Visnic v Australian Securities and Investments Commission

[2006] HCATrans 158

[2006] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S49 of 2006

B e t w e e n -

MILAN VISNIC

Plaintiff

and

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

Defendant

Summons for directions

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 27 MARCH 2006, AT 11.00 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear on behalf of the plaintiff on the summons for directions.  (instructed by Van Houten)

MR S.J. GAGELER, SC:   If the Court pleases, I appear for the defendant.  (instructed by Australian Securities and Investments Commission)

HIS HONOUR:   Yes, Mr Wendler.

MR WENDLER:   Before I open the procedural issues that are raised on the summons for directions can I report to your Honour that my instructing solicitor raised notices pursuant to section 78B on, I think, Tuesday of last week.

HIS HONOUR:   Yes.  I saw a note in the file to that effect.  There was a note.

MR WENDLER:   To date the only responses have been from the Commonwealth and the response, I am instructed, was that they would consider their position in due course and had made no decision about intervention at this stage and the Victorian Attorney responded to indicate that they would seek or like further instruction should the matter be referred to a Full Court.  That is as far as I can go on the 78B issue.  There have been no other responses to the notice.

Your Honour, can I move now to the matters, the consideration on the summons for direction.  Does your Honour have the document, the outline of submissions on summons for direction?  Does your Honour have that document?

HIS HONOUR:   Yes.

MR WENDLER:   As your Honour knows from the papers that have been filed, this is a constitutional challenge in the original jurisdiction of the Court to section 206F of the Corporations Act and in broad terms the allegation is that the power given to, obviously, an administrative body such as ASIC is Commonwealth judicial power and, of course, contrary to Chapter III of the Constitution. No part of the judicial power of the Commonwealth can be of course exercised by a functionary such as ASIC. The matters on the plaintiff’s outline of submissions on the ‑ ‑ ‑

HIS HONOUR:   Can I just ask is there any specific provision in the Corporations Act which permits a so-called appeal from the decision disqualifying the person from managing a corporation?

MR WENDLER:   A person can, under 206F, in particular, 206F(5) ASIC can in effect given written permission to manage a particular ‑ ‑ ‑

HIS HONOUR:   No, but I am asking is there a provision for access to an undoubted court for the purpose of reviewing the matter?

MR WENDLER:   There is provision to challenge of the legality of the decision under the Administrative Decisions (Judicial Review) Act but beyond that there is no power to ‑ ‑ ‑

HIS HONOUR:   So there is nothing express in the Corporations Act providing for access to a court but there is access to a court under the Administrative Decisions (Judicial Review) Act?

MR WENDLER:   Yes.  There are a number of issues for consideration concerning whether this matter should remain in the original constitutional jurisdiction of this Court rather than be remitted, for instance, to the Federal Court, or indeed any other court.  The matters for consideration are set out in the plaintiff’s outline of submissions.  Does your Honour have a copy of that document?

HIS HONOUR:   I have the plaintiff’s outline of submissions, yes.  Which paragraph are you referring to?

MR WENDLER:   At 1.1.  It is my respectful submission that this constitutional challenge remain in this Court to be resolved and that can be resolved by the formulation of a question and the parties agreeing a statement of facts.  The facts are not contentious.  It is a matter that could be resolved in a one-day hearing, with written submissions, obviously.  It is also a matter of significant importance to the law of corporate governments generally and the power of a statutory functionary such as ASIC to impose a civil penalty of significant consequences of up to five years, which is what it did in this particular case concerning the plaintiff.

Section 30(a) of the Judiciary Act, which of course is a section 76(i) law – and section 30(a) has been in the Judiciary Act pretty well, I think, from its inception - of course mandates the original jurisdiction in this Court in matters involving the Constitution or its interpretation. I have always for some reason seen a tension between section 30(a) and the remitter section in section 44 in matters where there is significant constitutional importance.

HIS HONOUR:   They are both in the same Act so they simply have to be given their separate effect.

