Education Aust Pty Ltd v Commonwealth of Australia S95/1994 [1994] HCATrans 170 (9 December 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S95 of 1994

B e t w e e n -

EDUCATION AUSTRALIA PTY LIMITED

(formerly TAKAMA HOLDINGS PTY

LIMITED) trading as WESSEX COLLEGE

OF ENGLISH

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

Respondent

Office of the Registry

Sydney No S92 of 1994

B e t w e e n -

NOEL LING trading as AUSTRALIAN

TEFL CENTRE and AUSTRALIAN TEFL

COLLEGE

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

Respondent

Second Respondent

Applications for special leave to

appeal

MASON CJ

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 DECEMBER 1994, AT 11.11 AM

Copyright in the High Court of Australia

___________________

MR I.D. TEMBY, QC: If it please the Court, I appear with my learned friend, MS J.A. NEEDHAM for the applicant in the first of those matters. (instructed by De Rubeis & Associates)

MR B.W. WALKER, SC: May it please Your Honours, I appear for the respondent. (instructed by the Australian Government Solicitor)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR G.M. McGRATH for the applicant in the second matter called. (instructed by Frank & Woods)

MASON CJ: Mr Temby.

MR TEMBY: May it please the Court. For several years in the late 1980s the applicant, which trades as the Wessex College of English, specialised in conducting English language intensive courses for overseas students, and many of their pupils came from the Peoples' Republic of China. Government requirements were that students pay fees in advance, presumably to ensure that those coming to Australia were coming here simply to study.

The scheme became disrupted in the aftermath of the June 1989 events in Beijing, and thereafter virtually no students were admitted to Australia from China. Those who had paid but were denied visas, and some who had paid but never applied for visas, sought refunds and began to agitate in support of their cause.

Wessex took the position that it was under no contractual or other obligation to make any refund, and the same position was adopted by others in the industry. It will be appreciated that the unavailability of students from this vast market, as a result of the events I have mentioned and policy changes by government, had a disastrous effect upon the businesses conducted by the various colleges, and in consequence my client had to curtail its activities drastically.

The Commonwealth for its part decided to make payments to the students from China equivalent to the fees they had paid plus a gratuity of $A100, to accept from them assignments of the amounts that they were so refunded and then to pursue recovery against the various colleges. Legislation was passed to facilitate that process. The Act was the Overseas Students (Refunds) Act 1990 and, as the long title tell us, it was:

An Act to facilitate the refunding of payments made by overseas students -

and for other purposes.

Now, in order to make refunds, the facilitation of which was the purpose of the Act, it is of course necessary to know to whom the refund must be made and how much. And the statutory scheme to achieve the stated end commences with section 5, by which notice may be served on colleges as defined, and we are one of them, requiring them to provide information within a stated period as to particulars of overseas students enrolled from whom the institution has received money and to provide relevant documentation. So the first step under the statutory scheme is to obtain information from the colleges. The second step is taken by section 6, and regulations made thereunder. By section 6:

(1) The regulations may prescribe procedures for establishing the identity of an overseas student from whom it is proposed that the Commonwealth accept the assignment of a debt owed by an educational institution.

And that takes us to the regulations which are, for present purposes, the Overseas Students (Refunds) (People's Republic of China) Regulations. By clause 4, it is provided that:

For the purposes of subsection 6(1) of the Act, the procedures for establishing the identity of an overseas student -

who meets certain descriptions contained in (a) and (b) and:

(c) who applies to assign to the Commonwealth a debt; and

(d) from whom it is proposed that the Commonwealth accept the assignment of a debt;

are prescribed in these Regulations.

And then Your Honours will see that in clause (5) there are certain matters which are expressed in what seemed to be mandatory terms:

An overseas student:

(a) must provide.....

(i) a certificate -

meeting certain requirements.

(2) The certificate must be signed by the student.....

(3) The certificate must include -

certain matters. By subclause (4):

The authorised person must sign -

and then clause 5(4) concludes:

before a decision is made, on behalf of the Commonwealth, to accept or refuse the assignment of debt.

Now, the Act and regulations do not speak in terms of the making of payment to an overseas student who so applies but it is submitted, given the statutory purpose which is to facilitate the making of refunds, that the contemplation under the Act and regulations was that the assignment would be taken before a payment by way of refund was made.

