Mayor, Councillors and Citizens of the City of Collingwood v State of Victoria and Anor

[1994] HCATrans 252

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M144 of 1993

B e t w e e n -

THE MAYOR, COUNCILLORS AND

CITIZENS OF THE CITY OF

COLLINGWOOD

Applicant

and

STATE OF VICTORIA AND

COLLINGWOOD FOOTBALL CLUB LTD

Respondents

Application for special leave

to appeal

MASON CJ

TOOHEY J

Collingwood 1 11/3/94

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 1994, AT 9.36 AM

Copyright in the High Court of Australia

MR A.H. GOLDBERG, QC: If the Court pleases, I appear with

my learned friend, MR S.K. WILSON, OC, ror the

applicant. (instructed by Price Brent)

MR D. GRAHAM, QC, Solicitor-General for Victoria: May it

please the Court, I appear with my learned friend,

MS M. SLOSS, for the first respondent. (instructed

by the Victorian Government Solicitor)

MASON CJ:  The Deputy Registrar has certified that she has

received a letter, dated 16 February, from the
solicitors for the second-named respondent advising
that the second-named respondent does not wish
representations to be made on its behalf at the

hearing and will abide by any determination of the

Court.

MR GOLDBERG: If the Court pleases.

MASON CJ: Yes, Mr Goldberg.

MR GOLDBERG:  Your Honours, the key to the matter which is

before the Court can be found on page 80 of the

application book when you look at the section 85

statement that was specified by the

Attorney-General at the second reading speech. And

what she said was this - and this was extracted in

the judgment of the Full Court:

"The reason the Bill limits the jurisdiction

of the Supreme Court is to remove any

possibility that the agreements previously

reached between the council and the club might

be upset by a judicial decision. In the Act
proposed by this Bill, the Parliament of

Victoria will have made a policy decision that the agreements concerned are in the public

interest to have the force of law. This is

not to be subject to any form of judicial

review.

We submit, Your Honours, that that policy was

carried through into the statute. If Your Honours

look at the statute, the Victoria Park Land Act,

which is extracted at page 61 of the application

book, Your Honours will see in the preamble in the

third line, that:

The Council and the Club completed

negotiations for the sale and leasing of the

land which included -

improvements.

Collingwood 2 11/3/94

The Council has not proceeded with the sale to the Club of part of Victoria Park and, because

of this, arrangements ..... cannot b€

implemented.

And then it is:

In the public interest and in the interest of

effective land management it is desirable to

provide, by force of this Act, for the

implementation of those arrangements -

Your Honours then find, in section 1 of the

Act, the purpose. The first purpose is:

to provide, by force of this Act, for the

implementation of arrangements -

and might I remind the Court that at the time the

bill became an Act there was pending before the

Supreme Court of Victoria an action by the Council

seeking a declaration that it had not entered into

any binding or enforceable agreements with the

Collingwood Football Club and that it was not bound

to sell some land to the Club and to grant a lease

of other land to the Club.

So, we find the purpose of the Act is to

implement that arrangement but, more importantly

and significantly, in terms of our submission that

this Act interferes with the judicial process - - -

MASON CJ: But it does not do that. All it does is to alter

the substantive rights of the parties.

MR GOLDBERG: With respect, no, Your Honour, it is

directive, and might I indicate why I submit that?

Go to section l(b), Your Honour. It is "to give

legal effect to those arrangements". The use of

the words, Your Honour, "to give legal effect" is

saying to the Court, "Like it or not, if this

matter comes before you, this is enforceable."

McHUGH J: Supposing the action in the supreme court had

proceeded and your client had got a declaration in

its favour. Would there be anything to stop the

Victorian Government enacting this legislation?

MR GOLDBERG: After the declaration, Your Honour?

MCHUGH J: Yes.

MR GOLDBERG:  Your Honour, once the declaration had been

made and the judicial process had been exhausted,

then it is possible, because of the plenary powers

of the Parliament, to say something about it and to

pass a statute. But what it has done,

Collingwood 3 11/3/94

Your Honour - and the significance of our

application is this, there is an action pending

before the court. You see, Your Honours, it is the

use of the words "to give legal effect to" because

it is a direction to the court, the supreme court

that has this matter before it.

If, the day after the statute had been passed, the matter had come on for trial, my learned friend

would have stood up and said to the judge, "You

have to give legal effect to this, notwithstanding

your construction of those documents, because this

statute tells you so."

