Lee v Commonwealth of Australia

[2012] HCATrans 225

[2012] HCATrans 225

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S201 of 2012

B e t w e e n -

DR IL-SONG LEE

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions hearing

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 18 SEPTEMBER 2012, AT 9.35 AM

Copyright in the High Court of Australia

MS B.J. TRONSON:   May it please the Court, I appear for the plaintiff.  (instructed by Unsworth Legal Pty Ltd)

MR T.M. HOWE, QC:   May it please the Court, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, why should this matter be remitted to the Federal Court to try this question as to whether or not in the particular instance of the particular panel that dealt with your client there was or was not the necessary consultation as to its formation?

MS TRONSON:   Your Honour, in my submission, the legislation which was introduced, the Health Insurance Amendment (Professional Services Review) Act 2012, prevents my client from even raising that argument in his present proceedings.  That is the complaint of the plaintiff in the matter before this Court.

HIS HONOUR:   Why is that?

MS TRONSON:   Your Honour, might I take you to the Act?

HIS HONOUR:   Yes.

MS TRONSON:   It is in the plaintiff’s bundle in the first tab.

HIS HONOUR:   Yes, I have it.

MS TRONSON:   Your Honour will note in item (1) of Schedule 1, sub‑item (1) ‑ ‑ ‑

HIS HONOUR:   Yes:

to the extent that the thing purportedly done would, apart from this item, be invalid –

MS TRONSON:   Yes, your Honour.

HIS HONOUR:   Well, that is a question for determination.

MS TRONSON:   Your Honour, in my submission, what that sub-item does is it directs the court to find that a thing done or purportedly done would be valid no matter whether it would have been valid or invalid, absent this legislation.

HIS HONOUR:   I do not understand that.  Where does it say that?

MS TRONSON:   Your Honour, in my submission, that is a practical effect.  It is not the literal reading of that provision.

HIS HONOUR:   No.  If it is not the literal reading, why should it be given some so‑called practical operation which would attract invalidity?

MS TRONSON:   Your Honour, although it is not the literal meaning, in my submission, it is the only workable meaning.

HIS HONOUR:   Why?

MS TRONSON:   By stating that if something was invalid, or would have been invalid, it will be declared or deemed to be valid, then the only result of an argument that a thing was invalid is that no, in fact it was valid.  It directs the court to find in any event that certain things or acts were valid.

HIS HONOUR:   It is subsection (2), is it not?

MS TRONSON:   I am sorry; yes. 

HIS HONOUR:   Subsection (1) is the jurisdictional fact, so to speak, is it not?

MS TRONSON:   Yes, your Honour; I withdraw that.  Subsection (2) is the deeming provision.  Subsection (1) is the part which says where it applies.  The item taken ‑ ‑ ‑

HIS HONOUR:   (2) assumes (1) is made out.

MS TRONSON:   Yes, your Honour, but the operation of the item as a whole requires the court to find in any event that certain things or acts done pursuant to invalid appointments ‑ ‑ ‑

HIS HONOUR:   Anyhow, why can the Federal Court not sort that out?

MS TRONSON:   The Federal Court, your Honour, could sort out whether or not appointments were invalid.

HIS HONOUR:   No; sort out your point.

MS TRONSON:   About the invalidity of the act?

HIS HONOUR:   Yes.

MS TRONSON:   The Federal Court could but, in my submission, this is a matter of significant public importance.  The principles on which the plaintiff ‑ ‑ ‑

HIS HONOUR:   Whether it is of significant public importance depends on the prima facie weight that your argument has.  Now, what is the position of your client?

MS TRONSON:   The position of my client in terms of the facts that need to be resolved?

HIS HONOUR:   The position of your client, according to the Commonwealth, is that there was no failure invalid appointment if the panel had dealt with your client.

MS TRONSON:   Yes, your Honour, that is ‑ ‑ ‑

HIS HONOUR:   That is a question of fact that has to be sorted out.

MS TRONSON:   Your Honour, in my submission, that fact does not need to be resolved before the validity of the act.

HIS HONOUR:   Well, that is a question.  Why should that be so?

MS TRONSON:   The immediate right which the plaintiff says has been affected by the amending Act is his right to have his application heard by the Federal Court.  In my submission, this item ‑ ‑ ‑

HIS HONOUR:   Say that again.

MS TRONSON:   The immediate right upon which the plaintiff relies is his right to have his application as to validity of appointments ‑ ‑ ‑

HIS HONOUR:   As to validity of appointment?

