Hollier, Ex parte- Re Reith

[1998] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M73 of 1998

In the matter of -

An application for a Writ of Mandamus against THE RT HON PETER REITH, MINISTER FOR WORKPLACE RELATIONS AND SMALL BUSINESS

Respondent

Ex parte -

WILLIAM EDWARD HOLLIER, ENGEN INSTITUTE and THE LIGHTHOUSE TRUST

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 AUGUST 1998, AT 10.40 AM

Copyright in the High Court of Australia

HIS HONOUR:   Mr Hollier, you appear for yourself, do you?

MR W.E. HOLLIER:   Yes, your Honour.

HIS HONOUR:   And do you seek also to appear on behalf of Engen Institute and The Lighthouse Trust?

MR HOLLIER:   I do, your Honour.

MS W.A. HARRIS:   Your Honour, I appear for the Minister.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   I have read the papers, ladies and gentlemen, and I have also read the judgment of Justice Sundberg, given on 6 March 1998 in a matter that, although not formally related, seems to bear on some aspects of this matter, and also the judgment of the Full Court of the Federal Court given on 24 July 1998.  In those circumstances, I would propose to limit the time for oral argument and I would propose to fix a time of half an hour, Mr Hollier.  It is now a little after twenty to, so if we say a little after ten past.

MR HOLLIER:   Right, thank you, your Honour.

HIS HONOUR:   Yes, Mr Hollier.

MR HOLLIER:   I wish to point out to clarify the situation, as you have mentioned, there are a number of interrelated matters that proceed from 1986. There was initially, if you like, a situation where the problem could be solved directly by the Commonwealth. It would appear from historical matters that it was actually held directly from the Imperial Parliament rather than via the Constitution, but certainly it was held by the Commonwealth. The matter was then - there was a title created and there were services provided. This is all detailed in the affidavit.

So, there are three issues.  There is the beneficial use that was - we maintain granted - entered into an agreement - services provided for the use of the beneficial use for The Lighthouse Trust and the Engen Institute.  When the Maritime Safety Authority was established, we maintain there should have been a reconciliation under the AMSA Act that the obligations should have been determined by the Minister, which did not happen.  However, then there was a situation where questions of ownership arose and also questions of personal rights and jurisdiction to actually enter into a contract to be a lighthouse keeper and the terms of agreement, specifically as a contract, it was specifically stated that under section 30 - and there are documents from discovery that show that permission for a lease was withheld.  It was specifically stated to me that the document was titled “An Agreement” and the first term to provide that presence was “a contract to provide services.”

Because of this changing status of the land and the changing applicable law, it has been necessary to start, if you like, different proceedings.  However, as you note, they are related.  In that case, what I want to point out, your Honour, is that in a matter 716, which was an application for an order of review, that has not been heard.  There was subsequently an interlocutory application which was not successful under that matter.  Then, incorrectly, Justices Heerey, Whitlam and North, in their judgment, say that the matter is determined, which has not been the case.

However, there was brought to light the fact, in a directions hearing, that there may possibly be difficulties from it being out of time and in reading the guidelines for the High Court, mandamus is a remedy, if you like, for a situation where there is a time limit on a judicial review and - - -

HIS HONOUR:   I hear what you say about proceeding 716.  Let us, for the moment, assume for the purposes of argument that 716 is alive and that there may be something that can be done there.  Whether or not that is so, what exactly is it that you want the High Court to order?

MR HOLLIER:   We are seeking an order to protect the subject matter.  It has already been decided by Justice Sundberg in his decision on 27 April that the risk is real if there was a transfer of the property to such equitable rights and, so, consequently, there has been twice before, for the original case and the appeal, extended - - -

HIS HONOUR:   As I understand it, the immediate urgency of the matter from your point of view is that the caveat that you have lodged will cease to have effect today.  As I understand it, you would say that it is urgent and that if the caveat is removed, the subject matter of the dispute, namely title to the island, may be affected if not disappear.

MR HOLLIER:   Yes.  Thank you, your Honour.

HIS HONOUR:   I understand that. Then can I understand also how it is you say that the High Court can assist you in this regard? Reading your papers, you refer to section 8(1) of the Australian Maritime Safety Authority Act 1990 and the power of the Minister to give the Authority written directions about the performance of its functions. Is that the core of the way in which you put your case in this Court or is there more to it than that?

MR HOLLIER:   The grounds on which, I believe, we could proceed in the High Court, if the High Court hears the special leave application, apart from this matter of mandamus, there is also an appeal lodged for 667, special leave for appeal.  So, essentially, I believe that there is one whole aspect to this 1986 that has never been heard.  There has never been a hearing and it would not be right to have that determined.

Secondly, the matter is urgent and there is a real risk.  If I could just refer to my notes, your Honour.  The basis for proceeding in the mandamus - it was a public official and there was an advice and a refusal - is they are the formal basis for establishing to proceed on the mandamus.

HIS HONOUR:   You see, there is a difficulty that we may have to address.  Can I tease out with you so that I make sure I understand the case, the critical thing is that I understand what it is we are doing or dealing with?

MR HOLLIER:   Yes.

HIS HONOUR:   There is pending in the Court now, in this Court, an application for special leave to appeal.

MR HOLLIER:   Yes.

HIS HONOUR:   That is in relation to proceeding 667?

MR HOLLIER:   Yes.

HIS HONOUR:   And that proceeding relates to what sort of issue?

MR HOLLIER:   It is the estoppel and it has to do with representations made, essentially, by officers of the Australian Maritime Safety Authority or immediately beforehand when they were with the Department of Transport.

HIS HONOUR:   Right.  That proceeding, the application for special leave in 667, is not the one I am dealing with at the moment, as I understand it.  Do you have some different understanding?  My understanding is that I am dealing only with the application for mandamus and for interlocutory relief in relation to the mandamus application, but am I wrong about that?

MR HOLLIER:   Well, that is certainly the formal basis of the application to the Court, yes, your Honour.  I was just trying to expand.

HIS HONOUR:   I understand that, but I have to understand what you are asking me to do and the basis on which you do it.  So, forgive me if I interrupt you a little further because I just want to make sure that I am on the right track. 

MR HOLLIER:   Yes.

HIS HONOUR:   If we are dealing with mandamus and the application for mandamus, as I understand it, you want some relief in the meantime to preserve the subject matter while your application for mandamus is heard.  Now, do I get that right?

