Re Rogers, Ex parte Gersten

[1996] HCATrans 3

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

NO M75 OF 1995

RE:JUDITH ROGERS

ex parte

JOSEPH MORRIS GERSTEN

DAWSON J (In Chambers)

AT MELBOURNE, WEDNESDAY THE 17 DAY OF JANUARY, 1996

HIS HONOUR:   Yes, Mr Hanks.

MR P.J. HANKS:   I appear for the applicant in this matter.

HIS HONOUR:   And there is no appearance for the respondents?

MR HANKS:   There is no appearance, your Honour.

HIS HONOUR:   They were given notice of the application?

MR HANKS:   They were certainly given notice by us, your Honour.

HIS HONOUR:   Yes.

MR HANKS:   And we received the communication; I think it was yesterday, from the Australian Government Solicitor, acknowledging that the matter was to be heard today.  I note ‑ ‑ ‑ 

HIS HONOUR:   And asking to be informed of the result?  Yes, I have seen that.

MR HANKS:   Yes, that - your Honour is aware of that - the substance of that communication.

HIS HONOUR:   Well now ‑ ‑ ‑ 

MR HANKS:   So this, yes, your Honour.

HIS HONOUR:   I have read the materials briefly.

MR HANKS:   Yes, your Honour.

HIS HONOUR:   So that you can assume that in making your submissions. 

MR HANKS:   Your Honour, it is our submission that this is a - in one sense, a relatively simple and straightforward application in that it is an attempt to invoke the original jurisdiction of the court under section 75(v).  That is, we seek remedy or relief by way of mandamus primarily against officers of the Commonwealth.  I take it that I need not address your Honour on the question of whether the respondents are officers of the Commonwealth?

HIS HONOUR:   No.

MR HANKS:   That is manifestly so. 

HIS HONOUR:   The big question is why it should not be remitted?

MR HANKS:   Well, your Honour, I am prepared to move directly to that point.  And that is a point that is exercising our minds directly.  May I put the problem before your Honour, reminding myself that I do have to come back to a point that may affect the exercise of any discretion that your Honour has in terms of granting the order nisi?  But I will come back to that in a moment if I might.  The question of remittal raises immediately the effect of part 8 of the Migration Act.  I regret that ‑ ‑ ‑ 

HIS HONOUR:   Well, I have tried to look through the Act but I must say that whoever drafted it had a warped mind.

MR HANKS:   Well, perhaps the - the Parliamentary Counsel was working to instructions no doubt, your Honour, and seeking to achieve a particular result.

HIS HONOUR:   It surely could have been achieved more simply.

MR HANKS:   Yes.  Well, I am moving directly to part 8 if I might, your Honour, for that is, in effect, the part that seeks to deal with remedial law, remedial matters.  I am moving, as it were, or leaving on one side, those parts of the Act and the Regulations that prescribe the substantive rights of applicants for visas and the obligations of the Minister and the Minister's delegates when an application for a visa is made.  Those are certainly, if I might endorse your Honour's observations, quite complex and tortuous, those substantive provisions.  The provisions dealing with remedial law are in part 8 and, amongst other things, your Honour will observe that they - in section 485 - exclude what would otherwise be the jurisdiction of the Federal Court under the AD(JR) Act and under section 39B but preserve in sub-section 1 such jurisdiction as the Federal Court has upon remittal or remitter under section 44 of the Judiciary Act.

HIS HONOUR:   But what does that mean?

MR HANKS:   Well ‑ ‑ ‑ 

HIS HONOUR:   Can I explain my difficulties?

MR HANKS:   Yes, your Honour.

HIS HONOUR:   And it might shorten the argument.  Section 485(1) provides that the Federal Court does not have jurisdiction in respect of judicially reviewable decisions, subject - no, that is what it provides does it not?  Yes.

MR HANKS:   Well, other than, your Honour.

HIS HONOUR:   Other than the jurisdictions provided by section 44.  Just  leave that to one side for the moment.  It does not have jurisdiction in respect of judicially reviewable decisions.  And then 486 provides that it does have jurisdiction with respect to judicially reviewable decisions.  And that jurisdiction is exclusive.

MR HANKS:   Yes.

HIS HONOUR:   Well does 486 cancel what is said in 485(1)?  Which is not made subject to 486.

