Ha & Anor v State of NSW & Ors- Walter Hammond & Ors v NSW

[1996] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S45 of 1996

B e t w e e n -

NGO NGO HA

First Plaintiff

SOKHIENG LIM

Second Plaintiff

and

STATE OF NEW SOUTH WALES

First Defendant

BRUCE BUCHANAN

Second Defendant

R. G. SMITH

Third Defendant

Office of the Registry
  Sydney  No S165 of 1996

B e t w e e n -

WALTER HAMMOND & ASSOCIATES PTY LIMITED

Plaintiff

and

STATE OF NEW SOUTH WALES

First Defendant

BRUCE BUCHANAN

Second Defendant

I.P. SMITH

Third Defendant

Directions hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 22 OCTOBER 1996, AT 9.33 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If your Honour pleases, in Ha and Lim I appear with my learned friend, MR B. GLENNON, for the plaintiffs.  (instructed by Doran, Roberts & Co)  In the other matter I appear with my learned friend, MR R.A. DICK, for the plaintiff.  (instructed by Glasheen & Quilty)

MR K. MASON, QC, Solicitor-General for the State of New South Wales:  If your Honour pleases, I appear for the defendants in each matter with my learned friend, MR M.J. LEEMING.  (instructed by I.V. Knight, Crown Solicitor for New South Wales)

MR H.C. BURMESTER:   If it please the Court, I appear for the Attorney-General of the Commonwealth in both matters.  (instructed by the Australian Government Solicitor)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:  May it please your Honour, I appear for the Attorney-General for the State of South Australia in both matters.  (instructed by the Crown Solicitor for the State of South Australia)

HIS HONOUR:   Mr Jackson.

MR JACKSON:   Your Honour, could I outline to your Honour the present position in the two matters first of all.  Could I deal first with Ha and Lim.  In relation to that case, your Honour has been sent, I think, a copy of a draft case stated and could I just say one thing about it.  There is one omission in the matter and paragraph 21, your Honour will see that it says:

The matters referred to in paragraph 20 -

that should be paragraphs 19 and 20.  With that amendment, we are agreed between ourselves on the terms of that being a draft case stated.

HIS HONOUR:   I must say I do not quite understand this draft case stated, Mr Jackson.  What, for example, if we start at the beginning, is the relevance of the Customs Act?

MR JACKSON:   Well, your Honour, it is purely a background matter and that is the only reason for putting it in there.

HIS HONOUR:   And what are the licence periods referred to in paragraph 1, having regard to the fact that there was no licence?

MR JACKSON:   Your Honour, that is purely a phrase - could I just say, your Honour, originally the draft had referred to just months.  That was taken out by agreement because it was thought better to tie it up to the terms of the various impositions sought to be imposed by reference to the licence periods as defined by the Act.

HIS HONOUR:   But the licence periods are defined by the Act in reference to those who have licences.

MR JACKSON:   Of course, your Honour, but what is simply sought to be done in that regard is to say that in respect of each of those periods where, if the Act were applicable, there would be a liability; that during each of those periods the two plaintiffs conducted operations of selling tobacco, in effect.

HIS HONOUR:   What is the relevance of paragraph 3?

MR JACKSON:   Your Honour, simply to indicate that the two are really two cases being heard, two cases which are quite separate ones, rather than one in which the two ‑ ‑ ‑

HIS HONOUR:   No doubt that is so, but it just seems to me that there is - if I could just run through this draft case, Mr Jackson, the problems that I see.  Paragraph 3 I do not see its relevance.  Paragraph 4, I am not sure that an appointment was made pursuant to section 21, although the holding of the office no doubt is.  In relation to paragraph 5 I do not understand the end of that paragraph which refers to “from the person or persons from whom they are alleged”, whatever that means.

MR JACKSON:   Your Honour, I think there must be some words missing from that, “alleged to be due”, I am sorry.

HIS HONOUR:   I think that must be so.  The variety of goods that is referred to in paragraph 6 does not seem, at first blush, to have much relevance to the issues.

MR JACKSON:   Your Honour, again all I can say in relation to the reference to it, apart from the tobacco and tobacco products, is that it is desired to indicate the background to the matter.

HIS HONOUR:   Yes.  Paragraphs 7 and 8 are no doubt factual matters but I do not know what their relevance is to the issues that would fall for determination.

