Minogue v State of Victoria

[2017] HCATrans 83

[2017] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M2 of 2017

B e t w e e n -

CRAIG WILLIAM JOHN MINOGUE

Plaintiff

and

STATE OF VICTORIA

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO LARA

ON TUESDAY, 11 APRIL 2017, AT 9.30 AM

Copyright in the High Court of Australia

MR C.W.J. MINOGUE appeared in person.

MR G.A. HILL:   Your Honour, I appear for the defendant.  (instructed by Victorian Government Solicitor)

HER HONOUR:   Dr Minogue, this is a matter where it is listed for directions.  Have you received the State of Victoria’s submissions in relation to this matter?

MR MINOGUE:   Yes, I have, your Honour, but before we deal with that matter there is a housekeeping issue that I would seek to raise with the Court.

HER HONOUR:   Certainly.

MR MINOGUE:   That is in relation to my equitable access to the Court, my standing before the Court and my right to be heard.  Your Honour, I advise that I made an application to Corrections Victoria, which is an agent of the defendant, for a Justice Administration Permit to attend the Court today to be heard in person.

HER HONOUR:   Yes.

MR MINOGUE:   Mr Rod Wise, who is a Deputy Commissioner of Corrections, your Honour, has refused that application on two occasions.  We asked for a review of the application and Mr Wise cited as the reason that the Court did not want me to attend and that it was the expectation of the Court that I appear by video link and not appear in person. 

Now, I feel personally that the video link system, although convenient for minor matters, is not appropriate for this matter.  I feel as if I have a diminished standing before the Court because I am not standing before the Court, am I?  I am seated out at Barwon Prison.  So, I do not have the opportunity to see Mr Hill for the defendant.  Ms Musolino explained to me that the video link system can be clunky and they do not switch between the lectern where the Solicitor‑General or Mr Hill will be speaking, and so I am unable to see my opponent.  I feel this puts me at a disadvantage.

Now, today in Court, your Honour, Ms Hui Zhou should be present.  She is the principal solicitor from the Darebin Community Legal Centre.  I would ask if Ms Zhou would stand so your Honour could see that she is in Court.  Ms Zhou has in her possession two letters from the Legal Centre to Corrections Victoria, an agent of the defendant, which clearly articulates my expressed desire and need to be present and heard in person in Court, and she also has Mr Wise’s written response saying that it is the expectation of the Court that I attend via video and not in person.

I would ask you for leave of your Honour if those documents could be handed up and your Honour could review them because I would like to settle this issue as to whether it is the Court’s view that I should or should not attend in person.

HER HONOUR:   Well, I do not give you advice, Dr Minogue.  What I can tell you is this, that for a directions matter it is unusual for people to attend other than by video link.  If the matter was to be a substantive hearing then I can understand that there would be arrangements made for you to personally attend.  It is a directions hearing to work out how we are going to progress this matter, given it has been filed in this Court.

MR MINOGUE:   Yes, very well, your Honour.  So, is Mr Wise correct in his assertion that the Court did not particularly want me in person?

HER HONOUR:   That is not at all what I said, Dr Minogue, and I will not have words put into my mouth.  What I said to you is it is a directions hearing and arrangements were made for you to attend by video link.

MR MINOGUE:   Very well, your Honour, we will continue.

HER HONOUR:   Well, I will determine whether we will continue, and we will continue.  What is your application this morning?  What do you want to happen to your matter.

MR MINOGUE:   Your Honour, my oral submissions this morning simply go to the admittance and adjournment matters that were put by the defendant in their reply.

HER HONOUR:   Right.

MR MINOGUE:   As a self‑represented litigant my understanding of the law and the Court process is an ongoing project, and I have been aided greatly by the submissions from the defendant in tightening my matter up and fixing some errors.

HER HONOUR:   Yes.

MR MINOGUE:   It is my intention to seek the leave of the Court when this matter comes for hearing to reopen Crump to give the Court the opportunity to distinguish that case, by extending the principle in Crump so as to address what I claim has been a fraudulent use of the judgment in Crump by the Parliament of Victoria.  The Parliament in Victoria has wilfully misrepresented the law in Crump to enact an unlawful provision at section 74AAA. 

The judgment in Crump and the High Court and the name of the Chief Justice were explicitly invoked, your Honour, on 11 occasions in Parliament as a justification for section 74AAA in its application to me personally.  When I say personally, I mean personally, because I was named in Parliament on 34 occasions in relation to this legislation and the crime I was convicted of was mentioned on 44 occasions.  The law in Crump, I say, is really a simple matter that has been obfuscated for unlawful purposes by the Parliament.

