Computershare Ltd v Perpetual Registrars Ltd

D. Graham QC Solicitor General for the State of Victoria with Ms P. Tate

D.M.J. Bennett QC Solicitor General for the Commonwealth with

2. The plaintiff claims that the defendants wrongfully disclosed confidential information. The plaintiff bases its claim in contract and equity. The first and second defendants in their defence and counterclaim have denied the allegations and, also, pleaded that in so far as there were arrangements between them and the plaintiff such arrangements contravened the restrictive trade practices provisions Part IV of the Trade Practices Act 1974. The provisions of the statute fall within the exclusive jurisdiction of the Federal Court of Australia. As a consequence, the first and second defendants seek the transfer of the proceeding pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic). The plaintiff opposes the application and urges that the proceeding remain within the Commercial List of this court.

5. Each of the defendants supported the cross resting of the proceedings. Notice was given to the Attorneys-General for the State of Victoria and the Commonwealth of Australia. Submissions in support of the transfer of the proceedings were made on behalf of the Attorneys-General.

10. Computershare is engaged in the business of providing share registry and bureau services for public listed companies. These services are generally referred to in the industry as bureau services. The services provided by Computershare include the provision of a share registry involving the maintenance of a database of share holders and details, the processing of share transfers, the calculation and payment of dividends, the management of dividend reinvestment plans and other various activities relating to provision of share registry and maintenance. It also provides bureau services consisting of the maintenance of a central computer system that contains the database of registry information and matters derived from the registry services provided by Computershare. It claims that it develops software to enable Computershare to provide a comprehensive range of securities, registry and bureau services to its clientele utilising software that was developed on an ongoing basis. Computershare expanded its share of registry and bureau services to the point that it alleges that it is now the largest provider of registry services in Australia. The first defendant, Perpetual Registrars, is the second largest provider of share registry services and is a direct competitor with Computershare in the marketplace.

13. The proceedings were commenced on 4 April 2000. Computershare alleged that it entered into an agreement on 1 September 1998 ("The Bureau Services Agreement") with Perpetual Registrars and the second defendant, Perpetual Trustees. Under the Bureau Services Agreement Computershare agreed to provide its bureau services to Perpetual Registrars. The agreement contained particular confidentiality clauses. Computershare alleges that on a date unknown to it but it seemed shortly before 20 March 2000 Perpetual Trustees and the Australian Stock Exchange entered into an agreement for a proposed joint venture that gave rise to the alleged disclosure of confidential information in breach of the terms of the Bureau Services Agreement. As a result of these circumstances and exchanges between Computershare and Perpetual Registrars, Computershare commenced this proceeding. Initially, it sought an interlocutory injunction against the defendants restraining the access, disclosure and use of the information alleged to be confidential. It also sought the filing of an affidavit by the defendants concerning the access, disclosure and use of that information and discovery of documents by the defendants prior to the closure of pleadings pursuant to Order 29.07 of Chapter 1 of the Rules of the Supreme Court. In addition, the plaintiffs sought non party discovery against the Australian Stock Exchange pursuant to Order 32.07 of the Rules.

16. Computershare was successful on its interlocutory application [1] and consequential orders were made. The proceeding remained in the Commercial List of this Court and on 11 May 2000 the first and second defendants filed their defence. In the defence the Perpetual interests denied that they had divulged confidential information. They alleged further that on the construction and definition of confidential information relied upon by Computershare in the proceeding as contained in the Bureau Services Agreement together with the entering into and giving effect to the agreement constituted conduct in breach of Part IV of the Trade Practices Act. The Perpetual interests counter claimed against Computershare and one Christopher John Morris seeking declarations that Computershare had contravened Sections 45 (2) (a) (i) (ii) and (b) (i) (ii), 46 and 47 (1) of the Trade Practices Act and that Morris had been knowingly concerned in the contraventions alleged. The Perpetual interests also sought damages pursuant to Section 82 of the Trade Practices Act.

19. In the counter claim the Perpetual interests alleged that the overwhelming majority of bureau services provided in Australia are supplied by Computershare in that it has a market share of about 85-90%. The Perpetual interests alleged that arising from the market share enjoyed by Computershare:

(1) It has the capacity to raise price over supply without the risk of losing customers.

(2) Parties such as the Perpetual interests have no practical alternative supplier of bureau services available to them.

(3) Computershare is vertically integrated as it has the capacity to supply bureau services upstream in the bureau services market and downstream in the registry services market.

(4) As a result of the monopoly currently enjoyed by Computershare it would take a potential competitor at least eighteen months to enter the bureau services market

(5) There are significant barriers to entry in the bureau services market arising from:

(a) Establishment costs and initiatives;

(b) Minimum scale requirements of the markets;

(c) Establishment lead time;

(d) The lack of significant customers until the expiration of the Bureau Services Agreement between Computershare and Perpetual.

30. In summary, the Perpetual interests allege that if Computershare was to succeed in upholding the terms of the Bureau Services Agreement, in particular, the confidentiality provisions as it purports to do, the terms of that agreement and the associated conduct of Computershare is in breach of the restrictive practices provisions of the Trade Practices Act. Section 45 (2) (a) (b) of the Act prohibit the making of contracts that contain an exclusionary provision or would substantially lessen competition. Section 46 prohibits a corporation that has a substantial degree of power in a market from misusing such powers. Section 47 (1) of the Act prohibits a corporation from engaging in exclusive dealings. Perpetual alleges that a result of the position and the power of Computershare in the bureau services market the terms of the Bureau Services Agreement and the conduct of Computershare in relying upon the agreement in this proceeding amount to breaches of Sections 45 (2), 46 and 47 of the Trade Practices Act.

33. In separate proceedings Computershare claimed moneys said to be owed by Perpetual to Computershare under the Bureau Services Agreement (hereafter referred to as "the other proceeding"). There was no issue between the parties that the other proceeding did not raise any special federal matters. However, it is clearly a related proceeding as it is concerned with the Bureau Services Agreement that is the subject of the dispute between the parties in the primary proceeding before me. Accordingly, the disposition of the primary proceeding is potentially relevant to the future disposition of the other proceeding.

36. The matter came before me to determine whether or not the proceeding should be transferred to the Federal Court pursuant to the provisions of s.6 of the Jurisdiction of Courts (Cross-Vesting) Act. The Perpetual interests urged that the proceeding should be transferred. The third defendant, Morris, indicated that he abided by the decision of the court and did not seek to make any submissions. The Attorneys-General for the State of Victoria and the Commonwealth intervened in the proceeding pursuant to s.78A of the Judiciary Act 1903 (Cth) in support of the first and second defendants' position having received notification pursuant to s.78B of that Act that a matter arose under The Constitution or involved its interpretation and, further, in response to notices given pursuant to s.6(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic) ("the State Act") and s.6(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Commonwealth Act").

39. Computershare submitted that the proceeding should not be transferred under s.6 of either the State or Commonwealth Act. The position of the plaintiff was based on two grounds. First, that this court has no power to transfer the proceeding because s.6 in both Acts is of no effect. In essence the first argument was that s.6 was wholly dependent upon other provisions of the Commonwealth Act that are constitutionally invalid and upon other provisions of the State Act that are of no effect. It was submitted that the provisions gave the Federal Court jurisdiction to accept and deal with the "proceeding" referred to in s.6 but that since Re Wakim; ex parte McNally [1999] HCA 27; (1999) 73 ALJR 839 these provisions are now invalid and/or of no effect. It was submitted that, accordingly, the foundation for s.6 was removed and that the section is in its current form is invalid or of no effect. It was further submitted that the invalidity of s.6 was recognised by the enactment by the Commonwealth of the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) and the enactment by the State of the Federal Courts (Consequential Amendments) Act 2000 (Vic).

42. The plaintiff's first argument can be summarised as:

(a) section 6(1) relies upon section 9(2) of the Commonwealth Act and section 4(1) of the State Act for its foundation;

(b) section 9 (2) of the Commonwealth Act is invalid because it purports to confer state jurisdiction on the Federal Court contrary to Chapter III of The Constitution and section 4 (1) of the Victorian Act is of no effect as it purports to confer state jurisdiction on the Federal Court which is not in accordance with Chapter III;

(c) section 6(1) is thus deprived of its foundation; and,

(d) as a result, section 6(1) of the Commonwealth Act has no constitutional validity and section 6(1) of the Victorian Act has no effect.

48. The second ground of the submission by Computershare was that if s.6 was nevertheless valid there were "special reasons" for this court in the exercise of its discretion under s.6(3) of both the State and Commonwealth Acts to order that the proceeding be determined in this court. The argument was developed on the basis that many of the claims in the present proceeding and the other proceeding would not or may not come within the original or accrued jurisdiction of the Federal Court.

