Re Peat Resources of Australia Pty Ltd; ex parte Pollock
[2004] WASCA 122
•11 JUNE 2004
RE PEAT RESOURCES OF AUSTRALIA PTY LTD; EX PARTE POLLOCK [2004] WASCA 122
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 122 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:128/2003 | 4 FEBRUARY 2004 | |
| Coram: | MALCOLM CJ STEYTLER J MCKECHNIE J | 11/06/04 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Appeal FUL 128 of 2003 dismissed, Appeal FUL 180 of 2003 allowed | ||
| A | |||
| PDF Version |
| Parties: | KEVIN TREVOR POLLOCK MICHAEL JOSEPH PATRICK RYAN and IAN CHARLES FRANCIS as joint and several Receivers and Managers or Receivers of the Companies in Receivership ALLEN BRUCE CARATTI RIVIERA ASSET PTY LTD (ACN 102 241 743) BOBAN PTY LTD (ACN 071 406 589) MAMMOTH INVESTMENTS PTY LTD (ACN 008 735 797) |
Catchwords: | Words and phrases Authorisation by ASIC delegate to "National Australia Bank Limited and the Receivers under Corporations Act, Div 1 of Pt 5.9, the Australian Securities and Investments Act, s 11 and all other enabling powers to make an application under Corporations Act, Div 1 of Pt 5.9 in relation to the Companies in Receivership" Whether authority required the Bank and the Receivers to act jointly or whether the Receivers alone or the Bank alone could make the application The word "and" in the present context was used disjunctively or dispersively Bank and Receivers authorised to act separately or together Civil procedure Appeal against stay of proceedings Whether a fresh application for orders made while an earlier application on the same subject matter is subject to an appeal constitutes an abuse of process Whether earlier proceedings had been discontinued by a formal undertaking not to pursue those proceedings No formal discontinuance procedure in the Rules of the Supreme Court 1971 (WA) Not an abuse of process to discontinue proceedings in order to bring the same proceedings later with an increased prospect of success Parties in virtually the same position as if there had been discontinuance Fresh application not made with the purpose of defeating the rights in the appeal Respondents never in jeopardy of being the subject of two proceedings on the same subject matter Fresh application not an abuse of process |
Legislation: | Acts Interpretation Act 1901 (Cth), s 15AA Bankruptcy Act 1966 (Cth), ss 149, 149 A Controlled Substances Act 1984 (SA), s 52 Corporations Act 2001 (Cth), ss 9, 596A, 596B Interpretation Act 1984 (WA), s 18 Official Secrets Act 1920 (Eng), s 7 Police Offences Act 1953 (SA) Social Welfare Ordinance 1964 (NT), ss 11, 17, 18 |
Case References: | Associated Newspapers Ltd v Wavish (1956) 96 CLR 526 Attorney-General v Beauchamp [1920] 1 KB 650 Barker v Barker and Wade (1976) 13 ALR 123 BP Australia Ltd v South Australia (1982) 31 SASR 178 Delaney v Celon (1980) 24 SASR 443 Ercegovic v Higgins (1987) 45 SASR 189 Gillespie v Ford (1978) 19 ALR 102 Green v The Queen (2000) 9 NTLR 138 Harris v The Commonwealth [2003] WASCA 220 Jagelman v Sheahan (as liq of Moage Ltd) (2002) 41 ACSR 487 Kendle v Melsom (1998) 193 CLR 46 Mammone v Chaplin (1991) 54 A Crim R 163 Michael Joseph Patrick Ryan & Ian Charles Francis as Joint and Several Receivers and Manager or Receivers of the Companies in Receivership [2003] WASC 212 R v Oakes [1959] 2 QB 350 R v O'Neill; Ex parte Moran (1985) 58 ACTR 26 Re Kotses (1995) 132 ALR 409 Re The Licensing Ordinance (1968) 13 FLR 143 Re Trade Practices Tribunal; Ex parte Tooheys Ltd (1977) 16 ALR 609 Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd [2001] NSWSC 431 Simionato v Macks (1996) 19 ACSR 34. , Smith v Papamihail (1998) 158 ALR 451 Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 78 ALJR 105 Williams v Spautz (1992) 174 CLR 509 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : RE PEAT RESOURCES OF AUSTRALIA PTY LTD; EX PARTE POLLOCK [2004] WASCA 122 CORAM : MALCOLM CJ
- STEYTLER J
MCKECHNIE J
(Page 2)
- BRICOM PTY LTD (ACN 070 221 064) (Receivers and Managers appointed), NETGLORY PTY LTD (ACN 086 196 812) (Administrator appointed) (Receivers and Managers appointed) and WHITEWOOD PTY LTD (ACN 093 975 501) (Administrator appointed) (Receivers and Managers appointed) (the Companies in Receivership)
KEVIN TREVOR POLLOCK
Appellant (Applicant)
AND
MICHAEL JOSEPH PATRICK RYAN and IAN CHARLES FRANCIS as joint and several Receivers and Managers or Receivers of the Companies in Receivership
Respondents (Plaintiffs)
(Page 3)
- appointed), PASADENA HOLDINGS PTY LTD (ACN 058 609 635) (Administrator appointed) (Receivers and Managers appointed), KALGOORLIE CONTRACTORS PTY LTD (ACN 009 460 931) (Receivers and Managers appointed) (In Liq), BRICOM PTY LTD (ACN 070 221 064) (Receivers and Managers appointed), NETGLORY PTY LTD (ACN 086 196 812) (Administrator appointed) (Receivers and Managers appointed) and WHITEWOOD PTY LTD (ACN 093 975 501) (Administrator appointed) (Receivers and Managers appointed) (the Companies in Receivership)
BETWEEN : MICHAEL JOSEPH PATRICK RYAN and IAN CHARLES FRANCIS as joint and several Receivers and Managers or Receivers of the Companies in Receivership
- Appellants (Plaintiffs)
AND
ALLEN BRUCE CARATTI
RIVIERA ASSET PTY LTD (ACN 102 241 743)
BOBAN PTY LTD (ACN 071 406 589)
MAMMOTH INVESTMENTS PTY LTD (ACN 008 735 797)
Respondents (Applicants)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File Number : COR 115 & COR 282 of 2003
(Page 4)
Catchwords:
Words and phrases - Authorisation by ASIC delegate to "National Australia Bank Limited and the Receivers under Corporations Act, Div 1 of Pt 5.9, the Australian Securities and Investments Act, s 11 and all other enabling powers to make an application under Corporations Act, Div 1 of Pt 5.9 in relation to the Companies in Receivership" - Whether authority required the Bank and the Receivers to act jointly or whether the Receivers alone or the Bank alone could make the application - The word "and" in the present context was used disjunctively or dispersively - Bank and Receivers authorised to act separately or together
Civil procedure - Appeal against stay of proceedings - Whether a fresh application for orders made while an earlier application on the same subject matter is subject to an appeal constitutes an abuse of process - Whether earlier proceedings had been discontinued by a formal undertaking not to pursue those proceedings - No formal discontinuance procedure in the Rules of the Supreme Court 1971 (WA) - Not an abuse of process to discontinue proceedings in order to bring the same proceedings later with an increased prospect of success - Parties in virtually the same position as if there had been discontinuance - Fresh application not made with the purpose of defeating the rights in the appeal - Respondents never in jeopardy of being the subject of two proceedings on the same subject matter - Fresh application not an abuse of process
Legislation:
Acts Interpretation Act 1901 (Cth), s 15AA
Bankruptcy Act 1966 (Cth), ss 149, 149 A
Controlled Substances Act 1984 (SA), s 52
Corporations Act 2001 (Cth), ss 9, 596A, 596B
Interpretation Act 1984 (WA), s 18
Official Secrets Act 1920 (Eng), s 7
Police Offences Act 1953 (SA)
Social Welfare Ordinance 1964 (NT), ss 11, 17, 18
Result:
Appeal FUL 128 of 2003 dismissed
Appeal FUL 180 of 2003 allowed
Category: A
(Page 5)
Representation:
FUL 128 of 2003
Counsel:
Appellant (Applicant) : Mr K J Martin QC & Mr K L Christensen
Respondents (Plaintiffs) : Mr C G Colvin SC & Mr J A Thomson
Solicitors:
Appellant (Applicant) : Christensen Vaughan
Respondents (Plaintiffs) : Mallesons Stephen Jaques
FUL 180 of 2003
Counsel:
Appellants (Plaintiffs) : Mr C G Colvin SC & Mr J A Thomson
Respondents (Applicants) : Mr K J Martin QC & Mr K L Christensen
Solicitors:
Appellants (Plaintiffs) : Mallesons Stephen Jaques
Respondents (Applicants) : Christensen Vaughan
Case(s) referred to in judgment(s):
Associated Newspapers Ltd v Wavish (1956) 96 CLR 526
Attorney-General v Beauchamp [1920] 1 KB 650
Barker v Barker and Wade (1976) 13 ALR 123
BP Australia Ltd v South Australia (1982) 31 SASR 178
Delaney v Celon (1980) 24 SASR 443
Ercegovic v Higgins (1987) 45 SASR 189
Gillespie v Ford (1978) 46 FLR 297
Green v The Queen (2000) 9 NTLR 138
Harris v The Commonwealth [2003] WASCA 220
Jagelman v Sheahan (as liq of Moage Ltd) (2002) 41 ACSR 487
Kendle v Melsom (1998) 193 CLR 46
Mammone v Chaplin (1991) 54 A Crim R 163
(Page 6)
Michael Joseph Patrick Ryan & Ian Charles Francis as Joint and Several Receivers and Manager or Receivers of the Companies in Receivership [2003] WASC 212
R v Oakes [1959] 2 QB 350
R v O'Neill; Ex parte Moran (1985) 58 ACTR 26
Re Kotses (1995) 59 FCR 597
Re The Licensing Ordinance (1968) 13 FLR 143
Re Trade Practices Tribunal; Ex parte Tooheys Ltd (1977) 16 ALR 609
Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd [2001] NSWSC 431
Simionato v Macks (1996) 19 ACSR 34
Smith v Papamihail (1998) 88 FCR 80
Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797
Case(s) also cited:
Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 78 ALJR 105
Williams v Spautz (1992) 174 CLR 509
(Page 7)
1 MALCOLM CJ: These two appeals were heard together. They both arise out of the same set of circumstances. They both also involve the same issue regarding the construction of an authorisation by the Australian Securities and Investments Commission ("ASIC") dated 16 April 2003 for the purpose of Div 1 of Pt 5.9 of the Corporations Act 2001 (Cth) ("the Act"). The authorisation was in the following terms:
"AUTHORISATION FOR THE PURPOSE OF
CORPORATIONS ACT 2001 DIVISION 1 PART 5.9
WHEREAS:
A. MICHAEL JOSEPH PATRICK RYAN and CHARLES FRANCIS TAYLOR were appointed, pursuant to charges held by the NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937), as joint and several receivers and managers (or alternatively receivers) ("the Receivers") of assets, property and undertakings of the following companies ("the Companies in Receivership") on the following dates:
Companies | Date of appointment of Receivers |
ACN 008 798 025 | 27 March 2003 |
ACN 063 883 732 | 27 March 2003 |
ACN 064 032 631 (receivers and managers appointed) | 27 March 2003 |
ACN 009 470 124 | 27 March 2003 |
ACN 070 673 924 | 27 March 2003 |
ACN 086 368 578 | 27 March 2003 |
| 27 March 2003 |
(Page 8)
All Terrain Aust Pty Ltd ACN 075 227 56627 March 2003
| 27 March 2003 (receivers only) |
| 28 March 2003 |
ACN 058 609 635 | 4 April 2003 |
ACN 009 460 931 | 4 April 2003 |
| 4 April 2003 |
| 4 April 2003 |
(administrator appointed) | 4 April 2003 |
B. The NATIONAL AUSTRALIA BANK LIMITED is a creditor of the Companies in Receivership.
C. THE AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION ("ASIC") may in writing authorise a person to make an application or applications under the Corporations Act 2001 ("Corporations Act") Division 1 Part 5.9.
NOW THEREFORE:
I, ROBERT GEORGES BERNARD RASSOOL, being a person duly delegated by ASIC, do hereby, authorise the NATIONAL AUSTRALIA BANK LIMITED and the Receivers under Corporations Act Division 1 Part 5.9, the Australian Securities and Investments Act 2001 section 11 and all other enabling powers, to make an application under Corporations Act Division 1 Part 5.9 in relation to the Companies in Receivership.
(Page 9)
- Dated this 16th day of April 2003
Australian Securities & Investments Commission
By its delegate
(Signed)
…………………………………
Robert Georges Bernard Rassool
Senior Lawyer"
2 The short point raised by the appeals is whether the authority given by Mr Rassool to the National Australia Bank Ltd ("the Bank") "and" the Receivers, namely, the respondents in appeal FUL 128 of 2003 and the appellants in appeal FUL 180 of 2003 is to be read conjunctively or disjunctively. If it is to be read conjunctively, it would be necessary for the Bank and the Receivers to act jointly in making an application under Div 1, Pt 5.9 in relation to the Companies in Receivership. If the word "and" must be read conjunctively, then any purported exercise, by the Receivers only, of the power to make an application under Div 1, Pt 5.9 of the Act in relation to the Companies in Receivership would be invalid.
3 Section 596A of the Act provides that:
"The Court is to summon a person for examination about a corporation's examinable affairs if:
(a) an eligible applicant applies for the summons; and
(b) the Court is satisfied that the person is an examinable officer of the corporation or was such an officer during or after … [certain specified periods]."
4 No question arises in the present appeal whether any of the persons sought to be examined was an examinable officer. Section 596B provides that:
"(1) The Court may summon a person for examination about a corporation's examinable affairs if:
(a) an eligible applicant applies for the summons; and
(b) the Court is satisfied that the person:
(Page 10)
- (i) has taken part or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or
(ii) may be able to give information about examinable affairs of the corporation.
- (2) This section has effect subject to section 596A."
5 Section 596C provides that a person who applies under 596B must file an affidavit that supports the application and complies with the rules and that the affidavit is not available for inspection except so far as the Court orders. Section 596D is a machinery provision in relation to the content of the summons which is to require the relevant person to attend before the Court at a specified place and at a specified time on a specified day, being a place, time and day that are reasonable in the circumstances; and to be examined on oath about the corporation's examinable affairs (s 596B). A summons under s 596A or 596B may require the production of specified books that are in the person's possession and relate to the corporation or any of its examinable affairs.
6 Under s 9 of the Corporations Act 2001, the term "eligible applicant" in relation to a corporation includes:
"… a person authorised in writing by ASIC to make:
(i) applications under the Division of Part 5.9 in which the expression occurs; or
(ii) such an application in relation to the corporation."
7 Mr Ryan and Mr Taylor, in their capacity as Receivers of the relevant Companies, obtained orders to conduct examinations into the affairs of the Companies in Receivership, pursuant to Pt 5.9 of the Corporations Act in COR 115 of 2003. Those orders were obtained on the basis that they were eligible applicants by reason of the authority provided by ASIC.
8 The Bank did not join in the applications made by the Receivers.
9 On 17 April 2003, the Receivers commenced proceedings against the appellant, Mr Pollock, and others, claiming damages and delivery up of
(Page 11)
- plant and equipment alleged to be the subject of charges in favour of the Bank, namely, action CIV 1441 of 2003.
10 On 17 April 2003, the Receivers also applied for an order under s 596A of the Act for the examination of Mr Pollock in relation to the examinable affairs in relation to nine of the Companies in Receivership. On 5 May 2003, an order was made requiring Mr Pollock to attend for examination. Other orders were made requiring the attendance of others for examination and the production of documents.
11 On 3 June 2003, the Receivers and the Bank applied to amend the existing proceedings to claim that the trademark and business name "Soils Ain't Soils" were assets of certain of the Companies in Receivership and subject to charges in favour of the Bank. On 10 June 2003, the Receivers and the Bank commenced proceedings against Mr Pollock and others, claiming certain of the assets of the Companies in Receivership. These proceedings were in action CIV 1641 of 2003.
12 On 13 June 2003, Mr Pollock appeared to be examined and was represented by counsel. The Receivers were represented at the examination. Orders were made for the examination to proceed in private. An order that officers of the Bank be permitted to attend the examination was made without objection from counsel for Mr Pollock. Other orders were made for documents produced to be released to the Receivers.
13 On 28 July 2003, the Receivers applied for a further order under s 596A for the examination of Mr Pollock in relation to the affairs of five other Companies in Receivership. That order was made on 31 July 2003. Other orders were made requiring the attendance of others for examination and the production of documents.
14 On 6 August 2003, Mr Pollock applied to set aside all of the examination summonses and directions to produce documents filed in COR 115 of 2003. On 20 August 2003, Master Sanderson dismissed that application. It is that decision which is the subject of Mr Pollock's appeal against Master Sanderson's decision, namely, FUL 128 of 2003 ("the first appeal").
15 The sole issue in the first appeal is whether the authority given by ASIC was an authority which required the Receivers and the Bank to act jointly. An application for a stay of proceedings pending the hearing of the first appeal was refused by Master Sanderson on 3 September 2003.
(Page 12)
16 In the meantime, Mr Rassool of ASIC issued a further authorisation dated 29 August 2003, which was only an authorisation to the Receivers and excluded the Bank, but had the following addendum, as recorded in the reasons for judgment of Master Sanderson in Michael Joseph Patrick Ryan & Ian Charles Francis as Joint and Several Receivers and Manager or Receivers of the Companies in Receivership [2003] WASC 212, which was in the same terms as the previous authorisation, but with the addition of the following, as set out in the reasons of Master Sanderson, at [12], namely:
"This authorisation takes effect:
(a) from the date of this authorisation; and further
(b) to the extent permitted by law and to the extent that an authorisation signed by me on 16 April 2003 was ineffective to authorise the Receivers to make their application in COR 115 of 2003 under Corporations Act Division 1 Part 5.9 in relation to the Companies in Receivership, from 16 April 2003."
