FRENCH CJ, KIEFEL, BELL, GAGELER AND GORDON JJ. The question in this appeal is whether the Supreme Court of Western Australia has power to make a freezing order in relation to a prospective judgment of a foreign court which would be registrable by order of the Supreme Court under the Foreign Judgments Act 1991 (Cth).
The answer is that the Supreme Court has that inherent power within the authority to adjudicate conferred on the Supreme Court by s 39(2) of the Judiciary Act 1903 (Cth). The exercise of the power is regulated by O 52A r 5 of the Supreme Court Rules, which is validly made under s 167(1)(a) of the Supreme Court Act 1935 (WA) and relevantly applied by s 79 of the Judiciary Act. There is no inconsistency with the Foreign Judgments Act.
These reasons explain that answer, after explaining the context in which the question arises.
Background to the appeal
PT Bayan Resources TBK ("Bayan") is a company incorporated in Indonesia. Bayan owns shares in Kangaroo Resources Limited ("KRL"), a company incorporated in Australia. BCBC Singapore Pte Ltd ("BCBC") is a company incorporated in Singapore.
Between them, Bayan and BCBC own all of the shares in PT Kaltim Supacoal ("KSC"), a company incorporated in Indonesia. The rights and obligations of Bayan and BCBC as shareholders in KSC are the subject of a joint venture agreement which is governed by the law of Singapore.
BCBC commenced a proceeding against Bayan in the High Court of Singapore. That proceeding remains pending. In it, BCBC claims against Bayan, amongst other things, damages for breach of the joint venture agreement.
After commencing that proceeding in the High Court of Singapore, BCBC applied ex parte to the Supreme Court of Western Australia for freezing orders against Bayan and KRL in respect of Bayan's shares in KRL. The application was made pursuant to O 52A of the Supreme Court Rules.
Within the meaning of O 52A of the Supreme Court Rules, a freezing order is an order made, upon or without notice to the respondent, for the purpose of preventing the frustration or inhibition of the Supreme Court's process by seeking to meet a danger that a judgment or prospective judgment of the Supreme Court will be wholly or partly unsatisfied. A freezing order may be an order which restrains a respondent from removing assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
Although expressed not to affect the power of the Supreme Court to make a freezing order if the Supreme Court considers it is in the interests of justice to do so, O 52A r 5 sets out criteria by reference to which the Supreme Court may make such an order. In substance, those criteria are relevantly that:
. the applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in a court outside Australia;
. there is a sufficient prospect that the other court will give judgment in favour of the applicant;
. there is a sufficient prospect that the judgment will be registered in or enforced by the Supreme Court; and
. the Supreme Court is satisfied, having regard to all the circumstances, that there is a danger that a prospective judgment will be wholly or partly unsatisfied because the assets of the prospective judgment debtor or another person are removed from Australia or from a place inside or outside Australia or disposed of, dealt with or diminished in value.
In respect of a freezing order against a person other than the prospective judgment debtor, the Supreme Court is in addition relevantly to be satisfied, having regard to all the circumstances, that the person is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the prospective judgment debtor.
The immediate result of the ex parte application made to the Supreme Court by BCBC was the making by Pritchard J of interim freezing orders against both Bayan and KRL.
Bayan and KRL soon afterwards commenced a separate proceeding against BCBC in the original jurisdiction of this Court. That separate proceeding was for declaratory relief. In it, Bayan and KRL contended that the interim freezing orders made by Pritchard J were beyond power. The separate proceeding was remitted by this Court to the Supreme Court. There it was heard by Le Miere J concurrently with BCBC's application for continuation of the interim freezing orders.
Le Miere J dismissed the remitted proceeding, discharged the interim freezing order against KRL, and continued the freezing order against Bayan. The freezing order as so continued by Le Miere J prohibited, and continues to prohibit, Bayan until further order from: transferring any of its shares in KRL to a related entity; further encumbering those shares; or in any way disposing of, dealing with or otherwise diminishing the value of those shares without first giving notification in writing to BCBC and its Australian solicitors.
