Musumeci Property Investments Pty Limited in its capacity as the trustee of the ABC Discretionary Trust v National Australia Bank Ltd & Ors

[2024] NSWSC 43

Supreme Court

New South Wales

Medium Neutral Citation:

Musumeci Property Investments Pty Limited in its capacity as the trustee of the ABC Discretionary Trust v National Australia Bank Ltd & Ors [2024] NSWSC 43

Hearing dates:

31 January 2024

Date of orders:

2 February 2024

Decision date:

02 February 2024

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Proceedings dismissed; order as to costs made.

Catchwords:

CORPORATIONS – Whether receivers validly appointed – whether s 8 of Farm Debt Mediation Act 1994 (NSW) applies where secured property wholly outside New South Wales.

Legislation Cited:

- Acts Interpretation Act 1901 (Cth), s 21

- Conveyancing Act 1919 (NSW), s 111(2)(b)

- Corporations Act 2001 (Cth), s 418A

- Farm Debt Mediation Act 1994 (NSW), ss 4, 5, 8, 14

- Farm Debt Mediation Act 2017 (Qld)

- Farm Debt Mediation Act 2018 (SA)

- Farm Debt Mediation Act 2011 (Vic)

- Federal Court Act 1976 (Cth), ss 33A, 33D

- Interpretation Act 1987 (NSW), s 12

- Law of Property Act 2000 (NT), s 89

- Real Property Act 1900 (NSW), s 57(2)(b)

- Water Management Act 2000 (NSW), s 71X(1)(b)

Cases Cited:

- BHP Group Ltd v Impiombato (2022) 405 ALR 402; [2022] HCA 33

- Chubb Insurance Company of Australia Ltd v Moore (2013) 302 ALR 101; [2013] NSWCA 212

- Commonwealth Bank of Australia v Ellis (unreported, 2 April 1997)

- Constaninidis v Equity Trust Ltd [2010] NSWSC 299

- DRJ v Commissioner of Victims’ Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242

- Edmonds v Barrington Winstanley Group [2023] NSWCA 166

- Jones, Weaver and Saker as Receivers and Managers of Narrogin Beef Producers Pty Ltd (recs and mgrsapptd) v Narrogin Beef Producers Pty Ltd (recs and mgrsapptd) (No 2) [2010] WASC 365

- National Australia Bank v Redside Pty Ltd (2023) 69 VR 539; 167 ACSR 668; [2023] VSC 145

- Re Munja Bakehouse Pty Ltd [2024] NSWSC 6

- Syncap Management (Rural) Australia Ltd v Lyford (2004) 51 ACSR 223; 22 ACLC 1508; [2004] FCA 1352

- Wipro Ltd v State of New South Wales [2022] NSWCA 265

Category:

Principal judgment

Parties:

Musumeci Property Investments Pty Ltd in its capacity as the trustee of the ABC Discretionary Trust (First Plaintiff)
Cheeky Farms Pty Ltd (Second Plaintiff)
National Australia Bank Limited (First Defendant)
Sam Andrew Marsden (Second Defendant)
Timothy Joseph Heenan (Third Defendant)
Kathie Musumeci (Fourth Defendant)

Representation:

Counsel:
M Pesman SC/D Brezniak (Plaintiffs)
A Leopold SC/B Koch (First – Third Defendants)

Solicitors:
Avondale Lawyers (Plaintiffs)
Corrs Chambers Westgarth (First – Third Defendants)

File Number(s):

2024/23408

Judgment

Nature of the application and background facts

1. By Summons filed on 19 January 2024, the Plaintiffs, Musumeci Property Investments Pty Ltd (“MPI”) in its capacity as the trustee of the ABC Discretionary Trust and Cheeky Farms Pty Ltd (“CFPL”) seek a declaration that the appointment, by National Australia Bank Ltd (“NAB”), of Messrs Marsden and Heenan as joint and several receivers and managers (“Receivers”) in respect of the secured property of MPI and CFPL be set aside and consequential relief. The Plaintiffs seek that relief under s 418A of the Corporations Act 2001 (Cth) (“Act”), to which I refer below. The issue raised involves a question as to whether the Farm Debt Mediation Act 1994 (NSW) (“FDMA”) extends to an appointment of receivers that occurred in New South Wales in respect of property situated wholly outside New South Wales. The Fourth Defendant, Ms Kathie Musumeci, has undertaken to the Court to indemnify the Plaintiffs for all costs incurred by them in respect of this proceeding and any adverse costs order that is made against them in this proceeding.

Background facts

2. The parties ultimately did not read any affidavit evidence. They agreed several background facts, which were noted by orders made by Rees J on 25 January 2024, to which I refer below, and tendered documents relating to their relationship.

