Rochford v Dayes

[1989] HCATrans 34

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl04 of 1987

B e t w e e n -

DENNIS ANTHONY ROCHFORD

Plaintiff

and

EDWARD DAYES

First Defendant

GEORGE ARCHER

Second Defendant

NORTH QUEENSLAND BACON

COMPANY PTY LTD

Third Defendant

Application by defendants to set

aside the writ as against third

and fourth defendants and for

remitter

Rochford

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 FEBRUARY 1989, AT 10.02 AM

(Continued from 2/12/88)

Copyright in the High Court of Australia

SlTl/1/RB 24 24/2/89

MR A.R. ASHBURNER:  May it please Your Honour, I appear for the

first, second and third defendants. As Your Honour

may recall, the fourth defendant has not disappeared

from the suit on the last occasion.	(instructed by
Hunt & Hunt)

HER HONOUR:	That is right.
MR C. JENSEN:	May it please the Court, I continue to appear

for the respondent plaintiff. (instructed by Martin &

Melville, through their city agents Dupree & Associates)

HER HONOUR:  Now, what do the parties propose relating to this

matter?

MR ASHBURNER:  Your Honour, a couple of matters of machinery,

and then we would wish to argue the substance of the

sunnnonses by the first, second and third defendants.

There has been discussed the possibility of my

learned friend seeking that Your Honour state a case

to the Full Court and my learned friend does not seek

that course, so that what is left after my matters of

housekeeping is the substance of the applications

brought by sunnnons by the three defendants.

HER HONOUR:  You do not seek to have the case stated or referred

in any way?

MR ASHBURNER:  No, I do not, Your Honour.

HER HONOUR: Very well, thank you. I, of course, have a power

independently of - - -

MR ASHBURNER: Certainly, Your Honour.

HER HONOUR:  Do you wish to put anything to me as to why I

should not exercise it?

MR ASHBURNER: Yes, Your Honour, because the argument which I

will seek to advance before Your Honour, if that

becomes appropriate, is that the issue posed is one

which is already covered by abundant authority in the

Full Court and covered precisely and it is a line of authority that the Full Court has twice now declined

to review, so that there is simply no prospect, no

realistic prospect, in my respectful submission, the

Full Court would now seek to do so. The very issue

cropped up as long ago as COX V JOURNEAUX where such a procedure was supported by both parties and by

the Cormnonwealth intervening, and since then the

Full Court has repeatedly declined to review the line

of authorities upon which I will seek to rely.

HER HONOUR:	Since then, has there not been some expansion of the concept of "matter", at least in so far as concerns
accrued and pendant jurisdiction?

SlTl/2/RB	25	24/2/89
Rochford
MR ASHBURNER:	In my respectful submission, not.	I will

certainly not pass that possible argument that my

learned friend might seek to rely on in silence, but

I submit not, Your Honour. In substance, what the

authorities show is that the Court has always

distinguished very firmly between section 75(iv) on

the one hand and other heads of jurisdiction- - -

HER HONOUR:  But given that matter applied to all heads under

75, is there not an argument for that distinction no

longer being maintained?

MR ASHBURNER:  No doubt it can be said that there is almost

nothing that is not arguable, but my respectful
submission is that there simply is not a sufficiently
worthwhile prospect that the Full Court would now

review a very well and long settled line of authorities,

particularly since it has on, I think, two occasions -

that is subject to my checking - I am pretty sure it

is at least two, Your Honour - in the Full Court, they

have expressly declined to review that line of authority.

As to the expansion of the concept of "matter",

the modern authorities as to accrued jurisdiction have not ever been applied to section 75(iv), the diversity

jurisdiction.

HER HONOUR:	It has never been argued, has it?
MR ASHBURNER:	No, Your Honour, but the accrued jurisdiction,

for example, under section 75(v) has for a very long

time been held applicable. In section 75(v),

Your Honour, something very like an accrued jurisdiction

has been recognized since at least RV HIBBLE EX PARTE

THE BROKEN HILL PROPRIETRY CO, 28 CLR 456. I had only

proposed to give Your Honour the reference to it and so

I have not brought around the photocopy to hand up.

But it was recognized then, and it was regarded as

well settled in RV DRAKE-BROCKMAN EX PARTE NATIONAL OIL,

68 CLR 51, and the relevant passage is at 59, so that

as to section 75(v) the general concept of an accrued

jurisdiction has been long recognized in the High Court.

Similarly, Your Honour, under section 76(i) it has been very long recognized, at least from the time of

RV BEVAN EX PARTE ELIAS AND GORDON, 66 CLR 452, and

the relevant passages at 462, 465, 480-81 and at 482.

So in both of those areas of original jurisdiction in

the High Court the accrued jurisdiction notion is of

very longstanding. But by starke contrast to it such

notions have never been applied under the diversity

jurisdiction - diversity of residence jurisdiction in

section 75(iv) and any application of them is

completely inconsistent with COX V JOURNEAUX NO	1, with
WATSON & GODFREY V CAMERON, with REG V ANDERSON	EX PARTE
BATEMAN and with UNION STEAMSHIP CO V FERGUSON.	May I

SlTl/3/RB	26	24/2/89
Rochford

shortly take Your Honour to those authorities.

HER HONOUR: Are you confining yourself at this stage as to why

I should not state a question?

MR ASHBURNER:  It is both, Your Honour, but it certainly, in

my submission, is very much relevant to the question of

whether Your Honour should so state that. Frankly I

had prepared it for the other purpose but it is equally

relevant to that precise question because if my

submission be sound, that this is a matter which is

covered by a line of authority in the Full Court and

that that line is completely inconsistent with any

application of the notions of accrued jurisdiction to

the diversity jurisdiction in section 75 (iv), and if

my argument is further correct that although the notion

of accrued jurisdiction has developed somewhat, the

general concept has long been applied to other heads of original jurisdiction in the High Court and long before the Full Court declined to review the line of authorities

starting with COX V JOURNEAUX, then in my respectful

submission - - -

HER HONOUR:  Have they specifically reviewed that aspect of

COX V JOURNEAUX which required the dismissal of a

party from the suit?