So, having obtained information from the colleges, the Commonwealth then proceeds to go through certain procedures which, in our submission, are mandatory, are conditions precedent to the accepting of the assignment and to the making of the refund. And then, if one goes back to the Act, there are consequential evidentiary provisions. By section 7:

If, in proceedings to which this Act applies, it is established that the procedures prescribed for the purposes of section 6 were followed, the assignor's identity is taken, for the purposes of the proceedings, to have been established accordingly unless the contrary is proved.

And by section 8, there are certain provisions which facilitate proof.

The Commonwealth made refunds; it accepted assignments; it proceeded to make demand and then to sue Wessex and it was successful, and the judgment is for a sum which, with interest, is now something in excess of $3 million. It did not comply with what we submit are requirements imposed by section 6 of the Act and by the regulations and in the proceedings blithely said, "We do not rely upon the Act" as if the Act contained only enabling provisions of an adjectival sort.

The primary submission for the applicant, if special leave is granted and the appeal is fully argued, will be that section 6 of the Act and the regulations to which I have referred the Court, laid down a procedure which must be followed before a decision was made on behalf of the Commonwealth to accept an assignment - - -

GAUDRON J: Can we test that proposition, Mr Temby, by asking what would have happened if no regulations had been made under section 6?

MR TEMBY: If there had been no regulations made then it would not be the case that a mandatory scheme for the taking of assignments was laid down, Your Honour, and in those circumstances the Commonwealth could have proceeded to make payments otherwise.

McHUGH J: But your argument depends on the regulations abolishing the Crown's prerogative.

MR TEMBY: They do, Your Honour, but the regulations are made pursuant to a provision which enables a procedure to be laid down but does not require the procedure to be laid down; the procedure when laid down, being, however, it is submitted, of a mandatory sort. There is nothing novel about delegated legislation - - -

McHUGH J: No, but it would be a far-reaching proposition to think that a general regulation-making power was intended to authorise abolition of Crown prerogatives. One would not normally start with the notion that that was contemplated by the investiture of regulation-making power.

MR TEMBY: No. With respect, that may be right. It should, I suggest, be borne in mind that we are here considering conduct on the part of a litigant, that is to say, we are in the unusual situation that the litigant is also the lawmaker. It is the Commonwealth - - -

McHUGH J: It is not really, is it? Parliament is the lawmaker; Parliament with the advice and consent of the Crown.

MR TEMBY: With respect, of course that is right in saying that it is the Parliament that passed the legislation but delegated legislation is law, it is the Commonwealth which made or caused the regulations to be made. The Commonwealth is, at least in that sense, both lawmaker and litigant. The submission is that it has laid down a procedure which is required to be followed, and it is to be remembered, with respect, that we are here dealing with public funds, that is to say, the moneys that were being paid out were being paid out by way of grant, there being no obligation upon the Commonwealth to make payments, no obligation contractual or statutory. The Commonwealth chose to make these payments. It was dealing with public moneys by way of grant. It is submitted that it is to be imagined that there would be steps taken to ensure that the dispensation of public moneys in this way was attended by a degree of formality and assurance which might not be required in other circumstances.

The Commonwealth was, it is submitted, imposing upon itself obligations which were appropriate to be imposed given both the fact that public moneys were to be dispensed with in this way and given also the fact that the Commonwealth would be, if demands when made were not met, the party that sued for recovery. It is submitted that those circumstances which do not simply occur, they necessarily arise under the statutory scheme. The statutory scheme, one can see, contemplates the taking of steps, which we say are necessary steps; the acceptance of an assignment; the making of refunds and then litigation because all of that is contained within what the statute is saying.

Accordingly, it is Commonwealth dealing with public moneys by way of grant and in the guise of a potential litigant which, it is submitted, read together, make sense of the proposition that there should have been a fetter upon the conduct of the Commonwealth, although imposed merely by regulation.

MASON CJ: But I do not quite follow how you are putting it. I rather gathered from what you said to Justice Gaudron that you were disclaiming the proposition that section 6 achieved the elimination of the prerogative itself because if the regulations were not passed you conceded that section 6 would not operate of its own force to achieve that result. Now, are you suggesting that section 6 does achieve that result but conditionally only? That is, it abolishes the prerogative if regulations are passed but not otherwise?

MR TEMBY: Yes, Your Honour.

MASON CJ: But not otherwise?

MR TEMBY: Yes, Your Honour.

MASON CJ: That is the point, is it?

