Theophanous v Commonwealth of Australia

[2005] HCATrans 386

[2005] HCATrans 386

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

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 9 JUNE 2005, AT 9.37 AM

(Continued from 6/6/05)

Copyright in the High Court of Australia

MS D.S. MORTIMER, SC:   If the Court pleases, I appear with my learned friend, MR R.M. NIALL, for the plaintiff.  (instructed by Zindilis Barristers & Solicitors)

MR C.J. HORAN:   If your Honour pleases, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   What is the position, Ms Mortimer?

MS MORTIMER:   Your Honour, we are almost but not quite in agreement and we have handed to your Honour two versions of the proposed case stated.  The differences are, if your Honour looks at the plaintiff’s version, the presence of paragraph 15 and the consequential amendments that its presence requires to paragraph 19.  That really is a disagreement between us about whether the Minister’s reasons for decision to authorise the DPP to make the application are relevant.  That is the extent of the disagreement between the parties about the form.

Can I take your Honour to some of the matters that I understand were raised last time by your Honour, if that is helpful.

HIS HONOUR:   Yes.  Before you do, what am I meant to do about this disagreement?

MS MORTIMER:   We would ask your Honour to resolve it in the sense that we are not.

HIS HONOUR:   How?  I am not going to give a ruling on relevance, I do not think.

MS MORTIMER:   Your Honour, we would submit that that is not appropriate and since it is one document and it is not going to add very much in terms of the material before the Court that it is better for it to go in.  If it is not relevant, then it is not relevant.  That is a matter that the Full Court can decide when the matter is before it.

HIS HONOUR:   What do you say the relevance of the fact that the Minister – sorry, which paragraph is it?

MS MORTIMER:   It is paragraph 15, your Honour.

HIS HONOUR:   Of what relevance is the fact that the Minister has given reasons for the decision?

MS MORTIMER:   The fact that reasons were given, your Honour, is less relevant than the reasons.  That is the content of the Minister’s reasons, in our submission, may be relevant.

HIS HONOUR:   Why will that arguably be relevant to know what reasons the Minister had?

MS MORTIMER:   Because an aspect of our argument about the Chapter III point may be that the considerations that the reasons of the Minister disclose were taken into account and we assume the Commonwealth will say properly go to ‑ ‑ ‑

HIS HONOUR:   But that becomes a 75(v) case, does it not, not a validity case?

MS MORTIMER:   No, your Honour.  The point is that if the considerations are the considerations that the Minister sets out, then our argument may be that that assists our case about this being punitive, this being a double punishment and the mandatory nature of it.  So when one looks at the reasons, it looks like, in terms of the considerations, the same considerations as the sentencing judge.  The Court will have both documents ‑ ‑ ‑

HIS HONOUR:   It is not necessary for you to respond to this, but let it be assumed that the Minister’s reasons were that the nature of the conduct alleged and proved against Dr Theophanous is relevant to whether I decide to authorise the making of an application, the outcome of which would be of disadvantage to Dr Theophanous.  I describe it as an outcome of disadvantage to him in an attempt to capture it as neutrally as I can rather than use the perhaps low value laden term “punishment”. 

What is the constitutional fact that is said to bear upon the question of validity?  Is it that matters of the kind I have tried to capture may be taken into account?  Is the relevant constitutional fact that matters of the kind I have described must be taken into account?  Or are the relevant constitutional facts found only in the specification of the kinds of offence which may trigger the relevant application coupled with the interposition of the Minister’s decision‑making process before application is made to a court to decide whatever the issue is that is said to be tendered by the making of that application?

Now, as I say, if you do not wish to answer those questions, do not feel that you are bound to, but it seems to me that the existence of the questions reflects immediately and directly upon whether I state a case.  Until the parties work out what they wish to contend are the relevant constitutional facts, statement of a case is premature and it is premature because we get into a Full Court and there is then a brawl about, “Well, the relevant facts are A to Z”, “No, the relevant facts are A to ZZZ”.  That is where I am at at the moment.  Now, you may choose to or not choose to respond, Ms Mortimer.  Do not feel obliged to do so.

