Reasoning
35 The respondents adopted a cautious posture on the appeal. They contended, we think with some force having regard to what we have just said, that orders made on the appeal would be unlikely to prejudice their entitlement to invoke the provisions of the State Jurisdiction Act in the Supreme Court. Nonetheless, they invited this Court to decline to make orders that would ordinarily flow from their concession that the primary Judge acted beyond his jurisdiction. The respondents did so on the basis that this Court should act in a manner designed to maximise their chances of taking advantage of the remedial provisions of the State Jurisdiction Act.
36 A necessary element of the respondents' submissions was the proposition that this Court, in exercising its appellate jurisdiction, has a discretion to grant or withhold relief notwithstanding that it is established beyond argument that the primary Judge acted beyond his jurisdiction. Mr Whelan relied for this purpose on s 28(1) of the Federal Court Act, which provides as follows:
"(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from;
(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;
(c) set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;
…".
According to Mr Whelan, s 28(1)(b), in particular, allows the Court to grant or withhold relief according to the justice of the case. He pointed out that in Re Wakim itself, the Court declined to grant prerogative relief which would have had the effect of setting aside orders made (so the High Court held) without jurisdiction: see at [162], [164]-[165], per Gummow and Hayne JJ.
37 In Kovac v R (1977) 15 ALR 637, an appeal from the Supreme Court of the Australian Capital Territory, a Full Court of the Court observed (at 643)
"that s 24 of the Federal Court of Australia Act1976 is the substantive section conferring upon this court jurisdiction to hear appeals from the Supreme Court of a Territory and that s 28 is modal".
The Court therefore concluded that s 28 of the Federal Court Act did not confer an unfettered discretion on appeal to substitute its own sentence for that of the trial Judge where the trial Judge's discretion had not been shown to have miscarried. See also Anderson v R (1977) 19 ALR 212 (FC), at 213; R v Tait (1979) 24 ALR 473 (FC), at 476; Quinn v Given (1980) 29 ALR 88 (FC), at 93.
38 These decisions strongly suggest that s 28(1)(b) of the Federal Court Act does not confer on the Court a discretion as broad and untrammelled as that for which Mr Whelan contended. Courts are not infrequently given power by statute, in apparently wide terms, to grant or withhold relief. But provisions in this form, as Brennan J remarked in Johns v Australian Securities Commission (1993) 178 CLR 408, at 433, do
"not set the Court on an uncharted course without legal reference points by which to steer."
In that case, the High Court was concerned with s 16(1)(d) of the Administrative Decisions (Judicial Review Act 1977 (Cth), which empowers the Court to make an order directing any party to do anything it "considers necessary to do justice between the parties". Brennan J, with whom Dawson J agreed, pointed out (at 434) that "justice" means justice according to law. Thus if there is no right to relief against a person under the general law, that person does not become liable to have an adverse order made under s 16(1)(d) merely by reason of being joined as a respondent in the relevant proceedings. See also Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51, at 84-85, per Brennan J (with whom Toohey and McHugh JJ agreed).
39 In this case, the appellants have regularly invoked the appellate jurisdiction of the Court in order to challenge the orders made by the primary Judge. They are entitled to appeal as of right against those orders and they have done so within the time specified in the Federal Court Rules. The appeal has come on for hearing before a Full Court in the usual manner. It has been conceded by the respondents that, in view of the decision in Re Wakim, the primary Judge lacked jurisdiction to make the orders he did. In short, as a matter of law, the orders should not have been made.
40 As Griffith CJ remarked in Federated Engine-Drivers and Firemen's Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398, at 415, it is
"the first duty of every judicial officer…to satisfy himself that he has jurisdiction…".
If it becomes clear on appeal that the Court below has made orders without jurisdiction, ordinarily the appellants are entitled to have those orders set aside and to have the proceedings dismissed for want of jurisdiction. To deny the appellants the relief to which they are entitled on the ground, for example, that the point they have taken is "unmeritorious" would not be to act according to law.
41 There is nothing in Re Wakim which suggests to the contrary. The reason prerogative relief quashing the relevant orders was refused in that case was that the applications were well out of time and there were powerful discretionary considerations militating against an extension of time. These included the fact that one of the applicants had already litigated the issues unsuccessfully and that third parties might have acquired rights which would have been adversely affected had the impugned orders been quashed: at [165] per Gummow and Hayne JJ. No such considerations are present in this case. What is more to the point for present purposes is that the Court granted prohibition to the second applicant (who had not previously litigated the issue) in order to prohibit further steps being taken in this Court under the order for winding up. As Gummow and Hayne JJ said (at [164]):
"[i]t was an order made without jurisdiction and further effect should not now be given to it by that Court."
42 Nothing we have said is intended to deny that there may be cases in which it is appropriate to adjourn an appeal by reason of pending proceedings in another court. Each case must be assessed by reference to its own circumstances. But in this case, Santow J, the Judge of the Supreme Court to whom the respondents made their application under the State Jurisdiction Act adjourned the proceedings before him pending the outcome of this appeal. It would be very curious indeed if we were now to adjourn the hearing of the appeal in order to allow the respondents to make a further application to the Supreme Court. To do so would not merely create further delays, but would pay scant respect to the orders made by Santow J.
43 Nor is anything we have said intended to deny that there may be circumstances in which the orders of the Court exercising appellate jurisdiction should be framed in a manner that is consistent with and perhaps designed to attract the provisions of remedial legislation. Once again, whether such an order should be made will depend on the circumstances of the case, of which the most important are likely to be the substantive rights and duties of the parties to the appeal. The Court is not necessarily bound to shut its eyes to remedial legislation intended, for example, to minimise the inconvenience and uncertainty that would otherwise flow from a decision holding a legislative scheme to be unconstitutional.
44 But in this case, as we have explained, the appellants accept that the order should be in a form which would seem to comply with the definition of "relevant orders" in s 11 of the State Jurisdiction Act, thus preserving the respondents' position as far as any relevant "limitation law" is concerned. Some questions may remain concerning the operation of the State Jurisdiction Act although, as we have pointed out, it is by no means obvious that the respondents' pending application to the Supreme Court will or could be prejudiced by any orders made on this appeal. In any event, if there is such prejudice, it is a consequence of this Court giving effect, as it is bound to do, to the rights of the parties in accordance with the law determined by the High Court. There is no basis for declining to make the orders that rectify what is conceded to have been the error (albeit an unavoidable one) made by the primary Judge, namely to have made orders adversely affecting the appellants in the absence of jurisdiction to do so.
45 Orders should therefore be made setting aside the orders made by the primary Judge insofar as they affect the appellants, including the order as to costs. In lieu thereof orders should be made dismissing the proceedings against the appellants for want of jurisdiction. Senior Counsel for Ms Chang (the fifth appellant in N 684 of 1999) accepted that this was the appropriate form of orders so far as she was concerned, even though the primary Judge had dismissed the proceedings against her. The respondents should pay the appellants' costs of the appeal.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Sackville and Kiefel.