Farm Transparency International Ltd & Anor v State of New South Wales

[2021] HCATrans 151

[2021] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S83 of 2021

B e t w e e n -

FARM TRANSPARENCY INTERNATIONAL LTD ACN 641 242 579

First Plaintiff

CHRISTOPHER JAMES DELFORCE

Second Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON MONDAY, 27 SEPTEMBER 2021, AT 9.28 AM

Copyright in the High Court of Australia

HIS HONOUR:   Gentlemen.  In accordance with the Court’s protocol when sitting remotely, the record will show that I am sitting in Brisbane and I will announce the appearances for the parties.

MR A. ALEKSOV appears for the plaintiffs.  (instructed by Bleyer Lawyers Pty Ltd)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales appears with MR M.W.R. ADAMS for the defendant.  (instructed by Crown Solicitor’s Office (NSW))

HIS HONOUR:   Yes, Mr Aleksov.

MR ALEKSOV:   Good morning, your Honour.  I think the parties either late on Sunday or early this morning should have filed an agreed version of a draft special case.

HIS HONOUR:   Yes, I have that, and I have read it.  I am content to give the parties leave to refer it to a Full Court.  Can I just ask – and this is probably clear enough, but for the sake of making it sure and sure – it is clear, is it, that the case is concerned only with the use of devices installed in the premises of a farmer?  Is that right, Mr Aleksov?

MR ALEKSOV:   No, your Honour.  It would include mobile devices like a smart phone that are used on premises.

HIS HONOUR:   That are not actually installed in the premises?

MR ALEKSOV:   Yes, we think so.

HIS HONOUR:   So, you would be talking about recordings made from outside farm premises?

MR ALEKSOV:   Sorry, does your Honour mean the boundaries of land, or within the boundaries of land ‑ ‑ ‑

HIS HONOUR:   Yes.

MR ALEKSOV:   Okay.  No, it would only be within the boundaries of the land, but it could be outside a physical premises, like a shed or something.

HIS HONOUR:   Yes.

MR ALEKSOV:   We do not think it could relate to footage taken outside the boundary of the relevant farm.

HIS HONOUR:   Yes.  Does that accord with your understanding, Mr Solicitor?

MR SEXTON:   Yes, I think so, your Honour.  The relevant provision is section 8 of the legislation which talks about, in a sense, filming after entry onto premises.  Your Honour, the affidavits of the plaintiffs indicate that normally what their activities involve is entering into the premises and then filming, as my learned friend says, on the premises themselves – on the relevant land.

HIS HONOUR:   Yes.  Very well, that is fine.  Mr Aleksov, how long do you think the hearing will require?

MR ALEKSOV:   Between us and New South Wales, your Honour, I think a day would be sufficient, but one anticipates the possibility of interventions.

HIS HONOUR:   Mr Solicitor, what do you think?

MR SEXTON:   I think that is right, your Honour.

HIS HONOUR:   It does seem to be likely that the other States will have a sufficient interest to at least think very hard about intervening.  Given that possibility we probably should work on the footing that it may not finish in a day.

MR SEXTON:   I think that is right, your Honour.

HIS HONOUR:   Very well.  Mr Aleksov, is there anything more that you need to tell me?

MR ALEKSOV:   No, your Honour.

HIS HONOUR:   Mr Solicitor?

MR SEXTON:   No, I do not think so, your Honour.

HIS HONOUR:   Very well. Pursuant to rule 27.08 of the High Court Rules 2004 (Cth), I give leave to the parties to refer the questions of law identified in the special case agreed between them and filed on 27 September 2021 for the opinion of the Full Court. The parties must follow the directions of the Registrar to progress the matter to a hearing. I propose to reserve today’s costs. Is there anything further?

MR ALEKSOV:   Only the question of hearing dates, your Honour, but perhaps that is something we will take up ‑ ‑ ‑

HIS HONOUR:   I should mention this, Mr Aleksov, that it is at the moment unlikely that the matter will be able to be heard this year.  I am not saying that it certainly will not be, but the exigencies of the Court’s list are such that that seems to be unlikely and I am not in a position to speculate on what dates in the new year might be available.  The parties will have to take that up with the Registrar in due course and, really, it is to that end that I urge the parties to co‑operate with the Registrar in meeting the timetable as to submissions that you will receive from the Registrar.

MR ALEKSOV:   Thank you, your Honour.

MR SEXTON:   Your Honour.

HIS HONOUR:   As I say, today’s costs reserved. 

The Court will now adjourn.

AT 9.34 AM THE MATTER WAS ADJOURNED