Attorney-General in and for the State of New South Wales v Quin

[1989] HCATrans 90

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S4 of 1989

B e t w e e n -

THE ATTORNEY-GENERAL IN AND FOR

THE STATE OF NEW SOUTH WALES

Applicant

and

ERIS ADRIAN QUIN

Respondent

Application for special leave to

appeal

MASON CJ

BRENNAN J

Quin

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 APRIL 1989, AT 3.29 PM

Copyright in the High Court of Australia

SlT 11/1/RB 1 14/4/89

MR K. MASON QC, Solicitor-General for New South Wales: If the

Court pleases, in this matter I appear with my learned friend, MISS R.S. McCOLL, for the applicant.

(instructed by the Crown Solicitor for New South Wales)

MR K.R. HANDLEY, QC: If the Court pleases, I appear with my learned friend, MR F.L. WRIGHT, for the respondent.

(instructed by Jones Staff and Co)

MR MASON:  Your Honours, there are essentially two issues

which we would seek to agitate in this matter if

granted special leave. The first may be stated thus:

did the legitimate expectation which gave rise to a

right to procedural fairness in 1984, which the

Court of Appeal held in MacRAE's case was breached,

also create an obligation preventing the Attorney-

General from deciding as a matter of policy in 1987

that selection of magistrates would be solely on

merit. Your Honours, there is no dispute in this

case that the applicant, because of the circumstances

which he shared with five other persons who are the

subject of MacRAE's case, had an entitlement to natural
justice which arose out of a legitimate expectation

which was due to the circumstances of his former

office and the representations that were made at the

time the courts of petty session were abolished and

local courts were created.

Nor is there a dispute that that was breached,

that right to natural justice in 1984; nor is it in

dispute that that breach gave rise to an entitlement

in the applicant to be confronted fairly with any

allegations of personal unfitness that would be

erected in the face of his appointment. But what is in dispute is a duty which the majority of the Court of Appeal affirmed in QUIN's case, and

Mr Justice Mahoney denied.	The duty was stated in
both a positive and negative form.	We say it is a

single duty, but the different statements of it

reflect what the court was concerned to elaborate.

The positive form was that the Attorney-General

is obliged to give - and I stress the word "obliged" -

special weight to Mr Quin's status as a former

magistrate, and the negative form is that the Attorney-

General is obliged to refrain from taking into account

the merits of other applicants. Your Honours, what is at the heart of this case is the wish by the Attorney-

General to choose the best person offering for office as a magistrate.

To make good the claim that that was the duty

which was found by the Court of Appeal, may I take the

Court to the judgment of Mr Justice Kirby at page 19, line 14, where His Honour said this:

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Quin

Nor was there warrant in treating

Mr Quin and his colleagues merely as

fresh applicants, in competition with
other new applicants, when a principal basis

of the previous decision was their special

position, from which only was derived their

special entitlement.

MASON CJ:  I must say at the moment I do not follow that,

Mr Solicitor. I do not understand how one generates

out of those facts a duty of the kind that you have

just described. Is there any further explanation

in His Honour's judgment?

MR MASON:  No, there is not, in our submission. But His Honour

and Mr Justice Hope treated the substantive right as
flowing axiomatically from the legitimate expectation

and the breach of the right to natural justice which

was created by that legitimate expectation. We say

it is not only a non sequitur, it is a slide of some
considerably significance both in terms of legal

theory and substantive effect. As to the substantive

effect, it operates to fetter a statutory discretion

which the Governor and, in a subsidiary sense, the

Attorney-General as the person responsible for making

reconnnendations to the Governor, has to choose

magistrates and to appoint magistrates. If the breach

in the past of a duty of natural justice can create a

substantive right to appointment, when it was accepted

and clear from the Act that there was no right to

appointment in the first place, then there has been a

significant elision of thought, in our submission.

BRENNAN J: What is the statutory power which is involved here?

MR MASON:  It is in section 12 of the LOCAL COURTS ACT. I

have copies for Your Honours. Page 4 of the print,

and there is an important transitional provision on

page 13 of the print which dealt with the position

of stipendiary magistrates holding office in the

earlier regime and if one looks at clause 5(2) and (3)

it is crystally apparent, in our submission, that the

Act contemplated that not all former magistrates

would necessarily acceda to the office of magistrate

under the new court because provision was made as to

what would happen to those who did not.

