Plaintiff S164/2018 v Minister for Home Affairs

[2018] HCATrans 223

[2018] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S229 of 2018

B e t w e e n -

PLAINTIFF S164/2018

Appellant

and

MINISTER FOR HOME AFFAIRS

Respondent

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 31 OCTOBER 2018, AT 9.59 AM

Copyright in the High Court of Australia

MR V.A. KLINE:   If the Court please, I appear for the appellant.  (instructed by Victor Alan Kline, Barrister)

MR C.L. LENEHAN:   May it please the Court, I appear with my learned friend, MS K.N. PHAM, for the Minister.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Kline.

MR KLINE:   Your Honour, if I may I will begin with your Honour’s two written questions sent to the parties.  As I understand your Honour’s first question, what your Honour is postulating is an interlocutory decision of a justice and a putative appellant who does not seek leave, the question being does the Court, and the Court must be defined pursuant to section 15 of the Judiciary Act as either a single Justice or the Full Court, does the Court have power of its own motion to determine whether the Court has jurisdiction to hear that appeal?  We would say the answer is yes, for the following reasons.

HIS HONOUR:   Before you get into that, if that is so, then what really is the purpose of contesting the Minister’s summons because if the issue can be raised by the Court then what really is the purpose of saying that the Minister has no power to raise the question of whether the Court has jurisdiction to hear the appeal?

MR KLINE:   Yes.  Your Honour, there is a significant distinction between an appeal as of right and an application for leave to appeal, the obvious big difference being that an application for leave to appeal can be dismissed and an appeal as of right cannot.  If the application for leave to appeal is dismissed on the procedural issues then the putative appellant has not had the opportunity to air the substantive arguments.  If that then leads into your Honour’s second question, you may not need me to go through why the yes, as ‑ ‑ ‑

HIS HONOUR:   The curiosity really that I was directing your attention to in the second question was why the plaintiff did not take the same approach to this case as the applicant in Re Media, Entertainment and Arts Alliance took, which is that if you had some doubt about whether this ought to be lodged as an appeal rather than as an application for leave, why not file both?  It seems that the plaintiff wants to put all its eggs in the appeal basket.

MR KLINE:   Well, we had no doubt, your Honour.  It may sound arrogant, but we had no doubt and that is why we did it this way.

HIS HONOUR:   All right.

MR KLINE:   We looked at Gallo and went here is a decision of a Justice of this Court in an identical situation saying that that appellant had an “as of right” appeal on all‑fours with this case so we went ahead and lodged the appeal.  Your Honour’s second question is, however, is there a prejudice to the appellant if the Full Court deals with the matter by way of ‑ ‑ ‑

HIS HONOUR:   That was really just directed to whether the application was – or why the application was brought only as an appeal but I think you have answered that already.

MR KLINE:   Well, not quite, with respect, because if the application for leave to appeal was heard by the Full Court and the appellant, as is often the case, as your Honour knows in these matters, the appellant was also allowed to simultaneously argue the substantive issues I cannot see any prejudice would arise that way.

HIS HONOUR:   Yes.

MR KLINE:   So that is to complete the circuit.  May I assume that your Honour has had the opportunity to read the three submissions of ‑ ‑ ‑

HIS HONOUR:   Yes.

MR KLINE:   Then in a nutshell what we have here is an appeal lodged by the appellant, the respondent files a summons saying that should have been an application for leave to appeal, it was therefore incompetent and should be dismissed and the appellant files a summons saying the respondent’s summons should be dismissed because they had submitted to the jurisdiction.

In terms of the appellant’s summons, we say this is a matter arising under the Constitution or involving its interpretation. As such this Court has jurisdiction under section 76(i) of the Constitution and section 30(a) of the Judiciary Act.  It came before a Justice in the original jurisdiction of the Court.  We say that that was a final decision from which an appeal as of right arises and we go on to say that the respondent accepted that by filing an unconditional notice of appearance which, for all the reasons and on the authorities and in relation to the rules set out in paragraphs 7 to 18 of the appellant’s original submissions, was a submission to jurisdiction and they cannot now challenge jurisdiction and so I will not go back over those.

