Roberts v Repatriation Commission

[1993] HCATrans 311

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MS of 1993

B e t w e e n -

CECIL WILLIAM ROBERTS

Applicant

and

REPATRIATION COMMISSION

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 OCTOBER 1993, AT 11.38 AM

Copyright in the High Court of Australia

Roberts 1 15/10/93

MR B.J. SHAW, QC: If the Court pleases, I appear with my learned friend, MR K.H. BELL, for the applicant.

(instructed by John W. Ball & Sons)

MR P.J. HANKS: If the Court pleases, I appear for the

respondent. (instructed by the Australian

Government Solicitor)

BRENNAN J: Yes, Mr Shaw.

MR SHAW:  If the Court pleases, the question which arises

here is, it is submitted, a matter of very

substantial importance indeed because the

Full Court and, indeed, the Tribunal, seemed to
have taken the view that there is a general rule to
which there are no real exceptions that when a

power or a discretion is invested in a tribunal, circumstances cannot arise in which the tribunal

can say that despite some time limit in relation to

the lodging of a notice of appeal is fulfilled, the

tribunal has power to exercise the discretion or

make the relevant order.

BRENNAN J:	Mr Shaw, the problem here is that the question of whether or not the Department is an adversary,
in a sense of being open to being estopped; the
jurisdiction of the Tribunal; statutory power; the
conditions precedent. Is there any room for this notion of estoppel?
MR SHAW:	I was merely, Your Honour, saying something about

the importance of the matter. But if I might come
to the merits of the matter: in our submission,
there is and the first thing we would say,

Your Honour, is that the matter simply does not go

to jurisdiction at all. What it goes to is power. For that proposition, we would rely on Parisienne

Basket Shoes v White, and at page 58 of the

application book, the relevant parts of that are

set out. That was a case relating to the

jurisdiction of a court of petty sessions. So, it

is a court but not a tribunal. But the reasoning

is, it is submitted, precisely applicable.

His Honour Justice Dixon said:

The limitation of time for laying an information is not a limitation upon the

jurisdiction of the court or tribunal before

whom the charge comes for hearing. The time

bar, like any other statutory limitation,

makes the proceedings no longer maintainable,

but it is not a restriction upon the power of

the court to hear and determine them. It is

not true that because an information is in

fact laid out of time, the Court of Petty

Roberts 15/10/93

. Sessions is powerless to deal with it.

Whether or not an information was laid too

late is a question committed to their

decision; it is not a matter of

jurisdiction ...

How absurd would it be to deny to the court

before which such information as those now in question are brought power to dismiss them on the ground that they are out of time and to do

so with costs. If the court can do this, it
means that it can take cognizance of the

proceedings and make a valid order in relation
to them. Suppose the court were to decide

erroneously that the information was too late; its order of dismissal would not be void. The

information could not, while the order stood,

be brought on again for hearing. The order

for costs could not be ignored and execution

thereof resisted. The dismissal would not be

a mere refusal of jurisdiction; it would be an

adjudication, and, subject to proceedings by

way of review -

and so on.

BRENNAN J: It is not doubted here that the AAT found that

it was out of time.

MR SHAW:  Of course it did, Your Honour, but Your Honour put

to me that one question or one difficulty in our

way was that the Tribunal lacked jurisdiction and

what I was putting to Your Honour was that was not

a correct analysis of the situation. It was not

that the Tribunal lacked jurisdiction. Indeed, it

had jurisdiction to decide whether or not the

application had been lodged in time or not.

DEANE J: But what if both parties had come along and said to

the Tribunal, "This application is out of time but

we agree that it is in time"?

MR SHAW:  Your Honour, then one would ask oneself why the

provision about time is	there. In the present
circumstances, one does	need, indeed, to ask
oneself that question.	If the answer -

DEANE J:	Or take it a bit further and closer to estoppel:
"This application is undoubtedly out of time but we
have been guilty of appallingly negligent conduct
and therefore we've entered into a contract that
we were regarded in time to avoid proceedings in negligence"?
MR SHAW:	Your Honour, in those circumstances, in our
submission, what the Tribunal ought to say is,
"Well, I look at this provision.  I see that it was
Roberts	15/10/93

inserted simply for your protection. Looking at

the Department or the Commonwealth, it was put
there to protect you. You've mucked it up and what

is more, you've mucked it up in circumstances in

which the very protection which the section was

designed to give you was afforded you because what

happened was you were given the application, so

that the whole object of the section was in fact

fulfilled and, in those circumstances, it is in our

power to say that you can waive the objection." It

is submitted that there are authorities which

support that approach. One of them is -

BRENNAN J:	The thought that the statute is there for the protection of a department comes as something of a
surprise.
MR SHAW:	Your Honour, the section provides that the - - -
BRENNAN J:	The Act casts administrative duties on the

Department and it provides for a review of the

decisions made by the Department by the AAT with
powers in the AAT conditioned as the statute sets

out.