MR ASHBURNER:  Your Honour, I think it is correct to say that

there is not to be found in any of those reports any

specific discussion of the accrued jurisdiction

notion, but there is a specific rejection of the notion-

two notions: one, whether a corporation can be a

resident of a State for the purposes of section 75(iv)

and - - -

HER HONOUR: Well, that is not in issue in this case.

MR ASHBURNER: Certainly, Your Honour, and second, which is

in my submission equally relevant to the line of

argument I wish to deliver, is what is necessary is

that all necessary parties upon the record,upon

opposite sides of the record, have a complete

diversity of jurisdiction so that if a necessary party

on one side of the record has the same residence as a

necessary partyon the other side of the record- - -

HER HONOUR: Can I ask you a question?

MR ASHBURNER: Certainly, Your Honour.

HER HONOUR:  If this proceeding had been cormnenced in the

Supreme Court of Queensland, the plaintiff against the

first, second and third defendants, and let us for a

moment assume that the second defendant is resident

in Queensland, would the Supreme Court of Queensland

be exercising federal jurisdiction?

SlTl/4/RB	27	24/2/89
Rochford

MR ASHBURNER: In my submission, not.

HER HONOUR: 

At all; plaintiff resident in New South Wales.

corrrrnenced in the Supreme Court of Queensland the court
would be exercising its ordinary jurisdiction over
persons territorially within the jurisdiction, the

MR ASHBURNER: 

Because if the proceedings were originally

jurisdiction dealt with in LAURIE V CARROLL.

HER HONOUR:  What about section 39(2) of the JUDICIARY ACT,

39(1) and 39(2)? I suppose what you say there is there

is no exclusion of ordinary residential diversity

jurisdiction in 38.

MR ASHBURNER:  Yes, Your Honour, so it is certainly not in the

exclusive - - -

HER HONOUR:  I am sorry, no, that does not help you at all.

MR ASHBURNER:  I could not see how it could. Would Your Honour

give me a few moments to consider this. It comes to

me as a rude surprise. Your Honour, I am not at present

able to see any argument why it would not be federal

jurisdiction and frankly, the thought had never

occurred to me.

HER HONOUR:  If it is federal jurisdiction, would it be

federal jurisdiction for the whole matter or only

part of it?

MR ASHBURNER:  I believe there is authority for the proposition

that if a State court exercises federal jurisdiction

at all, then the matter is entirely federal jurisdiction

and I think, amongst other places, that is to be found

in GOSPER V SAWYER.

HER HONOUR:  FROST V STEVENSON and also one of the import

cases, import licence cases.

MR ASHBURNER:  From recollection, Your Honour, it was the basis

on which the Full Court exercised jurisdiction in

GOSPER V SAWYER as well. Your Honour may recollect it was a section 88F case under the New South Wales INDUSTRIAL ARBITRATION ACT where an attempt was made

to serve the process interstate in exercise of a

purported federal jurisdiction under the SERVICE AND

EXECUTION OF PROCESS ACT and prohibition went upon the

footing that the Industrial Corrrrnission was a court and

was exercising a federal jurisdiction which it did not

have.

HER HONOUR:  See, if your argument is right, would it not follow

that you could never, in a State supreme court, bring

a single proceeding in which the plaintiff is resident

of one State, the first defendant is resident of

another and the second defendant is a company?

SlTl/5/RB	28	24/2/89
Rochford

MR ASHBURNER:	Your Honour, my submission not, and the - - -
HER HONOUR:	Why not?
MR ASHBURNER:	Your Honour, in the circumstances of the present

case I would submit that the reason why the State
court would not be exercising federal jurisdiction

is the very same argument - - -

HER HONOUR:	Would not be exercising?
MR ASHBURNER:	Would not be, is the very same argument that I would seek to advance why the High Court does not have
jurisdiction unless the plaintiff submits to an order
that the third defendant, the corporation, be dismissed
from the suit and then, if the corporation goes, the
High Court would have jurisdiction.
HER HONOUR:	That goes further than COX V JOURNEAUX, does it

not?

MR ASHBURNER:  With respect not, Your Honour. That is the very

sort of order to which - the very sort of election - - -

HER HONOUR:  It dismissed it but it did not say they would not

have jurisdiction against the interstate defendant

unless such dismissal occurred, did they?

MR ASHBURNER:  In my submission not, because there could be no

other basis upon which the plaintiff could have been

put by the Court to that election other than that the

High Court would have no jurisdiction if a corporation

continued to be a party to the suit. Were it
otherwise, there could be no basis for the Court putting

the plaintiff to that election. So, in my respectful

submission, COX V JOURNEAUX and each of the other cases

to which I have referred Your Honour stand as authority
for the proposition that if there is a corporation a

party to the suit, or if there is not a complete

diversity of residence between necessary parties on one

side of the record and necessary parties on the other,

then the High Court lacks jurisdiction completely.

The reason why tb.e election was possible in

COX V JOURNEAUX was that the corporation was not a

necessary party. It was not a case where, without the corporation there could be no cause of action. It was

an optional party and therefore the plaintiff could

be put to an election of either the company

disappearing from the suit or else the entire suit

being dismissed. So that in my submission the result

then is that unless the plaintiff elects to have the

third defendant dismissed from the suit the High Court

would have no original jurisdiction under section 75(iv)

of the CONSTITUTION and it would follow that - - -

SlTl/6/RB	29	24/2/89
Rochford

HER HONOUR:  That could only be because the suit is not one between residents of different States.

