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High Court of Australia Transcripts |
Last Updated: 27 June 2012
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S125 of 2012
B e t w e e n -
P.T. BAYAN RESOURCES TBK
First Plaintiff
KANGAROO RESOURCES LTD ABN 38 120 284 040
Second Plaintiff
and
BCBC SINGAPORE PTE LTD
Defendant
Summons for directions
GUMMOW ACJ
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 26 JUNE 2012, AT 10.17 AM
Copyright in the High Court of Australia
MR J.T. GLEESON, SC: May it please the Court, I appear with MR P. KULEVSKI for the plaintiffs. (instructed by Clayton Utz Lawyers)
MR C.A. MOORE, SC: May it please the Court, I appear with my learned friend, MR D.J. ROCHE, for the defendant. (instructed by Freehills)
HIS HONOUR: Yes, Mr Gleeson.
MR GLEESON: Your Honour, the issue we seek to raise in the proceedings is one of power, whether there is power to - - -
HIS HONOUR: Before we get too far into that, Justice Pritchard made her order on 5 April, was it?
MR GLEESON: Yes.
HIS HONOUR: It says it is filed on 5 April. It provided for a return date on 18 April, but what happened then?
MR GLEESON: Subsequently, your Honour will see from the blue book that we had prepared – if your Honour has that, at page 47, initially some orders were made for evidence in respect to the hearing of the matter and then on 31 May, in the light of this application having been filed, proceedings are effectively on hold before Justice Pritchard.
HIS HONOUR: Yes. Why cannot these proceedings be remitted to her?
MR GLEESON: The points we seek to raise, we would submit, are of such importance that they command the attention of this Court.
HIS HONOUR: They may ultimately, but they may never demand it.
MR GLEESON: Yes. Could I offer your Honour these matters. First of all, the judges by majority have purported to exercise a rule-making power which we submit is beyond the statute and that is a matter of importance. Secondly, your Honour, of considerable importance is the section 109 constitutional issue we raise in relation to - - -
HIS HONOUR: Well, I will not repeat what Justice McHugh said about section 109.
MR GLEESON: Yes.
HIS HONOUR: He said it was the running down jurisdiction of the High Court.
MR GLEESON: Yes. This is more than running down, your Honour.
HIS HONOUR: What is the 109 point actually?
MR GLEESON: Your Honour, in the blue book the Foreign Judgments Act is found commencing at page 127.
HIS HONOUR: I have a copy of it.
MR GLEESON: Section 5 on page 134, particularly subsections (1) and (6) require that the Act does not apply in respect to judgments of a foreign court unless a decision is made by the Governor-General involving satisfaction of “substantial reciprocity”.
HIS HONOUR: Yes, that is for money judgments.
MR GLEESON: That is for money. In subsection (6) in relation to non-money judgments, again, the Part will only extend if a decision is made as to “substantial reciprocity”. In relation to the High Court of Singapore, the position appears in the Foreign Judgments Regulations which commences at page 157 and on page 159 in section 3, Part 2 extends to money judgments of the High Court of Singapore – that is item 24 on page 163. It does not extend to non-money judgments.
HIS HONOUR: Where do we see that it does not extend to non-money judgments?
MR GLEESON: It is by silence or absence that there is nothing in sections 1 to 5 of the regulation which activates section 5(6) of the Act.
HIS HONOUR: Yes, I see.
MR GLEESON: So the position currently reached is there are two critical elements of the federal scheme. The first is that whether it be money or non-money, the registration and enforcement provisions of the Act only apply if there is the judgment of substantial reciprocity. The second, which is related, is that the scheme of the Act as in operation is that the federal matter under the Act is created only at the point of which there has been obtained a foreign judgment, which is then capable of registration.
What is happening under these rules is that the judges of Western Australia – and it has happened all over the country – are purporting to enact a scheme whereby in advance of a possible federal jurisdiction which may or may not ever come into existence power is being sought to be exercised over assets within the reach of the State – and there is one other matter I have to add to it – in circumstances where there are no substantive proceedings in the State seeking to resolve any controversy between the parties.
So it is those two critical elements together. The fact that we do not yet have a federal matter, and may never have one, and secondly, there is no substantive process of the Supreme Court of Western Australia which in any way needs to be protected which, we submit, has the three consequences: one, that it is beyond the rule-making power; two, it is inconsistent with this scheme; and - - -
HIS HONOUR: Why is it inconsistent with this scheme?
MR GLEESON: Because the scheme has covered the field in respect of the area in which Australian courts are to lend their aid to the processes of foreign courts and it has done so only at the stage of a judgment being obtained and only where substantial reciprocity has been established to the satisfaction of the Executive under section 5. Your Honour, the other section of the Act I should refer to is section 17. It is the other rule-making power that might be relied upon to justify the order. That, we would submit, is not applicable for two reasons, that firstly these - - -
HIS HONOUR: Section 17.
MR GLEESON: Section 17 on page 146.