MR TEMBY: That is the point, yes. If it be thought that that is unlikely to be achieved by regulation, as Justice McHugh put it, the considerations that I have mentioned take away any degree of unlikelihood that might otherwise arise.

MASON CJ: It just seems to me to be an unlikely intention to attribute to the legislature that the prerogative should be abolished but abolished conditionally only.

MR TEMBY: The alternative would be to say that under section 6, although the word "may" is used, it is one of those occasions when it is used in a mandatory sense and I suppose that I should not too lightly abandon that proposition.

McHUGH J: But there may also be a serious question, may there not, if the effective subrule (4) was to affect the substantive rights of the Commonwealth, whether it is in fact authorised by section 6 which, after all, is providing for regulations for establishing the identity of people rather than affecting substantive rights.

MR TEMBY: Yes. With respect, yes, but only if in section 6 one lays stress which, we submit, would be undue stress upon the words "for establishing the identity" which are, of course, there. But we say it should be read together with the concluding words:

for establishing the identity of an overseas student from whom it is proposed that the Commonwealth accept the assignment of a debt -

that is to say, it is a step which is to be taken before the assignment is accepted which, in common sense, precedes the making of a payment by way of refund.

So far as grounds for special leave are concerned, may it please the Court, we rely upon these matters: the amount of money involved is not inconsiderable, as I have mentioned, in the order of $3 million which is certainly a lot from the viewpoint of a proprietary limited company; secondly, as I have mentioned, this is a scheme that relates to the dealing in public moneys; thirdly, it relates to Australia's overseas relations; fourthly, it relates to the conduct of the Commonwealth which was unusually both litigant and lawmaker in relation to the regulations. It is submitted that the Commonwealth ought be a model litigant and the Court will not lightly accept the situation where the scheme it has laid down is flouted if the Court takes the view that the decision appealed from is of doubtful validity as, it is submitted, it is. May it please the Court.

MASON CJ: Thank you, Mr Temby. Mr Jackson.

MR JACKSON: Your Honours, the issues in relation to which special leave is sought in our case concern two things. The first is the combined operation of regulation 5 and section 6 which Your Honours have heard about, I wish to say a little more about in just a moment. The second thing concerns the operation of section 8 of the Act. May I turn, first, to section 6 and regulation 5?

Your Honours, the precise issue which arises under regulation 5 involves two aspects. The first is the failure to comply with the requirement that there be a certificate signed by the student. That is regulation 5(2). The second thing concerns the fact that there was no signing of the certificate by an authorised person before the making of the decision to accept or refuse the assignment. That is regulation 5(4).

Now, Your Honours, as Your Honours have heard - and I will come back to those provisions in just a moment - the Act is concerned with circumstances where an overseas student assigns a debt to the Commonwealth, the debt being due by an Australian educational institution, and the Act is concerned with proceedings by the Commonwealth to recover the debt in circumstances where, perhaps, in the ordinary course of events, the student is not in Australia. Your Honours will see the definition in the Act of proceedings to which this Act applies, and that, Your Honours, is the last definition in section 3. They are proceedings that take place at a time when the overseas student who assigned the debt is not in Australia.

Now, Your Honours, an issue in proceedings of that kind, of course, is likely to be the identity of the student assignor. Section 7(1), if I could take Your Honours to that for just a moment, provides that:

If, in proceedings -

of that kind, that is:

proceedings to which this Act applies, it is established that -

certain procedures were followed, and they are the procedures prescribed for the purpose of section 6 -

the assignor's identify is taken, for the purposes of the proceedings, to have been established -

and then, in addition to that, that is proof of the following procedures being sufficient, Your Honours will see that proof of the fact that the procedures were followed is itself facilitated by section 7(2).

Now, Your Honours, the procedures to which reference is made are those contemplated by section 6(1), if any. I say "if any", Your Honours, because it may be - and Your Honours will see section 6(2) - that the procedures may, in effect, differ from country to country and the opening words of section 6(1) speak in permissive terms that procedures may be prescribed.

But may we refer Your Honours to three features of section 6(1). The first is, Your Honours - and this is in answer to what Your Honour Justice McHugh said to my learned friend - it is not the general regulation-making power that is being spoken of in section 6(1), it is a specific power to deal with a specific matter, a matter to which the legislature has directed its attention.

