Burge v Commonwealth Bank of Australia & Ors [2016] HCATrans 224 (15 September 2016)

Last Updated: 16 September 2016

[2016] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M124 of 2016

B e t w e e n -

SUSAN BURGE

Plaintiff

and

COMMONWEALTH BANK OF AUSTRALIA

First Defendant

ROBERT RALSTON

Second Defendant

THE SUPREME COURT OF TASMANIA, THE JUSTICES AND ASSOCIATE JUSTICE THEREOF

Third Defendant

FINANCIAL OMBUDSMAN SERVICE LIMITED

Fourth Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 15 SEPTEMBER 2016, AT 9.33 AM

Copyright in the High Court of Australia

____________________

MR P.E. KING: If your Honour pleases, I appear for the plaintiff. (instructed by Lorne Havenstein Lawyers)

MR P.G. WILLIS, SC: If your Honour pleases, I appear with my learned friend, MR P.L. JACKSON, SC, for the first and second defendants. (instructed by Simmons Wolfhagen Barristers & Solicitors)

MR A.F. SOLOMON-BRIDGE: If your Honour pleases, I appear on behalf of the fourth defendant, The Financial Ombudsman Service Limited. (instructed by Arslan Lawyers)

HER HONOUR: Mr King.

MR KING: Thank you, your Honour. If the Court pleases I move on the summons filed on 6 September 2016 for interim relief, the terms of which have been set out at page 12 of the plaintiff’s written submissions filed on the same day and reflect the paragraph 1 of the summons. I have instructions to give the usual undertaking as to damages.

HER HONOUR: Do I have any evidence of the value of that?

MR KING: Your Honour does. In Ms Burge’s affidavit she demonstrates, firstly, that there is value in the personalty which is held – which belonged to her in excess of the current claim of the Bank so far as it is known, that value being $330,000, the Bank’s claim at present date being about $250,000. In addition there is equity in the family home which is about to be sold by the first defendant.

We respectfully submit, your Honour, that the Court should grant the orders sought because there is a serious question to be tried and the balance of convenience favours that cause. We respectfully adopt the written submissions of the plaintiff, both in-chief and in reply. Could I just ask your Honour to go those because there are one or two errata which I need to correct, in particular in the reply filed yesterday, your Honour.

HER HONOUR: Yes.

MR KING: If your Honour would go to paragraph 10, in line 4, towards the end of the line it reads “and went on to that” – it should read “went on to observe that”.

HER HONOUR: Sorry, page 4, paragraph 10. Is that what you are talking about?

MR KING: Yes.

HER HONOUR: My fourth line reads, in reference to the Sumampow decision, “where the claim for a writ of certiorari against” – is my fourth line.

MR KING: I am sorry, your Honour, I should have said paragraph 8, line – I think it is unnecessary. It is a typographic, your Honour, I do not press that.

HER HONOUR: Right.

MR KING: Then the next one is at paragraph 26.

HER HONOUR: Yes.

MR KING: We refer to paragraphs x and y and I need to give your Honour the references.

HER HONOUR: I do not have an x and y in my paragraph 26, Mr King. My paragraph - - -

MR KING: I am sorry, paragraph 22, my apologies.

HER HONOUR: Yes.

MR KING: The relevant paragraphs are Ms Burge’s affidavit, paragraphs 174 to 184.

HER HONOUR: Thank you.

MR KING: Summarised at paragraph 234.

HER HONOUR: Thank you. So I have inserted “174 to 184” and “234” into that space on the third line of paragraph 22.

MR KING: Thank you, your Honour.

HER HONOUR: Thank you.

MR KING: Then if your Honour goes to paragraph 26 at page 8, about line 28, it refers to “variations as evidenced in the affidavit of the Plaintiff”. Those variations are evidenced at paragraph 50 of Ms Burge’s affidavit and paragraph 88.

HER HONOUR: All right. Well, I have inserted after the word “Plaintiff” “paragraphs 50 and 88”.

MR KING: Thank you, your Honour. Those are the only corrections.

HER HONOUR: Thank you.

MR KING: Your Honour, it is our respectful submission that the serious question – the principal serious question on which other questions depend is whether the whole foundation of the first defendant’s asserted right on the 23rd and 24th of this month to sell my client’s land and personalty under the credit contract and mortgage dated 2010, later varied in 2011 and 2014, is void, or should be set aside by the Court upon the grounds set out in the plaintiff’s application to show cause.

As to the balance of convenience we submit respectfully that favours the restraint until trial because, from the plaintiff’s standpoint, she stands to lose not only her property but also the family home of herself and her daughter who is unwell, whereas from the Bank’s point of view, its interest is protected by interest, including a proper claim for accounting - the amount in issue being in dispute - and a substantial remaining equity in the property and personalty. Your Honour, it may be of assistance to the Court if I take your Honour straight to the written submissions of the defendants.

HER HONOUR: Before you do that, Mr King, I should tell you that I have read all of the submissions that have been filed and all of the affidavits.

MR KING: Thank you, your Honour.

HER HONOUR: It seems that one of the principal issues between you and at least the first and second defendants is this question of jurisdiction. Now, I have read your submissions in reply and also your submissions up front dealing with your contentions about the Commonwealth Bank. Is that what you propose to deal with now?

MR KING: Yes, we respectfully submit that the first error in the respondents’ case regarding jurisdiction is to fail to address the Court’s powers under the Judiciary Act which are independent of and supplementary to the exclusive jurisdiction that the Court has under sections 75 and 76 of the Constitution.

HER HONOUR: Just so that I am clear – you will have to lead me through this – is your contention that the Court does not have jurisdiction under sections 75 and 76?

MR KING: No, we contend that it does.

HER HONOUR: I see. So you are dealing with the Judiciary Act point first?

MR KING: Yes.

HER HONOUR: Right.

MR KING: In Re Refugee Tribunal; Ex parte Aala, Justices Gaudron and Gummow at 14 observed that in addition to the original jurisdiction, the Court:

may also attract the exercise of the powers conferred in general terms by s 31 of the Judiciary Act 1903 (Cth).

At note (41) their Honours observed:

Section 33(1) of the Judiciary Act empowers the High Court to direct the issue of certain writs, but their specification does not (s 33(2)) limit by implication the power of the High Court to direct the issue of any writ.

In this case that includes an injunction - - -

HER HONOUR: All right, let us just deal with this with some precision because you are going to have to help me on this. Which part of the Judiciary Act is it that you rely upon giving rise to this contention that there is an independent source of jurisdiction for this Court relevant to this case, independent of the Constitution? As I understand that is your contention.

MR KING: Supplementary to it, yes.

HER HONOUR: Supplementary or independent? My note says you said independent of the Constitution. I just need to make clear I understand what you are saying.

MR KING: Yes, and derived from the Judiciary Act itself.

HER HONOUR: So independent of the Constitution.

MR KING: Supplementary to it, your Honour.

HER HONOUR: All right, so does that mean I have to start in the Constitution?

MR KING: Of course, the Parliament has to have power to pass the Judiciary Act, so to that extent one starts in the Constitution.

HER HONOUR: Right, well, let us start with the Judiciary Act for present purposes. Which section do you rely upon for jurisdiction in this case?

MR KING: We rely upon section 31.

HER HONOUR: “Judgment and execution”.

MR KING: Yes - section 33(1)(a) and (e), section 30(a) and then, so far as your Honour sitting as a single Justice is concerned, section 16 and the powers of a single Justice in open Court, in this particular case to grant interim relief pending a hearing of the type that Justice Walsh considered and granted on terms in Inglis.

So, for example, there is a discussion in the cases to which we have referred, by Justices Gummow and Hayne in Re Patterson (2001) 207 CLR 391, especially at 138 and following in their Honours’ order at 254, demonstrating that apart from the exclusive constitutional jurisdiction to make an order directly against the Parliamentary Secretary, in that case deriving from her status as an officer of the Commonwealth – in that case it was Ms Patterson, the Parliamentary Secretary for Immigration, against whom the order was made, there was also power under section 31.

In that case certiorari was granted and, of course, as your Honour knows, the debate regarding section 75(v) in the absence of any specific referral to certiorari, so the High Court has observed that the power to make that order ultimately is derived from section 31, independently of section 75.

In the present case, if your Honour is persuaded for the reasons set out in Ms Burge’s affidavit and our written argument that there is a serious question for trial, namely whether the Bank does have a right to sell her property, then we would respectfully submit your Honour’s power to make that order set out at page 12 of our written submissions derives from, amongst others, section 16 and section 31 primarily, but the other sections as well.

