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High Court of Australia Transcripts |
Office of the Registry
Melbourne No M24 of 1998
B e t w e e n -
PCS OPERATIONS PTY LTD, PCS RESOURCES PTY LTD, P & C STEVEDORES PTY LTD,DONALD GORDON McGAUCHIE, PAUL XAVIER HOULIHAN and JAMES WILLIAM FERGUSON
Applicants
and
MARITIME UNION OF AUSTRALIA
First Respondent
PETER BREUKERS, JAKE HAUB and KIERAN COYLE
Second Respondent
PATRICK STEVEDORES NO 1 PTY LTD (Under Administration)
Third Respondent
PATRICK STEVEDORES NO 2 PTY LTD (Under Administration)
Fourth Respondent
PATRICK STEVEDORES NO 3 PTY LTD (Under Administration)
Fifth Respondent
NATIONAL STEVEDORING TASMANIA PTY LTD (Under Administration)
Sixth Respondent
PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD
Seventh Respondent
LANG CORPORATION LTD
Eight Respondent
STRANG PATRICK HOLDINGS PTY LTD
Ninth Respondent
NATIONAL STEVEDORING HOLDINGS PTY LTD
Tenth Respondent
PIZEN PTY LTD
Eleventh Respondent
INTRAVEST PTY LTD
Twelfth Respondent
CUMBERLANE HOLDINGS PTY LTD
Thirteenth Respondent
EQUITIUS PTY LTD
Fourteenth Respondent
JAMISON EQUITY LTD
Fifteenth Respondent
SERENADE PTY LTD
Sixteenth Respondent
SCARABUS PTY LTD
Seventeenth Respondent
PATRICK STEVEDORES HOLDINGS PTY LTD
Eighteenth Respondent
PATRICK STEVEDORES OPERATIONS PTY LTD
Nineteenth Respondent
CHRISTOPHER D'ARCY CORRIGAN
Twentieth Respondent
WILLIAM CLAYTON
Twenty-First Respondent
ROBERT DUNN
Twenty-Second Respondent
COMMONWEALTH OF AUSTRALIA
Twenty-Third Respondent
and
PETER KEASTON REITH
Twenty-Fourth Respondent
Office of the Registry
Melbourne No M25 of 1998
B e t w e e n -
MARITIME UNION OF AUSTRALIA
First Applicant
PETER BREUKERS, JAKE HAUB and KIERAN COYLE
Second Applicants
and
PATRICK STEVEDORES NO 1 PTY LTD (Under Administration)
First Respondent
PATRICK STEVEDORES NO 2 PTY LTD (Under Administration)
Second Respondent
PATRICK STEVEDORES NO 3 PTY LTD (Under Administration)
Third Respondent
NATIONAL STEVEDORING TASMANIA PTY LTD (Under Administration)
Fourth Respondent
PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD
Fifth Respondent
LANG CORPORATION LTD
Sixth Respondent
STRANG PATRICK HOLDINGS PTY LTD
Seventh Respondent
NATIONAL STEVEDORING HOLDINGS PTY LTD
Eighth Respondent
PIZEN PTY LTD
Ninth Respondent
INTRAVEST PTY LTD
Tenth Respondent
CUMBERLANE HOLDINGS PTY LTD
Eleventh Respondent
EQUITIUS PTY LTD
Twelfth Respondent
JAMISON EQUITY LTD
Thirteenth Respondent
SERENADE PTY LTD
Fourteenth Respondent
SCARABUS PTY LTD
Fifteenth Respondent
PATRICK STEVEDORES HOLDINGS PTY LTD
Sixteenth Respondent
PATRICK STEVEDORES OPERATIONS PTY LTD
Seventeenth Respondent
CHRISTOPHER D'ARCY CORRIGAN
Eighteenth Respondent
WILLIAM CLAYTON
Nineteenth Respondent
ROBERT DUNN
Twentieth Respondent
NATIONAL FARMERS FEDERATION
Twenty-First Respondent
PCS OPERATIONS PTY LTD
Twenty-Second Respondent
PCS TRAINING SERVICES
Twenty-Third Respondent
P AND C STEVEDORES PTY LTD
Twenty-Fourth Respondent
DONALD GORDON McGAUCHIE
Twenty-Fifth Respondent
PAUL XAVIER HOULIHAN
Twenty-Sixth Respondent
JAMES WILLIAM FERGUSON
Twenty-Seventh Respondent
COMMONWEALTH OF AUSTRALIA
Twenty-Eighth Respondent
and
PETER KEASTON REITH
Twenty-Ninth Respondent
Ex parte -
THE HONOURABLE DARYL WILLIAMS, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
Office of the Registry
Brisbane No B7 of 1998
B e t w e e n -
PATRICK STEVEDORES OPERATIONS NO 2 PTY LTD
First Applicant
LANG CORPORATION LTD
Second Applicant
STRANG PATRICK HOLDINGS PTY LTD
Third Applicant
NATIONAL STEVEDORING HOLDINGS PTY LTD
Fourth Applicant
PIZEN PTY LTD
Fifth Applicant
INTRAVEST PTY LTD
Sixth Applicant
CUMBERLANE HOLDINGS PTY LTD
Seventh Applicant
EQUITIUS PTY LTD
Eighth Applicant
JAMISON EQUITY LTD
Ninth Applicant
SERENADE PTY LTD
Tenth Applicant
SCARABUS PTY LTD
Eleventh Applicant
PATRICK STEVEDORES HOLDINGS PTY LTD
Twelfth Applicant
PATRICK STEVEDORES OPERATIONS PTY LTD
Thirteenth Applicant
and
MARITIME UNION OF AUSTRALIA
First Respondent
PETER BREUKERS, JAKE HAUB and KIERAN COYLE
Second Respondent
PATRICK STEVEDORES NO 1 PTY LTD (Under Administration)
Third Respondent
PATRICK STEVEDORES NO 2 PTY LTD (Under Administration)
Fourth Respondent
PATRICK STEVEDORES NO 3 PTY LTD (Under Administration)
Fifth Respondent
NATIONAL STEVEDORING TASMANIA PTY LTD (Under Administration)
Sixth Respondent
CHRISTOPHER D'ARCY CORRIGAN
Seventh Respondent
WILLIAM CLAYTON
Eighth Respondent
ROBERT DUNN
Ninth Respondent
NATIONAL FARMERS FEDERATION
Tenth Respondent
PCS OPERATIONS PTY LTD
Eleventh Respondent
PCS OPERATIONS SERVICES
Twelfth Respondent
P & C STEVEDORES PTY LTD
Thirteenth Respondent
DONALD GORDON McGAUCHIE
Fourteenth Respondent
PAUL XAVIER HOULIHAN
Fifteenth Respondent
JAMES WILLIAM FERGUSON
Sixteenth Respondent
COMMONWEALTH OF AUSTRALIA
Seventeenth Respondent
PETER KEASTON REITH
Eighteenth Respondent
GAUDRON J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 2.01 PM
Copyright in the High Court of Australia
HER HONOUR: Could I take the appearances in the first matter, PCS Operations Pty Ltd and Ors v Maritime Union of Australia and Ors.
MR N.J. YOUNG, QC: May it please your Honour, I appear with my learned friend, MS P.M. TATE, for the applicants on that notice of motion. (instructed by Minter Ellison)
MR K.H. BELL, QC: If your Honour pleases, I appear on behalf of the first respondent, the Maritime Union of Australia, and the three individuals named as the second respondents, Peter Breukers, Jake Haub and Kieran Coyle. (instructed by Maurice Blackburn & Co)
MR A.M. POMERENKE: If it please your Honour, I appear for the twenty-first respondent, Mr William Clayton. (instructed by Arthur Robinson and Hedderwicks)
HER HONOUR: Just the twenty-first respondent? I am sorry, I have someone appearing for the twentieth to the twenty-first respondents.
MR POMERENKE: I am sorry, I only appear for the twenty-first respondent.
HER HONOUR: Very well. Who is the twentieth respondent. Can you help me?
MR YOUNG: Mr Corrigan.
MR J.E. MURDOCH: Your Honour, I am appearing for the respondents, Christopher Corrigan and Robert Dunn. (instructed by Blake Dawson Waldron)
HER HONOUR: What numbers are they?
MR MURDOCH: In M25, I believe they are the eighteenth and the twentieth.
MR YOUNG: Your Honour, on our notice of motion they are the twentieth and the twenty-second respondent.
HER HONOUR: Twentieth and the twenty-second. Thank you Mr Young. Mr Murdoch, you appear for the twentieth and twenty-second.
MR MURDOCH: Yes, your Honour.
HER HONOUR: Mr Pomerenke, is it you appear for the twenty-first?
MR POMERENKE: Yes, I do, your Honour.
HER HONOUR: Thank you. I have cleared that up.
MS W.A. HARRIS: Your Honour, I appear for the twenty-third and twenty-fourth respondents on that appliction with MR G.T. PAGONE, QC, who is not here today. (instructed by Dunhill Madden Butler)
HER HONOUR: Yes. Well, he does not appear then, I take it. Thank you, Ms Harris.
MR G. GRIFFITH, QC: Your Honour, I appear with my learned friend, MS W.A. HARRIS, for the Attorney-General. (instructed by Dunhill Madden Butler)
HER HONOUR: Is he in that matter yet?
MR GRIFFITH: Your Honour, he supports it, but he supports it.....the notice of motion.
HER HONOUR: I will call your motion in due course, Dr Griffith. Yes, Mr Gotterson?
MR R.W. GOTTERSON, QC: If your Honour pleases, in M24 I appear for the seventh to the nineteenth respondents inclusive. (instructed by Freehill Hollingdale and Page)
HER HONOUR: In that matter I hold a communication from Messrs Phillips Fox who act on behalf of Patrick Stevedores No 1 Pty Ltd (Under Administration), Patrick Stevedores No 2 Pty Ltd (Under Administration), Patrick Stevedores No 3 Pty Ltd (Under Administration) and National Stevedoring Tasmania Pty Ltd (Under Administration). Those companies under administration do not intend to appear at the hearing of this matter and they indicate that they will abide by the terms of any order made by the Court.
Could we call the next matter, please. That is the Attorney-General's application.
Maritime Union of Australia & Others v patrick Stevedore No 1 Pty Ltd & Others, ex parte the Honourable Daryl Williams, Attorney-General for the Commonwealth was called.
MR G. GRIFFITH, QC: Your Honour, I do appear for the Attorney-General with my learned friend, MS W.A. HARRIS. (instructed by Dunhill Madden Butler)
MR N.J. YOUNG, QC: If your Honour pleases, I appear with my learned friend MS P.M. TATE, for the twenty-second to the twenty-seventh respondents to that notice of motion, again the PCS companies and associated directors. (instructed by Minter Ellison)
MR J.E. MURDOCH: Your Honour, I am appearing for Christopher Corrigan and Robert Dunn who, in this matter, are the eighteenth and the twentieth respondents. (instructed by Blake Dawson Waldron)
MR R.W. GOTTERSON, QC: If your Honour pleases, in this matter, again for the fifth to the seventeenth respondents. (instructed by Freehill Hollingdale and Page)
HER HONOUR: And Ms Harris without Mr Pagone?
MS W.A. HARRIS: Indeed, for the twenty-eighth and twenty-ninth, your Honour. (instructed by Dunhill Madden Butler)
HER HONOUR: In that matter I hold another communication from Messrs Phillips Fox to the same effect with respect to the same parties indicating the same terms, that they do not intend to appear at the hearing of the motion and that they will abide by the terms of any order made by the Court.
MR K.H. BELL, QC: I should announce my appearance in that matter for the Maritime Union of Australia and Peter Breukers, Jake Haub and Kieran Coyle, your Honour. (instructed by Maurice Blackburn & Co)
MR A.M. POMERENKE: Your Honour, I should also announce my appearance for the nineteenth respondent. (instructed by Arthur Robinson and Hedderwicks)
HER HONOUR: Very well. May these two motions be heard together?
MR GRIFFITH: Of course, your Honour.
HER HONOUR: A third motion has been filed, matter No B7 of 1998, which seems to be not relevantly distinguishable from the motion in M24 of 1998.
MR R.W. GOTTERSON, QC: That is so, it is not, your Honour. In that motion I appear for the first - - -
HER HONOUR: Before you appear, let me ask the people who appear in the two matters first called if there is any objection to that matter being called on at this stage?
