Combet & Anor v Commonwealth of Australia & Ors

[2005] HCATrans 606

[2005] HCATrans 606

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S359 of 2005

B e t w e e n -

GREG COMBET

First Plaintiff

NICOLA ROXON MP

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

THE HONOURABLE KEVIN ANDREWS MP

Second Defendant

SENATOR THE HONOURABLE NICHOLAS MINCHIN

Third Defendant

For directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 AUGUST 2005, AT 11.58 AM

(Continued from 3/8/05)

Copyright in the High Court of Australia

__________________

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR J.K. KIRK for the plaintiffs.  (instructed by Maurice Blackburn Cashman)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friends, MR S.B. LLOYD and MS K.J. GRAHAM, for the defendants.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Gageler.

MR GAGELER:   Your Honour, we have received the defence yesterday and, as we see it, the issue of substance in the case is now crystallised.

HIS HONOUR:   I thought so too, yes.

MR GAGELER:   So the issue of substance is that crystallised by paragraphs 8.2 and 9.

HIS HONOUR:   Let me just follow it.  There is also a standing question, is there not?

MR GAGELER:   There is standing and there is relief, but the principal issue in the proceedings is that crystallised by 8.2 and 9.  What it is as we see it is that the third defendant has issued and proposes to continue to issue drawing rights under section 27 of the Financial Management and Accountability Act against a particular identified departmental appropriation.  The simple question is:  does that identify departmental appropriation?

HIS HONOUR:   They say there is another appropriation as well, do they not, in 12.1, which I think they want to keep in the locker.

MR GAGELER:   I am not sure how they do that, your Honour.  The issue of a drawing right has to be against a particular appropriation.  If there are these other ‑ ‑ ‑

HIS HONOUR:   But you want quia timet relief.

MR GAGELER:   I can at least get quia timet relief stopping them from relying upon that appropriation.

HIS HONOUR:   I know, but we are not going to sit here ruminating if they have another possibility of doing it.  We have other things to do.

MR GAGELER:   Perhaps some slight further clarification is needed, your Honour, for two reasons.  One is if you look at the other departmental appropriations that they refer to, there is no statement that they are currently seeking to rely upon them.  It is just if we are not right about that, then we might seek to do something else in the future.  That is one point.  If you look at what they seek to rely upon, one thing is the advance to the Minister for Finance.  They need to form the view that there is some emergency situation, and then they run into the problem of Brown v West.  We can have that fight; we are happy to have it.  The other is a rather obscure account, the Media Commissions special account.  We could have a very interesting argument about that, but our understanding from such public documents as exist about that account is that it contains a relatively small sum and would go nowhere near being a complete answer to the case in any event.

HIS HONOUR:   Anyhow, what is the way forward, the way forward being to Monday week.

MR GAGELER:   We had thought about a plaintiffs’ demurrer, but upon reflection it is probably better to go forward by way of special case.

HIS HONOUR:   Special case or case stated?

MR GAGELER:   Or case stated.  Your Honour, we would just see there as being three issues on the case stated.  One is:  do we have standing?  Two is:  is the application of public money for the purpose of the government advertising campaign authorised by the particular appropriation upon which they have relied and propose to continue to rely?  Three:  if yes to the standing question and no to the authorisation question, to what relief are we entitled?

HIS HONOUR:   Yes.  The second question might best be isolated by reference to particular paragraphs of the defence, I think.

MR GAGELER:   Yes, 8.2 and 9.  As we see it, the theoretical possibility of our learned friends relying on some other appropriation for some part of the expenditure, if they are told they are wrong, might go to the form of relief.

HIS HONOUR:   Yes, that may be right.  Yes, Mr Solicitor.

MR BENNETT:   We see it as going further than that, your Honour.  The quia timet requires an intention to perform an unlawful act.  If there are various appropriations which could be used when the time comes to make payments, then there is no threat to commit an unlawful act if we say at that stage there will be a debit to an appropriate appropriation.  My friend really has to show that we cannot do it legally. 

There is of course a further question which – there is the Minister’s special funds which has been referred to, and there is also of course, which rather indicates the futility of it all, always the possibility of legislation which makes an appropriation in relation to a payment which is to be made at the time because the appropriation of course is something which does not arise until payment is to be made.  What my friend really has to establish is that there is an intention to do something unlawful.