MR WENDLER:   I agree with that but section 76(i) of the Constitution specifically empowers the Parliament of the Commonwealth to pass laws with respect to matters concerning issues involving the Constitution or its interpretation. It is my respectful submission that, prima facie, when the citizen challenges the constitutionality of a particular federal law he should be permitted to seek the protection of this Court and remain in this Court until it is resolved, unless there is some practical consideration as to why the matter should be remitted to another Court. There are no practical considerations, in short, in respect of this matter. There are no disputed facts. It is a short hearing.

HIS HONOUR:   Is it your understanding that the defendant asks for remitter to another court?

MR WENDLER:   My understanding is that the defendant is neutral on this issue.  I hope I have not verballed my friend but I did speak to him this morning and I think he indicated that essentially he was neutral, so far as his instructions were concerned, although he wishes, as I understand, to put submissions in relation to the utility, if you like, of remitting it to the Federal Court, by example, with other matters, but it is my respectful submission, understanding that his position generally is neutral on the topic of an order.

HIS HONOUR:   What is the case closest to this case?

MR WENDLER:   The case closest to this case, on my researches, is Precision Data.

HIS HONOUR:   This is a bit of a trap question to you, Mr Wendler, because if there is a case very close to the case then that is a reason why we should simply remit it and get the Federal Court to apply the Court’s reasons and then perhaps you will be content and the case goes away, as far as we are concerned.

MR WENDLER:   When I agreed, as it were, that it was close I meant close in terms of its capacity to be distinguished from the circumstances here because in Precision Data, although there was further refinement of the definition of “judicial power” and the application of that definition to the power given to a panel in that case, the big difference is the panel had no power, no punitive power.  It only had power to recommend or to reverse a particular commercial arrangement.  This is quite different.  There is in fact in section 206F punitive power, the power of disqualification but more to the point, if I can just invite your Honour to 206F(2).  At 206F(2)(iii) your Honour will see that the grounds for disqualification and in determining that question:

any other matters that ASIC considers appropriate.

That invites an exercise of jurisdiction wholly on punitive – or it is capable of an exercise of jurisdiction wholly on a punitive basis.  That is an extremely important consideration on one ‑ ‑ ‑

HIS HONOUR:   Is there a power given elsewhere in the Act to courts to disqualify a person from managing?

MR WENDLER:   Yes, there is.  In 206E, I think, or it might be the other way around.

HIS HONOUR:   I see, 206E.  Yes, I see that.

MR WENDLER:   Your Honour will note that when one compares the two powers there is really not a lot of difference other than a court can disqualify for a much longer term, I think up to 20 years.  For instance, one way of testing or considering the constitutionality of this piece of legislation from the viewpoint of whether there is an exercise of judicial power is to ask the question, if ASIC had the power not to disqualify for five years but to imprison for five years obviously the focus would be sharper in terms of the question of whether there is an exercise of judicial power.

HIS HONOUR:   It certainly would.

MR WENDLER:   My point is that the way it is structured in 206F, especially (2)(iii), there is capacity to exercise the power purely on a punitive basis, in other words, punishment for past corporate delinquent behaviour, if you like, as being the sole determinant for disqualification of a person managing a corporation.

HIS HONOUR:   You have a constitutional point you want to argue.

MR WENDLER:   Yes.

HIS HONOUR:   There is no summons before me to strike the matter out on the basis that the issue is not arguable.  Therefore, you must have your day in court.  The question is where you have your day in court?

MR WENDLER:   Yes.

HIS HONOUR:   If there are no factual matters in contention and if there is an issue for resolution and if it is a constitutional issue and if it is desirable in the public interest that the issue be resolved for you and for other persons quickly, as seems arguable, and if the matter can be disposed of in one hearing day then there appear to be reasonable grounds for keeping it in this Court.  At least, that is my view.  So I think I might just hear Mr Gageler

first and then you can come back if I am persuaded that the matter should be remitted.

MR WENDLER:   Yes.  Thank you, your Honour.

HIS HONOUR:   What is your submission, Mr Gageler?

