Sutton v State of South Australia A12/1998 [1999] HCATrans 294 (13 August 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A12 of 1998

B e t w e e n -

JEAN SUTTON

Applicant

and

STATE OF SOUTH AUSTRALIA

Respondent

Application for special leave to appeal

GLEESON CJ

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 13 AUGUST 1999, AT 10.17 AM

Copyright in the High Court of Australia

MR B.M. SELWAY, QC, Solicitor-General for South Australia: Your Honour, I appear with my learned friend, MS A.V. McLEAN, for the respondent. (instructed by the Crown Solicitor for the State of South Australia)

MRS J. SUTTON: In person. I would like Mr King to speak on my behalf. I am not feeling real crash hot at the moment.

GLEESON CJ: We will allow Mr King to speak on your behalf for the period of 20 minutes, which applies to everybody.

MRS SUTTON: Thank you.

GLEESON CJ: Yes, Mr King.

MR J. KING: Thank you. May I briefly explain my presence here today, and my limitations. I am not a lawyer, but a retired chemical engineer, and a member of Whistleblowers Australia Incorporated.

About five years ago Mrs Sutton asked me if I could help her get justice with a particular matter which she was greatly distressed about. I agreed, and in May 1995 took up her issue with the Ombudsman under the provisions of the South Australian Whistleblowers Protection Act 1993 which appeared to be a suitable means for Mrs Sutton to have her issue properly addressed and acted on. That letter of complaint to the - - -

GLEESON CJ: Could I get one thing clear, Mr King. What we are here concerned with is an application for special leave to appeal from a decision of Justice Williams. Is that right?

MR KING: Yes, your Honour. That letter of complaint to the South Australia Ombudsman is the disclosure document, item 1 in the application book. It is a basic disclosure document around which this whole issue is related. So much for the preliminaries, your Honours.

I see my essential role here today as having to justify to the Court why Mrs Sutton's appeal should be heard. Is that correct, your Honour?

GLEESON CJ: That is part of what is involved. A related question is why the appeal should come direct to this Court from Mr Justice Williams and not to the Full Court of the Supreme Court of South Australia.

MR KING: This presentation can be summarised in just a few words. Justice is a right strongly inferred by the Constitution. In support of that claim I refer you to the applicant's material document No 1, previously provided for this hearing. Mrs Sutton was denied justice by Justice Williams in the Supreme Court hearing on 14 April 1998. For argument, in support of that claim I refer you to items 17, 10, 11, 14 and 15 of the applicant's application book.

You will see that Mrs Sutton has been denied justice which she is entitled to under the Constitution. From the time she first took her complaint to the Ombudsman in 1995 and then also by the South Australian justice system, as it is called, up to this date. It is clearly in the public interest - and I stress, in the public interest - in the achievement of justice that this application for special leave to be approved is accepted. This important public interest factor has been emphasised in the application book right through, and is strongly re-emphasised today. The Constitution also strongly infers that the judiciary be independent and act independently. That requirement is also referred to in the applicant's material document No 1. Judicial independence does not appear to have been the case for Mrs Sutton.

GLEESON CJ: Would you excuse me for a moment? There is no reason why Mrs Sutton has to remain in Court if she is feeling unwell. She is perfectly at liberty to go outside.

MR KING: Thank you, your Honour. The history of her case in the courts as revealed in her application book would support that observation, that is, of failure for the courts and the judges to be independent for her case. The reasons given today in this oral presentation, and for reasons given in Mrs Sutton's application book, we ask the Court, in the interest of justice - that is emphasised - and in the public interest, to uphold her request for special leave to appeal. That completes the summary.

There are two main reasons why this matter has got to this stage before the High Court. Firstly, it is considered that there needs to be a decision by the Court as to whether section 51(xxxi) of the Constitution applies in Mrs Sutton's case, and that is that she must get reasonable compensation for the forced removal of a child that she had legally and at considerable expense obtained from Chile in 1987 for adoption purposes. The applicant's material document No 2, previously provided, is a copy of section 51(xxxi) of the Constitution with relevant comments.