HIS HONOUR:   Yes.  How is this to be done in the context of a case stated or a special case?

MR BENNETT:   It is very difficult, your Honour.  The other problem of course with the special case, although that is the best way of doing it, is the degree of specificity with which one sets out the factual matters giving rise to the matter falling within the appropriation.  We say, as I put on the previous hearing, that our basic case is that there has been a campaign in relation to proposed legislation, the effect of which is, has been and will be, if it is unanswered, to provoke industrial action of various kinds, thereby resulting in reduced productivity.  We say within an appropriation to achieve increased productivity, we are entitled to answer the allegations made in that campaign with a view to reducing the probability that it will have that effect.  That is the issue in a sense.

HIS HONOUR:   The constitutional issue in the end is the meaning of the word “appropriation”, is it not, in the Constitution?

MR BENNETT:   I do not think there is much of a constitutional issue, your Honour.  I do not know if my friend challenges the validity of the appropriation.  He has not said that he does.

HIS HONOUR: It has to be read so as to accommodate the Constitution surely. You could not have a drawing right in respect of an appropriation that did not answer the sections in the Constitution.

MR BENNETT:   No, one could not but the ‑ ‑ ‑

HIS HONOUR:   And the section expressly says so, I think.  It is the concluding subsection that says that.

MR BENNETT:   I had not understood that to be the challenge which is made.  I understood there were all sorts of constitutional powers which could be invoked in relation to that, not the least of which would be the implied nationhood power.

HIS HONOUR:   No, the question is what “appropriation” means, not “Commonwealth purpose”; what is an appropriation.

MR BENNETT:   Appropriation is legislation which appropriates money for ‑ ‑ ‑

HIS HONOUR:   That is the question.

MR BENNETT:   If my friend wants to raise that question, no doubt he will do so.

HIS HONOUR:   Maybe I am completely wrong.  What is to be done practically to get this matter ready?

MR BENNETT:   There are no facts in the stated case.  There was no fact necessary in a special case to raise that issue.

HIS HONOUR:   No, that is right, but I am not sure that is the only issue.

MR BENNETT:   The issue which my learned friend seems to seek to agitate is one which requires the special case to contain much of the advertising contained in the affidavits.

HIS HONOUR:   That may be right.

MR BENNETT:   It is a fairly bulky document but there is probably no way of avoiding that.

HIS HONOUR:   No, I fear not.  You may want some material to go in too of that nature, I would have thought.

MR BENNETT:   Yes.  Your Honour, our evidence would be primarily documentary, probably exclusively documentary.  As presently advised, it would include substantial details of the ACTU campaign, particularly those parts of it which we would see as likely to be promoting industrial action, some evidence of industrial action that has occurred, which again if I ‑ ‑ ‑

HIS HONOUR:   We are getting to disputed facts, Mr Solicitor.  It is not going to get before the Full Court and I am going to make it get before the Full Court in some appropriate form, I can tell you now.

MR BENNETT:   I would not have thought any of these facts would be disputed, your Honour. 

HIS HONOUR:   I do not know.

MR BENNETT:   I am simply indicating what the material would be.  The inferences from them might be disputed.  That is why we need a special case, not a case stated.

HIS HONOUR:   Yes.

MR BENNETT:   There are some minor administrative documents we may need to put in like administrative arrangements and matters of that sort and the Financial Management Act determination establishing the account.  There is some matters of that sort but they are documentary and fairly simple.  Your Honour, I would have thought that the parties between them would be able to prepare a special case by some date next week.  Again, we would expect to be in a position to have our evidence on by some date around the middle of next week.  I assume my learned friend’s evidence is complete.

HIS HONOUR:   What are we talking about, evidence?

MR BENNETT:   In a sense we do not need evidence if we are going to have a special case.

HIS HONOUR:   No, that is right.  We are talking about materials as annexures to accompany the special case.

MR BENNETT:   Yes, we are.  No doubt that can be done by a convenient date next week.

HIS HONOUR:   Yes, all right.  What do you say, Mr Gageler?

