Roy Morgan Research Centre v Comm State Revenue

[2001] HCATrans 81

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 TUESDAY, 3 APRIL 2001, AT 3.23 PM

Copyright in the High Court of Australia

MR R.R.S. TRACEY, QC:   If the Court pleases, I appear with my learned friend, MR S.J. COOPER, for the appellant.  (instructed by Tanya Cirkovic & Associates)

MR R.L. BERGLUND, QC:   If the Court pleases, I appear with my learned friend, MR P.H. SOLOMON, for the respondent.  (instructed by Solicitor to the Commissioner of State Revenue)

GAUDRON J:   Yes, Mr Tracey.

MR TRACEY:   If the Court pleases, this appeal raises a short but important point of statutory construction.

HAYNE J:   Is it?

GAUDRON J:   How important is it?

HAYNE J:   Is it still?

MR TRACEY:   It is still important and it has implications that range somewhat wider than the context in which it arises.  Your Honours will be aware, for example, of equivalent provisions in commercial arbitration legislation around this country where conflicting views have been taken by differing Supreme Courts.

KIRBY J:   It is not quite equivalent though, is it, because the fact that what is said to stand against you is that your Act in respect of the one court specified a particular venue for particular applications and that that is what means that something has been otherwise provided.

MR TRACEY:   I think, your Honour, that that is an issue that is peculiar to the provisions of section 148 of the Victorian Civil and Administrative Tribunal Act.  The point that is common is whether Lane v Esdaile stands in the way of a right of appeal from a decision to grant or refuse leave to appeal simply by reason of the nature of such provisions.  Now, it is that point that is common to the commercial arbitration legislation and this legislation, because it was that point that informed the Court of Appeal in Victoria in Rabel when it determined that there was no right of appeal of the kind for which we contend.

KIRBY J:   Do you assert a right of appeal?  Would it not, at best, be a right to seek leave to appeal?  I know that you purported to appeal but it would seem to me that this would be classified as an interlocutory judgment and, if that is so, then you would need leave to appeal which you have never really sought.  Otherwise, as is pointed out by the respondent, you are in a position of advantage.  You get two rights which an ordinary litigant would not get.

MR TRACEY:   Your Honour, we do not concede that on a proper characterisation this is a matter in which leave was required because the decision is of an interlocutory nature but, your Honour, that said, even if it be assumed against us that leave was required, there are two answers to our friend’s point.  The first of them is that his client did not seek to strike out our appeal on the basis that leave had not been sought and obtained and the second answer is that there would have been no obstacle to us saying to the Court of Appeal, if the court disagreed with us on the issue, that leave ought to be granted and they should proceed to deal with the matter.

KIRBY J:   This is not raised in the notice of contention in this Court because, as in the last case, it was not the matter that was argued and lost.

MR TRACEY:   That is so.

KIRBY J:   It simply was not argued.

MR TRACEY:   Yes, your Honour.  The only basis upon which the strike‑out was sought and obtained was the point that the court lacked jurisdiction to deal with it on the basis of its earlier decision in Rabel.

HAYNE J:   Is that right?  The summons at page 72 of the appeal book is the summons in the Court of Appeal, is it not?  The basis asserted in that summons is abuse of process.

MR TRACEY:   Yes, your Honour, but not on the basis that leave had not been obtained in an interlocutory matter.  The basis, as appears clear from the transcript, that was agitated was that there was no jurisdiction.

HAYNE J:   Do you accept that under the 2000 legislation in respect of orders made after the coming into force of that legislation of a kind similar to that made by Justice Balmford, you could not go to the Court of Appeal?

MR TRACEY:   No, your Honour.  The amendment that has occurred deals with an appeal proper following the grant of leave.  The amendment is silent on the question of whether there can be an appeal from a refusal of leave.

KIRBY J:   Where do we find the amendment, may I ask?

MR TRACEY:   The amendments, your Honour, appear in section 17A(3A) of the Supreme Court Act.

GUMMOW J:   It is on the back of the respondent’s submissions.

MR TRACEY:   Yes, your Honour.  It has no bearing on the point that is presently before the Court.

