Northern Territory of Australia & Ors v Mengel

[1992] HCATrans 333

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No DS of 1992

B e t w e e n -

NORTHERN TERRITORY OF

AUSTRALIA, DAVID TABRETT

and ROBERT BAKER

Applicants

and

ARTHUR JOHN MENGEL,

ELEANOR CAROLINE MENGEL,

RODNEY JOHN MENGEL,

SUSY CHRISTINE MENGEL,

WALTER KLEIN and

CAROLYN KLEIN

Respondents

Application for special leave

to appeal

DEANE J
DAWSON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 NOVEMBER 1992, AT 12.33 PM

Copyright in the High Court of Australia

Mengel 1 12/11/92

MR T.I. PAULING, QC, Solicitor-General for the Northern

Territory:  May it please the Court, I appear with

my learned friend, MR R.S. SOUTHWOOD, for the

applicants. (instructed by Solicitor for the

Northern Territory)

MR R.A. CONTI, QC:  May it please the Court, I appear with

MR P.O. DURACK for the respondent. (instructed by

Cridlands)

DEANE J: Yes, Mr Solicitor?

MR PAULING: If Your Honour pleases, I have given to the

clerk six copies of an outline of submissions.

DEANE J: Yes, we will take a moment to read them.

Mr Solicitor, can I suggest you might at this stage

direct your comments to the interlocutory nature of

the proceedings from which you wish to appeal.

MR PAULING:  I take Your Honour to mean why it is that

the -

DEANE J:  Why it is convenient to grant leave now in a

context where, if the appeal to the Full Court goes

ahead, the question could become academic.

MR PAULING:  Your Honours, firstly, if leave were granted

and the appeal were successful and the decision in

Beaudesert were set aside, that would conclude the proceedings altogether.

DEANE J:  I was not suggesting the appeal would be academic.

McHUGH J: There is a notice of contention on.

MR PAULING:  I appreciate that. I did not make myself

clear, Your Honour, and	I apologize.	What I meant
to say was, as is said	in the affidavit in support

of the application for	special leave, that would
complete the appeal as	far as the applicants are
concerned.

McHUGH J: It would, no doubt, but on the other hand the

matter could be disposed of in the Court of Appeal

without troubling this Court, because you have

grounds 2 and 3 in which you challenge the question

of authority.

MR PAULING:	Yes, that is true, Your Honour.
McHUGH J:	Why should that issue not be determined first?

If you succeed on that, that is the end of the

Beaudesert point, and the Court of Appeal would

then deal with the respondents' notice of

contention and cross appeal.

Mengel 2 12/11/92

MR PAULING:  I suppose the answer to the question is whether

the Court of Appeal might dispose of the Beaudesert

point; they cannot dispose of Beaudesert. Really

we came here to say it is a matter of such

importance in terms of the development of the law

of tort that this anomaly be put aside, that - - -

McHUGH J: There are a lot of very interesting questions

running around out there in the real world, to use

Mr Castan's phrase in the previous case, but we

cannot be lifting them up here to be deciding them

as abstract questions.

MR PAULING: It is not an abstract question, with respect,

Your Honour.

McHUGH J:  It is abstract in the sense that it may not be

necessary to decide it.

MR PAULING:	I cannot gainsay that, Your Honour.
McHUGH J:	The point may never arise, because you get up on

the lawful authority point and that is the end of

it. Then on the other hand, it is possible, I

suppose, that your opponent might get up on his

notice of contention, which makes it academic

anyway.

MR PAULING:  Yes, except that - it makes that point

academic, yes. I mean, I cannot improve on the

point by repetition, Your Honour.

McHUGH J:  I must say what troubles me is that there seems

to me to be some force in your argument on the

authority point.

MR PAULING: Well, that is a view we have as well,

Your Honour, but it seemed to us, at a time when

there was no notice of contention, that to be able

to sweep away the whole matter of the appeal by

appeal. Certainly if we are unable to distinguish	having this Court reconsider Beaudesert, had great	Beaudesert or unable to demonstrate an error by
His Honour in finding that the giving of the notice
lacked authority, then we eventually have to come to this Court to say either that the
Court of Appeal was wrong on those last mentioned
issues, but more particularly that Beaudesert
should be put aside as a principle in any event.

McHUGH J: If we grant leave, the parties are going to be

put to the expense of arguing the Beaudesert point

in this Court and it is not going to complete the

Court of Appeal proceedings, in any event, and if

you get up on the authority point, then the parties

are saved the expense of arguing Beaudesert here,

Mengel 3 12/11/92

which might be a day or a day and a half argument;

certainly a day's argument.

