Henke, Ex parte - Re O'Loughlin & Ors

[2002] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M112 of 2001

In the matter of -

An application for a Writ of Mandamus and Prohibition against THE HONOURABLE MAURICE FRANCIS O’LOUGHLIN, A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

First Respondent

FINLAYSONS (A FIRM), BRUCE JAMES CARTER AND MARTIN DAVID LEWIS

Second Respondents

Ex parte –

IAN SIDNEY HENKE

Applicant/Prosecutor

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 3 APRIL 2002, AT 9.31 AM

(Continued from 26/3/02)

Copyright in the High Court of Australia

MR D.C. FITZGIBBON:   May it please the Court, I appear, your Honour, on behalf of the prosecutor.  (instructed by Noel Waters Pty Ltd)

HER HONOUR:   There is no appearance – I think the Court has been informed that the first and second respondents will not be appearing in this matter.  Now, I have received this affidavit but I have only, in the last half hour or so, received the annexures to it.

MR FITZGIBBON:   Yes.

HER HONOUR:   So, you should proceed on the basis that I do not really understand how you say that there has been jurisdictional error on the part of the Federal Court.

MR FITZGIBBON:   Thank you, your Honour.  Your Honour, might I extend a short submission which I have prepared.

HER HONOUR:   Yes, thank you.

MR FITZGIBBON:   That certainly may assist.

HER HONOUR:   Of 2 April, yes.  But I do not understand what those grounds are, you see.  That is not the way matters are usually done in this Court.  The grounds usually have to be incorporated in the draft writ.  Now, you see, the relief you seek is relief which is only available for jurisdictional error.  Do you accept that?

MR FITZGIBBON:   Yes, I accept that.  What I say further to that is that there is a denial of natural justice.

HER HONOUR:   Yes.  How do you say that?  To whom?

MR FITZGIBBON:   I say it, your Honour, for the reasons which I have tried to follow through.

HER HONOUR:   But again – you see, the difficulty, Mr Fitzgibbon, is this:  the proceedings below are between a company in liquidation and another company called ‑ ‑ ‑

MR FITZGIBBON:   ‑ ‑ ‑ ITRA.

HER HONOUR:   ‑ ‑ ‑ ITRA.  But ITRA is not the prosecutor.

MR FITZGIBBON:   No, but Mr Henke is the managing director.

HER HONOUR:   Well, that does not seem to me to matter a wit.  Mr Henke was not a party to the proceedings below and natural justice is a requirement that relates to parties.

MR FITZGIBBON:   Yes.  He is, your Honour, the subject of orders.

HER HONOUR:   Where are they?

MR FITZGIBBON:   They are contained, your Honour, in the documents which have been filed this morning.  There are a series of orders ‑ ‑ ‑

HER HONOUR:   Is that Annexure G?

MR FITZGIBBON:   Your Honour, I do not believe it is specifically annexed as such.  Your Honour, it might be of assistance – I do not have my solicitor here, and if Mr Henke could sit somewhere reasonably close, if I might seek that.

HER HONOUR:   Yes, very well.

MR FITZGIBBON:   It is mentioned, your Honour, in Annexure G.

HER HONOUR:   You will have to show me precisely where it is in Annexure G that Mr Henke has been made the subject of orders.

MR FITZGIBBON:   The final page of Annexure G, your Honour.

HER HONOUR:   You are talking about paragraph (c)?

MR FITZGIBBON:   Yes.

HER HONOUR:   Well, there is no order there.  It is a question reserved for further consideration.  Now, presumably ‑ ‑ ‑

MR FITZGIBBON:   Your Honour, the order of Justice O’Loughlin on 12 November ‑ ‑ ‑

HER HONOUR:   I do not know that I have that.

MR FITZGIBBON:   It is in volume 1, your Honour.

HER HONOUR:   Volume 1.  What is volume 1?

MR FITZGIBBON:   Volume 1 are all the documents – we have sought to place all the documents before the Court.

HER HONOUR:   They are not referred to in any affidavit, are they?  This is not the way these things are usually done, Mr Fitzgibbon.

MR FITZGIBBON:   No, your Honour.  I can direct your Honour to that.

