Rose v Meriton Apartments Pty Limited & Ors

[2010] HCATrans 143

[2010] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S17 of 2010

B e t w e e n -

JOHN EMMANUEL ROSE

Applicant

and

MERITON APARTMENTS PTY LIMITED

First Respondent

OWNERS CORPORATION 56443

Second Respondent

INDUSTRIAL COURT OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2010, AT 11.03 AM

Copyright in the High Court of Australia

MR A.W. STREET, SC:   May it please the Court, I appear with my learned friend, MR A.J. ABADEE, for the applicant.  (instructed by Barwick Legal)

MR B.J.A. SHIELDS:   May it please the Court, I appear for the first respondent.  (instructed by General Counsel, Meriton Group)

FRENCH CJ:   Yes, Mr Street.

MR STREET:   Your Honours, this application raises four questions of general importance, the first in relation to res judicata in respect of prerogative relief where a final order has been made in the Federal Court of Australia in respect of an alleged jurisdictional error by a superior court of record and an inconsistent order is now sought in the Court of Appeal.

FRENCH CJ:   When you say “an inconsistent order”, of course, it is an order which is based upon a State statute and a distinct claim, is it not?

MR STREET:   Your Honour, we respectfully submit it would be an inconsistent order in relation to prerogative relief.  There is an application for prerogative relief in the Federal Court.  That application was dismissed.  The effect of the order that is being sought in relation to the first ground we seek to raise of res judicata we would be seeking an inconsistent order.

HAYNE J:   There is a serious question about whether res judicata and other doctrines of preclusion are engaged in public law remedies; see, for example, Professor Campbell’s article in Monash University Law Review.

MR STREET:   Your Honour, that is the area of importance in relation to the first issue where specifically the Industrial Court is a superior court of record, and it is a superior court of record which is the subject of the alleged jurisdictional error.  To have a position in relation to which that alleged jurisdictional error can be agitated in one court, being the Federal Court, and then sought to be re‑agitated in the Supreme Court of New South Wales is utterly destructive of the integrated judicial system in this country.  I will come back to that if I may, your Honours.

The second area is the issue of Anshun estoppel in relation to the prerogative relief that was sought in the Federal Court and there, your Honours, in substance we say that the question of reasonableness in Anshun properly understood did not arise.  The question of whether it was a court of competent jurisdiction in looking at jurisdictional error against the Industrial Court was a matter for the Federal Court to decide and, in our respectful submission, the Court of Appeal erred by embarking upon a reasonableness analysis.

The third role is the area of reasonableness in a case where one is dealing with a superior court of record, and we say the court erred in that regard.  The fourth area is that involving the nature of the federal matter that was before the Industrial Court and we say it fell within either the accrued jurisdiction or the associated jurisdiction.  On the associated jurisdiction issue, the Court’s decision in Kirk gives rise to that being a matter of some general importance.

HAYNE J:   Now, why did this go forward as a separate question?

MR STREET:   Your Honours, in relation to the aspect before the Federal Court, your Honour, it was by way of agreed ‑ ‑ ‑

HAYNE J:   Separate question in the Court of Appeal.  Why is a question of public law remedy segmented in this fashion?

MR STREET:   Your Honour, on the face of it, it is an abuse of process to be re‑agitating the same subject matter before the Court of Appeal has been the subject of a dismissal ‑ ‑ ‑

HAYNE J:   I understand that to be the contention.  My question is more finely directed.  Why is the question segmented?

MR STREET:   Your Honour, there was a motion brought forward to have the proceedings set aside, as they were, on an abuse of process.  On the face of them, if the applicant’s contentions are correct, they are an abuse of process.  More than that, they are in defiance of an order made by the Federal Court of Australia.  The Federal Court of Australia had before it an application for, relevantly, both certiorari and for prohibition; prohibition in respect of proceedings, the very same subject matter of the proceedings that were raised in the Supreme Court of New South Wales.  So, in answer to your Honour Justice Hayne’s question, one has on the face of it a direct abuse of process in seeking to re‑agitate an issue of prerogative relief not brought forward before the Federal Court of Australia.  Your Honours, at the heart of the problem in that regard is this.  We say that when one looks ‑ ‑ ‑

HAYNE J:   The difficulty about segmenting is that we do not know whether the matters to which you point, if not preclusive, are reason enough to refuse relief on discretionary grounds, and we have public law remedies sought, undetermined, all because there has been a segmenting of the issues.  The undesirability of that is, I would have thought, plain.

