Northern Territory of Australia v North Australian Aboriginal Legal Aid Service Incorporated D11/2000 [2001] HCATrans 192 (4 May 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D11 of 2000

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

NORTH AUSTRALIAN ABORIGINAL LEGAL AID SERVICE INCORPORATED

First Respondent

HUGH BURTON BRADLEY

Second Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MAY 2001, AT 9.31 AM

Copyright in the High Court of Australia

MR N.J. YOUNG, QC: May it please the Court, I appear with MR P.J. HANKS, QC for the applicant. (instructed by the Solicitor for the Northern Territory)

MR B.W. WALKER, SC: May it please your Honours, I appear with my learned friends, MR A.R. MOSES and MR P.D. KEYZER, for the first respondent. (instructed by North Australian Aboriginal Legal Aid Service Incorporated)

KIRBY J: I have a certificate from the Deputy Registrar certifying that he has been informed by the solicitors for the second respondent that the second respondent will submit to the orders of the Court save as to costs. Yes, Mr Young.

MR YOUNG: May it please the Court. This proceeding involves a challenge to the validity of the appointment in 1998 of the current Chief Magistrate of the Northern Territory. The only relief sought in the proceeding is a declaration that the appointment was invalid. The main ground of attack was that the appointment was made for improper purposes.

The case raises, in our submission, a question of general importance. It also raises a question of importance for the administration of justice in the Northern Territory. At its most succinct statement, the question is whether the purposes for which a judicial appointment is made by an Executive Government are reviewable by a court for improper purpose.

HAYNE J: Is that right or is the question whether it is arguable that that matter is reviewable?

MR YOUNG: No, your Honour. We say it is the former for this reason: Mr Justice Olney went directly to the questions of law involved. They were pure questions of law arising on undisputed facts. His Honour went directly to those questions and determined those questions. It was open to the trial judge to take the view that it was in the interests of justice and in the public interest for those questions of principle to be determined.

KIRBY J: But at the time it was being determined, it had to be determined, as the Court of Appeal said, on the basis that the statements in the pleadings were true. That is just orthodox principles of looking at a pleading which is asked to be struck out.

MR YOUNG: Yes, your Honour, with this qualification: evidence was led as well. The undisputed evidence consisted of the instruments of appointment and evidence proving the eligibility of Mr Bradley for appointment and dealing with the oath.

HAYNE J: Did that evidence go beyond simply then producing documents that were mentioned in the pleadings? It went beyond those matters, did it?

MR YOUNG: No, your Honour, but what it did do - and Mr Justice Olney so found that it did this - it established that the appointment was not limited in time. It was an appointment to continue in accordance with section 7 of the Magistrates Act 1903 until Mr Bradley reached the age of 65. That was the actual appointment, so the pleaded allegations had to be read subject to the undisputed facts which were led in evidence, namely that the appointment was not limited in point of time and there is no tenure issue. That is why the matter as put before Mr Justice Olney was that the vice was that his remuneration was fixed for only two years. That being so, it was argued that the improper purpose was to make an appointment continuing until 65 years in accordance with section 7 but, by not fixing remuneration beyond the second year, leaving the Magistrate open to influence. That was said to be an improper purpose actuated and seen to be actuated by an improper purpose when one looked at the remuneration determination.

HAYNE J: How does that submission then square with what appears at paragraph 8 of the statement of claim, page 7 of the additional materials, where there is an allegation of an agreement - an allegation which I would understand your side of the record to deny, but the proceedings thus far have had to go forward on the basis that that is the case the plaintiffs seek to make?

MR YOUNG: Subject to the evidence that the appointment was in fact made to continue until 65 years. So, yes, the agreement or arrangement in paragraph 8 of the statement of claim has to be accepted, but that also has to be then carried forward into paragraph 12, because 8 is a preliminary allegation. The allegation of improper purpose is in paragraph 12. What is alleged is that:

The purported appointment was made for an improper purpose . . . namely . . .

(b) to give effect to the agreement or arrangement -

The agreement or arrangement was not given effect to in so far as the undisputed evidence was that the appointment was that the Magistrate was to continue in office on and from a date in March 1998 until, in accordance with section 7, he reached 65 years of age. That is why Justice Olney dealt with the matter in the way in which he did and it was erroneous, in our respectful submission, for the Court of Appeal to adopt the following approach.

