Theunissen v Government of Commonwealth of Australia & Anor [2004] HCATrans 197 (3 June 2004)

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Theunissen v Government of Commonwealth of Australia & Anor [2004] HCATrans 197 (3 June 2004)

Last Updated: 8 June 2004

[2004] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M52 of 2004

B e t w e e n -

TERRENCE JOHN THEUNISSEN

Plaintiff

and

THE GOVERNMENT OF THE COMMONWEALTH OF AUSTRALIA

First Defendant

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Defendant

Summonses

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 3 JUNE 2004, AT 9.30 AM

Copyright in the High Court of Australia

MR T.J. THEUNISSEN appeared in person.

MR C.J. HORAN: If the Court pleases, I appear for the respondents. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Horan, I think your summons was filed first, was it not?

MR HORAN: I believe so. There was a summons dated 7 May, I think with an applicant’s supporting affidavit. The defendants’ position is simply that the matter should be remitted in accordance with the usual orders and that costs should be reserved.

HIS HONOUR: Mr Theunissen, your summons is the summons of 10 May, is that right?

MR THEUNISSEN: That is correct, your Honour.

HIS HONOUR: I have read the papers. What is it that you would want to say this morning?

MR THEUNISSEN: Your Honour, in the first instance I believe it would be remiss of me not to apologise to the Court for any shortcomings and failings which I might have in presenting my case. My excuse must be whilst I am fairly familiar with procedures and protocols of the Magistrates Courts and the Supreme Courts in South Africa, I am not familiar with what is required in Australian courts and have not had the time to really acquaint myself with that. So I immediately apologise and plead for indulgence of the Court for accommodating any shortcomings on my part in that regard.

Your Honour, if I may proceed, I would like to deal with the less complex matters which I have brought before the Court. In the first instance there is the matter of the incorrect dates being entered in the Court’s records by the staff of the Melbourne Deputy Registrar.

HIS HONOUR: Let it be assumed for the moment that you could demonstrate that that had occurred. What consequence follows from it for the disposition of these proceedings?

MR THEUNISSEN: Yes, your Honour, I believe I have done that in my affidavit.

HIS HONOUR: Do you point to any consequence that occurs?

MR THEUNISSEN: Well, your Honour,.....change of address. If the other side should send me process to an incorrect address as the result of the Registrar having filed the incorrect address and the wrong date - - -

HIS HONOUR: That is a consequence that might have happened. If the premise for the argument was right, do you point to any consequence that has in fact happened?

MR THEUNISSEN: Fortunately not.

HIS HONOUR: Very well. Why then do I need to pass upon the question of whether the date is right or wrong?

MR THEUNISSEN: Well, your Honour, it is wrong.

HIS HONOUR: Let it be assumed that you could make that good. Why do I have to decide that?

MR THEUNISSEN: Your Honour, in point of fact if it is so important that it cannot be changed apparently, then surely it is important that it must be correct. Anyway, your Honour, if I may proceed. It would be remiss for me not to say that, despite our differences, I believe the Deputy Registrar is doing a splendid and a commendable job.

HIS HONOUR: Mr Theunissen, can I interrupt you and say this to you. Unless you can point to some consequence that has happened in respect of the question of dating the notice of change of address, for the moment I see no point in us debating whether the date is right or wrong.

MR THEUNISSEN: I agree with that, your Honour. My issue is really that if the procedure whereby documents that are handed in are not date stamped, henceforth it could create a problem for others, not only myself.

HIS HONOUR: I understand that, yes. Can we come then to the second aspect of your application which is, as I understand it, that the matter proceed undefended. Do you say that that should occur?

MR THEUNISSEN: Yes, your Honour. I believe in the first instance, no. I must deal with my reasons for hesitating that the matter be summarily automatically remitted to the Federal Court. Without this Court having first heard the – forgive me, your Honour, I am getting ahead of myself. You were asking me - - -

HIS HONOUR: You have asked in your summons for orders that the matter proceed as if it is undefended.

MR THEUNISSEN: Yes.

HIS HONOUR: Why should I make that order?

