Sherman v La Trobe University
[2005] HCATrans 62
[2005] HCATrans 062
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M96 of 2002
B e t w e e n -
PETER SHERMAN
Applicant
and
LA TROBE UNIVERSITY
Respondent
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON THURSDAY, 24 FEBRUARY 2005, AT 2.40 PM
Copyright in the High Court of Australia
MR P. SHERMAN appeared in person.
MR N.J. O’BRYAN, SC: Your Honour, I appear for the respondent university. (instructed by Corrs Chambers Westgarth)
HIS HONOUR: Mr Sherman, perhaps if you could be good enough to come to the lectern again, because it will be necessary to transcribe what is said. I have read your summons filed on 14 January, being the summons dated 1 January, I have read an affidavit of yours sworn 14 January. I have read an outline of submissions in support of application for interlocutory orders dated 23 February 2005. I have also read the respondent’s submissions in connection with the applicant’s summons, a document dated 23 February. Do you have a copy of that document of the respondent’s?
MR SHERMAN: I do, your Honour, yes.
HIS HONOUR: Mr O’Bryan, is there any objection to Mr Sherman reading and relying upon his affidavit of 14 January?
MR O’BRYAN: No, your Honour.
HIS HONOUR: Yes. That is read. Now, Mr Sherman, what else is it that you would wish to say?
MR SHERMAN: Thank you, your Honour. Your Honour, I would like to begin by stating that the trigger for this application was the occurrence of four events. The first event was the letter from the Principal Registrar, that was to myself, saying – and I quote specifically – “These provisions for applications for leave and special leave to appeal are made by Rule 41.11 and for applications for removal by Rule 26.05. They apply to all applications for leave and special leave and to all applications for orders for removal which have not yet been determined.” That means that this application may, but would not be decided on the papers that the parties have filed without an oral argument. That letter was dated 23 November. The second event ‑ ‑ ‑
HIS HONOUR: I think I am right in saying that such a letter went to every party having a matter then pending in the Court, Mr Sherman. Be that as it may ‑ ‑ ‑
MR SHERMAN: Thank you, your Honour. The second point was a speech that your Honour had made at a number of seminars for the members of the legal profession, and if I can summarise it, or a portion of it, by saying that your Honour’s seven day seminars appears to contradict what that letter said. If I may read the excerpt that I am relying on – and I am sure your Honour is aware perhaps about what portion of this speech that I am relying on. Your Honour said that:
Then there are the changes made which will permit the Court to deal with some applications for special leave to appeal on the papers. This procedure will be available not only for any application for special leave instituted after 1 January 2005 but also to applications now pending in Court.
Then your Honour proceeds in saying:
What I am saying should not be misunderstood as some indication that the Court proposes to deal on the papers with all, or even the majority, of applications for special leave whether now pending or later issued. The Court has made no decision about which, if any, applications will be dealt with in that way. In that regard, it is important to notice that the calendar which the Court has published for sittings in 2005 includes more, not fewer, motion days. But it is important for legal practitioners and their clients to recognise the effect of rule 1.03: that the new Rules will apply not only to proceedings commenced after 1 January 2005 but to any step in proceedings that is taken after that date. That includes the step of dealing with the application for special leave.
Now, in my submission, your Honour, even though the precise date of that speech does not appear on the Court’s version of the seminar submissions, the indication of the month October/November 2004 suggests that it might have preceded the letter, or the content of the letter, by the Principal Registrar. In my submission, your Honour, as I read the letter addressed to me it suggests that in respect of my application then there have been – and I stand corrected if that is the case – that the Court has made a decision perhaps which applications will not proceed to a hearing.
The third event that…..application was supposed to…..the 1952 Rules, and the fourth event was the introduction of the new Rules. In the applicant’s submission, the introduction of the new Rules affects the applicant’s application in a dramatic way, in the sense that there appears to have been no link provided for in the Rules for the recourse by the applicant to the provisions of the practice notes. I say that for the simple fact that all of the practice – well, most of the practice notes affecting the application are linked to a period in time or a point in time such as a hearing of the application.
