FEDERAL COURT OF AUSTRALIA

Oriana Blue Pty Ltd, in the matter of Cliveden Hill Holdings Pty Ltd v Cliveden Hill Holdings Pty Ltd [2000] FCA 358

IN THE MATTER OF CLIVEDEN HILL HOLDINGS PTY LTD

ORIANA BLUE PTY LTD & JANMOR NOMINEES PTY LTD V CLIVEDEN HILL HOLDINGS PTY LTD

V 3155 of 1999

JUDGE:          FINKELSTEIN

DATE:            7 APRIL 2000

PLACE:          MELBOURNE

IN THE MATTER OF CLIVEDEN HILL HOLDINGS PTY LTD

THE COURT ORDERS THAT:

1.      The application under s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

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

IN THE MATTER OF CLIVEDEN HILL HOLDINGS PTY LTD

REASONS FOR JUDGMENT

1                     By application filed on 14 May 1999 the applicants, each of whom holds shares in the capital of the respondent, sought an order under s 247A of the Corporations Law that an accountant appointed by them be authorised to inspect and make copies of and take extracts from the books of the respondent which may, in the opinion of the accountant, yield information relating to a proposed debt to equity conversion scheme.

2                     Before the application could be heard the High Court handed down its decision in Re Wakim; ex parte McNally (1999) 163 ALR 270.  In that case, and in a series of related cases, the High Court held that the Federal Court did not have jurisdiction to entertain an application under the Corporations Law unless, as a result of the facts upon which the application was founded, it was within the accrued jurisdiction of the Court.  The case could not be brought within the accrued jurisdiction and accordingly it was impossible for the Court to determine the application. 

3                     Shortly after the decision in Re Wakim was handed down, the former Attorney-General for the State of Victoria announced that legislation would be enacted to permit the transfer of proceedings from the Federal Court to the Supreme Court of Victoria in cases where, in consequence of the High Court decision, the Federal Court lacked jurisdiction.

4                     Rather than wait the passage of that legislation the parties to the application resolved their differences.  Nevertheless the applicants apply under s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) that each of them be granted a certificate for the costs which they have incurred in prosecuting the application in the Federal Court. 

5                     In Foody v Horewood [2000] FCA 37 I entertained a similar application.  Re Wakim was decided immediately before that proceeding, being an application under the Corporations Law, was due to be tried.  The trial did not proceed and the case was ultimately transferred to the Supreme Court.  Each party applied for a certificate under s 10 in respect of the costs incurred in preparing the case for trial.  I held that I did not have power to make the order.  Briefly stated, the reason was that in my view the proceeding had not been “rendered abortive” or “discontinued” within the meaning of s 10.  I also held that it was not a proceeding that I was unable to continue or give judgment in within the meaning of s 10.

6                     The current request for a certificate under s 10 meets the same difficulties.  Although it is a matter of some regret, I am unable to accede to the application. 

Associate:

Dated:              7 April 2000