17 The Receivers sought and obtained further orders for examination based upon the second authorisation. They did so on the basis that they did not intend to rely on, or further pursue, compliance with any orders issued in COR 115 of 2003, the subject of the first appeal.
18 In COR 282 of 2003 orders were made on 12 September 2003 for the examination of the respondents in appeal FUL 180 of 2003, namely, Mr Caratti, Riviera Asset Pty Ltd, Boban Pty Ltd and Mammoth Investments Pty Ltd, who were also directed to produce documents. Those parties made an application to set aside the summons, contending that it was an abuse of process for the Receivers to apply for the summons because the Receivers had already applied for and obtained the issue of an identical summons, resulting in the making of identical directions in relation to Mammoth Investments Pty Ltd and Boban Pty Ltd in the proceedings COR 115 of 2003, the subject of the first appeal. Master Sanderson upheld these contentions on 4 November 2003 and made an order staying further proceedings in COR 282 on 11 November 2003.
19 On 19 November 2003, the Receivers obtained leave to appeal against the orders of Master Sanderson. This appeal was assigned the designation FUL 164 of 2003. Due to an oversight, the appeal was not entered in time and was deemed to have been discontinued. On
(Page 13)
- 9 December 2003, the Receivers obtained fresh leave to appeal out of time in FUL 180 of 2003. Orders were made that the papers in FUL 164 of 2003 stand as the papers in FUL 180 of 2003 which became "the second appeal".
Appeal 128 of 2003
20 It was submitted on behalf of Mr Pollock in the first appeal that the authority given to "the National Australia Bank Ltd and the Receivers … in relation to the Companies in Receivership" incorporated the expression "Companies in Receivership" as a defined term referring back to Recital A, which refers to some 15 corporations. Recital B recorded that the Bank was a creditor of all of the Companies in Receivership. The Bank was the appointor of the Receivers pursuant to charges held by the Bank as joint and several Receivers and Managers or, alternatively, Receivers.
21 It was submitted on behalf of the appellants in the first appeal that the authority only authorised the Bank with the Receivers acting jointly as the identified eligible applicants. It was further contended that the April 2003 authorisation was not drawn severally as between the different nominated entities. The word "and" used between the reference to the Bank and the Receivers was contended to be demonstrably conjunctive in effect. Consequently, the word "and" should not be read disjunctively and there was no warrant to depart from a normal meaning of the word "and". It was contended that, for this reason, the applications to the Court to issue the examination summonses and, in particular, to Mr Pollock, having been made by the Receivers without the Bank joining in the application, were invalid for the purposes of seeking orders either under s 596A or s 596B. The Receivers, of course, had themselves been appointed by the Bank.
22 The question in this case is whether there is any occasion to depart from the ordinary meaning. It is to be noted that the respondents, Mr Ryan and Mr Taylor, were appointed as Joint and Several Receivers and Managers (or, alternatively, Receivers) of the assets, property and undertakings of the relevant companies. It was in that context that the authority was conferred on the Bank and the Receivers under the Corporations Act to make an application under Div 1, Pt 5.9 in relation to the Companies in Receivership.
23 In ordinary speech and writing the word "and" is used disjunctively, in contrast to the word "or" which is used disjunctively. Sometimes, however, "and" has been construed disjunctively and "or" has been construed conjunctively in a particular context. On the face of it, the
(Page 14)
- authority in question is a joint authority to the Bank and the Receivers. As I indicated at the hearing of the appeal, such a joint authority struck me as somewhat odd. It would have been obvious that the interests of the Bank and the Receivers would not necessarily coincide. Hence, the present represents an unusual circumstance in which the word "and" appears to be used disjunctively. However, the purposive approach to interpretation in a statute includes reading "and" for "or" and vice versa if the purpose of the legislation suggests such an interpretation. At the Commonwealth level this is provided for in s 15AA of the Acts Interpretation Act 1901 (Cth). This approach was adopted by Carr J in Smith v Papamihail (1998) 88 FCR 80 at 88 - 89. The equivalent provision in Western Australia is to be found in s 18 of the Interpretation Act 1984 which provides that:
"Purpose or object of written law, use of in interpretation
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object."
25 As Blackburn J pointed out in Re The Licensing Ordinance (1968) 13 FLR 143 at 146 - 147, the circumstances in which the courts have been prepared to modify the usual meaning of "and" and "or" respectively have been limited to two categories. First, the Court may be persuaded that the legislature simply made a mistake and the wrong conjunction has been used. R v Oakes [1959] 2 QB 350 is an example. Section 7 of the Official Secrets Act 1920 (Eng) provided that:
"Any person who attempts to commit an offence under the [Official Secrets Act 1911] or this Act, or solicits or incites or endeavours to persuade another person to commit an offence, or aids or abets and does any act preparatory to the commission of an offence under the [Act of 1911] or this Act, shall be guilty of [an offence]."
26 A motion to quash the indictment on the ground that it disclosed no offence known to the law was refused. It was held that the word "or" should be read in place of the word "and" in the phrase "and does any act
(Page 15)
- preparatory to" in s 7. The justification was that no intelligible meaning could otherwise be given to the phrase. Parker LCJ, delivering the judgment of the Court, concluded at 356 that whichever way the provision was read on its face, "an absurd result is obtained". This approach was adopted in that case notwithstanding that the resulting interpretation was less favourable to the accused. Reliance was placed on Attorney-General v Beauchamp [1920] 1 KB 650 in which a construction was adopted by the Court even where it was less favourable to the subject. In that case Rowlatt J, having referred to the "manifest absurdity" which would arise if a literal construction was given to the relevant statutory provision, said at 657:
"It is not really a question of adding anything to the section, for it is quite clear what the intention was, and the omission of certain words that you would expect to find there is nothing more than a faultiness of expression."
"That seems to be the reasonably plain meaning of the section which we have to consider, while it is in agreement with the earlier legislation on the subject."
28 As pointed out in Pearce and Geddes, Statutory Interpretation in Australia (5th ed 2001), there were traditionally two offences, one of aiding or abetting and the other of doing an act preparatory to the commission of the offence. In those circumstances it was highly unlikely that the legislature had intended them to be combined into one new offence.
29 In Barker v Barker and Wade (1976) 13 ALR 123 it was held that the words "as a wife and mother in s 75 of the Family Law Act 1975 (Cth) should be read disjunctively: see also Re Trade Practices Tribunal; Ex parte Tooheys Ltd (1977) 16 ALR 609 at 616 - 617, per Franki J; Delaney v Celon (1980) 24 SASR 443 at 445, per Jacobs J; BP Australia Ltd v South Australia (1982) 31 SASR 178 at 189 - 191, per Wells J; R v O'Neill; Ex parte Moran (1985) 58 ACTR 26 at 31, per Kelly J; Green v The Queen (2000) 9 NTLR 138 at 144, per Angel J; and per Mildren J at 157 (with both of whom Gallop J agreed).
30 In Associated Newspapers Ltd v Wavish (1956) 96 CLR 526 the High Court construed "and" as meaning "or" in the context of s 169 of the Police Offences Act 1928-1954 (Vic). Section 169 provided that:
(Page 16)
- "(1) In this Part - 'obscene' (without limiting the generality of the meaning thereof) includes -
(a) tending to deprave and corrupt persons whose minds are open to immoral influences; and
(b) unduly emphasising matters of sex, crimes of violence, gross cruelty or horror."
In relation to the definition of the word 'obscene' in s 169 (1), we are of opinion that the word 'and' does not mean that what is stated in pars (a) and (b) provides cumulative conditions which must be both fulfilled before an 'article' can fall within that definition. It is enough if the article has the tendency described in (a) or has the undue emphasis described in (b). But at the same time we are of opinion that sub-s (2) applies in every case and that in arriving at a conclusion as to the character of a particular article which is the subject of a prosecution, the tribunal must, in determining that question, have regard to the matters which are stated in pars (a), (b) and (c) of sub-s (2). That is to say, those are considerations which must be taken into account in determining the issue which arises under par (a) or par (b) of the definition of the word 'obscene', as the case may be."
32 Counsel for the respondents in the first appeal and the appellants in the second appeal, Mr Colvin SC, contended that it was not necessary, for the purposes of the construction for which the Receivers contended, to read "and" as "or". Rather, as he put it, it was a question of identifying the component propositions that are the subject of the conjunction "and". There were two alternatives. As he put it, the component propositions might be the two parties or the component propositions might be two authorities. So the instrument might be seeking to say, as was contended for on the part of Mr Pollock, that A and B together may make an application or, alternatively, it might be an authority for either A or B to make an application or both A and B could make an application. In other words, "A and B may do C" was open to the construction that either A and B together may do C or that A may do C and B may also do C. Counsel illustrated the point on the basis that he had two daughters, C and
(Page 17)
- M. If he said to them "C and M can buy an ice-cream", this would enable them both to buy an ice-cream, or each of them separately to buy an ice-cream. The failure of one of them to do so would not disqualify the other. Nor did it mean that the two of them were together to buy one ice-cream and share it. It meant that each of the two of them may have an ice-cream. If there is ambiguity, then it would be necessary to either add "each" or "together" or some similar form of words. There was a second illustration. If the father said, "I allow Catherine and Madeline to go to the park", that may mean each of them could go separately to the park. If one adds knowledge that Catherine is 14 years of age and Madeline is three years of age, the context informs the construction between the two possibilities which would suggest that both should go together.
