Hopkins v Governor-General of Australia

Judgment 1THE COURT: On 13 August 2013 Garling J made orders in proceedings commenced by Mr Jason Andrew Hopkins (the applicant) in the Common Law Division of the Supreme Court: Hopkins v Governor-General of Australia [2013] NSWSC 1068. The orders were as follows: "(1) Order, pursuant to r 6.4 of the Uniform Civil Procedure Rules 2005, that the Attorney-General for Australia be added as a defendant. (2) Order, pursuant to s 6(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), that the proceedings herein be heard and determined by the Supreme Court of New South Wales. (3) Order, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005, that the proceedings be, and hereby are, dismissed. (4) Order the plaintiff to pay the costs of both of the defendants." 2The applicant sought leave to appeal against the dismissal of proceedings, which had been ordered on the basis that they were hopeless and that there was "no material to support the proposition that either the Director-General [of ASIO] or the Inspector-General [of Security] have been derelict in and about the performance of their duties in accordance with their enabling statute": at [50]. Leave was required because the decision was interlocutory. What follows are our reasons for ordering, immediately after the hearing on 22 October 2013, that leave be refused. 3The matter first came before two judges of the Court, on the basis that the application for leave should be dealt with separately and before the hearing of the appeal. The Court as then constituted raised an issue with the parties as to the jurisdictional basis upon which the primary judge had addressed the merits of the application before him. The Court was further concerned as to the jurisdictional basis upon which it could consider the application for leave to appeal. If this Court does not have jurisdiction with respect to the matter, arguably it would not have power to transfer the matter to the Federal Court and certainly would not have power to make an order that the matter remain in this Court: cf McCarthy v Commissioner of Taxation [2013] FCA 715 at [59] (Robertson J). It would of course have jurisdiction to determine whether its jurisdiction had been properly invoked, and, if not, it would have power to dismiss the proceeding for want of jurisdiction, and to make an order for costs: Khatri v Price [1999] FCA 1289; 95 FCR 287 at [15]-[19] (Katz J); State of New South Wales v Kable [2013] HCA 26; 87 ALJR 737 at [31]. 4Although, if the Court lacked jurisdiction, the ultimate result might be the same, it was thought appropriate for three judges to constitute the Court in order to deal with the jurisdictional issue, there being authority in the Full Court of the Federal Court inconsistent with the existence of such jurisdiction: Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511. If that authority were not to be followed, it would be inappropriate for two judges to take that view without proper argument and on a leave application. For the reasons set out below, the authority should not be followed and this Court has jurisdiction, although the application for leave to appeal was dismissed on the basis that no reasonably arguable case of error had been established. Applicable legislative provisions 5Before the trial judge, Mr Markus, appearing for the Attorney-General, submitted that the State Supreme Court had jurisdiction pursuant to s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ("the Cross-Vesting Act"). Section 4(1) relevantly provides: 4 Additional jurisdiction of certain courts (1) Where: (a) the Federal Court ... has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and (b) the Supreme Court of a State ... would not, apart from this section, have jurisdiction with respect to that matter; then: (c) in the case of the Supreme Court of a State ... - that court is invested with federal jurisdiction with respect to that matter.... 6The powers available to the Court in the event that jurisdiction is invested by s 4(1) are limited in some circumstances. Thus, s 6, dealing with "special federal matters", provides: 6 Special federal matters: general rules (1) If: (a) a matter for determination in a proceeding that is pending in the Supreme Court of a State ... is a special federal matter; and (b) the court does not make an order under subsection (3) in respect of the matter; the court must transfer the proceeding in accordance with this section to the Federal Court .... ... (3) The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties. (4) Before making an order under subsection (3), the court must be satisfied that: (a) a written notice specifying the nature of the special federal matter has been given to the Attorney-General of the Commonwealth and the Attorney-General of the State ... where the proceeding is pending.... ... (6) In considering whether there are special reasons for the purposes of subsection (3), the court must: (a) have regard to the general rule that special federal matters should be heard by the Federal Court ...; and (b) take into account any submission made in relation to the proceeding by an Attorney-General mentioned in subsection (4). ... (10) This section does not apply to an appeal that is instituted in the Full Court of the Supreme Court of a State ... if the court whose decision is the subject of the appeal had made an order under subsection (3) ... in relation to the special federal matter. 