HER HONOUR:   Well, do you tender these documents?

MR FITZGIBBON:   I do tender them, thank you.

HER HONOUR:   The three volumes are marked exhibit A.

EXHIBIT:              Exhibit A…..Three volumes of material

HER HONOUR:   Now, you want me to turn to volume 1?

MR FITZGIBBON:   Volume 1, and if your Honour’s associate would allow me access to the file, I can very quickly direct your Honour to where it is rather than – thank you.  If your Honour looks at the face page of that order, Mr Henke ‑ ‑ ‑

HER HONOUR:   All right.  Well, that is not going to show me – that, of itself – so he has been punished for contempt.  Very well.  Well, that does not show to me that he has been denied natural justice and it does not show to me that the orders you presently seek – you see, if there is a point in this, you have certainly done your very best to bury it.  The orders you seek:  9 November – I am looking at the draft order filed on 16 November 2001.  Now, the only order then you show me which is binding Mr Henke is order of 12 November, is that right?

MR FITZGIBBON:   No, that is not correct, your Honour.  He is also bound by other orders:  the original order, your Honour, of 9 November.

HER HONOUR:   Where do I find that?

MR FITZGIBBON:   That, your Honour, should be  ‑ ‑ ‑

HER HONOUR:   I have an order of 9 November.

MR FITZGIBBON:   If your Honour looks at page 2 of the order of – once again, it has exhibit G on it but I think that relates to a lower court proceedings.  On page 2 it shows “48 Lyall Street, Hastings, in the State of Victoria”, and that is, in fact, the home of Mr Henke.  Now, your Honour, the order of 16 November – I am sorry, your Honour, these documents had to be flown up from Melbourne this morning, and you will forgive me, I am ‑ ‑ ‑

HER HONOUR:   No, I will not.  I will not, because I have never in 15 years on this Court seen an application that is so undirected.  Ordinarily, one makes an application for a prerogative writ, one files the affidavits and one sets out the orders, one sets out the grounds relating to the orders that are under challenge and one annexes an affidavit setting out all the matters relied on.  One does not throw a whole operation like this before the Court half an hour before the matter is listed.  So, I will not forgive you.

MR FITZGIBBON:   I am sorry.  Thank you.  I still seek your Honour’s indulgence to present ‑ ‑ ‑

HER HONOUR:   Well, you have my presence and you have my attention.

MR FITZGIBBON:   Thank you.  If I can direct your Honour to the orders of 16 November and they are both said to be against ‑ ‑ ‑

HER HONOUR:   Wait a moment.  I have not got orders of 16 November.  I have a supervising – where do I find these?  In book 2, do I?  No.

MR FITZGIBBON:   Your Honour should have in that principal first file an order ‑ ‑ ‑

HER HONOUR:   I have a supervising solicitor’s report which has a tag on it saying “16 November”.  I have an order dated 14 November from Justice O’Loughlin.  I have a document dated the 13th which is a statement of charge which is also addressed to Ian Sidney Henke which seems to me to indicate that at least somebody was thinking that he had to be notified of the charge, although I take it that you say he was not notified of the charge?

MR FITZGIBBON:   Yes.

HER HONOUR:   Do you?

MR FITZGIBBON:   Your Honour, I do have a copy of the orders made on 16 November but they are, date of entry, 19 November.  They concern, of course, directly Mr Henke as well as the company.

HER HONOUR:   Okay, so there is an order but – all right.  What do you say has happened or is happening that involves jurisdictional error on the part of the Federal Court?

MR FITZGIBBON:   Your Honour, if I can move to the submission, I say on page 2 of my submissions that that the Corporations Act 2001 is, in fact, a Code and it sets out, of course, the powers, duties and rights attached to a liquidator and I then deal with each of the matters where I say the Federal Court is, in fact ‑ ‑ ‑

HER HONOUR:   Well, no, just tell me what – you seek prohibition?

MR FITZGIBBON:   Yes.

HER HONOUR:   Okay, and you seek prohibition against Justice O’Loughlin?

MR FITZGIBBON:   Yes.

HER HONOUR:   What do you seek to prohibit him from doing?  We need to know that to start with.

