FEDERAL COURT OF AUSTRALIA

Martin v Taylor [2000] FCA 1002

JURISDICTION – Court exercising appellate jurisdiction – jurisdiction to set aside decision where proceedings below incompetent

Residential Tenancies Act 1997 (ACT), ss 47, 110, 115

ACT Supreme Court (Transfer) Act 1992 (Cth), s 48A

Supreme Court Act 1933 (ACT), ss 3(2), 20, 34B

Federal Court of Australia Act 1976 (Cth), ss 4, 24(1)(b)

Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536 referred

Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 referred

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 referred

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred

Oil Basins Ltd v Commonwealth (1993) 178 CLR 643 referred

Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154 referred

Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119 referred

Robins v Incentive Dynamics Pty Ltd (1999) 91 FCR 423 applied

Chamberlain v R (No. 2) (1984) 153 CLR 521 referred

Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280 cited

Mossop, “The Judicial Power of the Australian Capital Territory” (1999) 27 Federal Law Review 19

Zamir and Woolf, The Declaratory Judgment (2^nd ed, 1993)

ANTHONY GILBERT MARTIN & ANOR v BARRY ANTHONY TAYLOR & ANOR

A 44 of 1999

MILES, EINFELD & KENNY JJ

CANBERRA

27 JULY 2000

THE COURT ORDERS THAT:

1.      The appeal be allowed.

2.      The judgment, including the rulings and order, made by the primary judge on 27 May 1999 be set aside and, in lieu thereof, the proceeding No. SC 182 of 1999 in the Supreme Court of the Australian Capital Territory be dismissed as incompetent.

3.      There be no order as to costs of the proceeding below or on appeal.

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

REASONS FOR JUDGMENT

MILES J:

1                     I have read the judgment of Einfeld and Kenny JJ in draft and agree that the appeal should be allowed and the ancillary orders made for the reasons advanced.

2                     I would add that the appeal was heard prior to the decisions given in subsequent proceedings brought in the Supreme Court by Individual Homes against the Martins.  In those proceedings the Supreme Court ordered that Individual Homes have leave to enter judgment for possession of the property.  An appeal against that order was dismissed by this Court on 18 May 2000:  Martin v Individual Homes Pty Limited (In Liquidation) [2000] FCA 795.  There is nothing in the judgments given in the subsequent proceedings which affects the present appeal.

Associate:

Dated:    27 July 2000

REASONS FOR JUDGMENT

EINFELD and KENNY JJ:

3                     This is an appeal from a judge of the Supreme Court of the Australian Capital Territory (“the Supreme Court”).  The circumstances leading to the present appeal, although not intrinsically complex, have nonetheless led to a great deal of litigation.  It is necessary to review the history of this litigation in order to understand the nature of the present appeal.

factual background

4                     Until its liquidation commenced in 1994, Individual Homes Pty Ltd (“Individual Homes”) was under the exclusive control of Mr & Mrs Martin, the plaintiffs below and the appellants in this Court.  Individual Homes is the registered proprietor of a Crown Lease over land at 8 Grund Place, Kambah, in the Australian Capital Territory (“the property”) that was granted on 23 October 1979.  The house in which the Martins have lived since October 1979 is on the property, to which they claim to have made substantial improvements.  The precise nature of the arrangements between the Martins and Individual Homes regarding their residence remains unclear.  Notwithstanding the already lengthy litigation, at the time this appeal was heard, no court (or tribunal) had yet made any definitive finding of fact about these arrangements.

5                     On 4 May 1994, upon the application of the Commonwealth Bank of Australia (“CBA”), the Chief Justice of the Supreme Court made orders for the compulsory winding up of Individual Homes pursuant to s 460(1) of the Corporations Law.  Mr B A Taylor, the first respondent on this appeal, was appointed the company’s liquidator.  The Martins appealed.  On 30 June 1994, a Full Court of this Court, by majority, made orders dismissing the “purported notice of appeal … as incompetent” and striking out a supplementary notice of appeal as an abuse of process.  Subsequently, the High Court dismissed applications for special leave.

6                     All subsequent proceedings have arisen essentially out of efforts by Individual Homes, in liquidation, to recover possession of the property from the Martins, who have, on most occasions, not had the benefit of legal representation.  They were not represented on the hearing of this appeal, and Mr Martin spoke on behalf of himself and his wife. 

