Bell v Culleton

[2017] HCATrans 205

[2017] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P44 of 2016

B e t w e e n -

IAN BRUCE BELL

Plaintiff

and

RODNEY NORMAN CULLETON

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON THURSDAY, 19 OCTOBER 2017, AT 11.46 AM

Copyright in the High Court of Australia

MR C.L. LENEHAN:   May it please the Court, I appear for the Attorney, intervening in that matter.  (instructed by Australian Government Solicitor)

MR B. LEVET:   I appear with MR G.C. CORR, for the respondent.  (instructed by Maitland Lawyers)

MR I.B. BELL appeared in person.

HER HONOUR:   Thank you.  I am just going to again identify what I think are the relevant documents and you can tell me where I have got it wrong.  So, I have got the writ of summons filed by Mr Bell of 7 September, together with the statement of claim of 7 September 2016.  I then have a summons for directions filed by Mr Bell of 14 November 2016.  The next matter on my understanding that is relevant is a summons filed by the Attorney‑General for the Commonwealth on 15 September 2017, supported by an affidavit of Mr Gatehouse of the same date and an outline of submissions of the same date.  Then I have an outline of submissions from Mr Culleton of 16 October of this year.  Am I missing anything?

MR LEVET:   No, your Honour, at this stage, no, but in the event that your Honour reserves on the issue of costs, we would seek to tender two documents in respect of that.

HER HONOUR:   Have you given those to Mr Bell?

MR LEVET:   One of the documents, yes, your Honour.

HER HONOUR:   Well, it is unfortunate if he has not got them, given that he is in Perth.

MR LEVET:   We can undertake to give it to him.

HER HONOUR:   Well, undertake is not good enough.  He needs to have it to be able to respond to it.

MR LEVET:   Yes, your Honour.

HER HONOUR:   All right, we will have to address that matter when it comes.  Mr Bell, have I missed any documents in that little list of documents that I read out?

MR BELL:   From myself there is also, your Honour, filed on 14 November an outline of submissions.

HER HONOUR:   I should have added that to it and I apologise.  I will add that to the list.  I think we will do the same process that we adopted before. 

You can respond to Mr Lenehan and deal also with your directions, and then we will see how the matter goes.

MR BELL:   Thank you, your Honour.

HER HONOUR:   Thank you.  Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  Just before I start, your Honour of course also has Mr Bell’s submissions of yesterday which I understand to apply to both matters.

HER HONOUR:   I do not know that I have them in relation to P44.  Do we have them?

MR LENEHAN:   I may be wrong, but we had understood those submissions to address, yes, both matters.  So, that is the document headed “Outline of Argument” which I think Mr Bell – it is the document that I was addressing your Honour on before.

HER HONOUR:   Yes, I understand.

MR LENEHAN:   Yes, your Honour.

HER HONOUR:   Have you got a spare copy of that just so I can add it to the P44 file, please?

MR LENEHAN:   I hopefully do.  We have one with highlighting on it.

HER HONOUR:   That is all right, I will use this one.  It is all right, thank you.

MR LENEHAN: Thank you, your Honour. So, your Honour, in this matter although Mr Bell says he seeks relief pursuant to section 46 of the Constitution, which your Honour is aware of, he is not in fact seeking any penalty under that provision, and nor could he, given that the Common Informers (Parliamentary Disqualifications) Act 1975 has been enacted, unless he is correct in saying that that enactment is invalid, and it seems to be that it is that question – the validity of what I will call the Common Informers Act, which is the essence of the claim that Mr Bell seeks to agitate in this proceeding.

Now, again there are a number of significant formal defects in his summons which we have identified in paragraph 12 of the written submissions but, once again, there are more fundamental difficulties with that claim which the Attorney says require that it be dismissed on a summary basis.  Just briefly to address that, the Common Informers Act ‑ ‑ ‑

HER HONOUR:   Address what?  The more fundamental ‑ ‑ ‑

MR LENEHAN:   Address the more fundamental ‑ ‑ ‑

HER HONOUR:   What you allege to be the more fundamental defects?

MR LENEHAN:   What I say are the more fundamental defects, your Honour.

HER HONOUR:   Yes.

MR LENEHAN: The Common Informers Act, as it records in its long title, is an enactment made under section 46 of the Constitution and that provision – I am not sure if your Honour has it to hand, but it commences ‑ ‑ ‑

HER HONOUR: Has what – section 46?

MR LENEHAN: Section 46.

GORDON J: I have section 46:

Until the Parliament otherwise provides –

MR LENEHAN:   Correct.

GORDON J:   Yes.

