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High Court of Australia Transcripts |
Registry No C2 of 1995
In the matter of -
An application for writs of Prohibition against THE AUSTRALIAN SECURITIES COMMISSION
First Respondent
ARTHUR WILLIAM WALLWORK
Second Respondent
JONATHAN PETER CADDICK
Third Respondent
Ex parte -
ABORIGINAL LEGAL SERVICE LIMITED
First Prosecutor
BRUCE ROBERT MILES
Second Prosecutor
GAUDRON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 9 OCTOBER 1996, AT 2.16 PM
Copyright in the High Court of Australia
MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: May it please the Court, I appear with my learned friends, MR H.C. BURMESTER and MR C.M. ERSKINE for the respondents, all of them. (instructed by Australian Government Solicitor)
HER HONOUR: Thank you.
MR GRIFFITH: Your Honour, our numbers will be virtually proportional to the length of our address.
HER HONOUR: Thank you, Mr Solicitor. Yes, Mr Corr.
MR CORR: Yes, your Honour. Is your Honour aware of the history of this matter?
HER HONOUR: Well, it is not a happy history, is it?
MR CORR: No, it has taken some time.
HER HONOUR: That seems to be your major difficulty in this matter, does it not?
submitting that if that goes ahead then all the rights of the prosecutors have disappeared.
HER HONOUR: Pursuant to what legislative provision is the report published or is the report to be published?
MR CORR: I believe it is under section 17 of the Australian Securities Commission Act. It is section 18, my learned friend informs me.
HER HONOUR: To whom?
MR CORR: The report would be published to the appropriate minister who is in this case the Treasurer and the Treasurer may do with it whatever he so wishes. In this case it is quite likely that there would be a tabling of that report in Parliament. I understand that that has been the procedure in the past. So, as I understand the matter, your Honour, there are no further investigations on foot, there are no prosecutions, there are no civil actions on foot. It is purely publication of the report. We would be submitting that there is a real point of law which needs to be determined, that point which his Honour Justice McHugh originally referred to the Full Court about the applicability of the territories power to the ability of the Australian Securities Commission to investigate matters and that the balance of convenience is strongly in favour of the granting of an interlocutory order.
HER HONOUR: But why would the publication be any different from the investigation? Why should we make this leap at this stage?
MR CORR: The investigation may have gone on in various matters but the findings have not been entered into the public arena. I think a similar situation to that which occurred in Ainsworth v Criminal Justice Commission.
HER HONOUR: They had it to the public arena there.
MR CORR: Yes, exactly. There the Court held that there had been a breach of natural justice in the persons not being able to say something before that occurred. We would say that up until the publication of the report the prosecutors in this case, or Ainsworth in that particular case, had a certain standing in the community which was, or in this case, could be damaged by the publication of a report.
HER HONOUR: The Aboriginal Legal Service?
MR CORR: Yes.
HER HONOUR: And - - -?
MR CORR: Bruce Robert Miles who is the second prosecutor.
HER HONOUR: How does it follow that, for example, the Aboriginal Legal Service has an interest in protecting what is published?
MR CORR: That there are findings adverse to - they have been informed by the Australian Securities Commission that there had been findings adverse to them made in that report; that they were, in fact, provided with a draft of the report and asked to comment on those findings.
HER HONOUR: Yes, but the interests of a corporation in its reputation are quite different from the interests of an individual in his or her reputation.
MR CORR: Yes, your Honour, but they still do have an interest in protecting that reputation.
HER HONOUR: What is that interest?
MR CORR: Their general standing, their ability to apply for grants from various bodies, both Commonwealth and State, and also to receive donations. The Aboriginal Legal Service is able to receive donations from persons to carry out its various functions. It receives a large amount of money from grants from, particularly the Aboriginal and Torres Strait Island Commission. If a report is published which has findings adverse to them, that matter may be taken into account in any future grants made to the Aboriginal Legal Service. Its existence could be severely damaged by not being able to get particular grants and so forth.
HER HONOUR: What is Mr Miles' interest?
MR CORR: He is the principal solicitor of that organisation, and that there are also findings, I believe, adverse to him, contained within the report.
HER HONOUR: How do you know that?
MR CORR: On the basis of the report having been provided to the prosecutors by the Australian Securities Commission, and that there were findings adverse, generally, to the conduct of the Aboriginal Legal Service in there, which also reflects upon him as the person who is responsible for much of the administration of the Aboriginal Legal Service.
We would be saying that he has an interest there which needs to be protected. We would be submitting, your Honour, that there is little or no damage can be done to the Australian Securities Commission, or the other respondents, who are either the persons who are employees of the Australian Securities Commission by having an interlocutory injunction, they suffer no damage at all. It does not interfere with any ongoing activities that they may have, and that the subject matter of the proceedings in this Court is preserved. If an interlocutory injunction is not granted - - -
HER HONOUR: But, your original application was to prevent them carrying out the investigation.
MR CORR: Yes, that is correct.
HER HONOUR: Now, that is an application which you really did not prosecute with any great vigour, is it?
MR CORR: No, your Honour, that is the case, that there were delays in the matter; that - - -
HER HONOUR: Well, how do you overcome that difficulty.
MR CORR: That, although there have been delays, it is still a matter which we would submit the Court - there is an overriding interest in the Court in preserving the subject matter of proceedings before it.
HER HONOUR: What is this subject matter more particularly, as your application, as I read it, goes to the investigation which is now complete?
MR CORR: Part of the application at the moment is for an amendment of the application which is for certiorari and prohibition, so that we would be quashing what has been done, declaring that it was in fact unlawful for them to carry out that particular investigation.
HER HONOUR: Yes, but that was the subject matter of the proceedings which you did not prosecute with any great vigour. You waited until the eleventh hour.
MR CORR: Yes, your Honour, though part of that may of course be due to the lack of resources of the applicant in this matter. I know it is not a sufficient reason.
HER HONOUR: I do not find that a very convincing answer. At all stages they have had legal advice and presumably were in a position if they did not have legal advice to provide their own legal expertise as to what had to be done.
MR CORR: Yes, your Honour, but even granting that, that there has been the delay, there is only one small matter which now remains, and that is just the publication. The investigation has been carried out but his Honour was somewhat reluctant to grant an order prohibiting the investigation, as this Court always has been in such matters, and we can see that. But here there is just one small step. It does not, we submit, in any way damage the respondents if there is an order granted until the appropriate hearing of this - - -
HER HONOUR: Do they have a statutory duty to report?
MR CORR: It is "may prepare" in section 17:
At the end of an investigation under section 13 or 15, the Commission may prepare a report about the investigation, and shall do so if the Minister so directs.