3. It is common ground that the Plaintiffs borrowed in excess of $9 million from NAB in connection with a substantial mango farming operation in the Northern Territory and that CFPL operates that business on land owned by MPI. NAB and MPI are party to a Business Letter of Offer dated 24 August 2020 recording a loan to MPI of $3.5 million in respect of working capital and $5.88 million in respect of the purchase of real property located in the Northern Territory. It is an agreed fact that the governing law of the loan facilities provided by NAB to MPI pursuant to that Business Letter of Offer is the law of New South Wales. CFPL and NAB are party to an Equipment Loan and Goods Mortgage dated 14 October 2016 recording a loan of $1 million in respect of equipment that was located in the Northern Territory. It is also an agreed fact that the governing law of that Equipment Loan and Goods Mortgage is the law of New South Wales.

4. By General Security Agreements dated 5 July 2018, CFPL and MPI granted security interests over the present and future rights, property and undertaking of CFPL and MPI respectively, including farm machinery situated wholly in the Northern Territory. Each of those agreements is expressed to secure the amount owing as a security interest over personal property and a charge over “other property to NAB by way of fixed charge” and the “other property” is defined in each agreement to include present and after acquired rights and interests in land. There are agreed facts that the governing law of the General Security Agreements are also the law of New South Wales. MPI also granted a registered mortgage in favour of NAB on 20 July 2018 in respect of the Berry Springs and Lambells Lagoon properties located in the Northern Territory and also granted a registered mortgage dated 3 September 2020 in respect of a third property also located in the Northern Territory. It is an agreed fact that the governing law of those registered mortgages is the law of the Northern Territory.

5. On 1 November 2022, NAB gave notice to MPI and CFPL under s 89(2) of the Law of Property Act 2000 (NT) of the exercise of a power of sale, referring to default in respect of the General Security Agreement and mortgages, arising from a failure to pay the total amount owing of $9,710,408.86 and giving notice that NAB as mortgagee may proceed to take specified steps unless MPI remedied the default. By a Deed of Forbearance and Settlement dated 2 February 2023 between NAB, MPI, CFPL and Ms Musumeci, the parties recited that one or more Existing Events of Default (as defined) had occurred under the terms of the Facilities and Securities and that NAB was entitled to take enforcement action and recorded the terms on which NAB then agreed to forbear from undertaking such action. On 1 November 2023, NAB gave a further notice under s 89(2) of the Law of Property Act 2000 (NT) of the exercise of power of sale, relating to a debt that had then increased to $9,746,087.14. There are agreed facts that NAB has not served a notice pursuant to s 57(2)(b) of the Real Property Act 1900 (NSW) on MPI and that NAB has served notice pursuant to s 89(2) of the Law of Property Act 2000 (NT).

6. On 21 December 2023, MPI, CFPL and Ms Musumeci sent an Intake Agreement for Farm Debt Mediation to the NSW Rural Assistance Authority (“Authority”), which was copied to NAB, seeking to invoke the provisions of the FDMA.

7. By Deeds of Appointment of Receivers and Managers dated 15 January 2024, NAB appointed the Receivers as joint and several receivers and managers in respect of the Secured Property (as defined) in respect of each of MPI, relying on the relevant General Security Agreement and the mortgages, and CFPL, there relying on the General Security Agreement. It is an agreed fact that, if the FDMA otherwise applies, the appointment of the Receivers was “enforcement action” for the purposes of the FDMA: Constaninidis v Equity Trust Ltd [2010] NSWSC 299. For the purposes of this hearing, the Plaintiffs do not dispute that NAB was entitled to appoint the Receivers, other than by the claim which they advance in respect of the FDMA.

8. The Plaintiffs contend that the Court should find that the appointment of the Receivers was made in New South Wales and point to the facts that each Deed of Appointment was sent by NAB from an address in Sydney; was received by the Receivers at an address in Sydney; required service of any notices under the Deeds to the Receivers at the specified addresses in New South Wales (cl 6.3); nominated the laws of New South Wales as the governing law (cl 7.2); and the registered address of each of MPI and CFPL was in Sydney. After a degree of vacillation in oral submissions, Mr Leopold, with whom Mr Koch appeared for NAB, accepted that the Deeds of Appointment were executed in New South Wales or at least that the Court should properly reach a finding to that effect where both NAB and the Receivers are there recorded as having addresses in New South Wales and NAB led no evidence to seek to establish the contrary. That acknowledgment, properly made, significantly narrows the scope of the issues in the application and marginalises aspects of wider issues raised by both parties.

9. For completeness, consistent with the matters noted above, it is also an agreed fact that all of the property to which the Receivers are appointed is located in the Northern Territory. The Receivers are not appointed in respect of any access licence within the meaning of the Water Management Act 2000 (NSW).