BRENNAN J:  The applicant here is, I take it, a person who

falls within subparagraph (3)?

MR MASON:	Yes.
BRENNAN J:	He was somebody -

who did not accede to the office of a

Magistrate on the appointed day.

MR MASON:	Yes;	in circumstances which the Court of Appeal in
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MacRAE' s cas·e said amounted to a denial of natural

justice.

BRENNAN J: What was the power that was in question in

MacRAE's case?

MR MASON: It was section 12 of this Act. What had happened,

Your Honour, was that on the eve of the LOCAL COURTS

ACT being brought into operation at the end of

1984 a decison was taken as a matter of policy that

former magistrates would be invited to apply and,

subject to the processing of their application, the

expectation was created, the court held, that they

would be appointed subject to any specific matters of unfitness or unsuitability being taken into account.

The breach which was held to have occurred was

that with respect to five former magistrates, they

were not appointed because a report of the chief

stipendiary magistrate specifying allegations of

unfitness was taken into account without them being

confronted with it.

MASON CJ:  Did they actually apply for appointment as

magistrates of the local court?

MR MASON:	Yes.
BRENNAN J:	No special form for that application, it was just a

letter or something of that sort?

MR MASON:  Yes. The Attorney-General of the day, as I say,

made the decision which, in my submission, he was not

obliged to do, to offer the opportunity of appointment

magistrates were appointed and a significant number of

to all former magistrates and at 1985 when the LOCAL

additional persons were appointed, being chosen solely

on merit. Now, one way of putting the issue in

this case is - our submission is that the Attorney-

General was not obliged to deal with former magistrates

that way and in so far as procedural fairness was

denied in the course of dealing with them that way,

now that that procedural fairness was identified,

some three years down the track, through no fault of

the Aotorney-General, whether the Attorney-General

remains obliged to deal with the matter in terms of

substantive right in the way his predecessor chose to

deal with it in 1984.

MASON CJ: And the Attorney-General, I take it, after denying

natural justice to Mr Quin and the other magistrates

proceeded to make appointments to the local court.

MR MASON:  Yes. And ever since 1985 appointments to the local

court have been filled by a process of advertisement,

application, culling interview and selection on merit.

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MASON CJ:  Are there any vacancies in the local court at the

present time?

MR MASON:  There may not be now, but that is not erected as

a difficulty because they are occurring from time

to time and what in fact has happened is that there

is a selection list and other things being equal,

the first person waiting to be selected in order of

merit will be appointed when a vacancy occurs.

It is not the inability to appoint; it is the

assertion by the Attorney-General of the right - - -

MASON CJ:	Of a preferential right.
MR MASON:	Of a preferential right to choose the best person

for the job now. And that was the right which is

denied by the judgment of Mr Justice Kirby and if I may just read from line 10:

The former magistrates were not to be

considered in competition with other

applicants; each was to be considered on his own merits and without regard to the merit of non-magisterial applicants.

Since Mr Quin's application has never

been finally dealt with, and he is entitled to

have it finally and properly dealt with.

That requires that it should be considered

by the Attorney-General on the same basis as

that on which the applications by the other

existing magistrates were considered, that

is, as an application by a former magistrate

and not as one of a number of general

applicants for appointment.

Your Honours, there was an issue below which, in one

sense, clouded matters in that the Attorney-General

was saying. "Well, you have got to put in a fresh

application. We have advertised. If you want to be

considered, apply." The Court of Appeal said that

Whilst that submission is maintained, it is not said	they were not obliged to put in a fresh application.
to be other than a convenient way of erecting the issue as to the Crown's right to choose from the best person, rather than from this limited pool.

BRENNAN J: Just so that I can understand that precisely, because

that is the only subject, is it not, of the declaration

that has been made?

MR MASON:  That is the only matter that was in issue at the end

of the proceedings before the court. The court simply

declared that the Attorney-General was obliged to

consider Mr Quin's outstanding application according

to law.

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BRENNAN J~ Yes.

MR MASON:  But in the reasoning of the majority each of

Their Honours said law obliged the Attorney-General

to treat it in this way.

BRENNAN J: 

I appreciate that, but in order to examine the

nature of this case and its suitability for the
grant of special leave, it is desirable to see how
these views were translated into the form of an order

and looking at the order, the only declaration as

made is that the Attorney-General is required to

consider the application which, on the hypothesis of
the correctness of MacRAE's case, has never been

dealt with according to law.  So that although the

proposition may stand, perhaps, that he must consider
the application that is referred to in the order,

namely that of 12 December 1983, that really does not

touch the question that you are wanting to agitate,

does it?