My friend has made a reference to section 18(1) which reads that:
As soon as practicable after preparing a report under this Division, the Commission shall give a copy of the report to the Minister.
That, however, is only if they do, in fact, decide to make a report. In this case they have. However, "as soon as practicable" obviously must be one that takes into account any proceedings that are on foot and one which challenges the right of the Commission to, in fact, investigate a matter is one that we would submit is appropriate to delay such a matter.
HER HONOUR: The report has, in fact, been made, has it not, to the Treasurer?
MR CORR: No. As I understand it it has not been given to the Treasurer and at the moment there is an undertaking in relation to the matter before the Federal Court that it would not do so until, I believe, 1 November, or prior order. That the proceeding before the Federal Court, of which there is a hearing before the Full Court tomorrow, is in relation to the application of the rules of natural justice in relation to material being given to the prosecutors and others to pursue.
HER HONOUR: Let me then find out precisely why the proceedings have been split. This is a most undesirable state of affairs that there should be proceedings pending in the Federal Court as to one aspect, proceedings pending here, which I repeat, have not been prosecuted with any vigour. Now, why should there be matters in two courts? Indeed, how can there be matters in two courts?
MR CORR: Yes, the matter before the Full Court, your Honour, relates to the conduct of the investigation or, rather, the creation of the report thereafter rather than going to the validity of any investigation. The matter in the Federal Court relates to whether or not the prosecutors in this matter, who are the applicants in the other matter, with some variation - the applicants in the Full Federal Court matter are the Aboriginal Legal Service and Paul Thomas Coe as Chairman of that organisation.
HER HONOUR: All right, now, I will go back to it. Have you brought proceedings under the AD(JR) Act?
MR CORR: Yes, they were brought then.
HER HONOUR: Under that Act you can challenge, I take it, whether the Act authorises what has been done?
MR CORR: Yes, that is correct.
HER HONOUR: Why are you in this Court? Surely to goodness you cannot split proceedings in that way.
MR CORR: Well, the proceedings had been started in this Court in relation to validity.
HER HONOUR: I do not mind why they have been started. I just wonder why you have been allowed to proceed without making an election as to the course you are taking, whether by the Federal Court or this Court. My looking at this file all but suggests that you abandoned the proceedings in this Court and now at the eleventh hour you want to revive them. But for the life of me I cannot see why ordinary legal principles do not prevent you litigating essentially the same issue in two courts at the same time. I would have thought that was very basic.
MR CORR: Yes, your Honour. The matter in the Federal Court was one of how the investigation should proceed if it were - - -
HER HONOUR: I do not mind how you framed it. The question is how it might have been framed.
MR CORR: Your Honour, that matter can easily be remedied by this particular matter being remitted to the Full Court.
HER HONOUR: I am not too sure about that. You have certainly not made any application for remitter and I am not too sure that that is right at this stage.
MR CORR: But in any instance, your Honour, there is the entire question of the validity of this investigation which has been - - -
HER HONOUR: Yes, but you can raise that in the Federal Court proceedings as well. You could have raised it. What I am querying is your ability to engage the time and personnel of two courts on what is essentially the one issue.
MR CORR: The issue before the Federal Court was one which assumed the validity of the investigation and just how it should be conducted thereafter. I agree with your Honour that it would have been available to argue the ability of the ASC to conduct any investigation. That could have been raised in the order for review there, but there was already the matter on foot in this particular Court about the validity of that matter.
HER HONOUR: You are not addressing the question. It is called vexation; vexatious litigation. You simply cannot have proceedings about the same controversy pending in different courts at the same time.
MR CORR: Yes, your Honour. The question is then as to how to proceed from here on. If it is your view that it should not be conducted by this Court, then it should be one which is reviewed in the other court. However, at the moment the controversy there is restricted to the application of the rules of natural justice on the basis that the investigation was in fact valid. If the matter does not proceed in this Court, then the question of the validity of the investigation disappears.
HER HONOUR: It looks to me, Mr Corr, as though you have tried to engage in some sort of elaborate game whereby you can pick and choose between the courts at your will and that you have deliberately, as I read the file, let this matter become practically dormant, to be revived if, and only if, you did not get satisfaction in the Federal Court, without, I may say, making any indication to the people in this Court that you had proceedings pending elsewhere.
MR CORR: Yes. Even if the full relief, which was being sought in the Federal Court were granted, all that that was seeking was for all of the transcript of the interrogations to be made available to the first applicant, the Aboriginal Legal Service, for it to be able to comment on them. It is not one that would have stopped the investigation or stopped the report at all. It was only in relation to a procedural issue there.
I agree, your Honour, that it probably would have been appropriate to, in fact, challenge the entire matter there. However, whether that would not have also been considered vexatious, in that there had already been a proceeding started in this particular Court, and that there had been an order made in relation to it, there would have been the same argument raised there, in the Federal Court, about that application being vexatious at that stage, and that therefore we would have been caught no matter what happened. If we had argued it there, or tried to put it there - - -
HER HONOUR: You would not have been caught if you had sat down and taken a good think about this matter and worked out how all the issues could be determined at once.
MR CORR: Yes, your Honour, however, that still does not resolve as to how we do, in fact, arrange that all the issues are determined, that - - -
HER HONOUR: At once.
MR CORR: At once.
HER HONOUR: In the one proceeding.
MR CORR: Yes, your Honour. That as it stands at the moment, there is an appeal tomorrow before Full Federal Court about the application of the rules of natural justice in relation to this investigation. That is the only matter which is, in fact, before that court. If your Honour is so pleased, then it could be broadened to include the matters which have been raised in this Court. That, however, would, of course, mean that that particular hearing date would probably have to be vacated. But, the prosecutors in this matter still contend that the investigation was invalid, because there was no basis - - -
HER HONOUR: I do hope that they give better legal advice to their clients than they have been getting for themselves.
MR CORR: Yes, your Honour. We are still, however, left with how to proceed in this matter. I would be submitting that given that the Full Federal Court is hearing just that procedural issue tomorrow, that that should go ahead, but that there should be, obviously, a prosecution of this matter with some expedition.
HER HONOUR: That is entirely within your hands, I should have thought, as it has been for the past 12 months.
MR CORR: Yes, your Honour. That if that is done then, however, there should be some protection given to the prosecutors in this matter as to their interest being protected because if there is not some order made preventing the publication of the report then their interests are completely destroyed in this matter.
HER HONOUR: You already have an order from the Federal Court. I do not find it at all satisfactory that you come to this Court asking for an order with the potential to conflict with an order that may or may not be made in the other proceedings. It is simply not permissible to have different courts deciding what is essentially the same controversy. It is just not permissible.
