Kwa v City of Stirling P6/1998 [2000] HCATrans 182 (14 April 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth Nos P6 of 1998 and P53 of 1999

B e t w e e n -

FRANCIS TAK LAU KWA

Applicant

and

CITY OF STIRLING

Respondent

Applications for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 APRIL 2000, AT 1.27 PM

Copyright in the High Court of Australia

MR F.T.L. KWA appeared in person.

MR A.J. McLEAN: If it pleases the Court, I appear for the City of Stirling in both applications. (instructed by Corrs Chambers Westgarth)

GAUDRON J: In both matters, yes. These matters can be heard together, can they?

MR McLEAN: The P6 raises the same issue as was raised in P4 and P11 which you have just heard.

GAUDRON J: Yes.

MR McLEAN: P53 is a slightly different issue but there is no reason why they cannot be dealt with together.

GAUDRON J: Yes, thank. Mr Kwa, can you deal with both of these matters together, please?

MR KWA: Yes, your Honour. I make, because I am clumsy in my verbal submission and I have already made a written submission which was to be sent to you and the Court.

GAUDRON J: Yes.

MR KWA: I am going to read it out but I am going to be sending a copy to our learned friends because maybe he could understand me as well.

MR KWA: Yes, thank you.

MR KWA: Would you like me to read out the submissions?

GAUDRON J: Yes, certainly, Mr Kwa.

MR KWA: Thank you, your Honour. In terms of section 77(iii) the Commonwealth Parliament can vest judicial power in State Courts. Until recent years it was accepted that because the Commonwealth Constitution makes no provision for the creation, structure and organisation of State courts, the Commonwealth Parliament takes State courts as it finds them.

In recent years however this position has changed and in the matter of Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 138 ALR 577 it was held that Chapter III of the Commonwealth Constitution prohibited State Parliaments from conferring on State courts powers which are incompatible with the exercise of Federal judicial power.

It was found that Chapter III of the Commonwealth Constitution imposes limits on State Parliaments because, (a) State and federal courts are part of an integrated judicial system - per Toohey, Gaudron, McHugh and Gummow JJ; (b) Equality of justice must be assumed from State and federal courts; (c) All courts administer the same principles of common law.

While Brennan and Dawson JJ dissented in this High Court decision, this was on the basis that because the Commonwealth Constitution does not provide for a creation and structure of State courts. There is, therefore, not an integrated system of courts.

5. In the Kable matter it was further found by Toohey J that to the extent that they are invested with Federal jurisdiction the Federal courts and the courts of States exercised a common jurisdiction. It follows that in the exercise of its Federal jurisdiction a State court may not act in a manner which is incompatible with Chapter III of the Commonwealth Constitution.

6. Gaudron J also found that the Commonwealth Constitution provides for an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth. The recognition in Chapter III that State courts are creatures of the States does not direct the conclusion that State parliaments may enact whatever laws they choose with respect to State courts.

7. McHugh J similarly found that State courts are part of an integrated Australian judicial system and further found that the Commonwealth Constitution has withdrawn from each State the power to abolish its Supreme Court. As part of his reasons, his Honour found that, for example, a State law that prevented a right of appeal to the Supreme Court from, or a review of, a decision of an inferior State court, however described, would seem inconsistent with the principle expressed in section 73 and the integrated system of State and federal courts.

8. McHugh J further found that State courts have a status and a role that extends beyond their status and role as part of the State judicial systems. They are part of an integrated system of State and federal courts and organs for the exercise of federal judicial power as well as State judicial power. Moreover, the Constitution contemplates no distinction between the status of State courts where invested with federal jurisdiction and those created as federal courts. There are not two grades of federal judicial power.

9. His Honour further found that a State cannot legislate in a way that has the effect of violating "the principles that underlie Chapter III". Public confidence in the exercise of federal jurisdiction by the court of a State could not be retained if litigants in those courts believe that the judges of those courts were sympathetic to the interests of their State or its executive government. It is a necessary implication of the Constitution's plan of an Australian judicial system with State courts invested with federal jurisdiction that no government can act in a way that might undermine public confidence in the impartial administration of the judicial functions of State courts.