For example, Justice Kirby in the matter of – sitting as a single Justice in the matter of Re Owen [2001] HCA 55 at [30] indicated the Court was prepared to issue certiorari against a Justice of the Supreme Court of Western Australia in relation to an asserted failure to exercise federal jurisdiction or an erroneous exercise of federal jurisdiction, an error of the type that we say exists in this case.

As it turned out on the merits, his Honour determined that he would not issue that order, but nonetheless it demonstrates two fallacies in the defendants’ arguments: firstly, that this Court will issue constitutional writs against State courts, including the Supreme Court; and, secondly, that the source of that power is not limited by section 75.

Another example is the decision and observations of Chief Justice Barwick in R v The Federal Court of Australia; Ex parte Western Australian National Football League [1979] HCA 6; (1979) 143 CLR 190, especially at paragraphs 29 to 30 in the medium neutral reports. There his Honour gives some examples.

We also say that the Court’s exposition of jurisdiction as the ultimate supervisor of the judicial system of the Commonwealth in Kirk’s Case in its role as the “Federal Supreme Court” identified in section 71 of the Constitution also empowers it to grant in an appropriate case in the exercise of that supervisory jurisdiction, in the present case, a temporary stay or restraint so as to permit the question as to the legitimacy of what is being done to be determined.

We noted that in our friends’ submissions they refer to Kirk and appear to acknowledge that Kirk may be a way forward for the plaintiff to obtain jurisdiction in this Court. They then, in their own cause, submit that it does not go far enough in the present case but no reason is given, in our respectful submission, and it is contrary to principle.

Again, in Twigg’s Case, which is cited by Justices Gaudron and Gummow in the Refugee Tribunal citation to which I referred earlier, Justice Gibbs at pages 25 to 26 held that it was not necessary for the prosecutor to appeal the order of the Federal Court judge in that case - that case was a Family Court judge – if it was demonstrated that there was otherwise a right of prohibition.

That, we say, is the answer to another submission put by my learned friends that section 31, to use Justice Gibbs’ expression, is available for the Court to grant the “more appropriate remedy” if prohibition or certiorari or

injunction which is specified in 75(v) against an officer of the Commonwealth does not exist.

His Honour also referred approvingly to observations of Justice Mason in R v Marshall; Ex parte Federated Clerks Union [1975] HCA 37; 132 CLR 595 at 609 and analysed the case which has perplexed some of the academics – Pitfield v Franki 123 CLR 448 in that way.

It may be recorded, your Honour, that in the case of Kable, which is also referred to in the defendants’ submissions, Justice Gummow decided the case on the basis that instead of making – granting an appeal, although ultimately that was the order made, that his Honour thought the appropriate course was to exercise the original jurisdiction of the Court and grant a declaration. That could only have been granted under section 31. We seek declaratory relief in this Court on that basis.

So independently of those provisions, we would respectfully submit the Court has that jurisdiction, original jurisdiction. Chief Justice Barwick in The Crown v The Federal Court referred to it as a large and important jurisdiction of this Court. It is large and important, in our respectful submission, because it is the ultimate means of control of the judicial structure of Australia by the Court which sits at the apex of the judicial structure. If it is to be cut down or restricted by the sorts of limitations proposed by the defendants, we submit that is antithetical to the exercise of that supervisory jurisdiction which Kirk endorsed.

HER HONOUR: I wonder whether it might be useful in the circumstances – because much of this material has been set out in your submissions – if we heard from Mr Willis and from Mr Solomon-Bridge and then let you deal with what is raised in reply.

MR KING: Of course, your Honour.

HER HONOUR: Is that suitable to you? I do not seek to stop you at all, Mr King, but I wonder whether that – much of this I have looked at as a consequence of your detailed submissions.

MR KING: Thank you, your Honour. Yes, we respectfully adopt what your Honour says.

HER HONOUR: Mr Willis.

MR WILLIS: Your Honour, jurisdiction first – power follows from it, is really the principle on which we stand and the matters which my learned friend, Mr King, has been taking you to which he has finally come to terms with in the reply are really cases where jurisdiction has clearly otherwise been established. Our submission is that the authorities are very clear that the Judiciary Act expands the powers that the Court exercises, but they are predicated upon the Court having jurisdiction, principally under section 75 of the Constitution, or otherwise if directly invested in the Court under legislation passed pursuant to section 76 of the Constitution.

We have set out our analysis of the way in which we say none of the defendants that have been brought before the Court fall within any of the categories found in section 75 of the Constitution. I will not labour that. I am happy to discuss with your Honour – assist your Honour in any way of any additional detail that may be required to satisfy your Honour on that score.

HER HONOUR: I think it would be useful, especially for Mr King, if we went through and identified or made clear what it is that are the essential elements of why it is you say each of the defendants is not a defendant that is subject to 75 and 76. There seem to be two main areas of dispute between you, putting aside what I will call the merits of the matter.

MR WILLIS: Indeed.

HER HONOUR: One is the question of jurisdiction.

MR WILLIS: Yes.

HER HONOUR: The second is the point you have just addressed about the interaction between the Judiciary Act and Constitution. So Mr King has heard your submission about that point. Let us deal with the question of jurisdiction in relation to each of the defendants.

MR WILLIS: All right.

HER HONOUR: As I understand it – I just want to make sure that I am clear about this – in relation to your client, the Commonwealth Bank, you say that consistent with the test set out by Justice Kitto in Inglis we have a public company - - -

MR WILLIS: That is right.

HER HONOUR: - - - registered under the Corporations Act 2001 (Cth), all shares listed and traded on the Australian Securities Exchange and its conversion, as I understand it from reading your submissions, from what I will call a non-public entity to a public corporation happened in April 1991.

MR WILLIS: It commenced in that – in fact, I think, 25 years ago, September – sorry, the legislation commenced at that time in April 1991.

HER HONOUR: It did. The legislation was passed earlier under the Commonwealth Banks Restructuring Act 1990.

MR WILLIS: That is right. The first offer of shares to the public, in fact, occurred 25 years ago this week.

HER HONOUR: Right, that is all very interesting. Let us just move on with that.

MR WILLIS: Indeed.

HER HONOUR: Then at what point did it become fully privatised?

MR WILLIS: Certainly by the third tranche of shares. I am instructed 1996.

HER HONOUR: Do we have evidence of that before the Court? It is fully privatised?

MR WILLIS: It is fully privatised.

HER HONOUR: Maybe your instructor and Mr Jackson can see whether there is some evidence before the Court about the full privatisation. So we will leave that to one side. So we have now a public company, registered under the Corporations Act, all shares traded on the Australian Securities Exchange.

MR WILLIS: Yes.

HER HONOUR: You have Commonwealth Banks Act 28 which gives it its general functions to carry out - - -

MR WILLIS: Yes, just to carry out - - -

HER HONOUR: - - - general banking business.

MR WILLIS: Banking business in the sense – and the contrast, perhaps, your Honour, which is not immediately apparent is compared to earlier Inglis era statutory provisions in the Commonwealth Bank Act which set out, in a sense, policy directives and objects which one could interpret that the Commonwealth Government, the Commonwealth of Australia are seeking to have carried out through the medium of the Commonwealth Bank.

HER HONOUR: Right.

MR WILLIS: So the contrast is as much not just that the fact that the section 28 gives it a conventional business direction, but that it - - -

HER HONOUR: But that does not prevent it from holding an authority under the Banking Act to carry on banking business.

MR WILLIS: Correct.

HER HONOUR: Then you have, as I understand, reading Ms Parker’s affidavit, independent board of directors elected by shareholders in the usual way.

MR WILLIS: That is right.

HER HONOUR: In excess of 819,000 shareholders.

MR WILLIS: Correct.

HER HONOUR: As I read the relevant interest, no shareholder has interest in 5 per cent or more of the total issued CBA shares.

MR WILLIS: That is right, and that is in relevant interests as calculated or determined under the Corporations Act which ultimately traces into control of voting power in the shares.

HER HONOUR: Right, and reading the very interesting and enlightening corporate constitution, as I did - - -

MR WILLIS: Your Honour - - -

HER HONOUR: I am not being rude, but one page might have been better than the whole thing but it does not provide for any direction or power to be exercised by the Commonwealth.