MR JACKSON:   Again, they are background.  Without the matters to which your Honour has referred, the case would no doubt have a certain spareness, but it would, with respect, have a spareness - I do not mean to be offensive in saying this, your Honour, would be rather towards the skeleton, with respect.  The Court has to work, in the end, on some basic facts and these are simply matters of background to provide something for the Court to ‑ ‑ ‑

HIS HONOUR:   That depends on the questions that are asked, does it not?  I imagine that paragraph  9 is intended to say that they sold by retail, rather than not to overseas travellers, if it is section 30 that is being challenged.

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Paragraph 10 no doubt describes the various kinds of tobacco products but one wonders whether that is necessary, once one has identified the subject matter of sale as being tobacco.

MR JACKSON:   Your Honour, it may, because of the very high proportion of tobacco products that are tobacco products manufactured in Australia ‑ ‑ ‑

HIS HONOUR:   I see, yes, very well.  I take it that the relevant periods referred to in paragraph 13 are simply intended to refer to the dates which are mentioned in paragraph 1 rather than anything else.

MR JACKSON:   Yes, your Honour.

HIS HONOUR: The same observation might be made in regard to paragraph 14. Now, the paragraphs 17, 18, 19, 20, 21 and 22 I take it are intended to provide agreed factual material in order to found some argument on section 90 of the Constitution, is that correct?

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Does that apply to paragraph 23?

MR JACKSON:   Yes, your Honour.  The reason for that is that your Honour may recall in some of the cases, in dealing with the question of whether the tax is a tax that could be described as one on goods or on goods manufactured in Australia or by reference to their manufacture in Australia, in some of the opinions of some of the Justices of the Court the issue which has been raised is - or what has been said has been that even though it is not imposed directly upon manufacture, it may in fact, because of the relationship, be one that applies to it.

HIS HONOUR:   Yes, I see.  Now, the questions that are asked refer, in the first question and in the second, to “on the facts referred to above”.  I can understand that in terms of those paragraphs which are intended to provide a foundation for argument in relation to the application of section 90.  I do not understand it in relation to those paragraphs to which reference has been made that provide what you call background material.  In other words, would this not be a better case stated if it were reduced to its skeleton, Mr Jackson?

MR JACKSON:   Your Honour, could I just say in relation to that, if I could deal perhaps with the minor premise than the larger one, as to the first of those, needless to say if it is necessary to make some amendment to those opening words of paragraphs 1 and 2 in the questions, we would do so, of course.  Your Honour, as to the other matter, we would really, I suppose, have no objection to reducing some of the matters that are set out in the opening paragraphs. 

In relation to paragraph 9, your Honour referred to selling by retail.  The reason, I think, your Honour why - and your Honour will excuse me for not being absolutely familiar with why that expression was not used - but the reason why I think it was not used is that there may be a question whether the sales would be sales by retail ultimately if the persons who were the persons from whom the tobacco was bought, that is the manufacturers, were themselves persons who held wholesalers’ licences.  Now, your Honour, that is something in relation to which we do not know the answer.  Whilst we expect the answer would be that we are persons who are retailers, I just do not know that we can say what the situation is in that regard and that is why, your Honour, we I think put paragraph 9 in the way in which it is.

HIS HONOUR:   One imagines that question 2 is postulated on the footing that you were retailers.

MR JACKSON:   Yes, your Honour, that is the basis of the claim made against us and we are assuming that for the purposes of the case stated.

HIS HONOUR:   Am I right in thinking that that question would not arise if you purchased your tobacco from somebody who had a wholesaler’s licence?

MR JACKSON:   Yes.

HIS HONOUR:   Then should the case be stated in the absence of knowledge of that fact?

MR JACKSON:   All I can say about it, your Honour, is that we do not know and we cannot demonstrate that they did have a wholesaler’s licence.

HIS HONOUR:   But this is a case which would be stated by agreement.

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Surely the defendants know.

MR JACKSON:   No doubt.

HIS HONOUR:   I raise the question as to whether or not we would get involved in this and then suddenly discover that there is a contested issue of fact or a doubtful issue of fact which might make the question moot. 

MR JACKSON:   We would like to have the issue resolved, of course.  We are in the difficult situation, if I may say so, in this sense that the case is one in which we seek to challenge the basis upon which the very large assessments have been made against us.  It is done on the basis that we are a retailer.  We have really no - one would think that the answer to the question is really very simple, whether the persons from whom we purchase did or did not have licences at the relevant time.  If they did, then it is a different question.  But, your Honour, we are just unable to obtain an answer to that.  So we have assumed, for the purposes of these proceedings, that that is something we will not be able to demonstrate they have licences.

