Nguyen, Ex parte- Re East

[1998] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M53 of 1997

In the matter of -

An application for declarations and
  writs of Certiorari and Habeas Corpus
  against ROSEMARY EAST

First Respondent

MAGISTRATES' COURT OF
  VICTORIA AT SUNSHINE

Second Respondent

COUNTY COURT OF VICTORIA
  AT MELBOURNE

Third Respondent

GOVERNOR OF FULHAM PRISON

Fourth Respondent

Ex parte -

QUOC PHU NGUYEN

Prosecutor/Applicant

HAYNE J   (in Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 11 MAY 1998, AT 9.30 AM

(Continued from 26/3/98)

Copyright in the High Court of Australia

______________________

HIS HONOUR:   Mr Perkins, you are still for the prosecutor?

MR PERKINS:   If your Honour pleases.

HIS HONOUR:   Mr Burke for the first of the respondents, I think.  Mr Burmester and Mr Ruddle?

MR BURKE:   Mr McArdle was not available today, your Honour. 

HIS HONOUR:   Yes, thank you, Mr Burke.  Now, Mr Perkins, you I take it have seen the submissions that have been filed by the respondent and the interveners, have you?

MR PERKINS:   Yes, your Honour. 

HIS HONOUR:   You have seen what the Commonwealth has had to say.

MR PERKINS:   Yes, your Honour. 

HIS HONOUR:   Leaving aside for the moment the question whether an arguable case is raised, what do you say about the proposition that in the first instance the Full Court should confine its attention to questions of jurisdiction?

MR PERKINS:   Your Honour, my position is this:  that that may be appropriate.  The question perhaps involves the referral of any issues of fact to either the Federal Court or the Supreme Court, as the Court may think fit.  I wonder, your Honour, if it would be appropriate for the matter to be addressed by the prosecutor replying to those submissions in writing within, say, 10 days.  I am putting it like that, your Honour, in circumstances where I accept that the procedure suggested is not inappropriate but I would like to give the matter some further thought, and to discuss it, I might say, with Mr Francis.

HIS HONOUR:   Is there any reason to which you would point at the moment why issues of fact might be better determined now, rather than the matter simply going on in the Full Court and perhaps confined only to questions of jurisdiction?  That is, can we deal with jurisdiction first or must we first, on your submissions, find some facts or have some factual issues tried?

MR PERKINS:   Your Honour, so far as the prosecutor is concerned, we have raised and placed in evidence some facts.  I understand that the respondents may wish to controvert what we say.  That has not been done.  I understand that it may be done by comment or submission about the evidence that we have put forward but I am not clear whether the respondents wish to go any further than that.

HIS HONOUR:   Yes.  So far as you are concerned, though, are you content to have the issues of jurisdiction determined on the factual basis that you have put forward?

MR PERKINS:   Yes, if your Honour pleases.

HIS HONOUR:   Yes.  Other than suggesting that it may be desirable for you to put on some submissions by way of reply, is there any other direction or contention that you make about what directions I should give today?

MR PERKINS:   No, your Honour, except we would like to have the matter proceed as soon as that can be arranged, but perhaps that went without saying.

HIS HONOUR:   Yes, thank you.  Now, Mr Burke, what does the first respondent say?

MR BURKE:   That there is no need to have any fact-finding done at this stage, that even assuming the facts are as the prosecutor contends, that there is sufficient material before the High Court to make a decision on jurisdiction.  Our position is that even if everything that the prosecutor says is true, that would not permit the prosecutor to bring an application in the original jurisdiction of the High Court where the basis of that application is an alleged breach of the Racial Discrimination Act.  So we say there is no need to make any fact-finding at this stage, that the material is sufficient to enable a determination of jurisdiction at this stage.

HIS HONOUR:   Yes, and are you content to have the matter go forward with the Full Court, if it is minded to do so, dealing first and only perhaps with questions of jurisdiction?

MR BURKE:   Yes, your Honour. 

HIS HONOUR:   What do you say about questions of submissions in reply and the like?

MR BURKE:   My friend's written reply?

HIS HONOUR:   Yes.

MR BURKE:   Any further light my friend can throw on the question of jurisdiction would be appreciated, your Honour. 

HIS HONOUR:   Yes.  Now, Mr Burmester.

MR BURMESTER:   Yes, your Honour, we are happy with that course.  In our written submissions we did make reference to this alternative ground but that was only if that was something the Court also wished to consider.  We do not think that is necessary.

HIS HONOUR:   I think there may be some difficulty about dealing with it in that way, given that Dawson J in July last year ordered the return of the motion before a Full Court.  I think there may therefore be some difficulty about my acting as a single justice, the matter having already been ordered to be returned in that way.

