O'Sullivan v Barker J A Judge of the Federal Court of Australia & Ors

[2017] HCATrans 222

[2017] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P38 of 2017

B e t w e e n -

MICHAEL O’SULLIVAN

Plaintiff

and

BARKER J A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

First Defendant

McKERRACHER J A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Second Defendant

P&O MARITIME SERVICES PTY LTD

Third Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 3 NOVEMBER 2017, AT 11.30 AM

Copyright in the High Court of Australia

MR O’SULLIVAN appeared in person.

HER HONOUR:   Thank you.  I have your application for an order to show cause in front of me.

MR O’SULLIVAN:   Yes, Ma’am, that is correct.

HER HONOUR:   I have read both your affidavit that you filed in August of this year as well as your outline of submissions and your summons.

MR O’SULLIVAN:   Yes, Ma’am, that is correct.

HER HONOUR:   Is there anything else you wish to say other than what is set out in your submissions?

MR O’SULLIVAN:   I would like to just say that I am applying today to get both of these decisions set aside as section 44 of the Administrative Appeals Act limits any right to appeal on a question of law from a decision of the Tribunal.

HER HONOUR:   Yes.

MR O’SULLIVAN:   I am asking the Court today to set the two decisions aside from his Honour Justice Barker and his Honour Justice McKerracher.

HER HONOUR:   Okay.  I think Justices McKerracher and Barker might have explained this to you before so if you have heard this before then I apologise but I think it is important that I explain it to you.  The reason why they refused your application is because the question about your entitlement to claim against P&O has not been finally determined and is still to be heard by the Administrative Appeals Tribunal.  So what they did was, as I read the file, decide a preliminary question, not the final question.  So you can still go back to the Tribunal even now and prove to the Tribunal that your injury is not a fresh injury but an injury which exists as a result of your employment with P&O first time round.  That is still a live issue before the Tribunal.  Do you understand that?

MR O’SULLIVAN:   Yes, I do understand that, Ma’am.  The whole point of the question is whether Justices McKerracher and Barker had any jurisdiction whatsoever to even entertain the appeal.

HER HONOUR:   I understand that.

MR O’SULLIVAN:   There are 29 decisions – 29 points that Justice McKerracher made without having the file in front of him.  He has more or less just agreed with the Tribunal and that has highly prejudiced my case when I go back to the Tribunal.  What I am saying is he never had any jurisdiction in the first place because section 44 – it was not a proper question of law.

HER HONOUR:   All right.

MR O’SULLIVAN:   It was only a half decision.

HER HONOUR:   All right.

MR O’SULLIVAN:   So that leaves him without no jurisdiction.  He made orders – on the 29th he made orders that the respondents put in further submissions.  Without jurisdiction, you cannot make orders.  I think I have seen that somewhere as a warning to judges on the High Court website – do not make orders if you have not got the jurisdiction.  So, what I am saying is he had no jurisdiction in the first place.  The 29 points that he has made in his decision are highly prejudicial to my case.  It is just agreeing with the Tribunal.  He had no authority to make them 29 decisions because he never had the file in front of him.  So I do not think he had jurisdiction.

HER HONOUR:   All right.  I have read your submissions. 

MR O’SULLIVAN:   Thank you, Ma’am.

HER HONOUR:   Is there anything else you wish to say to me?

MR O’SULLIVAN:   I think I will leave it at that for the time being, Ma’am.

HER HONOUR:   All right, thank you very much.

MR O’SULLIVAN:   I will let you make your decision.

HER HONOUR:   All right.  Well, what I propose to do is to go away and think about the matter and I will publish a little judgment or a judgment which will address the matters that you have raised and consider your application and you will be notified when that judgment is going to be handed down but it will be not necessary for you to appear.  Do you understand?

MR O’SULLIVAN:   Yes, Ma’am.

HER HONOUR:   Thank you very much.

MR O’SULLIVAN:   I would like to say one more point if I can.

HER HONOUR:   Yes, please.

