Rutledge v State of Victoria and Anor

[2013] HCATrans 294

[2013] HCATrans 294

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M60 of 2013

B e t w e e n -

PAUL JOHN RUTLEDGE

Plaintiff

and

STATE OF VICTORIA

First Defendant

GREATER BENDIGO CITY COUNCIL

Second Defendant

Summonses

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 21 NOVEMBER 2013, AT 9.30 AM

Copyright in the High Court of Australia

MR M.C. O’CONNOR:   If your Honour pleases, I appear on behalf of the respondent plaintiff.  (instructed by Lanham Lawyers)

MS K.E. FOLEY:   If your Honour pleases, I appear for the State of Victoria, the first defendant in the proceeding and the applicant in this matter.  (instructed by Victorian Government Solicitor)

MR R.J. SADLER:   If your Honour pleases, I appear on behalf of the second defendant.  (instructed by Beck Legal)

HIS HONOUR:   Now, we have, do we not, two applications – an application by each defendant?

MS FOLEY:   That is correct, your Honour.

HIS HONOUR:   Is there any reason not to hear them together, Mr O’Connor?

MR O’CONNOR:   No, your Honour.

HIS HONOUR:   Very well.  Ms Foley, your application is by summons of 26 September.  Is that right?

MS FOLEY:   That is right, your Honour.

HIS HONOUR:   And supported by the affidavit of Ms O’Brien, firstly.  Is there any objection to my receiving the affidavit of Ms O’Brien, Mr O’Connor?

MR O’CONNOR:   No, your Honour.

HIS HONOUR:   Yes, that may be received.  There is also, I think, the further affidavit, is there, of Mr Ciolek?

MS FOLEY:   That is correct, your Honour, affirmed on 12 September 2013.

HIS HONOUR:   Again, is there any objection to my receiving that?

MR O’CONNOR:   No, your Honour.

HIS HONOUR:   Very well.  Now, is that the whole of the material on which you move, Ms Foley?

MS FOLEY:   It is, your Honour.

HIS HONOUR:   Yes.  Can I just follow the same path with you, Mr Sadler, just to make sure that we know what we are working with?  Your summons is the summons of 18 October.  Is that right?

MR SADLER:   That is correct, your Honour.

HIS HONOUR:   There is an affidavit of M.J. Barkla filed in support of that, I think, is there not?

MR SADLER:   Yes, sir.  It was sworn on 17 October.

HIS HONOUR:   Yes.  Is there any objection to my receiving that, Mr O’Connor?

MR O’CONNOR:   No, your Honour.

HIS HONOUR:   Yes.  Then in answer, I think, to both summonses, there are the affidavits of Ms Stringer and Mr Rutledge.  Do the defendants have any objection to my receiving those affidavits?

MS FOLEY:   No, your Honour.

MR SADLER:   No, your Honour.

HIS HONOUR:   Very well then.  Ms Foley, I have attempted to familiarise myself generally with the matter.  I have read the outline of submissions which you filed on 18 November.  It would, I think, in the first instance be convenient if we could focus principally upon the issue about Royal Assent, leaving aside for consideration if needs be any question of preclusion.  I would understand from your submissions you to be saying that there are two separate paths to the conclusion that the defendant demonstrates that the 1975 Constitution Act was assented to and enacted validly.  First, you point to the proclamation.  Where do I most conveniently find the proclamation upon which you rely, or evidence of the proclamation?

MS FOLEY:   Your Honour, the proclamation is exhibit AOB‑13 to the O’Brien affidavit.

HIS HONOUR:   Sorry, AOB‑13?

MS FOLEY:   That is right.

HIS HONOUR:   One moment.  I am not exactly short of paper in this matter, as you may have noticed, Ms Foley.

MS FOLEY:   I have, your Honour.

HIS HONOUR:   Yes, I have AOB‑13, which is an extract from the Victoria Gazette of 19 November 1975 at page 3819.  Is that right?

MS FOLEY:   That is correct.

