Matthews v Australian Securities & Investments Commission

REASONS FOR JUDGMENT 1 On 19 February 1999, O'Connor J, invoking the jurisdiction which it was believed that this Court had under the Corporations Law, made various orders restraining the publication of securities reports by the appellant on the Internet. The appellant breached those orders. Proceedings for contempt were taken against him which came on for hearing on 16 June 1999. The appellant pleaded guilty to the charges and Sackville J made various orders, including what was effectively a suspended sentence of two months imprisonment. 2 On 23 June 1999, a notice of appeal to the Full Court of this Court was lodged from the decision of Sackville J. The ground of appeal, in essence, was that the Federal Court had no jurisdiction to make the orders which were made on 19 February by O'Connor J and on 16 June by Sackville J. 3 The matter came before Sackville J on 15 July 1999 and his Honour came to the conclusion that the Federal Court did not have jurisdiction to entertain the proceedings at first instance insofar as they were based upon the Corporations Law. His Honour did not find that the Court lacked jurisdiction to deal with the contempt matter. Whether the Court did or did not possess that jurisdiction was the subject of the pending appeal. It would have been obviously inappropriate and, for that matter, impossible for his Honour to express a concluded view upon that question. 4 The proceedings then came before Austin J on 26 July 1999 and his Honour made various orders and declarations in relation to the rights and liabilities of the parties in connection with the judgments of O'Connor and Sackville JJ. It is not apparent to me as to the basis on which Austin J made those orders with respect to the decision of Sackville J, as at least arguably this Court has jurisdiction to deal with the contempt issue under s 31 of the Federal Court of Australia Act 1976, notwithstanding the decision of the High Court in Re Wakim; Ex parte McNally [1999] HCA 27. 5 I have before me a notice of motion filed on 5 October 1999 seeking various orders. Included amongst the orders sought is a declaration as to whether or not the appeal to the Full Court from the decision of Sackville J is competent or incompetent. Either Sackville J had jurisdiction to entertain the proceedings which were before him or he did not. If he did, then an appeal upon the basis that he did not have jurisdiction will fail. If he did not, then there is at least an available view that the Full Court has jurisdiction to quash his Honour's order on the basis that it was made without jurisdiction. But these are issues for the Full Court to determine and not for me. I do not see any possible foundation on which a single judge of this Court can declare whether or not an appeal to the Full Court is competent or otherwise. That must be a matter for the Full Court to determine and I decline to embark upon a consideration of that issue. 6 The next order which is sought is an order staying the orders of O'Connor and Sackville JJ. The only ground on which the stay is sought is the jurisdictional issue. As I read the decision of Sackville J, the appellant's contempt in this case was wilful and deliberate and he pleaded guilty to the charge of contempt which was preferred against him. Even if the original orders were made without jurisdiction so far as this Court is concerned, they could have been made by the Supreme Court. 7 Re Wakim indicates that an order although made without jurisdiction is valid until it is set aside and it does not necessarily follow from the want of jurisdiction that the order will be set aside. Given the circumstances of this contempt, which I have just recounted, I am not persuaded that it is appropriate that the operation of the orders of either O'Connor or Sackville JJ should be stayed pending the determination of this appeal. 8 The next matter which is sought in the motion is that the appellant should be given leave to file an amended notice of appeal in the form annexed to the motion. The principal matter sought to be raised by the amended notice of appeal is that it seeks to enlarge the appeal into one from a decision of the judgment of O'Connor J given on 19 February 1999 as well as an appeal from the decision of Sackville J given on 16 June 1999. 9 The appellant is out of time insofar as an entitlement to appeal from the decision of O'Connor J is concerned. As her Honour's decision involved the grant of an interlocutory injunction, leave to appeal from that decision would be required in any event. Whether an extension of time should be granted and whether leave to appeal should be granted is a matter which I have jurisdiction to determine, but as I understand the authorities I am not bound to exercise that jurisdiction. I can direct that the application be made to the Full Court if I consider that to be the more appropriate course. 10 In my view, whether or not an extension of time should be granted and whether or not leave to appeal could be granted, might involve a multitude of considerations which the Full Court would be better equipped to deal with than I at the moment. Accordingly, even if the motion had been appropriately phrased so as to seek an extension of time and leave to appeal, I would have referred the determination of those questions to the Full Court. 11 Given the form of the motion, what I propose to do, is to direct that if the appellant wishes to apply for an extension of time within which to appeal from the decision of O'Connor J given on 19 February 1999, and for leave to appeal from that decision, then a motion to that effect and any affidavits in support should be filed and served on or prior to Monday, 29 November 1999 and should be made returnable in a formal sense before Sackville J at the callover due to be held on 1 December 1999. 12 I direct that such motion be referred to the Full Court constituted to determine the appellant's appeal which was lodged on 23 June 1999. The purpose of having the motion made returnable before Sackville J is simply so that his Honour as list judge can make whatever arrangements are necessary for its reference to the Full Court. 13 Unless anybody has anything to say to the contrary I think the costs of this application should be costs in the appeal. 14 I propose to reserve the costs of this motion for determination by the Full Court. What should happen in relation to those costs might depend upon whether a motion for an extension of time and leave to appeal are filed, and if filed, the ultimate fate of those applications. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.