High Court of Australia - Registry - Case Summaries

Full Court Matters

(Other than Applications for

Special Leave to Appeal)

COMMENCING 4 SEPTEMBER 2001

RE McBAIN; EX PARTE THE AUSTRALIAN CATHOLIC BISHOPS CONFERENCE AND THE AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH (C22/2000)

RE McBAIN; EX PARTE THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA (AT THE RELATION OF THE AUSTRALIAN EPISCOPAL CONFERENCE OF THE ROMAN CATHOLIC CHURCH (C6/2001)

These proceedings arise out the decision of Justice Sundberg of the Federal Court of Australia wherein the second respondent, Dr McBain, sought a declaration that s8 of the Infertility Treatment Act 1995 (Vic) (�the ITA�) was invalid on the basis that it was inconsistent with s22 of the Sex Discrimination Act 1984 (Cth) (�the SDA�). Section 8 precluded in vitro fertilisation treatment to be provided to the fourth respondent in the Federal Court, who is not a party to this application, on the basis that she was single. Section 8(1) provides:

�A woman who undergoes a treatment procedure must �

(a) be married and living with her husband on a genuine domestic basis; or

(b) be living with a man in a de facto relationship.�

Section 22 of the SDA provides:

(1) It is unlawful for a person who, whether for payment of not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person�s sex, marital status, pregnancy or potential pregnancy:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b) in the terms or conditions on which the firstmentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

Justice Sundberg found that s8 of the ITA provides �that a woman�s marital status, namely her status as a married woman or one living in a de facto relationship, is an essential requirement for availability of a treatment procedure. Section 22 of the SDA makes it unlawful for a person to refuse to provide services to another on the ground of the latter�s marital status.� Accordingly, his Honour found that the sections were directly inconsistent and that the Victorian Act was therefore inoperable by reason of s109 of the Constitution.

The Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church, who were appointed as amici curiae in the Federal Court, brought an action within the original jurisdiction of the High Court pursuant to s75(v) of the Constitution. They were directed by Justice Callinan to proceed to the Full Court by way of notice of motion.

In the intervening period between the direction to proceed before the Full Court and the substantive hearing, leave to intervene has been granted to the following organisations: The Women�s Electoral Lobby (Vic) Inc, The Australian Family Association and the Human Rights and Equal Opportunity Commission.

On 10 August 2001, the Attorney-General of the Commonwealth issued a fiat (which grants standing to the recipient) to the Australian Episcopal Conference of the Roman Catholic Church. The fiat is limited to an application for relief on the basis that the SDA does not, as a matter of construction, apply to infertility treatment the subject of the ITA and is not inconsistent with the ITA for the purpose of s109 of the Constitution. On the basis of this fiat, the Australian Episcopal Conference of the Roman Catholic Church commenced separate proceedings, C6/2001.

In matter number C22/2000, the applicants seek writs of prohibition, mandamus and certiorari against Justice Sundberg and Dr McBain. The applicants seek declarations that:

� section 8 of the ITA is not inconsistent with s22 of the SDA;

� all sections of the ITA set out in the schedule to the reasons for judgment of Justice Sundberg are not inconsistent, pursuant to s109 of the Constitution, with s22 of the SDA;

� to the extent that s22(1) of the SDA would apply to the treatment procedure referred to in s8 of the ITA, s22(1) is not a valid law of the Commonwealth;

� section 32 of the SDA applies to services provided pursuant to the ITA;

� section 32 of the SDA applies to services provided pursuant to the ITA in circumstances where the treatment procedure involves the removal of an ovum (or ova) from a single woman, the fertilisation of the ovum (or ova) with donor sperm in vitro, and the transfer of the embryo into the single woman;

� section 7B of the SDA otherwise applies to s8, and all other sections, of the ITA set out in the schedule to the reasons for judgment of Justice Sundberg;

� infertility is not a ground of discrimination under the SDA;

� infertility is not a ground of discrimination under the Convention on the Elimination of All Forms of Discrimination Against Women 1979;

� the Constitution provides no head of power for the Commonwealth regulation of in vitro fertilisation procedures and s22 of the SDA cannot be used to regulate the provision of such procedures;

� the Guiding Principles in s5 of the TA are paramount in the interpretation of that Act and s8 of the ITA must be read subject to those Principles;

� the domestic law of Australia, and international law, provides that the best interests of the child shall be paramount and both the ITA and SDA must be read subject to this principle of law;

� the domestic law of Australia, and international law, provides that the family, not a single person, is the fundamental group of society and the ITA and SDEA must be interpreted subject to this principle of law; and

� the domestic law of Australia, and international law, provides that a child has the right to be born into a family and to be raised by its mother and father, and to know it parents and the ITA and SDA must be interpreted subject to this principle of law.

