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Reehman v Certis Security Australia Pty Ltd & Anor [ 2021] HCATrans 200  (16 November 2021)

Last Updated: 18 November 2021

 [2021] HCATrans 200 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C16 of 2021

B e t w e e n -

SAYD TARIK REEHMAN

Plaintiff

and

CERTIS SECURITY AUSTRALIA PTY LTD

First Defendant

STATE OF NEW SOUTH WALES

Second Defendant

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON TUESDAY, 16 NOVEMBER 2021, AT 2.41 PM

Copyright in the High Court of Australia

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

MR S.T. REEHMAN appeared in person.

MR B.D. HODGKINSON, SC appears for the first defendant. (instructed by FCB Workplace Law)

MR J.K. KIRK, SC appears with MR B.K. LIM for the second defendant. (instructed by NSW Crown Solicitor’s Office)

HER HONOUR: As the State seeks a remitter to the Supreme Court I will hear first from Mr Kirk, then Mr Hodgkinson and then Mr Reehman. Mr Reehman, please listen carefully to what Mr Kirk and Mr Hodgkinson say so that when I ask you to speak you can let me know if you disagree with anything I have said. Is that all right?

MR REEHMAN: That is all right, your Honour, thank you.

HER HONOUR: Thank you. After I have heard from everyone I will probably adjourn briefly and then I will come back on to the Bench and make orders and deliver a judgment. If I change my mind about what I propose to do, that is if I decide not to adjourn briefly, then I will let everyone know my plan, my alternate plan.

Mr Kirk, is there anything that you want to say in addition to your written submissions?

MR KIRK: I will be very brief, your Honour – and for Mr Reehman this is Mr Kirk speaking. We do rely on our written submissions of 5 November 2021. As your Honour would have seen we raised three main points as to why we respectfully suggest the matter is appropriate for remitter.

HER HONOUR: Mr Kirk, I probably should ask you to identify the evidence that you rely on.

MR KIRK: To identify – sorry, your Honour?

HER HONOUR: If you rely on any evidence, you should identify that.

MR KIRK: Of course, your Honour, sorry. We do rely on the affidavit of my instructing solicitor, Timothy Morgan Burston, affirmed on 5 November 2021 and filed on that date which was the same date we filed the submissions. Just to summarise what is contained in that affidavit, it simply gives an overview, as your Honour would have seen, of the other various proceedings which have been brought challenging various of the public health orders made under the Public Health Act 2010 (NSW). I should actually give your Honour a quick update of that affidavit. Your Honour would have seen that it is referred to ‑ ‑ ‑

HER HONOUR: All right. I am sorry, Mr Kirk, let me first ask Mr Reehman – do you have any objection to that affidavit, Mr Reehman?

MR REEHMAN: I do not have any objections to the affidavit, your Honour.

HER HONOUR: Thank you. All right, go on, Mr Kirk.

MR KIRK: Yes, sorry, your Honour. We refer to two proceedings – Kassam v Hazzard and Henry v Hazzard and we note there that proceedings were dismissed in the judgment of his Honour Justice Beech‑Jones in a judgment dealing with the two cases. Since then the matter has been listed for hearing on appeal in the New South Wales Court of Appeal in 13 days’ time, so that is on 29 and also 30 November.

We then refer to a proceeding brought by a plaintiff called Larter – Larter v Hazzard. That was heard together with the Can v Hazzard matter on 4 and 5 November. Her Honour Justice Adamson handed down judgment in the Larter matter I think on about Tuesday of last week and her Honour is still reserved on the Can v Hazzard matter.

In relation to the Athavle v New South Wales matter, as we note there, that was brought in the Federal Court. It related first and primarily to an application for interlocutory relief in connection with the celebration in particular of some Jewish religious holidays. Justice Griffiths in the Federal Court declined interlocutory relief and in mid‑October the proceedings were discontinued by consent.

There is one other matter that is in the Federal Court and still current, to our knowledge at least, involving New South Wales public health orders, and that is Smit v Commonwealth which is in the docket of her Honour Justice Mortimer and that was listed for directions, I think, last week and is proceeding along what will be probably quite a long timetable. I am not in that matter, but I note that it involves claims, at least purportedly, in the nature of a class action and so it is procedurally quite a bit more complicated than the, in essence, public law challenges.

