Miller and Ors v Chapman and Ors

[2002] HCATrans 30

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M100 of 2001

B e t w e e n -

LANCE STEWART MILLER
ROBYN DIANE CONINGHAM
IAN SIDNEY HENKE

Applicants

and

STEPHEN CHAPMAN

First Respondent

MICHAEL JOSEPH CARMODY

Second Respondent

BRUCE CARTER

Third Respondent

Application for leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 FEBRUARY 2002, AT 10.56 AM

Copyright in the High Court of Australia

__________________

MR D.C. FITZGIBBON:   If the Court pleases, I appear for the applicant.  (instructed by Noel Waters Pty Ltd)

MS J.J. BATROUNEY, SC:   If the Court pleases, I appear with MS G.L. EBBECK for the first and second respondents.  (instructed by Australian Government Solicitor)

MR P.A. WALKER:   If it please the Court, I appear for the third respondent.  (instructed by Finlaysons, Lawyers)

GLEESON CJ:   Yes, Mr Fitzgibbon.

MR FITZGIBBON:   Yes, thank you, your Honour.  I appear for the applicant on the leave application, but as I understand it, to be heard with that, of course, is the strike‑out application if I understand it correctly.

GLEESON CJ:   You go ahead with your leave application.  You are seeking special leave to appeal against the decision in proceedings M31 of 2001.

MR FITZGIBBON:   Yes, thank you, your Honour.

GLEESON CJ:   Is that right?

MR FITZGIBBON:   Yes, that is correct, your Honour.

GLEESON CJ:   Could you just move in front of the microphone?

MR FITZGIBBON:   I am sorry.

GLEESON CJ:   But we do not have before us any application in relation to proceedings M17 of 2001?

MR FITZGIBBON:   No, that is correct.

GLEESON CJ:   Right.  So, we are not concerned with the decision that is recorded on page 25 of the application book?

MR FITZGIBBON:   No, I believe that to be correct, your Honour.  Yes.

GLEESON CJ:   Now, just before you commence your argument on your application for special leave to appeal, I will ask Ms Batrouney what she wants to say in relation to the other application.

MS BATROUNEY:   If your Honour pleases, the first and second respondents, and I understand the third respondents, would prefer to have the matter dealt with today as a hearing rather than as a strike out, so we do not pursue our strike‑out application.

GLEESON CJ:   Thank you.  Yes, Mr Fitzgibbon.  Go ahead with your application.

MR FITZGIBBON:   Yes, thank you, your Honour.  Your Honour, I had prepared on the basis of the possibility there be both matters heard.  So, in essence, I caused a short set of submissions to be prepared last night because the matter seemed to cross over as between the two.  Now, if I might have the Court’s leave to, in fact, tender the submissions I have made because I believe they will assist the Court.

GLEESON CJ:   Very well.  Thank you.  Yes, go ahead.

MR FITZGIBBON:   Yes, thank you.  Your Honour, can I commence from this position that there are two, I say, major premises which are against us as applicants.  The first submission which appears, indeed, right throughout the appeal book itself, is a submission, what I will call the untenable argument, and that, in effect, is found right throughout the appeal volume itself and although I accept that M17, your Honour, is not part of the appeal, it, nevertheless, is part of the history of the matter and, indeed, I think it is first mentioned in submissions at page 15 of the appeal book.

I do not need, I believe, to take your Honours to that because of the limited time one has on an application for leave but, indeed, it flows through, I believe, each and every judgment and I think the final matter is a reference on page 228 in the submissions.  I can direct your Honours, if you wish, to the various places where that argument appears.  It appears at page 15, page 40, page 104, page 130, page 147, pages 169 and 228 and I hope I have not missed any out but, in effect, that argument is the argument by my opponents.

