AG Cowley Holdings Pty Ltd v Central City Pty Ltd [2010] FCA 199 (3 March 2010)

Last Updated: 12 March 2010

FEDERAL COURT OF AUSTRALIA

AG Cowley Holdings Pty Ltd v Central City Pty Ltd [2010] FCA 199

Citation:		AG Cowley Holdings Pty Ltd v Central City Pty Ltd [2010] FCA 199
Parties:		AG COWLEY HOLDINGS PTY LTD and ALAN GUY COWLEY v CENTRAL CITY PTY LTD and GUISEPPE DIEGO SCAFFIDI
File number:		WAD 248 of 2008
Judge:		BARKER J
Date of judgment:		3 March 2010
Catchwords:		HIGH COURT AND FEDERAL COURT - Jurisdiction - Federal Court - whether claims are part of one "matter" or arise out of the same substratum of fact - whether Federal Court has jurisdiction to enforce agreement comprising action – enforcing compromise where parties to proceeding are different to parties to agreement
Legislation:		Federal Court of Australia Act 1976 (Cth) s 22, s 23, s 32 Judiciary Act 1903 (Cth) s 39B(1A)(c) Federal Court Rules 1979 (Cth)
Cases cited:		Darling Downs Investments Pty Ltd v Eldwood (1988) 18 FCR 510 ENCL Pty Ltd v Esanda Finance Corporations Pty Ltd [1999] FCA 978 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 LNC Industries v BMW (1983) 151 CLR 575; [1983] HCA 31 Macteldir Pty Ltd v Dimovski (2003) 132 FCR 492; [2003] FCAFC 228 Macteldir Pty Ltd v Dimovski (2005) 226 ALR 773; [2005] FCA 1528 Pallas v Finlay (1985) 61 ALR 220 Re Wakim; Ex Parte McNally (1999) 198 CLR 511; [1999] HCA 27 Roberts v Gippsland Agricultural and Earthmoving Co Pty Ltd [1956] VLR 555 We Two Pty Ltd v Shorrock (2005) 220 ALR 749; [2005] FCA 934
Date of hearing:	3 March 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	49
Counsel for the Applicants:	Mr MD Cuerden
Solicitor for the Applicants:	Ilberys Lawyers
Counsel for the Respondents:	Ms NN Oldfield
Solicitor for the Respondents:	Oldfield Legal

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 248 of 2008

BETWEEN:

AG COWLEY HOLDINGS PTY LTD (ACN 107 962 818) First Applicant ALAN GUY COWLEY Second Applicant

AND:	CENTRAL CITY PTY LTD (ACN 076 750 055) First Respondent GUISEPPE DIEGO SCAFFIDI Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	3 MARCH 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The respondents do jointly and severally pay the applicants the sum of $100,000 together with interest thereon at the rate of 6% per annum from the following dates:

1.1 As to $50,000 thereof, from 29 December 2009.

1.2 As to the remaining $50,000, from 29 January 2010.

2. For the avoidance of any doubt, order 1 is in addition to and does not affect the liability of Lisajoe Investments Pty Ltd (‘Lisajoe’) pursuant to paragraph 1(b) of the deed of release and settlement dated 19 June 2009 nor does it affect the second respondent’s liability as guarantor of Lisajoe’s obligations thereunder pursuant to paragraph 1(c) of that deed.
3. The respondents to jointly and severally pay the applicants’ costs of these proceedings incurred after 29 December 2009 insofar as those costs would not have been incurred if the respondents had complied with the terms of the deed of release and settlement dated 19 June 2009.
4. The applicants otherwise have leave to discontinue these proceedings and the proceedings be and are hereby discontinued with no orders as to costs (save for the costs the subject of order 3 herein).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 248 of 2008

BETWEEN:

AG COWLEY HOLDINGS PTY LTD (ACN 107 962 818) First Applicant ALAN GUY COWLEY Second Applicant

AND:	CENTRAL CITY PTY LTD (ACN 076 750 055) First Respondent GUISEPPE DIEGO SCAFFIDI Second Respondent

JUDGE:	BARKER J
DATE:	3 MARCH 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

