D'Arcy v Officers Still

[1995] HCATrans 74

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S172 of 1994

B e t w e e n -

MARGARET  D’ARCY

Applicant

and

OFFICERS STILL, REEVES, FRASER, GOVERNMENT AND RELATED EMPLOYEES APPEAL TRIBUNAL and THE DIRECTOR GENERAL, NSW DEPARTMENT OF SCHOOL EDUCATION

Respondents

Application for orders pursuant to O.32, O.33 and O.38 of the High Court Rules

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 6 APRIL 1995, AT 10.16 AM

Copyright in the High Court of Australia

MS M.K. D’ARCY:   Your Honour, I appear for myself.

MS D.R. McONIE:   Your Honour, I appear for the second respondent.  (of the Crown Solicitor’s Office)

McHUGH J:   Thank you.  Yes, Ms D’Arcy, this is your summons.

MS D’ARCY:   Yes, your Honour.

McHUGH J:   What is it that you seek in these proceedings?

MS D’ARCY:   Your Honour, I seek firstly the admission of extra evidence; secondly, court experts to settle the question of disputed documentation; thirdly, court experts to determine the effects on students of events described in various documents in the proceedings; fourthly, the sealing of writs of subpoena duces tecum to various persons, and fifthly, an order for discovery directed to the Director-General in relation to the qualifications of personnel which was requested.

McHUGH J:   Right, now I have read your material, all the material that you have filed in support of this summons, and there are procedural difficulties which appear to me impossible to overcome.  The first of those is that this Court held in Collins’ Case 133 CLR, and in Coulton 164 CLR, that an application for special leave to appeal is not in the ordinary course of litigation.  It is, in effect, an application to commence proceedings in the Court and those rules which deal with discovery, with court experts and the admission of facts have no application to an application for special leave to appeal.  Collins’ Case holds that an applicant for special leave to appeal is not a party to a proceeding in the Court within the meaning of section 78 of the Judiciary Act and that it follows from that that you are not a party for the purposes of Order 32, 33 or 38, and they are orders upon which you rely in this particular case.

Can I explain this to you.  In relation to the first order that you seek, that certain affidavits be admitted as evidence, all evidence that the lower court, the Court of Appeal considered can, in so far as it is relevant to the special leave application, be considered by the Court and if it is in the application book it will be considered.  If it is not in the application book and you are of the view that there should be some evidence that the lower court heard, then you can take some steps about it.  You can apply to the Court at the hearing or, more properly, you should take out a summons.  But you have to bear in mind that it is only the material that was before the lower court that will be entertained on any view on a special leave application.

Order 33 rule 2, on which you rely in respect of order 1, is dealing with a question of admission of facts and it really has nothing to do with a special leave application.  It, as its terms indicate, is directed to actions and this is not an action.  It is not a trial; it is an application for special leave to appeal. 

Perhaps I should also let you know that this Court does not hear fresh evidence in relation to appeals.  It was held in Mickelberg’s Case 167 CLR, that the High Court has no power to consider fresh evidence.

Again, with the order you seek under order 2 in relation to the court expert, one has to be a party to get such an order and the terms of that order make it plain that it is directed to an action to be tried, and an application for special leave is not an application to be tried.  The same with your orders 4 and 5 that you seek, your orders for subpoenas and discovery.  Now, if you are successful in your application for special leave to appeal, you may then make an application.  So far as I have been able to study the material, I would think your prospects of getting any of the orders are zero, but certainly at this stage there is just no jurisdiction in the Court to make any of the orders that you seek.  Even if there was, having regard to my examination of the material, I would not make any of the orders that you seek.

Now, I have put those matters before you.  To me they seem very clear, but if there is anything that you want to put in opposition to it, I will hear you on it, but I think I have explained the problems to you that you have at this stage and I will now leave it to you, if there are any arguments that you want to put to me.  But you have got to understand it is a question of power and jurisdiction and at the moment you are not a party to any litigation in this Court; you are seeking, in effect, the right to commence proceedings in this Court.

MS D’ARCY:   Yes, your Honour, I understand that.  My main concern, if I might just mention that, when I took out the summons was that the Court’s time was actually being wasted if there was a question of the authenticity of documents which commenced a proceeding.  In that case it seemed to me to be a waste of time to proceed with proceedings until the authenticity of ‑ ‑ ‑

McHUGH J:   Your application for special leave raises, in particular, the question of the power of the tribunal to make the orders - I cannot remember if it was 3 and 4 or 4 and 5, but you know what the two main orders were, the orders that you attend for medical examination and that the department arrange a medical examination.  I would think, myself, they are the real basis of your application for special leave to appeal.  Speaking for myself, I would not think that there was any substance in you Wednesbury point, but it is the attack you make on the power of the tribunal in respect of those orders 3 and 4, I imagine, will be the real ground of your special leave application.  They do not seem to me to go to the question of evidence.  I mean, the tribunal has either got the jurisdiction to make those orders or it has not.  It is really a question of statutory construction.  But I am sorry, I interrupted you.

MS D’ARCY:   No, that is fine.  That, in fact, was my main problem.  The other main difficulty was the threat to national security, as in the HSC and several other questions which have arisen and, your Honour, I actually made up an additional affidavit because it occurred to me when I was doing the written summary of argument that there were some statements on that that I actually have not put on an affidavit before.  May I hand that up in Court?

McHUGH J:   Certainly, Ms D’Arcy.

MS D’ARCY:   It deals, in fact, mainly with the threat to national security dating back to my employment with the Commonwealth Public Service, in fact right back to the time of my first appointment to the public service when I left school, because I was appointed to a secure establishment and it also deals with similar facts in that a report was apparently written, in that there is a copy of it in existence, a medical report of an assessment on 27 March 1973, when there was no such assessment.  This is a similar fact to the construction of the Gapper report, after the great tribunal orders, because I did not attend that assessment either.  So that is - should I read ‑ ‑ ‑

McHUGH J:   No, I can read it for myself, but I must say I have got down to paragraph 34 and it does not seem to me that it affects any issue that is involved in your special leave application.  Could I just say to you litigation is expensive and steps in litigation cost money - I do not know what means you have.  I notice that you are unemployed and it always concerns me when litigants appear for themselves, that they run up costs orders - when I say they run up costs order, they take proceedings which results in costs orders being brought against them, and one day or another those costs orders have to be met.  So I would ask you to seriously consider every step that you take in relation to litigation because costs orders mount up and lawyer’s fees are very expensive.  You have brought a summons here today and I really do not have any power to make the orders that you seek and it concerns me that you have brought it.  I do not know whether there will be an application for costs from the other side but, I am sorry ‑ ‑ ‑

MS D’ARCY:   May I just say that I do consider it very carefully, but I have only been reading law for 12 months, I have had no training, but I do my best, though.

McHUGH J:   I understand.

MS D’ARCY:   I do know it is expensive.

McHUGH J:   I really have no alternative but to dismiss this particular summons, Ms D’Arcy.  Ms McOnie, I hope you are not asking for costs.

MS McONIE:   No, I will not ask for costs, your Honour.

McHUGH J:   Do you prefer to be called Miss or Ms?

MS D’ARCY:   I really have no preference, your Honour.

McHUGH J:   Ms D’Arcy, the order I will make is that the summons be dismissed and there shall be no order as to costs.  You will proceed with your special leave application in the ordinary course of events.  Thank you very much for your assistance.  Thank you, Ms McOnie.

Adjourn the Court.

AT 10.30 AM THE MATTER WAS CONCLUDED