Lindsey v Department of Defence

[2003] HCATrans 733

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M38 of 2003

B e t w e e n -

DAVID JAMES LINDSEY (ALSO KNOWN AS DAVID JAMES SJOSTROM‑CLEMENTS‑LINDSEY)

Plaintiff

and

THE DEPARTMENT OF DEFENCE OF THE COMMONWEALTH OF AUSTRALIA

Defendant

Chamber summons

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 11 JUNE 2003, AT 9.35 AM

Copyright in the High Court of Australia

MR D.J. LINDSEY appeared in person.

MR M.D. WILSON:   If your Honour pleases, I appear on behalf of the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Wilson, it is your application, I believe, is it not?

MR WILSON:   It is, your Honour.

HIS HONOUR:   I have read the papers in the matter and you therefore should assume that I am generally familiar with the matter but you should take such course as you think best.

MR WILSON:   Your Honour will obviously then have appreciated that this is an application for relief under Order 26 of the High Court Rules.  In support of the summons, there are three affidavits.  Firstly, there is an affidavit sworn by Jenny Proimos dated 11 April 2003, and there are two affidavits of Mr Lindsey dated 17 April 2003 and a further affidavit dated 10 June 2003.  Your Honour, the reason why the defendant brings this summons is very simply that the defendant has difficulty discerning what the plaintiff’s cause of action is.

HIS HONOUR:   Why is it not a claim for damages for negligence, at least in part, damages for personal injury?

MR WILSON:   I am sorry, your Honour?

HIS HONOUR:   Why is it not simply a case in part of a claim for negligence?

MR WILSON:   If it is, your Honour, and that is the only claim that Mr Lindsey seeks to make, then my only submission would be – and I accept that that on the statement of claim as it currently exists is a potential claim – it is mooted, your Honour.  The issue is raised.  Mr Lindsey asserts in his statement of claim that he does not have to prove negligence but then goes on to say “but otherwise”.  So he alludes to it.

HIS HONOUR:   It seemed to me that what Mr Lindsey said in his statement of claim was, “Because of the award of compensation, there is an admission of liability.  I am entitled to further damages”.  That claim framed in that way may on its face have some difficulties about it, but he then goes on to say, as I understand it, “I don’t have to demonstrate that the Commonwealth was negligent but they were and, because they were, I’m entitled to damages on that account”.  That seems to be a way of reading what he says.

MR WILSON:   Yes, your Honour, and I would not dispute that that is a possibility on the pleading.  The position of the defendant is simply this, your Honour:  if Mr Lindsey’s claim is in negligence and he wishes to pursue a claim in negligence, then my only submission is that it should be pleaded as a claim in negligence.  I would not be submitting to your Honour this morning that he should be precluded from amending his statement of claim to advance a case in negligence.

HIS HONOUR: If we were to get to that position – and I understand there is a condition: if we get there – ordinarily this Court would not deal with a claim of that kind. Ordinarily we would be looking to remit it under section 44 of the Judiciary Act.

MR WILSON:   Yes, your Honour.

HIS HONOUR:   That happened with the 1999 action and there then was an order which if certain things did not happen, that action would stand dismissed.  As I understand it – correct me if I am wrong – the condition not being met, the action was dismissed.  Is that so?

MR WILSON:   Indeed, your Honour, that is my understanding.

HIS HONOUR:   What happens if I send this back to the County Court now?  Can I flag what lies behind my question so that you understand it.  It is not evident to me why the order made under the Supreme Court Act forbidding Mr Lindsey, amongst other things, from continuing proceedings in inferior courts, presumably inferior courts in Victoria, is an order that would bite in relation to an action commenced in this Court and remitted under section 44. It is not evident to me because it seems to me there is a question whether, when the remitter is made – and section 44 of the Judiciary Act then provides in 44(3)(a) that the court to which the remitter is made “has jurisdiction in the matter” – that an order made under State legislation can preclude the prosecution of that proceeding.