MR FITZGIBBON:   Yes, thank you.  I seek prohibition on the basis ‑ ‑ ‑

HER HONOUR:   No, no, what do you seek to prohibit him from doing?

MR FITZGIBBON:   I seek to prohibit him from any further exercise related to the orders made ‑ ‑ ‑

HER HONOUR:   Well, from acting on what orders?

MR FITZGIBBON:   The orders, your Honour, that go back to the ‑ ‑ ‑

HER HONOUR:   Now, you will have to tell me precisely.  This is not a royal commission, Mr Fitzgibbon.  This is an application for a writ of prohibition.

MR FITZGIBBON:   Yes.  I seek prohibition, your Honour, on the orders of 2 November 2001, the orders of 9 November 2001, the further orders of the court on 12 November 2001, 14 November ‑ ‑ ‑

HER HONOUR:   2001?

MR FITZGIBBON:   Yes, thank you; 16 November ‑ ‑ ‑

HER HONOUR:   Well now, let me just raise with you another matter.  Have you looked at the Rules of this Court?  If I am not wrong, we are already in the year 2002.  More than 12 months have passed since each of those orders was made that you have referred to.

MR FITZGIBBON:   No, no, your Honour, no, these are ‑ ‑ ‑

HER HONOUR:   Last year, I am sorry.

MR FITZGIBBON:   They are last November, your Honour.

HER HONOUR:   Okay, sorry, thank you.  All right, 14 November 2001?

MR FITZGIBBON:   Yes, and 16 November 2001, and then the very recent orders of 27 March 2002.

HER HONOUR:   All right.  Now, I want you to go to each of those orders and show me where an order is made against the prosecutor.

MR FITZGIBBON:   Thank you, your Honour.

HER HONOUR:   Now, bear in mind that you have given me this bundle of documents in a most disordered manner.  Let me just check that ‑ ‑ ‑

MR FITZGIBBON:   Your Honour, the order of 2 November, I cannot directly, your Honour, point to Mr Henke in that other than the third clause which is an order against ‑ ‑ ‑

HER HONOUR:   Third clause, yes.  That is an order against the company which is not a party to these proceedings.

MR FITZGIBBON:   No, that is correct, your Honour, yes.

HER HONOUR:   What you have there is an interlocutory order.

MR FITZGIBBON:   Yes.

HER HONOUR:   An ex parte interlocutory order?

MR FITZGIBBON:   Yes, it was, your Honour.

HER HONOUR:   Okay.  I do not see how you can complain about that in terms of denial of natural justice.  That is the ground on which you move, is it, in relation to all of these orders?

MR FITZGIBBON:   It is certainly foundational to everything that followed.

HER HONOUR:   What is foundational to everything that ‑ ‑ ‑

MR FITZGIBBON:   Well, it is the initial order which is taken out that commences the sequence.

HER HONOUR:   Now, can you just tell me something – like this:  order ceased “to have effect at 4.30 pm on 9 November”?

MR FITZGIBBON:   Yes, they were in fact – and that ‑ ‑ ‑

HER HONOUR:   And there is liberty to apply.  Order 5:  “liberty to apply.”

MR FITZGIBBON:   No, there is liberty to apply but ‑ ‑ ‑

HER HONOUR:   What I want to know is, did anybody apply?  Did anybody appear in court on behalf of the Institute of Taxation Research Australia Pty Limited?

MR FITZGIBBON:   No, your Honour.

HER HONOUR:   But it was served?

MR FITZGIBBON:   Yes, your Honour, in the ‑ ‑ ‑

HER HONOUR:   It was served by sticking it on the front door.

MR FITZGIBBON:   Sticking it on the front door of the wrong office.

HER HONOUR:   Okay.  You do not say it did not come to your notice though?

MR FITZGIBBON:   No, I cannot say that, your Honour.  My instructions are, your Honour, that in fact it was stuck on the next door office ‑ they are similar looking blocks – attached by tape, apparently some time on the Saturday.  It was not discovered, according to my instructions, until the following Tuesday.

HER HONOUR:   Well, what day was that?

