Crawford v The State of Western Australia

[2022] HCATrans 211

[2022] HCATrans 211

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 AND BY VIDEO CONNECTION

ON MONDAY, 5 DECEMBER 2022, AT 11.56 AM

Copyright in the High Court of Australia

HER HONOUR:   In accordance with the Court’s protocol when sitting remotely, I will announce the appearances of the parties.

MS R. YOUNG, SC appears for the plaintiff.  (instructed by Fiona Low, Barrister & Solicitor)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia appears with MS F.B. SEAWARD, SC for the defendant.  (instructed by State Solicitor’s Office (WA))

HER HONOUR:   Ms Young.

MS YOUNG:   Yes.  If your Honour please, does your Honour have, first of all, the draft special case dated 1 December 2022?

HER HONOUR:   I should tell you, and I should have announced this at the beginning, I have the draft agreed special case together with the amended pleadings, your proposed submissions on the directions, the proposed directions, and the defendant’s submissions on the directions.

MS YOUNG:   Yes, your Honour . . . . . the plaintiff filed any submissions in respect of the directions, but the plaintiff has filed its proposed minute of directions dated 2 December 2022.

HER HONOUR:   Thank you.

MS YOUNG:   Yes.  Now, your Honour, you will see from my friend’s submissions that the directions proposed by the plaintiff are agreed.  Can I take you through those directions?

HER HONOUR:   I have a question – two questions.  First, if I may, the first is that I understand that the amended pleadings and the amendments are agreed, is that right?  And they have been filed as amended documents.

MS YOUNG:   Yes, your Honour.

HER HONOUR:   Second, I should tell you that I am by no means satisfied that this matter is appropriate to be referred to a Full Court in accordance with your proposed directions, even though they are by agreement.  Can I raise three issues with you which are of concern to me.

MS YOUNG:   Yes, your Honour.

HER HONOUR:   The first is the matters raised by Mr Thomson in his submissions.  The second is the discursive nature of the facts, which are set out in the proposed special case.  Then the third is, and it really then derives from those difficulties with the facts, and that is that of the questions themselves, and at the moment I am not at all satisfied that it is appropriate that this matter be referred to the Full Court.  Do you want to say anything about those three issues, Ms Young?

MS YOUNG:   Yes, your Honour.  If I can start with the first.  With respect to the issue that the State has raised, which is as to the non‑admission by the plaintiff of the positive allegation made in paragraph 20(b) of the amended defence, in the plaintiff’s position, she does not propose to submit that the Court ought draw some other factual inference, however the plaintiff’s position is that a finding of fact consistent with that positive assertion by the defendant in its defence is unnecessary and irrelevant to the proceedings.  What is necessary and relevant to the proceedings is the purported exercise on the plaintiff’s case, or the exercise on the defendant’s case, of power under section 11 of the Children’s Court Act by the President.

Whether or not the relevant determination under section 11 was made by the President prior to the exercise of that power is not a question for this Court in the constitutional challenge.  So, in the plaintiff’s submission, your Honour, that fact, if the State maintains that it ought to be dealt with, because it is, for whatever reason, in the State’s position, relevant to constitutional determination, that can be dealt with in the same way as the other facts within the agreed special case, which the defendant has agreed, but which it has accepted are not relevant.  So, in our submission, that non‑admission does not preclude the referral of this matter to the Full Court by that special case, it is a question of relevance which can be dealt with at the hearing.

Your Honour, with respect to the second matter as to the facts within the special case, the facts, in effect, largely pick up the pleadings and those matters which are agreed on the pleadings with respect to either the two courts that are in issue and the legislation under which they operate.  The facts otherwise deal with what we say are contextual matters to assist the Court in understanding the role and the way that dually appointed magistrates operate.  In our submission, none of the facts or the way that it is drafted would preclude a determination of the relevant constitutional issues.

Finally, your Honour, with respect to the questions themselves, in our submission, the questions are limited to, essentially, this.  The first question is essentially the constitutional issue, so that is, do the relevant amendments:

undermine the institutional integrity of the Magistrates Court or the Children’s Court –

for the grounds which the plaintiff contends in her statement of claim.  And then, questions 2 and 3 deal with the documents, which are said to be issued underneath those powers and the validity of those.  The final question is consequential on those.  So, in essence, your Honour, we would say that the nub of the issue between the parties is captured by question 1, and the balance of the questions 2 to 4 effectively deal with the notices that were issued so as to give complete relief to the issues that are agitated as between the parties.

