Pedler & Anor v The Water Board

[1992] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S86 of 1988.

B e t w e e n -

ROGER KEVIN PEDLER and STELLA

HILDAGARD FEDLER (Deceased)

Plaintiffs

and

THE WATER BOARD

First Defendant

and

THE ATTORNEY-GENERAL FOR THE

STATE OF NEW SOUTH WALES

Second Defendant

For Directions

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 19 AUGUST 1992, AT 11.18 AM

Copyright in the High Court of Australia

Pedler(3) 1 19/8/92

HER HONOUR: Yes, Mr Fedler, you appear for yourself again,

do you?

MR R.K. FEDLER: Yes, Your Honour.

MR B. WALKER:	May it please Your Honour, I appear for the Attorney-General for New South Wales. (instructed
by the Crown Solicitor for New South Wales)
MR J. JOHNSON:	May it please, Your Honour, I appear for the

first defendant, the Water Board. (instructed by

Roxburgh & Co)

HER HONOUR:  Now, we have the amended statement of claim or

summons. Is there anything you wish to say to it?

MR WALKER:  Your Honour, the position, from the Attorney's

point of view, is relatively straightforward.

Might I compediously remind Your Honour, as it

were, of what happened on the last occasion?

HER HONOUR:	Yes.
MR WALKER:	Your Honour will recall that I raised the rather

curious position of the Attorney, namely, that if

he were not named as a party against whom relief

was sought, and if the excise case, which seems

likely, survived this preliminary skirmish, then he

would certainly wish to intervene on the excise

question.

HER HONOUR:  I think he would want to intervene, would he

not, on the 109 point?

MR WALKER:  I was about to say, Your Honour, we are not sure

whether there is a 109 point.

HER HONOUR:  There may be a point of construction involving

Bradken.

MR WALKER:  It would require, we think, leave to reargue

Bradken. Whether Mr Pedlar intends to seek leave to reargue Bradken is, of course, not clear nor should it be clear from his pleading but, with respect, paragraph 5 of the pleading which is

sought to be amended still failed of its purpose in

properly raising those matters.

HER HONOUR:  I do not know that that is right.

MR WALKER:  I only say it this way: Your Honour, I am not

taking a pleading point any more about

inconsistency as such, but on the Bradken point

Your Honour will see lines 10 or 9 in paragraph 5

raises the proposition as to a breach of the

Commonwealth Trade Practices Act, but in line 11

Pedler(3) 19/8/92

and 12 there is an assertion, not in the

alternative, that the Water Board is the Crown.

Now, that would appear to remove from

Mr Pedler's mouth any argument that,

notwithstanding Bradken, the Trade Practices Act

applies, unless there is to be, as it were, a

complete full-on attack on Bradken, an attack on

principles which, of course, were not laid down for

the first time in Bradken at all.

HER HONOUR:  That is a matter that can be dealt with other

than by pleadings, yes.

MR WALKER:  I was about to say, Your Honour, that is the

only other point in which we would be interested

and, as Your Honour correctly says, certainly as an

intervener.

Leaving aside those matters which would have

the Attorney somehow before the Court or another

court in any event, it is our submission that when

the whole of the now abbreviated pleading is

examined there is no claim for relief, with

respect, against the Attorney except, as

Your Honour has put it earlier, as the appropriate

respondent for the general constitutional question.

Your Honour, the Attorney's interest therefore

is with what should happen to the case hereafter.

Your Honour mentioned on the last occasion that

remitter appeared inevitable. With respect, there are facts to be determined, both on the excise and

on the inconsistency question. More relevantly,

there are proceedings before the supreme court

which raise some and perhaps - Mr Johnson will be

able to assist more on this - all of these issues -

it is our respectful submission that if Your Honour

were minded to permit this amendment

notwithstanding the difficulties I have pointed

out, then the appropriate order would be for it to

be remitted to the Supreme Court of New South Wales

with liberty for the defendants, as they may be
advised, to file further motions to ensure that all

cases before the supreme court are dealt with as

efficiently as possible.

By that last expression, Your Honour, we

intend to comprehend that there may well be some

Henderson v Henderson estoppels arising from

earlier determinations. There certainly seems to

be a doubling up of allegations in different

proceedings which ought to be controlled in the

ordinary way by the Court's control of abuse of its

process.

Pedler(3) 3 19/8/92

It may also be that by dint of using

procedures such as Part 31 in the Supreme Court Act
for issues to be identified, that all the cases

before the supreme court can be combined in some

measure so as to raise, as efficiently as possible,

the matters raised in this statement of claim.	If
it please, Your Honour.

HER HONOUR: Yes, thank you. Yes, Mr Johnson?

MR JOHNSON:  Your Honour, so far as the' issue of further

conduct in the event of leave being given to file

the statement of claim, the subject of the

application of 15 July 1992 is concerned, the Water

Board would follow the suggestion made by my friend on behalf of the Attorney-General and adopt

everything that was said for brevity.