MR FITZGIBBON:   That would have been the 6th, your Honour.

HER HONOUR:   Very well.  Now, was any action then taken in those proceedings by the Institute of Taxation Research Australia Pty Limited?

MR FITZGIBBON:   The answer is, no, your Honour.  There are two reasons for that.

HER HONOUR:   I do not want the reasons.  You have come here asserting denial of natural justice.  You tell me that the document was discovered on the following Tuesday, or the order.  Now, I presume, before this, had you been served with some initiating process?

MR FITZGIBBON:   There was another matter, your Honour, already in the Federal Court and that was a matter under 596A and 596D.  Now, that had been ‑ ‑ ‑

HER HONOUR:   Well, that means nothing to me.

MR FITZGIBBON:   That, your Honour, was the subject of an action and has been heard by Justice Gray and now is the subject – in effect, your Honour, in short, they sought under the provisions 596A and 597, which is automatically brought in as a result of that, to have what I will call “secret hearings”.  So, that was already before the court and, indeed, as I say, it was a matter of a judgment of that court and that set aside the secret hearing part of it.  His Honour Justice Gray was not satisfied.

HER HONOUR:   Well, you tell me that nothing was done by the Institute of Taxation Research to apply with respect to that order to seek to set it aside or to seek to appeal it?  Do you tell me that?

MR FITZGIBBON:   Yes, it is.

HER HONOUR:   All right.  Now, on what basis then do you assert a denial of natural justice in relation to the order of 2 November 2001?

MR FITZGIBBON:   Now, your Honour, I have been slightly inaccurate on that because the very order of 2 November itself ‑ your Honour, as I understand my instructions, the matter was extended, apparently, by the applicant company until the ‑ ‑ ‑

HER HONOUR:   The order was extended by the judge – by a judge.

MR FITZGIBBON:   Yes, to 9 November.

HER HONOUR:   To 9 November?

MR FITZGIBBON:   Yes.

HER HONOUR:   Well, no, “the order shall cease to have effect on 9 November”, so it says.

MR FITZGIBBON:   Yes.

HER HONOUR:   Okay.  So, when was it extended?

MR FITZGIBBON:   On the 9th, your Honour.

HER HONOUR:   Yes, and you knew the matter – there was liberty to apply.  It says so in paragraph 5.

MR FITZGIBBON:   Yes, I accept that, your Honour.  The next matter, your Honour – I think it is important because it dovetails into ‑ ‑ ‑

HER HONOUR:   Well now, do you seek prohibition in any respect for the order of 2 November?  I just cannot get an answer from you, Mr Fitzgibbon.

MR FITZGIBBON:   Yes, I do.

HER HONOUR:   You do.  On what basis do you seek prohibition with respect to 2 November?

MR FITZGIBBON:   Your Honour, I seek it on the basis that ‑ as your Honour has heard, apparently the notice was affixed to the wrong office ‑ the offices of the company ‑ ‑ ‑

HER HONOUR:   Very well, I understand that, but you took no step, notwithstanding that the matter came to your notice, to appeal the order, to appear in court, to seek liberty to apply?  You told me that.  It was decided, I take it, to ignore it?

MR FITZGIBBON:   No, I do not believe that to be correct to this effect, that ‑ ‑ ‑

HER HONOUR:   You tell me that Justice Nicholson had no jurisdiction to make an ex parte interlocutory injunction or that there was jurisdictional error involved in his making an ex parte interlocutory injunction?

MR FITZGIBBON:   Yes, I do say that, your Honour, and I ‑ ‑ ‑

HER HONOUR:   And what do you say it is?

MR FITZGIBBON:   ‑ ‑ ‑ say it on the basis of section 598(2) of the Corporations Act.

HER HONOUR:   Well, what does that say?  A judge has no jurisdiction to grant ‑ ‑ ‑?

MR FITZGIBBON:   No, there are very definite preconditions, as I put in my submission to the Court ‑ ‑ ‑

HER HONOUR:   So, 598(2) – well, it is not an order under 598(2).

MR FITZGIBBON:   No.

HER HONOUR:   This is an ex parte interim injunction under the Court’s equitable power.

