Samad & Ors v District Court of New South Wales & Anor S301/2000 [2001] HCATrans 394 (21 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S301 of 2000

B e t w e e n -

ABDUS SAMAD, MARY SAMAD, BARBARA STREET CLINIC PTY LTD

Applicants

and

DISTRICT COURT OF NEW SOUTH WALES

First Respondent

DIRECTOR-GENERAL OF THE NEW SOUTH WALES DEPARTMENT OF HEALTH

Second Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 21 AUGUST 2001 AT 2.04 PM

Copyright in the High Court of Australia

MR A. ROBERTSON, SC: May it please your Honours, I appear with my learned friend, MR G.L. TURNER, for the applicants. (instructed by Yandell Wright Stell)

MR M.H. TOBIAS, QC: If the Court pleases, I appear with MR R.P.L. LANCASTER for the second respondent. (instructed by Phillips Fox)

GAUDRON J: The Deputy Registrar certifies that she has been informed by the solicitor for the first respondent, the District Court of New South Wales, that that respondent does not wish to be represented at the hearing of this application and will submit to any order of the Court save as to costs. Mr Robertson, it appears that the regulations have since been amended; is that correct?

MR ROBERTSON: That is so, yes, your Honour.

GAUDRON J: Then why should the Court concern itself with the matter?

MR ROBERTSON: Can I approach that in this way, your Honour - - -

GUMMOW J: Do we have the present text conveniently?

MR ROBERTSON: It is in the folder of materials, your Honour.

GUMMOW J: Yes, I know.

MR ROBERTSON: In a sense, perhaps, we would say somewhat ironically, that at least in part anyway, the present text adopts a different view than the Court of Appeal did, but it is at pages 112 to 113 of the supplementary bundle. Does your Honour have that?

GUMMOW J: Yes.

MR ROBERTSON: So what has happened is that there was a single list preceded by "The Director-General may" and the Court of Appeal said, of course, "may suspend or cancel" means "must suspend or cancel" and the July clause 149 now, broadly speaking, divides that matter up into two lists, although makes some other amendments as well.

GUMMOW J: Yes.

MR ROBERTSON: So that the first group in subclause (1) says, "The Director-General must suspend or cancel" and then the second group in subclause (2) says, "The Director-General may". Obviously that is a different result to the result that the Court of Appeal arrived at in - - -

GUMMOW J: Where would the facts in your case now fall under 149, in (1) or (2)?

MR ROBERTSON: If your Honours look at page 113, your Honours would see that so far as my clients are concerned, if your Honours look at the transitional provision, clause 162, the position remains the same so far as my clients are concerned, that is if the old regulation applies. If the old regulation did not apply, then - - -

GUMMOW J: If these events were all happening over again and 149 applied, where would your client fall?

MR ROBERTSON: If they did, then it would come within 149 - or this would be the ground - whether it was established or not is another thing - (1)(d). The two differences that have been made by this amendment is that there is now an insertion of the opinion of the Director-General - do your Honours see that in the second line of paragraph (d)?

GUMMOW J: Yes.

MR ROBERTSON: And the words "causing disruption to the amenity of the area", which is in the old regulation, has been amended to "a significant adverse effect".

GUMMOW J: Yes, thank you.

MR ROBERTSON: If your Honours please. To answer your Honour, if I could approach it in this way, that although not directly affecting my clients, the regulation has been amended, in my respectful submission, if one looks at the reasoning of the Court of Appeal - and I will, if I may, take your Honours to it shortly, and therefore the ratio of that decision, it stands for a proposition beyond the particular construction of this regulation. What it involves is, as we would submit, for the first time a crossover, if I can put it that way, between cases such as Finance Facilities, where one is looking at a list of circumstances but for the benefit of an individual, and the Court of Appeal has applied that approach, the approach say of Mr Justice Windeyer in Finance Facilities, to a licensing regime where, of course, the regime is not for an individual's benefit in that sense - there is no entitlement, there is no right in that sense - and therefore, in our submission, the decision of the Court of Appeal stands for this proposition, that where there is a list of circumstances or grounds upon which a licence granted may be cancelled or suspended, assuming, as would always be the case, that the licence regime is for the interests and protection of the public, then when one of those grounds is made out and there is a power either to suspend or to cancel, then one of those things must happen, that is, there is no discretion either to impose conditions or to require the matter to be rectified.

Now, plainly there are different circles of people directly affected. There is my clients and their 200 clients directly affected because the amended regulation does not touch their circumstances. There is, as we have put in the - - -

GUMMOW J: What is the present position of your client as to its legal standing at the moment? Is it operating or not operating?

MR ROBERTSON: Yes, it is.

GUMMOW J: Is there some stay in force?

MR ROBERTSON: There is a stay in the sense that, as your Honours would have seen, the Court of Appeal's order was that the decision be stayed, I think, for four months - - -

GUMMOW J: That is right.