MR THEUNISSEN: Your Honour, in the first instance the defendants, I believe, have disqualified themselves from participating in these proceedings in they have failed within the time permitted to enter an appearance. I notice from the summary from the defence which I only got this morning that they are relying on a regulation whereby they could enter an appearance at any time, which then begs the question why do we have a 14-day time limit on the writ?

HIS HONOUR: There is an early decision of the Court with which I suspect you would be unfamiliar. Indeed, there are many counsel who cannot find it because of a deficiency in the way the case is indexed. It is one which I came across as a junior barrister about 20 or 25 years ago, Mr Theunissen, and this stuck in my mind, which tells you nothing good about the state of my mind, I suspect. It is a case of Wiedenhofer v The Commonwealth [1970] HCA 54; 122 CLR 172, a decision of Mr Justice Gibbs. It is a case having some similarity with the circumstances which now arise. In Wiedenhofer’s Case the defendant, the Commonwealth, had not filed its defence on time. The plaintiff in the action, Mr Wiedenhofer, applied for judgment. Mr Justice Gibbs explained at page 174 of the report that although the rules said that:

where a defendant makes default in delivering a defence the plaintiff may set down an action on motion for judgment and “shall recover the judgment to which upon the writ or statement of claim he is entitled” –

there remained a discretion in the Court to refuse to enter judgment for the plaintiff and to permit the action to proceed in the ordinary way.

The burden of his Honour’s judgment, as I understand it, is that where it is apparent that a defendant wishes to defend the action in the ordinary way, judgment should not go in favour of the plaintiff if all that is shown is that there has been a default in compliance with the time limit. If that principle is right, it would seem to follow that judgment should not go in favour of the plaintiff, you, in this case. I draw that to your attention. Is there anything you would wish to say further about this aspect of the matter?

MR THEUNISSEN: Yes, your Honour. That is in line with my own thinking because, as I have indicated to the Court in my own outline, I expect the Court would not readily have refused leave for late filing being granted to defendants in the best interests of justice and audi alteram partem as far as possible to defendants, that the Court would permit that. I have not a problem with that. But even at this late stage, your Honour, they have not filed a defence.

HIS HONOUR: No.

MR THEUNISSEN: I subscribe to what your Honour has just said, but I submit the defendants are creating a deliberate and unreasonable, unjust delay which is prejudicing the interlocutory nature of my position. It has been very clear to them that I would long ago have agreed for this matter simply to be remitted and off we go to the Federal Court if they submitted a defence. But for other reasons which I will come to later, I really believe that we should not pre-empt this Court’s prerogative and its initiative in deciding whether or not this matter should go to the Federal Court.

If I may go to that, your Honour, in the first instance the orders which I am seeking practically places this Court into a position whereby it could be said to be flirting with bypassing the very function of Parliament by itself effectively making regulations if it supports the orders I am looking for. So it might be said that the plaintiff is himself trying to use the High Court to usurp Parliament by himself effectively making regulations by way of orders out of this Court which are issued without parliamentary scrutiny.

Now, that is not my wish or my intention. What is nevertheless inescapable, your Honour – and as I contended and proved in my statement of claim – certain of the immigration regulations are unworkable if they are interpreted as they stand and are therefore invalid. What is equally inescapable as becomes really apparent from my statement of claim, the second defendant has clearly recognised these failings and has endeavoured to bring about remedies which unfortunately are unconstitutional and unlawful. What is further inescapable as also becomes apparent from the statement of claim is that these efforts by the second defendant to constitutionally and lawfully change and improve the regulations were blocked in the Senate by opposition parties for possibly purely political reasons, a difficulty which I expect will eventually be overcome.

In the meantime, your Honour, I believe the orders sought would solve the problem temporarily until such time as the Minister of Immigration can properly, constitutionally and lawfully bring about the same effect. In the meantime further, the orders which I seek if carefully analysed will be found to be practically what the second defendant itself wants and tried to bring about, as becomes obvious from its publications worldwide.