MR HANKS:   No, it is not, your Honour.  There is certainly a trap there which the draftsman has laid for litigants and no doubt for the courts as well.

HIS HONOUR:   Well ‑ ‑ ‑ 

MR HANKS:   But what is the way out of the trap?  Well ‑ ‑ ‑ 

HIS HONOUR:   Well, let us put that to one side for a moment and say, well look, it does seem, by section 486, that the Federal Court does have jurisdiction with respect to judicially reviewable decisions.

MR HANKS:   Yes.

HIS HONOUR:   One goes to section 475(1)(c) and judicially reviewable decisions include other decisions made under the Act or the regulations relating to visas.

MR HANKS:   Yes, your Honour.

HIS HONOUR:   Now, the decision you are concerned with would fall within 475(1)(c) would it not?

MR HANKS:   Quite so, your Honour.  Yes.  That is beyond dispute that the decision which we seek to attack is a judicially reviewable decision.

HIS HONOUR:   Well then if one comes back to 485(1) and to the words:

Other than the jurisdiction provided by this part or by section 44 of the Judiciary Act -

It would seem to suggest that the preceding words are not to affect the power of this court under section 44 of the Judiciary Act.  It gives to it power to remit ‑ ‑ ‑ 

MR HANKS:   All or part of the matter.

HIS HONOUR:   ‑ ‑ ‑ where the Federal Court, in this instance ‑ ‑ ‑ 

MR HANKS:   As jurisdiction with respect to the subject matter and the parties.

HIS HONOUR:   Well now is the jurisdiction which the Federal Court has to the respect of the subject matter and the parties - that is the subject matter and the parties to the application to this court - removed by section 485?  Or is it conferred by section 486?

MR HANKS:   Well, your Honour, the removal by 485 is, in my submission, a partial removal.  It is not a complete removal, because of the qualifying words which appear or the modifying words which appear at the end of that section following the introductory words: "Other than".  What the - as it were - the principal proposition in 485 is to declare that the Federal Court does not have any jurisdiction in respect to judiciary reviewable decisions other than - it goes on to say:

The jurisdiction provided by this part -

HIS HONOUR:   Yes, I see.

MR HANKS:- or by section 44.

So it would appear that the legislation contemplates two sources of jurisdiction.

HIS HONOUR:   Yes, I follow.

MR HANKS:   Yes.

HIS HONOUR:   That, in other words, the jurisdiction with respect to judicially reviewable decisions is only the jurisdiction which is provided by this part and such remitter is permissible under section 44.  Well then, what does section 486 do?

MR HANKS:   Its purpose, your Honour, is to provide only that such jurisdiction as the court has - and 486 is not a conferral of jurisdiction - but such jurisdiction as it has is to be exclusive of the jurisdiction of all courts other than that of this court under section 75.

HIS HONOUR:   Well that would clearly be so if were expressed in other words.  The jurisdiction of the Federal Court with respect to judicially reviewable decisions is exclusive.  But it is not what it says.

MR HANKS:   Well, perhaps your Honour, it does state two propositions.  One, that the Federal Court has jurisdiction.  Although that, with respect ‑ ‑ ‑ 

HIS HONOUR:   But that is exactly what 485 does in a limited way.

MR HANKS:   Yes, your Honour.  And one might think that that was what section 476 did by providing that application might be made to the Federal Court for review of a judicially reviewable decision on the narrow grounds there specified.  So one would have thought that in the absence of that first proposition in 486 that the Federal Court did have jurisdiction in any event.  So that the first proposition is no more than an emphasis of the proposition that will be derived from the legislation in any event.

HIS HONOUR:   One of the things that the court does have jurisdiction to do under section 476 is to make a declaration.  Is that not so?

MR HANKS:   That would derive from section 481 your Honour for that ‑ ‑ ‑ 

HIS HONOUR:   Is it 481?

MR HANKS:   Which specifies the orders that the court may make.

HIS HONOUR:   Yes.  An order declaring the rights of the parties in respect of any matter to which the decision relates.

MR HANKS:   Yes. 

HIS HONOUR:   And a declaration is part of the relief which you claim in this court is it not?

MR HANKS:   It was part of the relief claimed in the proceeding commenced by writ, your Honour.