33 In the present case, the issue whether the Bank and the Receivers acting together were authorised raised a question whether there was an identity of interests. If there were, that might tend to suggest that the two parties were jointly authorised.
34 In my opinion, although in many respects the interests of the Bank and the Receivers were common, they were not entirely common because of the duty of the Receivers to act on behalf of the chargor under an instrument. In addition, the context in which the authorisation was given is relevant, namely, the authorisation to make an application for an order for examination. What would be the practical reason why an application for an order for examination could only be made if the Receivers and the Bank jointly applied, bearing in mind that the Bank was the appointor of the Receivers? Such a construction affords no protection and responds to no identifiable difficulty or concern on the part of the regulatory authority. Consequently, there would be nothing in the character of the two parties authorised to lead to the conclusion that a joint application between the Bank and the Receivers was required, as distinct from an authority granted to the Bank, on the one hand, and an authority granted to the Receivers, on another.
35 In this respect, the learned Master said, as appears from p 372 of the transcript (appeal book p 9):
"The argument put by the applicant was to the effect that the authorisation in those terms authorised only a joint application by National Australia Bank Ltd and the receivers. The point of construction was the interpretation of the word 'and' between 'National Australia Bank Ltd' and 'receivers'. The proper construction of that authorisation is that it authorises both
(Page 18)
- parties, either the National Australia Bank or the receivers to make an application. In other words, I am satisfied that the use of the word 'and' in the authorisation is disjunctive rather than conjunctive.
In reaching that interpretation I think it's necessary to bear in mind just the nature of the authorisation granted and the purpose for which it's granted. There is in this case no reason at all why any application should be joint. I think that's obvious from the circumstances of the application itself. Therefore I'm satisfied that the application was properly brought by the receivers, the plaintiffs in their own right, and it is not necessary for the application to be joint."
36 The application was in fact made only by the Receivers. In my opinion, that application was one which was within the scope of the first authorisation which authorised the Bank, on the one hand, and the Receivers, on the other, in a context where the word "and" was used disjunctively or dispersively: cfMammone v Chaplin (1991) 54 A Crim R 163. That case was concerned with the construction of s 52 of the Controlled Substances Act 1984 (SA) which confers certain powers on an "authorised officer". That term is defined in s 4 of the Act as:
"A person who is an authorised officer for the purposes of Part VII."
37 Section 50 provides that authorised officers for the purposes of that Part are:
"(a) a member of the police force; and
(b) any other person appointed by the Minister, by instrument in writing, to be an authorised officer for the purposes of this Part."
38 The Minister must provide the authorised officers with a certificate of identification in the prescribed form and, by subs (3) upon demand by a person in relation to whom the powers under this part of the Act are being exercised the officer shall produce the certificate of identification for inspection by that person.
39 Mammone v Chaplin was concerned with s 52(4) which provided that an authorised officer:
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- "must not exercise the powers conferred by sub-section (1)(a) and (b) except upon the authority of a warrant issued by an officer of police, a special magistrate or a Justice, unless the powers are being exercised in relation to premises that are being used in the course of an activity in respect of which a licence, authority or permit has been granted under this act."
40 "Premises" were defined in s 4 as meaning "any land, building, structure, vehicle, vessel or aircraft". Section 52(9) provided that:
"Where an authorised officer who is a member of the police force suspects on reasonable grounds that a substance that would afford evidence of an offence against this Act is in any vehicle, vessel or aircraft, the officer may -
(a) require the driver of the vehicle, the master of the vessel or the pilot of the aircraft to stop the vehicle, vessel or aircraft; and
(b) detain and search the vehicle, vessel or aircraft; and
(c) seize and remove from the vehicle, vessel or aircraft anything that the officer has reasonable cause to suspect affords evidence of an offence against this Act."
41 Subsection (10) provided that nothing in the section derogated from the power of a member of the police force to do anything pursuant to a general search warrant issued to him under the Police Offences Act 1953 (SA), but that provision was not applicable in the present case. Legoe J said at 171 that it had been submitted in relation to the application of subs (9), namely, the power of the police to search the vehicle, was based on the fact that the police had not stopped the vehicle. The vehicle was already stationary when the police initiated their search. It was submitted that the powers conferred by the section could only be exercised when all of the matters in subs (9) were relied upon by the investigating officer.
42 As Legoe J put it at 171 - 172:
"The argument really got down to what is the meaning of the word 'and' between subcll (b) and (c). The word can be read conjunctively or disjunctively depending on the context. I agree with counsel for the respondent that to read the powers in subs (9) as only available to the police or authorised officer if all (a), (b) and (c) are exercised would make nonsense of the
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- section. In my opinion the words in the subclauses should be read so as to empower the police officer entertaining the relevant suspicion to either require the driver to stop or to detain and search the vehicle or to seize and remove anything from the vehicle which he has reasonable cause to suspect affords evidence of an offence."
43 A similar conclusion had been reached in Ercegovic v Higgins (1987) 45 SASR 189 at 198, per Johnson J.
44 Gillespie v Ford (1978) 46 FLR 297 was concerned with the interpretation of provisions in the Social Welfare Ordinance 1964 (NT). Section 11(2) of the Ordinance provided that:
"A welfare officer shall exercise such powers and perform such duties and functions as he is directed by the Administrator to exercise or perform or as are prescribed."
45 Section 17(1) of the Ordinance provided that:
"The Administrator, the Director and a welfare officer … may authorise a person … to enter and remain on a reserve."
46 Section 18(2) provided that:
"(2) … [A] welfare officer … may declare to [a] person that the person's right to enter or remain on the reserve … is suspended for such period not exceeding 30 days as the welfare officer specifies.
(3) Upon the application of the Director, a court of summary jurisdiction may … order that the right of a person to enter or remain on a reserve … shall be, for the period specified in the order, suspended.
…
(5) A power to authorise a person to enter and remain on a reserve or to declare or order that the right of a person to enter or remain on a reserve … is or shall be suspended includes a power to revoke the authorisation, declaration or order."
47 On 14 January 1978 the Administrator of the Northern Territory authorised a Mr Gillespie, a welfare officer, to suspend the right of a
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- person to enter or remain on a reserve. On 18 January, at the request of the Commonwealth Minister for Aboriginal Affairs, the President of the Council signed a notice dismissing the plaintiff employees. On the same day the welfare officer signed notices effective from 14 February purporting under s 18(5) of the Ordinance to revoke the authority of each of the plaintiffs to stay on the reserve.
48 The plaintiffs were given no reason for the revocation of their authorisations, nor were they afforded any opportunity to be heard on the matter. There was no question of any misconduct or failure to perform duties on their part. The plaintiff teacher's employment had been terminated before the notice was given revoking her authority to remain on the reserve. Before the expiry of the notices the three male plaintiffs were offered employment by another organisation which necessarily involved remaining on the reserve.
49 The plaintiffs claimed that the purported revocations of their authorities to enter and remain on the reserve were invalid. One of the grounds claimed was that s 17(1) conferred no power on the welfare officer alone to authorise a person to stay on a reserve and he, therefore, had no power to revoke that authority.
50 It was held that the holders of all three offices enumerated in s 17(1) did not have to act together. The word "and" had a cumulative meaning but also dispersive effect. This was supplied by the context of the section. To hold otherwise would cause a result so extraordinary that to make practical sense of the provision the Court should, in effect, read the word "and" as if it were "or". In the end the purported revocations of authority to enter and remain on the reserve were declared void because they constituted a denial of natural justice.
51 Re Kotses (1995) 59 FCR 597 was concerned with the construction of ss 149 and 149A(3)(b) of the Bankruptcy Act 1966 (Cth). Section 149(1) provided that:
"Subject to section 149A, a bankrupt is, by force of this subsection, unless sooner discharged in accordance with Division 3, discharged from bankruptcy in accordance with this section."
52 The section went on to provide a scheme for automatic discharge after the effluxion of specified periods of time, and for the entry of the discharge in the record, without the need for any application by the bankrupt or the trustee. Section 149A provides for where an objection to
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- automatic discharge is filed and makes provision for the extension of the period of bankruptcy. The section also provides for the situation where the objection is withdrawn or cancelled before the extended period expires in subs (3) as follows:
"If the objection is withdrawn or cancelled:
(a) the objection is taken never to have been made; and
(b) if:
(i) the period specified in whichever of subsections 149(2), (3) and (4) applies in relation to the bankrupt has ended; and
(ii) no other objection against the discharge of the bankrupt is in effect; and
(iii) the bankrupt has not been discharged in accordance with Division 3;
- the bankrupt is taken to be discharged under section 149 immediately the objection is withdrawn or cancelled."
