Theophanous v Commonwealth of Australia

[2011] HCATrans 104

[2011] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M22 of 2005

B e t w e e n -

ANDREW CHARLES THEOPHANOUS

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Summons

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 13 APRIL 2011, AT 9.28 AM

Copyright in the High Court of Australia

MR A.C. THEOPHANOUS appeared in person.

MR C.L. RAWSON:   May it please the Court, I appear for the defendant in the proceeding who is the moving party of the motion that is before the Court this morning.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes, Mr Rawson.

MR RAWSON:   Your Honour, the defendant has filed a summons dated 25 March 2011 which is supported by an affidavit of Emily Jane Nance, affirmed also on 25 March 2011.

HER HONOUR:   Yes, I have read that.

MR RAWSON:   Yes, your Honour.  If it helps, I have prepared a chronology which I thought I might speak on this morning, if it is convenient to hand that up?

HER HONOUR:   That would be helpful.  Have you a copy for Mr Theophanous?

MR RAWSON:   Yes, I have provided a copy for Dr Theophanous.

HER HONOUR:   Thank you.  Yes, Mr Theophanous.

MR THEOPHANOUS:   Your Honour, before he speaks can I just say that the presentation of chronologies that leave out pertinent facts is not very helpful.

HER HONOUR:   I will give you an opportunity to advise me of any matter you think is important which has been left out.

MR THEOPHANOUS:   Perhaps I should indicate, your Honour.

HER HONOUR:   I will just tell you, Mr Rawson, will address me first because it is his summons and then you will have an opportunity to respond.

MR THEOPHANOUS:   I just wanted to indicate that I am not happy with his chronology.

HER HONOUR:   Thank you, Mr Theophanous.  I have noted that. 

MR RAWSON: Your Honour, this morning’s summons is brought pursuant to rule 4.03.2 of the High Court Rules and seeks an order that has the effect of permitting the defendant to take a further step in the proceeding, namely to file in the High Court Registry and serve on the plaintiff a bill of costs in taxable form. We need the leave of the Court to do that, your Honour.

HER HONOUR:   Because of the effluxion of three years.

MR RAWSON:   Yes.  In fact, it is considerably more than three years, on one view, your Honour.

HER HONOUR:   Yes.

MR RAWSON:   The last step in the proceeding was the service by the defendant on the plaintiff of a bill of costs in taxable form on 19 December 2006.  That was a bill of costs that was served on the basis of a costs order made by the Court on 11 May 2006.

HER HONOUR:   Yes.

MR RAWSON:   It is perhaps convenient just to go back a couple of steps further than that to outline the way the matter has come before the Court because this proceeding is not the only proceeding involving Dr Theophanous and related matters but, nevertheless, the cost order is an order that was made in this proceeding and it is the events of this proceeding that are relevant, principally to this morning’s application.  The writ of summons which commenced this proceeding was filed on 15 March 2005 and it was a writ of summons which sought to challenge the validity of Part 2 of the Superannuation Benefits Act.

HER HONOUR:   Yes.  I am familiar with the course of the proceedings, having participated in the High Court in the substantive hearing.

MR RAWSON:   Yes, of course, your Honour.  That led to a case stated in due course and the orders of the Court disposing of the case stated on 11 May 2006 included the order for requiring the plaintiff to pay the costs of the case stated.

HER HONOUR:   Yes.  That was answered by the Full Court, adversely, to Mr Theophanous?

MR RAWSON:   Yes, your Honour.  It was following on from that the defendant prepared and filed a bill of costs in taxable form and that was served on the plaintiff under cover of a letter dated 19 December 2006.  That letter and taxable bill is at exhibit EJN-2 to the affidavit of Emily Jane Nance.  Shortly thereafter on 29 January 2007, so a little over one month later, the plaintiff’s then solicitor wrote to the Australian Government Solicitor requesting that the defendant not pursue the costs order until the outcome of the defendant’s intended Petition of Mercy was determined.

Now, that was a reference, as we understand it, to a petition which the plaintiff intended, and as we still understand today, perhaps still intends to lodge and it was on the basis that the plaintiff intended to lodge a Petition of Mercy in relation to three subsisting convictions that he sought the defendant’s forbearance from taking any steps, or at least any further steps, to proceed with the bill of costs.

HER HONOUR:   There have been no adjournments?  There has just been correspondence passing as a result of which there has been forbearance in respect of the taxed bill of costs?

MR RAWSON:   That is so, your Honour, yes.  Indeed, in respect of that request, the Australian Government Solicitor wrote back to Dr Theophanous on 6 June 2007 and agreed that the defendant would take no action to tax the costs of the stated case provided that the plaintiff made a petition for mercy within a reasonable period of time.

HER HONOUR:   No petition has been made, but is it your position now that you are still offering an assurance that you would not necessarily seek to enforce the costs order but your case is that it is appropriate to be given leave to take the further step in the proceedings?  Is that still the position?

