Crawford v The State of Western Australia

[2022] HCATrans 213

[2022] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P26 of 2022

B e t w e e n -

HER HONOUR CATHERINE PATRICIA CRAWFORD

Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 DECEMBER 2022, AT 9.30 AM

Copyright in the High Court of Australia

HER HONOUR:   Matter number P26 of 2022 is a proceeding commenced in the original jurisdiction of this Court under section 76(i) of the Constitution and section 30(a) of the Judiciary Act 1903 (Cth), seeking relief including a declaration that various amendments made by the Courts Legislation Amendment (Magistrates) Act 2022 (WA) to the Children’s Court of Western Australia Act 1988 (WA) and the Magistrates Court Act 2004 (WA) are invalid.

The parties filed a proposed special case and sought orders for the proceeding to be referred to the Full Court for hearing.  I refuse leave to the parties to state the questions of law arising in the proceeding in the form of the proposed special case and remit the proceeding to the Federal Court of Australia.  I publish my reasons and direct that the reasons as published be incorporated into the transcript.

In matter number P26 of 2022, the orders of the Court are:

1.Leave is refused, under r 27.08.1 of the High Court Rules 2004 (Cth), to the parties agreeing in stating questions of law in the form of the proposed special case for the opinion of the Full Court.

2.The proceeding be remitted to the Western Australia Registry of the Federal Court of Australia pursuant to s 44(1) of the Judiciary Act1903 (Cth).

3.The proceeding continue in that Court as if the steps already taken in the proceeding in this Court had been taken in that Court.

4.The Registrar of this Court forward to the proper officer of that Court copies of all documents filed in this Court.

5.The costs of the proceeding to the date of remittal including the costs of this order are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that Court and in the discretion of that Court.

I publish those orders.

The plaintiff, a duly appointed magistrate to the office of Magistrate of the Magistrates Court of Western Australia under cl 3 of Sch 1 of the Magistrates Court Act 2004 (WA) (“the MC Act”) and to the office of Magistrate of the Children’s Court of Western Australia under s 10(1) and (4) of the Children’s Court of Western Australia Act 1988 (WA) (“the CC Act”), filed a writ of summons and statement of claim in the original jurisdiction of this Court seeking, among other relief, a declaration that amendments made by the Courts Legislation Amendment (Magistrates) Act 2022 (WA) (“the Amendment Act”) to ss 10(5)(a), 10(5)(b), 11 and 54 of the CC Act and cll 12(6) and 12(7) of Sch 1 of the MC Act are invalid.

Pursuant to the Amendment Act, under s 11 of the CC Act, the President of the Children's Court is empowered, at their “absolute discretion”, to, in effect, give the Chief Magistrate a notice that a particular dually appointed Magistrate is to change the extent of their performance of Children’s Court functions. In short, the plaintiff’s contention is that the relevant powers conferred on the President by the Amendment Act compromise the institutional integrity of the Magistrates Court and Children’s Court contrary to Ch III of the Constitution, for two reasons.  First, the powers impair or detract from the reality and appearance of the independence of the Children’s Court or its Magistrates, or the Magistrates Court or its Magistrates.  Second, the powers compromise the security of tenure of either office of a Magistrate dually appointed.

After the close of pleadings, the parties proposed a special case which identified three questions for the opinion of the Full Court directed at the issues just identified and provided consent directions for that proposed special case to be referred to the Full Court.  At a directions hearing, I expressed some doubt about the proposed special case being appropriate to be referred to the Full Court.  That doubt was raised having regard to the contents of the amended pleadings, the discursive nature of the facts in the proposed special case (many of which the defendant did not accept were relevant), the issues sought to be agitated and the submissions filed by the defendant prior to the directions hearing.  At the invitation of the Court, the parties’ oral submissions sought to address each of the concerns.

Unfortunately, the parties’ submissions only enhanced the concern that this is not a matter in an appropriate form to be referred to the Full Court.  In short, it is by no means clear, despite its discursive nature, that the proposed special case includes all of the facts necessary to answer the questions stated for the opinion of the Full Court[1].  Also, it is by no means clear that the questions stated for the opinion of the Full Court are the right questions or are questions which necessarily will arise for determination by the Full Court[2] . To take just one example, the parties were in dispute about the fact of, and legal significance to be attached to, what the President of the Children’s Court did on 2 May 2022 in issuing a notice under s 11 of the CC Act and, in particular, whether that “purported” exercise of the power by the President was a valid exercise of the power having regard to whether or not relevant considerations were taken into account.

In light of those matters, I refuse leave to the parties to state the questions of law arising in the proceeding in the form of the proposed special case for the opinion of the Full Court[3].  The proceeding should be remitted to enable the relevant factual and legal issues to be identified and resolved at trial.  In the event that remittal was to be ordered, the plaintiff sought to have the proceeding remitted to the Federal Court of Australia.  The defendant submitted that having regard to the nature of the issues raised and that the proceeding concerns State legislation and State Courts, the proceeding should be remitted to the Supreme Court of Western Australia.  There being no dispute that the Federal Court has jurisdiction to hear and determine the issues raised in the controversy between the parties[4], and the plaintiff as the filing party being entitled to select the Federal Court of Australia as the appropriate forum (subject, of course, to challenge by the defendant), the proceeding should be remitted to the Western Australia Registry of the Federal Court of Australia.

The orders are:

[1] High Court Rules 2004 (Cth), r 27.08.3.

[2]    Mineralogy Pty Ltd v Western Australia (2021) 95 ALJR 832 at 846 [56]; 393 ALR 551 at 565, citing Lambert v Weichelt (1954) 28 ALJ 282 at 283.

[3]High Court Rules, r 27.08.1.

[4]    See, eg, Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 475; Fencott v Muller (1983) 152 CLR 570 at 603-604.

1. Leave is refused, under r 27.08.1 of the High Court Rules 2004 (Cth), to the parties agreeing in stating questions of law in the form of the proposed special case for the opinion of the Full Court.

1. The proceeding be remitted to the Western Australia Registry of the Federal Court of Australia pursuant to s 44(1) of the Judiciary Act1903 (Cth).

1. The proceeding continue in that Court as if the steps already taken in the proceeding in this Court had been taken in that Court.

1. The Registrar of this Court forward to the proper officer of that Court copies of all documents filed in this Court.

1. The costs of the proceeding to the date of remittal including the costs of this order are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that Court and in the discretion of that Court.

AT 9.33 AM THE MATTER WAS CONCLUDED