Cunningham & Ors v Commonwealth of Australia & Anor

[2015] HCATrans 346

[2015] HCATrans 346

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S140 of 2015

B e t w e e n -

BARRY THOMAS CUNNINGHAM

First Plaintiff

DR. ANTONY HAMILTON LAMB OAM

Second Plaintiff

THE HONOURABLE JOHN COLINTON MOORE AO

Third Plaintiff

THE HONOURABLE BARRY COHEN AM

Fourth Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

REMUNERATION TRIBUNAL

Second Defendant

Directions hearing

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 DECEMBER 2015, AT 9.27 AM

Copyright in the High Court of Australia

____________________

MR R.J. ELLICOTT, QC:   I appear with MR M.G. McHUGH, SC for the plaintiffs, your Honour.  (instructed by Hazan Hollander Solicitors)

MR D.F.C. THOMAS:   If the Court pleases, I appear for the first defendant.  (instructed by the Australian Government Solicitor)

MR ELLICOTT:   After a bit of a struggle, your Honour, we have got there yesterday and ‑ ‑ ‑

HIS HONOUR:   Nothing like a deadline.

MR ELLICOTT:   ‑ ‑ ‑ they were happy to say there is a special case that we have agreed on.  Your Honour is obviously aware of the issue that we are dealing with which is really, I suppose you can say, it is on the borderline of cases which suggest that if the Commonwealth gives the Commonwealth can take away in relation to the acquisition of property by the Commonwealth.

HIS HONOUR:   Yes.

MR ELLICOTT:   It is in the context that the case is prepared and brought.  In relation to the special case, I just wanted to raise one issue and that was in relation to question 1 which I felt, we obviously discussed this with the Commonwealth, we suggested that question 1 was not one which had any separate purpose really, because it did not answer questions that were going to have to be raised, as it were, on the other questions.

HIS HONOUR:   Yes.

MR ELLICOTT:   It divides it up in a way that you  might get an answer but it might be confusing actually, because when you put one or other together, it means something else, so ‑ ‑ ‑

HIS HONOUR:   We are thinking alike, Mr Ellicott.

MR ELLICOTT:   If your Honour pleases.  On the question of dates, your Honour, there have been some discussion with my friend about it, we felt it was a case where your Honour might perhaps see it, or the Court might see it, as coming on in May, or is likely to come on in May, but we do not know anything about ‑ ‑ ‑

HIS HONOUR:   No, I do not actually have control over such things ‑ ‑ ‑

MR ELLICOTT:   Yes, I appreciate that.

HIS HONOUR:   ‑ ‑ ‑ but it would be a possibility, a distinct possibility that it could come on in May.

MR ELLICOTT:   Yes, your Honour, well, in other words, not before May, I suppose we are saying.  We have agreed on a programme because we had not been party to the dates that had been fixed, the Commonwealth had put some submissions in, and we have agreed with a view to it coming on no earlier than May to the dates that begin with the number 6 on the going forward, I think it is a month is it ‑ ‑ ‑

HIS HONOUR:   Well, are we looking at annexure A to the Commonwealth submissions ‑ ‑ ‑

MR ELLICOTT:   That is right, your Honour.

HIS HONOUR:    ‑ ‑ ‑ which has proposed orders 1 to 12.

MR ELLICOTT:   Yes, that is the one.

HIS HONOUR:   Yes.

MR ELLICOTT:   Order 6 would be 11 March.

HIS HONOUR:   You were proposing changing these dates?

MR ELLICOTT:   Yes, your Honour.

HIS HONOUR:   I see.

MR ELLICOTT:   Order 7 would be 18 March.  Might I just pause there and say we are not aware of any interveners at this stage, your Honour.

HIS HONOUR:   It would only be the Territories probably who would be interested.

MR ELLICOTT:   Yes.  The Northern Territory said they were going to think about it but we have not received anything but never mind.  This does cater for them if they suddenly wake up.  Order 7 would be 18 March, 8 would be 1 April, that is appropriate, and – I am only joking – 9 is 8 April, 10 is 15 April and 11 is the 15th.

HIS HONOUR:   Very well.  Mr Ellicott, do you have any sense of the volume of the material which would form part of the special case?

