Transworld Marine Agency Co, ex parte

[2000] HCATrans 44

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S196 of 1999

In the matter of –

An application for a Writ of Certiorari against THE HONOURABLE BRIAN JOHN MICHAEL TAMBERLIN, a Judge of the Federal Court of Australia

First Respondent

JAMES GEOFFREY ROLFE

Second Respondent

Ex parte –

TRANSWORLD MARINE AGENCY COMPANY N.V.

Applicant/Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 FEBRUARY 2000, AT 9.25 AM

Copyright in the High Court of Australia

MR D.E. GRIEVE, QC:   I appear with MR J.S. WHEELHOUSE for Transworld which is the prosecutor in the claim for an order of certiorari.  (instructed by Deacons Graham & James)

HIS HONOUR:   This relates to the proceeding before Justice Tamberlin?

MR GRIEVE:   Correct.

MR G. GRIFFITH, QC:   I appear with MR M.R. ALDRIDGE, SC, for the respondent, to oppose, your Honour.  (instructed by Goldsmiths)

HIS HONOUR:   Now, I have a certificate from the Deputy Registrar informing me that the first respondent, the Honourable Justice Tamberlin, submits to the order of the Court, save as to costs.

Yes, Mr Grieve, what is the affidavit that you read?

MR GRIEVE:   The affidavit we rely on is that of Neil Edward McGregor McDonald, sworn 8 November 1999.

HIS HONOUR:   Yes, I have seen that.  Do you have any objection to that, Dr Griffith?

MR GRIFFITH:   No, your Honour.

HIS HONOUR:   Very well.  I take that as read.

MR GRIEVE:   Thank you, your Honour.

HIS HONOUR:   Is there any other evidentiary basis or not?

MR GRIEVE:   No, that is the whole of our evidence.

HIS HONOUR:   I assume that I can have regard to the file in relation to the earlier proceedings?

MR GRIEVE:   Of course, your Honour.

HIS HONOUR:   Yes, very well.  Well, I will do that and I am aware of those earlier proceedings, having made the order in them.

MR GRIEVE:   It comes to this, your Honour, in short compass:  Mr Rolfe’s claim for an order of prohibition rests on the proposition that the Federal Court generally had no jurisdiction to entertain the proceedings at all.  They may not put it quite in those terms but that is the ultimate basis of their contention.  They say, therefore, that the Full Federal Court is powerless to make the orders which it has foreshadowed to make in partial allowance of Transworld’s appeal against Justice Tamberlin’s judgment.

If that claim made by Mr Rolfe for that order succeeds, then, without more, on the face of it, the judgment of Justice Tamberlin would stand unaffected but, of course, the premise that underlies Mr Rolfe’s claim for prohibition applies no less than Mr Justice Tamberlin’s judgment than it does to the foreshadowed orders by the Full Court.  We submit then that if this Court concludes that the Federal Court generally is powerless to deal with the matter, particularly in light of the fact that the Full Federal Court has indicated that, in its view, after several days of argument, Mr Justice Tamberlin’s judgment is flawed in certain respects, this Court should not allow that judgment to stand and should bring it up in - - -

HIS HONOUR:   Well, at the least, I suppose you say that if we brought up the one, we ought to bring up the other so that each of them can be argued and each of you can have your chance to argue the issues and as they touch the orders of the Federal Court or the action of the Federal Court, one way or the other.  Now, I have two questions.  One is you ask that I make the order nisi?

MR GRIEVE:   Yes.

HIS HONOUR:   But I notice that in the earlier proceedings I simply directed that the application be made before the Full Court, did I not?

MR GRIEVE:   Yes.  Well, we are content for the same course to be followed.

HIS HONOUR:   The second question relates to this:  I have in the back of my mind a memory of certain dicta in the Court which suggests that certiorari, though provided for in the Judiciary Act, is only granted by the Court as adjunct to the provision of a constitutional writ, certiorari not being one of the writs mentioned in the Constitution. I notice that you do not, in your application, although Mr Rolfe does in his, seek one of the constitutional writs. Now, nothing may turn on this and it may be that Dr Griffith does not take any point on it, but I just signal the fact that I have some recollection that the status of certiorari has been mentioned or questioned. Now, it could be that that could be cured in any case by your seeking a constitutional writ of prohibition.

