Scott v Northern Territory

[2003] HCATrans 405

[2003] HCATrans 405

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D8 of 2003

B e t w e e n -

LETTY MARIE SCOTT

Applicant

and

NORTHERN TERRITORY OF AUSTRALIA

Respondent

Office of the Registry
  Darwin  No D9 of 2003

B e t w e e n -

LETTY MARIE SCOTT on her own behalf and on behalf of her minor child NATHAN WILLIAM SCOTT and on behalf of DIANA LEE CAVANAGH and on behalf of MICHELLE ANNE MOSELEY

Applicant

and

NORTHERN TERRITORY OF AUSTRALIA

Respondent

Applications for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 OCTOBER 2003, AT 2.57 PM

Copyright in the High Court of Australia

__________________

MR M.P. GRANT:   Your Honour, I appear for the respondent, the Northern Territory of Australia, in those matters.  (instructed by the Solicitor for the Northern Territory)

MRS L.M. SCOTT appeared in person.

KIRBY J:   This one is one you are just bringing on your own behalf.  It is not brought on behalf of anyone else, I think, is it?

MRS SCOTT:   No, it is on behalf of Nathan and Michelle and Diana.

KIRBY J:   Yes, that is right.  Justice Heydon reminds me that D8 is on your own behalf and D9 is on behalf of Nathan William Scott, Diana Lee Cavanagh and on behalf of Michelle Anne Moseley.  That is correct, is it not?

MRS SCOTT:   That is correct.

KIRBY J:   Your son who addressed the Court, is that Nathan Scott?

MRS SCOTT:   Yes, that is correct, your Honour.

KIRBY J:   Very well, and he is present in Court today.

MRS SCOTT:   Yes, and my daughters are here.

KIRBY J:   Right, very well.  Now, have you decided with Nathan and your daughter how you are going to split up the oral submissions to the Court?

MRS SCOTT:   Yes.  I would like Daniel to help us to give ‑ ‑ ‑

KIRBY J:   Yes, well, of course he may and, as in the last proceeding, you just split it up between you.

MRS SCOTT:   Thank you.

KIRBY J:   Very well.  What do you say in this case?  This is a saga of delays, I am afraid.

MR TAYLOR:   Your Honours ‑ ‑ ‑

KIRBY J:   Mr Taylor, you are going to address the Court for Mrs Scott?

MR TAYLOR:   …..

KIRBY J:   Very well, then come to the microphone so it can be recorded.

MR TAYLOR:   The first thing that we want to put up, your Honours, is a notice of motion which relates to the fact that this is in a matter in the original jurisdiction of this High Court and therefore Mrs Scott seeks summary jurisdiction, seeks a summary judgment and to admit further evidence in this proceeding.

KIRBY J:   This is the case where special leave is being sought from the orders of Justice Martin, it that not correct?

MR TAYLOR:   That is correct, your Honour.

KIRBY J:   How can that be in the ‑ ‑ ‑

MR TAYLOR:   It is not a section 73 appellate - the Northern Territory Supreme Court is not a section 73 appellate court.

KIRBY J:   That is a big question.  That has been the subject of determination.

MR TAYLOR:   I have it from the High Court ‑ ‑ ‑

KIRBY J:   I think that was considered in Eastman, was it not; Eastman v The Queen?

MR TAYLOR:   Your Honour, it does not fit within the words of section 73.

KIRBY J:   I think this is a constitutional question.

MR TAYLOR:   Of course it is.

KIRBY J:   You would have to give a section 78B notice if you wish to proceed with this matter.

MR TAYLOR:   We certainly do wish to proceed.

KIRBY J:   Have you given notice under the Judiciary Act?

MR TAYLOR:   No, I have not, your Honour; it is something which has only just arisen in our understanding - last night in fact, at about 3 am.  So I apologise, but I gave Michael Grant notice as soon as we could.

KIRBY J:   Well, unfortunately, the Judiciary Act is peremptory in this regard.  It says that where a constitutional question is raised, the Court shall not proceed further with it, but must require that notices be given to the law officers of the Commonwealth.  It is quite peremptory.

HEYDON J:   You are saying that your own application for special leave to appeal is incompetent?

MR TAYLOR:   No, no, of course not; we are saying that the application for special leave is quite competent even without this, but we are happy to proceed with everything else and then to put that at the end.

KIRBY J:   Would that not be the best course?  You deal with the special leave application.  As Justice Heydon points out, even if you are right about the constitutional question, it would not really avail you very much.

MR TAYLOR:   No.  On 22 July, your Honours – I mean, Mrs Scott’s application into the Supreme Court was dismissed in No 118 of 1992 on 22 September 1999 by Justice Martin.  Mrs Scott was in London on a phone hook-up, and Justice Martin took no account of the affidavit of Rodney Selwyn Lewis of 25 September 1998 ‑ ‑ ‑

KIRBY J:   Why was there not an application for leave to appeal or an appeal to the Court of Appeal?

MR TAYLOR:   Mrs Scott was obtaining at the time forensic specialists and when she obtained those specialists she sought to have the matter - Douglas’s body exhumed in Townsville, Queensland and she spent quite some time arranging for that.

KIRBY J:   But I am talking about after Justice Martin’s orders there was then about a three year delay.

MR TAYLOR:   There is also the fact that the law as stated by Justice Martin, seemed to be quite fixed; that is Lackersteen v Jones, and it was only when Justice Madgwick advised Mrs Scott in paragraph 64 of his judgment that actually she can have an action for murder and that Justice Martin is in fact wrong that Mrs Scott immediately appealed to this High Court.  In fact, Justice Madgwick said that Mrs Scott has to pursue the action in the Northern Territory and further advised her that she should amend her application up there, the remaining application which was the compensation to relatives, fatal injuries action, which is ‑ ‑ ‑

KIRBY J:   There was an inquest originally, was there not?

