Re Macks; ex parte Saint;Re Macks; ex parte Johnson

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Gaudron J,McHugh J,Gummow J,Kirby J,Hayne,Callinan JJ
• Judgment Date: 07 December 2000
• Neutral Citation: 2000-1207 HCA B,[2000] HCA 62
• Docket Number: A6/2000 and A9/2000
• Date: 07 December 2000

[2000] HCA 62

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

A6/2000 and A9/2000

Re Peter Ivan Macks & Ors

Respondents

and

Ex Parte Anthony John Saint

Applicant

Re Peter Ivan Macks & Ors

Respondents

and

Ex Parte Anthony Francis Johnson & Ors

Applicants

Representation:

Matter No A6/2000

No appearance for the first to seventh respondents

R J Whitington QC with M F Blue for the eighth respondents (instructed by Ward & Partners)

D M J Bennett QC, Solicitor-General of the Commonwealth with S J Maharaj and C J Horan for the ninth respondent (instructed by Australian Government Solicitor)

M L Abbott QC with K G Nicholson for the applicant (instructed by Piper Alderman)

Matter No A9/2000

No appearance for the first to seventh respondents

R J Whitington QC with M F Blue for the eighth respondents (instructed by Ward & Partners)

D M J Bennett QC, Solicitor-General of the Commonwealth with S J Maharaj and C J Horan for the ninth respondent (instructed by Australian Government Solicitor)

D F Jackson QC with H A L Abbott for the applicants (instructed by Bonnins)

Interveners in both matters:

D Graham QC, Solicitor-General for the State of Victoria with P M Tate intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)

B M Selway QC, Solicitor-General for the State of South Australia with R F Gray intervening on behalf of the Attorney-General for the State of South Australia and the Attorney-General of the State of Queensland (instructed by Crown Solicitor for South Australia and Crown Solicitor for Queensland)

M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)

J L B Allsop SC with K M Guilfoyle intervening on behalf of GIO Insurance Limited (instructed by Corrs Chambers Westgarth)

Constitution, ss 51(xxxix), 71, 73, 75, 76, 77, 109.

Corporations (South Australia) Act 1990 (SA).

Corporations (Queensland) Act 1990 (Q).

Corporations Law, s 58AA.

Federal Courts (State Jurisdiction) Act 1999 (SA), ss 3, 4, 6, 7, 8, 9, 10, 11, 12, 14.

Federal Courts (State Jurisdiction) Act 1999 (Q), ss 3, 4, 6, 7, 8, 9, 10, 11, 12, 14.

Federal Court of Australia Act 1976 (Cth), ss 5(2), 24, 33.

Judiciary Act 1903 (Cth), ss 35, 39.

Re Macks ; Ex parte Saint Re Macks; Ex parte Johnson

Courts and judges — Federal courts — Jurisdiction — Orders made by Federal Court in exercise of jurisdiction conferred by cross-vesting legislation — Status of orders of Federal Court made without jurisdiction — Whether federal law can empower a federal court to make orders binding until set aside in proceedings in which that court had no jurisdiction.

Constitutional law — Inconsistency — State laws providing for rights and liabilities of persons affected by ineffective judgments of federal courts — Whether any inconsistency between State laws and Federal Court of Australia Act 1976 (Cth) and Judiciary Act 1903 (Cth) — Validity of State laws.

Constitutional law — Invalidity under Chapter III — State laws providing for rights and liabilities of persons affected by ineffective judgments of federal courts — Whether State laws confer jurisdiction upon a State court which is incompatible with Chapter III of the Constitution — Whether State laws repugnant to federal judicial power — Validity of State laws.

Constitutional writs — Applications out of time — Whether certiorari should issue to quash order of federal court made without jurisdiction.

Constitutional law — Interpretation — Substance and form — Significance of distinction — Application to elucidation of suggested inconsistency between federal and State laws and incompatibility of State laws with Chapter III of the Constitution.

Words and phrases — ‘ineffective judgment’, ‘relevant order’, ‘superior court of record’.

ORDER

1. Order that time for the making of the applications for writs of certiorari be extended.

2. Order absolute in the first instance for a writ of certiorari to quash the order of Registrar Carey of 13 June 1995 in proceedings SG3057 of 1995 in the Federal Court of Australia, ordering the winding up in insolvency and the appointment of the first-named eighth respondent as liquidator in respect of one of the companies in the group of companies comprising the second-named eighth respondents.

