Jones v Civil Aviation Safety Authority & Anor

[2012] HCATrans 13

[2012] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M171 of 2011

B e t w e e n -

MILTON STANLEY KNIGHT JONES

Applicant

and

CIVIL AVIATION SAFETY AUTHORITY

First Respondent

MAGISTRATE DUNCAN REYNOLDS

Second Respondent

Application for expedition

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON MONDAY, 6 FEBRUARY 2012, AT 3.15 PM

Copyright in the High Court of Australia

MR P.G. NASH, QC:   If your Honour pleases, I appear with my learned friend, MR J.A. RIBBANDS, for the applicant.  (instructed by Maitland Lawyers)

MR. P.J. HANKS, QC:   Your Honour, I appear with MR N.A.T.HARRINGTON, for the respondent.  (instructed by Civil Aviation Safety Authority)

HIS HONOUR:   For the first respondent is it, Mr Hanks?  There is a submitting appearance for the second, I think?

MR HANKS:   It is indeed, your Honour.  I apologise for that inelegance.

HIS HONOUR:   Before counsel begin in this matter it may be that, subject to anything counsel may say, that this matter could be listed in the list of applications to be dealt with in Melbourne on Friday, 9 March if, at least, in the first instance, counsel were to shape their argument having regard to that possibility.  Yes, Mr Nash.

MR NASH:   If your Honour pleases, the decision of the trial judge and of the Full Court, erroneously, in our submission, treat as information on oath information contained in an exhibit to an affidavit where the deponent does not depose to the truth of the contents of the exhibit.  I should interpolate there, your Honour, that in the Full Court’s reasons at page 15 they verballed me by saying that I conceded this was not a strong argument.  That statement, which appears at transcript page 12, was said in the context of saying we would not argue something else. 

If the information contained in the exhibit is not information on oath then the warrant was not validly issued.  We say it is not appropriate for an appellate court to treat as valid an administrative Act which, on its face, is invalid because the invalidity has not been raised at first instance.  The second point we make is that it was implicit in the grant of leave to amend the notice of appeal that the court was prepared to deal with the issues raised by the new grounds they heard then in failing to do so. 

HIS HONOUR:   But these are matters, are they not, that you advance, are they, as going to whether there is a substantial prospect that leave would be granted?

MR NASH:   Yes, your Honour.

HIS HONOUR:   Given that it is at least possible that the application can be dealt with on 9 March, and that there has been a stay in place for as long as there has been, what do you say in answer to the arguments advanced by

CASA to the effect that time is running on and they are denied the fruits of their judgment obtained now twice?

MR NASH:   We say three things, really, your Honour.  The first is that the interviewing of witnesses could be taking place now, looking at the affidavit of Mr Rule.  Secondly, that the application for an expedition, if granted, brings this clearly within the principles enunciated by Justice Crennan in Rinehart at paragraphs – sorry, I have page 39 of the transcript, paragraphs 1680 to 1690, where her Honour said that:

In circumstances where it is possible for the applications for special leave to be heard on 9 March and, accordingly the stays sought are relatively short, I have not regarded it as essential to the grant of a stay that the applicants persuade me that their prospects of success on the applications are substantial –

But equally relevant is that any delay, so far as the respondent is concerned, is minimal and the basic information has been in the possession of the respondent now for some considerable time and no steps appear to have been taken to interview these witnesses who, once the tape is obtained, will be interviewed. et cetera.

HIS HONOUR:   Mr Nash, it may be useful if at this stage, perhaps, I heard from Mr Hanks, at least to see what target you are shooting at.  Mr Hanks, what is the attitude of CASA to the application on the assumption that the application can be brought on on 9 March?

MR HANKS:   Our attitude, your Honour, is that the degree of prejudice that CASA would suffer would obviously be significantly diminished if that were the case.  We are now looking at something like four weeks and a couple of days until 9 March.  So the arguments that we have advanced which were premised, of course, on the fact that the applicant had not sought expedition would, in that regard, be diminished. 

But we would still argue that however you want to formulate it, whether in terms of a substantial prospect of obtaining special leave or in terms of having an arguable case on special leave - I think it was the latter that Justice Crennan formulated in Rinehart as an appropriate test where the delay was relatively short - the applicant before this Court today is in a very poor position.

HIS HONOUR:   Well, if that is so, Mr Hanks, if that is so and I do not know whether it is, it will all come to a crashing end on 9 March, will it not?

MR HANKS:   That is true, your Honour.  That is true.