MR RAWSON:   That is so, your Honour.  Yes.  We have put the plaintiff on notice in writing ‑ ‑ ‑

HER HONOUR:   Of that assurance?

MR RAWSON:   ‑ ‑ ‑ that we do not necessarily seek to take any steps to enforce the costs order at this stage ‑ ‑ ‑

HER HONOUR:   To enforce the costs order, yes.

MR RAWSON:   ‑ ‑ ‑ but that we do wish to take the further step of proceeding to have a bill of costs filed and served and the inevitable consequence would be that a liquidated sum would at least emerge from the taxation process.

HER HONOUR:   Yes.

MR RAWSON:   If your Honour has read the affidavit your Honour will have seen the chain of correspondence between 2007 and 2011.

HER HONOUR:   Yes, I have seen that, thank you, Mr Rawson.

MR RAWSON:   Perhaps, unless your Honour has any questions about that, I will not take you to it in detail.

HER HONOUR:   No, it is not necessary to do so.

MR RAWSON:   Yes.  The submission for the defendant is simply that the delay in taking any further steps in relation to the bill of costs which was provided to Dr Theophanous in December 2006 is a delay that occurred at the request of the plaintiff.  The plaintiff has always been on notice that the basis of that forbearance was the expectation that the plaintiff would shortly, or at least within a reasonable time, file a Petition of Mercy.  There has always been an express statement by the defendant to the plaintiff that the defendant reserves its rights to file a bill of costs and seek to have it taxed if the defendant does not file a Petition of Mercy within a reasonable period of time and the plaintiff is on proper notice of the ‑ ‑ ‑

HER HONOUR:   You meant the plaintiff ‑ ‑ ‑

MR RAWSON:   The plaintiff is on proper notice - thank you, your Honour.

HER HONOUR:   And you meant the plaintiff file a Petition of Mercy?

MR RAWSON:   Yes, your Honour.

HER HONOUR:   The respondent to the summonses, yes.

MR RAWSON:   That is so, yes.  On the basis of those matters, your Honour, we seek the leave set out in the summons to file and serve the bill of costs in taxable form.

HER HONOUR:   Yes, thank you.  Yes, Mr Theophanous.

MR THEOPHANOUS:   Dr Theophanous, your Honour.  The presentation up to this point misses nearly all the germane matters in relation to this issue.  It suggests that I have failed to develop a Petition of Mercy for reasons of my own rather than the fact that actions of the Commonwealth and actions of other people involved in this matter were responsible for the fact that I have not been able to finalise a Petition of Mercy.  I did present way back in 2007 a document of 359 pages entitled “Draft matters to be included in the Petition of Mercy” but as you will see from the chronology supplied here – and it is interesting that we have reference on 28.07.06:

Morrish J dismisses the conspiracy charge against the Plaintiff –

no mention, your Honour, of the fact that Judge Morrish presented a 102‑page judgment in which she totally condemned the actions of the National Crime Authority in relation to my case..   

Not only that, it was on the basis of that that a submission was made – two submissions were made.  Firstly, a submission was made for a Petition of Mercy, for time for a Petition of Mercy to be taken out.  Secondly, application was made for an inquiry – a judicial inquiry into the findings of her Honour Judge Morrish, your Honour.  What has happened is that because of the fact that the government failed to establish a judicial inquiry but instead sent the matter for inquiry to Mr Moss, the Australian Integrity Commissioner – ACLEI Commissioner – who then took two and a half years to determine not to actually hold an inquiry but to determine that in his opinion her Honour Judge Morrish’s findings were mistaken, effectively, and that no inquiry was warranted.

Now, there was a clear understanding with the government which I will now present to you documentation on the points I am making, your Honour.  There was a clear understanding with the government that I could not be expected to file the Petition of Mercy until, at the very least, a report appeared from the ACLEI Commissioner.  Notwithstanding that, and having made a solemn commitment as – and the commitment was not actually read to you, your Honour – but having made a solemn commitment to wait until the Petition of Mercy the Australian Government Solicitor on 20 August, only less than three weeks after we received the report of Mr Moss, began the proceedings which have culminated to today.

Your Honour, no one could have been expected to finish a Petition of Mercy within three weeks of receiving Mr Moss’ report.  In any event, other events occurred.  My wife, Dr Eriksson, wrote to Minister Brendan O’Connor and pointed out that it was absolutely incredible that we had been waiting for two and a half years for an investigation and no investigation was going to be held, contrary to assurances given to us, and asked the Minister to hold a judicial inquiry.

Your Honour, in his report, which we have not made public, Mr Moss stated at one point that it is a shame that the findings of her Honour, which he disagrees with, about the National Crime Authority and its behaviour that these findings could not be tested in a court, in other words, that the matter could not be appealed.  In fact, the matter could have been appealed, your Honour, but the DPP decided not to appeal.  In other words, the findings of her Honour stand.  They were not appealed, and yet there has been no judicial inquiry.

