Priestley v Godwin & Ors

[2008] HCATrans 413

[2008] HCATrans 413

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

THE 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

THE HONOURABLE JUSTICE MARGARET ACKARY STONE

Fourth Defendant

THE HONOURABLE ANNABELLE BENNETT

Fifth Defendant

Application for order to show cause

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 DECEMBER 2008, AT 9.27 AM

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 defendants.  (instructed by Australian Government Solicitor)

MR M.S. BLUNN:   May it please the Court, I appear for the fourth and fifth defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Have they put in submitting appearances?

MR BLUNN:   Yes, they have, your Honour.

HIS HONOUR:   Do you wish to remain?

MR BLUNN:   If we could be excused, your Honour.

HIS HONOUR:   You may be excused, yes.  Thank you.

MR BLUNN:   Thank you, your Honour.

HIS HONOUR:   Now, Mr Priestley, this is your application for a show cause order.  I have read the papers and the submissions.  Is there anything you want to add to those?

MR PRIESTLEY: Yes, your Honour. In light of the written submissions of the first, second and third defendants which seek dismissal of the amended application, I desire to go immediately to the areas of dispute between us and respond to the misrepresentations by the defendants. Your Honour, in asserting that the plaintiff’s claim has no real prospect of success the defendants rely on section 25A of the Judiciary Act 1903 for the Court to dismiss the application as amended. The test to be applied by the Court upon which the defendants rely is the test under section 25A(2)(b) that the plaintiff:

has no reasonable prospect of successfully prosecuting the proceeding –

That section of the Judiciary Act corresponds to the summary judgment provisions in section 31A(2)(b) of the Federal Court Act.  The provisions in section 31A of the Federal Court Act were the subject of the constitutional challenge in the Federal Court in proceedings ACD1 and 2 of 2008.  The decision of the Federal Court in Priestley v Godwin No 3 on 16 October 2008 upheld the validity of section 31A of the Federal Court Act.  These provisions, your Honour, are also the subject of section 78B notices of a constitutional matter filed in these proceedings on 15 October.  Your Honour, there being no appeal from the decision of Justice Bennett in Priestley, section 31A and corresponding section 25A of the Judiciary Act is the law unless it is challenged in these proceedings. 

Your Honour, the defendants seek dismissal of the amended application without putting on evidence in affidavit form facts to refute the plaintiff’s claims and have made no disclosure of the grounds and the material facts upon which they rely in accordance with the principles in Boston Commercial and Jefferson Ford, the two Federal Court cases considered by Justice Bennett in Priestley.  In Boston Commercial, one of the cases cited in Priestley, the Federal Court said in relation to a defending party seeking to have an application dismissed on the grounds of no reasonable prospect of success:

properly construed, s 31A(2)(b) –

which is equivalent to section 25A(2)(b) of the Judiciary Act –

requires a person moving a motion for summary disposal (the moving party) to satisfy the court that there is no reasonable prospect of the party claiming relief (the plaintiff) successfully prosecuting the proceeding or the part of the proceeding in question.  Experience shows that there are cases which appear to be almost bound to fail yet they succeed.  As Dixon CJ once said . . . 

Experience of forensic contests should confirm the truth of the common saying that one story is good until another is told.

Your Honour, the defendants must, therefore, put on evidence by affidavit that excludes facts disclosed in the plaintiff’s affidavit essential to a claim for being established.  This is in respect of the orders made in court on 6 February 2008 by Justice Stone and the emails between the plaintiff and Ms Spivey which confirm those orders and in respect of the disputed orders purportedly signed and dated by Justice Stone on 6 February.

Your Honour, if there is to be a mini trial or inquiry on the affidavits under section 25A(2)(b) of the Judiciary Act, then the defendants are required to file affidavit evidence to support their assertion that the plaintiff’s claims “have no real prospect of success”.  This is in accordance with the principles discussed in Boston Commercial.  If the defendants are unable to disprove the particulars of the plaintiff’s claims, then the plaintiff asks that the amended application be referred to a Full Court.

On questions of law and errors of factual dispute between the parties, the Federal Court in Jefferson Ford stated based on the statutory construction of the “no real prospect of success” test in section 31A(2)(b) that:

if Jefferson Ford is able to establish that there was a real issue of fact or a real issue of law capable of being decided in its favour then, subject to the court’s discretion to determine the question of law, the matter ought to be allowed to go to trial in the ordinary way.

