Pirone v Director of Public Prosecutions ( Commonwealth) A35/1995 [1995] HCATrans 418 (28 November 1995)

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A35 of 1995

B e t w e e n -

QUIRINO MARIO PETER PIRONE

Plaintiff

and

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

Respondent

Summons for directions

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 28 NOVEMBER 1995 AT 9.14 AM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC: I appear for the plaintiff, may it please your Honour. (instructed by Camatta Lempens Pty Ltd)

MR C.P. O'DONNELL: May it please your Honour, I appear for the defendant. (instructed by M Rozenes, Director of Public Prosecutions (Commonwealth))

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: I appear for the Attorney-General of the Commonwealth, intervening. (instructed by the Australian Government Solicitor)

MR TILMOUTH: May it please your Honour, this is my application for questions to be reserved to the Full Court.

BRENNAN CJ: What questions? I mean, what questions are alive on the pleadings?

MR TILMOUTH: The question of whether the Australian Federal Police ACT or Part VA is a valid enactment of the Commonwealth.

BRENNAN CJ: I have not seen any defence.

MR TILMOUTH: I think there was a defence, your Honour, in - - -

BRENNAN CJ: In the District Court.

MR TILMOUTH: Yes, in the amended - - -

BRENNAN CJ: And contained in an agreed statement of facts which was annexed to your statement of claim. Scarcely a propitious start for this application, Mr Tilmouth.

MR TILMOUTH: That is true, your Honour. We were endeavouring to cut down the number of documents - - -

BRENNAN CJ: You can endeavour to cut them down but you must identify the issues and have them in a form satisfactory for consideration by the Court.

MR TILMOUTH: Yes, I accept that and, if the Court pleases, that amended defence could be placed in the documents. Did your Honour receive some draft questions reserved yesterday that we sent over?

BRENNAN CJ: I did, yes.

MR TILMOUTH: They summarise the live issues, at least potentially fit for consideration of this Court. The validity of the legislation: whether it is reasonable; whether it involves an unjust acquisition and whether there is an infringement of Part III of the Constitution, the judicial power.

HIS HONOUR: Mr Tilmouth, I can say frankly that unless this proceeding is brought into a satisfactory form, I do not propose to reserve anything for the Full Court on these documents.

MR TILMOUTH: I can understand your Honour's difficulty with respect to the matter of form but - - -

HIS HONOUR: Let us start at fundamentals. There is a pleading in the District Court which raises the question of whether or not Part VA applies to the case of your client.

MR TILMOUTH: Yes.

HIS HONOUR: Are those issues resolved?

MR TILMOUTH: No, they are not.

HIS HONOUR: And are questions raised by those defences questions which could possibly affect the validity of the legislation?

MR TILMOUTH: Yes, in our submission.

HIS HONOUR: So, this Court is being asked to consider whether the legislation is valid according to considerations that have not yet been determined?

MR TILMOUTH: No, not quite, with respect. There is a parallel set of agreed facts have been filed in the District Court which raise precisely the same issues and until the question of coming to this Court was approached, the idea, in that court, was to argue them as pure questions of law. There is no outstanding fact that needs to be proved in that court and the statement of agreed facts is identical to the one filed in this Court. But since they raise constitutional issues, the application was made in this case for the questions to be reserved.

Your Honour, I did understand that the defence was annexed to the statement of agreed facts.

HIS HONOUR: Defence in which court?

MR TILMOUTH: The defence in the District Court.

HIS HONOUR: What about this Court?

MR TILMOUTH: That is not in the papers at this stage.

HIS HONOUR: No.

MR TILMOUTH: But, again, as I understand it, a defence was not filed simply to avoid paperwork at this stage.

HIS HONOUR: I do not know what the reason is but there is no issue. There is a statement of claim in a form which I regard as unsatisfactory, with no defence and no demurrer and a request to refer questions to the Full Court.

MR TILMOUTH: Yes. Well, I accept that issue as a defence in this case, your Honour. As I understand it, the matters raised are simply denied and that would be a matter of form that could be easily remedied by the filing of a simple defence to that effect. But the issues, in our submission, clearly arise on the pleadings and the statement of agreed facts.