HER HONOUR:   Anything else you wish to say, Ms Young, about those issues that I have raised?

MS YOUNG:   No, your Honour.

HER HONOUR:   Thank you.  Mr Thomson.

MR THOMSON:   Thank you, your Honour.  We do say a couple of things.  First, in relation to the question about paragraph 20(b) of our defence ‑ ‑ ‑ 

HER HONOUR:   I should say, in fairness, Mr Thomson, that I put my concerns about that in a not‑dissimilar camp to the rest of the facts set out in the special case.

MR THOMSON:   Certainly.  Although it does fall into a slightly different category, because that is a matter where the Court is going to be asked to draw a factual inference.  No other factual inference, other than the one that we have contended for is to be placed before the Court, but it is to be said that the Court ought not to do it, because it is irrelevant.  Now, it is not clear, precisely, why it is said to be irrelevant, and it may be because, having heard what my friend Ms Young has to say, that what is contended is that, actually, the relevant power was not exercised at all.

If that is the case, then that is a question of fact that ought not to detain this Court.  If that is what is the position that Ms Young and her clients are adopting, then that is a good reason why it ought not to be before this Court.  In relation to the more general position about the discursive nature of the facts, we certainly take the position that most of those facts are irrelevant.  This is a question of a challenge to the validity of legislation, and we have, for that reason, said that the special case in its draft form needs to be prepared with facts that we say are irrelevant shown in red, and you will see that there is actually quite a significant number of allegations of facts that are shown in red.

They are all of the matters, really, that are apart from the legislation itself.  Typically, in a case involving a challenge to the constitutional validity of legislation, all that the Court ought to know before it, really, is the legislation, the relevant provisions, and perhaps a little bit of factual context.  It should not extend, as in this case, to matters such as the appointment of the particular magistrates many years or decades previously, and it should not extend to any question about whether the appointment was made in a particular manner, and that there was an assignment in a particular manner.

All of those things seem to be redolent of the idea that, somehow, what has transpired previously has a bearing upon constitutional validity.  It might be that, in another context, it was said that those matters that had occurred previously would be relevant to undertakings about the way in which this particular magistrate would be treated, but none of that is relevant to questions of simple and plain constitutional validity, and particularly one – a question of constitutional validity based upon the operation of Chapter III of the Constitution.  That is a very plain and arid type of matter, if I could put it that way, which does not need the colour and movement of the facts.

So, the insistence that those matters be included in the draft special case has made us concerned that the case is rather too widely drawn for the Court to be considering at a Full Court level.  We draw all of those things to the Court’s attention because of the care which the Court is taking in order to ensure that only matters that are properly put together are referred to the Full Court.  So, there is no factual dispute about the matters, we have taken ‑ ‑ ‑ 

HER HONOUR:   I missed that last thing.  What did you just say then, Mr Thomson?  There is no factual ‑ ‑ ‑ 

MR THOMSON:   Dispute about the particular matters.

HER HONOUR:   “Dispute”, thank you.

MR THOMSON:   We have taken some care to make sure that they are drawn properly.  But, having said that, we do not know what the relevance of most of those matters happen to be, and why it is that, for example, the fact that this particular magistrate was appointed as a dually appointed magistrate and then operated mostly in the Magistrates Court in its general jurisdiction first and then transferred to the Children’s Court should be of any relevance at all to the question of constitutional validity.

HER HONOUR:   If the matter was remitted, where would you propose it be remitted to?

MR THOMSON:   It should be going to the WA Supreme Court.

HER HONOUR:   Are there any other matters you wish to raise?

MR THOMSON:   I think that, so long as the second and third questions are regarded as simply consequential upon the first question and not raising any independent issues, then they are correctly drawn, but, again, we apprehended that there might have been some endeavour or some thought that it should be that they drag in some of these other issues.  If that is not the case, as we have been told, then that is perfectly fine and they simply fall into line according to the answer to the first question.

HER HONOUR:   Yes.  Anything else, Mr Thomson?

MR THOMSON:   No, your Honour.