MR STREET:   Your Honour, in that regard the prospect of being faced with an abuse of process of this kind where the Federal Court has made an order dismissing an application for prerogative relief and the very same application is brought some two or three months later before the Supreme Court of New South Wales, gives rise to a defiance of authority of the Federal Court, your Honours.  It is a matter where, in our respectful submission, it was utterly appropriate to have the issue determined first.  Your Honours, can I just go back to the sequence of events which gave rise to the proceedings so that your Honours can follow the substance of the argument we would seek to develop?

Before I do so, can I indicate to your Honours that 78B notices were served and that the position was that if special leave be granted, then a different position may be taken by the interveners.  Your Honours, there is also an application for an extension of time, as your Honours would appreciate, in respect of the affidavit of Ms Elizabeth Magill at page 233.  Your Honours, can I turn to the initiating process in the Federal Court in respect of the proposition I foreshadowed developing concerning both res judicata and Anshun.  Your Honours will see at 103 is the application.  Your Honours will see the orders sought after a reference to declaration as one ground of order sought. 

The order sought in the application include materially in order 3, prohibition in respect of the proceedings.  Those proceedings are defined by reference back to the capitalisation found in declaration 1.  They are the very same proceedings sought to be made the subject of prohibition.  When one turns to the summons at page 201, one sees the order at page 202, so the very same subject matter is sought to be re‑agitated.  The Federal Court dismissed that application, as is apparent from the orders that appear, relevantly at this stage, on 111.  So the Federal Court of Australia dismissed an application for prerogative relief. 

True it is that the reasoning differs in relation to the decision of the Federal Court and in that regard, there was a decision obviously by Justice Greenwood that there was no jurisdictional error and for that reason, no intervention, whereas her Honour Justice Branson held that there was an entitlement to assign and for that reason, no relevant error and also, as a matter of discretion, her Honour would not have intervened given the undue delay at that stage by the respondents to this appeal.

So, your Honours, it is in that background that one comes to look at the questions that are raised and perhaps I should just briefly refer to what occurred before, initially, Justice Marks, which appears relevantly, your Honours, on page 6 of the application book. One will see that the motions before him gave rise to some five separate questions of which four are clearly federal matters; the last fifth matter is a matter relating to section 108. Now, all those matters were re‑agitated before the Full Court of the Industrial Court, being a superior court of record. That court made orders that, in essence, set aside the decision of Justice Marks and permitted the matter to proceed, The orders that are there referred to, one finds at page 93, are the orders of the Full Court of the Industrial Court, a superior court of record, seeking to refer the matter back for further determination before the Industrial Court. It is in those circumstances that the questions that we seek to raise in the present proceedings arise.

Your Honours, can I turn first to the issue of res judicata. In essence, it was one which his Honour Justice Allsop dismissed on the grounds that the section 108 issue was not itself raised before the Federal Court. Your Honours, in that regard we would note that the nature of the application to the Federal Court was one of jurisdictional error and in that regard, it is useful to go to the judgment of Justice Greenwood in the Federal Court at page 149 where, in paragraphs 118 and 119, he identifies that the proceedings prima facie would be an abuse of process seeking to re‑agitate issues determined before the Industrial Court. We have taken that level of abuse of process one step further than the present case.