HIS HONOUR:   Mr Jackson, I can only say that I have no inclination at the moment to state a case on a hypothesis.  Perhaps it is a matter which might be discussed advantageously between yourself and the Solicitor.

MR JACKSON:   Yes, I will, your Honour.  Your Honour, subject to that, we really have no objection, I suppose, to engaging in some surgery on the opening parts of the case ‑ ‑ ‑

HIS HONOUR:   It would be a helpful exercise, I am sure.  If I might say so, the comparison between the stated case and the proceedings on demurrer is extremely instructive.

MR JACKSON:   Your Honour, they are different.  May I say in relation to those, the proceedings are different, however so far as the basic facts are

concerned, as far as constitutional facts are concerned, what I was going to say to your Honour was that in relation to the second case the parties were prepared to assume - to invite the Court to assume for the purposes of the second case, Walter Hammond, the same facts.  I do not mean as to the relationship between Mrs Ha and Mrs Lim.

HIS HONOUR:   No.  But you are speaking about the facts which are referred to in those paragraphs relating to the production and manufacture of tobacco.

MR JACKSON:   Yes.

HIS HONOUR:   One does not see any difficulty about an agreement that the question should be determined on that footing, but I must say I would prefer to see the issues in the case of Ha and Lim defined with some more precision before the matter goes before the Full Court. 

MR JACKSON:   Your Honour, could I perhaps discus that with my learned friend for a moment?

HIS HONOUR:   Yes.  Perhaps I will adjourn for a short time, Mr Jackson, and you can consider what course you would like to take about it.

MR JACKSON:   Yes.

AT 9.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.04 AM:

HIS HONOUR:   Yes, Mr Solicitor.

MR MASON:   Thank you, your Honour, for that opportunity.  I think we have made significant progress.  I do not have a document but can I just tell your Honour briefly the sort of changes that will be made.  In paragraph 1 we will change “licence periods” to just “periods”, and a similar amendment will be made to paragraph 2.  Paragraph 3 will come out.

HIS HONOUR:   Will “Customs Act” stay in?

MR MASON:   “The Customs Act” will stay in for a reason I will mention just shortly.  We will make the amendment to old paragraph 4 indicated by your Honour.  Old 5, we will add the words, “to be due”; “alleged to be due”.  We will delete the reference to “alcohol”.

HIS HONOUR:   Just a minute.  Paragraph 5 - - -?

MR MASON:   Old 5, we will just add at the end the words “alleged to be due”.

HIS HONOUR:   I see, yes.

MR MASON:   Minor changes to old 6, deleting reference to “alcohol”.  Paragraphs 7 and 8 will come out.  Old 9 will have a reference to “sold by retail”.  I will leave out the consequential changes.  May I hand up a document, your Honour, which will become an annexure to the case stated.  It explains, I think, the matter that was concerning your Honour and it also explains why the reference to “duty-free stores” remains.

If one looks at section 41(1)(c), 41(3) and 45 of the Act, the purpose of the document I have given becomes plainer.  Section 41(1)(c) imposes an ad valorem licence fee on a person in the plaintiff’s position but it says one disregards “any such tobacco purchased from a licensee”.  Now, the manufacturers from whom the tobacco was purchased were also wholesale licensees and the case stated will say this.  However, when one gets to 41(3), the Act says:

For the purposes of subsection (1)(c) and (d), the value of tobacco purchased from the holder of a wholesaler’s licence.....is to be disregarded only if the holder of the licence has paid or is liable to pay a licence fee -

Now, when one then goes to section 45, one has the basis upon which it is contended that the wholesalers were not liable to pay a licence fee and that is because the Minister made the determination that I have handed up to your Honour, and clause 1(ii) of the ruling says, in effect, and in our contention, that:

the selling price of tobacco sold -

by licensed wholesalers -

to duty free stores where the tobacco was intended for sale to travellers proceeding overseas -

does not attract a licence fee in the hands of the wholesaler.

HIS HONOUR:   Why, because the Minister has not determined - made that determination in respect of that?

MR MASON:   Because the Minister has determined in ruling 1(ii) that the value of tobacco excludes:

(ii)  the selling price of tobacco sold to duty free stores where the tobacco was intended for sale to travellers proceeding overseas.

HIS HONOUR:   I suppose it depends on what is meant by “excluding”.

MR MASON:   Yes.

HIS HONOUR:   That raises another point then in that case.  If the application of section 45 is in issue, it depends, one imagines, upon the determination by the Minister.