So far as the form of the amended statement of claim sought to be filed, Your Honour, objection

would be taken to paragraph 2 on the basis that on

its face that asserts that the first plaintiff is

not the owner of the subject property and therefore
he would not have standing to bring the. application

so far as it related to the Woy Woy Road property.

HER HONOUR: Nothing particularly turns on it, does it, that

statement?

MR JOHNSON:  Maybe not, Your Honour. What the Board is

concerned about is that in the proceedings that it

commenced in the local court there have already now

been two decisions in the local court, one

determined stated case and one current stated case,

which, except for the issue of the Woy Woy Road
property and the Fair Trading Act allegations that

are contained in this document are substantially the same as the issues that are being determined

here.

In paragraph 3, Your Honour, we would object

to the words commencing, "In mid 1964" in the

second line to the end, on the basis that it is not

relevant to any of the matters that are raised in

the statement of claim. Your Honour might

recollec~ that they were, in fact, in substance,

contained in one of the paragraphs that was struck

out in the earlier drafting.

Your Honour, as to paragraph 5, Your Honour

has already made comment about the reopening or the

redetermination effectively of the Bradken

consolidated decision of this Court. On the law as

it presently stands, the Water Board is a State

instrumentality and Bradken would apply and

therefore the Trade Practices Act would have no

application to the Board. The Fair Trading Act

Pedler(3) 19/8/92

does affect the Crown by its terms, but if the

Trade Practices Act is excised from this, we would

submit that it would be inappropriate at this stage

to raise fair trading issues on what appears to be factual matters in existence prior to the enabling

leglislation coming into effect in 1987 for the

Fair Trading Act.

Further, at about line 15 of paragraph 5, the

words, "and the Water Supply Authorities Act 1987",

Your Honour, there is no suggestion that there is

any attempted recovery of rates or refusal to

supply water or sewerage facilities to the

plaintiff under the Water Supply Authorities Act
and, therefore, we would say that that is not
appropriate to be included in this statement of
claim.

So far as the Metropolitan Water, Sewerage and Drainage Act 1924 issue is concerned, that is,

Your Honour, a matter that is the subject of the

judgment that was obtained in the local court which

is the subject of the supreme court proceedings

which Your Honour was referred to in the hearing of

the applications to strike out on 17 June.

Similarly, Your Honour, the provisions of the

Trade Practices Act and the ultra vires issues are

matters that are before the supreme court and,
therefore, for this Court to seek to determine, in

its original jurisdiction, those issues would

involve a duplication of jurisdiction being

exercised, that jurisdiction being within the

jurisdiction of the supreme court.

Paragraph 6 has the same problem. On the last

occasion, Your Honour, there was argument by

Mr King who appeared for the Board at that time as

to the effect of authority of this Court as to

whether or not the rates would be an excise, as

such, and Your Honour had something to say during

the course of that examination and the discussion

on that day. The position of the Board is that in

respect of that claim, it is a futile claim and

doomed to failure.

HER HONOUR:  Yes. You are, in fact, canvassing matters that

were decided against you on the last occasion, I

think, Mr Johnson, in the sense that it was

decided, was it not, that the question was whether

or not one could have a document that raised a

justiciable issue?

MR JOHNSON: Yes, Your Honour. One of the things that was

of concern to the Board when it looked at this

claim, because in looking at the transcript of what

was said on 17 June, our reading was that it was

Pedler(3) 5 19/8/92

the clear intent of Your Honour, in giving the

leave to amend the paragraphs of the original

document - was that it not canvass the judgment in

the local court which was the subject of the

proceedings, subject to the stated case.

HER HONOUR:  I do not know that that is right. I do not

think that is right.

MR JOHNSON: It was my understanding, reading the

transcript, Your Honour.

HER HONOUR:  Yes, well, I do not think that is right. I

think the estoppel related to the actual claims.

MR JOHNSON: Except for the excise point.

HER HONOUR:  Whether or not there is an estoppel is to be determined after the hearing of evidence. I mean,

that is not a matter that could be determined in

any summary way apart from any estoppel by

judgment, any res judicata estoppel. That is one

matter that can be determined on the papers, but

the others are much more complicated.

MR JOHNSON:  Yes, Your Honour, and it is clear that the

magistrate did not address in his judgment the
particular constitutional issues, although they are

before the supreme court.

They are the submissions on whether or not the

amended document should be accepted, Your Honour.

If it is accepted either in its current form or in

an amended form, we would adopt what my friend said

regarding the remission of the matter to the

supreme court. That, by itself, Your Honour, would

overcome difficulties of this Court hearing matters

~nits original jurisdiction where, if the stated
case is found against the plaintiffs in these
proceedings, it is likely that issues might be the

subject of a special leave application at some

stage in the future and it would be better to have

all matters kept together for the proper
administration of Court time and the conduct of all

of the proceedings, the subjects of the dispute.

