Alcock v Commonwealth of Australia

REASONS FOR ORDERING TRIAL OF SEPARATE QUESTIONS PURSUANT TO O 29 OF THE FEDERAL COURT RULES 1 On 4 March 2011, I gave directions intended to facilitate the formulation of certain questions to be decided before any trial in these proceedings. I took that course because the applicant has encountered considerable difficulty in framing a statement of claim which the respondents accept discloses a cause of action and is otherwise immune from striking out under O 11 r 16 of the Federal Court Rules. 2 One version of the statement of claim has already been struck out on 4 August 2009 for reasons which I explained in Alcock v Commonwealth of Australia [2009] FCA 820. A further version was similarly struck out on 17 December 2009 for reasons explained in Alcock v Commonwealth of Australia [2009] FCA 1478. I then declined to give the applicant immediate leave to re-plead or amend his statement of claim. I contemplated that any application for such leave should be accompanied by a draft further amended statement of claim which could be examined to see whether it would cure all the previously identified defects in the earlier versions. A draft further amended statement of claim was filed on 17 December 2010 but, despite apparently extensive correspondence between the solicitors for the applicant and the respective solicitors for the respondents, there has been no agreement that the draft pleading filed on that date provides a suitable basis from which directions could be given for the completion of subsequent interlocutory steps and an eventual trial of this action. 3 A yet further "Revised Further Amended Statement of Claim" has been filed on 5 April 2011 which the applicant's advisers believe overcomes the legitimate objections raised on behalf of the respondents. That view, however, is apparently not shared by the respondents' legal advisers. 4 Against that background, I proposed the formulation of separate questions pursuant to O 29 in the hope that answers to questions which were agreed to be in controversy between the parties might overcome the pleading difficulties which have bedevilled the applicant or, at least, reduce the areas in which the perceived defects are said to infect the latest version of the statement of claim. Accordingly, on 4 March 2011 I ordered, amongst other things: 1. There be a hearing of the applicant's application for leave to rely on the further amended statement of claim filed herein on 20 December 2010. 2. The first respondent file and serve by 18 March 2011 a draft formulation of a question or questions pursuant to O 29 of the Rules of this Court for resolution separately from any other question in the proceedings. 3. Unless he agrees with the formulation of the question referred to in paragraph 2 of this Order, the applicant file and serve by 31 March 2011 a draft formulation of the question or questions which he proposes for resolution pursuant to O 29. 4. There be a directions hearing on 8 April 2011 to settle the question or questions referred to in paragraphs 2 and 3 of this Order. … 5 At the commencement of the directions hearing on 8 April 2011 I was supplied with a draft of the suggested questions proposed by the Commonwealth and supported by Mr Niall SC who appeared for the State of Victoria. That draft was in these terms: 1. Does the Revised Further Amended Statement of Claim filed herein on 5 April 2011 (FASC) (paragraphs 3 and 4) identify rights of the Applicant that are "property" within the meaning of s 51(xxxi) of the Constitution? 2. If yes to Question 1, in relation to the Applicant's property identified in the FASC and in the circumstances alleged therein, are any of the following a law of the Parliament with respect to "the acquisition of property" within the meaning of s 51(xxxi) or executive action which impairs the constitutional guarantee: 2.1. the National Parks (Marine National Parks and Marine Sanctuaries) Act 2002 (Vic) (the Marine Parks and Sanctuaries Act)? (paragraph 5 of the FASC) 2.2. the Fisheries Management Act 1991 (Cth) (the Management Act)? (paragraph 6 of the FASC) 2.3. the arrangement dated 29 October 1997, that commenced on 1 November 1997, under Part 5 of the Fisheries Management Act 1991 (Cth) between the Commonwealth and Victoria (the October 1997 arrangement)? (paragraph 6 of the FASC) or, 2.4. any combination of the Marine Parks and Sanctuaries Act, the Management Act and the October 1997 arrangement? 3. If yes to any of Questions 2.1, 2.2, 2.3 or 2.4, does s 167A(1) of the Management Act entitle the Applicant to compensation? 4. Does the FASC (paragraph 13) identify any inconsistency between the Marine Parks and Sanctuaries Act and the Seas and Submerged Lands Act 1973 (Cth) for the purposes s 109 of the Constitution? 5. If "yes" to Question 4, what provision or provisions of the Marine Parks and Sanctuaries Act is or are invalid for that reason? 6. Is the conduct alleged against the Commonwealth in paragraph 18 of the FASC conduct of the Commonwealth "in trade or commerce" within the meaning of the Fair Trading Act 1999 (Vic) or the Trade Practices Act 1974 (Cth) (as taken to be continued in force by item 6(1) of Schedule 7 to the Trade Practices (Australian Consumer Law) Amendment Act (No 2) 2010)? 7. Did the Marine Parks and Sanctuaries Act: 7.1. alter the limits of the State of Victoria; or 7.2. make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to Victoria, so as to come within s 123 of the Constitution? 8. Do paragraphs 8 and 20 of the FASC fail to disclose a cause of action against the Respondents for the reason or reasons that: 8.1. for the purposes of Order 11 rule 1B and Form 15B of the Federal Court Rules, there is no proper basis, in the factual and legal material available to the Applicant or his solicitors, for the allegations in paragraph 8 of the FASC? 8.2. neither the Marine Parks and Sanctuaries Act nor the conduct alleged in paragraph 26 of the FASC is capable of constituting "unlawful means" for the purposes of sustaining the allegation in paragraph 20 of the FASC of conspiracy by unlawful means? 6 Mr Peter King of Counsel for the applicant indicated general agreement with the Commonwealth's draft but pressed for the insertion of an additional Question 3A in these terms: If no to any of Questions 2.1, 2.2, 2.3 or 2.4, is s 167A(1) of the Management Act invalid? 7 Although Mr King undertook at the end of the hearing on 8 April 2011 to give further thought to a reformulation of the proposed Question 3A, the Court was subsequently advised by letter, also dated 8 April, from the applicant's solicitors that they withdrew the proposed Question 3A. 8 Mr Niall SC for the State of Victoria suggested the insertion of a further question after question 7 in the draft formulation set out at [5] above. That was: Is the Fisheries Act 1995 (Vic) repugnant to the Constitution to the extent that it extended past the low water mark into the Central Zone in Bass Strait and/or impaired or interfered with the applicant's property rights (paragraph 35 of the FASC)? 9 There was no objection by Counsel for either the applicant or the Commonwealth to the insertion of that question or the terms in which it has been formulated. Accordingly, I propose to insert it as Question 8 in the list of questions which I shall order should be heard and determined separately from, and in addition to, any other question in these proceedings. 10 However, I do not propose to include in the list of questions a question in the form of Question 8 in the draft set out at [5] above. In my view, that question identifies part of the dispute, previously agitated, as to whether one or other version of the applicant's statement of claim discloses a cause of action or contains allegations which should be struck out as embarrassing. Accordingly, I consider the resolution of that dispute should be deferred in the hope that answers to Questions 1 to 8 which I propose to order will clarify, and perhaps reduce, the matters in issue between the parties. Consistently with that view, I shall order that the applicant's application for leave further to amend his statement of claim be adjourned to a date to be fixed by the docket Judge, being a date after the hearing and determination of the eight questions which I propose to order. 11 I note that the Commonwealth proposes to give a supplementary Notice of a Constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Cth). I have been furnished with a draft of the proposed notice and regard its terms as appropriate subject to a revision to take account of the draft Revised Further Amended Statement of Claim and the terms of the Order which accompanies these reasons. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.