MR TAYLOR:   There was an inquest, your Honours, but witnesses were not brought and neither did the prison officers attend; they told the coronial that they would not attend.  It took some two years ‑ ‑ ‑

KIRBY J:   The matter was investigated by the Royal Commissioner, I think.

MR TAYLOR:   The Royal Commission did not bring the witnesses either, your Honour.  They alleged that they took notes of what people told them over the phone or in conversations or certain things and evidence of murder was given to one the Royal Commission staff, namely Geoffrey Barbaro, and this was not brought to the Royal Commission, so there was not a genuine bona fides enquiry.  This evidence was kept from Mrs Scott.  The witness was an illiterate Aboriginal man, who was flown all the way from Kununurra in Western Australia or taken to Darwin during the Royal Commission and taken to a secret room and had a false statement placed in front of him and told to sign it and he was not brought before the Royal Commission.

KIRBY J:   You can move, at least in New South Wales, for the reopening of an inquest.  I have sat in the Court of Appeal in such matters.

MR TAYLOR:   There has been a recent change to the law in the Northern Territory and Mrs Scott has taken advantage of that recent change to the law under section 44A of ‑ ‑ ‑

KIRBY J:   That can be done in the Northern Territory, can it?

MR TAYLOR:   Yes.

KIRBY J:   So that if Mrs Scott has some fresh evidence or material that would give a foundation for that, that would seem to be the appropriate course.

MR TAYLOR:   That is one way, your Honour, but Mrs Scott has an entitlement to bring her action where life and liberty are the essence of the controversy.

KIRBY J:   She has the entitlement but, unfortunately, the history of it is a sage that has been interrupted by serious delays.

MR TAYLOR:   Your Honour, yes, the serious delay was not on her part; the evidence was concealed from Mrs Scott and when the Royal Commission solicitor, Geoffrey Barbaro, was brought by Mrs Scott to Sydney, paid for, and he came to Sydney and was interviewed by Mrs Scott’s former solicitor, Rodney Selwyn Lewis, he advised Mr Lewis that there was an Aboriginal eyewitness who had given him evidence of murder. Now this is in April 1995. Mrs Scott and Mr Robert…..drove immediately, no delay, immediately, to Western Australia from Sydney, Kununurra, and interviewed this eyewitness on 12 April 1995 and that constitutes the date of discovery for the purposes of section 42 of the Limitation Act (NT) which Mrs Scott claims, as well as – Robert…..is a former police officer, your Honour, who interviewed the eyewitness and he assisted Mrs Scott in her struggle for justice.

That constitutes the date of discovery.  Now, Mrs Scott immediately advised her solicitors to institute an action for murder.  They delayed somewhat and then they actually went over and interviewed the eyewitness themselves and then took an affidavit from the eyewitness on 27 September 1996 and the affidavit of Rodney Selwyn Lewis, which is reproduced at page 38 of the supplementary joint application book volume 2 of 2, details that and Mr Lewis advised in paragraph 7 at page 39 that:

Upon receiving a copy of the witness statement on about 18 October 1996 I formed the view that there were reasonable grounds for pursuing amendments to the Statement of Claim regarding homicide.

Now, of course, the Northern Territory of Australia, the respondent, is a successor under section 4 of the Limitations Act to the prison officers who continue to conceal the murder.  The Master’s decision does not bear scrutiny.  He says that there is an allegation that someone from the Northern Territory is concealing the evidence of murder.  Yes, they murdered Douglas and they are the first people who have concealed it and they are still employed by the respondent and, in fact, the respondent represents them in this Court as well.

Mrs Scott made repeated pressure to her lawyers to institute the action immediately for murder upon her discovery of this evidence of murder and upon the material fact, which is the affidavit of the eyewitness, which was given on 27 September 1996.  However, the lawyers, even though advising Mrs Scott that she should initiate an action for murder, refused to file.  So Mrs Scott made numerous attempts to file.  She faxed the Master of the Court that she was pressuring her lawyers to file and when they continued to fail to file, on 22 July 1997 Mrs Scott swore an affidavit at Alice Springs Supreme Court with the statement of claim for murder, your Honour.  It is reproduced at page 8 and following of the supplementary joint application book, volume 2 of 2.  This was within two years of the discovery of the murder of Douglas Scott and within one year of the ascertainment of the material fact, being the obtaining of the affidavit by her solicitors and the advice that she should pursue an action for murder.

After the discovery of the murder of Douglas Bruce Scott by the first interview with the eyewitness after the Royal Commission, the solicitor informed Mr Lewis that there was an eyewitness who gave him evidence of Douglas’s murder and after Mr Lewis and Mr…..went to Western Australia – that is Mrs Scott’s former solicitor, Rodney Selwyn Lewis - and interviewed the eyewitness and other eyewitnesses, they put a submission to the Prime Minister, John Howard, to open a federal judicial inquiry into the murder of Douglas Bruce Scott and that was placed before Justice Martin as well, your Honour.  That is, I think, in the supplementary application book at volume 1 at page 41 and it includes the words - it was annexure E to the affidavit of Mrs Scott dated 16 June 1998 and it states at paragraph 3, page 41, line 3:

Upon the evidence presented to us including the evidence of persons who were in a position to see and to hear certain things, it would appear that, quite contrary to the evidence and the conclusions of the Royal Commission, there was an involvement on the part of four prison officers on the night in question, which has never been the subject of inquiry or evidence.

And if I may also, your Honours, read from the affidavit of Rodney Selwyn Lewis, which is in the supplementary joint application book, volume 2 of 2, that is the affidavit of Rodney Selwyn Lewis of 25 September 1998.  Mr Lewis says:

In about April 1995 the plaintiff had interviewed a man in a remote part of Western Australia who claimed to have witnessed four men entering the deceased’s cell the night before he was found hanging.  I found the statement taken from the witness to be unsatisfactory and in about March 1996 I agreed to travel to Western Australia to interview the man.

Upon interviewing the witness in Western Australia I found his story substantially similar to the statement he had given in April 1995.