MR HOLLIER:   Yes.  That is quite correct.

HIS HONOUR:   Now, relief would be given to preserve the subject matter in some cases if the mandamus claim looked as though it raised arguable issues.  So, step one may be - and I have still to hear Ms Harris about all this but I am thinking aloud - that we have to look at the sort of relief you are seeking in the mandamus and whether you have a case to make out there.

MR HOLLIER:   Yes, your Honour.

HIS HONOUR:   Now, if I begin there, can I identify what seems to me, on the papers, to be a problem so that we can isolate it and talk about it?

MR HOLLIER:   Yes.

HIS HONOUR:   In so far as you depend on section 8(1) - have you a copy of the Act available to you?

MR HOLLIER:   I am familiar with it.  I have read it, yes.

HIS HONOUR:   A jolly sight more familiar than me. I read it for the first time last night. But section 8(1) says:

The Minister may give the Authority written directions as to the performance of its functions.

Right?

MR HOLLIER:   Yes.

HIS HONOUR:   And as I understand your case, it is that the Minister ought to give directions and you want particular kinds of directions given, but you say this is a case where the Minister should give directions.

MR HOLLIER:   Yes.

HIS HONOUR:   Am I capturing what you say accurately so far?

MR HOLLIER:   Yes, your Honour.  The remedies were put in the alternative because there was some doubt as to - and, in fact, it is one of the questions that is being raised in the constitutional nature of the relationship between the Commonwealth and the State as to who controls.  That was, in fact, contested by Tasmania.  So that it may be that the only legally certain way would be for the Court to order a Supreme Court to so direct.  If the Court also ordered the Minister to so direct then, to a certain extent, the Court would be ensuring that it had not pre-judged the matter because it would seem to me that one or the other of those mechanisms would ultimately be determined to be appropriate.

HIS HONOUR:   Well, you say there may be some question about whether it is State or Commonwealth - - -

MR HOLLIER:   - - - jurisdiction law.

HIS HONOUR:   - - - that has the authority over this land?

MR HOLLIER:   Yes.

HIS HONOUR:   Can I walk round that problem for a moment and assume for the moment that it is the Commonwealth.  The reason I walk round it is there might be some real difficulty about my giving orders directed to the State authority.  But let us walk round that problem for a moment.  Whoever the authority is, be it State or Commonwealth, can we test it against the Commonwealth?  You say the Commonwealth ought to give directions to, in effect, sit down and talk to you and sort all this out.  Is that the nub of it?

MR HOLLIER:   Yes, your Honour, quite so.

HIS HONOUR:   I keep putting these things to you just to make sure that I understand the way in which you are putting it.  Do you understand the process I am going through?

MR HOLLIER:   Yes.  In fact, that process of mediation, if you like, was actually happening until there was a change of Minister.

HIS HONOUR:   Yes.  You want the Commonwealth to sit down - or whoever it is, Commonwealth or State - with you and talk about it?

MR HOLLIER:   Yes.  The taxpayer will only lose by having a situation where they have to, you know - - -

HIS HONOUR:   I understand the way in which you put that.  Now, that then seems to me, at the moment - and I, again, need to bring this up to the surface so you can see what has happened - to present a difficulty.  The difficulty is this:  mandamus is an order that will be made if there is a duty of a public nature which is unperformed.  So, first you have to catch your duty, as it were; find the duty that is unperformed and if it is unperformed then, in appropriate cases - and there are qualifications which we need not fuss about for the moment - a writ of mandamus will issue.  The High Court will give mandamus directed to an officer of the Commonwealth.

The Minister might, subject to anything that Ms Harris may say, might be seen to be an officer of the Commonwealth.   It seems to me at first blush to be bit hard to say that the Minister is not.  But then we are back to:  is there a duty?  What do you say the duty of the Minister is?  This, for me, is the hard and key part of it.  So can you spend a bit of time telling me how you say the duty arises and what it is.

MR HOLLIER:   We would maintain that there was a duty by virtue of the Australian Maritime Safety Authority to determine the matter and that a predecessor, no doubt not being informed that there were issues to be determined, did not do that.  However, even if it were maintained that it was a political decision that was made to grant a review at the end of 1995 and into the start of 1996, the fact of the matter is that the Minister is responsible for his officials and must ensure that they conduct themselves so that there is natural justice.  Now, they did hold an inquiry in which we were not heard.  We were asked to present, if you like, a draft list of points that would then be discussed.  However, no such discussions occurred.  The documents that have turned up in discovery show quite clearly, although they refer to it as a second editing and we have not documents of the first editing, so we cannot be sure to what extent there was interference in the process, but it certainly quite clearly was not an independent assessment.

So that there has not been the necessary freedom from bias.  There are a number of grounds there, the fact that they have had to deal with property rights et cetera, why prima facie, if there is an apparent conflict of interest, it should be deemed to exist.  So that in effect what we are arguing is that having made the decision for whether it is related to a previous failure to determine the matter or for other reasons, having made the decision then it was necessary that that was carried through with natural justice, which was not the case, and the result of that has been used to our detriment to not allow any further consideration of the matter.  So that it has had consequences as well.

HIS HONOUR:   What do you say the Minister is now bound to do?  What is his duty?

MR HOLLIER:   His duty is to ensure that there is an inquiry that must give natural justice.  The question as to whether or not there should be an inquiry has passed, if you like, in view of the prior decision.  The question is that it did not grant natural justice or was not conducted according to the rules of natural justice.  The Minister is aware of that and has a duty to be responsible for his officials and to remedy that situation.

HIS HONOUR:   Yes.

MR HOLLIER:   That would seem to have covered, within that realm, addressing that question, all that I could put forward on natural justice.

HIS HONOUR:   Was your complaint about natural justice - rather your complaint that there was a lack of natural justice - was that part of your complaint in the Federal Court?

MR HOLLIER:   No.  In the Federal Court there were some difficulties with those proceedings as well because we initially sought 716 ADJR to have the ministerial determination.  Now, the matter was assigned to Justice Goldberg and Justice Goldberg in the original directions hearing said that it would be better to have this directed to one judge to hear both matters and assured us that it would be to our benefit and that the matter would be heard.