7The term "special federal matter" is defined in s 3(1) in the following terms: 3 Interpretation and application (1) In this Act, unless the contrary intention appears: ... "special federal matter" means: ... (c) a matter arising under the Administrative Decisions (Judicial Review) Act 1977; or (e) a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903; being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction. Were the preconditions of s 4 of the Cross-Vesting Act satisfied? 8The primary judge, having heard submissions from the Attorney-General of the Commonwealth, made an order under s 6(3) that the proceeding be determined in the Supreme Court. That order, however, depended upon the jurisdiction of the Supreme Court having been properly invoked. 9The first step arising from these provisions is to ask whether s 4(1)(a) and (b) are satisfied, namely, whether the Federal Court has, and the State Supreme Court would not (apart from s 4 of the Cross-Vesting Act) have, jurisdiction with respect to the civil matter. If either (a) or (b) is not satisfied, then the Cross-Vesting Act will not invest any jurisdiction. If both (a) and (b) are satisfied, then further questions will arise. 10Pursuant to s 39(2) of the Judiciary Act 1903 (Cth) the Supreme Court is invested with federal jurisdiction "in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in s 38 ...". Part of the original jurisdiction of the High Court extends to matters "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth": Constitution, s 75(v). However, s 38 of the Judiciary Act makes the jurisdiction of the High Court with respect to "matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth" to be within the exclusive jurisdiction of the High Court, to the exclusion of the State Supreme Court: Judiciary Act, s 38. (The lack of reference to injunctive relief is not presently relevant.) Accordingly, s 39(2) does not confer such jurisdiction on the State Supreme Court. 11An exception to the exclusive jurisdiction of the High Court under s 75(v) of the Constitution is provided by s 39B of the Judiciary Act, which confers on the Federal Court jurisdiction "with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth": s 39B(1). Section 38 of the Judiciary Act is subject to s 39B. It follows that s 4(1)(a) of the Cross-Vesting Act is satisfied. However, neither s 39B nor any other federal law (save for the Cross-Vesting Act) invests jurisdiction in respect of the civil matters on a State Supreme Court, so that s 4(1)(b) of the Cross-Vesting Act is also satisfied. Conflict between Cross-Vesting Act, s 4 and ADJR Act, s 9 12However, it does not follow from the fact that the preconditions to s 4(1) have been satisfied that this Court has been invested with federal jurisdiction. To the extent that another federal law enacted pursuant to s 77(ii) of the Constitution makes the jurisdiction of the Federal Court exclusive, then it will be necessary to resolve the conflict between the investment of jurisdiction by s 4(1) and the exclusion of jurisdiction by that other law. Accordingly, it is necessary to refer to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). That Act provides for judicial review of decisions under certain Commonwealth enactments. To that end, it confers jurisdiction on the Federal Court and the Federal Circuit Court: s 5(1). No jurisdiction is invested in the State Supreme Court under this legislation, but what matters for present purposes is s 9, which imposes a broadly worded limitation of jurisdiction of State courts: 9 Limitation of jurisdiction of State courts (1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review: (a) a decision to which this section applies that is made after the commencement of this Act; (b) conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies; (c) a failure to make a decision to which this section applies; or (d) any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power. Note: This subsection has effect subject to the Jurisdiction of Courts (Cross-Vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001. (2) In this section: decision to which this section applies means: (a) a decision that is a decision to which this Act applies; or (b) a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1. review means review by way of: (a) the grant of an injunction; (b) the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or (c) the making of a declaratory order. (4) This section does not affect: (b) the jurisdiction conferred on the Supreme Court of a State by section 32A of the Federal Court of Australia Act 1976; or (c) the jurisdiction of a court of a State in respect of any matter that is pending before it at the commencement of this Act. 13There are three matters of significance deriving from this provision. First, there is its scope. The nature of the relief sought by the applicant in this case is covered by the term "review" as defined in s 9(2). Further, the person against whom the primary relief is sought, namely the Governor-General, is defined to be an officer of the Commonwealth within s 75(v) of the Constitution and hence for the purposes of the ADJR Act: see s 3(1). The prima facie scope of s 9 is therefore potentially broad enough to prevent any Commonwealth Act conferring the specified jurisdiction on a court of a State. 