MR CORR: Yes. With respect, your Honour, the order at the moment is only an undertaking by the respondents in this matter that they will not publish. That there is no order on foot of the court that if the Full Federal Court were to find for the applicants in the matter, the relief which is being sought is an ability for the applicants to have access to the full transcript of proceedings and to be able to comment on the full transcript of proceedings before the report goes any further. That would only be an order for some short time, I would imagine, your Honour. If the Full Federal Court, in fact, finds for the respondents then there would be no order at all, so that I would submit that the possibility of conflict between the orders is minimal. Therefore, your Honour, I would be asking that the respondents in this matter do be allowed to amend the particular application and that there be - - -
HER HONOUR: We have not come to the amendment yet. We have only dealt, so far as I understand it, with the application for an injunction.
MR CORR: Yes, your Honour.
HER HONOUR: All right. What is the basis of your amendment?
MR CORR: That is just to change the application from being for prohibition to an application for certiorari and prohibition.
HER HONOUR: Why do you need that?
MR CORR: Because the events which were being sought to be prohibited have occurred and the prosecutors would be seeking the Court to find that the respondents did not have the power to carry out those actions and to declare that those actions are quashed, that they are a nullity and to prevent them from doing any further actions or acting upon what has occurred before.
HER HONOUR: You are in the Ainsworth position, are you not?
MR CORR: Yes, that is correct.
HER HONOUR: Do you need to amend your application for that? After all, all that you really have before this Court is a motion to go before the Full Court.
MR CORR: Yes, to argue the position that it is in fact invalid. It was I think more from an excess of caution that that was being sought, your Honour, so that there could not be any question that there is nothing on foot and that the application should be removed as a result of that.
HER HONOUR: What was the nature of the proceeding in Ainsworth? Was it by way of application - - -
MR CORR: I think they eventually got just a bare declaration.
HER HONOUR: I know what they got, but I wonder what was the proceeding that resulted in it.
MR CORR: I think at page 566, about halfway down:
On the application of Ainsworth and the company, Master Horton QC granted orders nisi for mandamus and certiorari directed to the Commission. The orders nisi were returnable before the Full Court of the Supreme Court of Queensland. The Full Court.....discharged the order nisi with costs. The applicants appealed from the order of the Full Court, by special leave, to the High Court.
So it was originally one for - - -
HER HONOUR: So the bare declaration was granted when the orders were insufficient or inadequate to the circumstances?
MR CORR: Yes. In this case the prosecutors are somewhat before the position of Ainsworth in that the report has not been made, and therefore we would be saying that - - -
HER HONOUR: You want the injunction for that reason?
MR CORR: Yes, and for the same reason we would be seeking the certiorari and prohibition.
HER HONOUR: But your certiorari goes to the original decision to investigate, does it not?
MR CORR: Yes, and all things flowing from that.
HER HONOUR: Clearly this Court only has power to grant certiorari under Chapter III to the extent to which it is ancillary to the grant of mandamus, prohibition or an injunction, is that not right?
MR CORR: Yes, I believe that is the case.
HER HONOUR: How is it ancillary in the sense of necessary to perfect the remedy?
MR CORR: That the prohibition would be going to any future activity but there are past action - - -
HER HONOUR: No, it is not. The prohibition is going to - well, it is not in this case, is it, because you did not prosecute? It is going to past activity.
MR CORR: It would also prevent the respondents from doing anything in future in reliance upon the activities which they have carried out.
HER HONOUR: All right, now, how does certiorari, the certiorari that you seek, operate in aid of the position.
MR CORR: It removes that past action.
HER HONOUR: How does it do so any more than prohibition with respect to the investigation?
MR CORR: It depends on whether something has been done in reliance of that investigation. If there has just been the investigation and there has been no reliance on it then it may well be that prohibition is necessary. But, if there has been something done in reliance on the investigation then certiorari may be necessary. As I said, your Honour, I think it was an excess of caution that brought about the application for the amendment in this particular case. In this case the delay has been caused by the prosecutors wanting to be certain that what they were doing was, in fact, correct. Rather than any other matter, is not in any vexatious way but just wanting to make certain that their rights were protected in this matter. If there were any doubt about prohibition being available then certiorari was sought as well. That is the basis for the application, your Honour. That being the case, I think I have covered the application for the amendment and also for the application for interlocutory relief, that those would be the submissions in support of those applications, your Honour.
HER HONOUR: Yes, thank you, Mr Corr. Yes, Mr Solicitor?
MR GRIFFITH: Does your Honour have a copy of our 104 paragraphed affidavit? Does your Honour have a copy of our affidavit by John David Pinkerton?
HER HONOUR: I believe so.
MR GRIFFITH: I am sorry about the 104 paragraphs, your Honour.
HER HONOUR: Yes, a very lengthy one that came today, I think.
MR GRIFFITH: Yes, I am sorry, your Honour. It took a long time to put together and there are two exhibits that, unfortunately, were not attached. If I could hand to your Honour G and P. Perhaps, if I could mention the particular salient paragraphs to issues before your Honour today. If I could give them by number to your Honour, 29, 39, 49, 51, 68, 70, 78, and 103. I will not take your Honour in detail to those paragraphs now because it is clear from your Honour's exchange with my learned friend that the essential issues are identified. If I could start with this question of what is the application before the Court - I must say until my learned friend said halfway through his presentation that his application was dealing with the injunction, I had been under the apprehension that we were dealing with the substantive issue before the Court.
Anyway, correct as I am, your Honour, if logically we could consider what is the state of the original application in respect of which Justice McHugh made an order of 15 February 1995, which is some 20 months or so ago, if I may add a few months to your Honour's estimate of when these matters were first dealt with as a matter of urgency by Justice McHugh. Your Honour might have seen from the transcript on that day that there were some four grounds raised as to why there should be an order nisi and his Honour had no hesitation in rejecting all four, but, reluctantly, your Honour, as is directed by the order, gave leave for a notice of motion to be returned before the Full Court on the first of the arguments, which I might put as the power argument. If I could take your Honour to the terms of that order, if your Honour has the order of 15 February 1995.
HER HONOUR: Yes, I have that.
MR GRIFFITH: Page 2, your Honour, there is a direction in effect giving leave for the prosecutors to bring forward their application as to why there should not be a writ of prohibition to prevent the continuation of the process of examination, to summarise what is there sought; otherwise, the application was ordered to be dismissed. So the only existing part of the application, your Honour, was the capacity of the plaintiffs to apply, one supposes, forthwith by notice of motion to prohibit the continuation of the interrogation process. Now, if nothing else, your Honour, it seems it is common ground that that process is entirely complete and over and your Honour has no explanation whatsoever from the prosecutors as to why there has been any delay in prosecution of the matter.
