PT Bayan Resources TBK v BCBC Singapore Pte Ltd - [2014] WASCA 178

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PT BAYAN RESOURCES TBK -v- BCBC SINGAPORE PTE LTD [2014] WASCA 178

CORAM: McLURE P
BUSS JA
MURPHY JA

HEARD: 11 & 12 MARCH 2014

DELIVERED : 25 SEPTEMBER 2014

FILE NO/S: CACV 77 of 2013

BETWEEN: PT BAYAN RESOURCES TBK
Appellant
AND
BCBC SINGAPORE PTE LTD
Respondent

FILE NO/S :CACV 79 of 2013

BETWEEN :PT BAYAN RESOURCES TBK
First Appellant
KANGAROO RESOURCES LTD
Second Appellant
AND
BCBC SINGAPORE PTE LTD
Respondent
ATTORNEY-GENERAL OF WESTERN AUSTRALIA
Intervener

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :LE MIERE J
Citation  :BCBC SINGAPORE PTE LTD -v- PT BAYAN RESOURCES TBK [No 3] [2013] WASC 239
File No  :CIV 1562 of 2012, CIV 2139 of 2012

Catchwords:

Freezing orders - Jurisdiction of the Supreme Court to make freezing orders - Pending substantive proceedings in the High Court of Singapore - Whether the Supreme Court has jurisdiction to make freezing orders in aid of the registration or enforcement in the Supreme Court of a prospective judgment of a foreign court - The defendant in the foreign proceedings has assets in Western Australia - No substantive proceedings, apart from the application for freezing orders in relation to the prospective foreign judgment, have been or are to be commenced in the Supreme Court - The foreign judgment, if given, will be registered and enforced in the Supreme Court - Inherent jurisdiction of the Supreme Court - Rules of the Supreme Court of Western Australia 1971 (WA), O 52A - Foreign Judgments Act 1991 (Cth), s 17 - Supreme Court Act 1935 (WA), s 16(1)(d)(i), s 167(1)(a)

Constitutional law - Commonwealth Constitution, s 109 - Whether O 52A, to the extent it authorises the Supreme Court to make a freezing order in relation to a prospective foreign judgment where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court, is inconsistent with the Foreign Judgments Act for the purposes of s 109 of the Commonwealth Constitution

Legislation:

Acts Interpretation Act 1901 (Cth), s 2K
Commonwealth Constitution, s 77(iii), s 109
Foreign Judgments Act 1991 (Cth), s 5, s 6, s 10, s 16, s 17, s 20
Foreign Judgments Regulations 1992 (Cth)
Judiciary Act 1903 (Cth), s 39(2), s 79(1), s 80
Rules of the Supreme Court 1971 (WA), O 52A
Supreme Court Act 1935 (WA), s 16(1)(d)(i), s 167(1)(a)

Result:

Appeals dismissed

Category: A

Representation:

CACV 77 of 2013

Counsel:

Appellant: Mr B W Walker SC & Mr P Kulevski
Respondent: Dr A S Bell SC & Mr D J Roche

Solicitors:

Appellant: Clayton Utz
Respondent: Herbert Smith Freehills

CACV 79 of 2013

Counsel:

First Appellant              :     Mr B W Walker SC & Mr P Kulevski
Second Appellant          :     Mr B W Walker SC & Mr P Kulevski
Respondent:     Dr A S Bell SC & Mr D J Roche
Intervener:     No appearance

Solicitors:

First Appellant              :     Clayton Utz
Second Appellant          :     Clayton Utz
Respondent:     Herbert Smith Freehills
Intervener:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Al Rawi v Security Service [2012] 1 AC 531
APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322
Aspermont Ltd v Lechmere Financial Corporation [2002] WASCA 52; (2002) 27 WAR 1
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 87 ALJR 458
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2012] WASC 170
BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 3] [2013] WASC 239; (2013) 276 FLR 273
Black Swan Investment ISA v Harvest View Ltd (BVI HCV 2009/399)
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
Celtic Resources Holdings Plc v Arduina Holding BV [2006] WASC 68; (2006) 32 WAR 276
Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334
Chew v Satay House of WA Pty Ltd (Unreported, WASC, Library No 970570, 29 October 1997)
Construction Engineering (Aust) Pty Ltd v Tambel (Australasia) Pty Ltd [1984] 1 NSWLR 274
Credit Suisse Fides Trust SA v Cuoghi [1998] QB 818
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345
Davis v Turning Properties Ltd [2005] NSWSC 742; (2005) 222 ALR 676
Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491
Felderhof v Deloitte & Touche Inc (2011) (2) CILR 35
Flynn v Flynn [1969] 2 Ch 403
Fourie v Le Roux [2007] 1 WLR 320
Gillies-Smith v Smith (Cause No 0173/2011)
Grant v Easton [1833] 13 QBD 302
Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1
Jackson v Sterling Industries Ltd (1986) 12 FCR 267
Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612
Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; (2011) 244 CLR 508
Johnson v Director‑General of Social Welfare (Vic) [1976] HCA 19; (1976) 135 CLR 92
Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268
Le Mesurier v Connor (1929) 42 CLR 481
Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485
Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101
Mercedes Benz AG v Leiduck [1996] AC 284
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Morton v The Union Steamship Company of New Zealand Ltd [1951] HCA 42; (1951) 83 CLR 402
Motorola Credit Corporation v Uzan (No 2) [2004] 1 WLR 113
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1990] HCA 10; (1990) 169 CLR 271
Northern Territory v GPAO [1999] HCA 8; (1999) 196 CLR 553
Official Receiver of the State of Israel v Raveh [2001] WASC 72; (2001) 24 WAR 53
Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Perth Mint v Mickelberg (No 2) [1985] WAR 117
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd [2014] NSWCA 3; (2014) 85 NSWLR 404
Raveh v Official Receiver of the State of Israel [2002] WASCA 27
Re SA Cryonic Medical [2002] VSC 338
Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264
Secilpar SL v Burgundy Consultants Ltd (CP 2003/128)
Severstal Export GmbH v Bhushan Steel Ltd [2013] NSWCA 102; (2013) 84 NSWLR 141
Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245
Simsek v Macphee [1982] HCA 7; (1982) 148 CLR 636
Siskina (Owners of cargo lately laden on board) v Distos Compania Naviera SA [1979] AC 210
Solvalub Ltd v Match Investments Ltd [1996] JLR 361
Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1
Walsh v Deloitte & Touche Inc [2001] UKPC 58
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
Table of Contents

McLure P's reasons............................................................................................................... 9
Commonwealth Foreign Judgments Act
Buss JA's reasons................................................................................................................. 17
The pending proceedings in the High Court of Singapore
Bayan's assets in Australia
The proceedings commenced in the Supreme Court and the High Court of Australia
The trial of CIV 1562 of 2012 and CIV 2139 of 2012
CACV 77 of 2013 and CACV 79 of 2013 and the parties to the appeals
Order 52A of the Supreme Court Rules
Supreme Court Act 1935 (WA)
Foreign Judgments Act 1991 (Cth)
The primary judge's reasons
The grounds of appeal
Nomenclature in relation to Mareva orders
Bayan's submissions
Matters not in contest in the appeals
Case law on the jurisdiction to make a Mareva order against a party to the principal litigation
Case law on the jurisdiction to make a Mareva order against a non‑party to the principal litigation
Case law on the jurisdiction to make a Mareva order in relation to a prospective foreign judgment where no substantive proceedings, apart from the application for the Mareva order, have been or are to be commenced in the place where the Mareva order is sought and there is no judgment in the foreign proceedings
The organisation of the balance of these reasons
The merits of the appeals: does O 52A of the Supreme Court Rules, to the extent it authorises the Supreme Court to make a freezing order in relation to a prospective foreign judgment to which pt 2 of the Foreign Judgments Act extends, where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court and there is no judgment in the foreign proceedings, ultra vires s 17 of the Foreign Judgments Act?
The merits of the appeals: is O 52A, to the extent it authorises the Supreme Court to make a freezing order in relation to foreign proceedings where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court and there is no judgment in the foreign proceedings, within the Supreme Court's inherent jurisdiction, further or alternatively its jurisdiction under s 16(1)(d)(i) of the Supreme Court Act?
The merits of the appeals: is O 52A, to the extent it authorises the Supreme Court to make a freezing order in relation to a prospective foreign judgment where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court and there is no judgment in the foreign proceedings, ultra vires s 167(1)(a) of the Supreme Court Act?
The merits of the appeals: is O 52A, to the extent it authorises the Supreme Court to make a freezing order in relation to foreign proceedings where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court and there is no judgment in the foreign proceeding, inconsistent with the Foreign Judgments Act for the purposes of s 109 of the Commonwealth Constitution?

Conclusion
Murphy JA's reasons.......................................................................................................... 73

McLURE P: I agree that the appeals should be dismissed, generally for the reasons given by Buss JA. I propose to make some additional comments. The background is set out by Buss JA. I will avoid unnecessary repetition. The ultimate issue in the appeal is the validity of O 52A r 5(1) of the Rules of the Supreme Court 1971 (WA) (Rules) insofar as it empowers the court to make a freezing order in anticipation of an enforceable money judgment in proceedings in another country.
The only relevant connection the litigants in this case have with Western Australia (and Australia) is that the appellant owns assets in Australia, being shares in Kangaroo Resources Ltd (KRL), whose principal place of business is in Perth. The litigants are both foreign; they are litigating, in pending proceedings in the High Court of Singapore (the Singapore proceedings), a contractual dispute for a money judgment over which this court does not have jurisdiction.
The Australian assets are not the subject of the Singapore proceedings. The only connection between the Singapore proceedings and the Australian assets is that, if successful in the Singapore proceedings, the respondent will take steps in Western Australia to register the judgment under the Foreign Judgments Act 1991 (Cth) (the Act) and execute against the KRL shares in satisfaction of the Singapore judgment debt.
Prior to judgment in the Singapore proceedings, the respondent sought and obtained from this court a freezing order under O 52A r 5(1)(b)(ii) of the Rules. A 'freezing order' is defined in O 52A r 2(1) to mean an order for the purpose of preventing the frustration or inhibition of the court's process by seeking to meet a danger that a judgment or prospective judgment of the court will be wholly or partly unsatisfied. Practitioners in the profession prior to February 2007 will recognise the nomenclature change from Mareva order to freezing order.
The primary judge held that the respondent's application was within, and satisfied the requirements of, O 52A r 5(1) of the Rules. There is no challenge to that decision. The appellant contends that, insofar as O52A r 5(1)(b)(ii) purports to empower the court to make a freezing order in anticipation of a money judgment entered in proceedings in a court outside Australia, it is invalid.
The primary judge held that: this court had inherent jurisdiction to make the freezing order; as s 16(1)(d)(i) of the Supreme Court Act 1935 (WA) is co‑extensive with this court's inherent jurisdiction, s 16(1)(d)(i) is a further source of this court's power to make the freezing order; O 52A r 5(1)(b)(ii) is authorised by the rule‑making power in s 167(1)(a) of the Supreme Court Act; O52A r 5(1)(b)(ii) is authorised by the rule‑making power in s 17 of the Act; and, if not authorised by s 17 of the Act, O 52A r 5(1)(b)(ii) is not inconsistent with the Act for the purpose of s 109 of the Constitution.
The primary judge also held that O 52A r 5(1)(b)(ii) is not an invalid attempt to confer upon the court a function incompatible with the role of the court as a repository of federal jurisdiction for the purposes of ch III of the Constitution. There is no challenge to the primary judge's decision relating to judicial power. Moreover, there was no issue below or in the appeal relating to service out of Australia of the proceedings in this court on the appellant.
I propose to confine my remarks to the scope of the Act and its relationship with State laws. It is convenient to start with the terms of the rule under challenge.
Order 52A r 5(1) relevantly provides:
This rule applies if ‑
…
(b)an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in ‑
…
(ii)in the case of a cause of action to which subrule (3) applies ‑ another court [meaning a court outside Australia, or a court in Australia other than the Supreme Court of Western Australia].
Subrule (3) provides:
This subrule applies to a cause of action if ‑
(a)there is a sufficient prospect that the other court will give judgment in favour of the applicant; and
(b)there is a sufficient prospect that the judgment will be registered in or enforced by the Court.
Order 52A r 6 relevantly provides that nothing in this Order diminishes the inherent, implied or statutory jurisdiction of the court to make a freezing order.
Order 52A r 7 permits service outside Australia of an application for a freezing order if any of the assets to which the order relates are within the jurisdiction of the court.
Order 52A is a harmonised rule; it has equivalents in the rules of other Australian State Supreme Courts and the Federal Court of Australia. The doctrine of necessity permits this court, in the exercise of its judicial power, to determine the validity of a rule it has made in the exercise of its delegated legislative power.
Until the commencement of the Act, the Foreign Judgments Act1963 (WA) (WA Foreign Judgments Act) covered the field in relation to the registration and enforcement of foreign judgments in Western Australia. Under s 8 of the WA Foreign Judgments Act, the power to make rules of court under s 167 of the Supreme Court Act included the power to make rules:
(f)for prescribing all matters and things that under [the WA Foreign Judgments Act] are required or permitted to be prescribed, or that are necessary or convenient to be prescribed for giving effect to this Act.
It can be inferred that there was a view that the rule‑making power in s 167 did not extend to matters of practice and procedure under the WA Foreign Judgments Act.
Former O 44 of the Rules (repealed in February 2007) related to the registration and enforcement of foreign judgments under the WA Foreign Judgments Act, which Act was repealed by the Courts Legislation Amendment and Repeal Act 2003 (WA).
Section 167(1)(a) of the Supreme Court Act relevantly provides (and did so when the WA Foreign Judgments Act was enacted) that Rules of Court may be made under this Act 'for regulating and prescribing the procedure … and the practice to be followed in the Supreme Court in all causes and matters whatsoever in or with respect to which the Court has for the time being jurisdiction … and any matters incidental to or relating to any such procedure or practice … '.
This rule‑making power does not itself extend to causes or matters involving federal jurisdiction: APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 [228] ‑ [230]. Proceedings under the Act involve the exercise of federal jurisdiction.