14Secondly, neither of the exceptions in s 9(4) to the exclusivity of the jurisdiction delineated by s 9 applies. The second is historical, and the first is confined to jurisdiction to hear and determine applications which may be made to the court sitting in Chambers where a proceeding is pending in the Federal Court. 15Thirdly, there is the effect of the note to sub-s 9(1). The note was introduced by the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) which commenced on 2 July 2000. That Act made a number of changes to the ADJR Act, pursuant to s 3 and Schedule 1. In particular, in addition to introducing the note (Sch 1, item 18), item 4 inserted a new definition in s 3(1) of the terminology "decision to which this Act applies", in the following terms: decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition): (a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or (b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment; other than: (c) a decision by the Governor-General; or (d) a decision included in any of the classes of decisions set out in Schedule 1. Note: Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act. 16In 2000, when the note was added to s 9(1) of the ADJR Act, the Acts Interpretation Act 1901 (Cth) relevantly provided: 13 Headings, schedules, marginal notes, footnotes and endnotes (1) The headings of the Parts, Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act. (2) Every schedule to an Act shall be deemed to form part thereof. (3) No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act. 17That section was repealed from 27 December 2011. The "parts" of an Act are now defined as all material, "from and including the first section of an Act to the end of ... the last Schedule to the Act" and certain materials appearing before the beginning of the first section. 18If the effect of the note is to render s 9(1) subject to the operation of the Cross-Vesting Act, then, despite the preclusion of any power in a State court to grant relief in the nature of mandamus against the Governor-General, there may in fact now be jurisdiction conferred on the State Supreme Court to grant such relief. 19So far as the operation of s 9 of the ADJR Act is concerned, in its interrelationship with s 4 of the Cross-Vesting Act, the Full Court of the Federal Court in Re Wilcox; Ex parte Venture Industries (Black CJ, Cooper and Merkel JJ) held at 525: "In our view the legislative history of s 4 demonstrates a clear legislative intention that if the exclusivity of jurisdiction of the Federal Court provided for in other legislation was not to be disturbed by the [Cross-Vesting Act], then that was to be achieved by the exclusion of such matters from s 4(1) by means of those matters being stated as excluded under s 4(4). However, there is one aspect of the [Cross-Vesting Act] that requires special consideration. Matters arising under the [ADJR Act] are not excluded from s 4(4) and are special federal matters under ss 3(1) and (6). Accordingly jurisdiction in such matters may be invested in Supreme Court under Commonwealth legislation or s 4(1). However, s 9 of the ADJR Act provides that, notwithstanding anything contained in any Act other than the ADJR Act, a court of a State does not have jurisdiction to 'review' (as defined in the section) the matters there referred to. Although the matter was not argued before us, we would expect that the [Cross-Vesting Act] would not affect the express restriction on the power of State courts to 'review' under the ADJR Act. Those restrictions were to apply 'notwithstanding anything contained in any Act'. Consequently the jurisdiction of State courts in matters arising under the ADJR Act is likely to be subject to the express restrictions on the power of State courts set out in s 9." 20Two aspects of that statement should be noted. First, it was not essential to the reasoning in that case, which was concerned with an order made by Wilcox J transferring a proceeding under the Trade Practices Act 1974 (Cth), the Federal Court having exclusive jurisdiction, to the Supreme Court. That matter did not give rise to any question as to the operation of s 9 of the ADJR Act, except to the extent that it was necessary for a proper understanding of the scheme of the Cross-Vesting Act. Furthermore, the views were expressed to be tentative. 21Secondly, this statement was made several years prior to the enactment of the "Note" to s 9(1) and therefore did not consider the potential effect of the note. However, if the reasoning of the Full Court is correct and is not affected by the later note, the inevitable conclusion is that this Court will not have jurisdiction to make orders against the Governor-General, and must dismiss the proceeding for want of jurisdiction. 