CFMEU v AIRC & Anor

[2000] HCATrans 502

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M20 of 2000

B e t w e e n –

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

Applicant

and

EDENSOR NOMINEES PTY LTD

First Respondent

YANDAL GOLD PTY LTD

Second Respondent

YANDAL GOLD HOLDINGS PTY LTD

Third Respondent

NORMANDY MINING LIMITED

Fourth Respondent

NORMANDY MINING FINANCE LIMITED

Fifth Respondent

NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD

Sixth Respondent

NORMANDY MINING HOLDINGS PTY LTD

Seventh Respondent

Office of the Registry  
  Melbourne  No M23 of 2000

B e t w e e n -

EDENSOR NOMINEES PTY LTD

Applicant

and

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

First Respondent

YANDAL GOLD PTY LTD

Second Respondent

YANDAL GOLD HOLDINGS PTY LTD

Third Respondent

NORMANDY MINING LIMITED

Fourth Respondent

NORMANDY MINING FINANCE LIMITED

Fifth Respondent

NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD

Sixth Respondent

NORMANDY MINING HOLDINGS PTY LTD

Seventh Respondent

Office of the Registry  
  Melbourne  No M24 of 2000

B e t w e e n -

YANDAL GOLD PTY LTD

First Applicant

YANDAL GOLD HOLDINGS PTY LTD

Second Applicant

NORMANDY MINING LIMITED

Third Applicant

NORMANDY MINING FINANCE LIMITED

Fourth Applicant

NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD

Fifth Applicant

NORMANDY MINING HOLDINGS PTY LTD

Sixth Applicant

and

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

First Respondent

EDENSOR NOMINEES PTY LTD

Second Respondent

Office of the Registry
  Melbourne  No M35 of 2000

In the matter of –

Applications for Writs of Certiorari and Mandamus against THE HONOURABLE DONALD GRAHAM HILL, THE HONOURABLE ROSS ALAN SUNDBERG and THE HONOURABLE JOHN RONALD MANSFIELD, Judges of the Federal Court of Australia sitting as a Full Court

First Respondents

THE JUDGES AND REGISTRARS OF THE FEDERAL COURT OF AUSTRALIA

Second Respondents

EDENSOR NOMINEES PTY LTD

Third Respondent

YANDAL GOLD PTY LTD, YANDAL GOLD HOLDINGS PTY LTD, NORMANDY MINING LIMITED, NORMANDY MINING FINANCE LIMITED, NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD and NORMANDY MINING HOLDINGS PTY LTD

Fourth Respondents

Ex parte –

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

Prosecutor/Applicant

Office of the Registry
  Melbourne  No M38 of 2000

In the matter of –

Applications for Writs of Certiorari and Mandamus against THE HONOURABLE JUSTICES DONALD GRAHAM HILL, ROSS ALAN SUNDBERG and JOHN RONALD MANSFIELD, sitting as the Full Court of the Federal Court of Australia

First Respondents

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

Second Respondent

YANDAL GOLD PTY LTD, YANDAL GOLD HOLDINGS PTY LTD, NORMANDY MINING LIMITED, NORMANDY MINING FINANCE LIMITED, NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD and NORMANDY MINING HOLDINGS PTY LTD

Third Respondents

Ex parte –

EDENSOR NOMINEES PTY LTD

Prosecutor/Applicant

Office of the Registry
  Melbourne  No M39 of 2000

In the matter of –

Applications for Writs of Certiorari and Mandamus against THE HONOURABLE JUSTICES DONALD GRAHAM HILL, ROSS ALAN SUNDBERG and JOHN RONALD MANSFIELD, sitting as the Full Court of the Federal Court of Australia

First Respondents

AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

Second Respondent

EDENSOR NOMINEES PTY LTD

Third Respondent

Ex parte –

YANDAL GOLD PTY LTD, YANDAL GOLD HOLDINGS PTY LTD, NORMANDY MINING LIMITED, NORMANDY MINING FINANCE LIMITED, NORMANDY CONSOLIDATED GOLD HOLDINGS PTY LTD and NORMANDY MINING HOLDINGS PTY LTD

Prosecutor/Applicant

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 30 AUGUST 2000, AT 10.22 AM

(Continued from 29/8/00)

Copyright in the High Court of Australia

___________________

GLEESON CJ:   Yes, Mr Hayes.

MR HAYES:   To start, can I go back to a couple of questions asked of me yesterday afternoon. Justice Gummow put to me a number of questions about where, in the tree, my argument was and particularly the source of jurisdiction under the Constitution. What we say to that, your Honour, to the Court, is that in the case of the Federal Court relevantly here the source of jurisdiction would be normally section 39B of the Judiciary Act. In the ACT Act, as part of the co‑operative scheme by section 49(1)(d), its operation was abrogated; it was excluded by that section. When you look at the ACT Act in section 56 and you also look at the stated purpose of this being one uniform scheme appearing in all of the complimentary Acts, the apparent intention, we submit, was that the only source of jurisdiction to deal with matters under the Corporations Laws of the various States and Territories was as conferred by the legislation making up that statutory scheme.

KIRBY J:   You are keeping to your distinction between jurisdiction and power?

MR HAYES:   Yes, your Honour, and I want to then move on to the fact that in the questions put to me by Justice Gummow in particular, what I have to face is that the definition in section 58AA is but a definition and you have to go back to the jurisdiction‑conferring provisions under the legislation making up the co‑operative scheme.

KIRBY J:   I just wonder if you are not getting off what at least at the moment I think is the strength of your argument, the distinction between jurisdiction and power.  The Federal Court has before it – just let us assume for the moment the submission is for the purposes of the Commonwealth - has the Commonwealth therefore before it.  To argue then that it does not have jurisdiction over that party is very difficult, it seems to me, virtually impossible – impossible.  So that is why at least I understood your submission to be:  let there be jurisdiction, but there is no relevant power to do

anything with it.  There is authority over the parties but not the power to do anything with their jurisdiction.

MR HAYES:   I do put the matter the way your Honour just articulated.  The slight complication is that in the co-operative scheme, if it had operated fully as intended, the source of jurisdiction to deal with Corporations Law matters would have been through the co-operative legislation. Section 39B, not being intended to operate. Section 11(7) of the ASIC Act not being itself a conferral of jurisdiction.  The source was the various provisions in the cooperative scheme.  Reflecting that, the definition of “Court” in section 58AA, when we come to the issue of power, reflects the underlying source of the jurisdiction and explains the meaning of the expression “the jurisdiction of this jurisdiction”. 

What we have to face then is that, in the light of the decision in In re Wakim, there was not, as it turned out, at the time Justice Merkel made order 7, the envisaged source of jurisdiction.  But we accept there was jurisdiction.  That jurisdiction, apart from anything else was accrued jurisdiction by reason of there being trade practices claims, for example, under the Act before the court, and there being a common substratum of fact.  But I was just wishing to deal with matters that Justice Gummow put to me that I was probably ‑ ‑ ‑

GUMMOW J:   Were you saying that 39B was excluded in its operation here by something in some other Act?

MR HAYES:   Yes.

GUMMOW J:   What section?

MR HAYES: Section 49(1)(d), your Honour, of the ACT Act or the Corporations Act, and then you should also look at section 56(2) of the ACT Act, and then you should look at the provisions ‑ ‑ ‑

GUMMOW J:   It is the federal Act, actually.

MR HAYES:   Sorry, the federal Act, I am sorry.

GUMMOW J:   No, it is expressed to be limited to the ACT, in some senses.  Then 56 ‑ ‑ ‑

MR HAYES:   Section 56(2), and to the fact that each of the State Acts are expressed in terms that this is to be a uniform scheme.  Then you go to the explanatory memorandum which I would like to do now – the Solicitor-General for the Commonwealth has handed around to the parties this morning some extracts, no doubt he intends to rely upon, from the explanatory memorandum.  I hope what I am about to do will not take the Court by surprise in that this was not in our list of matters to be read from but I would like to refer to some brief passages from the explanatory memorandum to the Corporations Legislation Amendment Bill of 1990.  I want to draw the Court’s attention to, first of all, paragraph 30 on pages 12 and 13, that:

The applied law is to have the characteristics…..for all practical purposes within each jurisdiction as if it were, a Commonwealth rather than a State -

law.  Paragraph 40, which describes the jurisdiction as a federalisation of matters arising under the various Corporations Laws.  Then we go to paragraph 299 relied upon in paragraph 3.14 by the Commonwealth Attorney-General’s submissions and also referred to in paragraphs 21 and following of Edensor’s principal submissions in matter M23.

