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

[2001] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the 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

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 CANBERRA ON MONDAY, 30 APRIL 2001, AT 2.15 PM

Copyright in the High Court of Australia

MR J.A. McCARTHY, QC:   May it please your Honour, I appear for the applicant and I mention the appearance of MR D.F. JACKSON, QC and MR M.  CHRISTIE, and I appear with him.  (instructed by Barker Gosling).  (Mr Jackson did not appear)

MR C.M. MAXWELL, QC:   If the Court please, I appear with my learned friend, DR K.L. EMERTON, for the Women’s Electoral Lobby (Victoria) Inc, which, as your Honour knows, seeks leave to intervene in the proceeding.  (instructed by Blake Dawson Waldron)

MR D.F. TUDEHOPE:   Your Honour, I seek to appear in the interests of the Australian Family Association.  (instructed by O’Hara & Company)

MS D. PURCELL:   May it please the Court, your Honour, I appear by myself for myself.

HIS HONOUR:   Yes, and you wish to intervene?

MS PURCELL:   Wish to intervene, yes.

HIS HONOUR:   But you would be in support of Mr Maxwell’s client?

MS PURCELL:   Yes.

HIS HONOUR:   And, Mr Tudehope, you would be on the same side in support of Mr McCarthy, would you?

MR TUDEHOPE:   Not entirely but to some extent, yes.

HIS HONOUR:   Yes.  The Court has been informed to this effect:  I certify I have been informed by the Deputy District Registrar of the Federal Court of Australia that the respondent, his Honour Mr Justice Sundberg, does not wish to take part in the proceedings and will abide by the decision of the Court.  Now, Officer, would you call the matter outside the Court.  At the moment there is no appearance by the respondent.

COURT OFFICER:   Matter called, your Honour.

HIS HONOUR:   Yes, thank you.  Now, Mr McCarthy, there seems to be two proceedings, C21 and C22.  What is the difference between them?  Can I disregard one and just hereafter look at the other?

MR McCARTHY:   I think so, your Honour.  The orders are made in C21.

HIS HONOUR:   So can I disregard ‑ ‑ ‑

MR McCARTHY:   I do not want to say the first ball took the middle stump.  There is only one set of proceedings, your Honour.  I think there might be a typo on something.

HIS HONOUR:   I think so.  I see, so at the moment it is 22, yes.

MR McCARTHY:   The answer is that it was C21 when it was before Justice Callinan and it has since been transmogrified to C22, so we only have to worry about C22.

MR McCARTHY:   Thank you, your Honour.  Your Honour, these are directions hearings that have been set down by the Court and ‑ ‑ ‑

HIS HONOUR:   Yes.  I wanted to ask you how you see the issues that would arise on your side in terms of broad heading.

MR McCARTHY:   Yes, your Honour.  Perhaps I might just give you some brief background to this, your Honour.

HIS HONOUR:   Well, I have read all the papers.

MR McCARTHY:   Well, only in this sense, your Honour, that the directions hearing today follows orders that were made by Justice Callinan on 17 October and pursuant to which the application was referred for hearing by notice of motion to the Full Court.  Appropriate notices has been given pursuant to the Judiciary Act and pursuant to orders of Callinan J and, as your Honour has just indicated, Justice Sundberg has notified the Registry of his receipt of proceedings and that he would submit to the order of the Court.  Your Honour, the Commonwealth, Victoria, Western Australia and New South Wales have not indicated their respective positions.

HIS HONOUR:   They have received 78B notices and they have not responded.

MR McCARTHY:   They have not, your Honour, but the following have responded and said they will not seek to appear:  Queensland, ACT, Tasmania, Northern Territory and South Australia.  We have received applications for intervention or notice of intention to this effect from the Women’s Electoral Lobby, Ms Del Purcell and the Australian Family Association.

HIS HONOUR:   Yes.  Well, they are here today.  I am not interested in anybody else at the moment.

MR McCARTHY:   And we have also received an affidavit from Lisa Meldrum, the fourth respondent in the Federal Court proceedings, which should be ‑ ‑ ‑

HIS HONOUR:   Yes, but she is not here either.

MR McCARTHY:   No, and we have been advised by Mr Maxwell that Dr McBain, the applicant in the proceedings below, would be supporting an application by WEL to intervene.  Now, your Honour, what we would seek is a hearing date.

HIS HONOUR:   Well, just listen to me for a minute.  It is not a question of people taking attitudes and stating positions.  They either come along, they apply to be an intervener, they are an intervener as of right or on application, or they are a party.  That is it.  That is how the matter runs.