Shortly after my return from Western Australia I spoke to Mr Brezniak of Counsel who informed me he was proposing to travel to that part of Western Australia in about September 1996.  I prepared a draft statement from my notes and gave it to Counsel.  I am informed by Counsel the witness signed that statement in about September 1996 with minor amendments.

Upon receiving a copy of the witness statement on about 18 October 1996 I formed the view there were reasonable grounds for pursuing amendments to the Statement of Claim regarding homicide.

Now, your Honours, Mrs Scott immediately pressured Mr Lewis to file the statement of claim for murder but he took three years and two months, so Mrs Scott saved her legal rights, because she stepped in and did it herself, your Honour, on 22 July 1997.

KIRBY J:   Yes, but can we again concentrate on the matter that is before us. The matter that is at the moment before us is an application for special leave from the orders of Chief Justice Martin sitting as a single judge.  Now, normally that matter would go via the intermediate appellate court, the Court of Appeal.  Instead of that you are coming directly to the High Court of Australia.  Now, assuming that we have the jurisdiction to hear it if we want to, that would very, very rarely be done because generally, from our point of view, we find it useful to have the decision of a Court of Appeal because they ‑ ‑ ‑

MR TAYLOR:   It is a foregone conclusion what the Northern Territory Supreme Court is going to say.

KIRBY J:   You say that, but you have not given them the chance.

MR TAYLOR:   If I may read to you from the decisions.  At page 17 of Justice Martin’s decision ‑ ‑ ‑

KIRBY J:   Yes, I have that.

MR TAYLOR:   At line 15 or thereabouts, Mr Martin, now with evidence in front of him, including the photographs, which proved Douglas’s murder, he said:

I’ve received nothing from you which would, in any event, satisfy me that I should allow an amendment to raise the allegation of murder against the Northern Territory of Australia, given that it is sought to be raised many, many years after the events which led to your husband’s death, well outside the period of limitations allowed by law for such an action to be brought, and in circumstances where even if the allegation were able to be proved, the Northern Territory, as the body politic, could not be held responsible for such an act carried out by prison officers.

Well, your Honour, the first thing is that that is clearly wrong.  Your decision in Lepore says that the Northern Territory can be vicariously liable and his Honour was plainly in error in striking the matter out.  The second matter is that the Master, whose decision is the first decision ‑ ‑ ‑

KIRBY J:   Yes, I have read that.

MR TAYLOR:    ‑ ‑ ‑says at page 5 of the joint application book, bottom paragraph, line 20:

Applications in similar terms have been made in relation to proceeding numbered 75 of 1995, which was commenced on 24 April 1995.  One of the persons for whose benefit the proceeding has been commenced is an infant and time has not yet begun to run against him.  (Limitation Act section 36). However, for the reasons stated above, the proposed amendments should be refused.

The only reasons stated above, your Honour, which did not relate to time, were Lackersteen v Jones and Deatons v Flew.  Your Honour, the decision in Deatons v Flew, he has not taken into account where Justice Dixon says where the employment gives the opportunity for the crime, and that is a fundamental mistake on his part.

Clearly the decision of Justice Asche in Lackersteen v Jones is wrong or it must be overruled now in terms of after the decision in Lepore and given the authorities cited, including Copeland v Ministry of Defence [1999] NIQB 12, which is on the authorities list, where a Northern Ireland soldier was convicted of attempted murder of an innocent civilian and the Crown was vicariously liable.  There are many other authorities cited there.  It is not necessary to go through them, we do not have the time, but there is the authority from the Northern Territory which plainly conflicts with that, where we have Lackersteen v Jones, page 46, where it was said that:

nothing in the police administration generally could conceivably warrant the assaults, the threats, the menaces with a revolver and the actual shooting of a revolver close to the crouching and terrified plaintiff that occurred here.  It would indeed be a sad day for our society if it were otherwise.

The poor plaintiff in that case at least was indemnified against paying the costs of the Northern Territory, but in the case which was based on that, Steven Gorey Jambajimba, which is produced at page 236 of the authorities books, Justice Martin awarded costs against an innocent Aboriginal man who was arrested and placed into protective custody ‑ ‑ ‑

KIRBY J:   Yes, but what does that have to do with this case, Mr Taylor?

MR TAYLOR:   Your Honour, this is the law in the Northern Territory; the law is that the Crown will not be held vicariously liable for an act of murder or a crime.  There is no point in appealing to the Northern Territory Supreme Court and going through another how many years of litigation up there.  It is taking the life out of Mrs Scott and her family and she just cannot do it and it is plainly wrong, your Honour.  The poor plaintiff, Steven Gorey Jambajimba was kicked, he had his internal organs ripped apart by a brutal beating, and when he sued the police officers who did this to him and the Northern Territory, the respondent in this case - Mr Grant is familiar in this case because he acted for the Northern Territory in that matter - Justice Martin said it is not reasonable that the unsuccessful defendants should have to pay two sets of costs.  So the plaintiff was forced to pay the Northern Territory for his injuries.  He was nearly killed.

KIRBY J:   Well, not formally; he was required to pay by reason of the fact that the costs followed the event.  That is the usual rule in our system.

MR TAYLOR:   Effectively, your Honour.  Now, that decision is plainly wrong.  This is a matter of public importance that your decision now will help this plaintiff, this poor man, it will help Lackersteen, who was taken out and brutally had Northern Territory police officers play Russian roulette.  Now what if Jambajimba had died.  We looked through the Royal Commission reports the other day.  There was a Jambajimba who was actually hanged and was one of the subject cases of the Royal Commission. 

Now, what if Jambajimba had died; would he have been hanged up?  Undoubtedly.

MRS SCOTT:   And Douglas was murdered and they got away with it.

KIRBY J:   Yes, very well.  Is there anything else you wish to say?

