Blunden v The Commonwealth, Ex parte Attorney-General (Cth), Baker v The Commonwealth, Burk v The Commonweal

[2003] HCATrans 600

IN THE HIGH COURT OF AUSTRALIA

Registry  No C18 of 2002

B e t w e e n -

BARRY THOMAS BLUNDEN

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

Respondent

Ex parte –

THE ATTORNEY‑GENERAL OF THE COMMONWEALTH

Office of the Registry
  Melbourne       No M199 of 2002

B e t w e e n -

RICHARD JAMES BAKER

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

Respondent

Office of the Registry
  Melbourne  No M200 of 2002

B e t w e e n -

RODNEY ARTHUR BURK

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

Respondent

Applications for removal

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 MARCH 2003, AT 11.02 AM

Copyright in the High Court of Australia

MR G.F. LITTLE, SC:   May it please your Honour, I appear with my learned friend, MS E.J. TECHERA, for the, in the lower courts, plaintiffs Blunden, Burk and Baker.  Blunden is the respondent to the Attorney‑General’s application in the first case and Messrs Burk and Baker are applicants in the two following cases, your Honour.  (instructed by Pamela Coward & Associates and Hollows Lawyers)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth:   If your Honour pleases, I appear with my learned friends, MR P.J. HANKS, QC and MR D.J.C. MOSSOP, in the first matter only, that is Blunden, for the respondent Commonwealth and for the applicant Attorney-General.  (instructed by Australian Government Solicitor)

MR P.J. HANKS, QC:   Your Honour, I appear with MR D.J.C. MOSSOP in the second and third matters for the respondent, the Commonwealth of Australia, that is the matters of Burk and Baker.  (instructed by Australian Government Solicitor)

HIS HONOUR:   I will deal with your application first, Mr Solicitor.

MR BENNETT:   If the Court pleases.  Your Honour, I move on notice of motion dated 10 December and on the affidavit of Andrew Paul Berger sworn 12 December.

HIS HONOUR:   Yes.

MR BENNETT:   Your Honour, it is an application in the alternative under section 40(1) and (2).  The short issue is how one applies Pfeiffer and Zhang to a collision in the high seas between two Australian Navy ships.  At the root of it there are some very fundamental and difficult questions before one gets to the final question of applying those decisions.  If one assumes that it is the lex loci delicti comisi, the question then arises:  what law is there on the high seas?  For example, there is an undecided question, your Honour will be surprised to hear, as to what law would apply if two Australian swimmers were halfway between Australia and New Zealand and one were to kill the other, there being no relevant boat in the vicinity.  There are some difficult questions of that sort as to how one deals with what law applies at sea in the absence of admiralty ‑ ‑ ‑

HIS HONOUR:   Yes.  I was looking at Mr Berger’s affidavit on which you move.  Could you just explain paragraph 11 to me a little?

MR BENNETT:   Yes, certainly, your Honour.  There are a large number of cases, as is indicated.

HIS HONOUR:   Yes, I can see that.  After all these years?

MR BENNETT:   Yes, your Honour.  Most of them were commenced quite recently, and so the limitation issue is a very live and important one from our point of view.

HIS HONOUR:   Yes.  It is really subparagraphs (b) and (c) that had me a little exercised.  Now, Blunden sued in the Supreme Court of the Australian Capital Territory.

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   What is the theory on which New South Wales becomes the limitation regime?

MR BENNETT:   Because, your Honour, if one takes the law of the place within Australia that has the closest connection to the commission of the tort, there are a large number of connections of the “Melbourne” with New South Wales and the nearest point ‑ ‑ ‑

HIS HONOUR:   The Naval Board was based in New South Wales, was it not?

MR BENNETT:   No, it is based in Canberra, your Honour.

HIS HONOUR:   Right, yes.

MR BENNETT:   But the nearest point, on one view of the calculation, is a point in New South Wales.  There are remarks by Justice Gaudron in Mewett about the last port of call.

HIS HONOUR:   Yes.  These issues lurked beneath the surface in Mewett really.

MR BENNETT:   Yes, that is so, your Honour.  But there are a number of factors in support of New South Wales.  We say there are more in support of the Australian Capital Territory.  There are really none in support of Victoria except connections with some of the plaintiffs.