HIS HONOUR: Yes.
MR SHERMAN: In other words, the applicant is unable to complete the procedural steps under the new Rules because the day of hearing, however far away that might be, is perhaps getting further – is no longer there, and the applicant cannot, at this point in time, without perhaps suitable orders from the Court, continue to complete or follow the procedural steps unless there are orders for that to happen by the Court.
Now, it is the applicant’s submission that on the applicant’s reading of the new Rules there are three ‑ ‑ ‑
HIS HONOUR: Yes, go on.
MR SHERMAN: There are three main escape routes that are inbuilt in the current Rules, and they are, relevantly, Part 40 of the new Rules, which provides and takes in the applications pursuant to Part 6 and Part 28. Of course, Part 1, rule 1.03.4, which provides for orders to be made by the Court for the 1952 Rules to apply instead of the 2000 ‑ ‑ ‑
HIS HONOUR: Now, why should I make such an order?
MR SHERMAN: The reasons, in our submission, that your Honour should make such an order I can take in Part 40 – if I might take your Honour to Part 40 of the new Rules.
HIS HONOUR: Yes.
MR SHERMAN: Part 40 specifically anticipates logistical or technical problems with the introduction of the new Rules, and it relevantly provides that – and I specifically refer to Rule 40.02, “Application of Chapter ‑ ‑ ‑
HIS HONOUR: Yes, I am familiar with that.
MR SHERMAN: Pardon?
HIS HONOUR: I am familiar with that.
MR SHERMAN: You are right. If I can just:
Without limiting the operation of Part 6 of the Rules –
which is the part dealing with cases unsuitable to be dealt with by the new Rules –
where Chapter 4 does not make adequate provisions ‑ ‑ ‑
HIS HONOUR: No, Part 6 is the general Rules. Yes, go on.
MR SHERMAN: Right, and it takes in the appellate jurisdiction of the Court by referring to Chapter 4. So where there are no adequate provisions made:
for the taking of a step in the appellate jurisdiction of the Court, the provision of Chapter 2 shall be applied with any modification necessary to give proper effect to those Rules in the appellate jurisdiction.
HIS HONOUR: Yes. What is the relevance of rule 40.02 to your present application?
MR SHERMAN: It is in fact under those Rules that this present application is being made. It is to give the necessary effect to carrying out steps. If your Honour was not minded to order that the old Rules were to apply, then the applicant would be relying on Part 40, which specifically is provided for that purpose.
HIS HONOUR: Am I right in understanding that by practice direction dated 8 December 2004, a number of former practice directions were rescinded?
MR SHERMAN: That is correct, your Honour.
HIS HONOUR: And by practice direction No 1 of 2004, further practice directions were given about applications for leave or special leave. What is it that is deficient?
MR SHERMAN: What is deficient are the three remaining practice directions that were not rescinded, and in your Honour’s speech are encouraged to be followed. And if I can take your Honour to my summary of argument, they are specifically practice direction No 1 of 1984, which requires a 48 hour notice for the use of extrinsic material.
HIS HONOUR: That is 48 hours before hearing?
MR SHERMAN: Exactly.
HIS HONOUR: Yes, and if the matter is to be ended for oral argument, a hearing letter will issue. What is the deficiency?
MR SHERMAN: The deficiency is that, as it stands now, the applicant is not able to provide the Court with any of the references to document – well to the documents to which references were made in the ‑ ‑ ‑
HAYNE J: The Court has not yet decided whether the matter will be entered for oral hearing or not.
MR SHERMAN: That takes me ‑ ‑ ‑
HIS HONOUR: That is to say, the Court has not yet decided whether rule 41.11.1 is engaged or not.
MR SHERMAN: I think, your Honour, that leads me to the next point that I wanted to make. In fact, in the applicant’s submission, the time for that began to run on 1 January and it is the applicant’s submission that in fact the determination that your Honour just referred to can be made at any time at all, without any notice to the applicant.
HIS HONOUR: Yes, it may.
