Solicitor for the Attorney-General for the Commonwealth: Australian Government Solicitor

Solicitor for the Attorney-General for New South Wales: H.K. Roberts,

GIBBS C.J., MASON, WILSON, BRENNAN, DEANE and DAWSON JJ. The present applicant, Mr Metwally, in 1981 and 1982 lodged with the Counsellor of Equal Opportunity appointed under the Anti-Discrimination Act 1977 (N.S.W.), as amended ("the Anti-Discrimination Act") complaints that the University of Wollongong had discriminated against him, first on the ground of race and later because he had lodged the first complaint. On 23 November 1983 the Tribunal established under the Anti-Discrimination Act made an order in his favour. The University appealed against that decision to the Court of Appeal of the Supreme Court of New South Wales on a large number of grounds one of which, ground 36, was in the following terms:

](/cgi-bin/viewdoc/au/legis/cth/num_act/rdaa1983282/)Amendment Act 1983 (Cth) is invalid in so far as

effect the Tribunal had no power or jurisdiction to

Viskauskas v. Niland [1983] HCA 15; (1983) 57 ALJR 414; 47 ALR 32 this Court held that the provisions of Pt.II of the Anti-Discrimination Act were inconsistent with the provisions of the Racial Discrimination Act 1975 (Cth) ("the 1975 Act") and were, to that extent, invalid. The decision was given on 19 May 1983. Soon afterwards, on 19 June 1983, the 1975 Act was amended by the Racial Discrimination Amendment Act 1983 (Cth) ("the 1983 Act"). The operative provisions of that statute are set out in the judgment of this Court in University of Wollongong v. Metwally [1984] HCA 74; (1983) 59 ALJR 48; 56 ALR 1 and need not be repeated here. It is enough to say that the purpose of the 1983 Act was to enable the State and the Commonwealth legislation to operate side by side.

2. The Court of Appeal ordered that the Attorneys-General of the Commonwealth and New South Wales be made respondents to the appeal in respect of ground 36. Thereafter, on the application of the Attorney-General for New South Wales, this Court ordered that there be removed into this Court that part of the cause which raised two questions which are recited in the order which is set out below. On 22 November 1984, after a hearing, this Court made an order answering the questions and otherwise disposing of the part of the cause removed into it. The order was as follows:

(i) Whether the enactment of the provisions of

section 3 of the Racial Discrimination

Amendment Act 1983 was beyond the power of the

Parliament of the Commonwealth in so far as

those provisions purport to have retrospective

operation or effect for reason that in

purporting to do so they deny the operation of

section 109 of the Constitution upon an

inconsistency which prior to their enactment

existed between the Racial Discrimination Act

1975 and the relevant provisions of the

Anti-Discrimination Act 1977.

(ii) Whether, in the event of an affirmative answer

to the question in (i) above, the provisions

of Part II of the Anti-Discrimination Act were

invalid prior to the enactment of the Racial

Discrimination Amendment Act 1983 by virtue of

their inconsistency with the Racial

Discrimination Act 1975 and the operation of

section 109 of the Constitution.

Answer: The provisions of Part II of the

Anti-Discrimination Act 1977

(N.S.W.) were invalid prior to the

enactment of the [Racial

](/cgi-bin/viewdoc/au/legis/cth/num_act/rdaa1983282/)Discrimination Amendment Act 1983

(Cth) by virtue of their

inconsistency with the [Racial

](/cgi-bin/viewdoc/au/legis/cth/consol_act/rda1975202/)Discrimination Act 1975 (Cth) and

the operation of s.109 of the

Constitution, and the enactment of

the Racial Discrimination Amendment

Act 1983 did not give those

provisions a valid operation prior

to the date of that enactment.

Declare that the Tribunal had no power or

jurisdiction to inquire into or make decisions or

orders in respect of either of the complaints

lodged by Mr Metwally against the University of

Wollongong."

3. On 10 December 1984 the proceedings in the Court of Appeal were listed for further mention. On 13 December 1984 Mr Metwally filed a notice of contention in the Court of Appeal. The notice contended that the decision of the Tribunal should be affirmed on the ground (additional to those relied on before the Tribunal) that the 1975 Act is not a valid law of the Commonwealth because it is not a valid law with respect to external affairs, nor with respect to any other relevant power of the Parliament. On 20 February 1985 counsel for Mr Metwally indicated to the Court of Appeal that his client intended to seek a variation of the order made by this Court on 22 November 1984. On 25 February 1985 the University of Wollongong took out that order.

