Babington & Ors v Commonwealth of Australia

[2015] HCATrans 44

[2015] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S321 of 2014

B e t w e e n -

CARL WILLIAM BABINGTON

First Plaintiff

GRAEME JEFFREY ADAMS

Second Plaintiff

STEVEN BARRY HUNTER

Third Plaintiff

RALPH LAVENDER

Fourth Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

STATE OF NEW SOUTH WALES

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 4 MARCH 2015, AT 10.02 AM

Copyright in the High Court of Australia

____________________

MR P.E. KING:   If the Court pleases, I appear for the plaintiffs, Mr Babington & Ors.  (instructed by Graeme Morrison Law)

MS K.M. RICHARDSON:   May it please the Court, I appear for the Commonwealth.  (instructed by Australian Government Solicitor)

MS J.E. DAVIDSON:   May it please the Court, I appear for the State of New South Wales, the second defendant.  (instructed by Crown Solicitor (NSW))

HER HONOUR:   Yes, Mr King.

MR KING: Your Honour, it is our application that the matter stand over to Wednesday, 22 April for the purpose of permitting us under rule 27.08 of the Rules to serve a case stated with a provision that if the defendants objected they should do so within 14 days. Your Honour, I have read the written submissions of the defendants. They do, of course, take objection to aspects of the pleading, but what they do not do is answer the proposition which is at the heart of Mr Babington’s case and his colleagues that there is one question which needs to be determined by the High Court, namely whether or not section 123 of the Constitution which requires any alteration of State boundaries to be determined by an election of the people of the State of New South Wales to have been addressed.

This question was addressed by Justices Gummow, Kirby and Kiefel in the matter of Link v Minister for Primary Industries (2008) and I have given my friends a copy of that transcript.  The short point was that there was an attempt to strike out Mr Link’s case in this Court which raised that very question.  After discussion, Justice Gummow pointed out that the State Titles Act and the State Powers Act made by the Commonwealth in 1980 really were an asset to the Seas and Submerged Lands Act decision of this Court in 1975 it may not be valid if section 123 prevented those Acts operating in the way that Mr Link complained of, and Justices Kirby, Gummow and Kiefel then rejected the summary dismissal application in relation to that matter.

I mention that because unfortunately Mr Link who was an abalone fisherman such as the plaintiffs are here, did not have the resources to press on with the case and it ultimately languished and was dismissed. These issues are now raised fairly and squarely by my client. We wish to have the opportunity to put a case stated. We think the facts are indisputable and will be necessarily admitted. They are not complicated, but the underlying legal issues, we acknowledge, are complex but they are appropriate to be determined in the course of deciding that question, namely whether or not that critical legislation passed the test required by section 123. If your Honour pleases.

HER HONOUR:   Mr King, before we get to consideration of a case stated, there are a number of criticisms of the pleading which you have not addressed and it may well be you accept.  On the face of it, there would seem to be considerable force to the submissions of each of the defendants that the statement of claim does not conform to the provisions of rule 27.4. 

In the ordinary course of events, one would expect those deficiencies to be remedied.  An opportunity for the defendants to seek such further and better particulars of the claim that is properly articulated and then to serve a defence and perhaps thereafter there might be consideration of whether or not the matter was suitable for a stated case or a special case.  The gravamen of the complaint by each of defendants, as I apprehend it, is twofold:  firstly, this statement of claim needs a great deal of work and rather suggests the need for intensive case management and it is no part of the function of this Court to be involved in that.  Secondly, amongst the claims that are articulated is a claim for compensation and it is proposed in order 8 of the statement of claim that the proceeding be remitted to another court or tribunal in order to determine and fix that compensation.

I do not purport for a moment to have addressed all the matters that are raised in the submissions filed by the defendants but those two matters, at first blush, Mr King, have very real force to them.

MR KING:   Thank you, your Honour.  Firstly, I do acknowledge that the writ of summons requires attendance, and in the short minutes that I proposed to my friends, we proposed exactly that; that is to say, the statement of claim and the writ of summons would need to be drawn into conformity with the special case stated so that there is no suggestion of any inconsistency.  I acknowledge that that has to be done, and that is what I provided for in the short minutes.  Of course, once they have seen the proposed special case and the way in which the reframed writ of summons is presented, the issues that have been raised may not present a difficulty; in fact, we will be suggesting that they do not.

The real issue is the one that I have just identified a while ago.  It was not as neatly articulated, as your Honour has properly acknowledged and I acknowledge, as it might have been, but it is that which we wish to bring before the Court, and a short opportunity along the lines I have suggested is, we submit, the best way to do it.

