Pt Bayan Resources TBK v BCBC Singapore Pte Ltd & Ors

[2015] HCATrans 184

[2015] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P14 of 2015

B e t w e e n -

PT BAYAN RESOURCES TBK

Appellant

and

BCBC SINGAPORE PTE LTD

First Respondent

KANGAROO RESOURCES LIMITED

Second Respondent

ATTORNEY‑GENERAL OF WESTERN AUSTRALIA

Third Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 11 AUGUST 2015, AT 10.16 AM

(Continued from 10/8/15)

Copyright in the High Court of Australia

____________________

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   If it please the Court.  Your Honours, to pick up the threads from yesterday, I was addressing on the import, as we argue it, of the established doctrine according to the statements in this Court previously in relation to what used to be called Mareva injunctions and are now freezing orders.  There are two aspects that our citations and discussions of authority are intended to serve.  They relate to what might be called the two dimensions or characters of the kind of remedy involved.

The first goes to the identity of the court, here the Western Australian Supreme Court, asked to grant the remedy with the court in which the process to be protected is to be discerned.  We know here that there are two candidates.  If it is the Singapore court’s process to be protected, the Singapore court where there are proceedings on foot and where the respondents’ ambition is to get a money judgment and where the respondents’ fear is that the applicant may dissipate its Australian assets against which there may eventually be execution of the Singapore judgment.

So that is a view that sees the Singapore court’s process as the process to be protected, and it is to that we say, simply, that to date in this Court all the statements are against that being a situation in which the interim relief of a freezing order may go because the freezing order power to date has been described in this Court as being to protect the process of the Court being asked to issue the freezing order; that is the first point. 

The second point, of course, is raised by the alternative identification of the court whose process is to be protected, namely, that it is the Western Australian court’s process, the anticipated or prospective application under the Foreign Judgments Act.  That, of course, raises a temporal dimension or question.  Does the remedial power exist before the Western Australian process has been engaged allowing for the appropriate functional expansion of that concept to include the notion of imminence as I addressed yesterday, that is where all the matters that need to exist in order to bring an application already exist and the circumstances are so urgent that the clerical or registry task cannot be completed before the freezing order should be sought.

Now, in this case, of course, the facts could not be plainer that we are a very long way away from that occurring, and it may never occur.  I do not want to repeat what I said yesterday about the double or special form of contingency ‑ ‑ ‑

FRENCH CJ:   It is a bit of a straw man to talk about direct protection of proceedings in the Singapore court, is it not?  We are talking about the question of what is within the power of the Supreme Court of Western Australia in relation to the exercise of a jurisdiction conferred on it, namely, with respect to the registration and enforcement of a foreign judgment, albeit there may be a derivative – a consequence in relation to the Singapore proceedings.

MR WALKER:   With respect, yes.  I am not setting it up as a straw man, however.  It is raised, in particular, by the reliance on Davis, to which I will come, where there is, as it were, an elision of the whole distinction between the Singapore process and the Western Australian process and simply to say that in this day and age it ought to be that the Western Australian court helps the Singapore court.  So we say it is wrong, for the reasons we have already put, to invoke the process of the Singapore court as that which is to be protected, but we certainly are not setting it up as a straw man.

We accept that the proper analysis, for the reasons that I am about to briefly conclude by reference to the case law, the proper analysis is that one looks for a Western Australian substantive jurisdiction here under the Foreign Judgments Act in order to ask the question, is there a power to protect its exercise and its efficacy by the grant of this freezing order remedy?  Once one sees it that way, of course, the temporal question arises.  How far in advance of the Foreign Judgments Act application being able to be made does that freezing order remedy become available as a power of the Western Australian court?

Your Honours, I was in the course of drawing to your attention some passages in Jackson v Sterling Industries 162 CLR 612, tab 21 in the bundle of documents, at page 619. Of course, we would wish to emphasise, though the present issue was not in dispute of course in that case, at the foot of page 619 in the reasons of Justices Wilson and Dawson in the paragraph commencing “It has been a criticism”, the use of the possessive adjectives:

to protect its process from abuse in relation to the enforcement of its orders ‑

as being the integral – not incidental but integral requirement that there be an identity of the court whose process is to be protected with the court being asked to grant the freezing order relief.  Your Honours, if I could ask you then to turn in that authority to page 621 in the reasons of Justice Brennan who also agreed with Justice Deane, at the top of the page in the paragraph finishing on the top of that page about an inch down again you see the expression is:

a remedy which is incidental to the exercise by a court of its jurisdiction –

et cetera, and then the beginning of the next paragraph the sentence preceding the reference to the Siskina.  On page 622, also in the reasons now of Justice Deane, which might be regarded as the leading judgment in this authority, one sees that his Honour commences with a search for what his Honour calls “jurisdictional and other limits” with respect to this wide power, and his Honour uses the terminology that we have to a degree adopted in the second paragraph commencing “There may have been a time”, about three‑quarters of an inch down you see the reference to:

the exercise of the jurisdiction to entertain the substantive proceedings.

Now, in an ordinary commercial case that might be the debt action or the breach of contract claim, that which Singapore is entertaining between these parties.  In a Foreign Judgments Act Case the substantive proceeding is, of course, the application under the Foreign Judgments Act.  In the course of his Honour’s reference to the legal history one sees in the next paragraph commencing “Initially, injunctive orders” about an inch and a half down you see a reference to a perception during the course of that history to the power being “an incident of the substantive jurisdiction”.  Over the page on page 623, one sees one of the two widely quoted descriptions by his Honour, about halfway down the page in the second paragraph:

That general power should, however, now be accepted as 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.

Of course, we say that I stress, although this case was not attending to the doctrinal matter which divides the parties in this case, that is language which inherently requires the identity of court at the freezing order level and at the substantive level to which I have referred.  Hence, his Honour’s use of the expression further on in that paragraph “as an incident of the general grant to it”.  So it comes with the grant of jurisdiction; in this case it can come only with the grant of the federal jurisdiction under the Foreign Judgments Act.  Finally, can I take you to 625 in the same authority?  About an inch and a half from the bottom there is another widely quoted passage:

It 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.

Read ad subjecta materia for the Foreign Judgments Act, that means of course so as to frustrate the process of the court by depriving the plaintiff of the fruits of the enforcement that follows upon the registration of a foreign judgment.

Your Honours, the next authority to which briefly we would wish to go is Patrick Stevedores which, of course, largely concerned what might be regarded as other matters.  There is a passage, of course, taken up in Cardile to which I am about to come, that is 195 CLR 1 and it is at page 32 under the heading “Interlocutory relief”. It is tab 27 in the joint bundle. I do not need to dwell on it. Calling on or drawing on the passages and reasoning to which I have drawn attention in Jackson, their Honours paraphrase the matter at the foot of page 32 in paragraph 35:

The Mareva injunction is the paradigm example of an order to prevent the frustration of a court’s process –

Again, the identity question, and one finds on page 33 at the end of paragraph 35, again, the notion of the integral link between the freezing relief and the final relief sought as being necessary to ensure what is called:

the effective exercise of the jurisdiction invoked.