I am unable to accept this construction of the sections. The applicants argument does not give due weight to the opening words of s 149. The times at which an automatic discharge takes effect under that section are 'subject to section 149A'. In light of this qualification, in a case covered by the operation of s 149A, it could be expected that the date when discharge occurs would be specified in that section.
An objection may be withdrawn or cancelled either while the period of bankruptcy that would otherwise apply is still running, or after that period has expired. In my opinion it is to these two
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- separate situations that paras (a) and (b) of s 149A(3) are respectively directed. Paragraph (a) provides for the case where the objection is withdrawn before the ordinary s 149 period has expired. Then the s 149 time applies in the ordinary way as if the objection had never been made. But if the ordinary s 149 time has expired, then para (b)(i) attracts the provisions of para (b). Where subparas (ii) and (iii) are fulfilled, as they were here, then the concluding words of para (b) apply so that 'the bankrupt is taken to be discharged under section 149 immediately the objection is withdrawn or cancelled'.
Counsel for the applicant argues that s 149A(3) should not be read in this way because paras (a) and (b) are joined conjunctively by the word 'and', and this interpretation treats the two paragraphs as disjunctive. In my opinion the word 'and' is used here in the sense described by Blackburn J in Re Licensing Ordinance (1968) 13 FLR 143 at 147 …
Here there are no governing words which indicate that paras (a) and (b) are alternatives, such as appeared in the section of the Police Offences Act 1928 (Vic) considered in Associated Newspapers Ltd v Wavish (1956) 96 CLR 526 (where the dispersive effect was given by the word 'includes'). But the dispersive effect may nevertheless be given by the context in which the section appears, as was the situation in Gillespie v Ford (1978) 19 ALR 102 at 107.
In s 149A, paras (a) and (b) together cover the situations that may arise, and in my opinion they are alternative in their application."
54 In my opinion, the contentions advanced on behalf of the respondents in the first appeal should be upheld in this case on the basis that the word "and" in the first authorisation should be interpreted so that each of the Bank and the Receivers were authorised to apply separately or together. The consequence of that conclusion is that the first appeal should be dismissed.
Appeal FUL 180 of 2003
55 This was an appeal by the Receivers against an order made by Master Sanderson on an application in COR 282 of 2003 by the respondents, Allen Bruce Caratti ("Caratti"), Mammoth Investments Pty Ltd ("Mammoth"), Boban Pty Ltd ("Boban") and Riviera Asset Pty Ltd
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- ("Riviera") seeking to permanently stay the proceedings. The orders were sought on the basis that the summonses and directions represented an abuse of process.
56 Master Sanderson noted that in COR 115 of 2003 the Receivers obtained orders for a summons to be issued against Caratti and directions that Mammoth and Boban produce documents. In each case, namely, both COR 115 of 2003 and COR 282 of 2003, orders were made under s 596B of the Corporations Act.
57 The respondents are the same parties who were plaintiffs in COR 115 of 2003 and in COR 180 of 2003. They relied upon an authorisation issued by ASIC to satisfy the "eligible applicant" status required under s 596B(1)(a) as the precondition to the making of any order.
58 The learned Master referred to the application which was the subject of the first appeal. As at the date of hearing on 30 October 2003 and at the date of the delivery of reasons for judgment on the application, the Receivers, apparently for the purpose of avoiding having their position undermined by an adverse decision on appeal, made a fresh application for orders under s 596B and obtained virtually identical orders to those obtained in COR 115 of 2003.
59 It was contended on behalf of the respondents that this was an abuse of process. It was said that unless the Receivers conceded the appeal in COR 115 of 2003, orders made in those proceedings remained on foot and it was entirely inappropriate for the proceedings in COR 180 of 2003 to duplicate them. They should, therefore, not be allowed to stand.
60 The learned Master noted that the Receivers had not served an examination summons on the respondents Caratti, Boban or Mammoth.
61 The learned Master also noted that the Receivers had informed the respondents that they did not intend to rely upon or pursue further compliance with the summons issued to any person or entity in COR 115 of 2003. They were prepared to formally undertake to the Court not to rely upon, or pursue, any further compliance in relation to the examination summons to Caratti or the directions to Mammoth and Boban in COR 115 of 2003.
62 It was contended on behalf of the Receivers before the Master that there was no abuse of process as Caratti, Mammoth and Boban were not in jeopardy of being subject to two sets of proceedings in respect of the
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- same subject matter. They contended that it was not an abuse of process to institute new proceedings where, arguably, the former proceedings were defective, so long as the previous proceedings were not pursued. In making this submission, the Receivers relied upon the "discontinuance" cases. It is not an abuse of process for a plaintiff to discontinue a proceeding, merely in order to be able to bring the same proceeding later, in circumstances in which the plaintiff believed there would be a greater prospect of success or a more substantial recovery: Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd [2001] NSWSC 431.
63 The respondents contended that the discontinuance cases were of no relevance because there had been no discontinuance in this case. The present argument was based upon an abuse of process in reliance on the decision of Lander J in Simionato v Macks (1996) 19 ACSR 34. This was accepted by the learned Master, who held that the fact that while there were extant orders in COR 115 of 2003, albeit subject to appeal, identical orders had been made in these proceedings. Consequently, a stay was granted on the basis that the proceedings in COR 180 of 2003 were a duplication of the proceedings in COR 115 of 2003. Consequently, the current proceedings in COR 180 of 2003 were an abuse of process.
64 The appeal against the decision of the Master by the Receivers is on the single ground that the learned Master erred in law in holding that it was an abuse of process for the appellants to maintain the proceedings in COR 282 of 2003 ("the second proceedings") while there were extant orders in COR 115 of 2003 ("the first proceedings") and that the learned Master should have held that it was not an abuse of process for the appellants to maintain the second proceedings. The following particulars were relied upon:
"It is not an abuse of process for the appellants to maintain the Second Proceedings in circumstances where:
(1) The appellants have not served any examination summonses upon the first-named respondent in the First Proceedings, and have not sought to enforce any compulsory process against the other respondents in the First Proceedings;
(2) The appellants advised the respondents that they did not intend to rely upon or pursue further compliance with
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- summonses issued to any person or entity in the First Proceedings;
- (3) There was no provision in the Rules of the Supreme Court for discontinuing the First Proceedings or specifying the consequences of such discontinuance in respect of documents produced in the First Proceedings;
(4) The purpose of the Second Proceedings was to ensure that if the appeal in FUL 128 of 2003 succeeded against the learned Master's decision in the First Proceedings, so that the form of the appellants' authority to conduct the First Proceedings was held to be invalid, the appellants would not have conducted examinations pursuant to an authority which was not in the proper form;
(5) If the appeal in FUL 128 of 2003 succeeds, this will not affect the validity of the appellants' authority to conduct the Second Proceedings, on a proper construction of the terms of that authority, and therefore the Second Proceedings do not render nugatory the issue raised by the respondents in FUL 128 of 2003;
(6) The applicants have never been in jeopardy of being subject to two sets of proceedings in respect of the same subject matter."
65 As was contended by the appellants in the second appeal, it is not an abuse of process for a plaintiff to discontinue a proceeding merely in order to be able to bring the same proceeding later in circumstances in which the plaintiff believes there would be a greater prospect of success or a more substantial recovery: Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd (supra) at [33] where Palmer J said:
"It is not an abuse of process for a plaintiff to discontinue a proceeding merely in order to be able to bring the same proceeding later in circumstances in which the plaintiff believes there will be a greater prospect of success or a more substantial recovery: see eg Castanho v Brown & Root (UK) Ltd [1981] AC 557, at 576. These circumstances may legitimately include the possibility of a subsequent increase in the limit of recoverable damages due to legislative amendment (see Brown v Parker [1961] WAR 194) and the enhanced prospect of enforcing a verdict by commencing proceedings in another
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- jurisdiction (eg Castanho v Brown & Root (UK) Ltd (supra)). I would include amongst such circumstances the prospect of the plaintiff being able to conduct the second proceedings more effectively than the first by reason of an improvement in the plaintiff's financial position enabling the plaintiff to procure expert evidence which would have been prohibitively expensive at the time of the first proceedings. A fortiori is this so when the plaintiff's financial inability to conduct the first proceedings effectively is the result of the defendant's own act or omission, whether or not that act or omission ultimately proves to be legitimate."