Secondly, this application for special leave to appeal is primarily an appeal of the judgment of the honourable Justice Williams in the South Australian Supreme Court given on 14 April 1998, and an appeal against the apparent improper conduct of the hearing on that date. The argument to justify the appeal is given in the application book provided.

The key underlying issue in this matter is that Mrs Sutton has been denied justice, discriminated against, and so victimised under the Whistleblowers Protection Act 1984 by the Ombudsman who has refused to properly investigate her disclosure of illegal conduct and maladministration by the then Department of Community Welfare in its dealings with her.

That behaviour and the response by the Ombudsman was then taken up with the Commissioner for Equal Opportunity as an act of victimisation as broadly defined in section 9 of the Whistleblowers Protection Act. I refer you to the applicant's material document No 3 provided. That is a copy of the Act. Section 9(2)(b) allows an act of victimisation to be dealt with:

as if it were an act of victimisation under the Equal Opportunity Act 1984 -

A major obstacle and difficulty in achieving justice for Mrs Sutton has been to get the courts to understand and agree to just what is meant by "an act of victimisation", as referred to in the Whistleblowers Protection Act. It is behaviour in response to a disclosure which results in the person suffering detriment. Detriment and victimisation come in many forms and are broadly defined in sections 9(1) and 9(4) of the Whistleblowers Protection Act. Detriment includes - and I emphasise "includes" - but is not limited to those examples listed in section 9(4). It is important to observe that it states:

"detriment" includes -

those examples. It clearly means that it is not limited to those examples. One would expect, for instance, that the South Australian Commissioner for Equal Opportunity, who has a role in this business, to understand the meaning of victimisation as meant by section 9. The Commissioner, in fact, explained her interpretation to a select Senate committee on public interest whistleblowing, which held a hearing in Adelaide on 27 January 1994. The Commissioner gave her interpretation quite clearly as what she thought was meant by victimisation. And it was reported in Hansard, a copy of which has been provided for this Court, in the applicant's material, document No 4, a document that records what the Commissioner said, which interpreted her understanding of victimisation. The Commissioner stated that:

If the claim of victimisation -

that she got -

is, `The ombudsman is victimising me by not handling my case properly', we would then look at the victimisation question.

In other words, she will take it up. That is the only example she quoted. When exactly that complaint was later lodged with her, under the provision of section 9 of the Whistleblowers Protection Act, the Commissioner then conveniently had a complete change of mind and rejected Mrs Sutton's complaint, that is, of victimisation causing detriment.

The complaint was then referred to the Equal Opportunity Tribunal for determination and relief under the provisions of section 95(8) of the Equal Opportunity Act. A copy of that section has also been provided for the Court today. I refer to the applicant's material document No 5. Document No 6 is also relevant. Ultimately the appeal was rejected by the Tribunal and was reappealed to the Supreme Court. That, too, was met with failure, and the matter is now before this Court, seeking justice.

During the appeals referred to, there has been confusion and doubt - and this is at the crux of it all - as to what is meant by "victimisation" and "detriment". That was the case even though detailed descriptions based on considerable experience of what is meant by section 9 of the Whistleblowers Protection Act was provided for the hearings. That same material has been provided for this hearing, also, and is self-explanatory. I refer to applicant's material document No 7.

I respectfully ask the Court to consider what "victimisation" and "detriment" really means for whistleblowers, as described in the material provided, which is based, as I have said, on many years of experience in Australia and elsewhere. I believe that that information may be useful for ultimate, proper determination of this matter, as it justifies why we have gone through the system up to this stage.

GLEESON CJ: Have you gone through the system? Why was there not an appeal to the Full Court of the Supreme Court of South Australia?

MR KING: Your Honour, the appeal from the Equal Opportunities Tribunal was not, in fact, required to go to a Full Court.

GLEESON CJ: No, I am not making myself clear. Why have you not appealed from Mr Justice Williams to the Full Court of South Australia?

MR KING: Your Honour, I am trying to explain that, if I may. The appeal from the Equal Opportunities Tribunal was, in fact, required normally to go, by more recent rulings, to the Full Court. The matter actually went to a single judge, by error, who, in fact, officially, more or less rejected it, but then on explanation and request by both the applicant and the respondents, the single judge took over the role of that Full Court, and that is, in fact, what happened. So, it was decided in the Supreme Court that the matter was not that important, and it did not warrant a Full Court hearing and, hence, the single judge took over the case.