What they said is effectively this. They did not state that Justice Olney made any error of law or any factual error. Indeed, they accepted his finding that the appointment was for an unlimited duration. They did that at page 32 of the book, lines 5 to 17. They went beyond that and they said, "However, we give a wider reading to the alleged improper purposes", and the Court has seen a number of passages in the judgment of the Court of Appeal where they say, "On a fair reading, we attribute some wider notion to the various" - - -

HAYNE J: Sorry, what reference was that, Mr Young? I missed it.

MR YOUNG: It is the first one, your Honour. The first one was to 32, lines 5 to 17.

HAYNE J: Page 32, got that. The second reference?

MR YOUNG: The second reference, your Honour, I was about to come to.

HAYNE J: Sorry.

MR YOUNG: The second reference is where the court said that the allegations on a fairer reading bear a wider connotation. Now, they said that in numerous places, commencing at paragraph [2], page 16; next, your Honours, at page 27, paragraphs [24] and [25]; next at page 29 at paragraph [29] and then at page 32 - I think there are two pages stamped 32. It is the page that has on it paragraphs [35], [36] and [37], where again they say on a fair reading they read the purposes alleged somewhat more widely.

Now, we make two points about that. First, it is not all clear how the various descriptions of the width of the purpose expressed by the Court of Appeal accommodate the Court of Appeal's finding that, and I read it from page 32:

Of course the legal effect of the appointment, if valid, was, as the second defendant contends, that the first defendant would, subject to the Act, hold office until he reached the age of 65 -

I am not sure how that is accommodated by the various descriptions of the wide reading they place upon the allegations of improper purpose and those wide readings are not identical from one part of the judgment to the other. Secondly, and more importantly, there is a misunderstanding of the principle concerning the non-justiciability of judicial appointments, that is to say the principle is not affected by the width or the colour or the flavour of the allegation of improper purpose that is alleged.

The way in which the Court of Appeal approached it was this: non-justiciability varies according to the precise construction placed on the allegations of improper purpose in the statement of claim, hence, their approach was that if those purposes are to be given the meaning which Justice Olney gave to them, that is to say there was an improper purpose connected with the remuneration being fixed for only two years, they had no criticism of his conclusions of law, but their statement was that if those purposes are to be given the wide meaning we have given them, then justiciability is arguable.

KIRBY J: Would you contest that if a judicial officer were appointed under a statutory grant of power for a limited period at a special salary with a view to participating in a certain class of litigation, that that would be non-justiciable, that the appointment would be non-justiciable?

MR YOUNG: We would say this, your Honour. It depends on the statutory power that is exercised, assuming it is a statutory power, but there are two steps in the analysis. If it is prerogative power that is exercised, the authorities would say that the subject matter of the power, that is to say the Executive's reasons for making a judicial appointment, are not reviewable, but if it is a statutory - - -

KIRBY J: The reasons may not be reviewable, but since Winneke's Case, has it not been made clear by this Court that the actual appointment pursuant to statute can be reviewed if it finds its source in a statute? I think a lot of the old laws on - - -

MR YOUNG: I was coming to that point, your Honour.

KIRBY J: - - - prerogative powers may not be appropriate to Australia.

MR YOUNG: Your Honour is correct and that was the point I was immediately coming to. If the source of the appointment is in a statutory power, the mere fact that it is a statutory power does not necessarily mean that it is reviewable. Barton's Case established that because the power to file an ex officio indictment arose from section 5 of the New South Wales statute. It all depends upon the subject matter of the power and whether, on examination, the statutory power prescribes any limit that make the appointment amenable to judicial review.

Now, here section 4(3) of the Magistrates Act was at large, just like section 5 in Barton. There were additional conditions that had to be met and they were prescribed by section 5, eligibility, and there was evidence that eligibility was satisfied. Secondly, section 6 which provided that the terms of conditions of appointment had to be determined, and they were determined, albeit for a time limited to two years, and - - -

KIRBY J: My question, of course, was not directed at the facts of this particular case - - -

MR YOUNG: No, I understand that, your Honour.

