Cunliffe & Anor v The Commonwealth of Australia

[1993] HCATrans 83

!t 10

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IN THE HIGH COURT OF AUSTRALIA

Registry No C22 of 1992

B e t w e e n -

IAN GEORGE CUNLIFFE

First Plaintiff

IAN JOHN NICOL

Second Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions Hearing

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Cunliffe 1 23/3/93

AT SYDNEY ON TUESDAY, 23 MARCH 1993, AT 10.32 PM

Copyright in the High Court of Australia

MR S.J. GAGELER: If Your Honour pleases, I appear for the

plaintiffs in this matter.	(instructed by Blake
Dawson Waldron)

MR G. GRIFFITH, OC, Solicitor-General for the Commonwealth:

If Your Honour pleases, I appear with

MS L.E. GLASSON for the defendant. (instructed by

the Australian Government Solicitor)

MR GAGELER:  Your Honour will have seen the proposed case

stated.

HIS HONOUR:	Yes, I have.
MR GAGELER:	Your Honour, there is a measure of agreement as

to the case stated. The substantive area of

dispute between the parties in relation to its form
is that the Solicitor-General wishes to place

before the Court the second reading speech for the

amending Act and to have that before the Court as

evidence of the truth of the matters contained
within it. I, of course, have no objection to it
being used as an aid to construction. I do not

accept that the matters contained within it are

true and, in any event, those matters are not
raised in the pleadings as the case is presently

constituted. If the matters were to be raised, I

would want them to be raised properly, to be

particularized, and I would wish to have findings

of fact proved. That is the substantive area of

dispute.

There are, I think, two other minor matters:

one relates to the form of paragraph 3 of the case

stated document. If I could hand Your Honour an

amended document and Your Honour will see that

paragraph 3 in the amended document has been teased

out to express, in a more precise form, the

activities which the plaintiffs undertook in the

course of their work.

HIS HONOUR:	Yes, I see.
MR GAGELER:	The other matter - - -
HIS HONOUR:	Who has suggested this amendment to

paragraph 3?

MR GAGELER:	I have.
HIS HONOUR:	And is that acceptable to the Solicitor?
MR GAGELER:	I think it is not, but I think his sole ground

of objection is that subparagraph (c) goes beyond

what is stated in the statement of claim. If that

is the sole ground of objection, then I can amend

Cunliffe 2 23/3/93

the statement of claim. On one view it is implicit

in what is in the statement of claim in any event.

The other matter, Your Honour, which I

understand has been raised is the form of the

question. The Solicitor-General would want added,

at the end of the question these words - - -

HIS HONOUR: At the end of?

MR GAGELER:  At the end of the question, after the word

"invalid", "in its application to the plaintiffs".

I would oppose that form of question in that it

appears to be designed to pre-empt a reading down

or severance argument. My argument substantively will not be simply that these plaintiffs, because

they are lawyers, carry some area of

constitutional immunity with them; it will be that

primarily the scheme of the licensing regime is

disproportionate, therefore it is invalid as a

whole unless it can be read down in some way.

So, Your Honour, that is the ambit of the dispute

as I understand it.

HIS HONOUR:  Yes, all right. What do you say, Mr Solicitor?

MR GRIFFITH:  Your Honour, this problem about the second

reading speech is really, if I can put it, a

post-Peverill problem. Your Honour, it is not of

wide ambit. Perhaps if I can indicate the

substance of discussion. I understand my learned

friend and I express some common ground but the

main problem seems to be that the Minister in the

second reading speech said, "There have also been

concerns that serious complaints have been made

against some members of the legal profession

without its self-regulatory mechanisms responding

with adequate time~ness or vigour."

Your Honour, I wish to rely upon that statement as

indicating that the Minister, and through the

Minister the Government, were of that view.

I do not feel I have to go as far as

establishing, as a fact, that the legal

profession's self-regulatorx mechanisms did not

respond with adequate timeles-sness or vigour but I

understand from my learned friend, Your Honour,

that he would respond to the assertion that that

was the Minister's view as expressed in the second

reading speech by saying that that was

unreasonable. Now, we feel it would be unfortunate

for the matter to be remitted for a finding of

facts if that is basically the real area of dispute

between us. The rest of the second reading speech

would seem to fall within the ambit of describing

the mischief.

Cunliffe 3 23/3/93

HIS HONOUR:  Can I stop you there, Mr Solicitor, and

ascertain from Mr Gageler what his reaction is to

that more limited use of the second reading speech,

namely that you wish to use it in order to

evidence, as a fact, what the Government's view

was. What is your reaction to that, Mr Gageler?

passage that has been read represented the
Government's view. If it did represent the

MR GAGELER:  Your Honour, I would not accept that that

Government's view I would not accept that it was a

view that was reasonably based.