His Honour identifies that the critical question – and this is in 119 on page 150 – before the Federal Court would be the establishing of jurisdictional error. It is in those circumstances that to not raise the issue of section 108 would, in our respectful submission, give rise to a merger of all grounds in respect of which jurisdictional error could have been raised. It is perhaps not without some importance that in this regard these were proceedings before the Federal Court that were proceeding based on what were, in fact, agreed questions in terms of the issues that were formulated before the Federal Court, as appears at page 135, in paragraph 76 at line 22. There was a directions hearing before the Federal Court:

the Court made a number of directions and noted by consent the agreement of the parties as to the issues arising in the proceeding –

So there was a clear identification of the issues. There was no such issue raised in respect of section 108 where jurisdictional error was clearly being sought and jurisdictional error was at the heart of the application before the Federal Court.

BELL J: Can I just take this up with you, Mr Street, concerning the procedural history of matters. The proceedings before the primary judge involved four motions. One of them, the motion filed by Meriton on 23 February 2006, was to strike out the proceedings on the basis both of a lack of standing under section 108 of the Industrial Relations Act alternatively to dismiss the proceedings as deemed abandoned on the Bankruptcy Act provision.  It seems that additionally Owners Corporation filed a motion both for a permanent stay based on the Bankruptcy Act provision and separately on 2 March 2006 on the basis of the standing point under section 108. Just when one turns to the orders of the Industrial Court which you took us to on page 93 of the application book, one sees that the motion filed by Meriton to strike out the proceedings is dismissed.

MR STREET:   Orders 5 and 6 dismissed the motions relevantly to strike out.

BELL J:   Yes.

MR STREET: Your Honours, the position is this, that it is clear, as his Honour Justice Allsop, the President, has identified, that there is a sufficient level of a federal issue that this was, in essence, before the Industrial Court, one in which the controversy, including the section 108 matter, came within federal jurisdiction. So, your Honours, indeed, when one looks at the Bankruptcy Act, the source of the right to litigate, the continued source of the right, was the federal statute within ‑ ‑ ‑

FRENCH CJ:   That would have been open to the Federal Court if the 108 point had been raised before it to decline to entertain it.

MR STREET:   Absolutely, your Honours.  It would have been open ‑ ‑ ‑

FRENCH CJ:   .....a discretion relating to the accrued jurisdiction.

MR STREET:   As your Honour the Chief Justice identifies, had it sought to indicate that it declined to entertain it, or that it did not have jurisdiction, that was a point that could have been raised.  But what we say is when one comes to a question of res judicata to start with, the content of the application before the Federal Court was, in essence, an issue of jurisdictional error.  It cannot be the case under our integrated system that one can piggybank jurisdictional error points; one cannot, they must be raised, and it was for the respondents to raise that issue before the Federal Court, and not having raised it, it merged, and, in our respectful submission, is subject of res judicata.

Can I turn to Anshun, your Honours.  In relation to Anshun, your Honours, in Henderson his Lordship the Vice‑Chancellor Wigram identified the first step in relation to any principle of Anshun being one that there must be a court of competent jurisdiction.  It is clear from the reasoning in the Court of Appeal that they approached the matter from an analysis of whether there was some unreasonableness in the pursuit of the proceedings before the Court of Appeal.  Your Honours, we respectfully submit in the context of Anshun that the correct principle, where one is challenging on jurisdictional error a superior court of record, which is what the Industrial Court was, is that the issue of a court of competent jurisdiction is one to be determined by that court. 

In other words, it does not involve an analysis of reasonableness and reasonableness does not become an issue in finding that there is an Anshun.  Your Honours, in our respectful submission, that accords with principle, because if it were not so, then one would have a breakdown in the integrated judicial system, as we have sought to identify.  Your Honours, can I turn to the third argument that we have sought to identify and develop.

FRENCH CJ: You are saying, in other words, it was not open to the parties in this case – or was not a reasonable approach for the parties in this case to take the – or the applicant in this case – to take the view that the section 108 argument was unlikely to be entertained by the Federal Court?

