Gerner & Anor v The State of Victoria

[2020] HCATrans 172

[2020] HCATrans 172

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M104 of 2020

B e t w e e n -

JULIAN KINGSFORD GERNER

First Plaintiff

MORGAN’S SORRENTO VIC PTY LTD

Second Plaintiff

and

THE STATE OF VICTORIA

Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 20 OCTOBER 2020, AT 1.15 PM

Copyright in the High Court of Australia

MR M.D. WYLES, QC:   If your Honour pleases, I appear with MR R.F.R. PINTOS‑LOPEZ and MS S.C.B. BRENKER for the plaintiffs.  (instructed by Hamilton Locke)

MS K.L. WALKER, QC, Solicitor‑General for the State of Victoria:   Thank you, your Honour, I appear for the defendant with MS K.A. O’GORMAN and MR T.M. WOOD.  (instructed by Victorian Government Solicitor’s Office)

HIS HONOUR:   Thank you.  Ms Walker, I have the written submissions produced by your side today.  Mr Wyles, I take it you have seen these submissions?

MR WYLES:   Not only seen them, your Honour, we have resolved the statement of claim issues between the parties and we will be seeking leave ‑ ‑ ‑

HIS HONOUR:   That is a consummation most devoutly to be wished.

MR WYLES:   Sorry, your Honour.

HIS HONOUR:   That is a good thing.

MR WYLES:   Yes; I am sorry.  So we would seek leave to file and serve an amended statement of claim by 4.00 pm today.  Then, your Honour, the only other matter that arises is, from our point of view – we had originally proposed in a special case that there would be a question determined as to the validity of section 200(1)(b) and (d).  In Ms Walker’s proposal the only question that will be determined is the question of the implied freedom, whether it exists or not.  We were wondering whether, your Honour, it might not be more convenient for the Court to at least also consider the first question of invalidity.  It is a far more limited question than the directions question, if I could put it that way.

HIS HONOUR:   Just tell me what that question is.

MR WYLES:   Yes, your Honour.  We have originally – I am not sure whether your Honour has seen the draft special case which we have provided, which was ‑ ‑ ‑

HIS HONOUR:   I have.

MR WYLES:   Yes.  So if I take your Honour to the last page of that draft, page 10.

HIS HONOUR:   Yes.

MR WYLES:   So at page 10 your Honour will see paragraph 30 – subparagraph (b), your Honour.

HIS HONOUR:   All right.

MR WYLES:   That is the only matter we thought we should raise with the Court.

HIS HONOUR:   Yes, very well.  Ms Walker, what do you say about the idea of having a slightly more focused question in (b) as to the validity of these provisions, having regard to the question of whether they impermissibly burden the implied freedom of movement?

MS WALKER:   Your Honour, the difficulty we have in agreeing to a question of that kind, putting to one side the precise framing of the question, is that we do not yet know whether the Constitution contains any implied freedom and if it does the nature of that freedom and what the parameters of it might be in terms of whether there is some approach to what is reasonably justified, reasonable regulation, reasonably necessary, et cetera.  So, in our view, it is premature to move to that second question until the existence of the implied freedom has been resolved by the Court.  It is, of course, a novel claim and for that reason we have chosen to demur on that single ground. 

But, as your Honour would have seen, we also propose to file a defence, but that settles to be postponed so that at the moment the proposal from the State is that we will file a demurrer on that single ground, then the demurrer would be heard and determined and at that point one could then see what further steps might be necessary in the proceeding.

HIS HONOUR:   Yes.  Mr Wyles, I have to say, while I have an instinctive sympathy for your position in wanting to tie the case to a specific question as to the validity of a statute said to be inconsistent with the implied freedom, I must say that, given the urgency of the matter, I do think that perhaps sufficient unto the day would be the resolution of the implied freedom for which you contend.

Then it might just be more convenient thereafter to try to work out the implications of that for the validity of legislation and particularly to do so bearing in mind the iterative nature of the directions that we are all needing to come to grips with in order to ensure that we are dealing with a matter, rather than just some large academic question.

MR WYLES:   Yes, your Honour.  There is nothing academic in Melbourne at the moment, I can assure your Honour.

HIS HONOUR:   No, no, and I certainly understand that and that is why I say sufficient unto the day is the evil thereof.

MR WYLES:   Yes.

HIS HONOUR:   So that I think, Ms Walker, we will proceed on the footing that you have suggested.  Do you have a view as to how long the hearing will take?  The idea is we set it down for hearing on 6 November with the 9th being available in need.  Do we have an estimate as to times, Ms Walker?

MS WALKER:   I think if the single question as to whether the asserted implied freedom is to be found in the Constitution, if that is the only question before the Court then I think a day is likely to be sufficient.  I would, of course, say, as I said to her Honour Justice Bell, we would be expecting interveners, but for that single question it may well be that even with interveners a day would be enough, but certainly it would be prudent for the Court to retain the capacity to go over to the Monday if that became necessary.

HIS HONOUR:   Mr Wyles?

MR WYLES:   Yes, your Honour, we would not anticipate that more than a day would be required, even if, for example, the Commonwealth were to intervene and to speak to the matter.  In many senses, whilst the question is large, the scope is reasonably confined, if I could put it that way to your Honour, in terms of the principles and the uncovering within the Constitution of something that is required logically and practically to support the structure which has been created by the Constitution.

HIS HONOUR:   Yes. 