MR SHERMAN: And it may well be that that determination has already been made or will be made tomorrow, and it is precisely the point that the applicant will not get an opportunity for the 48 hour notice if 41.11.1 is to invoke.
HIS HONOUR: The point of the new rule, Mr Sherman, is that applications may be dealt with on the papers. It has long been the position in the Court, as reflected, for example, by what Justice McHugh and I said in Muir’s Case (2004) 206 ALR 189 at 191 paragraph [8], that the written submissions are the primary vehicle for persuading the Court that there is a point appropriate for the grant of special leave. Now, the new Rules provide that applications may be dealt with on the papers.
MR SHERMAN: Yes, I am aware of that, your Honour, and I understand what your Honour is saying. Although there is no definition as to what “on the papers” actually means under the Act and at what point in time ‑ ‑ ‑
HIS HONOUR: What it is referring to is the procedure contemplated by Rule 41.11.1 where two Justices may determine an application without listing it, and direct the Registrar to draw up, sign and seal an order. Now, that may be to draw up, sign and seal an order granting leave, granting leave as to part, refusing leave, simply determining the application without oral hearing. That is what the new rule provides. Why should that rule not apply in your case?
MR SHERMAN: The applicant’s submission is that it is not specifically that particular rule that gives the applicant grief. It is the absence of certain links in the rules with regards to procedure which have placed the applicant’s application to a screeching halt. The application cannot proceed as it is now, or evolve from what it is now, until such time as perhaps either an order under 1.0.3.4 is made, replacing or ordering the old Rules to apply, in which case the application will proceed as it would have proceeded if there were no new Rules. Or, alternatively, there may be direction necessary under either Part 6 or Part 40, specifically allowing the applicant to complete the procedural steps, perhaps prior to the two Justices determining whether or not the matter should proceed to a hearing.
HIS HONOUR: In your outline of argument, or in your summons, rather, one of the orders that you seek, Order 2 or Order – well, either of the Orders 2 is to file a supplementary summary of argument.
MR SHERMAN: Yes, your Honour. If I may address your Honour on that. Your Honour may be aware that this case is being – or this application has been held over pending the outcome in or in anticipation of a decision being handed out in Griffith University v Tang. It may well be that further submissions will need to be made in respect of matters that might be raised in that decision by way of example.
Now, the applicant does not specifically seek leave to file a particular document. Because of the applicant’s interpretation of what the status of the applicant’s application is at the moment, it was thought that perhaps leave may be required at this stage for leave to be given in general terms or perhaps after certain conditions – perhaps on the form that your Honour has just granted to Mrs Scott.
HIS HONOUR: That was a 14 day order and if this is related to the judgment in Griffith v Tang, which has not yet been given, a 14 day order would not necessarily be appropriate ‑ ‑ ‑
MR SHERMAN: Will not be ‑ ‑ ‑
HIS HONOUR: Mr Sherman, we are dancing around the issue. The question is, why should the new Rules not apply to your application? A further question that then arises is, if the new Rules are to apply, provision is made by 41.7.4 for the Court or a Justice or the Registrar to grant leave for the filing of supplementary summary of argument. It seems to me at the moment that the only question, since you do not seek immediately to file a supplementary summary, is, why should the new Rules not apply to your case?
MR SHERMAN: Your Honour ‑ ‑ ‑
HIS HONOUR: What is it that takes your case out of the application of the new Rules?
MR SHERMAN: Your Honour, this particular case deals with the issues that are perhaps of some novelty to the Court with respect to issues that perhaps needed to be canvassed in Griffith v Tang but were not, but the ‑ ‑ ‑
HIS HONOUR: Can I just understand this Mr Sherman. Am I right in understanding the present procedural posture of this case to be as follows? There was an application in VCAT which you have brought. La Trobe sought and obtained summary determination of that application adverse to you. You went to the Supreme Court of Victoria, that order was set aside and the matter was remitted to VCAT to hear and determine it again. You then went to the Court of Appeal and the Court of Appeal dismissed your appeal, the current result being that the matter is to go back to VCAT for hearing and determination afresh. Do I understand the present procedural posture of the case?
