Goodfellow v The Commonweatlh of Australia

[1990] HCATrans 91

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IN THE HIGH COURT OF AUSTRALIA

Registry No C3 of 1980

B e t w e e n -

FREDERICK WILLIAM GOODFELLOW

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions hearing

McHUGH J

( In	Chambers)
Goodfellow

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 MAY 1990, AT 9.42 AM

Copyright in the High Court of Australia

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MRS. GAGELER: If Your Honour pleases, I appear for the

defendant in the matter and the applicant on the

summons to remit. (instructed by the Australian

Government Solicitor)

HIS HONOUR:	Yes, and you appear in person, Mr Goodfellow.
MR F.W; GOODFELLOW:	Thank you, Your Honour, yes.
HIS HONOUR:	Mr Gageler.
MR GAGELER:	If Your Honour pleases, this is an application

for the matter to be remitted to the Federal Court

pursuant to section 44(2A) of the JUDICIARY ACT.

The matter has a long and unfortunate history.	I
think it is sufficient to say that it is now the
desire of both parties that it be dealt with
expeditiously.

HIS HONOUR:	Yes.
MR GAGELER:	A further amended statement of claim was delivered pursuant to an order of Mr Justice Deane, made by
consent on 13 February 1990 and a defence was
delivered on 3 May.

HIS HONOUR: Perhaps I might ascertain Mr Goodfellow's

attitude. Mr Goodfellow, what do you say about

remitting the matter to the Federal Court?

MR GOODFELLOW:  I strongly resist the remitter action,

Your Honour.

HIS HONOUR:  Yes, well, Mr Gageler, I think at this stage I

might hear what the grounds of opposition are.

Yes, Mr Goodfellow.

MR GOODFELLOW:  Your Honour, my submission is based in a

large part on the chronology of events that have

happened and in this I have prepared some notes

that may save the Court considerable time if I

simply hand them up.

HIS HONOUR:  Yes, certainly.

(Continued on page 3)

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Goodfellow
MR GOODFELLOW:	Your	Honour,	I will briefly go through

the first part and then, if Your Honour pleases, the

chronology of events can be simply read by yourself.

HIS HONOUR:	Yes.
MR GOODFELLOW:	At a hearing of a summons taken out by the

defendant to strike the plaintiff writ many years

ago Sir Harry Gibbs, the then Acting Chief Justice,

said, "The business of this Court does not permit it to take the time that is involved in hearing matters in original jurisdiction, unless they happen to have

some special feature that warrants being heard here". that warrant this matter being heard in the

High Court and at the end I would ask that consideration

of any remitter be delayed until a special case has

been settled between the parties.

In the light of the chronology of the events

that have happened I submit (a) that it would be

unfair and unjust to the plaintiff to remit the
matter and (b), although the matter is in the original
jurisdiction of the Court, the substantive issues

are appropriate for consideration of the Court as if

the matter were in the appellate jurisdiction and
(c) the summons of the defendant is unnecessary and
may tend to delay determination of the matter, and

I further submit that the matter is suitable for

determination by the High Court as a special case to

determine the law.

Before I conclude my comments, Your Honour,

would you like to peruse the chronology of events?

HIS HONOUR:  Well, I have read the whole file, so far as in the High Court. I had a look at it last night.

(Continued on page 4)

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Goodfellow

HIS HONOUR (continuing):  Well, Mr Goodfellow, what is there

special about this case that should take it out of

the general run of cases?

MR GOODFELLOW:  Your Honour, in referring to my page 9, I

was led into this whole litigious process by a

determination of the Commissioner for Employees

Compensation.

HIS HONOUR:	Yes.
MR GOODFELLOW:	I was invited to take this complaint to the

compensation tribunal and this inexorably led to

a blind alley of jurisdiction through no fault of

my own. I went through all the avenues of the court

below and, as I say, I now seek the assistance of

this Court.

To go back, albeit with the jurisdiction

of the High Court, could mean a restart at the
bottom of the ladder and without the possibility

of excluding arrival back in this Court. In the

light of these events, I submit that that would be

unjust and the most expeditious way to resolve this

whole tortuous matter would be by special case in

this Court.

