Castlemaine Tooheys Limited & Ors v The State of South Australia

[1989] HCATrans 50

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IN THE HIGH COURT OF AUSTRALIA

Registry No C14 of 1986

B e t w e e n -

CASTLEMAINE TOOHEYS LIMITED

& ORS

Plaintiffs

and

THE STATE OF SOUTH AUSTRALIA

Defendant

Directions hearing Stated case

DEANE J

(In Chambers)

Castlemaine

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 15 MARCH 1989, AT 9.30 AM

(Continued from 15/12/88)

Copyright in the High Court of Australia

C3Tl/l/PLC 14 15/3/89

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

with my learned friend, MR A. ROBERTSON, for the plaintiffs. (instructed by Allen Allen &

Hemsley)

MR J.J. DOYLE, QC: If the Court pleases, I appear with my learned friend, MR M.J.M. QUINLAN, for the defendant. (instructed by the Crown Solicitor

for South Australia)

HIS HONOUR:	Yes, Mr Bennett.
MR BENNETT:	Your Honour, the parties have agreed on the

form of a statement of agreed facts. There

is one minor complication and that is that if

a case is stated under section 18 of the JUDICIARY

ACT, there may be a problem in relation to the

drawing of inferences and this is a case where

although the facts are fairly lengthy it may

be that inferences will need to be drawn.

I note that under Order 35 there can be

a special case stated by Your Honour under which

the Court has express power under rule 1(4)

to draw inferences and that appears both to
my learned friend and myself to be a more convenient
method of dealing with the matter than that

which the parties have to this point adopted.

It is Order 35 rule 1(4).

HIS HONOUR:	You agree with that, do you, Mr Solicitor?
MR DOYLE:	Yes, I do, Your Honour.
MR BENNETT:	The procedural aspects of that involve

Your Honour making an order under Order 35

rule 2(1) that the questions of law in the
draft order Your Honours has be raised for the

opinion of the Court by a special case in the

form of a statement of agreed facts. It will

then be necessary for the parties to retype

the documents complying with rule 3. That should

be able to be done within 48 hours without any

difficulty and signed by counsel or solicitors

and then the matter can proceed accordingly.

HIS HONOUR:  I am just wondering what 2(1) means,

Mr Bennett? On one approach it would not be

applicable here in that when the parties agree
the facts it is not a matter of question of
law being decided before any evidence is given

or any question or issue of fact determined.

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Castlemaine

:t1R BENNETT:  Well. it is in this sense, Your Honour. that

the substance of the rule, we would submit, does

not depend on the quantity of fact remaining to be

determined but on a procedure that one starts with

the stated case in the opinion of law. If that

decides the case without any further facts, there

would seem no reason why that could not be applied.

The word "before" any evidence is given, does not

mean the evidence has subsequently to be given.

It is before any evidence is given, the word "any"

implying some or none.

HIS HONOUR:  Yes. What is the relationship between I and 2

here?

:t1R BENNETT:  It may be that they are alternatives. I must

say, I had assumed that rule 2 was the procedure for

implementing rule 1 but it may be, as Your Honour

suggests by that question, that-although it would

seem unlikely that the parties are able by

consent - - -

HIS HONOUR:	To land the Full Court with something?
:t1R BENNETT:	Yes.
HIS HONOUR:	Are there any likely inferences?
:t1R BENNETT:	Yes, Your Honour.
HIS HONOUR:	There are?
MR BENNETT:	Yes.  I can show Your Honour exactly how that

arises.

HIS HONOUR:	No, if you say so, I am content with that.
MR BENNETT:	I am just concerned with this, Your Honour,

that if we go in the ordinary course, there is a

controversy as to whether under section 18, the

Court can draw inferences. There are some

suggestions that it cannot and rather than have

that unnecessary argument it seemed to us
easier the other way.	I note in the CCH there is

a reference to the decision of Mr Justice Gibbs,

as he then was, in BRISBANE CITY COUNCIL V

VALUER GENERAL, where His Honour suggested that in

an ordinary case stated one could not draw

inferences.

