Federal Court of Australia

Palmer v State of Western Australia (No 3) [2020] FCA 1220

ORDERS

THE COURT ORDERS THAT:

1.    The Attorney-General of the Commonwealth of Australia pay the parties’ costs of and incidental to the hearing of 7 August 2020.

2.    The applicants notify the Court and the respondents as to whether they apply for any order for costs against the respondents in respect of the hearing of 7 August 2020 by 4.30 pm on 26 August 2020.

3.    If the applicants apply for a costs order against the respondents, they are to file and serve written submissions (not exceeding five pages) and any supporting affidavits by 4.30 pm on 28 August 2020.

4.    The respondents are to file and serve any written submissions (not exceeding five pages) and affidavits in response by 4.30 pm on 1 September 2020.

5.    The applicants are to file and serve any written submissions (not exceeding two pages) and affidavits in reply by 4.30 pm on 3 September 2020.

6.    Any application for costs against the respondents will be decided on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J

1    The Attorney-General of the Commonwealth of Australia (the Commonwealth) intervened in proceedings commenced by the applicants in the High Court of Australia. The High Court remitted a part of those proceedings to the Federal Court of Australia for hearing and determination.

2    The Commonwealth subsequently notified the High Court and the Federal Court that it withdrew its intervention.

3    These reasons deal with an argument raised by the respondents that the Commonwealth requires leave to withdraw from the part of the proceeding that is before this Court, and that leave should only be granted on particular terms.

4    I will proceed by describing the procedural history and the parties’ submissions, before considering those submissions.

Procedural history

5    On 25 May 2020, the applicants commenced proceedings in the High Court of Australia seeking a declaration that the Quarantine (Closing the Border) Directions (WA) (the Directions) and/or the Emergency Management Act 2005 (WA) are invalid in whole or in part on the basis that they contravene s 92 of the Constitution.

6    On 12 June 2020, the Commonwealth intervened in the proceedings before the High Court, exercising the right to do so conferred under s 78A of the Judiciary Act 1903 (Cth). The Notice of Intervention stated that the Commonwealth intervened in support of the position of the applicants.

7    On 16 June 2020, the Chief Justice of the High Court made an order pursuant to s 44 of the Judiciary Act remitting a part of the matter to the Federal Court of Australia for hearing and determination.

8    I conducted a hearing of the remitted issue from 27 to 31 July 2020. The applicants, the respondents and two interveners, the Commonwealth and the Attorney-General for Queensland (Queensland), participated in the hearing. The Commonwealth made opening and closing submissions, called two expert witnesses and cross-examined the others. The Commonwealth supported the applicants’ case, but also contended for findings of fact that were, in some respects, different to those contended for by the applicants. At the conclusion of the hearing, I reserved my decision.

9    The next day, on 1 August 2020, the Prime Minister of Australia wrote to the Premier of Western Australia saying, “I consider, on balance, that we must set aside the normal convention in these circumstances and not continue the Commonwealth’s participation in this case”.

10    On 2 August 2020, the solicitors acting for the Commonwealth wrote to the High Court stating that, “the Attorney-General will not be continuing with the intervention in this proceeding and will not seek to be heard when the matter comes before the Court”.

11    On 5 August 2020, the solicitors for the Commonwealth informed this Court that the High Court had been notified that the Commonwealth would not be continuing its intervention, and that this extended to the remitted part of the proceeding.

12    At the request of the respondents, I listed the matter for a case management hearing on 7 August 2020.

The submissions

13    At the case management hearing, the respondents submitted that:

(1)    the Commonwealth remains a party to the part of the proceeding remitted to this Court, and requires leave to withdraw;

(2)    the respondents would be prejudiced if the Commonwealth “simply withdraws”, so the following terms should be placed upon the grant of leave to withdraw:

(a)    there should be a new hearing of evidence and the Commonwealth should pay the costs thrown away;

(b)    alternatively, the Commonwealth should withdraw all of the claims for findings of ultimate fact it sought and all submissions adverse to the current border restrictions contained in the Directions.

14    The respondents accept that there is no provision of the Federal Court Rules 2011 (Cth) which expressly requires an intervener to seek leave to withdraw from a proceeding. However, they submit that the Commonwealth is required to obtain leave to discontinue the proceeding under r 26.12 the Federal Court Rules or under the common law.