HIS HONOUR:   Do you accept that there is a difference between the personal dimension of jurisdiction and the subject matter dimension of jurisdiction?

MR KLINE:   Yes.

HIS HONOUR:   Why is it that you say that the question of whether an interlocutory decision is part of the – why do you say that is part of the personal dimension of jurisdiction rather than the subject matter dimension of jurisdiction?

MR KLINE:   We are saying it is not an interlocutory decision.  We are saying it is a final decision and this Court has subject matter jurisdiction and ‑ ‑ ‑

HIS HONOUR:   Perhaps if you start with that point then, why do you say it is a final decision?  Do you say that the decision of this Court in Re Media, Entertainment and Arts Alliance was wrong?  You have not applied to reopen that decision and as a single Justice I would not reopen that decision, would I?

MR KLINE:   I think, your Honour, that set against that is the decision of Justice McHugh in Gallo which assumes a long line of authorities that I have set out in my written submissions.  Those authorities make it very clear ‑ ‑ ‑

HIS HONOUR:   Hang on a second, Mr Kline.  The decision in Re Media, Entertainment and Arts Alliance is a decision of five Justices of this Court that have said that an application in the nature of an order nisi is an interlocutory decision.  Now, do you say that that decision was wrong and do you ask me as a single Justice to reopen that decision of the Full Court?

MR KLINE:   No, I would distinguish that on the nature of the result because, as Justice Gibbs has said, one looks not at the nature of the proceedings – whether it is the nature of the proceeding in that case or in this case, one looks at the result.  The result of this was that it was heard on the merits and the Justice at first instance dismissed it with costs.  There is nothing more the parties should do or can do.  It is a very different case from Re Media Alliance.  So moving on to the respondent’s summons, the respondent ‑ ‑ ‑

HIS HONOUR:   So you say that of the nature of the decision before Justice Gageler, that a decision of that nature was one where it was not possible for the plaintiff to relitigate the subject matter?

MR KLINE:   That is correct, your Honour.

HIS HONOUR:   You say it was not possible or that ‑ ‑ ‑

MR KLINE:   It was not possible.

HIS HONOUR:   ‑ ‑ ‑ had the plaintiff sought to relitigate the outcome would have been inevitable?

MR KLINE:   No, no, it is not possible.  The matter was heard on the merits by a Justice of this Court who dismissed it with costs.  Both practically and legally that was the end of the matter.

HIS HONOUR:   That is exactly what Re Media, Entertainment and Arts Alliance says is not the case.  It is exactly that point, is it not?

MR KLINE:   Well, no, because I think in that case it was possible to reopen.  It is not possible in this case.  Surely there is a difference between the two, with respect.

HIS HONOUR:   Right.

MR KLINE:   In terms of the respondent’s summons, the respondent says that the decision of Justice Gageler is not final and therefore the appellant needs leave to appeal.  We say first of all that question does not arise but even if it does we say the direct authority of Justice McHugh in Gallo and all the matters I have said to your Honour – well, I think I have actually, in our discussion, your Honour, dealt with all the matters in relation to the respondent’s summons so there is nothing further I would want to put unless your Honour wishes me to.

HIS HONOUR:   All right.  You have dealt with all the matters in your summons as well?

MR KLINE:   Yes, well, very briefly and in a nutshell but by referring your Honour to the key sections, which were paragraphs 7 to 18 of our submissions, which your Honour has read.

HIS HONOUR:   Yes.  Thank you, Mr Kline.

MR KLINE:   Thank you, your Honour.

HIS HONOUR:   Mr Lenehan.

MR LENEHAN:   Your Honour, I should start by reading the affidavit of my instructor, or one of my instructors, Mr Markus, which was affirmed on 19 September of this year.  That essentially just puts the papers before the Court.

HIS HONOUR:   Yes, thank you, I have read that.  I take that as read.

MR LENEHAN:   Thank you, your Honour.  Your Honour, in a nutshell what we say on our summons is that it is clear that the judgment of Justice Gageler was interlocutory.  It is therefore clear, in my submission, that leave was required under section 34(2) of the Judiciary Act.  The appellant did not seek leave.  He does not seek it now and therefore the only alternative is to dismiss the appeal as incompetent.