KIRBY J: - - - but simply to plumb the depths of whether or not there are not some circumstances where the facts lend colour to the attack on the exercise of the statutory power. After all, it is a statutory power given for a particular purpose by a Parliament and on ordinary principles it is reviewable for the purpose of seeing whether the purposes has miscarried or - - -

MR YOUNG: My answer to your Honour's question is that it depends upon whether on its proper construction and having regard to the subject matter the power is to be regarded as one that is at large, like the statutory power to file an ex officio indictment, or not.

KIRBY J: Essentially, you say that it takes on a colour from the history and the centuries that go behind this particular form of statutory power?

MR YOUNG: Yes, your Honour, and that was the view expressed by the High Court of the power in Barton. I refer in particular to Justice Wilson's judgment at page 110.

KIRBY J: I think similar figures were expressed in Quin, reversing a decision of the Court of Appeal of New South Wales.

MR YOUNG: Yes. Quin, in our submission, in the passages to which we have referred, does recognise the broad principle that a power of judicial appointment is traditionally unreviewable. Where the power is granted by statute, it depends on an examination of the statute and the subject matter of the power to determine whether the power is at large, but certainly the historical underpinnings would indicate that the starting point is a view that, unless the statute prescribes definite criteria that are identifiable and against which the appointment can be tested, then it is likely that the power was intended to be unreviewable. What is noteworthy about the Court of Appeal is that they did not examine section 4(3), they did not - - -

KIRBY J: They might have been prepared to accept that, that in terms of the statutory criteria they had been fulfilled, but they take the plaintiff to be attacking the appointment on other factual premises which they think it is more convenient to have determined before the issues of law are tendered for decision.

MR YOUNG: Yes, your Honour, but the point we make is that the fundamental principle for which we contend does not depend upon the particular form or breadth of the improper purpose that is alleged by the pleader.

HAYNE J: Could I test that against a case removed from the facts of this case where a person is appointed to an office of this kind and required at the time of being appointed to provide a signed resignation in blank as to date. Let it be further assumed that there is an understanding or arrangement between the appointing authority and the person appointed that the resignation might be given effect to at any time after, say, two or three years. Would that be a set of circumstances that could attract judicial intervention?

MR YOUNG: It will depend on the statutory regime. It may because - - -

HAYNE J: Where the regime is of the present kind.

MR YOUNG: Yes. Assuming it is of the present kind, it may because it may be thought that there is a contravention of the prescription in section 7 that the appointment must be one that continues until the officer reached 65 years of age.

KIRBY J: But the appointment is for that period. It is simply that there is a gentlemen's agreement. The example Justice Hayne gave is said to be one that arose in a neighbouring country.

MR YOUNG: I think his Honour's example went beyond a gentlemen's agreement. If it were only a gentlemen's agreement, the Court of Appeal said in their judgment that there would be nothing untoward about that that would be capable of invalidating the appointment.

HAYNE J: But the sting of the allegation against you in the statement of claim is at page 10, paragraph 12(d):

to create what was, in effect, a two year appointment subject to review -

I suspect that one could mount a series of criticisms about the way in which that is pleaded, but is that not part of the sting of what is put against you?

MR YOUNG: Your Honour, two things about that. Firstly, there is of course a finding both by the trial judge and the Court of Appeal that the appointment was in fact a continuing one. They made that finding. That allegation is there but that must be read subject to the undisputed evidence that was led.

CALLINAN J: Mr Young, could I just ask you a question about the evidence. Somewhat unusually perhaps, the statement of claim refers to an affidavit and adopts what is said in an affidavit. As opposed to the inferences to be drawn from the facts, what was the area of factual dispute, if any, between the parties?

MR YOUNG: The area of factual dispute was whether the purposes alleged were in fact held.

CALLINAN J: That is a matter of inference, is it not?

MR YOUNG: That is a matter of inference, but there is no relevant factual dispute that intrudes upon what we say are the questions of law that Justice Olney determined.

CALLINAN J: Except that at trial, might not the parties give evidence denying any impropriety?

MR YOUNG: Of course they may, your Honour, but we say there is an anterior question. That is to say, regardless of the precise improper purposes alleged and their breadth and regardless of whether it is the wide reading of the Court of Appeal which is to be adopted or the more narrow way in which the allegation was put by the plaintiff before Justice Olney, it does not matter. A judicial appointment under section 4(3) is not reviewable on grounds of improper purpose.

KIRBY J: You take a threshold point. You say the Executive Government should not be embarrassed by having to answer in a court of law to these sorts of allegations. These are not justiciable.

