Dawson & Ors v Eatts

[1990] HCATrans 121

-•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S62 of 1990

B e t w e e n -

TERRY JOHN DAWSON, CHARLES JAMES

BRAZEL, GRAEME WATSON, GRAHAM CARL

BATEMAN, AUSTIN WHITTAKER, JOHN

FLEMING RHODES, GREGORY DALE MARTIN

and BRUCE MARSHALL

Applicants

and

DOREEN EATTS

First Respondent

NATIONAL ABORIGINAL & ISLANDER

LEGAL SERVICES SECRETARIAT

_Second Respondent

THE HONOURABLE JOHN HALDEN WOOTTEN, QC

Third Respondent

THE ATTORNEY-GENERAL OF THE

COMMONWEALTH OF AUSTRALIA

Dawson

Fourth Respondent

Application for special leave to

Appeal

,/

MASON CJ
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 MAY 1990, AT 11.59 AM

Copyright in the High Court of Australia

C2T 21/1/01 1 31/5/90

MR R. BURBIDGE, QC: In this matter, ~ay it please the Court,

I appear with my learned friend, MR P. ROBERTS,

for the applicants. (instructed by Teakle Ormsby

& Associates)

MR J. BASTEN: If the Court pleases, I appear for the first

and second respondents.(instructed by the Aboriginal

·Legal Services)

MR G. GRIFFITH, QC, Solicitor-General for the Connnonwealth:

If the Court pleases, I appear with MR D. ROSE

for the fourth respondent. (instructed by the

Australian Government Solicitor)

MASON CJ: Yes, Mr Solicitor. Mr Burbidge.

MR BURBIDGE:  Thank you, Your Honour. Your Honours, may I

connnence by handing to Your Honours the four points

which we believe are those on which it would be

appropriate for the Court to grant special leave.

May I also, at the same time, hand to Your Honours

an outline of argument.

MASON CJ: Yes, Mr Burbidge. You might address your submissions

first to the special leave aspect of your application,

rather than to arguing the substance of the

questions that you seek to raise· in the appeal?

MR BURBIDGE: If Your Honours please. Well, Your Honours,

could I then ask Your Honours to address the four

points document handed to you. In expansion of

the first point, Your Honours, we would simply

indicate that on the matter coming before the

learned trial judge, Mr Justice Burchett, application

having been made to be joined by those who are

presently the f~rst and second respondents, the

learned trial judge made an order for joinder

against the opposition of the applicants as they

then were .

(Continued on page 3)

. ~.,,,,,.-

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MR BURBIDGE (continuing):  His Honour did not give reasons

in relation to that but indicated that he believed

himself to be exercising his discretion, as he

said. The applicants did not oppose the joinder

of the Attorney-General who sought to be joined
and was, in fact, joined. Thereafter, the matter

proceeded and the applicants were, of course,

successful before Mr Justice Burchett.

The Attorney-General did not appeal against that even after the applicants put on a cross appeal

in which they asserted that His Honour had been

wrong to permit or to order the joinder of Miss Eatts

and the NAILS organisation.

When the matter came before the Full Court,

Their Honours ruled that leave was necessary, treating the order made by Mr Justice Burchett joining the

two respondents who were now appealing to the Full

Court as an interlocutory decision. It was argued

that the cross appeal was one which lay as of right.

That view did not find favour with the Full Court

who ruled that leave was necessary. They declined

to give leave and, of course, the cross appeal
on the question of joinder was, for that reason,

not argued.

It is submitted that in taking that view as

to the nature of the order made by Mr Justice Burchett,

Their Honours came to a view different from that

which the New South Wales Court of Appeal has adopted,

namely the New South Wales Court of Appeal takes

the view, it is submitted, that whilst plainly
the orders relating to joinder are interlocutory
in nature when made and if appealed from immediately
would unquestionably require the leave of the court,
none the less if at the conclusion of the matter
it is sought to appeal against the judgment as
a whole then that order has formed part of the

judgment and appeal may be brought as of right.

(Continued on page 4)

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MASON CJ:	What is the reference to the case that so holds?
MR BURBIDGE:	The important case, I think, is NATIONAL

EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION

LIMITED V MANUFACTURERS MUTUAL INSURANCE LIMITED,

(1988) 17 NSWLR 223. I am able to hand Your Honours

copies if Your Honours do not have them.

MASON CJ:  We have it.

MR BURBIDGE:  Thank you, Your Honour. Could I indicate, before

going to that case, Your Honours, that there is an

earlier case, SMITH V TABAIN, (1987) 10 NSWLR 562.

I think it necessary to take your attention only to the short passage in the judgment of His Honour

Mr Justice Mahony to be found at line 4 of page 566.

His Honour there says:

As to the first matter, the general rule

is clear. On an appeal against a final

judgment it has traditionally been open

to an appellant to raise, provided he

does it properly in accordance with

proper procedures, the correctness of any

interlocutory or other order which has

been made as a step in the proceedings

leading up to the final judgment:	CROWLEY
V GLISSAN.	The only issue in this part

of the argument is whether an interlocutory

judgment holding the defendant liable in

damages in what otherwise would have been

a jury proceeding at common law is for

this purpose an interlocutory or other order.

Your Honours, the reference to GLISSAN's case which

is reported in 2 CLR 402 is useful in so far as it
is submitted that CROWLEY V GLISSAN collects the

situation as it has been, or what was then as it

had been in existence for many years prior to that

judgment.

DEANE J:  Mr Burbidge, could I ~ust divert you for a moment?

If you be right on the ~n custodi'point, this aspect

of the matter becomes unimportant, does it not?

MR BURBIDGE:	Yes, Your Honour.
DEANE J:	Now, that being so, this aspect is important if

you be wrong on the custody point. Now, where

would the intervention of the Court in this case lead

in that context?

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MR BURBIDGE:  I am not entirely certain that I followed

Your Honour in that.