Now, we had already pointed out at the directions hearing that what is in 716 is prior in time and lays the basis and that without hearing 716 you have not heard the material that establishes what rights there are in large part that should have been determined.  Now, in actual fact, then the matter ‑ there was a conference between the judges and the matter was taken in toto by Justice Sundberg who, in directions hearing, was again reminded of the need to deal with them in time order.  However, that did not happen and so everything prior to 1991, if you like, has not been considered in any proceedings.  The lack of having that severely impacted on the ability for the other matter to be adequately heard. 

HIS HONOUR:   Those are the issues that may arise in relation to the special leave to appeal from the Full Court or Federal Court, are they not?

MR HOLLIER:   Yes.  And that matter is also now pending so that an application to preserve the subject matter would be relevant there as well.

HIS HONOUR:   Yes.  Can I say this to you, Mr Hollier, that it seems to me that the key issue that I have to deal with perhaps first is the mandamus issue and the identification of the duty.  If you were to persuade me that an order nisi for mandamus should issue, then separate questions may arise about whether any interlocutory relief should be given and what form it should take and so on, and there are a whole raft of issues that we might have to debate about that, but at least at first blush it seems to me that the key to this, the first key at least, is whether mandamus can lie, whether this is a case for mandamus.  As I understand it, you said to me that you had said all you could about the question of duty.  Is there anything else you want to add about the question of the duty in this case, the Minister’s duty?

MR HOLLIER:   Yes, the grounds that have been lodged in the order nisi, I feel that counsel would deal with that much more adequately and we certainly have a list of authorities and, prima facie, the rules of justice must be preserved.  It is a matter also dealing with - I understand that that is clearly established when you are dealing with property.  I would draw your attention to those claims inasmuch as to say that there is certainly an arguable case on the evidence that has been presented that there has not been natural justice and that, further, in the balance of convenience there is no detriment to Tasmania or to the Maritime Safety Authority or the public in not proceeding with the transfer that could possibly eliminate or impact upon the rights that we maintain exist. 

So that purely on the basis that there is a prima facie case, that there is good documentary evidence in support and the balance of convenience, it would seem to me that there is sufficient grounds on which, at this stage, to at least preserve the subject matter, although I feel that, you know, counsel would be far more capable and counsel would be arguing the natural justice aspects in more detail.

HIS HONOUR:   I think I understand, though, what you say about it, Mr Hollier.  I do not think you should feel diffident about your capacity to convey the message.  I think I understand what you are saying.

MR HOLLIER:   Fine.  Quite clearly we have provided services to the Commonwealth.  There has been no charge, there has been a major savings for many years.  There has also not been demonstrated any reason to discontinue the arrangement.  We would maintain that it is not good public policy to discontinue.  We have been providing sea safety services which you see that the Premier and Prime Minister in fact are mutually committed to.  Our difficulties arose when there was, if you like, a corporate property section that was then frustrated in being able to sell property and we have seen, really, I suppose, I would maintain there is an improper purpose in wanting to remove us.  There is no public purpose.  So that that would clearly also be a natural justice claim.

The public would benefit from the science.  I might also point out that there has been an application - Justice Sundberg in fact said that he would rely on undertakings from Maritime Safety Authority - he says, “But that inconvenience being removed from Deal Island will, as I have found, not arise so long as the appellants continue to provide a manned presence on the Island to the exclusion of strangers.”  So that while we were still a legal action, Justice Sundberg was under the opinion that the Maritime Safety Authority had given an indication that they would not seek to remove us, that even if they got a court order granting them a writ of possession, they would not act upon it until such time as the legal avenues were determined.

HIS HONOUR:   As I say to you, Mr Hollier, at the moment my primary concern and worry in this case is the logically anterior question of what is the power that you seek to have enforced.  My first impression, necessarily first impression is that if you were to make out a prima facie case or a sufficient case to warrant a grant of order nisi, I understand the force of what you say about preserving the subject matter.  But my worry is at that logically anterior point at the moment.  So I suspect that it may be more efficient to deal with that logically anterior point, rather than the balance of convenience issues which I have read and I think I understand, and I think I understand the force of the case that you would make on preservation of subject matter and balance of convenience.

MR HOLLIER:   It seems, your Honour, that you are saying that the hub of the question deals with the Minister’s responsibility to ensure that his officials are obliged to produce - to act by natural justice.

HIS HONOUR:   What is the duty that you seek to enforce is, to me at the moment, at least, subject to what Ms Harries tells me, the nub of the case for the time being.  Other issues may well fall out.  Judges who do as I have just done, dive in and identify one point, often enough come unstuck and find that there is more than one other point that needs to be dealt with, Mr Hollier, but it is that first point which seems to me to be the most difficult one from your point of view.  I do not want you to be under some misunderstanding about it.  It is a difficulty from your point of view.

MR HOLLIER:   Yes.  Your Honour, the authorities that - I did actually have this with authorities and have removed the authorities, I do not have them immediately before me to provide the full reference, but I do remember it was Hayden v The Commonwealth, I believe was the case, in which it was established that there is a chain of responsibility from - which is the public service to the Minister, the Minister to the Parliament, the

Parliament to the Crown or whatever, and so there was established that there was a ministerial responsibility, that government departments were, in that ruling of the High Court, bound under the Minister’s direction to provide natural justice and in fact all his officials.

HIS HONOUR:   Yes.

MR HOLLIER:   So that I would have to rely on that authority.

HIS HONOUR:   Yes, I understand that.  Now, is there anything else that you would wish to say on this issue; this issue of duty rather than on the more general issues that may arise?

MR HOLLIER:   It seems to me so fundamental that there has to be responsibility through some mechanism that to even propose, if you like, while trying to identify where it is, but to even propose the alternate that public servants can act without being obliged, you know, they are effectively delegating the authority of the Minister and of the Parliament so that the counter-proposition, if you like, that they can act without reference to natural duty would seem to me to be untenable.

HIS HONOUR:   Yes.

MR HOLLIER:   Other than that, I think it will have to be Queen’s Counsel to deal with such an issue.

HIS HONOUR:   I do not know about that, Mr Hollier, but thank you for your submissions.  Ms Harris.  I think in the first instance, if you would direct your attention to this question of duty and whether an order nisi for mandamus should go.

