State of Queensland v Mr Stradford (a pseudonym) & Ors; Commonwealth of Australia v Mr Stradford (a pseudonym) & Ors; His Honour Judge Salvatore Paul Vasta v Mr Stradford (a pseudonym) & Ors [2024] HCATrans 52 (14 August 2024)

Last Updated: 16 August 2024

[2024] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S24 of 2024

B e t w e e n -

STATE OF QUEENSLAND

Appellant

and

MR STRADFORD (A PSEUDONYM)

First Respondent

HIS HONOUR JUDGE SALVATORE PAUL VASTA

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

Office of the Registry
Canberra No C3 of 2024

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

MR STRADFORD (A PSEUDONYM)

First Respondent

HIS HONOUR JUDGE SALVATORE PAUL VASTA

Second Respondent

STATE OF QUEENSLAND

Third Respondent

Office of the Registry
Canberra No C4 of 2024

B e t w e e n -

HIS HONOUR JUDGE SALVATORE PAUL VASTA

Appellant

and

MR STRADFORD (A PSEUDONYM)

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

STATE OF QUEENSLAND

Third Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 2024, AT 10.03 AM

Copyright in the High Court of Australia

____________________

GAGELER CJ: I will note the appearances as recorded in the Court list.

MR G.J.D. DEL VILLAR, KC, Solicitor‑General of the State of Queensland, appears with MR J.M. HORTON, KC, MR D.M. FAVELL and MS F.J. NAGORCKA for the State of Queensland. (instructed by Crown Law (Qld))

MR P.D. HERZFELD, SC appears with MR D.J. REYNOLDS for Mr Stradford. (instructed by Ken Cush & Associates)

MR S.J. WOOD, KC appears with MR B.W. JELLIS, SC and MR T.I. KATZ for His Honour Judge Salvatore Paul Vasta. (instructed by King & Wood Mallesons)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia, appears with MR T.M. BEGBIE, KC, MR D.P. HUME and MS O.J. RONAN for the Commonwealth of Australia. (instructed by Australian Government Solicitor)

MR M.J. WAIT, SC, Solicitor‑General for the State of South Australia, appears with MR J.F. METZER on behalf of the Attorney‑General for the State of South Australia, intervening. (instructed by Crown Solicitor’s Office (SA))

GAGELER CJ: I will also note that the parties and interveners have agreed on an order of address and on an allocation of time that will have these three appeals heard over the next two days. According to that agreement, the Solicitor‑General for the Commonwealth is the first to address the Court.

MR DONAGHUE: If the Court pleases. Your Honours, can I start by taking the Court immediately to the key facts, so I ask your Honours to take up the core appeal book and to turn to page 261, paragraph 18. It may well be that other parties will seek to take your Honours to the facts in more detail, but the facts I am going to review briefly now are sufficient for the purposes of the Commonwealth’s appeal. On page 261 you should see in the middle of the page a heading:

FACTS RELEVANT TO LIABILITY –

In paragraph 18 it is recorded that in:

April 2017, Mr Stradford filed an initiating application in the Circuit Court (the matter) seeking property adjustment orders under s 79 of the Family Law Act in respect of the matrimonial assets owned by him and his then wife.

And then in the next paragraph you will see the basis upon which the court had jurisdiction to determine that identified:

The matter between Mr Stradford and his then wife was undoubtedly a matrimonial cause.

The primary judge records in the last sentence there. So, there is no question that Judge Vasta had subject matter jurisdiction in the case that was before him. That case came on, as you see over the page in paragraph 21, for final hearing before Judge Vasta in August 2018, when both Mr Stradford and Mrs Stradford were unrepresented, but the hearing did not proceed to conclusion:

Mrs Stradford alleged . . . that Mr Stradford had not properly or adequately disclosed his financial circumstances.

The Judge was very critical of Mr Stradford, and ultimately what occurred, as you see in paragraph 24, is that the hearing was “effectively adjourned” and further disclosure orders were made. As you see then in paragraph 28, the matter came back for directions before a different judge, Judge Turner, with respect to the extent of compliance with the further disclosure orders that had been made. As you can see at paragraph 28, while Judge Turner heard submissions on that occasion about the extent of compliance with the orders, reading from the fourth line down in paragraph 28:

Judge Turner did not find that Mr Stradford had failed to comply with any of the disclosure orders, or that he had not made full and frank disclosure, or conclude that Mr Stradford was in contempt of the orders made by the Judge.

Turning then to paragraph 32 – sorry, I have perhaps gone too quickly, but the matter then came back, you can see in paragraph 29, in December, came back before Judge Vasta, and Judge Vasta proceeded under the misapprehension that Judge Turner had already found that Mr Stradford had not complied with the orders and was in contempt. While it is accepted that there was really no proper basis for the judge to have formed that state of mind, the primary judge accepted – I will not take your Honours to it, but he accepted at paragraph 169 that Judge Vasta did actually believe this.

So, he was mistaken but genuine in his belief that Judge Turner had found Mr Stradford to be in contempt. It was that conclusion as to that genuine belief that underpinned the primary judge’s holding that Judge Vasta was not liable for the tort of collateral abuse of process. Nevertheless, proceeding on the basis that Judge Turner had made such a finding, there was then the events that lead to this appeal taking place. Your Honours can see that the judge was extremely critical of Mr Stradford in the hearing, and I will not take you through the summary you see up to paragraph 36. There is then, in paragraph 37 of the judgment, an extract from the ex tempore reasons that Judge Vasta gave:

That history included . . . that Judge Turner had already found that Mr Stradford was in contempt for non‑compliance with the orders . . . His Honour noted that, having regard to that finding, it was up to him to assess “the criminality of that contempt” –

and you can see – I will not take your Honours through the extract there – Judge Vasta found that there was a very serious contempt, that is recorded. Basically, he thought there was a lot of money that had been going through gambling accounts that had not been accounted for, and that in the circumstances, there had been a serious failure to comply with the orders that had been made.

That then had the consequence that the orders were made – you see extracted in paragraph 38 – the court declared Mr Stradford to be in contempt of various orders, being the property disclosure orders, and the court ordered that Mr Stradford:

be sentenced to a period of imprisonment in the Arthur Gorrie Correctional Centre for a period of twelve (12) months, to be served immediately . . . to be released –

six months later:

with the balance of the sentence to be suspended –

Then in paragraph 39, you see the “Warrant of Commitment” that was signed, directed to “The Marshal”, “All Officers of the Australian Federal Police”, “All Officers of the State and Territory police forces”, and it required Mr Stradford to be taken into custody.

The consequence of that, in terms of giving practical efficacy for those orders, is summarised, particularly relevantly to the Commonwealth’s position, at paragraphs 40 through to 44 – because the Commonwealth had employed, under contract – or rather had contracted with MSS Security to provide security at the Commonwealth Courts building in Queensland. Two guards employed by MSS Security pursuant to that contract were present:

One of the MSS guards had been called to the Judge’s courtroom shortly before –

the judgment had been given, so he had heard the judge give the judgment and find that Mr Stradford was in contempt. He then, together with another guard – as you can see in paragraph 42:

escorted Mr Stradford to the door of the courtroom, through a public concourse for approximately 14 metres to a service door, though the service door to a goods lift and then to a holding cell in the court complex occupied by the Circuit Court. The MSS guards supervised Mr Stradford while he was detained in the holding cell.

That supervision lasted for about half an hour, until Queensland Police Service personnel arrived at the court complex:

Between 12.54 pm and 1.00 pm –

and:

left with Mr Stradford, handcuffed in their custody –

It is for that ‑ ‑ ‑

GLEESON J: Are there any factual findings about how the guards came to do that? Were they told by the judge to do that?

MR DONAGHUE: I will have to turn up the precise detail. One of them had been called up to the courtroom before the judgment was given, so your Honours could at least infer – I will check if there is a more detailed finding – that that was in order, because it was plain what was about to occur. In my submission, it was then evident from what had unfolded. I think, your Honour, if you go to 147 of the book ‑ ‑ ‑

BEECH‑JONES J: Is that paragraph or page, Mr Donaghue?

MR DONAGHUE: That is the page of the court book, in the red numbers in the top right‑hand corner.

GORDON J: That was the direction from the judge to the officers.

MR DONAGHUE: To the officers – that is right. This is an extract from the transcript of what was occurring:

I will sign the warrant that will commit [Mr Stradford] to prison and the QPS officers will arrive soon to take him to prison. In the meantime, security, you will have to escort [Mr Stradford] to the cell downstairs to await the officers –

So, the answer is yes. Just finishing with the facts, if your Honours could go back to 269 of the court book. Mr Stradford had been taken to the cells for half an hour, taken by the police from the cells. He was thereafter detained for a period of about six days.

His detention came to an end, as you can see from paragraph 49, when the matter came back before Judge Vasta, this time with Mr Stradford legally represented by counsel. An appeal had been filed against Judge Vasta’s orders, the nub of the appeal being, as you can see from the middle of 49, that:

the Judge had proceeded on the erroneous premise that Judge Turner had found that Mr Stradford was in contempt –

What was sought on that occasion on the 12th was a stay of the orders that had been made requiring Mr Stradford’s detention. The judge delivered ex tempore reasons granting that stay application, effectively conceding that he had erred in finding that Mr Straford was in contempt and erred in sentencing him to imprisonment. You can see an extract in paragraph 50 for his reasons there. Over on to the top of 271, you will see near the end of the reasons, Judge Vasta accepted that:

it would be totally unjust not to grant the relief that has been sought by the Applicant husband today.

So, the consequence was that his Honour stayed his earlier order:

Mr Stradford was released –

As you can see in paragraph 52, and the appeal that had been lodged was duly allowed by the Full Court about two months later.

Now, on those facts, the primary judge held that Judge Vasta, the Commonwealth and Queensland were each liable for false imprisonment. Relevantly to the Commonwealth’s appeal, that conclusion was a consequence of three holdings.

First, that the contempt orders made by the Federal Circuit Court that were affected by jurisdictional error did not provide any lawful justification for Mr Stradford’s detention in the period before those orders were set aside. Second, that Judge Vasta was not protected by judicial immunity because an inferior court judge, even when acting with subject matter jurisdiction, is the judge held not immune if they act in excess of that jurisdiction by making a gross or obvious error. And third, that there was no common law defence available to officers acting in the execution of an apparently valid order.

GAGELER CJ: Is the second of those points relevant to the Commonwealth’s liability?

MR DONAGHUE: To the Commonwealth’s liability?

GAGELER CJ: Yes.

MR DONAGHUE: No. We have a – well, no, save insofar as negatively, in that there is an order for joint and several liability, so that if the judge is immune, our liability is increased, but we were not vicariously liable for the judge’s conduct.

Those three issues I have just identified are the subject of the three grounds of appeal in the Commonwealth’s appeal. I will be addressing the first two of them, which are the subjects of grounds 1 and 4 respectively. Mr Begbie will be addressing ground 2, which is the common law defence for someone acting pursuant to an apparently valid order. Ground 3 is simply a consequential ground upon 1 or 2.

Your Honours, there is no doubt in this case that Mr Stradford did suffer a gross miscarriage of justice, and the Commonwealth in pursing this appeal is not denying that or seeking to minimise that in any way. The consequence of the facts that I have just recounted, in our submission, is that this appeal presents a difficult, even somewhat extreme context for this Court to look at the issues that it presents.

Nevertheless, our submission is that the common law principles, particularly as they relate to judicial immunity, are and have always been recognised as being principles that serve an important systemic role in preserving the independence of the judiciary and that, having regard to that important systemic role, those principles should not be wound back or weakened in order to provide a mechanism or a pathway to compensation in a rare and extreme case such as the present.

We accept that that is capable of producing harsh results. There are mechanisms – albeit, not perfect mechanisms – that exist where people suffer harsh results for which there is no legal recompense, particularly act of grace payments, ex gratia payments, mechanisms of that kind.

GORDON J: I was going to ask about that. Are they covered by the Commonwealth statutes that deal with those matters?

MR DONAGHUE: They are potentially eligible under those statutes.

GORDON J: Do we have set them out somewhere?

MR DONAGHUE: Not in the submissions, I do not think, your Honour.

GORDON J: I would be grateful if someone could produce a list of them or a note on them, please.

MR DONAGHUE: Yes. So, the relevant section, I think we can give your Honour a copy. It is section 65 of the Public Governance, Performance and Accountability Act 2013. It gives the Finance Minister a wide power:

if the Finance Minister considers it appropriate –

to make a payment because of special circumstances. There is a legislative note to that provision that says it can be used:

even though the payment . . . would not otherwise be authorised by law or required to meet the legal liability.

So, the mechanism is potentially available and, indeed, right back before this proceeding commenced, there was an application made by Mr Stradford for the payment under that provision. He gave the Commonwealth four weeks to respond; the Commonwealth said, we cannot make a decision that quickly, and the proceeding was then commenced on the ‑ ‑ ‑

STEWARD J: There are guidelines, are there not, that the Department has ‑ ‑ ‑

MR DONAGHUE: There are guidelines to define it, and one of the things that – there are both guidelines on the act of grace provisions, but there is also, once litigation is commenced, legal services directions which govern the conduct of litigation and which mean the Commonwealth, under those directions, cannot settle unless there is a meaningful prospect of liability. So, while the proceeding is on foot, steps are not taken under those guidelines.

Now, none of that is to be – I obviously cannot stand here and fetter the Finance Minister as to how these mechanisms would be dealt with, but in the event that Mr Stradford loses, there is a statutory mechanism that could again be engaged, where the question for the Minister would be whether there are special circumstances, and then there would be, of course, a question as to what amount would be made payable. But our basic point is, accepting that the result we urge upon the Court might be seen as a harsh one on the particular facts, we nevertheless submit that the systemic issues are such that that result is justified.

EDELMAN J: Well, there is a different systemic issue that is not directly raised by any of the grounds of appeal, and it may or may not be too late in this country to turn back from, but that is the fact that if this had all occurred in the Family Court rather than the Federal Circuit Court, there would be no question of liability.

MR DONAGHUE: Precisely, your Honour, yes. No question at all. So, insofar as there is an injustice here, it is an injustice that we readily accept could be produced by exactly the same facts occurring in any superior court throughout the country. Your Honours will hear when I will come to it, our submission is that the common law on Australia from an immunity perspective draws no distinction between superior or inferior courts, or, if we are wrong about that, that your Honours should align the two. But we submit the common law has already developed in that way, so that would remove the anomaly.

GLEESON J: Did Justice Vasta’s subject matter jurisdiction correspond with the jurisdiction of the Family Court?

MR DONAGHUE: With respect to the matrimonial cause?

GLEESON J: Yes.

MR DONAGHUE: At the relevant time I think the answer is yes, your Honour, but can I check that? There are differences now with the reorganisation that has occurred between Divisions 1 and Division 2, but the relevant time I think it was concurrent.

Your Honours, can I turn first then – I hope fairly efficiently – briefly to ground 1 of our notice of appeal, which concerns the effect of the judge’s order in the period between it being made and set aside. So, this is Commonwealth ground 1. I start by frankly recognising that the Federal Circuit Court was obviously established as an inferior court. The orthodox starting point is that an order of an inferior court affected by jurisdictional error is void ab initio. So, I am not, in developing this ground, taking on that orthodox proposition at all.

EDELMAN J: You are not taking it on as a matter of law, but if in Australia or elsewhere the application of that principle has become something of an anachronism, that may be something that informs the interpretation of provisions like section 17.

MR DONAGHUE: That is true, and it might also inform the way the common law defence is developed. I accept that that is so, but I made the submission I just made because there are numerous statements in this Court to the effect that the usual position of an inferior court is that its orders are not valid until set aside, and I am not seeking to challenge that as a general proposition.

BEECH-JONES J: And that was the foundation ‑ ‑ ‑

GORDON J: It depends on what you mean by “inferior court” as well. There is at least the passage of Justice Gageler’s in Kable (No 2) which says that the label itself might be misleading. So, it is a difficult thing, as a proposition, to accept now, I think, as a general statement applicable. It may not affect your argument, Mr Solicitor, but it is a proposition which is at least open for some qualification.

MR DONAGHUE: I accept that that is so. There are evident dangers which the Court has identified on numerous occasions with transplanting these ideas that have their origin in a different legal system in a different time into the Australian legal context. Also, however, sometimes that transplantation has occurred because the Parliament has used words like “superior court of record”, and there are cases where, the Parliament having used those words, this Court has been called upon to interpret what they mean and it has held that they bring with them some of those historical features of a superior court of record in the United Kingdom. What I am – sorry, your Honour.

GLEESON J: Sorry, Mr Donaghue. These particular orders did not command anyone to do anything, but if they had, the fact that they were void ab initio does not mean that the person to whom they were directed had a choice about whether to comply with them.

MR DONAGHUE: Your Honour, we agree that in the real world the officers did not have a choice and, indeed, it would be quite a startling state of affairs to have had the events that played out in Judge Vasta’s court play out as they did, and then to have had the MSS security guard saying, sorry, your Honour, we just do not think you have acted fairly; we think you have made a jurisdictional error, we are not going to do what you have just ordered us to do. If that was the law, then that is an extraordinary state of affairs.

The problem – and the problem to which Mr Stradford points – is that if the orders are void ab initio, then when the guard tries to rely upon the orders in defence to false imprisonment, Mr Stradford can collaterally challenge them in the false imprisonment proceeding and say, well, they do not help you at all because those orders are invalid from the outset and so they can provide no authority.

Our argument on ground 1, which is the narrowest issue on the appeal and which is sufficient for us to win the appeal, is to say that, whatever the position for other orders of an inferior court, when the Circuit Court makes contempt orders under section 17 of the Federal Circuit Court Act, those orders, like contempt orders made by this Court, are valid until they are set aside.

So, that is a feature of that particular kind of order made by the court, and in support of that we submit that while it is clear that one way that Parliament can make a court’s order valid until set aside is by designating it in its constituting statute as a superior court of record, that is not the only way that orders can be given that effect. Chief Justice Latham said as much years ago in Cameron v Cole in a case I will not take your Honours to because I am only going to read one sentence. The Chief Justice said at 585:

An inferior court such as a county court may be made a superior court for a particular purpose.

Now, the respondent, as we understand it, does not contest that proposition. The primary judge did not contest it. You see that at 352. The contest is not about that possibility, but about its application to this particular statute.

GORDON J: So, are we not driven back, then, to the construction of the statute?

MR DONAGHUE: We are, and that is what I am about to come to. Can I, just before coming to the statute, ask your Honours to really note one case. It is not exactly an authority in the ordinary sense because I am not really relying upon the reasoning, I am just relying upon a couple of sentences that explain how the court gets to the result. The case is Day v The Queen [1984] HCA 3; (1984) 153 CLR 475. It is in volume 3, tab 26. I am taking your Honours to it as an example, like the example mentioned in Cameron v Cole, of an inferior court being given the character of a superior court for a particular purpose.

So, Day is about a sentence of imprisonment imposed by the District Court in Western Australia, which was an inferior court. Your Honours can see that order being referred to on page 477 in the joint reasons at about point 3. The order was made pursuant to section 42 of the District Court of Western Australia Act and that provision, which is not conveniently set out in the report but is a very simple provision, simply said:

the Court has all the jurisdiction and powers that the Supreme Court has in respect of any indictable offence.

So, this court – the District Court, an inferior court – has all the jurisdiction and power of the Supreme Court in respect of an indictable offence. What the Court said about that, in the middle of page 479, halfway down, there is a sentence right in the middle of the page:

As is the case elsewhere, the sentence being imposed by a superior court is itself sufficient authority for its execution . . . For this purpose, the District Court is a superior court –

Citing section 42. So, it is an example of a court that is undoubtedly, normally an inferior court being able to make an order here that was sufficient authority for its own execution because that inferior court had been given all the jurisdiction and power of the Supreme Court with respect to a particular category of matter – indictable offences.

This argument that I am advancing stands or falls on whether your Honours accept, as a matter of construction, that section 17(1) of the Federal Circuit Court Act is doing the same thing. So, taking an inferior court and giving it, for particular purposes, the same power as a superior court.

BEECH-JONES J: So, does it not require the next step about the operation of Part XIIIA and XIIIB?

MR DONAGHUE: No. So, I then have to answer that because that is put against me, but I first need to clear the hurdle – that is what 17(1) is doing. If your Honours could go to the Federal Circuit Court of Australia Act 1999, it is volume 1, tab 4 in the authorities.

GAGELER CJ: We are working from extracts.

MR DONAGHUE: Okay. So, I am going to take your Honours to two sections – section 8 and section 17. Section 8 is the constituting provision, and 8(3) says:

The Federal Circuit Court of Australia is a court of record and is a court of law and equity.

In the context of the Federal Court or the Family Court, they would have said a superior court of record. So, it is not created, in terms, as a superior court, but section 17, which is the key provision – section 17(1) says:

The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court –

That formulation will be familiar to your Honours. Indeed, in this Court, I think ‑ ‑ ‑

GORDON J: Section 24.

MR DONAGHUE: ‑ ‑ ‑ the contempt provision says the Court has the same power as the High Court of England and Wales. It is a familiar ‑ ‑ ‑

GORDON J: So, it is the same provision that flowed through from section 24 and then picked up by the Family Court Act as well.

MR DONAGHUE: Section 35 of the Family Court Act is almost identical, so, yes, that is right, your Honour. Our submission about that is fairly simple. It is a provision conferring power on a court. By application of very well‑known interpretative principles, a provision that confers power on a court is to be read as broadly as text and context permits without unexpressed limitations – that is Shin Kobe Maru, amongst many other cases that we have given your Honours the citations in writing.

It is, undoubtedly, the case that one of the effects of that provision is to broaden the kinds of conduct that can be punished for contempt. So, as your Honours know, an inferior court traditionally can only punish contempts committed in the face of the court. One of the things that 17(1) does, in our submission, is to extend the range of matters so that, for example, the Circuit Court can punish non‑compliance with its orders.

