Roy Morgan Research Centre v Comm State Revenue

[2001] HCATrans 83

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M108 of 2000

B e t w e e n -

THE ROY MORGAN RESEARCH CENTRE PTY LTD

Appellant

and

COMMISSIONER OF STATE REVENUE (in his capacity as Commissioner of Pay-Roll Tax)

Respondent

GAUDRON J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 4 APRIL 2001, AT 10.14 PM

(Continued from 3/4/01)

Copyright in the High Court of Australia

GAUDRON J:   Yes, thank you, Mr Tracey.

MR TRACEY:   If the Court pleases, may I deal with some matters we had undertaken to attend to overnight?  Can I first confirm that the Victorian Civil and Administrative Tribunal Act does not contain a privative clause and that the only restriction that it contains in relation to appeals is that found at section 148.

The second matter, I think raised by your Honour Justice Kirby, was in relation to Coal Cliff and its progeny.  We have looked at that line of authority overnight, your Honour, and have not found anything of assistance for present purposes.

KIRBY J:   Could you just give me the citation of the Coal Cliff Case?  Have you got that handy?

MR TRACEY:   Yes, your Honour.

KIRBY J:   Maybe that could just be given at some stage.

MR TRACEY:   I will arrange for that to be done, your Honour.

KIRBY J:   It was not quite Coal Cliff that I was thinking of.  It is another line of territory.  It may have been mentioned in Coal Cliff of decisions in the Court of Appeal of New South Wales which, in a sense, held, for example, that to make an interlocutory order called direction or something else would not give rise to a right of appellate review.

Now, I am sorry I cannot express it better.  If Justice McHugh were here he would remember it immediately, but I just have in the back of my mind that there was this line of authority, which frankly I never felt very comfortable with myself, but which had run through a number of decisions in the New South Wales Court of Appeal which said you did not have an appeal from certain discretionary decisions, for example, I think refusing an adjournment but I will just have to try and track it down to see whether it has any bearing on this case.

MR TRACEY:   We will certainly track down the citation, your Honour, in the course of the morning.  The third matter was raised by your Honour Justice Hayne yesterday and it relates to the question of how one expresses or states what we were describing as the principle in Lane v Esdaile.  Your Honour, we took that reference to the principle from the judgment of the Privy Council in Kemper and your Honour will find it stated at page 13 of that report in these terms, that the principle is:

that a provision requiring the leave of a court to appeal will by necessary intendment exclude an appeal against the grant or refusal of leave, notwithstanding the general language of a statutory right of appeal against decisions of that court.

It is in that sense that we were using the phrase “the principle in Lane v Esdaile”, your Honour, and our contention is that, as we submitted yesterday, firstly, that principle may have application within the system of curial appeals but it ought not to apply in relation to applications that are more akin to applications for judicial review to engage a court for the first time and that if need be, we would take the extra step of saying that that principle could not be supported more generally because the two foundations on which it rests, which are identified afterwards by the Privy Council, namely that it:

is based upon “the nature of the thing” and the absurdity of allowing an appeal against a decision under a provision designed to limit the right of appeal –

really cannot be supported.  The two reasons, firstly “the nature of the thing” argument is not consistent with the principle that the legislature takes the court as it finds it when it confers additional jurisdiction and the problem of the lists of courts being clogged up by frivolous and vexatious appeals can be dealt with quite simply by the appeal court simply refusing leave by reason of the frivolous or vexatious nature of the matter without having to descend to a review of the case in any detail.  Of course, that only serves to highlight another distinction between appeals proper and judicial review, because on judicial review there is no occasion to revisit the merits.  There is on an appeal from one court to an intermediate Court of Appeal.

HAYNE J:   Thus, is the distinction between, or can a distinction be drawn between leave to commence a proceeding and leave to appeal properly so called?  Although the VCAT Act may speak in terms of leave to appeal, the process is the first engagement of judicial power.

MR TRACEY:   That is so.

HAYNE J:   Yes.

KIRBY J:   I do not think what you said was quite accurate.  The striking out for vexatious, frivolous or otherwise manifestly incompetent abuse of process is a separate process.  It is an initiative which can be invoked from the court.  It is not, as it were, part of the appeal mechanism or the leave to appeal mechanism, though it may be considered in that, but it is something which an opposing party can invoke as a completely separate process, which is normally provided for by the rules.  It is an initiative.

MR TRACEY:   Your Honour, it is, but I was referring to it in a different sense.  It was the principal rationale advanced in Lane v Esdaile and Stevenson for the rule.

KIRBY J:   I know that and the way I would articulate the answer is, do not be too worried about that because that is not a real problem because it is always open to an opposing party to take out process to strike out a proceeding which is an abuse of process, manifestly frivolous or vexatious.

MR TRACEY:   Yes, I understand what your Honour says and I respectfully adopt it.

KIRBY J:   But I am still not entirely clear in my mind whether you have resiled to the position that the right you had was a right to seek leave to appeal.  I do not think you have gone back to that, have you?  You still assert you have a right of appeal.

MR TRACEY:   Yes.  We maintain we had a right of appeal.

KIRBY J:   Which is an odd result.  Now that is an odd result because it means that you have to seek leave of the primary judge but then you get a right to appeal and therefore, de facto, you have a right to have an appellate court deal with the matter although the Parliament has said you only have a right to seek leave to appeal.

MR TRACEY:   Only on the question of whether leave ought to be granted, your Honour.  We have no right to engage the Court of Appeal on the review that we seek.

KIRBY J:   That is the very thing that Parliament has said.  I see the distinction you are drawing but it means, in effect, you get your day in court to have the issue of whether you should be heard on appeal determined but you say, “Well, we don’t necessarily get our appeal.  We simply get it determined properly and, we hope, with reasons, as to why we are not being allowed into the judicial process.”

MR TRACEY:   That is so, your Honour.

KIRBY J:   Looking at that Natoli Case, I notice that in the United States there has been quite a lot of due process constitutional argument though I gather that it has not stood in the way of the barriers in the United States. Is there any constitutional reason why, in Australia, given the mechanisms under our Constitution for ultimately getting to this Court, as you have, that one would give a construction that ensured a party of a right to exhaust the process within a State Supreme Court? Is there any implication from the Constitution of the way in which we would read the legislation, or not?

MR TRACEY:   We do not think so, your Honour.  We have had a look at a number of authorities and the one that comes closest to providing some assistance does not go completely to answer in the point your Honour has raised but it was the case, I think your Honour Justice Gaudron mentioned in argument yesterday, the Smith Kline Case 173 CLR 194. That was an interesting case to this extent, that it held that the special leave requirement in this Court was a regulatory device to which a right of appeal to this Court is made subject by section 73 of the Constitution and 35 of the Judiciary Act so one starts with the proposition that the right is there but it is qualified by a regulatory provision and the leave requirement was so characterised.  Now, to that extent we are able to engage some assistance from the jurisprudence in this Court but not beyond that, I think, your Honour.