KIRBY J:   I suppose the only question is whether special leave might be revoked because of the fact that the importance of the point is narrowed by the amendment of the Act.

MR TRACEY:   We say, with respect, it is not and that it remains an important and vital question as to whether there ought to be an appeal or a right of appeal from a decision to refuse leave to appeal. 

KIRBY J:   That would depend in each State though, would it not, on the State’s own internal appeal law?

MR TRACEY:   Yes, your Honour.

KIRBY J:   For example, that case of Natoli that you have brought to notice indicates that in New South Wales, though it is rare, it does happen.

MR TRACEY:   It does happen.  Your Honour, it happens in South Australia under its commercial arbitration legislation.  It does not under equivalent legislation in Western Australia because that Supreme Court has taken a different view.  The weight of authority in the various intermediate Courts of Appeal that have looked at this matter favours the position for which we contend but, your Honour, it is a live question and it remains notwithstanding the amendments to the Victorian Act.

The question can be framed, we submit, in this way.  It is whether section 148(1) of the Civil and Administrative Tribunal Act otherwise provides such as to preclude an appeal to the Court of Appeal from a single judge’s refusal to grant leave to appeal from a decision of the Tribunal.

KIRBY J:   Can I just ask a point of information that I am not familiar with, being unfamiliar with the Victorian structure of the administrative Tribunal?  In New South Wales in the arrangement of whether you go on an application for leave to appeal or appeal to the Court of Appeal or to a single judge, a factor in the section – I think it is 75A of the Supreme Court Act – is whether the Tribunal or court below was constituted by a judge.  If it was constituted by a judge, however designated – the judge might be personae designatae or as acting as a deputy president of some tribunal – then it goes to the Court of Appeal.  If it is constituted by another person who is not a judge it goes to a single judge and thence to the Court of Appeal.  Now, is that the situation in respect of the Administrative Appeals Tribunal in Victoria?  Are the people who are designated that go straight to the Court of Appeal judges, or not?

MR TRACEY:   Yes, your Honour.  You go straight to the Court of Appeal where the bench included either the president, who is a Supreme Court justice or a vice‑president, who is a County Court judge.  Otherwise you go to the trial division.

KIRBY J:   And are other County Court judges members of the Tribunal who go straight to a single judge of the Supreme Court or not?

MR TRACEY:   Yes, your Honour, but when they are appointed, even on an ad hoc basis, they are appointed as vice‑presidents, so that from a practical point of view ‑ ‑ ‑

KIRBY J:   So it is the same as New South Wales.

MR TRACEY:   Yes, your Honour.

KIRBY J:   In other words, the rationale behind the Court of Appeal as against the single judge was if you are a judge you get the dignity of being reversed by three judges, whereas if you are a lay member of a tribunal you just go to a single judge of the Supreme Court.

MR TRACEY:   Yes, your Honour.

KIRBY J:   So it is partly a hierarchical arrangement rather than anything having to do with the substance of the leave question that is involved.

MR TRACEY:   That is so, your Honour.

KIRBY J:   That, it seems to me, is an argument for your contention.

MR TRACEY:   With respect, your Honour, we so contend.  I have already taken the Court to section 17A.  It may be convenient just to draw attention quickly to certain other of the provisions of the Supreme Court Act that have some present relevance.  The first of them is to be found in section 10(1)(a), which is simply the provision conferring on the Court of Appeal:

jurisdiction to hear and determine‑

(a) all appeals from the Trial Division constituted by a Judge -

One then goes to section 17 which firstly in subsection (1) marks out the jurisdiction of the trial division and then in subsection (2) contains the provision which is critical for the purposes of this appeal:

Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge.

I need to return briefly to section 17A because, in addition to subsection (3A) to which I have already taken the Court, there are certain other provisions which throw some light on the construction of the provisions that are presently in issue.  The Court will note that there are various other provisions in similar form to subsection (3A) where leave is required, either from the trial division judge or from the court before an appeal lies, and the Court will see ‑ ‑ ‑

KIRBY J:   Where is (3A)?  I am sorry, I have lost you, Mr Tracey.