51. I turn to consider each of the plaintiff's arguments based on invalidity and special reasons.

56. Section 6(1) of the State Act provides:

(a) a matter for determination in a proceeding that is pending in the Supreme Court is a special federal matter; and

(b) the court does not make an order under sub-section (3) in respect of the matter the court must transfer the proceeding in accordance with this section to the Federal Court ... "

Sub-section (3) of s.6 provides:

"The Supreme Court may order that the proceeding be determined by that Court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding -other than reasons relevant to the convenience of the parties."

Sub-section (6) of s.6 provides:

"In considering whether there are special reasons for the purposes of sub-section (3), the court must -

(a) have regard to the general rule that special federal matters should be heard by the Federal Court

(b) take into account any submission made in relation to the proceeding by an Attorney-General mentioned in sub-section (4)."

69. Computershare acknowledged that s.6 establishes a mandatory requirement on the Supreme Court to transfer a proceeding to the Federal Court in certain circumstances. Those circumstances are where "a matter for determination" in a "proceeding" pending in the Supreme Court is a "special federal matter", unless the Supreme Court has made an order under s.6(3) that the proceeding be determined by it. The "proceeding" the subject of the transfer does not have to be exclusively or primarily concerned with a "special federal matter". On the face of s.6 the transferred proceeding can include state matters, including state matters that would not be part of the Federal Court's accrued jurisdiction. However, Computershare submitted that the cross-vesting scheme (including s.6) clearly intended to confer a broader jurisdiction and s.6 was predicated on that broader jurisdiction. Reliance was placed upon the observations of McHugh J in Re Wakim:

"Those supporting the validity of the legislation by reference to the incidental powers have to overcome the formidable barrier that the cross-vesting of State judicial power has nothing to do with federal jurisdiction. If the substratum of fact which gives rise to a matter in federal jurisdiction cannot be effectively disposed of without the application of State law, the issues of State law are determined in the exercise of federal jurisdiction. As Mason, Brennan and Deane H pointed out in Stack v Coast Securities (No 9) Pty Ltd, federal jurisdiction is "not restricted to the determination of the federal claim or cause of action in the proceeding, but extend[s] beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part." The determination of State law issues in such circumstances is part of the "accrued jurisdiction" of the federal court. Federal courts do not need the States, with or without the consent of the Parliament of the Commonwealth, to confer jurisdiction upon them before they can determine issues arising under their accrued jurisdiction. But the jurisdiction which the legislation in the present proceedings purports to confer upon the federal courts is not accrued federal jurisdiction. It is an attempt to confer State jurisdiction in respect of controversies that fall outside the realm of federal jurisdiction. Apart from the fact that a litigant in a federal court has sought to raise in that court a separate and distinct non-federal claim, the alleged incidental matter has nothing to do with the federal courts or their federal jurisdiction."

73. Computershare submitted that, ordinarily as a consequence of the principle stated by McHugh J in Re Wakim, subject to the Supreme Court ordering otherwise under s.6(3), the Supreme Court must transfer the "proceeding" to the Federal Court. It was argued that it is the 'proceeding" that must be transferred, not just that part of it that is a special federal matter. Hence the proceeding to be transferred encompasses any state matter including a state matter that falls outside the Federal Court's accrued jurisdiction. It was argued that the cross-vesting scheme does not enable the transfer of parts of a proceeding and urged that it is not envisaged under s.6 that part of a proceeding be transferred (say, the special federal matter part and not the parts being other than special federal matters) by the Supreme Court to the Federal Court. That is, s.6 concerns the transfer of a whole "proceeding". It was said that it follows that the proceeding transferred to the Federal Court may include matters that are not special federal matters, that fall outside the Federal Court's accrued jurisdiction, and are solely within State jurisdiction and require the exercise of state judicial power.

76. From this basis Computershare submitted that s.6 must be dependent upon the Federal Court being able to exercise jurisdiction in relation to the "proceeding" transferred to it by the Supreme Court and not just that part of it that involves a special federal matter or anything merely within the Federal Court's accrued jurisdiction. It argued that the jurisdiction is predicated upon the Federal Court being able to exercise jurisdiction for any parts of the proceeding that are solely within State jurisdiction, that require the exercise of state judicial power and would fall outside the Federal Court's accrued jurisdiction. Otherwise s.6 renders mandatory the transfer of a proceeding to the Federal Court in circumstances where the Federal Court does not have jurisdiction to hear and determine parts of the proceeding, that is, the non special federal matters not otherwise in the jurisdiction of the Federal Court. It was argued that this would be an absurd result, such outcome being exaggerated by the mandatory requirement on the Supreme Court that, if a matter for determination in a proceeding is a special federal matter and the Supreme Court does not make an order under s.6(3), it "must" transfer the proceeding to the Federal Court.

79. It was further argued on behalf of Computershare that the particular provisions of the cross-vesting scheme that s.6 must be construed with and found to be reliant upon are s.9 of the Commonwealth Act and s.4 of the State Act. It argued that the sections were interconnected. Section 9 of the Commonwealth Act provides:

"s.9(1) Nothing in this or any other Act is intended to override or limit the operation of a provision of a law of a State relating to cross-vesting of jurisdiction. (2) The Federal Court, the Family Court or the Supreme Court of a

Territory may: (a) exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of a State relating to cross-vesting of jurisdiction; and (b) hear and determine a proceeding transferred to that court under such a provision."

83. The reference in s.9(2)(a) of the Commonwealth Act to a "provision ... of a law of a State relating to cross-vesting of jurisdiction" is to s.4 of the State Act. Relevant for present purposes is s.4(1) of the State Act, which provides as follows.

"s.4(1) The Federal Court has and may exercise original and appellate jurisdiction with respect to State matters."

87. "State matter" is defined in s.3(1) of the State Act to mean a matter -

"(a) in which the Supreme Court has jurisdiction otherwise than by

reason of a law of the Commonwealth or of another State; or (b) removed to the Supreme Court under section 8."

91. Computershare urged that its argument as to the interconnection of s.6 of the State Act with s.9 of the Commonwealth Act and s.4 of the State Act is confirmed by reference to the second reading speech made by the Commonwealth Attorney-General to the Jurisdiction of Courts (Cross-vesting) Bill 1986. The Attorney-General said:[2]

"Under the cross-vesting scheme, no court will need to decide whether any particular matter is truly within Federal or State jurisdiction since in either event the court will have the same powers and duties. This is because, in any particular proceedings, insofar (sic) as the matters involved are within Federal or Territory jurisdiction, the powers and duties will be conferred and imposed by the Commonwealth Act, and in so far as the matters are not within Federal or Territory jurisdiction, the powers and duties will be conferred by complementary State legislation. Provision is made in the Bill to recognise the special role of the Federal Court in matters in which it now has, apart from the jurisdiction of the High Court, exclusive original or appellate jurisdiction. In particular, the Bill provides for the compulsory transfer by a State Supreme Court of any "special federal matter" unless it appears to the Supreme Court that, by reason of the particular circumstances of the case, it is both inappropriate for the matter to be transferred to the Federal Court and appropriate for the Supreme Court to determine the proceedings."

95. Computershare argued the Attorney-General's speech confirms that s.6 was intended to facilitate transfers in a context where, as a result of other provisions in the cross-vesting scheme, "no court will need to decide whether any particular matter is truly within Federal or State jurisdiction since in either event the court will have the same powers and duties".

98. Computershare submitted that, given the interconnection between s.6 with s.4 of the State Act and s.9 of the Commonwealth Act, the decision in Re Wakim means that s.6 of the State Act can have no effect. Its foundation as provided under the cross-vesting regime has been removed. Further, it was not the legislative intention that some other foundation could be used. Computershare argued that its position was confirmed by the provisions of the Jurisdiction of Courts Legislation Amendment Act 2000. At the time of argument the legislation was yet to come into operation. Subsequently, the amendment commenced on 1 July 2000. Item 64 in Schedule I of the amending Act inserted a new sub-section (1A) into s.6 of the Commonwealth Act as follows.

"However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court, or the court mentioned in paragraph (2)(b), as the case may be."

102. This section appears in Schedule 1 of the Act. The "Outline" to the Revised Explanatory Memorandum in the Senate states as follows:

"The Jurisdiction of Courts Legislation Amendment Bill contains amendments to a number of Commonwealth Acts. The amendments: * deal with some of the consequences of the High Courts decision in Re Wakim; ex parte McNally [ 1999] HCA 27; * make provision with respect to the review of decisions in the criminal justice process; * amend the Australian Securities and Investments Commission Act 1989 (ASIC Act) and the Corporations Act 1989 to deal with the combined effect of the decision in Re Wakim and the Corporate Law Economic Program Act 1999 (the CLERP Act); and * amend the Director of Public Prosecutions Act 1983 to deal with the consequences of the High Courts decision in Bond v The Queen. In Re Wakim, the Court decided that Chapter III of The Constitution precludes the conferral of State jurisdiction on federal courts. Schedule 1 to the Bill repeals invalid provisions of the Commonwealth laws that purport to consent to the conferral of State jurisdiction on federal courts."