DEANE J:	I am saying assume that this Court does not
interfere with the decision or with the judgment of the Full Court in so far as it relates to the
custody point, that their reasoning stands,
where does this lead in the result of the litigation
to date?
MR BURBIDGE:	We would submit, Your Honour, that the point

is one of substance; it is an important point,

the question of a ri-gpt to appeal.

DEANE J:	I w2•s just looking at the administration of justice
in terms of a particular case.  Where would it lead?
Am I wrong in thinking it would lead to the commissioner being restrained from examining a
question which the Full Court of the Federal Court in published reasons had said he was entitled to examine and that the reasons of the judge in support of an order that he not examine it
were unsustainable?
MR BURBIDGE:	Yes, I think that that would be the consequence,

yes.

DEANE J: Well, that is a problem, is it not, when one comes

to the question whether this is an appropriate case

in the administration of justice for this Court

to intervene on these matters?

MR BURBIDGE:  I certainly take the force of what Your Honour

says in that regard. w·ere we successful in this

one aspect of our argument, then plainly

Your Honoursv,,Duld have to balance up the relative

importances of a denial of a right to appeal in
the context of the two senior courts below this Court
taking a different view. Whether or not that

public consideration would outweigh the consideration

on which Your Honours will have to exercise judgment. to which Your Honour refers is, of course, something

DEANE J:	I was not suggesting you should abandon the point
by any means.  I was simply directing your
attention to something that is exercising my - - -
MR BURBIDGE:	Yes, I recognise that there is, indeed, were

we successful on this point alone. I trust that

this situation will not in fact arise, needless to say.

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MR BURBIDGE (continuing): But, certainly, if it were the

sole point, Your Honours, then I suppose we would

have to say that the point is one which is not,

plainly, merely procedural, and I would need only

to, I think, refer to the nature of the right of

appeal, as indicated by this Court in COMMONWEALTH V

LIMERICK STEAMSHIP and KIDMAN, 35 CLR 69 reference was made to that case, Your Honour, in

J IRONC V QUADL ING a decision of the Full Court of the	Federal Court, itself reported in (1978) 20 ALR 103, a reference
at page 105 point 6. Perhaps if I could simply read that line,
Your Honour. Their Honours say this in the judgments of
Their Honours Justices Nirrm::, and St John:

Implicit in that judgment -

that is the High Court judgment -

is the principle that a right of appeal
is a matter of substance and not a matter

of practice and procedure.

Your Honours, I think that sufficiently indicates

the nature of our position in relation to the first

point. Can I just, before departing fror:i it, take

Your Honours to the NATIONAL EMPLOYERS MUTUAL - - -

MASON CJ: Well, what is the best passage there, from your

point of view?

MR BURE Well, I think, Your Honours, that passage

in the judgment - I should, of course, point out

that His Honour Mr Justice Meagher was in dissent

in the case, from the learned president, and

Mr Justice Clarke. The passage - I think,

Your Honours, that part of the president's speech

judgment, commencing at page 228 of the report

under heading:

Giving meaning to s 103 SUPREME COURT ACT.

Yes, a slip of the tongue there, I am afraid,
Your Honour.	I think I would have to say to

Your Honours that we would also rely - since it really

is a discussion in a slightly different context,

we would have to say that we would ask Your Honours

to look at the whole of the judgment of

Mr Justice Clarke. I think, perhaps, starting at

page 237C is perhaps the important part.

Yes, I am reminded by my learned junior that the

learned president pointed out in his concluding

remarks at page 236 that the question is, one:

the frequency with which the issue has arisen

and the fact that it concerned the jurisdiction

of the Court -

were factors which persuaded His Honour to spend some

time on the judgment.

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MASON CJ:	Now, Mr Burbidge, do these cases really support
the proposition for which you contend? Now, as I
understand it and you will correct me if I am wrong because I have only skirrnned the cases, they seem to be asserting that if you have a right of appeal
against a final judgment you can exercise that right of appeal in such a way that enables you to call in question interlocutory steps taken by the court
below along the way.  But here you did not have a
right of appeal against Mr Justice Burchett's
judgment because his judgment favoured you.

MR BURBIDGE:  With respect, Your Honour, not completely. Our

position was that we had chosen to sue a particular
person, namely the corrnnissioner, on whose behalf

the Attorney-General appeared and without objection

was joined. Now, we did, however, oppose the joinder

of two further parties, asserting that there was no

basis on which they could be joined. In fact, of

course, in the structure of the judgment as it

ultimately emerged, we had a result which was of

course favourable to us -

MASON CJ: And therefore you did not exercise your right of

appeal against that final judgment, assuming that

you had such a right.

MR BURBIDGE: Well, with respect Your Honour, we did. We J0C on

a cross appeal against that order which meant - r.,.;i th

the result of which was that we had a judgment against

more persons than we wished and, of course, were

exposed to appeal by persons whose very presence we

had opposed. So we did in fact put on a cross appeal.

it is true that Their Honours have stated in their

judgment, which corrnnences at page 29 of the application
book on this aspect of the matter- at page 30 line 18,

Their Honours Mr Justices Morling and Gurrnnow say this:

(Continued on page 8)

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MR BURBIDGE (continuing):

On the commencement of the hearing of

the appeal on 11 May 1990, counsel for

the first respondents handed up a document

headed "Notice of Cross-Appeal" -

et cetera.	Now, with respect, it is true but
it does not tell the whole story.	We had, in fact,
filed our cross appeal.

McHUGH J:  Yes, I know, but the point is that you were

not appealing against the final judgment of

Mr Justice Burchett which is set out at page 20.

You are not appealing against the

Honorable John Halden Wootten being restrained

from exercising any coercive or compulsive power.

MR BURBIDGE:	No.
McHUGH J:	What you are seeking to do is to appeal against

Mr Justice Burchett's order concerning joinder of parties.

MR BURBIDGE:. Well, with respect, yes, but we were also

appealing against the judgment which His Honour

had brought down which was a judgment against three

persons. It was part of the structure of the

judgment that His Honour's judgment was against

three parties not against one. In that sense, we were

appealing against -and did so in a formal fashion -

tha t judgment .

