GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
Matter No M20/2000
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION APPLICANT
AND
EDENSOR NOMINEES PTY LTD & ORS RESPONDENTS
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 Date of Order: 30 August 2000 Date of Publication of Reasons: 8 February 2001 M20/2000
ORDER
1. Special leave to appeal granted, and appeal treated as instituted and heard instanter and allowed.
2. Set aside paragraphs 1 and 2 of the declarations made by the Full Court of the Federal Court of Australia on 9 March 2000.
3. Remit the matter to the Full Court of the Federal Court of Australia for further hearing and determination.
4. The respondents to pay the appellant's costs.
On appeal from the Federal Court of Australia
Representation:
D F Jackson QC with S D Rares SC and R D Strong for the applicant (instructed by Australian Securities and Investments Commission) P R Hayes QC with I D Martindale for the first respondent (instructed by Clayton Utz)
N J Young QC with M C Garner and D J Batt for the second to seventh respondents (instructed by Freehills)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and J S Stellios intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
D Graham QC, Solicitor-General for the State of Victoria with S G E McLeish intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)
B M Selway QC, Solicitor-General for the State of South Australia with R F Gray intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)
M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
Matter No M23/2000
EDENSOR NOMINEES PTY LTD APPLICANT
AND
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ORS RESPONDENTS
Edensor Nominees Pty Ltd v Australian Securities and Investments Commission Date of Order: 30 August 2000 Date of Publication of Reasons: 8 February 2001 M23/2000
ORDER
Application dismissed.
On appeal from the Federal Court of Australia
Representation:
P R Hayes QC with I D Martindale for the applicant (instructed by Clayton Utz)
S D Rares SC with R D Strong for the first respondent (instructed by Australian Securities and Investments Commission)
N J Young QC with M C Garner and D J Batt…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1
Case
[2001] HCA 1
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the Australian Securities and Investments Commission (ASIC) against Edensor Nominees Pty Ltd and the Yandal Gold interests. The dispute concerned the validity of an order made by the Full Court of the Federal Court of Australia. The central question revolved around whether the Federal Court possessed the necessary power under the Corporations Law to make the specific order in question, particularly in light of previous High Court decisions concerning the exercise of State law by federal courts.
The legal issues before the High Court included whether the Federal Court was exercising federal or State jurisdiction when making the order, whether ASIC could be considered "the Commonwealth" for the purposes of certain jurisdictional provisions, and whether the remedies sought by ASIC constituted an injunction or declaration. The High Court was required to determine if the legislative provisions relied upon by the Federal Court were sufficient to grant it the power to make the contested order, especially after the Full Court had severed that order for separate consideration.
The High Court, in allowing the appeal, reasoned that while the Full Court was correct in identifying the Corporations Law as the source of power for the order, the legislative provisions, in the aftermath of *Wakim*, were insufficient to confer that power. Consequently, the order made by the Full Court was deemed invalid not due to a lack of jurisdiction over the parties, but due to a lack of power to make that specific order. The High Court set aside the declarations made by the Full Court and remitted the matter for further hearing and determination, acknowledging that the Federal Court retained jurisdiction to hear the remaining grounds of appeal.
Orders
Orders of the court
1. Special leave to appeal granted, and appeal treated as instituted and
heard instanter and allowed.
2. Set aside paragraphs 1 and 2 of the declarations made by the
Full Court of the Federal Court of Australia on 9 March 2000.
3. Remit the matter to the Full Court of the Federal Court of Australia
for further hearing and determination.
4. The respondents to pay the appellant's costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ, GAUDRON AND GUMMOW JJ
HAYNE AND CALLINAN JJ
The Full Court was therefore correct to conclude that the power to make order 7, if it was to be found at all, had to be found under the Corporations Law. Unfortunately, in my view, in the aftermath of Wakim, the legislative provisions propounded fall short of providing the necessary power. There being no other way of circumventing this conclusion, order 7 was, in my view, invalid. Edensor and the Yandal Gold interests were entitled, in the Full Court, to relief on that footing. They were entitled to such relief, not on the basis that the Federal Court lacked jurisdiction over the parties and the matter but on the basis that it lacked power to make order 7 as it did.Conclusion: concurrence and variation of orders It follows that, on my approach, it was necessary for this Court to set aside the two declarations made by the Full Court in the terms in which those declarations were expressed. That is why I joined in the orders of this Court to that end. I also joined in this Court's order that the Full Court should proceed with the hearing and determination of the appeal to it by Edensor on the merits raised by the appeal. To give effect to these conclusions, I concurred in all of the orders announced by this Court, except that order providing that Edensor and the Yandal Gold interests should pay the costs of the proceedings in this Court. Once the Full Court severed order 7 for separate consideration, it was basically correct, so far as it went, in its original reasoning which addressed the power of the Federal Court to make that order. It was then misled into formalising its record in terms of erroneous declarations of a want of jurisdiction so as to facilitate the application of the State Jurisdiction Act. But this occurred because of the submissions of ASIC. It occurred in the face of the contrary submissions of the opposing parties. In logic, and in law, the original reasoning of the Full Court required it to set aside order 7. The Full Court, if minded to sever the challenge to that order from the other grounds of appeal (still undetermined) should have afforded appropriate relief. It should have relisted the appeal for determination of such of the remaining grounds of appeal as raised questions within its jurisdiction over the parties and the matter. Clearly, to the extent that the Federal Court has jurisdiction on any basis, including the jurisdiction to determine its own jurisdiction, it must fully discharge that jurisdiction once it is invoked. This would be so even if the State Jurisdiction Act in its various provisions dealing with "ineffective judgment[s]"[239] were constitutionally valid. Because, in my opinion, it is not[240], the duty to exercise whatever jurisdiction the Federal Court has is paramount, unqualified and necessary. It should be performed with eyes firmly fixed on the Constitution, the Federal Court Act and other federal law. It should be discharged without undue attention to the siren song of the State Jurisdiction Act that, on this occasion, seems to have diverted the Full Court from completing its functions by making orders consistent with its original reasoning.[239]State Jurisdiction Act, ss 3, 6-8, 10.[240]Re Macks; Ex parte Saint [2000] HCA 62 at [307]-[310].Orders
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GAUDRON AND GUMMOW JJ,
HAYNE AND CALLINAN JJ