15    Rule 26.12 of the Federal Court Rules provides, relevantly:

26.12    Discontinuance

(1)    A party claiming relief may discontinue a proceeding in whole or in part by filing a notice of discontinuance, in accordance with Form 48.

 (2)     The party may file the notice of discontinuance:

(a)     without the leave of the Court or the other party’s consent:

(i)     at any time before the return date fixed in the originating application; or

(ii)     if the proceeding is continuing on pleadings—at any time before the pleadings have closed; or

(b)    with the opposing party’s consent—before judgment has been entered in the proceeding; or

(c)     with the leave of the Court—at any time.

…

16    The respondents submit that the Commonwealth falls within r 26.12(1) as the Commonwealth is a “party” and has “effectively claimed relief”. They submit that the Commonwealth has, “independently sought factual findings to provide the basis for a declaration in the High Court that the Directions are invalid”. Further, they submit that by seeking some factual findings that no other party has sought, the Commonwealth has “claimed that relief”.

17    The respondents submit that even if r 26.12 of the Federal Court Rules does not apply to an intervener, the position at common law is that a party seeking relief requires leave to withdraw their claim for relief, citing B & J Engineering Pty Ltd v Daroczy (1984) 4 FCR 524 at 527, Allan v Hocking (2006) 15 Tas R 234 at [12]–[17] and Fox v Star Newspaper Co Ltd [1898] 1 QB 636 at 639.

18    The respondents submit that if the Commonwealth can “simply withdraw”, the Court is left with the evidence the Commonwealth has tendered, and that will cause prejudice to the respondents by conferring a substantial forensic advantage on the applicants that they would not otherwise have had. The respondents submit that the Commonwealth should only be granted leave to withdraw on terms which reflect a complete withdrawal from the field and no longer involves any explicit or implicit challenge to the Directions. The respondents submit that at the very least, this would require the Commonwealth to expressly state that it does not seek the findings of ultimate fact contained in its closing submissions and does not maintain any criticism of the witnesses of the respondents.

19    The respondents argue that the difficulty remains that the evidence of the witnesses called by the Commonwealth is available to be considered by the Court. They submit that such evidence cannot be disaggregated from other evidence because it was part of the joint expert report tendered to the Court and because the witnesses gave evidence concurrently. They contend that the only way the difficulties caused by the Commonwealth’s participation can be properly rectified is for there to be a new hearing of the evidence. They submit that there will otherwise be a substantial risk of a miscarriage of justice by reason that the hearing has been conducted on the basis of evidence which the party adducing that evidence no longer supports.

20    The Commonwealth submits that it has withdrawn from the entirety of the matter by so notifying the High Court, and that means that it is no longer a party to the part of the proceeding remitted to the Federal Court. The Commonwealth observes that under r 1.05 of the High Court Rules 2004 (Cth), the Federal Court Rules apply only to “steps taken in” the Federal Court. The Commonwealth submits that the discontinuance of its intervention is not a step taken in the Federal Court, but in the High Court.

21    The Commonwealth also argues that r 26.12 of the Federal Court Rules has no application because it is not a party “claiming relief”. It submits that the common law principles have no application for at least the same reason.

22    The applicants support the Commonwealth’s submission that it does not require leave to withdraw. They also submit that there is no prejudice to the respondents by reason of the withdrawal. They submit that the same witnesses could have been called by the applicants if the Commonwealth had not called them, and that the respondents had a full opportunity to cross-examine the witnesses called by the Commonwealth and to make submissions. The applicants expressly adopt the closing submissions made by the Commonwealth at the hearing, and state that they would invite or require the Commonwealth’s witnesses to give evidence on the applicants’ behalf if the evidence were reopened. The applicants submit that, therefore, there would be no utility in ordering a further hearing.

23    Queensland submits that the disadvantage to the respondents can be resolved by the Court excluding the evidence adduced by the Commonwealth on the basis that the Commonwealth has abandoned reliance on the evidence.

Consideration

24    The order made by the High Court remitting part of the matter to this Court was made pursuant to s 44 of the Judiciary Act. That section provides, relevantly:

44     Remittal of matters by High Court to other courts

(1)     Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court’s own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted.

