Hyams v Buchanan

[2004] HCATrans 17

[2004] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M204 of 2003

B e t w e e n -

DAVID COLIN HYAMS

Applicant

and

ROSALYN BUCHANAN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 FEBRUARY 2004, AT 9.30 AM

Copyright in the High Court of Australia

MR T.V. HURLEY:   May it please the court, I appear on behalf of the applicant.  (instructed by Gadens Lawyers)

MR C.M. MAXWELL QC:   May it please the Court, I appear for the respondent.  (instructed by Holding Redlich)

GUMMOW J:   Yes.  Mr Hurley.

MR HURLEY:   Your Honour, this is an application for special leave for appeal against the decision of Mr Justice Gillard sitting as the Court of Disputed Returns in May of last year.  There are, in our submission, two points of special leave interest that arise in this.  The first is whether the appeal is competent in light of the decision of the High Court in 1904 in Holmes v Angwin and the second is, if an appeal lies, whether his Honour erred in the way he applied or treated the decision of this Court in Sykes v Cleary.

Your Honour, as to the first point, we say that the authority of the decision in Holmes v Angwin has been removed by the effect of the decision of this Court in Sue v Hill.  I have copies of Sue v Hill available for the Bench and also the decision of the Court in Hilton v Wells.

HAYNE J:   Assume an appeal is competent for the purposes of argument.  Is a fundamental step in your argument that the same expression has to be given different meanings in two sections of the Act?

MR HURLEY:   It is, your Honour.

HAYNE J:   Why would you do that?  Why would you take a single expression in one section and say it means A, and then a few sections on say, “Oh, no, it doesn’t mean A, it means B”.

MR HURLEY: Because, your Honour, in section 49 the expression “the Crown” refers, we say, as Justice Gillard correctly decided, to the Crown in right of the State, the Commonwealth and other States, but in section 60 it must apply only to the Crown in right of the State otherwise section 60 of the Act has no work to do in reference, as it is, to service personnel, who are servants of the Crown, were referred to in section 60.

GUMMOW J: Section 61, is it?

HAYNE J: Sections 49 and 61, is it not?

MR HURLEY: Section 60, your Honour, I think, is a reference to the military and section 61 ‑ ‑ ‑

HAYNE J: But it is the expression in section 49:

any office or place of profit under the Crown, or who is in any manner employed in the public service of Victoria for salary wages fees or emolument ‑ ‑ ‑

MR HURLEY:   Yes, your Honour.

HAYNE J: That expression appears in section 61.

MR HURLEY:   Yes, your Honour.

HAYNE J: Yes. You say it is to be given in a different meaning in section 61 from the meaning it has in section 49.

MR HURLEY:   Yes, your Honour.

HAYNE J:   Why would you do it?

MR HURLEY: Because of the presence, your Honour, of section 60 and because of the full text of section 61. Justice Gillard, in our submission, briefly identified section 49 as enacting the principle that servants of the Crown in whatever capacity are not entitled to be members of Parliament. In section 61, we submit that the text of the provision, referring as it does to the Victorian Acts; the operation of the provision, referring at the end as it does to severing relationships, suggests that it is limited to the Crown and, more importantly, section 60 has no work to do if section 61, the reference to the Crown, includes the Commonwealth Crown.

The Act has not used “the Crown” in a unified way.  In relation to the disqualification by interest under contracts the Act refers to her Majesty - the point is made, your Honour, in section 55 of the Act in paragraphs (a), (b), (c) and (d), the Crown is referred to differently.  In paragraph (a) relating to contracts with pecuniary interest it is a reference to “Her Majesty in right of the State of Victoria” and then in paragraph (d) the disqualification by “office or place of profit” is referred to.  It is simply “the Crown”, the conclusion being that ‑ ‑ ‑

GUMMOW J:   These various sections have a long history in the constitutional history of Victoria, do they not?

MR HURLEY:   They do, your Honour, but they reflect basic principles in the separation of the Executive ‑ ‑ ‑

GUMMOW J:   Going a long way back before the 1975 Act.

MR HURLEY: Yes, your Honour, they do have and his Honour Justice Gillard addressed some of that in his reasons, but we say the construction of them, as they appear, leads to the conclusion that the same term “the Crown”, it applies to the Commonwealth Crown and the Crown in right of Victoria and we would submit the other Crown, in right of New South Wales or South Australia in section 49, but in section 61 it relates only to the Crown in right of Victoria because the operative provision severs a relationship between that Crown and another person.

We submit, as the submission of his Honour rejected, that the Parliament has no power to sever relationships between a person resident in Victoria who is entitled to vote and the Crown in right of the Commonwealth of New South Wales or South Australia, which section 61 purports to do, and that led to the reference in his Honour’s judgment to extraterritorial operation.

There is another earlier quote, though. His Honour did not decide the case on section 61. He decided it a step before that. He decided that the respondent became qualified to be a candidate by resigning between the date of the election and the date it was declared.

HAYNE J:   If you are to get home – if we gave you leave – it is an essential step to your argument that there be this deferential reading, is it not?

MR HURLEY: Yes, your Honour. We say that the election takes place on polling day and that on that day she was disqualified because section 49 relates to the Crown in all its State and Federal levels and we do say that – yes, your Honour. We submit that that question on its own, in our submission, is…..It was not said to be part of his Honour’s reasoning because he stopped beforehand but it is a question, in our submission, that warrants a grant of special leave and as your Honour will have seen in our submission, the matter cannot be ventilated anywhere else in Victoria because of the amendments made by the Electoral Act and the Constitution Act.  But, yes, your Honour, it is an essential step that the word have different meanings in different provisions, but we submit the construction, particularly the presence of section 60, supports that because there is no other explanation for section 60.

The other point, your Honour, is that we do not appeal against that decision of Justice Gillard. Our opponents do, because if leave is granted to us they will file a notice of contention. The question that is currently before the Court is whether his Honour erred in the result that he reached and we do not appeal against – and we seek leave to appeal against his reasoning in relation to section 49. Your Honour, that is ‑ ‑ ‑

HAYNE J:   I understand the point.

MR HURLEY:   Yes.  Unless I can be of further assistance, your Honour, our outline deals ‑ ‑ ‑

GUMMOW J:   Yes, thank you, Mr Hurley.  We do not need to call on you, Mr Maxwell.

MR MAXWELL:   If the Court pleases.

GUMMOW J:   Even if an appeal to this Court would be competent, a question which it is unnecessary to decide, there are insufficient prospects of success of an appeal on the grounds concerned with the construction of sections 49 and 61 of the Constitution Act 1975 (Vic) to warrant a grant of special leave. Accordingly, special leave is refused.

Do you seek costs, Mr Maxwell?

MR MAXWELL:   I do, if the Court pleases.

GUMMOW J:   Refused, with costs.  Thank you, gentlemen.

AT 9.38 AM THE MATTER WAS CONCLUDED