Crump v State of New South Wales

[2011] HCATrans 319

[2011] HCATrans 319

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S165 of 2011

B e t w e e n -

KEVIN GARRY CRUMP

Plaintiff

and

STATE OF NEW SOUTH WALES

First Defendant

NEW SOUTH WALES STATE PAROLE AUTHORITY

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 16 NOVEMBER 2011, AT 10.30 AM

Copyright in the High Court of Australia

MR G.E.S. NG:   May it please the Court, I appear for the plaintiff.  (instructed by Legal Aid NSW)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If your Honour pleases, I appear for the first defendant.  (instructed by Crown Solicitor (NSW))

HER HONOUR:   Yes.

MR NG:   Your Honour will have seen from the written submissions that the attempts on my client’s part more precisely to articulate the basis of his claim have had the rather unsalutary consequence that the parties are now at odds as to whether a referral to the Full Court should occur at all.

HER HONOUR:   Yes, I have noted that, Mr Ng.  The draft special case filed on 11 November does refine the issue.

MR NG:   Yes.

HER HONOUR:   May I just raise this with you before I turn to the question of the difference of opinion concerning the merits of the point?  The first defendant notes that as the result of some discussions there was some amendment to the draft special case to remove the alternative framing of the question respecting the suggestion that the effect of section 154A of the Administration Act is to render nugatory or to stultify the possibility of the plaintiff ever successfully invoking the appellate jurisdiction of this Court, but one does find echoes of that still both in the amended writ of summons and the amended statement of claim.

MR NG:   Yes.

HER HONOUR:   Is that much accepted?

MR NG:   Your Honour, I should perhaps indicate that for my own part it might be thought that there is a bit of conceptual overlap between (a) and (b) in question 1 of the special case.  However, to the extent that (b) extends beyond (a) and takes us into terrain which does not arise given that there is no currently pending appeal, I am content for an order to be made that that particular paragraph in the statement of claim be struck out or amended or deleted.

HER HONOUR:   Yes.  It might be that the leave that you seek respecting the filing of the amended writ of summons and amended statement of claim might be subject to you bringing in a document that deletes – I think it is paragraph 2(a)(ii) in the writ and in the statement of claim 2(a)(ii) and paragraphs 39(e) and 40(c).

MR NG:   Yes.

HER HONOUR:   There is no controversy about an order in those terms then, Mr Ng?

MR NG:   That would not cause us any difficulty, no.

HER HONOUR:   Yes, very well.  I think I understand the point that you seek to articulate, Mr Ng.  I might just take up with the Solicitor‑General the question of the future conduct of the litigation.  I am mindful, Mr Solicitor, of the stance that the first defendants take, expressed in paragraph 11, the concluding paragraph of your submissions.  Unless there is something further you want to put to me, Mr Solicitor, my inclination is to think that the point is sufficiently arguable to make it appropriate that a referral be made once the special case is filed.

MR SEXTON:   I have set out everything we wanted to say in those submissions, your Honour.

HER HONOUR:   I understand, yes.  Very well, does that mean we might move to settling on a timetable?

MR SEXTON:   I think so, your Honour.  In the light of what your Honour says and accepting my learned friend’s assurances in relation to those paragraphs that your Honour nominated in the proposed amended writ and the proposed amended statement of claim – so subject to that we, I think, do not have a problem with the timetable that is set out in my learned friend’s submissions.

HER HONOUR:   Do I take it, Mr Ng, the amended pleadings, subject to the discussion that we have just had, might be filed today?

MR NG:   Yes, that is certainly possible.  Perhaps given that changes have to be made to it, if your Honour built in an extra 24 hours, that would be most convenient.

HER HONOUR:   Yes.  That can be accommodated.  I think we could still stick with 23 November for the 78B notices.  Plainly, fresh notices will have to be issued. 

MR NG:   Yes. 

HER HONOUR:   And for the filing of any defence or demurrer to the amended pleading.  As I understand it, the Solicitor‑General has no

difficulty with that aspect of the timetable.  The special case might then be filed on Wednesday, 30 November, Mr Ng.  Is there a difficulty with that?

MR NG:   No, there is no difficulty with that, your Honour.

HER HONOUR:   Yes.  I take it, Mr Solicitor, in light of the draft special case you see no difficulty with the filing of the special case by 30 November?

MR SEXTON:   No, I think that is right, your Honour.

HER HONOUR:   Yes.  If the special case is filed on 30 November, assuming it is in a suitable form, there would be no difficulty with me making a referral order in chambers, would there, so that I might now set a timetable for submissions on the assumption that the special case will be referred into the Full Court.  I think the likely date would be for a hearing in March of next year.  Bearing in mind the Christmas recess, Mr Ng, if the special case were filed on 30 November, if you were to file your submissions by – would 18 January be a reasonable date?  It gives you ‑ ‑ ‑

MR NG:   Your Honour, it ordinarily would, except I will be out of the country on that day as I suspect would Mr Walker.

HER HONOUR:   When are you going to be back, Mr Ng?

MR NG:   I will be back on the 24th.

HER HONOUR:   Yes, all right.  Let me just see.  If I were to direct the plaintiff to file written submissions by 31 January and give the first defendant to – I am sorry, we are working off Wednesday, so it should be to 1 February, Mr Ng.

MR NG:   Yes.

HER HONOUR:   Then to 15 February for the submissions from the first defendant, interveners to file and serve submissions within seven days of the filing of the submissions of the party in whose interests they appear to support and submissions in reply by 22 February.  Does that timetable present any difficulties to either of you gentlemen?

MR NG:   No, it does not.

HER HONOUR:   Yes.  Are there any further matters then, Mr Ng?

MR NG:   Not for my part, your Honour.

HER HONOUR:   Very well, I will make the following orders:

1.I grant leave to the plaintiff to file the proposed amended writ of summons subject to the amendment discussed in the course of the proceedings this morning and the amended statement of claim subject to the same amendments, the subject of discussion, by close of business on Thursday, 17 November 2011.

2.I direct that fresh section 78B notices be served on or before close of business on 23 November 2011.

3.I grant leave to the defendants to file any defence or demurrer to the amended statement of claim on or before close of business on 23 November 2011.

4.I direct the special case is to be filed on or before close of business on 30 November 2011.

I will specify the following timetable on the assumption that the special case is suitable for referral into the Full Court.  I anticipate that such an order may be made in chambers:

(i)The plaintiff is to file and serve his submissions on or before close of business on 1 February 2012;

(ii)The defendants to file and serve submissions on or before close of business on –

Did I say 15 or 20?  Is that sufficient, that is only two weeks - that more happily accommodates provision for interveners and their reply before the March sittings if that is possible, Mr Solicitor.

MR SEXTON:   I think two weeks will be enough, your Honour.

HER HONOUR:   Very well:

(ii)The defendants to file and serve their submissions by close of business on 15 February 2012;

(iii)Any intervener to file and serve its submissions within seven days of the filing of the submissions by the party in whose interests the intervener intervenes in support;

(iv)Submissions in reply to be filed by close of business on 29 February 2012.

I think that attends to all necessary matters.  I will adjourn.

AT 10.45 AM THE MATTER WAS ADJOURNED