Santos v Chaffey & Anor
[2007] HCATrans 49
•9 February 2007
[2007] HCATrans 049
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D8 of 2006
B e t w e e n -
SANTOS LIMITED
Applicant
and
CAMERON OWEN CHAFFEY
First Respondent
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
Second Respondent
Office of the Registry
Darwin No D9 of 2006
B e t w e e n -
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY
Applicant
and
CAMERON OWEN CHAFFEY
First Respondent
SANTOS LIMITED
Second Respondent
Applications for special leave to appeal
KIRBY J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 9 FEBRUARY 2007, AT 9.34 AM
Copyright in the High Court of Australia
__________________
MR S.J. GAGELER, SC: If the Court pleases, I appear with MR P.M. BARR, QC for Santos Limited, the applicant in No D8 and the second respondent in No D9. (instructed by Hunt & Hunt)
MR T.I.PAULING, SC, Solicitor‑General for the Northern Territory: May it please the Court, I appear with MS S.L. BROWNHILL in both matters, D8 and D9. (instructed by the Solicitor for the Northern Territory)
KIRBY J: Yes, thank you, Solicitor. Is it convenient to take these matters together, as far as you are concerned?
MR PAULING: Yes, it is, your Honour.
KIRBY J: Yes.
MR M.P. GRANT, QC: If it please the Court, I appear with MR N. CHRISTRUP for the first respondent in both matters. (instructed by Ward Keller)
CALLINAN J: Some nine years ago, at the time of my appointment, I was a director of Santos but I understand the parties have been informed about that.
MR GRANT: Yes, we have no application in relation to that, your Honour.
KIRBY J: Mr Gageler, we thought we might be assisted by hearing from Mr Grant first.
MR GAGELER: If your Honour pleases.
MR GRANT: Your Honours, we rely on the summaries of argument that are filed in each matter. We would make a few brief submissions in addition to those summaries of argument. The applicants suggest in support of the application that the majority in the Full Court reached the conclusion that the right or property in this case was not inherently defeasible on the basis that it was reflective of a common law right. Your Honours, we say that is not the case. The decision was based on what the Full Court found to be the stable and established nature of the right, as was apparent from the governing statutory regime.
Your Honours, what the Full Court relied on in making that finding was that the right was enforceable and non‑payment was attended, of course, by civil and criminal penalties, that it was assignable, that it vested in the estate upon the death of the worker and that it arose from the recognised legal relationship of employer and employee.
KIRBY J: But it derived from the statute and the merest acquaintance with compensation statutes teaches that they are changed from time to time, indeed regularly, partly as a result of inflation and partly as a result of other factors, including court decisions.
MR GRANT: That is so, your Honour, and we do not quibble with the proposition that the legislature can make such amendments prospectively.
CALLINAN J: To take the system of – I do not know whether this is so but is it not correct that, for example, in the Australian Capital Territory and probably also in the Northern Territory that all land titles are creatures of statute?
MR GRANT: That is so in the Territory, your Honour.
CALLINAN J: The test cannot simply be whether something is created by statute or not because surely if there is an acquisition of any interest in land in the Territories that would involve an acquisition.
MR GRANT: Yes, it is an acquisition, your Honour.
CALLINAN J: The test cannot simply be whether something is a matter of – whether it is a creature of statute or not, can it?
MR GRANT: No, it is not, your Honour, and in fact that is precisely what this Court found in both Newcrest and WMC Resources.
CALLINAN J: Really, it is something that follows from ANL v Smith, too, is it not?
MR GRANT: Yes, your Honour, and the task that confronts the Court and confronted the Full Court was to analyse the nature of the right to determine whether it was inherently defeasible or subject to ‑ ‑ ‑
CALLINAN J: If you take a case like Peverill, it is not entirely satisfactory in lots of ways.
MR GRANT: Yes, your Honour.
CALLINAN J: I suppose all of this just suggests it is a fit matter for special leave.
KIRBY J: His Honour has thrown out some lifelines and then suddenly he tugged them back.
MR GRANT: Yes.
CALLINAN J: But perhaps not for the – this is only the curtain‑raiser, of course, not for the main event.
MR GRANT: Yes. Your Honour, we say that there is nothing in Peverill that cuts across the determination of the Full Court.
CALLINAN J: I am not too happy with aspects of Peverill, that is what I am suggesting.
MR GRANT: No. Your Honour, it raises the principle, of course, whether a statutory right should be accorded any less importance than a common law right.
KIRBY J: It is the fact that it is statutory and inherently defeasible. It is not just that it is statutory but that of its character and purpose it is altered regularly and from time to time and that that means that it is not the kind of property that attracts the just terms requirement.
MR GRANT: Yes, that was certainly the case with the property in Peverill, your Honour, and the fact that it was welfare in nature, a gratuitous payment from consolidated revenue ‑ ‑ ‑
CALLINAN J: It is all a matter of….., with respect to his Honour that is completely correct what has just been put, but it is not really a very satisfactory distinction.
KIRBY J: This is a point that is made in the latest edition of Blackshield and Williams where the authors criticise the recent authorities of the Court and say that there is no clear discrimen between the cases, so it may be that you have wandered into an important case. I notice that at page 105 of the application book there is a proper agreement about costs that protects you and your client.