I am therefore not asking for something which the second defendant can reasonably object to or defend. In fact, I am doing the second defendant a favour by bringing this action before the Court. This, your Honour, is where my problem lies, the problem being whether or not the Federal Court indeed has the jurisdiction to, as I put it earlier, flirt with bypassing the very function of Parliament by itself effectively making regulations and that is.....able to make some of the orders which I am seeking. I have grave doubts about that, your Honour, and I feel that this Court should have been left to make a decision instead of plaintiff and defendants rushing in to having the matter remitted.

The final point I wish to make, your Honour, I have the greatest respect for the judiciary and the awesome task with which it is confronted in handling the numerous matters before it which each and every litigant undoubtedly feels to be of the greatest importance and urgency and the individual litigants probably each find it difficult to imagine there are any other cases beyond their own before the Court. In fact, your Honour, I stand in awe as to how your Honour could take in everything without confusing the facts. I do not think I could.

Therefore, your Honour, I am greatly embarrassed in nevertheless pleading with the Court that this matter be proceeded with without undue delay simply because my interlocutory situation is quite desperate to the point where, quite ironically, my ex-wife has just paid $600 into my bank account by way of a loan to prevent me from being evicted from my accommodation. Fortunately, it is a situation which is steadily being improved upon but it is taking time and the pressures to merely survive in the meantime are enormous. That basically is my case, your Honour.

HIS HONOUR: Thank you, Mr Theunissen. Yes, Mr Horan.

MR THEUNISSEN: Forgive me, your Honour, there is one issue that we have not handled. That is the issue of the interference at my service address. It is quite evident from the document of – incidentally, I have a typing error. It is not Mr Brian Brereton, it is Mr Michael Brereton. I want to refer to the annexure to his affidavit, being exhibit MJB-1. It is significant to notice there that the matter is described as being “Terrence John Theunissen –v- The Minister for Immigration and Multicultural Affairs and Anor”, which is rubbish because it is not. It is the Commonwealth Government and another, but the important point, your Honour, they make specific reference of “(YOUR REF 04040882)”, which is pretty evident that the Australian Government Attorney has been corresponding with them in connection with this matter.

I find that unreasonable and there is no lawful, reasonable or sensible reason for the Australian Government to have engaged in that
communication with Westpac, since Westpac is not a party to it. It has no interest in these proceedings other than a vague involvement whereby two of Westpac’s employees have obligingly agreed to accept service purely on a personal basis since I am one of the bank’s customers. That actually, your Honour, definitely caused me inconvenience and damages in that Westpac suddenly without reason or warning given to either me or their relevant employees terminated the agreement, the arrangement.

So I had to then drop everything, rush into town at short notice to find an alternative service address. So, your Honour, I believe that to be adequate reason and reasonable reason why the Court should order the Australian Government Attorney to henceforth desist from interfering in my service address. That, your Honour, is my case.

HIS HONOUR: Thank you. Yes, Mr Horan.

MR HORAN: Your Honour, I would adopt the submissions set out in the written outline of submissions on behalf of the defendants.

HIS HONOUR: What orders do you say I should make today?

MR HORAN: The orders contained in the summons dated 7 May, which are - - -

HIS HONOUR: That is a bare order for remitter in the ordinary terms.

MR HORAN: Yes. It is clear that the Federal Court has jurisdiction over this matter. That is not to say that issues will not arise as to whether some or all of the relief sought is within the powers of that court in the exercise of judicial power, and in particular the relief which - - -

HIS HONOUR: Do I take it that that is a question, if it were to arise, would arise were the matter to remain in this Court?

MR HORAN: Yes. It would simply be a matter of whether that relief would be an exercise of judicial power.

HIS HONOUR: That is, do I understand you to say that if there is a point to be made, it is a point that would arise here or there and remitter will not affect whether it arises?

MR HORAN: Yes, your Honour. In relation to the jurisdiction of the Federal Court, it would have jurisdiction as a matter arising under a law made by the Parliament, given that the essence of the action is a challenge to the validity of certain regulations made under the Migration Act. The relevant section of the Judiciary Act is section 39B(1A)(c).

HIS HONOUR: As a matter arising under a law made by the Parliament, being the question of power to make the delegated legislation in question - - -

MR HORAN: Yes, your Honour. Although it is not completely clear from the pleading, there might be some aspects which arise under or involve the interpretation of the Constitution. If that is the case, then they will ultimately require notices under section 78B to be given, but the focus of the action appears to be a challenge to the regulations on non-constitutional grounds as far as I can tell from the statement of claim.

