Dagi, Shackles, Ambetu, Maun v At-G for Vic

[1996] HCATrans 5

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 7873

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M1-M4 of 1996

BETWEEN:DAGI & ORS

Plaintiffs

- and -

THE ATTORNEY-GENERAL FOR

THE STATE OF VICTORIA & ANOR

Defendants

SHACKLES & ANOR

Plaintiffs

- and -

THE ATTORNEY-GENERAL FOR

THE STATE OF VICTORIA & ANOR

Defendants

AMBETU & ORS

Plaintiffs

- and -

THE ATTORNEY-GENERAL FOR

THE STATE OF VICTORIA &

ANOR

Defendants

MAUN & ORS

Plaintiffs

- and -

THE ATTORNEY-GENERAL FOR

THE STATE OF VICTORIA &

ANOR

Defendants

DAWSON J (In Chambers)

AT MELBOURNE, THURSDAY THE 1ST DAY OF FEBRUARY 1996

MR J. BEACH:   If your Honour pleases, I appear for the applicants in each of those matters.

HIS HONOUR:   Yes, Mr Beach.

MR D. GRAHAM QC (Solicitor General):   If your Honour pleases, I appear with my learned friend MR P.J. HANKS for the Attorney General who I think is the first respondent to each of those proceedings.

HIS HONOUR:   Yes, Mr Solicitor.

MR R.A. FINKELSTEIN QC:  May it please your Honour, I appear with my learned friend MR C.M. SCERRI for the Broken Hill Company in each application.

MR BEACH:   Your Honour will appreciate from the court's papers that the application is essentially an application seeking expedition of the applications for special leave to appeal filed in each of the four proceedings.  As your Honour will appreciate, the applications made by summons dated 30 January of this year and as supported by an affidavit of Nicholas Styant-Browne sworn on 29 January of this year - I should say that affidavit has been sworn and filed in the Dagi proceedings only and leave is sought to rely upon that affidavit, not only in the Dagi proceeding but also in the other three proceedings.

HIS HONOUR:   There is no objection to that I take it?

MR BEACH:   I do not understand there is, your Honour.

HIS HONOUR:   Very well.

MR BEACH:   Your Honour, the position is that expedition is sought in relation to the applications for special leave to appeal on essentially three bases.  The first basis being the significance of the point of law involved which is whether or not section 46 of the Public Prosecutions Act (1994) on its true construction prevents a private litigant from applying to the Supreme Court of Victoria or any other Victorian court seeking to punish a person for contempt and ‑ ‑ ‑ 

HIS HONOUR:   Well, why would that be a reason for expedition?

MR BEACH:   Your Honour, the position is that the point has significance, not only in relation to the applications made by the current litigants but it has significance for every other litigant in Victoria, whether that ‑ ‑ ‑ 

HIS HONOUR:   I am not aware of, in recent years, of a flood of applications by private litigants in relation to contempt proceedings.

MR BEACH:   No, save and except of course in relation to the perhaps enforcement of court orders and undertakings and that sort of thing.  But generally, your Honour, the point does have significance in relation to the Supreme Court's powers to protect its own processes and also the powers exercised by inferior courts, the Magistrate's Court and the County Court in relation to ‑ ‑ ‑ 

HIS HONOUR:   Well it may have significance but that is no reason why it should not be determined in due course.  Or, to put it another way, that is no reason why the case should be given precedence over others.

MR BEACH:   Your Honour, it is fair to say that all litigants in the Supreme Court are, when approaching the Court of Appeal to seek to have the matter expedited for hearing by the Court of Appeal, all thought that it was appropriate that expedition be given to the hearing of the appeals and also Phillips and Tadgell JJ on an application made by BHP seeking expedition of the appeals and the matter pronounced that in their view the point was of such significance, not only for the litigants in the present cases but also for all other litigants and of such significance to the Supreme Court that expedition of the appeal before the Court of Appeal should be given.