There is an affidavit, your Honour, of the second prosecutor which was sworn on 13 September which indicates at least he, as the second prosecutor, attended the interrogation and that various documents were required and notes that the report is now complete. So that is the second prosecutor's own version of the facts, that he co-operated and the process that was sought to be prohibited by the matters referred to in the notice of motion in his Honour's direction is now completely at an end.
Your Honour, in our submission, the only appropriate course on those facts being exposed to the Court, and our affidavit does that in detail, your Honour, the appropriate order for your Honour to make is to revoke his Honour's order, that direction, because there is no substance to it, your Honour. The matters the subject matter of that application - - -
HER HONOUR: There is as much substance to it as there was to the Ainsworth matter, is there not, in the sense that the relief could not serve any useful function - the relief that was sought in Ainsworth could not - - -
MR GRIFFITH: Of course, in Ainsworth, your Honour, there was the whole problem that there was a claim.....for certiorari; there was no consequence of the making of the report, and so that, your Honour, in that situation, it was inappropriate for it to apply the prerogative remedies which were sought for. But, your Honour, if one says, "What would happen if this matter now came on?". Your Honour, in my submission, there would be no substance at all in the application to seek to prohibit something which has now completely occurred, and with the acquiescence for it, one supposes, their own tactical reasons of the prosecutor, who seems otherwise to have entirely co-operated, or, at least, complied with the requirements as to the interrogation process, which is at a completion now. The report has been written, ready to be handed to the minister under section 18.
HER HONOUR: The report has been handed to the minister.
MR GRIFFITH: It is ready to be handed, your Honour. It is completed, so, your Honour - and, as your Honour indicates, without any material being forthcoming from the prosecutors, the affidavit which has been filed discloses the fact that there has been an undertaking given to the Full Court not to hand that report to the minister before 1 November, and that that hearing of the Full Court appeal is to commence tomorrow. That is how your Honour is now aware of these facts.
Now, your Honour, if we put on one side - and I wish to address this whole issue of election abuse of process - to address separately, your Honour - if one puts the fact of those Federal Court proceedings on one side, one has the position that the application made in February on affidavits sworn in January 1995 now has no content because, your Honour, the whole process sought to be prohibited is at an end, and I should add, your Honour, that there was an application made for an injunction at that time, which was refused by Justice McHugh.
Your Honour, it must be appropriate, we submit, for your Honour to look at that circumstance as a fact now and say, "There is now no content in this order, as it stands. It must be vacated; the matter where the applicants were able to apply is one that has no content." Now, your Honour, at that stage, one would say, "Well, vacating the order of Justice McHugh, where are we in this proceeding?" Your Honour, in our submission, there is no content left at all. Now, my learned friend says it was a matter of making assurance doubly sure. He flags the fact that the application now is a completely different one. It is not for prohibition to prevent an inquiry; it is prohibition to prevent the distribution of a report by - - -
HER HONOUR: It is certiorari to quash the decision to investigation, a I understand it.
MR GRIFFITH: Your Honour, I must say, we are entirely at a loss to understand the relationship of the claim now that there is prohibition and certiorari. Your Honour, it might assist - we did prepare an outline in anticipation - we thought how these matters might be presented, and could I hand your Honour that outline summarising our views about this, your Honour, but, what we say is that at this stage, the report having been completed, that a writ of prohibition can no longer be an appropriate remedy.
We say that there is no legal consequence attaching to the report in paragraph 1.4, and we refer to Ainsworth and the recent decision of this Court in Hot Holdings to say that in these circumstances certiorari will not lie. We also in paragraph 1.5 make the point that there does not seem to be any appropriate respondents to such an application in that situation and we refer to the fact of course that we have also put the prosecutors on notice, that we took the view that this was a matter which should now be struck out.
Your Honour, when one gets to that point one then activates, in our submission, the consideration in a situation when your Honour is dealing with this, we say, as a matter of discretion as to whether or not to reinvigorate an application now which is totally devoid of content by permitting a substitute application for some entirely different claim for prerogative writs and other relief to be substituted to have regard to these matters of abuse of process, concurrent proceeding. In our submission, your Honour, one can come from this in various directions - and I think your Honour covered at least three of them in your Honour's exchanges with my learned friend - and say that it is not permissible to play one court off against the other.
What has happened here, your Honour, is that there was an application for injunction refused by Justice McHugh in February 1995. The inquiry has run its complete course in a matter where your Honour, we submit, can take it as self-evident where there is a matter of public interest that the report should be made available, as one might expect be tabled, where by taking separate proceedings in the Federal Court, dealing with, as my learned friend put it, the natural justice grounds, there has been a result obtained which in effect has obtained at least up to consideration of tomorrow's appeal that there is a undertaking running from the respondents in those applications not to deliver the report till 1 November.
There is an attempt to play off jurisdiction in effect, that the prosecutors then come to your Honour to say, "We want you to continue an injunction outside the jurisdiction of the Federal Court", which has not ordered any injunction and, in our submission, your Honour would not and could not order any injunction. One can say obviously this is a matter of election. It might have been the application were first made here. It was not prosecuted, which your Honour should assume in the absence of any material as being a deliberate decision by the prosecutors not to pursue it. Your Honour has material in extenso in our affidavit indicating the extent to which the prosecutors, the Aboriginal Legal Service and those involved with it including Mr Miles did co-operate in that same process which they sought to enjoin in the prerogative writ proceedings here.
Also I referred your Honour to the affidavit of Mr Miles himself, the second prosecutor, sworn 13 September, saying that he certainly co-operated and was involved in those proceedings. One has then a situation that the application for review under the Administrative Decisions (Judicial Review) Act have not been taken on the natural justice grounds. It is self-evident and your Honour made the point - - -
HER HONOUR: Only on that ground?
MR GRIFFITH: Yes, and it is self-evident. Your Honour made the point to my friend and he never answered you, "Why was not as a preliminary ground for review the fact that there was no jurisdiction because of this constitutional point?" That was when that matter should have been raised, your Honour, and in the content, of course, of the apparently abandoned proceedings in the High Court, not only was there a capacity under the Administrative Decisions (Judicial Review) Act to raise those matters. One must say that it must be a matter of positive election by the parties to choose not to raise that in the Federal Court proceedings. Indeed, your Honour, to act in derogation of the constitutional ground and to merely argue the point of procedural fairness, which must be on the assumption that the Act is valid, and it is a question of whether or not it has particular content as to requirements as to fairness.
The judgment of Justice Moore, as your Honour will see from the exhibits, the affidavit, dismissed that ground entirely in an expedited hearing which flags for your Honour the fact that at least the Federal Court take the view there is a public interest in finality in this matter, and that might be confirmed by the fact that the appeal is coming on as early as tomorrow in the Full Federal Court.
