Shergold v Tanner

[2001] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M128 of 2000

B e t w e e n -

PETER ROGER SHERGOLD, AS DELEGATE OF PETER KEASTON REITH, MINISTER OF STATE FOR EMPLOYMENT, WORKPLACE RELATIONS AND SMALL BUSINESS

Applicant

and

LINDSAY TANNER

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 22 JUNE 2001 AT 11.50 AM

Copyright in the High Court of Australia

MR A.L. CAVANOUGH, QC:   If the Court pleases, I appear with my learned friend, MS W.A. HARRIS, on behalf of the applicant.  (instructed by Australian Government Solicitors)

MR K.H. BELL, QC:   If the Court pleases, I appear on behalf of the respondent with my learned friend, MR S.G.E. McLEISH.  (instructed by Maurice Blackburn Cashman)

GUMMOW J:   We would be obliged to hear from you first, Mr Bell.

MR BELL:   The applicant seeks special leave to appeal to argue at final hearing the following things which, we submit, make it palpably clear that the decision of the majority in the Full Court below was correct, such that there is not a sufficient reason to doubt the correctness of that decision:  (1) the legislature failed to include any provisions in the Freedom of Information Act excluding the availability of relief in respect of judicial review of the decision to grant the certificate; (2) the legislature failed to list decisions to issue certificates under the Freedom of Information Act in the list of excluded decisions in the Judicial Review Act; (3) the legislature failed to adopt the well‑established mechanism of provisions that certified not just the subject matter of the certificate but the due making of the certificate itself, as explained in Bloeman and Richard Walter; (4) there were express provisions in the Freedom of Information Act excluding some of the provisions of the Judicial Review Act, yet no provisions of the Freedom of Information Act excluding judicial review in respect of decisions to issue certificates; (5) the Freedom of Information Act was enacted in 1982 into an existing scheme providing for judicial review of administrative decisions and the decision to issue a conclusive certificate is, as a matter of common ground, an administrative decision.  Lastly, there is a fundamental principle applied by the Full Court in the majority judgments that any restriction upon a court’s jurisdiction must appear in statutory language with unmistakable clarity.

GUMMOW J:   That is a little bit circular in federal jurisdiction.  There is no general jurisdiction in Federal Courts.

MR BELL:   No.  It is all statutory.  True, but there is a general jurisdiction conferred by way of review of administrative decisions under the Judicial Review Act into which a decision to issue a conclusive certificate would fall as a matter of ordinary language so that the principle that is applicable is whether or not that general jurisdiction is excluded by statutory language in another statute – in this case the Freedom of Information Act – as a matter of unmistakable clarity.

GUMMOW J:   It is a related statute, obviously.

MR BELL:   It is a related statute, that is true, and it is connected in text in some places.

GUMMOW J:   Yes.

MR BELL:   A powerful point upon which to conclude that where the legislature intended to remove a right it would do it expressly and yet did not with respect to decisions to issue conclusive certificates.

KIRBY J:   Well, your six points are very powerful and they have force, but on the other hand, we have a case here which involves the general operation of this Act.  It is a significant question and we have a strong dissenting opinion in the Full Court of the Federal Court by Justice Burchett.  So the issue is whether, notwithstanding the arguments that you put forward that could persuade this Court and did persuade a majority in the Federal Court, this is not of such significance for the administration of the Act and for the good government of the Commonwealth that the issue should not be considered by this Court.  That is, as I see it, the question.  You might ultimately win.

MR BELL:   Yes.

KIRBY J:   And the points you make have power, but it does seem to me to be an important question.

MR BELL:   It is a question that has importance and the Full Court said so, and I do not seek to persuade this Court otherwise, but the question is how much.

GUMMOW J:   Now, Justice Burchett in his dissenting judgment, I think towards the end, said that in some circumstances, despite the use of the word “conclusive” there might be a ground for challenge, did he not?

MR BELL:   His conclusion was that the use of the word “conclusive” rendered conclusive not just the subject matter of the certificate but the decision to issue it and that is a conclusion that we say is incorrect and in respect of which the decision of the majority should be preferred.  Our criticism of Justice Burchett’s judgment is that he failed to make a distinction recognised in the authorities.

