O'Toole v Charles David Pty Limited

[1989] HCATrans 236

...

.

• 'JA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl20 of 1989

B e t w e e n -

JACK O'TOOLE

Applicant

and

CHARLES DAVID PTY LIMITED

Respondent

Ex parte -

THE ATTORNEY-GENERAL FOR THE COMMONWEALT

Application to remove a cause pursuant to section 40(1) of the Judiciary Act

Office of the Registry

Sydney No Sll5 of 1989

B e t w e e n -

JACK O'TOOLE

Applicant

and

CHARLES DAVID PTY LIMITED

O'Toole

Respondent

Application to remove a cause pursuant to section 40(1) of the Judiciary Act

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 1989, AT 9.36 AM

Copyright in the High Court of Australia

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MR A. ROBERTSON:  Your Honours, in matter 120, I appear

with my learned friend, MRS P. SHARP, for the

Attorney-General for the Conunonwealth.

(instructed by the Australian Government Solicitor)

MR K.R. HANDLEY, QC:  Your Honours, in the second matter,

I appear with my learned friend, MR W.R. HAYLEN, for

Mr O'Toole, the applicant. (instructed by

Maurice May & Co)

MR R.J. ELLICOTT, QC:  Your Honours, I appear with

MR M. COCKBURN, for the respondent, Charles David.

(instructed by Michie Shehadie & Co)

MASON CJ:	Mr Robertson?
MR ROBERTSON:	Your Honours, there is a notice of motion dated

11 October 1989 seeking an order that the cause

in proceedings No. 121 of 1987 pending in the

Federal Court be removed into this Court pursuant

to section 40. Do Your Honours not have - - -

MASON CJ:  No, we do not. We have been informed that an

application has been made but we do not have it in

the papers that have been presented to us, Mr Robertson.

MR ROBERTSON:  May I hand to the Court one cop½ for the time

being, of the notice of motion and the affidavit in

support?

MR ELLICOTT:	Would Your Honours like another copy - - -
MASON CJ:	Yes, that would be very helpful, Mr Ellicott.
MR ELLICOTT:	I coµld give Your-Honours-mine but it is heavily

underscored.

MR ROBERTSON:  I have managed to extract a third, as well,

Your Honour.

MASON CJ:	Thank you.
MR ROBERTSON:	So, Your Honours, the order sought is that

the cause in proceedings No 121 be removed pursuant

to section 4U(l) ot the JUDICIARY ACT on the ground
that the cause arises under the CONSTITUTION or

involves its interpretation and the second page of
the notice of motion sets out the grounds and there is

an affidavit in support of the notice of motion sworn

by Concetta Anna Fierravanti on 11 October 1989 which

refers to the affidavit of Faye Robinson in the other

application.

MASON CJ:  Yes. Now, what is the attitude of the other

parties to this applica~ion?

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MR ROBERTSON:  I understand that the applicant in the other

matter agrees.

MASON CJ:	Agrees, yes, and what about Mr Ellicott?
MR ELLICOTT:	Your Honour, we do perceive some difficulties.

Would Your Honour like to hear those?

MASON CJ:  Yes, well, I think it might be convenient if we

heard about the difficulties first.

MR ELLICOTT:  Well, very quickly, under section 40, the

Attorney-General exercises the right but the

affidavit does not ask that the whole matter goes

into the High Court, it asks that the special case

goes into the High Court.

MASON CJ:	Yes.
MR ELLICOTT:	That appears to be, first of all, what the

Attorney-General has decided. If there is some other document or determination, then my friends can

produce it but, if that is so, then the application

must be limited to the removal of the special case.

Now, if the application is to proceed as my friend,

I assume he has got instructions in relation to it,

that the whole of it comes into the High Court, then

the questions in the stated case that were answered by
the Federal Court then become irrelevant to this

Court because this Court has jurisdiction under

section 30a of the JUDICIARY ACT in relation to the

interpretation of the CONSTITUTION and it is quite

clear that section 60 of the CONCILIATION AND

ARBITRATION ACT is not binding on this Court. So

that, once the whole matter is removed, this Court

has jurisdiction in relation to it, there is no

problem about that, and at that point the whole

question as before the Federal Court must, we would

submit, disappear. In those circumstances, the only
type of order that this Court should consider is

one that removes the special case into this Court but

if it does, the Federal Court has already made a

decision on it.

