Nguyen and Anor v The Commissioner of the Australian Federal Police and Ors

[2013] HCATrans 305

[2013] HCATrans 305

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B51 of 2013

B e t w e e n -

MAU DUNG NGUYEN

First Plaintiff

DUONG THI BICH LIEN

Second Plaintiff

and

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

First Defendant

JOHN PARKER

Second Defendant

THE COMMONWEALTH OF AUSTRALIA

Third Defendant

Directions hearing

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 12 DECEMBER 2013, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR G.D. WENDLER:   If the Court pleases, I appear for the plaintiffs.  (instructed by Bruce Peters – Solicitor)

MR A.S. McDOUGALL:   If the Court pleases, I appear for the first defendant.  (instructed by the Australian Federal Police)

MR G.J.D. DEL VILLAR:   May it please the Court, I appear for the third defendant, the Commonwealth of Australia.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Wendler.

MR WENDLER:   If the Court pleases.  Before I commence, your Honour probably knows from the filed papers to date that there has been compliance by the first and third defendants in relation to order 1 of the orders that your Honour made on 14 November last.

HIS HONOUR:   Yes.

MR WENDLER: In other words, the special case stated has been raised including the questions that give rise to issues involving the Constitution and/or its interpretation. Can I seek leave to file in Court a document which complies with the second order that your Honour made on 14 November last. My friends have ‑ ‑ ‑

HIS HONOUR:   This is your response to the ‑ ‑ ‑

MR WENDLER:   Yes. 

HIS HONOUR:   Any objection, gentlemen?

MR McDOUGALL:   No objection, your Honour.

MR DEL VILLAR:   No, your Honour.

HIS HONOUR:   I will give you leave to file that, Mr Wendler.

MR WENDLER:    Yes, thank you.  Procedurally the matter is significantly advanced, having regard to the fact that there is agreement with the ‑ ‑ ‑

HIS HONOUR:   Well, I am not sure there is, is there?  I received this morning submissions of the third defendant which suggest there is not agreement.

MR WENDLER:   Yes.  I received those submissions about five to nine this morning myself and I must say I was a little surprised by them, given the fact there were, shall we say, concessions made before your Honour on the last occasion, or I took them to be practical concessions or pragmatic concessions by both the first and the third defendant.  Can I just hand up a copy of the transcript of what occurred before your Honour on the last occasion and just point out to your Honour the point I am seeking to develop. 

Your Honour will recall on the last occasion your Honour intimated that there would be no defence filed by the first and third defendants.  My friend who appeared for the third defendant at page 4 at about point 3 on the page, your Honour inquired:

I was wondering whether it was appropriate to make an order for the special case before the defendants put on a defence.  Do you have any submissions about that -

Mr McDougall - who appeared, and today also appears for the first defendant - my friend had no submissions about that.  My friend who appeared for the third defendant indicated there was no difficulty with putting on a special case at the moment and correctly identified that it was the legal issues that were in contest and there was unlikely to be any contest over the facts.  Then my friend indicated at about point 7 that the pleadings in the statement of claim were brief, or economic, and your Honour then at point 8 indicated your concern.  But then your Honour said:

Do I take it that as a result of your discussions you are confident that the special case will state those facts that are necessary to make the questions that are sought to be agitated live?

My friend replied “Yes”.  So, on those representations, your Honour made the orders that your Honour made on 14 November.  So whether the pleadings in the statement of claim are in an economic form or not, the fact is that the case stated allegations are complete, comprehensive, not in dispute and identify the questions that are sought to be raised. 

My friend in his written submissions, or, indeed, the defendants in their written submissions as I read them this morning, now effectively seek to resile from that position, a position which they indicated to your Honour, or confirmed to your Honour, that they were confident that such facts that were relevant to the case stated would be – the special case – would be in the special case in any case and that would take care of the procedural environment, if you like, that was before your Honour last November.

Your Honour on those representations by agreement in relation to all the parties made the orders that your Honour did in fact make.  So, now my friends seem to resile from that to say, well, your Honour intimated various misgivings.  We now want to say that – or take issue rather in relation to the pleadings as they stand.  The other matter they raise concerned the judge, Mr Justice Martin, who made the order for examination at the end of July I think it was this year, as not being joined as a party.  Now, it is my submission that that really effectively is of no consequence at the moment and I will just ‑ ‑ ‑

HIS HONOUR:   But you seek an order for certiorari quashing his decision.

MR WENDLER: Yes, and I appreciate the force of your Honour’s concern and can I just explain my response to it. As your Honour knows, there is absolutely nothing in the Constitution about the writ of certiorari. Of course in section 75(v) there is identification of other prerogative relief but not certiorari. History of the cases reveal that when this Court has in fact given relief by way of certiorari it has always been ancillary to a substantive remedy mostly – well, pretty well always – pursuant to section 75(v), but, of course, the condition in section 75(v) is that the relief, whether it be one of the original jurisdiction writs in 75(v), the condition is, of course, that it be an officer of the Commonwealth. No one would seriously suggest that Mr Justice Martin is an officer of the Commonwealth. So, therefore, section 75(v) cannot assist. We would not be seeking a writ relying on section 75(v).