7                     After the order for winding up, Individual Homes (by its liquidator) sought to recover possession of the property upon the basis that the Martins were tenants at will, describing them as such in a notice to terminate dated 9 July 1994.  Meanwhile, the Martins had initiated a second action in the Supreme Court, claiming that their entitlement to the property arose from two mortgages given by Individual Homes, as mortgagor, to each of them as mortgagees; that, upon the company’s default, they had each lodged a caveat on the relevant certificate of title; and that Mr Martin had assumed adverse possession on 15 June 1989, and Mrs Martin, on 6 March 1990.  Individual Homes (in liquidation) began a separate action, seeking orders for the removal of the caveats and for vacant possession of the property.

8                     Both Supreme Court actions were heard together by Gallop J, who delivered judgment on 4 March 1997.  His Honour gave judgment for Individual Homes, ordered that the caveats be removed, declared that the two alleged mortgages between Individual Homes and each of the Martins were void, and declared that the company was entitled to vacant possession of the property.  Amongst other things, his Honour held that the mortgages upon which the Martins based their claim were “a ruse or device to defeat the rightful claims of the [Commonwealth Development Bank] and the CBA”.  His Honour further held that Mrs Martin was not the beneficial owner of the property, “but rather a creditor of the defendant pursuant to loans made by her to the defendant so that a ‘proto-type’ display home could be built”.

9                     On 24 April 1998, a Full Court of this Court (O’Loughlin, Whitlam and Finn JJ) dismissed most of the Martins’ appeal against the decision of Gallop J, although it set aside his Honour’s order declaring that Individual Homes was entitled to vacant possession.  This was because of a submission, which had not been raised at first instance, that Individual Homes should be taken to have given the Martins a tenancy at will.  The Court expressed the view that, if there were a tenancy at will, it would fall within the definition of “lease” in s 8(1) of the Landlord and Tenant Act 1949 (ACT).  In this event, by virtue of that Act, Individual Homes would be obliged to bring proceedings for possession in the Magistrates’ Court.  The Court recognised, however, that the findings of the trial judge made it arguable that the Martins had, by their own acts, determined any such tenancy and, in consequence, they may have become tenants at sufferance.  In order to recover possession from them as tenants at sufferance, Individual Homes would be obliged to maintain an action for ejectment in the Supreme Court.  It was for these reasons that the Court held that it could not be “satisfied that the Supreme Court had jurisdiction to make an order for possession of the premises”.  The Martins’ application for special leave was subsequently denied by the High Court.

10                  For present purposes, it is unnecessary to set out in any detail the circumstances surrounding the numerous informations laid by Mr Martin against various people, including Mr Taylor, although Mr Martin mentioned them on the hearing of the appeal.  The informations have all been stayed or dismissed.  On 2 October 1992, a magistrate ordered that Mr Martin not file any further process in the Magistrates’ Court without leave.  That order culminated in a largely unsuccessful appeal to yet another Full Federal Court and a third unsuccessful application for special leave to the High Court. 

11                  Meanwhile, Individual Homes renewed its efforts to obtain possession of the property.  By a letter dated 27 April 1998, it informed the Martins that it intended to take further steps, this time under the Landlord and Tenant Act.  The company then gave a Notice to Quit dated 18 May 1998, purporting to terminate the claimed tenancy at will.  The Martins did not deliver possession of the property to the company.

12                  The Landlord and Tenant Act was repealed by the Residential Tenancies (Consequential Provisions) Act 1998 (ACT) on 25 May 1998 and replaced, in substance, by the Residential Tenancies Act 1997 (ACT) (“the RT Act”).  The effect of this legislative change was to shift jurisdiction over certain tenancy disputes from the Magistrates’ Court to the newly established Residential Tenancies Tribunal (“the RTT”). 

13                  On 24 December 1998, Individual Homes applied to the RTT for a termination and possession order under s 47 of the RT Act.  The Tribunal heard the application on 12 March 1999 and reserved its decision.  On account of the subsequent proceedings (outlined below), as at the date when this appeal was heard, the Tribunal had not yet given its decision.  The Martins submitted at the RTT hearing that the Tribunal lacked jurisdiction over the dispute.  In an affidavit sworn on 31 March 1999, Mr Martin deposed that:

[T]owards the very conclusion of the hearing … [the Martins were] advised that the Tribunal would not refer the points of law, including the question of jurisdiction, raised by the plaintiffs to the ACT Supreme Court under sections 124 & 125 of the ACT Residential Tenancies Act 1997.  The Tribunal’s view was that the question of jurisdiction and points of law could, if desired, go on appeal after the decision of the Tribunal and or a Writ of Eviction of the Tribunal. 

