Morrison & Ors v Camenzuli & Ors; Attorney-General of the Commonwealth v Camenzuli & Ors [2022] HCATrans 48 (31 March 2022)

Last Updated: 31 March 2022

[2022] HCATrans 048

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S41 of 2022

B e t w e e n -

THE HON. SCOTT MORRISON MP

First Applicant

CHRISTINE McDIVEN AM

Second Applicant

THE HON. DOMINIC PERROTTET MP

Third Applicant

THE HON. JOHN OLSEN AO

Fourth Applicant

and

MATTHEW LOUIS CAMENZULI

First Respondent

THE HON. ALEX HAWKE MP

Second Respondent

THE HON. SUSSAN LEY MP

Third Respondent

TRENT ZIMMERMAN

Fourth Respondent

THE HON. PHILIP RUDDOCK AO

Fifth Respondent

Office of the Registry
Canberra No C7 of 2022

B e t w e e n -

ATTORNEY-GENERAL OF THE COMMONWEALTH

Applicant

and

MATTHEW LOUIS CAMENZULI

First Respondent

THE HON. SCOTT MORRISON MP

Second Respondent

CHRISTINE McDIVEN AM

Third Respondent

THE HON. DOMINIC PERROTTET MP

Fourth Respondent

THE HON. ALEX HAWKE MP

Fifth Respondent

THE HON. SUSSAN LEY MP

Sixth Respondent

TRENT ZIMMERMAN

Seventh Respondent

THE HON. PHILIP RUDDOCK AO

Eighth Respondent

THE HON. JOHN OLSEN AO

Ninth Respondent

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON THURSDAY, 31 MARCH 2022, AT 1.05 PM

Copyright in the High Court of Australia

____________________

HER HONOUR: In accordance with the remote hearing protocol I will announce the appearance of the parties.

MR G.O’L. REYNOLDS, SC and MR D.A. WARD appear for the applicants in the first matter. (instructed by Thomson Greer)

MR S. ROBERTSON and MR A.R. LANGSHAW appear for the first respondent in both matters. (instructed by Pryor, Tzannes and Wallis Solicitors and Notaries)

MR A.A. TSACALOS appears for the second, third and fourth respondents in the first matter. (instructed by Clayton Utz)

MR S.J.P. DUGGAN appears for the fifth respondent in the first matter. (instructed by Harpur Phillips)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears for the Attorney‑General of the Commonwealth in the second matter. (instructed by Australian Government Solicitor)

HER HONOUR: Mr Reynolds, I understand that the basis of the application for removal was the need for an urgent hearing and the perceived inability of the New South Wales Court of Appeal to hear the matter on that basis. I see from the transcript that there was some misunderstanding about what Justice Sakkar had said and, in fact, there was no difficulty and the Court of Appeal is now due to hear the matter tomorrow.

MR REYNOLDS: Your Honour, I think events might have overtaken things. I have been informed that the Commonwealth Attorney‑General has filed process removing this matter into the High Court as a right under the Judiciary Act.

HER HONOUR: Well, that had not happened by the time I came into Court, Mr Reynolds. I think the Solicitor‑General was seeking leave to appear, probably ‑ ‑ ‑

MR REYNOLDS: I am told that has been filed in the Court’s Registry, which is why I mentioned that to the Registrar before your Honour came onto the Bench.

HER HONOUR: Right. Well, I have not seen it. Is the Solicitor‑General connected? No. Well, I might need to stand down and establish a connection. I think the Solicitor‑General was going to connect and seek leave to appear, no doubt to advise the Court about this. I will stand shortly to allow that to occur.

We will adjourn temporarily.

AT 1.07 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.09 PM:

HER HONOUR: Mr Solicitor, I have been told by Mr Reynolds that an application for removal has been filed by the Attorney but I have not seen it.

MR DONAGHUE: No, your Honour. At the moment I am seeking the Court’s leave to appear. My instructions are that there is such a document that is in the process of being filed, together with the supporting affidavit, but that it has not yet been accepted by the Registry so I apologise for that state of affairs.

HER HONOUR: I see.

MR DONAGHUE: It is an application for removal under section 40(1) of the Judiciary Act.

HER HONOUR: What is the constitutional question? I mean, I know that there is a question about the constitution of the Liberal Party, but what is the Commonwealth constitutional question?

MR DONAGHUE: Your Honour, the defendant, or some subset of the defendants, yesterday filed a 78B notice. Does your Honour have that document?