MR WILLIS: Exactly and, your Honour, the Court in the PAWA Case, Northern Territory Gas and the Power and Water Authority of the Northern Territory, in that case, when considering a similar question, passed a critical remark in the joint judgment that the Court had only been provided with extracts, which were the relevant extracts. I am sorry that your Honour has - - -

HER HONOUR: No, no, I am just being – it is an additional thing I had to read. Let us put it that way.

MR WILLIS: We are grateful – because in a sense it was submitted to prove a negative.

HER HONOUR: I understand that. The other matters that you rely upon, as I understand it – I just want to make sure that I have this list so Mr King has an ability to respond to them - - -

MR WILLIS: Yes.

HER HONOUR: Their profits are not paid into consolidated revenue but distributed by dividends in the usual way to shareholders at the discretion of the board.

MR WILLIS: Of the board, correct.

HER HONOUR: Then, can you deal with section 27H of the Commonwealth Banks Act which is the provision which you seem to place considerable reliance on.

MR WILLIS: We say that that is, in a sense – one might call it a belt and braces or an additional declaratory provision, but that provision really, in our submission, addresses any hint or suggestion that the Commonwealth Bank of Australia as it stands today can be directed or can be taken in law to be an authority of the Commonwealth, to be the Commonwealth of Australia, and it negates each of those. Subsection (2) declaring:

The Commonwealth Bank is to be taken:

(a) not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth –

that is of Commonwealth of Australia, and then subparagraph (b) is taken to be:

not to be a public authority or an instrumentality or agency of the Crown -

Now, in a sense this statute has taken any of the key words that in the jurisprudence on bodies which are the Commonwealth for constitutional purposes, within a shield of the Crown for other purposes - - -

HER HONOUR: It seems to have picked up the language from Inglis.

MR WILLIS: Indeed, and directed itself to – as in our submission – making as clear as it could be possible to do the intention of the Parliament that this body no longer is the Commonwealth or capable of suing or suing or acting on behalf of the Commonwealth and thereby taking it out of the reach or out of the scope of section 75(iii) of the Constitution. We say that that is properly done when - - -

HER HONOUR: So, as I understand - have I accurately captured the very long submission and materials that went to that issue on that question of the first defendant?

MR WILLIS: Yes, you have, your Honour.

HER HONOUR: Is there anything that I have overlooked?

MR WILLIS: No, your Honour. There is one subsidiary matter, your Honour, which arises from something which is put inferentially in the plaintiff’s submissions, perhaps as a fall-back, and which is that perhaps this Bank because it holds a licence issued by a Commonwealth authority – that is, it holds an Australian Financial Services licence or licences issued under the Corporations Act – there is a hint in the plaintiff’s materials that that alone, or in combination with everything else that they rely on, might somehow ensure or make the Commonwealth Bank an officer of the Commonwealth or – which is, of course, another section of section 75 of the Constitution – or the Commonwealth itself. It is put a little bit both ways, it is a bit hard to work out.

That proposition of my learned friends appears also to sweep in or attempt to bring in the Financial Ombudsman Service, which is another entity, and perhaps to suggest that it also is the Commonwealth or an officer of the Commonwealth because it holds an Australian Financial Services licence.

Now, with all that preface our submission is simply that it cannot be the case that merely because a body is licenced under a law of the Commonwealth, when the body is otherwise a private sector actor simply going about its own business and its own interest, the mere fact that it holds a licence for some activity by the Commonwealth – that is, granted under Commonwealth law – does not turn that body into the Commonwealth of Australia or make it able to be sued on behalf of the Commonwealth of Australia, nor make it the separate subsection of section 75, make it an officer of the Commonwealth.

HER HONOUR: So that deals with 75(iii) jurisdiction in relation to all of the defendants?

MR WILLIS: It does. It is argued most strongly by the plaintiffs - on the Commonwealth Bank – it cannot be the case that, so far as the second defendant is concerned, who is an employee of that Bank, that he stands in a different position than his employer. So I simply submit that there is no basis for saying that an individual Bank employee is the Commonwealth or sued on behalf of the Commonwealth.

HER HONOUR: All right. Then we have dealt indirectly with 75(v), the officer of the Commonwealth point for the relief.

MR WILLIS: Yes. The most important aspect of that, your Honour – and the learning on what is an officer is perhaps a hundred years old, tracing back to dictum or observations of his Honour Justice Isaacs – but the consistent – and it says you have to be appointed to an office – a corporation is not an officer of the Commonwealth on the authorities. The importance of section 75(v) in this particular action is really in its attempted application to the Supreme Court of Tasmania and in that - - -

HER HONOUR: Your submission is they are not officers of the Commonwealth?

MR WILLIS: That is correct, your Honour. The decision that Mr King took you to, the decision of Justice Kirby in the Re Owen decision of 2001, unreported – really is - my learned friend has overlooked that his Honour Justice Kirby makes very clear – starting at paragraph [28] of that case – that Justice Owen as a justice of the Supreme Court of a State is not and cannot be an officer of the Commonwealth unless – the learned Judge said – exceptionally he held a separate and distinct commission, or office, under the Commonwealth. But by virtue of being a judge of the State Supreme Court, he was not amenable to writs under section 75(v) of the Constitution.

That observation of his Honour in that case is entirely consonant with the stream of authority, and we have given your Honour references in our submissions to Chief Justice Mason’s comment in the Bird v NSW Civil Liberties Case, and there are many other cases to the same effect. I do not labour that point. But my submission is that none of the defendants is or is capable of being treated as an officer of the Commonwealth for the purposes of section 75(v).

That then brings us to paragraph (iv) of section 75 which I have called the diversity jurisdiction but which more properly in this case is a matter between residents of different States. That is attempted to be invoked by the plaintiff’s matter on the basis that Ms Burge is a resident of Tasmania and principally it appears that it is put, first, that the Commonwealth Bank is a resident of perhaps the ACT where it is deemed to be registered under the Corporations Act or maybe it is put because it was operating at one time through an officer in Melbourne and another time through an officer in Sydney who was dealing with Ms Burge, that maybe it is being put that it is resident in one of those States. Then it is put equally, so far as the fourth defendant is concerned, that because they are incorporated or taken to be registered in Victoria, that they are a resident of Victoria.

Now, the first point to make is that, for the purposes of this diversity jurisdiction, a corporation is not a resident of a State. The history of that is recited in my submissions. It has twice been put to a Full Court of this Court over the hundred years or so and twice the Full Court has declined to reopen that decision. It is traceable back to T & G, the Australasian Temperance and General Mutual Life Assurance Society v Howe [1922] HCA 50; 31 CLR 290, and within a few years in Cox v Journeaux in 1934, and again in quite an important case, Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22. The relevant passage is at pages 23 and 24 but also dealt with in the substantive judgments. That is a case which is helpful not only on the fact that a corporation is not a resident for these purposes.

The further point is that if a corporation is one of the parties to the action, then the action falls outside section 75(iv). The course of authority really reduces to this proposition, that for an action to be properly constituted and within the original jurisdiction under section 75(iv) of the Constitution, it must be between only residents of State A and residents within the constitutional sense of State B - possibly B, another resident of State C or whatever. It can only have as parties to the action individuals who are residents of different States. As soon as you have residents of the same State on each side of the ledger, or as soon as you have a corporation as plaintiff or defendant, the action does not fall within section 75(iv) of the Constitution.

That is brought together by her Honour Justice Gaudron in the case of Rochford v Dayes which was referred to in paragraph 14 of our submissions and is one of the cases which we actually principally rely on, and her Honour there touches on and draws attention to the preceding stream of authority that resolves or brings together – that feeds that proposition that I have just put to your Honour. The only other thing – and, your Honour, so to summarise, we say section 75(iii) is not engaged - - -

HER HONOUR: Yes. Well, I think we have dealt with all of the section 75 matters.

MR WILLIS: We have.

HER HONOUR: We have dealt indirectly with section 76 in the context of the Judiciary Act.

MR WILLIS: Yes. Now, can I just - with respect to the Judiciary Act, your Honour – to the extent my learned friend was drawing attention or relying on section 31 of the Judiciary Act, patently the opening words explain it all, in my submission:

The High Court in the exercise of its original jurisdiction may –

and then so on.

HER HONOUR: Well, it follows on from section 30 I think is the way it is structured.

MR WILLIS: Indeed.

HER HONOUR: So Mr King relied upon 31 - - -

MR WILLIS: Yes.

HER HONOUR: - - - 33(1)(a) and (e) - - -

MR WILLIS: That is right.

