Dai v Telecommunications Industry Ombusman

[2001] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S147 of 2000

B e t w e e n -

DAI RONG-HUA

Applicant

and

TELECOMMUNICATIONS INDUSTRY OMBUDSMAN

First Respondent

RSL COM PERSONAL COMMUNICATIONS AUSTRALIA LTD

Second Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MAY 2001, AT 12.25 PM

Copyright in the High Court of Australia

MR R. DAI appeared in person.

MR W.A.S. KEANE:   If it please the Court, I appear for the first respondent.  (of Corrs Chambers Westgarth)

GAUDRON J:   I have a certificate from the Deputy Registrar who certifies that she has been informed by the solicitor for the second respondent that the second respondent does not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.  Yes, Mr Dai.

MR DAI:   Your Honours, this application is a special leave to appeal from the judgment of the Full Court of the Federal Court given on 6 June 2000.  While that judgment dismissed the appeal on the ground of objection to competency and imposed the leave to appeal, it is logically impossible that an appeal that is competent should be dismissed and, by nature, the imposition of leave to appeal protects proven crimes.

In this application there are two respondents, Telecommunications Industry Ombudsman as the first respondent, and RSL Com Personal Communications as the second.  As your Honour just mentioned, the second respondent, that is RSL Com Personal Communications, has chosen to abandon its participation in the proceedings before the High Court after having admitted its liability in the proceedings before the Full Court of the Federal Court.  Under the ‑ ‑ ‑

GAUDRON J:   I am sorry.  I do not understand that – having admitted its liabilities.

MR DAI:   Liabilities, yes.  Under the circumstances the applicant has asked on a number of occasions, and asks today, the Court to consider this position by the second respondent.

GAUDRON J:   To consider the what?

MR DAI:   I have asked the Court on several occasions to consider the second respondent’s position of admitting its liabilities at some stages in the proceedings, and I am asking today as well, your Honour.

GAUDRON J:   Well, what do you mean it admitted its liabilities?

MR DAI:   By its affidavit served on ‑ ‑ ‑

GAUDRON J:   Did it admit that it should pay you $1 million in compensation?

MR DAI:   No, not that.  It is just the cause of the action.  Its liabilities in relation to the contract.

GUMMOW J:   What you have to overcome, I think, is the statement by the Full Court at page 35 of the book ‑ ‑ ‑

MR DAI:   Page 35?

GUMMOW J:   Yes, paragraph 10.

MR DAI:  

In our view, none of the application, statement of claim, affidavits or any other documents filed by the appellant discloses any cause of action –

is that the paragraph, your Honour?

GAUDRON J:   Yes.

MR DAI:   Yes.  Well, if there are none of the applications, statements of claim or affidavits, then that application should not be competent.  That is the logical question and that is what I said before, because the judgment was made based on the competence.  It is not incompetence which Order 52 rule 18 applies.

GUMMOW J:   Yes.

GAUDRON J:   Well, I suppose that is directed to the question whether it was an interlocutory judgment or not?

MR DAI:   Your Honour, whether it is interlocutory or final is not a question of law here.

GUMMOW J:   It is.

GAUDRON J:   It can be the only question, the only question.

GUMMOW J:   That is right.

MR DAI:   Because, as are stated in the applicant’s summary of argument this application is a special leave to appeal as you just mentioned but then the Judiciary Act has the jurisdiction to grant special leave to appeal, whether it is ‑ ‑ ‑

GAUDRON J:   Yes, you have to find error.  You have to point to some error.

GUMMOW J:   In principle.  We do not normally interfere in interlocutory proceedings in other courts.

MR DAI:   Well, whether it is interlocutory or not, the High Court still has the jurisdiction over it, your Honour.  It is just that ‑ ‑ ‑

GUMMOW J:   I am saying to you that we have it, but we do not normally exercise it when it is a purely interlocutory dispute.  We wait until there are final orders, unless there is some point of principle, usually a point of principle about the nature of interlocutory orders.

MR DAI:   Which means – which still means the sections or the meanings.

GUMMOW J:   No.

MR DAI:   I am sorry, I am self-represented here.  Could you just explain that clearly to me?

GUMMOW J:   No.  I am not here to explain anything.

GAUDRON J:   Unless the Full Federal Court was wrong in applying ‑ ‑ ‑

MR DAI:   Yes.

GAUDRON J:   Is it Order 52?

MR DAI:   Order 52, rule 18, which means the legal burden on the applicant.  Well, the respondent has not provided any - I mean, the first respondent has not provided any details as required so it is the applicant, who is standing here, who has kept giving orders, details and particulars as required by law, not the first respondent.

Your Honour, Order 52, rule 18 states whether orders are interlocutory or final.  Now, Order 52, rule 18(1):

A respondent may move on notice at any time for an order dismissing an appeal as incompetent -

which this appeal before the Full Court of the Federal Court is competent, which is objected to.

GAUDRON J:   No.

GUMMOW J:   No.  You do not understand that, you see.