106. The Revised Explanatory Memorandum for the Senate, in respect of item 64 of the Jurisdiction of Courts Legislation Amendment Bill, stated:

"This item adds a new subsection (IA_)_ to section 6. Section 6 presently provides that proceedings which involve a special federal matter must be transferred to an appropriate federal or State family court. Re Wakim, however, raises the possibility that such a proceeding might not be able to be transferred in total, because some other matter in the proceeding would not be within the federal jurisdiction of federal courts. Subsection (I A) will ensure that the part of the proceeding which is within the jurisdiction of the federal court (including the accrued jurisdiction) will be transferred to the federal court, while the remainder of the proceed goes ahead in the State court."

110. Item 24 in Part 6 of the Federal Courts (Consequential Amendments) Act 2000 (Vic) renders a complementary change to the State Act. The amending State Act came into operation on 1 July 2000.

113. In any event, Computershare argued that the amendments to s.6 affect substantive rights and, accordingly, will not operate retrospectively to cases such as the present one.

116. Computershare submitted that it was inappropriate to construe s.6 in isolation as a mere procedural provision separate from other provisions of the cross-vesting scheme (such as s.4 of the State Act and s.9 of the Commonwealth Act). It said that to do so produces the anomalous effect of commanding the transfer of a proceeding to the Federal Court in circumstances where the Federal Court may not have jurisdiction to bear and determine any matters in the proceeding. It was argued that the existence of sub-s.(3) in s.6 is no answer because, in the absence of an order under s.6(3), the Supreme Court must order a transfer to the Federal Court to occur. Further, it was said that s.6(3) was designed to deal with matters other than jurisdiction because the assumption underlying s.6(1) was that the Federal Court would clearly have jurisdiction. The legislature, it was argued, could not have intended that s.6 could operate in a manner which defeats the manifest object or purpose of the Act, being the amelioration of inconvenience and expense caused to litigants by jurisdictional limitations in Federal, State and Territory courts. Computershare relied upon the preamble to the State and Commonwealth Acts.[3]

119. These principles of statutory construction were said to require that s.6 be construed in combination with and as being reliant upon s.4 of the State Act and s.9 of the Commonwealth Act. However, it was submitted further that the effect of the High Court's decision in Re Wakim on ss.4 and 9 must flow on to make s.6 of the Commonwealth Act invalid and s.6 of the State Act of no effect.

122. Finally, it was argued in support of the invalidity argument that there is no indication in s.6 itself, or elsewhere in the State or Commonwealth Acts, that s.6 should be read to require transfer of a proceeding where a matter for determination is a special federal matter providing that the non special federal matters in the proceeding (if any) are within the Federal Court's accrued jurisdiction_._ It was said that the words cannot simply be read into s.6 because it is convenient in order to carve out some form of continued operation of s.6 post Re Wakim. Computershare argued that such a rider cannot be implied through s.15 of the State Act. It provides:

"This Act shall be read and construed so as not to exceed the legislative power of the State, to the intent that if this Act would, but for this section, have been construed as being in excess of that power it shall nevertheless be valid to the extent to which it is not in excess of that power."

126. Having considered all of the arguments put forward by Computershare I consider they are ill founded.

129. Section 9(2) is not the foundation for s.6(1). Section 6(1) does not require the support of section 4(1) of the State Act. Sections 9(2) and 4(1) were an unsuccessful attempt to ensure that there was no hiatus in jurisdiction in relation to any matter in either a State Supreme Court or the Federal Court. Section 6(1) can still operate and does operate as the Parliament intended without the support of either of those sections. Section 6(1) of the Commonwealth Act does not purport to confer any jurisdiction on the Federal Court nor could it do so[4]. Section 6 (1) is to be characterised as a limitation on the circumstances in which the State Supreme Court should exercise federal jurisdiction and a mechanical provision dealing with the transfer of proceedings.

132. The true foundation of section 6(1) of the Commonwealth Act is section 4(1) of that Act. Section 4(1) of the Commonwealth Act is validly based on section 77(iii) of The Constitution. Section 4(1) creates the circumstances in which section 6(1) is to operate. If separate support were required, s.6 may also be supported by s.51(xxxix) of The Constitution as s.6 relates to matters incidental to the execution of federal jurisdiction. Section 4(1) and section 6(1) of the Commonwealth Act are the essential elements of the undoubtedly valid legislative scheme to confer federal jurisdiction generally on the State Supreme Court subject to a requirement that any "special federal matter" be heard, in the absence of "special reasons", in the Federal Court. To give section 4(1) of the Commonwealth Act effect in relation to a "special federal matter" without the limitations inherent in s.6 would be diametrically contrary to the scheme of the Commonwealth and State legislatures. Accordingly, s.6 of the Commonwealth Act is valid.

135. The procedure which s.6 specifies in the case of any "special federal matter" and the function that section performs, remain workable after the demise of s.9 (2) of the Commonwealth Act and section 4(1) of the State Act. Any "proceeding" in which a "special federal matter" is "a matter for determination" can be transferred to the Federal Court as the section requires. There is no constitutional or other impediment to full implementation of that requirement.

138. Jurisdiction is a separate issue to transfer of the proceeding. Nevertheless the Federal Court will have jurisdiction to deal with the proceeding in its primary jurisdiction in relation to the "special federal matter" and in its accrued jurisdiction in relation to any related claim arising in the same "matter". There will not be other claims which do not arise in that "matter" other than claims which should not have been joined in the proceeding in any event.

141. The defence and counterclaim of the Perpetual interests raise issues under Part IV (sections 45, 46 and 47) of the Trade Practices Act. The subject matter of the Part IV claims includes the matters raised in the statement of claim pleaded by Computershare. The Part IV claims are "special federal matters" within the meaning of s.3(1) of the Commonwealth Act and/or section 6 (1) of the Act and the claims raised by the plaintiff depend on a common substratum of fact so as to bring them within the accrued jurisdiction of the Federal Court. The common substratum includes the very matters alleged in the statement of claim to which Part IV of the Trade Practices Act is a defence. Pursuant to section 6(1) of the Commonwealth Act and/or s.6(1) of the State Act, the proceeding "must" be transferred to the Federal Court of Australia.

144. In Re Wakim the High Court had before it four sets of proceedings: ex p. McNally; ex p. Darvall; ex p. Amann; and Spinks v Prentice. In McNally and Darvall a creditor of a bankrupt brought proceedings in the Federal Court against the Official Trustee in Bankruptcy seeking orders under the Bankruptcy Act 1966 and relief by way of damages for professional negligence against solicitors and a barrister who had advised the Trustee. The solicitors and the barrister contended that the Federal Court had no jurisdiction to hear the negligence action and sought a writ of prohibition. In Amann the Federal Court had ordered that the applicant be summonsed to the court for the purpose of being examined about the affairs of a company. Amann sought orders that the Federal Court had no jurisdiction to make winding-up orders or to order the conduct of the investigation. In Spinks the applicants were summonsed to attend an examination in relation to the winding up of a company. The applicants contended that the Federal Court did not have validly conferred jurisdiction under the Corporations Law. Each of the four proceedings concerned the jurisdiction of the Federal Court in relation to cross-vesting. The High Court considered the validity of the cross-vesting legislative scheme and the corporations legislative scheme.

147. The majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) held that the Commonwealth legislation that purported to confer State jurisdiction on Federal courts is invalid. McHugh J, with whom Callinan J agreed, held that the Jurisdiction of Courts (Cross-Vesting) Acts of the Commonwealth and each of the States are invalid insofar as they purport to give the Federal Court jurisdiction to exercise State judicial power.

"Sections 75, 76 and 77 of Ch. III of the Constitution give the Parliament that legislative power by empowering it to confer jurisdiction on Federal Courts in respect of the 'matters' specified in ss.75 and 76. State jurisdiction or State judicial power is not one of those 'matters'. If a Federal Court, or for that matter a State court, is invested with jurisdiction to determine a matter under ss.75 and 76, it is exercising Federal jurisdiction even when State law must be applied in the proceedings. If State law is determinative in a legal proceeding but there is no 'matter' within the meaning of ss.75 and 76, the court determining the rights and liabilities of the parties is exercising State judicial power and its authority to decide those rights and liabilities is an exercise of State jurisdiction."

"What prevents a State conferring jurisdiction on a Federal Court in respect of a matter specified in ss.75 or 76 is not s.109, but the negative implications arising from Ch. III of the Constitution. By granting power to the Parliament of the Commonwealth to create Federal Courts and by expressly stating the matters in respect of which the Parliament may confer jurisdiction on those courts, Ch. III impliedly forbids the conferring of any other jurisdiction on those courts by the Commonwealth or the States. The express statement of those 'matters' would be pointless if the Parliament or the States could disregard them. Moreover, the reasons that show that the States cannot confer jurisdiction on a Federal Court in respect of ss.75 and 76 matters point just as strongly, perhaps moreso because of s.77(iii), to the conclusion that the States cannot confer State jurisdiction on Federal Courts. ... Federal Courts are created pursuant to the power conferred upon the Commonwealth by s.71 ... They are not created under s.71 as courts of general jurisdiction waiting to receive grants of Federal and non-Federal jurisdiction. They are created for the express purpose of exercising Federal jurisdiction. Neither the Parliament of the Commonwealth nor the legislatures of the States can give them any other jurisdiction. With all respect to those who think that the States can do it and that the Parliament of the Commonwealth can consent to it being done, I can only say that it seemed to me to be a bizarre conclusion."

