Cunningham v Commonwealth of Australia & Anor

[2015] HCATrans 243

[2015] HCATrans 243

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

Summons for directions

GAGELER ACJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 23 SEPTEMBER 2015, AT 9.28 AM

Copyright in the High Court of Australia

____________________

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

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

HIS HONOUR:   Well, Mr Ellicott, you think you can agree on a special case?

MR ELLICOTT:   We think we have.  We are not quite there, your Honour.  There are two matters that trouble us from our point of view, but if I explain to your Honour what we want to achieve as plaintiffs – we are optimistic that this is a case that will find favour with your Honour as one to be stated to the Full Court.  We know of no reason based on primary fact why it would need to go to the Federal Court for the determination of any matter.  The Commonwealth does not seem to disagree with that.  Our aim is to have the matter stated by the end of this year, so that the procedure in the Full Court, namely the preparation of submissions, can start and go ahead as quickly as possible so that the matter can be determined as quickly as possible.

HIS HONOUR:   It has taken some time to get here, Mr Ellicott.

MR ELLICOTT:   It has taken some time, and I do not want to go into the reasons for that, and I do not seek any sympathy because of it, but the fact is that we are here and we are ready to go on with the matter.  But if we can achieve that object – there are two aspects of the consent order that the Commonwealth has proposed that we disagree with, or would like altered.  They are not matters of fundamental debate, but in the context of what I have said, they would ease the position. 

They do not want to talk to us about a special case, the detail of it, until after the defence is filed.  We, for our part, do not see any reason for that.  We think that it is pretty obvious that the determinations by the Remuneration Tribunal and many other public materials will need to go before the Court for consideration, and why should we not talk beforehand, we are asking ourselves; what is the problem?  Is there something in their cautious optimism that might blow up in our face?  If there is well, they had better tell us.  We are not aware of anything, and basically, reading it with all the goodwill we can, we think their argument is what we wanted to hear.

The other aspect is this, that at the moment the proposal is that the Commonwealth will prepare the case and present it to the plaintiffs by 13 November.  They nominate 11 December, which is the last day of term, and we simply are saying why cannot it come back, because we are the ones who will decide whether we can agree or not, by 27 November, so that the matter can hopefully find some convenient time before your Honour whereby your Honour may be able to take the formal step of stating it for the Full Court before the end of the term.

HIS HONOUR:   Do I understand, Mr Ellicott, your concern there is with the timing, not with the Commonwealth having control of the drafting?

MR ELLICOTT:   No, we found that very successful on an earlier occasion, your Honour, and we have referred to that in the argument ‑ ‑ ‑

HIS HONOUR:   Although very time consuming, of course.

MR ELLICOTT:   ‑ ‑ ‑ and we had all the co‑operation in the world.

HIS HONOUR:   Yes.

MR ELLICOTT:   That is our position shortly.

HIS HONOUR:   Yes.  What about the timetabling, Mr Ellicott, of the defence and the reply?  You have no difficulty with that?

MR ELLICOTT:   We do not have any objection to that.  We have an understanding that time may be needed, otherwise of why that time might be needed, but we are only surmising and we are happy to ‑ ‑ ‑

HIS HONOUR:   All right.  If you accept that, having the first draft of a special case a week after the reply seems pretty reasonable.

MR ELLICOTT:   Yes.

HIS HONOUR:   So your real concern is with being able to commence what might be lengthy discussions before the close of pleadings?

MR ELLICOTT:   Yes, and bring it back by 27 November.

HIS HONOUR:   All right.

MR ELLICOTT:   I notice the Court sits in ‑ ‑ ‑

HIS HONOUR:   Being realistic about that ‑ ‑ ‑

MR ELLICOTT:   ‑ ‑ ‑ to 10 December.

HIS HONOUR:   Yes.  Being realistic about that, Mr Ellicott, you are not going to achieve very much by bringing it back in November as distinct from December.  Obviously, the case, if referred to the Full Court as a special case, is not going to be heard in any event until February.  There will be plenty of time for the preparation of written submissions.  There will be simply no difficulty about having it heard in February or March, as the case may be, and that would be the case whether it comes back before me in early December or late December.  I am just not sure what would be achieved by truncating what is already a fairly tight timetable, given the complexity of the issues potentially raised.  I am not pre‑empting what would be in the Commonwealth’s defence.