MR YOUNG: Yes. Further than embarrassed, we say that the ongoing uncertainty surrounding the validity of the appointment of the Chief Magistrate is a matter of real public interest and concern.

KIRBY J: I think we understand that. What is the practicality so far as a trial - if a trial were held, one would assume that the Supreme Court would expedite the hearing. Has there been a date fixed for the trial?

MR YOUNG: No, there has not been a date fixed.

HAYNE J: Is there any reason not to have a seven plus seven plus seven type timetable and a trial fixed very quickly?

MR YOUNG: It may depend upon discovery issues.

HAYNE J: Which lie within your camp, I would have thought, most acutely.

MR YOUNG: They do, your Honour, but there may be matters of public interest privilege - I do not know - but discovery is not complete.

KIRBY J: Is there anything else you can say? There is a Kable point, is there not? That only comes up, as it were, a couple of steps down the line, does it not?

MR YOUNG: The Kable point was really said by the Court of Appeal at page 38 of the application book to be more or less identical to the improper purpose point. What the Court of Appeal extracted from Kable was that there was a principle - - -

KIRBY J: But may that not, as it were, bump out the so-called "prerogative" considerations?

MR YOUNG: No, your Honour, for several reasons.

KIRBY J: After all, it is found in the Constitution.

MR YOUNG: First, the point extracted from Kable was this, that security of tenure must be assured and it is arguable that there was a principle that a purpose offensive to judicial independence will invalidate a judicial appointment. That extraction of principle from Kable is, in our respectful submission, wrong. There are express statements in the judgments in Kable that no principle can be extracted from Chapter III that affects the exercise of a power to appoint judicial officers in a State or Territory. Those passages appear in each of the majority judgments.

KIRBY J: There is also the question of whether the Territories are within Chapter III for the purpose of the judicature.

MR YOUNG: Yes. The first point we make in opposition to the Kable point is that there is no requirement of security of tenure in respect of Territory judicial officers.

KIRBY J: I think your time is up, Mr Young. We will ask what Mr Walker says and you can have some time in reply.

MR YOUNG: If the Court pleases.

KIRBY J: Yes, Mr Walker.

MR WALKER: Your Honours have apprehended that we would not contest for a moment the transcendent importance of the issues, whether they are raised under the banner of a constitutional argument or whether they are raised as a matter of statutory interpretation. However, there have now been two hearings in these proceedings devoted to the question as to whether there should be a hearing of the case. My learned friend makes a telling slip when he refers to Justice Olney as the trial judge. There has never been a trial.

CALLINAN J: Mr Walker, could I ask you what you say about the possibility of proof of facts at a trial?

MR WALKER: Yes. Your Honour's question to my learned friend correctly, with great respect, refers to the difference between the evidence and the inferences to be drawn from it. The evidence in this case has been referred to by the Court of Appeal, and your Honours have seen it in the supplementary bundle, because, as the Court of Appeal observed - and if I may be permitted this observation - somewhat irregularly the particulars in the pleading undoubtedly include matters which would not in a Judicature Act sense be regarded as particulars or allegations of fact but rather references to sources of evidence. That of course turned out to be useful rather than otherwise for the purpose of essaying a view of these proceedings were they to go to a trial, and particularly in the context of the kind of issue your Honour has asked me about.

Some of that evidence as to its effect is contained in allegations of fact in the statement of claim and they include at their highest the allegation, for example, in paragraph 12 of improper purpose, to which my learned friend made reference and which is an important part of the case assumed to be correct for the purposes of the argument so far conducted below. That is a purpose to be inferred from a mixture of material which includes conversation, that is, speech, and writing.

CALLINAN J: And might conceivably cover perhaps answers to interrogatories. Do you have to get leave to administer interrogatories in the Territory?

MR WALKER: Apparently not. There is that but, of course, whenever a person's document is put against them or a person's prior words are put against them, they are entitled to answer. They are entitled to answer so as to put in context, they are entitled to answer so as to say, "They are not the only words", or, "Those are not the exact words", or, "Those words were followed by the following", or, "Those words were said in the following circumstance".