Your Honour, the questions of law to be decided by a Full Court are set out in the affidavits and the outline of submissions. Section 25A of the Judiciary Act and corresponding section 31A of the Federal Court Act constitute bills of attainder because they are specific and…..disguise legislative punishment. Bills of attainder are prohibited by the Constitution because they are aimed at a particular class of individuals and deprive them of a right or a benefit. They also authorise, as a consequence of the prescribed action, imposition of a liability.

Your Honour, in view of the reliance placed on section 25A(2)(b) of the Judiciary Act by the defendants to have the amended application dismissed by the Court as having no real prospect of success, I ask the Court to refer the validity of section 25A of the Judiciary Act to a Full Court for determination. However, before the constitutional validity of section 25A of the Judiciary Act can be determined, the Full Court must decide whether to grant a writ of prohibition against the fourth and fifth defendants.

HIS HONOUR:   Yes.  Is that everything you want to say?

MR PRIESTLEY:   No, there is not, your Honour, but I will allow the defendants to have their say.

HIS HONOUR:   No, proceed.  I want to hear what you have to say in support of your application for a show cause order and in opposition to their application to dismiss.  On an application for a show cause order the options before the Court include referral to the Full Court or dismissal of your application.

MR PRIESTLEY:   Yes.

HIS HONOUR:   So I want to hear everything that you have to say, both in support of your application for show cause order and against what they have to say in relation to dismissal.  I have read your submissions and I understand everything that you are saying to me.  It is familiar territory, having regard to the papers that I have gone through.  Is there anything else you want to say about that?

MR PRIESTLEY: Yes. I have some lengthy submissions to make, your Honour, in light of the misrepresentations made by the defendants. My first point is, your Honour, that the defendants have sought to have this application dismissed. The basis of that is not on the summary disposition under the Court’s inherent test of no reasonable cause of action, but on the test under section 25A(2)(b) of the Judiciary Act.  I am asking the Court to determine for itself the validity of that section of the Judiciary Act rather than rely on section 31A of the Federal Court Act.

HIS HONOUR:   Yes, all right.  You say it raises the same question.

MR PRIESTLEY: Yes. Your Honour, the basis of my application for an order to show cause are the grounds stated in my affidavit and submissions. The application is made, your Honour, in the exercise of rights created by section 21A of the Human Rights Act (ACT). Your Honour, this Court is exercising jurisdiction in the Australian Capital Territory.

HIS HONOUR:   All right.  This is your section 79 argument?

MR PRIESTLEY:   Yes.

HIS HONOUR:   I am familiar with that.  I have read your argument about that.  There is not much point in going over stuff I have read.  Just draw my attention to, if you like, the salient points of your argument.

MR PRIESTLEY: Your Honour, the salient points of the argument are these, your Honour, that those rights which are established under 14.1 of the ICCPR are incorporated into law of the Australian Capital Territory. Now, based on European jurisprudence and, in fact, the decisions in English courts, which have a similar right of a fair trial, those rights can be exercised before trial commences. If there is a likelihood of a breach of that article in the European Convention under Article 6 or under municipal law, section 21A, then the applicant is entitled to relief of prohibition, if there is likely to be a breach.

Your Honour, that is no different from what Justice Hayne had to say in relation to the availability of prohibition in Aala’s Case.  Justice Hayne said at paragraph 169:

it should be accepted that prohibition may issue to an officer of the Commonwealth if there has been, or will be, a denial of procedural fairness.

Your Honour, in the present case, Justice Bennett has continued to act without jurisdiction in breach of section 21(1) of the Human Rights Act and the principles of natural justice. So, your Honour, as I said, the first ground is the exercise of rights under section 21(1) of the Human Rights Act.  The second is under the principles in Aala’s Case that there will be a denial of procedural fairness in the judge continuing.  The third ground is the following, your Honour, and that is the Teoh principle of legitimate or reasonable expectations.

HIS HONOUR:   That simply says that an administrative decision‑maker in the exercise of a statutory discretion in an area covered by a convention to which Australia is a party would give a person to be affected by the exercise of that discretion a right to be heard before departing from, or making a decision that was inconsistent with the obligations assumed under the relevant international convention.

MR PRIESTLEY:   Yes.

HIS HONOUR:   It is a procedural fairness issue, is it not?

MR PRIESTLEY:   Yes, your Honour.  Section 31A is a statutory discretion given to the Court by Parliament.

HIS HONOUR:   Yes.

