Duncan v The State of New South Wales; NuCoal Resources Limited v State of New South Wales; Cascade Coal Pty Limited and Ors v The State of New South Wales

[2014] HCATrans 165

[2014] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S119 of 2014

B e t w e e n -

TRAVERS WILLIAM DUNCAN

Plaintiff

and

THE STATE OF NEW SOUTH WALES

Defendant

Office of the Registry
  Sydney  No S138 of 2014

B e t w e e n -

NUCOAL RESOURCES LIMITED

Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

Office of the Registry
  Sydney  No S206 of 2014

B e t w e e n -

CASCADE COAL PTY LIMITED (ACN 119 180 620)

First Plaintiff

MT PENNY COAL PTY LIMITED (ACN 139 010 209)

Second Plaintiff

GLENDON BROOK COAL PTY LIMITED (ACN 139 009 000)

Third Plaintiff

and

THE STATE OF NEW SOUTH WALES

Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 14 AUGUST 2014, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR W. SOFRONOFF, QC:   May it please the Court, I appear for NuCoal Resources Limited, the plaintiff in matter S138/2014, with my learned friend, MR G.J.D. DEL VILLAR.  (instructed by Quinn Emanuel Urquhart & Sullivan)

MR G.E.S. NG:   May it please the Court, I appear with my learned friend, MR B. LIM, for the plaintiff in S119/2014, and for all three plaintiffs in S206/2014.  (instructed by Yeldham Price O’Brien Lusk Lawyers and TressCox Lawyers)

MR M.G. SEXTON, SC:   If the Court pleases, I appear with my learned friends, MR S.J. FREE and MS Z.C. HEGER, for the defendant in each of the matters.  (instructed by Crown Solicitor (NSW))

HIS HONOUR:   Yes.  Well, there seems to be a measure of agreement as to how matters should proceed.

MR SOFRONOFF:   Yes, your Honour.  We have agreed directions.  Could I hand up two copies of a draft order in our matter, the NuCoal matter?

HIS HONOUR:   Yes.

MR SOFRONOFF:   But for one direction in our matter, I think the other proceedings will follow the same regime.  The peculiar part of ours is direction number 2, where we are to file an amended statement of claim in a week.

HIS HONOUR:   Yes.  I noticed that you do not have any facts at the moment that engage the Copyright Act question.  You may give some attention to that.

MR SOFRONOFF:   Yes.

HIS HONOUR:   Very well.  I am currently not disposed to make any order about the proceedings proceeding at this stage by way of special case, but rather let the agreement between the parties develop, and I am inclined to want to see a draft of the special case before it is filed.  So I would be disinclined to make direction 1.  I would prefer to see the pleadings completed before a special case is prepared.  So what I would be inclined to do would be to give you order 2, to give you order 4, making that ‑ renumbering it order 2, perhaps bringing proposed order 5 forward by a couple of days, and then after that have, on 12 September, or on or before 12 September, the plaintiff file a draft of any agreed special case.

MR SOFRONOFF:   What day did your Honour have in mind for order 5 for the reply?

HIS HONOUR:   It really does not matter, whatever is ‑ ‑ ‑

MR SOFRONOFF:   Yes.

HIS HONOUR:   A couple of days before 12 September, I think.

MR SOFRONOFF:   Yes, we will work it out, your Honour.

HIS HONOUR:   Then I would list the matter for directions before me in Sydney.  I think the 18th is not a day when I would be available, but I could do it on the 17th if that was convenient to all parties.

MR SOFRONOFF:   Thank you, your Honour.

HIS HONOUR:   Now, they are the directions I would be prepared to make in your matter, Mr Sofronoff.

MR SOFRONOFF:   I have no submissions to make about that, your Honour.

HIS HONOUR:   Yes.  Mr Ng, if I make equivalent directions in your matters, save for the ‑ there is no need in your matter for any amendment to your pleading, I think.

MR NG:   Not as we anticipate it, no.

HIS HONOUR:   Mr Solicitor?

MR SEXTON: There is no problem about that with us, your Honour.

HIS HONOUR:   All right.  In the NuCoal Resources matter, No S138/2014, I make the following directions:

1.On or before 22 August 2014, the plaintiff file an amended statement of claim.

2.On or before 29 August 2014, the defendant file and serve a defence to the plaintiff’s statement of claim.

3.On or before 10 September 2014, the plaintiff file and serve any reply to the defence.

4.On or before 12 September 2014, the plaintiff file and serve a draft of any agreed special case.

5.The proceedings be listed for further directions before me in Sydney on 17 September 2014.

Those are the directions I make in NuCoal Resources.  In the other two matters ‑ ‑ ‑

MR SOFRONOFF:   Excuse me, your Honour, and over the page we have liberty to apply in costs in the cause.

HIS HONOUR:   Yes, I will add those, thank you.  In the other two matters I make equivalent directions, save for the first.  The Court will now adjourn.

AT 10.07 AM THE MATTERS WERE ADJOURNED