4. Mr Metwally now makes two applications. The first is to vary the order made by this Court on 22 November 1984, by deleting the declaration that the Tribunal had no power or jurisdiction in the matter. The second is for an order removing into this Court that part of the cause pending in the Court of Appeal which raises the question whether the 1975 Act is a valid law of the Commonwealth with respect to external affairs or with respect to any other relevant power of the Commonwealth. It was made clear in argument that the second application was ancillary to the first. Unless the order of this Court is amended, it will not be open to Mr Metwally to raise, either in the Court of Appeal or in this Court, the question whether the 1975 Act is valid. It was further conceded in argument by Mr Bennett, who appeared before us for Mr Metwally, that the first application, even if granted, would not go far enough for his purposes. The declaration merely states compendiously the effect on the proceedings of the answer made to question (ii). That answer effectively terminated the proceedings adversely to Mr Metwally. If Mr Bennett were to succeed, it would be necessary to delete the answer to question (ii), or to amend it, so as to indicate that it is merely hypothetical and depends on an assumption, namely that the 1975 Act is valid, which remains open to challenge in these proceedings.

5. It may be assumed, without deciding, that the Court has power to vacate its order of 22 November 1984, notwithstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v. Codelfa Construction Pty. Ltd. [1982] HCA 51; (1982) 150 CLR 29, at p 38. The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard. Mr Metwally was represented - and competently represented - in the argument before this Court. It is important to examine exactly what was in issue in the case. Mr Metwally's claim was founded on the Anti-Discrimination Act. If that Act had no valid operation at the material times, his case was doomed to failure. It had been held in Viskauskas v. Niland that the Anti-Discrimination Act was inconsistent with the 1975 Act and therefore invalid. When Mr Metwally's case came before this Court he did not seek to re-open the decision in Viskauskas v. Niland. On the contrary, his argument accepted the correctness of that decision. Indeed, the written outline of his submissions commences with the sentence, "The Racial Discrimination Act 1975 (Cth), ('the Commonwealth Act') is a valid law enacted pursuant to the external affairs power, s.51(xxix) of the Constitution ...". He then proceeded to argue that the 1983 Act was also a valid law which removed the inconsistency between the Anti-Discrimination Act and the 1975 Act. During the course of argument questions arose as to whether the Anti-Discrimination Act was an Act that "furthered the objects of the Convention" within the meaning of s.6A(1), which was inserted into the 1975 Act by the 1983 Act, and whether the 1983 Act brought about the result that the 1975 Act operated unequally throughout the Commonwealth, with the consequence either that the 1983 Act was invalid or - although this seems less likely - that the entire Racial Discrimination Act was invalidated. The parties were given an opportunity to argue those questions but declined it. Counsel for Mr Metwally expressly said that he was not going to submit that we should determine the validity of the 1983 Act. Obviously the invalidity of the 1983 Act could not assist Mr Metwally unless it entailed the invalidity of the Racial Discrimination Act as a whole. The corner-stone of the argument presented from Mr Metwally was that the 1983 Act was valid.

6. There was no express oral argument as to the validity of the 1975 Act. However, the proposition that that Act was valid was legally indispensable to the conclusion reached by the Court in the proceedings between the parties. There can be inconsistency between a State law and a Commonwealth law only if the Commonwealth law is valid. To assert that there is an inconsistency is to assert the validity of the Commonwealth Act. There is nothing novel or abstruse about that statement. Mr Metwally's counsel accepted the proposition that the 1975 Act was valid as the starting point of his argument - expressly in his written submissions, if tacitly in the oral submissions.

7. It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. It is impossible to regard the Court's answer to question (ii) as intended to be subject to the correctness of the unexpressed assumption that the 1975 Act was valid and, in consequence, to give the answer a merely conditional effect. If it had been suggested that the answer to the question was intended to be only a provisional one the Court would not have dealt with the matter. It is quite irrelevant that Mr Metwally was permitted, under the rules of the Court of Appeal, to give the notice of contention which he gave. Those rules could not alter the rights of parties under an order made in this Court and were not intended to do so.

8. For these reasons the application to vary the order will be refused. No order will be made on the application for removal.

Application to vary the order of the Court of 22 November 1984 refused.