In passing, your Honours will recall, in CSR v Cigna, the anti‑suit injunction case, 189 CLR 345, tab 16 in the bundle, the concept was offered by this Court about three‑quarters of the way down that page, last paragraph on 391, of the, if you like, bookended ideas:

of a court’s power to prevent its processes being abused [and] its power to protect the integrity of those processes –

and, of course, as your Honours might expect, in this case I stress heavily the next phrase –

once set in motion.

So that is a sentence which, for our purposes, combines both the identity of the court granting the freezing order and the court whose substantive jurisdiction is being protected plus also the proper order of things, not the cart before the horse.  That is, that the processes once set in motion involve and give rise to a jurisdiction to protect them but not beforehand except in the exceptional case of emergency or imminence. 

FRENCH CJ:   You are seeking by these references to suggest that there is some sort of boundary around the power in cases which, of course, never had to address the particular question which we are concerned with.

MR WALKER:   There is no doubt about that.  I think I have volunteered that several times. 

FRENCH CJ:   Yes, indeed.

MR WALKER:   That gives rise to the question where there are, with great respect, closely considered expressions of reasons in this Court self‑consciously, if I may say so, pronouncing what had not been pronounced before.  Seeing in retrospect that which is inessential to the decision is, with respect, not so easy, and what I am trying to suggest is that the identity with the court being asked to grant the freezing relief and the court whose substantive jurisdiction would thereby be protected is no accident or incident – incidental matter.  It is inherent – it is a fundamental reason why the former power exists and why it is a power of the court with the latter power. 

So far as the temporal matter is concerned, that, as the Chief Justice has pointed out and as I hope I have volunteered, that also is not a matter which in the High Court cases has been a subject of controversy.  Equally, in our respectful submission, it cannot be said that the phrasing upon which we rely to say there is a temporal order which is definitional of the power in question, first the process then the protection, in our submission, that also can be seen not to be, as it were, a decorative extra inessential to the reasoning of the court in pronouncing on the issues before them, but rather, that it was a way of ensuring that there would not be overreaching by a court so as to protect something that may never have come into existence, may never come into existence.

In our submission, it is for those reasons that although these are not authorities on, as it were, the doctrinal controversy before this Court, they are certainly authorities that lay down the principle in a way which provides not mere guidance but the current rule on those aspects of the definition of the powers jurisdictional limits.  We appreciate that the Court can change the rule, and we appreciate that it may be ‑ ‑ ‑

FRENCH CJ:   Or develop.

MR WALKER:   I am sorry if I have intruded crude realism into the debate – declare the law to be such as even those of earnest goodwill could not have discerned before it was thus pronounced, and we accept that that is this Court’s function and it may call for exercise in this case.  We have got some submissions to address to that possibility fairly soon.

Your Honours, Cardile is, of course, a very important case for understanding the way in which the freezing order or the Mareva jurisdiction has been understood hitherto in the Court, tab 14 in the bundle, 198 CLR 380, and one can see how the reasons of the plurality build on what has gone before in the way I have tried to trace. At page 393, paragraph 25 – I will not read it but your Honours will notice one of the several observations about the gap or wedge between us and the northern hemisphere in relation to the doctrinal basis. In paragraph 26, one will see the paraphrase ventured of Justice Deane’s reasons in Jackson and the phrase is important:

to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction.

If I could take your Honours over, please, to paragraph 40.  I should note in passing, your Honours will see the reference in paragraph 39 on page 399 to Mr Justice Dixon in Glover v Walters to which I will be coming in just one moment.  In paragraph 40, again one sees with a deliberateness and clarity that can scarcely be mistaken a reference to the development of:

doctrines and remedies . . . to protect the integrity of [the court’s] processes once set in motion.

Again, the identity of the court, first dimension, the temporal sequence, second dimension, explicit in that statement of principle.  In 41 and 42, which I will not dwell on, there are, of course, important references back to the body of doctrine in the court.  Cardile was not as to the availability of the remedy in general purporting to develop or change the law to any degree; it was the third party issue your Honours will recall in Cardile.  In paragraph 42 in particular, we draw to attention, as you might expect, the two phrases that one finds in the middle. 

The first is the phrase “against whom final relief was sought”.  That was obviously important in Cardile because of the third party exercise, and in relation to that situation – and that situation is our situation, there is no third party here, not any more – in that situation the focus is the frustration of the court’s process.  Not, obviously, another court’s process, it is the court’s process, here would have to be the Foreign Judgments Act process.

If I could take you to page 404, paragraph 53, I will not read it but your Honours will recall the sequence of rhetorical questions which attracted this comment to which, of course, a further comment in this argument is made and appropriate, namely, is this jurisdictional or discretionary?  One will see the reference to it being:

difficult to conceive of cases where such an undertaking would not be required.

That goes to the – I will call it the imminence extension about which I have already said I suspect more than enough.  In paragraph 54, one sees a general proposition considered and upheld by the Court – top of page 405:

the general proposition for which the appellants contend – that the grant of Mareva relief against the third party should be limited to cases in which the third party holds or is about to hold or dissipate or further dissipate property beneficially owned by the defendant in the substantive proceedings –

so there must be that relation.  They then say that is “too narrowly expressed” and then they go on to refer to the way in which the principle – see paragraph 58 – which they would apply set out in paragraph 57 as to the third party issue and, in our submission, the whole of that is explicitly premised on the identity of the substantive process that has been put in motion and the identity of the court in which the substantive process has been put in motion and the court granting the freezing relief.  At tab 19 in volume 2 of the combined bundle of authorities ‑ ‑ ‑

KEANE J:   Mr Walker, before you go on, just looking at paragraph 53 in Cardile ‑ ‑ ‑

MR WALKER:   Paragraph 53, your Honour?

KEANE J:   Paragraph 53 at page 404, their Honours are addressing a number of discretionary considerations and amongst those discretionary considerations are these questions:

Why, if some proceedings are available, have they not been taken?

Does that not rather suggest that the jurisdiction at least is available before proceedings have been taken?

MR WALKER:   Not simpliciter.  These are all about the third party issue.

KEANE J:   Why?

MR WALKER:   Just about the third party issue, and it turned out that – I am sorry.  The answer is no.  In relation to third party proceedings the most important aspect that the ratio of Cardile shows is that there must be the present availability of a claim to be made whether by way of tracing or other proprietary identification of property or funds in the hands of the third party which ought to be available to satisfy the judgment creditor in the substantive case. 

That is the availability of a claim there and then.  The questions which are asked in 53 include, of course, if they are available – and the question to which your Honour has drawn my attention is also premised on the availability.  So the cause of action or the claim in equity is already available.  May I make it clear that is not this case?  It is not available to the respondent here to make an application under the Foreign Judgments Act.  The more one concentrates, as one should, with respect, on the West Australian jurisdiction, the more it is obvious that it does not fit the template that any of these cases has looked at.

