Priestley v Godwin

[2008] HCATrans 357

[2008] HCATrans 357

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C7 of 2008

B e t w e e n -

MICHAEL PRIESTLEY

Plaintiff

and

ANNWYN GODWIN (PARLIAMENTARY SERVICE MERIT PROTECTION COMMISSIONER)

First Defendant

HONOURABLE DAVID PETER MAXWELL HAWKER (SPEAKER OF THE HOUSE OF REPRESENTATIVES)

Second Defendant

SENATOR THE HONOURABLE ALAN BAIRD FERGUSON (PRESIDENT OF THE SENATE)

Third Defendant

HONOURABLE JUSTICE MARGARET ACKARY STONE (JUDGE OF THE FEDERAL COURT OF AUSTRALIA)

Fourth Defendant

HONOURABLE JUSTICE ANNABELLE BENNETT (JUDGE OF THE FEDERAL COURT OF AUSTRALIA)

Fifth Defendant

Application for order to show cause

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 OCTOBER 2008, AT 3.00 PM

Copyright in the High Court of Australia

__________________

MR M. PRIESTLEY appeared in person.

MR G.R. KENNETT:   May it please the Court, I appear for the first, second and third respondents.  (instructed by Australian Government Solicitor)

MR T.M. BEGBIE:   If your Honour pleases, I make a submitting appearance for the fourth and fifth defendants and, subject to your Honour’s leave, we would seek to be excused from further involvement in the proceedings.  (instructed by Australian Government Solicitor)

HIS HONOUR:   The Court notes that the fourth and fifth defendants submit to the orders of the Court.  Thank you for attending today, Mr Begbie, you are excused.

MR BEGBIE:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Priestley.

MR PRIESTLEY:   Your Honour, I wish to inform the Court where matters currently stand.

HIS HONOUR:   Just speak up, it is a little bit hard to hear.

MR PRIESTLEY:   Yes, sorry, I wish to inform the Court where matters currently stand.

HIS HONOUR:   I still have not heard you, I am afraid, you will just have to speak – these do not amplify, they record, so you have to speak up loud and clear otherwise I will not hear you.

MR PRIESTLEY:   Thank you.

HIS HONOUR:   It is a real problem, you know.  Barristers also talk far too softly.

MR PRIESTLEY:   Thank you, your Honour.

HIS HONOUR:   These are big spaces and we have all got to fill them.  Yes.  First of all, I would want to get on the record the affidavits that you are reading, so would you identify those and then I will have to ask Mr Kennett whether there is any objection to the material in the affidavits.

MR PRIESTLEY:   Your Honour, before the Court proceeds today I do not intend to read the affidavits for the moment because I wish instead to inform the Court where matters currently stand.

HIS HONOUR:   Well, is there any objection to Mr Priestley’s taking this course, Mr Kennett?

MR KENNETT:   No, your Honour.

HIS HONOUR:   Yes, very well, tell me where matters stand then.

MR PRIESTLEY: Well, yesterday, your Honour, I filed a section 78B notice of a constitutional matter in the Canberra Registry.

HIS HONOUR:   Yes.

MR PRIESTLEY:   On the same day the notice was served to the Commonwealth, State and Attorneys-General.

HIS HONOUR:   Was that notice different from notices already filed in these proceedings or does it raise fresh points?

MR PRIESTLEY:   The notice, your Honour, is a notice pursuant to section 78 in the proceedings.

HIS HONOUR: Section 78B, is it, raising a constitutional matter?

MR PRIESTLEY:   Yes, your Honour.

HIS HONOUR:   Yes.  You have raised constitutional matters before in these proceedings, I think?

MR PRIESTLEY:   In my affidavits and in my outline of submissions, your Honour.

HIS HONOUR:   I see, but you had not given the 78B notice, is that correct?

MR PRIESTLEY:   That is correct.

HIS HONOUR:   I see.  So yesterday you gave the 78B notice?

MR PRIESTLEY:   Correct.

HIS HONOUR:   As I understand it, Parliament has said that if that happens the proceedings have to come to a full stop so that the law officers have an opportunity to consider whether they wish to be heard in the matter.

MR PRIESTLEY: Such is the nature of the peremptory provisions of section 78B, your Honour.

HIS HONOUR:   I have always had a little bit of doubt as to whether Parliament can tell the courts to stop proceedings in the absolute manner that it does, but in any case, this proceeding also happened before Justice Stone, did it not, that you gave the 78B notice and her Honour – or was it Justice Bennett – one of the fourth or fifth defendants then stopped the proceedings and it was agreed that they could not proceed.