MASON CJ:  I do not understand that, when you look at the

notice of cross ·appeal at page 125. It is limited

to the decision given by His Honour granting leave

to the two respondents to intervene and be joined

as parties.

MR BURBIDGE:  I cannot argue with the terms that have been chosen there, Your Honour.

MASON CJ:  Well, I cannot imagine it - you probably drew the

notice of appeal.

MR BURBIDGE:	May I point out, Your Honour, that the decision to which we make reference is that of
12 April 1990. That was not the interlocutory
matter but the final judgment of His Honour.
Could I hand to Your Honours a photostat copy of
DIRECTOR GENERAL OF SOCIAL SERVICES V CHANEY, a decision
of the Full Federal Court of Australia. I do su
only to bring attention to that which fell from
Your Honour Mr Justice Deane.
McHUGH J:	But, that is against you, is it not?
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MR BURBIDGE:	I do not believe so, with respect,

Your Honour.

McHUGH J:	It was held it was an interlocutory judgment.
MR BURBIDGE:__	I think that, with respect, Your Honour,

that there is a discussion of the nature of the

finding - nature of judgment which is of

assistance to us.

(Continued on page 10)

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McHUGH J: This case is in the Federal Law Reports you know.

MR BURBIDGE:  I beg Your Honour's pardon. I had not, in fact,

intended to go to it.	Simply having been led into
this area I thought it	appropriate to bring it to
light.

MASON CJ: Well, what part of His Honour's judgment do you

wish to bring specifically to light?

MR BURBIDGE: Needless to say, I am looking for it as quickly

as I can, Your Honour.

MASON CJ:	You may get a shock when you find it.
MR BURBIDGE:	I wonder if I might pass from it, Your Honours,

and come back to it when my learned junior picks

up the passage I had in mind. It is that part in

which Mr Justice Deane spoke of the structure of

the final judgment as a whole and, I am told,

Your Honours, it is page 181 of the report. Yes

it is that passage, Your Honours, commencing perhaps

two-thirds of the way down the page.

MASON CJ:  I do not see how that helps you, Mr Burbidge.

MR BURBIDGE: I :TJUSt confess I do not :i.rrrnediately see it myself, Your Honours.

I will perhaps go back to my - - -

MASON CJ: Indeed it seems to do damage to you, that is if you

can regard the meaning of the word "decision" in

theAD(JR) ACT as throwing any light on this at all.

MR BURBIDGE: Yes. Perhaps I can abandon that, Your Honour,

unless I find the passage, in which event I will

bring it to Your Honour's attention. Your Honours

that is, I think, as much as we can say on the nature

of the first point, in particular as to its

importance.

DEANE J: Except there is a difference, is there not, in that,

say, for example, an interlocutory injunction had

been granted and you did want to appeal against the

final decision, the right of appeal against the final

decision would not obviously include a right to

appeal against the interlocutory injunction, because

the interlocutory injunction is not something that

is carried forward into the final decision.

(Continued on page 11)

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MR BURBIDGE: That is so, it was not a step along the way,

I think is a phrase that has been used.

DEANE J:	Now, where as here the decision is that parties
who,as I follow it,did not present significant
evidence should be allowed to appear and argue
it does not seem to me to be obvious that that is the sort of interlocutory decision that
carries through into the final judgment, though
I can see the force of your problem that it is
the effect of that interlocutory order that
has us, as respondents, in an appeal but that
seems to me to be a slightly different area.
MR BURBIDGE:	May I start by saying that I am not sure

why Your Honour says that the parties who were

joined did not offer significant evidence.

They offered no evidence on the question of joinder

but to go more directly to the real point, we would

say simply that it was plainly a step along the

way in so far as the form of the judgment

when it ultimately emerges exposes us to appeal

by additional parties which is what happened.

It is not an academic exercise in the present case

though it does not much matter, I suppose.

The fact of the matter is that had, we would say,

His Honour correctly refused to allow the parties

to join as not falling within the relevant order,

then there presumably would have been no appeal

so that there was, indeed, a very real effect

upon the ultimate result.

DEANE J:	I see the force in that.
MR BURBIDGE:	Your Honours, if I could go then perhaps to the

second point. The Full Federal Court, it is submitted,

has significantly widened the concept of arrest.

Now, I do not know whether Your Honours - - -

DEANE J:

Do you not have to though also address the question

on this first point that it is arguable at least

that the trial judge was in error in allowing

intervention because unless that appears we should

not really get involved if the trial judge was right

anyway?

MR BURBIDGE:	I accept that Your Honour. Yes, I was perhaps unwisely or wrongly seeking to confine myself to
the public importance aspects of the matter, Your Honours.
I accept that, yes, we do have to demonstrate that.
That argument is addressed in the second half of page 1 of our outline of argument. If I could just
indicate in a structural sense the outline of
argument handed to Your Honours, point 1 is the whole
of the first page.

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MR BURBIDGE (continuing):  The second aspect of it to which

Your Honour Justice Deane refers is paragraphs 3 and 4.

We have, of course - we start, Your Honours, with the

indication that it is not clear precisely the manner

in which His Honour the trial judge approached the

matter. If Your Honours would look at page 123 of

the application book - this is in the transcript

before His Honour. I need not take Your Honours to

the earlier material. If Your Honours would go to

line 33 of page 123, it having been submitted to

His Honour first that there was rro inherent

jurisdiction to join parties and, second, that the

parties seeking to be joined were not within the

ambit of Order 6 rule 8, which is the relevant rule,

a rule in common form, if I may say - His Honour said:

I am of the view that I do have
jurisdiction to make an order permitting

intervention.

He then made reference to the US Tobacco Company case and on the following page His Honour, having pointed out that the decision was overruled in the fashion

that we think, with respect, does not really touch

on the matter at all, His Honour said at line 7:

In this case I think it would be

appropriate to exercise my discretion

to permit intervention by the two

applicants and I so order.

Now that, with respect, was all that we had from

His Honour on that matter.

