Alley v Gillespie

[2017] HCATrans 196

[2017] HCATrans 196

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S190 of 2017

B e t w e e n -

PETER ALLEY

Plaintiff

and

DAVID GILLESPIE

Defendant

Directions hearing

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 SEPTEMBER 2017, AT 9.30 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with MR J.E. MACK for the plaintiff.  (instructed by Maurice Blackburn Lawyers)

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the defendant.  (instructed by Colin Biggers & Paisley Solicitors)

MS J.D. WATSON:   May it please the Court, I appear for the Commonwealth Attorney‑General.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes.

MR REYNOLDS:   Your Honour, we have circulated some proposed short minutes of order.

HER HONOUR:   Yes.

MR REYNOLDS:   Just for the benefit of counsel for the plaintiff, the first of the two questions in paragraph 1, the draft they would have received a little while ago was different.  I think that is the only change.  That is in the first line.

HER HONOUR:   I note, Mr Reynolds, the second question is framed in terms of whether the Court “can and should”.

MR REYNOLDS:   Yes.

HER HONOUR:   I thought tentatively the view was taken that “should” should be deleted.

MR REYNOLDS:   Yes, tentatively I think it was, but this does not refer to particular subpoenas and there are cases that say that the Court “will not lend its aid”, so I use that phrase.

HER HONOUR:   Yes, I see.

MR REYNOLDS:   I have the case here – “or will not assist” – and it is that sort of principle/practice that is meant to be picked up by that word.

HER HONOUR:   I understand.

MR REYNOLDS:   Not an inquiry into particular subpoenas, so the Court might find that there is – as to “can” that there is a rule and then, as to “should” that there is a practice or that the Court will not lend its aid or will not exercise its powers so as to compel documents.

HER HONOUR:   Yes.

MR REYNOLDS:   That is the intention of it, your Honour, and that is why, in a sense, we have backtracked slightly on that. 

HER HONOUR:   Yes.

MR REYNOLDS:   The rest of this document was proposed by the Commonwealth, except that we suggested in order 12 – which I think they agree with – 48 hours’ written notice, but I think the Commonwealth has agreed the remainder.  My learned friends have not perhaps had time to digest everything in this.

HER HONOUR:   Mr Walker?

MR WALKER:   Well, we have had it for 10 minutes and yes, we have digested it.  Your Honour, we have these submissions just about the questions.

HER HONOUR:   Yes.

MR WALKER:   An earlier iteration is, with respect, better for question 1, namely does the High Court have jurisdiction in this proceeding?  The formulation “Can the High Court decide” is, with respect, ambiguous.  A capacity to decide, for example, is dictated by the adequacy of material, among other things.  It is jurisdiction – that is the question.  Does this Court have jurisdiction?  That is how that should be expressed.  The normative expression, if that is the way to view it, “and should” that is proposed in question 1 is completely inappropriate to a jurisdictional question.

HER HONOUR:   Yes.

MR WALKER:   It is of course always a matter for the Court to determine whether a jurisdiction is one which includes the possibility of withholding relief otherwise justified.  That is possible, for example, in the declaratory jurisdiction.  It is not necessarily possible in all jurisdictions.  No doubt in an answer to the question about does the High Court have jurisdiction, there will be whatever is appropriate supplied by way of explanation in the Court’s answer.

In relation to question 2, I think we understand the way my friend has just responded to your Honour’s question about the parenthetical “and should” in that question.  I do not suggest by the following paraphrase to put words in his mouth – that would be impossible – but we understand that the distinction is between a discretionary withholding of an issue of subpoenas by reference to the particular circumstances of the case, and that is not intended to be encompassed in that form of question, as opposed to what my friend called a practice by which a power exists but which will not be exercised.

Now, I think simply to articulate it in that fashion is to raise some intellectual eyebrows.  Is there such a thing as a power that exists, but should not (ever) be exercised?  It is for those reasons, in our submission, that those parenthetic words are not helpful.  The answer again to the question of power is one which, as things fall out, may involve explanation, not only in the reasons of the Court naturally, but also in the answer.

The notion that the Court will give, as it were, in the abstract, observations about a power that exists but why one, as it were, might be slow to exercise it, is appropriate for, in the reasons of the Justices, but, with respect, almost impossible to understand in an answer, almost as if a kind of a boiled down Halsbury entry was being devised, which really is not the way the Court answers these questions.

