Gerner & Anor v The State of Victoria

[2020] HCATrans 171

[2020] HCATrans 171

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

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2020, AT 3.00 PM

Copyright in the High Court of Australia

MR M.D. WYLES, QC:   If your Honour please, 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:   If the Court pleases, I appear with MR T.M. WOOD for the defendant.  (instructed by Victorian Government Solicitor’s Office)

HER HONOUR:   Yes, Mr Wyles, the position would seem to be that the submissions that were filed in support of the application for expedition included a suggestion at paragraph 5 of indications of agreement in relation to a special case, but I understand that has not come to fruition and, in any event, the timetable that you proposed is – events have overtaken somewhat.  So, what is your submission concerning the future conduct of the matter?

MR WYLES:   Your Honour, it is difficult to impress the urgency that emanates from Victoria about this matter and we would be urging upon the State, your Honour, as we have indicated to them, if we could have their defence, or if it is going to be a demurrer, and we would like to negotiate a special case with them at the earliest opportunity.  We had suggested that it would be possible to have a defence or a demurrer by next Monday or Tuesday and that would still allow us time to complete our substantive submissions and if we could negotiate the special case.

We disagree with our learned friends that this case has any similarity to the Palmer matter.  It is not a section 92 case as such.

HER HONOUR:   Can I just clarify that, Mr Wyles?

MR WYLES:   Yes, your Honour.

HER HONOUR:   It seems that ‑ just turning to your statement of claim, you ‑ in paragraph 23(iv) there is an alternative claim based on section 92.  It was difficult to find in the pleading quite the basis upon which that alternative is advanced.

MR WYLES:   Yes, we are only putting section 92 as a basis for the freedom as an adjunct.  So, the intra‑State movement is an adjunct to the freedom which is guaranteed by section 92.  One cannot move to the border without having that freedom of travel, or freedom of movement prior to crossing the border, your Honour.

HER HONOUR:   I understand.

MR WYLES:   That is the manner in which it is put.  So this is not a case where – we are in some disagreement with my learned friend, unfortunately, because insofar as if we were to get to – if I could put it this way – the proportionality question, the third question, your Honour, as the Court has…..then it is really a matter of the evidence that the State wants to put on and we do not see ourselves being in a position or desiring to disagree with the evidence.  We actually just want the Court to look at the legislation; alternatively, to look at the directions which have been made, and our argument will be, your Honour, that on their face the directions cannot satisfy the test which has been set.

HER HONOUR:   Yes, I see.  So, the contention, Mr Wyles, just so I understand it, is that if one turns, for example, in the pleading to paragraph 25, the contention is that the lockdown directions are not reasonably appropriate and adapted to serve any legitimate purpose compatible with the maintenance of the constitutionally proscribed system of federation. 

MR WYLES:   Yes, your Honour.

HER HONOUR:   Alternatively, the proscribed system of representative and responsible government, and that question, you say, can be determined without facts other than the facts pleaded in the statement of claim.

MR WYLES:   Or such facts as the State may wish to include in a special case.  If the State wishes to put on facts which it says it can point to as being the basis of a proportionality argument, then the State can put those facts on and, of course, we would then need to deal with those facts.  But we do not have any knowledge, your Honour, of why the declarations have been made or why people have been, effectively, restrained to their homes but for two hours a day during this period.  They are matters that are known to the State. 

HER HONOUR:   But, Mr Wyles, if the matter is to proceed by way of a special case, it needs to be agreed.

MR WYLES:   Yes.

HER HONOUR:   Perhaps, Mr Wyles, I will take some matters up with Ms Walker and then I will come back to you.

MR WYLES:   Yes.

HER HONOUR:   Ms Walker, you say that you wish some time to consider whether to demur to the statement of claim.  I do note that, I think, you have been in possession of the statement of claim since Monday.  How

much longer is it going to take Victoria to determine whether or not to demur?

MS WALKER:   Your Honour, it is slightly complicated by the fact that it is possible it may be that the State would wish to both demur and put on a defence.  If that is the case, the defence would require the pleading out of a variety of facts relating to COVID‑19 and the operation of the directions, in a similar way, we would say, to the way the matter was ‑ ‑ ‑

HER HONOUR:   I am sorry, Ms Walker, it is just that we seem to be having some difficulty.  I do not know about at your end, but Mr Wyles has just dropped out.  Now he has reappeared.  Mr Wyles, are you able to hear Ms Walker?

MR WYLES:   Yes, I can, your Honour.  Thank you.

HER HONOUR:   I am sorry, do go on, Ms Walker.

MS WALKER:   Thank you, your Honour.  Yes, the proposition being – I see, we seem to have lost Mr Wyles again.

