Scott v Northern Territory & Anor.doc; Scott, Ex parte - Re Comm AFP & Anor

[2002] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S11 of 2002

B e t w e e n -

LETTY MARIE SCOTT

Plaintiff

and

NORTHERN TERRITORY OF AUSTRALIA

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Summons

Office of the Registry
  Sydney  No S22 of 2002

In the matter of -

An application for Writs of Mandamus against COMMISSIONER FOR THE AUSTRALIAN FEDERAL POLICE MICHAEL KEELTY, THE COMMISSIONER FOR THE NORTHERN TERRITORY POLICE PAUL WHITE

Respondents

Ex parte –

LETTY SCOTT

Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 7 MAY 2002, AT 9.31 AM

Copyright in the High Court of Australia

__________________

MR A.C. WRENN:   Your Honour, I appear for the applicant in both matters.  (instructed by L.M. Scott)

MR P. ROBERTS, SC:   Your Honour, I appear with MR G.T. JOHNSON in both matters.  (instructed by the Australian Government Solicitor)

MR G.R. SCHNEIDER:   If your Honour pleases, I appear for the Northern Territory of Australia in both matters.  (instructed by the Solicitor for the Northern Territory)

HIS HONOUR:   Now, the first question that arises in these matters is whether or not orders should be made for transfer to the Federal Court under section 44 of the Judiciary Act and, if so, to which registry of the Federal Court they should be transferred.  I have mentioned it at this stage so that if any parties who have not come equipped with the Judiciary Act, they should equip themselves and then I will come back to them after I have dealt with Mr Rayment’s matters.  All right.  Call No 1.

AT 9.32 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 9.36 AM:

HIS HONOUR:   Now, in the first of those matters, that is Scott v Northern Territory, there is an amended statement of claim, a summons by the Commonwealth filed on 28 March 2002 and a summons by the Northern Territory filed on 29 April 2002, is that right?

MR ROBERTS:   That is correct.

HIS HONOUR:   And in the other matter, which is the application under section 75(v) of the Constitution, there is simply an application with a draft order nisi, is that right?

MR WRENN:   That is so, your Honour.

HIS HONOUR:   In the second one, that is the 75(v) application, there is a draft order nisi filed on 21 February.

MR WRENN:   Yes.

HIS HONOUR:   That is the initiating process, I think.  Now, each of these matters is, on the face of it, commenced within the jurisdiction of the Court, but the position of the Court in the original jurisdiction is such, particularly having regard to immigration matters, as those at the Bar table will be aware and others will be aware, there is a great burden on the Court in the exercise of its original jurisdiction which is alleviated, to some extent by section 44 of the Judiciary Act which, in certain circumstances – and I think these are two of them – permit remitter for dealing with by the Federal Court.

In the first matter, that is Scott v Northern Territory, this is a matter in which the Commonwealth is a party, obviously enough, given Mr Roberts’ attendance here today, and section 44(2A) empowers the Court upon its own motion to remit the matter or any part of it to the Federal Court.  The other application is one in which the Federal Court already has original jurisdiction, I would think, given the joinder of the Commissioner of the Australian Federal Police under section 39B(1), which then renders applicable section 44(1).

Now, unless otherwise persuaded, I would propose to make orders under those sections.  A question arises as to which particular registry of the Federal Court would be involved.  Now, I note that your client lives in Sydney.  That is right, is it not?

MR WRENN:   That is correct.

HIS HONOUR:   So the New South Wales District Registry would be more convenient for her, I suppose, would it not?

MR WRENN:   Yes.

HIS HONOUR:   I note also though that the Federal Court Act – if I can find the section – yes, section 48 of the Federal Court Act empowers the Federal Court to sit at various places.  So, if need be, they might have to sit somewhere outside Sydney, but that can be dealt with by them as need be.  Now, do you have anything to say about this, Mr Roberts?

MR WRENN:   Your Honour, sorry to interject.

HIS HONOUR:   Yes.

MR WRENN:   Before things get too much further, you asked if we had the Judiciary Act.

HIS HONOUR:   Yes.