HIS HONOUR:   Yes.

MR HANKS:   Of course at the moment we are dealing with the application for the order nisi.  At least that is my understanding; that is the case.  It would be my general submission that if either of the matters that are loosely described "pending before this court" were to be remitted to the Federal Court, the ‑ ‑ ‑ 

HIS HONOUR:   Either of the matters before this court?

MR HANKS:   Yes.  If either of the matters.  When I use the word "pending", I am using that loosely, your Honour.  There is a matter which is being commenced by writ and statement of claim.

HIS HONOUR:   In this court?

MR HANKS:   In this court.  There is such a matter.  I will return to that if I might.  But if I might perhaps foreshadow what I was about to say on that.  We are proposing to discontinue that if the order nisi is granted, pursuant to undertakings that we have given to the respondents.

HIS HONOUR:   But why should not - if there is any difficulty about remitting this matter because it is an application for prerogative relief, which I suppose it might be argued was precluded by part 8 in relation to judicially reviewable decisions in proceedings in the Federal Court - why should not the action be remitted to the Federal Court and the application for prerogative relief refused on the basis that that is the appropriate course?  I mean, to be quite frank with you, this is not an appropriate matter to be heard in the first instance in this court.  And if I can avoid that consequence I will do so.

MR HANKS:   Quite so.  And I would not seek to contest that general proposition, your Honour.  Your Honour will understand that the applicant seeks to invoke the jurisdiction of this court because the other jurisdiction has effectively been closed.  That is the jurisdiction which was otherwise available under the AD(JR) Act or section 39B.

HIS HONOUR:   But why is not there a jurisdiction under division 2 of part 8?

MR HANKS:   Because, your Honour, the grounds on which the applicant seeks relief are grounds that are expressly excluded by section 476 sub-section (2).  The attempt ‑ ‑ ‑ 

HIS HONOUR:   But what about section 476(1)(d)?

MR HANKS:   Your Honour, that too is narrowed by 476 sub-section (3).   Your Honour will see that it has a specific meaning expressed in the first three paragraphs excludes the matters that are covered by the remaining four paragraphs. 

[9.51am]

HIS HONOUR:   Yes.

MR HANKS:   So that the initiation of proceedings in this court is a course to which the applicant has, in effect, been compelled because other avenues have been foreclosed through those provisions to which I have taken your Honour.  Now, may I go back to respond to the question which your Honour raised about the possibility of remitter of the written statement of claims?

HIS HONOUR:   I think I have raised all my difficulties now.

MR HANKS:   I would be surprised, your Honour, there may ‑ ‑ ‑ 

HIS HONOUR:   All that I am aware of at the moment.

MR HANKS:   Yes.   We apprehend that the remitter of that matter would run into much the same problems as problems that would attend the remitter of the 75(v) matter or the order nisi.  The problems, your Honour, flow from subsection (3) of section 485.  If a matter relating to a judicially reviewable decision is remitted to the Federal Court under section 44 the Federal Court does not have powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this part.

Now, on one reading, your Honour, that might be thought to as an attempt by the parliament to limit the grounds that might be agitated in a remitted matter, on one reading.  On another reading, it might be thought to be merely an attempt to restrict the relief which the Federal Court could order where such a matter was remitted under section 44.  It may be significant, your Honour, that the subsection to which I have taken you subsection (3) uses the terminology powers rather than jurisdiction whereas subsection (1) refer t jurisdiction.

If that distinction is significant, then it is likely, in my submission, perhaps even certain that the effect of section 485(3) on remitter is not to narrow the grounds that might be agitated for relief, but to narrow the relief which the court might grant once grounds are made out.

HIS HONOUR:   So that in other words, one may be able to obtain a declaration for instance.

MR HANKS:   Yes, or ‑ ‑ ‑ .

HIS HONOUR:   Which is a power.

MR HANKS:  Yes, your Honour, or going back to section 481 an order directing any of the parties to do any act which the court considers necessary to do justice between the parties.  One might suggest that such an order would be a reasonable approximation of mandamus, a reasonable approximation.  Certainly, it could be framed so as to have precisely the effect of a writ mandamus.  I do not know whether I have managed to, as it were, sketch out the difficulties.