On 16 March 1999, shortly after the RTT hearing, the Martins filed an originating application in the Supreme Court, seeking what they described as “Rulings on … points of law” and naming Individual Homes and its liquidator as defendants.  By notice of motion dated 23 March 1999, Individual Homes and its liquidator sought to have the Martins’ application set aside.  The primary judge heard the matter on 1 April 1999.  In broad terms, the Martins submitted that the winding up of Individual Homes should be terminated; that the RTT had no jurisdiction over the property dispute; and that Individual Homes was not, in any event, entitled to possession until it had paid them the value of the improvements that they had allegedly made upon the property.  Judgment was delivered on 27 May 1999.  This is the subject of the present appeal.  Briefly, the Martins’ submissions were all rejected, save one.  The primary judge found, as the Martins submitted, that the RTT had no jurisdiction over the alleged tenancy at will between them and Individual Homes.

the primary judge’s decision of 27 may 1999

14                  In their originating application, the Martins had sought relief described as “Decisions on … points of law”.  The six “rulings” or “decisions” sought were as follows:

1.      Whether the plaintiffs’ implied tenancy at will on 8 Grund Place Kambah commencing on the 23^rd of October 1979 is paramount or to have priority, under sections 58(1)(d) and 85(1) of the ACT Land Titles Act1925, over the second named defendant’s registration as proprietor of 8 Grund Place Kambah on the 27^th of November 1979.

2.      Whether the first and or the second defendant is entitled to a Writ of Possession until the first and or second defendant pays into Court for the use of the plaintiffs the value of the improvements done by the plaintiffs on the said 8 Grund Place Kambah, namely the sum of dollars $270,000 in accordance with sections 58(1)(d), 85(1), 89, 152, 153 and 154(1)(b) & (c) of the Australian Capital Territory Land Titles Act 1925.

3.      Whether the winding up order of this Honourable Court of the 4^th of May 1994 against the second named defendant should be terminated under section 482(1) of the Corporations Law.

4.      Whether the Residential Tenancies Tribunal of the Australian Capital Territory has jurisdiction under sections 4(2)(a) and 115 of the Residential Tenancies Act 1997 and section 70 of the ACT Landlord and Tenant Act 1949, to hear the application numbered RT615 of 1998 dated the 24^th of December 1998 (based on the Notice to Quit dated the 18^th of May 1998) by the second named defendant for a writ of possession of 8 Grund Place Kambah in the Australian Capital Territory against the plaintiffs.

5.      Whether the application in action R615 dated the 24^th of December 1998 mentioned above under item 4, has any legal foundation.

6.      Whether action RT615 dated the 24^th of December 1998 mentioned above under item 4 is statute barred under section 11(1) of the Australian Capital Territory Limitation Act 1985.

As earlier mentioned, Individual Homes and its liquidator subsequently moved for an order that “the Originating Application dated 16 March 1999 in this matter be set aside”. 

15                  The primary judge did not, however, set aside the originating application, as the defendants, the present respondents, urged.  Instead, his Honour answered the Martin’s first five questions in the negative.  His Honour held, in response to the first question, that no issue could arise as to the effect of either s 58(1)(d) or s 85(1) of the Landlord and Tenant Act, as neither was capable of applying in the circumstances of the case.  His Honour rejected the Martins’ submissions on the second question, noting that they “have provided no evidence that, as tenants, they have made any improvements to the property”.  Similarly, the primary judge rejected the claim that the winding up should be terminated pursuant to s 482(1) of the Corporations Law, since the Martins had failed to adduce evidence establishing that they (and certain family members) were, as they alleged, the only parties (other than the company) who were affected by the winding-up.

16                  In upholding the Martins’ submission that the RTT had no jurisdiction over the application made to it by Individual Homes, his Honour said at [57-59]:

[T]he tenancy at will alleged in these proceedings is not itself a ‘residential tenancy agreement’ within the meaning of the RTA any more than it would have been a ‘lease’ for the purposes of the L&TA. 

