Frederick Chetcuti and Commonwealth Of Australia

[2020] HCATrans 176

[2020] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M56 of 2020

B e t w e e n -

FREDERICK CHETCUTI

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 29 OCTOBER 2020, AT 10.28 AM

Copyright in the High Court of Australia

MS G.A. COSTELLO, SC:   May it please the Court, I appear with MR A. ALEKSOV and MS K.E. SLACK, for the plaintiff.  (instructed by Lawson Bayly)

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MS Z.C. HEGER, for the Commonwealth.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you both for the outlines of submissions that you provided to me.  Could I ask you this?  Is it the sort of thing that would be capable or appropriate to determine by a single Justice of the Court rather than referring immediately to the Full Court?  Or is it the wish of both of you that it go directly to the Full Court?

MS COSTELLO:   Your Honour, our request is that it goes to the Full Court.  I could seek some instructions if that might change in response to your question.  But, obviously, your Honour, there is a course of authorities that your Honour is familiar with, culminating in the recent case of Love and Thoms in which various Justices take competing views in respect of when it is that, for example, the Crown of Australia became separate from the Crown of United Kingdom, and because it has not been considered in a way that means that question is settled, it is appropriate for a Full Court to determine the question, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Lenehan.

MR LENEHAN:   Your Honour, I think our position is that if your Honour is minded to refer it to a Full Court we do not seek to be heard against that submission.  On the other hand, if your Honour thinks it is capable of being determined by a single Justice we would be happy for that course also.  We had in mind that if your Honour was against Ms Costello that it may be appropriate to determine it under rule 28 but I am not sure that that is the course your Honour has in mind.

HIS HONOUR:   It was not.  Two things are really informing my question.  First, it is going to be some considerable time, I think, before the Full Court would be able to deal with the matter and given that Mr Chetcuti is detained that is a relevant consideration.  Secondly, whilst it does not immediately strike me as the sort of matter that should be disposed of on the papers in the way that you suggest, Mr Lenehan, it seemed to me it is a matter in which you have both now done so much work and are so far advanced in your preparation that it would be capable of being heard by me as a single Justice within the relatively near future.  That is really where I am.

MS COSTELLO:   Your Honour, as you will have seen from the papers, our client is 75 years old and he is impecunious and, therefore, speed is certainly in the interests of justice and in his interests, so if your Honour were able to determine this matter more speedily that would certainly be something we would give full consideration to.

HIS HONOUR:   Yes.  Mr Lenehan, just so I understand, the Commonwealth would not be opposed to me dealing with the matter as a single Justice?

MR LENEHAN:   Yes.  Your Honour, I am just confirming that that is so.  I believe that is our position but Ms Heger is just checking with my instructing solicitor.

HIS HONOUR:   Thank you.

MR LENEHAN:   Yes, I am instructed we would not oppose that course, your Honour.

HIS HONOUR:   Right.  Now, can I ask you this, counsel.  Given the submissions that you have already put in is there anything further that you need to give in writing before we have an oral hearing?  Ms Costello?

MS COSTELLO:   Yes, your Honour.  These submissions were targeted in particular to the question that the Court had asked us about whether authority was settled.  There are some other things we would like to say.  It is not terribly much more but there are some other things we would like to put in writing for your Honour and we had proposed to do so by 18 November, but if you would like us to do it sooner we can march to a different tune.

HIS HONOUR:   I think if I am going to do it, it is going to have to be sooner because I will not be here after 30 November.  We really would have to speed it up a bit if this were to be achievable.  That is to say, I would be looking towards your further submissions early to mid‑next week and Mr Lenehan’s to follow in a similar sort of order, hopefully by about the end of the week or beginning of the new week with a view then to having a hearing early in the following week.

MS COSTELLO:   Yes, your Honour, we can make that work.

HIS HONOUR:   All right.  Mr Lenehan, would that work for you?