GORDON J:   Is that right, given paragraph 57?

MR WALKER:   Yes, is the answer.  Paragraph 57 is the paragraph which contains the principle in question for the third party issue in that case and it posits a state of affairs already existing which, upon judgment being granted, will expose the third party to process by which the judgment debtor’s property can be accessed in the hands of the third party.

GORDON J:   It talks about actual “potential judgment debtor”.

MR WALKER:   Well, the potential is because there is that banal contingency always existing at this point, namely, that the plaintiff has not yet won the case.  That is all that actual or potential refers to.  It does not mean potential in the sense that you do not even have your cause of action yet.  It means you do not yet know whether you have won the case.  So, no, nothing in paragraph 57 contradicts what I have been putting concerning the need to have available the claim, and both sentences – first the one that Justice Keane has drawn to my attention and the one that follows that in paragraph 53 – focus the mind in this case, adapted to the issues in this case, on the question, is it available to the respondent to make an application under the Foreign Judgments Act?  The short answer is no.  It may become so in the future, it may never become so, but that is not available. 

That is not the same as asking the question, if the application has been made under the Foreign Judgments Act will you win?  The answer is you may win, and when that is the only contingency, then that is what I call the banal contingency and the freezing order jurisdiction can be called in aid if all other things make its exercise appropriate.  But before the Foreign Judgments Act application has been made, there simply is no process of the Western Australian court which has been put in motion. 

KEANE J:   Mr Walker, what is the value that is served by this distinction that you draw between proceedings where proceedings have been commenced and the case where a judge is able to see that there is a likelihood that proceedings will be commenced and if the order – the freezing order is not made those proceedings will be frustrated?  What is the value that is being served by insisting on that distinction?

MR WALKER:   The first is that, in the absence of statutory jurisdiction – and there is none here, that is the contrast with the position in the United Kingdom ‑ in the absence of a statutory power, the way in which the power is derived doctrinally is by seeing its auxiliary, ancillary, incidental, implied, or reasonably necessary character in relation to the jurisdiction, the substantive jurisdiction of the court.  That is how the court reasons to its existence.  Hitherto, no one has ever supposed that in advance of a cause of action accruing, a person who sees themselves as one day perhaps going to be a plaintiff may freeze the assets of the person who one day may be a defendant; hitherto, the dividing line – bearing in mind the drastic nature of such power, of course, and bearing in mind the drastic nature of submitting a person’s property to the discretion of a court.  Now, I do not mean to be insolent about the nature of the discretion of a court at all.  I simply mean that to be exposed to the discretion of a court in relation to one’s property is a very large thing.

So, the anterior question, does the court have the power to exercise discretion over a person’s property is a very important matter of the policy of the law.  In the absence of a proprietary claim, the court has said by dint of true interlocutory injunctions in relation to proprietary claims and freezing orders, it has said that this drastic power to exercise a discretion will be available because of the relation it bears to the administration of justice which may produce a circumstance where the justice would be frustrated by the wrongful – that is a very general word and I will not elaborate it further – usually deliberate, manoeuvres of the prospective defendant, or actual defendant, to defeat the orderly processes of justice in the enforcement of a future judgment.

In taking those steps, to pronounce a power of such importance, it has been hitherto in all the authorities regarded as integral to and justificatory of the judicial pronouncement of that power’s existence that it is incidental to the exercise by the court of its jurisdiction.  Hitherto, that has been accomplished not only by what I have called the possessive adjective approach – its processes – but also by the temporal connection – not its processes in the abstract or against the prospect that they may one day be engaged but the processes which are engaged where the only prospect in question, the only contingency in question, whether they will end favourably for the plaintiff.

FRENCH CJ:   The banal contingencies may include failure to satisfy some essential element, for example, of a statutory cause of action.

MR WALKER:   Or of a common law cause of action.

FRENCH CJ:   It might be, down the track, a determination based on factual matters that the court lacks jurisdiction.

MR WALKER:   No, quite so. 

FRENCH CJ:   The banal is rather ‑ ‑ ‑

MR WALKER:   I do not mean to deprecate the importance.  I simply mean it is true of every remedy of this kind, be it interlocutory injunction or freezing order.  Their very expedience and significance to the administration of justice comes because they are anticipatory.  It is in order to prevent the smart alecs seeing the glacier about to ‑ ‑ ‑

FRENCH CJ:   It just makes me wonder about the weight that you have put on commencement of process.

MR WALKER:   Your Honours, it is true I am putting weight on the commencement of process.  It is obviously important.  However, my point is, it is totally justified by the text of this Court’s authorities.

KEANE J:   Mr Walker, while you are being interrupted ‑ ‑ ‑

MR WALKER:   I am sorry, your Honour.

KEANE J:   ‑ ‑ ‑can I just interrupt you again?  And, I do not expect an answer to this, obviously, straight away, but it may be that we get some indication of the nature of judicial power that we are talking about here, or the incidence of it, from the old common law writs.  I am thinking, particularly, of capias, the writs of capias.

MR WALKER:   And ne exeat as well.

KEANE J:   Yes.

MR WALKER:   To which I am about to come.

KEANE J:   Okay.  Well, the particular question I had ‑ ‑ ‑

MR WALKER:   I am sorry.  I have interrupted, your Honour.

KEANE J:   The particular question I had was, are you able to let me know, or let us know at some stage convenient to you, whether the writs of capias, particularly capias ad respondendum – whether that writ could issue without proceedings having been commenced.

MR WALKER:   Yes.  As it happens, I think – and your Honours should not rely on this – I think the answer is, yes.  So, I need to do more work than simply answer your Honour’s question.

KEANE J:   Thanks.

MR WALKER:   But, do we have the Court’s leave to do that after I have sat down if I have not been able to get an answer before then?

FRENCH CJ:   Yes, you have the leave.

MR WALKER:   If I just impose a one‑page limit on myself, I hope that does not ‑ ‑ ‑

KEANE J:   Thank you, Mr Walker.

MR WALKER:   Thank you, your Honours.

GAGELER J:   Mr Walker, while you are interrupted, it is not clear to me at the moment how the questions of federal jurisdiction canvassed in the written submissions now fit into the argument you are presenting.  I do not necessarily expect you to deal with that now.  I just do not see a heading in your outline of submissions ‑ ‑ ‑

MR WALKER:   No, it is not.

GAGELER J:   ‑ ‑ ‑ that would appear to capture questions of what is the scope of the matter, if you see that as continuing to be a live issue, and how the question of the inherent jurisdiction of the Supreme Court relates to the conferral of federal jurisdiction – exclusively federal jurisdiction of the Supreme Court.