The tenancy alleged by the defendants was not a tenancy granted ‘for value’, nor is it established that it was granted pursuant to an ‘agreement’, express or implied, with the plaintiffs.  It would be entirely inappropriate for such an arrangement to be subject to ‘prescribed terms’ or to be terminable only in accordance with s 36.

The Tribunal is a body of limited jurisdiction.  It has no general power to make orders for possession of premises where the right to possession does not arise out of the termination of a residential tenancy agreement.  It has no power to order possession in the circumstances alleged by the second defendant in the proceedings before the Tribunal.

Having held that the RTT had no jurisdiction over the dispute, his Honour found it unnecessary to decide the sixth question.  His Honour made no formal order upon the defendants’ strike-out motion but, having regard to his judgment, he must be taken to have rejected it. 

17                  By a notice of appeal dated 17 May 1999, the Martins appealed against his Honour’s decision.  There was no cross-appeal by Individual Homes and its liquidator.  The primary relief sought by the Martins, by their notice of appeal, was the termination of the winding-up of Individual Homes.  In the alternative, they sought to have the judge’s “rulings” on questions one, two and three set aside.  They also sought certain other relief.  The primary ground upon which they relied was that “Orders 1 to 6 and the reasoning of the Learned Judge were made without a hearing”.  They also submitted that, for various reasons, the challenged parts of the decision were wrong in law.

18                  At the hearing of the appeal, the Martins at one stage resiled from their primary position that this Court should consider terminating the winding-up, because there was, as both sides agreed, an application to terminate the winding-up then before the primary judge in the Supreme Court.  Notwithstanding that they had made such an application in the Supreme Court, the Martins ultimately returned to their original position, namely, that this Court should terminate the winding-up of Individual Homes.  Counsel for the respondents stated that the respondents would, if it were appropriate, consent to the Court dealing with this matter.  For the reasons set out below, the Court declines to accept this invitation. 

the incompetency of the primary proceedings

19                  During the hearing of the appeal, the Court sought to identify jurisdictional and procedural bases for the proceeding before the primary judge.  That matter was not expressly addressed at first instance.  As will become plain, the appeal does not succeed because the appellants have made out a ground of appeal, but because the proceeding at first instance was incompetent. 

Jurisdiction of the Supreme Court

20                  The Supreme Court was established by s 6 of the Seat of Government Supreme Court Act 1933 (Cth).  The extent of the Court’s jurisdiction at that time is helpfully described in Mossop, “The Judicial Power of the Australian Capital Territory” (1999) 27 Federal Law Review 19 at 20.  By virtue of the Australian Capital Territory (Self Government) Act 1988 (Cth) (“the Self Government Act”) and the ACT Supreme Court (Transfer) Act 1992 (Cth), the jurisdiction of the Supreme Court forms the subject of Part VA of the Self Government Act.  Section 48A of the Self Government Act provides for a superior court of general jurisdiction in relation to the Australian Capital Territory.  Section 20 of the Supreme Court Act 1933 (ACT), which substantially mirrors s 48A of the Self Government Act, provides as follows:

(1)    The Court has the following jurisdiction:

(a)     all original and appellate jurisdiction that is necessary to administer justice in the Territory;

(b)     jurisdiction conferred by a Commonwealth Act or a law of the Territory.

(2)    Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the Court is not bound to exercise its powers where it has concurrent jurisdiction with another court or tribunal.

The jurisdiction of the Supreme Court is circumscribed by various considerations, including the requirements of the administration of justice.  That obliges proceedings to be heard and determined in conformity with the governing law, whether the common or statute law, or the Rules of the Supreme Court made under statute or otherwise. 

The nature of the Martins’ originating application

21                  The Martins’ originating application raised at least three distinct matters.  These were (1) the nature of the rights, if any, which they enjoyed in respect of the property; (2) the continued justification for the winding-up order over Individual Homes; and (3) the RTT’s jurisdiction over the parties’ property dispute.

22                  By the end of the hearing of the appeal, the respondents’ counsel had adopted the position that the jurisdiction conferred by s 20 of the Supreme Court Act 1933 was sufficient to support the proceeding at first instance.  He submitted that it would have been open to the primary judge to treat pars 4 to 6 of the originating application as an “informal” application for either a writ of prohibition or for declaratory relief, and to treat pars 1 to 3 as applications for declaratory relief.  I turn first to pars 4 and 5, concerning the RTT’s jurisdiction over the parties’ property dispute. 