MR MASON: 

It does in the sense that the greater includes the

less, because the Court of Appeal also said that the

Attorney-General was entitled to have regard to the

intervening conduct of the applicant whose application

had ex hypothesi not been duly considered up to now,

and that the Attorney-General was not obliged to

avoid considering the application by reason of the fact

that it was not dealt with before the LOCAL COURTS

ACT commenced.

BRENNAN J:	I appreciate that, but all I am saying is we are not really here debating the necessity for another piece of paper - - -
MR MASON:	No, that is what I wish to make plain, that that is

not an issue in this court. It was an issue below

and, with respect, it tended to create some element

of confusion in that it was thought that that was a

substantial point; rather it was a procedural way of

giving rise to the substantial question.

BRENNAN J:  Am I right in thinking that provided you succeed on

the questions of the Attorney-General's freedom of
choice, you are not concerned about the necessity

for another piece of paper?

MR MASON: Correct. Your Honours, Mr Justice Mahoney- - -

MASON CJ:  Mr Solicitor, we will not trouble you further at

this stage. We will hear from Mr Handley.

MR HANDLEY:  Your Honours, the points put against us are

essentially that the Court of Appeal has gone beyond
enforcing a duty of procedural fairness in its reasons

for judgment in this case.

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MASON CJ:	Yes.

MR HANDLEY:  In my submission, that is not so and can I

illustrate the way we put the case by reference to

what Mr Justice Hope said at the bottom of page 35

and the top of page 36. It is the last line of

page 35 of the application book:

The decision of the then Attorney-General

to put existing magistrates in a special

position was intended to give effect to a

high principle relating to the independence

of the judiciary and the security of their tenure. Problems as to the application of these principles give rise to difficult
questions when a court is abolished and a

new court substituted. It was to meet those

problems that a special procedure was devised

and implemented in relation to existing

magistrates. The purpose of the procedure

was to put those magistrates in a special

position, different to that of applicants

for appointment who did not currently hold

the position of magistrate. The former

magistrates were not to be considered in

competition with other applicants; each was

to be considered on his own merits and

without regard to the merit of non-magisterial

applicants. Since Mr Quin's application has

never been finally dealt with, and he is

entitled to have it finally and properly dealt

with. That requires that it should be

considered by the Attorney-General on the same

basis as that on which the applications by

the other existing magistrates were considered,

that is, as an application by a former magistrate

and not as one of a number of general applicants

for appointment.

Now, in our submission, Your Honours, that is all

procedural and what the Attorney-General has

attempted to do here, and which the Court of Appeal

by majority has rejected, is to rely upon these as yet

unsubstantiated and hearsay allegations which have

been acted on by a previous Attorney-General to

refuse an appointment to Mr Quin, not for the purpose

of refusing him as an appointment but for the purpose

of treating him in a different way procedurally to

the way he would have been treated if the allegations

had never been made or to the way in which he would

have been treated if the allegations had been put out

of account by the ·previous Attorney-General on the

basis of, "I am not going to put those to Mr Quin in

a procedurally fair manner; therefore I should put
them totally out of my mind; therefore I should

treat Mr Quin the same as the other 95 magistrates

who are going across." and once one follows that

S 1 T 11 / 7 / RB	· ·	7	14/4/89
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procedural .approach to his appointment, one reaches

the position that in December 1984 there would have

been nothing against his appointment, just as there

was nothing against the appointment of 95 of his

colleagues.

MASON CJ:  But does procedural fairness require that you be

treated on precisely the same basis as other people

who are given a preference in appointment?

MR HANDLEY:  Yes, Your Honour. Sorry, in this case, yes,

Your Honour, because the reason why it is proposed

to treat him on a different procedural basis involves

denying him natural justice. It is part of the same

given weight and are contributing to the decision to denial of natural justice. The allegations are being

treat him differently and we are entitled to have the

allegations either put to us fairly and either

rejected or accepted in the light of what happens

after we are given procedural fairness, or to be

totally put out of account.

What the Attorney is doing is taking them into

account in order to treat us in a special individual

and disadvantageous way in a procedural way. The very

fact that he singles us out for special treatment is

itself a denial of natural justice or a further

denial of natural justice.

