Amann & Ors, Ex parte - Re The Hon A Emmett

[1999] HCATrans 374

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S193 of 1999

In the matter of -

An application for Writs of Prohibition, an Injunction, a Declaration and Damages against THE HONOURABLE ARTHUR EMMETT, a Judge of the Federal Court of Australia

First Respondent

THE JUDGES AND REGISTRARS OF THE FEDERAL COURT OF AUSTRALIA

Second Respondents

MARTIN RUSSELL BROWN, Liquidator of Amann Aviation Pty Limited (in liquidation)

Third Respondent

AMANN AVIATION PTY LIMITED (IN LIQUIDATION)

Fourth Respondent

BP AUSTRALIA LIMITED

Fifth Respondent

Ex parte –

ROBERT OTTO AMANN, VANDA RUSSELL GOULD & CVC INVESTMENTS PTY LIMITED

Applicants/Prosecutors

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 NOVEMBER 1999, AT 1.57 PM

Copyright in the High Court of Australia

_______________________

MR S.D. RARES, SC:   If your Honour pleases, I appear with my learned friend, MR R.G. McHUGH, for the prosecutors.  (instructed by Henry Davis York)

MR A. ROBERTSON, SC:   Your Honour, I appear, if that is the right word, for the third and fourth respondents, with MR M.A. JONES.  (instructed by Nash O’Neill Tomko).  We received an indication that it might assist the Court if we were here, albeit it is an ex parte application.  So, that is why we are here.

HER HONOUR:   Yes, thank you.  And I hold a certificate from the Deputy Registrar who certifies that the first and second respondents in this matter do not wish to be represented at the hearing of this application and will submit to any order of the Court save as to costs.  Yes, Mr Rares.

MR RARES:   This is an application for an order nisi. 

HER HONOUR:   Directed to the Federal Court.

MR RARES:   Directed to the Federal Court.

HER HONOUR:   A course which is not usually taken when there are appellate procedures available.

MR RARES:   What we have said, your Honour, is that there is an order of this Court prohibiting the Federal Court from taking any further step in the proceedings in which a motion has been filed and in which - - -

HER HONOUR:   Taking any further step under the winding up order, does it not.

MR RARES:   In the order for winding up, your Honour, yes.

HER HONOUR:   Under?

MR RARES:   Under the order for winding up, yes, your Honour.  We say that – and not just the Federal Court but the respondents, including those for whom Mr Robertson appears.  The purpose for which the motion was made returnable before the Federal Court was in order to have the Federal Court make an order or a declaration in effect saying that it had no jurisdiction so as to facilitate the invocation of rights under section 11 of the State Jurisdiction Act, as we described it, which is the Federal Courts (State Jurisdiction) Act 1999.  We say that Act is, so far as it might affect my clients and the result of the proceedings that this Court decided in the Re Amann Case, unconstitutional because it interferes with the final result this Court came to.  For example, it would deem to be valid the orders for examination which this Court quashed.  Secondly - - -

HER HONOUR:   Well, that might be a separate – that is a question you can agitate in the Federal Court, can you not?

MR RARES:   No.  Well, your Honour, in our submission - - -

HER HONOUR:   Were those orders quashed?

MR RARES:   The orders for examination were quashed.  That is order 2.

HER HONOUR:   Well, then there is the question whether there is anything there to reactivate but that is a matter that you can agitate in the Federal Court, can you not?

MR RARES:   Well, we have not invoked that proceeding in the Federal Court.  What is being done is an attempt to get an order under the State Jurisdiction Act which says – where Justice Emmett or a Federal Court judge says, “This court has no jurisdiction”.  If that order were obtained, the effect of it, your Honour, is, under section 11(2), to give a status to the liquidator to apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court.

HER HONOUR:   Well, which proceeding?

MR RARES:   The one that was invalidly constituted or commenced in the Federal Court, which this Court has held, in our case, should be prohibited.  What you have in this case is an order that the court expressly decided to let stand, namely, the order for winding up and the appointment of a liquidator in the Federal Court.  So, that is an order of a superior court of record.  It has not been set aside.  Indeed, setting aside was opposed and the court decided it would not set that aside.  So that that is valid and binding.  But the court has then ordered no further steps be taken on it.