HER HONOUR:   Mr King, amongst other things, your proposed orders seek a declaration that the plaintiffs have a right for fish for abalone in the seas adjacent to the coast of New South Wales.  There is a complaint respecting the absence of any identification in this pleading of the basis of that right.  I pick on merely one aspect of it; if I could turn to your submissions, you say that:

The question intended to be stated is a question of law concerning the validity of the Offshore Constitutional Settlement . . . the Commonwealth laws which underpin it and the State laws which depend upon it, [that being a question] which directly affects the livelihood and interests of the Plaintiffs.

That is putting matters at no small level of generality when one comes to see that the effect of the proposed orders would require declarations of invalidity of the contents of both the Commonwealth Acts, some 22 New South Wales Acts, and the Abalone Management Plan made under the Fisheries Management Plan of New South Wales.  There is identified in the submissions, I think it is of New South Wales, a number of questions of law that it is suggested would arise in addition to those that might be thought to be articulated in this very diffuse pleading.  Why is it the appropriate course to remit the matter to the Federal Court where it can be subject to case management, and at some time the issues of law crystallised in a way that would enable their efficient disposition?

MR KING:   I acknowledge, your Honour, that that would be the usual course, but having regard to the passage which I have referred to in Link’s Case and the decisions of Justices Gummow, Kiefel and Kirby, and the identification of the issue to which I have referred, what we are proposing – we think it is a sensible proposal in the interests of just, cheap and quick, and also of the proper use of this Court’s resources – is a short adjournment, an opportunity to put the case stated.  That will then allow the defendants to say “yay” or “nay”.  If we come back on 22 April and they say “nay”, then I probably do not have a leg to stand on.  But on the other hand, they have not, we respectfully submit, engaged with the gravamen of the nature of the case and that would best be done by looking at the draft special case stated, so that on the next occasion, we will be able to assist the Court in that way.

HER HONOUR:   This is a proposal that you prepare a draft special case before any defence is filed whilst your pleadings are in a state that you acknowledge do not conform to the rules, have I understood that rightly?

MR KING: Yes, and that will not be difficult – that is not a problem, we say, for this reason. That if, as I have submitted earlier, the facts are not truly in issue and cannot be put in issue because of their basal nature, then the issue to which I have referred, the issue about section 123 will emerge more clearly and, we say, very clearly, so it is ‑ ‑ ‑

HER HONOUR:   Mr King, the Court does not decide abstract interesting questions of law, it deals with a real life controversy.  At this stage, the defendants draw attention to the fact that they simply do not comprehend when the pleading, as it stands, the right that you assert or the basis of the claims that you make.

MR KING:   In relation to the right, your Honour, in truth, it is an interest not a right and it is merely their interest as fishermen to ply their trade off the coast of New South Wales which they have done for a very long time and that is not in issue because the defendant, the second defendant, has issued licences in that regard.  That is just one example of how that issue could be resolved, in our respectful submission.  All we are asking for, your Honour, is an opportunity to make clear precisely what it is we are asking the Court to decide.  We will do that.  It will give the defendants, also, a fair opportunity to say “yay” or “nay” or you should address this point because you have not addressed that point properly.

There is another reason why it is appropriate for it, your Honour.  The Port Macdonnell Fishermen’s Case is said to be an impediment to the plaintiff succeeding in this matter.  Your Honour may recall that that case was, in a sense, stage two after the Seas and Submerged Lands Act Case.  We say, in this case, Port Macdonnell is either distinguishable or, in one respect, should not be followed because the issue that we are raising was not considered in that case.  That is why it is an important matter to be referred in this Court, if possible, because the only result of it being sent off to the Federal Court is that it will end up back here on that very point, and that is a waste of the resources not only of the Federal Court but of this Court.

HER HONOUR:   Yes.  Anything further?

MR KING:   No, your Honour.

HER HONOUR:   Yes, Ms Richardson.

MS RICHARDSON:   Thank you, your Honour.  As your Honour will have read in the submissions of both defendants, we submit that the number of deficiencies in the statement of claim are not only significant, they are quite overwhelming in respect of each, almost each and every paragraph of the statement of claim.  Would your Honour be assisted by me going through the statement of claim?

HER HONOUR:   No, I do not intend to get involved in that exercise, Ms Richardson.  As I have indicated to Mr King, I see force to the submission that you make and that New South Wales makes, which is that this pleading is going to require considerable work to be put in proper order and it rather enlivens a concern about the need for case management.  I am mindful of that.

