Alcock v Commonwealth of Australia

The earlier pleadings 4 In the earlier reasons I examined what was effectively a third draft of the statement of claim and identified several features of that pleading. Some parts of it I found to be objectionable in form, and not to comply with O 11 (see earlier reasons, [14]-[15]; [27]-[28]). Parts of it were embarrassing in that they failed properly to identify the legal or factual matters from which they proceeded (see earlier reasons [16]-[21]; [29]-[34]; [35]; [45]-[46]; [57]; [58]-[59]; [60]-[64]; [71]-[72]). Parts of it were tendentious or argumentative in form, and may more comfortably have found a place in written submissions (see earlier reasons [36]-[37] et seq.; [65]-[68]). Also contained in the amended statement of claim as it then stood were paragraphs which did not disclose, or contribute to disclosing, any cause of action: see, for example, [68] and [69] of the earlier reasons. Other paragraphs of the previous amended statement of claim were infected by various other formal and substantive defects. 5 However, there were also indicated in the earlier reasons respects in which a statement of claim had to establish a basis for a particular form of relief such as "compensation for the loss of an exploitable resource"; see [49] and [50] of the earlier reasons. As already indicated, the orders made on 4 August were framed to afford the applicant an opportunity to correct defects of that kind by setting out each material fact which was said to give rise to a head of relief claimed by the application.

