Davison v The Commonwealth of Australia and ANOR C9/1997 [1997] HCATrans 418 (11 December 1997)

IN THE HIGH COURT OF AUSTRALIA

Registry No C9 of 1997

B e t w e e n -

CLIVE DAVISON

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

THE AUSTRALIAN CAPITAL TERRITORY

Second Defendant

Summons for Directions

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 DECEMBER 1997, AT 9.31 AM

Copyright in the High Court of Australia

MR C. DAVISON appeared in person.

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: Your Honour, I appear with MR G.R. KENNETT. (instructed by the Australian Government Solicitor).

If I could say something before the other appearance is announced. As between myself and counsel for the ACT, subject to your Honour's views, we are agreed that the ACT perhaps could go first.

HIS HONOUR: Yes.

MR S. GAGELER: If your Honour pleases, I appear for the second defendant, the Australian Capital Territory. (instructed by the ACT Government Solicitor).

HIS HONOUR: Gentlemen, the matter has been called on for directions and the question is how is this action to go forward from here. At the moment, both defendants having put on a pleading, there is a question whether it should go off for trial of some factual issues, if there are factual issues that lie between the parties. Where are we to go from here?

It occurs to me that it may be more productive, perhaps, Mr Davison, to hear from Mr Gageler first about what the defendants propose to do in the action because, as things stand at the moment, issue has been joined and, ordinarily speaking, that invites trial and if that is what is to happen then, subject to what the parties may say, I would remit the matter for trial, perhaps to the Federal Court but no doubt to some court. Subject to you having a contrary view, Mr Davison, I would propose to hear from Mr Gageler first. Are you content if I do that?

MR DAVISON: Yes, that is fine.

HIS HONOUR: Yes, thank you. Mr Gageler, what are we going to do with this action?

MR GAGELER: Your Honour, my proposal accords with your Honour's preliminary view, that is that the matter is appropriate to be remitted to the Federal Court.

HIS HONOUR: What is there in issue between the parties factually?

MR GAGELER: Factually, probably not very much and probably what is potentially in issue could be sorted out fairly readily by agreement.

HIS HONOUR: Yes. Your defence, if I may say so, is, if I say "spare", that may perhaps convey the general tenor of it.

MR GAGELER: Your Honour mentioned a defence as having been put on. I think that may not be strictly correct. The Court may have been provided with a proposed defence which was not filed within time and I would need to seek an order from the Court under Order 60 rule 6 for an extension of time for the filing of that document.

If your Honour has seen it, it raises a question of standing in the first paragraph and in the final paragraph fleshes that out a little by pleading, really, points of law that the Supreme Court of the ACT is not an agency within the meaning of the FOI Act of the Commonwealth and further, or in the alternative, that the transcript of proceedings which is the document, I understand, Mr Davison was seeking, is not a document that, in any event, can be sought under the Commonwealth Freedom of Information Act.

HIS HONOUR: This may be a question that, if asked, should not be answered and you should not feel compelled to answer it. Is it a document that is available for production under ACT legislation or ACT arrangements, assuming them to be valid? As I say, you need not feel pressed to answer that if it would embarrass you.

MR GAGELER: It does not embarrass me. The answer is, if it exists it is a document that can be obtained either directly from the ACT Magistrates' Court, which is its provenance - and I do not know if Mr Davison has made any attempt to do so - or pursuant to the ACT Supreme Court Rules, Order 80 rule 11. Mr Davison did attempt to obtain the document pursuant to that route from the ACT Supreme Court. He was told by the registrar, "We do not have that document on the Supreme Court file. You should first check to see whether or not such a document exists with the ACT Magistrates' Court." It was after that exchange of correspondence that he made his freedom of information request and we find ourselves here today.

HIS HONOUR: Again, I may well be straying a long way from what the proper purpose of these proceedings ought to be and perhaps I am simply reliving my yesterdays in the commercial list, Mr Gageler, that on those occasions I used to inquire of parties what the real dispute was about and whether they may not, on occasions, focus on that dispute rather than on other aspects, interesting as they are, but, as I say, I stray, and I just wonder whether we are not losing sight of the principal aim of parties. Perhaps we are not.