In short, it is not only procedurally - that is, this is a summary dismissal case - but also as a matter of procedural fairness and the substance of the argument between the parties which renders it impossible for this Court, were special leave to be granted at this stage, to deal with the facts in otherwise than what might be called a feigned or fictitious fashion. In particular, the Court could not and should not, particularly bearing in mind the fraught subject matter and bearing in mind the factors your Honour Justice Kirby has pointed out, there are understandable executive sensitivities, draw inferences as if your Honours were trial judges. Your Honours cannot and should not - - -

KIRBY J: I do not quite feel the same sense of outrage as you are painting about doing that. I mean, it is a normal in a strike-out of pleading to proceed on the basis that you accept as true allegations in the pleading and then you ask, "Does Mr Young have a good knockout point?" He says he has a complete answer at the threshold.

MR WALKER: Yes, I am sorry, I have not put myself clearly. Of course that is the basis upon which it must proceed. That is conceptually distinct from drawing inferences so as to find facts. It is quite the opposite of finding facts. It is taking the facts without any judicial finding.

KIRBY J: Then he says, "Don't busy yourself in the facts. They are no business of the courts. Keep out".

MR WALKER: The pleading has to be read and the Court of Appeal has read the pleading. This Court, were special leave to be granted at this stage, would also have to read the pleading and no doubt this Court would not be told to keep out of the facts, but this Court naturally could not and would not and may not in any fashion draw inferences in the way the one would at a trial or on an appeal by way of technical rehearing.

Now, your Honours, for those reasons, unless my learned friend were to succeed, not only to get special leave at this stage, but on the appeal, and to succeed where the test was, "Should this case go to trial?", then no finality will be brought. Were we to succeed in the Court of Appeal naturally neither the allegations of fact, the particulars of fact, the evidence referred to, nor what might be called assumed inferences available from that material, would have the status of any finding binding between the parties. That would have to go back to trial.

KIRBY J: It surely is a matter of concern that there is this case before the courts; there is the Chief Magistrate; there is an element of uncertainty raised by the litigation and it is in the public interests that it be cleared up quickly and we are told that the matter is not even the subject of a disciplined schedule of dates for the purpose of setting it down for trial.

MR WALKER: Your Honour, we are the party who sought expedition in this Court because we wished to have the matter proceed in the Supreme Court.

HAYNE J: Does it follow that you would abide a set of very tight directions given in the Supreme Court to bring this matter to trial very promptly?

MR WALKER: Yes. There can be no doubt that this is the kind of case which, to judge from the way in which the Territory has presented its position hitherto, is not expected to include a great deal of what I will call contested primary fact. Public utterances and documents now public and some documents still private which may become public, are, as we understand it, the nature of the case.

KIRBY J: I can see arguments of public interest privilege being raised in respect of that and further interlocutory hearings, whereas Mr Young tenders this knock-out point. He says you do not get into any of that. There is a point of law at the threshold.

MR WALKER: Yes, of course. Your Honour, this is one of the oldest blandishments, with respect, in terms of case management. We can finish this case quickly by looking at this point of law.

KIRBY J: But it is tendered also as an issue of principle. It is not simply convenience.

MR WALKER: Quite, and I say nothing deprecating about so-called convenience. This case on all sides requires early attention, but that - - -

HAYNE J: It is the old separate issue point, "If you resolve this issue in my favour".

MR WALKER: That is never said as the preface but needs always to be made explicit. In this case that is particularly acute. There have now been two hearings devoted to the question of whether there should be a trial of this case. My friend wants, by leave of this Court, another test of that issue. Unless he totally succeeds - and I mean totally succeeds - in that, then nothing will have happened in this case to allow important public issues to be found and ruled on according to law.

Importantly, none of the arguments my learned friend wishes to put in the case for which he now seeks special leave would be precluded at all were the case to go, as the Court of Appeal held, to trial. None of the important arguments about so-called justiciability would be in any way affected or taken away from him or reduced in importance by the case going to trial.

KIRBY J: Just an awful lot of delay and uncertainty, including for the Chief Magistrate himself.

MR WALKER: The delay, your Honour, is greater if special leave is granted at this point, if one accepts the supposition that it is possible we may succeed in whole or in part in this Court.

