FEDERAL COURT OF AUSTRALIA

Matthews v Australian Securities & Investments Commission [2000] FCA 288

JURISDICTION - Corporations Law - federal jurisdiction conferred on Federal Court by s 51 Corporations Act 1989 (Cth) in respect of matters arising under the Corporations Law of the ACT - application filed in Federal Court which refers to the Corporations Law taken to be a reference to the Corporations Law of the ACT.

JURISDICTION – court orders - order of a superior court made in excess of jurisdiction is “voidable” and valid and enforceable until set aside.

WORDS AND PHRASES – “internet”.

Acts Interpretation Act 1901 (Cth)

Australian Securities and Investments Commission Act 1989 (Cth) ss 1(1), 1B(1), 1C(2), 1D(1), 5, 7, 11, 11(6)

Circuit Layouts Act 1989 (Cth) s 41

Copyright Act 1968 (Cth) s 131B

Corporations Act 1989 (Cth) Pt 8 (ss 37 – 48); ss 3(1), 5, 13, 14, 14(2), 14(3), 14(4), 14(5), 50, 51, 82

Corporations Law ss 781, 782, 783, 1324, 1324(1)

Corporations Legislation Amendment Act 1990 (Cth)

Designs Act 1906 (Cth) s 40I

Federal Court of Australia Act 1976 (Cth) s 5(2)

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 7(5)

Patents Act 1990 (Cth) s 158

Trade Marks Act 1995 (Cth) s 195

Federal Court Rules O 80

Corporations (NSW) Act 1990 (NSW) ss 3, 7, 10, 66, 68

Federal Courts (State Jurisdiction) Act 1999 (NSW)

Interpretation Act 1987 (NSW)

The Constitution Ch III; ss 51, 51(xx), 71

Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404 referred to

Re Wakim, Ex parte McNally, (Spinks v Prentice) (1999) 73 ALJR 839 applied

Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 519 referred to

Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 distinguished

United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 distinguished

Pelechowski v Registrar, Court of Appeal (1999) 73 ALJR 687 distinguished

Cameron v Cole (1944) 68 CLR 571 applied

Re Zagoridis; Ex parte Q’Plas Group Pty Ltd (1990) 27 FCR 108 applied

R v Sagacio; Ex parte Katelaris (1990) 99 FLR 439 applied

Autistic Association of New South Wales v Dodson [1999] FCA 715 applied

Australia and New Zealand Banking Group Ltd v Merribee Pastoral Industries Pty Ltd (1998) 84 FCR 367 applied

Robins v Incentive Dynamics Pty Ltd [1999] FCA 1651 applied

Westpac Banking Corporation v Paterson (1999) 167 ALR 377 applied

Elders Limited v Swinbank [2000] FCA 56 applied

AMIEU v Mudginberri Station Pty Ltd (1986) 65 ALR 683 applied

Bond v The Queen [2000] HCA 13 referred to

Fencott v Muller (1983) 152 CLR 570 referred to

Edensor Nominees Pty Ltd v Australian Securities and Investments Commission (1999) 33 ACSR 237 referred to

Boys v Australian Securities Commission (1997) 24 ACSR 1 referred to

STEPHEN LEWIS MATTHEWS v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION

N 617 OF 1999

RYAN, LEE & BRANSON JJ

17 MARCH 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT

1                     The appellant appeals from the decision of a judge of this Court (Sackville J) that the appellant was in contempt of orders of the Court made by O’Connor J on 19 February 1999 and from the order made by his Honour that the appellant be imprisoned for two months for such contempt unless the appellant refrained from further contravention of those orders in the period of twelve months following the order.

2                     The reasons for the decision and orders of Sackville J are now reported as Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404.

3                     On 17 November 1999 a judge of this Court (Hely J) directed that if the appellant intended to seek an extension of the time within which he might file an application for leave to appeal against the orders made by O’Connor J, and an application for leave to appeal, an appropriate motion, and supporting affidavits, were to be filed by the appellant by 29 November 1999. If so filed, the motion was to be heard with this appeal. No motion was filed by the appellant pursuant to that direction.

