Pt Bayan Resources TBK and BCBC Singapore Pte Ltd & Ors

[2015] HCATrans 181

[2015] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P14 of 2015

B e t w e e n -

PT BAYAN RESOURCES TBK

Appellant

and

BCBC SINGAPORE PTE LTD

First Respondent

KANGAROO RESOURCES LIMITED

Second Respondent

ATTORNEY‑GENERAL OF WESTERN AUSTRALIA

Third Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 10 AUGUST 2015, AT 2.30 PM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, QC:   May it please the Court, I appear with my learned friend, MR P. KULEVSKI, for the appellant.  (instructed by Clayton Utz Lawyers)

MR A.S. BELL, SC:   May it please the Court, I appear with my learned friend, MR D.J. ROCHE, for the first respondent.  (instructed by Herbert Smith Freehills)

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MS M. GEORGIOU, for the third respondent.  (instructed by State Solicitor (WA))

MR S.B. LLOYD, SC:   May it please the Court, I appear with MR D.P. HUME for the Commonwealth Attorney‑General intervening.  (instructed by Australian Government Solicitor)

MR G.D. BEACHAM:   May it please the Court, I appear, led by the Solicitor‑General for the State of Queensland, MR P.J. DUNNING, QC, with my learned friend, MR J.A. KAPILERIS.  (instructed by Crown Law (Qld))

MR R.M. NIALL, QC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with MR C.J. TRAN for the Attorney‑General for Victoria intervening.  (instructed by Victorian Government Solicitor)

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, in a jurisdiction or jurisdictions outside of this country, a commercial dispute arose.  It is now being litigated – that is, proceedings have commenced and the pleadings are in the course of preparation in the Singaporean courts.  Singapore, which has very similar faculties of protection of its administration of justice as our systems do, has not seen either an application for, let alone consideration of, anything in the nature of a freezing or Mareva order in that litigation.  This jurisdiction – that is, Western Australia – has both seen and entertained and granted relief in answer to that application.

FRENCH CJ:   The absence of an application in Singapore would be a matter that might be relevant to discretion, but it does not go to power, does it?

MR WALKER:   No, it does not go to power.  It points up, however, matters to which we will come later.  Returning then to the question of what I hope for convenience I may call the substantive dispute that is being litigated in Singapore there is, we submit, no jurisdiction to litigate it here, by which I mean in Western Australia or indeed in any Australian jurisdiction, and in any event there is no inkling of any intention of the respondent ever doing so or having attempted to do so, or having any such intention. 

So the case raises the extent of the power granted, jurisdiction in the sense of that power, by Order 52A of the Rules of the Supreme Court of Western Australia, and we can start by conceding that those words as promulgated, but for the arguments we make, are such as to permit of the orders that were sought and granted against us below. In that way the case is seen as one concerning the power to make what might be called the relevant parts of Order 52A, which plainly involve freezing orders in aid of proceedings outside of Australia, that is, a court outside Australia.

Your Honours will have gathered from the record in both courts below that for our part we have run the case without any contribution by way of opposition to all other elements of the power or jurisdiction to grant that relief under the Rules, that is, we have confined ourselves to what might be called the jurisdictional point.  I stress the jurisdictional point has nothing to do with the chimera of calling the orders of a superior court a nullity or void, rather, in the sense of the authority to decide the case under the head of power assumed by the court, and our case comes down to the invalidity of the only text, we submit, which is relied upon to that end.

FRENCH CJ:   Is it a case about jurisdiction or a case about power?

MR WALKER:   It is about power.

FRENCH CJ:   In aid of jurisdiction.

MR WALKER:   Yes.  Yes, I hope that some of the sentences I have already expressed try to make that clear.  You will see peppered throughout – not only from us – references to jurisdiction, and may I make it clear we are not talking about jurisdiction in the sense that describes the field within which a superior court operates and within which its orders must be obeyed unless and until set aside.  Rather, we are talking about jurisdiction in the related but other sense of the power to grant certain relief, the power to decide something, the power to entertain a kind of dispute.

Now, in this case, there is this further element which one needs to guard against as a confusion conceptually. It is accepted, as we read the written submissions and the lack of contention, in this Court it will not be contended to the contrary the following, namely, that Order 52A – that is, the Supreme Court rule – whichever of the Supreme Court Act provisions are said to support it cannot be read as travelling beyond what is called the inherent power, or the inherent jurisdiction of the Supreme Court. 

Now, if your Honours will forgive me, for the record as it were, and early, I need to pay the usual tribute to the difficulty that the expression “inherent jurisdiction” raises. It is not of the same kind as one finds mostly in the authorities because we are here talking about a State Supreme Court. But, of course, everything that has been said in the authorities in relation to the inaptness of that expression with respect to a statutory court obviously attracts the observation that all the State Supreme Courts owe something – either their continuance or their existence, certainly their current capacity to exercise power – to the existence of statutes. Indeed, also to the Constitution.

So there is no difference in reality between the notion of implied power or inherent power for the purposes of the argument as we present it, and we do not apprehend there is any such difference in the arguments of those opposed to us.  That leads, of course, whether one uses the epithet, as we would submit one may properly, “inherent”, or the more functional approach “implied”, one is talking about that which is reasonably necessary as being incidental to the administration of justice.

FRENCH CJ:   So is the question then whether the Foreign Judgments Act confers a federal jurisdiction on the Supreme Court of Western Australia which carries with it or otherwise attracts, via 79 or however, a power to make the order made in this case?

MR WALKER:   That is indeed one of the questions, yes.  That is indeed one of the questions.  Now, as your Honours will have seen, I am going to tackle the nub of what the Chief Justice has just put to me as a central question – the central question perhaps – by propositions 2 and 3 which are further elaborated.  But could I, before moving to the Commonwealth statute – and because section 79 of the Judiciary Act looms, of course – make the following further comment about our proposition 1. 

It is via that acceptance in the case that the Supreme Court Act authorised rules – if they are authorised by the Supreme Court Act – do not go beyond the limits of the inherent jurisdiction so far as they define and describe the circumstances in which, the manner in which, the Supreme Court can entertain a claim for, and in an appropriate case grant, a freezing order in aid of a substantive piece of litigation of a kind – between parties who do not and cannot invoke the jurisdiction to settle their substantive controversy here. 

Now, something is obvious about this case, which I have not yet said by way of opening, but this is the appropriate point to make the very obvious clear.  Of course, the litigation being pending in Singapore means that it may never finish, and if it does finish – that is, it may simply be discontinued – or, if it does finish, it may not finish favourably to the respondent.

FRENCH CJ:   But what does that tell us about power?

MR WALKER:   What that tells you in particular is that there cannot, at the moment, at all be the invocation of the statutory jurisdiction, the federal jurisdiction, which is in question in this case and is at the heart of this case, namely, an application under the Foreign Judgments Act.  That is what it tells us about power.  We are that further removed from the exercise of an undoubted jurisdiction of the Supreme Court by reason of the absence of any outcome in a foreign court. 

Now, in the courts below, we described the chance that there will never be an end – an outcome to the Singapore proceeding, or that it will not be favourable to the respondent, so there will never be a “money judgment”, to use the parlance of the Foreign Judgments Act, as a contingency, or as rendering that matter contingent.  It appears that has been misunderstood, to judge from what still appears in written submissions in this Court. 

We are not talking about the banal contingency which is true not just of freezing orders without any international element, but is true also of true interlocutory injunctions, that is, the contingency that the proceeding in aid of which such remedies are given may not end favourably for the party who seeks and is granted that interlocutory or temporary relief.

