Barrow v Roberts & Ors

[2018] HCATrans 132

[2018] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M140 of 2017

B e t w e e n -

DAVID CHARLES BARROW

Plaintiff

and

MALCOLM ROBERTS

First Defendant

FIONA NASH

Second Defendant

NICHOLAS XENOPHON

Third Defendant

MATTHEW CANAVAN

Fourth Defendant

BARNABY JOYCE

Fifth Defendant

SCOTT LUDLAM

Sixth Defendant

LARISSA WATERS

Seventh Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY AND BRISBANE

ON WEDNESDAY, 11 JULY 2018, AT 9.34 AM

Copyright in the High Court of Australia

____________________

MR D.C. BARROW:   If it please the Court, I appear as the plaintiff and solicitor on the record.

MR A.N.P. McBETH:   Your Honour, I appear for the sixth and seventh defendants.  (instructed by Fitzgerald & Browne)

HER HONOUR:   Yes, Mr Barrow.

MR BARROW:   Am I not audible, your Honour?

HER HONOUR:   No, you are.

MR BARROW:   Right.  The parties have filed written submissions.

HER HONOUR:   Yes.  Do you wish to say anything more in relation to those written submissions?

MR BARROW:   A slight extra addition.  Firstly, just to clarify on the penalty amounts, the amount is clearly going to be a maximum of $200.00.  Whether that is to be spread over other proceedings I leave that in the hands of the Court to determine any apportionment amount.  On the issue of costs, it is my view that the plaintiff lawyers, including myself, ought not to be awarded costs and the basis of that argument is that ‑ ‑ ‑

HER HONOUR:   This is the consent order.  Is there anything different to the consent order?

MR BARROW:   No, but if your Honour would allow me to speak very briefly on the submission as to why and that is that there was dramatic change in 1975 with the Common Informers Act as to the quantum of penalties.  Proceedings brought since that time, particularly since the amount of $200.00, have been unindexed for the past 43 years.  Proceedings that are brought are uneconomic in that the penalties are less than the filing fee in most instances, your Honour.  The function served by the Common Informers Act is one of a public function and that is part of an accountability mechanism.

HER HONOUR:   I do not understand why I am having submissions on this if there is a consent order but ‑ ‑ ‑

MR BARROW:   I am almost finished, your Honour.  The Common Informers Act is not to be a vehicle for enrichment of citizens, your Honour.  Plaintiff lawyers ought to know that and plaintiff lawyers ought not to ride on that to receive ‑ ‑ ‑

HER HONOUR:   I am not – this has nothing to do with you, has it?  You have made a decision that you do not want your order as to costs.  This is not a public forum for you to make submissions about these matters, is it?

MR BARROW:   This is the reasoning behind why I consented to the draft minute of orders as to no costs, your Honour.

HER HONOUR:   I see.

MR BARROW:   So that is my submission.  Did you have something that you wanted to raise about my standing, your Honour?

HER HONOUR:   No, not at all.  Mr McBeth, do you wish to make anything in addition to your submissions?

MR McBETH:   Your Honour, the defendant’s position is that the consent orders should be made but because of section 3(3) of the Common Informers Act making those consent orders might have some impact on the other matter that is listed for today, being the Adler matter.  If your Honour wished to hear me on that point, I am happy to make some submissions about that.  Other than that we would simply ask for consent orders to be made.

HER HONOUR:   I have two questions in relation to this and this also affects Mr Barrow, so I will put them now, having heard what you have said.  The first is that Mr Barrow made a submission one moment ago which is contrary to the way in which the consent order has been proffered.  His submission was that it was up to a maximum of $200.00, as I

understood his submission.  That is not the consent order I have in front of me.  He talked about some aspect of apportionment which I do not quite understand.  That is the first question which you may want to discuss amongst yourselves or you may want to make submissions about.

The second matter is that having taken that into account, and I do not seek to say anything about that other than to raise it, because that is the first time I had heard of it and then did not understand that to be the position from either of your submissions that I had read, is the impact that has on the question you have just raised.

MR McBETH:   Yes.

HER HONOUR:   Do you want to have a discussion with Mr Barrow about that?

MR McBETH:   It might be convenient if we did that, your Honour, but in the first instance my understanding was the same as your Honour’s, that the consent orders mean what they say and there is no wriggle room there.  But if it is convenient I might perhaps have a quick word with Mr Barrow.

HER HONOUR:   All right.  Do you want me to leave the Bench?

MR McBETH:   It would be a matter of seconds, I think, your Honour.

HER HONOUR:   Thank you.

MR McBETH:   Mr Barrow tells me, your Honour, that he does not resile from the consent orders as drafted and so that would mean that the order would be for judgment in the amount of $200.00 for each matter and that there would be no order as to costs.

HER HONOUR:   Yes, thank you.  Have a seat, Mr McBeth.

HER HONOUR:   On 27 September 2017, the plaintiff filed a writ of summons and statement of claim, claiming relief pursuant to the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth). On 18 October 2017, the plaintiff filed written consents to the making of an order entering judgment for the plaintiff in each case in the sum of $200.00, signed respectively by the plaintiff and the sixth defendant, and by the plaintiff and the seventh defendant. The plaintiff, sixth and seventh defendants having agreed that the orders should be made I will make the orders.

It follows, of course, in the matter proceeding by agreement – that I express no view about whether some issue may or may not have been open to debate under section 3 of the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth). In relation to the sixth defendant I make the following order by consent:

1.Judgment be entered for the plaintiff against the sixth defendant in the sum of $200.00.

2.There be no order as to costs.

I publish that order.

In relation to the seventh defendant, I make the following order by consent:

1.Judgment be entered for the plaintiff against the seventh defendant in the sum of $200.00.

2.There be no order as to costs.

I publish that order.

You are excused, Mr Barrow.

AT 9.42 AM THE MATTER WAS CONCLUDED