MR LENEHAN:   So, the Attorney relies on those words which convey, the Attorney says, that the Commonwealth is free to legislate from time to time as may appear appropriate, and we derive that from this Court’s decision in Cunningham v The Commonwealth (2016) 90 ALJR 1138 at paragraph 6, and we have cited that authority in the written submissions. Your Honour would also be aware – and this is another point we make in the written submissions, that that phrase appears elsewhere in the Constitution dealing ‑ ‑ ‑

HER HONOUR:   In Chapter I?

MR LENEHAN:   Yes.

HER HONOUR:   Yes.

MR LENEHAN:   And the Court has consistently emphasised that those words involve what has been referred to as a dynamic rather than a static ‑ ‑ ‑

HER HONOUR:   Justice Gummow.

MR LENEHAN:   Yes.

HER HONOUR:   Yes.

MR LENEHAN: In the conception of those institutions. So, putting that together, it is simply not the case, the Attorney says, that there is some requirement to maintain the penalty imposed in a common informers action at some particular level which, as I understand it, Mr Bell says needs to be commensurate with what applied under section 46 as at 1901 or to otherwise maintain the original effects and consequences of section 46. If that is right, it follows that there is no tenable basis for that claim and I think this time we do have the rule right, it should be dismissed under rule 27.09.04. Alternatively, we would seek, to the extent that I am right in saying that this is really a question of validity and not a common informers action, we would seek to have the matter remitted to the Federal Court again.

HER HONOUR:   You do not seek costs?

MR LENEHAN:   No.

HER HONOUR:   Mr Levet.  Could I ask you do a big favour for me?  Could you walk to the microphone so they can record you?

MR LEVET:   Sorry, your Honour.

HER HONOUR:   And then Mr Bell can hear you as well.

MR LEVET:   Yes, your Honour.  We adopt the position of the intervener in respect to this matter.  We do seek costs.

HER HONOUR:   Explain to me why you seek costs, please.

MR LEVET:   We seek costs on the basis that the relief is sought against my client in the event that it is summarily dismissed, it is effectively summarily dismissed under the rules which give effect to the general steel industries dicta of an unreasonable ‑ or no reasonable prospects of success.  That having been said, we have been put to costs and in addition to that if I might tender to your Honour a document which Mr Bell does have.

HER HONOUR:   What is that document?

MR LEVET:   It is, in effect, a Calderbank, your Honour, indicating that we would not seek costs in certain circumstances.

HER HONOUR:   I will not take that into account for the moment; that can be put to one side.  If it becomes necessary, then I will deal with the matter at an appropriate point.

MR LEVET:   Thank you, your Honour.

HER HONOUR:   Mr Bell.

MR BELL:   Yes, your Honour.  On what the representative for Mr Culleton just said, I just want to add something and it is obviously patent and that is that the Senate referral was on identical grounds to my application, so to say it was incompetent simply because it might be dismissed now is, I think, quite erroneous and I would object to that being – that view being correct.

I would mention also that placita 46, 47 and 48 of the Constitution have one thing in common which is “Until the Parliament otherwise provides”. But, in 48, it is confined very clearly to the matter of a salary and my submission is that irrespective of what might have gone before, the Federal Court cannot make the same determination on these issues that this Court can and nor should it because this is important – important matters. If there is a proper narrow – I would say it would be proper to take a narrow interpretation of “Until the Parliament otherwise provides”, that is not carte blanche. That is not carte blanche. It is limited, in my submission. Now, I want to have ‑ ‑ ‑

HER HONOUR:   So, just so I am clear – yes, just so I am clear, I want to make sure I am clear about what your position is, is it the matters that the – in a sense, the extent to which you say the ability for “Parliament to otherwise provide” is limited by the matters that you set out in paragraphs 13, 14 and 15 of your statement of claim?

MR BELL:   I think that is correct, your Honour, yes.

HER HONOUR:   I understand that argument.

MR BELL:   Okay.  So, it is simply, in my submission, these matters need to go forward but with proper authority and representation applied to them and summary dismissal is completely, in my submission, not proper.  There are matters of gravamen here and that was acknowledged by the Chief Justice last November. 

HER HONOUR:   Thank you, Mr Bell.  Anything in reply?

MR LENEHAN:   Nothing in reply, your Honour.

HER HONOUR:   Thank you.  Again, I will reserve the decision in relation to this matter and consider it and publish reasons in relation to P44?  You will be advised about the delivery of those judgments.  It will not be necessary for you to attend but you will be given ample notification of them.  I thank you for your assistance.  Adjourn the Court.

AT 11.57 AM THE MATTER WAS ADJOURNED