HIS HONOUR: Yes. Any particular paragraph
MR GLEESON: Yes, two aspects. It comes within none of the five examples for a start. All of them concern a federal matter where one has a foreign judgment which one is seeking to register, so it is outside each of the five examples and, more generally, it is not necessary or convenient to give effect to a scheme for the registration and enforcement of foreign judgments actually obtained to provide for advance Mareva relief in respect to the mere possibility that there may be a matter at a future date.
Your Honour in Ousley discussed when it is that a rule is beyond a rule-making power in respect of practice and procedure and essentially it concerned whether the rule was a means of enforcing the vindication of a legal right. The fact is there is no legal right which is in controversy yet under this Act. There may never be and it can only be a case of the possibility of a future jurisdiction which is being used.
HIS HONOUR: The question is what is the field?
MR GLEESON: The field, yes, and that is the issue raised with that. Your Honour, the final aspect - - -
HIS HONOUR: You say the field covers – would displace the jurisdiction of the State courts to stay a local piece of litigation on the grounds that there was pending outside Australia in another court litigation involving the same issues.
MR GLEESON: It would not cut down on that power of the court to protect its own processes and in terms of CSR v Cigna if the stay is being sought for the protection of the process of the Local Court that is not cut down by the Act. If it is in anti-suit injunction territory where it seeks to act in personam against a person in respect to the bringing of foreign proceedings, that again is not something cut down by the Act because that would depend upon the legal or equitable basis for the anti-suit injunction.
The essential problem here is that there is no process of jurisdiction of the Western Australian Supreme Court which is in any way currently to be protected. At the most there is a bare possibility that there may be at a future date an exercise of federal jurisdiction by that court. That, we submit, would tend to raise some rather larger questions which is even beyond this mere territory of foreign Marevas, that the notion that a court could say, “Because I might acquire a federal jurisdiction tomorrow, I can lock up property today” that, we submit has the Chapter III implication that we raise on our third point.
Our fourth point, which we submit is of some importance, is whether there is any inherent jurisdiction which would, nevertheless, justify what Justice Pritchard did. On that question, your Honour, there is a current conflict of authority between Western Australia and New South Wales. In Western Australia Justice Murray dealt with that point in the case at page 49, which is The Official Receiver v Raveh and held there is no inherent jurisdiction. That remains the authority in the State.
Justice Campbell in New South Wales in Davis, which is a case at page 57, has taken a broader view of the inherent jurisdiction and it is a case, we submit, that is wrong, but part of the reason for this Court to consider the matter is to resolve the difference between these two decisions, admittedly at first instance.
HIS HONOUR: Yes, exactly.
MR GLEESON: Your Honour will see that in the case at page 57, which is Davis, the circumstances were that a worldwide Mareva order had been obtained from a court in the Bahamas and at paragraph [1] of the judgment, the issue framed by Justice Campbell was whether the New South Wales court should grant a Mareva in support of, as he expressed it, the Mareva order issued in the Bahamas.
Now, one of the difficulties of the judgment is that it has not addressed the implications of the Foreign Judgments Act upon the situation. His Honour adverted briefly to the Act in paragraph [15] by observing that, correctly, the regulation did not extend the Act to the recognition or enforcement of the foreign Mareva order. That is clearly correct. What his Honour has then not done is to consider whether it remains open, in the face of the scheme of that Act, for the State court to be granting a form of recognition or enforcement to the non-money judgment of the court of the Bahamas. Your Honour, the reason that it is of some importance for this Court to consider the matter is that if your Honour were to go over to the section commencing at the foot of page 50 of the book - - -
HIS HONOUR: It is not a question of the Court considering, it is a question of the Court considering it when.
MR GLEESON: When – yes, I appreciate, your Honour, that is the question. What I am seeking to put is that this difference that has emerged between the States essentially involves the outer limits of Cardile v LED Builders. Justice Murray has regarded Cardile as giving no authority for this type of Mareva for the essential reason that there is no process of the Local Court needing protection.
HIS HONOUR: Yes.
MR GLEESON: Justice Campbell has taken a different view. He set out Cardile between paragraphs [26] and [33] of his judgment at some length and there is no quarrel with setting out the judgment. The one paragraph of his judgment that we submit is sufficiently important for this Court to consider – perhaps the one or two – are paragraphs [35] and [36]. They are the complete nub of the case.
HIS HONOUR: Yes.
MR GLEESON: So that what his Honour has effectively found as the only instances which provide an analogy are some remedies in equity for the bill of discovery or the taking of testimony and from that has moved to the more general proposition that the administration of justice within any one State of Australia involves acting in aid of judgments which might or might not be obtained from foreign courts and which might, or might not, ever reach registration in Australia. Your Honour, in terms of whether the point is discrete and available to be looked at conveniently by the Court, on our case there are no matters that we would - - -
HIS HONOUR: Your opponent says there are matters of evidence as to foreign law.
MR GLEESON: Might be – they identify no paragraph of our statement of claim which alleges a fact which they say is in dispute. The two essential facts are the ones I have sought to mention to your Honour which could not be in dispute, namely the Singaporean proceedings have not proceeded to any judgment. Indeed, they have not even sought Mareva relief in personam in Singapore, which one would expect to be the normal relief. The second fact is that there are no substantive proceedings brought, contemplated or available in Western Australia to resolve the controversy. So that is what takes the matter into the territory which Cardile did not need to consider.