HIS HONOUR:  I have difficulty with this Order 35, I must

confess.

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Castlemaine

MR BENNETT:  We submit, I suppose, it would be theoretically

open to the parties to decide further facts later

if there were some other relevant fact but, we

would submit, before any fact is determined

simply means without any facts having been determined,

leaving it to be decided later, whether any, and

if so, what facts would be determined subsequently.

It does not dictate that there be an intention

to decide further facts.

HIS HONOUR: My difficulty is reading it. It is very hard

to resist the view that rule 1 does entitle
the parties to simply concur in stating the questions

of law.

MR BENNETT:	Yes. Well, I suppose that is so.
HIS HONOUR:	You go to 1(4), which is on the basis that the

matter has got before the Court.

MR BENNETT:	Yes.
HIS HONOUR:	On that approach 2 seems to be, as it were,

a view formed by the judge himself.

MR BENNETT:  Yes. Rule 5 supports what Your Honour puts

to me. It would rather suggest two alternative

methods:

A party may enter a special case ..... before the Court or the Full Court in

accordance with the agreement of the

parties or the order of ..... a Justice.

HIS HONOUR:  The problem I have, to spell it out, is if

we come to 2 I will be prepared to act on the
ordinary basis by the consent of the parties

but I always have great difficulty in accepting

that it is convenient that a section 92 case

be determined on agreed facts.	I personally think
it is much more convenient that somebody find the

facts.

MR BENNETT:  Well, it will be a lengthy trial in this case

and, of course, there is urgency from the parties'

point of view.

HIS HONOUR:  Yes. Well, it is no doubt convenient from the

parties' point of view.	What is your view about
all this, Mr Solicitor,	in terms of the relation
between 1 and 2?

MR DOYLE:  I had actually seen 1 and 2 as alternatives,

Your Honour, but I have really read 2 as enabling

the Judge to, as it were, take the lead in a situation

where the parties seem to be being a bit slow. Had

we thought of this point earlier we probably would have,
proceeded tmder subrule (1), it really only occurred to us this

rrorning, in fact, arising out of a carm:mt Justice Brennan made

yesterday in relation to facts and I started to think about this aase

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Castlemaine

MR DOYLE (continuing):  So if Your]onour were hesitant, I suppose

that the matter could be adjourned and we could

simply proceed under subrule 1 . I cannot quite

remember what we did in the PORT MACDONNELL case;

I know that in that case I asked the Chief Justice

to bring the matter before the Court under Order 35

but I cannot now recall and, I do not know if the

Registrar can. whether we proceeded under subrule 1

or subrule 2 , I just cannot remember. Maybe the

order will not discriminate.	I know we were before
the Chief Justice; we had all the facts there.	I

told the Court that we might want to draw inferences

as to peace, order and good government and that is

why we wanted to proceed under Order 35.

HIS HONOUR: Well, the Registrar informs me that it came under

1 , which would really seem to indicate that I need

not make an order. Why do not we leave it on that

basis and the parties can proceed on the basis that

if it is necessary for me to make an order, I will

make it and, that having been said, if it becomes

necessary during the hearing for somebody to make

an order I would be favourably disposed to making

it even then. But reading it, it seems to me that

the parties themselves can deal with the special

case under 1 and that is the more appropriate

procedure here, if counsel agree with that.

MR DOYLE:	Yes, I accept that, Your Honour.
MR BENNETT:	That seems to be so.
MR DOYLE:	I think, Your Honour, it might be in the interests of the Court that we all keep quiet about the fact that the parties may be able to just put a matter straight
before the Full Court under Order 35 rule 1 . I can
imagine all sorts of litigants who would be interested
in using that.
HIS HONOUR:	Of course, the ultimate thing is, you have got to

get a hearing date, have you not?

MR DOYLE: True.

T4 HIS HONOUR: If you change your approach to this during the day,

there will be no problem sitting again.

MR DOYLE: Thank you.

MR BENNETT:  Thank you, Your Honour.

AT 9.42 AM THE MATTER WAS ADJOURNED SINE DIE

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Castlemaine