Commonwealth Foreign Judgments Act

The Act provides a framework for the enforcement of foreign civil judgments in Australia by a registration process. The Act is based on the principle of reciprocity, the scope of which is detailed in pt 2 of the Act. In broad terms, the principle is that if you enforce ours, we will enforce yours.
Part 2 of the Act applies to the countries and courts specified in regulations made under the Act: s 5(1) ‑ (3).
By the Foreign Judgments Regulations 1992 (Cth) (the Regulations), pt 2 of the Act extends to the Republic of Singapore and its High Court. The High Court of Singapore is part of its Supreme Court.
Part 2 of the Act applies to an enforceable money judgment that is final and conclusive and given in a superior or inferior court of a country in relation to which pt 2 extends: s 5(4).
There is potential to extend pt 2 to all or some non‑money judgments given in courts of a country that has been specified: s 5(6). The expression 'non‑money judgment' is defined in s 3 to mean a judgment that is not a [judgment under which money is payable] and 'judgment' is defined to include 'a final or interlocutory judgment or order given or made by a court in civil proceedings'. There has been no extension of pt 2 to non‑money judgments.
Part 2 of the Act does not apply to a judgment given by a court of New Zealand: s 5(10). The enforcement in Australia of judgments given by courts of New Zealand is governed by the Trans‑Tasman Proceedings Act 2010 (Cth). Of course, the Service and Execution of Process Act 1992 (Cth) (the SEP Act) regulates the registration and enforcement of judgments of Australian courts.
Section 6 of the Act deals with applications for, and the effect of, registration of foreign judgments. It relevantly provides that an application for registration may be made within a specified period after the date of judgment: s 6(1).
Section 6(3) provides:
Subject to this Act and to proof of the matters prescribed by the applicable Rules of Court, if an application is made under this section, the Supreme Court of a State or Territory or the Federal Court of Australia is to order the judgment to be registered.
The expression 'Rules of Court' is defined in s 3 to mean rules duly made by the Supreme Court of a State or Territory or the Federal Court of Australia.
Under s 10 of the Act, the only means of enforcement in Australia of a judgment to which pt 2 applies (other than an award enforceable under the International Arbitration Act 1974 (Cth)) is by proceedings under the Act for registration of the judgment.
However, the common law continues to apply to judgments to which pt 2 of the Act does not apply. A foreign money judgment to which the Act does not apply can become a judgment of this court at common law in two ways. A plaintiff can bring proceedings in Western Australia and rely on the foreign judgment as giving rise to a res judicata or issue estoppel: Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853, 918, 927, 948, 966. That is so notwithstanding the cause of action does not merge in a judgment of a foreign court: Flynn v Flynn [1969] 2 Ch 403, 412. A defendant's liability can also arise upon an implied contract or debt to pay the amount of the foreign judgment: Grant v Easton [1833] 13 QBD 302, 303.

Section 11 of the Act deals with foreign judgments given in an action in personam to which pt 2 does not apply. It provides that, for the purposes of proceedings in Australia to recover money under an action at common law on a foreign judgment, the rules in s 7(5) of the Act relating to voluntary submission to jurisdiction apply.
Section 12 of the Act provides for the recognition of foreign judgments in Australia. It applies both to judgments registrable under the Act and also to non‑money judgments which, although not registrable, would have been registrable if they had been money judgments. Subject to specified exceptions, such judgments must be recognised in any Australian court as conclusive between the parties in all proceedings based on the same cause of action. However, s 12 does not prevent an Australian court recognising a foreign judgment as conclusive of any matter of law or fact decided in the judgment where that judgment would be recognised as conclusive under the common law (s 12(3)).
Section 16 enables the Governor‑General to make regulations, not inconsistent with the Act, prescribing (inter alia) all matters 'for and in relation to the practice and procedure of a superior court in proceedings under this Act'. No such regulations have been made.
Section 17 relates to Rules of Court and relevantly provides:
(1)The power of an authority to make rules regulating the practice and procedure of a superior court extends to making any rules, not inconsistent with this Act or with any regulations made under this Act, prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act, including the following: [the matters set out in pars (a) ‑ (e)].
(2)This section does not affect any power to make rules under any other law.
The matters in pars (a) ‑ (e) relate, directly and immediately, to the application for and effect of the registration of foreign judgments under s 6. Section 17(1) is similar in scope to s 8 of the repealed WA Foreign Judgments Act.
Order 44A of the Rules replace repealed O 44 and focuses on matters falling within pars (a) to (e) of s 17(1) of the Act. By contrast, O 52A deals with freezing orders generally.
Before going to the validity of O 52A r 5(1)(b)(ii) it is necessary to identify the consequences flowing from the fact that this court is exercising federal jurisdiction under s 77(iii) of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth). This was not subject of submission by the parties, probably because (as we shall see) all roads lead to Rome.
Section 79(1) of the Judiciary Act relevantly provides that the laws of each State, including the laws relating to (inter alia) procedure shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable.
Section 79(1) operates on State legislation, not the common law which is dealt with in s 80 of the Judiciary Act. Section 79(1) picks up and applies State legislation as Commonwealth law except as 'otherwise provided' by the Constitution or the laws of the Commonwealth. The objective of s 79 is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State in which the jurisdiction is being exercised, together with the law of the Commonwealth, but subject always to the overriding effect of the Constitution itself: Northern Territory v GPAO (1999) 196 CLR 553 [80].
The 'otherwise provides' test in s 79(1) is different from the test of inconsistency under s 109 of the Constitution in that it does not extend to the 'cover the field' type of inconsistency: Northern Territory v GPAO [80].
With limited exceptions, the Commonwealth must take a State court's constitution and organisation as it finds it but may fix and control the federal jurisdiction invested on the court: Le Mesurier v Connor (1929) 42 CLR 481.
The validity of O 52A depends, most immediately, on the scope of the relevant rule‑making power. The scope of the rule‑making power is governed by the existence and scope of the jurisdiction and power conferred on the court by the legislature.
The Federal Court has 'implied' power to grant a Mareva (freezing) order under s 23 of the Federal Court of Australia Act 1976 (Cth): Jackson v SterlingIndustries Ltd (1987) 162 CLR 612. Even in the absence of s 23, the Federal Court would possess the power to make a freezing order in relation to matters properly before it as an incident of the general grant to it as a superior court of law and equity of jurisdiction to deal with such matters: Jackson v Sterling Industries.
Under s 16 of the Supreme Court Act, the Supreme Court of Western Australia is invested with all the jurisdiction, including inherent jurisdiction, of the common law courts at Westminster and the Court of Chancery as at the commencement of the Supreme Court Ordinance 1861. This court has inherent jurisdiction to prevent abuse or frustration of its processes, which includes the power to make a freezing order. 'Jurisdiction' and 'power' are not discrete concepts and the term 'inherent jurisdiction' may be used to describe what in truth is the power of a court to make orders of a particular description: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 590. A freezing order is within that category: Jackson v Sterling Industries (630).
The Act does not itself confer jurisdiction or power on State and Federal courts to grant freezing orders. Rather, the Act has invested federal jurisdiction on courts that already have the jurisdiction or power to grant freezing orders in relation to matters within their jurisdiction.
The institutional integrity of State Supreme courts is safeguarded by (inter alia) the inherent jurisdiction to prevent abuse or frustration of its processes, including the power to make a freezing order. The only reasonable conclusion is that this court's inherent jurisdiction to make freezing orders is picked up by s 79(1) of the Judiciary Act and applied to the Act.
Order 44A of the Rules was made under s 17(1) of the Act which, as I have said, is in materially the same terms as s 8 of the former WA Foreign Judgments Act. By contrast, O 52A is in general terms and is wide enough to embrace, inter alia, this court's federal jurisdiction to register and enforce foreign judgments under the Act and arguably this court's common law (State) jurisdiction to enforce foreign money judgments to which the Act does not apply.
My view is that, on its proper construction, s 17 of the Act itself picks up and extends s 167 of the Supreme Court Act and any rules made thereunder that are not directly inconsistent with the Act or rules made under s 17(1), without the need to rely on s 79(1) of the Judiciary Act. The opening words of s 17(1) (like s 8 of its State predecessor) refer to an extension of this court's rule‑making power under s 167. That is, s 17 is similar in effect to s 132(2) of the SEP Act. Alternatively, the Act does not 'otherwise provide' to exclude O 52A (if valid) from the application of s 79(1) of the Judiciary Act.
If (contrary to my view) s 17(1) is the sole source of the rule‑making power in connection with the registration and enforcement of foreign judgments under the Act, its scope relating to freezing orders could not extend beyond the scope of this court's inherent jurisdiction. That is, the rule‑making power in s 17(1) of the Act (like s 167 of the Supreme Court Act) would be co‑extensive with the scope of this court's inherent jurisdiction to make a freezing order.
On this analysis of the relationship between the relevant State and Federal laws, there is no scope for a claim of s 109 inconsistency. The real issue in this appeal is whether O 52A r 5(1)(b)(ii) is outside the scope of this court's inherent jurisdiction. On that subject, I agree with the reasons of the primary judge [34] and Buss JA.
The High Court's consideration of the existence, scope and purpose of the jurisdiction to grant a freezing order has been in cases in which the

applicant had commenced proceedings (in the same court) for final relief to which the freezing order was ancillary. Some of its language reflects that fact. However, the High Court's identification of the jurisprudential basis and purpose of a freezing order is inconsistent with a conclusion that the prior commencement of proceedings in the same court for final relief is a necessary condition (jurisdictional fact) that enlivens the power to make a freezing order. If that was so, this court could not grant a freezing order after judgment in the Singapore proceedings but before the filing of an application to register the judgment. If the commencement of proceedings in this jurisdiction is not a jurisdictional requirement, any other jurisdictional cut off point after the commencement of the foreign proceedings but before commencement of proceedings in this court is, as a matter of principle, unjustified.

At least in circumstances where the relevant foreign proceedings have commenced and the matters in O 52A r 5(3) have been established, the timing of the application for a freezing order goes to the exercise of the discretion, rather than the existence of the jurisdiction or power, to grant a freezing order.
BUSS JA: The primary issue in these appeals is whether the Supreme Court of Western Australia (the Supreme Court) has jurisdiction to make freezing orders in aid of the registration or enforcement in the Supreme Court of any judgment that BCBC Singapore Pte Ltd (BCBCS), the respondent in CACV 77 of 2013 and CACV 79 of 2013, may obtain from the High Court of Singapore in pending proceedings in that court against PT Bayan Resources TBK (Bayan), the appellant in CACV 77 of 2013 and the first appellant in CACV 79 of 2013.