MR ELLICOTT:   Your Honour, I suspect it will probably be as wide as this desk when it appears because there is a lot of material in relation to Life Gold Pass and there will be, I think we have had to cover for our various submissions a long period of legislation and it is not only the Parliamentary Superannuation Act but it is also the development of the Parliamentary Allowance Act and there are questions as to whether one needs to look at the Act at a particular date so that one meets the Act at those dates.

We have done our best to meet all those requirements in the special case and that may lead to volumes which are more expansive than perhaps the issue suggests.  There is a debate between us to whether very much of the pre‑1973 material is relevant, but my friend is pressing it and we have to allow them obviously to press whatever they want.  So we have agreed to material in relation to that, more expansive than perhaps we might submit is necessary, but I am not seeking to put any blame anywhere.  I am just saying if we are going to be putting in the special case, then we have to accommodate each other.

HIS HONOUR:   You have to accommodate all tastes, I understand.  I am just concerned about the apparent size of this special case.

MR ELLICOTT:   Yes.  We have discussed this.  I suspect the case, or we do, would go probably a day and a half, your Honour.  It may not finish in a day.

HIS HONOUR:   All right.  Now, I have not looked in any detail at the legislation you are challenging, but at least in relation to the gold pass, or part of your challenge to the gold pass, am I right in understanding that there is what is sometimes called an historic shipwreck’s clause in the relevant legislation which would mean that the consequence of there being an acquisition of property, would not be invalidity but an entitlement to compensation?

MR ELLICOTT:   Yes, that is right, your Honour, yes.

HIS HONOUR:   Yes. 

MR ELLICOTT:   It is a question that, once answered, goes off to the Federal Court, I suspect ‑ ‑ ‑

HIS HONOUR:   Yes.

MR ELLICOTT:   ‑ ‑ ‑ unless there is agreement.

HIS HONOUR:   But that only applies to the gold pass challenge, as I understand it, then ‑ ‑ ‑

MR ELLICOTT:   Yes.

HIS HONOUR:   All right.  Mr Ellicott, could we just look together perhaps at the questions.  You have a concern about question 1, so do I.  I was wondering whether we could delete question 1 and reframe question 2 so that it would read in exactly the same way as it currently reads except after the words “acquisition of property”, these words were added; actually, after the word “acquisition”, delete “of property” and insert instead “of any and if so, what property of the plaintiff’s or any of them”.  Then in relation to question 3, I wondered whether it might be better to replace question 3 with the question “if the answer to any part of what will now be question 1 is yes, to what if any relief are the plaintiffs or any of them entitled in the proceedings”.  I am not wedded to the exact words but that would be the sense of it.

MR ELLICOTT:   Yes, your Honour.  After “yes” in that ‑ ‑ ‑

HIS HONOUR:   Yes, “to what if any relief are the plaintiffs or any of them entitled in the proceedings”.  So, it would then capture the possibility of ‑ ‑ ‑

MR ELLICOTT:   Yes.

HIS HONOUR:   ‑ ‑ ‑ declarations followed by remitter in the case of the gold pass or simply a declaration of invalidity in the other case.  You may want some time to think about that.

MR ELLICOTT:   No, I think that covers it, your Honour.  No, your Honour, we would be happy with that.

HIS HONOUR:   Very well.

MR ELLICOTT:   I take it, I will just say this, that I am thinking of just terms.  It does not appear anywhere and I am not suggesting it need to.  I am just thinking about it.

HIS HONOUR:   Yes, perhaps that should be built in to the first question, the words “otherwise than on just terms” should appear.

MR ELLICOTT:   Yes.

HIS HONOUR:   Yes.  I will let you work out where to insert them.

MR ELLICOTT:   Yes.  Well, we are happy with that, your Honour, and ‑ ‑ ‑

HIS HONOUR:   Yes.

MR ELLICOTT:   ‑ ‑ ‑ if your Honour makes the orders as to the time, I think it will meet our mutual agreement.

HIS HONOUR:   Very well.  Mr Thomas.

MR THOMAS:   If the Court pleases, so far as the timetable is concerned that my friend has proposed, just so we are clear, that contemplates a May sitting and would not accommodate an April sitting.  If the Court is prepared to make those orders, then we are comfortable with them, save that the Solicitor‑General, to the extent it is relevant now, does have difficulties and would be overseas in the first week of the May sittings.  I just wish to alert the Court to that.  We can otherwise engage with the Court once we get closer to a hearing date.  Can I then turn to matters of substance?

HIS HONOUR:   Yes.