HIS HONOUR:   How would the statute of James I have any application?  You have not pleaded it, I know.

MR BENNETT:   It is hard to see how it would.  It has been said that there is no limitation law in relation to the Commonwealth.  The statute, of course, is not itself part of the common law and in every relevant State and Territory it has been superseded by subsequent legislation.  So it is hard to see how the statute of James I could - it was the limitation law in the Capital Territory before 1985.

HIS HONOUR:   Yes, when they changed their regime.  Yes, I remember that.

MR BENNETT:   Yes.

HIS HONOUR:   Yes, I follow.  Well, I have looked at the matter and I think the preferable course on your application would be to make an order under section 40(2), leaving for debate whether there is a constitutional question – not foreclosing it, but not trying to anticipate it – under 40(2).  Am I right in thinking that – I think I am – the parties consent to that removal?

MR BENNETT:   That is my understanding, your Honour.

MR LITTLE:   Yes, your Honour.

HIS HONOUR:   Yes.  In any event, I would be satisfied under section 40(4)(b) that these circumstances are sufficient to merit removal.  Just before I make that order, there was a previous application for special leave but the matter then went back eventually and got sorted out at first instance, did it not?

MR BENNETT:   Yes.  The problem was, your Honour, that the Full Court of the Federal Court which had reversed Justice Crispin’s decision had allowed the appeal but not said what orders flowed from that.  We sought special leave and the court stood that over generally while the question of what order should be made was sorted out.  The Full Court then remitted the matter to Justice Crispin.  That has not been reheard.  That involves different questions.  That involves the question of how one applies the rules about prejudice and, where the section refers to a number of matters which are taken into account, whether one can ever say the prejudice is so severe that I do not need to look at the other matters.  And there are some issues about the nature of the test which we will be saying – and no doubt my learned friend will be saying the opposite – are common to a number of States and have been decided differently and they are important.  That question, of course, will only arise if the Court, on this hearing, ultimately determines that Australian Capital Territory law is the appropriate law.  If it is not, all of that goes away.

HIS HONOUR:   Yes.  In the Territory proceedings the issue is now joined on the pleadings, which makes it a convenient vehicle, I think.

MR BENNETT:   Yes.

HIS HONOUR:   I notice in paragraph 7 of the applicant’s outline there is a statement about costs, namely that:

The Commonwealth has agreed to pay Mr Blunden’s reasonable party/party costs in relation to removal and any subsequent hearing of the proposed stated case.

MR BENNETT:   Yes, that is the case, your Honour.

HIS HONOUR:   There is no need to make a formal order about that, is there?

MR LITTLE:   We do not require a formal order, your Honour.

HIS HONOUR:   I think you have them.  There is a statement of agreement on the record, I think.

MR BENNETT:   Yes.

HIS HONOUR:   Very well.  So on the motion in matter C18 of 2002, that is the matter of Blunden v The Commonwealth, I make an order in terms of paragraph 2 of the notice of motion filed on 12 December 2002.

Now, a question then arises of the case stated to get it before the Full Court.  You have a draft, have you not, Mr Solicitor?

MR BENNETT:   Yes.  Your Honour has a draft which is I think annexure A to the affidavit.

HIS HONOUR:   Yes, I have it.  What I propose, gentlemen, is that we just go through it briefly now.  It may require some adjusting in various ways.  If that can be sorted out and an engrossment prepared, I can sign the case in private chambers without any further attendance.

MR BENNETT:   Yes.  Your Honour can see there are a lot of detailed facts.

HIS HONOUR:   Yes, there are.  Can we just go through it.  In paragraph 2, I think we would probably be assisted if the Navy order was annexed.  They are fairly obscure publications, I think.  That is Commonwealth Navy Order 745/62.

MR BENNETT:   Yes.

HIS HONOUR:   Then in paragraph 5, the last sentence, the legal basis for that change in 1990 had better be indicated.  Do you see what I mean?

MR BENNETT:   Yes.  I think that is the sea and submerged lands legislation.

HIS HONOUR:   Exactly, yes.  I think that had better be made clear.

MR BENNETT:   Yes.