MR GAGELER:   Your Honour, I am being a bit traditional about this.  The purpose of a defence is to identify the facts in issue.  Our learned

friends have had a very long time to produce their defence and we do not see one fact in issue on the defence, nor do we see any reference in the defence to this supposed, and from our point of view disputed and entirely speculative, notion that one of my clients, or the organisation of which he forms a part, has engaged in some form of advertising campaign which, absent action on the part of the Commonwealth, would lead to industrial unrest.  We dispute that.

As we see it, it forms no part of our learned friend’s defence and ought not be brought in to any question that goes to the Full Court.  As I said, we had considered the possibility simply of a plaintiffs’ demurrer, which was the way in which the Brown v West ‑ ‑ ‑

HIS HONOUR:   Well, I can see that as the preferable course at the rate things are going.

MR GAGELER:   Yes, heading down that path.

MR BENNETT:   It is the denial of 16 which raises precisely that issue, your Honour.

HIS HONOUR:   You can plead by way of reply and demur, can you not?  You could do both.

MR GAGELER:   I think I will do both and a demurrer ‑ ‑ ‑

HIS HONOUR:   I can set down the demurrer.

MR GAGELER:   Yes, that is what we will do.

HIS HONOUR:   I can assure you we are not going to be engaged in evaluating prospects of indirect consequences of industrial action.

MR GAGELER:   Your Honour, it comes down to this.  Section 27(1) ‑ ‑ ‑

HIS HONOUR:   Just a minute, Mr Gageler.  The denial of which paragraph, Mr Solicitor?

MR BENNETT:   Paragraph 16, your Honour.

MR GAGELER:   There is a lot in that denial, your Honour.

MR BENNETT:   There is, the whole case.

MR GAGELER:   I do not need I think to remind your Honour of Part 27 rule 5 of the current Rules.  As I said, it is not as if our learned friends have not had a great deal of time to think about this.

HIS HONOUR:   Yes.

MR BENNETT:   Can I just say this.  I cannot take my learned friend by surprise.  In the hearing before Justice Heydon, the substantial issue which I raised at great length is precisely that issue.  I will say it again so my friend can have no doubt about it.  Our case is that in denial of paragraph 16 that because of the ACTU campaign to which I have referred and the possible consequences of it, the government advertising falls squarely within the language of the appropriation in relation to increased productivity.  That involves proving facts in relation to what was in the campaign and possibly in relation to its consequences and likely consequences.

HIS HONOUR:   It is the latter step, Mr Solicitor.

MR BENNETT:   The likely consequences are a matter of inference.

HIS HONOUR:   Exactly.  If that is right, okay, but if not, there is a problem.  What is to be done?  Do you want to consider whether you are going to demur or require further particulars of this denial, or what is going to happen?  I really would have thought this matter could be sorted out.

MR GAGELER:   Yes, so do we, your Honour.

HIS HONOUR:   It does no credit to the legal profession and no credit to either side.  Yes, Mr Gageler.

MR GAGELER:   Can I just tell you where we are going.  As we see it, the pointy end of the case comes down to section 27 of the Financial Management and Accountability Act.  We are told that the Finance Minister or a delegate is going has issued particular drawing rights and he is going to issue them in the future against a particular appropriation.  The question is:  can he lawfully do that?  That is all it comes down to.  Our learned friends wanted to put some material before the Court by way of – and if the material is limited to indications of what this advertising is said to be in response to, we do not want to quibble about that if it involves holding up the case in any way and let it go forward.  If he wants to do something else, then frankly, we would have expected it to be at least identified in the defence what else he wishes to prove.  It may or may not be contentious.  It probably will be if he is seeking to prove indirect consequences from the conduct of organisations associated with either of my clients.

HIS HONOUR:   Yes, Mr Solicitor.

MR BENNETT:   Your Honour, in my respectful submission, our attitude has been very clear at all times and what the denial involves has been very clear at all times.  There is a need for some evidence in relation to the matter my friend refers to.  We are happy for it to be in the special case and for aspects of it to be dealt with by inference, but it will be a matter of some difficulty to draw a special case that the parties can agree to and I am concerned about that.

HIS HONOUR:   One way is to excise any questions of relief and leave that if need be for the single Justice.

MR BENNETT:   But the relief sought at present is relief which could not be obtained on any basis.  It is relief which would operate even if a fresh appropriation were passed by the ‑ ‑ ‑

HIS HONOUR:   I should say relief beyond declaratory relief in 1 and 2.  Do you need further time to work out, Mr Gageler, whether you are going to plead and demur or whether the matter should – that is in your court if you wish to do that.