HIS HONOUR:  What is the relevance of the Government's view

anyhow in relation to the legal profession?

MR GAGELER: Perhaps that is a matter for the Solicitor-

General to address. He wants this evidence before

the Court. Certainly, if the question is one of

proportionality, one has to weigh the ends sought

to be achieved against the means that are chosen

and, to that extent, the Government's perception of

the evil at which the legislation is aimed may be

of some assistance to the defendant's case.

HIS HONOUR:	Very well. Yes, Mr Solicitor.
MR GRIFFITH:	We put it along those lines, Your Honour, but

given my learned friend's inability to agree with

that expression of the matter for the purpose of

the case, we would submit that it would still be

appropriate, if Your Honour were prepared to take that course, for the matter to go before the Full

Court on a question on the basis that if it is

crucial as to whether or not that view was

reasonable, it could be determined after the event.

HIS HONOUR:  Yes, that is, I must say, prima facie the view

I was inclined to take, Mr Solicitor, that the

matter could go before the Full Court on the

footing that the second reading speech is placed

before the Full Court, you ask the Court to treat

the second reading speech as establishing

positively that that was the Government's view.	No
doubt Mr Gageler will ask the Court not to take
that view, but if it becomes crucial, then it can
be dealt with at a later stage.

MR GRIFFITH: That would seem a convenient course,

Your Honour, than putting what, after today, will

be the former minister in the box and having a

preliminary dispute about that.

Your Honour, on the other issue, we are not

all that concerned with the pleading point.	In
fact, paragraph 3(b) goes beyond paragraph 4	of the
statement of claim as much as paragraph 3(c)	but,

Cunliffe 4 23/3/93

Your Honour, we are happy enough to have a case

stated in that form.

HIS HONOUR: That is including (b) and (c), and Mr Gageler,

in order to as it were ensure that the Court does

not become diverted with a lack of correspondence

between the stated case and the pleading, can amend

the statement of claim accordingly.	Do you need
leave to do that, Mr Gageler, or not?

MR GAGELER:	I think I do, Your Honour.
HIS HONOUR:	I will grant leave to amend the statement of claim, in the event that you do need leave, so as
to make it accord with paragraphs 3(b) and 3(c).
MR GRIFFITH:	Your Honour, as we are having an agreed

statement, perhaps if Your Honour could indicate

that it is not necessary for us to file an amended

defence. There would seem to be no reason to do

that.

HIS HONOUR:  No, it would not be necessary for you to file

an amended defence.

MR GRIFFITH:  On my learned friend's point about the

question, I was not aware until his submissions to

Your Honour as to the breadth of his submission

that it was asserted that the provision is invalid

in its entirety. My learned friend, if he is

putting it that way, is entitled to have the Court

consider it and we would suppose subsumed in that

is dealing with the lesser argument that the

plaintiffs show that for some reason it is of

invalid reach to them because they are admitted as

barristers and solicitors. So as long as it is on

that basis, Your Honour, of the greater chapeau, as

it were, including the minor one, we are content

for that.

HIS HONOUR:  Yes. Well, that disposes of the questions at

issue. There is no need for any reference to be

made in the case stated to the second reading

speech. That is a matter that can be dealt with at

the hearing. You can hand it up and then you can

ask the Court to treat it is as evidence of the

government's view.

MR GRIFFITH: If Your Honour pleases.

HIS HONOUR:  And the issue can be joined there. Yes,

Mr Gageler, you seem to be -

MR GAGELER:  Yes, Your Honour, I have some concerns about

that course in that the Solicitor-General read to

Your Honour one small passage from the end of the

speech. I would think that when it came to rely on

Cunliffe 23/3/93

the speech, he would be inclined to rely perhaps

more heavily on some of the passages at the
beginning of the speech which are in very wide and

sweeping terms about the level and nature of

complaints about persons giving immigration

assistance.

I am hampered to some extent by not knowing

precisely what use the Solicitor-General would wish

to make of the speech and the course that

Your Honour has suggested would leave it open, I

suppose, after the Court had reserved for the Court

to determine whether or not - - -

HIS HONOUR: It would?

MR GAGELER:  Yes. All I can say, Your Honour, is that there

would be other areas of dispute, potentially, that
would arise in relation to the facts that are

recounted in the second reading speech. So that it would not be necessarily as confined as Your Honour

may have thought.

HIS HONOUR:  What do you say about that, Mr Solicitor? I do

not want to reserve questions and have this case

set down for hearing if it transpires that at the

hearing before the Full Court a range of issues of

fact are opening up that may render the hearing

abortive.