66 I accept the submission that there is no requirement that all orders for examination and directions for production of documents in respect of a particular company or, as in this case, a group of companies, be sought in the same matter in the Corporations List. As a matter of convenience and practice, such applications are usually brought in the same matter, particularly where reliance is placed upon the same affidavit material to support applications for a number of orders. It is, however, entirely permissible for applications to be made in separate matters. The commencement in this case of a second matter in which applications for such orders were made was not, of itself, an abuse of process. In any event, there is no particular provision in the Rules of the Supreme Court 1971 for discontinuing a matter in which orders for examination and directions for production of documents have been obtained. Such matters do not proceed to a final judgment or order. There is nothing prevent a further order being obtained against the same party in respect of whom a previous order was made relating to the same affairs at a later date. The existence of the earlier order may be relevant to the exercise of the discretion of the Court whether to make an additional order: Jagelman v Sheahan (as liq of Moage Ltd) (2002) 41 ACSR 487. The second order would not necessarily be an abuse of the Court's process.
67 In the present case, it was submitted by counsel for the respondents that none of the orders made on the basis of the first authorisation in COR 115 of 2003 were extant at the time the applications were made, based upon the second authorisation in COR 282 of 2003, because the Receivers had informed Caratti, Mammoth, Boban and Riviera that they did not intend to rely upon or pursue further compliance with summonses issued to any person or entity in COR 115 of 2003. However, this only meant that it was not intended to enforce the orders, but the orders were still in existence. There was an application by Mr Caratti in COR 115 of 2003 to have that action stayed or dismissed. At that time it was said that
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- there was no intention to enforce the orders, but the fact was that the orders were still in existence, although it was proposed that they would not be enforced. Consequently, it would appear that, as a matter of practical reality, Caratti, Mammoth, Boban and Riviera were not and had not been in jeopardy of being subject to two sets of proceedings against them. This put the relevant parties in virtually the same position as if there had been a discontinuance and, given that there is no provision for discontinuance in such cases, the principles in the Running Pigmy Productions Pty Ltd case (supra) would apply so as to give rise to an estoppel.
68 In any event, it may be accepted that the applications in COR 282 of 2003 were not made with the purpose of defeating the rights in the first appeal because the determination of the issue in that appeal would not affect the validity of the orders made on the basis of the second authorisation. Rather, those orders were made with the purpose, which Master Sanderson accepted, of ensuring that, if the first appeal succeeded, the validity of subsequent examinations would not be called into question. This course was followed in circumstances where the appellant in the first appeal had failed in an application for a stay of the orders in COR 115 of 2003, pending the hearing of the appeal.
69 It was further contended that, contrary to the decision of the learned Master, the decision in Simionato v Macks (supra) does not lead to a different view. In that case, as in this, an order for an examination had been made which was the subject of an appeal. Pending the hearing of an appeal, a further application was brought for an order for examination which was the subject of further challenge. However, unlike the present case, there was an issue in the appeal against the first order that, if decided in favour of the appellant, would apply equally to the second order for examination. It was in that context that Lander J found the second order for examination to be an abuse of process. This was for the reason that it would have required the appellant, as his Honour said at 61, "to bring a further application to set aside … [the second] order, and presumably, a further appeal in relation to the same subject matter": see per Palmer J at [33] - [37].
70 I accept that, contrary to the decision of the learned Master, the decision in Simionato v Macks is not a decision to the contrary. As I have said, in that case, as in this, an order for examination was the subject of an appeal. Pending the hearing of the appeal a further application was brought for an examination which was the subject of a further challenge. However, unlike the present case, there was an issue in the appeal against
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- the first order that, if decided favourably to the appellant, would apply equally to the second order for examination.
71 In Simionato v Macks (supra), one of the grounds of appeal against the first order, if successful, would not have affected the validity of the second order. Lander J acknowledged this in terms that correctly indicated that, if this had been the sole ground, there would not have been an issue of abuse of process. However, his Honour went on to refer to a ground which was raised in relation to both orders. It was in this particular context that Lander J, at 62, found that the predominant purpose of the second order was to defeat the rights on appeal. As Lander J said, at 61-62:
"In my opinion, it was inappropriate for the liquidator to apply to the Court for an order for the examination of Mr Simionato in connection with companies in which there was extant an order for his examination, but which order was subject to appeal. The effect of the application, and the granting of the order of 12 September was to render nugatory an appeal which had not then been heard. It would have required, but for the fact that the Master set the order aside, Mr Simionato to bring a further application to set aside that order, and presumably, a further appeal in relation to the same subject matter. True it is that the order is in different form in as much that it only purports to be made under CL s 596B. However, it was not only upon that that matter that Mr Simionato was appealing. Mr Simionato was challenging the previous orders, not only upon the fact that those orders had been under both ss 596A and 596B, but also because of a more fundamental objection, namely, that the previous applications and the consequential orders had been actuated by a collateral purpose.
It was put that the order had been sought because new information had come to hand. That would justify the application and that part of the order which related to companies not previously the subject of the order, but does not justify the application and that part of the order relating to companies the subject of the first orders.
There was no need to obtain an order in relation to those companies unless the purpose of the order was to defeat Mr Simionato's appeal. The appeal against the first orders had effectively stayed the examination of Mr Simionato, but the
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- order of 12 September would have required his attendance, notwithstanding the appeal.
I can only think the predominant purpose of the application was to obtain a collateral purpose, namely, the defeat of whatever rights Mr Simionato might have had on appeal."
72 As a consequence it was held that the second application and the consequential order was an abuse of the process of the Court. His Honour did not hold that there was an abuse of process to the extent that the further order cured a procedural defect in the first, which is the position in the present case, but based his decision on the more fundamental objection that the pending appeal raised a ground applicable to both orders. In the present case, however, if the first appeal were to succeed, as it has, this will not affect the validity of the authority of the Receivers to conduct the examinations and obtain compliance with directions in COR 282 of 2003 because the second authority only takes effect from 29 August 2003, if the authorisation in COR 115 of 2003 was ineffective.
73 It was accepted by that in the context of the present proceedings it was not open for this Court to determine the proper construction of the second authorisation obtained under s 596B. That is an issue which counsel for the appellant in the first appeal will raise if and when this matter goes back to the learned Master. In my opinion, the stay of proceedings in the second appeal will come to an end upon the decision of the first appeal.
74 The order made in FUL 180 of 2003 was that the proceedings be stayed pending the determination of the appeal in FUL 128 of 2003. It follows that, as soon as the latter appeal is determined, the stay of proceedings will come to an end. By an affidavit of Paul Anthony Sheiner, sworn 3 October 2003, on behalf of Mammoth, the Receiver's solicitors, it was stated that their instructions were that:
"• the Receivers do not intend to rely on, or pursue any further compliance with, the summons issued to Kevin Trevor Pollock (or any other person or entity) in Supreme Court action COR 115 of 2003 pursuant to an authority issued to the Receivers by ASIC dated 16 April 2003; and
• the Receivers intend to apply for leave to issue a new summons to Kevin Trevor Pollock (and, if necessary, other recipients of summonses issued in COR 115 of 2003) in Supreme Court action COR 282 of 2003
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- pursuant to an authority issued to the Receivers by ASIC dated 29 August 2003.
The Receivers reserve all their rights, including their right to rely on this letter at the hearing of the appeal by Kevin Pollock of the decision of Master Sanderson in COR 115 of 2003."
75 Consequently, the summonses obtained against Mr Pollock and others in the first proceedings in COR 115 of 2003 are not to be pursued. It was reiterated that that authority was not the subject of any challenge by any party.
76 It follows from the conclusions which I have reached that appeal FUL 128 of 2003 should be dismissed and that appeal FUL 180 of 2003 should be allowed. I would invite submissions relating to the need for any ancillary orders and the costs of each of the appeals.
77 STEYTLER J: I have had the advantage of reading the judgment of the Chief Justice. I agree with him that appeal FUL 128 of 2003 should be dismissed and that appeal FUL 180 of 2003 should be allowed. However, I shall express some brief reasons of my own.
Chronology
78 It is convenient, first, to set out a short chronology of facts which are relevant to the two appeals, which were heard together.
79 On 16 April 2003 the Australian Securities and Investments Commission ("ASIC") provided to Messrs Michael Ryan and Charles Taylor ("the Receivers") in their capacity as "joint and several receivers and managers (or alternatively receivers)" of a number of named companies, and to the National Australia Bank Ltd ("the Bank"), a written authorisation ("the first authorisation") for the purposes of Div 1, Pt 5.9 of the Corporations Act 2001 ("the Act"), relevantly as follows:
"I, ROBERT GEORGES BERNARD RASSOOL, being a person duly delegated by ASIC, do hereby, authorise the NATIONAL AUSTRALIA BANK LIMITED and the Receivers under Corporations Act Division 1 Part 5.9, the Australian Securities and Investments Act 2001 section 11 and all other enabling powers, to make an application under Corporations Act Division 1 Part 5.9 in relation to the Companies in Receivership."
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80 The first authorisation recorded, by its preambles, the fact that the Receivers had been appointed as such by the Bank pursuant to charges held by it over the assets, property and undertaking of the named companies and also that the Bank was a creditor of those companies.