HIS HONOUR:   Well, I understand that point.  I do not - your submission is, is it, that powers related to the relief which may be granted and not to the grounds?

MR HANKS:   Well, that is my submission, although it does strike me that it may be premature for me to advance that submission in front of your Honour.

HIS HONOUR:   Well, it does relate to whether it is appropriate to remit the matter or not.

MR HANKS:   Yes.   Yes, your Honour.

HIS HONOUR:   And I have a power to remit, whether you make applications for it or not.

MR HANKS:   Quite so, your Honour, yes.  I understand that the court may do so of its own motion.  Yes, I would advance that submission that if my submission would be, to put it as simply as I may, that the effect of section 485 as it stands in the context of part 8 is to recognise that the Federal Court may derive jurisdiction in respect of a judicially reviewable decision through an order of this court under section 44 of the Judiciary Act and where the Federal Court so derives its jurisdiction, that jurisdiction is untrammelled by any of the provisions of part 8 but the relief or remedies which the court may grant described in subsection (3) as powers of the court are limited to those which appear in section 481 of the Migration Act.

Now, if that submission is accepted, there is no real barrier that I could raise in opposition to the exercise of this court's power.  There are no grounds that I could advance which I believe would be persuasive against your Honour exercising the section 44 remittal power.  If my submission is not accepted then there are real grounds against such a - as it were, against such an exercise of the power in section 44.

HIS HONOUR:   It is difficult to see how the word "powers" could embrace grounds, is it not?

MR HANKS:   Yes, your Honour, it is difficult to see how ‑ ‑ ‑ 

HIS HONOUR:   Particularly ‑ ‑ ‑ 

MR HANKS:   It is - we would say that the Act itself, that is the Migration Act, clearly recognises that distinction.  It deals with grounds in section 476, it deals with the powers of the court in relation to judicial reviewable decisions in section 481 and it deals with jurisdiction in both section 485 subsection (1) and section 486. 

HIS HONOUR:   Maybe then come back to subsection (1) of section 485.

MR HANKS:   Yes, your Honour.

HIS HONOUR:   Does that mean that the Federal Court does have jurisdiction in respect to judicially reviewable decisions if section 44 of the Judiciary Act is invoked?

MR HANKS:  In my submission, yes, and that jurisdiction derives from section 44.  The purpose of it, the reference ‑ ‑ ‑ 

HIS HONOUR:   And it is a jurisdiction in addition to the jurisdiction provided by this part; must be, it must.

MR HANKS:   It is, your Honour, yes.  Definitely, your Honour, yes.  It has a separate source and that source is the Judiciary Act.  Your Honour, there are observations ‑ ‑ ‑ 

HIS HONOUR:   What is the history of these sections?  I have some dim memory that - how shall I put it - there was a desire because of some decisions that had been to exclude the Federal Court from this area at all events ‑ ‑ ‑ 

MR HANKS:   That is my understanding, your Honour.  These provisions were enacted I recollect in 1992 as part of - I think the legislation was entitled: The Migration Reform Act and it included a number of changes to the 1958 Migration Act.

HIS HONOUR:   Some of which we held invalid in a fairly recent decision.

MR HANKS:   Yes, your Honour.   Yes.

HIS HONOUR:   But that decision does not bear on this question at all.

MR HANKS:   No, it does not.  I think that is the case.  Amongst the changes that were introduced in the migration format were some of the substantive changes to which I have alluded earlier in my submissions and which your Honour mentioned but the changes which, as it were, dress up the what were formally discretions in terms - and now express them as obligations, the minister is obliged to make certain decisions, the minister must grant a visa in certain circumstances, whereas formally it was discretionary now it is expressed in obligatory language.  Those changes were made but the changes in part 8 were indeed, as I understand it, a legislative response.

HIS HONOUR:   To leash in the Federal Court.

MR HANKS:    To leash in the Federal Court primarily because under the AD(JR) Act practitioners and judges had found new possibilities in such grounds as denial of natural justice and irrelevant considerations, unreasonableness; matters of that type and it was said by some observers that the Federal Court was instituting a form of merits review rather than judicial review in the guise of identifying some relevant consideration that the minister had failed to take into account or some irrelevant consideration that the minister had taken into account they were indeed correcting factual errors rather than legal errors.  That was the rhetoric if I might put it in those terms, your Honour.

