Attorney-General of the Commonwealth v Comcare & Anor

[2018] HCATrans 180

[2018] HCATrans 180

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C10 of 2018

B e t w e e n -

ATTORNEY-GENERAL OF THE COMMONWEALTH

Applicant

and

COMCARE

First Respondent

MICHAELA BANERJI

Second Respondent

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 12 SEPTEMBER 2018, AT 9.28 AM

Copyright in the High Court of Australia

MR D.P. O’DONOVAN:   May it please the Court, I appear for Comcare.  (instructed by Australian Government Solicitor)

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

MR R. MERKEL, QC:   If the Court pleases, I appear for the second respondent, Ms Banerji.  (instructed by Lander & Co)

HIS HONOUR:   Ms Watson, I have read the material and, of course, the removal is of right and it is unopposed and I note the directions that the parties have agreed to and they seem satisfactory.  They seem to be leading us towards or track towards a hearing early in the new year.  I am not in a position to make any promises but probably March is looking good.  As I say, I cannot make any promises about that but, for the convenience of counsel, that is looking where we hope to finish up as long as the timetable is observed.  Ms Watson, can I ask what is the state of play at the moment in relation to interventions?

MS WATSON:   Your Honour, my instructions are that we have been informed that the Attorney‑General for New South Wales intends to intervene and the Australian Human Rights Commission intends to seek leave to intervene and we have not been advised at this point whether any other Attorneys‑General have made a decision about intervention.

HIS HONOUR:   Do you have a view as to how long the hearing is likely to take, bearing in mind the possibility that there may be some interventions by other States?

MS WATSON:   I think around two days.

HIS HONOUR:   Two days?

MS WATSON:   Yes, your Honour.

HIS HONOUR:   Mr Merkel, what do you think?

MR MERKEL:   Your Honour, because it covers a number of issues and because of the interventions, it could be up to two days, one and a half might be a realistic estimate but because of the possibility of various parties intervening up to two days would probably be accurate.

HIS HONOUR:   Okay.  Mr O’Donovan, what do you think?

MR O’DONOVAN:   We would defer to the Attorney‑General’s assessment in relation to that matter.

HIS HONOUR:   All right.  Very well.  This application by the Attorney‑General for the Commonwealth is brought under section 40(1) of the Judiciary Act 1903 (Cth). Under that section the removal of a cause into this Court at the behest of the Attorney‑General is a matter of right. Accordingly, I order that the whole of the cause in proceeding number ACD28 of 2018, pending in the Federal Court of Australia, be removed into the High Court of Australia. In addition, I direct the parties to proceed in accordance with the directions contained in the consent document dated 11 September 2018 signed by the parties. I order that the costs of the parties today be costs in the cause. Is there anything else, Ms Watson?

MS WATSON:   No, not on my part, your Honour.

HIS HONOUR:   Mr Merkel?

MR MERKEL:   Your Honour, the only thing I should mention is we have not turned our mind to whether there should be a notice of contention.  Under the High Court Rules, a notice of contention would have to be filed within seven days of the notice of appeal and what we had proposed is to, if we do file a notice of contention, to do it within seven days of the amended notice of appeal which would take us to 24 September.  I only mention that, your Honour, because it was not covered in the consent directions.

HIS HONOUR:   Yes, I note what you say and you have that leave.  I do not see any need to alter consequentially the directions that the parties have consented to.

MR MERKEL:   Thank you, your Honour.

HIS HONOUR:   Mr O’Donovan, anything from your point of view?

MR O’DONOVAN:   No, nothing, your Honour.

HIS HONOUR:   Very well, adjourn the Court.

AT 9.33 AM THE MATTER WAS ADJOURNED