Re McBain

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Gaudron,Gummow JJ,McHugh J,Kirby J,Hayne J,Callinan J
• Judgment Date: 18 April 2002
• Neutral Citation: [2002] HCA 16,2002-0418 HCA B
• Docket Number: C22/2000
• Date: 18 April 2002

[2002] HCA 16

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

C22/2000

C6/2001

Re John McBain

Second Respondent

and

Ex Parte Australian Catholic Bishops Conference & Anor

Applicants

Re John McBain

Second Respondent

and

Ex Parte Attorney-General of the Commonwealth of Australia Ex Rel the Australian Episcopal Conference of the Roman Catholic Church

Applicant

Commonwealth Constitution, ss 75(v), 76(i).

Judiciary Act 1903 (Cth), ss 30(a), 32, 33, 78A.

High Court Rules, O 55 r 17, O 64 r 2.

Re McBain ; Ex parte Australian Catholic Bishops Conference

Re McBain ; Ex parte Attorney-General (Cth) ex rel Australian Episcopal Conference of the Roman Catholic Church

Constitutional Law (Cth) — Judicial power of the Commonwealth — Matter — Claims in Court's original jurisdiction to certiorari for non-jurisdictional error of law on the face of the record in respect of concluded Federal Court litigation — Claimants not parties to prior litigation — No parties to prior litigation instituted appeal or sought constitutional relief in respect of the judgment in that litigation — Claimants include Commonwealth Attorney-General seeking to affirm the operation of a State law as not inconsistent with federal law within the meaning of s 109 of the Constitution — Whether claims give rise to a ‘matter’ under Ch III of the Constitution — Whether a matter arises under s 75(v) or s 76(i) of the Constitution independently of the right of appeal — Whether, if so, relief should be granted in the exercise of the Court's discretion.

High Court — Jurisdiction — Whether Court's original jurisdiction extends to claims to certiorari for non-jurisdictional error of law on the face of the record in respect of concluded Federal Court litigation — Claimants not parties to prior litigation — Whether claims give rise to a ‘matter’ under Ch III of the Constitution — Whether a matter arises under s 75(v) or s 76(i) of the Constitution independently of the right of appeal — Exercise of discretion to provide such relief.

Certiorari — Whether available against a judge of a federal superior court in respect of non-jurisdictional error of law on the face of the record — Discretion to grant — Whether Attorney-General entitled to certiorari as of right — Factors favouring discretionary refusal to grant certiorari in respect of non-jurisdictional error of law on the face of the record in litigation to which claimants were not parties.

Practice and procedure — Application to extend time — Application by Commonwealth Attorney-General on the relation of another for writ of certiorari instituted out of time — Factors favouring non-extension of time.

Practice and procedure — Parties — Intervention — Application by Commonwealth Attorney-General — Intervention by Attorney-General to put submissions partly at odds with submissions put by relator in name of Attorney-General.

Words and phrases — ‘matter’.

1 Gleeson CJ. These proceedings are brought, in the original jurisdiction of this Court, to quash a decision of a single judge of the Federal Court of Australia, Sundberg J1. The ground of challenge to the decision is not that the judge acted outside jurisdiction, or otherwise fell into jurisdictional error. It is that the decision, made within jurisdiction, was wrong in law. No party to the action in the Federal Court desires to question the judge's decision. It was not the subject of any appeal. The applicants in this Court were not parties to the action in the Federal Court. The primary question that arises in this Court concerns the manner in which the challenge to the Federal Court decision is now made. It raises considerations of importance to the structure and role of the federal judiciary. If that question is resolved adversely to the applicants, it would be both unnecessary and inappropriate for this Court to decide whether the decision of Sundberg J was correct.

Gleeson CJ

2 The starting point must be a consideration of the nature of the matter which came before the Federal Court, and in respect of which that Court exercised the judicial power of the Commonwealth. The power of the Parliament to make a law defining the jurisdiction of the Federal Court is, relevantly, a power to make laws with respect to ‘matters’ (Constitution, s 77). The original jurisdiction of this Court is conferred by the Constitution in ‘matters’ (Constitution, ss 75, 76). It is necessary to identify the matter with respect to which the jurisdiction of the Federal Court was exercised, to relate that to the proceedings in which the jurisdiction of this Court is invoked, and to inquire whether the claims made in these proceedings involve a matter.