MR STREET:   I go higher than what your Honour the Chief Justice raises.  That is the third ground that I was about to come to, but I put it higher, your Honour.  I say in relation to properly understanding what was said in Henderson is that the content of it being a court of competent jurisdiction does not require evaluation of reasonableness.  In other words, one must raise before that court any matter within its jurisdiction and if it determines it is not within its jurisdiction, then it is one that no doubt can be pursued.  Not to do so gives rise to the very unfairness of discretionary considerations which are used against the applicant in the reasoning of the President. 

Whether an application might have been pursued or foreshadowed in respect of section 108 would have been a material issue for the Federal Court in any discretionary considerations. To hold it back up one’s sleeve would be utterly inappropriate. When one comes to deal with not a tribunal but a superior court of record, we say that the correct principles in Anshun would require that the issue of whether one is before a court of competent jurisdiction where challenging a superior court of record is an issue that does not turn on reasonableness, it is an issue that must be raised.

Your Honours, can I then turn to the third issue, and there we embrace what your Honour the Chief Justice said, in essence, in this case.  It is one where it clearly would have been unreasonable not to bring forward the matter and it is clear from agreed questions that I took your Honours to that it was one which was not the subject of some procedure where the questions determined by the Federal Court did not get addressed carefully; page 135, paragraph 76, they plainly were. 

Despite that though, your Honours, one has, in the judgment of Justice Handley, a most unusual extracting from the ether, we respectfully submit, in paragraphs 76 and 77 of a mythical decision by the corporations as part of the reasoning that has been embraced by Justice Tobias and Justice Handley.  Their reference there to the decision of the corporations in

paragraphs 76 and 77 is wanting in evidence.  So that mythical proposition of a decision is itself legal error referable to the question of unreasonableness.  The question of unreasonableness is further identified as being the subject of error when one comes back to paragraph 59 on page 252 where his Honour Justice Handley says:

It would be strange if a litigant in the Federal Court was bound, at the risk of an Anshun estoppel, to invoke its accrued jurisdiction, when the Court can decline to exercise that jurisdiction.

Not strange at all, your Honours.  It was open to be advanced and should have been advanced and because it would have been relevant to discretion, it must have been advanced.  His Honour also adopts a position, your Honours, when one turns to paragraph 55 on page 251 in this analysis of unreasonableness where his Honour makes the observation:

neither side attempted to invoke any accrued jurisdiction the Federal Court may have possessed to determine the s.108 point.

Your Honour, that misconceives entirely the nature of the proceedings before the Federal Court.  My client was not there seeking to challenge the Industrial Court’s decision; why would it?  The proposition that it was in some way relevant that we did not raise the issue is, in our respectful submission, utterly irrelevant.  So that when one comes to the issue of reasonableness, as identified in Anshun, there would need to be some evidence as to why it was the position that the point was not raised here, there was no evidence on reasonableness.  Here one has a position where it flies in the face of the integrated court system to have an approach adopted that can be re‑agitated.

Your Honours, the fourth issue that we seek to agitate is one where we respectfully submit that the decision of Justice Handley and Justice Tobias is infected with error in relation to failing to recognise this is a matter within federal jurisdiction.  They appear to treat the matter as being one solely within the scope of the State jurisdiction, and that appears, your Honours, at paragraph 62 on page 253 where his Honour Justice Handley has treated it as if it was a purely State issue.  We respectfully submit this is a case where plainly there was accrued jurisdiction and given the Kirk decision of this honourable Court, there would also be associated jurisdiction because the prerogative relief powers of the Supreme Court being constitutional, they fall within section 32 of the Federal Court of Australia Act.  If the Court pleases.

FRENCH CJ:   Yes, thank you, Mr Street.  Yes, Mr Shields.

MR SHIELDS:   Thank you, your Honour.  To answer the question that Justice Hayne asked early in my friend’s address, the application took the form that it did because a motion was filed by the applicant seeking to bring the proceedings in the Court of Appeal to an end.  A view was taken among the applicant in this Court that it was not appropriate that that be determined on the standard that would attach to a strike‑out motion in the ordinary course and, therefore, they wanted it determined on a substantive basis as a separate question.  That is how it morphed from a motion for strike‑out into a separate question that was then presented to a Full Bench for determination.

