Plaintiff S157-02 of 2002 v The Commonwealth of Australia
[2002] HCATrans 279
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S157 of 2002
B e t w e e n -
PLAINTIFF S157 OF 2002
Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
Defendant
For mention
GUMMOW J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 23 JULY 2002, AT 9.32 AM
(Continued from 19/7/02)
Copyright in the High Court of Australia
MR D.J. COLQUHOUN‑KERR: If it please your Honour, I appear for the plaintiff. (instructed by Parish Patience Immigration, Lawyers)
MR S.B. LLOYD: I appear for the Commonwealth, your Honour. (instructed by the Australian Government Solicitor)
HIS HONOUR: I have this draft case stated here. Two things occurred to me. If it transpired that section 474 was relevantly invalid, that would not avail your client, would it, unless 486A was also invalid? Is that how it would work out, or is there some other possibility?
MR COLQUHOUN‑KERR: No, I do not believe so. I think both the Commonwealth and myself are agreed that under no expanded construction of Hickman that has thus been advanced or considered by the courts could a claim under the sort of Miah heading succeed. I scoured the authorities. The only matter that has tested this that I am aware of is a decision which I have not put on the authorities because I did not think it was in contest. It was NAAX v Minister for Immigration and Multicultural Affairs, a Federal Court decision before his Honour Mr Justices Gyles [2002] FCA 263. A point similar to that which we have raised was argued. I have a copy of the decision, just a printout from ‑ ‑ ‑
HIS HONOUR: I can get it quite easily, thank you.
MR COLQUHOUN‑KERR: His Honour considered an argument that was there put that on the basis of Miah a jurisdictional error had occurred and, on the authority of Aala, therefore you could squeeze this in within the Hickman principle if the Hickman principle is a true construction of how section 474 operates. The court rejected that very bluntly and so I think that is where the authority of the judicial system operates at the moment.
HIS HONOUR: Yes. All right.
MR COLQUHOUN‑KERR: Your Honour, might I just raise one point that my friend raised with me this morning. When we came before your Honour the other day I indicated that it was the Commonwealth’s view that the words “in whole or in part” should remain in the question. It has been put to me by Mr Lloyd that given that the matter is now expressed in terms of the formulation that was in Lim, those words “in whole or in part” are no longer relevant. So that, in a sense, tails of those questions could be deleted.
The other point, if I might just again explore something with your Honour, and I put it no higher than this: when your Honour asked me about section 486A and whether or not we must be defeated if that was held to be valid, I was unambiguous in agreeing that that must be the case on the way in which that was expressed. I have since had the occasion, because I was troubled by that, to look at a case in which your Honour was involved, Mewettv The Commonwealth of Australia (1996) 191 CLR 471, and your Honour’s judgment with ‑ ‑ ‑
HIS HONOUR: It is a joint judgment, I think.
MR COLQUHOUN‑KERR: A joint judgment with Justice Kirby at – the pages that I am referring to are pages 534 to 535. Your Honours said to this effect, that where you have:
a statutory bar, at least in the case of statute of limitations in the traditional form, does not go to the jurisdiction of the court to entertain the claim but to the remedy available and hence to the defences which may be pleaded. The cause of action has not been extinguished. Absent an appropriate plea, the matter of the statutory bar does not arise for the consideration of the court. This is so at least where the limitation period is not annexed by statute to a right which it creates so as to be of the essence of that right.
We would simply say that where the Constitution confers the right that the bar cannot plausibly be argued to be annexed to it, so it is of the essence of that right. So, it is possible an argument could be sustained – and I put it no higher than that – that you could properly bring the action and if the Commonwealth raised no objection, did not put it in issue as to limitations, that the matter could be heard and determined by the court. Subsection (2) of the provision which purports to exclude the court from extending time does not come into operation because the court would not be asked to do so.
So, on that basis, it would be at least thinly arguable – and I put it no higher than that – I think, plainly – well, perhaps it is more than thinly arguable. Certainly, at least it is arguable that the real bar that we face is 474 rather than 486A. Of course, then it would be an issue whether the Commonwealth sought to raise that point later.
The other matter I guess I would raise by way of preliminaries is that I note that at the time when the statement of claim was issued, the reason we pleaded it in this form was because the real bar was 474, not 486A. We were within time. We were aware of the decision in NAAX and we felt that pursuing a futility was just not a proper judicial course to follow or a legal course to follow. So, from our point of view the real bar was then, at the time at which these matters were instigated, 474. Had 474 been not part of the statute, had that been removed, 486A, if it purported to bar action that was no bar to us at that time.