MS MORTIMER:   Your Honour, I apprehend that if I do not we remain in the area of your Honour being uncertain about whether all the facts that need to be before the Court are before the Court and that is undesirable.

HIS HONOUR:   If you force me to an answer at the moment, Ms Mortimer, you remain in the area where I will not state a case – not I am uncertain, but I will not.  But that is the reaction of the moment, not the final answer.  I have to hear you first.

MS MORTIMER:   Your Honour, it seems, in my submission, that there may be a legitimate disagreement about whether a consideration that the Minister must take into account in deciding whether to authorise this and if that consideration be of the nature of the conduct, if that be a relevant consideration in the legal sense, that may be a constitutional fact.

HIS HONOUR:   That turns on the true construction of the Act, not what the Minister has done, does it not?  What the Minister has done may provoke thought, if you like, but at bottom is the question one about the true construction of the Act?

MS MORTIMER:   It must be, your Honour, I accept that if one is talking about relevant considerations in a legal sense.  I accept that must be right.

HIS HONOUR:   The reaction I have, Ms Mortimer – and it is an untutored and instinctive reaction – is that what the Minister did is valid or invalid if the Act is otherwise valid.  By that I mean what the Minister did is either in accordance with the Act according to its validly operating terms or it is not.

MS MORTIMER:   I accept that.

HIS HONOUR:   But at the bottom line the constitutional validity turns, I think, not on what this Minister did, which might provoke 75(v) issues; it turns on what the Act on its true construction permits or means.  Now, rather than simply present you with difficulties, a solution that might find some utility – it might not – is I think I remember in the Austin case stated about superannuation surcharges the case stated contained propositions such as, “The plaintiff alleges and the defendant denies that it is relevant to take account of X, Y, Z”.  Now, I am drawing on memory.  The memory may well be mistaken, but it may be that a form of words that runs down that path – “The plaintiff alleges and the defendant denies that in exercising the power it is relevant to have regard to” – would neatly present to the Court what seems to be some underlying argument about construction.  If there is an underlying argument about construction, let us flush it out first rather than have it flushed out in the Full Court.

MS MORTIMER:   I see the sense in that, your Honour, and it may be that in fact as between us there is no underlying argument about the construction of the Minister’s power to authorise ‑ ‑ ‑

HIS HONOUR:   Counsel are always optimistic, Ms Mortimer.  This is admirable.

MS MORTIMER:   ‑ ‑ ‑ and, your Honour, it may well be that all we need to do is try and – if that be the case, that there is no disagreement, for example, about what considerations are relevant, that we can state that fact in a form that agrees what the proper construction of that provision in the Act is without reference to this particular authorisation.

HIS HONOUR:   In the end, I think, what I am proposing to you is that the statement of a case requires that the parties have gone as far as they can in the articulation of what they say are the relevant constitutional facts.  Perhaps this is something I should have been more alert to last time round – I am sorry that I was not – but I am just a little fussed that we have beneath this an underlying controversy that needs to be resolved now.

MS MORTIMER:   Your Honour, from our perspective – and I do not know what my learned friend Mr Horan’s position is about this – if we were to have a very short adjournment of 10 to 15 minutes, we may be able to inform your Honour about that.

HIS HONOUR:   I would much prefer that this not be done on the run.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Yes, of course, I will come back in 10 or 15 minutes if that is what you want, but I would prefer you to have time to apply the cold towels to the head and think about it calmly rather than having the prospect of one eye on the clock and the other eye on the pen.

MS MORTIMER:   Very sensible, your Honour.

HIS HONOUR:   But let us hear what Mr Horan has to say.

MS MORTIMER:   If your Honour pleases.

HIS HONOUR:   Yes.  Well, Mr Horan, you have heard a lot from me and you have heard very little from Ms Mortimer, but what is your response to what Ms Mortimer has said or perhaps to me?

MR HORAN:   I think most of the points have been articulated in the discussion between your Honour and my learned friend.  The defendant’s position is that the challenge to the constitutional validity of the Act is on general grounds and that it is not a judicial review of the particular decision by the Minister in this case and the reasons for that decision.  For those reasons, it is difficult to see how the content of the Minister’s reasons can have any relevance to the constitutional validity of the provisions.

