No. 2031 of 2000
- The plaintiff claims that the defendants wrongfully disclosed
confidential information. The plaintiff bases its claim in contract
and
equity. The first and second defendants in their defence and
counterclaim have denied the allegations and, also, pleaded that in so far as
there were arrangements between them and the plaintiff such arrangements
contravened the restrictive trade practices provisions Part IV of the Trade
Practices Act 1974. The provisions of the statute fall within the
exclusive jurisdiction of the Federal Court of Australia. As a consequence,
the
first and second defendants seek the transfer of the proceeding pursuant to
the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic). The
plaintiff opposes the application and urges that the proceeding remain within
the Commercial List of this court.
- Each of the defendants supported the cross resting of the
proceedings. Notice was given to the Attorneys-General for the State
of
Victoria and the Commonwealth of Australia. Submissions in support of the
transfer of the proceedings were made on behalf of
the
Attorneys-General.
BACKGROUND
- Computershare is engaged in the business of providing share
registry and bureau services for public listed companies. These services
are
generally referred to in the industry as bureau services. The services
provided by Computershare include the provision of a
share registry involving
the maintenance of a database of share holders and details, the processing of
share transfers, the calculation
and payment of dividends, the management of
dividend reinvestment plans and other various activities relating to provision
of share
registry and maintenance. It also provides bureau services consisting
of the maintenance of a central computer system that contains
the database of
registry information and matters derived from the registry services provided by
Computershare. It claims that it
develops software to enable Computershare to
provide a comprehensive range of securities, registry and bureau services to
its clientele
utilising software that was developed on an ongoing basis.
Computershare expanded its share of registry and bureau services to the
point
that it alleges that it is now the largest provider of registry services in
Australia. The first defendant, Perpetual Registrars,
is the second largest
provider of share registry services and is a direct competitor with
Computershare in the marketplace.
- The proceedings were commenced on 4 April 2000. Computershare
alleged that it entered into an agreement on 1 September 1998 ("The
Bureau
Services Agreement") with Perpetual Registrars and the second defendant,
Perpetual Trustees. Under the Bureau Services Agreement
Computershare agreed
to provide its bureau services to Perpetual Registrars. The agreement
contained particular confidentiality
clauses. Computershare alleges that on a
date unknown to it but it seemed shortly before 20 March 2000 Perpetual
Trustees and the
Australian Stock Exchange entered into an agreement for a
proposed joint venture that gave rise to the alleged disclosure of confidential
information in breach of the terms of the Bureau Services Agreement. As a
result of these circumstances and exchanges between Computershare
and Perpetual
Registrars, Computershare commenced this proceeding. Initially, it sought an
interlocutory injunction against the
defendants restraining the access,
disclosure and use of the information alleged to be confidential. It also
sought the filing of
an affidavit by the defendants concerning the access,
disclosure and use of that information and discovery of documents by the
defendants
prior to the closure of pleadings pursuant to Order 29.07 of Chapter
1 of the Rules of the Supreme Court. In addition, the plaintiffs
sought non
party discovery against the Australian Stock Exchange pursuant to Order 32.07
of the Rules.
- Computershare was successful on its interlocutory application
[1] and consequential orders were made. The
proceeding remained in the Commercial List of this Court and on 11 May 2000 the
first and
second defendants filed their defence. In the defence the Perpetual
interests denied that they had divulged confidential information.
They alleged
further that on the construction and definition of confidential information
relied upon by Computershare in the proceeding
as contained in the Bureau
Services Agreement together with the entering into and giving effect to the
agreement constituted conduct
in breach of Part IV of the Trade Practices
Act. The Perpetual interests counter claimed against Computershare and one
Christopher John Morris seeking declarations that Computershare
had contravened
Sections 45 (2) (a) (i) (ii) and (b) (i) (ii), 46 and 47 (1) of the Trade
Practices Act and that Morris had been knowingly concerned in the
contraventions alleged. The Perpetual interests also sought damages pursuant
to Section 82 of the Trade Practices Act.
- In the counter claim the Perpetual interests alleged that the
overwhelming majority of bureau services provided in Australia are
supplied by
Computershare in that it has a market share of about 85-90%. The Perpetual
interests alleged that arising from the market
share enjoyed by
Computershare:
(1) It has the capacity to raise price over supply without the
risk of losing customers.
(2) Parties such as the Perpetual interests have no practical
alternative supplier of bureau services available to them.
(3) Computershare is vertically integrated as it has the
capacity to supply bureau services upstream in the bureau services market
and
downstream in the registry services market.
(4) As a result of the monopoly currently enjoyed by
Computershare it would take a potential competitor at least eighteen months to
enter the bureau services market
(5) There are significant barriers to entry in the bureau
services market arising from:
(a) Establishment costs and initiatives;
(b) Minimum scale requirements of the markets;
(c) Establishment lead time;
(d) The lack of significant customers until the expiration of the Bureau
Services Agreement between Computershare and Perpetual.
- In summary, the Perpetual interests allege that if
Computershare was to succeed in upholding the terms of the Bureau Services
Agreement,
in particular, the confidentiality provisions as it purports to do,
the terms of that agreement and the associated conduct of Computershare
is in
breach of the restrictive practices provisions of the Trade Practices
Act. Section 45 (2) (a) (b) of the Act prohibit the making of contracts
that contain an exclusionary provision or would substantially
lessen
competition. Section 46 prohibits a corporation that has a substantial degree
of power in a market from misusing such powers.
Section 47 (1) of the Act
prohibits a corporation from engaging in exclusive dealings. Perpetual alleges
that a result of the position
and the power of Computershare in the bureau
services market the terms of the Bureau Services Agreement and the conduct of
Computershare
in relying upon the agreement in this proceeding amount to
breaches of Sections 45 (2), 46 and 47 of the Trade Practices
Act.
- In separate proceedings Computershare claimed moneys said to be
owed by Perpetual to Computershare under the Bureau Services Agreement
(hereafter referred to as "the other proceeding"). There was no issue between
the parties that the other proceeding did not raise
any special federal
matters. However, it is clearly a related proceeding as it is concerned with
the Bureau Services Agreement that
is the subject of the dispute between the
parties in the primary proceeding before me. Accordingly, the disposition of
the primary
proceeding is potentially relevant to the future disposition of the
other proceeding.
- The matter came before me to determine whether or not the
proceeding should be transferred to the Federal Court pursuant to the
provisions of s.6 of the Jurisdiction of Courts (Cross-Vesting) Act.
The Perpetual interests urged that the proceeding should be transferred. The
third defendant, Morris, indicated that he abided
by the decision of the court
and did not seek to make any submissions. The Attorneys-General for the State
of Victoria and the Commonwealth
intervened in the proceeding pursuant to s.78A
of the Judiciary Act 1903 (Cth) in support of the first and second
defendants' position having received notification pursuant to s.78B of that Act
that a matter arose under The Constitution or involved its
interpretation and, further, in response to notices given pursuant to s.6(4) of
the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) ("the State
Act") and s.6(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987
(Cth) ("the Commonwealth Act").
- Computershare submitted that the proceeding should not be
transferred under s.6 of either the State or Commonwealth Act. The position of
the plaintiff was based on two grounds. First, that this court has no power to
transfer the proceeding because
s.6 in both Acts is of no effect. In essence
the first argument was that s.6 was wholly dependent upon other provisions of
the Commonwealth Act that are constitutionally invalid and upon other
provisions of the State Act that are of no effect. It was submitted that the
provisions gave the Federal Court jurisdiction to accept and deal with the
"proceeding"
referred to in s.6 but that since Re Wakim; ex parte
McNally [1999] HCA 27; (1999) 73 ALJR 839 these provisions are now invalid and/or of no
effect. It was submitted that, accordingly, the foundation for s.6 was removed
and that the section is in its current form is invalid or of no effect. It was
further submitted that the invalidity
of s.6 was recognised by the enactment by
the Commonwealth of the Jurisdiction of Courts Legislation Amendment Act
2000 (Cth) and the enactment by the State of the Federal Courts
(Consequential Amendments) Act 2000 (Vic).
- The plaintiff's first argument can be summarised
as:
(a) section 6(1) relies upon section 9(2) of the Commonwealth
Act and section 4(1) of the State Act for its foundation;
(b) section 9 (2) of the Commonwealth Act is invalid because it purports to
confer state jurisdiction on the Federal Court contrary to Chapter III of
The Constitution and section 4 (1) of the Victorian Act is of no effect
as it purports to confer state jurisdiction on the Federal Court which is
not
in accordance with Chapter III;
(c) section 6(1) is thus deprived of its foundation; and,
(d) as a result, section 6(1) of the Commonwealth Act has no constitutional
validity and section 6(1) of the Victorian Act has no effect.
- The second ground of the submission by Computershare was that
if s.6 was nevertheless valid there were "special reasons" for this
court in
the exercise of its discretion under s.6(3) of both the State and Commonwealth
Acts to order that the proceeding be determined
in this court. The argument
was developed on the basis that many of the claims in the present proceeding
and the other proceeding
would not or may not come within the original or
accrued jurisdiction of the Federal Court.
- I turn to consider each of the plaintiff's arguments based on
invalidity and special reasons.
THE INVALIDITY ARGUMENT
- Section 6(1) of the State Act provides:
"If
(a) a matter for determination in a proceeding that is pending
in the Supreme Court is a special federal matter; and
(b) the court does not make an order under sub-section (3) in respect of the
matter the court must transfer the proceeding in accordance
with this section
to the Federal Court ... "
Sub-section (3) of s.6 provides:
"The Supreme Court may order that the proceeding be determined by
that Court if it is satisfied that there are special reasons for
doing so in
the particular circumstances of the proceeding -other than reasons relevant to
the convenience of the parties."
Sub-section (6) of s.6 provides:
"In considering whether there are special reasons for the purposes
of sub-section (3), the court must -
(a) have regard to the general rule that special federal
matters should be heard by the Federal Court
(b) take into account any submission made in relation to the proceeding by an
Attorney-General mentioned in sub-section (4)."