Coming to the end of this point, what I am getting to is perhaps I might take your Honour back to Lim which your Honour directed us to the other day and suggest that rather than two questions, we might consolidate a single question as they did in Lim and rather have this sort of awkwardness that we face when we are trying to – we do not want to be sidetracked onto - what we regarded as a procedural issue which was not relevant at the time of our filing which, of course, you are correct in identifying as a potential bar subsequently but we would say an invalid bar. But our argument as to its invalidity goes to two legs in our part. Firstly, that it is invalid as a natural consequence of the section 474 being invalid, in other words, it is all interconnected, and the second point being the same point that was raised in Lim and which was part in the decision in that case that you cannot take away from the court by any device a power which is inherent in that court to grant orders in that case in relation to the release of persons from custody - in this case, we would say in relation to the inherent power that the Court possesses under 75(v).
My friend has suggested a course which deletes the words “in whole or in part” and the tail to the two questions but perhaps a more convenient course might be to simply put the question, “Are sections 474 and 486A of the Migration Act 1958 invalid in respect of an application by the plaintiff to the High Court of Australia for relief under section 75(v) of the Constitution?”, which puts the whole issue at large. It is the way in which it was actually put to the Court in Lim which your Honour referred us to and it might mean that there is no advantage or disadvantage in relation to the way in which the action would be argued before the Full Court.
HIS HONOUR: Yes. What do you say, Mr Lloyd?
MR LLOYD: Well, perhaps just for the convenience of the Court, I would hand up a copy of the case stated. Perhaps I should just draw your Honour’s attention to two factors. We note that in the defence the Commonwealth has raised the bar for 486A so it is not, in fact, theoretical. It is raised. The other thing which your Honour might not entirely appreciate – I do not know that anything turns on it but just to inform the Court – that 486A was introduced prior to the privative clause.
HIS HONOUR: I knew that, yes.
MR LLOYD: And then amended by the privative clause.
HIS HONOUR: Yes, that is right.
MR LLOYD: So, it may well be that even if the privative clause goes down, 486A will still have some applicable operation to this provision. But
as to the form of the questions, I would say that we are not much fussed if it is in two questions or one.
HIS HONOUR: I think it should be two actually. Have you a copy of Mr Lloyd’s draft?
MR COLQUHOUN‑KERR: I did but he has just handed it up to you, your Honour. I do now.
HIS HONOUR: I think it would be of use if the pleadings themselves, as Mr Lloyd has just mentioned, were annexed as well in this action, this 76(i) constitutional action, out of which the case stated has grown. So, looking at paragraph 2, “The defendant, the Commonwealth of Australia”, add at the end of that the sentence, “Copies of the writ of summons, statement of claim and defence in the action are annexure A hereto.” Then in 4, make (a) (b) and then in 6 make (b) (c) and then in 7 make (c) (d) and then in 10 make (d) (e). I think the rest is okay. So, if that can be re‑engrossed and I will sign it in chambers.
MR COLQUHOUN‑KERR: Might I just simply mention, your Honour, just for purity: the actual draft order nisi has two endorsements at the foot and we would be simply proposing that a copy which does not have that awkwardness be included and I perhaps just hand up for your Honour’s file a copy which avoids that duplication.
HIS HONOUR: Yes. It is a natural justice case, by the look of it.
MR COLQUHOUN‑KERR: Yes. If I might argue briefly, the point we make is that Hickman, when one reads it, it is a case which is often referred to but never read. We argue that Hickman, when you read it, is authority for the propositions we put that a statute of this form cannot bar the jurisdiction of the Court and we will be referring to the judgments of Justices other than Mr Justice Dixon and we say there has been a misunderstanding of the authority of that case which has flowed through jurisprudence since, but there is no binding authority on this Court since that time.
HIS HONOUR: It is often said that Hickman just indicates a question of construction but you say it is a bit different to that.
MR COLQUHOUN‑KERR: Yes, indeed, your Honour. We argue that Hickman’s Case is actually authority for a very different point and that Mr Justice Dixon’s obiter remarks are quite out of character with the majority of the Court and, indeed, the majority of findings of previous courts right from the time of the formation of the Constitution and the intendment of the framers. So, we say that because of the high regard in which Mr Justice Dixon was held, too great respect has been given to the obiter of his remarks and for – on a rare occasion, the Court, in a sense, has treated as authoritative a finding which was not only obiter but which conflicts with the approach that was taken by the majority in that Court.
HIS HONOUR: Yes. Now, one thing that will assist us in the Full Court, I think: Hickman involves some regulations, does it not?
MR COLQUHOUN‑KERR: Yes.
HIS HONOUR: If we have an actual copy of the actual regulations – they are rather obscure, I think.
MR COLQUHOUN‑KERR: Yes. Look, I would be very happy to ensure that those regulations ‑ ‑ ‑
HIS HONOUR: If that could be part of the list of authorities it would be helpful, I think.
MR COLQUHOUN‑KERR: Yes.
HIS HONOUR: It is rather hard to follow the case unless you have the regulations in front of you, from my recollection of it.
MR COLQUHOUN‑KERR: Yes, your Honour.
HIS HONOUR: Now, 78B notices will have to be given, obviously.