I will say something very short on the appellant’s summons but essentially we adopt what has fallen from the exchange between your Honour and my friend, that is whatever be the position with my client there is no doubt that your Honour has both the power and, in fact, the duty to consider any condition on jurisdiction that arises.  If there is such a condition it needs to be considered.  In terms of our summons then, your Honour ‑ ‑ ‑

HIS HONOUR:   But in relation to the Minister, your position, as I take it, irrespective of the power that the Court has of its own volition to raise issues of jurisdiction, is that questions of whether the decision was interlocutory or final are questions that are related to subject matter, not to person.

MR LENEHAN:   No, exactly.

HIS HONOUR:   If they were questions that related to the personal dimension of jurisdiction then it may be that you had submitted to or waived abilities to object to any defects in the personal jurisdiction.

MR LENEHAN:   Quite right.  Your Honour has our point and, with respect to our friend, he is confusing what has been said to be, on a number of occasions by this Court and Justice Leeming in his book, a difficult question which is often confused.  So, yes, we say the subject matter relevantly here is appeals from final judgments of the Court and those interlocutory judgments of the Court in respect of which leave is sought and obtained.

HIS HONOUR:   What do you say about the decision in Gallo and whether that supports a characterisation of applications in the nature of an order nisi as final?

MR LENEHAN:   It plainly does not.  It is not dealing with that procedure.  It is dealing with a claim essentially for damages, which was dismissed.  It is, as your Honour said, clear on the basis of Re Media, Entertainment, which, as your Honour noted, is a decision of five Justices of this Court, that the old order nisi procedure is certainly, insofar as that involves the dismissal of an application for an order to show cause, that is plainly interlocutory.

The reason in principle for that is revealed by the reference that their Honours give in that decision to a decision of the New South Wales Court of Appeal in Coles v Wood, which we refer to in paragraph 14 of our submissions and that in turn refers to the notion that the test is whether the rights of the parties in the principal cause, whether the legal effect of the judgment is final or not in respect of those rights.  If it is then it is a final order, otherwise it is an interlocutory order.

The essential submission in relation to an application for an order to show cause – and this is set out in some detail in Coles v Wood – an order dismissing such an application does not preclude a further application for a similar order.  It likewise does not stand in the way of any other challenge to the validity of what is sought to be impugned, so, for example, if our friend sought to bring an action for unlawful detention, for example, that would not stand in his way.  It follows from that that on any view the legal effect of the order made by Justice Gageler here ‑ ‑ ‑

HIS HONOUR:   Is the reason why an order to show cause or an application in the nature of an order nisi is one which does not preclude a subsequent application even if that subsequent application might be doomed to failure if it involved exactly the same facts because the nature of an order to show cause is one which involves discretion as to the utility of making the order?

MR LENEHAN:   Yes, and that in fact is said in Coles ‑ ‑ ‑

HIS HONOUR:   Except that would also apply at the hearing of the final application for prerogative relief as well, would it not?

MR LENEHAN:   Well, it may, your Honour.  Happily, I do not have to get to that point but it clearly applies ‑ ‑ ‑

HIS HONOUR:   No one would suggest that final prerogative orders are interlocutory.

MR LENEHAN:   Yes, and I am not.

HIS HONOUR:   Yes.  So why would the rationale in a case like Coles apply to create a particular rule for orders to show cause separately from the final order?

MR LENEHAN:   Your Honour, it may also relate to the fact that that is an interim step on the way to obtaining what is obviously a final order, that is the writ itself.  So the first step is that one issues the order to show cause which then – under the old procedure then actually required service of that order on the respondent and then as the next step there is something in the nature, on any view, in the nature of final relief, as your Honour says.  Happily, I have a decision of the five Justices which is clearly for that proposition.

HIS HONOUR:   Yes.