MR PAULING: Well, most of the day, we would suggest, but I

suppose another thing is that, in the event that

leave was granted and we were successful here, then

the appeal would be completely reconstituted with

the present respondents being dux litis, and having

the task of successfully arguing their grounds.

But, as I say Your Honours, it is a short point, a

simple point, and it is a matter for this Court to

decide whether the point ought to be plucked out of

the real world and disposed of by this Court.	It
may be that the fact that only one judge in 25

years has actually applied the principle, might suggest to other litigants that it has not been revived or worked over by the Chief Justice of the

Northern Territory, so it is back to full vitality

and it might continue to be ignored.

DEANE J: Well, perhaps one should not say, but he may have

been the only person who understood the principle.

MR PAULING:  I make no comment, Your Honour. But as I say,

that is the point; I cannot improve on it by

elaboration.	We say the Court ought to seize on
it.

DEANE J: Thank you, Mr Solicitor. Mr Conti.

MR CONTI:	Your Honours, in addition to the circumstance that my client is already put to the cost of an
appeal which may be unnecessary, is the further circumstance that the issues on our notice of
contention before the Court of Appeal involve a
number of contentious inferences as to purpose, motive, et cetera, going to another tort which is
part of the same genus as Beaudesert, and that is
the tort of misfeasance in office. And we submit
that it would be wrong for this Court to, without
the benefit of the findings of the Court of Appeal
in relation to those challenges - and there are a
number of them that I can refer to in a moment -
without the benefit of that, this Court would be determining the Beaudesert matter on the hypothesis of the facts as found by Mr Justice Asche, and yet the debate below in the Court of Appeal on the
issue of misfeasance in office would proceed upon
the way on which the Court of Appeal would find the very real inferences come up there for
consideration. So, Your Honours, we would submit
that the convenient course is for those matters to
be dealt with together.

Your Honours, in the area of interference with

business or trade affairs, there is a genus of at

least four actions. There are the two here under

Mengel 4 12/11/92

consideration, and there are others as well, such

as the tort of intimidation. And if the limits are

going to be defined for the purposes of working out

whether Beaudesert stands or whether it has to be

reformulated as has been urged upon the court in
the present contentions - if one is going to define

the outer limits, then one really has to look at

the other torts as well. What is more convenient

than to deal with those matters together if they

have to be dealt with together because otherwise,

as I say, there is going to arise this problem of

looking at different sets of facts at different

levels. Your Honours, it would certainly

enliven.- - -

DEANE J:  Mr Conti, we might hear what the Solicitor has to

say to what you have said so far.	Mr Solicitor, is
there anything you want to say in	reply to what has
been - - -

MR PAULING:  Only this, that the torts that my learned

friend puts in the same genus as Beaudesert, for

example, intimidation in Roooks v Barnard and what

followed on from that, have been well worked in

other contexts. It is our submission and, indeed,

the matters we refer to and the criticisms we refer

to is that Beaudesert stands alone, and to dispose

of Beaudesert does not have the effect of

unsettling the law in any other respect. The

development of a law in relation to abuse of office

is not dependent upon whether Beaudesert stands or

falls, and it would be quite unaffected by it,

which is why in our outline we referred to The

Commonwealth v Hospital Contribution Fund, a

decision of Chief Justice Gibbs, which was applied

by this Court in John v Federal Commissioner of

Taxation.

I have just given a note to it, but there were

four principles set out that could be applied, one

of which was that the disposal of the matter would	not unsettle the law in any other respect, and that
is the case with Beaudesert. Intimidation and
abuse of office would not be affected at all by its
rejection; so that I merely answer what my learned
friend has put on that point. But I cannot answer the question as to whether or not the Court of
Appeal needs to work through the inferences drawn from the evidence by His Honour the Chief Justice
and thereby come to its own conclusions. I do not
know the answer to that question, although the
grounds of contention are certainly wide and
numerous and refer to inferences to be drawn. So
for the purposes of argument I will assume that to
be the case. All I can say is that Beaudesert
stands alone and those matters will be agitated, in
any event, otherwise.

Mengel	12/11/92
DEANE J:	The Court is of the view that, in all the

circumstances, it would be inappropriate to grant

special leave to appeal at this stage of the

proceedings. Accordingly the application for

special leave is refused.

MR CONTI:  It is a bad season in the Territory. My client

would like an order for costs very earnestly.

DEANE J:	Mr Solicitor?
MR PAULING:	I cannot resist it, Your Honour.
DEANE J:	The application is refused with costs.

AT 12.45 PM THE MATTER WAS ADJOURNED SINE DIE

Mengel 6 12/11/92