HIS HONOUR: But if there is a constitutional question, the Federal Court would have jurisdiction under 39B(1A)(b).

MR HORAN: Yes, your Honour. There are related proceedings challenging the decision of the Migration Review Tribunal which have been commenced in the Federal Court and are currently pending before that court and that is a further reason why these proceedings, the claims in which have been adopted in the Federal Court proceeding, are most conveniently dealt with by the Federal Court. The point in relation to whether a defence should have been filed or should be filed before remittal, in my submission, it is more efficient for those matters to be addressed by the Federal Court. There may be pleading issues which could arise in connection with the filing of any defence and they may arise before the defendants file a defence in terms of applications that might be made for further particulars or for certain parts of the statement of claim to be struck out and so on.

I am not in a position to indicate whether or what applications will be made but they are all issues, and the timetable which might flow from that, which are appropriately addressed on a directions hearing in the Federal Court. I note that if this action had been commenced in the Federal Court initially that a directions hearing would have been held before a defence was required to be filed by the defendants.

The final issue in relation to the service arrangements, I do not propose to say any more than simply note that the reference that appears on the letter from the Westpac Bank comes from the letter sent by AGS by way of service on the bank as the then nominated address for service for the plaintiff. There is, on my instructions, no other correspondence between my instructors and the bank other than to attempt to serve the documents and to be told that the bank was not in a position to accept service then or in the future. If the Court pleases.

HIS HONOUR: Yes, Mr Theunissen. Is there anything you wish to say in reply to what has been said?

MR THEUNISSEN: Your Honour, essentially I fail to understand why a defence should be so long in forthcoming. If they are going to have to file a defence in the Federal Court, why cannot they file one here? They could have done it in the most basic of terms and elaborated upon it as further particulars, but they are deliberately dragging the matter out, your Honour, and it is prejudicing my interlocutory position.

The other issue is, your Honour, only two documents were ever served on Westpac. The first one was not even opened. I became aware of it before the individual who had accepted service could even know what it contained, so she would therefore not have had the details of the case. There was no reference number to it, nothing. The second document was when – the first manager was a relieving manager. When the permanent manager returned, that was when the second document arrived. That was the summons which was taken out on the 7^th. She phoned me on my mobile and she only opened the envelope briefly in order to see what it contained. That was it.

They were both very surprised when I went back to them, having got this abrupt approach from the Westpac officials telling me they had terminated the agreement. I went back to them and I said, “Well, what’s happened?” We had a very good relationship. There was no objection. They were really co-operative. They were as astonished as I was. So therefore there is no way that the attorney of the Westpac could even have known about this matter. Nothing could have been served on him unless there was other correspondence behind the scenes. That is what I am objecting to because that is what caused the problem. Thank you, your Honour.

HIS HONOUR: On 23 March 2004 the plaintiff caused to be issued a writ of summons naming the Government of the Commonwealth of Australia and the Minister of Immigration, Multicultural and Indigenous Affairs as defendants. The relief that the plaintiff sought which was identified on the endorsement on the writ was an order “declaring the ‘Domestic Violence Provisions’ of the Migration Act to be invalid; and that Plaintiff should be granted the applied for visa.” The writ gave his address for service as his home at Springvale (a place more than 3 miles from the office of the Registry). (See Order 4 rule 2)

Subsequently the plaintiff filed an amendment to the writ in reliance upon Order 29 rule 2(a) in which he gave as his address for service “c/o The Manager, Legal Referral Service, Law Institute Victoria, 470 Bourke St, Melbourne 3000”. By that amendment he amended a claim that he sought to make by his writ and amended the relief to read:

A. Whereby the regulations comprising what are known as the “Domestic Violence Provisions” of the Migration Act are declared to be unworkable and invalid;

B. Declaring how the various regulations comprising these “Domestic Violence Provisions” should be interpreted in order to cause them to become workable and valid;

C. That Plaintiff, having in good faith, complied as best one is able to comply with these flawed regulations amidst the confusion created by 2^nd defendant, should be granted a Class BC Partner (Migrant) subclass 100 Spouse visa (“permanent spouse visa”).