MR GRIEVE:   Well, we would do that.

HIS HONOUR:   But I just mention it.  Maybe Dr Griffith can help me on that.

MR GRIEVE:   Yes, certainly, your Honour.

HIS HONOUR:   Dr Griffith.

MR GRIFFITH:   Yes, your Honour.  The arguments there, your Honour, as I understand it, the Court has never resolved it and has on several occasions issued a bare certiorari without - - -

HIS HONOUR:   It has, yes.

MR GRIFFITH:   It has.

HIS HONOUR:   That is right, I remember that.

MR GRIFFITH:   Yes, and it is not a point that particular appeals, without instructions, to us, your Honour.

HIS HONOUR:   It is provided for in the Judiciary Act, is it not?

MR GRIFFITH:   Yes, your Honour, and there is just the question of power and it has never been an appealing point.

HIS HONOUR:   Yes.  It is curious that the founders only mentioned three writs, or the writ of prohibition, mandamus and declaration and not certiorari, which is such an ancient writ and so much used in the United States.

MR GRIFFITH:   Well, it is very hard to use the expression of the three without the fourth, your Honour.

HIS HONOUR:   Yes.  Well, they could have slipped in quo warranto and a few others but - - -

MR GRIFFITH:   Perhaps my namesake, distant relative, your Honour, was sort of working too late at night and the pen slipped or something like that.

HIS HONOUR:   Yes.  I hope that does not happen to you, Dr Griffith, too much.

MR GRIFFITH:   Your Honour, but we do have problems about this entire application.  We do understand its terms when it was made in November where, if I could take your Honour to the - - -

HIS HONOUR:   Do you have any evidence that you wish to place before me for the respondent to this motion?

MR GRIFFITH:   I have an Act, your Honour.  Now, the application was issued in November.

HIS HONOUR:   You have handed me the Federal Courts (State Jurisdiction) Act 1999 of Victoria.

MR GRIFFITH:   Yes.  Your Honour, that does have a relevance because what my learned friend’s application does now, on its face, is to say, as he put to your Honour very concisely in his usual way, if, in the prohibition proceedings, the view is sustained that the Full Court has no jurisdiction, it must be as much that Justice Tamberlin have no jurisdiction and that is a sustainable proposition as at November.  From 15 December, your Honour, that is an untenable proposition, in our - - -

HIS HONOUR:   Well, it might be, but would I close him out of that, given that your application is going to be heard by the Court.  He may wish to challenge the validity of this State Act, in which event the whole issue ought to come to the Court.  I have looked at the history of this litigation and it must be looked on with a mild degree of astonishment over in places in Europe where it is read.

MR GRIFFITH:   I was just discussing that with my learned friend.  Your Honour, it must be completely inexplicable to the burghers of Brussels.

HIS HONOUR:   So that ought this Court not to do its part to ensure that the matter comes to a conclusion, at least so far as we can, in one hearing before this Court.

MR GRIFFITH:   We would quite agree, your Honour, but it is a question of what the matter is.  At the moment, the matter of my learned friend is for the same reason that the Full Court’s decision might successfully be attacked by our application for prohibition, he says he is entitled to an order.  Now, if in fact his argument is he is entitled to an order because he has a constitutional argument, in my submission, he should tell your Honour and us about that today so that we have a constitutional pleading, we have 78Bs, and we know - - -

HIS HONOUR:   Well, I think that is reasonable and I assume and I imagine you assume that his constitutional argument would be, to the extent that the Federal Courts (State Jurisdiction) Act 1999 purports to add any validity to the orders of Justice Tamberlin, it is beyond the power of the Parliament of Victoria.

MR GRIFFITH:   I do not know whether your Honour is giving my learned friend an idea because he has not mentioned it, your Honour.

HIS HONOUR:   No, I am simply trying to articulate what I would take to be his constitutional objection to whatever force you rely upon in this Act.  Is that so, Mr Grieve?

MR GRIEVE:   Yes, your Honour.

MR GRIFFITH:   Your Honour, we would suppose he should, not using Las Vegas lights on his word processor, spell it out in his ground.

HIS HONOUR:   I think that that is perfectly reasonable.