"If the sub-stratum of fact which gives rise to a matter in Federal jurisdiction cannot be effectively disposed of without the application of State law, the issues of State law are determined in the exercise of Federal jurisdiction (Philip Morris Inc v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; Stack v Coast Securities (No. 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261 ... The determination of State law issues in such circumstances is part of the 'accrued jurisdiction' of the Federal Courts. Federal Courts do not need the States, with or without the consent of the Parliament of the Commonwealth, to confer jurisdiction upon them before they can determine issues arising under their accrued jurisdiction. But the jurisdiction which the legislation in the present proceedings purports to confer upon the Federal Courts is not accrued Federal jurisdiction. It is an attempt to confer State jurisdiction in respect of controversies that fall outside the realm of Federal jurisdiction. ... Whether an issue, whose resolution depends upon the State law or the common law, is within the accrued jurisdiction of the Federal Court depends upon whether it is part of a 'matter' arising under s.75 or s.76 of The Constitution. To be part of that 'matter' it must be part of a single controversy. And as the court said in Fencott v Muller, that 'depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. As the court went on to say in that case, 'in the end, it is a matter of impression and of practical judgment whether a non-Federal claim and a Federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter'."

162. The observations made by McHugh J in Wakim (at 856) apply in the present proceeding insofar as the issues can be gleaned from the pleadings and various interlocutory affidavits. In the McNally and Darvall applications in Wakim the High Court dismissed the applications on the ground that the applicants had failed to show that the cases did not fall within the accrued jurisdiction of the Federal Court. In McNally and Darvall the claim against the Official Trustee was based on a Federal statute. The claims against the solicitors and the barrister were based on the common law. McHugh J observed (at 836) that such differences might point strongly against the applications being a "matter". The learned judge noted that there was nevertheless a single controversy and therefore a "matter" for the purposes of Chapter III of The Constitution where all the claims arose out of "a common sub-stratum of facts". (See also Phillip Morris Inc v Adam P. Brown Male Fashions Pty Ltd, supra at 512).

165. In considering the same issue Gummow and Hayne JJ (and with whom Gleeson CJ and Gaudron J concurred) observed (at 869):

"The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim. ... In Fencott it was said that: 'In the end, it is a matter of impression and of practical judgment ... ' The references to 'impression' and 'practical judgment' cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy 'depends on what the parties have done, the relationships between them or among them and the laws which attach rights or liabilities to their conduct and relationships' (Philip Morris). There is but a single matter if differing claims arise out of 'common transactions and facts' or 'a common sub-stratum of facts' (Philip Morris) notwithstanding that the facts upon which the claims depend 'do not wholly coincide' (Fencott). Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter".

169. A particular analysis is required following the judgment of the High Court in Wakim and, in particular, the observations of McHugh J and Gummow and Hayne JJ as to whether there is accrued jurisdiction. There is limited evidence before me concerning the claims in the proceeding and hence I must determine the matter largely on the basis of the current pleadings and affidavits filed for a different interlocutory purpose. Here the plaintiffs claim breach of contract, and breach of equitable duties against the defendants arising out of the Bureau Services Agreement. I will refer to the Computershare claim as "the non-federal claim". The Perpetual defendants attack the very agreement relied upon by the plaintiff and allege that if there was any agreement it was null and void under Federal law. I will refer to the first and second defendants' claim as "the federal claim". On the basis of the pleadings and the affidavits I am able to form the impression and reach the practical judgment that the non-federal claim and the federal claim fall within one and the same controversy and are within the ambit of a matter for the purposes of Chapter III of The Constitution because the claims arise from a common transaction and a common "sub-stratum of facts". Furthermore, bearing in mind the observations of Gummow and Hayne JJ in Wakim (at 869) if the plaintiffs' claim and the defendants' claim were tried in different courts, there could be conflict in findings on issues common to the two claims. In addition, I consider it is apparent that both claims are properly joined in the one proceeding. I conclude the Computershare claim and the Perpetual claim both fall within the same controversy. As a result, the Federal Court has jurisdiction under the Trade Tractices Act to hear and determine the claims in the defence and the counter claim concerning conduct contrary to Part IV of that Act and the other claims in the proceeding fall within the Federal Court's accrued jurisdiction'.[5]

172. I adopted the same approach in Matland Holdings Ptv Ltd v NTZ Pty Ltd (unreported judgment 7 September 1999) [1999] VSC 333.

175. I observe, further, that it is questionable whether any properly constituted proceeding which included a "special federal matter" could contain a state matter not within the accrued jurisdiction given the extensive nature of the accrued jurisdiction endorsed by the majority in Re Wakim.

178. It is to be observed that on 11 December 1992[6], the operation of s.6 of the Commonwealth Act, as amended to include the current "special reasons" requirement (s.6(3)), commenced. Previously, s.6 provided:

"(2) The Supreme Court of a State or Territory shall not make an order under sub-section (1) that the court determine a proceeding unless it appears to that Supreme Court that, by reason of the particular circumstances of the case -

(a) it is not appropriate that the proceeding be transferred to the Federal Court; and

(b) it is appropriate that that Supreme Court determine the proceeding."

185. The second reading speech in the House of Representatives concerning the 1992 amendments to s.6 contemplates "special reasons" as meaning "exceptional cases" or "exceptional circumstances". It contained (at p.2449) the following statement:

"Amendments are to be made to the jurisdiction of Courts (Cross-vesting) Act 1987 in relation to special Federal matters. These are matters arising under Federal law which the Cross-vesting Act requires, save in exceptional cases, to be heard in Federal rather than State courts. These amendments have been considered and approved by the Standing Committee of Attorneys-General. States and Territories will shortly be enacting complementary amendments to their cross- vesting legislation ... ... The amendments to be made by the Bill will ensure that where proceedings involving a special Federal matter come before a State court, that court will have regard to the general policy that special Federal matters be heard by a Federal court. It will only be in exceptional circumstances that a State court will decide not to transfer a special Federal matter to a Federal court The Bill make it clear that exceptional circumstances do not include the convenience of the parties".

190. The second reading speech in the Senate (at pp. 5 and 6) includes a similar statement. The explanatory memorandum circulated by the Attorney-General (at xviii) in relation to the amendments, stated:

"Section 6 of the jurisdiction of Courts (Cross-vesting) Act currently provides that a State or Territory, Supreme Court shall transfer a proceeding in which a special federal matter arises to the Federal Court unless the Supreme Court is satisfied that it is both not appropriate that the proceedings be transferred and that it is appropriate that the proceedings be heard by the Supreme Court. In addition, the Commonwealth Attorney-General is to be notified of the proceedings. The Attorney-General can require the transfer of the proceedings. New sub-sections 6(1) and (3) will require the State or Territory Supreme Court to transfer proceedings involving special federal matters unless the Court is satisfied that there are special reasons for the Court to hear the matter in the particular circumstances of the case. The convenience of the parties will not be a reason justifying the non-transfer of proceedings."

194. The relevant provisions of the State Act substantially reflect those of the Commonwealth Act. Prior to April 1995, the relevant wording of s.6 of the State Act also substantially reflected the pre 1992 wording of the Commonwealth Act. In April 1995, the State Act was amended[7] to introduce the present wording as to "special reasons" in s.6(3). It is clear from the second reading speech concerning the amendments in the Legislative Assembly that the requirement for "special reasons" (for the Supreme Court not to cross-vest a "special federal matter") is a "stricter test" than the former appropriate/inappropriate test.

197. In the second reading speech, the Attorney-General stated:

"The scheme makes specific provision for 'special federal matters' that arise under certain provisions of federal legislation. If commenced in a supreme court, these matters should normally be transferred to the appropriate federal court. The amendments to the Jurisdiction of Courts (Cross-Vesting) Act 1987 will do three things: require the Supreme Court to transfer 'special federal matters' unless satisfied that there are special reasons which justify the Supreme Court determining the proceedings - this is a stricter test than that which currently applies..."

