Page v Sydney Seaplanes Pty Ltd Trading As Sydney Seaplanes

[2022] HCATrans 70

[2022] HCATrans 070

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S160 of 2021

B e t w e e n -

ALEXANDER MATHEW BRODIE PAGE

Applicant

and

SYDNEY SEAPLANES PTY LTD TRADING AS SYDNEY SEAPLANES ABN 95112379629

Respondent

Application for special leave to appeal

KIEFEL CJ
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 13 APRIL 2022, AT 1.30 PM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR B.W. WALKER, SC appears with MR D.T.W. WONG for the applicant.  (instructed by Shine Lawyers)

MR D.A. LLOYD, SC appears with MS C.J. ROBERTSON for the respondent.  (instructed by GSG Legal)

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please, your Honours, as is readily apparent from the exchanged written arguments and the reasons of their Honours in the Court of Appeal, this case is to be seen as a striking but, nonetheless, orthodox example – so say the members of the Court of Appeal – of the necessary reading of enacted text, both contextually and purposively. 

As your Honours have seen, we do not suggest that any of their Honours’ reasons misstate the authorities, misconstrue the principle, or otherwise misdirect themselves as to that orthodoxy.  But in answer to what might then follow – which is, why would there be special leave in relation to the application to particular enacted text of what are understood principles – we say this.  There is, as a basal proposition – certainly most plainly thrown up by the then President’s reasons – a distinct tension, making the outcome remarkable, between the straightforward and literal reading of the ordinary language in legal statutory context which produced the outcome for which the judge at first instance concluded was correct. 

Could I take your Honours, please, to page 124 of the application book for the critical provisions of section 11 of the Federal Court ‑ ‑ ‑

EDELMAN J:   Just before you do, Mr Walker – and you may wish to come to this later – but do you say that your second ground in 3(b) adds anything to 3(a), particularly in light of the words “for all other purposes”?

MR WALKER: No. No, there is a double‑up by those very words, that is, there is a comprehensiveness syntactically conveyed which, in our submission, make our formulation for more abundant caution, but in terms of adding substantively to whatever merit there may be for the grant of special leave, no. Can I – as to section 11 of the statute, extracted at page 124 of the application book ‑ draw to your Honours’ attention the first of the definition provisions – I stress definition provisions – at the heart of the matter, and that is the expression “relevant order”.  It includes in paragraphs (a), (b), and (c) of the definition of “relevant order” in section 11(1), the repeated theme of the end of proceedings not on the merits but for want of jurisdiction or because there is no jurisdiction.

Now, we know that in very general terms that of course was the outcome constitutionally dictated by the argument which had produced the dilemma, or emergency, of which the legislative history, thoroughly narrated in the Court of Appeal, makes clear was the origin of the legislative exercise. 

The next definition is on the preceding page, this time in section 3, which is actually headed “Definitions”, and it in particular defines “State matter” as being one of the expressions used in each of the three possibilities for a relevant order to which I earlier drew attention.  “State matter” includes paragraphs (a), (b), and (c) and (d) which are different, one from the other. 

One can start with (d) at the outset because (d) was not a matter which was thrown up or rendered concrete by any of the constitutional argumentation which had produced the perceived national emergency by way of remedial legislation.  So, (d) already shows that the scope of the law reform intended by this turned‑out model provision was one that went beyond simply fixing the mischief identified in this Court. 

But the same may also be said of paragraph (a), which of course is in play in this case, leaving paragraphs (b) and (c) of (a), (b), (c) and (d) as those which define, that is, set limits or boundaries, by reference to the constitutional correction which the Court of Appeal has identified as a defining purpose of the whole legislation. 

Our point is, quite simply, that when the literal words are so straightforwardly in our favour, as the President, with respect, properly recognised, there is no role for a purposive use by way of defining or restricting that literal understanding when it can be seen in the fundamental and explicit definition provisions that describe the scope of the enactment by reference to paragraphs (a) and (d) for the expression “State matter”, that on any view – on any view – the remedial provisions extended beyond that which had been thrown up in the identified mischief.

Now, that means of course that this is a statute which by its enacted text does more than might have been regarded as politically necessary in order to address what this Court had identified as a misconception on the part of previous legislators.  But that would not be remarkable and certainly could not be fitted within any orthodox canon of interpretation so as to read down a statute to be only as expansive as an identified mischief would have it.  In particular ‑ ‑ ‑

EDELMAN J:   Mr Walker, it may depend upon the level of generality at which the mischief is identified.  If the mischief is identified as the decision in Re Wakim, that is a very specific mischief, but one might also identify a mischief at higher levels of generality such as a want of jurisdiction for constitutional reasons or, even higher, any want of jurisdiction.