HIS HONOUR:  Well, that depends whether or not a special _

case can be agreed on by the parties. There may be

facts in dispute. But, a statement of claim has been

filed; defence has been filed. There does not seem

to me to be anything special about the case as to

why this case shoeld be• given preference in this

jurisdiction over other cases which are started in

the court and are remitted either to the State courts

or the Federal Court.

MR GOODFELLOW:  Your Honour, may I continue. I alluded to

other reasons, Your Honour, why - that is only the

injustice reason. At the back of this submission

is a third draft special case that the parties have

been working towards since 1983. A careful perusal of the chronology will show that up until 1987, the parties were working towards the special case. The

emphasis shifted then to settlement but in the

absence of settlement, it was never abandoned that

we would decide this matter on a special case in

this Court. Now, I show that the issues ar~ clearly

set out in the draft special case and in the further

amendment to statement of claim. At one point, theofficer

assisting the defendant in the Australian Government

Solicitor's office and I agreed on all the facts

in the further amended statement of claim. There were

some that re~uired a great deal of clarification. This

was done deliberately to prepare a special case.

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Goodfellow

HIS HONOUR:  Yes, but the fact that there is a special

case does not mean that it is a proper case

to be heard in this Court.

MR GCX)DF'ELLCM:  Q~ite so, Your.Honour. Then continuing,

there is a question of whether any deduction in

the case was lawful at all.

HIS HONOUR:  Yes, I appreciate -

~. GX)DFEI..I .. .CM: It would be argued that · Part VI of the Compensation

Commonwealth Government Employees Act 1971 does not apply and that does not authorize any

deduction, and this calls into question the

practice of the Australian Government Solicitor.

Now what was done was an arbitrary deduction and,

as it will be submitted, without any statutory

authorization at all - even the Commissioner for

Taxation when he takes your money, gives an assessment that is amenable to review under administrative law. The Commonwealth has gone

to a great deal of expense and trouble to show

that there is no administrative remedy in its
arbitrary action. That is an issue, I feel,

that sets it slightly apart.

HIS HONOUR:  Yes, I just might ask - Mr Gageler, you might

just briefly tell me	the grounds upon which
you rely.

r1R GAGELER:	Your Honour, there is a substantial dispute of fact between the parties. There are two claims:
the first concerns the lawfulness of the
Commonwealth deduction of the sum of $30,000 from
the judgment sum paid to the plaintiff. The
second appears to be based . ,on a tortious breach
of statute or a tortious abuse of process on the part of the defendant in filing a notice of
appeal and then discontinuing that appeal.
Involved in the second claim are allegations of
bad faith on the part of the defendant. Those
matter in the second part of the statement of claim
could not be the subject of an. agreement between
the parties.

The suggestion in 1983 that the matter be

dealt with by way of special case related only to

the first part of the pleadings and not the second

part. The plaintiff has persisted in pursuing the

second part of the pleadings. The issues of law -

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HIS HONOUR:  Could you just take me to the part of the

statement of claim which raises this,please.

MR GAGELER:  Paragraphs 20 to 42, in particular paragraphs

21 to 23 and then again and more substantially

paragraph 37 and 38.

HIS HONOUR:  Yes. Is there anything further you want to

put in support of that?

MR GAGELER:  Well, just that the issues of law are not

such as to warrant it be kept in this Court,

Your Honour.

HIS HONOUR: Well, Mr Goodfellow, what do you say in reply to

those.

MR GOODFELLOW: First, Your Honour, the question of a deduction

is a question of law, whether it was authorized

or not, and I think that was arrived at in both

the further amended statement claim and the draft

special case. As to the second cause of action

I believe those contentious allegations are

not referred to in the draft special case. They - - -

HIS HONOUR:  I know, but that is the whole point of the matter.

This is an action which claims the reimbursement

of a sum of money, or perhaps two sums of money,

and, in addition, there is an allegation of tort

in which you allege, paragraph 21 of your amended

statement of claim, that the defendant caused you

physical and financial damage and, in addition,

you allege that the defendant without reasonable

and probable cause appealed against the judgment

and d,amages. These all raise questions of fact

which are singularly inappropriate to be tried in

this Court.