KIEFEL J:   Is it correct to equate – I understand why you are doing it for the purposes of your argument – but is it correct to equate a freezing order with an interlocutory injunction?

MR WALKER:   Absolutely not, and I am not going to do it except for that purpose, that there is a contingency involved in everything interlocutory, like an interlocutory injunction to which an undertaking for damages is appropriate, and there is that point of resemblance between a true interlocutory injunction, of which we are not concerned, and a freezing order, to which as well, of course, an undertaking for damages for exactly the same reason of its contingency – that is, there is a contingency whereby it shows that it was not necessary ‑ ‑ ‑

KIEFEL J:   Your purpose presently is to point out the importance of the undertaking.

MR WALKER:   That is one purpose ‑ ‑ ‑

KIEFEL J:   But that is a discretionary matter.  It might be a very strong discretionary matter, but that is all it is.

MR WALKER:   Quite so, not in that sense jurisdictional, no.

KIEFEL J:   But if we take away the undertaking and the notion that a freezing order is not an interlocutory injunction, is not the question then what is the difference in principle between there being no judgment in an international matter, in a foreign matter and no judgment in a domestic matter?

MR WALKER:   Absolutely.  Now, the difference – the first difference ‑ ‑ ‑

KIEFEL J:   What is the answer?

MR WALKER:   I am sorry, I interrupted your Honour, I do apologise.

KIEFEL J:   No, no – if the question is, what is the difference in principle for present purposes between there being no judgment in a foreign matter and a domestic matter, what is the answer?

MR WALKER:   That is the heart of the case and let me try and compress a lot into a little as follows.  This is why I was labouring the point about contingency, which we submit may have been misunderstood in the way we use it.  Of course there is the contingency that in domestic proceedings which have been commenced in the Supreme Court and in which an interlocutory injunction is sought, or a freezing order is sought, it matters not which for present purposes – of course there is a contingency that the plaintiff will lose the case in which case, upon that contingency, there will be nothing to be vindicated that has been temporarily protected of a proprietary sense, for example, for the interlocutory injunction, and there will be no need to frustrate – to prevent the frustration of court processes of execution of judgment, because there will be no judgment in the latter case.

That contingency is what I call the banal contingency which is true of all orders which are made knowingly against the risk – that is, the contingency – that it will turn out they were not necessary.  It is because we do not know the future and it is not appropriate at the so‑called interlocutory or early stage just to act as if you can tell the future that the risk is knowingly undertaking – the contingency is knowingly engaged for the purposes of the administration of justice.  That involves, of course, the weighing – caught in particular circumstances of a case – and the discretionary issues, such as adequacy of undertaking and the like, to which reference has already been sufficiently made.

We are talking about a different kind and level of contingency in this case.  In the ordinary case, the processes of the court have been engaged and require to be protected against a number of things, that is, against phenomena which have attracted different descriptions.  They tend to overlap.  One is abuse of process.  Another is so‑called unconscionable dealing.  There are others, such as breach of contract, when it comes to within the Federation, matters that might give rise to anti‑suit injunction, and the list can go on. 

For present purposes, the language which has been used in this Court to explain that in principle the jurisdiction to grant freezing orders – and it has developed over the years – that language is properly language to be seen as evincing a determination that the administration of justice will not be deficient by reason of lacking the capacity to protect its processes from either defeat or frustration.

Now, the difference ‑ to answer Justice Kiefel’s question – the difference then between this kind of case and the ordinary case that I have been hypothesising is that in this case no process of the court has been engaged.  There is and can be no litigation in the Supreme Court because there is another quite different and far more profound contingency in question, namely, whether there ever will be what I will call a “cause of action”.  It may or may not be technically a cause of action.  Once upon a time it would have been, that is, at common law, the action on a foreign judgment. 

Now, it is a statutory claim for registration and enforcement under the Commonwealth Act.  The difference probably does not matter for present purposes.  But, unlike the ordinary case where the risk or contingency that the plaintiff will not win is of course just part of the overall consideration of the application for interlocutory injunction or freezing order, in this case, that is not the contingency that matters.  There is an anterior and fundamental contingency, namely, whether or not there will ever be the occasion to invoke this Court’s jurisdiction.  Now, the only jurisdiction that which stands by analogue to be compared with the substantive jurisdiction in a local case against a defendant is the statutory jurisdiction to enforce a foreign judgment.

KIEFEL J:   This is simply to deny, on your argument, the prospect that there may be matters concerning the administration of justice.

MR WALKER:   It does not deny.  In fact, it rather embraces and emphasises that that all lies in prospect.  The ordinary case, with the ordinary risk or contingency, is one where the court’s processes have already been engaged, the case has commenced.  Now, there are exceptions that prove that rule, I will come to them later.  But that is the ordinary case. 

The plaintiff has sued the defendant for damages, has yet to make good any of the things that need to be proved to get the judgment, but has sued.  The court’s process is engaged.  The defendant makes moves of a most suspicious kind suggesting the classic judgment proofing manoeuvres and deceptions.  The Mareva letter before action gets a dusty response, the freezing order is sought, that is the conventional and orthodox case in which the principles adumbrated in this Court, as I say, slightly changing over the years but with a constant theme, those principles are attracted.

The constant theme, of course, is that this is a power – inherent, implied, incidental, reasonably necessary – to protect the very same court’s processes which have been put in train.  That last phrase is a very important one and I will be drawing attention in the cases to why it cannot be regarded as either an afterthought or as an unnecessary qualification.  There are, as I say, exceptions that prove the rule, to which we will come.  But that, in our submission, stands in stark contrast to what obtains in this case where there is – to embrace the language that Justice Kiefel has raised with me – a mere prospect, a mere prospect that the processes of this Court will ever be engaged in a claim by the appellant or by the respondent against the appellant. 

We know that that will never be the contractual and related commercial dispute which is being litigated in Singapore.  We know that it will only ever be the possibility of a “money judgment”, to use the statutory language, resulting from a successful outcome to the Singapore proceedings, and being an application to register and then enforce that money judgment in the Supreme Court of Western Australia. 

Now, that is a power or jurisdiction to settle or contribute to the settlement of a controversy between these parties, which has not been engaged, which may never come to exist.  It is as if, in a purely domestic case, a party came to the court and said “I want a freezing order because although they have not yet done it and they may yet repent, the opposing party, rogues as they are, are not only likely to breach a contract six months from now, but they are likely to squirrel away resources so I will never get them”.

The response of the court in that case would be to say, unless you have a true case of anticipatory breach, this court has no jurisdiction to entertain something which is not a controversy between you.  On your own showing, they have not breached the contract, and they may yet repent.  Therefore, a fortiori, we have no power to grant a remedy by way of freezing order. 

Now, no analogies are perfect, but doing the best we can, that illustrates the fundamental difference between this case and the case that we submit is too glibly, in the submissions against us, suggested to provide a well‑established analogue, or near analogue, for what was granted in this case.

FRENCH CJ:   It seems a long way away from the context of a statutory jurisdiction to enable enforcement of foreign judgments from a recognised court.  The imperfection of the analogy seems to reside in context.

MR WALKER:   Your Honour, yes, is the short answer.  I am trying to throw up that there is a critical threshold point about whether there is a jurisdiction of the court engaged ‑ ‑ ‑

FRENCH CJ:   It is an illogical argument.