MR LENEHAN:   That is what the Minister relies upon.  Your Honour, we have set out in our written submissions that that same approach as reflected in Coles is also reflected in the decision of Justices Whitlam and Kiefel in NAHQ, which we refer to at paragraph 15 of our submissions.  We do accept that the proposition that I am putting has not been squarely considered in respect of the new High Court Rules but there are many instances in which that approach has in fact been taken as a matter of practice by Justices of this Court. 

We have identified two in footnote 12 of our submissions.  That is Bryant and Banerji.  We placed a further two examples on our list of authorities which we provided to the Court yesterday.  That is Nayyar and Plaintiff M126/2016.  There are, I am told, many other examples.  I do not put too much emphasis on that because, as I say, the issue has not squarely arisen but the practice of this Court is clearly consistent with the submission that I put and Media Alliance - your Honour asked my friend is it in any way distinguishable from the facts of the present case.  In my submission he gave no meaningful answer to that question and it is not.

So for all of those reasons we say leave was required under section 34(2).  As I said it was not sought and that therefore results in the only course being to dismiss the purported appeal.

Now, I think I addressed what I wanted to say in respect of the appellant’s summons at the beginning of my submissions in response to the question by your Honour as to how we sought to distinguish subject matter and personal jurisdiction.  We gave your Honour yesterday what we think is a useful passage from Justice Rares’ decision in an earlier…..in Luck which ‑ ‑ ‑

HIS HONOUR:   I saw the decision.  I am not sure that I was directed in the reference to any particular passage in it.

MR LENEHAN:   I apologise, your Honour.  The relevant passage is at paragraph 97 and perhaps if I just read part of what his Honour says there.  He says – this is in respect of 24(1A) of the Federal Court Act:

The grant of leave to appeal is a jurisdictional condition that depends on the Court or a judge being satisfied that it is appropriate. 

Jurisdiction does not derive from the consent of parties.  It is important that the basis on which the Court’s power to deal with a matter in its appellate jurisdiction be identified.  If leave to appeal is required, the Court must be satisfied that the primary judge’s decision is sufficiently doubtful to warrant the grant of leave and that substantial injustice would result if leave were refused –

referring to Bienstein.  That, picking up the thrust of your Honour’s question and then the exchange with our friend, makes clear that one cannot waive – give consent to that sort of condition on jurisdiction.  That is quite separate, as your Honour observed, from the question of personal jurisdiction for the reasons that I have already identified.

That being the only matter on which our friend relies in respect of his summons, we say that summons should likewise be dismissed and the Minister seeks his costs in respect of both summonses.  Unless your Honour has any further questions for me, those are the submissions the Minister makes.

HIS HONOUR:   If an application for leave were subsequently filed is there any reason why all of the submissions and any relevant material that has been filed could not simply stand as the material filed in that application for leave?

MR LENEHAN:   That would be a sensible course, your Honour.  My friend of course would then have the further requirement under 41.02 in terms of time but that obviously would not be the Minister’s best point.  There are more fundamental reasons that we would rely on in respect of leave.

HIS HONOUR:   Yes, thank you, Mr Lenehan.

MR KLINE:   Just briefly, your Honour, I may be able to assist a little – these questions of order nisi and doomed to failure and all these things we have been discussing, I would submit that there is a big difference in the current rules from the cases that were decided in the past and that is that there is a direct opportunity for a judge to hear the matter on the merits and dismiss it.  That 25.03.3(a) of the rules did not exist before. 

I hope it is fair to say that questions of – show cause applications and order nisis and when those orders are made absolute and where they stand was a bit of a messy business in the modern world and I would suggest that that was why that subparagraph (a) was brought in, so that a justice could, if he or she wished, do exactly what Justice Gageler did and dismiss the matter.  In fact I might be so bold as to even point out that under the new rules that are going to take effect from tomorrow ‑ ‑ ‑

HIS HONOUR:   This matter comes in under the old rules, though.

MR KLINE:   Yes.  No, I am just saying that the rules that come in tomorrow, I think are part of that process of getting rid of the difficulties that arise around order nisis and orders made absolute and that sort of thing.

HIS HONOUR:   Yes.