MS HARRIS:   Yes.  Your Honour, it may now be superfluous but perhaps I might just hand up for the purposes of reference during argument a chronology that my instructor has prepared.

HIS HONOUR:   Have you given this to Mr Hollier previously?

MS HARRIS:   No.  I will give him a copy now.

HIS HONOUR:   I think it would be better, perhaps, if we went on without the chronology for the time being, Ms Harris.  I think that a litigant in person, reading on the run and trying to listen, is put in some difficulty.

MS HARRIS:   I understand what your Honour says.  There are not any surprises in it.

HIS HONOUR:   So you say.  Mr Hollier may have a different view, so I think I would prefer it if you did not hand it up for the moment.

MS HARRIS:   Surely.  Perhaps then I will hand up though a copy of a decision which your Honour did not refer to and that is a decision of Justice Sundberg in proceedings in the Federal Court VG716 of 1997.  I want to take your Honour to that because the relief sought in that proceeding is materially the same as what Mr Hollier wants, at least in part, from your Honour today.  I would like to take your Honour to what Justice Sundberg had to say about prospects on that in due course.  The first question - - -

HIS HONOUR:   Just before you go on.  Mr Hollier, do you have access to a copy of Justice Sundberg’s judgment of 27 April 1998?

MR HOLLIER:   Yes, this is the injunction matter, your Honour.

HIS HONOUR:   Yes.  Yes, Ms Harris?

MS HARRIS:   Your Honour, the first question that your Honour has put to me relates to duty.  The question is the Minister’s duty to make the determinations or give the directions that Mr Hollier seeks.  It is common ground, I think, that Mr Hollier would like to stay on the island and he would like - and he has extensively used the court processes in order to achieve that result, thus far unsuccessfully.  He would now like - - -

HIS HONOUR:   Ms Harris, I do not see a jury box in this Court.  Can we come to the issue?

MS HARRIS:   He would now like the Minister to exercise what is a discretionary power in the Act to achieve that effect.  There are two problems with that.  First, is the nature of the power.  It is a discretion.  So much appears from the wording of the section itself:

The Minister may give the Authority written direction as to the performance of its functions.

Justice Sundberg dealt with the question of the nature of the power in his judgment.  His Honour found, consistently with what I have put to your Honour, at the top of page 7 in the judgment I have handed up, that “the making of a determination under section 32(5) is discretionary.  In judicial review proceedings the court cannot direct the Minister to make a determination.”  It cannot.  The court cannot require the Minister to make a determination.  Still less can it require the Minister to make a determination in particular terms.

The force of that is reinforced, your Honour, by the nature of the direction which Mr Hollier would have the Court compel the Minister to make.  He would compel the Minister to prevent AMSA from transferring the property.  Your Honour, there is no basis under the Act or otherwise on which the Minister could make such a direction to AMSA.  The question of Mr Hollier’s interest in Deal Island has been litigated extensively.  He has had an opportunity to put to the court in the several proceedings in the Federal Court, both matters pre-dating and post-dating the transfer of the island to AMSA.  Both Justice Sundberg and the Full Court have made findings and made rulings in relation to representations said by Mr Hollier to give rise to interests in him and those he represents in the island.      I can take your Honour to the passages of the judgments if you like but I apprehend that your Honour has already read them.

HIS HONOUR:   Yes.

MS HARRIS:   Those findings, by the way, are also adverted to in Justice Sundberg’s judgment of 27 April at page 7.

Mr Hollier has adverted to certain sections of the Act which he says require the Minister to make determinations as to the existence of rights, in someone in his position, liabilities of the Commonwealth prior to transfer of land of this type.  That is the subject matter of the proceedings in 716 of 1997 which is still on foot, which is still within the jurisdiction of the Federal Court.  Moreover, it has been dealt with by Justice Sundberg on the interlocutory application.  Justice Sundberg found that the section which Mr Hollier relied on in order to enliven the Minister’s discretion or duty to make a direction to AMSA did not relate to interests in land at all. 

He said at page 8 of his judgment that Mr Hollier had, in that proceeding, no prospect of success. 

There is no prospect of the applicants obtaining the relief sought in their application.  They have not established that there is a serious question to be tried.

Your Honour, it is not even arguable that the relief sought in this application which is materially the same as the relief sought before Justice Sundberg is available to Mr Hollier.  In other words, even if your Honour was to make the order nisi in contemplation that the Minister may have a duty rather than a discretion to make a determination requiring AMSA not to do anything with the island pending determination, even if that were to happen, the relief which could ultimately be obtained by Mr Hollier is, for the reasons set out in Mr Justice Sundberg’s judgment, not relief that would end up giving him an interest in the island.  Justice Sundberg has said that - - -

HIS HONOUR:   But no mandamus will go to compel a particular decision, will it?  Mandamus will go to compel the performance of a duty.  My question is directed to:  is there a duty of a kind that mandamus will enforce?

MS HARRIS:   I think I have answered that question and jumped a step ahead, so I will take the step back, your Honour.  The first question is that in relation to the order that the Minister make a direction relating to transfer, there is simply no duty.  One cannot read section 8 as requiring the Minister to give directions to AMSA.

The second point, your Honour, is that there is no direction which the Minister could make which could give Mr Hollier what he wants.  In the first place, it would be wholly inappropriate in the light of the fact that the Federal Court - and the Full Federal Court has found that he has no interest in the island, for the Minister to make that direction.  Further, what section 32 requires him to do, and I apprehend that that is the foundation Mr Hollier relies on in order to enliven the Minister’s discretion or duty under section 8, does not require - cannot require the Minister to establish the nature of the interest of Mr Hollier in the land.  There is simply a mismatch between what he wants and what he could get on this.

HIS HONOUR:   As I understand the core of what he put this morning, Mr Hollier says that there having been a decision made to inquire into these matters, that inquiry should have been conducted with procedural fairness and it was not.  The Minister is responsible for those public servants who did it.  His duty is to ensure that the public servants conduct an inquiry in proper manner.  That, I think, is at least an important part of what he said this morning.

MS HARRIS:   That is right, and I have not addressed your Honour on that.  In that regard, your Honour, there is no duty on the Minister to undertake or to require the undertaking of an inquiry.

HIS HONOUR:   But once an inquiry has been undertaken, the point made against you, as I understand it is, “Well, you have taken that decision, then there is a duty to ensure that it is done fairly.”