MR PRIESTLEY:   So there is no argument about under what authority or under what statutory power that decision by Justice Bennett would be made.  Your Honour, the third ground – and I invoke the Teoh principle of reasonable expectations – those reasonable expectations are based on the fact, your Honour, that the ICCPR, and in particular Article 14.1, is already part of domestic law, your Honour. It is included in Schedule 2 in the Human Rights and Equal Opportunity CommissionAct 1986 (Cth).

HIS HONOUR:   I think one thing is crystal clear, that we have not adopted the ICCPR as the law of Australia.  We have Acts that give effect to the various rights that are referred to in that Convention.  I mean, we have a Sex Discrimination Act, we have a Racial Discrimination Act and so forth, but we do not have a general statutory bill of rights.  The mere fact that the Convention is scheduled to the Act, this is crystal clear law, does not make it part of Australian law.  It does not have statutory operation. 

Now, of course, in the ACT, and you have made the point, there is a Human Rights Act which gives statutory effect to a range of human rights.  Similarly in Victoria there is a charter of rights that does the same sort of thing.  But we do not have an equivalent at the national level.  Of course, that is one of the debates that is presently going on as to whether that should happen.  So what appears in the schedule to the Human Rights Act is not the law of Australia.

MR PRIESTLEY: Your Honour, I accept that Schedule 2 is ineffective. I accept that. But my legitimate expectations, your Honour, are based on a speech given by the Commonwealth Attorney‑General.

HIS HONOUR:   All this reduces to is a question of procedural fairness, is it not?

MR PRIESTLEY:   Yes.

HIS HONOUR:   You are asserting an entitlement to procedural fairness.

MR PRIESTLEY:   Yes, I am.

HIS HONOUR:   Well, you have that entitlement in a court without the assistance of the ICCPR or the Human Rights Act (ACT). Procedural fairness in the Australian context does not depend upon that.

MR PRIESTLEY:   Your Honour, I agree with you, that may be part of the common law of Australia, but the procedures under the ICCPR allow me to make communications to the UN body responsible.

HIS HONOUR:   That is another issue.  That is outside the framework of this litigation.  You are entitled to assert an entitlement to procedural fairness.  You are allowed to argue that there has been a breach of procedural fairness and that is what I understand you to do and that, I understand, is part of the basis upon which you seek prohibition against the two judges.  So you do not need to get into this complicated territory of international law.

MR PRIESTLEY:   All right.  Your Honour, for the time being I will sit down and allow my friends ‑ ‑ ‑

HIS HONOUR:   All right.  That is the end of your submissions.  Now, look, there is one thing ‑ ‑ ‑

MR PRIESTLEY:   Not really.

HIS HONOUR:   You have to say everything you want to say in terms of your salient points, bearing in mind that I have read everything you have written. 

MR PRIESTLEY:   Yes.

HIS HONOUR:   Now, one thing I did want to ask you, and I am going to ask Mr Kennett this too, is really what this case is all about.  This case started off with your application, as I understand, for review of some decision adverse to you in relation to your employment in the Department of Parliamentary Services, is that correct?

MR PRIESTLEY:   That is correct.

HIS HONOUR:   I am not concerned about what the decision was.  You sought review by the secretary and then you were passed to the merit protection commissioner and then to the presiding office and so forth.  Then you sought reasons for decisions that you said had been made, or effectively refusals to review, by the parliamentary service merit protection commissioner and the presiding officers of the two Houses of Parliament.  You sought reasons pursuant to section 13 of the AD(JR) Act for what you said were their decisions and you commenced two sets proceedings in the Federal Court.  So what this is all about, ultimately, the pointy end of it, if I can put it that way, is your application to try and get an order for the production of reasons for what you say are those decisions. 

Now, what has happened is the other side have come back and said as a matter of law you are not entitled to reasons because – I am not saying this is right or wrong, I am just saying this is how they are putting it – there was no relevant decision to which the AD(JR) Act applies within the meaning of section 13.  I do not need you to go into argument on this.  I am just looking at the – secondly, that you did not have standing because you were not a person aggrieved within the meaning of the Act.  You could seek review of a decision.  It was all about that objection, those kind of threshold legal points, that this whole business with section 31A started.

MR PRIESTLEY:   Yes, your Honour.  But, your Honour, those legal thresholds have never been put to trial.

