Synopsis. The case before the Court was argued improperly by Smith and Tapper Lawyers and Barrister Foley, failing to engage the Commonwealth judicial powers pursuant to s71 of the Commonwealth Constitution 1901. No costs were awarded by Niall JA against Mr Pecora and Mr Weisinger, but costs were awarded to the defendants for Cotterill, the plaintiff.
A costs hearing was scheduled for 15 September 2021 in the Victorian Supreme Court to determine liability in the matter of Cotterill v Romanes. I had submitted an affidavit to the Supreme Court prior to the hearing. The essence of my argument was that jurisdiction had not been determined in the matter, specifically during the interlocutory stage, and if costs were to be determined, a hearing on jurisdiction should proceed prior to hearing any arguments on costs from the parties.
The following maxims of law apply: Jurisdiction can be challenged at any time; Jurisdiction once challenged cannot be assumed, it must be proven; Jurisdiction is a threshold issue and there is no discretion to ignore it – a decision made absent jurisdiction has no legal force behind it.
Jurisdiction has 2 elements: jurisdiction over the correct parties; jurisdiction over the subject matter. I contended that the court had jurisdiction over the subject matter (the implied freedom of political communication), but the wrong parties meant that joinder could not occur. Specifically, since the matter was Constitutional in nature, satisfying 76(i) of the Constitution (a matter involving the Constitution or its interpretation, the matter attracted federal jurisdiction. Therefore, the correct party was the State of Victoria and not the executive officers Romanes and Sutton.
Within my affidavit, I contended that as per the US case of Allen v Wright (1984), the court was ‘under an independent obligation to examine their own jurisdiction’. A fundamental question before the court was: How does the implied freedom of political communication contained within the Commonwealth Constitution operate? Comcare v Banerji (2019) answered this question. Implied freedoms operate as a restraint on legislative power; and not on the actions of its executive officers. The latter being the subject matter of judicial review.
Thus the arguments presented by Ms Foley were invalid in law. Not only did Ms Foley argue in the same way as Ms Banerji, the case of Palmer v WA was also instructive. QC Dunning, for Palmer providing the same flawed legal approach that was taken by Ms Foley. Ironically, Smith and Tapper Lawyers, instructed by Ms Foley were granted adjournment pending the outcome of the Palmer case. The result of the Palmer case further substantiated that implied freedoms do not operate on the actions of executive officers. Given that Ms Foley’s arguments did not ‘hit the mark’ (as per Niall JA), the judicial powers of the court were not exercised. My argument therefore, is that pursuant to s71 of the Constitution, the matter of costs should not arise as any ruling in Cotterill v Romanes had no legal effect, so therefore how could costs be awarded.
Niall JA made the ruling on the matter on the 30th of September 2021. Niall JA argued that myself and Mr Pecora should have commenced new proceedings if we wanted to challenge the validity of the Public Health and Wellbeing Act (2008). In my view, the matter raised by Ms Cotterill and myself and Mr Pecora were the same subject matter – the implied freedom of political communication. Thus, we all had a Constitutional matter, that was not distinctly different.
Niall JA highlighted that the High Court had made orders with regards to Palmer v WA in November 2020, and despite the ruling that called into question the line of legal arguments being presented by the plaintiff, they continued – and this was the basis to award costs against Cotterill. In my view, this reasoning has merit, but still falls flat given the issue of jurisdiction. Niall JA, in his ruling, states that the ‘Court has jurisdiction’, and that this is because the originating motion, filed by Smith and Tapper, references the unconstitutionality of the PHW Act (2010) and the implied freedom of political communication. Niall then goes onto substantiate his claim that the Court had jurisdiction by citing s39 of the Judiciary Act 1903, and further adding that ‘if the matter were not in federal jurisdiction, this Court would plainly have state jurisdiction to entertain a claim to the validity of executive action..’. However, High Court case law suggests otherwise. From Felton v Mulligan, 1971, Barwick CJ stated the following, ‘In my opinion, s. 109 of the Constitution, working with the Judiciary Act, ensures that there is no State jurisdiction capable of concurrent exercise with the federal jurisdiction invested in the State court.’. Thus, since the court could not exercise state jurisdiction, and the Court was in federal jurisdiction, given that Ms Foley’s arguments were not Constitutional questions, the Court indeed had no judicial power or jurisdiction once it was clear that Ms Foley did not seek to challenge the validity of the Act, as per Palmer v WA, and as per Banerji v Cth.
Niall JA acknowledges in his ruling on costs ‘the reasons of the High Court in Palmer were delivered…submissions made by the 1st plaintiff could not succeed… were very slim.’. Niall JA also clarifies that ‘Costs are not awarded to punish the unsuccessful party but to indemnify the successful party’. Consistent with this notion, Niall JA ruled that no costs should be awarded up to the point that the defence offered the plaintiff a chance to concede the case without any costs – 5 March 2021. Niall JA further ruled that ‘In all circumstances there should be no order as to costs in respect of them (Mr Pecora and Mr Weisinger). Costs were awarded against Cotterill, the sum of which will be disclosed.