MR SHERMAN: That is not quite correct, your Honour.
HIS HONOUR: Yes.
MR SHERMAN: What has in fact occurred was the trial judge did not set aside the tribunal’s orders, implying that allowing an appeal means that the orders are being set aside, and the applicant asked the Court of Appeal to complete or to do what the trial judge should have done but did not do, and the Court of ‑ ‑ ‑
HIS HONOUR: The orders of the trial judge were: appeal allowed, proceeding remitted for rehearing and decision by VCAT. Is that the position, and has that rehearing and decision yet happened?
MR SHERMAN: That was the position. As your Honour would be aware, in order to remit a proceeding, orders may need to be set aside, and there are precedents to that effect in the Court of Appeal.
HIS HONOUR: Yes. Mr Sherman, is there anything else you wish to add about why the new Rules should not apply?
MR SHERMAN: If your Honour would allow me, I would reiterate what ‑ ‑ ‑
HIS HONOUR: Do not reiterate anything, Mr Sherman; I heard it the first time. Is there anything fresh you wish to add?
MR SHERMAN: Yes, that is, that it was always intended, when the application was filed with this Court, that the hearing of this application will take place in due course, and it would be perhaps unjust for this application, having been in the wings, so to speak, for three something years, to be determined without the hearing.
HIS HONOUR: Yes. Yes thank you, Mr Sherman. Yes, Mr O’Bryan.
MR O’BRYAN: Your Honour, there is nothing which can usefully be added, it is submitted, to our written submission.
HIS HONOUR: Yes.
MR O’BRYAN: It is submitted that there is no basis whatsoever for the 2005 Rules – 2004 Rules, I am sorry – not applying to this matter, and that they ought to apply and that once that decision is taken, your Honour, the rest of the procedural steps flow as a matter of course under those Rules, which provide adequately for any reasonable or proper step that Mr Sherman wishes to take.
HIS HONOUR: Yes.
MR O’BRYAN: If the Court pleases.
HIS HONOUR: Is there anything you wish to add in reply to what Mr O’Bryan has said, Mr Sherman?
MR SHERMAN: Your Honour, I disagree with counsel’s submission in that respect.
HIS HONOUR: Yes.
MR SHERMAN: And I oppose it.
HIS HONOUR: Yes, thank you.
As long ago as 21 June 2002 the applicant filed an application for special leave to appeal to this Court against orders made by the Court of Appeal of Victoria on 24 May 2002. The Court of Appeal refused the applicant leave to appeal from orders made by Justice Pagone in the Supreme Court of Victoria on 18 April 2002. His Honour had ordered that the present applicant’s appeal to the Supreme Court against the decision of the Victorian Civil and Administrative Tribunal constituted by its member, P. Coldbeck, reasons for which were delivered to the applicant on 8 November 2001, be allowed and the proceeding be remitted to rehearing and decision by the Victorian Civil and Administrative Tribunal, constituted for the rehearing by a member who did not make the original order from which leave to appeal was sought.
The application for special leave to appeal to this Court has proceeded to the point where, on 7 May 2004, the applicant filed an application book. At the same time, that is, on 7 May 2004, he filed what was described as an application book supplement, seeking to add to the papers before the Court.
On 14 January 2005 the applicant issued a summons seeking, amongst other things, an order that the High Court Rules 1952 should apply without modification “to all past, current and future steps in this action”. Subject to that order, the applicant sought an order granting him leave to file a supplementary summary of argument, together with further orders providing for the provision and use of extrinsic material, providing for the provision of authorities and statutory material and providing for the provision of written submissions and/or authorities. Finally, he sought leave for provision and presentation of materials in the form of computer files on compact disk.
In support of his application, the applicant contended that his application for special leave had been instituted and proceeded as far as it had on the basis that it would be heard and determined in accordance with the procedures set out in the High Court Rules 1952 and, in particular, that he would have an opportunity, in accordance with Order 69A rule 11 of those Rules, if the application was listed for hearing, to appear and, subject to Order 69A rule 11(2), present oral argument in support of his application.