- Computershare acknowledged that s.6 establishes a mandatory
requirement on the Supreme Court to transfer a proceeding to the Federal Court
in certain circumstances.
Those circumstances are where "a matter for
determination" in a "proceeding" pending in the Supreme Court is a
"special federal matter", unless the Supreme Court has made an order
under s.6(3) that the proceeding be determined by it. The "proceeding"
the subject of the transfer does not have to be exclusively or primarily
concerned with a "special federal matter". On the face of s.6 the
transferred proceeding can include state matters, including state matters that
would not be part of the Federal Court's accrued
jurisdiction. However,
Computershare submitted that the cross-vesting scheme (including s.6) clearly
intended to confer a broader jurisdiction and s.6 was predicated on that
broader jurisdiction. Reliance was placed upon the observations of McHugh J in
Re Wakim:
"Those supporting the validity of the legislation by reference to
the incidental powers have to overcome the formidable barrier that
the
cross-vesting of State judicial power has nothing to do with federal
jurisdiction. If the substratum of fact which gives rise
to a matter in
federal jurisdiction cannot be effectively disposed of without the application
of State law, the issues of State law
are determined in the exercise of federal
jurisdiction. As Mason, Brennan and Deane H pointed out in Stack v Coast
Securities (No 9) Pty Ltd, federal jurisdiction is "not restricted
to the determination of the federal claim or cause of action in the proceeding,
but extend[s]
beyond that to the litigious or justiciable controversy between
parties of which the federal claim or cause of action forms part."
The
determination of State law issues in such circumstances is part of the "accrued
jurisdiction" of the federal court. Federal
courts do not need the States,
with or without the consent of the Parliament of the Commonwealth, to confer
jurisdiction upon them
before they can determine issues arising under their
accrued jurisdiction. But the jurisdiction which the legislation in the
present
proceedings purports to confer upon the federal courts is not accrued
federal jurisdiction. It is an attempt to confer State jurisdiction
in respect
of controversies that fall outside the realm of federal jurisdiction. Apart
from the fact that a litigant in a federal
court has sought to raise in that
court a separate and distinct non-federal claim, the alleged incidental matter
has nothing to do
with the federal courts or their federal
jurisdiction."
- Computershare submitted that, ordinarily as a consequence of
the principle stated by McHugh J in Re Wakim, subject to the
Supreme Court ordering otherwise under s.6(3), the Supreme Court must transfer
the "proceeding" to the Federal Court. It was argued that it is the
'proceeding" that must be transferred, not just that part of it that is
a special federal matter. Hence the proceeding to be transferred encompasses
any state matter including a state matter that falls outside the Federal
Court's accrued jurisdiction. It was argued that the cross-vesting
scheme does
not enable the transfer of parts of a proceeding and urged that it is not
envisaged under s.6 that part of a proceeding be transferred (say, the
special federal matter part and not the parts being other than special federal
matters) by the Supreme Court to the Federal Court. That is, s.6 concerns the
transfer of a whole "proceeding". It was said that it follows that the
proceeding transferred to the Federal Court may include matters that are not
special federal
matters, that fall outside the Federal Court's accrued
jurisdiction, and are solely within State jurisdiction and require the exercise
of state judicial power.
- From this basis Computershare submitted that s.6 must be
dependent upon the Federal Court being able to exercise jurisdiction in
relation to the "proceeding" transferred to it by the Supreme Court and
not just that part of it that involves a special federal matter or anything
merely within
the Federal Court's accrued jurisdiction. It argued that the
jurisdiction is predicated upon the Federal Court being able to exercise
jurisdiction for any parts of the proceeding that are solely within State
jurisdiction, that require the exercise of state judicial
power and would fall
outside the Federal Court's accrued jurisdiction. Otherwise s.6 renders
mandatory the transfer of a proceeding to the Federal Court in circumstances
where the Federal Court does not have jurisdiction
to hear and determine parts
of the proceeding, that is, the non special federal matters not otherwise in
the jurisdiction of the
Federal Court. It was argued that this would be an
absurd result, such outcome being exaggerated by the mandatory requirement on
the Supreme Court that, if a matter for determination in a proceeding is a
special federal matter and the Supreme Court does not
make an order under
s.6(3), it "must" transfer the proceeding to the Federal
Court.
- It was further argued on behalf of Computershare that the
particular provisions of the cross-vesting scheme that s.6 must be construed
with and found to be reliant upon are s.9 of the Commonwealth Act and s.4 of
the State Act. It argued that the sections were interconnected. Section 9 of
the Commonwealth Act provides:
"s.9(1) Nothing in this or any other Act is intended to override or
limit the operation of a provision of a law of a State relating
to
cross-vesting of jurisdiction.
(2) The Federal Court, the Family Court or the Supreme Court of a
Territory
may:
(a) exercise jurisdiction (whether original or appellate) conferred on that
court by a provision of this Act or of
a law of a State relating to
cross-vesting of jurisdiction; and
(b) hear and determine a proceeding transferred to that court under
such a
provision."
- The reference in s.9(2)(a) of the Commonwealth Act to a
"provision ... of a law of a State relating to cross-vesting of
jurisdiction" is to s.4 of the State Act. Relevant for present purposes is
s.4(1) of the State Act, which provides as follows.
"s.4(1) The Federal Court has and may exercise original and
appellate jurisdiction with respect to State matters."
- "State matter" is defined in s.3(1) of the State Act to mean a
matter -
"(a) in which the Supreme Court has jurisdiction otherwise than by
reason of a law of the Commonwealth or of another State; or
(b) removed to the Supreme Court under section 8."
- Computershare urged that its argument as to the
interconnection of s.6 of the State Act with s.9 of the Commonwealth Act and
s.4 of the State Act is confirmed by reference to the second reading speech
made by the Commonwealth Attorney-General to the Jurisdiction of Courts
(Cross-vesting) Bill 1986. The Attorney-General said:[2]
"Under the cross-vesting scheme, no court will need to decide
whether any particular matter is truly within Federal or State jurisdiction
since in either event the court will have the same powers and duties. This is
because, in any particular proceedings, insofar (sic)
as the matters involved
are within Federal or Territory jurisdiction, the powers and duties will be
conferred and imposed by the
Commonwealth Act, and in so far as the matters are
not within Federal or Territory jurisdiction, the powers and duties will be
conferred by complementary
State legislation.
Provision is made in the Bill to recognise the special role of the Federal
Court in matters in which it now has,
apart from the jurisdiction of the High
Court, exclusive original or appellate jurisdiction. In particular, the Bill
provides for
the compulsory transfer by a State Supreme Court of any "special
federal matter" unless it appears to the Supreme Court that, by
reason of the
particular circumstances of the case, it is both inappropriate for the matter
to be transferred to the Federal Court
and appropriate for the Supreme Court to
determine the proceedings."
- Computershare argued the Attorney-General's speech confirms
that s.6 was intended to facilitate transfers in a context where, as a result
of other provisions in the cross-vesting scheme, "no court will
need to decide
whether any particular matter is truly within Federal or State jurisdiction
since in either event the court will have
the same powers and
duties".
- Computershare submitted that, given the interconnection
between s.6 with s.4 of the State Act and s.9 of the Commonwealth Act, the
decision in Re Wakim means that s.6 of the State Act can have no effect.
Its foundation as provided under the cross-vesting regime has been removed.
Further, it was not the legislative
intention that some other foundation could
be used. Computershare argued that its position was confirmed by the
provisions of the
Jurisdiction of Courts Legislation Amendment Act 2000.
At the time of argument the legislation was yet to come into operation.
Subsequently, the amendment commenced on 1 July 2000. Item
64 in Schedule
I of the amending Act inserted a new sub-section (1A) into s.6 of the
Commonwealth Act as follows.
"However, the court must only transfer so much of the proceeding as
is, in the opinion of the court, within the jurisdiction (including
the accrued
jurisdiction) of the Federal Court, or the court mentioned in paragraph (2)(b),
as the case may be."
- This section appears in Schedule 1 of the Act. The "Outline"
to the Revised Explanatory Memorandum in the Senate states as
follows:
"The Jurisdiction of Courts Legislation Amendment Bill contains
amendments to a number of Commonwealth Acts. The amendments:
* deal
with some of the consequences of the High Courts decision in Re
Wakim; ex parte McNally [ 1999] HCA 27;
* make provision with respect to the review of decisions in the criminal
justice process;
* amend the Australian Securities and
Investments Commission Act 1989 (ASIC
Act) and the Corporations Act 1989 to deal with the combined effect of the
decision in Re Wakim and the Corporate Law Economic Program Act
1999 (the CLERP Act); and
* amend the Director of Public Prosecutions Act 1983 to deal with the
consequences of the High Courts decision in Bond v The Queen.
In Re Wakim, the Court decided that Chapter III of The Constitution
precludes the conferral of State jurisdiction on federal courts. Schedule
1 to
the Bill repeals invalid provisions of the Commonwealth laws that purport to
consent to the conferral of State jurisdiction
on federal courts."
- The Revised Explanatory Memorandum for the Senate, in respect
of item 64 of the Jurisdiction of Courts Legislation Amendment Bill,
stated:
"This item adds a new subsection (IA) to section 6.
Section 6 presently provides that proceedings which involve a special
federal matter must be transferred to an appropriate federal
or State family
court. Re Wakim, however, raises the possibility that such a proceeding
might not be able to be transferred in total, because some other matter in
the
proceeding would not be within the federal jurisdiction of federal courts.
Subsection (I A) will ensure that the part of the
proceeding which is within
the jurisdiction of the federal court (including the accrued jurisdiction) will
be transferred to the
federal court, while the remainder of the proceed goes
ahead in the State court."
- Item 24 in Part 6 of the Federal Courts (Consequential
Amendments) Act 2000 (Vic) renders a complementary change to the State Act.
The amending State Act came into operation on 1 July 2000.
- In any event, Computershare argued that the amendments to s.6
affect substantive rights and, accordingly, will not operate retrospectively to
cases such as the present one.
