Dawson v The Queen

[2001] HCATrans 418

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P46 of 2000

In the matter of -

An application for a Writ of Certiorari against THE HONOURABLE JUSTICE NEVILLE JOHN OWEN, a Judge of the Supreme Court of Western Australia

First Respondent

CHRISTMAS ISLAND RESORT PTY LTD

Second Respondent

JEFFERY LAWRENCE HERBERT

Third Respondent

Ex parte –

ROBBY SUMAMPOW and HERMAN TJAHJAHDI GANI

Applicants/Prosecutors

Office of the Registry
  Perth  No P53 of 2000

B e t w e e n -

ROBBY SUMAMPOW, JOKKY HIDAYAT, KWIK SOEN HOEK, and HERMAN TJAHJAHDI GANI

Applicants

and

MERCATOR PROPERTY CONSULTANTS PTY LTD

First Respondent

CHRISTMAS ISLAND RESORT PTY LTD (Receiver and Manager Appointed)(in Liquidation)

Second Respondent

Application to Dismiss for Want of Prosecution

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON MONDAY, 10 SEPTEMBER 2001, AT 2.17 PM

(Continued from 3/9/01)

Copyright in the High Court of Australia

MR K.G. ROBSON:   Your Honour, I appear with MR T.S. SU.  (instructed by Su & Co)

HIS HONOUR:   You appear for the applicants in the substantive proceedings, the respondents to the summons for dismissal for want of prosecution?

MR ROBSON:   That is right, your Honour.

HIS HONOUR:   Mr Buss, you are appearing for the second and third respondents in the first proceeding and for the first respondent in the second proceeding.  I have a note from the Deputy Registrar indicating that in each matter the Honourable Justice Owen of the Supreme Court of Western Australia does not wish to take part in these proceedings, and by his associate he has signified that he will submit to the order of the Court save as to costs.

MR M.J. BUSS, QC:   Your Honour, I appear with MR N.A. ODORISIO.  It is actually for the second respondent, Christmas Island Resort Pty Limited, that we appear in matter No 53 and for the second and third respondents, as your Honour mentioned, in matter No 46 of 2000.  (instructed by Clayton Utz)

HIS HONOUR:   Thank you.  What do you say?

MR BUSS:   Your Honour, we have filed and served in support of our applications to strike out an original outline of submissions and we have also filed and served quite recently, last night I think, by facsimile an outline in reply to our learned friend’s outline which we received late Thursday afternoon.  There is very little that ‑ ‑ ‑

HIS HONOUR:   Let me make sure that I have this.

MR BUSS:   Yes, the outline in reply, your Honour, is dated 9 September 2001.

HIS HONOUR:   I am not sure that I have that.  Is that the five‑page document dated 9 September 2001?

MR BUSS:   It is, your Honour.

HIS HONOUR:   Yes, I have that.

MR BUSS:   I do not know whether your Honour has had an opportunity yet to read ‑ ‑ ‑

HIS HONOUR:   Yes, I have had a quick look at it.  Now, the question that immediately goes through my mind when I can eventually overcome my dissatisfaction with the dilatory prosecution of the original proceedings by the applicants is that you did not move originally to strike out their applications on the basis that they were rendered futile by the supervening decisions in Re Macks and Spalvins.  You were not moved to take any proceedings by way of the present summonses until the sheer delay on the part of the applicants caused you to do so.

That leaves me in a state of some uncertainty, that the decisions of the Court in Macks and Spalvins do determine all of the issues in the applicants’ original proceedings, because had you been of the opinion that because of those two decisions of the Court, those proceedings were rendered nugatory and pointless, one might have expected that you would have moved the Court immediately after at least Spalvins to that effect but, instead, it was the delay that occasioned your motion and that delay would sound now in costs but would not, I think, warrant removing the proceedings from the Court’s list.  So what do you have to say to that?

MR BUSS:   Your Honour knows from the affidavits of Mr Odorisio that have been filed in these proceedings that for some months Clayton Utz, the solicitors who instruct me, wrote to Su & Co seeking some explanation ‑ ‑ ‑

HIS HONOUR:   I know all that, and you were present ‑ ‑ ‑

MR BUSS:   I appreciate that, your Honour ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ last week and I indicated quite forcefully my dissatisfaction with Mr Su’s conduct of the proceedings, but if the essence of your complaint was that the supervening decisions destroyed the basis of the proceedings, then one would have expected you to move the Court immediately after those decisions.  But your complaint was, as it were, tacked on to your very legitimate complaint about the delay on the part of the applicants.

MR BUSS:   Your Honour, merely because the strike‑out application was made in the alternative does not rob it of its legal force, in our submission.  One might have expected – and I would need to take instructions on this –that in the light of the decisions of this Court in Spalvins and Re Macks, that an applicant in these circumstances might simply have been expected to discontinue their applications.  In those circumstances, it is not for the respondents – no onus lies on the respondents to, in fact, bring immediately a strike‑out application, having regard to the decision of this Court in those two cases.

So, in our submission, whether for whatever reason an application was not brought immediately to strike out, is no reason why this application should not be adjudicated now on its merits and if, in fact ‑ ‑ ‑

HIS HONOUR:   I thought there was some merit in the submission put to me, albeit very belatedly, by Mr Robson for the applicants, that when one actually examines what the Court has found as a matter of binding rule in the Spalvins Case, for example, and combines that with Macks, then really the only provision of the 1999 State legislation that comes through with flying constitutional colours is section 11.  The Court did not have to decide the validity of the other provisions and therefore, given the disparity in the reasoning on the other provisions, the question is whether I should now come to a conclusion myself, being myself of a minority view on the provisions of the Act, that there is no arguable point concerning the provisions within the holding of the Court that is binding.

MR BUSS:   In our respectful submission, your Honour, the judgments of the seven Justices in Re Macks do reveal a solid majority in support of the proposition that sections 6, 7 and 8 of the State Jurisdiction Acts were valid. Admittedly it was not necessary for, and the Court did not in that case, make declaratory orders in relation to those sections but it is plain, in our submission, from an analysis of the judgments that there was a clear majority of the Justices in support of the proposition that those sections were not directly or indirectly inconsistent with the Federal Court of Australia Act and also that the State Jurisdiction Acts were not repugnant to Chapter III of the Constitution. That being so, it does not fall, in our respectful submission, for a single Justice hearing a strike‑out application to determine whether or not the application by the applicants is arguable or not to refer to his or her own dissenting view.

HIS HONOUR:   No, I did not say that and I would want you to be very clear.  My duty is to conform to the decision of the Court, not to my own view.  Although I adhere to my view, my duty as a Judge is to conform to the Court’s opinion.  But the Court’s opinion was not expressed in a single reason decision; it is expressed in a variety of ways.  I would not be inclined to hold a party out of arguing a point before the Court if the matter has not been determined conclusively by the Court because, if the party wishes to argue the question, then ordinarily, so long as there is some reasonable point to be argued, they should have that opportunity.

It is not a question of my following my own star – that would not be a correct thing to do – but it is my duty to try to find the star that the Court has been sailing by.  My impression is that when one undertakes that search and does so by reference to the orders actually made by the Court, which is the foundation of discovering what the binding rule of a decision is, the orders do not appear conclusively to determine the validity of all of the provisions of the State Jurisdiction Acts which the applicants wish to challenge in this Court.

