He v Envelopments Pty Ltd & Ors [2005] HCATrans 1049 (16 December 2005)

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He v Envelopments Pty Ltd & Ors [2005] HCATrans 1049 (16 December 2005)

Last Updated: 7 July 2006

[2005] HCATrans 1049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M140 of 2004

B e t w e e n -

DAMING HE

Applicant

and

THE HONOURABLE COMMISSIONER LEWIN, THE HONOURABLE SENIOR DEPUTY PRESIDENT POLITES, THE HONOURABLE DEPUTY PRESIDENT HAMILTON AND THE HONOURABLE COMMISSIONER LARKIN AS MEMBERS OF A FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondents

ENVELOPMENTS PTY LTD

Second Respondent

Office of the Registry
Melbourne No M27 of 2005

B e t w e e n -

DAMING HE

Applicant

and

ENVELOPMENTS PTY LTD

First Respondent

FERGUS RAMSAY

Second Respondent

TAMAS HUME

Third Respondent

JOHN WILSON

Fourth Respondent

Applications for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 DECEMBER 2005, AT 12.26 PM

Copyright in the High Court of Australia

MR D. HE appeared in person.

HEYDON J: You are Mr He?

MR HE: Yes, your Honour.

HEYDON J: You know that you have 20 minutes to present your oral arguments in relation to your applications?

MR HE: Yes, your Honour.

HEYDON J: What do you want to add to what you have already told us in writing?

MR HE: Your Honours, there are four special leave issues that arise by this case. There is what is the proper approach – the first one is what is the proper approach to the construction of section 78B of the Judiciary Act 1903 when there is a claim under Victorian law, was struck out by the Victoria Civil and Administrative Tribunal as required by the respondent, namely, according to Commonwealth law which prevails over the State law by virtue of section 109 of the Constitution.

I say that a grant of special leave and a notice to the Attorney-General are appropriate on this issue for three main reasons. First, because of the judicial difference in applying section 78B when a matter arise under the Constitution is disputed. The law does require clarification. Secondly, the clarification of the law in this matter is of public and general interest because of the right able to exercise under the Victorian legislation, the right that flow from the State and the Territories legislation affect all in Australia, not just Victoria or just employees. Thirdly, I say there were errors in the honourable court below which have brought to bear a substantial injustice on me.

I like to draw your Honours’ attention on the first of my propositions which is that the operation of section 78B of the Judiciary Act 1903 need clarification. I wish to refer your Honours to the decision of his Honour Justice French in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292 at 296. His Honour refer to his Honour President Justice Kirby’s decision in State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 66 ALR 129 at 140:

It is ‘the duty of the court not to proceed’. Thus, it is not for the parties to determine the matter by their agreement. The court’s duty arises because of its obligation to protect the interests of the partners in the polity of the Commonwealth.

His Honour further stated:

As his Honour went on to observe, the emphatic language of the section and the strictly limited exceptions to the duty it imposes on the Court, stress the importance attached by Parliament to the proper fulfilment of the duty of notification which should not be narrowly confined.

I refer to this case in my oral and written submission to her Honour Justice Williams and in my affidavit to the Court of Appeal. The respondent also refer to his Honour Justice French’s judgment. However, her Honour and the honourable Court of Appeal did not mention it in the decision. By virtue of this fact I was denied natural justice apparently to the effect their Honours conceded that their Honours’ approach to section78B was different with the honourable Justice French and the honourable President Justice Kirby’s approach.

The honourable Court of Appeal constructed section 78B to the effect as a matter ought to be raised under the Constitution by all parties, because in the present case the constitutional issue was initially raised by the respondent and then upheld by the Tribunal. The honourable Court of Appeal held, “That was not a constitutional issue of the kind prescribed by section 78B of the Judiciary Act 1903”.

My submission is that the honourable Court of Appeal was wrong for three main reasons. First, his Honour Justice French has pointed out to the central importance of both the section 109 of the Constitution and the section 78B of the Judiciary Act 1903 in the exercise of the right that flow from the State’s legislation. Secondly, in Miller v University of New South Wales (2003) 200 ALR 565 at paragraphs [75] and [83] in which the construction of section 170HB of the Workplace Relations Act 1996 was also disputed, the Federal Attorney-General was noticed and intervened.

Thirdly, your Honour, I say the questions to be considered by this honourable High Court is because of the apparent disconformity between the interpretation of operation of section 109 of the Constitution. This honourable High Court canvassed extensively in the decision of R v Credit Tribunal; Ex parte General Motor Acceptance Corporation [1977] HCA 34; (1977) 137 CLR 545 at 563, and held:

although a provision in a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s 109 into play.

That very much counter to the interpretation of the honourable court below, which is section 170HB of the Workplace Relations Act 1996 can invalidate section 14 of the Equal Opportunity Act 1995 by its own force.

Your Honour, the second special leave issue is what is the appropriate approach to natural justice and procedural fairness in terms of both calling evidence and the cross-examine witness. I say that a grant of special leave is appropriate on this issue for three main reasons. First, because of the judicial difference when calling evidence and the cross-examine witness is dispute. Therefore, it does need this honourable High Court’s guidance. Secondly, the clarification of a proper approach on this issue is of public and general interest and the administration of justice. Thirdly, I say that there were errors in the honourable court below which has brought to bear a substantial injustice on me.