MR LENEHAN:   Your Honour, it would.  I am told we would want in the order of 20 pages, so it sounds as though our argument may be somewhat substantial.  We will, of course, be wanting to see what Ms Costello puts.

HIS HONOUR:   I am sorry, could you turn your volume up a little.  I just cannot hear you.

MR LENEHAN:   I am so sorry, your Honour.  I am just trying to ‑ ‑ ‑

HIS HONOUR:   That is great, thank you.

MR LENEHAN:   Your Honour can now hear me.  Your Honour, I am told two things.  First, we can do that…..We would be looking to…..and I am also told that we would want in the order of 20 pages.  Is your Honour still having problems hearing me?

HIS HONOUR:   Yes, about every fifth word drops out for some reason.

MR LENEHAN:   Your Honour, should I log back out and log back in again?

HIS HONOUR:   No, let us try – it is mostly pretty good.  I understand that you want 20 pages of submissions, or more than that?

MR LENEHAN:   Twenty, your Honour.

HIS HONOUR:   Twenty.  Yes, all right.  If I, Ms Costello, direct that you file and serve any further written submissions not to exceed 20 pages in total by 4.00 pm on 2 November, is that too tight?

MS COSTELLO:   No, your Honour, we can do that.

HIS HONOUR:   Thank you.  Mr Lenehan, if you could then file and serve your submissions, again not more than 20 pages in length, by 4.00 pm on 5 November.

MR LENEHAN:   Your Honour, I apologise, I am just seeking instructions as to whether that is possible…..

HIS HONOUR:   Yes, of course.

MR LENEHAN:   Your Honour, might we ask for an indulgence and ask for the sixth.  We have difficulties in terms of consulting with the Solicitor‑General and in getting instructions before that time.

HIS HONOUR:   All right.  I will make yours then by 4.00 pm on 6 November.

MR LENEHAN:   Thank you, your Honour.

HIS HONOUR:   Ms Costello, can you do any reply by 9 November?

MS COSTELLO:   Yes, your Honour.

HIS HONOUR:   Very good, thank you.  Then the plaintiffs to file and serve any reply by 4.00 pm on Monday, 9 November.  And I will set the matter down for hearing before me in Melbourne, albeit by remote control, on Tuesday, 10 November.  Does that suit counsel?

MS COSTELLO:   Your Honour, if I could just have a moment to check with my colleagues as to that ‑ ‑ ‑

HIS HONOUR:   Yes.

MS COSTELLO:   Yes, your Honour, 10 November is satisfactory – sorry, the date that you mentioned was 10 November, your Honour; that is satisfactory for us.

HIS HONOUR:   Thank you both.  I will do that, subject to this, that because of the need to proceed by video link it may be that we might be able to start at 9 o’clock or 10 o’clock on 10 November but for the time being we will proceed on the basis that it will begin – the hearing will begin at 10.00 am on 10 November, subject to contrary direction which might follow.

MS COSTELLO:   May it please the Court.

HIS HONOUR:   The reply, of course, should not exceed five pages.

MS COSTELLO:   Yes, your Honour.  The other matter that was proposed in the consent orders was to file the special case book which would contain the annexures referred to in the agreed special case, your Honour.

HIS HONOUR:   Yes.

MS COSTELLO:   Would that be a direction you would make?

HIS HONOUR:   Well, it would be helpful, I think.  When should it go in?

MS COSTELLO:   The proposed order was 4 November.

HIS HONOUR:   Yes.

MS COSTELLO:   But perhaps 2 November would be more appropriate in the circumstances, your Honour.

HIS HONOUR:   Very well, then the parties are to file the special case book by 4.00 pm on 4 November – I should say 2 November.  Thank you.  Mr Lenehan, anything further from you?

MR LENEHAN:   No, your Honour.  Thank you, your Honour.

HIS HONOUR:   Thank you both, I will make directions in those terms.  Adjourn now.

AT 10.39 AM THE MATTER WAS ADJOURNED