MR ASHBURNER: Exactly, Your Honour, and the line of authority

is that the suit is not one between residents of

different States if there is not a complete diversity

of residence and a corporation for that purpose has

no residence in a State. So it would follow that if

the plaintiff were to commence in the Queensland

Supreme Court against the first, second and third

defendants, the State court would be exercising not

federal jurisdiction pursuant to section 39 of the

JUDICIARY ACT but State jurisdiction. And I think

that is an answer to the proposition Your Honour

advanced.

HER HONOUR:  Oh yes, it certainly answers it. It imposes,

though, an interpretation on section	75 (iv) that may
be at odds with traditional approach	to constitutional
interpretation.

MR ASHBURNER: I would respectfully submit not. The traditional

approach is the one taken in the line of authorities

to which I would seek very shortly to take Your Honour.

HER HONOUR:	Yes.
MR ASHBURNER:	Any different approach, in my respectful submission,

would be not traditional but something more akin to a

revolutionary approach, but ..... adopting an approach

which is quite inconsistent with that line of authorities

it would be overruling that line in circumstances where

the Court has repeatedly held it would decline to do so.

HER HONOUR: But only once has the question of the dismissal of

a person from a suit been pronounced upon, is that not

correct?

MR ASHBURNER:  That is to say putting the plaintiff to an

election?

HER HONOUR: Yes.

MR ASHBURNER:  I believe that is correct, Your Honour. It is

certainly in COX V JOURNEAUX. I do not recollectthat
precise point coming up in any of the other cases. I

may be wrong in that but I do not recollect it in any

of the others. And yet, Your Honour, it is notable

that in that case His Honour Mr Justice Dixon declined
to state a case and the Full Court rejected the appeal

in the most peremptory of fashions. It was a one line

judgment.

Your Hbnour, there is a second reason why I would

respectfully urge that it is inappropriate in the

exercise of Your Honour's discretion to state a case and

SlTl/7/RB	30	24/2/89
Rochford

that is that I would submit that this is a
thoroughly inappropriate vehicle for the further

agitation of these potentially important constitutional

questions in the Full Court and that, Your Honour, is

because whatever prospects the plaintiff ultimately

has of succeess against either the first, the second

or the third defendants would not be in the least

Tl affected by the outcome of those questions.

This is a case where if need be I am instructed

to offer an undertaking that the third defendant will

not raise any point of the STATUTE OF LIMITATIONS in

the event that the matter is to be remitted in some

way to the -

HER HONOUR: The third defendant is the corporation. If the

matter is to be remitted and you are successful - - -

MR ASHBURNER:	Then the third defendant will not be a party.
HER HONOUR:	- - -the third defendant will not be a party.
MR ASHBURNER:	May I just check whether I may give the same

undertaking for the two individuals, the first and
second defendants. I am not at present in a position
to give that undertaking, Your Honour, but I think my
learned friend says that that is not a point of concern,

in any event, for the plaintiff's case.

HER HONOUR:  And it would not matter in a remitter case, would it?

MR ASHBURNER:  Your Honour, it may not. There are certainly

very powerful arguments to that effect but there is

scope for argument the other way and the reason that-

HER HONOUR:  It would only matter if the consequence of the

success of your argument was that the plaintiff

discontinued in the High Court and commenced in

another jurisdiction.

MR ASHBURNER:  Yes, and that is not a circumstances in which, as at present at least, I am in a position to give

any undertaking on behalf of the third defendant.	So
I think that point becomes insubstantial.

HER HONOUR:  Or any of them?

MR ASHBURNER: Indeed, Your Honour.

HER HONOUR:  The undertaking does not advance the matter really.

MR ASHBURNER:  I accept that, Your Honour. So the matter then,

in my respectful submission, comes back to the primary

argument I put first. There is perhaps a secondary argument as well, independently of any undertaking,

namely that it is simply not a suitable vehicle.

S1T2/l/RB	31	24/2/89
Rochford

HER HONOUR:	Why?
MR ASHBURNER:	Your Honour, it is litigation primarily betwc

ordinary citizens of a not very dramatic character,
indeed except in one aspect, a notably routine

character. It is a routine claim for damages for

personal injuries. The only matter which makes this

at all exceptional is that, for reasons that do not
presently appear, the plaintiff has chosen to sue not

just the employer but two fellow employees who were in

some kind of supervisory position - at least are

alleged to be so, individuals who are not, of course,

covered by the common law extension to the workers

compensation indemnity scheme in Queensland.

That is the only factor which makes the case at

all exceptional. In my respectful submission, where

the plaintiff does not seek that the matter be the

subject of a case stated to the High Court, given

that with that one exception it is particularly routine

litigation between in the main ordinary citizens, it

would be inappropriate to put those parties to the

possibly considerable cost of litigation on a major

constitutional question before the Full Court. But the

prime argument is the one I have outlined, Your Honour,

that given the sequence of COX V JOURNEAUX and WATSON

AND GODFREY V CAMERON, ANDERSON's case and the UNION

STEAMSHIP case, it is such a very unpromising

territory for the Full Court now to seek to review such

a well settled line of authority which it has

repeatedly declined to review, that in my submission it

would be an inappropriate exercise of Your Honour's

discretion.

HER HONOUR:	Perhaps I should hear Mr Jensen on that matter.
MR JENSEN:	Your Honour, on the question of whether the matter

should be referred to the Full High Court, I think my

learned friend and I were ad idem on that point at one

stage, that the matter should be, but my learned friend,

as Your Honour has heard, now takes the view that the

matter is so - my argument is so in conflict with

existing decisions that it should not be. The

difficulty from my point of view is that my client is

funded by the Legal Aid Office in Queensland which has

very grudgingly pursued the matter this far and I had

some doubts about the attitude of that office if the

matter were to be referred on my application.