HIS HONOUR:   Then on page 6 – there is a specific statute governing Jervis Bay.  There had better be a reference to that, I think.

MR BENNETT:   It is a separate Territory.

HIS HONOUR:   I understand that, yes, but there is a statute that deals specifically with Jervis Bay in the early part of the last century, I think.  That had better be identified.

MR BENNETT:   When your Honour says page 6, is your Honour referring to ‑ ‑ ‑

HIS HONOUR:   I am sorry, I meant paragraph 6 – 6(a).  You see the land “adjacent to No 6 Beacon”, et cetera.  We had better get a reference to that statute.

MR BENNETT:   Yes.

HIS HONOUR:   Then footnote 1 on the next page had best be moved up, I think probably, and made part of a substantive document.  It might as well.  Then paragraph 20, regulation 12 there of the Naval Forces Regulations, that had better be annexed too.

MR BENNETT:   Yes.

HIS HONOUR:   Maybe it is already done by the last sentence of paragraph 20.

MR BENNETT:   Yes, I think that is only the index, your Honour.

HIS HONOUR:   Yes, that is right.  That is what I noticed.  I do not know how bulky it is.  If there are a lot of irrelevants in it, just annex the relevant.

MR BENNETT:   Yes.

HIS HONOUR:   Then paragraph 23, the Commonwealth Navy Order 275/61, we had better have the text of that too, I think.  Then the pleadings are annexed with 26.  Now, the important thing we reach is at 27.  I think the question reserved should really be expressed in terms of the actual pleadings rather than the question at large.  The actual pleadings, when one goes to it, are paragraphs 7 and 8 of the amended defence.  Paragraph 7 says:

the plaintiff’s action is statute barred by section 3 of Imperial Act 21, James 1 Chapter 16 or alternatively by section 11 of the Limitation Act 1985 (ACT).

Paragraph 8 says in the alternative that New South Wales applies.  It would have to be the 1969 – I do not want to be difficult.  I have an idea that the New South Wales 1969 Act did not come into force immediately.  It may have come into force after.  Someone had better check that.

MR BENNETT:   Yes.

HIS HONOUR:   What is the date of the ‑ ‑ ‑

MR BENNETT:   It was before that, I think, your Honour.

HIS HONOUR:   It is 1964, yes.

MR BENNETT:   It is 1964.

HIS HONOUR:   So if you are going to get into New South Wales, would there not be a question of the New South Wales regime before 1969?

MR BENNETT:   Yes.  It would depend on the transitional provisions, which we need to look at.

HIS HONOUR:   It would.  That had better be checked.

MR BENNETT:   Yes.

HIS HONOUR:   And, if need be, since this part of the cause is now here, 7 and 8 can be amended to accommodate that.

MR BENNETT:   Yes.  There is no problem with that on our side, your Honour.

HIS HONOUR:   Yes.  Then there is the reply to your defence, paragraph 2, which is the no statute point.  So what is needed, gentlemen, is

a question which, in effect, says are 7 and 8, or 7 and 8 as amended, and 2 of the reply, or which one or more is a good answer.

MR BENNETT:   Yes.  Would your Honour prefer that to be reparaphrased or just to refer to the sections of the pleadings?  It might be easier for the Court if it is actually set out rather than ‑ ‑ ‑

HIS HONOUR:   Yes, it would.  Yes, it would be easier to answer, I think.

MR BENNETT:   Yes.

HIS HONOUR:   Well, if that can be attended to and at a convenient time if it can be supplied in draft engrossment, I will look at it and hopefully there will not be any need to come back to the parties.

MR BENNETT:   Yes.

HIS HONOUR:   Now, that leaves the other two applications – just before I – is there anything else on that removal?

MR BENNETT:   No, your Honour.

HIS HONOUR:   I do not think so at the moment.  That leaves the other two applications.  Mr Little, at the moment I am only minded to remove one rather than three, particularly because the other two are somewhat entangled and seem to lack the specificity that is now presented in the one I have just removed.

MR LITTLE:   Yes.  As your Honour has perhaps observed, the two removal applications were really brought because Blunden did not seem to be going anywhere.

HIS HONOUR:   Yes.