MR GAGELER:   Your Honour, we are not in any way opposed to keeping the matter in the Court.  We, too, think that it can be disposed of in a day and we, too, think that there are no factual issues in dispute.  Indeed, the case is really quite a clean vehicle to ventilate the issue of principle.  That said we feel bound to draw to your Honour’s attention a couple of cases that are in the pipeline.  The present case is one of a number in which interest has been excited within parts of the legal profession by some statements made by this Court or the joint judgment of this Court in Rich, which of course was not a constitutional case but then said in that case of raised – it has been seen to raise issues about judicial power.

There were two cases commenced in the original jurisdiction of this Court, both of them challenging section 1292 of the Act.  Section 1292 allows for the administrative cancellation of registration as an auditor, or as a liquidator.  Both of those cases resulted in the matter being remitted to the Federal Court and the orders were made by Justice Heydon.  I can provide your Honour with a copy of those.  The issues are very, very similar.  Reliance on Rich was very similar.  Those cases were heard by a Full Court of the Federal Court last week.

There was another case that has already been determined by the Full Court of the Federal Court.  I should provide your Honour with a copy of this.  It is a matter of Kamha and special leave to appeal from this decision has been sought and the special leave application is very much in the pipeline.  The submissions are closed and it is simply awaiting a hearing date, but, your Honour, this case determined the validity of section 25A of the Insurance Act, which, if your Honour turns to page 3 of the judgment, is materially very similar to the particular provisions sought to be challenged in the present case.  Your Honour will see that section 25A(1) allowed APRA to:

disqualify a person if it is satisfied that the person is not a fit and proper person to be or to act as someone referred to in paragraph 24 –

relevantly, section 24(1)(a).  Section 24(1)(a) is right at the top of the page and that is to act as:

a director or senior manager of a general insurer -

So it is a very similar provision, a general disqualification provision upon satisfaction by an administrator that the person is not fit and proper.  That was upheld in the Full Court of the Federal Court post Rich, paragraph 66 and following, although your Honour need not be concerned with the detail of the reasoning.

HIS HONOUR:   Could I just ask is there a reference in here to what was said in the joint reasons in Rich?

MR GAGELER:   No.  I was in this case.  Rich was ‑ ‑ ‑

HIS HONOUR:   Was cited but not referred to.

MR GAGELER:    Cited but not referred to in the judgment.

HIS HONOUR:   Rich was not a case on constitutionality.

MR GAGELER:   No, and indeed ‑ ‑ ‑

HIS HONOUR:   But there must have been lurking there some dark hints of the constitutional problem.

MR GAGELER:   There have been some academic writings, your Honour, that have relied upon Rich to some extent but I am afraid once counsel have got to the Bar table Rich seems to recede into the background.  The same thing happened last week in the hearing of the other two matters before the Full Court of the Federal Court.

HIS HONOUR:   I have not read this decision or the arguments of the parties in the other case but, just speaking for myself, it does seem to raise an issue that might at some stage have to be considered by the High Court and on one view, sooner rather than later, especially in the circumstances of this case, because as I understand it, the plaintiff has not turned up at proceedings and has simply relied on his submission that the section is constitutionally invalid and therefore does not bind him.

If that is going to be happening it would seem desirable that the matter should be settled and if there is an issue of general principle as to whether administrators can make disqualifying orders which, though not punitive, in one sense do fall very heavily upon an individual, on their reputation, on their capacity to earn money and on their families and so on.  It would seem to be something that is heading our way.  The problem now is how to deal with this application in the light of what you have told me.

MR GAGELER:   Yes.  I should say, your Honour, in the other two matters – I really should provide your Honour with a copy of the orders made by Justice Heydon in those two matters.  The first of them – the only one of them to be tested was the Albarran matter and there I appeared for the same client and really put to Justice Heydon that there was some utility, perhaps, in the matter staying in this Court, basically for the reasons your Honour has given.

HIS HONOUR:   Yes.

MR GAGELER:   Notwithstanding that, his Honour thought it appropriate to remit that matter to a Full Court of the Federal Court.

HIS HONOUR:   Did you in that matter ask that the matter stay in this Court and be determined?

MR GAGELER:   I took very much the same sort of position as I am taking before your Honour, that is, that we could see arguments both ways and we were quite relaxed about the matter staying in this Court because it would bring finality.

