Castlemaine Tooheys Limited & Ors v The State of South Australia

[1988] HCATrans 273

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

DEANE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Castlemaine

AT CANBERRA ON WEDNESDAY, 16 NOVEMBER 1988, AT 9;31 AM

Copyright in the High Court of Australia

C3Tl/l/RB 1 16/11/88

MR K.R. HANDLEY, QC:  SIR MAURICE BYERS, QC, appears in

this matter for the plaintiff, Your Honour, and

I appear with him, with MR A. ROBERTSON.	(instructed
by Allen Allen & Hemsley

MR J .J. IX)YLE, QC, Solicitor-General for South Australia: I am appearing

with :MR M. D. 'WALTER, for the defendant, Your Honour.	( instructed
by the Crown Solicitor for South Australia)

MR HANDLEY:  For various reasons, Your Honour, which we,

perhaps, need not trouble Your Honour with unless

Your Honour has a great sense of curiosity, we

think we cannot usefully take the matter very far

today and we were hoping that the Court would be

prepared to sit in Sydney in the week which

includes 14 December.

There is a Solicitors-General meeting in

Sydney and my learned friend, Mr Doyle, will be

in Sydney on the 14th and, therefore, it could

be done either on the morning of the 14th or,

preferably on the morning of the 15th. There is
a question about - the amendments are not in order

for Your Honour to grant ·any leave, for typographical

reasons. We are going to review the question of the

joinder of the Minister.

My learned friend thinks there ought to be some

preliminary isolated questions of law sent to the

Full Court before there is any trial of the facts

or any remission. We are not in love with that -

that course does not commend itself to us. There

is, of course, the outstanding question of remission

and, in the meantime, a real effort can be made to

explore common ground on agreements on facts.

HIS HOOOUR: Mr Handley, I do not know much about this matter but

if I might make a suggestion, from experience, I

think remitting questions of fact is a tremendously

inconvenient procedure and it is normally a lot

better to simply remit the whole matter. That way
where he directs his attention .•..•.. :..:	the judge finding the facts does it in a context.
the law. It is not an unattractive burden to him and if the parties are dissatisfied with the findings within the ordinary appellate structure,
they are able to challenge them or to supplement
them.

(Continued on page 3)

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Castlemaine

MR HANDLEY:	Yes.
HIS HONOUR:	But as I s·ay it is just a personal view as

to the appropriate procedure with these cases.

MR HANDLEY:  I do not know that we would be in love with

the situation, Your Honour, where we had to go
through an intermediate appellate court before

we could get this Court to decide the constitutional

issues.

HIS HONOUR:	By leave an appeal would lie direct.
MR HANDLEY:	Yes.  It is important - section 92 points here

and I am not sure - I think nobody quite knows

how these matters would be decided under the new

regime and least of all an intermediate appellate

court.

HIS HONOUR:  I cannot coIIDilit, of course, what the Full Court

would do about leave but I would have thought if
the whole matter wene remitted at the instigation
of the Judge dealing with the matter you would

have a strong starting point there.

MR HANDLEY:  Yes, thank you, Your Honour. In any event

before we got to that point I think we would want

to explore the pleadings. We would take the

view that the pleadings ought to be closed and

any exploration of coIIDI10n ground on evidentiary

matters exhausted.

HIS HONOUR:  Well, there is certainly no problem about

adjourning it. As to the Court sitting in

Sydney on 14 December - - -

MR HANDLEY:	It is in vacation, of course.
HIS HONOUR:	Yes. Well, I will take the matter up with

the Chief Justice and we will work out what can

be done about this. (Continued on page 4)

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Castlemaine

MR HANDLEY:  Yes, I think my learned friend's preference would

be for the morning of the 15th.

MR DOYLE:  I do not really mind, Your Honour, it is just that

I have to go to Sydney anyhow for the 14th, I was

hoping rather than making two trips within a few days

if it could be at least, say, on Tuesday the 13th or

Thursday the 15th or Wednesday the 14th and I can

just leave my meeting for an hour or so.

HIS HONOUR:	Yes, well which day would suit you best?
MR DOYLE:	I suppose Wednesday the 14th probably would suit me

best and then failing that the morning of Thursday the 15th.

HIS HONOUR:	And you, Mr Handley?
MR HANDLEY:	Sir Maurice Byers, Your Honour, I think, will be

available for either of those days and - - -

HIS HONOUR:  If it can be conveniently arranged, I will arrange

it to be liste·d on Wednesday the 14th. Is that all?

MR DOYLE:  Yes.• Perhaps - I do not know whether it is necessary just

to mention this but we will at that appointment be

suggesting that a case be stated to the Full Court,

in particular, on the issue of whether subjective

intention of ministers or governments is relevant,

because our contention will be that if there is a

remitter, really of any sort with that question unresolved,

we could have a large factual inquiry as to intention,
but if intention is not relevant, than whatever form

the remitter takes it could be a good deal shortened

so we will be raising that at the next application.

HIS HONOUR: Obviously, the parties should try and reach as

much agreement as possible because - - -

MR HANDLEY:  What happened in this case, Your Honour, apparently

the minister made some charmingly frank statements in

Parliament about the purpose of the legislation and

needless to say we seek to have the benefit of these

and my friend seeks to suggest that they are irrelevant.

But we would merely make the point that the factual

area opened up is not likely to be of a large compass,

but I do not know that	we will be able to reach
coIIm1on ground	outside the Hansard as to this matter

if it is deemed to be relevant.

HIS HONOUR:  · I see, very well. I will adjourn now.

AT 9.38 AM THE MATTER WAS ADJOURNED

UNTIL A DATE TO BE FIXED

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Castlemaine