HER HONOUR: No, I do not. I have read the transcript of the proceedings before Justice Basten so I know that there was a debate about who was supposed to file it, but I have not seen it. All I can see in relation to the material before me is that there is said to be a question about whether or not there is a matter, which suggests that the constitutional question is whether there is a constitutional question.

MR DONAGHUE: Your Honour, as I understand it from the section 78B notice, the steps in the argument are that there is a debate between the parties concerning the justiciability of a dispute as to the internal rules of a political party, which in the particular context of this case arises under, or are said to arise under, a federal Act by reason of the statutory implications of the dispute under the Commonwealth Electoral Act. And the matter being in federal jurisdiction for that reason, or the dispute being in federal jurisdiction for that reason, the questions of justiciability are necessarily to be resolved through the lens of the Chapter III question about whether there is a matter or not.

So the 78B notice that the defendants filed identified the constitutional question in a number of different ways, but one of them is whether a claim for a declaration in relation to the proper construction of the rules of a political party is capable of constituting a matter for Chapter III purposes. That, in our submission, takes one into the territory of the kinds of issues that the Court recently looked at in the Tasmanian Airports‑related cases. So, in very short compass, that is.....

HER HONOUR: The application for special leave in the Victorian case has been dismissed.

MR DONAGHUE: I just heard that, your Honour. So, my submission had been going to be that the matters should be heard together and that whatever happened in that case in terms of the alignment of the hearing should have also happened here. But my instructions are that the Attorney wishes to press the removal application, notwithstanding that result in the event that the Court is able to accommodate what I accept would need to be a very expedited hearing.

HER HONOUR: This is a very tenuous constitutional question, Mr Solicitor, you know that, and the effect that it has is to delay. The effect will be to delay the matter further. The New South Wales Court of Appeal is ready to hear the matter tomorrow. What you are seeking would be a hearing I suppose some time in the next week or so. It would take that long to hear a threshold question of justiciability before you even get to the substantive matter.

MR DONAGHUE: Well, your Honour, what the Attorney has in mind is the removal of the whole proceeding, so it would not be to bifurcate, it would be to have this Court rule on the threshold question, and if it decides the threshold question against the justiciability objection then to resolve the whole matter, but I do accept it would need to be a hearing probably within the next week and a half or so, something to that effect.

HER HONOUR: Well, I suppose the Court could always delist some of the hearing that is to be had next week.

MR DONAGHUE: Your Honour, I believe from the inquiries that we have made that there might be capacity on Monday the following week, if the Court were minded to grant the expedition application.

HER HONOUR: Well, that is not correct, Mr Solicitor.

MR DONAGHUE: Well, as I understand it, your Honour ‑ and I apologise for joining late, I joined as soon as we received the link details, but I appreciate that we are at fault for the limited notice the Court has had. As I understood it, the defendants – what was listed originally for this hearing is the defendants’ removal application. Has that been dealt with, your Honour, or is that still on foot?

HER HONOUR: No, we stood down to hear about whether or not the Attorney‑General’s application was proceeding on the basis I assume that that was seen to overtake whatever the applicant’s application was going to be.

MR DONAGHUE: Yes. Well, your Honour, I suppose all I can say is that the Attorney’s application is, of course, as of right under section 40(1). If the Court can hear the matter in a timeframe that would allow its resolution prior to the election, then my instructions are to ask your Honour to do that. If the Court cannot expedite and hear the matter completely within that timeframe then I do not seek to say anything against the proposition that your Honour could remit the matter back to the Court of Appeal so that the hearing tomorrow would proceed, but the application is made on the basis that we – and, of course, in circumstances where we did not know what had happened in Asmar ‑ but is made on the basis that if the matter can be resolved in this Court it should be, in very short compass for this reason.

There is a debate that has emerged in lower courts as to the ongoing authority of this Court’s decision in Cameron v Hogan. That is a matter that gave rise to a stream of authority in the Federal Court that was in a series of cases commencing in 2019 disapproved the Victorian Court of Appeal, so there has been a divergence of authority in that regard, and Asmar took a particular view about that issue but acknowledged that ultimately really the authority of Cameron v Hogan going forward and its ongoing applicability to disputes about the internal rules of political parties could really only be resolved here.

If this matter proceeds in the Court of Appeal it may be that the Court of Appeal will feel compelled to give weight to what was simply said in Asmar, and if that then generates another application for special leave to appeal then there will be ongoing uncertainty as to the preselection position, which – and perhaps expedited applications still closer to the election in circumstances where there would be very undesirable uncertainty as to the status of the candidates that the preselection of which is put in issue in these proceedings.