HIS HONOUR:   Yes.  So the proclamation plus section 6 of Colonial Laws Validity Act you say is one path home.  Do I understand you to also say that as a second path home Mr Ciolek’s affidavit identifying the Order in Council – do I have that?

MS FOLEY:   The Order in Council, your Honour, is also an exhibit to the O’Brien affidavit ‑ ‑ ‑

HIS HONOUR:   I see.

MS FOLEY:   ‑ ‑ ‑ and that is AOB‑12, and that came via the Keeper of the Public Records in the State of Victoria.

HIS HONOUR:   What significance does that provenance have for my purposes?  The fact that it comes from Keeper of Public Records entails what consequence, if any, relevant to this matter?

MS FOLEY:   Your Honour might see that on the cover page of the exhibit is a certificate under the Public Records Act 1973 which is a certification that the copy attached is a true copy of the record so cited. It is simply the best way that we have been able to engage proof of the Order in Council being a public document. I do not see that the plaintiff has quarrelled with what is contained in the Order in Council. It is rather a question arising from their written submissions as to whether or not there was a need for the Order in Council to contain the royal sign manual.

HIS HONOUR:   Yes.

MS FOLEY:   Your Honour, I might mention that the case that the plaintiff has sought to advance in the written submissions and the affidavit material, which obviously we received after having prepared our written submissions, does defer somewhat from the pleaded case and what I was proposing to do, if it would be helpful to your Honour, was not address the issues I have already canvassed in the written submissions, but to address squarely the point raised by the plaintiff in his written submissions.

HIS HONOUR:   This is the question about whether assent has to be signified by a royal sign manual?

MS FOLEY:   Indeed.

HIS HONOUR:   Well, you refer in the materials you sent to me, which I understood to have been supplied to the other party, to Sir Henry Jenkyns’ work, British Rule and Jurisdiction Beyond the Seas where, particularly at page 78 of that work, there is reference to assent being signified by Order in Council.  To that might be added Todd’s Parliamentary Government in the British Colonies, 2nd edition (1894) where Alpheus Todd discusses the general question of imperial dominion exercisable over self‑governing colonies in matters of local legislation and, at pages 170 to 172, that author records that questions – at 172, the author says:

In conformity with ancient usage, the assent of the Crown to colonial acts, or its disallowance of the same, is signified by the approval by her Majesty in council of reports advising the course to be pursued in particular cases.

To that might be added the more fundamental observation that the area of discourse in which this arises is imperial control over colonial legislation.  Reservation of a Bill for signification of Royal Assent required the colony to reserve the Bill for signification of Royal Assent according to the advice tendered to the Crown, not by the Crown’s colonial ministers, but by the Crown’s imperial ministers – that is to say, the ministry in Westminster or in Whitehall.  How else is signification of Royal Assent to be given when the assent is given or withheld according to the advice of the Crown’s imperial ministers, save by Order in Council?

MS FOLEY:   Indeed, your Honour, and that point was also emphasised in this Court’s decision in Yougarla v Western Australia.  In particular, if I could just make reference to the joint reasons at paragraph 13, where the Jenkyns extract that has just been raised was quoted, and what is made clear is that the phrase “reservation . . . for the signification of Her Majesty’s pleasure” means that the Bill so reserved “has no force until assented to” by the sovereign him or herself.  So in the State’s submission ‑ ‑ ‑

HIS HONOUR:   Well, it is important to go on in the quotation:

ie by (in effect though not in form) the Home Government . . . the Crown [acting] on the advice of the home ministers, who are responsible to the imperial Parliament.”

MS FOLEY:   Indeed, which was exactly your Honour’s point about the control exercised by the imperial Parliament.

HIS HONOUR:   Yes.

MS FOLEY:   So in the State’s submission in short, the requirement in section 1(1) of the Australian States Constitution Act meant that the Governor needed to reserve the Bill and then that the Bill had no force until Her Majesty assented to it, and both of those matters have been established on the evidence and on the basis of the plaintiff’s submissions the State does not see that there is any quarrel with the fact that it was reserved or that it was assented to.  Rather, the plaintiff is in a way seeking to import an additional manner and form requirement which is that the royal sign manual needed to be applied to the Order in Council.  We say that is incorrect.

