Higgins v Commonwealth of Australia

[1996] HCATrans 302

IN THE HIGH COURT OF AUSTRALIA

Registry  No C17 of 1994

B e t w e e n -

BARRY THOMAS PATRICK HIGGINS

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 OCTOBER 1996, AT 11.27 AM

Copyright in the High Court of Australia

MR G.C. CORR:   May it please the Court, I appear for the plaintiff.  (instructed by P.B. Christensen, ACT Welfare Rights & Legal Centre)

MR G. GRIFFITH, QC, Solicitor‑General for the Commonwealth:   I appear with my learned friend, MR H.C. BURMESTER, for the Commonwealth, your Honour.  (instructed by the Australian Government Solicitor)

MR D. GRAHAM, QC, Solicitor‑General for the State of Victoria:   If your Honour pleases, I appear on behalf of the Attorney‑General for the State of Victoria intervening in support of the Commonwealth.  (instructed by R.C. Beazley, Victorian Government Solicitor)

HIS HONOUR:   Mr Corr.

MR CORR:   Yes, your Honour.  This is an application for a case to be stated pursuant to section 18 of the Judiciary Act in relation to a matter which is before this Court.  The short facts of this matter are that the plaintiff ‑ ‑ ‑

HIS HONOUR:   I have read the papers and I am not much impressed by the formulation of the stated case.  It does not seem to me to raise the issues in the form in which it may be desired to have this Court’s decision.  For example, I see no relevance in the finding which was made by the Administrative Appeals Tribunal to any issue which this Court might have to determine.  Perhaps you could explain to me what relevance that has.

MR CORR:   From our point of view, that this just shows that the plaintiff has exhausted his administrative remedies and that there is a reason coming before the Court, that it is not premature.  The attachment of the decision of the Administrative Appeals Tribunal was made at the suggestion of my friends from the Commonwealth, that that was something which they wished to have appended to it.  It was not something that the plaintiff considered.

HIS HONOUR:   You are seeking simply a declaration that the relevant section of the Act is invalid.

MR CORR:   Yes, that is correct, your Honour.

HIS HONOUR:   Well, does that not turn simply upon the provisions of the Act?

MR CORR: Yes, your Honour, and whether it is ultra vires the Constitution or any implied right arising from the Constitution.

HIS HONOUR:   And if it is invalid, what relief does that entitle you to?

MR CORR:   That normally with declaration being against the Commonwealth, that the body would take that into account, that that is, in fact, invalid and that there would, I assume, be a redetermination of the plaintiff’s application for Social Security benefit, that it would go back to the original decision maker and that they would redetermine it in accordance with law.  I think that there has been the procedure in this Court that ‑ ‑ ‑

HIS HONOUR:   He would be entitled to a Newstart allowance under some other provision of the Act if section 634 were eliminated.

MR CORR:   Well, he is entitled other than for the operation of section 634, that that is something which disentitles him, that he is otherwise entitled, and that his application could then be dealt with by the proper officer in the Department of Social Security.

HIS HONOUR:   Then it is assumed that if section 634 falls, that the other section would not?

MR CORR:   Section 634 is a specific provision relating to a disentitlement where a person moves from an area of high employment to low employment without reasonable grounds and those reasonable grounds are very specifically defined within there.  It is something which removes a right which is existing from other provisions of the Act.

HIS HONOUR:   Yes, well, as I say, I am not much enamoured of the stated case in its present form, but I will hear what the Solicitor‑General has to say.

MR CORR:   Yes, your Honour.

MR GRIFFITH:   Your Honour, we had, if I may use the expression, Pirone-like anxieties with respect to this.  The statement of claim, your Honour, to put it bluntly, is a mess.

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, for example, the prayer for relief claims that the legislation is invalid contravening section 92 and section 117, and then there is also a claim that the legislation is in contravention of various treaties, State Acts, other Acts and legislation and we just do not understand that in a prayer for relief at all.  The other declarations sought, your Honour, seem to us to be inappropriate as well.  We are also unhappy with paragraph 6 of the draft which merely says “the plaintiff alleges reasons” and one reason we suggest that the tribunal’s decision might be annexed, your Honour, at least it gives some content to those factual aspects.  But we feel very uncomfortable about the whole attempt to get the matter after two years almost after the issue of the writ into Court in this way.

HIS HONOUR:   Well, I must say it seems to me that there is a lot to be said for the redrafting of the statement of claim in a form which can be properly manageable.

MR GRIFFITH:   We would say a lot to that, your Honour, but it is not for us to draft it.

HIS HONOUR:   I appreciate that.