MR WALKER:  ‑ ‑ ‑ calling for the protective power. In all the cases to date, subject to the exceptions that prove the rule, in all the cases to date, you can always see the invoked jurisdiction requiring for its – I will call it efficacy – to be protected against what I will call abuses, threatened or actual. That is why the example I gave which, of course, is a remote example - it is purely domestic - of the person who has not got a cause of action but for perfectly good reason fears chicanery, neither has – neither can invoke the jurisdiction of the court to talk about what has not yet happened, nor, of course, could invoke from the court a freezing order power under Order 52A, the other parts, the domestic parts that we do not object to – could not, of course, appeal to those provisions to say, give me a freezing order in case they breach the contract upon which I will then sue them, and I say with sufficient prospects of success to justify with all the other factors that have to be considered granting a freezing order.

That could be uttered, I suppose, quite attractively, in terms of commercial grievance and it could also be uttered quite attractively in terms of, your Honours, you can see, coming up, the slow motion car crash of this commercial villain, clearing the decks for a commercial dispute that has not yet happened but they anticipate.

FRENCH CJ:   Is the framework of discourse prevention of abuses, or is it a larger framework ‑ ‑ ‑

MR WALKER:   It is larger ‑ ‑ ‑

FRENCH CJ:   ‑ ‑ ‑ of making effective the exercise of the jurisdiction.

MR WALKER:   It is larger.  Preventing abuses very largely overlaps with but has, of course, aspects which are not the same.  This is focusing, in particular, on that protective element which seeks to ensure that justice is not administered in vain, by reference to circumstances which are such as to call for what I am going to call generally disapprobation.  Justice can be administered in vain because the defendant is not worth a parting shot or the insurance policy does not respond, for example. 

The very important protestations in enunciation of principle that say that Mareva or freezing jurisdiction is not to be used to give an advantage of a security kind, where the world and circumstances leave you bare, need only be noted to make good the proposition that the circumstance against which there needs to be protection has to have, as I say, this nefarious or disapprobated form to it.

So my first proposition is one to which the questions to move, with respect, have been directed, namely, if inherent jurisdiction is a limit of what the order under the Supreme Court Act may authorise, what does the inherent jurisdiction permit?  That raises, of course, the question of how does a case of the present kind, where there has been no engagement of any jurisdiction of the Supreme Court, either for the substantive commercial dispute or for the substantive judgment registration matter, how does that place the case doctrinally against what I might call the orthodox case, be it with a foreign element or completely domestic.  So, that is proposition one.

Proposition two is this. Section 17 of the Foreign Judgments Act has been raised.  Perhaps it is convenient to go to it immediately.  It is in tab 3 of the three volume book of authorities.  I suppose the first thing to point out is its end, subsection (2), which leaves possible the making of rules under the Supreme Court Act, not surprisingly.  Going to subsection (1) - which I will not read - your Honours see that the familiar phrase “all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act” is the basic description of the extent of the rule‑making power.  There are none of the particular examples – non‑exhaustive examples – that follow in paragraphs (a) to (e), to which I want to draw any particular attention one way or the other in the argument.

Those rules, of course, contemplated to be made by section 17 by what is called an authority which will include the Supreme Court of Western Australia, are legislative instruments within the meaning of the Legislative Instruments Act 2003 (Cth). That is because we submit they are of a legislative character, which one finds as the defining phrase in section 5(1)(a), explanation non‑exhaustively being given of how that character may appear by subsection (2), and we submit that a number of those possibilities is true of Order 52A and its relevant parts authorising the grant of a power to restrain in particular dealings with property in this State.

Now, we know by reason of section 9 that State courts, the Supreme Court, are not within section 9’s removal from that category of Rules of Court, and so it is under this Act that that may be compared with what applies to Federal Courts which have their specific statutory reference to disallowance – so it is under this Act that what is called in the heading of Part 5 “Parliamentary scrutiny of legislative instruments” is stipulated and it requires tabling.  This is not a matter which is something intramural of the Houses not to be litigated.  It is not a matter calling for consideration of Project Blue Sky considerations.  There is express consequence stipulated by section 38(3) by reason of the rules not having been laid before the House.

So that we start – this is not, as it were, an argument of the highest of conceptual levels, but we start by saying if it were made – which we dispute, of course – under section 17, then it did not last long, and so it was not available as a section 17 supported rule to authorise what happened in this case.  That is all I want to say about proposition 2 – that is all I want to say about proposition 3, I am sorry.

Can I go back to proposition 2, which is one, as your Honours have seen in our written submission, where reference must be made to the – if your Honours would forgive me - your Honours, in proposition 2 in our outline, I wonder if you would be good enough, with my apologies, to note that the references to our submissions should also include paragraph 35.  I am sorry about that. 

The point is that the Foreign Judgments Act, embracing, as I say, the possibility that it was the source of power to make these rules – I do not think it was actually used, the Foreign Judgments Act does not by its section 17 and that familiar rule‑making power language give the rule makers the capacity to supplement by improvement, by adding point to or enhancing supposed advantages of the scheme otherwise provided by the Act.

The point was made – I think I was about to make the slip of saying pithily made – by Justice Isaacs in Carbines v Powell (1925) 36 CLR 88. We have selected from a rather longer passage his quotation of Mr Justice Barton to which we have drawn attention in paragraph 35 of our written submissions. The importance of the principle, of course, means that primary and decisive attention has to be given to the scheme of the Foreign Judgments Act and what it permits to be done and, in particular, where something is not contemplated by or permitted to be done by the Foreign Judgments Act, it cannot be the subject of a value judgment or selection by State rule makers to improve the scheme.  That is neither necessary nor convenient within the relevant sense, and when one sees certain cardinal elements of this scheme, the notion of there being ‑ ‑ ‑

FRENCH CJ:   Mere silence in conferring a jurisdiction does not preclude the application of the rules of the court on which the jurisdiction is conferred.

MR WALKER:   Absolutely not.

FRENCH CJ:   For example, a jurisdiction to hear and determine actions for misleading or deceptive conduct picks up all of the – via 79, all the rules of the relevant court upon which that jurisdiction is conferred.

MR WALKER:   Quite.

FRENCH CJ:   So I am just wondering what is the point of distinction here?  Is there is something else in the FJA?

MR WALKER:   No, I am now not attending to a question to which section 79 of the Judiciary Act can speak, but rather to the ‑ ‑ ‑

FRENCH CJ:   No, when you talk of inconsistency ‑ ‑ ‑

MR WALKER:   Not yet.  I am sorry, your Honours, I am not to the 109 point yet.  I am now just attending to an argument about section 17 having authorised the making of these rules, because that is an argument put against us.  Now, I started, as I say, at not a particularly grand level by simply saying, well, even if that were true, those rules as such only lasted until six sitting days after they were made.  Forget that – not forget it, but I mean I am moving away from that.  I am coming to a rather more heady point to say that section 17 in any event could not have authorised such rules to be made.

I start by saying that is because the rule‑making power in using the expression to which I have drawn attention requires the limit to be observed of the Act to which those rules must be subserving.  In other words, the rules authorised to be made under such a power do not permit the alteration of the lineaments of the statutory scheme in question or the addition or, for that matter, the detraction of rights and obligations, powers and prerequisites stipulated by the Act. 

