Bird v NSW Council for Civil Liberties Inc

[1994] HCATrans 307

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S47 of 1994

B e t w e e n -

GEOFFREY JAMES BIRD

Applicant

and

NSW COUNCIL FOR CIVIL

LIBERTIES INC

Respondent

Application for an injunction

and for special leave to appeal

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 MAY 1994, AT 12.07 PM

Copyright in the High Court of Australia

Bird 1 6/5/94

MR G.J. BIRD:	Your Honour, I am the applicant.
MR N.A. NICHOLLS:	May it please Your Honour, I appear for

the respondent to the summons. (instructed by

Bortier Perry & Purcell)

HIS HONOUR:  You oppose this application, do you,

Mr Nicholls?

MR NICHOLLS: Yes, Your Honour.

HIS HONOUR:  Now, Mr Bird, what do you have to say in

support of this application? First of all, you

have a summons on, do you?

MR BIRD: Yes, Your Honour.

HIS HONOUR: Summons dated?

MR BIRD: Dated 15 April, Your Honour.

HIS HONOUR:  And it is supported by an affidavit, is it?

What is the date of the affidavit?

MR BIRD:  15 April 1994.

HIS HONOUR:  Thank you. What are you asking for, Mr Bird?

MR BIRD:  Your Honour, I am asking for special leave to be

granted by a Justice in chambers which is possible

under the provisions that I have mentioned in the

affidavit and I am asking for the issue of a writ

directed to the Court of Appeal, but I have also

prepared a notice of appeal and I would be prepared

to appeal by way of notice of appeal rather than

the writ if the Court insists on that. I am also asking for injunctions restraining the respondent

from disposing of various documents that I have a

right of access to and otherwise preventing the

winding up of the respondent until after the appeal court below from considering my application for has been determined.

HIS HONOUR:  Have you filed a special leave application?

MR BIRD: Yes, Your Honour.

HIS HONOUR:  What is the date of the special leave

application?

MR BIRD:  24 March 1994.

HIS HONOUR: That is an application for special leave to

appeal from a decision of the Court of Appeal

refusing leave to appeal, is it?

Bird 2 6/5/94

MR BIRD:	Yes, Your Honour.
HIS HONOUR:	Why should there be any departure from the

requirements of Order 69A?

MR BIRD:  Your Honour, usually with applications for special

leave it is decided on a competitive basis and it
is on the basis of whether the issues raised are of

public importance. But in this case, since the

proceedings that are being appealed are under the

Corporations Law, I would be able to bring them in

the Federal Court. If the proceedings were stayed
there for an improper purpose, as happened in the

supreme court, I would be able to apply for a writ

of mandamus in the original jurisdiction.	So the
court would have to hear that, being in the

original jurisdiction, so given that the High Court

will have to consider the question of whether the

proceedings were commenced for an improper purpose

one way or the other, it might as well be

considered in the appellate jurisdiction rather

than in the original jurisdiction.

Your Honour, there is a further - - -

HIS HONOUR:  But why should the matter be considered by a

single Judge rather than the usual Bench of three,

or at least two or more Justices under Order 69A?

MR BIRD:  Where it is a question of whether the - where

the special leave is sought on the basis of public

interest, that is a thing where the Judges of the

Court might have differing views and so they might

want to consult each other and take into account
the views of three Judges. But where it is a sort

of original jurisdiction type matter, then that is

fairly clear cut. It is a question of convenience

to the Court whether the Court would rather hear it

in the original jurisdiction or whether they would

rather - the thing is if special leave is granted

in the appellate jurisdiction, then the respondent

might well be willing to have Your Honour make an

order by consent for the Court of Appeal to

grant -

HIS HONOUR:  But I rather gather the respondent is opposing

this.

MR BIRD:  As far as I know they are only opposing it up

until the point where special leave is granted.