HER HONOUR: - - - and then back to 30(a). If you start at 30(a), you have:

In addition to the matter in which original jurisdiction is conferred - - -

MR WILLIS:

(a) in all matters arising under the Constitution –

I am sorry, your Honour.

HER HONOUR: So that is the first addition of conferral of original jurisdiction.

MR WILLIS: We accept that, but we simply say that there is no question under the Constitution or involving its interpretation which is - - -

HER HONOUR: I understand. Then 31, you have made your point that it requires the exercise - - -

MR WILLIS: Yes.

HER HONOUR: - - - and then the other matter relied upon was 33(1)(a).

MR WILLIS: Yes, and the introduction to 33(1):

The High Court may make orders or direct the issue of writs –

Now, as I say, this is enlarging power, it is not itself a separate conferral of jurisdiction. I have not brought the authorities, but your Honour will find from – perhaps conveniently the course of authorities is summarised in the case Superintendent of Training Centre at Goulburn – I apprehend that is a gaol – Ex parte Pelle (1983) 57 ALJR 679 and 48 ALR 225. That deals with both paragraph - section 33(1)(a) and (c).

HER HONOUR: I think it was (a) and (e) that Mr King relied upon.

MR WILLIS: Yes, (a) and (e). I am sorry, it is (e); I beg your pardon - and make the point that the writs can only be issued pursuant to those sections, those two paragraphs, as an incident to the exercise of the original or appellate jurisdiction. Patently, there is no appellate jurisdiction today invoked and the need as confirmed by that decision to have original jurisdiction takes us back to the foundational point. So section 75 or section 30(a) are the only sources, relevantly for today, of potential jurisdiction and we have made our submission that they are not satisfied.

HER HONOUR: Right. Do you wish to add anything to either your written submissions on the other matters, that is, on the assumptions that I am against you on the jurisdiction question?

MR WILLIS: There are layers and layers of detail that could be put before your Honour but we are content to submit that what we have here - particularly the compelling point we would say that if we had to move beyond jurisdiction and to consider these other matters is that whether as a matter of substance or as a matter of discretion this is not an appropriate case when there were ready avenues of appeal within – and there are judgments of the State Supreme Court regularly entered into on the basis of consent and negotiations by a plaintiff who had legal representation at the time of each of the separate agreements which she entered into to compromise the matters or give rise to consent judgments, those consent judgments stand.

They are unappealed, unstayed within the regular rules and procedures of the State Supreme Court; there is no basis, we would say, or reason why this Court should if it had the jurisdiction exercise it to stay it when there were perfectly appropriate available other methods of resolution which were available to the plaintiff. I will not say anything further in that respect, your Honour, but if there is something that falls from Mr King I will certainly seek to reply if that would assist your Honour.

HER HONOUR: Thank you.

MR WILLIS: The only other matter, your Honour, concerns the opening question that your Honour asked as to whether the undertaking as to damages could be made good.

HER HONOUR: You take issue with that; I see that in your submissions.

MR WILLIS: Yes.

HER HONOUR: Yes, I understand.

MR WILLIS: Thank you, your Honour.

HER HONOUR: Mr Solomon-Bridge, do you want to add anything to what Mr Willis has said?

MR SOLOMON-BRIDGE: Only a couple of points, your Honour.

HER HONOUR: Yes.

MR SOLOMON-BRIDGE: Just to note that the summons itself does not actually affect FOS immediately other than - - -

HER HONOUR: I know, that is why I am asking.

MR SOLOMON-BRIDGE: Yes, but - - -

HER HONOUR: So what are these submissions directed to?

MR SOLOMON-BRIDGE: I wanted to make submissions on 75(iii) and 75(v) and its application to FOS. I respectfully adopt Mr Willis’ submissions in that regard. The other point which has arisen this morning, even if there were power or jurisdiction - - -

HER HONOUR: They are different.

MR SOLOMON-BRIDGE: Yes. If there were jurisdiction out of the Judiciary Act, as Mr King submitted, the final orders sought against my client is a writ of mandamus and your Honour may be familiar with a case called Mickovski in the Victorian Court of Appeal which relevantly held that my client is not amenable to judicial review pursuant to.....principles or otherwise. So whether that is ultimately a power or jurisdiction matter, depending on which way – whether your Honour accepts Mr King’s submissions, ultimately FOS would fall without that asserted jurisdiction in any event.

HER HONOUR: So just so I am clear, I understood from Mr Willis that he seeks orders which include not only dismissal of the summons which is not directed to you but also dismissal of the application for an order to show cause?

MR SOLOMON-BRIDGE: Yes.

HER HONOUR: So is this directed to the second of those matters?

MR SOLOMON-BRIDGE: It is, although because the issue of the application of 75(iii) and 75(v) arises on the summons, albeit between the first and second defendant and the plaintiff, we wish to be heard on that point simply for that reason. The only other issue is if the substantive application is not dismissed we would wish to be heard on the further orders as to remitter et cetera and those directions which were in the summons and which obviously affect my client.

HER HONOUR: I understand.

MR SOLOMON-BRIDGE: Yes. The Mickovski Case to which I referred a moment ago is [2012] VSCA 185; (2012) 36 VR 456. If it would assist your Honour - and cognisant of the fact that I did not file any written submissions - - -

HER HONOUR: No.

MR SOLOMON-BRIDGE: - - - I can take your Honour through the authority.

HER HONOUR: Well, that is all right.

MR SOLOMON-BRIDGE: No. But the short point is – and if I might just cite from a joint or unanimous judgment of that court - - -

HER HONOUR: I do not know that you need to read it out. You should give me the paragraph numbers and you should give it to Mr King because you are supposed to file them so he was on notice about these things. What paragraph numbers do you want?

MR SOLOMON-BRIDGE: It is page 466 of the report and it is paragraph 32. I have a bundle for my friend which I can hand to him now.

HER HONOUR: Well, he does not need a bundle. He needs what you are relying upon.

MR SOLOMON-BRIDGE: Yes.

HER HONOUR: Marked up for him. Your instructor can do it. Not the bundle, just the decision marked up.

MR SOLOMON-BRIDGE: While that is happening I must say that we had not apprehended these points to have arisen and that is why we did not file the submission.

HER HONOUR: I accept that, but you are now relying on them and you have to give notice.

MR SOLOMON-BRIDGE: Yes. So I rely upon that paragraph, paragraph 32. I also rely upon paragraph 33 which is on the opposing page, 467 of the report. Insofar as there are useful descriptions of FOS and they are generally to the effect that it is a private entity and not subject to - - -

HER HONOUR: I do not have any evidence of any of that, do I?

MR SOLOMON-BRIDGE: You have the company extract which is an exhibit to the plaintiff’s instructor’s affidavit, I believe it is number 2 - - -

HER HONOUR: Yes.

MR SOLOMON-BRIDGE: - - - and that shows that it is a public company limited by guarantee and shows that the secretaries and directors and such are not - on their face, are not associated with the Commonwealth. And inasmuch as decisions of other courts have held on evidence before them, the nature of FOS - - -

HER HONOUR: They do not bind me though, do they, on this application? I do not think you can rely upon those. You cannot get through the back door what should have come through the front door.

MR SOLOMON-BRIDGE: No, if the Court pleases. So, in that respect, I only refer to another case of the Victorian Court of Appeal called Cromwell Property Securities Limited v Financial Ombudsman Service Limited [2014] VSCA 179; (2014) 288 FLR 374.

HER HONOUR: What is that authority for, what proposition?

MR SOLOMON-BRIDGE: It stands for the proposition that there is an implied contractual obligation for FOS to exercise its powers reasonably and the standard is Wednesbury unreasonableness.

HER HONOUR: What does this have to do with this?

MR SOLOMON-BRIDGE: Well, I just wish to draw attention to a particular passage of her Honour Justice Tate describing the nature of FOS and to rely upon that.

HER HONOUR: Two things: I am not bound by those decisions and I do not know what was before them, so what I have is before me. If there are propositions of law that arise out of that decision then you should give them to me, but I am not being bound by the way Justice Tate describes FOS.

MR SOLOMON-BRIDGE: Yes.

HER HONOUR: I have an extract that I have read which sets out its corporate arrangement and that is what I would act on. I am not going to act on other decisions of lower courts.

MR SOLOMON-BRIDGE: Yes, I appreciate that, if the Court pleases. Can I just then correct an assertion made by Mr Willis? No criticism. I think he described my client as having a financial services licence. Although I do not have evidence to hand I can inform your Honour that I am instructed that it is, strictly speaking, approval under ASIC; it is section 912A of the Corporations Act and regulation 7.6.02 of the Corporations Regulations 2001. The financial services licence, of course, is to the Bank and we act or my client acts as the external dispute resolution scheme. That was the only factual matter.