MR TAYLOR:   Yes, your Honour.  It is absolutely imperative that those laws be overruled.  It is a matter of grave public importance and Mrs Scott cannot be forced to go back to the Territory to be put through all this yet more and more and more.  This Court is capable and sees the jurisdiction to deal with it and it must exercise its responsibilities under law.  It has been 19 years, your Honour, and Mrs Scott was not at fault.  Mrs Scott put in her statement of claim within the three year limitation period.

KIRBY J:   Not really.

MR TAYLOR:   Yes, your Honour. Section 42 of the Limitation Act; I refer you to the ‑ ‑ ‑

KIRBY J:   The death of the deceased happened in 1985.  The writ of summons was not issued until 1992.

MR TAYLOR:   Do you have the authorities list, your Honour? 

KIRBY J:   No, but just answer that.  You said three years.  1985 plus three is 1988.  The writ was not issued until ‑ ‑ ‑

MR TAYLOR:   The limitation period does not run until the crime is discovered.  Anything which is concealed does not count in the limitation period.

KIRBY J:   No, it runs, but you can get relief from it under section 44.

MR TAYLOR:   No, that is section 44. Section 42 is about concealment, it is about discovery. It is actually a point which is raised in many of the sexual abuse cases. However, in those cases it is a bit weaker because the plaintiff is obviously still alive, but in this case it is a matter of discovery, true discovery, your Honour, and fraudulent concealment by agents of the respondent, and that cannot be allowed to permit it to run against the plaintiff.

KIRBY J:   Mrs Scott’s time is up now; thank you very much, Mr Taylor.  Yes, Mr Grant.

MR GRANT:   Your Honours ‑ ‑ ‑

KIRBY J:   What is the position first of all in relation to the infant against whom the Limitation Act apparently is taken as not running?

MR GRANT:   Your Honour, in respect of that particular proceeding there has been a temporary stay imposed by the court subject to the applicant properly instructing a solicitor to make application to remove the stay and continue the proceeding.

KIRBY J:   So that proceeding is not affected by the proceedings that are before us?

MR GRANT:   That order is the subject of one of the applications; it is the subject of the application in D9 in part.

KIRBY J:   Secondly, there was a suggestion that, in respect of the new cause of action which related to the alleged deliberate nature of the homicide, that that gave rise to a cause of action which could be brought and that time would not run in that case until after the persons affected were aware of the deliberate nature of the homicide.  What do you say about that?

MR GRANT:   Your Honour, that is in fact the case. If the matter falls within the ambit of section 42 of the Limitation Act, we concede that to be so, but it does not operate as against the Northern Territory of Australia, because the concealment must be the act of the party against whom the action is brought, in my understanding of the provision. The Territory was not in this case, on any evidence that is before this Court and even, it would appear, on the submissions that are put here today, a party to that concealment. So section 42 has no effect in these circumstances. Even if it did, your Honour, that in itself would not operate to displace the determination made by the Chief Justice in the matter.

The determination made by the Chief Justice was in essence that there would be no grant of an extension of time to appeal from the decision of the Master because the applicant had not made out grounds sufficient to warrant that grant.  Now, his Honour did then go on to consider ‑ ‑ ‑

KIRBY J:   The Chief Justice’s reasons are given ex tempore.  Was that on the basis that there was no cause of action or that Mrs Scott had failed to explain the delay, or both?

MR GRANT:   Well, in my reading, your Honour, it was that Mrs Scott had failed to explain the delay.  If I could take your Honour to ‑ ‑ ‑

KIRBY J:   The delay was not very great at that stage, was it?  The major delay in this case was prosecuting the matter in this Court.

MR GRANT:   Yes, that is so, your Honour.

KIRBY J:   It is about three years.  What was the delay in respect of the application for leave to appeal from the Master?

MR GRANT:   Only a matter of months, your Honour.  The appeal was brought in February of 1999 in respect of a decision made by the Master.

KIRBY J:   The Master’s reasons were given on 22 October 1998.

MR GRANT:   That is so, so a matter of three and a half months, your Honour, out of time.

KIRBY J:   When was the application for leave to appeal to the Supreme Court that came before Justice Martin filed?

MR GRANT:   On 11 February 1999.  That is at page 9 of the joint application book.

KIRBY J:   And under the rules it has to be brought within a month, does it not?

MR GRANT:   Yes, 28 days, your Honour.

HEYDON J:   The return date was the 11^th.

KIRBY J:   Yes.  Well, what do you say in relation to the other matters that were advanced for Mrs Scott by Mr Taylor?

MR GRANT:   Your Honour, there are two matters I would address particularly.  The first was a suggestion that the Chief Justice had ignored proof or evidence that was comprised by various photographs.  Those photographs were not before the court, your Honour, so far as I can discern from the record.  There was a subpoena issued for their production, but they were not at all ‑ ‑ ‑

KIRBY J:   As I understand it, lying behind a lot of these proceedings is a concern by Mrs Scott for herself and her family that the true cause of the death of her late husband should be investigated properly and again, and in the light of some fresh evidence that she says that she has from the United States and elsewhere, presumably of a forensic nature, relating to the manner and cause of death.  Now, is it the position in the Northern Territory of Australia as it is in New South Wales, that you can apply for a reopening of an inquest and that if you establish a ground for reopening of the inquest, that that will be ordered?  Is there a power under the Coroners Act (NT)?

MR GRANT:   There is, your Honour, and that application has in fact been made by Mrs Scott and I understand that the coroner is considering that now and I also understand that he has engaged somebody from the independent Bar to assess that application.

KIRBY J:   On the face of things, if the purpose is the inquiry into the manner and cause of death, the coroner’s inquest is the traditional, ancient and appropriate place for that to be decided if in fact there is some fresh evidence that warrants that course of the reopening of the inquest.

MR GRANT:   That would be our submission, your Honour.  It would appear, as your Honour has discerned, that Mrs Scott is not so much motivated by a desire to procure damages; she is motivated by a desire to have the death investigated.

MRS SCOTT:   Yes, I am.  You are going to pay damages for Douglas’s murder.  I will leave Australia.