MR GRIFFITH:  Your Honour, it should not be the case. It is

only a four-page second reading speech, generic point, not concerned with legal

practitioners as a separate sub-grouping, that

there has been an abuse and complaints in the area

of rendering of migration advice that has led the

government to regard as appropriate to have a

general universal scheme of regulation outside the

area of court proceedings and a legal practice

narrowly defined, which applies to everyone

including lawyers.

We would have thought, Your Honour, although

my learned friend can say we were referring to

these earlier matters, it is really all directed to

the mischief as seen by Parliament issue,

Your Honour. Just because of the Peverill case,
Your Honour, I am more conscious than I have been

in the past of wishing this material clearly to be

before the Court rather than, as we have
discovered, sufficiently before the Court on the

basis of the Court informing itself of the

background facts to which the Parliament had

regard.

Cunliffe 6 23/3/93

I do not think there is anything sinister

there at all, Your Honour, which will embarrass my

friend in putting his case. We are not at all

ulterior about it, Your Honour. It is very close

to saying, "This is the mischief as Parliament saw

it", and the sentence I referred to is one just

indicating, Your Honour, that was one reason why it

remained universal.	I do not think I put it any
higher than that.

HIS HONOUR:  Now, this case has not yet been given a

tentative date, has it?

MR GRIFFITH:  Your Honour, there was a date in June

mentioned as a possibility.

HIS HONOUR:  I see. But I do think this is a case in which

comprehensive written submissions ought to be filed

by the plaintiff and the defendant, and I was going

to say that if a time frame is worked out

sufficiently in advance of the hearing before the

Full Court, if the risk which Mr Gageler sees as a

potential risk is realized, then it ought to be

identified on the exchange of written submissions.

MR GRIFFITH:	We are happy for that, Your Honour.
HIS HONOUR:	Yes. Well now, how soon can you file

comprehensive written submissions, Mr Gageler?

MR GAGELER:  I would ask for three weeks, Your Honour, at

least. Four weeks, if Your Honour was minded to

give me that.

HIS HONOUR:  We ought to be able to do that; after all, June

is a fair way off. Well, if I say four weeks -

plaintiff to file and serve comprehensive written

submissions within four weeks of today's date.

MR GAGELER:	Yes.
HIS HONOUR:	Mr Solicitor.
MR GRIFFITH:	Your Honour, three weeks would be enough for

us.

HIS HONOUR: After that?

MR GRIFFITH: Yes, Your Honour.

HIS HONOUR:  And for the defendant to file and serve written

submissions within seven weeks of today's date.

MR GRIFFITH: If Your Honour pleases.

Cunliffe	23/3/93
HIS HONOUR: That would give you sufficient time,

Mr Gageler, then to determine whether there is a

problem.

MR GAGELER:	Yes.
MR GRIFFITH:	Your Honour, perhaps I could assist further to

indicate if it looked like, on seeing the

plaintiffs' submissions, Your Honour, that we were

going to put this material any more highly than I

have expressed, I would tell my learned friend

informally before we filed them anyway.

HIS HONOUR:	If· you could do that, and if the two of you would bear in mind that if there is likely to be
any problem, you might notify the Registrar so that
the Court could make alternative arrangements for another case.
MR GRIFFITH:	Of course we would do that, Your Honour, yes.
HIS HONOUR:	What is the estimate time of hearing of the

case?

MR GRIFFITH:  I would have thought it is a one-day case,

Your Honour.

HIS HONOUR:	You would agree with that, would you not?
MR GAGELER:	Yes, certainly, that would be my estimate.
HIS HONOUR:	Now, otherwise, Mr Solicitor, you are happy

with the form of the draft stated case. You have explained that you do not want the amendment that you suggested in the last line of the questions?

MR GRIFFITH: In the circumstances, no, Your Honour.

HIS HONOUR: All right. In those circumstances, I am

prepared to state a case in the form that has been

put forward by counsel for the plaintiffs and I

give leave, as indicated earlier, to the plaintiffs

to amend their statement of claim. There will be

no occasion for the defendant to amend its

statement of defence. I direct that the plaintiffs

file and serve comprehensive written submissions

within four weeks of today's date; and, likewise, I

direct that the defendant file and serve

comprehensive written submissions within seven

weeks of today's date. Costs of this application

will be costs in the stated case.

Do you want - I do not know about you,

Mr Solicitor.

MR GRIFFITH:  Your Honour, I am not much good but I am

cheap.

Cunliffe 23/3/93

HIS HONOUR: That is what I thought.

MR GRIFFITH: So, I do not need a certificate.

HIS HONOUR:	You do not need a certificate?
MR GRIFFITH:	No, Your Honour.

HIS HONOUR: All right. Well, I will not trouble about a

certificate.

AT 10.50 AM THE MATTER WAS ADJOURNED SINE DIE

Cunliffe 9 23/3/93