McHUGH J:   But with great respect to the Attorney, the statement in paragraph 299 is not accurate for the reason that was put to you yesterday, that frequently the jurisdiction of a Supreme Court of the State is federal jurisdiction.  It is always federal jurisdiction whenever the Commonwealth or one of its entities is a party there.

MR HAYES:   And the intent of this scheme, your Honour, was that there would be a uniform federalisation, as they put it, a uniform conferral of jurisdiction from the particular Act of the particular State applicable to the company in question.  Taking this statement, set out in paragraph 3.14 of the Commonwealth Attorney-General’s submissions, in relation to what had been proposed immediately before the relevant co-operative scheme, it would have been simply Commonwealth jurisdiction.  There would have been one source of Commonwealth jurisdiction.  That was what was proposed.

McHUGH J:   Federal jurisdiction, I think, is the correct term.  “Commonwealth” is a noun, although people frequently use it as an adjective.

MR HAYES:   Accepting that, and replacing it as federal, your Honour, what is then being said is that here – and I called it a patchwork or a matrix yesterday – there are a whole series of interlocking Acts as part of a co‑operative scheme between the Commonwealth, the States and the Territories, which has the effect that the definition now of “Court” will reflect the fact that it will be jurisdiction under the laws of the various States and Territories as well as, as put here, the Commonwealth, and not, as was envisaged immediately in the proposal before the co-operative scheme, simply Commonwealth or federal jurisdiction. 

All of these indicate an intention that the source of jurisdiction of the Federal Court, when dealing with Companies Law matters, was through the various Companies Acts constituting the co-operative scheme.  That is why, when you come to power, the definition is to “the jurisdiction of this jurisdiction”.  The second reference to jurisdiction – again, a question I was asked yesterday – is a reference to jurisdiction under the particular, or conferred by, the particular Companies Act or Law.  You will see some support for that view in the bundle of explanatory memorandum handed up this morning by the Commonwealth Attorney-General.  I do not know whether this was handed to the Court.  It has been handed to the Court.  I was given a bundle starting with the Corporations Act 1989 and it goes through to the explanatory memorandum to the 1994 amendment bill.

GLEESON CJ:   Yes, we have a copy of that.

MR HAYES:   Thank you, your Honour, and on the second‑last physical page of mine there is item 21 that the:

Proposed section 58AA(1) defines the expression “court” to mean any court when exercising jurisdiction under the Corporations Law of the relevant jurisdiction.

That is, in fact, how we submit the expression “jurisdiction of this jurisdiction” is to be interpreted.

Now I am aware from reading the different decisions of this Court in Abebe that there were differences of opinion as to precisely what jurisdiction or what powers or remedies would come with a conferral of jurisdiction by legislation on the Federal Court and the majority, as indicated in the judgment of the Chief Justice and Justice McHugh at page 10 of the report in Abebe, accepted that it is possible that the legislation conferring the jurisdiction will limit the powers or the powers or remedies available within that general matter.

Some of the questions of Justice Gummow yesterday I thought might have been directed at inquiring whether or not the fact that, by reason of the Constitution Chapter III, and the fact that the Federal Court has jurisdiction in relation to Corporations Law matters, nothing else was needed to determine what powers the Federal Court had to deal with such matters.

McHUGH J:   But it depends, does it not?  It depends upon the legislation as to whether power and jurisdiction can be segregated.  Ordinarily jurisdiction is authority to decide and power is the right to the manner or method of exercising that authority, but sometimes the two are coincidental as in Barrett v Opitz Case where the form of the legislation gave the Arbitration Commission power to make orders enforcing the rules of an organisation.  Now, the statement was both a question of power, a question of jurisdiction and also, as the court held, it stated by implication rights and liabilities.  So it had three aspects to it.

MR HAYES:   Yes, well I accept that, your Honour.  I mean, I have in mind what I have just been putting.  Paragraph 27 of the judgment of the Chief Justice and your Honour in Abebe:

The power of the Parliament to make laws defining the jurisdiction of a federal court “with respect to any of the matters” mentioned in sections 75 and 76 is a power to make laws with respect to a class of things which answer a certain description.  A law concerning that description brings within its scope each concrete factual situation which constitutes a “matter”.  But section 77(i) is not concerned with any particular case.  It is concerned with the general, not the particular.

Paragraph 28:

As long as the law defining or investing jurisdiction is one “with respect to” any of the “matters”, as so understood, it will be a law authorised by section 77.

And over then to paragraph 29.  What I understand your Honours to be saying is, you look at the source, if it is a statutory source, of the jurisdiction and you see what it is that that statutory source has conferred on the Federal Court in terms of what it can do within that general subject matter.  Now, in this case the particular Act was upheld as valid by the majority, even though it gave the Federal Court jurisdiction over a matter, but only limited power or as to only certain aspects of that general subject matter.  Here the source of jurisdiction exercised by the Federal Court under the co‑operative scheme is exclusively, we say, under that co‑operative scheme, that is why you have the limit of power ‑ ‑ ‑

GUMMOW J:   Well, can we just go back to section 49 of the ACTAct, as you called it? I do not see how it had any operation in these proceedings in the Federal Court involving the Corporations Law of Victoria.  No matter raised under the Corporations Law of the Territory.

MR HAYES:   No.

GUMMOW J:   Nor was the court one of the ACT.

MR HAYES:   No, that is absolutely right.

GUMMOW J: So section 49 is not speaking to it.

MR HAYES:   That is why I took your Honours then to section 56 and to the intention that there be a uniform company scheme.

GUMMOW J:   The question is whether 39B is being impliedly repealed or expressly repealed, and I cannot see how at the moment.  Section 56(2) does not help you because relevantly it is invalid, or ineffective anyway, to confer jurisdiction, one view being, I think, that does not confer jurisdiction anyway.  It did not purport to.  It just consented to something coming from the States.

MR HAYES:   I was addressing your Honour in the first instance as to what the intention of the co‑operative scheme was, then I want to come to what is the effect of the partial invalidating of it.

GUMMOW J:   Mr Jackson’s first plank is that in this case the Federal Court, because of the position of his client as the moving party, the Federal Court was seized of jurisdiction under 39B.

MR HAYES:   Yes, I accept that.

GUMMOW J:   I thought you were saying 39B, in so far as it would have been such a source of jurisdiction, had been repealed.

MR HAYES:   Yes, and I do submit that.

GUMMOW J:   Well, how?

MR HAYES: By the inclusion of section 49(1)(d) together with section 56(2) and the co‑operative scheme intending to have uniform application and the intention as taken from the explanatory memorandum that there be a uniform ‑ ‑ ‑

GUMMOW J:   You have to take on board 49(2), have you not, as well?

MR HAYES: Yes, you do. Indeed, 49(2) is something which appears without the words in 49(1)(d) in all of the State Acts and when you look at it in the context of section 49, particularly 49(1), in our respectful submission, it is not talking about any other source of jurisdiction to deal with Companies Law matters.  The intention of this co‑operative scheme was, we submit ‑ ‑ ‑

GUMMOW J:   You have to find a law of the Parliament which impliedly repeals 39B.

MR HAYES:   Yes.

GUMMOW J:   We will not get that by just looking at the clouds for intention.

MR HAYES:   No, your Honour, you have got ‑ ‑ ‑

GUMMOW J:   Intention of other legislatures as well.  We have to find a law of the Parliament that expressly or impliedly repeals 39B in its operation to these proceedings in the Federal Court.

MR HAYES:   You had Commonwealth legislation pursuant to a co‑operative agreement between the Commonwealth and the States intending to have uniform application, intending to create its own jurisdiction in relation to corporations matters exclusively from the patchwork of legislation making up that co‑operative scheme.  You find that when you combine 49 with 56 with the aim of the co‑operative scheme expressed in all of the legislation, you have got, in our submission, an implied repeal for Corporations Law purposes of section 39B.  That is our submission.  We say to the Court that the obvious and expressed intent of the co‑operative scheme was it be a stand‑alone source of jurisdiction to deal with Corporations Law matters across the States and Territories of the Commonwealth of Australia.  It was expressed to be based upon a uniform scheme.

GLEESON CJ:   What do you mean by the expression “stand‑alone” in that submission?