NOTICE OF MOTION

1. By amended notice of motion filed with the leave of the Court on 3 March 2010, the applicants moved the Court for orders that:
   1. The respondents do jointly and severally pay the applicant the sum of $100,000 together with interest thereon at a rate of 6% per annum from the following dates:
      1. as to $50,000 thereof, from 29 December 2009; and
      2. as to the remaining $50,000, from 29 January 2010.
   2. For the avoidance of any doubt, order 1 is in addition to and does not affect the liability of Lisajoe Investments Pty Ltd (‘Lisajoe’) pursuant to paragraph 1(b) of the deed of release and settlement dated 19 June 2009 nor does it affect the second respondent’s liability as guarantor of Lisajoe’s obligations thereunder pursuant to paragraph 1(c) of that deed.
   3. The respondents to jointly and severally pay the applicants’ costs of these proceedings incurred after 29 December 2009 insofar as those costs would not have been incurred if the respondents had complied with the terms of the deed of release and settlement dated 19 June 2009.
   4. The applicants otherwise have leave to discontinue these proceedings and the proceedings be and are hereby discontinued with no orders as to costs (save for the costs the subject of order 3 herein).
2. Following consideration of written submissions filed on behalf of the parties and the oral submissions of counsel for the parties, I made orders in terms of the amended notice of motion and indicated that I would subsequently provide detailed written reasons for doing so. These are those reasons.

ENFORCEMENT OF SETTLEMENT AGREEMENT

3. In this proceeding the applicants initially claimed that in about 2004 they invested monies in the Barrack Plaza building project then being undertaken by the first respondent on the basis of certain representations made to the second applicant by the second respondent and first respondent. The applicants said a dispute then arose between the parties with respect to the entitlements of the applicant following completion of the Barrack Plaza project in approximately July 2006. In the proceeding the applicants alleged that the first respondent was in breach of contract, had engaged in misleading or deceptive conduct and had failed to pay monies due and owing to the applicants. The applicants also alleged that the second respondent had engaged in misleading or deceptive conduct. The respondents defended the proceedings and denied the allegations made.
4. On 5 February 2009, following mediation and settlement discussions the parties agreed to compromise the proceeding and any other liabilities they may have had arising out of the proceeding on terms recorded in a handwritten agreement signed by or on behalf of the parties. The handwritten agreement was stated to be immediately binding. The parties subsequently recorded the terms of the compromise and agreement in a formal Deed of Release and Settlement (the deed) which was executed by them on 19 June 2009.
5. By the terms of the deed the respondents and another entity, Lisajoe Investments Pty Ltd (Lisajoe Investments), agreed as follows:

(a) The respondents jointly and severally agreed to pay the applicants by stipulated instalments the sum of $600,000, the final $300,000 to be by way of monthly instalments of not less than $50,000.

(b) Lisajoe Investments was obliged to transfer to the applicants or their nominee a property in Cloverdale, with the settlement date for the transfer stipulated to be 30 November 2009.

(c) The second respondent guaranteed all of the obligations of Lisajoe Investments under clause 1(b) of the deed in terms of (b) above.

6. As it has transpired, $500,000 of the $600,000 has been paid to the applicants pursuant to the deed but two $50,000 instalments due in December 2009 and January 2010 have not been paid.
7. Further, while there is no formal affidavit evidence of this fact, it is commonly agreed between the parties and acknowledged by counsel for the respondents that Lisajoe Investments has not yet transferred the Cloverdale property to the applicants in accordance with the deed despite demand having been made.
8. In these circumstances, the primary proceeding in this Court having not yet been terminated by any formal order of the Court, the applicants move for orders in effect for enforcement of the deed.
9. However, the respondents contend that, in the circumstances of this case and while these factual circumstances are not in dispute, the Court lacks jurisdiction to make the orders sought in the amended notice of motion.