Alternatively, if Your Honour did that by the Court's own motion, that would no doubt lend a lot

more weight to that course being followed. But I

took the view that I had to exercise some restraint

when the public purse was involved.

SlT2/2/RB	32	24/2/89
Rochford

To summarize the respondent's opposition to the

summonses, Your Honour correctly predicts - - -

HER HONOUR:  No, no, if you would confine yourself at this stage

to your opposition to the referral of the question.

MR JENSEN:  Yes, I am doing that, Your Honour. I am summarizing

that Your Honour has correctly predicted that the

argument will be that cases such as CROUCH have

outstrode the first instance decision in COX V

JOURNEAUX. As Your Honour correctly points out, the

election procedure adopted by His Honour Mr Justice Dixon

in that case has never been the subject of review by
any appellate court because that case went on appeal

solely on the question of attacking the authority of

HOWE's case, not on the election point. So the point

is not the subject of binding decision and my argument

would be that it is in conflict with the spirit of CROUCH

and certainly in conflict with McCAULEY V HAMILTON

ISLAND and that a number of other cases make it clear

that the concept of matter has certainly been widened

in its understanding.

I would also be relying upon certain rules in

Order 16 of the High Court Rules and section 32 of the

JUDICIARY ACT which, in summary, permit the joinder

and involvement in the action of parties properly

associated with the matter. I would be arguing that

Order 16 and section 32 of the JUDICIARY ACT are

validly made under the CONSTITUTION.

I will be submitting that my argument does not challenge WATSON - - -

HER HONOUR:	What is the rule concerning joinder?
MR JENSEN:	The rule? Rules 4(2)(c), 7 and 10 of Order 16.

HER HONOUR:  Yes, thank you. I suppose Mr Ashburner would wish

to argue that that rule is invalid in so far as it -

or is to be construed otherwise.

MR JENSEN:  Yes. In any rate, that would be the argument, that

those rules are valid and I would be submitting that

my argument does not challenge WATSON AND GODFREY V CAMERON, nor does it challenge RV ANDERSON EX PARTE

BATEMAN.	I have a list for Your Honour rather than
require Your Honour to write down the references.	I
would also be submitting, Your Honour, that my
submissions are not in conflict with first instance
decisions in UNION STEAMSHIP V FERGUSON, they being
decisions of His Honour Mr Justice Windeyer and

His Honour Mr Justice Menzies that is referred to in

Mr Justice Windeyer's decision. I would be

submitting that I do not have to challenge the

correctness of those decisions. That is my position.

SlT2/3/RB	33	24/2/89
Rochford

HER HONOUR: 

Do you accept that COX V JOURNEAUX - this aspect

of COX V JOURNEAUX was not the subject of appeal to
the Full Court?

MR ASHBURNER:  Your Honour, I do not. May I tell Your Honour

what appears from the report?

HER HONOUR:	Yes.
MR ASHBURNER:	It is 52 CLR 282. Mr Justice Dixon's decision

is at 283 and 284 and then at the foot of page 284,

after the order is recorded, there then appears:

On 6th June 1934 the plaintiff gave notice of his intention to appeal from this decision to the Full Court.

On 15th October 1934 the Commonwealth

applied for leave to intervene.

Then there is a short report of the Commonwealth's

application. The ruling was:

We think it unnecessary to consider

your application because the Court as at

present advised does not consider it
advisable to reconsider the case of

AUSTRALASIAN TEMPERANCE AND GENERAL MUTUAL LIFE ASSURANCE SOCIETY LTD V HOWE. If the

Court does propose to consider the matter

you will be notified.

Then the appeal came on for hearing after that.	The
substance of the argument is noted.

This in substance is an appeal to

overrule AUSTRALASIAN TEMPERANCE AND GENERAL

MUTUAL LIFE ASSURANCE SOCIETY LTD V HOWE.

If the Court will not overrule that case

a certificate giving leave to appeal to the

Privy Council should be granted.

The respondents were not called on and the judgment

simply reads:

The appeal will be dismissed with costs.

We will not deal with the application for a

certificate for leave to appeal to the

Privy Council.

My short submission is that there is not enough that

emerges from that report to warrant the conclusion

that my learned friend presses upon Your Honour, that

the appeal was narrowly based. Certainly the substance

of it was to seek to have T & G V HOWE overruled but

I submit it does not appear that the correctness

SlT2/4/RB	34	24/2/89
Rochford

generally of Mr Justice Dixon's judgment was not

canvassed. But secondly, in my respectful

submission, that aspect of His Honour's judgment, the

putting of the plaintiff to an election, is plainly

right if T & G V HOWE be correct because if it be

correct, it follows that while ever there is not a
complete diversity of jurisdiction between necessary

parties on opposite sides of the record, then the

Court has no jurisdiction.

It would further follow that that will always be

the case where one of the necessary parties is a
corporation and in that situation the Court would only
obtain jurisdiction if the corporation, a party to the
suit, is dismissed which of course could only be done

if it was not a necessary party but a possible party.

HER HONOUR:  So right at the moment I am sitting here without

jurisdiction?

MR ASHBURNER:  Indeed, Your Honour. Well, Your Honour, the Court

always has jurisdiction to rule upon whether it does or

does not have jurisdiction.

HER HONOUR:	To rule upon jurisdiction, yes.
MR ASHBURNER:	So to that limited extent, Your Honour plainly

has jurisdiction and in my submission, the correct

ruling to make is that the Court lacks the
jurisdiction unless the plaintiff makes the election

to have the third defendant dismissed from the suit.

