Griffin v Council of the Law Society of NSW [2016] HCATrans 250 (20 October 2016)

Last Updated: 21 October 2016

[2016] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S227 of 2016

B e t w e e n -

MICHAEL ANTHONY GRIFFIN

Applicant

and

COUNCIL OF THE LAW SOCIETY OF NSW

Respondent

Summons for expedition and stay

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 20 OCTOBER 2016, AT 9.36 AM

Copyright in the High Court of Australia

MR M.A. GRIFFIN appeared in person.

MR P.A. MADDIGAN: May it please the Court, I appear for the respondent. (instructed by The Council of the Law Society NSW)

HER HONOUR: Yes, Mr Griffin.

MR GRIFFIN: Your Honour, this is a summons to expedite the hearing of a removal application which I made in – earlier, several weeks ago – it was 19 September.

HER HONOUR: Yes. Mr Griffin, you may take it that I have read the materials. May I raise with you some practical aspects of the application?

MR GRIFFIN: Absolutely, your Honour. Thank you.

HER HONOUR: As I understand it, you seek by the summons that is before me today an order expediting the hearing of your application to remove the whole of the proceedings that are presently pending in the Court of Appeal and, in addition, you seek orders staying the proceedings in that court and setting aside the interlocutory orders made by Justice Emmett on 20 September this year, together with some consequential relief. That is so?

MR GRIFFIN: Not quite, your Honour, if I just may explain a little bit - - -

HER HONOUR: Yes.

MR GRIFFIN: The crux of the application is that if the matter is – in the Court of Appeal – if the Court grants me a stay of the Court of Appeal proceedings it is not necessary to expedite proceedings. So the expedition – the application for expedition is very much an alternative to the stay. So it is one or the other. If your Honour is inclined to grant a stay then there would be no reason to expedite the hearing of the removal application, but on the other hand, if your Honour is not inclined to grant the stay it might be important to expedite the hearing of the removal before the hearing date. So that is an alternative position.

HER HONOUR: Yes, I understand that, Mr Griffin. As a practical matter, were I to make an order expediting the hearing of the application for removal, there is no reason to conclude that that matter would be dealt with, even with expedition, before 3 November - - -

MR GRIFFIN: Yes, I understand that.

HER HONOUR: 3 November is the date fixed for the hearing of the appeal in the Court of Appeal so that the order for expedition would be futile.

MR GRIFFIN: Yes.

HER HONOUR: That, I appreciate, leads to the emphasis that you place on the application to stay the proceedings in the Court of Appeal.

MR GRIFFIN: Yes, your Honour.

HER HONOUR: The other thing I note is that in prayer 6 of your summons, you seek in the alternative an order that the constitutional issues, the international treaty issues and the issues relating to what you describe as “the High Court common law test for professional misconduct” be removed to this Court forthwith, and the Court of Appeal’s determination of those issues be stayed.

MR GRIFFIN: That is very much an alternative as well as stated. If it is convenient – I tried to keep some flexibility in the orders in order to give the Court some flexibility about which way it would prefer to go, given its own obligations and timetable.

HER HONOUR: Now, it seems to me, Mr Griffin, and you tell me if I am wrong, that the matters you would seek to have this Court determine are the matters that you refer to in prayer 6 of your summons, that is the constitutional issues, the international treaty issues and the test for professional misconduct.

MR GRIFFIN: In a sense if the Court finds in my favour on those issues, then the matter is finally determined. It is conclusive. There can be no professional misconduct. On the other hand, if the Court does not, there is still possibility the matter could proceed on the other issues in the Court of Appeal and some other ground of appeal might be successful.

HER HONOUR: Perhaps I will put it this way, Mr Griffin. You do not assert in relation to the other matters the subject of your grounds of appeal in the Court of Appeal any basis for removal to this Court other than that they happen to be associated with the issues that you say warrant removal to this Court. Is that right?

MR GRIFFIN: No, I do raise, in my submissions in the Court of Appeal, that the matters should be removed to the High Court and I say that primarily because the treaty issue is exclusively within the jurisdiction of this Court and then there are matters of interpretation - - -

HER HONOUR: Mr Griffin, I will come to that in one moment - that is the treaty issue.