10. While the above case and the judgments referred to above dealt with judicial independence, the judgments are clearly based on the principle of an integrated system and the necessity for public confidence in that integrated system. It is of little value to have an independent judiciary as part of an integrated Commonwealth judicial system if the standards to be applied for access to that independent and integrated judicial system are to be permitted to vary between federal and State courts.

11. The very fact of the current application for special leave to appeal is, if it were needed, proof of the existence of the integrated judicial system. However, the accessibility of the judicial system in Western Australia differs markedly from the accessibility to the federal judicial system. This is inconsistent with the principle of an integrated Australian legal system and can only lead to a lack of public confidence in that system. I close my submission, your Honour.

GAUDRON J: Yes, thank you, Mr Kwa. Now, do you wish to go matter No P53?

MR KWA: Also regarding costs, your Honour. I feel that while this matter does not affect the respondent in any way therefore my submission is that because of the ill effect.....I should not be liable for costs. And, furthermore, while, I understand - - -

GAUDRON J: However, you did serve him as a party. You did make him a party to the proceedings or you did make the City of Stirling party to the proceedings.

MR KWA: Yes, but I have no way to voice this particular piece of legislation, now, other than get somebody in a proceeding but that particular summons was never served.

GAUDRON J: Yes, I understand that.

MR KWA: And also, your Honour, it is not - even if I were wrong there, well, the Court may not - grant me leave anyway because it could be very, very wrong. Now, in another way I could be right but because I was not very, very right I was not granted leave and therefore for a common citizen I thought that the Court would look into this matter regarding costs.

GAUDRON J: Yes, thank you.

MR KWA: Thank you.

GAUDRON J: Are you going to P53, or - - -

MR KWA: Yes, your Honour.

GAUDRON J: Yes.

MR KWA: P53, again, because of my competency in my verbal presentation I make a written submission to your Honour and a copy to my learned friend.

GAUDRON J: Yes, thank you.

MR KWA: Your Honour, yes. Other than what I have submitted in the application book, this is my oral argument. May it please the Court. Your Honours, my argument is before you in the form of the applicant's amended summary of argument at pages 18-26 of the application book. I refer your Honours to these pages. I seek to rely on the substance of this written argument. The argument contains some references to affidavit evidence and other materials that are not included in the application book. These have been included in the supplementary application book which I assume you could have read.

The issue before the Court today is a side issue of a larger proceeding. The supplementary application is provided by way of background material for the Court and may serve to shed some light on the dispute between the parties. It is submitted that the materials in the supplementary application book are essential to establish the factual matrix upon which my argument depends. The supplementary application book is also relevant in that the following appears from the materials contained in the supplementary application book, (a) The events from 9 September 1999 to 13 September 1999 as set out at pages 115 to 116 of the supplementary application book. (b) The service by facsimile (which is not authorised by the Rules of the Supreme Court) as recorded at page 116 of the supplementary application book, (c) The early request by the applicant for time to prepare and file submissions in regard to the respondent's application for leave to cross-appeal as set out at paragraph E at page 116 of the supplementary application book, (d) The lack of any explanation or at the very least any acceptable explanation for the respondent's delay in filing its application for leave to cross-appeal as is evidenced by the contents of the affidavit of Michael John Wadsworth, sworn 9 September 199 at pages 95 to 97 of the supplementary application book.

If it pleases the Court, I would now like to address the respondent's written argument. My first submission is that the Supreme Court of Western Australia is not entitled to disregard its own Rules. This appears at page 21 of the application book. The essence of this argument hinges on the classification of the respondent's appeal. The respondent alleges that it launched a cross appeal, however, I argue that it was actually an appeal. The reasons why the respondent's appeal is an appeal rather than a cross-appeal appear on page 21 of the application book. The respondent's appeal from Scott J was launched almost at the same time as mine and was heard concurrently with my appeal.