    …

(2A)     Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court’s own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.

(3)     Where the High Court remits a matter, or any part of a matter, under subsection (2) or (2A) to a court:

(a)    that court has jurisdiction in the matter, or in that part of the matter, as the case may be; and

(b)     subject to any directions of the High Court, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as directed by that court.

…

25    In Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 151, Dowsett and Lander JJ held at [19] that in the absence of a direction to the contrary, the Federal Court Rules will apply to any matter remitted to the Federal Court pursuant to s 44 of the Judiciary Act. That is consistent with r 1.05 of the High Court Rules, which provides:

If a proceeding, or part of a proceeding, is remitted by the Court to another court, the rules of that other court govern all steps taken in that other court after the order for remitter is made.

26    There is no provision in the Federal Court Rules expressly requiring that an intervener must seek leave to withdraw its intervention. However, the respondents rely upon r 26.12, which provides in sub-rule (1) that a, “party claiming relief may discontinue a proceeding in whole or in part by filing a notice of discontinuance”. The Commonwealth became a “party” to the proceeding when it filed its notice of intervention: see Cheesman v Waters (1997) 77 FCR 221 at 227. The issue is whether the Commonwealth is a “party claiming relief” within r 26.12(1).

27    The respondents submit that by independently seeking the making of factual findings that would provide the basis for a declaration by the High Court that the Directions are invalid, the Commonwealth is seeking “relief”.

28    The expression “relief” is not defined in the Federal Court Rules. In Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317, Branson J at [183]–[184] considered a requirement that the party seeking leave must have a prima facie case “for the relief sought” in O 8, r 2(c) of the Federal Court Rules 1979 (Cth) (the equivalent provision is r 10.43(4)(c) of the current Federal Court Rules). Her Honour held that the phrase referred to, “the remedy sought by the applicant in the proceeding”. In so concluding, her Honour considered O 4 rr 3(1) and (2), which were in very similar terms to r 8.03(1) of the current Federal Court Rules.

29    Rule 8.03(1)(a) requires that an originating application must state, “the relief claimed”. That phrase, particularly when considered with r 8.03(2), must refer to the remedies, or orders, that are applied for. That phrase is used in a similar manner in r 15.07 in respect of cross-claims. The phrase “an application for relief” is also used in a similar manner in rr 18.02(1) and 18.03(2) in respect of interpleader proceedings. In my opinion, the expression “party claiming relief” in r 26.12(1) should be construed as referring to a party who has applied for a remedy in the proceeding.

30    The Notice of Intervention filed by the Commonwealth in the High Court stated that the intervention was, “in support of the position of the [applicants]”. The “position” of the applicants is that the Directions and/or the Emergency Management Act should be declared to be invalid. The Commonwealth called evidence and sought the making of particular findings of fact in this Court that would support the applicants’ claim for that declaration. However, the Commonwealth has not itself applied for, or claimed, a declaration or any other remedy. Accordingly, I do not accept that the Commonwealth is a “party claiming relief” within r 26.12 of the Federal Court Rules. That rule has no application to the withdrawal of the intervention.

31    The respondents have not explained why procedures for discontinuance under the common law prior to the passage of the Judicature Acts apply to a proceeding governed by the Federal Court Rules: cf Allan v Hocking at [15], [17], [19]. In any event, the authorities cited by the respondents dealt with discontinuance by parties which had initiated proceedings claiming relief. The Commonwealth is an intervener and, as I have found, has not claimed any relief.

32    The effect of r 1.05 of the High Court Rules is that the Federal Court Rules “govern all steps taken” in this Court following the order for remitter. However, the Commonwealth was not required under the Federal Court Rules to seek leave to discontinue or to otherwise withdraw as an intervener.

33    The respondents have not sought to argue that s 78A of the Judiciary Act ought to be construed such that leave is required to withdraw an intervention.

34    The Commonwealth notified the High Court of the withdrawal of its intervention in the proceeding before the High Court. To any extent that it may have been necessary to separately notify this Court of its withdrawal from the part of the proceeding that has been remitted, that has been done. There is no further step required to be taken in this Court to effect the withdrawal.