BRENNAN J:  When you say "singles out", do you mean in

comparison with the other 95 magistrates?

MR HANDLEY:  Yes, Your Honour, but not in comparison with the other four. One has been retired on medical grounds

and one is over the age - - -

BRENNAN J:  But not in comparison with other applicants for the

position now?

MR HANDLEY:  No, Your Honour.

BRENNAN J:  Mr Handley, could I just ask you this: am I right

in thinking that in the way in which you read the

order of the Court of Appeal, it carries with it all

the benefits of which - or all the procedural

advantages of which the President and Justice Hope

spoke in their judgments?

MR HANDLEY:	Yes, Your Honour.
BRENNAN J:	Why is it not an important question to determine whether that is so?
MR HANDLEY:	I would put a number of reasons in support of that

matter, Your Honour. This Court originally refused

special leave from the MacRAE decision and can I hand

up three copies of what is - - -

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MASON CJ:  You only need two, do you not?

MR HANDLEY: Before the Court assembled this morning I was

told by the Court attendant, Your Honour, that we

needed an extra one for the shorthand writer.

MASON CJ:  I see.

MR HANDLEY: In fairly peremptory terms, I might add.

BRENNAN J:  I am sure they were gently expressed, Mr Handley.

MR HANDLEY:  Undoubtedly, Your Honour. As I recall there is a

substantially complete account of what His Honour

the Chief Justice and Mr Justice Deane said towards

the bottom of the left-hand column.

While we see force in the general propositions on which the Solicitor-

General for New South Wales relies,

we also see the circumstances of the
present case as extraordinary and
exceptional. In the context of these

extraordinary and exceptional

circumstances we see the issue in the

present case as relating to a decision

about individual unsuitability rather

than as a decision about appointment

we do not think that the judgment of the to judicial office. In these circumstances sufficient doubt to justify the grant of special leave.

Mr Justice Toohey said:

I, to, would refuse special leave. I

would prefer to do so though on the basis,

and on a more limited basis, that the circumstances are exceptional and not appropriate for a grant of special leave

for consideration by this Court.

Now, what has happened here, Your Honours, is that

in February 1988 this Court refused special leave

from the original decision. In December 1988 the
Court of Appeal in the proceedings now under review

as it were worked out that original decision in

relation to the surviving applicant, Mr Quin. And

in our submission, while obviously new questions
arise and whiah have been debated here this afternoon,

it is essentially the working out of an original order which was not thought to warrant special leave by this Court in relation to one individual ex-magistrate.

And so, bearing in mind that the circumstances were

extraordinary and exceptional in February 1988, they

are even more extraordinary and exceptional in April 1989.

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That is the first matter we would put against the application. There is now only one person left

who is seeking appointment and it is a very special

and individual case and not one that is likely, one

hopes, ever to occur again.

MASON CJ:  Mr Handley, there was not a majority holding in

MacRAE's case, was there, that the magistrates who

did not accede to appointment were entitled to this

preferential consideration that has been worked out

in this case?

MR HANDLEY:  Your Honour, in my submission one does get that

from the judgments. One does not get it spelt out

in a crystal clear fashion here - - -

MASON CJ:  No; for example, Mr Justice Mahoney does not regard

the judgment as spelling that out at all.

MR HANDLEY:	No, Your Honour, and of course Mr Justice Hope was not a member of the original court, but it was
inherent in the legitimate expectation recognized and
enforced by the Court of Appeal in the original case
that the existing magistrates in the courts of petty
sessions were in a special position, were recognized
as having a special position and were given
preferential treatment in consideration for the fresh
appointment and that was part and parcel of the
legitimate expectation, as we would suggest, recognized
and enforced in the earlier decision. And that is, in
effect, what Mr Justice Hope says at the top of page 36
and what Mr Justice Kirby said at page 19 in the
passages already read.

Put against us in that case was that these were

applications for fresh appointments and the court has

never, neither this Court nor any appellate court in

Australia, has yet recognized the duty of natural

justice in relation to original appointments. It

would be unthinkable in relation to appointment as a

judge of a superior court that he should be given

natural justice and other examples were discussed.

But that situation was put to one side.

Mr Justice Priestley said, for example, that in

substance this was a case of removal from an existing

judicial office, that was the way he saw it, but if it

was not to be so categorized - and His Honour did not

have to finally decide how it should be categorized -

it was certainly more analogous to the cases of

renewal of existing licences or privileges which had

been the subject of decisions such as in FAI V WINNEKE

than to case~ of original applications.

So the legitimate expectation grew out of, inpart,

existing judicial tenure of the magistrates under the

courts of petty sessions.

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MASON CJ:  I do not see that the reasons advanced by

Justice Deane and myself in MacRAE's case actually

support the argument that you are now putting.

Those reasons seem to hinge on seeing the issue then

as relating to a decision about individual

unsuitability rather than as a decision about

appointment to judicial office.

MR HANDLEY:	I see that those words are there, Your Hono~r, and obviously the same - it is two sides of the same coin, if I can respectfully put it that way. The reason they were not appointed was that the then
Attorney-General, having denied natural justice, considered that the individuals were unsuitable. But
the same tension continues between judicial
appointment and individual unsuitability.
BRENNAN J:	Be it so, the problem that arose for determination in MacRAE's case was whether in the making of an
appointment to this judicial office it was incumbent
upon the Attorney to give notice to the applicants of any adverse report in order that the applicants could deal with it.
MR HANDLEY:	Yes, Your Honour.

BRENNAN J: And you succeeded on that before the Court of Appeal.

MR HANDLEY:  Yes.

BRENNAN J: When the application was made to this Court, that

was the point that was seen to be at the heart of the

litigation and Their Honours see that this was seen

as relating to a decision about individual unsuitability.

At this stage of the litigation, as I understand it,

that is conceded; in other words, it is conceded that if questions of individual unsuitability should arise

in Mr Quin's case on further consideration by the

Attorney, he would be bound to give notice.	Now, does
that not exhaust the MacRAE situation?

MR HANDLEY:  I would submit not because one is here still working

out the effect of that initial declaration and in a

way which was not before the Court of Appeal in the

first case because these matters were not raised by the Attorney-General until after the Court of Appeal

made its first declaration in MacRAE's case. They

were raised before the matter came to this Court on

special leave. I would submit that what was exceptional

and extraordinary then is even more exceptional and

extraordinary now.

But, Your Honours, I do come back at the heart

of our submissions is that there is a denial of

natural justice involved in the Attorney's decision

to treat us differently from our professional

colleagues. That is a procedural decision and it is

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at the heart of the matter that is being put against

Tll	us by the Solicitor. And to treat us differently
because of unsubstantiated allegations is itself a
most material matter of prejudice because if we have
to be considered in competition with 30 or 40 other
applicants maybe -there is evidence that quite substantial numbers of people apply for these positions,
it is not in the application book but it was corrnnon
ground in the Court of Appeal and there was some
material before the Court of Appeal in evidence placed there by the Attorney-General - we are being very
seriously prejudiced in a procedural matter and again
because these allegations are being taken into account.

If these allegations were to be totally put to

one side, we would not be treated differently.

MASON CJ:  I would like to allay any apprehension you may

have, Mr Handley, that we do not understand the point

that you are putting. The point has come across

clearly and obviously it requires serious

consideration. But the problem as it seems to me at

the moment is that the case is an important one and

the question is a difficult one. That being so,

prima facie at any rate it seems to me to be a case

in which we should be seriously considering the grant

of special leave, notwithstanding the force of the

case that you are presenting to us.

MR HANDLEY:  I beg Your Honour's pardon. Can I put, Your Honours,

that there is no rigid distinction in this area between

procedural law or adjectival law and substantive law,

and can I do that by reference to what

Mr Justice Stephen said in SALEMI's case, SALEMI NO 2.

I have only copied the particular two pages. I pass

from the headnote to page 442 and I only seek to read

one sentence, about point 4 on the page:

It is important clearly to distinguise

between matters procedural and those

which relate to substantive law. The rules

of natural justice are "in a broad sense a
procedural matter" (TANOS' Case).

But of course the very statement of that position recognizes that there are elements of substantive law present in any judicial enforcement of rights to

procedural fa~rness and, of course, our legal history

would confirm that view. For hundreds of years

substantive rights have been secreted in the

interstices of procedure and that all the Court of

Appeal has done has been to, as I quoted from

Mr Justice Hope and, indeed, my friend quoted from

Mr Justice Kirby, and I have said ad nauseam to

Your Honours, to deny the Attorney-General the right to adopt a special and unfair procedure in assessing

this particular applicant.

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Your Honours, I would submit that the reasoning in this Court in MacRAE in substance continues to

apply and that now that there is only one surviving

applicant, the circumstances are so special that

this Court should not grant special leave. There

can be no, one would trust, likelihood that this
situation would be repeated in the future in a way

which would be elucidated by the decision in this

case of this Court. We also respectfully submit

that what the Attorney-General does propose to do is

of a procedural nature; it involves prejudice to the applicant - that is Quin - and it involves prejudice to him because the Attorney is relying upon the

allegations in order to apply a disadvantageous and

individual special procedure to him which was not applied to the rest of the bench when the 95 other

appointments were made.

There are other points which the Solicitor made

in the application which have not yet been opened.

I would submit even if the Court were to grant

special leave in this matter, on this aspect of the

case it would not grant special leave on the res

judicata question.

MASON CJ:	Yes, can we have a look at the draft notice of appeal?
1:1R HANDLEY:	I would also ask that the Attorney be put on terms

to pay our costs in any event and not to seek to

disturb the orders below.

BRENNAN J:  Mr Handley, thereis one other underlying problem and

that is that if the question of the piece of paper is

not substantively in issue between the parties, then

the Attorney is, I take it, free to consider Mr Quin

in the next appointment that might be made to the

magis.trates' bench. I take it that it is not intended,

if special leave were granted,by either party that the Attorney should hold his hand in any way while the Court is dealing with this matter.

1:1R HANDLEY: Well, Your Honour, we would be hoping that he will

consider our application - we would hope in due course

that our application would be considered in a way

entirely divorced of any residual reliance.

BRENNAN J:	I appreciate that, but if you should succeed on a more less advantageous basis, you would not wish not
to succeed.

1:1R HANDLEY:  Indeed, Your Honour. We are not asking for any

injunction to stay the Attorney from making an

appointment to us but we do not wish him to consider

us on a disadvantageous basis and then seek to change

his mind if this Court were ultimately to dismiss the

appeal.

SlT12/2/RB	13	14/4/89
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BRENNAN J:	No, I und~rstand that.
MASON CJ:	Mr Handley, looking at the draft notice of appeal,

what are the grounds, if any, apart from ground 4

that you say should be excluded from the notice?

MR HANDLEY:  Ground 4 is the only one that I would seek to have

excluded, Your Honour. The other three fairly arise

from the point on which I have been called on.

MASON CJ:	Yes.
MR HANDLEY:	And I have already indicated that I would ask that

the Attorney be put on terms, Your Honour.

MASON CJ: Yes.	Yes, Mr Solicitor.
BRENNAN J:	As to ground 2, Mr Solicitor, if I could just ask

you about that, I took that to be conceded. Is that

not right?

MR MASON:  The last five words are not. Whilst they are a

matter of complaint as to the majority decision below,.

namely is he obliged to afford natural justice with

respect to post-1984 matters, they are certainly not

an independent matter upon which, if it were the only

thing, there would be a point of special leave. I

would submit they should stay because in the Court of

Appeal the approach to the post-1984 questions intruded on the reasoning of the way the Attorney's

duty should be now regarded with respect to the

matter which has divided my friend and I today. So I

would seek to have that retained and I would seek to

have ground 4 retained on this basis, that it is a

short point; it is one which does raise some questions

about res judicata. In substance, what the respondent's

argument was, which succeeded by the majority below,

was because we said we denied your right to act this

way and we made it clear at the time the earlier case closed, and because you said you were going to do it, res judicata does not arise. And Their Honours said

was decided. Well, it did in one sense, but on the	the matter only came into effect after MacRAE's case
other hand each side was propounding contrary views
and we, for one, were saying to the Court of Appeal,
"We wish to know our position about this." If it
wants to be an issue in the MacRAE case under the liberty to apply, we are happy to fight it there.
But the applicants there said, "No, we do not want-
to fight it", indeed, sought and succeeded in getting
an order for costs in relation to the liberty to apply
which they took up and then dropped. We say there is
an important issue there and it is not a big one.

~..A.SON CJ:  Mr Solicitor, if you look at ground 2 in the draft

notice, you would have no objection if it were

amended so as to read, "with respect to matters"

~nstead of "including"?

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MR MASON:  I could just take out the words "including matters"

in the last line, Your Honour.

MASON CJ: Yes. You could do that.

BRENNAN J: "All matters arising	after 1984", which might- - -
MR MASON:	Yes, I would happily accept that amendment.
MASON CJ:	Mr Solicitor, what do you say about the terms

suggested by Mr Handley?

MR MASON: This is the cost terms?

MASON CJ:	Yes.
MR MASON:	With respect, we would resist them.  I say it is

a matter that perhaps ought to be debated more

fully at the hearing of the appeal, if special leave

is granted. Whilst it is a matter of general

importance, it is a matter in which - - -

MASON CJ:  We need not hear you further on that, Mr Solicitor,

but we should give Mr Handley the opportunity of

responding to yourrequest that ground 4 be retained

in the draft notice of appeal.

MR HANDLEY:	May I just say in regard to ground 2, Your Honour, even as amended, the matter has been as it were
debated in the Court of Appeal and here on a
theoretical level, but I do not know whether my friend
has any instructions that there are any matters
arising adverse to the applicant Quin since 1984
and the whole thing might be academic. I do not ask
him to say what they are in any shape or form, but
it has only been, as it were, a debating point, as far as we can tell, in the Court of Appeal. What
is the position if anything comes up after December
1984? And it may be that this Court should, in the
absence of the Solicitor being able to say that he has instructions that there are such matters - - -
MASON CJ: Prima facie that is, I think, correct, Mr Handley.

The Court should not embark upon a consideration

of a question that is entirely theoretical. We

should ask the Solicitor whether in fact the question

is a live question. Mr Solicitor, is it a live

question or is it a merely theoretical question?

MR MASON:  I think in the spirit - the way it has been put I must say it is, so far as the instructions I have, it is theoretical but I would still - - -

MASON CJ: Unless you have instructions that enable you to tell

us it is a live question, my view is that it should

not form the subject of a ground of appeal to this Court.

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MR MASON:  I would seek the opportunity to clarify what my

instructions are about that. My inability to

say anything is not through lack of instructions but

through lack of having - the matter having been

addressed in other than the most cursory way between

myself and those instructing me. I certainly do not

wish to say anything that would be, in any sense, a

prospective black mark against Mr Quin.

MASON CJ:  Mr Solicitor, on this it seems to us at the moment

that ground 2 should not be included in the appeal. You can, if need be, raise the matter at some later

stage with a view to the inclusion of a ground

corresponding to ground 2 in the event that you

obtain instructions that enable you to inform the

Court that the question is a live question.

MR MASON:	With respect, we would accept that and, if I may say
so, that would be a very fair way of dealing with it

because I would not wish anyone to infer that there

is any slur over Mr Quin's position in relation to

the position since 1984.

MASON CJ: Yes, well that is very proper. But likewise, I

think, we should indicate that Mr Handley has a like

opportunity if something should arise at a later

stage as a result of your obtaining instructions in

relation to ground 2 and perhaps in relation to any

other matter, Mr Handley would have a like opportunity

of approaching the Court.

MR MASON:  May I, just before my friend speaks about ground 4,

say something about the question Your Honour

Mr Justice Brennan asked about what is to happen in

the interim period. As I would understand the

Attorney's position, he will certainly consider

Mr Quin's application on the basis that the 1983

application stands to be considered but, unless the

Court says otherwise, would do so in a manner

consistent with the way other applications are

currently being dealt with.

BRENNAN J: Yes, I understood that to be- - -
MR MASON:	Now, that may include a request to come for an

interview and to provide information. Now, there

would be no singling out of Mr Quin, if that

happened, but if Mr Quin wished to be considered in

the meantime on the general basis, and I will have

a discussion with my friend about that, I do not see

there would be any difficulty about that.

BRENNAN J: Yes, I just wanted to make sure that it was not

understood that this Court was making any order or

giving any intimation which would be inconsistent

with Mr Quin's interests if he saw them in lying in

having his application treated as an ordinary

~pplication for appointment to the bench.

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MR MASON:	Yes.
MR HANDLEY:	On the res judicata question, Your Honours, what

actually as it were - one of the things that

provoked the fresh proceedings was that when a

demand, if I can put it that way, was made on the

Attorney to perform the duty recongized and declared

by the Court of Appeal in the first case, that demand

was met with a refusal, or at least a constructive

refusal, to consider Mr Quin for appointment in the
absence of the making of a fresh application and

although there were other matters which were in

issue, that was a threshold question which provoked

the second application. No such matter was agitated

prior to the publication of the reasons of the Court

of Appeal in MacRAE. That is one reason why, in the

reasons for judgment in MacRAE, the matter was not

dealt with.

Now, the cause of action, if I can use that

expression, which arose as a result of the Attorney's

refusal or constructive refusal to consider and deal

with Mr Quin's application for appointment that had

been outstanding since December 1983, I think -

whenever it was - arose some time during 1988. That

cause of action did not previously exist and could

not have been litigated in the proceedings which

were connnenced in January 1985 and which culminated

in this Court in February 1988. So it was a new

right, a new cause of action giving rise to new rights

which gave rise to the application now before the Court.

In one sense, in a very real sense, the boot on

estoppel might even be on the other foot, that for
the Attorney to raise matters - or seek to raise

matters after the end of the MacRAE case as a reason
or difficulties which he did not raise in the hearing
of the MacRAE case, it might be said that the estoppel

is against him and not against the applicants.

BRENNAN J: There will obviously be a point as to how far MacRAE's

case carries either party, will there not?

MR HANDLEY:  Yes, well we have not -

BRENNAN J: Well why should we restrict ourselves from considering

that problem by excluding ground 4?

MR HANDLEY:  I wanted to make the point, Your Honour, that we

could not have litigated the issue about the need

for a second application until the Attorney refused to consider the old applications on a ground that a

fresh one was required. And there cannot be any

estoppel, in our submission, precluding us from

approaching the Court for relief in the light of that

refusal which dates from July 1988. That could not

S1Tl2/6/RB.	17	14/4/89
Quin

have been l'itigated in proceedings commenced in
January 1985 and Mr Justice Hope takes that point

at the bottom of page 37 and the top of page 38 and he also takes a second point, at the very bottom of 37 he says:

there are two answers to this submission.

In the first place, further events have occurred since those proceedings were -

concluded, I think it should be.

The Attorney-General has now formally

declined to consider the appointment
of Mr Quin to the Local Court bench

unless he makes a fresh application to

be considered in competition with other

applicants and secondly, ..... , all that

were sought in the original proceedings

were declarations. One declaration was

made and another declaration was not

pursued.

The declaration that was not pursued, Your Honours,

has nothing to do with the matters that my friend

has agitated here this afternoon.

In the present proceedings ..... the plaintiffs

sought mandamus. The Attorney-General has

asked that if the Court were minded to grant

mandamus, it should merely make declarations

..... this is, in the circumstances, a correct

procedure to adopt. However the principles

applied in CHAMBERLAIN do not apply in such

a case. In ROYAL INSURANCE CO LIMITED V MYLIUS (1926) 38 CLR 477 at 497 Isaacs J, with whom Knox CJ and Starke J agreed, said:-

dropping down to line 26 -

" ..... Every order for declaration of right

carries with it liberty to apply, and, if

the defendant acts contrary to it, the

Court on a proper applciation, and on proper

notice may enforce it."

And in our submission, Your Honours, if the matters

raised against giving effect to the declaration are
raised after the earlier proceedings have concluded

and so they could not have been - they were not

properly before the Court in the earlier application

at all, then just as one can seek mandamus in the

original proceedings if there is no fresh point, one

can seek mandamus in new proceedings if there are

fresh points, and if there is anything in estoppel it

is an estoppel against the Attorney rather than against

SlT12/7 /RB·	18	14/4/89
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the applicant, because what is he to do. It would

be a very poor state of affairs if you could not

seek a declaration of right without being obliged

to anticipate every possible point that might be

taken against you subsequently and if you were

really compelled to seek a mandamus. That is the

bottom line here. You cannot safely accept a

declaration against a public authority because you

might be estopped from seeking a mandamus

subsequently.

Now, the whole tenor of the administrative law

decisions in this Court, the Federal Court and in

the New South Wales Supreme Court is that a declaration

is sufficient against a public authority. You do not

need coercive relief and in that general background

it would be most unfortunate, and most unjust, if when

one comes a second time for coercive relief one is to

be met with a plea of res judicata.

Of course, the new application point which in

part triggered this application is no longer in
issue. If the Court pleases.

MASON CJ: Thank you, Mr Handley. There will be a grant of

special leave to appeal in this case but there will
be excluded from the grounds of appeal set out in
the draft notice of appeal ground 2. That matter

can become the subject of a later application to the

Court in the events that have already been discussed.

AT 4.24 PM THE MATTER WAS ADJOURNED SINE DIE

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