Forrest & Forrest Pty Ltd and Wilson

[2017] HCATrans 14

[2017] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P59 of 2016

B e t w e e n -

FORREST & FORREST PTY LTD

Appellant

and

STEPHEN McKENZIE WILSON

First Respondent

YARRI MINING PTY LTD

Second Respondent

QUARRY PARK PTY LTD

Third Respondent

ONSLOW RESOURCES LTD

Fourth Respondent

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON MONDAY, 6 FEBRUARY 2017, AT 2.58 PM

Copyright in the High Court of Australia

____________________

MR S.K. DHARMANANDA, SC:   If it please your Honour, with MR A.J. PAPAMATHEOS, I appear for the appellant.  (instructed by Mizen & Mizen)

MR P.D. QUINLAN, SC, Solicitor‑General for the State of Western Australia:   If your Honour pleases, there is a submitting appearance from all the respondents, and I appear at the invitation of the Court for the Attorney‑General for Western Australia.  (instructed by State Solicitor’s Office)

HIS HONOUR:   Thank you, Mr Solicitor.  When you say you appear at the invitation of the Court, Mr Solicitor, the thought was that you may play some active role in the appeal.

MR QUINLAN:   Yes.

HIS HONOUR:   Have you taken a position on that?

MR QUINLAN:   Yes, and I have sought instructions in relation to that, sir.  The position in relation to the State is that we had not sought to intervene in the proceedings as not having a partisan interest in the outcome, but in light of the fact that there are no proper contradictors before the Court I have instructions that the Attorney‑General would be prepared to appear through counsel as amicus curiae at the hearing of the full appeal to make submissions as to the proper construction of the Act and raise any issues that might be made against the submissions made by the appellant.

HIS HONOUR:   Yes, thank you.  There is a thought that the matter might be listed as early as 31 March.  Is that a date that would be capable of being met by you?

MR QUINLAN:   I am just looking at my diary at the moment, sir.  If it were listed for 31 March, that would presently be a date that is available to me, sir.

HIS HONOUR:   Now, I had in mind directing you to file submissions on 27 February with a reply on 10 March.  Would 27 February cause any difficulty for you?

MR QUINLAN:   I do have a matter that concludes ‑ and it is in Darwin – that concludes on 24 February, so I was going to propose the date of 1 March which is two days after that proposed by your Honour, and that could be easily accommodated.

HIS HONOUR:   Yes.  Thank you, Mr Solicitor.

MR QUINLAN:   Thank you, sir.

HIS HONOUR:   Mr Dharmananda, I have looked at your written submissions and I note that you are seeking costs against the second, third and fourth respondents.

MR DHARMANANDA:   Yes, your Honour.

HIS HONOUR:   Will you be pressing that?

MR DHARMANANDA:   Yes, your Honour.

HIS HONOUR:   All right.  I note that the form of submitting appearance that has been filed on behalf of the second, third and fourth respondents submits to any order the Court may make in the matter, save as to costs.

MR DHARMANANDA:   Yes, your Honour.

HIS HONOUR:   It strikes me that it might be useful to hear from those respondents as to costs, at least in writing, in advance of the hearing before the Full Court.

MR DHARMANANDA:   Yes, your Honour.

HIS HONOUR:   So I will propose to make directions to facilitate the filing of submissions by those respondents as to costs.

MR DHARMANANDA:   Yes, your Honour.

HIS HONOUR:   The orders and directions I propose to make are as follows.  I will read them out and allow you to comment, if you wish:

1.The Attorney‑General of Western Australia have leave to appear amicus curiae.

2.        On or before Wednesday, 1 March:

(a)the Attorney‑General file and serve written submissions in accordance with Part 44 of the High Court Rules and a list of authorities in accordance with Practice Direction No. 1 of 2013;

(b)the second, third and fourth respondents file and serve any written submissions they choose to make as to costs.

3.On or before Friday, 3 March, the appellant file and serve appeal books in accordance with Rule 42.13.

4.On or before Friday, 10 March, the appellant file and serve written submissions in reply in accordance with Part 44.

5.As soon as practicable, the appellant serve a copy of these orders and directions on the solicitors for the second, third and fourth respondents.

MR DHARMANANDA:   Yes, your Honour.  We have no comment on those orders, your Honour.

HIS HONOUR:   All right.  Mr Solicitor?

MR QUINLAN:   Those orders seem appropriate, in our respectful submission.

HIS HONOUR:   Very well.  Well, I will not read them out again.  I hope they make sense on the transcript.  Those are the orders that I now make.

MR DHARMANANDA:   Your Honour, may I raise one matter?

HIS HONOUR:   Yes, of course.

MR DHARMANANDA:   Mr Myers is leading me in this matter and your Honour indicated that you were thinking of 31 March.  That date is convenient to Mr Papamatheos and myself, but I am not sure about Mr Myers today about that date.

HIS HONOUR:   Yes.  All right, it might be your big day out, Mr Dharmananda.

MR DHARMANANDA:   It may, your Honour.  Thank you.

HIS HONOUR:   The Court will now adjourn.

AT 3.06 PM THE MATTER WAS ADJOURNED