MR HAYES:   By that I mean, your Honour, the only source of jurisdiction; its own source of jurisdiction.

McHUGH J:   That is because it excludes 39B in the Cross‑Vesting Act.

MR HAYES:   Yes, and because of the very complex myriad of cross‑connecting legislation that makes up the co‑operative scheme so that no matter which Companies Act it is incorporated under, each of the relevant courts has jurisdiction over it and the same jurisdiction.

It was not intended, we would submit, under this co-operative scheme that there be different types of jurisdiction, depending upon, say, whether it was the Commonwealth that was the moving party, or any other party.

I understand Mr Young will later tell the Court about the relevance of section 64 of the Judiciary Act, and I will leave that part of the argument alone.  But in our submission ‑ ‑ ‑

McHUGH J:   You are not going to deal with it, in fact I meant to say to you yesterday afternoon that I would like to hear from you on section 64.  But if Mr Young will deal with that ‑ ‑ ‑

MR HAYES:   Yes.  I said to Mr Young overnight, I was very happy to hand the baton to him this morning as quickly as possible, and I do know he is going to argue for section 64 and I will adopt what he says on that particular matter, if that is convenient to the Court.

Taking up then the Chief Justice’s question about the Deputy Commissioner of Taxation.  The Deputy Commissioner of Taxation was very smart in making his winding up applications in the Supreme Court.  As it has turned out, the court had jurisdiction there being conferral under the relevant Act making up the national grid, “the jurisdiction of the jurisdiction” meaning, in the case of an application in Victoria for the winding up of a company under the Victorian Corporations Law that authority to decide a matter arising as a result of the application of the Victorian Companies Act. 

So the court had the jurisdiction of this jurisdiction, and no matter which combination of where you make the application within the State system, where physically and where the company is incorporated, the patchwork of the co-operative scheme operated successfully, and still does within the State system, to give that State court jurisdiction.

GLEESON CJ:   Was the Supreme Court of Victoria exercising federal jurisdiction when it wound up the company on the application of the Commissioner of Taxation?

MR HAYES:   Yes, in the sense, your Honour, that it was treated as a combination of Commonwealth and State jurisdiction or not purely Commonwealth, as that expression from the explanatory memoranda says.  It was an attempt to federalise.  So the intention was – this was a stand‑alone source of jurisdiction.  It came from a variety of sources.

GUMMOW J:   Why did it not come from 39 of the Judiciary Act, not 39B just 39?

MR HAYES:   Because, your Honour, the intent to repeat, our submission, I am afraid of ‑ ‑ ‑

GUMMOW J:   There is no express or implied repeal of section 39 on any way.

McHUGH J:   That is what I put to you yesterday, that if you go back to a case like Anderson’s Case about ejectment, it turned on 39(2), not 39B.

MR HAYES:   Yes, your Honour.  We would still say it was subject to being impliedly abrogated to give way to the exclusive source of jurisdiction in relation company matters coming from the Corporations Law of the particular State.

McHUGH J:   But 49(2) denies that proposition, does it not?

MR HAYES:   What, by limiting itself to the exclusion of just 39B?

McHUGH J:   Yes. 

Nothing in this division affects any other jurisdiction of any court.

And “any other jurisdiction” must include 39(2) jurisdiction.

MR HAYES:   Section 39B is excluded in 49.

McHUGH J:   Yes, 39B is, but not 39(2).

GUMMOW J: Section 39B is not excluded in relation to anything other than Corporations Law of the ACT or the courts of the ACT.  That is what it says, what paragraphs (a) and (b) say.

MR HAYES:   Yes, and 56(2):

The Federal Court…..may:

(a)  exercise jurisdiction…..conferred on it by a law of a State corresponding to this Division with respect to matters arising under the Corporations Law of a State. 

This is the link-in between the Commonwealth Act and the various State Acts making up the intention of the ‑ ‑ ‑

GUMMOW J:   An ineffective link.

MR HAYES:    As has turned out, your Honour, yes.  But there are two different points of tie we had to look at this.  The first is what was intended when the co-operative scheme came in?  The second is what is the consequence of the partial failure?  I have been addressing my ‑ ‑ ‑

GUMMOW J:   No, it does not operate prospectively.

MR HAYES:    As it turns out, your Honour - - -

GUMMOW J:   It is not a question of “as it turns out”, the question is, as it always was.

MR HAYES:    As has been now recognised to have always been as it was, that part of the scheme that was proposing to confer jurisdiction by State Acts on the Federal Court in relation to companies matters failed.  That being so, the Federal Court has always, in those matters, exercised some kind of jurisdiction.  We say, in this case, in relation to companies matters, it was accrued jurisdiction, because the only source of relevant original jurisdiction here was under the Trade Practices Act.  Because, we say, in the context of this kind of application, ASIC is not the Commonwealth.  Even if we were wrong about that, and ASIC is the Commonwealth, so there is yet another source of original jurisdiction in the Federal Court, it still lacks power because the only source of power is the power contained in that co-operative legislation.  And the definition of 58AA is not just one way of looking at it.  It is, in our submission, the only source of power.  And it was predicated on the validity of the whole scheme.

So, once that part of the scheme failed, recognised in In re Wakim, then the Federal Court could not, in any view, be acting within the definition of “Court”, because it would not be ever exercising the “jurisdiction of this jurisdiction”.  Therefore, in our respectful submission, the Full Federal Court, in this case, was absolutely correct in its first judgment.  The only question would then be whether or not this is an ineffective judgment.  If it is an ineffective judgment, then the matters that Mr Young is dying to tell the Court about, about validity, become very important.

GLEESON CJ:   When the Supreme Court of Victoria, in the exercise of federal jurisdiction, winds up a company on the petition of the Commissioner of Taxation, the Supreme Court of Victoria is exercising “the jurisdiction of this jurisdiction”.

MR HAYES:   Yes, that is right, and nothing has changed after Wakim in that regard.

GLEESON CJ:   Notwithstanding that it is exercising federal jurisdiction.

MR HAYES:   That is the label that is put on it.  It is a stand-alone set of jurisdiction and the definition, “the jurisdiction within this jurisdiction”, refers to jurisdiction authority to decide of this jurisdiction conferred by the relevant Companies Act.  So, the Victorian Supreme Court does have authority to decide and it is under its Act.  It is if you go to the Federal Court now that there would be a real question as to whether the Deputy Commissioner could get a winding up because it would not be a “Court” in the way we put the matter.

We say, your Honour, that the provisions in the ASIC Act, 12AD and so on – sorry, the misleading conduct claims section, 12DA, et cetera – do not apply here because of the fact that this was not relevantly conduct in relation to financial services.  Even if it applies, it does not alter the outcome of this matter because it is only another source of original jurisdiction which would potentially attract accrued jurisdiction in relation to the Corporations Law matters.

We have set out in writing why we say this was not an ineffective judgment.  We have pointed out that Justice Merkel purported to, or stated that he exercised accrued jurisdiction.  In our respectful submission, it is fundamental and obvious that the Jurisdiction of Courts Act was not directed at a situation where there was a failure of power within accrued or federal jurisdiction.  Therefore, in our respectful submission, this is not an ineffective judgment and the Full Court was in error in its second set of reasons.  So, in our submission, the Full Court got it right on the first occasion in its construction of the power provisions.  In our respectful submission, the Federal Court got it wrong on the second occasion in, in effect, finding that this was an ineffective judgment.

There are other matters dealt with in detail in our submissions, but, unless there are particular matters – and I know Mr Young is to follow – they are our submissions.

KIRBY J:   Can I ask you if, in fact, one concentrates on the record and on the orders and the orders of the Full Court that followed the second argument are wrong in the sense that there was jurisdiction in this notional sense that the Commonwealth was a party, is it necessary for this Court, in order to resolve the matter that is before it, to go on to the State Jurisdiction Act or can the Court simply confine its attention to the error that you have been asserting in the form of the declarations that were made by the Full Court of the Federal Court?  If you take the view that I have suggested to you that the ASIC being present, the Commonwealth was present, and therefore there was jurisdiction, then there is a mistake in the declaration which, on one view at least, one should set aside and put it back to square one in the Federal Court.

MR HAYES:   If this Court came to the conclusion that Mr Jackson was wrong and that the Full Federal Court was right in its first decision but accept our submissions that there were errors in the expression of the

declarations, then we would ask that those declarations be set aside and the matter remitted back to the Federal Court to decide, which I think is what your Honour put to me as the second of the two propositions.