81 On the following day the Receivers applied (under matter number COR 115 of 2003) for an order under s 596A of the Act for the examination of a number of persons, including Mr Kevin Pollock (the appellant in FUL 128 of 2003), in relation to the examinable affairs (an expression defined in s 9 of the Act) of a number of the companies referred to in the first authorisation. That application (to which the Bank was not a party) relied upon the first authorisation in alleging that the Receivers were "an eligible applicant" for the purposes of s 596A (that phrase encompassing, by virtue of its definition in s 9 of the Act, a person authorised in writing by ASIC to make applications under Div 1 of Pt 5.9).
82 The application (of which we were not given a copy) came on for hearing on 5 May 2003 and, on that day, orders (of which we were also not given a copy) were made for the examination of Mr Pollock and others and also for the production of certain documents.
83 Mr Pollock was examined on 13 June 2003. He was represented by counsel. An order that officers of the Bank be permitted to attend the examination was made without objection by Mr Pollock's counsel.
84 Then, on 28 July 2003, the Receivers applied for a further order under s 596A of the Act for the examination of Mr Pollock and others in relation to the examinable affairs of five other companies which were in receivership. Again, we have not been provided with a copy of the application, which presumably also relied upon the first authorisation in alleging that the Receivers were an eligible applicant. Orders (a copy of which was also not made available to us) were made accordingly on 31 July 2003.
85 On 6 August 2003 Mr Pollock applied for orders setting aside "the examination summonses and directions to produce documents filed in these proceedings". He relied, in that respect, upon the terms of the first authorisation, contending, by his counsel, that it authorised only a joint application by the Receivers and the Bank, not an application by the Receivers only. Mr Pollock's application was heard by a Master on 20 August 2003. The Master dismissed it. His reasons were very brief. He said that he was satisfied, having regard to the nature and purpose of
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- the authorisation, that the word "and", where it first appears in that authorisation, is disjunctive and not conjunctive and that either the Bank or the Receivers could bring an application pursuant to the authorisation. An order accordingly was extracted on 20 August 2003.
86 On 27 August 2003 Mr Pollock lodged a notice of appeal against the Master's decision under matter number FUL 128 of 2003.
87 Two days later, on 29 August 2003, ASIC provided to the Receivers a second written authorisation ("the second authorisation") for the purposes of Div 1, Pt 5.9 of the Act. On this occasion the authorisation was directed only to the Receivers. It went on to provide that:
"This authorisation takes effect:
(a) from the date of this authorisation; and further
(b) to the extent permitted by law and to the extent that an authorisation signed by me on 16 April 2003 was ineffective to authorise the Receivers to make their application in COR 115 of 2003 under Corporations Act Division 1 Part 5.9 in relation to the Companies in Receivership, from 16 April 2003."
88 On 12 September 2003 the Receivers brought, in proceedings numbered COR 282 of 2003, an application under s 596B of the Act, relying upon the second authorisation, for orders requiring Mr Allen Caratti and others (being the company secretaries of Mammoth Investments Pty Ltd ("Mammoth"), Boban Pty Ltd ("Boban") and Riviera Asset Pty Ltd ("Riviera Asset")) to attend before a Registrar for examination in respect of the examinable affairs of four companies, each of which was in receivership. They also sought directions that each of those persons produce various documents. Orders accordingly were made by the same Master as had heard the earlier application.
89 On 18 September 2003 Mr Caratti filed an application seeking, inter alia, an order that the "examination summons" issued against him be set aside. On 23 September 2003 each of Mammoth, Boban and Riviera Asset filed a similar application in respect of the direction to produce documents directed to it. Each of the applications for an order setting aside the summons or direction, as the case may be, was brought upon the ground that the summons or direction amounted to an abuse of process because a precisely similar summons had been issued against Mr Caratti (albeit not served on him) in the earlier proceedings and similar directions
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- to produce documents had earlier been made in respect of (albeit not enforced against) each of Mammoth and Boban (but not, apparently, Riviera Asset).
90 On 30 September 2003 the solicitors for the Receivers wrote to the solicitors for Mr Pollock, Mr Caratti, Mammoth, Boban and Riviera Asset recording that they were instructed that:
"• the Receivers do not intend to rely on, or pursue any further compliance with, the summons issued to Kevin Trevor Pollock (or any other person or entity) in Supreme Court action COR 115 of 2003 pursuant to an authority issued to the Receivers by ASIC dated 16 April 2003; and
• the Receivers intend to apply for leave to issue a new summons to Kevin Trevor Pollock (and, if necessary, other recipients of summonses issued in COR 115 of 2003) in Supreme Court action COR 282 of 2003 pursuant to an authority issued to the Receivers by ASIC dated 29 August 2003."
91 On 7 October 2003 each of Mr Caratti, Mammoth, Boban and Riviera Asset amended his or its application so as to seek an order, in the alternative, that the proceedings under matter number COR 282 of 2003 be permanently stayed.
92 When the summonses to set aside or stay came on for hearing, the Receivers made available to the Master a copy of their letter dated 30 September 2003 and offered an undertaking that (as the Master put it) they would "not … rely upon, or pursue, any further compliance in relation to the examination summons … [earlier issued in respect of] Caratti or the directions … [earlier made in respect of] Mammoth and Boban in COR 115 of 2003".
93 However, in a judgment given on 4 November 2003, the Master found that the proceedings in matter COR 282 of 2003 were an abuse of process and that there should be a stay. Orders were made accordingly on 11 November 2003 in terms granting a stay of the proceedings, but only pending determination of the appeal in FUL 128 of 2003.
94 On 19 November 2003 the Receivers obtained leave to appeal against the order granting a stay. Due to an oversight, that appeal was not entered in time. This led to a fresh application for leave to appeal and
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- leave was granted on 9 December 2003, under matter number FUL 180 of 2003.
95 Against this background, I will deal with each appeal in turn.
FUL 128 of 2003
96 The first of the appeals, that in FUL 128 of 2003, turns upon a very short point. There are only two grounds of appeal, as follows:
"(1) The learned Master erred in law in holding that the use of the word 'and' in the authority granted by the Australian Securities and Investments Commission to the Respondents (Plaintiffs) and National Australia Bank Limited dated 16 April 2003 was disjunctive, rather than conjunctive.
(2) Given the concession by senior counsel for the Respondents (Plaintiffs) that the National Australia Bank Limited had played no part in the Respondents' (Plaintiffs') applications in the proceedings at first instance for the issue of examination summonses and directions to produce, the learned Master should have found that the making of those applications by the Respondents (Plaintiffs) alone had not been authorised by the Australian Securities and Investments Commission and set the summonses and directions thereby obtained by the Respondents (Plaintiffs) aside as a consequence."
97 I am not persuaded that the Master was in error in the respects contended for.
98 The word "and", where it first appears in the first authorisation, is capable of being read either disjunctively or conjunctively. That is to say, the authorisation is capable of being read as if the words "each of" appeared after the word "authorise" or as if the words ", acting together," appeared after the word "Receivers". However, when regard is had for the apparent context of the authorisation (although we were not provided with any of the documents which led up to the issue of that document) and its evident purpose, it seems to me that the word "and" was intended to be read disjunctively.
99 As the preamble to the first authorisation records, the Receivers had been appointed as such by the Bank. In those circumstances, and given
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- that the sole purpose of the authorisation was that of enabling the persons authorised to make an application in relation to the identified companies in receivership under Div 1 of Pt 5.9 of the Act, it is difficult to see what conceivable purpose could have been intended to be served by requiring the Bank and the Receivers appointed by it to act jointly in bringing an application of that kind. As the Chief Justice has said, such a construction of the first authorisation affords no protection and responds to no identifiable difficulty or concern on the part of ASIC, as the regulatory authority. Rather, it seems to me, the more sensible construction, and one which is in tune with the purpose of the authorisation, is that the word "and" is used in a disjunctive or dispersive way, so as to authorise either the Bank or the Receivers to make an application of the kind authorised. While it may be accepted that the word "and" is ordinarily used in a conjunctive sense (as to which see Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797 at [13]), each instrument must necessarily be construed in its own context and in accordance with its own terms and the cases which have been referred to by the Chief Justice (albeit each was decided in a rather different context and involved a question of statutory construction) provide adequate authority, if authority is required, for construing the word "and" as disjunctive where the context in which it is used reflects an intention that it be so understood, as, in my opinion, it does in this case.
100 While counsel for Mr Pollock placed some reliance upon the case of Kendle v Melsom (1998) 193 CLR 46 in contending for a conjunctive construction, it seems to me, with due respect, that that case lends little assistance in that regard. It is, of course, true that, where a plurality of persons is appointed to a single office (in that case the office of receiver and manager), the instrument so appointing them may require them to exercise their powers jointly. However, each instrument must, as I have said, be construed in its own context and according to its own terms and that proposition consequently adds little to the debate in this case. It may also be so that, as Brennan CJ and McHugh J said in the context of that case at [7] (and their Honours differed from the majority in their approach on this issue), if each of the plurality appointed to a single office exercised the powers of that office independently of the others, chaos could result. However, that proposition must necessarily depend upon the nature of the powers in question and it has little application in this case, given the limited nature of the power which might be exercised pursuant to the authority conferred.
