Strachan v Gravews

[1998] HCATrans 293

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H5 of 1998

B e t w e e n -

DAVID CAMPBELL STRACHAN

Applicant

and

CAROLINE MAY GRAVES

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 13 AUGUST 1998, AT 2.21 PM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear for the applicant. (instructed by Butler McIntyre & Butler)

MR D.J. BUGG, QC:   If the Court pleases, I appear with my learned friend, MR F.C. NEASEY, for the respondent. (instructed by Director of Public Prosecutions (Hobart))

GLEESON CJ:   Mr Wendler.

MR WENDLER:   Yes, if the Court pleases.  Before I open the application for leave to appeal, in the application book at page 84 there is contained what might be described as the notice pursuant to section 78B of the Judiciary Act.  There is no affidavit in the application book concerning that notice.  However, by virtue of an instruction from the Registry, it was not required that the affidavit be included.  However, there is an affidavit on file.  I can indicate to your Honours I have a copy of it and that ‑ ‑ ‑ 

GUMMOW J:   What does it show?

MR WENDLER:   It sets out that the notice was issued to all Attorneys‑General advising them of an issue involving the Constitution or its interpretation. The affidavit sets out that there were responses from all Attorneys-General throughout the Commonwealth indicating that they did not wish to intervene and sought further instruction if the application for special leave to appeal was allowed. That is the legal effect of it.

GLEESON CJ:   The focal point of this application, as I understand it, is a refusal of the Full Court of the Supreme Court of Tasmania to allow an amendment to a notice of appeal.

MR WENDLER:   That is right; seeking to raise an issue involving the Commonwealth of Australia Constitution Act.  Incidentally, it was a majority holding by the Full Court of the Supreme Court of South Australia, dismissing an application to amend the notice of appeal.  Justice Slicer was the dissenting judge in the coram.  What occurred essentially was that on the day of the appeal an application was made amending it to raise this Constitutional point for the first time, it not having been raised in any notice prior; had not indeed been raised before the judge from whom the appeal came.

GLEESON CJ:   And, as I understand it, there having been a background of conduct on the part of your client in relation to the prosecution of the appeal, that was regarded by the court as relevant.

MR WENDLER:   There was, but there was also a background in relation to the prosecuting authorities.  There was delay on all sides on the history of the prosecution, but the end result was, he was attacking the constitutionality of the law, which retrospectively validated the regulation which sent him to prison.

GLEESON CJ: Well, he was attacking on additional ground; the Constitution.....that law. He had attacked it on a number of grounds already.

MR WENDLER:   That is right, yes, but he withdrew an earlier constitutional ground, if you like, which did not involve the Commonwealth of Australia Constitution Act, involved the Tasmanian Constitution Act, and that was withdrawn and was attempted to be replaced with this added ground relying on the decision of this Court in Kable v The Director of Public Prosecutions for New South Wales ‑ ‑ ‑ 

GUMMOW J:   Well, you have to meet what is said at page 97 of the application book, paragraphs 12 to 15, which, on the face of it, looks fairly forceful.  If I can put it to you another way:  if this had all entirely been in the Commonwealth’s sphere, recent decisions of this Court like Nicholas v The Queen would suggest that there was no Chapter III problem in a Federal Court.  How then can it rise to a Kable problem?

MR WENDLER:   If I can just put it as briefly as I am able.  The argument is essentially this, that the legal effect of the Tasmanian law, which sought to retrospectively validate a regulation, the statutory language ‑ ‑ ‑ 

GUMMOW J:   It depends what you mean by “retrospectively”, which is a slippery word.

MR WENDLER:   I will read it out.  In the book in which is the compilation of the authorities, at page 43 can be found the Fisheries Amendment Act, No 99 of 1995, by section 5 of the amending Act, there is the following:

Any regulations made under the Principal Act before the commencement of this Act relating to prohibiting or restricting the possession of fish, as defined by the Principal Act, subject to any condition or requirement to possess, complete, maintain and provide any records, returns or documents are valid and always have been valid.

Now that Act was passed for the sole purpose of targeting a Chapter III court in Graham v Davies, where the Supreme Court of Tasmania ‑ ‑ ‑ 

GLEESON CJ:   I though part of the purpose was to target abalone fishers?

MR WENDLER:   Well the regulations certainly targeted delinquent abalone fishers or abalone fishing, but ‑ ‑ ‑ 

GUMMOW J:   Well, any attempt to reprosecute your client, it is said, would have been statute barred, and there was no change to that statute.

