Clarkson v Commonwealth of Australia & Ors

[2007] HCATrans 72

[2007] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S35 of 2007

B e t w e e n -

MARK ALFRED CLARKSON

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

and

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Second Defendant

and

HIS HONOUR JUDGE G.S. HOSKING, SC OF THE DISTRICT COURT OF NEW SOUTH WALES

Third Defendant

and

STATE NSW COMMISSIONER OF CORRECTIVE SERVICES

Fourth Defendant

Directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 14 FEBRUARY 2007, AT 9.51 AM

Copyright in the High Court of Australia

__________________

MR P. ROBERTS, SC:   If your Honour pleases, I appear for the Commonwealth and the Commonwealth Director of Public Prosecutions, with my learned friend, MR L.K. CROWLEY.  (instructed by Commonwealth Director of Public Prosecutions)

HIS HONOUR:   Yes, Mr Roberts.

MR ROBERTS:   I do not think Mr Clarkson will be with us this morning.

HIS HONOUR:   No, what was the position?  There are detailed written submissions which I have looked at from both sides.  What happened in the New South Wales courts?

MR ROBERTS:   The decision was reserved, so what I was afeard of would be there would be a problem with remitter but there will not be since it is reserved, so I would ask your Honour to remit the matter to the Supreme Court.

HIS HONOUR:   Another avenue might be to keep it here and dismiss it.

MR ROBERTS:   That was my first – I thought it would be more complicated if – given that there has recently – there is a notice of a constitutional matter.

HIS HONOUR:   Is there?

MR ROBERTS:   There is, but it seems to have nothing to do with the application.

HIS HONOUR:   Yes.  Is there any difficulty in remitting this to the Supreme Court rather than the Federal Court?

MR ROBERTS:   No, but the Supreme Court is dealing with ‑ ‑ ‑

HIS HONOUR:   It is already dealing with it, is it?

MR ROBERTS:   It is already dealing with the very same matter.

HIS HONOUR:   Yes.  That is in the appellate structure, is it not?

MR ROBERTS:   No, the application for certiorari was filed in the Supreme Court and it was referred to the Court of Appeal, the Court of Appeal dealing with the question of the stated case.  The number of the proceedings was 30137 of 2006 in the Supreme Court ‑ ‑ ‑

HIS HONOUR:   Is that in the common law division?

MR ROBERTS:   Yes, 30137 of 2006 and those proceedings were part of the proceedings heard on Monday by a joint sitting of the Court of Appeal and Court of Criminal Appeal.

HIS HONOUR:   Yes.  It certainly cannot stay here.

MR ROBERTS:   No.

HIS HONOUR:   It is quite vexatious for it to stay here.  If it goes to the Supreme Court I suppose – the points seem to be overlapping to some significant degree, anyway, with what is in the Supreme Court already.

MR ROBERTS:   Yes.  The only additional matter was the order seeking a stated case which for some reason was not part of the order or orders that were sought in the Supreme Court although that matter was ventilated on Monday, in any event.

HIS HONOUR:   Yes.  Mr Clarkson is in custody on the State offences but no longer in custody on the federal offences.

MR ROBERTS:   That is right.  He is due to be released in, I think, two or three weeks.

HIS HONOUR:   Yes, that is right.  I noticed that.  In March some time.

MR ROBERTS:   Yes.

HIS HONOUR:   Very well, then.  What about 38(e) of the Judiciary Act? Does that cause any problem?  I suppose it says:

Subject to sections . . . 44, the jurisdiction of the High Court shall be exclusive -

of the State jurisdiction where:

mandamus or prohibition is sought against an officer of the Commonwealth ‑ ‑ ‑

MR ROBERTS:   The Commonwealth officer relied upon here is Judge Hosking, who I do not think is a Commonwealth officer.

HIS HONOUR:   Yes.  What about the Director of Public Prosecutions?

MR ROBERTS:   He presumably is, but he was a litigant in the proceedings.  He has not made any order.  It is only where somebody has made an order, I would have thought.

HIS HONOUR:   Yes, that seems to be right.  Judge Hosking is certainly not an officer of the Commonwealth.

MR ROBERTS:   No.

HIS HONOUR:   Yes, very well.

1.Order pursuant to section 44 of the Judiciary Act 1903 (Cth) that the whole of the matter pending in this Court, No S35 of 2007 be remitted to the Supreme Court of New South Wales Common Law Division.

2.The Court notes that the matter is related to action 30137 of 2006 in the Common Law Division of the Supreme Court.

3.Steps in this Court be treated as steps taken in the Supreme Court.

4.Costs in this Court be costs as awarded in the Supreme Court, if any.

Is there anything else?

MR ROBERTS:   I do not think so, your Honour.

HIS HONOUR:   Yes, thank you, Mr Roberts.

MR ROBERTS:   Thank you, your Honour.

AT 9.59 AM THE MATTER WAS CONCLUDED