CALLINAN J: What about though the cases that are being heard by the Magistrate now? Say you were to succeed, might there not be - - -

MR WALKER: That is a reason why the sooner we have a determination based upon facts which will, therefore, be binding for all purposes, the better, although I hasten to say I am not suggesting for a moment that there is at law, where there has been no application for disqualification, any matter which would be affected as to its outcome, but that is not a question that we can - - -

CALLINAN J: I am sorry, I do not quite understand. Are you that saying everybody who has been appearing before this Magistrate has made an application for his disqualification?

MR WALKER: No, no. I have no knowledge of anyone having made such an application.

CALLINAN J: But perhaps it might not be a necessary foundation for a subsequent challenge that there has been an application.

MR WALKER: No. Your Honour may well be right but, in our respectful submission, that is why there ought to be trial which will be binding either way. There will not be a trial if this goes to this Court from this point until there has been a ruling in our favour by this Court and then, for the first time, facts found. What my learned friend is holding out is a knock-out blow only if he wins completely and, in my respectful submission, that then leads to the second reason why leave should not be granted at this stage.

As your Honours' examples from the Bench to my friend this morning already demonstrate, testing the availability of principle in this case, particularly as to the threshold issue of whether judicial review is available at all, is an exercise which will always involve hypotheticals so as to see, first, whether there is a line and, second, where it may be located and, third, where the present case falls, as to which side of the line.

Now, in our respectful submission, such hypotheticals, though an essential part of argument, should always best be used when there are actual facts of the particular case rather than the level of generality and abstraction which is necessarily the case in paragraphs such as paragraph 12 of the statement of claim as it stands at the moment.

KIRBY J: What is the relevance to the consideration of the convenience of the fact that it would be very difficult for the Court to deal with the constitutional questions until, say, August or September? How does that weigh?

MR WALKER: That it adds even more greatly, in our submission - - -

KIRBY J: Is it possible that the trial could be over by then?

MR WALKER: I cannot speak for the present state of the lists in the Northern - - -

KIRBY J: If the sort of timetable that Justice Hayne proposed and the commitment of both parties to an early hearing of the facts - - -

HAYNE J: If not, why not?

MR WALKER: Your Honour, I was about to say something but if I may say so more diffidently. It is impossible to imagine that one of the Supreme Courts of this country could not, particularly if an application for expedition were properly supported, perhaps even a joint application, and with co-operation between lawyers intent on getting the case ready, it is impossible to imagine why the hearing could not be well and truly over by the date your Honour has mentioned.

CALLINAN J: Except I wonder, Mr Young, whether some sort of arrangement might be thought desirable. I am not suggesting this, I hasten to say, but to import a judge, as it were, in the same way as the Court of Appeal judges were imported. I am not suggesting that that is desirable, but if somebody was minded to do that or if the court wished to do that, that might take some time, I suspect.

MR WALKER: Another way of putting it, your Honour, and it only just occurred to us that if one goes to that for that expedient, as the Court of Appeal did, by definition there is a wider pool of people available than there would be if you were staying within the relatively small numbers of the Supreme Court's permanent establishment. So that, no, that ought not to be counted as something which might slow down in particular and there is only, of course, one judge necessary to be found for a trial.

In our respectful submission, it is precisely the spectacle of perhaps constitutional argument, certainly statutory interpretation argument along the lines of Water Irrigation Commissioners v Browning which really require facts based on actual evidence for this Court best to both construe the statute, apply the statute, discern its purpose and to see whether the actual facts throw up a hitherto unimagined possibility which casts real light and requires change to some of the more absolute statements made in the past about the unexaminability of either certain prerogative actions or the unexaminability of certain statutory discretions as to the appointment of the judiciary.

CALLINAN J: Mr Young, can you tell me whether anybody had given - I do not mean with respect to these proceedings before the High Court - any 78B notices?

MR WALKER: I think my friend and I can both say, yes, section 78B notices have been given.

CALLINAN J: And has there been any indication, for example, whether any of the Attorneys would want to appear at a trial? I know it is an unusual - - -

MR WALKER: At a trial?

CALLINAN J: Yes.

MR WALKER: I think, if anything, the inference to be drawn is that they would not be concerned at a trial.

CALLINAN J: They rarely do, I know, but I am wondering whether in a trial of this kind they might take a different view.

MR WALKER: And may I say the trial judge will have all the powers of any judge to control the time and effect which an intervener would have in terms of the running of the case. Your Honour's experience would, I hope, support the proposition I now put, namely, that it is extremely uncommon where there are facts involved and a contested inferential battle for any of the Attorneys to be involved at that stage.