MR MASON:   Yes.

HIS HONOUR:   If we are going to be concerned with what the Minister has in truth determined, is it to be ascertained by reference to a document issued by the Chief Commissioner or for the Chief Commissioner?

MR MASON:   What is proposed, your Honour, will be that the assertion that the Minister has determined, as evidenced by this document, will be ‑ ‑ ‑

HIS HONOUR:   Is it common ground that for the purposes of 41(3) no licence fee is payable in respect of tobacco which was intended for sale to travellers proceeding overseas?

MR MASON:   From our point of view it is.

HIS HONOUR:   I mean, if that fact can be agreed, then we do not have to trouble about this.  I mean, it is a question of the application, I would have thought, of 41(3), rather than being concerned about whether 41(3) is enlivened by some action taken under 45.

MR MASON:   Yes.  In the assessments which are attached to the present stated case, your Honour will see section 2 of each assessment states that the basis for assessment is the:

Sales of tobacco products in the relevant period except duty free sales.

Again, it is a shorthand way of introducing material I have set out.

HIS HONOUR:   Yes.  Provided the issue is quite clear and there is no question arising about it, then one does not have to be troubled with it.

MR MASON:   What is contemplated by my friend and myself will be that the contention of the Minister or of the defendants that 41(3) applies will be stated in the case stated thereby showing there is a real prejudice suffered by the plaintiffs and therefore real standing to challenge the constitutional validity of the legislation.  The case stated will include that subsection in its recitation of affected sections.

HIS HONOUR:   Yes, and there will be no contested issue of fact arising out of it?

MR MASON:   In these proceedings?

HIS HONOUR:   Yes.

MR MASON:   There are other proceedings in the Supreme Court in which the validity of the assessments is under challenge.

HIS HONOUR:   That is another matter.

MR MASON:   And that is another matter, yes.

HIS HONOUR:   But so far as the exemption of tobacco intended for sale to travellers proceeding overseas from a liability to duty is concerned, that is common ground, that is, in the hands of the manufacturer?  Is that so?

MR JACKSON:   Perhaps I should say something, your Honour.  Your Honour, we accept that there has been a ruling, a Minister’s determination in the terms set out in the document which your Honour has.  The duty which is in issue in these proceedings is duty in respect of cigarettes and other tobacco that were not sold to people who were travelling overseas.

HIS HONOUR:   That is right, yes.

MR JACKSON:   We accept that so far as the manufacturer is concerned, the manufacturer is not obliged to pay; is not liable to pay a wholesale duty in respect of items that fall within paragraph 1(ii) of the ruling.  Now, I do not mean to be cute about saying that.

HIS HONOUR:   Yes.

MR JACKSON:   It may well be, of course, that the terms of the ruling have the effect that the tobacco which was sold to us is not tobacco from which there is a release of liability in the wholesaler.

HIS HONOUR:   Quite, yes.  In that case, we do not have to trouble about what the interpretation of the ruling is nor its application to particular disputed issues.  All that we are concerned with is that there was some tobacco which would not attract duty in the hands of the wholesaler, namely, the tobacco referred to in ruling 1(ii).

MR JACKSON:   Yes.  Your Honour, I am sorry, I really do not mean to be misleading your Honour at all:  the way in which the assessments of duty are phrased is such that they, in terms, appear to exclude duty on sales which we made to overseas travellers.

HIS HONOUR:   Yes, all right.

MR MASON:   Your Honour, the document is being typed and I do not wish to hold your Honour up while that is coming but I would confidently expect that my friend and I can agree on a revamped document in the course of today and if we have leave to have it delivered to your Honour’s associate.

HIS HONOUR:   Yes, certainly.  Now, do I take it, having regard to the matters of fact which are set out in the latter part of the document, that there are no countervailing or additional matters of fact which might be submitted to be relevant by any of the intervening parties?

MR MASON:   If your Honour means constitutional facts - - - ?

HIS HONOUR:   Yes.  Well, I am assuming that these are said to be relevant to the constitutional issue.

MR MASON:   Yes.  Your Honour, judging by what has happened in the Philip Morris Case and I think, also, Capital Duplicators, when the parties

came ready to argue the meaning of “excise” as at 1900, there was a deal of historical material that was being advanced in support of those contentions.  I would envisage that that material will be reventilated and it will be provided in the written submissions that the parties will provide.

HIS HONOUR:   Yes.  I did not have in mind questions of the historical material which would bear upon the interpretation of section 90 but, rather, given whatever interpretation is adopted by section 90, are there any facts other than those which are set out in this which might conceivably affect the result?