HER HONOUR:   Under the winding up - - -

MR RARES:   Under the winding up order. 

HER HONOUR:   And that they not be taken in the Federal Court.

MR RARES:   Pardon?

HER HONOUR:   That no further steps be taken under the winding up order in the Federal Court.

MR RARES:   Yes.  Now, your Honour, one then has a State Act that seeks to say that the order for winding up is to be treated as if it had been made by the Supreme Court.  So that is a Federal Court order, which is extant and valid and binding, is then somehow sought to be picked up and put into a Supreme Court which we say is another interference with the final result of the proceedings where the court ordered that no further steps be taken under that order.

HER HONOUR:   In the Federal Court.

MR RARES:   In the Federal Court.  What is the order that is being prohibited?  That the company be wound up in this court.  There is no other court under which steps can be taken.  The order which is prohibited is in the papers, your Honour, at tab 1, I think, and it is that Amann Aviation be wound up by this court.  And that, Mr Brown – is the second order – that he be appointed the liquidator of the court.  So that it cannot be done anywhere else but in the Federal Court under that order.

HER HONOUR:   Well, I can see your arguments, but why do you want them heard in this Court at this stage?  You have a forum in which they can all be put.  In fact, you have two.

MR RARES:   We have an order of this Court prohibiting any further steps being taken under the order for winding up and we say that what is being done is something - - -

HER HONOUR:   Yes, I know what you say.

MR RARES:   - - - that is to be – has been prohibited.

HER HONOUR:   I know what you say.

MR RARES:   And if the Court has jurisdiction to grant a prohibition, it also has jurisdiction to grant damages on a second application for prohibition, as established in Lord Mayor of London v Cox 2LRHL, because we have had to come back.  We also want - - -

HER HONOUR:   Well, you say you have had to come back.  There are arguments both sides in this matter, Mr Rares, surely, and you still have not yet answered the question why those arguments should not be put in the Federal Court; why an order nisi should be granted or that this Court should perhaps take some other step with respect to the order nisi when you have not given the Federal Court an opportunity to determine the very issues which you are raising. 

MR RARES:   But, your Honour, this is a case in which, in our respectful submission, the Federal Court has taken a step in the proceedings under the order for winding up because the only status which the respondents, for whom my learned friends appear, have, derives from that order.  Therefore, they must be acting under that order and Justice Emmett has made orders directing us to file written submissions and setting the matter down provisionally for hearing on 22 November.

HER HONOUR:   To determine whether or not it should make an order that it has no jurisdiction.

MR RARES:   Yes.  If his Honour, for example, does make such an order, which is within his Honour’s power, as your Honour would know, that will have the effect of affecting our rights in respect of the winding up which we say his Honour - his Honour has a number of choices.  One of them is he can dismiss the motion on the basis that it is an abuse of process because it is seeking to achieve in the Federal Court an aim to give a status in some other proceedings which is irrelevant to the purposes of the Federal Court.

HER HONOUR:   And would that be an order under the winding up?

MR RARES:   It would be an order under the winding up because it would be seeking to give the liquidator who had been appointed by the Federal Court and whose appointment, as it was made, was valid and binding under an existing order, a new status because it would be seeking, in effect, to affect his title, now under another Act.  So that his Honour has two choices.  He can simply say the motion is an abuse of process because there is no purpose served by bringing the motion in the proceedings in the Federal Court that are extant, namely, the winding up proceedings, that is ancillary to that proceeding, because that proceeding was brought without jurisdiction.

So, the Federal Court has no jurisdiction in the matter.  This Court has already held that.  Why are they going to Justice Emmett to say, “Will you declare you have no jurisdiction?”, when this Court has already said the Federal Court did not have that jurisdiction to make a winding up order.  There is nothing else in that matter in front of the Federal Court.  So, his Honour can either dismiss it as an abuse of process or he can take the legitimate step, but one which would be contrary to our interests, of saying, “I have no jurisdiction.  I will stay the matter for want of jurisdiction or I will grant a declaration that I have no jurisdiction” and that gives them status in the State Act even though his Honour was seeking to achieve a different purpose.