MR McCARTHY:   Well, your Honour, I will not take that any further.  What the applicant seeks today is a hearing date in relation to this matter.

HIS HONOUR:   Yes, I realise that.  Now, let me ask you, firstly, is the order in proper form that you seek?

MR McCARTHY:   I have no reason to think that it is not, your Honour.

HIS HONOUR:   Well, you do not seek mandamus, do you?  Justice Sundberg gave a decision and made some declarations.  Do you not want certiorari and prohibition?

MR McCARTHY:   Well, your Honour, the orders that were sought ‑ ‑ ‑

HIS HONOUR:   You do not want it to go back to start again ‑ ‑ ‑

MR McCARTHY:   No.

HIS HONOUR:   ‑ ‑ ‑ and it is not your application to make it start again.  You are a respondent.

MR McCARTHY:   That is true.  Well, your Honour, the orders that are sought are writs of mandamus and certiorari in this matter.

HIS HONOUR:   All I am saying to you is, if that is what you seek, you will not get what you need.  I am inviting, in between now and some later date, to reformulate the order nisi.

MR McCARTHY:   Thank you, your Honour.

HIS HONOUR:   Well, your order absolute, your draft order absolute.  That is the first point that has to be taken on board.

MR McCARTHY:   Thank you.

HIS HONOUR:   Now, the second point that has to be taken on board is that at the moment you do not really have on the record a contradictor, which is a bit awkward in getting it ready for trial - for hearing, I should say.  So it is important to have in mind, if I could just have an outline of the headings that you would see the argument following on your side, at any rate.  Firstly, there would be debate about standing, but you have got no contradictor for that at the moment.

MR McCARTHY:   That is true.

HIS HONOUR:   Then there would be debate about discretion, and no contradictor there either at the moment.  Then there would be matters of substance.  What do you see the matters of substance as being?  To be precise, are there any grounds of substance in addition to those that were determined by Justice Sundberg that you want to put in this Court that have not been put before him?

MR McCARTHY:   Your Honour, in the sense of raising issues concerning the matters involving the interpretation of international conventions that really were not canvassed ‑ ‑ ‑

HIS HONOUR:   Well, what does that mean?

MR McCARTHY:   It means this, your Honour.  It means that ‑ ‑ ‑

HIS HONOUR:   Well, let me get to the point.  Before Justice Sundberg it was inconsistency.  Right?

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   You compare two laws.  It does not matter what it says in some international convention.  Are you challenging the power behind the Commonwealth – are you saying the Commonwealth law to some extent is invalid?

MR McCARTHY:   First of all, your Honour, we are saying that there is not an inconsistency.

HIS HONOUR:   Yes, I understand that.

MR McCARTHY:   Yes. Secondly, your Honour, in the orders that are sought we raise that the Constitution provides no head of power for the regulation of in‑vitro fertilisation procedures and section 22 of the Act cannot be used to regulate the provision of IVF.

HIS HONOUR:   Are you saying there is a lack of power?

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   Right.  That was not agitated before.

MR McCARTHY:   It was not.

HIS HONOUR:   Has the allegation of lack of power been put in the 78B notices?

MR McCARTHY:   Yes, it has.

HIS HONOUR:   All right.  They would be the two substantive matters, would they not, power and inconsistency?

MR McCARTHY:   Yes, they would be, yes, your Honour.

HIS HONOUR:   The former being agitated here but not having been agitated in the Federal Court.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   All right.  Now, I cannot be confident precisely of what date you would get, but on the footing that it was either in the August or September sittings, how long would you need to put on your submissions in‑chief in writing?

MR McCARTHY:   We could certainly ‑ ‑ ‑

HIS HONOUR:   I am not pressing you, but we have to start somewhere.

MR McCARTHY:   No.  Well, your Honour, can I put the answer in reverse?  We could certainly conveniently meet anything under Practice Note 1 of the Court in relation to submissions and ‑ ‑ ‑

HIS HONOUR:   Just forget about Practice Notes.

MR McCARTHY:   Sure, but we could be in a position, your Honour, to have our submissions ready by the end of July.

HIS HONOUR:   No, it has to be before that.

MR McCARTHY:   Would your Honour suggest a time?

HIS HONOUR:   What I am minded to do is to have your submissions in by sometime in June; at this stage to grant at least Mr Maxwell leave to intervene and to have his submissions sometime in mid‑July and your reply by the end of July and then have another directions hearing and see whether any of the other people who want to intervene want to say anything that is not already covered in what you two have produced between you and then deal with the matter from then on.  So is there any difficulty – there is nothing mysterious about this.  It has been done in various other cases.