MR WYLES:   Can I just say, your Honour – I understand what your Honour says about the legislation.  Can I just make it clear to your Honour that the question of the validity of the legislation is a very different question to the validity of the directions themselves because the legislation is expressed in such bald terms ‑ ‑ ‑

HIS HONOUR:   Right.

MR WYLES:   ‑ ‑ ‑ and does not invite the same consideration.  It invites much more, your Honour, than a type of constitutional fact inquiry as the Court was engaged in in Unions NSW (No 2), if I might put it that way, as opposed to the type of detailed inquiry that the Court might feel is necessary

to deal with the directions that have been – in any event, I just thought it would help the Court to understand the difference in the case.

HIS HONOUR:   Yes, thanks for that.  I think we will stick with question 1(a).

MR WYLES:   Yes.

HIS HONOUR:   Then, Ms Walker, when do you anticipate being in a position to deliver the demurrer?

MS WALKER:   We would anticipate tomorrow, your Honour, on the basis that we would, I think, receive the amended statement of claim this afternoon.  If it would assist the Court, we have, between the parties, agreed some consent orders ‑ ‑ ‑

HIS HONOUR:   It would certainly assist.

MS WALKER:   Yes, and I will just call, perhaps, to those instructing me to send those through to the Court now.  While that is happening, could I perhaps just draw your Honour’s attention to some of the matters addressed towards the end of our written submissions in relation to the facts that the State would be taken to have admitted as opposed to conclusions of law and could I just indicate two matters in relation to those aspects of our submissions? 

I understand from discussions with Mr Wyles – and I am sure he will correct me if I am misrepresenting him in any way – but I understand that he is content to accept the propositions that we have outlined in paragraphs 22 and following.  So that we wanted to make sure, your Honour, is that there is no ambiguity or disagreement about the nature of the facts taken to be admitted for the purposes of the demurrer.

There will need to be some update to the particular paragraphs when the amended statement of claim is filed, but that does not alter the matters of principle that we have outlined there which is that the State says that various paragraphs of the statement of claim contain conclusions of law which we would not be taken to have admitted, but others, of course, contain facts which we would be taken to have admitted.

In addition, we would propose to annex to the demurrer the relevant directions that will be pleaded in the amended statement of claim to ensure that the Court has before it the necessary documents and facts that, in our view, will enable the Court properly to resolve the demurrer question.  As we said at the very last paragraph, 28 of our submissions, we think if the plaintiffs do have any different view, now is the time to articulate that

because it is necessary, I think, for the matter to proceed to the Full Court on an agreed basis.

HIS HONOUR:   Yes.  Mr Wyles.

MR WYLES:   Your Honour, we had understood that the law as to what is admitted upon a demurrer has been well established for some time.  It seems to be reflected in our learned friend’s submissions.  There is not much more we can say, your Honour.

HIS HONOUR:   Well, what you have just said and what is in paragraphs 22 to 28 of Ms Walker’s submissions are now on the record.

MR WYLES:   Yes.

HIS HONOUR:   I think that is probably as much as one can do, Ms Walker.

MS WALKER:   Yes, thank you, your Honour.  I am certainly content with that.

HIS HONOUR:   Very well.

MR WYLES:   I am not sure – sorry, your Honour.  I think we are pretty much agreed on a timetable.  I am not sure whether your Honour wants to be involved in that or whether we can just agree it.  There is one point that I was trying to cadge, if I might put it that way, your Honour, from my learned friend.  I have not been successful so far.  We had originally said we would put our submissions in by 4.00 pm this coming Thursday, the 22nd.  There has been, obviously, your Honour, some toing and froing and some time taken up.  If we could get a little bit more time until around the middle of the day on the following Friday, that would be very helpful and most appreciated.

HIS HONOUR:   I am sure we are all working backwards from 6 November.  That seems to be reasonable, Ms Walker?

MS WALKER:   Look, your Honour, we simply had adopted the date that the plaintiff had initially said they would file their submissions by, but if your Honour is content to allow an extra time to the Friday, we would not have any objection to that.  Might I inquire whether your Honour has now received the draft consent orders?

HIS HONOUR:   We will check.

MS WALKER:   Thank you, your Honour.  I think it just might be convenient for your Honour to see those orders to ensure that the Court is comfortable with the timetable that is being proposed.

HIS HONOUR:   What I might do is leave the Bench for a few minutes until we can obtain them and I can have a look at them.

MR WYLES:   Certainly.

HIS HONOUR:   Then I will come back and we will conclude the hearing.  The Court will adjourn for a few minutes.

AT 1.28 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.34 PM:

HIS HONOUR:   Mr Wyles, Ms Walker, I have those proposed consent orders and I am content with them.  The alteration in relation to the submissions, Mr Wyles?

MR WYLES:   Does your Honour have paragraph 7 – “12 pm on 23 October”?

HIS HONOUR:   Yes. 

MR WYLES:   That is agreed, your Honour.

HIS HONOUR:   …..

MR WYLES:   …..as we spoke.

HIS HONOUR:   Okay, excellent.  I will make orders in terms of the proposed consent orders, the draft of which I initial and place with the papers.  Is there anything further?

MR WYLES:   Not from our point of view, your Honour.

MS WALKER:   No, not from us, your Honour.

HIS HONOUR:   Thank you very much.

MR WYLES:   Thank you, your Honour.

MS WALKER:   Thank you, your Honour.

AT 1.35 PM THE MATTER WAS ADJOURNED