The second thing, Your Honours, is that regulation 6(1) speaks of the regulations being able to "prescribe procedures for establishing the identity", etc. Now, Your Honours, the term "prescribed" is, of course, one commonly used in relation to the conferring of a regulation-making power but the precise meaning of the term in particular situations will no doubt depend upon the context. It is not just a word apt to describe the conferral of power, it is also a word apt to describe the content of the power conferred, that is, to "prescribe procedures", meaning make procedures mandatory if appropriate or not mandatory if otherwise appropriate or, Your Honours, to have procedures that contain, as the regulations in question do here, both elements.

Your Honours, the third feature we would say in relation to it is this, that Your Honours will see - - -

GAUDRON J: Except that the relevance seems to be primarily evidentiary and not substantive when you look at sections 6 and 7 together.

MR JACKSON: Your Honour, could I just say this, that if Your Honour looks at section 6(1), one sees, really, the third element of it and that is that it contemplates that the procedures will be procedures to be gone through before the assignment is taken.

GAUDRON J: But there is nothing to suggest invalidity if the procedures are not followed.

MR JACKSON: Your Honour, in our submission, there is. Your Honour, I need to add a qualification to that and may I do that in just a moment. But what Your Honour will see, if I could just take Your Honours to section 6(1) for the moment, is that it speaks of regulations:

for establishing the identity of an overseas student from whom it is proposed that the Commonwealth accept the assignment of a debt -

et cetera. That involves with it, Your Honours, a temporal element and the temporal element being that the procedures, if provided for, need to be gone through before the acceptance of the assignment. Now, Your Honours, the qualification I was going to add was this: true it is that the procedures in particular aspects may be ones which are directory rather than mandatory or they may be both, but it is a question whether there has or has not been compliance with them. And section 6(1), read with section 7, deals, of course, with evidentiary matters but not just with evidentiary matters, in our submission.

McHUGH J: But your argument, really, has got to go so far, has it, to contend that section 6 is concerned to impose limitations on the Commonwealth's capacity to take assignments as opposed to a provision empowering proof of assignment?

MR JACKSON: I put it a little differently from that, Your Honour. What we would submit is that section 6(1) is a provision which empowers the making of regulations which restrict the way in which there may be assignments entered into by the Commonwealth. Your Honour, it may be, in particular cases, the particular regulations are ones that may or may not have to be complied with strictly because of the construction of them but it is a question of the ambit of the power conferred. The power conferred, in our submission, is wide enough to permit the making of regulations having a mandatory effect. Not surprisingly, Your Honours, if I can put it that way because if one is talking really about students who are overseas, and the population of China is not actually small, Your Honours, one has to have some form of identification of persons who are not going to be there at the trial.

McHUGH J: But on your argument if it were successful, even if a student happened to be here and the Commonwealth want to call that student for some purpose of proof, he could not ask the student any questions about these matters?

MR JACKSON: If there were regulations that applied to that student. But there are not necessarily, Your Honour. I should say, Your Honours, without taking undue time over it, that there are two sets of regulations: one that applies specifically to overseas students from China; ones that apply to other students. It would be perfectly possible for there to be regulations that only apply to people from China and perhaps another set to people who were in Bosnia-Herzegovina. In each case, there may be difficulties and the circumstances provided for by the regulations may be different.

Your Honours, could I move then - I will do so very quickly - to the regulations, to regulation 5 itself. Perhaps I should say one starts from regulation 4 and Your Honours will see that the words of regulation 4 follow exactly the words of section 6 and that is:

For the purposes of subsection 6(1) of the Act, the procedures -

are prescribed in these regulations.

From there, one goes to regulation 5. Could I invite Your Honours' attention to these things: first, regulation 5(1)(a) Your Honours will see the words "must provide"; then 5(1)(b), in fairly stark contrast, "may provide" something else. Then one comes to regulation 5(2) which is the requirement for execution in the presence of an independent person. Your Honours will see again the word "must". In regulation 5(3), the detail of the certificate: "The certificate must include", and then, Your Honours, when one goes to regulation 5(4), Your Honours will see that, "The authorised person must sign" and then the temporal element comes in again:

before a decision is made, on behalf of the Commonwealth, to accept or refuse the assignment of the debt.

Now, Your Honours, could I say in relation to those provisions that the situation, in our submission, is similar to the observations one sees in a number of cases. Your Honours, I do not really think I need to take Your Honours to the detail of it. Could I give Your Honours one reference: Cudgen Rutile (No 2) v Chalk, (1975) AC 520, at page 533, where the statement in the State of New South Wales v Bardolph is picked up, that:

"When the administration of particular functions of Government is regulated by statute and the regulation expressly or impliedly touches the power of contracting, all statutory conditions must be observed and the power no doubt is no wider than the statute contemplates."

