Goldie & Anor, Ex parte - Re MIMA & Anor; Goldie v MIMA [2004] HCATrans 165 (24 May 2004)

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Goldie & Anor, Ex parte - Re MIMA & Anor; Goldie v MIMA [2004] HCATrans 165 (24 May 2004)

Last Updated: 17 June 2004

[2004] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P1 of 2001

In the matter of -

An application for Writs of Certiorari and Mandamus and Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

JAMIE McCORMACK

Second Respondent

Ex parte –

BRIAN GERALD JAMES GOLDIE

First Prosecutor

VALERIE MARGRET FINNIS

Second Prosecutor

Office of the Registry
Perth No P22 of 2001

In the matter of -

An application for Writs of Certiorari and Mandamus and Prohibition against THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

JEFFREY PAUL TUNBRIDGE

Second Respondent

Ex parte –

BRIAN GERALD JAMES GOLDIE

Applicant/Prosecutor

Office of the Registry
Perth No P47 of 2001

B e t w e e n -

BRIAN GERALD JAMES GOLDIE

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 24 MAY 2004, AT 2.12 PM

(Continued from 19/4/04)

Copyright in the High Court of Australia

__________________

HIS HONOUR: Yes, Mr Burmester.

MR BURMESTER: Yes, your Honour. Since last time we have filed an affidavit of David George Riggs affirmed 17 May 2004. Your Honour has that?

HIS HONOUR: I have that. There are also some supplementary submissions.

MR BURMESTER: Some supplementary submissions, yes, your Honour.

HIS HONOUR: Which are very helpful. Now, is there anything you wish to say?

MR BURMESTER: Your Honour, maybe I should just briefly, in relation to the affidavit, indicate that, in our submission, it establishes that the Australian Government Solicitor as established on 1 September 1999 became a separate corporate body quite different in character from what had previously existed and with its own independent financial management responsibilities and operating quite separately from the public service and the ordinary department of state structure.

It shows that the AGS operates on a commercial basis. That affidavit also indicates the practice in relation to briefing of counsel within the Australian Government Solicitor at paragraphs 30 and onwards. It exhibits to that affidavit the Legal Services Directions and in those directions there is reference to briefing of counsel. It is in paragraph 6 on page 5 of the Legal Services Directions, which then refers you to - - -

HIS HONOUR: Paragraph 6.1?

MR BURMESTER: Paragraph 6.1:

Counsel are to be engaged by or on behalf of a FMA agency –

which includes Commonwealth departments –

in accordance with the Directions on Engagement of Counsel, at Appendix D.

If one turns over then to page 20, one sees the directions to counsel and it is made clear that these directions apply to in-house counsel engaged in the same way as if private counsel had been engaged.

HIS HONOUR: Yes. How is that made clear in appendix D, that last point you mentioned?

MR BURMESTER: The last sentence in paragraph 3:

The policy applies to lawyers who, although not from the bar, are briefed as counsel in lieu of a private barrister to conduct or advise on litigation for the Commonwealth or its agencies.

HIS HONOUR: Yes, I see. Thank you.

MR BURMESTER: Your Honour, I think otherwise the affidavit is largely self-explanatory. It does go through the provisions of the Judiciary Act and the way in which AGS handles its finances and so on.

HIS HONOUR: Yes, I see that.

MR BURMESTER: I would not propose to elaborate on it at this stage. Now, your Honour, in relation to the supplementary submissions, they sought to address some of the issues raised with me on the last occasion I appeared before your Honour. In particular, I draw your Honour’s attention to the attachment, Attachment A, which is an attempt to indicate the rules that apply in relation to briefing of in-house counsel, if I can use that term, in other Australian courts.

One sees set out there provisions from the Federal Court Rules and then the various Supreme Court Rules. I have briefly summarised the effect of those various provisions in the supplementary submissions back in paragraph 7 of those submissions. There is no equivalent in any of those Rules of the High Court Rule Order 71 rule 93 with which we are concerned in the present case.

HIS HONOUR: Yes.

MR BURMESTER: Now, your Honour, those written submissions contend that there is, in terms of history, two mischiefs that these sorts of rules - - -

HIS HONOUR: Yes, I see what you have said about that.

MR BURMESTER: - - - were concerned to deal with. In our submission, they are not insurmountable. The question essentially is, is there a prohibition in the Rules? There is no reason in principle why those historical mischiefs would otherwise be a bar, so one comes down to the application of the particular Rules to this particular set of circumstances.