GAUDRON J:   It was not competent if Justice Lindgren’s order was an interlocutory order.

MR DAI:   Interlocutory orders as part of the procedure, not facts, not the factual thing, and subrule (2):

Upon the hearing of the motion, the burden of establishing the competency of the appeal is on the appellant.

As I said, the appellant has given all the facts and particulars and I have never received any ‑ ‑ ‑

GAUDRON J:   Yes, but this is a question of law, not a question of facts or particulars and the question of law is whether Justice Lindgren’s order was an interlocutory order or a final order.

MR DAI:   There was no discussion in the court anywhere.  There were no oral discussions.  It is all paperwork, that it.

GUMMOW J:   Because it is fairly clearly understood that it is an interlocutory order.

MR DAI:   No, your Honour.

GUMMOW J:   Yes, it is, I am afraid.

MR DAI:   It is an interlocutory order so that regardless of whether the facts are there or not the order must be made based on the procedure, not on the facts.  Is that what you are saying, your Honour, with due respect?

GUMMOW J:   No.  This is a legal distinction.

MR DAI:   You have not given me a proper - - -

GUMMOW J:   This is a legal distinction which is ‑ ‑ ‑

MR DAI:   So the legal distinction is, as you just stated, to the Court ‑ ‑ ‑

GUMMOW J:   No, all I am saying – look, just listen to me.  It is a legal distinction which, unless you understand it - which you are not to be blamed for not understanding it - but unless it is appreciated it cannot really take you anywhere, you see.  The fact is this was an interlocutory order of Justice Lindgren.

MR DAI:   That is what I mean, so if it is the interlocutory order regardless of facts, the Court makes a decision on the interlocutory order.

GUMMOW J:   Well, if you want to talk over me, talk over me and I will not say any more, Mr Dai.

MR DAI:   What am I supposed to do, your Honour, then?

GUMMOW J:   You just continue with your submissions for the balance of your time.

MR DAI:   Thank you, your Honour.

GAUDRON J:   No, was there anything else you wish to say because you were not stopped?  You were told to continue your submissions.

MR DAI:   I will just finish my supplementary…..anyway.  At this final stage, the matter is focused on whether the first respondent is able to exercise its legal right to deny that it has ever intentionally nullified complaints and acted oppressively by asking for further information when evidence, under and before its jurisdiction, is sufficient should it be able to satisfy Order 20, rule 18 of High Court Rules “DENIAL TO BE SPECIFIC” or Order 20, rule 14 of High Court Rules “Specific Denial”.  It has failed.

There is no provision in the proceedings before the High Court that prohibits a party from filing supplementary submissions any time after the completion of filing argument in reply under Order 69A of High Court Rules.  In fact, section 77J of Judiciary Act 1902 (Cth) authorises any party to make any necessary amendments “At any stage of a proceeding before the High Court”, and Order 52, rule 21 of Federal Court Rules prescribes the rights of any party to file “supplementary” notices and it treats them as if they were notices of appeal in accordance with Order 52, rule 16.

There is no provision in the Commonwealth of Australia Constitution Act either that prohibits any judgment from being heard.  In fact, section 73(i), (ii) and (iii) of the Constitution Act prescribes the High Court jurisdiction over any courts at interstate commissions regardless of “exceptions or regulation prescribed by the Parliament”. 

The hearing was listed on 6 April 2001 but adjourned until today.  On the night of 4 April 2001, that is eight months after the applicant’s reply filed on 31 July 2000, in fact a year and a half since the proceedings began on 25 October 1999 before the Federal Court, the first respondent delivered to the applicant a notice of a change of a solicitor and renaming the first respondent as Telecommunications Industry Ombudsman Limited.  While

business and jurisdiction do not mix, “Stand mute” in this matter simply means that the first respondent is unable to deny that it has intentionally nullified a complaint and acted oppressively under its jurisdiction.  The first respondent is guilty as charged.

Issues brought to light in the proceedings are enormous.  Citizen investigation or citizen arrest is an important part of a society under rule of law.  To consummate the meaning of section 13 of the Crimes Act 194 (Cth) and safeguard the interests of the administration of justice either generally or in the particular case under section 35A(b) of the Judiciary Act 1903 (Cth), the respondent must be dealt with under criminal law. I am now handing the matter to the State and the Commonwealth. Thanks, your Honour.

GAUDRON J:   Yes, thank you, Mr Dai.  The Court need not trouble you, Mr Keane.

The applicant seeks special leave to appeal from a decision of the Full Court of the Federal Court of Australia holding that his appeal to that court was incompetent and refusing him leave to appeal.  By his purported appeal to the Full Federal Court, the applicant sought to challenge a decision of Justice Lindgren dismissing proceedings pursuant to Order 20, rule 2(1) of the Federal Court Rules.  That order was, in accordance with established practice, characterised by the Federal Court as an interlocutory order.  We can detect no error in the approach of Justice Lindgren or in that of the Full Court.  Accordingly, special leave is refused with costs.

AT 12.40 THE MATTER WAS CONCLUDED