We mention then in paragraph 1.7 the sometimes neglected decision of Port of Melbourne Authority v Anshun Pty Ltd. I know your Honour is familiar with that decision but - - -
HER HONOUR: I am just wondering how it works here. It seems to me to be a somewhat different problem.
MR GRIFFITH: I agree entirely, your Honour.
HER HONOUR: The proceedings are on foot in two courts and you cannot say that - - -
MR GRIFFITH: It is somewhat different but what we say, your Honour, it gives the reference points in the context that your Honour has invited here. We say to exercise a discretion as to whether to revivify, reconstitute to proceedings here by permitting an amendment of a completely separate content of a notice of motion to that which was reluctantly ordered by Justice McHugh 20 months ago. Your Honour, when it comes to consider the exercise of that discretion there are many ingredients involved. In our respectful submission, they all add up to the same thing, namely, that your Honour should not exercise any discretion in the parties' favour. If it is the case now that they have a constitutional point to prosecute dealing with the issue of the delivery of the report to the Minister under section 18, in our submission, they can act as they may be advised to bring proceedings either by seeking to broaden the issue before the Federal Court which - - -
HER HONOUR: Can the constitutional point be raised before the Federal Court?
MR GRIFFITH: Your Honour, it may or it may not, but in the context of delay one can see that if the parties in the Federal Court proceedings sought to do that, it gives them, in effect, so long as it can be accompanied by an extension of the undertaking or an in junction, the delay that they seem to be looking for in these combined double proceedings. There was an attempt, I am instructed, as we mention in paragraph 1.7, to raise some constitutional issues in the amended application for judicial review but they were abandoned. They were not proceeded with. So, that the proceeding before Justice Moore proceeded on the obligations of procedural fairness issues alone. But whether they were raised completely or only partly or not at all, we say that was completely the parties' choice, but the appropriate course for your Honour, notwithstanding the fact that the matter started here, your Honour - the matter started here on the claim that there was a constitutional ground to prevent the inquiry proceeding. That matter is over. The inquiry is finished.
So, we submit to your Honour you should look at it afresh and say, there is, in effect, a new application, to say that the report should not be made under section 18.
HER HONOUR: That is a matter that clearly can be raised, can it not?
MR GRIFFITH: Yes, we say there is a heavy onus on the prosecutors here who came to the Court 20 months ago, your Honour, to satisfy your Honour as to why an order of indulgence should be made to permit that issue to be raised in the context of the unexplained delay, the apparent willing co-operation of those parties to the procedure of inquiry which they challenged on constitutional grounds on the original application, ground 1 before Justice McHugh, their deliberate choice not to raise those grounds. They could have raised them in the AdministrativeDecisions (Judicial Review) Act proceedings and, in turn, elected to proceed there, and as a matter we would say of judicial comity, should have been a clear, in effect, compulsory election to proceed at that appropriate jurisdiction and, as your Honour pointed out, with a complete lack of candour, to keep this Court entirely uniformed as to the circumstances of the other proceeding. Indeed, to keep this Court entirely uninformed even of the matters pertaining to injunction which we disclose in our affidavit.
It comes back, your Honour, to now we understand why my learned friend was apparently in the first half of his argument making submissions about the injunction. That is what the prosecutors want in this matter before your Honour. They want the advantage of delay because it looks like it is going to be the end of the road for the course of the Federal Court proceedings which are to come on tomorrow so that the capacity to acquire a delay in this report being publicly made available is being exhausted under the Federal Court proceedings. So that my learned friend, in effect, comes here, we submit, with a principal application not to get the essential constitutional issue before the High Court but, one, to get an injunction until one supposes in another leisurely 20 months or so, that action might be brought on.
Well, your Honour, there must be a compelling public interest quite apart from the issue of injunctions for constitutional cases which we refer to in the next part of the summary which I have handed to your Honour which must dictate that such injunction should not be granted. What we say, your Honour, those various ingredients raised by your Honour - and we refer to Anshun as confirming the basic approach, your Honour - if there are matters which one say fairly could have been raised in the other proceedings, then they should have been raised. There is no difficulty at all here about election, your Honour.
HER HONOUR: To what extent could they be raised in the Federal Court proceedings?
MR GRIFFITH: Your Honour, the first claim under the Administrative Decisions Review Act would say that there is no jurisdiction because of the constitutional point. So, one would say that is the end of it, your Honour, that cannot be any proceedings by way of the inquiry. The provisions of the Act are beyond power.
HER HONOUR: That is not a ground - as such, it is not a ground of review. You would have to phrase it some other way. You would have to - - -
MR GRIFFITH: I did not bring the Administration Decisions (Judicial Review) Act with me, but, your Honour, I am quite sure it enables you to run an argument on no jurisdiction, because - - -
HER HONOUR: It says the Act does not authorise it.
MR GRIFFITH: - - - either the Act does not authorise it, or the Act is beyond power.
HER HONOUR: Yes.
MR GRIFFITH: I am told it is 5(1)(c). I am sure I did not bring that Act with me, your Honour.
HER HONOUR: Well, I have got it.
MR GRIFFITH: Thank you. Your Honour has the advantage of me. But, even without that, your Honour, of course, it is self-evident. One can attack power first up.
HER HONOUR: Yes, that is the jurisdiction point; yes.
MR GRIFFITH: So, your Honour must take it, it is free choice to have done this, and we say, your Honour, in that context, there is no reason whatsoever for your Honour to exercise any discretion in the prosecutors' favours. If, Your Honour, they are in the position, acting as they may be advised, if they seek now to make a separate and new application for prohibition and certiorari - - -
HER HONOUR: Well, I am not too sure it is separate from you. I think all that is asked is leave to amend what is being referred to the Full Court.
MR GRIFFITH: Your Honour, they are, in effect, asking for leave to amend Justice McHugh's order.
HER HONOUR: Yes.
MR GRIFFITH: And we say the first step of that is that it is self-evident they must vacate the content of the order whereby it was directed that they may move the court for matters dealing with the inquiry, and what they then say is, "It is common ground that must be vacated. We wish to substitute now something entirely new". Now, that must be a discretionary matter to your Honour, and we indicate the various levels where we say the discretion should not be exercised in their favour. We say, your Honour, this application should be regarded as an end, having vacated that aspect of the - - -
HER HONOUR: You may need to file a notice of motion to bring about that - - -
MR GRIFFITH: Well, yes and no, your Honour,. because the application here is, in effect, to revoke that direction and substitute something else. If there is a revocation, which really must happen, your Honour, one could not let it go to the court as it is, although my learned friend seems to assume that he could. We would say, your Honour, he would not survive much longer, perhaps, than I did when I appeared in Mewett the other day. It would be the first inquiry of the Court as to, "Well, how can you proceed with this matter?", and my learned friend would say, "No, I'm substituting something else".
