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[1999] FCA 1261
Federal Court of Australia
1999-08-20
As Finkelstein J, Wilson JJ, Wilcox JJ, Higgins J, Brennan J
Original judgment source is linked above.
1 In this matter, I made various orders on occasions which are specified in the notice of motion of the second respondent Andrew Charles Cooper ("Andrew Charles Cooper"), and ultimately made final declarations and orders on 4 and 11 June 1999. I now have before me motions by Mr Cooper and by Tennyson Turner ("Mr Turner"), who are each respondents in the action, for orders that my orders "be set aside" on the basis that the Court, including myself, had no jurisdiction to make those declarations and orders, and for consequential orders.
2 The basis of the notice of motion in each case is the High Court decision in Re Wakim; ex parte McNally [1999] HCA 27 ("Wakim"), delivered on 17 June 1999. It determined that the state legislation which conferred jurisdiction on this Court to hear and determine matters arising under the Corporations Law was invalid. As Finkelstein J said in Welltina Pty Ltd v Mamone [1999] FCA 905:
"The effect of the decision is that unless a matter brought under the Corporations Law also involves a federal matter, the Federal Court must decide that it does not have jurisdiction to hear and determine the matter, and enter judgment for the respondent." 3 The declarations and orders in respect of which the present motions are brought were made before that decision of the High Court. As is clear from the submissions made in support of the motions, both Mr Cooper and Mr Turner seek that I now declare that the Court had no jurisdiction to hear and entertain the actions at all, or to make the orders referred to. In a practical sense, I am being asked to say that the declarations and orders I then made were "a nullity" (the words used by Mr Turner). 4 The applicant in the action, who is the respondent to the motions, opposes the Court making such orders. He has raised, in the careful submissions of Mr Davis of counsel, matters about which I too was concerned. I raised those concerns in the course of submissions on behalf of Mr Cooper and by Mr Turner in support of the motions. 5 It is first contended by Mr Davis that the declarations and orders made are not a nullity ab initio. It is said that the decision of a superior court, even in excess of jurisdiction, is at worst voidable and is valid unless and until it is set aside. My attention was drawn to the observations of Stephen, Murphy and Wilson JJ in Wilde v Australian Trade Equipment Co Pty Ltd (1980) 145 CLR 590 at 602, and to the observations of Toohey and Wilcox JJ in Deputy Commissioner of Taxation v Clyne (1984) 4 FCR 156 at 158. It is true that the circumstances in which those observations were made are not circumstances like those presently existing. Although I am inclined to accept the proposition put by Mr Davis, I do not rule on the motions on the basis of that proposition. I have not had sufficient opportunity to carefully consider it, or its implications, in relation to the present circumstances. 6 The second matter put by Mr Davis was that, as a single judge of the Court, having made the declarations and orders which I have made finally determining the proceedings, I either have no power to further deal with the proceedings in the particular circumstances or, if I do have such power, I should not exercise it. I agree. The declarations and orders have been entered as final judgments and orders of the Court. They have been regularly entered. There is no occasion for the invocation of the 'slip rule' now dealt with in O 35 r 7 of the Federal Court Rules, even accepting (as I do) that that rule permits the Court to alter or vary its final orders in certain circumstances after the judgment has been formally entered. 7 There are sound reasons why that should be so. They are identified, for instance, in the observations of Higgins J in Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642 at 669 to 670 and in the remarks of Brennan J sitting as a judge of the Supreme Court of the Australian Capital Territory in Permanent Trustee Co (Canberra) Ltd v Stocks and Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at 198. 8 In my judgment, the orders which were made were final orders determining the rights as between the parties. If they were made without jurisdiction at all on the part of the Court, the appropriate avenue is for Mr Cooper and Mr Turner, if they wish to complain of those judgments and orders, to adopt the normal course of appealing from them. 9 The particular circumstances created by the decision in Wakim are unusual. As has been established on the motion, the Federal Courts (State Jurisdiction) Act 1999 (SA) has been enacted, apparently with a view to ensuring that such rights by way of appeal from judgments and orders of this Court may be exercised in the Supreme Court of South Australia. This is obviously to meet the concern that the Full Court of this Court may not have jurisdiction to hear and entertain any such appeal. It is also with a view to the Supreme Court of South Australia adopting proceedings in this Court which, following the decision in Wakim, this Court does not have jurisdiction to entertain. 10 In my view, having made final decisions and orders in the action, and there being no circumstance brought to my attention which causes me to doubt that the orders as entered reflect those decisions and orders, I no longer have power to deal with those judgments and orders in the way which is sought on these motions. 11 My attention was drawn to ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth), and to the inherent power of the Court to control its affairs so that they are not exercised in a way which is a misuse or abuse of its procedures so as to give rise to an injustice, as providing a basis for making the orders sought on the motion. Even if the inherent powers of the Court extends beyond the area mentioned, I do not think they extend to enable a judge who has made final orders in a proceeding to make orders of the nature which is now sought, even in the very peculiar and special circumstances now obtaining. Nor do I think ss 23 and 23 advance the position. 12 Even if I did have such power, I would not exercise it. I have referred to the Federal Courts (State Jurisdiction) Act 1999 (SA), which has now come into operation as of 19 August 1999. Under that legislation, it appears that Mr Cooper and Mr Turner are intended to be given the opportunity to have the issues about which the judgments and orders relate transferred to and capable of being ventilated on appeal by the Supreme Court of South Australia. I have not had a full opportunity to consider that legislation. It is apparent that the intent is to address the sort of circumstance in which Mr Cooper, Mr Turner and, no doubt, many other litigants find themselves by reason of the decision in Wakim. To make the orders which I am now asked to make would cut across that legislative scheme, in circumstances where I am not satisfied that it is either necessary or appropriate to do so. Furthermore, although any order which I make today, if I were disposed to make one, would be a "relevant order" as defined in s 11 of that Act, it would not be an ineffective judgment as defined in s 4 of that Act. That circumstance itself may give rise to additional complications which I should endeavour to avoid. 13 In those circumstances, it is my view that I should not make any order on the notices of motion. The rights of Mr Cooper and Mr Turner, about which they are legitimately concerned, should be left to be resolved in accordance with the regime which that legislation prescribes, at least for the time being. It has been brought to my attention in the course of submissions that there may be doubts as to the validity of that legislation. I am not prepared to assume other than that it is valid in making the ruling which I have made. If subsequent events turn out that for some reason or another the rights which it is intended to preserve to them - that is the normal rights of appeal from a decision of a single judge - are not available, it may be necessary for some other procedure to be adopted. At present, I do not make the assumption which underlies in part the submissions put in support of the motions. 14 Accordingly, the order which I propose to make on each motion is simply that there should be no order on the motions. It is my view also that I have no power to order that costs of those motions be awarded, but I will hear Mr Davis of counsel for the applicant if he wishes to contend otherwise. I suspect that in the circumstances it is appropriate that there should be no order as to costs. After hearing counsel, I make no order for costs on the motions. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.
Associate: Dated: 13 September 1999 Counsel for the Applicant: Mr G Davis
Solicitors for the Applicant: Piper Alderman
Counsel for the First, Second, Fifth Mr P Kerin and Sixth Respondents:
Solicitors for the First, Second, Fifth Alderman Consultant Solicitors and Sixth Respondents:
Fourth Respondent appeared in person and on behalf of the Third Respondent
Date of Hearing: 20 August 1999
Date of Decision: 20 August 1999
Rothmore Farms Pty Ltd
Belgravia Pty Ltd