MR GRIFFITH:   Yes.  Now, your Honour, we do - - -

HIS HONOUR:   And that he would have to give notices under section 78B of the Judiciary Act.

MR GRIFFITH:   Yes.  Well, that makes it an entirely different case. your Honour, because that will excite - - -

HIS HONOUR:   Yes.  It could – I have been informed by the Deputy Registrar, and I imagine you may also know, that there is a possibility that this matter will be – the first matter, that is to say, the one I referred to the Full Court last year, will come on for hearing in May and the identification of the issues in this application could have some significance for the holding of the dates that have been assigned.  If this case is going to blow out into a larger or much larger matter, then that could be relevant to whether the dates are kept.

MR GRIFFITH:   Yes, your Honour.  Well, until the intimation from my friend, we did not know that that was an issue that was sought to be raised here.

HIS HONOUR:   Yes.  I thought that there was some mention when the matter was before me last year of the question of the status of Justice Tamberlin’s order.

MR GRIFFITH:   There was, your Honour, but there was no Victorian Act then, so we had nothing to attach this issue to.

HIS HONOUR:   Yes.  I think you are perfectly right to say that you are entitled to have placed before you and the Court any constitutional point that will be taken in relation to whatever force the Federal Courts (State Jurisdiction) Act 1999 adds to the orders of Justice Tamberlin.

MR GRIFFITH:   Yes.  Well, your Honour, perhaps this does not take it much further but my learned friend, we would say, would have another problem because it would seem to be at least common ground at the lowest level of analysis that were Justice Tamberlin’s judgment to be maintained, my learned friend could take advantage of whatever rights of appeal in the Victorian court which might be maintained under the Victorian Act.  So that, your Honour, then one is faced with the situation that our learned friends says, “Well, I want a remedy because of all these circumstances, and Justice Tamberlin’s judgment was against me.  It should be set aside because of the equity, as it were, from the Full Court judgment”, which I think his - - -

HIS HONOUR:   But that would be something consequential, would it not?

MR GRIFFITH:   Well, it might be, your Honour.

HIS HONOUR:   If this Court were to say Justice Tamberlin’s orders, being the orders of a Federal Court, fully formed and completed, are valid on their face.

MR GRIFFITH:   Yes.  Well then, it would not be - - -

HIS HONOUR:   That could be one possibility.   Second possibility:  they are prima facie valid but in the light of Ex parte Wakim they fall against the Constitution. They have no validity. That is another result. A third result is they have statutory validity under the Federal Courts (State Jurisdiction) Act 1999 and that could have consequences for any right of appeal that is provided under that Act. So that that is a third possibility, but that would only arise by the determination of the third issue of validity.

MR GRIFFITH:   We would agree that they are three choices, your Honour, but the point I wanted to make is that inasmuch as my learned friend seeks certiorari, we would say that, having regard to the Court’s practice, it is appropriate for him to demonstrate he has exhausted rights of appeal before he approaches the Court for certiorari.

HIS HONOUR:   That is normally required but it is not, as I recollect it, an absolute requirements.

MR GRIFFITH:   Your Honour is entirely right.

HIS HONOUR:   In some cases it may be convenient and in what is, I suppose, in some senses a test case concerning how Ex parte Wakim applies and as it will become if this application is successful, what lawful affect the Federal Courts (State Jurisdiction) Act 1999 has, then that may not be a discretionary consideration that would loom large.

MR GRIFFITH:   Yes.  Well, your Honour, just having regard to the application as it seemed, it seemed to us these propositions were an absolute answer to my learned friend’s application as framed.

HIS HONOUR:   They may well turn out to be before the Full Court.

MR GRIFFITH:   With the foreshadowed addition, then there is something which your Honour, we would concede, may refer.  Without that, your Honour, we would have maintained out position that there is no relevant matter raised to be referred.  But if my learned friend indicates that he intends in some unspecified way to raise that issue, well then, we can see the basis for a reference in.

HIS HONOUR:   What is the precise amendment?  I would not intend today to issue an order nisi.  I would intend to order that the application for the writ of certiorari be argued on motion before the Full Court and consolidate it with the earlier proceedings.