GUMMOW J:   Yes.  I was thinking of page 142, Mr Bell, paragraph 76 of his Honour’s judgment.  How is that to be understood?  Is his Honour thinking of section 75(v) and 39B?

MR BELL:   Your Honour, I do not know and I cannot assist your Honour because his Honour’s judgment was to the effect that since the statute did use the word “conclusive” in respect of the subject matter of the certificate, no ground of judicial review pleaded by the applicant was available with respect to the decision to issue it and we would expect that the same conclusion would be arrived at by a court exercising the jurisdiction to grant constitutional relief. 

In respect of that we say that his Honour failed to draw a necessary distinction between the decision to issue a certificate and the subject matter of it and that distinction is apparent from the judgments of the High Court in Bloeman and in Richard Walter and his Honour, with respect, failed to apply the logical consequences of those judgments, which was that there is a distinction between the decision and the subject matter of the certificate.  That is why we say, your Honour Justice Kirby, that though there is a dissenting judgment on an important matter, the strength of the dissent is not so great as to persuade this Court to grant special leave.

KIRBY J:   Well, we have to make our own assessment.  It is not the strength or otherwise of a dissent, but there is a dissent and it does seem to me to be a matter of general importance for the administration of a very important statute.

MR BELL:   Let me address that matter.  There has been, so far as our researches would indicate, but one challenge instituted in respect of a conclusive certificate under the Commonwealth statute, being the challenge instituted in the present case, so that it must be said that the proceedings before this Court are unique.  It is a poor basis, in our submission, upon which to grant special leave that a unique proceeding has been instituted in the court below.

KIRBY J:   How could we say that without knowing how many challenges there are altogether, how many conclusive certificates have been asserted and how many people have begun, but not got to court, on a challenge of a conclusive certificate?  I mean, we just do not know.

MR BELL:   I can only put it on the basis of what the decided cases would indicate, your Honour.

KIRBY J:   Do you make the point that if it had been such a big issue one would have expected it to have come up earlier?

MR BELL:   We would have, your Honour.  Conclusive certificates are important documents that have an adverse ‑ ‑ ‑

GUMMOW J:   They certainly are issued from time to time, in my recollection of practice.

MR BELL:   They have been issued from time to time and the Administrative Law Decision Reports and the Administrative Appeal Reports are replete with decisions in relation to their review in the Administrative Appeals Tribunal.  There have been several decisions of the Full Court, Forrest’s Case being one, Department of Industrial Relations v Burchill being another, concerning the legal principles governing them and yet there has never been a challenge by way of judicial review to the issue of a conclusive certificate.

KIRBY J:   Maybe we have been saving it up for this one.

MR BELL:   Perhaps so, your Honour, but this Court would, if it granted special leave, be examining a point said to be of general public importance with respect to the administration of a Commonwealth statute, yet in respect of a matter that has not previously arisen.  In our submission, that is not an appropriate matter for the grant of special leave.

It is said against us that the decision has importance with respect to the administration of State statutes.  Our review of the State statutes reveals that the provisions, though similar, are not identical and, in particular, the word “conclusive” is not utilised in order to express Parliament’s intention with respect to the subject matter of the certificate.

This case turns very largely, if not entirely, upon the Court’s construction of that word and its enunciation of the implications for it in respect of the subject matter of the proceedings so that if anything, this case raises issues only of relevance in respect of the administration of the Commonwealth statute and, in our submission, that is not so great a consideration as to warrant a grant of special leave.

It is said against us that the issues in respect of which we seek judicial review are incapable of sensibly being considered within that framework and I refer here in particular to the dissenting judgment where it is contended, indeed held, that issues of a political nature are not issues which can ordinarily be accommodated within the judicial review framework.

In our submission, that misunderstands the nature of our case.  Our case is to the effect that Mr Tanner was denied natural justice in respect of the issue of the certificate.  Our case is that the issue of the certificate was motivated by an improper ulterior purpose.  Our case is that the issue of the certificate involved the misapplication of the statutory tests, among other grounds, all of which are orthodox administrative judicial review grounds and all of which can be sensibly accommodated in respect of the issue of the conclusive certificate, in our submission.