MR TRACEY:   Subsection (3A), your Honour, is the provision that has come into effect since this matter was before the ‑ ‑ ‑

KIRBY J:   That is not in the print that I have been supplied with, unless it is somewhere else.

MR TRACEY:   I think your Honour will find it in the respondent’s submissions at the very back.

KIRBY J:   I have it now, I am sorry.  It is on page 6 of this added section.

MR TRACEY:   Yes, your Honour.  Now, your Honour, that, as I say, was inserted last year following the hearing of this matter in the Court of Appeal.  It has no bearing on it, it had none then.

KIRBY J:   In a way, I suppose, you could contend, or can you, that this helps you in that where Parliament felt it was necessary to make it clear that it was taking away the general right of appeal that runs within the Supreme Court from one judge to the Court of Appeal, from the wisdom of one judge to the collective wisdom of the appellate court, it said so in express terms ultimately.

MR TRACEY:   Indeed, your Honour, and did it in respect of one aspect of appeals from the Civil and Administrative Tribunal but not from the leave aspect, and that is reinforced and it is reinforced, in our submission, significantly by subsection (4) which was there at all relevant times and makes it plain that where the draftsman wishes to shut out a right of appeal, then it is done in quite explicit terms:

An appeal does not lie to the Court of Appeal‑

and then various orders are identified.  The sort of order made here is not amongst them, nor was it added last year when (3A) was added to section 17A.

HAYNE J:   Now, the section uses the word “order”.  Section 17(2) uses “determination”, 17A(3) uses “determination”.  Is “determination” a defined term?  Does anything turn on the use of the two words?

MR TRACEY:   Your Honour, it is not a defined term and we would submit that nothing turns on it.  Relevantly, what we have from the court is an order – I am referring now to the order of Justice Balmford – which simply refused leave and we submit that that is a matter that falls within 17(2) and falls within the word “determination” for those purposes.

HAYNE J:   But is not an order on an appeal under section 148(1)(b)?

MR TRACEY:   No, it is not because there has been no appeal.  As far as our client has got has been an attempt to engage the Supreme Court and has been cut off, as it were, at the pass.  We have never crossed the threshold.

KIRBY J:   Did you seek leave from the trial division?

MR TRACEY:   No, we did not seek leave.

KIRBY J:   Was that available to you in this particular case?

MR TRACEY:   When I say that, your Honour, we did not seek leave to appeal against the refusal of leave.

KIRBY J:   I realise that.

MR TRACEY:   We did seek the leave of the trial division to appeal from the Tribunal.

KIRBY J:   But you did not seek leave from the trial division to appeal further to the Court of Appeal?

MR TRACEY:   No, your Honour.

KIRBY J:   Was that available to you under the Act?

MR TRACEY:   We say we did not need it.  We say we had a right of appeal, it not being an interlocutory matter, and that was the issue I referred to in response to one of your Honour’s earlier questions but, as we submitted then, if that had become an issue and had the Court of Appeal taken a different view, then we could have asked the Court of Appeal in running for that leave, but we did not ask Justice Balmford for it.

Your Honours have also seen the terms of section 148 and I do not return to that.  We submit that in determining whether section 148 of the Civil and Administrative Tribunal Act qualifies the general right of appeal provided for in section 17(2) of the Supreme Court Act, the starting point is the principle adopted by this Court in Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554 and the relevant principle appears in the joint judgment at 560. That principle is the well‑known one that is to the effect that when the legislature chooses to add to the jurisdiction of an established court that it takes that court as it finds it with all the incidents, including the right of appeal, if any, from particular decisions.

Your Honours, our principal submission is that if one uses that as the starting point and looks at the position that the draftsman found himself or herself in at the time at which section 148 was included in the legislation, the position was that there was in section 17(2) of the Supreme Court Act a provision allowing a right of appeal from a decision or determination of a trial judge, including the refusal of leave.  It was a matter that could have been dealt with in section 148 had it been intended to exclude that right in relation to appeals from the Tribunal.  It was not included and accordingly, we submit that there is no other provision that would operate to preclude the right of appeal that otherwise appears.