Also, your Honour, one of the major problems is, and I am explaining it in this argument, that Mrs Sutton has not had any satisfactory response by the South Australian court system. It is almost a waste of time to take it to the system, we have found. In addition to that, there requires to be a decision of just compensation based on section 51(xxxi) of the Constitution. The Full Court cannot really make a decision on the whole matter unless the High Court first makes a decision on that issue. That is a very important issue. In the past, it appears that section 51(xxxi) regarding just compensation has had very wide interpretations by the High Court, and there is a fair chance that, we believe, the High Court may even include Mrs Sutton's situation as requiring a reasonable compensation.

GLEESON CJ: What was the property that was acquired here?

MR KING: The property in principle is the child, who was removed - forcibly taken from her by an officer of the Federal Government, and the matter organised by officers of the State Government.

GLEESON CJ: So, the essence of your argument is, is it, that the child constituted property that was acquired?

MR KING: In principle. The principle is there. That is why I am referring to the principle of just compensation for forced removal of something - be it property or anything else. It is a principle involved, like the principle of justice, your Honour.

GLEESON CJ: Well, it is not quite anything else. The Constitution talks about the acquisition of property, and I am simply asking you what the relevant property is.

MR KING: I would say the property is the child that Mrs Sutton legally obtained from Chile at an enormous cost, over $50,000.

GLEESON CJ: I understand the argument.

MR KING: It is considered important, in the public interest, that this application be successful for a number of reasons. One is that normally justice is available only to persons who can afford it, and rarely to the poor and less affluent. That is a serious weakness in our justice system, amongst others, I believe. Despite those odds against Mrs Sutton, a pensioner, we have, after four years, managed to get this matter up to this stage of proper resolution, without being defeated and without prohibitive costs. It happens that the system allows dispensation of costs for pensioners under normal - some costs, but it still cost me a lot of money for copying and typing and other things.

There is still the faint chance of justice being achieved, we feel. That is why it is here. There is a faint glow of light, I say, at the end of the tunnel. Mrs Sutton and I are hoping that it is not the light of a train bearing down on us. Another reason in the public interest why this application ought to be successful is that the normal response in South Australia of complaints authorities to serious disclosures of corruption and malpractice, whistleblowers have found, is to suppress and frustrate them. This is the case, especially if the complaints apply to police, departments and senior government employees, and if proper investigation and exposure could cause embarrassment to the government.

I am associated with whistleblowers, and many people who have confronted this situation, and we rarely find, if ever, that we can have disclosures of illegal activity and impropriety and malpractice, we rarely find that we can get it properly investigated if it is likely to cause embarrassment to the government. I have much evidence to support this allegation. I refer to complaints authorities such as the Ombudsman and the police complaints authority, and to other organisations to which complaints of malpractice can be made, such as the psychological board. The Ombudsman and the police complaints authority are becoming notorious in this regard. I can give so many examples, your Honour. It is important, in the public interest, that this undesirable situation be changed. Success for this application could ultimately lead to a means being established, a precedent being set, for this issue and future other issues to be properly investigated and dealt with.

I do not have to tell anyone in this Court how much corruption there is in our society. One of the reasons that it still exists is that it is protected by the police, and it is protected by the court system, and by the authorities which are vested with the responsibility to do something about it. They just will not. So, if we can break that nexus, we have won a fight in the interest of the public.

GLEESON CJ: Thank you, Mr King.

MR KING: Another important influence in the frustration - - -

GLEESON CJ: Thank you, Mr King, your time is up.

MR KING: Am I finished?

GLEESON CJ: Yes, thank you.

This is an application for special leave to appeal direct to this Court from a decision of a single judge of the Supreme Court of South Australia bypassing the ordinary appellate processes within the South Australian court system. No sufficient reason has been shown as to why that course should be accepted, nor has there been shown any sufficient reason to doubt the correctness of the decision of Mr Justice Williams. The application is refused. Is there any question of costs, Mr Solicitor.