3. Order absolute in the first instance for a writ of certiorari to quash the orders of Registrar Fisher of 20 June 1995, in proceedings SG3074, SG3075, SG3076, SG3077, SG3078 and SG3079 of 1995 in the Federal Court of Australia, ordering the winding up in insolvency and the appointment of the first-named eighth respondent as liquidator in respect of six of the companies in the group of companies comprising the second-named eighth respondents.

4. Order absolute in the first instance for a writ of certiorari to quash the orders of O'Loughlin J of 30 August 1995, von Doussa J of 19 December 1995, and Branson J of 21 December 1995 and 24 January 1996, in proceedings SG3080 of 1995 in the Federal Court of Australia, ordering the winding up in insolvency and the appointment of the first-named eighth respondent as liquidator in respect of 54 of the companies in the group of companies comprising the second-named eighth respondents, and declaring void pursuant to s 445G(2) of the Corporations Law any deed of company arrangement entered into by any of those companies.

5. Order absolute in the first instance for a writ of certiorari to quash the order of Registrar Carey of 15 August 1995, in proceedings SG3124 of 1995 in the Federal Court of Australia, ordering the winding up in insolvency and the appointment of the first-named eighth respondent as liquidator in respect of one of the companies in the group of companies comprising the second-named eighth respondents.

6. Order absolute in the first instance for a writ of certiorari to quash the order of Mansfield J of 8 December 1998 in proceedings SG3080 of 1995 in the Federal Court of Australia, ordering that the first-named eighth respondent, as liquidator of all 64 companies in the group of companies comprising the second-named eighth respondents, had power under the Corporations Law to enter into the funding arrangement with the Commonwealth Bank of Australia and GIO Insurance Ltd.

7. Liberty to apply on 21 days notice to a single Justice for the making of an order for a writ of certiorari to quash the order of O'Loughlin J of 31 July 1995 in proceedings SG3050 of 1995 in the Federal Court of Australia ordering the winding up in insolvency and the appointment of the first-named eighth respondent as liquidator in respect of one of the companies in the group of companies comprising the second-named eighth respondents.

8. Applications for writs of prohibition dismissed.

9. In Matter A6 of 2000, applicant to pay the costs of the first-named eighth respondent and of the ninth respondent.

10. In Matter A9 of 2000, applicants to pay the costs of the first-named eighth respondent and of the ninth respondent.

1 Gleeson CJ. Between 1987 and 1990, legislation was enacted by the Commonwealth, State and Territory legislatures to provide for cross-vesting of jurisdiction between federal, State and Territory courts. In 1987 the Advisory Committee on the Australian Judicial System, in its Report to the Constitutional Commission1, expressed doubts as to the validity of the proposed legislation, and drafted a constitutional amendment to support it. In 1988, in its Final Report2, the Constitutional Commission recommended that the Constitution be amended to permit cross-vesting. No such amendment was put to a referendum.

2 In 1990, the States of South Australia and Queensland enacted Corporations Laws which, as part of a scheme of cross-vesting, contained provisions purporting to confer jurisdiction on the Federal Court of Australia. The conferral by a State of judicial power on a federal court was the step that had been regarded as of doubtful validity. The South Australian statute was the Corporations (South Australia) Act 1990 (SA) (‘the South Australian Corporations Act’). The Queensland statute was the Corporations (Queensland) Act 1990 (Q) (‘the Queensland Corporations Act’).

3 There were legal challenges to the validity of the legislation 3. Finally, on 17 June 1999, in Re Wakim; Ex parte McNally4, this Court held the legislation to be invalid.

4 In the meantime, the Federal Court, exercising jurisdiction purportedly conferred on it by State Acts, including the South Australian Corporations Act and the Queensland Corporations Act, had made orders under the Corporations Laws of the various States. Relevantly to the present proceedings, during 1995 and 1996 the Federal Court made orders that a number of companies in the Emanuel Group be wound up, and that Peter Ivan Macks be appointed liquidator. Some of those companies had been incorporated in South Australia, and some had been incorporated in Queensland. The orders were under the Corporations Law of South Australia and Queensland respectively. Further, in December 1998, the Federal Court made certain funding orders confirming arrangements made by Mr Macks to borrow money for the purpose of certain litigation in the Supreme Court of South Australia.

5 One feature of the scheme of legislation of which cross-vesting was a part, was that it contemplated that, although a company may be wound up by, for example, the Federal Court, orders varying the winding up order, or other orders in the winding up, might be made by, for example, the Supreme Court of...