In matter C6/2001, the applicants seek writs of prohibition, mandamus and certiorari against Justice Sundberg and Dr McBain for the following declarations:

� section 8 of the ITA is not inconsistent with s22 of the SDA;

� all sections of the ITA set out in the schedule to the reasons for judgment of Justice Sundberg are not inconsistent, pursuant to s109 of the Constitution, with s22 of the SDA;

� section 32 of the SDA applies to services provided pursuant to the ITA; and

ROYAL BOTANIC GARDENS AND DOMAIN TRUST v. SOUTH SYDNEY CITY COUNCIL (S263/2000)

Court appealed from: New South Wales Court of Appeal

Date of judgment: 22 December 1999 and 31 August 2000

Date of grant of special leave: 13 October 2000

The central issue in this appeal is the construction and interpretation of clause 4(b) of a lease dated 15 May 1976 between the Trustees of the Domain (�the lessor�) and the Sydney City Council (�the lessee�). The present appellant and respondent are the respective successors in title to the original parties to the lease.

Clause 4(b) of the lease confers a power on the lessor every three years to determine the yearly rent to be payable by the lessee during the following three year period. That grant of power is followed by a number of provisos. The parties are in dispute about the rent payable.

In 1955 the lessee proposed the construction of a car parking station in the Sydney Domain. There followed negotiations involving the lessee, the Department of Agriculture and the lessor. In these negotiations it was contemplated that there would be a fifty year lease, with rent payable by the lessee at 1000 pounds per annum, subject to periodic review. The car parking station and footway were constructed and opened on 8 April 1958 and the lessee commenced paying rent at ,1,000 per annum from 1 May 1958.

In 1957 it was decided that special legislation was needed in order to grant the lease. The necessary statutory power to enter the lease was conferred on the lessor by the Domain Leasing Act 1961 (NSW) (�the Act�). Section 3 of the Act empowered the lessor to lease the carpark to the lessee with the consent of the Minister for Lands �for such terms or period, at such rental and subject to such covenants and conditions as the trustees, with the approval of the Minister for Lands may determine�. Section 4 of the Act validated any lease which had already been granted. The rent was increased steadily until 1976 when it reached $4500 per annum and on each occasion the rent was explained as related to increased costs.

The formal lease executed in May 1976 included clause 4(b)(iv) which provided that in making a determination of rent the lessor �may have regard to additional costs and expenses which they may incur in regard to the surface of the Domain above or in the vicinity of the parking station and the footway and which arise out of the construction and maintenance of the parking station by the Lessee�. This provision differed in certain respects from what had been proposed in correspondence in 1956.

The rent was increased on this basis until 1988 when it was increased to $50,000 per annum. From 1988 rent of that order was demanded and paid. In the period from 1996 to 1997 the rent was $600,000 per annum.

The lessee commenced proceedings claiming that the determinations of rent were invalid. Recovery of alleged overpayments of rent was also sought. The lessee�s case on construction was that in making its determination the lessor was permitted to have regard to the factors specified in clause 4(b)(iv) and no other factors. The proceedings were dismissed. The primary judge held that, on the proper construction of the lease, the lessor was entitled to charge a �fair and reasonable rent�.

The lessee appealed. The appeal was allowed, Spigelman CJ holding (inter alia) that although the lease had not been executed until 1976, it was the intention of the parties that it should contain the basic terms and conditions as they had been negotiated twenty years before. The Court set aside the orders below and decreed specific performance of the parties� agreement.

The respondent to the appeal has filed a notice of contention, advancing the grounds that the language of the lease was not ambiguous. Alternatively, irrespective of whether the language used was ambiguous, the surrounding circumstances were open to be used as an aid to construction.

The grounds of appeal include:

� Subclause 4(1) of the lease dated 15th May 1976 provided that the lease �shall for the purpose of determining the rights and obligations of the parties be construed as if it had been executed on (1 May 1958). Spigelman CJ erred in not accepting that subclause 4(1) precluded reference to surrounding circumstances during the period between May 1958 and May 1976;

� Spigelman CJ erred in concluding that subclause 4(1) reflected an intention of the parties that the deed of lease should continue the basic terms and conditions as they had been negotiated 20 years before; and

� Spigelman CJ erred in not treating conduct post 1 May 1958 as post contractual and thereby inadmissible on construction.