Now, I believe it is important, your Honour, to just give consideration for a moment to whether that, in fact, is the case and, indeed, prior to this we never have had the benefit of a Full Court as such, and his Honour Justice Callinan, of course - I have appeared in front of him on a number of occasions - but what I am saying is I believe it is important for this reason, that we say as applicants the case is both more than arguable and, indeed, the case is right, because if one takes, your Honour - and I have attached, I believe, the, perhaps, most cogent record and that, of course, is the introduction in 1953 by Sir Robert Menzies to the Parliament of Australia and, of course, Dr Evatt is the Leader of the Opposition at that time and it is important to realise - your Honours will know this far better than I, but if one looks at the role of Sir Robert Menzies, both as an eminent counsel and Dr Evatt, of course, who was both a Justice of this Court and then served in the administration during the war as Attorney-General and Minister for Foreign Affairs and he, of course, played the part, your Honours, in the 1948 aliens and immigration Acts which were passed concurrently round all of the dominions and, indeed, of course, were a legislation here.

In between he fitted in as the first leader of the United Nations and then, from that step, your Honour, if one looks at the Hansard record, it is, indeed, I believe, of very, very great importance.  I have drawn your Honours’ attention to page 55 and, indeed, to page 57, but on 55 the Prime Minister had this to say, and I believe it to be on the second column, it is of importance because he is referring here as to why the Queen of the United Kingdom should be a part of this whole system.  He says, at about point 5 on the second column:

Why refer to the United Kingdom first?”  I should like to answer that, because I confess I have the strongest possible views on it.  In the first place I think that, juristically speaking, it would be fantastic to eliminate a reference to the United Kingdom, because the plain truth is that Her Majesty Queen Elizabeth the Second sits on the throne not because of some law of Australia but because of the law of the United Kingdom.  She sits there by virtue of two acts of parliament.  The first is the Act of Settlement of 1701; the second is the Abdication Act, which signalized the departure of Edward VIII. from the throne and the installation of His late Majesty King George VI. in 1936.  Therefore, in the literal, legal sense the Queen is Queen of Canada and of South Africa and of New Zealand, and so on, because she is Queen of the United Kingdom . . . We have never assumed –

and this, in my submission, very important –

We have no act of succession.  We have never assumed to make an Act of Succession.  I hope we never shall.  We have a perfect right to do so, but I hope the day never comes‑

Now, all of that material, your Honour, is both very important, in my submission, but it is doubly so because if one turns to page 57 then one finds this.  Dr Evatt, of course, is member for Barton, Leader of the Opposition, and at page 57, approximately point 3:

The Prime Minister was quite correct in pointing out that, so far as Australia is concerned, in both constitutional practice and constitutional law in the strict sense, the succession is determined by the succession to the Throne of the United Kingdom.  That was illustrated by what took place on the abdication of Edward VIII.  But the more important point is that the Statute of Westminster does contain a declaration that any alteration of the royal style and titles should be assented to not by the governments of Commonwealth countries, but by the parliaments of those countries, and that is why parliamentary assent to this measure is required.  The Government is quite correct in submitting this measure for approval at the first available opportunity.  I also believe that when the prerogative instrument to which the Prime Minister has referred is issued, it should be issued, as I have no doubt it will be, on the advice of the Prime Minister of the Commonwealth of Australia.

Now, this is the untenable argument, your Honour.  This is repeated time and time again that says, “No foundation on this, nothing at all”.  Well, the fact is we have never, in fact, passed an act of succession.

Now, the difficulty, I submit, is this. If that is the case then, indeed, this is a matter that ought to be considered by the High Court because what we are dealing with is under our Constitution, which I do not think anyone would doubt is, of course, still a current Act of the British Parliament. Indeed, of course, it was passed – No 60, I think, of 1900 ‑ and I believe there is extant authority which accepts that it is still a current Act of the British Parliament.

Then what the applicants say is that the Queen of the United Kingdom, who is not a separate entity as the respondents must base their case on, but, indeed, she is, in fact, the Queen of the United Kingdom, then that requires that any commissions or any other matters like that be made under the Great Seal of the United Kingdom and, indeed, any appointment of that nature must be made under that system because, as I say, we are dealing with an Act, a current Act of the United Kingdom.

Now, it is not a case, the applicants say, where Parliament is able to just do a simple amendment to the legislation because, indeed, under the United Kingdom law ‑ and I believe I state this proposition correctly ‑ then, in fact, the courts have no power to amend the law as it stands.  That remains, of course, the prerogative of Parliament.

