CD & Anor v Commonwealth of Australia; CD & Anor v Director of Public Prosecutions (SA) & Anor

[2025] HCATrans 19

[2025] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A2 of 2025

B e t w e e n -

CD

First Plaintiff

TB

Second Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Adelaide  No A24 of 2024

B e t w e e n -

CD

First Appellant

TB

Second Appellant

and

DIRECTOR OF PUBLIC PROSECUTIONS (SA)

First Respondent

ATTORNEY‑GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Second Respondent

GAGELER CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 12 MARCH 2025, AT 4.30 PM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR D.F. O’LEARY, SC appears with MS S. PALANIAPPAN for the plaintiffs in A2/2025 and the appellants in A24/2024.  (instructed by Agresta Moran Barristers & Solicitors)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia, appears with MR T.M. BEGBIE, KC for the defendant in A2/2025 and the second respondent in A24/2024.  (instructed by Australian Government Solicitor)

MR M.G. HINTON, KC appears with MS A.F. CAIRNEY and MR W.M. SCOBIE for the first respondent in A24/2024.  (instructed by Director of Public Prosecutions (SA))

HIS HONOUR:   I have read the written submissions on the directions that have been filed by the Commonwealth and by CD.  Mr Hinton, I do not think I have received anything from you.

MR HINTON:   No.  No written submissions have been filed by us.

HIS HONOUR:   Do you have an attitude to the way in which these two proceedings are to be dealt with?

MR HINTON:   Very much in the hands of the Court, what we want is the fastest way home, if I can put it that way.

HIS HONOUR:   Yes.  Be careful what you wish for.  The Court could accommodate the two proceedings on 13 and 14 May.  That is, Tuesday the 13th and Wednesday the 14th.  I note that a special case has been filed in the matter in the original jurisdiction of the Court and that the proposed timetabling order – that is, the timetabling order proposed by the Commonwealth parties – in that matter aims for a May hearing.

My current inclination is that the two cases could be listed together in those two days.  I note what the Commonwealth says about the utility of the appeal if the original jurisdiction matter is decided one way, but I think it is better for those issues to be addressed by the Full Court with the benefit of submissions.  Mr O’Leary, what do you say about the course of listing the two matters on the 13th and 14th?

MR O’LEARY:   We, of course, support the listing the two matters together.  It is the difficulty of May that I just wish to raise that will – we, of course, never programmed a May hearing.  I note that that will mean that Mr Walker will not appear.  He is currently elsewhere.  I can do those dates, and I note, though, that my junior cannot.  So, whilst I can certainly do it, your Honour, it does present some obstacles.

That said, I appreciate that the Court does not determine these matters at the convenience of counsel, so I think that is a matter for us to deal with.  But subject to the urgency of the matter, we would embrace the hearing of the two matters together.  If that is the course that the Court takes, then the orders for the programming of that are largely provided by the Commonwealth, although I would seek to be heard on a couple of extension days for some matters that they have dealt with.

HIS HONOUR:   Certainly.  We will come back to that, Mr O’Leary.  Solicitor‑General of the Commonwealth.

MR DONAGHUE:   Your Honour, I should clarify that the special case you have received is a draft document that the Commonwealth is prepared to sign in those terms, but the plaintiff has not yet indicated that they are agreeable to it.  In saying that, I am not anticipating any problem, but I just do not want to pre-empt the position.

HIS HONOUR:   Thank you, I had misunderstood.  Thank you.

MR DONAGHUE:   Assuming that that document is able to be agreed, then in light of your Honour’s indication that it is possible to hear both matters in May and in light of your Honour’s indication that you appreciate that we have said that might involve a day of argument or slightly more than a day of argument on issues that, on one view, the Court might not reach, we are in the Court’s hands.  If that is your Honour’s preference, then we would be pleased to get both matters ready in that timetable.

There is not, I think, an agreed timetable in the appeal that would – so, we have proposed orders in the constitutional matter, and the parties would need to – either with the Court’s assistance or without it – agree a timetable that sets up the appeal to be ready for hearing on the same date.  But again, I do not anticipate any problem on that front.