The pending proceedings in the High Court of Singapore

BCBCS is a company incorporated in Singapore. It is a wholly owned subsidiary of an Australian company, Binderless Coal Briquetting Co Pty Ltd (BCBC). BCBC is a wholly owned subsidiary of another Australian company, White Energy Co Ltd.
BCBCS holds 51% of the issued share capital of an Indonesian company, PT Kaltim Supacoal (KSC). The other 49% is held by Bayan. Bayan is a company incorporated in Indonesia.
By a deed dated 7 June 2006 (the JV Deed) made between BCBC and Bayan International Pty Ltd (Bayan International), the parties made provision for the rights and obligations of the shareholders in KSC. Later, by a deed of novation, Bayan acquired the shares in KSC previously held

by Bayan International, and BCBCS acquired the shares in KSC previously held by BCBC. The JV Deed is governed by the law of Singapore.

In November and December 2011, a dispute arose between BCBCS and Bayan. BCBCS alleges that, in breach of the JV Deed, Bayan instructed its associated companies to cease supplying coal to KSC and, further, Bayan refused to provide funding to KSC. On 13 December 2011, Bayan served a default notice on BCBCS alleging that BCBCS had breached its obligations under the JV Deed. BCBCS alleges that the default notice was invalid and, in any event, denies the allegations in the notice.
On 27 December 2011, BCBCS commenced proceedings against Bayan and Bayan International in the High Court of Singapore. The relief claimed by BCBCS includes damages from Bayan for breaches of the JV Deed.
On 21 February 2012, Bayan served a notice on BCBCS in which it terminated, or purported to terminate, the JV Deed. BCBCS treated the notice as a wrongful repudiation by Bayan of its obligations under the JV Deed. BCBCS accepted the repudiation and terminated the JV Deed.
On 23 March 2012, BCBCS amended its pleadings in the High Court of Singapore. The relief claimed under the amended pleadings is damages for breach of contract.
No judgment has been obtained from the High Court of Singapore in the pending proceedings.
No proceedings, apart from an application for freezing orders, have been or will be commenced by BCBCS in Western Australia unless BCBCS obtains a judgment against Bayan in the High Court of Singapore. It will then register and enforce the judgment in the Supreme Court pursuant to the Foreign Judgments Act 1991 (Cth).

Bayan's assets in Australia

BCBCS believes that if it obtains a judgment against Bayan in the High Court of Singapore it will be unable to enforce the judgment against Bayan in Indonesia. Most of Bayan's assets are located in that country. However, in addition to its Indonesian assets, Bayan has substantial assets in Australia. These assets comprise 57% of the issued share capital of an Australian company, Kangaroo Resources Ltd (KRL), whose principal place of business is in Perth.

The proceedings commenced in the Supreme Court and the High Court of Australia

On 5 April 2012, BCBCS applied to the Supreme Court for freezing orders against Bayan and against KRL, the second appellant in CACV 79 of 2013, in respect of the shares held by Bayan in KRL.
On 5 April 2012, Pritchard J made interim freezing orders against Bayan and KRL (the Freezing Orders). See BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2012] WASC 170. These orders restrained:
(a)Bayan from transferring any of its shares in KRL (the Shares) to a related entity, from further encumbering the Shares and from disposing of or dealing with the Shares without first giving seven clear business days' notice in writing to BCBCS; and
(b)KRL from registering the transfer of any of the Shares to a related entity of Bayan and required KRL to give seven clear business days' notice in writing to BCBCS before registering the transfer of any of the Shares or disposing of assets of KRL with a value in excess of $5 million other than in the ordinary course of business.
On 17 May 2012, Bayan and KRL commenced proceedings in the High Court of Australia in which they challenged the jurisdiction or power of the Supreme Court to make the Freezing Orders.
On 26 June 2012, Gummow ACJ ordered that the High Court proceedings be remitted to the Supreme Court. Those proceedings became CIV 2139 of 2012 in the General Division of the Supreme Court.
Bayan gave notice under s 78B of the Judiciary Act 1903 (Cth) that CIV 2139 of 2012 involved a matter arising under the Commonwealth Constitution or involved its interpretation. The Attorney General for Western Australia intervened in those proceedings pursuant to s 78A of the Judiciary Act.
Subsequently, Le Miere J (the primary judge) ordered that the proceedings in which BCBCS applied for the Freezing Orders and in which it sought a continuation of those orders (being CIV 1562 of 2012 in the General Division of the Supreme Court) be heard together with the proceedings in which Bayan and KRL challenged the jurisdiction or power of the Supreme Court to make the Freezing Orders (being CIV 2139 of 2012).

The trial of CIV 1562 of 2012 and CIV 2139 of 2012

On 13, 14 and 15 February 2013, CIV 1562 of 2012 and CIV 2139 of 2012 were tried before the primary judge.
On 26 June 2013, his Honour decided that:
(a)The Supreme Court had jurisdiction to make the Freezing Orders. Order 52A r 5(1)(b)(ii) of the Rules of the Supreme Court 1971 (WA) (the Supreme Court Rules), to the extent it authorises the Supreme Court to make the Freezing Orders, is within the inherent jurisdiction of the Supreme Court, and is authorised by the rule making power in s 167(1)(a) of the Supreme Court Act 1935 (WA) and s 17 of the Foreign Judgments Act. Bayan's claims for relief in CIV 2139 of 2012 should be dismissed.
(b)On the basis that BCBCS maintains its undertaking, and security for that undertaking, in the sum of $2 million, the Freezing Orders against Bayan should be continued until further order, subject to a variation (which is irrelevant to these appeals) to the interim orders.
(c)The Freezing Orders against KRL should not be continued.
See BCBC Singapore Pte Ltd v PT Bayan Resources TBK [No 3] [2013] WASC 239; (2013) 276 FLR 273.
On 26 June 2013, the primary judge also made orders giving effect to his reasons for decision and the following orders as to costs:
(a)in CIV 1562 of 2012, BCBCS pay the costs of KRL, as agreed or assessed;
(b)in CIV 1562 of 2012, as between BCBCS and Bayan, the costs of BCBCS's application for freezing and other orders be costs in the cause of the proceedings in the High Court of Singapore; and
(c)in CIV 2139 of 2012, Bayan and KRL pay the costs of BCBCS, as agreed or assessed.

CACV 77 of 2013 and CACV 79 of 2013 and the parties to the appeals

The appeal in CACV 77 of 2013 relates to the primary judge's decision in CIV 1562 of 2012. His Honour decided in CIV 1562 of 2012, relevantly, that the Freezing Orders should be continued against Bayan but should not be continued against KRL. In CACV 77 of 2013 Bayan appeals against his Honour's decision that the Freezing Orders against it should be continued.
The appeal in CACV 79 of 2013 relates to the primary judge's decision in CIV 2139 of 2012. His Honour decided in CIV 2139 of 2012, relevantly, that Bayan's and KRL's claims for declaratory relief in relation to the Supreme Court's jurisdiction or power should be dismissed. In CACV 79 of 2013 Bayan and KRL appeal against his Honour's decision that the Supreme Court had jurisdiction to make the Freezing Orders.
On 26 July 2013, Registrar Bush ordered that the appeals in CACV 77 of 2013 and CACV 79 of 2013 be consolidated and carried on as one appeal under the number CACV 79 of 2013.
KRL is not a party to the substantive proceedings in the High Court of Singapore between BCBCS and Bayan. Although KRL is an appellant with Bayan in the appeal against the primary judge's dismissal of their claims for declaratory relief in CIV 2139 of 2012, KRL took no active part in the appeal. KRL's position was that, as there are no freezing orders in force against it, whether Bayan's appeal succeeds does not impact on KRL's interests except in relation to the costs orders made by his Honour. KRL wanted to be a party to the appeal so that this court may set aside the costs order against KRL in CIV 2139 of 2012 in the event that Bayan is successful in its appeal.
The Attorney General for Western Australia appeared by counsel at the trial before the primary judge. However, on 16 September 2013 the solicitors for the Attorney General filed a notice informing this court and the other parties that he did not intend to take part in the appeal in CACV 79 of 2013, and he would accept any order made by this court in the appeal other than as to costs.

Order 52A of the Supreme Court Rules

Order 52A of the Supreme Court Rules is headed 'Freezing orders' and provides, relevantly, as follows:
1.Terms used
In this Order, unless the contrary intention appears ‑
ancillary order has the meaning given by rule 3;
another court means a court outside Australia, or a court in Australia other than the Supreme Court of Western Australia;
applicantmeans a person who applies for a freezing order or an ancillary order;
freezing order has the meaning given by rule 2;
judgmentincludes an order;
respondent means a person against whom a freezing order or ancillary order is sought or made.
2.Freezing order
(1)The Court may make an order (a freezing order), upon or without notice to the respondent, for the purpose of preventing the frustration or inhibition of the Court's process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.
(2)A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
…
5.Order against judgment debtor, prospective judgment debtor or third party
(1)This rule applies if ‑
(a)judgment has been given in favour of an applicant by ‑
(i)the Court; or
(ii)in the case of a judgment to which subrule (2) applies ‑ another court;
or
(b)an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in ‑
(i)the Court; or
(ii)in the case of a cause of action to which subrule (3) applies ‑ another court.
(2)This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the Court.
(3)This subrule applies to a cause of action if ‑
(a)there is a sufficient prospect that the other court will give judgment in favour of the applicant; and
(b)there is a sufficient prospect that the judgment will be registered in or enforced by the Court.
(4)The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur ‑
(a)the judgment debtor, prospective judgment debtor or another person absconds; or
(b)the assets of the judgment debtor, prospective judgment debtor or another person are ‑
(i)removed from Australia or from a place inside or outside Australia; or
(ii)disposed of, dealt with or diminished in value.
(5)The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the Court is satisfied, having regard to all the circumstances, that ‑
(a)there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because ‑
(i)the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or
(ii)the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor;
or
(b)a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.
(6)Nothing in this rule affects the power of the Court to make a freezing order or ancillary order if the Court considers it is in the interests of justice to do so.
6.Court's other jurisdiction not affected
Nothing in this Order diminishes the inherent, implied or statutory jurisdiction of the Court to make a freezing order or ancillary order.
7.Service outside Australia of application for order
An application for a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia) if any of the assets to which the order relates are within the jurisdiction of the Court.

Order 52A r 5 distinguishes between actual or prospective judgments of the Supreme Court and actual or prospective judgments of other courts.
The rule empowers the Supreme Court to make a freezing order or an ancillary order or both, in specified circumstances, in connection with a judgment or prospective judgment of a foreign court and, also, against a person other than a judgment debtor or prospective judgment debtor.
Order 52A r 5(1)(b)(ii), read with O 52A r 5(3), contemplates that a freezing order may be made where the applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in another court, including a court of a foreign country.
By O 52A r 7, the Supreme Court may order that an application for a freezing order or an ancillary order be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia) if any of the assets to which the order relates are within the Supreme Court's jurisdiction.
Order 52A commenced operation on 1 March 2007. Relevantly identical provisions are in force throughout Australia. See, for example, div 7.4 of the Federal Court Rules 2011 (Cth) (previously O 25A of the Federal Court Rules 1976 (Cth)) and r 25 of the Uniform Civil Procedure Rules 2005 (NSW). The uniform rules were developed under the auspices of the Australian Council of Chief Justices.

