Australian National Car Parks Pty Ltd ACN 67 076 302 871 v The State of New South Wales
[2013] HCATrans 228
[2013] HCATrans 228
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S145 of 2013
B e t w e e n -
AUSTRALIAN NATIONAL CAR PARKS PTY LTD ACN 67 076 302 871
Plaintiff
and
THE STATE OF NEW SOUTH WALES
Defendant
Summons for directions
GAGELER J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 24 SEPTEMBER 2013, AT 9.32 AM
Copyright in the High Court of Australia
MS V. CULKOFF: May it please the Court, for the plaintiff. (instructed by Steven Klinger Solicitor)
MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR S. ROBERTSON, for the defendant. (instructed by Crown Solicitor (NSW))
HIS HONOUR: Now, Ms Culkoff, what is your constitutional point?
MS CULKOFF: Your Honour, it is, in my submission, a simple one in that the provision in the statute, section 279 of the Road Transport Act 2013, confers upon a State court of New South Wales a function which I say substantially impairs its institutional integrity and is therefore repugnant to and incompatible with its role under Chapter III, notably section 77(iii) of the Constitution, as a repository of federal jurisdiction as part of the integrated Australian court system for the various reasons that I have set out at paragraph 15 of the statement of claim and dealt with in some detail in the plaintiff’s substantive submissions. Essentially, your Honour, we say it offends the Kable principle and the authorities that have applied and expanded on that principle.
HIS HONOUR: Now, the provision itself is directed to the position of the authority in proceedings before State courts. Why is it that this matter is appropriate to be dealt with in the first instance by the High Court?
MS CULKOFF: In my respectful submission, your Honour, there is a vehicle, a special case that lends itself most appropriately for the circumstances of this case and that is for a number of reasons. The issue before the Court would be of extremely narrow compass. It is purely one involving the construction of a single provision in a statute, namely section 279 of the Road Transport Act 2013.
The questions of fact are also short and uncomplicated and are unlikely to be contested, in my submission. There will be no findings of fact necessary. The Court will not need to engage, in my submission, in any intensive case management, your Honour. There are no real issues joined between the parties which need to be resolved by judicial determination at first instance and, I think as I have expanded in my submissions, none of the impediments or concerns raised in the decision relied on by my friend, Mr Solicitor‑General, in Readhead or, indeed, in the authority of Li that I refer to in the submissions, are applicable here.
The Court, in my submission, your Honour, is not diverted from its principal functions. Rather it is facilitating a quick and cost‑effective resolution of a very narrow constitutional issue. A special case as allowed under rule 27.08 is a vehicle designed for matters such as this, in my respectful submission.
The plaintiff has in fact put its full case before the Court, including its substantive submissions and your Honour has a copy, I think, of the plaintiff’s draft special case which has been provided to the defendant. The plaintiff proposes a very short timetable to enable the questions of fact to be agreed in a final form [INAUDIBLE].
Your Honour, the only other thing is that – and this may be more appropriately dealt with in submissions in reply – the defendant’s position, as I understand it, is it seeks a remittal on the basis that section 279 is merely regulating the court’s practice and procedure and, with all due respect to my friend the Solicitor‑General, your Honour, paragraph 2 of the submissions of the defendant totally mischaracterises the operation of section 279. It does not, your Honour, as submitted by the defendant, limit the power of the courts to make preliminary discovery under Part 5 of the Uniform Civil Procedure Rules. On the contrary, your Honour, in my submission, it presupposes that in fact an order under Part 5 for preliminary discovery rule be made. If your Honour goes to the statement of claim where the section is set out at paragraph 13 your Honour will see there that subclause (3) provides:
preliminary discovery means an order under Part 5 . . . or any requirement imposed for a similar purpose by or under any other Act, rule or law.
In my submission, your Honour, it is once the order is made in the normal course and applying the normal principles applicable to preliminary discovery, then and only then does section 279 bite. Subclause (1), if your Honour has a look at that, which is the key operative provision itself, also states that:
The Authority cannot be required by preliminary discovery to disclose any information –
So, in my submission, it presupposes that an actual order is made.
HIS HONOUR: Is that essential to your constitutional argument, that construction?
MS CULKOFF: No, your Honour, but it is a reason as to why the proceedings ought not to be remitted because on the defendant’s case that argument is put forward to demonstrate that the plaintiff’s case is a weak one which, in my submission, is not the case.
HIS HONOUR: Yes.
MS CULKOFF: I only raise that with your Honour to just indicate that the words used in section 279 could not be more plain and they simply do not permit the construction that is put by the defendant. There have been, your Honour, two Court of Appeal decisions in the Supreme Court, one before a bench of three and another before a bench of five. Both those decisions extensively dealt with the test applicable under Part 5 for preliminary discovery, particularly in the circumstances when dealing with private car park operators.
In both those instances, your Honour, the court elucidated on the test that is to be applied and, in the first instance, in the 2007 Court of Appeal decision, the court determined that what was required was a demonstration that there was some intention to sue which was not immutably fixed or unqualified. The RTA, the Roads and Traffic Authority, revisited that very point and, on appeal, not against my client but certainly against one of my client’s competitors in Roads and Traffic Authority of New South Wales v Care Park Pty Ltd [2012] NSWCA 35 the court there revisited the test and said what is really required is a desire and not an intention to commence proceedings, in other words the threshold was something less than an intention and that in itself was conditional and could be abandoned for good reason.
Section 279, your Honour, in my submission, contrary to what is put by the defendant, does nothing to alter that process and that test. It does not in any way elucidate as to how that test is to be applied, how the facts are to be confined or expanded and the application of Nicholas v The Queen relied on by the defendant is simply not applicable in the present case.