HIS HONOUR:   There may have been some foundation for that.

MR HANKS:   There may have been, your Honour, yes, but that was, as I understand it, the purpose of this legislation.

HIS HONOUR: But then those who drafted the legislation met with the difficulty of 76 and 75 of the Constitution.

MR HANKS:  Yes.   And also met, your Honour, with the what one might describe as the practical difficulty, 75 being inviolate of the jurisdiction of this court being beyond reductions by the parliament.

HIS HONOUR:   This court being flooded with applications of the sort that are not appropriate to be heard in this court.

MR HANKS:   Yes, your Honour.  Yes.

MR HANKS:   And it may be that for that reason, I am not of course privy to the considerations that motivated ‑ ‑ ‑ 

HIS HONOUR:   Does the second reading speech reveal anything?

MR HANKS:   No, your Honour, not to my knowledge and your Honour will perhaps accept the second reading speech is not always the best source for explanation as to the intention of parliament, not always.

HIS HONOUR:   Very seldom is, yes.

MR HANKS:   It may be that the draftsman was instructed to ensure that the remittal jurisdiction of the Federal Court derived from section 44 was left relatively unscathed so that there would be a practical solution to the serious problem to which your Honour has alluded namely, the flood of applicants seeking to agitate naturally justice grounds, for example, who would immediately seek to invoke the original jurisdiction of the court.

HIS HONOUR:   Well, then it becomes a little clearer, does it not?  Because what the draftsman was faced with was the difficulty of removing jurisdiction from the Federal Court.

MR HANKS:   Yes.

HIS HONOUR:   But at the same time wanted to preserve it for the purposes of section 44 application and in the light of that, what subsection (1) really says is: well, look, other than for the purposes of section 44 application, the Federal Court's jurisdiction is confined but in reading section 44 where it requires the Federal Court to have jurisdiction with respect to the parties and subject matter, that is the parties and subject matter which relate to the proceedings in the High Court, then it will have that jurisdiction but only for that purpose.

MR HANKS:   Yes.

HIS HONOUR:   And then the problem is what relief should it grant on a remitter and the answer to that is; well, at least if relief is not subject matter and parties which it would seem not to be, we can restrict that and that is what we do in subsection (3).  

[10:06am]

MR HANKS:   The restriction that is ‑ ‑ ‑ 

HIS HONOUR:   Now, if that is so ‑ ‑ ‑ 

MR HANKS:   Yes. 

HIS HONOUR:   ‑ ‑ ‑ I would, whether you reply or not, remit the whole application to the Federal Court. 

MR HANKS:   Well, I hear what your Honour says.  Your Honour, that sounds like a contingent proposition. 

HIS HONOUR:   Well, I have merely been putting it to you and if you want to argue against those propositions, by all means do so. 

MR HANKS:   I do not want to argue against those propositions because, your Honour, they coincide with what I think are the proper submissions that I should make from the bar table as to the reading of part 8. 

HIS HONOUR:   If they are not correct, then the effect of section 485 is really to remove any jurisdiction under section 44 to remit, in practical terms. 
MR HANKS:   Yes, your Honour.  Yes, it is clear that 485 does not seek to do that ‑ ‑ ‑  

HIS HONOUR:   Yes. 

MR HANKS:   ‑ ‑ ‑ I would say.  Now ‑ ‑ ‑ 

HIS HONOUR:   So, in these modern times where we adopt a purposive approach to interpretation of statutes, it would seem that the propositions I put to you are sustainable. 

MR HANKS:   Yes, your Honour, I would so submit that they are sustainable.  

HIS HONOUR:   On the other hand, if they are not, then clearly you are left without relief in relation to the matters which you want to agitate ‑ ‑ ‑ 

MR HANKS:   Yes, your Honour.  I do appreciate the risk ‑ ‑ ‑ 

HIS HONOUR:   ‑ ‑ ‑ other than in this Court. 

MR HANKS:   Yes, there is a risk.  Now, it is - I think it would be my - I really should not talk about what advice I should give my client.  I will just say to your Honour that it is a risk that your Honour's current reading and my submissions as to the meaning of these provisions, may ultimately be proved to be mistaken.  In that case remitter of either or both of these proceedings to the Federal Court will leave my client ‑ ‑ ‑ 

HIS HONOUR:   They cannot be found mistaken in the Federal Court, can they? 