To go then briefly to the reasons why we respectfully submit that remittal is appropriate, as put in our written submissions, first it is relatively evident that there will be contested factual matters and we give some examples in paragraph 7. I would note that the submissions put in by my learned friend, Mr Hodgkinson, refer to some potential conflicts of facts too in relation to issues to do with Mr Reehman’s employment.

Now, true it is that sometimes in this Court matters are capable of being agreed in a special case, but in light of the length and breadth of the issues raised in the amended statement of claim filed by Mr Reehman and taking a practical view of it, it is our respectful assessment that it is unlikely, indeed most unlikely, that the sort of factual issues raised by Mr Reehman will be capable of agreement in a special case. That makes it, therefore, appropriate for remitter. Secondly, we note that ‑ ‑ ‑

HER HONOUR: Mr Kirk, has there been any discussion between Mr Reehman and anyone on behalf of the State about case management in this matter?

MR KIRK: Not beyond providing the submissions setting out what we suggest should happen, your Honour, no.

HER HONOUR: Go on.

MR KIRK: Dealing with the other issues in the submissions, we note, secondly, that there.....similar proceedings under way in the lower courts. The matters I have enumerated are simply the matters involving challenges to New South Wales public health orders. It is a matter of notoriety I think that there are various other matters dealing with, for example, challenges to Victorian orders and, indeed, I think there have been some other matters filed in this Court. To be frank about it, if everyone who wished to challenge a public health order was to come to this Court, this Court might be quite busy dealing with the topic.

Thirdly, we note in paragraph 12 of our written submissions that in any event the issues raised are not of a kind suitable or, indeed, ripe to remain in this Court, in our respectful submission, being reasonably direct. Some of the matters raised are, with respect, misconceived and we identified at least a couple of those in paragraph 12. Others are not well articulated. That is not to – we are certainly not seeking summary judgment or anything like that, but they are not the sort of matters which are at a stage of significance or development as to be appropriate to remain in this Court, in our respectful submission.

HER HONOUR: Mr Kirk, are you able to assist me about the likely progress of the matter if it were to be remitted to the Supreme Court as opposed to heard in this Court?

MR KIRK: I can do that from experience to date. Obviously to state the obvious, but not least for the benefit of Mr Reehman, I cannot speak as to how the New South Wales Supreme Court would handle it. But what I can say is that in the matters to date, which I have identified and are set out in Mr Burston’s affidavit, a significant degree of expedition has been granted to each of those matters to deal with them and thus, as I pointed out, the Kassam and Henry challenges have not only been determined by Justice Beech‑Jones, having been filed I think in September or so, but they have indeed now been already listed for hearing on appeal in two weeks’ time.

So, the Supreme Court has, with great respect, dealt with these matters very expeditiously. Similarly, I would note that the Athavle matter was dealt with very promptly, with respect, by Justice Griffiths in the Federal Court.

As to the court to which it should be remitted, we are certainly not seeking to forum shop. We have suggested the New South Wales Supreme Court because (a) it has been dealing with most of the challenges to the New South Wales law, (b) it does seem the natural home for challenges to New South Wales law. That being said, we note that the Federal Court also has jurisdiction and we would not oppose remitter to that court either. But our primary suggestion is that it go to the Supreme Court.

We have suggested - your Honour would have seen in paragraph 13 of our written submissions - orders to deal with remittal. As your Honour would know, they are orders of a fairly standard kind when remitter is made and, indeed, I think we have just......orders made in this Court. Unless I could assist your Honour any further, they are the submissions of the State.

HER HONOUR: Thank you, Mr Kirk. Mr Hodgkinson.

MR HODGKINSON: Thank you, your Honour. Your Honour, we rely upon the affidavit of Benjamin Josef Gee affirmed on 8 October 2021.

HER HONOUR: Thank you. Mr Reehman, do you have any objections to that affidavit?

MR REEHMAN: Your Honour, I have no objections to that affidavit. Thank you.

HER HONOUR: Thank you. All right, that affidavit will be read. I think I did not say before, but the affidavit of Timothy Morgan Burston is also read.