MR GAGELER:   Yes.

HIS HONOUR:   I can set down a demurrer or, alternatively, proceed by a case stated, in which event some co‑operation from the Commonwealth is required.

MR GAGELER:   Those are not independent questions, your Honour.  I perhaps ought not give your Honour an immediate answer but have some discussions with my learned friend.

HIS HONOUR:   No, I am not suggesting you do.

MR GAGELER:   We got this defence last night and then we read it, as one ordinarily reads a defence, as setting out the facts.  So this is, frankly, a surprise.  We will need to have some discussions and let your Honour know.  That will be as soon as possible and hopefully today.

HIS HONOUR:   I will set it down for Monday at 2.00 pm.  The formulation of your submissions has to await this resolution, I suppose.

MR GAGELER:   No, the central issue of substance is ‑ ‑ ‑

HIS HONOUR:   Perhaps not.

MR GAGELER:   Perhaps not, no.  It is there.  The question of standing we can address.  It is just these peripheral questions, your Honour.  We could produce our submissions on the ‑ ‑ ‑

HIS HONOUR:   Thursday the 18^th?

MR GAGELER:   Would your Honour allow it to creep to the next day?

HIS HONOUR:   Friday the 19^th?

MR GAGELER:   Yes.

HIS HONOUR:   How soon thereafter, Mr Solicitor?

MR BENNETT:   For our submissions?

HIS HONOUR:   Yes.

MR BENNETT:   Your Honour, perhaps by the following Wednesday.

HIS HONOUR:   Wednesday the 24^th?

MR BENNETT:   Yes.

HIS HONOUR:   And reply?

MR GAGELER:   The Friday, your Honour.

HIS HONOUR:   The Court has been notified this morning that the Attorney‑General for Western Australia will be intervening, so that has an impact on this.  The intervener’s submissions should go on with the defendants’, I should have thought.

MR BENNETT:   No, your Honour, I would have thought with the plaintiffs’.  Presumably the intervention is to support the plaintiffs.

HIS HONOUR:   I do not know.

MR GAGELER:   I do not know either.

HIS HONOUR:   I would not bank on that.

MR BENNETT:   No, one does not know, your Honour, but that may be an unwarranted assumption.  In a sense one needs to know that before one can…..  I suppose one could say submissions in support of the plaintiffs should be filed by that date.

HIS HONOUR:   Yes, by interveners in support of the plaintiffs.  That is the way to do it.  What time on Monday would be best for counsel?  Are you in Sydney, Mr Solicitor?

MR BENNETT:   Yes, I am, your Honour.

MR GAGELER:   I can fit in really at your Honour’s convenience on Monday.

HIS HONOUR:   Noon or 4.00 pm?  Which would be better?

MR GAGELER:   Noon for me.

HIS HONOUR:   That will give you time to talk.  It seems to appear in the newspaper as 12.00 pm.

MR GAGELER:   Yes.

HIS HONOUR:   At the moment I will say:

1.        Submissions by the plaintiffs and any intervening supporting Attorney‑General be filed and served on or before Friday, 19 August 2005;

2.        Submissions by the defendants and any intervening supporting Attorney‑General be filed and served on or before Wednesday, 24 August 2005;

3.        Any submissions in reply by the plaintiffs be filed and served on or before Friday, 26 August 2005;

4.        I will stand the matter over for further directions as to the preparation of the matter for the Full Court to Monday, 15 August 2005 at noon; and

5.        I will reserve costs.

MR BENNETT:   Does your Honour wish to make an order about submissions by any Attorneys‑General who support the defendants?

HIS HONOUR:   Yes, I have.  That is the second step, submissions by the defendants and any intervening supporting Attorneys on or before Wednesday the 24^th.

MR GAGELER:   Your Honour, there is just a mechanical matter.  There was an annexure to our original statement of claim.  The amended statement of claim I think inadvertently omitted the same annexure and I would seek leave to ‑ ‑ ‑

HIS HONOUR:   I will hand that down.  It can be stapled to it after I have adjourned.  I reserve costs as indicated and I will stand it over to Monday the 15^th at noon.

AT 12.25 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 15 AUGUST 2005