GUMMOW J:   Well, there is a problem, really, because the previous supervisory jurisdiction of the Supreme Court of Victoria over administrative action might be taken out of the Supreme Court, put in another body, appeal then denied to the Supreme Court of Victoria and by that means, any route to this Court shut off where there is no federal question.  But you say that does not arise here because there is no privative clause.

CALLINAN J:   I think we discussed that sort of provision in a criminal case in New South Wales where there was a provision that said you needed leave, I think, to go to the Court of Criminal Appeal.

GUMMOW J:   Yes, that is right.  So it is a problem that can arise and one day we will have to deal with it, that is to say State legislatures take out of the traditional jurisdiction of the State Supreme Courts, as it existed in 1900, matter, put it in some other court and then insulate that court.

MR TRACEY:   Yes.

KIRBY J:   And has been known to happen in Victoria, I would have thought.

MR TRACEY:   But mercifully that is not this case, your Honour.

GUMMOW J:   No.

MR TRACEY:   But plainly it could happen if a State determined to go that route.  One would hope that it would not occur.

GAUDRON J:   But essentially your argument comes down to this, does it?  As was pointed out in Lane v Esdaile, there is no presumption that there is to be an appeal.  There is, however, a presumption that a court has a supervisory jurisdiction with respect to administrative actions.

MR TRACEY:   Yes, your Honour.

GAUDRON J:   And that may, in fact, explain Lane v Esdaile.

MR TRACEY:   It does and the way it was distinguished in Kemper, your Honour.

GUMMOW J:   Well, in Lane v Esdaile there was a second appeal too.

MR TRACEY:   Yes.

HAYNE J:   Do you say that the refusal of leave would be a judgment, decree, order or sentence?

MR TRACEY:   Yes.  Your Honour, we say that what it has to be is a determination for the purposes of 17(2).

HAYNE J:   I understand that and I understand that you may seek to distinguish – or determination may give you an easier path home.  I just want to understand what a refusal of leave might be characterised as.  Would it be a judgment, decree, order or sentence in the constitutional expression?

MR TRACEY:   It is certainly an order and expressed to be an order, as your Honour will see in the appeal book at 69.

HAYNE J:   An order is taken out, undoubtedly, but Lane v Esdaile, at least in the argument, on one view, in some of the speeches, looks at whether refusal of leave is properly to be classified as an order.

MR TRACEY:   Your Honour, at minimum, there has to be a decision and there has to be a manifestation of it.  Now, we would submit that the order is, at minimum, a manifestation of a decision to refuse leave and we say, in the context of this Act - and, your Honours, we have looked at various usages of the word “determination” in different context and different legislation and they do not help.  One really has to look at it in the context of the Act in which it appears.

GUMMOW J:   Well, that Bland Case, Bland v Chief Supplementary Benefit Officer would suggest that the term “decision” equals determination, equals, they said, something that determines the matter in dispute.

MR TRACEY:   I think only one of their Lordships took that view.

HAYNE J:   Yes, I think - - -

GUMMOW J:   Yes.

MR TRACEY:   It was Sir Sebag Shaw, your Honour, but the other two members of the court founded themselves on a different proposition, namely, the application of the principle in Lane v Esdaile in that context.  Now, it appears that the argument that we have advanced in this Court and the argument that was successful in Kemper was not put to the Court of Appeal in Bland.  Your Honours will see that the way on which counsel appearing for the applicant in that case sought to distinguish Lane v Esdaile – it appears at 267 ‑ ‑ ‑

GUMMOW J:   It looks like an extempore judgment, too.  Yes.

MR TRACEY:   Yes, page 267D, was on a different basis altogether.  It was that it was a non‑discretionary type of decision.  The argument that we seek to advance was not put in Bland.  Although the decision is strictly against us, we would say that it ought not to be relied on by this Court for the purposes of this case.

Could I just come back to my response to your Honour Justice Hayne in looking at the context of the word “determination” in the Victorian Supreme Court Act? Your Honour will have been familiar with section 17A, which is headed “Restriction on appeals” and which follows immediately after section 17(2) where the word “determination” appears and one would have thought that for drafting consistency, when the draftsman set about providing exclusions from that right of appeal, that there would have been a regular use of the word “determination” in section 17A but one looks in vain.

HAYNE J:   You find “determination”, I think, only in 17A(3).

MR TRACEY:   That is so, your Honour.

HAYNE J:   And that is determinations in criminal matters.

MR TRACEY:   Yes, but otherwise, your Honour, it is “order” in subsection (1), “order” in subsection (2), “order” in (3A) and “order” in various parts of (4) and in (4)(b) it is “judgment or order in an interlocutory application”, (5) it is an “order”, (6) it refers to “order”.  So we would submit that in context the word “determination” in 17(2) must be understood to mean a decision or a manifestation of a decision, however characterised or described, be it judgment, order or determination.  It embraces all, otherwise ‑ ‑ ‑

HAYNE J:   And thus, for example, would extend to the refusal of application for adjournment.

MR TRACEY:   Yes, your Honour.  That is an interlocutory decision but you would need leave.  You would need leave and that appears in 17A(4).  Your Honour, the protection is there but what is noticeably absent from 17A(4) is any qualification on the right to seek to challenge by way of appeal the sort of decision that was made in this case.  One would have expected, had it been intended to exclude it, that it would have appeared there in express terms and if not before, certainly at the time that (3A) was added because the matter would have been plainly in the mind of the draftsman and it was not done.

We have that reference to Coal Cliff, your Honour. It is (1991) 24 NSWLR 1. The only other issue that we would wish to address briefly in support of this appeal was the issue that I raised in passing yesterday and that is the support that we contend is found for our submissions in the legislation relating to commercial arbitration.

KIRBY J:   Just before you go to that, what is the relevance of the failure of Justice Balmford to give reasons, if any?  Is there any relevance of it, or not?

MR TRACEY:  It has, perhaps, some significance.  Firstly, we submitted the Court of Appeal provided us with a ground of appeal, namely a denial of natural justice in the circumstances but it also has a bearing on the way in which the legislation, for policy reasons, ought to be construed because what it involves is an applicant seeking to engage for the first time a superior court with a view to having that court pass upon the legality of decisions taken by an administrative tribunal and being prevented from doing so, and not knowing why.

KIRBY J:   And the theory of the respondent for the first and last time.

CALLINAN J:   It is a Pettitt v Dunkley type case in the New South Wales Court of Appeal, which has been referred to in this Court on a number of occasions.  Failure to give reasons is indicative itself of error, or may very often be.

MR TRACEY:   In some circumstances it may well be indicative of error, your Honour, yes, and that was an issue which we wish to pursue in the Court of Appeal.

CALLINAN J:   You say that would have given you, really, a trump card as a ground of appeal, but whether, nonetheless, the result would have been in your favour might be a different matter but at least you got your foot in the door with that.

