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Dimitrov v Supreme Court (Vic)

Dimitrov v Supreme Court (Vic)

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HIGH COURT OF AUSTRALIA
EDELMAN J
PETER MICHAEL DIMITROV PLAINTIFF
AND
THE SUPREME COURT OF VICTORIA & ORS DEFENDANTS
Dimitrov v The Supreme Court of Victoria
[2017] HCA 51
1 December 2017
S204/2017
ORDER
1.The plaintiff's application for an order to show cause, filed 2 August 2017, be dismissed, pursuant to r 25.03.3(a) of the High Court Rules 2004 (Cth).
2.The plaintiff pay the costs of the third, fourth, ninth, tenth, 13th, 14th, 15th and 17th defendants.

Representation
R E Dubler SC with Q A Rares for the plaintiff (instructed by Sasha Ivantsoff, Solicitor)
A C Archibald QC with F I Gordon for the third, fourth, ninth and tenth defendants (instructed by Allens Lawyers)
G K J Rich SC with B K Lim for the thirteenth to fifteenth defendants (instructed by Arnold Bloch Leibler)
T W Marskell for the seventeenth defendant (instructed by Moray & Agnew)
Submitting appearances for the first, second, eleventh, twelfth and sixteenth defendants
No appearance for the fifth to eighth defendants
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

EDELMAN J.
Introduction

The plaintiff, Mr Dimitrov, brought an application for an injunction and constitutional writs, including an extension of time of approximately two years for the writ of certiorari, in the original jurisdiction of this Court. The application was filed on the eve of a hearing of related issues, more than two and a half years after the events upon which the application is based. It raises issues that were not raised before the primary judge. And the application was filed without seeking leave to appeal to the Court of Appeal of the Supreme Court of Victoria from the orders which the plaintiff seeks to quash.
Various defendants have applied for the dismissal or summary dismissal of the application to show cause. One basis upon which dismissal is sought by a number of the defendants is that the novel constitutional propositions raised by the application have no prospects of success. It is unnecessary to decide this point. The application should be dismissed because it is not appropriate for it to be determined by this Court. The proper course in the circumstances of this application is for the plaintiff to attempt to agitate these issues in the lower courts rather than raising them for the first time in this Court. Some of the issues that the plaintiff now seeks to raise, involving construction of a deed, are pending in the District Court of New South Wales. Other more novel issues could have been raised before the primary judge but were not. And they could be the subject, with leave, of an appeal to the Court of Appeal of the Supreme Court of Victoria. Indeed, if that route were taken, and if leave to appeal were granted, then other novel constitutional issues, and barriers to the relief sought by the plaintiff that would require long established decisions of this Court to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] HCA 51
Decision Date: 1 December 2017

CaseChat Overview and Summary

The plaintiff, a group member in Supreme Court of Victoria proceedings concerning managed investment schemes, sought constitutional writs of prohibition, certiorari, and injunction against orders made by Croft J approving a settlement deed. Various defendants, including the "BEN parties" and former directors of companies within the Great Southern group, applied for dismissal or summary dismissal of the plaintiff's application. The High Court of Australia was asked to consider whether it had the power to entertain the application and whether it was appropriate to invoke its original jurisdiction.

The central legal issues before the court were whether the plaintiff's application for constitutional writs was appropriate given the existence of a right to appeal the impugned orders, and whether a judge of the Supreme Court of Victoria, when exercising federal jurisdiction, could be considered an "officer of the Commonwealth" for the purposes of section 75(v) of the Constitution and section 33(1)(c) of the Judiciary Act 1903 (Cth). The court also considered the plaintiff's contention that the orders made in federal jurisdiction were beyond power as they did not involve a "matter" as defined by the Constitution.

Edelman J dismissed the plaintiff's application, applying the long-standing principle that a litigant must generally exhaust statutory rights of appeal before the High Court will entertain an application for constitutional writs. His Honour noted that it is usually inappropriate to invoke the original jurisdiction of the High Court where the decision under challenge is amenable to appeal, even if leave to appeal is required. While acknowledging that exceptions exist, such as where a clear want or excess of jurisdiction is demonstrated or a constitutional issue requires immediate hearing, Edelman J found that no such circumstances applied in this case. The court also observed that a writ of certiorari to quash the orders of Croft J would be essential to the relief sought, but that orders on appeal, with leave, could achieve the same practical effect.

The plaintiff's application for an order to show cause was dismissed pursuant to rule 25.03.3(a) of the High Court Rules 2004 (Cth). The plaintiff was also ordered to pay the costs of specific defendants.

Orders

Orders of the court

1. The plaintiff's application for an order to show cause, filed 2 August 2017, be dismissed, pursuant to r 25.03.3(a) of the High Court Rules 2004 (Cth).