HIS HONOUR:   So what are we really engaged in?

MR HANKS:   Are we arguing about four weeks and three days?  I think your Honour is putting that to me rhetorically.

HIS HONOUR:   No, much more bluntly than that, Mr Hanks.

MR HANKS:   Your Honour knows that I am not always sensitive to subtle suggestions.

HIS HONOUR:   Do not go there, Mr Hanks.  What is the answer?

MR HANKS:   If this matter is fixed for hearing on 9 March, your Honour, then I would have to say that the prejudice to our client is not such that we could raise it in opposition to continuing the stay.  That is what I say, your Honour.  I apprehend that your Honour has in mind that it is preferable to keep everyone’s powder dry on the substantial arguments that may be put on the special leave application.  By that, I have in mind not only the party’s powder but the Court’s powder, that is, it is not appropriate for the Court to enter into an assessment of the merits of the application for special leave before it needs to. 

HIS HONOUR:   If I were minded to make an order in the following terms - it may, perhaps, bring matters to a head.  Perhaps, if you sit down for the moment, Mr Hanks, and if both counsel would be good enough to take a note of this, this might bring it to a head.  If I were to order that:

1.Subject to any further order of the Court or a Justice, the application for special leave in this matter be fixed for hearing in the list of cases to be heard in Melbourne on 9 March 2012 –

It is, in truth, a stay that is sought, is it not, not an injunction?

MR HANKS:   Yes, your Honour. 

HIS HONOUR:  

2.Stay the orders of the Full Court of the Federal Court of Australia made on 2 December 2011 until 4.15 pm, 9 March 2012 or further order.

3.Costs of the applications today be costs in the application for special leave. 

Now, would counsel seek to be heard further in respect of orders of that kind?  I do not aim to shut counsel out from putting such arguments as they see fit, but it may give counsel a target at which to shoot.  Mr Nash, would you seek to be heard against that.

MR NASH:   No, your Honour.

HIS HONOUR:   Mr Hanks?

MR HANKS:   Subject to one possible technical question, your Honour.

HIS HONOUR:   Yes.

MR HANKS:   The orders that were sought in the summons are including that an order made by Justice Marshall on 21 June be extended.  My concern is for the efficacy of the stay that our friends are seeking.  They thought it was necessary to obtain that second order in their summons – or to ask for that second order – and it may be that they are fight.  My friend, Mr Nash, is agreeing that I may have assisted them here.  Subject to that, your Honour, the respondent has nothing else to contribute other than to say that the respondent will be represented on the special leave application and make its arguments on the merits on that day.

HIS HONOUR:   Yes.  Where can I most conveniently find the text of the order made by Justice Marshall on 21 June 2011?

MR HANKS:   I am asking my friends whether they have a copy of the order.  As your Honour may recall, the application itself was dismissed by Justice Marshall on 6 June and on 21 June - we have not been able to locate it immediately, your Honour, we think it is coming up from our friend’s instructor.  The order that was made was that orders 2 and 3 of the orders made on 6 June be stayed until disposition of the appeal or until further order and the orders in question made on 6 June effectively gave to CASA liberty to uplift the material and inspect it.  So it was that liberty granted by orders 2 and 3 on 6 June which was stayed until disposition of the appeal or until further order on 21 June.

HIS HONOUR:   If I were to order – it would become order 3 – further order that orders 2 and 3 of the orders made by Justice Marshall on 6 June 2011 be stayed until 4.15pm, 9 March 2012 or further order, that would, I think, capture it sufficiently, would it not?

MR HANKS:   I believe so, your Honour.

HIS HONOUR:   So that, lest there be any doubt about it, the orders I am proposing are as follows: 

1.Subject to any further order of the Court or a Justice, the application for special leave in this matter be fixed for hearing in the list of cases to be heard in Melbourne on 9 March 2012.

2.Stay the orders of the Full Court of the Federal Court of Australia made on 2 December 2011 until 4.15 pm, 9 March 2012 or further order.

3.Further order that orders 2 and 3 of the orders made by Justice Marshall on 6 June 2011 be stayed until 4.15 pm, 9 March 2012 or further order.

4.The costs of the applications today are to be costs in the application for special leave.

Is there anything else that counsel would seek to raise?

MR HANKS:   No, thank you, your Honour.

MR NASH:   No, your Honour.

HIS HONOUR:   Very well.  There will be orders in those terms.

AT 3.31 PM THE MATTER WAS CONCLUDED