Now, your Honour, the Minister was asked to hold a judicial inquiry.  We were told that the Minister was considering this matter.  I refer you, your Honour, to the government’s actual position on these matters as stated in another court.  I refer to the document from Ms Nance, the final document, document EJN-10 – and in that document which contains a statement – EJN-10, your Honour ‑ if I can refer you to that document you will see attached is an affidavit and in that affidavit, which was an affidavit issued on 11 November 2010 by the Commonwealth when they were seeking an extension of the restraining order in relation to the superannuation matter, an extension which I did not oppose, your Honour, but in that statement clause 4b says as follows:

That on 20th September 2010 the wife of Dr Theophanous requested by letter that a judicial inquiry be conducted and that AGD staff are in the process of preparing a submission to the Attorney General on the issues raised.  It is understood that the petition of mercy foreshadowed in paragraph 3b has not yet been lodged and may await the outcome of the request for judicial inquiry.

That was what the Commonwealth said, “may await the outcome of a request for a judicial inquiry”.  It is a Petition of Mercy, your Honour.  It is impossible for me to finalise a Petition of Mercy without such an inquiry or information that would come out of such an inquiry.  I have, as already indicated to you, your Honour, prepared more than 300 pages of such a submission for a Petition of Mercy but I cannot finalise it.  This is not an issue that is my fault, your Honour.  This has to do with the actions of the government, but the reason I point out this paragraph is the government itself says in this paragraph that it “may await the outcome of the request for judicial inquiry”.

We do not have the outcome from the Minister, your Honour.  Instead what has happened is the matter has been shifted from Minister Brendan O’Connor to Minister Robert McClelland who is now considering the matter.  We wrote to Ms Nance saying, “Look, under your commitment you have made a commitment to wait for this matter until the Petition of Mercy.  I am not able to finalise the Petition of Mercy”.  The government itself has said in this statement, your Honour, that the matter may await decision of judicial inquiry and yet we are here presented today, when they have waited all this time, with a claim that suddenly it is necessary to do this exercise today.

HER HONOUR:   It is a limited step and I would be assisted if you gave me your response to the fact that there has been an assurance given and repeated in Court to me today that the defendant would not necessarily seek to enforce the costs order and my understanding of that is that that attitude is taken because of the possible Petition of Mercy which would seem to recognise that a Petition of Mercy is complicated and time consuming, as you have submitted to me.

MR THEOPHANOUS:   Your Honour – I am sorry, the gentleman – I have forgotten his name?

HER HONOUR:   Mr Rawson.

MR THEOPHANOUS:   Mr Rawson has used the words “not necessarily”.  Not necessarily does not mean a guarantee that they will not proceed against me, your Honour.  At the moment – I have come here to represent myself.  I had to come from Sydney because I am now temporarily living in Sydney because my mother‑in‑law is ill and we brought that to their attention but I am happy to appear before you, your Honour, but the fact of the matter is I have to come from Sydney.  I have to represent myself because I do not have any money, I am poor, and I do not want to be put into the position of a summons to pay this money before all these matters are rectified.  Now, your Honour, there is going to be a number of steps here.  First of all, the Minister has to decide whether there is going to be a judicial inquiry or not.  I cannot act until the Minister makes that decision.

HER HONOUR:   You have the benefit of an assurance repeated in Court that the Commonwealth would not necessarily seek to enforce the costs order because of the very reasons you advance, so you have the benefit of that assurance.

MR THEOPHANOUS:   Could I ask for a clarification of your Honour of the meaning of the word “necessarily” in this matter?  Does that guarantee me that they will not?

HER HONOUR:   That is an assurance given by Mr Rawson which is something to which you could refer in any subsequent dealings with the issue of the costs of this proceeding and the Petition of Mercy issue.

MR THEOPHANOUS:   Your Honour, I ask that you ask Mr Rawson whether he is prepared to guarantee that this matter will not proceed to that next step until the Petition of Mercy is finalised.

HER HONOUR:   Is that all you wish to say?

MR THEOPHANOUS:   No.

HER HONOUR:   No?

MR THEOPHANOUS:   Otherwise, your Honour, if I do not get that guarantee I wish to present to you a further argument as to why the matter should be adjourned today.

HER HONOUR:   All right.  I think you can give that argument to me now.

MR THEOPHANOUS:   Okay, your Honour.  I am not sure, your Honour, how much argument I need to present to you in order to explain why it is that I do not want the costs of this matter proceeded with today because it implies that in the final upshot of what may happen in this matter that the Commonwealth would in fact – once this order – perhaps I could ask for a clarification, your Honour.  Once this taxation order takes place would I be able to apply for the Commonwealth to remove the order if in fact the Petition of Mercy is successful?

