Habib v Commonwealth of Australia

[2006] HCATrans 202

[2006] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S585 of 2005

B e t w e e n -

MAMDOUH HABIB

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 26 APRIL 2006, AT 9.49 AM

Copyright in the High Court of Australia

MR C.A. EVATT:   I appear with MR W.B. NICHOLSON for the plaintiff, your Honour.  (instructed by Peter Erman)

MR T.M. HOWE:   May it please your Honour, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Evatt.

MR EVATT:   Your Honour, a writ of summons was issued from this Court on behalf of the plaintiff and he is now before the Court for summons for directions.

HIS HONOUR:   Let me just find that.

MR EVATT:   Your Honour should have a writ of summons and then there should be a – I have two.  One is marked “Summons for Directions”, the other marked “Summons”.

HIS HONOUR:   There is a summons filed 8 March seeking transfer to the Federal Court and that is it.

MR EVATT:   The summons is not quite accurate.  The plaintiff would prefer that the matter remain in this Court but, being realistic, it is unlikely that this Court will hear it.

HIS HONOUR:   Your preferred destination is the Federal Court?

MR EVATT:   Yes, and the issue for your Honour to decide, because the other side want the Supreme Court.

HIS HONOUR:   Of New South Wales?

MR EVATT:   Yes.  So that is the issue.  Does your Honour want to hear ‑ ‑ ‑

HIS HONOUR:   I will ask Mr Howe.  Why do you say this should not go to the Federal Court, if I can put it that way?

MR HOWE:   Your Honour, we have filed some written submissions.

HIS HONOUR:   I have seen them but I am not sure they are accurate.  Look at paragraph 7 on page 2.

MR HOWE:   Perhaps paragraph 7 is not particularly well expressed.  The provisions of section 44(1) ‑ ‑ ‑

HIS HONOUR:   Mr Evatt is not worried about that.  He looks at 44(2A) and 44(3).  So 44(2A) would encompass an action in tort against the Commonwealth, I would have thought, and then if remitted 44(3) would confer jurisdiction on the Federal Court.

MR HOWE:   Absolutely.  We do not contest that, your Honour, and we concede that in paragraph 9 of our written submissions.  We simply make the point that section 44(1) contemplates the existence of a pre‑existing jurisdiction with respect to subject matter and parties.

HIS HONOUR:   That is right, and that would refer one back to 39B and that is not good enough for Mr Evatt because 39B does not pick up ordinary tort cases.

MR HOWE:   That is exactly so.  Indeed, that is part of the material that we rely upon in seeking remitter to the Supreme Court of New South Wales because, but for such remitter, there is an issue as to whether or not the Federal Court of Australia ‑ ‑ ‑

HIS HONOUR:   There is no issue if I make an order under 44(2A).

MR HOWE:   That is true.  We accept that but we say one factor relevant to your Honour’s exercise of discretion as to the destination of which court to remit the matter to is that whereas the Federal Court would get jurisdiction by virtue of the remitter, the Supreme Court of New South Wales has a pre‑existing jurisdiction with respect to subject matter and parties and we say that given the absence of any material difference in the law which either court would apply, that is one factor that your Honour should weigh into the balance.

The only other matter of any substance or significance, your Honour, is that the Common Law Division of the Supreme Court of New South Wales is comprised of specialist judges whose staple diet is the adjudication of common law tortious claims and the awarding of damages.

HIS HONOUR:   They are not tortious claims of this type though.

MR HOWE:   Very often they are, your Honour, relating to such matters as assault, false imprisonment.

HIS HONOUR:   Kidnapping and assault by officers of the Commonwealth outside the boundaries of the Commonwealth.

MR HOWE:   Yes.  Well, your Honour, kidnapping itself is probably not a claim known in those terms to the law of tort.  It really does come down to fairly conventional tortious claims, albeit that the factual context might be somewhat unusual.

HIS HONOUR:   It does not, does it, because there will be considerable Pfeiffer questions, will there not?  Will not Mr Evatt have to look to the lex loci delicti of some of these wrongful acts?

MR HOWE:   Your Honour, we accept that there will be questions which either the Federal Court or the New South Wales Supreme Court would have to decide as to the applicable law, but we say that the Supreme Court of New South Wales is as well placed to adjudicate that question as to applicable law as the Federal Court of Australia.  The mere fact that some of the claims that are relied upon may relate to facts, events or acts or omissions which occurred outside Australia is not a particular factor favouring remittal to the Federal Court of Australia as opposed to the Supreme Court of New South Wales.

HIS HONOUR:   In the Common Law Division of the Supreme Court of New South Wales is there a docket system?

MR HOWE:   Your Honour, not, as I understand it, of an equivalent kind as in the Federal Court of Australia. 

HIS HONOUR:   This case cries out for a docket system.