Then we come to the point, which I accept will need to be confronted by us in our section 109 argument as well, which I am manfully trying not to blur into at the moment.  I have got enough separate compartments.  Noting that, of course, this will also be part of 109, let me then confront what the Chief Justice has raised with me.  Are these speaking silences of a kind where you can sensibly say that a rule granting a power to make such orders is in the face of or outside the limits seen in the statutory scheme?  I accept that is the target of this part of my argument.

KIEFEL J:   But is the Act entirely silent, because section 6 in its provision that a foreign judgment has the same force and effect when registered might be taken to accept that courts will be concerned to enforce their judgments.  Indeed, that will be obvious given the object that registration should be efficacious.  If you read section 6 then with section 17, do you get something approximating an authorisation, or at least a tacit acceptance that these are the kinds of rules that ‑ ‑ ‑

MR WALKER:   No, but I ‑ ‑ ‑

KIEFEL J:   It might be split into two parts.  Section 17 on one view might be concerned only with rules relating to registration as such.  Section 6 though must to an extent accept that courts will be concerned to enforce judgment and therefore ‑ ‑ ‑

MR WALKER:   Yes, yes.  The first thing is, yes, I have to deal with that and seek to dissuade your Honours of it because we say in those sections 6 and 17 ‑ ‑ ‑

KIEFEL J:   A question is whether section 17 is to be read with section 6 to give some sort of authorisation.

MR WALKER:   The next thing is that 17 does compel a reading with all the rest of the Act, that is because it talks about all matters – so you have the comprehensiveness at the outset:

all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act –

That is the critical phrase.  What follows, introduced by the word “including”, may be informative, and it just occurs to me in considering Justice Kiefel’s question, the first of them I think is informative of one point at least, not necessarily in my favour, but it is informative.  But it is the general words that matter, and they could not be more comprehensive. 

My point, by quoting Sir Isaac Isaacs, is that has long been understood as not being a mandate substantively to alter the scheme of the Act, that which is permitted or prohibited by the Act, that which is granted or, we submit, withheld by the Act.  I use the word “scheme”.  I accept it is tendentious, but I submit that it is accurate.  This is, on any view of it, a scheme that may not be a perfect scheme, but it exhibits an organising intelligence to address a topic in all ways that appear appropriate to Parliament.

Now, section 17(1)(a) makes explicit reference.  It stipulates that included within that rule‑making power is provision for the giving of security of costs.  So there is something that can affect somebody in their pocket and it is a power given.  It is not very remarkable.  It does not take one very far because it exactly resembles an order for security for costs that a collection of statutes and rules provide in other kinds of cases, and reflects the notion that a defendant may be as much vexed and in need of satisfaction by a compensatory costs order by litigation under this Act, as they might be by any litigation.

Paragraph (b) is of a kind which is a paradigm, one would think, about court rules necessary and convenient within the relevant sense for any substantive head of jurisdiction.  Paragraph (c), in a system characterised by procedural fairness is equally of that kind and traditionally is found in all Rules of Court as well, as we know, in some statutes. 

Paragraph (d) is important because, in its absence, it may well have been regarded as being a matter covered by statute, and that again is a matter traditionally and in an unexceptional and unexceptionable way a kind of topic dealt with by court rules.  Paragraph (e) is, as it were, a subset of (b) and in particular deals with the problem of what I might call foreign evidence, and no doubt has to do with the reception of either expert or official material concerning another court’s court system.

Now, there is every reason then for me to have to confront the proposition that section 17 is an example of rule‑making power, as one might imagine, of an ordinary kind; I accept that. The challenge then is first for us to canvass the Act to see whether there is anything positive in it that is explicit or express in it to which that rule‑making power might be attached so as to justify the relevant parts of Order 52A.

Justice Kiefel has raised with me section 6, to which I will come, but there is another side to the coin.  There is also the possibility, can I show from considering the Act as a whole that there is a scheme to it which makes, as it were, what might be called its silences, omissions or withholdings, eloquent and effectively stipulations about what is and is not available and, this being an important argument for section 109 as well, I will try and deal with it just once in terms of going to the statute.

FRENCH CJ:   But you are dealing with two questions, are you - the question of inconsistency under section 17, and the question of necessary or convenient may raise different issues.

MR WALKER:   They are different issues ‑ ‑ ‑

FRENCH CJ:   Overlapping, but ‑ ‑ ‑

MR WALKER:   They are conceptually utterly distinct but they require the same material to be considered and partly at least, in the same vein.

GAGELER J:   Mr Walker, in taking us to paragraphs (a) to (e), were you seeking to make an ejusdem generis argument?

MR WALKER:   No.  Your Honour ‑ ‑ ‑

GAGELER J:   If the answer is no, that is sufficient for my purposes.

MR WALKER:   Well, let me reconsider that as follows.  I confess if I had not made the scheme, including what is not there, good by what I will call the substantive provisions, it would be unlikely that the tail would wag the dog; that is the first thing. 

The second thing is that the genus is not particularly informative because it includes matters, either prior to application, that is the way in which you prove things or simultaneous with application, as well as the hearing and decision of an application as well, obviously, as the enforcement of matters after an application has been heard and determined, such as security for costs, et cetera, and my brief going through those paragraphs rather suggested that if there is any genus, it is that they are rules of a common kind to be found in Rules of Court where there is a litigated application to be made of an adversarial kind. Certainly, no comfort can be obtained by those against us from the way in which the non‑exhaustive examples are expressed because none of them comes anywhere near authorising the relevant parts of Order 52A.

KIEFEL J:   May I just take up, so I am clear about what you are saying about (a) to (e) and in connection with your submission more generally about approaching the Act as a scheme, are you saying that the rule‑making power which is authorised under section 17 is limited to the context of registration itself.

MR WALKER:   No, I am sorry.  I forgot to, your Honour, raise that earlier.  No, it is not just registration.  It is all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act.  Registration is front and centre, is perhaps the most important part of this Act but it is not all of it.

KIEFEL J:   But it could extend to enforcement.

MR WALKER:   Yes, yes. Yes, and I accept entirely that that is right at the heart of the matter about my argument concerning the scheme.

FRENCH CJ:   You may have made this clear before - your 109 argument stands or falls with your inconsistency under section 17 argument?  I mean, if it is not inconsistent with this Act, within the meaning of section 17, could you succeed in a 109 argument?

MR WALKER:   I am sorry, your Honours.  I am just baulking really at describing my argument about section 17 as an inconsistency argument.  I am saying that these are not rules that could be made under section 17.

KIEFEL J:   But the same point that the Chief Justice is referring to arises, does it not?

MR WALKER:   Yes.

KIEFEL J:   If it is authorised under section 17, there is not any section 109 point.

MR WALKER:   No, quite so.  I hope we have made that ‑ ‑ ‑

FRENCH CJ:   They cannot be inconsistent with the Act.  That is the first thing and, secondly, if not inconsistent, they must also pass the test of being necessary or convenient.

MR WALKER:   Yes, and that I do entirely accept.  It goes, I suppose, without saying ‑ I apologise for not appreciating this earlier – that nothing will be necessary or convenient within the meaning of section 17 if it is inconsistent with the Act.

FRENCH CJ:   Well, there are two criteria.

MR WALKER:   I accept that.  My 109 point is, of course, more than inconsistency with section 17 or under section 17 ‑ ‑ ‑

FRENCH CJ:   No, it is inconsistent with this Act.  Yes.

MR WALKER:   So, I turn to the scheme of the Act, for the purpose of the section 17 argument.  In section 5, conveniently for my argument, one sees one of the foundation stones of what I will call the scheme - it is on the basis of reciprocity of treatment and it starts by referring to what we have called the executive satisfaction of reciprocity and you see furthermore that it is satisfaction which is by no means black letter or formalistic. 