KIRBY J:   It may be that the Federal Court would need guidance on the basis on which the orders were being set aside because, if there are two theories, that could inform such an order of this Court.

MR HAYES:   The court’s expression of the reasons for setting aside those declarations may well be decisive of what happens thereafter and we would hope also that the court would see the force of our arguments about the lack of any obvious legal power to make order 7 under section 737 and say something about that for the guidance of the Full Court when it went back.  If the Court pleases.

GLEESON CJ:   Thank you.  Yes, Mr Young.

MR YOUNG:   May it please the Court, we propose to commence by making a number of observations concerning section 58AA before turning to deal, firstly, with the arguments concerning jurisdiction and power and I ask the Court to go to that section. The following features, in our submission, are important both in construing section 58AA and in determining whether sections 737 and 739, when read with section 58AA, are applicable in such a way that they are capable of being picked up by section 79 of the Constitution.

GUMMOW J:   The deciding point is really section 7 of the Corporations (Victoria) Act, is it not?  We are talking about a Victorian statute throughout.

MR YOUNG:   Yes, it is, your Honour.  That applies the Corporations Law as a law of Victoria.

GUMMOW J:   Yes, and then section 9 gives a bit of help with definitions.

MR YOUNG:   Yes.

GUMMOW J:   Then we have this enormous schedule tacked on, as it were.

MR YOUNG:   Yes, your Honour, but we implicitly accept that that is the starting point, namely that the Corporations Law is applied by the Corporations (Victoria) Act 1990 as a law of Victoria. The first feature of section 58AA that we would point out is that in the definition of “Court” the words “when exercising the jurisdiction of this jurisdiction” qualify the reference to each of the courts, that is to say, “Court” means, for instance, the Supreme Court of Victoria but only when exercising the jurisdiction of the polity of Victoria.

GAUDRON J:   Then you have written words in, you see, already.  You have said “but only”; the words “but only” do not appear there.

MR YOUNG:   Let me withdraw them for the moment, your Honour.  That is ultimately the effect of our construction.

GUMMOW J:   Well, I know it is, but there is an alternative construction to section 58AA which does not involve reading those words into it.

MR YOUNG:   With respect, your Honour, our submission will be that there is no alternative construction that does not do violence to the words of the section, but it is a different question whether those words of limitation are of such a kind as to prevent the operation of section 79; that is a different question. But purely as a matter of construction, the words “when exercising the jurisdiction of this jurisdiction” have a clear and precise meaning which cannot be re-written.

GAUDRON J:   They may have a clear and precise meaning, but the question is, at what point you bring them into play.  Now, prima facie, one would think, on ordinary legal principle, this Act would say nothing about federal jurisdiction.  One would think it would say nothing about it simply because Victorian laws cannot regulate what happens in the exercise of federal jurisdiction.

MR YOUNG:   We agree with that, your Honour.

GAUDRON J:   So, in that context, one would think what it is speaking to is only those courts when exercising State jurisdiction, leaving the work to be done by some other law or perhaps by, if there is no other law, the choice of law rules, to say what happens when a court is exercising federal jurisdiction.

MR YOUNG:   Can I say, in essence, we do not disagree with your Honour’s analytical framework.  There will be a point though where, what we say, the real question emerges, which is whether sections 737 and 739, when the definition of court is properly construed is read into them, operates at all in relation to the powers of a Federal Court exercising federal jurisdiction.

GAUDRON J:   Or the powers of the Supreme Court exercising federal jurisdiction.

MR YOUNG:   Yes, we agree with that.

GAUDRON J:   You have got to go - the logical consequence of your conclusion is that there is no provision picking up the Corporations Law if the matter happens to stray into federal jurisdiction, even in the Supreme Court.

MR YOUNG:   No, that is not our submission, your Honour.  We say there is a different outcome when one moves from the Federal Court to the Supreme Court.

GUMMOW J:   Why?

MR YOUNG:   In essence our argument is, and I will develop it in stages, that section 79 does not pick up sections 737 or 739 and make those laws applicable when the Federal Court is exercising federal jurisdiction in relation to the matter that was before it in this case, but if we hypothesise that the Commission had gone to the Supreme Court of Victoria, or the Deputy Commissioner of Taxation goes to the Supreme Court of Victoria, to make an application in a matter arising under the Corporations Law of Victoria, federal jurisdiction is being exercised by the Supreme Court of Victoria, section 79 cannot be picked up for the same reason, as it cannot be picked up in the context of the Federal Court, but section 64 will ensure that the rights that would prevail as between subject and subject will prevail notwithstanding that the applicant is the Commonwealth, and that is the argument that we wish to develop.

It is a very different argument than the one advanced by Mr Hayes but if I could try the Court’s patience and try and develop it step by step, if I may.  The first step is the proper construction of section 58AA which is to be read into 737 and 739 as laws of Victoria.  The point we make about those words “when exercising the jurisdiction of this jurisdiction” is essentially this.  They must be given a meaning.  They must be given a meaning that accords with their plain language and that meaning is a meaning that qualifies the reference to each of the courts.  So it has to be a meaning that makes sense not just for the reference to the Federal Court but for the reference to the Supreme Court of each other State, that makes sense for the reference to the Supreme Court of Victoria and for the Family Court. 

Secondly, this is a general definition of “court” which is read into many, many sections in the Corporations Law of Victoria.  Many of them do not mention the Commission or give any standing to the Commission expressly to make the application.  Some foreclose the possibility that the Commission can be the applicant because they, for instance, give a standing to a controller, an administrator, a receiver or a liquidator to make an application.  Some give standing to officers of corporations to apply for relief such as 1318 and it is not capable of applying to the Commission.  Others provide for compensation to persons injured in terms which specifically exclude the Commission.  Sections 1325(1) and (2) compare to subsection (3) where the Commission is bringing a representative action.

The final example is that considered by your Honour Justice Kirby in Merribee, namely an action in the High Court, an application for security for costs, and the question was whether that power was conferred on the High Court by section 1335 of the Corporations Law.

GUMMOW J:   Of course it cannot be conferred on the High Court by that section. It may be picked up by section 79.

MR YOUNG:   Your Honour is correct, it is a two-step process.

GUMMOW J:   Yes.

MR YOUNG:   I collapsed it but ‑ ‑ ‑

GUMMOW J:   I know, for some perceived forensic advantage.

MR YOUNG:   No, your Honour.  I am conscious of the separation but the reason his Honour Justice Kirby gave in Merribee for the conclusion ‑ ‑ ‑

GUMMOW J:   No submission concerning 79 was put in that case, was it?

MR YOUNG: Well, the reason Justice Kirby concluded that section 1335 conferred no power on the High Court via section 79 was that “court” was confined by the words “when exercising the jurisdiction of this jurisdiction” and those words meant “when exercising the jurisdiction of the polity of Victoria”, and his Honour disagreed with an interpretation of those words that attributed a geographic limitation to them, that is to say, when exercising the jurisdiction under the Corporations Law in the geographic territory of Victoria.

But any construction of section 58AA has to accommodate the fact that the word “court” is used in these very many different applications and the simple point we seek to make is to meet a point raised by Mr Jackson, namely that the reference in sections 737 and 739 to ASIC, to the Commission, to give the Commission standing to make an application cannot be the driver for the proper construction of section 58AA, yet that is how he sought to use it.

HAYNE J:   But do you accept that 737 with its diverse group of persons who may invoke it, including former members and the like, must be read with the definition from 58AA in a way that accommodates each of the cases contemplated by 737, one of which is, according to Mr Jackson’s argument, the Commonwealth as the moving party?

MR YOUNG:   No, your Honour, for this reason:  whilst the construction must take account of the fact that the words “when exercising the jurisdiction of this jurisdiction” is a qualifier of each of the four courts, so to that extent, yes to your Honour.  But as to the core of your Honour’s question, no, because federal jurisdiction is addressed not by distorting or rewriting the language of the definition but by addressing the provisions of the Judiciary Act which would make a State law applicable in federal jurisdiction not by force of State law but by force of Commonwealth law in the provisions of the Judiciary Act.  That is where the accommodation is reached, not by altering the definition of “court”.

HAYNE J:   Does your argument then proceed from the premise that 58AA is dealing with a distinction between federal and non‑federal jurisdiction, or at least contemplating that distinction in its various forms of operation?

