Lee v Commonwealth of Australia - [2012] HCA 62

HIGH COURT OF AUSTRALIA
FRENCH CJ
DANIEL THOMAS LEE & ANOR PLAINTIFFS
AND
COMMONWEALTH OF AUSTRALIA & ANOR DEFENDANTS
Lee v Commonwealth of Australia
[2012] HCA 62
29 November 2012
C5/2012
ORDER
1.The proceeding be remitted to the Federal Court at the Melbourne Registry.
2.The proceeding continue in that Court as if the steps already taken in the proceeding in this Court have been taken in that Court.
3.The Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.
4.The costs of the summons be costs in the proceeding.
5.The costs of the proceeding to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that Court and in the discretion of that Court.

Representation
P E King for the plaintiffs (instructed by Maloney Anderson Legal)
C L Lenehan with D M Forrester for the defendants (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

FRENCH CJ. By proceedings commenced by writ of summons on 13 September 2012, the plaintiffs, as representatives of a group of water users said to have the same interests, seek declarations that particular parts of the Water Act 2007 (Cth) are invalid by operation of ss 100 and/or 99 and/or 92 of the Constitution, and on other bases.
The plaintiffs filed a summons for directions, returnable today, and were seeking referral of certain questions for determination by a Full Court of this Court. The defendants have made submissions opposing referral and seeking remitter of the proceedings to the Federal Court pursuant to s 44 of the Judiciary Act 1903 (Cth) on the basis, inter alia, that there are questions of fact raised on the statement of claim which are unlikely to be able to be resolved by agreement and which would make a proceeding by way of demurrer inappropriate.
The plaintiffs today have sought an adjournment of this directions hearing for a period of a few weeks in order to enable discussions to take place between their representatives and those of the defendants, with a view to agreeing facts which would support a case stated and referral of questions of law to a Full Court. The defendants were prepared to consent to an adjournment, but only on the basis that the very recent publication of the Basin Plan, made under the Water Act 2007 (Cth), is a matter which requires consideration by the plaintiffs and may affect their pleading. However, that consent was not offered on the basis that it is likely that there will be an agreement about the facts suitable to support a case stated and referral of questions to the Full Court.
Section 44(1) of the Judiciary Act 1903 (Cth) provides that:
"Any matter other than a matter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] HCA 62
Decision Date: 29 November 2012

CaseChat Overview and Summary

In *Lee v Commonwealth of Australia*, the applicant, Lee, brought a proceeding before the High Court of Australia. The nature of the dispute is not detailed in the provided text, but the matter came before the Court by way of a case stated, with questions reserved for determination.

The High Court was required to consider its jurisdiction and powers under the *Judiciary Act 1903* (Cth), specifically concerning the procedure for handling cases stated and the power to remit proceedings. The central legal issues revolved around the appropriate course of action when a matter is brought before the High Court in this manner, and whether the Court should retain the proceeding or remit it to a lower court.

French CJ, applying the provisions of the *Judiciary Act 1903* (Cth), particularly sections 18 and 44, determined that the appropriate course was to remit the proceeding to the Federal Court of Australia. The Court reasoned that the Federal Court was the proper forum for the matter to be heard and determined, and that the steps already taken in the High Court should be recognised as having been taken in the Federal Court.

Consequently, the High Court ordered that the proceeding be remitted to the Federal Court at the Melbourne Registry, with directions for the continuation of the matter and the transfer of relevant documents. The costs of the summons and the proceeding were to be determined according to the scales applicable to each court, with the discretion of the Federal Court to apply thereafter.

Orders

Orders of the court

1. The proceeding be remitted to the Federal Court at the Melbourne Registry.

2. The proceeding continue in that Court as if the steps already taken in the proceeding in this Court have been taken in that Court.

3. The Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.

4. The costs of the summons be costs in the proceeding.

5. The costs of the proceeding to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that Court and in the discretion of that Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ

Full text does not contain this section.