MR SHAW:  Yes.

BRENNAN J: That is a question of the disposal of the

revenues of the Commonwealth.

MR SHAW:  I am sorry, Your Honour?

BRENNAN J: That is a matter dealing with the disposal of

the consolidated revenue fund.

MR SHAW:  What is put, Your Honour, is this: I did say "the

Department" but I tacked on the end, "for the

protection of the Commonwealth", and it is

submitted that one has a time provision here, the

only purpose of which can be to provide some

protection to the Commonwealth. It cannot have any

function so far as the Tribunal itself is
concerned.	I mean, what does it matter to the
Tribunal when the application is lodged.	The only

sensible purpose that can be discerned in the

enactment of provisions like this is that they are

inserted for the protection of the Commonwealth, so

that the Commonwealth has notice, in proper time,
that an application for a certain kind will be made

and it will have certain consequences.

So that, in our submission, the position is

that you have a provision inserted for the

protection of the Commonwealth and the question

then arises as to what consequence that has.	If I
could hand up copies of Verwayen.

Roberts 4 15/10/93

DEANE J: But, Mr Shaw, is there any point in going to

Verwayen unless you can persuade us that it is

arguable that the time limits here are susceptible

of waiver by contract or by representation or how

have you? I mean, is that not your great and

possibly only problem in this whole case?

MR SHAW:  Your Honour, the reason I was going to Verwayen

was to persuade Your Honour of that.

DEANE J: In that case, disregard what I said.

MR SHAW:	At least, that is what I hope to do, Your Honour.
DEANE J:	You could approach the case on the basis, as far as I am concerned, that one is simply overwhelmed
by your merits.  It is simply a question of whether
the legal basis is there.
MR SHAW:	Yes, and it is simply, it is submitted, a question

whether the matter is arguable. We do not say

there are not obstacles in our way and we might

have to ask the Court to depart, in certain
respects, from what has been said in a number of

cases but what we say is this, that it is arguable and the sort of way in which we put it can perhaps be put in two ways: the first way is the Verwayen way; the second way is the Parisienne Basket Shoes

v White way.

If I might deal with the Verwayen way first.

At page 404, about point 6 of the page, just going

into the second complete paragraph, His Honour the

Chief Justice said:

Undoubtedly, some statutory rights are capable

of being extinguished by the person for whose

benefit they have been conferred. However,

some statutory rights may also operate as a

condition precedent to a court's jurisdiction.

More importantly, some rights may be conferred for reasons of public policy so as to preclude	contracting out or abandonment by the
individual concerned. It is therefore necessary to examine the relevant statutory provision in this case in order to ascertain
whether it is susceptible to extinguishment in
this way.

And then it is all set out. His Honour says:

Although the terms of s 5(6) are such

that it is susceptible of being read as going
to the existence of the jurisdiction of a

court to hear and determine an action of the

kind described, limitation provisions

similarly expressed have not been held to

Roberts 15/10/93

limit the jurisdiction of courts. Instead,

they have been held to bar the remedy but not

the right and thus create a defence to the

action which must be pleaded.

On the footing that the right to plead

the statute as a defence is a right conferred

by statute, the respondent's contention that

the right is capable of waiver hinges on the

scope and policy of the particular statute.

The issue is not whether the relevant provisions are beneficial to the public, but whether they are "dictated by public policy"

and enacted "not for the benefit of any

individuals or body of individuals, but for

considerations of State". Although, in one

sense, all statutes give effect to some public

policy, the critical question is whether the

benefit is personal or private or whether it

rests upon public policy or expediency.

Now, what we would submit here is that here

you have a provision which is simply inserted, not

going to jurisdiction but as a matter of convenient

administration in order that the Commonwealth

should have convenient notice of the way in which

claims are being made against it in relation to

this matter. In fact, the Commonwealth did have

that notice and.it now seeks to say that despite
the fact it did have, in fact, the protection which

the statute was intended to give it, despite the

fact that it has led us to think that we had

complied with the statute, it can nevertheless rely

on the statute.