Supreme Court Act 1935 (WA)

Section 16(1) of the Supreme Court Act provides, relevantly:
Subject as otherwise provided in this Act, and to any other enactment in force in this State, the Supreme Court ‑
(a)is invested with and shall exercise such and the like jurisdiction, powers, and authority within Western Australia and its dependencies as the Courts of Queen's Bench, Common Pleas, and Exchequer, or either of them, and the judges thereof, had and exercised in England at the commencement of the Supreme Court Ordinance 1861; and
…
(c)is authorised, empowered, and required to take cognizance of and hold all pleas and all manner of causes, suits, actions, pleas of the Crown, prosecutions, and informations, whether civil, criminal, or mixed, with the same and as full power within Western Australia and its dependencies to hear, judge, determine, and execute therein, as the Courts of Queen's Bench, Common Pleas, and Exchequer … had in England at the commencement of the Supreme Court Ordinance 1861, and as shall be necessary for carrying into effect the several jurisdictions, powers, and authorities committed to the Court, and shall adjudge and determine in all and every the same matters according to the laws and statutes of the realm of England in force in Western Australia, the laws and statutes of Western Australia, and the Acts of the Commonwealth of Australia; and
(d)shall be a court of equity, with power and authority within Western Australia and its dependencies ‑
(i)to administer justice, and to do, exercise, and perform all acts, matters, and things necessary for the due execution of such equitable jurisdiction as, at the commencement of the Supreme Court Ordinance 1861, the Lord Chancellor of England could or lawfully might have done within the realm of England in the exercise of the jurisdiction to him belonging; …
By section 167(1)(a) of the Act:
Rules of court may be made under this Act, by the judges of the Supreme Court, for the following purposes ‑
(a)for regulating and prescribing the procedure (including the method of pleading) and the practice to be followed in the Supreme Court in all causes and matters whatsoever in or with respect to which the Court has for the time being jurisdiction (including the procedure and practice to be followed in the offices of the Supreme Court), and any matters incidental to or relating to any such procedure or practice, including (but without prejudice to the generality of the foregoing provision) the manner in which, and the time within which, any applications or appeals which under this or any other Act are to be made to the Court shall be made.

Foreign Judgments Act 1991 (Cth)

The Foreign Judgments Act provides a framework for the registration and enforcement in Australia of certain foreign judgments to which the Act extends. The Act replaced State and Territory legislation governing the registration and enforcement of foreign judgments in the Supreme Courts of the States and Territories.
Section 17 of the Act in effect empowers the Supreme Court of each State and Territory and the Federal Court to make rules of court prescribing matters necessary or convenient for carrying out or giving effect to the Act.

The primary judge's reasons

The primary judge held:
(a)The Supreme Court has 'jurisdiction or power to make a freezing order for the purpose of preventing the frustration of a prospective judgment in [the Supreme Court] resulting from the registration of a judgment on a cause of action being tried in a foreign jurisdiction' [35].
(b)The Supreme Court has 'an inherent jurisdiction to make a freezing order against a prospective judgment debtor where there is a sufficient prospect that a foreign court will give judgment in favour of the applicant and the judgment will be registered in or enforced by [the Supreme Court]' [44].
(c)The power conferred on the Supreme Court by s 16(1)(d)(i) of the Supreme Court Act is 'for present purposes coextensive with [the] inherent power [to make freezing orders]' and '[i]n that sense, section 16(1)(d)(i) … is a further source of the power of the court to make a freezing order of the sort here being considered' [48].
(d)Order 52A r 5(1)(b)(ii) of the Supreme Court Rules is authorised by the rule making power in s 167(1)(a) of the Supreme Court Act because '[the Supreme Court] has inherent jurisdiction to make a freezing order against a prospective judgment debtor where there is a sufficient prospect that a foreign court will give judgment in favour of the applicant and the judgment will be registered in or enforced by this court' [50].
(e)A rule providing for the Supreme Court to make a freezing order in respect of a prospective foreign judgment registered in the court 'complements rather than supplements the power granted to the court [under the Foreign Judgments Act] to register and enforce a foreign judgment' [60]. Order 52A r 5(1)(b) and O 52A r 5(3) are 'necessary or convenient for carrying out or giving effect to the Foreign JudgmentsAct' and, accordingly, 'O 52A r 5(1)(b)(ii) is authorised by the rule making power in section 17 of the Foreign Judgments Act' [60].
(f)Even if, contrary to his Honour's opinion, O 52A r 5(1)(b)(ii) is not authorised by s 17 of the Foreign Judgments Act, 'it is not inconsistent with the Foreign Judgments Act' [61]. The absence of inconsistency means that O 52A r 5(1)(b)(ii) is not inoperative by reason of s 109 of the Commonwealth Constitution [61].
(g)Order 52A does not confer on the Supreme Court a function that is 'incompatible with its role under ch III of the Constitution as a repository of federal jurisdiction' [70].
(h)The Supreme Court has 'jurisdiction, or power, to make a freezing order and to continue the Freezing Orders against Bayan' if the following conditions are satisfied:
1.BCBCS has a good arguable case on an accrued cause of action that is justiciable in the High Court of Singapore (O 52A r 5(1)(b)(ii));
2.there is a sufficient prospect that the High Court of Singapore will give judgment in favour of BCBCS (O 52A r 5(3)(a));
3.there is a sufficient prospect that the judgment will be registered in or enforced by this court (O 52A r 5(3)(b)); and
4.the Court is satisfied that there is a danger that a prospective judgment in the High Court of Singapore will be wholly or partly unsatisfied because the assets of Bayan are removed from Australia or disposed of, dealt with, or diminished in value (O 52A r 5(4)(b)) [73].
A critical aspect of his Honour's reasoning was that s 16(1)(d)(i) and s 167(1)(a) of the Supreme Court Act only permitted the making of O 52A r 5(1)(b)(ii) because the Supreme Court had an inherent jurisdiction to make the Freezing Orders. In other words, his Honour held that those provisions of the Supreme Court Act did not confer any additional power to make O 52A r 5(1)(b)(ii). The efficacy of s 16(1)(d)(i) and s 167(1)(a) depended entirely on the existence of an inherent jurisdiction [48], [50].
Accordingly, his Honour found that O 52A r 5(1)(b)(ii) was supported by the Supreme Court's inherent jurisdiction, further or alternatively, by the rule making power in s 17 of the Foreign Judgments Act.

The grounds of appeal

Bayan relies on nine grounds of appeal. It is unnecessary to reproduce them.
Bayan's contentions in its grounds may be summarised as follows:
(a)The Supreme Court does not have inherent or statutory power to make freezing orders 'in support of foreign proceedings' where:
(i)no substantive proceedings, apart from the application for a freezing order, have been or are to be commenced in the Supreme Court; and
(ii)there is no judgment in the foreign proceedings.
(b)The existence of such a power would be inconsistent, including for the purposes of s 109 of the Commonwealth Constitution, with the scheme established by the Foreign Judgments Act, and is therefore:
(i)not authorised by the Foreign Judgments Act; and
(ii)cannot be authorised by State delegated legislation, namely O 52A of the Supreme Court Rules as supported by the rule making power in s 167(1)(a) of the Supreme Court Act, further or alternatively, by s 16(1)(d)(i) of the Supreme Court Act.
(c)The rules which s 17 of the Foreign Judgments Act authorises a court to make must be predicated on the existence of a foreign judgment.

Nomenclature in relation to Mareva orders

In Australia Mareva orders are now usually referred to as asset preservation orders or freezing orders. It is necessary, in these reasons, to review a number of cases decided before and after the change of nomenclature. It is convenient sometimes to refer to these kinds of orders as Mareva orders.

Bayan's submissions

Counsel for Bayan submitted that the Supreme Court's jurisdiction to make a Mareva order exists as an ancillary jurisdiction to maintain the effectiveness of the Supreme Court's process in dealing with a substantive controversy that is to be tried in the Supreme Court. The doctrinal basis of this inherent jurisdiction arises from the Supreme Court's power to prevent the abuse or frustration of its process.
It was submitted that if BCBCS were to obtain a judgment from the High Court of Singapore in the pending proceedings it could commence proceedings immediately in the Supreme Court for Mareva relief even if an application to register the judgment in the Supreme Court had not been made. The Supreme Court would then have a process to protect from abuse or frustration and BCBCS could give an undertaking that the relevant proceedings would be commenced. However, before that time BCBCS is confined to seeking Mareva relief from the High Court of Singapore if it can establish the preconditions for the granting of such relief.
Counsel argued that a fundamental underpinning of BCBCS's case for the existence of an inherent jurisdiction in the Supreme Court to grant freezing orders in support of foreign proceedings has fallen away. BCBCS's case before the primary judge relied in part on the contention that the Supreme Court could make ancillary orders against KRL. However, his Honour rejected BCBCS's claim for interim relief against KRL and that decision is not challenged in this court.
It was asserted that the Supreme Court was fundamentally in a less suitable position than the High Court of Singapore to supervise any ongoing Mareva relief. According to counsel, it may be one thing, subject to the Foreign Judgments Act, if Mareva relief was sought in the Supreme Court to support equivalent relief granted by the High Court of Singapore. However, the recognition of an inherent jurisdiction without an approach having been made to the High Court of Singapore would impeach comity between Australia and Singapore, and lead to the expense, difficulty and inconvenience of 'fighting a battle on two fronts'. These considerations, so it was argued, tend heavily against the existence of an inherent jurisdiction in the Supreme Court and highlight the necessity for the availability of Mareva relief to be tied to the determination of the substantive controversy.
Counsel for Bayan submitted that the Foreign Judgments Act is a general and complete federal legislative scheme as to when foreign judgments are enforceable by Australian courts. Contrary to the primary judge's reasoning at [66], upon a foreign country being brought within the scheme, the Foreign Judgments Act is exclusive in respect of the enforceability of judgments obtained from the courts of that country.
It was submitted that it 'impairs, negates or detracts from' the operation of the Foreign Judgments Act for State delegated legislation to purport to give a Supreme Court authority to freeze property 'in aid of a foreign judgment that has not yet been obtained and may never be obtained'. According to counsel for Bayan, the Foreign Judgments Act operates on two basic assumptions. First, domestic enforcement procedures do not begin until a foreign judgment has been obtained. Secondly, reciprocity is the hallmark for recognising a relationship between the judicial decisions of two countries that 'allows them to be enforced'. It was submitted that O 52A offends both of these assumptions.

Matters not in contest in the appeals

A number of matters are not in contest in the appeals:
(a)If the High Court of Singapore enters judgment against Bayan in the pending proceedings BCBCS will register and enforce the judgment in Western Australia pursuant to the Foreign Judgments Act.
(b)The cause of action being litigated by BCBCS against Bayan in the High Court of Singapore could not be litigated in Western Australia.
(c)Bayan has assets in Western Australia. On 5 April 2012, Pritchard J granted BCBCS leave to serve proceedings for the freezing and other orders on Bayan out of the jurisdiction. See O 10 r 7 and O 52A r 7 of the Supreme Court Rules; BCBC Singapore. Her Honour's grant of leave has not been challenged.
(d)The primary judge decided that there was a sufficient prospect that the High Court of Singapore would give judgment in favour of BCBCS in the pending proceedings. Bayan does not challenge that decision.
(e)The primary judge found in essence that if the Freezing Orders were not continued there was a real and sensible risk that a judgment obtained by BCBCS from the High Court of Singapore would remain unsatisfied. Bayan does not challenge that finding.
(f)Bayan argued before the primary judge that his Honour should exercise his discretion against continuing the Freezing Orders. His Honour rejected Bayan's argument. The grounds of appeal do not allege any express or implied error in his Honour's exercise of discretion.
(g)Order 52A in terms authorised the making and continuing of the Freezing Orders. The central question in the appeals is whether the making of O 52A itself was authorised.

Case law on the jurisdiction to make a Mareva order against a party to the principal litigation

In Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264, the plaintiff commenced proceedings against the defendants in the Supreme Court of New South Wales claiming the repayment of a debt in respect of loans and other relief. The plaintiff applied by notices of motion to a judge in the Commercial List for Mareva orders against the defendants. The defendants contended that the Supreme Court of New South Wales had no jurisdiction to grant such relief. The judge made interlocutory orders for the purpose of maintaining the status quo and directed the removal of the motions into the Court of Appeal. Street CJ, Hope JA and Rogers AJA held that the Supreme Court had jurisdiction to make the Mareva orders sought by the plaintiff. The jurisdiction derived from s 23 of the Supreme Court Act 1970 (NSW) or from the inherent power of the court. By s 23, the Supreme Court 'shall have all jurisdiction which may be necessary for the administration of justice in New South Wales'. Their Honours said:
We have come to the conclusion that jurisdiction does exist and that it
derives from the Supreme Court Act, s 23, or from the Court's inherent
power. The basis of jurisdiction is founded on the risk that the defendant
will so deal with his assets that he will stultify and render ineffective any
judgment given by the Court in the plaintiff's action, and thus impair the
jurisdiction of the Court and render it impotent properly and effectively to
administer justice in New South Wales …
Assuming that the jurisdiction is exercised with due caution, it seems to

us that it is necessary for the administration of justice in this State that the

court should have power to prevent a defendant who would otherwise

have assets to satisfy a judgment from setting the court and its procedures

at naught by making sure that its judgment will be a mere brutum fulmen.