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101 It consequently seems to me that the Master was right in his conclusion that either the Bank or the Receivers could make an application of the kind referred to pursuant to the first authorisation.
102 I would accordingly dismiss the appeal
FUL 180 of 2003
103 Of course, once the appeal in FUL 128 of 2003 is disposed of, the stay granted by the Master in COR 282 of 2003 comes to an end. However, I will address the merits of the appeal in matter FUL 180 of 2003 in any event, having been urged to do so by counsel for the Receivers.
104 In deciding to stay the proceedings in COR 282 of 2003 pending determination of the appeal in FUL 128 of 2003, the Master was guided by two considerations. The first was the decision of Lander J in Simionato v Macks (1996) 19 ACSR 34. The Master said that it had there been held that it was inappropriate for a liquidator to apply to the Court for an examination of an appellant in connection with companies in which there was extant an order for his examination but which order was subject to appeal and that the second application and the consequential order were an abuse of the process of the Court. He considered that the reasoning in that case was directly applicable to this. The second consideration was that, given the wording of the second authorisation, that authorisation was only effective if that in COR 115 of 2003 (FUL 128 of 2003) was ineffective. That being so, he said, until the appeal in FUL 128 of 2003 was resolved, there was doubt as to the status of the second authorisation and that, in itself, was a good ground for granting the stay.
105 As to the first of those considerations, in Simionato Lander J was faced with a situation in which orders had been made at different times by a Master, requiring the appellants to be examined. Appeals from the orders of the Master had been made to a Judge and, while those appeals were pending, further orders were made by a Master regarding examination in relation to other companies in the group. It seems that the appeal had been brought on two grounds. The first was upon the basis that the orders appealed against had been made under both s 596A and s 596B, when s 596A was not applicable. The second was that the prior applications, and the consequential orders obtained in respect of them, had been actuated by a collateral purpose. After the second set of orders for his examination had been made, Mr Simionato applied to set them aside upon the grounds that the first orders were still extant and subject to appeal and that it was consequently an abuse of process for the liquidator
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- to apply for further orders in relation to the orders the subject of appeal. The Master determined that the later orders "covered the same ground" as the earlier orders and ultimately set aside the later orders. The respondent liquidator appealed against that decision.
106 Lander J said (page 60):
"In this case I have already determined that it was not appropriate to issue a summons under s 596A, because there was no evidence that Mr Simionato was an examinable officer within the meaning of that extended definition in s 9, and so the appropriate order would be to allow the appeal to the extent that the first orders be varied to delete all references to s 596A. In other respects the orders ought to be confirmed.
… That renders it unnecessary, strictly, to consider the liquidator's appeal in relation to the setting aside of the orders of 12 September 1995. It has not been suggested that the making of the orders of 12 September 1995 … rendered any of the earlier orders which otherwise would have been valid, invalid, but only that the later applications and consequential orders themselves were an abuse."
107 His Honour went on to say (pages 61 and 62):
"In my opinion, it was inappropriate for the liquidator to apply to the court for an order for the examination of Mr Simionato in connection with companies in which there was extant an order for his examination, but which order was subject to appeal. The effect of the application, and the granting of the order of 12 September was to render nugatory an appeal which had not then been heard. It would have required, but for the fact that the Master set the order aside, Mr Simionato to bring a further application to set aside that order, and presumably, a further appeal in relation to the same subject matter. True it is that the order is in different form in as much that it only purports to be made under CL s 596B. However, it was not only upon that matter that Mr Simionato was appealing. Mr Simionato was challenging the previous orders, not only upon the fact that those orders had been under both ss 596A and 596B, but also because of a more fundamental objection, namely, that the previous applications and the consequential orders had been actuated by a collateral purpose."
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108 It is readily apparent from this that the present case is significantly different from that of Simionato. What seems to me to have been critical to the decision in Simionato is the fact that one of the points to be decided in the appeal, whether the applications had been actuated by a collateral purpose, arose, also, in the case of the later applications and it was only in that sense that the appeal was, as his Honour put it, rendered "nugatory" because, even if the appeal succeeded on that point, the orders made pursuant to the later applications would still be in force, unless and until set aside pursuant to an application brought for that purpose.
109 The granting of orders pursuant to the application which was based upon the second authorisation did not, in this case, render the appeal nugatory in the sense in which that term was used by Lander J. The second authorisation was in terms different to the first and the validity of the orders made on the application brought pursuant to that second authorisation was unaffected by the question to be decided in the appeal against the orders made in respect of the first authorisation. In those circumstances, and given the fact of the Receivers' undertaking, given not only to the parties affected but also to the Court, there was nothing in the bringing of the application pursuant to the second authorisation which should have been taken to amount to an abuse. While the second authorisation was expressed to have a retrospective operation, to the extent permitted by law (and the question whether it could lawfully have such an operation was not explored in these proceedings), that operation was said to exist only if the first authorisation was found to have been ineffective to authorise the prior applications by the Receivers, presumably in the (questionable) hope that the second authorisation could thereby validate the earlier applications and, hence, the orders made pursuant thereto, if they were otherwise invalid. However, the orders made in respect of the application made in reliance upon the second authorisation were necessarily prospective in their effect and, given the undertaking by the Receivers, could not result in any of the respondents in appeal FUL 180 of 2003 being required to comply with two sets of identical orders. I have earlier said that Mr Caratti had not been served with any summons pursuant to the earlier orders and that no earlier orders or directions had been enforced against either of Mammoth or Boban.
110 As to the second consideration which influenced the Master, it seems to me, with due respect, that he has misread the terms of the second authorisation. It is not correct to say that that authorisation was only effective if the first authorisation was ineffective. The words relied upon by the Master for arriving at that conclusion (and I have quoted them above) do not have that effect. They provide only, by par (a), that the
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- authorisation is to take effect from its date and, by par (b), that, to the extent permitted by law, and to the extent that the first authorisation was ineffective to support the earlier applications, it is also to take effect, retrospectively, from 16 April 2003. In other words, there is, on the face of the authorisation, no doubt as to the fact that it was intended to take effect prospectively, from the date of the authorisation, regardless of whether or not the prior authorisation had proved to be ineffective to support the earlier applications. The only aspect of its operation which depended upon the outcome of the appeal was, as I have said, its ability also to operate retrospectively, if that was lawfully possible. In those circumstances, the words relied upon provided no sufficient basis for the grant of a stay.
111 I would consequently allow the appeal in FUL 180 of 2003 and, if it matters given that the stay ordered by the Master has now ceased to operate, set aside the order made by the Master in that regard and substitute, in lieu, an order dismissing the application for a stay. I would hear further from the parties as regards the need for any ancillary orders.
MCKECHNIE J:
FUL 128 of 2003
112 The word "and" is a co-ordinating connective word. Although it connects equal words, here: "National Australia Bank Limited and the Receivers", it is a word which must always be read in context. Sometimes the context requires that it be read conjunctively; sometimes disjunctively. That does not mean that "and" must be read as "or". It is legitimately read as "and" in a disjunctive context such as a list or series.
113 It may be, as submitted by the appellant, the ordinary meaning of the word "and" is conjunctive: Victims Compensation Fund v Brown [2003] HCA 54; 77 ALJR 1797 per Heydon J at [13]. However, Heydon J thereafter conducted a textual examination to confirm that the ordinary meaning applied.
114 The Master held that the nature and purpose of the authorisation required a disjunctive reading. For the reasons expressed by Malcolm CJ and Steytler J the Master was correct.
115 In the present case, a conjunctive meaning would advance no good purpose. On the other hand reading the word "and" disjunctively does advance the purpose of the Corporations Law and the grant of authority thereunder.
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116 The appeal should be dismissed.
FUL 180 of 2003
117 The impugned order in appeal FUL 180 of 2003 is an order by the Master made on Armistice Day 2003:
"1. The proceedings by stayed pending determination of the appeal in FUL 128 of 2003."
118 With the delivery of judgment in these proceedings, the stay has now expired. However, because there was an order for costs made against the receivers it is appropriate to determine the appeal.
119 The Master's decision is cited as Michael Joseph Patrick Ryan & Ian Charles Francis as Joint and Several Receivers and Manager or Receivers of the Companies in Receivership [2003] WASC 212.
120 In granting a stay, the Master principally relied on Simionato v Macks (1996) 19 ACSR 34. For the reasons expressed by Steytler J, that case is clearly distinguishable and of no assistance to the present facts. I also agree with Steytler J that the conclusion of the Master at [13] as to the form of the second authorisation is wrong.
121 There is no general principle that commencing a fresh proceeding while another proceeding is extant is always an abuse of process. Much will depend on the circumstances. For example, in Harris v The Commonwealth [2003] WASCA 220, an applicant who instituted fresh proceedings, while maintaining an appeal from a decision, did not abuse the Court's process by continuing the appeal.
122 There is nothing in the circumstances which could lead to a conclusion that the receiver's second application was an abuse of process and this appeal must be upheld.
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