Castlemaine Tooheys Limited & Ors v The State of South Australia

[1988] HCATrans 332

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl4 of 1986

B e t w e e n -

CASTLEMAINE TOOHEYS LIMITED

AND OTHERS

_Plaintiffs

and

THE STATE OF SOUTH AUSTRALIA

Defendant

Application for adjournment

Castlemaine

DEANE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 15 DECEMBER 1988, AT 10.17 AM

(Continued from 16/11/88)

Copyright in the High Court of Australia

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MR D.M.J. BENNETT, QC:  May it please Your Honour, I appear

with my learned friend, MISS J. WALKER, for the

plaintiffs. (instructed by Allen Allen & Hemsley)

MR J.J. OOYI.E, QC, Solicitor-General for South Australia: May it please

Your Honour~ I appear with my learned friend, MR B. SELWAY, for the defendant. (instructed by the Crown Solicitor for South Australia)

MR BENNETT:  Your Honour, the situation in this matter is a

little complicated. The case is going to involve

the working out of some of the issues which were left

open in COLE V WHITFIELD. The principal difficulty

in this case concerns the means by which one proves

a protectionist character and the nature of the material which goes to prove that. The extreme

competing views, of which of course there are a range,

are that on the one hand one looks just to the Act
itself; the other extreme view is that one looks to

the subjective views of legislators and cabinet

members and propounding ministers in relation to

legislation and there are various intermediate views

which are more likely to be closer to the result,

involving propositions such as looking at second

reading speeches, looking at explanatory memoranda,

looking at objective background facts concerning

market shares and effective legislation and matters

of that sort.

What happened in this case is that there is

legislation which provides in some detail for bottles

in which beer is sold to be compulsorily redeemable- - -

HIS HONOUR:  I have read the Chief Justice's judgment in the

interlocutory proceedings.

MR BENNETT:	Than I will not take Your Honour- - -
HIS HONOUR:	That is all I know about the matter, apart from

the brief mention.

MR BENNETT:  I will not take Your Honour through the facts

in that case. What the parties are seeking to

achieve - and I think what I am about to say now is

fairly common ground, although I do not tie my friend

to it, of course - is that there be a stated case to

the Full Court which would enable the Full Court to

do one of three things: that is, first, to say on

the objective facts which are agreed in the stated

case, which would no doubt be agreed by my learned

friend subject to relevance, nevertheless agreed,
those objective facts including matters such as
market share, effect on the market of the legislation,
statements in explanatory memoranda and in Hansard and
matters of that sort; that on those matters there is

a relevant protectionist characteristic of the

legislation - protectionist character of the legislation

which results in it contravening section 92.

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That would be our primary contention. That would be

a determination on agreed objective facts as to

which there could be no real doubt on either side.

It would finally determine the lease between the

parties and it would be dealing with a real lease

on real matters and decide the case.

The second possibility is that the Court would

say not only are those facts insufficient in this

case, so the plaintiff fails, but also the Court will
not look beyond those facts to subjective or, if I
may coin the word for the sake of convenience, quasi
subjective matters, and therefore the case can be

dismissed without going to trial on issues which

might be in dispute concerned with subjective or

quasi subjective views. That would result in the

real dispute being determined finally and the matter

would be over.

The third possibility, and the one which the

parties would need to satisfy the Court ought not

to cause it concern, and the parties both believe, as satisfy the Court that it should cause no concern, is

that the Court says, on the objective facts agreed the plaintiff does not succeed, he has not shown a protectionist character, but if the facts which the
plaintiff alleges and the defendant denies, being the
subjective and quasi subjective facts, were established,

the result might be different and those facts would

be, in a general sense, admissible for that purpose.

If the Court were to reach that conclusion, the matter would need to be remitted. But the reaching

of that conclusion would not involve the Court in
any determination of academic questions because the

Court would simply, as on demurrer in effect, be saying that certain allegations, certain matters in

the pleadings, if upheld, might be sufficient and

therefore the matter should go to trial. The parties

both appreciate the risk that they take in relation

to that third situation but, perhaps because they

are each sufficiently confident as to their stances

on position one and position two, they are prepared

to take the risk that on the third one it might be

necessary for a remitter at that stage. But it is a

remitter which would not involve the Court deciding

an academic question.
The highest it might go is the Court deciding in advance a question of admissibility on one sense.

Now, Your Honour does not need to decide that today.

I simply outline that to Your Honour to indicate

what the parties are endeavouring to work towards.

They have been endeavouring since the last mention to produce an agreed stated case. There have been

difficulties with that-

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HIS HONOUR:  Mr Bennett, if you think I am going t<

censorious about people not going fast enc

so on, do not worry about it.

MR BENNETT: If Your Honour pleases, that shorten:

was going to say a little bit.