MR TRACEY:   Exactly, your Honour.

KIRBY J:   The Court of Appeal gave, if I can say so, with respect, a very succinct, very clear and very unambiguous statement of its reasons for refusing you the right to appeal from Justice Balmford.

MR TRACEY:   Yes, it did.

KIRBY J:   And there can be absolutely no criticism of their Honours’ reasons.  They made it absolutely clear that they were following their previous authority and why they were doing so.  Is it permissible for you to say whether or not the dismissal of applications such as this without reasons is common practice in Victoria, or is it not practice?  It would not be the practice in New South Wales.

MR TRACEY:   Your Honour, I cannot tell your Honour that it happens regularly but it does happen.

KIRBY J:   I do not think it would ever happen in the Supreme Court of New South Wales, just say it is dismissed.  I remember it used to happen in my youth in the Compensation Court.  Hard‑fought cases used to come before a particular judge and he would just say that is dismissed.  You would have to go out and try and explain it to your client as to why they had lost the case.  A terrible experience, left a scar on me.

HAYNE J:   Assumedly the practice is founded on what is said in Coulter v The Queen.  Now, whether it is right to found it on what is said in Coulter v The Queen may itself be a separate question but in Coulter 164 CLR 360, for example, in the reasons of Justices Deane and Gaudron, talking about applications for leave or special leave to appeal, they said:

that wide discretion can commonly be exercised without the provision of detailed or, sometimes, any reasons. 

I think there is something to similar effect in the other joint judgment of Chief Justice Mason and Justices Wilson and Brennan, I think, at 356.

MR TRACEY:   Your Honour, one can understand that being the position after a litigant has already engaged an intermediate Court of Appeal, has presumably got two sets of reasons suggesting why he or she has or has not succeeded.  It is a very different matter when the decision that is complained of is a decision at the very threshold of engaging the judicial process.

HAYNE J:   As their Honours said in Coulter:

it is inevitable that a refusal of leave will be sometimes seen by an unsuccessful applicant as a decision to close the doors of the court in his face rather than as an examination and reasoned rejection of his claim that he has been the victim of a miscarriage of justice in the court or courts below.

Nevertheless, their Honours referred to the possibility that there may be refusal without reasons.

MR TRACEY:   Yes, but as we submit, your Honour, after the applicant knows full well why he or she has failed at lower levels and presumably ‑ ‑ ‑

HAYNE J:   Well, reasons for given by Mr Gibson in the Tribunal, were they not?

MR TRACEY:   Yes, but not by a judge.

HAYNE J:   No.

MR TRACEY:   That is the distinction we seek to draw, that what is decided in a statutory tribunal is not equivalent to a judicial pronouncement on the legality of that decision.

HAYNE J:   Put shortly, do you accept that the reasons given by the Tribunal member were that he was bound by a decision of the Court of Appeal in another not unrelated objection by the same party raising the same issue in respect of similar kinds of remuneration paid to similar kinds of worker?

MR TRACEY:   Same legal issues, different facts, your Honour.

HAYNE J:   Yes.

MR TRACEY:   Because in the periods that were involved there were changes in the terms on which the interviewers were engaged and there is a noticeable lack of a finding of fact precisely about those changes in the second period.  Mr Gibson has simply said, “Well, as far as I’m concerned, nothing manifestly different has occurred and I’m not going to budge”, but there was certainly a noticeable absence of fact finding in those reasons, your Honour.

HAYNE J:   All I am saying, Mr Tracey, is I am not sure that the present appellant came to these issues for the first time in this particular matter.

MR TRACEY:   I do not seek to suggest otherwise, your Honour.  However, what I do seek to suggest is that what was critical was whether what had occurred by way of the changes in the arrangements between the two periods had made a difference legally and he has no clear finding from Mr Gibson about that and he has not had the opportunity of urging the court to distinguish the earlier decision by reason of those changes and he does not know why.

KIRBY J:   In New South Wales the authority on these questions of giving reasons is a case of Soulemezis where Justice McHugh gave quite an extensive explanation which is constantly applied and essentially it says that the judicial obligation is to give reasons.  What the reasons will be will depend on the nature of the controversy and they may be very brief and sometimes I, myself, in the Court of Appeal said, “For reasons that have been sufficiently indicated in dialogue and recorded on the transcript the application for leave is refused.”

MR TRACEY:   Your Honour did that very rarely.

KIRBY J:   But at least an indication was given at the time of the order of why a party was losing because it is a difficult thing for a legal practitioner to go outside the door of a court and to explain why a party has lost unless they have some indication.  That is just not the standard, at least I conceive, that the courts of this country ought usually to apply.

MR TRACEY:   Your Honour, this matter may well have gone no further if there had been an adequate statement of reasons by her Honour, but because they are absent our client simply does not know and cannot know and we cannot tell him why it is that he has not had the opportunity to have his day in the Supreme Court.

GUMMOW J:   Its day.

GAUDRON J:   Yes, and if you succeed in this Court that will be an issue for another day and if you do not succeed it is a matter of no relevance to the issue to be determined.  Is that right?

MR TRACEY:   If we succeed in this Court we will have to pursue the matter further in the Court of Appeal in Victoria and it will determine what it does or does not do, your Honour.

KIRBY J:   As I understand it, your point now, before us, is that it is relevant to this extent that you, in the way in which the Supreme Court in the Court of Appeal has felt itself obliged, you have not had your day in court to ventilate that point.

MR TRACEY:   Just so, your Honour.  We were sent away because it held that it lacked jurisdiction and we are here to attack Rabel and if we succeed in attacking Rabel then that barrier is removed and we can agitate these other issues in the Court of Appeal.

KIRBY J:   And leave aside the facts of this case, one has to therefore posit on the respondent’s theory of the working of the Act in the Supreme Court Act that in a grievous case of want of natural justice or fairness on the part of a single judge of the Supreme Court, a superior court, that there is no judicial remedy within our hierarchy.

MR TRACEY:   That is so, your Honour, and that was specifically held ‑ ‑ ‑

KIRBY J:   You would need very clear legislation, as far as I am concerned, to leave a litigant in this country in that state.

MR TRACEY:   That is our respectful submission, your Honour, and it is for that reason that we have pursued this appeal.

GAUDRON J:   Now, does that bring you directly to Rabel?

MR TRACEY:   Yes, it does, your Honour.  Your Honour, we looked at Rabel yesterday, shortly, because his Honour Justice Gummow asked me how Kemper had been treated in Rabel, but before coming to that I would just note that the court spent a good deal of time prior to that in its reasons starting at 49 with examining Lane v Esdaile and Stevenson’s Cases.