Next question:  what is the jurisdiction available in this Court to join Mr Justice Martin as a defendant in the proceedings?  Possibly 76(i) allied with section 31 of the Judiciary Act.  However, because the plaintiffs are seeking declaratory relief, the legal effect of which will be to render null and void the examination order, it is a pointless exercise to join the judge.

HIS HONOUR:   But unless that order is got rid of ‑ ‑ ‑

MR WENDLER:   I am sorry, your Honour?

HIS HONOUR:   Unless his Honour’s order of July 31 dismissing the application for summary judgment and ordering the examination is got rid of, it is an order of a superior court of record that is valid until set aside, or set aside either on appeal or by quashing order by ‑ ‑ ‑

MR WENDLER:   Yes, I appreciate all that and this matter has given me some concern, but, of course, there is what was identified recently in Wingfoot v Kocak in which your Honour – I will just hand that up – in which your Honour was a member of the joint judgment.  The critical passage is paragraph 25, and that passage has added, in my respectful submission, another layer of complication, if you like, at paragraph 25 because it would appear that that passage stands for the proposition that:

An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent.  An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.

So the declaratory relief that the plaintiffs seek, the ultimate legal effect would be to render null and void the order made by Justice Martin.  What is the efficacy of certiorari on top of the declaratory relief which achieves procedurally a null and void effect?

HIS HONOUR:   Well, the efficacy is that there are two orders which are inconsistent unless the order of Justice Martin is got rid of.  The case you are taking me to, of course, is not a case about 75(v).  It is a case about the power of the Supreme Court of Victoria to issue what is probably still accurately described as a prerogative writ rather than a constitutional writ.  I have to say the – before I go further, can I also say that in the draft I have been given, in paragraph 17 – and I appreciate you are not responsible for this, but you have looked at it and your client is prepared to go along with it ‑ paragraph 17 refers to the ex tempore judgment on those applications, plural, and made orders.

Now, the only ex tempore judgment that I can find in document A relates to the order for examination.  I cannot find the one which deals with the summary judgment application.  It is something I am a bit interested in because one of the things that I am struggling with is just how the arguments are framed and the extent to which they depend on matters of fact.  Paragraph 15 of the draft special case says “The examination order was sought on the basis that they had claimed an interest in the property restrained and the AFP believe they would be able to give information relevant to it”. 

Well, claim, belief – what are the facts on which the Court is to decide the case, particularly bearing in mind that looking at question 23(b) the claim does not seem to be about ex facie invalidity of these provisions but rather it is how they apply in the circumstances of this case in that by reason of the circumstances of the case your client’s right to a fair trial is imperilled, and the only fact that is apparent in relation to that is that neither of the plaintiffs have been charged with any offence.

It just all seems a bit vague and diffuse and I wonder whether the easier and, certainly, the more convenient and efficient course would be, or would have been, for your client to appeal Justice Martin’s order.  I mean, at the end of the day there has to be a proceeding whereby that order is got rid of if you are right.  Now, the usual way of doing that is to appeal it.  Another way is to seek certiorari.  So far you have a problem in relation to that in terms of procedure.  What is the difficulty with – I mean, I see in the submissions Mr del Villar’s client will not take a point about time.  What is the difficulty about appealing that order?

MR WENDLER:   Well, the original jurisdiction – the issues, or constitutional issues, sought to be raised are available to be raised in the original jurisdiction of this Court and the plaintiffs seek ‑ ‑ ‑

HIS HONOUR:   Yes, and the procedure that you are invoking to do it, rule 27.08, depends upon agreement.  Now, it looked like there was agreement.  Now, it looks like there is not.  Absent agreement you are not within rule 27.08.  I am just wondering why it is that the ordinary course – and what looks to me like probably the more efficient course, that is to say, an appeal against the order of Justice Martin, has not been pursued.

MR WENDLER:   Well, there has already been significant work expended in the matter and there was agreement ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that.

MR WENDLER:   ‑ ‑ ‑ by the parties on the last occasion to proceed effectively in this manner.  The matters raised are of constitutional importance, in my respectful submission.

HIS HONOUR:   To the extent that that is so there is no reason why they cannot be agitated on an appeal.

MR WENDLER:   Well, they could be, but judicial economy may suggest that now that we are here and the work has got to the level it has that it should proceed here.  Indeed, if the plaintiffs were unsuccessful before the Court of Appeal there would be no doubt that the first defendant would appeal.

HIS HONOUR:   I understand that.