3 The framers of our Constitution adopted the term ‘matters’ in preference to the terms ‘cases’ and ‘controversies’ which appear in Art III of the United States Constitution, and there are material differences between the two contexts2. Even so, Ch III was written ‘with a close eye to the judicial provisions of the United States Constitution’3. In neither jurisdiction is giving advisory opinions to the other branches of government regarded as a legitimate function of the federal judiciary. In In re Judiciary and Navigation Acts4 the majority of this Court, holding invalid legislation purporting to confer on the Court such a jurisdiction, said:

‘we do not think that the word “matter” in s 76 [of the Constitution] means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court.’

4 This does not mean that there must always be a controversy between parties. As was pointed out inIn re Judiciary and Navigation Acts5, and again in R v Davison6, judicial power may be exercised in proceedings ex parte, and in relation to subjects which, in another context, may have an administrative character. But the essential flaw in the legislation held invalid in the former case was that, inconsistently with s 76 of the Constitution, it purported to empower the Court ‘to determine abstract questions of law without the right or duty of any body or person being involved.’7

5 Thus the Court does not pronounce, in the abstract, upon the validity or meaning of Commonwealth or State statutes. To do so would not be an exercise of judicial power conferred by or under Ch III. Such pronouncements are made in an adversarial context, where there is an issue concerning some right, duty or liability. As the majority inNorth Ganalanja Aboriginal Corporation v Queensland8 put it, quoting from In re Judiciary and Navigation Acts:

‘The law is not judicially administered by judicial declarations of its content “divorced from any attempt to administer that law”.’

6 It is the relationship, or absence of relationship, between the question of law sought to be raised for the Court's decision in the present case, and any attempt to administer that law, that, in my view, is decisive.

7 The adversarial context in which, subject to the qualifications earlier mentioned, the judicial power of the Commonwealth is exercised, may impose practical limitations upon the capacity of the judicial branch of government to resolve legal questions. Not all parties to legal disputes submit their disputes for resolution by the judicial process. If they do not, no occasion for the exercise of judicial power arises. Courts do not have a mandate to seek out interesting and important questions of law, and decide them, irrespective of the desire of parties to litigate. Whatever may be seen as the precise extent of the role of judges in

making or declaring the law, it is limited in one vital, and salutary, respect: it can only be exercised in the course of deciding cases that are brought for judicial decision. And, even where litigation takes place, a losing party may, for any one of a number of reasons, including expense, accept a judicial decision without pursuing rights of appeal. Most decisions of courts of first instance never become the subject of appeal. Those decisions bind the parties, even though their precedential value may be limited, or their correctness may later be called in question, either at first instance, or on appeal, in proceedings between other parties. Many issues, or potential issues, of both private and public law, may never be judicially decided, or may never be decided by an appellate court, simply because of the manner in which people pursue their individual interests. And there may be limits, including limits dictated by political considerations, upon the lengths to which law enforcement authorities are prepared to go to enforce legislation in the courts.

8 In the present case, a law of the State of Victoria, which apparently bound a citizen in the conduct of his professional practice, was claimed by the citizen to be invalid. The Victorian authorities did not attempt to enforce the law against the citizen, or, when confronted with a legal challenge, to argue in support of its validity; although the Parliament of Victoria did not repeal the law. The validity of the law was a matter of concern to people other than the particular citizen and the law enforcement authorities, but the process of adversarial litigation turned out to be an unsatisfactory vehicle for testing that question. That is not an unusual situation. Decisions of courts often leave the law in a condition unsatisfactory to people who may be frustrated by the absence of an opportunity to challenge such decisions, or to test the law themselves.

9 Dr McBain found that certain treatment he proposed to administer to his patient, Ms Meldrum, was prohibited by s 8 of theInfertility Treatment Act 1995 (Vic) (‘the Victorian Act’). That legislation was enacted for purposes which included the purpose of...