MR PRIESTLEY:   Your Honour, those were proceedings before Justice Gyles on 31 March 2008 where the court after hearing ‑ ‑ ‑

HIS HONOUR:   That is right.  Yes, I do recall reading it and I recall that the proceedings then stopped.

MR PRIESTLEY:   Yes.

HIS HONOUR:   Is that what you are saying I should do this afternoon?

MR PRIESTLEY:   I am simply bringing to your Honour’s attention the following matters.

HIS HONOUR: If you do, then section 78B purports to have its own effect.

MR PRIESTLEY:   Correct.

HIS HONOUR:   All right.  I had better hear what Mr Kennett says about it.  Mr Kennett, I have read all this material and it looks as though it was all a futile exercise.  If a 78B notice has been given is it not the express provision of the section that the proceedings shall stop until the law officers, within the time limited, have indicated whether they wish to be heard or not?

MR KENNETT: Your Honour, that is the effect of 78B where a cause pending in the Court involves a matter arising under the Constitution. My submission is that this present matter, as set out in the applications, does not involve such a matter.

HIS HONOUR:   Yes, but does not my determination of that really require me to make a determination on the very matter which the law officers might wish to be heard upon?  Assume I were against you, just assume in a case.  You have to think of this logically, if the Justice were against you then that decision would have been reached without having given the law officers of the States and the Territories and the Commonwealth the opportunity to have their say.

MR KENNETT:  Your Honour, there is an issue between these parties as to the validity of section 31A of the Federal Court Act.  That, as I understand it, is the constitutional issue that Mr Priestley says is present in the proceedings.  That issue, as it happens, has been argued in the Federal Court, but the initiating process in these present proceedings seeks nothing other than prerogative relief against the two judges, the fourth and fifth respondents, at least as I read it.

There is nothing in the initiating process here that raises a constitutional issue. Until something is removed to this Court involving that issue or there is an application for declaratory relief in relation to the section, or something of that kind, the proceedings do not involve, as section 78B puts it, a matter arising under the Constitution. That was going to be perhaps my main point in relation to many of the particular orders that Mr Priestley seeks in his summons, but it has come out earlier than I had intended or expected it to.

HIS HONOUR:   Why do you say the cause is not pending in this Court, given that a summons has been issued seeking the issue of constitutional writs directed to the named respondents?

MR KENNETT:  Your Honour, the basis for the application for those writs – at least as I understand it and I could be wrong of course – is the arguments that there is an apprehension of bias against the judges. Now, there has been in the Federal Court proceedings, as your Honour probably knows, motions for summary dismissal filed by the respondents which relied on or which at least cited section 31A. That has led to some argument which was heard by Justice Bennett on the validity of section 31A.

HIS HONOUR:   Yes, I have looked at that.

MR KENNETT:   That dispute has not yet come up to this Court, at least on the papers.

HIS HONOUR:   But would not the point that you are now putting to me have been equally good before Justice Gyles?

MR KENNETT:  Well, no, your Honour. If I had been there, there might have been something I could have put as to why it was not necessary to go to section 31A, but that is quite a different point and I will not trouble your Honour with it now. The fact is the notices were issued for the purpose of the Federal Court proceedings; proceedings were adjourned and then the constitutional argument was heard by Justice Bennett. I should say perhaps, just so that your Honour has more of the picture, her Honour handed down judgment as it happens this morning on that constitutional question and made a declaration that the section is valid. So there is now a decision of a superior court between these parties on that issue.

HIS HONOUR:   Is that the decision of Justice Bennett that was made after the affidavit of Mr Priestley was filed?  It is a new decision?

MR KENNETT:   It is a new decision handed down this morning.

HIS HONOUR:   That is not presently before this Court?

MR KENNETT:   No.

HIS HONOUR:   Well, would there not be a need in any case to have the process before the Court today amended to include that proceeding, otherwise undoubtedly Mr Priestley may want to come back at a later time.  I mean, would one not endeavour to ensure that all matters between Mr Priestley and the named defendants can be dealt with at the one hearing?

