King v SA Electoral Cmr

[1998] HCATrans 281

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A6 of 1998

B e t w e e n -

JOHN KING

Applicant

and

S.A. ELECTORAL COMMISSIONER

Respondent

Office of the Registry
  Adelaide  No A12 of 1998

B e t w e e n -

JEAN SUTTON

Applicant

and

THE STATE OF SOUTH AUSTRALIA

Respondent

Directions Hearing

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 12 AUGUST 1998, AT 9.12 AM

Copyright in the High Court of Australia

_____________________

MRS J. SUTTON appeared in person.

HIS HONOUR:   I understand you would wish Mr King to speak for you in this case this morning.

MRS SUTTON:   If possible.  I am very nervous.

HIS HONOUR:   Yes, very well.  Just sit down, Mrs Sutton.

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:   Your Honour, in the matter of Sutton v State of SA, I appear for the State with my learned friend, MR G.J. PARKER.  (instructed by the Crown Solicitor for South Australia)

MR J. KING appeared in person.

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:  Your Honour, I appear for the Electoral Commissioner in that matter with my learned friend, MR G.J. PARKER.  (instructed by the Crown Solicitor for South Australia)

HIS HONOUR:   Now, the application in Mr King’s matter, that is the first matter, is a summons which was filed on 9 July 1998 seeking certain orders in relation to an application for special leave.  What do you say about that, Mr Solicitor?

MR SELWAY:   Your Honour, I might say that the matter arises because the application for special leave appears to make it a condition of the application that these orders are made and, as I understand it, the Registry has raised that matter and that had led to this application.

HIS HONOUR:   Yes.

MR SELWAY: In particular, it appears to be, if you like, a precondition for the application for special leave that no orders for costs be made in respect of Mr King and I think he has added to that on this basis the question of intervention. To deal with them briefly, your Honour, on the question of intervention we say that is a matter which the Court will need to determine as and when an application is made to intervene. On the face of it there would be some parties who would appear to have an interest and, in fact, intervened in the Supreme Court. Further, the matter may well raise a constitutional issue in the sense of whether the Court of Disputed Returns in this State - whether an appeal lies from such a court under section 73.

HIS HONOUR:   Yes.  I was looking at Holmes v Angwan.  You had better take a note of this, Mr King, it is important.  It is a case called Holmes v Angwan (1906) 4 CLR 297 and that case decided that - have you got a pen, Mr King?

MR KING:   I am just trying to locate my paperwork, your Honour.

HIS HONOUR:   We will wait until you find one.  I will say it again:  Holmes v Angwan (1906) 4 CLR 297 and the Court decided there that the Court of Disputed Returns in Western Australia was not the Supreme Court for the purposes of section 73 of the Constitution so that there was no appeal to this Court. What is being said by the Solicitor is that his position would be that that is true of South Australia as well.

MR SELWAY:   Your Honour, it would appear to us at the very least that that case and I think there may be others ‑ ‑ ‑

HIS HONOUR:   And it has been followed since.

MR SELWAY:   ‑ ‑ ‑ will need to be reconsidered and it may be they could be.  We make no final position on it, but that is certainly an issue that will need to be explored and it would necessarily then probably raise the issue about this Court’s jurisdiction when sitting as a Court of Disputed Returns.  So there is a potential for a number of interventions under section 78A of the Judiciary Act.  So all we say at this stage is that it is premature to make any order.  That is a matter that will have to be left until there are some applications.

On the question of costs we say, again, at this stage it would be premature.  The jurisdiction of the Court to make an order for costs arises when an application is made.  No application has yet been made though the Crown has - I identify that it will be seeking costs if the appeal proceeds.  We do make the point that it would not appear there is any information before your Honour which would bring Mr King within the poor persons provisions of Order 16 rule 26 and we do make the point that there is power under the Electoral Act of South Australia to award costs before Justice Prior.

So to the extent that the High Court’s recent consideration of costs in public interest matters might be relevant, at the very least one could say it would seem that costs will be at large.  So our submission on that is it is simply premature and to the extent that it is the case that Mr King is concerned at being at risk of costs, at the very least it is probably worth pointing out that both myself and Mr Parker, receiving a salary from the government, are not entitled to costs in the High Court for our attendance and our time.  So to that extent at the moment costs, if there are any at all, would be minimal.

HIS HONOUR:   Yes.  I think what it comes to is, as you have been putting it, and I think very fairly putting it, what it will come to is that this summons should be stood over to the determination of the special leave application and these matters cannot be decided by me sitting now in anticipation of a special leave hearing.

MR SELWAY:   I think that is right, your Honour, but from at least the application for special leave it is worth at least Mr King being aware of that fact.

HIS HONOUR:   That is right and I think Mr King has to consider some of these matters.