An application for a writ of prohibition?

23                  The jurisdiction of the RTT, which was established by s 110 of the RT Act, is defined in s 115 of that Act.  More importantly, for present purposes, provision is made in Part VIII for “Referrals and Appeals to Supreme Court”:  see ss 124 - 126.  The parties agreed that, at the RTT hearing, the Martins had unsuccessfully sought to persuade the Tribunal to refer a question of law as to its jurisdiction to the Supreme Court pursuant to s 124 of the RT Act.  The respondents’ counsel initially relied on that provision to support the primary judge’s power to deal with the fourth and fifth questions on the originating application. 

24                  Section 124 of the RT Act provides:

The Tribunal may, of its own motion or on application by a party, refer a question of law to the Supreme Court if it considers that the question raises an issue of public importance.

Plainly enough, as the respondents’ counsel himself came to acknowledge, that provision cannot avail the parties in this case because the Tribunal has made no reference. 

25                  Section 34B of the Supreme Court Act 1933 confers upon the Supreme Court power to grant “any relief or remedy by way of a writ of … prohibition”, or to make an order to like effect in “proceedings in the Court for any relief or remedy” of that kind.  Order 55 of the Supreme Court Rules provides for the manner in which an application for a writ of prohibition is to be made, and the procedure to be observed in securing relief.  In particular, O 55 r 1(1) provides that an application “shall be, in the first instance, for an order calling on the parties interested in resisting the application to show cause why the writ should not be issued”.  Although the Tribunal would have been an interested party within the meaning of the rule, it was neither made subject to an order calling upon it to show cause nor was it invited, even informally, to be heard upon the matter of its jurisdiction.  Moreover, what the primary judge ultimately did upon the originating application bore no resemblance to any relief that might have been granted upon an application for a writ of prohibition.  The primary judge neither directed the issue of a writ of prohibition to the Tribunal nor did he make an order to like effect.  We reject the respondents’ submission that pars 4 and 5 of the originating application were treated, or were capable of being treated, by the primary judge as an application for a writ of prohibition. 

26                  The primary judge did not answer the question raised by par 6 of the originating application.  The parties made no specific submissions about that paragraph on appeal.  For the reasons already given in relation to pars 4 and 5, par 6 was also incapable of being treated as an application for a writ of prohibition. 

Applications for declaratory relief?

27                  Pursuant to O 29 r 5 of the Supreme Court Rules, the Supreme Court has power to make binding declarations of right, whether or not any consequential relief is sought.  There need not be a cause of action:  see Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536 at 572.  Courts will not grant declaratory relief, however, where the issue is not real but theoretical:  see Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448; Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; Oil Basins Ltd v Commonwealth (1993) 178 CLR 643 at 649; and Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd (1998) 193 CLR 154 at 172.  A case is not “real”, for this purpose, when the issue to be determined is divorced from the facts to which it relates.  A general declaration “in air”, unrelated to specific facts, will not necessarily resolve the dispute between the parties.  If the facts turn out to be different from the assumed factual basis of the declaration, then the declaration will resolve nothing:  cf Zamir and Woolf, The Declaratory Judgment (2^nd ed, 1993) p 132. 

28                  The respondents’ counsel informed us that the primary judge had “a mountain of material” before him.  There were, however, no facts expressly alleged by the Martins in their application about which his Honour was invited to make findings.  Moreover, this was not a case in which the parties were asking a court to resolve a dispute upon the basis of an agreed statement of facts.  As the respondents’ counsel observed, some matters of fact or mixed fact and law are assumed in the Martins’ questions.  This does not overcome the difficulty that most of the “rulings” sought in those questions were essentially rulings “in air”.  For this reason, it was not open to the primary judge to treat the first, second and third questions raised by the Martins on their originating application as informal, though properly constituted, applications for declaratory relief.