MR KENNETT:   There is merit in the last proposition that your Honour puts to me, of course.  I hesitate because there are issues, I would submit, as to what is the appropriate vehicle or what is an appropriate vehicle to test these issues.  I would submit that an appeal from the judgment that her Honour has handed down this morning would be a proper vehicle through which the question upon which her Honour has ruled could be ventilated.  Further, if Mr Priestley thought it appropriate, a ground of appeal could be that her Honour was biased and should not have heard the case.  That would crystallise the issues.

HIS HONOUR:   Assume he came to us seeking a constitutional writ directed to Justice Bennett, there would, would there not, in relation to her Honour’s decision that you refer to, be a right either of appeal to the Full Court of the Federal Court or to seek leave to appeal to the Full Court of the Federal Court within a certain limited time.

MR KENNETT:   Yes.

HIS HONOUR:   Would not this Court, in considering any application for a constitutional writ, adjourn that matter in order to see whether or not Mr Priestley is going to take that course, because my understanding of the Court’s holdings on this is that the constitutional writs being discretionary in their nature, you would ordinarily not deal with them until a party has exhausted any rights of appeal or to seek leave to appeal.

MR KENNETT:   Yes.  Your Honour, I was going to submit either this afternoon or at some appropriate time, that this application for orders to show cause should be dismissed and part of the reason for that is that there is another avenue which I have just mentioned by which the issues can be ventilated through the Full Court of the Federal Court and, ultimately, if it be so, this Court.

HIS HONOUR:   There are other matters that are before me today on the constitutional writs apart from the validity of the new provision for the dismissal of proceedings that are not reasonably arguable.  There is, for example, the issue of the alleged bias on the part of the two judges and my concern would be to be dealing piecemeal with this matter.  The way in which courts normally avoid proliferation of litigation is to deal with the whole matter at the one time.

So we have this situation that in respect of part of the matter that is before the Court today I am now on notice that there is another determination which, as you say, provides an appropriate vehicle for looking at the constitutional validity of the section of the Federal Court of Australia Act and I just feel disinclined to separate part of the matter and deal with part only. So when one adds to that consideration the operation of section 78B, the more appropriate course would seem to be to stand the matter over until within a given time we know whether any of the law officers intend to seek to take part in the proceedings pursuant to section 78B and whether in that time Mr Priestley has brought an application for leave to appeal or lodged an appeal against the decision of Justice Bennett, the latest decision.

MR KENNETT:   Yes.

HIS HONOUR:   Otherwise this Court is going to be dealing with part of the matter today and then part of the matter at some later stage.

MR KENNETT: Yes, I understand what your Honour says, but if the law officers look at the application that has been filed in this Court and at the amended application which Mr Priestley, I think, seeks leave to file, they will see applications for constitutional writ relief to be directed to two judges of the Federal Court. It will not be at all clear to the law officers how that gets to section 31A of the Federal Court Act and the validity thereof. The history of the argument in the Federal Court discloses that there is a dispute between the parties about that, but it just has not crystallised in these proceedings, in my submission. As things presently stand, the way to achieve what your Honour strives for, which is that the proceedings be dealt with all at once, I would submit, would be to dismiss these applications and allow the matter to come up through an appeal from what Justice Bennett has decided.

HIS HONOUR:   Justice Bennett’s decision as to the validity of – it is section 31A of the Federal Court of Australia Act?

MR KENNETT:   Yes.

HIS HONOUR:   That decision was handed down this morning.  Is that correct?

MR KENNETT:   Yes.  I do have a copy that I can give to your Honour.

HIS HONOUR:   You have a copy, Mr Priestley?

MR PRIESTLEY:   Yes, your Honour.

MR KENNETT:   We have had bound together several of the judgments that have been given in the proceedings below, and the one that I am referring to at the moment is behind the fourth tab in that little book that I have just given your Honour.

HIS HONOUR:   I think I have seen all of these but the fourth, and the fourth is a decision of 16 October 2008 of Justice Bennett.

MR KENNETT:   Yes.

HIS HONOUR:   Which was delivered this morning. Her Honour, in the orders, declares that neither section 31A of the Federal Court of Australia Act 1976 (Cth) nor Order 20 rule 5 of the Federal Court Rules is invalid, and orders the applicant to pay the respondent’s costs of the proceedings. Yes?

MR KENNETT:   Now, if her Honour – I know Mr Priestley wants to say something to your Honour so I will finish on this point perhaps, but if her Honour be biased or subject to an apprehension of bias, then I see no reason why that could not be a ground on which an appeal could be brought from what her Honour has decided.