MASON CJ:  But, the orders have not been taken out, have they,

Mr Ellicott?

MR ELLICOTT:	They have not been taken out.
MASON CJ:	Well, does that not permit this Court to proceed to answer the questions and substitute its answer
for the answers given - - -
MR ELLICOTT:	Well, that is the question that this Court obviously will determine but it does seem odd that
the procedure is such that parties can wait until the

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Federal Court gives judgment, answers the
questions; all it has to do is to enter judgment;

the cause is removed but the situation remains the

same, the questions have been answered, is the

function of this Court any more than to record a

judgment in this Court in accordance with those

answers. Now, that only begs the question as to what

is the appropriate procedure. If there is any

substance in what I just put to the Court, if the

Court does not agree with it and I am not going to

labour it, they did something similar to this in

SMITH V SMITH, I think - - -

MASON CJ:	Yes, well, that is what we had in mind.
MR ELLICOTT:	- - - and whether this point was raised with the Court, I do not know, it does not appear in the -
MASON CJ:	Well, if you look at the transcript of the special

leave application, I think it is apparent that in

SMITH V SMITH, the difficulty was present to the

mind of the Court.

MR ELLICOTT:  Yes. Well, if the Court, in effect, in

SMITH V SMITH has decided it, then the Court may see

fit to do the same thing here but it does appear, we

would submit, to be an inconvenient procedure,

particularly to interfere with the process in the

Federal Court, where the Federal Court is as a

result of decisions of this Court amenable to the

prerogative writ, and if the Federal Court goes

astray, the prerogative writ, under section 75(v)

of the CONSTITUTION will lie and when the Federal

Court exercises its jurisdiction in accordance with

those answers and gives a decision, which is final,

or reaches the stage which is appropriate for

prohibition, and maybe its the beginning where they

start to exercise that jurisdiction, then is

the time for the procedure to operate to bring the

matter to this Court to be decided in the appropriate

way. But, if Your Honours feel that the section 40

method is the appropriate method, then so be it but,

I would submit, having regard to the role of the

Federal Court, this Court should not encourage this

sort of application. I am talking now about the

party application - I cannot say anything about the

Attorney-General; he has got a mandatory power under

section 40 - but going back to the first point, he
brings the whole thing in, then that destroys the

object of the exercise, in our submission.

MASON CJ:  Yes, Mr Robertson, what do you say to

Mr Ellicott's objections?

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MR ROBERTSON:  Your Honours, may I - we apprehended that

my learned friend, Mr Ellicott, would be making

submissions along those line - hand to the Court

a one page document which sets out the contentions

that we would put in relation to the section 40

question. Paragraphs 1 and 2 do not matter except

to distinguish this case from the sort of difficulty
that appeared in the SWISS ALUMINIUM matter

which was really a matter of whether or not the

order that had been made answered the description

of section 73 of the CONSTITUTION, so if I could

ask Your Honours to perhaps pass over paragraphs 1

and 2. And then, paragraph 3 sets out what, in our

submission, the only questions are and I apprehend

that 3 (a) is noti an issue and, therefore, the

remaining question is whether what is sought to be

done answers the description of the cause pending

in the Federal Court at any stage of the proceedings
before final judgment. And then, we say, contrary
to the position in FISHER V FISHER, which

Your Honours may recall, in this case there has been no order of the Full Court entered and neither has

there been any order remitting the matter to a single

judge of the Federal Court. I do have copies of

FISHER V FISHER, if Your Honours would like to look

at the relevant parts.

MASON CJ:	Yes, would you hand that up, Mr Robertson?
MR ROBERTSON:	I might also hand up, as well, the relevant

pages of the STATE BANK case which I will refer to

will see from page 439, the stage which the

shortly. If Your Honours go to the judgment in

proceedings had reached; that is, there was a special

case under section 94A of the FAMILY LAW ACT and

the Full Court of the Federal Court had:

determined that section 79(8) was a valid

law of the Conn:nonwealth, and remitted the

matter ..... The husband appealed to the High Court and later ..... applied under section 40 of the JUDICIARY ACT.

And His Honour the Chief Justice, at pages 450 and 451, towards the foot of page 450, said:

Section 40 of the JUDICIARY ACT however

empowers this Court to make an order for

the removal of the cause into this Court.