Your Honour, I have omitted a matter of

housekeeping which is the proof of the service of the

notices under section 78B of the JUDICIARY ACT.

HER HONOUR:  Yes, thank you.

MR ASHBURNER: If I may come to that at the appropriate time.

Your Honour, that upon Your Honour being satisfied of	Perhaps I should have said in my earlier submissions,	the service of those notices, the very fact that there
is no application by the Commonwealth or any of the
States or the Northern Territory to appear on the question is indicative that it is not regarded by any of those - - -

HER HONOUR:  I think though last time you suggested that they

were reserving their position unless and until the

matter came before a Full Court.

MR ASHBURNER: Certainly, Your Honour. If the matter were to

go before a Full Court, then none of them would be

precluded and each of them would no doubt consider

the matter afresh. But if it were, for any of them,

a live or important question, in my respectful

submission it is reasonable to infer that they would

SlT2/5/RB	35	24/2/89
Rochford

have been here today to urge Your Honour to state a

case. The fact, therefore, that it is something

which not the plaintiff or any of the three defendants
or the Commonwealth or any of the States or the

Northern Territory wish to argue is perhaps a further discretionary circumstance why it is inappropriate to

refer the matter.

That is something that my learned friend may wish

to be heard upon.	I should have put it earlier, of
course.

HER HONOUR:  Yes. The question that you say arises is this:

the Court lacks jurisdiction to entertain the

proceedings unless the plaintiff elects to have the

proceedings as against the third defendant dismissed

or elects to discontinue.

MR ASHBURNER:  Yes, unless by one means or another the third

defendant ceases to be a party to the suit.

HER HONOUR:  And you say that follows from the Full Court

decision in T & G?

MR ASHBURNER:  Indeed, Your Honour, and the Full Court decision

in COX V JOURNEAUX and each of the other authorities.

HER HONOUR:	Yes.
MR ASHBURNER:	It does not depend solely upon the proposition

that a corporation has no residence.

HER HONOUR:	No, I understand that.
MR ASHBURNER:	It also depends upon the other proposition that

there has to be a complete diversity of residence

between the parties on opposite sides of the record.

HER HONOUR:	And you say T & G is authority for that.
MR ASHBURNER: Indeed, Your Honour, the whole line of authorities

to which I have referred.

HER HONOUR:	Could I ask Mr Jensen, still confining myself to the question whether or not it should be referred,
what he says about T & G V HOWE being authority for
that.

MR JENSEN: With respect, Your Honour, that case is simply

authority for the proposition that a corporation is

not a resident. What my learned friend refers to

about diversity of residence on both sides of the record

sterns from WATSON &~D GODFREY V CAMERON. That case, as

I understand it, held that interstateness, if I can

use that term, is lost when one State of residence is

repeated on the opposite side of the record.

SlT2/6/RB	36	24/2/89
Rochford

Now, I will be seeking to distinguish that case

for the simple reason that a corporation is not a
resident ex hypothesi under my learned friend's

argument, so my contention is not in conflict with

WATSON AND GODFREY V CAMERON. No State is repeated

on both sides of the record and it is apparent from

CROUCH and McCAULEY "matter" is sufficiently wide so

that the Court need not have had jurisdiction vis-a-vis

a particular defendant if it stood alone.

I do not think I can take that further.

HER HONOUR:  Yes. Very well, I shall hear the matter.

MR ASHBURNER:  Your Honour, may I have leave to file in Court

an affidavit of Suzanne Garben, sworn 23 February.

(Continued on page 38)

SlT2/7/RB	37	24/2/89
Rochford

HER HONOUR: Has Mr Jensen seen that?

MR ASHBURNER:  Yes, Your Honour.

HER HONOUR:  Yes. Any objection?

MR JENSEN:	No, Your Honour.
HER HONOUR:	Leave is granted. This is the 78B notice.
MR ASHBURNER:	It discloses service on each of the States

and the Northern Territory and such replies as

have been received.

HER HONOUR:	Thank you.
MR JENSEN:	I seek Your Honour's leave to file the statement

of claim which has been delivered today.

HER HONOUR:  Yes. Is there any objection to that, Mr Ashburner?

MR ASHBURNER:	No, Your Honour.
HER HONOUR:	Was there some difficulty about appearances?

MR ASHBURNER:  Your Honour, yes. I should also seek leave to

file in Court an appearance for the third defendant

to which my learned friend consents.

HER HONOUR: That is not a submitting appearance, I assume?

MR ASHBURNER:  Your Honour, it is not expressed to be a

conditional appearance, for this reason - - -

HER HONOUR:  Do you not have to do that?

MR ASHBURNER:  I submit not, Your Honour. The purpose of

filing a conditional appearance is if there is no

territorial jurisdiction within the principles of

LAURIE V CARROLL and where - therefore an

unconditional appearance amounts to a submission

to the jurisdiction in the difference jurisdictional

argument which is sought to be put before Your Honour,

even if we were consenting, that would notgive the

Court jurisdiction unless it has it under statute

and so I respectfully submit that there is simply no

occasion for the filing of a conditional appearance

and for that reason, upon my advice which I hope is

correct, the appearance is not expressed to be a

conditional one.

HER HONOUR:  Yes. Well, I presume no point will be taken

about that.

MR JENSEN:  No, I am not taking that point.

HER HONOUR:  Thank you. Leave is granted to file both documents

in Court.

SlT3/l/PLC	38	24/2/89
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MR ASHBURNER:	May it please Your Honour.
MR ASHBURNER:	Your Honour, may I handup COX V JOURNEAUX,

WATSON AND GODFREY V CAMERON, l{E ANDERSON and

UNION STEAMSHIP COMPANY V FERGUSON.