I have in those submissions also dealt with the Judiciary Act section 64 and its possible application in this matter. We accept that it is, in a sense, the basis on which the Commonwealth Minister is entitled to his costs and entitled to be treated in the same way as in a suit between two private litigants. There are some interesting issues as to how section 64 would operate in this particular case. Those issues can be conveniently avoided if one decides that AGS is not the Commonwealth, because then one justifies the rule without that special provision for the Commonwealth. For the reasons we have already articulated at some length, we say AGS is not the Commonwealth.

HIS HONOUR: Yes.

MR BURMESTER: So, your Honour, what I propose to do is start with the reference in the rule to “firm of practitioners” and whether that could have any potential application to the Commonwealth.

HIS HONOUR: Now, Order 71 rule 89 was one basis of this present application to a Justice. Was there another rule in Order 71 that you referred to? There was a more general one, was there not?

MR BURMESTER: I thought, your Honour, there was an earlier rule – rule 22.

HIS HONOUR: Yes, thank you.

MR BURMESTER: So, your Honour, if I could go to rule 93, which talks about:

A counsel’s fee shall not in any case be allowed to a practitioner who is a paid clerk of, or is in receipt of a salary from, a practitioner or firm of practitioners –

It is our submission that the Australian Government Solicitor cannot properly be regarded as falling within those words. The expression “firm of practitioners” has a well-established meaning as meaning partners or associates practising together. The term used is “practitioner or firm of practitioners”. It does not say “legal practice”, which might be understood to have a perhaps broader meaning.

At the time these Rules were made back in 1952 then it is our submission that “firm of practitioner” clearly did not include and could not have included an incorporated legal practice. Now, there are incorporated legal practices today, not just AGS, but under some of the State Legal Practice Rules, and we would submit that rule 93 cannot be interpreted as applicable in the case of incorporated legal practice.

HIS HONOUR: Now, that word “practitioner”, does that pick up the notion of the role of the High Court from the Judiciary Act?

MR BURMESTER: Your Honour, individuals are practitioners.

HIS HONOUR: Yes, I understand that.

MR BURMESTER: So I am a practitioner registered on the roll, as would other AGS lawyers be, but it would seem, again, difficult to say that the body corporate, the AGS, is itself a practitioner. Rather, the CEO and the employees of AGS are practitioners, but it seems, in my submission, hard to characterise AGS itself as a practitioner.

HIS HONOUR: Section 55C, that is what I was thinking of.

MR BURMESTER: Yes, your Honour. Certainly AGS as a body corporate is not registered as a practitioner.

HIS HONOUR: Is not?

MR BURMESTER: Is not, no. It is the individual lawyers who are registered.

HIS HONOUR: And you say it is not the Commonwealth and it is not the State.

MR BURMESTER: That is right.

HIS HONOUR: So it does not have any work to do.

MR BURMESTER: It does not have any work to do. This is not a term where scientific or technological developments just mean you read it to have the new meaning. In our submission, it clearly had an understood meaning at the time and that is the meaning it continues to have. It is, in a sense, reinforced by the next rule which refers to partners with no reference to any other situation. So the assumption was that when one is talking about a firm of practitioners, we are talking about a sole practitioner or partners in a partnership.

HIS HONOUR: Yes. Now, rule 93 is a negative. Where is the positive for allowing the fee?

MR BURMESTER: Well, your Honour, there are two principal rules, rule 74 and rule 76.

HIS HONOUR: Yes.

MR BURMESTER: As one of our alternative arguments we say even if a counsel’s fee is not permitted under rule 93 there is no prohibition on allowing some form of recognition of the work done, the necessity for a Minister to have counsel appearing for him.

HIS HONOUR: Yes. I mean rules 74 and 76 are, in a way, the starting point. Then the question is does 93 qualify it?

MR BURMESTER: That is correct, your Honour, and I think the Registrar on the initial review took the view that rule 93 was an absolute bar to any allowance of fees for this particular type of work, whether it is counsel’s fees or in any other form.

HIS HONOUR: Yes, I understand.

MR BURMESTER: Now, your Honour, I do not know whether you wish to hear me further on whether AGS is the Commonwealth or not. I will leave that to section 64, I think. I have set that out in the written submissions.

HIS HONOUR: No, I think that is sufficiently set out, thank you.

MR BURMESTER: If, despite my submissions, your Honour was inclined to think that rule 73 did act as a bar to AGS recovering, then it does raise the issue whether that rule is in some way inconsistent with other provisions in the Judiciary Act and, in particular, sections 55P and 55 - - -

HIS HONOUR: You mean 93.

MR BURMESTER: Sorry, your Honour, 93 is inconsistent with sections 55P or 55Q. The rules, of course, are made under the general provision, section 86 in the Judiciary Act, which is just a general power of the High Court Justices to make rules.

