South Australia Police & Anor v Lymberopoulos & Anor

[2007] HCATrans 692

[2007] HCATrans 692

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A37 of 2007

B e t w e e n -

SOUTH AUSTRALIA POLICE

First Applicant

THE STATE OF SOUTH AUSTRALIA

Second Applicant

and

JOHN LYMBEROPOULOS

First Respondent

MAGISTRATES’ COURT OF SOUTH AUSTRALIA

Second Respondent

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 16 NOVEMBER 2007, AT 12.03 PM

Copyright in the High Court of Australia

MR C.J. KOURAKIS, QC, (Solicitor-General for the State of South Australia):   If the Court pleases, I appear with my learned friend, MR M.J. WAIT, for the applicants.  (instructed by Crown Solicitor South Australia)

MR S.C. CHURCHES:   If the Court pleases, I appear for the first respondent.  (instructed by Bourne Lawyers)

GLEESON CJ:   Yes, Mr Solicitor.

MR KOURAKIS:   Your Honours, can I deal firstly with the question whether certiorari is available to correct a non‑jurisdictional failure to accord procedural fairness.  That is one of the two special leave questions that the applicants identify.  It is the one that was decided adversely to the applicants.  The Full Court below held that a failure to accord procedural fairness is not a jurisdictional error and to that extent held for the applicants on the second question.

Could I deal firstly with the question that was decided against us.  Your Honours, the Chief Justice dealt with that question from application book page 49, paragraph 43, and in the very next paragraph forms his conclusion and the reasons for the conclusion follow thereafter.  I will return to the reasons in a moment, but I want to take the Court, if I can, to recent authority that is to the opposite effect, that is, to the effect that certiorari is only available for error on the face of the record or jurisdictional error, and then go to much earlier authority to show that that has been the position for a long time.  I will then come back to deal with what appears to be some departure from what, in our submission, ought to be the accepted principle.

GLEESON CJ:   The question is a little more concrete, is it not?  The question is whether certiorari lies to a magistrate who has failed to accord procedural fairness.

MR KOURAKIS:   Yes.  Your Honour draws an important distinction.  This question deals with a failure to accord procedural fairness by an inferior court, not a tribunal.  In the case of a tribunal it is well established that a failure to accord procedural fairness in the absence of any statutory provision to the contrary, if that is constitutionally possible, is a jurisdictional error.  This case raises squarely the question of the consequences of a failure to accord procedural fairness in the case of an inferior court.  That is important as to the jurisdictional question.

The question as to whether certiorari is available to correct a non‑jurisdictional breach of procedural fairness is important and would apply equally to tribunals and courts.  It is just that in the case of tribunals it is not likely to arise as a practical problem for the reasons that I have just outlined, but there is a history and principle which governs the writ itself and, in my submission, it is that principle which confines it to either jurisdictional errors or errors on the face of the record.

Can I take your Honours to the applicants’ booklet of authorities and to tab 2, the decision in McBain (2002) 209 CLR 372. Can I take your Honours to page 413 where in paragraph 88 there is a statement of the principle in the second sentence:

Determining the claim for certiorari does not always determine the underlying rights . . . The determination may show, for example, that the Court had no jurisdiction to make the order because a party was denied natural justice or that the record contains an error of law.

The next page in the extracts is page 470 from McBain.  At paragraph 277, reading down a few lines into that paragraph Justice Hayne said:

The constitutional writs and, save for certiorari to quash for error on the face of the record, all other prerogative and like remedies, are concerned with the former –

that is jurisdiction –

not the latter.

To that extent, your Honours, that passage in Justice Hayne’s judgment reflects the statement of principle oft quoted of Justice Brennan in Attorney‑General v Quin.  That is set out in paragraph 20 of our submissions. 

Can I just take your Honours to the next authority in our booklet in Aala at page 143 of the report.  From the sentence immediately before paragraph 169 it appears that the failure to accord procedural is there equated with a limitation on power by his Honour Justice Hayne.  Paragraph 169 establishes that even more so.  In tab 4 your Honours will see in the passage from Lam at page 25 in paragraph 77 the statement in the judgment of Justices McHugh and Gummow as to the importance of maintaining the distinction for the purposes of the constitutional writs, prohibition and mandamus between jurisdictional error and error within jurisdiction.

HEYDON J:   Mr Solicitor, if Justice Hayne is correct, have we not started with the wrong question?  Do you not have to try and demonstrate that a failure to accord procedural fairness is an error within jurisdiction as distinct from an error beyond jurisdiction?

MR KOURAKIS:   Yes, your Honour, and that is the decision that his Honour the Chief Justice of the Full Court below made in our favour, that is, they held that the failure to accord procedural fairness did not take the Magistrates Court outside its jurisdiction.