In particular I have in mind the anomaly which is introduced by the idea of yes to power, but no to it ever being exercised.  If “ever” is too strong – and I do that provocatively, of course – then what we are really arguing is whether in this case the subpoenas sought should be issued and that, I think, is what is disavowed as appropriate for the Full Court, which, with respect, must be right.

HER HONOUR:   The Earl of Mexborough line of territory would have it that the Court should not lend its aid to a common informer by its processes.

MR WALKER:   That is right – which is more than subpoena.  The subpoena is the example that is apposite, yes.

HER HONOUR:   Yes.  If that is applicable in this context ‑ ‑ ‑

MR WALKER:   That is right.

HER HONOUR:   ‑ ‑ ‑ one might describe it as a rule.

MR WALKER:   Yes.

HER HONOUR:   In which case you would say the deletion of the words “and should” is ‑ ‑ ‑

MR WALKER:   Concentrates the mind on the issue – is there a power?

HER HONOUR:   On the issue.  Is there a rule that applies in terms of the Earl of Mexborough?

MR WALKER:   Common terms - exactly so.  The idea of something which is not a rule or does not deny power but which says in the abstract – that sounds like a rule and that is how a rule operates – it says in the abstract this power should never be exercised is, in our submission, not something that is worth the attention of the Court as an abstract proposition.

We understand there is a common law, query equitable, in fact, rule being sought to be vindicated in the face of the Court’s promulgated Rules of Court and question 2, without any parenthetical “and should”, will raise that issue fair and square and in a way which invites an answer that is both plausibly capable of being formulated and would be useful.  May it please the Court.

HER HONOUR:   Yes, I see.  Mr Reynolds.

MR REYNOLDS:   Your Honour, can I respond to the second issue first?

HER HONOUR:   Yes.

MR REYNOLDS:   Your Honour, with respect, very appositely talked about the Earl of Mexborough Case in terms of whether the Court should lend its aid.  That is what we are trying to pick up and that is the very principle – if I could hand your Honour a decision – that was discussed using that type of language in the case of Environment Protection Authority v Caltex (1993) 178 CLR 477. I will just give your Honour the relevant pages. Earl of Mexborough is picked up at page 519 at about point 3 and if we could just look at the language that is used – just some particular passages.  At about point 3 on 519 the quote from Mexborough:

the Courts will not assist the plaintiff –

Then at about point 7:

limitation which the courts placed on the exercise of their powers to compel –

Over the page to 520 at about point 2:

Thus the court refuses to lend its process –

Then two lines further on:

Discovery is denied because the policy of the law requires that the court should not give discovery –

Then at about point 5, the paragraph beginning “In refusing to lend its process”, last two lines on the page:

refusing discovery in proceedings –

Then 521 at about point 2:

policy of the law leads the court to refuse –

Then at about point 4:

limit the exercise of other curial powers –

et cetera.  This is the discussion ‑ ‑ ‑

HER HONOUR:   The notion of limiting the exercise of the power that otherwise exists ‑ ‑ ‑

MR REYNOLDS:   That is what we are trying to pick up.

HER HONOUR:   I understand.  Mr Walker’s point is if it be the case that it is a rule that applies in the Australian constitutional context, then you succeed and you succeed on a formulation of the question that does not include the words “and should” which introduces a certain potential muddiness.

MR REYNOLDS:   We say not, particularly in the light of discussion.  I am not getting into, as it were, a general exercise of discretion in relation to particular subpoenas.  It is that the Court might find that the power exists but that in penalty proceedings, particularly of this kind, the Court will not do that.

HER HONOUR: But is that not the point, Mr Reynolds? The Court will only, in dealing with question 2, be looking at the power in the context of proceedings brought by a common informer under the Common Informers Act. That is the context for the question so that – the Court is not looking at the issue of the power of the Court to issue a subpoena on the note of a Justice. It is looking at it in the context of the Common Informers (Parliamentary Disqualifications) Act and a proceeding brought by a common informer against the background of the rule of common law or equity explained in the Earl of Mexborough.  Now, given that, your contention if it is good, is that the Court’s general power to issue a subpoena is constrained or limited, to use the words picked up from Caltex, in the context of such a proceeding.

MR REYNOLDS:   Yes, and that will be our first submission, but it may move slightly widely to whether, as a matter of policy or practice, the Court will not issue subpoenas in a case of this kind.  My learned friend wants to narrow it so that I have to have a…..rule.  I want it just slightly wider than that to pick up this line that Justice Brennan talks about, and no more.  That is all I need and that is all I ask for, that this be read in the light of this discussion in these pages in the Caltex Case. 