And in fact that was what took place.  A Notice of Appeal was filed in the Court of Appeal in each of the four proceedings and the appeal was heard approximately one month after the filing of the Notice of Appeal.  And indeed Tadgell J, when dealing with the matter - and this appears in Mr Styant Browne's affidavit on page four, top of the page where he has extracted what Tadgell J said on 29 September 1995, sets out the reasons why the Court of Appeal thought it of such significance to expedite the appeals.  And if I can just read from the top of page four which sets out the relevant extract from His Honour's determination.  He said:

The question whether the plaintiffs are competent to bring proceedings against BHP for contempt is by itself one of considerable importance.  It is obviously of importance to the parties.  But it is, I think, no less obviously of public importance.  The question of the extent of the jurisdiction of the Supreme Court to deal with contempt of that court or contempt of any other court within the jurisdiction of Victoria is one that needs only to be stated to demonstrate its own peculiar significance.

HIS HONOUR:   Well, I am not sure that I appreciate that.

MR BEACH:   No.

HIS HONOUR:   What we are dealing with is not the capacity of the court to deal with contempt but whether contempt proceedings can be initiated by a private citizen.

MR BEACH:   Yes, well it is fair to ‑ ‑ ‑ 

HIS HONOUR:   That does not seem to me to be something that calls for expedition.

MR BEACH:   It would depend ‑ ‑ ‑ 

HIS HONOUR:   Not as if the Supreme Court were deprived of power to deal with contempt altogether.

MR BEACH:   No, no.  It was certainly not deprived of its power to deal with contempt of its own motion.  Although President Winneke said, in his judgment, being one of the five judges in the Court of Appeal; he said:

That the court's power to protect its own processes, of its own motion, was quite uncertain.

There might be actions that might come within the cognisance of the court where the court might, quite appropriately, be able to act of its own motion.  That is contempt in the face of the court, but in contempt cases of this type where the alleged acts of contempt take place, say, in another jurisdiction, the court does not really have the cognisance of such matters and the court's powers to protect its own processes by bringing proceedings of its own motion in such a case is quite doubtful and quite questionable.  I do not know whether your Honour has a copy ‑ ‑ ‑ 

HIS HONOUR:   But what is not questionable is in the ordinary case of the court wanting to act of its own motion.  When I say, the ordinary case, a case which does not involve another jurisdiction ‑ ‑ ‑ 

MR BEACH:   Yes.

HIS HONOUR:   ‑ ‑ ‑ the jurisdiction of the court is preserved.  There is no question about that.

MR BEACH:   Yes.  Although, it again becomes a question perhaps of whether the acts alleged constitute the contempt are done in the face of the court which might be an ordinary case.  That would be one case.  But where the acts are not done in the face of the court, perhaps in another place in Victoria, that would be another type of case and certainly two of the five justices of appeal discussed the point and said that the powers given to the court to protect its own processes of its own motion might be quite uncertain and the exercise, in a case where actions take place outside the court's cognisance, might not be able to be dealt with by the court of its own motion. 
HIS HONOUR:   Very well, you have made that point.

MR BEACH:   Yes.  Phillips J, when dealing with the application seeking expedition, also thought that it was a matter of such significance that expedition ought to be granted and his pronouncement on that particular issue appears as one of the exhibits to Mr Styant-Browne's affidavits.  That is exhibit NSB2 and in particular at the bottom of page 7 of the transcript of the proceedings in the Court of Appeal.  His Honour said, at about the fifth last line on page 7 of the transcript.  He says:

But having said that, I agree that ultimately the questions raised being of such public importance, the appeals ought to be expedited on that ground, although plainly we do not today resolve any question of standing of the Attorney General on appeal.

Now, that is the views of the Court of Appeal that were asked to deal with the matter in terms of expedition.  There are other very important public interest points raised by the application for special leave and they involve the interpretation and application of section 85 of the Victorian Constitution Act of 1975.  As your Honour will recall, section 85 of that Act contains the manner and form provisions which determine the manner in which - in particular in this case - the Supreme Court's jurisdiction can be altered or varied or its powers altered or varied.

