A v The Corruption and Crime Commissioner and Ors

[2013] HCATrans 330

[2013] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P60 of 2013

B e t w e e n -

A

Applicant

and

THE CORRUPTION AND CRIME COMMISSIONER

First Respondent

CORRUPTION AND CRIME COMMISSION OF WESTERN AUSTRALIA

Second Respondent

THE ATTORNEY GENERAL FOR WESTERN AUSTRALIA

Third Respondent

Application for stay

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO PERTH

ON MONDAY, 23 DECEMBER 2013, AT 10.30 AM

Copyright in the High Court of Australia

____________________

MS K.A. VERNON:   May it please, your Honour, I appear for the applicant.  (instructed by Lyn Zinenko Lawyers)

MS P.E. CAHILL, SC:   May it please, your Honour, I appear on behalf of the first and second respondents.  The appearance is conditional in relation to the application for special leave.  (instructed by Corruption and Crime Commission – Perth)

MR A.J. SEFTON:   If it please, your Honour, I appear together with MS A.B. PRESTON‑SAMSON on behalf of the third respondent and our appearance in relation to the application for special leave is conditional as well.  (instructed by State Solicitor (WA))

HIS HONOUR:   Thank you.  Ms Vernon.

MS VERNON:   Yes, your Honour.

HIS HONOUR:   I have had the opportunity to read your summons of 20 December, the application for special leave to appeal of 20 December and the affidavit of Ms Zinenko of 20 December.  I have also read your submissions and the submissions that have been provided by Mr Sefton.  Is that all the material that I need?

MS VERNON:   In addition to that, has your Honour looked at the application for special leave?

HIS HONOUR:   I have.

MS VERNON:   Sorry, my apologies.  Then, yes, your Honour, that is the available written material.  We did, of course, in conjunction with the Rules, file the documentation required to be filed to accompany an application for special leave which comprises, in effect ‑ ‑ ‑

HIS HONOUR:   Yes, I have read the reasons of the Court of Appeal judges.

MS VERNON:   I would like shown that is the principal document that your Honour would need from that bundle.  Your Honour, the applicant applies for two things:  firstly, a stay of an order dismissing Supreme Court of Appeal 74/2013 pending special leave if this Court concludes that the second respondent’s undertaking does operate to prevent the second respondent from otherwise disclosing the CCTV footage to the WA Parliament as part of a section 84 report; secondly, in addition or in the alternative, if the undertaking is concluded by this Court not to operate to prevent the second respondent from disclosing the footage to Parliament, then we seek an order restraining the second respondent from disclosing that footage until further order pending special leave.

There are a number of matters that arise from the written applications, three of which are important that I raise with your Honour at the outset.  The first one is the Attorney‑General’s submission against us that there is no order as yet from their Court of Appeal dismissing the proceedings.  That, we say, is a mere formality, the making of that order.  The only orders that will be made consequent upon the reasons for decision published on 18 December will be an order dismissing the appeal with no order as to costs.

Given the proximity to the Christmas break for lodging documents in this Court and also in the Court of Appeal, it was unavoidable that we took the view that we needed to file this application on Friday before such time as the Court of Appeal made a formal order.  Since the making of an order dismissing the appeal in the Court of Appeal triggers the expiry of the undertaking that was ordered on 3 July 2013, the applicant has no option but to secure the hearing of this application in the High Court as soon as possible, even if no formal order has yet been made, which, of course, normally is the document that goes forward with the special leave application.

HIS HONOUR:   Ms Vernon, can I just ask you to pause there?  The reason, as I apprehend the position from Ms Zinenko’s affidavit, that no order has been made by the Court of Appeal is that your side sought and asked that the Court of Appeal not make an order so that your side could apply for a stay later this morning in relation to the expiry, if you like, of the undertaking that had been given earlier this year.

I have to say that to say that the absence of orders by the Court of Appeal is a mere formality is not of much assistance in that this Court’s jurisdiction, both under section 73 of the Constitution and sections 35 and 35A of the Judiciary Act is limited to appeals from judgments, decrees, orders and sentences.  It does not extend to dealing with reasons.  It requires orders.  This is an area where formalities matter.