There is nothing more involved in it and we will be adopting what is said here.  We first say a rule and then I will dilate that just slightly to encompass what Justice Brennan has said.  That is why we have adopted the formulation we have and we will abide by that limitation, as it were, that epexegesis in interpreting the words “can and should”.  Anyway, that is as far as I can take it, your Honour.

HER HONOUR:   Yes.  Now, as to the first point, Mr Reynolds, I think there is some force to that, is there not?

MR REYNOLDS:   We submit no force at all, with respect.  On that issue can I hand your Honour up a further document.  This is a paragraph from some submissions which I previously drafted in another case.  If your Honour looks to it your Honour will see we were talking here about qualification or disqualification of Members of Parliament.  This is an area of so‑called exclusive – the exclusive cognisance of Parliament.

HER HONOUR:   Yes.

MR REYNOLDS:   The way that works is not as a matter of jurisdiction at all but as it is put in these authorities as a – and this is a very unusual principle, your Honour.

HER HONOUR:   Yes.

MR REYNOLDS:   It is matter of “a self‑denying ordinance” – that is line 3, or at about line 5 “a principle of non‑intervention” or at about line 9, that it is “outside the ordinary scope of inquiry by the Courts” or where there is another formulation “the judicial process does not lie”.  It is not a matter of jurisdiction and that is the point which the Commonwealth and my client will be agitating in some form under this question.  To limit it by jurisdiction would necessarily get the whole case off on the wrong foot.

HER HONOUR:   I see.

MR REYNOLDS:   So we simply want to pick up this notion in this paragraph which – I do not know if I could call it trite but it is well known and that is why we do not want to confine it in the way suggested by the plaintiff.

HER HONOUR:   Thank you, Mr Reynolds.

MR REYNOLDS:   So there are two, as it were, epexegeses which justify or attempt to justify that wording on both questions.  We are content to, as it were, have the notions limited in that way.

HER HONOUR:   Yes, all right.  Ms Watson.

MS WATSON:   Your Honour, I only have a very short submission to make.

HER HONOUR:   Yes.

MS WATSON:   On the question of whether the additional words should be included in the questions to be referred, it is of course a matter for the parties and the Attorney‑General intervening, but the Attorney‑General does not object to the inclusion of the additional words.

HER HONOUR:   When you say the additional words, are you referring to the words “and should” in question 2?

MS WATSON:   Yes, “and should” – questions 1 and 2, yes.

HER HONOUR:   Yes.

MS WATSON:   That is all I need to say about the questions.  Just one more submission which is that this matter being of a sui generis character and raising a question as to the jurisdiction of this Court to determine the qualification of Members of Parliament in common informer actions, being a question that has not fallen before for decision and is likely to arise in a number of other proceedings before the Court, in those very particular circumstances the Attorney‑General will submit to an order to pay the costs of the plaintiff and defendant on a party/party basis.

HER HONOUR:   Thank you, Ms Watson.  That is noted.

MR WALKER:   Your Honour, might I be heard on this question of the drafting of questions for referral to the Full Court on the basis that the transcript of my friend’s comments this morning will render appropriate wording which on its face raises questions that ought not to be before the Full Court.  One hesitates to say there is any rule here, but prudence suggests that that is not a course which ought to be followed unless it is unavoidable. 

It can be avoided in this case by confronting early rather than never or late the nature of the argument sought to be raised.  With respect to question 1, it is not enough for my friend simply to assert that it does not raise a question of jurisdiction.  The extract of argument is from a case in which jurisdiction of a criminal court was in question and it was being denied on account of so‑called exclusive cognisance in a house.  It was a denial of jurisdiction.

With respect, counsel’s expression “‘jurisdiction’ of the courts in any narrow threshold sense” that you see in that first sentence of that un‑headed extract is enough to alert your Honour to the fact that the word “jurisdiction” as is notorious has different shades of meaning in different contexts.  But in the question, as we propose it ought to be referred, does the High Court have jurisdiction, it is in a familiar form and it may well be confronting – I make no bones about that – in relation to the enforcement of a constitutional claim.

Of course you would expect me to say that is a confronting notion that the High Court does not have jurisdiction, it not being suggested that any other court would have jurisdiction – no other court would have jurisdiction if this Court did not, is what I meant.  For those reasons, the words “and should” cannot be read as referring to, at least in the United Kingdom, or perhaps I should more accurately say England and Wales, the historical pussyfooting between the courts of law and the House of Commons with respect to what each – the language each uses of the other when their powers clash.