MR YOUNG:   The answer is yes, it is contemplating that distinction.  It specifically addresses the Federal Court, so State Parliament has turned its mind to the position of the Federal Court.  It specifically addresses the position of the Supreme Court and qualifies each by the words “when exercising the jurisdiction of this jurisdiction”.

HAYNE J:   Does any part of that phrase address the question of the distinction between federal and non‑federal jurisdiction?

MR YOUNG:   If your Honour is asking me whether you read in effectively words to this effect, “either when exercising the jurisdiction of this jurisdiction or when exercising federal jurisdiction”, so that is the kind of contemplation, we would say no, that is to rewrite the section.  But by confining the definition of “court” to the situation when the jurisdiction of the polity of Victoria is being exercised, in picking that out there is necessarily a contemplation that what is left outside it is federal jurisdiction.

McHUGH J:   But why should you do that?  If you just translated all those literally, “Court” means any of the following courts when exercising the authority of courts to decide in this jurisdiction.  The authority of courts to decide in this jurisdiction includes the authority to decide matters arising in federal jurisdictions.  Does your argument come to this, that you could not cross‑vest under the Corporations Law any matter of federal jurisdiction arising in the Supreme Court of Victoria?

MR YOUNG:   No, your Honour, it does not come to that.  Your Honour, in effect, reworded that phrase by more or less transforming it into a geographic limitation, “in this jurisdiction” having a geographic sense rather than “exercising the jurisdiction of the polity of Victoria”.

McHUGH J:   In section 9 “jurisdiction” means “a State or the Capital Territory”, does it not?

MR YOUNG:   Yes, and so when read in, “when exercising the jurisdiction”, we would say that first reference is to a reference to the authority to determine rights, obligations, et cetera.

KIRBY J:   The natural language for a geographic construction would be “when exercising jurisdiction in this jurisdiction”.

MR YOUNG:   Yes, your Honour.  So the second reference “of this jurisdiction” does pick up the definition, that is, “the jurisdiction of the State of Victoria”, “of the polity”.  That is the natural reading of the words.

GUMMOW J:   What it is designed to do really is to make it clear that you do not go to Magistrates Courts and you do not go to the County Court, is that not what you are on about?

MR YOUNG:   No, that is only part of the function ‑ ‑ ‑

GUMMOW J:   Well, that is the problem, that is a constructional problem, it seems to me.

MR YOUNG:   Yes, but we would say ‑ ‑ ‑

GUMMOW J:   Bearing in mind what Justice Gaudron put to you.

MR YOUNG:   Well, that cannot be any part of ‑ ‑ ‑

GUMMOW J:   And it was a source of some irritation in some quarters, that quite trivial matters arising under this law were going to the Supreme Courts and not to the County Courts or District Courts.

MR YOUNG:   The point your Honour makes addresses the difference between a “court” and a “Court”.  It does not address the meaning to be given to the words of limitation that precede subparagraph (a) in the “Court” definition.

HAYNE J:   But you take the words “this jurisdiction” at the end of that phrase as referring to the polity.

MR YOUNG:   “The jurisdiction of the polity of Victoria”, which conforms to the definition of “jurisdiction” in the earlier section.

HAYNE J:   Does it? That is the relevant definitions being found in section 9 of the Corporations (Victoria) Act.

MR YOUNG: No, section 9 of the Corporations Law picked up by Victorian law.

HAYNE J:   Well, you start with section 9 of the Corporations (Victoria) Act, do you not, in the Corporations Law?

GUMMOW J:   That is why I referred you to section 9.

HAYNE J:   “‘This jurisdiction’” means” Victoria.

MR YOUNG:   Yes.

HAYNE J:   And you go from there perhaps to section 9, the dictionary, and you find some geographic expansion, you are out into the coastal sea - a matter of considerable importance, no doubt.

MR YOUNG:   But none of that alters, your Honour, the meaning in the context of “the jurisdiction of this jurisdiction”.

McHUGH J:   Yes, but what is “jurisdiction”?  Obviously, “jurisdiction” when it is first used in that phrase is not referring to a geographical location.

MR YOUNG:   No, it is not.

McHUGH J:   It is not.  What is the natural meaning of “jurisdiction”?  It refers to the authority of courts to decide.  So, why does it not mean, “when exercising the authority of courts to decide of Victoria”?

MR YOUNG:   Yes, that is as we read it, your Honour.  “When exercising the authority to decide of courts of Victoria”.

McHUGH J:   Yes, why does that include “that is arising in federal jurisdiction”?

HAYNE J:   And that is, the section is wholly silent on matters of division between federal and State jurisdiction.  It is simply talking about matters arising under the Corporations Law of Victoria, not matters arising under the Corporations Law of New South Wales.

MR YOUNG:   Yes, but “the jurisdiction of this jurisdiction”, the authority to decide “of the courts of Victoria” in its natural meaning ‑ ‑ ‑

McHUGH J:   But that includes law, equity, federal jurisdiction, State jurisdiction, it might even include non-judicial jurisdiction.

MR YOUNG:   That is the reading of it.  Then the effect of 737 and 739 is to confer judicial power on the Federal Court, which was never the intention, and that would remain.  Those words are still there.  The effect of Wakim, we would say, is to put a blue pencil through the reference to the Federal Court and the reference to the Family Court.  But the words “when exercising ‑ ‑ ‑

GAUDRON J:   So be it. That does not advance you either, because let us say that the Federal Court and Family Court go out, but there is a matter within federal jurisdiction, what would prevent section 79 operating? I do not think anything would.

MR YOUNG: Section 79 only operates to pick up a State law, if it is applicable, and the qualification ‑ ‑ ‑

GAUDRON J:   One says that, but I wonder whether, in the light of what has been said in Pfeiffer, for example, one should not see section 9 as specifying governing laws, generally, which would be picked up in exactly the same way as a substantive law would be by a choice of law rule.

HAYNE J:   If the result that the forum reference, or the location reference in 79, where the Federal Court is sitting, may take you off into choice of law questions.  It may or may not.  I do not know.

McHUGH J:   It is very close to it, it seems to me, and if 79 is just read literally it would not have too much operation.

MR YOUNG:   No, your Honour.

McHUGH J:   Robertson’s Case makes plain, you have to do a bit of surgery on it.  Prima facie, all laws apply, one might think, unless there is something so specific about it that it cannot apply.

MR YOUNG:   Robertson and Pedersen and the other cases dealing with that qualification all recognise that it is a qualification of a very limited nature, and it has never been taken beyond saying that general or generic references to “a court” which, in context, would be construed as the Supreme Court of Victoria, for example, should not be regarded as preventing the operation of section 79.

McHUGH J:   I know.  But you throw the whole weight of your argument on the term “court” in sections 737 and 739.  Maybe the weight of the argument should be thrown on the substance of the section, bearing in mind that it is just a reference to a court in that particular jurisdiction.  What 79 is picking up is the substantive rights.

MR YOUNG:    But, your Honour, if it simply meant the court in each jurisdiction of Australia, the definition would have read very differently.  It simply would have listed the Federal Court, the Supreme Court of each other State, the Supreme Court of this State, the Family Court of Australia, et cetera.

GUMMOW J:   No, no.  You keep turning it upside down, Mr Young.

MR YOUNG:   Well, with respect, we do not agree to that, your Honour, nor do we understand which way your Honour says should be upright.

McHUGH J:   But you start with the proposition that you are in federal jurisdiction when you are in the Federal Court and the question arises, is there some non‑federal matter which can be brought across under the accrued jurisdiction or whether it can be brought across under 79 or perhaps 64.

MR YOUNG:   Yes, that is right, your Honour, and each of them brings things across in a different way. Accrued jurisdiction brings the authority to decide, but not of itself, the content of the law. You then need to look to State statute or common law for the content of the law and for the remedy. Likewise with section 79. It brings things across according to its own terms only if they are otherwise applicable in the situation and section 64 operates differently because it has no such qualifier in section 79. It operates to secure the position that the rights of the parties in a suit involving the Commonwealth are the same as in a suit between subject and subject, so they operate differently. They can have different consequences and we say they do in this case. The weight of the whole argument against this construction is that, in effect, ASIC or the Commissioner of Taxation have nowhere to turn if the words of the definition are given the meaning that the Full Court gave them. We say those are wrong because it simply misunderstands the operation of sections 79 and 64, accepting that it is federal jurisdiction.