Le Miere J made detailed findings of fact in relation to the continuation of the freezing order against Bayan. He found that BCBC had a good arguable case on an accrued cause of action that was justiciable in the High Court of Singapore which gave rise to a sufficient prospect that the High Court of Singapore would give a money judgment in favour of BCBC for at least $US138 million. Noting the stated intention of BCBC to register in the Supreme Court any judgment it might obtain in the High Court of Singapore and to enforce the judgment as so registered against the assets of Bayan in Australia, he found that there was a sufficient prospect that the judgment of the High Court of Singapore would be registered in or enforced by the Supreme Court. Apart from its shareholding in KRL, all of Bayan's assets were located in Indonesia. Le Miere J found that, subject to irrelevant exceptions, the law of Indonesia precludes execution of a money judgment of the High Court of Singapore. Against that background there was a real and sensible risk that the judgment of the High Court of Singapore would remain unsatisfied.
Relevant to the discharge of the interim freezing order against KRL, Le Miere J found that KRL had no control over assets of Bayan.
The Court of Appeal of the Supreme Court of Western Australia (McLure P, Buss and Murphy JJA) unanimously dismissed an appeal by Bayan from the orders of Le Miere J.
The appeal
Bayan accepts, in its appeal by special leave to this Court, that the findings of Le Miere J establish a factual foundation for the continuation of the freezing order against it in accordance with the criteria set out in O 52A r 5 of the Supreme Court Rules.
Bayan's argument is that the Supreme Court lacks power to make a freezing order in accordance with those criteria. The making of such a freezing order, Bayan argues, is beyond the inherent jurisdiction of the Supreme Court, is authorised by neither the Supreme Court Act nor the Foreign Judgments Act and moreover is inconsistent with the scheme of the Foreign Judgments Act. In its application to a prospective judgment of a foreign court, Bayan argues, O 52A r 5 of the Supreme Court Rules is authorised by neither the Supreme Court Act nor the Foreign Judgments Act and is invalid.
The various strands of Bayan's argument are best addressed in the course of a systematic examination, first of the scheme of the Foreign Judgments Act, and then of the relevant scope of the inherent power of the Supreme Court.
The Foreign Judgments Act
Part 2 of the Foreign Judgments Act establishes a regime for the registration and enforcement of judgments of foreign courts. For the purpose of that regime, a "judgment" includes a final or interlocutory order made by a court in a civil proceeding.
The application of that regime of registration and enforcement to a particular judgment of a particular foreign court is conditional on the existence of regulations which give that judgment the status of a judgment to which Pt 2 applies. The relevant regulation-making power distinguishes for that purpose between regulations which apply Pt 2 to a "money judgment" (that is to say, a judgment under which money is payable) and regulations which apply Pt 2 to a "non-money judgment" (including a final or interlocutory order made by a court in a civil proceeding which is not a money judgment). It is a prerequisite to the making of such regulations that the Governor-General is satisfied that, "in the event of the benefits conferred by [Pt 2] being applied" to a money judgment or non-money judgment of a particular category of courts of a country, "substantial reciprocity of treatment will be assured in relation to the enforcement in that country" of equivalent judgments of equivalent Australian courts.
The regulations which have been made in the exercise of that regulation-making power have the effect of applying Pt 2 to a money judgment of the High Court of Singapore but not to a non-money judgment of the High Court of Singapore. The result, Bayan points out, is that any freezing order which might be made by the High Court of Singapore, as a non-money judgment, would lie outside the regime established by Pt 2. The freezing order could not be registered and enforced under that regime.
That result, interesting as it is, has no bearing on the power of the Supreme Court of a State to make a freezing order in relation to a prospective money judgment of the High Court of Singapore. What matters is that the money judgment, when given, would be a judgment to which Pt 2 would apply.
The central provision within Pt 2 is s 6. Section 6(1) provides:
"A judgment creditor under a judgment to which this Part applies may apply to the appropriate court at any time within 6 years after:
(a) the date of the judgment; or
(b) where there have been proceedings by way of appeal against the judgment, the date of the last judgment in those proceedings;
to have the judgment registered in the court."
The expression "appropriate court" is defined in s 6(2) relevantly to include the Supreme Court of a State.