HER HONOUR:   Can I ask you a question?

MR MINOGUE:   Yes.

HER HONOUR:   There are three matters that are of concern to me that I would like you to think about.  I can see you have a pen.  Do you have some paper to write these down so you can respond to them for me if you might?

MR MINOGUE:   Yes.

HER HONOUR:   The first is this.  As you may very well know there is not only the Crump matter but there is a related matter of Knight that is currently reserved before the Full Bench of the High Court.

MR MINOGUE:   Yes, your Honour.

HER HONOUR:   The second is this.  There are, in effect, three or four ways in which a matter like this would ordinarily or may come up towards the High Court.  One is that you would have a statement of claim, which you have filed, to which the Commonwealth or, in this case, the State of Victoria, can do one of two things.  It can either respond to it by way of what we describe as a demurrer; that is, it can say listen, I accept all the facts as set out but I say that regardless of that it is not an answer to your legal complaint.

The second way is for the parties to agree a special case between them.  The third way is by way of a stated case where a judge themselves would identify, if they thought there was a complaint, a question to be answered by the Full Bench of the High Court.

My difficulty at the moment – and it is no criticism of you, Dr Minogue, and I do not want you to take it as a criticism – is that your statement of claim needs some work.

MR MINOGUE:   Yes, by all means.

HER HONOUR:   The question I have for you is this.  It seemed to me it would be in everyone’s interests – and by that I mean the State of Victoria as well as you plus also the Court – if we had some – gave you some proper assistance to formulate the claim.

MR MINOGUE:   Yes, I would accept that.

HER HONOUR:   No disrespect to the Darebin Legal Centre who have being doing a great job assisting you.  Is that something that would be of interest to you?

MR MINOGUE:   Absolutely, yes, your Honour.

HER HONOUR:   Because it seems to me that would be a better way of, in effect, progressing the matter so that your claim, to the extent it can be put, is put on a proper foundation.

MR MINOGUE:   Yes, your Honour.  To respond to the three matters - I will come to Knight in a moment, and I understand there is different procedures, whether it is a demurrer or we agree on a special case, a submission, but I do not think there is much chance of myself and the defendant agreeing, or if your Honour were to state a case with questions for the Full Bench.

If I can just explain a little bit about Crump and Knight and what my cause of action is, because what I fear happens is that sometimes there is a superficial reading of Crump.  It is my submission, your Honour, that this matter should not be remitted because only the High Court has the power to undo and remedy the wrong that has been done, because I have claimed that the action by the Parliament of Victoria cannot be read as consistent with the overarching constitutional assumptions of the rule of law, and I am sure your Honour understands my argument there.

The unambiguous and logical conclusion from an honest reading of Crump is that when a prisoner becomes eligible for parole at the expiration of the non‑parole period, it is at that moment in time, your Honour, that the jurisdiction of the parole authority is enlivened, and it is at that moment that the parole authority, the Executive of government and the legislature are all equally bound by the statutory regime that exists at the time.

HER HONOUR:   So, just so I am clear, the way I understood the way you put your argument is this – and I want you to tell me where I have it wrong.  All right?  You say, as I understand it, that your claim is different to Knight and Crump ‑ ‑ ‑

MR MINOGUE:   Yes.

HER HONOUR:   ‑ ‑ ‑ because when you applied for parole you say you were not only eligible but entitled under the legislation in force at the time to apply for parole.

MR MINOGUE:   I would say that your Honour is mostly correct but I would ask your Honour to not focus on the word “apply”.

HER HONOUR:   Okay, I understand that that is the argument and debate you want to have, but that is the basis of the argument.

MR MINOGUE:   No, it is not, your Honour.

HER HONOUR:   All right.  Well, then I misunderstood and you need to explain to me where I have it wrong.

MR MINOGUE:   Yes, by all means.  My argument is that I became eligible – please forget about the application process for a moment, that is what the defendant is trying to misleadingly deflect my argument to ‑ my argument, my complaint is not about the application process - application, no.  I became eligible for the grant of a statutory privilege on 30 September.  The jurisdiction of the parole authority was enlivened on 30 September.  After 30 September I am held on a warrant from the parole authority, not the sentencing court.

So, I had an enlivened statutory privilege of eligibility on 30 September.  The parole authority had an enlivened jurisdiction on 30 September.  That is the key complaint.  That is the key argument.  Then, between 3 October and 20 October I made the application, and the application was accepted and it was vetted by a statutory decision‑making authority.  An interlocutory decision was made by the parole authority.  The parole authority had meetings.  The Parole Board had meetings and made decisions about my case and accepted substantial written submissions from me.