MR WALKER:   Yes, exactly.  That is our point.  I wanted to make a contrast between paragraphs (a) and (c) in the definition of “State matter”.  I keep emphasising the word “definition” because, in our submission, great care should be essayed in suggesting that definition sections – which enact limits – if you like, describe scope – themselves easily understood in a so‑called remedial or purposive fashion - undoubtedly sometimes they were required to be, but in generality they are ‑ according to an understanding and contextual understanding of the words – words that set limits, or draw boundaries which are not to be moved around in order to meet some anterior assumption about the breadth of the ambition of the legislators.  Now paragraph (a) is, of course:

in which the Supreme Court has jurisdiction otherwise than by ‑

another polity’s enactment and, by default, that includes this case.  Paragraph (c) was the Re Wakim vice, namely a purported conferral of jurisdiction on a Federal Court by what is called a relevant State Act, itself defined with a possibility of expansion of the class in the earlier extracted provisions of section 3.

That very contrast between paragraph (a) and paragraph (c) shows, with respect, that the generality which is conveyed by the ordinary words – read contextually – of section 11(1), definition of “relevant order”, is that there is nothing to be added to the notion of “for want of jurisdiction” or “has no jurisdiction” or “has no jurisdiction” than the familiar meaning that those terms of art in legislative provisions concerning the availability of judicial power, and the allocation of judicial power, would have it. There is nothing to be added by way of subscript or qualification, in particular by reference to what was to the forefront of every draftman’s mind, namely the issues and reasoning in Re Wakim.

It is for those reasons, in our submission, that notwithstanding the great respect evoked by the learning and detail in the reasons in the Court of Appeal, there has been, in our submission, at least seriously arguably so, a misfire at the earliest point, namely, why go beyond the literal contextual meaning so as to cut back, in particular, the effect of definition provisions by reference to a mischief flowing from Re Wakim, when on any view of it there are definition provisions to which we have just drawn attention that show the enactment goes beyond the scope necessary to correct that supposed mischief. 

It is for those reasons, in our submission, that notwithstanding ‑ we do not point to misdirection – we do say this is one of these highly exceptional cases salutary to be considered and determined by this Court where the primacy – as I stress the primacy – of a contextual understanding of enacted texts can properly be seen to flow first in a sequence of consideration by a court of enacted texts to appreciate the ordinary meaning in context of the words.  Here, of course, the words are frequently words of definition, both setting limits and describing scope.  For those reasons, in our submission, this is a case exceptionally worthy of a grant of special leave.  May it please the Court.

KIEFEL CJ:   Yes, thank you Mr Walker.  Yes, Mr Lloyd. 

MR LLOYD:   May it please the Court.  Our learned friend, I think, accepts that the application – statement and application of principle by the Court of Appeal was unexceptional and orthodox.  The contention at paragraph 7 of our learned friend’s submissions at page 117 of the application book that perhaps might be thought to mean that there is some special principle of statutory construction where plain words require a departure, which – where plain words have the effect of ‑ or a departure from plain words have the effect of removing rights of substance appears not to be pressed as a matter of principle or attracting a grant of special leave. 

EDELMAN J: Mr Lloyd, there may be an interesting issue of principle involved, which is how statutory implications are to be identified because you would accept, would you not, that the Court of Appeal’s approach recognised a significant implication in section 11.

MR LLOYD:   Yes, your Honour.

EDELMAN J:   That implication could have been set at the level of just a want of jurisdiction for constitutional reasons or a want of jurisdiction for constitutional reasons of ineffective conferral of jurisdiction or even, at the narrowest level, as the President put it, a want of jurisdiction for constitutional reasons of the particular kind in Re Wakim.  How does one select that level of generality of the implication?

MR LLOYD:   By embarking on the process of statutory construction that his Honour the then President embarked upon by reference to the structure of the Act and the extrinsic materials, and may I go directly to that.  But perhaps before doing that, in answer to an observation which fell from your Honour Justice Edelman about the identification of the generality or the generality with which the mischief is identified, his Honour the President addressed this clearly at paragraph 53 of his reasons and this followed the conventional or orthodox process of statutory construction which I will take your Honours to.  But following that orthodox process of statutory construction, his Honour concluded at the bottom of page 73 that it was unavoidable that:

the defined term “relevant order” refers to a decision of the Federal Court “dismissing, striking out . . . for want of jurisdiction” –

the reference to want of jurisdiction being referred to – not any general want but rather a want of jurisdiction by a constitutionally invalid conferral of the kind addressed in Wakim.  That, in part, is derived from the words in the statute itself.  Our learned friend drew attention to the definition of “State matter” and focused, in particular, on subparagraphs (a) and (d).  But as Justice Leeming makes plain in his Honour’s reasons – and I do not need to take your Honours there presently, but it is at 104 to 106 – (a) in “State matter” followed very closely the definition of “State matter” in the cross‑vesting Act. 