HIS HONOUR:   Yes.  Now, does that capture sufficiently the essence of the first point?

MS FOLEY:   It does, your Honour.

HIS HONOUR:   Yes, thank you, Ms Foley.  Mr Sadler, I think that the path followed in your submissions may differ in some respects from the path just outlined, but is there any further point that you would seek to make in addition to those that have presently emerged if, for present purposes, we leave aside this question of preclusion on account of the Supreme Court proceedings?

MR SADLER:   No, your Honour.  They are in substance the same.  We adopt the submissions made both in writing and this morning by the State’s counsel to the Court, and we simply say that section 1(1) of the Australian States Constitution Act means what it says.  If your Honour please.

HIS HONOUR:   Yes, thank you, Mr Sadler.  Now, Mr O’Connor, recognising that I have not yet embarked on any question of preclusion on account of what happened in the Supreme Court and the consequences, if any, that should be attached to the making of the consent order, what is it that you would say in answer to the proposition both explicitly made and I think implicitly made by the defendants that on demonstration of Royal Assent to the 1975 Act your case must fail?

MR O’CONNOR:   Yes, your Honour.  I did not receive the Henry Jenkyns extract there ‑ ‑ ‑

HIS HONOUR:   Did you not receive the bundle of authorities?  It is behind tab 8, I think.

MR O’CONNOR:   Yes, yes, I did, sorry.

HIS HONOUR:   I do not think you will have Alpheus Todd before you, but that is the joys of the internet and idle judicial hands, Mr O’Connor.

MR O’CONNOR:   Yes, the internet is a wonderful thing, your Honour.

HIS HONOUR:   Sometimes.

MR O’CONNOR:   Sometimes, yes.  Your Honour, the submissions for the plaintiff are that the Order in Council as it appears refers to Her Majesty declaring her assent to the said Bill.  Your Honour, we maintain the position that there still is required the royal sign manual to be attached to the Order in Council to confirm Her Majesty’s signed assent to the Bill.

HIS HONOUR:   Why so?  Why does Her Majesty have to append her signature under her own hand to demonstrate assent?

MR O’CONNOR:   It is, in my submission, the ancient manner in which a monarch provided a proclaimed proof of assent.  There is no seal attached to the Order in Council.  There is no signature attached to the Order in Council.  Without the signature of Her Majesty the Queen, the assent cannot be demonstrated.

HIS HONOUR:   On the face of it, that seems to be contrary to the propositions advanced by both Jenkyns and Todd, does it not?

MR O’CONNOR:   Yes, your Honour, but it is in accordance with when, from an examination of when Her Majesty provides her assent, there are countless occasions where your Honour will see the Queen provides her sign manual, and that is the accepted manner in which the monarch attaches her signification to the assent of legislation and also commissions and other areas where royal signification is required.  Without the royal sign manual, there is no ability to confirm that Her Majesty has in fact provided her signification to the Bill.

HIS HONOUR:   Do you point to any authority in support of the proposition?

MR O’CONNOR:   No, your Honour.

HIS HONOUR:   Yes.  If the State and the Council were right in their submissions on this aspect of the matter, does it follow that the plaintiff’s case must fail?

MR O’CONNOR:   Indeed, your Honour.

HIS HONOUR:   Yes.  It seemed to me to follow, but it is important that I understand that to be the case.  Is there anything further that you would wish to add in support of this proposition?

MR O’CONNOR:   Only in the context, of course, of an application for summary dismissal, there being no reasonable prospect of successfully arguing the case.  Thank you, your Honour.

HIS HONOUR:   Thank you very much, Mr O’Connor.  I need not trouble you in reply, Ms Foley or Mr Sadler.

The plaintiff, Paul John Rutledge, does not want, and says he is not bound, to pay rates and charges levied by the Greater Bendigo City Council in respect of land which he owned in West Bendigo and in respect of his residence in Woodvale, Victoria.  The plaintiff alleges that the rates and charges levied by the Council and the steps that have been taken to enforce their payment, including the transfer of the West Bendigo land to the Council and its subsequent sale, were and are unlawful.