The relevant provisions of the FDMA

10. Section 5(1) of the FDMA provides that the FDMA applies in respect of creditors only in so far as they are creditors under a farm debt (as defined). As amended with effect from 3 September 2018, s 8 of the FDMA in turn provides:

“Exemption certificate required for enforcement action

(1) A creditor must not take enforcement action in respect of a farm mortgage unless an exemption certificate granted to the creditor is in force in respect of the farm debt concerned.

Maximum penalty:

(a) for a corporation — 2,500 penalty units, or

(b) for an individual — 500 penalty units.

(2) Enforcement action taken by a creditor in respect of a farm debt in contravention of this Act is void.

11. The term “creditor” is defined in s 4 of the FDMA as “a person to whom a farm debt is for the time being owed by a farmer.” The term “enforcement action” is defined, in relation to a farm mortgage, as taking possession of property under the mortgage or any other action to enforce the mortgage including specified matters. The term “farm” means “land on which a farmer engages in a farming operation.” The term "farm debt" is defined as a debt incurred by a farmer for the purposes of the conduct of a farming operation that is secured wholly or partly by a farm mortgage. The term “farm mortgage” is defined as including “any interest in, or power over, any farm property securing obligations of the farmer whether as a debtor or guarantor, including any interest in, or power arising from, a hire purchase agreement relating to farm machinery”, but excludes specified matters that are not presently relevant. The term “farm property” includes, relevantly, a farm or part of a farm or farm machinery used by a farmer in connection with a farming operation. The term "farmer" is defined as including a person (whether an individual person or a corporation) who is solely or principally engaged in a farming operation, as defined, and the term “farming operation” is defined in s 4AB of the FDMA as including, relevantly, “a business undertaking that primarily involves one or more of” specified activities, the first of which is “agriculture (for example, crop growing and livestock or grain farming).”

12. Mr Pesman, with whom Mr Brezniak appears for the Plaintiffs, draws attention to, and I also have regard to, the observations of Stern JA concerning the scope of s 8 of the FDMA in Edmonds v Barrington Winstanley Group [2023] NSWCA 166 at [103]-[120]. Her Honour there observed (at [103]) that the FDMA was amended in 2018, with the amendments commencing on 1 September 2018, and Mr Pesman rightly notes that those amendments took place before the enforcement action which is here contested by the Plaintiffs. Her Honour also there observed (at [119]-[120]) that:

“… enforcement action will be prohibited by s 8(1) [of the FDMA] only if:

(1) the relevant debt is a farm debt, which requires that attention be given both to whether it was incurred for the purpose of the conduct of a farming operation and to whether the debt is, at the time of the enforcement action, secured wholly or partly by a farm mortgage. That in turn requires that at the time the enforcement action is taken the creditor has an interest in or power over property, meeting the definition of farm property, where that interest or power secures obligations of a person meeting the definition of a farmer;

(2) the action is being taken by a creditor, being a person to whom a debt meeting the definition of a farm debt is owed by a person meeting the definition of a farmer at the time that the enforcement action is taken; and

(3) action is being taken to enforce an interest or power meeting the definition of a farm mortgage at the time that the enforcement action is taken.

For s 8(2) of the [FDMA] to operate and render void enforcement action taken by a creditor in respect of a farm debt, each of those definitions must be met at the time the relevant enforcement action is taken.”

13. Section 14 of the FDMA refers to the circumstances in which the Authority may grant or refuse an exemption certificate which requires, inter alia, that at least one “additional ground” for granting the exemption certificate as specified in s 14(3) is established. Relevantly, s 14(3)(b) of the FDMA specifies an additional ground that:

“the farm debt is secured by a farm mortgage over farm property in another State or Territory and in New South Wales and mediation (equivalent to satisfactory mediation) has taken place under a corresponding law of that State or Territory in respect of that part of the farm debt that is secured by a farm mortgage over farm property in New South Wales”. [emphasis added]

This provision applies to farm property located in both another state and New South Wales and not to property located only outside New South Wales and it is notable that no such additional ground for granting such a certificate is available where the relevant farm property is wholly located in the other state and not in New South Wales. The exception relating to a mediation in respect of that part of the farm debt that is secured by a farm mortgage over property in New South Wales also could not be satisfied, where no part of that property is located in New South Wales. I return to the significance of that matter below.

The parties’ submissions and determination

14. Mr Pesman submits and I accept that the Court has jurisdiction, in a proper case, to declare the appointment of the Receivers to be invalid under 418A(2) of the Act. This section allows the Court to make an order declaring whether the purported appointment of a controller is valid on the application of, relevantly, the corporation concerned: Syncap Management (Rural) Australia Ltd v Lyford (2004) 51 ACSR 223; 22 ACLC 1508; [2004] FCA 1352; Jones, Weaver and Saker as Receivers and Managers of Narrogin Beef Producers Pty Ltd (recs and mgrs apptd) v Narrogin Beef Producers Pty Ltd (recs and mgrs apptd) (No 2) [2010] WASC 365; National Australia Bank v Redside Pty Ltd (2023) 69 VR 539; 167 ACSR 668; [2023] VSC 145.