MR HODGKINSON: Thank you, your Honour. Your Honour, we have supported the submissions of the State for remitter. Although it is not in the written submissions, the point that Mr Kirk made for the appropriateness of the Supreme Court being, on the one hand, but there being no objection if your Honour thought it was more appropriate to remit it to the Federal Court, we would also take that view. Unless there is any question which your Honour has, we continue to support the submissions for the State.

HER HONOUR: Mr Hodgkinson, are you able to assist me to understand what might be the scope of the evidence concerning Mr Reehman’s employment?

MR HODGKINSON: Your Honour, to a point and I only say that because I am – at this stage there has been no joining with Mr Reehman to see what it is that he would assert about his point. Essentially, he has a contract of employment with my client that engages him on a – what is referred to as a permanent part‑time basis and has done since 2010. That contract remains on foot. The services that he has been providing as a security officer have been at the airport and we would say, and, indeed, to be fair to him, he has included in the material that he has presented to the Court some email material which identifies this, that since the issue regarding vaccination and his approach to it has arisen, we have suggested to him that he may like to take up employment in other areas, that is away from the airport, still with my client company. He has chosen not to do that. As he has put in his written material, he does not want his contract changed.

There may be issues as to directions and the lawfulness of the direction. Really, the basis for the direction that is challenged is the public health order and Mr Reehman has made that clear, particularly in the email material that he has annexed to his affidavit in these proceedings.

HER HONOUR: Is there a case made that your client has issued one or more directions to Mr Reehman?

MR HODGKINSON: I am not certain how Mr Reehman would characterise it, your Honour, but we would characterise it and we say it is reflected in the material that he has presented. We have said to him that we must comply with the public health order and that requires him to be vaccinated in order to work at the airport and that if he is not prepared to be vaccinated then he could look to see if there is some other area within the scope of areas in which Certis provides security services that he might be able to operate without being vaccinated.

But other than that, and whether that is characterised as a direction - indeed, it is said in the email material that your Honour has, that we
provided, we are not giving him a direction to be vaccinated and that would be the Certis position, but we have told him that we are required to and will comply with the public health order.

HER HONOUR: Thank you, Mr Hodgkinson. Mr Reehman, is there anything that you want to say in answer to what Mr Kirk and Mr Hodgkinson have said, or in addition to your written submissions which I have read?

MR REEHMAN: Your Honour, I have actually a summary, but before that I would like to just emphasise all the facts. The High Court has two jurisdictions – one original and the other in the appellate jurisdiction. I have a right to access the High Court’s original jurisdiction - a matter is a question of fact and not law. If my matter should satisfy ss 75 and 76 of the Constitution, the Court is compelled to exercise that jurisdiction. There is no discussion not to exercise jurisdiction conferred upon the Court by the Constitution.

If you want I will summarise the rest. The State has the same for the Constitution and the restraint it places upon them. They want to escape the scrutiny and judgment of the High Court. If their act is valid they may prove it in this Court. If I wanted the opinion of the State court judge I would have gone to a State court. I have no interest in the opinion of a State court judge and I have little confidence in their system.

Number 4 – if the High Court of Australia remits my matter to a lower court, their decision would be immediately appealed back to this Court and may result in a very artificial result as per Toohey J and Kable v DPP. It would result in a loss of time, money and more stress and.....of myself and Australian people. Thank you. That is all I would like to say, your Honour.

HER HONOUR: Thank you, Mr Reehman. Mr Hodgkinson, do you want to say anything in reply?

MR HODGKINSON: No, thank you, your Honour.

HER HONOUR: Mr Kirk?

MR KIRK: Just to make one very brief point, your Honour. It is true Mr Reehman has a right to bring proceedings in this Court in the original jurisdiction. He does not, however, have a right to stay here. That right is qualified by s 44 of the Judiciary Act and, with respect, for very good reason. That is all I wish to add, your Honour.

HER HONOUR: Thank you. I propose to proceed as I originally foreshadowed. I will ask for the Court to be adjourned. I will go off the Bench for a few minutes and then I will come back and deliver my judgment.

Adjourn the Court.

AT 2.59 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.21 PM:

HER HONOUR: Mr Reehman, are you still on the line?