HIS HONOUR:   If you start from the premise that – certainly as a premise I start from, that ultimately on whatever vehicle or vehicles the issue is a significant and arguable constitutional question and should therefore be considered by the Court, what is your submission in the light of what has happened in Kamha and the state that has been reached in Albarran and the summons that is now before this Court in Visnic as to what I should now do?

The possibilities are that I stand this summons over to see the result in Albarran and then somehow seek to consolidate the three matters to be heard together where the common issue could be isolated and dealt with or that I simply in a more leisurely manner, as befits the highest Court, send this case back to the Federal Court so that it can take its course with Albarran and be heard and determined and then at the special leave stage have the three cases consolidated and dealt with at that stage by a Full Court to determine whether it should come into the entire Court.  They are the two courses that are open.

MR GAGELER:   Yes.  We think for the sake of consistency probably the second course would be the most appropriate, that is the other cases are making their way up through the special leave process.  It may well be that the resolution of those cases, for example by the refusal of special leave, will put an end to the matter.

HIS HONOUR:   Yes.  That effectively means that the issue is decided on a much more peremptory and limited consideration and it would be decided if the entire matter stays in this Court in this case.

MR GAGELER:   Yes and no.

HIS HONOUR:   Effectively decided by two or three Justices instead of by the entire Court.  They stand at the gateway to having the point determined.

MR GAGELER:   Of course, but, your Honour, the question is, is the point worthy of special – the point that two or three Justices ask is is the point worthy of special leave to appeal given that it has been considered by three judges of the Federal Court and it may well be six judges of the Federal Court if – I withdraw that.  It was the same Bench that decided Kamha that heard the other two matters last week.

HIS HONOUR:   Yes.

MR GAGELER:   Your Honour, as I said, we are relaxed and we do, frankly, see some merit in having ‑ ‑ ‑

HIS HONOUR:   I know you are very relaxed and comfortable and had you got me instead of Justice Heydon you might well have been very relaxed and on your way to a Full Bench, but we now have a different factual situation that has arisen and that has to be taken into account in deciding what should be done in this case.

MR GAGELER:   Yes.

HIS HONOUR:   Yes, thank you.  Yes, Mr Wendler.

MR WENDLER:   Your Honour, I maintain that this matter should remain in this Court.

HIS HONOUR:   Have you read the decision of the Full Court of the Federal Court in Kamha?

MR WENDLER:   I have not read them closely. I have scrutinised them. The statutory scheme, I think, is different. In that matter, in particular, 206F – I do not think that is an equivalent to 206F(2)(iii), that portion of 206F which permits the authority – that is the defendant – to exercise its jurisdiction in a purely punitive matter, but more of a practical note and your Honour identified it a moment ago – he declined to attend any meeting or interrogation or interview with the defendant because he, in effect, asserted the protection of the Constitution.

For him now to be held hostage to proceedings in other courts for who knows how long and in what circumstances, may suggest some – certainly in his eyes – unfairness to him.  This matter, as I say, is a short matter.  It can be activated in this Court quickly and disposed of quickly.

HIS HONOUR:   That is true but there are two considerations, first, that this Court being the final Court, and because of its appellate as well as constitutional functions is heavily burdened by cases that come before it and by the special leave process, that process has been provided to permit the Court, generally, to have control over matters in accordance with their relative significance and arguability and justice through the special leave system and you, in a sense, are getting on an escalator to come straight into the Court, as you are entitled to do, but there is a provision which you have to face that permits the Court to remit.

That provision is not suggested to be invalid.  It is there in the Act.  It has to be reconciled with the other provisions of the Judiciary Act and, in a sense, it ensures equity as between all litigants in Australia.  So, given that there has been litigation in the Federal Court and there is further litigation to come to the Federal Court and those proceedings in the Federal Court are going to meander their way to this Court through the special leave process, the added factual consideration suggests that your client should have to take the same course as the other litigants and then it may be that if one case is granted special leave that you could renew the application to bring the matter back into this Court and to revoke the order of remitter.  Is that not the appropriate course to adopt?