It is called substantial reciprocity and it is the treatment will be assured in relation to the enforcement in the other country and we are starting section 5 with money judgments. That, as your Honours know, has happened in relation to Singapore, the Foreign Judgments Regulations 1992, in clause 3, directs you to the schedule where item 24 has the relevant courts of the Republic of Singapore, courts to which this part, Part 2 of the Act, extends in relation to money judgments.

One sees that there are certain stipulations in the Act about what kind of enforceable money judgments this part, which is the engine room of the Act, applies in subsection (4) and among other things it is something that is final and conclusive.  So it comes from proceedings which have an outcome and are complete.  That is subject to the kind of qualification with which we are familiar in our system, see subsection (5).

Then we come to subsection (6). Now, subsection (6) is important for our case because I am going to try and persuade your Honours that it is the non‑money judgments that actually provide the more acute test of the claims of these parts of Order 52A as against the scheme of this Act. Let me explain. Non‑money judgments actually mercifully just mean that. They are the ones that are not money judgments. Money judgments also mercifully means that, it is judgments under which money is to be paid. It is not orders or judgments under which money – by reason of which money may come to be paid because that obviously would include anything for which a fine or other financial remedy may come upon contempt.

So you have a familiar judgment in debt, for example, or damages on the one hand and then we have what are properly called injunctions and those things which are loosely called injunctions and those things which are more precisely called orders, for example, freezing orders on the other hand.

Now, subsection (7) requires, no doubt bearing in mind what even in our own system would impress as the variety of non‑money judgments that might be imagined, calls for specific stipulation in the regulation.  Of course, as you know, there is no such specific prescription in relation to the courts of Singapore which is why no money judgment has been the subject of the subsection (6) - no non‑money judgment of Singapore has been the subject of a subsection (6) state of satisfaction by the Governor‑General and, hence, of any regulations under subsection (7). 

One then sees that there are temporal limits which recognise what I will call, as it were, a transitional period.  In our submission, that is another indicator of a scheme that one says after this time a new regime is operating.  One sees another carve‑out for judgments of what are called inferior courts and then subsection (10), a carve‑out for trans‑Tasman amity. 

Section 6 then, having – section 5 having singled out those judgments to which the scheme of the Act speaks, section 6 then, as it were, lays out the method and effect.  So a judgment creditor under subsection (1) may apply.  That is the, if you like, substantive jurisdiction in mere prospect in our case.  It is that application which is in mere prospect.  It may never happen, not like a cause of action which has a proof.  What one applies for is to have the judgment registered. 

Under subsection (3), subject to significantly not only the Act but to proof of the matters prescribed by applicable Rules of Court, if the application is made then the order of registration must follow.  Now, your Honours will appreciate that the Rules of Court, of Supreme Courts, as I say, are scrutinised in the Commonwealth Parliament by reason of the provisions to which I have already drawn attention.  Rules of the Federal Court are scrutinised by reason of provisions of the Federal Court Act.  So that when Parliament says it is subject to proof of the matters prescribed by the applicable Rules of Court, it is not buying a pig in a poke.  It will see chapter and verse of those rules - Parliament will see them or the Houses will see them. 

Under subsection (6) two exceptions are provided which show the potential for adversarial contest at the stage of an application for registration.  If it has been wholly satisfied or alternatively it could not be enforced in a country of the original court, that gives rise to considerations, for example, of stays and the like in the country of the original court. 

Then under subsection (7) the heart of the scheme is provided because subject to others to which we have to come, for the purposes of enforcement, a registered judgment has the same force and effect, proceedings may be taken on it, the amount carries interest and perhaps critically the registering court has the same control over the enforcement of the registered judgment as if it had originally been given in that court and the regime in question is prescribed in part by the reference to the date of registration as being – supplying the regime which applies to those matters. 

Now, right at the heart of the matter then there is these drastic and critical matters brought about by a registrable judgment, my expression, not the Act’s.  We know that in order to be registrable it has to be final and enforceable and that there are provisions even made about appeal.  We know that none of that applies, obviously, to a case such as the present.  Subsection (7), as I say, is subject to subsection (9) – section 6(7) is subject to sections 7 and 14. 

I can come, I think, directly to section 7.  In subsection (2), one sees the possibility of matters having moved on or changed in what I will call the original country.  That is one of the things to which subparagraph 7(2)(a)(i) contemplates – a judgment may have ceased to be, for example, enforceable or it may have been satisfied.  Then there are other matters including, you will see, section 7(2)(a)(iv), opening the possibility of an inquiry as to jurisdiction in the country of the original court. 

There are other matters which are familiar in terms of a regard for the integrity of the administration of justice, such as subparagraph (vi) and, for that matter, subparagraph (v).  One sees that there is a catch‑all, contrary to public policy, in subparagraph (xi), excluding our New Zealand friends.  Your Honours, in our submission – I am sorry, I do not need to stay to put any argument about the following couple of provisions – section 8, section 9, section 10 is important:

No proceedings for the recovery of an amount payable under a judgment to which this Part applies, other than proceedings by way of registration of the judgment, are to be entertained by a court having jurisdiction in Australia.

In our submission, those provisions of section 10(1) are an appropriate cap, if you like, for those parts of Part 2 which show the regime which is to apply in relation to judgments, starting with satisfaction about reciprocity. 

Now, one of my points, of course, is this.  Unless one were to consider the silence about what happens in relation to countries where there is no reciprocity, unless one were to consider this as a scheme, then the absurdity would exist of the requirement for substantial reciprocity being quite optional.  All it would do would be to make available this statute and all other pre‑existing methods would continue.  In our submission, the phrase “a judgment to which this part applies” in section 10(1), includes judgments about which the Governor‑General makes that judgment, that is, is there substantial reciprocity or not?

We then come to Part 3 which, significantly, starts with regulation of cases that have fallen outside Part 2 for one of the several reasons to which we have drawn attention in talking about Part 2.  In our submission, the inroads represented into what would have been a former common law position by section 11 are again such as to indicate that reciprocity is indeed a foundation of the method by which certainly money judgments and also, importantly, non‑money judgments are to be capable of being enforced.

Section 13 complements section 10 so as in a case where there is satisfaction by the Governor‑General of treatment being substantially less favourable, then there can be the application of the special provisions of it and one sees that they, subject to regulations expressly authorised, amount to a bar on enforcement proceedings. 

Then we come to Part 4, the transitionals.  Section 18 looks to a temporary case – it is in transitionals – in relation to a judgment of the court of a country is not mentioned in any section 5 regulation and provides that it may be registered.  Subsection (2) provides specifically for regulations to alter that and subsection (3) says of that “may be registered” – subsection (1) – subsection (3) says that that is an effect that “ceases to be in force” within a relatively short time – a true transitional provision – a run‑off period to what we submit is plainly a new regime.

Section 19 points to State or Territory law – or where a State or Territory law provides for enforcement and says that the Act “does not apply” to judgments registered before the commencement of the Act or under section 18 – again, closed period run‑offs. 