It then referred to Bland and then came to Kemper and we submitted yesterday that the treatment of Kemper was somewhat curt and did not, in our respectful submission, explain clearly the basis upon which the Court of Appeal determined that Kemper was distinguishable and certainly did not deal with this question that was central to the decision in Kemper, namely, that there is a distinction to be drawn between intra‑curial appeal arrangements and attempts to engage a court in judicial review type proceedings.  The judgment then, at paragraph 22 at the bottom of page 52, turned to the “purpose and policy” as the court saw it of section 148 and the court then said that that purpose engaged the Lane v Esdaile principle such that 148 was to be taken as providing the contrary intention needed for the purposes of section 17(2).

GAUDRON J:   At page 53 their Honours say this, towards the top of the page:

Similarly, where the power conferred is to give leave to do something other than appeal, such as to bring proceedings for judicial review, the principle –

that is the Lane v Esdaile principle –

will probably not apply –

They refer to Kemper but then it seems to be that they have treated this as a strict appeal.

MR TRACEY:   I think that is so, your Honour, and we submit that in doing that they have erred and that what was in substance being sought was judicial review of the Tribunal’s decision. 

GAUDRON J:   Leave to commence a proceeding for judicial review, in essence.

GUMMOW J:   Yes, that is right.

MR TRACEY:   Yes, your Honour.

GAUDRON J:   And, prima facie, on their Honours’ reasoning, that would then attract what was said in Kemper.

MR TRACEY:   Yes, your Honour.  At 23 they refer to the line of authority that we have already referred to more than once in these submissions relating to commercial arbitration legislation in this country and, in particular, they mention the Civil Tech decision in South Australia where the Full Court of that State specifically held that provisions in the Commercial Arbitration Act that are not materially different in terms from section 148 did not attract the Lane v Esdaile principle and the Court of Appeal, in substance, says we are not seeking to “cast any doubt” on the correctness of those decisions but that is really as far as they take their analysis of them.

Then the final paragraph summarises their reasons.  Now, that is as far as they go in explaining why it is that they came to the conclusion they did and we submit that for the reasons that we have advanced in this Court that they were in error of doing so.

KIRBY J:   Essentially their reasoning is an expressio unius type reasoning.  Because the Supreme Court Act provided two streams, because

you have exhausted one stream, that is a special provision and excludes the general rule but once you get into a Supreme Court, normally you pick up all the incidents of the Supreme Courts.

MR TRACEY:   Yes, your Honour.

KIRBY J:   And there are reasons of principle why that may be so.

MR TRACEY:   If the Court pleases, they are the submissions in support of the appeal.

GAUDRON J:   Thank you, Mr Tracey.  Yes, Mr Berglund.

MR BERGLUND:   The Court has had its attention drawn to the provisions of the Rabel decision in paragraph 22.  Our submissions are that this really is a case of a question of power to either appeal or commence some kind of judicial review of the decisions of the ‑ ‑ ‑

MR BERGLUND:   I am afraid, Mr Berglund, the acoustics, because of the rather peculiar structure in this courtroom are not the best.

KIRBY J:   It has lots of beauties but they seem to absorb the sound.

MR BERGLUND:   I am glad to hear that, your Honour, because I am partially deaf and I was just wondering whether or not my deafness had gone worse over the last few days or not.

KIRBY J:   No, we suffer from the same problem, fortunately.

MR BERGLUND:   Now, your Honour, our submission is that the decision in Rabel is particularly concerned with the wording of the sections and, in particular, section 148 of the VCAT Act.  The Act established the administrative tribunal and set up a procedure whereby there could be appeal from that tribunal.

Under section 148 it specifically provided that in certain circumstances an appeal was to be made to the Court of Appeal who would hear it and in other circumstances the appropriate arm of the Supreme Court to hear it was the trial division.

KIRBY J:   But do you agree with the analysis that we heard yesterday that essentially the reasoning behind that is one of judicial deference and hierarchy?  The cases that go to the Court of Appeal are cases from judges.  The cases that do not go to the Court of Appeal are cases from the Tribunal.  There is nothing more to it than that.

MR GERGLUND:   No, your Honour, we - - -

GUMMOW J:   Is not the same sort of thing found in section 44 of the Administrative Appeals Tribunal Act, vis-a-vis the relationship between the AAT and the Federal Court, that, in the past at any rate or perhaps still, some presidential members of the AAT have been Federal Court judges?

MR BERGLUND:   Yes, your Honour, but what we have here though is, under section 148, a specific direction that says that it can go to one or the other ‑ ‑ ‑

GUMMOW J:   Yes, that is right.

MR BERGLUND:    ‑ ‑ ‑if the Court of Appeal or the trial division as the case requires ‑ ‑ ‑

KIRBY J:   Yes, but it is not based on something in the nature of the decision of the administrative tribunal, it is based on who constitutes the administrative tribunal and therefore it is not, as it were, getting into the essence of the nature of the case, that it goes either to a single judge or to the Court of Appeal of the same court.  It is simply following what is – I had forgotten the point Justice Gummow makes, that it applied in federal jurisdiction.  It is certainly the case in New South Wales; you go to the Court of Appeal if you are from a judge, and that is all it is.

MR BERGLUND:   There is nothing - your Honour is quite correct.

KIRBY J:   Old world courtesies.

MR BERGLUND:   Well, there may be certain things within the Victorian Civil Administrative Appeals Tribunal, which can only be dealt with by a presidential or vice-presidential member.  So that, in part, it is not just a matter of deference, it is a question of jurisdiction as well in the Tribunal. For example, I think injunctive relief may be something which ‑ ‑ ‑

KIRBY J:   That was true in the federal sphere too.  I think only presidential members in the old days could make certain migration decisions and do certain things.

MR BERGLUND:   So that there is a jurisdictional division as well, but the Court of Appeal in Rabel was concerned particularly with the wording of the section.

GAUDRON J:   But did their Honours not have to find express provision denying an appeal to satisfy the terms of section 17(2)?

MR BERGLUND:   Their Honours were able to find express provision by necessary intendment.

GAUDRON J:   Well, that seems to me to be a problem.  Section 17(2) says:

unless otherwise expressly provided –

It does not say, unless otherwise provided expressly or as a matter of necessary intendment.

MR BERGLUND:   In that respect, your Honour, the court could have relied upon the decisions such as the decision of Rose v Hvric in this Court, which was a decision involving the question of the phrase “except where otherwise expressly provided”.

KIRBY J:   What is the reference to that decision?

MR BERGLUND:   The reference is 108 CLR 353 and I believe it is in the appellant’s book, case No 26. The Court there was looking at the question of section 74(1) of the Justices Act.  The issue arose because a person had been convicted on a second occasion on breaches of the Licensing Act and the Magistrates Court was wanting to not impose a term of imprisonment.  If you turn to page 356 the Justices Act is set out, the relevant section:

Except where otherwise expressly enacted when a court of petty sessions has authority under this or any other Act now or hereinafter in force to impose imprisonment for an offence punishable on summary conviction and has not authority to impose a penalty for that offence the court when adjudicating on such offence may notwithstanding if it things that the justice of the case will be better met by a penalty than by imprisonment impose a penalty of not more than One Hundred pounds.