Can I just go back and make a few other points about section 58AA.  Your Honour Justice McHugh asked about the function of subsection (3).  It seems to us to have this significance.  First it is a recognition the jurisdiction is not conferred by the definition of “court” operating in conjunction with sections such as 737 and 739.  Jurisdiction, it is pointed out by way of explanatory note, first of all, that jurisdiction is conferred otherwise by other Acts.

That point that the definition of “court” read with other sections of the Corporations Law is not dealing with jurisdiction and not purporting to confer jurisdiction is confirmed when one turns to 737.  Its opening words are:

Where a person has acquired shares in a company in contravention of section 615, the Court…..may make –

certain orders. So plainly there is a matter, a broader matter involving a contravention, and all that 737 is doing is giving the court a power of relief in circumstances where a contravention has been established and likewise section 739. So quite clearly 737 and 739 and the definition of “court” are not dealing with the conferral of jurisdiction. They are dealing with making available a power to a court which otherwise has jurisdiction. There is nothing unusual in that. Section 22 of the Federal Court Act does exactly that.  See Philip Morris.

Section 58AA(4) perhaps explains why we have that explanatory note in subsection (3).  It seems to us the point of including the reference in subsection (3) in terms of noting that jurisdiction is dealt with in certain Acts is a precursor to subsection (4), namely to say the matters dealt with in those Acts that actually confer jurisdiction include their own limits on jurisdictional competence.

HAYNE J:   All this is done in pursuance of the general chatty nature of the Act which is revealed by section 7 of the Law, that you will find most of the provisions here, there are some relevant there and some are found elsewhere. You have lots of circles and arrows and diagrams pointing you to where to look.

MR YOUNG:   Yes, but I was making a simple point that the purpose of subsection (3) is connected to subsection (4) which is to confirm or stress that the definition of “court” is not dealing with the conferral of jurisdiction.

GUMMOW J:   But the only conferral of jurisdiction is in section 42 of the State Act, is it not?

MR YOUNG:   No.  That is civil jurisdiction.

GUMMOW J:   Yes.

MR YOUNG:   Criminal jurisdiction is conferred by section 53 of the State Act.

GUMMOW J:   Yes.  I know but we are talking about civil jurisdiction.  The only conferral of civil jurisdiction here is in 42 and the only conferral of any jurisdiction is under the State Act.

MR YOUNG:   No.

GUMMOW J:   Where else?

MR YOUNG:   The Commonwealth ASIC Act confers jurisdiction in relation to administrative review.

GUMMOW J:   Yes, but in this case the sections ‑ ‑ ‑

MR YOUNG:   Relevantly to this case, but I thought your Honour was dealing with the general position.

GUMMOW J:   Yes, this case.

MR YOUNG:   In this case, relevantly, the source of jurisdiction is the Corporations (Victoria) Act 1990.

GUMMOW J:   Section 58AA is not a conferral of jurisdiction provision.

MR YOUNG:   Yes, that is so.  That, in a sense, makes part of the point we make, the distinction between jurisdiction and power.  But in this context it leads, perhaps indirectly, to this proposition, which is to address what your Honour Justice Gaudron put to me.  Recognition of the fact that the words “when exercising the jurisdiction of this jurisdiction” are not addressing federal jurisdiction does not really lead anywhere.  That does not give a different consequence to the definition of “court” than it would otherwise have as a definition.  It is simply a recognition of the fact that those words are addressing the jurisdiction of the State of Victoria conferred by these other Acts.

GAUDRON J:   Yes, I know, but I am still not entirely sure that one is asking the right question for the purposes of section 79 of the Judiciary Act.  I am not sure that one should not be asking, “Does 58AA manifest an intention that ‘court’ does not mean any of those courts when they are exercising federal jurisdiction?”.  That is to say, you have to take a negative implication, it seems to me, to exclude section 79, which is hard to draw if you accept the framework that the Act does not, for the very simple reason that it could not, address itself to federal jurisdiction.

MR YOUNG:   Yes, but that still leaves unaddressed the definition and the words “when exercising the jurisdiction of this jurisdiction” because, when you read the definition for section 737, the relevant power to make the orders is only given to the Federal Court “when exercising the jurisdiction of this jurisdiction”.  Now, that has been held ‑ ‑ ‑

GAUDRON J:   Again, if you are picking up the power of a State Supreme Court to grant an injunction, for example, for breach of a statutory duty, let us say, which happened to get involved in it, you would normally read “Supreme Court” as meaning “Supreme Court when exercising the jurisdiction conferred on it by the laws of this State”, would you not?  But you would still pick that up and you would do that because, invariably, your Interpretation Acts say that is what ‑ ‑ ‑

MR YOUNG: Yes, but when we take our case of the Federal Court, hearing a matter involving trade practices and allegations of contravention of section 615, and it gets to the remedy stage and it asks what remedies are available and it turns to 737, on no view of the definition can it really be said that the Federal Court qualifies as a Federal Court when exercising the jurisdiction of the courts of Victoria or of the State of Victoria, it matters not, because the Federal Court is never exercising the jurisdiction of the State of Victoria or of the polity of Victoria or of the courts of Victoria. So, to answer your Honour Justice McHugh, that reading, when read into “court”, does not produce any different outcome when one turns to section 737.

The Federal Court is simply not relevantly exercising the jurisdiction of Victoria or the courts of Victoria or anything like it; it is exercising federal jurisdiction conferred on it by the laws made by the Commonwealth Parliament and that is the end of the matter.  So therefore we would say, on no construction of 58AA is 737 or 739 applicable and, that being so, they are not relevantly powers that the Federal Court has in the exercise of its federal jurisdiction.  That is, we would say, the clear intention of the State Parliament.

KIRBY J:   Well, its intention was to operate in a milieu before Re Wakim.

MR YOUNG:   Yes, your Honour.  It was intended to affect a result that was efficacious for the cross-vesting scheme.

KIRBY J:   You cannot, surely, be blind to that fact.

MR YOUNG:   You cannot, we say it is significant.

KIRBY J:   This is how it was intended to operate; it is just that it cannot now operate that way.

MR YOUNG:   They are, at the end of the day, and there is no getting away ‑ ‑ ‑

GAUDRON J:   But, on your argument, it would not have operated pre‑Wakim, would it?

MR YOUNG:   It would not have operated pre-Wakim if you make the assumption that the State court cannot confer the jurisdiction of the State of Victoria ‑ ‑ ‑

GAUDRON J:   No, let us leave aside that.  Let us assume pre-Wakim, ASIC bringing proceedings, admittedly within jurisdiction, in the Federal Court seeking relief in addition under the Corporations Law of Victoria.  On your argument, pre-Wakim, section 79 would not have picked up the relevant section, because the Federal Court, even then, because it already had jurisdiction in the matter, would not have been exercising the jurisdiction of this jurisdiction, within the meaning of the definition.

MR YOUNG:   That is so, your Honour.

GAUDRON J:   Yes.  So your argument has nothing to do with Wakim really?

MR YOUNG:   No, that is not entirely so, your Honour, because that the terms in which jurisdiction is purportedly conferred on the Federal Court by section 42 of the Victorian Act is this:  jurisdiction is conferred on the Federal Court with respect to civil matters arising under the Corporations Law of Victoria.  So, to pick up Justice Kirby’s point, the premise of section 58AA and of section 42 is that jurisdiction can be conferred on the Federal Court directly by the Parliament of Victoria and, moreover, the premise would seem to be that judicial power as well as jurisdiction can be conferred on the Federal Court by the Parliament of the State of Victoria.  Now, that is wrong, but that was the assumption under which it was apprehended that the Federal Court, in a case such as this, would be able to make orders of the kind described in section 737 and 739.

GAUDRON J:   Well let us assume that had been held valid.  Why would the Federal Court have power under 737 in a matter such as this?

MR YOUNG:   If that were held to be valid?

GAUDRON J:   Your argument would still have to be, would it not, no power?