GLEESON CJ:   Could you state in a summary form the point that you take from this of relevance to the decision of Justice Hayne?

MR FITZGIBBON:   Yes.  If I take your Honour to Justice Hayne’s decision, perhaps best expressed, at page 147, your Honour, of the appeal book.  At line 20 his Honour deals, first of all, with the Corporations Law, and I will come back to that, but his Honour says this, and this is something that he has said on other occasions:

Further, it would seem to me that the complaint about want of judicial authority is also without foundation. The Constitutions of the States, in accordance with which judicial appointments are made, were continued by operation of section 106 of the Commonwealth Constitution and the complaints now made seek to challenge steps taken by the constitutional monarch of Australia under those State Constitutions. Nevertheless, given the course which argument took, attention was directed not so much to the validity of these complaints as to other aspects of the proceedings.

But, in effect, your Honour, that is a statement which has been made and it is, in fact, of course, a finding – if your Honour would just bear with me for a moment, I think it is repeated again.

GLEESON CJ:   As I understand what Justice Hayne was doing, he was reciting the arguments that had been advanced on your side of the case and, having recited those arguments, he came to the conclusion, on the middle of 147, that what you were seeking to do was to make a collateral attack on a decision of the Supreme Court of South Australia and it was on that basis that he said the action was an abuse of process.

MR FITZGIBBON:   Yes, yes.

GLEESON CJ:   Now, why is not your argument a collateral attack on the decision of the Supreme Court of South Australia?

MR FITZGIBBON:   Because, your Honour, the history of the matter as demonstrated by the appeal book would demonstrate that, in fact, the challenge was initially made under M17 and that is why it is in there as part of the history in this Court and then when the matter came before ‑ and that is also in the appeal book ‑ Master Bowen Pain – indeed, I tendered a copy

of M17 and that is referred to in the judgment itself – but despite that, Master Bowen Pain elected to, in fact, disregard is, I think, the proper word to use on that and so, by that, as I say, the very argument, the nub of the argument which I am raising here, namely that the consequences that flow from the Queen of Australia being the Queen of the United Kingdom and she is not a divisible – I mean no disrespect – entity as referred to, of course, in Sue v Hill particularly by Justice Gaudron.  The very attack there was that, in fact, Justice Bowen Pain’s commission assigned by the then Governor of South Australia was in issue and the fact that the Corporations Law was also very much in my mind as I challenged on that, then, in fact, I say it never was a collateral attack as such.  I go further than that.

GLEESON CJ:   Now, I think your time is up, Mr Fitzgibbon.

MR FITZGIBBON:   I am sorry, your Honour.  Can I just be given a moment or two to wrap.

GLEESON CJ:   Yes.

MR FITZGIBBON:   I realise I am someone who is longwinded and your Honour has had cause in the past to remind me of that.

GLEESON CJ:   I had forgotten about that.

MR FITZGIBBON:   What, in essence, I say is that this is a case that ought and should be dealt with by our Full Court.  It is of great significance.  It is not what my friends say and nothing whatever they say and, your Honours, that is clearly in the material in front of you and so I stand, your Honour, on those two issues and I say that, of course, on that basis the application should be allowed.  Thank you.

GLEESON CJ:   We do not need to hear you, Ms Batrouney, Mr Walker.  What I am about to announce are the joints reasons of Justice Callinan and myself as to the way in which we would dispose of this matter.

This is an application for special leave to appeal from a decision of Justice Hayne given in proceedings M31 of 2001.  Justice Hayne concluded that the proceedings instituted by the present applicants constituted an abuse of process and ordered that they be dismissed and that there be judgment for the defendants.  He made a consequential order as to costs.  The reasons for the conclusion that the proceedings were an abuse of process appear between pages 36 and 41 of the application book.  In brief, his Honour held that the proceedings amounted to an impermissible collateral challenge to a decision of the Supreme Court of South Australia ordering the winding up of a certain company.