The respondent's appeal was adjourned sine die, pending the outcome of my leave to appeal. Upon the success of my application for leave to appeal the respondent rekindled its original appeal. As is clear from this, the respondent's appeal was in existence before I had even been granted leave to appeal. The only reason it was heard after mine is because the respondent only wanted to appeal if my application for leave to appeal was successful. Indeed, they threatened me with this course of action in attempt to force me to drop my appeal.

A cross-appeal would normally be instigated after leave to appeal has been granted to the opposing party. This is contemplated by Order 63 9(4) of the Rules of the Supreme Court which provided for the time to file a cross-appeal running for 21 days from the notice of appeal being served on the respondent. The procedure for dealing with an appeal and a cross-appeal are different under the Rules of the Supreme Court of Western Australia. To appeal from a single judge of the Supreme Court leave must be granted under Order 63 2(2). The application for such leave must be conducted by way of re-hearing, that is, to the same judge who heard the original matter, unless be is unavailable.

This is provided in Practice Direction No 2 of 1994 which can be found at page 4 of the application book. However, in this case, the respondent was granted leave to appeal by the Full Court. Therefore, if the appeal is classified as an appeal it is clear the Supreme Court of Western Australia has completely disregarded its own Rules and has acted ultra vires. I submit that this is a matter requiring the attention of the High Court of Australia. A ruling from the High Court that the Supreme Court is bound to follow its own Rules is required and as such, special leave should be granted.

My second argument is that the Supreme Court cannot exercise the discretionary power of its own volition. This argument is set out at pages 21-24 of the application book. This argument is based on the fact that the respondent did not specifically ask for leave to file the appeal out of time, and did not provide any explanation to the court as to why it was filed out of time. The respondent admits that it was out of time in filing its appeal - see paragraph 2 of the statement of the respondent's argument on page 30. Therefore, the respondent was in breach of the Rules of the Supreme Court. As stated in Ratnam v Cumarasamy - - -

McHUGH J: But the respondent put on an affidavit from Mr Wadsworth explaining the reasons for the delay. The affidavit was dated 9 September.

MR KWA: Yes, but it was not served on me, it was not served on anybody, as far as I can remember. So, no service. I never knew anything about it, your Honour. May I continue, your Honour?

McHUGH J: Yes.

GAUDRON J: Yes.

MR KWA: Yes. As stated in Ratnam v Cumarasamy in paragraph 9 on page 22 of the application book, "a party in breach of a requirement of the Rules as to time does not have an unqualified right to an extension" of time. The Rules "must be obeyed and" for the court to justify extending time periods "there must be some material upon which it can exercise its discretion". There was no such material before the Full Court.

McHUGH J: Well, that is wrong, is it not, Mr Kwa? There was an affidavit of Mr Wadsworth before the court and it was dealt with by the Full Court on 13 September.

MR KWA: The affidavit and all those were not served - it was only served on the Friday for me to appear in court on the Monday, your Honour.

McHUGH J: Yes, well - - -

MR KWA: May I continue?

McHUGH J: I am just pointing out to you that your statement that there was no material before the Full Court by affidavit or otherwise is not correct. There was an affidavit. The affidavit of Mr Wadsworth was before the court asking - - -

MR KWA: It was not filed, your Honour. It was not filed.

GAUDRON J: Yes, continue.

MR KWA: It was only - the paper was not filed and then it did appear in - apparently it did appear in the Full Court but I was not served a copy either, your Honour, therefore, I did not know. I was served a copy on the Friday to appear in court on the Monday, your Honour.

GAUDRON J: Yes, well, continue with your submissions, please.