MASON CJ:	What does Order 6 rule 8 say?
MR BURBIDGE:	Order 6 rule 8 reads as follows, under the heading

Addition of Parties, 8(1):

Where a person who is not a party

(a) ought to have been joined as a party;

or

(b) is a person whose joinder as a party

is necessary to ensure that all matters in
dispute in the proceeding may be effectually

and completely determined and adjudicated
upon the court, on application by him or by

any party, or of its own motion may order

that he be added as a party and make orders

for the further conduct of proceeding; and

(c) a person shall not be added as an

applicant without his consent.

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Your Honours, of course, the Full Court, having determined that the matter was one requiring leave

and having determined not to give that leave,

made no further pronouncement upon the question of

the orders at all. We draw to your attention,

however, that Mr Justice Beaumont, who wrote a

separate judgment, did.	That appears in the
application book at page 77.

(Continued on page 14)

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DEANE J:	Was the first respondent given leave to appear
before the commissioner and was she participating
in the inquiry? -
MR BURBIDGE:	Yes, I will have to identify them, of course.

Miss Eatts, certainly, was given leave.

DEANE J: Well, she is the first respondent.

MR BURBIDGE:  And the organization had a general leave to

appear in all the matters which His Honour was

hearing, as I understand it.

DEANE J:	What if Commissioner Wootten had ruled that he had no jurisdiction to inquire into Mr Gundy's death and assume he was wrong as a matter of law
in that ruling, could not the first respondent have taken proceedings for a mandamus to order him to proceed in accordance with law, she having
been given leave to appear in that very inquiry?
MR BURBIDGE:	We would say no, Your Honour.
DEANE J:	But if she could have, then obviously His Honour was entitled and right to join her?
MR BURBIDGE:	Even assuming that she had standing to bring

mandamus proceedings that fact, of itself, we would

not concede would, of itself, have made her a

necessary party.

DEANE J:	So that all matters could be finally disposed of? I mean, what if your having won before
Mr Justice Burchett, tomorrow she proceeds under -
what - the JUDICIAL REVIEW ACT or whatever it
is?
MR BURBIDGE:	Yes, we would say that she was not a necessary

party in the sense in which that word has been

used. Indeed, the practical effect of taking the

view that one has to, as it were, rope in all persons

who may have an interest of that kind would be

to - - -

DEANE J:	But it is not all - I mean, was she not the person
with the most obvious interest in pressing for
this inquiry to proceed?

(Continued on page 15)

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MR BURBIDGE:	I do not think there is any doubt that she had

such an interest, Your Honour.

DEANE J:	The most obvious person?
MR BURBIDGE:	Yes, I think that is correct.

DEANE J: Then would it not be quite wrong as a matter of justice to shut her out

as the person most interested in obtaining such

an inquiry in proceedings seeking to stop such

an inquiry, when she has spent money no doubt, or

she is involved and been	represented before the
very inquiry?

MR BURBIDGE: Well, I can only say, Your Honour, that if it be

correct, as we submit it is, that the rule - our

proceedings were not proceedings under the

JUDICIAL REVIEW ACT, of course, which does speak

of interest, nor was there a question of locus standi of the kind referred to in the CONSERVATION case at -

DEANE J: Could she not bring proceedings under the JUDICIAL REVIEW

ACT if she had an interest?

MR BURBIDGE: Well, we would say not, Your Honour, but we would

say she did not have a sufficient interest in the

relevant legal sense, but however that may be, even

let it be assumed that we were wrong as to that

matter we simply say that there is but one power in

the proceedings in which we were engaged to join

parties and sadly, or not sadly, Miss Eatts did not

answer that description and we were, as I say,

ultimately denied the opportunity to so argue.

DEANE J:  I am sorry to delay you so much, Mr Burbidge, but can

you give me the reference to the Federal Court rule

again?

MR BURBIDGE: Yes,it is Order 6 rule - - -

DEANE J: Is it set out in the appeal book anywhere?
MR BURBIDGE:	No, I do not believe it is, Your Honour.

McHUGH J: There is a bit of a summary at 122, line 11 - part

of it anyway.

MR BURBIDGE: Well, thank you, Your Honour, yes.

DEANE J: Well, that seems to be the critical part.

MR BURBIDGE:  Can I just, before departing from that point,

Your Honours, return for a moment to Mr Justice Beaumont

at page 77. His Honour did have something to say on

the matter. His Honour said this:

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The first respondents have lodged an appeal,

purporting to be as of right, from this

joinder.

The appellants having been granted leave

to appear before the Commission, they had

a sufficient interest to justify their joinder

in the proceedings.

His Honour then cites SINCLAIR V MINING WARDEN case

and the CONSERVATION case.

(Continued on pagel7)

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MR BURBIDGE	(continuing):	Your Honours, we would simply

say that in so doing, His Honour has equated

persons with an interest with persons whose joinder

as a party is necessary and we, for our own part

as I have already indicated, would not accept that

on the tests in SINCLAIR's case, for example,

Miss Eatts could be seen to have even a sufficient

interest within the meaning of that term in that case

and the simple reason is, because in SINCLAIR's
case certain persons were exercising a statutory
right given to them by mining Acts to appear and

to object and they were simply exercising a

statutory right. We would seek to argue that the

question of interest involves the necessity of

demonstrating some sort of legal right or legal

interest beyond that which the ordinary use of the

word might suggest.

Then, Your Honours, the next point we make

of our four is that the court has significantly

widened the concept of arrest. If I could ask

Your Honours to go to the application book at

page 52 - could I just say to Your Honours that ic

is our submission that the structure which

Their Honours, the majority, Mr Justices Morlin8

and Gurnrnow, the structure of their judgment

involves a revision of a number of authorities

bringing them to a point where at the top of

page 52 they then say this:

What then follows -

they pose the question -

from the consideration of these

authorities -

and they then set out five matters which in

Their Honours' assertion follow:

Whenever a police officer accosts an

individual and restrains his freedom to

walk away, he has, for the purposes of

the Fourth Amendment, "seized that person"

and he also "seizes him" by shooting him -

well there is no argument about that:

Further, in some contexts, custody may
subsist without immediate physical control

and police may have a person in custody without

first having arrested that person.