HIS HONOUR:   This is the point I am making to you, that in a sense everything has gone off – I mean, in a sense you could have heard – I am not quite clear why 31A was relied on at all.  I understand there was a problem with the timeframe for the objection as to competency and there was an extension sought, but all that that does, it does not prevent – even if an extension had not been granted, it would not prevent them from arguing those points at the hearing.  All that the objection to competency does, as I understand it, unless the rules have changed, is that if you do not file an objection as to competency and you get up on a jurisdictional point, that is, the other side gets up on a jurisdictional objection, then they might have to still wear the costs because they had not given notice.  That is all that that does.

This whole case, this whole section 13 case, is all about the questions of law.  I mean, the whole case collapses into the section 31A argument which is, were you entitled as a matter of law to get reasons either because it was a decision – or disentitled either because it was not a decision to which the AD(JR) Act applies or because you were not a person aggrieved.

MR PRIESTLEY:   Your Honour, let me go back to the date of the hearing on 6 February.  Before the court commenced I sat down with counsel and I said to counsel, “Look, I won’t go ahead with this provided the defendants give me a statement of reasons and whatever other documents they are willing to provide me”.  So I made the offer before the court ‑ ‑ ‑

HIS HONOUR:   That was the relief you were seeking in the Federal Court.

MR PRIESTLEY:   Well, I was seeking orders for the defendants to prepare and furnish the statement of reasons and material relevant to that decision.  Now, I made an offer to counsel to say, “You can provide me with a statement of reasons, but as to the information that’s relevant, well, that’s optional for the defendants, whether they want to give me that or not, but please give me a statement of reasons so that I may under section 5 of the AD(JR) Act commence judicial review proceedings”.  Now, your Honour, you mentioned notice of objection to competency.  Well, your Honour, I had not received my statement of reasons for there to be a notice of objection to competency.

HIS HONOUR:   The notice of objection to competency, as I understand it, was directed to your entitlement, in other words, an objection to your ability to seek a statement of reasons.  That is what they are on about and that is what was reflected in the end, whether appropriately or otherwise, in the section 31A motion.  They are saying you are not entitled to reasons because it was not a decision to which that Act applies and, secondly, because you are not a person aggrieved.

MR PRIESTLEY:   Your Honour, I have never read a case, Federal Court case, where notices of objection to competency have been filed in respect for request for a statement of reasons.  Those notices are filed once a statement of reasons have been provided and an applicant goes to the court under section 5 of the AD(JR) Act and seeks judicial review.  It is only under those circumstances, as governed by Order 54 of the Federal Court Rules, are notices of objection made as to the competency of that application.  Your Honour, I had not even got to that stage.  I have not even received my statement of reasons.

HIS HONOUR:   All right.  I am sorry, you are saying that the objection to notice of objection to competency applies only to a substantive application for review of a decision under the AD(JR) Act?

MR PRIESTLEY:   Yes, under section 5.

HIS HONOUR:   Yes, I understand. 

MR PRIESTLEY:   But, you see, your Honour, the question is, why did the defendants – and, in fact, these are objections that I wished to put to the judge at the time but the judge overruled my objections.  The question is, why would the defendants seek a notice of objection to competency having failed to comply with Order 54, because those notices of objections needed to be filed by 17 January, why would they go to the justice and ask for an extension of time when, in fact, in the end they did not file a notice of objection to competency.

In fact, your Honour, counsel at the time gave assurances to the court in good faith that those notices would be given to the court the next day.  In fact, your Honour, no such notices were made and, in fact, your Honour, I submit to the Court that that request for an extension of time goes to the improper purpose of the defendants and the collusive orders made by Justice Stone ‑ ‑ ‑

HIS HONOUR:   Well, look, I am not going to listen to this nonsense about collusive orders.  I just do not think there is anything in that.  But what I am really trying to focus on is just what this argument is all about.  This whole case, this whole debate about your entitlement which is raised in

the motions to dismiss can be raised in a variety of ways.  It can be raised in a substantive argument on the appeal.  It all collapses into what your actual application is about and their opposition to it.

This is not a criticism of you necessarily.   Please do not get me wrong.  What I am just trying to work out is the utility of any of this debate about section 31A and that goes back, in a sense, to the utility of the original motions, and so there is a bit on both sides of this.  What I might do is I might just hear from Mr Kennett and ask him a few questions about this because I just want to see if there is a way through this thicket without further litigation, apart from the substantive application that you have in the Federal Court.

MR PRIESTLEY:   Well, your Honour, before you do that, I just briefly want to make two quick submissions, your Honour.

HIS HONOUR:   Yes, all right.

MR PRIESTLEY:   I have further submissions to make on the misrepresentations of the defendants and, secondly, your Honour, may I suggest that the defendants sought to have my application struck out under section 31A alone because they sought final orders.

