Attorney-General Cth v Breckler

[1998] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P10 of 1998

B e t w e e n -

THE ATTORNEY‑GENERAL OF THE COMMONWEALTH

Applicant

and

DANIEL NATHAN BRECKLER, DOUGLAS IAN FREEDMAN, DAVID RHINE and MARCUS IVAN ROSENWAX (TRUSTEES OF THE CECIL BROS PTY LTD SUPERANNUATION PLAN)

First Respondents

SHIRLEY LESHEM

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 JUNE 1998, AT 10.55 AM

Copyright in the High Court of Australia

______________________

MR H.C. BURMESTER, QC, Acting Solicitor-General for the Commonwealth::   If it please the Court, I appear with MR G.R. KENNETT, for the Attorney‑General as Applicant(instructed by the Australian Government Solicitor). 

MR D.H. SOLOMON:   I appear for the first respondent. (instructed by Solomon Brothers)

GUMMOW J:   Yes.  The Senior Registrar certifies that she holds a letter from Messrs. Freehill Hollingdale and Page, solicitors for the second respondent, advising that that party has been served with the application for special leave and does not propose to enter any appearance. 

Mr Solomon, perhaps we might call on you first.

MR SOLOMON:   If it please the Court.

GUMMOW J:   Subject to one matter which we will raise with the Acting Solicitor-General relating to costs, subject to the ventilation of that question, is this application seriously opposed?

MR SOLOMON:   Well, one cannot oppose it on the grounds that there are serious questions behind it.  The only question is whether they are sufficiently arguable at all to warrant the matter going any further.  I could only address you on the basis that there is really no serious question to warrant it going further, but I certainly cannot submit that the question is not a matter of serious importance.

HAYNE J:   The Full Court divided in its opinion, did it not?

MR SOLOMON:   It divided only on one very final aspect, and that was whether enforceability was present with respect to decisions of this tribunal and the dissent‑ ‑ ‑

HAYNE J:   Does not the bare fact of division demonstrate that there are arguable issues here?

MR SOLOMON:   Well I cannot contend otherwise on that, no, except to say that the dissenting view is really inconsistent with the Court’s unanimous decision in Brandy’s Case, that enforceability by a tribunal itself is not essential, looking at the matter as a substantive and not as a matter of form and‑ ‑ ‑

GUMMOW J:   Yes, but this legislation is of enormous importance, this particular legislation here.

MR SOLOMON:   Yes, well I cannot argue with that, your Honour.

GUMMOW J:   Well, perhaps I will ask the Acting Solicitor what the Commonwealth’s position is on costs.

MR SOLOMON:   Yes, all right, thank you.

GUMMOW J:   Now, what is the applicant’s position at the moment?  It seems to involve something less than what we might have in mind?

MR BURMESTER:   I understand that, your Honour.  I do have instructions that if it was a condition for the grant of special leave that we would pay the costs of another party in any event, that we would agree to such a condition.

GUMMOW J:   That would be of the first respondents.

MR BURMESTER:   The first respondents, if that was thought appropriate.

HAYNE J:   It would be as well to have a proper contradictor ensured, would it not?

MR BURMESTER:   Yes, your Honour, we accept that and recognise the matters of importance.

GUMMOW J:   Thank you, Mr Burmester.  Yes, Mr Solomon.  Well you have heard what has been said; is there anything you want to say in response to that?

MR SOLOMON:   Only on the question of the form of the costs order.  Your Honours will no doubt be aware of both majority and minority judgments in the decision in Oshlack earlier this year, having recognised and endorsed the practice of conditioning a grant of special leave on the payment of the respondent’s costs.  The only question is the basis of that order and, in my submission, the order ought to be for indemnity costs in the usual form, which is to indemnify the first respondent except to the extent that costs are unnecessary or unreasonable.  If the principle behind such an order is that a party fighting a matter in Canberra, wanting to use senior counsel in the eastern States to argue a matter of serious importance, as we will be doing, really the only question ought to be whether any part of those costs are unnecessary or unreasonable and otherwise there ought to be indemnity.

GUMMOW J:   The Acting Solicitor-General does not lurk in the eastern States; he lurks in the National Capital.

MR SOLOMON:   Yes, but I do not ‑ ‑ ‑

GUMMOW J:   It is not a question of the Attorney choosing to use someone who is found in the eastern States.

MR SOLOMON:   No, it is the party being indemnified I am talking about, namely my clients, who happen to be here and find themselves having to argue a matter which, in a number of respects, is academic.  It raises new issues which are brought in this special leave application which were not argued before the Full Federal Court and the matter could have been removed.

GUMMOW J:   Yes, it could have been removed, which is not a factor which immediately assists you.  You seek indemnity costs, is that what it comes to?

MR SOLOMON:   Yes; in the usual form, that the taxing officer will not allow anything unnecessary or unreasonable, but subject to that, the order for costs should be such that the first respondent is indemnified.

GUMMOW J:   Yes, very well, I will see what the Acting Solicitor‑General says about that.

MR BURMESTER:   Your Honours, my instructions do not extend that far; we contend that it should be party/party costs in the normal course.

GUMMOW J:   The Court is of the view that it would be sufficient to attach a condition for party/party costs in the ordinary way, Mr Solomon.

MR SOLOMON:   Yes, if it please, your Honours.

GUMMOW J:   Now how long would this case take to argue, Mr Burmester?  Do you think a day?

MR BURMESTER:   Your Honour, at this stage I would say a day; I do not expect there to be lots of interveners from other States.

GUMMOW J:   No.

MR BURMESTER:   It seems to be essentially a Commonwealth constitutional issue.

GUMMOW J:   Yes.  The Registry will take note of that in fixing the calendar.

MR BURMESTER:   Thank you, your Honour.

GUMMOW J:   Upon the term that the applicant will pay the costs of the first respondent of the appeal in any event, there will be a grant of special leave in this matter, and the costs of the application will be costs in the appeal.

We will adjourn shortly to reconstitute.

AT 11.04 AM THE MATTER WAS CONCLUDED