MR WALKER:   Yes, quite so.  If it is convenient to your Honours, rather than answer that now I will turn to that at the end of my address.  Glover v Walters, tab 19, is a decision by Mr Justice Dixon as a single justice, 80 CLR 172. It is a ne exeat case. There were proceedings for the same claim pending in the South Australian Supreme Court and in the High Court. In a statement which, of course, is obiter bearing in mind how his Honour viewed the facts but which is (a) from his Honour and (b) about general principle. At the foot of page 174, top of 175, there are, in our submission, strongly evocative significant statements about the relation of that important power which is also very drastic – controlling somebody’s freedom of movement – to the pendency of substantive proceedings in the court asked to issue the writ. His Honour says at the foot of 174, in relation to the condition of discontinuing in the South Australian Court:

I do not think that this Court –

that is the High Court ‑

ought to grant the writ except for the purpose of ensuring that the plaintiffs’ remedies in this Court are not defeated, endangered or prejudiced.

So, his Honour had before him the possible notion, well what about ne exeat to protect the process in South Australia.  I cannot say it was argued that way.  There is no appropriate note of it and I have not researched further.  But, that is obviously an idea that informs what his Honour then goes on to say:

The writ in this Court is a remedy incidental to the exercise of the jurisdiction to determine the suit and give relief ‑

that means in this Court ‑

It is not a remedy to be granted here –

here, meaning in the High Court ‑

as auxiliary to the effective exercise of other jurisdictions.

That is, South Australia.  With respect, if that is true between the High Court and one of the Supreme Courts under the High Court in our Australian judicature, how much more obviously is it between Western Australia and Singapore.  It is, in our submission, of significance that that was quoted by this Court in relation to Mareva. 

Next, may I go to what this Court said by way of explanation of the course of authority in ABC v Lenah Game Meats 208 CLR 199, which is tab 11 in volume 1. There is an even plainer linking of the protective process with the substantive process. First, in the reasons of Justice Gaudron to be found on page 231 in paragraph 60, in discussing what I will call the nomenclatural point. Her Honour says, in relation to injunction:

It has also been used to describe orders which a court makes to protect its own processes such as an asset preservation order (sometimes called a “Mareva injunction”) –

et cetera.  But the main passage I wanted to draw to your Honours’ attention is on page 243 in the reasons of Justices Gummow and Hayne, at paragraph 94, where one finds repeated that observation that I drew to attention from the anti‑suit case, CSR v Cigna.  The second sentence in paragraph 94 “The order in question” et cetera, and then the end of the next sentence that commences, “Likewise”.  So you have got the integrity of its processes once set in motion and the power to prevent the frustration of its process.  It conveniently combines both elements, the identity plus the proper temporal sequence.

Your Honours, returning to the question of sequence, in particular, we have had, I think, supplied copies to your Honours of Patterson v BTREngineering 18 NSWLR 319. It is a decision of the New South Wales Court of Appeal and I am drawing to attention ‑ because of the attention in turn given to it by Lord Nicholls in the Mercedes decision, I am drawing to attention this point, the dissenting reasons of Justice Rogers, picking it up at page 329.  Your Honours will see, just after letter C, during the course of his Honour’s exposition of the course of doctrinal development in England and Wales, there is a reference to the need to have an accrued and vested cause of action and then the proposition put in the next paragraph, commencing:

In contrast, in Australia –

to it being different in Australia.  And then between F and G, a reference to what might be called a resolution of such a difference, his Honour says:

I might mention, in parenthesis, that in England the difficulty has been sought to be overcome by the grant of a conditional order.

Now, the conditional order in question was one which ‑ the nature of which and the effect of which is explained by the passage ending on the top of page 330, namely, that given that there could be no breach until the vessel was delivered – the obligation being to deliver in a certain state – that the Mareva would not come into effect until delivery.

Now, in other words, even a judge who, in minority on the point – because Chief Justice Gleeson and Justice Meagher said you had to have the availability of a cause of action – even a judge who was differing on that point ventured the important observation there were, for reasons of principle, reasons to ensure that the Mareva order did not precede the existence of a cause of action.  A fortiori we submit the existence of the capacity to sue and that is what we have here.  There is no capacity of the respondent to sue at all.

We have – I do not need to elaborate it – in paragraph 17 of our reply written submissions, drawn to attention that that is a passage that is relied upon by Lord Nicholls in a passage to which some reference may be made.  With respect, Lord Nicholls misunderstands the state of authority, or misstates the state of authority, in this country and in New South Wales concerning that matter.  Justice Rogers was not speaking to the court on that point but, as I say, in his speaking he nonetheless recognises the importance of the matter that we have been urging in relation to the temporal question.

Your Honours, in relation to case law, our proposition 6 – I wish to elaborate only in a couple of respects, otherwise relying upon the written submissions that are there set out.  Your Honours appreciate that, at least to this point there has been considerable weight made – one sees it reflected in the Court of Appeal reasons – on the importance of the explanation of this matter in Davis v Turning Properties, a decision, at first instance, by Justice Campbell in the Supreme Court of New South Wales, 222 ALR 676, tab 17 in volume 2 of the bundle.

Your Honours know – we have drawn this to attention in our written submissions – that we submit there is real significance in the first sentence of paragraph 1.  That really makes it adapted ‑ for this case, that makes it as if there was an attempt to enforce a non‑money judgment granted by the Singapore court.  We know that there neither has been one nor has there been any application because there cannot under the statute because the reciprocity has not been recognised by a prescription.  So, in a sense, we say this case has nothing to do with the matter that arises where it is not – this is not a Mareva to support a foreign Mareva, this is a freezing order to support process in another court where there is not, and cannot be, for an indefinite period and, perhaps, forever any process in this Court – in the Western Australian court, I should say.

Could I take your Honours then to paragraph [33] at page 686 of the Australian Law Reports?  His Honour schematises the issue before him.

the possibility of a grant of a Mareva order by an Australian court against person A, when assets of A might be able to be in practice reached, if the plaintiff obtained a judgment against some other person B, and the assets of A might be sought to be applied to recover that judgment, even if that is done by a step such as –

et cetera.  Then, his Honour turns, of course, to the general statutory power which involves and reflects the so‑called inherent jurisdiction.  Then, in [35], with great respect, we submit, more by assertion than demonstration, leaps the sovereign aspects of different jurisdictions as follows:

The administration of justice in New South Wales is not confined to the orderly disposition of litigation which is begun here, tried here and ends here ‑

Then, his Honour refers to matters which, with great respect, are not only contemporary and, indeed, are not modern ‑

international commerce and international monetary transactions –

including those able to be carried instantaneously by a bill of exchange, do not require electronics and are not the stuff only of the last part of the 20th century. 