HIS HONOUR:   Yes, I know that.  I understand that.  Well, that has the effect of a final order, although there have been different views as to whether it is treated as an interlocutory or a final order for the purposes of leave to appeal, but that is in the Federal Court.

MR PRIESTLEY:   Yes.

HIS HONOUR:   Just take a seat for a second and I will hear from Mr Kennett.  Mr Kennett, what would have been debated or what would be debated on a motion under 31A that would not be debated in the – let me put it another way.  What would be debated in a substantive hearing of the application that would not be debated on a 31A motion?  What is the practical utility of this 31A motion?

MR KENNETT:   Your Honour, I was not involved in the decision to file that motion.

HIS HONOUR:   I am just asking now, just looking towards the future of this whole litigation, it just seems to have – it is like a little expanding universe.

MR KENNETT:   Yes.  Your Honour, I think the intention behind it was to end the proceedings early and without necessity for ‑ ‑ ‑

HIS HONOUR:   Well, it certainly has not had that effect.

MR KENNETT:   No, it has not.

HIS HONOUR:   I say this because I was conscious, towards the end of my time on the Federal Court, of an increasing enthusiasm from Commonwealth agencies, particularly I think in the migration area, to invoke 31A on cases which only involved issues of law anyway.  The question is, what is the difference?  Why bother with that unless you think that you are going to create an extra hurdle of leave to appeal that gets some tactical advantage which is hardly going exist because, if it is effectively a final judgment, the threshold for leave will be pretty low anyway, will it not?

MR KENNETT:   Yes. 

HIS HONOUR:   The question I want to ask is, what is the point of persisting with a 31A?  Why not just go straight to a hearing in the Federal Court?

MR KENNETT:   Well, your Honour, now that we have started it ‑ ‑ ‑

HIS HONOUR:   That is not an answer to my question.  I want to ask, what is the point of it?  What advantage does it give anyone to proceed to a 31A hearing as distinct from a hearing of the substantive application?  I cannot imagine that there is anything significant in the way of disputed facts in relation to the substantive application.

MR KENNETT:   I am not aware of any disputed facts in the substantive application or likely disputed facts.

HIS HONOUR:   It will turn on questions of law, will it not?

MR KENNETT:   As I understand it, yes.

HIS HONOUR:   Who has what responsibility under what Act and is there a decision and does he have standing because the effect of the decision or non‑decision in relation to him?

MR KENNETT:   Yes.  It might have been, in retrospect, better to proceed to an early final hearing rather than to rely on section 31A because the motion that has been filed and the argument that has been raised does not, as I understand it, rely on any expanded power to strike out conferred by section 31A.  It is standard General Steel type ‑ ‑ ‑

HIS HONOUR:   It is sudden death.  It is binary, is it not? 

MR KENNETT:   Yes.

HIS HONOUR:   There is no evaluative reasonable prospect decision involved there.  It is just a question of whether – I mean, you could have brought the same application under the old Rules, I suppose.

MR KENNETT:   It is an old‑fashioned General Steel type of application, as I understand it.

HIS HONOUR:   Manifestly untenable.

MR KENNETT:   Yes.

HIS HONOUR:   When you are in a question of law, you need not bother with that.  If there are no facts, you just go straight to the substantive hearing.

MR KENNETT:   Yes. 

HIS HONOUR:   Yes, all right.  How do you say I should deal with this application?

MR KENNETT:   I have set out the position in the written submissions which your Honour has probably read.

HIS HONOUR:   Yes.  Is there anything you want to add to those?

MR KENNETT: Your Honour, perhaps a couple of things. We do not rely, at least primarily, on section 25A of the Judiciary Act.  We rely on the discretionary nature of the relief that is sought and the discretion that this Court has long exercised in what used to be order nisi applications, now applications for orders to show cause to dismiss a case at this stage if it does not show substantial prospects of success or if there is an alternative avenue for pursuing the rights that are in issue.

There clearly are, I would submit, alternative avenues here available to Mr Priestley to raise the issues that he wants to raise.  We have not filed evidence because this is a preliminary hearing.  We seek to dismiss the proceeding at the threshold on matters of principle and without challenging Mr Priestley’s version of the facts, in effect.  If it went to a final hearing there would be evidence from our side, but that is why there is no evidence at this stage. 

