Attorney-General for State of Victoria v Andrews

[2006] HCATrans 159

[2006] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M83 of 2005

B e t w e e n -

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA

Appellant

and

KEVIN JAMES ANDREWS, MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS

First Respondent

BARRY LEAHY, LES TAYLOR, SHARELLE HERRINGTON, SIMON COCKER, BILL SCALES AO, LINDA ANNE LIPP, ROBIN STEWART‑CROMPTON, VICE ADMIRAL RUSS SHALDERS AO CSC, CHERYL VARDON, ELIZABETH PERCIVAL AM AND STEPHEN SOMOGYI, IN THEIR CAPACITY AS THE SAFETY, REHABILITATION AND COMPENSATION COMMISSION

Second Respondents

OPTUS ADMINISTRATION PTY LTD

Third Respondent

VICTORIAN WORKCOVER AUTHORITY

Fourth Respondent

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE AND BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 APRIL 2006, AT 12.01 PM

Copyright in the High Court of Australia

__________________

MR M.K. MOSHINSKY:   If your Honour pleases, I appear for the Attorney‑General for Victoria.  (instructed by Victorian Government Solicitor)

MR W. SOFRONOFF, QC, Solicitor‑General for the State of Queensland:   May it please the Court, I appear with my learned friend, MS K.S. COCHRANE, for the Attorney‑General of Queensland intervening.  (instructed by Crown Law)

MR D.I. STAR:   Your Honour, I appear on behalf of the first respondent, Kevin James Andrews, the Minister for Employment and Workplace Relations.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Do you not also appear for the Attorney for the Commonwealth who is intervening?

MR STAR:   Your Honour, just to clarify that, the Attorney‑General for the Commonwealth proposes to intervene in this proceeding and a letter to that effect has been sent to the Court and the other parties.  However, I am not instructed to appear today for the Commonwealth Attorney‑General.

HIS HONOUR:   Yes, I follow that.  Is there any appearance for the second respondent?

MR R.C. KNOWLES:   Yes, your Honour.  I appear for the second respondent.  (instructed by Phillips Fox)

MR P.J. HANKS, QC:   Your Honour, I appear for the fourth respondent with MS R.J. ORR.   (instructed by Corrs Chambers Westgarth)

HIS HONOUR:   Now, this matter is a cause removed into the Court by order made by the Chief Justice on 6 July 2005.  His Honour ordered that the removed cause be listed for directions on a date to be fixed, and that is today.  I have since mentioned the matter to the Chief Justice and the matter, subject to anything any of you have to say, will be listed for hearing on 1 August 2006 as a one‑day case.  Does that seem a satisfactory date?

MR MOSHINSKY:   That is satisfactory from our point of view, your Honour.

HIS HONOUR:   Yes.  What I propose as to the preparation of it follows broadly the outline of the draft most recently supplied, but I will just go through it and then tell me if there is any dissent.

1.The removed cause be referred to the Full Court for hearing, to be listed as a one‑day matter on 1 August 2006;

2.The rules that apply to appeals apply to the removed cause so far as they can be adapted;

3.Submissions by the appellant, the fourth respondent, the Attorney‑General for Queensland and any other Attorney‑General intervening in support of the appellant be filed and served not less than 28 days prior to the hearing of the appeal;

4.Submissions by the respondents (other than the fourth respondent), by the Attorney‑General for the Commonwealth and any other Attorney‑General intervening in support of those respondents be filed and served not less than 14 days prior to the hearing of the appeal;

5.Any submissions in reply by the appellant or fourth respondent be filed and served not less than seven days prior to the hearing of the appeal;

6.Costs will be costs in the removed cause.

Does anyone have anything to say to that?

MR MOSHINSKY:   We are content with that, your Honour.

HIS HONOUR:   Yes, thank you, Mr Moshinsky.  Mr Star?

MR STAR:   We are content with those orders, your Honour.

HIS HONOUR:   Mr Knowles?

MR KNOWLES:   Your Honour, we are content with those orders.  I am instructed to raise one minor incidental matter.  Should I raise that now or later on?

HIS HONOUR:   Yes, now.