So that if the issue can be finally determined here, then that will in the public interest bring an end to the uncertainty, but if it cannot be, then it is obviously better being resolved by a court than by no court.

HER HONOUR: Well, when could the Attorney be ready to argue the matter?

MR DONAGHUE: Well, your Honour, we are very much in the Court’s hands. I think the Attorney realises that this is ‑ ‑ ‑

HER HONOUR: No, the Court needs to hear from you about when you could be ready.

MR DONAGHUE: Your Honour, I – sorry, I should have made something clear that I have not made clear. The Attorney gave instructions this morning that the removal application should be filed under section 40(1). As I understand the position, the Attorney has not yet decided to intervene in the matter under section 78A. So that as matters currently stand, if the matter is removed and not remitted then the matter would be argued by the existing parties and it would not only be if the Attorney also decides to intervene that the Commonwealth would be seeking to put a position on the issues. As I say, at the moment, that decision has not been made.

HER HONOUR: I am sorry, I am having difficulty following this, Mr Solicitor. Is the Attorney filing an application for removal under section 40(1)?

MR DONAGHUE: Yes, your Honour. But that application does not in and of itself make the Attorney a party to the proceeding.

HER HONOUR: No, that is true.

MR DONAGHUE: So that if the parties presumably being ready to argue the matter in the Court of Appeal tomorrow, I assume could accommodate any date that the Court can give them, and if the Attorney decides to intervene then the Attorney will have to accommodate whatever that is – will have to fit in with that. But the Attorney not having decided to intervene, I cannot put submissions about when we could or could not be ready to argue it. I think we are just – we have dealt ourselves out of that debate by reason of an intervention decision not having been made.

So, in my submission, it is really a matter for whether the Court and the parties can find a date that would be satisfactory in order to allow the issues between them to be resolved.

HER HONOUR: Well, it would be helpful to know when the election is going to be called.

MR DONAGHUE: I understand that, your Honour.

HER HONOUR: Yes.

MR DONAGHUE: But I do not have instructions to tell your Honour anything in that regard.

HER HONOUR: How long would it take you to prepare for a hearing?

MR DONAGHUE: If the Attorney intervenes, then I imagine that we could do it within a couple of days, if we had to.

HER HONOUR: Mr Robertson, I have not heard from you in relation to this time estimate. There is nothing much you can say on the basis that an application for removal is brought as of right by the Attorney, but in relation to how long it would take to argue.

MR ROBERTSON: Can I add two points? First, on the question of the utility. The utility of these proceedings diminishes hour by hour, day by day. It is not sufficient that it be resolved before the election. It is necessary to vindicate my client’s position for it to be resolved in a reasonable period of time before nominations close. Under the Commonwealth Electoral Act nominations can close as early as 10 days after the issue of the writs, so it is quite possible that there is a very short period of time before which these proceedings become inutile.

True it is, as your Honour the Chief Justice puts to me, in the event that it is clear that the matter falls within section 40(1), that is an application as of right, but having regard to the circumstances of utility that I have just outlined my application would be that in the event that your Honour makes an order under that subsection that your Honour would immediately remit it to the Court of Appeal in circumstances where that court is ready to hear the case, the parties are ready to argue that case tomorrow and where we are in the unusual circumstances of utility diminishing in the way that I have identified. The second point to raise ‑ ‑ ‑

HER HONOUR: Mr Robertson, would you be arguing that there is not a constitutional question arising under section ‑ ‑ ‑

MR ROBERTSON: We would be arguing that in truth a constitutional question does not arise. Can I perhaps explain it this way? Does your Honour have the application for removal available to your Honour?

HER HONOUR: Yes.

MR ROBERTSON: My learned friend the Solicitor‑General referred to a 78B notice. That largely copied material that was in the application for removal. If your Honour goes to paragraph 25 on page 7, using the numbers at the bottom of the page, your Honour sees the setting out of the argument in relation to the application. Now, it is common ground as
between the parties to the proceedings that my client’s claim is a claim arising under the laws made by the Parliament.

Now, in light of that common ground we will be submitting to either the Court of Appeal or elsewhere that this case falls within a very different category to the way in which the arguments were advanced in particular in Cameron v Hogan. We will be submitting that the Cameron v Hogan question that my learned friend the Solicitor‑General drew attention to is not a question that will in fact arise on proper analysis in the proceedings before the Court.