MR GOODFELLOW-:  I would point out to Your Honour that the

second cause of action is, if the plaintiff

obtains redress on the first cause of action

simply because - - -

HIS HONOUR:  I appreciate that, it is pleaded in the alternative

but the first claim may fail.	Both issues should
be determined together.	Your have made the point

that the matter has been before the Court for years

and these issues cannot be segregated.	They have
got to be heard together.

(Continued on page 7)

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Goodfellow

:MR GOODFELLOW:  With respect, Your Honour, the first cause

of action could be decided without difficulty,
there is nothing insurmountable or absolutely

contentious in that.

HIS HONOUR: Well, that may be, let that be accepted, but

if you fail on that particular issue then the

second element would have to be heard. It is far

better that the whole matter be disposed of

at once. Is there anything further that you would

like to add to the - - -

:MR GOODFELLOW: There is a third point, Your Honour,

why it ought to be heard. As the Commonwealth has

wished to construe the COMPENSATION ACT, without

any allowance for deduction of tax already paid,

its action increases the national revenue and

this must be explained. It will be submitted that

it cannot be characterized as a fee, a licence or

a penalty and can only be argued and explained

on the basis that it was a tax and with the result

that section 55 of the CONSTITUTION,restraint on

power, is offended. That could result in the

Commonwealth being without any remedy to recover

compensatinn.	I suggest that has far-reaching
effects.

HIS HONOUR:  Yes.

:MR GOODFELLOW: That is my second argument. Your Honour, so

far as the Commonwealth's action in taking out this
summons, the plaintiff has done everything to

prosecute this matter without a great deal of

co-operation from the Commonweal th over the last year.

Now, the defendant was aware that the question of

remitter had to be considered at some stage. We

were both informed by the Registrar, and it was

understood that the question would not arise until

all avenues to settle a special case were

investigated. I have done all I could do; the

Commonwealth has not seriously considered the
special case.	I submit that this summons was quite

unnecessary, it has caused some physical distress
and for whatever tactical reasons the defendant wishes
the remitter, this remitter would have the real

possibility of increasing the cost and delaying

determination of this litigation. I do not think I

can usefully add, Your Honour, other than that

I would ask the Court to seek the co-operation of the

defendant in settling a special case so that these

difficulties could be overcome. If my further

amended statement of claim is still deficient,

then more work could be done on that.

HIS HONOUR: Yes, well thank you,Mr Goodfellow.

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Goodfellow

HIS HONOUR: Yes. Well, thank you, Mr Goodfellow.

The Cormnonwealth, which is the defendant in an

action in the original jurisdiction of this Court

brought by the plaintiff, Mr Frederick William

Goodfellow, applies for an order that the matter be remitted to the Federal Court of Australia in the Australian Capital Territory District Registry and for consequential orders.

The plaintiff was injured in the course of his

employment with the Royal Australian Navy as long ago

as 15 May 1969. In May 1970 he was retired from the

navy as medically unfit. From that date until

18 September 1978 he is alleged to have received from

the Cormnonwealth $39,566.81 in compensation payments

for his injury pursuant to the provisions of the

COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT,

1971 and $3,954.04 in payment of his medical expenses

pursuant to that Act. In February 1974, the

Cormnonwealth began to deduct pay-as-you-earn tax

deductions from the plaintiff's compensation payments.

It is alleged that a total sum of $7,747.80 was

deducted.

On 30 March 1978, in an action in the Supreme

Court of New South Wales, the Cormnonwealth was found

liable for negligence in respect of the injury

suffered by the plaintiff in 1969. The plaintiff was

awarded the sum of $189,675.00 which was the result

of a verdict for $252,900.00 less a 25 per cent

reduction for contributory negligence.

T12 In April 1978, the Cormnonwealth lodged a notice

of appeal against the judgment. However a few months

later in September 1978 the Cormnonwealth discontinued

the appeal and paid to the plaintiff the sum of

$156,973.10 which was subsequently adjusted to

$157,034.36. The Commonwealth retained the sum of

$32,640.64 from the judgment moneys - allegedly

pursuant to the provisions of the COMPENSATION

(COMMONWEALTH GOVERNMENT EMPLOYEES) ACT, 1971.