Had a removal been effected before the

Full Court of the Family Court had given

its decision there would have been no

difficulty. This Court could then have

proceeded to answer the questions raised

by the special case if it had considered

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it appropriate to do so. However

if the Full Court of the Family Court had given its decision and ordered a remitter to the trial judge and, after removal,

this Court had taken a different view of
the matter from that taken by the Full

Court, there would have been technical

difficulties in dealing with the matter.

Obviously this Court would not have proceeded to determine the application on

its merits, and since there was no valid

invocation of its appellate jurisdiction it

is difficult to see how it could have
interfered with the Full Court's answers.

Fortunately that question does not arise for decision. Since this Court is in

agreement with the answers of the Full Court, the order for removal should be

refused.

So, Your Honours, we submit that in contradistinction

to FISHER V FISHER, in this case, first there has

been no order entered under order 36 of the Federal

Court Rules and so much appears from the affidavit

in matter -~9 115, paragraph 9 of that affidavit at

page 5 of triati application book, the deponent,

Faye Leone Robinson, sayd that:

On 13 September 1989, in an application made

by the present Applicant to Mr Justice Gummow,

the Respondent company by its counsel gave

an undertaking to the Federal Court not to
take any steps to enter the Orders made by the

Full Court of that Court on the hearing of

the Stated Case, until it had given certain

notice to the Applicant. The said Order has

not yet been settled and entered.

minutes ago when my learned friend, Mr Ellicott, was

And, I understand, that was the evidence that

putting his submissions about the finality of the
.	order of the Federal Court. And then, in paragraph 5,

we submit that there has not been any action dismissed

by a valid curial order. There again, in
contradistinction to the position in the STATE BANK case,

160 CLR 315, at page 324 the Court, having considered

the question of section 40 as conferring original

jurisdiction on the High Court under section 76(i)

of the CONSTITUTION, Your Honour, at about point 8

of the page said that: 

The consequence is that section 40 makes

provision for the removal of any '"'Xtc>.nt

judicial proceedings including an appeal.

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However, the section does not enable the

Court to remove an original action which

stands dismissed by a valid curial order unless and until that order is set aside

on appeal or, where appropriate, by other

process, such as a prerogative writ.

There, Mr Justice Clarke had made an order dismissing

the original action; that has not happened here.

Thus, we submit, that there is an original action

capable of being removed and there could be no

conflict between two valid court orders, were this

Court to disagree with the answers of the Federal

Court and then we remind the Court that the present

course was that taken in SMITH V SMITH, where the

cause was removed before any order of the Family Court

of Australia.

MASON CJ:  It is very unsatisfactory, is it not, that the effective

jurisdiction of this Court should depend on whether

or not a party has succeeded in taking out a formal

order in the court below?

MR ROBERTSON:  It certainly has to be described as a

technicality, Your Honour, but the alternative, as

we would see it, would be to wait until the matter

goes back before the trial judge and then either
sooner or later, when the trial judge applies the

answers given to the case stated, then the matter

would come back to this Court.

MASON CJ:  Oh yes, it would, but what I had in mind was this:

there would be nothing, I suppose, to stop the court

below entering a formal order after an application

for removal had been taken out but not determined by

this Court.

MR ROBERTSON:  There would be nothing to prevent it in the

general case, Your Honour. In this case, of course, there is the tmdertaking referred to in paragraph 9

of Miss. Robinson's affidavit so that, in this

partiuclar case in any event, Your Honours, we would

see that as not being likely to occur in any event.

DEANE J:  If it is removed, would it not then be a matter

very much in the discretion of the Court whether it

should reopen the proceedings at the stage reached

in the court below? I mean, if it is removed at the

stage of questions answered, it is not apparent to

me that as a matter of course the Court would, as it

were, 111.manswer" the questions as distinct from

dealing with the question, whether the questions

having been answered by the court to which they were

referred, a formal order should be entered.

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MR ROBERTSON:  Yes, well, what the Attorney-General

seeking the removal would, of course, ask the Court

to do would be, if it disagreed with the answers
that the Full Court had given, that then it would

indicate in what respect it disagreed with them.