- Computershare submitted that it was inappropriate to construe
s.6 in isolation as a mere procedural provision separate from other provisions
of the cross-vesting scheme (such as s.4 of the State Act and s.9 of the
Commonwealth Act). It said that to do so produces the anomalous effect of
commanding the transfer of a proceeding to the Federal Court in circumstances
where the Federal Court may not have jurisdiction to bear and determine any
matters in the proceeding. It was argued that the existence
of sub-s.(3) in
s.6 is no answer because, in the absence of an order under s.6(3), the Supreme
Court must order a transfer to the Federal Court to occur. Further, it was
said that s.6(3) was designed to deal with matters other than jurisdiction
because the assumption underlying s.6(1) was that the Federal Court would
clearly have jurisdiction. The legislature, it was argued, could not have
intended that s.6 could operate in a manner which defeats the manifest object
or purpose of the Act, being the amelioration of inconvenience and expense
caused to litigants by jurisdictional limitations in Federal, State and
Territory courts. Computershare relied upon the preamble
to the State and
Commonwealth Acts.[3]
- These principles of statutory construction were said to
require that s.6 be construed in combination with and as being reliant upon
s.4
of the State Act and s.9 of the Commonwealth Act. However, it was submitted
further that the effect of the High Court's decision in Re Wakim
on ss.4 and 9 must flow on to make s.6 of the Commonwealth Act invalid and
s.6 of the State Act of no effect.
- Finally, it was argued in support of the invalidity argument
that there is no indication in s.6 itself, or elsewhere in the State or
Commonwealth Acts, that s.6 should be read to require transfer of a proceeding
where a matter for determination is a special federal matter providing that the
non special federal matters in the proceeding (if any) are within the Federal
Court's accrued jurisdiction. It was said that the words cannot simply
be read into s.6 because it is convenient in order to carve out some form of
continued operation of s.6 post Re Wakim. Computershare argued
that such a rider cannot be implied through s.15 of the State Act. It
provides:
"This Act shall be read and construed so as not to exceed the
legislative power of the State, to the intent that if this Act would,
but for
this section, have been construed as being in excess of that power it shall
nevertheless be valid to the extent to which
it is not in excess of that
power."
- Having considered all of the arguments put forward by
Computershare I consider they are ill founded.
- Section 9(2) is not the foundation for s.6(1). Section 6(1)
does not require the support of section 4(1) of the State Act. Sections 9(2)
and 4(1) were an unsuccessful attempt to ensure that there was no hiatus in
jurisdiction in relation to any matter in either a State Supreme
Court or the
Federal Court. Section 6(1) can still operate and does operate as the
Parliament intended without the support of either of those sections. Section
6(1) of the Commonwealth Act does not purport to confer any jurisdiction on the
Federal Court nor could it do so[4]. Section 6
(1) is to be characterised as a limitation on the circumstances in which the
State Supreme Court should exercise federal jurisdiction
and a mechanical
provision dealing with the transfer of proceedings.
- The true foundation of section 6(1) of the Commonwealth Act is
section 4(1) of that Act. Section 4(1) of the Commonwealth Act is validly
based on section 77(iii) of The Constitution. Section 4(1) creates the
circumstances in which section 6(1) is to operate. If separate support were
required, s.6 may also be
supported by s.51(xxxix) of The Constitution
as s.6 relates to matters incidental to the execution of federal jurisdiction.
Section 4(1) and section 6(1) of the Commonwealth Act are the essential
elements of the undoubtedly valid legislative scheme to confer federal
jurisdiction generally on the State Supreme
Court subject to a requirement that
any "special federal matter" be heard, in the absence of "special
reasons", in the Federal Court. To give section 4(1) of the Commonwealth
Act effect in relation to a "special federal matter" without the
limitations inherent in s.6 would be diametrically contrary to the scheme of
the Commonwealth and State legislatures. Accordingly, s.6 of the Commonwealth
Act is valid.
- The procedure which s.6 specifies in the case of any
"special federal matter" and the function that section performs, remain
workable after the demise of s.9 (2) of the Commonwealth Act and section 4(1)
of the State Act. Any "proceeding" in which a "special federal
matter" is "a matter for determination" can be transferred to the
Federal Court as the section requires. There is no constitutional or other
impediment to full implementation
of that requirement.
- Jurisdiction is a separate issue to transfer of the
proceeding. Nevertheless the Federal Court will have jurisdiction to deal with
the proceeding in its primary jurisdiction in relation to the "special
federal matter" and in its accrued jurisdiction in relation to any related
claim arising in the same "matter". There will not be other claims
which do not arise in that "matter" other than claims which should not
have been joined in the proceeding in any event.
- The defence and counterclaim of the Perpetual interests raise
issues under Part IV (sections 45, 46 and 47) of the Trade Practices
Act. The subject matter of the Part IV claims includes the matters raised
in the statement of claim pleaded by Computershare. The Part IV claims are
"special federal matters" within the meaning of s.3(1) of the
Commonwealth Act and/or section 6 (1) of the Act and the claims raised by the
plaintiff depend on a common substratum of fact so as to bring them
within the
accrued jurisdiction of the Federal Court. The common substratum includes the
very matters alleged in the statement of
claim to which Part IV of the Trade
Practices Act is a defence. Pursuant to section 6(1) of the Commonwealth
Act and/or s.6(1) of the State Act, the proceeding "must" be transferred to the
Federal Court of Australia.
- In Re Wakim the High Court had before it four sets of
proceedings: ex p. McNally; ex p. Darvall; ex p. Amann;
and Spinks v Prentice. In McNally and Darvall a creditor
of a bankrupt brought proceedings in the Federal Court against the Official
Trustee in Bankruptcy seeking orders under
the Bankruptcy Act 1966 and
relief by way of damages for professional negligence against solicitors and a
barrister who had advised the Trustee. The solicitors
and the barrister
contended that the Federal Court had no jurisdiction to hear the negligence
action and sought a writ of prohibition.
In Amann the Federal Court had
ordered that the applicant be summonsed to the court for the purpose of being
examined about the affairs of
a company. Amann sought orders that the
Federal Court had no jurisdiction to make winding-up orders or to order the
conduct of the investigation.
In Spinks the applicants were summonsed
to attend an examination in relation to the winding up of a company. The
applicants contended that
the Federal Court did not have validly conferred
jurisdiction under the Corporations Law. Each of the four proceedings
concerned the jurisdiction of the Federal Court in relation to cross-vesting.
The High Court considered
the validity of the cross-vesting legislative scheme
and the corporations legislative scheme.
- The majority of the High Court (Gleeson CJ, Gaudron, Gummow
and Hayne JJ) held that the Commonwealth legislation that purported
to confer
State jurisdiction on Federal courts is invalid. McHugh J, with whom Callinan
J agreed, held that the Jurisdiction of Courts (Cross-Vesting) Acts of
the Commonwealth and each of the States are invalid insofar as they purport to
give the Federal Court jurisdiction to exercise
State judicial
power.
- McHugh J observed (at 851):
"Sections 75, 76 and 77 of Ch. III of the Constitution give the
Parliament that legislative power by empowering it to confer jurisdiction
on
Federal Courts in respect of the 'matters' specified in ss.75 and 76. State
jurisdiction or State judicial power is not one of
those 'matters'. If a
Federal Court, or for that matter a State court, is invested with jurisdiction
to determine a matter under
ss.75 and 76, it is exercising Federal jurisdiction
even when State law must be applied in the proceedings. If State law is
determinative
in a legal proceeding but there is no 'matter' within the meaning
of ss.75 and 76, the court determining the rights and liabilities
of the
parties is exercising State judicial power and its authority to decide those
rights and liabilities is an exercise of State
jurisdiction."
- And at 853:
"What prevents a State conferring jurisdiction on a Federal Court
in respect of a matter specified in ss.75 or 76 is not s.109, but
the negative
implications arising from Ch. III of the Constitution. By granting power to
the Parliament of the Commonwealth to create
Federal Courts and by expressly
stating the matters in respect of which the Parliament may confer jurisdiction
on those courts, Ch.
III impliedly forbids the conferring of any other
jurisdiction on those courts by the Commonwealth or the States. The express
statement
of those 'matters' would be pointless if the Parliament or the States
could disregard them. Moreover, the reasons that show that
the States cannot
confer jurisdiction on a Federal Court in respect of ss.75 and 76 matters point
just as strongly, perhaps moreso
because of s.77(iii), to the conclusion that
the States cannot confer State jurisdiction on Federal Courts.
... Federal Courts
are created pursuant to the power conferred upon the
Commonwealth by s.71 ... They are not created under s.71 as courts of general
jurisdiction waiting to receive grants of Federal and non-Federal jurisdiction.
They are created for the express purpose of exercising
Federal jurisdiction.
Neither the Parliament of the Commonwealth nor the legislatures of the States
can give them any other jurisdiction.
With all respect to those who think that
the States can do it and that the Parliament of the Commonwealth can consent to
it being
done, I can only say that it seemed to me to be a bizarre
conclusion."
- Further, at 856:
"If the sub-stratum of fact which gives rise to a matter in Federal
jurisdiction cannot be effectively disposed of without the application
of State
law, the issues of State law are determined in the exercise of Federal
jurisdiction (Philip Morris Inc v Adam P. Brown Male Fashions Pty Ltd
(1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v
Coast Securities (No. 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261 ... The determination
of State law issues in such circumstances is part of the 'accrued jurisdiction'
of the Federal Courts. Federal
Courts do not need the States, with or without
the consent of the Parliament of the Commonwealth, to confer jurisdiction upon
them
before they can determine issues arising under their accrued jurisdiction.
But the jurisdiction which the legislation in the present
proceedings purports
to confer upon the Federal Courts is not accrued Federal jurisdiction. It is
an attempt to confer State jurisdiction
in respect of controversies that fall
outside the realm of Federal jurisdiction.
...
Whether an issue, whose resolution depends
upon the State law or the common
law, is within the accrued jurisdiction of the Federal Court depends upon
whether it is part of
a 'matter' arising under s.75 or s.76 of The
Constitution. To be part of that 'matter' it must be part of a single
controversy.
