XYN v Chief Examiner

[2016] HCATrans 2

[2016] HCATrans 002

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M254 of 2015

B e t w e e n -

XYN

Applicant

and

CHIEF EXAMINER

Respondent

Application for expedition

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO MELBOURNE

ON TUESDAY, 12 JANUARY 2016, AT 10.18 AM

Copyright in the High Court of Australia

MR C.B. BOYCE, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR L.J.D. HOWSON.  (instructed by Theo Magazis & Associates)

MR R.M. NIALL, QC, Solicitor‑General for the State of Victoria :   May it please your Honour, I appear with MS R.J. SHARP for the respondent.  (instructed by Office of Chief Examiner)

HIS HONOUR:   Yes, Mr Boyce.

MR NIALL:   Your Honour, just before Mr Boyce commences can I just raise one matter with your Honour ‑ ‑ ‑

HIS HONOUR:   Yes.

MR NIALL:   ‑ ‑ ‑ which deals with issues of confidentiality?  I regret that it is not the matter the subject of a summons, but can I just identify the issue for your Honour?  On 22 December last year Justice Riordan made an order in the Supreme Court prohibiting access to that Supreme Court file until further order.  That order was an interim order pending an application which will be heard at the trial date on 28 January for an application for some restricted publication orders under the Open Courts Act 2013. So that application, similar to 77RE, requires notice and notice has been given and that will be heard on 28 January. His Honour made an interim order simply restricting access to the file.

What has happened, your Honour, is proceedings have been initiated in this Court – or an application to commence a proceeding has been initiated in this Court which contains some of the Court file material.  Now, under the Rules of the Court, this Court, no inspection of the file of an affidavit that has not been read can occur – that is rule 4.07.  I do not understand it to be necessary for the purposes of submissions today that the applicant will read those affidavits, but the submissions filed by the applicant do contain material which would identify some matters which are confidential.  Does your Honour have a copy of Justice Riordan’s order of 22 December?  Your Honour will find it as exhibit SP‑3 to the affidavit of Mr Parker.

HIS HONOUR:   This is the first affidavit.  Yes, just a minute.

MR NIALL:   Of 4 January this year, your Honour; the supplementary affidavit.

HIS HONOUR:   The supplementary affidavit.  Yes, okay.

MR NIALL:   Yes, your Honour; exhibit SP‑3 is a copy of the orders made by Justice Riordan.

HIS HONOUR:   Yes, I have that.

MR NIALL:   If your Honour sees order 2 and order 3?

HIS HONOUR:   Yes.

MR NIALL: Now, without taking your Honour to it, section 43(d) of the Judiciary Act provides that where a cause is removed into this Court all orders:

made or taken in the cause before the removal remain in full force and effect until the High Court otherwise orders.

HIS HONOUR:   Yes.

MR NIALL: So in order to preserve the effect of his Honour’s order may we orally make application that your Honour make a similar order in this Court on an interim basis under section 77RH? We have a form of that order which I can hand to the Registrar which replicates 2 and 3 of Justice Riordan’s order.

HIS HONOUR:   That is an interim order pending an application for a suppression order or a non‑publication order under 77RH, is it not?

MR NIALL:   That is so, your Honour, and it may be that depending on the processing of the removal application that such an application would need to be in tandem with that.

HIS HONOUR:   Well, the applicant wants a removal order today.

MR NIALL:   As I understood the summons that was returnable today was that the process under the Rules under Order 26, which sets out the timetable for application for removal be expedited, and that was the matter before your Honour this morning on the summons dated 4 January.

HIS HONOUR:   Yes.  Well, perhaps I had better hear from the applicant first as to what they are seeking because I did see a reference to expedition.  Yes, I will hear from the applicant.

MR BOYCE: Thank you. Your Honour, this is the return of a summons seeking an expedited schedule for the filing of materials and potentially a hearing date in respect of a removal application made pursuant to section 40(1) of the Judiciary Act.  As my learned friend has outlined, the cause that is sought to be removed is a proceeding in the Supreme Court of Victoria, the proceeding connected with the proceeding ‑ concerning the Open Courts Act that my learned friend referred to and it is listed for 28 January 2016. 