As the applicant pointed out in oral argument, rule 1.03.3 of the High Court Rules 2004 provides that these rules govern all proceedings commenced in the Court on or after the effective date – that date being 1 January 2005. Rule 1.03.4 provides that in any proceeding that was commenced before the effective date, these rules govern all steps taken on or after that date unless the Court or a Justice orders that the former Rules should apply with or without modification to that step. It follows that unless an order is made under rule 1.03.4, rule 41.11.1 of the 2004 Rules will apply to the present application. Rule 41.11.1 of the 2004 Rules provides that:
Any two Justices may determine an application without listing it for hearing and direct the Registrar to draw up, sign and seal an order determining the application.
That rule does not oblige the Court to follow that course, but it empowers the Court to do so if, in the opinion of two Justices, it is appropriate to do so.
That rule reflects what has long been the accepted position in the Court, namely, that in applications for special leave the written submissions are the primary vehicle for persuading the Court that there is a point appropriate for the grant of special leave: see, in this respect, Muir v The Queen (2004) 206 ALR 189 at 191 paragraph [8].
No sufficient reason is proffered why the application which Mr Sherman has made should now proceed otherwise than in accordance with the rules of procedure contained in the High Court Rules 2004. In particular, there is no reason advanced which would support the conclusion that rule 41.11.1, if otherwise thought to be appropriate, should not be available for use in his case.
As for the other relief which he seeks in his summons, he informed me in the course of oral argument that the proposal for filing a supplementary summary of argument was a proposal that depended upon the Court’s decision in the matter of Griffith University v Tang, presently standing reserved for judgment. He indicated that there may be things said in Griffith University v Tang that would warrant adding to or varying the summary of argument which he has already filed. The orders for leave to file a supplementary summary of argument being pressed only in that conditional form, it would not be appropriate now to make orders in those terms granting general leave to file supplementary summary of argument. I simply note that such orders granting leave can, in an appropriate case, be made by a Registrar pursuant to rule 41.07.4.
The orders which the applicant seeks concerning the making of provision for the times at which extrinsic materials, authorities, statutory material and further written submissions and authorities should be provided are inapposite. If the matter is entered for oral argument, the time limits for provision of those materials can be deduced. There is no occasion for me to make orders of the kind sought.
Finally, although not mentioned in the course of oral argument, no order should be made granting the applicant leave for provision and for presentation of materials in the form of computer files on compact disk. The materials that are to be submitted to the Court are to be submitted in the ordinary form, not in electronic form. It follows that the application should stand dismissed.
Yes, Mr O’Bryan.
MR O’BRYAN: Your Honour, the respondent seeks the costs of the application.
HIS HONOUR: What would be against making costs in the application?
MR O’BRYAN: Only, it is submitted, your Honour, it would postpone the inevitable, but the application is discrete ‑ ‑ ‑
HIS HONOUR: But it means that we are not having separate taxations of costs, Mr O’Bryan, for which there is some advantage.
MR O’BRYAN: Yes, that is so. That is true, your Honour.
HIS HONOUR: And if Mr Sherman’s application were to succeed, the costs of this application would fall with the appeal that would later be instituted. Were it to fail, it would fall with the costs of the application.
MR O’BRYAN: In those circumstances, it would be preferable then that there be no order those costs be reserved, your Honour, because, even in the unlikely event that the application were successful, we would still wish to debate whether ‑ ‑ ‑
HIS HONOUR: I express no view on the likelihood of success.
MR O’BRYAN: No, no, I do not ask your Honour to, but we would not want the costs of this application to stand or fall with those of the special leave applications, your Honour, because, in our submission, this application ought never, under any circumstances and irrespective of the merits of the special leave, have been made.
HIS HONOUR: Yes. I think on balance it would be better if the costs were costs in the application.
MR O’BRYAN: If the Court pleases.
HIS HONOUR: The summons is dismissed. The costs of the summons will be costs in the application for special leave.
MR O’BRYAN: If the Court pleases.
AT 3.15 PM THE MATTER WAS CONCLUDED
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