The case against us really is that, despite the statutory power, it being assumed, being in breach of the rules of natural justice, being motivated by an improper ulterior purpose and being exercised in error of law, the court cannot grant relief and that submission, in our submission, could only be accepted where unmistakable language in a statute pointed to its correctness and that language is absent in the present case.

KIRBY J:   I take the force of your arguments on the statute but they do not really knock away the significance of this very important statute for good administration in the Commonwealth and the attractions of this Court having the final say on such a question because one has also to look down the track and conclusive certificates appear in a number of federal statutes and they appear sometimes in a judicial field.  I think that is the case with extradition statutes, but they appear also, I think, in administrative fields.

MR BELL:   They do.

KIRBY J:   And, therefore, the issue of general principle is not without importance.

MR BELL:   And the issue of general principle, we would submit, is resolved, with respect.  The issue of general principle ‑ ‑ ‑

KIRBY J:   You say it just depends on the particular statute.  We just have to look at it and perhaps compare it with other statutes and draw your inferences.

MR BELL:   Precisely, your Honour.  That is what Goldsbrough Mort says.  That is what Bropho says.  One looks at the statute, identifies whether there is unmistakably clear language restricting the court’s jurisdiction and answers accordingly.  In respect of conclusive certificates, this Court carefully reviewed the nature of conclusive certificates in Bloeman and Richard Walter and came to the conclusion that a distinction was to be drawn between the decision to issue one and the consequences in respect of the subject matter of the issue.

We respectfully submit that the important questions of principle, with which the Court might be concerned in this case, have already been enunciated so that at the end of the day the Court would be involved in the application of those principles in the case, rather than their enunciation.

KIRBY J:   But in a rather important sphere of statutory operation.

MR BELL:   I cannot deny the importance ‑ ‑ ‑

KIRBY J:   What was unmistakably clear to Chief Justice Black and Justice Finkelstein was not unmistakably clear to Justice Burchett or vice versa.

MR BELL:   No.  I cannot deny that, your Honour.  The written word speaks its own language.

GUMMOW J:   Now, how does 33A – I see how it ties up with the AD(JR) Act but it is excluded by operation of the schedule, is it not?

MR BELL:   No, that is the point.

GUMMOW J:   Why not?

MR BELL:   Pardon me, your Honour, did your Honour say that 33A is excluded in the Judicial Review Act schedules?

GUMMOW J:   Yes.  How does that all ‑ ‑ ‑

MR BELL:   If it is, your Honour, it must be a recent enactment, because at the relevant time it was not.

GUMMOW J:   Yes.  So your point is, you would expect it to be a schedule section.

MR BELL:   We would, your Honour, and we make the point that the Freedom of Information Act, in two places, excludes the operation of the Judicial Review Act.

GUMMOW J:   Yes.

MR BELL:   There is an obvious point to be made about that.

GUMMOW J:   That is what I have in the back of my mind.

MR BELL:   Yes, and yet, though the Freedom of Information Act was introduced into the new administrative law setting in 1982 and could well have been included in the Judicial Review Act as an excluded item, it was not.  We say that points unequivocally to the lack of any intention on the legislature for there to be not judicial review available with respect to decisions to issue certificates.

GUMMOW J:   And how does it tie up with the AAT Act?

MR BELL:   It ties up with the AAT Act in that the AAT has conferred upon it by the Freedom of Information Act provisions, not the AAT Act provisions, a special kind of merits review, that is, the power to determine the reasonable grounds upon which the ‑ ‑ ‑

GUMMOW J:   That is Part VI.

MR BELL:   Correct. 

GUMMOW J:   Yes.

MR BELL:   It does not otherwise tie up with the AAT Act which provides only the general framework within which the AAT operates.  So that the Court has to be persuaded, despite the six points with which I opened, that there is nonetheless sufficient reason to doubt the decision of the majority to grant special leave to appeal and we invite the Court not to so conclude.

GUMMOW J:   Just a minute.  Do not sit down yet.  What about costs?