MR LITTLE:   But there is the complicating factor in Mr Baker’s case that his health is precarious.  In saying that, it is not said that ‑ ‑ ‑

HIS HONOUR:   He will have the benefit of the speedy result hopefully in Blunden.

MR LITTLE:   That is really what we are endeavouring to achieve, your Honour, and if some sort of expedition could be given to Blunden, Burk and Baker could simply follow along by being adjourned to await the result in Blunden.

HIS HONOUR:   Yes.  What should I do?  Should I just adjourn the motions for removal with liberty to restore?

MR LITTLE:   Yes, liberty to restore – well, the only difficulty we have with the Victorian – the learned Solicitor‑General is making some remarks when he is not briefed in the case, I understand, your Honour.  So perhaps we had better get Mr Hanks’ views on this.  The only difficulty we have is that the matters are presently adjourned before the Court of Appeal in Victoria ‑ ‑ ‑

HIS HONOUR:   I understand that.

MR LITTLE:   ‑ ‑ ‑ who were a bit concerned about the progress of things.  Presumably they do not like just standing these tricky matters over.  I do not know whether your Honour ‑ ‑ ‑

HIS HONOUR:   Well, I do not want to do anything to interfere with their control of their own list.

MR LITTLE:   No.  I do not know whether your Honour would be minded to remit the matters, even on ‑ ‑ ‑

HIS HONOUR:   Well, there is nothing to remit yet.

MR LITTLE:   Remove, I am sorry, your Honour.

HIS HONOUR:   No, I am not going to remove them because that then holds up the Victorian court from doing what it wants to do.

MR LITTLE:   Yes.  Well, your Honour’s earlier suggestion, with respect, would be something we would accept, that it basically be adjourned to be brought on, if necessary, once Blunden has been determined.  The only additional factor that is in Burke and Baker is the question that Victorian law was agitated there as well.  That would be an additional question that would not be answered by Blunden, although the reasoning in Blunden would no doubt ‑ ‑ ‑

HIS HONOUR:   The reasoning would apply though, I think.

MR LITTLE:   It would no doubt apply, yes.

HIS HONOUR:   Yes.  We will ask Mr Hanks what his position is.

MR HANKS:   Your Honour, we would not oppose the two applications being adjourned.  As your Honour knows, we had a concern about the ripeness of the applications in any event.

HIS HONOUR:   Well, I have too, yes.

MR HANKS:   So we would not oppose that, your Honour.

HIS HONOUR:   All right.  In the matter of Baker, which is a removal application on motion filed 21 November 2002 in M199 of 2002, I will stand that motion over with liberty to either party to restore before a Justice on 14 days written notice.  I will reserve costs of today and certify for counsel.  Then in Burk, where the motion for removal is filed 21 November 2002 in M200 of 2002, I will make orders to the same effect as those I have just made in Baker.  In addition to the orders I have made in Blunden, I think I should certify for counsel in that as well.  Costs of the removal application will be costs of the cause in this Court.  Is that suitable?  I think so.

MR LITTLE:   Yes.  Would your Honour be prepared to make an order for expedition in Blunden, given that ‑ ‑ ‑

HIS HONOUR:   We do not have to rush around making - I am seized of the importance of it.

MR LITTLE:   Yes.

MR BENNETT:   We support that, your Honour.

HIS HONOUR:   Yes, I understand that.  Now, it would be a one‑day case, would it?  Is it likely to provoke interest by the State Attorneys?  That is the real question, because interventions tend to blow things out.

MR LITTLE:   We understand a number of the State Attorneys said they did not wish to be heard at this stage but may review their position ‑ ‑ ‑

HIS HONOUR:   They tend to change their mind when it gets here.

MR LITTLE:   They said they wanted to review their position if the matter was given ‑ ‑ ‑

HIS HONOUR:   Yes, and they do not always change it.

MR BENNETT:   Yes, I would have thought it is a day, your Honour.  There are really two issues.  There is the issue of what law applies at sea and the issue then of, if it is the place with the closest connection, what is the place with the closest connection.

HIS HONOUR:   Yes.  I will say one day plus.  All right.  Is there anything else in those three matters?  I will take a short adjournment.

AT 11.27 AM THE MATTERS WERE CONCLUDED