If your Honours please, we say the reason that this Court should not be concerned about the decision of the court below is that it is given under the rubric of reasonableness for Anshun purposes. The questions that might arise in relation to a federal matter and federal jurisdiction at the end of the day did not fall at the centre of the reasoning of the Court of Appeal in disposing of the application or the separate question that would have prevented us from exercising the right that is made available to us under section 179(4) of the Industrial Relations Act to seek a review of a decision of the Industrial Court on a relevant question of jurisdiction. 

It cannot be overlooked that what was being attempted below was an attempt to preclude us from pursuing that right that is given to us by the relevant provisions of the Industrial Relations Act.  If one looks at the issues as they evolve before the Industrial Court, you had a number of disputes that it is easy to roll together in one sense and say, these all related to the standing to pursue the proceedings, but, in our respectful submission, that tends to conceal what was truly occurring.  You had two quite separate and distinct issues; one arising under federal law under the Bankruptcy Act and one arising under the terms of section ‑ ‑ ‑

FRENCH CJ:   The agreement was made by a corporation controlled by the bankrupt.

MR SHIELDS: Yes. In broad terms, section 108 confined – it is tempting to speak about it as an issue of standing, but in truth it is a limitation on the power to order. If one looks at the terms of section 108 they are unusual, to say the least, but one must be a party to the contract, and the question then becomes, did Mr Rose in his proceedings before the Industrial Relations Court point to a contract or arrangement within the meaning of section 105 to which he was relevantly a party? That is the 108 issue.

The issues that arose, of course, under the Bankruptcy Act arose after the proceedings had been commenced as a consequence of entirely separate dealings between Mr Rose and his trustee in relation to the conduct of the proceedings.  That is why we say that there is a distinct factual basis to these two jurisdictional arguments that, it is true, were served up to the Industrial Relations Court in a collection of motions, but nevertheless had very, very obvious, in our submission, and distinct bases for determination.

FRENCH CJ:   Are you suggesting the 108 point did not fall within the accrued jurisdiction of the Federal Court?  There is a common substratum of fact test.

MR SHIELDS: It is true that you cannot separate the 108 point completely from the allegations that are made in the underlying proceeding, but the fact of the matter is that when one comes to look at the jurisdiction of the Federal Court to deal with the issue under section 108, one is drawn to the question of matter. Now, I do not for a moment resile from the suggestion that they are sufficiently different and distinct to say that they are not part of the same matter, but even if I were to accept for the purposes of argument that the controversy or matter that came out of the decision of the Full Bench of the Industrial Relations Commission is the question of, is Mr Rose entitled to relief under section 106, and you would have packed into that question every answer that might be given at State or federal law on one view of it, and that might include the bankruptcy issues that arise as a result of dealings between Mr Rose and his trustee, and it also includes the 108 point.

In a sense, in our submission, you do not have to answer that question to get to a resolution of the application which we faced in the court below because we can accept and avoid. Even if it were the case that the matter could be properly described as the packing together of all of those elements, we say the jurisdiction of the Federal Court to deal with it was still very, very unclear; it is not demonstrated to the point of clarity. The Federal Court has to find its jurisdiction in statute or statutes. Whatever one might say about section 108, it does not arise under federal law, so, in our submission, it cannot be section 32, so it is accrued or nothing. If it is accrued, we then get drawn into questions of matter, but, in our submission, the ‑ ‑ ‑

FRENCH CJ:   If it is accrued you get drawn into questions of discretion.

MR SHIELDS:   Yes, you do get drawn into questions of discretion ‑ ‑ ‑

FRENCH CJ:   In the matter.

MR SHIELDS:   Yes.  You get drawn into the question of discretion.  Now, the circumstance that confronted the applicants to the Federal Court is this.  There is a 108 point there, it might be raised, the Federal Court might have the power to deal with it under its accrued jurisdiction but it might not, and it has a discretion in any event not to exercise that jurisdiction if it has it.  Now, that is the rubric within which the Court of Appeal looked at the application brought against the respondents here and said in those special and particular circumstances it is not unreasonable not to bring that claim forward.