That too, is not in issue:

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MR BURBIDGE (continuing)

An arrest may occur when, by words

or conduct, a person makes it clear to

another that he will, if necessary, use

force to prevent the other person from going

where he may want to go -

and then this line follows -

it is not essential that the other person

have submitted to the display of force.

And then they set out a further matter

relating to imprisonment, which I do not bother

to read. Now, Your Honours, it is on those

lines commencing:

An arrest may occur when, by words, or conduct -

et cetera, that we focus, and tre reason we do so is,

first, because it has some relevance, we would

think, to the determination of the question which
was facing His Honour Mr Justice Burchett, and
the reason that that is so - the reason that it is

relevant - is because it was argued that in

surrounding the house with the avowed - or the

accepted - intention that persons therein would not

be permitted to go about their business until such

time as they had identified themselves as not
being the person sought, and had demonstrated, or

had been seen not to pose a threat to the police

and the public, it was said that in surrounding

the house in this fashion, Mr Gundy and all others

therein had been taken into custody: such was the

argument which, indee~the Royal Commissioner

accepted.

Now, plainly enough, Mr Justice Burchett

did not.	He made reference to the situation of
highjackers at an airport. Plainly if an aeroplane

was surrounded by security guards, it would be an unusual use of the word "custody" to suggest that

all those in the plane were in custody simply because

they were required to identify themselves as not
the highjackers in order to be free to go about

their business.

C2T34/l/FK	18	31/5/90
Dawson

MASON CJ:	But let us assume that there is a real question
mark about the entirety of this sentence, not
merely the last clause to which you refer. Why
word "custody11 or 11 death in custody" in its should you get special leave in relation to the
application to this case? After all, by and large the application of the expression involves matters of fact and degree. It does not necessarily
involve the question of general principle.

MR BURBIDGE: Well, we would, with respect, accept that it

certainly involves questions of fact. We would say,

however, that the concept of custody is a legal

state and it is, we would submit, a question of

mixed law and fact.

McHUGH J:	But it is easier to describe than to define and
it is a question of fact and degree in every case,
is it not?

MR BURBIDGE: Well, with respect, no,Your Honour. We would say

that where as here the evidence of the facts was

common throughout, all the evidence that ever there

was was the transcript of the six weeks coroner's

inquiry, that - - -

McHUGH J: That depends upon whether you accept that evidence

in the entirety. Supposing the commissioner did

not accept it or drew certain inferences - - -

MR BURBIDGE: Well, Your Honour, this argument, of course, was	raised against us, 11 How can you know that he does
not have jurisdiction until he is allowed to have a go, as it were? 11 And the answer to it is that
which Mr Justice Burchett set out, and which we
believe ~s common throughout, namely, it has never been suggested that there is any new evidence or
that there is any additional witness possible on
the matter on the question of "in custody" or
"not in custody". Now the evidence on which the
commissioner made his decision is the same evidence
on which Mr Justice Burchett made his decision.
Now the Full Court ultimately have not said, "Well, on these facts it is our view that he was indeed in
custody". They have not said that. What they have
said was, "We take the view that you have not
proved, before Mr Justice Burchett, that he was not in custody.

(Continued on page 20 )

C2T35/1/CM	19
Dawson
McHUGH J:	But can you put your case any higher than this,

that on your argument custody of a person does

not arise until the police have secured control
of that person and that they have not secured control

of him until either he has submitted to the police

or is rendered incapable of any physical resistance

to the police? That is the highest you could possibly

put your argument, is it not?

MR BURBIDGE:  Yes, I think that adequately sums it up,

Your Honour, yes.

McHUGH J: Why is it not still open on the facts for the

commissioner to find that nevertheless this person,

the deceased, was in custody even within that

definition?

MR BURBIDGE:  The answer to that is because all the evidence

is known already. All the evidence is known, it

is not suggested that there is or could be any

additional evidence and it follows that the question

of whether the man is in custody on those facts

is one which is susceptible to determination at this

stage.

McHUGH J:  Supposing the commissioner rejected the evidence

as to the circumstances of how the gun went off

and so on, why could he not draw an inference from

the rest of the evidence that, for example, the

person, the deceased, was under control at the

time the gun went off?

MR BURBIDGE:  Because there is simply no evidence from which such a conclusion could be drawn.

McHUGH J: It is a question - I mean - - -

MR BURBIDGE:  Even as a matter of inference. The evidence

is - there are two sorts of evidence, of course;

there was the oral evidence of what actually

happened which, by and large, was, in so far as

eye witness account, restricted to two police officers

who survived as against the man who was deceased,

of course.

(Continued on page 21)

C2T36/	1 /ND	20	31/5/90
Dawson

MR BURBIDGE (continuing):  But additionally to that there was

a great deal of objective evidence about exactly

where blood was and markings on the wall - all the

usual forensic evidence that one would expect to

see in the circumstances of a shot gun blast.

The theory ran initially - and indeed the

newspapers continued to repeat it as though it was

established - that the police had in some way

deliberately shot the man in the bed, bad enough in
itself, but then, to make it a really good journalistic

coup, it was the wrong man. Now that theory was,

in fact, advanced in cross-examination consistently,

at least, right throughout the early weeks of the

coroner's inquiry. But ultimately it was not even

argued to the jury that it was sustainable simply

because - and admittedly I am telling Your Honour

stuff from the bench I know -from the bar table

but simply because the objective evidence led

every witness who was prepared to espouse the

theory to accept that it could not have happened

and it did not happen that way.

The real point in issue before the coroner's

jury was in what position was Mr Gundy at the time
the gun discharged and the only evidence, the
objective evidence, which tied in exactly with the

oral evidence was he had plainly been standing

by the door, in a fashion - well, that is it,

standing by the door in a fashion consistent

with wrestling of the gun. Now, it is pointless,

with respect, to say the - - -

McHUGH J:  But I do not know anything at all about the evidence

but supposing it was open, from all the surrounding

circumstances, for the commissioner to find that the deceased had already submitted to the police at the

time the gun went off.	Why would he not be in
custody then?