MR..... No, your Honour.
HER HONOUR: Is there anybody who can speak, however, for Patrick Stevedores Nos 1, 2, 3 and National Stevedoring Tasmania Pty Ltd? No. If there is no objection to the matter being called on, I will call the matter on and indicate I will not proceed to any final order in that matter without hearing from those parties for whom Phillips Fox acted in the first two matters.
MR GOTTERSON: Yes, your Honour, unless we can arrange for some communication in regard to that.
HER HONOUR: Yes. I will now take the appearances in that matter.
MR R.W. GOTTERSON, QC: If your Honour pleases, I appear for the first to thirteenth applicants. (instructed by Phillips Fox)
HER HONOUR: Are there more than - - -
MR GOTTERSON: No, that is all the applicants.
HER HONOUR: You appear for all the applicants in that motion?
MR GOTTERSON: Yes, I should have put it that way, your Honour.
MR K.H. BELL, QC: Your Honour, I also appear on behalf of the Maritime Union of Australia, Peter Breukers, Jake Haub and Kieran Coyle, being the first respondent and the second respondents. (instructed by Maurice Blackburn & Co)
MR A.M. POMERENKE: I appear for the eighth respondent, your Honour. (instructed by Arthur Robinson & Hedderwicks)
MR J.E. MURDOCH: Your Honour, for the seventh and ninth. (instructed by Blake Dawson Waldron)
MR N.J. YOUNG, QC: If your Honour pleases, I appear with MS P.M. TATE for the eleventh to sixteenth respondents. (instructed by Minter Ellison)
MS W.A. HARRIS: Your Honour, I appear for the seventeenth and eighteenth respondents. (instructed by Dunhill Madden Butler)
HER HONOUR: Have counsel been able to agree amongst themselves who should proceed and in what order?
MR GRIFFITH: Some of us, your Honour, but the view the Attorney has taken which has received acquiescence from those counsel to whom I have spoken is that the Attorney appears to support the applications for - - -
HER HONOUR: The Attorney has his own motion, Dr Griffith. You are not here to support anyone. You are not a party to the other matters. You make your own motion.
MR GRIFFITH: Yes, your Honour.
HER HONOUR: Let us at least keep the procedures clear in what obviously is a complicated set of proceedings.
MR GRIFFITH: Yes, your Honour. In that case, if I may rephrase it. The Attorney-General makes his own motion on the basis that the Attorney-General takes a view that the other substantive applications are appropriate for application to the Court and he wishes to indicate that that view by himself applying, which of course has the additional coercive effect of section 40(1), in that context the Attorney is content, subject to your Honour's direction, to let those moving not as of right to make out their case to your Honour as indicating the basis upon - - -
HER HONOUR: So your separate motion will be dealt with last.
MR GRIFFITH: Yes, your Honour.
HER HONOUR: Very well.
MR YOUNG: I think that has the consequence that I commence, your Honour.
HER HONOUR: Yes, that would seem reasonable, yours having been the first filed. Would you please tell me what constitutional questions have arisen, when they arose and what precisely they are. I take it that there has been no pleading which crystallises the questions?
MR YOUNG: That is correct, your Honour, there is no pleading which crystallises the questions.
HER HONOUR: Has any point been taken before Mr Justice North crystallising the questions?
MR YOUNG: The only way in which a point has been taken, your Honour, is that the parties announced to his Honour that this application would be made to raise jurisdictional issues of a constitutional kind that would be the subject of a removal application under section 40(1) but, aside from that, no, your Honour.
HER HONOUR: Very well. Would you now tell me the precise constitutional questions that you say have notionally arisen by reason of that rather generalised statement to Mr Justice North.
MR YOUNG: Yes. Can I hand your Honour an outline of our argument and our constitutional notice under section 78B of the Judiciary Act. The two questions that, in our submission, arise in the cause and on the pleadings - - -
HER HONOUR: Tell me the points that you will take, I am sorry.
MR BELL: I object to this, your Honour. We have received a sea of paper in the last 24 hours. This adds to it considerably - a detailed outline of argument with reference to authorities.
HER HONOUR: We will all do our best as best we can, Mr Bell. Tell me the question that you would take as though it were a pleading.
MR YOUNG: Yes. The two points we seek to raise, your Honour, are related jurisdictional points concerning the jurisdiction of the Federal Court. They necessarily arise because - - -
HER HONOUR: Only if they are taken. They only arise if they are taken, do they not? I mean, I would have thought, reading this documentation, that there is a decision of this Court in Fencott v Muller which deals with accrued jurisdiction and there is the recent decision of this Court in Gould v Brown which deals with cross-vesting, both of which would indicate jurisdiction. Unless you tell me the exact point that is taken, I cannot see that any point is taken. It is not sufficient that there are questions out there in the ether that might arise.
MR YOUNG: I am endeavouring to get there directly, your Honour. The question of jurisdiction necessarily arises because the Federal Court must have jurisdiction conferred by a Commonwealth statute, otherwise it cannot hear and determine the matter that is before it. Jurisdiction arises as an issue without the pleadings having at this point of time taken the issue, in our submission. The reason why it arises in the case of my clients - - -
HER HONOUR: The precise question that arises under the Constitution or involves its interpretation.
MR YOUNG: The precise question is this, your Honour: there is no jurisdiction conferred on the Federal Court either by the cross-vesting legislation or by the application of the principles in Fencott v Muller in the circumstances of the cause that is mounted against my clients.
HER HONOUR: Can we go to the first one. The question that arises then is whether the cross-vesting legislation is valid, is that correct?
MR YOUNG: In particular, your Honour, whether section 4(1) of the Victorian Act is valid.
HER HONOUR: And it is contended by those whom you represent that it is invalid, is it?
MR YOUNG: Yes, it is, your Honour.
HER HONOUR: Can we have that clearly said? It does not appear in any document that I have yet seen. It is contended by those for whom Mr Young appears that sections 4 and 12 - is it?
MR YOUNG: No, 4 and 9, your Honour; 4 of the State Act and section 9 of the Commonwealth Cross-Vesting Act are, in each case, constitutionally invalid.
HER HONOUR: Yes, and that is a question that only arises if there is no what is commonly called accrued jurisdiction, so what do you contend in relation to that?
MR YOUNG: There is no accrued jurisdiction because in this case there are no federal claims against the respondents for whom I appear at all.
HER HONOUR: Very well. What do you say? Do you say that there is no common substratum of facts or do you say that even if there is a common substratum of facts, Fencott v Muller was wrongly decided?
MR YOUNG: No, what we say is this, your Honour: the question of a common substratum of facts does not arise in the first instance. Every decided case deals with a federal claim against the defendant to which are attached State claims or common law claims arising out of the common substratum of fact.
HER HONOUR: Let us identify the constitutional question that you then say arises.
MR YOUNG: The fact is, your Honour, that where there are no federal claims against a respondent at all, there is nothing to which jurisdiction can accrue, there being no federal claims against the respondents for whom we appear, and so there can be no matter within the meaning of sections 75, 76 and 77 of the Constitution.
HER HONOUR: And that depends, does it, on whether there is a common substratum of facts?
MR YOUNG: No, your Honour.
HER HONOUR: What does it depend on?
MR YOUNG: The cases to which your Honour refers, Fencott v Muller and other cases, are all cases in which two categories of claims were mounted against a single defendant, a federal claim and an allegedly associated common law claim arising out of a common substratum of facts. There is no case, your Honour, in which it is said that non-federal claims against respondents are brought within the concept of a single justiciable matter simply because there are federal claims mounted against other respondents.
HER HONOUR: Well, there are Kennedy and Australasian Coal and Shale Employees' Federation.
MR YOUNG: I am dealing with that exact point, your Honour.
MR..........: And three others.
HER HONOUR: But, that aside, let me see if I understand this correctly. There are three causes of action pleaded against your client?
MR YOUNG: Yes, your Honour.
HER HONOUR: Two of those are conspiracy, is that correct?
MR YOUNG: Yes.
HER HONOUR: That same cause of action being pleaded against the Commonwealth and against - I think it is the - - -
MR YOUNG: Various Patrick companies.
HER HONOUR: - - - nineteenth respondent, who may or may not be sued on behalf of the Commonwealth.
MR YOUNG: That is so.
HER HONOUR: So you are party to a cause of action to which the Commonwealth is also a party?
MR YOUNG: Yes.
HER HONOUR: Well, what is the constitutional question that arises there?
MR YOUNG: There is in relation to that cause of action, your Honour - - -
HER HONOUR: Does that not come squarely within section 32 of the Federal Court Act?
MR YOUNG: In our respectful submission, no, your Honour.
HER HONOUR: The Commonwealth is a party, so it is not correct to describe it as a non-federal cause of action.
MR YOUNG: No, that is not so, your Honour. There is no legislation of the Commonwealth Parliament conferring jurisdiction on the Federal Court in cases - - -
HER HONOUR: No, but we have to get a question under the Constitution.
MR YOUNG: Yes, your Honour.
HER HONOUR: If we are concerned only with the interpretation of section 32, you do not get your foot in the door but, given that the Commonwealth is a party to two of those causes of action, what is the constitutional question that you say arises in relation to those causes of action?
MR YOUNG: The question is this, your Honour: section 77 permits the Parliament to make laws:
Defining the jurisdiction of any federal court other than the High Court.
That is with respect to any of the matters in sections 75 and 76 of the Constitution. The Federal Court is exercising jurisdiction in relation to these claims under the Workplace Relations Act, the Corporations Law - - -
HER HONOUR: Let us deal with it because the question is the Constitution. Let us deal with it in terms of sections 75 and 76. You understand it is not sufficient to say as a matter of statutory construction the Court does not have jurisdiction?
MR YOUNG: No, we understand that, your Honour. There has to be an issue arising under the Constitution.
HER HONOUR: Or involving its interpretation.
MR YOUNG: Yes, but an issue, in our submission, as to the jurisdiction of the Federal Court necessarily raises a matter under 75, 76 and 77.
HER HONOUR: What is the question that you say arises in relation to the conspiracy causes of action?
MR YOUNG: In the first place, your Honour, we say that section 32, which I think your Honour has mentioned, is not relevant. Section 32 would confer jurisdiction on the Federal Court if there was some other piece of federal legislation conferring jurisdiction on the Federal Court.
HER HONOUR: And this was an associated matter?
MR YOUNG: Yes.
HER HONOUR: One cause of action proceeds on the basis of breaches of Commonwealth laws and it involves the Commonwealth and a Minister.
MR YOUNG: Yes, it involves them in the conspiracy but there is no allegation against the Commonwealth or against my clients that any of them have committed any illegal act under any Commonwealth law. The allegation is confined to the tort of conspiracy which harks back to the anterior alleged agreement between the parties.
HER HONOUR: I am having difficulty. Do you say that the conspiracy actions are not matters within 75?
MR YOUNG: The conspiracy allegation against the Commonwealth is the matter - - -
HER HONOUR: It is the one cause of action.
MR YOUNG: It is within 75(iii)
HER HONOUR: And it is against you; it is a cause of this. Assuming for the moment it is a separate matter, as you must assume, must you not, for your argument?
MR YOUNG: Yes.
HER HONOUR: It is a matter in which the Commonwealth is a party.
MR YOUNG: Yes.
HER HONOUR: Is that not the end of it in constitutional terms?
MR YOUNG: In constitutional terms, that means the High Court has jurisdiction in relation to all matters in which the Commonwealth is a party but it does not follow, in our respectful submission, your Honour, that the Federal Court has any jurisdiction - - -
HER HONOUR: No, but you still have to give me a constitutional question. I am not concerned whether the Federal Court - this is not an application for prohibition.
MR YOUNG: No, we understand that, your Honour.
HER HONOUR: Yes. If it were, different questions might arise.
MR YOUNG: Yes.
HER HONOUR: You have come here on a motion for removal. I want to know what the constitutional question is in relation to the conspiracy causes of action.
MR YOUNG: The constitutional question, your Honour, is that in relation to those causes of action against my client - - -
HER HONOUR: No, against the Commonwealth - against all parties, including the Commonwealth and your client. It is not a separate cause of action against your clients, as I read the pleading.
MR YOUNG: I can accept that, your Honour.
HER HONOUR: Good. So it is a cause of action against all parties present at the Bar table, the four who are not, and that includes the Commonwealth and a Minister of the Crown.