HIS HONOUR: And those are issues which, in the circumstances of this case, Part VA does not apply.

MR TILMOUTH: That is true; the difficulty being that factual cases will vary but it still raises very important issues because this legislation applies not only to the Australian Federal Police employees, whether they are police officers or clericals like the plaintiff, but they are very similar provisions, in fact practically identical - - -

HIS HONOUR: They may be.

MR TILMOUTH: - - - - applying to all Commonwealth public servants.

HIS HONOUR: They may be but this Court is not going to answer the question of whether or not a law is invalid in the circumstances of your case.

MR TILMOUTH: With respect, it was drafted that way because in the end result the question of when the offences were committed, when the entitlements accrued and so on, divulged down to the individual case but, essentially, what is being sought is questions of law to be resolved on the legislation itself which is of general application.

HIS HONOUR: If the question had been raised, "Is this Act valid?", or "Is this part of the Act valid?", and there had been a demurrer, "This Act is valid", then one can understand that as a matter of law the question of validity of the Act could be determined subject, however, to the question of it being accepted that the provisions of the Act apply to the case in hand. Now, as I understand it, that is not the question that is sought to be asked. The question that is sought to be asked is whether or not the Act, though valid generally or in some circumstances, is not applicable to or is not valid in relation to the application of itself to the facts of this case. That is not a question of law for determination by the Court.

MR TILMOUTH: May it please your Honour, if it is a question of in this case, I accept that. Perhaps that drafting was unfortunate because - for the reasons I have just mentioned, that in the end result there is an examination of the particular facts as agreed which is necessary but what we meant to be seeking to have stated was general questions applicable to, effectively, all Commonwealth public servants. But those matters, may it please your Honour, in my submission, are matters of form.

HIS HONOUR: They may be but they are not matters which lead to the making of an order of the kind that you seek at this stage.

MR TILMOUTH: No, I can understand that but if your Honour was otherwise disposed to think the questions were important enough to reserve, that could be a matter, could I suggest respectively, of having leave to file a defence and simply amending the questions to be reserved to remove the individual aspects and to emphasise the fact that it is of general importance.

HIS HONOUR: Mr Tilmouth, I would not reserve a question on the form of the pleading as it now stands. To start with, it is a most unfortunate form of pleading which seeks to rely upon facts contained in an agreed statement when the agreed statement contains contentions set out in pleadings in another court, particularly when those contentions relate to the applicability of the very law, the validity of which is sought to be challenged. So, the statement of claim does not suffice for this purpose.

Even if a defence were filed now, it would not remedy that problem. If a defence is filed and there is a pure issue of law arising, it may be a case in which it would be appropriate to reserve questions but I do not see it at this stage. It is not the function of the Court, of course, to draw the pleadings for the parties or to raise the issues.

MR TILMOUTH: No, I understand that, with respect. All I could say, may it please your Honour, is the parties had worked very hard on the statement of agreed facts to avoid any questions of fact finding and in order to cover the field of the issues likely to arise in this case.

HIS HONOUR: Perhaps they needed to work a little harder.

MR TILMOUTH: Yes.

HIS HONOUR: I understand the points that you seek to make. I will hear what your opponent has to say and I will hear what Mr Solicitor has to say about the procedure to be adopted.

MR TILMOUTH: May it please your Honour.

MR O'CONNELL: May it please your Honour. I can say this, that the defendant would be in a position to file a defence as soon as possible if that is the procedure that is regarded by your Honour as appropriate in this case.

HIS HONOUR: Raising what?

MR O'CONNELL: Really, a general denial of the issues that are raised in their statement of claim.

HIS HONOUR: What, denial of fact?

MR O'CONNELL: A denial as to the points of law that are raised essentially, your Honour.

HIS HONOUR: Would you demur?

MR O'CONNELL: Yes, we would, yes.

HIS HONOUR: And on what are the facts? What facts in the pleading do you take to be now alleged?

MR O'CONNELL: I am sorry?

HIS HONOUR: What are the facts that you take to be alleged by the statement of claim at the moment, having regard to the pleadings in the District Court which are in the agreed statement?