That does not deal with the matters that have been raised in relation to Justice Stone, but any future involvement of her Honour in the case seems to be hypothetical at this stage.

HIS HONOUR: But was not the matter that was disposed of under section 31A of the Federal Court of Australia Act a matter which included the complaint of bias on the part of the judges concerned?

MR KENNETT: No, your Honour. The respondent’s summary dismissal motions relied on section 31A. Those motions have not been the subject of a determination as yet, but the preliminary issue of whether section 31A was valid, or is valid, was argued separately before her Honour and that is the subject of this judgment of this morning, so the Federal Court has not yet taken the next step of dealing with the summary dismissal motions.

HIS HONOUR: So has there been any exercise of the power under section 31A at all in the Federal Court?

MR KENNETT:   No, your Honour, there has not.

HIS HONOUR:   As you understand it, is the application for relief directed at the constitutional validity of that section in anticipation that the section might, in what you call the next stage, be utilised in order to dismiss the proceedings alleging that the respective judges were biased and on other grounds?

MR KENNETT:   Yes.  I have submitted to your Honour that the issue is not raised yet in this case, but to the extent that it is, as I understand it, it is raised in anticipation of a possible dismissal in reliance on the section, yes.

HIS HONOUR:   Yes.  I will hear what Mr Priestley has to say at this stage.  What do you say in response to Mr Kennett’s submissions, Mr Priestley?

MR PRIESTLEY: Your Honour, the judgment by Justice Bennett this morning has no relevance whatsoever to the proceedings being heard in this Court. Section 78B of the Judiciary Act does not specify the content of a notice nor the jurisdiction in which a notice is to be heard if the same notice is filed in or the subject of other proceedings.  In fact, your Honour, section 78 says little about these jurisdictional questions.

In Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd – and I will give the citations to the people recording this transcript - his Honour Chief Justice French, then a judge of the Federal Court made reference to the operation of section 78 and stated at 300 to 301:

in my opinion, there is a live issue in this case and although there seems to be some difference between the information which I have obtained from my own inquiries and that which Mr McKerracher has obtained from the Australian Government Solicitor, I understand that the same point has been the subject of a s78B notice in other proceedings in the Court. Whether that is so or not is in a sense immaterial to the determination I have to make. In my opinion this action is a cause in which there is a matter arising under the Constitution or involving its interpretation and that attracts the operation of s78B which means it is the duty of the Court not to proceed unless and until notice of the cause specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and the Sates and Territories and a reasonable time has elapsed.

HIS HONOUR:   That is so where a cause is pending in a Federal Court, including this Court, but the question is whether or not there is a cause pending until you can persuade me to make an order directed to the named defendants to show cause. The suggestion is that at the moment there is no cause pending, and the further suggestion is that the propounded cause not being pending is on the issues, other perhaps than section 31A, so unarguable that I should simply deal with it now.

MR PRIESTLEY:   Your Honour, there is a cause pending before this Court.  In accordance with the High Court Rules, a summons and outline of submissions were served on the defendants to show cause why the constitutional writ of prohibition should not be directed at the defendants.

HIS HONOUR:   Yes.  What do you ask me to do in this matter?  Can I just ask you to pause and think about where you are going in these proceedings?

MR PRIESTLEY:   Yes.

HIS HONOUR:   You apparently had a dispute, which I think you call an employment dispute, and this case is getting a long way away from the substantive matter.  Having seen this happen in other cases and having read your material, which is obviously the work of a very intelligent person, I just am anxious, because costs orders are being made, that you are getting a long way away from the substantive matter that you want to proceed with.

MR PRIESTLEY:   Through no fault of my own, your Honour. 

HIS HONOUR:   That may be so, but I would not want you to be going down this path unaware of the costs orders that are being accumulated, because it is an expensive business when an ordinary citizen gets involved in matters of this kind.

MR PRIESTLEY:   Yes, your Honour.  There is also a paramount question of the character of the administration of justice, your Honour.  These matters arose because, as you read in the affidavit, the allegation is that the respondents interfered improperly in the course of this matter by submitting orders that Justice Stone – orders that were made in chambers after the court had adjourned. 

HIS HONOUR:   You say that, but that is denied on the record and is said to be manifestly unarguable by reference to the record.  That is not a matter that, if such were established, this Court would ordinarily get involved in.

MR PRIESTLEY:   Your Honour, I am simply going through the sequence of events that have led me to seek a constitutional writ of prohibition in relation to Justice Stone.

