Australian Catholic BishopsConference & Anor, Ex Parte the Hon Justice Sundberg C21/2000

[2000] HCATrans 611

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry  No C21 of 2000

In the matter of -

An application for Writs of Mandamus and Certiorari 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

Prosecutor/Applicant

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 OCTOBER 2000, AT 3.32 PM

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, as the case may be.  (instructed by Barker Gosling)

HIS HONOUR:   Mr Jackson, you do not have a contradictor?

MR JACKSON:   No, your Honour, I understand no other person is attending and the Court has been notified to that effect.

HIS HONOUR:   Yes, I understand that.  Mr Jackson, can I just ask you a couple of questions before you begin?  It may have been in the material and I may have missed it, but you applied to intervene.  You made an application in the alternative before Justice Sundberg to intervene or, in lieu of that, to be allowed to make submissions as an amicus.  Is that right?

MR JACKSON:   Yes, your Honour.  We asked for the former and got the latter.

HIS HONOUR:   You got the latter.  Now, his Honour’s decision was in favour of the third respondent, one of the respondents anyway ‑ ‑ ‑

MR JACKSON:   Yes.

HIS HONOUR:   The State of Victoria was represented, is that right?

MR JACKSON:   It sat mute.

HIS HONOUR:   Sat mute, yes.

MR JACKSON:   We were the only party, and I am sorry to interrupt your Honour ‑ ‑ ‑

HIS HONOUR:   You were the only contradictor there.

MR JACKSON:   Only contradictor.

HIS HONOUR:   So there was no contribution at all to the argument, on your side of the record, as it were, or the side of the record you wanted to argue, so that that explains why there has been no appeal and there is unlikely to be any appeal to the Full Federal Court, is that right?

MR JACKSON:   That is so, your Honour, yes.

HIS HONOUR:   Has the time elapsed, by the way?

MR JACKSON:   It would have, I think, your Honour, by now, because the order, your Honour will see, was 28 July and that is beyond what would be the ordinary time of 28 days, I think, your Honour – 28 or 21.

HIS HONOUR:   So we would assume that the time is up and it seems very unlikely that there would be an appeal in view of the course that proceedings took.

MR JACKSON:   Yes.

HIS HONOUR:   Mr Jackson, would there have been any reason why you could not have appealed against the refusal of your application to be a respondent, as opposed to merely being an amicus?  The reason why I ask you that will be obvious because you are really coming here without there being an intervening decision by an intermediate court which you would appreciate is a matter ‑ ‑ ‑

MR JACKSON:   Yes.  Could I give your Honour a summary of what we say? 

HIS HONOUR:   Thank you, Mr Jackson.  Mr Jackson, I had mentioned 20 minutes but I am not holding you to that because I did not appreciate at that time that there would be no appearance on the other side and that I would not be getting any assistance, as it were, from any contrary argument.  Will I just read this?

MR JACKSON:   Yes, your Honour.  I was going to take your Honour through it but something that is germane, I think, to the particular matter that your Honour was adverting to a moment ago can be seen, for example, in paragraph 10.  It is not quite what your Honour was putting to me but ‑ ‑ ‑

HIS HONOUR:   Mr Jackson, if I were to grant an order nisi, do you seek to be a respondent still?  Is that a matter that you would say that there has been an error in respect of?

MR JACKSON:   Your Honour, we have not appealed against that, but what we do say is that we have sufficient standing to obtain either of the prerogative writs if ultimately the Court were minded to grant them and we do not really need more than that.  Could I say, your Honour, this is not really a case where there is no intermediate appellate decision on the issue, and why I say that is that the South Australian legislation - and your Honour will see this referred to in paragraph 19(b) of those submissions, which is not exactly the same, but section 22, of course, of the Sex Discrimination Act is - has been given a similar operation by the Full Court of the Supreme Court of South Australia.  So that the position which would then obtain is, let us say, if one were to go to the Full Court of the Federal Court in this case, the result would be either that there would be a conflict between two intermediate appellate courts or else the Full Court would take a similar view.  But in either event, your Honour, one might think that there was some possibility the matter would come here in any event.

But the second point we would make about it is that that is referred to in paragraph 19(a), and that is that this is an important constitutional issue.  The Court very frequently deals with the constitutional issues as being the first Court in that regard, and it is a matter where it would be appropriate for the Court to deal with it.  That does not deal with precisely what your Honour put to me about the intervention but we would submit the intervention aspect of it is really no longer necessary.

HIS HONOUR:   I just wonder whether you case might not have been strengthened if you persisted in wishing to be a party.  You become a party if you get an order nisi, of course.

MR JACKSON:   Yes, your Honour.  If it be that your Honour took another course, and that is the alternative sometimes done, referred to in paragraph 18 of “directing that the application be made by notice of motion to a Full Court”, then we could add to such an application, your Honour.

HIS HONOUR:   I will just read your written outline first, Mr Jackson.