Our friends accept that 17(1) does that work but, as we understand it, they suggest that that exhausts the work that is done by 17(1), and our point is, why does it exhaust the work if one is not subjecting the provision to unexpressed limitations? When one looks at the contempt power of this Court, not only does it have the full breadth of subject matters but an order made by this Court is one that everybody knows must be complied with unless and until that order is set aside. If that is not the case with the Circuit Court then, in our submission, the Circuit Court does not exercise the same power, it exercises a ‑ ‑ ‑

EDELMAN J: Well, it is an express conferral of the same power, but you say an implied conferral of the same jurisdiction. It is the authority of the order that has to be picked up by 17(1) as well.

MR DONAGHUE: It is the authority of the order. I would not use the word “jurisdiction”, your Honour, just because it might be difficult to pin down exactly what work that word is doing here. Section 17(1), in my submission, is not a conferral of jurisdiction in a section 77 of the Constitution sense, that the court had the conferral of jurisdiction with respect to the matrimonial clause and we are then asking questions about what powers were available to it in the exercise of that jurisdiction.

I accept what your Honour says to me. I need it to be the same authority – that the order has to carry the same authority – but, in my submission, that is not a stretch to say that when one is giving the Circuit Court the same power, it would be materially less efficacious if court officers are required – as I put in my exchange with Justice Gleeson earlier – to say, first we are going to consider for ourselves whether or not we think you actually had authority to do this. But that consequence is avoided if one says, well, Parliament just put the court in relevantly the same position as a superior court.

GORDON J: Is it any more other than to say that when it talks about the “same power” in the opening line, it is to be read as the power:

possessed by the High Court in respect to contempts of the High Court.

In other words, the power exercised by it is as a superior court.

MR DONAGHUE: Yes, but I do not think it is any more complicated than that.

GORDON J:

to punish contempts of its power and authority as is possessed –

Is that the way we read it? That is, one just, in effect, brings up from the bottom of the provision and injects into the opening words of power that aspect of the High Court’s power and it is given to the Circuit Court.

MR DONAGHUE: To the Circuit Court. Yes, I embrace that, your Honour.

GAGELER CJ: Would you read section 35 of the Family Court of Australia Act in the same way as having those dual purposes?

MR DONAGHUE: We would, yes. It may be less controversial in that context because one is dealing with a superior court already, so it would naturally be read as having the same effect as the orders of this Court, but you would construe the provision in the same way, yes.

Now, it is put against us that that reading is defeated by section 17(2) because 17(2) makes (1) “subject to any other Act”, and that seems to be the mechanism by which Parts XIIIA and XIIIB of the Family Law Act are brought in as a limit, and this is the ‑ ‑ ‑

EDELMAN J: Just before you move on to that, is there anything in the context of section 17(1) that says anything about the breadth of this word “power” or whether it brings with it a notion of – one wants to use the word “authority” rather than “jurisdiction”. It is the dimension of jurisdiction that is concerned with authority over the person, rather than authority over subject matter or place. For example, the context includes the Part 3 as entitled jurisdiction, and every other provision seems to be concerned with jurisdiction in the sense of authority.

MR DONAGHUE: Well, that, as I think your Honour is putting to me, might contextually support the reading that I am urging. We had not identified that, but I can see some force in that, your Honour.

GORDON J: The reason why that might be important is because the whole of the Part deals with both the grant and exercise of jurisdiction. So, the first few provisions deal with, in effect, conferring jurisdiction and then the balance of the provision contains specific provisions arguably directed at the exercise of that jurisdiction and the manner in which they might be exercised.

MR DONAGHUE: But not – and I do not understand your Honour to be putting this to me – in a way that points against the authority coming with section 17(1). Yes.

GORDON J: No, on the contrary. If one then looks at sections 17, 18, et cetera.

MR DONAGHUE: I embrace all of that, your Honours.

BEECH‑JONES J: Mr Donaghue, is this right? This is the only power that this Court and the Family Court have that would involve punishing people – fines, gaoling, that sort of thing. You may take that on board.

MR DONAGHUE: I will have to check that. Can I check that, your Honour? I think that may well be right, for this court – for the Circuit Court, yes.

EDELMAN J: One final question is: are there any other uses of the expression “the same power” or “the same power to punish” other than provisions such as section 35 of the Family Court Act, or section 24 of the High Court Act? Is that expression used elsewhere?

MR DONAGHUE: The only context in which I am aware of it being used is where a court, or sometimes a tribunal, is in this kind of context, to try to, as a shorthand, pick up a body of powers exercised by a court and to make them available to a different body. So, it is ‑ ‑ ‑

GORDON J: You mean like the Commonwealth AAT?

MR DONAGHUE: Yes, the Commonwealth AAT ‑ ‑ ‑

GORDON J: It is different language, though, I think.

MR DONAGHUE: Yes. There are variations, though the same power is sometimes used, we would submit, with materially different effect to try to give particular kinds of powers to tribunals. So, the respondent puts against us that if our argument is right, then Boilermakers was wrongly decided, because there was a provision that talked about conferring the same powers upon the body at issue in that case. We would say what we are dealing with here is a question of construction.

The way that you construe a provision that confers power on a court is different from the way that you construe a provision that confers power on an administrative tribunal, so that acceptance of our argument here – it does not follow that you would construe a provision purporting to confer the same powers as the High Court on an administrative tribunal as carrying with it the consequences that the orders were valid until set aside. That would be a different argument.

BEECH‑JONES J: I think they often get the same immunity, if I recall correctly.

MR DONAGHUE: Quite commonly the same immunity, yes. That would not carry the same consequences. That is a very common formulation across both, and inferior courts are commonly given the same immunity as superior court judges as well.

GAGELER CJ: Did that happen here?

MR DONAGHUE: Sorry, your Honour?

GAGELER CJ: Did that happen here?

MR DONAGHUE: It has now.

GAGELER CJ: But it did not at the time.

MR DONAGHUE: But at the relevant time, no, which is why we are here on the judicial immunity point.

GAGELER CJ: In construing this Act, it seems to have left out some common features of other statutory regimes. Do we take that into account? Or do we give a wide meaning to that which appears?

MR DONAGHUE: With respect to the contempt question that I am now addressing, it did not leave out; it replicated exactly what one found in the Family Law Act with respect to the Family Court. There is ‑ ‑ ‑

GAGELER CJ: Where, of course, the consequence followed anyway from the status of the Family Court as a superior court.

MR DONAGHUE: Yes, indeed. That kind of provision, consistently with this Court’s judgment in Calina, has been said, in effect, to be declaratory of the position that would operate with respect to a superior court. Our submission is that when one then replicates the same power for an inferior court, one should construe it as producing – intended to produce – the same result as operates with a superior court, not least because that is textually open for the reasons that I have just endeavoured to develop, but because it also produces a sensible outcome, in that proper effect can be given to the orders that are being made. They do provide a defence to people who are in accordance with them. There is no question that court officers are required to comply with them without making their own judgments.

Your Honours, this was all said to be not open to us because of what was said to be a code in the Family Law Act. Can I ask your Honours to turn to the Family Law Act 1975 provisions. I am going to Part XIIIA, which may be in volume 2 if your Honours have two hard copies. I should say in relation to this argument that the Commonwealth put its case below in two ways, and we are only repeating one of them before your Honours.

The first way, which we are not pressing in this Court, was that section 17 provided a completely parallel source of contempt power that could be exercised without regard to the limits in XIIIA and XIIIB. The primary judge rejected that argument on the basis that it would render the limits otiose, and we do not challenge that conclusion. So, a large part of the reason that his Honour found against us was on the basis of an argument that we are not continuing to press.

Our alternative argument, which is the argument we do press here, is that it is quite possible to read section 17 and Part XIIIA and Part XIIIB together on the basis that what Parts XIIIA and XIIIB do is regulate the exercise of the contempt power of all of the different courts that can exercise jurisdiction under the Family Law Act, which of course includes not just the Circuit Court, but the Family Court itself, a superior court. It includes the Northern Territory Supreme Court. So, there are a couple of superior courts that exercise jurisdiction under the Family Law Act, and there are a number of inferior courts.

We submit that what Parts XIIIA and XIIIB are doing in both cases is regulating the exercise of the contempt power such that if the court makes a contempt order in breach of the requirements of those two Parts, that will provide a basis upon which the order can be set aside on appeal. So, we are not saying you can ignore the limits in XIIIA and XIIIB. What we are saying, though, is that XIIIA and XIIIB tell you nothing about the validity of the order until it is set aside. They provide a basis upon which the order might be set aside if they are not followed, but they do not tell you anything.

If that be wrong, and the primary judge held that it was wrong, then that would mean that the effect of XIIIA and XIIIB was that the Family Court lost the power to make orders that were binding until set aside, because the ‑ ‑ ‑

GORDON J: Well, maybe not – it may just be that you end up with inconsistent results.

MR DONAGHUE: Your Honour, I say “lost” because if XIIIA and XIIIB really are a code, and they really do not allow an order to be valid until set aside, then that should be the case for both superior and inferior courts.

BEECH-JONES J: But that would depend on the status of the court. So, the argument would be, would it not, that the Family Court has its status as a superior court and therefore its order under this has that status, and the Circuit Court has its status and its order under this has that status – that that would still – not necessarily follow, would it not?

MR DONAGHUE: In my submission, one can produce that different consequence if one recognises that Parts XIIIA and XIIIB are not about the authority of the order at all – they are not about whether it is binding until set aside. They just do not speak to that question.

BEECH-JONES J: I see.

MR DONAGHUE: So, you answer that question by looking at the status of the court or the effect of section 17, but what 17(a) and (b) are doing – so if your Honours have 17 – my apologies, your Honour. What XIIIA and XIIIB are doing is something different. So, if your Honours go to Part XIIIA and look at section 112AD, you will see “Sanctions for failure to comply with orders”, and the provision says in (1):

If a court having jurisdiction under this Act –

under the Family Law Act, possibly a superior, possibly an inferior court:

may make an order for the imposing . . . sanctions –

of the kind listed in subsection (2), and then you have a variety of kinds of sanctions that can be imposed under subsection (2), and you see in (2)(d):

subject to subsection (2A) –

the court may:

impose a sentence of imprisonment on the person in accordance with section 112AE.

STEWARD J: Is that the power that was exercised here, purportedly? Or was it under 112AP?

MR DONAGHUE: Judge Vasta did not refer to these provisions at all.

STEWARD J: No, I know he did not. That is why I am asking the question.

MR DONAGHUE: So, well – I cannot tell your Honour that it was happening under any of these. These provisions should have limited what Judge Vasta was doing when he was thinking about imprisoning Mr Stradford.

STEWARD J: You say these regulate the circumstances ‑ ‑ ‑

MR DONAGHUE: They regulate it and ‑ ‑ ‑

STEWARD J: ‑ ‑ ‑ in which an order can be made, but they do not go to the quality of the power of the order that is then made.

MR DONAGHUE: They do not.

STEWARD J: Yes.

MR DONAGHUE: So, one could have a ground of appeal against Judge Vasta’s orders that says he imposed a sentence of imprisonment in complete disregard of 112AD and AE, and you would expect that ground of appeal to be allowed. But until it is allowed, in our submission, the order, like an order of this Court, continues to provide authority for its own execution. And your Honours will see in 112AE, over the page, the sentence of imprisonment must be for 12 months or less, and under subsection (2) ‑ ‑ ‑

GORDON J: No, that is the provision which itself identifies a distinct error in what was done by Judge Vasta.

MR DONAGHUE: I am making no attempt to defend what was done by Judge Vasta. My submission is simply that these provisions, which I accept did limit the power under section 17, do not tell us anything about whether it was valid until it was set aside. Really, I think your Honours have my point.

BEECH‑JONES J: Is the only arguable provision under Part XIIIA that actually grants a power 112AD(1)?

MR DONAGHUE: It is a question that I have been grappling with, your Honour, because even there ‑ ‑ ‑

BEECH‑JONES J: I said “arguably”.

MR DONAGHUE: Arguably – I think the answer to that is correct. Perhaps also – can I just check one provision, your Honour.

GAGELER CJ: Perhaps (2)(d) – or not?

MR DONAGHUE: Section 112AD(2)(d) and arguably also 112AP(2), which is in Part XIIIB. Although, again ‑ ‑ ‑

GORDON J: Did you say 112AE(2)?

MR DONAGHUE: No, 112AP(2).

BEECH‑JONES J: That is Part XIIIB – I was just asking about A.

MR DONAGHUE: You are asking about XIIIA, yes.

BEECH‑JONES J: Yes, XIIIA.

MR DONAGHUE: Mostly the language very comfortably accommodates my, it is regulating a power submission, but there are a few provisions of which – AD(1). Your Honour the Chief Justice put to me AD(2), did your Honour?

GAGELER CJ: Subsection (d).

MR DONAGHUE: Subsection (2)(d)?

GAGELER CJ: Yes.

MR DONAGHUE: Yes. Well, certainly, if the court did not already have the power to impose a sentence of imprisonment, I think I would have to accept that by reason of AD(1) and (2) it would acquire that power. So, yes.

EDELMAN J: Your submission about 112AD(1), (2) and 112AP(2) is that they are declaratory provisions of a power that exists elsewhere.

MR DONAGHUE: They are at least that, so that where one has a parallel power like 17 or 35 of the Family Law Act, that is so. So, they are either declaratory or they are a parallel power. If there were to be – and because there are so many inferior courts that can exercise jurisdiction under this Act, I confess we have not checked them all – an inferior court that did not have the power to impose one of the sanctions in 112AD, then I would accept that it is more than declaratory, it is conferring. That is why I have answered the Chief Justice and Justice Beech‑Jones as I have.

GORDON J: Mr Solicitor, you just said then it is a parallel source of power, but I had thought you had abandoned that argument, because it was the argument that was the first limb of what had been put below.

MR DONAGHUE: Section 17 is a parallel force of power but regulated – but subject to the restrictions or limits in XIIIA and XIIIB

GORDON J: I see, that is the qualification that is put on the submission that was made below.

MR DONAGHUE: That is right. I am not suggesting I can point to 17, exercise section 17 and disregard the limits in AD. That is the submission that we are not pressing.

The legislative history, we submit, supports our argument. We have traced it in writing at paragraphs 25 to 29, and so I will not take your Honours back to it, particularly given the time. The basic point is these two divisions, XIIIA and XIIIB, were the product of a Law Reform Commission recommendation in 1987, they were then enacted in 1989. The Law Reform Commission specifically recommended repealing all of the existing contempt‑type powers, including section 35, of the Family Law Act.

When Parliament responded, it largely implemented the ALRC’s recommendation but specifically did not implement the repeal of section 35. So, in our submission, what the legislative history shows is a deliberate decision to leave a source of power in materially indistinguishable terms to section 17 to operate alongside paragraphs XIIIA and XIIIB. So that, we submit, rather strongly points against the idea that found favour with the primary judge that those two Parts constitute a code and leave no room for the exercise of power under section 17(1).

BEECH-JONES J: Mr Donaghue, you may be coming to this, I am sorry to ask the details of how this works. Is XIIIA subject to XIIIB so that, for example, if you had a contravention of an order of the court that is a flagrant challenge, you can apparently commit the person to prison under (4), and you would not be subject to the 12‑month limit or anything of that kind in 112AE?

MR DONAGHUE: That is my understanding, your Honour. So, in my submission, if your Honour has Part XIIIB in front of you, 112AP(1), it:

this section applies to a contempt –

that either:

(a) does not constitute a contravention of an order –

Part XIIIA is about contempt involving contraventions of orders, so, Part XIIIB then has a different subject matter – everything that is not contravention of an order or, (b), contraventions of an order of a “flagrant” kind. So, if you have very bad contraventions of an order you can deal with them under (b) without the limits that you find in (a). Generally speaking, if your contempt is not contravention of an order, you are limited to (a).

BEECH-JONES J: And (2), which you have pointed to, you said declares this power to punish:

In spite of any other law –

suggesting that there might be some other law denying it, or not conferring it, or something like that.

MR DONAGHUE: Probably Part XIIIA.

BEECH-JONES J: Yes.

MR DONAGHUE: Your Honours, I have spent a lot longer than I was supposed to on ground 1, so if I might move on to ground 4, the judicial immunity point, and ask your Honours to turn back to the core appeal book and turn to page 342. You can see on this page a heading near the top “Conclusion as to the scope of judicial immunity of inferior court judges”. In paragraph 342, his Honour says that there are:

principles that, in my view, emerge from the authorities . . . may be summarised as follows.

Then you see in the four following paragraphs, four principles that his Honour draws out of the cases as he has analysed them. Given the time, I will not read; I will sketch briefly. The first, in 343, is a principle about:

judicial immunity, where the judge . . . did not have “subject‑matter” jurisdiction –

That is what he is talking about in the first paragraph. That is not this case, and his Honour did not find that it was this case – Judge Vasta did have subject matter jurisdiction. It was the next three principles that were important to the judicial immunity conclusion that his Honour reached, and you can see at 344:

Second, in certain exceptional circumstances, an inferior court judge may be held liable, and will not be protected by judicial immunity, where the judge, despite having subject-matter jurisdiction in the proceeding, nevertheless makes an order without, or outside, or in excess of the jurisdiction –

Then 345 and 346 give some examples of those exceptional circumstances. Our basic point about that aspect of his Honour’s judgment is that he was wrong to find that there is an exceptional circumstances limit on judicial immunity where a judge acts with jurisdiction. If we are right about that, then the detail of what his Honour said constitutes the exceptional circumstances does not matter. There is absolute immunity where an inferior court judge acts with subject matter jurisdiction, and that is the point that I am going to seek to develop.

As your Honours will have seen from our written case, also reflected in our outline of oral submissions, we put the judicial immunity argument in two ways, and I am going to develop them simultaneously if I can, given the interests of time, in the reverse order to the way that we put them in writing, because logically, that is how they fit together better. The two arguments are those you can see summarised in paragraphs 6 and 7 of our oral outline of submissions.

Our primary argument is that the common law of Australia no longer recognises a distinction between the civil immunity of superior and inferior court judges. The Australian authorities, at least since Sirros v Moore, support in the proposition that all judges enjoy immunity from civil suit with respect to conduct in the exercise of their judicial functional capacity. Your Honours will note that there is no “within jurisdiction” formulation in that. All judges are immune for conduct in the exercise of their judicial functional capacity. We submit that the Australian law already supports that, but if we are wrong about that, that your Honours should develop the law to take that position. That is our primary argument.

Our alternative argument is that even if the common law does still draw a distinction between superior and inferior court judges in the immunity context, inferior court judges enjoy absolute immunity with respect to matters within their jurisdiction – using the word “jurisdiction” in the particular sense that I am about to develop – and that therefore there is no exceptional circumstances qualifier on judicial immunity within jurisdiction.

Can I say, immediately, something about what the word “jurisdiction” means in a judicial immunity context? The authorities are filled in this particular context, as in many other contexts, with warnings about the wide range of meanings that that word can bear and how important it is to be precise about what it means in this context. In our submission, for a very long time, going back hundreds of years, it has been clear – and one of the cases, I will not take your Honours to it, is Gwinne v Poole from 1692, quoted in Sirros in paragraph 147 at g if your Honours want to read the reference, which I will come to in due course.

There, Baron Powell referred to inferior courts sometimes being limited by jurisdiction as to their subject matter, sometimes with respect to persons, sometimes in respect of place. In the old authorities, your Honours see examples of all of that. In the famous Marshalsea case, the court had jurisdiction over members of the King’s household, so it had jurisdiction over persons of a particular category. That court purported to exercise jurisdiction over people who were not members of the King’s household, it had no jurisdiction in the relevant sense.

In Houlden v Smith, which our friends rely upon, a county court judge for the Spilsby area caused a summons to be served on someone in Cambridge, which was outside the Spilsby area. The court had no jurisdiction over people in the place where it purported to exercise that jurisdiction, so it had no jurisdiction in the relevant sense.

But what this word evidently does not mean – and this is denied, or recognised, in numerous authorities – is that it is not about what we would now call “jurisdictional error”. A court does not lose jurisdiction in the relevant sense by reference to the way it exercises its jurisdiction, no matter how big an error it might make in doing so – indeed, your Honours will see, when I come to Sirros shortly, that within jurisdiction it is said that even the judge acting with malice does not deny immunity. If malice is not denying immunity, it is hard to see how anything else could. The question can be determined entirely independently of what the judge actually does in the purported exercise of jurisdiction, whether they have jurisdiction in the relevant sense.

The case that is most often cited in Australia in relation to this point is actually a New Zealand decision called Nakhla v McCarthy, and I would ask your Honours to go briefly to that case. I would ask your Honours to go briefly to that case: Nakhla v McCarthy [1978] 1 NZLR 291, it is volume 7, tab 74. Your Honours do not really need to worry about what it was about.

When you are finding it, I will note simply that it was a rather strange case where a page of the judgment of a superior court went missing, and it was the page that dealt with the particular ground of appeal. The aggrieved litigant then, when the court said, we are terribly sorry this has happened, we would like to put the page back in again, said no and they accused the judge of judicial misconduct and sought to sue – unsuccessfully, your Honours will not be surprised to hear.

But the discussion, which is then picked up in a number of Australian authorities, including in this Court, of “jurisdiction”, appears from page 300, in the judgment of Justice Woodhouse for the court. If your Honours look about line 5 – there are line numbers down the right‑hand side:

Thus the matter of jurisdiction is the first and central issue in the case; and the initial need is to understand what is meant by the word “jurisdiction” as it is used in the various cases which have been concerned to define the circumstances under which judicial immunity will be applicable. So far as we are able to understand his case the plaintiff accepts the age-old principle that whatever the rank of a judge, whether his court is a superior court or a court of limited jurisdiction, his exemption from civil liability is absolute in respect of all of his acts done within the jurisdiction that belongs to him.

You will see statements to a very similar effect in Sirros when we come to it. What is the sense in which “jurisdiction” is used? That is discussed, then, from the middle of the page. There is reference to Garthwaite v Garthwaite, Lord Justice Diplock, as his Lordship then was, identifying two different senses: a narrower and wider sense. The narrower sense, you see in the quote from line 31:

‘jurisdiction’ of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief –

which is a modern statement of the kind one sees in the Gwinne v Poole Baron Powell statement I mentioned earlier. Going over the page, it is that narrower sense in which the word is relevantly used, and you see that on 301 from about line 12.

GAGELER CJ: If you translate this to a Chapter III context, I suppose you would say that it is jurisdiction with respect to the matter, however the matter happens to be defined by the Commonwealth Parliament.

