Allders International Pty Ltd v Cmr of State Revenue, ex parte Att-Gen of Vic

[1995] HCATrans 365

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M62 of 1995

B e t w e e n -

ALLDERS INTERNATIONAL PTY LTD

Applicant

and

COMMISSIONER OF STATE REVENUE (VIC)

Respondent

Ex parte:  ATTORNEY-GENERAL OF VICTORIA

Application for removal pursuant to section 40 of the Judiciary Act

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 DECEMBER 1995, AT 10.04 AM

Copyright in the High Court of Australia

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria:  May it please the Court, I appear with my learned friend, MS P.M. TATE, for the Attorney-General for the State of Victoria who is the applicant, (instructed by the Victorian Government Solicitor), and on behalf of the respondent we appear for the Commissioner of State Revenue. (instructed by Solicitors for the Commissioner of State Revenue)

MR B.H. DUTHIE:   May it please the Court, I appear on behalf of Allders International Pty Ltd.  (instructed by Baker & McKenzie)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:  If the Court pleases, I appear for the Attorney-General for the Commonwealth, intervening.  (instructed by the Australian Government Solicitor).  Perhaps if I indicate to the Court, your Honours, our interest is to support the judgment though perhaps not the argument used in reaching the judgment itself, but our main interest today is if the matter is removed at some time there should be orders made in the usual form as happens in these cases nowadays for submissions, your Honour.

BRENNAN CJ:   Yes.

MR GRAHAM:   May it please the Court, this is an application by the Attorney-General for the State of Victoria under section 40(1) of the Judiciary Act for removal of a cause now pending in the Court of Appeal of the State of Victoria. The application is supported by an affidavit of James Ruddle, sworn on 25 October 1995. The cause arises under the Constitution and involves its interpretation by reason of the matter set out in the notice under section 78B of the Judiciary Act which is to be found at page - - -

BRENNAN CJ:   There is no discretion to be exercised, is there, Mr Solicitor?

MR GRAHAM:   We would respectfully submit not, your Honour.

BRENNAN CJ:   What do you have to say about that, Mr Duthie?

MR DUTHIE:   Your Honour, the application is not opposed.

BRENNAN CJ:   There will be an order for removal.  Is there any reason why we cannot proceed to the matter of the directions immediately?

MR GRAHAM:   There is no reason, your Honour.  We do not have a date but, perhaps, an order similar to that which your Honour the Chief Justice gave in the Levy matter might be given so as to operate, as it were, retrospectively from the beginning of the sittings which it set down.

BRENNAN CJ:   Do the other parties know of the form of that order?

MR GRAHAM:   No, I had not turned my mind to it, your Honour, but it would give six weeks to Allders as appellant to file an outline, or submissions and three weeks for the respondent and, in this case, the intervener, to file submissions.

BRENNAN CJ:   That is six weeks before the commencement of the sittings at which the case is appointed to be heard?

MR GRAHAM:   Yes.

BRENNAN CJ:   And three weeks before for the respondent?

MR GRAHAM:   Yes.

BRENNAN CJ:   And one week before for the interveners?

MR GRAHAM:   One week for reply.

BRENNAN CJ:   And the interveners?

MR GRAHAM:   I would submit that the interveners, perhaps, could provide their submissions one week beforehand.

BRENNAN CJ:   One week before, yes.  What do you have to say about that, Mr Duthie?

MR DUTHIE:   Your Honour, I do not have instructions in relation to those proposed directions.  I have nothing to submit in relation to them.

BRENNAN CJ:   There is nothing that you know of which would be inconvenient or inappropriate in those directions so far as your client is concerned?

MR DUTHIE:   No, your Honour, there is not.

BRENNAN CJ:   Mr Solicitor for the Commonwealth?

MR GRIFFITH:   We would acquiesce, your Honour.

MR GRAHAM:   May I add one observation?  The format in the other matter today was direction for comprehensive outlines of submissions.  It is a format that has been used, at least I know, by your Honour Justice Dawson in a case last year and I think others have adopted the format as well.  It seems to be a convenient halfway house between an ordinary outline and a full written submission and does leave some room for oral argument.

BRENNAN CJ:   Yes, not an unnecessary room for oral argument, however.

MR GRAHAM:   No.

BRENNAN CJ:   It can follow the same format, I should think, Mr Solicitor.

MR GRAHAM:   May it please the Court.

BRENNAN CJ:   There will be directions accordingly.

AT 10.08 AM THE MATTER WAS ADJOURNED