MR McCARTHY:   No.  I was just wondering what date your Honour had ‑ ‑ ‑

HIS HONOUR:   In June – well, I am conscious of the fact that July is often vacation for the Bar.  How does that affect you, Mr Maxwell?

MR MAXWELL:   No, that would be entirely convenient.

HIS HONOUR:   All right.  Would Friday, 15 June for your side and then ‑ ‑ ‑

MR McCARTHY:   Would your Honour just allow me a moment just to ‑ ‑ ‑

HIS HONOUR:   Sure.

MR McCARTHY:   Your Honour, there would be no difficulty in relation to our preparing submissions in that context.

HIS HONOUR:   However, I should say this, Mr McCarthy.  Those submissions would be dealing with power and inconsistency.  On standing and discretion, you would really be in reply I think because you would want to see what Mr Maxwell – he has really got the carriage of that, otherwise you will be maybe shadow boxing.

MR McCARTHY:   Yes.  Well, your Honour, the only thing that troubles me in relation to that is the issue of, in effect, intervener status in the matter in the context of the Commonwealth not having indicated, or Victoria indicating that ‑ ‑ ‑

HIS HONOUR:   Well, they might make up their minds pretty quickly when they start seeing some written submissions.  This matter has to be decided and I am not sitting here to await the pleasure of the Commonwealth or Victoria or any other State or Federal Government.  It has to be got on.  It has to be got on in the proper state so that there is a proper matter, and I thought that is in your interests.

MR McCARTHY:   Your Honour, it is in everyone’s interests that that be so and I ‑ ‑ ‑

HIS HONOUR:   And there has to be a contradictor and at the moment there is not and you cannot get off the ground without a contradictor because you do not know what case you have to meet on the question of standing for starters.

MR McCARTHY:   And, indeed, on some of the other issues.  But, your Honour, I would be content with what your Honour has said in this context, if ‑ ‑ ‑

HIS HONOUR:   If you want to move the Full Court to rescind any grant of leave to Mr Maxwell, on the first day of the hearing, you are welcome to give it a go.

MR McCARTHY:   No, no, that is not what I had in mind, your Honour.  All I had in mind was that it may well be this whole issue about a contradictor would need to be revisited fairly quickly if other parties did in actual fact ‑ ‑ ‑

HIS HONOUR:   We will look at that when we have another directions hearing.

MR McCARTHY:   Yes, that is what I am thinking about, your Honour.

HIS HONOUR:   That is right.

MR McCARTHY:   That may well come.  I would seek in those circumstances, your Honour ‑ ‑ ‑

HIS HONOUR:   But at the moment you are being held hostage to their inactivity and that has to stop.

MR McCARTHY:   That is right.  No.  Your Honour, what your Honour proposes would certainly bring about a cessation of that stage in these proceedings.  But, your Honour, would it be appropriate that certainly following our submissions, if there is some form of liberty to apply at that stage, if in actual fact other parties do join the proceedings, in other words, we know fairly soon ‑ ‑ ‑

HIS HONOUR:   No, I am not coming back on and off the Bench when they choose to turn up.

MR McCARTHY:   I beg your Honour’s pardon?

HIS HONOUR:   I am not coming on and off the Bench and arranging matters for their pleasure.

MR McCARTHY:   Very well, your Honour.

HIS HONOUR:   They have had their chance, let us face it.  They have had their chance.  78B notices went out.  If they want to change their mind, they come back at an appropriate stage, and I do not think the appropriate stage is until Mr Maxwell has put on his material and you put on your reply.

MR McCARTHY:   Your Honour, 15 June would certainly be a date in terms of submissions that the applicant would be able to have those submissions available.

HIS HONOUR:   Yes, all right.  Just give me a minute, Mr McCarthy, and I will come back to you.  Just sit down for a moment.

MR McCARTHY:   Thank you.

HIS HONOUR:   Is there a date of your motion seeking leave to intervene, Mr Maxwell?

MR MAXWELL:   Yes, your Honour.  The motion was dated 19 April 2001.

HIS HONOUR:   Yes, I see it.  This is what I propose.  I will read it out and then I will ask for any submissions.