The whole sense and purpose of the inherent powers, as well as the powers

which s 23 confers, are to ensure the effective administration of justice.

The analysis of the 'Mareva' injunction which has occurred during the

years of its growth show that it is designed to prevent conduct inimical to

the administration of justice. The reported decisions show that a 'Mareva'

injunction will be granted where necessary to ensure that justice is

effectively administered (276).
Those observations have been cited with approval in Perth Mint v Mickelberg (No 2) [1985] WAR 117, 118 ‑ 119 (Burt CJ), 121 (Wallace J), 124 (Pidgeon J); Jackson v Sterling Industries Ltd (1986) 12 FCR 267, 280 ‑ 283, 288 (Woodward J), 292, 295 (Jackson J); Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, 617 (Wilson & Dawson JJ), 630 (Toohey J), 637, 642 (Gaudron J); Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 321 (Gleeson CJ), 327, 329 ‑ 330 (Rogers AJA).
In Perth Mint, Burt CJ expressed the view that the 'true basis for the exercise of the [Mareva] jurisdiction … is to render the administration of the law effective and to prevent abuse' (118).
In Jackson (High Court), the High Court examined the Federal Court's jurisdiction to grant Mareva relief. Section 23 of the Federal Court of Australia Act 1976 (Cth) confers on the Federal Court power, in relation to matters in which it has jurisdiction, 'to make orders of such kinds, including interlocutory orders … as the Court thinks appropriate'. Wilson and Dawson JJ said the power of a court to grant Mareva relief 'is to be found in its capacity to prevent the abuse of its process' (617). Gaudron J was of the view that s 23 gave power to the Federal Court to make Mareva orders, but 'such orders ought to be recognised as an aspect of what would, statutory authority aside, commonly be identified as inherent power' (639 ‑ 640). Deane J made observations similar to those of Gaudron J (623 ‑ 624).
The rationale underpinning the granting of Mareva relief was described in Jackson (High Court) as follows:
(a)Wilson and Dawson JJ said the Mareva doctrine 'exists not to create additional rights but to enable a court to protect its process from abuse in relation to the enforcement of its orders' (619);
(b)Brennan J said Mareva relief is 'a remedy which is incidental to the exercise by a court of its jurisdiction to enter judgment for a debt or damages and which is designed to prevent the defendant from divesting himself of his assets whereby enforcement of such judgment might be frustrated' (621);
(c)Deane J said the purpose of Mareva relief is 'to prevent a defendant from disposing of his actual assets (including claims and expectancies) so as to frustrate the process of the court by depriving the plaintiff of the fruits of any judgment obtained in the action' (625); and
(d)Toohey J said a Mareva order was 'designed to ensure that a judgment, if obtained against [the defendant], will not prove useless' (634).

Deane J (623) and Gaudron J (637) accepted in Jackson (High Court) that a Mareva order may be made not only in respect of an actual judgment but also in respect of a prospective judgment.
In Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, 535, Brennan, Deane, Toohey and Gaudron JJ cited with approval Deane J's statement in Jackson (High Court) that the purpose of Mareva relief is 'to prevent the abuse or frustration of [a court's] process in relation to matters coming within its jurisdiction' (623). See also Patterson (321).
Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ noted in CSR Ltd v Cigna Insurance Australia Ltd[1997] HCA 33; (1997) 189 CLR 345 that '[t]he counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion (see, eg, with respect to the power to grant a Mareva injunction, Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 619, 621, 639; Witham v Holloway (1995) 183 CLR 525 at 535. See also Ridgeway v The Queen (1995) 184 CLR 19 at 60)' (391) (original emphasis). The making of Mareva orders has been described as the paradigm example of the court exercising this power to protect the integrity of its processes. See Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 [35] (Brennan CJ, McHugh, Gummow, Kirby & Hayne JJ).
The power to grant Mareva relief is 'an established part of the armoury of a court of law and equity to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction': Jackson (High Court) (623) (Deane J).
Mareva orders may be made against a defendant even though there is an absence of a positive intention to frustrate any judgment that may be granted. See National Australia Bank Ltd v Bond Brewing Holdings Ltd [1990] HCA 10; (1990) 169 CLR 271, 277 (Mason CJ, Brennan & Deane JJ).
In Patterson, Gleeson CJ specified the matters which a plaintiff must establish on an application for Mareva relief:
The remedy is discretionary, but it has been held that, in addition to any other considerations that may be relevant in the circumstances of a particular case, as a general rule a plaintiff will need to establish, first, a prima facie cause of action against the defendant, and secondly, a danger that, by reason of the defendant's absconding, or of assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with in some fashion, the plaintiff, if he succeeds, will not be able to have his judgment satisfied (321 ‑ 322).

Case law on the jurisdiction to make a Mareva order against a non‑party to the principal litigation

In Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380, the respondent (LED) commenced proceedings in the Federal Court against Eagle Homes Pty Ltd (Eagle Homes) alleging infringement of LED's copyright in certain building plans. The shares in Eagle Homes were held by two individuals (the shareholders). LED obtained judgment against Eagle Homes in the infringement proceedings and elected for an account of profits. Before judgment, Eagle Homes declared and paid substantial dividends to the shareholders; the shareholders formed a new company (Ultra Modern) which commenced a housing construction business using new plans; and the business name of Eagle Homes was transferred to Ultra Modern. After judgment, LED applied to the primary judge for Mareva orders against, relevantly, the shareholders and Ultra Modern. The application was dismissed. The Full Court of the Federal Court allowed the appeal and remitted the matter to the primary judge. His Honour made orders restraining the shareholders and Ultra Modern, until further order, from disposing of or dealing with their money, property or other assets other than for specified purposes. The High Court allowed the appeal by the shareholders and Ultra Modern because the width of the primary judge's Mareva orders was unsustainable.
Gaudron, McHugh, Gummow and Callinan JJ accepted that a court's power to protect the integrity of its processes 'once set in motion' extends to preserving the efficacy of the enforcement of a judgment which may be obtained against an 'actual or prospective judgment debtor' [25]. Their Honours said that the protection of the administration of justice which this involves 'may, in a proper case, extend to asset preservation orders against third parties to the principal litigation' [25].
Later in their reasons [41], Gaudron, McHugh, Gummow and Callinan JJ set out a passage from the joint judgment of Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores [35]. The passage reproduced by their Honours includes the following:
The Mareva injunction is the paradigm example of an order to prevent the frustration of a court's process (Rahman (Prince Abdul) v Abu-Taha [1980] 1 WLR 1268 at 1272; [1980] 3 All ER 409 at 411; Mercedes Benz AG v Leiduck [1996] AC 284 at 299, 306 ‑ 307) but other examples may be found (Gibbs v David (1875) LR 20 Eq 373 at 377 ‑ 378; Hatton v Car Maintenance Co Ltd [1915] 1 Ch 621 at 624 ‑ 625; Heavener v Loomes (1924) 34 CLR 306 at 326; Hannam v Lamney (1926) 43 WN (NSW) 68; Riley McKay Ply Ltd v McKay [1982] 1 NSWLR 264 at 276). The moulding of an interlocutory injunction must depend upon the circumstances of each case. As Brennan J observed in Jackson v SterlingIndustries Ltd((1987) 162 CLR 612 at 621): 'A judicial power to make an interlocutory order in the nature of a Mareva injunction may be exercised according to the exigencies of the case and, the schemes which a debtor may devise for divesting himself of assets being legion, novelty of form is no objection to the validity of such an order.' The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked (See Tait v TheQueen (1962) 108 CLR 620) [35].
Gaudron, McHugh, Gummow and Callinan JJ said that, subject to two qualifications, the passage in Patrick Stevedores should be accepted as a correct statement of principle [42]. The first qualification was that in the passage the court's attention was directed to orders against parties to the principal litigation and, in that situation, the focus is the frustration of the court's process. However, if relief is available against non‑parties to the principal litigation, the focus must be the administration of justice [42]. The second qualification was that it is preferable to refer to 'Mareva orders' instead of 'Mareva injunctions' to avoid confusion as to the doctrinal basis of the relief [42].
The first qualification reflects the proposition that, although a plaintiff has a personal interest in ensuring that a prospective judgment can be enforced effectively, attempts by parties and non‑parties to the principal litigation to prevent or undermine the effective enforcement of a prospective judgment raises broader issues of public policy in relation to the administration of justice. See, generally, Devonshire P, 'Freezing Orders, Disappearing Assets and the Problem of Enjoining Non‑Parties' (2002) 118 Law Quarterly Review 124, 136 ‑ 139.
The second qualification reflects the proposition that a Mareva order is not an injunctive remedy based on the exercise of the power deriving from the Court of Chancery. See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 [94] (Gummow & Hayne JJ).
In Cardile, their Honours accepted that the development of the jurisdiction to grant Mareva relief has been an 'evolving process' and the courts have approached with flexibility the different facts and circumstances which have arisen in the cases. However, their Honours warned:
There is a temptation to use the term 'flexible' to cloak a lack of analytical rigour and to escape the need to find a doctrinal and principled basis for orders that are made. There are significant differences between an order protective of the court's process set in train against a party to an action, including the efficacy of execution available to a judgment creditor, and an order extending to the property of persons who are not parties and who cannot be shown to have frustrated, actually or prospectively, the administration of justice. It has been truly said that a Mareva order does not deprive the party subject to its restraint either of title to or possession of the assets to which the order extends (Re Ling; Ex parte Enrobook PtyLtd(1996) 142 ALR 87 at 92); affd (1997) 74 FCR 19 at 29). Nor does the order improve the position of claimants in an insolvency of the judgment debtor (Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 618, 639). It operates in personam (Mercedes Benz AG v Leiduck [1996] AC 284 at 300) and not as an attachment [50].
Gaudron, McHugh, Gummow and Callinan JJ stressed that a court which is invited to make a Mareva order should exercise a high degree of caution before making it [50] ‑ [52].
Their Honours then gave attention to the discretionary factors that should be weighed carefully before a Mareva order is made:
Has the applicant proceeded diligently and expeditiously? Has a money judgment been recovered in the proceedings? Are proceedings (for example, civil conspiracy proceedings) available against the third party? Why, if some proceedings are available, have they not been taken? Why, if proceedings are available against the third party and have not been taken and the court is still minded to make a Mareva order, should not the grant of the relief be conditioned upon an undertaking by the applicant to commence, and ensure so far as is possible the expedition of, such proceedings? It is difficult to conceive of cases where such an undertaking would not be required. Questions of this kind may be just as relevant to the decision to grant Mareva relief as they are to a decision to dissolve it. These are matters to which courts should be alive [53]. (emphasis added)
The part of this passage that I have emphasised indicates that a court will not be deprived of jurisdiction to make a Mareva order against a non‑party to the principal litigation merely because the applicant for the order has not commenced proceedings against the non‑party.
Gaudron, McHugh, Gummow and Callinan JJ enunciated the principle which governs the determination by a court of an application for a Mareva order against a non‑party to the principal litigation as follows:
In our opinion such an order may, and we emphasise the word 'may', be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which: (i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including 'claims and expectancies' (the phrase used by Deane J in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 625), of the judgment debtor or potential judgment debtor; or (ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor [57].

