Capital Duplicators Pty Ltd & Anor v Australian Capital Territory

[1993] HCATrans 85

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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 LUHAZE ACT PTY LTD

Plaintiffs

and

AUSTRALIAN CAPITAL TERRITORY

and COMMISSIONER FOR

AUSTRALIAN CAPITAL TERRITORY

REVENUE

Defendants

Directions Hearing

MASON CJ

(In Chambers)

Capital(3) 1 23/3/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 MARCH 1993, AT 10.15 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friend, MR R. REFSHAUGE, for the

plaintiffs. (instructed by MacPhillamy Cummins &

Gibson)

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

defendants who are the applicants on the motion for

an order today.	(instructed by the ACT Government
Solicitor)

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

If Your Honour pleases, I appear with my learned

friend, MS L.E. GLASSON, for the Attorney-General

of the Commonwealth intervening. (instructed by

the Australian Government Solicitor)

It might assist Your Honour if I indicate that

the Solicitors-General, as it happened, met
yesterday and there seems to be a general view that

all States will intervene, Your Honour, and the

Territory will probably intervene by associating

itself with one of the other interveners.

HIS HONOUR:  Thank you, Mr Solicitor. Yes, Mr Katz.

MR KATZ: Your Honour, I understand that the matter.is before

the Court today for the purpose of settling finally
the questions to be determined on 20 April. There

is a notice of motion which contains the questions

which were sought to be propounded by the

defendants. I have just been handed by my learned

friend, Mr Bennett, a copy of a different set of

proposed questions and no doubt he will hand to Your Honour a copy. If he does so, I will have

something very brief to say about his form of

questions. I have no difficulty with them, except

in one tiny mechanical respect.

HIS HONOUR:  Have you shown the form of questions to the

Solicitor as well as to Mr Katz?

MR BENNETT: Yes, Your Honour, in the last minute or two.
HIS HONOUR:	What is his reaction to your form of questions?
MR BENNETT:	He has not conveyed one.
MR GRIFFITH:	Your Honour, I had not got to page 3.
HIS HONOUR:	The case is much more complicated than I had

thought it was, Mr Bennett.

MR BENNETT: Perhaps I might hand to Your Honour an outline

of proposed submissions which indicates what we

anticipate to be the arguments we will be putting

Capital(3) 2 23/3/93

and the proposed questions which relate to them.	I
have two copies for Your Honour.

HIS HONOUR:  Thank you. It is not as complex as I thought,

Mr Bennett. There are only three questions.

MR BENNETT:	Yes.
HIS HONOUR:	From what the Solicitor said, I thought you had

three pages of questions.

MR BENNETT:  No, Your Honour. The third question is

unlikely to take more than a couple of minutes.	I
do not think there is any real issue as to what
would fall if there was invalidity under either 1
or 2.	The second question is a very short question

which, while it does not involve the same

constitutional importance as the other questions,

is one which arises - the relationship is this:

the second question really arises if the Court says

the reason why this is not an excise is that it is

really a censorship Act and then that argument

assumes greater prominence. That is the reason we

seek to have it heard at the same time, although it

is a very short argument.

Paragraph 8, of course, requires leave which

will be sought on the day.

HIS HONOUR:  Are you going to spell out ground 10, that is

paragraph 10 of your argument?

MR BENNETT:  I can do so very briefly. The argument is that

if one imposes different controls on published

materials by reference to their degree of

obscenity, one is classifying them even if one is

adopting a categorization done by someone else; it

is a short as that.

HIS HONOUR:  Mr Katz, what was your objection to these

questions?

MR KATZ:  Not an objection, Your Honour, but I think

properly framed the second question should ask

whether or not any provisions of the Act are

invalid as being a law with respect to a

classification of materials. In a sense, that is

against my position, but I think in fairness that is the way in which the question ought be framed.

MR BENNETT:	I accept that.
HIS HONOUR:	You would accept that suggestion, Mr Bennett?
MR BENNETT:	Yes, Your Honour.
Capital(3)	23/3/93
MR KATZ:	But, Your Honour, that was the only matter that

occurred to me - - -

HIS HONOUR:	You might give me those words again.
MR KATZ:	In the third line of question 2, as being a law

with respect to "classification.