MS HARRIS:   Your Honour, I am not sure that we even have to answer that question because there can be no question that Mr Hollier has received natural justice now.  As he stands before you today, Mr Hollier has received almost a surfeit of natural justice.  He has had proceedings before the Native Title Tribunal which have made their way through the court.  He has had proceeding No 667 of 1997 where he seeks to establish a proprietary interest in the land.  That has made its way through the Federal Court and is now subject to an application for special leave.  He has also had the judicial review proceedings again, trying to establish an interest in a land.  In each case, your Honour, the record shows that he has had ample opportunity to establish the interest that he says he has in the land.

In those circumstances, what could the Minister telling Coopers and Lybrand to go back and have another go do?  How could it be said that Coopers and Lybrand, even assuming that they did not do the job properly in the first place, which is not conceded, what more could it achieve now that the most impartial adjudicator there is, namely the court, has had an opportunity to hear what Mr Hollier has to say and to allow him to call the witnesses he wanted to call to present the evidence he wants to call?  Your Honour, I direct your attention to the judgment of the Full Court in proceeding 667 of 1997.

HIS HONOUR:   Yes, I have read that.

MS HARRIS:   Which your Honour has read.  Complaint was raised by Mr Hollier there about the manner in which the trial was conducted.  The Full Court found that he had had every opportunity to raise the evidence, to place the documents that he wanted to place before the court and the witnesses and to make whatever submissions he wanted.  Inevitably, the natural justice he achieves via that process must be superior or at least equal to any natural justice he could achieve via an administrative inquiry, whether by Coopers and Lybrand or otherwise. 

So, my submission is, your Honour, that whatever the inadequacies, if there be any, of the Coopers and Lybrand process, they have been overtaken by events and Mr Hollier has had every opportunity to put his case.

HIS HONOUR:   But the merits of the decision to stay or go are merits that he says were determined in the inquiry, an inquiry conducted without natural justice.

He now says the Minister’s duty is to ensure compliance with natural justice.  It seemed to me that the existence of that duty may be affected by the existence of remedies to complain about the decision, including the capacity under the ADJR to complain about the decision stay or go, founded on alleged want of procedural fairness and that the content of the duty now asserted has to be understood in light of that fact.

MS HARRIS:   Your Honour, there was no complaint at the time about the fairness of the Coopers and Lybrand report.  There has been no application for judicial review in respect of the report.  There was no complaint raised ‑ ‑ ‑

HIS HONOUR:   But there has been an application for judicial review of the decision about stay or go, has there not?

MS HARRIS:   About stay or go, your Honour?

HIS HONOUR:   Whether Mr Hollier stays or goes from Deal Island?

MS HARRIS:   No, there has not been.

HIS HONOUR:   No?

MS HARRIS:   No.  The only application for judicial review, your Honour, is in relation to the matters I was discussing before, that is whether or not the Minister should make a direction to answer requiring it to not transfer the island, which is the identical relief that is sought today.  That is the only application for judicial review that has been made.  I can hand up a copy of the application if that would assist.

HIS HONOUR:   No.

MS HARRIS:   So that there is - if that is what Mr Hollier had wanted, then he was entitled to do it but he has not.  He is now seeking before you the identical relief that he was seeking before Justice Sundberg, plus he would like an inquiry, but what he seeks in that regard is not judicial review of the decision.  What he seeks is to have the Minister set in train processes which have already been exhaustively undertaken by the Federal Court.  In those circumstances, there can be no duty, indeed it would be - many would say it was wholly inappropriate for the Minister to undertake that step while Mr Hollier had on foot before the Federal Court applications relating to the very subject matter of the inquiry, none of which have been resolved.  He has special leave applications on foot in all of them and 716 of 1997 is still pending.

In relation to the - what Mr Hollier really wants is to stop his caveat being lifted.  This is not the forum for that application.  He must go to the Supreme Court of Tasmania.  It is not within this Court’s jurisdiction to make a direction to either the Recorder of Titles in Tasmania or the Supreme Court of Tasmania.  Neither of those entities are Commonwealth offices.  The relief sought in that regard simply cannot be granted.  It is not within the jurisdiction of the Court.

HIS HONOUR:   That might be just a challenge to ingenuity, Ms Harris, about how the order might have to be framed about directing the Commonwealth about what it should do.  But there we are.  I do not want to go down that path unless we have to.

MS HARRIS:   It seems to raise enormous Melbourne Corporation problems, your Honour.

I have addressed your Honour on the question of whether there is a duty or not and whether it arises at common law or from section 8 of the Act.  On either view there is no duty in the Minister to do what Mr Hollier now requires in the light of what has already transpired or otherwise.

The second point, your Honour, is the preservation of subject matter point and I understand that that only arises if your Honour is able to divine a duty from ‑ ‑ ‑

HIS HONOUR:   If it is arguable that there is a duty, then there may arise questions about preservation of subject matter and the like and what orders can be made by this Court to preserve it, but at least for the moment I would seek to confine the argument to the question of existence of an arguable case of duty, whether order nisi for mandamus should go.  If order nisi for mandamus should not go, the question of interlocutory relief would seem to me to fall away at once.

MS HARRIS:   Yes.  Your Honour, on that score then I might just confine myself to saying that if that is what he wants, the appropriate course is to obtain a stay on the special leave proceedings.

The third matter which I have not touched on, not directly at least, is what matters might exercise your Honour’s discretion in deciding whether to make the order nisi.   Even if there were an arguable case in relation to the existence of a duty, contrary to my submissions, your Honour, I would urge you not to make the order nisi for the reason that the matters that will be the subject of the order nisi have already been, and are continuing to be, litigated through the Federal Court and now this Court in separate proceedings.  To consider these matters on an order nisi, your Honour, would effectively be to circumvent the appeal processes of the lower courts because Mr Hollier would achieve on that what he has been unable to achieve below and the appropriate course is for him to use the appeal mechanisms of the courts below if he is unhappy with the relief that he has got.  It would also involve enlisting the Minister in effectively a political process.  What is contemplated is ‑ ‑ ‑

HIS HONOUR:   Put in that way, it does not exactly strike one as a strange proposition that a Minister of the Crown should be engaged in a political process, but perhaps I am missing something, am I, Ms Harris?

MS HARRIS:   I think what I am putting to your Honour is that political processes are for the executive.