In that proceeding – or the applicant seeks, amongst other things, an order in the nature of prohibition against the respondent, restraining the respondent from doing certain things.  Now, I do not know in what detail I need to give your Honour an idea of – I do not know in what detail your Honour will need me to describe ‑ ‑ ‑

HIS HONOUR:   I have read the materials, although for some reason I formed the impression that there was a desire, if possible, to seek an order as quickly as today; I do not know where I got that from, that is obviously incorrect.

MR BOYCE:   No, that is not correct, your Honour.  If I can cut directly to the chase here, it would seem – and I do not want to speak too much on behalf of my learned friend, but it would seem that the position as between the parties is essentially agreed insofar as orders for expedition are concerned.  You see, if such orders are not made the all‑important date is 28 January of this year.  So if the orders for expedition are not made then, all things flowing the way in which they ought flow, the proceeding in the Supreme Court might take place prior to the removal hearing and, of course, that would make the removal hearing moot.  So the desire of the applicant is to have a removal hearing at some stage prior to – or determined prior to 28 January 2016 and it requires orders expediting the filing of submissions and the listing of a hearing date and so forth in order to achieve that end.

HIS HONOUR:   Now, there is a fairly limited time available to do that, but I could make time available for the hearing of an expedited removal application subject to the parties’ capacity to be ready on Friday of this week or Monday of next week.

MR BOYCE:   Monday of next week would suit – I am sorry, Friday of next week – of this week, your Honour?

HIS HONOUR:   Friday of this week or Monday of next week.  After that I am out of the jurisdiction for a time. 

MR BOYCE:   Excuse me, your Honour, if I may.  I do not want to try your Honour’s patience but I think we would prefer Monday of next week if that is ‑ ‑ ‑

HIS HONOUR:   That is not a problem.  I am just giving you the option.  It does not surprise me that you would prefer that.

MR BOYCE:   Indeed.  I am really in my friend’s hands.  If my friend can have his – if he would be able to cope with that ‑ ‑ ‑

HIS HONOUR:   Mr Solicitor?

MR NIALL:   Our preference, your Honour, would be Friday, but my learned junior can do Monday.  Can I indicate the position in general terms, your Honour?

HIS HONOUR:   Yes.

MR NIALL:   The position of the Chief Examiner is that he wants the matter obviously resolved and with finality as soon as possible.  That is the first point.  The second point is that the coercive powers order that is made lasts for 12 months which would go to June this year.  So in one sense, with respect, the Chief Examiner is alive that if it stays in the Supreme Court there is the risk of appeals, applications for special leave or another application for removal after the first instance.

So that desire to have it determined is weighing heavily.  It is really a matter of which is the most expeditious way to have it resolved, with respect, and it may be that if this Court could entertain the removed application, assuming that it be appropriate for removal relatively quickly, then it may be, for all parties, that is the most expeditious way to go about it. 

There are really, as we would apprehend it, three points that the applicant would need to establish.  One would be that the examination would constitute a contempt; secondly, the examination has been authorised by a provision; and, thirdly, that the authorising provision is invalid.  We do not see any factual issues arising in those.  Of course, if the trial which is currently listed in the County Court is heard before the examination goes ahead then the whole matter goes away.  I am not sure if any of that is helpful, your Honour.

HIS HONOUR:   What discretions – this may be a matter that comes up in the context of an expedited removal hearing but what discretions does the Supreme Court have in relation to the conduct of other matters?  I am not talking about the judicial review proceeding obviously.

MR NIALL:   No, I understand that, your Honour.  The Supreme Court makes the coercive powers order and also has powers to vary the coercive powers order, including, for example, by way of conditions that could operate to control the examination process which is undertaken.  For example, under this regime you have a sort of umbrella coercive powers order and then you have summons to witnesses.  The summons can either be issued by the court or by the Chief Examiner.  In the present case, it is issued by the Chief Examiner.  In other cases coercive powers orders have been subject to a limitation that the Supreme Court issues the summons, for example.

So the Supreme Court retains, within the life of the coercive powers order, significant capacity to oversee the exercise of coercive powers under the coercive powers order and that is obviously a highly relevant matter as to what actually happens ‑ ‑ ‑

HIS HONOUR:   Well, if the Supreme Court could actually make an order that means that the question of section 29(2), I think it is, would not arise?

MR NIALL:   It is possible that the coercive powers order could be varied potentially, so one could not rule that possibility out. 