MR MASON:   I believe not.

HIS HONOUR:   Would that be so on the part of the interveners?  Are you, Mr Solicitor?

MR SELWAY:   Your Honour, for the part of South Australia, we would be wishing to put before the Court some factual and perhaps expert matters, in particular, text on tax incidents and its potential effect of a tax:  where it would flow and who would pay it, both generally and in respect of tobacco.  We would be wishing to put before the Court some material on the elasticity of demand for tobacco products and the potential effects of a tax on the demand for tobacco and probably put before the Court some material on the potential health effects of tobacco.

HIS HONOUR:   And this with a view to showing what?

MR SELWAY:   Perhaps on two issues:  the State of South Australia, on my current instructions, will be seeking to ask the Court to reopen the question of excise and, in particular, Parton’s Case.  So, to a certain extent, some of that material would be relevant to the question of what the proper meaning of “excise” is.  But even if the Court did not do that, do not give us leave to reargue, some of that material would be relevant to the regulatory nature of the current taxes, for example, on the question of elasticity of demand for tobacco products and the extent of the effect of a particular tax and its level on that demand.

Your Honour, our understanding, particularly of your Honour’s comments in Gerhardy v Brown -  I am sorry I do not have the reference with me - your Honour’s view there was that, on a constitutional matter, facts relevant to the constitutional issue could not be constrained by the parties.  That was a case stated and the case stated was stated, I think, by a magistrate.  In that case, South Australia did put before the Court some material, I think travaux preparatoire and some reports about the inquiries

into the Pitjantjatjira Land Rights Act which were received by the Court and taken into account in its decision.

I think also the more recent case of Muldowney v South Australia may have come to the Court on a case stated.  South Australia did put some material before the Court in that case.  I think your Honour raised with us whether it was appropriate for the Court to look at that material and we submitted then that it was and the Court did receive it.  So, to that extent, from South Australia’s point of view, we think that even if it does proceed on a case stated, it would not prevent South Australia putting that material before the Court but we do understand that the more recent practice has been not to use cases stated for that reason.

HIS HONOUR:   I wonder whether the material that you would seek to place before the Court would be the subject of controversy?

MR SELWAY:   It may be, your Honour.  We would certainly be intending to provide it to the parties at an early time in the hope that it could be agreed, if nothing else, because some other parties may also wish to rely upon it, maybe for different purposes than South Australia.  But there may be some aspects of it which could be quite controversial.

HIS HONOUR:   Yes, thank you, Mr Solicitor.  Mr Burmester.

MR BURMESTER:   I have nothing in particular to say, your Honour, other than to agree with my friend that there is this issue of possible additional material but I am not in a position to identify any material that the Commonwealth would wish to put forward as this stage.

MR JACKSON:Your Honour, could I say we have heard, in relation to the Walter Hammond Case, that Tasmania does wish to intervene in the proceedings in an interest opposite to us.  I cannot say what they might wish to do but I thought I should mention that.  Your Honour, Western Australia have indicated they may wish to intervene.  I could not tell your Honour on what side but I have a dark suspicion in the matter.

HIS HONOUR:   In what way do you suggest we might deal with questions of additional material, Mr Jackson?

MR JACKSON:   Your Honour, the thing that tends to concentrate the mind in these matters is really to set the matter down for hearing and to fix a time for another directions hearing prior to which any additional material could be advised to the parties.  It is very difficult to deal with the matter in the abstract more than that really, with respect.

HIS HONOUR:   Yes.  What do you say, Mr Solicitor?

MR MASON:   Yes, I would agree with that.  I could also add that your Honour could expect that all the States and Territories will be seeking to intervene.  The matter was discussed last week and that certainly seems to be the case.  Whether they will all be separately represented is another question.  There may be a divergence of position taken as to supporting an application to reopen Dennis Hotels, as I understand.  My learned friend, Mr Jackson, has indicated he will (a), seek to distinguish the Dennis line; (b), seek leave to overturn it.  It is unclear at this stage whether all of the States will be at one in supporting or opposing his position.  Obviously, if that application is made, as it has been clearly foreshadowed, there will be an application by the States to reargue Parton’s Case.

So, we are certainly preparing to, subject to the Court’s directions, file full submissions which will address the reopening issue as well as the what if it is reopened.