MR WENDLER:   Yes, and there is no doubt that the plaintiffs would appeal as well, so it just lengthens the process, and also the examiner

appointed has, in effect, adjourned the examination process as a result of the commencement of these proceedings.  So that, as it were, expands the work when in fact we are here on the basis effectively of the concessions made, as I took them to be, on the last occasion before your Honour. 

The questions, as I say, that emerge out of a challenge to the constitutionality of parts of the Proceeds of Crime Act have national importance.  The States, for instance, all have legislation roughly mirroring the legislation under attack here, and as I have already indicated, the matter is of some significance to the administration of criminal justice effectively.

HIS HONOUR:   Perhaps I will hear from Mr del Villar and Mr McDougall.  Thanks, Mr Wendler.  Mr del Villar.

MR DEL VILLAR:   Your Honour, we agree with the criticisms, or at least the questions that your Honour has raised with regard to Mr Wendler and his clients.  As for the change in position, that was because having gone through the exercise of drafting the special case it became apparent to us it was actually going to be a much more full exercise than we had originally anticipated.  Your Honour has pointed out paragraphs 15 and 17 of the special case, or the draft special case.  That was our best attempt to try and supply some of the facts which had not been pleaded by the plaintiffs in their statement of claim.

It seems my learned friend is making a claim that Justice Martin does not have to be joined.  In my submission, he clearly does have to be joined if this matter is to proceed here in this Court, and there is no authority to suggest that when one is seeking certiorari against a court or a tribunal that that court or tribunal is somehow to be subject to that order without being made a party.  My learned friend has not cited any authority for that proposition.  His argument seems to be that because 75(v) does not mention certiorari then somehow that prevents the High Court from joining a party ‑ ‑ ‑

HIS HONOUR:   Well, if anything, that really makes the point that – or it raises a further question about the appropriateness of the procedure that has been adopted.

MR DEL VILLAR:   Precisely, your Honour.  Your Honour’s point about the inconsistent order, in our submission, is entirely correct; there would be inconsistent orders if the declaratory relief was given.  The judgment to which my learned friend refers, which is Wingfoot, actually reinforces the fact that one needs certiorari to set aside an order of a superior court of record, so that does not help him at all, with respect.

The arguments about this should – the appellate process should have been availed of, my learned friend has not advanced any argument to explain why the appellate process was not availed of, and it still can be availed of, and in those circumstances the Court should not really be entertaining what is a procedurally fraught matter.  It should simply let the plaintiffs commence their appeal.  No point will be taken about it being late.  I have instructions from my client for that and I understand my learned friend, Mr McDougall, does as well, and that is where it should be played out, in the Court of Appeal.

HIS HONOUR:   All right.  Mr McDougall.

MR McDOUGALL:   Thank you, your Honour.  Your Honour, the first defendant concurs with and supports the submissions of the third defendant.  If the matter – and I need to place on record that if the matter were to be pursued in a Court of Appeal that the first defendant would not object to, in fact, would consent to the matter being heard out of time provided that the matter were to be mounted within a reasonable period of time such that it was not permitted to drag on ad infinitum.

The Court of Appeal would then be able to avail itself of section 40 of the Judiciary Act if it is so then held.  However, it is the position of the first defendant that the matter should be dealt with in the Court of Appeal and otherwise we support the Commonwealth in terms of joinder of Justice Martin.

HIS HONOUR:   Thanks, Mr McDougall.

MR McDOUGALL:   Thank you, your Honour.

HIS HONOUR:   Mr Wendler.

MR WENDLER:   Your Honour, I should have mentioned that on the issue of joinder, that can be corrected, as it were, in these proceedings by simply the plaintiff seeking leave to amend the writ of summons and statement of claim and joining the honourable Mr Justice Martin, and that side wind, as it were, need not add any complexity to the matter, given that in the questions identified by the first and third defendant as they are, one of the questions is whether certiorari is available at all in the circumstances.  So that is an important matter that will be absorbed, as it were, in the overall issues that are sought to be agitated by the plaintiffs.

HIS HONOUR:   Thanks, Mr Wendler.  In the circumstances, while I understand your frustration, that may in the end sound in orders as to costs, I have to say I am at the moment of a mind to simply adjourn this application to a date to be fixed to be brought on on three days’ notice by either party to the other and to reserve the question of costs thus far. 

The reason that I am minded to make that order, or those orders, is that, firstly, there does not appear to be between the parties the agreement upon which the operation of rule 27.08 is predicated; secondly, the case is affected by procedural irregularities which may be cured but currently are not; thirdly, I am not clear as to the factual bases on which the case would go forward to the Full Court having regard to the terms of paragraphs 15 to 17 and 23(b) of the draft which has been put before me.  For those reasons, I would order that the application before me be adjourned to a date to be fixed to be brought on on three days’ notice by either party to the other and that the costs of the proceedings to date in this Court be reserved. 

Adjourn the Court, please.

AT 9.53 AM THE MATTER WAS ADJOURNED