MR GRIFFITH:   We would submit, your Honour, not this application.  My learned friend should bring forward another one.  Perhaps we can consult and agree and then bring that forward to your Honour on one which we say does seem to make the ground.  We will not raise difficulties but we say, your Honour, this does not get there at all.

HIS HONOUR:   Well, that could then give Mr Grieve the opportunity to consider whether wisdom might suggest a writ of prohibition should also be sought and how you would formulate the question that is raised on your argument of the validity of this Victorian Act.  Is that a matter for you to assert and for him to deny?

MR GRIFFITH:   No, your Honour, because grounds, in our submission, have to be stated in the order nisi.  The Rules require that.  His ground, your Honour, is not the ground stated here because, self‑evidently, having regard to the relevant legislation, it cannot be asserted that - - -

HIS HONOUR:   What is the section of the legislation that purports to breathe life into Justice Tamberlin’s order?

MR GRIFFITH:   Section 6, your Honour.  It is really a complete resurrection, we would say, on the face of the words, your Honour.  So, we say we are entitled to say that the ground stated is not sustainable unless my learned friend says, having regard to the argument that the Act or at least section 6 is beyond power and ineffective, then the circumstances are the same as for the Full Court judgment.  Otherwise, he has no proposition to make, your Honour.

HIS HONOUR:   But does it not require him to say, anticipating an argument that you may or may not advance, to the extent that the Federal Courts (State Jurisdiction) Act 1999 (Vic) purports to make effective the judgment of Justice Tamberlin, it is beyond the power of the Parliament of Victoria?

MR GRIFFITH:   We say that is my friend’s ground.  If he does it like that, that is probably, your Honour, an effective way of doing it.  But it is not for us to defend Justice - - -

HIS HONOUR:   You say, on the face of a statue of a parliament of Australia, the Act is given a fresh basis of validity.

MR GRIFFITH:   The decision.

HIS HONOUR:   Or an additional basis for validity and that it is therefore appropriate in any reference of the matter to the Full Court that the question of that validity which you will be relying on be determined expressly by the Court?

MR GRIFFITH:   Yes, exactly, your Honour.  My learned friend has to satisfy your Honour that he has an argument.  We say, your Honour, having regard to the terms of that section, unless he challenges validity, he cannot satisfy your Honour that there is a ground for reference.

HIS HONOUR:   There is something that occurs to me immediately, Dr Griffith, is was any opportunity afforded to him or his client to be heard before the purported parliamentary provision for the giving of effectiveness to a judgment came into force?

MR GRIFFITH:   I would be prepared to concede, of course not, your Honour.

HIS HONOUR:   Well, does that not immediately raise a question as to whether a parliament in Australia can, in a sense, make a statutory judgment without giving persons the opportunity to be heard?  It may be effective but it raises a question.

MR GRIFFITH:   Your Honour, if it were a Commonwealth Act, of course you would have an acquisitions issue directly arising but that is what it is not.

HIS HONOUR:   But it is a judgment of a court in an integrated judiciary as provided by the Constitution. I am not saying these are good arguments. I am saying that they will have to be heard and determined.

MR GRIFFITH:   Yes.  Your Honour, what I say is merely for the purpose of what is the ground.  We say the starting point is that we can say to your Honour, on reading that Act, Justice Tamberlin’s judgment is a valid judgment and it is different from the Full Court judgment.  His application is if the Full Court is judgment tainted for the same reasons this is.  That cannot be…..being the same reasons because he has to deal with the Act.  But, your Honour, it is perhaps a matter of expression.  My learned friend has indicated he is prepared to state that ground.  If he does, we could accept, your Honour, that is a basis for reference of the matter.

HIS HONOUR:   Yes, I think you have a point.  I will hear what Mr Grieve has to say about that.

MR GRIFFITH:   And as I indicated, your Honour, we are not very much concerned about the attaching another writ to the matter.

HIS HONOUR:   No, all right.  I just raise it because I think some members of the Court recently have raised the question.  I think I did myself in a case.

MR GRIFFITH:   Quite rightly, your Honour, but it has just been ducked in practice and orders have been made as bare orders and - - -

HIS HONOUR:   It is very sensible that we should have the power to issue the writ of certiorari but I thought there was a judgment of Justice Aickin which said it can only be given as adjunct to a constitutional writ.

