"440 s/ CATCHWORDS PRACTICE - application of State legislation by Federal Court s.79 Judiciary Act - s.371(2) Companies (Queensland) Code leave of Supreme Court required before continuation proceedings in Federal Court. Judiciary Act 1903 (Cth.) s.79 Companies Companies (Queensland) Code s.371(2) Edwin Kerry Collins v. Update Marketing Pty. Ltd. & Anor. Qld G26 of 1987 PINCUS J. BRISBANE 19 AUGUST 1987 C AiSC 1937 fa TAL GOUaT OF yaa CoN PAL TRY kts of " IN_THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G26 of 1987 GENERAL DIVISTON ) BETWEEN: EDWIN KERRY COLLINS Applicant AND: UPDATE MARKETING PTY. LTD. First Respondent AND: ARTHUR JOHN THOMAS HIVON Second Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 19 AUGUST 1987 WHERE MADE: BRISBANE THE COURT ORDERS THAT: The application for judgment be adjourned to a date to be fixed by the Registrar. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN _THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G26 of 1987 GENERAL DIVISION ) BETWEEN: EDWIN KERRY COLLINS Applicant AND: UPDATE MARKETING PTY. LTD. First Respondent AND: ARTHUR JOHN THOMAS HIVON Second Respondent PINCUS J. 19 AUGUST 1987 REASONS FOR JUDGMENT This is an application for judgment in default of defence. The applicant has brought proceedings against two respondents, the first of which is a company which has recently been placed in liquidation. Prior to that it had made default in filing its defence, and Mr. Galloway of counsel has appeared to ask for judgment. Counsel, however, has raised the question whether the provisions of s.371(2) of the Companies (Queensland) Code are a bar to the application. That provision reads as follows: "Where an order has been made for the winding up of a company, or a provisional liquidator has been appointed in respect of a company, no action or other civil proceeding may be commenced or proceeded with against the company except - (a) by leave of the Court; and (b) in accordance with such terms as the Court imposes." In L. Grollo & Co. Pty. Ltd. v. Nu-statt Decorating Pty. Ltd. (No. 2) (1980) 47 F.L.R. 44, Smithers J. ordered a stay of proceedings brought in this Court against a company in liquidation, holding that s.79 of the Judiciary Act 1903 (Cth.) made the provisions of s.263(2) of the Companies Act 1961 (Vic.) applicable; its terms are very similar to those of s.371(2) of the Companies (Queensland) Code. That case was followed by Toohey J. in Seymour v. Southern Districts Video Pty. Ltd. (1985) 59 A.L.R. 154. His Honour pointed out that the basis of the decision of Smithers J. was that the relevant State provision applied "not by force of State legislation but by force of federal legislation viz. s.79 of the Judiciary Act" (p.157). Insofar as s.371(2) inhibits commencement and pursuit of proceedings in court, 1t 1s not a State law which refers explicitly to a particular State court - see per French J. in Bond Corporation Pty. Ltd. v. Thiess Contractors Pty. Ltd. (1987) 71 A.L.R. 125 at p.139; it is one of the same character, in my view, as the Commercial Arbitration Act 1985 (W.A.) there dealt with by his Honour, i.e. it "applies to courts generally, although as a matter of construction it would be limited in its direct application to" Queensland courts. Of course, the "Court" mentioned in s.371(2) as having power to give leave is a State court, the Supreme Court: see cl.3 of Sch.1 of the Companies and Securities (Interpretation an@ Miscellaneous Provisions) (Application of Laws) Act 1981 (Q.). Reference was made during the hearing to the inconvenience and expense caused the applicant by the need to go to the Supreme Court for leave to pursue this matter and to the prospect that the proposed cross-vesting legislation would prevent a recurrence of this sort of incident. Mr. Galloway also referred to the possibility that this court might have accured jurisdiction to grant leave, but he did not argue positively that there is such jurisdiction. Following the decisions of Smithers J. and Toohey J., to which I have referred, I hold that leave of the Supreme Court is necessary and adjourn the application for judgment to a date to be fixed by the Registrar. { certify that this ond the xX receding A Fylna 37S for pages sre a tru2 col. 9 > s af bare FIOMNOUr judgment roveny oF t's riono