Ausn Catholic Bishops Conf & Anor, Ex parte - Re Sundberg

[2001] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Registry  No C22 of 2000

In the matter of -

An application for Writs of Certiorari and Mandamus against THE HONOURABLE JUSTICE ROSS ALAN SUNDBERG, Justice of the Federal Court of Australia

First Respondent

DR JOHN McBAIN

Second Respondent

Ex parte –

AUSTRALIAN CATHOLIC BISHOPS CONFERENCE and the AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH

Applicants

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 AUGUST 2001, AT 9.36 AM

(Continued from 14/8/01)

Copyright in the High Court of Australia

HIS HONOUR:   Yes, Mr Jackson?  Before you start, I should say that I hold a certificate from the Deputy Registrar that he has been informed by the Deputy Registrar of the Federal Court that the first respondent, Justice Sundberg, does not wish to take part this morning.

MR D.F. JACKSON, QC:   Thank you. Your Honour, I appear as before for the present applicants/prosecutors.  (instructed by Dibbs Barker Gosling)  I also appear for the Attorney‑General for the Commonwealth at the relation of the Australian Episcopal Conference of the Roman Catholic Church.  This is an additional appearance, your Honour.  (instructed by the Australian Government Solicitor)

MR S.J. MOLONEY:   If your Honour pleases, I appear for Dr John McBain.  (instructed by John W. Ball & Sons)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth:   If your Honour pleases, I appear for the Attorney‑General for the Commonwealth, intervening in both matters.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Intervening in both matters?  I cannot see how you intervene in a matter in which Mr Jackson has the Attorney - - -

MR BENNETT:   There is authority, your Honour.  That occurred in two cases.  It occurred in McKinley and it occurred it Black.  In each case the Attorney who wanted the fiat intervened under section 78A.

HIS HONOUR:   As well?

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   That might have to be looked at.

MR BENNETT:   We certainly take the view, and we will argue ‑ ‑ ‑

HIS HONOUR:   You may take the view and you may argue it but it may have to be looked at.

MR BENNETT:   Yes, if your Honour pleases.

HIS HONOUR:   Yes, Mr Jackson?

MR JACKSON:   Your Honour, may I give your Honour three bundles of documents, in effect.  One of them, the last one, is simply a proposal as to order of addresses when the matter comes on, and perhaps I could come to that at whatever point is convenient to your Honour.

HIS HONOUR:   Yes.  Let me just look at the motion first.  Now, Mr Jackson, what relation does this matter then bear to your already existing proceeding, in particular the grounds in the already existing proceeding?

MR JACKSON:   Your Honour, may I say the materials I have just given your Honour consist of two applications.  The first is to join the Attorney‑General ex relatione as a party to the existing proceedings.  They are the one that have C22 at the top of them.

HIS HONOUR:   Yes.

MR JACKSON:   Now, the second application is to institute new but more limited proceedings by the Attorney‑General, again, at the relation of the same body.  Could I say in relation to the substance of both, the application, so far as the Attorney‑General in that capacity is concerned is based on the limited grounds contained in the fiat to which I gave - - -

HIS HONOUR:   Yes, I saw those.

MR JACKSON:   Could I go, your Honour, to the former application, that is the one involving joinder and we would seek leave to file and read in Court a notice of motion dated 17 August and an affidavit of Mary Clare McNamara, sworn the same day.  That is in relation to the joinder question and that indicates, your Honour, the basis of the relief sought by the Attorney‑General so that the parties would be the existing prosecutor/applicant plus the Attorney‑General, and it would be a case where ‑ ‑ ‑

HIS HONOUR:   I am sorry, I am not following that.  It is getting a bit Gilbertian.

MR JACKSON:   I am sorry.  What I was seeking to say was this:  the current proceeding would be a proceeding in which existing applicants/prosecutors remain as such and have added to the applicants/prosecutors the Attorney-General at the relation of one of the current prosecutors, that being the Australian Episcopal Conference.  Now, in those proceedings the bases of relief sought by the existing prosecutors would be, as the matter presently stands, the basis of relief sought by the Attorney‑General would be more limited based on – I put it shortly the other day, your Honour, the inconsistency question.

HIS HONOUR:   When you say “sought by the Attorney‑General”, what do you mean when the Solicitor‑General seems to be lurking there as well?  You seem to be bifurcated.

MR JACKSON:   Your Honour, in our submission, what my learned friend said is quite right.  A relator action is one in which the Attorney‑General – it is put in various ways, of course – “lends a name” is one way of putting it, but enables proceedings to be brought to challenge various forms of action.  But there certainly are decisions.  What is commonly called the DOGS Case is an example where the very thing that my learned friend adverted to occurred and it has occurred on a number of other occasions where the Attorney‑General in one capacity, in order to check on the validity or have the validity of conduct examined, enables the proceedings to be brought but then defends the validity of the conduct in whole or in part.  Your Honour, it is something that certainly occurs; has occurred in the Federation; with the same Attorney and the same polity.

HIS HONOUR:   In the relator component of the matter, if that is the way of putting it, leave is sought?  Leave is needed, is it not, because of time?

MR JACKSON:   Yes, your Honour, and in relation to that, the position of course is - - -

HIS HONOUR:   Does that not suggest the better course is to have a separate application?

MR JACKSON:   Your Honour, the separate application is there as well.  Your Honour will see that one has a situation ‑ ‑ ‑

HIS HONOUR:   At some stage you have to elect, do you not?

MR JACKSON:   With respect, not necessarily.  There is no difficulty, in our submission, in the Court having before it two proceedings, one already in form and in time to which another party is added.  The other being a new proceeding which is not started in time in respect of two of the forms of relief, certiorari and mandamus, and in respect of which an application for extension of time is sought.  Now, we would be asking your Honour that in relation to those proceedings there be a direction that the matter be dealt with by the Full Court at the same time, and the Full Court, in dealing with that, would, we would expect, be the body that decided upon the question of the extension of time.

HIS HONOUR:   Yes, I would agree, yes.  Now, you mentioned there was an affidavit in support of ‑ ‑ ‑

MR JACKSON:   I referred your Honour to - - -

HIS HONOUR:   It is stapled at the back, yes, I see.

MR JACKSON:   Yes.

HIS HONOUR:   Yes, very well.   The same restrictions would apply as to submissions?

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Same direction as I made the other day, and that is to say the Attorney‑General “in his personal capacity”, to use that expression, by 23 August; the other parties by the 30th.  The order of addresses – have you seen this, Mr Solicitor?

MR BENNETT:   Yes, your Honour.

MR JACKSON:   I am sorry to interrupt your Honour.  Before your Honour gets to that, there is, of course, the application in relation to the new proceeding and that is – I am sorry, your Honour, I said before there were two applications, one to join the Attorney‑General to the existing proceeding and the other to commence new with more limited proceeding.

HIS HONOUR:   Yes, that is right.  They could be commenced subject to all these questions, I suppose.

MR JACKSON:   Yes.  That is a similar - - -

HIS HONOUR:   Can I commence them without giving the leave myself?

MR JACKSON:   I was not going to suggest that the proceedings could necessarily be commenced without out but what your Honour will see is that in relation to that, the material consists of a notice of motion which, amongst other things, seeks an extension of time.

HIS HONOUR:   Yes.  Now, this brings Mr Moloney into the picture, does it not?

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Is there anything you want to say, Mr Moloney?  Your client is a party to the other proceedings as well, is he not?

MR MOLONEY:    He is a party by the route of the service of an amended draft order nisi and nothing else.

HIS HONOUR:   Yes, that is right.

MR MOLONEY:    To that extent, perhaps my learned friend will suggest that my client is a party.  Other than that, I wish to submit nothing further, your Honour, other than to submit that it is a somewhat curious route not to amend the notice of motion or advert to any affidavit material in relation to any relief that would be sought against Dr McBain.

HIS HONOUR:   But he is a party to the proceedings before Justice Sundberg, is he?

MR MOLONEY:    He is, yes.

HIS HONOUR:   And that is the record that is in dispute.

MR MOLONEY:    Yes, your Honour.

HIS HONOUR:   Well then, the core of it is the orders – the declaration made by Justice Sundberg.

MR MOLONEY:    Yes, your Honour, yes.

HIS HONOUR:   And if that is to be displaced, as it were, you have to be joined to give you the chance of saying it should not be, I imagine.

MR MOLONEY:    Yes.  The only matters that Dr McBain would wish to press before this Court is the appropriateness of any order for prohibition against him.  All other matters will be agitated, as I understand it, your Honour, by other parties that have been - - -

HIS HONOUR:   I would think so.  That is my impression.

MR MOLONEY:    Yes.  We have seen their submissions.

HIS HONOUR:   They were given leave partly under the consideration of the position of your client.

MR MOLONEY:    Thank you, your Honour.  My client is now no longer treating Ms Meldrum.

HIS HONOUR:   Yes, I understand that from your affidavit.

MR MOLONEY:    And has only one interest, like all citizens, and it is to obey the law.  Your Honour, it would ultimately be pressed at the hearing – at the final hearing – that no order for prohibition would lie against my client in the circumstances of this case.

HIS HONOUR:   Yes.  Now, we have to get down to practicalities though.  Does that mean that your client will be appearing to take an active role?

MR MOLONEY:    The only role, your Honour, would be to - - -

HIS HONOUR:   I am thinking of time, for one thing.

MR MOLONEY:    Yes.  The submissions would be very brief, and if your Honour is looking at the order of addresses, I would imagine no more than half an hour at the rear of those persons being heard under the heading “Opposing relief”.

HIS HONOUR:   Well, he will be appearing, so he will then be putting on written submissions?

MR MOLONEY:    Yes, your Honour.

HIS HONOUR:   By 30 August.

MR MOLONEY:    Yes, your Honour.

HIS HONOUR:   Very well.  That is all generating costs for him, the reason for which I do not quite see at the moment but that is for you to advise him.

MR MOLONEY:    Yes.  Your Honour, Dr McBain is concerned - - -

HIS HONOUR:   I understand that.

MR MOLONEY:    - - - that there may be an order made against him for prohibition which ought not be made against him.

HIS HONOUR:   There will be an order made, if it is successful, against Justice Sundberg too.

MR MOLONEY:    Yes.  If an order was ultimately made against Justice Sundberg, Dr McBain would ultimately be admitting that that would result in the perfection of circumstances of this case, of the orders pressed by the Bishops.

HIS HONOUR:   I do not follow that.  It is what these remedies are all about, really.  What is sought is certiorari and mandamus in particular.

MR MOLONEY:    Yes, and if an order for certiorari was made - - -

HIS HONOUR:   There was no compulsive order made by Justice Sundberg was there?  It was a declaration.

MR MOLONEY:    Yes.  And if an order was made by the Court for certiorari - - -

HIS HONOUR:   So, it is hard to see what could be prohibited.

MR MOLONEY:    Yes. 

HIS HONOUR:   That is why the remedy is certiorari in the first instance.

MR MOLONEY:    Yes, and if certiorari is made in respect of Justice Sundberg’s order, Dr McBain, like any other citizen, has to comply with the law, with respect, your Honour.

HIS HONOUR:   Yes, that is right.

MR MOLONEY:    And, therefore, it would not be, it would ultimately be submitted, with respect, appropriate for an order for prohibition against Dr McBain.

HIS HONOUR:   Yes, all right.  Are you seeking prohibition, Mr Jackson?

MR JACKSON:   At the moment, your Honour, yes.  It is possible our views will change on the matter but at the moment, yes.

HIS HONOUR:   Prohibition of what?

MR JACKSON:   Well, your Honour, prohibition against anything further done pursuant to the order.  Now, I appreciate the order was a declaration that was made.

HIS HONOUR:   Yes.

MR JACKSON:   But the declaration was sought in order to justify conduct.  Now, it may be that in the end there is nothing that is going to be done in relation to that but there is no reason, your Honour, why, in our submission, we should not have the person who was the initiator of the proceedings before the judge in the Federal Court, a party to the proceedings, to avoid any difficulty about a potential contradictor.

HIS HONOUR:   Yes.  If that draws Dr McBain and his representatives in, so be it.

MR JACKSON:   So be it, your Honour.  It may end up some issue about costs but - - -

HIS HONOUR:   That is right.  That is what I am concerned about.

MR JACKSON:   If Dr McBain simply wishes to submit, well then, it would be very difficult for us to say anything about costs against him.

HIS HONOUR:   Yes, very well.  So, I need to add a slot here, do I not, for you?

MR MOLONEY:    I am grateful to your Honour.

HIS HONOUR:   Has the rest of the Bar table have a copy of this proposed timetable?

MR BENNETT:   Yes.

HIS HONOUR:   Has this been discussed with Mr Maxwell and Mr Walker?

MR B.W. WALKER, SC:   Yes, your Honour, from my point of view.  (instructed by Human Rights and Equal Opportunity Commission)

MR JACKSON:   So far as Mr Maxwell is concerned, your Honour, I have not shown him this but it results from some discussions we had at the conclusion of the matter the other day and I do not think there would be any difficulty about it and I will get back to your Honour if there is.

HIS HONOUR:   Very well.  Does this indicate, Mr Walker, any division of topics between you and Mr Maxwell?

MR WALKER:   No, it does not, but I am going to propose to Mr Maxwell a division which particularly gives us questions relating to the Treaty.

HIS HONOUR:   It might be useful to have some division though.

MR WALKER:   Yes.

MR JACKSON:   Your Honour, may I say in relation to it:  I have indicated a fairly precise division of time amongst those on each side.  What I was really seeking to say as well was that within the outer limit for each of the two fundamental interests, that the parties be able to divide it up differently if that be appropriate.

HIS HONOUR:   Yes.  I have looked at the Domain Case which you are in, which is the next case, and I think there may be a little bit of room to give there if need be.

MR JACKSON:   Yes.

HIS HONOUR:   To expand this at the expense of the next case, perhaps, but let us take this as the benchmark to start with.  So this would need – amongst those opposing relief, there would have to be added Dr McBain, 11.45 to 12.15, and then reply, 12.15 to 12.45.  That might meet the case.  There will also be some time taken up at the beginning dealing with one, Ms Purcell’s application to intervene, and with these two motions, I imagine, but there we are.

MR JACKSON:   Yes.

HIS HONOUR:   Yes, thank you, Mr Jackson.  Has this been served?  I am looking at the motion in C22, the affidavit in support.

MR JACKSON:   Not formally, your Honour.

HIS HONOUR:   Right.  I will just give a direction about it.  When can that be done?

MR JACKSON:   Today, your Honour, as best we can.

HIS HONOUR:   What hearing dates have we?

MR JACKSON:   The 4th, I think it is, your Honour.

HIS HONOUR:   The 4th, yes.  Now, I cannot make any order on the relator matter granting leave to anybody to intervene yet because it is not sufficiently airborne but that will be dealt with as a formality, I imagine, on the 4th.

MR JACKSON:   No.

HIS HONOUR:   This is what I propose to say:

(1)Direct that the notice of motion in matter C22 of 2000 filed in Court this morning be served on the other parties and the interveners with the affidavit in support on or before noon on 27 August 2001;

(2)Direct that that motion be returnable before the Full Court on 4 September 2001;

(3)Direct that the motion on the relation of the Attorney‑General filed in Court this morning be filed and served with any affidavits in support on or before 27 August 2001 and that that motion be returnable before the Full Court on 4 September 2001;

(4)Any application by the interveners in matter No C22 of 2000 to intervene in the matter commenced by the motion I have described in order (3) be dealt with on that return date of 4 September 2001; and reliance may be placed in support of those applications for intervention upon the evidence already filed in support of the earlier applications for intervention;

(5)Direct that the written submissions identified in orders (3) and (4) made on 14 August 2001 encompass any submissions that may be made arising from orders (1), (2) and (3) made today;

(6)Costs of today be costs in the proceedings; and

(7)  I certify for counsel.

Is there anything else, gentlemen?

MR MOLONEY:   Your Honour, would the Court be assist by – and it was adverted to in the Ball affidavit by submissions from Dr McBain in response to submissions from the Church on the appropriateness of an order for prohibition that is sought to be made against him?  There is no staging, your Honour, I do not think, on that question

HIS HONOUR:   Well, it is up to you but any submissions you want to put on will, in accordance with order (4) I made the other day, go on on 30 August.

MR MOLONEY:   The Church’s submissions would be able to be filed that day at the same time as Dr McBain’s.

HIS HONOUR:   That is right.

MR MOLONEY:   There is nothing hitherto been filed on that question.

HIS HONOUR:   I know.  We have to get on.  Is there anything else, gentlemen?  I will now adjourn.

AT 10.04 AM THE MATTER WAS CONCLUDED