McHUGH J:  That is the law of the land. Why can the

Victorian Parliament not announce - - -

MR GOLDBERG:  Because we submit, Your Honour, there is two

is
aspects to it: one, there a separation of the Constitution Act which does not allow a statute
powers doctrine embedded in the Victorian

to detract from the jurisdiction of the supreme

court except in certain circumstances.	The law of
the land, Your Honour -

McHUGH J: This does not detract from the jurisdiction of

the supreme court.

MR GOLDBERG:  Your Honour, go to section 6(1)(b), for

example, which refers to the deposited documents,
and Your Honours will appreciate the deposited
documents are the documents, in section 4 of the

Act, which embody what I will call loosely, the

contractual documents reached between the parties,

there were heads of agreement. The Council says

they are not binding, they are subject to; and the

Club says they are binding. Section 6(l)(b) says - and perhaps I should deal with (l)(a) first:

By force of this Act ..... the deposited

documents - (a) replace and supersede any agreements -

that, perhaps, is debatable about whether it is

directive or relates to substantive rights. But we

submit that section 6(l)(b) puts the seal on it:

(b) have effect as binding and enforceable

agreements -

In other words, the court it being told, "This is

to have effect. You might think it is not to have

effect. You might think the construction of the

documents is this was subject to preparation and

execution of a formal document. This tells you it

Collingwood 11/3/94

is to have effect."	And that, we submit, is
directive.

MASON CJ:  But you tell me that if there is a statutory

provision that says, "An agr~ement between the

Government of Victoria and Xis a binding

agreement and is to have legal effect ·as a binding

agreement.", that that is a direction to the court

that in some way reduces the jurisdiction of the

court?

MR GOLDBERG: 

Yes, Your Honour, because there is a matter before the court already and that is - - -

MASON CJ: 

No, but put aside the fact there is a matter

before the court. Let us assume it is done before
the institution of proceedings and you have
provisions of this kind, and you say that ousts the

jurisdiction of the court?

MR GOLDBERG: 

Not at that stage, no.

MASON CJ: It does not. It is only because there are

pending proceedings.

MR GOLDBERG:  And it is then that it becomes an intrusion,

Your Honour.

McHUGH J:  But it does not tell the court how to carry out

its task. It declares what the rights of parties

are and then the court can use its own processes to
give effect to those rights, having regard to the

legislation enacted by the Victorian Parliament.

MR GOLDBERG:  Your Honour, when you use the words, "it

declares the rights of the parties", that is a

characterization of what Your Honour sees the

statute does. My submission is that when you look

at it and the words "have effect" are - and where

you have before the court this very issue, when the

court is confronted with a document, one side says

not binding, and the other side says binding, the	side that says binding says simply, "Look, it has
effect. You can't do anything about it".

McHUGH J: What would you say if section 6(l)(b) said,

"The deposited documents shall constitute binding

and enforceable agreements between the Council and

the Club."?

MR GOLDBERG:  By force of this Act, in effect, Your Honour?

McHUGH J: Yes, by force of this Act, leaving out the words

"have effect as", what would your argument be then?

MR GOLDBERG:  It would be more difficult because that is not

as directive as this statute is. But, Your Honour,

Collingwood 11/3/94

it is not simply a matter of words. We cannot look

at this statute, Your Honour, otherwise than in the

context of the pending action, and that is the very

point.

TOOHEY J: But the court has to take the law as it finds it,

Mr Goldberg.

MR GOLDBERG: Absolutely, Your Honour.

TOOHEY J: And what it is today may not be what it is

tomorrow.

MR GOLDBERG:  Yes, Your Honour, but if the law of the land

today is, and assume for the purpose of my

argument - and this is an issue, I appreciate, that

observed properly in this particular case - the law of the land is that the judicial process must not

there is a separation of powers doctrine in the

be interfered with by Parliament and you must not

have a legislative judgment.

This is what happened in the case of Liyanage

that has been referred to, the case that came out

of Ceylon, Your Honours may recall, where there was

a direction to the court as to admissibility of

evidence and how these three people were going to

be tried. There are other cases where

Your Honours, in this Court, have held that it is

not directive, it affects substantive rights, and

cases such as the Nelungaloo case, with the wheat

stabilization -

MASON CJ: 

The Builders' Labourers case, there is a line of

cases in this Court and in relation to pending
litigation in the court.

MR GOLDBERG: 

Yes, Your Honour, and in each of those cases

what this Court and other cases have done has

looked at the legislation and asked the question as

Mr Justice Brooking did in the Full Court, "Does

this statute simply affect substantive rights or is

it a direction to the court?"