The current pleadings 6 I do not propose to repeat the exercise in which I engaged in the earlier reasons of identifying each defect in the pleading. It is enough to say that the defects disclosed in the earlier reasons have not been cured, and I cannot discern in the fourth version of the statement of claim, filed on 11 September 2009, a sufficient articulation of a cause of action even if the continued presence of defects of form or substance are disregarded. 7 To take but one example of the many vices which remain in the current pleadings, the paragraphs immediately under the heading "Cause of Action" are in these terms: 7 The Applicant is entitled to valid licences and quota holding units issued by the First Respondent for a minimum area from the border with South Australia along the Victorian coastline to the border of New South Wales operating under a valid Plan of management issued by the Australian Fishing management Authority (AFMA) 8 The Applicant states that the actions of the second respondent in the creation and implementation of the marine parks and sanctuaries and the prohibition of fishing therein, were the exercise of power in excess of lawful jurisdiction. 9 The applicant states that had the first respondent and the second respondent not entered into an arrangement known as the "Offshore Constitutional Settlement" inconsistent with Section 51(x) of the Australian Constitution 1900 of if the marine park legislation had been consistent with section 7(c) of the Coastal Waters (State Powers) Act 1980 (Cth) then he would not have been prevented by the second respondent to obtaining just compensation from the Commonwealth. 10 The applicant states that the agreement between the first and second respondents known as the "Offshore Constitutional Settlement" is an attempt to amend the Commonwealth Constitution. In judgment of the full High Court of Australia, Gleeson CJ in Re Wakim (1999) HCA 27 stated; "Approval of the legislative policy is irrelevant to a judgment as to constitutional validity; just as disapproval of the policy would be irrelevant. It is argued that the legislation is unconstitutional. That argument must succeed or fail on its legal merits. If it is correct, then the legislation is invalid. The Parliaments of the Commonwealth, the States, and the Territories cannot, byco-operation, amend the Constitution." 11 The applicant states that it is not for the Parliaments of either the States or the Commonwealth to do by indirect means what cannot be done directly. In the Commonwealth v Tasmania (Tasmanian Dam Case), (1983) HCA 21; DEANE J. states; "72. In Bank of N.S.W v. The Commonwealth [1948] HCA 7; (1948), 76 C.L.R. 1, at p.349, Dixon J. pointed out the s.51(xxxi) is "not to be confined pedantically to the taking of title… to come specific estate or interest in land recognized at law or in equity…,but… extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property". In the same judgment, at p.350, his Honour was at pains to emphasize that the Constitution did not permit the Parliament to achieve by indirect or devious means what s.51 did not allow to be done directly. ( at p 555)" 12 The applicant claims as against the first respondent and the second respondent that they have warranted that his statutory fishing licence rights and quota holdings are issued and protected by the Australian Constitution section 51 (x) and 51 (xxxi) and section 7 of the Coastal Waters (State Powers) Act 1980 and 167A of the Fisheries Management Act 1991 (Cth). The prefatory words "the applicant states" or "the applicant claims" remain objectionable in form, as I indicated at [15] of the earlier reasons when discussing their appearance in the amended statement of claim then under consideration. More significant and less easy to cure is the continuing failure in the paragraphs just quoted to plead in summary form, as is required by O 11 r 2, the material facts upon which the applicant relies, as establishing some infraction of whatever rule the plaintiff contends is illustrated by cases like Re Wakim or the Tasmanian Dam Case. 8 Parts of the substituted statement of claim are, like their counterparts in the earlier attempt, embarrassing in form. An example of this defect is paragraph 14, which, I consider, pleads matters which are entirely superfluous to making out any conscionable cause of action: 14 Diving in the open sea on a storm exposed coast such as Victoria's is inherently dangerous and few divers are able to continue their diving above the age of 50. Development of shallow water diving techniques and equipment during World War II enabled establishment of the industry. 15 The harvest takes place without mechanical aids such as nets or trawl boards except for air supply systems of various types depending upon the depth. The operations are very species specific with no by catch being taken. 16 The fishery does not disturb the marine environment and its operation poses no risks to other species of marine animals. It is considered to be an ecologically sustainable fishery, with a strong commitment by the operators to longevity and sustainability. 17 At the commencement of the abalone fishery in the early 1960's a bag of abalone was worth less than a bag of mussels. It was through the hard work and development of the industry by participants that saw it rise to a successful export industry. It is unnecessary to say more about this aspect of the present version of the statement of claim. 9 The tendentious or argumentative form of paragraphs of the pleadings to which I referred in the earlier reasons has similarly not been remedied in the substituted statement of claim. As well as paragraphs 7 to 12 which are reproduced at [7] of these reasons, the following paragraphs, which appear in the substituted statement of claim under the heading "Settled Law", are replete with material of the same kind; 30 This action was commenced on the basis of law settled by decisions of the Full Bench of the High Court of Australia and not revoked by later decisions. The cases and principles settled are as follows. Particulars i. New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 (17 December 1975) By majority the Full Bench held that the State of Victoria, a state intervening in the case, had no authority over the seas and submerged lands adjoining the state territorial limit the tidal low water mark Barwick CJ for the majority at 31 said "I turn now to the second issue. In this connection, it is submitted that the Australian colonies in 1900 had proprietary rights in the subsoil of the territorial sea washing their shores and dominion over those seas as in international law. The submission goes so far as to assert that the boundaries of each colony were to be found at the limit of three nautical miles from their respective coasts and that the waters and their subsoil were part of the waste lands of the Crown. As an alternative, it was submitted that legislative and executive authority was vested in the legislature and government of each colony over the territorial seas and the subjacent soil as part of the waste lands of the Crown, at least from the time a colony was granted self-government. It was said that the territorial seas were part of the "King's waste" and were included in the grant of legislative power at the time of the institution of self-government in the colonies. (at p366) ii. As a result of these assertions, by the States, it was submitted that the continental shelf and the territorial seas and subsoil were vested in the colonies in 1900, either by original settlement or upon the grant of self-government. (at p366) iii. It was finally submitted that ss. 106-107 of the Constitution maintained these property rights and legislative power in the States so that the Commonwealth Parliament could not by the exercise of its legislative power with respect to external affairs trench upon such properties and rights… What are called "particulars" of paragraph 30 of the substituted statement of claim continue in this vein for another six paragraphs. Then, under the heading "International Treaty Requirements", are a further 13 paragraphs in which are to be found references to various United Nations conventions, extracts from Australian cases, a narrative account of a 1984 referendum, extracts from various Commonwealth Acts, and a lengthy extract from a case heard in the Supreme Court of Canada accompanied by several paragraphs of assertions as to its effect. 10 No respondent could reasonably be required to frame a defence to what is to be found in paragraphs 30 to 45 of the substituted statement of claim. At their highest, those paragraphs embody submissions which, had the case been properly pleaded and had it proceeded to trial, might have been advanced in argument. The paragraphs are completely inapt to define any matters which the applicant wishes to put in issue. Nor do they contain any allegation of fact susceptible of proof by admissible evidence or which either respondent might reasonably admit. To the extent that they purpose to raise a matter of law - a course permitted by O 11 r 9 - they do so tendentiously by referring to legal sources or authorities. They do not, as O 11 r 3 demands, identify the relevant point of law as briefly as the nature of the case admits. 11 As already indicated, I am not disposed to identify and discuss each and every defect in the substituted statement of claim. In my view, those defects are substantially the same as those which infected the previous amended statement of claim, and similarly render the present proceeding liable to be struck out. However, it is necessary to say a little more about the orders which the Court should now make.