MR KWA: Okay, thank you, your Honour. The danger of a lax application of the Rules were pointed out in Allen v Sir Alfred McAlpine & Sons Ltd as quoted on page 22 of the application book. From the above and the subsequent details of the argument on pages 23 and 24 of the application book, the Full Court had no power to grant the extension of time. In addition the mode of service was not one contemplated by the Supreme Court Rules and the time between the so-called service and the hearing was insufficient under the requirements of the Rules. It is submitted that these breach of the Rules - - -

McHUGH J: But you had notice of the cross-appeal back in May when the matter was before Justice Scott.

MR KWA: Yes, but at that time they were not going to - they said that it was not going to go ahead - unless I go ahead with it and, therefore, that the notice - well, in other words, well, at that time they were undecided and, therefore, because they were undecided, well, the notice has just been put away, I was not going to - I did not do any preparation, nothing at all. I thought it was all finished. It was before Justice Scott, at that time, and then it is go back to before Justice Scott and I did not anticipate that it went to the Full Court. Justice Scott asked them to, as I remember in the court there, asked them to list the matter for hearing again should they want to appeal against his decision.

From the above and the subsequent details of argument on pages 23-24 of the application book the Full Court had no power to grant the extension of time. In addition, the mode of service was not one contemplated by the Supreme Court Rules and the time between the so-called service and the hearing was insufficient under the requirements of the Rules. It is submitted that these breaches of the Rules by the Full Court are not trivial but are such that the attention of the High Court is required.

GAUDRON J: Yes, now, you are coming to your third point, now, are you?

MR KWA: It has only got about one page, your Honour.

GAUDRON J: Yes.

MR KWA: Well, such discretion opens the door for - if the Full Court can exercise its discretion as it pleases, justice may not be seen to be done between parties to an action. Such discretion opens the door for allegations of bias and favouritism in the court which are ultimately destructive to the judicial system of Western Australia. This leads to an erosion of public confidence in the judiciary, which is similarly destructive to the fabric of society as a whole.

My third and final argument flows from the point made above regarding the time between the serving of the notice of appeal and the hearing itself. The short time period, as well as being a breach of the procedural requirements, was also a breach of the substantive law of natural justice. This small window of time was insufficient for an unrepresented person such as myself to properly prepare submissions as to why leave to appeal should not be granted. It is accepted that under the principles in Jackamarra, the standard placed on an applicant trying to argue against leave being granted is very high, but this is of no consequence as it is the right to mount such arguments that I was denied.

I requested an adjournment of the hearing - see page 10 of the application book at line D. However, this was flatly refused by the Full Court. As a result, I was denied my right to natural justice, the principles of which were stated by Lord Denning in Kanda v Government of Malaya, and are set out at page 24 of the application book. I submit that the High Court must ensure that the State courts exercise natural justice as it is the only Court in the country that has the power and the capacity to keep the State courts in line and provide appropriate checks and balances on their powers and judicial administration. I further submit that there should be a waiver of costs in this application by reason I set out on pages 25-26 of my application book. Does your Honour have any further questions to ask us?

GAUDRON J: I am sorry, they are your submissions?

MR KWA: Yes, they are my submissions, your Honour. Thank you, your Honour.

GAUDRON J: Thank you, Mr Kwa. The Court need not trouble you, Mr McLean.

In matter No P6 of 1998 the argument that the Supreme Court of Western Australia is obliged by force of Chapter III of the Constitution to apply the same practice with respect to the waiver of fees as is applied by Federal Courts is misconceived. Accordingly, special leave is refused. We see no reason to depart from the ordinary practice with respect to costs and, accordingly, special leave is refused with costs.

So far as concerns No P53 of 1999, the application raises only question of practice and procedure. It certainly raises no question of general principle appropriate to attract the grant of special leave. Accordingly, special leave is refused. Again we see no reason to depart from the ordinary procedure with respect to costs. It is refused with costs.

The Court will now adjourn to reconstitute. We will not resume until 2.30 Canberra time and 12.30 Perth time.

AT 1.57 PM THE MATTER WAS CONCLUDED