MR YOUNG:   Correctly, yes, because we would say when you have accrued jurisdiction, the Federal Court is exercising federal jurisdiction to the exclusion of any State jurisdiction and so your Honour is right.  But that is only to indicate that the draftspeople of the scheme misunderstood, not just one principle of constitutional law but, perhaps, a second principle as well.  That is to say that when Corporations Law jurisdiction is conferred by the State of Victoria on the Federal Court, it somehow remains a discrete area of jurisdiction that the Federal Court is exercising, regardless of what other jurisdiction it is exercising.  But that, too, is apparently – I do not mean apparently but it is perceivably the premise on which these sections proceed.  That is to say, the Federal Court, no matter what other jurisdiction it is holding and exercising, it will be discretely at the same time exercising jurisdiction conferred by the various States under the cross‑vesting legislation.

GLEESON CJ:   Does it not at least follow from what you say that it misrepresents the position to suggest that this is a problem that arises out of the decision of Re Wakim?

MR YOUNG:   It does, your Honour.  Certainly, that is not a complete statement of the problem.  It is a partial statement of the problem.

KIRBY J:   You just say that they have made two mistakes.  One, the one revealed by Re Wakim; and two, the one of the face of the definition of “Court”.

MR YOUNG:   Yes.

KIRBY J:   But it still has the mistake of Re Wakim written all over it, because ‑ ‑ ‑

MR YOUNG:   It permeates the whole thing, we would say, your Honour.

GUMMOW J:   Why?  How does it permeate it, apart from giving it some forensic colour?

MR YOUNG:   Because the premise of section 42 of the Victorian Act is that the Federal Court ‑ ‑ ‑

GUMMOW J:   Given the answer you just gave to Justice Gaudron, how it does not seem to follow.

MR YOUNG:   It permeates it because the premise is that the Federal Court is able to have conferred upon it a discrete area of State jurisdiction which, no matter what else it is dong, it will, when it is dealing with matters under the Corporations Law, be exercising the jurisdiction of the polity or the courts of Victoria.

GLEESON CJ:   You would be running exactly the same argument if Re Wakim had gone the other way.

GUMMOW J:   I thought you agreed with that.

GAUDRON J:   Yes, you have told me that twice.

HAYNE J:   The third time of asking.

MR YOUNG:   It was exactly the same argument, but in large measure, yes, your Honour.

GUMMOW J:   More forensic colour.

HAYNE J:   I think you have just consulted the vendor on the third time of asking, Mr Young.

MR YOUNG:   But whatever the sources of the error, we say that those words of limitation, and they are intended to be words of limitation, cannot be disregarded.  The Commission’s argument was one in which they advanced no meaning of the limiting phrase.  The burden of their argument was simply, “Disregard it because it ought not to be allowed to deprive the Federal Court of the power to make these orders, because otherwise ASIC would have nowhere to go.”

grant, either absolutely or on such terms and conditions as the Court thinks just –

and I will mention the terms and conditions in the particular order in a moment –

all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim –

Now, your Honours, so far as the Commission is concerned, one has to bear in mind section 11(7) of the ASIC Act which gives by Commonwealth law the Commission the power to do the things that are referred to in sections 737 and 739.

McHUGH J:   But your starting point is 615.

MR JACKSON:   Yes.

McHUGH J:   You can assume a breach of 615 and then 22 operates in respect of that breach.  You may be right.  It just occurred to me that maybe you do not have any legal or equitable claim unless you can prove some loss or some other particular damage, whereas 737, 739 give you a particular remedy.

MR JACKSON:   Your Honour, can I say two things about that.  One is a matter of the content of 615 and the other is what is meant by 22.

McHUGH J:   Yes.

MR JACKSON:   As to the first of those, your Honour, 615 is a shortly expressed provision and it provides a prohibition, which is of a positive kind.  It then says it is breached by doing those things where not otherwise approved by that part or chapter, I have just forgotten which.  But the nature of the potential prohibitions is elucidated by the circumstances in which it is lawful to do the things otherwise prohibited.  So, your Honour, that gives a great deal of possible content to orders that might be made.  One sees the nature of things.  One sees the interests that are being sought to be protected and it is from that that the types of possible orders are indicated.

Your Honours, each of the provisions, when one goes to sections 737 and 739, speaks of making an order that is just in the circumstance, then one is talking about specific circumstances. But when one comes to section 22, this is the second point, it does speak of legal and equitable claim. But “legal”, as would very, very frequently be the case in relation to federal jurisdiction, and in particular jurisdiction which is conferred in relation to matters arising under a law of the Commonwealth, would necessarily be not just legal rights arising under the general law as compared with, say, equitable rights, but statutory rights. When one speaks in section 22 of a “legal or equitable claim”, it is not just speaking about causes of action arising under the general law.

In dealing with the question of orders, may I go to a matter that was raised by your Honour Justice Hayne, and that concerns the question of parties.  I want to say, if I may, two things about the question of parties in relation to the matter.  Before I go to that, could I give your Honours a reference – I gave the wrong one a moment ago ‑ ‑ ‑

GLEESON CJ:   Why are you getting into this area?  What is the relevance of this to the points that we have heard argument on?

MR JACKSON:   Because it was raised by Justice Hayne and because what his Honour has been putting is something that, in our submission, does not quite represent - and the answers his Honour has been given do not quite represent what the true situation is.  Your Honour, if I may do so ‑ ‑ ‑

HAYNE J:   I have been verballed before, Mr Jackson, but that is pretty comprehensive.

MR JACKSON:   Well, your Honour, may I take that as a compliment knowing that one day I shall pay the penalty for doing so.

HAYNE J:   Indeed.

MR JACKSON: Speaking of penalty, could I give the reference to the penalty provision for contravention of section 615. It is section 1311. Could I just say two things. The first is, if one looks at the orders that were actually made, none of them, in our submission, affects any person other than by giving them additional money. Your Honours will see the orders set out in volume 1, page 137. The first order is a declaration that by entering into the shareholders agreement there was a contravention of section 615.

The second order was a further declaration to similar effect.  The third was a declaration of misleading conduct.  The fourth then is one requiring that there be a notice, referred to in order 4(d), sent to each offeree – and I am back to 4(a) - who accepted the takeover offer.  The notice is to tell them they are entitled to withdraw the acceptance.  Paragraph (b), each person whose shares have actually been acquired is entitled to avoid the acquisition.  Then 4(c), those compulsorily acquired are entitled to avoid it.

Now, your Honours, one goes then to the provisions.  If I could take your Honours to order 7, it says “Within 21 days” there is to be paid not to any individual, your Honours, but to the Commission a sum for payment to the shareholders who have accepted and who “have not exercised their entitlement” “to withdraw that acceptance” or who do not want to avoid their acquisition or “who have had their shares compulsorily acquired” “and have not avoided the acquisition”.  Your Honours, one sees in order 8, if that payment is not made to the Commission, then self-executing orders are made that Yandal dispose of the shares on the market, to put it shortly.  That is the first thing.  The second thing is simply this, that under the Rules of the Federal Court, Order 6 rule 7, the, in effect, plea in abatement, as it were, or the provision that says proceedings would fail for want of parties, is not effective.

Could I move from that to say something concerning section 64.  Our learned friend’s argument concerning section 64 seems to give it a differential operation when applied in a Supreme Court or when applied in the Federal Court.  Now, there is, in our submission, no very good reason why the rights that would be applicable would be different in the Federal Court.  Our learned friend’s argument seems to involve an underlying assumption that the suit between subject and subject to which section 64 applies will be in State jurisdiction if brought in a State court.

Your Honours, that may well be so, in one sense, in the sense that one might be looking at a State body of law to see what the rights would be, but it certainly does not follow that that would necessarily be so.  It may well be something that is in federal jurisdiction in any event in matters between subject and subject.  If one looks at one of the leading cases on the application of section 64, which is The Commonwealth v Evans Deakin, (1986) 161 CLR 254, one sees that it is a case that really has similarities to the present. The legislation in question in that was legislation of Queensland which created a new form of charge available to subcontractors. Your Honours will see the summary of the legislation in the joint reasons commencing at page 261. In the first new paragraph on that page it describes the creation of the right and then, your Honours, at the top of page 262 in the fifth line:

Claims may be determined and enforced by proceedings under the Subcontractors’ Charges Act in (inter alia) the Supreme Court of Queensland.

There was no reference to other courts in other jurisdictions.  But one goes then, your Honours, to see, at page 264, how the matter was dealt with by the Court.  If one goes to about point 5 on the page, their Honours say:

When an action is brought against the Commonwealth in the Supreme Court the condition for the operation of s 64 is satisfied.  Once the suit is commenced the substantive rights of the parties shall be, as nearly as possible, as in a suit between subject and subject.  If the Commonwealth were a subject, Evans Deakin, as sub-contractor, would, on the facts alleged in the statement of claim, be entitled to enforce the charge given by the Subcontractors’ Charges Act.