HIS HONOUR:   Well, that cannot be a question of great urgency can it?

MR BEACH:   Well, it has application, your Honour, not only in relation to section 46 of the Public Prosecutions Act but also the whole raft of other Victorian State Acts that purport to vary or alter the jurisdiction of the Supreme Court or to vary or alter its powers.  So the sooner the issues concerning section 85 of the Constitution Act are determined that would be of benefit, not only in relation to the present section 46 which is the subject of this application for special leave, but also it would be of importance to resolve it in relation to a large number of Victorian Acts.  Now, I cannot state the points more highly than that, your Honour.  But there are two other points that we would make in relation to the question of expedition.  As your Honour will appreciate from the affidavit of Nicholas Styant-Browne, he sets out a chronology of the events in these proceedings.   Essentially, your Honour, Cummins J, at first instance, found ‑ ‑ ‑ 

HIS HONOUR:   Well, I have read that, Mr Beach.

MR BEACH:   Yes.  The point about it, your Honour, is simply that the applicants cannot do anything in terms of seeking to punish BHP or to procure that BHP be the subject of a penalty.  We cannot do it of our own motion because of what the Court of Appeal has said.  The Attorney General, at the moment, is refusing to do anything about the matter until this application for special leave is heard and determined.  So the applicants are in a cleft stick.  They cannot do anything and they cannot get the Attorney General to do anything as contemplated by Section 46 of the Act until such time as this application for special leave is dealt with.  Now, that is only to the advantage of BHP.  It is not of advantage to any other person and it is certainly not advantageous to the administration of criminal justice. 

The third matter, which is related to the second matter, your Honour, is simply that - as your Honour will appreciate from the affidavit of Mr Styant-Browne - there have been other alleged activities and conduct of BHP that the applicants seeks to stop in relation to hindering the plaintiff's - the applicant's from communicating with their legal advisers.  Now, we cannot do anything about that matter at the moment because of what the court of appeal has said and the Attorney General has not done anything about that matter either, presumably for the same reason.  But until this question of the validity and construction of section 46 of the Act is resolved it is inappropriate to deal with the matter.  And it is a further basis, your Honour, upon which I would seek to have each of the applications expedited.

[10.56am]

HIS HONOUR:   But if I were minded to expedite the matter, is there any reason why I should not direct that it should be listed for hearing?  That is, the application for special leave, on Monday?

MR BEACH:   Your Honour, I would seek that.  Can I just deal with a few housekeeping matters?

HIS HONOUR:   Well, you would have to put your running shoes on ‑ ‑ ‑ 

MR BEACH:   Yes. 

HIS HONOUR:   ‑ ‑ ‑ to get the documentation into order.

MR BEACH: I have been instructed that we could have application books completed by the close of business tomorrow. Certainly, submissions from the applicants could be filed and served mid morning tomorrow perhaps. The other aspect about the matter is - and your Honour will appreciate this from the material - we have raised several constitutional issues which we say arise under the Commonwealth Constitution but in fairness were not put below. Now, we gave section 78B notices to the various Attorneys General yesterday but if the applications for special leave were to be dealt with on Monday, in my submission, that would be sufficient time for any other ‑ ‑ ‑

HIS HONOUR:   Attorneys General or more particularly probably Solicitors General ‑ ‑ ‑ 

MR BEACH:   Yes.

HIS HONOUR:   ‑ ‑ ‑ are accustomed to act very quickly in these matters.

MR BEACH:   Yes.  And, in any event, they will get another bite of the cherry if special leave is granted if they want to ‑ ‑ ‑ 

HIS HONOUR:   And the point is a simple one.  After all - well, when I say that, for the purposes of the special leave application it is a simple point.