MS TRONSON:   Yes, his right to have that application heard by the Federal Court.  In my submission, this item, if it applies, renders his arguments before the Federal Court unarguable.  It removes, if it applies, his right to have that argument in the Federal Court about validity of appointments.

HIS HONOUR:   That seems entirely adapted to your client’s particular circumstances, it seems to me at the moment.  What do you say about the Builders Labourers’ Case 161 CLR 88 at 96 to 97? I am looking at subsection 5(b).

MS TRONSON:   Might I just find that case?

HIS HONOUR:   Yes, where there is a reliance on Liyanage, the Privy Council case, and it did not get very far.

MS TRONSON:   Your Honour, I accept that but, in my submission, this case is distinguishable from ‑ ‑ ‑

HIS HONOUR:   Why can the Federal Court not sort that out?

MS TRONSON:   In my submission, it is the kind of question which this Court often considers and it is the kind of question which might well be brought to this Court whether on an application for special leave.  The issues involved are such that this Court often considers in determining whether or not to grant special leave.  The importance of the issues involved, the application of the Liyanage Case, the distinction drawn between the Commonwealth BLF Case to which your Honour has made reference and the New South Wales BLF Case which the New South Wales Court of Appeal heard at around the time ‑ ‑ ‑

HIS HONOUR:   I know that, but I am focussing on what this Court said in Builders Labourers.  Now, how do you distinguish that?

MS TRONSON:   Pardon me one moment, your Honour. 

HIS HONOUR:   With reference to 5(b) ,which is your situation, is it not?

MS TRONSON:   Your Honour, in my submission – I apologise; I do not have the case in front of me but, in my submission, the case was distinguishable.  The section in the Commonwealth Builders Labourers’ Case said that the Builders Labourers’ Federation was to be – I cannot remember the word used but it was essentially ended from the date of the legislation.  The New South Wales legislation, to similar effect, stated that the Federation was deemed to be and to always have been ineffective or something that did not exist.  That, in my submission, is more similar to the legislation here where sub-item (2) states:

The thing purportedly done is as valid and effective, and is taken always to have been as valid and effective –

That is more analogous, in my submission, to the language used in the New South Wales legislation in the BLF Cases than to the Commonwealth legislation which applied only from the time of the legislation itself.

HIS HONOUR:   I will hear what Mr Howe has to say.

MR HOWE:   Your Honour, in our submission, there are four basic propositions which militate against the matter remaining in this Court.  Firstly, the applicability of the amending Act, as your Honour has seen from subsection (1) of item 1, depends on a factual basis which is not only not agreed but highly controversial and has not been established and it is a live issue joined between the parties in pending proceedings before the Federal Court.  In our submission, the very existence of those pending proceedings makes those proceedings the natural home, as it were, for the adjudication of the applicability of the amending Act.

Secondly, your Honour, there would be at least some doubt as to the standing of the plaintiff absent adjudication of that factual issue in his favour.  Thirdly, contrary to the submission advanced by the plaintiff, the existence of the amending Act and its purported effect do not deprive the plaintiff of the opportunity to contest the validity of the amending Act and to challenge the validity of the appointments that are issue in the Federal Court proceedings.

Finally, your Honour, and perhaps most importantly, the plaintiff presses upon this Court the adjudication of a constitutional issue which, in our submission, is simply not a necessary issue for adjudication unless and until the factual basis for the attraction of the operation of the amending Act has been made out.  For all of those reasons, your Honour, we press for remittal of this matter to the Federal Court.

HIS HONOUR:   What is the identification of the pending proceeding in the Federal Court?  Does it have a number?

MR HOWE:   It is matter No. 622 of 2010, your Honour.

HIS HONOUR:   In Sydney Registry?

MR HOWE:   It is a matter pending before her Honour Justice Katzmann in the Sydney Registry of the Federal Court.

HIS HONOUR:   622 of 2010?

MR HOWE:   Yes, your Honour.

HIS HONOUR:   It is S622, I suppose?

MR HOWE:   Yes, your Honour. 

HIS HONOUR:   Yes, thank you.  Is that correct?

MS TRONSON:   Your Honour, the prefix is NSD rather than S.

HIS HONOUR:   Thank you.  What do you say in response to that?