29                  The inutility of any attempt to give judicial answers to the Martins’ questions is illustrated by the first question.  That question assumed that the Martins had the benefit of a tenancy at will.  On appeal, the respondents contended that the Martins had conceded before the primary judge that they had occupied the property upon that basis.  The terms of the question and the statements made by the Martins in their written submissions at first instance provide some support for this position.  On appeal, however, Mr Martin denied both that he and his wife had made any such concession and that they had been in possession of the property as tenants at will.  In his reasons for judgment, his Honour referred only to a concession made by the defendants (the respondents on appeal) concerning the tenancy at will, not to any equivalent concession by the Martins.  He made no finding in that latter regard. On the contrary, referring to an affidavit that had been sworn by Mr Martin in opposing the respondents’ strike-out motion, his Honour said, at [4]:

It is not clear what, if any, express agreement there had been between the plaintiffs and the second defendant to authorise their occupation of the premises prior to the winding-up.

Bearing in mind the Martins’ lack of legal representation and the irregular nature of the proceeding, it would be inappropriate for this Court to find that the Martins had made a concession of the kind for which the respondents now contend.  Indeed, the stance adopted by Mr Martin on this appeal emphasises the wisdom of the courts in declining to answer questions “in air”. 

30                  There is a similar difficulty with the Martins’ second question.  There was, as his Honour noted at [33], “no evidence that, as tenants, they have made any improvements to the property”.  Critically, in the present context, the respondents had not, prior to the delivery of the primary judge’s decision, initiated any proceeding in the Supreme Court for possession of the property that might have resulted in a writ of possession.  At the time the matter came before his Honour, the second question did not arise. 

31                  So far as one can tell, there were no facts alleged on the originating application (or agreed between the parties) which could have given rise to the third question, although the basis for an application under s 482(1) of the Corporations Law may have appeared in the Martins’ submissions.  That is, in the case of the third question, as in the case of the first and second questions, there were insufficient facts alleged or agreed to support an application for declaratory relief and to permit the originating application to be so characterised. 

32                  There were, it seems, sufficient uncontested facts before the primary judge to give rise to the fourth, and perhaps the fifth, questions.  (The primary judge treated the fifth question as covering the same ground as the fourth.)  These questions attract other considerations.  In any application for declaratory relief concerning the jurisdiction of the RTT, a question would necessarily have arisen as to the availability or appropriateness of such relief.  This is because of the provisions of Part VIII of the RT Act, which provide for the referral and appeal of questions of law to the Supreme Court: contrast Forster v Jododex at 438-439.  A declaration binds only the parties to the proceeding (save in the case of a representative action): see Australasian Oil Exploration Ltd v Lachberg (1958) 101 CLR 119 at 133-134.  In this case, as we have seen, the RTT is not a party to the proceeding.  In any application for declaratory relief, it might perhaps be assumed that the Tribunal would abide by any declaration made.  Nonetheless, the RTT would need to be given an opportunity to be heard.  There were other matters too that, in the circumstances of the case, would need to be considered before any grant of declaratory relief at the Martins’ behest was made, such as the fact that the RTT had not yet made its decision on the question of jurisdiction.

33                  None of these matters were considered by his Honour, and his Honour’s reasons for judgment give no indication that he was treating the Martins’ application as an application for declaratory relief. The strike-out motion was brought, so the respondents’ counsel said, chiefly upon the grounds that the Martins had not obtained leave pursuant to s 471B of the Corporations Law and that leave ought not, in the circumstances, to be given.  (That submission was specifically rejected by his Honour, who granted leave.)  The motion was also sought by the respondents upon the bases that the proceeding was “merely an attempt to further delay the liquidation”; there was no cause of action or question of law that was not res judicata or otherwise incapable of being dealt with by the court; and the proceeding was an abuse of the process of the court.  But as the respondents’ counsel properly conceded, none of the parties’ submissions at first instance addressed the availability of declaratory relief.  There was no discussion about whether it was open to the Court to regard the Martins’ application in this way.  Bearing this in mind, it is scarcely surprising that his Honour did not turn his mind to any of the matters that he would have been bound to consider if he were treating the Martins’ originating application as an application for declaratory relief.  In this circumstance, it is not open to this Court, on appeal, to accept such a characterisation of the application and to turn its mind, for the first time in this litigation, to the matters that would necessarily fall for consideration.  In any event, it is doubtful whether, in the circumstances of the case, it would have been open to the primary judge to determine that declaratory relief was available.  (No facts were alleged in the originating application to give rise to the sixth question and, in consequence, for that reason and the others just mentioned, it too was incapable of being characterised as a declaratory relief application.)