MR WENDLER:   With respect, that appears to be procedurally a little cluttered, so to speak.

HIS HONOUR:   Not really.  I mean, it is what the other two litigants had to face, Mr Kamha and Mr Albarran.

MR GAGELER:   I should make clear, your Honour, Mr Kamha’s case came up through the Federal Court system.  The other two litigants were Mr Albarran and Mr Gould.  The papers relating to Mr Gould are behind Mr Albarran.

HIS HONOUR:   Yes.  They are both under the Insurance Act are they?

MR GAGELER:   No, Mr Kamha was under the Insurance Act and the other two matters were liquidators disqualifications under section 1292 of this Act.

HIS HONOUR:   I see Mr Perram was counsel for Mr Albarran.  He was the counsel who I believe originally conceived the Wakim litigation laws.  He was certainly involved in it.

MR GAGELER:   Yes, he is a creative man.

HIS HONOUR:   He was proved right against all the odds and against the original decision of this Court in Gould.

MR WENDLER:   The other aspect of it is that this application, in effect ‑ ‑ ‑

HIS HONOUR:   I can foresee what you are going to say, it delays the matters on your client’s point of view, and it builds up the costs, from his point of view and there is an arguable issue which arguably is important and which in the public interest should arguably be determined quickly rather than slowly.  I understand all those points.

MR WENDLER:   I was certainly going to mention that.  It also brings into focus the resolution of that which was not necessary to resolve in Rich, that is the judicial power point.  There was no judicial power point in Rich.

HIS HONOUR:   Have you the decision in Rich with you?

MR WENDLER:   No, I have not, your Honour.  There was no judicial power issue in Rich.

HIS HONOUR: I realise that but what was the matter that troubled my colleagues sufficiently to say something? Sometimes matters arise in cases which indirectly send alarm bells ringing even though they are not expressly raised in the case and in those events judges say things. It was said, I think, by Justice Gaudron and Justice Gummow in the double jeopardy case as to whether that was compatible – any change of the law would be compatible with the Constitution – any different law would be compatible with the Constitution. That did not have to be said in that case but it was said just to make sure it was not overlooked.

MR WENDLER:   There was the focus between – or, rather the treatment of the dichotomy between what was regarded as protective legislation or punitive legislation and in the end I think the Court indicated that that was not necessarily a profitable exercise, the differentiation between what is punitive and what is protective.

HIS HONOUR:   Sometimes punishment is the very vehicle for protection.

MR WENDLER:   Yes. That is the importance of this particular application because this particular section which is – one would expect – is used as a very important and effective power in the overall obligation to corporate governments in the country. It has a section in it which may be construed or is capable of being used in such a way that it in fact is always punitive and never protective. In that sense, the importance of this application is sharpened, especially since the applicant in this case has declined to partake of any interviews or interrogation and asserts the protection of the Constitution to allow him to remain in that penumbra, if you like.

HIS HONOUR:   That seems to suggest that the matter should be dealt with quickly.

MR WENDLER:   Yes.

HIS HONOUR:   He may well be in serious breach of the Corporations Act if the Act in this provision is valid, so the only issue is how the matter ought properly to come to this Court.  It is not whether you can have your day in court.  You can.  It is where and when.

MR WENDLER:   I appreciate that.  It is my respectful submission that because in many ways it is an extension of this Court’s decision in Rich.  From the judicial power Chapter III point of view it is a matter that can be expedited and resolved with some rapidity.  It is, as I say – I do not know the length of the cases that are in the Federal Court.  They may be two or three day cases, for all I know, but this is definitely a half day to a day case.

HIS HONOUR:   Yes, but if we were to hear this case almost certainly the Court would want to consolidate it with the other cases and then we are talking about a six month or so delay.

MR WENDLER:   Yes.

HIS HONOUR:   It was a two‑day hearing in the Federal Court in Kamha.

MR WENDLER:   At the very least, this matter should not be remitted to the Federal Court or any other court.  The only procedural step that should be taken is some form of consolidation, perhaps, to allow him to come on at the same time, for instance, as the other ‑ ‑ ‑

HIS HONOUR:   Is your client, pending the hearing of this case, continuing to act in a managerial position?

