Pauls Ltd v Elkington & Attorney-General

[2001] QCA 389

[2001] QCA 389

COURT OF APPEAL

McPHERSON JA
WILLIAMS JA
JONES J

Appeal No 680 of 2001

PAULS LIMITED
(ACN 009 698 015)  Respondent/Applicant

and

MILLY ELKINGTON   Appellant/Respondent

and

THE ATTORNEY-GENERAL
OF THE COMMONWEALTH                  Respondent-by-Election

BRISBANE

..DATE 17/09/2001

JUDGMENT

McPHERSON JA:  This is an appeal from a judgment in the Supreme Court of Mr Justice Douglas given on 22 December 2000. 

The question that came before his Honour involved a consideration of a question whether the "compulsory takeover and acquisition" provisions of the Victorian Corporations Law were validly enacted.  His Honour decided that they were and an appeal was instituted against that decision by Notice of Appeal filed on 18 January 2001.  There were some further amendments to that Notice of Appeal on 2 March, but in the meantime the appellant's appeal in this Court was proceeding.

On 8 February 2001, the appellant's outline was filed, followed on 9 March by the respondent's outline.  The appellant's reply was lodged on or about 3 April 2001.  At the request of the appellant or of the parties, the Registrar of this Court on 25 June assigned a hearing date for the matter and the date so assigned was 17 September 2001 which, of course, is today.

In the meantime, a new Corporations Act had been passed by the Parliament of the Commonwealth and it came into force on 15 July this year. On 30 July, the written outline of the Attorney-General for the Commonwealth, who had elected to intervene in the matter, was filed. It raised or relied on the Corporations Act recently passed by the Commonwealth to which I have referred. What, in substance, the outline said was that the existing question which had been argued before Justice Douglas had become "moot" in the light of the fact that the legislative provisions were now to be found not in the Victorian Act, but in the new Corporations Act of the Commonwealth. That would, one would have thought, have meant either that the question previously before Justice Douglas should have been dealt with by dismissing the appeal or it would have been possible for the parties, if they had chosen to do so, to seek to bring the remaining matters, if any, before this Court.

Instead, the appellant has chosen a rather different course from that.  On Friday of last week, 14 September, my Associate received a phone call from a member of the firm that acts for the appellant in this case.  She advised that it was the intention of the parties that the matter now before us should be adjourned to the hearing of another appeal, No 3262/2001.  In other words the hearing today would be effectively vacated. 

That was greeted with some degree of protest on the part of the Registrar of this Court.  We were told by the appellant's solicitor that no further information could be supplied consistently with that informant's instructions.  Late on Friday we received a letter dated 14 September 2001, which informed us that the following agreement had been reached by the parties:

1. the appeal in the matter before us now would be adjourned to the hearing of the other appeal to which I have referred, No 3262/2001;

2. that the appellant would give notice of proposed amendments to her Notice of Appeal in that matter and would do so by 21 September 2001; 

1. the respondent was to advise the appellant of any objection to the proposed amendments by 5 October 2001;

1. the appellant would file supplementary outline of argument by 12 October 2001;

1. the respondent and the Australian Government's solicitor would file responsive outlines of argument by 2 November 2001; and

1. the costs of the appeal 680/2001 before us now would be reserved to the hearing of that other appeal, 3262/2001.

This arrangement was arrived at entirely without reference to the Court; but, upon the case coming on for hearing this morning, Ms Craig appeared and applied for an adjournment on behalf of the appellant.  In the written submissions which she presented in support of her application for adjournment there is a statement in paragraph 7 that says that the question in this appeal (No 680/2001) will now arise only if a particular section of the new Corporations Act is not valid. Fresh notices will have to be given under s.78B of the Judiciary Act.

The suggestion that we should now abandon that question leaving it to be determined at some as yet unfixed future date to enable the issue of the validity of the provision of the Corporations Act to which I have referred to be debated seems to me to be an unsatisfactory one. It would be far better for us to dispose of the matter that was originally before Mr Justice Douglas, in respect of which appropriate notices were given in accordance with s.78B of the Judiciary Act, so that that question can finally be put out of the way.  If there is a viable argument in relation to the validity of the new Corporations Act, or a particular section of it, then it can no doubt be pursued either in No 3262/2001, if that is the appropriate course, or by some other form of procedure by which such questions of law or constitutional validity are commonly raised and determined.

Mr Wilson of counsel, who appears for the respondent, who was the successful party in the Court below, says he can see no reason why we should not determine the matter in that way; if we were to do so, we would be sure to keep clear of the other point in respect of which the appellant has only now - that is to say, in the written submissions for an adjournment this morning - put forward any reason at all for suggesting the subject legislation is not valid.  Section 78B of the Judiciary Act refers to hearing evidence and argument concerning matters severable from any matter arising under the constitution or involving its interpretation.  It is, in my view, open to us to dispose of what is described now as the "moot" point in these proceedings, so that it is not left to encumber whatever other appeals or other proceedings may ensue in respect of the entirely new matter that was raised for the first time only in the submissions this morning.

In saying that, I would point out that the appellant has been in possession of the Commonwealth Attorney's written submissions on this subject since 30 July this year.   Despite efforts to which Mr Wilson referred in his submissions this morning, no written or other intimation or indication of the point that was going to be taken has been forthcoming from the appellant in all those weeks.

In the result, I would not be prepared to adjourn the appeal as it was constituted at the time it was instituted; that is to say, in so far as it deals with what has been described as the "moot" point, but would prefer to hear that matter now and dispose of it in due course.

The parties have not all come here, as they should have been, equipped with counsel to address the Court on that matter.  If there is anything further to be said beyond what is already contained in the written submissions, it can be catered for by allowing a further period of say five days to the end of this week to enable any additional submissions in support of the appeal (as it was originally constituted) to be put before us.  In the result I would refuse to adjourn the hearing of the appeal.

WILLIAMS JA: If the provisions of the Corporations Act 2001, particularly section 1384 therefore, are valid, then the point of law decided by Justice Douglas would be moot. However, it seems clear from material placed before this Court that the appellant intends to challenge the constitutional validity of section 1384 in particular.

If that section were held to be invalid then it would be necessary to consider the correctness of the decision of Justice Douglas.  That issue is now before this Court.  The Court is in a position to hear and determine that matter and in my view this Court should proceed to dispose of that point at this stage.  If in the end it is a moot point then nothing in essence has been lost.  As I've said the parties have already submitted substantive written outlines in relation to today's hearing.  In light of all the matters referred to by the learned presiding Judge I also am of the view that the adjournment should be refused and the issue in question should now be determined by this Court. 

JONES J:  And I also agree with that course.

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