MR GRANT:   In our submission, your Honour, the Coroners Court is the appropriate forum for that.  Of course, this matter was, as your Honour knows, the subject of an inquiry by the Royal Commission into Aboriginal Deaths in Custody and the Commissioner in question was Mr Elliot Johnston, QC, so it has already been the subject of quite rigorous inquiry.  There is some suggestion of fresh evidence and that is a matter which the coroner is currently considering.

KIRBY J:   And Mrs Scott was represented in that application by a member of the Northern Territory Bar?

MR GRANT:   In the application to reopen?

KIRBY J:   To the coroner.

MR GRANT:   It is not an application that is heard in court.

KIRBY J:   I see, it is to the Supreme Court.

MR GRANT:   No, it was previously to the Supreme Court, but now the application is made directly to the coroner; it is made by way of letter.  There is no open hearing in relation to it and the coroner in this case has engaged counsel from the independent Bar to consider the application.

KIRBY J:   Well, that is a different procedure, as I recollect, from New South Wales where there is an application to the Supreme Court for an order that the coroner reopen the inquiry.

MR GRANT:   That was previously the position in the Territory, your Honour.

KIRBY J:   It may have changed in New South Wales too.

MR GRANT:   So, your Honour, there is a suggestion that there were photographs.  Those photographs were not before the Chief Justice and those photographs are not proof of murder at all.

KIRBY J:   As I understand it, your case is really twofold, maybe threefold.  First, that proceeding directly to the High Court of Australia is a possibly available course but one which should only rarely, if ever, be granted because it bypasses the intermediate appellate court and thereby deprives this Court of the benefit of the reasons of the intermediate court and possibly the party who is complaining of satisfaction in that court, which is the normal and regular place.

MR GRANT:   Precisely so, your Honour.

KIRBY J:   That is your first argument.

MR GRANT:   That is correct.

KIRBY J:   Your second argument, as I understand it, is that the decision of Chief Justice Martin was a discretionary decision of practice relating to an extension of time and that it would be rare indeed that an appellate court would intervene in such a matter and doubly rare for the High Court to intervene in such a matter and trebly rare for the High Court to intervene in it without the matter having been first passed upon by the intermediate court.

MR GRANT:   Precisely so, your Honour.

KIRBY J:   And the third argument you have goes to the merits of the proceedings in any case.

MR GRANT:   Well, it goes to those special leave issues, your Honour, whether or not it is appropriate to ‑ ‑ ‑

KIRBY J:   Have I understood correctly the grounds of opposition that you have raised?

MR GRANT:   Yes, your Honour.  I am able to address your Honour on Lackersteen if your Honour wishes.  It is the case that is raised by – it is not relevant, we say, to the application that is brought by the applicants, but my friend suggests that Lackersteen is somehow at odds with the decision of ‑ ‑ ‑

KIRBY J:   He is not your friend yet; he may one day be.  It is Mr Taylor.

MR GRANT:   Mr Taylor suggests that ‑ ‑ ‑

MRS SCOTT:   He will never be your friend until Australia gives justice for our people that it murdered.  He will never be your friend, because you hate us, because you allow people to murder us, and I want compensation from this Court ‑ ‑ ‑

KIRBY J:   Anyway, Mrs Scott, we will hear you in reply.

MRS SCOTT:   I want compensation today from this Court for the murder of my husband.

KIRBY J:   We will hear you in reply.  You go on, Mr Grant.

MR GRANT:    Your Honour, Lackersteen involves the consideration of section 163 of the Police Administration Act, which creates a statutory vicarious liability in the Crown in respect of the exercise of the independent statutory functions by police officers pursuant to the Police Administration Act.  It does not ‑ ‑ ‑

KIRBY J:   This is Enever’s Case, is it?

MR GRANT:   Well, it is a response to Enever’s Case; the determination in Enever’s Case that the Crown will not bear by…..liability for the actions of police officers.  The legislature saw fit to impose a statutory vicarious liability and Lackersteen is nothing but an analysis of the terms of that statute, which provides that the Crown will bear vicarious liability for acts committed in pursuance of powers under the Police Administration Act.  So it is quite different to the common law notion of vicarious liability which was discussed by this Court in Lepore.

So, your Honour, insofar as the Court may consider it relevant, there is no law in the Northern Territory that would preclude the prosecution of the argument that is put by the applicants here today in relation to vicarious liability.  Even if there were, this Court has no doctrine of prospective overruling, so the law in the Northern Territory now is as enunciated in Lepore and they are matters that can still be and remain to be ventilated in the proceedings in the Northern Territory.  One remains on foot, your Honour, and one is subject to these applications and the other is there now pursuant to the remitter ordered by Justice McHugh.

KIRBY J:   Yes, very well.  Thank you, Mr Grant.  Anything in reply, Mr Taylor or Mrs Scott?  Who will speak in reply?

MR TAYLOR:   Mrs Scott says that she demands compensation, that is what her action is for, Douglas has been murdered.

KIRBY J:   Yes, we understand that the proceedings are proceedings for damages.

MR TAYLOR:   Yes, your Honour.  Mrs Scott will raise the constitutional issue, because that will be heard at the appeal.

KIRBY J:   What is the relevance of it?  Is it not, as Justice Heydon pointed out, that if it is raised, it really not only presents the problem of the Judiciary Act and notice, but it effectively says that this is in the original jurisdiction and that therefore you do not have any basis of getting into the appellate jurisdiction and therefore we have just wasted our time.

MR TAYLOR:   Your Honour, it is an appeal in the original jurisdiction, it is like a mandamus.

KIRBY J:   You cannot have an appeal in ‑ ‑ ‑

MR TAYLOR:   It is not an appellate jurisdiction; it does not come within section 73 of the Constitution.

KIRBY J:   You are seeking to get into the appellate jurisdiction.  That is why we have been hearing the special leave application from Chief Justice Martin.

MR TAYLOR:   It is technically called an appeal but it is in the original jurisdiction of the court.  It is in the practice and procedure.