Now, that is historical and not of great assistance in this country because, as Fitzpatrick and Browne, for example, demonstrates, there is incontestable jurisdiction in this Court for certain things but then there is equally incontestably a rule, as Sir Owen, I am sure it was, on behalf of the Court made it clear, that the Court would never look at.  You call the distinction between the power of the House to punish and the particular exercise of that power on the merits of the particular case.  The first in a country with a limited constitutional is for the courts and that immediately – so it is on the other side of an intellectual and historical divide from the United Kingdom.  The second is for the House, borrowing from the historical antecedents.

Now, that is a question of jurisdiction.  What his Honour was saying, what the Court was saying was the Court has no jurisdiction to say we do not think the House should have resolved to punish these men for contempt.  The words could not be more clear in that case.  In our submission, there are

distinctions without real differences that are suggested in the mooted argument.  They can be a matter of argument, but for them to be the justification for leaving that broad normative expression “and should” in a question is, in our submission, dangerous and inappropriate.  That is the first point.

In relation to the subpoena, a related but slightly different proposition is appropriate.  Sir Gerard Brennan’s collection of language is of course in terms of rule, that is, just picking one of those from which my friend quoted – and they are all really in the same case – the top of page 520 of EPA v Caltex - his Honour’s paraphrase of an old principle: 

Discovery is denied because the policy of the law requires that the court should not give discovery at all in such an action.

That is the language of a rule.  Now, if my friend wants to include in the question – because I am not asking, as your Honour will appreciate, for the word “rule” to be used, but if he jibs at the word “rule” and he wishes to use an expression such as – ask a question whether the policy of the law requires that the court should not give – should not issue a subpoena at all in such an action, we would not object.

After all, as you have just heard me submit, that amounts to saying there is a rule.  But if he wants to use that kind of language, I would not have any difficulty with that and, with respect, it may be it captures the notion that he has been suggesting is conveyed by the word “should”.  But the word “should” as it stands is one which ought not to require reference to transcript in order to understand that it does not mean what it might mean.  That is my point.

HER HONOUR:   Yes.  As to the second question, Mr Reynolds, what do you say to rephrasing it so that it reads “If the answer to question 1 is yes, is it the policy of the law that the High Court should not issue subpoenas in this proceeding”, et cetera?

MR REYNOLDS:   Your Honour, I can pick up all of these various things in this case, I am happy to do that - that is the Caltex Case - and list them all. 

HER HONOUR:   There is no need to list them all.  It suffices, does it not - is not to identify as the nub of the point the question for the Full Court is, is it the policy of the law that the Court should not issue a subpoena in a proceeding brought by a common informer under what I will shortly describe as the “Common Informers Act”?  That is the issue.

MR REYNOLDS:   Your Honour, again, these are the various phrases that we will be relying on.  They are not in terms of a rule.

HER HONOUR:   Which are the phrases that you say do not speak to a rule?

MR REYNOLDS:   Well, for example, page 519, in Mexborough, “the Courts will not assist”.

HER HONOUR:   Yes.  “Will not assist”- what does it mean, Mr Reynolds, if it is not saying there is a rule in relation to proceedings of this character which precludes the issue of a subpoena or other assistance?

MR REYNOLDS:   It may be more a rule of practice or just a policy, your Honour.  That is what I have said before.  For example – if my learned friend wants to make submissions I will yield.

MR WALKER:   Quite so.  The word “rule” is used by Lord Esher.

HER HONOUR:   Yes.

MR WALKER:   Three lines on:

The rule by which a witness is protected from being called on –

The first sentence that my friend has been relying upon is refuted by his Lordship as to the reason given for the reason why the court will not assist.  Then in referring to that and giving the true answer, his Lordship says “The rule by which a witness is protected” when really this is semantics without any purpose.

MR REYNOLDS:   We are talking about the privilege against self‑incrimination and the privilege, vis-à-vis a penalty, and then a wider concept.  I do not accept what my friend says.

HER HONOUR:   Mr Reynolds, if one speaks of the policy of the law being such that the High Court would not lend its processes to the assistance of a common informer, whether one characterises that as a rule or – I think I have forgotten your ‑ ‑ ‑

MR REYNOLDS:   Rule of practice, or policy.

HER HONOUR:   We are into a degree of hair splitting, are we not?

MR REYNOLDS:   I am not reading a particular form of words.

