Elston v Commonwealth of Australia & Anor

[2012] HCATrans 76

[2012] HCATrans 076

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B46 of 2011

B e t w e e n -

DR GUY N ELSTON

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

NATIONAL HEALTH AND MEDICAL RESEARCH COUNCIL

Second Defendant

Directions hearing

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 MARCH 2012, AT 10.16 AM

Copyright in the High Court of Australia

DR G.N. ELSTON appeared in person.

MR P.G. BICKFORD:   May it please the Court, I appear for the first defendant.  (instructed by Clayton Utz Lawyers)

HER HONOUR:   There is an issue about the appropriateness of the joinder of the second defendant?

MR BICKFORD:   That is so, your Honour.

HER HONOUR:   Thank you.  Gentlemen, the matter I think was only set down for directions as to the future conduct of this matter, so I wondered whether the parties, particularly the plaintiff, Dr Elston, are ready to argue the question of remitter.  I say that because my inclination, having read the submissions and the material, is that the matter ought to be remitted, but I would not press for the matter to be argued this morning if the parties were not prepared for that.  Dr Elston?

DR ELSTON:   Your Honour, I believe I have something I would like to say which may be considered by the Court prior to that decision.

HER HONOUR:   Yes, but my question really is whether you are in a position to argue the question of remitter today.  I do not want to force you on to an argument about it if you did not come to the Court ready to argue it today, because as I understand the matter was only set down for directions as to hearing dates for the various applications that the first defendant has put on.

DR ELSTON:   I see, your Honour.  I have no objection to the matter being remitted.  However, with your Honour’s permission I would like to say something on the record which may have a bearing on that.

HER HONOUR:   Yes, very well.

DR ELSTON:   Should I speak now?

HER HONOUR:   Yes.

DR ELSTON:   Thank you.  I have prepared a speech; I will read it, if that is all right with your Honour.

HER HONOUR:   Well, I should tell you that courts are not the forum for speeches.  In courts you make submissions about matters which are relevant.  The matter which is relevant at the moment is remitter, whether the matter ought to be remitted.  The matter that stands out most importantly as relevant to the question whether the matter ought to be remitted to the Federal Court or some other court is that there are numerous potential facts in issue.  You say that yourself in your submissions. 

The High Court is not really a trial court.  It can but does not often determine facts itself.  Other courts – the Federal Court and the Supreme Courts – are better placed to determine those issues and the matter can, of course, come back up to the High Court through the appeal system, but we really hear appeals and matters of constitutional importance usually in our original jurisdiction. 

It is usually in the usual course that a matter like this would be remitted because you open up potentially a large number of facts to be determined and a trial judge in another court would have the time - in particular the time to enter into that.  Is there anything that you wish to say about the question of remitter?

DR ELSTON:   At this point in time specifically in relation to the remitter, no, your Honour, but from my point of view as I see things there may be a matter of law which would help us determine whether the first defendant – whether the second defendant, I beg your pardon – should actually be a party to this matter, and as I see it, your Honour, that turns on common law versus statute so I have prepared something to say.

HER HONOUR:   Well, I think that is a matter which could be determined by the remitting court when it hears the applications.  I do not think there is much point in me going into the question about the joinder of the second defendant.  It can be conveniently dealt with I think when the first defendant’s applications to strike out and for orders for judgment in its favour are determined.

DR ELSTON:   I see.  Well, in relation specifically to remitter, your Honour, if I may say something?

HER HONOUR:   Yes.

DR ELSTON:   This has been a six‑year journey for me, your Honour, and it has taken a financial toll.  In a practical sense, from my perspective, if the matter were remitted to the Federal Court there is then a possibility, as it has been explained to me, if, for example, in the first instance it were heard by a single Justice that the matter could be appealed to three Justices, for example, and then once again the matter could be appealed to the High Court.  In a practical sense, as a man going through this experience, I was hoping that the Court might help me reach a final resolution in this matter sooner rather than later.

HER HONOUR:   I am sure you would appreciate that there are, however, limits to – there are only a certain number of Justices on the High Court and our time is spread very thinly over a large number of matters and whilst we are sympathetic to people wishing to remove one appellate level it cannot always accommodate the number of people.  I mean, you would not be alone perhaps in seeking that, but it is difficult for the Court to accommodate what you wish.