KIRBY J:   Maybe what we should do, Mr Taylor - you think about this.  Perhaps the Court should deal with and resolve the application for special leave to appeal which has now been fully argued.  If you have any basis to come to the original jurisdiction of the Court, that will remain open to you and you can proceed as you are advised, or as Mrs Scott is advised, and the Court can just deal with that in due course.  But we have heard full argument in the application for special leave and it seems appropriate to dispose of that now.

MR TAYLOR:   Mrs Scott is happy to have the original jurisdiction of this Court and to bring in the fresh evidence, because this Court should deal with it in its original jurisdiction and exercise its responsibilities.  If I may, your Honour, Mr Grant is actually incorrect.  The photographs are on the file, if I may tender you an original letter from….  Mr Grant has been provided with a copy of that.

KIRBY J:   We will accept that for the present purposes. It is not really relevant. What is the basis on which you seek to get into the original jurisdiction of the Court, which is defined by the Constitution in section 75 of the Constitution?

MR TAYLOR:   No, this is a matter arising under section 35AA of the Judiciary Act which comes under section 76(ii) of the Constitution, your Honour, being a matter arising under a law of the Commonwealth.

KIRBY J:   What is the law of the Commonwealth that you are ‑ ‑ ‑

MR TAYLOR:   Section 35AA of the Judiciary Act.  Mrs Scott wishes to address the Court.

KIRBY J:   Section 35 of the Judiciary Act?

MR TAYLOR:   Section 35AA, your Honour.

KIRBY J:   Has that not been amended?  Did I not see in the submission for the respondent that that has been amended since - the provision that you are relying on?

MR TAYLOR:   Without relevant effect, your Honour. It cannot change the Constitution, your Honour.

KIRBY J:   No, but section 35AA of the Judiciary Act talks of appeals from the Supreme Court of a Territory.

MR TAYLOR:   Yes, but it still does not make the Northern Territory a section 73 court for the Constitution, your Honour.

KIRBY J:   So what?

MR TAYLOR:   Well, this Court is entitled to receive new evidence and should in fact receive new evidence, the forensic report, and it should deal with the matter in its totality under section 31 and section 32 of the Judiciary Act in its totality, and the eyewitness evidence and, if your Honours ‑ ‑ ‑

KIRBY J:   It still says in 35AA:

(2)  An appeal should not be brought from a judgment, whether final or interlocutory . . . unless the High Court gives special leave to appeal.

So that is what you have been seeking here today.  We have heard full argument on that matter, counsel is here from the Northern Territory, you are here, Mrs Scott is here, Mr Nathan Scott is here, we are here, and we have heard it all.

MR TAYLOR:   Yes, and surely you can take the fresh evidence in the original jurisdiction in the application for special leave to appeal.  But, in any case, I want to refer your Honours to page 16 of the authorities book.  It is the Handbook of Forensic Pathology by Vincent Di Maio and it shows that a ligature mark on the shoulder is murder, your Honours, and I refer you to photograph 19 of those books there.

KIRBY J:   Show that to Mr Grant.

MR TAYLOR:   Douglas has a ligature mark on his shoulder.

KIRBY J:   Yes, we have seen that photograph; yes, you handed that up, but this is a matter which, if relevant anywhere, would seem to be relevant to the application that is apparently under consideration by the coroner of the Northern Territory to reopen the inquest.

MR TAYLOR:   That was before Justice Martin, your Honour, and Justice Martin did not look at any of the evidence and ‑ ‑ ‑

KIRBY J:   Yes, that may be so.  We have seen the photograph; you do not have to hand it up.  We already have it before us in the form of the red document which was handed up earlier and which I will mark for identification 1.

MFI 1:          Folder of photographs

KIRBY J:   We have received that, but what is the relevance of that to the application for special leave which we have heard.

MR TAYLOR:   Jackamarra v Krakouer, your Honour.  His Honour Justice Martin never took into account the evidence of murder which was staring him in the face; plain evidence of murder.  Mrs Scott just wishes to ‑ ‑ ‑

KIRBY J:   Yes.

MRS SCOTT:   I thank you, your Honours, for allowing my children and I to come before this Court, because now that I see what youse are like, that you do not want justice for us, I want to give up my Australian citizenship.  I want to no longer live here; I will take my children.

KIRBY J:   I cannot hear you, Mrs Scott.

MRS SCOTT:   I no longer want to live in the nation of Australia that condones the murder of our people.

KIRBY J:   That may be so, but unfortunately that does not solve the problem.  We have to deal with your application.

MRS SCOTT:   That is all right, because you do not want to bring killers to account for my husband, you do not want to pay us compensation‑ ‑ ‑

KIRBY J:   That is not true and it is not relevant.

MRS SCOTT:   You want justice for the white Australians that rape and bomb in Bali ‑ ‑ ‑

KIRBY J:   That is not true.  I deny that; I reject it.

MRS SCOTT:    ‑ ‑ ‑but not us, so youse do whatever youse want to.  Youse have murdered us for so long.  I want to give up my Australian citizenship and I will, and I will never return to the Northern Territory.  Youse can take me in chains there, because ‑ ‑ ‑

KIRBY J:   We will not take you in chains in any way.

MRS SCOTT:    ‑ ‑ ‑I will leave this country and I will ask Colin Powell and everyone that we want justice.  I am going to ask the international courts.  Thank you.

KIRBY J:   Yes, thank you, Mrs Scott.  We will go outside and consider this for a time and we will then come in and announce our decision.

AT 3.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.44 PM:

KIRBY J:   Mr Douglas Scott died in the Darwin prison on 5 July 1985.  The first applicant is his widow.  She seeks to bring proceedings on her own behalf and for a child and stepchildren of the deceased.  On 1 May 1992 Mrs Scott issued a writ out of the Supreme Court of the Northern Territory claiming damages.  On 19 July 1995 Mrs Scott filed an amended statement of claim.  In this she alleged negligence and breach of statutory duty on the part of the Northern Territory of Australia.  Later she sought to add counts to her statement of claim based on alleged false and unlawful imprisonment of the late Mr Scott and an allegation that the death of Mr Scott was deliberate.