Perhaps I am starting at shadows, perhaps I am erecting windmills, perhaps I am erecting straw men, whatever metaphor you like to employ, but it is not clear to me that there is not a section 109, that the Judiciary Act by the grant of jurisdiction to the County Court on remitter from this Court is not inconsistent with the Supreme Court Act to the extent to which it would forbid and the order made under the Supreme Court Act to the extent to which it would forbid.

Where is all that leading me?  It is leading me to this point, Mr Wilson.  At the moment I am minded to simply remit the action to the County Court where, if you have some complaint about the pleadings, you can fight that out in the ordinary way and that court can deal with it.  But I am not going to remit it if it is apparent that there would then emerge some fight about whether the action can continue in the County Court.  If the Commonwealth were of the view that the order did not bite – that is the order of Justice Kellam did not bite – then there would be no impediment to my remitting it.

If the Commonwealth were of the view, on the other hand, that yes, the order does bite, then there is a question raised about whether I should remit.  How we deal with that question is perhaps a matter for further argument.  All that being said, does the Commonwealth yet have a view on what would happen if I were to remit it?  If it does not, then let us cope with that, but if it does have a view, let me understand it now.

MR WILSON:   Your Honour, I do not have formal instructions about that but what I have been looking at, as your Honour has been outlining your thoughts on the matter, is the order of his Honour Mr Justice Kellam.

HIS HONOUR:   In terms would bite.

MR WILSON:   Yes, on the basis ‑ ‑ ‑

HIS HONOUR: The only question then is a section 109 of the Constitution question, whether the order couched in general terms can preclude the exercise of federal jurisdiction by the County Court on remitter from this Court, a jurisdiction which is granted pursuant to section 44(3) of the Judiciary Act 1903 (Cth). As I say, there seems to me to be a question about that to which attention may not yet have been given. I do not for the moment want simply to remit it if the consequence is that the action is immediately barred, because that would be a matter which should be taken into account in deciding whether to remit it. Whether it precludes remitter or encourages remitter, I simply for the moment have no view.

MR WILSON:   Yes, your Honour, I understand the point.  Your Honour probably appreciates that Mr Lindsey has in the past, according to his affidavit of 10 June of this year, sought leave and successfully been granted leave of the Court ‑ ‑ ‑

HIS HONOUR:   But the question is:  does he need leave to continue an action commenced in this Court?  Can a State statute empower a State court to say that an action commenced in this Court cannot be continued on remitter from this Court?  That is the question.  It is not self‑evident that the answer to it is yes.

MR WILSON:   I am glad it is not self-evident to you, your Honour, because it is not self-evident to me either.  I can only say to your Honour

about that that perhaps it needs some consideration on the defendant’s part as to what their attitude would be to potential remission to the County Court.

HIS HONOUR:   What I have in mind is this.  As I understand your complaint – again, correct me if I am wrong – your complaint is that the statement of claim as it now stands might, it might not, raise a claim for negligence; it might, it might not, raise other claims.

MR WILSON:   Yes, your Honour. 

HIS HONOUR:   If it raises a claim for negligence, do you say that the action should be terminated summarily?

MR WILSON:   No, your Honour, we do not make that submission at all.

HIS HONOUR:   I understand that.

MR WILSON:   We accept that that is open to be properly pleaded and pursued.

HIS HONOUR:   On its face then, it seems to me that those are matters better dealt with in some court of trial.  On its face, it seems to me they are better dealt with in the County Court.  My present inclination is simply to stand your application over for mention next Monday – it would have to be, I am afraid, next Monday because of the way the sitting calendar works – to understand then what the Commonwealth’s attitude would be if an order for remitter were made, that is what its attitude would be to the question whether the order of Justice Kellam has any operation relevantly.

MR WILSON:   Yes, your Honour.  We would appreciate that opportunity and certainly by that time we would have a clear position of what the defendant’s approach would be in the event of it being remitted to the County Court.