22If the Cross-Vesting Act did not, prior to the enactment of the note, alter the effect of s 9(1) of the ADJR Act, it might be thought that the note was inapt to achieve that result. The note does not purport in terms to amend the opening words of s 9(1) ('[n]otwithstanding anything contained in any Act other than this Act"), but rather states a proposition as to the effect of the law as it actually operated prior to the insertion of the note. Accordingly, the first step in the analysis must be to compare the operation of s 9 of the ADJR Act and s 4 of the Cross-Vesting Act, as at the commencement of the Cross-Vesting Act, on 1 July 1988. 23At that stage, it may broadly be stated that there were two schemes for review of administrative decisions made by Commonwealth officers. The first was the original jurisdiction vested in the High Court by s 75(v) of the Constitution; the second was the statutory scheme for judicial review under the ADJR Act. The conferral of the constitutional jurisdiction on the Federal Court took effect with the commencement of s 39B on 20 December 1983. It was therefore in force when the Cross-Vesting Act commenced. Thus, the definitions in paragraphs (c) and (e) of "special federal matter" in s 3(1) of the Cross-Vesting Act covered the whole of the jurisdiction arising under the ADJR Act and under s 39B of the Judiciary Act, being, up till then, jurisdiction conferred on the Federal Court to the exclusion of State courts, the exclusion being effected, at least in part, by s 9(1) of the ADJR Act. 24It follows that s 9(1) of the ADJR Act and s 4 of the Cross-Vesting Act, in so far as the latter conferred jurisdiction with respect to special federal matters on a State Supreme Court, were directly in conflict. If they bear their ordinary meaning, it is not possible to reconcile the exclusion of jurisdiction from State Supreme Courts effected by the former, pursuant to s 77(ii), with the investment of the same courts with the same jurisdiction by the latter, pursuant to s 77(iii). This is a case where "actual contrariety is clearly apparent": Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 275. The Cross-Vesting Act impliedly repealed s 9 of the ADJR Act to the extent necessary to invest jurisdiction in State Supreme Courts, despite the emphatic language "notwithstanding anything contained in any Act other than this Act" in the ADJR Act (it being of course not possible to exclude the possibility of implied repeal). It is sufficient to observe that the Cross-Vesting Act is the later enactment; however the conclusion that it prevails is further supported by the considerations that (a) laws conferring jurisdiction are to be construed broadly and laws denying jurisdiction are to be construed narrowly: McCarthy v Commissioner of Taxation [2013] FCA 715 at [65] and (b) that the underlying purpose of the Cross-Vesting Act is to remove the former jurisdictional limitations on State Supreme Courts, save where expressly excluded by s 4(4). 25Thus, even prior to the enactment of the "Note" to s 9(1), the reasoning of the Full Court of the Federal Court was not compelling. It should not be followed. It is not necessary to consider the effect of the note, other than to accept that it correctly reflected the position in point of law prior to its enactment. 26It should also be remarked that the conclusion reached by this Court in ML v Australian Securities and Investments Commission [2013] NSWCA 109 should be understood on the basis that no reliance was placed on the Cross-Vesting Act. (Reference was made in that case to the application of the note with respect to s 1337B(3) of the Corporations Act 2001 (Cth), but it was not determinative of the case.) A "special federal matter" 27In these circumstances, this Court has jurisdiction to deal with the proceedings brought by Mr Hopkins, including his application for leave to appeal. It also follows that the proceeding before the primary judge and the application for leave each answer the description of a "special federal matter" for the purposes of s 3(1) of the Cross-Vesting Act (for the State Supreme Court does not have jurisdiction aside from the Cross-Vesting Act, and the Federal Court does have jurisdiction under the ADJR Act and pursuant to s 39B): see Deputy Commissioner of Taxation v Worn (1993) 25 ATR 152 (Hayne J). It follows that the primary judge was required to be satisfied that there are special reasons for determining the matter itself, rather than transferring the proceeding to the Federal Court. (The obligation to be satisfied does not arise in respect of the application for leave to appeal: see s 6(10).) The primary judge accepted the submission made by the Attorney-General that "baseless allegations against the Governor-General should be disposed of promptly, and ought not be allowed to remain on the public record without a judgment being delivered as soon as practicable". We agree, and have applied the same principle to the application for leave to appeal. 