15. Mr Pesman submits that NAB’s appointment of the Receivers is void by reason of NAB’s suggested failure to comply with the mediation provisions of the FDMA prior to their appointment. Obviously enough, that submission depends upon the premise that the FDMA was applicable in the relevant circumstances. Mr Pesman identified the issues raised by the proceedings as follows:

“Does the [FDMA] have application in circumstances where:

(a) the relevant enforcement action prohibited by the Act takes place by reference to agreements the law of which is New South Wales (in the case of CFPL) or New South Wales and the Northern Territory (in the case of MPI); but

(b) the farms to which those agreements relate are not in New South Wales (in the present case in the Northern Territory)?”

The Plaintiffs contend that the FDMA does apply in those circumstances and the Receivers’ appointment is void on that basis.

16. Mr Pesman points out that the prohibition in s 8 of the FDMA is directed to “enforcement action” taken by a creditor, and he submits that that enforcement action here took place in New South Wales so that, properly considered, no issue arises as to any extraterritorial application of the FDMA in relation to the appointment of the Receivers. I accept that submission, the correctness of which is the necessary consequence of the matters to which I referred in paragraph 8 above. While no question arises here whether the FDMA extends to enforcement action taken outside New South Wales, a question arises whether the FDMA extends to enforcement action taken in New South Wales in respect of secured property that is situated wholly outside New South Wales. Mr Pesman identified a further question whether, if the relevant events involved the extraterritorial application of the FDMA, sufficient connection to New South Wales was established for the FDMA to apply. That question is of lesser significance where the relevant enforcement action, namely the appointment of the Receivers, took place in New South Wales.

17. Mr Pesman also draws attention to s 14(3)(b) of the FDMA, to which I referred above. Mr Pesman submits, by reference to that provision, that the FDMA proceeds on the basis that a mediation in respect of land in New South Wales can take place under cognate legislation in other states, and identifies that legislation as including the Farm Debt Mediation Act 2018 (SA), the Farm Debt Mediation Act 2011 (Vic) and the Farm Debt Mediation Act 2017 (Qld). Mr Pesman also submits that:

“This is further reinforced by the text of the Second Reading Speech when the Act was amended in 2018 … which emphasises the beneficial nature of the legislation and the intention of Parliament that interstate mediation be recognized in New South Wales (which would be otiose if such mediation could not affect land in New South Wales).”

I return below to the reasons why the construction of the FDMA for which Mr Pesman contends would subvert rather than advance such a statutory intent.

18. Mr Leopold in turn refers to Commonwealth Bank of Australia v Ellis (unreported, 2 April 1997) (“CBA v Ellis”) where Coldrey J observed, in a short judgment dealing with the FDMA as it stood prior to the amendments that took effect from 3 September 2018, that:

“On behalf of the plaintiff Mr Tsalanidis submitted that not only was there a well settled presumption that legislation does not have an extra-territorial effect (see for example Green v Burgess [1960] VR 158 quoted in Statutory Interpretation in Australia (1974) by DC Pearce), but the [FDMA] was expressed to apply to an Authority in New South Wales and sets out procedures that can only be observed in New South Wales. Here, the land in question is in Victoria and the mortgage applicable to it is registered in Victoria. In my view the Act does not have any extra territorial operation. Indeed, in the course of this hearing, Mr Ellis told the Court that he was not arguing that this particular Act applied.”

That observation was plainly not necessary to that decision, where Mr Ellis did not there contend for the application of the FDMA and his Honour’s reasoning was brief. I give limited weight to that decision, although I reach the same result where the relevant property is situated wholly outside New South Wales, for the reasons noted below.

19. Mr Leopold acknowledges that the MPI loan and the CFPL loan, and each of the General Security Agreements, are governed by the laws of New South Wales, although the mortgages are governed by the laws of the Northern Territory and each of the properties and the other property (including the farm machinery) secured by the General Security Agreements is situated in the Northern Territory. It does not seem to me that the choice of governing law advances matters very far, other than to raise the question of the content and effect of the FDMA, so far as it is part of the law that is applicable to those agreements.

19. Mr Leopold also submits, adopting an observation of Coldrey J in CBA v Ellis, that the procedures contemplated by the FDMA are to be observed by the Authority in New South Wales, and he refers to ss 9(1), 10, 11, 13, 14, 15(2)(c), 16(1), 18E(1), 18P and 19A of the FDMA in that regard. He places particular emphasis on s 18P of the FDMA, which provides that an application for an internal review of decisions by the Authority is to be dealt with by the Chief Executive of the Authority and points out that proceedings for an offence against the FDMA are to be dealt with summarily before the Local Court of New South Wales under s 25 of the FDMA. He submits that it would not be expected those procedures are to be applied to property outside New South Wales. I do not consider that I can make that assumption, particularly where the appointment of a receiver occurs in New South Wales. The scope of the FDMA must be determined by its text and the principles of statutory construction that I review below rather than by an a priori assumption as to how the Authority’s resources are to be applied.