MR BURBIDGE:  For a start the police were not seeking Mr Gundy.

When you say "in custody", I mean, that raises the

question -

McHUGH J: There was this particular - - -

MR BURBIDGE:	Under control, yes, I accept that.
McHUGH J:	Under control.

MR BURBIDGE: All right, even that would raise the question

is he thereby in custody because of the Terry v

Ohio type situation? Have the police got some

right to stop a person for a limited purpose without

it being said that they are in custody within the

meaning of the letters patent?

C2T37/l/LW	21	31/5/90
Dawson

McHUGH J:	It seems to me your difficulty is that you are seeking to stop the inquiry before it even starts.
It might be a different thing after all the evidence
is in and the commissioner has made his findings.
It may appear then that he has no jurisdiction~
MR BURBIDGE:	Well, could I just say to Your Honour that the

courts have never shrunk from determining whether or

not the factual aspects of the jurisdiction exist.

Could I just remind Your Honours of the approach

and the difference in the nature of the evidence

which this Court drew attention to in RV BLAKELEY,

(1950) 82 CLR, and I refer to the judgment of

Mr Justice Fullagar in that case at the foot of

page 90.

Did Your Honours wish me to continue at this

stage in view of the time?

MASON CJ:	We will adjourn to 2. 15, Mr Burbidge.
MR BURBIDGE:	If Your Honour pleases.

AT 12.51 LUNCHEON ADJOURNMENT

C2T38/l/HS	22	31/5/90
Dawson

UPON RESUMING AT 2. 19 PM:

MASON CJ:  Yes, Mr Burbidge.

MR BURBIDGE:  Thank you, Your Honour. Your Honours, could I

return, for the moment, to the question of the

importance of the three points other than the

denial of appeal point. We have endeavoured to

encapsulate those as briefly as seems appropriate

and we have done so in these terms: it is, in
our submission, undesirable that an incorrect

statement of the law on matters of fundamental

public order remain uncorrected. That would, we

would submit, go to mostly what we would submit

are the incorrect statements as they related to

arrest and to custody. I want to say something
briefly about the custody in a moment, if I may.

The second proposition we would urge upon Your Honours is that it is desirable that the Royal

Commissioners, of whom, of course, there are a

number acting pursuant to letters patent under

this legislation, not act upon a concept of custody

or arrest which is incorrect. And the third and

final matter we would urge upon Your Honours is that it is undesirable that police officers and

others should be exposed to action based upon

incorrect statements of the law by a superior court.

Your Honours, the second of the four matters

on which I wish to address you briefly is to hand

to Your Honours, if I may, photostat copies of

an extract from Criminal Law by Smith and Hogan,

which is the sixth edition, and an extract from

Police Powers in England and Wales by Dr L.H. Leigh,

second edition. The purpose in handing those

to Your Honours is simply to support - I have given

my learned friends copies - the proposition that

it has been for many years accepted that arrest

by words alone requires a submission by the person

to whom those words are addressed to make it complete.

I should say, Your Honours, for what it worth,

there is a statement in similar terms in Gillies

Law of Criminal Investigation at page 142 of that

work.

(Continued on page 24)

C2T39/1/ND	23	31/5/90
Dawson

MASON CJ: All that suggests, Mr Burbidge, that nobody is

going to pay much attention to what the Federal

Court said in that sentence that deals with

arrest.

MR BURBIDGE: Well, Your Honours, one would hope that if it

be as incorrect as we submit it is, that it may

ultimately fall in some way to be disregarded,

but whilst it remains there it is obvious

enough, it is a statement of a superior

court. I can put it no higher than that.

Now,the third matter, Your Honours, is this, that

in addition to what we submit is a serious

misstatement of the law on arrest, we would submit

there is a serious misstatement of the law as it

relates to custody. That, we would submit, is to be

found at page 55 of the application papers.

Their Honours, at line 15, set out certain factual

matters to which they assert they had particular

regard, namely:

the surrounding of the house by armed police

officers -

and then they mention -

the time and method of entry -

and they mention a -

confrontation of Mr Gundy in his darkened room -

and they assert that

In our view, at that stage

we would assume that that would mean that evidence

being before the tribunal of fact -

it could not be said that the facts showed
the Royal Commissioner would be acting in
excess of his jurisdiction if he proceeded -
et cetera.	Now that statement, we submit, plainly

enough, though notwithstanding its wording, is an

assertion that on those facts it is open to find

that Mr Gundy was indeed in police custody in those

factual circumstances.

C2T40/l/CM	24
Dawson

McHUGH J: Well, they contain a number of categories of

reference, such as time and method of entry into

the house, and confrontation of Mr Gundy in his

darkened room - they are calling on all the evidence

that relates to that, are they not? Could I ask

you - take you off your argument slightly, but,

why was it not open to the commissioner to take

the view that he takes at page 110 of the book?

That is to say, that "in all probability" he would

have heard the "instruction":

Don't move and everything will be

all right.

and you draw an inference that he would have

submitted to that instruction.

MR BURBIDGE:  Well, of course, that immediately raises the

factual problem that plainly enough, he did not

submit to any such instruction at all.	He did not.
The only possible inference - - -

McHUGH J: Well, he may have submitted and then attempted

to do something.

MR BURBIDGE:  This takes us back to the same question,

Your Honour. I can only say that it really is

tantamount to saying, "Well, possibly some other

evidence will emerge".

McHUGH J:  No, it is a question of interpretation. At line 31

the commissioner says:

Unlike them Mr Gundy is alleged to have acted

in a way which may variously be interpreted

as an attempt to resist or escape custody.·

MR BURBIDGE:	Yes.
McHUGH J:	To my mind his actions reinforce
rather than negate the fact of custody.

The difficulty I have with this is that you are

attempting to restrain the commission from

inquiring into this on the basis that they have no

jurisdiction. Until findings are made, it is very

difficult to know whether they have got jurisdiction

or not.

