MacLeod v Australian Securities Commission

[2000] HCATrans 480

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P39 of 2000

B e t w e e n -

MALCOLM MACLEOD

Applicant

and

AUSTRALIAN SECURITIES COMMISSION

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 10.38 AM

Copyright in the High Court of Australia

MR M. MACLEOD appeared in person.

MR E.M. HEENAN, QC:   May it please your Honours, I appear with my learned friend, MS R.V.C. FOGLIANI, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

McHUGH J:   The Court has studied these papers and there are a number of problems, Mr MacLeod.  I am going to try and outline the problems I see but it seems to us that they are matters that require you to get further legal advice on as to whether or not you want to raise some of the points I am about to mention.  Perhaps it will be easier if I have a discussion with Mr Heenan and you can follow it, take the transcript.  Maybe the local Bar Association or Legal Aid or somebody will give you assistance.  There seem to me to be some very important points, constitutional and otherwise, in this particular case and it may be that you are buying into a great constitutional case where you might be at risk of costs and these are matters that you would have to give consideration to.

MR MACLEOD:   Yes.

McHUGH J:   Mr Heenan, the first thing is that it seems to me strongly arguable that the Full Court never even got into the right jurisdiction.  This was as plain a case of federal jurisdiction as you could ever find.  I mean, in Edensor, your client submitted that it was the Commonwealth and that the proceedings were in federal jurisdiction, and from the very beginning of these proceedings it seems to me that this case was in federal jurisdiction.  The case has been conducted on the basis that it was in State jurisdiction.  Now, I think that by reason of the operation of section 79 of the Judiciary Act it may well be that some of the problems that were seen in Bond, Hughes and Byrnes arise in this particular case and that one cannot just simply say that this is a Davern v Messel case.  There seem to me some difficult questions about the Tasmanian judgment of Hosken, in its reliance on section 11(7) because 11(7) would operate as a federal law and not as a State law to authorise the State who was imposing this duty on the ASC.

So, it seems to me, to begin with, the first problem is that the judgments below have assumed that the matter was in State jurisdiction. Having regard to what your client submitted in Edensor and what seems right as a matter of principle was a matter in federal jurisdiction and therefore section 79 of the Judiciary Act operated.  Then that means there is a Bond issue of the competency of the appeal, but the Full Court approached the matter primarily on the basis of the applicability of this Court’s decision in Davern v Messel and on that basis it distinguished what was said in Byrnes and Bond.

There is another point that seems to me to be lurking in the case; a Hughes issue.  As far as I could see, the only thing that could justify this prosecution is that you would have to read down section 999 as applying to statements in respect of a 51(xx) corporation and then that raises a question raised in Dingjan Re Wagner as to whether or not a statement by A to B about a corporation is a law with respect to a trading and financial corporation in 51(xx).  Then there is a Bond competency issue of the role of the Commonwealth DPP as agent or counsel for ASC as well. 

Now, one matter that I think is of some concern is that on the Bond competency issue you have to find a State law which empowers the ASC to appeal and a Commonwealth law consenting to it.  Now, you would no doubt point to section 56 of the local statute as picking up 206A.  Then you have to ask whether that serves a double function of both conferring jurisdiction on the Full Court to hear the appeal and also authorises the ASC to lodge the appeal.  Then you have to find a Commonwealth statute which consents to that imposition of an obligation or power on ASC.  No doubt you would rely on section 56 but there may be some arguments about whether 56 can operate as a consent.

In a general way, having studied these complex issues, it seems to me that the case raises a lot of matters that really just have not been dealt with and that in fairness to Mr MacLeod he should be given an opportunity to seek some legal advice.  With great respect to the legal advice he has been tendered, it does not seem to me to have dealt with all of the issues that arise under these cases.

Now, when they are fully examined, his advice may be, “Well, you’re unlikely to succeed” or “There’s too much risk of you succeeding.  You may run the risk of incurring many thousands of dollars worth of costs in a case in which probably every State in the Commonwealth would want to intervene”.  So, I think the Court’s suggestion is the matter ought to be adjourned to enable Mr MacLeod to get some advice and the matter can be re-listed at some convenient time.  Do you see any problems with that course, Mr Heenan?

MR HEENAN:   No, your Honours.  I can hardly contend, in the face of the issues which your Honour has raised, that this is a simple or straightforward matter or that the answers are obvious.  In our written submissions - - -

HAYNE J:   But it may be that they are, Mr Heenan.

McHUGH J:   Yes, they may be.

HAYNE J:   It may be that these difficulties can be circumvented but at the moment they are problems that have not been confronted because of the premise from which the argument has begun that it was in State jurisdiction.