HIS HONOUR:  I have difficulty with what you are s1

I can see its convenience from the partie.

of view but my prima facie reaction is th,

case is going to cause the whole Court to

conv~d for a hearing, it should be in a
where the Court deals with it finally. I:

words, I am not attracted by the notion tl

whole Court sits as it were to give - to,

judgments which may decide the case or wh

do not decide the case, explain why they

decide the case and explain whether or no

plaintiff can have another hearing before

Court to get the case decided. As I say,

the attractions from the parties point of

can see none at all from the Court's poin

Now, the reason I say that is that what I

sides need to direct their attention to i

to persuade me or whoever deals with the

subsequently why the matter should not si

remitted to the Federal Court or the Supr

of South Australia.

MR BENNETT:	Your Honour, if either the parties ca or Your Honour or whoever sits on the mat
February takes the view Your Honour has j
foreshadowed that would be necessary, th
then be a short argument between my learned
and myself as to whether we would go to the Court of South Australia, as he submits, or Federal Court, as I will submit. That, Ii
would take about an hour to -

HIS HONOUR:  You might bring a 20 cent piece with

It might help solve the dispute.

MR BENNETT:  I will have that perpared, Your Honou

might be more appropriate than the presen

for that purpose.

HIS HONOUR:  I do not think you can toss that, can

MR BENNETT: Certainly with more difficulty, Your

But we would certainly, if the Court is n

to take this sort of approach, seek a rem

soon as possible but we have decided, rel

is worth one last chance, in effect, to s

reach the other result. May I just say

Your Honour in relation to the problem Yo

raises, there are two things that concern

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Castlemaine

first is that if the matter is remitted with no

expression of opinion from this Court, the single justice who tries the case - or indeed the single justice of whichever court who hears the interlocutory

applications in the case - may have to decide questions
of discovery, privilege and so on, in the absence of
any guidance as to what material is admissible or
relevant at the hearing. For example, it might - and

I purely put an example hypothetically rather than

specifically at the moment, because I do not know

what stance either party would take - but for example

it might be said on our side that ministerials to
cabinet as to the purpose of the legislation, or as

to matters relevant to it, are something that we ought

to see and have the opportunity of tendering. That

might raise not only questions of Crown privilege

but also utility arguments on the basis that the

material is not going to be relevant at the hearing.

We are concerned about the length of time that

might take to determine and the risk which fills everyone with horror of material like that being

rejected, our going right up to the Full Court, the

Full Court saying it should have been admitted, and our going back a second time, which is, I suppose, the worst possible case one can imagine.

Now, Your Honour of course has really indicated

that Your Honour appreciatl.es the problems for the

parties. So far as the Court is concerned, the

argument that would be emphasized would be that the

probabilities are that the two - what I have perhaps

unfairly called the two extreme positions - they

are not really the two extreme positions, they are

actually the two most likely positions - that one

of those would be accepted; that the Court would

either say, the objective material is sufficient, or

it would say, it is insufficient and in any event the

subjective material would not be relevant.

It is only the third possible gateway which

gives rise to any risk of the matter going back and,

if it did, it would be a matter of enormous importance

from the point of view of principle for the Court to

decide what matters can be taken into account - well,

at least how far one loo.ks at subjective matters in

determining this sort of question.

By way of illustration as to its importance,

there is a matter being mentioned this afternoon

before the Chief Justice which involves in one sense

the same questions:: that is STREET V THE BAR

ASSOCIATION OF QUEENSLAND, where there are questions

as to what material can be looked at to locate a

protectionist purpose in the State legislation, and

it is an issue which is going to arise in a lot of

section 92 cases over the next few years. It is

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probably the principal issue left open by COLE V

WHITFIELD and if that matter were to be determined

by the Full Court in this case, in a situation where

it was not doing so academically but was doing so

as on demurrer where there is an allegation and a

denial and a demurrer saying that the allegation is

irrelevant, one could achieve the result.

HIS HONOUR:  One problem, though, of course is it is always

a lot - it is by and large more convenient to deal

with the admissibility of evidence when you know what

the particular evidence is instead of starting under

an obligation as it were to write a thesis indicating

the areas in which kinds of evidence may be admissible.

MR BENNETT:  What I would like to see in this case, Your Honour,

and again one does not know if this is going to be

achieved, but what one would like to s2e is the only

fact in the stated case under the heading, "Facts
not admitted" would be something to the effect, "It
was the purpose of the Government of South Australia
to protect the local beer industry" or some phrase

of that sort which no doubt would be staunchly denied

on one side and asserted on the other, and if the

Court were of the view that, on the objective matters,

the relevant protectionist character was not found

but that that fact would be relevant and, if proved,

would establish it, then there could be a remitter

fairly simply, without the Court having to go into the

question of what different facts might be found under

that heading. It would be a fairly simple - - -

HIS HONOUR:  I doubt if you will ever get Mr Solicitor to that

barrier, Mr Bennett.