4                     When the appeal came on for hearing counsel for the parties presented a minute which recorded that the respondent (“the Commission”) was prepared to consent to the appellant being granted an extension of time to seek leave to appeal and leave to appeal from the orders of O’Connor J. The minute further provided that the Commission would consent to the setting aside of the orders of O’Connor J and to an appeal from those orders being allowed.

5                     The Court advised counsel that, although parties to orders of the Court may reach an accord that the orders be set aside, the Court was not prepared to make the further orders proposed in the minute by way of disposing of an appeal from the orders of O’Connor J without hearing argument from counsel on the issue of jurisdiction, the proposed order in the minute being predicated upon an assumption that the orders of O’Connor J were made without jurisdiction.

6                     Counsel had not prepared arguments to support the proposed consent orders. There was no accord that a single order be made setting aside the orders of O’Connor J. The appeal from the decision and order of Sackville J proceeded, the sole ground of appeal being that the decision and order were a nullity.

7                     In the proceedings before O’Connor J and Sackville J, the appellant was unrepresented. Before this Court the appellant was represented by pro bono solicitor and counsel.

8                     The relevant facts are as follows. In February 1999 the Commission commenced proceedings against the appellant by filing an application in this Court. The application was endorsed as being made “[p]ursuant to s 1324 of the Corporations Law”. It sought orders that the respondent be restrained from, inter alia, “advising other persons…and publishing reports about securities on the internet, including but not limited to, the internet site known as ‘The Chimes’ and situated at http://www.chimes.com.au.”. In the application the Commission also sought interim orders in similar terms.

9                     The relevant part of s 1324 of the Corporations Law reads as follows:

“1324(1)  Where a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:

       (a)     a contravention of this Law;

       …

the Court may, on the application of the Commission…grant an injunction, on such terms as the Court thinks appropriate, restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.”

10                  The interlocutory application came on for hearing before O’Connor J on 19 February 1999. Her Honour heard evidence that the appellant had established an “internet site” known as “The Chimes” on which site information relating to securities had been published by the appellant and that the appellant was not the holder of an investment adviser’s licence issued by the Crown under s 783 of the Corporations Law authorising the appellant to carry on an investment advice business or hold himself out as an investment adviser.

11                  Her Honour was satisfied according to the principles appropriate for the grant of interim restraining orders that the Commission had an arguable case that the appellant, not being a licensee, had contravened s 781 of the Corporations Law by carrying on an investment advice business, in conducting in the manner described the “web site” known as “The Chimes”, and by holding himself out on that “web site” as an investment adviser.

12                  Her Honour was satisfied that the interim orders sought by the Commission should be made as follows:

“1.       Until further order, the Respondent, Stephen Lewis Matthews, be restrained from advising, either directly or indirectly, other persons about securities.

2.         Until further order, the Respondent, Stephen Lewis Matthews, be restrained from publishing, either directly or indirectly, reports about securities.

3.         Until further order, the Respondent, Stephen Lewis Matthews, be restrained from advising other persons about securities on the internet, including, but not limited to, the internet site known as ‘The Chimes’ and situated at http://www.chimes.com.au.

4.         Until further order, the Respondent, Stephen Lewis Matthews, be restrained from publishing reports, or allowing to be published reports, about securities on the internet, including, but not limited to, the internet site known as ‘The Chimes’ and situated at http://www.chimes.com.au.

…”

13                  On 22 March 1999 the Commission filed a motion seeking an order that the appellant was in contempt of the orders made by O’Connor J. The Commission alleged that the appellant had continued to allow publication of securities reports and investment advice on the “web site” operated by him.

14                  When the motion came on for hearing before Sackville J on 16 June 1999 the appellant admitted that he had disobeyed the orders made by O’Connor J.