MR WENDLER:   No.  Serious criminal offences - as set out by the Act to act in a managerial position – in fact, it ‑ ‑ ‑

HIS HONOUR:   That is premised on the fact that he has not been the subject of a valid order under section 206F but notwithstanding your contention about the validity of section 206F and the fact that he would not appear before proceedings based on his objection to the validity of that section he has not continued to act in a managerial position of a corporation.

MR WENDLER:   That is right, as I understand it, because of the serious consequences.  If in the end the section was held to be constitutional, there would be ramifications for him insofar as the attraction of the criminal law is concerned.  It is my respectful submission, at the very least, it should not be remitted.  That, by itself, would create further expense to him.

HIS HONOUR:   I realise that but that is always involved in remitter and, unfortunately, when you get into this Court you have to – in the original jurisdiction you have to face arguments of remitter.  I had to deal with one earlier in the day.

MR WENDLER:   Yes.  Of course, his opponent is a corporate body that does not have, one would assume, the same constraints on funding and things of that kind.

HIS HONOUR:   I know all those things but I have to somehow now consider this case in the light of what has developed in the cases of Kamha and Albarran where similar questions have arisen, in each of which the matter was before the Federal Court and where, if the matter were to come to this Court, this Court would at least then have the decisions of the Federal Court to assist it and it would go up the normal channel which is via special leave application.

MR WENDLER:   Yes.  Your Honour, I appreciate all those procedural ‑ ‑ ‑

HIS HONOUR:   Is it a wrong consideration for me to take into account that although I would myself have been inclined, standing alone, to leave this matter in this Court and to proceed with the matter on the basis that it can be dealt with in the Court either on the summons or by a special case, but because of the decision of Justice Heydon remitting a similar question to the Federal Court in Albarran and because of the proceedings in the Federal Court in Kamha and the decision of the Full Court of that Court, that your case should likewise take the path through the Federal Court.  Are they irrelevant considerations or are they relevant considerations to the question of remitter of your proceedings?

MR WENDLER:   Like Mr Gageler, it is a bit of both.  On the one hand your Honour has to determine this matter on its merits, on the constitutional question involved, the validity of the question ‑ ‑ ‑

HIS HONOUR:   Merits now include, I think, factual developments that have occurred.

MR WENDLER:   Yes.  All the matters that the High Court Rules mandate should be obviously taken into account in respect of a matter in the original jurisdiction.

HIS HONOUR:   Can an order of remitter under section 40 be revoked and the matter brought back?

MR WENDLER:   I do not think it can, procedurally. Section 44 it is, your Honour, I think. Section 40 is the removal section.

HIS HONOUR: Section 44. Is there not something in the Acts Interpretation Act that says that where a statute provides for the exercise of a power, it provides for the revocation of that exercise?  If that could be done, then I would be inclined to remit but reserve to you the opportunity, in the event that special leave is granted in Kahma or in Albarran or in both of them, to apply to bring the matter back into this Court in order that it should go to the Full Bench with those cases so that common issues of constitutional issues could be argued with your assistance for your client.

MR WENDLER:   Yes.  I must admit I do not know the answer to that question immediately, the Acts Interpretation Act question.  The other way it could be achieved, I suppose, is to stand this matter over generally until after the applications.

HIS HONOUR:   I learned in the Court of Appeal to be very resistant to orders standing matters over generally.  They tend to disappear into the nether land.

MR WENDLER:   Mr Gageler informs me that as far as he knows, those matters do not have any dates.  In fact, probably there has been no application for special leave ever filed.

HIS HONOUR:   The advantage from your client’s point of view is that if the matter is remitted to the Federal Court, it goes into the list and it begins to take its place in that court’s list.  If determination in that court is against him, whatever the outcome in the other cases which may have statutory distinctions from this case, he can come back to this Court and seek to bring the matter to the Court by special leave application.

MR WENDLER:   Yes.

HIS HONOUR:   Mr Gageler, one would intuitively think there is a power to revoke an order of remitter to the Federal Court either in the Judiciary Act or in that Act with the Acts Interpretation Act or under the Constitution.