And as the court said in Fencott v Muller, that 'depends
on what the parties have done, the relationships between or among them and the
laws which attach rights or liabilities
to their conduct and relationships. As
the court went on to say in that case, 'in the end, it is a matter of
impression and of practical
judgment whether a non-Federal claim and a Federal
claim joined in a proceeding are within the scope of one controversy and thus
within the ambit of a matter'."
- The observations made by McHugh J in Wakim (at 856)
apply in the present proceeding insofar as the issues can be gleaned from the
pleadings and various interlocutory affidavits.
In the McNally and
Darvall applications in Wakim the High Court dismissed the
applications on the ground that the applicants had failed to show that the
cases did not fall within
the accrued jurisdiction of the Federal Court. In
McNally and Darvall the claim against the Official Trustee was
based on a Federal statute. The claims against the solicitors and the
barrister were
based on the common law. McHugh J observed (at 836) that
such differences might point strongly against the applications being a
"matter". The learned judge noted that there was nevertheless a single
controversy and therefore a "matter" for the purposes of
Chapter III of The
Constitution where all the claims arose out of "a common sub-stratum of
facts". (See also Phillip Morris Inc v Adam P. Brown Male Fashions Pty
Ltd, supra at 512).
- In considering the same issue Gummow and Hayne JJ (and with
whom Gleeson CJ and Gaudron J concurred) observed (at 869):
"The central task is to identify the justiciable controversy. In
civil proceedings that will ordinarily require close attention to
the pleadings
(if any) and to the factual basis of each claim.
...
In Fencott it was said that: 'In the end, it is a matter of impression
and of practical judgment ... ' The references to 'impression' and
'practical
judgment' cannot be understood, however, as stating a test that is to be
applied. Considerations of impression and practical
judgment are relevant
because the question of jurisdiction usually arises before evidence is adduced
and often before the pleadings
are complete. Necessarily, then, the question
will have to be decided on limited information. But the question is not at
large.
What is a single controversy 'depends on what the parties have done,
the relationships between them or among them and the laws which
attach rights
or liabilities to their conduct and relationships' (Philip Morris).
There is but a single matter if differing claims arise out of 'common
transactions and facts' or 'a common sub-stratum of facts'
(Philip
Morris) notwithstanding that the facts upon which the claims depend 'do not
wholly coincide' (Fencott). Often, the conclusion that, if proceedings
were tried in different courts, there could be conflicting findings made on one
or
more issues common to the two proceedings will indicate that there is a
single matter. By contrast, if the several proceedings could
not have been
joined in one proceeding, it is difficult to see that they could be said to
constitute a single matter".
- A particular analysis is required following the judgment of
the High Court in Wakim and, in particular, the observations of McHugh J
and Gummow and Hayne JJ as to whether there is accrued jurisdiction. There is
limited
evidence before me concerning the claims in the proceeding and hence I
must determine the matter largely on the basis of the current
pleadings and
affidavits filed for a different interlocutory purpose. Here the plaintiffs
claim breach of contract, and breach of
equitable duties against the defendants
arising out of the Bureau Services Agreement. I will refer to the
Computershare claim as
"the non-federal claim". The Perpetual defendants
attack the very agreement relied upon by the plaintiff and allege that if there
was any agreement it was null and void under Federal law. I will refer to the
first and second defendants' claim as "the federal
claim". On the basis of the
pleadings and the affidavits I am able to form the impression and reach the
practical judgment that
the non-federal claim and the federal claim fall within
one and the same controversy and are within the ambit of a matter for the
purposes of Chapter III of The Constitution because the claims arise
from a common transaction and a common "sub-stratum of facts". Furthermore,
bearing in mind the observations
of Gummow and Hayne JJ in Wakim (at
869) if the plaintiffs' claim and the defendants' claim were tried in different
courts, there could be conflict in findings on
issues common to the two claims.
In addition, I consider it is apparent that both claims are properly joined in
the one proceeding.
I conclude the Computershare claim and the Perpetual claim
both fall within the same controversy. As a result, the Federal Court
has
jurisdiction under the Trade Tractices Act to hear and determine
the claims in the defence and the counter claim concerning conduct contrary to
Part IV of that Act and the other
claims in the proceeding fall within the
Federal Court's accrued jurisdiction'.[5]
- I adopted the same approach in Matland Holdings Ptv Ltd v
NTZ Pty Ltd (unreported judgment 7 September 1999) [1999] VSC 333.
- I observe, further, that it is questionable whether any
properly constituted proceeding which included a "special federal
matter" could contain a state matter not within the accrued jurisdiction
given the extensive nature of the accrued jurisdiction endorsed
by the majority
in Re Wakim.
- It is to be observed that on 11 December 1992[6], the operation of s.6 of the Commonwealth Act, as amended
to include the current "special reasons" requirement (s.6(3)), commenced.
Previously, s.6 provided:
"(2) The Supreme Court of a State or Territory shall not make an
order under sub-section (1) that the court determine a proceeding
unless it
appears to that Supreme Court that, by reason of the particular circumstances
of the case -
(a) it is not appropriate that the proceeding be transferred to
the Federal Court; and
(b) it is appropriate that that Supreme Court determine the
proceeding."
- The second reading speech in the House of Representatives
concerning the 1992 amendments to s.6 contemplates "special reasons" as meaning
"exceptional cases" or "exceptional circumstances". It contained (at p.2449)
the following
statement:
"Amendments are to be made to the jurisdiction of Courts
(Cross-vesting) Act 1987 in relation to special Federal matters. These are
matters arising under Federal law which the Cross-vesting Act requires, save in
exceptional cases, to be heard in Federal rather
than State courts. These
amendments have been considered and approved by the Standing Committee of
Attorneys-General. States and
Territories will shortly be enacting
complementary amendments to their cross- vesting legislation ...
... The amendments to be made
by the Bill will ensure that where proceedings
involving a special Federal matter come before a State court, that court will
have
regard to the general policy that special Federal matters be heard by a
Federal court. It will only be in exceptional circumstances
that a State court
will decide not to transfer a special Federal matter to a Federal court The
Bill make it clear that exceptional
circumstances do not include the
convenience of the parties".
- The second reading speech in the Senate (at pp. 5 and 6)
includes a similar statement. The explanatory memorandum circulated by
the
Attorney-General (at xviii) in relation to the amendments,
stated:
"Section 6 of the jurisdiction of Courts (Cross-vesting) Act
currently provides that a State or Territory, Supreme Court shall transfer
a
proceeding in which a special federal matter arises to the Federal Court unless
the Supreme Court is satisfied that it is both
not appropriate that the
proceedings be transferred and that it is appropriate that the proceedings be
heard by the Supreme Court.
In addition, the Commonwealth Attorney-General is
to be notified of the proceedings. The Attorney-General can require the
transfer
of the proceedings.
New sub-sections 6(1) and (3) will require the State or Territory Supreme Court
to transfer proceedings involving
special federal matters unless the Court is
satisfied that there are special reasons for the Court to hear the matter in
the particular
circumstances of the case. The convenience of the parties will
not be a reason justifying the non-transfer of proceedings."
- The relevant provisions of the State Act substantially reflect
those of the Commonwealth Act. Prior to April 1995, the relevant wording of
s.6 of the State Act also substantially reflected the pre 1992 wording of the
Commonwealth Act. In April 1995, the State Act was amended[7] to introduce the present wording as to "special reasons" in
s.6(3). It is clear from the second reading speech concerning the amendments
in the Legislative Assembly that the requirement for "special
reasons" (for the
Supreme Court not to cross-vest a "special federal matter") is a "stricter
test" than the former appropriate/inappropriate
test.
- In the second reading speech, the Attorney-General
stated:
"The scheme makes specific provision for 'special federal matters'
that arise under certain provisions of federal legislation. If
commenced in a
supreme court, these matters should normally be transferred to the appropriate
federal court. The amendments to the
Jurisdiction of Courts (Cross-Vesting) Act
1987 will do three things:
require the Supreme Court to transfer 'special federal matters' unless
satisfied that there are special reasons
which justify the Supreme Court
determining the proceedings - this is a stricter test than that which
currently applies..."
- Under s.6 of the cross-vesting legislation, if a "special
federal matter" arises for determination in a proceeding pending in the Supreme
Court
of a State or Territory, the Court must transfer the proceeding to the
Federal Court unless it makes an order that the proceeding
be determined by the
Supreme Court. The Supreme Court may make such an order if it is satisfied
that there are special reasons for
doing so in the particular circumstances of
the proceeding, other than reasons relevant to the convenience of the parties.
The definition
of "special federal matter" in s.3 includes a matter arising
under Part IV of the Trade Practices Act. The reference to "matter" in
this definition bears its constitutional meaning (as used in Chapter III of
The Constitution), extending to the entire justiciable controversy of
which the Trade Practices Act claim forms part.[8] In Re Wakim the High Court held that the
Cross-vesting Act (among other legislation) is invalid insofar as it
confers jurisdiction in State matters (i.e. matters falling outside ss.75 and
76 of The Constitution) on federal courts, or consents to such a
conferral. Accordingly, s.9(2) of the Cross-vesting Act is
invalid insofar as it purports to confer jurisdiction under State laws on the
Federal Court and the Family Court, or to consent
to such a conferral.
Similarly, s.4(1) of each of the State Cross-vesting Acts is invalid or
ineffective. The effect of such invalidity
on the remaining provisions of the
Commonwealth or State cross-vesting legislation is to be determined by the
application of principles
relating to the severance and reading down of invalid
legislative provisions.
- In the light of the decision in Re Wakim, s.6 cannot
apply so as to require the transfer of a proceeding that is not within the
jurisdiction, including any accrued jurisdiction,
of the Federal Court. The
policy implicit in s.6, in its present form, is that the entire proceeding
should be determined by one
court. However, s.6 can be read down so as to
apply validly to proceedings that are within the jurisdiction, including any
accrued
jurisdiction, of the Federal Court. Again, I adopted this approach in
Matland Holdings Pty Ltd v NTZ Pty Ltd, supra, para 27.
