Minogue v Williams

[1999] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M8 of 1999

B e t w e e n -

CRAIG WILLIAM JOHN MINOGUE

Plaintiff

and

CLIVE WILLIAMS (GENERAL MANAGER OF BARWON PRISON)

Defendant

Chamber summons seeking remitter

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 JUNE 1999, AT 9.37 AM

Copyright in the High Court of Australia

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

HIS HONOUR:   I see you are wearing handcuffs, are you, Mr Minogue?

MR MINOGUE:   Yes, your Honour.  I am told that it is required; a direction from you.

HIS HONOUR:   Yes.  Well, is there any reason why Mr Minogue should remain restrained?

GUARD:   No.  Only under instructions of our Governor and it is at your discretion.

HIS HONOUR:   Yes.  If you would be good enough to remove his manacles, thank you.

MR R.D. SHEPHERD:   If the Court pleases, I appear for the respondent.  (instructed by C. Devlin, Legal Officer, CORE – the Public Correctional Enterprise)

May I apologise.  My instructing solicitor is not present in Court as a result of a medical emergency, your Honour.

HIS HONOUR:   Yes.  Thank you, Mr Shepherd.  Now, Mr Minogue, I have read the papers.  You are asking that the case be remitted to the Federal Court of Australia in its Melbourne Registry, is that right?

MR MINOGUE:   That is correct, your Honour.

HIS HONOUR:   Yes.  Perhaps if I hear from Mr Shepherd.  Mr Shepherd, is there any reason why the case should not be remitted to the Federal Court?

MR SHEPHERD:   There is no objection to the remission.  However, the venue is the issue.

HIS HONOUR:   Yes.  Why should Mr Minogue not go to a court of his choice?  Leave aside the issues that Mr Minogue raises about the difficulties that follow if he goes to the Supreme Court rather than the Federal Court for the moment.  Leave those issues aside.  Why should he not go to a venue of his choice?

MR SHEPHERD:   There is a concern on the basis of the statement of claim that the Federal Court may not have jurisdiction to entertain the application.  In essence, it is a claim concerning sections of the Corrections Act, Victoria, and certain other arguments based on treaties and declarations.  It is difficult for my client to fully understand what he wants to agitate, your Honour.

HIS HONOUR:   Mr Shepherd, can I say this – and Mr Minogue will, no doubt, want to take perhaps some note about this – it seemed to me, reading the papers, that there may be serious questions about jurisdiction of any court and at some point very early in this proceeding there is going to have to be a real debate about is there a matter, in the constitutional sense, created by Mr Minogue’s complaints?  I had thought of raising those matters for debate today but, Mr Minogue, appearing for himself, I do not think it right that, in effect, these should be sprung on him and told, “All right, now, let’s have a quiet little debate about the constitutional issues” with you having no notice of that. 

It seems to me that at a very early stage in this proceeding there will have to be consideration to issues of the kind that were looked at by the Court in a case of Re East; Ex parteNguyen (1998) 73 ALJR 140 and also in 159 ALR 108. The sorts of issues that will arise include whether complaints that find their foundation in international instruments like the international covenant are complaints that can give rise to rights in Australian courts.

Again, it seemed to me that it may be that reference should be made to cases like Minister for Immigration and Ethnic Affairs v Teoh 183 CLR 273, particularly at pages 286 to 287 where it is said by Chief Justice Mason and Justice Deane:

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. 

I omit some sentences, and their Honours go on:

So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. 

Those are issues that at some point, and I think some point very early in this proceeding, may have to be debated.  I do not think now is the point.  Mr Minogue says he wants his case heard in the Federal Court.  You say, “Well, they may not have jurisdiction.”  In effect, is that not for Mr Minogue’s risk?

MR SHEPHERD:   It certainly is, your Honour.

HIS HONOUR:   If Mr Minogue wants to take that risk that is up to him.

MR SHEPHERD:   Yes, your Honour.

HIS HONOUR:   Mr Shepherd, before I call on Mr Minogue, is there anything else you want to say against remitter to the Federal Court?

MR SHEPHERD:   No, your Honour.

HIS HONOUR:   Well, Mr Minogue, I will make an order that the case be remitted to the Federal Court and you will, no doubt, give some thought to the things I have said about jurisdiction.  I do not want to embark on them today.  I do not think it would be right for me to do so.  But I suspect – I do not know – when the case comes back on before the Federal Court, very early in the proceedings some judge is going to be asking you to look very hard at those sorts of issues.  So, in the meantime – it is entirely for you, but in the meantime you may want to give some thought about them.

MR MINOGUE:   Yes.  I have given considerable thought about them, your Honour.  There are a couple of matters I would like to raise. 

HIS HONOUR:   Yes.

MR MINOGUE:   And the first is that I am somewhat surprised by Mr Shepherd’s objection to it being remitted to the Federal Court because I have a letter from his instructing solicitor saying that CORE will not oppose any of the orders sought in the summons.

HIS HONOUR:   Opposed or not, Mr Minogue, there is going to be an order that it goes to the Federal Court, so we are sort of past that point, are we not?

MR MINOGUE:   Very well.  The next matter is that in my summons I have asked that the – and it is a bit of a guess, really - Federal Court be invested with the jurisdiction of the High Court in that matter.  I presume that - - -

HIS HONOUR:   If I make an order, they get whatever jurisdiction I have got.  If I have no jurisdiction, then they cannot get what I have not got.  It is as simple as that.

MR MINOGUE:   No worries.  Thank you.

HIS HONOUR:   I think, given the circumstances, it may be as well if I record some reasons so that the Federal Court understand the circumstances in which it comes down to them.

The applicant is a prisoner at HM Prison Barwon, Victoria.  On 11 January 1999, he began an action in this Court against Clive Williams, the General Manager of Barwon Prison.  By his action the plaintiff complains of his treatment in prison.  On 23 March 1999, the defendant filed a defence denying most of the allegations that are made.  On 14 April 1999, the plaintiff filed an amended statement of claim.

On 24 May, he filed a summons seeking an order that the proceedings be remitted to the Federal Court of Australia sitting in Melbourne.  He contends that remitter to the Supreme Court of Victoria would work hardship to him because it would mean that his place in the prison system would be lost with consequent disruption to him and interruption of access to his property and to work and recreation facilities in the prison.  The defendant submitted that the proceeding should be remitted to the Supreme Court but did not point to any disadvantage that it was said would be suffered if the proceeding were to be remitted to the Federal Court.  In those circumstances I have no doubt that the proceeding should be remitted to the court chosen by the plaintiff.  I need form no view, and I express no view, about the various matters urged by the plaintiff in support of his application.  It is enough that he seeks remitter to the Federal Court and no reason is shown why that Court is inappropriate.

As I said in the course of argument, there should be no misunderstanding about the circumstances in which the remitter is made. It is by no means clear to me that the proceeding properly engages the jurisdiction of this Court or constitutes or concerns a "matter" as that expression is used in Ch III of the Constitution. Some of the questions that arise in this connection were considered in Re East; Ex parte Quoc Phu Nguyen (1998) 73 ALJR 140; 159 ALR 108. Because the plaintiff is unrepresented and because the defendant has not raised any of these matters in its defence, I did not think it right to embark on their consideration when the applicant sought remitter and the only dispute between the parties was to which court the proceedings should be remitted. No doubt, however, they are matters to which early attention will have to be given in the further conduct of the proceedings.

There will be an order for remitter to the Federal Court of Australia, Melbourne Registry.  The costs of the application will be costs in the proceeding.  I will certify for counsel.

I will adjourn.

AT 9.51 AM THE MATTER WAS CONCLUDED