Once special leave was granted, they would

probably, given that it is going to be heard in one

court or another, they would probably just as soon
have it heard in the Court of Appeal as in the High

Court. That way it would save Your Honours the inconvenience of having to hear it and it could be

heard by the Court of Appeal instead, where it

Bird 6/5/94

should have been heard in the first place.	So I do
not know whether they would agree to that.	I
imagine they would, but for the moment - - -

HIS HONOUR:  Would you agree to a course like that,

Mr Nicholls?

MR NICHOLLS:	No, Your Honour, is the short answer.
HIS HONOUR:	I think you have to proceed on the footing that

you are going to be resisted at significant stages

of the process you outline, Mr Bird.

MR BIRD:  Your Honour, even if they do insist on it being

heard in the High Court, well, if special leave was

not granted it would be heard in the High Court

anyway because then it would go through the Federal

Court and -

HIS HONOUR:  But why would it be heard in the High Court

anyhow?

MR BIRD:  The proceedings in the court below were to wind up

the respondent on the basis that they had broken

their rules persistently and the proceedings were

stayed for an improper purpose, supposedly because
they were brought for an improper purpose. That is

a thing that comes within the supervisory

jurisdiction of the court as opposed to the

appellate jurisdiction - - -

HIS HONOUR: Supervisory jurisdiction of what court?

MR BIRD: Of any court - well, the Court of Appeal. If it

is brought in the supreme court, then of the Court

of Appeal. Because the court of first instance has

basically refused to consider the application -

they have said it is for an improper purpose so we will not even consider it - they have got a public duty to consider, when someone comes along and

files a proceedings, they have a public duty to
consider it, Your Honour.	So they can be commanded

to perform that public duty by an order - - -

HIS HONOUR:  Are you suggesting that either this Court or

the Federal Court would have jurisdiction to grant

a mandamus? Is that what you are saying?

MR BIRD: No, Your Honour. If I brought the proceedings in

the Federal Court - - -

HIS HONOUR:	What proceedings?
MR BIRD: The same proceedings, Your Honour.	If I brought

the same proceedings in the Federal Court, then

this Court would have power to grant - - -

Bird 4 6/5/94

HIS HONOUR:  You mean if you brought in the Federal Court

proceedings the same as the proceedings you have

brought in the supreme court?

MR BIRD: That is right, Your Honour.

HIS HONOUR:  But if you did that you would be met with a

plea of res judicata.

MR BIRD: Your Honour, as I understand it, with the

application for winding up, this can be brought -

for example, if in 1992 an application was brought,

that might be found invalid in 1992, but then

circumstances might change and in 1994 the company

might be doing something that it was not doing in

1992, so it might - - -

HIS HONOUR:  Let us say you have got a new cause of action.

You are going to commence it in the Federal Court, are you?

MR BIRD: Yes, Your Honour.

HIS HONOUR:  Now, has the Federal Court got jurisdiction to entertain the cause of action?

MR BIRD: Yes, Your Honour, because under the Corporations

Law it can be commenced either in the Federal Court

or in the - - -

HIS HONOUR:  All right. Now you have commenced a

proceedings in the Federal Court. The Federal

Court gives a decision and ultimately it would be a question whether this Court would grant special leave from the Federal Court decision.

MR BIRD:  Your Honour, if it is an application for a writ of

mandamus, that is in the original jurisdiction of

the High Court.

HIS HONOUR:  A writ of mandamus issued by what court?

MR BIRD:	By the High Court.
HIS HONOUR:	What, to the Federal Court?
MR BIRD:	To the Federal Court to command the Federal Court

to hear the application on the grounds that it was

brought for a legitimate purpose; it was not

brought for improper purpose.

HIS HONOUR:  But we can only grant a writ of mandamus to a

lower court that is not a superior court where

there has been a failure by that court to do its

duty. A failure to perform a public duty. There

is not the slightest indication that the Federal

Bird	6/5/94 Court is going to fail to perform any duty that it
is required to perform.
MR BIRD:	The only sense in that it might not is that

because the supreme court has been of the view that

the proceedings were commenced for an improper

purpose, the Federal Court might automatically take

this view on board and feel obliged to adopt the

same view.