- Contrary to the submissions by Computershare the 'foundation'
for s.6 of the cross-vesting legislation is not the conferral of jurisdiction
in State matters on federal courts purportedly effected by s.9(2) of the
cross-vesting legislation (in conjunction with s.4(1) of
each of the State
cross-vesting Acts). Such construction is based on three grounds. First,
insofar as the proceeding pending in
this Court includes a 'special federal
matter', that proceeding involves the exercise of federal jurisdiction
conferred on the Supreme
Court by Commonwealth legislation.[9] Section 6 is a condition imposed on the investiture and
exercise of this federal jurisdiction.[10]
Second, s.6 is capable of applying to proceedings that are wholly within
federal jurisdiction, including any accrued jurisdiction,
quite independently
of the purported conferral on the Federal Court of jurisdiction with respect to
state matters. Indeed, the proceeding
to which s.6 applies may consist entirely
of a 'special federal matter'. Third, the jurisdiction of the Federal Court
with respect
to the "special federal matter" involved in the present proceeding
is not conferred by any provision of the Cross-vesting Act. Such
jurisdiction
is conferred by s.86 of the Trade Practices Act.
- It is incorrect therefore to assert as Computershare does that
s.6 is interdependent or "inextricably interwoven" with the provisions of the
cross-vesting legislation that were held invalid in Re Wakim. On the
contrary, on three grounds, s.6 can operate independently of the provisions
which invalidly confer or consent to the conferral of state jurisdiction on the
Federal
Court. At the outset those invalid provisions can be severed from the
balance of the cross-vesting legislation. Thereafter, s.6 should not be
construed in a manner that would take the provision beyond constitutional
power.[11] Ultimately, to the extent that the
application of s.6 to any particular proceedings would be beyond power, the
section can be read down so as not to apply to those proceedings. At most
s.6
is invalid only to the extent that it applies to proceedings which include
claims that do not form part of a matter over which the
Federal Court can be
given jurisdiction.
- Three observations can be made of the cross-vesting scheme.
First, the provisions of the cross-vesting legislation do not indicate
a
legislative intention that the Act, or section 6 of the Act, 'was intended to
operate fully and completely according to its terms,
or not at all'.[12] Section 15 of the cross-vesting legislation
indicates the Parliament's general intention that the Act is to be upheld as
valid to
the extent to which it is not in excess of Commonwealth legislative
power.[13] Further, s.16(4) specifically
provides a mechanism to address the consequences of any partial invalidity of
the cross-vesting legislation.
Second, the cross-vesting legislation reveals a
test or standard by reference to which the general words of s.6 (in particular,
'a proceeding that is pending in the Supreme Court of a State or Territory')
can be read down so as to cover those proceedings which
may be validly
transferred to the Federal Court.[14]
'[W]here a law is intended to operate in an area where Parliament's legislative
power is subject to a clear limitation, it can be
read as subject to that
limitation.[15] It is not uncommon for a
Commonwealth legislative provision expressed in general terms to be read down
so as to exclude any applications
which would contravene a constitutional
limitation".[16] Third, when read down in
this manner, s.6 of the cross-vesting legislation does not have a different
operation or effect on the
subjects to which it validly applies.[17] It simply applies in the same way to a narrower range of
proceedings.[18]
- In submitting that severance or reading down in this manner is
not open, the plaintiff effectively contends that s.6 is invalid
in its
entirety merely because of the possibility that it might apply to a proceeding
that is not entirely within federal jurisdiction
(including accrued
jurisdiction). On proper analysis that is an unnecessary conclusion which is
contrary to the general principles
of construction already
considered.
- Furthermore, it will be a relatively rare occurrence that a
single proceeding in the Supreme Court will include both a special federal
matter and separate, distinct or unrelated non-federal claims (as Computershare
contends is the case in the present proceeding).
Further, even where such a
proceeding arises, it may be possible for the Supreme Court to split the
non-federal claims into a separate
proceeding, so that the transfer obligation
imposed by s.6 of the cross-vesting legislation applies only to the balance of
the proceeding
involving the special federal matter.[19] However, whilst possible in my view it is an undesirable
course to adopt because of the inherent risk of duplication of evidence
and
proceedings and the potential for inconsistent findings of fact.
- It should be observed, also, that the jurisdiction of the
Federal Court in respect of matters arising under the Trade Practices
Act, and also its accrued jurisdiction when invoked, is the jurisdiction
conferred by s.86(1) of that Act. In addition to the jurisdiction conferred on
this Court by s.86(2) of the Trade Practices Act in respect of some
matters arising under that Act, the jurisdiction of this Court in respect of
all such matters is the jurisdiction
conferred by s.4(1) of the Jurisdiction
of Courts (Cross-Vesting) Act, such conferral of jurisdiction being subject
to s.6 of that Act.
- It is to be observed that all accrued jurisdiction of the
Federal Court is federal jurisdiction. The accrued jurisdiction of the
Federal
Court is extensive. The identification of a single justiciable controversy may
occur where there are separate proceedings
and different parties and even where
the controversy has proceeded through more than one court. A single
controversy may arise out
of a common substratum of facts although the facts
upon which the claims depend do not wholly coincide. Nor need there be a
federal
claim against every respondent in the proceedings. If there is a risk
that there could be conflicting findings made on issues common
to two
proceedings, if they were tried in different courts, this suggests that there
is but a single controversy.[20]
- Further, given the breadth of the accrued jurisdiction
endorsed in Re Wakim, claims involving a "special federal matter"
brought in the Supreme Court in compliance with the Rules of the Supreme Court
as to
joinder of claims and parties[21] will
almost invariably fall within the accrued jurisdiction of the Federal Court.
The connection between the "special federal matter"
and the non-federal matter
and the connection between parties required by those Rules will normally lead
to the conclusion that both
matters arise out of a single justiciable
controversy.
- Contrary to the plaintiff's submissions, the amended s.6 (as
amended by the Jurisdiction of Courts Amendment Act and the Federal
Courts (Consequential Amendments) Act is applicable to the current
proceedings on its commencement. Section 6(1A) is procedural in nature. It
does not affect any substantive
rights but merely regulates the way in which
such rights may be determined and enforced. The subsection should therefore be
construed
as applying to any existing proceedings at the date of its
commencement without any inconsistency with the general rule of construction
that statutory provisions affecting substantive rights are ordinarily presumed
not to operate retrospectively.[22] Second,
the distinction between substantive and procedural provisions has been
described as a distinction between provisions that
modify substantive rights
and liabilities and provisions that deal with the pursuit of remedies.[23] Section 6 falls into the latter category.
A party to a proceeding involving a special federal matter does not have a
substantive
right to have that proceeding heard and determined by a State
Supreme Court in which federal jurisdiction has been invested.[24] The operation of s.6 does not affect the substantive
rights or liabilities at issue in the proceeding. If the proceeding is
transferred
to the Federal Court, the parties 'will have the same opportunities
of endeavouring to establish the same rights and liabilities
as they might
before the Supreme Court.[25]
- The amendments to s.6 effected by the Jurisdiction of
Courts Amendment Act remove any constitutional objection raised by the
plaintiff in the present case. Thus, once the amendments commenced, the
question
of the constitutional validity of s.6 in its unamended form became an
academic question.
- The intended operation of s.6 of the Jurisdiction of Courts
(Cross-vesting) Act (Vic) was amended so as to put its validity beyond
doubt. Sub-section (1) of s.24 of the Federal Courts (Consequential
Amendments) Act repeals s.4(1) and s.4(2) of the Jurisdiction of Courts
(Cross-vesting) Act (Vic) which were held to be invalid by the High Court
in Re Wakim. Sub-section (8) of s.24 of the Federal Courts
(Consequential Amendments) Act inserts sub-section (IA) into s.6 of the
Jurisdiction of Courts (Cross-vesting) Act. Sub-section (IA) of s.6
relevantly provides:
"However, the court must only transfer so much of the proceeding as
is, in the opinion of the court, within the jurisdiction (including
the accrued
jurisdiction) of the Federal Court ... ".
- As sub-section (1A) affects only the forum in which the
parties' substantive rights are to be enforced, it is procedural in character.
Upon commencement it had retrospective operation so as to be applicable to the
present proceeding.[26]
- Section 15 of the Jurisdiction of Courts (Cross-vesting)
Act (Vic) prescribes that the Act it is to be construed so as not to exceed
the legislative power of the State of Victoria. It provides:
"This Act shall be read and construed so as not to exceed the
legislative power of the State, to the intent that if this Act would,
but for
this section, have been construed as being in excess of that power, it shall
nevertheless be valid to the extent to which
it is not in excess of that
power."
- Section 6(1) of the Interpretation of Legislation Act
1984 (Vic) is to a similar effect to s.15 of the Jurisdiction of Courts
(Cross-vesting) Act. It provides:
"Every Act shall be construed as operating to the full extent of,
but so as not to exceed, the legislative power of the State of Victoria,
to the
intent that where a provision of an Act, or the application of any such
provision to any person, subject-matter or circumstance,
would, but for this
section, have been construed as being in excess of that power, it shall
nevertheless be a valid provision to
the extent to which it is not in excess of
that power and the remainder of the Act and the application of that provision
to other
persons, subject-matters or circumstances shall not be
affected."
- Section 15 of the Jurisdiction of Courts (Cross-Vesting)
Act (Cth) provides that the Act is to be construed subject to The
Constitution and so as not to exceed the legislative power of the
Commonwealth. It provides:
"This Act shall be read and construed subject to the Constitution,
and so as not to exceed the legislative power of the Commonwealth,
to the
intent that if this Act would, but for this section, have been construed as
being in excess of that power, it shall nevertheless
be valid to the extent to
which it is not in excess of that power."
- Section 15A of the Acts Interpretation Act 1901 is also
relevant. It provides:
"Every Act shall be read and construed subject to the Constitution,
and so as not to exceed the legislative power of the Commonwealth,
to the
intent that where any enactment thereof would, but for this section, have been
construed as being in excess of that power,
it shall nevertheless be a valid
enactment to the extent to which it is not in excess of that
power."