Now, your Honours, what your Honours will see is that the provision in question was one that gave a limited class of persons the ability to apply in relation to the charge and your Honours will see also, in our submission, that if one goes to a case such as this the persons who might apply under either of the provisions in question are not simply the Commonwealth or ASIC but other persons as well.  In circumstances of that kind, one looks to their position.  They are the other possibility, subject and subject, and there is no reason why the course that they might take might not be brought over into section 64.

Your Honours, our learned friend, Mr Young, spoke of ASIC as both performing State powers and State functions but, of course, one sees that ASIC was exercising the powers under section 11(7) of the ASIC law. Your Honours, if one goes to what was said by the Court in Hughes 74 ALJR 802 at 809 and your Honours one sees in paragraph [33] of the reasons, speaking of provisions containing terms that are similar to those of section 11(7), your Honours will see, for example, paragraph [17] speaks of:

functions and powers expressed to be conferred on them by or under a corresponding law –

Then going to paragraph [33], halfway through the paragraph, what is said is:

However, what is involved in the federal legislation is more than consent or permission by the Commonwealth to the exercise by its officers of additional functions and powers derived entirely from State law.  These additional functions and powers are imposed by federal law as a matter of duty or obligation –

The particular passage was the reference to “being imposed by federal law”.  That militates, in our submission, against the contention that in some way, if I may say so with respect, a little lacking in exact definition, in some way this body, established pursuant to the Commonwealth legislation and specifically empowered to authorise powers conferred on it by State legislation, is to be treated as acting otherwise.

If I could turn then to the submissions that were made concerning section 39B(1A)(c), that does not turn at all upon the ASIC being the Commonwealth. It is a separate head. ASIC of course represents the Commonwealth. But so far as section 39B(1A)(c) if one takes it by itself is concerned, one has a situation where at the very least a matter arises under a law of the Commonwealth because section 11(7) is in force and a federal law is the basis for the enforcement of the right given to ASIC. That is all that is required.

Could I also say – this is the next matter – that the Federal Court, as some of the submissions of our learned friends suggested yesterday, I think, has not decided the question whether order 7 should have been made, leaving aside any question of jurisdiction.  What has happened has been that the only basis upon which the order 7 decision was made by the Full Court was the question of absence of jurisdiction.  I will not take your Honours through that but your Honours will see it commences at page 187 paragraphs 13 to 23 of the judgment of the Full Court.

May I say one other thing, and it concerns the situation of how the Full Court’s orders came about.  When the Full Court gave its decision on 10 December, it invited submissions from the parties.  Your Honours will see that at page 195 paragraph 34.  Submissions were filed by ASIC as to the disposal of the money and, the matter being one of urgency, further submissions were foreshadowed.  Your Honours will see that at pages 197 to 201.  Then the further submissions were filed and they pointed out the consequences of the Full Court’s approach and asked for the issue concerning jurisdiction to be reargued and urged that none of the orders other than order 7 should be set aside on the grounds contained in the court’s reasons.  Your Honours will see that at volume 1, pages 210 to 212.

Now, your Honours, what was contended for was that the question of jurisdiction had only been touched upon, most lightly, in the argument that had taken place before the court and was asked that the court reconsider it.

Your Honours, I will not go through the detail of it, but may I just say that the submissions we filed, in particular pages 222 to 224, did not ever suggest that there should be an order of the nature such as order 2 made by the Full Court of the Federal Court.  Your Honours, could I, in that regard, finally refer your Honours to paragraph 16 of the Full Court’s later reasons of 9 March at page 262 in volume 2.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take in this matter.

AT 3.36 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.42 PM:

GLEESON CJ:   The Court is in a position to announce that it is of opinion that the declarations made by the Full Court of the Federal Court of Australia on 9 March 2000, that is to say:

1.  Order 7 of the orders of the court on 16 June 1999 is invalid for want of jurisdiction.

2.  The Federal Court of Australia had no jurisdiction to hear and determine the proceedings brought by Australian Securities and Investments Commission against Yandal Gold Pty Ltd, Yandal Gold Holdings Pty Ltd, Edensor Nominees Pty Ltd, Normandy Mining Limited, Normandy Mining Finance Limited, Normandy Consolidated Gold Holdings Pty Ltd, and Normandy Mining Holdings Pty Ltd under the Corporations Law –

should be set aside and that the Full Court of the Federal Court of Australia should now hear and determine the appeal by Edensor Nominees Pty Ltd on the merits of the appeal, that is the matters raised by grounds 5, 6, 7, 8, 9 and 10 of the supplementary notice of appeal dated 24 August 1999. 

Accordingly, in Matter M20 of 2000 there will be the following orders:

1.  Special leave to appeal is granted, and the appeal is treated as instituted and heard instanter and allowed.

2.  Set aside paragraphs 1 and 2 of the declarations made 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 appellants’ costs. 

Each of the other applications for special leave to appeal is dismissed and each of the orders nisi is discharged.  In each of those applications there will be no order as to costs.

Yes, Mr Young.

MR YOUNG:    If the Court pleases, there are two matters arising out of those orders we would like to raise.  First, I think your Honour’s announcement mentioned orders nisi.  I do not think orders nisi were made, rather the applications for orders nisi were referred to the Full Court.

GLEESON CJ:   Is that right?

McHUGH J:   I thought Justice Hayne made them, but I may be wrong.

MR YOUNG:   Yes, I think it is at page 342 and the applications for order nisi were referred.

GLEESON CJ:   Then we will alter the order to say “each of the applications for orders nisi is dismissed”.

MR YOUNG:   Yes.  Secondly, in relation to ‑ ‑ ‑

GLEESON CJ:   Just before you move onto the second point.  I will amend what I just announced as the order.  Each of the applications for special leave to appeal is dismissed and each of the applications for order nisi is dismissed.  Yes.

MR YOUNG:   Secondly, in relation to the matter of costs, we would submit that the appropriate order should be a modification of that your Honour announced.  We have sought likewise that the orders - declarations made by the Full Court are to be set aside, and that was the subject matter of our application.  The parties have differed only in their view as to whether the reasons of the Full Court that went to matters of jurisdiction, on the one hand, or power, were correct or not, but all parties, certainly my clients, sought to have the orders made by the Full Court set aside, because it was our contention that they were wrongly made and jurisdiction existed and, in those circumstances, we would submit that the appropriate order should be, at the very least, that each party bear its own costs.

McHUGH J:   But you could have come up and consented to the orders being set aside.

MR YOUNG:   Well we did.

KIRBY J:   You asked for it, I think, but this was an application for special leave so it was not within your gift to consider it.

MR YOUNG:   Yes, that is so, but we sought to have the order set aside.  If the Court pleases.

GLEESON CJ:   Yes.  Are there any other submissions anybody wants to make about the costs order?

MR JACKSON:   Your Honour, I would simply seek to resist what my learned friend said and, may I just say in relation to that, that if one looks at the substance of the matter there was a distinct difference of view, whatever be the precise form, which the court’s announcement means has been resolved adversely to the respondent, that being the question, the substantial question, whether, for example, there was jurisdiction to make order 7, which was the issue dealt with by the Full Court of the Federal Court and that issue was one which has been resolved against our learned friends.

KIRBY J:   But surely that depends upon the ground on which that order is made, which is not yet revealed - - -

MR JACKSON:   I am sorry, your Honour, I appreciate that, but ‑ ‑ ‑

KIRBY J:   - - - because it is the case that, certainly Mr Hayes, and by inference, Mr Young, was seeking to have the order 7 set aside.

MR JACKSON:   Yes, your Honour; they were seeking to have the order set aside in the court below.

KIRBY J:   So they have got the order they wanted?

MR JACKSON:   Well, your Honour, my learned friend says no, but, if one looks at the paragraphs of the Full Court’s reasons, to which I took the Court earlier, one sees they said the substantial matter argued was the ability to grant the orders in question.

GLEESON CJ:   Thank you.

MR MARTINDALE:   May it please the Court, on behalf of Edensor I just wish to adopt Mr Young’s submissions.  If it please the Court.

GLEESON CJ:   There will not be any variation to the order for costs as announced.  .

AT 3.49 PM THE MATTER WAS CONCLUDED