HER HONOUR:   You can make any application you wish, Mr Theophanous.

MR THEOPHANOUS:   Because, your Honour, just to ‑ ‑ ‑

HER HONOUR:   It is not for me to predict the terms in which you will make an application or the prospects of its success.

MR THEOPHANOUS:   I see.  Then, I will just make a couple of points.  My preferred position – shall I put it that way – is that this matter be deferred – be adjourned until the Minister makes a determination on the question of a judicial inquiry and until an application is made of a Petition of Mercy and considered and I say this because this is the commitment which the Commonwealth made in relation to linking the public inquiry and the Petition of Mercy and in the first instance the commitment that was made in 2007 was that the Commonwealth would wait before taxing this order until the Petition of Mercy process was finalised.

That was what they committed themselves to, your Honour.  As I have explained, the reasons for the delays are not my fault, therefore, they should be asked to stick to their commitment.  Furthermore, as I have pointed out, in the affidavit in a different court the government has conceded that the Petition of Mercy may await this decision on the judicial inquiry.  On the other hand, Ms Nance, in her correspondence, has insisted that enough time has passed for the Petition of Mercy and therefore the case that they brought to you as to why they should proceed today is in fact based on false premises, it is based on the assumption that the Petition of Mercy should have been presented by today when it was not possible to do so for the reasons I have explained.

Now, your Honour, when in 2007 the Australian Government Solicitor made a decision to delay the matter in relation to the costs issue he did so partly because prior to that time the Minister had made a decision to suspend the application of the superannuation order against me.  The Minister made that decision, your Honour, and in making that decision he recognised the real issues that had arisen as a consequence of the findings of her Honour Judge Morrish.  Those findings, your Honour, were set out in a letter to the Prime Minister, John Howard, on 4 June 2007 from my wife and my QC, Mr Chris Dane, in which all the references to the issues raised by her Honour, the very serious issues raised by her Honour concerning this case which reflect on the other three matters, the other three convictions, your Honour, and which is the basis on which the Petition of Mercy is going to be made -  I have a copy of that letter to the Prime Minister if you are interested, your Honour.

HER HONOUR:   Do you wish me to read it?

MR THEOPHANOUS:   I would like to ‑ ‑ ‑

HER HONOUR:   You may read an extract from it, if you wish?

MR THEOPHANOUS:   Yes, your Honour.  Thank you.  That may be better:

In her Judgment Her Honour reached the following critical conclusions in relation to the behaviour of the former NCA and its consequences:

I have referred to the new facts and documents - these matters were not known at committal, trial and appeal.

I consider that high public policy demands condemnation of the practices that were adopted by the investigating operatives here.

That conduct seriously calls into question the integrity of all previous proceedings.

Your Honour, that is a very serious judgment by her Honour – “seriously calls into question the integrity of all previous proceedings”.  Her Honour found, as the letter states, that – and I will read this section:

We submit that the Pretrial proceedings and Her Honour’s Judgment shows that persons from the former NCA are most probably guilty of perjury.  As the Petition states:  Her Honour refers to the serious issues of perjury arising from some of the documents which were forced to be revealed –

by her Honour, and this is a quote from her Honour –

“Further, the documents reveal the real potential that a number of witnesses knowingly gave false evidence at the trial before His Honour Judge Crossley or, at the very least, gave misleading answers…” 

“All of this in turn leads to serious questions concerning the role played by the NCA.”

I might also refer because I do not want to – I will give you the whole letter, your Honour, but there is a section in which it is made clear that these findings of her Honour are very relevant to the issues of the three outstanding charges on which the superannuation order is based and I might say which were put in documents that went before the High Court - your Honour and other Judges of the High Court in relation to this matter. 

One of the submissions in my letter in 2007 to the AGS was that some of the matters that had been referred to, some of the material given in the matter before the High Court, no longer stands, your Honour, because the decisions of Judge Morrish which occurred subsequent to the High Court decision show that there were misleading and false statements in the submission to the High Court itself.  In clause 7, it says:

Prime Minister, there are very serious implications of all this in relation to the other three [major] charges of which Dr Theophanous was convicted and about which he has always maintained his innocence of any crime.  We submit that a full consideration of the arguments 1 to 5 above demonstrates that there was clearly a mistrial on these charges.  As her Honour said -

and we quote again the comment about the previous proceedings -

In the light of the revelations at the Pretrial and some new evidence which has arisen, Dr Theophanous’ lawyer will be making a PETITION OF MERCY to the Governor General to have these three minor convictions quashed or at least a Retrial.  The issues raised above concerning the misbehaviour of the NCA will be very important in that Petition of Mercy.

