Duncan v The State of New South Wales; Nucoal Resources Limited v State of New South Wales; Cascade Coal Pty Limited & Ors v The State of New South Wales

[2014] HCATrans 211

[2014] HCATrans 211

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 WEDNESDAY, 17 SEPTEMBER 2014, AT 9.01 AM

Copyright in the High Court of Australia

____________________

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

MR A.S. BELL, SC:   Your Honour, I appear with my learned friend, MR G.E.S. NG, for both Cascade Coal Pty Ltd and Mr Duncan.  (instructed by TressCox Lawyers and Yeldham Price O’Brien Lusk Lawyers)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS Z.C. HEGER, for the defendant in each matter.  (instructed by Crown Solicitor (NSW))

HIS HONOUR:   Mr Sofronoff, how are we going?

MR SOFRONOFF:   Your Honour, in the NuCoal matter the plaintiff and defendant have agreed a draft special case.  Could I hand up two copies?

HIS HONOUR:   Yes, certainly.  Thank you.  Now, I was provided, as you know, Mr Sofronoff, with an earlier draft.

MR SOFRONOFF:   Yes.

HIS HONOUR:   I see that – is it paragraph 40 – has been resolved.

MR SOFRONOFF:   There were two issues, I think, your Honour.  Paragraph 40 has been resolved.  It has disappeared.

HIS HONOUR:   Yes.

MR SOFRONOFF:   Paragraph 57 relates to a statement of facts to the effect that copyright in certain information was in NuCoal.  We are just working on the detail of that to get it right and I am told we expect to resolve that next week.  I do not think it will be controversial, but we need to put something before the defendant that is, on its face, clear and acceptable and we are just working on that point.

HIS HONOUR:   All right, and apart from that the special case is in a form, you say, that is appropriate to be referred to the Full Court?

MR SOFRONOFF:   Yes.

HIS HONOUR:   I will come back to that question in a moment.  Could we give some attention to the questions?

MR SOFRONOFF:   Yes, certainly, your Honour.

HIS HONOUR:   Question 1, I understand implicitly to raise only the questions of invalidity raised by the pleading, that is, the judicial power points.  I do not think we need to spell that out.  Question 2, what do the words “or otherwise invalid” add to it?

MR SOFRONOFF:   I suspect nothing, your Honour.  Could I just take a moment to think about that?

HIS HONOUR:   Of course.

MR SOFRONOFF:   The preceding clause covers it.

HIS HONOUR:   I think so and I think having those words may distract.

MR SOFRONOFF:   Yes.

HIS HONOUR:   Question 4 about the costs of the special case is a fairly standard question these days.  That is not a problem.  Do we need questions 3 and 5?  If you are successful in demonstrating to the satisfaction of the Full Court invalidity then obviously a form of declaratory relief would follow.  I think you may also seek in your writ injunctive relief.  I am not sure that that would be an appropriate question to put before the Full Court, that is the appropriateness of the precise form of relief.  Nor do I think it necessary, at the moment, that the Full Court be asked about costs in the proceedings generally.

MR SOFRONOFF:   I understand, your Honour.  I would be content, having regard to what your Honour said, to delete 3 and 5.

HIS HONOUR:   Yes.  You will give some thought to the words “or otherwise invalid”?

MR SOFRONOFF:   We can delete that, your Honour.

HIS HONOUR:   Right.  Now, can we take the matter very much further in circumstances where, as yet, I do not have an agreed document?

MR SOFRONOFF:   Your Honour, there is a very high level of confidence that we will sort out the facts necessary for paragraph 57.  Having regard to that, I wonder whether your Honour would be minded to approach the matter in this way:  that your Honour give some consideration to when the matter can be heard by the Court and if we succeed in delivering an agreed document by a date that your Honour specifies, some time next week, that the dates for hearing foreshadowed this morning could become concrete.

HIS HONOUR:   Yes.

MR SOFRONOFF:   I say that because the client is anxious to have the matter heard this year if that is at all possible.

HIS HONOUR:   I cannot give any indication as to the likelihood of that occurring.  The best we could do would be to produce an agreed timetable that would have the matter ready for hearing in the December sittings if it can be fitted in at that time.

MR SOFRONOFF:   Yes.

HIS HONOUR:   Is your estimate a day, two days?

MR SOFRONOFF:   It is two days because we expect interventions, having regard to the nature of the case.

HIS HONOUR:   Yes.

MR SOFRONOFF:   Also having regard to the nature, there would be a great deal of pressure upon the plaintiff and the defendant at least if it was only listed for a day having regard to the subject matter.