HER HONOUR:   Thank you.  Ms Young.

MS YOUNG:   Yes, your Honour.  There are two points I wish to emphasise.  The plaintiff’s position is not that – that is, we are not dealing with a situation where there is not a purported exercise of power under section 11.  The position of the plaintiff is there was a purported exercise of power under section 11, and similarly, we note on the defendant’s case that there was an exercise of power under section 11.  The issue that is raised by paragraph 20(b) is whether or not a determination was in fact made validly, having regard to the considerations to exercise that power.

That question of a valid exercise, having regard to whether or not the relevant considerations had been made by the President, is a different question, it is an administrative law question not relevant to the constitutional challenge.  So, that is why we say that finding of fact that is sought by the State is irrelevant to the constitutional proceedings.

The second aspect I wish to emphasise is that the contextual matters which go as to demonstrate the background of the plaintiff’s position as a dually appointed magistrate and where she sits are relevant factual matters that help frame the constitutional issues in these proceedings.  First because they demonstrate, as is uncontested, that she was a dually appointed magistrate, which has implications, given the way the legislation operates on dually appointed magistrates.

Secondly, because of the consent argument that is raised by the plaintiff as part of the constitutional challenge to say that because the basis of her work is being altered from a full‑time position to appoint to full‑time equivalent without her consent, that is an indication that the legislation under which it is happening is invalid because, effectively, the nature of her appointment is being changed without her consent, undermining her

security of tenure and her decisional independence.  That is why we say those contextual facts are important and relevant to the special case.

HER HONOUR:   Can I ask another question.  If I was minded to remit this matter, where would it be remitted to?

MS YOUNG:   Well, your Honour, it could be remitted to the Federal Court or to the Supreme Court.

HER HONOUR:   Do you have a preference?

MS YOUNG:   I understand the plaintiff’s preference is to the Federal Court.

HER HONOUR:   I see.  All right.  Anything else you wish to say in relation to this matter?  I must say, I will go away and consider the matter, but I remain concerned about it on the state of the current pleadings as well as the current draft case, as I have identified.

MS YOUNG:   I have nothing else to say, your Honour.

HER HONOUR:   Mr Thomson, do you wish to say anything further?

MR THOMSON:   What my friend Ms Young has just identified in relation to the making of the decision is that she says that it is irrelevant what considerations – the basis upon which the decision was made and effectively wishes to reserve a position that says, at some point in the future, in a different proceeding, we might be able to challenge the basis of the actual decision because it was not made on the basis of considerations that we regard as proper.

So, therefore, you are left with a position which says that, for the purposes of the special case, it is not actually agreed that the President made the decision, which is the critical decision, upon the basis that he says he made it in the letter that I have reproduced.  And if that is not agreed for the purposes of the special case, and Ms Young says it is not agreed because it is irrelevant, and therefore allows the plaintiff to challenge the actual decision and judicial review proceedings elsewhere, that really, I think, points out the difficulty of this matter being referred to the Full Court.

HER HONOUR:   Well, it is one of the reasons why I am gravely concerned about it.  Do you have any objection to the matter being remitted to the Federal Court?

MR THOMSON:   Not particularly, your Honour.  It just is a matter which relates to the operation of WA Courts, it is a matter which involves the

jurisdiction – through the heads of jurisdiction within the WA Court system conferring with each other, and then a challenge being made to that upon a basis which says, well, the heads of jurisdiction within the WA Court system cannot speak to each other to allocate work and that the legislation that allows that is incorrect, it really is a matter of the WA Court system.

In that sense, it seems much more appropriate that it should be dealt with by the Supreme Court of the West Australian jurisdiction, because it is a matter, if you like, which concerns the operation of the WA Court system.  Obviously, there is a federal dimension to it, because the Constitution, in Chapter III, has been invoked, and it could go to the Federal Court, but the preferable course, we say, would be for it to go to the Supreme Court for the very reasons that I have just mentioned.

HER HONOUR:   Thank you.  Ms Young, anything further in final submissions?

MS YOUNG:   No, thank you, your Honour.

HER HONOUR:   Thank you.  I will consider what course the Court might take and I will publish orders with some short reasons, and it will not be necessary for parties to attend.  Adjourn the Court.

AT 12.15 PM THE MATTER WAS ADJOURNED