Subparagraph (b) in “State matter” in the State Jurisdiction Act, followed very closely the effect of (b) in the definition of “State matter” in the cross‑vesting Act.  Subparagraph (c) deals with the purported conferral of jurisdiction on the Federal Court by a relevant State Act and (d) deals with a different concept, but, plainly related to this Court’s decision in Re Wakim, applied administrative laws are defined in section 3, meaning laws of the State applying a Commonwealth administrative law as a law of the State.

So, one of the matters, to which I will come, that his Honour, the then President, placed weight – as did Justice Leeming – was that when one comes to the definition of “State matter”, plainly what the legislature was directing itself at was the terms of that definition in the cross‑vesting Act which was rendered constitutionally invalid by this Court’s decision in Re Wakim.

But there are other matters though that informed his Honour’s ultimate conclusion that I have taken your Honours to at paragraph 53.  The first of those was at paragraph 43 of his Honour’s reasons, and that is the explicit statement of purpose in section 1(2) of the State Jurisdiction Act, namely ‑ ‑ ‑

EDELMAN J:  Mr Lloyd, what do you say about the generality of that statement of purpose which is not a statement of purpose that mentions Re Wakim or is confined to Re Wakim? 

MR LLOYD:   What I say about that is that if that was the only provision within the statute and there were no other extrinsic materials, that would be insufficient to support his Honour’s ultimate conclusion about the particularly clear light that is shed about the particular legislative purpose.  Of itself, it would not be sufficient but, in combination with the other matters, it has assumed some relevance.

The next of those matters being what the President said in paragraphs 44 and 45 - there are two concepts in those two paragraphs.  The first…..of the Act plainly suggesting that the Act is to deal with ineffective conferral of jurisdiction – and just pausing there – that is really the central reasoning of his Honour, the then President, is this is an act dealing with:

“ineffective conferral of jurisdiction” –

and the consequences of that occurring.  His Honour deals with the long title but then, in paragraph 45, goes on to deal appropriately – as it is accepted – with the historical context – that is, the “ineffective conferral of jurisdiction”, plainly, must be a reference – including as to the timing of the legislation to this Court’s decision in Re Wakim.

The next matter that his Honour refers to, paragraph 47, was the statement by this Court in – or the majority in the opening sentence of the decision in Residual Assco v Spalvins introduced to remedy some of the effects of the decision in Re Wakim.  Section 4(1) is referred to by his Honour at paragraph 48 and there his Honour draws attention to – within that definition about the meaning of ineffective judgments, the words:

in the purported exercise of jurisdiction purporting to have been conferred on the federal court by a relevant State Act –

This Act deals with ineffective purported conferral of jurisdiction. Next, his Honour made reference to the structure of the Act – but I do not want to dwell on the details – but sections 6 to 10 – all of which were directed to ineffective judgments, as defined. Section 11 is directed – as his Honour found at paragraph 49 – to pending proceedings but, again, plainly, pending proceedings – which were pending in the federal court – commenced as a consequence of the purported, but ineffective, conferral of jurisdiction on that court.

Next, his Honour at paragraph 50 made reference to the explanatory memorandum which makes the purpose of the legislation clear, including in (b), at page 72 of the application book:

to provide for the transfer of current proceedings . . . in relation to State matters to the Supreme Court -

and then also to the second reading speech at page 73 of the application book.  The first paragraph there deals with effectively the ineffective judgments and the second paragraph:

In addition, the bill provides a mechanism for the transfer to the Supreme Court of current proceedings in Federal courts . . . where a Federal court determines that it has no jurisdiction -

After setting out those matters, both within the framework of the statute itself and the extrinsic materials, it is with that background that his Honour concludes at 53 that section 11, where it uses the “want of jurisdiction” term, it is not referring to any want of jurisdiction but only it is limited plainly in circumstances where there has been a purported conferral of jurisdiction, which has proved to be ineffective or invalid. That is an exercise conventionally in orthodox statutory construction. His Honour also ‑ ‑ ‑

EDELMAN J:   Sorry, Mr Lloyd, do you mean a purported conferral of jurisdiction that has been invalid, or do you mean a purported conferral of jurisdiction that has been invalid for the reasons in Re Wakim?