DR ELSTON:   All right, your Honour, I hear what you are saying.  I do have a piece here in relation to remit which I believe is a judgment made by the Court.  Can I read that out please?

HER HONOUR:   Well, if you tell me the name of it.

DR ELSTON:   Yes, certainly.

HER HONOUR:   It is a judgment of the Court, is it?

DR ELSTON:   Yes, your Honour.  State Bank of New South Wales v Commonwealth Savings Bank of Australia 154 CLR.

HER HONOUR:   What is the page number?

DR ELSTON:   In particular I refer to page 586.

HER HONOUR:   Is it just a passage you wish to read from that?

DR ELSTON:   Yes, that is correct.

HER HONOUR:   Yes, well, perhaps if you read it?

DR ELSTON:   Excuse me if I mispronounce some of the names in these hearings.  I quote:

In Pozniak v. Smith (12) the majority of the justices who sat to hear that case cited with approval the observation of Brennan J. in Robinson v. Shirley (13) that the power of remitter “is intended to facilitate the course of litigation rather than to enhance or diminish a plaintiff’s rights or correspondingly alter a defendant’s obligations”.

I will then skip over quite a few sentences, your Honour, into the next paragraph, the mid of the next paragraph and quote directly:

The Court should not, by making a remitter, alter the rights of the parties.

Your Honour, I would like to say that on humanitarian grounds it is becoming increasingly more difficult to pursue this matter, both financially and in terms of committing time to it, in the absence of any salary.

HER HONOUR:   I do not think though, looking at the question of your rights in connection with the litigation that there would be any alteration effected by a remitter.  It might rarely arise in some cases but it does not arise in this case.

DR ELSTON:   In terms of rights, your Honour, but in terms of the actual time to enable me to come before a court, sustain myself financially, to allow the procedure to follow through.

HER HONOUR:   Yes.

DR ELSTON:   As I said, your Honour, I have no objection to the matter being remitted, but I would wish that your Honour would consider that – that the Court would consider that.

HER HONOUR:   Yes, thank you.

DR ELSTON:   Thank you, your Honour.

HER HONOUR:   Mr Bickford.

MR BICKFORD:   Your Honour, in our submission, it is entirely appropriate to remit the matter.  We were hoping ‑ ‑ ‑

HER HONOUR:   You say to the Federal Court?

MR BICKFORD:   Federal Court, yes.

HER HONOUR:   Is that because simply the Commonwealth is a party?

MR BICKFORD:   Well, that is part of it.  The Federal Court is as well equipped as the Supreme Court to deal with the proposed causes of action, as I read them, your Honour.

HER HONOUR:   Yes.

MR BICKFORD:   In terms of timing, I cannot comment on whether you would get a quicker hearing in the Supreme or the Federal; I am not sure what the commitments are, but I do not think there is a great delay in the Federal Court.

HER HONOUR:   In either court, yes.

MR BICKFORD:    No.  So I do not think that is much of a factor, and the Federal Court is well equipped to deal with whatever issues come up.

HER HONOUR:   In terms of the applications that the first defendant brings I would have thought those courts would be in a position to determine them rather more readily than a Justice of this Court.

MR BICKFORD:   Yes, we will renew them there.  We were hoping your Honour might be able to deal with the second defendant question but that can also be dealt with by the court who receives the remitter.

HER HONOUR:   Yes.

MR BICKFORD:   So there is no other issue really.  The only other thing, I was instructed to seek costs but that was because Dr Elston was opposing the remitter.  He now tells us he is not, but we have had to incur some costs to be here today.   There seems to be no difficulty with the Federal Court dealing with it.  In the last matter of this kind that I did Justice Callinan reserved the costs to the Federal Court, and I do not think there was a problem with taxing the costs in the event that the Commonwealth was successful in the finish, or whichever party was successful in the finish.  I do not think there was a problem with taxing the costs.  There is not a particular rule that deals with it in the High Court Rules apart from rule 1.05 provides that ‑ ‑ ‑

HER HONOUR:   The matter would be taken to have been remitted from its commencement, would it not, for the purpose of costs?