HIS HONOUR:   Yes.  In other words, a coercive powers order can be shaped – we are not looking at the particular proceedings here at the moment, we are just looking at the more general – coercive powers order can be shaped in such a way that no intersection would be permitted to arise between an examination pursuant to the authority given by that order and a pending trial.

MR NIALL:   The coercive powers order could require that any summons be issued by the Supreme Court.

HIS HONOUR:   Yes.

MR NIALL:   Then the Supreme Court could entertain an application as to whether or not a summons should issue and that is a discretion, and that discretion could take into account factors including whether or not a trial of charges was listed or imminent or prospective.

HIS HONOUR:   In the particular case you have no position at the moment or are unable to say whether an application could be made to the Supreme Court to vary coercive powers or order it in such a way as to prevent that intersection occurring.

MR NIALL:   No, I have no instructions in relation to that, your Honour.

HIS HONOUR:   Yes, all right.

MR NIALL:   So it may be that the removal into this Court is the most expeditious and if that application is heard either Friday or Monday we would indicate to your Honour what the position of the Chief Examiner is,

but it may be that that is the most expeditious way to have the validity determined.

HIS HONOUR:   At the moment time is fairly pressing as I see from the materials which have been filed.  Our list is settled for February and it does not seem to me that this necessarily fits in with the IBAC matter.  I mean, there is a suggestion that somehow they could be dealt with together.

MR NIALL:   Yes, I am retained in that matter, your Honour, and there is no overlap.  Constitutional validity is not in issue at all in IBAC, no 78B notice.

HIS HONOUR:   I understand that, and it is a different Act anyway.

MR NIALL:   It is a different Act, and the provision – 29(2) does not have a mirror provision in the IBAC Act.

HIS HONOUR:   Yes, all right.  Well, on the basis that we proceed – I prefer to have everybody properly prepared and perhaps deal with it on Monday on that basis.

MR NIALL:   Yes, your Honour, thank you.

HIS HONOUR:   But on the assumption that we proceed with the expedited application for removal on Monday, would the most convenient course be to have the parties just agree between themselves after I rise a timetable and then I will sign off on that as a consent order?

MR NIALL:   Yes, your Honour.  We will do that, your Honour.

HIS HONOUR:   Yes, all right.  Thank you.  Mr Boyce?

MR BOYCE:   Yes, your Honour?

HIS HONOUR:   Are you happy to proceed on that basis?

MR BOYCE:   Yes, your Honour.

HIS HONOUR:   The summons will be listed for – I think we will make it the same time.  I am sorry it cuts into your lunch hours.

MR BOYCE:   Not at all, your Honour.

HIS HONOUR:   In fact what we might do, we might make it a little bit earlier.  We might make it 9 o’clock Perth time Monday, which will be midday your time, I think.

MR BOYCE:   If your Honour pleases.

HIS HONOUR:   So the summons be listed for 9 o’clock Western Standard Time on Monday and the parties are to agree a timetable for the filing of further submissions and any other relevant materials.  I have not read any affidavits at this stage, Mr Solicitor, so perhaps the question of interim orders can be dealt with then in the context of a particular application.

MR BOYCE:   Your Honour, that is so insofar as the affidavits are concerned.  We are a little concerned about the submissions that were filed and we would support therefore Mr Niall’s application, at least just on an interim basis, that the consent orders or the agreed orders, if I can put it that way, that we have – we could put before the Court, I think my learned friend said orally be made.

HIS HONOUR:   All right, what is the – you had better tell me the terms of the order now.

MR BOYCE:  

(i)The applicant be referred to in all court documents by way of a pseudonym, namely “XYN”.

(ii)Pursuant to section 77RH of the Judiciary Act 1903 (Cth), each document filed in the proceeding be marked confidential and not available for inspection, except by the Attorneys‑General of the States, the Northern Territory or the Australian Capital Territory, or the Attorney‑General of the Commonwealth, until further order.

HIS HONOUR:   Yes.

MR BOYCE:   Thank you, your Honour.  That would suffice, if your Honour was prepared to make those orders.

HIS HONOUR:   All right.

1.Application for removal will be listed for 9 o’clock Western Standard Time (12 o’clock Eastern Daylight Saving Time) on Monday, 18 January 2016.

2.The parties are to agree a timetable for the filing of further submissions and any other relevant materials.

3.The orders in (i) and (ii), as you have just set out.

We will adjourn then to next Monday.

AT 10.40 AM THE MATTER WAS ADJOURNED