201. Under s.6 of the cross-vesting legislation, if a "special federal matter" arises for determination in a proceeding pending in the Supreme Court of a State or Territory, the Court must transfer the proceeding to the Federal Court unless it makes an order that the proceeding be determined by the Supreme Court. The Supreme Court may make such an order if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding, other than reasons relevant to the convenience of the parties. The definition of "special federal matter" in s.3 includes a matter arising under Part IV of the Trade Practices Act. The reference to "matter" in this definition bears its constitutional meaning (as used in Chapter III of The Constitution), extending to the entire justiciable controversy of which the Trade Practices Act claim forms part.[8] In Re Wakim the High Court held that the Cross-vesting Act (among other legislation) is invalid insofar as it confers jurisdiction in State matters (i.e. matters falling outside ss.75 and 76 of The Constitution) on federal courts, or consents to such a conferral. Accordingly, s.9(2) of the Cross-vesting Act is invalid insofar as it purports to confer jurisdiction under State laws on the Federal Court and the Family Court, or to consent to such a conferral. Similarly, s.4(1) of each of the State Cross-vesting Acts is invalid or ineffective. The effect of such invalidity on the remaining provisions of the Commonwealth or State cross-vesting legislation is to be determined by the application of principles relating to the severance and reading down of invalid legislative provisions.

204. In the light of the decision in Re Wakim, s.6 cannot apply so as to require the transfer of a proceeding that is not within the jurisdiction, including any accrued jurisdiction, of the Federal Court. The policy implicit in s.6, in its present form, is that the entire proceeding should be determined by one court. However, s.6 can be read down so as to apply validly to proceedings that are within the jurisdiction, including any accrued jurisdiction, of the Federal Court. Again, I adopted this approach in Matland Holdings Pty Ltd v NTZ Pty Ltd, supra, para 27.

207. Contrary to the submissions by Computershare the 'foundation' for s.6 of the cross-vesting legislation is not the conferral of jurisdiction in State matters on federal courts purportedly effected by s.9(2) of the cross-vesting legislation (in conjunction with s.4(1) of each of the State cross-vesting Acts). Such construction is based on three grounds. First, insofar as the proceeding pending in this Court includes a 'special federal matter', that proceeding involves the exercise of federal jurisdiction conferred on the Supreme Court by Commonwealth legislation.[9] Section 6 is a condition imposed on the investiture and exercise of this federal jurisdiction.[10] Second, s.6 is capable of applying to proceedings that are wholly within federal jurisdiction, including any accrued jurisdiction, quite independently of the purported conferral on the Federal Court of jurisdiction with respect to state matters. Indeed, the proceeding to which s.6 applies may consist entirely of a 'special federal matter'. Third, the jurisdiction of the Federal Court with respect to the "special federal matter" involved in the present proceeding is not conferred by any provision of the Cross-vesting Act. Such jurisdiction is conferred by s.86 of the Trade Practices Act.

210. It is incorrect therefore to assert as Computershare does that s.6 is interdependent or "inextricably interwoven" with the provisions of the cross-vesting legislation that were held invalid in Re Wakim. On the contrary, on three grounds, s.6 can operate independently of the provisions which invalidly confer or consent to the conferral of state jurisdiction on the Federal Court. At the outset those invalid provisions can be severed from the balance of the cross-vesting legislation. Thereafter, s.6 should not be construed in a manner that would take the provision beyond constitutional power.[11] Ultimately, to the extent that the application of s.6 to any particular proceedings would be beyond power, the section can be read down so as not to apply to those proceedings. At most s.6 is invalid only to the extent that it applies to proceedings which include claims that do not form part of a matter over which the Federal Court can be given jurisdiction.

213. Three observations can be made of the cross-vesting scheme. First, the provisions of the cross-vesting legislation do not indicate a legislative intention that the Act, or section 6 of the Act, 'was intended to operate fully and completely according to its terms, or not at all'.[12] Section 15 of the cross-vesting legislation indicates the Parliament's general intention that the Act is to be upheld as valid to the extent to which it is not in excess of Commonwealth legislative power.[13] Further, s.16(4) specifically provides a mechanism to address the consequences of any partial invalidity of the cross-vesting legislation. Second, the cross-vesting legislation reveals a test or standard by reference to which the general words of s.6 (in particular, 'a proceeding that is pending in the Supreme Court of a State or Territory') can be read down so as to cover those proceedings which may be validly transferred to the Federal Court.[14] '[W]here a law is intended to operate in an area where Parliament's legislative power is subject to a clear limitation, it can be read as subject to that limitation.[15] It is not uncommon for a Commonwealth legislative provision expressed in general terms to be read down so as to exclude any applications which would contravene a constitutional limitation".[16] Third, when read down in this manner, s.6 of the cross-vesting legislation does not have a different operation or effect on the subjects to which it validly applies.[17] It simply applies in the same way to a narrower range of proceedings.[18]

216. In submitting that severance or reading down in this manner is not open, the plaintiff effectively contends that s.6 is invalid in its entirety merely because of the possibility that it might apply to a proceeding that is not entirely within federal jurisdiction (including accrued jurisdiction). On proper analysis that is an unnecessary conclusion which is contrary to the general principles of construction already considered.

219. Furthermore, it will be a relatively rare occurrence that a single proceeding in the Supreme Court will include both a special federal matter and separate, distinct or unrelated non-federal claims (as Computershare contends is the case in the present proceeding). Further, even where such a proceeding arises, it may be possible for the Supreme Court to split the non-federal claims into a separate proceeding, so that the transfer obligation imposed by s.6 of the cross-vesting legislation applies only to the balance of the proceeding involving the special federal matter.[19] However, whilst possible in my view it is an undesirable course to adopt because of the inherent risk of duplication of evidence and proceedings and the potential for inconsistent findings of fact.

222. It should be observed, also, that the jurisdiction of the Federal Court in respect of matters arising under the Trade Practices Act, and also its accrued jurisdiction when invoked, is the jurisdiction conferred by s.86(1) of that Act. In addition to the jurisdiction conferred on this Court by s.86(2) of the Trade Practices Act in respect of some matters arising under that Act, the jurisdiction of this Court in respect of all such matters is the jurisdiction conferred by s.4(1) of the Jurisdiction of Courts (Cross-Vesting) Act, such conferral of jurisdiction being subject to s.6 of that Act.

225. It is to be observed that all accrued jurisdiction of the Federal Court is federal jurisdiction. The accrued jurisdiction of the Federal Court is extensive. The identification of a single justiciable controversy may occur where there are separate proceedings and different parties and even where the controversy has proceeded through more than one court. A single controversy may arise out of a common substratum of facts although the facts upon which the claims depend do not wholly coincide. Nor need there be a federal claim against every respondent in the proceedings. If there is a risk that there could be conflicting findings made on issues common to two proceedings, if they were tried in different courts, this suggests that there is but a single controversy.[20]

228. Further, given the breadth of the accrued jurisdiction endorsed in Re Wakim, claims involving a "special federal matter" brought in the Supreme Court in compliance with the Rules of the Supreme Court as to joinder of claims and parties[21] will almost invariably fall within the accrued jurisdiction of the Federal Court. The connection between the "special federal matter" and the non-federal matter and the connection between parties required by those Rules will normally lead to the conclusion that both matters arise out of a single justiciable controversy.

231. Contrary to the plaintiff's submissions, the amended s.6 (as amended by the Jurisdiction of Courts Amendment Act and the Federal Courts (Consequential Amendments) Act is applicable to the current proceedings on its commencement. Section 6(1A) is procedural in nature. It does not affect any substantive rights but merely regulates the way in which such rights may be determined and enforced. The subsection should therefore be construed as applying to any existing proceedings at the date of its commencement without any inconsistency with the general rule of construction that statutory provisions affecting substantive rights are ordinarily presumed not to operate retrospectively.[22] Second, the distinction between substantive and procedural provisions has been described as a distinction between provisions that modify substantive rights and liabilities and provisions that deal with the pursuit of remedies.[23] Section 6 falls into the latter category. A party to a proceeding involving a special federal matter does not have a substantive right to have that proceeding heard and determined by a State Supreme Court in which federal jurisdiction has been invested.[24] The operation of s.6 does not affect the substantive rights or liabilities at issue in the proceeding. If the proceeding is transferred to the Federal Court, the parties 'will have the same opportunities of endeavouring to establish the same rights and liabilities as they might before the Supreme Court.[25]

234. The amendments to s.6 effected by the Jurisdiction of Courts Amendment Act remove any constitutional objection raised by the plaintiff in the present case. Thus, once the amendments commenced, the question of the constitutional validity of s.6 in its unamended form became an academic question.

237. The intended operation of s.6 of the Jurisdiction of Courts (Cross-vesting) Act (Vic) was amended so as to put its validity beyond doubt. Sub-section (1) of s.24 of the Federal Courts (Consequential Amendments) Act repeals s.4(1) and s.4(2) of the Jurisdiction of Courts (Cross-vesting) Act (Vic) which were held to be invalid by the High Court in Re Wakim. Sub-section (8) of s.24 of the Federal Courts (Consequential Amendments) Act inserts sub-section (IA) into s.6 of the Jurisdiction of Courts (Cross-vesting) Act. Sub-section (IA) of s.6 relevantly provides:

"However, the court must only transfer so much of the proceeding as is, in the opinion of the court, within the jurisdiction (including the accrued jurisdiction) of the Federal Court ... ".