HER HONOUR:   What I am raising with you is it seems to me it would address Mr Walker’s concern and meet your concern if question 2 were reframed to read “If the answer to question 1 is yes, is it the policy of the law that the High Court will not issue subpoenas in this proceeding directed to a forensic purpose of assisting the plaintiff”, et cetera.  Surely that captures your argument?

MR REYNOLDS:   I hope it would, yes, your Honour.

HER HONOUR:   Mr Walker, do I understand you are content with that formulation?

MR WALKER:   Indeed.

HER HONOUR:   Yes, very well.  Coming back then, Mr Reynolds, to the way the first question is framed ‑ ‑ ‑

MR REYNOLDS:   Well, just on that, my learned friend referred to another case and talked about it being only an argument as to jurisdiction.  That is not right.  The submission that was put in the other case preceded – this is the recent Court of Criminal Appeal decision in Obeid – upon an admission as to jurisdiction and then an assertion that the court would not exercise that admitted jurisdiction because of the principle of exclusive cognisance.  So what my learned friend, with respect, told your Honour is not accurate in that respect.

This is a submission which is put, and as I say I do not put it as high as being trite, but it is something over and beyond jurisdiction.  My learned friend also mentioned the Fitzpatrick Case and said that that was in terms of a rule.  That is not right, although I agree Fitzpatrick itself is not clear on this point.  It is not right because these cases establish that it is not a matter of jurisdiction at all.  So we need, in order to pick up that concept, something wider than the notion of jurisdiction.  Mr Walker wants to narrow the question so it is only jurisdictional to make it easier for himself.

HER HONOUR:   Yes.

MR REYNOLDS:   Obviously, we want – the Commonwealth and my client want to rely on these broader notions and we submit we should be permitted to do so.

HER HONOUR:   Yes.

MR REYNOLDS:   I am not ready to do any particular…..as I am not on the second question.  I just want to be able to put the points we want to put.

HER HONOUR:   Yes.  Well, Mr Walker, I am not sure that I see the difficulty that troubles you in relation to the first question.

MR WALKER:   It is the “and should”, your Honour.

HER HONOUR:   I understand – the purpose that it serves is the argument that Mr Reynolds foreshadows which he says it does not go to a question of jurisdiction but a wider concept.  Now, maybe that is right and maybe that is not, but the ‑ ‑ ‑

MR WALKER:   Your Honour, what we are headed to is a question which my friend is putting forward – my words, not his – as about a jurisdiction that cannot be exercised.  It will not serve really to say not only saying a jurisdiction which should not be exercised, because the difference between those two expressions as a matter of English throws up the problem.  We are all familiar with the jurisdiction that should not be exercised in a particular case, the declaratory jurisdiction, injunctive jurisdiction.  That is easy.  They have nothing to do with this case at all.

HER HONOUR:   Yes.

MR WALKER:   The same is true with what I might call stays of proceedings.  There is a jurisdiction which should not be exercised because there is an abuse of process, for example.  We are not in that area.

HER HONOUR:   We are in another area that has its own difficulties and Mr Reynolds does not wish to be cut out of an argument respecting the concept of the Parliament’s exclusive cognisance of matters affecting membership.

MR WALKER:   Your Honour is entitled to know, before engaging the Full Court by our question, whether it will be said the Court has power or not.  That may not be an end of the case.  We say it would be but that is not the point.  That may not be an end of the case, but it is impossible to believe that if this goes to the Full Bench and counsel are on their feet from time to time, that question or something like it will arise.  It probably, I can predict, will have been made contrary in an exchange of written submissions beforehand.

There needs to be a monosyllabic answer surely to that question, do you say the Court has power or not?  It could hardly be answered by saying yes and no, and if it is answered yes, whether you jib at the word “jurisdiction” or not, the next question is “and what does the law say” because it is not about the merits of this case apparently – “what does the law say concerning the exercise of that power”? 

It is impossible to imagine that counsel will ever say that it should never be exercised or may never be exercised because there is still some logic in this aspect of the law and the power to decide, which may never be exercised, is not a power to decide.  We are simply suggesting, with respect to your Honour, that these things are better faced now than in the first 40 minutes of an argument in Canberra.

HER HONOUR:   I understand that, Mr Walker, but I am mindful that the – it may be a matter of semantics ‑ ‑ ‑

MR WALKER:   It is, I am sure.