MR GAGELER: If your Honour is suggesting that some sensible discussions between the parties might resolve the matter entirely, I entirely agree, and having Mr Davison finally in a place where we can talk to him may result in that, your Honour.

So far as the issues in the case are concerned, there is a disconformity between the relief claimed in the statement of claim and the facts, as best we can ascertain them, as pleaded, and when the factual allegations are analysed, what Mr Davison is really complaining about is that he made a freedom of information request to the ACT Supreme Court. That request, he says, was pursuant to the Commonwealth Freedom of Information Act. He says that the ACT Supreme Court refused that request and he says he has a right to appeal to the Administrative Appeals Tribunal of the Commonwealth, and the Administrative Appeals Tribunal of the Commonwealth has refused jurisdiction. That, in essence, is what the case is about as a matter of law.

Whether or not the Commonwealth Administrative Appeals Tribunal has jurisdiction is a matter to be determined by reference to the Commonwealth Freedom of Information Act. When one goes to the provisions of the Commonwealth Freedom of Information Act it is by no means obvious or necessary that the case will, in any way, turn on the validity of the Australian Capital Territory (Self-Government) Act. I am quite happy to take your Honour through the relevant provisions if that would be of assistance.

HIS HONOUR: I had a quick look at the provisions, no more than that, Mr Gageler, and it seemed to me that a question may be said to arise - I express no view on whether it does - that turns on whether the legislation that took the ACT Supreme Court Act into the ACT purview is good or bad. That may arise.

MR GAGELER: Your Honour, it may arise, on one construction of the legislation but it is not, by any means, the only question that arises and if the case can be decided, if it has to be decided, on non-constitutional grounds, then, in accordance with normal practice, that would be the way to decided it without raising that larger issue.

HIS HONOUR: What do you say I should do this morning? One: you want leave to file out of time the defence?

MR GAGELER: Yes, and, two: remit it to the Federal Court in Canberra.

HIS HONOUR: Yes, and is there any other order that you say I should make?

MR GAGELER: Costs be costs in the cause and certify for counsel.

HIS HONOUR: Yes. Now, Mr Solicitor, do you wish to add anything to what Mr Gageler has said?

MR GRIFFITH: Nothing that would be very effective, your Honour. It does seem to us that there are issues of, for example, construction of section 5 of the Commonwealth Act: whether the court is an agency. There is issue of relief; there is issue of standing and that when one adds that together there seems to be no discrete point appropriate to remain in this Court, an underlying constitutional point identified. It must be, as my learned friend says, the way it is identified it is far too wide. But that would be a matter where the Court would have the advantage of the primary judge were a point ultimately to arise which was appropriate for this Court's consideration. We feel remitter is inevitable.

HIS HONOUR: Yes. Do you seek any direction or order other than the directions and orders which Mr Gageler seeks?

MR GRIFFITH: No, your Honour.

HIS HONOUR: Yes. Thank you, Mr Solicitor. Now, Mr Davison, if you would be good enough to stand while I have a discussion with you.

MR GRIFFITH: Sorry, your Honour, I should have said there was one minor matter.

HIS HONOUR: Sorry, Mr Davison, we have just got you to your feet and what happens, he stands up. Yes. Perhaps if you would sit down.

MR GRIFFITH: Your Honour, I do not know whether I am helping my learned friend but we have copies of the documents pleaded in the pleading and we have been requested, your Honour, by the second defendant to give them copies of those documents but we cannot because of Privacy Act reasons.

HIS HONOUR: Why, when they are mentioned in a pleading?

MR GRIFFITH: Your Honour, that is the point I was going to raise. It is the plaintiff's obligation then to give them to parties who do not have them but what I was going to suggest, it would make things a lot simpler if Mr Davison would either consent to us handing over our copies or himself delivering copies to the ACT who do not yet have them.

HIS HONOUR: Yes, thank you. Now, Mr Davison, there are a number of things that I think we need to speak of. Firstly, as I said, it is important no doubt to keep in mind the objectives that you may have in this litigation. Those are for you, they are not for me. You may, you may not, think it useful to speak with the representatives of the other parties this morning to see whether you can achieve the objectives that you want to achieve. You want to look at some documents; you want access to some documents. I do not know whether access can be obtained but it may be worthwhile speaking to the other parties this morning.