MR HOWE:   There is the fact though that application could be made for any sort of special case management which the expedition upon which the plaintiff relies might warrant, so it is not as though the existence of a docket system in the Federal Court is something unique or exclusive to it or which would occasion ‑ ‑ ‑

HIS HONOUR:   It applies automatically here.

MR HOWE:   Yes, it does, your Honour.  By the same token, there is of course specialist case management procedures in the Supreme Court of New South Wales dealing particularly with the disposition of common law matters and those specialist case management procedures do not apply in the Federal Court.  There is no special common law tortious practice direction or specialist procedures and practices that the Federal Court of Australia has made provision for, no doubt reflecting the fact that its caseload consists largely of matters that do not pertain to that subject matter, whereas there are such specialist practices and procedures that have been promulgated in the Common Law Division of the Supreme Court of New South Wales.

HIS HONOUR:   Are you talking about medical experts and that sort of thing?

MR HOWE:   Yes, your Honour.

HIS HONOUR:   People who suffer accidents on the roads and in the factories of New South Wales?

MR HOWE:   Yes, your Honour, although ultimately the plaintiff presumably will, at least to some extent, be alleging that he has occasioned both physical and psychiatric injury.  So the question of injury is likely to loom large as an issue, notwithstanding that the plaintiff seeks to characterise the substance of his claim as other than a personal injury claim.  In truth or in reality it largely seems as though it will be a personal injury claim based upon common law tortious claims which are the staple diet of the judges of the Common Law Division of the Supreme Court of New South Wales, as opposed to the Federal Court of Australia.

Indeed, one can only surmise that the difficulty which might be occasioned in the Federal Court in assessing quantum of damage in relation to any physical or psychiatric injury that might arise from these sorts of claims of false imprisonment and the like, and whereas those sorts of ‑ ‑ ‑

HIS HONOUR:   I do not regard that frankly, Mr Howe, as an intellectual exercise of blinding difficulty that requires vast expertise, but anyhow.

MR HOWE:   Your Honour, there are questions of relativity involved and familiarity with the awards of damages claims in like sorts of cases referable to similar sorts of injuries.

HIS HONOUR:   There will not be many like cases, I suspect.

MR HOWE:   I am sorry, your Honour?

HIS HONOUR:   I do not think there will be many like cases to this.

MR HOWE:   As to the gravity of injury, there may well be as to the factual circumstances, yes.

HIS HONOUR:   If the plaintiff recovers a verdict.

MR HOWE:   Yes.  We accept that there will not necessarily be like cases in terms of the factual substratum but as to the existence of a particular injury of particular severity, it is most unlikely that the Supreme Court of New South Wales Common Law Division would not have seen similar sorts of cases, but the same cannot be said to be true, in our submission, of the

Federal Court of Australia.  But we do not put the matter any more highly than that.

HIS HONOUR:   All right.  I will ask Mr Evatt if he wants to say anything in reply.  Yes, Mr Evatt.

MR EVATT:   We would prefer the Federal Court, your Honour, and that should be taken into account.  The Federal Court is streamlined in our opinion to – on the return date a judge is appointed who usually hears the action, and the Court has power to send it to the Federal Court.  We ask for that order.

HIS HONOUR:   Thank you.  How long would the Commonwealth have to plead, Mr Howe?  Are you going to plead or ‑ ‑ ‑

MR HOWE:   Yes, your Honour, although ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ introduce some interlocutory steps to require further pleading of the plaintiff before you plead to it?  What is going to happen?

MR HOWE:   Yes, your Honour.  I imagine that there will be a request for further and better particulars and, as I understand it, there has been an agreement that the Commonwealth not be obliged to file a defence pending receipt of those further and better particulars, but they are all steps which could be pursued upon remittal of the matter to whichever court.

HIS HONOUR:   I just want to be sure that that aspect is in hand between you, and it is.

MR HOWE:   Yes, your Honour, it is.

HIS HONOUR:   Thank you.  On the plaintiff’s summons filed on 8 March 2006 I make the following orders:

1.The proceedings be remitted to the Federal Court of Australia, New South Wales District Registry, pursuant to section 44(2A) and (3) of the Judiciary Act 1903 (Cth).

2.The proceedings continue in the Federal Court of Australia as if all steps taken in this Court have been taken in the Federal Court.

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

4.        Costs of the summons filed 8 March be costs in the cause.

5.Costs of the proceedings in this Court from commencement to the date of remittal be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable in the Federal Court and in the discretion of the Federal Court.

Is there anything else, gentlemen?

MR HOWE:   Your Honour, the only matter is a housekeeping matter.  I was asked to produce a copy of the original submissions.  Would it be convenient if I handed those up to your Honour in Court?

HIS HONOUR:   Yes, thank you.  They can be filed in Court.  Very well, I make those orders on the summons and I will now adjourn.

AT 10.03 AM THE MATTER WAS CONCLUDED