MS RICHARDSON:   May it please the Court.  What I would seek to emphasise, your Honour, we have cited a transcript at paragraph 8 of the Commonwealth’s submissions of Chief Justice French in a similar, I would submit, a similar procedural case where it was similar matter in the sense of some factual and legal complexity; that was a water management matter, but we quoted the relevant lines of Chief Justice French where he decided ‑ ‑ ‑

HER HONOUR:   Yes.

MS RICHARDSON:   That was a similar matter, if I may submit, in that there were identified significant inadequacies in the pleading and they were agitated at some length before Chief Justice French, and his Honour observed as part of giving judgment that it was apparent from the pleadings that there were going to have to be number of directions hearings in order to try and ready the matter.  In our case, we have already foreshadowed, and it is apparent from the state of the pleading, that there is likely to be strikeouts in relation to the pleading and, as his Honour observed, it is not the role of this Court to spend time readying a matter to see whether at the end of that case management process, it might be appropriate for referral to the Full Court.  It is just not the appropriate function of this Court.

HER HONOUR:   Yes.

MS RICHARDSON:   His Honour observed that based on the pleading, it was apparent that it would take a large amount of case management to get it into shape for hearing, and so that transcript is, in my submission, on all fours with the problems in this case.

HER HONOUR:   Yes.

MS RICHARDSON: Next, my learned friend points to section 123 of the Constitution to submit that there is something particularly interesting or important question to be determined in this matter. We say that that does not raise a particularly significant matter and we say section 123 is not engaged. But putting that to one side, even if it were engaged, which we say it is not, that does not deal with the problems that this case, like other fisheries cases that have worked their way through the Federal Court, invariably involve complex case management and complex questions of law, in fact what your Honour has already adverted to. So, we say the section 123 point makes no difference to the underlying reason why this matter should be remitted.

In relation to the transcript in that the Link Case that my learned friend places some emphasis on, that is not a decision of the three judges of this Court. That is a transcript in a removal application where Justice Gummow raised an idea about section 123 ‑ ‑ ‑

HER HONOUR:   Yes, I understand.

MS RICHARDSON:   ‑ ‑ ‑ in 2008, and I note that the 123 point was raised in the Full Court in a case of Alcock that Mr King was in but it was abandoned at hearing and not even pursued in the hearing. So we would take issue with the suggestion that there is something particularly compelling about section 123. In terms of the orders that my learned friend proposes, your Honour will see that these orders implement the plaintiff’s proposed course, in effect that notwithstanding the significant deficiencies in the pleading at order 3 that they be given an opportunity in the High Court to re‑plead their statement of claim and summons and that they serve a special case prior to any of the defendants putting on a defence ‑ ‑ ‑

HER HONOUR:   Yes.

MS RICHARDSON:   ‑ ‑ ‑ which is obviously an unusual course, in my submission, and, in any event, it does not deal with the fact that we have foreshadowed strikeouts will be likely in relation to this type of pleading.  So what my learned friend is asking your Honour to do is to send this matter down a pathway of intensive case management in the High Court which, in my submission, is not the appropriate course.  So, unless I can assist your Honour, those are our submissions.

HER HONOUR:   Thank you, Ms Richardson.  Ms Davidson.

MS RICHARDSON:   Sorry, we have some short minutes of order that implement our – they just reflect what is at the conclusion of our submissions.

HER HONOUR:   Those are the orders that are proposed, I think, in Part 3 of your submissions, is it?

MS RICHARDSON:   Yes, your Honour.  We have a physical copy here which does not assist your Honour in Canberra but we do have a copy of short minutes order here.

HER HONOUR:   Thank you.  Yes, Ms Davidson.

MS DAVIDSON:   Your Honour, New South Wales respectfully adopts the submissions of the Commonwealth in relation to the efficient and effective use of this Court’s orders.  Just one further point; to the extent that my learned friend suggested that there were no questions of fact that would need to be determined in relation to this matter and that they were incontrovertible, New South Wales would submit that there are considerable unresolved questions of fact, the extent of which may be difficult to identify, given the defects in the pleading to which your Honour has already referred, but such that it would be difficult to agree a special case in any event.  Your Honour, unless I can assist further, New South Wales otherwise relies on the submissions of the Commonwealth.

HER HONOUR:   Thank you, Ms Davidson.  Mr King.