MR FITZGIBBON:   That may be true, your Honour, but the difficulty is this ‑ ‑ ‑

HER HONOUR:   No.  Mr Fitzgibbon, the difficulty is this:  you have to establish jurisdictional error.  You not only have to establish – you have not sent one document that even attempts to relate the notion of jurisdictional error to any of these orders and you have to establish not only jurisdictional error but that I ought exercise my discretion in circumstances in which other steps could have been taken and you have not taken them.  Again, not one document directed to those issues.

MR FITZGIBBON:   Yes. Your Honour, the position that the applicant takes is this, that there has been no compliance with what I say are the mandatory provisions under 598 which, indeed, bring in section 533 of the Corporations Act.

HER HONOUR:   Now, that does not seem to me to involve your client, Mr Henke, one jot.  If that be the case, that is a matter that the Institute of Taxation Research Australia Pty Limited could have raised in the proceedings in the Federal Court and they do not seem to me to involve Mr Henke one bit.

MR FITZGIBBON:   If your Honour will hear me, I think you will see that.  The orders of 9 November – remember, there was an extension ‑ ‑ ‑

HER HONOUR:   We will go to 9 November.

MR FITZGIBBON:   If I might take your Honour to 9 November and ‑ ‑ ‑

HER HONOUR:   Now, this is an order to the Institute of Taxation Research Australia.  I am sorry, it is not.  It is not an order to them.  This is judicial authority for an Anton Piller order.  This is an Anton Piller order.

MR FITZGIBBON:   Yes.  That is the difficulty that ‑ ‑ ‑

HER HONOUR:   And, again, it is an ex parte ‑ ‑ ‑

MR FITZGIBBON:   Yes.

HER HONOUR:   And it is subject to undertakings as to damages.

MR FITZGIBBON:   Yes.

HER HONOUR:   Now, do you say the Federal Court has not jurisdiction to make an Anton Piller order?

MR FITZGIBBON:   I say that.

HER HONOUR:   Why?

MR FITZGIBBON:   In order to make such an order, there are ‑ ‑ ‑

HER HONOUR:   Are you familiar with the case of Jackson v Sterling Industries, I trust?

MR FITZGIBBON:   Yes.  Yes, I am aware of that, your Honour.  The corporation, your Honour, had ceased, in fact, working out of that particular office ‑ ‑ ‑

HER HONOUR:   Which corporation had ceased?

MR FITZGIBBON:   That is ITRA.

HER HONOUR:   It was no longer ‑ ‑ ‑?

MR FITZGIBBON:   It was no longer.  It had not been since October 2001.

HER HONOUR:   Okay.  That does not seem to me to be particularly pertinent.

MR FITZGIBBON:   Then there is an Anton Piller made against the company and the premises.

HER HONOUR:   And the injunction is “extended until 4.30 pm on 16 November 2001”.

MR FITZGIBBON:   Yes.

HER HONOUR:   And “Liberty to apply on urgent short notice”.

MR FITZGIBBON:   Yes.

HER HONOUR:   Did the company, ITRA, apply?

MR FITZGIBBON:   The document was not served, your Honour.

HER HONOUR:   At any time?

MR FITZGIBBON:   Yes.  When ‑ ‑ ‑

HER HONOUR:   I seem to have read an affidavit that Mr Henke refused to accept the document.

MR FITZGIBBON:   Yes, your Honour, that, in fact, is part of the report by the supervising solicitor.

HER HONOUR:   All right.  Now, was any action taken in the Federal Court in respect of that complaint by ITRA or by Mr Henke or by the solicitor?

MR FITZGIBBON:   No, the answer must be no.

HER HONOUR:   Notwithstanding that they knew that people had presented them – well, at least Mr Henke knew that somebody had presented himself or herself and was at the premises and was informed by a supervising solicitor as to what was going on, no step was taken?

MR FITZGIBBON:   Yes.

HER HONOUR:   Very well.

MR FITZGIBBON:   That is all before your Honour.

HER HONOUR:   Yes, I understand that.

MR FITZGIBBON:   I do not cavil with it.

HER HONOUR:   All right.  What is the basis on which you say you challenge that order?