HIS HONOUR:   Namely the ministry.

MS HARRIS:   That is right, and it is not for the Court, in my submission, to put the Minister in a position where he is forced to exercise what discretions he has in that realm in a particular way.  I guess that takes us back to the question of duty.  Whatever jurisdiction he might have over the Maritime Safety Authority, it is clear from the AMSA Act that those matters are wholly discretionary.

Perhaps the last matter I should put to you, your Honour, is that in so far as the relief currently sought might affect the Maritime Safety Authority and the State of Tasmania, they are not before the Court today.  If we get down to it, they are really the people who are affected.  I am instructed that the prospect that there might be a delay in settlement of the transfer of the island will significantly jeopardise the prospect that it will occur.  They have not been given the opportunity ‑ ‑ ‑

HIS HONOUR:   Those are matters for evidence, are they not, Ms Harris, rather that assertion?

MS HARRIS:   We have prepared an affidavit, for whatever it is worth, your Honour, but I do not need to take you to that.  I think I can say that ‑ it is enough for me to say that the parties who are directly affected are not before the Court.  They have not been heard.  It is their interests that are in jeopardy. 

Perhaps lastly I might direct your attention to section 9 of the AMSA Act which effectively sheets home any financial detriment that AMSA might suffer in not being able to complete the transfer to Tasmania to the Commonwealth.  So that there is also that matter, your Honour, that I would urge your Honour to take into consideration on the balance of convenience question.  I think that is all, if your Honour pleases.

HIS HONOUR:   Thank you, Ms Harris.  Mr Hollier, do you want to say anything in reply, again, for the moment, although Ms Harris’ submissions

may have gone further, if you would confine yourself to the question of duty, this issue of duty.

MR HOLLIER:   Yes, your Honour.  I believe there are a number of inaccuracies, just incorrect statements that I would like to, at least very briefly, touch upon.

HIS HONOUR:   Yes.

MR HOLLIER:   The Australian Maritime Safety Authority has the opportunity of transferring the property for $1 to the Australian Property Group and have always had that option.  That was initially proposed in their instructions when they obtained the properties.  For the last six years we have maintained the property at our cost and yet they have had the use of it.  They have actually used it as a flying base to reduce their helicopter flying time to other sites, so they have actually made a profit out of that, apart from the fact that it has cost them nothing.  It is totally fictitious that they would have any costs associated with the island or Tasmania.

Justices Heeney and Whitlam and North in their judgment incorrectly say that there is actually a decision in the matter of 716 which is not the case, although, as I may point out, it has been stated to me in directions hearings that it would have some difficulty on the basis of being out of time and also in the injunction which was heard, that it would also have some difficulties in proceeding.  However, I think that those difficulties might be the fact that essentially we are dealing with an estoppel matter and in order to obtain - we have great difficulty bringing this to trial because of the resistance of the Maritime Safety Authority to provide discovery.  I ended up with 1,500 pages on the Saturday with the trial commencing on the Monday.

HIS HONOUR:   Those matters, I think, were agitated though, were they not, in the Federal Court?

MR HOLLIER:   Yes.  So I think that what that boils down to is that addressing the situation that has been stated that what is being sought here is the same as the ADJR, that is clearly not the case because a ministerial inquiry can look at the material from early 1986 right through until the current time whereas the ADJR would only look at the matter up until the time the determination should have been made.  An inquiry would be able to proceed on a basis where the Minister requires the co-operation of the Minister’s officials.  That could be in a situation where their co-operation rather than seeking to withhold files and information, their co-operation would be ensured.  It would be in a situation where they would not be faced with perjury.  It would also be in a situation where mediation, which is what we have sought throughout, is a possibility.  So that the actual process of an inquiry conducted like that is quite different from a court process or 716.

So apart from the fact that there was no evidence heard from the period 1986 to 1991, that the 716 has not been determined but we have been advised it has no prospect, and I would maintain then that mandamus, it is clearly stated, is an alternative if ADJR is out of time.  We are talking about, with mandamus and an inquiry, a completely different forum that would achieve probably a better result.

So as far as the Minister’s duty, what has been argued in essence is that having an inquiry has been completely overtaken by the fact that the court processes, which have not been completed and have, in our submissions to the High Court, yet to be determined, have been astray, that those court processes could be seen as being equivalent to the inquiry that was, in fact, established. 

I would maintain that the court processes are the ultimate determinate but just as there may be a coronial inquiry that would precede a court hearing, that the mechanism of ministerial inquiry conducted by a truly impartial arbiter may well get to the essence of what we are dealing with, which is an estoppel-type situation, and a key factor is the nature of evidence or the non-existence of it, that having made the decision that there should be an inquiry, and as your Honour has correctly pointed out, that was a basis for decisions made that had forced us into a very difficult and expensive court process, that it would have been, had there been natural justice in that inquiry, it may well have been a different result and we would not find ourselves with all this litigation, which certainly is not equivalent in its function to the ministerial inquiry which I maintain, your Honour, would be an appropriate way to, at a low cost, achieve a resolution of the matter and certainly would save the court’s time by interviewing witnesses, collecting and presenting like a coronial inquiry the material that the court could then deliberate on.

In terms of the Minister’s duty the assertion that it has been overcome by events that are equivalent I have maintained is not tenable.

HIS HONOUR:   Yes, thank you, Mr Hollier.  I see that it is about twenty to midday.  I will adjourn for a short time to consider the course I will take.  I would expect to be in a position to give judgment at about five or ten to twelve.  If the parties would be good enough not to leave the precincts of the Court, I would be grateful.  I will adjourn.

AT 11.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.55 AM:

HIS HONOUR:   This is an application for an order nisi for mandamus directed to the Honourable Peter Reith, Minister for Workplace Relations and Small Business.  The applicants are William Edward Hollier, Engen Institute and The Lighthouse Trust.  Mr Hollier has appeared on his own behalf and on behalf of Engen Institute and The Lighthouse Trust.  Ordinarily, that might require some consideration of the relationships between Mr Hollier and those two organisations and his capacity to speak for them but it is not necessary for the purposes of this application to do so.  It is convenient to refer to the applicants simply as Mr Hollier, without distinguishing between the claims which he might make in his personal capacity and those that the other entities might make.  Mr Hollier also seeks certain interlocutory relief said to be necessary to preserve the subject matter of the proceedings. 