It is a question of construction in the end, Your Honours. In our submission, the view taken in the courts below that the provisions of the regulations were facultative only and had no mandatory operation is not correct as a matter of interpretation of them.

Could I give Your Honours the references to those passages? Mr Justice Beaumont, page 60, commencing at line 35, going to line 20 on page 61; and the Full Court, Your Honours, page 97, line 30, going through to page 98, line 35. Your Honours, those views are really the other possible interpretation of the provisions. In our submission, they do not sufficiently take account of two features: first, the underlying hypothesis that the student will not be in Australia - and I would refer Your Honours to regulation 4(b) which makes that the circumstance. Your Honours, I should have mentioned that before. If Your Honours look at regulation 4(b) Your Honours will see that it refers specifically to the fact that the student is not in Australia.

GAUDRON J: But that is for the purposes of proceedings and once you rely on that it does tend to emphasise the evidentiary nature of the regulations.

MR JACKSON: No, I am sorry, Your Honour, it is describing the persons to whom the regulations apply. It says:

the procedures for establishing the identity of an overseas student -

who satisfies several criteria, one of them being:

who is in the People's Republic of China -

are these. So, the regulations are not speaking about, for example, a person who is outside.

Your Honours, the second feature, we would submit, is this in relation to the Full Court's reasons and that is they do not really give sufficient weight, if I may say so with respect, to the actual language of the regulations.

Your Honours, could I move then to the second aspect with which we wish to deal and that is the question of section 8 of the Act. Could I take Your Honours to the terms of section 8 for just a moment? What Your Honours will see is that section 8 provides that:

In proceedings to which this Act applies -

and Your Honours have seen the definition of that phrase earlier -

a statutory declaration, by the overseas student who assigned the debt, that complies with the requirements of the Statutory Declarations Act 1959 is prima facie evidence of the facts stated in the declaration.

Now, Your Honours, various statutory declarations satisfying the description in section 8(1), that is "by the student who assigned the debt" were relied on. Your Honours, section 8(3) provides that:

If:

(a) the Commonwealth gives.....reasonable notice that the Commonwealth proposes to rely on -

such a declaration, the deponent cannot be cross-examined unless reasonable notice, in that regard, has been given. Now, Your Honours, notice of the relevant kind, that is requiring attendance for cross-examination of the deponents, had been given.

Could I give Your Honours the letters in that regard that are material which I am afraid are not in the application book. Your Honours, the first letter is one of 17 February 1993 from the applicants' solicitors to the Australian Government Solicitor. The relevant part is on page 3. It is the fourth paragraph on the page. It should, I think, Your Honours, have a line beside it on Your Honours' copy. Your Honours, it refers to section 8(3). I shall not read it out. But Your Honours will see it makes the position clear on the part of the applicants' solicitors.

The reply, Your Honours, is the next document, 22 March, and the relevant part of that is the last paragraph on the first page, going over to the top of the next page. Might I invite Your Honours to notice one thing about that last letter and it is the first part of the paragraph at the bottom of the first page and that is where it says:

The second question.....is whether I intend to tender any statutory declaration.....and then rely on s.8(1).....to give the declarants assertions the force of prima facie evidence.

Your Honours, the concept of tendering, then relying on, seems to involve in the way in which it is put and the way in which, in fact, the case was decided relevantly by the primary judge seems to treat the issue as though there is some kind of election about whether section 8(1) operates in circumstances where a document of the relevant kind has been admitted. Your Honours will see that section 8(1) applies of its own force to give the document particular weight once the document has been admitted; no question of election involved.

The applicants contended that if such a statutory declaration were to be relied on, they were entitled to cross-examine the deponents but that concept was rejected by the primary judge, as Your Honours will see at page 53, line 16, through to line 45 on the page and also, Your Honours, at page 60, lines 11 to 32. Your Honours, the Full Court put it a little more fully at page 99 at the bottom of the page, through to page 101, about line 26.

Your Honours, what we would submit is that the approach taken gives insufficient weight to two things. The first is the effect of section 8(1) itself which operates upon the document and, secondly, to the relationship between section 8(1) and section 8(3). The condition of the operation of section 8(1) is that it comes in circumstances where section 8(3) also applies.