MR ROBERTSON: - - - and then by agreement between the parties the position is that the status quo be maintained until two months after this Court disposes of the matter.

GUMMOW J: I see.

MR ROBERTSON: As your Honours may have seen, at the time the authority was cancelled there were some extra conditions, if I can put it that way, imposed by the Director-General on the Clinic and they are set out, if I could ask your Honours to look at it, at the foot of page 111 of the application book. I am taking your Honours to these because, in a sense, it gives a good indication of the breadth of the considerations that the Director-General may legitimately have regard to in administering the scheme. So it says at the foot of 111 that the Clinic:

must give . . . three months notice of cessation . . .

2. No more than 300 clients in total shall be dosed -

So, again, in a sense, the impact on "the amenity of the area" is a matter directly within the control of the Director-General by conditions:

hours of operation which are no earlier than 6.30am and no later than 8.00pm.

Of course, on the Court of Appeal's approach, their Honours would have held that if you opened the Clinic at 6.29 then the licence must be suspended or cancelled.

GUMMOW J: Yes.

MR ROBERTSON: If I can take your Honours to that in a moment. Then it is to be opened for seven days - that is condition 4. Condition 5:

Shall take active steps to ensure that patients whose behaviour is disruptive to the local community are identified -

Condition 6:

rules are published -

Condition 7:

shall ensure the administration of doses to Clinic clients in police cells whenever necessary.

Condition 8:

provide the Department with an after hours telephone numbers -

So those are matters of great detail.

GUMMOW J: So at the moment these conditions are operating as a term of the stay, as it were, is it - - -

MR ROBERTSON: No.

GUMMOW J: - - - or as an attachment to a still existing licence?

MR ROBERTSON: Yes, as an attachment to a still existing licence. They were supplementary conditions. So there is another lot of conditions as well, I do not think I need trouble your Honours with. The only variation of what one sees at page 112 is that by agreement the 300 clients are reduced to 200.

GUMMOW J: I do not quite understand what would happen at the end of this period of current extension, because what would then go out of existence is something different than that which was in existence when the Court of Appeal made its order, if you see what I mean.

MR ROBERTSON: If this Court granted special leave to appeal - - -

GUMMOW J: Yes, but assume it did not.

MR ROBERTSON: If it did not, then two months from today the licence would disappear. That is the effect of it, in short, and obviously that the Clinic would close.

GUMMOW J: And if leave were granted, the idea is the present regime would continue.

MR ROBERTSON: Yes, until the Court disposed of the matter, whichever way it disposed of it.

GUMMOW J: Yes, thank you.

MR ROBERTSON: Thank you, your Honour. Could I take your Honours then to the judgment - - -

GAUDRON J: I do not think we need trouble you in that regard, Mr Robertson.

MR ROBERTSON: If your Honours please.

GAUDRON J: Yes, Mr Tobias.

MR TOBIAS: Your Honours, the applicant raised three special leave questions in their summary of argument. Only the third is the one that is really sought to be pursued and that is the issue as to whether on the words "may suspend or cancel a licence" in the former clause 149, whether that was properly construed by the Court of Appeal as conferring a power which must be exercised. No error of principle on the part of the Court of Appeal is advanced in the applicants' summary. On the contrary, the applicant merely takes issue with the application of settled principle to the particular provisions of a clause which has now been revoked.

GUMMOW J: I am just looking at the grounds of appeal at page 88. They really say in a number of ways the same thing, do they not, grounds 2 to 10?

MR TOBIAS: Yes. They simply say the Court of Appeal applying settled principles - and there was no question that in terms of the principles applied, including the Interpretation Act and Ward v Williams, Finance Facilities, the court applied settled principle to the construction of a particular provision which has now been repealed and replaced. So that as far as this case is concerned, the only party that can benefit from a grant of special leave is this particular applicant in the sense that they would then have to go back ultimately to the District Court if the Court of Appeal's decision was overturned and the court would then have to determine as a matter of discretion whether the licence was cancelled or whether it was not.

GAUDRON J: Was cancelled or was to be cancelled?

MR TOBIAS: The licence was cancelled.

GUMMOW J: No, if it went back to the District Court.

MR TOBIAS: If it went back to the District Court, then there would be a number of issues, I suppose. One issue would be whether or not on the facts the ground was still made out and, of course, the District Court determined as a matter of fact that the ground (f) was made out and determined that ground (f) was made out even though the applicant at the time of the District Court hearing had reduced the number of clients to 300 from the original 500. So that question of fact goes. The only issue would be whether or not as a matter of discretion the court determined to cancel the licence or whether it determined not to. It can only affect this particular applicant. It can have no wider ramification, for two reasons. Firstly, because the regulation has now been changed and its construction put beyond doubt. Secondly, that as a consequence it is the new regulation that applies to all the licences that have been issued under the regulation in relation to drugs of addiction and the like.