MR REEHMAN: Yes, I am on the line, your Honour.

HER HONOUR: Thank you, I will now deliver my judgment and make orders.

By writ of summons filed 20 September 2021, the plaintiff seeks orders “to invalidate the Public Health Act 2010 (NSW), either in whole or in part, or in its practical operation, in particular the Public Health (COVID‑19 Air Transportation Quarantine) Order (No 2) 2021, as it impermissibly contravenes section 51(xxiiiA) of the Constitution”. By statement of claim filed 19 October 2021, the plaintiff specifies the relief sought as a declaratory judgment stating that the Act is invalid (in whole or in part, and if in part, to what extent) or in its practical operation as it is constitutionally invalid. By amended statement of claim filed 4 November 2021, the plaintiff added allegations in relation to an alternate claim arising under s 51(ix) of the Constitution (Cth).

The first defendant is the plaintiff’s employer. The second defendant is the state of New South Wales.

The writ raises a matter arising under or involving the interpretation of the Constitution and it is within this Court’s original jurisdiction^[1]. The Supreme Court of New South Wales and the Federal Court of Australia also have jurisdiction with respect to the subject matter and the parties. Accordingly, the matter may be remitted to either court pursuant to s 44(1) of the Judiciary Act 1903 (Cth), in the exercise of this Court’s discretion having regard to all the circumstances of the case^[2].

The State seeks an order that the proceeding be remitted to the Supreme Court, and the employer supports that application. The State’s application is opposed by the plaintiff.

In support of the State’s application, the State relied upon an affidavit of Timothy Morgan Burston filed 5 November 2021 and the employer relied upon an affidavit of Benjamin Josef Gee filed 8 November 2021. The defendants identified several matters in support of remittal, including:

(1) There are likely to be contested factual matters, including whether the employer has relied upon the Act or the Order to “alter” the plaintiff’s employment; whether the Commonwealth has “enlisted” the services of the States and employers; and whether the Commonwealth and the States have “colluded”, most likely through the National Cabinet to circumvent s 51(xiiiA) of the Constitution.

(2) The Supreme Court is presently seized of other matters which raise similar issues of law, including the consistency of s 51(xiiiA) of certain public health measures dealing with vaccination requirements. In Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 at [261]- [286], Beech‑Jones CJ at CL, adjudicated upon certain arguments about the proper construction of s 51(xxiiiA) of the Constitution and s 7 of the Act, which would likely also be in issue in this proceeding. An appeal from that judgment has been listed for hearing by the Court of Appeal of New South Wales on 29 and 30 November 2021. Two other matters were heard by a single judge in the Supreme Court of New South Wales on 4 and 5 November 2021. In one case, judgment has been delivered; in the other judgment is reserved. The Supreme Court has to date given proceedings raising issues of the kind that the plaintiff seeks to agitate considerable expedition.

(3) A further matter (Smit v Commonwealth) has been filed in the Federal Court of Australia raising, among other things, the issue of consistency between New South Wales public health orders and s 51(xxiiiA). The Federal Court has also heard and determined an urgent injunction to restrain enforcement of New South Wales and Victorian public health orders to allow observance of Jewish religious holidays. The latter application was filed on 31 August 2021 and disposed of on 3 September 2021.

(4) In the circumstances, any question of principle to be considered by this Court concerning s 51(xxiiiA) should have the benefit of the reasoning of one or more intermediate courts.

In opposing the remittal application, the plaintiff made the following submissions. Firstly, he is entitled to invoke the jurisdiction of this Court, and the Court is compelled to exercise that jurisdiction. Secondly, the plaintiff will not have his matter resolved satisfactorily if his only right to access this Court is by special leave to appeal from an appellate judgment of the Court of Appeal of New South Wales. Thirdly, a decision made by the Supreme Court would only be applicable within the boundaries of the state of New South Wales. Fourthly, constitutional issues should be addressed by this Court. Fifthly, the matters of Mineralogy Pty Ltd v Western Australia [2021] HCA 30 and Palmer v Western Australia [2021] HCA 31 were heard in this Court’s original jurisdiction even though no constitutional question was raised. Sixthly, the plaintiff has applied for leave to add David Weisinger, a resident of Victoria and the state of Victoria as parties to the proceeding so that the Court’s jurisdiction under s 75(iv) of the Constitution would be invoked. Seventhly, a remittal to the Supreme Court would cause unacceptable delay. Eighthly, the remittal application is an attempt by the State to escape proper scrutiny and judgment by a federal court.