MR DONAGHUE: Yes, indeed.

GAGELER CJ: It can be defined in a range of different ways.

MR DONAGHUE: Yes, so exactly, one would look at the 75 and 76‑type lists of categories, and if the Court has jurisdiction with respect to the matter as identified, and as your Honour says, sometimes it is persons, sometimes it is parties, sometimes it is remedies ‑ ‑ ‑

GAGELER CJ: Sometimes it is other things.

MR DONAGHUE: ‑ ‑ ‑ sometimes it is other things, but it does not then matter how egregiously you err in the exercise of jurisdiction with respect to the matter, from an immunity point of view. I will not read it to your Honours, but I commend to you, from lines 12 through to about line 35, expressly saying, at lines 31:

important in the context of the present case because we think that the whole action may have proceeded on the wholly erroneous notion that even when a judge has properly accepted a case the mere method he adopts to deal with it may result in his acting wholly without jurisdiction. As Roper J rightly said in his judgment, “‘Authority to decide’ is the test, not the mode of decision nor the manner in which the powers . . . have been exercised or not exercised”.

And that is picked up in the authorities. Your Honours will also see in the middle of that page an approving reference to Lord Denning in Sirros, the passage about not losing immunity because of:

gross error or ignorance . . . envy, hatred and malice –

and again, that is repeatedly picked up. The difference sometimes drawn in the authorities between the immunity of superior and inferior court judges is a difference directed to matters outside jurisdiction, not to matters where the court has what I will call, for convenience, subject matter jurisdiction as a label for what you see described in Nakhla. It is a difference, historically, seemingly referrable to the notion, which was questionable in England but which has no place in Australia, that there are courts of unlimited jurisdiction.

So, pre the judicature Acts in the UK, it was doubtful that the superior courts in the UK were truly courts of unlimited jurisdiction. I do not need to get into that; that is a topic discussed in some detail by Lord Justice Buckley in Sirros. But in Australia, of course, and I will not take your Honours to it, but in New South Wales v Kable (No 2), the Court made a point of emphasising that there can be no unthinking, transplantation to Australia, about what was said in England concerning superior courts, and that there is, paragraph 30, no Australian court of unlimited jurisdiction, so that once it is accepted that whether you are a superior or an inferior court in Australia, you might act without jurisdiction in the relevant sense.

The main basis for distinguishing between the immunity of superior court judge and an inferior court judge is lost, because both might act within jurisdiction, and both might act without jurisdiction. That feature of our constitutional framework, in our submission, strongly supports the developments that have occurred in England in Sirros and later in denying any different rule for superior and inferior court judges.

BEECH-JONES J: Mr Donaghue, no part of this argument proceeds on any distinction, as I understand it, between a Chapter III – I use the word “inferior” court, and a State inferior court, does it?

MR DONAGHUE: It does not. In my submission, the principles should be the same. The other reason we say that, in addition to the fact that all Australian courts are courts of limited jurisdiction, is that – as you see in the authorities which I am about to come to – clearly the main rationale for judicial immunity identified in the authorities is judicial independence: that judges should be able to discharge their functions without the threat of vexatious allegations being made against them with respect to the way their functions are exercised.

That rationale, in my submission, applies equally to superior courts and inferior courts. This Court recognised in Bradley that the baseline requirements of independence and impartiality are prerequisites of all Australian courts, not just superior courts. And if that be so, unless there is some persuasive reason to explain why superior court judges need to be free from vexatious litigation in order to be independent, but inferior court judges do not need to be free, the independence rationale points very strongly against drawing a quite artificial demarcation between the immunity of one and the other.

GORDON J: It is a bit broader than just vexatious litigation. It is also collateral litigation, as well, which may not be vexatious.

MR DONAGHUE: It might not be vexatious. That is true. The fact that there can be no litigation is what ensures that judges – so, it might actually be justified litigation in some cases, but the authorities say it be better that the occasional deserving claim fail so as to preserve the institutional independence of the judiciary.

GAGELER CJ: We are concerned here with the common law immunity, are we not? So, it is about the common law of Australia ‑ ‑ ‑

MR DONAGHUE: That is right.

GAGELER CJ: ‑ ‑ ‑ which has a capacity to develop. It may have looked rather different, if you go back before the 1990s, when lower courts in many States and Territories were constituted by lay magistrates. It is just possible that the drivers of the policy factors that inform the immunity, or lack of it, may have looked quite different at an earlier stage in our development. Now that we have a professional judiciary at all levels, it is perhaps quite different.

MR DONAGHUE: Your Honour, I accept that that historical development is informative. It was one of the matters that was looked at by the Court of Appeal in Sirros, because, of course, they have the same development going – but even as long ago as 1975, the Court of Appeal was prepared to say, while historically this distinction might have been justified by the fact that at the inferior court level, a justice of the peace may not have had the professional characteristics that were regarded as appropriate to confer an immunity of that kind, the professionalisation of the judiciary in that context – even bearing in mind that at that point in English development, not everyone had the full level of professionalisation that we have now achieved in Australia – the development there was thought to have gone far enough so that the historical distinctions no longer held good.

In my submission, whether or not your Honours would have reached the same conclusion as to 1975, for at least some decades now, the notion that – well, that there is clear professionalisation at the District Court level and, indeed, at the Magistrates Court level throughout Australia. In my submission, there is no solid factual basis for distinguishing – and the judicial independence rationale, which, as I have said, was accepted in Bradley, whereas your Honour will recall there was some tracing of that professionalisation that your Honour’s question refers to, including, I think, that magistrates in the Territory did not require legal qualifications and tenure of any particular kind until quite late in the piece – does not mean that there is not a need for common law principles that serve important systemic roles in relation to superior courts to be equally allowed to operate to provide those systemic protections to inferior courts.

Your Honours, I note the time. I was about to take your Honours to Sirros, so that might be a convenient time.

GAGELER CJ: Yes, we will take a 15‑minute adjournment.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

MR DONAGHUE: Your Honours, in the time remaining to me, I propose to take your Honours as efficiently as I can through the main cases that touch on the judicial immunity ground, starting with Sirros v Moore [1975] QB 118, which is in volume 7, tab 94. The factual background was a Turkish citizen who was convicted and fined and recommended for deportation by a magistrate, but the magistrate directed that he not be detained, pending the Home Secretary’s decision on the deportation recommendation.

Mr Sirros, acting for himself, appealed against the recommendation for deportation to the Crown Court, and the Crown Court held – erroneously, as it turned out – that it did not have jurisdiction to hear the appeal, so it dismissed the appeal against the deportation recommendation. Mr Sirros then got up to leave the court room. As he was leaving the court room, the judge saw him leaving and directed a police officer to detain him. As a result of that direction, Mr Sirros was detained for one and a half days until he obtained habeas, and Mr Sirros then sued the judge and the police officer who detained him for assault and false imprisonment. The court held that the judge did have subject matter jurisdiction – that is, he could have had jurisdiction on the appeal – but the judge had not adopted appropriate procedures. So, the order upon which the plaintiff was taken into custody was invalid.

We say that there is a clear analogy to Judge Vasta’s failure to comply with Parts XIIIA and XIIIB here in that the judge made an order with respect to a matter within subject matter jurisdiction but without complying with applicable limits. But the important point, for present purposes, is that this is a case where a judge of what was for relevant purposes an inferior court made an invalid order but was nevertheless held entitled to judicial immunity. So, the inferior court judge gets immunity for an invalid order made within jurisdiction.

The leading judgment is Lord Denning. If your Honours can go to page 132, you see in the middle of the page the heading “The liability of the judge”. His Lordship deals with the question first by dealing with “Acts within jurisdiction” and then over the page “Acts without jurisdiction”. For acts within jurisdiction, there is a passage that has been quoted many, many times since, starting:

Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him . . . The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy ‑ ‑ ‑

GAGELER CJ: What happened in 1613? Do we know?

MR DONAGHUE: I am not sure, actually, your Honour. I think it was one of the very early cases – I think.

GAGELER CJ: I see.

MR DONAGHUE: It was Marshalsea’s Case. I will not read it, but just above paragraph G, the judicial independence rationale is identified by Lord Denning. There is a quote from Lord Tenterden supporting that judicial independence rationale. Then at H, Lord Denning says:

Those words apply not only to judges of the superior courts, but to judges of all ranks, high or low.

So, that absolute immunity for matters within jurisdiction applies to everyone. Then his Lordship turns to acts without jurisdiction, and it is here that he draws a distinction between inferior courts – and there is a discussion of Marshalsea and some of the other cases, and then over the page, at 134, superior courts, because it is there where historically there was thought to be a distinction between matters within or without jurisdiction. Then, at 136, under the heading “The modern courts”, Lord Denning says:

In the old days . . . there was a sharp distinction between the inferior courts and the superior courts. Whatever may have been the reason for this distinction, it is no longer valid. There has been no case on the subject for the last one hundred years at least. And during this time our judicial system has changed out of all knowledge.

Skipping a sentence:

In this new age I would take my stand on this: as a matter of principle the judges of superior courts have no greater claim to immunity than the judges of the lower courts. Every judge of the courts of this land—from the highest to the lowest—should be protected to the same degree, and liable to the same degree. If the reason underlying this immunity is to ensure “that they may be free in thought and independent in judgment,” it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially.

In our submission, that reasoning has a great deal to commend it and it has been referred to with approval many times, including in this Court in the cases that I am about to take your Honours to.

GORDON J: Do you agree – I know you have stopped there, and I assume that is because of time, is it, rather than the balance of the paragraph which you adopt?

MR DONAGHUE: Well, I stopped there partly because of time and partly because his Lordship goes on to – and particularly I am referring to the end of the paragraph E:

Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.

That part of the judgment is somewhat controversial because it has been said to inappropriately narrow the immunity of superior court judges. And I am not going to have time to take your Honours to it, but there is a Court of Appeal case we have given your Honours called Rajski which discusses some of this. There was a spate, if I can call it that – a series of cases against Supreme Court judges in New South Wales where ‑ ‑ ‑

BEECH‑JONES J: This is Rajski?

MR DONAGHUE: Sorry, Rajski, yes.

BEECH‑JONES J: Yes.

MR DONAGHUE: There were a number of them, they all failed, but there was a concern expressed in some of those judgments that this qualification had led people erroneously to believe the judicial immunity of superior court judges was less than it is.

GORDON J: That is why I am asking, that you accept up until that last sentence the ‑ ‑ ‑

MR DONAGHUE: I accept up until that last sentence.

GORDON J: That is, the things that underpin why his Lordship was saying what he was saying.

MR DONAGHUE: I do accept all of that, and I did not need to, and did not wish to, given timing constraints, get into a debate as to whether there was a qualification on the immunity of superior court judges in that extreme kind of case.

I will not, again for reasons of time, take your Honours to Lord Justice Ormrod whose reasons are materially to the same effect, particularly at 146 through to 149. He expressly agrees with Lord Denning that it is impossible to maintain a distinction between inferior and superior court judges. The primary judge, in fact, acknowledged the force of that reasoning that I have just read at 331, and he expressly said it was:

at best doubtful that –

there was:

any such justification or rationale still –

to apply a distinction to:

modern‑day magistrates and inferior court judges in Australia.

But his Honour thought it was not the role of a single judge to give effect to that kind of reasoning. We say two things about that. One, his Honour understated the extent to which this Court had already embraced that reasoning, but second, whatever the position of a single judge in the Federal Court, this Court obviously can properly give effect to the force of the reasoning I have just read to you.

GAGELER CJ: Is honest belief in jurisdiction a requirement for the immunity, in your submission?

MR DONAGHUE: In my submission, it is not, but that is the controversial proposition. So, in my submission, the cases support the contention that if what you are doing is done in a judicial capacity, then that is enough; that is all that you – so that you would not need to have an inquiry into the state of mind of the judge as a prerequisite to establishing immunity.

GAGELER CJ: You just need a purported exercise of an available jurisdiction.

MR DONAGHUE: Yes. And then, of course, you have other ways of dealing with what will have occurred. So, if a judge, having civil immunity, has taken bribes and acted with – then they are subject to the criminal law and there is no immunity from that. There is no immunity, of course, from appeal quashing the effects of whatever has been done erroneously. If what has been done is bad enough, then there may well be judicial commission type procedures, or proven misbehaviour procedures, that are available with respect to the judge. All of those things are there. But the authorities point to the idea that the immunity needs to be absolute because otherwise people will allege the extreme against the judge and they will then be vexed by the very kind of litigation that the immunity is supposed to protect against. So, it is the absolute nature of it that is necessary in order for it to fully achieve its purpose.

Can I touch very briefly on a number of decisions of this Court. It is easy to deal with them briefly because they are very brief decisions. Taking them chronologically, Durack v Gassior, which is volume 6, tab 54. It is actually an unreported decision of Justice Aickin which I take your Honours to both because it is first, but also because it is very similar to this case.

What had happened is that a Family Court judge had erroneously committed a plaintiff for contempt of court, and the person committed the contempt spent five days in gaol before they were released, and having been released, they then sued. Justice Aickin, in an ex temp, dismissed the challenge, and your Honours can see – hopefully you have the transcript recording his Honour’s judgment with page numbers at the bottom, and on page 14, at the last full paragraph on the page, his Honour records the case was brought against the Commonwealth for the “wrongful acts” committed by the judge:

It is not alleged that he did not act bona fide . . . it is very properly conceded –

that he made serious mistakes:

did not the follow appropriate procedure –

et cetera. The ruling is over the page, at about point 2 on page 15, where it is said:

It is, however, clearly established by the authorities to which I have been referred that no action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them.

GORDON J: Does it matter that this is a superior court?

MR DONAGHUE: In my submission, it does not matter. I accept that it is a superior court, but – as Lord Denning said in Sirros – within jurisdiction, the principles are the same.

Your Honours will see at about point 4 on the page express reference to what was then the recent decision of Sirros, and particularly the passage in the reasons of Lord Denning at 136. That is the passage I just read to your Honours, where his Honour said, I take my stand on the point of principle: there should be no difference between superior and inferior court judges. His Honour then says, in the next paragraph:

Although those are cases decided in England . . . I do not entertain any doubt that the rule . . . applicable in –

Australia is the same. So, immunity for acts done in the course of hearing or deciding cases which come before them, is what Justice Aickin said.

GAGELER CJ: To be fair, he says:

do not entertain any doubt that that rule is applicable in the original jurisdiction of the High Court –

MR DONAGHUE:

as it is in the jurisdiction of the supreme courts of the States.

GAGELER CJ: Yes. It is just not dealing with the issue in this case, the position of an inferior court.

MR DONAGHUE: Your Honour, I accept it is not dealing with the position of the inferior courts, and that is the case with a number of these authorities. Some of them are dealing with superior courts, a few of them are dealing with inferior courts. They are approving – in this case, expressly – a specific page in the reasons of Sirros that says there is, as a matter of principle, no distinction to be drawn between the two, and they articulate the rule in a way that draws no distinction between the two, in circumstances where, historically, there is no distinction between the two, at least for matters within jurisdiction.

One of the things that happened in the lower court before the primary judge – and it might happen here, I do not know – is that there was quite extensive debate about what exactly was ratio and what was not ratio in all of these cases. In my submission, whatever is ratio or not ratio, there is a consistent series of decisions, all stating the rule in the same way. What we are asking your Honours to do is state the rule in that way.

Can I, noting the time – I am sorry for rushing your Honours – ask your Honours to go next to Gallo v Dawson, volume 6, tab 55. There is a couple of cases in this sequence. The “Dawson” in question is Justice Dawson of this Court, so, again, I accept that it is a superior court case: an attempt by Ms Gallo to sue Justice Dawson, which was summarily dismissed. The case I have just asked your Honours to go to in volume 6, tab 55, is Justice Wilson’s judgment, summarily dismissing the matter. The reasoning is on page 122, in the left‑hand column. His Honour gives two answers why the claim must fail. Halfway down:

In my opinion the point taken for the defendant is unanswerable. In the first place, the plaintiff’s affidavit makes it plain . . . that the conduct alleged against the defendant, assuming . . . that it occurred at all, was undertaken in the performance of his judicial duties. There is no suggestion that he lacked jurisdiction to perform the acts alleged . . . In this context “jurisdiction” means the broad and general authority conferred upon a court to hear and determine –

Citing Nakhla. So, that was the first answer: it was within jurisdiction in the course of performing judicial duties. The second answer was a matter of “fundamental principle”, as stated by Lord Denning in Sirros. You see the quote that I have already relied upon. So, there is absolute immunity for things done by a judge within jurisdiction.

That judgment was not appealed immediately. Time expired. There was then an application for an extension of time before Justice McHugh which was rejected, with Justice McHugh saying that Justice Wilson was clearly correct. I will not take you to that. There was then an appeal against the refusal of an extension of time and that went before a Full Court of this Court in another case called Gallo v Dawson, this time in volume 6, tab 57.

In that Gallo v Dawson (1992) 66 ALJR 859, there is a joint judgment of Chief Justice Mason and Justices Brennan, Deane, Toohey and Gaudron which, again, on the front page, on the right‑hand column, about point 8 on the page, their Honours say:

we agree with McHugh J that Wilson J was clearly correct in concluding that the appellant’s case must fail by reason of the long‑established principle of judicial immunity applying to acts done by a judge in the course of the performance of judicial duties.

So, that is very similar to the formulation that Justice Aickin gave in the Durack Case, and it is very similar to the formulation you are about to see in the next case, where six Judges of this Court formulate the rule in the same way.

That next case is Re East: Ex parte Nguyen [1998] HCA 73; 196 CLR 354, which is volume 5, tab 39. So, this case, unlike the others I have addressed so far, does concern inferior court judges. There are two judges whose conduct was in play; one was a magistrate, and the other was the Chief Justice of the County Court in Victoria, the District Court equivalent – both inferior courts. The allegation was that those two judicial officers had acted in breach of the Racial Discrimination Act by reason of – and you will see, if you have the headnote at the bottom of the page, the second holding recorded is:

That the respondents were protected from any allegation that they were subject to legal redress on the ground of an alleged contravention of s 9 of the Racial Discrimination Act by reason of the immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity.

The reasoning that supports that holding is quite brief. It appears at paragraphs 28 through to 31. So, at the bottom of page 365, you see in paragraph 28 the two persons identified – consistent with what I said to your Honours a moment ago:

the magistrate and the Chief Judge –

Then, at 29, there is said to be:

fundamental problems with the notion that either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of s 9 of the Act.

Then, paragraph 30:

First, there is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity.

Citing Rajski v Powell, with approval. So, the same formulation: actions arising out of acts done in the exercise of their judicial function or capacity. So, you have both Gallo v Dawson and this Court formulating the immunity proposition in that way – here, specifically, in the context of inferior court judges.

The primary judge dismissed Re East – said it was irrelevant on the basis that it was an administrative law case not directly concerning judicial immunity. We submit, for the reasons I have just shown your Honours, that that is not right. One aspect of the case did directly concern judicial immunity. For some reason, his Honour also said the case was of little value because – and this is 336 of the reasons:

the immunity that applied to the judicial officers in that case was likely to have been affected by the operation of the Judicial Officers Act.

We have made a general complaint that his Honour was overly keen to distinguish the cases upon which we relied. That is a particularly egregious example because these are Victorian judicial officers. On what basis the Judicial Officers Act (NSW) was said to be relevant is not apparent.

BEECH-JONES J: What was that paragraph again, Mr Donaghue?

MR DONAGHUE: In the judge’s reasons?

BEECH-JONES J: Yes.

MR DONAGHUE: Paragraph 336. Next, Fingleton v The Queen, which is volume 3, tab 29. I probably do not really have time to do this case justice, but it is true that the relevant parts of this case are clearly obiter. The case is interesting in that it concerned a criminal prosecution of its Chief Magistrate of Queensland with respect to events that occurred involving the possible removal of a co‑ordinating magistrate in Queensland. The Chief Magistrate was exercising an administrative function, clearly, but section 21A of the Magistrates Act conferred, when exercising an administrative function:

the same protection and immunity as a magistrate has in a judicial proceeding –

So, it is a mistake to distinguish this case on the basis that it is about administrative proceedings because, while that is true, the Act directed attention back to the same immunity as would otherwise have applied. You will see the provisions quoted in section 1. There was also another relevant section at play in the case, section 30 of the Criminal Code which said that:

Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done –

in the course of the exercise of the officer’s duties. That immunity provision did not distinguish between superior and inferior court judges. The majority, Justices Gummow and Heydon, with Justices McHugh and Hayne agreeing, gave a short judgment deciding the case on the construction of 21A, and that does not assist your Honours.

Chief Justice Gleeson and Justice Kirby, as I have said admittedly in obiter, addressed the immunity questions more broadly, and they did so in a way that is instructive, particularly in the judgment of Chief Justice Gleeson. I think, given the time, I will not do more than commend to your Honours paragraphs 34 through to 40 of the learned Chief Justice’s reasons. His Honour there explains that the statutory provisions reflected the common law immunity.

So, while he is talking about an Act, the discussion of the common law is linked to the Act in that his Honour has expressly said in paragraph 35 that one reflects the other. There is express approval of Lord Denning in Sirros. In paragraph 37 – and it is perhaps relevant here that his Honour spent 10 years as the Chief Justice in New South Wales before coming to this Court and so, as a head of jurisdiction, can be expected to have had close familiarity with this – that:

An allegation of judicial misconduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority.

So, his Honour is explaining why the immunity needs to be framed widely.

GORDON J: Just so I am clear, does that mean in paragraphs 36 and following where his Honour sets out his analysis of the common law, that is the bit that is instructive? Is that the point?

MR DONAGHUE: Yes, the whole paragraph range, but particularly that, yes, your Honour, that is so. I have probably stayed longer there than I should have. There is also an approval of some of the New South Wales cases later in that discussion. Justice Kirby at 137 is also helpful and his Honour’s reasons there, which is on page 214, are framed in terms of the common law already having developed in the way that we suggest. His Honour says halfway through that paragraph:

If the question of immunity was ever contemplated by anyone, perhaps it was rejected because of the rules, now overtaken by statute and the common law, that formerly drew artificial distinctions in this respect between judicial officers at different ranks in the hierarchy.