MR WRENN:   It is contained in here and as such I need to ‑ ‑ ‑

HIS HONOUR:   Well, perhaps you had better look at it.  Would you like a few minutes to look at it?

MR WRENN:   No, your Honour, that is fine.  I just need to connect some power, otherwise it will make funny noises in the middle of proceedings.

HIS HONOUR:   Yes, I will take a short adjournment while you get set up.  That might be best.

MR WRENN:   Thank you, your Honour.

AT 9.44 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.54 AM:

HIS HONOUR:   Yes, Mr Wrenn.  Are you all wired up now?

MR WRENN:   Yes, thank you, your Honour.  I am right to go.

HIS HONOUR:   Yes, Mr Roberts.

MR ROBERTS:   Your Honour, we have no real objection to the matters being remitted but we would like to raise just a couple of points in relation to the proposal to remit.  First, in relation to the common law claim, your Honour, we point out that the subject matter of the claim arose in the Northern Territory and, of course, part of, if not all of the claim, or aspects of it, have been dealt with in the Supreme Court of the Northern Territory and there are existing orders.  One, indeed, I think we have referred to it as dismissing the claim.  In fact, the order was a verdict for the Northern Territory.  The other order in the separate proceedings stayed those proceedings.

Now, your Honour, there would be a certain incongruity, we would submit, in remitting this matter to the Federal Court, a court which otherwise would not have jurisdiction if the matter were not remitted to it, in the light of the subject matter of the case and in the light of the orders of the Supreme Court of the Northern Territory.  We just raise those matters.  We would submit that if the matter were to be remitted, the appropriate court would be the Northern Territory Supreme Court.

In relation to the mandamus claim, of course, it appears to us the matter could not be remitted to the Northern Territory Supreme Court, so the Federal Court would be the only court which could have jurisdiction in relation to that.

HIS HONOUR:   I think that is right.  So that raises the possibility of ‑ ‑ ‑

MR ROBERTS:   Of bifurcation?

HIS HONOUR:   Yes.

MR ROBERTS:   That is so, but they are distinct matters.  So that is a matter to be weighed.  The other matter that we do raise, talking of matters, is in order to exercise the remittal jurisdiction, it does refer to matters being remitted, which raises a question of whether your Honour would have to be satisfied that there is a matter or whether that question could be reserved ‑ ‑ ‑

HIS HONOUR:   Well, that itself is a matter.

MR ROBERTS:   Yes – could be reserved to the Federal Court.

HIS HONOUR:   I do not get worried about the Federal Court.

MR ROBERTS:   We are not worried about that, but we just raise, your Honour.

HIS HONOUR:   No, I understand what you are saying.

MR ROBERTS:   That is all we have to say in relation to those matters, if your Honour please.

HIS HONOUR:   Yes.  Well, another thing that occurs to me, Mr Wrenn, Mr Roberts and Mr Schneider – and I will come to you in a minute, Mr Schneider – it may be you could usefully – have you been involved in this matter from the beginning?

MR WRENN:   No, your Honour.  I have been briefed three days.

HIS HONOUR:   That is what I thought might be the case.  It might be useful if you were given the opportunity to look through the pleading in what Mr Roberts calls the common law matter.  You may – and I would provide for it – need an opportunity to amend it, if you wished to do so.

MR WRENN:   I can see the need for amending it.

HIS HONOUR:   Yes, I think that is right.  All right.  Yes, Mr Schneider?

MR SCHNEIDER:   I do not think there is anything that I can usefully add to what Mr Roberts has said, your Honour.

HIS HONOUR:   Yes.  What do you say about the suggestion of the Supreme Court of the Northern Territory rather than the Federal Court of Australia?

MR WRENN:   Well, firstly, your Honour, the incongruity of it all does not outweigh the need for the pursuit of justice, whichever court it goes to.  It does not seem to matter too much about an incongruity – about whether it is incongruous or not.  But I would certainly say that the separation of the matters is probably something that should be avoided.

HIS HONOUR:   I think that is right, yes.  Yes, thank you.  Just pardon me a minute, gentlemen.  What I would propose to order in matter S11 of 2002, that is Scott v ‑ ‑ ‑

MR WRENN:   I am sorry, your Honour.