- It is plain that the Victorian Parliament, by repealing those
parts of the Jurisdiction of Courts (Cross-vesting) Act (Vic) which were
held to be invalid and by limiting the operation of s.6, intends that the valid
provisions of that Act will continue to operate notwithstanding the severance
and repeal of the invalid provisions.
Thus the decision of the High Court in
Re Wakim does not bring about the result that the provisions not
under challenge in that case must be held to be invalid. The invalid provisions
are plainly severable and the later legislation confirms this proposition. The
manifest Parliamentary intention is for the law to
have the same operation upon
the subjects of power as it was always intended to have save for those
provisions held to be invalid.[27] Likewise
the Commonwealth Parliament, by repealing those parts of the Jurisdiction of
Courts (Cross-Vesting) Act (Cth) which were held to be invalid and
by clarifying the operation of s.6 intends that the valid provisions will
continue to operate notwithstanding the severance and repeal of the invalid
provisions.
- The enactment and operation of the Federal Courts
(Consequential Amendment) Act can be considered by this Court as
confirmation that the restricted construction prescribed by s.15 of the
Jurisdiction of Courts (Cross-vesting) Act (Vic) and/or by s.6(1)
of the Interpretation of Legislation Act 1984 (Vic) is applicable
to s.6 of the Jurisdiction of Courts (Cross-vesting) Act (Vic) as
currently in operation. Equally, the enactment and operation of the
Jurisdiction of Courts Legislation Amendment Act can be considered by
this Court as confirmation that the restricted construction prescribed by s.15
of the Jurisdiction of Courts (Cross-Vesting) Act and/or by s.15A of the
Acts Interpretation Act 1901 is applicable to s.6 of the
Jurisdiction of Courts (Cross-Vesting) Act as currently in operation.
In other words, s.6(1) of the Jurisdiction of Courts (Cross-vesting) Act
(Vic) and s.6 of the Jurisdiction of Courts (Cross-vesting) Act
(Cth) are to be construed as not permitting the transfer of matters to the
Federal Court which will require the exercise of State
judicial power. The
validity of those provisions should be upheld.
- It follows that Computershare fails on is invalidity
argument.
THE SPECIAL REASONS ARGUMENT
- It was submitted that this court should be satisfied that
there are "special reasons" peculiar to this case for the proceeding to
be
determined by it and, accordingly, should order under s.6(3) that the
proceeding be determined by it. These "special reasons" were said to be other
than reasons relevant to the convenience
of the parties. Computershare relied
upon two reasons. First, the present case is a proceeding with state matters
not within the
Federal Court's accrued jurisdiction. Second, various other
discretionary factors individually and cumulatively amount to special
reasons
for this court to order that the proceeding be determined by it.
- In relation to the first reason, Computershare submitted that,
in this litigation, there are state and federal matters that are
not a single
justiciable controversy. If that is correct then the Federal Court does not
have jurisdiction in the whole matter.
This, it was said, is a "special
reason" for the purposes of s.6(3) for the Supreme Court to order that the
proceeding be determined by it. If s.6(1) is still valid, s.6(3) should be
construed in a way that would require the transferring court to inquire into
issues such as competence or jurisdiction
(as opposed to the merits of a case):
see Re Williams; Ex parte Oates (1997) 140 FLR 124 at
127.
- The state of the law on the Federal Court's accrued
jurisdiction is summarised by Gummow and Hayne JJ (with whom Gleeson CJ and
Gaudron J agreed) in Re Wakim as follows:
"It must now be regarded as established that the jurisdiction of a
federal court having jurisdiction in a matter arising under a law
made by the
Parliament is not restricted to the determination of the federal claim or cause
of action in the proceeding, but extend[s]
beyond that to the litigious or
justiciable controversy between parties of which the federal claim or cause of
action forms part.[28] In Stack v Coast
Securities (No 9) Pty Ltd the majority said:[29]
'In this, as in other cases, the recurrent problem is to identify what it is
that falls within the Federal Court's accrued jurisdiction.
The majority
judgment in Fencott v Muller provides this assistance in reaching
an answer:
'What is and what is not part of the one controversy depends on what the
parties
have done, the relationships between or among them and the laws which
attach rights or liabilities to their conduct and relationships.
The scope of a
controversy which constitutes a matter is not ascertained merely by reference
to the proceedings which a party may
institute, but may be illuminated by the
conduct of those proceedings and especially by the pleadings in which the
issues in controversy
are defined and the claims for relief are set out. But in
the end, it is a matter of impression and of practical judgment whether
a
non-federal claim and a federal claim joined in a proceeding are within the
scope of one controversy and thus within the ambit
of a matter'."
- Further in their joint judgment Gummow and Hayne JJ referred
to identification of the justiciable issue and of impression and practical
judgment.
- Computershare urged that the references to "impression" and
"practical judgment" cannot be understood as stating a test that is
to be
applied. Considerations of impression and practical judgment are relevant
because the question of jurisdiction usually arises
before evidence is adduced
and often before the pleadings are complete. Necessarily, then, the question
has to be decided on limited
information. But the question is not at large,
hence, determining what is a single controversy "depends on what the parties
have
done, the relationships between or among them and the laws which attach
rights or liabilities to their conduct and a relationships"[30]. There is but a single matter if different claims arise
out of "common transactions and facts" or "a common substratum of facts"[31], notwithstanding that the facts upon which
the claims depend "do not wholly coincide.[32]
So, too, there is but one matter where different claims are so related that the
determination of one is essential to the determination
of the other,[33] as, for example, in the case of third party
proceedings or where there are alternative claims for the same damage and the
determination
of one will either render the other otiose or necessitate its
determination. Computershare submitted that conversely, claims which
are
"completely disparate"[34], "completely
separate and distinct"[35] or "distinct and
unrelated"[36] are not part of the same
matter. In the majority judgment in Fencott it was
stated:
"[141] Often, the conclusion that, if proceedings were tried in
different courts, there could be conflicting findings made on one
or more
issues common to the two proceedings will indicate that there is a single
matter. By contrast, if the several proceedings
could not have been joined in
one proceeding, it is difficult to see that they could be said to constitute a
single matter."
- Having regard to these legal principles, Computershare
submitted that this case involves proceedings with state matters not within
the
Federal Court's accrued jurisdiction. In order to make good this submission
Computershare referred to the pleadings in the two
Supreme Court proceedings
that relate to the Bureau Services Agreement being the present proceedings and
the other proceeding. Computerhsare
highlighted the following:
(1) In this proceeding the statement of claim concerns breach of
contract and equitable obligations of confidence. These are state
matters that,
by themselves, are not within the jurisdiction of the Federal Court. On the
facts pleaded, the Plaintiff seeks declarations:
(a) That there has been a breach of the confidentiality clause
of the Bureau Services Agreement, further or alternatively of an equitable
obligation owed by the first defendant to the plaintiff;
(b) that there have been breaches by the first defendant of a best endeavours
clause and reasonable efforts clause of the agreement;
(c) that the said breaches are material breaches and entitle the plaintiff to
give notice to the Perpetual interests of the right
of Computershare to
terminate the Bureau Services Agreement at any time with immediate effect;
(d) that the implementation of a joint venture agreement between the Perpetual
interests and the Australian Stock Exchange to takeover
the business operations
of Perpetual Registrars will be a change in control in breach of the Bureau
Services Agreement.
- (In the statement of claim it is also alleged that the third
defendant, Morris, obtained confidential information which, unless
restrained,
he will use other than for the purposes of the Bureau Services agreement.
Injunctive relief is sought against all Defendants
to restrain them accessing
or making any use of confidential information other than for the purposes of
the Bureau Services Agreement.)
(2) The defence of the third defendant, Morris, is confined to
the construction of the contract and the issue of its breach and also
confidentiality obligations in equity, all of which are matters not by
themselves within the jurisdiction of the Federal Court.
In summary, the third
defendant, Morris, denies the allegations of Computershare in so far as they
relate to him. Further, he positively
pleads that the information he had
access to was not confidential information for the purposes of the Bureau
Services Agreement or
in equity. Alternatively, even if the information is
confidential, the third defendant pleads that there was no unlawful breach
of
confidence.
(3) The defence of the first and second defendants, the Perpetual
interests, for the most part, is also confined to these same matters that are
not by themselves within the
Jurisdiction of the Federal Court. ie the
construction of the contract and its breach and equitable breach of confidence.
It is only
the final section of the defence that purports to raise Part IV of
the Trade Practices Act.
(4) The fact of the other proceeding where the matters raised are not by
themselves matters within the jurisdiction of the Federal
Court. In the other
proceeding Computershare claims from the Perpetual interests:
(a) An order for rectification of the Bureau Services Agreement;
(b) $737,550.44 for unpaid charges due under the agreement, alternatively for
quantum meruit;
(c) $26,568.58 for other unpaid charges due under a separate agreement;
(d) $235,395.30 for additional unpaid charges due under the
agreement.
- Computershare acknowledged that, at least in respect of the
counterclaim, that Trade Practices Act Part IV pleadings are "special
federal matters" for the purposes of the cross-vesting scheme. However, it
submitted that the plaintiff's
statement of claim, most of the defences and
also the other proceeding are State matters. It was submitted that when these
matters
are considered together there are State matters that are "completely
disparate"[37], "completely separate and
distinct"[38] or distinct and unrelated[39], to the special federal matters.
Accordingly, it was submitted the Federal Court does not have jurisdiction to
hear and determine
the whole matter. Consequently, it was said this is a
"special reason" under s.6(3) for this court to order that the proceeding be
determined by it and not transfer the proceeding to the Federal
Court.
- Computershare submitted that, further, various other
discretionary factors individually and cumulatively amount to "special reasons"
for this court to order under s.6(3) that the proceeding be determined by it.
First, this court should still consider when exercising its discretion under
s.6(3) the probability or chance that the Plaintiffs concerns may ultimately be
correct. Upon a full examination of the facts of the case
the Federal Court
might reach the conclusion that there are state matters in the proceeding not
within its jurisdiction. Gummow
and Hayne M (Gleeson CJ and Gaudron J agreed)
in Re Wakim stated:
"... Considerations of impression and practical judgment are
relevant because the question of jurisdiction usually arises before evidence
is
adduced and often before the pleadings are complete. Necessarily, then, the
question will have to be decided on limited information.