MR BEACH:   Yes.

HIS HONOUR:   Or a clear point anyway.

MR BEACH:   Yes.  Well, your Honour, we would certainly seek that.  I have been advised, your Honour, that if that date was not available, that there are sittings of the court in Canberra, I think, for two weeks beginning on 5 March.

HIS HONOUR:   Well, I do not know what other matters are or what the urgency attaching to them is.  The most I can do, if I did not make a direction in the terms I have indicated, would be to say that the matter be given expedition and be included in a list to be heard on the next possible hearing date.  That means it would be up to others to decide the order in which case it should be heard.

MR BEACH:   Yes, thank you, your Honour.

HIS HONOUR:   Now, who goes next?  Mr Solicitor?

MR GRAHAM:   I think I do, your Honour.  I should state at the outset that we would resist a listing on Monday.  Your Honour, we do not believe, because of the introduction of four new points into this case and the affect that the introduction of those four new points might have on the question of whether special leave should be granted can be properly dealt with between now and Monday morning in preparation for a special leave application.

HIS HONOUR:   I think you underestimate your abilities and ingenuity, Mr Solicitor.

MR GRAHAM:   Well, your Honour, I am prepared to concede that on this occasion the thought is somewhat more daunting than usual.  But the fact is that ‑ ‑ ‑ 

HIS HONOUR:   But you have argued this matter before.

MR GRAHAM:   That part does not ‑ ‑ ‑ 

HIS HONOUR:   ...(indistinct)... some additional points but they do not - I make no comment about that but they seem to me that they were perfectly well within the competence of people to grasp and argue, particularly on an application for special leave - within the next three or four days.

MR GRAHAM: I only say this: If the case was in the condition that it left the Court of Appeal, I would have no trouble with the prospect of preparing between now and Monday. I am concerned by the fact that there is a ground of appeal in the draft legislative appeal which raises a new point under the Commonwealth Constitution and a section 78B notice foreshadows three more. And those points and the question whether they should be ventilated and their possible impact on the court's discretion to grant special leave would be a matter that would have to be addressed quite carefully. I only became aware of those additional three points at some stage yesterday and I simply have not turned my mind to them.

We would say, your Honour, that whilst fairly generous time has been allowed under the rules for the exchange of summaries of argument, we do not say that all that time is necessary but we would urge that we should be entitled to at least some time to prepare our opposition to the application.  As matters stand, we would be having, I think it is one working day, plus the weekend of course.  And so we would say that in fairness to us we would doubt that we could be prepared properly come Monday.   It is possible perhaps but we just have serious doubts.

HIS HONOUR:   You do not - otherwise than making those submissions - you do not seek to dispute the urgency of the matter?

MR GRAHAM:   We see that certainly, your Honour, it is desirable that these points be decided.  We seek some - we do not see that it is necessary to have them - the special leave matter - dealt with in February rather than early in March.  And we certainly do not resist an application for an order that would result in the application being dealt with much earlier than be the case if it took its place in what I would expect be the April sittings.  So we would certainly not resist the sort of direction your Honour suggested, the earliest possible date.  But we are very troubled by the notion of being properly prepared by Monday.

I think I should add this, your Honour:  There is a problem which attends to my learned friend's application.  He comes to the court today, having applied on 29 January to lodge the application between 9 January.  We are troubled by the fact that the notice of application for special leave was only served on the 21st day after the Court of Appeals judgment, so that there is a doubt in our mind about what is going on.  We received this application at the very last moment and indeed some of the papers were not served until after the expiration of the time limits.  So that it is difficult for the applicant to maintain a position of extreme urgency in the case of his own conduct.

HIS HONOUR:   If there is an element of urgency, it so happens that there is available time to hear the application on Monday.  But other than that, it is impossible to say whether - despite a direction such as the one I indicated be given - it is impossible to say when the matter could come on.  Because, as you appreciate, there are a number of other matters that would be classed as being urgent before the court.  So that it is really that opportunity or - I might rephrase that.  Either that opportunity is taken or else there may only be a direction which is not particularly effective.