Dealing with the plaintiff’s submissions in the order stated above, first, while the plaintiff has a right to bring proceedings in this Court’s original jurisdiction, he does not have an unqualified right to compel the Court to exercise its original jurisdiction which is relevantly subject to the broad power of remittal in s 44. As to the second point, there is no reason to accept these submissions. The Supreme Court is equipped to deal with the issues raised by the plaintiff. This Court’s appellate jurisdiction is not inferior to its original jurisdiction as a source of access to justice in this case. As to the third point, the Supreme Court’s decision would not be territorially limited in the manner suggested by the plaintiff. As to the fourth point, the constitutional issues raised by the plaintiff are not an obstacle to the Supreme Court entertaining the claim, and do not, without more, indicate that the remittal power should not be exercised. As to the fifth point, Mineralogy and Palmer did involve constitutional issues, contrary to the plaintiff’s assertion. As to the sixth point, it is appropriate to address the remittal application without regard to the joinder application.

As to the seventh point, the evidence does not support the contention that the proceeding would be more speedily resolved in this Court than in the Supreme Court. In particular, the plaintiff’s submissions do not take account of the fact that the application would be determined in the first instance by a single justice unless there is a reference to the Full Court under s 18 of the Judiciary Act. In this case, that would require use of the special case procedure by which the parties agree the relevant questions of law arising in the proceeding and state the facts necessary to enable the Court to decide the questions raised. The special case procedure is inappropriate where the facts are not found or agreed^[3], or where the facts, though agreed, provide an inadequate foundation upon which to crystallise the legal issues or to demonstrate the necessity of their resolution to the determination of any immediate right, duty, or liability in controversy between the parties^[4]. This Court has recently stated principles concerning the use and misuse of the special case procedure^[5].

As to the last point, there is no evidentiary basis for this contention and no reason to doubt the capacity and independence of the Supreme Court to hear the plaintiff’s matter.

The matters identified by the State demonstrate that this proceeding is inappropriate for determination by this Court in the exercise of its original jurisdiction, having regard to the Court’s other roles as the final court of appeal in matters of general law as well as the final arbiter of the Constitution. Among other things, this Court is not well placed to conduct an expedited hearing in a matter of this kind as has recently been done by the Supreme Court. The proceeding requires case management to identify the real issues in dispute between the parties. Senior counsel for the State noted that the Federal Court has jurisdiction to hear the matter and the plaintiff did not oppose the suggestion that the matter might be remitted to that Court. In the circumstances of this case, it is appropriate to remit the proceeding to the Federal Court.

Accordingly, I make the following orders:

1. Pursuant to s 44(1) of the Judiciary Act 1903 (Cth), the proceeding be remitted to the Federal Court of Australia.

2. The proceeding continue in the Federal Court of Australia as if the steps taken in the application in this Court had been taken in that Court.

3. The Registrar of this Court forward to the proper officer of the Federal Court of Australia copies of all documents filed in this Court.

4. The costs of the proceeding in this Court to date be costs in the cause in the Federal Court of Australia.

Please adjourn the Court.

AT 3.32 PM THE MATTER WAS CONCLUDED

^[1] Constitution (Cth), s 76(i); Judiciary Act 1903 (Cth), s 30(a).

^[2] Johnstone v Commonwealth [1979] HCA 13; (1979) 143 CLR 398 at 402; Pozniak v Smith [1982] HCA 39; (1982) 151 CLR 38.

^[3] Mineralogy Pty Ltd v Western Australia [2021] HCA 30 at [52]; 95 ALJR 832 at 845.

^[4] Mineralogy Pty Ltd v Western Australia [2021] HCA 30 at [10]; 95 ALJR 832 at 839.

^[5] Mineralogy Pty Ltd v Western Australia [2021] HCA 30 at [51]- [61]; 95 ALJR 832 at 845-847 [51]-[61].