241. As sub-section (1A) affects only the forum in which the parties' substantive rights are to be enforced, it is procedural in character. Upon commencement it had retrospective operation so as to be applicable to the present proceeding.[26]

244. Section 15 of the Jurisdiction of Courts (Cross-vesting) Act (Vic) prescribes that the Act it is to be construed so as not to exceed the legislative power of the State of Victoria. It provides:

"This Act shall be read and construed so as not to exceed the legislative power of the State, to the intent that if this Act would, but for this section, have been construed as being in excess of that power, it shall nevertheless be valid to the extent to which it is not in excess of that power."

248. Section 6(1) of the Interpretation of Legislation Act 1984 (Vic) is to a similar effect to s.15 of the Jurisdiction of Courts (Cross-vesting) Act. It provides:

"Every Act shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of the State of Victoria, to the intent that where a provision of an Act, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is not in excess of that power and the remainder of the Act and the application of that provision to other persons, subject-matters or circumstances shall not be affected."

252. Section 15 of the Jurisdiction of Courts (Cross-Vesting) Act (Cth) provides that the Act is to be construed subject to The Constitution and so as not to exceed the legislative power of the Commonwealth. It provides:

"This Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that if this Act would, but for this section, have been construed as being in excess of that power, it shall nevertheless be valid to the extent to which it is not in excess of that power."

256. Section 15A of the Acts Interpretation Act 1901 is also relevant. It provides:

"Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power."

260. It is plain that the Victorian Parliament, by repealing those parts of the Jurisdiction of Courts (Cross-vesting) Act (Vic) which were held to be invalid and by limiting the operation of s.6, intends that the valid provisions of that Act will continue to operate notwithstanding the severance and repeal of the invalid provisions. Thus the decision of the High Court in Re Wakim does not bring about the result that the provisions not under challenge in that case must be held to be invalid. The invalid provisions are plainly severable and the later legislation confirms this proposition. The manifest Parliamentary intention is for the law to have the same operation upon the subjects of power as it was always intended to have save for those provisions held to be invalid.[27] Likewise the Commonwealth Parliament, by repealing those parts of the Jurisdiction of Courts (Cross-Vesting) Act (Cth) which were held to be invalid and by clarifying the operation of s.6 intends that the valid provisions will continue to operate notwithstanding the severance and repeal of the invalid provisions.

263. The enactment and operation of the Federal Courts (Consequential Amendment) Act can be considered by this Court as confirmation that the restricted construction prescribed by s.15 of the Jurisdiction of Courts (Cross-vesting) Act (Vic) and/or by s.6(1) of the Interpretation of Legislation Act 1984 (Vic) is applicable to s.6 of the Jurisdiction of Courts (Cross-vesting) Act (Vic) as currently in operation. Equally, the enactment and operation of the Jurisdiction of Courts Legislation Amendment Act can be considered by this Court as confirmation that the restricted construction prescribed by s.15 of the Jurisdiction of Courts (Cross-Vesting) Act and/or by s.15A of the Acts Interpretation Act 1901 is applicable to s.6 of the Jurisdiction of Courts (Cross-Vesting) Act as currently in operation. In other words, s.6(1) of the Jurisdiction of Courts (Cross-vesting) Act (Vic) and s.6 of the Jurisdiction of Courts (Cross-vesting) Act (Cth) are to be construed as not permitting the transfer of matters to the Federal Court which will require the exercise of State judicial power. The validity of those provisions should be upheld.

266. It follows that Computershare fails on is invalidity argument.

271. It was submitted that this court should be satisfied that there are "special reasons" peculiar to this case for the proceeding to be determined by it and, accordingly, should order under s.6(3) that the proceeding be determined by it. These "special reasons" were said to be other than reasons relevant to the convenience of the parties. Computershare relied upon two reasons. First, the present case is a proceeding with state matters not within the Federal Court's accrued jurisdiction. Second, various other discretionary factors individually and cumulatively amount to special reasons for this court to order that the proceeding be determined by it.

274. In relation to the first reason, Computershare submitted that, in this litigation, there are state and federal matters that are not a single justiciable controversy. If that is correct then the Federal Court does not have jurisdiction in the whole matter. This, it was said, is a "special reason" for the purposes of s.6(3) for the Supreme Court to order that the proceeding be determined by it. If s.6(1) is still valid, s.6(3) should be construed in a way that would require the transferring court to inquire into issues such as competence or jurisdiction (as opposed to the merits of a case): see Re Williams; Ex parte Oates (1997) 140 FLR 124 at 127.

277. The state of the law on the Federal Court's accrued jurisdiction is summarised by Gummow and Hayne JJ (with whom Gleeson CJ and Gaudron J agreed) in Re Wakim as follows:

"It must now be regarded as established that the jurisdiction of a federal court having jurisdiction in a matter arising under a law made by the Parliament is not restricted to the determination of the federal claim or cause of action in the proceeding, but extend[s] beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part.[28] In Stack v Coast Securities (No 9) Pty Ltd the majority said:[29] 'In this, as in other cases, the recurrent problem is to identify what it is that falls within the Federal Court's accrued jurisdiction. The majority judgment in Fencott v Muller provides this assistance in reaching an answer: 'What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter'."

281. Further in their joint judgment Gummow and Hayne JJ referred to identification of the justiciable issue and of impression and practical judgment.

284. Computershare urged that the references to "impression" and "practical judgment" cannot be understood as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question has to be decided on limited information. But the question is not at large, hence, determining what is a single controversy "depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and a relationships"[30]. There is but a single matter if different claims arise out of "common transactions and facts" or "a common substratum of facts"[31], notwithstanding that the facts upon which the claims depend "do not wholly coincide.[32] So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other,[33] as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Computershare submitted that conversely, claims which are "completely disparate"[34], "completely separate and distinct"[35] or "distinct and unrelated"[36] are not part of the same matter. In the majority judgment in Fencott it was stated:

"[141] Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter."

288. Having regard to these legal principles, Computershare submitted that this case involves proceedings with state matters not within the Federal Court's accrued jurisdiction. In order to make good this submission Computershare referred to the pleadings in the two Supreme Court proceedings that relate to the Bureau Services Agreement being the present proceedings and the other proceeding. Computerhsare highlighted the following:

(1) In this proceeding the statement of claim concerns breach of contract and equitable obligations of confidence. These are state matters that, by themselves, are not within the jurisdiction of the Federal Court. On the facts pleaded, the Plaintiff seeks declarations:

(a) That there has been a breach of the confidentiality clause of the Bureau Services Agreement, further or alternatively of an equitable obligation owed by the first defendant to the plaintiff;

(b) that there have been breaches by the first defendant of a best endeavours clause and reasonable efforts clause of the agreement;

(c) that the said breaches are material breaches and entitle the plaintiff to give notice to the Perpetual interests of the right of Computershare to terminate the Bureau Services Agreement at any time with immediate effect;

(d) that the implementation of a joint venture agreement between the Perpetual interests and the Australian Stock Exchange to takeover the business operations of Perpetual Registrars will be a change in control in breach of the Bureau Services Agreement.

295. (In the statement of claim it is also alleged that the third defendant, Morris, obtained confidential information which, unless restrained, he will use other than for the purposes of the Bureau Services agreement. Injunctive relief is sought against all Defendants to restrain them accessing or making any use of confidential information other than for the purposes of the Bureau Services Agreement.)

(2) The defence of the third defendant, Morris, is confined to the construction of the contract and the issue of its breach and also confidentiality obligations in equity, all of which are matters not by themselves within the jurisdiction of the Federal Court. In summary, the third defendant, Morris, denies the allegations of Computershare in so far as they relate to him. Further, he positively pleads that the information he had access to was not confidential information for the purposes of the Bureau Services Agreement or in equity. Alternatively, even if the information is confidential, the third defendant pleads that there was no unlawful breach of confidence.

(3) The defence of the first and second defendants, the Perpetual interests, for the most part, is also confined to these same matters that are not by themselves within the Jurisdiction of the Federal Court. ie the construction of the contract and its breach and equitable breach of confidence. It is only the final section of the defence that purports to raise Part IV of the Trade Practices Act.

(4) The fact of the other proceeding where the matters raised are not by themselves matters within the jurisdiction of the Federal Court. In the other proceeding Computershare claims from the Perpetual interests:

(a) An order for rectification of the Bureau Services Agreement;

(b) $737,550.44 for unpaid charges due under the agreement, alternatively for quantum meruit;

(c) $26,568.58 for other unpaid charges due under a separate agreement;

(d) $235,395.30 for additional unpaid charges due under the agreement.