HER HONOUR:   Yes.

MS WALKER:   I wonder if he might turn his video off, that might enable him to hear me while he is not addressing, your Honour?

HER HONOUR:   I will just inquire.  Mr Wyles, can you still hear us?  I think the problem may be somewhat more profound.

MS WALKER:   Yes, your Honour.

HER HONOUR:   Ms Walker, I am going to take a brief adjournment and we will see if we can fix it.

MS WALKER:   Certainly, your Honour.

AT 3.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.15 PM:

MR WYLES:   I apologise, your Honour, I hope that has fixed the problem. 

HER HONOUR:   Not at all, Mr Wyles, let us see how we go.  Yes, Ms Walker.

MS WALKER:   Yes, your Honour.  I was attempting to explain to your Honour why it is that some time is needed for the State to resolve what approach it might take to the statement of claim, and that is because it is – there are effectively three possibilities.  One is a demurrer simpliciter, the other is a defence simpliciter, and the third one is a defence and demurrer, and in order to resolve which of those approaches is the preferable approach it is necessary for the State to consider in some detail what it would need to plead in any defence.  So it is not simply a matter of in some abstract way resolving what is the preferable course.  It is necessary for the State to turn its mind to the contents of any defence that it might wish to put on. 

So, of course the State - your Honour is quite right.  The State has had the statement of claim since Monday and the State has been giving consideration to those matters, but at present I do not have instructions on which course the State would seek to adopt, and that really is the reason because it is not necessarily a question to be answered without some consideration of what would be involved in putting on a defence. 

I probably cannot put it more highly than that, your Honour, but what we have sought is really just the one further week from today.  So that we would file and serve either a defence or a demurrer or both by Friday, 23 October. 

I am not sure if your Honour wished to hear from me about the potential for agreeing a special case, but I would perhaps note that, of course, if a demurrer is put on and a demurrer referred to a Full Court, then there would be no need for a special case. 

HER HONOUR:   Indeed.

MR WYLES:   We understand that. 

HER HONOUR:   Indeed.  If serious consideration is being given to a demurrer in relation to this pleading, then the timetable that the plaintiffs initially proposed would be feasible were, for example, that decision to be made by Tuesday of next week and, were that the case, the Court would be in a position to list the matter in the November sittings. 

Now, there would seem to be some desirability to that outcome, if it be the case that the State is minded to demur to the claim.  I wonder, Ms Walker, if I were to put the matter over to, say, Tuesday of next week, would you be in a position to know by Tuesday the position that the State will take, because if it is to be a demurrer then I think we can proceed on the basis.  The plaintiffs get their expedition and the matter can be resolved at the earliest opportunity. 

MS WALKER:   I am sure I can prevail upon those instructing me, your Honour, to provide me with instructions by Tuesday.

HER HONOUR:   Excellent.  Mr Wyles, is there anything further you wish to put?

MR WYLES:   I do not wish take up your Honour’s time.  It seems to me we have a way forward, with respect.

HER HONOUR:   Well, now, what suits you?  Ms Walker, if I were to list the matter at 9.30 on Tuesday, is that somewhat early for you in terms of finalising your instructions?  I could put it on at 2.00 pm or 3.00 pm, if that were the preferred course.

MS WALKER:   I think 2.15 might be preferable, if I could just have that.  I presume your Honour does not have in mind that we would necessarily file the demurrer on that day?

HER HONOUR:   No.  I would hope that it could be filed shortly thereafter, because what I have in mind is a shortened timetable with a view to the matter being listed for hearing in the November sittings.  The date I have in mind is Friday, 6 November.

MS WALKER:   Your Honour is considering just one day for the hearing?

HER HONOUR:   If the matter proceeds on a demurrer one would have thought one day might – I appreciate there is a novel dimension to aspects of the claim.  It would be possible for the matter to then go over to the Monday morning, if need be, Ms Walker, but that is not an open invitation.

MS WALKER:   Well, perhaps I should indicate, your Honour, that some consideration is being given to what number of grounds might be taken in relation to any demurrer and, further, of course that we would expect a number of interveners in relation to the question of the implied freedom of movement that is alleged in paragraph 23.  If one takes into account interveners, my submission is that a day would be optimistic, your Honour.

HER HONOUR:   Yes, I hear that, Ms Walker.  Very well.  Now, Mr Wyles, do I take it 2.15 would be convenient to you on Tuesday of next week?

MR WYLES:   We will make it convenient, your Honour.

HER HONOUR:   Thank you, Mr Wyles.  I will stand the matter over for further directions to 2.15 on Tuesday of next week.

AT 3.21 PM THE MATTER WAS ADJOURNED