The second set of issues is where we go now in this action. First, there is a relatively, apparently, routine matter. The ACT wants to file its defence. It wants to file its defence later than the times prescribed by the Rules of Court. Ordinarily, there would be no difficulty about making such an order. Is there any difficulty you want to point to?

MR DAVISON: No, I do not have any objections to that, your Honour.

HIS HONOUR: Then, Mr Gageler, you will have leave to file the defence out of time. Time will be enlarged until 12 December 1997.

MR GAGELER: If your Honour pleases.

HIS HONOUR: Then the further question is whether the action proceeds in this Court or in another court. Ordinarily speaking, if there is to be a trial of the action this Court would remit it for trial to another court. The Federal Court in Canberra is perhaps the obvious candidate for remitting the action where it would be heard in the ordinary way. What do you say about remitting the action to the Federal Court?

MR DAVISON: I understood that the matter would be dealt with by the High Court because it is a constitutional matter - on a constitutional question and it needs to be decided by the High Court. I thought that it was only really the High Court that could decide such issues, not the Federal Court.

HIS HONOUR: Any court in Australia can decide constitutional issues. There is no doubt that the High Court has ultimate responsibility for those issues. Where, as here, there are said to be questions other than constitutional questions, the ordinary practice would be that the action would be remitted for trial to another court which would decide the issues, decide any disputed question of fact and decide the constitutional issue which would then, ordinarily speaking, come up on appeal to this Court. Is there any reason why we should not adopt that practice in this case?

MR DAVISON: Well, I dispute that there are issues that need to be decided other than constitutional issues.

HIS HONOUR: Yes. Mr Gageler pointed to a number of issues which, at least, seem to be raised on the pleadings, questions of standing to sue, that is, whether the action can properly be brought by you, and questions of construction of the Commonwealth Freedom of Information Act, without regard to the constitutional issues that arise. At least, to me at the moment, it seems plain that those issues do arise and that they are proper for determination, not in this Court, but on remitter to the Federal Court. Is there anything else that you would point me to or say to me about that aspect of the matter?

MR DAVISON: I believe that the ACT Supreme Court should really be regarded - the Supreme Court office should be regarded as a Commonwealth agency and so, therefore, the Commonwealth legislation applies, that is the Freedom of Information Act.

HIS HONOUR: Yes. Is there anything else that you would want to say on this aspect of the matter?

MR DAVISON: No, I think that is all.

HIS HONOUR: The third matter that we need to deal with is this question of making documents available. You heard Dr Griffith, the Solicitor-General for the Commonwealth, say that they have copies of the various letters and other documents that are mentioned in your statement of claim and ACT want to get hold of them. Is there any reason why the Commonwealth should not make copies of those documents that are mentioned in your pleading available to the representatives of the ACT?

MR DAVISON: No, I do not see any reason.

HIS HONOUR: Mr Davison, the state of the matter being as it is and there being disputed issues, including issues which, as the pleadings presently stand, extend beyond constitutional questions, I am of the opinion that the action should be remitted to the Federal Court.

It will be, therefore, remitted to the Federal Court in its ACT Registry. The order for remitter will be in the ordinary form which, in effect, says that proceedings and steps taken in the matter so far stand and further proceedings will be in accordance with the procedures of the Federal Court.

The costs of this application should, in my opinion, be costs in the cause. There will, as I say, in addition, be the order that I earlier mentioned, extending the time for filing and delivering the defence of the second defendant until 12 December 1997. There will be orders in those terms.

As I said to you at the outset, Mr Davison, this is an opportunity which you have now to speak to the representatives of the ACT to see whether the underlying problem that you have encountered cannot be solved some other way rather than dragging yourself through the joys of the process of litigation. It may be that it can. I do not know whether it can but you now have a golden opportunity to speak to the ACT people and say, "Well, look, I want to get hold of these documents. How can I? What can you do to help me get them?" But, as I say, those are matters for you.

There will be orders in the terms that I have mentioned. I will adjourn.

AT 9.50 AM THE MATTER WAS CONCLUDED