MR BENNETT:  Not to the barrier of admitting that fact,

-Your Honour, no.

HIS HONOUR:  No, of saying that the case should be decided by

the Court on the basis of an allegation like that.

MR BENNETT:  He would submit, no doubt - it may be I have been

thinking on my feet about the formulation and I have

not formulated it precisely - but it may be that some

allegation like that would be all that we did not

agree on and that the Court could say, very simply,

such an allegation would or would not be relevant.	It
might be one would have to be more specific about
whose purpose than saying the Government of South
Australia, too.	But those are matters that can be
dealt with.

But with that lengthy preamble, Your Honour,

my application, which I think is by consent, is that

the proceedings be adjourned to 17 February and that

two hours be allowed on that day before a single

Justice, with a view to one of two things happening,

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possibly one of three: the two most likely are,

(a), we have totally failed to agree and we ask the

Court to remit and disagree about which court it
should be remitted to and argue that issue; the
second possibility is that we have agreed and

jointly ask the Court to accept a stated case and it

is a matter of persuading the single Justice of the

propositions I have outline to Your Honour this

morning-

HIS HONOUR:	Have you checked that date with the Registrar?
MR BENNETT:	Yes, Your Honour.
HIS HONOUR:	And the parties prefer Canberra for that?
MR BENNETT:	I would prefer Sydney.

MR DOYLE:  20 cent piece job, Your Honour. I would prefer

Canberra as I will be there that week, but I will

fit in with whatever is more convenient to the Court.

MR BENNETT:  I will fit in with whatever is more convenient,

Your Honour. If Canberra is more convenient to the

Court, we would accept that.

HIS HONOUR: Well, what is the parties preference? I will

make a note of that anyhow.

MR BENNETT:  Mine is Sydney, Your Honour, but we do not press

it strongly.

MR DOYLE:	Mine is Canberra, Your Honour.
HIS HONOUR:	Very well. That .may of course have to give way

to other things but unless something intervenes, I

will do what you ask.

MR BENNETT:  May I say two other things, Your Honour. I had

not finished saying what the third possibility that

might occur on that date, which is that the parties	have not agreed but one of them propounds a
document and says the matter can still in some way
go th.the Full Court and the other disagrees. That
is a possibility but hopefully that will not be the
case.

As far as dates are concerned, Your Honour, I

am instructed that my client is losing a considerable

amount of money per month. If its contentions are

correct and there is a length of time before they are

vindicated, my instructions are that my client is

very concerned about the matter being delayed more

than is necessary and if there were a problem about

the date, we would respectfully request that

consideration be given to an earlier, rather than a

later, date.

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HIS HONOUR:  What I had at the back of my mind, Mr Bennett,

was that is the last day of the first sittings

next year. If there were any problem about the

date when the list becomes more apparent and so

on, all I would have in mind would be that it be

dealt with, say, on the following Monday or some

time within the following week that suited everybody.

MR BENNETT:	Yes, if Your Honour pleases.
HIS HONOUR:	Mr Solicitor, is there anything that you want

to - - -

MR DOYLE:  No, Your Honour, my friend has surmnarized the

position fairly and although I could add in various bits and pieces, I do not think there is much point

in doing that. I will save that for the occasion

when we are next before the Court.

HIS HONOUR:  Very well. I do not need to adjourn the

matter, do I? This is just a mention.

MR BENNETT:  Your Honour, I was just reminded to seek leave

to file an amended statement of claim.

HIS HONOUR:	Mr Solicitor.
MR DOYLE:	Yes, we do not oppose that, Your Honour. There

are some matters in it which we would say are not

properly pleaded but I think rather than preventing

the statement of claim getting in, we will consent
to it going in and deal with it in the light of

what agreement we do or do not reach subsequently.

HIS HONOUR:  Very well, I give the plaintiffs leave to file

an amended statement of claim.

MR DOYLE:  Could we have leave, Your Honour, to file an

amended defenc.e?

HIS HONOUR:  Yes. It is a single defendant, is it not?

MR DOYLE:  Yes, Your Honour.

HIS HONOUR: I give the defendant leave to file an amended

defence. Any time, Mr Bennett?

HR BENNETT:  15 January, Your Honour.

HIS HONOUR: It is not a Sunday, is it?

MR DOYLE: It is, as it happens.

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HIS HONOUR:  The 16th, Mr Solicitor? On or before

16 January 1989. Unless the parties are notified

to the contrary, the matter will be listed for mention

in Canberra on 17 February.

AT 10.39 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 17 FEBRUARY 1989

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