The respondent pleaded the Limitation Act (NT) s 12. That section provides that such an action is:

not maintainable after the expiration of . . . 3 years from the date on which the cause of action first accrues –

Applications to amend the statement of claim duly came before a Master of the Supreme Court of the Northern Territory. In reasons published by the Master on 22 October 1998 the Master noted numerous suggested defects concerning the alleged liability of the Territory. He rejected Mrs Scott’s application to extend time to endorse the writ under s 44(4) of the Limitation Act.  He found that the application was “not supported by viable particulars”.  He commented on the infancy of one of the persons involved.  However, he held that other defects in the claim warranted rejection of the application to amend the statement of claim.  He so ordered.  The proceedings concerning the infant are not before this Court today.

Application for leave to appeal against the Master’s orders was filed in the Supreme Court of the Northern Territory on 9 February 1999.  Under the rules of that court, such application was properly to be made within 28 days of the order.  The applicant was therefore out of time to seek leave to appeal against the Master’s decision.  She applied for leave to extend time for that purpose.  That application came before Chief Justice Martin in the Supreme Court of the Northern Territory sitting alone on 22 September 1999.  His Honour rejected the application.

Throughout the proceedings the applicants have represented themselves, as Mrs Scott did before this Court today.  However, on this occasion the applicants were accompanied by Mr Taylor, a law student.  At her request, the Court gave permission to Mr Taylor to address the Court on behalf of Mrs Scott and he addressed the Court on the arguments which Mrs Scott wished to advance and did so in her presence.

The applicants have now sought special leave to appeal to this Court from the orders of Chief Justice Martin in the Supreme Court of the Northern Territory.  There are several reasons why that application must be rejected.  First and foremost, the applicant has not proceeded first to appeal or to seek leave to appeal to the Court of Appeal of the Northern Territory.  Assuming that this Court might grant special leave to appeal from the orders of a single judge of the Supreme Court of a Territory, it would very rarely do so.  It would be even more reluctant to do so in a case, such as the present, which involves matters of practice and procedure.

The applicant’s application to Chief Justice Martin became out of time by a matter of months.  The failure to act within that time was not, in the findings of his Honour, explained except on the ground of the applicant’s lack of legal advice which his Honour did not consider to be sufficient explanation.  In any event, on the materials as they stand at this stage, the application has no sufficient prospects of success.  Appellate courts, including this Court, are specially reluctant to disturb discretionary decisions in matters of practice and procedure such as this.

Finally, there is a real suggestion that the true purpose lying behind the proceedings, in addition to securing damages, is to obtain an inquiry into the manner and cause of the death of the late Mr Scott.  An application for that purpose is presently before the coroner and is currently under the coroner’s consideration.  Special leave must therefore be refused.

At the end of the application Mr Taylor, on behalf of the applicants, sought to raise a new point involving the Constitution concerned with the entitlement of this Court to receive fresh evidence. It is clearly established by the decisions of this Court that, in appeals from State Supreme Courts, the Court cannot receive fresh evidence, such proceedings being by nature a true appeal: see Mickelberg v The Queen (1989) 167 CLR 259 and Eastman v The Queen (2000) 203 CLR 1.

Mr Taylor said that those decisions did not apply to an appeal from a Territory Supreme Court, such as the application which is presently before this Court.  Nothing that this Court has decided today is intended to put the applicant out of Court in respect of that part of the application if it be relevant.  We have simply dealt with the application in the terms in which it was originally before the Court.  The applicants may pursue the remaining part of the application to the extent that there is any viability and substance in it.  However, in the terms in which the application was placed before the Court today, it is refused.

Do you seek costs in these proceedings, Mr Grant?

MRS SCOTT:   I will never pay them.

MR GRANT:   Your Honour, what about D9 of 2003, which was the matter concerning the infant?

KIRBY J:   I think we were told that matter is not before the Court today.

MR GRANT:   It certainly is before the Court today.

KIRBY J:   I thought you told us, Mr Grant, D9 is not before us.

MRS SCOTT:   Nathan is here.

MR GRANT:   No, your Honour.  What I have attempted to indicate to your Honours was that D9 was still on foot in the Northern Territory subject to a temporary stay but it was the subject – the refusal to grant an extension of time to appeal from the Master’s decision was still on foot before this Court today.

KIRBY J:   What is the reason for the stay in the Northern Territory in D9?

MR GRANT:   The Chief Justice indicated in his decision that it was appropriate to be stayed until such time as the applicant instructed a solicitor to make application to lift the stay and to proceed with the proceeding.

KIRBY J:   Did the Chief Justice dispose of the matter concerning the infant by his orders?

MR GRANT:   No, he did not, your Honour, apart from the imposition of the temporary stay.

KIRBY J:   So the only orders that the Chief Justice made in the matter concerning the infant, D9, was the order of a stay?

MR TAYLOR:   No, your Honour, that is incorrect.  His Honour Justice Martin refused to amend the writ for murder in the matter S75 of 1995, as did Master Coulehan.  There was an application to amend the statement of claim to murder, and I will point out to your Honours that ‑ ‑ ‑

KIRBY J:   This should be clear in the terms of the supplementary application book No 2.

MR GRANT:   Yes, that is correct, your Honour.  There was a refusal to grant an extension of time within which the appeal from the Master’s decision and a refusal to grant leave to amend, which was otiose in the circumstances.

KIRBY J:   Let me understand it clearly.  Did Chief Justice Martin simply stay the matter concerned with the infant or did the Chief Justice dispose of the infant’s application?

MR GRANT:   Your Honour, he disposed of the application for an extension of time.

KIRBY J:   Why did he do that if he was of the view that the infant should have a legal practitioner representing her separate interest?