15                  Sackville J ordered and declared that:

“1.       The Respondent, Stephen Lewis Matthews, is guilty of contempt of this Court by his conduct in disobeying an order made by O’Connor J on 19 February 1999, in that the respondent

            (a)     on 8 March 1999 allowed to be published a securities report, entitled ‘GIO, Goodman F, Flight Center, Omnitech’, on the web site known as The Chimes and situated at http://www.chimes.com.au;

            (b)     on 10 March 1999 allowed to be published two securities reports, entitled ‘CBA, Harvey Norman, Novogen, Viking Industries, WD&HO Wills’ and ‘BHP, AMP, Redflex, Secure Networks, Liberty One, ICM’, on the web site known as The Chimes and situated at http://www.chimes.com.au;

            (c)     on 12 March 1999 allowed to be published a securities report, entitled ‘Cinimagic, Lion Nathan, Harvey Norman’, on the web site known as The Chimes and situated at http://www.chimes.com.au;

            (d)     on 13 March 1999 allowed to be published a securities report, entitled ‘HOY, will up profits due to Star Wars release…’, on the web site known as The Chimes and situated at http://www.chimes.com.au;

            (e)     on 15 March 1999 allowed to be published a securities report, entitled ‘Richfield Resources. PMP, Ozemail, Macquarie Bank, United Energy, Anglo Pacific’, on the web site known as The Chimes and situated at http://www.chimes.com.au; and

                        (f)      on 15 March 1999 allowed to be published a securities report, entitled ‘One, TYA, CUP, WBC, ORI, AWA, ICT, FCL, FMH, IFA, CML, WNT, ABF’, on the web site known as the Chimes and situated at http://www.chimes,com,au.”

and further ordered that:

“2.       The respondent be imprisoned for a period of two months.

 3.        A warrant for the respondent’s committal to prison for a period of two months issue.

 4.        The warrant lie in the Registry to the intent that it not be executed, provided that the respondent refrains from contravening any of the orders made by O’Connor J on 19 February 1999, while any such order remains in force, for a period of twelve months from today’s date.

…”

16                  On 17 June 1999 the High Court delivered judgment in Re Wakim; Ex parte McNally, (Spinks v Prentice) (1999) 73 ALJR 839 in which it was held that this Court did not have a jurisdiction validly conferred upon it pursuant to Ch III of the Constitution where a State purported to confer on the Court jurisdiction in civil matters arising under the Corporations Law of the State and where the Commonwealth purported to authorise the Court to exercise such jurisdiction.

17                  On 15 July 1999 the matter came before Sackville J for further directions. Counsel for the Commission informed his Honour that the Commission conceded that the Court “had no jurisdiction to hear the proceeding”. His Honour stated that he would “stand [the] matter over generally and note that the Court has no jurisdiction in relation to the completion of [the] matter”.

18                  The Commission then commenced a proceeding in the Supreme Court of New South Wales seeking an order under the Federal Courts (State Jurisdiction) Act 1999 (NSW), which came into force on 9 July 1999. On 26 July 1999, in a decision now reported as Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 519, the Supreme Court (at 522) made the following orders:

“(1)     Orders that the proceeding of Australian Securities and Investments Commission v Stephen Lewis Mattheews N3017 of 1999 in the Federal Court of Australia (the proceeding) be treated as a proceeding in the Supreme Court of New South Wales.

 (2)      Directs that the registrar of the Supreme Court arrange with the registrar of the Federal Court of Australia for the transfer of the file of the proceeding.

 (3)      Declares that the rights and liabilities of the parties to the proceeding are, and always have been, the same as if the judgment of O’Connor J on 19 February 1999 in the proceeding had been valid judgment of the Supreme Court in the Equity Division, constituted by a judge of the Supreme Court.

 (4)      Declares that the rights and liabilities of the parties to the Proceeding are, and always have been, the same as if the judgment of Sackville J on 16 June 1999 in the Proceeding had been valid judgment of the Supreme Court in the Equity Division, constituted by a judge of the Supreme Court.

…”

19                  The appellant does not contend that in finding the appellant guilty of contempt Sackville J erred in law but submits that by reason of the decision in Re Wakim; (Spinks v Prentice) and the invalidity of the purported grant of jurisdiction to this Court in matters arising under the Corporations Law of the State of New South Wales, the Court was without jurisdiction when the orders of O’Connor J were made. The appellant submits that the orders made were “a nullity” and that, accordingly, any proceeding in this Court alleging contempt of those orders was incompetent and therefore the orders made by Sackville J should be set aside.