HAYNE J:   Well the key to their Honours reasoning is at page 358, is it not, where they say that:

“expressly” may be used as the antonym of “impliedly” - - -

MR BERGLUND:   That is correct.  It goes on at the second paragraph:

But while in s 74(1) “expressly” cannot be understood as excluding enactments by implication, the distinction is not to be overlooked between a mere inference from an enactment and the enactment itself.

So that “expressly” can be by necessary intendment rather than by the actual words themselves specifically providing for there to be no appeal.

KIRBY J:   But there is still a lingering point in the problem and that is that one would expect that to take away a right of appeal in the highest court of the State by a collegiate court which has the general supervision of all the courts of the State that has a direct line to this Court, you would need not only express legislation, but clear legislation, because it is taking away a very valuable entitlement and, if I can say so, particularly in this case where the primary judge gave no reasons.  I do not want to take you into that by‑way because you will deal with that in your time, but it is an illustration of the fact that, at least from my point of view, you need very clear legislation taking away such a valuable right.

MR BERGLUND:   I could address the reasons issue now, your Honour, because ‑ ‑ ‑

KIRBY J:   You are not to blame for the lack of reasons, and we do not hold you personally responsible, but it does illustrate the problem that has arisen in this case.

MR BERGLUND:   I accept that, your Honour.  Whether or not reasons should be given is, in our submission, the second question to ask.  The first question is whether or not there is a right of appeal.

GAUDRON J:   No, it is whether or not there has been a determination.  The first question is whether there has been a determination.  The second question, if there has been, is whether it has been taken away.

KIRBY J:   And you say it is the second question to ask, but on your theory of the Act the appellant cannot ask it; cannot ask it in the Court of Appeal.

MR BERGLUND:   No.

KIRBY J:   And why then is it a second question to ask?  As far as you are concerned it is not a question and it ought to be a question, as to whether a judge of a superior court, a constitutionally mentioned court in the Constitution of this country, in a case which, on your theory, finalises the whole matter, can dispose of it without giving even a sentence.  We labour to give a sentence or two.

MR BERGLUND:   Your Honour, I think it has been said somewhere that reasons are always permissible, often desirable and sometimes necessary.  The position we would submit is that reasons may have been desirable in this particular instance because of the, perhaps, nature of the process being involved, but in this case, as his Honour Justice Hayne pointed out, the appellant was a person who had the benefit of reasons before Mr Gibson.

KIRBY J:   Yes, but they had altered their situation and they had come before the court, they had paid extremely expensive counsel to come and argue the case and they do not know to this day why they lost.  How long did the argument before Justice Balmford take?

MR BERGLUND:   It took, I think if not all of the morning, most of the morning.

KIRBY J:   The whole morning, and then suddenly they say, “You have lost, out you go”.

MR BERGLUND:   Your Honour, whether or not reasons are necessary, we say and submit is that really it is not sufficient justification for saying there should be an appeal.  Whether or not there is a right of appeal depends upon the provisions of the legislation itself and the Court of Appeal considered the wording of the legislation and found that there was sufficient necessary intendment in that wording to justify the finding that there was no right of appeal.

HAYNE J:   Now, this is the so-called bifurcation point.  I read what the Court of Appeal said in Rabel about bifurcation of appeals.  What do you say is the argument that underpins it?  What does it matter that there are two paths prescribed by section 148(1)?

MR BERGLUND:   Section 148(1) specifically directs the power to give leave to appeal to the Court of Appeal or the trial division, as the case requires. The bifurcation argument arises because until the establishment of the Court of Appeal in 1994, I think it was, in Victoria, you had references to the Supreme Court and you may have had the situation which would arise where you were asked to obtain the leave of the court and that could include either a leave of a judge sitting in the trial division or the Full Court, at that stage, sitting as the Full Court. There are provisions, for example, in section 17A of the Supreme Court Act, which provides, for example, that an order by consent:

is not subject to appeal to the Court of Appeal except by leave of the Court of Appeal or by leave of the Judge –

so that you have there the possibility of consecutive appeals or consecutive applications for leave to appeal. This instance - and I take your Honours to section 17A(3A) of the Supreme Court Act.  That provides that:

An order made by the Trial Division constituted by a Judge on an appeal to the Court –

(a)  under section 148(1)(b) . . .

is not subject to appeal to the Court of Appeal except by leave of the Court of Appeal or by leave of the Judge constituting the Trial Division.

So again you have there, once you get past the first barrier to the trial division, another filter to prevent appeals from going up.  You need the leave of either the Court of Appeal or the trial division.  But that is to be ‑ ‑ ‑

HAYNE J:   And you could have successive applications, could you not?

MR BERGLUND:   You could.

HAYNE J:   You could apply for leave to the single judge, refused, and then renew an application before the Court of Appeal.

MR BERGLUND:   Yes.

HAYNE J:   Which reflects backwards.  What does it matter in 148(1) that there is separate mention of application for leave to Court of Appeal or Trial Division, as the case may require?

MR BERGLUND:   The answer, we say your Honour, is that it is an indication that it was intended that the Court of Appeal is able to control those matters which go to it.  It is the trial division which was intended to control those matters which go to it.  If there is a right of appeal from a refusal, or even the granting of leave, then in practice what will be happening is, that the Court of Appeal will, in effect, be exercising the right to determine whether or not there ought to be leave to appeal.

HAYNE J:   That assumes, does it, that you can approach the Court of Appeal as of right in respect of grant or refusal of leave by a trial judge?

MR BERGLUND:   Yes, that is the appellant’s position.

HAYNE J:   I know that is what the appellant says.  Is it your proposition?

MR BERGLUND:   No.  Our proposition is that the words in the section are there to provide a mechanism for each division of the court being able to control the business which it is going to deal with.  It is, as I pointed out, a possible recognised mechanism or means whereby they can give consecutive rights by the wording to the Court of Appeal or the trial division application or leave being granted by the court, one division or the other, but in this instance they have specifically chosen a set of words which provides that it is to the Court of Appeal or the trial division “as the case requires” gives leave to appeal.  Had they chosen to give the ability to have consecutive appeals, they would have deleted the words “as the case requires”.  What the appellant is asking this Court to do is, in fact, ignore those words, in effect, and to ‑ ‑ ‑

GAUDRON J:   Well, not necessarily on one view.  It might be that, if you be right in that, that if the trial division refuses leave the only order that can be made by a Court of Appeal on appeal is referring it back to the trial division.

MR BERGLUND:   We considered what kind of orders could the Court of Appeal make.

GAUDRON J:   And, primarily, one would think that is what the order would be, if there is an appeal, in a case such as this.

MR BERGLUND:   It would depend upon - perhaps getting back to your Honour Justice Kirby’s point - whether or not there were reasons given, what were the reasons and so on and so forth, but the Lane v Esdaile point, the Stevenson point, raises the issue of whether or not you end up with the appeal division, in effect, telling the trial division what to do and how to do it.