KIRBY J:   The only question is whether the provisions in the section assigning cases to particular divisions of the Supreme Court is such an expulsion.  But if the rationale for that is judicial hierarchy and courtesy, then that inference disappears.

MR TRACEY:   Indeed, your Honour, and that is our submission and, your Honour, the other way that the Court of Appeal got to that conclusion in Rabel was, of course, by applying Lane v Esdaile, which your Honour will recall suggests that certainly in the situation where you have a leave requirement for an appeal out of time to a court from a decision of a lower court, that the position is that there ought to be read into that provision, as was put in Kemper’s Case subsequently, that the nature of the thing dictates.  The very nature, the essence of the provision is suggestive of a negative that there ought not to be a right of appeal.

Now, your Honours, we submit that that case is, of course, distinguishable but if need be we would also submit that it is wrong and ought not to be followed in Australia at the present time.  We say it is distinguishable because what was being dealt with in Lane’s Case was a limitation provision and it was an appeal in the full sense of that word, an appeal on merit and on the law from the decision of an inferior court.

We submit that the proper characterisation of the right to go to the Supreme Court that is provided for in section 148 of the Civil and Administrative Tribunal Act is far more akin to judicial review.  It is a leave provision but it is leave to go to the Supreme Court on a question of law only, so that there is no question of it being the type of appeal in which the Supreme Court would have to revisit the merits of the matter.  It is judicial review and in that regard we rely, as your Honours have seen in our submissions, on the more recent decision of the Privy Council in Kemper’s Case.

HAYNE J:   Just before you go to Kemper, can I take you back to Lane v Esdaile.

MR TRACEY:   Yes, your Honour.

HAYNE J:   The argument in Lane v Esdaile, the speech of Lord Bramwell and perhaps the speech of Lord Halsbury, seemed to consider the question in terms of whether grant or refusal of leave gave rise to an order that, although it might be called an order, Lord Bramwell at least seemed to acknowledge that there was a debate about whether refusal of leave is properly so characterised.  Now, is Lane v Esdaile to be understood, in part at least, by reference to such considerations?

MR TRACEY:   No, your Honour.  We would submit that the critical principles that emerge out of it are two, that firstly that there ought not to be permitted an appeal from a refusal of leave to appeal because that undermines the very concept of refusal in circumstances where the merits would then be debated.

HAYNE J:   Where do I find that in their Lordships’ speeches?  Just give me the references.  Do not stay to read them.

MR TRACEY:   Yes, your Honour, [1891] AC in Lord Halsbury’s speech at 212 and, your Honour, to like effect, Lord Herschell at 214 to 215 and Lord Field at 216.

GAUDRON J:   Now, is the passage in Lord Halsbury this - I am looking at about point 6:

because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question.

Is that the passage to which you ‑ ‑ ‑

MR TRACEY:   Yes, and the sentence immediately below it, your Honour.

GAUDRON J:   Does that not seem to say that there is no right of appeal from a decision granting or refusing leave to appeal?  Is not that the ratio of Lane v Esdaile?

MR TRACEY:   It is, your Honour, in respect of appeals properly so called from an inferior court to an appeal court.

GAUDRON J:   Right.  Well, do not we have to ask ourselves what is the nature of a proceeding for leave?

MR TRACEY:   Yes, your Honour.

GAUDRON J:   Whether a decision in that regard is a determination, that being for the purposes of ‑ ‑ ‑

HAYNE J:   Section 17(2).

MR TRACEY:   Section 17(2), your Honour.

GAUDRON J:   Yes.

MR TRACEY:   Yes, you do.

GAUDRON J:   Is not that where we start?

MR TRACEY:   Yes, your Honour, and we submit that it is.

HAYNE J:   Which leads to the conclusion that the disappointed party can appeal the grant of leave.

MR TRACEY:   Yes, your Honour.

HAYNE J:   And the proceeding can be fractured, can it?

MR TRACEY:   The potential for it being fractured is there.

KIRBY J:   Not if you require leave because then courts can take charge of it.  You have to come to a barrier and it could be expedited and it could be dealt with fairly peremptorily and they can either grant or refuse leave, depending on whether there is a big point, an obvious mistake, a failure or a failure to give reasons.  That is why it seemed to me that you need leave.  It solves the whole problem.