MR GRIFFIN: Yes.

HER HONOUR: The matter that I am raising with you is that the issues that you identify in prayer 6 of your summons are the issues that you say warrant the attention of this Court and justify an order for removal. You do not suggest, for example, that your challenge to the Tribunal’s costs order would be a matter that would attract the attention of this Court on removal?

MR GRIFFIN: No, I am not saying that. I am saying they are the key issues which the Court would be interested – within its jurisdiction.

HER HONOUR: Mr Griffin, looking then at the practicalities of what it is I have before me today, the alternative claim for relief, namely the making of an order for removal of the issues identified in prayer 6 would attend to all matters of concern as far as you are concerned.

MR GRIFFIN: Not necessarily. There were some other aspects of the Tribunal hearing that I have problems with, but I consider that if the Court is going to remove it then these are the issues which – that I emphasise or rely upon to make that request and the Court to deal with in this Court because it is within the exclusive jurisdiction of the High Court, these treaty issues. The Court of Appeal does not have authority or jurisdiction to deal with those issues.

The other issues are federal issues, even though the Court of Appeal may be able to make some determination of the constitutional issues and to some extent some determination of the proper construction of the test for professional misconduct as explicated by this Court in Kennedy, they are the key issues that warrant the removal of this matter to this Court.

Why I put the alternative order at 6 in was to give some flexibility. If the Court had limited time then it can just simply remove these issues and hear these and then perhaps remit the matter back to the Court of Appeal if that is the way it was so inclined, although I have read some jurisprudence it is more likely to remove the whole matter. But if the Court is inclined to work its management system in such a way as to deal with some key issues, then these are the issues that the Court should probably deal with in that event.

HER HONOUR: As I have indicated, Mr Griffin, in the usual course the removal application would be dealt with by a Full Court comprising at least two Justices. Provision is made under the Rules, as you would be aware, for the determination of a removal application on the – without an oral hearing in circumstances in which that is considered the appropriate disposition, or by listing it for oral hearing.

MR GRIFFIN: Yes.

HER HONOUR: Subject to anything that you or Mr Maddigan wish to put to me, it would seem to me that I have power as a single Justice nonetheless to make the order for removal that you seek in prayer 6 of your summons.

MR GRIFFIN: Yes, thank you.

HER HONOUR: I raise that because that would seem to be a sensible focus for consideration of how the matter might proceed.

MR GRIFFIN: Thank you, your Honour, yes.

HER HONOUR: The Council of the Law Society neither consents to nor opposes an order for expedition of the hearing of the application, but it does oppose all the other bases on which you claim substantive relief.

MR GRIFFIN: Yes. I might agitate, your Honour, that it is somewhat contradictory, some of their – their submissions, I will deal with that later.

HER HONOUR: Yes. Perhaps you might start – if we start on this basis, Mr Griffin. In Bienstein v Bienstein, this Court observed that removal will only be justified where the issues are important and require this Court’s urgent attention. Their Honours went on to observe that not only do orders removing proceedings interrupt the proceedings of the lower courts, but, and importantly I interpolate, Mr Griffin, they deny this Court the benefit of the reasons of the lower court on the constitutional issues that are raised and they bypass the special leave requirements of the Judiciary Act.

Now, these are no small considerations, Mr Griffin. Beyond your assertion that it would save you the possibility of expense in the event that the Court of Appeal concluded the issue adversely to you and you then sought special leave, beyond that I am not sure, from your submissions, what you rely on to justify an order for removal other than the assertion that your international treaty claim, if I can put it that way, is in the exclusive jurisdiction of this Court under section 38(a) of the Judiciary Act.

MR GRIFFIN: Yes, your Honour. The removal provisions provide that if it is of public importance – I think I made some submissions regarding the nationwide or jurisdiction-wide, the multiple jurisdictions that the decision of this Court would apply in. Now, the new arrangements under the legal profession uniform law apply in Victoria. It is a cross-border arrangement. So what happens in this Court will also be important in Victoria under the new arrangements where the tests, et cetera, are all the same. So it would be binding across Australia. The common law test that is established in Australia was brought in to the Australian jurisdiction through the case of Kennedy v Law Institute of New South Wales by this Court.