On 16 April 2004 the plaintiff filed a statement of claim in which again he modified the relief which he would seek in his action. That statement of claim, extending as it does to 52 pages, is an elaborate description of the claims which he would seek to make. That statement of claim is endorsed with an address for service of “c/o The Manager Westpac (Bank of Melbourne), 277 William St, Melbourne VIC 3000”. Exactly when the plaintiff filed a notice of change of address for service is a matter which the plaintiff would seek to put in controversy. The notice of change is stamped with a Registry stamp bearing date 26 March 2004. The plaintiff says that the document was not filed on that date. It will be necessary to return to that subject.

On 19 April 2004 the defendants entered their appearance and on 7 May 2004 filed a summons seeking orders remitting the proceeding to the Federal Court of Australia. On 10 May 2004 the plaintiff filed a cross-summons seeking orders, among others, that the action proceed as undefended, that the purported summons taken out by the solicitor for the defendants on 7 May is invalid, that the proceedings be heard and determined without delay and that:

The Court having decided that the Federal Court has jurisdiction to not only hear this matter but make the Orders sought therein in this Court, further proceedings in this action be remitted to the Federal Court of Australia –

The plaintiff filed an extensive affidavit in support of that summons. The affidavit reveals that he seeks an order that the action proceed as undefended on the basis that the time at which appearance was entered was after the time fixed by the rules and that the time for delivering a defence has expired.

It is convenient to deal at once with this aspect of what is alleged to be a failure to comply with the rules as to the times by which the steps of appearance and filing of defence are to be taken. So far as any default in filing appearance within time is concerned, the fact is that appearance has been filed and the matter therefore proceeds on that basis. So far as it is said that there has been default in delivering a defence, Order 28 rule 11 of the High Court Rules provides that:

Where, in an action not being an action mentioned in the preceding rules of this Order, the defendant is bound to deliver a defence and makes default in delivering it, the plaintiff may set down the action on motion for judgment, and shall recover the judgment to which, upon the writ or statement of claim, he is entitled.

In Wiedenhofer v The Commonwealth [1970] HCA 54; (1970) 122 CLR 172 Mr Justice Gibbs pointed out at page 174 that:

Although O. 28 r. 11 provides that where a defendant makes default in delivering a defence the plaintiff may set down an action on motion for judgment and “shall recover the judgment to which upon the writ or statement of claim he is entitled”, it has been held in decisions given on rules in similar terms that the Court has a discretion to refuse to make the order asked for...

The plaintiff is not entitled as of right to the judgment to which, upon the writ or statement of claim, he is entitled on demonstrating no more than that the defendant is in default in delivering a defence.

In the present matter there are two considerations which together require the conclusion that if the application made by the plaintiff by his summons filed on 10 May is for relief of the kind described in Order 28 rule 11, it should not now be granted. First, before the plaintiff filed his summons seeking an order that the action proceed as undefended, the defendants had filed a summons seeking orders remitting the proceeding to the Federal Court of Australia. Although it may be suggested that the filing of the summons did not effect any stay of the proceedings, it would not be right now to order that the defendants be placed in the position of not having defended the action when, by filing their summons of 7 May, it was evident that they sought to contest the claims which the plaintiff made.

The plaintiff points to the fact that even now the defendants have not yet filed a defence. He points further to the fact that the defendants have filed no material which would disclose a reason for not doing so. The fact is, however, that the defendants sought to have the matter remitted to the Federal Court and it was only the press of other business that has precluded that application coming on for hearing before a single Justice sooner than it has today. Given further that if the matter is remitted to the Federal Court the ordinary practice of that court is to hold a directions hearing before requiring delivery of a defence, there is in my view no sufficient reason to conclude that the plaintiff should have the relief which he now seeks.