HER HONOUR: Yes, thank you.

MR WALKER:  Your Honour, I wonder if I might rise simply to

note that I have not addressed prayer 2 of the

summons before Your Honour. I am not sure whether

Your Honour wishes me to do that at this point.

Prayer 2 seems to ask for Your Honour to - - -

HER HONOUR:  I am looking at the statement of claim.

Pedler(3) 6 19/8/92

MR WALKER:  You see, there is reference to "the Full Court"

on it.

HER HONOUR:  Yes. I think what I shall do - - -

MR WALKER:  But I had really only addressed the issues in

prayer 1, Your Honour.

HER HONOUR:  Yes. Well, I cannot, of course, deal with

prayer 2.

MR WALKER:  There is also a request that Your Honour review

Your Honour's orders. I think, with respect, that

that is not possible in simply that form.

HER HONOUR:  Yes, that is right. Thank you.

Mr Fedler, this summons is a little curious in

relation to prayer 2. What I am prepared to do

thus far without hearing you further is to indicate

that the statement of claim is sufficient

compliance with the order previously made raising

justiciable issues which are appropriately

determined in the exercise of judicial power.

Whether or not the statement of claim complies

precisely with all matters of pleading is not a

matter with which I would presently concern myself.

Now, the real question, Mr Fedler, is what do

we do from here on in?

MR FEDLER:  I would agree with my friends over here that

the whole matter should go to the supreme court to

be dealt with, as far as practicable, with the

stated case as is now before it so that the two are

combined together as one issue.

HER HONOUR:  Yes. Now, what about prayer 2 in your summons?

That does not seem to me to be a competent

application that can be made, whether to me or
otherwise.	If you do not like the decision thus

far you must appeal or you must seek leave to

appeal.

MR FEDLER: Yes, Your Honour. The last time I was before

this Court Your Honour raised basically two

problems, as far as I am concerned, one being the

fact that the Water Board is a statutory

corporation and on the authority of the Railway

cases - - -

HER HONOUR: That is not a matter I am determining. That is

a matter you are going to have to argue.

MR PEDLER:  It was a matter which was canvassed at the time,

Your Honour.

Fedler(3) 19/8/92

HER HONOUR:  Yes. I think that is a matter you will have to

argue somewhere. That is a matter going to your

entitlement to relief rather than whether or not

the statement of claim was sufficient. That is a

matter you will have to study and argue.

MR FEDLER:  Yes. My argument is that it does not really

relate to this because the Water Board, in those

days, was not a statutory body representing the

Crown, it has only recently become one.

HER HONOUR:  That will not affect the acceptance of your

statement of claim.

MR FEDLER:  No, Your Honour. And the other one, of course,

was the excise duty which - - -

HER HONOUR:  Yes. Well, both of those I accept are

justiciable issues sufficiently ra.ised by your

statement of claim.

MR FEDLER:  Yes, Your Honour. They are the two basic issues

which I felt were only ones that this Court should

or could, in fact, deal with.

HER HONOUR:  In that case, I would, unless you have got

something else to say to me, indicate that I am

prepared to state that the statement of claim

annexed to your summons is sufficient compliance

with the order made by me on 17 June and order that

it be treated as having been filed in this Court on

15 July 1992. Then I would propose to order that

the costs of the applications that were before the

Court on the last occasion - I do not think I

ordered with respect to them, did I - be costs in

the cause. Did I make orders?

MR WALKER:	No, Your Honour.
HER HONOUR:	Be costs in the cause, that is, that they will

abide the final outcome of the decision. That

further proceedings in the matter be remitted to

the Supreme Court of New South Wales, with liberty

for all parties to apply and to make such further

motions as are necessary to ensure that all matters

before the supreme court are dealt with as

expeditiously as possible. Thirdly, that the

action proceed in the supreme court as if the steps

taken in this Court had been taken in that court.

Finally, that the Registrar forward copies of all

documents filed in this Court to the proper officer

of the supreme court. Costs of the remittal, also,

to be costs in the cause.

That is the orders I would propose to make

unless anybody has anything to say otherwise.

Fedler(3) 8 19/8/92

MR WALKER:  Your Honour, I do not have anything to say

otherwise except, Your Honour, the costs order,

with respect, would appear to apply to the present

application for the first time before the Court

today. Your Honour did make an order for the spent

applications which were concluded on the last

occasion.

HER HONOUR:  Thank you. The second order is that costs of

today's application and the costs of the remitter
to be costs in the cause. Is that sufficiently

clear to you?

MR WALKER:	It is sufficiently clear to me, yes.
HER HONOUR:	And the final matter is that I should certify

that this is a matter fit for the attendance of

counsel in chambers.

MR WALKER:	May it please Your Honour.
MR JOHNSON:	May it please Your Honour.

AT 11.40 AM THE MATTER WAS ADJOURNED SINE DIE

Pedler(3) 19/8/92