Duncan v Independent Commission Against Corruption

[2015] HCATrans 131

[2015] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S90 of 2015

B e t w e e n -

TRAVERS WILLIAM DUNCAN

Applicant

and

INDEPENDENT COMMISSION AGAINST CORRUPTION

Respondent

Application for removal

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 25 MAY 2015, AT 2.15 PM

Copyright in the High Court of Australia

MR G.E.S. NG:   May it please the Court, I appear for the applicant.  (instructed by Yeldham Price O’Brien Lusk Lawyers)

MR G.M. WATSON, SC:   May it please, your Honour, I appear with MS Z.C. HEGER for the respondent.  (instructed by Crown Solicitor for New South Wales)

HIS HONOUR:   The written submissions of the parties persuade me that the interests of justice favour the exercise of the discretionary power conferred by section 40(1) of the Judiciary Act 1903 (Cth) to order removal into this Court of so much of the proceeding now pending in the Court of Appeal of the Supreme Court of New South Wales as involves a challenge to the validity of Part 13 of Schedule 4 to the Independent Commission Against Corruption Act 1988 (NSW) as inserted recently by the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW).

I am persuaded to take this course having regard, in particular, to the potential for an early resolution of the constitutional issue by this Court to result in a significant saving of time in the hearing and disposition of the proceeding between the present parties that is now pending in the Court of Appeal, as well as to the resolution or substantial resolution of a number of other proceedings now pending in the Supreme Court of New South Wales in which the same issue arises, or is likely to arise. 

I therefore propose to make the order for removal substantially in the terms sought on behalf of Mr Duncan and not opposed by the Independent Commission Against Corruption.

Now, Mr Ng, the proceeding in the Court of Appeal is technically an application for leave to appeal, is it?

MR NG:   That is so, yes.

HIS HONOUR:   I suppose nothing turns on that.

MR NG:   Not from our perspective.  Certainly matters might be assisted somewhat by your Honour being informed that the application for leave to appeal is not opposed.

MR WATSON:   That is conceded.

HIS HONOUR:   Yes, thank you.  Do I take it that the document that was annexed to your reply ‑ ‑ ‑

MR NG:   There are two.

HIS HONOUR:   Yes.

MR NG:   The first of which is live and that is the version of the Further Amended Draft Notice of Appeal that was ultimately accepted for inclusion in the white folder.

HIS HONOUR:   What does that mean?  Does that mean filed?

MR NG:   No, it does not.  An attempt was made to file the document in the registry, but the registry took the point that given that this was still at the application for leave stage, it was inappropriate for the document to have been received there, as a consequence of which the document was provided to the associate for the President and, as I understand it, she indicated that it would be included amongst the papers in the white folder and would therefore form the parameters of the contest, as it were, in the Court of Appeal.

HIS HONOUR:   All right.  I suppose no point is taken about that either.

MR WATSON:   No, and the white book itself is filed so ‑ ‑ ‑

HIS HONOUR:   Yes, very well.  So it is formally before the Court of Appeal?

MR WATSON:   That is right.

HIS HONOUR:   Now, I did take the trouble to formulate some orders and directions which I hope you have received, Mr Ng and Mr Watson.

MR WATSON:   Yes, thank you, your Honour.

HIS HONOUR:   Do you need some time to consider that document?

MR WATSON:   Not at all.  We are more than content with that proposal.

HIS HONOUR:   Yes.  Mr Ng.

MR NG:   The position is exactly the same here.

HIS HONOUR:   Yes, very well.  I suppose I will just proceed to make orders and directions in those terms.  It is probably best that I read them on to the transcript.  The orders and directions I make are as follows:

1.Order that so much of proceeding No 2014/239426 pending in the Court of Appeal of the Supreme Court of New South Wales as concerns grounds 1A, 1B and 1D and prayers 1, 2 and 4 of the Further Amended Draft Notice of Appeal be removed into this Court.

2.Direct that, save as modified by the following directions, Parts 5 and 44 of the High Court Rules apply to the part of the proceeding as so removed as if that part of the proceeding were an appeal to this Court, Travers William Duncan were the appellant and the Independent Commission Against Corruption, ICAC, were the respondent.

3.Direct that Mr Duncan file 12 copies, including one unbound, unperforated copy of a cause removed book and serve a copy of the cause removed book on ICAC before 4.00 pm on 9 June 2015.  The contents of the cause removed book are to be settled by the Registrar.  Subject to any further direction of the Registrar, those contents are substantively to include no more than the relevant ICAC report, the judgment at first instance and the Further Amended Draft Notice of Appeal.

4.For the purpose of Part 5 of the High Court Rules, direct pursuant to rule 5.02.1(b)(iv) that Mr Duncan file and serve notice of a constitutional matter before 4.00 pm on 1 June 2015.

5.For the purpose of Part 44 of the High Court Rules:

(a)fix the time for Mr Duncan to comply with rule 44.02 governing written submissions of the appellant as 4.00 pm on 19 June 2015;

(b)fix the time for ICAC to comply with rule 44.03 governing written submissions of the respondent as 4.00 pm on 10 July 2015;

(c)fix the time for Mr Duncan to comply with rule 44.05 governing written submissions in reply as 4.00 pm on 24 July 2015;

(d)dispense with the operation of rule 44.06.1; and

(e)direct that all written submissions as filed by either party or any intervener comply with the formal requirements for annotated written submissions set out in rule 44.06.2.

6.Order that the costs of the application for removal be costs in the cause removed.

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

AT 2.23 PM THE MATTER WAS ADJOURNED