Little v State of Victoria

[2000] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M81 of 1999

B e t w e e n -

JOHN DAVID LITTLE

Applicant

and

STATE OF VICTORIA

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 26 MAY 2000, AT 3.43 PM

Copyright in the High Court of Australia

MR J. LITTLE appeared in person.

MR N.D. HOPKINS:   If the Court pleases, I appear on behalf of the respondent.  (instructed by the Victorian Government Solicitor)

HAYNE J:   Yes, Mr Little.

MR LITTLE:   May it please the Court, before I commence my address could I just remind the Court that there are allegations touching the Law Institute of Victoria and I understand your Honour Justice Hayne is a former Victorian judge.

HAYNE J:   Yes.

MR LITTLE:   I do not suggest that your Honour should feel embarrassed but in case there is something that would concern your Honour, I simply point this out.

HAYNE J:   Thank you for drawing it to my attention, Mr Little.  There is nothing of which I am conscious that would present any embarrassment to me.

MR LITTLE:   Thank you.  I will attack immediately, sir, the judgment of the Court of Appeal and refer the Court to page 23 of the application book, or more particularly to the very bottom of the preceding page.  In the second‑last line of page 22 the court says:

Judges are sworn to carry out their duties without fear or favour to litigants before them, including the Executive Government.

Then there follows this rather telling seven words:

They must be presumed to act accordingly.

In my submission, that sums up this entire judgment, that judges must be presumed to act without fear or favour.  “Must” be presumed to act without fear or favour and one cannot suggest otherwise.  The suggestion seems to be, and it seems to be played out throughout the judgment, that there is an irrebuttable presumption.  However, and this is a judgment not without its contradictions, its strangenesses, its oddnesses, its improbabilities, to use some of the words in the judgment, the court then proceeds to say:

If they do not do so –

which seems to be a contradiction –

they are liable to be removed from office –

and then there is a reference to the case of Haggard v Pelicier Freres and two other cases decided long back in the 17th century.  The first of those cases, Haggard v Pelicier Freres, has a sentence in it that does, in fact, use the word “duty” and although it is worded in a strange way, it is at the very end of the judgment, it seems to say that there is a duty of care to ensure that justice is administered, that the authorities who would be the ministers of the Crown must carry out. 

The earlier two cases say that where you have a complaint against a judge you must carry it to the King.  Of course, that was in the days prior to the constitutional monarchy being established in 1688.  That, of course, made all the difference.  I would like to adopt by way of quoting a statement from a book that is, I think, fairly well known in legal circles, written by Alpheus Todd called “Parliamentary Government in the British Colonies” where he sets out the three leading maxims of the British Constitution and they are, he says, the personal irresponsibility of the King.  The King can do no wrong, that is how it is normally put.  The second point is the responsibility of his ministers for all acts of the Crown and the third point, the inquisitorial power and ultimate control of Parliament.

So those earlier cases, Hammond v Howell and Floyd v Barker are correct.  In those days you did take your complaint to the Crown but, with the advent of constitutional government, it is the ministers of the Crown who must carry out the Crown duties and to whom blame must be sheeted home if something goes wrong.

HAYNE J:   But legal responsibility or political responsibility?

MR LITTLE:   Legal responsibility, sir, legal responsibility.  Indeed, that was one of the great battles of the 17th century, to establish legal responsibility in the ministers.  There were some famous cases.  I do not want to go into them but that was one of the great conflicts that was fought out and resolved by holding that ministers were personally responsible.  Then, of course, with the advent in recent years, of legislation that permits one to sheet home vicarious liability to, in effect, the Crown, then in a sense the Crown now is also responsible, but that is only because of legislation which has come about in recent years.

Then I want to refer the Court to page 21 of the application book to line 23 where the court says:

It would be strange, to say the least, if the oath taken by the Queen –

that is the Coronation Oath that I refer to.  I take it the Court is familiar with the references in the application book to that.

HAYNE J:   Yes.

MR LITTLE:  

It would be strange, to say the least, if the oath taken by the Queen bound or imposed a duty upon Attorneys‑General in this State; a duty said by the appellant to be one “to guard” the Coronation Oath.

In my submission there is nothing strange about that.  It is what one would expect.  The Coronation Oath sets out that very clear statement that the Crown must see that justice and law are executed in all judgments and that is borne out, I would submit, by what appears in the Act of Settlement where the new legislated principle of judges holding office during good behaviour was established in 1701 and the implication of that is, in my submission, that where judges do not behave then there is a duty on the Crown, now the responsible officers of the Crown, the ministers, to ensure that no misconduct continues by removing or, in some way, acting to stop that misconduct.

At page 22 line 11, starting at line 10:

In our opinion, it is improbable that such a duty of care could exist, not only because it is difficult to discern with any degree of precision what conduct, actual or threatened, of the judges would make the Attorney-General liable to act, but also because it is difficult to envisage what steps the Attorney-General could take to prevent or reverse it.

Then the court goes into various - what I would submit are not really appropriate comments of a basically factual nature like:

Decisions of judges will impact upon litigants in an infinite variety of circumstances.  Harm may well flow to a litigant if a judge has acted without jurisdiction –

and so on.  But when you analyse it what the court is saying is it does not matter how clear a case of corruption may be, there simply is no duty in the Attorney-General to take any action.