HIS HONOUR:   Thank you.  Mr Hinton.

MR HINTON:   We will have no difficulty and be ready for those two days.

HIS HONOUR:   Very good.  Mr O’Leary, I think that this may be your big day in Court, on the 13th and 14th of May.

MR O’LEARY:   Thank you, your Honour.

HIS HONOUR:   I had thought that the special case had been finalised.  Mr O’Leary, you may not be in a position to indicate your client’s position, but do you know?

MR O’LEARY:   Your Honour, I do not anticipate that there will be a difficulty agreeing to it.  It was provided at around lunchtime today.  My clients are in custody and we literally cannot take instructions for about 24 hours; it takes time to put in a phone call.  We have indicated that we do not anticipate that there will be any difficulty with at least the substance of what is proposed, at all.  There has been some to‑and‑fro and it largely mirrors the statement of claim that was filed by us, anyway.  So, that is that matter.

In respect to timetabling of the appeal as well, we did, in our submissions – annexed to our submissions for this application – provide for, at pages 5 and 6, consolidation of matters to bring the two to hearing.  That is not something that, perhaps, the Court should delay itself with today.  I am sure that the parties can confer.

HIS HONOUR:   I do not propose to consolidate the two matters, but rather just have them listed together, because I anticipate that something we will be asked to do by the Solicitor‑General of the Commonwealth is revoke special leave in the other matter, and there may be some argument about that.  So, I do not propose to make any formal order for consolidation.

Mr O’Leary, in circumstances where the special case is yet to be filed, my inclination is to make no procedural orders at all today.  Once the special case is filed, then I would make by consent an order referring that to the Full Court for hearing.  I would make whatever timetable is acceptable to the parties for submissions and other supporting documents to be filed, and I would also include, specifically in that order, that the matter be listed for hearing before the Full Court on the 13th and 14th of May, with the appeal.  So, I do not think I need to make any of those orders now, and you could possibly discuss, with the other parties, an appropriate timetable.

MR O’LEARY:   Certainly, but the only orders that I was actually referring to were the orders for the filing of submissions for the appeal, because, as your Honour may recall, they were vacated.

HIS HONOUR:   I see.  Yes, in the appeal, could you also prepare an appropriate timetable, and I am sure you can coordinate the two.

MR O’LEARY:   Indeed.

HIS HONOUR:   Yes.  Is that acceptable, Mr Solicitor?

MR DONAGHUE:   Yes, your Honour.  We will endeavour to file the agreed special case and consent orders in both the appeal and the original jurisdiction matter in the terms that your Honour has identified.

HIS HONOUR:   Thank you.  Mr Hinton, I think you are only in the appeal, but that is acceptable to you, as well?

MR HINTON:   It is, if your Honour pleases.  We were going to take the opportunity now to apply for permission to intervene in the constitutional challenge, primarily on the basis that it has always been our intention to apply for the revocation of special leave in the appeal, relying upon the Consolidation Act.  I do not think that in any way means an increase in time to hear the two matters, but it allows us that flexibility to make submissions ‑ ‑ ‑

HIS HONOUR:   Would you be proposing to make submissions on the constitutional merits of the plaintiffs’ case?

MR HINTON:   We would seek permission to intervene in support of the Commonwealth.

HIS HONOUR:   Yes, I am just not inclined to make such an order at the moment, Mr Hinton, given that that would naturally be a role for the Solicitor‑General of South Australia.

MR HINTON:   Yes, it normally would, if your Honour pleases.

HIS HONOUR:   I would certainly allow you to renew the application to be determined at the hearing, but I am not inclined, myself, now to make such an order.

MR HINTON:   If your Honour pleases.

HIS HONOUR:   Is there anything else to discuss?

MR DONAGHUE:   No, your Honour, not ‑ ‑ ‑

HIS HONOUR:   Very well.  I will allow the parties to take the course that has been indicated, and I will simply adjourn both matters.  Thank you.

AT 4.41 PM THE MATTERS WERE ADJOURNED