MR YOUNG: Yes. Well, in our submission, your Honour, when one looks at the conspiracy allegation, it is totally an allegation of a common law nature. There is no allegation that either the Commonwealth or the parties for whom we appear have contravened any law in respect of which the Federal Court has jurisdiction.
HER HONOUR: So, what is the question?
MR YOUNG: The question is - well, we say, your Honour, this is a totally common law action and it does not fall - - -
HER HONOUR: That might ground prohibition - - -
MR YOUNG: Yes.
HER HONOUR: - - - but we are not concerned with that.
MR YOUNG: And it does not fall, in our submission, within 75(iii) in circumstances where you have other parties like my clients roped into that allegation. It does not become a matter - - -
HER HONOUR: You are saying that it is a sham claim?
MR YOUNG: No, your Honour, I am not saying it is a sham claim. We are submitting that section 75 would give the High Court jurisdiction in a matter in which the Commonwealth is being sued as a party.
HER HONOUR: And it is.
MR YOUNG: Yes. But that does not permit, in our submission, it to be said that the Federal Court has constitutionally authorised jurisdiction to deal with - - -
HER HONOUR: No, do not worry about what - it could have constitutionally authorised jurisdiction, could it not, to deal with any matter in which the Commonwealth is a party?
MR YOUNG: Yes.
HER HONOUR: Whether or not section 32 does that is another question, but we are not - you would not get removal into this Court to construe section 32 of the Federal Court Act, surely.
MR YOUNG: In our respectful submission, your Honour, those causes of action, when they are framed so as to bring in other alleged conspirators, do not have the consequence that jurisdiction can be conferred - - -
HER HONOUR: Have you got any authority anywhere to say that a matter in which the Commonwealth is being sued with other persons does not fall within 75(iii)? I would - - -
MR YOUNG: I cannot produce any authority for that, your Honour.
HER HONOUR: No, I would have thought not. And I think there must be plenty to the contrary, is there not?
MR YOUNG: I cannot assist your Honour. It may be that Mr Bell can, your Honour, but I doubt it.
HER HONOUR: I doubt that the Commonwealth would want to pursue the notion that that is in federal jurisdiction but, anyway, we will see.
MR YOUNG: Yes. None of that will touch, for instance, the second - - -
HER HONOUR: None of that touches the induced breach of contact.
MR YOUNG: And there we say, your Honour, there is no jurisdiction capable of being conferred.
HER HONOUR: Why?
MR YOUNG: Why?
HER HONOUR: Yes. Do you - - -
MR YOUNG: Two reasons, your Honour.
HER HONOUR: Yes. So this will give me the question that you want dealt with by this Court.
MR YOUNG: Yes. In relation to inducing breach of contract, the allegation against my clients is that by entering into a sublease of premises at Webb Dock and by taking an assignment - or by taking an assignment of that sublease and by purchasing equipment, they have induced and procured a breach of employment contract, solely a common law claim. The question then becomes, firstly - - -
HER HONOUR: They are contracts though which are the subject of other counts against the Patrick interests.
MR YOUNG: Against the employers for breach of the Workplace Relations Act.
HER HONOUR: Yes.
MR YOUNG: But only claims against the employers. There is a federal claim against the employers for breaching contract or breaching certified agreements and awards.
HER HONOUR: Yes.
MR YOUNG: The only claim against our clients, your Honour, is a tort. It does not arise out of the same facts at all.
HER HONOUR: Is that in effect your question, whether it arises out of the same facts?
MR YOUNG: No, we put the two questions in the area of accrued jurisdiction. The first is that the only claim against us here, in the context of tort, is a common law claim. There is no federal claim connected with those same facts against my clients. There is nothing to which the common law claim can accrue, looking at the position of my clients. And the second way in which we put it, your Honour, is that in any event, if that is not the right test, then there is nonetheless no common substratum of facts because the only facts alleged against my clients are not facts in common with the alleged breaches of contract that found the federal claims.
HER HONOUR: But they are involved with them to some extent.
MR YOUNG: Only in the sense, your Honour, that you need a breach of contract that the tortious conduct of procuring can relate to, but that does not mean that procurement arises out of the same substratum of facts as the breach of contract.
HER HONOUR: So is the question whether it is part of one and the same matter that is pleaded in the statement of claim?
MR YOUNG: Yes, your Honour, in that - no, it is not pleaded in the statement of claim.
HER HONOUR: I am sorry. Is the question really whether there is one matter as pleaded in the statement of claim, or there are several matters?
MR YOUNG: Yes, your Honour, but there are two dimensions to it. One is that as a defendant we only have against us common law claims and hence nothing of the kind spoken of in Fencott and that line of cases.
HER HONOUR: You might have a look at Kennedy in due course.
MR YOUNG: I will try to, your Honour, yes. And the alternative way of putting it is, leaving aside that first point, there is, in any event, no common substratum of facts demonstrated by anything that is pleaded, and hence there is no single matter capable of bringing within the jurisdiction of the Federal Court this aspect of this claim against us. And that, in our submission, raises, as Fencott v Muller and the other cases accepted, the constitutional issue as to whether there is a matter within sections 75, 76 and 77.
HER HONOUR: Or whether there is one matter or several matters.
MR YOUNG: Yes.
HER HONOUR: Are you content to have the question formulated as whether there is one or more than one - there is one matter as defined - - -
MR YOUNG: On the second leg of our argument, yes, your Honour. It does not really capture what we are trying to submit on the first leg.
HER HONOUR: The first is that it is a severable non-federal cause of action and therefore cannot, I suppose, be part of any other matter.
MR YOUNG: Yes, your Honour.
HER HONOUR: Yes, I understand that.
MR YOUNG: And those are the questions that, in our submission, arise - - -
HER HONOUR: Am I right in thinking that on the first matter you have to get the Court to reconsider Gould v Brown?
MR YOUNG: If there is no other basis for jurisdiction, other than section 4(1) and section 9 - - -
HER HONOUR: Of what?
MR YOUNG: Of the cross-vesting legislation.
HER HONOUR: No, you have to succeed on both points. For either question to arise you have to make good both propositions.
MR YOUNG: Yes, we have to demonstrate that neither is a proper basis for jurisdiction. As to Gould v Brown, your Honour, what we would say is that that is a case dealing with the provisions of the Corporations Law.
HER HONOUR: I know it does, but as a matter of principle it is said that there was no constitutional impediment to the cross-vesting of legislation.
MR YOUNG: Yes, but it said that in the context of provisions of limited scope compared to section 4(1). Section 4(1), your Honour - - -
HER HONOUR: You would certainly need to revisit Gould v Brown, would you not?
MR YOUNG: Yes, we accept that, your Honour.
HER HONOUR: And you would need to revisit Fencott v Muller for the first of your propositions.
MR YOUNG: No, your Honour. We embrace Fencott v Muller for both our propositions.
HER HONOUR: For the first, does not Fencott v Muller lay down one single test of common substratum of fact?
MR YOUNG: No, your Honour. All of the judgments in Fencott v Muller concluded that the identity of the parties was an important issue. Your Honour might remember that it related to the purchase of a business - indeed, the purchase of shares in a company which held the business - and there was an issue as to whether the claim brought by the purchased company for an indemnity fell within the same common substratum of facts. The majority held that it did because it was simply another way of framing the same claims. In other words, the purchasers could make their claims directly under section 52 for damages and misrepresentation, or the company they purchased had certain claims but arising out of the same sale transactions which it could bring.
The Court concluded that the fact that there was a different plaintiff did not make a difference; it was in substance the same claim. But it is very different when you have a defendant that is brought into the proceedings and the only claim, particularly if we focus on the tort of inducing breach, is a tortious claim and as against that defendant there are no federal claims to which that tortious claim can attach and there is no common substratum of fact. So we say we embrace Fencott v Muller and Stack and the other cases and, applying them, that falls outside it; there is no single matter.
HER HONOUR: That is a question, however, which presumably would involve no new principle; it would be a matter which it would be well open to the Federal Court to determine, as it has, I dare say, on hundreds of occasions since Fencott v Muller was determined.
MR YOUNG: We accept that, your Honour.
HER HONOUR: Good. Could I ask you this question: you cannot possibly, can you, given the limited nature of your interest, seek to have the whole proceedings removed?
MR YOUNG: We do not seek to do that, your Honour.
HER HONOUR: What do you seek to have removed?
MR YOUNG: We seek to have the common law claims against us and their jurisdictional foundation removed.
HER HONOUR: Very well, yes, I understand that. Was there anything else you wished to say?
MR YOUNG: No, your Honour.
HER HONOUR: Perhaps it would be convenient to hear you, Mr Gotterson, in relation to your application, would it?
MR GOTTERSON: If your Honour pleases, to take the last - - -
HER HONOUR: I should indicate before you commence that communication has been received from Phillips Fox in relation to the Patrick Stevedores Nos 1, 2 and 3 and National Stevedoring Tasmania in your matter No B7, indicating that they do not intend to appear and they will abide the terms of any order of the Court. So that solves - - -
MR GOTTERSON: Thank you, your Honour. I should mention that the Patrick companies for which I appear are not the ones which are described in the pleading as the Patrick employers and therefore no Workplace Relations Act relief is sought in relation to them. To take up the last point, your Honour, it is sought only to have removed the common law claims which are made against the applicants - - -
HER HONOUR: Are they both conspiracy claims?
MR GOTTERSON: Yes.
HER HONOUR: And the induced breach of contract claim?
MR GOTTERSON: Yes, your Honour, but not beyond - - -
HER HONOUR: Your companies have never employed any of the plaintiffs who are sought to be represented by Mr Bell's second, third and fourth clients?
MR GOTTERSON: No, none of the applicants for which I act, your Honour; therefore, the issues are the same and I would adopt the submissions of Mr Young in regard to all of that.
HER HONOUR: Do you have anything additional to say about the claim for conspiracy to which the Commonwealth is a party?
MR GOTTERSON: No, I cannot make any submissions in addition to that, your Honour, or the ones he made.
HER HONOUR: You cannot help me in seeing how any question arises under the Constitution in relation to that?
MR GOTTERSON: No, I am afraid not.
MR YOUNG: With your Honour's leave, it might be convenient if I make one or two remarks about the Kennedy Case, your Honour, before Mr Bell.
HER HONOUR: Yes, thank you.
MR YOUNG: My learned junior has obtained it. In our submission, your Honour, it does not make the point that our submission about there being no claims against the defendant is in any way incorrect. The relevant passage is at page 742 and the top of page 743 of 52 ALR 735, if your Honour has the same print.
HER HONOUR: Yes.
MR YOUNG: His Honour mentions Fencott v Muller, illustrating:
how different claims may be made against different parties and yet constitute a single controversy -
and it does, your Honour, provided they arise out of the same common substratum of fact. If they do not, it is of absolutely no assistance that there is a claim made against another party. The same common substratum of fact, in our submission, does not arise where you have allegations that certain other parties engaged in unlawful conduct - and there is no such allegation against our client, if your Honour pleases.
HER HONOUR: Yes, I follow that, thank you. Dr Griffith, perhaps you could speak to your motion.
MR GRIFFITH: Yes, your Honour. I indicated to your Honour that the Attorney would desire to remove the constitutional points identified.
HER HONOUR: That is not his motion. Your motion is quite distinct.
MR GRIFFITH: It is a separate motion, yes, your Honour.
HER HONOUR: Yes. Can you tell me what points the Commonwealth - the Commonwealth, I take it, does not contend that there is any invalidity in relation to the cross-vesting?
MR GRIFFITH: Certainly not on this application, your Honour.
HER HONOUR: No. So, on the view that the Commonwealth takes, the Commonwealth has not taken any point which would give rise to an absence of jurisdiction?
MR GRIFFITH: Your Honour, I do not appear for the Commonwealth.
HER HONOUR: No, you appear for the Attorney.
MR GRIFFITH: Yes.
HER HONOUR: I am sorry. How does the Attorney say a question arises other than by the cross-vesting legislation?
MR GRIFFITH: Your Honour, the Attorney's notice of motion is based on discerning that a question arises not on discerning what the Attorney's attitude is to the correct answer to that question.
HER HONOUR: Yes. The only question you want to litigate is the accrued jurisdiction, is that right?
MR GRIFFITH: Your Honour, it is not a question of what we want to litigate in that, if I may say so, that conflates two issues. One is: does a question arise? Secondly, what would be the views of the Attorney if he appeared, your Honour?