20                  The appellant’s submission is based on a false premise. In submitting that the orders of O’Connor J were “a nullity”, the appellant relies upon a principle referred to in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 per McHugh JA at 357; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 per Samuels AP at 335; Pelechowski v Registrar, Court of Appeal (1999) 73 ALJR 687 per Gaudron, Gummow and Callinan JJ at 692, namely that an order of an inferior tribunal is a nullity if, in the exercise of judicial power, the tribunal has no authority to make such an order, and failure to obey such an order will not constitute contempt. That is not a principle relevant to orders of this Court. Pursuant to s 5(2) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) the Court is a superior court of record.Section 50 of the Corporations Act 1989 (Cth) also provides that for the purpose of administration of the Corporations Law this Court, the Supreme Court of a State or Territory, the Family Court and a State Family Court are superior courts. Parliament has made it clear that no issue is to arise that any judgment or order of this Court is a judgment or order of an “inferior” court. An order of a superior court made in excess of jurisdiction is merely voidable and remains valid and enforceable until set aside. (See:  Cameron v Cole (1944) 68 CLR 571; Re Wakim at [162], [164] – [165]; Re Zagoridis; Ex parte Q’Plas Group Pty Ltd (1990) 27 FCR 108; R v Sagacio; Ex parte Katelaris (1990) 99 FLR 439; Autistic Association of New South Wales v Dodson [1999] FCA 715; Australia and New Zealand Banking Group Ltd v Merribee Pastoral Industries Pty Ltd (1998) 84 FCR 367; Robins v Incentive Dynamics Pty Ltd [1999] FCA 1651; Westpac Banking Corporation v Paterson (1999) 167 ALR 377; Elders Limited v Swinbank [2000] FCA 56 at [43]; AMIEU v Mudginberri Station Pty Ltd (1986) 65 ALR 683 at 695.)

21                  Although the jurisdiction of this Court is as defined by statute, it does not follow that a court of limited jurisdiction is necessarily an “inferior” court. (See:  Cameron v Cole per McTiernan J at 599, per Williams J at 606.) The principal superior court in the Australian judicial system, the High Court, is not a court of unlimited jurisdiction.

22                  The appellant submitted that the Court is an “inferior” court in that s 71 of the Constitution provides that the High Court of Australia has appellate jurisdiction in respect of all judgments and orders of the Court. Of course, the High Court has like jurisdiction in respect of judgments or orders of a Supreme Court of a State or Territory. Counsel conceded that the logical extension of his argument was that the Supreme Courts of the States and Territories were also “inferior” courts. Understandably, the submission was not pressed.

23                  This Court, and the Supreme Courts, perform trial and appellate functions at the same level in the Australian judicial system. For example, in some matters involving the exercise of federal jurisdiction, an appeal from the decision of a single judge of a Supreme Court must be heard by the Full Court of this Court. (See:  Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 7(5) and Schedule; Copyright Act 1968 (Cth), s 131B; Trade Marks Act 1995 (Cth), s 195; Patents Act 1990 (Cth), s 158; Designs Act 1906 (Cth), s 40I; Circuit Layouts Act 1989 (Cth), s 41; Advance Australia Logo Protection Act 1984 (Cth) s 13.)

24                  Therefore, as at 16 June 1999 the appellant was bound by the orders of this Court made by O’Connor J on 19 February 1999 and failure to obey those orders would constitute a contempt of the Court. The jurisdiction exercised by Sackville J on the hearing of the contempt proceeding was federal jurisdiction conferred by s 31 of the Federal Court Act. It remained so even if the jurisdiction purportedly exercised by O’Connor J had been “State jurisdiction.” (See: United Telecasters per Samuels AP at 338 – 339.)

25                  If, after the orders made by Sackville J, the appellant had duly appealed from the orders of O’Connor J and had succeeded in having those orders set aside, the finding of contempt and orders made by Sackville J would not fall with the setting aside of orders made by O’Connor J.