Case law on the jurisdiction to make a Mareva order in relation to a prospective foreign judgment where no substantive proceedings, apart from the application for the Mareva order, have been or are to be commenced in the place where the Mareva order is sought and there is no judgment in the foreign proceedings

Courts have made Mareva orders with transnational aspects. Mareva relief will have a transnational aspect if, for example:
(a)the party or non‑party to the principal litigation who is affected by the orders is not domiciled or resident within the court's jurisdiction;
(b)the orders relate to property situated outside the court's jurisdiction; or
(c)the orders relate to property within the court's jurisdiction but the orders are made in aid of the possible registration or enforcement in the court of an actual or prospective foreign judgment.
The English cases must be approached with caution.
First, the doctrinal basis on which the English courts have granted Mareva relief is materially different from the doctrinal basis in Australia. In England, prior to legislative amendment, the granting of Mareva relief was tied to the power (equitable or statutory) of the courts to grant injunctions to protect a plaintiff's private rights or interests. See s 37(1) and (3) of the Supreme Court Act 1981 (UK) (now called the Senior Courts Act 1981 (UK)). In Mercedes Benz AG v Leiduck [1996] AC 284, Lord Mustill, who delivered the advice of the majority of the Privy Council, said 'the Mareva injunction is … a special exception to the general law' (301).
Secondly, some of the English cases have involved courts granting Mareva relief with transnational aspects in reliance on, relevantly:
(a)s 25 of the Civil Jurisdiction and Judgments Act 1982 (UK), as extended by the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (UK), SI 1997/302, which expressly empowers an English court to grant interim relief in the absence of substantive proceedings unless 'in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subject‑matter of the proceedings in question makes it inexpedient for the court to grant it'; and
(b)r 6.33 of the Civil Procedure Rules 1998 (UK), which permits service out of the jurisdiction in aid of interim proceedings under s 25 of the Civil Jurisdiction and Judgments Act 1982 (UK).
See, for example, Motorola Credit Corporation v Uzan (No 2) [2004] 1 WLR 113.
The history of some of the statutory and case law developments of the Mareva jurisdiction in England is outlined by Millett LJ (Lord Bingham of Cornhill CJ and Potter LJ agreeing) in Credit Suisse Fides Trust SA v Cuoghi [1998] QB 818, 824 ‑ 825.
In Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, Lord Browne-Wilkinson (Lord Keith of Kinkel and Lord Goff of Chieveley agreeing) analysed the speech of Lord Diplock in Siskina (Owners of cargo lately laden on board) v Distos Compania Naviera SA [1979] AC 210 in relation to s 37(1) of the Supreme Court Act 1981 (UK) and RSC O 11 r 1.
Section 37(1) provided that the High Court may 'by order (whether interlocutory or final) grant an injunction … in all cases where it appears to the court to be just and convenient to do so'. RSC O 11 r 1 permitted service out of the jurisdiction when the writ claimed an injunction against the defendants dealing with their assets within the jurisdiction.
Lord Browne‑Wilkinson considered whether the decision in The Siskina imposed a 'third limit' on the power of an English court to grant an interlocutory injunction. The alleged 'third limit' was that the interlocutory injunction must be ancillary to a claim for substantive relief to be granted by an English court in England. His Lordship concluded that The Siskina did not impose the so‑called 'third limit' as asserted by the respondents in Channel Group:
[T]he Siskina does not impose the third limit on the power to grant interlocutory injunctions which the respondents contend for. Even applying the test laid down by the Siskina the court has power to grant interlocutory relief based on a cause of action recognised by English law against a defendant duly served where such relief is ancillary to a final order whether to be granted by the English court or by some other court or arbitral body (343).
It is plain from the context that his Lordship's reference to 'some other court' was to a foreign court.
In Mercedes Benz, the appellant advanced US$20 million to the first respondent (a German national) and a Monegasque company owned by him to finance the sale of 10,000 vehicles in the Russian Federation. The advance was secured by a promissory note of the company for US$20 million plus interest, and the first respondent gave his personal guarantee by way of aval. The transaction did not proceed, the advance was not repaid and the promissory note was dishonoured.
The appellant commenced proceedings against the first respondent in Monaco to recover the advance. The Monaco court, on the appellant's application, attached the first respondent's assets in Monaco pending judgment, but refused to extend the order to the first respondent's shares in the second respondent, a company registered in Hong Kong, which the appellant claimed had received part of the advance.
The appellant applied ex parte to the High Court of Hong Kong for a worldwide Mareva order restraining both respondents from dealing with any of their assets, including the first respondent's shares in the second respondent. A deputy judge of the Hong Kong court granted the application on terms. The terms included that the appellant issue a writ of summons against both respondents. The deputy judge gave leave for the first respondent to be served in Monaco. The appellant's writ claimed monetary and other relief, but did not claim any Mareva or injunctive relief. The first respondent applied to the High Court of Hong Kong for the discharge of the ex parte order on the ground that the court had no jurisdiction over him. A judge held that none of the claims in the appellant's writ fell within the Hong Kong court's power to permit service of proceedings out of the jurisdiction. He quashed the leave to serve and set aside the Mareva order.
The Court of Appeal of Hong Kong dismissed the appellant's appeal. On appeal, the appellant did not assert that it should have leave to serve the proceedings on the first respondent in Monaco for substantive relief against him. Rather, it asserted that the Court of Appeal should order service of the proceedings on the first respondent in Monaco for a Mareva order only. The Court of Appeal held, relevantly, that even if the writ had claimed Mareva relief, the Hong Kong court's power under its rules of court would not have permitted service on the first respondent in Monaco, in part, because the provisions of the rules permitting service of a writ 'to enforce any judgment' could not be relied on before judgment had actually been obtained in Monaco.
A majority of the Privy Council dismissed the appellant's further appeal.
Lord Mustill, in delivering the advice of the majority, identified two questions. First, whether the Hong Kong court had power to grant a Mareva order against the first respondent. Secondly, whether the Hong Kong court had jurisdiction over the first respondent when he was resident in Monaco and there was no claim for any substantive relief against him or any other person or entity in the Hong Kong proceedings.
Lord Mustill held that, in the absence of a comparable statutory provision to s 25 of the Civil Jurisdiction and Judgments Act 1982 (UK), the Hong Kong court had no jurisdiction to make a Mareva order against a foreign defendant who was not subject to the jurisdiction of the Hong Kong court in aid of proceedings being prosecuted against the foreign defendant in Monaco (304). Since the appellant had not made any claim for substantive relief which could properly be tried in Hong Kong, he could not compel the first respondent to appear before the Hong Kong court to contest the application for Mareva relief. Accordingly, the Hong Kong court did not have power to permit service of a writ claiming such relief (296, 299, 301 ‑ 302, 304). It was unnecessary, in the circumstances, to decide the first question.

The general purpose or object of the Foreign Judgments Act is to facilitate and simplify the enforcement in Australia of certain foreign judgments to which the Act extends. When the Foreign Judgments Act commenced on 27 October 1991 it rendered ineffective all State and Territory legislation which at that time provided for the registration and enforcement of foreign judgments. The Foreign Judgments Act establishes 'a nationwide Commonwealth‑State co‑operative scheme' in which each jurisdiction is in effect regarded 'as identical to each other, and hence with results akin to what might have been achieved by a wholly Commonwealth scheme'. See Re SA Cryonic Medical [2002] VSC 338 [8] (Nettle J).
In Quarter Enterprises Pty Ltd v Allardyce Lumber Co Ltd [2014] NSWCA 3; (2014) 85 NSWLR 404, Bathurst CJ (Gleeson JA & Sackville AJA agreeing) said in relation to the Foreign Judgments Act:
[T]he object of the Act is to facilitate registration of foreign judgments of particular recognised courts. There is no reason in a period of increasing international trade with the corresponding likelihood of further cross‑border disputes to treat registered judgments any differently to judgments of domestic courts. In this context it must be remembered that the Act was intended to facilitate the enforcement of foreign judgments [138].
By O 52A r 5 of the Supreme Court Rules:
(a)The Supreme Court may make a freezing order against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because, relevantly, the assets of the judgment debtor or prospective judgment debtor might be removed from Australia or from a place inside or outside Australia or might be disposed of, dealt with or diminished in value.
(b)This power to make a freezing order applies if, relevantly:
(i)an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in another court;
(ii)there is a sufficient prospect that the other court will give judgment in favour of the applicant; and
(iii)there is a sufficient prospect that the judgment of the other court will be registered in or enforced by the Supreme Court.
The purpose or object of O 52A r 5 is to protect the Supreme Court's registration and enforcement processes from abuse. The abuse includes a judgment or prospective judgment of a foreign court to which pt 2 of the Foreign Judgments Act extends (as to which there is a sufficient prospect that the judgment or the prospective judgment, if given, will be registered in or enforced by the Supreme Court) being rendered nugatory as a result of the judgment debtor or prospective judgment debtor:
(a)removing its assets from Australia or from a place inside or outside Australia; or
(b)disposing of, dealing with or diminishing the value of its assets.
There is no reason in principle why the rule making provision in s 17(1) should not support provisions authorising the granting of Mareva relief in relation to both actual and prospective judgments of foreign courts to which pt 2 of the Foreign Judgments Act extends. When the Supreme Court makes a freezing order in respect of a prospective foreign judgment, the court does not purport to register the prospective judgment. Similarly, the making of a freezing order does not involve the anticipatory enforcement of the prospective foreign judgment.
The granting of Mareva relief will frequently involve a court acting before the entry of a substantive judgment. This reflects the essential nature of the remedy. There is, of course, a requirement that the applicant for a Mareva order have a sufficient prospect of obtaining a judgment in the principal litigation. However, the possibility that the applicant may be unsuccessful in the principal litigation, and may never obtain a judgment, has never defeated the power of a superior court to grant Mareva relief. The power conferred by s 17(1) is not confined to the making of procedural rules that apply only upon a foreign judgment being obtained.
In my opinion, O 52A (in particular, O 52A r 5), to the extent it relates to a judgment or prospective judgment of foreign courts to which pt 2 of the Foreign Judgments Act extends, is conducive to, and does not detract from, the operation of the Foreign Judgments Act. More specifically, O 52A is conducive to, and does not detract from, the reciprocity of the scheme embodied in pt 2 which includes, when read with the Foreign Judgments Regulations, the registration of money judgments given by the High Court of Singapore and the enforcement of them as though they were Australian domestic judgments.
The scheme embodied in pt 2 of the Foreign Judgments Act, when read with the Foreign Judgments Regulations, in relation to the registration of money judgments given by the High Court of Singapore is reciprocated in Singaporean legislation. See the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264) and the declaration under s 5 of that Act made on 24 September 1993.
Where proceedings for substantive or final relief are pending in the court in which an application for a Mareva order is made and Mareva relief is granted, the Mareva relief is ancillary or incidental to the jurisdiction of the court in relation to the proceedings for substantive or final relief. The Mareva relief is also ancillary or incidental to the prospective invocation of the court's enforcement processes in relation to the prospective judgment, and immediately prevents the court's processes from being abused or frustrated by, and immediately protects the administration of justice from, a presently existing danger.
Where proceedings for substantive or final relief are pending in a foreign court and an application is made under O 52A for a freezing order and the Supreme Court grants the freezing order, the making of the freezing order:
(a)is ancillary or incidental to the prospective invocation of the Supreme Court's registration and enforcement processes in relation to the prospective foreign judgment; and
(b)immediately prevents the Supreme Court's processes from being abused or frustrated by, and immediately protects the administration of justice from, a presently existing danger.
Freezing orders made under O 52A (in particular, O 52A r 5) in connection with judgments or prospective judgments of foreign courts to which pt 2 of the Foreign Judgments Act extends are not made in support of foreign proceedings. The process which the rules relevantly protect is the registration and enforcement process under the Foreign Judgments Act. See Severstal Export [53].
Order 52A (in particular, O 52A r 5), to the extent it relates to judgments or prospective judgments of foreign courts to which pt 2 of the Foreign Judgments Act extends, complements the registration and enforcement jurisdiction which the Foreign Judgments Act vests in the Supreme Court and other Australian superior courts. The rules prevent the efficacy of the scheme for registration and enforcement under the Foreign Judgments Act from being thwarted. The rights created by the Foreign Judgments Act will be of no practical utility if the Australian assets of the judgment debtor or prospective judgment debtor, against which a registered judgment or prospective registered judgment, if given, is likely to be enforced, are removed from the jurisdiction or their value is materially diminished.
Order 52A (in particular, O 52A r 5), to the extent it relates to judgments or prospective judgments of foreign courts to which pt 2 of the Foreign Judgments Act extends, is properly characterised as delegated legislation prescribing matters ancillary or incidental to the registration and enforcement provisions of the Act. As I have mentioned, in Jackson (High Court) Brennan J said Mareva relief is 'a remedy which is incidental to the exercise by a court of its jurisdiction to enter judgment for a debt or damages and which is designed to prevent the defendant from divesting himself of his assets whereby enforcement of such judgment might be frustrated' (621) (emphasis added).
It is plain that the Supreme Court has jurisdiction to register and enforce a money judgment of the High Court of Singapore. Order 52A (in particular, O 52A r 5), to the extent it relates to judgments or prospective judgments of foreign courts to which pt 2 of the Foreign Judgments Act extends, is ancillary or incidental to that jurisdiction. The rules do not extend the scope or general operation of the Act.
Order 52A (in particular, O 52A r 5), to the extent it relates to judgments or prospective judgments of foreign courts to which pt 2 of the Foreign Judgments Act extends, is necessary or convenient for giving effect to (that is, making efficacious) the provisions of the Act with respect to the registration and enforcement of the foreign judgments to which pt 2 extends. The rules are not inconsistent with the Foreign Judgments Act or with any regulations made under the Act. They prescribe matters necessary or convenient to be prescribed for giving effect to the Foreign Judgments Act, within s 17(1) of the Act.
I am therefore of the opinion that O 52A of the Supreme Court Rules, to the extent it authorises the Supreme Court to make a freezing order in relation to a prospective foreign judgment to which pt 2 of the Foreign Judgments Act extends, where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court and there is no judgment in the foreign proceedings, is not ultra vires s 17 of the Foreign Judgments Act.
This conclusion is sufficient to require that the appeals be dismissed. However, for the sake of completeness, I will consider a number of other matters that were fully argued.