However, the Petition of Mercy submission by Dr Theophanous is difficult to complete because of the fact that relevant information concerning these charges is also hidden in the files of the NCA.  True it is that the new evidence which was forced to be revealed by Her Honour Judge Morrish and which has been hidden for 7 years does not only relate to the dismissed Conspiracy charge; some of it constitutes new evidence in relation to the other three convictions.

Nevertheless there is still very significant information concerning the actions of the NCA, especially in relation to Charges 5 and 6, which is missing.  Her Honour was very aware of this issue when she said –

and the letter quotes her Honour –

Well, I think it is; and I think - I feel a sense of outrage, I have to tell you, in case it’s not apparent.  I feel a sense of outrage that we get to a re‑trial and I don’t know how many subpoenas –

and she referred to the many subpoenas that we had put in –

and this is no criticism of you, I want you to understand that - that this material emerges.

She is referring to the last minute material, your Honour –

I think it could have played a great role in the mind of His Honour Judge Crossley.  I think the fact that the Court of Appeal was denied this obviously important information.  I think that’s outrageous, and now, for the first time, to get this so late in the piece and then try and explain it away as if it’s not important and doesn’t matter, and I still don’t have the full picture.  I think I’m only scratching the surface.

Your Honour, it was not only the Supreme Court and Judge Crossley and the trial that was misled, it was the DPP, and I submit and I submitted in the letter, which I have referred to earlier, in 2007 to the Australian Government Solicitor that it was also the High Court which was partially misled.  I do not say that the ruling on the constitutional issue was wrong, your Honour.  What I say is that had I been aware of all these other matters then the presentation would have been quite different to the High Court.  Not only that, I believe that the findings of their Honours in relation to the matters would have been quite different and therefore it is quite conceivable even that the order against me may not have been taken out.

So, in these circumstances, it is quite unjust to try to push this matter further before, as I said, a judicial inquiry question is settled and I have the opportunity to finalise the Petition of Mercy.  I table this letter to the Prime Minister, your Honour.

HER HONOUR:   Yes.  Have you shown it to Mr Rawson?  Is there any objection to that being received by me?

MR RAWSON:   Your Honour, I have no objections to it being tabled.  I have not been handed a copy of it.  It is quite possible we have it somewhere.  I might ask, in the circumstances, that a copy be made available for our records just in case we do not have it.

HER HONOUR:   Yes.

MR THEOPHANOUS:   Yes.

MR RAWSON:   I did want to say something about it but I will not be very long on it.

HER HONOUR:   Yes.

MR THEOPHANOUS:   I will have another – I think I may have another copy somewhere, your Honour.

HER HONOUR:   When you say no objections to it being tabled, do you mean marked for identification?

MR RAWSON:   Or tendered, if that is what Dr Theophanous wishes to do.

HER HONOUR:   If Dr Theophanous wishes to, yes.  It would be possible if you have only one copy for me to read it and then hand it back.

MR RAWSON:   I do not need it within the circumference of these proceedings.

MR THEOPHANOUS:   I think, your Honour – I thought I did have a second copy.

HER HONOUR:   You have explained the contents to me, Dr Theophanous, so ‑ ‑ ‑

MR THEOPHANOUS:   That is not the full contents but that is the gist of the issues that I wanted to raise with you, your Honour, that in fact the matters are extremely serious here and they concern matters of fundamental justice and therefore that is why I have submitted to you that we should adjourn these proceedings until these matters are finalised, but I will be interested in what answer I get about any assurances from – I have found the copy, your Honour.  There is a copy, so we can a give a copy to both - thank you, your Honour.

HER HONOUR:   Thank you.  I will mark that exhibit A.

EXHIBIT A: Letter from Dr Eriksson to Prime Minister John Howard dated 4 June 2007.

HER HONOUR:   Yes.  I have read exhibit A, thank you, Dr Theophanous.

MR THEOPHANOUS:   Thank you.

HER HONOUR:   Have you completed your submissions?

MR THEOPHANOUS:   Your Honour, I wish to submit that there should be an adjournment, but if it is your Honour’s desire that there not be an adjournment then the assurance - I would like to have a guarantee from the Commonwealth that the matter will not be enforced until such time as the Minister makes a decision on the public inquiry and I have had the opportunity of presenting the Petition of Mercy and I would like to hear what Mr Rawson has to say about that.  After we hear what he has to say I may wish to address you further.

HER HONOUR:   Yes, Mr Rawson.

MR RAWSON:   Thank you, your Honour.  Four short points, if I may, by way of reply. First, again as to Dr Theophanous I think I can say that the Commonwealth accepts that the Commonwealth had in fact acquiesced to the state of affairs of Dr Theophanous not filing a Petition of Mercy while his complaint was before ACLEI.  The Commonwealth had acquiesced to that state of affairs.  However, I think it puts the matter too highly, as I think Dr Theophanous did, to say that the Commonwealth had an agreement with him that he need not file the petition until ACLEI had conducted an investigation and in any event, of course, the ACLEI consideration of the matter ceased in July of last year.

