Bennett & Ors v Commonwealth of Australia

[2006] HCATrans 278

[2006] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S111 of 2006

B e t w e e n -

GEOFFREY JAMES BENNETT

First Plaintiff

JOHN EDGAR CHRISTIAN

Second Plaintiff

BRUCE STANLEY WALKER

Third Plaintiff

ANN MITCHELL WALKER

Fourth Plaintiff

RICHARD AARON KLEINER

Fifth Plaintiff

ADMINISTRATION OF NORFOLK ISLAND

Sixth Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Summons for directions

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 2 JUNE 2006, AT 10.02 AM

Copyright in the High Court of Australia

__________________

MR G.R. KENNETT:   May it please the Court, I appear for the plaintiffs.  (instructed by Wright Stell Lawyers)

MR H.C. BURMESTER, QC:   If it please the Court, I appear with my learned friend, MS K.L. EASTMAN, for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   What do you want me to do in this, Mr Kennett?

MR KENNETT:   Your Honour, we would ask you to make orders in the terms of the summons for directions which sets out a process that would lead to, one way or another, the stating of a case for the Full Court.  We would propose, at least initially, that the parties confer with a view to agreeing on a special case under rule 27.08 but if that does not bear fruit we would come back for further directions and one possibility might be of a stating of a case under section 18.

HIS HONOUR:   Yes.  What is the attitude of the Commonwealth to it?

MR BURMESTER:   Your Honour, we are happy to have an attempt to agree on a case stated.

HIS HONOUR:   Yes.  That seems a sensible course.

MR BURMESTER:   We think for the moment, if there are no factual disputes, then it seems appropriate to leave the case in this Court.

HIS HONOUR:   I think so, yes.

MR BURMESTER:   But we want to reserve our position as to how we respond by perhaps seeing a draft case, seeing what factual material is put in it, what the particular questions are.  We would not necessarily wish the questions to take the form in the draft orders.  We might want to alter those.  In particular, we think there is really only one issue; that is whether the 2004 Act is invalid.

HIS HONOUR:   That is what occurred to me, that that was really the issue that the Court would focus on, whether the Act was valid.

MR BURMESTER:   Yes, and the rest is, in a sense, arguments or steps along the way that support particular conclusions in relation to the Act’s validity.  So our proposal was that the plaintiff prepare a draft special case for consideration and that the defendant then respond within 21 days either by indicating its agreement or demurring or its reaction and the matter could then come back for further directions.  So it really will depend on seeing what is in the plaintiffs’ draft, I think, and the Commonwealth then deciding how best to proceed with it.

HIS HONOUR:   Yes.  All of that seems very sensible.  What do you say, Mr Kennett?

MR KENNETT:   Your Honour, I have no difficulty with my friend having 21 days rather than 14, as set out in the draft orders.  As to the form of questions, I understand the force of what my learned friend says.  We would wish to put to the Court that (a) and (b) are important matters and necessary preliminaries, but for the moment I would say simply that that is a debate we can have.

HIS HONOUR:   I am very conscious of the importance of the matters and of the sensitivity, in one sense, of the issues that you are seeking to bring to the Court, but as a matter of law it would seem, at least at the moment, to me that the only legal question is whether the 2004 Act is a valid law of the Commonwealth and the other matters would certainly be matters of argument and persuasion and would be given attention in addressing that issue.  That is just a preliminary conclusion of my own and it may not be the conclusion of the Justice before whom the matter ultimately comes when it comes back. 

Can I ask, just as a matter of interest, I did read the papers because I became interested in them and I started to look at them.  Did the Commonwealth consult the people of Norfolk Island before the 2004 Act was enacted?  Was there a process of consideration?  This was put in mind by Mr Glynn’s statement on the Norfolk Island Bill 1913 when he said that one of the successes of British administration had been closely consulting people who were affected by decisions, and I just wondered if we have proved as successful in that respect.  He finishes up by saying:

The system has been a success elsewhere, and there is no reason why Australia should not make it an equal success in the case of Norfolk Island.

I just wondered if we had attempted to do that.

MR KENNETT:   Your Honour, I would be surprised if there had not been some form of consultation but I do not have any specific information to hand about it.

HIS HONOUR:   It is an interesting matter.  I do not think it will go elsewhere.  I think we will deal with this ourselves.  I note that this is also the desire of the Commonwealth at the moment, depending on there being no factual controversies.

All I would be inclined to do at this stage is to direct that the plaintiffs prepare a draft special case within 21 days; that the Commonwealth have 21 days thereafter to prepare its response; and that the matter then be listed before a Justice of the Court for consideration of the draft special case, if prepared, and otherwise for such orders as may then seem appropriate in the light of the developments.  The costs of the proceedings before the Court today will be costs in the matter.

MR KENNETT:   I am content with all of that, your Honour.

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   If it is possible, through a concentration of minds and effort, to get that timetable more expeditiously concluded and the special case, if it proves possible, to have it completed more quickly, then I would give leave to the parties to approach the Registry to bring the matter back before a Justice earlier so that procedural orders can be resolved quickly.  I will now adjourn the Court sine die.

AT 10.09 AM THE MATTER WAS ADJOURNED