MR BELL:   We would respectfully invite the Court to make the costs order that has been referred to by our learned friends.

GUMMOW J:   I am looking at page 190, paragraph 13.

MR BELL:   Yes.  That is a costs order with which we would agree.

KIRBY J:   If the Commonwealth wants to have this point agitated at this level, it has to be ready to pay the costs in any event.

MR BELL:   It does, yes.  Could I make one final point?  Could I ask the Court to go to page 84 of the application book?  It is here that the questions are set out.  This is from the judgment of the trial judge.  Question 1 is the relevant one.  It is the one that was answered yes.  The question is:

Whether the alleged decisions referred to in paragraphs 1 and 3 of the proposed further amended application for review dated 2 December 1999 are amenable to review by the Court as sought in the proposed further amended ‑ ‑ ‑

GUMMOW J:   They are rather awkward questions.

MR BELL:   Yes, they are very awkward and we have indicated that from the outset.

GUMMOW J:   Mr Cavanough’s point, I think, it is not just these alleged decisions; it would be any decision because of the word “conclusive”.

MR BELL:   Yes, but this Court will be bound to decide the question as framed.

GUMMOW J:   Yes.

MR BELL:   And the question as framed refers to questions in pleadings.

GUMMOW J:   That is right.

MR BELL:   So that there is a real question as to the generality of the decision that this Court might issue.

GUMMOW J:   Yes.

MR BELL:   And that deprives this case of the status of a case, a decision on which would have general application.  This is a case, in respect of the question as framed, deals with a specific pleading not with a point of general application.

KIRBY J:   Yes, but that is in the nature of the exercise of federal judicial power, that it has to deal with a particular point and not with theory or general advisory opinion or some general issue of the law or of interest.  It has to be targeted in like an Exocet missile on a particular question.

MR BELL:   Yes.

KIRBY J:   The issue of principle is tendered.  You are not really suggesting after all the ink has been spilled on this case that an important issue of principle is not tendered.

MR BELL:   That is not what we have contended.  We have tried to deal with a question which is targeted specifically, rather than generally.  We can only refer to the way that is framed, your Honour.  These are not our words.  These are our ‑ ‑ ‑

KIRBY J:   Your argument is because of the question framed on page 84 this would not be a suitable vehicle in which to advance the general principle.

MR BELL:   It is.

KIRBY J:   Did you argue that before the Full Court?

GUMMOW J:   It can be dealt with by limiting the grant of leave.  If you look at page 165, if one was going to grant leave, you would limit it to reflect (e), for example.

MR BELL:   If leave is granted the question ought to be stated with specificity and, in our submission ‑ ‑ ‑

GUMMOW J:   No, the ground of leave would have to be narrowed so much that all that was involved in the question was no more than this construction issue.

MR BELL:   Yes.  We would so submit.

GUMMOW J:   Yes.

MR BELL:   There is a question of prematurity as well, your Honours.  In this case there has been no attack on the pleadings.  There has been no strike‑out summons.  There has been no trial.  There has been no evidence and this case comes up on a special question without any of that having happened.  It would be better, in our submission, for the trial to be conducted, for any attack rather to be upon the pleadings invoking the grounds said to be unavailable and on the basis of appropriate evidence, so that if there is a question of importance as regard to the administration of a Commonwealth statute, this is not the time at which to address it.

KIRBY J:   Yes, but unless it is granted now you get behind the certificate.  Let us be real.  Get real, as they say.

MR BELL:   No, your Honour.  We do not get behind the certificate.  We get behind a decision made in error of law in breach of our client’s rights to natural justice and for an ulterior purpose ‑ ‑ ‑

KIRBY J:   Well, that is the question to be decided.

MR BELL:   It is, your Honour, but that is what we get behind.  We do not get to documents or subject matter, the FOI exempt status of which was conclusively certified by the certificates and we would not in these proceedings.

GUMMOW J:   Yes, thank you, Mr Bell.  Yes, Mr Cavanough.

MR CAVANOUGH:   If your Honours please.

KIRBY J:   Do you tender the costs in the event that the Court grants special leave?

