Duncan v Independent Commission against Corruption

[2015] HCATrans 124

[2015] HCATrans 124

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

Summons for expedition

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 19 MAY 2015, AT 9.30 AM

Copyright in the High Court of Australia

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

MS Z.C. HEGER:   If the Court pleases, Heger, for the defendant.  (instructed by Crown Solicitor for New South Wales)

HIS HONOUR:   Mr Ng, has the further amended notice of appeal been filed in the Court of Appeal?

MR NG:   As I understand it, it has not yet been filed and included in the white folder in the Court of Appeal.  We have received indication from ICAC of consent to its filings so they can be attended to in relatively short order.

HIS HONOUR:   Paragraph 1(c) is not sought to be removed into this Court, as I understand.

MR NG:   No.

HIS HONOUR:   Paragraph 1(d) has an unfortunate internal reference to paragraph 1(c).

MR NG:   It does.  Can I indicate that that can be revised?  Paragraph 1(c) is not sought to be removed into this Court because, as your Honour appreciates, it is dependent upon grounds 2 and following.

HIS HONOUR:   Yes, of course.  It just seems to have been done in a rather complicated way, Mr Ng.

MR NG:   Yes.  That infelicity of drafting I take complete responsibility for, your Honour, and I can ‑ ‑ ‑

HIS HONOUR:   It is not an admonition; it is just an encouragement to perhaps tidy it up.

MR NG:   Yes.  Well, that encouragement will be acted on in due course.

HIS HONOUR:   Yes.  Now, the grounds that are sought to be removed turn, as I understand the argument, on an initial question of construction, that is, you have to read the Act not as expanding the power of ICAC retrospectively but rather as instructing a court to ignore a previous excess of power.  That is the starting point for the entire constitutional argument, as I understand it.

MR NG:   Yes.  It may be perhaps appropriate to regard it as both a question of construction and characterisation in the sense that at issue will

be whether or not the relevant provision, that is, clause 35 of Schedule 4, achieves its means substantively or in what Chief Justice Street in BLF termed a directive manner.  Now, that might be regarded as a question solely of construction but it may also go to the fundamental character of the provision.

HIS HONOUR:   Yes.  No, I understand.  Well, the question you will need to address for the purposes of removal is why it is appropriate that this Court bifurcate the proceedings currently in the Court of Appeal to deal with a constitutional issue which may not arise if the legislation is interpreted one way.

MR NG:   Yes.

HIS HONOUR:   You do not need to address that now.  At the moment you are just asking for expedition of the removal application.

MR NG:   Yes.

HIS HONOUR:   I understand what you say about that and I understand it to be the position of both parties that that removal application should be dealt with as soon as possible.

MR NG:   Yes.

HIS HONOUR:   Yes.  Is next Monday at 2 o’clock a suitable time?

MR NG:   Can I seek instructions in relation to that, your Honour?

HIS HONOUR:   Yes.

MR NG:   I certainly see no difficulty with that.  Inquiries may have to be made with Mr Hutley, but I am sure the time can be accommodated.

HIS HONOUR:   Very well.  Ms Heger?

MS HEGER:   We would similarly need to make inquiries of the other counsel briefed in this matter, but there are presently two senior counsel briefed, I am sure one of them could be available at 2.00 pm on Monday.  Is it envisaged that there be an opportunity for the Commission to file written submissions on the removal application before then?

HIS HONOUR:   Certainly.  I had in mind for you Thursday of this week.

MS HEGER:   I am sure that can be achieved.

HIS HONOUR:   Yes.  Now, again, I do not particularly need in these submissions a recitation of the constitutional argument.  I can pretty much understand what that will be.  It is really the question of discretion, the appropriateness of removal into this Court of proceedings that would otherwise be dealt with in the Court of Appeal according to the existing timetable.

MS HEGER:   Understood.  That is a helpful indication.  Thank you.

HIS HONOUR:   Yes, very well.  The orders I propose to make are as follows.  I will read them out.  I will then invite counsel to make any comments before I actually make them:

1.Expedite the application for removal.

2.Abridge the time for the respondent to file its summary of argument to 4.00 pm on Thursday, 21 May 2015.

3.Abridge the time for the applicant to file his reply to 4.00 pm on Friday, 22 May 2015.

4.Dispense with the operation of rule 26.06 of the High Court Rules 2004 (Cth).

5.List the application for removal for hearing before me on Monday, 25 May 2015 at 2.15 pm.

6.Order that the costs of the summons for expedition be costs in the application.

Now, I said 2.15 pm because I have another matter at 2.00 pm on that day.  Are there any comments on those proposed orders?

MR NG:   No, your Honour.

MS HEGER:   No, your Honour.

HIS HONOUR:   They are the orders that I make.  The Court will now adjourn.

AT 9.36 AM THE MATTER WAS ADJOURNED