Now, that is why we say that we are at a substantial risk by the Federal Court being invited to embark upon an inquiry which it is plain it has no jurisdiction to embark on.

HER HONOUR:   Well, you say it is plain.

MR RARES:   But the Court has held that, 6:1, in the proceedings we brought last time.

HER HONOUR:   It depends what the proceedings are that you are talking about.  It depends on identification of the proceedings, surely.

MR RARES:   But, your Honour, the order sought in the proceedings which has now passed into a res judicata and the entered judgment of the Federal Court is that the company be wound up, that is, the rights were finally determined by that order were that the company be wound up by the Federal Court pursuant to a jurisdiction in purported to exercise.  In Re Amann, the Court held, as a matter of decision, that the Federal Court had no jurisdiction but, as a matter of discretion, decided not to set aside the winding up order but to prohibit further steps under it.

There was no other jurisdiction which the Court was either asked to exercise or exercised in the proceedings than the making of an order for winding up under the Corporations Law pursuant to the scheme that was held unconstitutional in Re Amann.  So that there is nothing before the Federal Court which it is seized of apart from the fact that it has an order that has not been set aside.

What is being done is that vehicle is being used in a way that is seeking to affect my clients’ rights who have sought to bring these proceedings and brought the previous proceedings to prevent their rights being interfered with by orders made without jurisdiction.  We said the winding up was without jurisdiction.  We said the examination was without jurisdiction.  They have sued us in the Supreme Court which we say is also an action now, the title to which is not constituted properly because there was no original jurisdiction to make the winding up order. 

All of those questions become one matter and they can only be conveniently and properly and finally determined by this Court and, in our respectful submission, they raise important constitutional questions which ought to be determined by this Court.  I mean, my clients have already won once in this Court to have an order that the Federal Court proceedings – that no steps be taken under the Federal Court proceedings.  There was nothing else that could be done - - -

HER HONOUR:   No, no, that no steps be taken under the winding up order in the Federal Court.

MR RARES:   I am sorry, yes, but there was nowhere else that steps, we submit, could be taken against him after that.

HER HONOUR:   Well, it may well have been that there were places that steps could have been taken.

MR RARES:   Well, what we want to say is that this Court, which is the only tribunal that can finally determine that question - - -

HER HONOUR:   Not necessarily.

MR RARES:   - - - ought to determine.

HER HONOUR:   That is not correct.  The Federal Court can determine it.

MR RARES:   Not finally.

HER HONOUR:   Of course it can.  Judgments are not provisional orders until this Court intervenes.

MR RARES:   No, I am not suggesting they are.

HER HONOUR:   That is the purport of your submissions, is it not, that they are provisional orders until this Court intervenes?

MR RARES:   No, your Honour, I was not seeking to say that.  I may have conveyed an impression which I did not intend, but what I was seeking to say was that where one is dealing with a jurisdictional question of the instant kind, only this Court can ultimately finally determine where the rights as has been held cases like GCW, I think, it is in about (1951) CLR, but while there is a Federal Court order, that - - -

HER HONOUR:   No, I think you should focus on the question though why one would issue prohibition to a superior court when there is an opportunity for you to put your argument in that court.

MR RARES:   Your Honour, where one has, as we do in this case, a prohibition directed to the Court prohibiting it from taking steps under the order for winding up, and our argument is - - -

HER HONOUR:   And you say that is what is involved and, clearly, the other side say that is not what is involved.

MR RARES:   Yes, but it is inappropriate, in our submission, where it is the court itself that is involved in that matter in the event that it is wrong and it breaches the order for prohibition, it is not appropriate to subject it to that embarrassment.

HER HONOUR:   It is not appropriate except in most exceptional circumstances to issue prerogative writs to a superior court.

MR RARES:   Your Honour, where one has already a prerogative writ issued, and what we are seeking to do is to uphold the effect of that writ, so that is our argument, and where it involves questions of constitutional interpretations to the validity of the State legislation as to the status and as to the fact that you have this bifurcated dispute because you have a dispute in the Federal Court and you have a dispute in the Supreme Court, so that you have those two forums running, and you have a matter which clearly is one that is able to be determined in one tribunal and in a way which will finally determine the rights of parties, then this Court, albeit unusual, is a proper court to which to make this application. 

