Attorney-General (WA) & Anor v Marquet

[2003] HCATrans 646

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  Nos P114 and P115 of 2002

B e t w e e n -

ATTORNEY‑GENERAL FOR WESTERN AUSTRALIA

First Applicant

STATE OF WESTERN AUSTRALIA

Second Applicant

and

LAURENCE BERNHARD MARQUET (Clerk of the Parliaments of Western Australia)

Respondent

Applications for special leave to appeal

GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 APRIL 2003, AT 9.32 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear for the applicants led by MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia, and with MR R.M. MITCHELL.  (instructed by Crown Solicitor for the State of Western Australia)

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR B. DHARMANANDA for the following persons:  the Liberal Party of Australia (WA Division) Incorporated, the National Party of Australia (WA) Incorporated, the Pastoralists and Graziers Association of Western Australia (Incorporated), the Western Australian Farmers Federation (Inc), One Nation (Western Australian Division) Incorporated and Judith Ann Hebiton, all of whom are together applicants for leave to appear amici curiae.  (instructed by Mallesons Stephen Jaques)

GUMMOW J:   Yes, thank you, Mr Gageler.  The Court holds a certificate from the Deputy Registrar that in each of these matters the respondent, the Clerk of the Parliaments of Western Australia, has entered an appearance abiding the decision of the Court save as to costs.  There is also an application made in writing with no oral argument by Mr Ludlow seeking leave to appear, which we will raise with you later.  Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, the application concerns centrally ‑ ‑ ‑

GUMMOW J:   Before we come to that, is there any objection to granting the leave Mr Gageler seeks?

MR JACKSON:   No, your Honour, we do not object to that.  His clients appeared as amici curiae at first instance.

GUMMOW J:   Yes.  You have that leave, Mr Gageler, on terms that the structure of your appearance remains as it is.  In other words, we do not want any splintering with a multiplicity of representation on your side.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, the application concerns centrally section 13 of the Electoral Distribution Act 1947 (WA). The application as such involves three questions. A fourth, namely the effect of prorogation of the Parliament is raised by the submissions of my learned friend, Mr Gageler, and may I come back to that?

GUMMOW J:   Yes.  Can we ask you, Mr Jackson, a practical matter really:  are there fixed terms in Western Australia?

MR JACKSON:   Your Honours, there is a fixed term of four years for the Upper House and, to put it shortly, there was an affidavit, which perhaps I could give your Honours, which was filed on the application for expedition by a Lynley Margaret Auld which sets out the position.  If I could put it shortly, your Honours, one sees from the last few paragraphs of it – if I could go to page 6 – Ms Auld is the electoral commissioner – your Honours will see paragraphs 15 and 16, the effect of which is, in the last sentence of paragraph 15, that there would need to be a proclamation of the Electoral Amendment Bill:

between May 2003 and April 2004 to allow for a conjoint general election –

Your Honours, as a practical matter, if this matter were to proceed either by the whole special leave application being referred ‑ ‑ ‑

GUMMOW J:   That is what we have in mind at the moment.

MR JACKSON:   ‑ ‑ ‑ yes, your Honour – then the case would, one suspects, need to be decided either before the end of this year, I suppose, or early next year.

GUMMOW J:   Yes, thank you.  What is your attitude to the other application for amicus curiae ‑ ‑ ‑

MR JACKSON:   Mr Ludlow?

GAUDRON J:   Yes.

MR JACKSON:   Your Honour, that, in our submission, is a matter really dealt with by way of a better course by the Full Court, if the matter were to

proceed before it.  The submissions that Mr Ludlow is making are, with respect, in some respects elusive, and I say that recognising he is not here to make them orally and ‑ ‑ ‑

GUMMOW J:   What was his standing, as you understand it, in the Full Court in Western Australia?  Did he appear?

MR JACKSON:   I am sorry, your Honour.

GUMMOW J:   Was he amicus there or he was refused?