It seems to be common ground that to at least some extent the Court of Appeal has jurisdiction, jurisdiction of the kind that the Constitution in section 76(ii) as vested in the Supreme Court by section 39 of the Judiciary Act in circumstances where it is a matter arising under a federal statute, and in the face of that we will be respectfully submitting that any suggestion that in those circumstances the kinds of justiciability questions that concerned this Court in Cameron v Hogan, which concerned matters such as there was no relevant contract, no relevant right of property and matters of that kind, do not even arise at all.

So, our submission will ultimately be those kinds of particularly interesting questions of the kind my learned friend the Solicitor‑General has drawn attention to simply do not arise on proper analysis and that is a factor that we respectfully say would support your Honour immediately remitting the proceedings to the Court of Appeal in the circumstances that I have outlined in the event that your Honour is of the view that the Solicitor‑General is entitled to make the application that he has foreshadowed as of right under section 40(1).

HER HONOUR: Yes, thank you, Mr Robertson. Well, I need to be seized of the application for removal, of course, by the Attorney. When will this be made, Mr Solicitor? I think you are on mute, Mr Solicitor.

MR DONAGHUE: Sorry, your Honour. Imminently. I thought it would have happened before this hearing commenced, so it may have happened while the hearing is underway, but if it has not it should happen very soon.

HER HONOUR: All right. Well, I will stand the matter down until 2.00 pm daylight saving time ‑ ‑ ‑

MR DONAGHUE: If the Court pleases.

HER HONOUR: ‑ ‑ ‑ and I will take up the matter then. The Court will adjourn until 2.00 pm.

AT 1.26 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.00 PM:

HER HONOUR: Mr Solicitor, the application has now been filed. I have had an opportunity to read it.

MR DONAGHUE: Thank you, your Honour.

HER HONOUR: Mr Robertson, could I ask you to recap on the submissions you were making earlier about why the matter could be remitted and how the question of the correctness of Asmar v Albanese and the Cameron v Hogan point might not even arise?

MR ROBERTSON: Yes. In short, we say that this cause falls within the extraordinary circumstances considered by this Court, for example, in Local Government Association v Queensland [2001] HCA 75; 185 ALR 457 where in the event that your Honour makes the order that is apparently now sought – I do not know if you have the papers but I assume that has now occurred under section 40 – my application is an application for the matter to be remitted under section 42.

There are essentially three reasons why we say that is the appropriate course. First, we respectfully say that insofar as the matter is said to be a constitutional point, it is a very weak one, and is unlikely in any event to arise. That is most appropriately identified by reference to the application for removal, if your Honour has that.

HER HONOUR: Yes.

MR ROBERTSON: If I could go to paragraph 25, it seems to be common ground between the parties that the Court of Appeal would at least have some jurisdiction in relation to the matter before it. Your Honour notes from the first sentence of paragraph 25 – and this is common ground – that:

the cause arises under a federal Act.

It is common ground as between the parties that my client’s claim – and we would therefore say the controversy arises under a federal Act and, accordingly, the jurisdiction that the Court of Appeal would be exercising is federal jurisdiction.

The implications or otherwise of the matter being in federal jurisdiction does not seem to be a matter that was argued, or at least considered, in any detail in the Asmar case to which your Honour the Chief Justice has just referred. One of the grounds of appeal appeared to assume that the matter was in federal jurisdiction, we say correctly, but there did not seem to be any analysis as to what the implications, if any, that had to the appropriate approach to the matter, including the application or otherwise of Cameron v Hogan.

.....point is to say that Cameron v Hogan is authority and is only authority for the proposition that one needs a justiciable or a cognisable interest in order to invoke the jurisdiction of the Court. There was not one in Cameron v Hogan because, for example, there was no contract, so the High Court held. Similarly, there was no relevant right of property. This case is very different because my client’s claim – and this is common ground – is a claim arising under federal law, so we say that is enough to fit within Cameron v Hogan in the sense of saying we are able to identify a relevant cognisable interest. That is to say, the status of certain persons as endorsed by the Liberal Party, endorsement being a status that is recognised under in particular section 169 of the Commonwealth Electoral Act.

So the submission that I will be making tomorrow in the event that your Honour does not remit the – in the event that your Honour does remit the proceeding back to the Court of Appeal for me to say the.....Cameron v Hogan is in effect a sideshow in circumstances where it is common ground as between the parties my client’s claim arises in federal jurisdiction, arises under a Commonwealth Act, and my client seeks to vindicate in effect that position: what is the status of persons who are said to be endorsed candidates? That is an argument of a different kind and does not, in our submission, cut across anything that was said in Cameron v Hogan at all.

