Culleton v The State of Western Australia

[2025] HCATrans 29

[2025] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C16 of 2024

B e t w e e n -

RODNEY NORMAN CULLETON

Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 9 APRIL 2025, AT 11.38 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR R.N. CULLETON appears in person.

MR C.S. BYDDER, SC appears for the defendant.  (instructed by State Solicitor for Western Australia)

HIS HONOUR:   Mr Culleton, can you hear me?

MR CULLETON:   Yes, loud and clear, your Honour.

HIS HONOUR:   Yes, and I can hear you.  This matter has been called for a directions hearing, and the specific question the Court wishes to consider is whether the proceedings should be remitted to the Federal Court of Australia.  I have some written material from you on that topic.  Is there anything further you wish to say about whether they should be remitted?

MR CULLETON:   Well, we oppose that but can I just – a couple of matters housekeeping, your Honour.  I just want to let the Court know that since filing this application I have broken my left leg and I am on some serious painkillers, but I am okay to proceed.  Just to make sure, for clarity, this is a directions hearing, and I have only, of yesterday, received filing of the defendant’s outline of submissions.

So, I am little bit confused whether they are foreshadowing an interlocutory application to oppose the section 44 remittal or are we just dealing with that today at the discretion of the High Court, because I have made some notes and I will need at least 10 or 15 minutes to address the Court, under my circumstances? I have only just perused their submissions to oppose it, because I would have thought they would – as a matter of due process – served that on me a few days prior so I had time to go over it and present to the Court. So, as long as you are aware of that, your Honour, I am okay to proceed, but I will read off a paper because that is the best I can do under the circumstances.

HIS HONOUR:   That is fine, Mr Culleton.  The Court is considering it of its own motion, and I am ready to hear what you have to say on the topic.

MR CULLETON:   Okay.  First of all, I understand his Honour would be in receipt of the defendant’s submissions for directions hearing today.  It was filed with the High Court on 8 April.  Although it is dated 7 April, it did not come to filing until 8 April, which was yesterday.  So, are you in possession of that document, your Honour?

HIS HONOUR:   I am.

MR CULLETON:   Have you had a chance to read through that document, your Honour?

HIS HONOUR:   I have, I have read everything.  I have also read, I think, your material, as well, Mr Culleton.

MR CULLETON:   Yes, notwithstanding that I take anything away from my original application, because I have the right – as the former Federal Senator – I am to understand this part of the law and I certainly understand that the High Court is the guardian of the rights inherited at Federation, and that is the whole reason why I have come to the High Court and I do not want it to be remitted down to an inferior court which I believe does not have the jurisdiction.

What I will do is I will go through point by point.  It will take me about 10 minutes.  I want the Court to be very patient.  I have done these notes at very late notice, but I want to just read it out now.  So, can you hear me clearly?

HIS HONOUR:   Yes, I can.  Please continue.

MR CULLETON:   Okay, look, as everyone knows, this is the preservation of the effect of Federation.  The applicant submits to the High Court as guardian of the rights inherited at Federation, and that is the key issue here, your Honour, because we cannot affect the rights of Federation.  The issue at hand goes to the very core of Australian Federation.

The federal union is the foundation of the relationship between the Commonwealth and the States.  The applicant stands before the Court to prevent the States from dissolving the effects of Federation, a process that – if allowed to continue – will fracture the very principals underpinning our system of government.

Your Honour, I stand here basically in the shoes of Gratwick v Johnson as the guiding precedent in this case.  No offence, I stand as Gratwick other than standing as Palmer.  The applicant stands in the same position as Gratwick, in this case, wherein the right of intercourse in that case was paramount to preserving the integrity of Federation.  The principals of free movement and non‑discriminatory treatment of States must remain protected from any actions that seek to erode the constitutional compact between the States and the Commonwealth.

