Link v NSW Minister for Primary Industries & Ors

[2008] HCATrans 307

[2008] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S96 of 2008

B e t w e e n -

SIEGFRIED LINK

Applicant

and

NSW MINISTER FOR PRIMARY INDUSTRIES

First Respondent

DIRECTOR‑GENERAL, NSW DEPARTMENT OF PRIMARY INDUSTRIES

Second Respondent

DEPUTY DIRECTOR‑GENERAL, AGRICULTURE AND FISHERIES, NSW DEPARTMENT OF PRIMARY INDUSTRIES

Third Respondent

DIRECTOR, WILD HARVEST FISHERIES, NSW DEPARTMENT OF PRIMARY INDUSTRIES

Fourth Respondent

Application for removal

GUMMOW J
KIRBY J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 AUGUST 2008, AT 9.31 AM

Copyright in the High Court of Australia

__________________

MR J. CHOY:   If the Court pleases, I appear as agent for the solicitor for the applicant.  (instructed by Waters Timms, Solicitors)

GUMMOW J:   We had thought we were getting Mr Fitzgibbon, but that is not so?

MR CHOY:   Mr Fitzgibbon has not received a brief as of yet and I am appearing on behalf of the applicant, your Honour.

GUMMOW J:   Thank you. 

MR M.G. SEXTON, SC:   If the Court pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the first, second and fourth respondents and for the Attorney General who intervenes in the proceedings.  (instructed by Crown Solicitor for New South Wales)

GUMMOW J:   We have had a communication indicating that the third respondent, who is identified as the Deputy Director General Agriculture and Fisheries, et cetera, is an office that does not exist.

MR SEXTON:   Any longer, your Honour.

GUMMOW J:   Any longer.  It did exist, I think, at the time you put on your motion in the Federal Court.  All right.  I think we will hear first from you, Mr Solicitor.

MR SEXTON:   Your Honours, we have set out in our written submissions why we think that the constitutional issues can never be made out in this case, but in any event we would say that they could certainly be determined by the Federal Court in the first instance and that there is no reason why the matter should be removed at this stage into this Court.

KIRBY J:   The problem we face is that the matter is not without some complexity and your tactic in the Federal Court was to knock the matter out and to seek pre‑emptory dismissal so that you come up to us and say leave this to the Federal Court and then in the Federal Court you say dismiss it, so that we do not really get a chance to see the matter unfolded or manifestly dealt with in a lawful and just way.  Would you be persisting in the Federal Court with the application for summary dismissal?  Justice Branson stood that over once the removal application was made.

MR SEXTON:   I assume so, your Honour, but if that does turn out to occur in the Federal Court, then we would say, by definition, it is a matter that probably would never have got to this Court in any event.

GUMMOW J:   A point is really that if there is a point here about the State Title Act, at the moment it is not properly pleaded – well, there is no pleading.  There is just an application.

MR SEXTON:   Yes.

GUMMOW J:   The concern is that there may be a point which if the procedure we have in proper form was susceptible for decision by the Federal Court rather than by pre‑emptory dismissal.  Do you see what I mean?  The State Title Act is at the bottom of it, is it not, in one way of looking at it?

MR SEXTON:   In part, your Honour, although we would say that really the constitutional issues on the face of it would probably never be successful.

GUMMOW J:   Section 4 of the State Title Act, by force of the Act, gave to the States some right and title, it was said, in the property of the sea bed as the States would have if the relevant sea bed were beneath the waters of the sea within the limits of the State.  That was the idea, was it not?

MR SEXTON:   Yes, your Honour, but separate from the question of title here, there is the question of legislative power which we would say, because of the arrangement that has been entered into here, that there could not be much doubt about that.

GUMMOW J:   Yes, but I think your opponents may be upset by section 123 of the Constitution. That has always been in the background, has it not? There was no question put to the majority of electors of the State to, it might be said, alter the limits of the State and make provision respecting increase in the territory of the State. There is an argument there in the background, is there not?

MR SEXTON:   There is, your Honour, but although largely we would say these matters were dealt with in Port MacDonnell and dealt with in a way that established the ‑ ‑ ‑

GUMMOW J:   No, not the Title Act. Section 123 was not dealt with.