HIS HONOUR:   Yes, I understand that. Anyway, the preliminary question is whether there is a cause pending and, if there is, what has to happen to it under section 78B, and your submission is you have filed a summons, it is a cause pending and my duty under section 78B of the Judiciary Act is to allow reasonable time to elapse for the giving of the notice and the response of the law officers.  So you want the matter adjourned?

MR PRIESTLEY:   Yes.  Also, to assist the Court in making such a determination, I shall at a later stage make application for a certiorari in relation to the judgment referred to this morning, in addition to her Honour’s dismissal of the fourth application for recusal.

HIS HONOUR:   Would you be seeking to consolidate that application with the cause that you say is pending before the Court at the moment?

MR PRIESTLEY:   Yes, your Honour.

HIS HONOUR:   And you would be seeking to have all of those matters heard at the one time?

MR PRIESTLEY:   Yes, your Honour.

HIS HONOUR:   You would submit that it is more efficient and in the interests of justice that the Court should have all the matters that concern you and the defendants before it at the one time so that it has first, your amendments and, second, any response from the law officers pursuant to the notice under section 78B in order that the whole matter could be dealt with by the Court at the one hearing.

MR PRIESTLEY:   Yes, your Honour.  There is an overall efficiency in that process, your Honour.

HIS HONOUR:   Yes.  How long would you take to put your pleading in order?

MR PRIESTLEY:   Twenty one days, your Honour.

HIS HONOUR:   What is the time specified by section 78B to allow the law officers the time to respond?

MR PRIESTLEY:   Your Honour, there is no timeframe specified except that a reasonable time must elapse.

HIS HONOUR:   What did you specify?  Did you indicate any timing in your 78B notice or not?

MR PRIESTLEY:   I did not, no, your Honour.

HIS HONOUR:   For the response.  You simply gave notice to the law officers?

MR PRIESTLEY:   Yes.

HIS HONOUR:   Yes.  Mr Kennett would no doubt know how long it is normal for these matters to be responded to.  Is there anything else you want to say?

MR PRIESTLEY:   Not for the moment, your Honour.

HIS HONOUR:   Thank you, Mr Priestley.  Yes, Mr Kennett.

MR KENNETT:   Your Honour, I am not aware of particular yardstick for a reasonable time.

HIS HONOUR:   They are all very well resourced; they have lots of money and very clever lawyers.

MR KENNETT:   Yes.

HIS HONOUR:   Presumably they could respond in 21 days.

MR KENNETT:   And they all have email, so communication is a great deal faster than it was when section 78B was first enacted.

HIS HONOUR:   Why is it not a sensible course to put Mr Priestley under the obligation to amend his summons, to raise any other matters that he wishes to raise, to give any further notices that are then required under section 78B of the Judiciary Act, to consolidate that application with the summons as presently before the Court and to return those matters and all of them before the Court some time in December, by which time the law officers would have had time to respond to the 78B notices.

MR KENNETT:   Your Honour, it leaves proceedings on foot in two courts.  It leaves a proceeding in this Court sitting awaiting events, and with more issues being added to it from time to time as things happen or do not happen in the Federal Court.

HIS HONOUR:   I have already indicated that Mr Priestley will face problems of getting this Court involved in the matter if he has a facility of appeal or an application for leave to appeal to the Full Court of the Federal Court which is outstanding, and that he will have to consider whether or not that is not first exhausted before he engages or attempts to engage the jurisdiction of this Court.  I think it is Aala’s Case, is it not, that says all constitutional writs are to be regarded, whatever the previous history of prerogative writs, as discretionary.

MR KENNETT:   Yes.

HIS HONOUR:   Therefore, whether this Court would grant an order nisi would be within its discretion, and if there were a possibility that an appeal, or application for leave to appeal might be pending in the Full Court of the Federal Court, then – I cannot speak for others but I, myself, would not be inclined to issue any constitutional writ at that stage, because the exercise of the discretion would seem to suggest that the issue of any such order nisi be postponed until the outcome of the proceedings in the Federal Court is concluded.