MR BUSS:   In our submission, an analysis of each of the majority judgments in Re Macks does indicate that in terms of the legal conclusion which was critical in that case that those Judges did speak with one voice.  The critical point, in our submission, is the conclusion of each of the majority Justices in relation to whether or not it could be said that the State Jurisdiction Acts were either inconsistent with the Federal Court of Australia Act or whether they were repugnant to Chapter III of the Commonwealth Constitution.

Beyond that, the applicants in the present case have not, in our respectful submission, raised any coherent argument which it is contended escaped the attention of any of the Justices in Re Macks or any of the counsel who appeared in that case and it would be necessary, in our submission – I am sorry, your Honour ‑ ‑ ‑

HIS HONOUR:   Tell me, what are the provisions that – if we take matter No P53, which are the provisions of the State Jurisdiction Act that the applicants wish to challenge in this Court, because section 11 is definitely out?

MR BUSS:   Yes.

HIS HONOUR:   The question then becomes whether all of the other sections which they seek to challenge are similarly disposed of by the decisions in Macks or Spalvins or both.

MR BUSS:   Well, your Honour, the key issue is to look at the notice of motion for removal which is dated 4 July 2000 in matter 53 of 2000.

HIS HONOUR:   Just a moment. I am looking at the notice of motion dated 4 July 2000, and that refers to sections 6, 7, 8 and 10.

MR BUSS:   Yes, that is right.

HIS HONOUR:   Very well.  Now that is what we have to focus on.  Now, you take me to Macks and show me where the Court has decided those sections and you are out in front in relation to your strike‑out application.

MR BUSS:   Yes.  If we start with the judgment of the Chief Justice, your Honour, your Honour will see that ‑ ‑ ‑

HIS HONOUR:   Just give me the paragraph number where his Honour refers to 6, 7, 8 and 10.

MR BUSS:   Yes. His Honour commences at paragraph [13] and refers there to section 6.

HIS HONOUR:   Yes.  His Honour sets out the sections, 6, 7, 8.

MR BUSS:   Then in paragraph [17] ‑ ‑ ‑

HIS HONOUR:   His Honour does not seem to set out section 10 – yes, it is there on page 549 of the ALR Report.

MR BUSS:   Yes.

HIS HONOUR:   Yes.

MR BUSS:   Yes, but in terms of his Honour’s analysis of the relevant sections, in paragraph [13] his Honour refers to section 6.

HIS HONOUR:   Yes.  He refers to all of the sections which the applicants challenged.  Now, take me to where his Honour upholds the validity of those sections.

MR BUSS:   Yes, and then paragraph [17], I would refer your Honour to the last eight or nine lines of that paragraph.

HIS HONOUR:   Yes, and he says that that is where the substantial area of the dispute in the matter lies, so one would expect that he would deal with that substantial area of dispute.

MR BUSS:   Then paragraph [24], his Honour says:

For the purposes of the present case, the question that must be decided is whether, having regard to the proposition just accepted, ss 6, 7 and 8 of the State Jurisdiction Acts are inconsistent with the Federal Court Act –

et cetera.

HIS HONOUR:   Now, in both the paragraphs you have just referred to, there is no reference to section 10 of the Act.

MR BUSS:   That is true, your Honour.

HIS HONOUR:   What is section 10 dealing with? Let me go back and remind myself of this pleasant task of looking at these Acts.

MR BUSS:   Yes.

HIS HONOUR:   Just a moment. Yes, very well. Now, where does his Honour dispose of those arguments in relation to sections 6, 7 and 8?

MR BUSS:   Having posed the question in paragraph [4] that the question is whether or not those sections are inconsistent with the Federal Court Act, his Honour then considers those points in paragraph [25] and then in paragraph [26] he says:

There is no direct inconsistency involved in a state law declaring the existence of a right or liability which is the same as that arising, directly or indirectly, under a Commonwealth law.  The question is whether the Commonwealth law evinces an intention –

to cover the field.  His Honour says that in paragraph [26].  Then in paragraph [28] his Honour says:

The Federal Court Act does not evince an intention to cover a field which includes the rights and liabilities of persons affected by orders, valid or infirm, of the Federal Court.

In paragraph [29] his Honour refers to it being:

unnecessary to decide whether there is inconsistency between the appeal rights  . . . If there were such inconsistency the state Acts could, and should, be read down.

HIS HONOUR:   That question is not raised by the applicants in their application, I think, the appeal provisions.  Is that correct?

MR BUSS: Mr Robson tells me from the Bar table that it is and he refers to section 10, but section 10(1) of the State Jurisdiction Acts provides merely that:

The Supreme Court may vary, revoke, set aside, revive or suspend a right or liability conferred, imposed or affected by section 6(a) or 6(c) as if it were a right or liability conferred, imposed or affected by the Supreme Court in or in relation to proceedings of the kind in or in relation to which the ineffective judgment was given or recorded.

So that section 10 in substance, in our submission, is not a provision relating to appeals, but it is a provision which confers on the Supreme Court of Western Australia a power to “vary, revoke, set aside, revive” et cetera rights or liabilities which are created under the State Jurisdiction Acts in a way that is correlative with, or corresponds to, the rights or liabilities that would otherwise have arisen under the impugned Federal Court order, so that is not a matter which is dealing with appeals.

HIS HONOUR:   Yes, but what was the appeal rights purportedly given by the State Jurisdiction Acts that the Chief Justice was referring to in paragraph [29]? Is that another provision of the State Jurisdiction Act, other than section 10? Is there some other provision that deals with appeals?

MR BUSS:   Yes, there is.  Let me just turn that up, your Honour. 

HIS HONOUR:   Was that section 11 that was dealt with in Spalvins?

MR BUSS:   Section 11 deals with appeals in the context of section 11(3), but there is nothing that we have apprehended in the applicants’ submissions which raises that issue of appeal rights, in our submission.

HIS HONOUR:   Well, it has not reached the appeal stage yet, has it, or has it?

MR BUSS:   No.  There was a decision made by Justice Owen, which was then the subject of an appeal to the Full Court and it was in the context of that appeal that this application was made to remove constitutional issues into this Court.

HIS HONOUR:   All right. Well, press on. We have sections 6, 7 and 8 being dealt with by the Chief Justice but not section 10.

MR BUSS: That is true, your Honour. I will come back to look at section 10 in a moment, but our submission is simply that when one looks at sections 6, 7, 8 and 10, there is no relevant point of distinction between section 10 on the one hand and 6, 7 and 8 on the other which could, on any reasonable view, be expected to give rise to a different decision. In other words, the reasoning and conclusion of the majority Judges in Re Macks in relation to 6, 7 and 8 applies equally in relation to section 10.

HIS HONOUR: You may say so, but the Chief Justice did not feel it was appropriate, although the matter was in issue, to deal with section 10. We will just put that to one side. You might be correct that the logic of the argument in relation to 6, 7 and 8 carries section 10, but let us see if we have a clear majority of the Court on 6, 7 and 8. If we have that, we can at least put those sections out of the way.