HER HONOUR:   But Mr Reynolds should not be cut out of his argument that jurisdiction may not entirely capture the concept of an area of exclusive – of Parliament’s exclusive cognisance of ‑ ‑ ‑

MR WALKER:   Your Honour, it is impossible to see this as an exclusive cognisance question because the Constitution says you can sue in a court of competent jurisdiction for the penalty.

HER HONOUR:   The Constitution does not say that.

MR WALKER:   Yes.

HER HONOUR:   I am sorry – you are talking section 46, yes.

MR WALKER:   Yes, and it is an anterior question whether the disqualification exists which is the jurisdictional fight here.

HER HONOUR:   Indeed.

MR WALKER:   Exactly, so we cannot talk about exclusive cognisance for the recovery of the penalty. We know that is in a court. The Constitution says that.

HER HONOUR:   No, but the right to recover pursuant to section 46 ‑ ‑ ‑

MR WALKER:   Yes.

HER HONOUR:   ‑ ‑ ‑ flows from, under this statute, the declaration of incapacity.

MR WALKER:   Quite.  I do not think ‑ ‑ ‑

HER HONOUR: The issue that Mr Reynolds seeks to ventilate, touching on this Court – on the conferral of jurisdiction under the Common Informers Act is ‑ ‑ ‑

MR WALKER:   Exactly.  Now, that cannot be exclusive cognisance because everyone agrees that within the 40 days there is the Court of Disputed Returns possibility and everyone agrees that there are referrals possible from a House.  So that is all I am saying.  Whatever it is it is not exclusive cognisance.  It might be a sibling of it, but it is not exclusive cognisance by definition.

HER HONOUR:   That may mean the argument is not good, Mr Walker, but ‑ ‑ ‑

MR WALKER:   Yes.

HER HONOUR:   My concern is not to cut it off.

MR WALKER:   With great respect, we do not wish to cut off arguments.  We do wish the question, with respect, to be one that has no peril venturing into the merits.  Now, I know my friend has protested a sufficient number of times that he will not be heard to say differently, but none of us is indispensable.  The questions will survive us and, as I say, we should not have to look to transcript in order to say the normative “should” does not have its ordinary normative meaning.  That is our point.

HER HONOUR:   I understand, Mr Walker.

MR WALKER:   Your Honour, I am repeating myself.

HER HONOUR:   I understand, but I am against you on question 1 and partially in your camp on question 2.  To that end there will be the following orders.

The following questions are referred to a Full Court under section 18 of the Judiciary Act 1903 (Cth):

1.Can and should the High Court decide whether the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) (“Common Informers Act”)?

If the answer to question 1 is yes, is it the policy of the law that the High Court should not issue subpoenas in this proceeding directed to a forensic purpose of assisting the plaintiff in his attempt to demonstrate that the defendant was a person declared by the Constitution to be incapable of sitting as a Member of the House of Representatives for the purposes of section 3 of the Common Informers Act.

2.On or before 10 October 2017, the plaintiff file an agreed statement of facts.

3.On or before 10 October 2017, the plaintiff file and serve a section 78B notice.

4.On or before 13 October 2017, the Commonwealth file and serve a case book.

5.Subject to any further or other direction, Part 44 of the High Court Rules 2004 (Cth), except rule 44.06, will apply to this proceeding as if it were an appeal.

6.On or before 10 November 2017, the Commonwealth and the defendant file and serve annotated submissions and a list of authorities.

7.On or before 10 November 2017, any intervener in support of the defendant file and serve annotated submissions and a list of authorities.

8.On or before 22 November 2017, the plaintiff file and serve annotated submissions and a list of authorities.

9.On or before 22 November 2017, any intervener in support of the plaintiff file and serve annotated submissions and a list of authorites.

10.On or before 27 November 2017, the Commonwealth file and serve submissions in reply.

11.Service of documents may be effected by electronic transmission.

12.Liberty to apply on 48 hours’ written notice.

Is there a difficulty?

MR REYNOLDS:   Not a difficulty, your Honour.  In the draft in order 10 it said “if any” at the end.

HER HONOUR:   I am sorry.  Yes, I will amend order 10 to include the words “if any” after the word “reply”.

MR REYNOLDS:   I am told, although I did not pick it up, that your Honour left the words “and the defendant” out of order 10 so that it should read “the Commonwealth and the defendant file and serve submissions in reply”.

HER HONOUR:   The draft does not – yes, very well, I will add the words after “the Commonwealth” “and the defendant”.  Thank you, Mr Reynolds.  Adjourn the Court.

AT 10.10 AM THE MATTER WAS ADJOURNED