KIRBY J:   Do you contest that?

HAYNE J:   Now, once you take that - - -

MR HEENAN:   I accept that it is arguable.

KIRBY J:   Because that is the ladder into the problem.

MR HEENAN:   I accept that it is arguable that the mere fact that there was a Commonwealth body prosecuting might invoke the federal jurisdiction and that appears - - -

KIRBY J:   And then you land on the snakes.

MR HEENAN:   That appears to be implicit in Justice McHugh’s commentary.

McHUGH J:   Yes.

MR HEENAN:   We would say that whether that was so or not, there is in the body of the legislation, both State and federal, reciprocal conferrals of power.

HAYNE J:   But it was that kind of difficulty that led to Byrnes v Hopwood and, short of putting it down on paper step by laborious step, there is a risk of finding that there is a gap where it was thought there was ‑ ‑ ‑

MR HEENAN:   Yes.  We have prepared some schedules with the laborious steps but I expect it would take longer than 20 minutes to take your Honours through those.  Your Honours, our position is that there are answers to those issues and, while it may be true that the possibility of federal jurisdiction has been overlooked, our submission is that that would not alter the situation but I could hardly - - -

HAYNE J:   But it means that there are two Full Court State court judgments about which appear, at least at first blush, to proceed from a wrong or contestable premise.

MR HEENAN:   Yes.  I cannot object to a proposal that the applicant should have an opportunity for advice.

KIRBY J:   Do you have the document that you say traces the steps?

MR HEENAN:   Yes, we do, your Honour.

KIRBY J:   Because it could be that if that can be put on the record and made available to the applicant and his - - -

MR HEENAN:   We have one for each member of the Court and we can give it to Mr MacLeod.

KIRBY J:   It would be very unfair to the Court if this matter were, now having been raised, to be argued, it being very important for your client and possibly affecting other cases, without assistance at the other end of the Bar table.

MR HEENAN:   Yes, indeed, your Honour, and it would give rise to the need for section 78B notices.

McHUGH J:   Yes, certainly.  Mr MacLeod, I do not know whether you were able to follow that.  There is some very archaic lawyers’ law and constitutional questions, questions of federal and State jurisdiction, and it is at least arguable that the learned judges who have dealt with the case up to the present time have not understood that they were in federal jurisdiction and they thought they were in State jurisdiction.  So, that just shows some of the difficulties of the case.  But, unless you have some objection to it, we think the proper course would be to adjourn these proceedings to give you an opportunity to get legal advice, either through Legal Aid or, if that is not available, then hopefully the Bar Association of this State would make some lawyer available to give some advice in respect of the issues, and that the matter could then be re-listed as soon as convenient and perhaps be heard on video-link and we can look at the matter as a matter of substance at that stage.

MR MACLEOD:   Thank you.

HAYNE J:   It occurs to me, Mr Heenan, that an applicant, presently an applicant in person, is on the edge of a very large constitutional battle.  Questions of costs may loom large in decisions that are taken by him or those advising him.  They are, perhaps, matters that those who instruct you may take into account.  The points that are raised are points of importance and general application.  What attitude your client were to take in relation to those matters may or may not be of importance in the decisions that are made inside and outside the Court about the further conduct of the matter.

MR HEENAN:   Your Honour, I will endeavour to get instructions whether or not the respondent would bear its costs of these proceedings in any event and to inform the Court before the next hearing.

McHUGH J:   Yes.

MR HEENAN:   I understand that to be the burden of the proposition put to me.

KIRBY J:   That is a very proper statement to make, I think.

McHUGH J:   Yes.

MR MACLEOD:   Your Honours, is there any time frame here that we would look at?

McHUGH J:   No, but we would want the matter on as soon as we reasonably can.  I do not know when the next video-link from Perth would be on but I suspect it would not be until early next year some time.

MR MACLEOD:   That is fine.  I was notified of section 78B by the Assistant Registar, so I have taken some advice on that.

McHUGH J:   Yes.  Well, as to whether or not 78B notices are required on a special leave application depends upon whether or not this is a cause.  It is arguable that special leave applications are not causes but an application to commence a matter in the Court.  But certainly the important thing is to get some advice in respect of these issues of federal and State jurisdiction. 

MR MACLEOD:   Thank you.

McHUGH J:   Anything further, Mr Heenan?

MR HEENAN:   No, your Honours.

McHUGH J:   Very well.  The matter will be adjourned to a date to be fixed.

AT 10.53 AM THE MATTER WAS ADJOURNED