Delphinus v Chiropractors and Osteopaths Bd of Qld

[1999] HCATrans 300

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B18 of 1999

B e t w e e n -

ELIAS MUHAMMAD DELPHINUS

Applicant

and

THE CHIROPRACTORS AND OSTEOPATHS BOARD OF QUEENSLAND

Respondent

Application for removal pursuant to section 40 of the Judiciary Act 1903

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON TUESDAY, 28 SEPTEMBER 1999, AT 9.43 AM

Copyright in the High Court of Australia

MR D.C. FITZGIBBON:   If your Honour pleases, I appear for Mr Delphinus in this matter. (instructed by Rea & Sockhill)

MR P.A. KEANE, QC:   If your Honour pleases, I appear with my learned friend, MS H.P. BOWSKILL for the respondent. (instructed by Minter Ellison)

HIS HONOUR:   Mr Fitzgibbon.

MR FITZGIBBON:   Thank you, your Honour.  Your Honour, the short circumstances of this case are as detailed in the application made to the Court and are set out in the applicant’s summary of argument.

HIS HONOUR:   Yes, I have read the papers.  You should assume that I am reasonably familiar with them.

MR FITZGIBBON:   Thank you.

HIS HONOUR:   What is the matter now pending in a court of estate that you seek removed?

MR FITZGIBBON:   Your Honour, I say that, with respect, that the matter was, in fact, filed prior to the magistrate’s hearing and the magistrate was given notice of it and, your Honour, in effect the magistrate chose, despite there being clear documentation in front of him, to go ahead with the matter and to simply dispose of the matter.

HIS HONOUR:   Yes.

MR FITZGIBBON:   Effectively, my client, according to my instructions, was fined $1000 and $10,000 in costs, not part of the fine, but that was the determination.

It is my submission that twofold matters arise out of that and they are these:  the first is that on the question of removal, Mr Delphinus had raised a number of issues including that which has now been concluded, of course, in the judgment in Sue v Hill and that was given, of course, on 23 June of this year and your Honour was a part of the first three.  I do not need to take your Honour over that.  Secondly, he raised a number of other issues involved, including at what point in time Australia became a nation.

HIS HONOUR:   Yes, I understand that, but what is the matter pending in a court of a State that is to be removed into this Court?

MR FITZGIBBON:   I say, your Honour, that what the magistrate did was unlawful in itself and that which remains to be removed to this Court is, in fact, the original application that was made to the Court prior to the hearing.

HIS HONOUR:   An order has been made by the magistrate disposing of the complaint and summons that was before him, was it not?

MR FITZGIBBON:   Yes, that is correct, yes.

HIS HONOUR:   The magistrate may have been right or wrong to proceed – and I take it was “he”, was it – as he did.

MR FITZGIBBON:   Yes.

HIS HONOUR:   Yes.  But having proceeded, why is that matter not at an end, leaving you to whatever appellate remedies you may have in Queensland?

MR FITZGIBBON:    I say, your Honour, the matter is not at an end.  I say that the magistrate proceeded clearly in the face of what – and it was quite clearly – just to recap very quickly.  Your Honour has indicated, of course, you have read the papers, but he was handed documentation.  It included High Court numbers.  He made some issue over the fact that there was no stampage on it, but your Honour will know that does not happen.  So, in fact, he was wrong on that issue and, in fact ‑ ‑ ‑

HIS HONOUR:   You say he was wrong to proceed in the face of the pending application to this Court.

MR FITZGIBBON:   Yes.

HIS HONOUR:   Why is that so?

MR FITZGIBBON:   Yes.  I say, your Honour, because under Kreglinger’s Case – The Commonwealth v Kreglinger & Fernau 37 CLR 393, and if I may take your Honour to that part of the decision which I believe is of significance, at page 401 in the joint judgment of Chief Justice Knox, Justices Gavan Duffy and Powers, your Honour will see at page 401 point 5 of the judgment these words:

It follows that, if that question was one as to the limits inter se of the constitutional powers of the Commonwealth and those of a State, the Supreme Court had no jurisdiction to decide it, and that on the question arising the duty of that Court was to proceed no further in the cause, which was by force of sec 40A of the Judiciary Act removed into this Court.

HIS HONOUR:   But that was the automatic removal of an inter se question.

MR FITZGIBBON:   Yes, I accept that.

HIS HONOUR:   This is not removal as of right.  This is removal on application.  Why does the pendency of the application for removal preclude the magistrate from proceeding to hear and determine?

MR FITZGIBBON:   I say, your Honour, that in fact that part of the passage also applies to an application of this type.  I say that the same situation arises and in fact it was the duty.  Without wearying your Honour of what the actual section says, it says it is the duty of the court.

HIS HONOUR:   That is 78B.

MR FITZGIBBON:   Yes, sure.

HIS HONOUR:   That is not the removal.

MR FITZGIBBON:   No, that is correct, but under 78B notices had been served and under the Judiciary Act itself I say that in fact it is the same situation that on the question arising, the duty of that court was to proceed no further in the cause.  I accept, your Honour, of course, these were the inter se matters but I do say that in fact the same circumstances arise.