Your Honours, could we submit, finally, these things: that the Act and regulations operate in cases like this in circumstances where the assignor is not in Australia at the time of the trial; special procedures are provided for which alter, in favour of a government party, the ordinary rules of evidence against the subject and it is important, in the particular case, and generally, in our submission, that the Act and regulations be properly interpreted and applied. Your Honours, those are out submissions.

MASON CJ: Thank you, Mr Jackson. Mr Walker, you need not trouble about the arguments presented for the applicants except the section 8 point.

MR WALKER: Your Honours, the section 8 point, as my learned friend, Mr Jackson, has pointed out, does not depend on the regulations because section 8(1) has an effect according to its terms.

So far as this Court's discretion for special leave is concerned, it is therefore, in our submission, material to assess the importance in the proceedings of the statutory declarations. The primary judge starts on page 11 to canvass the evidence in the case and then, on page 14, in particular, to canvass the evidence of the procedures followed in procuring the execution of the deeds of assignment.

On page 15 there commences a list of documents from what His Honour describes as "Exhibit `MFI 1' in the case of Liu Jian Wei" with a refund claim form, a list which eventually extends, as Your Honours will see, to include matters such as the identity card on page 20, the deed of assignment, and then item 11 on page 21, the statutory declaration. Your Honours see how His Honour paraphrased what His Honour presumably considered the relevant contents of that statutory declaration.

Those facts, in our submission, are facts which did not require the statutory declaration to be proved and which it may safely be inferred from the other evidence to which His Honour had already adverted in canvassing the whole of what was merely contents of an exhibit, a bundle of documents, clearly was proved by the execution of the deed of assignment, the receipt of the funds and the like, the identity card alone, for example, as to identification.

When one then comes to the reasoning of the primary judge concerning the statutory declaration itself, page 60, there may be an expression in that which we would not seek to justify as an all-sufficient explanation of why section 8(3) did not matter, and I refer to the words which His Honour has underlined, "for the purposes of the Act". In our submission, that is at the very least an ambiguous expression which does not, in terms, explain why there is a difference, as my learned friend, Mr Jackson, would put it, in the way in which a document is used once it is tendered. We would accept that if the matters had stood there, there would be, at the most, a slight mystery about what that phrase means. That does not, however, of course, answer the proposition that nowhere in His Honour's reasoning does one find the statutory declaration used as an important, let alone as an essential plank in the evidence towards the findings that His Honour made on propositions of fact for which the Commonwealth contended without a shred of evidence to the contrary from the respondents.

One then goes to how the Full Court dealt with it and, in our submission, Their Honours did not adopt the same approach of describing a use for the purposes of the Act and we accept that there is no easy answer to the question of what does it mean to tender for the purposes of the Act.

However, in our submission, the Full Court, in its reasoning commencing on page 98 and going over to page 101, deals with section 8 in a manner which satisfactorily explains why it does not matter for this Court to attend to those propositions for the purposes of these proceedings as they were run and decided. That is because there is nothing in section 8 which suggests that this piece of paper, a statutory declaration or, to be quite precise, a purported statutory declaration, may not be used for the full range of possibilities which both the common law and relevant applied statutes would have permitted it to be used regardless of contests about whether it was a statutory declaration or whatever else. In other words, section 8 merely describes one quality it may have upon being tendered in the proceedings. That quality is that it can by dint of a process of reasonable notice and a lack of reasonable notice can be accepted as prima facie evidence of the assertions in it without needing to satisfy any of the other provisions of the adjectival law, both common law and statutory, by which use could have been made of it.

It would be most odd, in our submission, if a provision, namely section 8, which so plainly benefits the Commonwealth forensically, by a side blow removes from the Commonwealth the ability to rely on those pieces of paper by other laws pre-existing section 8 and which clearly continue to operate in the court, adjectivally, during the pendency of the proceedings. These documents were, of course, considered by His Honour to be admissible at common law.

For those reasons, in our submission, whatever else may be said about section 8, it did not matter in this case unless it could be argued that section 8 displaced the common law and the other statutory provisions - obviously the Evidence Acts - which may have governed or affected the admissibility without cross-examination of the statutory declarations. There can, in our submission, be no sensible prospect of success for such an argument given the manifest intention of the whole of this Act to bestow on the Commonwealth forensic advantages. It is the forensic advantages which is conjured up by the word in the long title "facilitating". One facilitates a refund by improving the prospects of being recouped the money outlaid by way of refund in proceedings to compel that recoupment. The forensic advantages which are the real thrust of the Act are obviously an ideal way of facilitating refund because it promises to the Commonwealth the possibility of appropriate recoupment.