The other arm of that statement is that it is difficult to envisage what steps the Attorney-General could take.  Now, where is the difficulty in that?  What I would submit is that in an extreme case he would advise the Crown to suspend the judge’s commission and if the judge or the judges could not then rebut the charge or the evidence of corruption, then they would simply be dismissed. 

Your Honours, it is rather like the cricketers.  You do not necessarily put a life ban on a cricketer because he made a bet with some bookmakers.  You give him a chance in a fairly mild case so that in a less extreme case, I would submit, the proper course for an Attorney-General would be, as I suggest here, to give the judges concerned an opportunity to, themselves, correct their improper decision by the Attorney-General approaching them in open court.  If the judges then persisted in a corrupt course of conduct, in my submission, the Attorney-General would then be bound to dismiss them.

So these difficulties and oddities and improbabilities that are referred to in the judgment do not, in my submission, really exist and they really are explained away by the attitude of the Full Court of the Court of Appeal that there is an irrebuttable presumption that, just as in the past, the King can do no wrong, now the judges can do no wrong.

On page 24 of the appeal book one comes to a very interesting, in my submission, confusion.  The court has been discussing the Maharaj Case, Maharaj v Attorney-General of Trinidad & Tobago, which is a case touching a republic where the State had replaced the Crown and it seems to me that the court has, just as that State became a republic, it seems to have assumed that Australia, or at least Victoria, has somehow become a republic a little ahead of time.  At line 6 the court says:

But even if the Coronation Oath enshrines rights and freedoms of the type which the appellant alleges, they are owed as public obligations by the State, and not by particular ministers.

It is a capital “S” there, a capital “S”.  There is no state, as I understand it, in a constitutional democracy.  There is the Crown.  There are ministers of the Crown but there is no such thing as a state.  That is what you have when you go republic, when you do away with the Crown as the head of State.  So they go on:

There is nothing to be found in the decision of the Privy Council which shows or tends to show that the type of relief which was held to exist under the written Constitution in respect of judicial conduct was previously available by virtue of the Coronation Oath.

Well, of course, that follows because there was no need to do that.  They go on:

Furthermore, the redress held to be available was in respect of the Judge’s conduct, not the Attorney-General’s conduct.  As we read them, the words of the oath are of such width that it seems to us they could only import obligations, carrying corresponding rights, if the State were to create such obligations and rights in a specific enactment –

Now here we have a case of shifting sands or the water and the wine in the bottle being changed.  Previously, on line 7 when the court referred to the State, it seemed to be referring to some corporate entity that was separate from the Crown or the ministers of the State but here at line 16 the court seems to be referring to Parliament.  They say here:

if the State –

let us assume they mean the Parliament here, if the Parliament –

were to create such obligations and rights in a specific enactment –

Well, that is precisely what the Parliament did.  It is what the British Parliament did in 1688.  They set out very clearly what those rights were in one of the most, one could say, sacred documents that you could possibly have.  They established for the first time a legislative oath for the monarchy that the monarch is required to swear to.  It has all sorts of deep, symbolic and religious significance.  In my submission it is just as powerful a concept, an instrument as, say, the American Constitution.  It is the foundation document for constitutional monarchy as we know it.  So to say, as the court does here, or suggests there is no specific enactment is, to put it mildly, very, very unfair and very wrong.

Then going on to page 25 at line 18 there is a quote – I do not really understand the relevance – there is quote from Gouriet v Union of Post Office Workers where it is said:

And just as the Attorney-General has in general no power to interfere with the assertion of private rights, so in general no private person has the right –

and so on.  I am not asking for the Attorney-General to interfere in the assertion of public rights.  All I am asking for is a level playing field.  At page 26 at line 12 it is suggested that:

This interference –

as it is called –

in the function of the courts –

and I am reading from line 10 now –

denying any effective separation between the roles of the executive and the judiciary, would presumably require the Attorney-General to receive and monitor complaints about the actions of judges while the litigation in question was still extant and, in the interests of natural justice, conduct an inquiry into the complaint, running parallel with the litigation itself, before embarking on the suggested intervention.

That is not a fair statement of what I am suggesting and in the Maharaj Case the Privy Council made this point.  It is not in your run of the mill case that the problem arises.  It is only the exceptional case where there has been virtually a total breakdown, as there was in this case, where you had a Chief Justice through an executive function dragged into a situation where he ultimately, willingly, in my submission, brought about a lack of impartiality in his entire court.  That was the provision in the – I see my time is up.

HAYNE J:   Yes, thank you, Mr Little.  We need not trouble you, Mr Hopkins.

           The decision of the Court of Appeal, in our opinion, is not attended by doubt.  Special leave will be refused.

MR HOPKINS:   I seek costs, your Honour.

HAYNE J:   Can you resist that, Mr Little?

MR LITTLE:   I do not wish to say anything on the question of costs.

HAYNE J:   Leave is refused with costs.

Adjourn the Court until Tuesday, 13 June, in Canberra

AT 4.05 PM THE MATTER WAS CONCLUDED