RESPONDENTS’ SUBMISSIONS

10. The respondents refer to the fact that the deed includes a party, Lisajoe Investments, which is not a party to this proceeding. For that reason, the respondents submit that it is not open to the Court to make orders on the applicants’ notice of motion. The respondents contend that if the Court were to accede to the applicants’ notice of motion, there would be enforcement of the respondents’ obligations to the applicants under the deed, but not of the obligations of Lisajoe Investments to the applicants and that this would result in an unjust or inconvenient outcome or procedure. In short, the respondents say that all questions regarding the enforcement of the deed ought to be heard together in the one forum.
11. The respondents appear to accept that the Federal Court of Australia is not the correct forum for a proceeding by way of enforcement of the deed against Lisajoe Investments and submit that there ought to be a single proceeding concerning enforcement of all aspects of the deed in the Supreme Court of Western Australia.
12. Another argument previously identified in the written submissions of the solicitors for the respondents concerning the implication of certain qualifications to notice of default provisions in the deed were expressly abandoned by counsel for the respondents on the hearing of the notice of motion, in light of the amendments made by the applicants to the original notice of motion, and so need not be considered.

APPLICANTS’ SUBMISSIONS

13. Counsel for the applicants contends that it is well established that the Court has the power to summarily enforce a compromise within an existing proceeding and that the respondents advance no substantive defence to the enforcement action. Accordingly, the Court should make the orders sought.
14. Counsel for the applicants nonetheless accepts that having regard to authority it is not open to the Court to make any orders in respect of Lisajoe Investments which, while a party to the deed, are not a party to this proceeding. For that reason the applicants have carefully avoided seeking any relief in the enforcement of the deed against that entity.
15. Counsel for the applicants notes that it remains open to the applicants to move in a court of competent jurisdiction, such as the Supreme Court of Western Australia, for orders by way of enforcement of the deed in relation to the obligations of Lisajoe Investments in respect of the Cloverdale property.
16. Counsel for the applicants contends that, just as there would be no difficulty, if this Court were properly appraised of an enforcement proceeding in respect of the obligations of the applicants and Lisajoe Investments, and determined that the payment obligations of the respondents should be the subject of an immediate order but that the obligations of Lisajoe Investments in respect of the property should be adjourned to a trial, having regard to any relevant issues raised, so it is open to the Court now to deal in a summary way with the notice of motion brought in respect only of the payment obligations of the respondents under the deed.
17. In accordance with established practice, the applicants rely on the lower rate of interest of 6% per annum prescribed in the Western Australian Supreme Court, rather than the 10.5% per annum prescribed under the Federal Court Rules 1979 (Cth): see, for example, ENCL Pty Ltd v Esanda Finance Corporation Pty Ltd [1999] FCA 978 at [59].
18. The applicants seek an order in terms of [2] of the notice of motion so as to avoid any suggestion that the applicants’ rights against Lisajoe Investments and the second respondent under the deed might otherwise merge in the judgment sought in [1] of the notice of motion.
19. The applicants contend that the Court has no power to join Lisajoe Investments as a party for the purpose of summarily enforcing the compromise.

CONSIDERATION

20. This Court has jurisdiction to enforce the terms of an agreement made to settle or compromise an action which has been properly instituted in this Court. While there may once have been some uncertainty about that proposition, it is now well settled. See for example: Pallas v Finlay (1985) 61 ALR 220 (Pallas); Darling Downs Investments Pty Ltd v Elwood (1988) 18 FCR 510 (Darling Downs); Macteldir Pty Ltd v Dimovski (2003) 132 FCR 492; [2003] FCAFC 228, the Full Federal Court at [50] and [51]; Roberts v Gippsland Agricultural and Earthmoving Co Pty Ltd [1956] VLR 555 (Roberts); We Two Pty Ltd v Shorrock (2005) 220 ALR 749; [2005] FCA 934, Finklestein J at [15]; Macteldir Pty Ltd v Dimovski (2005) 726 ALR 773; [2005] FCA 1528, Allsop J at [95].
21. In Macteldir Pty Ltd v Dimovski (2005), at [95], Allsop J in relation to the enforcement of settlements of proceedings in this Court, considered the following (non-exhaustive) considerations should be noted, subject to the exigencies of any given circumstances:

4.1 Orders can be enforced by contempt proceedings.
4.2 Undertakings can be enforced under Order 35 rule 11.
4.3 Undertakings can be enforced by orders to prevent the undermining of the administration of justice.
4.4 Contracts to settle cases can be enforced: though noting Pallas and its limits.
4.5 The enforcement of a contract to settle a case (at least between the parties to the suit) concerning rights owing their existence to Commonwealth law, and hitherto sought to be vindicated in the Federal Court under the FCA Act or the Judiciary Act or another Commonwealth Act will be a matter arising under a law of the Parliament: if it is not (as it may well be) part of the original matter.
4.6 In a motion, or a statement of claim, if one claim is expressed to be made under a Commonwealth Act all claims in the same matter or controversy, which generally can be assessed by seeing whether it is based on the same substratum of facts, will be within federal jurisdiction.