Your Honours will recall in the ELF case in

the New South Wales Court of Appeal it was held

there that in some aspects of those sections were

directive to the court, particularly in a judgment

of the Chief Justice Sir Laurence Street. If I
could just identify that passage for Your Honours.

It is reported in 7 NSWLR 372. If Your Honours

look at page 377 of that judgment, Your Honours

will see section 3(1), 3(2) and 3(4).

Section 3(1), which is on page 377 between letters

D and E - and I will paraphrase it:

Collingwood 6 11/3/94

The registration ..... shall, for all purposes,

be taken to have been cancelled -

those are the words. Subsection (2):

the action of the Minister ..... shall ..... be

treated, for all purposes, as having been

valid -

and then subsection (4) dealt with costs.

What Sir Laurence Street did, on page 378,

Your Honours will see at letter B, three lines

below the letter:

The provisions of s 3(1) ands 3(2)

appear to me to be cast in terms that amount
to commands to this Court as to the conclusion

that it is to reach in the issues about to be

argued before it.

Now, why did he reach that conclusion,

Your Honours, I ask rhetorically, and I answer it

this way: because, when you look at the words,

"the registration shall for all purposes be taken";

"the action of the Minister shall for all purposes

be taken as having been valid".

Now, when we look at the words that we have in

this section, "have effect as", you reach the same

conclusion. It could have been done, Your Honours,

a different way but it has not been done a

different way. It has been done in the context of

a direction to the court. If you have any doubt

about that, Your Honours, that is why we went to

the second reading speech because we submit that

supports our argument. What the government of the

day wanted to do in this case was to ensure that

"the Supreme Court of Victoria", which has
jurisdiction in all cases whatsoever under the

Constitution of Victoria, "shall not have

jurisdiction in this matter." It deprived the

supreme court of the jurisdiction.

Your Honours, the dichotomy between affecting

substantive rights and a direction to the court, in

a sense, is a matter of degree and it is a matter

of terminology but, at the end of the day, we
cannot shrink from the proposition that it is what

the government intended to do and the question the

courts, on the basis of our application, have to

answer is, "Did the government succeed, and if so,

how did it succeed?" It succeeded by directing a

court, "This has effect" and those are the words we

seize upon, Your Honours.

Collingwood 11/3/94

Your Honours, on that basis, we submit this is

.an intrusion into the judicial process. The cases

make ir. clear, Your Honours, that if there is a

direction to the court then, Your Honours, it is an

intrusion into the judicial process and will be

held to be ineffective.

That leaves me to my anterior proposition

which is this, that the separation of powers

doctrine is incorporated in the Victorian

Constitution. Now, Your Honours, we could not have

argued that proposition before 1975 but in 1975

there was a consolidation of the statute and what

happened was the provisions of the Supreme Court

Act that dealt with the supreme court were lifted into the Constitution Act.

Again, if there be any doubt about that, if I

can take Your Honours to page 86 of the application
book where the minister in the second reading

speech introduced the Constitution Bill,

Your Honours will see at line 53 in the first

column:

This Bill brings into the Constitution of
Victoria certain provisions from the Supreme
Court Act which will give the creation and
position of the Supreme Court and the tenure
of its judges constitutional status as part of

the essential legal framework of the State.

Now, what then happened, Your Honours, was, if

Your Honours look at the section of the

Constitution Act, the relevant section is in the

judgment, and it is page 7, line 25:

Subject to this Act the Court shall have

jurisdiction in or in relation to

Victoria ..... in all cases whatsoever -

Your Honours, one of the issues before the supreme

court was whether the judicial power of the State

was vested in the Supreme Court-of Victoria or
whether, because of the fact other courts could be

given judicial power, that meant that the doctrine

of separation of powers could not apply.

If Your Honours look at subsection (8) of that section, because this was used by the Full Court to

show that there was not judicial power, as it were,

vested on a separation of ?Owers basis, in the

supreme court. At the top of page 9, it said:

A provision of an Act that confers

jurisdiction on a court -

and I will paraphrase it -

Collingwood 8 11/3/94

which would otherwise be exercisable by the

Supreme Court, or ~hich augments any such

jurisdiction ..... does not exclude the

jurisdiction of the Supreme Court except as

provided in sub-section (5).