(1)   Grant leave to the Women’s Electoral Lobby to intervene;

(2)   Direct that the applicants file and serve their written submissions in‑chief excluding issues of standing and discretion on or before 15 June 2001;

(3)   Direct that the Women’s Electoral Lobby file and serve its written submissions on or before 13 July;

(4)   Direct that the applicants file and serve their submissions in reply on or before 1 August 2001 –

and by “in reply” I mean including those matters they have not previously dealt with under the first round –

(5)   Stand over before me at 2.15 pm on 6 August for further consideration of the applications for intervention and directions generally;

(6) Any recipient of a section 78B notice who desires to exercise the right of intervention should notify the applicants, the Women’s Electoral Lobby and the other applicants for intervention on or before 3 August 2001.

So hopefully everyone who is going to be here will be here by the 6th.

(7)   Costs of today be costs of the cause.

Have you any difficulties with that date, Mr Maxwell?

MR MAXWELL:   No, your Honour, the dates are fine.  There is one matter I wish to raise.  We are indebted to your Honour for the grant of leave.  My learned friend answered your Honour’s question about the 78B notice in a way which rather took us by surprise.  The notice, as it stands, makes no mention of a want of power with respect to the Sex Discrimination Act.

HIS HONOUR:   I thought it did.  I was just reacting on what I have been told.

MR MAXWELL:   That is so, and as we read it, to quote it, it says:

The constitutional issue that arises is whether his Honour’s conclusion as to the said inconsistency is correct.

And as one reads the grounds in the draft order nisi, they are concerned solely with issues of construction and it apparently had been contended that various sections of the Commonwealth and State Acts should be read down in the light of what are said to be overriding principles of law.  But no issue is raised and, accordingly, none of the Attorneys would be on notice that it is proposed to raise any question of want of power with respect to the Sex Discrimination Act.

HIS HONOUR:   Well, that might be important, I think.  Yes, all right.

MR MAXWELL:   It is important also because, as your Honour rightly observed, some time has passed since these notices were served.  They are dated 6 November which makes it just a fraction short of six months since they were despatched and if the matter has now to be further delayed because of some proposed amendment to the 78B notice – although, perhaps on reflection, my learned friend will adhere to the view taken at the moment which is that it is as it was before his Honour in the Federal Court a question only of inconsistency.

HIS HONOUR:   Just pardon me a minute.  What I suggest, Mr McCarthy, is this:  order (2) I would amend so that it said:

direct that on or before 15 June 2001 –

which is the same date as is there now –

the applicants file and serve any revised section 78B notice, any revised form of draft order for relief under section 75(v) –

you may want to look at that ‑ ‑ ‑

MR McCARTHY:   Thank you, your Honour.

HIS HONOUR:   ‑ ‑ ‑ and their written submissions in‑chief, et cetera.

MR McCARTHY:   Yes, your Honour.

HIS HONOUR:   Now, Mr Tudehope and Ms Purcell, have you followed what has been going on?  In other words, we will look at it again when it comes back on 6 August and the prospective hearing date is in the August or September sittings.

MR TUDEHOPE: Just probably one thing emerges though. If, in fact, having read the submissions of either the applicant or WEL, an issue arises which we would want to cover and would need the issue of a section 78B notice, for example, a challenge to the jurisdiction of the Sex Discrimination Act itself, would it be relevant to issue that notice ourselves?

HIS HONOUR:   No, it would not.  I think you should speak to Mr McCarthy.  I think he has already got that on board.  Now, it would assist though if on 6 August you brought with you any outline of your written submissions touching on any matter that you say is not covered by the two main protagonists.  I think that would be quite useful if you turned up at Court on the 6th, having reviewed what they have said, if there is anything you would want to say that, as you see it, is a distinct and untouched matter but relevant matter.  All right.  Is there anything else?  I will just go through them again so we make sure we have got it all down.

(1)   Grant leave to the Women’s Electoral Lobby to intervene;

(2) Direct that on or before 15 June 2001 the applicants file and serve any revised section 78B notices and any revised form of draft orders for relief under section 75(v) of the Constitution together with their written submissions in‑chief, excluding questions of standing and discretion;

(3)   Direct that the Women’s Electoral Lobby file and serve its written submissions on or before 13 July 2001;

(4)   Direct that the applicants file and serve their written submissions in reply on or before 1 August 2001;

(5)   Stand the matter over for further directions before me at 2.15 pm on Monday, 6 August –

and included in that is the further consideration of the other applications for intervention –

(6) Any recipient of a section 78B notice who desires to exercise the right of intervention notify the applicants, the Women’s Electoral Lobby and the other applicants for intervention on or before 3 August;

(7)   Costs of today be costs of the cause.

MR McCARTHY:   If your Honour please.

HIS HONOUR:   Adjourn the Court.

AT 2.48 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 6 AUGUST 2001