The second matter relates to the affidavit of Ms Green which is part of exhibit EJN-10.  That affidavit, in my submission, in particular, I think emphasis was placed on paragraph 4b, does no more than set out what is the DPP’s understanding after discussions with the Attorney‑General’s Department of what Mr Theophanous might or might not do and so that is the context in which the sentence:

It is understood that the petition of mercy foreshadowed in paragraph 3b has not yet been lodged and may await the outcome of the request for judicial inquiry.

That petition is, of course, in Dr Theophanous’ hands and that is the DPP’s understanding of where it might be and where it might be going.  If I can move beyond that I think it is clear from the affidavit of Ms Green that the DPP is not seeking to have the superannuation order issue agitated at this time and that is so, but that is, in my submission, a separate matter to the costs which arise from separate proceedings, namely, the proceedings in which the case stated occurred.  Those proceedings that I mentioned in opening do not directly challenge the superannuation order process.  What they challenge is the validity of the superannuation order provisions.

It is entirely consistent with the closer relationship of the superannuation order proceedings to the issues that Dr Theophanous seeks to agitate in his Petition of Mercy that that process might be awaiting further developments at the same time as the Commonwealth wishes to take these limited further steps in relation to the costs arising from the challenge to the validity of the Act itself.

The third issue concerns the guarantee which Dr Theophanous has asked me to give on behalf of the Commonwealth, namely, a guarantee that the Commonwealth will never take any steps to enforce the summons until a decision has been made on the judicial inquiry request and a Petition of Mercy is lodged.  For fairly obvious reasons, in my submission, I am unable to give that assurance.  I can inform the Court that no instructions have been given to AGS, or indeed to anybody, to take steps to recover the costs of the case stated proceedings.

It is not appropriate to give the undertaking that Dr Theophanous seeks, however, for the simple and self‑evident reason that the filing of the Petition of Mercy is a matter which is in Dr Theophanous’ own hands and it may well be that no such petition is ever filed.  It is not appropriate, in those circumstances, for an undertaking of that scope to be given, but having said that, your Honour, can I say that the Commonwealth’s conduct in relation to this matter at all times has indicated, and indeed, demonstrates, a very pragmatic and realistic appreciation of the extent to which Dr Theophanous is desirous of filing a Petition of Mercy and the extent to which it is at least conceivable that if that occurs the outcome of that process may bear on any decision downstream to recover costs.

To that end, the Commonwealth has readily stood by for over four years whilst the matter is before ACLEI and whilst a Petition of Mercy was expected.  In a different venue the Commonwealth has consented to and, indeed, I think at least for some of the period been the moving party in an application to stall the superannuation order proceedings which it itself had originally commenced whilst the issues agitated by Dr Theophanous were pursued, and, indeed, as exhibit EJN-10 demonstrates, that remains the Commonwealth’s position in relation to those matters in that forum.

Finally, even here today, the Commonwealth’s position is a very limited one.  We seek to take steps to file a bill in taxable form that will lead, presumably, to a taxable sum being ordered or directed as a result of a taxation process and the Commonwealth has not instructed any solicitors at this time to take any steps to recover those costs.  Now, all of that, whilst falling short of the guarantee that Dr Theophanous seeks, demonstrates, in my submission, a very pragmatic and responsible and appropriate approach to this issue.  In those circumstances, the limited steps we seek leave to take by way of this morning’s summons are appropriate, in our submission.

The final point I need to make, your Honour, is simply about the letter to the then Prime Minister which was handed up as exhibit A and I apologise because I did not have the letter in front of me as it was being read from.

HER HONOUR:   I should, perhaps just for the record, record that.  Exhibit A is a letter from Dr Eriksson to Prime Minister John Howard dated 4 June 2007.

MR RAWSON:   Thank you, your Honour.  Your Honour, we do not see that the contents of that letter are relevant to the matters before your Honour and for that reason I do not propose to ‑ ‑ ‑

HER HONOUR:   They show that some sort of inquiry into the conduct of certain officers of the former National Crime Authority was sought, at least as from 4 June 2007.

MR RAWSON:   Yes.  I do accept that, your Honour.  Perhaps I should make a more limited point.  We do not see that the references within those letters to the extracts of the decision of Judge Morrish are relevant to the matters before your Honour this morning and therefore I do not propose to address your Honour on them other than to say, firstly, if –there was, as Dr Theophanous read them, I think some – at least I had some difficulty in apprehending which parts were said to be direct quotes from the judgment of Judge Morrish and which passages were summaries or interpolations from, but that said, in at least one instance I did notice that what certainly appeared to me to be presented in the letter as a direct quote from the judgment did leave out some passage within the judgment. 

I just want the record to show that by not addressing what was said in Court about the contents of Judge Morrish’s judgment the Commonwealth should not be taken as having agreed that everything which was said about that judgment was an accurate characterisation of the judgment.