HEYDON J:   Is that not inconsistent with, for example, what Justice Hayne said and what Justices Gaudron and Gummow said in Aala’s Case in paragraph 41, which is in the respondents’ bundle?

MR KOURAKIS:   I do not have that in my bundle.  Can I just have a moment to turn that up.

HEYDON J:   204 CLR 101. It is page 14 of the respondents’ bundle.

MR KOURAKIS:   Yes. Their Honours there were concerned with the conferral of judicial power in federal jurisdiction under the Constitution and it may be that it is a concomitant of the conferral of federal judicial power that there are at least some minimum obligations as to procedural fairness, but that does not necessarily apply at a State level, firstly. Secondly, it is a principle that plainly has not been worked out in its application, but it is the case that the requirements of procedural fairness will vary depending on the circumstances. If, for example, that passage suggests that it is not open to the legislature to modify the procedures of a court that depart from some constitutional conception of procedural fairness, then, with respect, it has some considerable difficulty with it.

Similarly, that passage ought to be understood as a passage which does not take into account the power of the Parliament to confer a jurisdiction on a court to authoritatively decide for itself certain issues.  Although it might be the case that but for the legislative authority given to a court to decide issues for itself, the constitutional writs would go.  As I say, that passage and those paragraphs in Aala rather leave open the question of the consequence of the conferral of judicial power on the court carrying with it an authority to conclusively decide those questions.

If it did not, then great practical inconvenience would arise.  That inconvenience is spoken of and warned about by his Honour Justice Dixon in Posner and Parisienne, two other cases in our authorities.  But the effect is plainly that if the error is jurisdictional, then the orders can be disobeyed with much inconvenience.  Problems would arise as to the immunity of judges in those circumstances if it was the case that any breach of procedural fairness inhering a case had the result that the judge exceeded jurisdiction or that the court’s jurisdiction was exceeded.

GLEESON CJ:   On your submission, Mr Solicitor, what was the remedy in this case for the failure to accord procedural fairness?

MR KOURAKIS:   Your Honour, there was no appeal, so there would be no remedy ‑ ‑ ‑

GLEESON CJ:   That is why I asked the question.

MR KOURAKIS:   Unless it could be shown that the failure to accord procedural fairness in fact demonstrates that the court misconceived its jurisdiction and its function under section 14 – and on occasions a denial of procedural fairness may evidence, if you like, just that.  If it shows that, then there is a jurisdictional error in the final sense explained by Craig, what the Court in Craig described as the most subtle and difficult of the jurisdictional errors that a court can commit.  Indeed, that approach is, for example, a possible explanation of this Court’s decision in Annetts.  The Court starts off its judgment in Annetts by stating that prohibition or certiorari was sought on the basis that the Coroner’s Court had misconceived its function.  In Annetts what had in fact happened was that there had been a breach of procedural fairness, but that is ‑ ‑ ‑

GLEESON CJ:   It comes down to this, does it not, that if you have an inferior court from which no appeal lies and the court denies natural justice, there is no remedy?

MR KOURAKIS:   Yes, just as there is no remedy if the court gets the law wrong, even very badly wrong, and the requirement to accord procedural fairness is no more than an obligation to comply with the common law usually – sometimes statute modifies it – with the common law, but a mere error as to the law, a mistake about the law, does not take a court outside its jurisdiction because in the ordinary ‑ ‑ ‑

HEYDON J:   But there would be a remedy.  Certiorari would lie for error of law on the face of the record.

MR KOURAKIS:   Yes, if your Honour pleases, that is so, but errors of law might be committed that do not appear on the face of the record.  A court might misdirect itself as a matter of law as to matters that it can take into consideration.  It might take into account an irrelevant consideration.  It might commit an error of law in many different ways.  That does not take it outside its jurisdiction but its decision can be set aside if the error appears on the face of the record.

Your Honours, the distinction of which I speak, as I say, has a long history.  Can I ask your Honours to go to tab 15 of the materials and the article by Mr Gordon on the observance of law.  Can I ask your Honours then to go over to page 404.  Your Honours will see in the last paragraph Mr Gordon states:

Thus the following procedural miscarriages and varieties of judicial unfairness have been held to leave jurisdiction untouched and to be without remedy at common law unless shown by the record –

Before coming to that paragraph Mr Gordon reviewed the authorities that suggested a mere breach of procedural fairness might lead to an excess of jurisdiction in courts, mostly Irish and colonial authorities.  He, in my respectful submission, makes valid and strong criticisms against them.  Before coming to this paragraph Mr Gordon again, reviewing extensively the long history of cases, showed that there was not strong support for the proposition that certiorari would go for breach of procedural fairness if it was not jurisdictional. 