MR GRAHAM:   I do not believe I can add to what I have said but we are -would be deeply troubled if we were put into the position of trying to prepare this case, which is a difficult case, or has become more difficult, in the time that would be available if it were listed for Monday.  If the court pleases.

HIS HONOUR:   Mr Finkelstein.

MR FINKELSTEIN:   If it please the court, we adopt the submissions of the learned Solicitor General.  I know that the point that I am about to raise is substantially irrelevant but I raise it in any event.  For our part, it would certainly assist if a leave application, if it were to be brought forward, that is, to be given expedition, came on at any time after the full bench heard and determined the Kruger case which commences on 12 February - 12 or 13th, whatever the Monday is.  Although the learned Solicitor did say that so far as the State of Victoria is concerned they see the issue as important - and that is clear enough I suppose, that it has a degree of importance - our principal submissions are first that the case is not one which warrants expedition.  That is, there is nothing so special about the case that warrants it being given priority ahead of other cases in the list. 

Secondly, that we would feel ourselves disadvantaged or at least counsel personally might feel disadvantaged if the matter was brought on on Monday because of other commitments, although in truth I should tell your Honour that I do have a leave application that will be dealt with by the court on Monday in any event.

HIS HONOUR:   Well, you will be there in any event, yes.
`
MR FINKELSTEIN:   All I was going to say, your Honour, was that it is going to make it a lot harder than it otherwise would be.

HIS HONOUR:   But you are familiar with the argument.  Were you in the proceedings below?

MR FINKELSTEIN:   Yes, I was.

HIS HONOUR:   And obviously the main point is the point which was dealt with below.  I know that other points have been raised but ‑ ‑ ‑ 

MR FINKELSTEIN:   I do not have any difficulty dealing with the main point.  I have not turned my mind at all to the additional grounds that are set out in the notice that went to the Attorneys.

HIS HONOUR:   And were the constitutional issues argued before the full court?

MR FINKELSTEIN:   No, they were not.

HIS HONOUR:   Well, it is hardly likely - perhaps I should not say anything about that but it is obvious, is it not, that the main point is the point that was dealt with.  And either that warrants special leave or it does not.

MR FINKELSTEIN:   Yes.  Thank you, your Honour.

HIS HONOUR:   Mr Beach.

MR BEACH:   Your Honour, just three points.  First, I know nothing about the critical case that my learned friend on my left referred to but ‑ ‑ ‑ 

HIS HONOUR:   It is a case in which your learned friend is involved which, I gather he was telling me, necessitates a lot of work on his part.

MR BEACH:   Well, it sounds very complex and if it sounds very complex no doubt the court is going to take some time to determine that issue.  And we do not want to wait until the never never to have the applications.

HIS HONOUR:   No, he is only suggesting until after the hearing date I think.

MR BEACH:   And determination I think he almost said.  I might have misheard him.  I wrote "heard and determined" but ‑ ‑ ‑ 

HIS HONOUR:   I do not think so.  That is not - no.

MR BEACH:   The second point, your Honour, is that in relation to the delay, the Court of Appeal's judgment was handed down on 15 December from recollection.  The vacation intervened and the only excuse we have for the few days lateness is the unavailability of counsel, which is not a terribly good point at the best of times.  And the final point, your Honour, is that the special leave application will only deal with the points to suit whether they are sufficiently arguable or meritorious enough for the grant of special leave.  They do not need to be fully argued and in my submission there is adequate time between now and Monday for my learned friends to come to grips with all issues.

HIS HONOUR:   Now, what about housekeeping matters?  What rules have to be complied with?