MR KNOWLES: Perhaps if I just raise it briefly now. That is that in relation to the name of the second respondent, your Honour will be aware that the Safety, Rehabilitation and Compensation Commission comprises 11 people: a chairperson, a CEO and nine Commissioners. The name of the people comprising the Commission as in this proceeding’s title reflects the membership of the Commission as at 1 November 2004. Since that time the constitution of the Commission has changed. Some people are no longer involved with it who are named in the proceeding’s titles; others have joined it to replace those that are no longer involved.

It is my client’s position, your Honour, that there is no need to change the title of the party to reflect those changes, that this is an appeal obviously from Justice Selway’s decision.  The only relief that is sought by the appellant relates to the validity of the grant of the licence on 1 November 2004.  As such, all that could be achieved would be that the licence as granted be quashed.  There are no orders sought to compel the Commission to do anything further in future.  I also note that there is some possibility that the identity of Commissioners may also change in the future.

HIS HONOUR:   Yes.  Now, the Commission is not a corporate body, is it?

MR KNOWLES:   That is right, your Honour.

HIS HONOUR:   It is a statutory body, is it?

MR KNOWLES:   That is right, your Honour, but it has not been incorporated, yes.

HIS HONOUR: Well, is there any objection to describing the second respondent as the Members of the Safety, Rehabilitation and Compensation Commission?

MR KNOWLES:   No, your Honour.

HIS HONOUR:   Is that acceptable to everyone, or not objectionable?

MR MOSHINSKY:   Yes, your Honour.

HIS HONOUR:   Well, I will add:

7.The second respondent be identified as the Members of the Safety, Rehabilitation and Compensation Commission.

That will give it an ambulatory effect I hope.  Yes, Mr Hanks.

MR HANKS:   Your Honour was no doubt about to ask me whether we had any problems with the directions.

HIS HONOUR:   Yes.

MR HANKS:   Subject to our understanding that the days referred to are calendar days rather than working days, we have no difficulty, your Honour.

HIS HONOUR:   What do the Rules of the Court say about this?

MR HANKS:   The practice direction, where it refers to days, defines them as working days, clear working days, but we understood that the parties’ intention, and we assume the Court’s intention, is that the days specified here are calendar days.  Twenty‑eight would be otherwise somewhat difficult to calculate.

HIS HONOUR:   Yes.  Why do we not have a specific date and avoid this ridiculous squabble.  Now, what will order 3 read?  Someone can apply their brain to this.  Now we know the target is 1 August, what date do you want to go in order 3?

MR SOFRONOFF:   The 28 days would be 3 July, I think, your Honour.

HIS HONOUR:   Is that agreed?

MR HANKS:   No, your Honour.  We think it might be the 4th, but we may be wrong.  Yes, 4 July we think, your Honour, but that is precisely 28 days before 1 August.

HIS HONOUR:   Right, 4 July.  I am not going to debate this any longer.  What do we say for 4?  Order 3 will read 4 July.  What should 4 then say?

MR HANKS: 18 July and 25 July for No 5.

HIS HONOUR:   Thank you.  Anything else?

MR HANKS:   Thank you, your Honour.  Not from me, your Honour.

HIS HONOUR:   Mr Solicitor?

MR SOFRONOFF:   We are happy with the orders, your Honour.

HIS HONOUR:   Yes, thank you, Mr Solicitor.  Well, I will read it again:

1.The removed cause be referred to the Full Court for hearing, to be listed for one day on 1 August 2006;

2.The rules which apply to appeals apply to the removed cause so far as they can be adapted;

3.Submissions by the appellant, the fourth respondent, the Attorney‑General for Queensland and any other Attorney‑General intervening in support of the appellant be filed and served on or before 4 July 2006;

4.Submissions by the respondents (other than the fourth respondent), by the Attorney‑General for the Commonwealth and any other Attorney‑General intervening in support of those respondents be filed and served on or before 18 July 2006;

5.Any submissions in reply by the appellant or the fourth respondent be filed and served on or before 25 July 2006;

6.The second respondent be identified as the Members of the Safety, Rehabilitation and Compensation Commission in place of the present description; and

7.Costs be costs in the removed cause.

Is there anything else?

MR MOSHINSKY:   No, your Honour.

HIS HONOUR:   Very well.  I will now adjourn.

AT 12.12 PM THE MATTER WAS CONCLUDED