In our submission, one then asks where in that scheme which prevents an approach to the Australian court until there is – to give the shorthand – final foreign judgment and, furthermore, a final foreign judgment from a court whose political system has certain characteristics appreciated by our executive, where in that scheme does one find the notion of anticipating that event by making an application before there is any such judgment, in particular, given the careful attention to non‑money judgments and the expectation that there may be differential executive recognition of reciprocity in relation to them compared to that obtaining in relation to money judgments, where is there anything in that scheme to contemplate the complete sidestep involved in saying I could never – one could never register or enforce a Singaporean freezing order against these shares considered to be located in Western Australia.  That is a non‑money judgment for which there is no statutory power to register or enforce.

But I will give you exactly the same thing, that is, I will give you the contempt power of a Western Australian Supreme Court order.  It is exactly the same because the whole purpose of this scheme is to assimilate them entirely.

FRENCH CJ:   The registration of a registrable judgment is mandatory, is it not, subject to satisfaction of the conditions whereas the making of a freezing order according to the Rules of Court involves all manner of discretion. 

MR WALKER:   Absolutely, absolutely.  But I am talking about power, of course.  It is not an answer to power.

FRENCH CJ:   But you are using the argument that there is not – one could not register a Singaporean freezing order ‑ ‑ ‑

MR WALKER:   That is right.    

FRENCH CJ:   ‑ ‑ ‑ to suggest some inconsistency between that and a Rule of Court which will allow you to make a freezing order in the exercise of discretion in the usual way.

MR WALKER:   I am doing it at, what might be called, the effective substance or functional level, namely – and the Act throws up that it is exact.  There is no haziness about this.  The Act says that if there were a Singaporean non‑money judgment and Singapore had been prescribed, upon the basis of reciprocity, for the registration enforcement of its non‑money judgments, then upon a freezing order being made in Singapore, it would be registered here and enforced as if it had been made here.  That is the purpose of the scheme. 

We know that is now true of Singapore because, presumably, no one has set out to either investigate, consider, or there has been an adverse judgment in relation to reciprocity.  There has been no such prescription.  It does not matter which of those is true, there has been no such prescription.  But, it is said, there is a power granted by a rule which, on the argument I am presently labouring with, is authorised by section 17 of this Act.  There is a power made under the rule to provide for the West Australian court directly to grant that which could not reflect by registration under this Act had it been granted by Singapore. 

That, in our submission, is, to put it mildly, surprising bearing in mind that there is no suggestion that the court here is protecting – in the sense already described – the exercise of a substantive jurisdiction to quell the commercial controversy between these parties, that being wholly conducted in Singapore.

KIEFEL J:   But are you talking about a West Australian court making an order in aid of the Singapore proceedings?

MR WALKER:   In a sense, the whole of this case is about when can a West Australian court aid Singaporean proceedings - that expression is too general to provide, as it were, one only answer.

KIEFEL J:   But in this notion of reciprocity that you have just discussed, is that an underlying premise for it?

MR WALKER:   That is an express premise of the statute.  That is all.  I am not suggesting it is a premise of the common law.  It is an express premise of the statute.  Without prescription, there cannot be registration.  Without the Governor‑General’s satisfaction about reciprocity, there cannot be prescription.  There can be differential prescription – money judgments, yes; non‑money judgments, no.  That is what has happened in Singapore.

This is a case where there is no doubt that the relief is of a kind that, if granted by Singapore, could not be the subject of an application – or the application would fail, I should say, must fail. No discretions would be involved. It is said against us – and has been held against us – in effect, that directly by invoking the inherent jurisdiction as providing the content of that which section 17 authorises to be made in the form of Order 52A – directly by invoking the inherent jurisdiction of Western Australia, you may achieve that which the scheme of this Act expressly denies had Singapore made an order and the Singaporean litigant come to Australia and said, help me with this order in relation to its effect in Australia which is, after all, the whole purpose of the Foreign Judgments Act in listing the enforcement mechanisms, the compulsion of law in this country in aid of – to go back to Justice Kiefel’s question – the administration of justice in a foreign jurisdiction.

KIEFEL J:   I think it might be a bit narrower than that in aid of the proceedings in Singapore because at the point where this Act comes into play, as you have said, you are only concerned with what occurs in Australia after registration is the distinction.

MR WALKER:   Yes, that is right.  My point, apropos that, is we have shown, both by what is said and what is not stipulated for, that the Commonwealth statute carries no contemplation whatever of something occurring in an Australian court before there is an application under the Act to the Australian court.  Other things happen before there is an application but they are not in proceedings.  They are in executive minutes to the Governor‑General.  They are in the promulgation of regulations. 

But, in relation to the proceedings, nothing in the statute – positively or by implication – contemplates anything being done before an application.  What has been done to us in this case is well before any application and in circumstances where no one can give an undertaking that there will be an application except in the contingent sense to which I have already referred.

If I ever obtain a Singaporean judgment, then I promise I will then make an application.  That is completely different from the position that obtains in the urgent duty list where a Mareva order is sought as a pleading is being cobbled together and originating process is being made ready.  Even then there can and would be questions about when the Mareva should come into effect but undertakings as to the exception that proves the rule, to which I made reference several times earlier, if the stipulation in such a case - that is a domestic case, the Mareva order - it is a stipulation that there be an undertaking to the court to commence the proceedings. 

I am going to come to some remarks in this Court’s reasons which are apropos that matter, but, in our submission, it underlines the fundamental need to have proceedings in the court – I will call it actual or imminent – in order for there ever to be incidentally, inherently, or by implication a power to restrain somebody in the otherwise free disposition of their own property under a freezing order.

GAGELER J:   You add the word “imminent” to the word “actual”.

MR WALKER:   That was just to cover the case of what I have described as the exception that proves the rule where a freezing order is sought in circumstances justifying such urgency but the substantive proceedings say alleging a breach of contract or the debt or whatever have not yet commenced.  That has been known in practice.  I am not concerned to say that is wrong even if it may require occasionally eyebrows to be raised or, at least, frowns to be administered so as to test the case.  It has usually been met, as your Honours know, by extracting an undertaking to commence the proceedings.  That reflects age‑old practice with true interlocutory injunctions. 

GAGELER J:   I am just trying to understand your argument.  You are not saying that it is necessary to have an actual application under section 6 for ‑ ‑ ‑

MR WALKER:   I am, actually.

GAGELER J:   You are.

MR WALKER:   I am, actually.

GAGELER J:   I thought you had to.

MR WALKER:   No, I am certainly saying that.  I am certainly saying that.  The idea of an imminent application is a nonsense, in our submission.  Nothing could ever be urgent in this.  There are fully‑contested proceedings in Singapore.  There is no urgency about whatever is happening there.

NETTLE J:   But you are not going back on your imminent exception, are you?

MR WALKER:   No, no.  That is not about this case.  That is about the ordinary – I thought I had used the word several times – “domestic” case when a freezing order is sought in circumstances so urgent that you have not yet started your debt claim or your breach of contract claim.  

NETTLE J:   It would be a comparable imminent exception here too, would it not, surely?  By imminent, I mean imminent, not down the track when and if maybe we get a judgment from the Court of Singapore but ‑ ‑ ‑

MR WALKER:   With respect, yes, your Honour.  I am trying to imagine one.  This present case certainly does not throw it up.  It is, I suspect, years away.  But it certainly does not throw it up.  I am doing the best I can.  To Justice Nettle’s question, I would say this, I suppose.  The final judgment, within the meaning of the Act, has been obtained in Singapore.  There are no stays or appeals or, perhaps, there is a stay that is going to expire imminently. 