HER HONOUR: Yes. Mr Griffin, the focus of my query is what would justify removal – one might appreciate that any argument that raises questions of constitutional validity will have ramifications in each of the Australian jurisdictions, but that is no reason for the intermediate courts of appeal throughout the Australian jurisdictions not to address those important arguments as they do regularly. What is it that makes this matter distinct in that respect?

MR GRIFFIN: One of the strong points that I am relying on is that if the matter is not removed then my application to prove – if the hearing of the removal application would prove abortive and any orders that the High Court may wish to make would be nugatory, so they have no effect. So the application would be dispensed, I suspect. So there is a risk that this matter would have to be withdrawn, inconvenience to the parties – both parties, not just me. I think that I state that inconvenience would be caused to both parties. I think that probably the strongest point of my argument is that the abortive and nugatory argument that this Court as a superior Court can stay those proceedings if there is a risk that proceedings in this Court would prove abortive.

HER HONOUR: I am not sure that I understand the submission. You speak of proceedings in this Court proving abortive.

MR GRIFFIN: Yes, if the removal application and any proceedings here that are currently being considered I believe would be nugatory in the event that the Court of Appeal proceeds to hear the application.

HER HONOUR: Yes, I understand that, Mr Griffin. It really is why I suggested perhaps there be some focus on the relief that you seek in prayer 6 of your summons and, of course, the matters that you raise are matters going to the appropriateness or otherwise of a stay since, for the reasons I have earlier indicated, the removal application, even if the subject of an order for expedition, may not be heard before 3 November. All right, is there some further matter you want to put?

May I just raise this in relation to the suggestion that the international treaty claim, if I can put it that way, and that is the suggestion that Article 19 of the International Covenant on Civil and Political Rights in some way confers a right that – recognition of which is inconsistent with the Tribunal’s determination of the complaint made against you. Is that right?

MR GRIFFIN: That is correct, and the construction of the test that they apply, their particular construction of the test is inconsistent with the treaty obligations.

HER HONOUR: Appreciating that international treaties to which Australia is a party may inform the approach to the construction of instruments, nonetheless that would not attract the exclusive jurisdiction under section 38(a). That jurisdiction is conferred in relation to “matters arising directly under any treaty”. Whatever the scope of section 38(a) and section 75(i) of the Constitution may be, what does seem clear is that an argument of the sort that you foreshadow would not be said to be a matter arising directly under any treaty and that is because the treaty does not form part of the domestic law of Australia.

MR GRIFFIN: Well, it is scheduled to the Australian Human Rights Commission Act – Schedule 2.

HER HONOUR: Yes.

MR GRIFFIN: Section 11 empowers the Commissioner to monitor and enforce the human rights.

HER HONOUR: Yes. So your argument is a matter that arises under the – it is a schedule to the - - -

MR GRIFFIN: A schedule to the Australian Human Rights Commission Act 1986.

HER HONOUR: Yes, so that a matter arising under that Act, you say, comes within 38(a)?

MR GRIFFIN: Yes, well, yes, because it directly affects the rights of the population.

HER HONOUR: All right.

MR GRIFFIN: I think what your Honour was suggesting was, for instance, if it was Australia’s obligations with another country. Is that what you were - - -

HER HONOUR: No, not at all. What I was suggesting was that, to the extent that obligations recognised in international instruments are incorporated into the municipal law of Australia, those matters would not answer the description of a matter arising directly under a treaty. They would arise under the municipal law of Australia, that is incorporated international law obligations.

MR GRIFFIN: My submission is it is incorporated.

HER HONOUR: Yes, I understand that. What I am raising with you is the suggestion that the arguments that you seek to make are arguments that could be developed in the proceedings before the Court of Appeal.

MR GRIFFIN: Well, I am not sure if they are. I think it would be beyond their jurisdiction. It would be – I mean, there may be equivalent provisions within New South Wales that the Court of Appeal could consider but the treaty has not been incorporated into New South Wales law unless it has been given effect in some sort of racial discrimination or something like that – freedom of speech law or human rights act as it has, for instance, in the ACT. So I do not think it would have the jurisdiction to do that, to make determinations on obligations and rights under an international treaty because I do not think it has been incorporated into New South Wales law.