As explained further below, I am content to adopt Allsop J’s non-exhaustive list of considerations.

22. The notice of motion currently before the Court does not involve contempt proceedings or undertakings but a contract to settle the case, in other words it is an instance of consideration (4) in Allsop J’s list. This in turn calls for some reference to the decision in Pallas.
23. In Pallas, proceedings were commenced relying on relief available under the Trade Practices Act 1974 (Cth). They were settled by agreement. The terms of settlement imposed upon persons who were not parties to the proceeding obligations of joint and several liability. Beaumont J, with whom Northrop and Lockhart JJ agreed, held, at 222, that the attempt to enforce the obligation against those non-parties was a separate claim and separate controversy or matter entirely and not one over which the Court had jurisdiction.
24. However, Beaumont J, at 223, acknowledged that the position may well have been different if the appellants had been joined in the proceedings on the footing that they were involved in the contraventions. Alternatively, Beaumont J thought that if, before suit, the appellants had agreed to give the applicant, Dr Finlay, an indemnity in respect of the loss he claimed to have suffered the position may well have been different. In that situation his Honour considered, by reference to Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570; [1983] HCA 12, that the accrued jurisdiction of the Court, if not the associated jurisdiction under s 32 of the Federal Court of Australia Act 1976 (Cth) (FCA) may well have been attracted. However, looked at in isolation, his Honour considered the Court had no jurisdiction to entertain such a claim and, unless there is a substratum of facts common to a matter to which the Court has jurisdiction, the accrued jurisdiction is not available.
25. The dicta of Beaumont J in Pallas led the majority (Pincus and Einfeld JJ) in Darling Downs to conclude, at 522, that it was open to decide the point as to whether an enforcement action was open if the parties to the settlement were also parties to the proceeding. The majority then referred to the Court’s powers under s 22 FCA, which provides as follows:

22 Determination of matter completely and finally

The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

26. The majority at 525 – 526 found as follows:

It is clear that s 22 cannot have been intended merely to give the Court power to make orders of particular kinds ‘in relation to matters in which it has jurisdiction’; that work is explicitly done by the following provision, s 23. What the Court is required to do by s 22 is to grant all remedies to which any party appears to be entitled in respect of a claim properly brought forward in a matter. Is an order enforcing a compromise of a case such a remedy? On general principles it would seem at least arguable that the enforcement of a compromise of a claim is a remedy in a new claim and in a separate case. However, both Smith J [in Roberts v Gippsland Agricultural and Earthmoving Co Pty Ltd] and McPherson J [in General Credit (Finance) Pty Ltd v Fenton Lake Pty Ltd [1985] 2 QdR 6] ... have taken the contrary view. If, as McPherson J held (in our respectful opinion, correctly), the Queensland equivalent of s 24(7) of the English Judicature Act enlarged the circumstances in which a compromise may be enforced by order in the action compromised, that was only so because such an order is a remedy of the kind referred to in the section. McPherson J did not decide the case before him on the basis that what was sought was nothing but a remedy in respect of a fresh cause of action in contract; nor should we so decide this case.

27. In Mactilder v Dimovski (2003), the Full Federal Court (Wilcox, Jacobsen and Bennett JJ), at [50], accepted the majority view in Darling Downs concerning the application of s 22 FCA to permit enforcement proceedings of a settlement or compromise agreement, at least in respect of a matter “properly brought forward”. The Full Court referred favourably to what Smith J had said in Roberts concerning the importance in s 61(7) of the Judicature Act 1873 (UK) of the words “properly brought forward”, which also appear in s 22 FCA. In Roberts, at 564, Smith J (who wrote the leading judgment in the Full Court) summarised the common law position as being:

(i) The Court will allow and enforce the agreement of compromise upon motion in the action whenever the circumstances are such that it would have been enforced in the corresponding matter in the old Court of Chancery.
(ii) In addition, the agreement may be so enforced notwithstanding the fact that it involves matters extraneous to the action, and notwithstanding that there is a substantial question raised as to the terms or validity or enforceability of the agreement, provided that the Court is clearly satisfied that justice can be done under the summary procedure. At least this is so where all that the Court needs to order for the purposes of enforcing performance upon just terms is a stay of proceedings or a dismissal of the action or sum relief claimed in the action.
In deciding whether justice can be done under the summary procedure the Court, of course, needs to consider a variety of matters including questions of degree. These, I think, must include the extent to which extraneous matters are involved, how substantial are the questions to be determined, to what extent questions of credibility are likely to arise, and whether pleadings or discovery may be desirable.

28. Smith J, at 565, added two points:

First, if the action has been stayed or struck out, then it is necessary that the stay should be lifted or the action reinstated as an action for trial, before the agreement is enforced on motion in the action. And once an action has been stayed without qualification there maybe difficulty in having the stay removed. Secondly, though the fact that the agreement expressly stipulates that it shall be made a real Court, or that it shall be enforced by order in the action, it is still, I think, an important consideration in determining whether the summary procedure should be adopted, the Court is not bound to give effect to such an agreement. It has a discretion as to whether it will do so, which appears to be wide enough to give effect to any matter of such a nature as would have afford a defence in an action for specific performance.

29. Having regard to these and other factors considered by Smith J in Roberts as relevant, the Full Court in Mactilder v Dimovski (2003) considered that the applicant’s enforcement proceeding in respect of the undertakings (even if they were treated as orders) did not involve a matter “properly brought forward” for the purposes of s 22 FCA. The Court did not think that justice could be done under the summary procedure of the Court. For that reason the Full Court did not consider that s 22 of the FCA supported the application before the Court for enforcement orders.
30. The Full Court also briefly considered s 32 FCA, which provides that:

To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters... in which the jurisdiction of the Court is invoked.

The Full Court, at [55], said that the Court’s jurisdiction would only be extended by this associated jurisdiction if both the original claim and the claim argued to fall within s 32 are a part of one “matter”; the test being whether both claims arise out of the same substratum of fact: see Fencott v Muller, at 606 and 607. In the case before the Court, the Full Court considered s 32 had no application.

31. In Mactilder v Demovski (2005), Allsop J, in providing his list of non-exhaustive considerations that arise in relation to the enforcement of settlements of proceedings in the Court, expressly disagreed with some of the principles stated by the Full Court in Mactilder v Demovski (2003). First, in relation to Pallas, Allsop J, at [45], noted that Pallas was decided in 1985. In 1997, s 39B(1A)(c) was inserted into the Judiciary Act 1903 (Cth). He then referred to what Beaumont J with the agreement of the other members of the Court had said in Pallas concerning the accrued and associated jurisdictions of the Federal Court and other possible bases for jurisdiction in a proceeding to enforce a compromise or settlement agreement. At [60], Allsop J noted what the Full Court had said about the categories of case that required a separate action for their enforcement. However, his Honour doubted the correctness of that analysis and observed:

With respect, it is doubtful whether the fact that the proper way to bring forward a claim about a breach of contract as alleged by the applicant was in a fresh action (that is a fresh proceeding) concluded the question as to whether that fresh proceedings was a separate and distinct justiciable controversy for the purposes of federal jurisdiction. True it is there were new facts. That is obvious. But they were the facts which disclosed a breach of one contractual aspect of the ‘matter’ – that being the attempt (which was asserted to have failed) to end or quell the controversy.

32. Allsop J, at [61] then observed:

Difficult questions might arise as to the separateness of the matter if enough time or geography separated the complaints. The decision of a court as to whether a claim to enforce a settlement should be brought by way of motion in the original proceedings or should be brought by way of fresh statement of claim is a different enquiry from the question as to whether such a claim to enforcement is part of the original controversy or is an entirely distinct and separate controversy, for the purposes of federal jurisdiction. That is not to say that the analysis of the correct procedural approach may not be relevant to the assessment as to whether a new matter exists. For instance, if it were concluded that a notice of motion was an adequate or appropriate vehicle, that may well assist in the conclusion that the claims in the motion were part of the existing controversy.

