Collins, Edwin Kerry v Update Marketing Pty Ltd

[1987] FCA 440

C A T C H W O R D S

PRACTICE - application of State legislation by Federal Court -

5.79 Judiciarv Act - s.371(2) Companies (Oueenslandl Code -

leave of Supreme Court required before continuatlon of

proceedings in Federal Court.

Judiciarv Act 1903 (Cth.) s.79

Companies (Oueensland) Code s.371(2)

Edwin Kerrv Collins

v. Update Marketins Pty. Ltd. & Anor.

Qld G26 of 1987

PINCUS J.

BRISBANE

19 AUGUST 1987

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY ) QLD G26 of 1987

GENERAL DIVISION )

BETWEEN: EDWIN KERRY COLLINS

Appllcant

AND: UPDATE MARKETING PTY. LTD.

First Respondent

AND: ARTHlTR JOHN THOMAS HIVON

Second Respondent

MINUTES OF ORDER

J U W E W I N G ORDER: PINCUS J.

DATE OF ORDER:	19 AUGUST 1987
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

The application for judgment be adjourned to	a date
to be fixed by the Registrar.

m:

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	) QLD G26 of 1987
GENERAL DIVISION	)

BETWEEN: EDWIN KERRY COLLINS

Applicant

A N D : UPDATE MARKETING FTY. LTO.

First Respondent

AND: ARTHUR JOHN THOMAS HIVON

Second Respondent

PINCUS J. 19 AUGUST 1987

REASONS FOR JUM;MENT

This is an application for Judgment in default of

defence. The applicant has brought proceedings against two

respondents, the first of which is a company which has recently

been placed in llquidation. Prior to that it had made default In

filing its defence, and	Mr. Galloway of counsel	has appeared to
ask for judgment.

Counsel, however, has raised the question whether the

provisions of s.371(2) of the Companies (Oueensland) Code are a

bar to the application. That provision reads as follows:

“Where an order has been made for the winding up of

a company, or a provisional liquidator has been

L .

appointed in respect of a company, no action or

other civil proceeding may be commenced or

proceeded with against the company except	-
(a) by leave of the Court; and

(b) in accordance with such terms as the Court

imposes. "

In L. Grollo & Co. Pty. Ltd. v. Nu-statt Decoratins Pty.

Ltd. (No. 2 ) (1980) 47 F.L.R. 44, Smithers J. ordered a stay of

proceedings brought in his Court against a company in

liquidation, holding that 5.79 of the Judiciary Act 1903 (Cth.)

made the provisions of s.263(2) of the Companies Act 1961 (Vlc.)

applicable; its terms are very similar to those of s.371(2)	of the
Companies (Oueensland) Code.

That case was followed by Toohey J. in Seymour v.

Southern Districts Video Pty. Ltd. (1985) 59 A.L.R. 154. Hls

Honour pointed out that the basis of the decision of Smlthers J. was that the relevant State provislon applied "not by force of

State legislation but by force of federal legislation VIZ. 5.79 of

the Judiciary Act" (p.157). Insofar as s.371(2) inhiblts

commencement and pursuit of proceedings in court, it 1s not a

State law which refers explicitly to a particular State court -

see per French J. in Bond Corporation Pty. Ltd. v. Thiess

Contractors Ptv. Ltd. (1987) 71 A.L.R. 125 at p.139; It is one of

the same character, in my view, as the Commercial Arbitration Act

1985 (W.A.) there dealt with by his Honour, i.e. it "applies to

courts generally, although as a matter of construction it would be

limited in its direct application to" Queensland courts. Of

course, the "Court" mentioned in s.371(2) as having power to glve

t 3 .

leave is a State court, the Supreme Court: see c1.3 of sch.1 of

the Companies and Securities (Interpretation and Miscellaneous

Provisions) (Application of Laws) Act 1981 (Q.).

Reference was made during the hearing to the

inconvenience and expense caused the applicant by the need to go

to the Supreme Court for leave to pursue this matter and to the

prospect that the proposed cross-vesting leglslation would prevent

a recurrence of this sort of incident. Mr. Galloway also referred

to the possibility that this court might have accured jurisdiction

to grant leave, but he did not argue positively that there is such

jurisdiction. Following the decisions of Smlthers J. and Toohey

J., to which I have referred, I hold that leave of the Supreme

Court is necessary and adjourn the application for judgment to a

date to be fixed by the Registrar.