In our submission, the cases which say that,

in circumstances in which severe harm will occur to

an individual and, in effect, no harm will be done

to anybody else, then this kind of doctrine of

waiver or estoppel, or whatever it might be, may be

His Honour the Chief Justice in Quinn's case in the applied. Something of that kind was said by	passage which is set out at page 34 of the
application book and, indeed, was said by the
Master of the Rolls, Lord Denning, in the passage
in Laker Airways v Department of Trade which is
referred to by His Honour in that passage.

So that it is submitted that provisions of

this kind can be interpreted so that they go only

to power; that they confer rights which are

directed simply to machinery matters and that, in

circumstances of this kind, they can be waived.

The other approach to the matter is, it is

submitted, the kind of approach which was adopted

in Parisienne Basket Shoes v White. In that case

Roberts 6 15/10/93

the Court has seen how the matter arose, and the
relevant passage is set out at page 58 of the

application book right at the bottom of the page:

It cannot be denied that, if the legislature

sees fit to do it, any event or fact or

circumstance whatever may be made a condition

upon the occurrence or existence of which the

jurisdiction of a court shall depend. But, if

the legislature does make the jurisdiction of
a court contingent upon the actual existence

of a state of facts, as distinguished from the

court's opinion or determination that the

facts do exist, then the validity of the

proceedings and orders must always remain an

outstanding question until some other court'or

tribunal, possessing power to determine that

question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract

possibility of the legislature adopting such a

course, nevertheless it produces so

inconvenient a result that no enactment

dealing with proceedings in any of the

ordinary courts of justice should receive such

an interpretation unless the intention is

clearly expressed.

So that what the power may depend on is the opinion

of the Tribunal and if the provision here, which is of the same kind of provision as was in question in Parisienne Basket Shoes v White, if the provision

is interpreted in that way, then one may get to the

same kind of situation as one got in Parisienne

Basket Shoes v White.

Might I illustrate the strange results which

follow if we are not correct? Imagine that the Tribunal had come to the conclusion that it did

have power to make the order which we wanted it to

make, and had made it, and assume that the

Commonwealth had then commenced an action in

whatever court is the relevant court, the Federal

Court, whatever it might be, seeking a declaration

that the Tribunal had no power to make the order

and it pleaded the various facts, and we had then

pleaded, "You cannot say that, Commonwealth,
because you are estopped from saying that this was

lodged out of time because of the various facts",

in our submission, the court would then be in a

situation where an estoppal, plainly, could

operate. In our submission, that would lead to the

conclusion that any such action for a declaration

would fail.

If that is right, then, surely, the Tribunal

must be able to say in the same way as the court

Roberts 15/10/93

says, "Look, in these circumstances, an estoppel or

a waiver or whatever it is, does arise".

BRENNAN J:  The problem with that is that there is no

estoppel there against the Commonwealth asserting
the invalidity of the AAT decision. There is no

delay which is relevant to that assertion.

MR SHAW:  There certainly would be no delay in asserting the

fact, but it would be estopped, we would submit, in

saying that the application had not been lodged in

time.

BRENNAN J: That is the problem we have got.

MR SHAW:  Yes. We submit that one way or another, either

because we can rely on the kind of thing that was

referred to by His Honour Justice Mason in Verwayen

or because we can rely on the kind of thing that

was said by Justice Dixon in Parisienne Basket

Shoes v White, that we do have an arguable case;

not a case which is free of difficulty but,
nevertheless, arguable and because the matter is so

important, we submit that special leave should be

granted.

We point out that the case which forms the

foundation for the Full Court's decision in this

case, that is the case of Formosa, in a passage

which is referred to at page 32, the Full Court and Gummow say:
itself acknowledges that the law is uncertain.

A collection of the authorities revealing the

somewhat uncertain state of the law as to the fettering by estoppels of the proper exercise

of statutory discretions may be found -

and then referred. But the Full Court in this case

regarded itself as bound by Formosa. Formosa

itself was a case which acknowledged uncertainty in

the law. In circumstances such as this, it is our

submission that the law is uncertain and it is an

appropriate case for the Court to decide the
question, and special leave should be allowed. If

the Court pleases.

BRENNAN J:  We need not trouble you, Mr Hanks.

Although the hardship which the application of the statutory provisions imposes on the applicant

is undoubted and although that hardship was

apparently produced by regrettable administrative

inefficiency, we consider that the applicable

statutory provision is clear and undoubted.

Roberts 15/10/93

Accordingly, the decision of the Full Court of

the Federal Court is not attended with sufficient
doubt to justify a grant of special leave to

appeal. Special leave to appeal is accordingly

refused.

MR SHAW: If the Court pleases.

AT 12.01 PM THE MATTER WAS ADJOURNED SINE DIE

Roberts 9 15/10/93