HER HONOUR:	Thank you.
MR ASHBURNER:	I regret, Your Honour, pressing time

did not leave me enough time to photocopy that.

HER HONOUR:  We did not have your list of references but we

have some of them, but the Registrar will get another

copy of this so it can be returned to you.

MR ASHBURNER:  I am grateful. Your Honour, in my respectful

submission, COX V JOURNEAUX (No 1) was rightly

decided by His Honour Mr Justice Dixon and was,

for all purposes relevant to the present proceedings,

affirmed in the Full Court and therefore
relevantly binds Your Honour. Similarly, I

respectful submit that the decision of the Full Court

in WATSON AND GODFREY V CAMERON also is binding upon

Your Honour.

So far as COX V JOURNEAUX is concerned, in

my respectful submission, it rightly decides that
where a corporation is a party to the proceedings

then pursuant to the decision of the Full Court in

TEMPERANCE AND GENERAL V HOWE there is not

relevantly a complete diversity of jurisdiction and

the High Court therefore lacks jurisdiction while

ever the corporation remains a party.

In WATSON AND GODFREY V CAMERON, in my

respectful submission, what the Full Court has,

again, determined is that a complete diversity

of jurisdiction between parties on opposite sides

of the record is necessary. Then, Your Honour,

in REG V ANDERSON EX P ARTE BATEMAN , 53 AL.J 165,

again, the Full Court has held that what is necessary is

a complete diversity of residence between parties

on opposite sides of the record. The passage,

Your Honour, is at the foot of page 165:

Finally, although with less confidence,

Mr Ormiston submitted that the present
is a case which falls within s.75(iv) of

the CONSTITUTION, being a matter between

residents of different States. Although

the evidence does not establish the facts,

he informed us - and I accept for the

purpose of the argument - that the wife is

resident in Tasmania and that both the

husband and the judge are resident in

Western Australia. There are a number of

possible reasons for rejecting Mr Ormiston's

SlT3/2/PLC	39	24/2/89
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contention but it is enough to say that

his submission cannot succeed in the

light of such authorities as RV MURRAY

AND CORMIE: EX PARTE THE COMMONWEALTH,

and WATSON AND GODFREY V CAMERON.

For these reasons I have reached the

conclusion that the Court lacks original

jurisdiction in the present case. It is

unnecessary to say that in those circumstances

we have not proceeded to a consideration of

the merits of the dispute.

So, again, Your Honour, there is necessary a complete

diversity of residence.

It follows from those authorities too that it

is not sufficient that there be partial diversity,

that is to say, the plaintiff have a different

State residence from one or more of the defendants. residence.

HER HONOUR:	From the plaintiff?
MR ASHBURNER:	From the plaintiff, yes. And, in my respectful

submission, it also follows, from that line of

authority, that while ever therefore there is a

corporation party to the proceedings there simply

is no jurisdiction under section 75(iv).

Your Honour, each of those authorities, in my

respectful submission is inconsistent with any

contention that the Court has jurisdiction over

the complete matter if it has jurisdiction over

part of it or over some of the defendants. In

other words, I respectfully submit that the

reasoning of Mr Justice Mason in McCAULEY V

HAMILTON ISLAND ENTERPRISE~ to which my learned

friend has adverted previously and I understand

will be relying today, that line of reasoning

simply has no application, in my submission, to

section 75(iv) of the CONSTITUTION.

HER HONOUR:  And that is because there is never jurisdiction

to which pendant jurisdiction can be attracted.

MR ASHBURNER:  Indeed, Your Honour, because the pendant or

accrued jurisdiction is applicable to other sources

of original jurisdiction in this Court such as

section 75(v) or section 76(i) but it must follow,

I submit, from that line of authority, that the argument simply has no application whatever to

section 75(iv). It is not as though notions of

accrued jurisdiction sprung entirely unheralded

to light in recent years because, as I submitted

earlier to Your Honour, those very notions have

long, long been applied to section 75(v) which was

the area Mr Justice Mason was concerned with in

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McCAULEY's case, and I gave Your Honour the references to HIBBLE's case and DRAKE-BROCKMAN's case.

Similarly, Your Honour, such notions have

long been applied to section 76(i), and I gave

Your Honour the reference to RV BEVAN, EX PARTE ELIAS AND GORDON. If that line of argument were

applicable to section 75(iv) then it must follow

that the line of authorities upon which I rely would

have been decided in the opposite sense. And so

I respectfully submit that the existence of that

line of authorities presents an insuperable barrier

to success by the plaintiff, the respondent to the

smmnonses before Your Honour. And, further, of

course, if need be, I would submit that there

would simply be no occasion for those

authorities to be distinguished by Your Honour

or to be overruled by a Full Court.

For the reasons that have been put by

the Full Court in COX V JOURNEAUX and by the Full Court in ANDERSON's case, it is, in my respectful

submission, simply inappropriate for there to be

any attempt to distinguish, artificially, I would

submit, the plain effect of that line of authorities

and the argument is exactly the same argument as

that which caused the Court to decline to overrule

or reconsider that long line of authority.

Similarly, Your Honour, I submit, for the same

reasons, the provisions of section 32 of the JUDICIARY

ACT and the several rules in Order 16 to which my

learned friend referred earlier, simply have to be

read down - - -

HER HONOUR:	They would have no application.
MR ASHBURNER:	Yes.

HER HONOUR:  Because you would never get - on your argument,

there would never be jurisdiction if that was the

situation.

MR ASHBURNER: Indeed, Your Honour. Your Honour, I should

most recent occasion when these matters came before a Full. Court and as Your Honour will recollect

have added a reference to CRAFTER V THE COMMISSIONER

the Court took jurisdiction upon the basis of the

other limb of section 75(iv) but so far as is

relevant to the present proceedings, it rejected

jurisdiction under section 75(iv) upon the claim

that there was a diversity of residence and

declined to review the long line of authorities.