HIS HONOUR:   Yes, all right.  Thank you.  It may be convenient if I hear from Mr Bell at this stage.

MR BELL:   Yes, your Honour.  The situation is this.  In the Duncan proceedings a special case has been filed.

HIS HONOUR:   Yes, which I have seen.  Now, you have no doubt turned to your questions.

MR BELL:   Yes, your Honour.  We, working obviously on the assumption that any question of injunctive relief would, if invalidity were declared by the Full Court, then fall to be dealt with either as between the parties in light of the declaration or by a single Judge or a Judge to whom the proceedings were then remitted.

HIS HONOUR:   Yes.

MR BELL:   Just on that basis for that is obviously still alive, we accept what your Honour says and the appropriate thing would be to excise 3 and 5 and I think the words “or otherwise” in relation to the copyright are probably pleonastic.

HIS HONOUR:   You do not have that in your Duncan proceedings.  There is no copyright.

MR BELL:   Well, that is not in Duncan, of course.  No, that is in Cascade.  Of course, Mr Duncan does not ‑ ‑ ‑

HIS HONOUR:   I have not seen a Cascade special case.

MR BELL:   No.  Your Honour, the official Cascade special case is that it is agreed and ready to be filed this morning.  We apologise not having it.  We tried to get it in late yesterday afternoon but we were too late, but it is resolved.  There are no outstanding issues.  That, of course, does have the copyright issue in it and it has those questions – the equivalent questions 3 and 5.

HIS HONOUR:   There is no outstanding issue so far as the identification of the copyrighted material is concerned?

MR BELL:   No, that is so.  So we do not have the issue Mr Sofronoff has, but which he is confident of resolving.

HIS HONOUR:   Yes. 

MR BELL:   So we too – and I speak for both my clients – as was Mr Sofronoff’s client, are keen to have the matter prepared with a view to, if possible, subject to the Court’s convenience and ability to fit it in, heard in the December sittings.  We think that is achievable in terms of a timetable.  We do anticipate at least most of the States will intervene.  Whether the Commonwealth has an interest is not immediately clear.  It may have an interest in the copyright issue, for example.  It may have a less direct interest in the constitutional question, but of course it has an entitlement – it would have an entitlement to intervene if it – I do not think we have indication from the Commonwealth of its intention, but our estimate would be up to two days as well.

HIS HONOUR:   All right, thank you.

MR SOFRONOFF:   Your Honour, could I mention one matter – two matters that I should have mentioned?  One is that there has been filed an affidavit of Megan Etcell on 24 July which is in support of the expedition of the hearing and your Honour need not look at it now, but it is there showing reasons why the plaintiff in the NuCoal matter is seeking a quicker hearing. 

The second matter is this.  In the event that we do not sort out the copyright issue, as I have foreshadowed we would, we, I think, would be prepared to abandon that part of our case because that aspect of the matter is

alive in the other case and if it succeeds in that case, well, accordingly relief can be sought in another court on another date in relation to my client’s documents.  So if we fail in what I think we will not fail in, in finalising the special case in relation to copyright, I would expect that rather than risk not having the matter heard this year if it can be we would abandon that.

HIS HONOUR:   Yes, I understand that.  Thank you.  Mr Solicitor.

MR SEXTON:   I do not think there is anything for me to add, your Honour.

HIS HONOUR:   Very well, I have done some drafting and I will provide you with a set of draft directions in the Duncan matter which are in a fairly standard form.  I anticipated some appropriate amendments to the questions.  You will see that the dates are left blank.  Can I leave these directions with the parties for the moment and could we come back a little later in the morning – not very much later in the morning – and make directions in equivalent form in each matter?

MR SOFRONOFF:   Do I understand correctly from what your Honour said earlier that there is really no prospect of having the matter listed in the November sittings of the Court?  That will affect our directions.

HIS HONOUR:   That is a realistic position to take, yes.

MR SOFRONOFF:   Thank you, your Honour.

HIS HONOUR:   All right, what would be an appropriate time to stand these matters down?

MR SOFRONOFF:   Up to half an hour, your Honour – 15 minutes to half an hour.

HIS HONOUR:   Yes.  Well, I will deal with the next matter.  I think I will give you a fixed time to come back.

MR BELL:   Can your Honour make it 20 to 10?

HIS HONOUR:   Yes, I will relist ‑ ‑ ‑

MR BELL:   I think that will be plenty ‑ ‑ ‑

HIS HONOUR:   Yes, 20 to 10 this morning.

MR BELL:   Thank you, your Honour.