HER HONOUR: You had better tell me, because there is a very grave flavour of the Attorney's participation in this being not necessarily for the purposes of ventilating a constitutional issue because - let me explain that. If either the cross-vesting legislation is valid - and Gould v Brown indicates that it is - or there is accrued jurisdiction because there is one controversy, or the various claims arise out of the one substratum of fact, either one, there is no question. They either both arise or none arises.
MR GRIFFITH: Your Honour, could I make some points in answer to that. I say, firstly, your Honour, if an order is made on the Attorney's motion, the Attorney will not thereafter be able to appear.
HER HONOUR: If there is a constitutional question, he can appear.
MR GRIFFITH: Because the Commonwealth is already a party, your Honour.
HER HONOUR: But the Attorney has appeared.
MR GRIFFITH: Not when the Commonwealth is already a party, as I understand it, your Honour. The statutory right to appear is limited when the Commonwealth is not otherwise a party.
HER HONOUR: Is that under 78B?
MR GRIFFITH: Yes, that is my understanding, your Honour. I could check the wording.
HER HONOUR: We will check that because, if the Attorney is - in that case I am having some greater difficulty in discerning the Attorney's role in this. I do not see anything in it and I have a feeling that quite recently you appeared in a matter for the Attorney and there was a separate appearance for the Commonwealth.
MR GRIFFITH: Your Honour, I was trying to remember such an occasion.
HER HONOUR: Was it Newcrest?
MR GRIFFITH: I hope your Honour's memory is not better than mine on this aspect. Did I appear in Newcrest, your Honour?
HER HONOUR: Well, your memory may need reinforcement.
MR GRIFFITH: I do not like acquisition cases any more. I do not think I did but perhaps I could stand corrected.
HER HONOUR: Well, let me understand precisely the Attorney's interest in these questions.
MR GRIFFITH: We will start at the beginning, your Honour. The Attorney has not himself identified the issues which the Attorney desires to be ventilated. Your Honour, what he says is he responded to the issue - - -
HER HONOUR: He says, "I've got a right to have this removed, but I have no interest in identifying anything I want to argue". The purpose of section 41 has been said on many occasions to enable the identification of important and urgent constitutional issues and to enable their speedy determination.
MR GRIFFITH: Your Honour, there are two, with respect.
HER HONOUR: Yes.
MR GRIFFITH: Now, logically, your Honour, in order, the cross-vesting issue is the first because this - - -
HER HONOUR: Well, if I am told that the Commonwealth wishes to challenge the validity of the cross-vesting legislation, I may take one course. If I am told that it does not, I may take another.
MR GRIFFITH: Well, with respect, your Honour, the issue is not the view of the Commonwealth. The question is whether there is an issue - - -
HER HONOUR: Well, let me find out what the Attorney wants to argue. The Attorney comes here, apparently separate and distinct from the Commonwealth, the Commonwealth not having made any application for removal - - -
MR GRIFFITH: That is the application of the Attorney, your Honour, because - - -
HER HONOUR: That is right. You apparently assert a distinct jurisprudential interest.
MR GRIFFITH: Yes, your Honour.
HER HONOUR: Well, I would like to know whether the Attorney contends, or will contend at any time, that the cross-vesting legislation is invalid.
MR GRIFFITH: Your Honour, I have no instructions as to that.
HER HONOUR: Very well.
MR GRIFFITH: My instructions are, your Honour, the Attorney contends that the issue, notwithstanding the Gould v Brown decision where the Court was evenly divided, is one ripe for renewed attention, one would expect, of seven Justices of this Court.
HER HONOUR: Very well.
MR GRIFFITH: Your Honour, one aspect of that, if I may enlarge on it, is that there is a perception, after the Gould v Brown decision, that matters are not being, particularly under the Corporation Act, your Honour, pursued in what I might term the other court because of uncertainty as to the position notwithstanding the Gould v Brown decision. That is one matter, your Honour, that concerns the Attorney, to resolve the matters in a way whereby there is not a perception that the result is in effect a default result.
HER HONOUR: Do you say that question would arise in relation to the conspiracy counts?
MR GRIFFITH: Your Honour, our submission is that the arcane learning, if I may put it, on accrued jurisdiction went in abeyance in 1987 because cross-vesting rendered thereafter all such issues otiose and unnecessary because, with the limited exception of the cross-vesting scheme, no action would fail in any Supreme Court in Australia for reasons of want of jurisdiction.
HER HONOUR: Let us assume for the moment the invalidity of the cross-vesting legislation.
MR GRIFFITH: Yes, your Honour.
HER HONOUR: Although you do not tell me what the Attorney's attitude is on that - - -
MR GRIFFITH: Well - - -
HER HONOUR: It does not matter; I understand. I understand. But let us assume it is invalid. What do you say is the constitutional question that arises in relation to the conspiracy counts?
MR GRIFFITH: Yes. Well, I hope, your Honour, when you postulate that question, one has identified the first constitutional question as an undoubted one, your Honour, whether or not the cross-vesting laws are valid.
HER HONOUR: Yes, but - - -
MR GRIFFITH: Your Honour, the second issue which arises is the question of what might be called the accrued jurisdiction issue.
HER HONOUR: Yes. That seems to me to be the one in which the Commonwealth is interested.
MR GRIFFITH: Well, yes, your Honour.
HER HONOUR: From your notice of motion - or in which the Attorney is interested.
MR GRIFFITH: Yes. Now, your Honour, that is very interesting, because here, your Honour, there are original issues in this matter.
HER HONOUR: But what do you say about the conspiracy counts?
MR GRIFFITH: Your Honour, so far as the conspiracy counts - or looking at all the Commonwealth counts, if I could deal with them together, including those made in respect of the claims against the Commonwealth and a Minister, we would submit that one cannot say that those matters fall within their accrued jurisdiction.
HER HONOUR: That is not the question. It does not seem to be - as I said, you have to identify a constitutional question.
MR GRIFFITH: I elevate it to "matter", your Honour.
HER HONOUR: Yes, but the Commonwealth is a party to the proceedings, is it not? In fact, the difficulty I am having is this: if I look at 75(iii):
In all matters.....In which the Commonwealth.....is a party - - -
MR GRIFFITH: With respect, your Honour, that merely makes the Commonwealth amenable to suit in the High Court.
HER HONOUR: Yes. Then section 32 - - -
MR GRIFFITH: Well, your Honour said that is not the constitutional point.
HER HONOUR: No, I know, but section 32 - well, I am just finding out what the constitutional point is. Your point has to be that the Federal Court could not have jurisdiction with respect to these matters; not that it "does not" but "could not".
MR GRIFFITH: Your Honour, could I take for the moment the Commonwealth and the Minister out of my submission?
HER HONOUR: No, because they are parties to the proceedings. If you want to take them out of your submissions, confine yourself to induced breach of contract.
MR GRIFFITH: Your Honour, if I could do it in two steps. Were they not parties, your Honour, in our submission, this would be a reasonably plain case; that there would not be a matter, that there could not be accrued jurisdiction and, therefore, that it was not a matter, your Honour, and a constitutional issue arose. Now, the question then would be: does that position erode to the point of disappearing because of the fact that the Commonwealth and the minister is a party? Now, your Honour, dealing with the question of - - -
HER HONOUR: It is not a question of does it erode to the point of disappearance. It is: given that the Commonwealth and the Minister are parties, is there any constitutional question relating to the conspiracy causes of action?
MR GRIFFITH: With respect, your Honour, there is in respect to the other parties.
HER HONOUR: Why? Do you say that 75(iii) relates only to the Commonwealth, that the Commonwealth being a party, there is federal jurisdiction in respect of the Commonwealth and non-federal jurisdiction in respect of its co-defendants? I think that is turning constitutional doctrine on its head.
MR GRIFFITH: With respect, your Honour, what we are now debating is what section 75 means.
HER HONOUR: Well, I want to know what the constitutional question is for those causes of action.
MR GRIFFITH: Your Honour, dealing with the constitutional question, the fact that 75(iii) says the Commonwealth may be a party does not provide the source of the cause of action. So, for example, in Mewett, your Honour, various of your Honours' judgments discuss whether or not the source is section 56, section 64, or some other source, one would suppose deriving from laws made pursuant to section 78 of the Constitution. So, with respect, your Honour, the constitutional scheme does not provide merely because the Commonwealth is - - -
HER HONOUR: No, but you will not tell me what the question is.
MR GRIFFITH: Your Honour, the question is whether one has a matter for the purposes of section 75 or section 77 or in combination of operation, your Honour, merely by reason of the fact that the Commonwealth is joined as one of the parties with some 23 other respondents.
HER HONOUR: That is a proposition that is seriously advanced?
MR GRIFFITH: Well, your Honour, that is a question to be determined.
HER HONOUR: It is a proposition that is seriously advanced?
MR GRIFFITH: As a question to be determined.
HER HONOUR: Dr Griffith, do you seriously contend that a proceeding alleging a cause of action against the Commonwealth and other co-defendants is not a matter for the purposes of sections 75 or 76 of the Constitution?
MR GRIFFITH: Your Honour, with respect, the constitutional issue, as Fencott v Muller shows - whether or not, in the particular circumstances, as alleged, the joinder of those parties, where there is separate claims - - -
HER HONOUR: Well, you say it comes back to a common substratum of fact. Tell me then what section 32 does?
MR GRIFFITH: Well, your Honour, there are two issues. One is, I think - I understand my learned friend was putting, your Honour - then he was brought up short by reference, for example, to Kennedy, the issue - well, if you have a common substratum of facts where you have federal and non-federal claims against the one respondent. But, your Honour, when one looks at authority in this Court, one cannot say that the constitutional position in the issue where there is a federal claim against one party properly before the Court - and we could include the Commonwealth in that postulation, your Honour - and a non-federal claim - federal jurisdiction - a claim against other parties, whether one merely applies the same Fencott v Muller approach. Now, it might be, your Honour, that Justice Beaumont in Kennedy gives some support for that, but that is not the authority of this Court.
HER HONOUR: Do you say that the Constitution would not permit conferral on the Federal Court of jurisdiction with respect to matters in which the Commonwealth is sued, along with other defendants, for conspiracy?
MR GRIFFITH: Well, your Honour, such a law would be valid.
HER HONOUR: Yes. Now, the only question then is, surely, whether that cause of action is associated with matters - it does not have to be part of the same matter - in which the jurisdiction of the Federal Court is invoked. That is section 32. Now, you may well have a question which could be agitated on prohibition as to whether it could be said to be an associated matter.
MR GRIFFITH: Or on appeal, your Honour, also.
HER HONOUR: Yes. But I am trying to understand - I mean, if you said to me - if you were to seriously advance - and I might, of course, find difficulties in containing my mirth - but if you were to seriously advance that a proceeding alleging a cause of action in conspiracy against the Commonwealth and other co-defendants is not capable of being treated as a matter in respect of which jurisdiction could be conferred on the Federal Court, then I can see a constitutional question. I cannot see that it is a genuine one, but I could see one.
MR GRIFFITH: Well, your Honour says "could be". What would seem to be the case here, your Honour, that whatever could be done under section 75(iii) has not been done.
HER HONOUR: Well, that is not a constitutional - have you got section 32 before you?
MR GRIFFITH: Of the Federal Court Act?
HER HONOUR: Yes.
MR GRIFFITH: Yes, your Honour, I think I almost know it off by heart, but I have my book open.
HER HONOUR: You do not say that, looked at separately, the actions in conspiracy are not matters in which the Constitution would permit jurisdiction to be conferred on the Federal Court.
MR GRIFFITH: What we say is, your Honour, that the provisions of neither the Judiciary Act nor the Federal Court Act have that effect of conferring - - -
HER HONOUR: I am not concerned about the provisions of the Act; that is a prohibition question, Dr Griffith.
MR GRIFFITH: Yes. Well, your Honour, without the provisions of the Act, we say the Constitution does not do the conferring.
HER HONOUR: No, but I asked you whether there is any question in relation to the conspiracy counts other than whether they are associated with matters in which the jurisdiction of the Federal Court is invoked. I mean, there may be an argument as to whether they are associated, but is there any other question?
MR GRIFFITH: Well, your Honour, we say that is a constitutional issue.
HER HONOUR: Well, it is not.
MR GRIFFITH: Fencott v Muller would seem to have established that, your Honour.
HER HONOUR: Well, "associated" would seem to mean - we are not talking about the one matter for the purposes of section 32, are we?