MR GRANT:   Having disposed of the application for an extension of time within which to appeal the decision of the Master, the Chief Justice then imposed the stay.  But it is still open to the plaintiffs in that proceeding, your Honour, to make application to amend the statement of claim once the stay is lifted.

MRS SCOTT:   No, we will give up our Australian citizenship.

KIRBY J:   Where do we find this in the record?  Could you direct me to the record.

HEYDON J:   Mr Grant, is this the position, that the Northern Territory ‑ ‑ ‑

MRS SCOTT:   Your Honour, I refuse to be in a Court that murders and covers murders and wants justice for whites that are murdered.

KIRBY J:   That is not the case of this Court.

MRS SCOTT:   Well, why do you not pay us compensation?  I am leaving because I am disgusted with you white Australians.

KIRBY J:   Very well, you can leave.

MRS SCOTT:   I will.  I will be glad to leave the country.

KIRBY J:   We will continue to deal with the matter according to law.

MRS SCOTT:   I want to leave this country.

KIRBY J:   Where is it?  Page 25?

MR GRANT:   Your Honour, it starts at the bottom of page 25 of the application book at line 50 and then over and you will see at page 27 of the application book there is the imposition of the stay.

There will be liberty to the plaintiff to apply to remove the stay, upon reasonable notice to the defendant.  Such application will only be permitted by a legal practitioner properly instructed to act.

HEYDON J:   The background was this, was it, that a question arose whether or not the Territory should press for summary judgment in those proceedings?

MR GRANT:   The Territory did not in fact, yes.

HEYDON J:   The way in which it was resolved was that the matter was to be stayed pending the appointment of a legal practitioner who would have the stay lifted so that the issue of summary judgment or not could then be determined?

MR GRANT:   That is exactly so, your Honour.

HEYDON J:   So the point of the stay in effect protected the interests of both the applicants and I suppose the Northern Territory.

MR GRANT:   Yes, that is so, your Honour.

KIRBY J:   So that what I said in my reasons was accurate.  That is to say, that Chief Justice Martin has not disposed of the claim of the infant?

MR GRANT:   No, it remains there to be reignited, if you like, your Honour.

MR TAYLOR:   No, your Honour.  Justice Martin refused to allow – he said that he would deal with the application to amend on the merits and he refused leave to amend the statement of claim, and the only reason which can be attributed to Justice Martin refusing leave to amend Nathan’s statement of claim for murder is the decision in Lackersteen v Jones and Jambajimba.

KIRBY J:   Yes, but that matter remains open to be pursued and if you are discontented with the decision, then within time of that decision you can proceed to the Court of Appeal of the Northern Territory.  The Court of Appeal of the Northern Territory is the place where that will then be determined.  If you are then discontented, there would be the facility to seek special leave to appeal to this Court.

MR TAYLOR:   Your Honour, the Supreme Court has already refused Nathan to amend the statement of claim for murder.

KIRBY J:   That may be because no solicitor was retained to represent his interest.

MR TAYLOR:   No, it is because of the decision in Lackersteen v Jones, your Honour.

KIRBY J:   If that is so, then that still has to be prosecuted through the Court of Appeal.  If the Court of Appeal then determines that and you wish in this Court to challenge the authority on which the Court of Appeal has acted, that is the time to seek special leave to this Court.

MR TAYLOR:   Your Honour, they will not let Nathan amend it again.

KIRBY J:   I am afraid Chief Justice Martin has provided the stay in order to protect the separate interests of the infant and it would seem that that is the course that has been adopted and has to be followed.

MR TAYLOR:   It does not appear to have protected Nathan’s interests because that is an action under the Compensation (Fatal Injuries) Act and Justice Madgwick in the Federal Court wrongly decided that a tort action cannot correspond and coexist with the Compensation (Fatal Injuries) Act and on that basis he disposed of the matter there.  So that has already stood against Nathan and has not protected his interests at all, your Honour, even though he is entitled to have an action in tort and under the Compensation (Fatal Injuries) Act.

KIRBY J:   We were asking you about the costs order, Mr Grant.  In the earlier matter I noticed that you had asked that the costs be costs in the proceedings remitted to the Supreme Court of the Northern Territory, is that correct?

MR GRANT:   Yes, your Honour.  That was following on from the orders that Justice McHugh had made on ‑ ‑ ‑

KIRBY J:   To the orders which were previously pronounced in the case of Scott v Bowden we will add that order, that being the appropriate costs order in the circumstances.  What is the costs order that you seek in this case?  Does the Northern Territory of Australia seek costs against Mrs Scott?

MR GRANT:   That is my instruction, your Honour, to seek that the applicant pay the costs of the proceeding.

KIRBY J:   Mrs Scott has now left the Court.  Does Mr Nathan Scott wish to say anything about the application by the Northern Territory for costs?

MR SCOTT:   I do not know much about the law, your Honour, and it really is my mother and Daniel that are really handling it.

KIRBY J:   It is the normal rule in this Court that if you make an application and you lose it, normally the Court orders that the costs be paid.  Before she left, I heard Mrs Scott say that she will not be able to pay the money, or will not pay it.  That is a different question but, so far as the Court is concerned, the normal thing is for the Court to make the order.  Whether the order can be enforced or recovered is a separate question.  Is there any reason why the Court should not make that order?  Mr Taylor, do you have any information?

MR TAYLOR:   Yes, your Honour.  The evidence is in front of you of murder and it is frankly wrong to ‑ ‑ ‑

KIRBY J:   That has not been established, Mr Taylor.

MR TAYLOR:   Your Honour, it is established.  The textbooks show that – and the forensic scientist said that there is ‑ ‑ ‑

KIRBY J:   That is something you should put before the coroner.

MR TAYLOR:   ‑ ‑ ‑ manual neck compression, your Honour, they said.  That is from the international scientist.

KIRBY J:   The application in Scott v Northern Territory is dismissed with costs.  Certify for counsel.  The Court will now adjourn.

AT 4.00 PM THE MATTERS WERE CONCLUDED