So we respectfully submit that a key factor as to why your Honour would remit the matter back to the Court of Appeal is the point that my learned friend the Solicitor‑General seeks to raise as a potentially interesting point is one that, at least on my client’s case, might not even arise at all. This is circumstances, as I said before, of extraordinary urgency, so I accept that it is an extraordinary course for the Court to remove a matter to this Court who would remit it back immediately, but these are extraordinary circumstances, in particular having regard to the questions of utility that I drew attention to before, noting that the date for nominations – at least by way of what is described in the Act as bulk nominations – could be as early as eight days after the issue of the writs.

We, of course, do not know when the writs will be issued and when the House of Representatives will be dissolved, but in the event that occurs, for example, during the course of the weekend or perhaps on Monday there are only a matter of days before this matter becomes inutile, and on my client’s case to vindicate his ultimate position not only does he need to vindicate what he says is the correct position as to the status of people who have reportedly been endorsed but the next step has to be taken, which is selection of an endorsement in accordance with the ordinary constitutional provisions of the Liberal Party New South Wales division.

So we respectfully say that these proceedings are even more extraordinary than those that led Justice Kirby in the Local Government Association case to remit a matter that had been removed to this Court under section 40, and that is the application that we make.

HER HONOUR: Yes, thank you. What are the terms of the order that you seek? Just that the matter be remitted to the Supreme Court of New South Wales?

MR ROBERTSON: That the matter be remitted to the Court of Appeal of the Supreme Court of New South Wales.

HER HONOUR: Yes. Well, I do not think it needs to be to the Court of Appeal. I think the Supreme Court is the court.

MR ROBERTSON: May it please the Court.

HER HONOUR: Mr Solicitor, what do you say in response to why the matter should not be remitted?

MR DONAGHUE: Your Honour, in essence, our point is that in Cameron v Hogan this Court said – and if I could just read you a couple of lines from the report – their Honours said, with respect to the claim for declaratory relief there involving, amongst other things, preselection of a politician:

such a case is not one for a declaration of right. The basis of ascertainable and enforceable legal right is lacking. The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment.

Justice Starke said in the same vein:

Courts do not interfere in the contentions or quarrels of political parties, or, indeed, in the internal affairs of any voluntary association, society or club.

That principle was stated by this Court some 90 years ago and it has been whittled down in various ways in competing lines of authority, including in a line of authority that in the Victorian cases from 2019 have – effectively, the Victorian cases have said the whittling down has gone too far, those cases in the earlier line are inconsistent with what this Court said in Cameron v Hogan, and the authority of that decision should be honoured unless and until this Court revisits it.

In the Asmar case the Court of Appeal likewise recognised the authority of Cameron v Hogan unless and until this Court revisits it. So there is an unresolved – and your Honours recently an hour ago ‑ ‑ ‑

HER HONOUR: Mr Solicitor, all you are saying is that intermediate appellate courts will be applying the authority of this Court.

MR DONAGHUE: Well, they will be applying the authority of this Court in circumstances where there is a lively controversy about the extent to which that authority is properly able to be distinguished in relation to disputes about political parties.

HER HONOUR: I am sure the New South Wales Court of Appeal can discern what Cameron v Hogan stands for.

MR DONAGHUE: Your Honour, I certainly am not in any way suggesting otherwise.

HER HONOUR: Yes.

MR DONAGHUE: But I cannot do it in a way – they cannot revisit the authority of that Court – of that decision or authoritatively determine how it does or does not apply, so there is the prospect that the Court of Appeal will reach a decision, perhaps influenced by an aspect of Asmar that your Honours did not need to look at in refusing special leave because your Honours rejected special leave in that case on the basis of the issue about the construction of the rules of the ALP rather than on the justiciability point.

HER HONOUR: Yes.

MR DONAGHUE: So that one might ‑ ‑ ‑

HER HONOUR: Then there is the question of whether or not this issue actually arises, as Mr Robertson says.

MR DONAGHUE: Well, in my submission, Mr Robertson’s arguments are – submissions are really about how the issue should be resolved on its merits. He says, well – the proposition that the matter is in federal jurisdiction cannot be the answer because that is the reason the issue arises. If we were not in federal jurisdiction then the Court would not need to grapple with whether there is a matter or not, that would be an irrelevant inquiry. It is because we are a federal jurisdiction that it is necessary to resolve the constitutional question whether or not a dispute of this kind is or is not a matter for Chapter III purposes.

