Kadam v MiiResorts Group 1 Pty Ltd (No 3)

[2017] FCA 1138

FEDERAL COURT OF AUSTRALIA

Kadam v MiiResorts Group 1 Pty Ltd (No 3) [2017] FCA 1138

File numbers:

QUD 528 of 2016
QUD 147 of 2017

Judge:

LEE J

Date of judgment:

11 September 2017

Catchwords:

PRACTICE AND PROCEDURE – issue in relation to jurisdiction identified as separate question to be determined at a separate trial – first duty of Court to determine questions of jurisdiction – Court satisfied that it has jurisdiction

Legislation:

Constitution

Corporations Act 2001 (Cth), s 461(1)(k)

Federal Court of Australia Act 1976 (Cth), Pt IVA

Judiciary Act 1903 (Cth), s 39B(1A)(c)

Federal Court Rules 2011 (Cth), r 30.11

Cases cited:

Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited [1911] HCA 31; (1911) 12 CLR 398

Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26

Re Culleton [2017] HCA 3; (2017) 91 ALJR 302

Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511

Date of hearing:

11 September 2017

Registry:

Queensland

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

8

Counsel for the Applicants:

Ms C M Kenny QC and Mr S S Monks

Solicitor for the Applicants:

Shine Lawyers

Counsel for the First Respondent:

Mr D Savage QC and Mr M Hickey

Solicitor for the First Respondent:

Tucker & Cowen Solicitors

Counsel for the First Intervener:

Mr T Bradley QC and Mr M Hodge

Solicitor for the First Intervener:

DLA Piper Australia

Counsel for the Second Intervener:

Mr P Looney QC and Dr R Schulte

Solicitor for the Second Intervener:

Australian Government Solicitor

ORDERS

QUD 528 of 2016
QUD 147 of 2017

BETWEEN:

SUNANDA BALKRISHNA KADAM

First Applicant

VISHAL DILIP MHETRE

Second Applicant

ABASAHEB RUPNAR

Third Applicant

AND:

MIIRESORTS GROUP 1 PTY LTD ACN 140 177 395

First Respondent

PEARLS INFRASTRUCTURE PROJECTS LIMITED (INDIA)

Second Respondent

PACL LIMITED (INDIA) (and others named in the Schedule)

Third Respondent

SECURITIES AND EXCHANGE BOARD OF INDIA

First Intervener

THE COMMISSIONER OF TAXATION

Second Intervener

JUDGE:	LEE J
DATE OF ORDER:	11 SEPTEMBER 2017

THE COURT ORDERS THAT:

1.Question 1 of the “Questions for separate trial” identified at annexure A to the Orders of Murphy J dated 16 June 2017 is answered: “yes”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from the transcript)

LEE J:

1. This proceeding is a representative proceeding pursuant to Part IVA of the Federal Court of Australia Act 1976 (Cth) (representative proceeding).  The overall representative proceeding is of some complexity, but it is unnecessary to deal with those complexities for the purposes of dealing with the present aspect of the controversy. 

2. On 16 June 2017, a judge of this Court made orders pursuant to FCR 30.11 that this representative proceeding be heard together with another proceeding (QUD 147/2017), which has been commenced by the Securities and Exchange Board of India (SEBI) (which is also an intervenor in this representative proceeding). I will describe this later proceeding as the Separate Proceeding.

3. Additionally, orders were made to determine a variety of issues at a separate trial.  As is well known, this is an orthodox course in representative proceedings: see Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26. One of the issues to be determined was as follows:

   (1)Does the court have jurisdiction to determine the claim made in these proceedings?

4. Indeed the issue of the jurisdiction of the Court, raised by the first respondent (MiiResorts), transcends the representative proceeding, and was raised also as an issue in relation to the Separate Proceeding.  Mr Savage QC, who appeared with Mr Hickey for MiiResorts, made it clear during the course of the hearing this morning that the issue as to jurisdiction in relation to both proceedings was no longer pressed.  It necessarily follows that this amounts to a concession that both the representative proceeding and the Separate Proceeding form part of the overall justiciable controversy between the parties, which is amenable to quelling by this Court exercising judicial power in accordance with Chapter III of the Constitution.  But jurisdiction cannot be conferred by agreement and the views of the parties are not determinative of the question posed for determination.  As Griffith CJ explained in Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited [1911] HCA 31; (1911) 12 CLR 398 at 415, it is the:

   …first duty of every judicial officer to satisfy himself that he has jurisdiction...

5. This duty was recently referred to by Gageler J in Re Culleton [2017] HCA 3; (2017) 91 ALJR 302 at 306-307 [23]-[24], where his Honour regarded it as of “utmost importance” that a jurisdictional issue be raised at the earliest opportunity and for it to be considered and determined. For my part, in the light of the issue being raised and pleaded, and the identification of the separate question, I regard it as necessary that I satisfy myself as to jurisdiction, regardless of whether the parties now seek to pursue the issue or not. 

6. It should be well known to any practitioner in the Court that, since s 39B(1A)(c) of the Judiciary Act 1903 (Cth) was introduced in 1997, Parliament changed this Court from being a court of specific federal jurisdiction into a court of more general jurisdiction, extending its reach to all controversies or ‘matters’ across all areas with respect to which Parliament has made laws. So long as a matter can be said to ‘arise’ under a law of the Parliament, then this Court is vested with jurisdiction, including its accrued jurisdiction, to hear the whole of the matter.

7. When the originating application was filed in the representative proceeding, relief was sought under s 461(1)(k) of the Corporations Act 2001 (Cth), that MiiResorts be wound up on the just and equitable ground. The circumstances relied upon to seek that relief under the Corporations Act arise out of the same factual substratum that gives rise to other claims for final relief in both proceedings.  From that moment onwards, the whole matter was indubitably within federal jurisdiction.  Any suggestion to the contrary is, and always was, untenable.  It is plain that the Court has jurisdiction to deal with the entire justiciable controversy the scope of which transcends this representative proceeding.  It is, of course, trite that a single matter can proceed through more than one Court, a fortiori in separate proceedings in the one Court: see Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 584-585 [137]-[139] per Gummow and Hayne JJ.

8. Accordingly, the Court has jurisdiction, and the answer to the question identified at [3] above is “yes”.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:        26 September 2017

SCHEDULE OF PARTIES

QUD 528 of 2016
Respondents
Fourth Respondent:	NIRMAL SINGH BHANGOO
Fifth Respondent:	SUKHWINDER KAUR
Sixth Respondent:	GURPARTAP SINGH