GAUDRON J:   Or giving them guidance in the exercise of their curial paths.

MR BERGLUND:   Giving them guidance in the exercise of the judicial power may be one thing ‑ ‑ ‑

GAUDRON J:   Well, on your argument, there would be no opportunity for the Court of Appeal to give the trial division guidance in these matters.

MR BERGLUND:   No, your Honour.

KIRBY J:   It is an odd result, is it not, in our system or hierarchy.

MR BERGLUND:   It is an odd result.  I cannot argue against that proposition that it is ‑ ‑ ‑

KIRBY J:   And, moreover, it is a result that seems to be out of step with the new 17A(3A).

MR BERGLUND:   Except that the new 17A(3A) seems to - if the appellant is correct, a person who is refused leave has a right to go to the Court of Appeal, if one puts aside the question of whether or not it is an interlocutory application or not.

GAUDRON J:   Well, on one view, section (3A) does not deal with this problem at all.

MR BERGLUND:   No, but section (3A) would, in our submission, be set against the background of Rabel, whether it is right or wrong.  But against the background of Rabel there was no need to have anything provided in 17A(3A) or anything of that kind.

KIRBY J:   Well, why did the Parliament of Victoria go to all that trouble to enact it?

MR BERGLUND:   Because they were dealing in 17A(3A) with those cases where the appellant had got past the first hurdle; had been granted leave.

KIRBY J:   In other words, you say “order” must mean, in the context of the line of authority in the Court of Appeal, affirmative order, granting leave?

MR BERGLUND:   Yes.

KIRBY J:   But it does not say that, does it?

HAYNE J:   Or order disposing of the appeal.  Or is it an order dealing with leave or order disposing of the 148 applications?

MR BERGLUND:   No, it is an order made by the trial division on an appeal.  So that it is not on an application for leave to appeal; it is on an appeal.  So that it is dealing with that - once you are past the first hurdle.

HAYNE J:   So, no appeal on matters of substance to the Court of Appeal without leave?

MR BERGLUND:   That is correct.

KIRBY J:   If, contrary to the submission of the appellant, one takes the view that, in Lord Denning’s opinion about interlocutory orders, you have just got to look it up and you would classify this one, looking it up, as interlocutory, then you need leave and that removes the problem of possible abuse of the Court of Appeal and that gives you the opportunity in the leave application to knock it out and say, “Well, this is just not a suitable matter or it is vexatious or the matter is settled, there is no point of law, a peremptory procedure.”

MR BERGLUND:   Yes, your Honour.  Whether raising the interlocutory nature of this application was a good point or a bad point, it seemed to be a necessary point to raise because it does focus attention on what is, in fact, the precise nature of the appeal process which the appellant sought to invoke by going ‑ ‑ ‑

KIRBY J:   Yes, but the appellant says that had you taken a point that it was not a matter for appeal, but for application for leave to appeal, they would and could have sought a change of their process to an application for leave, and I do not think we can really get into that.

MR BERGLUND:   No, I would not want to argue that, had the point been raised.  It was raised in Rabel.  The point was raised.  There was an application for leave to appeal being made and also an application to file a notice of appeal out of time.  The Court of Appeal dealt with the issue on the basis that you really come then to the next step:  “Well what is the use of giving leave if we cannot hear the appeal in the first instance?”

HAYNE J:   But a lot of the incongruities to which you seek to point in the construction of these two provisions fall away if the question of leave is a matter that is open to reconsideration in the Court of Appeal, but only by leave, because it is an interlocutory order made below.  If that is so, then if the trial division, for whatever reason, develops a body of law that is quite wrong, about the principles upon which leave should or should not be granted, the Court of Appeal can correct it.

MR BERGLUND:   Your Honour, that is so if, in fact, the wording of the legislation is not sufficiently clear to ‑ ‑ ‑

HAYNE J:   Well, you stand or fall on the bifurcation point, do you not, Mr Berglund?

MR BERGLUND:   On the bifurcation point, yes, we do stand or fall on that, and the wording of the legislation itself.

GUMMOW J:   Now, can I take you back to Rose v Hvric, 108 CLR?

MR BERGLUND:   Yes.

GUMMOW J:   As Justice Hayne pointed out, the crucial passages seem to be at 358, beginning on the last two lines of 357.  Three authorities referred to in that paragraph at 358, Goodwin v Phillips, Metropolitan District Railway Co v Sharpe and Chorlton v Lings, none of them, as far as I can see, are dealing with statutes involving jurisdiction of courts, conferring the original jurisdiction upon courts.  There are competing principles, are there not?  Namely, you would not readily perhaps treat someone as shut out and you might take the word “expressed” as meaning what it, prima facie, might mean.  In other words, you would not shut them out by giving it some attenuated meaning involving necessary intendment.  Now Rose v Hvric itself, of course, was a case about courts, I know, but these other ideas do not seem to have been put to the Court.

MR BERGLUND:   Rose v Hvric was a question of power in the sense of can you impose or should you impose a term of imprisonment rather than a fine.

GUMMOW J:   Yes, it was not a jurisdictional threshold point.

MR BERGLUND:   It was not a jurisdictional point, but the provisions of 148 are there to enable an appellant, or would be appellant, to effectively, in the end, be shut out of the appeal process.

GUMMOW J:   No, to be shut out from any judicial review.  Just forget about this word “appeal”.  It is used in State legislation quite mischievously, in my view.

MR BERGLUND:   Well, to be shut out of judicial review.

GUMMOW J:   Yes.

MR BERGLUND:   The issue we have here is whether they are shut out at first instance or on appeal to the Court of Appeal ‑ ‑ ‑

GAUDRON J:   Well, if you shut out at first instance, you shut out entirely.

MR BERGLUND:   You are shut out entirely, yes.

KIRBY J:   I am still stunned by Justice Gummow’s reference to State legislation.  I mention that in some federal legislation applications to federal courts from administrative tribunals are called appeals, so the mischief flows over to federal legislation.

GUMMOW J:   Yes, but this Court has said, it does not mean what it says.  State courts seem to assume it does mean what it says.  That is my point.

MR BERGLUND:   With respect, our point is that it is a question of being shut out; it is a question of the point at when you are shut out.  If you are shut out at the first instance, as the appellant was in this case ‑ ‑ ‑

GAUDRON J:   But is it not true that provisions shutting a person out of a court are strictly construed and are not construed as having any greater effect than their words necessarily dictate?

MR BERGLUND:   I would accept that, your Honour.

GUMMOW J:   This is fairly basic stuff really.  These are fairly basic ideas to the whole structure of constitutional government.

MR BERGLUND:   Your Honour, we do not quarrel with those ideas, and we come back to the point that we submitted a few moments ago, and that is that we stand or fall on the wording of section 148.  That is, if the section does, and is to have, any meaning, it must be read in its entirety and there must be some meaning given to the words, “as the case requires”.