HIS HONOUR:  But that is all speculation. I mean apart from

writ to the Federal Court as a superior court?

any question of res judicata, that is speculation. prerogative

MR BIRD:  Your Honour, this Court has always been granting

prerogative writs to the Federal Court as a

superior court and as for the Court of Appeal -

HIS HONOUR:  But in any event, that is beside the point,

because at the moment, Mr Bird, it is entirely

academic. There are not any proceedings in the advance what may happen in the Federal Court.

MR BIRD:  That is entirely open to Your Honour to take that

point of view, but it will just mean that - the way

I am suggesting, that it go back to the Court of

Appeal, would save this Court time because then the

Court of Appeal might well, having heard the

matter, decide that it was commenced for a proper

purpose and so there would be no problem.

HIS HONOUR:  Yes. What else have you got to say in support

of the application?

MR BIRD:  As I have said, I have got a notice of appeal here

that could be used as an alternative to a writ of

mandamus but, as I understand it, the Court of
Appeal is a court of limited jurisdiction, so a

writ of mandamus can be issued to it. But - - -

HIS HONOUR:	I do not think the Court of Appeal is a court of limited jurisdiction, it is a superior court, as
part of the supreme court. Can you cite any case to me in which this Court has granted prerogative
relief to a supreme court?
MR BIRD:	This Court has in Attorney-General of Queensland v

Wilkinson, (1958) 100 CLR 422, granted a

prerogative writ against the Industrial Court of

Queensland and in that - - -

HIS HONOUR: That is the Industrial Court of Queensland

which is an inferior court.

Bird 6 6/5/94

MR BIRD:  No, Your Honour, it is a superior court of limited

jurisdiction.

HIS HONOUR: That is the point. It is a court of limited

jurisdiction. It is not a court of general

jurisdiction.

MR BIRD:  Your Honour, the reason it was held to be a court

of limited jurisdiction was that because it cannot

hear certain applications - Justice Fullagar gave

the example of divorce proceedings, it cannot hear

divorce proceedings - Your Honour, the same could

be said of the Court of Appeal; it cannot hear

federal proceedings such as divorce proceedings,

certain industrial proceedings and so on. So for

that reason, I would submit it would be a court of

limited jurisdiction. But, as I have said, I have

got a notice of appeal, so that could be used in

place of a writ.

As I said, the matter will eventually come to

commonly though, the Court issues writs to the industrial relations courts where it is disputed whether, say, the Australian Industrial Relations Commission has jurisdiction to hear a matter. So it is well established that this Court can issue

this Court. This Court has issued writs to the

writs to the Federal Court to require it to hear

matters, Your Honour.

HIS HONOUR:  Yes. What do you want to say, Mr Nicholls?

MR NICHOLLS:  Your Honour, with respect to Mr Bird, the

current application before the Court is

fundamentally flawed and misconceived. If I could

take Your Honour to the summons itself.

Paragraph 1 appears to be an application for

special leave to appeal in itself. There is an

application for special leave pending within the Court's process and is being dealt with in the	ordinary course under Order 69 rule 13 of this	Court's rules which relates to applications for
special leave filed by unrepresented applicants.

So far as paragraph 2 of the summons is

concerned, Your Honour, there is absolutely no

federal element whatsoever in these proceedings

such as would attract the jurisdiction of this

Court. What the supreme court has done is to

exercise its powers under section 101 of the

Supreme Court Act refusing leave to appeal.	The
supreme court, as Your Honour has pointed out,

pursuant to sections 22 and 23 of the Supreme Court

Act, is a superior court of record having all

jurisdiction necessary for the proper

administration of justice in the State of New South

Bird 7 6/5/94

Wales. There is no jurisdiction in this Court,

Your Honour, pursuant to section 75(v) of the

Constitution to issue any prerogative - - -

HIS HONOUR:  Yes, that is right. I need not trouble you

further, Mr Nicholls.	Do you want to say anything
in reply, Mr Bird?