I understand as well that your side is appearing before the Chief Justice of the Supreme Court of Western Australia later this morning to apply for an extension of the stay in relation to the undertaking.  Is that correct?

MS VERNON:   Yes, it is correct, your Honour, that we are appearing at 10.00 am.

HIS HONOUR:   Ms Vernon, I must say I have great difficulty in understanding how it is you hope to ask this Court to do anything while the Court of Appeal has not yet made orders from which this Court might have jurisdiction to entertain an appeal.

MS VERNON:   Can I address that in two ways, your Honour?  Firstly, in relation to the orders of the Court of Appeal being a mere formality, my submission was intended to be a reflection that the form of the orders that would be made in due course would be a formality in the sense that there is no dispute as to what order would be made.  The fact that orders have ‑ ‑ ‑

HIS HONOUR:   But is there not a dispute?  I mean, you have asked – you successfully asked the Chief Justice not to make orders so that this morning you could ask him to extend the stay in relation to publication of the CCTV footage.

MS VERNON:   That is correct, your Honour, and that was necessary on the basis that his Honour the Chief Justice indicated that any application for a stay should be made on notice to the other parties and due to timing and the closeness of the Court’s closing break for Christmas the only time the matter could be listed was this morning.  Hence, the matter was adjourned through to this morning before the Court of Appeal. 

The issue is, if the Court of Appeal this morning declines to grant a stay on our application which, as of last Wednesday had not yet been filed formally, if the Court of Appeal this morning were not to grant the stay or grant any other restraining relief, then we would be in the position of needing to secure a temporary, possibly 24‑hour or less stay in order to bring the application on before this Court in any event once those orders were made.

Now, the likelihood that we would have been able to achieve that in sufficient time with the requirements of filing documents, in my respectful submission it would have been almost impossible to have secured an attendance before this Court ‑ ‑ ‑

HIS HONOUR:   Ms Vernon, I am not complaining.  All I am trying to do is to make it clear that, as at this moment, there is not a jurisdictional basis for me to entertain your application.  Now, it might be that after the application that you have foreshadowed making to the Chief Justice, it might be that you are not successful on that application in having the stay made in relation to the undertaking so as to preserve it and his Honour may make orders dismissing your client’s appeal to that court and it may be that what you have put in place enables you then to come back here, but until all that happens I am, as presently advised, unable to see that I have jurisdiction to entertain this application.

MS VERNON:   Your Honour, our position is that we did file the application in the High Court as a matter of caution for the very reason that your Honour has illustrated, that if we are not successful in the Court of Appeal later this morning, we would then be in a position – or a better position to come back to this Court possibly later today.  However, having said that, we took the view that the High Court may consider itself seized of jurisdiction on the basis that this application is made in the inherent jurisdiction of the Court which in the Ampolex decision was said to be extremely large for this Court to make orders to preserve the utility of the subject matter of the special leave application.  If your Honour is of the view that ‑ ‑ ‑

HIS HONOUR:   Yes, but that is – Ms Vernon, please – the Court’s jurisdiction is no doubt ample but it is jurisdiction to preserve the utility of the Court’s powers in respect of appeals.  Appeals lie against orders.  At the moment, as a result of your successful request of the Chief Justice, orders have not been made.  In these circumstances, it seems to me that there is presently nothing I can do until orders have been made, and then it would be appropriate for your side to say that this Court at least has a jurisdiction to entertain an application to preserve the utility of an appeal.  What I am asking then is, is it appropriate that I stand the matter down until after the appearance before the Chief Justice at 10 o’clock your time ‑ ‑ ‑

MS VERNON:   Yes, your Honour.

HIS HONOUR:   Or do you wish to persist with your application now.

MS VERNON:   No, I am content for the matter to be stood down and I would apply for that, your Honour.

HIS HONOUR:   Very well.  Ms Cahill, do you have anything to say about that?

MS CAHILL:   No, your Honour.

HIS HONOUR:   Mr Sefton, do you have anything to say about that?

MR SEFTON:   We concur that would be the appropriate course, if it please.

HIS HONOUR:   Well, then, I will stand the hearing down until further notice from the parties after the matter has been dealt with before the Chief Justice at 10 o’clock your time.

Adjourn the Court, please.

AT 10.42 AM THE MATTER WAS ADJOURNED