My complaint is not about the application process as such.  My complaint is that I was eligible for a statutory privilege on 30 September.  The Parole Board had its jurisdiction enlivened on 30 September, and on 14 December the Parliament of Victoria enacted a law to vitiate my eligibility criteria on 30 September and to divest the jurisdiction, the enlivened jurisdiction of the parole authority on 30 September.  It is not about the application process, it is about ‑ ‑ ‑

HER HONOUR:   I understand now.

MR MINOGUE:   Thank you. 

HER HONOUR:   All right.

MR MINOGUE:   So that greatly distinguishes my case from that of Mr Knight because in Knight and Crump’s ‑ ‑ ‑

HER HONOUR:   I understand your argument.  The question is, having now set that out, whether or not it would be in your interest for me to get someone to assist you to formulate the claim in a way which could go forward. 

MR MINOGUE:   Absolutely, and I would take that assistance on board, your Honour.

HER HONOUR:   All right, let us hear from Mr Hill.  Mr Hill.

MR HILL:   Your Honour, you understand that the State submission that the matter should be remitted in part was because of the difficulties in the case and your Honour’s question about legal assistance would address that, or at least go towards that, and I am sure the – I do not have any instructions but I am sure the State would not object if the Court were to arrange legal assistance.  In fact, I think everyone can agree it would greatly assist the resolution of the matter.

Our second point was about the precedential effect of Crump and Knight, and having legal assistance I might expect would go some way towards putting a case that at least is not flatly consistent with those decisions.

HER HONOUR:   Inconsistent.

MR HILL:   Inconsistent.

HER HONOUR:   Yes.

MR HILL:   Thank you, your Honour.  So, as far as the proposal for legal assistance, that would meet many of the State’s concerns about attempting to run this matter in this Court.  Now, there is ‑ ‑ ‑

HER HONOUR:   I should make clear, both to Dr Minogue and to yourself, what the Court would do would be to arrange for someone to provide the assistance to Dr Minogue but that there be no misunderstanding, he is not compelled to accept it, but Dr Minogue would be under no misapprehension that, of course, if the matter was not put into a form which this Court could hear and determine in one of the three ways I have outlined, then the matter would have to be remitted because this Court does not have the facilities to deal with a claim which would have those sorts of live disputed factual and legal issues.

So, what I am suggesting is a mechanism that would enable Dr Minogue to put his best foot forward and enable either by consultation between his appointed assistance and the State to come forward with a mechanism so this Court could hear it.  But if for whatever reason either the assistance is rejected or it is not possible, then the Court would have to then think about how it would deal with the matter.

MR HILL:   Your Honour, may I just check that I have understood how we are to proceed.  Your Honour’s suggestion is that rather than make a decision on remitter today ‑ ‑ ‑

HER HONOUR:   Correct.

MR HILL:   ‑ ‑ ‑ a first step is to see if some legal assistance can be obtained for the plaintiff and then once that assistance is either utilised or not utilised we will be in a better position to understand.

HER HONOUR:   Correct.

MR HILL:   The State, I am sure, would accept that as the first step, that we will see how we go.  Could I just make some comments?  I hope this will assist the plaintiff.  Your Honour was talking about demurrer, special case, stated case – certainly, the defendant’s position would be on the pleadings as currently identified, I do not think they are in a position – they are in a state that the defendant could demur to them.

HER HONOUR:   That is the reason why, Mr Hill, I was suggesting to Dr Minogue it might be of assistance to have someone look at his pleading.  They will have the benefit of the transcript this morning so they will understand what the complaint is and raised by Dr Minogue.  They will have heard what I have said about my concerns about the current form of the pleading, and anything that you wish to add to the transcript that might help that person you may add.

Then, as I said, if Dr Minogue is willing to take the assistance and deal with it then it can come back before me.  If he is not and it is not in a form which can go forward then we will have to think about what we might do with the matter then.

MR HILL:   Yes, your Honour.  If I, then, for the assistance of anyone providing assistance to the plaintiff, offer the State’s observations which, on

the special case, it should be possible in principle to reach agreement on the uncontroversial facts.  On my reading of the statement of claim, the difference between the State and the plaintiff would be what the facts mean, not necessarily on what actually happened.

HER HONOUR:   Right.  Well, that is helpful.

MR HILL:   I hope that would be the case.  I am sure there will be very vigorous disagreement as to what certain – the significance of certain meetings were, but if it were possible to confine a special case to ‑ that there was a meeting and this happened.  There is one area of factual inquiry, your Honour might have seen from the State’s submissions.  Your Honour would know that the Corrections Act does not contain a statutory process for applying for parole.