Citing Sirros and a number of other cases, his Honour regards the development as already having occurred. I do not have time to take your Honours to Rajski v Powell.

GORDON J: And Rajski was cited by Justice Aickin in the first case you took us to in Durack. Referred to at least, anyway.

MR DONAGHUE: Yes. There are a couple of – I think that is right, your Honour.

BEECH-JONES J: It was cited in Gallo v Dawson, too. In a footnote.

MR DONAGHUE: Yes. It is expressly approved in Re East, in the joint judgment of six members of the Court, so it gets approving references in a number of places, which is why I was intending to take your Honours to it, but in the joint judgment of Justice of Appeal Priestley with whom Justice of Appeal Hope agreed, their Honours expressly endorsed Justice Aickin in Durack. His formulation:

“ . . . No action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them.”

There are approving references to Sirros, and perhaps picking up – this is 538 and 539 – your Honour the Chief Justice’s question about the good faith limit. In fact, your Honours, I am doing this in a half‑baked way, so I should ask your Honours to turn to the case, which is volume 7, tab 89, and when you have it if you could go to 538. You will see at page 538, F through to G, picking up the quote from Durack v Gassior. Citations of Sirros v Moore at the bottom. And then the last line:

The many authorities all support the way the matter was put by Aickin J in Durack in regard to cases where no question of the judge’s jurisdiction arises.

And then Justice Priestley recounts the argument that I have already paraphrased to your Honours about whether there should be a qualification where the superior court judge acts without jurisdiction. Then at the end of that paragraph, around C, there is the need:

to ensure that judges can decide issues before them without pressure being put on them by the litigants threatening –

litigation. Then your Honours see the next paragraph:

I have mentioned the two different situations to which rules . . . have . . . been applied. In some of the authorities the courts have stated one rule as applicable to both situations; an example of this appears in Sirros. The statement of the position in this way tends to obscure the fact that two different types of situations are being dealt with, one in which the result is absolute, and the other in which it is qualified.

Thus care needs to be taken in using –

President Kirby’s statement in Agarsky:

In that case he said that “Action is not maintainable where judicial officers act in good faith in the performance of their judicial duties”. That statement appears to be based on what was said by Lord Denning –

That is the passage that your Honour Justice Gordon asked me about:

In cases however where there is no question of lack of jurisdiction the statement by Kirby P should be read as if the words “in good faith” were taken out of it.

So, their Honours there are expressly holding that, at least in the case of matters within jurisdiction, there is no qualification. If there is a debate, it is about whether there is a qualification in the cases where a court acts without jurisdiction. For the reasons that I have sketched, the cases in the line I have just gone through do not support the existence of any qualification on the absolute immunity where a judge is acting in a judicial capacity.

That is the formulation that they have used, and the formulation, to make it as precise as we can, is that we seek that articulated in paragraph 6 of our outline. Immunity with respects to acts done in the exercise of their judicial function or capacity, without any distinction between superior and inferior court judges.

GAGELER CJ: I am sorry, just so I understand what is meant by “judicial capacity”, that assumes jurisdiction at some level, does it? It requires jurisdiction at some level?

MR DONAGHUE: In my submission, it does not, no. It clearly includes at least anything that a judge does in court. There is a question, I think, as to how far outside court things can still be done in a judicial capacity, but the preparation of reasons would clearly, in our submission, fall within that ‑ ‑ ‑

EDELMAN J: See, even that statement from Durack that it applies to anything done in court is probably too broad. Judges cannot commit criminal acts in court, for example. There has to be a boundary that is drawn around the principle of immunity.

MR DONAGHUE: Well, your Honour, I emphasise that we are speaking only of civil immunity. I am not suggesting absolute immunity. So, the criminal law continues to apply to the judge in court. The judge might be able to be removed because of misconduct that occurs in court. They can obviously be overturned because of conduct that occurs in court, but can they be sued? Justice Aickin’s formulation, as your Honours said, was as wide as anything that you have done in court.

BEECH-JONES J: I am not advocating this as a practice, Mr Donaghue, but if a judge came down and punched a counsel and was sued for damages, that would not be in a judicial capacity.

MR DONAGHUE: No, the words will obviously fall to be interpreted, and, yes, if the judge is brawling with counsel in the court room, then I think we can all agree that that would not be in a judicial capacity.

BEECH-JONES J: So, the boundary would be acting in a judicial capacity which may have to be looked at – this is on your argument – in the facts of the particular case, that would be objectively assessed as to what was going on.

MR DONAGHUE: Yes, but does not seem to depend – so, Lord Denning discussed this in a passage I passed over in Sirros as to whether there was a jurisdictional requirement for superior court judges, and his Honour said no. The formulations are like the formulations I have advanced to your Honour in a judicial capacity, which his Lordship explained was intended to be broader than jurisdiction.

EDELMAN J: The problem is that is there is also a lot of baggage that comes with labels like in a judicial capacity, because, of course, denial of natural justice has often been said to be acting outside the judicial capacity or an unjudicial way.

MR DONAGHUE: And also said to be a jurisdictional error, so as to remove the jurisdiction – which seems to be what happened in this case – is that the judge, even though subject matter jurisdiction was accepted, denied immunity to Judge Vasta on the basis that there was an exceptional circumstances qualification.

So, what I am resisting in my answers to all of your Honours but particularly the Chief Justice is, on our primary argument, the notion that there is a component in the test that requires a conclusion that the judge has subject matter jurisdiction. That is our alternative argument. If your Honours are against my widest argument, then we say, clearly if you have subject matter jurisdiction then you have absolute liability.

GAGELER CJ: I am not trying to tie anyone to a formulation, but I think earlier I referred to a purported exercise of an available jurisdiction. Is that one way of putting this, or is that too narrow?

MR DONAGHUE: A purported exercise of an available jurisdiction – so, a jurisdiction that the court of which the judge is a member has. I think that would ‑ ‑ ‑

BEECH-JONES J: Or do you mean purported exercise of the judicial function, purporting to act as a Judge?

MR DONAGHUE: There is always a danger in trying to litigate other cases, but one scenario that has occurred to us is if a judge of the Circuit Court were to purport to conduct a murder trial. The judge might be purporting to act as a judge, but they would not, on your Honour the Chief Justice’s formulation, be purporting to exercise jurisdiction that the court of which they are a member has.

I would find it difficult to contend that the Circuit Court judge was acting in a judicial capacity when they were doing something that they, at the court of which they were a member of, could never have done. I think the Chief Justice’s formulation picks up that kind of concept.

EDELMAN J: Then you are coming very close to jurisdictional error, because – putting aside extreme cases like conducting a murder trial – a judge that acts beyond the jurisdiction that is the subject matter jurisdiction that is provided by an Act would then fall within that principle.

MR DONAGHUE: I am endeavouring to be as clear as I can be that we submit that the cases consistently deny that just making an error in the exercise of the subject matter jurisdiction that the judge purports, or that the court of which the judge is a member possesses, is not a basis upon which jurisdiction is lost. Nakhla and all of the earlier cases, we submit, support that. The formulation that I have ‑ ‑ ‑

GORDON J: So, can I just summarise that formulation. So, it is civil suit, not criminal. That is the first limb of your proposition in outline of oral argument 6.

MR DONAGHUE: Yes.

GORDON J: Second, there is a distinction. On your argument, there are two streams. One is within jurisdiction, absent jurisdiction, and then ‑ ‑ ‑

MR DONAGHUE: That is the difference between 6 and 7. So, 6 does not have jurisdiction, 7 does.

GORDON J: Correct. So, 6 is the broader proposition and, adopting what Justice Beech‑Jones put to you, one has to undertake some analysis of what is the judicial function or capacity that is being done.

MR DONAGHUE: One will, applying the test, need to do that. I should say, that formulation that we have used there very closely tracks the language of Re East at paragraph 30, which is also very similar to the language of the Full Court in Gallo. So, we submit that those two judgments – and Durack also uses a similar formulation, not exactly the same. So, we are drawing it from that foundation. We are accepting that its application will need to be worked out case‑by‑case, but we deny that that formulation has a jurisdictional component to it.

We deny that in part because the immunity of superior court judges has never historically been framed in terms of actions within jurisdiction. If one is going to align the immunity of superior and inferior court judges, it should not have a jurisdictional component. The place where jurisdiction has played a historical role in this area of the law is only in relation to inferior courts. That is where the subject matter question has been important.

Your Honours, I am being quite reasonably informed that I have exceeded my allowance. The one remaining thing I should do is somewhat pre‑emptively mention In re McC, which featured heavily in the argument against us. I will not take your Honours to it, given the time. I may need to come to it in reply, depending on what Mr Herzfeld seeks to make of it.

Can I just make this point. When you come to that judgment at the bottom of page 541, paragraph H, you will see Lord Bridge, recognising that the statute that was at the heart of that case had turned the old common law immunity rule into a statutory rule, and that old common law rule did draw a distinction between superior and inferior court judges. Having accepted earlier on page 541, paragraph D, that it would be a ludicrous anachronism to maintain the distinction between inferior and superior court judges, his Lordship then said:

Whatever the judicial basis for the distinction . . . and however anomalous it may seem to some, the distinction unquestionably remains part of the law affecting justices and will continue to do so as long as the language of . . . section 15 –

of the Act:

remains in legislative force –

In other words, the legislation had crystallised an old rule, and because the legislation had crystallised the old rule, it left the House of Lords no room to recognise the developments in Sirros or to develop or articulate the common law in the way that we suggest. It is for that reason, principally, in very short form, that we submit your Honours might be assisted by that case.

I apologise for the rush, your Honours. Unless the Court has further questions, can I ask Mr Begbie to deal with the remaining part of our argument.

GAGELER CJ: Thank you.

MR BEGBIE: Could I go immediately, your Honours, to how this issue was framed below. If your Honours would go to the core appeal book in the primary judge’s reasons at 414, page 357:

the relevant question is whether police officers and gaolers have a defence when their otherwise tortious acts were committed in the execution of an order made, or warrant issued, by an inferior court which was later found to be invalid.

That was the issue. Paragraph 415 identifies the division between the parties:

Mr Stradford accepted that different principles perhaps apply in the case of officers, or “ministerial officers” –

That is a very important and loaded term in a way I will come back to:

of inferior courts who execute orders or warrants issued by such courts. The Commonwealth disputed that there was any relevant distinction in the authorities between ministerial officers and police and prison officers.

That is the crux of the dispute that is before your Honours. That distinction between the defence applying to the narrow category of so‑called ministerial officers or to the broader category of officers which include police, gaolers, executing officers of various kinds.

While your Honours are there, could I ask you to notice paragraphs 416 and 417, because they are the primary judge’s articulation of a point that loomed rather large in his Honour’s analysis of the authorities. It is the idea that an Act introduced in 1750, the Constables Protection Act, was only introduced because there was no common law principle that served that purpose and, having been introduced, operated in effect to stultify the development of the common law. While your Honours are reading that, could I ask you, in particular, to see the third line of 416, where that provision was described by reference to the:

execution of warrants issued by magistrates or inferior court judges –

It does not use the expression “justices of the peace”, and that is significant, as I will explain.

Your Honours, I now deliberately skip over the 90‑odd paragraphs in which the primary judge analysed all of the authorities. Plainly enough, time will not permit that kind of analysis. I want to go straight to the conclusion and tell your Honours what the fundamentals of the conclusion were and then I will work back into the authorities from there. If your Honours then go 90‑odd paragraphs forward to 515, his Honour says:

I do not accept that the authorities unequivocally support the proposition that any person who acts pursuant to an order made, or warrant issued, by an inferior court is protected or immune from any civil action if –

it is invalid. He describes the authorities we rely on in this way:

While there may be some broad and general statements in some cases that might tend to suggest that third parties who act in accordance with warrants are protected, if the warrant appears valid on its face, those statements may be explained on the basis of the suppressed premise of statutory protection.

That is a reference to the Constables Protection Act. Otherwise, if they are not explained on that basis:

they are wrong. The preponderance of authority supports the conclusion that only officers of the court who are bound, by their office, to obey the order . . . are afforded any protection –

That formulation in the last sentence is the formulation – that is the definition, if you like, of ministerial officer. So, for the purposes of that categorisation or that contest between the parties, you are either in that category and you have the protection or you are out and you did not; that is the conclusion here.

STEWARD J: I was going to ask you, who is an officer of the court?

MR BEGBIE: I am going to come to that, your Honour. It is a very important and, in this decision, unanswered question.

STEWARD J: I will wait for you to get to it.

MR BEGBIE: Yes, thank you, your Honour.

BEECH‑JONES J: Can I just ask, does your argument depend upon the conclusion that the Commonwealth contractors and perhaps the Queensland officials were bound by law to give effect to the – sorry, had a duty to give effect to warrants, or that they chose to give effect to them? Does anything turn on that for your argument?

MR BEGBIE: We ultimately say nothing turns on that because the collective effect of the circumstances of their contractual arrangements, of the MSS responsibility to the martial of the court, the direction made to the individuals in court by the judge, all of that put these officers in a position where doing anything other than what was patently expected of them amounted to a duty, if that be the best expression for the purposes of this defence.

BEECH‑JONES J: All right.

MR BEGBIE: Mr Herzfeld might say otherwise. We have never understood the argument to be that we would lose on the facts if we are right about the law. So, we understand that if police and gaolers do come within this principle, then we certainly do as well.

Would your Honours also just here notice 516 and 517 as well, which is really a repetition, but with some more specifics of the conclusions. In 516, his Honour repeats that:

There is . . . no clear or unequivocal line of authority –

and narrows the proposition down in that paragraph to:

a police officer . . . or a prison officer –

and then in 517 his Honour deals with the question of subject matter jurisdiction. That is ultimately not something that affects this case, because there is no contest about that – it is quite clear that the judge – Judge Vesta – had subject matter jurisdiction. There is a lot of authority about that, and that will not trouble your Honours in this case. But in 517, you will see again:

The authorities . . . do not clearly or unequivocally establish –

this principle:

Queensland was unable to point to any authoritative decision that established that to be the case.

Now, we say – and we can stay with 515 for the moment – that there are, within this, important errors just on the face of what was done in 515, without going to the authorities. The first thing I want to do is to take your Honours to the methodological failures that you can see in 515 to 517.

The way his Honour analysed the authorities involved failures of – and I say this with respect – judicial method with respect to the common law, and that is what I am referring to when I say that. I will deal with that first. I will deal, then, with the authorities, and I will try to get my way to the Australian authorities as quickly as I can, because they are ultimately what determines the common law or assists your Honours to do that, but I do need to briefly address some English authorities that are picked up in the Australian authorities. Lastly – and I think most briefly of all – I will address the question of the policy rationale for this defence.

Ultimately, as you will have seen from our oral outline at paragraph 10, we say the primary judge should have held – and this Court should now hold – that it is a defence to the tort of false imprisonment if a person was acting to enforce or execute a judicial order in accordance with their duties unless the person knew the order was invalid. That is the endpoint of all of this.

Still in 515, these are the three things that we say infected the analysis of the authorities that the primary judge undertook. As I say, I will not be able to go through them case by case, of course, but I will try to give some references and to, as it were, illustrate these vices as I go through some of the cases in a moment.

The first problem is the one that appears in the first sentence and is repeated in 516 and 517: the common law exists or it does not, you do not need to find it proved to a high standard. There is no requirement that it be demonstrated to a clear and unequivocal standard. Indeed, that is somewhat inconsistent with, as your Honour the Chief Justice has said, the fact that tidiness is not a notorious feature of the common law.

We are here talking about principles that have developed over hundreds of years in very different contexts and settings which, in Australia, happily, are not principles that get called upon very often because this is not a common event. So, looking for that kind of high standard in the statements before you are prepared to recognise a principle was the wrong way to go about it, we say.

The second issue is coming to your Honour Justice Steward’s question about this categorisation. That was set up as the contest, as you have seen at the start of this part of the judgment, and it depends upon the idea that you can draw a line between the individuals who are in this category – and I am going to use his Honour’s shorthand of ministerial officer, but I do so knowing that it is, in truth, a misleading label, it is just the label that has been used – it depends upon identifying people that fit into that camp and people that do not, and people that do not include police and gaolers.

The fundamental difficulty with that is that it is ahistorical. It is not how the various functionaries, courts, officers, justices of the peace and so forth, were developed and operated in the 16th and 17th centuries, and there is no recognition of that. As you go through his Honour’s analysis you will see that the ministerial officer is somewhat equated with a person that would be like the marshal of the court or the sheriff of the modern court.

But of course, at that time, there were sheriffs doing multitudes of functions, some them even of a semi‑judicial kind. There were bailiffs likewise. There were constables likewise. Justices of the peace would do law enforcement policing, administrative‑type functions, as well as some judicial functions.

So, to try to single out what Mr Stradford calls the bright line distinction of the ministerial officer is to set up, really, a false choice. That is not a real prism through which to view the cases. So, what happened – and your Honours will see this as you go through it – the primary judge, with the submissions of Mr Stradford, identified cases and said, well, that is a ministerial officer case, as though that answered the question, simply because it happened to be a sheriff or a bailiff in that case, not a constable. But that does not answer the question at all. It is a distinction, with respect – and I will try to draw this out – that was imposed on the cases, not a distinction that was drawn from the cases.

STEWARD J: So, a sheriff is a ministerial officer but if, in darkened times, one had budget cuts and had to outsource the job, they would not be allowed to have the defence?

MR BEGBIE: On that argument?

STEWARD J: On the basis of his Honour’s judgment.

MR BEGBIE: Yes.

GAGELER CJ: Your formulation just refers to a person, a person who was acting to enforce or execute, I take it, a purported judicial order. Is that really any person? I mean, a vigilante, an officious bystander?

MR BEGBIE: No, it is not, your Honour.

GAGELER CJ: So, you must put some bounds around it.

MR BEGBIE: The bound is that the officious bystander or the vigilante is not doing so in accordance with their duties.

GAGELER CJ: I see.

GLEESON J: Why is it not just that the person is the subject of the order, that the person is compelled to comply with the order?

MR BEGBIE: Your Honour’s question gets very close to what has been held in some cases. The case of London v Cox that concerns a garnishee, for example, is not anyone approaching what you would classify as an officer of the court or a police officer or even a constable, but they are bound by a particular order, and that has been held to meet the requirement for the defence.

Now, we are not trying to set the outer bounds of this here. This is a proposition that is intended to address the law as it has developed to date and as this Court should develop it for the purposes of this case, but it is not meant to shut out future cases where those kinds of situations arise, just in answer to your Honour Justice Gleeson’s question.

GORDON J: Can I ask why, in rejecting or seeking to challenge the primary judge’s description, which is “enforcing official”, what is wrong with that language? Putting aside the consequence which follows from it, I had understood that that itself had some limiting factor. You do not seem to have that in your proposition at the end of your outline paragraph 10.

MR BEGBIE: We do not, but we – I think I might reflect on that. If I have a concern, I can say it after lunch.

GORDON J: Thank you.

MR BEGBIE: But I think “enforcing official” is by and large a fair description of all of the various people that would be doing these things. It is just that it does not extend out to the garnishee, but if the Court says a defence ends at the enforcing official for the purposes of this case, it does not stop a future case coming along and seeking to have that developed further.

The third issue in 515 is the issue of the suppressed premise of the Constables Protection Act. That is wrong at a few levels. We have said in our submissions that it is wrong because it does not recognise the symbiotic relationship between statute and the common law, and your Honours have references to cases in our oral outline, and a very helpful paper by Justice Leeming on that, which are referred to in our written submissions. I will not go to any of that, but do remind your Honours that statutes in common law interact closely and in both directions.

To treat this statute as some necessary stop‑gap because the common law just simply did nothing in that space was wrong, and to treat it as stultifying the development of the common law was also wrong. It is just not the way that works. Mr Herzfeld, I think, makes a submission that might have been more the way things worked back then. We resist that. There are just the same dynamic interactions between statute and common law, and you can see that in the development of the justices of the peace. That is the starting point for what is wrong with the conclusion about the Constables Protection Act.

The second thing that is wrong with that there just are cases before it was enacted which show that gaolers get the protection, which show that the courts recognised the protection is available for police officers, because they are in the same category, they are officers enforcing orders. I will mention too, now, Olliet v Bessey and Moravia v Sloper, which I will, if time permits, say something briefly about. I should say that I am skimming over – necessarily, for time reasons – quite a lot in all of this, and that is unavoidable, but happily, I understand the Queensland Solicitor‑General will fill in some of the blanks I will be leaving, so that might work quite well.

GLEESON J: Are they cases that show that a person has a choice about complying with an order that they know to be invalid?

MR BEGBIE: There are statements that come close to that, but as I stand here, I cannot think of a case that sees that as a genuine choice. That is, the decisions do not seem to countenance that a true enforcing officer might actually say: I have worked out that your Honour is judge of an inferior court, that order appears to have been grossly overstepping the mark, and I think I am bound by law not to do that. I have not seen a case that in any way seriously countenances that. In fact, that has been described, I think, in Kable, by this Court as “almost a status of anarchy” and a long while ago by this Court in the case of Mock Sing v Dat as “monstrous” and “a perfect farce”, so the courts have never lent genuine credibility to that as a state of affairs that could ever really exist.

The final thing that is wrong with the analysis of the Constables Protection Act – and I can do this very briefly, if your Honours go to that – it is at tab 11. The primary judge does not, with great respect, seem to have appreciated what the Act did. I flagged for you at the start, the reference to magistrates and inferior court judges. You will see the very opening words at the top of page 261 of the joint bundle that it is:

An act for the rendering justices of the peace more safe –

it is “justices of the peace”, not magistrates, not inferior court judges generally:

and for indemnifying constables and others acting in obedience to their warrants.

That is, the warrants of the justices of the peace. So, that is an accurate capturing – that first sentence – of what this Act does. If you go, then, to section VI, which is the operative section for constables and other officers, you will see starting at about the third line:

no action shall be brought against any constable, headborough or other officer –

so “any” it is very open; it is not differentiating between them and sheriffs and bailiffs and gaolers and so forth:

or against any person or persons acting by his order and in his aid –

so that broadens it out yet further:

for any thing done in obedience to any warrant under the hand or seal of any justice of the peace –

I will not parse that extraordinarily dense provision from here, but what it is setting up is a set of procedural protections for a constable who is acting in accordance with a warrant under the hand of a justice of the peace. That is what this does. It does not provide a blanket protection for constables who act according to invalid court orders, and we say it did not need to, because that was already there.