MR SELWAY: Your Honour, we make an application for costs. Could I refer your Honour to appeal book 44 which is Mrs Sutton's application, where she sets out her reasons why an order for costs should not be made in favour of the respondent. We would say that it is a normal matter and cost should follow the event, but I draw the Court's attention to those matters that is raised.

GLEESON CJ: You are drawing that to our attention for what purpose?

MR SELWAY: Only to make the point that Mrs Sutton has made that application that the costs should not be made.

GLEESON CJ: Yes, but what do you say about her application? What do you say in response to her arguments?

MR SELWAY: What we say is that this is a normal matter and costs should follow the event. The Court dealt with the issue in South-West Forest Defence Foundation v Department of Conservation and Land Management. That matter is set out in the list of authorities for the respondent at pages 20 to 23, now reported [1998] HCA 35; 72 ALJR 1008, stating the general proposition that even where a person claims to be pursuing a public interest matter, it is still proper for costs to follow the event. We would say that is the normal rule and should apply here.

GLEESON CJ: And you submit that the arguments advanced by Mrs Sutton should not prevail?

MR SELWAY: They should not prevail, your Honour.

GLEESON CJ: Mr King, what do you say about that?

MR KING: In other words, they are saying that she should pay costs?

GLEESON CJ: That is what they are saying.

MR KING: That is just nonsense. First of all, might I add that as a pensioner I was under the impression that she was entitled, and I was told that she was entitled, to lodge an application free of costs.

GLEESON CJ: Free of cost?

MR KING: Yes; and I would have thought, too, that under the circumstances, when you consider what that lady has been through, mainly at the hands of these people and the government, that they should not be so sinister and intimidating as to charge her costs.

GLEESON CJ: What did Mr Justice Williams do about the matter of costs?

MR KING: The costs were waived, your Honour. There was no cost charged.

GLEESON CJ: He made no order for costs.

MR KING: No order for costs.

GLEESON CJ: Would you take a seat, please. What do you say about that? Did Mr Justice Williams make an order for costs?

MR SELWAY: I am not certain, your Honour.

GLEESON CJ: I am looking at page 37 of the application book.

MR SELWAY: I understand they were not sought in that matter, your Honour.

GLEESON CJ: Your client did not seek costs?

MR SELWAY: Yes, your Honour.

GLEESON CJ: Thank you.

MR SELWAY: We might say, your Honour, in the Supreme Court, if it matters, Crown counsel who are employed by the Crown are entitled to their costs. That is to say, the costs of their appearance is a proper matter to be taken into account in determining costs. That is not the case in this Court. So, for example, my appearance here would not have any impact on any costs that would be sought. The costs we are seeking, effectively, are the costs of photostatting.

GLEESON CJ: It is very frank of you to bring that matter to our attention, Mr Solicitor. It seems to be an argument against you.

In view of the fact that no order for costs was sought by the State of South Australia at first instance, the application for costs by the State in relation to this application is refused.

MR KING: Could I have five minutes to respond, your Honour.

GLEESON CJ: No, we dealt with your matter. We are now going on with the next case.

MR KING: I thought we had five minutes to respond to the decision, and to the argument of the respondent.

GLEESON CJ: There was no argument of the respondent. We did not call on the respondent. We did not find it necessary to call on the respondent, because we did not think that the argument that you advanced - - -

MR KING: I think this case has been conducted wrongly, your Honour, in that - and the only reason I spent 20 minutes in presenting my argument is because you requested certain information. If I was allowed to put my case without interruption, it would have been within 20 minutes. It is wrong. It is unjust.

GLEESON CJ: Mr King, you listen to what I have to say to you. Judges engage in discussion with people who are putting arguments in this Court so that the meaning of the arguments can be properly understood. I asked you, when you argued about acquisition of property, what was the property you were talking about, and you explained to me that it was a child.

MR KING: Very simply.

GLEESON CJ: I understand that.

MR KING: And quickly.

GLEESON CJ: Yes. Now, we have heard argument from you; you have had your allotted time, and we are going on to deal with the next case.

MR KING: It is unjust, and I refer you to.....I supplied to the Court as well.

AT 10.44 PM THE MATTER WAS CONCLUDED