MR THOMAS:   The first of those is question 1.  We are obviously grateful for the indication your Honour has provided.  We would press question 1.  We do think, with respect, that it does have relevance and significance in this particular case.  It is a threshold question on one view of the world before one even gets to concepts of acquisition, let alone just terms, and I can take the Court if necessary, either now or later in the day, to some cases in which, I am thinking of Peverill’s Case and Chaffey ‑ ‑ ‑

HIS HONOUR:   Can I just make my ‑ ‑ ‑

MR THOMAS:   Yes.

HIS HONOUR:   ‑ ‑ ‑ position reasonably clear?  Of course, I cannot make the parties ‑ ‑ ‑

MR THOMAS:   Indeed, yes.

HIS HONOUR:   ‑ ‑ ‑ agree on any particular form of question.  I do have a concern that questions in special cases have been drifting towards the unduly elaborate.  It is not necessary to spell out in the terms of the question formally to be answered by the Court every step in the reasoning which would need to be undertaken to get to a final outcome.

What tends to happen when questions become unduly elaborate is that the formal responses to be given by the Court end up after days of argument and contemplation not to be really responsive to the way in which the questions have been framed.  So I just want to avoid the unduly elaborate.  I am not in any way seeking to constrain the arguments that would be put ‑ ‑ ‑

MR THOMAS:   Yes.

HIS HONOUR:   ‑ ‑ ‑ or to suggest that there is not a logical sequence.

MR THOMAS:   I understand, your Honour.  I mean, I am conscious, as your Honour correctly said, it is a matter for the parties.  In a sense, the document has been filed on the basis of an agreement and certainly, while I accept we have had discussions between the parties about this question in particular, the special case was presented as agreed and as your Honour knows, it can only be referred on an agreed basis ‑ ‑ ‑

HIS HONOUR:   Yes.

MR THOMAS:   ‑ ‑ ‑ and the questions are referred rather than the facts.  More than happy and, in any event, I would need to obtain instructions within a short period in relation to the formulation your Honour has put forward in relation to ‑ ‑ ‑

HIS HONOUR:   Yes.

MR THOMAS:   ‑ ‑ ‑ existing questions 2 and 3 and it may be ‑ ‑ ‑

HIS HONOUR:   How short is a short period?

MR THOMAS:   Would your Honour just pardon me for a moment?

HIS HONOUR:   Yes.

MR THOMAS:   Would midday be too long an adjournment?  I have a number of different sources of instructions, as your Honour might appreciate.  If that is not possible, then I will ‑ ‑ ‑

HIS HONOUR:   No, well, it is not a problem for me ‑ ‑ ‑

MR THOMAS:   Yes.

HIS HONOUR:   ‑ ‑ ‑ if it is not a problem for Mr Ellicott.

MR THOMAS:   Yes.

MR ELLICOTT:   No, it is not a problem.

HIS HONOUR:   That is fine.

MR THOMAS:   If the Court pleases.

MR ELLICOTT:   You want us to come back?

MR THOMAS:   Yes, I think that would be the appropriate course, unless the ‑ ‑ ‑

HIS HONOUR:   I think that is the appropriate course in the circumstances.

MR THOMAS:   Yes, your Honour.

HIS HONOUR:   Yes.  Was there anything else, Mr Thomas?

MR THOMAS:   No, other than to accede to Mr Ellicott’s suggestion that, with respect to existing question 2, there should be provision made for “otherwise than on just terms” and your Honour has acceded to that as well.

HIS HONOUR:   Yes, of course, yes.  Was that the intention behind question 3?

MR THOMAS:   It was.  So, we had set it out.  Question 3 has some precedential value.  I mean, it was the question that Justice Gummow stated it in a case stated in Telstra and in a sense does identify the ultimate question of validity and the need there to identify just terms as well.

HIS HONOUR:   Yes.

MR THOMAS:   But we think that Mr Ellicott’s suggestion is helpful to ensure that “just terms” is identified within at least one of the questions expressly given.  It is an argument that we will be making.

HIS HONOUR:   Yes, and as I understood the questions, they were sought to be framed to dispose of the entirety of the proceeding.

MR THOMAS:   Yes, so your Honour is correct as to the existence of historic shipwreck’s clauses and the potential need for some form of remitter, depending on the answer to the questions.

HIS HONOUR:   All right.  Well, in the circumstances, I will stand this matter over to noon.