The application seeks an order nisi to show cause why a writ of mandamus should not issue directing the Minister to “hear and mediate, determine or report” upon the application made by Mr Hollier.  The prayer for relief indicates that the orders which are sought by way of final relief are: 

1 That the Respondent immediately, exercising his power under section 8(1) of the Australian Maritime Safety Authority Act 1990, direct the Australian Maritime Safety Authority to desist with any dealings or transfer of interest in Deal Island until further order.

2  That Counsel for the Respondent and for the Prosecutor agree upon and the court approve the appointee(s) to conduct and terms of reference of an Inquiry into the rights, estate and interests of the Prosecutor and those he represents in Deal Island and commitments and obligations of the Crown, Commonwealth and Australian Maritime Safety Authority.

3  That a Ministerial Inquiry constituted as approved by the Court collect evidence, interview witnesses, inspect files and records and otherwise consider -

The rights, estate and interests in Deal Island of the Prosecutor The harassment, obstruction and defamation of the Prosecutor Seek to mediate and agree on settlement with the Prosecutor

4  That the Minister give effect to such rights and settlement if possible or return the Inquiry Report for consideration and order by the High Court.

Nine grounds are proposed for the order nisi.  It is as well to set them out.  They are:

1  The Respondent is required to be responsible for the actions of those Departments and Statutory Authorities of the Commonwealth subject to his direction including the Department of Transport and the Australian Maritime Safety Authority.

2  The Respondent is required to provide natural justice both directly and through his delegates and servants in the administrative and statutory authorities subject to his direction (hereafter referred to as Respondent’s Officials).

3  The rights, estate and interests of the Prosecutor in Deal Island and commitments and obligations of the Crown, Commonwealth and Australian Maritime Safety Authority were inquired into by the Respondent’s officials and being a matter concerning property rights requires the inquiry to adhere to the rules of natural justice.

4  The rights, estate and interests of the Prosecutor in Deal Island and commitments and obligations of the Crown, Commonwealth and Australian Maritime Safety Authority were inquired into by the Respondent’s officials and the Prosecutor was not heard in that inquiry or evidence for the Prosecutor sought.

5  The rights, estate and interests of the Prosecutor in Deal Island and commitments and obligations of the Crown, Commonwealth and Australian Maritime Safety Authority were inquired into by the Respondent’s official who had personal interests and bias in the matter.

6  There were matters before the inquiry in which the Respondent’s officials had personal interests included their prior actions in which the Respondent’s official when exercising discretionary power delegated by the Respondent were acting with improper motive and sought to achieve an improper purpose.

7  There were matters before the inquiry in which the Respondent’s officials had personal interests included their prior actions in which the Respondent’s officials when exercising a discretionary power delegated by the Respondent had then acted not independently but acting under dictation.

8  The prima facie interest of the Respondent’s officials requires by the rules of natural justice bias must be presumed.

9  As the Respondent’s officials had not provided natural justice nor got to the root of the matter the inquiry is thus rendered a nullity and the Prosecutor was provided no hearing.

The interlocutory relief which is sought is essentially interlocutory relief directed to intercepting registration in the Tasmanian Land Titles Office of a proposed transfer of land concerning Deal Island.  The matter has come on urgently because on 31 July 1998, the Land Titles Office of Tasmania gave notice to Mr Hollier that a caveat that had been registered on 5 February 1998 in respect of the certificate of title relating to Deal Island would, in effect, cease to have effect upon the expiration of 28 days after service of the notice unless, within that period, an order to the contrary was made by the Supreme Court and that order or written notice thereof was served upon the Recorder of Titles, or the dealing which triggered this notice was withdrawn or for any reason ceased to be in order for registration.  The dealing which triggered the notice was the transfer of Deal Island to the Crown.

There is a considerable factual and litigious background to the present application.  I do not propose to rehearse all of that and will mention no more than the barest details of it.  Deal Island is part of the Kent Group of islands in Bass Strait.  It lies about halfway between Wilson’s Promontory in Victoria and Flinders Island.  There is a lighthouse and associated buildings on the island.  The lighthouse and those buildings were first built in the late 1840s.  The island was at one time owned by the Commonwealth but has since been transferred to the Australian Maritime Safety Authority.

The Safety Authority, which is a body corporate established under the Australian Maritime Safety Authority Act 1990 (Cth), proposes to transfer the island to the State of Tasmania. Mr Hollier has had a long association with Deal Island. In essence, he wants to maintain that connection and wishes to continue the work that he has done there and to embark upon other work that he has planned to carry out on the island. The transfer of the island to the State of Tasmania would frustrate the maintenance of the connection which he maintains he has with the island and would frustrate his further working there.

The exact nature of the connection which he claims with the island has been the subject of proceedings in the Federal Court of Australia.  Since at least some aspects of those proceedings are the subject of applications for special leave to appeal to this Court, it is neither necessary nor desirable that I embark on considering the issues that were agitated there.

The essence of the claim which is made in this Court is that an order should go, the effect of which would require the Minister to hold an inquiry into whether Deal Island should be transferred or at least transferred in a way that would defeat Mr Hollier’s hopes and what he says are his legitimate expectations and interests in it. 

As is apparent from the framing of order 1 in the prayer for relief in the draft order nisi to which I have earlier referred, Mr Hollier contends that the Minister should exercise his powers under section 8(1) of the Australian Maritime Safety Authority Act 1990 to direct the holding of such an inquiry. Section 8(1) of the Act provides:

The Minister may give the Authority written directions as to the performance of its functions.

The functions of the Authority are identified in section 6 of the Act and, amongst others, are:

(a)  to combat pollution in the marine environment; and

(b)  to provide a search and rescue service; and

.....

(d)  to perform such other functions as are conferred on it by or under any other Acts;

.....

(f)  to perform functions incidental to any of the previously described functions.

Section 6(3) makes plain that:

Subject to section 8, the functions to provide services may be performed at the discretion of the Authority.

Mr Hollier mentioned in the course of argument that there may be some doubt, according to his contention, about whether the Commonwealth or Tasmania has authority over the island and has authority to deal with the claims which he would make in respect of it.  For present purposes, I must deal with the application on the assumption that the polity having jurisdiction or authority is the Commonwealth, rather than the State, because that assumption founds jurisdiction in this Court.             Nevertheless, it may be doubted that the concerns which Mr Hollier has expressed about the Commonwealth’s capacity to exercise authority are well founded.  As I said, however, I put those concerns to one side in any event.