MR GRIFFITH: Well, your Honour, Philip Morris would seem to indicate that the question of the ambit of section 32 is a constitutional question. Can I give your Honour page citations for that?
HER HONOUR: Yes. For the interpretation of section 32?
MR GRIFFITH: Yes, your Honour. This is 148 CLR 457, and your Honour, the indications that the question - - -
HER HONOUR: Could you read it out, because counsel did not do us the courtesy of giving us lists of references.
MR GRIFFITH: I am sorry, we did not know we were going to get to this. I apologise, your Honour.
HER HONOUR: You mean you came here without having identified the questions?
MR GRIFFITH: No, I came where with two copies of the judgment, one for your Honour and one for me, with page references but, if the issue had not arisen, I would not have bothered your Honour with it - not because it is against me, but because - - -
HER HONOUR: Well, I am having great difficulty finding the question that arises which, in relation to the conspiracy counts, it activates.
MR GRIFFITH: Well, can I give you a page citation, your Honour, which we say goes for the proposition that, at least in Philip Morris v Brown, members of this Court took the view that the question of the ambit of section 32 did arise - the constitutional question.
HER HONOUR: Yes. Well, of course, there will always be a question as to what the Constitution permits.
MR GRIFFITH: Your Honour, we say it is a constitutional question.
HER HONOUR: But I am asking - - -
MR GRIFFITH: Your Honour, can I give you the page references, and I am sorry that I did not present them earlier, but it is a question of what does turn up to concern your Honour and we thought that this was an issue which was clear, and obviously it is not as clear as we thought. Your Honour, pages 478 and 479 of the Chief Justice, pages 488 and 495, Justice Gibbs.
HER HONOUR: You do not raise a question as to the invalidity of section 32, do you?
MR GRIFFITH: No, your Honour.
HER HONOUR: No, I thought not.
MR GRIFFITH: Your Honour, I only go around those questions of invalidity.
HER HONOUR: I thought not, no.
MR GRIFFITH: It is the well known default position, your Honour, no Commonwealth law is invalid until the majority of this Court holds that it is.
HER HONOUR: Yes.
MR GRIFFITH: So that if the Court never decides anything, your Honour, nothing is invalid.
HER HONOUR: I mean, I could understand a clear constitutional question arising if it were asserted that section 32 is invalid.
MR GRIFFITH: Well, one, I would not do it, your Honour, but, two, how can it be if it only says to the extent the Constitution permits?
HER HONOUR: Yes, exactly.
MR GRIFFITH: If the Constitution permitted nothing, well, then, it would still be valid.
HER HONOUR: Of course, there could always be a question under section 32 as to the extent to which it permits.
MR GRIFFITH: Well, your Honour, this is a problem because, of course, inconsistency is a question under the Constitution, and yet we hope the Court is not unnecessarily burdened with inconsistency cases. But there is no doubt it is a question under the Constitution, your Honour, and it may be that it is only occasionally that the Court is brought to things such as inconsistency or section 32. But can I give your Honour further citations?
HER HONOUR: Yes.
MR GRIFFITH: Page 516, Justice Mason; page 520, Justice Murphy.
HER HONOUR: Sorry, 516. Could I just see what was said at 516?
MR GRIFFITH: Justice Mason.
HER HONOUR: What did his Honour say?
MR GRIFFITH: Well, your Honour, he starts at the top of the page, referring to section 32. In fact, your Honour, he does deal with the point of the validity of section 32.
HER HONOUR: Yes.
MR GRIFFITH: He says there is no case for that. We take his Honour's discussion as indicating that it is a constitutional issue. Indeed, your Honour, he says section 32 cannot be invalid because of the opening words in the limitation - the chapeau to it. So, I am glad I did not embark on that. But, your Honour, similar indications in Justice Murphy at page 520, Justice Aickin at 530, and Justice Wilson - - -
HER HONOUR: Well, let me just see what is said. What Justice Murphy said, and which is the way I would have read section 32:
This dependent or ancillary jurisdiction may embrace jurisdiction which could have been given directly under s 77 - - -
MR GRIFFITH: Yes, "could have", your Honour.
HER HONOUR: Yes. Well, you do not say it could not, do you?
MR GRIFFITH: We did not say it "could not", your Honour, we say it has not.
HER HONOUR: Well, that is a construction issue, surely. And is that not what Justice Mason also said in this case? I think Chief Justice Barwick linked it back to the one matter, did he not? But the others took a broader view.
MR GRIFFITH: They all did in a way, your Honour.
HER HONOUR: There is no use being short with me. I have to find questions and know what I am doing before I do anything in this matter.
MR GRIFFITH: Yes, of course, your Honour, and we are here to assist your Honour.
HER HONOUR: I misunderstood.
MR GRIFFITH: Your Honour, the Judge's joke is always the best one. Justice Aickin, your Honour, at page 530 - there is a similar approach, we say, in these citations, your Honour, indicating that the Court - each of their Honours were engaged in what they regarded as a constitutional task of considering the ambit of section 32. That is the point of these citations, your Honour. We say that it was not treated by - - -
HER HONOUR: Page 532, did you say, or 530?
MR GRIFFITH: Page 530.
HER HONOUR: Let me just read that.
MR GRIFFITH: Your Honour, that is the second full paragraph after the quotation and then further down the page. And then, your Honour, at the last paragraph he refers to section 32. I think probably Justice Wilson expresses what I am submitting to your Honour more directly at page 547, where his Honour expresses - - -
HER HONOUR: Yes, but they all seem to say if you can identify a matter falling within 75 and 76, then section 32 will operate to confer jurisdiction, did they not, subject to what Chief Justice Barwick says?
MR GRIFFITH: Yes. Well, your Honour, I mean, the question is the matter - we say the matter is not merely that the Commonwealth and the Commonwealth Minister is one of the respondents to it - a claim pleaded against many people, your Honour. That is not sufficient in itself to say therefore it satisfies the constitutional requirement that there be a matter for the purpose of the totality of the claim made against the many respondents to it. Your Honour, here one has a particular pleading which would seem, on its face, capable of operating more or less on the assumption that, if there were a demurrer to it, the Court is in a position to consider whether there is, in the circumstances, the requisite connection - - -
HER HONOUR: You are talking about all three causes of action?
MR GRIFFITH: Yes, your Honour. We can perhaps test it another way. The fact that there is an injunction claimed against the Minister as an officer of the Commonwealth, your Honour - - -
HER HONOUR: Could I ask you this, though. Assume against you, for the moment, that section 32 does confer jurisdiction - well, assume these matters - and I do not think you seriously contest the first - that an action against the Commonwealth and other defendants claiming damages for conspiracy to injure, or conspiracy to do an unlawful act, is a matter within section 75(iii) of the Constitution?
MR GRIFFITH: Well, your Honour, I would say "may" be a matter, your Honour, but there is a requirement that jurisdiction be conferred by a law of the Commonwealth.
HER HONOUR: No, I know that. All right. Well, now, let us assume against you that that is exactly what section 32 does. There may be an argument whether that is or is not the case, but assume against you that it does - and there are any number of statements in Philip Morris to suggest that that is, in fact, what it does.
MR GRIFFITH: Well, your Honour, with respect, Philip Morris is concerned with the issue where one has associated claims, federal and non-federal, against the same parties.
HER HONOUR: I am talking about two federal claims. It seems to me there may be a question which you could agitate by way of prohibition whether section 32 gives jurisdiction to aggregate a federal claim that is in some sensible way connected with another federal claim. If that is so, if those assumptions are made against you, is there any question arising under the Constitution or involving its interpretation with respect to the conspiracy claims?
MR GRIFFITH: When your Honour says "federal claim," do you mean a claim in federal jurisdiction?
HER HONOUR: A claim that falls within one or other of sections 75 or 76.
MR GRIFFITH: Your Honour, as to that question, in our submission, it is still necessary to satisfy, by reference to the particular circumstances, that with respect to parties other than the Commonwealth, there is pleaded issues with the requisite connection to be a part of the matter.
HER HONOUR: No, what I am putting to you is that if you look at section 32 a little more closely, you do not have to have one matter. You could have several matters, so long as they are associated and so long as each one of them brings about - is a matter which falls within 75 or 76.
MR GRIFFITH: Well, your Honour, we say there has to be a constitutional association, so that that is a constitutional issue, as it was - - -
HER HONOUR: Well, what do you mean by "a constitutional association"?
MR GRIFFITH: That it must have the requisite connection - be it substratum of facts, or however expressed, your Honour - to be regarded as a matter.
HER HONOUR: There may be a question whether that is what section 32 says.
MR GRIFFITH: Your Honour, with respect, it also brings in the meaning of section 75 because that is the source of the word "matter", so when one is considering what is a matter, inevitably one tracks straight back to section 75. That is indeed the whole doctrine of the Court - - -
HER HONOUR: Yes, but a cause of action against the - let us assume for the moment that the persons whom Mr Bell represents had brought an action in this Court against the respondents who are said to have conspired in the two relevant conspiracy counts - assume he had brought it in this Court - you would not say it was not a matter within 75(iii), would you?
MR GRIFFITH: Your Honour, you would have to consider the question of what is the cause of action.
HER HONOUR: Conspiracy.
MR GRIFFITH: The answer is a combination of sections 56 and 64, whatever is the correct combination would say yes, you can have a suit against the Commonwealth in tort in this Court.
HER HONOUR: The authorities indicate you can.
MR GRIFFITH: Yes, your Honour. But only because of the fact that those laws exist.
HER HONOUR: They exist. Section 64 is there; section 56 is there. Would you say that if that that claim were brought in this Court it would not be a federal matter?
MR GRIFFITH: It would be a federal matter, your Honour.
HER HONOUR: Yes, and it is a matter in respect of which the Constitution would permit jurisdiction to be conferred on the Federal Court - section 77(i).
MR GRIFFITH: Yes, your Honour.
HER HONOUR: Is then the only question that arises with respect to those causes of action the question whether jurisdiction has been conferred?
MR GRIFFITH: With respect, it would still seem to be constitutional issues which arise.
HER HONOUR: I think we have had this section 40 debate once before in a matter presided over by Chief Justice Mason, and I think you lost.
MR GRIFFITH: Me? Your Honour, I so rarely have section 40 applications I am sure I would remember it.
HER HONOUR: No; well, I certainly remember a case in which it was said that the question whether a provision conferring jurisdiction - in fact conferred jurisdiction in a particular case - was a question of construction.
MR GRIFFITH: Or was a question of application of the Constitution.
HER HONOUR: No, well, you keep saying that but I think we have gone around in circles.
MR GRIFFITH: I am not intending to, your Honour. The constitutional circles have gone round at any event. Your Honour, the question is then looking at the totality of the applications which have been made by the parties who are not applying to remove as a course, it does seem logical that, having asserted that they would wish to ventilate the constitutional issue of the validity of the cross-vesting laws, that logically that is the first inquiry rather than the second.
HER HONOUR: I understand, but lest you be in any doubt as to why I am asking you these questions, it is because of the next issue that I must come to in these matters which is directed, I would have thought, by section 42.
MR GRIFFITH: Section 40(ii).
HER HONOUR: No.
MR GRIFFITH: The remitter, I am sorry, your Honour.
HER HONOUR: Yes. You see, it would be a valorous attempt - although I notice it is made by the Attorney, but I would have thought heroic in the extreme - to suggest that this Court should entertain the entire cause before the Federal Court; make findings of facts on all the matters that are clearly within jurisdiction. Now, that would be valorous in the extreme.
MR GRIFFITH: Your Honour, the Attorney might be heroic but his counsel today is not.
HER HONOUR: That is right. So, at any moment, because you have a right to have something removed, the very next question is how much of it goes back. That is why I am asking you these questions, because let there be no doubt on the part of anybody at the Bar table that there is no way that there is not a very substantial part of these proceedings going right back if any part of them is removed, if there is any removal.
MR GRIFFITH: Your Honour, the operable part might be if there is any part of them to be removed because, although section 40 particularly, in the case of an application by the Attorney is concerned, is expressed by reference to removal of the whole of the matter - - -
HER HONOUR: Yes, you did ask for the whole of the matter to be removed.
MR GRIFFITH: That is the form of motion reflecting the section.
HER HONOUR: Yes; and I was wondering if it is not in jurisdiction in the Federal Court if there is anything to remove. I mean, one could get into a lovely chicken-and-egg argument on that.