As to the section 21A Human Rights Act argument, what your Honour put to Mr Priestley is really the simplest response to that, which is that one does not need to open the Human Rights Act or the ICCPR to assert a right of procedural fairness in an Australian court.  The fact that it is statutory does not take it out of the realm of the discretion that this Court can exercise on an application to show cause because maybe it is a statutory right, but it is being sought to be vindicated by the remedies of prohibition and it is the remedies that count in this sense.  So that does not take it outside the area of the discretion that this Court has always exercised to deal with matters at this stage.  Your Honour, those were the only matters that I wanted to add to the written submissions.

HIS HONOUR:   Right.  Now, I am going to hear in reply from Mr Priestley, but what I would like to suggest, I cannot direct it obviously, but what I would like to suggest – and I will give a decision on this next Tuesday, I will do it by video link from Perth so we will set it up there – is that you perhaps get some instructions as to whether or not the respondents in the Federal Court proceedings would consider, in effect, the abandonment of the 31A motion and simply proceeding to a substantive hearing.  Anyway, that is a matter for you and you have a week to think about that and also to communicate with Mr Priestley if there is any outcome.

MR KENNETT:   Yes.

HIS HONOUR:   You are obviously entitled to proceed with your 31A.  My comments are of a practical character and not by way of legal directions.

MR KENNETT:   I will get some instructions on those, your Honour.

HIS HONOUR:   Thank you, Mr Kennett.

MR KENNETT:   Your Honour, before I sit down, could I just mention that in the event that the application is dismissed, there will be an application from my clients for costs and we will, I think, wish to tender a letter in support of an application that part of those costs be on an indemnity basis.  That is in the event that we succeed, of course.  Would it be appropriate to do that in advance of next Tuesday or later?

HIS HONOUR:   It would, I think, yes.  I would rather deal with the whole thing, whichever way it goes, one way or the other.  One of the issues that might be relevant, I suppose, to the questions of costs is the very practical question that I have raised as to whether you have not set us upon this path.

MR KENNETT:   Would your Honour wish to have some written submissions on the issue even though they might be premature?

HIS HONOUR:   Nothing more than a page and give a copy to Mr Priestley and do that perhaps within the next – can it be done within the next 24 hours or so?

MR KENNETT:   Yes, your Honour.  May we file a two‑line affidavit annexing that letter?

HIS HONOUR:   Yes.  Why do I need a letter?  Was this just a threat of indemnity costs, was it?

MR KENNETT:   Yes, your Honour.

HIS HONOUR:   Yes, I do not think that makes any difference.  All right.  Yes, you can sit down.  Thank you.  Yes, Mr Priestley.

MR PRIESTLEY:   Your Honour, in view of what the defendants have said that they will be pressing costs, I wish to put on record that I will be pressing this application for an order to show cause, because, your Honour, as I said ‑ ‑ ‑

HIS HONOUR:   I am not suggesting you withdraw it.  I understand you are pressing the application.

MR PRIESTLEY:   Yes.  Well, in fact, I do press it because I make the point again, that the application that I have put to this Court is in the exercise of rights granted by the Legislative Assembly of the Australian Capital Territory.  Your Honour, those are statutory rights.  I wish also, your Honour, now to go to paragraph 2 of counsel’s submissions.  Counsel has assumed that the amended application I filed on 11 November encompasses all my claims.  However, counsel has not been properly informed and I wish to correct counsel’s understanding of the matter. 

The amended application does not contain all the elements of the case I wish to pursue.  The amended application I filed on 11 November is not the application I sought to file on 10 November 2008.  In compliance with Justice Kirby’s orders I sought to file an amended application and two affidavits in support dated 10 November 2008.  In brief, your Honour, the sworn affidavits and evidentiary material therein go to the orders signed and dated by Justice Stone purportedly on 6 February and the alleged abuse of the court’s process by the defendants in filing their notices of motion. 

There are two elements to the abuse of process.  The first is the purported orders, which is a separate category of abuse of process.  The second element concerns the filing of the notices of motion which constitutes an abuse of legal process.  This element concerns the content of the notices, the particular form of the notice of motion used by the defendants and the defendants’ deficient affidavits in support of the notices of motion.  These matters are addressed in the first of the two affidavits which Registry refused to accept for filing.  The second affidavit, which was not accepted for filing, concerns the decision of Justice Bennett to uphold the validity of section 31A of the Federal Court Act.