The only other submission then that I wish to make on the evidence that is before the Court relates to a submission that was raised by Mr Willis, although I am not sure if it was in the written submissions, which was to the effect that a body corporate does not come within the definition of officer and the case – it seems to me that there is a strong line of single justice authority on that point – the case is Australasian College of Cosmetic Surgery Limited v Australian Medical Council Limited (2015) 326 ALR 521 at 528, paragraph [42] and there is a useful collection of the relevant single justice authorities to that effect. I am sorry, I am told it is in the outline so I apologise – rather, I am told it is in the authorised reports. My apologies for not having that reference. They are the only submissions to be made at the moment, if the Court pleases.

HER HONOUR: Thank you, Mr Solomon-Bridge. Mr King.

MR KING: Your Honour, before I reply, can I respectfully draw attention to my learned friends to something we have put at paragraph 2 of our submissions in reply, relying in addition on section 44 of the Judiciary Act which I did not mention earlier and should have. That is to say, your Honour’s power to remit – and we say that the section 31 and section 16 powers for interim relief may be granted in aid of that power as well. I do not know if my friends wish to comment on that before I reply.

HER HONOUR: I think the answer that they make is that one only has the right to use that power once we have jurisdiction at the outset. So I think their complaint, as I said to you before, is twofold. One is they say going through the various heads of power that they have considered that there is no jurisdiction within the original jurisdiction of this Court to grant or entertain the application and second, that that picks up as well was the secondary point the argument about the Judiciary Act.

MR KING: Yes. Can I just deal, if I may, your Honour, with what has fallen from my friends?

HER HONOUR: Yes, please.

MR KING: As I heard Mr Willis, he observed that the Judiciary Act powers principally derive from sections 75 and 76. I am not sure if that is a concession in my favour about the earlier submission I put, but we do respectfully draw attention, your Honour, to section 76(ii) so far as the making of the Judiciary Act itself is concerned and say that by operation of that Act, that is, the Judiciary Act, the power of the Parliament to make which is obviously provided for by, we would say, section 76 - - -

HER HONOUR: Sorry, just so I am clear about this, is your contention that the Judiciary Act 76(ii) – I withdraw that – 76(ii) of the Constitution is the source of power for the making of the Judiciary Act and what follows from that?

MR KING: And that the Judiciary Act itself is a source of power for the jurisdiction of the Court, supplemental to and independent of the exclusive jurisdiction, that is, the jurisdiction which cannot be excluded.

HER HONOUR: The reason why I took you to it before was to make clear that I am a bit worried about it because if you go to section 30 which is entitled “Original jurisdiction of the High Court” you have it conferred, one is:

(a) in all matters arising under the Constitution or involving . . .

(c) in trials of indictable offences –

We are not concerned with (c) for the moment. So we have no conferral which is in addition there along the lines you are putting to me, then in 31 we have:

The High Court in the exercise of its original jurisdiction –

Same in 32, so we have nothing additional so far, I do not think. Then 33 we have what it can do once it has original jurisdiction. This is my problem. So I think you are driven back to 75 and 76, are you not?

MR KING: We respectfully submit that the cases to which I refer in the authorities that I have identified do support the proposition I have put. That is important because there was a vexed argument for some time as to whether or not the Court had power to issue certiorari when it was not mentioned anywhere in the Constitution and their Honours held in a number of the cases, some of which to which I have referred, that independently of section 75(v) there was a power in the Court under section 31.

In the case of - that I mentioned that Justice Kirby decided of Re Owen his Honour referred to both section 30(a) and 33 as sources of the issues of writ, as indeed we respectfully submit did Justices Gummow and Gaudron - Gaudron and Gummow in that order, I apologise – in Re Aala.

But we submit respectfully, your Honour, that the Court under those provisions, including section 16 which confers power on a single Justice, may be issued as a court of superior jurisdiction in aid of its overall role in the supervisory jurisdiction when I do not repeat what I have had to say about that, and we think that section 44 is part of that jurisdiction, respectfully.

Then as to the more specifics that my friend addressed regarding the Commonwealth Bank, your Honour asked him is there something he may have overlooked, and we submit he did overlook this issue, namely, the operation of section 25B of the Acts Interpretation Act. That provision is that:

(1) Where an Act alters the name of a body . . . or alters the name of an office –

and in this case it is conceded on my friend’s own submissions that it is the same – before the Court is the very same entity that Justice Walsh dealt with and granted an injunction of the sort we are asking for in 1959 – what the Act provides is that:

(1) Where an Act alters the name of a body –

Then unless the contrary intention appears:

(a) the body or office continues in existence under the new name so that its identity is not affected –

and then (b):

in any pleading in, or . . . any legal or other proceedings . . . a reference to the body . . . under the former name shall . . . be construed as a reference to the body . . . under the new name.

In other words, what the Parliament has done, contrary to my friend’s submission, is to ensure that the learning of the Court in Inglis - - -

HER HONOUR: What section was that?

MR KING: Section 25B(1)(b).

HER HONOUR: I see. Thank you. I thought you said (d).

MR KING: I apologise, your Honour.

HER HONOUR: It is all right.

MR KING: The interesting thing about the provision, your Honour, is it refers actually to “pleadings” and “legal or other proceedings”, so it shall be construed as a reference to the body under the new name. Now, we have also put at paragraphs 2 and 3 of our submissions in-chief that the element of control remains - your Honour asked my friend about full privatisation, there is simply no evidence of that. The respondents have not led any evidence of privatisation.

It is true that there were tranches sold at one stage for the setting up of the natural heritage conservation scheme - which I had some personal involvement with – but there is no evidence before the Court as to privatisation or when it happened. All that has been put before your Honour is the Constitution.

In answer to that, we say section 25B treats what was the entity before this Court in Inglis as the same, or arguably the same and we say that this is not the occasion for a mini trial on the point but simply a question as to whether it is an issue, a serious question, and we say that it is.

Then as to the issue of diversity jurisdiction, interestingly enough, in the discussion by Patrick Keyzer in his book Principles of Constitutional Law Fourth Edition 2013 at page 426 dealing with the question of – I apologise, your Honour, I have given your Honour the wrong reference. I am sorry, I withdraw that.

In the comments by Ms Mitchelmore in the practice book to the Judiciary Act and the Constitution, at 1695.50 and, in particular, 1695.75, reference is made to Rochford v Dayes upon which my friend relies. The proposition is that the presence on one side of the record of a corporation will prevent the matter being a matter between residents of different States.

Now, we respectfully submit that Rochford v Dayes can be distinguished in circumstances where here there is a genuine dispute involving Mr Ralston, the second respondent to this application. He is a resident of New South Wales whereas Ms Burge is a resident of Tasmania, albeit of no fixed abode. He is directly implicated in the orders sought. It is a genuine case against him. It is not a manufactured case as suggested in some of the submissions of the respondents, and the reason is - - -

HER HONOUR: Can I test that proposition with you?

MR KING: Yes.

HER HONOUR: So, as you know, the mantra – and I do not use that in a pejorative sense – is that an entity whether by itself, its servants or agents or howsoever otherwise is restrained from doing X, would that not as a matter of language and order – because you know how important orders are – pick up and restrain the second defendant regardless of whether or not he was a party to the proceeding?

MR KING: I think the answer to that would have to be yes, but can I say this? We have pleaded – and it is not disputed in the material provided to us – that Mr Ralston has specific public duties specified under the National Credit Code as a credit representative of the respondent with particular duties in relation to hardship notices, and the evidence of Ms Burge is that she served personally upon Mr Ralston the hardship notices - - -

HER HONOUR: Yes.

MR KING: - - - and that her case is that he has, in effect, put an end to the impoverished state that the FOS has said that she has fallen into as a result of the Bank’s actions because when she tried to sell one of her properties so that she could retain her income earning property the Bank refused and that was Mr Ralston. When she sought to refinance this year because she had the equity to refinance through Aussie Home Loans and then through Liberty Finance, the Bank interfered in that refinancing arrangement to its own advantage because it made $50,000 out of the deed of settlement falling over.