MR BEACH:   Well, your Honour, there is a rule that we would normally file written submissions within ten days and the respondents would file theirs within five days.  Those rules would have to be abridged and they appear in order 69A, rule 8.  We could provide a summary of argument by 11.30 tomorrow morning and if the respondents could provide their summaries of argument by the close of business that should give the court the opportunity over the weekend to peruse the summaries.  So far as the application books are concerned, I was informed this morning that the Deputy Registrar in Melbourne has settled an index of the proposed contents of the application books. 

The proposed contents, as I understand it, will be no more, essentially, than the judgments of Cummins J and the Court of Appeal below.  So given that to be the case, I have been advised that application books could be prepared and filed by late tomorrow afternoon.  Now, essentially, your Honour, as I appreciate the rules, those seem to be the only two matters of housekeeping which would need to be dealt with.

HIS HONOUR:   Very well.  Well, I propose to make an order directing that the matter be placed in the list for hearing on Monday and the consequential orders which I should make are that ‑ ‑ ‑ 

MR GRAHAM:   I wonder if I might intervene, your Honour, as to the directions?  I do not think - it may be that it would be appropriate in this case for the respondents to have - at least so far as the delivery of submissions to the appellant is concerned and the applicant is concerned - until a date - time during the weekend?

HIS HONOUR:   Yes, I had ‑ ‑ ‑ 

MR GRAHAM:   We seem to be being offered five hours of working day to prepare our ‑ ‑ ‑ 

HIS HONOUR:   I was going to suggest that - that is your summary of argument ‑ ‑ ‑ 

MR GRAHAM:   Yes.

HIS HONOUR:   ‑ ‑ ‑ be provided not later than 9 am on Monday.

MR GRAHAM:   That would be of assistance, your Honour.  I mean, we are troubled by the fact that this application, having been made, we have not got a summary of argument now because there was ample opportunity to ‑ ‑ ‑ 

HIS HONOUR:   I am sorry.  That would mean that your weekend may be occupied in a manner which you had not contemplated but it will give you that time.

MR GRAHAM:   Yes.  If your Honour pleases.

HIS HONOUR:   So I direct that the matter be placed in the list to be heard on Monday.  I direct that the application books be filed and served by when, Mr Beach?

MR BEACH:   Perhaps 5 o'clock tomorrow, your Honour.

HIS HONOUR:   By 5 pm on 2 February and that the applicant's summary of argument?

MR BEACH:   Your Honour, could I have until lunchtime tomorrow, say 1 o'clock tomorrow.

HIS HONOUR:   Be filed and served by 1 pm.  Well that is - prior to the application books being filed and served?

MR BEACH:   Yes.

HIS HONOUR:   Does that cause any problems?

MR BEACH:   What perhaps could be done over the weekend is to cross-reference it to the application book so that at least the court has something to read over the weekend if they need it and we can then provide the cross referencing to the application books on Monday morning.  If that is satisfactory.

HIS HONOUR:   But there is no problem about having the summary of argument served before the application books?  Not in this case is there?

MR BEACH:   No, I do not think so, your Honour.  It is only the judgments that are being referred to.

HIS HONOUR:   Very well.  That the applicant's summary of argument be filed and served by 1 pm on 2 February and that the respondent's summary of argument be filed and served by 9 am on Monday 5 February.  Now, what about the 78B notices?  Will you undertake to inform those upon whom the notices were served when the hearing is going to take place?

MR BEACH:   Yes, we will do that your Honour. 

HIS HONOUR:   Very well ‑ ‑ ‑ 

MR BEACH:   Sorry, your Honour, I was going to mention the issue of costs.  I am not sure what BHPs position was.  They seemed to be opposing the application for expedition given the affidavit material that they filed.

HIS HONOUR:   I will reserve costs and certify

MR BEACH:   If your Honour pleases.  Thank you, your Honour.

HIS HONOUR:   So I will make those directions.  You give the undertaking to inform those on whom the section 78B notice were served.  I reserve costs and certify.

MR BEACH:   Thank you, your Honour.

AT 11.11 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 5 FEBRUARY 1996