I want to make it very clear that we were prohibited – well, I was certainly, and a lot of people – from going home to see their sick family members, because I was allegedly prohibited coming back into the – travelling to the western side of this wonderful self‑governing colony, your Honour, by the State police, not the Commonwealth police on Commonwealth jurisdiction.  It is very important you put that on the Court record.

Okay, the applicant contends that the Federal Court does not have jurisdiction to address the constitutional issues related to the interstate movement of people and goods, under section 92 of the Constitution.  Such matters fall within exclusive jurisdiction of the High Court.  I want to express that, your Honour.  The High Court – you sit there as the guardian to the rights inherited at Federation.

Let us look at the proper application of section 92 and the flawed current understanding, which it seems to have posed itself from the Palmer Case. Section 92 of the Constitution provides free interstate trade and intercourse. The applicant submits that the current interpretation of section 92, which focuses on discriminatory protectionism, is insufficient to address the more fundamental issue of actions that undermine the federation itself.

The applicant argues that the scope of section 92 should broadened to encompass protections that ensure the cohesion of the Federation. This includes preventing border closures of any measures that would erode the principal of free movement between the States. The applicant submits that the Palmer Case narrows the interpretation of section 92, your Honour. Confined to economic protectionism does not provide adequate protection against actions that would destroy the union of the States, and because, you know, their submission hangs heavily on the Palmer Case, your Honour, at first glance.

The Palmer Case is not applicable to this matter.  Unlike Palmer, where the case was concerned with economic protectionism between the States, the present case involves constitutional questions regarding the very integrity of the Federation.  Thus, the High Court must directly address the issue rather than delegate to an inferior local court, because basically what I am saying, your Honour, anyone can do commerce and trade, but when you need to go and see family loved ones or go and have a beer with your relatives, you have to leave the State.

The issue of remittal to the Federal Court. I want to make this fundamentally clear. The applicant submits that any attempt to remit this matter to the Federal Court is not only improper but would undermine the jurisdiction of this High Court to hear matters of national significance and constitutional importance. Section 44 of the Judiciary Act 1903 – which you hold the discretionary power, I understand – provides for remittal, but this Court’s discretionary power should be exercised with extreme caution, particularly in cases where there is no genuine factual dispute and the matter concerns fundamental constitutional principles.

In Palmer v Western Australia (2021) 272 CLR 505, the High Court remitted the case to the Federal Court due to a factual dispute. However, in the present matter, there is no factual dispute that requires factfinding by the Federal Court. The issue at hand is purely a constitutional one, your Honour, which involves the right of intercourse and preservation of Federation, both of which fall squarely within the jurisdiction of this High Court.

The applicant further submits that remitting this matter to the Federal Court would be an abuse of process.  I understand that they want to strike me out anyway, your Honour, under 28.01.2 for abuse of process, but I think that is a real attack on Federation, to be honest.  The applicant further submits that remitting this matter to the Federal Court would be an abuse of process.  I want to reiterate that.  The State seeks to avoid the High Court’s jurisdiction over interstate intercourse, and this cannot be allowed as the case presents significant constitutional issues that demand the High Court’s direct intervention.

Judicial discretion and abuse of process. The applicant submits that the exercise of judicial discretion in this case must be carefully examined. Discretionary power under section 44 of the Judiciary Act 1903 cannot be used to bypass the High Court’s exclusive jurisdiction over matters of constitutional significance; as I state, Federation. The applicant asserts that the Federal Court does not have the constitutional authority to invalidate State Acts and infringe upon the right of intercourse under section 92. Therefore, the High Court must exercise its jurisdiction for this matter, as any remittal to the Federal Court would be improper delegation of this Court’s jurisdiction.

The open court principle in remote hearings.  The applicant submits that the open court principle is of critical importance in this matter.  That is why I am making it very public, your Honour.  The principle as outlined by Justice Gummow in Grollo v Palmer (1995) 184 CLR 348 dictates that:

justice must not only be done but must be manifestly seen to be done.