Now, your Honour, we respectfully submit that – and that was Mr Ralston, and Mr Ralston signed the warehouse certificate as soon as Ms Burge was forcibly removed from her home as a result of a possession order – that is, not for sale order – it was Mr Ralston who signed the warehouse certificate to have all of her personal belongings taken to Atkins warehouse in Launceston. So, he has taken a personal role, both in his public office as a credit representative, identified under the National Credit Code, and as a servant and agent of the Bank. So that is the reason that he has been joined. We seek in paragraph 6 - - -

HER HONOUR: As an employee of the Bank?

MR KING: No, as a credit representative.

HER HONOUR: As an employee of the Bank?

MR KING: And he is also an employee of the Bank. So paragraphs 6 and 10 seek specific relief against him in that regard. So we say that – and there is comment, although not in that passage of Ms Mitchelmore but in another passage which I read and I am afraid I cannot draw it to your Honour’s attention immediately, where commentators have said that the issue of diversity of jurisdiction should not be limited, it is not limited by anything in section 75(iv) merely because there might be other parties on the record who are not individuals, so that is an issue we say.

As for FOS, my friend, Mr Solomon, has rightly accepted in the light of our detailed written submissions on the status of FOS in paragraph 6, that it is an authorised person under the ASIC and the Corporations Act, it is regularly reviewed by ASIC under regulation 7602, its conduct as a public external resolution service in the finance industry is governed by ASIC and its regulatory codes and that was recognised by Justice Macauley in the Supreme Court of Victoria in the recent decision of Goldie Marketing which we have referred to at note 5 of our written submission at point 2 where an interim injunction was granted by his Honour to protect resolution by FOS.

We say that even assuming that FOS is a domestic tribunal, nonetheless the Court has power to issue mandamus to such a tribunal if, as here, it failed to exercise its jurisdiction to the hurt of Ms Burge at the instance of the first defendant.

Now, your Honour, the only other point that I would raise regarding what fell from Mr Willis does concern the passage which I was about to take your Honour to in Patrick Keyzer’s book where this concerns the status of a justice or magistrate or other judicial officer of the State purporting to exercise federal jurisdiction.

Now, our complaint about the Supreme Court of Tasmania is that it denied the exercise of federal jurisdiction, which would have been the way in which these credit contracts and mortgages could have been set aside, but that was done in two different ways. But leaving that issue to one side – and we have set out the details of that in our submissions – what Keyzer says at page 426, paragraphs 20, 21 is that the authority of Murray that a surprising decision – which he refers to it as – that a State judge vested with federal jurisdiction is not an officer of the Commonwealth, may need to be reviewed and may be in doubt as a result of the decision of this Court in Kable. Of course, Kable has been referred to by my friends.

So we say that there are arguments the other way in relation to both the status of the two judicial officers involved in this case, Associate Justice Holt and Justice Pearce, as to whether or not in failing to exercise federal jurisdiction or in purporting to exercise it but not doing so correctly as asked of them – not a merits point but a jurisdictional point – then they are subject to jurisdiction as an officer of the Commonwealth. The case of Murray [1916] HCA 58; 22 CLR 437 is distinguishable or in doubt since the decision of this Court in Kable. Your Honour, unless there is any other issue I can assist the Court with?

HER HONOUR: Thank you very much. Mr Willis, is there anything else you want to add?

MR WILLIS: Your Honour, merely with respect to the contention that Mr Ralston, the second defendant, has some separate duty. Section 78 of the National Consumer Credit Protection Act provides that all remedies against – that may be available against a credit representative are essentially made against the employer or the chief licensee for whom they act.

There are various provisions in the National Consumer Credit Protection Act which deal with the functions of those people. I will not detain your Honour with them - they are essentially responsible for dealing with credit applicants and providing them with certain regulated materials. We would say that it is not – it does not elevate that person beyond what I made submissions to previously.

HER HONOUR: Thank you. Mr Solomon-Bridge, nothing further?

MR SOLOMON-BRIDGE: No, your Honour.

HER HONOUR: The Court will adjourn to consider its decision and will deliver judgment at 12 noon.

UPON RESUMING AT 11.59 AM:

HER HONOUR: On 6 September 2016, Susan Burge, the plaintiff, filed an application for an order to show cause in the original jurisdiction of this Court. The application seeks declaratory relief, writs in the nature of certiorari, prohibition, mandamus (or a mandatory injunction), injunctions, damages (and/or compensation). By a summons also filed on 6 September 2016, the plaintiff sought an interlocutory injunction to restrain the first defendant, the Commonwealth Bank of Australia (“the CBA”), and the second defendant, Robert Ralston, an employee of the CBA, from selling or taking any steps to sell or otherwise dispose of 127 Elphin Road, Newstead, Certificate of Title Volume 91917 Folio 16-127 (“the Elphin Road Property”), as well as the plaintiff’s personal property “being 6 container loads of personal effects, furniture and other property presently located at Atkins warehouse Launceston”. The Elphin Road Property is listed to be auctioned on 23 September 2016. In the alternative, the summons seeks a stay of proceeding No 256 of 2015 in the Supreme Court of Tasmania, to which the plaintiff and the CBA are parties, pending further order of this Court.

The application is opposed by the CBA and the second defendant. The CBA and the second defendant submitted that the application for an order to show cause should be dismissed because this Court does not have the requisite jurisdiction.

There are two other named defendants - the Supreme Court of Tasmania, the Justices and the Associate Justice thereof, identified as the “Third Defendants”, and the Financial Ombudsman Service Ltd (“FOSL”), identified as the fourth defendant. FOSL filed an appearance and the “Third Defendants” filed a submitting appearance. FOSL did not file any written submissions but in oral argument FOSL substantially adopted the CBA and second defendant’s submissions.

I then turn to the facts.

Before turning to the question of jurisdiction, it is appropriate to address some of the long and complicated history of this matter. This summary is necessarily incomplete. The facts and matters relied upon by the plaintiff were set out in an affidavit sworn by her in support of the interlocutory relief. Many of those facts and matters were disputed by the CBA.

What appears not to be in dispute is that the CBA took possession of the Elphin Road Property in February 2016. At that time, the plaintiff and her daughter were living at that property. The plaintiff had unsuccessfully applied to the Supreme Court of Tasmania for an injunction to restrain the CBA taking possession of the Elphin Road Property. It appears from the plaintiff’s affidavit that at least some of the complaints raised in this Court were considered by Acting Judge Holt of the Supreme Court of Tasmania in rejecting that application. The decision of the Supreme Court of Tasmania was not appealed, stayed or varied.

In this Court, the plaintiff maintains her contention that her exclusion from the Elphin Road Property was wrong and seeks to set aside the credit arrangements with the CBA under which she had defaulted and which were relied upon by the CBA in its action for possession. The plaintiff relies upon a number of events which she contends demonstrate that the credit arrangements should be set aside and that she should be restored to the position she was in before she entered into the credit arrangements with the CBA.

It is against that background that the question of jurisdiction is to be considered.

The basis of the application for an order to show cause was not specified in the application. On 13 September 2016, the plaintiff filed a Notice of Constitutional Matter pursuant to section 78B of the Judiciary Act 1903 (Cth) (“the section 78B notice”). The section 78B notice contended that the following constitutional issues arose:

First whether writs of certiorari, mandamus or prohibition should be issued in connection with orders made by the Supreme Court of Tasmania on 22 June 2015 and in February 2016 because the Supreme Court of Tasmania failed to properly exercise its jurisdiction under the Land Titles Act 1980 (Tas) or the federal jurisdiction conferred on it by the Judiciary Act 1903 (Cth);

Second whether the credit arrangements between the plaintiff and the CBA were void for unconscionable conduct or breach of provisions of various statutes;

Third whether an Order of the Supreme Court of Tasmania was void because of a breach of an agreement between the plaintiff and the CBA;

Fourth whether the sale by the CBA of another of the plaintiff’s properties in 2013 was contrary to provisions of various statutes or equity, or a breach of contract;

Fifth whether the original jurisdiction of the Court is engaged under s 75(iii) or (iv), or section 76(i) or (ii) of the Constitution; and

Sixth whether FOSL failed to exercise its powers as mediator of financial disputes between the plaintiff and the CBA.

Purported issues 2, 3, 4 and 6 are plainly not constitutional issues and do not enliven the requirement that notice be given under section 78B. Issues 1 and 5 are misconceived for the reasons that I will now turn to.

It is necessary to consider section 75(iii), 75(iv) and 75(v) of the Constitution in turn. I will then deal with section 76(i) and (ii) together and, finally, I will turn to consider the conferral of certain powers on this Court under the Judiciary Act 1903 (Cth).