MR FITZGIBBON:   Your Honour, what I challenge, first of all, if I can go back to the Anton Piller order, and bearing in mind, of course, the authority of the Court on that matter, I say that a special duty of disclosure arises on ex parte applications, and as Professor Spry says ‑ ‑ ‑

HER HONOUR:   I am not interested in – they are matters you can raise in the Federal Court.  You could have raised; you could still raise.  I am interested in jurisdictional error.

MR FITZGIBBON:   Yes.

HER HONOUR:   Which is the only basis on which you could get prohibition.

MR FITZGIBBON:   Yes.  I have sought, your Honour, wider than that.  I do not believe that ‑ ‑ ‑

HER HONOUR:   Well, the order that you tell me that you are seeking filed in this Court on 16 November, which I thought you told me last time – you seek “a writ of prohibition and a writ of mandamus directed to the first respondent to quash the decisions”.  I think what you really mean is certiorari.  Mandamus does not issue to quash.

MR FITZGIBBON:   Yes, that is right.  I believe it is a case, really, of certiorari and prohibition.

HER HONOUR:   And certiorari is only an ancillary remedy to prohobition.

MR FITZGIBBON:   Yes, I accept that.

HER HONOUR:   Very well, and prohibition is only issued for jurisdictional error.

MR FITZGIBBON:   Yes.

HER HONOUR:   Good.  We seem, at least, to have common ground on that.  What is the jurisdictional error you usurp with respect of the Anton Piller order?

MR FITZGIBBON:   Your Honour, I make the first submission in relation to that, in relation to the Corporations Act but I have heard your Honour, nevertheless, I believe I should because of the nature of that Act and the way that it, I will say, circumscribes the duties of liquidators and their powers and their duties – and your Honour would be aware of that.  I do not believe I need to take your Honour to that.

HER HONOUR:   Yes, but what do you say circumscribes Justice O’Loughlin’s jurisdiction to grant an Anton Piller order in an action between two companies, one of which is asserting that the other is passing off?  And there was an assertion of passing off in the statement of claim, was there not?

MR FITZGIBBON:   Yes.  In the actual statement of claim there is quite a – well, it is not only passing off, it goes into the area of profits; it goes to the area of – and that is why I have raised illegality as such as a very definite proposition, so ‑ ‑ ‑

HER HONOUR:   But you say illegality on the part of the liquidator.

MR FITZGIBBON:   Yes.

HER HONOUR:   That is neither here nor there in terms of the proceedings you have brought in this Court.  It is a matter about which you could have and perhaps still can complain in the Federal Court, but because you seek prohibition you have to establish an arguable case that Justice O’Loughlin had no jurisdiction to make such an order.

MR FITZGIBBON:   Yes, thank you.

HER HONOUR:   And that you do not show by saying a liquidator abused his powers, or the like.

MR FITZGIBBON:   Yes.  Nevertheless, your Honour, there is the linking factor here – and I do not want to appear argumentative on the matter but there is the linking factor of where the power arises to make orders.

HER HONOUR:   Well, you have to tell me why you say there was no power in the Federal Court to make an order, an Anton Piller order, in an action in which, amongst other things, a claim was made for passing off.

MR FITZGIBBON:   If your Honour will look at section 598 of the Corporations Act, in order to make orders – subsection (1) was deleted, of course, in 1999.  But the court’s powers are, I say, circumscribed on the basis of two matters:  whether the liquidator was an eligible applicant as such in the light of ‑ ‑ ‑

HER HONOUR:   It is not an order under 598.

MR FITZGIBBON:   No.

HER HONOUR:   It is an order in a passing off action.

MR FITZGIBBON:   With respect, it is an order that goes just beyond passing off.  If your Honour looks at the ‑ ‑ ‑

HER HONOUR:   It is an Anton Piller order made to preserve the effective exercise of the court’s jurisdiction.

MR FITZGIBBON:   That, your Honour, is true except to this extent, that if your Honour looks at the writ that was filed, and that is, in fact, exhibit A to my client’s affidavit, your Honour.

HER HONOUR:   Of which affidavit?

MR FITZGIBBON:   Of the affidavit sworn yesterday and filed this morning.