So that, again, Your Honour, that is a further

authority which I respectfully submit binds

Your Honour and is further reason why not only is

SlT3/4/PLC	41	24/2/89
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it inappropriate in a Full Court for that line to

be overruled but it is thoroughly inappropriate

for Your Honour to seek to find points of arguable

distinction between the plain effect of that line

of authority and the circumstances of the

present case. That, Your Honour, is the short

argument I would seek to put.

HER HONOUR:	Thank you, Mr Ashburner. Yes, Mr Jensen?
MR JENSEN:	Your Honour, I hand up a sunnnary of my argument.
HER HONOUR:	Yes, thank you.
MR JENSEN:	Perhaps I can hand to Your Honour McCAULEY's

case. Your Honour, the position there was really

very similar to that here in that the action had

been brought against companies and a Commonwealth

authority and the relief sought was the same in that

the application by the first and second defendants
was for the writ of summons to be set aside as

against them on the ground that the Court had no

jurisdiction. That is effectively what we have

here.

Your Honour, at page 236 of the report,

there is a concession referred to, two-thirds of

the way down in the first column:

counsel conceded that the case fell

withins. 75(iii). The effect of the

concession is to remove from the area
of dispute between the parties the
question whether this Court lacks
jurisdiction to entertain the plaintiff's

action in relation to the Authority.

Now, in my submission, that simply met no more

than it suggests, that there was a concession
that the Court had jurisdiction in relation to the

authority as being an arm of the Commonwealth

so therefore I submit that the following

paragraph is, in fact, decision rather than obiter

where His Honour says:

I would only add that if this Court

has jurisdiction in the plaintiff's

claim against the Authority, it also

has jurisdiction in relation to the claim

against the first and second defendants.

They are the companies.

This is so because s. 75(iii) ..... confers

on this Court original jurisdiction in the

whole matter in which a person being sued

on behalf of the Commonwealth is a party,

not merely jurisdiction vis-a-vis that

person -

and His Honour refers to those cases.

SlT3/5/PLC	42	24/2/89
Rochford

HER HONOUR:  Yes, but the concession had the effect of

relieving His Honour the Chief Justice from deciding

the issue that is now posed.

MR JENSEN:  I concede, Your Honour, the passages could be

taken that way; I submit that is not so.

The concession was simply that the Court had

jurisdiction to entertain the plaintiff's action

in relation to the authority because the authority

represented the Commonwealth. The whole point of

the application was very similar to this.

HER HONOUR:  Except that, you see, it was originally claimed

to be a matter of diversity jurisdiction, it

would seem.

MR JENSEN:  Yes. And then the case was put on the basis

then that the matter was one in which the

Commonwealth was being sued.

HER HONOUR:  It looks as though what was first in issue

was whether the authority could be made a party

to the proceedings.

MR JENSEN:  As I say, the judgment is subject to interpretation

on that point. I submit, in the alternative,

that at the least the passage is a valuable statement,

a valuable obiter dictum.

Your Honour, the important passages in

CROUCH's case appear at page 37 where it was said that a matter is more than a legal proceeding

but, rather,"the subject-matter for determination

in a legal proceeding." It was said that the word

"matter", as so used:

is a word of wide connotion: it is,

and was in 1900, "the widest term to

denote controversies which might come

before a Court of Justice''.

And, in my submission, here the matter is not

the form of the legal proceedings but the matter

is the substantive issue or controversy related

to a claim for damages, and the breadth of the

term "matter" is sufficient to encompass a

defendant who, on its own, would not be subject

to the jurisdiction of the Court, and I have

conceded that. HOWE's case, of course, was

solely that, an action between company and

natural person. The only authority that could, at

all, conflict with myrubmissions is the first instance

decision in COX V JOURNEAUX.

As I say, Your Honour, in addition, the

Rules and section 32 of the JUDICIARY ACT effectively

say that the parties properly associated with the

matter are subject to the jurisdiction of the Court

and this, in particular, is a case where the plaintiff

SlT3/6/PLC	43	24/2/89
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was in doubt as to who the correct defendants

were, and Mr Rochford has stated that in his

affidavit: he did not know the correct description

of the company by whom he was employed. As I

say, further, it is appropriate that the third defendant
corporation be before the Court in any event because

of other issues which may arise. For example, the

first and second defendants may seek contribution

or indemnity from the employer. That may be on the

basis of some contractual relationships in the

employer. Or, there may be some factual basis for

a contribution, for example, if it be proven that

they, the foremen, had been refused cleaners and

cleaning agents from the corporate employer, that

would give a factual basis for an indemnity or

contribution from the third defendant. Hence,

the third defendant is properly and necessarily

before the Court so that complete relief -
complete adjudication of the controversy can be

given as section 32 of the JUDICIARY ACT contemplates

and as the Rules permit.

In my submission, COX V JOURNEAUX, on the

election point, went no further than first instance

level. It is quite clear from page 285 of the

report that the appeal was purely yet again an

attempt to overturn HOWE's case. As I say,

HOWE was simply a simple action between a natural

person and a company.

T] My submissions do not entail challenges to

WATSON AND GODFREY V CAMERON. Those cases simply

decide that interstateness is lost when one State

of residence is repeated on the opposite side of the record. This is perfectly reasonable, in my submission, when the rationale for the diversity

jurisdiction apprehended parochial bias in a supreme

court of a State is appreciated. I think that has

been recognized in cases such as POZNIAK V SMITH,

that although that might be a fairly academic

basis in a country such as Australia where the

supreme courts are of standing and respected,

that is none the less the theoretieal basis for

the diversity jurisdiction of this Court.