Can I deal first with section 75(iii)?

Mr King, plaintiff’s counsel, submitted that the Court’s original jurisdiction was invoked under section 75(iii) of the Constitution on the basis that the CBA was “encompassed” by the phrase “the Commonwealth”. He filed detailed written submissions directed to this issue. It is necessary to set them out:

“[The CBA] without the need to use the word ‘Limited’ in its name is taken to be a corporation registered with ASIC under sections 27C(5)(a), 27D and 27G of Commonwealth Banks Act 1959, and the holder of a credit licence under the National Credit Code and the National Consumer Credit Protection Act 2009 Act s 35, and an Australian Financial Service Licence [‘AFSL’] under Corporations Act 2001, ASIC Act and Banking Act 1959. It is, by operation of Acts Interpretation Act 1901 section 25B(1)(a) and 2(b) notwithstanding section 27H of the Banks Act, the same corporation which although conducting banking for profit was sued and recognized as the Commonwealth or as acting on behalf of the Commonwealth in [the High Court] in Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; [1969] 119 CLR 334 at 336 and Maguire v Simpson [1977] HCA 63; [1977] 139 CLR 362 at 368; and, part of which was split by the Parliament into the Reserve Bank of Australia.

Mr King’s submissions continued:

The Commonwealth still retains a significant measure of control not only as forming and maintain the [CBA] under the 1959 Banks Act, but as a continuing shareholder via inter alia the Future Fund and Comsuper and through ASIC’s direct oversight under Regulatory Guides [especially RG 139, 205 and 209] issued under the 2009 Act and for the purposes of the specific guarantee in section 117 of the Banks Act. The Commonwealth exercises control through the Reserve Bank Basel III Rules of the Bank’s equity holdings for the purposes of that Treaty to which Australia is a party, and also under the public guarantees of its liquidity eg during the GFC. The Plaintiff contends that the [CBA] is encompassed by the large definition of ‘the Commonwealth’ in Constitution section 75(iii): State Bank of NSW v Commonwealth Savings Bank [1986] HCA 62; [1986] 161 CLR 639 at 648; ASIC v Edensor Nominees Pty Ltd [2001] 204 CLR 559 at [42]; Bank of NSW v Commonwealth [1948] HCA 7; [1948] 76 CLR 1 at 275-6, 321-2, 358 and 363-367.”

In my view the application for an order to show cause fails at the first hurdle. The Court does not have jurisdiction to consider the issues raised by either of the substantive application or the interlocutory application.

The CBA is not “the Commonwealth” for the purposes of section 75(iii) of the Constitution or sued on its behalf. That statement requires some explanation.

The CBA is a public company registered under the Corporations Act 2001 (Cth). It is not an agency or instrumentality of the Commonwealth: compare Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, to which I referred earlier, especially at page 580 to 582, at paragraphs 39 to 42; [2001] HCA 1.

None of the decisions of this Court referred to by Mr King support the contrary conclusion. None of those decisions considered the CBA. They considered other entities established and operating under different statutory provisions. As Justice Kitto stated in Inglis v Commonwealth Trading Bank of Australia [1969] HCA 44; (1969) 119 CLR 334 at 337 to 338; [1969] HCA 44, in determining whether “the Commonwealth” is before the Court, the decisive question is not whether the activities and functions of the entity are governmental in character but what intention appears from the provisions relating to the entity in the relevant statute. As his Honour said:

“[I]s it, on the one hand, an intention that the Commonwealth shall operate in a particular field through a corporation created for the purpose; or is it, on the other hand, an intention to put into the field a corporation to perform its functions independently of the Commonwealth, that is to say otherwise than as a Commonwealth instrument, so that the concept of a Commonwealth activity cannot realistically be applied to that which the corporation does?”

The CBA is in the second category. To make good that proposition, it is necessary to look to the applicable statutes – the Commonwealth Banks Act 1959 (Cth) and the Banking Act 1959 (Cth) as well as some of the history of the CBA.

First, the CBA is a public company registered under the Corporations Act 2001 (Cth) with all of its shares listed and traded on the Australian Securities Exchange. The Commonwealth Banks Restructuring Act 1990 (Cth) converted the CBA from a statutory authority to a public company with conventional share capital and part-Government ownership. On 17 April 1991, the CBA became a public company with a share capital governed by the Corporations Law but subject to certain overriding provisions of the Commonwealth Banks Act 1959 (Cth): in particular, see section 22 of the Commonwealth Banks Restructuring Act 1990 (Cth) and Note (c)(3)(d) of the Notes to the Commonwealth Banks Act 1959 (Cth).

Second, the CBA’s general functions are set out in section 28(1) of the Commonwealth Banks Act 1959 (Cth) – to carry on a “general banking business”. That does not prevent the CBA from possessing, as it does, an authority under the Banking Act 1959 (Cth) to carry on a banking business: see section 28(3) of the Commonwealth Banks Act 1959 (Cth).

Third, the CBA carries out those functions independently. The CBA has, consistent with the requirements of the Corporations Act 2001 (Cth) and other laws, an independent board of directors elected by the shareholders in the usual way. The evidence disclosed it has in excess of 819,000 shareholders with no shareholder having a relevant interest in 5 per cent or more of the CBA’s shares. None of the matters referred to by Mr King, including regulatory oversight by the Australian Securities and Investments Commission or the Reserve Bank of Australia, convert the CBA, a public company registered under the Corporations Act 2001 (Cth), into “the Commonwealth”. No provision of its Corporate Constitution provides for any direction or power by the Commonwealth.

Fourth, the CBA’s profits are not paid into consolidated revenue –they are in the usual manner distributed to shareholders by way of dividends.

Fifth, section 27H of the Commonwealth Banks Act 1959 (Cth), entitled “Commonwealth Bank is not a Commonwealth authority or Commonwealth company etc” expressly provides that:

“(1) This section has effect for the purposes of the laws of the Commonwealth, a State or a Territory. However, the effect of this section is subject to any express provision in the law concerned that refers specifically to the [CBA].

(2) The [CBA] is to be taken:

(a) not to have been incorporated or established for a public purpose or for a purpose of the Commonwealth; and

(b) not to be a public authority or an instrumentality or agency of the Crown; and

(c) without limiting paragraphs (a) and (b), not to be a public authority under the Commonwealth for the purposes of the Crimes Act 1914.

(3) The Commonwealth is to be taken:

(a) not to have a controlling interest or substantial interest in the [CBA]; and

(b) not to be in a position to control the [CBA].”

This provision, consistent with the approach in Inglis, puts beyond doubt that the relevant legislative intention is that the CBA is “to perform its functions independently of the Commonwealth”.

Finally, contrary to the plaintiff’s submissions, section 25B(1)(a) or (b) of the Acts Interpretation Act 1901 (Cth) does not lead to a contrary conclusion. The Commonwealth Banks Act 1959 (Cth), read with the Commonwealth Banks Restructuring Act 1990 (Cth), did not simply alter the name of the CBA; it altered its constitution and its basis for its existence. Section 25B(2)(a) of the Acts Interpretation Act 1901 (Cth) provides that the CBA continues in existence as newly constituted and, further, the application of section 25B is “subject to a contrary intention”: see section 2(2) of the Acts Interpretation Act 1901 (Cth).

I then come to the other defendants. None of the other defendants is the Commonwealth or is sued on its behalf. The “Third Defendants” have no relevant connection to the Commonwealth. FOSL is an entity in which the Commonwealth has no ownership or economic interest, and the Commonwealth does not exercise any control over FOSL.

For those reasons, the Court does not have jurisdiction under section 75(iii) of the Constitution.

I then turn to section 75(iv) - jurisdiction in relation to disputes between residents of different States.

The plaintiff is a resident of Tasmania. The members of the Supreme Court of Tasmania, part of what is described as the Third Defendants, are residents of Tasmania. The first and fourth defendants are corporations and not taken to be residents of any State for the purposes of section 75(iv): see Crouch v Commissioner for Railways (Qld) [1985] HCA 69; (1985) 159 CLR 22 at pages 23 to 24, 27, 34 and the authorities cited in those passages; [1985] HCA 69.

The leaves the second defendant, a resident of New South Wales. He is an employee of the CBA who, on the plaintiff’s own evidence filed in this Court, first became involved in about August 2014 and was not involved in the making of the first or second credit arrangements of which the plaintiff complains. The joinder of the second defendant in the application does not enliven the jurisdiction of the Court under section 75(iv) of the Constitution: see Union Steamship Co of New Zealand Ltd v Ferguson [1969] HCA 73; (1969) 119 CLR 191 at 196; [1969] HCA 73.