I would like to draw your Honours’ attention on the first of my propositions, which is what is the proper approach to call evidence and the cross-examining witness. I wish to refer your Honours to the decision of his Honour Justice Nettle in Collection House Limited v Taylor [2004] VSC 49. At paragraph 23 his Honour said:

The paramount consideration is to do justice and thus to enable the parties to present their case as fully as necessary within the limits of the law. Delay of itself is rarely a basis for refusal.

And at paragraph 33 his Honour says:

The difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness.

Your Honour, one reason why I said the questions to be considered by this honourable High Court is apparently disconformity on applying the principle of natural justice and procedural fairness. This honourable High Court canvassed extensively in the decision of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 312 and held that the honourable judge below had directed not to call the evidence was incomplete direction and should be taken as a ground of appeal. That run very much counter to the interpretation of the honourable court below in terms of the principle of natural justice and procedural fairness.

In the present case the Tribunal did not accept my evidence and they did not allow me to call evidence from the respondent, so evidence was referred to by both sides’ witness. The Tribunal even did not allow me to have reasonable time to cross-examine the respondent’s witness. The honourable court below held that was okay.

The third special leave issue is what is the proper approach to the construction of section 8 and 10 of the Equal Opportunities Act 1995 (Vic) when there is an application for determination of unlawful discrimination on the ground that there has been a contravention of section 8 of the Equal Opportunities Act 1995.

I say that a grant of special leave is appropriate on this issue for three main reasons. First, because of the judicial difference in applying section 8 and 10 when discrimination is dispute, the law does require clarification. Secondly, the clarification of the law in this matter is of public and general interest because of the right are able to exercise under Equal Opportunity Act 1995, the right that flow from the legislation affect other Victorian corporations – general public, not only just an employee with attribute of Asian ethnic minority. Thirdly, I say there were errors in the honourable court below which have brought to bear substantial injustice on me.

I would like to draw your Honours’ attention on the first of my propositions, which is that the operation of section 8 and 10 need clarification. I wish to refer your Honour to the decision of his Honour Justice Smith in State of Victoria v McKenna [1999] VSC 310 at paragraph 42:

But if, after an analysis of the proven facts, the initial inference of racial discrimination remains open and the innocent explanations offered are rejected, it is not clear to me why the inference should not normally be drawn even though there is no additional positive evidence to support the drawing of the inference.

Apparently this conclusion is in accordance with section 10:

In determining whether or not a person discriminates, the person’s motive is irrelevant.

On the contrary, in the present case the honourable court below upheld the Tribunal apply motive test, which is whether the less favourable treatment was “due at all to his race”. The Tribunal’s reason for less favourable treatment was “because it was overwhelmingly cheaper to pay him less”. The honourable court below apparently asserts this is an innocent explanation. If this could be an innocent explanation, all discriminatory activity may be explained as acceptable because they all could be explained as economic and emotional reasons.

Your Honour, the fourth special leave issue is what is the proper approach to natural justice and procedural fairness in terms of the accuracy of the transcript of proceedings. I say that a grant of special leave is appropriate on this issue for three main reasons. First, because of the judicial difference when accuracy of a transcript of proceedings is in doubt; therefore, it does need this honourable High Court’s guidance. Secondly, the clarification of the proper approach on this issue is of public and general interest and the administration of justice. Thirdly, I say that there were errors in the honourable court below which have brought to bear substantial injustice on me.

I would like to draw your Honours’ attention on the first of my proposition, which is what thing ought be done when accuracy of transcript of proceedings is in doubt. I wish to refer your Honour to the decision of his Honour Chief Justice Hunt in R v Barry John Morris [1996] New South Wales Criminal Appeal Court. At the last paragraph his Honour says a party is entitled to check transcript if the party “is not on a fishing expedition”.

In the present case there are three aspects in this issue. One is I identified errors in the transcript of proceedings before her Honour Justice Williams. I contact the prothonotary of the Supreme Court and the Justice Department and follow their instructions and filed an application for accessing sound recordings to her Honour Williams, but her Honour refused to hear my application. The honourable Justice Bongiorno in Practice Court finally heard my application. His Honour found to the effect that I should not file my application at all and I had to go to this honourable High Court to raise my concern about the transcript.

The other aspect is about the transcript of proceedings before the Tribunal. The Tribunal revised the transcript and many sections were deleted. The Justice Department investigated and found that they are inadequate but the Justice Department could not do anything about it because it is the court’s matter. Further, some parts of the sound recordings of the proceedings before the Tribunal were deleted. After receiving further evidence from me, the Justice Department inform me through the local Member of Parliament that they could not do anything about it because it is a court matter.

I have not received a formally written response on that, therefore, according to these three aspects I suppose for the good conduct of the judiciary it is clearly a matter which would benefit from the guidance of this honourable High Court as to pronounce what thing ought be done in terms of the accuracy of the transcript and the sound recording for fair procedures. Thank you, your Honour.

HEYDON J: Mr He, your time has expired. Would you take a seat, please.

We have considered the decisions of the courts below, the written submissions of the applicant and the oral arguments he has advanced today. The constitutional question which the applicant raises does not in truth arise in the matter, so that it is not a suitable vehicle in which to determine that question. Further, it does not appear from any point advanced that the interests of justice would be served by granting special leave to appeal. We are not persuaded there are sufficient prospects of success in an appeal to justify the grant of special leave. Accordingly, the applications are dismissed.

Would you adjourn the Court until 3.30 pm on 30 January 2006 in Canberra.

AT 12.48 PM THE MATTERS WERE CONCLUDED