HIS HONOUR:	Mr Solicitor.
MR GRIFFITH:	Our only comment would be that in question 1

the expression "in any respect" would seem to be

otiose.

HIS HONOUR:  Which are the words you say are otiose?

MR GRIFFITH: "In any respect".

HIS HONOUR:  End of third line, beginning of fourth line?

MR GRIFFITH: Yes, Your Honour.

HIS HONOUR: That is probably right, is it not, Mr Bennett?

MR BENNETT:  We thought about that. The only reason for

leaving them in was that on the view expressed by

Justices Toohey and Gaudron which turned upon an

excise relating solely to goods manufactured in

Australia, there may be a question of severability

within the same words. On one view of it, one

might draw a distinction between the two categories

and, if that were so, those words would be

relevant. That was the reason we left them there.

HIS HONOUR:  They do not do any harm, and I am prepared, I

think, to wear the criticism that I am responsible

for stating a question that involves some

unnecessary language in it.

MR BENNETT: If Your Honour pleases.

HIS HONOUR:  So I am prepared to state the questions in the

form proposed, subject to the amendment in

question 2 of the insertion of the words "law with respect to a" after "being a" in the third line of

that question.

MR BENNETT: If Your Honour pleases.

HIS HONOUR:  Now, what about the filing and serving of

comprehensive written submissions? Is this a case

in which advantage is to be gained from that

procedure?

MR BENNETT:  Probably not, Your Honour. We have provided an

outline and I would not expect that there would be

Capital(3) 4 23/3/93

an significant departure from that between now and

then.

HIS HONOUR:  Normally I would direct the filing of

comprehensive written submissions but it did seem

to me that in this case the ground has been, as it

were, well travelled before and therefore I

wondered whether any advantage was to be obtained.

What do you say, Mr Katz, Mr Solicitor?

MR GRIFFITH:  Your Honour, I think the matter that most

moves the Solicitors, if I can speak for all of

them, Your Honour, is the possibilities as to at

what point it might be submitted that Dennis Hotels

be reopened. It seems to be coming here rather

late in the argument.

HIS HONOUR:  I would have little doubt, although it appears

to be coming here a little late in the argument,
that it is a submission that is going to be made.

You are concerned about the actual progress of the hearing before the Full Court.

MR GRIFFITH:  Your Honour, I think the approach of the

Solicitors is really they regard that as a

threshold issue, as it were, in Philip Morris and

they will probably be preparing on that basis, that

that is the up-front issue, before one can settle

down the rest of the argument. Of course, it is

not possible to get an indication as to how the

matter might go on the day, as to whether it is any

relevance to know in more detail as to how it is

put by my learned friend, Mr Bennett, I am not too

sure.

HIS HONOUR:  Can you give any illumination on that question?

I do not think the Solicitor really wants to know

from you what the argument is going to be in

support of an application for reconsideration, but

he would like to know, as it were, the order in

which the argument is going to be presented.

MR BENNETT:  Your Honour, I suppose in point of order I had

proposed to put it in this order simply because the

reopening of Dennis Hotels does not arise - - -

HIS HONOUR: Logically, on the way you -

MR BENNETT: Logically, if one has a majority on the other

submissions. The whole problem of putting the

submissions in this way is that it may arise on the

views taken by some of the Justices and not on the
views taken by others.

HIS HONOUR:  It does not seem to me you are going to get

much elucidation in relation to that during the

course of argument.

Capital(3)	23/3/93
MR BENNETT:	Oh no, I am not, Your Honour.
HIS HONOUR:	The likelihood is, unless the Court takes a

Dennis

mind-set early on against a reopening of the umbrella of reservation.

MR BENNETT:  Yes. In a sense, if Dennis Hotels and Philip

Morris stand, it is a very short case because the

tax is almost identical to that in the Philip

Morris case, with the exception that it is a

different industry. So really the submissions

which are made there, perhaps spelt out by one or

two extra sentences, are fairly clear. In relation to Your Honour and Justice Deane, we would say that there was the statement that it should not be

extended to other industries. It squarely fits

within what was said by Justice Brennan and

Justice McHugh. It does not fit within what was

said by Justice Dawson and, subject to a very short

argument, one provision would be invalid and the

others would not under the view taken by

Justices Toohey and Gaudron and really, there would

not be a lot of argument on that. But one needs to

spell that out, I suppose, before one shows why one

seeks to have the reopening take place.

