Baker v CofA, Burk v CofA

[2002] HCATrans 545

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M199 of 2002

B e t w e e n -

RICHARD JAMES BAKER

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondents

Office of the Registry
  Melbourne  No M200 of 2002

B e t w e e n -

RODNEY ARTHUR BURK

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondents

Applications for expedition

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 16 DECEMBER 2002, AT 9.42 AM

Copyright in the High Court of Australia

____________________

MR G.F. LITTLE, SC:   May it please the Court, I appear with my learned friend, MRS E.J. TECHERA, for the applicant in both cases, your Honour. (instructed by Hollows Lawyers)

MR T.M. HOWE:   May it please your Honour, I appear for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Before I call on Mr Little, Mr Howe, can you tell me what the attitude of the Commonwealth is to the application for expedition?

MR HOWE:   Yes.  Your Honour, the application is not opposed.  There are, however, a couple of matters which we wish to raise, which we think may be relevant to the question of the expedition.

HIS HONOUR:   There are a couple I want to raise too, but the application is not opposed.  Now, you might also be able to tell me about the matter of Blunden.  Are you familiar with the matter of Blunden?

MR HOWE:   I am, your Honour.

HIS HONOUR:   As I understand it, there is an Attorney’s application for removal filed in that matter.

MR HOWE:   Yes, filed mid last week, I think, your Honour.

HIS HONOUR:   Yes.  I offered to bring it on today, but I was told that that was not convenient to counsel for the Commonwealth.

MR HOWE:   Yes.  Your Honour, I am not sure whether the ‑ ‑ ‑

HIS HONOUR:   Given that it is an application for removal as of right, that was a little surprising, but there we are.

MR HOWE:   Yes.  Your Honour, I think that the difficulty concerned whether or not the Court would be satisfied that in fact the removal was of right, having regard to the issue of whether the question of choice of law did, in fact, raise constitutional issues.

HIS HONOUR:   Yes.  Well, perhaps can I, having elicited from you the general attitude of the Commonwealth, turn to Mr Little, Mr Howe.

MR HOWE:   Thank you, your Honour.

HIS HONOUR:   Now, Mr Little, you want your removal application expedited.  Can I just understand something about where the actions are up to.  Pleadings have been filed in both actions, that is, the actions of Baker and of Burk, have they not?

MR LITTLE:   Yes, your Honour.

HIS HONOUR:   Now, the Commonwealth has put on a defence in each action?

MR LITTLE:   Yes, your Honour, and both actions have been heard, at least on preliminary points, before his Honour Justice Bongiorno, in the Supreme Court of Victoria.

HIS HONOUR:   Now, does the Commonwealth’s defence, in either or both of those actions, plead a Limitation Act?

MR LITTLE:   Yes it does; it pleads two alternative Australian Capital Territory Statutes of Limitation, at least, your Honour.

HIS HONOUR:   Well, you say “at least”.  Can I tell you where I am going so that you can understand the point of the questions.

MR LITTLE:   Yes, your Honour.

HIS HONOUR:   The application for removal is cast in terms of a question arising in the proceedings:

is the proper law to be applied in relation to a plea by the defendant that the proceedings are statute barred . . .

(a)  the law of the forum, that is Victoria;
(b)  some other and if so, which law, or
(c)  does no statute of limitations apply?. 

Framed in that way, it would seem to me a possible point of view is that somebody thinks the court is going to embark on some advisory opinion about what the applicable law is, whereas it would seem to me that if pleadings have been filed there is an issue joined between the parties in which one side alleges a particular statutory provision has application, I assume the opposite party says, “No it doesn’t”.  But that is the issue.  “Does that statutory”, or “Do identified statutes apply”, not “Please tell us what is the applicable law”.

MR LITTLE:   A reply has been filed in Burk, your Honour, pleading in response to the defence saying that no limitation law applies.

HIS HONOUR:   Yes.

MR LITTLE:   So that issue is joined in the reply, and that has not yet been disposed of by Justice Bongiorno.

HIS HONOUR:   What was the process that Justice Bongiorno was hearing, what application?