KIRBY J:   Well, one meaning that one could give consistently with the appellant’s submissions would be, “as the case may be”.  If it has gone to the Court of Appeal, they deal with it; if it has gone to the trial division, they deal with it, and support for that is from the hierarchical character of this bifurcation rather than something of the essence of the nature of the orders that are made.  I take your point that sometimes, because a judge is involved, only judges can deal with certain matters, but fundamentally it is a matter of courtesy and it is reflected in New South Wales and federal legislation that, if the order is of a judge, you go to the Court of Appeal, if it is not, you go to the trial division, even though some decisions that go to the trial division will be extremely important and involve a lot of money, as I assume this case potentially does.

MR BERGLUND:   Yes, your Honour.

KIRBY J:   Does this case involve a lot of money?  I mean, is there a lot of tax involved?

MR BERGLUND:   I think there are a number of years of assessments and penalties which, I think, amount to be something like $400,000 to $500,000 in payroll tax ‑ ‑ ‑

KIRBY J:   Well that is a lot of money.

MR BERGLUND:    ‑ ‑ ‑but, more importantly, you can add to that each year that as the establishment operates, it continues to incur the liability, so that it is a matter of some significance in ‑ ‑ ‑

KIRBY J:   All of that is ‑ ‑ ‑

GUMMOW J:   Well, the basic question is, the levying of taxation, without any recourse, in Victoria, as of right, to a Victorian court, in the exercise of a judicial power to determine whether this exaction was one which the Parliament was authorised to be made by the executive.  That is a fairly fundamental idea.

MR BERGLUND:   Well, your Honour, firstly can we say that, as I understand the appellant’s position, they are wishing and supporting the proposition that they can appeal to the Court of Appeal on an issue which is a judicial review, which does not necessarily involve an examination of the merits of the imposition of taxation, on that particular client.

KIRBY J:   Well, they argued for half a day, you tell us, on whether or not they were liable to the tax.  They want to go to the Court of Appeal for two reasons:  one, to contest an assumption that the situation had not changed; and two, to contest an assumption that the primary judge did not have to give any reasons, though $500,000 was at stake and they had argued for half a day with expensive lawyers.

MR BERGLUND:   Perhaps I have mislead you, your Honour, and I apologise; the half-day argument was to determine whether or not there was an error of law in the decision and ‑ ‑ ‑

KIRBY J:   Yes, but it is still half a day’s argument.

MR BERGLUND:   A half-day argument about whether it was and at the end of the day the argument ranged from, is it a different case or is it not a different case from that which was decided by the Court of Appeal in the first Roy Morgan Case. 

But getting back to the issue of whether or not you can - without a remedy for challenging the assessment of taxation, the provisions of the taxation appeals legislation in Victoria provides two streams for us challenging taxation assessments.  You can go through to the Victorian Civil and Administrative Tribunal and then, with leave, go to the Supreme Court and then, with leave, to the Court of Appeal.  You can go directly to the Supreme Court on an assessment, and you can ask that the notice of objection to the assessment be treated as an appeal and it be dealt with by the Supreme Court.  So that it is not a case where, as your Honour Justice Gummow provides, that there is no right of challenge; it is a mechanism whereby people can choose which way they wish to challenge the issues before ‑ ‑ ‑

GUMMOW J:   It resembles the federal system to that, to an extent, but it has always been assumed that in the federal system, if you go the board of review route, you could get, it used to be to get to this Court, on a question of law.

MR BERGLUND:   And if there was a question of law involved in this instance you could still get to the Court of Appeal, but what happened was ‑ ‑ ‑

KIRBY J:   But only if (a), the judge at first instance sees it; and (b), gives reasons that facilitate or gives a grant of leave, but if the judge does not see it, gives no reasons and refuses the leave, though half a million dollars is at stake, and though they have been argued for half a day, you are at the end of your road.  It does not sound a very – I mean, it may be required, but I keep saying this because to be required, as far as I am concerned, it will have to be required very clearly.

MR BERGLUND:   Your Honour, I think that is the issue that the Court has to decide.  In Rabel the Court of Appeal addressed all of the issues that have been addressed today and yesterday.  They felt ‑ ‑ ‑

GAUDRON J:   But in that decision their Honours did seem to think a different situation would be brought about if one were dealing with leave to commence a proceeding.

MR BERGLUND:   Yes.

GAUDRON J:   And is that, in fact, not exactly what was happening here?  It is called an appeal, but is that not what was happening?

MR BERGLUND:   Their Honours considered that it may be a different situation when there was a question of judicial review because – and although they do not state it, our submission is that on the question of judicial review, the courts have traditionally, and always had, the jurisdiction to deal.

GAUDRON J:   And is that not what was happening or what it was attempted to bring about?

MR BERGLUND:   The jurisdiction of the Supreme Court to deal with these matters is to be found in section 148, if you invoke that procedure.

GAUDRON J:   Yes, but was it not an attempt to have judicial review; an attempt to commence an action for judicial review rather than an appeal?

MR BERGLUND:   Your Honour, I would submit that that is not the correct way to consider this matter.  It is the attempt to exercise the right under section 148 which, mischievously or otherwise, Parliament has said is an appeal.  It may be akin to judicial review, but judicial review is there because the courts have the jurisdiction to determine that matter and they have always had that.  Here you are exercising a statutory right to refer the matter to the Supreme Court.  It may very well be that perhaps a taxpayer could choose not to follow the section 148 route; the taxpayer may choose to try and impose or obtain some kind of judicial review over the acts of the Tribunal.

That would raise another issue again as to whether or not there is the sole mechanism through 148 or whether there are separate ways of challenging the Civil and Administrative Tribunal’s decisions, but this appellant has chosen to exercise the statutory right under section 148 and our submission is that the wording of that section is, as found by the Court of Appeal, clearly expressing a necessary intendment, that if you do it this way, and you rely upon these provisions, then you take with it the fact that it is the trial division which is controlling its own workload and own processes that has to make the decision whether there is an appeal allowed.  If you choose, and you need to go to the Court of Appeal, it is the Court of Appeal which is imposing its own decision and making its own decisions for the right to appeal.

KIRBY J:   But on your theory the litigant does not have that privilege; the litigant is fixed, is it not, with the person that is assigned to hear the case in the Tribunal; some administrative decision or decision made by Parliament.  Could this litigant have been assigned a presidential member of the Tribunal, within the powers of the president to assign the disposition of hearings in the Tribunal?  Could the president have said, “Well, there is half a million dollars at stake here, we had better get a judge to look at this.”?

MR BERGLUND:   There is no reason why it could not have been assigned a presidential member.

KIRBY J:   Well, that means that some administrative decision made by somebody within the Tribunal determines where the litigant has the case heard and determined, on your theory of the Act.

