Edensor Nominees Pty Ltd v Australian Securities & Investments Commission

"Within 21 days, or such further period as the Court may within 21 days order, Edensor Nominees Pty Ltd pay to the Australian Securities and Investments Commission the sum of $28.5 million for payment of that sum by the Commission, on a pro-rata basis, to the shareholders in Great Central Mines Ltd (other than the respondents); (a) who have accepted the said takeover offers of Yandal Gold Pty Ltd and have not exercised their entitlement under these orders to withdraw that acceptance; (b) who have had their shares acquired by Yandal Gold Pty Ltd under s 703(2) of the Corporations Law and have not avoided the acquisition pursuant to these orders; (c) who have had their shares compulsorily acquired under s 701(5) and have not avoided the acquisition pursuant to these orders."

Edensor contended that the $28.5 million should now be repaid to it.

3 His Honour also made self executing orders in the event that Edensor defaulted in the order for payment for the disposal of all the shares which Yandal Gold had acquired and which were not retransferred, and for any net profit realised by Yandal Gold to be paid to accepting shareholders who had elected not to avoid their acceptances or shareholders whose shares had been compulsorily acquired but who had not sought to avoid that compulsory acquisition. 4 The order for the payment was made in purported exercise of the powers in s 737 or s 739 of the Corporations Law. On appeal, the Court has found that those powers could not be exercised by the Federal Court because the State of Victoria could not, by the Corporations (Victoria) Act 1990 (Vic), give to this Court jurisdiction to exercise the jurisdiction of the State of Victoria. It found that the exercise of powers under the Corporations Law was restricted by the definition of "court" in s 58AA of the Corporations Law to this Court when it was exercising the jurisdiction of the State of Victoria. The decision of the High Court in Re Wakim; Ex parte McNally (1999) 163 ALR 270 ("Wakim") made it clear that Victoria could not confer that jurisdiction on the Federal Court. 5 On 15 December 1999, the Federal Courts (State Jurisdiction) Act 1999 (Vic) ("the State Jurisdiction Act") came into force. Edensor contends that that Act does not operate with respect to the order for payment made by the learned primary judge. It is said that that order was not an "ineffective judgment" under the State Jurisdiction Act. 6 Section 4(1) of the State Jurisdiction Act defines an ineffective judgment as a judgment of a Federal Court in a State matter given or recorded before 15 December 1999 (the commencement of that Act: see s 2) in the purported exercise of jurisdiction purporting to have been conferred on the Federal Court by a relevant State Act. The Corporations (Victoria) Act 1990 (Vic) is a relevant State Act. It purported to confer on the Federal Court jurisdiction under the Corporations Law. The matter heard by the learned judge at first instance is one which is within the expression "State matter" in the State Jurisdiction Act. It was the contention of Edensor on appeal that the Supreme Court of Victoria was the appropriate court to have heard the proceeding at least to the extent that relief was sought under ss 737 and 739 of the Corporations Law. 7 In our judgment, the orders of the learned judge at first instance which required Edensor to pay to ASIC $28.5 million was an ineffective judgment as that expression is used in the State Jurisdiction Act. The power to make those orders was derived, or prior to the decision in Wakim, thought then to have been derived from s 737 or s 739 of the Corporations Law. As this Court concluded, s 58AA of the Corporations Law defines "court" so as to include the Federal Court only when it is exercising the jurisdiction of Victoria. Wakim makes it clear that Victoria could not confer that jurisdiction on the Federal Court. It was that lack of jurisdiction which led this Court to conclude that the orders made by the learned judge at first instance were beyond power. The accrued jurisdiction did not carry with it power to make those orders. 8 In those circumstances, it was the fact that the Federal Court could not exercise the jurisdiction of Victoria which led to the conclusion that the order for payment was beyond power. It is clear that, when the order was made, the learned judge at first instance was purporting to exercise the jurisdiction of Victoria that was believed to have been validly conferred on the Federal Court by the Corporations (Victoria) Act 1990. In our view, these circumstances lead to the conclusion that the order for payment amounts to an ineffective judgment under the State Jurisdiction Act. 9 Section 6 of the State Jurisdiction Act seeks to preserve the rights and liabilities of all persons as if that ineffective judgment of the learned judge at first instance had been a valid judgment of the Trial Division of the Supreme Court of Victoria. Section 7(2) preserves the rights of appeal from that decision. The judgment of the learned judge at first instance is deemed to be a valid judgment of the Trial Division of the Supreme Court of Victoria. Section 10 empowers the Supreme Court of Victoria to vary, revoke, set aside, revive or suspend a right or liability imposed or affected by s 6 as if it were a right or liability validly conferred, imposed or affected by the Supreme Court of Victoria in or in relation to proceedings of the kind in or in relation to which the ineffective judgment was given or recorded. That court may vary, revoke, set aside or suspend the ineffective judgment. 10 Those provisions indicate that, subject to any party seeking leave to appeal from the decision of this Court to the High Court, the future course of these proceedings should be dealt with by the Supreme Court of Victoria, at least in respect of the order for payment. It is doubtful whether this Court now has any jurisdiction to give any directions with respect to the further disposition of the $28.5 million. Even if it had that jurisdiction, it is our view that it would be inappropriate to make any orders with respect to that payment. The orders directing the payment were purportedly made in the exercise of jurisdiction granted to the Federal Court, but as Wakim revealed that grant of jurisdiction was not effective. The State Jurisdiction Act discloses a clear intention that, in these circumstances, the ineffective judgment should be treated as a judgment of the Trial Division of the Supreme Court of Victoria and it is that court which becomes the appropriate court to deal with questions which arise out of the ineffective judgment, as if that judgment were an order of that court, and if there is an appeal from that order to entertain that appeal. 