MR LLOYD:   The way I read his Honour’s conclusion, it could be either or both.  It is not limited, the ultimate construction, to a purported but invalid conferral of jurisdiction of the kind in Re Wakim and that is because it was unnecessary to determine that in this case.  That is because it was found and in any event was common ground that there was never in this case any purported conferral of jurisdiction on the Federal Court to entertain this action. 

The State Civil Carriers’ Liability Act never purported to confer jurisdiction on the Federal Court.  So…..a case where it was contended or could be contended that there was ever any purported conferral of jurisdiction on the Federal Court.  This was rather a situation where there was just an error in understanding the jurisdiction of the Federal Court, but never one based at any time upon a purported conferral of that jurisdiction. 

That really is the central basis of his Honour’s reasons, in our respectful submission, is that the limits of relevant order are to be found, or the line is drawn, in circumstances where there has never been a purported conferral of jurisdiction.  In that light that conclusion was, in our respectful submission, surely correct, based upon all of those matters that I have drawn to your Honours’ attention.  It is consistent with what Justice Leeming said at paragraph 145, application book page 105, applying the principle formulated by Chief Justice Griffith in Muller v Dalgety that:

No differently from every other provision of the State Jurisdiction Act, s 11 is confined in time to proceedings commenced at a time when the Jurisdiction of Courts (Cross‑vesting) Act 1987 (NSW) purported to confer jurisdiction in State matters on the Federal Court.

For those reasons and in addition – I do not want to dwell on them, but Justice Leeming makes additional points with respect to the capricious outcomes or irrational outcomes of the construction advanced by the applicant.  That is to be found at paragraph 140.  Also, we reply upon Justice Leeming’s observations about the unlikelihood of such a wide‑ranging legislative purpose in circumstances where it derogates from the important legal policy underpinning limitation laws because of course on the construction advanced by the applicant, if there was a want of jurisdiction for any reason then there would be power to effectively circumvent the operation of a limitation law unlimited by any time.

Could I deal then with ground 2 and accept immediately, perhaps with one qualification, what fell from your Honour Justice Edelman about whether that truly arises. The way in which that question of construction about whether section 34 of the Commonwealth Act was within the definition of “limitation law” in section 11 of the State Jurisdiction Act was addressed in the Court of Appeal, is to be found first in the then President’s reasons, culminating in paragraph 70 where, for reasons I will not dwell on for present purposes, his Honour concluded that section 34 of the Commonwealth Civil Aviation Act was not a limitation law.

His Honour then went on immediately to endorse the primary judge’s conclusions at paragraph 71, application book 80 which, in effect, made - on the primary judge’s findings, made the findings about limitation law moot, but only moot unless and until the appeal grounds 1 and 2 advanced by the respondent in the Court of Appeal had been determined. 

This arises in a slightly convoluted way in the sense that grounds 1 and 2 advanced by the respondent asserted inconsistency between section 11(2) and 11(3) in the State Jurisdiction Act, and section 34 of the Commonwealth Carriers’ Liability Act enacted into New South Wales law by section 5 of the New South Wales Carriers’ Liability Act.  Because of the words, “for all other purposes”, his Honour, the then President, only dealt with that inconsistency argument in relatively brief detail from paragraphs 73 to 83.  Justice Leeming and Acting Justice Emmett did not deal with that argument at all. 

That is not a criticism.  Justice Leeming gave the reasons why he did not deal with it at 149.  He said that it involved complexity – the inconsistency argument - and because it did not affect the outcome of the

appeal, his Honour would not then go on and deal with it, and, as I have said, Acting Justice Emmett did not address that particular point.

But, once that point is addressed, that is whether there is an inconsistency between section 11(2) and 11(3)(b) and section 34, depending on the outcome of that argument, it will become necessary to then consider the correctness of the findings with respect to limitation law, the subject of ground 2, because if the inconsistency argument prevails then that leads squarely back into the correctness of the findings about limitation law in section 34.

On that question – if it arises, that is – the correctness of the findings about limitation law in section 34 – may we just say this.  What Chief Justice Bell said about limitation law is plainly correct and that issue would be highly unlikely to be of any wide application, bearing in mind it could only ever apply in circumstances where an applicant wrongly invokes the jurisdiction of a Federal Court by commencing an action governed by the New South Wales Carriers’ Liability Act or its analogues in other States, where more than two years has passed since the accident.