If your Honour has a look at that decision, section 15 there extensively dealt with what was required by the court in determining a factual scenario and that provision in the amending Act and the explanatory memorandum was designed to alter the rule of evidence laid down in an earlier decision where certain circumstances relating to the involvement of law enforcement officers in the importation of narcotic goods in the course of controlled operations can be shown to have existed.
In that case, essentially, your Honour, where an officer was operating undercover as it were and had some involvement then all those matters were to be taken into account. Section 279 is not of that ilk in any way, shape or form, in my submission [INAUDIBLE].
HIS HONOUR: …..appreciation of the way in which you seek to put the case. Thank you.
MS CULKOFF: I am just directing myself to the fact that section 279 is not regulatory in nature as is put by the defendant, your Honour.
HIS HONOUR: Yes.
MS CULKOFF: That also is a basis for not remitting the proceedings and referring them to the Full Court.
HIS HONOUR: Thank you.
MS CULKOFF: Thank you, your Honour.
HIS HONOUR: Mr Solicitor.
MR SEXTON: If the Court pleases. Your Honour, the preliminary discovery rule is one that is familiar in all jurisdictions and what we have here really is a legislative exception to the operation of the rule. We would say that in terms of the authorities in relation to the Kable principle that it is a rather fanciful argument. We would say that it would undermine the institutional integrity of the court and that this Court is entitled to take account of the prospects, not in a conclusive way at this stage, but the prospects of success in relation to whether it is going to hear the case at first instance. It may of course ultimately find its way back to this Court, depending if it were to be remitted to the Supreme Court of New South Wales, but the question is whether it should be heard at first instance. We would say the Court is entitled to take those considerations into account.
In relation to factual matters, my learned friend says that they are in relatively small compass. That may be so, although we are not sure at the moment in a sense how the business of my learned friend’s client operates, how one, in a sense, gets to this stage of seeking orders for preliminary discovery.
There is an issue as to whether – it has been raised by my learned friend – those orders for preliminary discovery are in a sense really sought for the purposes of future litigation in any event. There may be other factual questions that arise in relation to this such as whether there are other means available of obtaining this information.
Now, I just raise all those matters because they are something that could be determined in a court below rather than first instance in this Court. So otherwise I think, your Honour, we have referred in our written submissions and we have made the argument that we think this matter should be remitted to – if it were to be remitted I think to the Common Law Division of the Supreme Court of New South Wales ‑ ‑ ‑
HIS HONOUR: That would be a matter for the Supreme Court of New South Wales.
MR SEXTON: Yes. There are provisions in the rules, as your Honour appreciates. If your Honour pleases.
HIS HONOUR: Ms Culkoff.
MS CULKOFF: Your Honour, whether the information sought is for the purpose of future litigation or not is something squarely within the realm of Part 5.
HIS HONOUR: Yes.
MS CULKOFF: It is unrelated to the operation of section 279 and whether it is or is not constitutionally invalid. Other means available for obtaining of information – the 2007 Court of Appeal decision looked at whether there was a process available under freedom of information and based on evidence in the courts below the Court of Appeal accepted that that was not a practical course. In my respectful submission, both of these matters are matters that can be readily settled in terms of any questions of fact that would go forward if the case were to remain here.
HIS HONOUR: Thank you very much.
MS CULKOFF: Thank you, your Honour.
HIS HONOUR: By a writ of summons and statement of claim filed in the original jurisdiction of this Court, the plaintiff seeks a declaration that section 279 of the Road Transport Act 2013 (NSW) is constitutionally invalid. That provision is addressed to the amenability of a State authority, the Roads and Maritime Services Authority, to preliminary discovery under Part 5 of the Uniform Civil Procedure Rules 2005 (NSW).
Although the question raised by the application in the original jurisdiction of this Court is narrow, it is likely to turn at least in part on questions of the construction of the particular provision which is challenged. As yet there is no agreement between the parties as to the facts. That said, I accept that any factual dispute is likely to be within a narrow compass.
Not every constitutional case falling within the original jurisdiction of this Court is appropriate to be dealt with in the original jurisdiction of this Court. In Ravenor Overseas Inc v Readhead (1998) 72 ALJR 671 at 672, Chief Justice Brennan said that:
The power of remitter contained in s 44 of the Judiciary Act 1903 (Cth) is designed to ensure that this court is not diverted from its principal functions by the need to hear and determine matters in the original jurisdiction which could properly be brought in an Australian trial court.
Not only is this Court diverted from its principal functions by hearing matters in its original jurisdiction in those circumstances, but it is deprived, in such a hearing, of the benefit of the views of lower courts.
It is, in the present case, in my view, appropriate to accede to the submission of the defendant that the proceeding be remitted to the Supreme Court of New South Wales.
Ms Culkoff, you have seen the form of the orders proposed by the Solicitor‑General. Do you have any comment?
MS CULKOFF: No, your Honour.
HIS HONOUR: The orders I make are:
1.The proceeding be remitted to the Supreme Court of New South Wales.
2.The proceeding continue in that Court as if the steps taken in this Court were taken in the Supreme Court of New South Wales.
3.The Registrar of this Court forward to the proper officer of the Supreme Court photocopies of all documents filed in this Court.
4.The costs of these proceedings to the date of remission be costs in the proceedings in the Supreme Court.
MS CULKOFF: As the Court pleases.
MR SEXTON: If the Court pleases.
AT 9.53 AM THE MATTER WAS CONCLUDED
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