20. Mr Leopold submits that:

“The starting point is that there is nothing in the FDMA that provides any indication at all that it has, or purports to have, application to land or personal property situated outside NSW or to mortgages governed by the laws of a state or territory outside NSW.”

It seems to me that matter is neutral, neither extending nor restricting any scope for extraterritorial application of the FDMA, if its application to enforcement action taken in New South Wales that related to property outside New South Wales could properly be characterised as involving an element of extraterritoriality. I refer to the applicable principles below.

22. Mr Leopold also places weight on the fact that “enforcement action”, as defined in s 4 of the FDMA, includes the giving of a “statutory enforcement notice”, which is defined in s 4 to mean several notices given pursuant to New South Wales legislation, namely a notice under s 57(2)(b) of the Real Property Act 1900 (NSW); a notice under s 111(2)(b) of the Conveyancing Act 1919 (NSW); and a notice under s 71X(1)(b) of the Water Management Act 2000 (NSW). I accept these references focus upon the New South Wales statutory regimes, but I also recognise that they form part of the wider definition of “enforcement action” to which I referred above.

23. Mr Leopold also submits that:

“[T]he FDMA expressly caters for a situation in which the “farm property” is located in NSW and in another State or Territory, but not where “farm property” is located wholly outside NSW. In that regard s 14(3)(b) allows for a creditor to apply for a certificate that the FDMA does not apply if the “farm property” is located in NSW and another State or Territory and there has already been a mediation under a law equivalent to the FDMA in that other State or Territory. That provision is significant in two respects:

(a) It implies that the law of another state or territory, equivalent to the FDMA, would apply to “farm property” which (as here) is wholly located in that other State or Territory;

(b) It ensures that, if farm property is located in NSW as well as in another State or Territory, a creditor is not required to mediate twice under different statutory regimes in respect of the same subject matter. If the legislature intended that the FDMA apply to “farm property” located wholly in another state or territory, the FDMA would logically provide the same protection to a creditor who had already participated in a mediation conducted pursuant to legislation of that state or territory equivalent to the FDMA. However, the FDMA does not so provide. Section 14(3)(b) therefore strongly supports a construction of the FDMA which treats the Act as inapplicable to “farm property” located wholly outside NSW.”

I return to the significance of this matter, which seems to me to be an important aspect of the structure of the FDMA, below.

24. Mr Leopold also refers to s 12(1)(b) of the Interpretation Act 1987 (NSW) (“Interpretation Act and an associated common law “presumption” that legislation does not have extraterritorial effect, which I address further below. Mr Pesman responds that s 12 of the Interpretation Act is “much more complicated than it may seem” (referring to DRJ v Commissioner of Victims’ Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 (“DRJ”) at [97] per Leeming JA; special leave refused [2021] HCASL 53), although he also submits that such complexity does not arise here where the enforcement action to which the statutory prohibition relates occurred in New South Wales. Mr Pesman also draws attention to the observation of Bell P (as the Chief Justice then was) in DRJ (at [11]) that s 12 of the Interpretation Act “is at best a starting point for analysis but it is a starting point that may readily be rebutted”, and he draws attention to the matters identified by Bell P (at [10(ii)-(iv)]) as available to rebut the presumption against extraterritorial operation. Mr Pesman also submits that the “hinge” (DRJ at [35], [157]; BHP Group Ltd v Impiombato (2022) 405 ALR 402; [2022] HCA 33 (“BHP”) at [59]-[63]; Wipro Ltd v State of New South Wales [2022] NSWCA 265 at [40]-[46]) which here supports the extraterritorial application of the FDMA (if, I interpolate, it were necessary to do so) is the protection of New South Wales farmers from enforcement action in New South Wales. I address these cases further below, although I consider they are of lesser assistance where the relevant enforcement action here took place in New South Wales by the appointment of the Receivers, and the question whether the FDMA applies is a matter of its proper construction, as applying to conduct in New South Wales, rather than one of any extraterritorial application of it.

25. I approach the question of construction raised by these proceedings, primarily in respect of ss 8 and 14 of the FDMA in this case, by reference to well-established principles of statutory construction. Counsel did not address those principles and I adopt my summary of them in Re Munja Bakehouse Pty Ltd [2024] NSWSC 6 at [35]ff as follows:

“In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, the High Court observed (at CLR 408) that:

“the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous … Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.” [footnotes omitted]

In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (“Project Blue Sky”), the majority of the High Court observed (at [69]) that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute; that the meaning of a statutory provision must be determined by reference to the language of the statute viewed as a whole; and that “the process of construction must always begin by examining the context of the provision that is being construed”. The majority then summarised (at [78]) the process of statutory construction as follows:

“the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.” [footnotes omitted]

In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 (“Alcan”) at [47], the High Court observed in a majority judgment that:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language that has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” [footnotes omitted]

The majority judgment also pointed (at [51]) to the risk that a Court would not give the text the necessary attention if it focussed on an anterior perception of the general purpose of a statute.