In paragraph [36] – and, of course, all the particular heads of power in [35] bear quite insufficient analogy for the reasons we have argued in writing with what is proposed here.  In paragraph [36], an extrajudicial statement of opinion in a text concerning the inherent jurisdiction in Australia, having achieved what was achieved by statute in the United Kingdom – again, more by way of assertion without any demonstration – is set out by his Honour.  Then, finally, in paragraph [48] on page 690, in relation to particularly the question Justice Keane asked me to address, one sees this state of affairs:

no decision has been made about whether proceedings seeking substantive relief against the first defendant will eventually be brought in this court, based on a cause of action which the plaintiff alleges against the first defendant.  However, when the basis of the present order is that it is one which applies in aid of the Bahamas Mareva order –

That is significant because if – to go back to the question the Chief Justice asked me this morning about a straw man – we concentrate only on the Western Australian jurisdiction, then this is not an authority that speaks to that matter at all.  This directly leaps over all the doctrinal obstacles, as we would put them, and says this can just be in aid of the Bahamas Mareva order.  How that would possibly fit with the Foreign Judgments Act, bearing in mind the assiduous discrimination between a money judgment for which there has been prescribed reciprocity and the non‑money judgment for which there has not been is, of course – because it was not before his Honour – not the subject of any reasoning, let alone decision.  Again, his Honour simply concludes it is not necessary.  Why is it not necessary?  Because, it is in aid of the Bahamas Mareva order.  Of course, you can invert that.  Why is it possible to act in aid of the Bahamas Mareva order?  And there is, of course, no answer provided except for the fact that there is international commerce. 

Your Honours, the other thing I wanted to add in elaboration of proposition 6 is, on any view of it, tangential.  But, because it is very recent and it involves some of the general considerations that may assist this Court, we have drawn to attention the decisions respectively of the Court of Appeal of England and Wales in Abacha [2015] 1 WR 1917 which you will see at tab 33 of volume 3 and the Singularis decision which is a decision of the Privy Council on appeal from the Bahamas – from Bermuda, I should say – [2015] 2 WR 971, tab 31 of volume 3.  I need to make it clear, of course these are very tangential to the matter at hand.

The significance, however, lies in the unavailability from consideration of their Lordships’ various reasoning of any notion that simply acting in aid of a foreign jurisdiction provides the justification for a power if one is considering the notion of a power apart from statute.  In, at least, Abacha that was explicit premise that their Lordships were considering.  Abacha has the additional element of the temporal question, boiled down considerably.  There were possibilities in the United States of the forfeiture of property thought to have been corruptly abstracted from Nigeria by corrupt rulers.

A network of statutory and delegated legislative arrangements made it arguable that the High Court of Justice of England of Wales could assist – to put it generally – in the enforcement of an American forfeiture.  Under what is called the 2005 order that, however, could be done only upon application by a relevant law enforcement authority in the United Kingdom.  It could not be made by application by the United States authorities.  The United Kingdom authorities had either determined never to, or not to, make such an application or had not yet determined to do so. 

That, as one can see in particular from the conclusion of Lord Justice Glover’s reasons was, in itself, enough to say that in the absence of that process being engaged in the English court, the English court did not have a freezing order jurisdiction.  Of course, it is statutory, which is one of the several reasons why this authority is, at best, tangential to the current issues.  But, embedded in the statute, as your Honours know, is this – as has been described in that jurisdiction, perhaps not elegantly phrased ‑ notion of it not being inexpedient to grant the statutory freezing order relief.  That has been understood as including reference to tenants of jurisdiction to be gathered from the state of the common law, hence the reference to Dicey’s rules, hence the reference to penal and other forms of foreign judgment which would not achieve either recognition or enforcement in the English jurisdiction.

For those reasons, in our submission, there is to be gathered, I accept, highly tangentially from Abacha, the rejection, at least, of a generalised notion that if a foreign court has jurisdiction and is entertaining a claim, that is enough for the English court to say then, I have power – of course, subject to discretions – but, I have power to use my process to assist even though my own substantive process may never be engaged and that was rejected in Abacha.  Singularis is to similar effect.

I am not going to take your Honours to the lengthy passages that can be found in the various judgments concerning what might be called, with respect, rudimentary but profoundly important aspects of judicial law‑making or the extension of principle.  They are, with respect, important to an understanding of the way in which the Privy Council saw its task in that case.  That was a case where the discussion is dominated by consideration of the particular status that corporate liquidations, particularly compulsory liquidations, that is, insolvencies, where there are transnational property holdings and the like, are concerned and the doctrine with the grandiose title of “modified universalism” which, I think, is an oxymoron.

Their Lordships trace the high watermark – Lord Hoffman – and the question as to whether the tide has gone completely out in relation to it.  All that is beside the point, except for us to note that there is no suggestion that there is a general residual, as it were, of common law power to adapt remedies which are available for domestic litigation simply so as to assist a foreign court in its exercise of power, including by officers of court, such as a liquidator.  In particular, your Honours may recall about that decision, an argument was tried and unanimously rejected that there could be an appeal to, what might be called, the equity of the statute or an analogous extension of the Bahamas statute to do something which the Bahamas statute did not permit to be done for the Cayman Islands and, as it happens, the Cayman Islands having no corresponding power itself. 

But, in our submission, what is critical, in particular in the reasons of Lord Mance is the rejection of the notion that simply because it might be regarded as an inviting gap to be filled that there ought to be a common law invention of a power, in that case, to order the compulsory interrogation with contempt sanctions attached to persons out of the jurisdiction but within the jurisdiction of the Bahamas.

In our submission, those are two very recent decisions which really stand against the notion that there ought to be, as it were, a wholehearted enlistment of the Western Australian Supreme Court’s resources such as the undoubted jurisdiction to grant freezing orders, in support of foreign process.  Yes, it can be enlisted in support of Western Australian process but there being no Western Australian process, it not being capable of being regarded as imminent in any relevant sense, the limit of power is exceeded.

Your Honours, in proposition 7, we cap what I have just put, of course, by pointing out that one of the reasons why there ought not to be judicial pronouncement of a power of this kind, that is, requiring heavy qualification if not contradiction of the statements to which I have drawn attention already in this Court about when the power may exist, is precisely because, as the Foreign Judgments Act shows – as it happens, as the two English cases show – this is an area which is preternaturally given to treaties, to foreign relations, and to choice among infinitely various possibilities of how to strike balances.  That, in our submission, for the reasons powerfully pointed out in dissent in the Privy Council by Lord Neuberger and Lord Mance, that is a badge of the inappropriateness of the court taking the incremental step that the majority, in particular Lord Sumption, suggested.

In our submission, it is even stronger here where we have the enactment of the detailed scheme of the Foreign Judgments Act with its reference to reciprocity of a kind which this Court, and no court below this Court, could ever take into account.  It would be, in our submission, a very bold innovation of a kind contrary to the judicial power, for example, either to say reciprocity should be of no concern to the law; Parliament has said it is of national concern.  Nor should the judges be in a position of saying reciprocity is important, and you can conduct a case by case investigation of the state of affairs in that regard.  That is a foreign relations matter that ought to be left to the devices and mechanisms, one way of doing which is set out in the current Foreign Judgments Act.