26                  For the foregoing reasons, the appellant’s ground of appeal must be rejected.

27                  Furthermore, it is not apparent to us that the relevant orders of O’Connor J were made without jurisdiction.

28                  The “Corporations Law”,so called, is created by, and set out in, s 82 of the Corporations Act (Cth). It came into effect on 1 January 1991 by operation of the Corporations Act (Cth) and the Corporations Legislation Amendment Act 1990 (Cth). Section 3(1) of the Corporations Act (Cth) states that the object of the Corporations Act (Cth) (with the exception of Pt 8 thereof) is to make a law for the government of the Australian Capital Territory (ACT) in relation to “corporations, securities, the futures industry, and some other matters”. Such a provision indicates that the authority to legislate relied upon by Parliament was the “Territories power” (Constitution, s 122) rather than the “corporations power” (Constitution, s 51(xx)). Section 5 of the Corporations Act (Cth) applies the Corporations Law as a law for the government of the ACT.

29                  However, the terms of the Corporations Act (Cth) show that the object of the Corporations Act (Cth) is not limited to that set out in s 3(1). First, it complements, and for that reason is to be read with, the Australian Securities and Investments Commission Act 1989 (Cth) (“the ASIC Act”) and, second, it provides for the Corporations Law as enacted in s 82 of the Corporations Act (Cth) to become a single national law, by combination of the provisions of the Corporations Act (Cth) and provisions of State laws which apply the Corporations Law of the ACT as a law of the States.

30                  Section 13 of the Corporations Act (Cth) provides that, for the purpose of an Act of the Parliament, where a law of a State that corresponds to s 5 of the Corporations Act (Cth) applies the Corporations Law set out in s 82 as in force for the time being as a law of the State, the Corporations Law of the State is the Corporations Law so set out in s 82. Section 7 of the Corporations (NSW) Act 1990 (NSW) (“Corporations Act (NSW)”) has enacted the “Corporations Law set out in s 82 of the Corporations Act (Cth)” as a law of New South Wales. Section 10 of the Corporations Act (NSW) applies the Acts Interpretation Act 1901 (Cth) as a law of New South Wales to the Corporations Law and further provides that the Interpretation Act 1987 (NSW) does not apply to that law.

31                  Section 14 of the Corporations Act (Cth) provides that the object of that section is to help ensure that the Corporations Law of the ACT operates as if that law, together with the Corporations Law of each State, “constituted a single national Corporations Law applying of its own force throughout Australia”.

32                  By Pt 8 (ss 37 – 48) of the Corporations Act (Cth) the Corporations Law of the ACT is given extended operation for a purpose that extends beyond making a law for the government of the ACT. Section 37 of the Corporations Act (Cth) states that the object of Pt 8 is to help ensure that the Corporations Law of the ACT and the Corporations Law of each State “are administered and enforced on a national basis, in the same way as if those Laws constituted a single law of the Commonwealth”. The further legislative power relied upon to enact Pt 8 appears to be that vested in the Parliament by s 51(xx) of the Constitution if not other powers provided by s 51. Part 8 provides that an offence against the Corporations Law of a State, or “ASC Law” of a State, is to be treated in the ACT as an offence against a law of the Commonwealth (s 40) and for the purpose of “Commonwealth administrative laws” an act, matter or thing arising under the Corporations Law of a State, or “ASC Law” of a State, is taken to be an act, matter or thing arising under, or in respect of, the laws of the Commonwealth (ss 45A, 45E).

33                  The objects of the ASIC Act as set out in s 1 thereof do not refer to the making of a law for the government of the ACT but the provisions of the ASIC Act as a whole suggest that such an object is also incidental to the objects described in s 1. Section 1B(1) of the ASIC Act states that the ASIC Act “may also be referred to as the ASC Law of the ACT or, … , simply as the ASC Law”. Section 1(1) states that the objects of the ASIC Act are, inter alia, to provide for the Commission which will administer such laws of the Commonwealth, the ACT and the States as confer functions and powers under those laws on the Commission and to provide for the functions, powers and business of the Commission. Section 1C(2) of the ASIC Act provides that where a law of a State contains a provision corresponding to s 5 of the Corporations Act (Cth) and also provides for provisions of the ASIC Act to apply as a law of that State, the provisions of the ASIC Act so applied are the ASC Law of that State. In New South Wales the ASIC Actis applied as the ASC Law of that State by s 58 of the Corporations Act (NSW).