In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 (“Consolidated Media”) at [39], the High Court quoted the first sentence of the passage cited above from Alcan and again emphasised the primacy of the text in statutory interpretation, observing that:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.” So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.” [footnotes omitted]

In Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]-[23], the High Court observed, with reference to Consolidated Media at [39], that:

“Statutory construction involves attribution of meaning to statutory text. As recently reiterated:

“‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.”

Objective discernment of statutory purpose is integral to contextual construction. The requirement of s 15AA of the Acts Interpretation Act1901 (Cth) that “the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated …) is to be preferred to each other interpretation” is in that respect a particular statutory reflection of a general systemic principle.” [footnotes omitted]

In Australian Securities and Investments Commission (ASIC) v Taylor [2023] FCAFC 189 at [42], Mortimer CJ and Abraham J succinctly summarised the applicable principles as follows:

“The principles applicable to statutory construction are well established. The starting point for statutory construction is the text of the provision, having regard to its context and purpose: SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) at [14], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]–[71]; Alcan (NT) Alumina Pty Ltd v Cmr of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47].”

26. I have referred above to Counsels’ submissions as to the case law dealing with extraterritorial application of legislation. I have regard to the observation of Emmett JA and Ball J in Chubb Insurance Company of Australia Ltd v Moore (2013) 302 ALR 101; [2013] NSWCA 212 at [145] that:

“A basic canon of statutory interpretation is that legislation is presumed not to have extraterritorial effect: see Solomons v District Court of New South Wales (2002) 211 CLR 119; 192 ALR 217; [2002] HCA 47 at [9]. Under the general law, there is a presumption that legislation does not apply to persons and matters outside the territory of the legislature that enacted the legislation: Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10 at 23, 30–1, 38 and 43 ; [1966] ALR 791 at 793, 798–9, 804 and 807–8; [1966] HCA 11. Since s 6 is silent about any extraterritorial application or restriction, the extraterritorial application of s 6 should be construed as being limited in its operation to New South Wales. That approach is confirmed by s 12 of the Interpretation Act 1987, which provides that a reference in New South Wales legislation to a locality, jurisdiction or other matter or thing is a reference to a locality, jurisdiction or other matter or thing in and of New South Wales. Section 12 of itself is reason enough to read generally worded legislation as subject to a geographical limitation: Insight Vacations at [28]–[29].”

27. I also recognise that the Court of Appeal’s decision in DRJ indicates (adopting the summary in the headnote) that a State has extraterritorial legislative competence if there is any real connection, which may be a remote or general connection, between the subject matter of the legislation and the State (per Bell P at [20]; per Leeming JA at [128]). Bell P there observed that:

“Where no guidance is given, courts have had to resort to concepts such as the “hinge” around which a particular statute operates: see, for example, the decisions of the High Court in Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274; [2006] HCA 24 at [22] and Insight Vacations[Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16]. At [30] of its judgment in Insight Vacations, the court held that such a “hinge” must be determined on the relevant Act’s “proper construction”, taking into account its context and subject matter. This approach was adopted in Chubb [Insurance Company of Australia Ltd v Moore (2013) 302 ALR 101; [2013] NSWCA 212], with Emmett JA and Ball J (at [146]–[147]) emphasising the primacy of the statutory context and subject matter over the presumed limitation of territorial scope to matters governed properly by the lex fori … or to the legislative competence of the parliament…”.

28. Leeming JA also there observed (at [111]-[114]) that:

“There are two related but distinct common law rules of construction. Quite commonly, both are assimilated under the rubric of general words being read down so as not to have extraterritorial effect. Thus Emmett JA and Ball J, with whom Bathurst CJ, Beazley P and Macfarlan JA agreed, said that “[a] basic canon of statutory interpretation is that legislation is presumed not to have extra-territorial effect”: Chubb Insurance Company of Australia Ltd v Moore (2013) 302 ALR 101; [2013] NSWCA 212 at [145]. Their Honours cited the joint judgment in Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 at [9] which referred explicitly to a “general rule of construction” confining State legislation in that fashion. Likewise, McHugh J said in the same case at [37] that “[i]t is a long recognised rule of statutory construction that a reference to courts, matters, things and persons in the legislation of a State is a reference to courts, matters, things and persons in that State” (footnote omitted).