Your Honours, section 8 clearly regulates something which is adjectival, in other words, clearly regulates something which merely subserves observance of procedural fairness in a proceeding. It has nothing whatever to do with the substantive rights which are assumed in this Act already to have been created before section 8 comes into operation. Section 8 applies only after proceedings have been commenced and are being heard. So that the matters which were adverted to on the first issue which I am not otherwise addressing concerning assignment and identity and the like have all been assumed in favour of the Commonwealth by the time section 8 comes into play.

All the more curious, in our submission, the notion that section 8 has deprived the Commonwealth ex hypothesi in receipt of a valid assignment from the appropriate person, payment having been made in consideration of it, of the ability to prove at common law whatever matter was germane in the statutory declaration by tender of the statutory declaration without cross-examination, in our submission, coupled with the fact that it cannot be shown that the result in this case was one influenced by the facts which His Honour Mr Justice Beaumont has paraphrased from the statutory declarations. The case is not a fit one for special leave. May it please Your Honours.

MASON CJ: Yes, thank you, Mr Walker. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I say two things in response to the submissions that have been made by my learned friend. The first is that it is impossible to say what course might have been taken by the primary judge if the primary judge had had the advantage of seeing cross-examined some of the persons who were said to have made the statutory declarations and some of the persons who, because of that, were said to be the persons who had assigned these things to the Commonwealth because Your Honours will see, if I could just go for a moment to page 23 and through to page 27, the evidence that was given was evidence which, in a sense, had a pro-forma approach and a question which the primary judge had to decide was whether that evidence, although the deponent to the main affidavit could not recall particular cases, whether that should or should not be accepted.

Now, it may well have been germane to the acceptance of that to decide in relation to particular persons who were cross-examined that the judge was not satisfied but whether there had been an assignment given, for example. Your Honours, it would not be very difficult, one would think, for persons becoming aware of assignments of this kind to endeavour to engage in some kind of fraud. That is the first thing.

GAUDRON J: Did you object to the tender of these declarations?

MR JACKSON: Yes, Your Honour.

GAUDRON J: Or you just asked - yes, you did.

MR JACKSON: Your Honour, if one looks at the original transcript, the issue bubbled and boiled, bubbled and boiled, and there was objection after objection.

That is the first thing, one could not decide what the result would have been had there been cross-examination. The second thing is, Your Honours, it is hardly surprising, if one looks at the underlying circumstances in which the Act is to operate, that if a statutory declaration is to be used at all then the Act provides not only for its effect but also for the circumstances in which it is to be used.

McHUGH J: But you have to say that section 8 is a code in so far as statutory declarations are concerned.

MR JACKSON: So far as statutory declarations given by the overseas student in proceedings where this overseas student is overseas, Your Honour, and within that, yes, of course. But, Your Honours, what it does do is to say, in those limited circumstances, a statutory declaration and the subject-matter of its contents is not - - -

McHUGH J: I know, but it is only prima facie evidence of it?

MR JACKSON: Yes, of course, Your Honour. But all I am saying about it is that what goes with having the ability to use it as prima facie evidence is the fact that there is the condition which is summarised, in effect, in section 8(3). One has one, and with it comes the other. Certainly, there is no especially unusual reason why, in relation to a particular narrow subject-matter, there should not be a statutory provision which not only provides for the effect of what is to happen in particular evidentiary circumstances, but the preconditions to the exercise of power.

MASON CJ: The Court will take a short adjournment to consider the course it will take in this matter.

AT 12.03 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.13 PM:

MASON CJ: The section 8 point apart, the decision in each application is not attended with sufficient doubt to justify the grant of special leave. As to the section 8 question, we are not persuaded that the outcome would have been at all different had the statutory declarations not been tendered. The cases are therefore not appropriate for the grant of special leave and the applications are refused.

MR WALKER: I seek costs, may it please Your Honour.

MASON CJ: You do not oppose that?

MR TEMBY: There is nothing I can say, if Your Honour pleases.

MASON CJ: The applications are refused with costs.

AT 12.14 PM THE MATTER WAS ADJOURNED SINE DIE