If I also might refer you – I accept it is in the same judgment – but on page 402 the Court further said:

In the circumstances it is clear that the Full Court of the Supreme Court had no jurisdiction to entertain the appeal from Cussen J or to pronounce judgment upon it.

HIS HONOUR:   Yes, well read on:

By force of the statute the whole cause was at that stage removed –

You cannot point, can you, to an analogous provision removing into this Court, or depriving the magistrate of jurisdiction to do what was done, can you?

MR FITZGIBBON: I say section 40 does, itself, in terms of that, upon the filing of the documents and the serving of the documents, and the notice that was, in fact, given to the magistrate, and he had clear notice. In fact, it went further than that. Indeed, 78B notices were given to the magistrate, and yet he chose to ignore all of that. I say, therefore, your Honour, it becomes a matter of not only were the questions raised by Mr Delphinus. It was certain on Sue v Hill – Britain, of course, has been declared to be a foreign power in terms of that judgment – and secondly, of course ‑ ‑ ‑

HIS HONOUR:   No, section 44(i) of the Constitution has been construed. That is what Sue v Hill did.

MR FITZGIBBON:   Yes, I accept that, your Honour, no disrespect on that, I am simply saying that.  So not only were the questions that he raised, they were not, in fact, matters which the respondent says are simply matters without merit.  I say they did have merit, but I also say that, in fact, we have here a matter of public policy, which I say the Court can take cognisance of the circumstances of this case, and, in fact, say that what the magistrate did here was one that was outside the statute.

Indeed, I say it goes right against the whole policy.  I mean, if it is not the policy of the matter, then, your Honour, why have it within the Judiciary Act.  If, quite simply, someone in our hierarchal system, and I say that advisedly, in fact can simply disregard the provisions of both the – particularly the Judiciary Act and, of course, the provisions that are set down therein, and it is not just a matter of that, it is not as though it were put in a letter and said, “This is what we propose to do” it had been done, and, your Honour, in fact the magistrate was made cognisance of it.  He was given, as I say, very, very clear notice of what occurred and on that basis I say it is a matter of, I say intense public interest because it is a matter where it is occurring – no, I cannot make that submission, I would simply be repeating scuttlebutt, but I suggest that it is a matter that will become of increasing public concern and for that reason I say that the leave ought to be allowed in the matter.  Your Honour, I do very much rely on the papers.

HIS HONOUR:   Yes.

MR FITZGIBBON:   I do not believe I can take it beyond those two issues.

HIS HONOUR:   Yes, thank you, Mr Fitzgibbon.

MR FITZGIBBON:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Solicitor.  What do you say as to the question of whether there is a matter pending in the Magistrates Court at Noosa on the basis that the contention, as I understand it, is that the magistrate proceeded contrary to 78B.  Perhaps the argument goes so far as to say “and therefore without jurisdiction”.

MR FITZGIBBON:   Yes, it does, thank you.

MR KEANE:   Your Honour, the first thing we would say is that section 40 makes provision for the removal of an extant judicial proceeding, or a part thereof. Our learned friends seek to identify the relevant extant judicial proceeding as the application for removal itself. That, in our respectful submission, is quite wrong.

HIS HONOUR:   I did not understand Mr Fitzgibbon to identify that as the extant proceeding so much as the proceeding in the Magistrates Court on the basis that the magistrate proceeded in the circumstances he described when he should not have.

MR KEANE: Your Honour, as to whether or not he should have it is our submission that it is not enough for someone to assert that they genuinely believe that a question arises under the Constitution or involving its interpretation. It must appear to be so. We have cited the authorities that support that proposition in paragraph 3(a) of our outline. There is not, that one can discern in the other side’s contentions, an issue which derives its force from or involves the interpretation of any provision of the Constitution. What there is asserted are arguments which seem to be extra‑constitutional and as your Honour said in Jesus Case it is not to the point to raise those arguments on applications for removal under section 40, the focus of which is narrower and which starts with the Constitution.

As to whether there is a matter that arises because it may be urged that the magistrate erred in dealing with the procedure in the way he did, the only matter that was then extant was the proceeding before the magistrate.  As our learned friend has accepted, that procedure has been disposed of.  There has been no appeal.  The Justices Act (Qld) provide for an appeal to be instituted within one calendar month of the decision. There has been no such appeal and there are no other proceedings extant in which this issue, to the extent that one can identify an issue, can be said to arise. That is why we say that it seems to us, with respect, that our learned friend’s submissions are that the relevant cause or matter that is sought to be removed is the actual application for removal itself, and that is not what section 40 is concerned with.

HIS HONOUR:   Yes.

MR KEANE:   Your Honour, in short, that is what we would say in answer to the questions your Honour has raised with us.  Apart from that we rely upon the matters in our summary of argument.  Unless your Honour has something further specific to raise with us, those would be our submissions.

HIS HONOUR:   Yes, thank you, Mr Solicitor.  Now, Mr Fitzgibbon, do you wish to add anything in answer to what has been put?