11 Accordingly, it is our view that this Court should not accede to the application made on behalf of Edensor that it should direct the $28.5 million to be repaid to Edensor. That is now properly a matter for the Supreme Court of Victoria. 12 The consequence of those views is that this Court should now declare that the orders made by the learned trial judge at first instance in respect of the payment of the $28.5 million were made without jurisdiction to hear and determine the claims in so far as they related to claims for relief under ss 737 or 739 of the Corporations Law. That declaration may constitute a "relevant order" for the purposes of s 11 of the State Jurisdiction Act enabling any party to the proceedings, if so advised, to apply to the Supreme Court of Victoria under s 11(2) for an order that the proceedings be transferred to the Supreme Court of Victoria and continue as a proceeding in that court. 13 It is our view that the order for payment is invalid for want of jurisdiction, and further that it constitutes an ineffective judgment within the meaning of s 4(1) of the State Jurisdiction Act. 14 There remains for consideration the further conduct of this appeal. 15 ASIC invited the Court to hear further argument on the power of the learned trial judge to have made those orders which the Court has determined were beyond power. In broad terms, ASIC sought to contend further that the power to make orders under ss 737 and 739 of the Corporations Law, or orders of the nature contemplated by those sections, existed because the whole matter lay within the original jurisdiction of the High Court on the basis that ASIC, as the Commonwealth, was a party to the proceedings and s 39B(1A)(a) and (c) of the Judiciary Act 1903 (Cth) empowered this Court to exercise that jurisdiction. Additionally, ASIC submitted that by reason of s 86 of the Trade Practices Act 1974 (Cth) or by reason of s 12GJ of the Australian Securities and Investments Commission Act 1989 (Cth), the Court had power to make the order for payment. However in the reasons for judgment given on 10 December 1999, the Court gave consideration to the matters argued by the parties on the question of the powers of the Court to have made orders of the kind the subject of the appeal. It would not be appropriate in those circumstances for the Court to entertain again those submissions, and perhaps different submissions, directed to the matter upon which the Court has given its decision. 16 It was argued by counsel for Normandy Mining that the Court should, notwithstanding the reason for decision, and the focus upon the order for payment, nevertheless proceed to hear and determine the other matters arising on the appeal in the exercise of the accrued jurisdiction of the Court or under the Trade Practices Act. Counsel for both Edensor and ASIC submitted that it is in the best interests of justice for the Court to now deal and make orders with respect to the order for payment. This would enable the parties to be at liberty to exercise such rights to apply for special leave to appeal to the High Court, or such other rights of appeal, as they may be advised as soon as practicable. ASIC by its counsel has indicated that it intends to apply to the High Court for special leave to appeal from the orders made following the decision given on 10 December 1999. ASIC has undertaken to pursue that application with all reasonable expedition. It regards the decision, and the orders to be made in the light of that decision and the further submissions, as having significant consequences for the administration of the National Corporations scheme. It is said that the decision precludes the Federal Court or any Federal Court from making any orders under the Corporations Law even where the Court has jurisdiction in respect of a matter. 17 In light of those submissions and that undertaking, it is the Court's view that it should accede to the submissions by Edensor and ASIC. It was put by counsel for Edensor that it was a matter of commercial urgency that the fate of the payment of $28.5 million should be resolved as soon as possible, especially if the Court were of the view (as it is) that the order for payment was an ineffective judgment under the State Jurisdiction Act. That point itself is a matter upon which Edensor has indicated that it wishes to appeal. 18 In those circumstances, it is the Court's view that it should not proceed to hear and determine the other matters outstanding. Accordingly the Court declares that this Court had no jurisdiction to hear and determine the proceeding brought by ASIC against Edensor and the second to seventh respondents to this appeal under the Corporations Law. The Court further orders, upon ASIC by its counsel undertaking to the Court that it will with all reasonable expedition: (a) make and prosecute an application to the High Court of Australia for special leave to appeal against the above declarations; (b) if special leave is granted to file and prosecute such an appeal, this appeal be stood over until a date to be fixed following the hearing and determination of that application and, if the application is granted, that appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Decision herein of the Court.

Associate: Dated: 9 March 2000 Counsel for the Appellant: P R Hayes QC with him I D Martindale

Solicitors for the Appellant: Clayton Utz

Counsel for the First Respondent: S D Rares SC with him R D Strong

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Fourth to Seventh Respondents: N J Young QC with him M C Garner

Solicitors for the Fourth to Seventh Respondents: Freehill Hollingdale & Page

Date of Hearing (via video link-up between Sydney, Melbourne and Darwin): 15 February 2000

Date of Decision: 9 March 2000