MR LITTLE:   He heard an application to determine the choice of law and then once he determined the “choice of law” point, an application for extension of time under the Limitation Act that he found to apply.  Before Justice Bongiorno in Burk the plaintiff contended the law of forum provided the limitation answer which was the Victorian Act.  His Honour decided that against the plaintiff and held that the Australian Capital Territory law applied and then went on and heard a further application under the Australian Capital Territory law to extend time and held that that application was defeated by prejudice.  So his Honour has made two decisions.  One is that Victorian law ‑ ‑ ‑

HIS HONOUR:   What question remains depending in that proceeding?

MR LITTLE:   An appeal from both those decisions has been brought to the Court of Appeal in Victoria saying that the first point was decided erroneously and, in fact, his Honour should have found no limitation law applying.  Secondly, that if a limitation law applied, it should not have been At the very last gasp it should have been Australian Capital Territory law.  It should have been, if any law, the law of the forum, namely Victorian law.

HIS HONOUR:   But is that reflected in pleadings?  This is no captious technical point.

MR LITTLE:   No, I understand your Honour’s concern that the issue was joined, so it is not a matter for advisory opinion.  Perhaps if I could take your Honour ‑ well, there is an amended defence filed in the matter of Burk.

HIS HONOUR:   What exhibit will I find that in?

MR LITTLE:   I do not think it is an exhibit.  It is just part of the pleadings.  It will be in the application book, your Honour.  I am told it is not before your Honour.  It is no wonder your Honour cannot find it.

HIS HONOUR:   You see, I am here to determine only the application for expedition.  It is really none of my business to start harassing the parties about matters that should emerge on the hearing of any application for removal, but better I do it now than that a Full Court is inconvenienced by not having it.  Can I just backtrack and make sure that I understand where we are up to.  As I would understand it, the application ultimately will be to remove that part of the cause pending in the Court of Appeal of Victoria, the cause there being the appeal to that court.

MR LITTLE:   Yes, your Honour.

HIS HONOUR:   Is it an appeal or an application for leave?

MR LITTLE:   It is an application for leave, your Honour.

HIS HONOUR:   So that part of the cause pending in the Court of Appeal being the application for leave to appeal against an interlocutory order of Justice Bongiorno.  Exactly what process was Justice Bongiorno hearing?

MR LITTLE:   He heard a preliminary application to determine the choice of law issue ‑ ‑ ‑

HIS HONOUR:   So trial of separate question.

MR LITTLE:   It is a trial of separate question under the Victorian Rules.

HIS HONOUR:   Right.

MR LITTLE:   We have appealed that process as well, your Honour.

HIS HONOUR:   Yes.

MR LITTLE:   Saying it should have been a matter for the jury to determine, not the “choice of law” question but they should have found the facts which would then entitle his Honour to decide the law to be applied, if any, as to the limitation.  Also, they should have found the facts to determine whether there was substantial prejudice, it being a jury trial.  So we challenge the proceedings before Justice Bongiorno right from the outset for treating it as a preliminary point for a start, but he having dealt with it as a preliminary point, he has made rulings on the choice of law which we challenge.

Perhaps if it is of any assistance to your Honour, the applications in Burk and Baker were thought necessary because the Commonwealth had done nothing in the matter of Blunden, which was before your Honour and the Chief Justice back in October 2001.  It seemed that nothing was going to be done by the Commonwealth in that case in spite of their protestations over many, many months that something was going to be done about that.  These cases were then heard and ACT law suddenly seemed to have become the Holy Grail for the determination of all these issues, and it was to provoke some action in Blunden that these applications were brought.  In addition, Mr Baker is in a risky state of health.  His is not a case where one can say he is suffering from a shortly terminal condition such as cancer or anything of that sort, but he is at risk if he gets an infection then he could die at any time before his case ‑ ‑ ‑

HIS HONOUR:   He has a respiratory disease.