But the question is
not at large."
- Second, it was submitted that even if the plaintiff can only
persuade this Court that prima facie the present case is a proceeding
with state matters not within the Federal Court's accrued jurisdiction then
that itself amounts to
serious prejudice to the Plaintiff if the proceeding is
transferred to the Federal Court.
- Hence it was argued on these two grounds that if s.6 is still
valid, the Court should order that the proceedings be determined in the Supreme
Court.
- Virtually all these matters were considered already with
respect to the invalidity argument. I consider that there are no special
reasons why this proceeding (and for that matter) the other proceeding ought
remain with this court. It is to be observed that the
Preamble to
the Commonwealth Act makes it clear that the objects or purposes of the Act
include ensuring that Part IV matters under the Trade Practices Act are
determined in the Federal Court and providing a mechanism for the transfer of
proceedings involving such matters to the Federal
Court.
- Even under the wording of the cross-vesting legislation, there
was a high threshold of satisfaction before a Supreme Court should
determine
not to cross-vest a proceeding. In NEC Information Systems Australia Pty
Ltd v Iveson[40] at 268, Black CJ,
Lockhart and Gummow JJ stated:
"The effect of subs (2) has been described (Griffith QC, Rose and
Gageler, 'Further Aspects of the Cross-vesting Scheme' (1988) 62 ALJ 1016 at
10.21) as follows..
'Implicit in this provision is a requirement for a high threshold of
satisfaction before a State court determines
not to transfer a proceeding to
the Federal Court' The importance given by the parliament to the observance of
the criteria in subs
(2) is emphasised by the reservation by subs (6) of the
Jurisdiction of the Supreme Court to grant interlocutory relief which is
so
urgent that it is in the interests justice to do so"
- In Nilsen Industrial Electronics Pty Ltd v National
Semiconductor Corporation[41], Ormiston J
(as he then was) considered the effect of the previous wording of the
Commonwealth Act in circumstances in which a defendant claimed in reply that a
contract was an "exclusionary provision" and so was unenforceable because
of
s.45 of the Trade Practices Act (similar, and more substantial, issues
exist in this proceeding). His Honour held that:
"The disputes raised on the pleadings are of a kind commonly tried
in that court [the Federal Court] and so I cannot conclude that
it is
inappropriate. There will be no obvious additional delay which will face the
parties to the proceeding, nor any other serious
inconvenience to them, even if
that be relevant. Nor from my understanding of the action, is it practicable to
hear the plaintiffs
claim before and separately from the third party claims,
even if I were entitled to defer consideration of this question or to transfer
only the third party proceedings".
- More recent cases dealing with the "special reasons" wording
recognise the intention of the legislatures that there is a stricter
test for a
Court to determine not to cross-vest a special federal matter. In Pridmore
v Magenta Nominees Pty Ltd[42]
Scott J of the Supreme Court of Western Australia considered that,
where a matter was appropriate for transfer to the Federal Court
under the
former wording of section 6 of the Commonwealth Act, "The position is
strengthened by reason of the amendment and the need for the demonstration of
'special reasons'." In Re An Application for WMs of Certiorari and Mandamus
against the Honourable Daryl Williams,[43]
Anderson J of the Supreme Court of Western Australia also had occasion to
consider the issue of "special reasons" and considered
that the
court:
" ... should not make an order under s.6(3) that the proceedings be
determined by this Court unless I have a high degree of satisfaction that there
are special reasons for doing
so";
it was not " ... possible to construe s.6(3) in a war that would require the
transferring court to inquire at all into the merits of the proceeding (as
distinct perhaps from
its competence) in a search for 'special reasons'. To do
so would be to retain and to exercise jurisdiction as to the merits, contrary
to the main theme of s.6, which is that special federal matters are for the
Federal Court to determine".
- The decision in Re Wakim does not lower the hurdle
faced by a party endeavouring to satisfy the Court that there are "special
reasons" as to why a proceeding
should not be cross-vested. In Telstra
Corporation Ltd v CXA Communications Ltd[44], Chernov J (as he then was) had occasion to
consider the present Commonwealth Act and whether "special issues" existed in
circumstances in which Part IV of the Trade Practices Act issues were
raised by way of defence. His Honour initially was minded to order that the
proceeding not be cross-vested to the Federal
Court. After receiving
submissions from the Attorney-General, His Honour transferred the proceeding.
Chernov J noted the principal
factors submitted by the Attorney-General as to
why there were no "special reasons" for the Supreme Court to retain the
proceeding
as follows:
"(a) The Federal Court has created a list of specialist judges who
hear and determine Part 1V cases. This, it is said, is likely to increase the
prospect of establishing a degree of uniformity in the interpretation of this
special legislation which operates nationally. This would be best achieved
generally by Part IV of the Trade Practices Act 1974 (Cth) being
considered and its meaning determined by, judges specialising in the matter.
(b) The scheme of the legislation is that,
generally, the Federal Court is to
hear "special Federal matters" unless there are special reasons applicable to
the particular proceeding
justifying its retention in the State Court.
(c) The principal dispute between the parties will revolve around the 'special
Federal
matter','notwithstanding that general law claims are also raised by the
parties. The proceeding it is said, is not one where the
Part IV defence has
been brought in as an afterthought, nor can its bona fide be properly
attacked.
(d) Hanimex Pty Ltd v Foster (unreported) Debelle J, 26
March 1996, in which His Honour refused to cross vest the proceeding before him
notwithstanding that it
raised a "special Federal matter" can be readily
distinguished from the present case because there, the question was not aired
until
approximately two years after the issue of proceedings, whereas here, the
point was raised shortly after the proceeding was issued".
These considerations apply with their full force to the present
case.
- Chernov J went on to state:
"In my view, the factor which is of significance in the resolution
of the present question, is that the Federal Court is in a position
to provide
a means whereby a degree of uniformity in the interpretation of Part IV of the
Trade Practices Act 1974 (Cth) could be achieved on a national basis.
It is, I think, desirable to facilitate this object. It is in this context
that the
question., 'What are the special reasons why this court should deal
with the matter', is to be considered."
... The question of
whether there are any 'special reasons' why this Court
should deal with the proceeding is to be considered against the background
of
the statutory intention to which I referred and the circumstances surrounding
this case, including the policy of the Federal Court
to provide a degree of
uniformity in the interpretation of the relevant legislation."
... I take 'special reasons' to mean reasons
which are peculiar to the case
and not general reasons of convenience, a matter to which the legislation
itself refers.
... In my
view, in order for the reasons to be 'special', the circumstances of
the case must be such as to take it out of the mainstream of
the legislative
intent that such cases beheard in the Federal Court."
- I am satisfied that I should adopt the same approach. The
principal factors submitted by the Attorney-General in Telstra
also apply in this proceeding, and the Court ought take the approach
adopted by Chernov J. in Telstra. The trade practices issues are
substantial and have been raised bona fide at an early stage in the proceeding.
They were foreshadowed
in correspondence between the parties before the
plaintiff instituted this proceeding. They go to the heart of the plaintiff's
past
and continuing conduct, including the plaintiff's claims in this
proceeding. The threshold is high: NEC v Iveson. There must be at
least "a high degree of satisfaction that there are special reasons" for this
Court to order that the proceeding
be retained in this Court. The onus is on
the person seeking to retain this proceeding in the Supreme Court to satisfy
the Court
that there are "special reasons". That onus has not been and cannot
be discharged by Computershare. This is not an "exceptional
case" nor are
there "exceptional circumstances" of the type contemplated in the second
reading speeches to the legislation. Furthermore,
to use the words of Chernov
J in Telstra, this proceeding is not "out of the mainstream of
the legislative intent that such cases be heard in the Federal
Court".
- In Matland Holdings Pty Ltd v NTZ Pty Ltd
(after the judgment in Re Wakim), the defendants, in
their defence and counterclaim, alleged that, pursuant to the agreement relied
upon by the plaintiffs, they were
required to purchase petroleum products
exclusively from the second plaintiff, that there were contraventions of ss.45,
45B, 45C and 47 of the Trade Practices Act, and that the agreement was
null and void. As already stated, on the basis of the pleadings I formed the
"impression" and reached
the "practical judgment"[45] that the non-federal claim and the federal claim fell
within one and the same controversy and arose from a common transaction and
a
common "sub-stratum of facts"[46]. I was
satisfied that the pleadings invoked the accrued jurisdiction of the Federal
Court and that there was no obstacle to the
transfer of the proceeding to the
Federal Court arising from the judgment in Re Wakim and
determined to transfer the proceeding.
- There is no dispute that the Part IV matters raised in the
defence and in the counterclaim in the present proceeding involve a special
federal matter. The Part IV matters relate to and are based upon significant
parts of the Bureau Services Agreement, the circumstances in which it was
entered
into, the construction and effect of the Bureau Services Agreement as
alleged by the plaintiff, the enforceability of its terms,
the issues as to
what constitutes confidential information under the Bureau Services Agreement
and matters in equity and the permitted
use of such information. The claims of
Computershare rely in large measure upon its contentions as to the effect of
the Bureau Services
Agreement. It would be a peculiar result if the plaintiff's
conduct (which allegedly contravenes Part IV of the Trade Practices Act)
were not regarded as falling within the same "matter" in the constitutional
sense, as the "special federal matter" in which the
Part IV claims are made.
The "matter" in which the Part IV claim is made includes not only the conduct
of the plaintiff in entering into the Bureau Services Agreement but also giving
effect
to it by seeking to enforce its provisions in this
proceeding.
- I consider that there can be no doubt in this proceeding that
there is a "common sub-stratum of fact" and "common transactions and
facts"
such that all the non Trade Practices Act claims fall within the accrued
jurisdiction of the Federal Court. As all of the claims raised in the
proceeding fall within the
express or accrued jurisdiction of the Federal
Court, the fact that some claims are based on state law does not constitute
"special reasons" as to why the whole or any part of this proceeding
should be heard in the Supreme Court and not transferred to the Federal Court.