2. The plaintiff pay the costs of the third, fourth, ninth, tenth, 13th, 14th, 15th and 17th defendants.

Background

Background to the litigation

There are also basic difficulties with the plaintiff's application. Many necessary and proper parties have not been joined. The plaintiff made a considered decision not to join those parties, asserting, incorrectly, that the orders he seeks do not affect the rights of those parties or that those parties could only benefit from his application. Background The plaintiff was a group member of proceedings commenced in 2010 in the Supreme Court of Victoria pursuant to Pt 4A of the Supreme Court Act 1986 (Vic). The group action concerned various managed investment schemes. The principal claim was that product disclosure statements were in contravention of Pt 7.9 of the Corporations Act 2001 (Cth)[1]. [1]Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (In liquidation) [2014] VSC 516 at [88]. On 2 March 2012, an opt out notice was issued which stated that the lead plaintiffs in the group proceedings alleged that "they and Group Members suffered financial loss because the Responsible Entity, Great Southern Managers Australia Limited (GSMAL) and/or Great Southern Finance Pty Ltd ... among other things, made false, misleading and/or deceptive representations to them and to Group Members, in relation to the Great Southern managed investment schemes". The opt out notice provided as follows:"What happens if you do not OPT OUTIf you are a Group Member and do not give notice to opt out by 4.00pm on 27 April 2012, you will be taken to have not opted out. Accordingly, under Australian law, you will be bound by the outcome of the Great Southern Group Proceeding(s) which affects you and any settlement, judgment or determination made in it. If the Great Southern Group Proceeding(s) is unsuccessful, you will not be able to make claims in other proceedings in relation to the matters the subject of the Great Southern Group Proceedings." After receiving advice from his solicitors, the plaintiff chose not to opt out of the proceedings. The plaintiff says that one reason why he chose not to opt out was that his solicitors did not explain to him that he may not be permitted to rely on defences or cross-claims that might otherwise have been available to him if the proceedings failed. The proceedings were tried by Croft J over the course of almost a year, between 29 October 2012 and 24 October 2013[2]. Prior to judgment being delivered, the proceedings settled[3]. An application was made to Croft J to approve a deed of settlement executed by the parties on 23 July 2014 ("the Settlement Deed")[4]. The Settlement Deed, by cl 2.1, was conditional upon approval by the Supreme Court of Victoria under s 33ZF of the Supreme Court Act. It contained terms including the following: "4.1.4The Lead Plaintiffs for and on behalf of themselves and all Group Members acknowledge and admit the validity and enforceability of the Lead Plaintiffs' Loan Deeds and the Group Members' Loan Deeds....4.1.6 Each of the Lead Plaintiffs acknowledges and admits their liability to the BEN Parties to pay the Loan Balance under their Loan Deed....4.1.10The Lead Plaintiffs for and on behalf of themselves and on behalf of all Group Members release the BEN Parties and their Related Entities and Javelin and its Related Entities from all Claims....4.1.13Each of the BEN Parties and their Related Entities and Javelin and its Related Entities may plead this Deed as a bar or defence to any claim or action (including a claim for costs) brought by any of the Lead Plaintiffs, the Group Members or the M+K Counterclaim Claimants relating to a Claim."[2]Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (In liquidation) [2014] VSC 516 at [2].[3]Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (In liquidation) [2014] VSC 516 at [2].[4]Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (In liquidation) [2014] VSC 516 at [7].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

EDELMAN J

Four of the parties who seek that the application for an order to show cause be dismissed are the third, fourth, ninth, and tenth defendants[7]. They are collectively described as the "BEN parties". Another three parties who separately seek dismissal of the application are the 13th, 14th, and 15th defendants. They are former directors of companies within the Great Southern group, who are collectively described as the "Executive Directors". Finally, dismissal of the application is also sought by the 17th defendant, a former non-executive director. [7]Bendigo and Adelaide Bank Ltd ("BABL"), ABL Nominees Pty Ltd, ABL Custodian Services Pty Ltd, and Pirie Street Holdings Ltd.The plaintiff's failure to appeal from the decision of Croft J There is a long standing principle[8], reiterated recently by Nettle J, that "[g]enerally speaking, a litigant must exhaust its statutory rights of appeal before this Court will contemplate an application for mandamus or prohibition [or certiorari] directed to achieving a result that in substance may be obtained on appeal"[9]. It is usually inappropriate for the original jurisdiction of this Court to be invoked where the decision under challenge is a decision which is amenable to appeal, whether or not that appeal is subject to leave[10]. Although there are strong reasons for this principle, it is not absolute, as Nettle J recognised. For instance, exceptionally, the application might be entertained where a want or excess of jurisdiction by a federal judge is "clearly shown"[11], or where a constitutional issue should be heard immediately by the Court, such as where prohibition is sought to prohibit the exercise of a jurisdiction which it is asserted that federal judges do not have[12]. No such circumstance applies in this case. There may be doubt about whether a writ of prohibition or an injunction could restrain the relevant parties – including Croft J, who has performed all his duties – from "proceeding on" the orders of Croft J. But, whether or not there is any exception where it is apprehended that a tribunal might commit further acts in excess of its jurisdiction[13], until binding orders, particularly those of a superior court, are quashed a writ of prohibition could not issue to prohibit, and a permanent injunction could not restrain, persons from performing their duties and acting upon the orders[14]. A writ of certiorari to quash the orders of Croft J is therefore essential to the relief sought by the plaintiff. But orders could be made on an appeal, with leave, that would have the same practical effect as a writ of certiorari. [8]Hawes, The Law Relating to the Subject of Jurisdiction of Courts, (1886) at 316-317.[9]Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1 at 8 [22]; 338 ALR 360 at 367; [2016] HCA 41.[10]Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1 at 8 [22]; 338 ALR 360 at 367.[11]R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194 per Gibbs CJ; [1984] HCA 82. [12]TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533; [2013] HCA 5.[13]R v Hibble; Ex parte Broken Hill Proprietary Co Ltd (1920) 28 CLR 456; [1920] HCA 83. [14]Re Keely; Ex parte Kingham (1995) 129 ALR 255 at 280; Re Ruddock; Ex parte Reyes (2000) 75 ALJR 465 at 468 [23]-[24]; 177 ALR 484 at 488; [2000] HCA 66; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants M31/2004 [2004] HCATrans 318 at lines 393-405; Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 at lines 999-1017. See also New South Wales v Kable (2013) 252 CLR 118 at 133 [32]; [2013] HCA 26.

Ratio Decidendi

Legal Principle Established

Established by: EDELMAN J

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