Cambridge Consolidated NL v Zephyr Minerals NL

[1999] FCA 224

FEDERAL COURT OF AUSTRALIA

Cambridge Consolidated NL v Zephyr Minerals NL [1999] FCA224

PRACTICE AND PROCEDURE – whether application by notice of motion to amend defence is a separate “proceeding” - jurisdiction  - powers of Judicial Registrar

Federal Court of Australia Act 1976  (Cth), s 18AB

Federal Court Rules Order 79

Harris  v Caladine (1991) 172 CLR 84
Fiorentino v Irons [Federal Court of Australia, NG 3294 of 1997, 12 Nov, unreported]
Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446

CAMBRIDGE CONSOLIDATED NLv
ZEPHYR MINERALS NL and ANDREW JAMES DRUMMOND and
AUSTRALIAN KIMBERLEY DIAMONDS NL and ZEPHYR MINERALS NL
and AUSTRALIAN KIMBERLEY DIAMONDS NL and CAMBRIDGE CONSOLIDATED NL and CAMBRIDGE GULF HOLDINGS NL and BRIAN JAMES DENNIS CONWAY

WAG 67 of 1995

BOON JR

PERTH
11 FEBRUARY 1999

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 67 OF 1999

BETWEEN:

CAMBRIDGE CONSOLIDATED NL
Applicant

AND:

ZEPHYR MINERALS NL
First Respondent

ANDREW JAMES DRUMMOND
Second Respondent

AUSTRALIAN KIMBERLEY DIAMONDS NL
Third Respondent

ZEPHYR MINERALS NL
First Cross-Claimant

AUSTRALIAN KIMBERLEY DIAMONDS NL
Second Cross-Claimant

CAMBRIDGE CONSOLIDATED NL
First Cross-Respondent

CAMBRIDGE GULF HOLDINGS NL
Second Cross-Respondent

BRIAN JAMES DENNIS CONWAY
Third Cross-Respondent

JUDGE:

JUDICIAL REGISTRAR BOON

DATE OF ORDER:

11 FEBRUARY 1999

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.        The application by way of Notice of Motion dated 30 October 1998 for an order granting leave to the First Cross Respondent to file a Defence to the Re Amended Cross Claim dated 30 October 1998 falls within the jurisdiction of the Court as presently constituted.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 67 OF 1999

BETWEEN:

CAMBRIDGE CONSOLIDATED NL
Applicant

AND:

ZEPHYR MINERALS NL
First Respondent

ANDREW JAMES DRUMMOND
Second Respondent

AUSTRALIAN KIMBERLEY DIAMONDS NL
Third Respondent

ZEPHYR MINERALS NL
First Cross-Claimant

AUSTRALIAN KIMBERLEY DIAMONDS NL
Second Cross-Claimant

CAMBRIDGE CONSOLIDATED NL
First Cross-Respondent

CAMBRIDGE GULF HOLDINGS NL
Second Cross-Respondent

BRIAN JAMES DENNIS CONWAY
Third Cross-Respondent

JUDGE:	JUDICIAL REGISTRAR BOON
DATE:	11 FEBRUARY 1999
PLACE:	PERTH

REASONS FOR DECISION

Introduction

1. On 30 October 1998 the First Cross Respondent in this matter filed an application by Notice of Motion seeking orders as follows:

   “(1) the First Cross Respondent be granted leave to file a Defence to Re Amended Cross Claim in terms of the attached minute;

   (2)the minute to stand as the First Cross Respondent’s Defence to Re Amended Cross Claim and service be dispensed with;

   (3)the costs incurred thrown away by the withdrawal of the admission be the Cross Claimants in any event;

   (4)the cost of the application be the Cross Claimants in any event”. 

1. The original proceedings in this matter concerned claims for damages arising, inter alia, from the mining of diamonds and alleged breaches of a mining agreement.  The First Cross Respondent is seeking to withdraw an admission that during 1993 it located diamonds within the relevant Tenement Area and to substitute the words “does not admit  that it located the Diamonds within the Tenement Area” in its defence.

2. After the Notice of Motion was filed his Honour Justice Lee referred the matter to me Pursuant Order 79 Rule 3 of the Federal Court Rules. 

3. The matter first became before me on 13 November 1998.  Mr D B Shaw appeared for the Applicant and First Cross Respondent, and Mr A Carr appeared for the First Respondent and First Cross Claimant.  On that date I made orders for the filing and serving of affidavits in relation to the application and adjourned the matter to 23 December 1998.  The matter came before me again on 23 December 1998. In the meantime, on 2 December 1998, a notice of change of solicitors had being filed on behalf of the Applicant and First Cross Respondent.

4. On 23 December 1998 Mr M P Gentilli appeared for the Applicant and First Cross Respondent, and Mr R J Price, instructed by Mr Carr, appeared for the First Respondent and First Cross Claimant. On that day, both counsel indicated that in their view it appeared that I had no jurisdiction to hear the matter. Counsel referred me to the provisions of Section 18AB of the Federal Court of Australia Act 1976 (as amended) which states in part as follows:

   “18AB(1A)        The Rules of Court may delegate to the Judicial Registrars, either generally or as otherwise provided in the Rules, all or any of the Court’s powers in relation to proceedings in the Court in the exercise of the Court’s original jurisdiction, except:

   (a)proceedings in which the amount sought, or the value of the subject matter, is more than $100,000; and

   (b)proceedings for a prerogative writ or an order in the nature of a prerogative writ; and

   (c)proceedings that involve a claim under the Workplace Relations Act 1996; and

   (d)proceedings arising under the Native Title Act 1993.