(Continued on page 26)

C2T41/l/FK	25	31/5/90
Dawson

MR BURBIDGE:  Well, that problem

is one that confronts every case of threatened

excess of jurisdiction, namely, well, perhaps
as it goes along additional evidence will emerge.

But as Mr Justice Burchett recorded, the evidence -

the totality of known evidence is in fact

available. Further, as he records, there is no

suggestion of any new evidence being available and,
indeed, the facts themselves make it apparent that

the possibility of additional evidence going to

this question of custody is remote, to say the least.

McHUGH J: Well, if there was any evidence at all that he submitted,

even momentarily,and then attempted to escape or

confront the police, the comrnissioner has got

jurisdiction.

MR BURBIDGE:  But nobody has suggested that such evidence

exists, nor has anybody suggested that - - -

McHUGH J:	The connnissioner seems to think so at page 110.	He
says:

in all probability have heard the

same 'instruction'.

That, I suppose, that is fair enough, but the

proposition that the words:

"Police. Don't move.

addressed to a particular person - and there is evi.dence

not only from the police but the person himself that

that was what was said to him in the front room - the

the proposition that that, in itself - well, first

of course in order to effect an arrest - and bear

in mind that none of these persons was intended to be

taken into custody in any formal sense, they were

not the persons for whom the arrest warrant was being

executed, but if words alone are to constitute an

arrest first, they must be clear and unequivocal;

they must be addressed to the person the subject of

the arrest and they must be followed by submissions.

(Continued on page 27)

C2T42/l/JL	26	31/5/90
Dawson

MR BURBIDGE (continuing):  Now, with respect, none of those

three essential matters is the subject, we say, of

any evidence whatever from which any inference could

be drawn that they existed.

McHUGH J:  That is a question of evidence. It is a question

of fact and degree.	On a special leave application
this Court cannot be	concerned with determining
whether, as a matter	of fact and degree, some factual
conclusion is there,	Mr Burbidge.

MR BURBIDGE:  Well, I take the point, Your Honours. I have

indicated the three bases on which we submit that -

I had not quite ~oncluded reading the passage from -

McHUGH J:  We do not sit here as a court of appeal, as you

well know.

MR BURBIDGE:  No, I accept that, Your Honour. Well, it is

~ question ultimately whether Your Honours accept

that it is a matter, that the three propositions that

I put to Your Honours when Your Honours first

res urned do, indeed, carry the matter in to the r e:1 l m

of public importance or whether they do not. \ve

would say that plainly it is highly undesirable thit

a superior court should have made statement~ - l~t us

accept for the mgment that they are incorre·ct - r_!.,,it
having made statements of this nature that they ~i 11,

in fact, be at some stage used in some way.or an()ther.

They must be used.

McHUGH J:  Yes, but we cannot be granting special l~Jave to

correct every perceived errQ_L in a judgment,.

MR BURBIDGE:  No,. I accept::--that. Well, we would put it nn t\vo

bases, Your Honours. We would say first that - r have
said that. I do not wish to repeat myself - thzit it

is a matter affecting fundamental concepts of orrler.

Police cadets are taught pieces of law. This is

unquestionably, we would say, likely to occasion ,it
1 ea s t	con f us ion . The s econ d bas i s i s th i s , th a t i f

Your Honours - and it perhaps comes back - - -

McHUGH J:  But you cannot take that sentence literally and

Their Honours could not have meant it to be applied

literally. If I stop you coming into my house that is

within the literal meaning of that. l hardly

/ arrest you in those circumstances.

(Continued on page 28)

C2T43/l/HS	27	31/5/90
Dawson

MR BURBIDGE:  Well, Your Honour says that they did not intend it

to be taken literally but they do rather appear to

have relied upon that very idea at page 55 line 35

when, having stated their view that:

It could not be said that the ..... Royal

Commissioner would be acting in excess of

his jurisdiction -

they said:

It would be insufficient to displace

that conclusion by pointing to the

circumstances that Mr Gundy did not

''submit''.

So that, it would seem, have some important part in

their thinking. They went on to deal with other

matters and then ultimately, we would say, applied a

wrong test altogether although we do not urge that

that is a special leave point in itself but at

page 56 line 10 they then say:

We conclude that the first respondents

did not make out their case before the

learned primary judge.

With respect, that is not the task which faced

Their Honours. Their task was to determine anew

whether or not on the material placed before them -

RV BLAKELEY - the material established that it was

or was not within jurisdiction. But, however, that

may be, Your Honours, the only final matter that I

can put to Your Honour arises from that which

Mr Justice Deane raised at an earlier stage and that is this: that if it be correct that our point upon

joinder raises a question of appeal and that
question is, as we could say it plainly is, one of

public importance such as to attract leave of this

Court, His Honour then postulates, "Well, it would

be unseemly or it would be unfortunate if the effect

of that was to preclude the inquiry going ahead in

the presence of a judgment by the Full Court saying

that he was, in truth, in custody". I think I

conceded that plainly enough on the assumption that
our point about custody was wrong, then certainly

questions of public policy must be weighed up.

(Continued on page 29)

C2T44/l/JH	28	31/5/90
Dawson

MR BURBIDGE ( continuing) :  But may I point out that in the event that our

special leave point is solely point No 1 and if

we are correct about the question of the

inaccuracy of the statements on both custody and

arrest - or indeed either one - then even if

Your Honours were not minded to grant a special

leave on that point in itsel£ that the problem

to which His Honour refers, of course, disappears.

McHUGH J:  Yes, but even if assuming you are right on that

case, I must say the merits of that point seem to
me the weakest argument you have got because surely

the first respondent, Miss Eatts, is a

necessary party. She must be a necessary party to

the proceedings; got a real interest in upholding the

order of a royal commissioner?

MR BURBIDGE:  Your Honour, I have made the submission that if

we were permitted to advance the argument we would

certainly submit that on the understanding of what

a necessary party is, a party having an interest,

does not necessarily meet that.