MR BURMESTER:   Yes, your Honour, I did not expect yourself to deal with this, rather than perhaps at the hearing when jurisdictional issues are canvassed.  Your Honours might also like to have the possibility of, as it were, avoiding a decision on jurisdiction and disposing of it on another ground.  But I am quite content if the question of jurisdiction alone is to be determined.

HIS HONOUR:   Now, what do you say about the possibility of factual controversy?  Is that a matter in which you, for the intervener, have anything that you can say?  Leave aside what you might wish to say.

MR BURMESTER:   I think not, your Honour, in terms of the facts.  Certainly the question of jurisdiction can be determined on the facts as they are, in our view.

HIS HONOUR:   Yes, at least at first blush it seemed to me that if there is to be factual controversy it lies between Mr Burke's client and Mr Perkins' client, not between the interveners.

MR BURMESTER:   That is correct.  We do not have a particular interest in the facts.

HIS HONOUR:   Yes, and as to the suggestion that Mr Perkins might put on some submissions in reply?

MR BURMESTER:   I would support submissions in reply, your Honour. 

HIS HONOUR:   Yes.  Now, Mr Ruddle, do you want to add anything to what has been said?

MR RUDDLE:   I do not want to add anything, your Honour.  The Attorney‑General for Victoria is content to go along with what Mr Burke suggests.

HIS HONOUR:   Yes.

MR RUDDLE:   We cannot say anything about the factual controversial issue.

HIS HONOUR:   No.  It seems to me the course that is adopted by the Full Court will in the end have to be decided by the Full Court.  It is not so much a matter for my giving directions about the way in which the argument before that Court proceeds.  On what I know of the matter, it seems likely to me that the question of jurisdiction may be the matter on which the Court would be assisted by hearing argument first.  But may I make plain that it will be for the Full Court to chart the course of the hearing.  For the moment I would be minded only to direct that any written submission in reply on behalf of the prosecutor be filed and served on the respondents and - all interveners or simply the Commonwealth and Victoria?  That is all Attorneys, rather, or those who have presently announced an intention to intervene?

MR RUDDLE:   I would suggest all Attorneys, sir.

HIS HONOUR:   All Attorneys.  Is there any difficulty about that, Mr Perkins?

MR PERKINS:   No, your Honour. 

HIS HONOUR:   Then the direction would be that any written submission in reply on behalf of the prosecutor be filed and served on the respondent and on the Attorneys-General for the Commonwealth, States and Territories - if we said on or before 12 noon, 22 May, Mr Perkins, would that be suitable?

MR PERKINS:   Yes.

HIS HONOUR:   Now, if I reserve costs and certify, I would propose to inform the Chief Justice and the principal registrar that the matter may now take its place for hearing.  No doubt its age and its nature will affect when it comes on but I, as you will understand, can offer you no better information than that.  Yes, Mr Burke.

MR BURKE:   Your Honour, one thing that occurs to me is, as there have been no pleadings in this matter, there is no statement of claim, that it may assist the Court if, as well as providing the reply which my learned friend has referred to, there was also something in the nature of a statement of claim or some seriatim listing of the contentions of fact which the prosecutor relies upon as justifying his submission that the Court has jurisdiction.  Then it would be abundantly clear what facts the prosecutor is relying upon for the purposes of the argument.  At the moment we only have a notice of motion and some submissions.  It might lead to more clarity in argument if the prosecutor does briefly set out what the factual basis of his claim is so that everyone is aware ‑ ‑ ‑

HIS HONOUR:   I am very reluctant, I might say, Mr Burke, to proliferate papers in this matter.

MR BURKE:   Yes.

HIS HONOUR:   I had understood that the prosecutor's submissions that were dated 17 April were intended as as complete and specific a statement of the grounds of jurisdiction and other contentions as the prosecutor could make.  You may say they are not evocative of jurisdiction.  That I understand is the contention you will make to a Full Court.  But I doubt we are going to advance matters greatly by having the prosecutor restate what is already in the submissions, understanding as I do that that is in effect - I do not say this disparagingly - the best they can do.  Mr Perkins, is there any doubt about that, that the submissions represent the best foot forward that you can put?

MR PERKINS:   Your Honour, if I can say apropos of the suggestion that we should list the facts which we say attract jurisdiction, I say this:  that I am not arguing for or against that but we are quite prepared to do that if it is thought that it would be of assistance.

HIS HONOUR:   It may be something in your reply, Mr Perkins, that you may find a convenient way of dealing with it.  I will not say positively that you must but the advantage in identifying with clarity the basis of jurisdiction is self‑evident.

MR PERKINS:   Yes, if your Honour pleases.

HIS HONOUR:   Mr Burke, is there anything you would wish to add about that?

MR BURKE:   No, your Honour. 

HIS HONOUR:   Was there anything else then that I need deal with?

MR BURKE:   No, your Honour. 

HIS HONOUR:   Yes, I will adjourn.

MATTER ADJOURNED AT 9.45 AM