MS TRONSON:   Your Honour, the factual context which the Court would need to consider in order to determine this case depends whether or not your Honour accepts my submissions or my learned friend’s submissions as to when the right or when the application of the Act arises.  On my submission that the Act prevents my client from relying on his grounds in the Federal Court, the factual context which this Court would need to consider would only be that my client has an arguable case in the Federal Court.  It is my understanding that that is not controverted by the defendant. 

In relation to the question of standing, that also comes back to the question of when the amending Act can be said to apply.  Once again, on my submission, it is the right of the plaintiff to have his application heard on the grounds that were arguable, absent the amending Act, until 27 June this year.  It is that right to have that application heard which is the immediate right at issue and which gives rise to a matter in the constitutional sense and standing, in my submission, is bound up inherently with the question of matter. 

On that note, the question of necessity in terms of determining the validity of an act is also bound up in the question of what is a matter and whether or not there is a hypothetical question.  In my submission, again because the immediate right of the plaintiff is the right to have his matter heard, there is no hypothetical question and it is not a question of necessity.  There is a matter which arises for this Court’s, in my submission, determination.

In respect of whether or not the amending Act prevents a challenge to validity of the appointments to the panel, once again, while I accept that in terms a declaration of invalidity could still be made, there are two points to note about this.  First of all, the grounds that are raised by my client in his application before the Federal Court do not only seek a declaration of invalidity in relation to the appointments of panel members; those grounds also seek declarations and other consequential orders as to the invalidity of the consequential acts and things done as a result of the appointments of the panel members.

Those grounds are unarguable, in my submission, if the amending Act applies.  In relation to the declaration of invalidity of the panel members itself, because of the amending Act, that would be a declaration which lacked utility.  As your Honour knows far better than I do, the lack of utility for declaratory relief is a factor often used as a reason to refuse discretion to grant that relief.  It is those reasons for which I say that my client’s application in the Federal Court is doomed if the amending Act applies.  It has no reasonable prospects of success if the amending Act applies and, accordingly, the question of ‑ ‑ ‑

HIS HONOUR:   What do you say to Mr Howe’s point that the argument you are putting should be hooked together with the arguments and submissions in evidence in 622 of 2010?

MS TRONSON:   Your Honour, as my learned friend has said, the question of consultation is one that is contested in the Federal Court.  The applicant will file evidence, has filed some, and I understand the Commonwealth will file other evidence.  The process of determining whether or not the appointments are invalid will involve a lengthy hearing and will be a lengthy process.

HIS HONOUR:   Why, actually?

MS TRONSON:   Partly because the documents that were provided by the Commonwealth and the fact that the Commonwealth will, we are told, adduce further evidence, other than the documentary evidence – this will result in the need to examine and cross‑examine witnesses.

HIS HONOUR:   How lengthy?

MS TRONSON:   How lengthy?

HIS HONOUR:   Yes.

MS TRONSON:   Your Honour, I have not seen all of the evidence that the Commonwealth would adduce.  I have seen some of it, but it would probably add at least a day to the hearing.

HIS HONOUR:   Yes, go on.

MS TRONSON:   It may not be significant compared to commercial matters, but in the context of judicial review hearings, in my submission, that is significant.  The question of whether or not the amending Act applies, if it applies to prevent my client from relying on the invalidity of panel appointments at all, which, in my submission, it does, then the question of the validity of the amending Act should be determined before my client is put to the expense of needing to run the trial on consultation at all.

HIS HONOUR:   Yes.  What else do you want to say?

MS TRONSON:   Nothing further, your Honour.  May it please the Court.

HIS HONOUR:   Yes, I think the arguments which the Commonwealth advances insofar as they point in favour of an order for remittal to the Federal Court and linking with the proceeding already there, NSD 622 of 2010, should be accepted.  On the summons filed 23 August 2012 the Court orders that:

1.The proceeding be remitted to the Federal Court of Australia, New South Wales Registry;

2.The proceeding continue in the Federal Court as if the steps already taken in the proceeding in this Court had been taken in that court;

3.The Registrar of this Court forward to the proper officer of the Federal Court photocopies of all documents filed in this Court and of the transcript of today’s proceeding;

4.The costs of the proceeding in this Court be costs and cause;

5.The costs of the proceeding to date of this order be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to the Federal Court and in the discretion of that court.

Otherwise, the summons filed 23 August is dismissed.

MS TRONSON:   May it please the Court.

MR HOWE:   May it please the Court.

AT 9.54 AM THE MATTER WAS CONCLUDED