What this does is put in place for that category – bear in mind, that includes justices of the peace issuing something akin to a search warrant, what would be, plainly, an executive warrant under our modern system, the protection relates to when that is done and the officer acts in accordance with that. The procedural protections here operate at a level anterior to a final judgment on a final common law defence; they assist to cut what is described in this Act as “vexatious actions” off early.

So, this Act did not have the gap‑filling effect that the primary judge found or the future stultifying effect that the primary judge found. That, your Honours, is what is wrong in globo with how the primary judge approached the authorities. How, exactly, each of those problems manifested in each case, of course – you see a variety as you go through them – but that is what infected the analysis overall, in our submission.

Can I turn then to some of the authorities. I will, very briefly, identify three English cases, all of which I know the Solicitor-General for Queensland will be going to at more length. So, if your Honours would have the forbearance to allow me to do that in a very shorthand way just to set up what I want to say with the Australian authorities, I will do that largely from the lectern. I can give your Honours the references as we go. The first of those is the case of Olliet v Bessey, a 1682 decision, which is volume 7, tab 76.

GAGELER CJ: All these three cases are referred in paragraph 11 of your outline.

MR BEGBIE: They are, your Honours. Yes, your Honours have those, I can move with some ‑ ‑ ‑

GAGELER CJ: Are you asking us now to turn to these, or do you ‑ ‑ ‑

MR BEGBIE: It might be just as well for your Honours, just to highlight particular passages that I will go to – I will just go to a key passage in each of them. In Olliet v Bessey, this is a case that preceded the Constables Protection Act and that was concerned with the liability of a gaoler, so this is one of the people that is excluded from the primary judge’s category. Unbeknownst to the gaoler, the writ on which he had acted had been unlawfully executed; he was initially held liable, but this was overturned on appeal.

The court did draw a distinction, but it is not a distinction between so‑called ministerial officers and gaolers; it is a distinction which runs right through all these cases, between the position of the party seeking the writ and the officers executing the writ, and these cases say that the party who should know about jurisdiction and has choice – I am being very simplistic here – will be liable when an officer, who simply has to enforce the writ, will not be liable. That is the distinction that is important here. If your Honours look at the bottom of 2061, about four lines up:

if one be arrested by a process out of an Inferior Court for a cause of action which did not arise within their jurisdiction, the party arrested may well maintain an action against the plaintiff who had levied the plaint, and should be intended to know where the cause of action arose –

GORDON J: I am sorry, Mr Begbie, where are we reading from?

MR BEGBIE: Does your Honour have – did I say 2061?

JAGOT J: It is 2060.

MR BEGBIE: I am so sorry, your Honour, it is 2060.

GORDON J: That is all right.

MR BEGBIE: Yes, that was entirely my fault – no wonder your Honour looked puzzled. Four lines up from the bottom of 2060:

if one be arrested –

GORDON J: Thank you.

MR BEGBIE: I will not read it aloud again. Your Honours can read that and see the distinction between the plaintiff and the officer. Then, your Honours would read the first six lines – or highlight the first six lines over the page, which explain why that principle, why that defence exists for an officer. It is the same thing that is recognised in modern Australian cases.

So, that is the first of what becomes a series of gaolers’ cases. It is not that this is some outlier that died in 1682, it was roundly supported in the case of Henderson v Preston and then again in a case of Demer v Cook in England, and then came to be supported in Australia as well. So, this is a case that has stood since before the Constables Protection Act in favour of a defence for gaolers.

Would your Honours then go to Moravia v Sloper, volume 6, tab 71. This another case that pre‑dated the Constables Protection Act. It is another case that is picked up repeatedly with approval in the Australian authorities for a much broader principle that the principle the primary judge found. This is one of those cases that the primary judge and Mr Stradford classify as a ministerial officer case, as though that is the beginning and end of it.

It is true that on their classification, this is a case that involved, on the facts, a bailiff, who was one of the many officials who would have that kind of function of ministering to the courts. Moravia sued both the plaintiff and the bailiffs, and as with Olliet v Bessey, the court drew a distinction between the party and the officer. What the court did not do is draw a distinction between the so‑called ministerial officer and a constable. The passage where you see this is on page 1044 of the decision, 2010 of the joint bundle, at the very top:

For otherwise, it has always been holden –

Your Honours, I expect, would read that cold and out of context and have a number of questions about that passage, which time will not permit me to deal with, but they concern the context of this case and the pleading points that were being raised, and they concern subject matter jurisdiction. The only thing I want to draw to your Honours’ attention is that this is equating the constable with the officer. There is no distinction being drawn.

A case which is in our oral outline, which I will not take your Honours to but will just describe very briefly, is the case of Andrews v Marris. Andrews v Marris is again repeatedly picked up and referred to in the Australian authorities, not in the limited way that the primary judge found. It is equivalent to Moravia v Sloper – indeed, it follows Moravia v Sloper in holding in that case that a sheriff attracted the common law defence.

It is striking that the gaoler was not sued at all in that case. Because that was not a case – it did post‑date the Constables Protection Act, but it did not involve a justice of the peace, we do not know, but it may be not unreasonable to suspect that the gaoler was not sued because the existing defence already covered the gaoler.

The last of the English cases which I will ask your Honours to turn to is Mayor of London v Cox at volume 6, tab 70. This is a very long case and I am going to do nothing more than take your Honours directly to the two passages that deal with the critical thing that emerges here, which is that a garnishee comes within this same principle. So, not only does it reach out to police and gaolers, but it goes so far as a garnishee. If your Honours go to 263 in the judgment, it is 1972 at the top of the joint bundle, and read the very last paragraph. The last lines, a:

Judge and officer are liable to a civil action if they knew of the defect of jurisdiction –

That is the critical exception, they are not liable, but if they know of the defect of jurisdiction, they are liable. That is what Moravia v Sloper and Andrews v Marris say. So, it is picking up the principle from both of those cases and, if you go to 269, applying that directly to a garnishee, starting at the third line:

They shew the course of pleading in the case of a garnishee . . . In such a case, although the proceeding in the Mayor’s Court was wrong, yet the garnishee, not being party or privy to the wrong, and paying honestly in obedience to process of law apparently valid, has the same protection as an officer who executes process apparently regular, without knowing of the want of jurisdiction; and who, not being in a condition to resist, is protected, not because the proceeding was well founded, but notwithstanding it was ill founded –

That is the Moravia and Marris principle being applied not in a narrow way, but in a way that extends to ministerial officers. That sets up, your Honours, the position with respect to the Australian authorities.

These authorities show, overall, two things: a repeated acceptance of the broad principle as outlined in London v Cox and those cases, and secondly, a complete absence of any statement that it excludes police, gaolers and enforcing officials. I do not understand Mr Stradford to point to a single Australian case that contains that exclusion. There is a reference to Feather v Rogers, but that is not a judicial orders case at all, that concerns a search warrant, so that can be put to one side.

I will give your Honours a reference to Mooney v Commission of Taxation without going to it. That is in our oral outline. It is a High Court case in which Andrews v Marris is cited not in the narrow way, but in support of a general principle. Your Honours see that at 241, point 9. If your Honours would go to Smith v Collis ‑ ‑ ‑

BEECH‑JONES J: Can I just ask this – do you put a qualification on third parties, that they do not know of the defects of jurisdiction?

MR BEGBIE: Yes, that is built into our formulation, your Honour.

BEECH‑JONES J: So, the Commonwealth’s primary position is there is no such limit on the judicial immunity, but there is for third parties?

MR BEGBIE: Yes. So, the way we put that is, unless – there is possibly some devil in the detail for future cases. We would put it as, unless the person knew that the order was invalid – if you go back into the authorities, I must tell your Honours that there are cases that suggest that some form of constructive notice, or should have known, might sound in liability. So, in response to your question, I need to just identify that.

BEECH‑JONES J: Yes.

MR BEGBIE: So, his Honour was not seeing the High Court’s application of the principle in Mooney – I should not say “application” – statement of the principle in Mooney as of any significance. The next Australian case, as I say, is Smith v Collis. The headnote gives an accurate summary of what happened in that case. It was:

an action against the governor of a gaol –

for having imprisoned someone under a warrant that was invalid but appeared valid on its face. This is intermediate appellate authority which rejects the proposition, not that it was put, because, as we say, it is a false premise, but stands against the idea that there is a ministerial officer category that you can limit this defence to. If your Honours go, first of all, to 813, point 5 ‑ ‑ ‑

GAGELER CJ: Mr Begbie, am I right in understanding the agreement was to finish at 12.45 and return at 2.00?

MR BEGBIE: Your Honour is right, and then I think I have 15 minutes after that.

GAGELER CJ: If we do that, you will finish in the 15 minutes allocated?

MR BEGBIE: I will have to, your Honour.

GAGELER CJ: The Court will take the luncheon adjournment.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.59 PM:

MR BEGBIE: Your Honours, paragraph 12 of our oral outline contains the cases that I had not gone through. Can I tell you what I propose to do in the fifteen minutes remaining. I will take you, in fairly smart order, to each of Smith v Collis, Ward v Murphy and Posner. I will just say, without going to, some things about Cavanough and Robertson. I will rely on our written submissions in relation to Kable. I will do them in that order, but that is the plan of attack.

Smith v Collis I think your Honours have open. That is a statutory habeas case, and it is said by the primary judge and I think Mr Stratford that it is not of much relevance, given that statutory context. We disagree with that, because this is one of those cases where the common law was looked to closely in understanding how the statute would be applied in the particular case.

I told your Honours that it concerned an action against a gaoler and the warrant was invalid but apparently valid on its face. Your Honours, I think, read the headnote before we stopped. Could I take you then to 813, at about line 25 or 26. If your Honours read from:

In the ordinary course of things –

you will see the statement of general principle in relation, here, to a gaoler:

In the case of actions for false imprisonment this has been made absolutely clear.

Then is a reference to the gaolers’ cases that I have already referred to – I took your Honours to Olliet v Bessey, and that was followed, as I said, in Henderson v Preston and there is a long quote from Demer v Cook. All of those are the old gaoler cases being followed here in Australia at the intermediate appellate level. Would your Honours then go to 815, at about line 42.

EDELMAN J: How was the Governor in the Brockhill Prison Case held liable, if that principle applied?

MR BEGBIE: Your Honour, I do not know the answer to that. It is a question I confess I had not thought about in preparation for this. So, the general policy stated there is important, and of course restates things said many times – it would be:

merely in accordance with fairness and justice to a gaoler, whose only duty is to obey the process of the Courts and to receive prisoners who are committed to his custody –

Then finally, line 30 on page 817 provides one reason why this:

Protection would seem to be more necessary –

in the case of inferior courts than superior courts.

GORDON J: Where are we reading on 817, Mr Begbie?

MR BEGBIE: From line 30:

It is, I think, hard –

Did I say 817, your Honour?

GORDON J: Yes, thank you.

MR BEGBIE: And you do not need to go to it, but Justice Gordon agreed with that. Now, let me give your Honours some references for Commissioner for Railways v Cavanough, which is volume 3, tab 22. This was another case which had a statutory context, but in which this Court considered the basic common law principles in informing the approach. The plurality, Justices Rich, Dixon, Evatt and McTiernan approve of the general statement in Dr Drury’s Case at page 225 about point 3:

Acts done according to the exigency of a judicial order afterwards reversed are protected –

STEWARD J: Sorry, what page was that? I beg your pardon.

MR BEGBIE: That was page 225, point 3.

STEWARD J: Thank you.

MR BEGBIE: If your Honour is turning it up, you might mark the middle part of that page, which discusses Dr Drury’s Case, another case that will be described, I think, by Mr Stradford as a ministerial officer case and needing to be understood in the particular way I have described the problems with that classification. Then, at the bottom of page 227, line 31:

Even if Cavanough –

Then the second sentence:

It is true that anyone who acts in execution of a judgment may justify under it –

It is those kinds of statements, and London v Cox that have informed our framing of the test by reference to any person acting in accordance with their duties. We accept, we readily accept, that this is not actually a gaoler’s case on all fours, and at least on one reading of this, you could debate this extent to which this was ratio or obiter, but one thing it certainly is, is a considered application of the common law to a particular case, which should not be lightly brushed aside. And, perhaps softening what might have sounded pejorative, we suggest it was not given the attention and respect that it warranted below.

If your Honours then go to Ward v Murphy ‑ ‑ ‑

GORDON J: In that passage you just took us to at page 227, the opening ambit of that principle would be consistent with what I put to you earlier, before lunch, in terms of – which I think you were going to have a think about.

MR BEGBIE: The enforcing officer?

GORDON J: Yes.

MR BEGBIE: Your Honour, if we had a concern with that, it is that it introduces an evaluative question which perhaps raises its own set of parameters: what is an enforcing officer?

GORDON J: It is narrower than “person”, which is the principle that you have contended for in your outline.

MR BEGBIE: Quite so, and we think, in all practical operation, our security guards in this case would come within that category, and if it was broad enough to encompass them, then the further development of the principle could wait another day. But if an enforcing officer was ‑ ‑ ‑

GORDON J: But do you ‑ ‑ ‑

MR BEGBIE: I am sorry, I have cut your Honour off.

GORDON J: Does that mean that an “enforcing officer” in that context is anyone who acts in execution of a judgment. That is broader than enforcing officer?

MR BEGBIE: I missed the context. I am sorry, your Honour.

GORDON J: Enforcing officer is narrower than that which is at the foot of page 227.

MR BEGBIE: Yes, it is, because it puts a parameter around who may execute. We put that parameter around it by referring to duties, which seem to us to be in keeping with the fundamental thread of the authorities, which speaks about the lack of choice and lack of knowledge. That is the characteristics of our guards in this case, and that is the characteristics of all the people that your Honour might be contemplating with the classification “enforcing authorities” or “enforcing officers”.

Would your Honours turn to Ward v Murphy, which is volume 7, tab 101. This case concerns a failure to promptly release a person from gaol after the original writ authorising his detention had been overturned. An important fact in this case is that the writ was directed at the gaoler, but it was not the gaoler being sued, rather, it was the sheriff being sued. What I will come to is the very clear equation of those two office‑holders as ministerial officers, we say, a clear statement that breaks down the division that the primary judge insisted upon. If your Honours start the judgment of Justice Davidson, and look first at page 94, point 5 on the page, beginning:

At common law . . . The sheriff will be protected if he acts strictly within the authority of the writ, even if it be set aside, subsequently, for irregularity –

Citing there, among other cases, Andrews v Marris. The opening, “At common law”, is important, because his Honour has previously in this judgment made clear it was necessary to fully consider the law on this. So, this was a very considered statement. If your Honours then go down to 95, the start of the first full paragraph:

The statement of the law in Mayor of London v. Cox is of the highest authority as it was made by the judges in the course of answering certain questions –

Reading down to the middle of the page:

The cases cited by the judges in support of the statement already mentioned in Mayor of London v. Cox, as well as other authorities, support the proposition that, as an inferior officer of the Court is punishable as a Minister of the Court –

interesting language, getting to your Honour Justice Steward’s question:

an inferior officer of the Court is punishable as a Minister of the Court if he does not obey its commands, he is not bound to justify by showing that he did not know of a defect of jurisdiction, but may merely rely on the writ –

In that context, it is impossible in Australia to just dismiss Moravia v Sloper and Andrews v Marris as so‑called ministerial officer cases as though they say nothing beyond that. If your Honours go down, then, to page ‑ ‑ ‑

BEECH-JONES J: So, do what you say is meant by “inferior officer of the Court”? You say that includes gaoler and police?

MR BEGBIE: It includes gaoler and police and, in this case, the sheriff. It shows the looseness of the language. As you go – your Honours will do this at more leisure – you will see these terms are not used as terms of art, but they describe the function of the person as a servant to the court. At the bottom of page 96, about six or seven lines up, the discussion of Mayor of London v Cox is resumed. I just draw your attention there, but then really focus over the page, at the top of 97, this is what that stands for:

The sheriff is not liable for executing a writ not bad on the face of it although issued without jurisdiction unless he did know of the defect, and that it does not lie on him, when acting as an inferior ministerial officer –

so, this is the sheriff:

to do more than plead the writ itself, with the addition that it was issued out of an inferior Court and was not bad on the face of it.

Finally, and perhaps most importantly in this case, at the bottom of page 99, just above the very last ‑ ‑ ‑

GORDON J: Sorry, just before you – before lunch, you talked about constructive knowledge. Is that the constructive knowledge aspect you were referring to, on 97?

MR BEGBIE: The constructive knowledge – perhaps I will just go back. Not quite, your Honour. I think the constructive knowledge idea, you will see more clearly in cases like Moravia v Sloper.

GORDON J: Thank you.

MR BEGBIE: I was on 99, at about point 6 or 7:

Whilst not expressly directed –

now, look at the way that the sheriff and the goaler are equated here:

Whilst not expressly directed by the writ to execute it, however –

that is, the sheriff was not expressly directed by the writ:

this duty is cast upon him by the Prisons Act. His duties are ministerial, and neglect of them would render him liable to an action

for damages, and no doubt to other proceedings . . . It is difficult, therefore, to see how he can be differentiated from other ministerial officers who are named in the writ –

In other words, how the sheriff can be differentiated from the gaoler who is named in the writ. And:

as so called inferior officers, are permitted to justify –

So, in our submission, that is clear intermediate appellate authority in Australia that denied the distinction that the primary judge drew.

Your Honours, I do not need to do more with Posner. Although it is important, because it is a High Court case, I do not need to do more than identify that at pages in our oral outline, 476 and 481, Justices Starke and Dixon give very firm approval of London v Cox and Moravia v Sloper. So, any debate about the force of those cases – and the primary judge did debate those cases as being applicable – needs to be resolved in light of this Court’s endorsement of them as proper statements of position.

I have said I am relying on our written submissions for Kable. That leaves one case, the case of Robertson, and your Honours will read that one carefully in due course. Let me say this about it. It is intermediate appellate authority, in the last 25 years in Australia, in which three judges have directly held that a gaoler is entitled to that defence. The leading judgment, Justice Steytler, covers things that I have covered through all the other cases. He goes to cases like Sirros, London v Cox and Posner and works through the authorities and comes to what we say, with respect, is the absolutely right conclusion.

Mr Stradford will point out some minor errors in the reasoning along the way, and we do not shy away from that, but it does not change the fundamentals of assessing where the common law stands and getting that right. In our submission, it was not open to the primary judge to not follow that case. The reason for not following it was because it was said to be inconsistent with Feather v Rogers, which I mentioned at the start, is a search warrant case. They are talking to completely different topics and to not follow this was, in itself, an error. It certainly is an indication of where the common law is at and where it has been heading. That case is a case that your Honours would give careful attention to.

Thank you, your Honours.

GAGELER CJ: Thank you, Mr Begbie. The Solicitor‑General for Queensland.
MR DEL VILLAR: Your Honours, there are two issues in Queensland’s appeal. The first is whether section 249 of the Criminal Code applies to the police and corrective services officers who execute an apparently valid warrant issued by an inferior federal court, where that warrant is later held to be invalid. That is the first issue, and it relates to grounds 2 and 3 of our notice of appeal.

The second issue is whether the common law affords protection from civil liability to police and corrective services officers who act in obedience to an apparently valid warrant of commitment that is later held to be invalid. Your Honours have been taken to the relevant warrant of commitment. Just to remind your Honours, you will find it extracted in the core appeal book at page 267 at paragraph 38, and the relevant facts of the detention of Mr Stradford are set out in paragraphs 44 to 48 and 52. I need not go to those, your Honours. I will simply concentrate on the submissions, given the time.

Can I begin with section 249, your Honours. That provision, in our submission, shields persons who are under a duty to execute warrants from criminal and civil liability when they arrest and detain persons in accordance with those warrants, and it gives effect to a policy that persons who ordinarily will be in no position to determine whether a warrant is valid should not be subject to criminal or civil liability. That policy, in my submission, is one of long standing and, as regards constables or justices of the peace, it is embodied, for instance, in the Constables Protection Act 1750.

The primary judge, however, construed section 249 as not applying to warrants issued by federal courts. Indeed, as I will indicate, his Honour went further and seems to have construed section 249 as not applying to warrants issued by State courts exercising federal jurisdiction. The result of that construction, in brief, is that State police officers and corrective service officers were obliged to execute warrants of federal courts or State courts exercising federal jurisdiction may find themselves not only civilly liable for torts such as false imprisonment but possibly even criminally liable for offences such as common assault and deprivation of liberty, and that construction, I will be submitting, is wrong.

Before explaining why, your Honours, it is necessary to place section 249, which is the key provision, in its wider statutory context. Can I ask your Honours to turn tab 9 in the joint bundle, this is part of the Criminal Code, and it is the beginning of Chapter 26 of the Criminal Code. Your Honours will find it at page 184. Your Honours will see the heading to Chapter 26 is:

Assaults and violence to the person general—justification and excuse –

What follows that is a series of provisions which, in section 245, define “assault”; in section 246, indicate when an assault is unlawful; and then comes a series of provisions which I will call justifications. Section 247, deals with execution of sentences, and you note the words:

It is lawful for a person –

One will see that formula repeated in the next couple of sections. Section 248 deals with “Execution of process”, and then section 249 deals with “Execution of warrants”. Could I invite your Honours to read section 249, as well as section 250. When your Honours have done that, could I invite you to read section 251, which deals with the situation which I will try and summarise briefly.

That is the situation where there is an absence of what I will call, for convenience, subject matter jurisdiction to issue the warrant. In that case, a person can be excused from criminal liability, or criminal responsibility, if the requirements of that provision are met. So, your Honours will see at sections 249 and 250 – like sections 247 and 248 – afforded justification rather than excuse. One can also see that by contrasting the language in section 251, where it talks about a person who would be justified under the provisions of section 247 to 250.

GAGELER CJ: Is it controversial at all that these speak to civil liability?

MR DEL VILLAR: No, your Honour, that is not as I apprehend it in controversy, because one will find that at section 6 of the Criminal Code Act which says that one cannot bring an action if it is lawful to do something.