MR BUSS: Yes. Can I just say in relation to section 10, although his Honour did set out section 10 in his judgment, that was in the context of setting out substantially the whole of the State Jurisdiction Act really by way of completeness and his Honour did not refer further to section 10 because it simply was not relevant on the facts of Re Macks.  Turning back to paragraph [30] in the Chief Justice’s judgment, having dealt with the argument based on inconsistency, his Honour says:

it was submitted for the applicants that the State Jurisdiction Acts represent an attempted interference with the jurisdiction of this court, or the Federal Court, or an attempt to confer jurisdiction upon the state Supreme Courts, which is repugnant to Ch III –

His Honour then says in paragraph [31], after referring to the decision of this Court in Reg v Humby:

The reason there given for rejecting a similar submission applies here.  Once again, it is to be found in the legal operation of the impugned legislation.  It does not purport to validate ineffective judgments.  It creates rights and liabilities of persons.  It does so by reference to such judgments; but it does not affect the judgments.

Therefore, the case for the applicants substantially failed because the State jurisdiction legislation did not purport to validate ineffective judgments but rather to confer on citizens rights and liabilities by reference to ineffective judgments.

That being so, his Honour held in paragraph [33] that there was utility in making an order absolute for a writ of certiorari “quashing the orders of the Federal Court” but, apart from that, “the orders sought by the applicants should be refused”. The orders that were being sought by the applicants were not only certiorari but also prohibition. The prohibition was designed to prevent the continuation of proceedings that were on foot in the Supreme Court of South Australia and the basis for seeking prohibition was the applicants’ contention that sections 6, 7 and 8 of the State Jurisdiction Acts were invalid. The Court having found, in our submission, by majority that 6, 7 and 8 were valid, then there was no basis for ordering prohibition.

It was really in that context that there was no declaratory relief sought by any party in relation to 6, 7 and 8.  It was simply argued by the applicants in that case that 6, 7 and 8 were invalid and for that reason prohibition should run.

HIS HONOUR:   Yes, just move on and tell me what Justice Gaudron and the other members of the majority found.

MR BUSS:   Moving onto Justice Gaudron, Justice Gaudron has dealt with this issue in paragraph [64] of her judgment, where she held:

As the State Jurisdiction Acts are not invalid by reason of “cover the field” inconsistency, it is necessary to consider whether, and, if so, to what extent there is direct inconsistency between those Acts and the Federal Court Act.

Her Honour deals with that point in paragraph [67].

HIS HONOUR:   Yes.

MR BUSS:   Her conclusions are summarised in paragraphs [83] and [84].  In [83] she says:

The State Jurisdiction Acts are valid save to the extent that they purport to allow for the modification of rights and liabilities embodied in a federal court order that has not been set aside –

et cetera.

HIS HONOUR:   That is the position here, is it not?  The order of the Federal Court has not been set aside or quashed.

MR BUSS:   That is true, your Honour, it has not been.

HIS HONOUR:   Yes.

MR BUSS:   In relation to Justice McHugh’s judgment at paragraph [88], his Honour says:

In my opinion, the impugned state legislation is valid.  The invalid orders of the Federal Court are not nullities because that court had jurisdiction to determine – even erroneously – that it had jurisdiction under a purported law of the parliament –

et cetera.

HIS HONOUR:   Yes.

MR BUSS:   He finds that there was no inconsistency, either direct or operational.

HIS HONOUR:   His Honour at paragraph [131] appears to deal with section 10.

MR BUSS:   Yes.

HIS HONOUR:   What does he say there about section 10?

MR BUSS:   He says in [132] that:

Section 10 necessarily requires the Supreme Court to determine whether the relevant judgment of the Federal Court is an “ineffective judgment”.

He then says:

As discussed below, this is an exercise of federal jurisdiction and necessarily converts the Supreme Court proceedings into proceedings in federal jurisdiction. Because that is so, no question of s 109 inconsistency can arise. The better view is that the issue of variation also remains in federal jurisdiction –

et cetera.  At the foot of that paragraph, in the last two sentences, his Honour says:

On that hypothesis, s 10 does no more than confer a power on the Supreme Court, in the exercise of state judicial power, to vary, revoke, set aside or otherwise give a judgment dealing with s 6 rights and liabilities. Section 10 does not confer a power on the Supreme Court to interfere with a Federal Court order.

Then in paragraph [133]:

A different problem raised by s 10 is whether there will be a resulting operational inconsistency between the varied s 6 rights and liabilities and the rights and liabilities under the order of the Federal Court, if that order has not been quashed or set aside. For the reasons set out below, the Supreme Court has jurisdiction to determine whether or not the order on the merits part of the Federal Court’s “ineffective judgment” was made without jurisdiction. Further, because the invalid part of the Federal Court order does not raise any question of s 109 inconsistency, no issue of operational inconsistency ever arises. Section 10 of the state Act is valid.

So his Honour at least does deal with section 10 even though that was not squarely raised as an issue, or does not appear to have been, by the parties.

HIS HONOUR:   What does Justice Gummow say?

MR BUSS:   Justice Gummow deals with these issues principally in paragraphs [209] and [232].  In [209] his Honour says:

Nor is there substance in the submission that, in its application to the Federal Court orders for the winding up in insolvency of companies in the Emanuel Group, the SA Act is invalid for repugnancy to the paramountcy given to the judicial power of the Commonwealth by Ch III of the Constitution –

et cetera.  Then at paragraph [232] his Honour says:

The extent to which the subject of orders in excess of jurisdiction or without jurisdiction is dealt with by the legislation is found in the somewhat indirect means provided in s 5 . . . The submissions based upon s 109 of the Constitution should not be accepted.

HIS HONOUR:   He does not appear to deal specifically with section 10.

MR BUSS: No, that is right. Section 10 does not appear to have been a section that was squarely raised by the litigants in that case. They relied upon sections 6, 7 and 8 as being the provisions that were relevant to the facts of the case before the Court.

HIS HONOUR:   You can pass by my reasons because I was in dissent.  They are an appeal to the future.  Then there are Justices Hayne and Callinan.  What did their Honours decide?

MR BUSS:   The key provisions of their judgments are to be found in paragraphs [351], [353] and [367].  If we start at [351], your Honour, their Honours say:

It is essential to bear steadily in mind that the State Jurisdiction Acts do not, in their terms, seek to “alter, impair or detract from” the operation of an order made by the Federal Court.  They seek to create separate rights and liabilities, using the order of the Federal Court only as a point of historical reference.  They provide for the variation or adjustment of the rights and liabilities which are thus created, not for the variation or adjustment of Federal Court orders.  For this reason, there is no direct inconsistency between that Act (or the Federal Court order, the factum through which the Federal Court Act operates) and the State Jurisdiction Acts.  They simply do not intersect.

Then at paragraph [353] their Honours say:

Here, however, there is no intrusion by the state legislatures upon any field covered by Commonwealth law.  The rights and liabilities which the state Acts create, and for the adjustment or variation of which they provide, do not derive from what the Federal Court has done.  The order of the Federal Court is, as we have said, no more than a factual point of reference for the creation of those rights and liabilities.

HIS HONOUR:   Yes, and then they go on to deal with Humby. At paragraph [366] they appear to deal with section 10. What do their Honours say about that?

MR BUSS:   Yes, what their Honours say is this.  In paragraph [361] they say:

The existence and extent of an inconsistency depends upon the particular Federal Court order and upon the nature of the change which is made on appeal or on application under s 10. Particular attention must be directed to the form and content of the Federal Court order. In cases such as the present, account must be taken of two features. First, a winding-up order made under the Corporations Law is an order which the Corporations Law contemplates may be varied in certain respects. The liquidator named in the winding‑up order may be removed, released or replaced; the winding up may be stayed or terminated. Ordinarily, it might have been expected that these steps would be solely in the power of the court which ordered the winding up. The Corporations Law provides, however, in s 58AA(1), that:

“Court” means any of the following courts when exercising the jurisdiction of this jurisdiction:
(a) the Federal Court;
(b) the Supreme Court of this or any other jurisdiction;
 . . . 