The applicant objects to the remote hearing proposal, as no compelling jurisdiction has been provided to displace the open court principle.  The nature of this case does not warrant a departure from the principle of open justice.  Remote hearings are inoperative in matters of constitutional importance that affect the very structure of Federation.

I want to point you to the case of AZC20 and judicial powers.  In AZC20 v Minister for Immigration (2023) 278 CLR 512 the High Court reiterated that exceptions to the open court principle should not be lightly extended. The applicant submits that the current case does not fall within the exceptional circumstances identified in Hogan v Hinch (2011) 243 CLR 506. At point 78 of the judgment, your Honours say:

The reasons for these exceptions lie partly in their historical existence as circumstances which, whilst not exclusively a matter for judicial power –

This is word for word:

can also be “incidents in the exercise of strictly judicial powers”.  But “[h]istory alone does not provide a sufficient basis for defining the exercise of a power as judicial power”.  The exceptions are based also upon the involvement of the judicial process at a systemic level despite the absence of a real dispute about rights, duties or liabilities.  Each exception is incidental to the strictly judicial power that would be exercised in resolving real disputes in that field.  The exceptions assists to ensure the efficient functioning of dispute resolution in a particular area when real disputes arise.

The applicant also relies on this case to argue that judicial power must be exercised in a way that minimises the intrusion on the open court principle and respects the public’s right to see justice done.

Your Honour, what I have done is I have done some quick notes – a quick perusal of the defendant’s submission, or respondent’s submission.  At first glance, highlighting weaknesses in the respondent’s submission, the applicant submits that the respondent’s submissions in support of remitting this case to the Federal Court are flawed and fail to properly address the constitutional significance of this matter.

The respondent has argued that the Federal Court is an appropriate forum for factfinding.  However, as outlined, there is no factual dispute to be resolved.  The issue at hand is purely constitutional and, as such, it is for the High Court to determine the matter directly.  Furthermore, the respondent’s submissions fail to address the key issue of Federation.  That is the elephant in the room here, your Honour – Federation.  The actions of the States as outlined in the case are in direct conflict with the principles of Federation, and the Federal Court lacks the authority to resolve such disputes.

The respondent’s reliance on Palmer is misplaced.  This case is distinguishable from the present matter in that it involves economic

protectionism and factual disputes, whereas the case concerns the preservation of the Federation and the right of intercourse, which are matters properly addressed by this Court only.  The respondent has failed to provide any valid justification for moving the case to a remote hearing, which would infringe upon the open court principle.  As previously submitted, no compelling reason exists to justify such a departure from public access to justice in this case.

I want to conclude with this, your Honour.  The applicant submits that the High Court’s exclusive jurisdiction over matters affecting the Federation, and the rights of intercourse must be preserved in the interests of the public and justice.  Remittal to the Federal Court is improper in this instance and should be rejected.  The applicant stands in the shoes of Gratwick, as I stated, your Honour, and not Palmer, and I can say I mean no offence to that.  As such, the constitutional issue involved should be directly addressed by this High Court.  The applicant respectfully requests that the High Court exercises jurisdiction over this matter and rejects any attempts to remit the case to a lower court.  The Federal Court does not have jurisdiction to address the constitutional question raised in this case. 

I just want to take you to their conclusion or their submissions, your Honour, and bearing in mind I have not really had time to go through this, but I take you to point 31, at the conclusion, I think these guys make it very clear at 31(a):

For the reasons given above, the Defendant respectfully submits that:

(a)this matter might conveniently be heard elsewhere than the High Court –

That is not a question of law, your Honour.  That is not a question of law.  For those reasons, I submit these part‑oral submissions, and obviously – if his Honour would be mindful, because I believe this is a foreshadowed interlocutory application – I am not sure how these submissions would be filed at late notice to try and place a prohibition against the jurisdiction of the High Court when the Federation is the key principle issue at hand, your Honour.