Now, that means that no such basis for

suspecting bias can exist when no State is represented

on both sides of the record. This is such a case:
no State is represented on both sides of the record.

The third defendant is not a resident, ex hypothesi,

as I say, under my learned friend's argument, the

third defendant is not a resident of any State; so
there is simply no conflict at all with WATSON AND

GODFREY or REG V ANDERSON.

HER HONOUR: There is no conflict in factual terms, as it

were, but what is the explanation for the lack of

jurisdiction found in WATSON AND GODFREY?

SlT4/l/PLC	44	24/2/89
Rochford

MR JENSEN:  As I say, Your Honour, the theoretical apprehension

that - - -

HER HONOUR:  That is, perhaps, the policy which invested the

actual terms of section 75(iv) but what is the construction of section 75(iv) that brings the

result in WATSON AND GODFREY V CAMERON

if it not be the construction advanced by

Mr Ashburner?

MR JENSEN:  I can only say, Your Honour, that diversity of

jurisdiction as so interpreted by the Court,

that one had diversity, if there were residents

of differing States, but once a State of residence
turned up on the opposite side of the record

there was no such disparity.

HER HONOUR:	Even though they were of different States?
MR JENSEN:	Yes, because in that case the - - -
HER HONOUR:	I think we must assume that that was not

an arbitrary decision. We must assume it is one

based on the words of section 75(iv).

MR JENSEN:  Yes, Your Honour, but the rationale must be

that the plaintiff or plaintiffs select the supreme

court which will try the action so that if the

defendant is a resident of a different State, the
defendant is forced into an action to be tried in
a foreign State and that cannot apply if one of

the plaintiffs is also from that foreign State

because any suspicion of bias evaporates. That

does not apply here because the third defendant is

not a resident of any State.

Your Honour, as I say, my submissions do not

attack UNION STEAMSHIP V FERGUSON either in

relation to the first instance decisions.

At page 196 of the report it appears that the

plaintiff was a South Australian who sued a

corporation and he sought to add Mr Bellgoerdt,

as resident of the State of New South Wales, as

a defendant. His Honour Mr Justice Windeyer

said:

it was apparently thought that by
making him an additional defendant

the action would be saved and could

proceed, with the defendant company

still a party although not a "resident".

This was a mistaken view:	WATSON AND
GODFREY V CAMERON.	My brother Menzies

who heard the application dismissed it.

In my submission, that application was

misconceived because the action was a nullity

ab initio, was simply a repetition of HOWE's case,

a natural person suing a company. The Court had

SlT4/2/PLC	45	24/2/89
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no jurisdiction from the outset and, with respect,

those decisions referred to at page 196 were

correct and certainly not in conflict with what

I am submitting today.

In my submission, Your Honour, all defendants

here are properly and bona fide joined in the

action. In my submission, the test of whether

they are so properly and bona fide joined must

refer to the time of commencement of the action.

There is authority for that.

HER HONOUR:	I do not think that is in issue, Mr Jensen, is it? That is not in issue?
MR ASHBURNER:	No.
MR JENSEN:	Very well, Your Honour. And I would simply

refer to the plaintiff's affidavit on that point.

Your Honour, on section 39(2) of the JUDICIARY ACT,

that section would appear to have the effect that

a diversity case is a case in which the State supreme

courts have jurisdiction but that it is federal

jurisdiction and that would appear to mean, on my

learned friend's submissions, that a diversity

action could be prosecuted in a State supreme court

but without the joinder of the third defendant

which would be highly inconvenient, in my submission.

In my submission, it would mean that there would

have to be two actions, one against the corporate

entity and one against the natural persons resident
in different States, on a literal reading of

section 39(2) of the JUDICIARY ACT and, in my

submission, that highly inconvenient result ought

to be avoided if possible. They are my submissions.

HER HONOUR: Yes, thank you. Anything in reply?

MR ASHBURNER:  No, Your Honour.

HER HONOUR:  I will reserve on this and give a written

decision, hopefully, within 10 days or so.	Do I
have to certify for costs again?	Do I have to make
any particular orders?

MR JENSEN: Perhaps if Your Honour might just reserve.

MR ASHBURNER:  Your Honour, I have omitted to look,for which

I apologize. The point simply did not occur to me.

HER HONOUR:	I will just bear it in mind.
MR ASHBURNER:	My recollection, Your Honour, is that it is

necessary to certify for the attendance of counsel

on a chamber matter and if that be correct then, I

would submit, it be an appropriate case so to certify.

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Rochford

HER HONOUR: This issue being disposed of, the

remitter question arises so it would be necessary

to list it again - that is by consent, is it?

MR JENSEN:	Yes.
HER HONOUR:	Is it by consent regardless of outcome, should

I ask that?

MR JENSEN:  Yes.

MR ASHBURNER: I think perhaps not, Your Honour, because

depending on which way Your Honour's decision

goes there may be the necessity of one party or

the other appealing. I think it would be more

convenient to list the matter.

HER HONOUR:  To relist it, yes.

MR ASHBURNER: If Your Honour would do that.

HER HONOUR: Well, let me just indicate, at this stage,

that if it should transpire that it is by consent
the matter can be dealt with by signatures in the

Registry which will save some expense but if it

transpires that it is not by consent I will leave

it to one or other of you to ask the Registrar to

list the matter again, reserving your option to

save that expense.

MR ASHBURNER:	So, it will be unnecessary for the attendance of counsel when Your Honour delivers judgment?
HER HONOUR:	That is correct.

MR ASHBURNER: If a solicitor is here to simply receive the

judgment?

HER HONOUR: Yes, that will be more than sufficient,

thank you. We will adjourn now.

AT 11.10 AM THE MATTER WAS ADJOURNED SINE DIE

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