By writ of summons prepared by a solicitor and issued in this Court on 11 June 2013, the plaintiff alleges that the Constitution Act 1975 (Vic):

is ultra vires and invalid as:

a)There is no evidence that the Constitution Act 1975 (Vic) was signed or assented to by Her Majesty the Queen and section 60 of the Victorian Constitution Act 1855 (Imperial) required that “every bill so passed shall be reserved for the signification of Her Majesty’s Pleasure thereon”.

b)The Westminster Parliament is the only authority that could repeal the Victorian Constitution Act 1855 (Imperial).

c)The Victorian Parliament had the power in 1975 to repeal parts of the Victorian Constitution Act 1855 (Imperial) but not the whole act.

By his writ the plaintiff further alleges that in consequence of the fact that the Constitution Act 1975 (Vic) was not validly enacted, the Victoria Constitution Act 1855 (Imp) remains in force and that the creation of the Greater Bendigo City Council was not properly authorised.  The essential allegation which the plaintiff makes is that the Constitution Act 1975 (Vic) was not validly enacted because it was not assented to by Her Majesty the Queen.

The writ names State of Victoria and Greater Bendigo City Council as defendants.  Each defendant now applies for summary judgment in the action.  Each defendant alleges that the plaintiff’s action is bound to fail because this Court should be satisfied that Royal Assent was properly given to the Constitution Act 1975 (Vic) in accordance with the then applicable requirements of law. Each defendant further alleges that the plaintiff is precluded from pursuing his claim in this Court because he had earlier brought proceedings in the Supreme Court of Victoria seeking substantially the same relief as is now sought in this Court on what are said to be grounds substantially identical to those put forward in the present proceeding.

The defendants point to the fact that the plaintiff consented to orders dismissing the proceedings in the Supreme Court of Victoria and they allege that it follows that the plaintiff is now precluded from pursuing the present proceedings.

As I indicated in the course of argument I do not consider it necessary to examine the validity of the arguments advanced by the defendants about the preclusive effect of the orders which were made by consent in the Supreme Court of Victoria.  Rather, it is convenient to focus only upon the question of Royal Assent to the Constitution Act 1975 (Vic). In his statement of claim the plaintiff refers to section 60 of the Victoria Constitution Act 1855 (Imp) as requiring that “every Bill which shall be so passed” – I interpolate for amendment of the 1855 Constitution – “shall be reserved for the signification of Her Majesty’s pleasure thereon”. The better view may very well be that, as the State submitted, at the times relevant to this matter, the requirement for reservation for signification of the Crown’s pleasure with respect to a Bill for amendment of the Constitution Act 1855 was provided by section 1(1) of the Australian States Constitution Act 1907 (Imp).  Section 1(1) of that Act provided that:

(1)      There shall be reserved, for the signification of His Majesty’s pleasure thereon, every Bill passed by the Legislature of any State forming part of the Commonwealth of Australia which‑

(a)alters the constitution of the Legislature of the State or of either House thereof; or

(b)affects the salary of the Governor of the State; or

(c)is, under any Act of the Legislature of the State passed after the passing of this Act, or under any provision contained in the Bill itself, required to be reserved;

but, save as aforesaid, it shall not be necessary to so reserve any Bill passed by any such Legislature:

Provided that‑

(a)nothing in this Act shall affect the reservation of Bills in accordance with any instructions given to the Governor of the State by His Majesty; and

(b)it shall not be necessary to reserve a Bill for a temporary law which the Governor expressly declares necessary to be assented to forthwith by reason of some public and pressing emergency; and

(c)it shall not be necessary to reserve any Bill if the Governor declares that he withholds His Majesty’s assent, or if he has previously received instructions from His Majesty to assent and does assent accordingly to the Bill.