The major changed circumstance is the

divergent views expressed by this Court in Philip

Morris itself.

HIS HONOUR:  Yes. I think that is all we can do,

Mr Solicitor.

MR GRIFFITH: If Your Honour pleases.

MR BENNETT: 

Your Honour, one thing that would assist, but I

am sure there would be difficulty with this, is if
my learned friend, the learned Solicitor for the

Commonwealth, could provide us with copies of the

submissions which were made in Philip Morris.

HIS HONOUR:  I am sure he could do that. I do not know

whether it is going to assist anyone.

MR GRIFFITH:  I think I know what he has in mind,

Your Honour.

HIS HONOUR:  And I am not reflecting on the quality of the

submissions.

MR GRIFFITH:  Your Honour, there were written submissions

from various of the interveners there and there is

no problem in having recourse to them.

HIS HONOUR:  Yes, if you would do that.

Capital(3) 6 23/3/93

MR GRIFFITH:	We will give them to both sides, Your Honour.
MR BENNETT:	The only other matter, Your Honour, concerns

the length of the proceedings. It seems to us

that - it is very hard to estimate because one does

not know, of course, how many Solicitors are going

to address the Court and at what length, but it may

be that the matter will go into the third day. The

following matter which is set down for the third

day is a matter which should not take very long.

HIS HONOUR:  Yes, I will bear that in mind. There is one

thing that I did want to say to the Solicitor,

which he can convey back to one of these strange

meetings of his colleagues, that I do hope that an effort will be made by the Solicitors to break the

argument up. In recent cases there has been a

regrettable tendency on the part of the interveners

each to cover some ground that has been covered by

counsel who have previously addressed the Court.

So that it would be of very considerable assistance

if each intervener could take an allocated and

separate part of the argument.

MR GRIFFITH:  Your Honour's remarks really in this case will

be directed to the States, because the Commonwealth

would seem to be standing alone, but I could tell

Your Honour that the Solicitors have arranged to

meet in Sydney on 6 April for that very purpose and

they are conscious of the desirability of that

course.

HIS HONOUR:  I appreciate that. Mr Bennett, it is difficult

to estimate how long a case is going to go but I

will bear in mind what you say. The Court will

allocate two days for it and I will bear in mind

that it is possible that it might go into a third

day and that there will be some time on the third

day. Do you agree with that estimate, by the way,

Mr Solicitor?

MR GRIFFITH:

It really does get to the point that one has

to expect to reargue all doctrine on the case, so

that would seem likely. I think we would feel, and

I do not know whether the States would, the

Commonwealth would feel that it might abridge

consideration if at least we, and if the States

wish to do it, they filed a summary at least of

their contentions a day or two before.

HIS HONOUR:	I should make it clear that each party is at liberty to file, and if it does file to serve,
copies of such written materials, whether it be by
way of outline or whether it be more substantial
than that, and that from the Court's point of view, generally speaking, that would be of some
assistance.
Capital(3)	23/3/93
MR GRIFFITH:	Your Honour, we would certainly expect, on the

reopening issue, we could do that so that the

submission more or less .... on that. On the other

issue, Your Honour, we feel it would be useful, if

there is a divergent view between the State and the

Commonwealth, we will certainly be prepared to do

it and I will suggest to the States perhaps they do

as well, Your Honour, to mark out their territory,

as it were.

HIS HONOUR:  Yes. Very well. Mr Katz, do you wish to say

anything on those procedural matters?

MR KATZ:  No, tour Honour.

HIS HONOUR:  Very well. I shall reserve three questions as

amended in the document handed up by Mr Bennett

which I shall initial and place with the papers.	I
will reserve those questions for the consideration
of the Full Court.

I suppose I should order that the costs of

this application be costs in the questions

reserved.

Do you need any certificate for senior counsel

or not?

MR BENNETT:  Yes, I do, Your Honour. I seek that.

HIS HONOUR:  I certify for senior counsel.

MR BENNETT: If Your Honour pleases.

AT 10.32 AM THE MATTER WAS ADJOURNED SINE DIE

Capital(3) 23/3/93