MR THOMAS:   If the Court pleases.

AT 9.45 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 11.55 AM:

MR ELLICOTT:   Your Honour, we are happy with the questions that your Honour suggested.  There is a date to be altered in the timetable, but I will leave those matters to my friend because he wishes to say something about the questions.

MR THOMAS:   Your Honour, can I hand up two documents?  The first is a modified outline of the questions of law.  The second is a typed‑up timetable document, so your Honour does not have to make handwritten amendments to the timetable that was already provided.  Can I just address the questions?

We accept your Honour’s observations with respect to the original question 1; that has now been deleted.  Paragraph 2 of the document I have handed up is in the form your Honour suggested.  There is a slight change we would propose to what is now question 2.  I think your Honour had suggested if any part of question 1 is answered yes to “what if any relief”, we were concerned that “any part of” is somewhat ambiguous and it may be referring either to a relevant legislative or other instrument or an element of the constitutional provision. 

It seems to us that in light of the fact that question 1 itself is formulated as “do any of the following laws or determinations give rise to an acquisition”, that in those circumstances an affirmative answer to that question, either in whole or in part, is sufficient to enliven question 2 in those circumstances.  That is what we would propose.

HIS HONOUR:   All right, and I take it that Mr Ellicott is content with that?

MR ELLICOTT:   Yes, your Honour, if your Honour is happy with that.  Your Honour, I think this question that your Honour mentioned earlier about questions of law, I think it is a matter that the Court has to be involved in.  The parties cannot just choose it because it is not only case management and knowledge of what the Full Court might require by the Justice, but as the rule is stated, it seems to require the questions of law arising in the case.  Now, that must be matter that the justices are concerned in and it cannot be left to the party.  There is no relevance now but I am just saying that I think that is the proper approach, your Honour.

HIS HONOUR:   Well, on that basis, we have adopted the proper approach in this case, yes.

MR THOMAS:   So, that deals with the first document.  The second document is the timetable and just as a courtesy to the Court, the parties have proposed a slight change to Order 2.  That date was originally 12 January.  We are proposing 29 January, just given the practicalities of the vacation.  So that is the document headed Annexure A ‑ ‑ ‑

HIS HONOUR:   Yes.

MR THOMAS:   ‑ ‑ ‑ simply so that the book of documents would be filed on 29 January instead of 12 January.  We do not perceive that to cause any difficulty of an administrative nature, given where we are heading towards a hearing perhaps in May.

HIS HONOUR:   All right.  Just allow me to read this document.

MR THOMAS:   Yes.

HIS HONOUR:   All right.  I suppose it is best that I read these orders onto the transcript.  The orders I make are as follows:

1.On or before 23 December 2015, the plaintiffs file and serve a signed special case substantially in the terms of the draft discussed in Court today.

2.On or before 29 January 2016, the Commonwealth file and serve the Book of Documents referred to in paragraph 2 of the special case.

3.Upon the filing of the Book of Documents, the questions stated by the parties in the special case be referred for consideration by a Full Court.

4.On or before 5 February 2016, the plaintiffs file nine copies and serve on the Commonwealth two copies of the Special Case Book prepared in accordance with an index settled by the Registry.

5.Unless otherwise ordered or directed, Part 44 of the High Court Rules 2004 (Cth) relating to written and oral submissions, including annotated forms of submissions, with any necessary variations or adaptions, is to apply to this proceeding.

6.On or before 11 March 2016, the plaintiffs file and serve their annotated written submissions of not more than 20 pages and a chronology, together with a list of authorities.

7.On or before 18 March 2016, any intervener in support of the plaintiffs file and serve their annotated written submissions of not more than 20 pages, together with a list of authorities.

8.On or before 1 April 2016, the Commonwealth file and serve their annotated written submissions of not more than 20 pages and a chronology, together with a list of authorities.

9.On or before 8 April 2016, any other intervener file and serve their annotated written submissions of not more than 20 pages, together with a list of authorities.

10.On or before 15 April 2016, the plaintiffs file and serve annotated written submissions in reply of not more than five pages.

11.On or before 15 April 2016, the Commonwealth file and serve any annotated written submissions in reply to any other intervener of not more than five pages.

12.The costs of this directions hearing be costs in the cause.

Those are the orders I make.  The Court will now adjourn.

AT 12.02 PM THE MATTER WAS ADJOURNED