CALLINAN J: They kept out of the appeal anyway in this case, which - - -

KIRBY J: The law officers have so much to do. I think we understand - - -

MR WALKER: So much international co-operation to be achieved, your Honour, yes.

KIRBY J: Have you covered all the points you want to cover, Mr Walker?

MR WALKER: There is just one matter. Your Honours, my friend said several times that the point about section 7 was that it was to 65. This was an appointment and section 7 governed it. Well, so it does but, as was observed in the Court of Appeal, one needs to read onto section 8 and the device in this case is a device which clearly required resignation, resignation inspired, no doubt, by the fact that remuneration would cease to be payable after the date upon which the review was to be conducted.

The gravamen of our allegation is not that section 7 was breached as such. The gravamen of our allegation was that the facility to a magistrate under section 8 was to be enlisted together with the spur of no remuneration after two years and the gentlemen's agreement, if it be a gentlemen's agreement, that this would be a short-term, limited two-year appointment subject to review. The sting in this case, and the perhaps hitherto unimagined exercise which does need to be made concrete in order for the court to consider principle in relation to it, comes in those last three words "subject to review".

Now, it is said by my learned friend finally that the Court of Appeal said nothing to detract from any of the conclusions or observations of law by Justice Olney.

CALLINAN J: I suppose, Mr Walker, every acting appointment of the kind that seems to be regularly being made in New South Wales, for example, is subject to, albeit perhaps an unspoken understanding that it might be reviewed.

MR WALKER: One hopes not.

CALLINAN J: Well, why can it not - - -

MR WALKER: One hopes not and acting appointments - - -

CALLINAN J: But do you need to say it? That is the point. Does the Executive need to say, "We will review this?" The Executive simply says, "You are appointed as an acting judge", either for a term, a fixed term, or indefinitely, "and we will let you know when we do not want you to continue".

MR WALKER: In my experience I have never seen any evidence of the latter.

CALLINAN J: You would not need it.

MR WALKER: The former was always the case. That does not mean there are not renewals. There are renewals. Acting judges, for example, have no place in the federal judiciary and no doubt pluralism suggests that, just as section 72 has nothing to do with this case, we do not say it applies in this case, the fact of statutory provision for acting appointments, which are long tradition, preceding Federation, means they are an argument which we could confidently expect to be placed in our way in any argument we make about these matters, but these matters - - -

CALLINAN J: I do not know. To the best of my knowledge, they are only a long tradition in New South Wales and I do not how long the tradition is there. There is certainly not a long tradition in other States.

MR WALKER: I am bound to observe, your Honour, it has not been a long and unresisted tradition though. It is a long tradition which has a corresponding long tradition of protest from, amongst others, the Bar Association. Your Honours, may I simply conclude with - - -

KIRBY J: I think in fairness, the New South Wales practice has changed, partly no doubt as a result of that resistance - - -

MR WALKER: Greatly, your Honour.

KIRBY J: - - - and the practice of appointing practitioners as distinct from retired judges seems to have died out.

MR WALKER: Yes.

CALLINAN J: Except that a lot of the retired judges have practised, in effect, as mediators.

MR WALKER: Which mercifully is not the administration of justice, your Honour. It is dispute resolution.

KIRBY J: Anyway, I think we have got off the track. Let us get back to this case.

MR WALKER: Could I conclude simply with this. The proposition that Justice Olney's determinations and observations as to law are uncontested in the Court of Appeal cannot stand with their multiple finding of arguable, propositions that what allegedly occurred in this case offended against the purpose of the statute, namely, to serve the administration of justice, or the constitutional matter to which my learned friend has already referred as a matter of contest between us. They could not find that arguable and also approve of Justice Olney's statement reproduced at page 2 of the application book to the effect that the common law has nothing to say about the independence or impartiality of the judiciary and this Court's recent decisions, for example, in the bias cases, the disqualification cases, apprehended bias cases, in Ebner, will suffice to demonstrate that the Court of Appeal most certainly did dissent from, depart from that approach of Justice Olney. May it please your Honours.

KIRBY J: Yes, Mr Young.