The would‑be plaintiff has intelligence of shenanigans in Australia.  There is nothing except the plaintiff accomplishing the deed to prevent the commencement of an application under the Act.  Then there would be a tolerable analogy with the urgent domestic case to which I have been referring which is a relatively commonplace position, both for true interlocutory injunctions as well as for freezing orders.

FRENCH CJ:   Is this really an argument about inconsistency for the purposes of the section 17 power or really an argument about the scope and subject matter of the statute and you say these orders fall outside the scope and subject matter of the statute which is concerned with judgments, imminent or real ‑ ‑ ‑

MR WALKER:   Yes, that is right.

FRENCH CJ:   ‑ ‑ ‑ and their registration and enforcement.

MR WALKER:   Yes.  It is not actually concerned with imminent judgments at all but by using the language of “inherent”, “implied”, “incidental”, “reasonably necessary”, and by being concerned with the protection of the administration of justice against the inefficacy of wrongful frustration then I am bound, I think, to accept the qualification to my earlier answer that I gave in answer to Justice Nettle.

It is true that one can imagine such a case obtaining.  Now, the test of it is then a person could give and a court could sensibly accept, indeed should extract, in such a case an undertaking to make the application.  Query, as I say, whether the Mareva, the freezing order, would have any – could have any – query should, discretionary, have any effect before the application is made, but that is a matter of detail.  It is not going to be ‑ ‑ ‑

FRENCH CJ:   Really the argument is this cannot be necessary and convenient because it falls outside the boundaries of what the Act is concerned with.

MR WALKER:   For section 17 purposes, this is simply not something that could be provided for by the rules.  If any rule could be imagined it would have to be for the truly imminent case about which an undertaking can be given.

FRENCH CJ:   I am just a bit concerned that we do not get unnecessarily tied up with notions of inconsistency if that is not what it is really about.

MR WALKER:   It is what I am about, that is that there is nothing in this Act which contemplates such an application, and the notion of there being a judgment for which an application can be made is inconsistent with there not being a judgment.

FRENCH CJ:   Well, the Act just does not deal with it.  That is your argument, is it not?

MR WALKER:   That is right.  I am going to have to turn this to a purpose as well for the inconsistency argument and, as I say, in our submission, and reciprocity or no reciprocity there is an inconsistency judgment, no judgment there is an inconsistency.  So that completes what I want to say about proposition 2 and I have dealt with proposition 3. 

Could I go back to the prospects to which I made reference in proposition 1 for the purposes of our proposition 4? That is one that accepts for the purposes of the argument that Order 52A, relevant parts thereof, were authorised to be made by the Supreme Court Act.  If that be so, we submit that Western Australian legislation would suffer a section 109 pro tanto invalidity because, for the reasons that I have touched on as I argued section 17 rule‑making power, such a provision would be inconsistent with what we call a complete scheme for Australian courts aiding the exercise of foreign administration of justice. 

We single out, for the reasons I hope we have already made clear, the reciprocity foundation of that scheme. One can see that there has been a legislated judgment that these court powers should not be available unless it goes in the other direction as well, and if Order 52A were regarded as authorised by the Supreme Court Act, it would be bereft of any such reciprocity requirement.

Furthermore, it would be so in relation to relief which, had it been granted by the Singapore court, could never have been the subject of an application under the Act whereby, in our submission, the odd result follows that had there been an application in Singapore and relief granted, no relief in this country. Had there been an application made in Singapore and relief refused, according to our opponents, relief possible to be granted in this Court. Of course, even worse, had no application been made in Singapore and therefore no relief in Singapore, the field is open, say our opponents, under Order 52A.

In our submission, that entirely undermines and runs counter to the evident and explicit legislated scheme that there be made available the processes of the Australian courts for the judgments of courts from countries where there is the reciprocity to which the statute refers.

KEANE J:   But is not the point that we are concerned with the processes of Australian courts and the jurisdiction to ensure that those processes are not frustrated?

MR WALKER:   That is right.

KEANE J:   If that is what we are concerned with, it does not matter that it is a statute that is aiding foreign judgments or a domestic statute.

MR WALKER:   Quite so.

KEANE J:   Because on any view we are concerned with the judicial power to protect the efficacy of Australian court processes.

MR WALKER:   Quite so, but the only court process in question that can be imagined is an application to register and to enforce a Singaporean money judgment.

KEANE J:   Sure.

MR WALKER:   That is the only process in Australia, so that is why I opened ‑ ‑ ‑

KEANE J:   Sure, and why then is it not the case that what has to be shown is a sufficient prospect that that will occur?  Even though there might not be an undertaking able to be given because of the circumstances that there has to be a judgment first, so if a judge is convinced that there is a sufficient likelihood that that will occur and that the processes that would then be put in train would be defeated if a freezing order were not made, why is not that an orthodox exercise of the power to protect Australian court processes against frustration?

MR WALKER:   It is completely unorthodox and anti‑orthodox for this reason.  There is no case which has ever held that there is jurisdiction to restrain somebody in dealings with their own property to protect the prospect of the enforcement of a judgment on a cause of action or claim that is not available to be sued on that lies in prospect in a double sense.  Will you ever be able to sue on it, and will you win if you do?  There has never been a case which has said if this person is behaving in such a fashion as to make it London to a brick that they are not going to honour their repayment obligation falling due six months from now, and when sued they will not be worth powder and shot. 

KEANE J:   But you are tapping in now – those points tap into the reasons why, even in a domestic case, one would require a very strong case to make an order – a freezing order – that has the effect of making a party who may be an unsecured creditor secure.

MR WALKER:   Secure, yes.  No, it goes much deeper than that, your Honour.  There is no case that has ever even entertained the idea that you can get that kind of relief before the person is in default, not before they have suffered final judgment but before they are even in default.  If they are a corporation, then we have receiverships, provisional liquidations and all the other protections, the existence and nature of which rather bespeak the unavailability of the phantom jurisdiction which I am referring to in order to answer Justice Keane’s question.

KIEFEL J:   But you are speaking of a position where no cause of action has arisen.  That is not the current case.

MR WALKER:   There is no cause of action arisen here.  I am attending to Justice Keane’s point – concentrate, if I may put it this way, his Honour says to me, on the Australian process in question, which we are very happy to do.  That is the application to an Australian court under the Foreign Judgments Act.  That cause of action or claim is not available until there is a judgment.  It is like, with all the usual caveats about analogies, somebody wanting to sue in debt before the debt has fallen due and default shown. 

It is like somebody saying there will be a breach of contract or I would say there is a very high prospect that there will be a breach of contract, leaving aside anticipatory breach - I mean, the substantive law of contract has tried to deal with this.  I do not need to distort it with remedial law.  It is not an anticipatory breach, and there is no cause of action.  You could not go to court and get either an injunction or damages.  Why should you be able to go to court to stop somebody spending money as they are entitled to?

Now, it does not matter how malevolently the person is, as it were, spending money on ice cream in order to deprive the creditor of full payment.  It does not matter.  You may have other - as I say, with corporations, you may have receiverships, you may have provisional liquidations, but with natural persons, you may not have anything and the law is none the worse for that. 

The notion that there can be a serious entertainment by a court of the prospect that somebody will breach a contract, or will be negligent, or will commit a breach of trust when they have not is, in our submission, so large and pregnant with possibilities that one would expect it to have been referred to in the authorities.  It never has been.

KIEFEL J:   The distinction I am a little confused with is there is a cause of action here that does not seem to be in dispute.  It founds the proceedings in the Singapore courts.  What you are talking about is whether there is a matter under the Foreign Judgments Act.