He has not got any liberty of Justice McHugh to be moving that before the Full Court and, we submit, your Honour, he is out of time to appeal Justice McHugh's order. He is back before your Honour wanting to vacate it and ask your Honour, in effect, to make a fresh order. We say your Honour should say, "No. We will leave it vacated." That means this application has no content at all and, your Honour, at that stage it must be merciful relief for your Honour to order that the last part be dismissed because there is no other content that could come into it. Perhaps if your Honour required it, we could file a notice of motion, but we say it is implicit, your Honour, in this matter coming on, that your Honour can make such orders as are appropriate.
Now, if my learned friend then says he wishes to bring on a new notice of motion, claiming certiorari and prohibition, we make the points we make in this summary that that is just not now available. We say that the prohibition is not available; you have not got parties against whom a prerogative writ could lie and we would say that your Honour, in any event, having regard to the way in which the plaintiff, unexplained, has taken the applicants, the prosecutors, in the various proceedings, have chosen to run some issues here, some issues there, in the Federal Court, your Honour should take the view that no order should be made to enable this matter to come on.
But your Honour is not being asked in fresh proceedings to make an order. You are just being asked to slip them in here. We say that is a lot easier inquiry. You just say, "Refuse". If my learned friend chooses to approach this Court or the Federal Court with some application saying, "I want to run this issue of constitutional validity.....the Court under section 18", that will be responded to as it is made. One can see the obvious arguments which would still be made as to election, abuse of process, arguments derived from the Anshun approach as well as the pure jurisdictional ones under section 75(v) prohibition, whether there is an officer of the Commonwealth, et cetera.
So that there is an element of your Honour's being lulled into saying, "Well, this is just to make assurance doubly sure". But we say you are not, your Honour. Unless there is an order made positively substituting some other motion which may be given under paragraph 1, there is nothing because it must be my learned friend's submission that the direction by Justice McHugh should be revoked and something else substituted for it.
Your Honour, could I now in reverse order to my friend refer to the issue of injunction. I have already made passing references as to that. However one looks at it, the original application for injunction incurred before Justice McHugh and the application now is based on a constitutional argument. It is not based as it might have been if it were pursued in the Federal Court on a question of fairness of procedure, whether there should not be an injunction. Justice McHugh said in February - and I think your Honour has the transcript - that he would refuse the injunction.
The circumstances here are not significantly different unless one regards the effluxion of time and the completion of the inquiry process as indicating that the fact that the applicants, the prosecutors, have not chosen to prosecute the matter to finality, as it would have been in a matter of months in this Court, and seek after unexplained delay to get an advantage of injunction when they have run out of capacity to delay matters by the Federal Court proceedings which are coming on on appeal tomorrow, one would say, your Honour, quite apart from the constitutional issue, that would be a compelling case to say that, because of the actions by the prosecutors themselves, they would be disentitled to approach the Court for the injunction.
We then make in paragraph 2.3, and give the Court the usual citations, the point that this Court requires compelling grounds to grant an injunction pending the determination of validity of a statute challenged on constitutional grounds. Here we must emphasise again that the challenge is a new one. It is not now a challenge as to the inquiry procedures. It is a challenge to the section 8 distribution of report section. It is an entirely new and different challenge. It is one that could not be prosecuted, one supposes, with further 78B notices being given.
But in as much as that is brought forward, we would submit the ordinary principles from Australian Capital Television and Castlemaine Tooheys would apply and one would say that no compelling grounds having been given - indeed, to the contrary, your Honour. There must be a countervailing public interest on publication. Any matters that my learned friend might refer to which he might say would cause prejudice to the corporate body that he represents and Mr Miles is destroyed by their own unexplained delay, indeed destroyed by Mr Miles' own affidavit indicating that he co-operated in the processes for which he was a second prosecutor before the court to enjoin.
Your Honour, because of the arguments that we have made as to the inapplicability of prerogative writ of prohibition and also certiorari and the fact that there is no relevant party for a prerogative writ, which we summarise in paragraph 1 of our submissions, we say your Honour could not be satisfied that there is even a serious question to be tried.
Certainly there can be no balance of convenience. I do emphasise, again there the obvious serious public interest. That this report which has been in train for at least 21 months, now it is completed and matters your Honour could take judicial notice of public controversy are matters which should not be subject to further and obvious indefinite delay.
Your Honour, we are not saying that if there is a serious constitutional point which is sought to be argued, it is not something which in appropriate proceedings cannot be argued, we say the history of the matter here - and that is why the affidavit goes to such length - dictates that there is no reason whatsoever to reconstitute these proceedings to provide the vehicle. If I may say so, your Honour's exchanges with my learned friend said more eloquently than I can in my submissions the compelling reasons as to abuse of process election, and we mention also the modified Anshun ground all dictating the same direction. So, although your Honour has made the point that there is no separate application to dismiss, in our submission, once one gets to the point and does not grant any leave to bring forward and substitute motion to that order by Justice McHugh, one is driven to the conclusion that these proceedings have no content and that it is appropriate, whilst the parties are here, for them to be dismissed. If your Honour pleases.
HER HONOUR: Thank you, Mr Solicitor. Yes, Mr Corr.
MR CORR: Yes, my friend, the Solicitor, made a number of statements which I think need some clarification. He placed a great deal of reliance on the acquiescence of Mr Miles and others with the investigation by the ASC. Although, of course, as I think Chief Justice Latham said in the first Uniform Tax Case that an invalid law is void ab initio and a person can ignore it, he also made the comment there that a person would probably be more interested in having a court declare it invalid before doing so. In this particular case, where punitive action can be taken against persons who refuse to attend for interrogation, it is quite reasonable to expect Mr Miles and the other persons associated with the Aboriginal Legal Service to, in fact, attend, because if the law is in fact found to be valid and that they have not attended, they face quite severe consequences. I do not consider that this could be seen to be acquiescence in the investigation. It is more a matter of prudence. I am fairly certain Mr Miles would not have wanted to be facing a prison sentence or a large fine, and none of the other persons who were also called for interrogation would want that either.
The learned Solicitor also made various references to the abandonment of this particular application. If your Honour looks at the various documents which are attached or exhibited to, or annexed to the affidavit, your Honour would be able to see that there was a considerable amount of activity in May and June of this year to finalise the application book and to get the matter under way. There were difficulties associated with the Aboriginal Legal Service around that time. Your Honour would note that the letters - various letters were sent originally to a Mr Craig Everson, who at that time was the solicitor for the Aboriginal Legal Service in Canberra. At the end of June Mr Everson left the Aboriginal Legal Service and went to the Bar. He was replaced by Mr Forrest-Tjakamurra who soon thereafter also went into private practice.