HER HONOUR: You are in a position where you have not intervened in the proceedings.

MR DONAGHUE: I accept that, your Honour.

HER HONOUR: It creates a difficulty for you.

MR DONAGHUE: I am in a weak position and I accept that that is so.

HER HONOUR: Yes, Mr Solicitor, I understand that.

MR DONAGHUE: I do not think I can put it further, your Honour, other than to say if your Honours were in a position to resolve it, then that will really resolve it and there will not be any further question of special leave applications and there will not be a need to debate distinguishing Cameron v Hogan your Honours could confront the issue squarely.

HER HONOUR: Yes, the alternative, of course, is that the usual processes take their course and the matter comes to us and if it needs to be dealt with urgently it will be.

MR DONAGHUE: I accept that, your Honour.

HER HONOUR: Yes. Mr Reynolds, do you wish to be heard?

MR REYNOLDS: Yes, your Honour.

HER HONOUR: As the Attorney said, all that needs to be said from your point of view.

MR REYNOLDS: We say that the matters to which Mr Robertson has pointed to about urgency underline the importance of this matter remaining in this Court. That is because there is a need for finality, and the Court of Appeal cannot deliver that but this Court can. The problem is that because, as the Solicitor has said, this case drips with what might be called special leave points, it is almost inevitable that the loser in the Court of Appeal will be applying for special leave here. The difficulties that present themselves today are going to be far more difficult in a few days’ time or weeks’ time, whatever the Court of Appeal..... So, urgency points towards the matter remaining here, not being remitted, and to suggest otherwise, with respect, carries no weight at all.

So far as the other issues are concerned, as the Solicitor says, there is federal jurisdiction here. It should not have been submitted to your Honour that there are not important and significant constitutional questions that arise in this context. They are very well known, and particularly well known in relation to Cameron v Hogan and Chapter III. They relate to whether or not there an exercise of judicial power when the Court deals with a matter in relation to a bare declaration but also raise issues of justiciability and standing, the very matters which the Solicitor pointed to in Cameron v Hogan in a federal jurisdiction case raise important questions under Chapter III and that it is not open to deny that that is the case.

Now, what is likely to happen if the matter proceeds to the Court of Appeal tomorrow is that it is extremely likely that the matter is simply going to be coming back up to this Court, and when it does the matter will be even more urgent. There will be applications to hear cases on the weekend or over Easter or what‑have‑you. The convenient course ‑ ‑ ‑

HER HONOUR: You are not scaring me, Mr Reynolds. Urgency is a matter that the Court deals with all the time. You should not assume that an application for special leave would be granted, of course.

MR REYNOLDS: I am not doing that, your Honour. I am simply saying that it is going to take time and, as the Solicitor has said, there are issues here of a kind that would normally interest the Court on a special leave application, particularly where there have been multiple attempts in the courts below to circumvent the effect of Cameron v Hogan as an authority. It has made that point. This issue, Mr Robertson says, will not arise. It is absolutely certain to arise, as are the Chapter III points, because the Court of Appeal before they consider the issues will be considering the question of whether or not these issues are justiciable.

Now, that is the normal way of proceeding and one cannot think that the Court of Appeal would act otherwise. So what I am saying is that everything that has been put to your Honour as a reason for the matter not to remain in this Court carries not only little weight but no weight at all.

HER HONOUR: Yes, thank you. Mr Tsacalos, do you wish to be heard?

MR TSACALOS: Your Honour, only to support the submissions of the Solicitor and my learned friend, Mr Reynolds, in the sense that my clients are seeking a final and conclusive determination and our view is that is best determined in the High Court for obvious reasons.

HER HONOUR: Mr Duggan?

MR DUGGAN: Your Honour, I do not wish to be heard on the question of remittal.

HER HONOUR: Yes, thank you.

On the application for removal there will be the following orders:

1. Further compliance with Part 26 of the High Court Rules 2004 (Cth) be dispensed with.

2. The whole of the cause in proceeding number 2022/00074168 pending in the New South Wales Court of Appeal is removed into the High Court.

3. No order as to costs of the application.

The matter having been removed into this Court, the Court further orders that:

4. The matter be remitted to the New South Wales Court of Appeal.

The matter is remitted for reasons of urgency, efficiency and utility.

The Court will now adjourn until Tuesday, 5 April at 10.00 am.

AT 2.16 PM THE MATTER WAS ADJOURNED