AT 9.14 AM SHORT ADJOURNMENT

UPON RESUMJING AT 9.40 AM:

MR SOFRONOFF:   Your Honour, could I hand up a copy of the draft document that your Honour passed to the parties in the Duncan matter?

HIS HONOUR:   Yes.

MR SOFRONOFF:   I have changed the title to NuCoal and otherwise put in dates which are agreed between the parties and which dovetail in each of the three matters, except that our special case, of course, is yet to be filed.

HIS HONOUR:   Yes, very well.  The first paragraph would still need to be a referral for the consideration of the Full Court or are you suggesting that I should have some concern about the special case being filed?

MR SOFRONOFF:   No, no, your Honour should not have any concern about that.  It will be filed on 26 September.

HIS HONOUR:   Yes.

MR SOFRONOFF:   With the copyright facts in it, or the copyright aspect deleted.

HIS HONOUR:   Yes.  So if I were to – I see, you have made that decision now.

MR SOFRONOFF:   We do not want to risk putting any impediment into the way of having it heard this year.

HIS HONOUR:   Yes.  Then I can make paragraph 1 – bear with me a moment – yes, I can make paragraph 1 “Upon the plaintiff filing a special case pursuant to rule 27.08 on or before 4.00 pm on 26 September 2014, the special case be referred for consideration by the Full Court”.

MR SOFRONOFF:   Thank you, your Honour.

HIS HONOUR:   With that amendment I make directions in accordance with the document handed to me this morning which I will initial and place with the papers.

MR SOFRONOFF:   Could I trouble your Honour for us to obtain a photocopy of that after your Honour adjourns so that we have it in that form?  We only had one copy of it in that form because your Honour handed them out.

HIS HONOUR:   Yes.

MR BELL:   Your Honour, we, in the Duncan Case and the Cascade Coal, the same dates are agreed so they are all in alignment.  We had a set of short minutes in Cascade.  I do not know if your Honour needs a formal document to make the same directions or ‑ ‑ ‑

HIS HONOUR:   Would it be best if I read onto the transcript the directions and then they can be the directions in each of the matters?

MR BELL:   Certainly, your Honour.

HIS HONOUR:   Yes, all right.  Mr Solicitor, is that a course you are content with?  In each of the three matters I suppose paragraph 1 can be identical - Mr Bell, filing a special case on or before 26 September?

MR BELL:   Yes.

HIS HONOUR:   The document is now agreed.  We are just talking about ‑ ‑ ‑

MR BELL:   The questions have different numbers in ‑ ‑ ‑

HIS HONOUR:   Of course, we are agreed as to what the questions will be.

MR BELL:   Yes, we are agreed.

HIS HONOUR:   I will delete any reference to the detail of the questions. 

In each of the three matters, that is Duncan v The State of New South Wales (S119/2014); NuCoal Resources Limited v State of New South Wales (S138/2104) and Cascade Coal Pty Limited and Ors v The State of New South Wales (S206/2014) I will make orders and directions in identical terms and they are as follows:

1.Upon the plaintiff – plaintiffs in the case of Cascade Coal Pty Limited – filing a special case pursuant to rule 27.08 on or before 4.00 pm on 26 September 2014, the special case will be referred for consideration by the Full Court.

2.Subject to any further or other direction, Part 44 of the High Court Rules 2004 (Cth) relating to written and oral submissions, with any necessary variations or adaptations, shall apply to the proceeding.

3.On or before 4.00 pm on 1 October 2014, the plaintiff or plaintiffs file 12 copies (including one unbound, unperforated copy) of the special case book and serve the special case book on the defendant.

4.On or before 4.00 pm on 22 October 2014, the plaintiff, and any party intervening or seeking to intervene in support of the plaintiff, file and serve written submissions of no more than 20 pages and a chronology annotated to refer to the pages of the special case book that contain relevant documents and agreed facts and evidence, together with a list of authorities in accordance with Practice Direction No 1 of 2013.

5.On or before 4.00 pm on 12 November 2014, the defendant, and any party intervening or seeking to intervene in support of the defendant, file and serve written submissions of no more than 20 pages and a chronology annotated to refer to the pages of the special case book that contain relevant documents and agreed facts and evidence, together with a list of authorities in accordance with Practice Direction No 1 of 2013.

6.On or before 4.00 pm on 24 November 2014, the plaintiff or plaintiffs file and serve written submissions in reply of no more than 5 pages annotated to refer to the pages of the special case book that contain relevant documents and agreed facts and evidence.

7.The costs be reserved.

They are the directions I make.  Thank you, the Court will now adjourn.

AT 9.47 AM THE MATTERS WERE ADJOURNED