The merits of the appeals: is O 52A, to the extent it authorises the Supreme Court to make a freezing order in relation to foreign proceedings where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court and there is no judgment in the foreign proceedings, within the Supreme Court's inherent jurisdiction, further or alternatively its jurisdiction under s 16(1)(d)(i) of the Supreme Court Act?

The distinction between 'jurisdiction' and 'power' has been made repeatedly in the High Court. See, for example, the cases cited in Osland v Secretary, Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320 [19] fn 49 (French CJ, Gummow & Bell JJ).
In Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485, Gaudron, Gummow and Hayne JJ said that 'jurisdiction' is a generic term which is used in a variety of senses, 'some relating to geography, some to persons and procedures, others to constitutional and judicial structures and powers' [78]. Their Honours added that the phrase 'inherent jurisdiction', 'used in relation to such things as the granting of permanent stays for abuse of process, identifies the power of a court to make orders of a particular description' [78].
Similarly, in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559, Gleeson CJ, Gaudron and Gummow JJ observed that 'jurisdiction' and 'power' are not discrete concepts [64]. Their Honours elaborated:
The term 'inherent jurisdiction' may be used, for example in relation to the granting of stays for abuse of process, to describe what in truth is the power of a court to make orders of a particular description (Williams v Spautz (1992) 174 CLR 509 at 518 ‑ 519) [64].
The Supreme Court is a superior court of record.
The inherent jurisdiction of a superior court of record has been described as something which flows from the essential character of such a court. See Jacob IH, 'The Inherent Jurisdiction of the Court' (1970) 23 Current Legal Problems 23, 27; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 87 ALJR 458 [41] (French CJ).
In Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1, Dawson J (Mason CJ, Brennan & Toohey JJ agreeing) explained:
Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical. See Yale Law Journal, vol 57 (1947) 83, at p 85, cited by Jacob, 'The Inherent Jurisdiction of the Court', Current Legal Problems, vol 23 (1970) 23, at p 27. But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster (16).
By s 16(1)(a) of the Supreme Court Act, subject as otherwise provided in the Act and to any other enactment in force in Western Australia, the Supreme Court is invested with and shall exercise 'such and the like jurisdiction, powers, and authority within Western Australia … as the Courts of Queen's Bench, Common Pleas, and Exchequer, or either of them, and the judges thereof, had and exercised in England at the commencement of the Supreme Court Ordinance 1861'. See also s 16(1)(d)(i) of the Act.
This grant of jurisdiction to the Supreme Court attracted the inherent power necessary to the effective exercise of the jurisdiction. The inherent power arises from the general responsibility of a superior court of unlimited jurisdiction for the administration of justice. See Grassby (16 ‑ 17); Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 [50] (Gaudron, Gummow & Callinan JJ); Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268 [36] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ agreeing).
The inherent power of the courts has underpinned the development of procedural innovations including Mareva orders. See Al Rawi v Security Service [2012] 1 AC 531 [20] (Lord Dyson JSC); Pompano [47].
In my opinion, O 52A, to the extent it authorises the Supreme Court to make a freezing order in relation to foreign proceedings where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court and there is no judgment in the foreign proceedings, is within the Supreme Court's inherent jurisdiction. My reasons are as follows.
First, the doctrinal basis of Mareva relief lies in the power of a superior court to prevent the abuse or frustration of its processes and to protect the administration of justice.
A Mareva order is not an interlocutory injunction. An applicant for a freezing order is therefore not required to satisfy the test applicable to the grant of interlocutory injunctive relief, as to which see Lenah Game Meats [15] ‑ [16] (Gleeson CJ), [60] (Gaudron J) and [91] (Gummow & Hayne JJ).
Secondly, the purpose or object of the Supreme Court in making a freezing order under O 52A is the prevention of the abuse or frustration of its processes and the protection of the administration of justice in relation to:
(a)the enforcement of judgments and prospective judgments of the Supreme Court; and
(b)relevantly, the registration and enforcement of judgments and prospective judgments of foreign courts,
by seeking to meet a presently existing danger that such a judgment or prospective judgment will be wholly or partly unsatisfied because any of the matters specified in O 52A r 5(4) might occur.
A freezing order is not made in respect of a prospective foreign judgment for the purpose or with the object of protecting the processes of the foreign court.
Thirdly, O 52A permits the Supreme Court to make a freezing order in relation to a judgment or prospective judgment of a foreign court only where there is a nexus between the actual or prospective judgment of the foreign court and the Supreme Court's enforcement processes. By O 52A r 5(3) there must be a 'sufficient prospect' that the foreign court will give judgment on a prospective cause of action in favour of the applicant. Also, there must be a 'sufficient prospect' that the judgment, if given, will be registered in or enforced by the Supreme Court. Further, there must be a presently existing danger that the judgment, if given, will be wholly or partly unsatisfied because any of the matters specified in O 52A r 5(4) might occur. This nexus is sufficient to ensure that the relevant provisions of O 52A do not exceed the territorial limitations upon the State of Western Australia's legislative power. See Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 14 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey & Gaudron JJ).
Fourthly, to the extent O 52A extends to prospective judgments, its provisions are consistent with the decision of the High Court in Cardile [25]. There is no reason in principle why a freezing order should be available in respect of a prospective domestic judgment but should not be available in respect of a prospective foreign judgment if there is a sufficient prospect that the prospective judgment, if given, will be registered in and enforced by the Supreme Court.
Fifthly, the making of a freezing order under O 52A is discretionary. Discretionary factors, including those referred to by Gaudron, McHugh, Gummow and Callinan JJ in Cardile [53], are relevant to whether, in a particular case, the Supreme Court should exercise its inherent jurisdiction to make a freezing order. Such factors are not relevant to whether the court has inherent jurisdiction to grant relief.
Sixthly, it is true that the High Court has made statements as follows:
(a)'[t]he counterpart of a court's power to prevent (original emphasis) its processes being abused is its power to protect (original emphasis) the integrity of those processes once set in motion (emphasis added) (see, eg with respect to the power to grant a Mareva injunction, Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 619, 621, 639; Witham v Holloway (1995) 183 CLR 525 at 535. See also Ridgeway v The Queen (1995) 184 CLR 19 at 60)': CSR vCigna (391); and
(b)'the court may make [Mareva orders], at least against the parties to the proceedings against whom final relief might be granted (emphasis added), as are needed to ensure the effective exercise of the jurisdiction invoked': Patrick Stevedores [35].
Those statements were referred to with approval in Cardile [25], [41]. Also, in Cardile, Gaudron, McHugh, Gummow and Callinan JJ referred to 'an order protective of the court's process set in train against a party to an action' (emphasis added) [50]. See also their Honours' comments at [40]. Further, see Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9], where Gleeson CJ, Gummow, Hayne & Crennan JJ referred with approval to the statement in CSR v Cigna.
In Jackson (High Court), the applicant applied for and the Federal Court granted Mareva relief after the applicant had commenced substantive proceedings in that court claiming damages for contravention of s 52 of the Trade Practices Act 1974 (Cth). Similarly, in each of Witham and Patrick Stevedores the plaintiff applied for, and an Australian superior court granted, Mareva or Mareva type relief after the plaintiff had commenced substantive proceedings on a cause of action in that court. However, in Cardile the Federal Court granted Mareva relief against a non‑party to the principal litigation even though there were no subsisting proceedings against the non‑party. In the High Court, Gaudron, McHugh, Gummow and Callinan JJ referred to the applicant's failure to have commenced proceedings against the third party but in the context of the need for care in exercising the power to grant a Mareva order [50] ‑ [52] and in the context of discretionary considerations [53].

The statements made by the High Court in Jackson (High Court), Witham, CSR v Cigna, Patrick Stevedores and Cardile must be understood by reference to the facts and circumstances that pertained in those cases. None of the decisions was concerned with an application to an Australian superior court for Mareva relief in relation to a prospective foreign judgment where substantive proceedings, apart from the application for the Mareva order, had not been and were not to be commenced in the superior court and there was no judgment in the pending foreign proceedings. The statements of the High Court were made in the context of those facts and circumstances and, in my opinion, were not intended to circumscribe the doctrinal basis of Mareva relief, namely the prevention of the abuse or frustration of a superior court's processes and the protection of the administration of justice. The High Court did not exhaustively state the ambit or limits applicable to the making of Mareva orders in any and all circumstances.
The Supreme Court's inherent jurisdiction in relation to Mareva relief continues to be an evolving process that will develop in response to particular facts and circumstances. See Jackson (High Court) (632 ‑ 633); Cardile [50]. On my reading and understanding of the High Court authorities on Mareva relief, the High Court has not held that an Australian superior court lacks inherent jurisdiction to make a Mareva order in relation to foreign proceedings where no substantive proceedings, apart from the application for the Mareva order, have been or are to be commenced in the superior court and there is no judgment in the pending foreign proceedings. The High Court has not expressly considered the power of a superior court to make a Mareva order in respect of the possible registration and enforcement of a foreign judgment.
Seventhly, the view of Murray J in Raveh to the effect that a worldwide Mareva order obtained in Israel 'may not be replicated in [the Supreme Court] as an exercise of the power to grant interlocutory relief because it has, and can have, no connection with the enforcement of a substantive right in proceedings taken by the plaintiff in this court', to the extent it relates to the Supreme Court's inherent jurisdiction in relation to Mareva relief, should not be followed [27]. His Honour's view was based on or materially influenced by the incorrect premise that a Mareva order is an interlocutory injunctive remedy [18] ‑ [23], [26] ‑ [27].
Eighthly, it is not a jurisdictional precondition to the Supreme Court granting Mareva relief that substantive proceedings have been commenced in the Supreme Court or that substantive proceedings will imminently be commenced in the court. The absence of substantive proceedings, apart from the application for a Mareva order, is relevant only to the exercise of the Supreme Court's discretion to make or refuse the order. The prevention of the abuse or frustration of the Supreme Court's processes, and the protection of the administration of justice, in the circumstances and on the conditions specified in O 52A is a sufficient jurisdictional basis for making a freezing order.
The Supreme Court's inherent jurisdiction to grant Mareva relief extends to the making of a 'freestanding' freezing order in respect of a prospective foreign judgment under and subject to the provisions of O 52A. The jurisdiction is not dependent on the existence of a 'worldwide' Mareva order made by a foreign court.
As I have mentioned, the making of a 'freestanding' freezing order in respect of a prospective foreign judgment under and subject to the provisions of O 52A is ancillary or incidental to the prospective invocation of the Supreme Court's registration and enforcement processes in relation to the prospective foreign judgment, and immediately prevents the Supreme Court's processes from being abused or frustrated by, and immediately protects the administration of justice from, a presently existing danger.
The Supreme Court has jurisdiction to enforce a money judgment given by the High Court of Singapore. The Freezing Orders are purely territorial; that is, they relate solely to Bayan's assets in Western Australia.
Ninthly, the Supreme Court's inherent jurisdiction to grant Mareva relief, by making a freezing order in respect of a prospective foreign judgment under and subject to the provisions of O 52A, is not qualified or restricted by a precondition that the applicant for relief must have previously sought a Mareva order against the defendant in the foreign court in which the substantive proceedings are pending. For example, in the present case, Bayan's only known assets outside Indonesia are located in Western Australia. The fact that the High Court of Singapore may be able to bind Bayan in personam by an order which prevents Bayan from dealing with its Western Australian assets until the determination of the principal litigation does not detract from the Supreme Court's jurisdiction to prevent Bayan from dealing with those assets under and subject to the provisions of O 52A. Even if Bayan had assets in Singapore, there is no reason in principle why BCBCS should be required to enforce any judgment it may obtain in Singapore instead of in Western Australia.
The issue of comity between Australia and the country of a foreign court may, depending on the particular facts and circumstances, be relevant to the exercise of the Supreme Court's discretion under O 52A. However, in the present case, the Freezing Orders, which protect the registration and enforcement processes of the Supreme Court, will incidentally ensure that any prospective judgment, if given, of the High Court of Singapore will have practical efficacy. The Freezing Orders do not on any reasonable view impeach comity between Australia and Singapore.
BCBCS's case based on the existence of an inherent jurisdiction in the Supreme Court to make the Freezing Orders has not been derailed by the primary judge's rejection of its claim for interim relief against KRL.
It is unnecessary to decide whether the Supreme Court has jurisdiction under s 16(1)(d)(i) of the Supreme Court Act to make a freezing order under O 52A in the circumstances in question.