Thirdly, so far as the provisions of similar type regulations or provisions in statutes in other States are concerned upon which the applicant relies, first of all, it is all different, although it is similar; and, secondly, if there was any difficulty perceived by those authorities as a consequence of the Court of Appeal's decision, then no doubt they would then take action to amend the regulation or legislation, as the case may be. There being no relevant principle involved, merely a question of the application of settled principle, then the issue simply comes down to whether this Court, or the judges of this Court, would have a different view of the application of those principles to this particular regulation, the old regulation, than have the three judges of the Court of Appeal. There are clearly considerations in favour of a discretionary construction and clearly considerations in favour of a mandatory construction but, in our respectful submission, first of all - - -

GAUDRON J: What are the considerations in favour of the mandatory construction really?

MR TOBIAS: They are, very simply, this - and one can really raise it this way. Let us assume that one of the grounds is that the licensee is not a fit and proper person to hold a licence. Let us assume that the ground is that how can it be in the case of the supply of drugs of addiction that where the licensee is found not to be a fit and proper person to hold a licence there could be any discretion to allow that person determined not to be fit and proper to continue to supply drugs of addiction. Let us assume they have been convicted of an offence under this legislation - same comment. The point is, as the Court of Appeal pointed out, your Honour, that their Honours took the view that given the nature of this legislation, given the protection that was required in relation to the public interests in the supply of drugs of addiction, that where these grounds were made out the Director-General had a discretion but the discretion was either to cancel or to suspend.

Justice Beazley when faced with the argument, "What happens if it is only a minor infraction of a condition or what happens if it is simply the failure to pay a renewal fee?", made it clear that where that was a matter taken up by the Director-General - and it may not be because at the beginning it is a matter for the Director-General whether he requires the licensee to show cause. So if there is a minor infraction, he may not. But let us assume he does and the matter proceeds accordingly, then the question is - and that they are then in the position to say, "Well, the licence will be suspended until you conform with the condition or the licence will be suspended until you pay the fee", which may be only a very short time. But it makes it absolutely clear to the licensee in relation to something as serious and as fraught with difficulty as the supply of a drug of addiction such as methadone that strict compliance is required and the i's are to be dotted and the t's are to be crossed.

In our respectful submission, there is one aspect where her Honour was wrong. Her Honour, if I can just take you to it - and it is referred to in paragraph 16 of our summary at pages 118 and 119 - but at page 68 of the application papers, in paragraph 73 of the judgment down below, one of the grounds upon which the Director-General could refuse to grant a licence was if - I had better take you to the actual regulation. It is on the supplementary material, page 83, clause 143 provides:

(1A) In particular, the Director-General may refuse an application if of the opinion that the applicant is not a fit and proper person to hold the licence for which the application is made.

(2) A licence may not be issued unless the Director-General is satisfied that the premises to which the application relates are appropriate for the manufacture or supply of drugs of addiction.

Those two paragraphs are mirrored in the old 149 in subparagraphs (d) and (f). That is on page 85. Her Honour held that the requirement of subclause (2) was mandatory, that is subclause (2) of clause 143, so that he must not issue unless he is satisfied that premises are appropriate, but that subclause (1A) was discretionary. We drew issue with that at paragraph 16 of our submissions upon the basis that consistent with the principle, if the Director-General was of the opinion that the applicant was not a fit and proper person, the word "may" must be read as "must". It would be defying commonsense to issue a licence to a person who has been found not to be fit and proper. So also under 149, in our respectful submission, it would be very odd, to say the least, where a person has been found not to be fit and proper to continue to hold a licence that the position should be other than its cancellation.

Now, in our respectful submission, when one looks at that, it becomes apparent that in relation to 149 it was clearly open to the judges of the Court of Appeal to find that, consistent with the application of principle in terms of the context of legislation, it was appropriate that the word "may" should be read as "must". Now, one accepts that views may differ but, in our respectful submission, that was the case. Contrary to my learned friend's submission, the judgment stands for no greater authority than that on the particular facts of this case, in terms of this particular legislation the word "may" in the former clause 149 should be read as "must". It has no wider ramification than that.

So far as the so-called crossover argument is concerned, the Court of Appeal did no more than cite that part of Justice Windeyer's judgment in Finance Facilities which simply laid down the general principles consistent with what this Court had said on the same issue in Ward v Williams. So there is no question of crossover either.

In short, your Honours, there is no question of principle involved. It is the application of settled principle to a particular provision which has now been repealed in circumstances where, whatever this Court decides, it can have no greater impact than upon this particular applicant and can have no precedental effect. In those circumstances, in our respectful submission, not only is the decision of the Court of Appeal not attended by sufficient doubt as to warrant special leave, but there is no question of general importance warranting that leave for the reasons that we have advanced. If the Court pleases.

GAUDRON J: Yes, thank you. Yes, Mr Robertson, we need not trouble you further. There will be a grant of leave in this matter.

The Court will adjourn briefly to reconstitute.

AT 2.27 PM THE MATTER WAS CONCLUDED