34                  The Commission is established by s 7 of the ASIC Act. Section 1D(1) of the ASIC Act states that the object of that section is to ensure that the Commission, as a body established under the ASIC Act can perform functions, and exercise powers, as if the ASC Law of the ACT, together with the ASC Law of each State, “constituted a single national ASC Law applying of its own force throughout Australia”.Under s 11 of the ASIC Act the functions and powers of the Commission are, inter alia, those conferred on the Commission under the ASIC Act, the Corporations Act (Cth), the Corporations Law of the ACT, and those “expressed” to be conferred by a “national scheme law” of a State. Section 5 of the ASIC Act defines a “national scheme law” as the Corporations Act (Cth), the Corporations Law of the ACT, the ASIC Act or a law of a State that corresponds to one of the foregoing. For the purpose of s 11 of the ASIC Act, the Corporations Act (NSW) would be a “national scheme law” of New South Wales. Section 66 of the Corporations Act (NSW) states that the Commission “has the functions and powers expressed to be conferred” on it under a “national scheme law” of New South Wales. Section 3 of the Corporations Act (NSW) defines a “national scheme law” of New South Wales as the Corporations Act (NSW), the Corporations Law of NSW, and the ASC Law of NSW.

35                  Section 11(6) of the ASIC Act provides that the Commission has the general administration of that Act and s 1324 of the Corporations Law of the ACT empowers the Commission to make application to this Court for an injunction in respect of alleged contravention of the Corporations Law. Section 68 of the Corporations Act (NSW) states that the Commission has power to do acts in New South Wales in performance or exercise of any function or power expressed to be conferred on the Commission by a “national scheme law of another jurisdiction” which, of course, would include the Corporations Law of the ACT.

36                  Whatever circularity may exist in the foregoing provisions it is s 11 of the ASIC Act which either confers, or permits to be conferred, functions or powers on the Commission as the expression of the will of the Parliament as to what powers and functions the Commission, as a body created by the Parliament, may exercise. (See:  Bond v The Queen [2000] HCA 13 at [15].)

37                  The High Court held in Re Wakim, (Spinks v Prentice) that a provision of a State law enacting the Corporations Law of the ACT as a law of the State which purports to confer on this Court jurisdiction in matters arising under that State law is invalid. However, it also held that federal jurisdiction has been duly conferred on this Court by s 51 of the Corporations Act (Cth) in respect of matters arising under the Corporations Law of the ACT (per Gleeson CJ at [25], per Gaudron J at [29], per McHugh J at [82], per Gummow and Hayne JJ at [172] – [175], per Callinan J at [313]).

38                  In the instant matter it appears to have been assumed by counsel that this Court had no jurisdiction pursuant to which it could make the orders sought by the Commissionother than a jurisdiction purportedly conferred on the Court by the Corporations Act (NSW).

39                  For several reasons such an assumption would not appear to be correct.

40                  First, under s 14(2) of the Corporations Act (Cth), a reference in an “instrument” to the Corporations Law is to be taken, for the purpose of the laws of the Commonwealth (which, of course, includes the Federal Court Act) to “be” a reference to the Corporations Law of the ACT and to “include” a separate reference to the Corporations Law of each State. Section 14(3) states that s 14(2) applies except so far as a contrary intention appears in the instrument, or the context of the reference otherwise requires. In s 14(4) an example of a contrary intention, or context, is said to be a reference expressed as a reference to the Corporations Law of a State. Pursuant to s 14(5) an “instrument” includes an application made for any purpose, or process issued in connection with a legal proceeding. It follows that an application filed in this Court which refers to the Corporations Law, will be taken to be a reference to the Corporations Law of the ACT and to invoke jurisdiction conferred on this Court by s 51 of the Corporations Act (Cth).