Now, what that recognized is that we had here, what

in the words of some of the cases is being called a

controlled constitution, that is, controlled as

against uncontrolled; controlled in the sense that

if you are going to change the jurisdiction of a

court or a particular body, in other words, change the constitution, you have got to go about it in a

particular way.	You cannot just do it by passing a
statute.

The situation then here is that although you

can give power to other courts to exercise judicial
power, at the end of the day it does not exclude
the jurisdiction of the supreme court. In other
words, Your Honours, subject to the controlling
provision, the Supreme Court of Victoria, in this

State, is the superior court and the other courts

and tribunals in the State are answerable to it.

TOOHEY J: But what do you mean by "jurisdiction" in this

context, Mr Goldberg?

MR GOLDBERG:  It is a power to resolve disputes between

litigants, Your Honour, whether they be government

and individual or individual and individual.

TOOHEY J: Ordinary, it is understood as to the capacity of

the court to deal with the particular

subject-matter that is before it.

MR GOLDBERG:  Yes, all cases whatsoever, Your Honour. You

cannot have a more plenary grant of power.

TOOHEY J: But how is jurisdiction, in the sense in which

you have expressed it, affected by this

legislation? The law according to which the

dispute is to be determined may have shifted but

how is the jurisdiction of the court affected?

MR GOLDBERG:  The jurisdiction is affected, Your Honour,

because if the statute had not been passed the

action between the Council and the Club would have

come to court: the Council would have said, "not

binding"; the Club would have said, "binding", and

the court would have reached a decision. Now the

jurisdiction of the court to determine that is taken away because its ability to rule on that

issue has been determined. It can no longer do it.

It is told this agreement - the deposited documents

shall have legal effect, and that is the

difficulty, Your Honour.

Collingwood 9 11/3/94

Your Honours, it is a very serious matter, we -,,qould snbmit, when something is taken away from the

court. Of cou~se substantive rights can be

affected, and ~he cases are very clear upon that.

We do not dispute that proposition. We say, on a

fair reading of the statute, taken in context with

the second reading speech, you reach the conclusion

that this matter - if I can use a slightly

different word to try and encompass the issue - is

taken away from the court, and that was the express

intention of Parliament.

Now, the Full Court said there is no

separation of powers doctrine in this State but the

whole structure of the Act, Your Honours, as we

indicate in our outline of argument, is to give

provisions for Parliament, for the executive and the judiciary. Of course, so far as the special

leave point is concerned, I cannot use this

argument in relation to other constitutions of

other States because they do not have the
provisions - what I will call the entrenched

provisions - for the jurisdiction of the supreme

court as we do in the Victorian Constitution.

Nevertheless, Your Honours, any matter which involves the government of the day, the Parliament

saying to a court, "Although you have jurisdiction

in all cases whatsoever, we're going to exclude

this", we say that is a very significant matter and

one that should not be allowed to happen unless the

highest Court in the land has dealt with it. That

is why we submit for this Court it is an important

matter so far as special leave is concerned.

So far as the reasons of the Full Court are
concerned, the separation of powers doctrine, we

submit, is there because of the structure of the

Act. We have identified that in our argument. So

far as the section 85 point is concerned, our point

in relation to that is that what

Mr Justice Brooking did was, having resolved the

issue that there was no separation of powers

doctrine, he used the directive/substantive rights

argument to determine whether or not section 85

applied or not.	we submit that that was an error
because that was the wrong test to apply.	The test

that should have been applied was, in effect, to

say, "Does this legislation, in effect, detract

from or diminish the jurisdiction of the court?"

That is having regard to the words which section 85

of the Act use which is on page 8, Your Honours, at

line 9:

A provision of an Act ..... is not to be taken

to repeal, alter or vary -

If the Court pleases.

Collingwood 10 11/3/94

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MASON CJ:  Thank you, Mr .. Goldberg. The Court need not

trouble you, Mr Solicitor.

MR GRAHAM: If the Court pleases.

MASON CJ:	On the assumption that the Constitution Act of Victoria incorporates a separation of powers, we are not persuaded that the Victoria Park Land Act
1992 infringes that separation of powers or that
the Act seeks to amend section 85 of the
Constitution Act.  The application for special
leave is therefore refused.
MR GRAHAM:	If the Court pleases, I ask for an order for

costs in favour of the first respondent.

MASON CJ:	You do not oppose that, Mr Goldberg?
MR GOLDBERG:	I have nothing to say, Your Honours.
MASON CJ:	The application is refused with costs.

AT 9.57 AM THE MATTER WAS ADJOURNED SINE DIE

Collingwood 11 11/3/94