Section 15C(a) of the Acts Interpretation Act 1901 (Cth) provides that, where a provision of a Commonwealth Act authorises a proceeding to be instituted in a particular court in relation to a matter, that provision is to be deemed to vest that court with jurisdiction in that matter. Interpreted in light of s 15C(a) of the Acts Interpretation Act, s 6(1) operates to invest the Supreme Court of a State with federal jurisdiction under s 77(iii) of the Constitution in the matter to which the application authorised by s 6(1) relates. The matter in respect of which federal jurisdiction is so vested in the Supreme Court encompasses the totality of the issues which arise for judicial determination in the curial processes which flow, directly or indirectly, from the making of the application.
The making of an application under s 6(1) is the immediate trigger for the operation of s 6(3), which relevantly provides:
"Subject to this Act and to proof of the matters prescribed by the applicable Rules of Court, if an application is made under this section, the Supreme Court of a State ... is to order the judgment to be registered."
The reference to "Rules of Court" in s 6(3), as elsewhere in the Foreign Judgments Act, is relevantly to "rules duly made by the Supreme Court of a State".
Section 6(7) goes on to set out the consequences of registration of a judgment pursuant to an order made under s 6(3) on an application under s 6(1). Section 6(7) provides:
"Subject to sections 7 and 14:
(a) a registered judgment has, for the purposes of enforcement, the same force and effect; and
(b) proceedings may be taken on a registered judgment; and
(c) the amount for which a judgment is registered carries interest; and
(d) the registering court has the same control over the enforcement of a registered judgment;
as if the judgment had been originally given in the court in which it is registered and entered on the date of registration."
Section 7 makes provision for the setting aside of a registered judgment by order of the court in which it is registered. Section 14 makes provision for a registered judgment to cease to be enforceable in certain circumstances.
Obviously, no application can be made under s 6(1) until such time as a foreign judgment to which Pt 2 applies comes into existence. Bayan builds on that inherent temporal limitation to argue that the regime established by Pt 2 impliedly excludes any power of the Supreme Court of a State to make a freezing order in anticipation of a foreign judgment coming into existence.
The relevant general principle of statutory interpretation is that "a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably". The registration and enforcement regime established by Pt 2 does affect the jurisdiction which the Supreme Court of a State would otherwise have to enforce a foreign money judgment to which Pt 2 applies. That flows from the express terms of s 10(1), which provides that:
"No proceedings for the recovery of an amount payable under a judgment to which [Pt 2] applies, other than proceedings by way of registration of the judgment, are to be entertained by a court having jurisdiction in Australia."
It is not necessary to explore the full effect of that limitation, which must be read with the provisions of s 12 of the Foreign Judgments Act providing for recognition of (even unregistered) foreign judgments for certain purposes including defence and counter-claim in later proceedings between the parties. No further exclusion of any jurisdiction or power of a State Supreme Court is expressed in the Foreign Judgments Act and none should be implied.
The registration and enforcement regime established by Pt 2 is one that relies on the ordinary processes of the Supreme Court of a State having application to the enforcement of a judgment of a foreign court once that judgment has been registered. That regime would be self-defeating were it to be read as impliedly excluding such jurisdiction and power as the Supreme Court of a State otherwise has to safeguard the efficacy of those enforcement processes.
Bayan further argues that ss 17 and 20 of the Foreign Judgments Act operate to exclude the making by the Supreme Court of rules regulating its own practice and procedure in the nature of those set out in O 52A of the Supreme Court Rules. Those arguments, too, must be rejected.
Section 17 provides:
"(1) The power of an authority to make rules regulating the practice and procedure of a superior court extends to making any rules, not inconsistent with this Act or with any regulations made under this Act, prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act ...
(2) This section does not affect any power to make rules under any other law."
Whether the power conferred by s 17(1) might authorise the making of O 52A r 5 of the Supreme Court Rules need not be considered. Bayan submitted, for the first time in this Court, that any rules which might be made in the exercise of that power would answer the description of a "legislative instrument" and would therefore be ineffective as an exercise of Commonwealth delegated legislative power unless and until registered under the Legislative Instruments Act 2003 (Cth). The instrument by which O 52A was inserted into the Supreme Court Rules has not been so registered.
Whatever the merits of that argument, s 17(2) makes plain that the power conferred by s 17(1) has no effect on the separate rule-making power of the Supreme Court independently conferred, relevantly by s 167(1)(a) of the Supreme Court Act. It is against the ambit of that independently conferred rule-making power that the validity of O 52A r 5 is to be tested.