MR CAVANOUGH:   Yes, we do, your Honour.

KIRBY J:   And what do you say to Justice Gummow’s question relating to confining the matter to paragraph (e), which would seem to me to sufficiently raise the issues of law that you wish to agitate?  I mean, the particular points on the other grounds would seem to be matters of argumentation but the essential question of law is whether “establishes conclusively” has the meaning that the primary judge and the majority of the Full Court gave them.  Is that not enough for you?

MR CAVANOUGH:   When your Honour refers to paragraph (e), is your Honour referring to page 169?

KIRBY J:   Page 166.

GUMMOW J:   It may need some further refinement but the idea is, is it not, that the Full Court should have ordered the separate question be answered in the negative because of the particular construction that should be placed on these provisions?

MR CAVANOUGH:   As distinct from any particular defects in the pleading?

GUMMOW J:   That is right.

MR CAVANOUGH:   Yes.

KIRBY J:   We do not want to become the court of pleading.

MR CAVANOUGH:   No, your Honour, but this pleading happens to provide a suitable vehicle for the determination of the point of principle because it can be seen that it throws up an attack on the decision‑making process, that is it seeks to go behind the conclusive certificate, and that is the entirety of the nature of the attack and one can see that when one reads the pleading.  So it is a suitable vehicle, we say, and it has never been suggested to the contrary and it certainly was not below.

KIRBY J:   Yes, but you will understand Justice Gummow’s concern, which I share, that we should not become engaged in elucidation of the pleadings in the case.

MR CAVANOUGH:   No.

KIRBY J:   That the High Court, if it enters this field, should limit itself to the question of principle relating to the interpretation of the Freedom of Information Act.

MR CAVANOUGH:   Yes.

KIRBY J:   So it is a question of formulating your ground in a way that is more precise.

MR CAVANOUGH:   Yes.  The question really is what ‑ ‑ ‑

GUMMOW J:   Well, you may need a moment to do that and it can be mentioned again.  We get a bit weary of drafting people’s applications on the spot.

MR CAVANOUGH:   Yes.

KIRBY J:   Generous hearted though we are.

GUMMOW J:   You see what has to be done if there is to be a grant.  The Full Court should have ordered that the separate question be answered in the negative because – and then you have to set out succinctly what you say is the correct construction of 33A(2) and 36(3).  It is not a complex proposition.  It is a pure question of construction of the statute.  You have to say what the correct construction is and that is your ground.

MR CAVANOUGH:   Yes, your Honour, but the question of principle that arises is, in effect, in freedom of information matters, how far is a ministerial conclusive certificate conclusive?

GUMMOW J:   No, no.  You cannot do it on your feet like that, Mr Cavanough.  We will stand this application down and you can reformulate the suggested grounds and give some effect to what we have been trying to demonstrate to you.

MR CAVANOUGH:   If the Court pleases.

KIRBY J:   It is inherent in that, at the moment, subject to your being able to formulate grounds, that you will get your grant of special leave so you should work hard to get grounds that will be palatable and attractive to us, otherwise we might give you your 20 minutes again.

MR CAVANOUGH:   If the Court pleases.

GUMMOW J:   And you can mention it again at 1.45 pm.

MR CAVANOUGH:   If your Honour pleases.

GUMMOW J:   Very well.  We will adjourn to reconstitute.

AT 12.17 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 1.45 PM:

MR CAVANOUGH:   If the Court pleases, we have endeavoured to ‑ ‑ ‑

GUMMOW J:   Let me read this out.  Justice Kirby and I think this might meet the case and you can both tell me if there is any dissent from it.

Upon condition that in any event the applicants will pay the costs of the respondent in this Court, special leave is granted upon the ground that the separate question should have been answered in the negative as decisions to grant certificates under sections 33A(2) and 36(3) of the Freedom of Information Act 1982 (Commonwealth) are not decisions to which section 5 of the Administrative Decisions (Judicial Review) Act 1997 (Commonwealth) applies and are not reviewable under section 39B of the Judiciary Act 1903 because the effect of section 33A(2) and section 36(3) is to “establish conclusively” that the documents to which the certificates relate are exempt documents within the meaning of the FOI Act.