MR WALKER:   That is partly it, and of course, the federal jurisdiction being relevant ‑ ‑ ‑

KIEFEL J:   But that is the cause of action you were talking about, the one which founds a claim ‑ ‑ ‑

MR WALKER:   Under the Foreign Judgments Act, yes.  That is what I said earlier when I first used the expression “cause of action”.  It is not technically that.  It would have been at common law, is not under the statute, but ‑ ‑ ‑

KIEFEL J:   But whereas a freezing order in aid of prospective enforcement would have regard to the cause of action extant in the Singapore courts.

MR WALKER:   Yes, and I think with that qualification, as we understand the way – sorry, I should not say that.  We accept that if we are wrong about the availability of the power during a period before an application could be made – and for abundant caution I will say “well before” – if we are wrong about the availability of that power, then it must follow, I think, that evidence could be given, perhaps should be given, about the state of affairs in the Singaporean proceedings, and probably one would have thought what used to be called prima facie evidence of the plaintiff’s good claim or cause of action.  I accept all of that, and those are matters, the merits of which are going to be tried, if they are ever tried, in Singapore.  In that sense, that is why I answered yes to Justice Kiefel’s question.

However, we of course do not accept the premise – the only thing we do contest is the premise that there is and has ever been held previous to this case, power in an Australian court, superior court to grant a freezing order in advance of any substantive claim being possible to be made in that court.  That is what I am talking about, with the qualification I do not need to keep adding probably, except for the special and rule‑proving exception of the race to the register - imminent problem.  An undertaking can, as it were, treat the promise for the deed.

Now, it is for those reasons, to return to Justice Keane’s question, that far from being orthodox, there is a complete dis‑anchoring in the reasoning in the courts below of the matter because there has been treated, as it were, an amalgam of dispute resolution mechanism, part Singapore, part Western Australia, as being, as it were, the overall apparatus which of course has to have, it is supposed in the argument, a working part that prevents frustration of a hoped‑for eventual money judgment. 

But the Foreign Judgments Act, and not only it, everything to do with international public law, bespeaks the distinction between the sovereign jurisdictions.  They are not amalgamated and steps towards deemings in that regard require treating a special statute as seen by our relations with New Zealand.  There is nothing like that in existence for Singapore, and it is dealt with by the Foreign Judgments Act.

If there be a gap, it is a gap that can and should be filled by legislation, and it can and should, if perceived to be a gap, be attended to either by a rule‑making power added to section 17, or a substantive provision in relation to section 6.  That would no doubt be salutary because it could include as well the degree to which one court system can or should take notice, or have proved to its satisfaction what is occurring in another court system. 

Now, those are matters that lead themselves to so many arguable possibilities of policy, and invite really no possibility of black‑letter or sharp‑line legal determination, that they are par excellence for a parliament, not an ultimate court, to stipulate, which is why, in our submission, there is no call thrown up by this case for the court so signally to go beyond the limits that can be seen in the authorities.

I have to turn to those authorities, and I should before doing so make it clear that they are, as it were, a further part of my answer to Justice Keane’s question.  It is not orthodox because it has never previously been said that you can in anticipation of something that may never happen – and it cannot be the subject of a sensible undertaking to make happen – it has never previously been said that anything under the rubric of “inherent”, “implied”, “incidental”, “reasonably necessary” can get any footing at all; inherent, implied, incidental, reasonably necessary for what?  The answer always has to come back, as the dicta in this Court have consistently made clear, to the process of this Court put in train.

That is what we do not have here.  It is only if you meld Singapore and Australia and see them as all one administration of justice apparatus, then one can of course easily see an Australian power, as you would no doubt see a Japanese power or Mongolian power, as being incidental to the administration of justice in Singapore, but only if you, as it were, put them all together and say you are all involved in this endeavour with your endeavours severally for the common purpose, et cetera. 

There is no such doctrine, either as a matter of international public law – that is a matter for treaties – nor as a matter of our private international law no one can point to any such doctrine, nor has it been legislated, the Foreign Judgments Act, in any of the now invalidated State statutes, that is, invalidated by 109.

It is for those reasons, in our submission, that one is driven to the common law because, as I say, everyone says that the Supreme Court Act rule‑making power cannot have Order 52A and its relevant parts travelling beyond the inherent jurisdiction. It is for those reasons that one then goes to what this Court has said in relation to the jurisdiction.

Your Honours, for that purpose, could I take you to the early utterances which, in our submission, have by no means been wholly superseded, in Jackson v Sterling Industries 162 CLR 612, which is tab 21 in volume 2 of the bundle of authorities. Much of the reasoning is of course concerned with matters, as it were, peculiar to the Federal Court, although in the upshot, of course, tending rather to assimilate its position wholly to that of the Supreme Courts.

It is the reasons of Justice Deane that enjoy majority support, as you will see from page 616 in both the reasons of the Chief Justice and of Justices Wilson and Dawson.  At page 617, during the conspectus of the history, particularly in England and Wales, at about point 4 on that page, Justices Wilson and Dawson, referring to those British cases, say:

It was to be found –

that is, the broader rationale –

in the notion that the purpose of the Mareva injunction –

Your Honours appreciate that is now an anachronistic piece of nomenclature –

was to prevent the abuse of the process of the court –

and I want to emphasise, leaving aside the mildly anachronistic reference to “abuse of process”, the key is “the process of the court”.  It is the court considering the Mareva who has the process that is protecting against abuse.  The particular abuse is –

by the frustration of its remedies –

That means not its interlocutory or temporary or interim remedies, or Mareva remedies.  That is its substantive or final “on the merits” remedies.  That is where it began.  I accept that does not mean it is confined to that or stopped there; it is not a bad start for us.  There is then one of the several references your Honours will see in the reasoning in various of this Court’s cases to distance, as it were, intellectually, and legally/culturally between England and other British jurisdictions and us in relation to this matter.  In the next paragraph, commencing “However”, their Honours offer this rationale:

it is as much to be found in its inherent power as in any statutory power to grant such relief . . . Thus it was –

and they refer to the New South Wales Court of Appeal –

No relevant distinction is to be drawn between the inherent power of the Court and that bestowed by the section although, as the Court of Appeal pointed out, the section confirms the inherent power without increasing it.

That seems to be where we still are in relation to these parts of Order 52A and the Supreme Court Act (WA).  Then, emphatically, their Honours say at the foot of 617 –

One important result of viewing the Mareva injunction in this way is to emphasize the limits of the remedy.  Its use must be necessary –

Now, those are words of power or jurisdiction –

to prevent the abuse of the process of the court.

So there has to be a connection between the application made for the freezing order and process of the court, and it is to prevent the abuse.  If I can take your Honours then over to page 619, at the beginning of the second full paragraph, about point 3, “Be that as it may”, you will see

their Honours rebutting the proposition that the statutory or implied power extends to creating or enforcing rights:

in addition to those for the protection or enforcement of which the jurisdiction of the Court is invoked.

That is referring to the substantive controversy between the parties.  To repeat, we accept that, adjusted and adapted to our case that means the question of registering and enforcing a Singaporean money judgment.  That is the rights “for the protection or enforcement of which the jurisdiction of the Court is invoked”.

FRENCH CJ:   That might be a convenient moment, Mr Walker.  The Court will adjourn until 9.30 tomorrow morning for the welcome of Justices Nettle and Gordon, and 10.15 for the resumption of this matter.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 11 AUGUST 2015