Baker v Commonwealth of Australia; Burk v Commonwealth of Australia [2004] HCATrans 156 (11 May 2004)

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Baker v Commonwealth of Australia; Burk v Commonwealth of Australia [2004] HCATrans 156 (11 May 2004)

Last Updated: 13 May 2004

[2004] HCATrans 156

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M199 of 2002

B e t w e e n -

RICHARD JAMES BAKER

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Office of the Registry
Melbourne No M200 of 2002

B e t w e e n -

RODNEY ARTHUR BURK

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Applications for removal

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 11 MAY 2004, AT 9.32 AM

Copyright in the High Court of Australia

__________________

MR G.F. LITTLE, SC: May it please your Honour, I appear for both the applicants. (instructed by Hollows Lawyers)

MR A.J.M. MOULDS: May it please your Honour, I appear for both the respondents. (instructed by Australian Government Solicitor)

HIS HONOUR: Is it convenient to hear the two matters together?

MR MOULDS: Yes, your Honour.

HIS HONOUR: Yes, Mr Little.

MR LITTLE: Thank you, your Honour. This is in the nature of tidying up these matters which have been before your Honour on at least one occasion, when they were put in a way that they could march in step with the case of Blunden, which was ultimately determined. That determination in Blunden has determined the issues that arise in these two cases, so it seems the appropriate application is for these applications, not having any utility now, to be dismissed. I understand there is no objection to that course by the Commonwealth.

The second matter that arises is the costs of these applications. We say that the applicants are at least entitled to have an order that the costs of the applicants in these cases be costs in the cause. We say that for the reason that the Commonwealth wishing to ventilate the choice of law issue in Blunden by way of a case stated, it had the control of those proceedings. It left the litigants in these two present cases in the position where they had a judgment or a decision disadvantageous to their interests and no proper means of reviewing that decision until Blunden was decided.

HIS HONOUR: Sorry, I do not follow that.

MR LITTLE: The applicants in the present cases applied for leave to appeal to the Victorian Court of Appeal. That court was aware of the fact that the very issue that was going to that court was coming to this Court in Blunden. The only question was when. It seemed inappropriate to embark on a full hearing of that issue in these two cases before the Victorian Court of Appeal.

HIS HONOUR: Assume that to be so, what follows from it?

MR LITTLE: It follows that their proceedings were utterly and absolutely stalled until such time as the judgment was given in Blunden or this Court had pronounced on the law in some other case.

HIS HONOUR: I understand that, but what, again, follows from that for the disposition of costs of the applications for removal?

MR LITTLE: Well, it was necessary to bring these applications to this Court to get the matter of Blunden kicked into action, to determine the issues that would have had to have been determined in this case had they not been determined in Blunden. The result of Blunden is that these issues that were sought to be removed into this Court were resolved in favour of the present applicants in these cases. So we say that the costs that were incurred should necessarily follow the event, and that is that they have succeeded in their arguments, albeit without the necessity for a final hearing of their application. Thank you.

HIS HONOUR: Yes, Mr Moulds.

MR MOULDS: Your Honour, the applicants initiated both these applications without prompting or agreement by the respondent. Neither of the applications resulted in removal, and your Honour will have had, I hope, an opportunity to have a look at some of the transcript in respect of the application in that regard. Finally, your Honour, we say that on any view, regardless of these applications, they were going to be bound by Blunden in
any event. So that once it was well and truly on its way to this Court, there was no need to at least maintain these applications.

HIS HONOUR: What do you say I should do then?

MR MOULDS: Just leave the costs where they are, your Honour.

HIS HONOUR: Make no order?

MR MOULDS: Make no order. If your Honour pleases.

HIS HONOUR: Well, Mr Little?

MR LITTLE: To say that the application in Blunden was on its way – it was not on its way in this Court until the day before these applications were before your Honour in Melbourne. The application for a stated case was filed, apparently, in Canberra on 15 December, these matters being before your Honour on 16 December here. It is clear, in our submission, that the Commonwealth’s conduct was directed towards imposing the Australian Capital Territory legislation on all outstanding cases – or at least the Victorian cases – and that these present applications were what provoked the actual filing of the stated case in Blunden. Otherwise, we may still be waiting, in our submission, for a determination of the issue.