MR HANKS:   No, your Honour. 

HIS HONOUR:   Although, ultimately, it may come to this Court in a form in which it can be decided. 

MR HANKS:   Yes.  If those - if that reading is, as no doubt I am sure it will be, your Honour, clearly expressed by your Honour, then no, they cannot be found to be mistaken in the Federal Court. 

HIS HONOUR:   On appeal to, presumably, this Court, or a Full Court of the Federal Court.

MR HANKS:   Yes. 

HIS HONOUR:   Well, even then, perhaps not.  On appeal to this Court, and that ‑ ‑ ‑ 

MR HANKS:   It may be that the ‑ ‑ ‑ 

HIS HONOUR:   ‑ ‑ ‑ would be an appropriate case ‑ ‑ ‑ 

MR HANKS:   Yes, your Honour. 

HIS HONOUR:   ‑ ‑ ‑ presumably to be determined by this Court. 

MR HANKS:   Yes, quite so. 

HIS HONOUR:   Or, no doubt, one could appeal any decision I make to remit. 

MR HANKS:   Yes. 

HIS HONOUR:   That would be another way to test it. 

MR HANKS:   That would test the government's view, as it were, as to what these provisions do mean, or in their view were intended to mean. 

HIS HONOUR:   On the other hand, we do not have the benefit of their views this morning.  They may accept that interpretation.  They have not indicated one way or the other? 

MR HANKS:   No.  I can only say, your Honour, that I have discussed this matter informally with counsel for the Minister from time to time, and I do not think I should go beyond that. 

HIS HONOUR:   Yes.

MR HANKS:   I have discussed it with them. 

HIS HONOUR:   Yes, well, there is nothing more to be said at this juncture, is there? 

MR HANKS:   No, there is not, your Honour.  There are some other matters I need to raise with your Honour, because I have undertaken to raise them. 
HIS HONOUR:   Yes. 

MR HANKS: Your Honour will understand that initially the applicant, that is on 17 November last year, commenced proceedings in this Court by writ and statement of claim under 75(iii) - seeking to invoke the jurisdiction under 75(iii) of the Constitution against the respondents. That matters is M72 of 1995.

HIS HONOUR:   That is against an officer of the Commonwealth just simply on that basis? 

MR HANKS:   Against persons being sued on behalf of the Commonwealth. 
HIS HONOUR:   Yes. 

MR HANKS:   Rather than officers of the Commonwealth. 

HIS HONOUR:   Yes. 

MR HANKS:   The respondents immediately took the objection that the invocation of that jurisdiction was inappropriate, and took the view in communication with my instructing solicitors, that if we sought to agitate the present matter in the High Court, it should be done by an application for order nisi for mandamus.  We resisted that proposition, but in order to avoid a fight over what we thought was a technical point, we undertook to make this application to your Honour for an order nisi, thereby seeking to invoke the jurisdiction under 75(v), and we similarly undertook that if the order nisi were granted, we would discontinue M72 of 1995. 

HIS HONOUR:   Yes. 

MR HANKS:   We also undertook that we would not move for judgment in default of appearance in M72 of 1995, the defendants not having entered an appearance as yet, for they wish to preserve their rights to seek to have those proceedings struck out.  But we undertook that we would not move to enter judgment in default of their appearance without giving them five clear days' notice. 

HIS HONOUR:   Why should not the action be remitted as well?

MR HANKS:   We are content with that, your Honour, but ‑ ‑ ‑ 

HIS HONOUR:   But there is no application - it is not before me at the moment, but ‑ ‑ ‑ 

MR HANKS:   Subject to one thing, your Honour, we have undertaken to discontinue it if your Honour grants the order nisi. 

HIS HONOUR:   But if I were to remit the matter I would remit the application.  I would not grant the order nisi.  I would leave that to the Federal Court.  That raises some problem because an order nisi is not the form of relief which is contained within the description of powers. 

MR HANKS:   Is it not open to your Honour to grant the order nisi and remit the matter thereafter?

HIS HONOUR:   Yes, that may be the desirable course. 