GAGELER CJ: I see.

MR DEL VILLAR: I do not apprehend that to be a controversial point at all. Can I make a couple of points in relation to sections 249 and 250. First, your Honours will notice that section 249 is expressed in very broad terms. It applies to:

a person who is charged by law with the duty of executing a lawful warrant –

And these are the words that we would emphasise:

issued by any court or justice or other person having jurisdiction to issue it –

Then it talks about “required to arrest or detain”. Your Honours will then notice, by virtue of section 250, that the application of section 249 is not limited to cases where a warrant was issued within a court’s authority, or what they referred to, seemingly interchangeably, as jurisdiction. In other words, section 250 makes it lawful to arrest or detain a person even if the warrant in question was invalid, provided that the court had authority to validly issue a warrant in “any circumstances” – those are the words of section 250 – and the person who arrested or detained another pursuant to the warrant did not know of the warrant’s invalidity.

Your Honours, it is apparent from the language of section 250, which applies not just to section 249 but to some of the other provisions, that the application to invalid warrants is a central part of the way these provisions are meant to operate. It is not some extra, it is a central part of the way these provisions are intended to operate.

BEECH‑JONES J: Could I just ask perhaps maybe a basic question. Why was your client charged by law with a duty of executing the warrant?

MR DEL VILLAR: Because, your Honour, the warrant of commitment was identified as referring to all police officers of the States and Territories, including Queensland police officers. Queensland police officers have the duties of a constable at common law, and at common law, there is no requirement, in my submission, that officers be named in order for such a duty to inure, as it were.

BEECH‑JONES J: The Queensland police or corrective services had effectively picked up the common law obligation to execute a warrant?

MR DEL VILLAR: It is slightly different in the case of the corrective services person, because that person is named in the warrant.

BEECH‑JONES J: I see.

MR DEL VILLAR: Your Honours, we have dealt with that – briefly, I will admit – in footnote 102 of our written submissions, where we refer to some of the relevant legislation and the duties of a constable at common law. Can I make two other ‑ ‑ ‑

GAGELER CJ: Do you mean there is other relevant legislation that you have not referred us to?

MR DEL VILLAR: It is in footnote 102, your Honours. It was not anticipated that this issue was going to be in dispute because it was not in dispute in the court below, and as far as we apprehended it, it was not going to be in dispute here. It was certainly not raised between the parties in written submissions. If your Honours would like us to explore it further, we are of course able to provide your Honours with a note if your Honours wish.

Can I make one other point in relation to the operation of sections 249 and 250. This takes on some significance in light of the discussion which I will come to about the presumption of extraterritorial operation and its statutory analogues. Sections 249 and 250 do not purport to regulate any activity of a court, or any other person who has jurisdiction or authority to pass, sentence, or issue a warrant, nor do they confer, or purport to confer, any power on such entities. That is going to be relevant to the argument as to whether or not the rule of construction and various other presumptions are engaged in the first place.

The next aspect of the statutory context, your Honour, that has to be considered, are the offences that are most relevant to sections 249 and 250. Two of these offences, in our submission, are fairly obvious, and they are common assault, which your Honours will find at section 335 of the Criminal Code, and that is at page 199 of the joint book of authorities.

EDELMAN J: Could you give me the section number again?

MR DEL VILLAR: Section 335, your Honour, and also section 355, which deals with deprivation of liberty. Your Honours will find that at page 206. Two things are significant about those offence provisions, your Honours – I should say, one thing is common to each. These can be constituted by the relevant acts being performed anywhere in Queensland, and your Honours will see that at section 12 of the Criminal Code, which deals with the scope of territorial jurisdiction. Could I ask your Honours to turn to it briefly. It is at page 167 of the authorities, subsection (1).

STEWARD J: Sorry, what was the section again?

MR DEL VILLAR: Section 12, your Honour.

GORDON J: What is the point to be made from this? What is the proposition we are to draw from this?

MR DEL VILLAR: The proposition which I am going to develop, your Honour, is that provisions such as section 249 and 250 have the same scope as the territorial scope of the offences.

GORDON J: Thank you.

MR DEL VILLAR: Having taken your Honours to those matters, can I ask you to turn to the relevant parts of the primary judge’s judgment. Can I ask your Honours to the core appeal book at page 391. The relevant paragraphs, your Honour, are at 544 – that is the first one – and the other paragraph to which I will ask your Honours to go is paragraph 546. Now, your Honours will see at paragraph 544, his Honour there is applying section 35(1)(b) of the Acts Interpretation Act (Qld), and your Honours can turn that up at tab 7, page 115 of the authorities. Your Honours will notice paragraph 35(1)(b) speaks of:

a reference to a locality, jurisdiction or other thing –

If one turns to paragraph 544 of his Honour’s judgment, he explains why it is that the Circuit Court is a “thing”, why the warrant is a “thing”, why jurisdiction is also a “thing”. Then follows the conclusion:

It follows that s 249 of the Criminal Code must be construed as referring to a warrant “of” Queensland issued by a court “of” Queensland having jurisdiction “of” Queensland.

At the end of that paragraph, his Honour then stipulates:

The requirement that the relevant jurisdiction be “of” Queensland indicates that the jurisdiction in question be conferred by a Queensland law.

And to similar effect is what is said at paragraph 546. In our submission, your Honour, this mode of analysis is simply inconsistent with the settled way that one approaches the application of provisions such as section 35(1)(b) and any corresponding common law presumption. The relevant principles in that regard are conveniently summarised in the case of BHP Group Limited v Impiombato, which your Honours will find in volume 3 of the authorities at tab 19, beginning at page 379. The relevant passages to which I will take your Honours begin at page 393 of the joint book and page 970 of the report. Your Honours will see at paragraph [59] the reference to:

In statutes, like the Federal Court of Australia Act, where there is no express provision relevantly addressing the territorial reach of the subject matter of the statute, the task is to identify the hinge –

The second proposition which we would take from the joint judgment of your Honours Justices Gordon, Edelman and Steward is that if the hinge:

does not have a clear territorial connection –

one ordinarily will:

require that the hinge be construed as territorially limited, subject to a contrary intention.

That is at paragraph [62]. The third proposition which we would take from this case, your Honours, is at the end of paragraph [62]:

The presumption has never been understood such that it needed to be applied to all elements or words in a statute.

To similar effect is what is said by his Honour Justice Leeming in the case of DRJ v Commissioner of Victims Rights [No 2]. I will be coming to that where his Honour referred to the contrary view as a fallacy. If I could ask your Honours to turn to paragraph [63] in BHP, it is fairly apparent from reading that paragraph that the joint judgment of your Honours Justices Gordon, Edelman and Steward regarded the common law presumption against extraterritorial operation and the operation of the statute as being coterminous. Your Honour Justice Gageler and Chief Justice Kiefel took a different approach, indicating that the two were not wholly coincident but they nonetheless overlap substantially.

GAGELER CJ: Do you read section 35 of the Acts Interpretation Act as concerned only with the territorial scope of the statute?

MR DEL VILLAR: If I could just have a moment, your Honour. The short answer is yes.

GAGELER CJ: Thank you.

MR DEL VILLAR: Your Honours, the submission that I was making was the initial problem with the primary judge’s construction just cannot be reconciled with the relevant authorities about how one approaches the application of this presumption at common law or under statute. The Criminal Code, as I have already taken your Honours to in section 12, spells out its territorial reach, yet the primary judge nowhere considers the effect that that might have on the application of the common law presumption or section 35(1)(b). His Honour makes no attempt to identify the hinge or the central subject matter of the statute. Instead, his Honour seems to have treated section 35(1)(b) as requiring every element in section 249 – that is, “court”, “warrant”, “jurisdiction” – all to be of Queensland. That is simply a mistake, in my respectful submission.

GAGELER CJ: The Queensland statute referred to the Governor. Is it referring to any governor who happens to be in Queensland, or is it referring to the Governor of Queensland?

MR DEL VILLAR: One would take it normally as referring to the Governor of Queensland.

GAGELER CJ: Would one not take it normally by virtue of the operation of section 35; “in and of Queensland”? I would just question the premise of your argument, that is all.

MR DEL VILLAR: There is a number of issues there. First of all, it clearly would not be referring to the Commonwealth Governor because it is the Governor‑General, and it was hard to see how the context would necessarily involve it.

GAGELER CJ: It is an extreme example.

BEECH-JONES J: What do you say is the hinge, though? Is it the act of arresting or detaining?

MR DEL VILLAR: It is the criminal liability associated – or the potential criminal liability associated with that. That is what the sections are directed towards.

BEECH-JONES J: So, a sheriff executing a warrant out of the court in Alabama could arrest someone in Queensland?

MR DEL VILLAR: In Queensland?

BEECH-JONES J: Yes.

MR DEL VILLAR: Well, there is no reason, in my submission, why that would not be the case, given that the offence would be committed in Queensland otherwise.

BEECH-JONES J: The offence of arrest or the assault?

MR DEL VILLAR: Common assault, deprivation of liberty.

BEECH-JONES J: So, 249 would extend that widely?

MR DEL VILLAR: In my submission, yes. In the highly unlikely event that that would occur, yes. There is a deeper problem, with respect, to the primary judge’s approach, and that is his Honour does not consider whether or not any such presumption is displaced by a contrary intention, and, in our submission, there is a contrary intention.

STEWARD J: Can I just add to what Justice Beech‑Jones asked you about. The scope of section 249 is, of course, limited to a person who is charged by law with the duty. It could be a sheriff from Alabama, as long as he has been charged with a duty by law.

MR DEL VILLAR: Yes. Your Honour, the example is difficult because one does not normally expect foreign countries to try and enforce their processes in.

STEWARD J: No, of course not.

GORDON J: The Extradition Act might have something to say about it.

MR DEL VILLAR: Precisely. Your Honour, our submission is that the context and purpose of section 249 and 250 demonstrate that a warrant issued by a federal court is a warrant issued by any court justice or other person having jurisdiction to issue it under section 249. We get that not only from the broad language of the section but the consequences of the primary judge’s construction and the evident protective purpose of the section.

The primary judge’s construction, in our submission, means that police officers and corrective services officers who enforce in Queensland an invalid warrant of a federal court simply cannot rely on sections 249 and 250, which means that they are potentially exposed to criminal liability for the offences of common assault and deprivation of liberty, as well as tortious liability for false imprisonment or battery. That is an extraordinary consequence, particularly when it has been long been recognised that officers are not in a good position to determine the legality of the warrants of the courts that they are charged with executing.

GAGELER CJ: What if it is a valid warrant?

MR DEL VILLAR: If it is a valid warrant, then it is covered by section 249 and 250, as well.

GAGELER CJ: If it is a valid warrant issued by a federal court and in the execution of the warrant the officer in question does something that would amount to a common assault under section 335, are you saying that that offence is committed unless the officer can rely on section 249?

MR DEL VILLAR: Or some other provision, but the short answer is yes.

BEECH‑JONES J: Will there not be a 109 issue, though, because of the law that authorises that federal court to issue that warrant?

MR DEL VILLAR: The issue never arises, because if one has a valid warrant section 249 in terms would apply.

BEECH‑JONES J: I am sorry, if it did not apply. If that was only a State court.

MR DEL VILLAR: If it was only a State court?

BEECH‑JONES J: Yes, but if your State officer executed a federal warrant, and it was valid, they would not need 249, would they? They had lawful authority otherwise.

MR DEL VILLAR: No, your Honour. Subject to one point, I think the answer is yes, your Honour. Your Honour, we have given the example in our written submissions of the case of Painter v The Liverpool Gas Company, to the effect that one cannot expect, and it would be absurd to require, an officer to pause and work out whether the warrant they were called to execute is properly issued. I am not going to take your Honours to that because the point does not seem to be contested and there is not a lot of time. I will be coming back to the issue of the rationale for the common law cases, which involves that anyway.

Your Honour, the other point that we wish to make involves compromising the administration of justice. If one is potentially exposing officers to criminal and civil liability for executing warrants that they are not in a position to determine are valid or not, then that is going to have repercussions for the administration of justice.

EDELMAN J: There is a difference between a common law position and positions like 249 and 250, is there not? In the absence of 249 and 250, any common law excuse would not excuse the crime, but it would provide a defence to liability, but 249 and 250 are full justifications. There is no crime or tort that has been committed.

MR DEL VILLAR: Yes, that is correct. There is no crime or tort if one falls within these provisions.

EDELMAN J: That is the big difference between the statutory provisions and any provision of the common law that relies upon the face of the warrant, including a lawful warrant, as an excuse to a crime or defence to a tort.

MR DEL VILLAR: Your Honour, I can accept that.

Your Honour, I was dealing with the situation of officers enforcing potentially invalid warrants of federal courts, but the problem is even starker with respect to State courts because, on the primary judge’s reasoning, when a court is exercising federal jurisdiction, the powers that it uses to issue warrants are not conferred by Queensland law; they are conferred by federal law, and they have to be picked up by federal law.

So, if his Honour is correct, one has the problem, except applying with even greater force, state officers are not in a good position to work out if something is or is not in federal jurisdiction. Sometimes even the courts miss whether or not something is in federal jurisdiction. We have given the example of Momcilovic in which – it went up to this Court – it was only here that Justice Gummow remarked that it seemed to have passed unnoticed in the county court, where the trial was held, that because Ms Momcilovic was an interstate resident, the matter was in federal jurisdiction.

So, on the view that the primary judge is taking, there are going to be consequences for the administration of justice not just of warrants issued by federal courts, but perhaps even more so at the State court level.

GORDON J: So, is that a second problem with what you might describe as your practical consequences for the officer? Not only do they have to work out whether or not it is properly issued but whether or not it is limited to state jurisdiction or federal jurisdiction?

MR DEL VILLAR: Indeed, and his Honour seems to say, it is clearly federal jurisdiction, but the problem is that has all sorts of consequences for officers who are faced with the practical problem of giving effect to something issued by a State court.

Your Honour, the situation, in our submission, is analogous to that which is found in the case of Birmingham University and Epsom College v Federal Commissioner of Taxation, which your Honours will find in volume 3 of the authorities, tab 20. It begins at page 399, if I could ask your Honours to turn to that.

The issue in that case, your Honours, was whether the appellants could claim the benefit of a provision in the Income Tax Assessment Act that relevantly exempted the income of charitable institutions from income tax. The Commissioner of Taxation said, no, you cannot do that, because, one, relying on the equivalent of section 35(1)(b) of the Acts Interpretation Act (Qld), which is section 21(b) of the Acts Interpretation Act (Cth), the Commissioner submitted that the exemption applied only to charitable institutions in and of the Commonwealth.

The Court unanimously rejected that submission, and it did so because the exemption had to be construed as commensurate with the application of the provisions imposed on liability. Perhaps the clearest expression of that, your Honour, is at pages 579 to 580 of the report in his Honour Justice Dixon’s judgment, where his Honour spoke about the exemptions entering:

into the very definition of liability –

GAGELER CJ: You rely on this by analogy?

MR DEL VILLAR: Yes. I am not relying on it directly, because it is a tax case, but by analogy.

To similar effect are statements at page 576 of Chief Justice Latham; at 578 to 579, his Honour Justice Rich; and 581 to 582, Justice McTiernan. In this case, our submission is where liability extends to any unlawful assault or deprivation of liberty in Queensland, the legislature could not have intended to confine the exemption from liability in sections 249 and 250 to State courts and warrants issued in pursuance of jurisdiction conferred by state law, because it would simply fail to give effect to its protective purpose in a fairly large way.

That is contrary intention argument. Section 35(1)(a) of the Acts Interpretation Act – if I could just ask your Honours to turn to that, briefly – and that, in terms, says that:

In an Act—

(a) a reference to an –

and I will leave out “officer” and “office”:

entity is a reference to such an . . . entity in and for Queensland –

We accept that a court is an entity, and we accept the Federal Circuit Court is an entity. And it would follow that there is a presumption that, in a Queensland Act, the reference to a court should be a reference to a court in and of Queensland.

But for the reasons I have outlined above, in relation to section 35(1)(b) and the common law presumption, there is a contrary intention that displaces the operation of that provision. That leads me, your Honours, to what is called this “general rule of construction” – I am using his Honour’s terminology – and if I could ask your Honours just to turn to what his Honour said at page 390 of the core appeal book.

At paragraph 538 to 540 there are references – your Honours will notice the reference to Seaegg v The King. There is also a reference at paragraph 540 to Solomons v District Court of New South Wales. Can we make a few points in relation to this. To the extent that this “longstanding general rule of construction”, as it is described, is no more than the presumption against extraterritorial operation, then it has been dealt with in my earlier submissions.

This aspect has been described by some learned commentators as a particular operation of the presumption against extraterritorial operation, we have given a reference in our oral outline to the book Interpretation, where my learned friend and Mr Prince – and that is found at volume 9 of the joint book of authorities, tab 113, page 2898.

Your Honours Justices Gordon, Edelman and Stewart in BHP – that is in tab 19 of the joint bundle, at page 396 – also seems to refer to or cite Seaegg as an example of the application of the common law presumption against extraterritorial operation. Now, the underlying rationale for that presumption has been described in different ways. Your Honour the Chief Justice and Chief Justice Kiefel in BHP described the presumption as one that should be:

more accurately labelled a “presumption in favour of international comity”.

I will just give your Honours the references: paragraphs [23] to [32] of BHP, which your Honours will find at tab 19, and the relevant pages in the joint bundle are 385 to 387. And, in contrast, your Honours Justices Gordon, Edelman and Steward, had indicated that there were cases which had described the presumption without any reference to “international comity”.

And my point is, if one is talking about international comity, it is very difficult to see what that has to do with a Queensland statute. If one is talking about some analogous principle of comity, then the short answer is that that would not be breached by a law such as section 249, which does not purport to regulate or control the activities of an entity of another polity, such as the Federal Circuit Court, or to confer powers on them.

By contrast, the cases where this longstanding principle has been applied, such as Seaegg and Solomons v District Court of New South Wales are very different. Can I give your Honours just some references and explain briefly why that is. Seaegg was a case involving a New South Wales law providing that a person convicted of indictment could appeal to the New South Wales Court of Criminal Appeal. One can see that at tab 40 of the bundle, at page 1476 of the joint book of authorities.

Solomons v District Court, which your Honours will find in tab 41, is a case in which a power is conferred on courts to issue or to grant a certificate, and the effect of such a certificate is that the person who receives it can apply for a payment of costs. So, there is a conferral of the power on a court, and if it turns out that the court is a court exercising federal jurisdiction, one clearly effects, as it were, any sort of analogous comity principle. But here, section 249 and 250 do not do anything like that. So, in my submission, if the rationale for this presumption is some sort of principle of comity in relation to the components of a federation, one does not have the principle engaged.

If one is talking instead about the principle being based on a need to confine words within territorial limits, again, one finds it difficult to understand why it would be engaged by a provision that does not purport to regulate the activities of any entity belonging to another part of the federation. For those reasons, your Honours, the primary judge erred and the common law presumption and any rule of construction to that effect have also been displaced.

Your Honours, time is short, but I will go briefly, as briefly as I can, through the reasons for rejecting theories provided by Mr Stradford for his construction of section 249. Mr Stradford submits, first, that because federal courts did not exist in 1899 when the Criminal Code was enacted, therefore section 249 cannot apply to them. That, with respect, simply overlooks the principle that a statute can be regarded as always speaking. It depends obviously on its purpose, but here, the protective purpose is to ensure that people are not fixed with criminal or civil liability for executing these warrants.

In those circumstances, it would be bizarre, with respect, in my submission, to say that somehow the statute should stop with respect to courts as in 1899, that just cannot work. Federal courts share the same essential characteristics as State courts, so it is not as if they are completely different species of court that has nothing in common with what was there before Federation.

Secondly, Mr Stradford asserts that – and this is a fairly broad submission – he says at paragraph 141 of his written submissions:

where there is a desire in the Criminal Code to refer to a matter or thing in and of the Commonwealth, that has been done expressly.

He gives a particular example in section 359E of the Criminal Code, which I will ask your Honours to turn to. Your Honours will find it in tab 9 of the authorities, at page 209.

STEWARD J: What was that section again, sorry?

MR DEL VILLAR: Section 359E, your Honour. Your Honours will see paragraph (3)(c) speaks of contravening or intentionally threatening:

to contravene an injunction or order imposed or made by a court or tribunal under a law of the Commonwealth or a State.

Now, our submission is a simple one. The context of this provision has nothing to do with the context of section 249. This is an offence‑creating provision. Section 249 is very different. The sweeping submission that, throughout the entirety of the Criminal Code, one has to find an express reference to something to do in and of the Commonwealth, is belied by Mr Stradford’s own submission – which, incidentally, we reject – that somehow section 31 will provide a defence to criminal liability. Now, I will be coming to that and why that argument should be rejected, but my point is simply that even Mr Stradford is not consistently making the argument.

Can I then turn to the next part of Mr Stradford’s submissions, to the effect that the word “court” in some provisions of the Criminal Code obviously mean State court, and by virtue of the principle that words are intended to carry the same meaning, it must mean the same in sections 249 and 250. In my submission, that submission should not be accepted, and the reason it should not be accepted is because, first, the presumption that words used throughout a statute bear the same meaning has always been described as one yielding readily to context and not as a presumption that is particularly strong.

We have given, in our written submissions and our reply, a reference to Clyne v Deputy Commissioner of Taxation. I will just give your Honours the reference to it, rather than taking your Honours to it. The case is found in tab 21 of the joint bundle, the relevant pages are at pages 419 and 424. Here, in our submission, the context and purpose of sections 249 and 250 require that it extend to federal courts.

Mr Stradford relies on provisions such as section 561 in the Criminal Code and he says, well, this is an example of a provision that clearly cannot apply, this is about commencing ex officio indictments – it clearly cannot apply to the federal Attorney‑General. The short answer to that is, again, a vastly differently context. Plus, if one reads section 561 and looks at subsection (2), it is talking about people who are authorised to sign and commence an indictment by the Governor in Counsel; clearly not a federal entity, so the whole context suggests that it is not dealing with federal matters.

