H A Bachrach Pty Ltd v State of Qld

[1997] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B16 of 1997

B e t w e e n -

H.A. BACHRACH PTY LTD

Plaintiff

and

THE STATE OF QUEENSLAND

First Defendant

CABOOLTURE SHIRE COUNCIL

Second Defendant

KEYLIM PTY LTD

Third Defendant

For Directions

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 27 JUNE 1997, AT 9.31 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland:  If the Court pleases, I appear with MR R.W. CAMPBELL for the first defendant.  (instructed by the Crown Solicitor for Queensland)

MR I.D.F. CALLINAN, QC:   May it please the Court, I appear with MR J.C. SHEAHAN for the third defendant.  (instructed by Minter Ellison)  (Mr Sheahan did not appear in Court)

MR D.P. KEVIN:   Your Honour, I appear on behalf of the second defendant, the Caboolture Shire Council.  (instructed by King and Company)

MR E.J.P.F. LENNON, QC:   May it please the Court, I appear with MR R.M. DERRINGTON for the plaintiff.  (instructed by Phillips Fox)  (Mr Derrington did not appear in Court)

MR KEANE:   Your Honour, as the moving party on the demurrer, perhaps we should tell your Honour what has happened about that.

HIS HONOUR:   Yes.

MR KEANE:   The first thing is we gave section 78B notices on 5 June.  We have had no firm response but we have had indications that there is a likelihood that some of the States or the Commonwealth will seek to intervene or will intervene, but nothing firm as yet.  For our part, as your Honour appreciates, we have demurred.  As to that, and as to the directions we would seek in relation to that, our position would be that the practice direction is appropriate, save we would seek some alteration in the times.  We apprehend it applies to us as the moving party. 

We would propose that we provide our argument 15 working days before any date fixed for hearing, with the plaintiff to provide its argument 10 days before.  We anticipate that there is a likelihood that we would probably have something to say in replay and we would suggest five days before the hearing for that.

HIS HONOUR:   Yes.

MR CALLINAN:   Your Honour, we also have demurred and in very similar terms to the State of Queensland.  We would be content with such a timetable.

MR KEVIN:   Your Honour, the second defendant’s attitude is that no relief is sought against it and it wishes to simply abide by the decision of the Court in due course and if it could be excused, to that extent, from taking an active part in the proceedings.

HIS HONOUR:   That is a matter entirely for it, I think.  Yes, Mr Lennon.

MR LENNON:   We have nothing to add to what Mr Keane has said on behalf of his client, your Honour.  Those times are agreeable to us.

HIS HONOUR:   Mr Lennon, the reason why I wanted the matter mentioned this morning was because I was not at all sure of the basis on which the claim was based and, in particular, whether it gave any acknowledgment to the judgment of this Court in the BLF Case and whether there was any challenge being made to that.

MR LENNON:   We would have to deal with the BLF Case, your Honour, yes, but not seen as such as a challenge to it.

HIS HONOUR:   Could you give me a general outline of the way in which, in your submission, the legislation fails, without being bound to it for the purposes of the ultimate argument.

MR LENNON:   Your Honour, I think we would start with concentrating on what fell from the Court in Cable and we would extend the references in Cable’s Case to the circumstances of the present case.  We would be saying that for the State Government to focus on a party which is in the course of an appellate procedure leading into the High Court, and in the context of previous litigation in relation to the same topic which had led into the High Court, for the State Government to focus on that and pass legislation which made the outcome nugatory is inconsistent with an independent judicial system such as is contemplated by Chapter III.

HIS HONOUR:   Even though the cases in this Court show that ex post facto legislation in relation to pending matters does not offend Chapter III?

MR LENNON:   Those cases are cases of application of general law, not focused on a particular party.  The thing in this case that is singled out for specific identification is that the government, in passing the legislation, referred to the pendency of the proceedings and described the conduct of the appellate proceedings as frivolous and indicated a desire to punish the party for conducting proceedings in the courts, which might end up here, which it called frivolous because they were delaying the implementation of the

wishes of another party which the government wished to favour.  Now, all of that was said in the passage of the legislation.

HIS HONOUR:   In other words, the debates in the Parliament are to be referred to in order to identify the character of the law, is that the proposition?

MR LENNON:   Not solely as the source of the characterisation but permitted to be referred to for the purposes of identifying that characteristic that I have referred to.

HIS HONOUR:   Yes.  It seems to me that, in the light of that general indication of the way in which it is to be argued, it may be quite material to the intervening parties to know what it is that you propose to say.  I must say my present inclination is to suggest that the practice direction be varied by ordering the times to be at a much earlier stage, in other words that the action should be reduced to a written formula at the devising of the parties at this stage, so that the interveners can know what they have to meet.

MR LENNON:   I would not oppose that at all, your Honour.

HIS HONOUR:   Yes, very well.  Mr Keane and Mr Callinan, what do you say about having the written submissions of the moving parties within a relatively short time?

MR CALLINAN:    Your Honour, my client would be keen to see the matter disposed of as quickly as possible.

HIS HONOUR:   I cannot say that this is going to lead necessarily to an early hearing, particularly if it is necessary to have seven Justices sit, but none the less I think it would be useful to have the issues clearly displayed and particularly for the interests of the interveners who may or may not decide then to intervene.  How long would you like to have, Mr Callinan, for your submissions.

MR CALLINAN:   Twenty-one days, your Honour.

HIS HONOUR:   As you wish.  There is obviously plenty of time, but it should be done to have the issues exposed quickly.

MR CALLINAN:   We very much welcome any expedition of any part of the process, your Honour, and 21 days would be sufficient for us.

MR KEANE:   That is certainly sufficient for us, your Honour.

HIS HONOUR:   How long after that for you, Mr Lennon?

MR LENNON:   Twenty-eight days, your Honour.  The 21 would be in fact in order, but I have not spoken to my junior, Mr Derrington.  I know he is going away just now but he would be back before we receive the first wave of submissions, so 21 would be adequate, as far as I know.

HIS HONOUR:   We will make it 21 then. 

Then I will give a direction varying the practice direction so that the moving parties shall file and serve their written submissions within 21 days.  The respondent to the moving parties will file its written submission within a further 21 days.  Reply, if any, within 14 days after that.

MR KEANE:   Yes, your Honour.

HIS HONOUR:   Is there any other matter that can be of assistance at this stage?

MR KEANE:   No, your Honour.  Would your Honour reserve the costs?

HIS HONOUR:   Yes, and certify for counsel, I presume.

MR KEANE:   Thank you, your Honour.

HIS HONOUR:   Court will adjourn to a date to be fixed.

AT 9.41 AM THE MATTER WAS ADJOURNED