35    In case I am wrong in holding that leave to withdraw or discontinue is not required, I will consider the respondents’ submission that conditions ought to be placed on the grant of such leave. These conditions are expressed as alternatives in the respondents’ written submissions.

36    One of the conditions the respondents seek is that the Commonwealth should expressly state that it no longer seeks the findings of fact contained in its closing submissions and does not maintain any criticism of the evidence of the witnesses called by the respondents. The Commonwealth has effectively done that by stating that it, “does not press for any of the findings of fact that it sought at the trial, or for the acceptance of any of the submissions that it made at the trial”.

37    The alternative condition sought by the respondents is that there should be a new hearing of the evidence on the basis that the respondents are disadvantaged by the Commonwealth’s withdrawal. As the first condition has been satisfied, the alternative does not arise, even assuming that leave to withdraw or discontinue were required.

38    Even assuming that the respondents now seek the second condition in addition, and not merely as an alternative, to the first, I would not grant a new hearing. The respondents claim that they are disadvantaged by the withdrawal of the Commonwealth. But that is not so. At the time of the withdrawal, the hearing had been completed and the decision reserved. The Commonwealth had already conducted the hearing in a manner designed to support the applicants’ ultimate case that the Emergency Services Act and/or the Directions are invalid. If the Commonwealth had not withdrawn, the respondents would be in precisely the same position — they would still have the weight of the evidence called by the Commonwealth and its submissions against them. The Commonwealth’s withdrawal after the hearing had been completed was tokenistic and could make no practical difference to the outcome. The respondents have not been disadvantaged by the withdrawal because they had already been disadvantaged by the Commonwealth’s participation in the hearing.

39    The real complaint the respondents make is that the Commonwealth has caused them disadvantage by conducting the hearing in support of the applicants. It can be accepted that the respondents have been disadvantaged by the Commonwealth’s conduct in calling evidence and making submissions contrary to the respondents’ defence. The respondents grumbled during the hearing about the Commonwealth calling evidence, but did not object — presumably because of a forensic judgment that such an objection would not succeed. The evidence was given and the submissions made. That evidence and those submissions are now relied upon by the applicants. The respondents’ complaint about the withdrawal is, in reality, a complaint that they are disadvantaged by the decision the Commonwealth made to fight the battle on the side of the applicants before changing sides when it was all over. However unfair the respondents perceive the actions of the Commonwealth to be, they are done and cannot be undone. The unfairness was not caused by the Commonwealth’s decision to withdraw, but by the decision to intervene in support of the applicants’ case in the first place.

40    Even if it were a basis to grant a new hearing, there would be no point in doing so. The applicants have said that they adopt the submissions made by the Commonwealth. They have also indicated that they would call the expert witnesses already called by the Commonwealth in any new hearing. The respondents say that the Commonwealth might not release the experts from confidentiality obligations, but whether there are any material confidentiality obligations and whether they would be released are matters of speculation. The respondents also say that the expert witnesses might not be willing to give evidence on behalf of the applicants, but that is also a matter of speculation — as they were willing to give evidence when called by the Commonwealth, it is difficult to understand why they would be unwilling if called by the applicants. I cannot see that the evidence and submissions are likely to be materially different if a new hearing were granted. The respondents have already had a full opportunity to cross-examine and make submissions. A new hearing would merely waste the resources of the parties and the Court.

41    Finally, I reject the submission made by Queensland that the evidence can be disaggregated and the evidence given by the experts called by the Commonwealth ignored. Even if there were a basis for that course, it could not adequately be done in circumstances where the experts produced a joint report and gave evidence concurrently. Even if it could be done, it would be unfair to the applicants, whose conduct of the hearing is likely to have been quite different if the Commonwealth had not intervened in support of their case.

42    In summary, I reject the respondents’ submission that the Commonwealth requires leave to withdraw or discontinue its intervention. I would not, in any event, order a further hearing of the evidence. There does not appear to be a need to make any substantive order.

43    The Commonwealth did not make any submissions in opposition to the proposition that the hearing of 7 August 2020 had resulted from its belated withdrawal. I will order that the Commonwealth pay the parties’ costs of the hearing.

44    The applicants indicated that they may wish to apply for indemnity costs against the respondents. I will make orders to facilitate any such application.

Associate:    

Dated:    25 August 2020