That leads me to Mr Stradford’s submission that the general focus of the Criminal Code is on State rather than federal matters: the short answer to that is that such a general focus is entirely consistent with sections 249 and 250 dealing with federal courts, because it is dealing with exempting people from criminal liability under State law.

The final two points in relation to this are about Mr Stradford’s claim that, on his view, there is no mismatch between section 249 and the scope of liability imposed by the Code – your Honours will see that in Mr Stradford’s submissions at paragraphs 147 to 148. The problem with that is, section 249 read with 250 is plainly intended to apply to invalid warrants. Mr Stradford’s submission seems to be, if you have a valid warrant, you have nothing to worry about, but section 250 is plainly intended to ensure there is protection for invalid warrants.

So, in my submission, that does not take the matter very far at all, in fact, on that view, the purpose simply cannot be achieved with respect to officers who give effect to an invalid warrant of an inferior federal court – they never get protected – and, in fact, the same can be said of officers who give effect to an invalid warrant of a State court exercising federal jurisdiction, so there is a mismatch there.

GAGELER CJ: Can I just return you to the language of section 249?

MR DEL VILLAR: Certainly.

GAGELER CJ: How do you read the word “law” in the first line? Do you confine that in any way? Is it any law of any place, of any polity, or is it more confined?

MR DEL VILLAR: We would read that, your Honour, as meaning the person is under a legal obligation, and that is not confined; what matters is that they execute the warrant in Queensland, because that is where they will be liable.

GAGELER CJ: Under any system of law?

MR DEL VILLAR: In the unlikely event that, yes, a foreign government were to allow for such a thing in Queensland, yes.

GLEESON J: So, how would that relate to section 246(1)?

MR DEL VILLAR: We would submit that the reference to:

unless it is authorised or justified or excused by law.

I mean, one has to read these provisions along with section 335 and 355, and in my submission, it is far from clear that it would not apply – it is any law that would be applicable in Queensland.

BEECH-JONES J: Just to pick up and make my example perhaps less unlikely, an interstate warrant issued by a South Australian court.

MR DEL VILLAR: There is no reason, in my submission, why, for instance, a warrant that is issued in Tweed Heads just south of Queensland, provided that there was something that allowed for it to be enforced in Queensland – and I assume there are arrangements to that effect – then it is difficult to see why this would not protect the officer. The alternative would be that the officer who receives the warrant in Tweed Heads cannot get any protection at all against criminal liability for arresting somebody in Queensland, which, in my submission, could not have been the intention.

Your Honours, can I deal briefly with Mr Stradford’s submission that one can always rely on other provisions of the Criminal Code to escape liability. Mr Stradford at paragraph 149 of his written submissions claims that criminal responsibility would not be sheeted home to any officers, because one could simply rely on a number of other sections. He identifies two: section 24, which deals with “Mistake of fact” – that is the heading – and sections 31(1)(a) and 31(1)(b). Our points are simple: section 24, when compared with section 249, is a more limited provision. It requires that a person be operating:

under an honest and reasonable –

mistake as to a state of things that, if true, would deny criminal responsibility to that extent. Your Honours will find section 24 at page 171 of the joint bundle of authorities. So, it requires a positive belief in the validity of a warrant. Section 249 and 250 do not.

There is also a question as to whether section 24 would apply if the mistake as to validity was confined to just that – the officer is mistaken only about the validity of the warrant. There is certainly some authority which on one view would suggest that such a mistake may simply be a mistake of law, rather than of fact, and, as such, may not be captured.

EDELMAN J: But there is an even bigger difference, which is that one is an excuse and the other is a justification.

MR DEL VILLAR: Indeed.

EDELMAN J: It might not affect the direct party themselves, but it is very important to accessories.

MR DEL VILLAR: That is true, your Honour. That is true. Your Honour, we have provided in our reply references to the judgment of Justice McHugh in the case of Ostrowski v Palmer in relation to section 24. I will not take your Honours to that, given the time, but we have – can I also indicate another difficulty with saying section 24 is the answer. If one looks at sections 251 and 253 of the Code, they deal specifically with situations where the warrant has not been issued with jurisdiction and there is a belief about whether the warrant is valid. In my submission, given the detailed specificity of those matters, it would be a strange intention to say the legislature intended, and when it came to federal courts, courts exercising a federal jurisdiction, you are thrown back and can only rely on section 24 and the other bits of the Code.

Your Honour, that just leaves me with section 31. If I could ask your Honours to turn to that, briefly. Your Honours will find that at page 174 of the joint book of authorities. Mr Stradford suggests that one might be able to rely on 31(1)(a) and 31(1)(b). Section 31(1)(a), in my submission, where it speaks of execution of the law, is not dealing with a situation where one is trying to enforce an invalid warrant. If it had been intended to do that, one would have expected language such as one would find in section 31(1)(b) or section 250. Section 31(1)(b) raises precisely the same situation about the application of the presumption against extraterritorial operation that section 249 and 250 raise. So, that does not advance matters at all.

Finally, Mr Stradford says at paragraph 150 of his written submissions, our approach would give rise to real anomalies because there would be distinctions between various people who have to give effect to warrants issued by the same Federal Court in one State, they might be liable in another State, they might not. The short answer is that that is precisely the variation one would expect in a federation.

STEWARD J: Can I ask, if Mr Stradford was of the view that 31(1)(a) or (b) saves you, why do you not just adopt that as an alternative case?

MR DEL VILLAR: The short answer, your Honour, is that we have to say 249 applies, because it is only 249 that means there is no civil liability.

STEWARD J: I see.

MR DEL VILLAR: We have set out in our reply at paragraph 20 the answer to Mr Stradford’s view that there would be some sort of anomaly that would arise. I need not deal with that.

EDELMAN J: You have the same problem with 31(1)(a) and (b) even in relation to criminal law, to the extent that it would not provide protection to accessories that 249 and 250 would.

MR DEL VILLAR: It is more limited. In light of the obviously broad terms in which 249 and 250 are drafted, it would be a strange intention for Parliament to say, the moment you are dealing with a State court exercising federal jurisdiction, too bad, you have to go down this other route.

Can I deal with the common law, your Honours. My learned friend, Mr Begbie – if I can put it this way – introduced me and said I would be dealing with a whole mass of different things. I will try and be as brief as I can dealing with this situation. The central issue is whether police officers and gaolers – that is, persons who are bound to enforce a valid warrant – can be held liable in tort if the warrant that they execute is later found to be invalid.

The primary judge, as you know, held that, no, they are liable – notwithstanding what seems to be agreed that it may be impossible in most, if not all, cases for them to know if the warrant is valid or not. If that is correct, then police officers and gaolers to whom such a warrant is directed are obliged to inquire into the validity of a warrant before deciding whether to enforce it. That, in my submission, would have a real tendency to affect the administration of justice in this country.

There is no basis for considering that the common law would require that position to be taken. The position that the common law should take is that officers and others who are required to give effect to an apparently valid judicial warrant are immune from tortious liability, at least where they do not know that the warrant – or that the court lacks authority to issue the warrant. That is the position that we apprehend the Commonwealth is advancing and we agree with that.

The contrary approach of Mr Stratford and the primary judge, in our submission, rests on two main propositions. The first is that the common law provided immunity for ministerial officers, but not others – such as constables – who were obliged to enforce a warrant. Secondly, that the enactment of the Constables Protection Act 1750 indicates that the common law offered no protection to constables and other officers in cases in which a court lacked jurisdiction, and it also emphasises that any protection must come from the statute.

Can I deal with the ministerial officer exception first. To some extent this has already been dealt with by my learned friend Mr Begbie, and I do not want to go into much detail, but the first point is that the common law did not treat ministerial officers of inferior courts differently from constables and others who are bound to enforce court warrants. On the contrary, the common law recognised that constables were the proper, or necessary, officers of justices of the peace. Can I ask your Honours to turn to tab 110, in the joint authorities bundle – this is Hawkins’ Pleas of the Crown.

BEECH-JONES J: What volume is that in?

MR DEL VILLAR: It is volume 9, your Honour. If I could ask your Honours to turn to the paragraph that begins with section 35, or abbreviation for section 35. It begins “Also it is said”. Could I invite your Honours to read that. We would emphasise the words:

is the proper Officer to a Justice of Peace, and bound to execute his Warrants –

Could I then ask your Honours to turn to Chitty’s, A Summary of the Office and Duties of Constables, which your Honours will find in tab 112 of volume 9. The relevant page is 2831. It is under the heading:

OF THE DUTIES OF CONSTABLES AS OFFICERS TO JUSTICES OF THE PEACE, UNDER WARRANTS.

Again, it says:

The constable is the proper officer of a justice of the peace, and bound to execute his lawful warrants –

and so forth. Could I also just direct your Honours’ attention to the paragraph that follows that, which is on page 2832, where it appears that it has been clear for a very long time that one does not need ‑ ‑ ‑

GORDON J: Sorry, what paragraph is that, please?

MR DEL VILLAR: Sorry, your Honour?

GORDON J: Where is that passage found?

MR DEL VILLAR: The passages at page 2832, and it begins with the words “A distinction formerly existed”.

GORDON J: Thank you.

MR DEL VILLAR: So, it has been the law for a very long that one need not identify constables by name, and I would simply observe that the warrant in question here did not identify constables by name. Your Honours, the relevant distinction throughout the cases is not between ministerial officers and others; it is between those who are bound to execute a warrant and parties or volunteers.

Your Honours were taken to the case of Moravia v Sloper and, your Honours, the relevant passage there – and I will just give your Honours the reference to it – is in volume 6 of the authorities, tab 71. The relevant part is at page 2007. There were two rationales as to why the law recognised that constables, gaolers and other officers who were bound to execute a warrant should not be exposed to liability in the same way as a party. The first was that it was impossible for those officers to know if a warrant was lawful, and that it was simply not their role to second‑guess the legality of orders of the court. Their duty was to obey.

These rationales are apparent in some of the cases. I will take your Honours to just a few. Could I ask your Honours to turn to the case of Webb v Batcheler which is found in volume 7 of the joint bundle of authorities at tab 102. Your Honours, this is a case that is reported in two parts, with a few pages reporting other cases in between. So, the facts are set out in the first part of the report, which your Honours will find at page 2513 of the ‑ ‑ ‑

GORDON J: Is that page 294 of the report?

MR DEL VILLAR: Your Honour is correct; it is 294 of the report. Those are the facts. The relevant bit dealing with the liability of the constable is found at page 2514, and it is the very last paragraph. This is dealing with the argument that the constable is liable, and it begins with the words:

And Hale said, it would be too hard if an officer should be bound to examine the regularity of the proceedings of a justice of peace, for anciently justices of the peace granted out no warrants but after indictments found; but now they do upon complaint made to them upon oath, and yet the constable cannot examine whether oath was made or not.

GAGELER CJ: Who is this? What court? What judge?

MR DEL VILLAR: Just one moment, your Honour. This is Chief Justice Hale, and it is the court of King’s Bench.

GAGELER CJ: Are you talking about the case in 1826?

MR DEL VILLAR: No, your Honour. What has happened is that this case is dated from the 1600s, but it is reported later.

GAGELER CJ: Centuries later?

MR DEL VILLAR: Yes, indeed. I think the date is actually 1675. I am sure my learned friend will correct me if it turns out that I am 200 years off, but this case is dated from 1675, your Honour.

GAGELER CJ: And it is Sir Matthew Hale?

MR DEL VILLAR: Yes. And one will notice that the discussion treats constables just like other officers. There is no suggestion that officers and only ministerial officers are subject to this particular statement. Your Honours have been taken to Olliet v Bessey. Could I take your Honours again to that briefly. Your Honours will find it at tab 76 at page 2061.

GORDON J: We were taken to the explanation at the top of page 1224 of the report. Is that the passage we are going to?

MR DEL VILLAR: Your Honour, I want to take you to page 1223 of the report, just to make two brief points about that. The explanation at 1224 I will just touch on briefly, but I will not take your Honours to that again. Your Honours will see – and this is about halfway through that paragraph – it begins with the words:

And it was said by the Court, that if he had been informed of the tortious taking –

This was a case in which, in the execution of the warrant, things had been done wrongly, but the gaoler was presented with the warrant, and what you will see there in that sentence is that there is no suggestion that the gaoler can do anything other than give effect to the warrant. In fact, it contemplates that if the gaoler had been informed about the information and had set the prisoner at large because he thought that is what should be done, the gaoler would be at risk. That is the issue that arises in these sorts of cases.

Your Honours were taken to the passage on the following page at 1224. I would simply make the point that that passage does not distinguish between the kinds of officers and the rationale that applies to constables applies equally to other officers there. Can I now take your Honours to a different line of cases, which are trespass cases which post‑date Olliet. These took a somewhat narrower view of the exemption from liability that officers had. They suggested that officers could escape liability by relying on either warrant or writ if the court had what is known as general jurisdiction over the subject matter.

Could I take your Honours to the case of Morse v James, which your Honours will find at tab 73. One will find it at page 2022 of the joint book. If I could ask your Honours to go to page 2025, one will see at paragraph 128 on that page “As to the third objection” – that was the third objection taken to the pleading. One will notice here:

we are of opinion also that it is a good objection; for though an officer need not set forth the proceedings at length, and though he may justify under an erroneous process, yet he cannot unless it appear that it was a cause in which the Court had a jurisdiction.

Then it gives an example, the example is about a constable. No distinction between ministerial officers and constables is drawn there. The next case to which I will take your Honours just to make good that proposition is the case of Smith v Bouchier, which your Honours will find in tab 95 of the authorities.

GORDON J: Is the submission to be made here – nothing more, but is it directed at the fact that even if one took the narrower view of these cases after Olliet, here we had subject matter jurisdiction, and so the answer is sufficient?

MR DEL VILLAR: That is certainly part of it, but it also is directed to this: my learned friends say that the Constables Protection Act was designed to overcome the problems of the common law; the Constables Protection Act recognises that there was no protection at common law. In my submission, these cases recognise there is a limited protection at common law. What my friend wants this Court to say is, you are actually to expand liability beyond what the common law position was in those days.

GORDON J: Thank you.

MR DEL VILLAR: I was referring to Smith v Bouchier, which your Honours will find reported at page 2366. Your Honours will notice from the facts that it was a trespass and false imprisonment claim against five defendants, two of whom were the officer and the gaoler. They are dealt with in the very last paragraph on page 2366. The comment that is relevant here is:

And though some of the defendants, as the officer and gaoler, might have been excused, if they had justified without the plaintiff, or the vice‑chancellor; yet it was held, that by joining with them, as to whom the process was no justification, they have forfeited their justification –

In other words, had the officers not bothered, effectively, running the same defence as the others who could not rely on the warrant, they may have been excused, but they forfeited it by doing it that way. One will see authority to the same effect in Andrews v Marris. Can I ask your Honours to turn to that, at tab 44. Your Honours will find that at page 1599. That is where it begins. The relevant part is at page 1605 of the joint bundle.

Now, this is a case that my learned friends rely on for the proposition that there is a ministerial officer exception, and that is because in this particular case, the defendant Witham was the sergeant, and it is pointed out by the primary judge and by my learned friends that there are statements in the beginning of the first paragraph on page 1605 to the effect that:

There would therefore be something very unreasonable in the law if it placed him –

That is, Mr Whitham:

in the position of being punishable by the Court for disobedience, and at the same time suable by the party –

All of which is true. But their Honours then go on to discuss cases in which an officer has lost the benefit of the officer’s ability to simply rely on the writ. One of those cases is Morse v James, to which I took the Court, and the other is Smith v Bouchier.

The point that is being made there is that an officer who does not have to rely on anything but the writ, at least in cases where it is within the general jurisdiction of the court, can lose that benefit by deciding to plead a defence with the others. But, again, there is no distinction between ministerial officers or constables, and so the notion that the common law had a special rule for ministerial officers and constables and gaolers and others, is simply not borne out by the cases.

GAGELER CJ: This notion of the general jurisdiction of the court surely means, in this context, no more than, looking at the face of the warrant, this is a kind of warrant that can be issued by this court. Does it mean more than that? Does it go to the particular proceeding?

MR DEL VILLAR: I wish the answer were as straightforward as that, your Honour. We would embrace that position, your Honour, but we would say this. General jurisdiction of the cause does not in any way equate to modern concepts of jurisdictional error. It is quite a different thing. There are cases where, for instance, the justice can be sued for exceeding their jurisdiction, however that is used, but the officer who relies upon the warrant cannot. And that, your Honour, fits in comfortably with what your Honour has said.

GAGELER CJ: Well, I am just looking at your justification for the rule in paragraph 21 of your outline. It is difficult to see those justifications as fulfilled if the officer in question needs to go behind the face of the warrant and inquire into the circumstances of the proceeding.

MR DEL VILLAR: There is some case law, however, that indicates it is not quite that straightforward, Morrell v Martin probably being the most conspicuous example. I was planning on taking your Honours to that. But for our present purposes, the point I simply wanted to make is this notion of general jurisdiction of the cause does not map neatly with ideas about jurisdictional error, but it is a limitation on liability.

Can I ask your Honours to turn to Morrell v Martin. It is at tab 72. It begins at page 2014 in the bundle. The judgment begins at page 2018. The question which is set out in the first full paragraph of the judgment at 2018 is whether it is sufficient to plead what the relevant defendant did in that case. Effectively, all the defendant did was plead the warrant. The answer that was given by the court was that, no, that was not enough.

Interestingly, the defendant had relied on some of the cases to which I have taken the Court earlier, and the rationale for saying, no that was not enough, your Honours will find at page 2020 of the bundle. Your Honours will see, about five lines down, where it said:

we take the law on this subject to be correctly laid down in the second resolution in the case of The Marshalsea –

Then there is a quote from there. Then it is suggested, after that quote:

And the application of this distinction may explain the ground of the decisions before referred to, and on which the defendant has relied; for in those cases it appears the justice had a general jurisdiction over the subject‑matter . . . whereas in the present case, so far as appears by the plea, the parties had no jurisdiction whatever.

Your Honours will also see later in that paragraph there is a reference to a case called Brown v Compton about a sheriff, where the sheriff was held liable. So, again, no distinction between ministerial officers, as it were, and other officers. What this case seems to be suggesting is, there is some sort of general jurisdiction of the cause argument, or subject matter over the jurisdiction, which is relevant here. The point that I would make your Honours, is that the cases in which one deals with this concept are, to modern eyes, rather strange.

Can I give your Honours the case of Hill v Bateman, which your Honours will find in tab 62, at page 1827. This case, your Honour, does correspond probably most neatly to your Honour’s suggestion that one is talking about the warrant being valid on its face. But, for instance, one had the situation where the justice of the peace was sued and the action will lay against the justice of the peace but not against the constable because the warrant was a sufficient matter, it being within the jurisdiction of the justice of the peace. How that would translate in modern‑day parlance into something that was void for jurisdictional error is unclear.

GAGELER CJ: I am just wondering whether section 250 of the Criminal Code which, presumably, was drafted by Sir Samuel Griffith, was his attempt to capture this line of authority.

MR DEL VILLAR: I would heartily agree, your Honour, that that is, apparently, what it was. It was based on a provision in a Bill in the United Kingdom, which was never enacted, and that Bill was intended to codify the common law.

GAGELER CJ: In this respect?

MR DEL VILLAR: Yes, in respect of these officers.

GAGELER CJ: I see. What is wrong with his formulation?

MR DEL VILLAR: Samuel Griffith’s formulation, your Honour?

GAGELER CJ: Yes.

MR DEL VILLAR: We do not have any problem with that. On that formulation, the answer here in this case should be fairly straightforward. It would not lead to Mr Stradford obtaining a remedy. Your Honour, can I make this point. The rationale for limiting officers’ liability in these cases was always intentioned with the rule that constables would be liable if there was no jurisdiction.

If your Honour is correct and that one applies, in effect, a common law analogue of section 250, then that makes sense, but what Mr Stradford seems to be saying is no, in effect, whenever the lower court has exceeded its jurisdiction there is liability – but that was not the position at common law. It is not the position under section 250 if it, as it were, reflects the common law and, in my submission, the submission based on the Constables Protection Act should be rejected, because it does not really make sense.

First of all, it does not distinguish ministerial officers from others who are bound to execute warrants. There is no principled distinction, there is no historical basis for that distinction. Secondly, the respondent Mr Stradford does not maintain that persons other than ministerial officers should have a duty to inquire into the validity of a warrant being issued. I think I have given your Honours the reference to Painter’s Case, that was described as an absurd proposition.

Mr Stradford does not suggest that the common law should revert to general subject matter as a basis for limiting liability for officers, yet that was the position at common law, and yet Mr Stradford says, well, the common law cannot develop in a way that is inconsistent with the Constables Protection Act when, in reality, what Mr Stradford wants is a position that was harsher for the officers than was the position at common law. Those submissions, in our submission, should not be accepted.

I think we have dealt with most of the points I wish to make. In our reply at paragraph 27 we deal with the proposition that somehow Queensland’s situation, or arrangements, are akin to a public insurance scheme. It is a very strange public insurance scheme, in my submission, in which Queensland would make itself liable for the actions of officers who give effect to invalid Federal Court warrants but, on Mr Stradford’s view, would be protected in pretty much every other circumstance.

If there is a balance to be struck, the balance is to be found in the terms of section 250 and 249 which, as your Honour has indicated, your Honour the Chief Justice has indicated, would appear to replicate Sir Samuel Griffiths’ view of the common law, which has support from some of the cases to which I have taken your Honours.

Your Honours, unless I can be of further assistance, those are Queensland’s submissions.

BEECH‑JONES J: Could I just get that – that is, bound to execute the law, warrant within, effectively, the subject matter jurisdiction, no knowledge of defect, is that right?

MR DEL VILLAR: Yes.

BEECH‑JONES J: I see.

MR DEL VILLAR: Thank you, your Honours.

GAGELER CJ: Thank you. Mr Wood.

MR WOOD: Your Honours, we listened this morning to the Solicitor‑General in the submissions he made and the questions that came from the Bench, and his submissions covered a lot of the ground that we cover in our written submissions. So, having heard the debate that occurred this morning, there are only five things we wish to say in addition.