It is never to be forgotten, as I started off by saying yesterday, that as it happens, we know that Singapore has a freezing order power.  There is high significance in the fact that there has been no recourse to it.  It is not as if there is a gap in relation to the administration of justice between these parties that only Western Australia can fill.  Singapore is there and, in our submission, that removes any sense of urgency by reference to the needs of justice, and the possibility of an injustice going uncorrected.

In proposition 8, I need spend very little time on that this morning because, particularly in answer to questions from the Bench yesterday, I think I have covered all of those matters.  We wish to emphasise that, of course, as a matter of legal effect, there is a difference between the application for registration and enforcement of a foreign judgment, which is the foreign judgments power in the Western Australia Supreme Court, and what Singapore is doing.

But in terms of the enlistment of contempt and other powers of the Western Australia Supreme Court, the freezing order that has been granted in this case is on all fours with, is exactly the same as that which would

have happened if there had been a freezing order granted by Singapore, and Singapore had been proscribed as a country whose courts give reciprocal enforcement to our non‑money judgments, and there had been registration and enforcement of that Singapore freezing order.  To achieve that effect without the reciprocity that the Act requires, it is, in our submission, a very startling outcome that shows, as I say, the section 109 undermining to which I referred yesterday.

I then come to the question of federal jurisdiction in conclusion, as requested by Justice Gageler.  Of course, this is all in federal jurisdiction, and pace the way in which we have perhaps tentatively put it in our written submissions, it was in federal jurisdiction from the beginning because it was always said to be an application for an order in aid of a prospective application under the Foreign Judgments Act.

The federal jurisdiction, in our submission, has a couple of aspects to it.  The first is, of course, section 79 – I do not need to labour the point about the intellectual order in which one deals with section 109 first, and then section 79; nothing further to say about that.  Section 79 will, of course, subject to that question, pick up the procedures of the Western Australia Supreme Court.  It is contemplated, in fact, by the Foreign Judgments Act actually in terms.  That nonetheless raises the question as to what it has picked up is in fact a valid order in the Supreme Court Rules.  That goes to the question of authorisation to make the rules.  That goes to the question, of course, which is a State question but for federal purposes, as to whether the Supreme Court Act has authorised the rule, and that leads back to the inherent jurisdiction question.

Another way of looking at the matter, as we have tried to put in our written submissions, is that because it is agreed the Supreme Court Rules cannot go or do not purport to go beyond what the inherent jurisdiction is, then what I will call the common law of the availability of a freezing order in such a position is the common law for all purposes, subject to whatever statute provides.  No federal statute has provided differently, and no State statute has provided differently, and so we are left with the question whether the common law of Australia has, for a superior court, found in existence a power to grant a freezing order in aid of a substantive jurisdiction that (a) has not been engaged, (b) is not imminently able to be engaged, (c) is not able to be the subject matter of an undertaking to commence, and (d) may never be engaged.  May it please the Court.

FRENCH CJ:   Yes, thank you, Mr Walker.  Yes, Mr Bell.

MR BELL:   Would your Honours wish a moment to review the short outline?

FRENCH CJ:   Yes, just take a seat for a moment, Mr Bell.  Yes, thank you.

MR BELL:   Thank you, your Honour.  May I, before turning to develop the propositions, identify our response to broadly four of Mr Walker’s key points?  I will develop that response further in the course of developing our own propositions, but to join issue and to indicate where we stand on the key aspects of his argument, can I just begin by addressing four of his points.  First, the suggestion in answer to Justice Keane that what the Court of Appeal and Justice Le Miere did was not orthodox.  We say it was entirely orthodox, and that those judgments are classic examples of consideration of the underlying principles leading to the result.

The orthodoxy can be seen by way of this example.  It has been the law in Australia for more than 30 years that where an arbitration is on foot and no jurisdiction of any court, Supreme or Federal Court, has been engaged, has been initiated, has been triggered, freezing order relief may yet be given to ensure that the ultimate judgment on the registration of the arbitral award is efficacious, or to use the Latin used in the New South Wales Court of Appeal in Riley v McKay, not a brutum fulmen.

That has been the law ever since the decision of Justice Clarke, as he then was, in Construction Engineering, a case I will take your Honours to – it is in volume 2 at tab 15 – and in our written submissions in paragraph 49, your Honours will see we have gathered, not exhaustively, but we have gathered numerous examples of freezing orders being granted in aid of the prospective registration of arbitral awards whether domestic, under the Commercial Arbitration Acts, the Uniform Acts, or international arbitral awards pursuant to the provisions of the International Arbitration Act; we give examples of that.

That has long been the law in this country, and if one were to look for an analogy, the analogy is not the far‑fetched analogy, with the greatest respect to my friend, that Mr Walker sought to develop, but this analogy, where Mareva freezing orders have been granted in circumstances where you have an arbitration on foot – it is a perfect analogy, because one has these elements; you do not have any invocation of any court’s jurisdiction, but you have the anticipation that there will be an award which will be enforced by way of registration, precisely the same mechanism that one has in the Foreign Judgments Act.  It has never been seen as a bar or difficulty there that there are no “proceedings” – let us say “judicial proceedings” on foot – prior to the application to register the award.

This point is of very great commercial significance.  It is not just about “exotic” foreign litigation, where foreign courts might have powers to grant Mareva relief.  The logic of my friend’s argument must be that where parties arbitrate – and so many commercial parties do arbitrate because of the perceived advantages of arbitration – the consequence of accepting my friend’s argument is that many of those awards secured after hundreds of thousands of dollars have been expended on great commercial disputes may well, if the necessary circumstances – the risk of dissipation, et cetera – be made out, the courts of this country would be powerless to protect their enforcement processes, even in cases where they are satisfied they are likely to be engaged and where they are satisfied there is likely to be dissipation, rendering the whole process, in the words of Justice Toohey in Jackson v Sterling Industries, useless.  That was his word, “useless”.

That is what this case is about; is this Court powerless to prevent a “useless” outcome when it is exercising ‑ to take the inherent jurisdiction ‑ when it is acting and authorised to act in the interests of justice?  We say the answer to that question is plainly “no”, and this is the best analogy.

Your Honours, staying with the orthodoxy point, of course, it is trite that just because this Court has not had a particular case like this before, and in that sense it is novel in this Court, does not mean that the decision under appeal is unorthodox or heterodox, or that the decisions below have not been made by principal reasoning based on existing authorities.  In that regard, can I in particular draw the Court’s attention to the fact that in Cardile, and in Patrick, and in Jackson, all three of the leading cases where this Court has visited this area before, there are five or six statements from different Justices about the evolving nature of this jurisdiction, about the ability to use this power to meet unforeseen exigencies, et cetera.  Can I give your Honours those references?  One starts with Jackson in volume 2 of the bundle at tab 21, and Sir Gerard Brennan noted at page 621, point 6:

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.