MR KING:   Thank you, your Honour.  Just briefly, we say that Link is distinguishable because the basal facts are not able to be gainsaid, and secondly we say ‑ ‑ ‑

HER HONOUR:   I am not so interested at this stage in the legal issue as in the questions that your opponents raise respecting the management of this litigation.  Ms Richardson points to the fact that the Commonwealth on this pleading would seek to strike out features of your claim.  Now, this Court is not going to become involved in that, Mr King.

MR KING:   No, nor do we ask the Court to become involved, your Honour.  Our proposal is ‑ ‑ ‑

HER HONOUR:   Well, Mr King, the notion that the Court would proceed to deal with a special case when no defences are on and when there is a lively controversy about the validity of a number of claims in a pleading that you accept is deficient seems to me to be a real hurdle for you to overcome.

MR KING:   I think the way we would put it respectfully, your Honour, is this; that the defendants are not correct in saying that we are inviting or asking the Court to get engaged in intensive case management.  All we are asking for is a short opportunity to present a more refined case and the

position then becomes one for them.  If we come back on the next occasion and there are still assertions that there should be strike outs and the like, then I would agree with your Honour that it would be appropriate to remit it.  But we submit it is premature at this stage on the first return date when we have a concrete proposal in respect of a special issue which three judges of this Court have previously found to be significant.

HER HONOUR:   Thank you, Mr King.

This proceeding was commenced on 22 December 2014 in the original jurisdiction of this Court, pursuant to sections 75(iii) and 76(i) and (ii) of the Constitution, by way of writ of summons and statement of claim. On 14 January 2015, the plaintiffs filed a summons for directions, supported by an outline of submissions. The plaintiffs contend that the matter should not be remitted to another court, save for the damages aspect of the claim, and seek orders to the effect that the plaintiffs serve a special case within 28 days in accordance with rule 27.08.

The defendants oppose the making of those orders.  The defendants submit that, notwithstanding the numerous deficiencies in the statement of claim that they assert, the appropriate course is to remit the matter to the Federal Court.  In the defendants’ submission, it is evident having regard to the form of the statement of claim that this litigation is likely to require intensive case management.

In that respect, the Commonwealth relies on the observations of Chief Justice Brennan in Ravenor Overseas v Readhead (1988) 72 ALJR 671 at 672[1] that the power of remitter contained in section 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.

[1] Ravenor Overseas v Readhead (1988) 72 ALJR 671 at 672.

In that respect, I note that in the plaintiffs’ outline of submissions it is stated that the question intended to be stated is a question of law concerning the validity of the offshore constitutional settlement between the Commonwealth and the State of New South Wales, the Commonwealth laws which underpin it and the State laws which depend upon it, each of which directly affects the livelihood and interests of the plaintiffs.

Orders 1 and 2, read with paragraph 6 of the statement of claim, are such that the plaintiffs seek declarations of invalidity of the entire contents of the two Commonwealth Acts and some 22 New South Wales Acts, together with the Abalone Management Plan made pursuant to the Fisheries Management Act 1994 (NSW). There are, as New South Wales notes, a number of potential questions of law that arise from the orders that are sought in the statement of claim going beyond the statement of what is suggested to be the crisp point of law articulated in paragraph 2 of the plaintiffs’ submissions.

The proper course is for attention to be given to the statement of claim to enable the defendants to seek further and better particulars of the claims that are made and to file defences.  The plaintiffs submit that that course is premature and that the preferable course is for them to be given an opportunity to present a more refined case by way of a special case.  In my view, the latter course is the one that is premature.

I am persuaded that this litigation is likely to require intensive case management, and for the reasons stated by Chief Justice Brennan in the Ravenor Case, the appropriate course is to make the orders that the defendants seek remitting the proceeding to the Federal Court.  For these reasons, I make the following orders:

1. The matter is to be remitted to the Federal Court of Australia, New South Wales District Registry, pursuant to section 44 of the Judiciary Act 1903.

2. The matter is to proceed in the Federal Court of Australia as if the steps already taken in the matter in this Court had been taken in the Federal Court of Australia.

3. The Deputy Registrar of this Court is to forward to the proper officer of the Federal Court of Australia photocopies of all documents filed in this Court.

4. The costs of this action to the date of remitter, including the costs of this order, be costs according to the scale applicable in proceedings in this Court and thereafter according to the scale applicable in the Federal Court and in the discretion of the Federal Court.

5. The costs of the proceedings in this Court be costs in the cause.

MS RICHARDSON:   As the Court pleases.

MR KING:   If the Court pleases.

AT 10.31 AM THE MATTER WAS CONCLUDED