DEANE J:  I follow that, but what I was putting to you was,

would it not be a matter for the Court as to whether

a removal having occurred at this stage, it should

go back to the beginning or whether it should simply

deal with the outstanding matter, that is order that

the order be taken out?

MR ROBERTSON:  It might be a matter of discretion, Your Honour.

The purpose of removing the whole cause is, in my submission, to give to this Court the greatest

flexibility in dealing with the process. It would

not be contended on behalf of the Attorney that the

Court should deal with the whole matter but that it

being in the Court then the Court could take the

course that seemed most appropriate and then, were

there any outstanding matters to be resolved, the

Court might then remit the matter under

section 42 of the JUDICIARY ACT for, if necessary,

Your Honours.

further steps to be taken in accordance with the put,

MASON CJ:	Yes, thank you, Mr Robertson. Yes, Mr Handley?
MR HANDLEY:	Your Honours, while there are strange aspects of this procedure, it nevertheless, in our
submission, is a convenient one as far as this
Court is concerned.  The alternative will be, in
view of the difficulty of getting special leave to
appeal from the orders of a Federal Court, either the Federal Court or the Family Court where
constitutional and other important questions are the subject of a stated case to a Full Court, that
removal will come at an earlier point of time either by the Attorney, which gives the Court no practical discretion to reject the removal application, and this Court will entertain
jurisdiction at first instance without the benefit
of the decisions of the court below which were available in SMITH's case and are available in this case. And, in this particular case, not that it in
any way binds the Court, consideration was given to
a removal application before the hearing in the
Full Federal Court and it was decided that that course would not be followed. And, as the Court
knows in view of SWISS ALUMINIUM and other cases, we
cannot get direct from the Full Federal Court to
this Court in any other way exc8pt in the way that
is before Your Honours this morning. The matter then
goes back to Mr Justice Gray.  Now, this Court in

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FISHER V FISHER took the view that if it could not

exercise appellate authority over the orders of

the Full Family Court in FISHER, it was bound by

them. Now, I would respectfully submit that that

took too narrow a view of the Court's liberty to

interfere in ultimate proceedings with an

interlocutory order albeit one in a stated case

but there are the dicta in FISHER which indicates

that if you cannot get from the Full Family Court

or the Full Federal Court on a hearing of a stated

case up to this Court, then the subsequent

proceedings before a judge of the Family Court of

the Federal Court, he, of course, is bound by the

answers on the stated case and that this Court cannot

later interfere or review the orders on that

stated case. Now, the questions on that stated

case, we would submit that that is wrong, and that if

the matter came back before the Court on appeal or

prohibition, the Court could take a different view

from that taken in the Full Court on the stated

case but there is still the problem that unless

and until that view in FISHER is rejected, that there

are problems about going back.

MASON CJ: 

Well, Mr Handley, that gives perhaps added force

to what I was going to suggest, namely, that the
matter should, perhaps, be removed on the footing
that this question is left open for decision by the
Full Court when it comes to hear the case in its

removed state. It is rather difficult for the Court

constituted as it is today to deal with these

questions; that is to deal with questions which

unquestionably are of importance and may have the

effect of binding the entire Court by any decision

given today.

MR HANDLEY: 

Yes, well needless to say, we would not wish to

be heard against that. I did come along equipped

with some copies of the case of RE HARRISON SETTLEMENT,
where after CHAPMAN V CHAPMAN had come down from

the House of Lords, a judge in the chancery division

recalled orders that he had made approving a

variation of the beneficial entitlements under

settlements and the question of his power to do that

was challenged in the Court of Appeal and there are

statements there which indicate - and I will not hand

them up unless Your Honours wish to look at them - but

three judges in the English Court of Appeal said:

It is important to remember that in the ordinary way the recall of an unperfected order results in a rehearing at which all

parties may present such further arguments

as they may be advised with regard to the

matter.

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And so, if this matter does come before this Court

on removal before the Federal Court order has been

passed and entered, then the matter can be

reheard de novo in accordance with ordinary principle.

MASON CJ:  Yes, Mr Handley. Now if the Court were minded

to order removal on the Attorney-General's

application, that would be satisfactory from your

point of view without any disposition of your

application as it stands?