It is not possible, nor is it practicable, to deal first, or separately, with
any aspect of the plaintiff's claim having regard
to the Trade Practices
Act issues raised in the defence and counterclaim. Those issues are
integral and directly relevant to any disclosure and/or use of information
which, in any event, the defendants contend is not confidential. I consider
that if severance of any issues was attempted and dealt
with by different
courts the cost of running separate proceedings would dramatically increase;
the administration of separate proceedings
would become gravely complicated;
there would be duplication of discovery, evidence and the calling of witnesses;
the duplication
would result in an overall increase in court time; there would
be an unavoidable overlap of issues; issues of credit would militate
against
any separation of issues; the risk of conflicting findings made on one or more
issues common to the two proceedings would
be unacceptable; and estoppel issues
would be likely. Finally, any issues sought to be separated could not be
finally resolved until
after determination of the Trade Practices Act
issues.
- The only remaining part of the arguments of Computershare that
have any potential compulsion is concerned with the outcome if the
present
proceeding is transferred to the Federal Court but the other proceeding remains
within this court. It was submitted by Computershare
that there was no basis
for transferring the other proceeding to the Federal Court as it did not raise
on any basis a matter that
fell within the accrued jurisdiction of that court.
Nevertheless, in my view it is undesirable that the other proceeding
effectively
be severed. A better course would be for the other proceeding to
be considered by the Federal Court. I am satisfied that the appropriate
way to
deal with this aspect is for this court to order of its own motion that the
present proceeding and the other proceeding be
consolidated and determined at
the same time. I consider that once consolidated, for the reasons already
stated, there are no special
reasons to preclude transferring the consolidated
proceeding to the Federal Court.
- Orders will be made accordingly.
---
[1] See Computershare Ltd v
Perpetual Registrars Ltd and Ors (No 1) (2000) VSC 139.
[2] House of Representatives, Hansard, 22
October 1986 at 2556
[3] See the preamble to the cross-vesting
legislation.
"WHEREAS inconvenience and expense have occasionally been caused to litigants
by jurisdictional limitations in federal, State and
Territory courts, and
whereas it is desirable:
(a) to establish a system of cross-vesting of jurisdiction between those
courts, without detracting from the existing jurisdiction
of any court;
(b) to structure the system in such a way as to ensure as far as practicable
that proceedings concerning matters which, apart from
this Act and any law of a
State relating to cross-vesting of jurisdiction, would be entirely or
substantially within the jurisdiction
(other than any accrued jurisdiction) of
the Federal Court or the Family Court or the jurisdiction of a Supreme Court of
a State
or Territory are instituted and determined in that court, whilst
providing for the determination by one court of federal and State
matters in
appropriate cases; and
(c) if a proceeding is instituted in a court that is not the appropriate court,
to provide a system under which the proceeding will
be transferred to the
appropriate court."
[4] Section 9(2) of the Commonwealth Act which
purported to do so was held invalid in Re Wakim.
[5] See Re Wakim per McHugh J and per
Gummow and Hayne JJ.
[6] The amendments were introduced pursuant to
section 4 (and Schedule) of the Law and Justice legislation Amendment Act
(No. 3) 1992.
[7] Pursuant to the Courts (General
Amendment) Act 1995.
[8] See Re Wakim per Gummow and Hayne JJ
(with whom Gleeson CJ and Gaudron J agreed).
[9] In the present proceeding, federal
jurisdiction is conferred on this Court with respect to matters arising under
Part IV of the Trade Practices Act by s.4(1)(c) of the Cross-vesting Act: see
Re Wilcox; ex parte Venture Industries Pty Ltd (1996) 137 ALR 47;
Collings Construction Co Pty Ltd v ACCC (1998) 43 NSWLR 131.
[10] NEC Information Systems Australia Pty
Ltd v Iveson (1992) 36 FCR 258 at 268 per Black CJ, Lockhart and Gummow JJ.
For this reason, s.6 is supported by the legislative power conferred by
s.77(iii) of
The Constitution, or if necessary the power to make laws with
respect to matters incidental to the execution of any power vested
in the
Federal Judicature (s.51(xxxix)).
[11] See s.15A of the Acts Interpretation
Act 1901 (Cth), and also see e.g. Davies and Jones v Western
Australia [1904] HCA 46; (1904) 2 CLR 29, at 43 per Griffith CJ; Chu Kheng Lim v
Minister for Immigration (1992) 176 CLR 1 at 14 per Mason CJ; Tobacco
Institute of Australia Ltd v Australian Federation of Consumer Organisations
Inc [1992] FCA 630; (1992) 38 FCR 1 at 43 per Hill J (Foster J agreeing on this point).
[12] Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87
at 108 per Latham CJ;
[13] See also s.15A of the Acts
Interpretation Act 1901 (Cth); Bell Group Ltd v Westpac Banking
Corporation [2000] FCA 439 at para 163 per Carr J.
[14] See Pidoto v Victoria [1943] HCA 37; (1943) 68
CLR 87 at 108-111 per Latham CJ.
[15] Victoria v Commonwealth (Industrial
Relations Act case) (1996) 187 CLR 416 at 502-503 per Brennan CJ, Toohey,
Gaudron, McHugh and Gummow JJ.
[16] For example, Victoria v The
Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416 at 502-503;
The Queen v Hughes [2000] HCA 22 at paragraph 43 per Gleeson CJ,
Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Bell Group Ltd v Westpac
Banking Corporation [2000] FCA 439 at paras 160-164, 170-171 per Carr J;
cf. Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 516-520.
In relation to the reading down of State legislation to avoid constitutional
limitations, see Graham v Paterson [1950] HCA 9; (1950) 81 CLR 1 at 16, 20-21, 23,
Cam & Sons Pty Ltd v The Chief Secretary of New South Wales [1951] HCA 59; (1951)
84 CLR 442; Carter v Potato Marketing Board [1951] HCA 60; (1951) 84 CLR 460.
[17] See Pidoto v Victoria [1943] HCA 37; (1943) 68
CLR 87 at 108-111 per Latham CJ, Victoria v The Commonwealth (Industrial
Relations Act case) (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey,
Gaudron, McHugh and Gummow JJ.
[18] Compare Bell Group Ltd v Westpac
Banking Corporation [2000] FCA 439 at para 173.
[19] Compare, for example, rules 10.06, 34.01,
and 47.04-47.05 of the Supreme Court (General Civil Procedure) Rules
1996.
[20] Re Wakim per McHugh J and per
Gummow and Hayne JJ; Matland Holdings Pty Ltd v NTZ Pty Ltd [1999] VSC 333.
[21] See Order 9 of the Supreme Court (General
Civil Procedure) Rules 1996.
[22] See Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR
261 at 267-268 per Dixon J, 277 per Williams J, 285-286 per Fullagar J;
Yrttiaho v Public Curator of Queensland [1971] HCA 29; (1971) 125 CLR 228; Rodway v
The Queen [1990] HCA 19; (1990) 169 CLR 515 at 518-522. This is either because there is
no presumption against retrospectivity in the case of statutes which affect
mere matters
of procedure, or because a procedural statute is ordinarily more
accurately characterised as prospective in operation and effect:
see Rodway
v The Queen [1990] HCA 19; (1990) 169 CLR 515 at 518, 524.
[23] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
at 286 per Fullagar J (dissenting in the result).
[24] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
at 267 per Dixon J, citing Mellish LJ in Republic of Costa Rica v
Erlanger (1876) Ch D 62 at 69; Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515
at 521.
[25] Dowler v Princes Securities Pty
Ltd (1998) 1 SASR 578 at 582 per Sangster J.
[26] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR
515, 521 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ; See also
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 per Dixon J "[G]iven rights and
liabilities fixed by reference to past facts, matters or events, the law
appointing or regulating
the manner in which are to be enforced or their
enjoyment is to be secured by judicial remedy is not within the application of
...
[the] presumption [against retrospectivity]."
[27] See Re Dingam; Ex parte Wagner
[1995] HCA 16; (1995) 183 CLR 323, 348 per Dawson J.
[28] High Court footnote 158 - Stack v
Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261 at 290 per Mason,
Brennan and Deane JJ. See also Philip Morris Inc v Adam P Brown Male
Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR
570.
[29] High Court footnote 159 - [1983] HCA 36; (1983) 154 CLR
261 at 294 per Mason, Brennan and Deane JJ.
[30] footnote 164 In Re Wakim: -
Fencott (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and
Deane JJ.
[31] footnote 165 In Re Wakim: -
Philip Morris (1981) 148 CLR 457 at 512 per Mason J.
[32] footnote 166 In Re Wakim: -
Fencott (1983) 152 CLR 570 at 607 per Mason, Murphy, Brennan and
Deane JJ.
[33] High Court footnote 167 - Philip
Morris (1981) 148 CLR 457 at 512 per Mason J.
[34] High Court footnote 168 - Felton v
Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 373 per Barwick CJ.
[35] High Court footnote 169 - Philip
Morris (1981) 148 CLR 457 at 521 per Murphy J.
[36] High Court footnote 170 - Moorgate
Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 482 per Stephen,
Mason, Aickin and Wilson JJ.
[37] Felton v Mulligan [1971] HCA 39; (1971) 124 CLR
367 at 373 per Barwick CJ.
[38] Philip Morris (1981) 148 CLR 457
at 521 per Murphy J.
[39] Moorgate Tobacco Co Ltd v Philip
Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 482 per Stephen, Mason, Aickin and
Wilson JJ.
[40] (1992) 36 FCR 258
[41] [1993] VicRp 50; (1993) 1 VR 700
[42] [1998] WASC 318 (21 October 1998) at p
9
[43] (1997) 140 FLR 124 at 127
[44] [1998] VSC 72; [1998] 146 FLR 481
[45] See Fencott v Muller (1983) 152
CLR 570 cited in Re Wakim per Hayne and Gummow JJ at 869.
[46] See also Philip Morris Inc v Adam P
Brown Male Fashions Pty Ltd (1981) 148 CLR 457.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/vic/VSC/2000/286.html