HER HONOUR: That may not advance your argument any further because then you would confront the reasoning of Justice McHugh in Scott v Bowden rejecting that a claim for breach of the Convention Against Torture was a matter within the exclusive jurisdiction. His Honour observed that the treaty created no legally enforceable rights. I will not trouble with the rest of his reasoning but it seems to me that on either analysis your section 38(a) argument is not your strong suit.

MR GRIFFIN: All right. Well, my primary argument is that some of the issues are obviously and ostensibly within the jurisdiction of this Court. They deal with an interpretation of the Constitution on two principles – the Lange and the principle identified by his Honour Justice Kirby in Australian Plaintiff Lawyers Association and the international treaty issue which is clearly within the jurisdiction of the Court.

I have questions about the jurisdiction of the Court of Appeal to hear that issue at all and the common law test. They are the areas that I consider that this Court, its jurisdiction – attracts this Court’s jurisdiction primarily. A factor for consideration as far as I understand the test is the ordinary test which – my friend refers to another test. He applies the test for special leave which I do not think is the correct test for determining a stay.

HER HONOUR: The Council submits that by analogy the test propounded by Justice Brennan in Burgundy Royale applies.

MR GRIFFIN: Yes. There is no jurisprudence on that. There is no authority on that in which case I would suggest that the normal test, as specified – which I referred to in my submissions which is - the New South Wales test is in Alexander and in the High Court, Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No 1] 1986. That is the correct test.

HER HONOUR: Mr Griffin, your submissions are quite lengthy. Perhaps you could just tell me precisely the test that you say I should apply on the question of the stay.

MR GRIFFIN: The elements.

HER HONOUR: Yes.

MR GRIFFIN: There is no requirement for special or exceptional circumstances under this test, as my friend submits. I deny that, I refute that. The question is of the bona fides of the applicant. As you mentioned before in one of the cases you quoted, whether someone is trying to avoid the special leave provisions, there is no question of that. I genuinely think this is the best Court to deal with it.

This has been a bona fide application. The balance of convenience is very important and that goes to the costs of the parties and the expense and the time-consuming nature of running two parallel proceedings until we get a decision on either, the key element of which, in both that case, the Commonwealth Taxation and Alexander, is the weight of the risk that an appeal may be rendered nugatory if a stay is not granted.

That is the case here. An application here would apply – the application of that principle here would be that these proceedings, if the Court of Appeal proceedings go ahead, would be wasted basically. Any order made would be ineffectual or they would then rely on going to the convenience aspects and the expense of Aon Risk Services. So what would occur would then necessitate - a further litigation would be propagated. So it seems to me that it is a lot more efficient to have the Court deal with it.

HER HONOUR: If that argument were accepted, the entire reasoning to which I directed your attention in Bienstein would be set at nought. It would always be more convenient to come to this Court because it would save the possibility of a loss in the intermediate court and the need to bring a special leave application and so forth.

MR GRIFFIN: Yes. Just on Bienstein that case is very much distinguished from this case on the facts, this matter. Bienstein was basically a vexatious case. The party there brought in a number of cases

from the Federal Court, which had already been determined, most of them were determined. So there is nothing to remove.

HER HONOUR: Mr Griffin, I am not suggesting there is any factual analogy. I am referring to the principles that were enunciated and that have been applied frequently since that decision in dealing with applications of this kind.

MR GRIFFIN: Yes, but if that was the case, then section 40 would have absolutely no purpose under the Judiciary Act. I mean, section 40 must have some operation. I mean, if Bienstein is applied in every case then there is no point even making the application. I mean, it has got to be particular to those circumstances and every case only decides what it decides, you know the facts on that matter. This matter is completely different from Bienstein. That was a completely vexatious application. I have read the whole case. There was nothing for it to be removed.

Obviously that is a consideration for the Court, but to apply Bienstein in every case would render the provisions of the Act completely useless. It applied – nothing could get removed. I mean, the provision, section 40, actually states you could make an application right up to the point for removal – right up to the point of determination. So the hearing can continue and right at the very – the moment before the court below makes its decision you can make an application for removal. I mean, there has to be some point to that application. To apply Bienstein in every case - - -

HER HONOUR: Yes, I think I understand that point, Mr Griffin. Yes, anything further you wish to put?