33. At [62], Allsop J went on to note that the more substantial the debate, the more appropriate is a statement of claim, rather than the unpleaded notice of motion. But such are not considerations that will necessarily affect centrally the question whether there is a separate and distinct controversy in the area of discourse of federal jurisdiction. A proceeding does not define a matter; the matter is the whole justiciable controversy and the matter can involve more than one proceeding. Thus, even if procedurally a fresh statement of claim is an appropriate vehicle, that would not conclude the enquiry as to whether the claims in the statement of claim were part of, or comprised an entirely distinct or separate, controversy.
34. Allsop J then gave consideration to the associated jurisdiction that might arise under s 32 FCA. Again, with the “utmost respect” he disagreed with the Full Court on this question. At [67], Allsop J noted that s 32 deals with separate and distinct matters. It is not what is sometimes called “accrued jurisdiction”. That expression may be better expressed as the limit of the matter or controversy. The associated jurisdiction under s 32 is the conferral of jurisdiction in another, different, federal matter, in respect of which jurisdiction could be, but has not been conferred.
35. Allsop J, at [70], noted that the possible relevance of associated jurisdiction under s 32 FCA in Pallas was recognised by Beaumont J. Allsop J then noted the introduction of s 39B(1A)(c) of the Judiciary Act in 1997, which provides that:

(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

...

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

36. At [70], Allsop J stated:

The possible role Beaumont J saw for associated jurisdiction if the settlement was between parties to the controversy was that the new matter (if it was not part of the existing controversy and so part of the accrued jurisdiction as his Honour also said) might well be a matter arising under a law of the Parliament. In 1985, Parliament had not conferred jurisdiction in terms of s 76(ii) of the Constitution on the Federal Court (though it could have done so). In 1997, it did so with the insertion of s 39B(1A)(c) ... . Thus, Beaumont J in Pallas discussed the relevance of s 32 of the FCA Act. Now, the better view as to the relevant enquiry is whether s 39B(1A)(c) applies. It is to be noted that in his reasons in July 1985 Beaumont J did not refer to LNC Industries v BMW which had been handed down the previous October, but was not published in the Commonwealth Law Reports until 1985.

37. In relation to the enforcement action taken by the applicant in Mactilder v Dimovski  (2005), Allsop J expressed the view that the matter was indeed within the jurisdiction of the Court for three reasons:
    • The motion always asserted a claim for relief under the relevant legislation, the Copyright Act. Though “badly framed” in terms of the procedural vehicle, this asserted a federal claim which thereby made the whole motion within jurisdiction.
    • The enforcement of a contract of settlement, based on Darling Downs, was part of the original matter. This is so even if the motion should have been brought forward as a separate proceeding.
    • The enforcement action was within the jurisdiction of the Court by reason of s 39B(1A)(c) of the Judiciary Act, not s 32 FCA, which should be considered “less than centrally relevant”.
38. Allsop J, at [79], referred to LNC Industries v BMW [1983] HCA 31; (1983) 151 CLR 575; [1983] HCA 31 (LNC Industries), which he considered supported the view that the enforcement proceedings raised issues arising under a law made by the Commonwealth for the purposes of s 39B(1A)(c) of the Judiciary Act, not s 32 FCA which should be considered “less than centrally relevant”. In particular, his Honour referred to what was said in LNC Industries by the majority at CLR 581 (with which Murphy J agreed at 582 – 3):

A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right of property which is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists as a result of the federal law...