MR LITTLE:   Of respiratory disease and cardiac failure resulting from that.  It was hoped that the bringing of these applications would provoke action in Blunden and then all three cases could be joined together, because the same issues arise, by and large, with only minor variations in all three cases which is why we were hopeful, as your Honour was, that Blunden would be before your Honour today so some orders could be made that were not contentious in that case and these others could be joined to it.

HIS HONOUR:   Again, the same sorts of questions about whether the issue truly arises and how it arises would fall for consideration in Blunden ‑ ‑ ‑

MR LITTLE:   I know that.  The Commonwealth have suggested that they, on certain terms, would consent to the Victorian Court of Appeal granting ‑ ‑ ‑

HIS HONOUR:   I am not interested in what is happening behind the scenes with the parties, Mr Little.  If the parties want to reach some agreement about it, that is for them.

MR LITTLE:   Our submission is that the issues have been raised and determined contrary to the applicants’ interests in both cases by Justice Bongiorno.

HIS HONOUR:   And you want to shell out then for separate treatment in this Court what you say are constitutional issues that arise, leaving for determination in this Court or in the Court of Appeal issues of prejudice: should there have been a trial, should there have been a trial of separate issue?  What is to happen with all of that?

MR LITTLE:   For the Court of Appeal, your Honour.  We are really only asking this Court to determine whether Justice Bongiorno was right in his selection of law to be applied to the case.

HIS HONOUR:   And what is the constitutional point that is said thus to be raised?

MR LITTLE:   Whether sections 79 and 80 of the Judiciary Act apply, whether the law of the forum applies to engraft on to the common law in Australia local statutes or whether the law, as stated in Pfeiffer v  Rogerson and Zang means that no local law has any application to a case such as the present.

HIS HONOUR:   Why are those constitutional issues as opposed to common law issues?  Difficult common law, perhaps difficult statutory construction issues, perhaps not, I do not know, but why are they constitutional issues?

MR LITTLE:   Well, in Pfeiffer v Rogerson this Court, as I understand it, held that the question of the law to be applied, in that action, raised constitutional issues.  Section 118, for instance, your Honour, the full faith and credit of laws ‑ ‑ ‑

HIS HONOUR:   I may be wrong, but my memory of Pfeiffer is that 118, although considered, was rejected.

MR LITTLE:   Well, not much weight was given to it, but I recall at, I think, paragraph 19, the Court said that because a master sitting in the ACT was faced with a question of determining the law to be applied to the litigation before him, he sat then as a Federal Court and it turned on from that, the inference, in our submission, is that that raised a constitutional issue.

HIS HONOUR:   I would have thought there was no doubt that federal jurisdiction was engaged in this matter, the Commonwealth was a party. Beyond that, it is not instantly evident to me how the Constitution is engaged, but, as I say, that is a fight for another day. Well what order do you say I should make, Mr Little?

MR LITTLE:   Well, I would ask your Honour to stand these applications over to be joined with the application in Blunden, which has now, we are told, at last been filed ‑ ‑ ‑

HIS HONOUR:   Yes.

MR LITTLE:    ‑ ‑ ‑on Thursday, I think, of this week in Canberra, so that they can join with Blunden in any direction hearings about the further disposal of these cases.

HIS HONOUR:   Yes.  Ordinarily speaking, a section 40 removal application by an Attorney would be heard and determined by a single Justice.  Whether the single Justice who hears the matter in Blunden would think it more appropriate to put them before a Full Court is, of course, a matter for him or her, but I understand the proposition that these two should, at least, be given the opportunity to march in step with Blunden.

Well now, Mr Howe, what do you say about my ordering that the applications in Burk and Baker be brought on before the Justice who shall first hear the matter in Blunden?

MR HOWE:   Yes, we think that would be an appropriate course.  Can we just foreshadow though that we do anticipate that there may be a difficulty with either the appropriateness or the availability of removal in these two cases of Burk and Baker and it touches upon matters which fell from your Honour.  Firstly, if what is sought to be removed is the “choice of law” issue that was before Justice Bongiorno, he has ruled upon that as a preliminary question and there are some High Court authorities that suggest doubt about the availability of removal in those circumstances; secondly ‑ ‑ ‑

HIS HONOUR:   Sorry, can you identify those authorities?

