Bloomfield v Hepworth

[2002] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Registry  No C13 of 2001

B e t w e e n -

DARREN BLOOMFIELD

Plaintiff

and

DETECTIVE SUPERINTENDENT BRIAN HEPWORTH

Defendant

Application to remit

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 2 MAY 2002, AT 9.31 AM

Copyright in the High Court of Australia

MS R. GILLESPIE:   If your Honour pleases, I appear on behalf of the applicant.  (instructed by the plaintiff)

MR A.C. HUGHES:   If your Honour pleases, on behalf of the defendant to the writ and the applicant in the summons.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Now, it is your application?

MR HUGHES:  It is, your Honour.

HER HONOUR:   Yes.

MR HUGHES:   Your Honour, the application is made to remit pursuant to section 44 of the Judiciary Act.

HER HONOUR:   Is that opposed?

MR HUGHES:   Yes, it is, as I understand it. 

MS GILLESPIE:   Yes.

HER HONOUR:   Very well.

MR HUGHES:   Your Honour, the basis of the application is, to use the words of Chief Justice Gibbs in State Bank of New South Wales v The Commonwealth Savings Bank of Australia (1984) 154 CLR 579, the power of remittal is:

to relieve this Court of the necessity to hear cases that might more conveniently be heard elsewhere, particularly where the litigation involves the trial of issues of fact.

Now, your Honour, the power of remittal I refer to is that under section 44 of the Judiciary Act.  That section, your Honour, provides this Court with a power to remit the matter to any other court which has jurisdiction.  That is under subsection (1).  If it involves a matter arising directly under a treaty, it may be remitted to a State or federal court, and if the matter involves a Commonwealth or a person suing or being sued on behalf of the Commonwealth, if that is a party, it may be remitted to the Federal Court.  It is my submission, your Honour, that, in fact ‑ ‑ ‑

HER HONOUR:   What facts do you say arise?  I suppose that really is the critical issue, is it?

MR HUGHES:   Yes.  In essence, it is my submission, based on the writ of summons filed in this matter, that the case is about a number of instances where the defendant, acting in his duties as a member of the Australian Federal Police, has been engaged in putting out a number of alleged ceremonial fires, effectively in the parliamentary triangle area.  Your Honour, my reading of the writ, and particularly at pages X and XII, involve the putting out of fires in the areas known as Reconciliation Place and Commonwealth Place where construction work is going on between the old Parliament House on the foreshores of Lake Burley Griffin looking towards the War Memorial.

HER HONOUR:   No pleading has yet been ‑ ‑ ‑

MR HUGHES:   A writ of summons ‑ ‑ ‑

HER HONOUR:   The defendant has not pleaded?

MR HUGHES:   No, not at this stage.  At this stage, your Honour, the defendant is seeking to have the matter remitted.  It would be the defendant’s early application that the writ be pared down to a considerable extent to put it in terms that are able to be properly defended and pleaded to.  At the moment it reads more like a novel rather than a pleading. 

HER HONOUR:   What relief is sought?

MR HUGHES:   Wide‑ranging relief on the very last page, your Honour, at page XVIII, relief which appears to be directed to the Commonwealth generally as well as relief directed towards the defendant, and you will see there orders sought in relation to Aboriginal sovereignty, recognition of Aboriginal spirituality, an order sought for rent and fees since invasion in 1788 and other damages and compensation with a historical background.

HER HONOUR:   Yes.

MR HUGHES:   One of the essential allegations, it appears, is an event on 11 July 2001, where – putting it in common parlance – the defendant was driving a motor vehicle and came into contact with the applicant or with the plaintiff, and there appears to be some allegation of minor personal injury.  Now, that would appear to be a fairly standard tortious action.

HER HONOUR:   Yes, thank you.  Yes, Ms Gillespie.