I note that counsel states in his submissions in paragraph 29 that the issue of the validity of section 31A is not “squarely raised in the proceedings”.  I point out to the Court that this issue is squarely raised in the second sworn affidavit which Registry refused to accept for filing.  It was my understanding of the orders by Justice Kirby that I was permitted to consolidate all my pleadings.  It appears that this was counsel’s understanding of the orders as well.  However, the reason given for not accepting the amended application was that the orders of Justice Kirby did not permit me to file any further affidavits.  According to the Registry, the only process I was permitted to amend was the application for an order to show cause that I had filed on 14 July.

Your Honour, I expressed the view to Registry that that was not my reading of the transcript of the hearing on 16 October and the orders of Justice Kirby.  I took the view that as the affidavits were not read in Court, as Justice Kirby had asked me to do, but I had declined to read them, I was permitted to file further evidence in affidavit form in pursuance of the orders of Justice Kirby to consolidate all my pleadings.  That is what the affidavits seek to do.  The affidavits are to be read in conjunction with the affidavits No 1 and 2 which were filed on 14 July 2008. 

The elements of the present case are only partially complete, as learned counsel has correctly observed, and that is not through any fault of my own in attempting to comply with the Court’s orders. Your Honour, I find no fault with the Registry staff because as officers of the Court they act with the authority of the Court. The Court’s refusal to entertain the affidavits for which I had permission to file pursuant to the orders of Justice Kirby is a denial of the applicant’s rights of a fair hearing under section 21(1) of the Human Rights Act 2004.

Your Honour, in Lobo Machado v Portugal the European Court of Human Rights ruled that the Convention right to a fair hearing:

“means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the Court’s decision”. 

I have the affidavits here, your Honour, and with the Court’s permission I seek to file the sworn affidavits which are dated 10 November 2008.  Your Honour, the Deputy Registrar is present in Court.  If you have doubts as to what I have said to be true, then you have only to ask the Registrar.

HIS HONOUR:   I will tell you what I will do, Mr Priestley.  I will receive your affidavits.  I will not treat them as filed in Court, but I will look at them and see whether they make any difference one way or the other and then decide what to do with them.  So you can hand them up.  Do you have them there?

MR PRIESTLEY:   Yes, I have.

HIS HONOUR:   Have you given copies to Mr Kennett?

MR PRIESTLEY:   No, I have not.

HIS HONOUR:   Can you arrange to do that?

MR PRIESTLEY:   I will do that now.

HIS HONOUR:   All right.  Thank you.  Mr Kennett, I am not going to treat these as filed or read in Court, but I will look at them and then decide whether or not – and you are proceeding on the basis that we deal with the case on the assumption that the factual case put by Mr Priestley be accepted for the sake of argument, as it were.

MR KENNETT:   Yes, your Honour.

HIS HONOUR:   Yes, all right.  Thank you.  Yes, Mr Priestley.

MR PRIESTLEY:   Your Honour, as I said, those affidavits contain evidentiary material and are matters of fact.  Your Honour, to continue, paragraph 6 of the defendant’s submissions misinforms the court in relation to the communications between Justice Bennett and the parties.  Justice Bennett has not heard argument from the plaintiff in respect of the summary dismissal motions and the judge has not made her intentions known about what she proposes to do.

HIS HONOUR:   Yes.  All she has done is to decide that 31A is valid.  The actual motions have not been heard.

MR PRIESTLEY:   No, your Honour, she has gone beyond that.  She has asked the parties to make “oral submissions” to her.  Now, your Honour, I was not privy to the oral submissions that were made by the defendants to Justice Bennett.  I sought on two occasions – I wrote to Justice Bennett and asked her for copies of those oral submissions, whatever those oral submissions were.  Your Honour, Justice Bennett is within a hair’s breadth of striking out my applications under section 31A.  I informed the court that the judge has continued the proceedings having refused two adjournment applications for this hearing to proceed without delay and without prejudice.  The justice has also refused four applications for her disqualification on the grounds of bias and the ‑ ‑ ‑

HIS HONOUR:   It was really one application on four variant grounds, was it not?

MR PRIESTLEY:   Yes. 

HIS HONOUR:   I know she labelled it four applications in the judgments.

MR PRIESTLEY:   Yes.  Justice Bennett has also been served two summonses in these proceedings to show cause but has in the meantime continued the proceedings in chambers without jurisdiction.  These matters are addressed in more detail, your Honour, in the application for interlocutory orders which are listed for hearing today.  Your Honour, the submissions of counsel in paragraphs 10 to 14 are misconceived.  They are misconceived because they rely on supposition and not on material facts before the Court as evidence by the plaintiff’s affidavits.  Your Honour, if the defendants had any evidence to present to this Court to refute my claim, or any evidence at all, I invited them two weeks ago to file evidence in affidavit form.