I would also refer your Honour in particular to the annexure H of the affidavit where Mr Vermeesch made these particular comments:
Please also note that the conduct sought to be prohibited by the prosecutors has in fact occurred and that prohibition therefore is not available. The respondents accordingly consider that the prosecutors should discontinue the proceedings. Please advise of your intentions in this regard so that the respondents can further consider the need for any other action.
Obviously, as a result of this there was the application to amend to include certiorari in this matter because of the actions of the respondents in this matter. Those actions in relation to May and June in relation to finalisation of the application book somewhat predate the application to the Federal Court which occurred on 16 August so that there was, in fact, prosecution of this particular matter occurring. It was a matter of just finalising the application book and making certain that the appropriate relief was, in fact, being sought.
My friend also referred to the abandonment in the Federal Court of various constitutional issues which had been raised there. Those were not the same issues which were raised in relation to the jurisdiction of the ASC to conduct investigations. They were, in fact, in relation to an argument about the availability of judicial review. In the event, in the Federal Court, there was the agreement that the AD(JR) Act, section 5, did, in fact, apply in the particular matter and that, therefore, the constitutional point about the applicability of judicial review to the ASC was abandoned on that basis, the question about the jurisdiction of the ASC to conduct any investigation on a constitutional basis was never raised and, therefore, could not ever have been abandoned.
The expedition in this matter by the Federal Court, that is partially due to the activities of the respondents, as well, in that they sought expedition in this matter. It has been said that there need to be compelling reasons for the issue of any interlocutory order in the constitutional matter. In this case there are the most compelling reasons, namely, that the complete destruction of the subject matter which has been brought before this Court namely, the entire investigation, we are saying the entire investigation is invalid. If there is the publication of the entire material, then, effectively all that the prosecutors would be left with would be the bare declaration as occurred in Ainsworth and, your Honour, that would be of little benefit to the prosecutors if their good name had, in fact, been destroyed. They would only have that bare declaration and the joy of knowing that they were, in fact, right in the argument. There was a suggestion that your Honour should take note of some public controversy regarding the Aboriginal Legal Service. I would submit that that is not available.
HER HONOUR: I think you, yourself, invited me to take note of matters of public notoriety, if not controversy. You cannot have it both ways, Mr Corr.
MR CORR: Yes, your Honour, but in any instance your Honour would not know what is in fact in that report. Even if there has been some public discussion or notoriety about matters relating to the Aboriginal Legal Service, your Honour does not know what is in that report and what it says about the Aboriginal Legal Service or the other prosecutor. That is not something that your Honour has any notice of and your Honour cannot know what is being said about them in that matter. If there is not the grant of the interlocutory application, to a large extent this Court's ability to enforce its jurisdiction is rendered nugatory. There is nothing there that an investigation which - if the Court finds that there was no power to conduct the investigation, it will nevertheless have occurred and there will have been the full consequences flowing from that.
But, even though there was originally no power for that investigation to have been conducted, it is as though the Court will have had no power to do anything. It has already occurred. This I would say is a similar situation to Mareva injunctions and so on. There are injunctions granted to ensure that the Court does have something upon which it can rule to protect the interests of parties before it.
HER HONOUR: The difficulty with that submission, Mr Corr, is that really it is unless that is the situation, ordinarily the Court will not grant such an injunction or a stay or something of that nature. But you have to get beyond that to the point where the Court should exercise its discretion to do that, notwithstanding your failure to have the matter brought on for hearing at an earlier time and notwithstanding your choice to pursue remedies in another jurisdiction.
MR CORR: As I pointed out to your Honour, the prosecutors were in fact prosecuting the matter in relation to the finalisation of the application book and so on. In relation to the amendment of the application, that arose because of correspondence from the respondents. So that is why that has occurred. In relation to the application in the other court, it would have been, I would submit, vexatious to have raised that matter there when a matter had already been brought before this Court and that it was in fact being prosecuted at that time in relation to the constitutional matter, to raise it again in the Federal Court, whereas what was raised there was the procedure which should be followed if the investigation was in fact valid. I think that there would have been some outcry from the respondents if the constitutional point had been raised in the Federal Court in August when there was attempts being made to finalise the application book and the nature of the orders being sought in this Court at the same time.
HER HONOUR: Yes, but you really cannot pursue the issues in two courts at the same time. Surely there would have been an outcry because you would have been put to your election. It would have been said to you, "You must decide once and for all how this controversy, this single controversy, is to be resolved. Do you wish to pursue it in the High Court on the limited grounds or do you wish to pursue it in the Federal Court on whatever grounds are there available?". You would have been forced to decide.
MR CORR: Yes, but there was nothing raised - - -
HER HONOUR: Or perhaps you might have been told to seek a remitter of the proceedings in this Court to the Federal Court so that all matters could be dealt with comprehensively.
MR CORR: Yes, your Honour, but it would be submitted that, in fact, although the applications in this Court and in the Federal Court do both arise as a result of the investigation, they are, in fact, different aspects of it.
HER HONOUR: But they are different aspects of the same controversy. What you say is they had no power to investigate and if they did they did not do it properly. It is the one controversy, I would have thought, plainly.
MR CORR: Yes, your Honour, but there was already in this Court the application to look at whether or not there was, in fact, the power, and that had been prosecuted but, even though there had been some delay before, the prosecutors were going ahead with it, were seeking to finalise the matter and have it brought before the Court. There was no interlocutory order protecting the rights of the prosecutors from this Court. The respondents indicated that they were going to proceed and that they had prepared a draft report and that they were seeking the views of the prosecutors on matters contained within that draft report and they were going to publish it. In that, the applicants in the Federal Court I submit were entitled to seek some sort of relief to prevent that going ahead in the event that if the original investigation were valid there were necessarily still some procedural steps of procedural fairness or natural justice still applied and that they could seek review of that matter.
I can see the arguments which have been put about it being in two courts, but there were two specific forms of relief being sought: the one in this Court in relation to saying no investigation valid whatsoever, and the other one in the Federal Court that if there is an investigation it has to be conducted in this particular manner. If the matter had been determined in this Court previously that the investigation were valid, then there would have been no difficulty in going to the Federal Court and seeking a review there on the basis that even though it were valid it was not carried out properly.
HER HONOUR: Yes. It is one thing to put it in that order; it is quite another thing to do it in the order in which you seek to do it - that is to say to have the investigation completed; query whether it has been done in a proper manner in the Federal Court; reserving until later in the day, reserving until the eleventh hour the very first question, namely whether there was power for the investigation to be carried out.
MR CORR: Yes, I would still be submitting that the prosecutors were endeavouring to have that brought on.