So, in our submission, that is a sufficient basis for disposing of the application that we confronted, but it also avoids the need to get drawn into the undoubtedly interesting questions about whether the accrued jurisdiction of the Federal Court would have extended to exercising a jurisdiction which is an inherent and supervisory jurisdiction of the Supreme Court of New South Wales pursuant to legislation where the Parliament of New South Wales has made plain that if one wants to confront and question the jurisdiction of that court, you go to the New South Wales Court of Appeal. 

Now, in our submission, that is a sufficient answer to the entire application.  We say it is self‑evidently correct in the circumstances of this case which are, on any view of it, somewhat peculiar and somewhat special.  Can I go firstly to the application in the Federal Court and draw your attention to a number of matters that Mr Street did not.  If one goes to the application, which is at 102, to look under paragraph 1 at “Declaration”.  You will see that the declaration that is there sought is a declaration peculiarly in relation to the abandonment of the proceedings by operation of section 60 of the Bankruptcy Act.  There is nothing on the face of the application that was brought before the Federal Court that raised expressly or by implication the 108 point. 

While it is true that there is an order sought in paragraphs 3 and 4 of the next section of the application, which is in the nature of prerogative relief, in our submission, it is plain on the face of the issues that there was no attempt to raise the 108 issue before the Federal Court.  The Federal Court for itself defined the issues and one finds that in the judgment of Justice Greenwood, beginning at paragraph 55, which is in the application book at 129 at about line 15 and following.  A review of those paragraphs shows that his Honour extensively reviews the facts as they had occurred in relation to the bankruptcy issues, but one does not find, in our submission, material that would suggest that his Honour or the Federal Court was in any way under the impression that they were being asked to confront anything other than the issues under the Bankruptcy Act.

HAYNE J:   Well, the matter arising under a law of the Commonwealth which is the section 39B(1A(c) matter, do you say that that is confined to the matter of controversy concerning the – or the effects of the Bankruptcy Act on the events that had happened?

MR SHIELDS:   I do say that, but I go back to my earlier submission ‑ ‑ ‑

FRENCH CJ:   Your primary position is you are confessing and avoiding on that?

MR SHIELDS:   Yes, that I do not have to confront that question and neither does this Court, because at the end of the day what we confronted was an application to stop us peremptorily from proceeding in the Court of Appeal.  Your Honour Justice Hayne has directed questions to my learned friend as to why it is that questions of that kind come forward at an early stage in the proceedings.  We were responding to the application that was brought and, ordinarily, a question of the kind that is now raised and sought to be litigated for this Court should be, in our submission, resolved with the package of the matter fully before the Court of Appeal, but confronted as we did with the application we had no choice.

The Court of Appeal’s judgment in the end comes back to nothing more, in our submission, and I do not mean that in any derogatory sense, it comes back to nothing more than the real question is, was it unreasonable of the respondents not to bring forward that 108 point before the Federal Court?  When you look at the other issue that is the subject of dispute between the parties in this case, it is a matter that on its face does not easily sit with determination in the Federal Court, even if it were that the Federal Court within its accrued jurisdiction were able to do so.

BELL J:   The orders that you sought in the Federal Court, which appear at application book 103, did include an order setting aside the Full Bench dismissal of the Meriton motion filed on 2 March, and that was the motion that raise the 108 point discretely, was it not?

MR SHIELDS:   Yes, it was, and I cannot avoid that.  The answer is yes, but, in our submission, one has to look to the way the litigation was conducted before the Federal Court.  Those are my submissions, your Honours.

HAYNE J:   Just before you sit down, what is the relief you seek in the Supreme Court?

MR SHIELDS:   We seek an order prohibiting the Industrial Relations Commission from further hearing the ‑ ‑ ‑

HAYNE J:   Do you seek certiorari to quash?

MR SHIELDS:   Yes.

HAYNE J:   Are there time limits for certiorari?