MR SEXTON:   No, that is right, but one just looks at the question of legislative power, your Honour.

GUMMOW J:   Yes, but legislative power is subject to 123, is it not?

KIRBY J:   I think Justice Gummow has said enough to indicate that we – certainly I do not think that the matter is really suitable for summary dismissal, that it really has to be dealt with by laying out the provisions and meeting the contentions being placed before the Federal Court, or sought to be placed before the Federal Court, by the applicant.  What troubles me is the thought that you might go back there and seek summary dismissal and then the whole issue goes away, whereas if we keep it under our hands, it will not.

MR SEXTON:   Those issues will have to be canvassed in the Federal Court, your Honour, before you could have any summary dismissal.

GUMMOW J:   All right.  At the moment you have got a strikeout application in the Federal Court which has been stood over.  We will see what Mr Choy says.  Mr Choy, you have heard what has been said – you had better come to the middle I think.

MR CHOY:   Thank you, your Honour.  The applicant would say that are serious problems to be resolved and have not been resolved either by the legislation in that the legislation is unclear ‑ ‑ ‑

GUMMOW J:   As I understand it, your client wants to achieve a situation whereby the State laws, as it were, are rolled back and this is exclusively federal legislative domain and he deals only with federal authorities.

MR CHOY:   That is correct, your Honour. That is the gist of the argument of the applicant. The applicant says that the legislation as it stands is unclear, that the cases that have been argued have not been argued on this particular point in law and need to be clarified to enable the fishing industry as a whole to be properly managed and, according to the Constitution under 51(x), that province lies with the Commonwealth and should remain with the Commonwealth and not be in the province of the States.

GUMMOW J:   You may ultimately have something in there of importance, but at the moment the amended application, to be frank, is not good enough to clearly articulate that.  You need to give some thought to having counsel review the matter and proposing a statement of claim in proper form that would clearly put these issues forward and you need to be prepared to put that to the Federal Court in resistance to the strikeout application which is now being made against you.  But we would not, as it stands at the moment, remove it into this Court because we would be taking up something which was in flux, if you see what I mean.

KIRBY J:   But as well, we would not have the advantage of the analysis by the Federal Court of the substantial issue that you wish to argue and that is a great advantage of having the matter come through either a State supreme court or the Federal Court of Australia.  So I would support what Justice Gummow says, it is not ripe for removal, it is not necessary for removal and, indeed, it is better that it be dealt with first in an intermediate court and then come to this Court if there is then still a matter to be dealt with.

MR CHOY:   I do understand the arguments that your Justices have presented.

GUMMOW J:   We are not presenting arguments.

MR CHOY:   Your suggestion and recommendation.  I find myself in a difficulty here, your Honours, in that I appear as agent and ‑ ‑ ‑

GUMMOW J:   No, we understand your position.

MR CHOY:   I do not have full carriage of the matter, but I do believe that ‑ ‑ ‑

KIRBY J:   If your client is for the fishing industry and if the fishing industry wants to raise a very important constitutional matter, I am afraid it just has to be done with high professional skill.  There is no getting away from it and you cannot look to the Judges to solve the inadequacies of the pleading and the argument.  It just has to be done properly, I am afraid, and they have to all kick the can.  That is the bottom line, and if they do not, we just cannot, we do not have the time and it is not our proper job to fix it all

up and deal with it ourselves.  It has to be done by properly prepared pleadings and proper representation from the Bar table.

MR CHOY:   I accept what your Honours say and I might take the opportunity to candidly agree with you.

GUMMOW J:   All right.  Is there anything else you wish to say to us now on the application for removal?

MR CHOY:   As part of the application for removal, I have no further submissions to make.

GUMMOW J:   Yes, thank you, Mr Choy.

MR CHOY:   Thank you.

GUMMOW J:   What is the position with costs of the application for removal?

MR SEXTON:   We would seek the costs of today if the application is refused, your Honour.

GUMMOW J:   Yes, very well.

For the reasons which have sufficiently emerged, I think, in exchange between the Bench and the legal representatives here this morning, this is not an appropriate case for removal.  The application for removal filed on 19 March 2008 is dismissed.  The costs of the application must be paid by the applicant.

MR SEXTON:   If the Court pleases.

AT 9.42 AM THE MATTER WAS CONCLUDED