MR BICKFORD:   Yes, I think that is right, your Honour.  Yes, I just have not been able to find an authority on the point, but 1.05 says:

If a proceeding, or part of a proceeding, is remitted by the Court to another court, the Rules of that other court govern all steps ‑ ‑ ‑

HER HONOUR:   “after the order for remitter”.

MR BICKFORD:   Then order 51A of the Federal Court Rules deals with matters remitted by the High Court and provides that rule 2A, all other court rules apply to a matter remitted by the High Court to the extent that they are not inconsistent with this order.  The court gives directions – rule 4 - any orders of the court are subject to orders that have been given by the High Court, so the High Court could give directions about the further conduct but that is not something ‑ ‑ ‑

HER HONOUR:   It is not usually undertaken.  It is regarded as an interference with the remitting court’s ability to direct procedures.

MR BICKFORD:   Yes, and supervise its own list, yes.

HER HONOUR:   I wonder though whether the question of costs would be clarified by making the costs of the application today costs in the proceedings in the remitting court.

MR BICKFORD:   That is probably right.  Yes, that should definitely cover ‑ ‑ ‑

HER HONOUR:   That then involves no decision on the part of the judge of the remitting court.

MR BICKFORD:   No, quite so.  Thank you, your Honour.

HER HONOUR:   Yes.  Do you understand what we have been discussing about costs?  The costs of today – the first defendant does not now seek an order for the costs involved in the application to the Court today.  That leaves the question of how they are determined later, given that it is remitted to the Federal Court, and what I have been discussing with Mr Bickford is that I make an order which has the effect that the costs of today will follow the outcome in the Federal Court so that if you are successful you recover your costs of today and if they are successful they recover their costs of today.

DR ELSTON:   I believe I follow what was said, your Honour.

HER HONOUR:   Yes.

DR ELSTON:   If I could also say, just to clarify a point, I do not believe that I have opposed this matter being remitted to the Federal Court.

HER HONOUR:   I think your written submissions might have indicated that, but in any event the first defendant is not taking that point against you.

DR ELSTON:   Okay, thank you.

HER HONOUR:   Thank you. 

The plaintiff has filed proceedings in the original jurisdiction of this Court seeking orders for damages against the Commonwealth and another.  His claims are for damages for lost personnel support and lost research support and for defamation.  Their nature and the basis for them is not easy to discern.  They appear to arise out of the withdrawal of research grants.  The agreements relating to the grants are not before the Court, but the first defendant says, by reference to a pro forma agreement for such grants, that the plaintiff is named as the award recipient in connection with the grants and the University of Queensland as the institution for the purposes of administering the grant and that the agreement is between the Commonwealth and the University of Queensland.

Two further facts seem uncontroversial.  They are that the University of Queensland subsequently terminated the plaintiff’s employment and that the grant was withdrawn. 

The first defendant has filed a summons seeking orders that the action be stayed or that judgment be given in its favour or that the statement of claim be struck out.  In summary, it claims that no cause of action against it is disclosed.  The plaintiff’s claims appear to be directed to his relationship with the University of Queensland and the actions of that institution.

The first defendant also seeks remitter of the matter.  The plaintiff, whilst initially apparently opposing remitter on the basis that the Commonwealth is a party to the agreement for funding and that there were important issues of fact to be tried, now does not oppose remitter to the Federal Court of Australia. 

The other order sought by the first defendant is that the second‑named defendant be removed as a party from the proceedings.  It seems to me to be convenient that the Court hearing the first defendant’s applications deal with that question.

The orders that I would then make are that:

1.The proceeding be remitted to the Federal Court of Australia, Brisbane Registry.

2.The proceeding continue in that court as if the steps already taken in the proceeding in this Court had been taken in that court. 

3.The Registrar of this Court forward to the proper officer of the Federal Court photocopies of all documents filed in this Court.

4.The costs of the summons be costs in the proceeding.

5.The costs of the proceeding to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to the Federal Court of Australia and in the discretion of that court.

Yes, thank you, Dr Elston, Mr Bickford.

AT 10.32 AM THE MATTER WAS CONCLUDED