MR GRIFFITH: Can we leave that for another day? Section 40(ii) refers specifically in the case removal from State courts of part and not whole. That is not the wording of section 40(i), and hence the wording in the Attorney's motion. Your Honour, I would not contend that the Court has no choice but to remove the whole and then it is stuck with it, whatever it is. That is obviously not a course.
HER HONOUR: I am not too sure about that. You have asked for the whole of the action, the whole of the cause to be removed, I think.
MR GRIFFITH: That is because it is the words of the section, your Honour.
HER HONOUR: No, it is not.
MR GRIFFITH: My learned friend is saying something, but I think that phrase applies to - - -
HER HONOUR: Let us see what you did ask for.
MR GRIFFITH: We did apply for all of it, your Honour.
HER HONOUR: Yes, I thought so.
MR GRIFFITH: But that does not mean we are asking your Honour just to remove it - - -
HER HONOUR: I am not to take your documents at face value?
MR GRIFFITH: Your Honour can take my documents as reflecting the breadth of the provisions of the power under which the Attorney applies but, your Honour, may I make it quite clear that I have no cause to indicate that the Court should be burdened by anything other than the constitutional issues which are submitted as being identified. They would seem to be in a crisp form which could be referred to the Court by reference to questions referred by your Honour under Order 18 or by case stated or some other manner. They seem to be the two questions that are identified. Apart from that, the Attorney makes no submission to the Court that the Court should otherwise be burdened by this action were it to be removed into this Court for these issues to be determined. We would not suggest that your Honour should remove the whole matter and promptly remit those parts - - -
HER HONOUR: I have this difficulty, Dr Griffith, in relation to the accrued jurisdiction. Perhaps everybody should take note of this. So long as one is talking about accrued jurisdiction - that is, what is the one matter - one would have thought that that was a matter which the Federal Court had dealt with on a number of occasions before the Cross-Vesting Acts with which it was quite competent to deal, and one left to that court to determine. This Court would be creating a monster if it were to be the case that every time the question arose whether there was one inseverable matter, that question had to be determined as a preliminary issue by this Court. It would just have - well, you would have two-step litigation at every time.
MR GRIFFITH: Your Honour, there is no suggestion whatsoever any more than there would in respect of implied constitutional guarantees that the Court would have to in each case first express its view, although that would be a constitutional issue. So that suggestion is not made at all, your Honour. What is submitted is that in this case there are these two separate issues, whatever logical order one puts them in, which are constitutional issues. It is accepted as a course that the Court should be burdened by no more than what is appropriate to deal with those issues. So, your Honour, I would not suggest for a moment that the entire matter be removed and your Honour then remit back. It would be a lot simpler only to remove the issues.
HER HONOUR: It might have been helpful if those issues had been identified in the originating process, a practice which used to be adopted when I was an applicant for removals, let me say, and which I would have thought was not beyond the wit of the several counsel assembled at the Bar table.
MR GRIFFITH: With respect, obviously there has been consecutive treatment of this, but the original application and the affidavit in support identified these two issues, I think almost in the same formulation of my learned friend, Mr Young, and it might have - - -
HER HONOUR: Yes, but it did not identify that they wished that part of the proceedings raising those issues to be removed.
MR GRIFFITH: It might be just an assumption that counsel should not make that there is a conformity of approach in commonsense between those before whom we appear and those who appear before them. So it is self-evident that one would not think the alternative. I think on 11 March the Chief Justice in the Ravenor matter reminded, if reminding was necessary, of the principle that this Court should not ordinarily be concerned with applications for interlocutory relief even in constitutional matters. That is accepted and understood. There is no attempt here to burden the Court other than to say - that is the submission I make on behalf of the Attorney - these two issues are identified and, for the reason stated, the Attorney would apply to remove them for consideration for those issues.
HER HONOUR: Perhaps I will ask counsel for the Commonwealth in a little while about it when you are finished.
MR GRIFFITH: Yes, your Honour, that is not me.
HER HONOUR: I was about to ask you a question which I will properly address to you.
MR GRIFFITH: I was going to make an observation which would seem at the moment not to be resolved by authority of the Court, and that is where one claims an injunction against an officer of the Commonwealth, for example, a Minister as is claimed here, it would be our submission that the fact of that claim does not enable any cause of action one might like that leads to a claim for relief against the Minister to be attached to a claim for an injunction so that the mere claim itself gave constitutional jurisdiction. Your Honour, that would seem to be an issue which arises here, that there is a claim against the Minister for an injunction.
Our submission would be that, although one may obtain that relief, that does not in itself confer the jurisdiction to plead common law causes of action or the like. There still, in our submission, has to be a law of the Commonwealth - this is apart from the cross-vesting issue, your Honour - vesting jurisdiction in the Court. That would seem, also, to be an issue included, if I may put it, in the accrued jurisdiction issues. I hope I have expressed with sufficient clarity the Attorney's submission that it is intended by this application merely to remove the two issues that are identified, and not to go beyond that. If your Honour pleases.
HER HONOUR: Thank you. Ms Harris, you support the application of the Attorney, I trust?
MS HARRIS: I do, your Honour, on the basis that the Attorney puts it, and no higher; simply that there is a constitutional question which arises.
HER HONOUR: Can I now ask you what is the position of the Commonwealth in relation to those issues? Does the Commonwealth assert that the cross-vesting legislation is invalid?
MS HARRIS: Your Honour, I do not have instructions on - - -
HER HONOUR: No, that is not good enough, Ms Harris. Either a question has arisen or has not arisen. The matter has been called on at short notice at the request of counsel, each seeking the abridgment of time, the Attorney seeking the abridgment of time. Clearly there is a question, given the Attorney's right to have a matter removed, as to how much should be removed. That is a matter that must be determined. It is not good enough for you to stand up here and say you have not got instructions. In the proceedings, what is the Commonwealth's position with respect to the cross-vesting legislation?
MS HARRIS: Could I put two things to your Honour. First, although I understand that the cross-vesting legislation has been discussed before your Honour, there is in fact nothing in the pleading to indicate - - -
HER HONOUR: No, there is no pleading. It is arguable that no question has arisen because there is no pleading and no point has been taken in the Federal Court. Could I please have an answer to the question. Does the Commonwealth assert in these proceedings that the Cross-Vesting Acts are invalid?
MS HARRIS: The Commonwealth does not assert that the legislation is invalid, your Honour.
HER HONOUR: So the Commonwealth accepts that the Federal Court has jurisdiction in these matters, either under a cross-vesting or accrued jurisdiction, does not matter which?
MS HARRIS: Leaving aside, perhaps, the question of Order 10A of the Federal Court rules which requires a party which relies on a cross-vesting legislation to invoke that jurisdiction by stating that in its pleading which the applicants - - -
HER HONOUR: That is a pleading point that can be cured in two minutes and need not trouble this Court. Does the Commonwealth accept that the Federal Court has jurisdiction in the proceedings or does it challenge the jurisdiction of it? This is a matter of utmost importance to me to determine the course that should be taken in relation to the Attorney's application. I may say before you answer it, I am very annoyed to think that the Commonwealth would have come to this Court to support an application not being in a position to say what position it takes with respect to the jurisdiction of the Federal Court.
MS HARRIS: With respect, your Honour, the Commonwealth does not come to support any application; it is the respondent on all of the applications. I support - - -
HER HONOUR: So you do not support the removal applications?
MS HARRIS: I support what Dr Griffith has said - - -
HER HONOUR: You support his application or you oppose it?
MS HARRIS: Your Honour, I accept what Dr Griffith has said in relation to the question of whether there is an issue arising in relation to the constitutionality of the cross-vesting legislation. The Commonwealth would put it no higher than that.
HER HONOUR: But there would only be a question, as Justice North has put it, there really is only a question if he succeeds on both.
MS HARRIS: Indeed, your Honour, and to that extent - - -
HER HONOUR: Is it the Commonwealth's position - and this is directly relevant to what will be removed or what order will be made in respect of remittal - does the Commonwealth assert that the Federal Court lacks jurisdiction with respect to these matters or that it has jurisdiction?
MS HARRIS: With respect, your Honour, the question does not necessarily arise on a section 40 application - - -
HER HONOUR: No, but it does arise as to what part is removed and as to what, if anything, is remitted. Now, I ask you again.
MS HARRIS: In relation to what should be removed - - -
HER HONOUR: I am not asking you what you say should be removed; I am asking you whether the Commonwealth accepts that the Federal Court has jurisdiction to hear the matter that is presently before it, whether under the cross-vesting legislation section 32 or accrued jurisdiction. That is to say, does the Commonwealth assert that on no basis has the Federal Court jurisdiction to entertain the conspiracy claims and the induced breach of contract claim?
MS HARRIS: I cannot say that the Commonwealth would assert that, because there is - - -
HER HONOUR: Very well, I understand the position. We will not pursue it. Could you tell me then whether, in the proceedings before Justice North, any point has directly been taken by any of the parties asserting the want of jurisdiction in respect of these matters?
MS HARRIS: Not outside the boundaries of the present applications.
HER HONOUR: And nobody has asked Justice North to himself determine whether he has jurisdiction in respect of any one or more of those three courses of action.
MS HARRIS: That is so, your Honour.
HER HONOUR: Thank you. If you wish to say anything in support of the applications, now please do so. If you wish to say anything in opposition, please do so.
MS HARRIS: Your Honour, I do not propose to say anything for or against. Perhaps just to clarify my response on the cross-vesting legislation, it is not the Commonwealth's position that the legislation is invalid.
HER HONOUR: I know, but the attitude taken by the Commonwealth will determine very much the course of the proceedings.
MS HARRIS: To that extent, I have to say to your Honour that the Commonwealth regards its laws as being valid until it is held by a court to be otherwise.
HER HONOUR: Well, which court? Other courts could hold them invalid.
MS HARRIS: This Court is the critical court from that point of view, and that as we perceive it is - - -
HER HONOUR: The question that arises is not necessarily, not exclusively, whether the laws are valid. To the point that you assert that the cross-vesting is, then you must accept that there is no question of jurisdiction in the Federal Court.
MS HARRIS: Your Honour, that is not the Commonwealth's assertion either way. The Commonwealth is responding to matters which are raised in the applications by the other parties.
HER HONOUR: I know what the Commonwealth is doing.
MS HARRIS: There are questions in those applications raised as to the validity of the cross-vesting legislation.
HER HONOUR: Not raised directly, and Justice North not having been invited to rule upon any of them. The validity of the cross-vesting legislation, Ms Harris, would not arise if Justice North ruled that they were one inseverable matter - correctly ruled that they were one inseverable matter.
MS HARRIS: I accept that, that the primary question is one of accrued jurisdiction.
HER HONOUR: The constitutional questions in this case might be well down the track.
MS HARRIS: That is only the case, of course, if the question of accrued jurisdiction does not, itself, involve a constitutional question. The Commonwealth accepts that that lies at the heart of the matter, that there is no clear answer as to the question whether there could be said to be accrued jurisdiction in this case in the Federal Court, and that that is a constitutional question, given that the Federal Court's jurisdiction - - -
HER HONOUR: It is also one about which there is no great doubt as to the principles to be applied, in fact there is no doubt as to the principles to be applied, is there?
MS HARRIS: In my submission, your Honour, the law is not necessarily clear in the situation that is presently before the Court. Certainly there are a number of questions arise - - -
HER HONOUR: I thought the Attorney wished to contend that it was. But, anyway, it is sufficiently clear to be able to be determined on the pleadings.
MS HARRIS: Perhaps I have not made myself clear. I do not put to your Honour that there is not a question that can be determined in relation to whether a constitutional question arises on the pleadings. In my submission, it does, that the question as to whether there is an issue arising out of the Constitution or involving its interpretation does rely on the pleadings, and it could be dealt with as on a demurrer, as it were. What I am putting to your Honour is that there is no clear law that would dictate the answer to the question of jurisdiction in this case. The answer to the question of jurisdiction in this case is necessarily a constitutional question, depending, as it does, on sections 75 and 76 of the Constitution. Section 32, as the Philip Morris Case demonstrates, cannot confer on the Federal Court a jurisdiction which exceeds constitutional bounds. To that extent it is accepted by the Commonwealth that whatever the right answer to that question might be, it is a question which is of importance. There is nothing further I need to put to your Honour.