It is hardly likely to be a common occurrence, meaning that this Court may be required to consider ground 2 and the correctness of the findings about limitation law in circumstances where the Court of Appeal’s findings, we contend with respect, are surely correct – and where it would be highly unlikely to be of any moment in any other case.

Unless, your Honours have questions, those are our submissions.

KIEFEL CJ:   Yes, thank you.  Anything in reply, Mr Walker?

MR WALKER:   Your Honours, at pages 104 and 105 of the application book, in Justice Leeming’s reasons, may I draw to attention, apropos some arguments by our learned friend, the closing words at paragraph 141 and the closing words at paragraph 143, first of all.  It is no small thing for an argument to find support in the literal language of the provision, and without circularity or tendentiousness of reasoning, that, in our submission, is perhaps a clue to the kind of error for which we contend special leave would be appropriate. 

In paragraph 143, it is difficult to understand, with great respect, why what his Honour properly recognises as a discretion conveyed by the word “may” in the operative provision is not entirely appropriate, particularly in limitation or quasi‑limitation area, to deal with particular circumstances deserving or underserving of particular cases, none of which, therefore, can be seen to have any argumentative force with respect to the interpretation of the definition provisions and how they operate.

In paragraph 144 on page 105, in our submission, Mr Bennion’s subheading, “Unforeseen facts and accidental fit”, is a classic piece of tendentious labelling, if they are thought thereby evidently to describe what has happened in the argument at first instance in this case.  There is nothing unforeseen about the operation of something as straightforward, in plain language, as paragraph (a) of the definition, upon which we rest much of our argument, namely, of “State matter”. 

As to paragraph 145, to which my learned friend drew attention, at page 105, it has to be recalled that the manner by which the legislation has been adapted shows that by definition of “relevant State Act”, quite apart from paragraph (i)’s flexibility to prescribe other statutes, you will see that there appear statutes that postdate any of the relevant dates, including 1987, to which Justice Leeming was referring. 

That, with respect, is enough to cast doubt upon the notion that there has been some timeline marked in blazing fashion as against what evidently you can see in paragraph (a) of the definition of “relevant order” in section 11 at page 124, namely that the order of the Federal Court, which might attract, on our reading, the beneficial discretion, is one that might be made after the commencement of this section – after, without any terminal date. May it please your Honours.

EDELMAN J:   Mr Walker, just two very brief questions.  The first one is, what do you say about the point that Mr Lloyd made about Justice Leeming’s observations concerning the capricious outcomes that the applicant’s construction would lead to, and the second one is, just in relation to the second ground of appeal, whether if you were successful, would the second ground of appeal – in relation to the first ground of appeal – raise any further issues and, if not, would the second ground of appeal raise any further issues?

MR WALKER:   First of all, with respect to the expression in paragraph 11(3)(b):

for the purposes of any limitation law and for all other purposes –

as I tried to convey in‑chief, we submit there is a doubling up evident in that very drafting by which the ground, on the first of the possibilities your Honour raises, would not appear really to add anything.  Of course, it is to be recalled that that phrase, “for all other purposes”, is one of the consequences of the power being available and being exercised, rather than a ground for it being available or being exercised. 

That leads to the question concerning capriciousness.  One needs rigorously to put aside, of course, an understanding of capriciousness being an outcome that the party who uses the word would wish not to suffer or an outcome which would appear to be the operation of provisions which extend the availability of a court’s power beyond what, but for the statute in question, would have existed.  That cannot be capricious because, on any view of it, powers are granted by these provisions beyond those which previously existed.  It is for those reasons, in our submission, that everything under the appropriate epithet of “capricious” are simply matters which are appropriate to a judicial of the discretion. 

May it please the Court.

KIEFEL CJ:   The Court will adjourn briefly to decide the course that it will take.

AT 2.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.09 PM:

KIEFEL CJ:   There will be a grant of special leave in this matter.  Mr Walker, I take it that the grounds will be redrafted, having regard to the concession about ground 2?

MR WALKER:   Indeed, your Honour.

KIEFEL CJ:   Yes, thank you.  How long do you think it will take?

MR WALKER:   Just over half a day, your Honour.

KIEFEL CJ:   Mr Lloyd?

MR LLOYD:   I do not disagree with that, your Honour, although, as your Honours know, we have foreshadowed seeking leave to agitate the inconsistency point which may add a little time to it.  I would not think it will go beyond a day though.

KIEFEL CJ:   Yes, thank you.  The Court will now adjourn.

AT 2.10 PM THE MATTER WAS CONCLUDED