MR GAGELER:   Section 33 of the Acts Interpretation Act, which I do not have with me, from memory says that where a section of an Act gives power to do something or to make an order, then it likewise gives power to revoke.

HIS HONOUR:   Yes, from time to time.

MR GAGELER: Yes. The difficulty with section 44 I think is that remitter terminates the jurisdiction of this Court and confers derivatively jurisdiction on the court to which the matter is remitted.

HIS HONOUR:   And 33(1) is to do something, but the “something” is the remitter, not the termination remitter or the revocation of remitter.

MR GAGELER: Yes, and remitter of course is something that is done in a matter which is pending in the court. Once remitter has occurred, there is nothing left. So we would see a difficulty with section 44 being used together with section 33 of the Acts Interpretation Act to revoke or remit it.  Another possibility is wherever Mr Wendler’s matter might be within the system, he could always seek removal under section 40 even if it had not got to a stage where there was something to seek special leave to appeal from.  One would think that if the other matters ‑ ‑ ‑

HIS HONOUR:   Perhaps that is why section 40 was lurking around in the back of my mind when I mentioned section 40.

MR GAGELER:   So section 40 would provide a procedural course to get the matter back if special leave were granted in any of the other matters.

HIS HONOUR:   In the event that special leave were granted in that case, would your client co‑operate in an application to the Federal Court for removal from that court to this Court so that any common constitutional questions could be determined with the assistance of the submissions on behalf of Mr Visnic?

MR GAGELER:   Yes.  The application would be to this Court under section 40.

HIS HONOUR:   Yes.

MR GAGELER:   Yes, we would.

HIS HONOUR:   I think that provides the solution, Mr Wendler.  I think we have come by that course of submissions to the conclusion that the matter of Visnic should be remitted to the Federal Court in accordance with section 44 of the Judiciary Act but that if before the hearing in that court special leave has been granted in either or both of the matters where it is said similar issues have been raised, namely Kahma and Albarran, you would make an application on behalf of Mr Visnic for removal into this Court of the proceedings in the Federal Court pursuant to section 40 and that removal would be supported by the present defendant so that your client would not be put out of submissions to this Court that are common to the constitutional submissions that may be made in Kahma and Albarran if they come here.

MR WENDLER:   That seems to be the best of the procedural avenues open at the moment.

HIS HONOUR: Very well, they will be the orders that I make. For the reasons which appear in the transcript of submissions in this Court, the conclusion that I have reached is that these proceedings should be remitted to the Federal Court of Australia in accordance with section 44 of the Judiciary Act 1903 (Cth). The proceedings will take their normal course in that court.

However, because this Court has been informed that certain common issues may be raised in this case and in Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248, already decided, and in Albarran v The Members of the Companies Auditors & Liquidators Disciplinary Board (former matter No S349 of 2005 in this Court, remitted to the Federal Court by Justice Heydon) and Gould v Donald Magarey and Others of the Companies Auditors & Liquidators Disciplinary Board (former matter No S295 of 2005 in this Court, remitted to the Federal Court by Justice Heydon) it is appropriate to note that, if those matters come to this Court, an application for removal under section 40 of the Judiciary Act 1903 (Cth) might be made on behalf of the plaintiff, Mr Visnic. In that event, the defendant in these proceedings has indicated that it would co‑operate in an application for removal of those proceedings into this Court so that any common constitutional or other issues that arise might be determined in these proceedings in the light of any decisions made in the others.

The orders that I make are:

1.        Remit the summons to the Federal Court of Australia; and

2.Order that the costs of the proceedings in this Court be costs in the proceedings so remitted.

Is there any other order that you ask?

MR WENDLER:   No thank you.

HIS HONOUR:   Under the new Rules we do not now have to make orders about Chambers.  I thank both counsel for their assistance to me in reaching my conclusions.  Though your client may be disappointed by the outcome today, he may yet live to see another day in the Court, Mr Wendler.

The Court will now adjourn.

AT 11.47 AM THE MATTER WAS CONCLUDED