Gageler
J
6.
21
In University of Wollongong v Metwally (No 2)4, six Justices of the High
Court said:
"It is elementary that a party is bound by the conduct of his case.
Except in the most exceptional circumstances, it would be contrary to all
principle to allow a party, after a case had been decided against him, to
raise a new argument which, whether deliberately or by inadvertence, he
failed to put during the hearing when he had an opportunity to do so."
22
Metwally (No 2) was a case in which an application to reopen was made
after orders had been pronounced and perfected. The observation applies with
somewhat diminished force in a case where a hearing has been conducted by a
Full Court of the High Court and where judgment is reserved, but the policy
expressed in the observation remains applicable even then.
23
To justify reopening, exceptional circumstances must be shown. Orderly
conduct of any proceeding in the High Court requires that all substantial issues
be identified in advance of any hearing before the Full Court. The "first duty" of
any court always being to be satisfied as to its own jurisdiction, to use the
language of Griffith CJ in Federated Engine-Drivers and Firemen's Association
of Australasia v Broken Hill Pty Co Ltd5, if a jurisdictional issue is to be raised at
all in this Court, it is of the utmost importance that it be raised at the earliest
available opportunity. In the event of an arguable constitutional issue being
raised, the procedure of the High Court is also affected by the specific statutory
requirement that timely notice is to be given to the Attorney-General of the
Commonwealth and the Attorneys-General of each of the States and Territories
in accordance with s 78B of the Judiciary Act 1903 (Cth).
24
The new argument sought to be raised by Senator Culleton being a
constitutional challenge to the jurisdiction of the High Court as the Court of
Disputed Returns, I would nevertheless consider it appropriate at least to refer the
issue of whether or not to consider that argument to the Full Court if I thought
the argument to be sufficiently strong to warrant that course. I do not.
25
The new argument which Senator Culleton seeks to raise is an argument to
the effect that conferral of jurisdiction by Div 2 of Pt XXII contravenes Ch III of
the Constitution by purporting to confer on the High Court a power to give an
advisory opinion in contravention of the limitation on the judicial power of the
Commonwealth recognised in In re Judiciary and Navigation Acts6. The
4
(1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; [1985] HCA 28.
5
(1911) 12 CLR 398 at 415; [1911] HCA 31.
6
(1921) 29 CLR 257; [1921] HCA 20.