301. Computershare acknowledged that, at least in respect of the counterclaim, that Trade Practices Act Part IV pleadings are "special federal matters" for the purposes of the cross-vesting scheme. However, it submitted that the plaintiff's statement of claim, most of the defences and also the other proceeding are State matters. It was submitted that when these matters are considered together there are State matters that are "completely disparate"[37], "completely separate and distinct"[38] or distinct and unrelated[39], to the special federal matters. Accordingly, it was submitted the Federal Court does not have jurisdiction to hear and determine the whole matter. Consequently, it was said this is a "special reason" under s.6(3) for this court to order that the proceeding be determined by it and not transfer the proceeding to the Federal Court.

304. Computershare submitted that, further, various other discretionary factors individually and cumulatively amount to "special reasons" for this court to order under s.6(3) that the proceeding be determined by it. First, this court should still consider when exercising its discretion under s.6(3) the probability or chance that the Plaintiffs concerns may ultimately be correct. Upon a full examination of the facts of the case the Federal Court might reach the conclusion that there are state matters in the proceeding not within its jurisdiction. Gummow and Hayne M (Gleeson CJ and Gaudron J agreed) in Re Wakim stated:

"... Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large."

308. Second, it was submitted that even if the plaintiff can only persuade this Court that prima facie the present case is a proceeding with state matters not within the Federal Court's accrued jurisdiction then that itself amounts to serious prejudice to the Plaintiff if the proceeding is transferred to the Federal Court.

311. Hence it was argued on these two grounds that if s.6 is still valid, the Court should order that the proceedings be determined in the Supreme Court.

314. Virtually all these matters were considered already with respect to the invalidity argument. I consider that there are no special reasons why this proceeding (and for that matter) the other proceeding ought remain with this court. It is to be observed that the Preamble to the Commonwealth Act makes it clear that the objects or purposes of the Act include ensuring that Part IV matters under the Trade Practices Act are determined in the Federal Court and providing a mechanism for the transfer of proceedings involving such matters to the Federal Court.

317. Even under the wording of the cross-vesting legislation, there was a high threshold of satisfaction before a Supreme Court should determine not to cross-vest a proceeding. In NEC Information Systems Australia Pty Ltd v Iveson[40] at 268, Black CJ, Lockhart and Gummow JJ stated:

"The effect of subs (2) has been described (Griffith QC, Rose and Gageler, 'Further Aspects of the Cross-vesting Scheme' (1988) 62 ALJ 1016 at 10.21) as follows.. 'Implicit in this provision is a requirement for a high threshold of satisfaction before a State court determines not to transfer a proceeding to the Federal Court' The importance given by the parliament to the observance of the criteria in subs (2) is emphasised by the reservation by subs (6) of the Jurisdiction of the Supreme Court to grant interlocutory relief which is so urgent that it is in the interests justice to do so"

321. In Nilsen Industrial Electronics Pty Ltd v National Semiconductor Corporation[41], Ormiston J (as he then was) considered the effect of the previous wording of the Commonwealth Act in circumstances in which a defendant claimed in reply that a contract was an "exclusionary provision" and so was unenforceable because of s.45 of the Trade Practices Act (similar, and more substantial, issues exist in this proceeding). His Honour held that:

"The disputes raised on the pleadings are of a kind commonly tried in that court [the Federal Court] and so I cannot conclude that it is inappropriate. There will be no obvious additional delay which will face the parties to the proceeding, nor any other serious inconvenience to them, even if that be relevant. Nor from my understanding of the action, is it practicable to hear the plaintiffs claim before and separately from the third party claims, even if I were entitled to defer consideration of this question or to transfer only the third party proceedings".

325. More recent cases dealing with the "special reasons" wording recognise the intention of the legislatures that there is a stricter test for a Court to determine not to cross-vest a special federal matter. In Pridmore v Magenta Nominees Pty Ltd[42] Scott J of the Supreme Court of Western Australia considered that, where a matter was appropriate for transfer to the Federal Court under the former wording of section 6 of the Commonwealth Act, "The position is strengthened by reason of the amendment and the need for the demonstration of 'special reasons'." In Re An Application for WMs of Certiorari and Mandamus against the Honourable Daryl Williams,[43] Anderson J of the Supreme Court of Western Australia also had occasion to consider the issue of "special reasons" and considered that the court:

" ... should not make an order under s.6(3) that the proceedings be determined by this Court unless I have a high degree of satisfaction that there are special reasons for doing so"; it was not " ... possible to construe s.6(3) in a war that would require the transferring court to inquire at all into the merits of the proceeding (as distinct perhaps from its competence) in a search for 'special reasons'. To do so would be to retain and to exercise jurisdiction as to the merits, contrary to the main theme of s.6, which is that special federal matters are for the Federal Court to determine".

329. The decision in Re Wakim does not lower the hurdle faced by a party endeavouring to satisfy the Court that there are "special reasons" as to why a proceeding should not be cross-vested. In Telstra Corporation Ltd v CXA Communications Ltd[44], Chernov J (as he then was) had occasion to consider the present Commonwealth Act and whether "special issues" existed in circumstances in which Part IV of the Trade Practices Act issues were raised by way of defence. His Honour initially was minded to order that the proceeding not be cross-vested to the Federal Court. After receiving submissions from the Attorney-General, His Honour transferred the proceeding. Chernov J noted the principal factors submitted by the Attorney-General as to why there were no "special reasons" for the Supreme Court to retain the proceeding as follows:

"(a) The Federal Court has created a list of specialist judges who hear and determine Part 1V cases. This, it is said, is likely to increase the prospect of establishing a degree of uniformity in the interpretation of this special legislation which operates nationally. This would be best achieved generally by Part IV of the Trade Practices Act 1974 (Cth) being considered and its meaning determined by, judges specialising in the matter. (b) The scheme of the legislation is that, generally, the Federal Court is to hear "special Federal matters" unless there are special reasons applicable to the particular proceeding justifying its retention in the State Court. (c) The principal dispute between the parties will revolve around the 'special Federal matter','notwithstanding that general law claims are also raised by the parties. The proceeding it is said, is not one where the Part IV defence has been brought in as an afterthought, nor can its bona fide be properly attacked.

(d) Hanimex Pty Ltd v Foster (unreported) Debelle J, 26 March 1996, in which His Honour refused to cross vest the proceeding before him notwithstanding that it raised a "special Federal matter" can be readily distinguished from the present case because there, the question was not aired until approximately two years after the issue of proceedings, whereas here, the point was raised shortly after the proceeding was issued".

These considerations apply with their full force to the present case.

"In my view, the factor which is of significance in the resolution of the present question, is that the Federal Court is in a position to provide a means whereby a degree of uniformity in the interpretation of Part IV of the Trade Practices Act 1974 (Cth) could be achieved on a national basis. It is, I think, desirable to facilitate this object. It is in this context that the question., 'What are the special reasons why this court should deal with the matter', is to be considered." ... The question of whether there are any 'special reasons' why this Court should deal with the proceeding is to be considered against the background of the statutory intention to which I referred and the circumstances surrounding this case, including the policy of the Federal Court to provide a degree of uniformity in the interpretation of the relevant legislation." ... I take 'special reasons' to mean reasons which are peculiar to the case and not general reasons of convenience, a matter to which the legislation itself refers. ... In my view, in order for the reasons to be 'special', the circumstances of the case must be such as to take it out of the mainstream of the legislative intent that such cases beheard in the Federal Court."

341. I am satisfied that I should adopt the same approach. The principal factors submitted by the Attorney-General in Telstra also apply in this proceeding, and the Court ought take the approach adopted by Chernov J. in Telstra**.** The trade practices issues are substantial and have been raised bona fide at an early stage in the proceeding. They were foreshadowed in correspondence between the parties before the plaintiff instituted this proceeding. They go to the heart of the plaintiff's past and continuing conduct, including the plaintiff's claims in this proceeding. The threshold is high: NEC v Iveson. There must be at least "a high degree of satisfaction that there are special reasons" for this Court to order that the proceeding be retained in this Court. The onus is on the person seeking to retain this proceeding in the Supreme Court to satisfy the Court that there are "special reasons". That onus has not been and cannot be discharged by Computershare. This is not an "exceptional case" nor are there "exceptional circumstances" of the type contemplated in the second reading speeches to the legislation. Furthermore, to use the words of Chernov J in Telstra**,** this proceeding is not "out of the mainstream of the legislative intent that such cases be heard in the Federal Court".

344. In Matland Holdings Pty Ltd v NTZ Pty Ltd (after the judgment in Re Wakim_),_ the defendants, in their defence and counterclaim, alleged that, pursuant to the agreement relied upon by the plaintiffs, they were required to purchase petroleum products exclusively from the second plaintiff, that there were contraventions of ss.45, 45B, 45C and 47 of the Trade Practices Act, and that the agreement was null and void. As already stated, on the basis of the pleadings I formed the "impression" and reached the "practical judgment"[45] that the non-federal claim and the federal claim fell within one and the same controversy and arose from a common transaction and a common "sub-stratum of facts"[46]. I was satisfied that the pleadings invoked the accrued jurisdiction of the Federal Court and that there was no obstacle to the transfer of the proceeding to the Federal Court arising from the judgment in Re Wakim and determined to transfer the proceeding.

