Chevalley & Anor v Inspector Rodney Morrison & Ors

[2012] HCATrans 3

[2012] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S414 of 2011

B e t w e e n -

GRAHAME ANTHONY CHEVALLEY

First Applicant

HILTON ROSS GRUGEON

Second Applicant

and

INSPECTOR RODNEY MORRISON

First Respondent

INDUSTRIAL COURT OF NEW SOUTH WALES

Second Respondent

ATTORNEY GENERAL OF NEW SOUTH WALES

Third Respondent

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 27 JANUARY 2012 AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR KEYZER:   Good morning, your Honour.  Before we commence, my learned friend, Mr Burbidge, would like to make a brief comment.

HER HONOUR:   Yes, Mr Burbidge.

MR BURBIDGE:   Thank you, your Honour.  Your Honour, may I say on behalf of us all that I offer to your Honour our sincere congratulations on the bestowal upon you of the award of Companion of the Order of Australia.  That award has received the warm approbation of the legal profession and, I have no doubt, the whole Australian community.  May it please the Court.

HER HONOUR:   Mr Burbidge, I am most grateful for the kindness of your remarks. 

MR P.D. KEYZER:   Your Honour, I appear for the applicants.  (instructed by McDonald Johnson Lawyers)

MR R.J. BURBIDGE, QC:   Your Honour, I appear with my learned friend, MR B.C.A. BRADLEY, on behalf of the first respondent who is the prosecutor.  (instructed by Crown Solicitor (NSW))

MR S. ROBERTSON:   May it please the Court, I appear for the third respondent.  (instructed by Crown Solicitor (NSW))

MR KEYZER:   I just wanted to confirm you have the affidavits of my instructing solicitor, Mr Matthew Bryan, from 21 and 22 December. 

HER HONOUR:   I have the affidavits of Mr Bryan.  I have read those affidavits.  Is there any objection to any part of those affidavits, Mr Burbidge?

MR BURBIDGE:   No, not from our perspective, your Honour. 

HER HONOUR:   Mr Robertson, do I take it no objection?

MR ROBERTSON:   No objection.

MR KEYZER:   I just wanted to confirm you have the affidavits of my instructing solicitor, Mr Matthew Bryan, from 21 and 22 December. 

HER HONOUR:   I have the affidavits of Mr Bryan.  I have read those affidavits.  Is there any objection to any part of those affidavits, Mr Burbidge?

MR BURBIDGE:   No, not from our perspective, your Honour. 

HER HONOUR:   Mr Robertson, do I take it no objection?

MR ROBERTSON:   No objection.

HER HONOUR:   Yes.  Very well, I have those affidavits and you may take it that I have also read the written submissions filed in support of the summons.

MR KEYZER:   Thank you, your Honour.  If I can take you to paragraph 24(a) of the written submissions, your Honour, my instructing solicitor advises that a three‑week trial is coming up at present and that three weeks preparation would be required with a substantial investment of resources and costs.

HER HONOUR:   Yes.  It may be that some of this can be short‑circuited, Mr Keyzer.  I will just inquire of you, just to tidy up matters of evidence, in addition to the affidavits that have been filed on behalf of the applicants an affidavit has been filed by your client, Mr Burbidge.  It is the affidavit of Mr Robinson sworn on 25 January.  Do I take it that is relied upon?

MR BURBIDGE:   Yes, it is, your Honour.

HER HONOUR:   There is no objection to any part of that, Mr Keyzer?  Yes, well it might be taken that I have also read Mr Robinson’s affidavit.  As I apprehend the position, both the first and third respondents take a neutral position with respect to the application for expedition?

MR BURBIDGE:   That is my understanding, your Honour.  Certainly it is our position.

HER HONOUR:   I note that the second respondent has filed a submitting appearance.  In the circumstances it would appear that the pending application for special leave has at least the tendency to interrupt criminal proceedings pending in the Industrial Court and, for that reason, there would seem to be some desirability to the matter being expedited if that is possible.  I take it, Mr Burbidge, that is accepted?

MR BURBIDGE:   It is accepted, your Honour.

HER HONOUR:   I can indicate that the special leave list for 10 February has had a matter removed from it so it would appear that in the circumstances this matter could be inserted into the list on that date.  That would, at least with respect to the resumption of the proceedings before Justice Backman, clarify matters.  In the event special leave were not to be granted the position would be clear by then and in the event that it were, consideration could be given to the impact of that on the resumption of the proceedings at that time.

MR BURBIDGE:   Certainly, your Honour.  From our perspective we much prefer that if expedition is to be granted that the February date, if available, be selected.

HER HONOUR:   Mr Robertson, do I take it you do not wish to be heard?

MR ROBERTSON:   I do not wish to make any submissions, your Honour.

HER HONOUR:   Very well.  Now, all that remains in terms of the preparation of the matter for the special leave hearing is the filing of the reply, I think, and, of course, the application books.  Is that so?

MR KEYZER:   That is correct, your Honour.

HER HONOUR:   In the ordinary course you would have, I think, until 2 February to file the reply.  What I had in mind was this.  The books need to be filed in time for them to make their way to Canberra so that some consideration can be given to the matters before Friday, the 10th.  Would there be any difficulty with the books – with the reply being filed and the books by, say, Thursday, 2 February – that is next Thursday?

MR KEYZER:   There is certainly no problem for us.

HER HONOUR:   Yes.  Well, that being so, the only matters that really need to be considered – I think there is some issue about the order for costs that you seek.  Is that so?  What is the difficulty with me simply granting expedition, fixing the matter for hearing in the Sydney special leave list on Friday, 10 February and the question of the costs of the application and the application for expedition might be dealt with on that occasion?

MR BURBIDGE:   We have nothing to say on that topic.  Thank you, your Honour.

MR ROBERTSON:   We are content with that course, your Honour.

HER HONOUR:   Is that suitable to you, Mr Keyzer.

MR KEYZER:   Yes, your Honour.

HER HONOUR:   Is there any further order that I need make beyond the directions that I have foreshadowed?

MR KEYZER:   No, with respect, your Honour, but we do have a short minute if that would assist the Court.

HER HONOUR:   Thank you.

MR KEYZER:   If it was convenient for your Honour to fill in the dates, as it were.  We now know the identity of the Justice underneath the ‑ ‑ ‑

HER HONOUR:   The fourth order is not consistent with the discussion that has just ‑ ‑ ‑

MR KEYZER:   No, it is now redundant.  Yes, your Honour.

HER HONOUR:   I take it there is no requirement for me to give reasons in light of the discussion that has taken place before us, gentlemen.

MR BURBIDGE:   Not from our perspective.  Thank you, your Honour.

HER HONOUR:   Very well.  In this matter I make the following directions: 

1.The applicants are to file any reply on or before 2 February 2012.

2.The applicants are to file the application book on or before 2 February 2012.

3.The application for special leave to appeal filed by the applicants on 22 December 2011 is listed for hearing in Sydney on 10 February 2012.

4.The costs of the summons are stood over to be determined on 10 February 2012 at the time the application is determined.

MR BURBIDGE:   May it please the Court.

HER HONOUR:   I will adjourn.

AT 9.40 AM THE MATTER WAS ADJOURNED