   Powers of the Court in relation to proceedings mentioned in any of paragraphs (a) to (e) may, however, be delegated to Judicial Registrars by the Rules of Court if this is expressly provided for by another provision of this or any other Act”.

5. Both Mr Gentilli and Mr Price submitted that as the value of the subject matter of the original claim was in the region of several million dollars, I did not have jurisdiction. This they said was because under the provisions of Section 18AB sub-para (1)(a) only proceedings in which the amount sought, or the value of the subject matter, is no more than $100,000.00 dollars may be delegated to a Judicial Registrar. Neither Mr Gentilli nor Mr Price wished to make further submissions in relation to that matter, but indicated that in their view it appeared that section 18AB precluded the delegation of this matter to me.

6. On 23 December 1998 I adjourned the hearing of the Notice of Motion to consider the  jurisdictional question.

7. Division 2 of the part II of the Federal Court of Australia Act 1976 deals with Judicial Registrars. Section 18AB sets out the powers of judicial registrars.

8. Sections 18AC and 18AD deal respectively with the review of decisions by Judicial Registrars and the exercise by the Court of delegated powers respectively.

9. Order 79 of the Federal Court Rules deals with the delegation of powers to Judicial Registrars. Order 79 Rule 1 sets out the general delegation of powers to Judicial Registrars in a manner which is substantially the same as the provisions of section 18AB of the Act. His Honour Justice Lee has delegated the present matter to me pursuant to Order 79 Rule 3 of the Federal Court Rules which states as follows:

   “Exercise of Powers by Judicial Registrars

   (3) a Judicial Registrar may exercise the powers delegated to the Judicial Registrar under this order in a proceeding, or part of a proceeding, referred to the Judicial Registrar by the Court or a Judge”.

10. The question to be decided in this case is whether the matter referred to me by his Honour Justice Lee, namely, the application by Notice of Motion for an order granting leave to the First Cross Respondent to file a Defence to a Re Amended Cross Claim, is a proceeding in which the amount sought or the value of the subject matter is more than $100,000.00 dollars, as argued by counsel for the Applicant and First Cross Respondent, and Counsel for the First Respondent and First Cross Claimant.

11. I am not aware of any case in which this question has previously been decided.  The question of the validity of delegation of some part of the jurisdiction of Federal Courts to its officers (including Judicial Registrars) has from time to time being considered by the High Court (see for example Harris v Caladine (1991) 172 CLR 84). The present case is different in that it is not argued that section 18AB is invalid. It simply concerns a question of statutory interpretation: namely, as to whether the matter delegated to me falls within the limits set out in that section.

12. Section 4 of the Act states in part as follows:

    “4.)   In this Act, unless the contrary intention appears: 
    Proceeding means a proceeding in a Court, whether between parties or not, and includes an incidental proceeding in the course of or in connexion with, a proceeding, and also includes an appeal.. .

13. In the case of Fiorentino v Irons (Federal Court of Australia, NG 3204 of 1997, 12 November, unreported) Foster J noted the definition of the word “proceeding” in Section 4 of the Act and stated as follows (at page 6):

    “This is a very wide definition indeed.  I am satisfied that for present purposes one can regard the original application for the issue of the summons in this matter as a proceeding in the Court and one can regard the current application by Notice of Motion for leave for the service of that summons outside of Australia as a proceeding incidental to the original application or one relevantly in connexon with it.  One can also regard the  contemplated examination of Mr Dwyer as a proceeding incidental to or connected with the original application.  Indeed, I am persuaded that one need not look to these aspects of the definition in order to characterise the current proceedings for the obtaining of leave or the contemplated proceedings for examination as being proceedings of an ancillary kind.  The definition is sufficiently wide, in my view, to confer upon them the title of proceeding in their own right.”

14. His Honour went on to say that he was fortified by the existence of comments by other judges of the Court in the cases of  re Interchase Corporation Ltd (1996) 68FCR481 (in which Keifel J referred to the term “proceeding” in a manner indicating that she regarded it as of being considerable breadth), and in Pasdale Pty v Concrete Constructions (1995) 59FCR446, in adopting the approach that the term “proceeding” can be given the wide meanings to which he had made reference.

15. In Pasdale Pty Ltd  v Concrete Constructions Finlay J stated in passing as follows (at page 448):

    “It is the case that “proceeding” can, as a matter of express definition or of statutory construction in a given setting, both include or exclude the initiation in a Court of the step in an application or Action. The definition of “proceeding” in the Federal Court of Australia Act 1976 Section 3 [sic] for example, in its reference to “an incidental in proceeding in the course of or in connection with, a proceeding”, is at apt to encompass a Motion for security for costs”.

16. It is my view, upon an examination of these cases, that the matter referred to me by His Honour Justice Lee pursuant to Order 79 Rule 3, namely the application by Notice of Motion, is a “proceeding” in its own right within the definition in Section 4 of the Federal Court Act. If the application is regarded in this way, it does not fall outside the scope of Section 18AB because it is not a proceeding in which the amount sought, or the value of the subject matter, is more than $100,000.00. In these circumstances, I am of the view that this matter is properly delegated to me and that I should proceed to hear the application.

I certify that the preceding five (5) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Boon

Associate:        

Dated:                10 February 1999

Counsel for the Applicant:	Mr N P Gentilli
Solicitor for the Applicant:	Jackson McDonald
Counsel for the First  Respondent and First Cross Claimant:	Mr R J Price
Solicitor for the Respondent and First Cross Claimant:	Freehill Hollingdale & Page
Date of Hearing:	23 December 1998
Date of Judgment:	10 February 1999