MR BERGLUND:   Yes.  The point we make though is that it is then the Court of Appeal which makes the decision, but it is only one body which makes the decision whether to grant or not grant leave.

KIRBY J:   Well, if the standards that are set by the Court of Appeal are any indication, they give reasons, and they give clear reasons and you are not left in any doubt as to where you stand and if you do not like it, you can come to this Court with reasons which can activate a special leave application.  It is quite difficult to get into this Court if you come up the route that this particular appellant has come.

MR BERGLUND:   Without being critical of her Honour, it may have been unwise for her not to have given reasons but, we would submit, that that does not detract from the fundamental principle that we are supporting here that the Court of Appeal in Rabel held that when one looks at the wording of the section its necessary intendment is that the trial division controls its own workload and the Court of Appeal controls its own workload and that if you are permitted an appeal and you permitted applications for leave to appeal, if it be an interlocutory application, the effect would be that it would be the Court of Appeal which is giving leave, in effect to - - -

GAUDRON J:   Well, not necessarily.

MR BERGLUND:   Not necessarily, they could refer it back to the trial division ‑ ‑ ‑

GAUDRON J:   But it seems very odd that one’s right to judicial review of an administrative decision confirming the imposition of tax should depend on a scheme which you say is really intended to affect the resolution of a demarcation dispute between branches of the judiciary.  I mean, it is hard to imagine that 148 is there to settle a demarcation dispute, is it not?

HAYNE J:   The question is, who conveniently belongs, I would have thought?

GUMMOW J:   Now, do you accept that the determination, to use that word, of the primary judge here, Justice Balmford, produced an order that she made, an order of the Supreme Court?

MR BERGLUND:   Your Honour, I would accept that it resulted in an order being produced.

GUMMOW J:   I am asking you that, for this reason, why then would they not have then made an appeal direct to this Court, by special leave, within the operation of section 35 of the Judiciary Act and section 73 of the Constitution?

MR BERGLUND:   Your Honour, I had not thought of that point, but ‑ ‑ ‑

GUMMOW J:   Well, it is hardly an attractive proposition that these litigants, shut out of the Victorian Court of Appeal, come here directly or seek to come here directly.

MR BERGLUND:   Your Honour, that is a consequence that I had not considered.  Rather I would be perhaps mindful of the fact that if, in fact, that be the result, this Court has the filter of the special leave application to go through ‑ ‑ ‑

GAUDRON J:   Or the burden of it.  It is interesting, some people see it as a filter, some others see it as a burden.

MR BERGLUND:   But it is there.  Similarly, with the Court of Appeal.

KIRBY J:   It is a great pleasure for the Bar.

MR BERGLUND:   Similarly, with the Court of Appeal, if it is interlocutory, there is a filter, and we cannot argue against that.  So that, to an extent, the filter argument falls away.  It is not as strong as one would perhaps hope but, in the ultimate analysis, our submission ‑ ‑ ‑

GUMMOW J:   Well, are you accepting that by leave Mr Tracey could have got to the Victorian Court of Appeal, to appeal against the refusal of leave by Justice Balmford?

MR BERGLUND:   No, your Honour.  We submit that if the application for leave had been made, as undoubtedly it would have been had there been some kind of - this issue addressed, the Court of Appeal would have said quite rightly, as it did say in Rabel, what is the use of granting leave because we cannot hear the appeal?

KIRBY J:   Once the list clerk in the Administrative Tribunal assigns this to a Tribunal member, who is not a presidential member, the dye is cast.

MR BERGLUND:   The dye is cast.  The point is that perhaps the legislature was not concerned with that issue; it was concerned with providing a means of appeal, providing that there is, in fact, the authority given by the appropriate body which is to hear the appeal.  It is a case where, if the dye is cast, so be it, but you have one body to hear it at the Court of Appeal.  What the Court of Appeal does is review the decision of the Tribunal.  What the trial division does is review the decision of the Tribunal.  What Mr Tracey’s client wishes to do is get the Court of Appeal to review the decision of the trial division and, our submission is, as I have said, that the section provides that each of those divisions are to control their own workload and the review of the substantive decision is to be in the Court of Appeal in some instances, in the trial division in other instances.

GAUDRON J:   Now is there anything else in section 148 to which you wish to direct this Court’s attention?

MR BERGLUND:   No, your Honour.  If your Honour pleases.

GAUDRON J:   Thank you, Mr Berglund.  Yes, Mr Tracey.

MR TRACEY:   Your Honour, there are two short points, if I may.  Could I take the Court back quickly to Rose v Hvric because there is a nice distinction made at the end of the joint judgment that we say may be of some relevance in the light of the debate that has occurred this morning. The Court will see at the bottom of 360 on to 361, the Court saying that:

The general provision of s. 74(1) is opposed not by anything that is enacted in s. 154(1) –

the more specific provision –

but at most by an inference of an intention which has not reached the point of enactment.

And we say, with respect, that that is the highest the case against us could be put in relation to the construction of section 148.

The other point that we would seek to address quickly is the bifurcation point and our friend has more than once submitted to the Court that that reflects a legislative intention that each division, the Court of Appeal and the trial division of the court, should have control over its workload and area of operation to the exclusion of the other. Now, we would simply say in response to that, that the new section 17A(3A) is hardly consistent with that analysis or that legislative intention, because, as the Court will note, a matter can go from the trial division to the Court of Appeal with the leave of the trial judge. So that is hardly reflective of an intention that the Court of Appeal should have exclusive control over what it does and does not hear and it works the other way too, because as your Honour Justice Gaudron said in argument, and we respectfully agree, the course that one would expect the Court of Appeal to adopt should we succeed in this appeal and it entertains our application, would be for the matter to be sent back to the trial division to be heard and determined. So that it works both ways and it is not consistent with isolated areas of control or ensuring that workloads are contained within a particular division.

GUMMOW J:   Now what order do you seek from us?  It appears at page 108, does it not?

MR TRACEY:   Yes, your Honour.  Essentially what we seek from this Court is a setting aside of the orders of the Court of Appeal and a remitting of the matter to the Court of Appeal to be heard and determined.  If the Court pleases.

HAYNE J:   As an appeal as of right.

GAUDRON J:   Well ‑ ‑ ‑

KIRBY J:   That has not been litigated.

GAUDRON J:   No.

KIRBY J:   I think that the respondent ought to have the chance ‑ ‑ ‑

GAUDRON J:   To hear your application.

MR TRACEY:   Yes.

KIRBY J:   Perhaps to oppose it on that different ground and that may lead to the Court of Appeal saying it is only by leave, as I am presently inclined to think it is, and we will grant leave because of either (a), the substance of the point of law, we not now being sure we have jurisdiction, or (b) the procedural questions of whether reasons out to be given.

GAUDRON J:   Thank you, Mr Tracey.  The Court will consider its decision in this matter.

AT 11.40 AM THE MATTER WAS CONCLUDED