MR KLINE:   That is all I meant, but, yes, clearly.  So Justice Gageler operated under 25.03.3(a).  That was something not available under the old rules.  It is a very clear opportunity for a justice to do something.  That is why I have put in my written submissions that I believe Justice Gageler went to the trouble of saying, when my friend was talking about where to remit the matter should it be remitted, and his Honour said “Mr Lenehan, I will either send this to the Full Court or I will deal with it myself” and I think his Honour wanted to make it very clear that if he did not send it to the Full Court he would be utilising that subsection ‑ ‑ ‑

HIS HONOUR:   Sorry, just so I understand, the major difference, you say, between the 2004 rules and the rules that were considered in the Re Media, Entertainment and Arts Alliance Case is that 25.03.3 provides for an order that an application for an order to show cause can be dismissed.

MR KLINE:   Yes.

HIS HONOUR:   You say that previously the orders did not permit – the rules did not permit an application to show cause to be dismissed?

MR KLINE:   They did not – no, no.  So that is, I think a distinction that I would want to make and ‑ ‑ ‑

HIS HONOUR:   Just one second, under the previous rules it was not possible to dismiss an application for an order to show cause.

MR KLINE:   There is no rule that allows for that.

HIS HONOUR:   So any application to show cause under the previous rules had to be allowed?

MR KLINE:   Well, an order nisi could be made.  Look, in all honesty I forget the exact ‑ ‑ ‑

HIS HONOUR:   The order nisi could not be refused, you are saying?

MR KLINE:   In all honesty, your Honour, I forget ‑ ‑ ‑

HIS HONOUR:   Dismissing an application to show cause is the same as refusing an order nisi.

MR KLINE:   No, because refusing an order nisi allows the party to come again and this does not.  A dismissal is a dismissal.  I think that is why it was put in, for this very point, for this very purpose.  The only other thing I would want to mention is Luck v University of Queensland.  That was a case that involved summary judgment made under section 31A(2) of the Federal Court Act where the parties accepted that a summary judgment was an interlocutory matter.  So the question did not arise.  So that has no precedential bearing on this case.  They are the only matters I want to put in reply, your Honour.

HIS HONOUR:   Yes.  Mr Lenehan, you wanted an opportunity to respond to the new point about rule 25.03.3, do you?

MR LENEHAN:   I think I do, your Honour, just to ensure that your Honour is not led into misapprehension as to the position under the old rules.

HIS HONOUR:   Yes.

MR LENEHAN:   Your Honour will see I am reading from my learned junior’s laptop here.  There is, for example, a decision of Justice Kirby under the old rules in Re Carmody; Ex parte Glennan (2000) 74 ALJR 1148. That makes clear that the proposition that has just been put is wrong. Although it is true that there is no express provision under the old rules for dismissing that sort of application it was clear that there was not a requirement to grant an order nisi in all cases.

Justice Kirby talks about – and this perhaps points to the answer that I inadequately gave to your Honour before – that is what is the difference between the order nisi or order to show cause step and final relief and in paragraph 2 his Honour says that the requirement there was that the applicant had to show that he or she has an arguable case.

Your Honour will recall that Justice Gageler in the decision from which this appeal is purportedly put seemed to approach that application on a similar basis.  On page 3 in the penultimate paragraph he says “the plaintiff’s argument to the contrary is untenable”.  So that may then explain the different basis on which those applications are approached and the reason – the difference then between that and the final orders that are made by a court.

HIS HONOUR:   Yes, thank you, Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.

MR KLINE:   Your Honour, I do not want to have yet another go but ‑ ‑ ‑

HIS HONOUR:   Well, you do technically get a reply so ‑ ‑ ‑

MR KLINE:   I just wanted to say that notwithstanding my attempts to assist your Honour by answering those questions that you put, they are nonetheless theoretical questions.  Your Honour has before you two summonses.

HIS HONOUR:   I understand that.

MR KLINE:   I would ask you to rule only on those.

HIS HONOUR:   Yes, thank you.  I will reserve my decision and deliver reasons and orders at 9.30 next Wednesday.  The parties do not need to attend.  They will be notified of the reasons and orders at that time.

The Court will adjourn.

AT 10.29 AM THE MATTER WAS ADJOURNED