MR GRIFFITH:   Yes.  We just tried to do our best with what is pleaded at us, your Honour.

HIS HONOUR:   Yes.  Well, if that is the best that can be done, it is, I am afraid, something which I do not think is yet in the form which I would like to trouble the Full Court with.

MR GRIFFITH:   Your Honour, could we make another observation in so much as a claim on section 92.  We would have thought the claim would be, in so far as the law applies to the plaintiff, it would be invalid so that it is necessary to flesh out the bare bones of the allegation.

HIS HONOUR:   That is a matter for the plaintiff, no doubt, to formulate his case in such a manner as he sees fit but at the end of the case stated at the moment, the question that is suggested is, “Is section 634 invalid?”, and that is something which ‑ ‑ ‑

MR GRIFFITH:   Your Honour, we shuffle our feet uncomfortably, but, your Honour, one wonders whether we should not have a Pirone-like solution here and remit it off.  There is no reason why a constitutional issue cannot run before a single Judge to grapple with this, rather than this Court to be bothered.  We thought perhaps the case had died but it has not and we frankly feel that your Honour has got better things to do than to help settle these difficulties and I hope you understand, your Honour, that we take the view it is not for us to draft a perfect statement of claim to then plead to.

HIS HONOUR:   No.  Well, I will see what Mr Corr has to say about that suggestion.  Mr Corr, you can see the difficulty with the statement of claim, of course.

MR CORR:   Yes, I have been instructed that the statement of claim was, in fact, originally drawn by the plaintiff which perhaps may be the reason for that.

HIS HONOUR:   I am not being critical of the plaintiff and his desire to seek relief.  All I am saying is that in order that the Court might deal efficiently with it, the statement of claim is not in a satisfactory state.

MR CORR:   Yes, your Honour.

HIS HONOUR:   The same observation can be made with regard to the draft case stated.

MR CORR:   Yes, your Honour.

HIS HONOUR:   So, the question really is, what should be done about getting the action into a managable state and should the matter be remitted to some other court to trial?  Is there any real reason why it cannot go, for example, to the Federal Court for determination?

MR CORR:   No, your Honour, if that is considered to be an appropriate manner of dealing with it.  As my friend has pointed out, it is open to other courts to make these determinations and if your Honour considers that as appropriate, we would agree to that course.

HIS HONOUR:   Yes.  I must say my one reservation about it is that I do not like sending something off to another court in the state in which this action is.

MR CORR:   Yes, your Honour.

HIS HONOUR:   Is it possible for the statement of claim to be redrafted before it goes?

MR CORR:   Yes, I think there could be some attempt made at that, your Honour, to clarify what, in fact, is sought.

HIS HONOUR:   All right.  Well then, if I give directions that the statement of claim be amended as you may be advised within say, 28 days

or 56 if you wish, and that upon the amendment of the statement of claim, the matter be remitted to the Federal Court to hear and determine the matter.

MR CORR:   If it please the Court.

HIS HONOUR:   Do you have anything to say about that, Mr Solicitor?

MR GRIFFITH:   No, your Honour.  Would it be necessary to have another appearance or can it just go off once from here?

HIS HONOUR:   It could just go off I should think; in other words, once the statement of claim is amended.

MR GRIFFITH:   Well, your Honour, it was issued here so it would probably go off to the Federal Court here and it seems to be - Mr Corr is here and we are.

HIS HONOUR:   It will be remitted to the Federal Court which no doubt would dispose of the matter, I would think, in the Canberra registry of the court.

MR GRIFFITH:   Your Honour, it might be back in the next millennium, but your Honour will not be here and perhaps I will not either.

HIS HONOUR:   I do not know whether that is something which I look forward to with unqualified alacrity.  I will make that order then, Mr Corr, unless Mr Solicitor for Victoria has anything to say?

MR GRAHAM:   No, your Honour.  All I wish to do is to say we will confine our intervention to the proceedings in this Court.

HIS HONOUR:   Yes.  That is a matter entirely for you, Mr Solicitor.

MR GRAHAM:   Thank you, your Honour.

HIS HONOUR:   In the circumstances, how long would you like to amend the statement of claim, Mr Corr?

MR CORR:   The 28 days should be sufficient for that, your Honour.

HIS HONOUR:   Yes, very well.  I direct that the plaintiff have liberty to amend the statement of claim as he may be advised within 28 days and that forthwith upon the amendment of the statement of claim, the filing of it and

the service on the defendant, the action be remitted to the Federal Court of Australia to hear and determine.

MR CORR:   If it please the Court.

HIS HONOUR:   The Court will now adjourn.

AT 11.39 AM THE MATTER WAS ADJOURNED