McHUGH J:  But surely she has got an interest in it. I take

it she is the de facto wife, is she not?

MR BURBIDGE:	Yes.
McHUGH J:	What if she was the wife?
MR BURBIDGE:	With respect, I do not concede that a person simply by close relationship has that element of
legal interest in the undertaking of a royal
commission which would provide her with standing
to obtain mandamus.

McHUGH J: Well, she may have all sorts of legal interests

arising out of his death.

MR BURBIDGE:  Yes, but they do not, with respect, in any way

flow from the findings of a royal commission.

McHUGH J:  They may flow from establishing the facts of his

death.

(Continued on page 30)

C2T45/l/LW	29	31/5/90
Dawson

MR BURBIDGE:  With respect, the facts of the whole of this

litigation has been conducted on the footing that
the evidence was known, it was sufficient to

persuade the royal commissioner one way, the self

same evidence wa~ sufficient to persuade

Mr Justice Burchett the other way and then it was
sufficient to have Their Honours ultimately say,
"Well, we don't believe you should have or could
have persuaded Mr Justice Burchett on that evidence".

An unusual way of putting it, perhaps, but that

is what they have done.

DEANE J:	But must it not be that if she is the person with
the main interest in pressing for the inquiry and
she has been given leave to appear before the
inquiry it is necessary to ensure that all matters
in dispute are effectually and completely determined,
that she be bound by a finding that the inquiry
is incompetent and cannot go ahead?
MR BURBIDGE:	Well, I have already made the submission in

that regard, Your Honour, and submit that that

is not correct.

McHUGH J:  You see, it would hardly be in your clients'

interests for her to be saying, "Well, I had no

opportunity to make any submissions about this,

no inquiry was held, I was deprived of an

opportunity to argue that the commission had

jurisdiction over the matter". She seems to me

to a person very directly affected by the inquiry?

I mean, apart from the relevant officers, she

would seem to me the next person affected by the

inquiry.

MR BURBIDGE:	There is not the slightest doubt - she had a son who was, I am not certain whether he was
a son of the union with Mr Gundy but I do not think
that matters much, but no doubt he had the same
type of direct interest as well but nobody has
suggested that he might be joined; nobody has
suggested the police association should be joined
or nobody suggested that any of the numerous other persons to whom leave had been granted should be
joined.

(Continued on page 31)

C2T46/	1 /ND	30	31/5/90
Dawson

McHUGH J:	You might have a point in respect of the Legal
Service, the other respondent, but she certainly
seems to be fairly directly involved.
MR BURBIDGE:	Nobody could possibly suggest or submit and I

hope I would never be heard to do it - Plainly

she was interested in the ordinary sense of the

word, and I do not in any way derogate from

the depth of her interest in that sense, but we

do say, with respect, that the authorities do not

establish that persons having an interest of that

type have the necessary legal standing to take

mandamus. We have already submitted that even

were that so, the fact that a person may have an

entitlement or standing to take mandamus proceedings,

would not, of itself, make them unnecessary party

to that matter which was currently before the Court.

DEANE J:  But it would be to effectually and completely

determine that matter, because otherwise that

matter could be raised in subsequent proceedings

with absolutely impossible consequences.

MR BURBIDGE:  Well I suppose the short answer to that,

Your Honour, is that if that interpretation were

accepted, then, of course, it would be impossible

to know the limits of those whom one should join

in order to effectually dispose of the matter in

one hit, as it were.

DEANE J:  But it really only arises when there is somebody

there, but you have dealt with it and I think

both sides - - -

MR BURBIDGE:  Whatever I can say on that point, I believe I

have said, Your Honours,	thank you. Those
were the submissions of the applicant.	May it
please the Court.

MASON CJ: 

Yes, thank you Mr Burbidge. The Court need not

trouble you, Mr Basten,nor you, Mr Solicitor.

The applicants contend that the Full Court of

the Federal Court fell into error in several
respects and that the questions involved warrant
the grant of special leave to appeal.

The applicants put forward two principal

grounds in support of the application. The first

is, that the Federal Court was wrong in treating

the applicants' notice of cross-appeal as

constituting an appeal from an interlocutory order

and in refusing leave to appeal. The order appealed

from was an order made by the primary judge granting

the first two respondents leave to intervene. The applicants submit that the order was final and, on

C2T47/l/CM	31	31/ 5/90
Dawson

this footing, they further submit that they were

denied a hearing and determination of their appeal

as of right. The short answer to this contention

is that if the applicants be correct in characterizing

the order granting leave to intervene as final, it

was nonetheless properly made under Order 6 rule 8

of the Federal Court Rules in relation to the first

respondent in that, in the particular circumstances

of this case, that respondent was a necessary party

to the Federal Court proceedings. She was a person

whose joinder was necessary to ensure all matters in dispute in the proceeding might be effectually

and completely determined and adjudicated upon

within the meaning of that rule. It would be

pointless to grant special leave to argue a point

when at the end of the day the ultimate question

whether either of the first two respondents possessed

standing to appeal to the Full Court of the Federal

Court would be resolved against the applicants.

The second principal ground is that the Federal

Court erred in holding that Mr Gundy was in custody

at the time of his death. The legal concept of

custody turns very largely on matters of fact and

degree and that is so in the present case. We are

not persuaded that the resolution of the question in

this case would result in any elaboration of general

principle so as to warrant the grant of special

leave to appeal.

As it has not been shown that there is any

other matter that would warrant the attention of the

Court, the application must be refused.

We would repeat what we have said on previous

occasions, namely, that the refusal of special leave is not to be taken as an endorsement of all that was said by the court below.

The application is therefore refused.

MR BASTEN:  With costs, if the Court pleases?

MASON CJ:	You do not resist an order for costs, Mr Burbidge?
MR BURBIDGE:	I do not believe I can, thank you.

MASON CJ:	The application is refused with costs.	The Court
will now adjourn until 10.15 am tomorrow.

AT 2.42 PM THE MATTER WAS ADJOURNED SINE DIE

C2T48/l/JL	32	31/5/90
Dawson