The arguments that have been advanced to the contrary of the reasoning of Justice Hayne in writing and orally are unpersuasive.  His Honour’s decision was correct.  Proceedings M31 of 2001 were an abuse of process. 

In their written submissions, although these have not been developed in oral argument, the applicants for special leave also submit that Justice Hayne was disqualified from sitting on and deciding the matter by reason of actual or apparent bias. 

There is no factual basis shown for any claim of actual bias. 

As to the claim of apparent or apprehended bias, the relevant principles are set out in the decision of this Court in Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644. The basis of the claim is that in other legal proceedings involving some of the parties to the present proceeding, Justice Hayne’s wife, who is a practising barrister, Ms Gordon, had appeared for the revenue authorities against certain of the present applicants. There is no suggestion that Ms Gordon ever appeared in or had any association with the present proceedings. The proceedings in which she appeared were heard some months earlier than the hearing before Justice Hayne and they were not related to matter M31 of 2001, nor were the arguments or issues that arose in those earlier proceedings the same as or similar to or in any way connected with the arguments and issues in matter M31 of 2001. There is no basis for the submission of apprehended or apparent bias.

The application is dismissed with costs.

MS BATROUNEY:   If the Court pleases, might I mention two matters.  The Commissioner hereby makes an application for indemnity costs that because of the way in which these proceedings before your Honours today have been conducted and because of the nature of the hopelessness of the case, that the Court order that costs be paid on an indemnity basis.  I use that as a shorthand, referring to the costs order that his Honour made. 

The second matter the Commissioner would like to raise is the allegations made in the summary of argument by Mr Fitzgibbon in relation to the Australian Government Solicitor, and might I take the Court to those.  We refer to them in paragraph 18 of my learned friend’s summary of argument.  The Commissioner would ask that the Court ask the Registrar to refer the papers to the New South Wales Bar Council.

GLEESON CJ:   Is there a basis of costs that we could order as between solicitor and client?  Is that a possible basis of ordering costs?

MS BATROUNEY:   Yes.

GLEESON CJ:   I am not asking you whether you want it.  I am just asking whether it is a possible order.

CALLINAN J:   That was the order I made in, I think, Helljay in Brisbane.  Is that the name of the matter?

MS BATROUNEY:   Yes, that is right.

CALLINAN J:   And I defined fairly clearly what I meant there by “solicitor and own client costs”, I think.  I think that was the order I made.  Is that not right?  Or was it in ‑ ‑ ‑

MS BATROUNEY:   I think your Honour Justice Callinan appeared in Arundell.

CALLINAN J:   Arundell, yes.  Can you just remind me ‑ ‑ ‑

MS BATROUNEY:   I do not have that order there, your Honour, I am sorry.

CALLINAN J:   But it was an order for solicitor and own client costs with a definition of exactly what I meant in that regard.

MS BATROUNEY:   What we would seek is the form of the order that Justice Hayne made at page 47 of the ‑ ‑ ‑

GLEESON CJ:   I know what you seek.  My question to you is whether it is possible for us to make an order that the costs be paid as between solicitor and client.  I just want to know whether that is a form of order we can make.

MS BATROUNEY:   I understand it would be, yes, your Honour.

GLEESON CJ:   We have heard your argument in support of the indemnity costs.  In relation to the other matter that you raise, why can you not refer the matter to the Bar Council?  Why should we give, as it were, the imprimatur of the Court to that action?  The Bar Association is capable of dealing with complaints, is it not?

MS BATROUNEY:   It is.

GLEESON CJ:   What do you say, Mr Fitzgibbon, about the possibility that we order costs as between solicitor and client?

MR FITZGIBBON:   Your Honour, in Helljay, which your brother Hayne appeared in, that was a matter that I had appeared on.  Eventually of course, the client was ordered to pay and not the solicitor.  It is a matter – I have a view on it.

GLEESON CJ:   No, do you have any submissions on it?

MR FITZGIBBON:   No.

GLEESON CJ:   We made an order that the applicants pay the costs of the respondents.  We order that the applicants pay the costs of the respondents taxed on a solicitor and client basis.

AT 11.28 AM THE MATTER WAS CONCLUDED