MR TRACEY:   Your Honour, what we would submit is that there are procedural avenues that could be adopted that would avoid fragmentation in any meaningful sense because the application could be brought on quickly and dealt with quickly without putting back what would inevitably be a delayed hearing date for the appeal in any event.

HAYNE J:   It sounds like you are applying for leave to appeal against a ruling made in the course of a committal hearing, Mr Tracey.

GAUDRON J:   But did this Court not deal with something similar in Smith Kline & French in relation to the nature of special leave in this Court?

HAYNE J:   But it is leave to engage the processes of the court that you are concerned with, rather than the processes of the court engaged giving rise to a disposition of a matter.

MR TRACEY:   Yes.

GAUDRON J:   Was the question of leave to appeal in criminal cases not considered in relation to South Australia by this Court?

KIRBY J:   This, of course, would be special leave in the context of this Court as the final court.

GAUDRON J:   Yes, but I am thinking in both cases something about the nature of leave to appeal was said, or the nature of the process that was engaged and, of course, it may well be different following a criminal trial but here you have something which is an administrative decision, clearly enough, not to be reviewed except on a question of law and only then with leave of a judge.

HAYNE J:   I have in mind also Justice McHugh in one of the North Ganalanja Cases had occasion, I think, to say something about the consequences of grant of leave or refusal of leave.  My memory of it is very poor.

MR TRACEY:   Your Honour, we would have thought that the closer analogy was a decision by a single Judge of this Court to refuse to grant an order nisi for a constitutional writ.

GAUDRON J:   Well, why?  Why is that a closer analogy?

MR TRACEY:   Because, your Honour, what is involved here is judicial review of an administrative decision.

GAUDRON J:   Yes.

MR TRACEY:   It is not an appeal in the full sense.

GAUDRON J:   But it is a review for error of law.  If you are back in the old prerogative writs, it would only be for jurisdictional error of law. 

MR TRACEY:   Yes.

GAUDRON J:   You have a slightly wider ground but with leave.

MR TRACEY:   Yes, your Honour, so that is why we say that is closer than either a special leave matter generally or a special leave ‑ ‑ ‑

GAUDRON J:   Does the Act exclude relief in the nature of prohibition or mandamus?

MR TRACEY:   The practical effect of the refusal of the ‑ ‑ ‑

GAUDRON J:   No, no.  Just the Act itself, whichever it is that includes section 148.

MR TRACEY:   I am sorry, your Honour.

CALLINAN J:   Is there a privative clause?

HAYNE J:   In the VCAT Act?

MR TRACEY:   I think the answer to that, your Honour, is no, other than 148 itself in so far as it limits any right to come to the court, but I will need to check that to be certain.

HAYNE J:   But would that mean that save on discretionary grounds – I can understand the discretionary grounds being engaged to refuse your Order 55 relief, but would you not have relief under – I think it is Order 55, is it not, of the ‑ ‑ ‑

MR TRACEY:   I think your Honour is thinking of Order 56.

HAYNE J:   Am I?

MR TRACEY:   Orders in the nature of prohibition, certiorari.

HAYNE J:   Prohibition, certiorari, et cetera.

MR TRACEY:   Yes.

HAYNE J:   Now, I can understand the discretion being engaged saying no, you have an alternative remedy, but there is nothing to preclude you, is there?

MR TRACEY:   I think the answer to your Honour’s question is, yes, Order 56 is available but, of course, any attempt to engage it in the face of section 148 is likely to be met with the discretionary consideration to which your Honour refers and, indeed, has been done so by this Court.  I think the case that comes quickest to mind is Waters’ Case where there was an attempt to challenge the decision of the Victorian Equal Opportunity Tribunal using both avenues and this Court said it was inappropriate to use Order 56 when there was an express statutory, albeit a limited right, on legal grounds that should have been pursued.  So that yes, it is open in theory, your Honour, but in practice ‑ ‑ ‑

GAUDRON J:   Does the analogy, though, really stand up?  What is the difference between an order nisi – this is the question you must ask yourself – and an application for leave?  Is it not that where there is a requirement for leave the jurisdiction is not attracted until the leave is granted, whereas with an order nisi the jurisdiction is there all the time and jurisdiction is attracted by seeking the order nisi?