MR KENNETT:   Yes.  Time is running, of course, insofar as a possible appeal to the Full Court of the Federal Court is concerned.  I do not know Mr Priestley’s intentions in relation to that, but he may come before this Court having ‑ ‑ ‑

HIS HONOUR:   No, of course I do not know either.  But if were to fix this matter in December, then the time for the bringing of any Full Court proceedings by Mr Priestley, either against the earlier proceedings in the Federal Court or against the proceedings decided this morning, would by then have expired.  We would all know where he stands in relation to them, and if an appeal has been brought or an application for leave to appeal has been sought, then the likelihood would be that either on that ground, if pressed, the application for an order nisi would be refused by this Court or that application, if pressed, would be dismissed.

MR KENNETT:   Yes.  If the plaintiff were to come before this Court seeking to raise new matters which could have been the subject of an appeal, but no appeal had been instituted I would expect to be putting the submission that the failure to institute the appeal did not make a difference in terms of exercise of the Court’s discretion.

HIS HONOUR:   You put that on the record and Mr Priestley is on notice and he is also on notice of what I have said about the matter?

MR KENNETT:   Yes.

HIS HONOUR:   I just speak for myself, but once it is appreciated that the constitutional writs are discretionary and all of them are discretionary and once it is appreciated - as the Court has said - that they should not become a vehicle for bypassing the special leave process which would apply in the event that the matter were heard and determined by a Full Court of the Federal Court, then a litigant such as Mr Priestley would face an identified problem in persuading a Justice of the Court to issue an order nisi for a constitutional writ whilst the Federal Court proceedings were outstanding.

MR KENNETT:   Well, your Honour, the neater course, I would submit, is for these issues to come before this Court by way of an appeal from an actual decision of the Federal Court and that the best course is to dismiss these matters and allow the Federal Court proceedings to run their course, have an appeal from an actual judgment.  I will not detain your Honour by ‑ ‑ ‑

HIS HONOUR:   What do you say, though, about the submission that a cause is pending because a summons has been issued out of the Court?

MR KENNETT:   There is a summons, your Honour, seeking in effect procedural orders for the purpose of disposing of the application for orders to show cause.  The main application before the Court is the application for an order to show cause.  I am not aware of any cases dealing with the subject, but I would submit that all that is before the Court today at this moment is an application for the exercise of a discretion to allow a cause to go forward.  There is not a cause before the Court in the sense of a substantive proceeding.  It is rather analogous to a special leave application, I suppose.  There is an attempt to get ‑ ‑ ‑

HIS HONOUR:   Well, you have in your favour what the Court has said, that a special leave proceeding does not amount to commencing the appellate process in the Court.  It is simply an application knocking on the door, and I suppose you could say by analogy the application for an order nisi for a constitutional writ is knocking on the door.

MR KENNETT:   Yes, your Honour.

HIS HONOUR:   I have never myself felt very comfortable about the conclusion concerning special leave proceedings.  I can see the practicality of it, but I would not myself be inclined to extend that jurisprudence, at least without very full argument and persuasion.

MR KENNETT:   It is not apparent ‑ ‑ ‑

HIS HONOUR:   To me, the neater solution seems to face the problem of the section 78B notice by adjourning these proceedings until December, by fixing a timetable for Mr Priestley to bring his present proceedings into order to coincide the return of the matter to a reasonable time for the law officers to conclude their consideration of whether they will seek to intervene in these proceedings, either on the basis of the proceedings as they presently stand or, if another section 78B notice is required, the proceedings as enlarged to deal with Justice Bennett’s decision of today, and then to return all those matters before a Judge of the Court so that they can all be dealt with - Mr Priestley being on clear notice that he faces a real problem whichever course he adopts.

He faces a problem if he seeks leave to appeal or purports to appeal against the orders earlier made by Justice Stone and Justice Bennett or against today’s order of Justice Bennett, on the basis that this Court would simply allow the appellate process to run, but he also faces a problem if he does not appeal or seek leave to appeal from those orders, that the Justice before whom the matter is returned would take the view that the relief he is seeking, being discretionary, it should be refused because that was the correct course that he should have adopted.  You have put him on notice that that will be the argument you will be advancing.  So he just has to make some hard decisions.  So long as he understands that, then that is as much as can be done.  But that, it seems to me, is the neater way of proceeding, to use your adjective.

MR KENNETT:   Your Honour, if I said anything more I would just be repeating myself.

HIS HONOUR:   Yes, well I would not want you to do that, Mr Kennett.

MR KENNETT:   No.