MR O’SULLIVAN:   Now, in Justice McKerracher’s decision, in paragraph 23 of that decision ‑ ‑ ‑

HER HONOUR:   Yes.

MR O’SULLIVAN:   ‑ ‑ ‑ he relates to a paragraph that says ‑ I will just try and find that ‑ ‑ ‑

HER HONOUR:   This is where he sets out your grounds, your submissions.  Is that the paragraph you want me to look at?

MR O’SULLIVAN:   Yes.

HER HONOUR:   Yes.

MR O’SULLIVAN:   Now, it says something along the lines of whether it is feasible to eat fish for lunch today or something - something along them lines and I have replied something about the chicken and the egg or something like that.  I have not got it in front of me.

HER HONOUR:   I have read that.  No, I have it, I have that paragraph.

MR O’SULLIVAN:   Okay.  Well that - whether it is feasible to eat fish for lunch that day or whatever that says, that is not my original saying.  That comes from a case that was quoted in the respondents’ submissions and it is from Palassis v Commissioner of Taxation.  Now, I replied to the respondents’ submissions and that case that they quoted in the respondents’ submissions.  Now, I only replied to that on the basis of what was written in Palassis v the Commissioner of Taxation.  Now, the McKerracher ‑ ‑ ‑

HER HONOUR:   Do you mean Haritos‑ sorry Mr O’Sullivan – I just want to make sure.  Are you referring to Haritos v Federal Commissioner of Taxation?

MR O’SULLIVAN:   No, Ma’am.  I am referring to Palassis v the Commissioner of Taxation.

HER HONOUR:   Do you have a citation there you can give me?

MR O’SULLIVAN:   Justice McKerracher done that case.  The citation is BC201108697.

HER HONOUR:   Does it have a medium neutral number.  Does it have a year, an FCA number?  Usually under the heading of the names of the parties, it will have a number.  What year is it?

MR O’SULLIVAN:   It is WAD 46 of 2011.

HER HONOUR:   Yes.

MR O’SULLIVAN:   WAD 47 of 2011, 48 - it is 8 June; 15 November 2011 - Palassis v Commissioner of Taxation.

HER HONOUR:   It is all right.  I will look it up.  Thank you very much.

MR O’SULLIVAN:   What I am trying to say, Ma’am, is that that original  saying is from the McKerracher decision and I have only replied to the submissions and he has written into that decision on paragraph…..of that decision, he does not refer to Palassis.  It is not…...  I am not the author of that and it makes me look a bit silly.

HER HONOUR:   All right.  I understand the submission.

MR O’SULLIVAN:   …..put that case but cited in that case on that decision.

HER HONOUR:   Thank you.

MR O’SULLIVAN:   It should be – thank you, Ma’am, I think you understand what I am talking about.

HER HONOUR:   I do.  I understand completely.  Anything else, sir?

MR O’SULLIVAN:   Thank you very much.

HER HONOUR:   Is there anything else you wish to put to me?

MR O’SULLIVAN:   No, I think I will leave that to you, Ma’am, for your decision and what you think.

HER HONOUR:   All right.  So what I said to you before will stand, that is, I will go away and think about it and I will write a judgment.

MR O’SULLIVAN:   Yes.

HER HONOUR:   You will be notified when that judgment will be handed down but it will not be necessary for you to appear.  A copy of the judgment will be sent to you.

MR O’SULLIVAN:   Would we have any timeframe, Ma’am, with regards to that?

HER HONOUR:   I do not know the answer to that but it would not be very long.  So it just depends upon my other workload but the Court staff will notify you as soon as it is to be handed down.

MR O’SULLIVAN:   Thank you, Ma’am, and I would like you to take into regard that these two decisions are highly prejudicial to my case when it refers back to the Tribunal and that is why I am asking for them to be set aside.

HER HONOUR:   Thank you very much.  Adjourn the Court.

MR O’SULLIVAN:   Thank you.

AT 11.40 AM THE MATTER WAS CONCLUDED