MR YOUNG: Can we make a few brief points? First, in our submission, the questions of principle that arise bear on the capacity of the Supreme Court to entertain the allegations of improper purpose. In those circumstances, there are strong public interest considerations for resolving those points of principle now. That is precisely what was done in Barton. There was a challenge to ex officio indictments on grounds of improper purpose and the High Court considered it convenient to decide in the first instance whether there was any legal foundation for the challenge to the Attorney-General's actions and the attempt - - -

KIRBY J: Well, that is true you said. It is, therefore, a question of convenience. We understand the point. It is conceded that the point is an important one. The question is timeliness and, if it came here now, it would not be heard probably until September. The decision would not be then expected, even with expedition, before the end of the year, maybe next year, and in the meantime you could have had the trial, the whole matter found as facts and then you have tendered to this Court with the benefit, one might expect, of a Court of Appeal decision, the issue as a ripe, final concluded matter, otherwise you have the risk that you will go back into the whole thing.

MR YOUNG: As to those matters, your Honour, we say this. It is not contended that the issues of principle are going to be affected by the facts that are led at trial and, in our respectful submission, questions of principle are such that they will not be affected by any fact-gathering process. The question is whether the appointment is reviewable for improper purpose and the improper purposes have been alleged and it does not matter what evidence is led to support those allegations of improper purpose.

Next, your Honour, my instructions from the Solicitor for the Northern Territory is that it is unrealistic to expect that there will be a trial before August or September, having regard to the current state of the proceedings and the fact that it is likely that there would have to be a judge specially found to sit on the hearing.

KIRBY J: But is this not the sort of matter that would be given the highest priority? One would have hoped so.

MR YOUNG: Well, I am not gainsaying that fact.

KIRBY J: With respect, it is entirely a matter within the internal arrangements of the Supreme Court of the Northern Territory but - - -

MR YOUNG: I am not gainsaying that fact. Those are my instructions and the reason but, further, if it does go to trial and all this evidence is led as proposed in the statement of claim, that does not remove the fact that there are likely to be, one way or the other, appeals and, therefore, the state of uncertainty on that pathway is likely to continue for a greater length of time than if these questions of principle are addressed by this Court.

KIRBY J: And determined in your favour.

MR YOUNG: That is so, your Honour, but if they are determined against us, it may well be that a different course unfolds than the actual trial of these matters.

KIRBY J: But what if it is determined on the footing, as Justice Hayne was asking you, of it all depends, it depends on the fact, that you cannot have an absolute rule, that in the modern understanding of review of exercise of statutory powers the old prerogative principle is not apt. Just assume that is a conclusion.

MR YOUNG: Yes. Your Honour, we would say that no case has approached these sorts of matters on that basis. They have all looked to see whether the power, be it statutory or prerogative, is - - -

KIRBY J: The Court of Appeal in New South Wales in Quin approached it.

MR YOUNG: No, your Honour, with respect. On the section 12 point concerning appointments, the only issue was whether the power was conferred at large, and every statement in Quin supports our position. It is different matter thereafter whether natural justice in terms of the statements that were made had to be accorded to the particular Magistrate. Can I say one final thing? I mentioned it before and our learned friend went back to it, that is to say this review by way of resignation. The Court of Appeal did address that at page 32, the second of the pages 32, paragraph [36], line 36:

It is not suggested that it would be wrong to make an appointment on the understanding that the magistrate would retire -

et cetera.

KIRBY J: I am not so sure about that myself. However, I note what you say. Yes, very well. We will take a few moments to consider this matter. The Court will adjourn.

AT 10.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.24 AM:

KIRBY J: The Court of Appeal of the Northern Territory has decided that whether the plaintiff in these proceedings has a viable cause of action will be better determined when the full extent of the facts pleaded in the statement of claim is understood, for which purpose that court decided that the matter should go to trial rather than be summarily disposed of.

Although there are arguments that support the grant of special leave, it is, in our view, preferable that this Court should observe the restraint normal to an application challenging an interlocutory order. Premature intervention in proceedings before facts are found is often disruptive to the efficient and just disposal of such proceedings.

Necessarily, this decision does not exclude whatever rights the parties might have, whether by special leave or by application under section 40 of the Judiciary Act (Cth) after the trial, then to bring the matter to this Court, findings of fact being made.

Accordingly, special leave to appeal is refused. It must be refused with costs.

AT 10.26 AM THE MATTER WAS CONCLUDED