39. Allsop J, at [80], considered no-one had alerted the Full Court to the “clear alternative basis” for jurisdiction (assuming that the contractual claim to enforce the terms of settlement was a separate matter) that the subject matter of contract was a suit authorised by, and rights claimed in the suit to be given by, laws of the Parliament: in this case the Copyright Act 1968 (Cth).
40. Allsop J did not express a concluded view, however, as to whether an enforcement proceeding in respect of a settlement agreement taken against persons who are not parties to the primary proceeding in the Court, involve the enforcement of rights owing their existence to Commonwealth law. Indeed, in his list of non-exhaustive considerations, at [95], Allsop J expressly refers to Pallas in circumstance (4) and “its limits”, and in circumstance (5) refers in parenthesis to the enforcement of a contract to settle a case, “at least between the parties to the suit”, concerning rights owing their existence to Commonwealth law.
41. In We Two Pty Ltd v Shorrock (2005) 220 ALR 749; [2005] FCA 34, heard and decided in July 2005, some three months before argument in Mactilder v Dimovsi (2005), Finkelstein J seems to have taken a broadly similar approach to that of Allsop J. At [15], Finkelstein J noted that the Court has jurisdiction to enforce the terms of an agreement to settle or compromise an action properly instituted in the Court, and that the Court’s jurisdiction – both federal and pendent jurisdiction – is to decide any issue in the disposition of a case properly before it. In particular, his Honour noted that it will make no difference if the enforcement of the settlement agreement is sought, as in the case before him, in the action itself or by a separate proceeding. His Honour referred to Re Wakim; Ex Parte McNally (1999) 198 CLR 511; [1999] HCA 27 at 506. In each case, the necessary federal element is the “matter” or controversy the subject of the underlying action. His Honour noted however, that the “position might be different if the terms of settlement travel far beyond the settlement of the action”. In that case, enforcement of the extended aspects may or may not be within the Court’s pendent jurisdiction and each case will have to be looked at separately.
42. At [16], Finkelstein J made reference to Pallas and considered that the reasoning was that the compromise agreement was not based in federal law. His Honour further noted, however, that:

The Court failed to consider whether the relevant federal aspect was the action itself. In any case that view may no longer be correct in light of recent decisions in the High Court.

43. His Honour then referred to Mactilder v Dimovski (2003) expressing the view that it should be limited to its particular grounds, the point in issue being whether the Court “had jurisdiction”, that is to say “discretion” to enforce terms of settlement by a summary procedure.
44. While the dicta of Finkelstein J may provide some encouragement for the view that an enforcement action in respect of a settlement agreement arising out of a properly brought primary proceeding but against persons not parties to the primary proceeding may arguably, depending on the circumstances, itself have a “federal aspect”, in my view the authorities canvassed do not currently go that far.
45. In light of this analysis of these relevant authorities, I am content to adopt the non-exhaustive list of circumstances in which enforcement proceedings may be taken in or in relation to proceedings in this Court, as enumerated by Allsop J in Mactilder v Dimovski  (2005), at [95], and supported generally by the dicta of Finkelstein J in We Two Pty Ltd v Shorrock.
46. In the case currently before the Court, the contractual obligations undertaken by Lisajoe Investments stand alone and are quite discrete from those undertaken by the respondents. The authorities, as I apprehend them, stand against the proposition that enforcement proceedings may be maintained against a party to the compromise or settlement agreement who is not a party to the proceeding in the Court. Neither the applicants nor the respondents in this case contend for some other proposition. There is no reason in principle, however, why the applicants should not be entitled to enforce the settlement agreement arising out of the proceeding against the respondents discretely. The fact that another entity, not a respondent in this proceeding, is also a party to the deed seems to me to be irrelevant, at least on the facts of this case where the respondents have undertaken obligations under the deed which operate quite independently of that undertaken by Lisajoe Investments under the deed.
47. Where orders are sought to enforce the terms of a settlement or compromise agreement, there is much to be said for the view that, under s 22 FCA, the Court is obliged to grant the orders sought to enforce compliance with the agreement, at least if there are no grounds suggesting the agreement is not applicable or enforceable. In this case, no issue is raised by the respondents concerning the enforceability or application of the agreement aside from the jurisdiction argument, which I have rejected. While it is also contended it would be more ‘convenient’ if there were only one set of enforcement proceedings against all parties to the deed, this presupposes that the applicants will find it necessary or elect to take enforcement proceedings against Lisajoe Investments in some other proceedings, something the Court should not presuppose. It also presupposes the Court has some ‘discretion’ not to make orders in a case like this. In my view, the applicants having made out their entitlement to relief are entitled under s 22 FCA to have the orders made.
48. In summary, the applicants, if not driven by the law to do so, are entitled to elect to bring an enforcement proceeding in the Federal Court of Australia in respect of the obligations of the respondents under the deed and maintain later, if they elect to do so, separate proceedings in a court of competent jurisdiction in respect of the other contracting party who is not a party to this proceeding.
49. For these reasons, the orders sought in the amended notice of motion are appropriate and should be granted.
    

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated: 9 March 2010