However, expressed at that level of abstraction, the rule may provide insufficient guidance as to precisely how the statute is read down. …

The solution to the issues posed by the plaintiffs’ summons is to recognise two things. The first is that the rules of construction are more nuanced. In the case of statutes which create offences, then the rule of construction is that every physical element is prima facie required to be in New South Wales. In the case of other statutes, then the question is to identify by reference to the statute’s context and subject matter the manner by which the generality of the statute is confined to New South Wales, which is normally by a single integer.

The second thing is that s 12(1)(b) is but one part of the process of statutory construction. Section 12(1)(b) is not an inflexible rule. It is expressly defeasible by s 5(2) when a contrary intention is discerned. More generally, the “rules of construction” preserved by s 5(4) overlap with, and are more nuanced than, s 12(1)(b). …”

29. His Honour also noted (at [157]) that:

“…in cases where no express provision has been made connecting the statute to New South Wales, the task is to identify the central focus or central conception of the legislation, and require that to bear a connection with New South Wales. One does so as a matter of construction, based on subject matter and scope, and with a regard to internal indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection.”

30. I also recognise that, in BHP, the High Court addressed, as matter of construction, a question whether Pt IVA of the Federal Court Act 1976 (Cth) permitted representative proceedings to be brought in the Federal Court of Australia on behalf of group members who are not resident in Australia, Kiefel CJ and Gageler J noted (at [23]) BHP’s reliance on a common law “presumption against extraterritorial operation”, which they observed was more accurately labelled a “presumption in favour of international comity”, and held (at [32]) that it provided no basis to read down general references to “group member” in s 33A or “other persons” in s 33D of the Federal Court Act 1976 (Cth), where binding a non-consenting group member who was not resident in Australia to a judgment of the Federal Court determining a matter in which the Federal Court had jurisdiction in a representative proceeding would not infringe any principle of international law or international comity. Their Honours also addressed the scope of s 21 of the Acts Interpretation Act 1901 (Cth), broadly corresponding to s 12 of the Interpretation Act, and observed (at [37]-[38]) that:

“Section 21(1)(b) [of the Acts Interpretation Act (Cth)] operates in harmony with s 15AA of the Acts Interpretation Act, which requires preference to be given in the construction of the particular statute to the construction which would best achieve the statutory purpose or object.42 Depending on what would best achieve the purpose or object of the particular statute in question, a construction which results in the existence of a connection sufficient to satisfy the requirement of the provision might be arrived at in a variety of ways and might well be arrived at through the concurrent application of the common law presumption. The requirement of a provision like s 21(1)(b) has been found in some contexts to be satisfied by treating a law of “apparently universal application” as “applying to acts and omissions taking place in the territory of the legislature”. In other contexts, it has been satisfied by treating the operation of a statute as “hinging on the place of performance of [a] contract”. In yet other contexts, it has been satisfied by limiting the operation of a statute to contracts the proper law of which according to applicable principles of private international law is that of the enacting legislature.

No one form of connection fits every statutory subject matter in every statutory context, and no implied limitation of statutory language is necessarily required for the connection required by s 21(1)(b) of the Acts Interpretation Act to exist in a particular statutory context. For example, in Re Maritime Union of Australia; Ex parte CSL Pacific Inc [(2003) 214 CLR 397; 200 ALR 39; [2003] HCA 43] no limitation was appropriate to be implied into a statutory regime conferring jurisdiction to conciliate and arbitrate “industrial issues”. The requisite connection between the subject matter and the Commonwealth was apparent in the definition of “industrial issues” provided by the statute, which relevantly included matters pertaining to the relationship between employers and maritime employees so far as those matters related to trade or commerce between Australia and a place outside Australia.”

31. Gordon, Edelman and Stewart JJ there referred to DRJ and observed (at [59]) that:

“In statutes, like the Federal Court Act, where there is no express provision relevantly addressing the territorial reach of the subject matter of the statute, the task is to identify the hinge (also referred to as the statutory springboard, general subject matter, object of legislative concern, central conception, character or central focus) of the statute and identify its territorial connection, if any. The applicable provisions, read in context, may have a hinge or subject matter with a clear territorial connection. That task — of identifying the “central focus” of a statute — is purely a question of statutory construction. As Leeming JA said in DRJ, the hinge or central focus is identified “as a matter of construction, based on subject matter and scope, and with a regard to internal indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection”.

32. Their Honours also observed (at [61]-[63]) that:

“Only after identifying the hinge of the provisions and revealing the territorial connection (if any) of the subject matter, does the question of the application of the common law presumption against extraterritoriality arise. The so-called “presumption” is an interpretive principle whose force depends upon the extent to which the hinge of the provisions departs from common expectations that Parliament’s concern with the subject matter is limited to matters within its territory. Put another way, the general common law presumption of territoriality — that an enactment describing acts, events, matters or things in general words, so that, if constrained by no consideration lying outside its expressed meaning, its application would be universal, should not be understood as extending extraterritorially — is a rule of construction only and “it may have little or no place where some other restriction is supplied by context or subject matter [of the statute in issue]”. Whether a restriction is supplied by the context or the nature of the subject matter is a question of statutory construction which necessarily precedes the application of the presumption.