HER HONOUR:   Yes.

MR HILL:   I think since about 2013 when his Honour Justice Callinan did a review of the parole system, there has been an administrative process for making applications for parole.

HER HONOUR:   Yes.

MR HILL:   The State’s view would be it would be helpful to have some material going to that issue – exactly what are the processes for applying for parole since that new system from about 2013 onwards.

HER HONOUR:   Could I ask this, Mr Hill, because I do not know.  Is that material (a) available, and (b) does Dr Minogue have it?

MR HILL:   I am certain that Dr Minogue would not have it.  I am not aware of whether that material has ever been put in an affidavit form for the purposes of other proceedings.  That is something the State could start looking into from today.

HER HONOUR:   I think that would be very helpful.  Do you have any objection to that, Dr Minogue?

MR MINOGUE:   I do not have ‑ ‑ ‑

HER HONOUR:   You can have a look at it, but at least to get the process started.

MR MINOGUE:   Yes, I understand that, your Honour.  I have no objection to an affidavit being filed with the Court with that information, but before it would be received into evidence I would want to be heard

about what I claim is the obfuscation of my real issue by this focus on the application process.

HER HONOUR:   No, I know.  So, just to be clear, what Mr Hill said was ‑ if you listened really carefully, was actually very important.  What he said was that there should be no dispute about the facts, just the significance of them, so that you have a view about the lack of significance of the application.  They have a different view about the significance of it.  So we are only dealing with the underlying facts for the moment.  We are not dealing with the significance of them.

MR MINOGUE:   Well, I do not object to an affidavit being filed by the defendant, and I would then take your Honour to ‑ ‑ ‑

HER HONOUR:   Well, no, let us deal with Mr Hill and let him finish first and then you can have a right of reply.

MR MINOGUE:   Thank you.

HER HONOUR:   Thanks, Mr Hill.

MR HILL:   Thank you, your Honour.  Now, I do not have any instructions as to how long that might take.  I do not want to create an expectation it could be done immediately.

HER HONOUR:   No, no.

MR HILL:   It might take some time to get – and I would be – all we would hope to do is to do whatever would assist the Court.  If that is to file it so the Court is ‑ at least it is on the Court file.  My thought was the affidavit could then be the basis of discussions between the parties and the plaintiff’s hopefully legal assistant with a view to agreeing on a special case, that if a person ‑ ‑ ‑

HER HONOUR:   That is the way I see it working.

MR HILL:   If one of our witnesses is willing to go on oath I am hoping that will give the State’s position a certain weight in those negotiations on what is in the special case.

HER HONOUR:   I understand.  Well, in terms of timing, at the moment the Court has made no inquiries about getting assistance because I wanted to wait to see what Dr Minogue’s view about it was.  Having heard him, it seems to me, subject to Dr Minogue, that it may be worthwhile adjourning the directions hearing for a period of time to enable the Court to obtain assistance for Dr Minogue and for them to confer with him in order to

determine (a) whether he is willing to accept the assistance, and (b) the outcome of the drafting process, and then having dealt with that that would give you time as well for you to deal with this question about the administrative processes and then consult with the assistant if that person is retained in the way I have described to see whether you can agree a special case.  How long do you think that is likely you are going to need, Mr Hill?  I know there is a lot of “ifs” in there.

MR HILL:   Your Honour, could I answer that question by not answering the question.  The State has made the submission your Honour would have seen that perhaps the Court’s decision in Knight is highly relevant, at least on our view of the world, and so it is quite possible – at least on the State’s analysis of the plaintiff’s position – that the reasoning in Knight will have much to say as to what facts are relevant and that might then affect how long is needed to get the factual material together.  To answer your Honour’s question, I am sure my client would not want me to say anything less than four weeks.  I am not sure if that period is unreasonable for your Honour.

HER HONOUR:   No, I think it is going to take that while in order to make sure that we have a proper pleading that we can deal with and that we have some time for you to consult with the plaintiff’s representative, if we get someone appointed.

MR HILL:   Thank you, your Honour.

HER HONOUR:   Dr Minogue, Mr Hill has been very helpful this morning, as have you.  Subject to what you want to say, my view is that we should probably adjourn the directions hearing for a period of six weeks for this reason.  One is it enables the Court to contact somebody to have them take on your matter; (b) to get the Court file to that person so they can see what has currently been filed, including the defendant’s submissions; third, to give them the transcript from this morning which has been very helpful, both in terms of your articulation of your claim and what Mr Hill said; and then fourthly, most importantly, for them with your assistance to consult with Mr Hill about seeing whether or not the parties can agree a special case, because my present view is that would be the most beneficial outcome for everybody.  Do you have any objection to that course?