MR TRACEY:   Your Honour, we would say that the section 148 right to approach the court on a question of law is there all the time.  It is simply a question of persuading the court that you have a prima facie case, an arguable case on a question of law in order to cross that threshold and, in that respect, we would say that there is no material difference with the principles that would be applied by a single Justice of this Court in determining whether or not to grant an order nisi.  Now, if that is the correct characterisation, as we submit that it is, then we submit that Lane v Esdaile is clearly distinguishable because ‑ ‑ ‑

GAUDRON J:   Not that it is wrong?

MR TRACEY:   We do not have to go that far, your Honour.

GAUDRON J:   Well, you say not.

MR TRACEY:   If need be we would, but we say we do not have to.

GAUDRON J:   And why is it wrong?

MR TRACEY:   Your Honour, because it is founded on two propositions.  It is founded on the first proposition that it would undermine the efficacy of such a provision and, in particular, the use of such a provision in order to avoid frivolous and vexatious matters occupying court lists.  The second point is that the sort of power involved is inherently inconsistent with a right of appeal.  Now, we say both those foundations are wrong, that the first problem of avoiding frivolous and vexatious appeals can be dealt with on appeal by the Court of Appeal saying, “You haven’t got an arguable case”, and dismissing the appeal so the lists do not become clogged.

GAUDRON J:   But is 148 not a jurisdictional provision?  Is it not a provision conferring jurisdiction?

GUMMOW J:   On the Supreme Court.  I mean, the word “appeal” is a misnomer really.

MR TRACEY:   Yes, your Honour.

GUMMOW J:   The first exercise of judicial power in Victoria takes place when 148 operates, does it not, and that grant of jurisdiction is conditional upon leave being given?  Is not that the way it works?  Is not that the effect of the closing words of 148(1) – “if”?

HAYNE J:   You can start a proceeding with leave.

MR TRACEY:   That is so, your Honour.  You need leave to cross the threshold.

GAUDRON J:   Now, is that not essentially different from your prerogative writ where the court already has jurisdiction if invoked by the filing of a document or what have you to grant relief of that kind, whereas your jurisdiction here is different; it is conditional.

MR TRACEY:   With respect, no, your Honour.  It depends at which level one looks at it.  If one looks at it at a general level, then this Court has power to issue constitutional writs.  In the present case the Supreme Court has power to entertain, or has jurisdiction to entertain, appeals from the Administrative Appeals Tribunal.

GAUDRON J:   Let us assume that on Thursday or thereabouts, two Justices of this Court sit to hear special leave applications and refuse them and let us say we refuse to give reasons as well, the two of us.  What is to stop the disappointed applicant from then appealing to the Full Court?

MR TRACEY:   Your Honour, the first answer to that is, of course, that what your Honours are engaged in is special leave, which is qualitatively different.

GAUDRON J:   Yes, why?

MR TRACEY:   Because the hurdle is higher.

GAUDRON J:   The hurdle may be higher but that just means you are either doing a long jump or a short jump, as it were.

HAYNE J:   It just feels like a very long jump sometimes, Mr Tracey.

GAUDRON J:   And the nature, I should have thought, was the same.

MR TRACEY:   No, your Honour, because it is of the essence of special leave to appeal that your Honours might take the view that there was error below but that you are not going to grant leave.  If that is applied to section 148 leave applications, the applicant must win because all the applicant has to do to get leave is persuade the court that there is a prima facie case that there was error of law in the Tribunal.

GAUDRON J:   Where does that appear?  Well, that may be the basis on which the question whether or not leave should be granted is to be decided, but are we still not talking about the nature of the exercise upon which people are embarked when leave or special leave is sought?