Your Honour, the plaintiff does wish to press allegations of misconduct and the factual basis for the allegations are set out in further detail in the affidavits which you have before you.  Your Honour, the submissions of counsel really make out a good prima facie case of abuse of process by the defendants.  The authorities on abuse of process require that there is an element of bad faith in the abuse of process.  There was such an element of bad faith by the defendants.

Your Honour, I merely note what counsel said to the judge when asked by Justice Stone in relation to the notices of motion.  This statement of good faith was given to the court by Ms Dowsett acting for the defendants who said “Your Honour, I personally received the papers on Friday afternoon and I hadn’t an opportunity to do that.  I can provide a draft to the court”, that is, draft notice of objection to competency, “by the end of this week.  I can provide it tomorrow in fact”. 

HIS HONOUR:   I am familiar with that.  You have all that in your first and second affidavits and the submissions.  I have read that.

MR PRIESTLEY: Your Honour, we are having a mini trial here, because section 31A and corresponding section 25A(2)(b) of the Judiciary Act are valid.  Your Honour, notices of motion for orders for summary dismissal under section 31A are filed by leave or as provided for by the Federal Court Rules under Order 10 rules 5 and 6 if the directions or orders are interlocutory, or under Order 20 rule 5.  The submission by counsel that it was open to the defendants to file notices of motion for orders under section 31A at any time has no procedural foundation.

The submission by counsel that Justice Stone entertained the notices of motion is not a basis for the court’s jurisdiction to hear the notices of motion.  It ignores the fact that I sought leave to file my own notices of motion pursuant to Order 20 rule 5 to strike out the notices as an abuse of process, but leave was refused by Justice Stone.  Your Honour, the refusal of leave by the judge was a denial of procedural fairness and goes to the allegations of the purported orders signed and dated 6 February 2008 by Justice Stone.  Your Honour, the judge’s refusal to grant leave was not the only time the plaintiff was denied procedural fairness.

HIS HONOUR:   Now, look, we are limited for time.  You have all this in your written submissions and you should be reasonably across the fact now that I have read the papers and I am familiar with the arguments and will give them careful consideration.  Now, is there anything else specifically that is not covered in your written submissions or that you want to briefly draw my attention to?

MR PRIESTLEY:   Your Honour, the reason why I, if you like, am proceeding on this basis, and I am quite happy for your Honour to adjourn this matter for a later hearing ‑ ‑ ‑

HIS HONOUR:   No, it is not going to be adjourned for later hearing.  I am going to deal with the show cause order, as I have indicated, by a ruling next Tuesday.  You have put in substantial affidavits.  You have put in written material.  I think I understand your arguments.  Now, is there anything specific and short that you think is fundamental that you need to draw my attention to?  A lot of this stuff is detail which is in your affidavit material.

MR PRIESTLEY:   Yes.  Well, there are two points.  First, the denial of procedural fairness, very briefly, your Honour, by Justice Stone and Justice Bennett was not inconsequential or immaterial.  The notices of motion were listed for hearing despite irregularities in the making of the

orders and as a result proceedings have been instituted in this Court, your Honour.  The other matter is, your Honour, that I sought an adjournment application at my hearing on 12 May with Justice Stone to make application for the constitutional validity of section 31A to remove to this Court.  The effect of Justice Stone refusing to recuse herself is that she denied me that adjournment application.

The other point, your Honour, goes to procedural fairness.  Justice Bennett refused to recuse herself and in refusing to recuse herself denied me again an opportunity to have the section 31A removed to this Court.  The other brief point I want to make, your Honour, is your Honour’s comments in relation to the orders that Justice Stone has made.  Your Honour, your comments about those orders are more than just a preliminary view that formed.  In fact, you have directed me not to refer to that word “collusive” which I have not done.  Your Honour, I think your Honour has prejudged the matter by those words in not wishing to hear any further evidence in relation to those matters.  Thank you.

HIS HONOUR:   All right.  Thank you, Mr Priestley.  I will give a decision on the application to show cause next Tuesday.  At this stage, unless you are otherwise advised, that will be 11.30 Canberra time.  I will be in Perth, so it will be 9.30 Perth time and we will set up a video link for that purpose.

I will now adjourn so that counsel can organise themselves for the next matter.

AT 10.15 AM THE MATTER WAS ADJOURNED