HER HONOUR:   As I understand the matter, the point of the tender is to show that inquiry was sought, at least from 4 June 2007.

MR RAWSON:   Yes.

HER HONOUR:   And not tendered for other purposes.

MR RAWSON:   We accept that is so.

HER HONOUR:   There is nothing else relevant before me, relevant to your summons.

MR RAWSON:   Yes, I agree with that.  I just wanted to make it clear that my silence on other matters in the letter should not be taken as agreement with them.

HER HONOUR:   Yes.

MR RAWSON:   Unless your Honour has any questions, that is all.

HER HONOUR:   No, thank you, Mr Rawson.  Is there anything further?

MR THEOPHANOUS:   Yes, your Honour.  Mr Rawson said that the ACLEI matter is closed as of ‑ ‑ ‑

HER HONOUR:   July last year.

MR THEOPHANOUS:   July last year.  Actually, that is factually incorrect because following the receipt of the report, Dr Eriksson wrote to the ACLEI Commissioner and explained how disappointed we were about the approach he had taken and pointed out in a 27‑page letter how many of his conclusions were, in our opinion, mistaken and quoted from her Honour Judge Morrish and took great exception to his approach to the findings of her Honour Judge Morrish. 

The Commissioner – and I have to table a second document, your Honour – actually, there were two of them – responded to Dr Eriksson very briefly in the following terms – “I write to let know that I am considering the matters which you raised in your letter of 9 September 2010 and will inform you of the outcome in due course.”  I am sorry, that was 3 November, your Honour.  On 24 September he wrote this:  “Thank you for your letter dated 9 September 2010 about my report on the assessment of the issues which you have raised with me.  I will consider the comments you have made in your letter and inform you in due course of the result of my consideration” - inform you in due course of the result of my consideration.  Your Honour, we have not received the result of the reconsideration or the consideration of Mr Moss to this date, therefore, it is actually factually incorrect to say that the whole matter in relation to Mr Moss is closed. 

In relation to the various assurances or the extent to which Mr Rawson has been able to make assurances, it is quite possible to qualify the matter in such a way.  For example, it is possible to say that the

Commonwealth will not take any action until such time as (a) the judicial inquiry decision is made and, (b) within a period which can be set by your Honour of three or four months a Petition of Mercy application is made.

That would overcome the claim by Mr Rawson that I may not make such a – if I do not make such an application in three or four months after the decision of the Minister in relation to the judicial inquiry then it becomes a matter where the Commonwealth can decide to take further action, but I think that to say that the Commonwealth has behaved with the greatest forbearance in this matter is incorrect because, as I pointed out earlier, as early as August of last year, immediately after – when we had just virtually received the report – only three weeks after we had received the report - from Mr Moss and before anyone could possibly have produced a Petition of Mercy they sought to break the undertaking which they made that they would wait for the Petition of Mercy.

That is the fundamental point, your Honour, they made an undertaking and there were reasons why they made that undertaking.  They made that undertaking because of the serious issues which Mr Rawson pretends are in some way not relevant to the matter but they are relevant, your Honour.  I say they are very germane to the matter and that is, when the Commonwealth makes a commitment of this kind in writing it should be required to stick to its commitment. 

If it can be proved that I failed to produce the Petition of Mercy for some reason due to my fault that would be a different matter, your Honour, so I ask you, at the very least, to get a guarantee of the kind that I have mentioned and that is that there will be no action until the Minister decides on the inquiry and subsequent to that decision a period of three months or so for me to present the Petition of Mercy.  I think that is a very reasonable request, your Honour.

HER HONOUR:   Thank you.

This is an application by way of summons for leave to take a step in a proceeding where three years or more has elapsed since any party has taken any step. Leave is required by rule 4.03.2 of the High Court Rules 2004 (Cth).

The plaintiff, Andrew Charles Theophanous, was a member of the Commonwealth House of Representatives from 1980 until 2001.  He received a retirement allowance after he left office under the parliamentary superannuation scheme.  In 2002, the plaintiff was convicted of various offences involving fraud and corruption and was sentenced to a term of imprisonment. 

On 9 September 2004, an application for a superannuation order was made by the Director of Public Prosecutions of the Commonwealth, as authorised by the Justice Minister, to the County Court pursuant to provisions of the Crimes (Superannuation Benefits) Act 1989 (Cth) (“the CSB Act”). When a superannuation order is made, all rights to such future benefits cease and benefits already received are to be repaid to the Commonwealth – sections 19 and 21.