MR SELWAY:   There is certainly the potential for significant costs if special leave were granted, but really our position will be that it will not be granted and to that extent there will not be extraordinary costs incurred from ‑ ‑ ‑

HIS HONOUR:   Yes.  At the moment special leave would probably not be granted absent a challenge to the Holmes v Angwan line of cases.

MR SELWAY:   Yes, your Honour.

HIS HONOUR:   Yes.  So you would propose that the - I will ask Mr King about this in a minute, but you would propose that the summons be stood over to the hearing of the special leave application?

MR SELWAY:   Yes, your Honour.

HIS HONOUR:   And reserve any question of costs from today?

MR SELWAY:   Yes, but making the point that there are unlikely to be any if we were successful.

HIS HONOUR:   Yes.  What do you say about that, Mr King?

MR KING:   I simply accept the judgment of your Honour on this matter.  I am not a lawyer.  I cannot really argue the legal aspects of one thing or another.  I am a retired chemical engineer.  I have no legal experience and for that reason, your Honour, I will just leave it to your good judgment.

HIS HONOUR:   Yes, very well, but you really need to talk some person with legal skills in this area, you know.  It is a quite difficult area.

MR KING:   I appreciate that, your Honour.  It is always very difficult to understand the ins and outs of the legal system.  Unfortunately it is not designed for ordinary people to understand and ‑ ‑ ‑

HIS HONOUR:   Well, neither is chemical engineering.

MR KING:   ‑ ‑ ‑ my case, your Honour, is simply put in my affidavit and all the paperwork provided to the Court up to this stage 

HIS HONOUR:   Yes, I have read that.

MR KING:   I believe my case is strong and ‑ ‑ ‑

HIS HONOUR:   When was the election held?

MR KING:   Last October.

HIS HONOUR:   Yes, thank you, Mr King.

In the matter of the summons in matter No A6 of 1998 I order that the summons filed 9 July 1998 be stood over to the hearing of the special leave application and, secondly, I reserve any question of costs arising from the hearing today.

Now, in the second matter, which is Mrs Sutton’s matter, what do you say about that, Mr Solicitor?

MR SELWAY:   Your Honour, we would make basically the same submission, that it is premature.  I think the only distinguishing feature ‑ ‑ ‑

HIS HONOUR:   Is order 3 - paragraph 3 in the summons.

MR SELWAY:   About the “Lay adviser”?

HIS HONOUR:   Yes.

MR SELWAY:   Your Honour, I would not make submissions about that unless your Honour wanted assistance.  It is a matter within your Honour’s discretion and I would leave the matter to your Honour, but if your Honour wants assistance on any aspect of it, I am perfectly happy to make submissions.

HIS HONOUR:   Yes.  If Mrs Sutton so wishes, I think it probably will be appropriate for Mr King to do as she wishes.

MR SELWAY:   Perhaps if I could reserve the position in respect of a special leave application in due course.  One of the issues is the extent of the assistance and it is certainly not a matter we want to explore at any length, but we make no objection or comment on that course, your Honour.

HIS HONOUR:   Yes.

MR SELWAY:   The only other matter that may be relevant is that, again, going back to the question of costs in respect of public interest litigation and assuming for the moment that that is what this is, there is some restriction in the Equal Opportunity Act about awarding costs.  So it may be that that might become a relevant matter if and when the issue was considered, but apart from that we would say that the same orders ought to be made as your Honour made in the matter of Mr King.

HIS HONOUR:   Yes.  Now, there is a constitutional question lurking here, is there not, as to section 51(xxxi)?

MR SELWAY:   Yes, your Honour.  I might say I do not think that the Court will find in due course that that question fairly arises upon these proceedings but it is certainly referred to at the moment in Mrs Sutton’s material.

HIS HONOUR:   Yes.

MR SELWAY:   To put it another way, your Honour, it is entirely a State action.  There is no Commonwealth involvement at all.

HIS HONOUR:   That is what I thought, yes.  As we know, section 51(xxxi) binds the Parliament of the Commonwealth but not the Parliament of the State.

MR KING:   Your Honour, the child taken from Mrs Sutton was, in fact, taken by a member of the Commonwealth Government at the time.

HIS HONOUR:   Yes, but she has not sued the Commonwealth Government.

MR KING:   Okay.

HIS HONOUR:   So that had better be thought about, but at the moment ‑ ‑ ‑

MR KING:   We are simply asking a ruling of whether she is or not entitled to compensation under those circumstances.

HIS HONOUR:   Yes, I follow that. 

This summons, which is the summons filed 9 July in matter No A12 of 1998, should be stood over to the hearing of the special leave application.  Secondly, I reserve any question of costs arising from today’s hearing.

What I suggest, Mr King, is that on the hearing of the leave application Mrs Sutton ask the Court again as she did to me this morning.  I think there would probably be no difficulty.  Yes, thank you, Mr King.

In each of those matters I make those orders as indicated and I now adjourn.

AT 9.27 AM THE MATTER WAS ADJOURNED