HIS HONOUR:   Though it is always a pleasure to hear from you, it does not need to be repeated. Well, you have heard what I have said, Mr Priestley. I am inclined to stand this matter over to a date in December so that you can take the course of enlarging your application to this Court by reference to the proceedings that were determined this morning by Justice Bennett, giving any fresh section 78B notice if that is required, if you desire to do that, and then returning all of these matters before a single Justice of the Court in December for the purpose of determining them all together.

MR PRIESTLEY:   Thank you, your Honour.

HIS HONOUR:   If we look at dates in December, is the morning of Monday, 1 December convenient?  Would that give enough time to get your process in order for all of the matters that are pending?

MR PRIESTLEY:   Yes, it is, your Honour.

HIS HONOUR:   Does that suit you, Mr Kennett, or not?

MR KENNETT:   I am afraid I will be in New Zealand on that day, your Honour.

HIS HONOUR:   I see.  We should look for another ‑ ‑ ‑

MR KENNETT:   I come back that day.

HIS HONOUR:   Would 2 December be convenient?

MR KENNETT:   Yes, your Honour.

HIS HONOUR:   Would that be convenient to you, Mr Priestley?

MR PRIESTLEY:   Yes.

HIS HONOUR:   Will that give you enough time, Mr Priestley, to get your process in order?

MR PRIESTLEY:   Yes, it will. 

MR KENNETT:   Your Honour, I understand that this building is closing for refurbishment some time soon.

HIS HONOUR:   This building will be closed that day, will it?

MR KENNETT:   I do not know.  I was hoping your Honour would know, or the Court staff.

HIS HONOUR:   I think rather than fix the date now I might make inquiries about the availability of courts.  The Court will be sitting in Melbourne that week and I would be disinclined to add to the costs of a litigant who is self‑represented the burden of having to go to Melbourne, but it may be that a video link could be established between the Court here, which I understand will be functional during that period, and whoever is the duty judge, either sitting here or sitting in Melbourne.  But I will have to make inquiries about that as I do not have that information at the moment.  So the parties would be notified about the date in December, but it would be within the first or second week of December.

MR KENNETT:   If the Court pleases.

HIS HONOUR:   For reasons that have been sufficiently indicated in the exchanges between the Court and the plaintiff and counsel for the first, second and third defendants it is more convenient and appropriate that the matter before the Court today be adjourned until a date in December 2008 to be notified to the parties by the Registrar.

The plaintiff should, by Tuesday, 11 November, file and serve on the first, second and third defendants any amendments to the process in this Court that he proposes to rely on. He should, by that date also, provide any notices that raise any additional constitutional question which has not been already made the subject of a notice under section 78B of the Judiciary Act 1903 (Cth).

Both parties should provide to the Court and exchange short written submissions in respect of the course that the Court should take in respect of the process as so amended.  Such submissions should be provided to the Court by Tuesday, 25 November 2008.  The costs of the proceedings in the Court today will be costs in the proceedings then to be determined.  Is there any other order that you seek, Mr Priestley?

MR PRIESTLEY:   Your Honour, just some clarification in respect to the first order you made.  You refer to defendants number one, two and three.  I take it, your Honour, that you were also referring to defendants four and five?

HIS HONOUR:   Well, deferrals four and five – that is to say the judges of the Federal Court – have submitted to any order of the Court.  It would be a courtesy to serve them as well, but I imagine you would do that by serving your documents on the Australian Government Solicitor.  They must be served on the contesting defendants who are defendants one, two and three.  Is there anything else that you would ask me to add to those orders, Mr Kennett?

MR KENNETT:   No, your Honour. 

HIS HONOUR:   Thank you both for your assistance.  The matter is not part heard before me.  The parties will in due course be notified of a date in early December when the proceedings will be returned before the Court.  You should give careful thought, Mr Priestley, to getting involved in lengthy and expensive litigation.  I have seen it happen to people before.  It is something you have to think about because, without any pre‑judgment of the matter, you will get down the track and find you have a very big millstone around your neck, of costs potentially.  That has to be given really practical serious thought.

You also have to think about the matter on which Mr Kennett has put you on notice and which I also mentioned.  If the proceedings come back then, either way, you face a problem from the point of view of the discretion of the Court, which is referred to in Aala’s Case. 

MR PRIESTLEY:   Yes, your Honour.

HIS HONOUR:   That just has to be given consideration by you when you are thinking about the matter of the accumulating costs.

MR PRIESTLEY:   Thank you, your Honour.

HIS HONOUR:   The Court will now adjourn.

AT 3.48 PM THE MATTER WAS ADJOURNED