HER HONOUR: Thank you. Does anybody else at the Bar table support the motions?
MR MURDOCH: Yes, your Honour, on behalf of my clients, I support the motions.
HER HONOUR: Has any jurisdictional point been taken by your clients?
MR MURDOCH: I understand not, your Honour.
HER HONOUR: Your clients accept the jurisdiction of the Federal Court in respect of all matters against it?
MR MURDOCH: Your Honour, I do not have instructions on that point.
HER HONOUR: That is wonderful. I would have thought that at this stage of the proceedings the protagonists might at least know what position they take in relation to the jurisdiction of the Federal Court.
MR MURDOCH: That is the position I am in, your Honour.
HER HONOUR: Yes, well, I have a feeling I am being trifled with, but there you go.
MR MURDOCH: That is our position, your Honour.
HER HONOUR: Yes, thank you. Did you wish to support the application?
MR POMERENKE: My client's position is simply to abide by the order of the Court.
HER HONOUR: Yes. Tell me, you accept the jurisdiction of the Federal Court in relation to the matters pleaded against you?
MR POMERENKE: Once again, I do not have instructions on that matter.
HER HONOUR: Very well. Mr Bell. You cannot oppose the Attorney's motion, can you?
MR BELL: Unless a question does not arise, and it does not, your Honour.
HER HONOUR: Very well. I will hear you on that.
MR BELL: The action against the NFF respondents and the Commonwealth respondents is clearly within the jurisdiction of the Federal Court, and it is clearly so.
HER HONOUR: Could you deal with it separately as the conspiracy of the induced beach of contract.
MR BELL: Perhaps if I deal with the Commonwealth first, it might be helpful.
HER HONOUR: Yes.
MR BELL: The conspiracy claim against the Commonwealth is within the jurisdiction of the Federal Court under section 32 of the Federal Court Act, or it is within the accrued jurisdiction of the Court in accordance with the principles enunciated in Fencott v Muller. So far as section 32 is concerned - - -
HER HONOUR: I take it the conspiracy - am I correct in this: at least one of the conspiracies alleged is for the breach of federal laws?
MR BELL: Not exactly, your Honour.
HER HONOUR: Does it allege the breach of the federal - - -
MR BELL: It alleges the breach of five federal laws.
HER HONOUR: Alleges a conspiracy - - -
MR BELL: Alleges a conspiracy that is an agreement between persons, including the Commonwealth, that those laws be breached. It alleges that a state of single mind was reached between individuals, including the Commonwealth as an entity, to that effect. As it happens, the federal laws relied upon do not bind the Commonwealth as an entity. The laws bind other entities - Patricks and other companies - but the allegation is that the Commonwealth conspired with those companies to breach those laws.
HER HONOUR: And they are the laws, the breach of which is asserted in other causes of action, againt other respondents?
MR BELL: That is right, your Honour. They are the self same breaches.
HER HONOUR: So you say - - -
MR BELL: Nothing could be more common by way of the substratum. That is what we say, your Honour. In accordance with the principles clearly enunciated in Fencott - not an old case, your Honour.
HER HONOUR: I am sorry?
MR BELL: Not an old case, your Honour. A recent case of this Court, and repeated in Stack and in Smith, in accordance with the principles enunciated in those cases, this is clearly a case within the accrued jurisdiction of the Federal Court. There being jurisdiction, no question arises. That is the second way we put it.
HER HONOUR: I think what you are really saying is the question will undoubtedly be answered against Mr Young in relation to those matters. But you have to go further and say there is no question - - -
MR BELL: I do have to go further than that, your Honour, but the parties have not sought to reventilate Fencott. If they stood before you and said, "We want to reventilate Fencott", and seek leave to do it, what is more, that might be one thing. But they stood before your Honour and said, "We rely upon Fencott". If the principles are stated, that is if the answer to the constitutional question has been given, what is the question? That provides the answer to your Honour's concern about creating a Frankenstein, because it is utterly true that if my learned friend's are right, in each occasion in which the accrued jurisdiction is relied upon, there is a section 40 constitutional question. The answer, your Honour, is that where the question has been answered by the Court and principles have been stated, then there is no constitutional question. That is the answer we provide shortly to the Commonwealth's application. No question does arise.
So far as the NFF respondents are concerned - - -
HER HONOUR: You are moving then to the induced breach of contract?
MR BELL: Yes, I am, your Honour. Of course, in respect of the NFF respondents so far as conspiracy is concerned, there is no question because the matter is in accordance with stated principles within the accrued jurisdiction, and I will provide your Honour with some cases establishing some in a moment.
So far as the inducement claim is concerned, your Honour, our submission is the same. The factual matters alleged to constitute the inducements are bound up inextricably with the whole sequence of events beginning in September 1997 and running up to 7 April this year when the company rearrangements were implemented. On the pleadings it is clear that the events are inextricably linked and in accordance with stated principle are within the Court's jurisdiction. Therefore no question arises there either. In any event, so far as the inducement claims are concerned, that is not as of right application and there is - - -
HER HONOUR: I think it is bound up in the Attorney's application. I read his application as involving it.
MR BELL: All right. Well, if it is, your Honour, then I rely upon my first submission that no question arises for the reasons that I have given. Now, your Honour, it was asserted before you that Fencott does not establish that a non-federal claim can be made against a non-federal party. It does no such thing, your Honour. It has been asserted - it has been understood in the Federal Court that the principles enunciated in Fencott allow such a claim to be determined by the Federal Court provided that it satisfies this common substratum test enunciated in Fencott and the cases, your Honour, are in the folder I give to you.
The first is Kennedy, your Honour, with which you are familiar. The second is a decision of Justice Gummow in Mercantile Mutual Life Insurance v Australian Securities Commission (1993) 40 FCR 409. His Honour at page 430 at about point 8 on the page affirms Kennedy to the effect I have just stated:
The new trustees are not officers of the Commonwealth, but this Court being seized of the matter under s 39B.....this carries with it jurisdiction to grant remedies against other parties to the controversy which comprised that matter.
And Kennedy affirmed, following Drake-Brockman which I have also provided to your Honour.
The next case is McMahon (1986) 69 ALR 527, a decision of Justice Burchett where, at 531 to 532 there is a discussion of this very point. At 532 his Honour refers to Kennedy and affirms it. That is the state of the authorities in the Federal Court, your Honour. There are other cases to the same effect. There is one principle, it is the one stated in Fencott. It reaches non-federal claims against non-federal parties where the claims are necessarily bound up with, i.e. a part of the common substratum of facts of the federal claim. That is the character of the claim made against the NFF respondents by way of inducement to breach of contract and it is in the alternative submission, so far as the Commonwealth is concerned, a claim of that clime as regards it also.
Your Honour, I need to inform you as to the state of affairs. As I speak there is underway an interlocutory application between Justice North in which an injunction is being sought by the clients I represent today. That application has been proceeding for some two and a half days to today. My latest instructions are that the application will not be completed this afternoon and that his Honour is intending to sit tomorrow in order to hear the matter to conclusion. Obviously an interlocutory matter of that length, your Honour, involve complex matters of a great significance and it is my submission that whatever your Honour does today by way of removal, if anything, that nothing should be done to interfere with that interlocutory application. Lastly, your Honour, we submit that - - -
HER HONOUR: Well, that does it not - I assume that arises out of matters or issues as to which jurisdiction is not in issue. Am I right in thinking that? You are seeking interlocutory relief against Mr Young's clients.
MR BELL: Yes, your Honour. We are seeking interlocutory relief principally against the Patrick respondents, but in a secondary way.
HER HONOUR: And also against Mr Young.
MR BELL: Yes, and against the NFF respondents and in a small respect, even against the Commonwealth respondents but - - -
HER HONOUR: I do not have a difficulty with the Commonwealth respondents, for the reasons I think that have emerged in argument.
MR BELL: Yes, I understand your Honour. I have in effect adopted those in my own submissions. But I do submit that nothing should be done. I am instructed, your Honour, that in fact we do not seek interlocutory relief against the Commonwealth at all, but we do seek final relief against the Commonwealth, your Honour, in the terms specified in the application. Your Honour, nothing should be done to interfere with that process, in our submission.
Finally, your Honour, there can be no justification for removing the whole case to this Court. That would be an impossible way to conduct litigation, to say the least. At the very least, specifically identified questions should be removed. They ought then to be remitted, in my submission. There is no reason why any of your questions specified today cannot be heard and determined by Justice North and then be dealt with in the usual way through the appeal process. If the Court pleases.
HER HONOUR: Anything else in opposition to the motions? No. Reply. Could you identify for me precisely what you think should be moved on your motion? MR YOUNG: It is the jurisdictional issues, your Honour, arising in relation to claims against my clients on both issues, yes. Could I deal with two matters, your Honour, by way of reply? Firstly, in relation to accrued jurisdiction, and the second matter is section 32. Can I separate them cleanly at first?
The cases to which my learned friend, Mr Bell, refers, your Honour, of McMahon, Kennedy, and Mercantile Mutual are all cases in which there is an anchoring federal claim arising under jurisdiction invested by an enacted federal statute. Can I hand your Honour Stack and I have marked a passage with that yellow flag. It is our submission that the principle about accrued jurisdiction, that all of these cases deal with, is that mentioned in Stack at page 292 in the passage I have flagged. They are summing up Philip Morris and the state of the authorities in the joint judgment of Justices Mason, Brennan and Deane. What the Court says is:
Common to each of the majority judgments was the view that a Commonwealth law conferring jurisdiction on a federal court under s. 77(i) of the Constitution with respect to proceedings under a federal statute.....carries with it authority to determine non-federal aspects of the controversy between the parties of which the federal element forms a significant part.
Now that is the principle enshrined in all of these cases, and we urge that it applies, and we accept the common substratum of fact tests. But to attract that principle you need federal jurisdiction attracted in the first place, jurisdiction that has been conferred - not jurisdiction that might have been conferred.
HER HONOUR: Can I interrupt you. If it turned out, and again I do not wish to indicate it is, but if it turned out - and I ask you this because you have not addressed it and it may be necessary. If it turned out that the operation of section 32 in conjunction with section 75(iii) was to give jurisdiction with respect to the conspiracy claims - - -
MR YOUNG: Yes, well that is the section that I want to deal with, your Honour.
HER HONOUR: But would that then be an anchoring federal claim?
MR YOUNG: No because of - - -
HER HONOUR: That is the one thing I do not think you have dealt with yet.
MR YOUNG: The answer is no, because of the terms of section 32, even if I make the assumption your Honour gives me. But before we get to section 32, it is our submission that under these cases dealing with matter, you need invested federal jurisdiction in the first place that then attracts jurisdiction over another non-federal dispute that arises out of the same common stratum of fact.
HER HONOUR: Well, I do not think you should refer to it as non-federal.
MR YOUNG: Strike the - - -
HER HONOUR: Because, in terms of your argument, that is an extra confusion.
MR YOUNG: It is, your Honour. And when we put the submission, your Honour rightly said, "What about the conspiracy claim against the Commonwealth?". Now, we have been treating that as a claim otherwise than a claim that attracted invested jurisdiction of the Federal Court.
HER HONOUR: And describing it as non-federal.
MR YOUNG: And so it is unless section 32 applies, because there is no other federal statute that gives jurisdiction over that conspiracy claim unless it be section 32. If I assume for the moment that section 32 has no application, then our point about Fencott v Muller in our submission is good and it cannot be saved by reference to the conspiracy claim because that conspiracy claim, absent section 32 applying, does not attract federal jurisdiction and therefore cannot be the magnet to attract any accrued jurisdiction in relation to the claims against my clients. Hence we move to the proposition your Honour asked me to address, section 32.
The first point I would like to make, your Honour, by taking your Honour back to Philip Morris - I think Dr Griffith handed your Honour a copy of the case. I illustrate it by reference to a passage in the judgment of Justice Gibbs, as he then was, dealing with section 32 at page 495, the first complete paragraph dealing with an argument by the Solicitor-General for the Commonwealth who, at that time, was not Dr Griffith, that section 32:
confers on the Federal Court jurisdiction in associated matters in respect of which the Parliament is empowered to pass a law although no law, apart from s. 32(1) itself, has actually been passed.
And a trading corporation example was given. His Honour Justice Gibbs at about point 6 rejected that argument.
HER HONOUR: And Chief Justice Barwick, but I do not think anyone else did.
