedings?

MR MEADOWS: I am sure they do, your Honour, but I do not believe that that would necessarily result in the proceedings being in federal jurisdiction from the outset. We would still maintain that the judgment of Justice Mansfield was made at a time when the matter was exclusively State jurisdiction.

GAUDRON J: But if the amendment were granted, would that have any practical consequence? Would your argument lead anywhere?

MR MEADOWS: Possibly not, your Honour, it is more a question of principle than - - -

GLEESON CJ: But it is our understanding that the respondents will now consent to the amendment or not oppose the amendment. Is that right, Mr Wells?

MR WELLS: That is correct, your Honour. As we would understand it, they would. There would be then a question of whether they could prosecute their application for leave to appeal Justice Mansfield's judgment. That, I think, is where my learned friend's proposition might kick in.

MR MEADOWS: We would not have a problem with the Full Court then entertaining an application for leave to appeal from Justice Mansfield's judgment because by then, once the amendment had been granted, the matter would be in federal jurisdiction. So, sequentially, if the application for leave to amend were to be granted, the matter would then be in federal jurisdiction and the Court would then be in a position where it could entertain an application for leave to appeal from Justice Mansfield's judgment.

GLEESON CJ: Are you aware that the respondent insurers have indicated that they do not now oppose the making of the amendment?

MR MEADOWS: I am aware of that, your Honour.

GLEESON CJ: In those circumstances, is there any real issue for us to determine?

MR MEADOWS: Perhaps not, your Honour. As I say, from our point of view, we were here to argue a matter of principle.

GLEESON CJ: Yes, Mr Bennett?

MR BENNETT: There is one aspect which concerns us, your Honour, and that is the non-constitutional issue in which we have some interest, which is the construction of section 57. Now, of course, we would not suggest for a moment that your Honours would embark on that in a case where it would be academic for the Court to do so at this stage. That will, no doubt, be an issue between the parties on the hearing of the substantive action. But we would invite your Honours, when making the orders and giving the reasons that your Honours are no doubt formulating, to indicate that your Honours have at least not formed any view in favour of the decision of the Full Court in relation to the construction of section 57, so at least it does remain open to that extent. If the Court pleases.

GLEESON CJ: Now, Mr Wells, you have some consent orders?

MR WELLS: Yes, your Honour, we have some proposed orders which have been prepared by consent of the appellants and respondents.

GLEESON CJ: Could you let us have a look at those?

MR WELLS: If the Court pleases.

KIRBY J: Could I just ask the Solicitor for the Commonwealth a question in the light of his last intervention. Why would we say anything in the matter? The parties come to us with consent orders; one of the parties is not present and they ask us to make these consent orders. Their written submissions indicate the basis on which they do so. They accept the jurisdiction; you and the other solicitors are interveners. Why would we say anything at all about the substance of the matter? I mean, the fact is that if we say nothing, we have given no endorsement, nor any disapprobation; we have simply left it as it stands.

MR BENNETT: For this reason, your Honour: In normal circumstances, if an appellant and a respondent agree that the appeal should be allowed, the Court will on the authorities, as I understand them, allow the appeal without deciding whether it is of the view that the lower court was right or wrong. The Court will allow an appeal by consent. However, whereas here the Court has held that it has no jurisdiction, then it seems to me that there is a problem with the Court merely allowing an appeal by consent and it - - -

GLEESON CJ: But it is covered, is it not, if we simply make it clear in what we say that we are allowing the appeal because we take a different view from the Federal Court on the jurisdictional question?

MR BENNETT: Yes, my only concern, your Honour, is that someone may read that and say, "Well, this indicates that the Court did not take a different view on the other issues", and one short sentence saying "We have not considered the other issues" would avoid that consequence.

GLEESON CJ: What about a short sentence that said, "The Federal Court will now have jurisdiction to hear and determine the whole matter"?

GAUDRON J: "And it is unnecessary to decide whether it otherwise had jurisdiction".

MR BENNETT: Because a section 57 issue, the argument on construction, goes beyond jurisdiction. Although it had to be decided for the purpose of the jurisdictional issue, it is - - -

GLEESON CJ: We could say that the Court has jurisdiction to determine all matters in contest between the parties, except the jurisdictional issue.

MR BENNETT: That would achieve the result, your Honour, yes. If the Court pleases.

MR WELLS: Your Honours, I wonder if I might just raise one matter about the proposed paragraph (2). I might say that I am holding a draft of what your Honours have, signed by counsel. Your Honours will see there paragraph 2, "proceed upon an assumption", and the assumption is that this Court takes the view, in allowing the appeal, that the Full Court has jurisdiction to entertain the notice of motion seeking leave to amend - - -

GLEESON CJ: That is a correct assumption.

MR WELLS: Secondly, that if it were to allow the amendment, that it would follow that it would then have jurisdiction to entertain the application for leave to appeal from Justice Mansfield's order, notwithstanding that at the time Justice Mansfield made his preliminary determinations, unless the section 41 argument is the one upon which the Court determines the question of - - -

GLEESON CJ: That is a correct assumption too.

MR WELLS: Well, if it is section 41, your Honour, then it would follow that Justice Mansfield plainly had jurisdiction at the time that he - - -

GLEESON CJ: I am sorry, I did not follow the last - I have not quite heard what you said.

MR WELLS: I am sorry. If this Court is of the view that the plea of section 41 of the Insurance Contracts Act is the reason why there is federal jurisdiction, then it would follow that Justice Mansfield plainly had jurisdiction to determine the preliminary issues.

GLEESON CJ: But it suffices as a ground for our decision that the Full Court of the Federal Court has jurisdiction to hear the application to amend and that if it grants the application to amend, it will then have jurisdiction to hear the whole matter.

MR WELLS: Including the application for leave to appeal.

GLEESON CJ: Yes.

MR WELLS: I am sorry if I am labouring it, your Honour, but the reason why I am is that we have a concern that there might be the amendment granted, but the issue might then be raised: is there a matter within federal jurisdiction from which an appeal can be brought?

GLEESON CJ: What about if you listen to a proposed statement and some orders and let us know at the end of that whether there is any continuing problem?

MR WELLS: If your Honour pleases.

GLEESON CJ: The Court is of the opinion that the Federal Court of Australia had jurisdiction to hear and determine the application for leave to amend made by notice of motion dated 17 November 1999 and that if the amendment was granted, the Federal Court would have jurisdiction to hear and determine the whole matter, including the application for leave to appeal against the decision of Justice Mansfield. Because the respondent insurers do not now oppose the making of the amendment sought and will consent to its making, it is unnecessary to consider whether, as is contended in this Court, the Federal Court otherwise had jurisdiction.

The orders that the Court will make are: in matter No A43 of 2000:

1. Appeal allowed;

2. Orders of the Full Court of the Federal Court of Australia made on 4 February 2000 set aside;

3. Appellant's application for leave to amend their statement of claim and the respondent's application for leave to appeal from the declarations and orders of Justice Mansfield made on 16 June 1999 remitted to the Full Court of the Federal Court of Australia for determination in accordance with these reasons for judgment;

4. There will be no order as to the costs of the appellants' application for special leave or of this appeal;

5. The parties' costs of the proceedings to date otherwise are to be determined by the Full Court of the Federal Court of Australia.

In matter No A23 of 2000, we will order that the application be dismissed with no order as to costs.

MR WELLS: We are content with that.

GLEESON CJ: Very well, those will be the orders of the Court.

AT 2.29 PM THE MATTER WAS CONCLUDED