Myatt v President of the Australian Human Rights Commission

[2020] HCATrans 151

[2020] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B30 of 2020

B e t w e e n -

CRAIG NOEL MYATT

Plaintiff

and

PRESIDENT OF THE AUSTRALIAN HUMAN RIGHTS COMMISSION

Defendant

Interlocutory hearing and directions

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE BY VIDEO CONNECTION

ON FRIDAY, 25 SEPTEMBER 2020, AT 10.01 AM

Copyright in the High Court of Australia

MR C.N. MYATT appeared in person.

MS K.A O’GORMAN:   Good morning, your Honour.  I appear for the Attorney‑General for the Commonwealth, seeking leave to intervene as amicus curiae.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you.  I note there is a submitting appearance from the defendant.  Now, that leave is opposed, Mr Myatt, is it not?

MR MYATT:   Yes, your Honour, generally speaking.

HIS HONOUR:   Is there any particular reason why I should not, as it were, have the assistance of the Commonwealth?

MR MYATT:   There was only a minor point, your Honour.  It was not a major issue.  Normally, I think if the law is applied properly that would be acceptable.  There was just the question with respect to some of the facts of the matter, that the Commonwealth employees may have been ultimately subject to an investigation post proceeding, if that was – ultimately orders went that way.  So that was just a question of whether that was going to be appropriate to have the Commonwealth in that role, that is all, because it basically contradicts with the Hardiman principles itself.  It was not a major issue for me, your Honour.  I can understand how the Commonwealth may play that role.

HIS HONOUR:   Thank you, that is of assistance.  I will grant that leave, Ms O’Gorman, for the Commonwealth to intervene as amicus.

MS O’GORMAN:   Thank you, your Honour.

HIS HONOUR:   Now, Mr Myatt, I have had the benefit of all the papers that you have filed thus far and I think as a result I have a fair understanding of the nature of your application.  Is there anything that you wish to add orally or otherwise in further support of it?

MR MYATT:   There are a couple of points I would just make, your Honour.  So I am not represented today.  I did attempt to have counsel appear today.  It is just a little tricky.  This is a fairly complicated matter, so getting someone who is (a) experienced, (b) able to get across the material quickly and (c) appear when it is a little tricky for me personally financially so it is just a question of – I probably would not proceed too much further unless I had counsel.  Your Honour, I understand it makes it quite difficult for the Court and the defendant.  So that is the first thing.

I did not have anything else specifically, your Honour.  I could quickly summarise the case.  I will just be directed by you as to what other information you might need.

HIS HONOUR:   I do not need any more.  I understand all the facts of the matter and the proceedings through which you have been thus far, and I understand the relief that you are seeking and, I think, the basis on which you are putting it.  It is simply that if there is anything further that you wish to say at this stage, this is your opportunity.

MR MYATT:   Would that be – sorry, your Honour, just to clarify, would that be with a view to making a judgment immediately?  Is that what your intention ‑ ‑ ‑

HIS HONOUR:   Yes, partially it is.  I am contemplating making a judgment on it – not right here and now, but taking away the papers and having some further thought about it and then producing a result.

MR MYATT:   There are a couple of issues that come to mind, if you have a moment, your Honour.  So the general presumption that I had was that there would be a remedy to questions of jurisdictional error that were made in an administrative sense.  That was really the process that I was following, not to sort of extend this process beyond the situation it currently is in.  I am now 50 years old.  This actually started when I was 29.  So I do not really want to continue on with any further proceedings, but I would have thought – I did particularly want to have an experienced counsel just sort of have a look over it and potentially make a submission.  That was the only thought that was in my mind, noting of course that it might not be that sort of thing that – perhaps it does not warrant that.  I am not sure, your Honour, so I will be guided by you.

HIS HONOUR:   Let me ask Ms O’Gorman what the Commonwealth’s position is at this stage.  Ms O’Gorman, I see from the document that was sent in by email that the Commonwealth suggests it have some time to put in a response, as it were, to Mr Myatt’s application.  Is that still the intent?

MS O’GORMAN:   Your Honour, as your Honour would have seen in the supporting affidavit of Ms Leisa Therese Pendle, the Commonwealth has already filed a draft response.  That draft response does refer to a supporting affidavit that is yet to be filed.  If your Honour was minded to embark upon the course to which your Honour has already intimated, the Commonwealth’s position would simply be that as a matter of formality and to complete final paperwork it would be necessary for the Commonwealth to file that supporting affidavit and perhaps finalise a response.  The content would not change.

HIS HONOUR:   Excellent.  That could be done by next Friday?

MS O’GORMAN:   Yes, your Honour.

HIS HONOUR:   Very well.  Mr Myatt, that sounds like a sensible course because we will have a formal version by next Friday of the Commonwealth’s position, obviously in opposition to the application for the reasons stated in the draft response that has been put on already.  I think that I will adopt that course and give you then another week, which is to say until 9 October, to put in any reply that you wish to.  It does not mean you have to.  It might be that it is unnecessary when you see what the Commonwealth says, and you have a pretty good idea about it already because you have seen the draft response.  But just in case you want that opportunity I will give you until 9 October to put it in and then I will make a decision as to the way in which the matter goes, whether I decide it simply on the basis of the papers without a further hearing or whether I call you both back and ask for some further oral submissions.

MR MYATT:   Yes, your Honour, okay.

HIS HONOUR:   That suits, thank you.  In that case I shall make the directions that:

1.The Attorney‑General for the Commonwealth is granted leave to intervene as amicus curiae.

2.The Attorney is to file and serve by 4.00 pm on Friday, 2 October 2020 a settled response and affidavit in support.

3.The plaintiff file and serve by 4.00 pm on Friday, 9 October 2020 any reply to the response of the amicus curiae.

4.The costs of this day are reserved.

Thank you both.

MS O’GORMAN:   Thank you, your Honour.

MR MYATT:   Thank you, your Honour.

HIS HONOUR:   Adjourn now.

AT 10.08 AM THE MATTER WAS ADJOURNED