HIS HONOUR:   Yes.  Mr Lindsey, you have listened to what I have had to say.  What I am at the moment considering doing is simply adjourning the matter over to next Monday at 10 o’clock for mention then, not for full argument, to see whether there is any basis for arguing against remitting this matter to the County Court where, if it were remitted, at least one outcome would be that the matter would simply go on in the ordinary way without the need for you to obtain leave to continue the proceeding.

MR LINDSEY:   I understand what you are saying to me, your Honour.  May I speak informally on that issue, meaning no disrespect to your learnedness.  This is a layman thought.  In relation to that issue of remitting down before an inferior jurisdiction – I do not like to use that term “inferior”, but a lower jurisdiction – if that is such, would I not be invoking federal jurisdiction in that State court?  If such, does not the invoking of that federal jurisdiction outrank the State Act, so to speak, allowing me that avenue to proceed?

HIS HONOUR:   It seems to me that that is at least arguable, Mr Lindsey.  I have not heard what the Commonwealth says against that yet, but it seems to me that at least what you say is an arguable proposition and if it is right – I do not say yet that it is – that would be reason enough to refer the matter to the County Court where your action could proceed in the ordinary way.

MR LINDSEY: I have read the Constitution, so to speak, but if on the other hand that is not the case and remitting it back means I have to go through the process of seeking leave of the Supreme Court to enter into or before the County Court of the State of Victoria at Melbourne, if there is no opposition by the Australian Government Solicitors for and on behalf of the defendant and they allowed consent in relation to that issue, it would be a lot more easier for me to convince a justice of the Supreme Court of the State of Victoria at Melbourne to grant me leave.

HIS HONOUR:   I understand that.

MR LINDSEY:   In relation to my statement of claim, the statement of claim was drafted on law, 1971 Act and based on the 1988 Act, the various sections of which I have referred to in my affidavit material I have there, your Honour, for your information, but in relation to the Department of Defence being the defendant, that is correct.  My claim is against the Department of Defence and not against Comcare Australia.  As such – I am not reading my affidavit material verbatim, but the 1988 Act says I must pursue the claim against the prescribed government authority and not Comcare.  As such as is the case, then my claim against the Department of Defence of the Commonwealth of Australia is justifiable, it is based on law, and the defendant as entitled is correct.

My claim against the Department of Defence is by determination of liability, 23 August 1977, which clearly states that the Department of Defence are to pay me compensation pursuant and by the provisions of the 1971 Act.  Back then they did pay me three or four days sick leave reimbursement for the time away from my duties with Department of Defence and they did pay the medical expenses, but they are only two heads of compensation under the 1971 Act.  There are areas of claim outside the Act which are common law and have to be pursued before courts.

Your Honour, look, back in 1999 – I am speaking informally in relation to the first matter against the Department of Defence – the reason I

requested it be remitted back before a lower jurisdiction was I panicked.  I was run down on 27 August 1999.  I and my daughter were injured.  I have enemies under the State compensation scheme, HIH Insurance, and I do have enemies that are solicitors of the Supreme Court of the State of Victoria at Melbourne.

HIS HONOUR:   We seem to be straying a fair way, Mr Lindsey, from the question, which is:  is there any reason not to adjourn the application to next Monday the 16^th?

MR LINDSEY:   No, there is no reason whatsoever, your Honour.

HIS HONOUR:   I think that the appropriate course to adopt, Mr Lindsey, is to allow the Commonwealth to obtain their instructions about their attitude towards remitter.  For that purpose I will adjourn the Commonwealth’s application for mention at 10.00 am on 16 June 2003 in Melbourne.  I will reserve costs and I will certify for the attendance of counsel and we can take up the story then, Mr Lindsey.

MR LINDSEY:   A true story, your Honour.

HIS HONOUR:   I will make those orders.  I will adjourn until 10.30.

AT 9.57 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 16 JUNE 2003