MR ELLICOTT:   I suppose we are just anxious to get into the list as soon as we can, your Honour.

HIS HONOUR:   Of course.  All I am suggesting is ‑ ‑ ‑

MR ELLICOTT:   Your Honour can understand that if the plaintiffs are successful, there are substantial amounts of money involved, reading the statement of claim.  They are not kept out of the money in the sense if they are successful that they get it, but it is good to get it as you go when you are 75 or 80 or, in my case, 88, your Honour, but there we are.

HIS HONOUR:   Yes, all right.  Thank you.

MR ELLICOTT:   When I say “in my case”, I do not mean I have a pension.  I do not have a pension.

HIS HONOUR:   I was not going to make any comment about that, Mr Ellicott.  I understand what you are saying.  Did you want to say something more about ‑ ‑ ‑

MR ELLICOTT:   No, your Honour.

HIS HONOUR:   Mr Thomas, the first three steps in your proposed short amendment of order do not seem to be controversial.

MR THOMAS:   No.

HIS HONOUR:   I am not sure that I need to make an order about conferring.

MR THOMAS:   Yes, it would seem that some Justices make that order; some do not.  We put it in out of extra caution, but we would imagine the Court would accept that the parties will negotiate in good faith.

HIS HONOUR:   Yes.  What about the timing of that negotiation?  Mr Ellicott is concerned that it occur as soon as possible; you are concerned that it occur in an orderly manner.  I can see the merit of both positions.

MR THOMAS:   What I had understood – I may be wrong – to be the primary area of concern on the part of my friend was that the plaintiffs obtain access as soon as reasonably practicable to a number of documents that are not currently within their possession, such as early Remuneration Tribunal determinations, and various parliamentary reports in the relevant area of dispute.  I did wish to indicate that any written request along those lines, even a request issued or sent by their solicitors next week, will obviously be responded to in good faith and as soon as practicable.  That, in a sense, would deal with one aspect, as I apprehend it, of my friend’s concern.

So far as the commencement of the negotiations on the terms of the case, Mr Ellicott said at the commencement of his submissions that the parties were not quite there yet.  I did want to clarify, no negotiations as to the terms of the special case have commenced.  We submit that the orthodox approach in a case of quite significant complexity is to have a firm foundation in the pleadings before one embarks on the negotiation of terms. 

It is our expectation that the Commonwealth’s defence will engage with the issues in the plaintiff’s statement of claim in substance, and that some significant time will be put in by the Commonwealth to the crafting of the defence.  We are hopeful that that document itself will assist, once it has been served, in negotiating.  As I say, it would be a potentially complex draft special case.

My friend’s timetable gives the parties 14 days to confer.  We just do not think that is realistic in the circumstances.  If the Court was minded to bring the matter back slightly before 11 December, we would not have a problem about that, but we are concerned that, in a sense, we may not be in

a position to assist the Court, and therefore there will be additional costs for the matter to come back at a somewhat later date.  I am ultimately in your Honour’s hands.

HIS HONOUR:   Of course.  Given that the matter will not be heard before the February or March sittings in any event, I do not see much point in trimming a week here or there off the timetable.  I am not inclined to make Order 4.

MR THOMAS:   Yes.

HIS HONOUR:   I note what you say about your willingness to respond to any early requests for the production of documents.  I am inclined to make the time for relisting the matter for directions before me 18 December 2015.  If that is too late, Mr Ellicott, let me know.

MR ELLICOTT:   No, that is fine, your Honour.

HIS HONOUR:   All right, thank you, Mr Thomas.  Mr Ellicott, you have heard what I am inclined to do.  I propose to make orders in those terms.

MR ELLICOTT:   If it comes back on 18 December that is fine, your Honour.

HIS HONOUR:   Yes, all right.  The orders I make are as follows:

1.On or before 23 October 2015, the first defendant file and serve a defence.

2.         On or before 6 November 2015, the plaintiffs file any reply.

3.On or before 13 November 2015, the first defendant serve a draft special case on the plaintiffs.

4.On or before 11 December 2015, the plaintiffs file and serve any draft agreed special case.

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

6.The proceeding be relisted for directions before me in Sydney at 9.30 am on 18 December 2015.

They are the orders I make.  Thank you, gentlemen.

AT 9.41 AM THE MATTER WAS CONCLUDED