MR COLQUHOUN‑KERR: Your Honour, 78B notices have been given. Whether they are in a form that is adequate ‑ ‑ ‑
HIS HONOUR: Yes, but the States may get very excited if they know it is going to a Full Court, I suppose, or they may be totally indifferent. I do not know.
MR COLQUHOUN‑KERR: Yes, it may well be. I simply mention that on the file there are 78B notices which I think address all the points that come through in the case stated but we are happy to reissue those.
HIS HONOUR: Now, that had better be reissued when you have a date for hearing of the case stated which I cannot give you at the moment and you will also need directions for submissions, I guess.
MR COLQUHOUN‑KERR: Your Honour, as to the date, it was both the view of the plaintiff and the Commonwealth that it might be convenient to list this matter at the same time. There is a matter which raises certainly not
these precise points but other matters going to the effect of the impact to the privative clause.
HIS HONOUR: That is S134 of 2002.
MR COLQUHOUN‑KERR: Yes, put down by her Honour Justice Gaudron.
HIS HONOUR: Yes, that is right.
MR COLQUHOUN‑KERR: And it might be a great convenience – that is put down for a day and a half argument. I certainly believe it would be a significant convenience if that could be achieved. The summons for directions puts out a proposed time lines for submissions. It is longer than normal but, given the complexity of these matters and the fact that we are really trying to amend something that is normally done in an appellate jurisdiction, it gives the Commonwealth longer time to respond to the submissions we make and certainly would mean that – we are happy with that. So the timetable, I think, can be agreed and ordered today but I would ask your Honour to consider sitting down this matter also for 3 and 4 September.
HIS HONOUR: Yes. The question is – I suppose it affects Mr Lloyd in a way. It might assist the Commonwealth, I suppose, to have one counsel do two, I guess.
MR LLOYD: Yes. It is certainly my instructions that we are content with 3 September. We are not pushing for it but ‑ ‑ ‑
HIS HONOUR: The question is: will there be enough time? That is the problem.
MR LLOYD: Well, indeed.
HIS HONOUR: Are you in the other matter?
MR LLOYD: No, although I am in another matter that Mr Basten is running the same argument in which will run before the Full Federal Court before it gets to the High Court.
HIS HONOUR: That depends to some extent on injunctions, does it not?
MR LLOYD: Yes. Although the case that I am in does not depend upon injunction; it depends upon a particular argument as to invalidity of 474, so it only perhaps has part of the matter in the High Court.
HIS HONOUR: Yes. Now, let me just get this clear. So, in the other matter Mr Basten is Mr Kerr’s counterpart, is that right?
MR LLOYD: Yes, although I should say I will be led in this matter, I would imagine, by Mr Bennett. He would be in both matters.
HIS HONOUR: I would think so, yes.
MR LLOYD: And whether or not I am in this matter, it might be that the counsel in the other matter will just be given this case.
HIS HONOUR: Yes. It would assist if I knew that the three counsel, I suppose, the Solicitor‑General, Mr Kerr and Mr Basten, could come to some arrangement as to dividing the time for those three days. I would expect the States would not intervene, myself. They may but I do not think so. I would be surprised.
MR COLQUHOUN‑KERR: Can I indicate we have had no indication that the States thus far propose intervening but your Honour is right that it may emerge that they have a renewed interest if it is listed for hearing in the Full Court. But I have raised this on a tentative basis with Mr Basten. Naturally ‑ ‑ ‑
HIS HONOUR: There may be some overlap between your arguments; I do not know.
MR COLQUHOUN‑KERR: Indeed. There may be some differences also because Mr Basten, I think, is arguing quite a novel point that this Act actually confers on the High Court some administrative powers which therefore makes the provision invalid. But I am not certain whether it might be possible to obtain perhaps an extra half day. Time is a very difficult thing, I know, for the Court.
HIS HONOUR: It is not just time. It is the availability of Justice Gaudron, you see.
MR COLQUHOUN‑KERR: I see.
HIS HONOUR: It needs seven Justices, I think.
MR COLQUHOUN‑KERR: It would be convenient, in our submission, to list it at that time and perhaps consider whether some adjustment of the timetable might give us an hour or so more. Written submissions will be largely dominant in this case, I think.
HIS HONOUR: What I will do is if you can engross the case stated, I will then sign it in chambers and I will discuss the position with the Chief Justice and following that I will probably list both matters, both Justice Gaudron’s one – because she is on leave at the moment – and this one some time later next week to have some co‑ordinated directions. That might be the best thing to do.
MR COLQUHOUN‑KERR: If it please the Court.
HIS HONOUR: Is there any date next week that is particularly bad for you, because we will have to accommodate Mr Basten? If you tell me now anything that is out – I will tentatively fix it for Friday, the 2nd at 9.30.
MR LLOYD: May it please the Court.
HIS HONOUR: All I need now, I think, is reserve today’s costs and certify for counsel, and you will hear from the District Registrar about the relisting. But if you could raise with Mr Basten what has happened this morning it might help. I will now adjourn.
AT 9.55 AM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 2 AUGUST 2002
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