We would submit that given that it is a new uniform regime, I should inform your Honour that orders are starting now to be granted under it throughout Australia. This case is probably the first. Justice Sackar has granted one in New South Wales. The provisions apply in all States and in the Federal Court and there is a fairly important public interest. If it be the case that this entire regime is beyond the rule-making power of these judges of all the superior courts of the country, we would submit it would be quite appropriate for this Court to consider the matter and so hold.
HIS HONOUR: What is the position with 78B notices?
MR GLEESON: We have issued those. The responses are coming in. Some are still considering the matter.
HIS HONOUR: All right. I will see what Mr Moore says.
MR MOORE: My learned friend has identified a section 109 argument for the first time today. I will not try and deal with it on the run, but he is not confining his case to that argument as obviously is the case. Instead he wishes to argue that there is no general jurisdiction to make such orders. It is almost impossible to say right now that that question will not involve any factual consideration arising out of the matrix of circumstances in which the discretion might fall to be exercised and, in particular, in light of the recognition of the doctrinal basis for this in, for example, Cardile’s Case.
HIS HONOUR: It is Cardile.
MR MOORE: I am sorry, your Honour. In Cardile’s Case which was, of course, founded either in frustration of the court’s process or to promote the administration of justice. Those are circumstances which might give rise to an array of matters, including questions such as whether there was a deliberate attempt to frustrate that process of the court and other factual matters of the sort that may arise in this case and which might need to be the subject of determination before the matter is really ripe for consideration by this Court on that question.
HIS HONOUR: Are both of you are appearing in these proceedings in Perth at the moment?
MR MOORE: Dr Bell is appearing.
HIS HONOUR: It seems to be an east coast takeover but - - -
MR MOORE: It is an east coast takeover, yes.
HIS HONOUR: Do they have a proceeding in the Supreme Court of Western Australia whereby Justice Pritchard could decide some facts and refer questions of law to the Court of Appeal? I would imagine so.
MR MOORE: One would imagine so, or indeed, there is no reason also why this – if this matter had not been commenced here, it probably would have been determined by now by Justice Pritchard. There was a further hearing listed on 6 June with an idea of getting the matter ready for hearing promptly, which probably would have occurred and been decided by now, but in any event that could be done speedily by her Honour in Western Australia. Either there could be a referral of questions or, indeed, it could be decided and then any appeal could lie. So it could be determined quite speedily. There is no reason that would take a very long time.
HIS HONOUR: Yes, all right.
MR MOORE: In relation to the section 109 point, of course, one has to appreciate that in terms of covering the field, that statute makes provision for the judgment when registered to be given effect as if it was a judgment of the Local Court that could not exclude or cover the field in relation to all the provisions of the Local Court in terms of enforcement mechanisms which are not spelt out in the federal field. Of course, this may be – this enforcement in advance of a judgment or a Mareva relief ought to preserve the substance of the judgment. It may be an aspect of that and that is really a question for another day. So we would say the matter ought be remitted. If your Honour is not prepared to make that order today then we would like a further opportunity, having heard the 109 argument for the first time, to advance that again, but that is the appropriate course we suspect is likely to be required in this case.
HIS HONOUR: Yes, Mr Gleeson.
MR GLEESON: Your Honour, there was no issue of discretion which we seek to raise. The issue goes solely to power, so that is a red herring to suggest those matters of fact could arise.
HIS HONOUR: It might when you get back first instance, though.
MR GLEESON: Yes. Your Honour, we do need to point out that there is no fact in our statement of claim that has been squarely identified as an issue. The essential issue your Honour has raised for our consideration is when - is it now or possibly at some later date the Court should look at this matter.
HIS HONOUR: Well, after we have the assistance of an intermediate Court of Appeal.
MR GLEESON: Yes. We cannot cavil with the fact that we do not currently have that. What we do, though, put for your Honour’s consideration is that in circumstances where it is the rule-making power that has been exercised by all of the judges of the superior courts below this Court, and where the essential issue is whether there has been a mistaking of the limits of that power so that judges are giving themselves jurisdiction instead of making rules for the operation of a jurisdiction they have, that that issue is so fundamental at its heart that it is appropriate for this Court to consider it.
HIS HONOUR: Having heard the arguments on each side, I am of opinion that this litigation is best dealt with by remitting it to the Supreme Court of Western Australia where it can be linked to the proceeding presently before Justice Pritchard in that court and in due course this Court can be expected to have the advantage of any decision on the subject which is reached by the Court of Appeal of that State under the procedures available in the Supreme Court of Western Australia. In particular, I am not satisfied that the proposed argument relying upon section 109 of the Constitution is of such immediate force as to require the intervention, at this stage, of the High Court. Accordingly, the Court orders that:
MR GLEESON: May it please the Court.
HIS HONOUR: I will now adjourn.
AT 10.49 AM THE MATTER WAS ADJOURNED
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