There then follow after that paragraph examples of what many today would call the most egregious errors and failures to accord procedural fairness; not allowing cross‑examination, not hearing evidence on oath and the sort.  Yet the conclusion was that certiorari would not lie to correct errors made by a court in that respect.  At page 406 Mr Gordon went on:

And the following miscarriages, though provable by evidence extrinsic to the record, since they are error in fact, not in law, make an adjudication voidable –

liable to be set aside on certiorari.  The reference to “error in fact” is not a mistaken reference to error of fact, it refers for most people to a long‑forgotten basis for certiorari on which decisions were quashed for bias.

HEYDON J:   Do you say that a biased court is acting inside jurisdiction?

MR KOURAKIS:   Your Honour, I say two things.  Firstly, it appears from Mr Gordon’s analysis, and indeed the earlier article to which he refers in a footnote there, that bias was usually dealt with by setting aside the order on certiorari because it was error in law, a distinct basis apart from jurisdiction and error on the face of the record.  In my submission, in modern times bias can be seen as jurisdictional and that explains many cases.  It is jurisdictional for this reason.  The judge being a biased or apparently biased judge has no authority to assume or exercise the jurisdiction of the court. 

Where the judge is biased, it is not so much a question of whether or not the court’s jurisdiction has been exceeded.  The point rather is that the biased or apparently biased judge is an usurper and accordingly in no position to exercise the jurisdiction of the court.  For that reason certiorari, and indeed prohibition, will go to either quash or forbid a biased or apparently biased judge from proceeding any further.  The point we make about that, your Honours, is simply this.  All judges take an oath to decide cases according to the law but the fact that they make a mistake in doing so does not mean that the court over which they preside has exceeded its jurisdiction.  Those two questions are quite distinct.

Can I just take your Honours to his Honour Justice Dixon’s judgments in Parisienne v Whyte and Posner.  Firstly, Parisienne v Whyte is at tab 6.  At page 389 your Honours will see in that paragraph that his Honour Justice Dixon refers to the tendency to regard an inferior court as exceeding its jurisdiction when it does not conform to the principles of justice, including procedural fairness.  His Honour Justice Dixon says that it is a tendency that has been checked and continually checked.  Then at page 391 in the paragraph commencing “It cannot be denied”, his Honour Justice Dixon says that it ought to be the presumption that a court does not exceed its jurisdiction if it has not in fact complied with certain procedural preconditions.

Your Honours, turning to tab 7, in Posner, this was a case where a maintenance order was made, although the defendant had never been served, made in Western Australia and forced in Victoria, a very obvious breach of procedural fairness.  Yet at page 480 in the paragraph starting at about the middle of the page, his Honour Justice Dixon, in a case which, as I say, was an obvious failure to accord procedural fairness case, refers to certiorari going:

for error appearing on the face of the record whether going to jurisdiction or not; and for certain kinds of error though not so appearing –

and he too refers to that now‑forgotten basis for certiorari of error in fact, but no suggestion that certiorari would go to quash simply because there had been plainly a failure to accord procedural fairness.  Again, your Honours, at page 483, the last of the extracted pages, his Honour Justice Dixon warns about the danger of adopting an approach which would see a court exceed its jurisdiction merely for a procedural defect.

Your Honours, in our respectful submission, the consideration of this question by Mr Wade in the article at tab 14 supports our analysis.  In particular, if I can take your Honours to page 98, at the bottom of the page his Honour says:

The conclusion to be drawn, therefore, is that the ultra vires rule is the comprehensive principle upon which all judicial control of public authorities is founded . . . Only occasionally do the courts expressly state this cardinal rule.

He refers to the common approach of simply not allowing evidence to show anything outside the record.  That passage supports the proposition that certiorari goes only for jurisdictional error unless it is on the record.

Your Honours, the decision made in our favour, that a failure to accord procedural fairness is not jurisdictional, is perhaps as controversial as the determination that was made against us.  In that respect there is the inconsistency between that finding of the Full Court below and the passages that your Honour Justice Heydon took me to, although in the federal constitutional aspect.  For that reason too, these questions being interrelated, this case, in our submission, is an appropriate vehicle in which to resolve some longstanding issues that to date have only been approached by way of obiter in cases more usually dealing with tribunals.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Solicitor.  We do not need to hear you, Dr Churches.

We are of the view that there are insufficient prospects of disturbing the ultimate outcome in the Full Court of the Supreme Court of South Australia in this matter.  For that reason special leave to appeal should be refused.  Is there any question of costs?

MR CHURCHES:   We do seek costs, your Honour.

GLEESON CJ:   Do you resist that, Mr Solicitor?

MR KOURAKIS:   No, your Honours.

GLEESON CJ:   The application is dismissed with costs.  We will adjourn for a short time to reconstitute.

AT 12.27 PM THE MATTER WAS CONCLUDED