Accordingly, when provisions dealing with matters like removal or release of a liquidator, or stay or termination of the winding up, permit the “Court” to make such an order, it is clear that the Corporations Law contemplates that the order may be made by a court other than the court which ordered the winding up.

That is relevant to section 10 because, of course, your Honour, under section 10 there is express provision for the Supreme Court of Western Australia ‑ ‑ ‑

HIS HONOUR:   Yes, I have seen that.

MR BUSS:   ‑ ‑ ‑ to “vary, revoke” or “set aside” rights or liabilities, but it does not relate to the impugned judgment itself, but rather to the rights or liabilities which the State Jurisdiction Act itself creates.

HIS HONOUR:   Well, on my count you have a clear majority on sections 6, 7 and 8, and you have at least three Justices, namely, Justice McHugh, Justice Hayne and Justice Callinan, on section 10.

MR BUSS:   Yes.

HIS HONOUR:   Do you wish to challenge my count?

MR BUSS:   No, I do not.

HIS HONOUR:   That is one thing one learns in this place to do, to count.

MR BUSS: Yes, it is most important, your Honour, most important. The only submission that we have in relation to section 10 is that the reasoning, we would submit, of the Chief Justice and also of Justice Gummow is – at least the reasoning of those two Justices in relation to sections 6, 7 and 8, would be expected to yield the same outcome in relation to section 10.

HIS HONOUR:   Yes, I think that is possibly fair.  Is that all the relief that the applicant seeks in the original process?

MR BUSS:   Yes.  If one looks at the notice of motion for removal in matter 53 of 2000, the questions which are posed are set out.

HIS HONOUR:   Yes, I see those.  There is no need for you to go back to those.  Now, what about the other proceedings?

MR BUSS:   In the other proceeding certiorari is sought to quash orders made by his Honour Justice Owen of the Supreme Court of Western Australia.  There is the notice of ex parte motion.

HIS HONOUR:   Where is that?

MR BUSS:   My copy does not bear a date.  It is in P46 of 2000.  My copy does not bear a date but ‑ ‑ ‑

HIS HONOUR:   This is challenged on the basis that it was made under the Federal Courts (State Jurisdiction) Act?

MR BUSS:   Yes, that is right.  That is, I suppose, clearer from the draft order nisi for a writ of certiorari.

HIS HONOUR:   That is what I am looking at.

MR BUSS:   Yes.  At the foot of page 2 it is said:

Upon the grounds that:

1         The orders of the First Respondent treating Federal Court WG 3017 and 3031 of 1998 as proceedings of the Western Australian Supreme Court are invalid in that the Act they were made under, namely the Federal Courts (State Jurisdiction) Act 1999 (WA), offends the integrity of the State judicial system that is guaranteed by Chapter III of the Commonwealth Of Australia Constitution Act 1901.

So it raises that same issue.  The second ‑ ‑ ‑

HIS HONOUR:   That runs head-long into Re Macks and into the majority view on that.

MR BUSS:   That is correct, in our respectful submission.

HIS HONOUR:   What about the second order?

MR BUSS:   The second order is that:

The orders of the First Respondent directing the ‑ ‑ ‑

HIS HONOUR:   They are consequential on the first order.

MR BUSS:   Indeed, they are.

HIS HONOUR:   What is the power of this Court to grant certiorari standing alone? The Court grants certiorari to make good the grant of a constitutional writ under section 75(v). Am I to infer that this is a grant of certiorari standing alone pursuant to a different jurisdiction, namely, section 76(i) of the Constitution, together with the Judiciary Act section 30(a)? Is that how you understand it?

MR BUSS:   That is how we understand it would be put, but we are not clear that that is the argument that the applicant advances, but we presume that that is so, your Honour.

HIS HONOUR:   Very well.  Perhaps I had better hear what the applicant has to say.  Thank you for your assistance.

MR BUSS:   Thank you, your Honour.

HIS HONOUR:   Yes, what do you say, Mr Robson?

MR ROBSON:   If it please your Honour, may I just briefly note what your Honour had already noted and that is that there are substantial questions as to whether the original application brought by the second respondent may be, if you like, converted into what is now being put.  There are, we say, important constitutional issues.  We refer to the ‑ ‑ ‑

HIS HONOUR:   You say there are, but when one actually goes through Re Macks, it looks as though something of a hatchet job has been done on your constitutional issues.  There does not seem to be anything left.  I mean, if I were the sole Justice of the High Court of Australia, you would probably have a pretty good run, but alas, on this matter I am in dissent, and the clear authority of the majority supports the propositions that have just been put to me. 

MR ROBSON:   What we say to that, your Honour, is that the second respondent concedes that the facts are different in his submissions, but he does say that, of course, the  ‑ ‑ ‑

HIS HONOUR:   But that does not matter.  If we look at what the Court has actually held, the Court has – I mean, it was a very important and urgent matter because it affected thousands of cases that had been disrupted by the unfortunate consequences of Re Wakim, but therefore it was important that the Court should determine whether or not these provisions of the 1999 State Jurisdiction Acts were valid. So, it was not a theoretical; it was a question of general importance. When one analyses them, as I have just been assisted to do, it is absolutely clear that there is a majority at least of four Justices that sections 6, 7 and 8 are valid and there are three Justices who support section 10 and the reasoning of the Chief Justice and Justice Gummow appear also to support the validity of section 10. Now, that seems to knock your legs away, I am afraid.

MR ROBSON:   I will get to that in a moment, but may we do what your Honour did a moment ago, and that is to look at the actual orders at pages 642 and 643 of the ALR decision.  Your Honour will see there that, as your Honour already indicated, what was decided about the Act is very limited.  There are six orders that refer to the writ of certiorari that was sought and orders absolute were granted.  Order (7) provided liberty to apply with regard to a further writ of certiorari or…..order of Justice O’Loughlin.  Order (8) merely says in only six words:

Applications for writs of prohibition dismissed.

Then there are two costs orders.  That is what we say is the kernel of the issue now.  There was no, by any means, broader statement that the State Jurisdiction Acts are valid and no doubt the High Court was very wise, if we may say so with the greatest of respect, to do precisely what it did, to look only at the question of whether the liquidator should be prohibited from proceeding further in his actions for negligence, breach of fiduciary duty and what may be loosely referred to as voidable preference litigation.

HIS HONOUR: Can I ask you this. Given that the composition of the Court has not changed, given that we have been taken to the reasoning of the Justices, given that the majority of the Justices expressed themselves with great clarity and certainty and definiteness as to sections 6, 7 and 8, what is the point of your coming here to try to persuade them that what they said was wrong, especially when one looks at the context? They were saying it in the context of a very urgent test case which was expedited before the Court in order to lay at rest the question of the validity of those sections of the State Jurisdiction Act. What is the point of your coming here to reagitate those matters? Why should the respondents be vexed by being brought here again when the Judges have disposed of those questions with such clarity?

MR ROBSON:   Your Honour will have a greater understanding of how the case was formulated and argued in Re Macks in particular, but what I read in the judgments is that there are two different ways of looking at what is put by the second respondent as being one issue.  We say it is not just one issue.  In Re Macks there was no doubt that the only thing the Court considered was whether the liquidator should be prohibited from pursuing litigation against barristers and solicitors, and I think possibly directors.  What we are looking at in this case though is something entirely different, something that predates all of that, something that comes first, namely the very liquidation itself.  Can I ask your Honour to bear that in mind.