MS GILLESPIE:   Yes.  May I have a copy of the statement in relation to the cases you have just cited, please?  I apologise, your Honour, I just drove from Port Kembla this morning, and I seek leave to hand up two documents which are, I submit, highly pertinent to the case, the first of which, in fact, in a nutshell, explains what the case is.  Now, to take up my learned friend’s comment ‑ ‑ ‑

HER HONOUR:   Have you copies for Mr Hughes?

MS GILLESPIE:   Mr Hughes, you have copies?

MR HUGHES:   Yes, I have.  I have briefly had an opportunity to look at those this morning, your Honour.

HER HONOUR:   All of that may be very well.  That may be the core of the case but I do not know how you can – the only person you have sued is Detective Superintendent Hepworth.

MS GILLESPIE:   Yes.  Well, perhaps if I can explain.  Now, firstly, may I just take up the point made by my learned friend about the way the original writ was set up.  I certainly would seek to pare down the writ in a more digestible form that is more clearly put, vis-à-vis, the legal issues that are recognised within this Court and subordinate courts, and immediately I seek to delete the phrase on page XIII, which is 13, on the bottom line where a penalty or prospective penalty is referred to where it says, “where he would be speared to death.”  That, we submit, should be deleted because it is not a question of the nature of the punishment and certainly it is not appropriate for that to be prejudged in such a way.    So, with your consent, I would like to delete that immediately.

HER HONOUR:   Well, really, the first question is – you do not have a motion yet in that regard, do you?

MS GILLESPIE:   No.

HER HONOUR:   Mr Hughes wants to have questions about the statement of claim resolved in the Federal Court in due course.

MS GILLESPIE:   Yes.

HER HONOUR:   What is your objection to that course?

MS GILLESPIE:   Objection is on the grounds that the sovereignty issues cannot be adjudicated by the Federal Court.  Where it says ‑ ‑ ‑

HER HONOUR:   Why not?

MS GILLESPIE:   Because it is a question of ‑ ‑ ‑

HER HONOUR:   I have great difficulty with the way in which this statement of claim is prepared.  I am not too sure the parties are adequately constituted even to raise that issue.

MS GILLESPIE:   Perhaps then as a preliminary, it may be necessary to amend the writ, which I would seek leave to do.

HER HONOUR:   But are there not factual issues necessarily involved?  Even in the Mabo Case there were factual issues necessarily involved, and that matter was remitted to a Federal Court judge for the determination of the facts, if you remember rightly.

MS GILLESPIE:   Actually, that is a useful precedent because, as we envisage this particular matter, the factual issues are actually at the cusp of the conflict of laws – that is Aboriginal laws and Commonwealth laws – and they flow from the question of disputed sovereignty.

HER HONOUR:   Now, Ms Gillespie, you are suing Detective Superintendent Brian Hepworth for something.  What are you suing him for?  You are not suing the Commonwealth of Australia as such, are you?

MS GILLESPIE:   That is correct, yes.  The defendant in this case is Inspector Hepworth.  What I submit is that the issues that are involved – there are issues of fact and there are issues of law.

HER HONOUR:   Exactly.  Normally this Court does not determine issues of fact for itself, partly because it simply does not have the personnel or the time or the means to do it.  That is the problem.  There are issues of fact raised.

MS GILLESPIE:   Yes.  Can I suggest a possible alternative course, that there are issues of law which can only be resolved, in my submission, by the High Court.  As your Honour has rightly said, there are issues of fact which are not the business of the High Court.  It is possible sometimes to remit certain issues to a lower court while retaining the issue of Aboriginal sovereignty and the various ‑ ‑ ‑

HER HONOUR:   I might be persuaded to do that if I were convinced that the only defendant you needed to raise that issue was Detective Superintendent Brian Hepworth.

MS GILLESPIE:   Yes, I understand fully.  In fact, it should be amended to include not only Mr Hepworth as an individual but what he is representing, which I refer to in this four‑page statement.  In my submission, the whole incident arose out of a conflict of laws between a young Aboriginal warrior who was charged to act according to one set of laws and the Hepworth ‑ ‑ ‑

HER HONOUR:   The very first thing you would have to do is prove the Aboriginal law, and that is a question of fact.