HER HONOUR:   Exhibit A, yes, proceedings between two companies.

MR FITZGIBBON:   Yes.

HER HONOUR:   Is this – an “application”?

MR FITZGIBBON:   Yes.

HER HONOUR:   “Damages for misleading and deceptive conduct” which is an action under the Trade Practices Act, I take it.

MR FITZGIBBON:   Yes, it is, your Honour.

HER HONOUR:   And “unconscionable conduct” which I take it is seeking equitable relief under the normal rules of equity?

MR FITZGIBBON:   Yes, but ‑ ‑ ‑

HER HONOUR:   And “passing off”, seeking equitable relief under the normal rules of equity.

MR FITZGIBBON:   Yes, but it goes beyond that.  It seeks the profits, it seeks an account of the profits, it ‑ ‑ ‑

HER HONOUR:   Yes, which are normal equitable remedies.

MR FITZGIBBON:   Yes, except that, your Honour, when the allegation, as is contained here, is an allegation against the company and therefore against the directors ‑ ‑ ‑

HER HONOUR:   And not therefore against the directors.  And not therefore against the directors.  It is an action against the company and only against the company.

MR FITZGIBBON:   Well, the problem with that is the concealment which I have, in fact, referred to in the submission to the Court – that what the applicant says here is – and it is a matter of record, I suggest – that the presiding judge was not, in fact – there was not an open and fair disclosure of what had ‑ ‑ ‑

HER HONOUR:   By ‑ ‑ ‑?

MR FITZGIBBON:   By the liquidator.

HER HONOUR:   By counsel for the applicant, I take it you say?

MR FITZGIBBON:   Yes.

HER HONOUR:   Yes, but that is a matter about which you could complain in the Federal Court or you could have complained in the Federal Court.  It was a matter upon which you could ask for compensation by reason of the adverse effect of the operation of the order.

MR FITZGIBBON:   Yes.

HER HONOUR:   And there was an undertaking to that effect.  Have you sought compensation in the Federal Court pursuant to the terms of that order?

MR FITZGIBBON:   No, your Honour, we have not.  We, of course, did file this matter in this Court.

HER HONOUR:   Yes, but it seems to me you have completely misconceived the nature of the proceeding which you have instituted in this Court.  It is not an appeal.

MR FITZGIBBON:   I accept that.

HER HONOUR:   And, above all, it is a discretionary remedy which is only granted if there are not other avenues by which to obtain appropriate remedies.

MR FITZGIBBON:   Yes.  The difficulty I find with that, your Honour, is this:  I agree with everything your Honour has said except that under the Corporations Act there is no power – I accept there is a residual power in the Federal Court.  I am not arguing that.  What I am arguing is that there is no power for the liquidator to seek and for the court to grant ‑ ‑ ‑

HER HONOUR:   It is not the liquidator seeking anything.  It is the company seeking relief pursuant to the Trade Practices Act and general equitable principle.

MR FITZGIBBON:   Yes, but, your Honour, I say, supervening on that is the very restrictions on the liquidator put there by the Corporations Act and that includes, your Honour – it is very carefully structured and 598(2) and (3), of course, are made specifically subject to 533 and under 533, if the liquidator proposes to take an action such as he has, then he must first go to ASIC and he has not done that.

HER HONOUR: Section 533 ‑ ‑ ‑

MR FITZGIBBON:   You see, it brings in the very concept under 533(1) ‑ ‑ ‑

HER HONOUR:   What is there in the Corporations Act that you say prevents a company in liquidation relying on the Trade Practices Act and general equitable principle?

MR FITZGIBBON:   Because I believe, your Honour, the Act of itself designates the powers of a liquidator.

HER HONOUR:   We are not talking about a liquidator’s powers.  We are talking about a company in liquidation.

MR FITZGIBBON:   Yes.  Well, I believe, with respect, we are still circumscribed because the deliberate intention of the Act is to lay out what those powers and duties are and what I say is the scheme of the Act has been deliberately avoided and ‑ ‑ ‑

HER HONOUR:   Are you trying to tell me – and you must – that the Corporations Act impliedly repeals the Trade Practices Act?