Can I ask your Honour to turn to paragraph [29] where his Honour the Chief Justice says:

It is unnecessary to decide whether there is inconsistency between the appeal rights purportedly given –

My friend said to your Honour a moment ago that I said something across the Bar table with regard to what is meant by “appeal rights”.  What we understand that means is given further clarity by what her Honour Justice Gaudron says at paragraph [67].  In the middle of that paragraph her Honour says in the fifth line:

At a more fundamental level, however, there is direct inconsistency between s 6, to the extent of the “right of appeal” elaborated in s 7(2), and s 10 of the State Jurisdiction Acts and s 5(2) of the Federal Court Act ‑ ‑ ‑

HIS HONOUR:   Which paragraph is this?

MR ROBSON:   Paragraph [67] of Re Macks.

HIS HONOUR:   I am reading the right decision.  It is just that I was pausing over the wisdom of the Chief Justice.  Which is the appeal provision, in your submission, that the Chief Justice was referring to in paragraph [29]?

MR ROBSON: What we say is that his Honour is referring to section 7(2) and also section 10. This highlights, in our submission, how important it is to understand exactly what the Court decided. As soon as you do that, in our submission, you see immediately that the High Court never said anything other than that section 11 is valid. The rest have been very much left open. I will show your Honour in a moment that section 10 has been declared to be invalid if you do a count, as your Honour does.

If I can ask your Honour to refer to page 548 of the report. They set out all the sections, those pages. Section 7(2) is on 549. Your Honour sees there it says:

Without limiting section 6 or subsection (1) of this section, the rights and liabilities conferred, imposed or affected by section 6 include the right of a person who was a party to the proceeding . . . to appeal against that judgment.

Section 10, your Honour will see in the transcript in Re Macks, the Justices having some difficulty with why section 7(2) and section…..but at a later date I can show your Honour at great length – I can show your Honour where Justices in Re Macks had great difficulty with understanding these sections and reading them together, but section 10(1) says, at the bottom of page 549:

The Supreme Court may vary, revoke, set aside, revive or suspend a right –

and so on. In paragraph [67] Justice Gaudron is clearly talking about section 7(2) and also section 10. She then says at paragraph [83] that section 10 is invalid. By necessary implication we say that her Honour must be meaning that section 7(2) is also invalid. Her Honour says that the:

Acts are valid save to the extent that they purport to allow for the modification of rights and liabilities embodied in a federal court order that has not been set aside –

and so on. His Honour the Chief Justice at [29], in our submission, can only be meaning that the appeal rights are invalid. Section 10 certainly is invalid, but a more direct reference to section 7(2) could not be imagined. His Honour says “appeal rights”. He must be at least referring to section 7(2) as well as section 10.

HIS HONOUR:   Yes, but the Chief Justice says in paragraph [17] that he has to consider whether sections 6, 7 and 8 are valid. He then proceeds to consider in [24] the question of operational inconsistency; [26] “direct inconsistency”; and [28], covering the field. He concludes, by reference to the matter which he says has to be determined, namely, the validity of 6, 7 and 8, that they are not invalid, and he just says that he has to leave appeal rights to the future and does not determine appeal rights. At least there is a clear holding that 6, 7 and 8 are valid. Otherwise, he would have said not.

MR ROBSON:   Which paragraph is that, your Honour, where he says 6, 7 and 8 are valid?

HIS HONOUR:   At paragraph [17], just before the end of the paragraph, he records the:

contention that the State Jurisdiction Acts, and, in particular, ss 6, 7 and 8 of those Acts, are invalid.

That is where the substantial area of dispute in the matter lies.  Which matter?  The matter before the Court.  He then goes on to consider those sections.  If they had been invalid, you would have thought that his Honour, dealing with the “substantial area of dispute”, would have so held, but he does not.  All he says is, it is unnecessary to decide the suggested inconsistency of appeal rights, and he puts that to one side.

MR ROBSON:   Because those appeal rights do not arise in that case.

HIS HONOUR:   I am sorry, I cannot hear you.

MR ROBSON:   I am sorry.  We say the Chief Justice was wise to do no more that to state in paragraph [29] that:

It is unnecessary to decide whether there is inconsistency in the appeal rights –

That immediately, there being no other statements ‑ ‑ ‑

HIS HONOUR:   Now, if you can show me that a majority of the Court have reserved the question of the appeal rights in so far as you wish to challenge those provisions, I will permit you to do so.  It certainly would be inherent in my reasoning that the so-called appeal rights would be invalid, and Justice Gaudron appears to suggest that in paragraph [73].  Now, the Chief Justice simply reserves it.  So maybe you have three.  Do any of the other Justices reserve it or deal with it favourably to your argument?

MR ROBSON:   At paragraph [365] their Honours Justices Hayne and Callinan say that:

The argument for inconsistency therefore remains.  Its acceptance would not result, however, in the conclusion that the State Jurisdiction Acts are invalid (except, that is, to the extent of, and for the duration of, the inconsistency).

What it does, though, their Honours say:

If there were an inconsistency, it would prevent reliance upon s 6 rights unless and until the Federal Court order is quashed or set aside. Upon that order being quashed or set aside, the inconsistency would be removed –

So, on the reasoning by those two Justices, at present, the Federal Court orders not having been quashed or set aside, there is an inconsistency in this case, and that remains.  So we say the case must go forward at the very least ‑ ‑ ‑

HIS HONOUR:   That being relevant to the appeal rights; is that the point you are making?

MR ROBSON:   Yes, their Honours say that the Acts create an operational inconsistency:

until the Federal Court order is quashed or set aside.

It is not, in our submission, clear whether they just mean the appeal rights and, further, what exactly they meant by “the appeal rights” because they do not use that phrase, but there certainly is an inconsistency, and on the facts of this case, there is still an inconsistency, and section 7(2) and 10, in our submission, cannot be relied upon because they are invalid.

HIS HONOUR:   You say that, but when you look at the paragraphs that I have been taken to by Mr Buss, it does appear that at least in Chief Justice Gleeson, Justice McHugh, Justice Gummow, Justices Hayne and Callinan, sections 6, 7 and 8 are upheld. The most you can hope for is in relation to section 10. What are the appeal right provisions? Where do I find those?

MR ROBSON:   Page 549 and 550 – 549, anyway.

HIS HONOUR:   Yes, which is the subsection ?

MR ROBSON: Section 7(2) and also section 10.

HIS HONOUR:   Yes.

MR ROBSON:   Our submission, your Honour, is that the Chief Justice did no more than say that if there is any inconsistency, then it may be read down. He clearly said that it is arguable that there is some invalidity in the Act. Justice Gaudron said that there definitely is invalidity in the Act. Justice Gummow said at paragraph [230] that there was not any inconsistency on the facts in that case. Your Honour, of course, said that the whole Act was invalid. Justices Hayne and Callinan said that there is an operational inconsistency but it can be removed once the Federal Court orders are quashed and set aside. We say that on the question of the appeal rights alone, which includes part of section 7, that there is a clear majority – it is probably six to one, counting it the way we would look at it.

As to the other sections, the important section for this case is section 6. What the second respondent’s liquidator relies upon is the clear statements ‑ ‑ ‑

HIS HONOUR: Section 6 has undoubtedly been upheld as valid.