MR HOWE:   Yes, your Honour.  I have two cases.  If I could hand up two copies ‑ ‑ ‑

HIS HONOUR:   All I am asking is that you identify them for me.

MR HOWE:   Yes.  The first is Attorney-General for the State of New South Wales v Commonwealth Savings Bank of Australia & Another 160 CLR 315 and the second is a more recent case of O’Toole v Charles David Proprietary Limited 171 CLR 232.

HIS HONOUR:   Thank you.

MR HOWE:   It goes to the proposition that if an issue is resolved and determined at trial then that issue may not be available for removal if there is pending an appeal then so much of the appeal as deals with that issue might be appropriate for removal, but in this case, your Honour, that raises the second difficulty, namely, that the application before the Court of Appeal is one merely for leave to appeal, and it was our suggestion that there be a consent order allowing leave to appeal so that there was properly constituted in the Court of Appeal a proceeding dealing with the question of choice of law and then that part of the cause pending in the Court of Appeal could be removed.  That suggestion was not accepted and we just anticipate that there may be real difficulties occasioning the removal further down the track and we thought we should raise them at this stage, even though the only issue is one of expedition, and they can be dealt with when the matter comes next before the Court in the context of the Blunden application.

Could I also indicate another difficulty, your Honour, and that concerns the fact that both parties before your Honour are agreed that, for the purposes of the disposition of any removed issue concerning choice of law, the Court should have before it some additional evidence that was not before Justice Bongiorno.  So both parties are agreed upon that course and it seemed to us that the preferable way to proceed was for the Court of Appeal to make an order allowing that further evidence to be received, so that when the matter came before the High Court on removal there would not be any difficulty as to the factual matrix upon which the Court would be asked to adjudicate the matter. 

At the moment, your Honour, there is in the Blunden matter an agreed set of facts which do include this additional evidence, but in the matters of Burk and Baker there was affidavit material before the trial judge, which does not include the additional evidence.  Now it can be got before the High Court eventually, but the most abbreviated way, in our submission, would be for the Court of Appeal to relist the matter, grant leave to appeal, make an order receiving this additional evidence and then that part of the proceeding before the Court of Appeal be removed.

Your Honour, the final matter that I wish to mention concerns the suggestion that there was some dilatoriness in the matter of Blunden.  Can I just indicate, in that regard, that it did take a couple of months for the Full Federal Court’s orders to be perfected and then, your Honour, it took

another couple of months to secure the plaintiff’s agreement to the case stated.  As an alternative to removal, your Honour, the Commonwealth offered to every plaintiff in Melbourne Voyager litigation the proposition of agreeing that ACT law should apply and in Mr Blunden’s case it took five and a half months for him to respond to that and to reject that offer and it seemed that there was no proper basis to ask the court to adjudicate the “choice of law” issue, if the plaintiff himself was willing to agree to have ACT law apply.

So we do resist the suggestion that there was some palpable dilatoriness on the part of the Commonwealth, but save for those matter, we do not wish to raise anything else, your Honour.

HIS HONOUR:   Yes, thank you. 

Subject to any further order of a single Justice, there will be an order in each of the matters of Baker and Burk, that the application for expedition be heard at the same time as the application for removal made in the matter of Blunden v Commonwealth, matter C18 of 2002.  I will reserve costs and certify for counsel.

Before parting with both matters, I would add only this. I invite the attention of both sides in these matters to identifying with care what issue or issues joined between the parties on their pleadings is now said to arise under the Constitution or involves its interpretation. Consideration of that question will no doubt require close attention to the pleadings between the parties and to the particular state of individual proceedings. It would be a matter for considerable regret were applications to be prosecuted without sufficient attention being given to these procedural matters on some false assumption that the Court is likely to embark upon any roving commission directed to identifying what law might arguably be engaged in respect of particular issues that might possibly be thought to arise in this litigation.

The orders will be in the terms I have announced.

AT 10.07 AM THE MATTER WAS CONCLUDED