34                  We have not overlooked the fact that the Martins’ application concerned various disparate matters, but, in view of the conclusion already reached, it is unnecessary to consider this aspect further.  It is enough to say that, for the reasons already given, we reject the parties’ submission that the originating application gave rise to a competent proceeding.  The proceeding was incompetent and, as such, ought to have been dismissed by the primary judge.

the martins’ grounds of appeal

35                  Save for the Martins’ allegation that the primary judge failed to afford them a hearing, it is unnecessary and, indeed, inappropriate to discuss the grounds of appeal which they advanced.  The parties provided this Court with the transcript of the hearing at first instance, together with the written submissions and affidavit material on which they relied.  This material shows that, at the time of the hearing, Mr Martin, who represented himself and his wife, was well familiar with all the issues that the parties were inviting his Honour to determine, and that they were afforded a good and sufficient opportunity to be heard concerning them.

36                  When the Court first inquired as to the competency of the proceeding below, Mr Martin submitted that he had not anticipated discussing the matter on the hearing of the appeal.  If, however, the proceeding is incompetent, then the Court has a duty to say so.  It cannot, by reason of the parties’ consent, treat the proceedings as competent and within jurisdiction, when they are not.  The Court raised its concerns early on the hearing day and the hearing was subsequently largely devoted to seeking to dispel them.  The appellants were given a full opportunity to be heard and, in the course of the day, were referred to the relevant legislative provisions.  Nothing said on either side supports the proposition that the proceeding was competent. 

disposition of the appeal

37                  If the proceeding before the primary Judge was incompetent, did an appeal lie to this Court?  The Court exercises an appellate jurisdiction in the Australian Capital Territory pursuant to s 24(1)(b) of the Federal Court of Australia Act 1976 (Cth).  Section 24(1)(b) provides that:

[T]he Court has jurisdiction to hear and determine:

…

(b)   appeals from judgments of the Supreme Court of a Territory.

A judgment is defined by s 4 to mean “a judgment, decree or order, whether final or interlocutory, or a sentence”.  It is well accepted that “a judgment must be binding upon parties and definitive of their legal rights and … a judgment is the formal order whereby a court deposes of the matter before it”:  Ah Toy v Registrar of Companies (NT) (1985) 10 FCR 280 at 286.

38                  The only decision that the primary judge could have made in this case was that the proceeding was incompetent, and the only order (save as to costs) open to him was to dismiss the proceeding.  In purporting to rule on the questions raised by the Martins, his Honour decided, erroneously, that the proceeding was competent.  The rulings and the costs order that resulted are, until set aside, “binding upon the parties and definitive of their legal rights”.  This is because the Supreme Court is a superior court of record:  see Supreme Court Act 1933, s 3(2) and Robins v Incentive Dynamics Pty Ltd (1999) 91 FCR 423 at 429.  The rulings and costs order have been entered as a judgment of the Court pursuant to which his Honour purported to dispose of the matters before him. 

39                  The Full Court in Robins accepted, at 430, that pursuant to s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth), this Court has appellate jurisdiction to hear and determine a challenge to the jurisdiction of a judge purporting to exercise the original jurisdiction of the Court.  The Court stated, at 430:

This view of the effect of s 24(1) is consistent with the general proposition that a court can exercise its appellate jurisdiction to set right an error, including a wrongful assertion of jurisdiction:  Ah Yick v Lehmert (1905) 2 CLR 593 at 601 per Griffiths CJ; Chamberlain v The Queen (No. 2) (1984) 153 CLR 521 at 529 per Gibbs CJ and Mason J.

As the remarks of Gibbs CJ and Mason J in Chamberlain’s Case make clear, the jurisdiction conferred by s 24(1)(b) stands in no different position.  Their Honours said, at 529:

The grant of a general appeal by s 24(1)(b) of the Federal Court of Australia Act was intended to enable the Full Court of the Federal Court to ‘entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous’:  cf Ah Yick v Lehmert (1905) 2 CLR 593 at p 601.

40                  The appeal should be allowed and the decision of the primary judge, including his rulings, set aside and, in lieu thereof, the proceeding commenced by the Martins against the respondents should be dismissed as incompetent.  There should be no order as to costs at first instance or on appeal.

Associate:

Date:  27 July 2000