MR BIRD:  Yes, Your Honour. The basis on which I am seeking

to have a writ issued is not under section 75(v)

because obviously the Court of Appeal is not a

federal tribunal. The basis on which I am seeking

it is the Court's appellate jurisdiction. Under

whatever provision of the Constitution, this Court

has a power to hear appeals from the Court of

Appeal. If I had - of course I would not but, if I

had been, then I would not need to seek special

leave. That is why I am seeking special leave

because it is in the Court's appellate

jurisdiction, Your Honour.

HIS HONOUR:  This is an application brought by summons

asking that as a single Justice, I should grant the

applicant's application for special leave to appeal

which was filed on 24 March 1994. In that

application the applicant seeks special leave to

appeal from a unanimous decision given by the New appeal from a decision given at first instance.

The applicant submits that a departure from

the procedure prescribed by Order 69A of the High

Court Rules is justified by reason of the

circumstance, so he says, that if he fails in the

current proceedings he will commence proceedings in

the Federal Court, litigating the same or a similar

issue and that eventually the matter will come to

this Court. In those circumstances he suggests

that special leave ought to be granted by a single avoid deferring determination of an issue that will

inevitably come to this Court.

The answer to that submission is that the applicant is unable to make out a case that the

same question will come to this Court by other

means. Even if the applicant does commence

proceedings in the future to litigate the same or a

similar question, and even assuming he can do that,

ultimately it would be a matter for this Court to

determine whether it would grant special leave to

appeal from a relevant decision of the Federal

Court.

In the circumstances, I see no justification

for departing from the ordinary procedure which is

prescribed by Order 69A of the rules of this Court.

Bird 6/5/94

Compliance with that procedure would result in the

applicant's application for special leave to appeal

and a written case being filed for the

consideration of the Court.

The applicant also seeks the issue of a writ

of mandamus evidently directed to the Court of

Appeal requiring the Court of Appeal to proceed to

the grant of leave to appeal, in other words
arriving at a conclusion directly opposite to the

conclusion which that court reached in the decision

which is the subject of the applicant's application

for special leave to appeal. I can see no basis

for the submission that the Court of Appeal

actually or constructively declined to exercise its

jurisdiction and, in order to succeed in obtaining

mandamus, the applicant would have to show an

actual or constructive failure to exercise

jurisdiction. There are of course other problems

in the suggested issue of a mandamus to the Court

of Appeal. It is not a court that falls within the

description contained in section 75(v) of the

Constitution.

Finally, the applicant seeks the grant of an

injunction restraining certain actions on the part

of the respondent pending the resolution of

proceedings in this Court. At this stage no

sufficient case has been made out for the grant of

such an injunction. In the result, I dismiss the

summons.

MR NICHOLLS: If Your Honour please.

HIS HONOUR:	Do you resist an order for costs, Mr Bird?
MR BIRD:	Your Honour - - -
HIS HONOUR:	In the ordinary course, the general rule is

that costs follow the event. I must say, subject

to anything that you can say, I cannot see any

reason why I should not order costs.

MR BIRD:  I suppose in the event of costs being ordered, I

would, when I apply to the Federal Court, seek an

injunction to stop the respondent enforcing the

order, but I do not suppose Your Honour would need

to take that into account. But that is all I would

have to say. This has not considered the case

against the respondent on its merits at all; this

is just a procedural type - - -

HIS HONOUR:  But that is one of the problems with bringing

applications. Applications that do not seek to

canvass the merits none the less incur costs, and

the successful party as a general rule is entitled

to those costs, even though it does not involve any

Bird 9 6/5/94

decision on a substantial question of merits. The

result is that the summons is dismissed with costs.

Court will now adjourn sine die.

AT 12.31 PM THE MATTER WAS ADJOURNED SINE DIE

Bird 10 6/5/94