This Court has never taken a uniform or mechanistic approach to applying the presumption. Where the hinge or the central focus of the subject matter is identified and it does not have a clear territorial connection (that is, it appears to be at large), the presumption will generally require that the hinge be construed as territorially limited, subject to a contrary intention. Where the central focus of the subject matter of the statute, on its proper construction, has a territorial connection, it will ordinarily be unnecessary to look for further territorial restrictions. The presumption has never been understood such that it needed to be applied to all elements or words in a statute.

Section 21(1)(b) of the Acts Interpretation Act 1901 (Cth) does not compel a different approach or give rise to a different conclusion. Section 21(1)(b) provides that “[i]n any Act … references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth”. Section 21(1)(b) does not answer the question: what is the matter or thing which should be construed, subject to contrary intent, as “in and of” the Commonwealth? And, as this Court said in Insight Vacations, “the question of geographical limitation arises regardless of the engagement of a provision such as” s 21(1)(b) of the Acts Interpretation Act. The common law rules of statutory construction, including those relating to the “presumption” against extraterritoriality, step in to assist in identifying the territorial restriction. Where the statute is in general terms, and where s 21(1)(b) applies, the approach to construction of the statute and the conclusion are necessarily the same.”

33. I have had regard to these principles, although, as I noted above, I consider that they are of lesser relevance where the relevant enforcement action here took place in New South Wales by the appointment of the Receivers, and the question whether the FDMA applies is a matter of its proper construction, as applying to conduct in New South Wales, rather than one of any extraterritorial application of it. I can see no basis on which these principles could here lead to a different result to the application of the general principles of statutory construction to which I referred above.

34. It seems to me that the Plaintiffs’ construction of the FDMA cannot be accepted, irrespective of any presumption against any extraterritorial application of the FDMA in respect of the appointment of receivers to property situated wholly outside New South Wales. The Plaintiffs can only succeed if s 8 of the FDMA applies to the appointment of receivers, at least where that appointment is made in New South Wales, and the relevant secured property is wholly situated outside New South Wales. It would not assist them if the FDMA extends to enforcement action in respect of secured property located partly in New South Wales and partly outside New South Wales, as s 14(3)(b) of the FDMA may indicate, where it is an agreed fact that all of the property to which the Receivers are appointed is located in the Northern Territory.

35. The FDMA can operate in a coherent way where enforcement action takes place in respect of secured property located partly in New South Wales and partly outside New South Wales, since the Authority can grant an exemption under s 14(3)(b) of the FDMA where a mediation has taken place under a corresponding law of that State or Territory in respect of that part of the farm debt that is secured by a farm mortgage over farm property in New South Wales. However, if the FDMA extended to enforcement action in respect of property situated wholly outside New South Wales, as the Plaintiffs contend, the Authority could not grant such an exemption under s 14(3)(b) of the FDMA where a mediation had occurred in accordance with the requirements of corresponding legislation in the state in which that property was located. It seems that that result is so inconsistent with the language and purpose of the FDMA, as it emerges from its text and structure read as a whole, that the wider application of the FDMA that gives rise to it could not be accepted as a matter of construction.

36. It seems to me that there is no sensible construction of the FDMA, read as a whole, that could extend the application of s 8 of the FDMA to property held wholly outside New South Wales, while allowing no possibility of relief from the prohibition in that section where a farm debt mediation had occurred in accordance with the statutory requirements of the state in which the property was located. In my view, the construction for which the Plaintiffs contend would subvert the statutory purposes of the FDMA by prohibiting enforcement action under the FDMA although such a mediation had occurred. It is no answer to that wider outcome that, although several states have such legislation, the Northern Territory does not have such legislation. In these circumstances, it is plain enough that s 8 of the FDMA applies to the appointment of a receiver made in New South Wales where the relevant property is wholly within New South Wales; it is probable, given the exception in s 14(3)(b) of the FDMA, that it also applies where the relevant property is partly in New South Wales and partly in another state; but it does not apply, on its proper construction, where the relevant property is wholly outside New South Wales, so as to prohibit enforcement despite compliance with any applicable requirements of a corresponding statutory regime applicable in that other state.

Orders

37. For these reasons, I order that the proceedings be dismissed. Where Ms Musumeci has been joined as party to the proceedings and undertaken to indemnify MPI and CFPL against any adverse costs order, the proper order is that she pay the First-Third Defendants’ costs of the proceedings as agreed or as assessed.

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Decision last updated: 07 February 2024