Section 20 provides:
"Rules of Court relating to the registration or enforcement, under the laws of a State or Territory, of judgments of the courts of a country apply, so far as they are capable of application and with necessary modifications and adaptations, to proceedings under this Act until:
(a) the day on which Rules of Court are made under section 17 of this Act; or
(b) the end of one year from the day on which this Act commences;
whichever is the earlier."
Section 20 is a transitional provision. It is now only of historical interest. Its sole concern was with the modification and adaptation of Rules of Court which existed as at the commencement of the Foreign Judgments Act. It did not contradict s 17(2), and its operation is now spent.
The Supreme Court's inherent power to make a freezing order
The Supreme Court of Western Australia, in common with other State Supreme Courts, is continued in existence as a superior court of record administering law and equity. That status alone implies that it has inherent jurisdiction.
"Jurisdiction" is a word of many meanings. The term "inherent jurisdiction" has been described as "elusive", "uncertain" and "slippery". The difficulty is minimised if the term is confined to its primary signification: to refer to the power inhering in a superior court of record administering law and equity to make orders of a particular description. For present purposes, inherent jurisdiction can be used interchangeably with "inherent power".
The question of the scope of the inherent power of the Supreme Court to make orders of a particular description is distinct from the question of whether or not the authority of the Supreme Court to adjudicate on a particular exercise of its inherent power is within the "federal jurisdiction" invested in the Supreme Court by s 39(2) of the Judiciary Act or by another Commonwealth law enacted under s 77(iii) of the Constitution. That distinct question is not suggested by any party or intervener to be decisive in this case, and consideration of it can therefore be deferred until the conclusion of these reasons.
The rule-making power of the Supreme Court conferred by s 167(1)(a) of the Supreme Court Act is relevantly confined to making rules "regulating and prescribing the procedure … and the practice to be followed in the Supreme Court" in matters in or with respect to which the Supreme Court has jurisdiction. That rule-making power is available to regulate the range of orders capable of being made by the Supreme Court in the exercise of its inherent jurisdiction, but it is not available to expand the range of those orders.
It follows that the Supreme Court can have power to make a freezing order in accordance with the criteria set out in O 52A r 5 of the Supreme Court Rules only if and to the extent that a freezing order made in accordance with those criteria is an order which the Supreme Court can make in the exercise of its inherent power.
What, then, is the relevant scope of the inherent power of the Supreme Court?
There is no need here to attempt any novel or exhaustive exposition. It is well established by decisions of this Court that the inherent power of the Supreme Court of a State includes the power to make such orders as that Court may determine to be appropriate "to prevent the abuse or frustration of its process in relation to matters coming within its jurisdiction". And it has been noted more than once in this Court that a freezing order is "the paradigm example of an order to prevent the frustration of a court's process".
Relying on statements by this Court which have from time to time linked the making of a freezing order to the capacity of a superior court of record to protect the integrity of its processes "once set in motion", Bayan argues that the inherent jurisdiction of the Supreme Court to make a freezing order is always limited to circumstances in which a substantive proceeding in that Court has commenced or is imminent. The criteria set out in O 52A r 5 of the Supreme Court Rules, Bayan argues, are for that reason too wide.
The proposed limitation does not flow from the statements and judgments of this Court relied upon by Bayan. Those statements were not exhaustive statements of the capacity of the Supreme Court of a State, or of any other superior court of record, to protect the integrity of its processes.
There is a critical point which Bayan's argument misses. Even where a court makes a freezing order in circumstances in which a substantive proceeding in that court has commenced or is imminent, the process which the order is designed to protect is "a prospective enforcement process". That description is drawn from the explanation of the nature of a freezing order given by Lord Nicholls of Birkenhead in Mercedes Benz AG v Leiduck. That passage was cited with approval by five members of this Court in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia in a passage which (subject to presently immaterial qualifications) was itself adopted as a correct statement of principle by four members of this Court in Cardile v LED Builders Pty Ltd. Lord Nicholls explained:
"Although normally granted in the proceedings in which the judgment is being sought, [a freezing order] is not granted in aid of the cause of action asserted in the proceedings, at any rate in any ordinary sense. It is not so much relief appurtenant to a money claim as relief appurtenant to a prospective money judgment. It is relief granted to facilitate the process of execution or enforcement which will arise when, but only when, the judgment for payment of an amount of money has been obtained."