The applicant's conduct before 30 October 2009 12 On 8 October 2009, the applicant's substituted statement of claim having been filed pursuant to the leave granted by my orders of 4 August orders, the second respondent, the State of Victoria, filed a notice of motion, which was duly made returnable on 30 October 2009. On 16 October, the first respondent, the Commonwealth, filed its own notice of motion, which was made returnable at the same time. The general relief sought by those motions is outlined at [1] above. 13 In the days leading up to the return date for the motions, there was some correspondence between the parties' representatives, which has been deposed to in the affidavits of Mr Rogers of the Australian Government Solicitor, who has carriage of the matter on behalf of the first respondent. He deposed that, on 23 October, his office was notified by the applicant's solicitors, Waters Lawyers, that they had instructions to apply for removal of this matter to the High Court under s 40 of the Judiciary Act 1903 (Cth). On 26 October, Mr Rogers responded to that letter, indicating that his client would oppose any adjournment of the hearing before this Court on 30 October. His letter continued, so far as is relevant: We also consider that the applicant's further amended pleadings filed on 11 September 2009 are manifestly defective, so that there would be no utility in removing the application to the High Court, and that the High Court would not order the removal of the application in such circumstances. In this regard, we refer you to the High Court Transcript in the matter of Link v NSW Minister for Primary Industries & ors [2008] HCA Trans 307… We note that Waters Lawyers (then Waters Timms Lawyers) acted for Mr Link in relation to that application.

This matter could have been commenced in the High Court if the applicant had chosen to do so at the time. There has been no reason advanced on behalf of the applicant as to why there might be any material change of circumstance since the matter was commenced in June 2008 which would support a change of forum.

We consider that the case of Gazan v State of Victoria & Anor (VID 1114 of 2007) provides a persuasive precedent for the Federal Court in this case to proceed to hear the respondents' motions on 30 October 2009. In that case, the Court refused an application by Mr Gazan to adjourn the proceeding pending resolution of an application to the High Court under s 40 of the Judiciary Act 1903, and dismissed the proceeding. We note that Waters Timms Lawyers acted for Mr Gazan.

The second respondent also opposed an adjournment, on similar grounds. 14 Unaware of the correspondence which was then passing between solicitors, my Associate wrote, on 28 October 2009, to the solicitors for each party a letter which contained this passage: I note telephone discussions with each of you this afternoon, the purpose of which was to gauge the attitude of each of your clients to an adjournment of this matter, in view of the Application for Removal which has been filed in the High Court and given matter number M 96 of 2009. There was no unanimity between the parties about whether the matter should be deferred until after the High Court has dealt with the application under s 40 of the Judiciary Act 1903 (Cth).

Nonetheless, his Honour is reluctant to embark next Friday on a substantive hearing of the motions before this Court. To determine those motions, before the High Court disposes of the application before it, would be seen as anticipating or pre-empting the High Court's decision and, hence, as discourteous to that Court.

15 As there was no unanimity between the parties about an adjournment the motions remained in the list for hearing on 30 October 2009. Counsel for the applicant pressed for an adjournment which was refused for reasons given ex tempore: Alcock v Commonwealth of Australia [2009] FCA 1250. Argument on the respondents' respective notices of motion then proceeded, on the basis that the applicant, whose representative indicated he was not prepared to be heard on the motions at that time, would file and serve written submissions on the motions by 4 December 2009. It is to the arguments advanced on the notices of motion to which I now turn.