MS GILLESPIE:   Yes.

HER HONOUR:   For example, if you look at page VI, there are questions of fact there that would need to be proved.

MS GILLESPIE:   Yes, correct.  Then the questions of law would arise from that.

HER HONOUR:   Only when they are proved, is that not right?

MS GILLESPIE:   That is correct, your Honour.  What we have sought to avoid is a situation between it – where it is all remitted to the Federal Court and the Federal Court is not in a position to identify the justice or the rights in relation to competing sovereignty claims such as the High Court only can adjudicate.

HER HONOUR:   There is authority that even we cannot adjudicate sovereignty but, if you are talking about recognition of laws, that might be a quite different proposition.  One would need to know, one would have thought, the precise content of that law as a matter of fact before you could even begin to talk about recognition.  You see, although you have expressed it in terms of sovereignty, what you put to me today is really about recognition.

MS GILLESPIE:   Yes, you are correct.  So it is necessary first for evidence to be tendered in a lower court in relation to the precise content of the law.  However, just on the question of sovereignty, there are situations where sovereignty is treated as divisible and apportioned.  In fact, this is done in the Constitution of the Commonwealth which apportions sovereignty rights between the Federal Government, the Commonwealth and the States.  Also, other jurisdictions have dealt with the question of competing sovereignty claims between indigenous nations and de facto sovereign power.  So if I may just mention to your Honour now that that issue is not closed and naturally we would seek to raise that to as high a level as necessary to get that adjudicated.  What your Honour says is that because there are issues of fact to be tried, and you point out quite correctly the precise content of the law has not been stated yet ‑ ‑ ‑

HER HONOUR:   No, it has to be proved.  You can state it all you like but you have to prove it, just the same as you have to prove French law.  If you

were coming here to say that you were entitled to something against Mr Hughes’ client under French law, you would have to prove it, otherwise we would assume it was the same.

MS GILLESPIE:   Yes, exactly:  state it precisely and also prove it.  Could your Honour give me a moment so I can consult with Mr Darren Bloomfield?

HER HONOUR:   Yes, certainly.  Do you wish me to adjourn formally?

MS GILLESPIE:   For five minutes, if your Honour pleases.

HER HONOUR:   Yes, certainly.

MS GILLESPIE:   Thank you.

AT 9.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.52 AM:

HER HONOUR:   Yes, Ms Gillespie.

MS GILLESPIE:   I have conferred with Mr Bloomfield and we agree to have it remitted to the Federal Court and we also will be seeking to make substantial amendments to the statement of claim and also in relation to parties as well, but I have already mentioned that to my learned friend.

HER HONOUR:   Yes.  Thank you very much.  There will be an order for remitter to the Federal Court.  It will be in the standard terms which are:

1.   That the further proceedings in the action be remitted to the Federal Court of Australia;

2.   The action proceed in that court as if the steps already taken in the action in this Court had been taken in that court;

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

4.   The costs of the summons to be costs in the cause;

5.   That the costs of the action to the date of the remission, including the costs of this order, are to be according to the scale appropriate to proceedings in this Court and thereafter according to the scale appropriate to the Federal Court and in the discretion of the Federal Court;

6.   I will certify that this was a matter proper for the attendance of counsel in chambers.

Are those orders satisfactory or do you require any variation?

MR HUGHES:   No, that is all, your Honour, thank you.

MS GILLESPIE:   Are you able to include something in relation to leave to amend or will that be business I need to deal with in the Federal Court?

HER HONOUR:   I do not need to do that.  I do not think you will have any difficulty getting leave to ‑ ‑ ‑

MR HUGHES:   There will be no objection from the ‑ ‑ ‑

HER HONOUR:   There will be no objection to a leave to amend.

MS GILLESPIE:   Thank you, your Honour.

HER HONOUR:   Yes, very well.  Thank you very much.  The Court will now adjourn.

AT 9.54 AM THE MATTER WAS CONCLUDED