MR JACKSON:   Yes.  I am sorry to keep interrupting your Honour, but could I say one further thing, and that is, I am not certain if your Honour has read an affidavit that was filed this morning in the matter.  It is a short affidavit by Warwick John Neville sworn today, which ‑ ‑ ‑

HIS HONOUR:   Yes, I did.  It had the transcript of a television interview.

MR JACKSON:   Yes, it is simply designed, your Honour, to indicate that first of all, as a general proposition, in Victoria the issue is one that remains alive.  Secondly, the particular case is one that - and I do not mean to make a pun - is in existence.

HIS HONOUR:   Mr Jackson, I am just looking at paragraph 10 of your submissions.  Is there a particular paragraph in that CFMEU Case that I should look at?

MR JACKSON:   Yes, your Honour, it is page 535.  The particular passage commences about halfway down the page in the – perhaps I should say, if one looks at the bottom of page 534, you will see the Full Court quoting what was said by Justice Hutley in Corporate Affairs Commission v Bradley about an amicus curiae and an intervener.  Then, at about point 2 on page 535, he discusses the position.  Their Honours say:

His Honour went on to describe the position of an amicus curiae as then understood in Australian law in the following terms -

and a quotation from Jowitt’s Dictionary, then a similar definition appears in Black’s Law Dictionary, the detailed statement of the position of an amicus curiae set out in the judgment of the appellate court of Indiana, where the court said, and then it is the last four or five lines of that passage:

He can reserve no exception to any ruling of the court, and of course cannot prosecute an appeal.

HIS HONOUR:   What was the basis upon which counsel was allowed in in the Dam’s Case?  Did you appear in the ‑ ‑ ‑

MR JACKSON:   That is a little while ago.

HIS HONOUR:   I think it may have been because the foundation, or whatever it was, or society, said that they were in a position to argue better than anybody else the effects that Australia’s decisions might have upon other wilderness societies, or something to that effect, I think.

MR JACKSON:   Yes.  Your Honour, it had, I think, something to do with the – I just cannot recall the exact name now - but the United States case involving defenders of the wildlife, or something about – and there was some analogy drawn there, I think, and your Honour – this is 17 years ago.  The other thing about it is, I think in that case other persons sought to appear either as interveners or as amici and including, with some annoyance, people who were descendants of the Aboriginal population of Tasmania who appeared in response to a submission made by one of the counsel, that they did not exist…..So, I think your Honour might find that, in fact, very little was said on behalf of those persons but they adopted what was said by one of the sides - probably by the Commonwealth, I should think.

HIS HONOUR:   In any event, allowing them in even as an amicus may not have been the only unprecedented thing that was done in that case.

MR JACKSON:   No.  May I indicate to your Honour the passage to which we refer in Pearce when your Honour comes to paragraph 11.  I think your Honour should have a loose copy of Pearce.

HIS HONOUR:   Yes.

MR JACKSON:   The particular passage, your Honour, is on page 488.  It is the paragraph commencing about point 7 on the page, commencing “The power of this Court to make declaratory orders”, and then it is really the next sentence:

When, as in the present case, the parties are substantially in agreement as to the terms of the proposed declaratory relief, I consider the presence before the court of the Attorney-General is highly desirable before the court pronounces upon the…..invalidity –

et cetera.  Now, your Honour, the Attorney-General ‑ ‑ ‑

HIS HONOUR:   You say that it is a pity that that injunction was not followed in this case, that there had been some submissions of the kind that you would want to make but which just were not made in the case, apart from you.

MR JACKSON:   Well, we, in fact, became the Attorney-General for the purposes of proceedings.

HIS HONOUR:   It would be very unusual, Mr Jackson, this situation, would it not, really?  It really is quite an exceptional case in the sense that, but for your presence, there would not have been an argument presented at all, on ‑ ‑ ‑

MR JACKSON:   Well, your Honour, a real question, I suppose, would have arisen at that point, not one of jurisdiction but of the propriety of making the order, in the absence of someone contradicting it.

HIS HONOUR:   I think Sir Harry Gibbs said something about the necessity for a contradictor, too, in one of those injunction cases.

MR JACKSON:   Yes.  Your Honour, the test really seems to be in terms of jurisdiction, and I mean that in a slightly loose sense, but in terms of perhaps the power to make a declaratory order, there needs to be a person who is a party, who has an interest to resist it but, of course, there are parties who have an interest to resist it, but it is a question whether the interest is manifested in actual participation.  That seems to go to discretion to make the order.

HIS HONOUR:   It is a curious thing, in a sense, for a legislator to come along and say, “Well, even though the legislation appears to say something in quite clear terms, we are not going to maintain an argument that that legislation is going to have any effect or be enforceable”.  Is that what the situation was?

MR JACKSON:   Yes, your Honour, of course, what happens - and I do not mean this particularly in relation to the Victorian Government, and it has happened in relation to other governments over the years - is that the views in relation to existing legislation may differ depending on when a new government comes in.

HIS HONOUR:   Well, it shows a disposition not to enforce legislation, does it not, or not to seek to uphold the term “legislation”, rather than the other course which would be repealing it?