MR HANKS:   That would be perhaps, your Honour, a neater solution.  It would permit us then to honour the undertaking that we gave to the defendants in M72 of 1995. 

HIS HONOUR:   Yes. 

MR HANKS:   To discontinue that matter, and it would mean that there was then a single proceeding in the Federal Court.  Of course we also do propose to discontinue the Federal Court proceeding, which is currently part-heard.  I will put that another way, your Honour. 

HIS HONOUR:   Yes. 

MR HANKS:   An application to amend that proceeding is currently part-heard before Sundberg J. 

HIS HONOUR:   Yes.  That was an application for? 

MR HANKS:   That was an application initially, under the AD(JR) Act, and section 39B of the Judiciary Act. 

HIS HONOUR:   Yes, and you were met with part 8? 

MR HANKS:   Indeed.  Very forcefully.

HIS HONOUR:   And you sought then to do what? 

MR HANKS:   To amend it, your Honour, so as to add, or should one say substitute, various grounds specified in part 8.

HIS HONOUR:   Yes, I see. 

MR HANKS:   And so as to make it an application, in part at least, under part 8, and so as also - perhaps your Honour does not wish to know all the detail, but there was - we think that there is part of the AD(JR) Act which has survived part 8 in relation to conduct rather than in relation to decisions.  The argument on that point is not overwhelmingly persuasive, perhaps, but it is an argument that we are advancing in front of his Honour.  But if your Honour were to grant the order nisi and remit that matter, we would discontinue the AD(JR) proceedings.  I think we would conclude that we have resolved most of our procedural difficulties by taking that course. 

HIS HONOUR:   Yes. 

MR HANKS:   There is correspondence on the file in M72 of 1995, correspondence between the solicitors.  There are two letters, I believe, here on that file and we ...(indistinct)... draw your Honour's attention to that correspondence.  I think I have fairly summarised it, although I have only summarised it in my submissions. 

HIS HONOUR:   The only other matter I have raised is whether you think that it is appropriate for me if I come to that conclusion to make an order in the circumstances, and an order for remitter, without hearing from the other side. 

MR HANKS:   Yes, it is appropriate for you to do that, your Honour, in our submission.  An application of this type may be made ex parte.  The respondents are aware of the application, and have been aware of the application since the documents were filed in this Court on 27 November last year.  They have been kept fully informed of the progress of the matter and have consistently taken the view that they do not want to be heard. 

HIS HONOUR:   Yes. 

MR HANKS:   It is difficult to see how their interests are ‑ ‑ ‑ 

HIS HONOUR:   Well, they have been given an opportunity, yes. 

MR HANKS:   Yes, and it is difficult to see how their interests are prejudiced by the orders that we seek today. 

HIS HONOUR:   Except if you can identify their interest with those who drafted the Act. 

MR HANKS:   Although perhaps I am not ‑ ‑ ‑ 

HIS HONOUR:   ...(indistinct)... want to avoid the jurisdiction of the Federal Court. 

MR HANKS:   Yes.  I am not in the best position to assess exactly what their interest are.  Can I make a final point, your Honour, that if your Honour is not minded to grant the order nisi, we would respectfully encourage your Honour to remit the ‑ ‑ ‑ 

HIS HONOUR:   To direct that the application be made on notice of motion to the Full Court? 

MR HANKS:   No, I did not have that in mind, your Honour. 

HIS HONOUR:   I see. 

MR HANKS:   I had in mind that your Honour might remit the other proceeding, M72 of 1995, to the Federal Court. 

HIS HONOUR:   Well, that is not an application that is before me at the moment, is it? 

MR HANKS:   No, it is not, your Honour, but as your Honour pointed out ‑ ‑ ‑ 

HIS HONOUR:   I can do something of my own notion.

MR HANKS:   Yes, your Honour.  We are reasonably anxious to get this proceeding on to some reasonably sound procedural foundation. 

HIS HONOUR:   Yes. 

MR HANKS:   We regret that we have not managed to do that so far. 

HIS HONOUR:   Very well.  Well, I will reserve my decision and let you know the outcome in due course. 

MR HANKS:   If your Honour pleases. 

AT 10.19 AM THE MATTER WAS ADJOURNED
INDEFINITELY