HIS HONOUR:   Well, the content of the particular decision may simply mask the fact that there is said to be a relevant constitutional fact emerging from true construction.

MR HORAN:   Yes, and if it is argued or contended that the provisions require or allow the Minister to take into account certain considerations which in turn have a bearing upon constitutional validity, then that is a different question, but the Minister’s reasons ‑ ‑ ‑

HIS HONOUR:   It provokes a prior question of construction, unless the parties accept that that is the construction.

MR HORAN:   Yes, and we would agree that if that is argued then that should be catered for in the case stated, but that could be done in the way that your Honour has suggested without attaching the particular reasons of the Minister in this case.

HIS HONOUR:   Though it will also mean that there is a prior question to ask, will it not, that if there is some fight about construction, question 1 will perhaps be, “On the true construction of the Act is the Minister permitted/required” – I do not do the drafting – “to take account of or to give effect to”.

MR HORAN:   Yes.

HIS HONOUR:   Now, once you try to put that down on paper, I think you will find that the problem begins to emerge more clearly than it is now.

MR HORAN:   Yes.  The defendant is of course in the passive position of responding to what is alleged.

HIS HONOUR:   Entirely innocent – yes, I understand that, Mr Horan.  Of course the Commonwealth is always innocent and I understand that and go forward from that proposition.

MR HORAN:   What I meant, your Honour, was that the particular point of construction, if any, that the plaintiff relies upon has not been pleaded or exposed in the case stated and it may be that the construction that is relied upon might be something that is not contested by the Minister.

HIS HONOUR:   I understand.  Now, timing – as I say, I can do this today or tomorrow.  Beyond that I will not be in a position to state a case until, at the earliest, the last week of July.  Now, I am not sure that that will affect greatly the speed with which the matter comes to hearing.  As a constitutional case, I would expect that ordinarily all available Justices would sit.  The Court will effectively be down to six after the winter recess because Justice McHugh is to retire on 1 November.  So I am not sure that delaying for what seems to be an inordinate length of time is in fact going to work any real damage to your position in the list, but I understand that for the parties it is a case of get on with it, like all litigation.  So what do you say I should do, let you mention it later today?  I am getting very edgy about the number of times counsel are coming back to Court.  Somebody has to pay for it.

MR HORAN:   Yes, your Honour.  It could be later today or it could be – from the defendant’s point of view, taking into account what your Honour has said, the defendant does not have a particular position on whether it should be today or at the end of the month, but it really depends on how long it will take my learned friend to clarify the points that the plaintiff wants to raise and when that is done ‑ ‑ ‑

HIS HONOUR:   My present reaction is to say that I would simply stand the directions over to a date and time to be fixed.  If the parties were able to get to a point where they thought it useful to come back either later today or tomorrow then I shall be in Chambers and will do my best to accommodate them.  If we cannot, we cannot.

MR HORAN:   If the Court pleases.  Thank you, your Honour.

HIS HONOUR:   Now, Ms Mortimer, you have heard that exchange.  Where do we come to from your end of the Bar table?

MS MORTIMER:   Your Honour, I am grateful for the indications of your availability and we would appreciate it if your Honour would stand it over to a date to be fixed, although I foreshadow that from our perspective we would like to try and finalise this today and would anticipate being able to mention it this afternoon.

HIS HONOUR:   I understand that.  Can I simply emphasise to you that we have to get it right.

MS MORTIMER:   Yes, I understand that, your Honour.

HIS HONOUR:   If counsel would be good enough to keep the Deputy Registrar informed about what they require of me, I will do my best to accommodate them.

MS MORTIMER:   We are very grateful, your Honour.  If your Honour pleases.

HIS HONOUR:   Not at all.  I should make the costs of today costs in the proceeding I think.

MS MORTIMER:   Yes, your Honour.

HIS HONOUR:   Yes, there will be that order, otherwise I will adjourn the matter until a date and time to be fixed.  Adjourn the Court.

AT 9.58 AM THE MATTER WAS ADJOURNED