Gakhar v Sheppard [2001] FCA 1501

FEDERAL COURT OF AUSTRALIA

Gakhar v Sheppard [2001] FCA 1501

PRACTICE AND PROCEDURE – application for adjournment of trial – constitutional matter – need to issue a notice of constitutional matter pursuant to s 79B of Judiciary Act 1903 – highly tenuous constitutional claim – need for law reform. Judiciary Act 1903 (Cth), s 78B Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292, cited State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549, cited Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, ALRC 92, October 2001 VIJAY GAKHAR v WILLIAM SHEPPARD IN HIS CAPACITY AS DELEGATE OF THE SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS A67 of 2000

MADGWICK J 24 OCTOBER 2000 CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY A 67 OF 2000

DISTRICT REGISTRY

BETWEEN: VIJAY GAKHAR

APPLICANT

AND: WILLIAM SHEPPARD IN HIS CAPACITY AS DELEGATE OF THE SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 24 OCTOBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: 1 In this matter, the applicant suggested, a day before the two day hearing of the case, that there is involved in it a matter arising under the Constitution or involving its interpretation within the meaning of s 78D of the Judiciary Act 1903 (Cth). My preliminary impression is that the point in question is at best highly tenuous. 2 Nevertheless, the respondent accepts that the matter at issue does fairly fall within s 78B. Faint as the applicant's prospects appear to be, I cannot say that the supposed constitutional point is raised frivolously, vexatiously or as an abuse of power. Accordingly the respondent's concession appears to be properly made: see generally French J's discussion of the matter in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at 296-7 with which I respectfully agree. 3 Nor would it be right, in my opinion, to afford the Federal, State and Territory Attorney-Generals an inconveniently and disrespectfully short period of time in which to consider the possible interests of their jurisdiction in the matter. Section 78B exists to serve a high constitutional purpose, as Kirby P made clear in State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549, and the courts are, in no "adequate position to assess the full range of interests that an Attorney-General may wish to protect": ALRC 92, para 13.21, p 272. 4 As s 78B stands, the hearing will need to be vacated. The applicant should, as the respondent asks, pay the costs thereby thrown away. 5 The practical importance of the recent Recommendation 13-1 of the Australian Law Reform Commission in its recent report "The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation", ALRC 92, October 2001, for reform of s 78B is highlighted by what has occurred in these proceedings. The recommendation appears, with respect, to be conservative, well thought out and unlikely to excite political controversy. It is to be hoped that urgent steps to implement it might commend themselves to the new government once the presently announced election is concluded. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.