MR MINOGUE:   I have no objection whatsoever, your Honour.  I am happy to take assistance with drafting.  My drafting skills are – I do not quite get the drafting thing in the statement of claim, but so, yes, I would ‑ ‑ ‑

HER HONOUR:   I am not being critical at all, I am just trying to put it on a proper footing so that your claim is articulated properly and it has its best foot forward, and if we can get an agreement by way of a special case agreed between yourself and the State then that is a very good foundation for the Court to hear the matter.

MR MINOGUE:   I agree, your Honour, and there are two issues I would like to add for the transcript.

HER HONOUR:   Yes, please.

MR MINOGUE:   That is that, as I say, my knowledge and my thinking about this is a developing project, and what I did think, your Honour, was that I could add a question to my pleadings, or to the special case, which would say this in relation to Crump.  The question would be for the Court, does the statutory law as it exists on the day that a prisoner’s non‑parole period expires equally apply to the prisoner, the parole authority, the government and the legislature because it seems to me that the defendant is saying, no, we can change it after that.  My argument is, no, you cannot change it after the expiry of the non‑parole period and the jurisdiction of the parole authority becomes enlivened.

The other matter that I would like to raise, your Honour, is that I have an affidavit which is ready to go, ready to be sworn, which I would seek to file and make available to the defendant.  Mr Hill said that if they were given the opportunity to file an affidavit of the process issues around parole that this would add – give their position weight in terms of the negotiations between me or between someone appointed by the Court.  I understand Mr Hill’s position and I have exactly the same position, your Honour, and I have ‑ ‑ ‑

HER HONOUR:   Can I deal with that issue in this way?  I had understood Mr Hill to say he did not wish to file the affidavit, he wished to have it sworn and to give it to you and to your appointed representative if we can get someone.  So the Court would not have it unless it became necessary as a result of a breakdown in negotiations and discussions.  So there is nothing preventing you from doing the same, but for my part it may be worthwhile waiting until your appointed representative looks at it to give you some assistance in terms of working out what you need in order to advance the questions you wish to put forward.

MR MINOGUE:   Yes, very well, your Honour.

HER HONOUR:   It is a matter for you, Dr Minogue.  I am not giving you advice, but I think once you have assistance to formulate your claim properly and then to work out what it is you need by way of factual material, you may find that some things become more important and some things become less important.  I do not know.

MR MINOGUE:   Yes, very well, your Honour.

HER HONOUR:   I do not think there is any intention at the moment, and I am making no orders for the filing of affidavit material.  All Mr Hill was suggesting was that they might provide it to you and to your representatives in order for you to see what it is they thought was important.

MR MINOGUE:   Yes, your Honour.

HER HONOUR:   Have I made myself – do you understand what I am saying to you?

MR MINOGUE:   Yes, very well, your Honour.

HER HONOUR:   Do you have any other questions or matters you wish to raise?

MR MINOGUE:   No, not at this stage, your Honour.

HER HONOUR:   So I work out that the six weeks is 23 May.  We might make it 30 May which gives us seven weeks, just to see how we go.  Is that all right with you, Dr Minogue?

MR MINOGUE:   It is, your Honour, and 30 May will be the 31st year I have spent in prison.

HER HONOUR:   Well, there we go.  Mr Hill, does that date suit you?

MR HILL:   Yes, your Honour.

HER HONOUR:   All right.  So, I will adjourn the directions hearing to 9.30 am on 30 May 2017.  In the meantime, Dr Minogue, the Court will seek to obtain some assistance for you in relation to the drafting of the claim and otherwise, as I said, I will make no other orders in relation to the filing of material and there will then be discussions with, hopefully, your appointed representative and Mr Hill and his instructors to seek to see whether you can agree a special case.

MR MINOGUE:   Yes, there is one thing could I add.  I would appreciate if the appointed assistant were to meet with me personally.

HER HONOUR:   All right.  I do not know if I – I cannot direct that.  All I can do is – the transcript will be provided and they will see your request, but as I said to you, the assistance is provided for one objective and one objective only, and that is proper formulation of your claim in order to put it

on its best footing in the best form in order for this Court to hear it because otherwise it will have to be remitted because this Court does not have the capacity to hear disputed questions of fact; that is the problem.

MR MINOGUE:   Very well, your Honour.

HER HONOUR:   All right.  Anything else?

MR MINOGUE:   No, your Honour.

HER HONOUR:   Thank you for your assistance.  Thank you, Mr Hill.  Adjourn the Court.

AT 10.02 AM THE MATTER WAS ADJOURNED