MR FITZGIBBON:   As to the powers of a liquidator, yes.

HER HONOUR:   We are not talking about the powers of a liquidator.

MR FITZGIBBON:   All right.

HER HONOUR:   We are talking about a company in liquidation.

MR FITZGIBBON:   Yes.

HER HONOUR:   A company in liquidation has instituted proceedings under the Trade Practices Act in general equitable principle in the Federal Court.  The Federal Court has jurisdiction to entertain proceedings under the Trade Practices Act to which there is appended a claim under equitable principle.  That much we must accept.  Now, you have to tell me that there is something which has curtailed the court’s jurisdiction ‑ not the powers of the liquidator, the court’s jurisdiction to entertain an action under the Trade Practices Act to which there is appended a claim under general equitable principle.

MR FITZGIBBON:   Yes, I believe I can, your Honour, in this sense:  there was before the court already partial evidence that a prior action had been taken by the ACCC but what – and I must go into the area of what the liquidator or whoever was responsible has done – there was was a failure there to tell the court that in fact an appeal had been lodged by ITR prior to liquidation against the orders of Justice Cooper but the liquidator chose to simply not – as he has a right to do – to continue on with that.  And then he comes back to the Court – this Court – and bearing in mind what I have said about all the things that he claims, he claims to be able to – having taken the action of abandonment, he then comes back to the Court and he decides that he will have another action against what he says is a successor company.  Now, what I am saying there is ‑ ‑ ‑

HER HONOUR:   He does not say that.

MR FITZGIBBON:   Yes, I agree with that.

HER HONOUR:   He does not say that at all.

MR FITZGIBBON:   He must say that otherwise he cannot succeed with ‑ ‑ ‑

HER HONOUR:   No, he does not.  You can have a passing off action and an action under the Trade Practices Act against wholly unrelated companies.  Now, let us say – I am sorry, it just seems to me, Mr Fitzgibbon, you are failing to come to grips with the nature of this proceeding.

MR HENKE:   Would your Honour permit me to clarify this, perhaps?

HER HONOUR:   Well, you can speak to Mr Fitzgibbon.

MR HENKE:   Okay.

MR FITZGIBBON:   Your Honour, if I can summarise it in this fashion, that the evidence tendered before Justice Nicholson was the evidence, of course, tendered in front of Justice Cooper.  Upon that, he ‑ ‑ ‑

HER HONOUR:   None of that is making any sense to me.  I am sorry.  You have given me a bundle of documents; you have at no point attempted to even set out a useful chronology.  You do not have to but that is normally the function of the affidavit.  But, in any event – I heard what Mr Henke

said – they were matters that could be raised, if one wished, in proceeding S203 of 2001.  They could be raised, perhaps, on an application to stay the proceedings for an abuse of process; they could be raised, perhaps, by way of defence; they could be raised by way of “unclean hands”, if you like, to resist the granting of equitable relief and so on and so forth.  All of that is perfectly understandable, but they are matters to be raised by Institute of Taxation Research Australia Pty Limited in those proceedings, and they do not suggest on any view, as you are contending, that the Federal Court had no jurisdiction to entertain the proceedings.

MR FITZGIBBON:   Yes, thank you, your Honour.  Your Honour, my client has heard what your Honour says and, with respect, my instructions are to withdraw the application and we will take whatever remedies are available in ‑ ‑ ‑

HER HONOUR:   Well, you had better think very carefully as to which remedies are available to the company, Institute of Taxation Research Australia, and what are available to Mr Henke personally because the two are not by any means – well, it is not obvious to me that the two are the same.

MR FITZGIBBON:   Yes, I understand what your Honour is saying and I think that – yes, I take onboard what your Honour has said.

HER HONOUR:   Very well.  Well, leave is granted to withdraw the application.

MR FITZGIBBON:   Yes, thank you.  Your Honour, I am grateful for your Honour’s help.

HER HONOUR:   Advice, I think.

MR FITZGIBBON:   It has not been the easiest.

HER HONOUR:   Yes, thank you.  The Court will now adjourn.

AT 10.32 AM THE MATTER WAS CONCLUDED