MR ROBSON:   No, it has not, not in our submission.  It is just that the rights relied upon by the liquidator in Re Macks did survive and were protected by section 6. The question is whether the right the liquidator relies upon in this case is protected by section 6.

HIS HONOUR:   What is the difference in principle?

MR ROBSON:   There is no statement by any of the Justices that section 6, for example, is completely valid for all purposes. There is no such declaration, which is what you would ordinarily find in a declaration and especially in a test case.

HIS HONOUR:   No, but their Honours would only, in a test case or any other case, deal with the matter that was actually before them, but because of the importance of the case, they made observations of a general character concerning what they perceived as the validity, or in my case, invalidity, of the rest of the Act.  That is not unusual.

MR ROBSON:   The key to Re Macks, in our respectful submission, is that that liquidator in that case, Re Macks, was able to persuade the Court, six Justices, that all he needed was the right to pursue outside parties, parties extraneous to the liquidation, in voidable preference litigation, for example. 

He was able to persuade the Court, relying on Humby, that the State Jurisdiction Act did not at all for one moment create a judgment in the State Supreme Court. He was able to persuade their Honours that he just had a right that was extraneous to the liquidation because section 6 gives him a right. It gives all persons, all the citizenry if you like, the rights and liabilities that they would have had if the infirmed Federal Court orders had, in fact, been valid. It never, for one moment, creates a judgment in the Supreme Court, and that is the big difference in this case. This liquidator, in this case, can only succeed if he can show that the Supreme Court has jurisdiction, in fact, has a judgment that he can rely upon.

If one looks at what is precisely in issue here, factually speaking, the liquidator is relying upon directions that he obtained from Justice Owen in the Supreme Court, that he be at liberty to proceed with the sale of the assets of this company, namely the resort and the casino.  That is judicial advice.  That can only stem from a judgment.  That is not what is purported to have been given to the Supreme Court by the State Jurisdiction Act.  That is the one thing that all the Justices in this decision of Re Macks say certainly was not given, although, in fact, your Honour is the exception there because your Honour, we say respectfully, appreciated that there is a difference, perhaps in anticipation.  But the other six Justices did no more than say that the liquidator in that case was permitted to go extraneous to the liquidation and pursue defendants for voidable preference litigation. 

Here, the liquidator is relying upon his rights within the liquidation process. The liquidator is an officer of the court. He derives his powers and all his functions from the court, not from the State Jurisdiction Act, section 6, which gives him rights and liabilities. He derives it from the court itself. He needs a stayed judgment for that. He needs a judgment of the Supreme Court. The six, at least, maybe seven, Justices were clear that these Acts do not, for one moment, give the Supreme Court any judgment, if you like. There is no transferral of the proceedings. Section 11 merely treats the Federal Court infirmed proceedings as being Supreme Court proceedings. It gives them an action number, and that is all. Then, the liquidator stands outside all that and sues. This is a different case, your Honour.

HIS HONOUR:   Tell me this.  What is the state of the appeal that you would be wishing to challenge in the Court?

MR ROBSON:   Because the appeal rights are invalid, there is no purpose, in fact, in appealing the decisions in the Federal Court.  The submissions of the liquidator are redolent with the proposition that the applicants should have challenged, by way of appeal, the infirmed Federal Court orders.  Yet, Re Macks is authority for one thing, and that is that the appeal rights are invalid.  There is no possibility of an appeal within the Federal Court, of course, for appealing against infirm orders because the Federal Court has no jurisdiction.  That appeal would be equally infirm.

Then the question arises whether an appeal can be brought in the Supreme Court. That is a question dealt with in section 7(2) and section 10. We say Re Macks is clear that those appeal rights cannot be relied upon.  They are invalid. 

HIS HONOUR:   Well, it is hardly clear.  Their Honours did not have to deal with the matter in that case.  Their Honours in the majority – and therefore they did not deal with it.  But the issue of whether or not there are appeal rights is an important question, because one would normally expect that there would be appeal rights and the question would be whether or not the appeal rights purportedly given by this Act were valid.  But if you do not exercise them, then no question as to their validity can be determined.

MR ROBSON:   In fact, that may be so, your Honour.  The liquidators ‑ ‑ ‑

HIS HONOUR:   What would be the point of reserving to the Court, in this case, the question of the validity of the provisions of the State Jurisdiction Act of Western Australia to permit appeal, when you elected not to pursue it?

MR ROBSON:   Your Honour, perhaps I have not quite put the point as best as it could have been put.  What we say is that, your Honour, of course, was against the appeal right.  It is invalid according to your Honour.  Justice Gaudron said that the appeal rights are invalid.  That is two.  The Chief Justice said that this is reserved, in effect.  That is three.  Justice McHugh said the Acts are valid, but that is only one if favour of the liquidator so far.  Justices Hayne and Callinan said that there is an operational inconsistency.  They did not really look at that question anyway.  There is no way of forecasting at the moment what all seven Justices, or even a majority of them, would say with regard to the appeal rights if the specific appeal that your Honour is speaking about now had been ‑ ‑ ‑

HIS HONOUR:   I accept this and I understand the importance of the appeal right and the validity of the provisions of the State Jurisdiction Act which purport to give an appeal right to a State court effectively from an order or determination of rights of a Federal Court order.  I understand that.  That is an important question.  It does not appear as if it is a question that has been determined by this Court.  But you have not enlivened the supposed appeal rights.

The way in which one would expect that the validity of the provisions would be challenged would be if you enlivened them, pursued an appeal and lost, and then suggested that because you were forced into this procedure, as distinct from an appeal within the Federal Court or some other form of appeal, that the provisions are invalid.  Instead, you have simply sat on your hands.  I cannot see how, in those circumstances, you can challenge the appeal rights.  It is not a live issue.  It is not a relevant issue.  This Court does not determine academic points.

MR ROBSON:   No, but what is undoubtedly true is that the Federal Court orders are infirm, so the question is:  would there be any point in appealing against the Federal Court orders in the Federal Court?  No.  That would be infirm appeals.  Could we appeal in the Supreme Court?  We say the likelihood is, to say the least, that that appeal also would be invalid because those appeal rights are invalid.

HIS HONOUR:   Yes, but then if you exercise them and you are discontented with the outcome, then you have a basis in a live controversy between parties to bring your objection to this Court.  But if you do not exercise them, why would the Court listen to your contentions about the validity of the appeal provisions?  It is purely theoretical, from your clients’ point of view.

MR ROBSON:   It is theoretical but it does not advance the pursuit of the litigation.  It would just result in a declaration that those sections are invalid.  That would get neither the liquidator nor the applicants anywhere. 

HIS HONOUR:   Yes.

MR ROBSON: But what we do have is a definite proposition that the winding‑up orders are infirm and must be quashed or set aside. So then the onus is reversed, really, in effect, to the liquidator to then say, “Well, what right can I rely upon?” We say that that question has not yet been answered. Section 6, the key provision, has not been determined as a question of validity. Whether we appealed from the winding‑up orders themselves is a moot question. It would not advance the parties anywhere, we say.

What is clear, though, is that the net effect, if we were successful in appealing the orders – we would of course have the orders set aside or quashed.  We do that, anyway, because they must be set aside as a result or Re Macks.  Then we get to what is really at issue, not the appeal rights, but what is really at issue of whether the liquidator can rely upon the judicial advice that he obtained from his Honour Justice Owen.  That is the issue that we seek to raise and agitate.  The question of the appeal rights, that is an auxiliary argument.