MR GRANT: Yes. Your Honour, that is the special order for costs that we seek.
KIRBY J: Do you understand that to be agreed or has that not been extracted yet, like a tooth from Mr Gageler, and even more from the Solicitor?
MR GRANT: If your Honour goes to ‑ ‑ ‑
KIRBY J: Very mean in these things.
MR GRANT: ‑ ‑ ‑ appeal book 96, at paragraph 42 you will see that in the Attorney-General’s application the Attorney says that he:
would not resist a direction pay the First Respondent’s costs in relation to this application and the appeal -
There is no such indication from the applicant in the Santos application.
KIRBY J: Yes. We will ask them about that. I mean, if they want to bring up a case as a test case with significance from other cases and it raises
an important constitutional question, it is a bit hard to have an ordinary citizen on the receiving end of costs orders.
MR GRANT: Yes, your Honour. There is one further matter in that context and that is that orders in those terms would provide some comfort or protection to the first respondent in these matters, but of course there is the issue of the cost orders below which, at this stage, are in favour of the first respondent and that is a matter that would also need attention if the respondent was to be entirely protected in relation to any application.
KIRBY J: So your submission is that if contrary to your argument the Court were minded to grant special leave, it ought to be on the basis of an undertaking shared by the applicants that they would not seek to disturb the costs orders below and that they would pay your costs in this Court in any event?
MR GRANT: Precisely so, your Honour.
KIRBY J: Yes.
CALLINAN J: Getting back to the issue itself, in Tasmanian Dam Case the position taken by Justice Mason on the acquisition point that the acquirer has to get something out of it, get some property out of it of some kind, of some proprietary right – the acquirer always does and it is just a question of characterisation of it. What the acquirer got in the Tasmanian Case was a massive restrictive covenant. I do not really understand why that was not picked up. In any event, that is just by the by.
MR GRANT: Yes, your Honour.
KIRBY J: Yes. Is there anything else you wish to say in addition to what you have already said orally and what you have said in your written submissions?
MR GRANT: Nothing further. Thank you your Honours.
KIRBY J: Yes. Thank you very much for you help, Mr Grant. Well, now, Mr Gageler, you heard what we said about the costs. We are minded to grant special leave in this matter. What do you say about the terms as to costs?
MR GAGELER: Your Honour, if I had got to go first I was going to volunteer a condition as to costs.
KIRBY J: Yes. I am sorry I did not call on you because it is always such a pleasure but we thought we would save you the time, and ourselves.
MR PAULING: Your Honours, in our written submissions on two occasions we said we would not resist an order that we would make the costs ‑ ‑ ‑
KIRBY J: It is not quite the same, is it?
MR PAULING: No, it is not, but I can tell your Honours directly that we would consent to an order that we meet the costs of this application on the appeal and not disturb the orders for costs already made below.
KIRBY J: Yes, and no doubt some arrangement would be made between the appellants on that score.
MR PAULING: Yes, if necessary.
KIRBY J: Yes. On the basis that the applicants will not seek to disturb the costs orders in favour of the first respondent, Mr Chaffey, and that they will pay Mr Chaffey’s costs in this Court, whatever the outcome of the appeal, the Court grants special leave to appeal in these applications. The matter would be a one‑day case, would it not? What do you feel about that, Mr Gageler?
MR GAGELER: Yes, a one‑day case.
KIRBY J: It is likely that the States would want to intervene in this case?
MR GAGELER: I think it highly unlikely, your Honours.
KIRBY J: Do you have to give notice under the Judiciary Act in a case where it is the Northern Territory?
MR GAGELER: Yes, because it is still a matter involving the interpretation of section 51(xxxi) of the Constitution.
KIRBY J: I suppose it is, yes.
CALLINAN J: They have all got acquisition statutes, of course, acquisition of land statutes.
MR GAGELER: And of course they are all protected by section 51(xxxi). They may well have an interest in turning up. Which side of the record they would want to be on is another matter.
CALLINAN J: Yes, quite.
KIRBY J: It is not a rule of the Court that matters raising constitutional questions have to be heard by the Full Court and where what is involved is the application of principles that have been laid down by the Full Court, constitutional cases are, from time to time, dealt with by a court of five Justices. What would be your submission?
MR GAGELER: It may be relevant to know whether there is any application on the part of any party to reopen the existing authority of the Court, particularly given the discussion that has occurred in the course of the special leave application. If there were to be no challenge to Peverill, Nintendo, WMC Resources and a number of other cases ‑ ‑ ‑
KIRBY J: And all of them read together.
MR GAGELER: ‑ ‑ ‑ and all of them really, we can have a court of five. If there is to be a challenge to some or all of those cases then I think we would really need to look at the whole Court sitting.
KIRBY J: Yes. Do you agree with that submission, Mr Solicitor?
MR PAULING: Yes, I do, your Honour.
CALLINAN J: It is the language of the Constitution so, as you pointed out ‑ ‑ ‑
MR PAULING: The Northern Territory (Self‑Government) Act in terms picks up section 51(xxxi).
CALLINAN J: So the States might well have an interest.
MR PAULING: Yes.
KIRBY J: The Court will take into consideration the matter that you last mentioned concerning the constitution of the Court and the matter will be set down for one day on a date to be notified.
AT 9.47 AM THE MATTERS WERE CONCLUDED
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