The merits of the appeals: is O 52A, to the extent it authorises the Supreme Court to make a freezing order in relation to a prospective foreign judgment where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court and there is no judgment in the foreign proceedings, ultra vires s 167(1)(a) of the Supreme Court Act?

Section 167(1)(a) of the Supreme Court Act provides that rules of court may be made 'for regulating and prescribing the procedure … and the practice to be followed in the Supreme Court in all causes and matters whatsoever in or with respect to which the court has for the time being jurisdiction … and any matters incidental to or relating to any such procedure or practice'.
Order 52A regulates and prescribes the procedure and practice (including matters incidental to or relating to such procedure or practice) to be followed in the Supreme Court where the Supreme Court's inherent jurisdiction to make a freezing order (including a freezing order in the circumstances in question) is sought to be invoked.
Section 167(1)(a) therefore authorised the making of O 52A.

The merits of the appeals: is O 52A, to the extent it authorises the Supreme Court to make a freezing order in relation to foreign proceedings where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court and there is no judgment in the foreign proceeding, inconsistent with the Foreign Judgments Act for the purposes of s 109 of the Commonwealth Constitution?

Bayan does not assert that there is any direct inconsistency between O 52A and the Foreign Judgments Act. It relies on the alleged existence of indirect inconsistency.
The critical question is:
(a)whether the Federal Parliament, in enacting the Foreign Judgments Act, evinced an intention to deal completely and thus exclusively with the law governing when and in what circumstances foreign judgments may be enforced including when and in what circumstances Mareva relief may be granted in respect of a foreign judgment; and
(b)whether O 52A is upon the same subject matter as the Foreign Judgments Act and, if so, whether O 52A is inconsistent with the Act because O 52A detracts from, impairs or negates the operation of the Act.
See Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [261] (Gummow J). See also Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491 [13] ‑ [14] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ); Jemena Asset Management (3) Pty Ltd v Coinvest Ltd [2011] HCA 33; (2011) 244 CLR 508 [39] ‑ [42] (French CJ, Gummow, Heydon, Crennan, Kiefel & Bell JJ).
In my opinion, for the following reasons, O 52A, to the extent it authorises the Supreme Court to make a freezing order in relation to a prospective foreign judgment where no substantive proceedings, apart from the application for the freezing order, have been or are to be commenced in the Supreme Court and there is no judgment in the foreign proceedings, is not inconsistent with the Foreign Judgments Act for the purposes of s 109 of the Commonwealth Constitution.
First, the Foreign Judgments Act does not expressly evince an intention to exclude the operation of State laws in relation to all aspects of the enforcement of foreign judgments.
Secondly, the Foreign Judgments Act is not, as Bayan asserts, a complete federal legislative scheme as to when foreign judgments are to be enforced. It is true that the Foreign Judgments Act was enacted to provide a framework for the enforcement of foreign civil judgments in Australia by a simple registration process and, in doing so, the Federal Parliament replaced the State and Territory based registration system which had previously applied. However, the Foreign Judgments Act does not exclusively prescribe the measures which the Supreme Courts of the States and Territories and the Federal Court may take or implement when exercising jurisdiction under the Foreign Judgments Act to enforce foreign judgments. In particular, the Foreign Judgments Act does not prescribe matters of practice or procedure (including pre‑action or pre‑judgment matters of practice or procedure) which are to be adopted or followed by the Supreme Courts of the States and Territories and the Federal Court. The Foreign Judgments Act expressly preserves the registering court's 'control over the enforcement of a registered judgment' (s 6(7)(d)) as if the judgment had been originally given in the registering court and entered on the date of registration. See s 6(7). Apart from defining in s 3 what is meant by 'enforcement', the Foreign Judgments Act does not address the processes or requirements for enforcement. These matters are left to the control of the registering courts.
Thirdly, the machinery for enforcing a registered foreign judgment that is a money judgment lies with the Supreme Court or Courts in which the judgment is registered, and the Foreign Judgments Act expressly contemplates that the registered foreign judgment will be enforced under the rules of the registering court or courts (see s 6(7), s 17 and s 20). Section 17(1) of the Foreign Judgments Act expressly confers a rule making power on superior courts and, significantly, s 17(2) states that this rule making power 'does not affect any power to make rules under any other law'. The rule making power in s 17(1) is non‑exhaustive. The rule making power in s 167(1)(a) of the Supreme Court Act is within s 17(2). Accordingly, the Foreign Judgments Act is premised on each Supreme Court enforcing a registered foreign judgment that is a money judgment in accordance with the court's machinery for enforcement.
Fourthly, there is nothing in the Foreign Judgments Act which favours a construction that the Federal Parliament intended:
(a)to exclude the power of the Supreme Courts of the States and Territories and the Federal Court to grant Mareva relief to prevent the abuse or frustration of their processes and to protect the administration of justice, including in relation to the enforcement of foreign judgments and prospective foreign judgments, in the circumstances and on the conditions specified in O 52A; or
(b)that Mareva orders, as an established part of the armoury of Australian superior courts, should not be available to the Supreme Court of the States and Territories and the Federal Court, in appropriate circumstances, in relation to prospective foreign judgments.
Fifthly, the power of the Supreme Court to make a freezing order under O 52A in the circumstances in question does not detract from, impair or negate the operation of the Foreign Judgments Act, but supports the Supreme Court's capacity to prevent the abuse or frustration of its processes in the circumstances in question in the same manner it does in the ordinary exercise of the Supreme Court's power to prevent the abuse or frustration of its processes.
Sixthly, the exercise of the Supreme Court's discretion to make a freezing order under O 52A in the circumstances in question does not have the effect of providing for the anticipatory enforcement of a prospective judgment in foreign proceedings, as asserted by Bayan. Although the exercise by the Supreme Court of its power under O 52A in the circumstances in question will involve the Supreme Court making a freezing order before a foreign judgment is given in the substantive proceedings, a freezing order does not provide security for any judgment that may be awarded. See Jackson (High Court) (619, 625 ‑ 626); Patrick Stevedores [73]; Cardile [43], [51]. The Supreme Court, in making a freezing order, prevents the abuse or frustration of its processes. The order does not involve the anticipatory enforcement of a foreign judgment in the substantive proceedings.
Seventhly, the fact that the Foreign Judgments Act does not recognise non‑money judgments given by the High Court of Singapore or any other foreign court does not compromise or impinge upon the Supreme Court's inherent jurisdiction to grant Mareva relief, at least in respect of prospective money judgments of foreign courts to which pt 2 of the Foreign Judgments Act extends. As I have noted, the prospective judgment sought by BCBCS against Bayan in the High Court of Singapore is a money judgment and Singapore has a reciprocal legislative scheme in relation to money judgments.
Also, there is no relevant inconsistency between the Trans‑Tasman Proceedings Act and O 52A. Section 26(1) of that Act, which confers power on some Australian courts to grant interim relief 'in support of' civil proceedings in a New Zealand court, is qualified by s 26(3), which provides that s 26 'does not affect any other powers of the Australian court to give interim relief in support of the New Zealand proceeding'.
Eighthly, s 109 of the Commonwealth Constitution is not directed to the displacement of the common law. See Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 [13] (Gummow A-CJ, Kirby, Hayne, Crennan & Kiefel JJ). Similarly, in my view, s 109 is not directed to the displacement of a superior court's inherent jurisdiction.

The displacement of such jurisdiction may occur, expressly or by implication, in a statute. However, the exclusion or curtailing of the inherent jurisdiction of a superior court requires unambiguous statutory language. See Johnson v Director‑General of Social Welfare (Vic) [1976] HCA 19; (1976) 135 CLR 92, 97 (Barwick CJ, Stephen & Mason JJ agreeing). For the reasons I have already given, the Federal Parliament did not, in enacting the Foreign Judgments Act, intend to displace the inherent jurisdiction of the Supreme Court in the circumstances in question.

Conclusion

I would dismiss the appeals.
MURPHY JA: I generally agree with Buss JA, for the reasons that his Honour gives, that these appeals should be dismissed, subject to one further matter. The primary judge was also correct, in my respectful view, to conclude that s 16(1)(d)(i) of the Supreme Court Act 1935 (WA) read within the context of the Supreme Court Act as a whole, also gave the court power to make the freezing orders in question. The true nature and purpose of a freezing order is to render the administration of justice effective, and to prevent abuse: Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380, 401 [42]; Perth Mint v Mickelberg (No 2) [1985] WAR 117, 118 (Burt CJ). 'Anton Pillar' orders serve a similar object: Simsek v Macphee [1982] HCA 7; (1982) 148 CLR 636, 640 ‑ 641; Cardile [116] (Kirby J).
Freezing or 'Mareva' type orders may be made prior to the commencement of substantive proceedings in the court, although the fact that proceedings have not been commenced is a factor relevant to the exercise of the court's discretion and the conditions (including the requirement for undertakings) upon which the court's power might be exercised: see Cardile [53]; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, 452 [52] ‑ [53].
The Foreign Judgments Act 1991 (Cth) (the Act) confers jurisdiction on the Supreme Court in relation to proceedings for the registration of a judgment to which pt 2 of the Act applies: s 6 of the Act. No proceedings other than proceedings by way of registration may be entertained by the court for recovering an amount payable under such a judgment (a 'part 2 judgment'): s 10 of the Act. The court must order the registration of a part 2 judgment, subject to the Act and to proof of the prescribed matters: s 6(3) of the Act. Relief is not discretionary.

In this context, the prospect that a judgment, based on a part 2 judgment, will be given by the Supreme Court in favour of an applicant for a freezing order may be no less assured than in many cases where, in what might be described as purely 'domestic' litigation, a plaintiff applies for such an order prior to or even after the commencement of substantive proceedings. In each case, the curial vindication of rights by the Supreme Court may be rendered inefficacious absent such an order. The fact that an order under s 6(3) is made pursuant to proceedings brought under the Act, rather than in proceedings involving the court's own examination of the merits of the underlying dispute between the parties, does not detract from the character of the order as a curial vindication of rights within Western Australia: s 6(7) of the Act.
In light of the foregoing, I would respectfully agree with the primary judge's decision and reasoning to the effect that the power to make the order in this case was supported by the power to 'administer justice' pursuant to s 16(1)(d)(i) of the Supreme Court Act: BCBC Singapore PTE Ltd v PT Bayan Resources TBK [No 3] [2013] WASC 239 [45] ‑ [48].