MR YOUNG: No, Justices Wilson and Aicken, likewise, rejected the argument that section 32 had that additional reach that your Honour has put to me.
HER HONOUR: There may be a question - there may well be a construction question and a question whether the Court should reconsider what was said in relation to it in Philip Morris but that is not a point that you would like to agitate.
MR YOUNG: Section 32 comes to the salvation, your Honour. There is the anterior constitutional question about matter.
HER HONOUR: Yes.
MR YOUNG: What is put to me in section 32 saves the day because it is a federal statute investing jurisdiction. But as to that - - -
HER HONOUR: If it is an associated matter.
MR YOUNG: I will come to - that is the next stage of applying section 32. But as to whether section 32 is confined to giving jurisdiction over a Commonwealth enactment such as the Copyright Act which, at the time of Philip Morris, did not invest any jurisdiction in the Federal Court, which is what in Philip Morris Justices Gibbs, Aicken and Wilson considered - - -
HER HONOUR: Can I just stop you there. I am going back to what Justice Gibbs said. What did he mean when he says:
In my opinion it is intended to perform one function only, that is, to confer additional jurisdiction".
Well, what did that mean, what does that mean?
MR YOUNG: You can trace it back to the top of the page, your Honour. That is, the case was concerned with jurisdiction under the Copyright Act, the federal statute, but which failed to invest jurisdiction in the Federal Court. It invested jurisdiction in the Supreme Court.
HER HONOUR: So, it was a federal matter.
MR YOUNG: But a federal statute, and his Honour felt that section 32 would give the Federal Court jurisdiction under the copyright law being in a federal enactment but it would not go so far as to give the Federal Court jurisdiction in respect of all matters that the Constitution authorised the Parliament to pass laws about, such as 75(iii) or trading corporations or the like.
HER HONOUR: Where does his Honour say that?
MR YOUNG: That was the Solicitor-General's argument, your Honour, at about point 3, "empowered to pass". His Honour gives an example about trading corporation and then his Honour rejects the argument.
HER HONOUR: But what his Honour is doing - I will have to read this more carefully at some stage - but I think what his Honour is doing is distinguishing between statutory rights that might be created and not at all addressing jurisdiction to deal with common law rights which may come about, for example, under sections like - - -
MR YOUNG: No, there are three distinctions, your Honour. The narrowest view of section 32 is that it confers jurisdiction under other federal statutes enacted by the Commonwealth Parliament. The second view, wider than that, is it confers jurisdiction under other federal statutes already enacted, or which could be enacted by the Commonwealth Parliament, but which have not yet been. Justice Gibbs rejected that. The third view was that it went wider still and covered any associated matter.
HER HONOUR: It does say it applies if there is a matter which arises under an existing federal law. Now, on one view an action for conspiracy might arise under the Constitution in any event.
MR YOUNG: Yes. Well, there is another passage, your Honour, later on 495 where his Honour makes it clear that - my reading, I believe, is the correct one. About eight lines from the end his Honour uses the expression "additional jurisdiction" again:
only in matters of the kinds described in those sections of the constitution, and only if those matters - - -
HER HONOUR: Yes, well we have got one that is described in 75(iii).
MR YOUNG: But his Honour adds another - - -
HER HONOUR: Any only if that is - no, the statute adds the other, associated.
MR YOUNG: I will come to that, your Honour, but what his Honour says of section 32 is that it does not confer jurisdiction of the kinds described in the Constitution. He adds another requirement:
only if those matters are associated with the matters already within the jurisdiction of the Federal Court.
The decision in the case was only that jurisdiction could be exercised by the Federal Court under section 32 in relation to the Copyright Act, it already being enacted. But the short point I wanted to raise, your Honour, was that there were differing views in Philip Morris about the ambit of section 32. Justice Gibbs, at 495, Justice Aicken at 530 and 538, Justice Wilson at 547 would all confine it to the narrowest category.
HER HONOUR: Well, that is to matters within 75 and 76.
MR YOUNG: No, that is to matters within 75 and 76 provided there is already a federal statute.
HER HONOUR: I am sorry, yes.
MR YOUNG: There is already a federal statute but not conferring jurisdiction on the Federal Court, and that was all that was thrown up by the case because of the Copyright Act. It would seem at least that Justice Mason may go wider at 516.
HER HONOUR: But is not all of this showing that you have a construction question?
MR YOUNG: No, your Honour, because - - -
HER HONOUR: And maybe a prerogative writ point?
MR YOUNG: No. You have a constitutional question unless section 32 fills the void, and if on its proper construction section 32 does not fill the void, you are left with a constitutional question and these are arguments why section 32 does not fill the void.
The final matter, your Honour, relates to the application of section 32. I am not sure if your Honour has it in front of you. I will just read the words.
HER HONOUR: It is not far. Yes, I have it.
MR YOUNG: The words I want to focus on, your Honour, are "in respect of matters not otherwise within its jurisdiction". Now, the argument is that that here is 75(iii), that could be conferred, has not otherwise been conferred, but it is a matter not otherwise within the jurisdiction of the Federal Court. But I read on:
that are associated with matters in which the jurisdiction of the Court is invoked.
that must mean "validly invoked". It cannot mean - - -
HER HONOUR: Can I stop you there. There is no dispute that the jurisdiction was validly invoked with respect to breaches of award and various federal Acts.
MR YOUNG: No dispute by us, your Honour.
HER HONOUR: No, by anyone I think.
MR YOUNG: No, but that raises the question, what is the matter, leaving aside section 32, in which the jurisdiction of the Court is invoked as against my clients validly - - -
HER HONOUR: No, it does not. The section does not say against your clients, or against any client, or against a party. It talks about "matters", so therefore the question is - - -
MR YOUNG: Yes, but what is the association - - -
HER HONOUR: Yes.
MR YOUNG: What is the association between matters within the jurisdiction of the Court - - -
HER HONOUR: Well, that is a nice question, is it not?
MR YOUNG: - - -that connects it with the conspiracy allegation, not otherwise within the jurisdiction of the Court unless placed within by section 32.
HER HONOUR: One would have thought the answer to that was, in part at least, breaches of the various federal laws, awards and so on. It related to the conspiracy, induced breach of contract might be different.
MR YOUNG: But there is no allegations against us and there is nothing within the jurisdiction of the Court that would make a conspiracy claim against the Commonwealth and us associated with jurisdictionally founded claims otherwise before the Court as against us, and that is the point we have been striving to make, your Honour.
HER HONOUR: Yes, but what you have not convinced me is that that raises a question under the Constitution as distinct from a question of the meaning of "associated".
MR YOUNG: Well, then I come back to it, your Honour. If it is not associated on the proper construction of section 32 - - -
HER HONOUR: If it is not associated, you have a constitutional question, yes. But that does not mean that it has yet arisen.
MR YOUNG: You really have to start off, we would say, with what are the claims that are within jurisdiction and you work from there to see whether there is something that can be accrued to it or, alternatively, something associated with it that falls with section 32, and if there is not, you are back at your constitutional question. If your Honour pleases.
HER HONOUR: Yes. Thank you. Well, perhaps I could hear Mr Gotterson first. Do you have anything to add in reply?
MR GOTTERSON: No, if your Honour pleases.
HER HONOUR: Yes, Dr Griffith. MR GRIFFITH: Your Honour, I make two points, apart from agreeing with what my learned friend, Mr Young said, that on this no question submission of my learned friend, Mr Bell, your Honour, our submission is there was as much a constitutional question in Philip Morris when it came before the Court as there was in Ha and Hammond. You cannot say merely because the Court made a decision there is not.
Your Honour, on the second question of my learned friend's references saying, well the question of making claims against persons who are not already parties, and that falls within accrued jurisdiction, my learned friend relies particularly on three Federal Court decisions but, of course, they are not authority at the level of this Court. So, in itself - - -
HER HONOUR: That is true, but we are well accustomed to the notion that superior courts can decide whether or not they have jurisdiction and, in fact, do it all the time.
MR GRIFFITH: Yes, your Honour. But what I say is the issue of whether they are correct is in itself a constitutional question.
HER HONOUR: Yes. That is a question that very frequently is dealt with by proceedings other than removals.
MR GRIFFITH: Yes, your Honour, this is where section 40 cuts across, because absent application under section 40, either with leave for the other applicants, and as applies on the Attorney's application, your Honour, of course that is how these issues would be determined. They might be determined down below and stay there, they might come up, they might come up with special leave. But this is a different process, your Honour. But our submission is it does not alter its characterisation as a constitutional issue. That is an issue going to matter. If your Honour pleases.
HER HONOUR: That is all you wish to say?
MR GRIFFITH: Yes.
HER HONOUR: Very well. I propose to give a short indication now of what orders will be made, giving more complete reasons on Tuesday of next week. I propose to approach the applications by Mr Young's clients and by Mr Gotterson's clients on their own merits and as distinct from those of the Attorney who has a right to have proceedings removed under section 40(1) of the Judiciary Act.
So far as concerns those two applications, it is clear, as Mr Young conceded, that for the constitutional questions he wishes to agitate to arise, both must arise. In other words, there will be no question of the validity of the cross-vesting legislation unless there is neither jurisdiction under section 32 of the Federal Court Act or there is not one controversy arising out of the one substratum of facts within the concept elaborated in Fencott v Muller.
It is clear that Mr Young's clients have not asked Justice North to determine, in respect of the three causes of action which are in issue before me today, whether there is jurisdiction either under section 32 of the Federal Court Act or under the principles elaborated in Fencott v Muller. Not only has no request been made of Mr Justice North by Mr Young's clients, it seems that no other party is at this stage prepared to assert that there is any want of jurisdiction in the Full Court in respect of any of the matters.
In those circumstances, because the question whether there is jurisdiction under section 32, or under Fencott v Muller, is one that really does not involve the determination of any matter of high principle but, rather, an analysis of factual matter, I do not think it would have been appropriate for there to be a removal pursuant to section 40(1) absent an application by the Attorney-General.
I propose therefore, and orders will be made, dismissing the applications by Mr Young's clients and by Mr Gotterson's, and unless they have something to persuade me otherwise, dismissing them with costs. In particular, I regard as important on that issue the failure to ask Mr Justice North to himself rule on the jurisdictional questions that they now seek to agitate.
So far as the Attorney's application is concerned, there is, of course, a right to have that matter removed. The whole of the matter will be removed but it is important to note, again, that no question arises as to the validity of the cross-vesting legislation unless the matter of jurisdiction pursuant to section 32 or in accordance with Fencott v Muller is determined adversely to Mr Young's clients.
As already indicated, that is not a matter on which Justice North has been asked to rule and it is a matter which does involve some consideration of factual matters. It seems to me that the only issue of high constitutional principle - the other matters having been determined - is the validity of the cross-vesting legislation, a matter which, of course, was considered as recently as Gould v Brown and which, one understands, the Commonwealth does not wish to challenge but wishes to have some pronouncement to remove any uncertainty that may exist by reason of the way in which that matter was determined.
Accordingly, the appropriate order in my view is to remit to the Federal Court the entire matter save the question whether the count alleging induced breach of contract is within the jurisdiction of the Federal Court pursuant to the cross-vesting legislation. As already indicated, that is not a question that will fall for decision unless the section 32 and the Fencott v Muller issues are decided adversely to Mr Young's clients.
Therefore the matter which is removed should stay in this Court to be determined if that is a course that becomes necessary. In other words, the removal will follow a course very similar to that which occurred in Newcrest with which Dr Griffith will be familiar.
Now, again, unless something is said to persuade me to the contrary, I would propose that the costs of the Attorney's application abide the outcome of the proceedings in this Court with respect to the cross-vesting legislation.
MR GRIFFITH: I do not wish to say anything to the contrary, your Honour.
HER HONOUR: Nothing to the contrary. I will give more complete reasons on Tuesday and formal orders will then be made also. There will be no need for anybody to attend. I suppose you will all want me to certify for the attendance of counsel?
MR YOUNG: Yes, your Honour.
HER HONOUR: Is there anyone who opposes that course? I will certify for the attendance of counsel. Is there anything else?
MR GRIFFITH: Your Honour, can I mention one thing? I did appear in Newcrest, your Honour. My recollection - - -
HER HONOUR: I thought so.
MR GRIFFITH: They all seem the same after a while, your Honour.
HER HONOUR: I know the feeling. The Court will now adjourn to a date to be fixed.
AT 4.13 PM THE MATTER WAS ADJOURNED
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