HIS HONOUR:   The only way in which I can see that you can mount your argument is this, that your application to this Court to remove the matter into itself is because you contend that there is no lawful appeal within the Supreme Court of the State and that, consistent with that contention, the only way in which you can have that matter authoritatively determined is by bringing into this Court the question of the validity of the appeal provisions, namely, sections 7(2) and 10 of the State Jurisdiction Act, and that that is what you are attempting to do and that therefore that is an appropriate vehicle in which to present that question which has not so far been conclusively determined by the Court for the Court’s decision.

MR ROBSON: Well, your Honour, we raise, of course, the validity of sections 6, 7, 8 and 10 of the ‑ ‑ ‑

HIS HONOUR:   I know you do but I am not inclined, at the moment, to think that those are still live questions, having regard to the decision of the Court in Macks, but I am inclined to think that the Court has not yet conclusively determined the appeal provisions.  As I understand the way in which you put your case, at least so far as those are concerned, you say you want to bring the matter into this Court in relation to the validity of the appeal provisions because you contend that those provisions are invalid and, consistent with that contention, you have not brought an appeal within the State Supreme Court and that therefore, at the moment, you are bereft of appeal rights.  Now, is that correct or not?  Is that what you are putting or not?

MR ROBSON:   No, your Honour, that is not what we are putting, I was just addressing the issue of which sections have been declared to be valid or invalid, and I was ‑ ‑ ‑

HIS HONOUR:   I know, I have heard you on that and I am afraid I do not agree with you, so I am looking to see whether in the midst of the wreck there is anything that remains. The only little spark, a tiny plank that is floating in a very stormy ocean, is the possibility of an argument concerning sections 7, 2 and 10, being the appeal provisions, which the Court does not appear to have conclusively dealt with. Now, do you want to have those provisions referred to the Court or not?

MR ROBSON:   Mr Su tells me yes, your Honour.

HIS HONOUR:   Yes, very well.  I will just hear what your opponent has to say about that aspect of the case.  Is there anything else that you wanted to say in relation to the matters that are raised by the proceedings, Mr Robson?

MR ROBSON:   Yes, your Honour, and that is a further important factual issue.  There is a dispute about it, but the applicants are quite clear that this was never an insolvent company.  Certainly there are massive liabilities but almost all of them are owed to – they are loans made by the first-named applicants.  We say that the first-named applicant further made it clear to the liquidator that he would subordinate his debt and pay out the creditors, but he just wanted to make sure they were proved first and he did engage chartered accountants, Arthur Anderson’s office in Indonesia, to do that.

That, once again, strikingly highlights the fundamental differences between Re Macks and this case.  This was never, on our case, an insolvent company.  This is just a contest between a receiver and manager appointed, not by a creditor, but by a small dissident minority shareholder who had contributed only $11,002 in capital, between that receiver and manager who then applied to have himself appointed as provisional liquidator and further applied to have himself appointed as liquidator a contest between that first‑named applicant who provided all of that capital, nearly $2 million in capital, $97 million in loans, between that person and the liquidator as to who should pay the creditors.  This was never an insolvent company.  This is a ‑ ‑ ‑

HIS HONOUR:   You keep saying that, but how is the High Court going to determine a question of that kind?

MR ROBSON:   Well, it determines it by saying firstly the Federal Court orders are all inferred.  That is clear on the basis of Re Macks, Residual Assco and Re Brown and so on.

The next proposition is: where does a liquidator go from there? We say he was never able to obtain judicial advice because there was no judgment for him to do so. If he can point to some right, let him do so. We say section 6 does not protect him, or if it does purport to do so then it is invalid, because section 6 in that form, its validity was not determined in Re Macks.  So that is an important factual consideration, your Honour.  It is not directed to the law but it is, in our submission, very important to bear in mind.  If it please your Honour.

HIS HONOUR:   Now, just before you sit down, what is the authority of this Court to grant an order in the nature of certiorari or an order of certiorari standing all on its own? I understand how certiorari is sometimes granted in order to perfect or make effective the decisions of the Court and the issue of the constitutional writs granted under section 75(v) of the Constitution; but those writs are only available against an officer of the Commonwealth. Justice Owen is a judge of a State Supreme Court; he is not an officer of the Commonwealth. He only becomes amenable to the process of this Court under the Judiciary Act if he is exercising federal jurisdiction but here, as I understand it, he is exercising purely State jurisdiction.  Now, what would be the power of this Court to issue a writ of certiorari to Justice Owen?

MR ROBSON:   We say that if he was exercising State jurisdiction, that he did not have any jurisdiction to exercise because these were infirm orders that he was acting upon, in effect.

HIS HONOUR:   That might be so, but that does not give us authority to issue a writ of certiorari to him.  The appropriate course to challenge that would be an appeal to the State Full Court.

MR ROBSON:   Re Macks itself is a case where only certiorari was granted and very many orders.  No other relief was granted.

HIS HONOUR: Yes, but not to a judge of a State Supreme Court. You see, the problem with Justice Owen so far as this Court is concerned is that our normal relationship with the judges of the Supreme Courts of the States is charted by the Constitution in section 72. It provides a particular relationship between the High Court and the Supreme Courts of the States, and that is not a relationship which you are invoking in this case. You are seeking a writ which traditionally has been available only to judges of inferior courts. Justice Owen is a judge of a superior court; moreover, a superior court of general jurisdiction, namely the Supreme Court of Western Australia. In his now capacity as a Royal Commissioner appointed under federal legislation, he is an officer of the Commonwealth, but in his then capacity, he is just a State Supreme Court judge vis-à-vis whom we are engaged by section 72 of the Constitution. What is the basis on which you seek any relief against him?

MR ROBSON:   That question was covered directly but not answered in the judgment – it is covered in the transcript in Re Macks.  Your Honour will remember that case went for some time and there were a wide‑ranging series of discussions.  A hypothetical proposition was put to some of the parties anyway:  what if there were orders made by a State Supreme Court judge?  How would the High Court then become engaged?  Your Honour, it is a lengthy argument.  I did not bring that transcript with me.  I have any number of other authorities and provisions brought here with me today.  Can I say that yes, I do see the point that it would be an unusual situation, but the transcript does reveal a basis for it in Re Macks.

HIS HONOUR:   Do you know a single case in a century of the High Court where it has issued certiorari to a State Supreme Court judge?  I do not.

MR ROBSON:   No, but it is a chicken and egg question.  If a Supreme Court judge is purporting to exercise federal jurisdiction, one imagines of course he would never ordinarily do so.  But if that is the effect of what this Jurisdiction Act allows his Honour to do, then of course we say we are in; we have something to attack.  So in other words, if his Honour was exercising federal jurisdiction – I know it is not answering the question, but that is what the real question is:  what jurisdiction was his Honour exercising?  We say he is exercising the jurisdiction that arose as a result of the orders made by Justice Nicholson in the Federal Court – his own jurisdiction in the Supreme Court.

However, having regard to the matters that have been argued before me today, I would not be inclined to dismiss the application for want of prosecution.  I take into account, in that regard, the fact that the second respondent did not itself move to secure dismissal of the proceedings for want of legal substance until the gross delays had become so apparent, in the circumstances that I have described, as to warrant the filing of the summons based principally on the non‑prosecution of the motion.