HER HONOUR: The file does not suggest so, so if you wish to convince me of that, perhaps you should do it now. The file does not suggest that you have been engaging in any active pursuit of having this matter heard expeditiously or, indeed, at all in this Court.
MR CORR: No, it has to be admitted that there was delay until earlier this year. However, since then - - -
HER HONOUR: More like later this year, was it not? The application books, for example, do not exist, do they?
MR CORR: I think that there was a settlement of the application books that in annexure G of the affidavit filed by my friend that a Mr Popple, the Deputy Registrar of this Court, said, on 22 May 1996:
I enclose herewith the settled index to the application book in the above-named matter, together with a copy of a letter that I have sent to the Aboriginal Legal Service.
This letter having been sent to Mr Vermeesch at the Australian Government Solicitor's Office acting for the respondents. That there had been the settlement of the application book.
Following that there was the letter of 29 May from Mr Vermeesch, which I have referred your Honour to previously, referring to the matter about prohibition no longer being applicable and therefore the application in relation to the amendment to include certiorari. As I indicated to your Honour there was some difficulty due to the changes in personnel in the Aboriginal Legal Service at that time, which delayed matters but, nevertheless, there was the ongoing attempt to settle the matter and to have the matter brought before the Court.
HER HONOUR: What ongoing attempt? The application books have not been filed, have they?
MR CORR: I think that was as a result of the letter of Mr Vermeesch about the prohibition no longer being available.
HER HONOUR: Well, I do not see anything in the file to suggest that you have made any effort to have - well I certainly see nothing to suggest that you made any effort to have this matter called on at a time before the investigation was complete.
MR CORR: Yes, those being finalised earlier this year. At that time in March through to May, June of this year the investigation was not yet complete; that the report had not been prepared and so on. My friend will undoubtedly assist me if I am incorrect there. As my friend has pointed out, in paragraph 81 of the affidavit the draft report was not sent out until 10 July of this year, so it was before that that the prosecutors were, in fact, seeking to have the - - -
HER HONOUR: Well how were you seeking to have the matter brought on? You certainly did not take what was the essential step to have the matter brought on, namely, preparing application books.
MR CORR: Yes. Your Honour could have reference to the annexures "C", "D" and "E" in the affidavit of my friend - notice that there are various matters there; notice of motion dated 29 February; then, also the letter in annexure "D" from Mr Everson the solicitor of the Aboriginal Legal Service, to Perin of the Australian Securities Commission, that being dated 1 March, in relation to the notice of constitutional matter and the order, and the notice of motion returnable on 17 April, and then on 7 May - - -
HER HONOUR: That is last year.
MR CORR: No, that is this year.
HER HONOUR: That is this year? Sorry.
MR CORR: Yes, that the prosecutors were, in fact, endeavouring to have the matter settled, can be seen from the documents which - - -
HER HONOUR: Have the matter settled? Have the matter listed.
MR CORR: Have the matter brought on - to have taken some steps to have the matter brought before the Court. And, as I said, the - - -
HER HONOUR: I do not understand this notice of motion dated 29 February 1996, referring to a notice of motion returnable on 17 April, for a writ of prohibition.
MR CORR: Yes, your Honour. That, I think, was something that was required as a result of Justice McHugh's orders.
HER HONOUR: I do not understand why that might be so, and I do not see what that has got to do with getting the matter ready for hearing.
MR CORR: Yes, but, in any respect, your Honour, in annexure "D", the letter of Mr Everson, I understand further conversations with the Court, and the letter which was sent out by this Court on 7 May in relation to - - -
HER HONOUR: That is nothing on your part. It does not suggest anything, really, on your part to get the matter ready for hearing.
MR CORR: Yes, your Honour. However, if your Honour refers to annexure "G", that is sent out by a Mr Popple on 22 May, the settled index to the application book, that - - -
HER HONOUR: It is still not any action on your part.
MR CORR: As I understand it, your Honour, an application book cannot be settled without the - - -
HER HONOUR: No, but the index could have been settled, I should have thought, if you had wished it to be so, 12 months earlier.
MR CORR: Yes, there was a delay, your Honour, but undoubtedly there had been some action at that stage to settle the application book, and that, as was stated then, the letter in annexure "H", which - the raising by the respondents of the question of whether or not there was, in fact, a remedy available, was something which delayed the settlement.
So, that is why it was activity of the respondents which led to the delay, at this stage, in any instance, your Honour. Anyway, your Honour, regardless of any delay which may have occurred, there is the overriding consideration of the Court being able to have something which has come before it still available for the Court to make orders about and in this particular case it is submitted, if there is not an interlocutory application, then all that would be available to the Court would be the bare declaration as occurred in Ainsworth - that there would not be, the Court being able to exercise its full jurisdiction and say, "This investigation is invalid and everything arising from it is invalid. No investigation of this nature shall occur, or if it has occurred, nothing shall be done with it." That all would be available would be for the Court to say, "It was wrong," but nothing further, and we would be submitting the protection of the ability of the Court to make orders in relation to the entire controversy which is before the Court is overriding and for that reason there should be the grant of the interlocutory application. Those would be my submissions, your Honour.
HER HONOUR: Yes, thank you, Mr Corr.
The prosecutors in this matter seek an order granting leave to amend their application for prerogative relief and an injunction restraining publication of the report of an investigation carried out by the respondent. Assuming all other matters in favour of the prosecutors, including power to make the orders in question, it is clear that the making of those orders must involve a discretionary element. That discretion is to be exercised in a context in which the prosecutors have participated in the investigation and have not attempted to bring the matter on for hearing until the investigation was complete or, if not complete, nearly complete.
Moreover, the prosecutors have commenced proceedings in the Federal Court of Australia with a view to preventing publication of the report, which proceedings, it seems, could have raised the precise questions sought to be argued in this Court. There are real questions whether separate proceedings with respect to the same controversy can be maintained simultaneously in this Court and in the Federal Court. That aside, it is clearly undesirable that this Court should make orders in what have been essentially dormant proceedings at a time when proceeding with respect to the controversy are being litigated in the Federal Court. The appropriate order in the circumstances is that the summons filed on 2 October 1996 be dismissed. Does anybody wish to raise the question of costs?
MR GRIFFITH: Your Honour, can I raise a question as to the status of the order of Justice McHugh of February last year?
HER HONOUR: Not without appropriate paperwork. I think that- - -
MR GRIFFITH: Your Honour will not permit me to have the paperwork in arrears?
HER HONOUR: I do not think that is desirable.
MR GRIFFITH: If your Honour pleases. Your Honour, we would ask for costs for today's proceedings.
MR CORR: We submit it should be costs in the cause, your Honour.
HER HONOUR: I will dismiss it with costs.
AT 3.42 PM THE MATTER WAS CONCLUDED
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