MR JACKSON:   Yes, your Honour, where there are, of course, bicameral legislatures, that may be more or less difficult.

HIS HONOUR:   That is reality within which government’s executives have to operate.

MR JACKSON:   Your Honour, I appreciate that, but I simply mention it.

HIS HONOUR:   I know, but one would wonder what the reaction would be if a government got in and said it was not going to enforce half of these statute criminal laws because it did not like it rather than taking it off the statute books.

MR JACKSON:   Your Honour, that can give rise to difficulty, particularly in relation to ‑ ‑ ‑

HIS HONOUR:   Mr Jackson, I am minded to refer the case to the Full High Court but I would really like some clearly crystallised questions.

MR JACKSON:   Your Honour, could I say, in that regard – could I take your Honour to the draft order nisi.

HIS HONOUR:   That is exhibit “C”, is it?

MR JACKSON:   Yes, that is so, your Honour.  If I could say, your Honour, that paragraphs (h) and (i) of that are ones which are not pursued.  Now, the remainder of the matter really goes to what can be described, I think, as three arguments.  We had indicated, your Honour, the principal argument for the purposes of brevity, and that is a very simple question of the effect of section 32 on section 22 in the federal Act, and that, your Honour, is a very short question which is raised by paragraphs (a), (b), (c) and (d) of that order.  Now, the second question which is really ‑ ‑ ‑

HIS HONOUR:   Mr Jackson, do you need all of those paragraphs?

MR JACKSON:   Well, I was going to say, your Honour, bound up in paragraphs (c) and (d) is another question decided against us, and that is the question whether the services provided under the State Act are services within the meaning of the Sex Discrimination Act. But, your Honour, the third question is that which is referred to in, I think, paragraph (e), and that is a question whether section 7B of the Sex Discrimination Act applies to section 8.  That is another issue that was decided against us.  Now, your Honour, I think it is right to say that the remainder of the paragraphs, (f), (g), (j) (k) and (l), are paragraphs that really set out matters of argument in support of other submissions rather than things that are entirely separate.

May I say, however, that if your Honour were minded to direct that the application be made by notice of motion to a Full Court, we will endeavour to put in the notice of motion perhaps a little more precisely the arguments than they are expressed in the manner in which they are in the order nisi.

HIS HONOUR:   I think the Court would have an expectation that the grounds be specified now ‑ ‑ ‑

MR JACKSON:   It would be, your Honour, yes.

HIS HONOUR:   Why is it not sufficient – you tell me if it is sufficient - that I direct that you make an application upon the basis of grounds (a) to (e)?  Do you need the others?  In the ordinary course you will be filing written submissions.  Do you need something else?

MR JACKSON:   Well, your Honour, I do not think so.  May I invite your Honour, however, to give us leave to add a further ground if appropriate?

HIS HONOUR:   I will not do that.  I think I will just direct that you make your application by notice of motion to the Full High Court and if you want to make any amendments, I am sure that you will make them in your notice of motion.

MR JACKSON:   Yes, thank you, your Honour, we would be content with that.  The second sentence of paragraph 18 of our submissions reflects the wording of Order 55 rule 2.

HIS HONOUR:   Mr Jackson, I am just wondering whether I should give any directions with respect to the matter of standing or whether that matter is sufficiently apparent as an issue that I need not do so.

MR JACKSON:   Well, your Honour, no doubt, if we are making the application to the Full Court, if ‑ ‑ ‑

HIS HONOUR:   You will put in your best arguments in writing on that, in the ordinary course, as you would on any issue.

MR JACKSON:   Yes, and we would have to satisfy the Court of the appropriateness of granting it to a person not a party to the proceedings.

HIS HONOUR:   You have already given section 78B notices, I take it, in respect of this application?

MR JACKSON:   They have not been given in respect of this application, your Honour.

HIS HONOUR:   No, but they will be given if I give you a direction.

MR JACKSON:   Yes.

HIS HONOUR:   All right.  Well, I will make an order directing that the application be made by notice of motion to a Full Court.  I will adjourn this application for that purpose and simply reserve any question of costs although nobody has incurred any at this stage, have they, apart from you?

MR JACKSON:   Well, I wonder would your Honour – it does not matter if your Honour is reserving the question of costs, I was going to invite your Honour to certify that it was a matter appropriate for the attendance of counsel.

HIS HONOUR:   You have been a great deal of assistance; of course I would, Mr Jackson.  I certify accordingly.  Is there anything further then?

MR JACKSON:   No, your Honour.  Your Honour may care to fix a time within which we do that but that could be done within seven days.

HIS HONOUR:   No directions required?

MR JACKSON:   I do not think so, your Honour, no.

HIS HONOUR:   It is your client who is anxious to have the matter determined expeditiously anyway, as I understand it.  All right, well, if there is nothing further then, Mr Jackson. 

MR JACKSON:   No, your Honour.

AT 3.57 PM THE MATTER WAS CONCLUDED