The actual holding in Cardile v LED Builders Pty Ltd illustrates that the prospective enforcement process that a court might protect by making a freezing order can be a process contingent on factors in addition to the outcome of a substantive proceeding in that court. The holding was that a freezing order can be made against a third party against whom no present cause of action exists and against whom no present proceeding has commenced. It is enough that some future legal process (which might be contingent, for example, on the appointment by another court of a liquidator or a trustee in bankruptcy) may be available pursuant to which the third party may be obliged to contribute to the funds of the judgment debtor to help satisfy the judgment against the judgment debtor.
The earlier holding of the Supreme Court of New South Wales in Construction Engineering (Aust) Pty Ltd v Tambel (Australasia) Pty Ltd, frequently applied, provides a further illustration. Clarke J there held the Supreme Court to have inherent power to make a freezing order against a party to arbitration "to ensure that an arbitral award, which may as the result of the grant of leave be enforced by court process, is not a 'brutum fulmen'".
Against the background of a freezing order made in advance of judgment being characteristically protective of what at the time of making the order could only be a prospective enforcement, Lord Nicholls went on in Mercedes Benz to point out that there was "nothing exorbitant" about a Hong Kong court making a freezing order in aid of a prospective judgment of a foreign court "given the prerequisite that the anticipated judgment must be one which will be recognised and enforceable in Hong Kong". He fairly observed:
"The alternative result would be deeply regrettable in its unfortunate impact on efforts being made by courts to prevent the legal process being defeated by the ease and speed with which money and other assets can now be moved from country to country. The law would be left sadly lagging behind the needs of the international community."
The power to make a freezing order in relation to an anticipated judgment of a foreign court, which when made would be registrable by order of the Supreme Court under the Foreign Judgments Act, is within the inherent power of the Supreme Court. That is because the making of the order is to protect a process of registration and enforcement in the Supreme Court which is in prospect of being invoked. The criteria set out in O 52A r 5 of the Supreme Court Rules are appropriately tailored to the exercise of that inherent power. Such issues of principle or degree as might arise in the working out of those criteria go to the exercise of that inherent power, not to its existence.
Federal jurisdiction
The parties agree that BCBC's application to the Supreme Court for freezing orders against Bayan and KRL was from its inception a proceeding in a matter within the federal jurisdiction of the Supreme Court, that is to say, within the authority to decide conferred on the Supreme Court by a Commonwealth law enacted under s 77(iii) of the Constitution. They agree that, to the extent not inconsistent with the Foreign Judgments Act, O 52A of the Supreme Court Rules was picked up and applied within that federal jurisdiction by s 79 of the Judiciary Act.
Although no party or intervener argues that it makes any difference to the outcome, it is appropriate to record how that federal jurisdiction arises.
Section 39(2) of the Judiciary Act provides that "[t]he several Courts of the States shall within the limits of their several jurisdictions … be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it ...". The settled effect of that provision is that, where a matter which would otherwise be within the jurisdiction of a State court answers the description of a matter within s 75 or s 76 of the Constitution, the State court is invested with federal jurisdiction with respect to that matter to the exclusion of State jurisdiction under s 109 of the Constitution.
One matter in which original jurisdiction can be conferred on this Court under s 76(ii) of the Constitution, so as in turn to be a matter in which federal jurisdiction is invested in a State court under s 39(2) of the Judiciary Act, is a matter "arising under" a law of the Commonwealth. A justiciable controversy sufficiently answers that description where a claim in issue within the scope of that controversy depends for its existence on a Commonwealth law. It is not necessary that the form of relief claimed also depends on Commonwealth law.
An application for a freezing order in relation to a prospective judgment of a foreign court, which when made would be registrable by order of the Supreme Court under the Foreign Judgments Act, is sufficiently characterised as a matter arising under a law of the Commonwealth on the basis that the prospective enforcement process to be protected by the making of the freezing order depends on the present existence of the Foreign Judgments Act.
Order
The appeal is to be dismissed with costs.