I will finish up on that.  Thank you for the Court’s time.

HIS HONOUR:   Thank you, Mr Culleton.  Mr Bydder, given you have already put your position in writing, is there anything you wish to briefly add?

MR BYDDER:   No, your Honour.  We are content to rely on our written submissions.

HIS HONOUR:   All right.  Thank you.  On or about 11 November 2024, the plaintiff, Rodney Norman Culleton, filed a writ of summons in this Court naming the State of Western Australia as a defendant.  On 6 January 2025, he filed a statement of claim.  In both of those documents, the plaintiff recounts that, on an unspecified date, he decided to travel from Western Australia to Canberra but, on his return journey, was prevented from re‑entering Western Australia by the Quarantine (Closing the Border) Directions (WA) – (the “Directions”) – made under the Emergency Management Act 2005 (the Act) because it is said they contravene s 92 of the Constitution.

In both documents, the plaintiff claims declaratory relief, including declarations that the directions and particular provisions of the Act are invalid, including sections 56 and 67.  Section 56 enables the relevant Minister to declare that a state of emergency exists in the whole or in any area or areas of the State.  Once such a state of emergency is declared, section 67 enables the making of directions that prohibit the movement of persons, animals and vehicles within, into, out of or around a designated emergency area or any part of the emergency area.

In Palmer v Western Australia (2021) 272 CLR 505, this Court answered questions posed in a special case to the effect that sections 56 and 67 of the Act, in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic, comply with the constitutional limitation of section 92 of the Constitution in respect of each of its limbs.

In his writ of summons, the plaintiff describes his case as a collateral attack in the sense it is a challenge on the validity of the decision in Palmer.  The documents he has filed make it clear that the plaintiff seeks to challenge central aspects of the reasoning in Palmer.  It is, however, otherwise unclear the extent to which the plaintiff seeks to raise additional bases for challenging the relevant provisions of the Act and the Directions, or additional grounds to those that were raised in Palmer. 

On or about 24 March 2025, the parties were notified that the matter would be listed before me today to consider whether to remit the proceedings to the Federal Court of Australia.  The defendant filed submissions supporting the remitter, but in the alternative submitted that the proceedings should be struck out.  The plaintiff opposed the remittal of the proceedings.

Section 44(1) of the Judiciary Act 1903 enables this Court of its own motion to remit “any matter other than a matter to which subsection (2) applies” which is pending before it to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties.

Even allowing for its various procedural difficulties, the proceeding commenced by the plaintiff involves a matter arising under the Constitution and does not involve a matter to which section 44(2) applies (see Judiciary Act, s 38(a), (b), (c) or (d)). By section 39B(1A) of the Judiciary Act, the original jurisdiction of the Federal Court includes any matter arising under the Constitution, or involving its interpretation.

Although in his submissions the plaintiff said that this Court had exclusive jurisdiction in respect of matters under the Constitution, that is clearly not so.  Of course, it is the final authority on that topic, but that is a different point.

The Federal Court clearly has jurisdiction over the subject matter and the parties of the proceedings commenced by the plaintiff.  Given that the Federal Court has previously dealt with the factual issues that arose in Palmer, I put aside the possibility of remitting the matter to the Supreme Court of any State and instead will address the question of remittal to the Federal Court.

In Ravenor Overseas Inc v Readhead (1978) 72 ALJR 671, at paragraph [5], Chief Justice Brennan observed:

The power of remitter contained in s 44 of the Judiciary Act 1903 (Cth) is designed to ensure that this Court is not diverted from its principal functions by the need to hear and determine matters in the original jurisdiction which could properly be brought in an Australian trial court.

That approach is imbued with practical considerations.  Thus, in Lee v Commonwealth (2012) 293 ALR 534 at paragraph 6, Chief Justice French observed that:

“Nor, I would add, should this court be diverted from its principal functions by the need to engage in intensive case management in order to ensure that a proceeding brought in this Court, and in respect of which it is sought to refer to a case stated to the Full Court, is in an appropriate form and brought on an appropriate basis to support such a referral.”