MR TRACEY:   Well, again, with respect, no, your Honour, because you are not embarking on judicial review proceedings.  If your Honours grant leave, or grant special leave, then there is a full appeal to this Court from an intermediate Court of Appeal that has dealt with the matter fully on the merits; has given its reasons; the applicant knows why he, she, or it, is lost, before the intermediate Court of Appeal, before the trial judge, following a full appeal.  The present is not that sort of case because what is being denied is access to the Supreme Court at the very outset.

KIRBY J:   And, it is said, denied without reasons, finally, no further consideration in the Australian judicial system.

MR TRACEY:   Exactly, your Honour.  Now, we submit that that is qualitatively very different from the refusal of special leave by this Court.

GUMMOW J:   Now, do you get anything in your favour out of the reasoning of Lord Hoffmann in Kemper?

MR TRACEY:   Yes, your Honour.  The relevant passage that we would rely on particularly is at page 14, between letters G and H, where his Honour says:

In principle, however, judicial review is quite different from an appeal.  It is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process ‑ ‑ ‑

GUMMOW J:   He is saying that in the context of the old English Order 56, was it, Order 53?

MR TRACEY:   Yes, your Honour.

GUMMOW J:   The O’Reilly v Mackman situation.

MR TRACEY:   But what he is making a point of doing is distinguishing the position in Lane v Esdaile, which was an appeal from a court to a court.

GUMMOW J:   Yes.  I am just wondering what the position was in the Mackman situation.  What did they do in England when leave to have commenced administrative review was refused by a single judge?

MR TRACEY:   Your Honour, so far as I am aware, the position in England at that time was that you had to get, as it were, an order nisi or the equivalent of an order nisi to proceed to obtain orders in the nature of certiorari, mandamus or prohibition.

GUMMOW J:   They got rid of all of that.

MR TRACEY:   Orders in the nature of, your Honour, not the prerogative writs.

GUMMOW J:   Yes.  I thought you always needed leave under the new system.

MR TRACEY:   Under the new system you still needed leave, as I understand it.

GUMMOW J:   What I want to know is what happens if you did not get the leave.  Do we know what the answer was to that?

MR TRACEY:   Your Honour, I think the answer was that if you did not get the leave you could seek to appeal against it.

GAUDRON J:   What Lord Hoffmann says is “It is by no means obvious that a refusal of leave to challenge its legality should be final” and then he says that:

The law reports reveal a number of important points of administrative law which have been decided by the Court of Appeal or House of Lords in cases in which leave was refused at first instance. 

MR TRACEY:   Is your Honour looking at the top of 14.

GAUDRON J:   No, the top of 15.  It seems to be in your favour.

MR TRACEY:   Yes.

KIRBY J:   And at 19 he says:

Nevertheless, the limited nature of the ratio decidendi of Lane v Esdaile as explained by the Court of Appeal in the Stevenson –

and then he refers again to the distinction between “judicial review” and appeal.  Now, what was the way in which they explained in this case, which I notice is a Privy Council and not a House of Lords case, was the limited nature of the ratio decidendi in Lane v Esdaile, not that we are bound by it, but it seems to have sourced a lot of the reasoning in Australian courts.

MR TRACEY:   The limitation, your Honour, was the distinction between the appeal that was involved in Lane v Esdaile being an appeal proper and judicial review, which was what was being sought in Kemper.

KIRBY J:   And what was the emerging principle?

MR TRACEY:   The emerging principle was that whatever may be said in relation to appeals proper, it could not be said of an application for leave to obtain judicial review that the nature of the application was such as inherently to contain a negative against a further appeal.

GUMMOW J:   Lord Hoffmann also refers to applications for leave to serve outside the jurisdiction.  They have always been appealable.

MR TRACEY:   Yes.

GUMMOW J:   But what did the Court of Appeal in Victoria in Rabel say about Kemper?

MR TRACEY:   Very little, your Honour.  They acknowledged it.

GUMMOW J:   At page 52.  Yes.  They said it was a different issue, though.