PASINI v. UNITED MEXICAN STATES & ORS (M39/2001)

Court appealed from: Full Federal Court of Australia

Date of judgment: 18 April 2001

Date referred to a Full Court of the High Court: 22 June 2001

The applicant (Pasini) is a citizen of Mexico. He arrived in Australia in 1997. His brother in law (Cabal) had arrived here in 1996. A series of warrants was issued in Mexico between 1994 and 1998 for the arrest of Pasini and Cabal. The charges brought against Cabal alleged, inter alia, that he had misused his position as president of a Mexican bank (Banco Union), and his position as a member of the �High Credit Committee� of Banco Union, to authorise loans to companies whose solvency �was questionable�. Pasini was alleged to have assisted Cabal to commit three offences which ultimately defrauded Banco Union.

In November 1998 Pasini and Cabal were arrested by the Australian Federal Police. Mexico sought their extradition from Australia to Mexico. An extradition hearing under s19 of the Extradition Act 1988 (Cth) was conducted before Lisa Hannan M. (the second respondent). In December 1999 the Magistrate ordered that they were both eligible for surrender within the meaning of s19. Both applied to the Federal Court for review of that decision pursuant to s21 of the Act. They challenged the constitutional validity of s21 of the Act. They acknowledged that the proceedings before the magistrate are administrative proceedings in which the magistrate acts as a persona designata. They submitted that the position of the Court in reviewing the decision of the magistrate under s21 could not be distinguished from the powers exercised by the magistrate under s19 and thus the conferral of administrative power, rather than judicial power, on the Federal Court was unconstitutional. They also sought to tender additional evidence before French J, which he declined to accept. French J did so on the basis that under the Act evidence could be adduced to establish an extradition objection, but not to establish that the person had not committed the offences alleged. French J dismissed their application. The Full Court dismissed their appeal.

Cabal and Pasini applied for special leave to appeal. On 22 June 2001 the Court (Gummow, Kirby & Callinan JJ) directed that the application be referred to the Full Bench and that the matter be ready to be argued as if on an appeal. On 2 August 2001, Cabal filed a Notice of Discontinuance in respect of his participation in the application for special leave to appeal.

The questions of law said to justify the grant of special leave include:

Whether s21 of the Extradition Act 1988 (Cth) represents an invalid conferral of administrative power on the Federal Court of Australia, that s21 is not severable from the remainder of the Act, and that the Act is therefore not a valid law; and

the extent to which (if at all) a person subject to extradition proceedings is limited to adducing evidence in support of their contention that an extradition objection exists or that the extradition proceedings are an abuse of process, where the evidence sought to be adduced also tends to show that the person is not guilty of the offences alleged.

WILSON v. ANDERSON & ORS (S101/2000)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 5 April 2000

Date referred to Full Bench: 13 October 2000

The applicant is a lessee under Western Lands Lease No 7951 (�the Lease�) which was executed under the Western Lands Act 1901 (NSW) (�the WLA�) in 1955 and transferred to the applicant in 1984. The lease was granted in perpetuity, subject to the provisions of the WLA and the regulations.

The first respondent made an application on behalf of the Euahlay � I Dixon Clan for a determination of native title in respect of land in the Western Division of New South Wales. This land is in the far north of the State, approximately thirty kilometres south of the Queensland border. The first respondent is a claimant under the Native Title Act 1993 (Cth) (�the Native Title Claim�). The land, the subject of the lease, is subject to the Native Title Claim. There are 43 other holders of similar leases which are also subject to the Native Title Claim.

The claim for the determination of native title has not yet been heard by the Federal Court. On 29 April 1999 Beaumont J ordered by consent that there be no mediation or further mediation in respect of the Native Title Claim and that the questions set out in the stated case be referred to the Full Federal Court.

The applicant contends that the existence of his lease provides a complete answer to the Native Title Claim. His argument is that native title cannot exist over the land in question because the effect of the WLA, the regulations made under the WLA, and the terms of the lease itself, is to extinguish or suspend any native title rights which involve presence on the land by the holder of any native title. The applicant argued before the Full Court that the reasoning of the majority in The Wik Peoples v. The State of Queensland (1996) 187 CLR 1 ought to be distinguished and not followed as the Queensland statutes considered in Wik differed from the WLA in material respects. The Full Court did not accept this submission.