41                  As noted at the commencement of these reasons, the application filed by the Commission in the New South Wales District Registry of the Court sought relief “Pursuant to s 1324 of the Corporations Law”. The application did not purport to limit the jurisdiction exercisable by the Court to that purportedly conferred upon it by the Corporations Act (NSW).

42                  Second, demonstration of a contravention of s 781 of the Corporations Law does not depend on establishment of a “territorial nexus” with a State or Territory. (See:  ASIC v Matthews (1999) 32 ACSR 519 per Austin J at 520.)

43                  The licence to which s 781 of the Corporations Law refers is a licence issued by the Commission under s 783 of the Corporations Law upon application made to the Commission under s 782 of the Corporations Law . As noted earlier, Parliament, by the ASIC Act, has established the Commission and it is s 11 of the ASIC Act which permits the Commission to exercise functions and powers expressed to be conferred on it by a “national scheme law” of a State. A licence granted by the Commission under s 783 of the Corporations Law is granted pursuant to powers conferred on the Commission, or permitted to be exercised, by the ASIC Act, the exercise of those powers further effecting the purpose of the Corporations Act (Cth) of constituting the Corporations Law of the ACT and laws of the States applying that Corporations Law as a law of the State as a “single national Corporations Law applying of its own force throughout Australia”. That the ASIC Act is the true source of the Commission’s power may be seen in that a licence granted under s 783 of the Corporations Law has effect wherever the Corporations Law of the ACT has been applied and is not a licence divisible in scope or operation according to territorial boundaries of a State or Territory.

44                  In determining the interlocutory proceedings in the instant matter where conduct of a person not the holder of a licence was said to have contravened s 781 of the Corporations Law, and where a material element of the relevant conduct was said to involve the use of an “internet site”, it may be assumed that at all material times access to such an “internet site” was available to any computer connected to the telephonic communications system that operates throughout Australia.

45                  Any contravention of the Corporations Law occasioned by maintaining an “internet site” to carry on an investment advice business or be held out as an investment adviser would be as much a contravention of the Corporations Law of the ACT as it would be a contravention of the Corporations Law of a State. On the facts placed before her Honour, it would appear that an inference could have been drawn that use of an “internet site” in the manner alleged would involve concurrent or multiple contraventions of the Corporations Law throughout Australia and that a proceeding in respect of such a contravention could be commenced in this Court under the federal jurisdiction conferred on the Court by s 51 of the Corporations Act (Cth). It is unnecessary to consider whether a concurrent contravention of the Corporations Law of a State would attract attached or accrued federal jurisdiction as part of a controversy constituting the matter that is justiciable under the federal jurisdiction. (See: Fencott v Muller (1983) 152 CLR 570 per Mason, Murphy, Brennan and Deane JJ at 602 – 611.) Nor need one consider whether the State law applied in exercise of such accrued jurisdiction expressly excluded this Court as a court which may make orders under that Law. (cf  Edensor Nominees Pty Ltd v Australian Securities and Investments Commission  (1999) 33 ACSR 237 at [23] – [27].) The latter question would seem to involve an issue of statutory construction separate and distinct from that involved in determining whether the State legislation has exceeded legislative power in purporting to confer “State jurisdiction” on this Court.

46                  In the interlocutory proceeding for interim relief before O’Connor J there was sufficient evidence to show that federal jurisdiction had been attracted. The admission of the appellant that he had established the “internet site” described in the application, and operated it in the manner alleged, supported a conclusion that a prima facie case existed that the appellant had contravened the Corporations Law of the ACT, a matter involving federal jurisdiction.

47                  It is unnecessary to consider whether, apart from the foregoing, it may be said that a proceeding commenced in this Court by the Commission in exercise of functions and powers conferred on it by s 11 of the ASIC Act is a proceeding in a matter arising under the ASIC Act in respect of which original jurisdiction is conferred on this Court by s 39B(1A)(c) of the Judiciary Act 1903 (Cth). (See: Boys v Australian Securities Commission (1997) 24 ACSR 1 per Carr J at 12 – 14; cf Edensor at [28].)

48                  The appeal must be dismissed with costs.

Associate:

Dated: