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

[2001] HCATrans 272

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 TUESDAY, 14 AUGUST 2001, AT 12.00 NOON

(Continued from 30/4/01)

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If your Honour pleases, I appear with my learned friends, MR J.A. McCARTHY, QC and MR M. CHRISTIE, for the applicants/prosecutors.  (instructed by Dibbs Barker Gosling)

MR C.M. MAXWELL, QC:   If your Honour please, I appear with my learned friend, DR K.L. EMERTON, for the Women’s Electoral Lobby (Victoria) Inc, the intervener.  (instructed by Blake Dawson Waldron)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth:   If the Court pleases, I appear with my learned friend, MR R.G. ORR, QC, for the Attorney‑General intervening.  (instructed by the Australian Government Solicitor)

MR B.W. WALKER, SC:   May it please your Honour, I appear with my learned friend, MS K.L. EASTMAN, for the Human Rights and Equal Opportunity Commission seeking leave to intervene.  (instructed by Human Rights and Equal Opportunity Commission)

MR S.J. GAGELER, SC:   If the Court pleases, I appear for the Australian Family Association also seeking leave to intervene.  (instructed by O’Hara & Company)

MS D.E. PURCELL:   Your Honour, I appear in an individual capacity. 

HIS HONOUR:   Yes, Mr Jackson.

MR JACKSON:   Your Honour, the position is this in relation to the conduct of the matter so far.  Written submissions have been filed on behalf of the prosecutors, both in-chief and in reply.  Submissions have been received on behalf of the three persons seeking leave to intervene.  When I say “submissions”, I think, your Honour, the ones on behalf of my learned friend, Mr Walker, contain an affidavit in support of the application as well.

HIS HONOUR:   Yes.

MR JACKSON:   Your Honour, the other matter is that the Attorney‑General on Friday gave a limited fiat to one of the applicants/prosecutors in relation to an aspect of this matter to enable the proceedings to be brought by him at the relation of one of the applicants; the particular one being the Australian Episcopal Conference of the Roman Catholic Church, that being the incorporated body.

HIS HONOUR:   Can you just give me that again, Mr Jackson, the particular party?

MR JACKSON:   It is the Australian Episcopal Conference of the Roman Catholic Church.  It is the second of the applicants in the title of the application book.

HIS HONOUR:   I should have said when I was taking the appearances that I have two certificates from the Deputy Registrar, firstly certifying that the solicitors for Dr McBain, who is named as the second respondent, have indicated he does not wish to appear this morning; and another certificate from the Deputy Registrar in respect of the appearance by the judicial respondent; something that will not occur this morning.  Yes, Mr Jackson?

MR JACKSON:   Your Honour, the fiat itself is in Canberra.  Your Honour heard it was given on Friday.

HIS HONOUR:   Yes.

MR JACKSON:   I am able to give your Honour and my learned friends copies of it, of course, and may I do so now.

HIS HONOUR:   Yes, because it will have some effect on the constitution of the action obviously.

MR JACKSON:   Yes.  The particular point to which I direct your Honour’s attention is paragraph 2.

HIS HONOUR:   Yes.  Let me just read it to myself for a minute.

MR JACKSON:   Now, your Honour will see that the fiat is limited, of course, and it is limited to the inconsistency ground.

HIS HONOUR:   Well, construction.

MR JACKSON:   I am sorry, I was putting it briefly.  But, in particular, to take the obverse of it, it does not apply to the invalidity issue that has been raised and that is, of course - - -

HIS HONOUR:   Have a power question.

MR JACKSON:   Yes, quite, your Honour.  So, that is an issue on which there would not be an identity of interest between the Attorney‑General on the one hand, acting by us in those circumstances and, on the other hand, by the Commonwealth.  Your Honour, that is not unusual, of course, in the course of relator actions but it possibly creates difficulties.  So the course, if I can indicate it, that we propose to adopt in relation to it is, in a sense, twofold to avoid potential difficulties.

One is that I propose to seek first to have the Attorney‑General at the relation of the relevant body joined as a party to the current proceedings but, secondly, also in reliance upon the existing material by adoption, seek to start a separate proceeding, the separate proceeding being one by the Attorney‑General at the relation of the relevant body seeking only the relief that falls within the fiat, and seeking to rely upon that material.  That requires, your Honour, an extension of time in relation to both certiorari and mandamus.

HIS HONOUR:   Yes, it does.

MR JACKSON:   Now, I regret to say we do not have the papers available for that at the present time but could I indicate, your Honour, that we would seek to do that, notify the Attorneys and endeavour to have that brought before the Court at the same time as the present application.

HIS HONOUR:   I can look at it later in the week.  I think that might be better.

MR JACKSON:   Yes, your Honour.  So, your Honour, that is the course of the matter.

HIS HONOUR:   When you have the papers ready and so on I will look at it later in the week.

MR JACKSON:   Yes.  Your Honour, so far as the matter is otherwise concerned, I should have mentioned the lady who is seeking leave to intervene has herself filed some submissions in one form or another before the Court.  We do not wish to say anything about the interventions.

HIS HONOUR:   You do not seek to oppose the interventions?

MR JACKSON:   No, your Honour, we do not.

HIS HONOUR:   Yes, very well.  Now, the matter at the moment has been set down for - - -

MR JACKSON:   For the 4th, your Honour; perhaps into the 5th.

HIS HONOUR:   Yes.  We would hope to finish by noon on the 5th if we start on the 4th.

MR JACKSON:   Yes.

HIS HONOUR:   I do not know if you are in the matter following, are you?

MR JACKSON:   I am, your Honour, yes.

HIS HONOUR:   The Botanic Gardens matter.

MR JACKSON:   Yes.

HIS HONOUR:   Which is, likewise, a day and a half, by the look of it.

MR JACKSON:   Yes, it will take that time but it will finish in that time.

HIS HONOUR:   Yes, very well.  I suppose you are already in, Mr Maxwell.  Do you have anything to say on the other applications for intervention?

MR MAXWELL:   Your Honour, only this – and I have indicated this to my learned friend, Mr Gageler – we oppose the application by the Australian Family Association for reasons which I can indicate briefly at an appropriate time.  Otherwise, we have no submissions in relation to the interventions, if your Honour please.

HIS HONOUR:   Yes.  Now, one thing does occur to me.  It may get caught up in the – perhaps I should go back to this.  I notice the first paragraph of the fiat, Mr Jackson, is not all that aptly worded, really, because your argument is not 75(v).  Your argument, as I understand it – jurisdiction – is section 30 of the Judiciary Act implementing 76(i) and you say that picks up certiorari even though it is not 75(v) relief.

MR JACKSON:   Your Honour will see in the first paragraph the fiat is really referring to seek relief under section 75(v) and that relief is being sought, and then your Honour will see that the next paragraph refers to an application for relief on a particular basis.

HIS HONOUR:   Yes.

MR JACKSON:   So, your Honour, the fiat is really directed to enliven, as it were, the Court’s jurisdiction and the second deals with the substance of the matter lying behind that.

HIS HONOUR:   Yes, very well.  However, one thing that does occur to me, looking at the submissions as they have been filed so far, I think the Court would be assisted by further development of the submissions dealing with this question of certiorari which, as we all know, has been a vexed question in the past.  You refer, Mr Maxwell, to the judgments in Gray; Ex parte Marsh 157 CLR 351.

MR MAXWELL:   Yes, your Honour, we do.

HIS HONOUR:   I am not sure they are the last or sufficient word on the subject.

MR MAXWELL:   No, I accept that, your Honour.  It is now some time since those words were uttered.

HIS HONOUR:   Particularly where jurisdiction is attracted by section 30 of Judiciary Act which is then said - - -

MR MAXWELL:   Yes, your Honour, we have read what our learned friends have said in their reply and we see that it is now not confined to 75(v) as it hitherto appeared to be.

HIS HONOUR:   So it then becomes a question of a remedy under 32, is it; 33 maybe.  There has been discussion of these other sections.

MR MAXWELL:   Yes, your Honour, we need to address those matters.

HIS HONOUR:   Also what I think the authorities do not really grapple with because they have not had to grapple with it:  a situation where the court to which the remedy would be directed is, firstly, one from which an appeal would lie to the court issuing the certiorari.

MR MAXWELL:   Yes, your Honour.

HIS HONOUR:   Certiorari developed at a time when there was no modern appeal system, obviously.  Secondly, where the subject matter in both courts involves the concurrent conferral of original jurisdiction, namely, section 30 of the Judiciary Act – constitutional question – 39B of the Judiciary Act - - -

MR MAXWELL:   Prerogative relief.

HIS HONOUR:   Not just prerogative relief. I think at the time Justice Sundberg was looking at this case, 39B had undergone some expansion. Yes, 39B(1A)(b), a matter “arising under the Constitution, or involving its interpretation”. It is the same language as section 30.

MR MAXWELL:   Yes, your Honour.

HIS HONOUR:   Now, in Abebe  the situation was different because the matters did not have the same content because the Federal Court matter was constricted compared to 75(v); different scope.  Here the scope may be the same.  Now, I am not sure to what extent, if at all, what the Americans

would call “issue preclusion” or something like that then applies as a factor in deciding the availability of certiorari where there is a concurrent appellate stream.

MR MAXWELL:   Process, yes.

HIS HONOUR:   I think the Court would be assisted if those in your interests, if you wanted to make anything of those matters, did so to a further extent than is now apparent, the matter having been, as it were, fleshed out by Mr Jackson’s submissions which have been filed.

MR MAXWELL:   We are indebted to the Court for that indication and, subject to directions, we would do that as soon as practicable.

HIS HONOUR:   The other thing I wanted to know from all of you:  who, if anybody, apart from Mr Jackson and Mr Maxwell, will be debating these questions of jurisdiction and certiorari?  At the moment, I do not think anybody.  Are you participating in that debate to any extent, Mr Solicitor?

MR BENNETT:   No, your Honour.

HIS HONOUR:   All right.  Now, the question then arises what should be done about any further submissions.  That is probably you in the first instance, I think, Mr Solicitor.

MR BENNETT:   Yes.  We would ask your Honour until 27 August to file submissions.

HIS HONOUR:   Yes.  That is a week before, roughly.

MR BENNETT:   Yes, a bit more, I think.

HIS HONOUR:   Others might want to respond to them, of course.

MR BENNETT:   Yes.

HIS HONOUR:   It would be a collection of people, you taking a split position, as it were.

MR BENNETT:   Yes.  Of course, most of the arguments on the areas we are dealing with will be in the submissions of one side or the other.

HIS HONOUR:   Yes, that is right.  Yes, Mr Maxwell?

MR MAXWELL:   I was just going to say, your Honour, if it was preferred that we respond in writing since we are at odds with the Solicitor on the construction question, we - - -

HIS HONOUR:   I really think the Attorney and the Solicitor should be able to get their material in by the 24th.

MR MAXWELL:   That is what we were going to suggest, your Honour, and then we might have until the following Friday to respond, which would be the 31st.

HIS HONOUR:   Yes.  I would prefer the 30th, so it can be distributed and looked at over the weekend by the Court.

MR MAXWELL:   Thank you, your Honour.

HIS HONOUR:   Now, what do you want to say in opposition to Mr Gageler’s - - -

MR MAXWELL:   Your Honour, we wish to say - - -

HIS HONOUR:   Just before you do that, do you want to add something, Mr Walker?

MR WALKER:  I was going to wonder whether your Honour wished us to elaborate anything in relation to our application for leave to intervene either in writing or now?

HIS HONOUR:   No.  Subject to what has broken out between Mr Maxwell and Mr Gageler, I was going to grant the relevant leave.

MR MAXWELL:   Your Honour, given that the Commonwealth has now not only substantively intervened to support the prosecutors on the primary question but has effectively adopted the action, it is our respectful submission that on the assumption from what your Honour has said that the Commission will be granted leave, the arguments are sufficiently to be presented by existing parties.  It is apparent from the affidavit of Mr Casey, sworn 27 April in support of the Association’s application, that although these are questions which are said to be important to that Association, as they may be to any member of the community who has a view about the availability of these services to unmarried women, their interest is purely intellectual or emotional.  Nothing in the activities of that organisation is, on the material, affected in any way by whatever the outcome might be and, indeed, their remoteness from the subject matter is greater than that of the Bishops’ as we have sought to spell out in the standing part of our submissions.

Accordingly, given that the Bishops and the Commonwealth are represented by the most senior counsel to argue the case against the Sundberg judgment, in our respectful submission, there is not only no justification as a matter of standing for that party to be added but no basis on the tests now enunciated in various ways in this Court of sufficient interest to be given leave to intervene.  I might say before I sit down, if contrary to those submissions your Honour saw fit to grant the Association leave to intervene, we would seek the imposition of a condition that that party bear its own costs in any event.  If your Honour please.

HIS HONOUR:   Yes.  I think that would true of a number of interveners, actually.  Yes, Mr Gageler?

MR GAGELER:   Your Honour, there is no difficulty with the imposition of such a condition.  So far as the submissions that my client would wish to put, your Honour has been provided with a short outline of what those would be.

HIS HONOUR:   Yes.  It seemed to me that your submissions were something that had not already been put.  I might be wrong about that.

MR GAGELER:   Were not?

HIS HONOUR:   Yes.

MR GAGELER:   Exactly, your Honour.

HIS HONOUR:   Yes, that they were not duplicative.

MR GAGELER:   Yes, they fall within the scope of the application, that is, they relate to the first ground, the draft order absolute, but they involve arguments that are not presented by the prosecutors and, so far as we understand, not to be presented by any other party.  So that if the Court is to address the entirety of the substance of the issue, the Court would be assisted by our submissions.

So far as our interest in the subject matter is concerned, it is the same - indeed, the direct opposite of the Women’s Electoral Lobby who has already been granted leave to intervene - and it is not very different from the position of the Tasmanian Wilderness Society which your Honour will recall was given leave to make submissions as amicus curiae in the Tasmanian Dam Case.  If your Honour pleases.

HIS HONOUR:   Yes.

MR MAXWELL:   Your Honour, in reply just briefly, the critical distinction between my client and my learned friend’s client is that, as your Honour said on the last occasion, the proceeding required a contradictor, and for that reason your Honour accepted the submissions put on behalf of the Women’s Electoral Lobby and, in contradistinction, our learned friend’s presence, we would argue, is mere surplusage.  To the extent that there is a variant on arguments already advanced about the question whether there is discrimination or not, it is a short point, that is the point that this is not a variation between one woman being of married status and one woman being of unmarried status, but a distinction between a couple and an unmarried woman.  It is new on the papers but our learned friends can readily adopt it and put it.  Indeed, it is there in writing.  If it is a good point it will speak for itself and, in our respectful submission, the lack of interest should be decisive.  If your Honour please.

HIS HONOUR:   Yes.  Now, what do you say, Mr Maxwell on this question of dealing with costs now of interveners, including yourself, or should I simply leave that for the Full Court?

MR MAXWELL:   Save in relation to that intervener – it is not a matter I have raised with my learned friend for the Commission – and given the proceeding is now, as it were, validated by the Commonwealth, there is nothing we can say about the costs of the Commonwealth or the prosecutors, apart from asking your Honour to impose that condition on the applicant if leave were granted, we would have been content for costs to follow the event, subject to any further argument at the hearing.  If your Honour please.

HIS HONOUR:   Yes, very well.  Yes, Ms Purcell.  I am worried about your position because of this question of costs.

MS PURCELL:   Thank you, your Honour. As related to costs, I bear my own costs. I am joined with WEL but seeking standing as amicus curiae arguing section 117 of the Constitution.

HIS HONOUR: Section 117?

MS PURCELL:  

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

HIS HONOUR:   Yes.

MS PURCELL: Section 117 goes some way to protecting the civil and political rights of the citizens of the nation against the State.

HIS HONOUR:   Yes.  I understand all that, but how does it apply to this case?  Who is the subject and who has been treated unequally by a federal law?

MS PURCELL:   By a federal law.  Well, I am making application as a notional hypothetical out‑of‑State resident.

HIS HONOUR:   Well, we cannot deal with that.

MS PURCELL:   As is required ‑ ‑ ‑

HIS HONOUR:   We would never stop if we dealt with all of that.

MS PURCELL:   But I think it is relevant, your Honour.  Miss Meldrum was able to get treatment in New South Wales, whereas I was not able to get, or I might not have been able to.  I never made application to do it, to get treatment in Victoria prior to Dr McBain’s case.

HIS HONOUR:   Yes, well that is the trouble.

MS PURCELL:   And we both are not able to get treatment in Western Australia now.

HIS HONOUR:   Yes.  Have you reduced your submissions to final written form?  I am not criticising if you have not.

MS PURCELL:   I only have them at the stage that – about six pages.

HIS HONOUR:   Ten is quite enough.  I think the other interveners have themselves clearly in the door.  I am not sure you have, but I would not rule against you at this stage.  So I think I should probably stand your application over to the Full Court, but in the meantime do refine your submissions and I will incorporate you in the timetable.  I think that is the best way to do it.

MS PURCELL:   Thank you, your Honour.

HIS HONOUR:   Now, do you want to say anything on this question of costs, Mr Walker?

MR WALKER:   No, your Honour.

HIS HONOUR:   In other words, the imposition of a term, if that is the way to do it.

MR WALKER:   No, your Honour.

HIS HONOUR:   What would be a convenient time to come back when you have your papers in order, Mr Jackson?

MR JACKSON:   Your Honour, would Friday be convenient?

HIS HONOUR:   If it is convenient to the immediate parties. 

MR JACKSON:   Yes, that would suit us.

HIS HONOUR:    I do not think it needs all the interveners to return myself.  They may wish to do so, but I do not think it requires attendance by everyone who is here today.

MR JACKSON:   No.

HIS HONOUR:   All right.  Because there will have to be some orders made directing that material, that fresh application in joining it up and so on.

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Yes, Mr Solicitor.

MR BENNETT:   The only other matter, your Honour, which I wish to raise if it is a convenient moment to raise it, concerns the listing of the case.

HIS HONOUR:   Yes.

MR BENNETT:   I simply wanted to say that it seems to us that there may well be a problem with the timing, particularly in view of your Honour’s intimation about the desire to finish early.

HIS HONOUR:   The Court may wish to confine some of the interveners to their written submissions.

MR BENNETT:   I understand that, your Honour, but it does seem to me it is more than a day and a half case.  I simply make that comment.

HIS HONOUR:   Yes, well it will not be more than a day and a half case, that is all, and on Friday, when things are clarified a little more, I will be seeking some order of addresses, some agreement about that and, if not,

some imposition arrangement for time.  Now, are you going to go twice, Mr Solicitor?  Are you going to split your case?

MR BENNETT:   Yes.  I had not applied my mind to that question, your Honour.  It is really a question of convenience for the Court. 

HIS HONOUR:   And fairness to your colleagues.

MR BENNETT:   Yes.  It may be necessary, in view of that consideration, to do so, your Honour.

HIS HONOUR:   Yes.

MR BENNETT:   To address once after the appellants and once after ‑ ‑ ‑

HIS HONOUR:   Yes, you had better address yourself to your allies on one side and then your allies on the other side when working out these divisions of effort.

MR BENNETT:   Yes, I will do that, your Honour.

HIS HONOUR:   What I propose to say is:

(1)Grant the applications for intervention by the Australian Family Association and the Human Rights and Equal Opportunity Commission, on terms that those organisations will bear their own costs in any event;

(2)Stand over the application for intervention by Ms D.E. Purcell to the Full Court;

(3)The Attorney‑General file and serve his submissions on or before 23 August 2001;

(4)The other parties, including the interveners and the applicant for intervention, Ms Purcell, file and serve their written submissions or further written submissions on or before 30 August 2001;

(5)Certify for counsel for today and for 30 April 2001;

(6)Stand over the further directions to 9.30 am on Friday, 17 August 2001 at Sydney before me;

(7)Costs of today be costs in the proceeding.

Is there anything else, gentlemen?

Now, going back to (4), when I said “serve written submissions or further written submissions”, I think it would be most useful to the Court if those parties who had already served written submissions consolidated them, so there is just one document available to the Court, and we are not scratching around going from one partial argument to another partial argument.

Very well, I will adjourn then for further directions to 9.30 am on Friday in Sydney.

AT 12.35 PM THE MATTER WAS ADJOURNED