MR WENDLER:   Well, not necessarily.  It would have been open as a result of this particular Act to appeal the decision in Graham v Davies.  In Graham v Davies earlier there had been a holding by Justice Zeeman that the regulation under which this applicant was prosecuted and sent to gaol was valid. So what occurred after that was the passing of this Act reviving the regulation. Now, what the applicant says is, that is an impermissible interference with Chapter III of the Constitution to the extent that it makes the decision of the Supreme Court of Tasmania, in the earlier Graham v Davies, non-binding. It is not a final decision. So, if it is not binding, it does not have the characteristic of an exercise of judicial power and therefore affects the integrity of Chapter III of the Constitution. As I understand it, the Kable ‑ ‑ ‑ 

GUMMOW J:   There is no reference in these application papers to the decision of the Court in Nicholas v The Queen.

MR WENDLER:   No, this applicant relies entirely on the decision in Kable and to the extent ‑ ‑ ‑ 

GUMMOW J:   Well, it might be, but it is followed by Nicholas v The Queen, which is a decision earlier this year, which specifically deals with these questions of retrospective, as you call it, legislation, dealing with litigation.

MR WENDLER:   Yes, but it is the way it deals with it ‑ ‑ ‑ 

GUMMOW J:   And it upheld the validity of the Commonwealth Act.

MR WENDLER:   In that case I did not understand that there was an attack on the finality of an order of a superior court or a Chapter III court, and that is what this legislation does; it sets up the Parliament of the State of Tasmania as a de facto Court of Appeal. So, to the extent that the Supreme Courts of the States are identified as being one of the categories of courts in Chapter III of the Constitution and therefore have a constitutional status because appeals from them are to the High Court and pursuant to a mandated constitutional right of appeal in section 73 of the Constitution, it is inconsistent, in my respectful submission, with the integrity of Chapter III of the Constitution for the Parliament of the State to be legislatively competent to pass laws which attack the real nature of the exercise of judicial power, in this case where the holding of the Supreme Court of Tasmania can be legally assessed as not being - - -

GUMMOW J:   Has your client been reprosecuted?  Was Mr Graham reprosecuted?

MR WENDLER:   No, he is in gaol, and he has sought to challenge the legality of his custody, because he sought to challenge the Act that underpinned the regulation, which he had been found to have breached and, as a consequence, was sent to gaol for, I think, six months.  So that is the nature of the application.

GUMMOW J:   But your client is caught simply because he is an offending abalone operative.

MR WENDLER:   Well, yes, that is right, that is the reality of it, obviously.

GLEESON CJ:   Well that shows that the sole target is not the Supreme Court of Tasmania.

MR WENDLER:   Well, it is to the extent that he sought to attack the legality of the law which revived the invalid regulation. So, that is the nature of the application. It is underpinned by a second limb or a second submission that the Full Court and the Supreme Court of Tasmania should not have shut - the majority should not have shut him out from agitating that point. It is my respectful submission, if it is reasonably arguable that an issue involving the Constitution can be raised, especially when it affects the liberty of the citizen, he should be entitled to proceed and to agitate that point. He should not be shut out from the process ‑ ‑ ‑

GUMMOW J:   It depends how worthwhile the point is.

MR WENDLER:   Well, of course, that affects it, but, nevertheless, in my respectful submission, it was arguable that this was a situation in which the decision in Kable had some relevance and it was arguable, concerning the ambit to the operation of that particular decision and its legal affect on the circumstances of this particular applicant.  That is the nature of the application, if the Court pleases.

GLEESON CJ:   Thank you, Mr Wendler. We do not need to hear Mr Bugg. 

The Court is of the view that leave to appeal should be refused for the reason that there are not sufficient prospects of success to warrant the grant of leave.  Is there a question of costs, Mr Bugg.

MR BUGG:   Yes there is, your Honour.  I foreshadowed that in the outline of submissions.  This comes to this Court by way of an appeal from the Full Court sitting in the civil jurisdiction in Tasmania.  The process of the appellate review of Magistrates’ decisions is first to a single judge in the civil jurisdiction.  The applicant had an order for costs awarded against him in relation to that unsuccessful appeal.  There was also an order for costs against him in relation to the unsuccessful appeal before the Full Court and, as I foreshadow, I seek an order for costs in relation to this matter as well, if your Honours please.

GLEESON CJ:   Mr Wendler.

MR WENDLER:   Would your Honour hear me on costs?  No order should be made for costs.  Just because procedurally the matter has come up through a civil framework, it is, in essence, a criminal matter.  There was a criminal prosecution.  At the end of it he was sentenced to a period of imprisonment.  Indeed, earlier this year, by way of an interlocutory application for bail before his Honour Justice Hayne, which was refused, the Director sought costs in relation to that application and his Honour rejected that on the basis that - even though it had come up through the civil process, and it was the same submission made to Justice Hayne, as my friend just made, that, in the circumstances, because there had been a custody order made, it would be oppressive at the end of the day to penalise him further, as it were, with an order for costs and, in my respectful submission, because, in essence, it is really a criminal matter, no order should be made in the circumstances.

GLEESON CJ:   The applicant is to pay the respondent’s costs of the application.  We will adjourn to reconstitute.

AT 2.33 PM THE MATTER WAS CONCLUDED