MR FITZGIBBON:   Only to draw your Honour’s attention to Part IV of those questions that in fact Mr Delphinus did seek and in that, your Honour, he said, of course, reasons why the cause pending in the court below should be removed to the High Court.  In short, those four questions involve matters which – and one of them, in fact, refers to Sue v Hill and, in my submission, the point at issue at the time that the magistrate decided to go on and simply disregard the documentation he had been given, there was very much matters of constitutional validity.  They were very valid and I say that they still remain, and I say that what has happened is the magistrate by choosing to disregard those provisions of the Act in fact has raised the very relevant issue as to under what circumstances one may simply choose to disregard the statute itself.

HIS HONOUR:   Do you accept that the proceedings on the complaint and summons that were before the magistrate are now at an end?

MR FITZGIBBON:   No, your Honour, I say that the magistrate had no power to determine them, so I say they are not at an end for that reason.

HIS HONOUR:   But do you accept that he purported to determine them, of course?

MR FITZGIBBON:   He purported to determine them, your Honour, yes.

HIS HONOUR:   What do you say then about Justice McHugh’s decision in Stubberfield 70 ALJR 646, where removal was sought, the matter then pending in the Court of Appeal of Queensland. The Court of Appeal went forward to hear the matter and deliver a reserved judgment and Justice McHugh refused to remove it on bases including the basis that there was nothing to remove.

MR FITZGIBBON:   I hear that, your Honour.  I believe there are two answers to that.  Here we have – and we are not dealing with the Court of Appeal and your Honour would know that because of our hierarchical structure when a matter has been dealt with by a superior court like that, then there arises - I will not say it is a presumption but there certainly arises the issue that it is a matter that they will not deal with lightly, and we are not dealing with that here.  We are dealing with a magistrate who chose to go straight ahead.

The other issue, your Honour, is this, that I revert, and I do not want to sound like a broken record, but in fact I say that the magistrate had no

power to deal with it in the circumstances and the way he did.  Thank you, your Honour, unless there is anything further?

HIS HONOUR:   No.  Thank you, Mr Fitzgibbon.

The applicant seeks an order under section 40 of the Judiciary Act 1903 (Cth) in the following circumstances. On 1 October 1998 a complaint and summons was brought in the Magistrates’ Court of Queensland at Noosa by which the respondent, the Chiropractors and Osteopaths Board of Queensland, alleged that the applicant had breached by-law 23 of the Chiropractors and Osteopaths By Laws 1990 (made under the Chiropractors and Osteopaths Act 1979 (Qld)).

On 30 March 1999 the applicant gave notice to the Attorneys-General of the Commonwealth and the States under section 78B of the Judiciary Act that he contended that certain constitutional questions arose in that proceeding. On the same day he lodged notice of motion in the Brisbane Registry of this Court seeking an order under section 40 of the Judiciary Act.

On 31 March 1999, in circumstances that may not be fully revealed by the material before me, a magistrate proceeded to hear the complaint and summons.  According to the applicant’s summary of argument he attended the court with his solicitor on that day and, as I understand it, sought to have the magistrate adjourn the proceedings pending the determination of the application for removal into this Court.  This the magistrate declined to do and, at that point, the applicant and his solicitor withdrew and took no further part in the proceedings in the Magistrates’ Court.  The magistrate determined the matter, imposed fines on the applicant and ordered him to pay costs.

Section 40 of the Judiciary Act provides, so far as is presently relevant, that:

Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court other than the High Court or in a court of a State or Territory may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit…

It is to be noted that the power of the Court under section 40 is confined to ordering removal of a cause or part of a cause pending in a court of a State “at any stage of the proceedings before final judgment”. The applicant contends that the magistrate should not have proceeded to judgment as he did. It is submitted that in doing so the magistrate acted contrary to the provisions of section 78B of the Judiciary Act which, so far as presently relevant, obliged him to proceed no further.

I need express no view upon whether the magistrate was correct to proceed as he did in the circumstances of the case that then presented before him.  For present purposes what is of critical importance is that the magistrate has given final judgment in the cause that was pending in the Magistrates’ Court of Queensland at Noosa.  That being so, there is no power in the Court to make an order for removal.  The application is dismissed. 

Mr Solicitor?

MR KEANE:   Your Honour, we would ask for an order for costs.

HIS HONOUR:   Yes.  Are you in a position ‑ ‑ ‑

MR KEANE:   In our submission, costs follow the event.

HIS HONOUR:   Yes.  Mr Fitzgibbon, are you in a position to resist an order for costs?  Mr Fitzgibbon?

MR FITZGIBBON:    Yes.  Yes, your Honour.  I am sorry, I was not ‑ ‑ ‑

HIS HONOUR:   Are you in a position to resist an order?

MR FITZGIBBON:   The normal course – I really, as much I would like to say “yes”, I cannot.

HIS HONOUR:   Yes.  The application will be dismissed with costs.  I will certify for the attendance of counsel in chambers. 

MR FITZGIBBON:   If your Honour pleases.

HIS HONOUR:   Call the next matter.

AT 10.11 AM THE MATTER WAS CONCLUDED