MR JACKSON:   He sought to but was refused, your Honour.  That is why we would say the better course is for him to be dealt with by the Full Court if the matter were to go there.

GUMMOW J:   Yes, thank you, Mr Jackson.  What we would propose to do, Mr Jackson, is, having granted Mr Gageler his leave to appear on behalf of these amici curiae, to refer the application for special leave into the Full Court which would deal also with the Ludlow application.

MR JACKSON:   Yes, your Honour, thank you.

GUMMOW J:   The parties should be prepared to deal with the matter in the Full Court as on a full appeal obviously enough.  Is there anything you want to say, Mr Gageler?

MR GAGELER:   Yes.  Your Honour will have seen from paragraph 2 of our written submissions that we seek a condition of such an order that we be ‑ ‑ ‑

GUMMOW J:   Yes, impoverishment.

MR GAGELER:   Pardon, your Honour?

GUMMOW J:   You are poor.

MR GAGELER:   Yes, and the other side is funded by the State.

GUMMOW J:   Yes.  That often happens.

MR GAGELER:   Yes, and it often happens, your Honour, that a condition of the grant of special leave is that the appellant pay the respondent’s costs in any event.  The reason underlying that, of course, is if the matter is important enough to go before a Full Court of this Court, it is important enough to have a properly‑funded contradictor, and that is this case.  I could take your Honour to the evidence, but your Honour will see that ‑ ‑ ‑

GUMMOW J:   We have read that.

MR GAGELER:   Yes.  We are forced to raise money by personal donations and raffles and the other side is funded by State coffers.

GUMMOW J:   Yes.  Yes, Mr Jackson.

MR JACKSON:   Your Honour, that is, of course, the way political parties so commonly operate and tears course down one’s face almost listening to the list as my learned friend read them out.  But could we just say it is, of course, in the end a matter for the Court, but the interests that he is representing are interests, one might have thought, which well might have chosen to have become defendants in the proceedings in the Supreme Court.  No doubt considerations of potential liability to an order for costs militated against the adoption of that course.

As one can see, your Honours – and I do not want to go to the detail of the evidence – from the affidavit of Mr Barron‑Sullivan, these are quite substantial organisations and if one goes simply to paragraph 46 ‑ ‑ ‑

GUMMOW J:   Yes.  We will not make any order on this matter at the moment, Mr Jackson.  Mr Gageler can renew that submission in the Full Court if need be.

MR GAGELER:   All I can say is if I am there, yes, your Honour.

GUMMOW J:   Yes, I understand that.  We now have the advantage of your very well‑thought‑out written submissions.

CALLINAN J:   That is not to say that they could not be supplemented by good oral submissions on the day, Mr Gageler.

GUMMOW J:   What would be the volume of the appeal books if one were to treat ourselves as dealing with appeal books?  Anything more than what is already here?

MR JACKSON:   Not significantly, your Honour.  It may well be, for example, in relation to an issue such as the prorogation issue that is sought to be raised, that there would be materials that we would seek to put before the Court, or both sides would seek to put before the Court, but the actual appeal books as such, your Honour, not significantly larger, I should think, than the one your Honours have.

CALLINAN J:   Yes.  That would not really be evidentiary material.

MR JACKSON:   No, your Honour.  It would be just material in support of submissions.

GUMMOW J:   Yes.  There might be some utility in listing the matter for directions before a single Justice after you have a hearing date to make sure the record is in order.  We will refer the application for special leave into an enlarged Bench to be prepared on the basis of a full argument.  We also refer in the application for leave to appear by Mr Ludlow.  We defer for consideration by the Full Court Mr Gageler’s submissions respecting the costs position.  The matter will be listed before a single Justice on a date notified by the Registrar after the allocation of a hearing date.  It would take one day plus?

MR JACKSON:   Yes, your Honour.

GUMMOW J:   Yes, thank you.  Is there anything else at the moment?  I do not think so.  We will take a short adjournment.

AT 9.42 AM THE MATTERS WERE CONCLUDED