MR GRIFFITH:   There are several statements by Justices of the Court, your Honour, indicating there is a problem but in a practical way orders have been made and the problem has been not dealt with.

HIS HONOUR:   Yes, very well.

MR GRIFFITH:   After 100 years one hopes the problem has almost gone away.

HIS HONOUR:   You can never make that assumption; never.

MR GRIFFITH:   Perhaps so.  Perhaps that is right, your Honour, but for the moment, unless I get very strict instructions, we would not be concerned with it.

HIS HONOUR:   Yes.  Thank you very much, Dr Griffith.  Well, how do we solve this problem, Mr Grieve.

MR GRIEVE:   We are content to propound it in that fashion, as your Honour has indicated.

HIS HONOUR:   Is the appropriate procedural course for me either to stand this down where it could be determined later in the day or for you to come forward after discussion with Dr Griffith with a new document?

MR GRIEVE:   Either way.  The first would encompass the second.

HIS HONOUR:   I am happy – I have some more work to do and I can fit in with the convenience of the parties.

MR GRIEVE:   Well, the second course would no doubt encompass the first, in any event.  My learned friend suggests that we can agree on the format of the document between ourselves and then send it to your Honour in chambers, if that is convenient, rather than come back.

HIS HONOUR:   Yes, that will be appropriate.

MR GRIEVE:   In principle, we see no particular difficulty in pursuing the formula that your Honour outlined.  This is not a matter that is going to turn one way or the other on questions of onus or anything.  It does not matter who really raises the question.  We are quite content to propound the proposition that the Victorian Act is beyond power.

I should say for completeness, and I do say with some measure of reservation, that section 9 of the Victorian Act may conceivably come into play also.  The point may have no substance but I will flag it for the purpose of alerting our friends and we will give it some further consideration to see whether it is worth propounding.  But the legislature has chosen to use a rather Delphic expression, “gave or recorded”.  Section 11, on its face, is designed to effectively apply to judgments of appellate courts which have reviewed judgments at first instance.  Now, it may be available to us to argue that what the Full Court here has done is to give a judgment, albeit that that judgment has not been recorded by reason of your Honour’s orders.  The point may, on consideration, be so lacking in merit that we will not pursue it but it occurs to me that it is a conceivably arguable point and we may wish to raise it as a further alternative.

HIS HONOUR:   May I envisage the orders that I would in due course be minded to make, subject to your being able to agree on a form of application for order nisi which is acceptable to the parties and acceptable to me?

They would, following the earlier order, be:

1.  An order that application for an order nisi for a writ of certiorari (in the draft form which I will initial and place with the papers) be made by notice of motion to a Full Court, such notice of motion seeking orders then to be specified.

2. A direction that after 28 days notices in accordance with section 78B of the Judiciary Act 1903 (Cth) be given of any matters required by that section arising out of the application.

3.  An order that the costs of the proceedings before the Court today be reserved to the Full Court.

4.  A direction that the application be listed at the same time as the application in matter No S176 of 1999 to be heard by the Full Court consecutively with the hearing of that application, and

5.  A certificate that this was a proper matter for the attendance of counsel in chambers.

I will give you leave to send the form of the draft order nisi into my chambers if I am not still sitting when it is settled or it can be mentioned before me in open court.  Once that is agreed, they will be the orders of the Court.

Do you have any comment?  Are you content with those orders?

MR GRIEVE:   Yes, your Honour.

HIS HONOUR:   Dr Griffith?

MR GRIFFITH:   Your Honour, we suppose my learned friend will give notices this time.  We gave the requisite notice under the other order.

MR GRIEVE:   Oh yes.

HIS HONOUR:   Yes, that would be his ‑ ‑ ‑

MR GRIFFITH:   And secondly, could your Honour direct that there be just one set of Court books.

HIS HONOUR:   Yes.  Do you have any objection to that course.  That seems sensible, especially in the light of the history of this litigation.

MR GRIEVE:   No, your Honour.

HIS HONOUR:   I will add to those a sixth direction that there be one set of application books to be settled by agreement between the solicitors for the parties, or in the event of any dispute to be referred to me.

Call the second application.

AT 9.51 AM THE MATTER WAS CONCLUDED