To similar effect, in the same decision, Justice Toohey, at the foot of page 632, third last line:

in either case there is no reason to assume that the operation of the power (or the application of the practice) must be assessed by reference only to earlier decisions.  Courts must respond to the situations of the time, as is apparent from the way in which the scope of Mareva injunctions has been extended.

That is Jackson.  In Patrick, can I just give your Honours a reference to paragraph 127 of Justice Gaudron, where her Honour said:

whatever orders are necessary to enable the Federal Court effectively to exercise its jurisdiction.

That is the only limit, what is necessary to enable the effective exercise of jurisdiction.  Of course, our point is the jurisdiction to register would be rendered inefficacious on the facts as found by Justice Le Miere ‑ would be rendered inefficacious, wholly inefficacious.  Indeed, the very facilitative purpose of the Foreign Judgments Act would be undermined.  I will come back to that.

The third point in the context of this Court having signalled the evolving nature or the need for this area to respond to exigencies is this Court’s statement in Cardile, without taking your Honours to it, beginning at paragraph 50 in Cardile where the Court referred to it as an “evolving” area.  May I say, with respect, Cardile is a classic example of that.  There had been no case such as Cardile in the High Court, and Cardile was not a case where the Court could resort to or deploy the language of abuse of process, because the targets of the order in Cardile were not parties to any proceedings, and there were no proceedings commenced against them, and there may never have been any proceedings commenced against them because the type – and this is Justice Gordon’s point, I think, with respect, her Honour’s question to Mr Walker, paragraph 57 – the contemplation was that these third parties could be the target of recovery actions by liquidators avoiding preferential payments, and the like.

Mr Walker says temporal matters come into play.  What about the temporal matters in Cardile?  In Cardile, you have the substantive proceedings between the plaintiff and the defendant.  You have the contingency that the plaintiff may not succeed.  You have the contingency that the proceedings may settle.  You have the contingency also that the judgment debtor may in fact pay.  But the parties who are the object of the order in Cardile were parties who may be the subject of recovery actions by liquidators not yet appointed, because the underlying debt is not yet established in existing proceedings.

Cardile is a very nice case, in a sense, and it is not surprising – if your Honours go back to read Justice Le Miere’s judgment, his Honour very carefully considered Cardile and how it represented a principled development by reference to the broad concept of the administration of justice, how it recognised that the inherent power of the court extended to that situation.  Their Honours, Justice Le Miere and the Court of Appeal, followed precisely that very careful classical reasoning process.  We would answer your Honour Justice Keane’s question “is this not just an example of orthodox principle?” by saying “yes, absolutely orthodox”.

The second broad point of opening rebuttal I wish to deal with relates to what my learned friend, Mr Walker, said about contingency and the distinction on the one hand between what he described as the banal contingency – that is to say, the underlying substantive claim may fail or be settled, et cetera – and what he described on the other hand ‑ and I took a note of three different descriptions; one, a different kind and level of contingency; another description was another more distinct and more profound contingency; and the third was the mere prospect that process will ever be engaged.  With the greatest respect to my friend, there was a great deal of hyperbole in those three descriptions, because one needs to look at the contingency my friend is speaking about and ask the question, is it indeed a contingency at all or properly so called?

Can I make these submissions on that point?  We have a finding that if we win in Singapore – and that “if” is the banal contingency – that judgment will be registered and enforced here.  Your Honours will see at appeal book 193, paragraph 99, letter (a):

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.

That was not in contest because it was the subject of unchallenged evidence, and your Honours will find the reference to the unchallenged evidence in our full written submissions, page 6, footnote 16, and there is a context, and it is an important commercial context that this Court should be aware of because these are very important commercial matters.  I am not speaking about comity at all here, I am speaking about important commercial matters and the transnational nature of commerce.

The context in which that evidence was given by the Chief Financial Officer of my client, which is the subsidiary of an Australian company the subject of a joint venture agreement, was this, and it is set out in Justice Le Miere’s judgment at appeal book 94; I will take your Honours to that.  There was evidence, beginning at 93, of the investigation of the assets of my friend’s company:

search and analysis of publicly available financial statements –

et cetera, a reference drawn to in line 33 on page 94 to a statement in the prospectus that if you sue us – and there was an exclusive jurisdiction clause in the joint venture deed which is why the parties are litigating in Singapore, just like there could have been an arbitration clause, I should add – we warn you:

You may have difficulty enforcing judgments against us or our management ‑

That is a function of Indonesian law.  And secondly, in paragraph 101 ‑

There is expert evidence before the court that, subject to exceptions not relevant, a Singapore money judgment could not be enforced in Indonesia.

These are the fact situations, obviously, of this particular case, but my point is this.  This so‑called, to quote Mr Walker, “mere prospect” that the Foreign Judgments Act procedure of this Court may or may not be engaged is something far more than a mere prospect. It was the subject of evidence and findings, and it is, of course, the subject of an explicit requirement built into Order 52A. That is the requirement that the foreign judgment – if I can take your Honours to the text of 52A; it is set out in volume 1, tab 6, and it is in rule (3)(b), so rule 5(3)(b):

sufficient prospect that the judgment will be registered in or enforced by the Court.

This is not profound contingency, this is something which appropriately the court addresses amongst the facts it needs to address.  It is certainly no different kind of contingency to the prospect of a successful party in an arbitration enforcing its award, but let me go beyond that.  It is probably not different in kind, in fact, to the contingency of a judgment debtor in domestic court proceedings, because whether that judgment debtor will need to engage with the court’s execution processes – which are, after all, what are being protected – whether the ordinary garden variety judgment debtor is subject to a contingency that the judgment debtor actually pays, that the judgment debtor is not consulted, et cetera, that process may or may not be engaged in every case as well.

It is proposed I think by Mr Lloyd that there is a deficiency ultimately under section 78B of the Judiciary Act with respect to the section 109 argument in relation to the Legislative Instruments Act. We submit not. It is not a 109 matter at all for us to note that in relation to rules said to be made under section 17 – this argument only applies if they were made under section 17 ‑ section 38 or section 31 of the Legislative Instruments Act simply operate, and they operate to the making of rules which are Commonwealth rules because they are made under section 17. There is no 109 point and there is no deficiency in the section 78B notice which already adequately covers the inconsistency between reliance on the Supreme Court Act power and the Foreign Judgments Act power and scheme.

Your Honours, in relation to the temporality phrasing of which once set in motion is a good example, my learned friend, Mr Bell, with respect, accurately traces part of the source of those statements back to matters which include, for example, discussions of anti‑suit injunctions.  However, it is now too late, with respect, to suggest that because that is where it came from there is some limitation to be observed in understanding the purport of that phrase when describing the doctrinal or principled foundation of the freezing order or Mareva jurisdiction.  It is there.  The fact that it came by contemplation of a need, for example, to control recourse to anti‑suit jurisdiction is now neither here nor there.  There is no indication that it was intended, as it were, as an extraneous or foreign element in the statement of principles; far from it.