Then in July 1980 the plaintiff issued a

statement of claim against the defendant. In August

1980, the statement of claim was struck out and the

plaintiff was given leave to file an amended statement

of claim. An amended statement of claim was filed

on 24 September 1980 and a further amended statement
of claim was filed on 13 February 1990. In the action,

judgment which he recovered in the Supreme Court of New South Wales the sum of $32,640.64 or any other amount. In the alternative, the plaintiff alleges

the plaintiff claims a declaration that the

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Goodfellow

that from 15 May 1969 the defendant was a

tortfeasor, that the plaintiff was the victim of

the defendant and that the defendant caused the plaintiff

physical and financial damage. These allegations

seem linked with paragraph 37 of the statement of

claim of the plaintiff which alleges that the

defendant, without reasonable and probable cause,

appealed against the judgment of the Supreme Court

of New South Wales. Mr Gageler, counsel for the

Commonwealth, says - and it seems fairly obvious -

that the alternative claim of the plaintiff, which

alleges abuse of process, will raise substantial

disputes concerning the facts of the matter and

for that reason, among others, this action should be

tried in the Federal Court rather than in this Court.

Mr Goodfellow acknowledges that the business of this Court does not ordinarily permit it to take the

time that is involved in hearing a matter in the original

jurisdiction unless it has some special feature that

r14	warrants such a case being heard here. But he says
that he will be done an injustice if his action is tried in the Federal Court and not in this Court by
reason of the delay which has taken place in respect
of the matter. He also alleges that there are special
features in this case in that it concerns a question as to the constitutional validity of part of the
COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT,
1971 and that the first part of his case concerning
the lawfulness of the deduction of the sum of $32,640.64 does not involve any disputed questions of fact and can be conveniently dealt with by way of
a special case to the Full Court.

With the possible exception of the constitutional

issue which Mr Goodfellow raises, there is nothing

about the action which takes it outside the ordinary

run of cases which are remitted from time to time

from this Court to the Federal Court and to the courts

of the State. The delay in hearing the action is not

'15 enough.

The constitutional question may or may not

become necessary to decide but assuming in favour of

Mr Goodfellow that it is necessary to decide it,

there is no reason why it should not be disposed of in

the Federal Court with the other issues which arise

on his statement of claim.

In the circumstances, I order that the matter

be remitted from this Court to the Federal Court of

Australia in the Australian Capital Territory District

Registry. I order that the sum of money paid into

this Court by the Commonwealth on 26 October 1984 and

any accumulated interest thereon be transferred to the

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Goodfellow

Federal Court to be dealt with as if it had been paid into that court in accordance with the Federal Court

Rules. I think that the appropriate order is that

the costs of this application be costs in the cause

before the Federal Court. The matter shall proceed

otherwise as directed by the Federal Court.

Hr Gageler, is there any other order that you

seek in this matter?

MR GAGELER:  I am not sure if it is necessary to certify for

counsel in these proceedings.

HIS HONOUR:  Yes, I think it is. Mr Goodfellow, is there any

particular order that you would seek?

MR GOODFELLOW:  The question of costs, Your Honour, as I pointed

out, this summons was unnecessary since it would have

come up in the normal course of events in this Court.

I feel the cost of this summons and this hearin3 should

be borne by the Commonwealth and the plaintiff's costs

should be paid by the Commonwealth.

HIS HONOUR:  Yes, thank you. I domt propose to make any

change to the order which I foreshadowed in respect

of costs. I certify for counsel.

What about the question of the defence? There is

a summons that the Commonwealth file its defence.

MR GAGELER:  Yes, Your Honour. I treated that as having lapsed

but perhaps the appropriate order is that that be

dismissed with no order as to costs.	The defence, of
course, has been filed.

HIS HONOUR:  Yes. What do you say about that, Mr Goodfellow?

MR GOODFELLOW:  I have no objection to that, Your Honour.

HIS HONOUR:  Yes, thank you. The summons dated 23 April 1990

in which the plaintiff sought an order directing the

defendant to comply with Order 22 rule 6 of the

High Court Rules is, by consent of the parties, dismissed.

There shall be no order as to costs. Nothing further, gentlemen?

MR GAGELER:  No, Your Honour.

AT 10.15 AM THE MATTER WAS ADJOURNED SINE DIE

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