28However, s 6(4) of the Cross-Vesting Act required the Court first to be satisfied that the Commonwealth and New South Wales Attorneys General had been notified (again, that obligation is not imposed in respect of this leave application: s 6(10)). The Commonwealth Attorney-General has intervened and positively submitted that the proceeding be dismissed by the Supreme Court; however, it is not clear that the New South Wales Attorney General was notified as the section requires. If so, it would seem that, inadvertently, s 6(4) was not complied with, perhaps because both parties agreed that it was appropriate for the Supreme Court to deal with the matter. However, the agreement of the parties as to the Court's jurisdiction does not detract from the obligation under s 6(4). 29Any non-compliance with s 6(4) and s 6(6)(b) does not mean that the orders made by the primary judge are void; the judicial orders of a superior court are valid until set aside: State of New South Wales v Kable at [32] and [56]-[61]. It seems highly likely, for the reasons which follow when dealing with the merits of the application for leave, that the New South Wales Attorney General would not wish, and would not have wished, to make any submissions had he been notified under s 6(4). In the circumstances, the appropriate and efficient course is to direct the Commonwealth Attorney to notify the New South Wales Attorney General, if not already notified, of the decisions at first instance and on the application for leave to appeal, and grant liberty to the State Attorney General to apply to be heard, if he so wishes, as to the issue in s 6(3). If as seems highly likely, he does not wish to be heard, then nothing further need be done. Merits of appeal 30It is settled law that leave to appeal will only be granted if the decision is attended with sufficient doubt to warrant its reconsideration on appeal: see for example Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. The primary judge was conscious of, and expressly applied, the familiar principles relating to summary dismissal. His Honour formed the view that the claim was so obviously untenable that it could not succeed. That view was correct. 31The underlying claim made by the applicant asserted an obligation upon the Governor-General to remove and replace the Director-General of Security, and to request all federal parliamentarians to review the Australian Security Intelligence Organisation Act 1979 (Cth). The applicant also sought the provision of information in employment contracts, which he says amount to evidence of crime. The difficulties are self-evident, numerous and insuperable: there is no identification of the source of the legal obligation upon the Governor-General; even if there were, there is no credible basis for any such obligation being engaged, and there is no reason to think that the applicant would have standing to seek such relief. There is plainly no basis for the applicant to apply for, or for this Court to order, all federal parliamentarians to review legislation, or to require the production of documents said to evidence crime. 32In his submissions and proposed grounds of appeal, the applicant submitted that there had been a breach of natural justice by the Attorney making submissions which had not been served on him. There was no evidence of that, and we accept the submission of Mr Markus that no written submissions were made by the Attorney before the primary judge: the only submissions were oral and made in the presence of the applicant. The balance of the proposed grounds (there were 23, some with multiple subparagraphs) and submissions either reiterate the foregoing, or are unintelligible in a legal context. Their nature may be illustrated by two examples. First, "Possible contempt issues" were identified as follows: "Non-parties to proceeding may be charged with contempt of court. The charge statements haven't been finalised yet. Requesting referral to director of public prosecutions for advice on preparation of documents." 33Secondly, the last proposed ground read: "The injunction in summons originating the process for case 2013/214898 is short run to break a deadlock on a current danger that would normally be considered for a state of emergency declaration, if not for the novel problems. The failure of a law organization or institution on this scale may be a first in New South Wales and Australian history. No one born in New South Wales or Australia that has lived here most of there live has any experience of an institution failing, to my knowledge to the situation is novel. Institution is defined by expert opinion." 34The applicant also served affidavits from three people to prove that they had not been interviewed by or prepared a statement for the Inspector-General of Intelligence and Security. They do not alter the underlying absence of legal merit. 35In short, the applicant seems to believe that there are important failings which he needs to bring to the attention of the Governor-General. Although we proceed on the basis that his beliefs are sincerely held, nothing in the material suggests there is any legal merit to any of them. There are no prospects of demonstrating appellable error by the primary judge in summarily dismissing the claim. For those reasons, we refused leave to appeal when the matter was heard. There was no reason to displace the ordinary rule that costs follow the event.

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