MR SHIELDS:   I am sorry, your Honour, I may have mis‑spoke.  The application to the Court of Appeal seeks only an order in the nature of prohibition on the 108 point.

FRENCH CJ:   Speaking of time limits, Mr Street mentioned a necessity for an extension of time in this matter, I think.  Is that opposed?

MR SHIELDS:   No it is not opposed, your Honour.

FRENCH CJ:   Yes.  Yes, Mr Street.

MR STREET:   In answer to the question raised by your Honour Justice Hayne in respect of the origin of the application for the separate question, can I just refer your Honours to page 248.  Paragraphs 39 and 40 identify that initially the motion brought by the applicant was heard by Justice McColl and Justice McColl then directed that the matter be referred to the Full Court.

HAYNE J:   It is not the origin so much as the desirability to which my question is directed.

MR STREET:   I understand that, your Honour, but in that regard ‑ ‑ ‑

HAYNE J:   I have in mind considerations of the kind Justice McHugh referred to in the Commonwealth of Australia; Ex parte Marks 177 ALR 491 about the desirability of resolution of these issues of public law promptly.

MR STREET:   Could I hand up to you your Honours just a chronology just in response to what your Honour Justice Hayne has just referred to because it does identify, if I can, in a nutshell that the application that was before Justice Marks was obviously not an application by the applicants to have the matter adversely determined, but what you do have, when one looks at that chronology, it came before Justice Marks back on 31 March, the Full Court delivers a decision on 30 November, it is then some four months later that the Federal Court process is sought to be invoked by these respondents, and then having had an appeal adversely determined in the Federal Court, the agreed facts in the application of the applicant, which were not challenged, was that after the decision on 13 October, there was a foreshadowed application to be made by the respondents to this Court.  It was never pursued. 

Time then expires, and we then have some two months later an application files in the Supreme Court.  It is in those circumstances, we say, that what might have been the considerations your Honour Justice Hayne has referred to are not ones which the applicants identified – the

respondents identified by the respondents – by Justice Branson as having been the subject of unwarranted delay can raise that issue. 

Your Honours, can I then just briefly return to what my learned friends said in response to your Honour the Chief Justice.  It is clear that the issue of both accrued jurisdiction and associated jurisdiction is sought to be raised in terms of issue.  They are clearly matters of appropriate importance for this Court to determine.  My learned friend then tried to address the question of reasonableness by reference to the topic of discretion.  Discretion is inherent in every prerogative relief application.  It is not an answer in response to the question of reasonableness that the jurisdiction will involve discretion.  It would in the Supreme Court just as much as in the Federal Court.

Your Honours, in our respectful submission, my learned friend then seeking to advance that the discretion was the reason, that fell foul of the same problem that arose in Anshun.  There was no evidence adduced as to why the issue was not raised and, in our respectful submission, as we sought to put, first a correct application or principle would be reasonableness does not arise as the question of whether it was a court of competent jurisdiction should have been addressed by the Federal Court, but to the extent that it does, we say it raises a further appropriate question for special leave and the content of reasonableness in the circumstances of this case.

FRENCH CJ:   Thank you. 

We are not persuaded that the applicant enjoys sufficient prospects of succeeding in displacing the Court of Appeal’s conclusion, that continued prosecution of the application for relief would not be an abuse of process, to warrant a grant of special leave to appeal.  We express no opinion, however, about whether or how principles of preclusion are engaged in public law litigation.

Having regard to the particular question tendered for consideration by the Court of Appeal, those larger issues about the availability and application of principles of preclusion would not fall for consideration if leave to appeal were to be granted.  Nor are we to be taken as endorsing the desirability of isolating and determining separate issues in connection with applications for prerogative or constitutional relief founded on an alleged want of jurisdiction.  Separation of questions for determination before argument of the principal argument can, as has been the case here, lead to the undesirable prolongation of litigation about the fundamental question of jurisdiction.

There will be an extension of time for the purposes of making the application, but special leave will be refused with costs.

AT 11.41 AM THE MATTER WAS CONCLUDED