The current notices of motion 16 As mentioned, each of the respondents moves under s 31A of the Federal Court Act, either for judgment in its favour or, alternatively, for dismissal of the proceedings. Section 31A was inserted into the Federal Court Act by the Migration Litigation Reform Act 2005 (Cth), with effect from 1 December 2005. It is now in these terms: 31A Summary judgment

(1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 17 It has been acknowledged on several occasions that s 31A "lowers the bar for obtaining summary judgment", the bar having previously been set by authorities such as Dey v Victorian Railways Commissioners (1948) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125: Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J at [5]. See also, on this point, Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 per Mansfield J at [26]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Finkelstein J at 381-2; and per Gordon J at 406. The latter authority has also been discussed more recently in Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117, where a Full Court of this Court refined the views expressed in Jefferson Ford and emphasised that the power reposed in this Court by s 31A is discretionary, and is to be exercised with an eye to all of the circumstances of the case. The Full Court said, in Kowalski, that: [28] It may be observed that the word 'may' in the expression 'may give judgment' in s 31A(1) and s 31A(2) is, in the context in which it is used, permissive, not mandatory. Furthermore the use of the word 'unmeritorious' in the Explanatory Memorandum and both of the second reading speeches, along with the use of the word 'unsustainable' in both of the second reading speeches, indicates that a generally cautious approach should still be adopted to the exercise of the Court's powers under s 31A. In relation to the use of the word 'may' it is instructive to note the recent observations of Gordon J in Jefferson Ford at [128]. However, in our respectful opinion, the preconditions for the exercise of the relevant power, which require value judgments to be made in the absence of a full and complete factual matrix and full argument thereon, lead us to the view that a discretion is reposed in the judge hearing the relevant application to grant summary judgment. [29] The concept of 'no reasonable prospect of successfully prosecuting' a proceeding, which is a relevant issue where summary dismissal is sought under s 31A(2) of the Federal Court of Australia Act, was addressed by Rares J in Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) (2006) 236 ALR 720. At [43] his Honour said: '… The concept of a party having "no reasonable prospect of successfully prosecuting a proceeding" has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. …' [emphasis added] At [44] Rares J said:

[44] In a case to which s 31A applies, where there is a real issue of fact to be decided in the sense identified in the above principle [a reference to [43] and to Hocking v Bell (1945) 71 CLR 430 at 441-2], and, possibly, where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial. …' [30] In White Industries Australia Ltd v FC of T (2007) 160 FCR 298 ('White Industries') Lindgren J said at [50] that s 31A 'is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form'. [31] It remains a matter for a judge hearing a summary dismissal application to exercise some discretion as to whether questions of law that have been raised are so difficult that they ought not to be decided summarily. 18 The circumstances of this case, however, do not call for any finely balanced exercise of discretion turning on a precise interpretation and application of s 31A. That is because the pleadings, even as successively revised, do not sufficiently identify any justiciable issue so as to permit an assessment to be made of the strength or weakness of the applicant's case. 19 In written submissions filed on 4 December 2009 in response to those advanced on behalf of the Commonwealth and the State of Victoria at the hearing on 30 October 2009 it has been contended that the submission for the Commonwealth deals "only with one of the arguments, that is the argument for damages based on property and ignores any claim arising from ultra vires state legislation and constitutionally invalid exercise of powers by the Commonwealth." 20 Reference has been made in the same written submission to an amended summary of argument filed in the High Court on behalf of the Commonwealth in opposition to the application for removal of these proceedings into that Court. That application is noted at [13] of these reasons. According to the applicant, the summary filed in the High Court pursuant to Part 26 of the Rules of that Court discloses that "each of the Respondents have suddenly discovered that there are constitutional questions to be answered." 21 As I understand this contention on behalf of the applicant, it is directed to the submissions in opposition to the removal application that: (a) s 108 of the Constitution is irrelevant to determining the validity of State fishing laws; and (b) the legislative power of the Commonwealth conferred by s 51(x) of the Constitution is concurrent with the legislative competency of the States over the same subject matter, subject to s 109 of the Constitution. The existence of those questions, if it has been acknowledged on behalf of the Commonwealth and the State of Victoria, cannot, without more, bear on the jurisdiction of this Court to resolve a matter in controversy between parties, which has been vested in the Court by a law of the Commonwealth Parliament; see s 19 of the Federal Court Act. The mere posing of an abstract question of constitutional power residing in the Commonwealth or a State does not give rise to a justiciable controversy of that kind. The controversy has to be defined in accordance with the traditional rules of pleading. In a case like the present, the offending purported exercise of Commonwealth or State legislative power has to be identified and an indication has to be given of the constitutional provision which entails invalidity. In respect of an exercise of power by a State, that frequently requires reference to s 109 of the Constitution and an indication of the respects in which the impugned State law is inconsistent with a law of the Commonwealth. The applicant's statement of claim, even in its recently substituted form, signally fails to comply with these basic requirements. It is no answer to say as the applicant did at [16] of his written submissions in response to the criticisms of the pleading made on behalf of the Commonwealth and Victoria that they "could have been dealt with by a request for particulars or by interrogatories if the need arises." As Northrop J pointed out in H 1976 Nominees Pty Ltd v Galli (1979) 40 FLR 242, at 246-247, citing Bruce v Odhams Press Ltd [1936] 1 KB 697 and Rubenstein v Truth and Sportsman Ltd [1969] VR 473, at 476; The particulars … of the statement of claim cannot cure the defects contained in the statement of claim. Similar considerations apply a fortiori to answers to interrogatories which a respondent or defendant should not be required to deliver until the applicant's or plaintiff's claim has been properly pleaded. In addition, as already indicated, any controversy about constitutional validity which may be hinted at, has been embarrassingly overlaid with extraneous and argumentative material. 22 As Mr Rogers noted in the letter which is set out at [13] above, the solicitors for the present applicant have, on behalf of other litigants, previously attempted to raise constitutional issues akin to those under consideration here. My attention was drawn, on 30 October, to the transcripts of the High Court hearing in the matters mentioned by Mr Rogers. In Link [v NSW Minister for Primary Industries & Ors [2008] HCA Trans 307], Kirby J remarked to Counsel who then appeared instructed by Waters Timms Lawyers the solicitors for the present applicant, but who had not drawn the pleading, that: If your client is for the fishing industry and if the fishing industry wants to raise a very important constitutional matter, I am afraid it just has to be done with high professional skill. There is no getting away from it and you cannot look to the Judges to solve the inadequacies of the pleading and the argument. It just has to be done properly, I am afraid, and they have to all kick the can. That is the bottom line, and if they do not, we just cannot, we do not have the time and it is not our proper job to fix it all up and deal with it ourselves. It has to be done by properly prepared pleadings and proper representation from the Bar table. The "high professional skill" of which Kirby J there spoke has manifestly not been deployed in the preparation of the substituted statement of claim. As his Honour indicated in the same passage, it is not part of a court's function to recast a party's pleading so that it articulates some cause of action which the court divines as intended to be pursued by that party. 23 For the reasons which I have explained, the substituted statement of claim must be struck out. Moreover, the history of the applicant's successive attempts to formulate a cause of action suggests that, as presently advised, he is unable to do so. In that sense, the remarks of Gleeson CJ in Trau v University of Sydney (1989) 34 IR 466 can be paraphrased to apply with equal force to the present case. His Honour there said, at 475: Even under the modern system of pleading, considerations of form and substance are often closely intertwined. If one sees that a plaintiff's lawyers are experiencing extreme difficulty in formulating with clarity and particularity their client's cause of action then that is often a very good indication that there is no cause of action. The history of the present matter creates the strong impression that such a problem exists, compounded by an additional difficulty created by a need to manoeuvre around problems concerning periods of limitation. 24 Similar considerations compel there should be no immediate grant of leave to re-plead. Against the possibility that the plaintiff might succeed in his application to the High Court for removal into that Court of the cause or part of the cause, which I have held not to be disclosed by the present statement of claim, I shall stay, until further order, the order which I have just foreshadowed and the consequential order which I consider should be made as to costs. That is that the applicant pay each respondent's costs of the notices of motion respectively filed 16 October 2009 and 8 October 2009, such costs to be taxed in default of agreement. I shall reserve liberty to any party to apply on not less than 48 hours notice in writing to the other parties, presumably after the application for removal into the High Court has been resolved. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Counsel for the Applicant: Mr D C Fitzgibbon

Counsel for the First Respondent: Mr P Gray with Ms P C Knowles

Solicitor for the Respondents: Australian Government Solicitor

Solicitor for the Respondents: Victorian Government Solicitor

Dates of Hearing: 30 October and 11 December 2009

Written submissions filed: 27 and 30 October and 4 December 2009.