Yates Secruity Services Pty Ltd v Paul Keating, Rockvale Pty Ltd

[1990] FCA 792

JUDGMENT No. I?.& . / ?Q.--...

LIMITED DISTRIBUTION

practice and Procedure - Continuation of injunction pending application for special leave to appeal to the High Court - Factors relevant to exercise of discretion to continue injunctions.

Foreign Acquisitions and Takeovers Act 1975: s 35(1), (2)(c);

S. 38.

YATES SECURITY SERVICES PTY. LIMITED v PAUL KEATING. ROCKVALE

PTY- LIMITED	ORS.
NG 631 of 1990

Lockhart, Morling and Pincus JJ.
21 December 1990

Sydney

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RAL COURT OF AUSTRALIA )

1

SOUTH WALES DISTRICT REGISTRY	) No. NG 631 of 1990
)

- )

QN APPEAL FROM A SINGLE JUDGE OF

BETWEEN:  YATES SECURITY SERVICES PTY.
LIMITED

Appellant

AND:	THE HONOURABLE PAUL KEATING
First Respondent ROCKVALE PTY. LIMITED

Second Respondent

VALTONE PTY. LIMITED

J Provisional	Liauidator
A~~ointedL

Third Respondent

REGISTRAR-GENERAL OF NEW

SOUTH WALES

Fourth Respondent

JUDGES MAKING ORDER:	LOCKHART, MORLING & PINCUS JJ.
WHERE ORDER MADE:	SYDNEY
DATE ORDER MADE:	2 1 DECEMBER 1990

MINUTE OF ORDER

THE COURT ORDERS T w :

1. On the second respondent by its counsel undertaking to the Court that it will not assign or dispose of its interest in the lease between Valtone Pty Limited (Provisional

   Liquidator Appointed) and the Darling Harbour Authority of

   26 April 1988, pending the determination of the proposed

   application for special leave to the High Court by the appellant, the motion for an order extending the injunctions previously granted is refused until further order.

2.   The appellant pay the costs of the first and second respondents.

- 8	Settlement and entry of orders is dealt with in Order
36 of the Federal Court Rules.

LIMITED DISTRIBUTION

E FEDERAL COURT OF AUSTRALIA ) )

m SOUTH - T REGISTRY ) No. NG 631 of 1990

)

GENERAL D I V m )

PN -PEAL FROM A SINGLE JUDGE OF

THE FEDERAL COURT OF A U S T W

BETWEEN:  YATES S - SERVICES PTY.

bIMITD

Appellant

AND :	THE HONOURABLE PAUL KEATING
First Respondent ROCKVALE PTY. LIMITEQ

Second Respondent

Third Respondent

REGISTRAR-GENERAL OF NEW

SOUTH W-

Fourth Respondent

COURT :	Lockhart, Morling and Pincus JJ.
DATE :	21 December 1990
PLACE :	Sydney

REASONS FOR JUDGMENT

THE COURT: This morning the Full Court gave judgment in this matter in which it dismissed the appeal and allowed the two cross appeals. The Full Court also set aside the declarations and orders of the learned trial Judge except order 3 dissolving an interlocutory injunction granted on the 25 September 1990. The Full Court made certain other orders which it is unnecessary to refer to for the present purposes.

Counsel for the appellant immediately foreshadowed that special leave to appeal to this Full Court's judgment would be made to the High Court as soon as reasonably practicable and it was hoped that the High Court's list would be such that it would be able to have the application for special leave heard in mid-February next. The matter was then stood down until 4 o'clock today so that the parties could read the Full Court's reasons for judgment and make any further submissions they wished with respect to the then foreshadowed motion by the appellant to continue the interlocutory injunctions previously granted and to which I shall now refer. Those injunctions were made in these terms :

(1) until 16 November 1990 or further order the second

respondent, Rockvale Pty Limited ("Rockvale") be restrained

over the land contained in the relevant certificates of	having registered any transfer of lease (number X572866) from taking any step or doing any thing for the purpose of
title pursuant to the Real Property Act 1900 of New South Wales; and

(2) that until 16 November, 1990 or further order the fourth respondent, the Registrar-General of New South Wales, be restrained from taking any step or doing anything for the purpose of having registered any such transfer of lease.

The appellant now seeks to have those injunctions continued until at least the determination by the High Court of its foreshadowed application for special leave.

The essence of the appellant's argument is that, if the injunctions are not granted, it will be open to Rockvale to seek to perfect its title to the relevant lease by having it registered and that there will then be no bar to the Registrar General registering the same. This is said to be contrary to the public interest which the appellant asserts in these proceedings. The appellant also relies upon the effect of S. 38 of the .Toreign

Acqu i s i t i ons and Takeovers Ac t 1975 which in terms provides that:

"An a c t i s not i n v a l i d a t e d by t h e f a c t tha t

i t c o n s t i t u t e s an o f f e n c e aga ins t t h i s A c t . "

The appellant also relies upon the fact that Rockvale would be at liberty, having got itself onto the register and perfected	its title, to assign or otherwise transfer its interests to any
person it wished. Rockvale and the first respondent, the Treasurer, opposed the continuation of the interlocutory injunctions on a number of grounds including the grounds that the balance of convenience favours those injunctions not being continued; that the public interest which the appellant seeks to assert is not jeopardised by the injunctions not continuingiand
that there is detriment to Rockvale from being restrained as sought because it would then have difficulties in continuing with its proposed development and rebuilding programmes in the areas in question, though no evidence has been adduced to give particulars of those difficulties. In addition, of course, Rockvale relies, as does the Treasurer, upon the fact that exceptional circumstances must be shown before the exercise of the Court's power to grant injunctions in these circumstances is warranted.
On the one hand it is easy for the Court to say that, as the High Court will hear any application for special leave at some stage in the earlier part of 1991, and as an undertaking as to damages is proffered by the appellant in the meantime, it is best that the injunctions continue so that in due course the High Court can look at it and continue them if it wishes. That, of course, is a matter which is always open to the High Court to do as the ultimate appellant court. However, in my opinion that is
although Rockvale lost before the learned primary Judge, it won not a proper course for this Court to take. The fact is that,
on appeal to this Full Court. The relevant principles to apply are those expressed in Jennings Constructions Limited v Burgundy
Royale Investments Pty Limited by Brennan J., ( 1986) 161 CLR 681;
69 ALR 265 especially at 267.

