Cunliffe & Anor v The Commonwealth of Australia

[1993] HCATrans 145

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IN THE HIGH COURT OF AUSTRALIA

Registry No C22 of 1992

B e t w e e n -

IAN GEORGE CUNLIFFE

First Plaintiff

IAN JOHN NICOL

Second Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

For Directions

MASON CJ

(In Chambers)

Cunliffe(2) 1 9/6/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 JUNE 1993, AT 9.31 AM

Copyright in the High Court of Australia

MR S.J. GAGELER:  If Your Honour pleases, I appear for the

plaintiffs. (instructed by Blake Dawson Waldron)

MR D.J. ROSE, QC: If Your Honour pleases, I appear with

MR G.M. AITKEN for the Commonwealth.	(instructed
by the Australian Government Solicitor)

HIS HONOUR:	Mr Gageler.
MR GAGELER:	Your Honour, the purpose of today's proceedings

is to ask Your Honour to amend the case stated and
to grant leave to amend the statement of claim to

raise section 92, freedom of intercourse, as an

extra part of the plaintiffs' claim.

HIS HONOUR:	Yes.
MR GAGELER:	May I hand to Your Honour an amended case

stated and a draft further amended statement of

claim. Those documents have been agreed between

the parties.

HIS HONOUR:	They have been agreed?
MR GAGELER:	Yes.
HIS HONOUR:	Yes.  I suppose you cannot express 3(d)

otherwise than in terms of "wish" .

MR GAGELER:	No, they do not wish -
HIS HONOUR:	I mean, there are difficulties, are there not,

in saying "you intend to", because it rather

depends on whether or not other people are prepared

really to participate with you in what you want to

do.

MR GAGELER:  Your Honour, we also do not wish to be breaking the law as it now stands.

HIS HONOUR:  No, I realize that. What I had in mind was

some alternative: "would, but for", but I think

"wish" is good enough, particularly if Mr Rose has

no objection.

MR ROSE:	We have no objection to that, Your Honour.
HIS HONOUR:	Very well, I grant a leave to amend the

statement of claim in accordance with the document

initialed by me and placed with the papers, and I

shall amend the stated case in accordance with the

document entitled, "Amended Case Stated", initialed

by me and placed with the papers, and I shall

arrange for the Registry to engross a stated case

in the appropriate form and sign it, bearing

today's date.

Cunliffe(2) 2 9/6/93

MR GAGELER:  If Your Honour pleases. Your Honour had

previously made directions for written submissions.

Again, the parties would be proposing to

Your Honour that the plaintiff put in revised

written submissions by 18 June which is Friday

next, and at the same time give notices under

section 78B of the Judiciary Act to each of the

States and Territories, including with the notice

the full written submissions of the plaintiffs.

The defendants would then put in revised written

submissions by 6 July.

HIS HONOUR:	Is that timetable acceptable to you, Mr Rose?
MR ROSE:	Yes, Your Honour.

HIS HONOUR:  Very well. I will direct that the plaintiffs

file and serve revised comprehensive written

submissions by 18 June and give 78B notices by that

date, and that the defendant will file and serve

its revised comprehensive written submissions on or

before 6 July.

MR GAGELER: If Your Honour pleases.

HIS HONOUR:  I think the Registrar has notified the parties

that a date will be allotted in the August sittings

covering two days. Is it estimated the hearing

will last approximately two days?

MR GAGELER:  Your Honour, I think if one or more of the

States are there it is likely to go more than two

days. It is likely to go more than one day, but I

would not think it would go more than two days.

HIS HONOUR:  Mr Rose, do you think one and a half days would

probably be a satisfactory estimate?

MR ROSE:  Again, it depends perhaps on how many States are

there, Your Honour. It could take two days. I

would not expect it to take more than two days,

perhaps one and a half.

HIS HONOUR:  Mr Rose, could I ask you to use your good

offices such as they are to prevail upon the States

to, as it were, allocate sections of the argument

if more than one counsel proposes to address the

Court on behalf of the States? In recent cases

there has been a regrettable tendency on the part

of counsel appearing for the States to continue to

cover the same aspects of arguments. In other

words, as we move down the list successive counsel

think that they can improve upon what has been said

earlier, and I must confess that their confidence

in their own power seems to me to be somewhat

mistaken. Do you think you could get message

expressed as gently and as courteously as possible?

Cunliffe(2)	9/6/93
MR ROSE:	As tactfully as I can, Your Honour, yes.

Would there be any advantage if the States

were asked to provide written submissions by any

particular date?

HIS HONOUR: Well, I think so. Yes, there is plenty of time

is there not, after your 6 July?

MR ROSE:	Yes.
HIS HONOUR:	It is rather difficult to direct the States to

do anything at the moment as they are not

interveners, but I can indicate that I would expect

States who propose to intervene to file and serve

comprehensive written argument on or before

21 July. That would give them three weeks after
they receive your revised submissions. That should

allow them plenty of time.

MR ROSE: Sixth, I think was the date for filing our

submissions.

HIS HONOUR:	Yes.
MR ROSE:	So that 6th to 21st would be two weeks.
HIS HONOUR:	Yes, it would be the 20th would it not, rather,

if we made it - do you think they need two or three

weeks?

MR ROSE:  Again it is perhaps difficult for me to speak on

their behalf. Two weeks should be adequate.

HIS HONOUR:	Yes, I would have thought so.
MR ROSE:	Because a lot of the ground after all has been

gone over before.

HIS HONOUR:  Yes, and also they will have received the

plaintiff's submissions earlier.

MR ROSE:  Yes, I think on that basis two weeks should be

adequate.

HIS HONOUR:  Yes, 20 July, we will make it.

'

MR ROSE: If Your Honour pleases.

HIS HONOUR:  You do not want any order made on this summons?

MR ROSE: Costs to be reserved.

Cunliffe(2) 9/6/93

HIS HONOUR: Costs to be reserved. Very well, I will order

that costs of each party be costs in the cause.

The Court will now adjourn sine die.

AT 9.40 AM THE MATTER WAS ADJOURNED SINE DIE

Cunliffe(2) 9/6/93