Mr Hollier contends that it is arguable that a writ of mandamus would go to compel the Minister to give directions of the kind described in paragraph 1 of the prayer for relief in the proposed order nisi.  As I would understand it, the other paragraphs of the prayer for relief are, in effect, ancillary to, or subordinate to, the principal claim which is a claim that the Minister should direct the Safety Authority to desist with dealings with or any transfer of the island pending the conduct of a ministerial inquiry.

It is important to identify the circumstances in which mandamus will go.  In Re Australian Bank Employees’ Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513, the Court said in a unanimous judgment at 515:

Mandamus will issue to compel the performance of a public duty when there has been a refusal or failure to perform that duty.

The Court referred to Randall v Northcote Corporation (1910) 11 CLR 100 at 105 and 114; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398 to 399; and Reg v Bowen; Ex parte Federated Clerks Union (1984) 154 CLR 207 at 209 to 210.

The proposition stated by the Court in the Bank Employees’ Case was put in different words (but to no different effect) in Ex parte Bott (1933) 50 CLR 228 at 242, where it was said that:

A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed.

Therefore, critical to the assessment of whether an arguable case sufficient to warrant grant of an order nisi is made out in this matter is the identification of some duty of a public nature which remains unperformed. 

Mr Hollier said that such a duty could be identified in this case because the Minister is responsible for the actions of those departments and statutory authorities of the Commonwealth that are subject to his direction including, for present purposes, the Safety Authority and the Department of Transport.  As his proposed grounds also reveal, he would seek to contend that those whom he describes as “the respondent’s officials” have conducted an inquiry into the rights, estate and interests of the prosecutor, that is Mr Hollier, in Deal Island and the commitments and obligation of the Crown, Commonwealth and Australian Maritime Safety Authority, and have done so in a way which he contends lacked procedural fairness.

He would contend that he received no, or at least no sufficient hearing; that those who conducted the inquiry were biased; that they acted with improper motives and sought to achieve an improper purpose and did not act independently but acted under dictation.  Therefore, so the argument proceeds, the Minister being responsible for the conduct of those who are subject to his direction and there having been an inquiry conducted without natural justice, the Minister is now under a duty to accord the natural justice which has been wanting.

In my opinion, the key question that is raised by the present application is whether there is a duty to inquire. The way in which any inquiry should be conducted is a second, no doubt important, issue but where, as here, mandamus is sought to compel the holding of an inquiry, it is necessary first to identify a duty to inquire. I do not accept that section 8(1) of the Act imposes such a duty on the Minister. It goes no further than to give the Minister power to give written directions as to the performance of its functions.

Assuming without deciding that it would be within section 8(1) for the Minister to give the Authority a written direction that it should hold an inquiry, I do not accept that it is arguable that the Minister is under a duty to give such a direction. Nor do I accept that it is arguable, independently from any obligation that may be created by section 8(1) of the Act, that the Minister is under a duty of the kind now asserted. The fact that in the past the Minister may have chosen to hold an inquiry does not, of itself, demonstrate the existence of any duty to inquire.

In these circumstances, I am not persuaded that a sufficient case has been made out to warrant the grant of an order nisi.  That being so, the present application is not one in which interlocutory orders of the kind for which Mr Hollier contends can be made.  In these circumstances, it is not necessary to consider the discretionary questions adverted to by Ms Harris in the course of argument which it was said might tend against

the grant of mandamus nor is it necessary or appropriate to embark upon consideration of questions of balance of convenience and the like that might otherwise arise in connection with the grant of interlocutory or interim relief.  Likewise, it is not necessary to consider whether relief should go directed to persons other than officers of the Commonwealth or should go in the absence of some notice to them.  The application for order nisi is dismissed.

Is there any other application?  Mr Hollier?

MR HOLLIER:   Is it possible to make a comment, your Honour, just in as much as I believe that there is a factual error here.  I believe your judgment is based on the notion that the order for the inquiry was given to the Australian Maritime Safety Authority whereas the original order from the Minister was to the Department of Transport.

HIS HONOUR:   Department of Transport.  If that is in error, it will be corrected in the transcript.  My intention was that it should be as you have described.  Thank you for pointing it out to me.

MR HOLLIER:   Just within that context, it did not rely upon - also, point 1, your Honour, of the orders sought, was that the direction to the Australian Maritime Safety Authority was a way of preserving the matter but that the ministerial inquiry will be conducted by the Department and, as such, it does not depend upon the powers that are in the Australian Maritime Safety Authority Act.

HIS HONOUR:   Yes, I understand that.  Yes, thank you, Mr Hollier.  Is there any other matter?

MS HARRIS:   Your Honour, I just seek costs please.

HIS HONOUR:   Yes.  Are you able to resist an order for costs, Mr Hollier?

MR HOLLIER:   Addressing myself to the matter of costs, your Honour, I believe that throughout this entire process there has been an alternative available to the government that would not have incurred the costs that - previously, that, as I say, the decision to hold an inquiry was made because that was deemed to be an equitable way to proceed and that the inquiry that was held was not - clearly, was shown to be not just and it is directly the reason why we are in Court and why the costs are incurred.

So that we are now faced with a situation where the Minister can deny natural justice, which has been shown here was not afforded, and then

leave us with no other alternative than court processes and I believe that we provided services to the State, the public, free, at a considerable loss to ourselves and considerable saving to the government, so for there to be a situation where the government now turns round and says that you are denied justice under a ministerial inquiry, you must go to the courts, and you are denied justice in the courts because essentially the government has decided to spend public funds where they need not have decided to do that to resolve this matter, I cannot be held responsible for a claim that the costs should proceed against us and that our right to further proceed in the courts be determined by seeking bankruptcy.  I think that is a fundamental injustice in itself.

HIS HONOUR:   Yes, thank you, Mr Hollier.  I will not trouble you further, Ms Harris.

The application for order nisi is dismissed with costs. 

I will certify for the attendance of counsel.

I will adjourn.

MR HOLLIER:   Thank you, your Honour.

AT 12.27 PM THE MATTER WAS CONCLUDED