MR TRACEY:   Yes. Your Honour will see it referred to at (1999) 3 VR 52 in paragraph 21 and they said that Kemper involved:

a different issue, namely whether a litigant had a right to appeal to the Bermuda Court of Appeal against a refusal of leave to that litigant to apply for an order for certiorari to quash certain consents given by the Minister of Finance.  The appellant had argued before the Privy Council that it should apply to these circumstances the same principles as have been applied by the courts in rejecting, as incompetent, appeals brought against refusals to grant leave to appeal.

GUMMOW J:   Yes, I know, but why was not Rabel itself a case of the species that Lord Hoffmann was talking about in Kemper?  It was an administrative law case.

MR TRACEY:   Yes, your Honour.  We do not understand the basis upon which Kemper was held to be distinguishable.  To the extent that one can determine it from paragraph 21, there is the bald assertion that it is different.

GUMMOW J:   That is why you got special leave.  What the end result will be I do not know at the moment.

MR TRACEY:   Yes.  It is by no means obvious, your Honour.

GAUDRON J:   Well, you do have to, do you not, put it in a historical setting to some extent.  You say, “Well, once upon a time there were these archaic procedures to correct administrative error, albeit jurisdictional error”.  We have moved on for that, at least to error of law.  So important was that to the jurisdiction of the proper functioning of government that even a privative clause was construed strictly because it was thought that the courts ought not to be deprived of that jurisdiction.  You now get to this.  What a court is doing is effectively depriving itself of jurisdiction and a court ought not to be able to do that without its decision in that regard being reviewed.

MR TRACEY:   Yes, your Honour.

GAUDRON J:   Something like that, anyway.

MR TRACEY:   Yes, your Honour.

HAYNE J:   And their Honours in Rabel expressly left aside any argument founded on the ambit of the word “determination”, see paragraph 12 page 49.

MR TRACEY:   Yes, they did, your Honour, and they were prepared to accept that 17(2) would provide the right of appeal unless one could find in section 148 the contrary intention of the legislature.

GUMMOW J:   What comes out of Bland v Chief Supplementary Benefit Officer, if anything?

MR TRACEY:   Your Honour, Bland is against us because what Bland does is apply the Lane v Esdaile principle in an administrative law context.

HAYNE J:   You will refer to this Lane v Esdaile principle and I am still uncertain about what you say the Lane v Esdaile principle is.

MR TRACEY:   Your Honour, the Lane v Esdaile principle, as we understand it, is a principle that says where a court is given the power to grant or refuse leave to appeal, that ‑ ‑ ‑

GUMMOW J:   Leave to appeal in a judicial, curial proceeding involving the exercise of judicial power within that court, perhaps within another court.

MR TRACEY:   Yes, your Honour.  That is as it was originally expressed but it has been extended in some cases like Bland more widely.

GUMMOW J:   We had better be supplied with Bland.  I do not think we have been at the moment.

MR TRACEY:   Your Honour, we will arrange for that to happen overnight.

GUMMOW J:   All right.

CALLINAN J:   Mr Tracey, does section 17 come originally from the Judicature Act?

MR TRACEY:   Your Honour, I am sure it does have its provenance there but I cannot tell you that the wording is identical.

HAYNE J:   Particularly this use of the word “determination”.

GUMMOW J:   Yes.

CALLINAN J:   Yes, that is why I would be interested to know what the original provision in the Judicature Act was - because I think that is its source - and what changes it has gone through.

KIRBY J:   Could I invite you – I know it is not always easy when you do not have your own library but I have in mind that there was a line of authority in the New South Wales Court of Appeal that certain decisions, I think of the District Court, were not appealable because of the formula that had been used.  I think one of the cases was Coal Cliff Collieries v Sijehama and it picked up what has been a pretty steady line of decision in the Court of Appeal of New South Wales concerning certain interlocutory matters not falling within the statutory formula that attracts the right to move the court for leave to appeal.  There were divisions in the New South Wales Court of Appeal.  I think one of the cases was a case of Burchett, an interlocutory decision in a defamation case but if you pick up the Coal Cliff Case it could be a line of authority that is on point at this distinction between determination and order.

MR TRACEY:   Yes, we will look for that overnight.

GAUDRON J:   Yes, we might adjourn then until 10.15 tomorrow morning.  Thank you, Mr Tracey.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 4 APRIL 2001