:MR HANDLEY:  Yes. Your Honour, I just wonder whether it is

convenient to remove the award enforcement

proceedings from Mr Justice Gray or whether it is

not more convenient either to remove both or to

remove the stated case? The stated case, of course,

contains findings of facts albeit they were made by

consent and, as it were, sets the stage for the

questions, if this Court were to remove the cause,

that is the underlying proceeding under section 119

of the CONCILIATION AND ARBITRATION ACT for enforcement
of the award, we would have to state the case all

over again with some risk of delay and expense,

whereas we have gone through this exercise in the

Federal Court and the stated case is there and there

were no problems with it in the Full Federal Court.

And, secondly, I would suggest that the sort of

considerations that Mr Ellicott mentioned might make

it inconvenient to remove the whole cause and make it

preferable to remove the stated case. We would take

a different view to Mr Ellicott about the effect of

these sections on this Court if this Court were

hearing the award enforcement proceedings. If, in

its diversity jursidiction, it was asked to enforce

an award between residents of different States,

in my submission, it would be bound by section 60

just like the Federal Court or an inferior court of

State jurisdiction. But, that is perhaps one

complication which the Court should be spared and it

would be spared if the stated case was removed and

not the underlying cause. If the Court pleases.

MASON CJ:	Mr Robertson, before I give Mr Ellicott the opportunity of responding, do you want to say anything- about the last point that Mr Handley made
as to the subject-matter of the removal?
:MR ROBERTSON:	No, I do not wish to add anything to what I

said before, Your Honours, which was merely that to

remove the whole gave the greatest flexibility with

the disposition of parts of it if there were

outstanding parts, Your Honurs.

MASON CJ:  Yes. Now, Mr Ellicott, perhaps we ought to offer

you the opportunity of responding seeing you were

called on out of order in the first place.

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MR ELLICOTT:  Your Honour, Mr Robertson did not really answer

the matter that I had put to the Court and that was
that once you remove the whole, because this Court

has jurisdiction, any question of the Federal Court's

jurisdiction because of section 60 disappears.

But, if he wants to do that, I guess that is ~11 ~ight

by my client because we will have the matter dealt

with in this Court and this Court has jurisdiction

and a nice question would then arise as to whether

this Court would have to sit down and deal with the

substantive- issues of fact or whether it could, as a matter of power, remit it back to the Federal Court whilst retaining the High Court's jurisdiction to

deal with it; it is a very complex area. But, my

friend can only act on his instructions, his

instructions are to remove the whole; the

Attorney-General has got to make up his mind. If

he is going to remove the whole, that is what the

Court will respond to. Well, if the Court is going

to do that, it can lift it up into the High Court
and reserve these questions and that is the cours~

if you are going to take a course, that we would

prefer. If you are going to- go into the question of

discretion, then we would say the Court has, with

respect, very good reasons for saying, "Go away,

come again another day because irmnediately the
matter comes up before Mr Justice Gray in answer to
those questions, you would be able to prohibit and
if you are right that the Full Court is wrong, the

issue will then come to the High Court".

It is an issue that ought to be determined

ultimately by this Court as to the jurisdiction of

the Federal Court. It is an important question but

we would submit that this is not the way to deal with

it. And, we would like the question determined if

it is going to be a matter of argument. We do not

want to get caught up in technical intricacies - - -

MASON CJ:  I am sure you would not.

MR ELLICOTT:  - - - about the jurisdiction between the High

Court and the Federal Court.

MASON CJ:  You always want the simple answer free of

technical difficulties, Mr Ellicott. Yes, the Court

will make the order sought in the Attorney-General's

application.

MR ROBERTSON:	If Your Honour pleases.
MR HANDLEY:	Will Your Honour also remove the stated case in

our application?

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MASON CJ:  Well, Mr Handley, if we have removed the whole

proceeding, what is there left for us to do?

MR HANDLEY:  Your Honour, I just had the impression that

Your Honours may have removed - the stated case was stated by Mr Justice Gray to the Full Court and I am not sure that removing the underlying

cause has removed the stated case.

MASON CJ:  Well, we are removing the entirety of the

proceedings.

MR HANDLEY:	I see. If Your Honour ~leases.
MR ELLICOTT:	Could Your Honours reserve questions of costs?
MASON CJ:	Yes, costs will be reserved.

AT 10.06 AM THE MATTER WAS ADJOURNED SINE DIE

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