It may be that your Honour took the view that rather than issuing an order nisi at this stage, one referred it to the Full Court, as was done in Re Amann, so that one had the question as to whether the appropriate relief was to issue the writ or to give other relief, such as an injunction or the declarations that we seek, then that would, in our submission, be open to the Court to do.  I mean, there is jurisdiction, in the sense - - -

HER HONOUR:   The problem you have is one of establishing that a superior court does not have jurisdiction inherent, if you like, to rule that it does not have jurisdiction.

MR RARES:   There is undoubtedly jurisdiction in any court to rule whether or not it has jurisdiction, an implied or inherent jurisdiction, that is undoubtedly so, and that has been established by decisions of this Court.  The question is where there is a writ of prohibition, based on ratio - - -

HER HONOUR:   That is not a question of jurisdiction which grounds prerogative relief.  That is a question as to obedience to a court order.

MR RARES:   That is one reason why we are here, your Honour.

HER HONOUR:   Yes, but you have to say that the Federal Court cannot itself determine that question.  To make out any basis for the grant of prohibition, you have to go so far as to say that the Federal Court has not got jurisdiction to determine for itself what it may or may not do in obedience to a court order – to prohibition, or to determine whether or not it has jurisdiction.

MR RARES:   But there are two aspects to our jurisdictional basis.  The first is, we say, this Court has made an order and it cannot do it – the Federal Court cannot act and, secondly, there is no matter before the Federal Court.  What is the controversy?

HER HONOUR:   I understand that.

MR RARES:   Again, we are entitled to apply for a writ of prohibition if there is no matter.

HER HONOUR:   And you have done so.

MR RARES:   Your Honour, part of this is not due to our making.  One goes back to the reasons of Justices Gummow and Hayne, which the majority of the Court adopted, and they commented on the curious result that was going to be produced in paragraph [164] of the joint reasons, as a result of the particular order that was made and which your Honour then amended on 19 August which was that – their Honours said:

if prohibition goes to prohibit further steps under one of those orders - the order for winding up - a curious result will ensue:  an order the company be wound up by the court would stand, but no step could be taken in the Federal Court to give further effect to it.  In our view, prohibition should issue to prohibit further steps in the Federal Court under the order for winding up.  It was an order made without jurisdiction and further effect should not now be given to it by that court.

Now, if that court cannot give effect to it - - -

HER HONOUR:   I understand.  I have heard that.  I am sure you do not want to spend a lot of time on that point.

MR RARES:   No, I do not want to weary your Honour on it.  Given that we are being pressed both in that court and in the Supreme Court, and we have the benefit of an order of this Court which was say has that effect that we have contended - - -

HER HONOUR:   Which, you say, has that effect.

MR RARES:   Yes, which we say, and given - - -

HER HONOUR:   And which is disputed.

MR RARES:   There is no doubt about that.  It is both proper and convenient in the administration of justice that the matter ought to be dealt with by this Court which, having regard to the issues – I mean, your Honour, as Sir Garfield Barwick said in the Western Australian Football League Case 143 CLR, a stranger can apply for prohibition.  These people, none of them are strangers, all of them are affected by the orders in one way or another and by the Supreme Court proceedings, and we have been brought to the Federal Court under an order Justice Emmett made that we be given notice as defendants in the Supreme Court proceedings because it was going to affect our rights.

Your Honour, we cannot seek to remove it under section 40 of Judiciary Act, because we are not a party to the winding up proceedings themselves, none of my clients are, so we are seeking to have the Court intervene under the prerogative to protect us from having a jurisdiction exercised against us which may miscarry and which has already been exercised against us.

HER HONOUR:   Which may miscarry.

MR RARES:   Yes.

HER HONOUR:   Well, you see, that is your difficulty because it has not.

MR RARES:   But if it does then a status is conferred.

HER HONOUR:   If it does then you may have other options. 

MR RARES:   The second thing that this raises is the constitutionality of the State legislation.