HIS HONOUR: Yes. It says – just a minute - - -

MR BURMESTER: So it is power to:

make Rules of Court necessary or convenient to be made for carrying into effect the provisions of this Act or so much of the provisions of any other Act –

and then it refers to a number of specific matters, including in (e):

Prescribing and regulating the fees to be charged by practitioners practising in the High Court for the work done by them in relation to proceedings in the Court and for the taxation of their bills of costs - - -

HIS HONOUR: There is that word “practitioner”.

MR BURMESTER: Again, that is right, your Honour, that word “practitioner”. So there is that provision. If one then goes to sections 55P and 55Q, you will see 55P is an express provision for AGS to charge fees:

(a) in relation to services provided by it . . .

(2) If the AGS has charged a client an amount under subsection (1), the amount may be recovered by the client as costs incurred by the client.

Now, in my original submissions I gave you a reference to the explanatory memorandum that accompanied the insertion of that section into the Judiciary Act and in paragraph 17 of the original submissions, the explanatory memorandum made clear that the intention was AGS may recover costs in the same way as a private legal practitioner, subject to the usual rules and principles relating to costs.

So, your Honour, it is not my contention that 55P(2) means that AGS could charge some exorbitant sum and still expect to recover, so we acknowledge it is subject to the ordinary rules as to costs, but we would contend that a rule that acted as a complete prohibition on recovery of costs for a particular category of work provided by AGS would be inconsistent or incompatible with this express authorisation in 55P.

HIS HONOUR: Yes, thank you.

MR BURMESTER: Then 55Q(1)(b) gives AGS lawyers the right to appear:

to practise as a barrister, solicitor, or barrister and solicitor . . .
(c) to all the rights and privileges of so practising –

and it would be our contention that, again, to deny an AGS lawyer appearing in the capacity of barrister in this Court from being able to recover, or his client being able to recover for any fee incurred for that appearance, would be again to deny that AGS lawyer the rights and privileges of practising.

Now, your Honour, it is always difficult to find that a provision authorised by one section is incompatible with a specific provision in another, but the cases suggest that one does have to look for an actual contrariety, if I can put it that way, but we would submit that that is, in fact, what one has here if rule 93 acts in the way found by the Registrar, then it would, in fact, directly contradict the specific positive authorisations given by those sections in the Judiciary Act.

If your Honour wanted references to further consideration of reconciling particular provisions, the case of Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 is probably a very useful authority. There is a discussion there in Justice Fullagar’s dissenting judgment, about 275 and following, and he refers to Williams v Hursey, which seems to be almost on point where there was a subordinate instrument such as a rule of court. In that case, it was a court order in a later Act. On the facts of that case they said there was no contrariety, they could stand together, but we would submit that when one looks at 55P and 55Q and puts them alongside rule 93 there is not such an ability.

HIS HONOUR: Yes. In a way 55P and 55Q would be a later subtraction from what otherwise might be the general reach of 86.

MR BURMESTER: Yes, your Honour.

HIS HONOUR: And, in that sense, an extraction from what was permitted.

MR BURMESTER: That is right, and while the rule before these sections came along may well be valid and valid for others in relation to its application to AGS, that is right, it is, in a sense, an extraction which, I think, is rather the way my original submissions put it.

HIS HONOUR: Yes, that is right. All right, is there anything else?

MR BURMESTER: Your Honour, I have mentioned that if, despite all that, rule 93 was still seen as a barrier, we would submit that there must still be a basis on which recognition of the word “done” could be given, as it were, on a quantum meruit under one of those general rules I referred your Honour to.

HIS HONOUR: Yes.

MR BURMESTER: We would not see that as a direct barrier that could not be overcome. In relation to the form of relief, in paragraph 19 of our original submissions we have set out the form of an order.

HIS HONOUR: Yes, let me just look at them.

MR BURMESTER: Your Honour, on reflection we would perhaps suggest some change to the form of that order.

HIS HONOUR: We can read that on to the transcript if you like.

MR BURMESTER: Right. The alternative I am suggesting is based on the order given in Guss v Veenhuizen (No 2) [1976] HCA 57; (1976) 136 CLR 47 and we would suggest that order 3 as originally set out in the submissions should be reworded to declare that the respondent Minister is entitled to recover from the applicant counsel’s fees for Mr Macliver and direct the taxation officer to complete the taxation accordingly, so rather than a simple remittal back to the taxing officer, a direction.

HIS HONOUR: Yes, that sounds much better.

MR BURMESTER: But, your Honour, unless I can otherwise assist, they are my submissions.

HIS HONOUR: Yes, well thank you very much, Mr Burmester. I think I had better consider my decision and give you some written reasons so I will consider my decision and now adjourn.

AT 2.33 PM THE MATTERS WERE ADJOURNED