The second consideration to which I refer in this connection is that the claim which the plaintiff makes is not one which affects only the parties to the proceeding. He claims that certain provisions of the federal legislative scheme regulating migration are invalid. At least the chief burden of that contention appears to be that the relevant regulations are beyond the powers given by the Act, but it may be that either within that contention or underlying it lies some question about constitutional power. However the matter is put, the allegation that the regulations are in this respect invalid is a matter of public interest, not merely private concern as between the immediate parties to the proceeding. For these reasons it would be wrong to permit the plaintiff now to have judgment or to bar the defendants from defending the proceeding in the ordinary way.

Given that both parties seek orders that the proceeding be remitted to the Federal Court of Australia, it might be thought that the only remaining step today was to make an order for remitter. It is necessary, however, to notice that the plaintiff seeks an order for remitter only upon the Court having first decided that the Federal Court has jurisdiction not only to hear the matter but to make the orders which are sought in his proceeding. To undertake that task would require a close examination not only of the statement of claim filed by the plaintiff but also would require the hearing of full argument upon the issues which the plaintiff seeks to agitate.

It has often been pointed out that the work of this Court as the final court of appeal for Australia and the ultimate court dealing with questions of constitutional construction and the like preclude it from dealing with matters at first instance. It is for that reason that it would be inappropriate for me to embark upon the kind of inquiry which the plaintiff contends I should undertake before remitting the proceedings to the Federal Court.

Finally, it is necessary to return to this question which the plaintiff seeks to put in controversy about the time at which he filed his first notice of change of address for service. He contends that he should have some form of order, presumably directed to the Registrar and Deputy Registrars of the Court, requiring compliance with the rules. No such order is necessary or appropriate. It is not necessary because the rules take effect according to their terms. It is not appropriate because, even if as the plaintiff contends it could be shown that there was some error in identifying the date upon which this particular document was filed in the Court, nothing now turns on that fact. It may readily be accepted that the affixing of a proper date to documents filed in the Registry is important. It is unnecessary to decide whether that was done in this case. As I say, nothing is said to turn on the particular date on which this document was filed.

It may also be noted that the plaintiff has yet again changed his address for service. There is evidence which would suggest that his nomination of a branch of Westpac Bank as his address for service was made without the consent of Westpac. There is no basis revealed in the evidence for the suspicion which the plaintiff harbours and advanced in this Court that that unwillingness somehow came about as the result of some approach by the solicitors for the defendants.

Whatever the circumstances in which Westpac came to indicate that it was unwilling to act as the plaintiff’s nominated address for service, he has since specified as his address for service an address care of the manager of a restaurant or café in Queen Street, Melbourne. I express no opinion upon whether that is a proper address for service. It is enough to say, however, that if adverse consequences befall the plaintiff because documents regularly served at the address which he nominates as his address for service are not passed on to him in a timely way, that is a matter which would ordinarily be expected to fall at his feet, not the feet of an opposite party. Those are matters which do not fall for determination this morning.

There will be orders remitting the proceeding to the Federal Court of Australia in the ordinary terms. The costs of both applications will be costs in the proceeding. The plaintiff’s applications by summons save so far as he seeks orders for remitter will stand dismissed. I will certify for the attendance of counsel. Accordingly, the orders will take the following form:

1. Order remitting proceeding to Federal Court of Australia in accordance with usual terms;

2. Otherwise dismiss plaintiff’s summons filed 10 May 2004;

3. Costs of that summons and defendants’ summons of 7 May 2004 be costs in the proceeding;

4. Certify for the attendance of counsel.

MR HORAN: Your Honour, there were two summonses filed by the plaintiff, so if the orders could reflect that one of the plaintiff’s summonses was filed 17 May 2004. That was the one seeking to raise the issue of interference with the service address.

HIS HONOUR: I will restate the orders in a moment. The orders then I think will read as follows:

1. Order remitting proceeding to Federal Court of Australia in accordance with usual terms;

2. Otherwise dismiss plaintiff’s summons filed 10 May 2004;

3. Dismiss plaintiff’s summons filed 17 May 2004;

4. Costs of both plaintiff’s summonses and the defendants’ summons of 7 May 2004 to be costs in the proceeding;

5. Certify for the attendance of counsel.

Adjourn the Court.

AT 10.16 AM THE MATTER WAS CONCLUDED