MR GRIFFIN: No, at the moment, no, your Honour, thanks.

HER HONOUR: Yes, thank you. Mr Maddigan?

MR MADDIGAN: Yes, your Honour.

HER HONOUR: As I have indicated to Mr Griffin, in the usual course the removal application would be dealt with by a panel of two Justices, or two or more Justices, either in an oral hearing or on the papers. It seems to me there is no obstacle to my determining the relief claimed in prayer 6 of the summons. Do you have anything to put on that to the contrary?

MR MADDIGAN: No, not to the contrary, your Honour.

HER HONOUR: Yes. I think, Mr Maddigan, I do not need to trouble you further.

MR MADDIGAN: May it please the Court.

HER HONOUR: By summons filed on 11 October 2016, the plaintiff claims orders expediting the hearing of his application for removal of proceedings pending in the New South Wales Court of Appeal pursuant to section 40 of the Judiciary Act 1903 (Cth), staying the proceedings in the Court of Appeal pending the determination of that application, setting aside orders made by Justice Emmett in those proceedings, refusing a stay for certain causes identified in the substantive removal application to be removed into this Court forthwith, and consequential orders.

The applicant is a solicitor. On 8 April 2016, the New South Wales Civil and Administrative Tribunal, Occupational Division (“the Tribunal”) made orders on the application of the respondent, the Council of the Law Society of New South Wales (“the Council”), that the plaintiff is guilty of professional misconduct, reprimanding the plaintiff and requiring the plaintiff within six months of the date of the making of the orders at his own expense to undertake a course in Legal Ethics approved by the manager of the Professional Standards Department.

The orders arose out of a complaint made by the Council in consequence of a letter sent by the plaintiff to the chambers of Justice Foster of the Federal Court of Australia, following his Honour’s delivery of judgment in proceedings in which the plaintiff was acting for a party.

On 6 May 2016, the plaintiff appealed against the orders of the Tribunal by filing a summons in the Common Law Division of the Supreme Court. The appeal was subsequently removed to the Court of Appeal. The plaintiff propounds 28 grounds of appeal in five broad categories. Grounds 1 to 10 concern the test for professional misconduct at common law. Grounds 11 to 14 concern the meaning of the word “offensive” and the expression “grossly offensive”.

Grounds 15 to 17 assert bias by reason of the refusal of a member of the Tribunal to recuse herself. Grounds 18 to 27 contend excessive jurisdiction and jurisdictional error, by reason of the Tribunal’s decision being inconsistent with, and repugnant to, the Constitution, Article 19 of the International Covenant on Civil and Political Rights and the implied freedom of political communication most recently considered by this Court in McCloy.

On 24 August 2016, the appeal was listed for hearing on 3 November 2016. The plaintiff appeared on that occasion and did not oppose the fixing of the proceedings for hearing.

On 12 September 2016, the plaintiff filed a notice of motion in the Court of Appeal claiming orders staying enforcement of the Tribunal’s orders until six months after the determination of his appeal and staying the proceedings in the Court of Appeal pending the outcome of this Court’s determination of his application for removal of the matter. On that date, no such application had been filed in this Court.

The motion came before Justice Emmett, who heard it on 19 and 20 September 2016. As noted on 19 September, the application for removal was filed in the Registry of this Court. Justice Emmett made orders staying enforcement of the orders of the Tribunal until six months after the determination of the appeal, reserving to the parties liberty to apply on reasonable notice in the event this Court made an order for removal and otherwise dismissing the motion.

In determining the motion, his Honour addressed the grounds of appeal raising constitutional issues and international treaty issues and assessed that the prospects of successful removal to this Court “were not at all strong”[1]. His Honour considered, having regard to the very substantial delay between the commencement of the proceedings in the Supreme Court of New South Wales and the filing of the application in this Court, that it was not appropriate to interfere with the fixture for the hearing of the appeal on 3 November 2016.

The Council neither consents nor objects to the making of an order expediting the hearing of the removal application; otherwise, the Council objects to the substantive claims for relief in the summons.