These observations have particular force in the present context where, on any view, the proceedings seek to revisit an earlier decision of this Court in relation to the same legislation and the Directions made under it, particularly where those provisions of it which impacted freedom of movement in and out of Western Australia are, as I understand it, no longer in effect.

Although I accept that the proceedings that have been commenced involve a matter, it is, at the present, doubtful that they identify a proper cause of action. I mean no disrespect to the plaintiff, but both the written summons and the statement of claim are drafted in the form of submissions and not pleadings. It is far from clear precisely what facts are relied on to support the relief claimed. In his oral submissions to me, the plaintiff submitted that there were no factual matters in dispute. However, a cursory review of the recent decisions of this Court concerning section 92 would reveal that often factual matters are critical. They were certainly important in Palmer.  Finally, it is far from apparent how, if at all, the case in substance differs from Palmer.

Consistent with the observations of Chief Justice French in Lee, it is clear that the proceedings require intensive case management before it can be determined whether there is a viable case suitable for determination by a court.  Embarking on that case management would mean that the risk adverted to by Chief Justice Brennan in Ravenor, of the Court being diverted from its principal functions, would materialise.

In his submissions, the plaintiff opposed the remittal of the proceedings to the Federal Court on the basis that that court cannot conclusively determine the constitutional issue and also it has no territorial jurisdiction.

I am not aware of any relevant limit on the Federal Court’s territorial jurisdiction.  Otherwise, the Federal Court can “conclusively determine” the constitutional questions in the sense that it can give a binding decision.  The fact that that decision is subject to the appellate process does not make Federal Court decisions any less binding.

In his oral submissions, the plaintiff sought to emphasise the importance of the case, his dissatisfaction with the interpretation of section 92 in Palmer, the fact – so it is said, and as I have referred to – that he considers there are no factual matters truly in dispute, and that otherwise remittal may somehow undermine this Court’s role as the final repository of power to determine issues arising under the Constitution.

I have no doubt of the potential importance of the case to the plaintiff and perhaps to others.  However, it needs to be reiterated that, as far as I can tell, the bulk of the case has already been determined by this Court and this appears to be an attempt to rerun that case.  To the extent that there is something truly different being raised or a true new argument, that is best done through a remittal and an isolation of those matters via the appellate process.

For the sake of completeness, I note two further matters.  First, I decline to embark on a consideration of the alternative submission raised by the defendant, namely whether to strike out the proceedings.  From my reading of the writ of summons and the statement of claim, I can see the possibility of a viable cause of action potentially emerging, although it might not.  It seems to me to embark upon a strike‑out would carry the risk of the diversion described by Chief Justice Brennan in Ravenor taking place.

Second, in his oral submissions, the plaintiff expressed a concern that remote hearings, including of this kind, may infringe upon the open court principle.  The importance of that principle can be obviously accepted and need not be reiterated.  I simply note that, even though this proceeding is taking place remotely, it is being broadcast to a courtroom of the High Court which is open to the public, and that otherwise the transcript of the hearing, including these reasons, will be publicly available.

Accordingly, I make the following orders:

1.The matter be remitted to the Perth Registry of the Federal Court of Australia.

2.The matter continue in the Federal Court of Australia, as if the steps in this Court were taken in the Federal Court of Australia.

3.The Registrar of this Court provide to the proper officer of the Federal Court of Australia copies of all documents filed in this Court.

4.The costs of the proceedings in this Court to date be costs in the Federal Court of Australia.

5.The costs in this Court, including the costs of any taking out of this order, be according to the scale applicable to proceedings in this Court, and thereafter to the scale applicable in the Federal Court of Australia and in the discretion of that court.

Thank you.

AT 12.10 AM THE MATTER WAS CONCLUDED