It may be observed at this point that the provisions of the Australian States Constitution Act 1907 (Imp) were subsequently overtaken by the provisions of section 9 of the Australia Acts 1986 which, so far as presently relevant, provided that:

(2)No law or instrument shall be of any force or effect in so far as it purports to require the reservation of any Bill for an Act of a State for the signification of Her Majesty’s pleasure thereon.

The defendants advance two separate points as complete answers to the plaintiff’s allegation that the Constitution Act 1975 (Vic) was not assented to. First, the defendants point to the proclamation published in the Victoria Gazette of 19 November, 1975 at page 3819.  The proclamation by the Governor of Victoria recorded that the 1975 Constitution Act, which had been reserved pursuant to the provisions of the Australian States Constitution Act 1907 for the signification of Her Majesty’s pleasure thereon had been laid before Her Majesty in Council and that “by an Order in Council bearing date the twenty‑second day of October, 1975, Her Majesty has been pleased to assent to the same”.  By operation of section 6 of the Colonial Laws Validity Act 1865 (Imp):

any Proclamation purporting to be published by Authority of the Governor in any Newspaper in the Colony to which such Law or Bill shall relate, and signifying . . . Her Majesty’s Assent to any such reserved Bill as aforesaid, shall be prima facie Evidence of such . . . Assent.

Second, and separately, there has been produced in evidence from the public records of the State a copy of a public record being an Order in Council dated 22 October 1975 recording as follows:

Whereas the Governor of Victoria (being one of the States constituting the Commonwealth of Australia) did, on the 20th day of May 1975, reserve for the signification of Her Majesty’s pleasure a Bill passed by the Legislature of the said State, which provides that it may be cited as the “Constitution Act 1975”.

And whereas the said Bill, so reserved as aforesaid, has been laid before Her Majesty in Council, and it is expedient that it should be assented to by Her Majesty:

Now, therefore, Her Majesty doth by this present Order, by and with the advice of Her Privy Council, declare Her Assent to the said Bill.

The plaintiff points out, correctly, that neither the Order in Council nor any other document produced in evidence in this Court records the signification of Royal Assent for the Bill for the Constitution Act 1975 (Vic) by execution under the sign manual. But, on any view, it seems to me that the signification of Her Majesty’s assent to the Bill is constituted by the Order in Council. As I said in the course of argument, understanding the content that is to be given to reservation of a Bill by what was once a colonial legislature for the signification of Her Majesty’s pleasure on the Bill must be understood to require reservation of the Bill for the signification of Her Majesty’s pleasure in respect of that Bill when Her Majesty acts on the advice of her imperial, as distinct from colonial, ministers. Once it is understood, as it must be, that the Crown is, in this respect, acting on the advice of its imperial, as distinct from its colonial, ministers, it is evident that the practice, long established, of signification of Royal Assent by Order in Council constitutes satisfaction of the requirements of section 1(1) of the Australian States Constitution Act 1907.  If authority for that proposition is necessary, it is to be found in the work of Sir Henry Jenkyns, to which counsel for the State referred – British Rule and Jurisdiction Beyond the Seas, (1902) at 78 – and in Alpheus Todd’s work on Parliamentary Government in the British Colonies, 2nd ed (1894) at 170 to 172.

There is, in my opinion, no substance in the plaintiff’s submission that Royal Assent to a Bill reserved in accordance with the Australian States Constitution Act can be signified only under the royal sign manual. 

On either of the bases relied on by the defendants, it is demonstrated that the Bill for the 1975 Victorian Constitution was assented to in accordance with law. 

It follows that the plaintiff must fail in this action.  It is not necessary to consider whether, if the 1975 Act had not been validly enacted, any of the more particular consequences alleged by the plaintiff in this case would have followed.  Nor is it necessary to consider the questions of preclusion to which I have earlier referred.  The central point which the plaintiff must make good to establish his claim is a point on which he must fail. 

No question emerges in this case requiring examination of the degree of satisfaction that must be attained before entering summary judgment for the plaintiff.  This is a case in which it is plain that the plaintiff must fail. 

There should be judgment for each defendant in the action.  That judgment should be with costs.

Adjourn the Court.

AT 10.10 AM THE MATTER WAS CONCLUDED