Mr Baker was in a parlous state of health and ultimately had his evidence taken de bene esse, because of fears that he may become incapable of giving evidence before his case was disposed of. There was a degree of urgency for the resolution of these matters and the Commonwealth had an interest in an overall judgment, whereas these parties had only interests in their own particular cases.

Apart from that, your Honour, I do not think I can say anything more. The matter to which I refer appears in the transcript of the hearing before your Honour of 16 December 2002, at the top of page 6 of that transcript. As your Honour may or may not recall, your Honour did express some surprise on that occasion that the Canberra file of Blunden had not been able to be before your Honour because the Commonwealth had objected to it being here with the other two cases.

HIS HONOUR: Yes, thank you, Mr Little.

Each of these matters is a matter arising out of the collision between HMAS Melbourne and HMAS Voyager, which occurred as long ago as February 1964. In November 2002, each of the applicants filed an application in this Court pursuant to section 40 of the Judiciary Act 1903 (Cth) for an order removing part of the cause then said to be pending in the Supreme Court of Victoria. The cause sought to be removed was in each case part of the cause constituted by an action for damages for personal injuries allegedly suffered by the applicant as a result of the collision to which I have referred or an appellate proceeding arising out of that action.

Before each application for removal was filed in this Court, a single judge of the Supreme Court of Victoria had concluded that the claims brought by the applicant plaintiffs were statute-barred. Each applicant had filed application for leave to appeal to the Court of Appeal of Victoria, but that application for leave to appeal was not determined until after the filing of the application for removal.

The activity in these actions takes place against a background of other actions instituted elsewhere in the Commonwealth by those who had been serving on board HMAS Melbourne at the time of the collision with HMAS Voyager. In particular, the applications made in these matters were made against the background of an action instituted by Mr Blunden in the Supreme Court of the Australian Capital Territory. In the action instituted by Mr Blunden, there had been agitated a question what, if any, limitation provision applied in relation to the action brought. That question had been decided at first instance; it had gone on appeal to the Full Court of the Federal Court of Australia. That court had given its judgment in November 2000, and from those orders application for special leave to appeal to this Court had been instituted. On that application for special leave to appeal first coming on for hearing in October 2001, it was pointed out to the parties that the orders made in the Full Court of the Federal Court of Australia appeared to be deficient in an important respect.

Ultimately, the litigation instituted by Mr Blunden gave rise to a case stated in this Court, which was determined in December 2003 in Blunden v The Commonwealth (2003) 78 ALJR 236; 203 ALR 189. It is common ground between the parties today that the decision of the Court in Blunden makes it unnecessary to prosecute the applicants’ applications for orders of removal. The only dispute between the parties is what order should be made as to the costs of the applications for orders of removal.

The applicants contend that they should either have their costs of those applications or that those costs should be made costs in the proceedings which it was sought to remove into this Court. The applicants point in that regard to what they contend to be some delays on the part of the Commonwealth in the prosecution of the various proceedings taken in relation to Mr Blunden’s action, which ultimately led to the resolution of the point of law which it was sought to agitate in this Court by removing part of the causes pending in the Supreme Court of Victoria. The respondent contends that no order for removal now being necessary or appropriate, the appropriate disposition of costs is that there be no order made as to costs; they should lie where they fall.

It is, I think, unprofitable to spend time examining whether the proceedings in Blunden may have been prosecuted more expeditiously than they were. For present purposes, what is significant is that the applications for removal have been overtaken by the decision in Blunden. Whether, as the applicants contend, the institution of the applications for removal may have acted as a spur to the Commonwealth prosecuting the proceedings in Blunden may be open to debate. It is a debate which I do not think it is profitable to attempt to resolve.

In the end, the point comes to this. Applications for removal have been made. They have been overtaken by events. That being so, I think the better course is to make no order as to the costs of the applications for removal, leaving the costs to lie where they fall. Accordingly, the only orders that will be made in each of the two applications is:

1. Application dismissed;

2. I certify for the attendance of counsel.

As is implicit in what is said earlier, there will be no order as to costs.

AT 9.49 AM THE MATTERS WERE CONCLUDED