HER HONOUR:   A matter which you could also raise before Justice Emmett.

MR RARES:   Yes, but that is a matter of significant national importance and which ultimately would need to be decided by this Court in one or other proceeding.  Why is it not appropriate that this Court takes an early opportunity to decide a matter of far-reaching national significance in a case which rightly raises that question and in which there is a real issue between the parties.

HER HONOUR:   It may have something to do with the nature of the relief you seek, Mr Rares.

MR RARES:   Well, part of the relief we seek are declaratory orders.

HER HONOUR:   I mean, you seek prerogative relief at a time when it is difficult to identify an assertion – if not impossible, I would have thought, to identify an assertion by the Federal Court of a jurisdiction that it does not have.

MR RARES:   Your Honour, the court has embarked on a hearing and determination of the motion my friends have brought.  Part of that exercise involves the jurisdiction but it is the motion they are seeking to have heard and determined.  Their motion is behind tab - - -

HER HONOUR:   I have read that.  Where are the orders that you seek?

MR RARES:   Your Honour, they are in the draft order that we filed yesterday.  I have another copy if that is - - -

HER HONOUR:   Do not trouble yourself, Mr Rares, I will find it.  I have it here.

MR RARES:   As your Honour says, the first claim is a prohibition against the court - - -

HER HONOUR:   Yes, exactly, but it would raise precisely the same question.  One could give you, for example, your prohibition as formulated

in question 1(a) and the question would still remain, the question you wish to agitate would still remain.

MR RARES:   But if your Honour gave us question 1(c), it would not

HER HONOUR:   I certainly would not give you question 1(c).  I think that is a different question altogether.  That is the civil action.

MR RARES:   Yes.  Your Honour, the declaration that we seek in (e) - - -

HER HONOUR:   Well, that is later.  All you are here for today is an order nisi for prohibition in circumstances in which you have to assert that the Federal Court has not jurisdiction to say it has not jurisdiction or that it has not jurisdiction to do anything.

MR RARES:   We say it has not jurisdiction to make the orders sought in the notice of motion.

HER HONOUR:   Yes.  Yes, I understand what you say.

MR RARES:   And that is what we want to prohibit.

HER HONOUR:   I understand.

MR RARES:   And we respectfully submit it is a necessary consequence of this Court’s finding in Re Amann.

HER HONOUR:   Yes.  Well, I have heard that.

MR RARES:   I do not want to weary your Honour.  Those are our submissions.

HER HONOUR:   Yes, thank you, Mr Rares.  Did you wish to say anything?

MR ROBERTSON:   No, your Honour.  I was going to say things if the Court got to the point of looking at the draft orders but I am not sure that your Honour has got to that point.

HER HONOUR:   No.  I would not propose, at this stage, to make an order nisi or to refer the matter to the Full Court.  What I would propose to do is to stand the application over.  As I see it, that does not – you may then wish to come back with reformulated orders.  I stand the matter over pending the decision of Mr Justice Emmett.  That will at least save you some things but that is all I would do at this stage, Mr Rares.

MR RARES:   If your Honour pleases.

HER HONOUR:   I mean, it may be futile.  You know, it may disappear; it may not, but it can be re-listed on short notice if need be.  Thank you.  Well, I will simply adjourn this application to be re-listed on the application of ‑ ‑ ‑

MR RARES:   The prosecutors.

HER HONOUR:   Yes, I suppose you are prosecutors before the - - -

MR RARES:   At least at this stage we are seeking to be.

HER HONOUR:   Yes.  I was going to say on the motion of the applicants.

MR RARES:   If your Honour pleases.  Would your Honour certify for counsel.

HER HONOUR:   Yes, I will certainly do that.  Do I have to certify for senior counsel or is that sufficient?

MR RARES:   We would like you to if you have to, your Honour.

MR ROBERTSON:   I think that works the other way around.  I think if you certify for counsel that covers everybody unless somebody takes the point that it was not appropriate for senior counsel.

HER HONOUR:   Thank you, Mr Robertson.  Well, I will certify for the attendance of counsel and otherwise adjourn the matter to be re-listed upon application.

AT 2.28 PM THE MATTER WAS ADJOURNED