In the ordinary course, the application for removal would be heard by a Full Court, either following an oral hearing or, in accordance with rule 26.7.1, without being listed for hearing. Were an order for expedition to be made, it is by no means clear that the application would be determined before 3 November 2016. It is for that reason that prominent in the plaintiff’s submissions today is the application to stay the proceedings in the Court of Appeal pending the determination of the substantive application.

The matters which the plaintiff contends warrant removal to this Court are the subject of an alternative order that he seeks in prayer 6 of his summons. He claims an order “that the constitutional issues, the International Treaty issues and the issues relating to the High Court common law test for professional misconduct” be removed to this Court forthwith and “that the Court of Appeal’s determination of those issues be stayed” until the determination of those issues by this Court.

I proceed upon acceptance that I have power to make an order for removal of the issues identified in prayer 6. Taking into account the practical considerations to which I have referred, it is convenient to turn to that. The Council, in its response to the removal application, relies on the statements in Bienstein v Bienstein. Relevantly, the joint reasons in that case said this:

“Orders for removal interfere with the processes of the courts hearing the proceedings sought to be removed. Only where the issues are important and require this Court’s urgent decision should the Court make an order for removal. Not only do orders removing proceedings interrupt the processes of the lower courts but they deny this Court the benefit of the reasons of the lower courts on the constitutional issues and allow parties to by-pass the special leave and leave requirements of the Judiciary Act. The s 40(1) power to remove is not intended to convert this Court into a court exercising a general supervisory jurisdiction over lower courts.”

The Tribunal found the language contained in the letter addressed to Justice Foster’s chambers was “grossly offensive”. The constitutional and international treaty grounds on which the plaintiff seeks to rely were summarised by Justice Emmett in these terms:

“[the plaintiff] contends that the legislative framework under which [the Tribunal] operated and made the orders is invalid, insofar as it is inconsistent with what is said to be a limitation on legislative power implied under the Constitution to ensure that the people of the Commonwealth may exercise a free and informed choice as electors.”

His Honour continued after reference to this Court’s decision in Coleman v Power to observe that:

In essence, his contention appears to be that his comments to Foster J constitute political comments or comments about government, on the basis that the judiciary is one of the three arms of government”.

In addition to calling in aid the implied freedom of communication on political and governmental matters, the plaintiff relies on Article 19 of the International Covenant on Civil and Political Rights. In the latter respect, he asserts removal is appropriate because his “international treaty claims” are within the exclusive jurisdiction of this Court under s 38(a) of the Judiciary Act 1903 (Cth).

As to that assertion, I observe that whatever the reach of s 38(a), I do not accept that the claims advanced in the grounds the subject of proposed removal in paragraphs 12, 18, 19, 26 and 27 are matters arising directly under a treaty within the exclusive jurisdiction of this Court.

Nothing that has been put this morning persuades me that the issues are such as to require this Court’s urgent decision, nor has any reason been advanced why, in the proper course, the matter should not be considered by the Court of Appeal, and in the event the determination by that court is adverse to the plaintiff, this Court on any application for special leave to appeal will have the benefit of that court’s consideration of the constitutional issues and the issues said to arise under the treaty and concerning the test for professional misconduct.

For those reasons, I decline to make an order removing the issues identified in prayer 6 of the summons into this Court forthwith.

It will be evident from these reasons that I am not persuaded that the application raises issues that would make it appropriate to make an order staying the proceedings in the Court of Appeal. The grant of a stay is not necessary to preserve the subject matter of the proceedings. I note the orders made by Justice Emmett to which reference has earlier been made. The plaintiff has the opportunity to agitate the contentions on which he seeks to rely in an application for special leave to appeal in the event that his appeal is unsuccessful before the Court of Appeal. No basis has been made out to set aside the orders made by Justice Emmett.

For the reasons that I have given, I see no utility in making an order expediting the hearing of the application filed on 19 September 2016. For these reasons, there will be the following order: summons dismissed with costs.

AT 10:31 AM THE MATTER WAS CONCLUDED

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[1] Griffin v Council of the Law Society of New South Wales [2016] NSWCA 275 at [33].