The matter may be tested this way. The relief claimed against the second defendant is ancillary to the relief claimed against his employer, the CBA, and would be subsumed within any order made against it. The second defendant is not a necessary or proper party. Him being a party to the proceeding is not necessary to determine the issues that arise on the plaintiff’s claim and in my view he should have been removed as a party: see rule 21.05.1(a) of the High Court Rules 2004 (Cth) and Australian Tape Manufacturers Association Ltd v The Commonwealth [1990] HCA 38; (1990) 64 ALJR 530 at 532; [1990] HCA 38; 94 ALR 641 at 645.

Finally, although it is strictly unnecessary to deal with it, it is at least arguable that the presence of a corporation on the record as a defendant (as the CBA is here), denies this proceeding the necessary character of a proceeding between residents of different States for the purposes of 75(iv) of the Constitution: see Rochford v Dayes [1989] HCA 17; (1989) 63 ALJR 315 at 316; [1989] HCA 17; 84 ALR 405 at 406 - 407.

I then turn to section 75(v) of the Constitution – a writ of mandamus or prohibition or injunction being sought against an officer of the Commonwealth.

There is no party before the Court amenable to certiorari, mandamus or prohibition under section 75(v) of the Constitution.

In particular, the Judges of the Supreme Court of Tasmania are not “officers of the Commonwealth”, even when exercising federal jurisdiction: see R v Murray and Cormie; Ex parte the Commonwealth [1916] HCA 58; (1916) 22 CLR 437 at 452 to 453; 464 and 471; [1916] HCA 58; and see also Bird v NSW Council for Civil Liberties Inc (1994) 68 ALJR 497 and Re Owen: Ex parte Sumampow [2001] HCA 55; (2001) 183 ALR 372 at 378, paragraph 28; [2001] HCA 55.

Finally, neither the CBA nor FOSL is an officer of the Commonwealth.

Can I then turn to deal with section 76(i) and (ii) of the Constitution – matters arising under the Constitution, or involving its interpretation, and matters arising under any laws made by the Commonwealth Parliament.

Section 76 of the Constitution empowers the Parliament to make laws conferring original jurisdiction on the Court in a number of additional matters to those set out in section 75. It does not confer any additional original jurisdiction on the Court.

Under section 76(i) of the Constitution, Parliament has conferred additional original jurisdiction on the Court in matters arising under the Constitution or involving its interpretation by section 30(a) of the Judiciary Act 1903 (Cth). None of the plaintiff’s contentions arise under the Constitution or involve its interpretation.

As for section 76(ii) of the Constitution, the Parliament has not conferred additional original jurisdiction on the Court in matters arising under any laws made by the Parliament.

Can I then turn to the Judiciary Act 1903 (Cth)?

In addition to section 30(a) of the Judiciary Act 1903 (Cth), the plaintiff referred to sections 16, 31, 33(a), 33(e) and 44 of the Judiciary Act 1903 (Cth) as conferring original jurisdiction on this Court to hear and determine the plaintiff’s claims. None of those sections assist the plaintiff. Sections 16, 31 and 33 are predicated on original jurisdiction having been conferred on the Court. This proceeding does not invoke that jurisdiction. Section 44 is concerned with the remitter of matters by the High Court to other courts.

I then turn to a new topic, the rights already determined, and whether there is a serious question to be tried.

Even if this Court had jurisdiction (and it does not), the plaintiff’s application for an order to show cause and her application for interlocutory relief would fail.

The claims in both the application for an order to show cause, and in the application for an interlocutory injunction, have been determined by judgments of the Supreme Court of Tasmania and by the execution of a deed of settlement between the plaintiff and the CBA.

The judgments of the Supreme Court of Tasmania determined the rights of the CBA to possession of the Elphin Road Property. Despite the availability of appeals from those judgments, the plaintiff has not applied to the Supreme Court of Tasmania to stay or appeal those judgments or applied for leave to appeal out of time. That is an insurmountable hurdle for the plaintiff: see Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 285 and 295; [1983] HCA 36 and Indrisie v General Credits Ltd [1984] FCA 309; (1984) 5 FCR 582.

The deed of settlement was executed on 7 March 2016. The plaintiff was represented by experienced counsel. The settlement allowed the plaintiff until 18 April 2016 in which to refinance or otherwise raise the sum due to the CBA; failing which the plaintiff consented to the CBA exercising its power of sale over the Elphin Road Property and entry of orders giving judgment. The plaintiff having failed to pay the agreed sum within the agreed time, the CBA entered the orders on 20 April 2016. By clause 5 of that deed of settlement, the plaintiff released the CBA from all claims in respect of all credit arrangements to her by the CBA and all related securities. That is another hurdle, insurmountable in my view, for the plaintiff.

The plaintiff filed no appeal from the relevant orders of the Supreme Court of Tasmania and has not sought an extension of time to do so. Instead, on 4 July 2016, the plaintiff, represented by solicitors in Melbourne, sought an undertaking from the CBA to stay the sale of the Elphin Road Property pending filing of proceedings in the Federal Court of Australia to set aside the security and loan contract arrangements on arguable grounds of contravention of the National Credit Code (under the National Consumer Credit Protection Act 2009 (Cth)) and the Australian Securities and Investment Commission Act 2001 (Cth). The plaintiff’s then solicitors stated that in the absence of an undertaking, the plaintiff intended filing an urgent injunction application in the Federal Court. The CBA refused to provide the undertaking on the same day, and the plaintiff did not commence proceedings in the Federal Court.

Finally, for the sake of completeness, the plaintiff’s summons seeking interlocutory relief would be refused on discretionary grounds, and make an order to show cause futile, for reasons in addition to those already addressed, including:

(1) the plaintiff has not proffered an explanation for the delay in this application;

(2) the plaintiff has failed to pay into Court or otherwise provide security for the amount due under the mortgages: see Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161; [1972] HCA 74;

(3) damages are likely to be an adequate remedy;

(4) despite the plaintiff’s submissions, I do not accept that the plaintiff has provided evidence that any undertaking as to damages would be valuable; and

(5) the CBA, as mortgagee, has possession of the Elphin Road Property.

For those reasons, under rule 25.03.3(a) of the High Court Rules 2004 (Cth), the application for an order to show cause will be dismissed with costs and the plaintiff’s summons seeking interim relief is also refused with costs.

MR KING: If your Honour pleases.

MR WILLIS: If your Honour pleases.

MR KING: Your Honour, I would indicate that we propose to appeal from your Honour’s order and we would ask for a temporary stay so that we can press that application.

HER HONOUR: I think for the reasons that I have set out in the discretionary relief, as well as the other matters, that stay would be refused, Mr King.

MR KING: We would respectfully submit this, your Honour, that the real question is whether or not this Court exercising its supervisory jurisdiction – I know your Honour’s focus was on 75(iii), (iv) and (v), but, with respect, our submissions were focused more on 76(i) and (ii).

HER HONOUR: I dealt with 76(i) and (ii), Mr King, and that is my judgment.

MR KING: I appreciate that.

HER HONOUR: You can deal with it on appeal in the usual way.

MR KING: Of course. But what I was respectfully submitting to your Honour was that, having regard to the enormity of Ms Burge’s position and the fact that the Bank is covered by the equity which it holds, it has ample property in its own possession which would cover any claim that it may have against my client, that it would be reasonable for your Honour to at least give us a short stay so that we could have the opportunity to raise the issues with the Full Court on leave to appeal under the Judiciary Act. Your Honour, that engages, we respectfully submit, the power that your Honour has to grant that temporary reprieve.

HER HONOUR: Mr Willis.

MR WILLIS: Your Honour, I submit that the matters do not address the necessity or the grounds for a stay. Mr King has really just repeated matters that have already been addressed in your Honour’s judgment. If your Honour bears with me one moment, I will just see if I can get instructions.

HER HONOUR: Certainly.

MR WILLIS: That is my submission.

HER HONOUR: Thank you. At the conclusion of delivering my reasons for judgment in this matter Mr King applied for a short stay in order to raise the issues that have been the subject of the reasons for decision in the Full Court. He described it as a “temporary reprieve”. For the reasons set out in that judgment I remain of the view that there is no basis for a stay and the application for a stay is refused.

Anything further? Adjourn the Court, thank you.

AT 12.30 PM THE MATTER WAS CONCLUDED