Capital Duplicators Pty Ltd & Anor v ACT

[1991] HCATrans 378

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IN THE HIGH COURT OF AUSTRALIA

Registry No CS of 1990

B e t w e e n -

CAPITAL DUPLICATORS PTY LTD

_and LUHAZ E ACT PTY LTD

Plaintiffs

and

AUSTRALIAN CAPITAL TERRITORY

and COMMISSIONER FOR AUSTRALIAN

CAPITAL TERRITORY REVENUE

Defendants

Directions hearing

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY. 18 DECEMBER 1991. AT 10.33 AM

Copyright in the High Court of Australia

Capital 1 18/12/91

MR R.C. REFSHAUGE:  May it please the Court, I appear for

the plaint'iffs~ (instructed by MacPhillamy Cummins

& Gibson)

MR L.S. KATZ: If Your Honour pleasesr I appear for the

defendants. (instructed by the ACT Government

Solicitor)

MR G. GRIFFITH, OC, Solicitor-General for the Commonwealth:

If Your Honour pleases, I appear with

MS s.c. KENNY, intervening for the Attorney-General

of the Commonwealth. (instructed by the Australian

Government Solicitor)

HIS HONOUR:	Yes, Mr Refshauge?
MR REFSHAUGE:	Your Honour, this matter has not yet been set

down, as I understand it, because of the width of

the issues that are raised in the case.

HIS HONOUR:	Yes.
MR REFSHAUGE:	My friends and I have dissected the issues

into two parts, and it might be convenient if I

hand up to Your Honour two questions that we say

are the issues that arise in the case and which

could conveniently be dealt with separately.

My position is that I have no instructions to

press the Court for the questions to be dealt with

separately but - - -

HIS HONOUR: That obviously seems a desirable course.

MR REFSHAUGE:  It does and I do not oppose that, and it

would clearly be sensible in terms of the Court's

resources because, as I understand it, it is

unlikely that there will be further intervention in

relation to the first question, question (a),

whereas, obviously, the States would have a

significant interest in the second question.

HIS HONOUR: Well, I might ask the Solicitor-General for the

Commonwealth. He communes with the other

Solicitors-General, so he would know.

MR GRIFFITH:  We communed last week, Your Honour. I think I

can speak on behalf of all the States by indicating

to Your Honour that it would be regarded as very

appropriate if the first question were dissected

and argued first.

HIS HONOUR:  Yes. Does it follow that the States are not

interested in the first question?

MR GRIFFITH:  Your Honour, probably the Northern Territory

is interested in the first question.

Capital 2 18/12/91

HIS HONOUR:  Yes, I realize the Northern Territory would be.

I happened to be speaking to the Solicitor-General

for the Northern Territory. I mentioned that this

was on. He .. P-vinced some interest in it.

MR GRIFFITH:  Your Honour, it may be that a State could have

an abstract interest but is not yet obvious and

perhaps it is unlikely that they would be agitated

enough to appear.

HIS HONOUR:  What is the estimate of time for argument on

the first question?

MR GRIFFITH:  Your Honour, we feel it could be done in a

day.

HIS HONOUR:  A day, yes. Do you agree with that,

Mr Refshauge?

MR REFSHAUGE:	Yes, Your Honour.
HIS HONOUR:	And, Mr Katz?
MR KATZ:	Well, subject to one thing that I wish to put to

Your Honour and that is this: it appears to me

that the plaintiffs cannot succeed on the first

question unless they persuade the Court to overrule

one of its own earlier decisions.

HIS HONOUR:  Yes, that is a common obstacle confronting

parties these days. Which is the particular

decision?

MR KATZ:  It is Nott Bros v Barkley, 36 CLR 20, and at

page 29 Mr Justice Isaacs for himself and two

others of the Court dealt with precisely the same

matter in principle, in my submission, as the

plaintiffs would seek to raise here and for that

reason it would be a case, in my submission, in

which the plaintiffs would need leave to reargue

the correctness of the Nott Bros case. That might

mean that full argument on the first question never

took place, depending on the outcome of the
application for leave to reargue the correctness of

the Nott Bros case.

HIS HONOUR: Yes. That is possible, although I must say the

machinery for application for leave to reconsider a

previous decision is, well, procedural, to say the

best, but there are many cases where you cannot

actually apply that machinery although this may

perhaps be one of them.

MR KATZ:  I did see in one of the cases that followed, Evda

Nominees, a reference to the Court proceeding by

way of receiving outlines of submissions.

Capital	18/12/91
HIS HONOUR:	Yes. But, of course, ~here is nothing I can do

about that. We will just have to wait and see what

the attitude of the Full Court is to the matter.

MR KATZ:	Yes.
HIS HONOUR:	Mr Refshauge, would it be possible for you to

present the arguments on the first question in
writing? By that I mean - I am not seeking to cut

you out from oral exposition at all but it did seem

to me it might be of advantage to the Court if they

could see, laid out in writing, what your arguments

are with a view to applying section 90 to Territory

legislation.

MR REFSHAUGE: Well, certainly, Your Honour, it would be

possible and I see no principal reason why that

should not be able to be done.

HIS HONOUR: Well, there is plenty of time. At the moment,

it is intended to list this on 3 March so that it

would not be imposing a great burden on your

constructive imagination to produce something in

writing, say, by the middle of February.

MR REFSHAUGE: Certainly, Your Honour.

HIS HONOUR:  And, Mr Katz, you might produce some rejoinder

to it. I mean, your rejoinder, for all I know, may

be much shorter than the argument that would be

presented in support of the proposition for which

Mr Refshauge is contending.

MR KATZ:	Yes, but I would certainly be happy to - - -
HIS HONOUR:	And you might do that, say, three or four days

before 3 March.

MR KATZ: If Your Honour pleases.

HIS HONOUR:  Do you want a precise day fixed for the filing

and serving of these written submissions?

MR KATZ:  I think it might avoid some difficulty afterwards,

Your Honour, if it were done.

HIS HONOUR:  I will direct, first of all, that question (a)

be set down for argument in the first instance on

its own and then I will direct that the plaintiff

file and serve written submissions in support of

his ~rgument on question (a) on or before Friday,

14 February, and that the respondent file and serve

his written argument in reply on or before Friday,

28 February.

MR KATZ: If Your Honour pleases.

Capital 4 18/12/91

MR REFSHAUGE: If the Court pleases.

HIS HONOUR:  Now, do the parties want me to make any formal

order, apart from the order I have already made,

directing that question (a) be set down for

argument first?

MR KATZ:	Not so far as I am concerned, Your Honour.
HIS HONOUR:	You do not want me to state a case or anything

of that kind?

MR REFSHAUGE:	No, Your Honour.
HIS HONOUR:	I mean, at the moment we have the demurrer and,

of course, the demurrer is set down for argument.

It will be listed. And then we have the

understanding that it is only question (a) that

will be argued on the terms of the demurrer.

MR GRIFFITH: Yes. Your Honour, I think we contemplated

that Your Honour is just stating a question by

reference under section 18 so that although the

pleading is before the Court, the issue before the

Court is the question. So, there is no problem

about just an order being made in the terms stated

by Your Honour.

Your Honour, as for question (b), that is

really a preliminary formulation and I think we all

feel that that can be put on one side and the

matter can be agitated if necessary after judgment

on question (a).

MASON CJ: Yes. Very well, the Court will now adjourn.

AT 10.41 AM THE MATTER WAS ADJOURNED SINE DIE

Capital 18/12/91