HIS HONOUR:   Yes.

MR WRENN:   I wanted to address you on your motion, if that is possible.

HIS HONOUR:   Yes.  Well, go ahead.

MR WRENN: I am sorry, your Honour. Having said that, your Honour, section 75(v) of the Constitution is the provision that gives this Court the right to hear this matter.

HIS HONOUR:   That is right, yes, but it gives the Court the right to hear any matter when anyone is run down by a Commonwealth vehicle walking down the street.

MR WRENN:   Certainly, your Honour, yes, but having said that, the case of Phillip Morris Inc v Adam P. Brown Male Fashions Pty Limited – are you familiar with that, your Honour?

HIS HONOUR:   I was in it actually.

MR WRENN:   I stand to be corrected, but I believe that unless there was a substantive matter that had standing in the Federal Court, if the original jurisdiction lie within the High Court, it was to remain there.  These matters are directly ‑ ‑ ‑

HIS HONOUR:   I do not think Phillip Morris decides that, does it?

MR WRENN:   If your Honour pleases.

HIS HONOUR:   We often make orders under section 44, I can assure you.

MR WRENN:   Yes, your Honour.  It would only be appropriate if the matter or matters arise under the federal law and we would say that this is a common law matter that is well – and rests fairly in this Court.  For that reason, we would submit that it should remain here and be dealt with in this Court as two – without separation.

HIS HONOUR:   Of course it can be dealt with, but we are not really equipped to run trials of contested issues of fact, which would seem to be involved here.  Every day we do that, it shuts out other litigants from having a Justice of this Court sit on their appeals, which is our ultimate and essential and exclusive function.  That is the reason why we apply section 44 with Parliament’s assistance, because otherwise people who come here with final appeals in cases of national significance, which we all know about, get pushed back.  That is what I have to think about.

MR WRENN:   Yes, your Honour.  But it would be true that the application for mandamus fairly falls within the federal jurisdiction though.

HIS HONOUR:   Yes, that is right.

MR WRENN:   All right, your Honour.  Thank you.

HIS HONOUR:   Notwithstanding what has been said, I think these matters are very appropriate for the orders I was indicating under section 44.  What I propose in S11 of 2002 is to:

1.Grant liberty to the plaintiff to file and serve any amended statement of claim on or before 7 June 2002 –

That is something over four weeks.  Is that enough?  I would think so.  It should be.

MR WRENN:   Yes, your Honour.

HIS HONOUR:  

2.Remit the matter to the Federal Court of Australia New South Wales District Registry as if the steps already taken and to be taken under order 1 were taken in the Federal Court;

3.The Registrar of this Court to provide to the proper officer of the Federal Court of Australia photocopies of all pleadings, including summonses, filed in this Court and the originals of the other materials in the Court file;

4.The costs of the proceedings in this Court to date are to be costs in the Federal Court;

5.The costs referred to in this Court, including the costs of this order, be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable in the Federal Court and in the discretion of the Federal Court;

6.Certify for counsel.

Then in the other application, S22 of 2002 – you may need to amend your draft order nisi too, I think.

MR WRENN:   Thank you, your Honour.

HIS HONOUR:   I think so, yes.

MR WRENN:   Would you make an order that ‑ ‑ ‑

HIS HONOUR:   Yes, I will.

MR WRENN:   Thank you.

HIS HONOUR:  

1.Grant liberty to the plaintiff to file and serve any amended draft order nisi on or before 7 June 2002;

2.Remit the application under section 75(v) of the Constitution to the Federal Court of Australia New South Wales District Registry as if the steps already taken and to be taken under order 1 were taken in the Federal Court of Australia;

3.The Registrar of this Court provide the proper officer of the Federal Court with photocopies of all documents filed in this Court;

4.The costs of the proceedings in this Court to date be costs in the Federal Court;

5.Costs referred to in this Court, including the costs of this order, be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable in the Federal Court and in the discretion of the Federal Court;

6.Certify for counsel.

Is there anything else?  Yes, thank you, gentlemen.  I will now adjourn.

AT 10.10 AM THE MATTERS WERE CONCLUDED