In relation to Mercedes [1996] 1 AC 284, my learned friend, Mr Bell, referred to footnote (81) on page 32 of 195 CLR. Our short point there is that that is for a proposition – footnote (81) is for a proposition well supported by much of what is to be found on those two pages of Lord Nicholls’ speech, but is not for a proposition that has anything whatever to do with what I am going to call foreign or completely anticipatory elements. That footnote is not, as it were, a way of introducing the whole of those two pages as canonical law in Australia.

My learned friend, Mr Bell, in referring to the undertaking notion relevant to what I will call the imminence jurisdiction, suggested that the purpose of the concern in practice with giving an undertaking is to ensure that the protective jurisdiction is not exercised in what he called hypothetical cases.  In our submission, that really underlines the question that is raised for this Court in this case as to whether or not there is something in the nature of a jurisdictional limit rather than simply a discretionary matter of weight or balance in relation to the remoteness or the tenuousness of a nexus between the sought exercise of protective power and the engagement of a court’s substantive jurisdiction.

In our submission, the answer, for the reasons we have already put, is that there ought in this area be a limit of power rather than simply a matter of balance or weight in the exercise of a discretion.  Otherwise, for the reasons that, with respect, fell out from my learned friend’s example, there would need to be considered why in purely domestic jurisdiction one could not get a freezing order completely in advance of an occasion when a court thought it highly likely, but of course could not say it was certain, that a party was going to breach a contract.

In the absence of any substantive quia timet jurisdiction which has its own limits, in the absence of the accrual of a cause of action, there would not be the engagement of a jurisdiction to which, in our submission, any protective power would be genuinely ancillary.  The fact that as a matter of commercial fears, the fact that as a matter of personal relations, one party may have extremely good reason to suppose that the other party will do nothing to oblige the first party and may even be doing things to deprive the first party of intended benefits but not unlawfully is, in our submission, simply not to the point.

My learned friend, Mr Bell, I think – no, I am sorry – my learned friend, the Solicitor for WA, put the proposition that if we were successful this country would be, as it were, an outlier – my word, not his – that is, the only jurisdictions in the common law world without a power of the kind exercised in this case against my client.  Well, quite apart from the not inconsiderable exception for the United States that my learned friend volunteered, there is, of course, also the position of New Zealand which is rather clearer than my learned friend submitted – see paragraph 92 of our written submissions in‑chief.

In relation to the position first as a matter of the case law in this country about arbitration, the Tambel decision of Mr Justice Clarke in the New South Wales Supreme Court, volume 2, tab 15 – I do not need to take your Honours to it ‑ your Honours will recall that, just like the Channel Tunnel Case, the reasoning explicitly includes the arbitral and, indeed, in the Channel Tunnel Case, the common law means by which there is already a relation between the court and the arbitration even before the freezing order or the interlocutory injunction is sought; that is, the supervisory jurisdiction and also being the forum which is an alternative to the arbitration going ahead, not least in the case where there has been commencement of proceedings and a stay of those proceedings pending completion of the arbitration.

Now, that already indicates that arbitration is a special case, as one might expect, because in many ways it parallels and is a complete alternative, apart from final enforcement provisions, to litigation in the courts of law.  So one might expect that when one is looking at a system which the policy of the common law and public policy in repeated legislation supports as being for the public benefit, one might expect that there will be not only the continuing possibilities of invoking supervisory jurisdiction both statutory and common law in relation to arbitration, but there would also be acceptance of the possibility of a freezing order in appropriate cases.

Your Honours are familiar with a pattern that I think has been around for more than 120 years where arbitration Acts, recognising the incapacity of arbitrators to provide the machinery for applying the sanction of contempt, for example, with injunctions, have made by statute available either urgent or interlocutory injunctive and related jurisdiction in support of arbitrations.

In our submission, that stands in very considerable contrast to what is suggested here in relation to a foreign jurisdiction.  But we do understand that if you put together arbitrations, third parties – paragraph 57 of Cardile – and the foreign judgments that are this case, it is possible against us to say that in all of those it can be seen that the time has not yet come when a substantive jurisdiction of, in this case the Western Australian court being the court from whom the freezing order is sought, has been engaged.

The award has not been given in the arbitration.  The judgment against the primary wrongdoer has not yet been obtained, in the case of the third party, and in the case of a foreign judgment, there has not yet been a foreign judgment of which registration is being sought.  With respect, we accept that there is, at first sight, real force in the similarity that would then lead to the consequence that if freezing orders be accepted in relation to arbitrations, if freezing orders be accepted in relation to third parties, then why should they not also be accepted in relation to foreign jurisdictions.

The first thing to be said is this.  There is this element that is quite different in relation to foreign judgments; namely, it is another sovereign system of administering justice with its own capacities to protect its own process, including the judgment that emanates that may then come to be registered and enforced in a number of different countries.  The worldwide Mareva, so called, recognises that possibility in courts that have found they have that power, or have been given that power, more often, by parliaments.  Those, of course, would relate in precisely the kind of non‑money judgment which would not be enforceable as such in this country, unless and until the reciprocity has been recognised.

That, in our submission, does not have any analogous element in the case of arbitrations or third parties who may be holding property which ought to be available to discharge the obligations under a future judgment in pending litigation.  It is an element which has been addressed by Parliament by the scheme of the Act.  It has been addressed by means which are wholly inapt for judicial attention, namely, the assessment of sufficient reciprocity.  It is for all of those reasons, in our submission, that there is no room for a further step to be taken without, in our submission, intruding into an area of the law which, by dint of the Foreign Judgments Act, we know Parliament has already ventured to express a scheme, which, whether it has gaps or not, is a scheme that does not presently provide for freezing orders in aid of judgments from jurisdictions whose non‑money judgments could not be registered and enforced under the Act.

Of course, if this Court, as a matter of common law, were to find that there were such a power in relation to jurisdictions that do not reflect that reciprocity then, in our submission, by judicial law, Australia would have been losing something which is of considerable importance; the attractiveness to other jurisdictions to bring themselves within treaty, or other international acceptance, of reciprocity of a kind obviously that would benefit people in Australia as well.  It is for those reasons, in our submission, that as tempting as it may be to assimilate the superficially but not finally similar categories of arbitration, third parties and foreign judgments, because foreign judgments has been the subject of such attention from Parliament, the Court should hold back from doing so.  May it please your Honours.

FRENCH CJ: Yes, thank you, Mr Walker. Having regard to the observations you have made concerning section 20 and the absence of any explicit reference to those in earlier argument – I appreciate that you argue that it is by way of necessary response to arguments put by the other parties – the Court is of the view that it would be assisted if the other parties were to file submissions, if any, on that question within seven days.

MR WALKER:   May it please the Court.

FRENCH CJ:   The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow.

AT 4.04 PM THE MATTER WAS ADJOURNED