The questions before the Full Court were as follows:

�(a) By virtue only of:

(i) the WLA; and

(ii) the regulations thereunder, as in force at the time of the grant of

the Lease;

did the Lease confer upon the lessee under the Lease a right to

exclusive possession of the leased land?

(b) If the answer to the question (a) is �No�, by virtue of:

(i) the WLA; and

(iv) the regulations thereunder, as in force at the time of the grant of

the Lease; and

(v) one or more of the terms and conditions of the Lease;

did the Lease confer upon the lessee under the Lease a right to

exclusive possession of the leased land?

title rights the exercise of which involved the presence on the leased

land by the holders of the native title:

(i) extinguished by the grant of the Lease; or alternatively

(ii) suspended upon the grant of the Lease for the duration of the

Lease?�

The Full Court held (by majority) that it was unnecessary to answer questions (a) and (b) in the stated case and that it was strictly unnecessary to answer question (c), but that in any event question (c) could not be answered on the material presently before the Court. The Court noted that although the Judges differed in the answers given, they all followed the majority opinions in Wik.

Questions of law said to justify the grant of special leave to appeal are:

� The questions that arise on this application are whether the Federal Court erred in law in not answering the questions in the stated case as follows:

Either question (a) or question (b):

1 �Yes�, or alternatively;

2 �Yes except over any �roads� or �tracks�, or �reserves� available for use

by the public, that existed at the commencement of the Lease�.

Question (c):

�Native title rights involving access to the land the subject of the Lease were extinguished upon commencement of the Lease in all areas in respect of which question (a) or question (b) is answered �Yes��.

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v. BHARDWAJ (S37/2001)

Court appealed from: Full Court of the Federal Court of Australia

Date of Judgment: 15 June 2000

Date of grant of special leave: 20 February 2001

The respondent is an Indian citizen who arrived in Australia on 4 July 1997 holding a student visa. On 6 August 1998 that visa was cancelled by a delegate of the appellant pursuant to s116 of the Migration Act 1958 (Cth) (�the Act�). On 21 August 1998 the respondent applied to the Immigration Review Tribunal (�the IRT�) for a review of that decision. On 2 September 1998 the IRT wrote to both the respondent and his migration agent, advising them that the hearing was scheduled for 15 September 1998 at 9.30 am.

A late application for an adjournment of the hearing was received, but overlooked by the IRT. Neither the respondent nor his migration agent attended the IRT on 15 September 1998. On 16 September 1998 the IRT affirmed the decision to cancel the respondent�s student visa. A copy of that decision (�the September decision�) was sent to both the respondent and his migration agent. Following representations made by the migration agent (concerning the overlooked request for an adjournment), the IRT agreed to reconsider the respondent�s application. After a subsequent hearing, the IRT revoked the cancellation of the respondent�s student visa on 22 October 1998 (�the October decision�).

The appellant filed an application for an order of review of the October decision in the Federal Court. Justice Madgwick dismissed that application, finding that the IRT was not functus officio after the publication of the September decision. His Honour further found that even if it was, the Court would exercise its discretion and refuse to set aside the October decision.

On appeal, the appellant submitted that the IRT was functus officio once the September decision was made and that the October decision should be set aside. The appellant further submitted that the IRT�s failure to consider the request for an adjournment did not amount to a failure to comply with s360 of the Act. That section requires the IRT, in circumstances where it cannot decide a matter favourably on the papers, to give an applicant an opportunity to appear before it.

The majority of the Full Federal Court (Beaumont and Carr JJ) found that the IRT had the power to revoke its September decision, or at very least to reconsider the exercise of its review power. Justice Lehane however concluded that Part 8 of the Act did not allow the IRT to revoke a decision once made. His Honour further held that s33(1) of the Acts Interpretation Act 1901 (�the AIA�) was inapplicable since a �contrary intention� appeared.

The grounds of appeal include:

That the majority of the Full Court of the Federal Court erred;

� in finding, if their Honours so found, that the decision of the IRT dated 16 September 1998 was �invalid� or �void�;

� in finding, if their Honours so found, that the IRT could ignore its decision dated 16 September 1998 and proceed to reconsider the respondent�s application for review; and

� in failing to find that the provisions of the Act manifest a contrary intention for the purposes of s33(1) of the AIA in relation to the duties and functions of the IRT.

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