MR CAVANOUGH:   Your Honours, we would make this observation, that it has not been our case, strictly speaking, that the Federal Court has no jurisdiction in the matter.  It has rather been that ‑ ‑ ‑

GUMMOW J:   I do not know what your submission is.

MR CAVANOUGH:   Our submission was that the grounds, any grounds that go to the decision‑making process as distinct to any defects that may appear on the face of the certificate are not maintainable.  In other words, it is well established in Forrest’s Case that if the certificate, on its face, was uncertain or did not answer the statutory description that it could be set aside.  We just do not want it to be thought that we are challenging that well‑established proposition.  That is really what it comes down to, otherwise any grounds that, in fact, go to impugn the decision‑making process, yes, we say are not maintainable.

KIRBY J:   Have you and Mr Bell agreed on a formula, Mr Bell maintaining his objection?  Had you expressed your own formula or not? 

MR CAVANOUGH:   We have, and we have handed up ‑ ‑ ‑

KIRBY J:   Mr Bell stands resolute against any co‑operation.

GUMMOW J:   Well, you had better discuss it with Mr Bell.

MR CAVANOUGH:   Yes, we have handed Mr Bell a copy.

GUMMOW J:   You should have handed it before 1.45.  You are just wasting more time.

MR CAVANOUGH:   I am sorry, your Honour.  We took some time to formulate it as precisely as we ought.

GUMMOW J:   Well, we will stand the matter down further in the list.  Do consult with Mr Bell and if you can come to any agreement on the footing, of course adverse to Mr Bell in the first instance but nevertheless designed to achieve what has fallen from the Bench as being the object of all of this, namely, not to get into some particular consideration of particular grounds, do so.

MR CAVANOUGH:   Yes.

MR BELL:   We will try ‑ ‑ ‑

KIRBY J:   Have a mental reservation, Mr Bell.

MR BELL:   We will try.

MR CAVANOUGH:   If your Honour pleases.

GUMMOW J:   Thank you.  We will adjourn to reconstitute.

AT 1.48 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 3.05 PM:

MR CAVANOUGH:   If the Court pleases.  We are grateful for the time you have allowed us and peace has broken out between us, I am pleased to inform the ‑ ‑ ‑

GUMMOW J:   That is always good news.

MR CAVANOUGH:   And we have come up with a form of words which is essentially the same as what your Honour has put to us with that slight modification that I foreshadowed.

GUMMOW J:   Yes.  Justice Kirby says we should both say how pleased we are that there is outburst of ‑ ‑ ‑

KIRBY J:   And congratulate counsel for all of their assistance to the Court.

GUMMOW J:   So in this matter there will be a grant of special leave.

MR BELL:   Could I mention something briefly, your Honour?

GUMMOW J:   Yes.

MR BELL:   That is, your Honour, in specifying the conditions earlier, referred to the condition that the respondent’s costs of the appeal in this Court would be paid on a party/party basis by the applicant, however did not mention that the costs orders made by the Full Court and Marshall J would remain undisturbed and we ask that you refer to that condition also.

GUMMOW J:   Yes, that should be understood.

MR CAVANOUGH:   There is no objection to that.

GUMMOW J:   Yes.  So upon the condition that in any event the applicants will pay the costs of the respondent in this Court and the costs below will be undisturbed, special leave is granted upon the ground indicated in the document handed up by counsel this afternoon headed “AMENDED SPECIAL LEAVE QUESTION”.

MR CAVANOUGH:   If the Court pleases.

GUMMOW J:   Would it be a one‑day matter, gentlemen?

MR CAVANOUGH:   I think in the High Court, your Honour, with all the previous submission of written work.  It only lasted a day in the Full Court.  Less, I think.

GUMMOW J:   That sounds right, Mr Bell, Mr Cavanough?

MR BELL:   Yes.

MR CAVANOUGH:   Yes, one day.

GUMMOW J:   Very well then.  The Court will adjourn then to Brisbane on Monday, 25 June 2001 at 10.15.

AT 3.08 PM THE MATTER WAS CONCLUDED