His Honour was there dealing with the question of a stay of orders under appeal pending an application for special leave to appeal to the High Court. This is not an application to stay; it is an application to continue injunctions previously granted. But in essence it is the same and we propose to regard them as the same for all relevant purposes. His Honour pointed out at page 267 that:

" A s t a y t o pre se rve	the	s u b j e c t	m a t t e r	o f
l i t i g a t i o n	pending	an	a p p l i c a t i o n	f o r
s p e c i a l	l e a v e	t o appeal	i s an	e x t r a o r d i n a r y

j u r i s d i c t i o n and e x c e p t i o n a l c i r cums tances

must be shown b e f o r e i t s exercise i s

warranted. I f an o rder f o r a s t a y i s made,

the responden t i s k e p t o u t o f the b e n e f i t o f the o r d e r o f the Court i n which the m a t t e r

i s pending u n t i l the h e a r i n g o f the

a p p l i c a t i o n f o r s p e c i a l l e a v e t o appea l .

That was the s i t u a t i o n t o which t h i s Court

adver ted i n Barcon i ' s Wireless T e l e a r a ~ h CO,

u i t e d v The Commonwealth [No . 31 ,	(1913)
16 CLR 384.	There the Cour t granted an

o r d e r s t a y i n g the o p e r a t i o n o f one o f i t s

own o rder s pending the h e a r i n g o f an

a p p l i c a t i o n t o the P r i v y Counci l f o r s p e c i a l

l e a v e t o appea l . What the Cour t s a i d i n

t h a t c a s e	( a t p.	386) i s a p p l i c a b l e	t o t h i s
case :

'The Court w i l l n o t o r d i n a r i l y

grant a n a p p l i c a t i o n o f this k i n d

u n l e s s very s t r o n g and s p e c i a l

grounds a r e shown. T h i s i s a

very p e c u l i a r c a s e . The

c o n d i t i o n s a r e such t h a t , on the

one hand, i f the s t a y i s granted

w i thou t more, the whole b e n e f i t

o f the a c t i o n may be lost to the

p l a i n t i f f s , w h i l e , on the other

hand, u n l e s s the s t a y i s granted

on some f a i r t e rms , the

d e f e n d a n t s ' appeal w i l l be

nugatory .	I t	r e a l l y	i s	a
q u e s t i o n	o f	the	p r e s e r v a t i o n	o f

the r i g h t s o f the p a r t i e s w i t h o u t

d i s r egard o f the ba lance o f

conven ience . ' "

The second respondent, Rockvale, offers an undertaking to the Court that it will not assign or dispose of its interest in the relevant lease pending the determination of the foreshadowed application for special leave to appeal to the High Court by the appellant. We have taken that into account.

The application by the appellants for the injunction is indeed one which would be the exercise of an extraordinary jurisdiction; and exceptional circumstances must be shown before its exercise is warranted. We are not persuaded that those

exceptional circumstances have been established or exist. In our view the public interest which the appellant seeks to assert, assuming for the moment that he would assert it in due course in a manner which is upheld by the High Court, does not lead to such h a m to the public interest as would justify the grant of the orders sought.

Included in the matters which we have considered are the provisions of ss. 35(1) and 35(2)(c) of the Foreign Acquisitions	and Takeovers Act 1975. Although we do not propose to grant the
injunctions we note that if circumstances relevantly change, such as the public interest was seen in fact to be in jeopardy, it is always open for interested parties to make application to the appropriate court to hold the status quo.
Accordingly, upon the second respondent by its counsel undertaking to the Court that it will not assign or dispose of its interest in the lease between Valtone Pty Limited (Provisional Liquidator Appointed) and the Darling Harbour Authority of 26 April 1988, pending the determination of the proposed application for special leave to the High Court by the appellant, the motion for an order extending the injunctions previously granted until further order is refused.
We should note that although the argument has proceeded on the basis that the injunction referred to exists, it would have come to its conclusion with the pronouncement of the Full Court's orders this morning.
As to costs, in our opinion the proper order for costs is that the appellant should pay the costs of the first and second respondents of the motion today and accordingly the Court makes that order.

I certify that this and the

preceding six (6) pages are a	true copy of the reasons for
judgment herein of the Court.
Associate Dated: 21 December 1990

Counsel for the Appellant	:	Mr B W Rayment QC and
Mr R J H Darke

Solicitors for the Appellant :	Michael Mobbs
Counsel for the First Respondent:	Mr D Hrobat
Solicitors for First Respondent:	Australian Government Solicitor
Counsel for Second Respondent :	Mr P F Esler
Solicitors for Second Respondent:	Giam & De Rubeis
Solicitors for Third Respondent :	Mallesons Stephen Jaques
Solicitors for Fourth Respondent:	L P Hawthorne
Date of Hearing	21 December 1990
Date of Judgment	21 December 1990