347. There is no dispute that the Part IV matters raised in the defence and in the counterclaim in the present proceeding involve a special federal matter. The Part IV matters relate to and are based upon significant parts of the Bureau Services Agreement, the circumstances in which it was entered into, the construction and effect of the Bureau Services Agreement as alleged by the plaintiff, the enforceability of its terms, the issues as to what constitutes confidential information under the Bureau Services Agreement and matters in equity and the permitted use of such information. The claims of Computershare rely in large measure upon its contentions as to the effect of the Bureau Services Agreement. It would be a peculiar result if the plaintiff's conduct (which allegedly contravenes Part IV of the Trade Practices Act) were not regarded as falling within the same "matter" in the constitutional sense, as the "special federal matter" in which the Part IV claims are made. The "matter" in which the Part IV claim is made includes not only the conduct of the plaintiff in entering into the Bureau Services Agreement but also giving effect to it by seeking to enforce its provisions in this proceeding.

350. I consider that there can be no doubt in this proceeding that there is a "common sub-stratum of fact" and "common transactions and facts" such that all the non Trade Practices Act claims fall within the accrued jurisdiction of the Federal Court. As all of the claims raised in the proceeding fall within the express or accrued jurisdiction of the Federal Court, the fact that some claims are based on state law does not constitute "special reasons" as to why the whole or any part of this proceeding should be heard in the Supreme Court and not transferred to the Federal Court. It is not possible, nor is it practicable, to deal first, or separately, with any aspect of the plaintiff's claim having regard to the Trade Practices Act issues raised in the defence and counterclaim. Those issues are integral and directly relevant to any disclosure and/or use of information which, in any event, the defendants contend is not confidential. I consider that if severance of any issues was attempted and dealt with by different courts the cost of running separate proceedings would dramatically increase; the administration of separate proceedings would become gravely complicated; there would be duplication of discovery, evidence and the calling of witnesses; the duplication would result in an overall increase in court time; there would be an unavoidable overlap of issues; issues of credit would militate against any separation of issues; the risk of conflicting findings made on one or more issues common to the two proceedings would be unacceptable; and estoppel issues would be likely. Finally, any issues sought to be separated could not be finally resolved until after determination of the Trade Practices Act issues.

353. The only remaining part of the arguments of Computershare that have any potential compulsion is concerned with the outcome if the present proceeding is transferred to the Federal Court but the other proceeding remains within this court. It was submitted by Computershare that there was no basis for transferring the other proceeding to the Federal Court as it did not raise on any basis a matter that fell within the accrued jurisdiction of that court. Nevertheless, in my view it is undesirable that the other proceeding effectively be severed. A better course would be for the other proceeding to be considered by the Federal Court. I am satisfied that the appropriate way to deal with this aspect is for this court to order of its own motion that the present proceeding and the other proceeding be consolidated and determined at the same time. I consider that once consolidated, for the reasons already stated, there are no special reasons to preclude transferring the consolidated proceeding to the Federal Court.

[1] See Computershare Ltd v Perpetual Registrars Ltd and Ors (No 1) (2000) VSC 139.

[2] House of Representatives, Hansard, 22 October 1986 at 2556

[3] See the preamble to the cross-vesting legislation.

"WHEREAS inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable:

(a) to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court;

(b) to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and

(c) if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court."

[4] Section 9(2) of the Commonwealth Act which purported to do so was held invalid in Re Wakim.

[5] See Re Wakim per McHugh J and per Gummow and Hayne JJ.

[6] The amendments were introduced pursuant to section 4 (and Schedule) of the Law and Justice legislation Amendment Act (No. 3) 1992.

[7] Pursuant to the Courts (General Amendment) Act 1995.

[8] See Re Wakim per Gummow and Hayne JJ (with whom Gleeson CJ and Gaudron J agreed).

[9] In the present proceeding, federal jurisdiction is conferred on this Court with respect to matters arising under Part IV of the Trade Practices Act by s.4(1)(c) of the Cross-vesting Act: see Re Wilcox; ex parte Venture Industries Pty Ltd (1996) 137 ALR 47; Collings Construction Co Pty Ltd v ACCC (1998) 43 NSWLR 131.

[10] NEC Information Systems Australia Pty Ltd v Iveson (1992) 36 FCR 258 at 268 per Black CJ, Lockhart and Gummow JJ. For this reason, s.6 is supported by the legislative power conferred by s.77(iii) of The Constitution, or if necessary the power to make laws with respect to matters incidental to the execution of any power vested in the Federal Judicature (s.51(xxxix)).

[11] See s.15A of the Acts Interpretation Act 1901 (Cth), and also see e.g. Davies and Jones v Western Australia [1904] HCA 46; (1904) 2 CLR 29, at 43 per Griffith CJ; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 14 per Mason CJ; Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc [1992] FCA 630; (1992) 38 FCR 1 at 43 per Hill J (Foster J agreeing on this point).

[12] Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 108 per Latham CJ;

[13] See also s.15A of the Acts Interpretation Act 1901 (Cth); Bell Group Ltd v Westpac Banking Corporation [2000] FCA 439 at para 163 per Carr J.

[14] See Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 108-111 per Latham CJ.

[15] Victoria v Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416 at 502-503 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.

[16] For example, Victoria v The Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416 at 502-503; The Queen v Hughes [2000] HCA 22 at paragraph 43 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Bell Group Ltd v Westpac Banking Corporation [2000] FCA 439 at paras 160-164, 170-171 per Carr J; cf. Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 516-520. In relation to the reading down of State legislation to avoid constitutional limitations, see Graham v Paterson [1950] HCA 9; (1950) 81 CLR 1 at 16, 20-21, 23, Cam & Sons Pty Ltd v The Chief Secretary of New South Wales [1951] HCA 59; (1951) 84 CLR 442; Carter v Potato Marketing Board [1951] HCA 60; (1951) 84 CLR 460.

[17] See Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 108-111 per Latham CJ, Victoria v The Commonwealth (Industrial Relations Act case) (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.

[18] Compare Bell Group Ltd v Westpac Banking Corporation [2000] FCA 439 at para 173.

[19] Compare, for example, rules 10.06, 34.01, and 47.04-47.05 of the Supreme Court (General Civil Procedure) Rules 1996.

[20] Re Wakim per McHugh J and per Gummow and Hayne JJ; Matland Holdings Pty Ltd v NTZ Pty Ltd [1999] VSC 333.

[21] See Order 9 of the Supreme Court (General Civil Procedure) Rules 1996.

[22] See Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267-268 per Dixon J, 277 per Williams J, 285-286 per Fullagar J; Yrttiaho v Public Curator of Queensland [1971] HCA 29; (1971) 125 CLR 228; Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 at 518-522. This is either because there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure, or because a procedural statute is ordinarily more accurately characterised as prospective in operation and effect: see Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 at 518, 524.

[23] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 286 per Fullagar J (dissenting in the result).

[24] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 per Dixon J, citing Mellish LJ in Republic of Costa Rica v Erlanger (1876) Ch D 62 at 69; Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 at 521.

[25] Dowler v Princes Securities Pty Ltd (1998) 1 SASR 578 at 582 per Sangster J.

[26] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515, 521 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ; See also Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 per Dixon J "[G]iven rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of ... [the] presumption [against retrospectivity]."

[27] See Re Dingam; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323, 348 per Dawson J.

[28] High Court footnote 158 - Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261 at 290 per Mason, Brennan and Deane JJ. See also Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570.

[29] High Court footnote 159 - [1983] HCA 36; (1983) 154 CLR 261 at 294 per Mason, Brennan and Deane JJ.

[30] footnote 164 In Re Wakim: - Fencott (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and

[31] footnote 165 In Re Wakim: - Philip Morris (1981) 148 CLR 457 at 512 per Mason J.

[32] footnote 166 In Re Wakim: - Fencott (1983) 152 CLR 570 at 607 per Mason, Murphy, Brennan and

[33] High Court footnote 167 - Philip Morris (1981) 148 CLR 457 at 512 per Mason J.

[34] High Court footnote 168 - Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 373 per Barwick CJ.

[35] High Court footnote 169 - Philip Morris (1981) 148 CLR 457 at 521 per Murphy J.

[36] High Court footnote 170 - Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 482 per Stephen, Mason, Aickin and Wilson JJ.

[37] Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 373 per Barwick CJ.

[38] Philip Morris (1981) 148 CLR 457 at 521 per Murphy J.

[39] Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; (1980) 145 CLR 457 at 482 per Stephen, Mason, Aickin and Wilson JJ.

[40] (1992) 36 FCR 258

[41] [1993] VicRp 50; (1993) 1 VR 700

[42] [1998] WASC 318 (21 October 1998) at p 9

[43] (1997) 140 FLR 124 at 127

[44] [1998] VSC 72; [1998] 146 FLR 481

[45] See Fencott v Muller (1983) 152 CLR 570 cited in Re Wakim per Hayne and Gummow JJ at 869.

[46] See also Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457.