MR O'CONNELL: Essentially, the constitutional validity of this particular provision in the Federal Police Act, your Honour.

HIS HONOUR: That is a question of law, is it not?

MR O'CONNELL: That is as I understand the issue that is sought to be raised by my learned friend and that is certainly the issue that the defendant would be demurring to, as it were, and filing a defence in relation to. It is not really the defendant's contention that this Court should be concerning itself with matters of fact. So, your Honour, I can say that the defendant would be in a position to file that defence but the defendant is really in your Honour's hands as to which course your Honour decides to adopt; whether to retain the matter in this Court or to remit it to the Supreme Court, either on the constitutional issue or on questions of fact, if they need to be determined first and applicability of the legislation to this particular case. If those need to be decided first, in your Honour's view, then the defendant certainly does not cavil with that.

HIS HONOUR: It is a question of whether the proceedings are in a form which is satisfactory for consideration by any court at the moment. I think I understand what you are saying.

MR O'CONNELL: May it please your Honour.

HIS HONOUR: Mr Solicitor, have you any submissions?

MR GRIFFITH: Your Honour, we agree there is an important issue underneath this material. We had taken it, your Honour, that matters pleaded in the amended defence in the District Court really were not being pursued and that the issues of fact were essentially those on pages 1 to 4 of the statement of facts which have been filed but I quite see your Honour's - - -

HIS HONOUR: That may be, Mr Solicitor.

MR GRIFFITH: - - - unanswerable point in commenting on that, your Honour, and the position of the Attorney is that if in appropriate form this issue is identified, it does seem to be one of general importance.

HIS HONOUR: Well, it may be, depending upon the issue, the question of law that is sought to be raised. The question of validity must depend, one would have thought, as to whether or not the provision was valid at the time that it emerged from the legislative process, irrespective of its application to a particular case. But that is not, seemingly, the way in which this case is sought to be presented.

MR GRIFFITH: No. It is being certainly presented in its application to this plaintiff, your Honour. Does it have a valid operation, does it constitute an acquisition, et cetera. But, your Honour, perhaps the simplest thing would be if the plaintiff were to replead with a straight pleading.

HIS HONOUR: As at present advised, Mr Solicitor, I propose simply to dismiss the application and the parties can take whatever course they see fit.

MR GRIFFITH: Yes. Well, we are just a peripheral party, your Honour, so no doubt we could become involved in any further process.

HIS HONOUR: Mr Tilmouth, you can understand the problem that - - -

MR TILMOUTH: I think I have understood that, may it please your Honour. Could I inquire, with respect, whether your Honour sees one of the difficulties as being that the key fact should have been pleaded in the statement of claim rather than just left in a - - -

HIS HONOUR: I think that is the matter of form. That is the merest matter of form but it is an important matter of form because this Court should not, in its Full Bench, be required to plough its way through sundry documents in order to discover what issues, if any, are for its determination. So that, as a matter of form, I do not think that is satisfactory.

The next thing is that the questions of fact, if any, which are relevant to be raised in this issue, must be determined, one would have thought, by a court other than this Court. If the matter is in this Court then the matter must be determined on the basis of facts which are conceded or found.

The third thing is that if it is a question of the validity of a legislative provision, it cannot really turn upon the facts of a particular case unless one is saying that the legislative provision must be read down in a way which permits the facts of a particular case to fall outside it. Now, on reading the documents at the moment, it is impossible to understand which particular proposition is sought to be advanced. If it is a question simply of validity in the broader sense, one would not have thought that any facts are material. But, in that event, there could be an allegation that there is a proceeding pending in which the Act is being invoked against you seeking a declaration that the Act is invalid, full stop, and a demurrer to that. There would not be any question of facts involved.

These are all matters for the parties to consider the way in which they wish to raise the issues. It needs a lot of refinement and a lot of consideration of the points by points resolution of the conflict.

MR TILMOUTH: Yes. It was the first point that I was wanting to be sure that I understood your Honour on. May it please your Honour.

HIS HONOUR: Yes, very well. I dismiss the present application. I take it there is no application for costs?

MR O'CONNELL: No, may it please the Court.

AT 9.30 AM THE MATTER WAS CONCLUDED