Before that application was heard and determined, the plaintiff commenced proceedings in this Court on the basis that the relevant provisions of the CSB Act were unconstitutional because they effected an acquisition of property on other than just terms. Questions were reserved for determination by a Full Court of this Court in an amended case stated. One of the reserved questions was “[w]ho should pay the costs of the stated case and of the hearing of the stated case before the Full High Court?” The High Court unanimously rejected the submission that the relevant provisions of the CSB Act were unconstitutional – Theophanous v Commonwealth (2006) 225 CLR 101; [2006] HCA 18. The question as to costs was answered adversely to the plaintiff.

The reasons of this Court were handed down on 11 May 2006 after a hearing before a Full Court on 1 March 2006.  On 19 December 2006, the defendant provided the plaintiff with a bill of costs.  Correspondence accompanying the bill of costs indicated that the defendant sought the plaintiff’s response within 21 days and would seek to have the bill of costs filed in this Court for taxing if no response from the plaintiff was forthcoming.

The plaintiff responded, through his solicitors, on 29 January 2007.  In the letter, the plaintiff indicated that he would “probably be making a PETITION OF MERCY to have these matters reopened” and that “[s]uch a Petition could take several months to prepare”.  The defendant wrote to the plaintiff again on 6 June 2007.  The defendant noted that the plaintiff had not, at that stage, taken any steps to advance a Petition of Mercy.  The defendant advised the plaintiff that it was instructed not to take any action to tax the costs order made by this Court provided the plaintiff brought his Petition within a reasonable time.  The defendant also asserted that if the plaintiff failed to bring his Petition within a reasonable time, it would review its position regarding the taxing of the costs order.

The defendant wrote to the plaintiff again on 6 November 2009.  In that letter the defendant noted that the plaintiff had still taken no action in respect of his proposed Petition of Mercy, and advised him that the defendant intended to proceed to have the order for costs taxed.  The last step which had been taken in the proceedings at that stage was the service of a bill of costs on 19 December 2006. 

On 22 September 2010, the defendant again wrote to the plaintiff. Among other matters, the defendant noted that no Petition of Mercy had yet been filed. The defendant, accordingly, advised the plaintiff that it would shortly file a summons for directions under rule 4.03.2 in order to obtain leave to take a step in the proceedings. On 20 October 2010, the defendant wrote to the plaintiff directly because the plaintiff’s retainer with his solicitor had, it appears, come to an end. Again, the defendant advised the plaintiff that it would soon take steps to enforce its order for costs.

On 28 October 2010, the plaintiff personally wrote to the defendant and contended that a reasonable time, in reference to the defendant’s letter of 6 June 2007, had not yet elapsed, given certain factual occurrences.  In the circumstances, the plaintiff requested more time so that he could seek prerogative mercy by a Petition, which he said he still wished to do.

The defendant responded to the plaintiff on 18 November 2010. The defendant then gave notice that it would file a summons for directions seeking leave to take a step pursuant to rule 4.03.2, but noted also that in the light of the plaintiff’s desire to file a Petition of Mercy it would not necessarily seek to enforce the costs order at that time. The plaintiff’s solicitor responded to the defendant on 22 November 2010 and sought a further three months’ time.

The defendant filed its summons dated 25 March 2011, returnable today, seeking leave as required under the High Court Rules to take a further step in the proceedings, namely to file in the High Court Registry and to serve on the plaintiff a bill of costs in taxable form.

Today, the plaintiff made submissions during the course of which he explained reasons for delay in preparing a Petition of Mercy.  For the purposes of dealing with the defendant’s summons, I accept the plaintiff’s submissions that the preparation of a Petition of Mercy is both complicated and time consuming.  The plaintiff sought an adjournment of the defendant’s summons until a Petition of Mercy was finalised.  It was further urged that the finalisation of a Petition of Mercy should await a judicial inquiry into the conduct of officers of the instrumentality formerly known as the National Crime Authority.  No such inquiry is on foot, although it appears from correspondence between Dr Eriksson, the wife of the plaintiff, and the honourable John Howard, then Prime Minister of Australia, that such an inquiry was first sought on 4 June 2007.

However, it is now over five years since the matter was heard by the Full Court and nearly five years since the Court’s reasons were handed down.  Accordingly, in terms of the limited steps which the defendant wishes to take in the proceedings, it does not much matter that a proposed Petition of Mercy is subject to complications which are relied upon to explain the delay in its preparation and finalisation.

Given the length of time which has elapsed since judgment, and given the defendant’s assurance in correspondence, repeated in Court today, that it would not necessarily seek to enforce the costs order because of a possible Petition of Mercy, it is appropriate that leave be given to the defendant to take a limited step in this proceeding, namely to file and serve a bill of costs on the plaintiff.  In all the circumstances, the interests of justice do not require an adjournment of the defendant’s summons. 

I make the following orders:

1.The defendant have leave to take a further step in the proceedings, namely to file in the High Court Registry and to serve on the plaintiff a bill of costs in taxable form.

2.Costs of this application to be costs in the cause.

AT 10.36 AM THE MATTER WAS ADJOURNED