The first deals with the section 17 point, and we adopt what the Solicitor‑General said, but we go one step further – and this is in paragraph 53 of our submissions. We not only say that the quality or the effect of the order that was made pursuant to the section 17 power has the quality or effect as if it was an order of this Court, that is, it is valid until set aside, but, importantly, there is a corollary, and that is that power must bring with it the immunity of a High Court judge. That is, as we say in our submissions, the potential liability of the judge attending the exercise of the power is the same, because it is the same power.

Secondly, there was a question raised by Justice Gleeson ‑ ‑ ‑

GAGELER CJ: I am sorry, are you saying that the – I thought we were talking about a common law immunity, but you have elevated that to a statutory immunity?

MR WOOD: That is correct. That is in the very last part of our submissions – that is exactly right, your Honour.

GAGELER CJ: An implied statutory immunity.

MR WOOD: Exactly. Justice Gleeson asked a question about the concurrent jurisdiction of the Family Court and the Federal Circuit Court. The jurisdiction was, at the time, effectively identical. There were some very small differences – that is, the Family Court was the only court that could deal with maintenance obligations with New Zealand, degrees of nullity of marriage and proceedings for declaration of marriage, divorce or annulment, but otherwise the jurisdiction was concurrent.

In relation to this matter, that is, an application for a property adjustment, it could have been issued in the Family Court or in the Federal Circuit Court, and the provisions that dealt with those proceedings – that is, the transfer provisions – could have allowed it to be moved from one court to the other. That is, the jurisdiction that the judge exercised in this matter was identical to the jurisdiction that a judge of the Family Court would exercise.

As Justice Edelman said, if a Family Court judge exercised this power and did what the judge below did, then we would not be here. In fact, Durack is an example of that. The Solicitor‑General took the Court to that case this morning. Thirdly ‑ ‑ ‑

STEWARD J: Just before you go on, am I right in thinking that under the merged court system now, litigants do not even get to choose, in family, matters whether it is Division 1 or Division 2? It is the court that allocates it, depending on its complexity?

MR WOOD: That is quite correct, your Honour. It is different now, as a result of the creation of the Federal Circuit and Family Court of Australia, from 1 September 2021 there is a so‑called single point of entry. It goes into the Division 1 of that new court.

STEWARD J: Okay. Thank you.

MR WOOD: Relatedly – and this, again, is in answer to Justice Gleeson’s question – the process for appointment to the two courts was the same, effectively. The qualifications were effectively the same. Tenure was the same. And, in fact, there was capacity for dual appointment to both courts – to the Federal Circuit Court and the Family Court.

Thirdly, the Chief Justice asked a question about whether the common law might have changed because of the growing professionalism of the courts, and Justice Beech‑Jones asked a question about whether what we are saying would apply to the State courts. We have set out in our submissions at paragraph 32 why we say that that fact – the growing professionalism of the courts – should lead to the Court declaring that there is no exception for what we might call non‑superior court judges from the principle of judicial immunity – that is, the absolute liability.

There might be – and this does not arise in our case – the possibility that there might be some State courts somewhere that have not exhibited the qualities of the professionalisation of the judiciary that we now see in the federal system. But, leaving that aside – and we have not looked at every possible court in the State system – the answer to your Honour’s question would be yes.

Fourthly, we identified that the immunity exists for the community. As Chief Justice Gleeson said, the immunity from civil liability is conferred by the common law, not as a purpose of the office for the private advantage of the judge but for the protection of judicial independence in the public interest, and there is no good reason that the value of judicial independence should depend on the status of the judge.

Lastly and fifthly, there was a debate at the end of the morning about the outer limits of the absolute immunity. It is important to recognise that in this case, that issue does not arise. If one looks at the pleading in this case, at paragraphs 30 to 38, the errors said to have been made by the judge were set out – those six errors set out at paragraphs 31 to 36. At paragraph 37, the plea was that in the premises, because of those errors, Judge Vasta exceeded his jurisdiction, and at paragraph 38, the plea was that he lost the benefit of the judicial immunity to the extent it is available to inferior court justices.

The plea started with, at paragraph 30, a plea that the Federal Circuit Court was an inferior court. The whole case was run on the basis that Judge Vasta was only entitled to a qualified immunity. There was never any debate, never any argument, about whether, in the alternative, if the judge was entitled to the absolute immunity of a so‑called superior court judge, that he fell outside the protection of that immunity.

That was made doubly clear by the request for particulars, which were delivered in February before the filing of defence, when lawyers for the judge asked: are you alleging that the judge knowingly acted in excess of jurisdiction? Are you alleging that he acted wilfully in excess of jurisdiction? Are you alleging he acted in bad faith? Are you alleging he acted in absence of good faith? Are you alleging he acted maliciously? Are you alleging he acted with any other misconduct? The answer to all of that was no.

BEECH‑JONES J: There was a finding that he acted in reckless disregard of Mr Stradford’s rights and due process in the damages part of the judgment.

MR WOOD: Yes, your Honour, that part you will see, but without any of the type of finding of the type I have just described.

GORDON J: That would give rise to exclusion.

MR WOOD: I beg your pardon, your Honour?

GORDON J: Which would give rise to loss.

MR WOOD: Yes. It may well be that the outer limits of this absolute immunity for superior court judges is, as the Chief Justice said, a purported exercise of the available jurisdiction. It might be that, as Justice Beech‑Jones said, it is actually the purported exercise of the judicial function. It might be judicial capacity or “acting judicially” in the way explained by the primary judge at paragraph 206, that:

acting bona fide in the exercise of his or her office and under the belief that he or she has jurisdiction, though he or she may be mistaken in that belief –

That may be the test, obviously the question of what “bona fide” means would have to be explored in the appropriate case. The New Zealand case of Nakhla that the Solicitor‑General referred to suggests to us the best description:

a broad and general authority conferred upon his court and –

the judge:

to determine issues between individuals or between individuals and the Crown.

The Chief Justice put that in the context of our case, that is, a Chapter III judge, and said, if there is purported exercise of the jurisdiction over the matter, which, of course, there was. This was a matrimonial cause, where there was an application for the adjustment of property, where the judge thought that one of the parties had not made full and frank disclosure, and punished them. It falls squarely within the subject matter that the judge was vested with. None of that has been disputed, or was disputed, by our learned friends.

We did, thinking they might change their case, put in a ground of appeal – ground 5 – that sought to challenge one of the factual findings of the judge. Having regard to the way that our learned friends have not changed their case, we do not press ground 5 of our appeal. That is all I wished to say by way of oral submissions, other than to point out, in our outline of oral submissions, I have addressed points 2 through 6, and points 7 through 10 we are content to rely upon what happened this morning and in our written submissions, and point 11 I have just addressed you on.

Is there anything further?

GAGELER CJ: Thank you, Mr Wood. The Solicitor‑General for South Australia.

MR WAIT: Your Honours, South Australia has filed written submissions that address the nature of the errors committed by Judge Vasta. South Australia says that the kinds of jurisdictional errors that may be committed by inferior courts are of a relatively narrow compass, that the confined nature of jurisdictional error as that concept applies to inferior courts promotes both certainty, but it also can be understood to promote judicial independence by protecting judicial officers of inferior courts from civil liability other than in egregious cases.

BEECH-JONES J: Are you adopting a different meaning of jurisdictional error to Craig – we are talking about a narrower version than Craig?

MR WAIT: No, your Honour, we are adopting Craig as the standard of jurisdictional error that we say is relevantly applicable.

GAGELER CJ: You say that there was jurisdictional error here, at least on two bases?

MR WAIT: We do, that is correct. Thank you, your Honour. We say –
and this is set out at paragraphs 12 to 16 of our written submissions – that at least Judge Vasta fell into jurisdictional error on the basis of committing a gross denial of procedural fairness in declaring Mr Stradford as being in contempt and in ordering his detention. We say there is another basis for the jurisdictional error, that there had in fact been no finding of a failure to accord with the earlier court’s order on disclosure. We say that at least on those bases.

We also, however, say in some detail, that I do not intend to go into in any detail now, that the trial judge, with respect, may have been too broad in considering the types of errors that might expose the judge to liability in the sense, that, for example, failing to proceed with relevant rules was one example amongst others that I have elaborated on in writing. But we say that – perhaps I can put it this way – as I understand it, the Commonwealth and Queensland suggest that the nature of jurisdictional error of inferior courts operates at such a level that it cannot now equate with the same notion of the limits of judicial immunity.

What we say is rather to the contrary – picking that up and turning on its head somewhat in saying, in fact, it is because inferior court judges are exposed to civil liability when they act beyond jurisdiction that the notion of the jurisdictional error by an inferior court must be kept in very close and narrow compass.

Having set that out in writing, it is my intention now to proceed to the way that we then address the gaoler’s liability issue, which we say can and should be addressed separately and distinctly to the question of the judicial immunity question. We do that by pulling apart the jurisdictional errors that go to Judge Vasta’s findings of contempt and orders for detention on the one hand and what we say conditions the jurisdiction of Judge Vasta to have executed the warrant.

The lengthy survey of old English authorities undertaken by the trial judge appeared, we say, to omit consideration of some relevant and recent Australian case law. In particular, the trial judge appears not to have considered a number of authorities that have applied the reasoning of Justice Dixon in Posner. If I could take the Court to Posner, it is in volume 4 behind tab 33, and the key passage, we say, to the reasoning of Justice Dixon is found on page 483.

The important point that we seek to draw is that Justice Dixon is not analysing the question on the basis of a common law defence or a common law immunity of any sort. Rather, his Honour is undertaking an exercise of statutory construction. And that, if I could take your Honours about two‑thirds of the way down the page at page 483 – of course, the factual context here was different ‑ ‑ ‑

GAGELER CJ: Can you just tell me where this is going – what statute are we construing? What meaning are we giving it here?

MR WAIT: Certainly, your Honour.

GAGELER CJ: How are you translating it to this case?

MR WAIT: The way that I am doing this, your Honour, is to say that Justice Dixon adopted the method of statutory construction. That is then picked up in more recent Australian cases, including Robertson, a Western Australian Full Court decision; the case of Tulloh, a more recent 2020 decision of the Western Australian Court of Appeal; a single judge decision of Justice John Dixon in Abdulrahim in the Victorian Supreme Court; and then, very recently, in a case handed down only last week, by a judgment of Justice McDonald in our Supreme Court.

Those cases have adopted from Justice Dixon in Posner and the reasoning in Robertson, and have applied – have not searched for the existence or absence of a common law defence, but have instead looked for, under a statutory construction process, of whether a warrant – despite there being flaws or errors in the issuing of the warrant – nonetheless, they have approached the question as a matter of statutory construction and said that the warrant is valid on its face, and therefore affords protection ‑ ‑ ‑

EDELMAN J: Was any of this argued before the primary judge?

MR WAIT: No, I do not understand that this was put before the primary judge. And the respondent says ‑ ‑ ‑

GAGELER CJ: Can I just go back – what statute are we construing and what meaning are you giving it, relying on this line of authority?

MR WAIT: Yes. So, the statute is the statutory source for the imposition of penalty for contempt of court. So, the statutory provisions are those provisions that the Court was referred to earlier today, namely ‑ ‑ ‑

GORDON J: By that, you mean section 17 and Parts XIIIA and XIIIB.

MR WAIT: Yes. Thank you, your Honour.

EDELMAN J: But you want to say that the warrant was validly issued.

MR WAIT: Yes, your Honour. I want to say the warrant, being regular on its face, despite the fact that there were jurisdictional errors that went to the finding of contempt and the making of the order of imprisonment, that finding – that flaw – does not infect the warrant, and the real gist of that reasoning is the reasoning that we can see flowing through Posner, Robertson ‑ ‑ ‑

EDELMAN J: So, the entire case has proceeded on the wrong footing?

MR WAIT: Well, your Honour, what we really seek to do is place the common law defence that Queensland and the Commonwealth seek to make good – all we seek to do, really, is to place that into a statutory framework and put it on a statutory footing. So, in a sense, we say that there is certainly no factual prejudice to the respondent in terms of the facts that might have been lead, because the content of the implication that we seek to draw is in the same terms as the common law defence that Queensland and the Commonwealth have already put and argued.

GORDON J: The passage that Justice Dixon in Posner at page 483, is it the paragraph commencing, “When there has been a failure”?

MR WAIT: Yes. It is about five lines down:

it is only as a result of the construction placed upon a statute that the order can be so considered so entirely and absolutely devoid of legal effect for every purpose as to be described accurately as a nullity.

GORDON J: I had always read that, or at least read it in preparation for this case, as having two effects. The first is that if, on its face, it is not bad or unlawful, then that is fine. But otherwise, one has to go to the statute only if it is to show that there is to be a different effect in terms of the way in which the warrant, absent something on its face, is to be construed. So, for example, I would have thought, an express statutory provision which said, unless certain conditions are met, then it is not valid.

MR WAIT: Yes, and so, your Honour, it is certainly the case that here there is no express statutory provision that is dealing with the issuing of a warrant ‑ ‑ ‑

GORDON J: How does this help you?

MR WAIT: Your Honour, it is simply providing, in a sense, an alternate way of reasoning which is sourced from statutory basis rather than from the discerning or the maintenance of a common law defence.

GORDON J: I will put it differently: there is nothing in the statute to suggest that the common law rule does not apply.

MR WAIT: Yes, your Honour, that is perhaps one way of putting it. In a sense, we are dealing with a type of boundary line between whether a jurisdictional error ought to be construed in an administrative law sense as being implied from a statute or imported from the common law. All I am trying to do is say that from the authority of cases like Posner and the reasoning in Posner that now tracks through into a number of authorities which we have collected, that in fact we can see that a modern approach is to discern the validity of a warrant based upon the regularity on its face as being a matter that arises as a question of statutory construction rather than as a standalone common law defence.

GAGELER CJ: You say there is jurisdictional error here.

MR WAIT: Yes, your Honour. We accept that there is jurisdictional error in relation to the earlier steps undertaken by the judge, but just as the Court in Robertson found that there had been an error in the calculation of a sentence that operated there, the Court then went on to say that nonetheless the same magistrate executed a warrant, and that that warrant was valid on its face, and ‑ ‑ ‑

EDELMAN J: There is a long line of cases on search warrants that would all be wrong if your submission is right.

MR WAIT: Your Honour, we say that important distinctions arise between executive warrants and judicial warrants, so we do not say that this rule can apply universally. In fact, we really say it needs to apply based in its statutory context, and here when we are dealing with a power to imprison for contempt we are squarely within a judicial context. Your Honour, perhaps I could just give your Honours some references to some of the relevant paragraphs that we rely on. The recent decision of Justice McDonald in the Cosenza judgment that I referred to, her Honour’s relevant reasoning is at paragraphs 478 to 485 ‑ ‑ ‑

BEECH‑JONES J: Is that in our volume of authorities?

MR WAIT: No, it is not, your Honour, because it was handed down only last week. It has been provided to the Court, however.

BEECH‑JONES J: What was the paragraph number, sorry?

MR WAIT: Paragraphs 478 to 485. Then we have the decision of Justice John Dixon in Abdulrahim, and there are some paragraph numbers: 65, 71, 83, and 90. The warrants that were considered in Abdulrahim were of a different character. They were warrants for arrest, and they were warrants that were issued by parole board. Your Honours, what I am not trying to do is to say that all of these cases are dealing with warrants of commitment issued by inferior courts, but perhaps I could just take your Honours very briefly to the reasoning in Abdulrahim to try to give your Honours a flavour of what we say is a developing line of authority.

In Abdulrahim, which is volume 6, tab 42, the plaintiff was on parole, the Parole Board decided to cancel the parole and issued a warrant for the plaintiff’s arrest, and then 72 days later, the Parole Board’s cancellation was quashed by the Supreme Court. The plaintiff then sought damages for false imprisonment, and the Secretary to the Department of Justice argued that despite the invalidity of the decision of the Parole Board to cancel parole the warrant issued by the Board remained valid.

If I could just take your Honours to paragraph 55 of the reasons of Justice John Dixon, not to linger on them but simply to note that we see his Honour there refer to your Honour Justice Gageler’s reasoning in Kable (No 2) before moving on to consider the plurality’s reasoning in Kable (No 2). We then see his Honour at paragraph 63 referring to the Robertson Case.

Then over at page 29 of the judgment, his Honour sets out the passage of Justice Dixon from Posner that I have referred to. His Honour was not making the mistake of conflating inferior courts or superior courts with bodies like the Parole Board. The real gist and force of his Honour’s statutory construction reasoning is consistent with the logic of the common law position that Queensland and the Commonwealth contend for. The paragraph I wanted to read from is paragraph 67, where his Honour says:

As with Kable, the reasoning is limited in its strict application because the court was emphasising the finality and existence of court orders issued by judicial officers, which his not the case here. However, once again, the analogous force of this reasoning is compelling when construing the Corrections Act . . . The reasoning about third parties being able to rely on final administrative decisions, such as issued arrest warrants, pending any review, and the benefits of legal order, coherence, and certainty in that regard, plainly represent the legislative intention.

This type of reasoning also moved the Western Australian Court of Appeal in Tulloh.

EDELMAN J: It seems to me that there are two different arguments that you are running. One is to the effect that as a matter of construction one can treat the warrant as valid, and the other is that irrespective of whether one uses the language of validity or invalidity of the warrant, there is this – what has in other contexts been called the second actor theory, that there can be valid legal effect of an invalid warrant.

MR WAIT: Yes. Indeed, your Honour.

EDELMAN J: You are running both of those arguments sort of together.

MR WAIT: Your Honour, I must admit to a degree I have struggled semantically with where the boundary between those two arguments butts up against one another, and I feel like perhaps it is a question of favoured – the way one favours to express the point. But, yes, I agree your Honour, that is exactly the point.

We are saying that the earlier error cannot undermine the validity of the warrant for all purposes as a matter of statutory construction because otherwise it has the absurd or, in the language of Project Blue Sky, the manifestly inconvenient result that has been laboured today and gone over in great detail.

BEECH-JONES J: In this case there was a statutory power to issue a warrant, was there not?

MR WAIT: No, I do not believe there was, your Honour.

BEECH-JONES J: Section 77B, is that what it is? If one looks at pages 8 to 9, is that not:

by warrant signed by the Secretary or member of the Board –

MR WAIT: I am sorry, your Honour, I thought you meant in the present case.

BEECH-JONES J: No, in Abdulrahim.

MR WAIT: In Abdulrahim there was, your Honour.

BEECH-JONES J: So, there was something to construe in that case.

MR WAIT: Your Honour, yes, that is right. The starting point here is a bit different, and here we are talking – if I can just step very shortly through then the construction, because it really operates in quite a different way when you are talking about construing the powers of a court instead of construing the powers of an executive body like a parole board where you have a prescriptive statutory regime. Here it is not contentious that there is a power to imprison for contempt, it is not contentious that there is a power to give effect to that, it is not contentious that there is an implied power to issue a warrant to third parties to give effect to that; all of that much have a statutory source because we are dealing with an inferior statutory court.

What we then invite the Court to do, as a question of construction, is to imply the condition of validity that attaches to that exercise of statutory power. There is a sense in which there is little text there for this implication to be drawn, I must accept that. However, we would make the observation that it is not altogether unusual in the case of bare statutory powers for their jurisdictional limits to be implied in some detailed form.

BEECH-JONES J: But do I get at this: all we have is a statutory power to imprison, make an order for imprisonment; no statutory power to issue a warrant, that is just implied.

MR WAIT: Well, your Honour, sorry ‑ ‑ ‑

BEECH-JONES J: So, no express ‑ ‑ ‑

MR WAIT: Not meaning to cavil, there is no express ‑ ‑ ‑

BEECH-JONES J: ‑ ‑ ‑ statutory power.

MR WAIT: Yes, yes.

BEECH-JONES J: It is accepted that the power to imprison was subject to jurisdictional error, and following Pelechowski, no effect, but you say, by a process that I am still a bit unclear about, we should infer that the exercise of the implied power was nevertheless valid.

MR WAIT: Yes. That is the submission, your Honour, and the submission is – one might say – a large implication to be drawn, but we say that it arises from, and we can collect – and I will not go over them again – but the manifest absurdity of the result that it would otherwise entail ‑ ‑ ‑

BEECH‑JONES J: The order to imprison you for whatever period of time is a nullity.

MR WAIT: Yes.

BEECH‑JONES J: How long can you keep them in gaol for, under the warrant?

MR WAIT: Your Honour, until the warrant is set aside.

BEECH‑JONES J: What, forever? It does not expire?

MR WAIT: As in cases like Abdulrahim, as in cases like Robertson, it was until the terms of the warrant had expired, was the consequence of that construction process.

EDELMAN J: That would not be the same as what is the second argument that you are running, the second actor theory. That just provides legal consequences for the second actor.

MR WAIT: Yes.

EDELMAN J: But it does not mean that the person can be kept in prison.

MR WAIT: Yes, your Honour. I am trying to answer consistently to your Honour and your Honour Justice Beech‑Jones. Yes, that is right, Justice Edelman. We do say that it only provides protection to the second actor, so it only provides protection to the gaoler or the constable. It does not, and no part of our case says that the warrant provides protection to Judge Vasta. We say that the invalidity of his order means that he cannot rely upon the orders that he made as a defence to a claim against him. That is one difference that emerges.

If I might just say, finally, perhaps in light of the fact that the common law position and the statutory construction position that we advance really travel very much in parallel, to the extent that there is an advantage in approaching the matter as a question of statutory construction, it probably lies no more than in adopting what we suggest Justice Dixon described as a modern approach instead of looking through for common law immunities and privileges, and that is particularly the case when the common law generally does not favour, find, the identification of privileges and immunities that attach to executive officers. Instead, we say such an immunity ought more properly be sourced in the statute.

Unless the Court has any questions, they are our submissions.

GAGELER CJ: Thank you. Mr Herzfeld, you have four hours to present your argument. Do you want to use your first 15 minutes now?

MR HERZFELD: I can if your Honours wish, provided we have dispensation with supplying an oral outline, because it was not even within the realms of my contemplation that the appellants would finish, quote‑unquote, “early”. I am in your Honours’ hands as to whether you want me to start.

GAGELER CJ: Your choice.

MR HERZFELD: Over to me. I am tired, your Honours. Let us start at 10.00 am tomorrow.

GAGELER CJ: The Court will adjourn until 10.00 am tomorrow.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 15 AUGUST 2024