The delays I have recounted are obviously relevant to the disposal of the costs of the proceedings before me.  In my view, it was proper for the second respondent to bring its application.  The applicants must pay the costs of the proceedings before the Court.  I have already ordered that the costs of the proceedings on 3 September 2001 should be paid by them. 

The question of substance therefore becomes whether the matters decided by this Court in Spalvins and Re Macks render redundant the questions of constitutional law which, by their original motion, the applicants have sought to have removed into this Court.  On those questions I have heard detailed argument.  I have reached a firm conclusion.

Determination of the validity of post Wakim legislation

So far as the constitutional validity of ss 6, 7 and 8 of the Federal Courts (State Jurisdiction) Act 1999 (WA) is concerned, standing on their own, an analysis of the Court’s reasons in Re Macks indicates that a majority of this Court has expressed the view that those sections are, in substance, valid. Gleeson CJ did so at [26], [28] and [30], McHugh J at [88] and [132], Gummow J at [209] and [232], and Hayne and Callinan JJ at [351], [353] and [367]. My own opinion was that the provisions in question were invalid when measured against the requirements of the Constitution. However, in this I was in dissent. Accordingly, my reasons must be disregarded for considering the binding decision established by Re Macks and the reasonable arguability of the points which the applicants still wish to remove into a Full Court of this Court.

The position of s 10 (and to the extent that it also deals with appeals, s 7(2)) is more complex. Upon that question, so far as the validity of s 10 is concerned, Gleeson CJ expressly reserved the point at [29] of his reasons in Re Macks. Gaudron J at [67] indicated a view that the appeal provisions were invalid. It was my view that they were invalid. Hayne and Callinan JJ did not expressly determine the point. Counsel for the second respondent argued that the logic of the reasons of Hayne and Callinan JJ, and indeed of the Chief Justice and Gummow J, was favourable to the proposition that s 10 and the appeal provisions of the 1999 Act were constitutionally valid. That may eventually prove to be so. However, my analysis of the reasoning of the Justices in the majority does not bring me to the conclusion that that question has been determined. It did not need to be decided either in Spalvins or Re Macks.  The question whether the appeal provisions of the 1999 Act (and hence of its counterparts throughout Australia) are valid is obviously an important question.

Removal of a residual question about appeals

In my view, that question is also a live one in these proceedings.  The order which the applicants wish to impugn is an order of a judge of the Supreme Court of a State purporting to exercise the jurisdiction granted by the 1999 legislation.  The order in question was made by Owen J in the Supreme Court of Western Australia.  The applicants contend that, before they are forced into a position of seeking to appeal against that order they should have the opportunity of securing the determination of this Court on the constitutional validity of the appeal provisions of the legislation.  In my opinion, they are entitled to have the opportunity of the Court’s ruling on the matter.  At least this much could be said of Re Macks, it does not conclusively determine the question.  It is appropriate that it should be determined by this Court because of its national application and because it is, in a sense, the completion of the circle begun in Spalvins and Re Macks.

Upon this basis, I will order that that part of the cause in proceedings No FUL92 of 2000, pending in the Full Court of the Supreme Court of Western Australia which involves the following question: “Are s 10 and s 7(2) of the Federal Courts (State Jurisdiction)Act 1999 (WA) invalid?” be removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) on the ground that they arise under the Constitution and involve its interpretation.

The applicants must pay the respondents’ costs of these proceedings.  I certify for the attendance of counsel in chambers.

I now turn to matter No P46 of 2000.

In the substantive proceedings in matter No P46 of 2000 Robby Sumampow and Herman Gani (“the applicants”) seek a writ of certiorari directed by this Court to the Honourable Justice Neville Owen, a judge of the Supreme Court of Western Australia.  They also name Christmas Island Resort Pty Ltd and Mr Jeffrey Herbert (“the second and third respondents”) as respondents in the proceedings.  Mr Herbert is the receiver and manager and the provisional liquidator of the second respondent.  Justice Owen has submitted to the orders of this Court save as to costs.  The other respondents have appeared to contest the issue of the writ of certiorari.

A delayed application for a writ of certiorari

The proceedings which I am now considering are connected with those in matter No P53 of 2000 which I have just determined.  The same delays have attended the prosecution of the application for certiorari.  A like summons has been filed for an order dismissing the application for want of prosecution.  The same sorry story of inattention could be recorded.  However, I refrain from doing so because, as it seems to me, there are more fundamental difficulties in the way of the provision of the relief sought by the applicants.  The form of the order nisi presented to me for issue seeks no relief, save for the issue of the writ of certiorari.

The primary ground stated for that relief is that the order of Justice Owen, being the order described in my previous reasons:

treating Federal Court WG 3017 and 3031 of 1998 as proceedings in the Western Australian Supreme Court [is] invalid in that the Act they were made under, namely the Federal Courts (State Jurisdiction) Act 1999 (WA), offends the integrity of the State judicial system that is guaranteed by Chapter III of the Commonwealth of Australia Constitution Act 1901.

There are other grounds stated, but they are supplementary to the one I have just set out.

Inadmissibility of the application

It will be observed that the relief sought is stated in terms of absolute generality.  That relief would not be granted, consistent with the decision of this Court in Re Macks; Ex parte Saint (2000) 75 ALJR 203; 176 ALR 545. The analysis of the decisions of this Court in that case, set out in my reasons in P53 of 2000, indicate that, in Re Macks, a clear majority of this Court has rejected the proposition that the 1999 legislation was invalid, either generally or on the ground propounded.  I am not, therefore, persuaded to return before a Full Court, as reasonably arguable, the draft order nisi as presented to me.

There are, in any case, other and substantial difficulties in the way of the arguability of the relief claimed. Justice Owen is not an officer of the Commonwealth. He is a judge of a Supreme Court of a State. That Court is a court of general jurisdiction and a superior court. Ordinarily the writ of certiorari is not available to a judge of a Supreme Court of general jurisdiction, being a superior court, unless, exceptionally, that judge is an officer of the Commonwealth amenable to a constitutional writ under s 75(v) of the Constitution.

Under that exceptional constitutional provision, judges of Federal Courts in Australia are amenable to the constitutional and other writs which would otherwise ordinarily be confined, relevantly, to inferior courts and tribunals.  Certiorari is sometimes granted by this Court in the exercise of its constitutional jurisdiction in relation to such judges as officers of the Commonwealth.  That form of relief is not, however, available to the applicants against Justice Owen.  Nor was it contended by any party that the second or third respondents named in the draft order nisi, or either of them, is or was an officer of the Commonwealth.

The only possible foundation for the grant by this Court of an order nisi for certiorari directed to the named respondents, or at least to the second and third respondents, would be the invocation of this Court’s original jurisdiction under s 76(i) of the Constitution together with the original jurisdiction conferred upon the Court by the Judiciary Act 1903 (Cth) ss 30(a), 31 and 33(2). For the reasons which I have already indicated, it is unnecessary to consider the availability of certiorari on these grounds because, in my view, the basis of the grant is not reasonably arguable in the terms of the draft propounded by the applicants.

Orders

Accordingly, the application for a writ of certiorari in the form of the document filed by the applicants is dismissed on its merits.  It is not, therefore, necessary for me to determine the summons for dismissal of the application for want of prosecution.  The applicants must pay the contesting respondents’ costs of the application.  I certify for the attendance of counsel in chambers.

The Court will now adjourn.

AT 4.17 PM THE MATTER WAS CONCLUDED