HIS HONOUR:   Well now, assuming we are speaking only of Ha’s Case for the moment, would it be appropriate to have the written submissions, with supporting material, filed by the parties and by the interveners in support of one or other party before Christmas, followed by a further directions hearings in order to consider any contested questions of constitutional fact at the beginning of the year, followed in turn then, assuming that is satisfactorily resolved, by a hearing in March?  The reason why I mention these dates is contingent on this, that it would be possible, I think, to allocate times for the hearing of these matters, which obviously should be heard as soon as possible, in the week commencing 10 March if the Court is not required to sit in Hobart, the indications at the moment being that the Hobart list will be very light indeed.

MR MASON:   The possibility of an earlier date is not a realistic one?  I should tell your Honour there is some disagreement amongst the parties as to whether or not, even if it were available, it would be acceptable - - -

MR JACKSON:   Not the parties.

MR MASON:   Not the parties, no, I am sorry.  Not the parties; some of the non-parties have a view but for our part we would ask the earliest date but if March it is, well, we will obviously work backwards from that.

MR JACKSON:   We are in the Court’s hands in that regard.

HIS HONOUR:   Yes.  Conceivably, it could displace some matters which, at least, tentatively, have been allocated dates in February but I would have thought that March is the more likely time, having regard to the issues that we have just been discussing.

MR MASON:   Let us, if I may say, take the March date the fixed date that is on offer, your Honour.

HIS HONOUR:   Is that programme of events satisfactory to you?

MR MASON:   Yes.  I would assume therefore it would be those who seek to reopen the Dennis line that would be required to file their materials in favour of reopening and their contentions by a certain date and those that wish to oppose that and to counterclaim by seeking to reopen the Parton line would have to file theirs by a certain date, both those dates perhaps by the end of the year.

HIS HONOUR:   I would have thought something along those lines.  What do you say about that, Mr Jackson?

MR JACKSON:   I do not mind, your Honour.

MR MASON:   Having said that, can I say to your Honour that one of the reasons foreshadowed by some of the non-parties for wanting the later rather than the earlier date is that it is clear that the stance the various government parties will be taking will have to go to Cabinet and we therefore ask your Honour perhaps to pick a date, I do not know, maybe late November for one group and mid-December for the other.  That would perhaps give a bit of room for people to make up their mind as well as to prepare. 

HIS HONOUR:   Yes.  Do you wish to be heard on that, Mr Burmester?

MR BURMESTER:   Your Honour, from the Commonwealth’s perspective, I think it would assist if the later the better in terms of written submissions.  Your Honour said “by Christmas”.  If they are to be filed by Christmas then, I guess, it would suit the Commonwealth if the timetable was set so that it was as late in December as possible before that be required because, as my friend has said, there are significant issues here which would require a whole-of-government consideration and certainly at this stage the Commonwealth has not considered the matters.

HIS HONOUR:   Has the Commonwealth adopted an attitude in general?

MR BURMESTER:   No, your Honour, I have no instructions at this stage as to whether we would be supporting reopening or not.

HIS HONOUR:   Simply that you will intervene but you do not know in what interest.

MR BURMESTER:   That is correct, your Honour.

HIS HONOUR:   I see.  Do you have anything to say, Mr Solicitor?

MR SELWAY:   No, your Honour.

MR JACKSON:   Your Honour, I am sorry, I wish to say one more thing and it is just this:  I thought that what your Honour was proposing was that the submissions and indications of any further material be provided, in effect, by Christmas.

HIS HONOUR:   Yes.

MR JACKSON:   Something my learned friend, the Solicitor-General for New South Wales, said suggested November but I would have some difficulty in doing that.

HIS HONOUR:   Well, obviously they have to be done in a particular order, Mr Jackson.  Somebody has to start.

MR JACKSON:   Yes.  Your Honour, I do not mind that.  I was just working on the assumption your Honour was saying to have them by the end of December - by Christmas.

HIS HONOUR:   I had in mind that all written submissions with supporting material would be filed by the end of December - by Christmas.

MR JACKSON:   Yes.  I had not appreciated your Honour was proposing a particular order that might involve us doing it by the end of November which, I just suspect, would create difficulties.  Might I perhaps suggest a week or two later than that?

HIS HONOUR:   That would make it mid-December for you.

MR JACKSON:   Yes.

HIS HONOUR:   Where would that place those on the other side?

MR JACKSON:   Well, your Honour, they know what they are going to say.  They all know what everyone is going to say, really.

HIS HONOUR:   That leaves it a little bit late, Mr Jackson, bearing in mind what usually happens in January.  Yes, I appreciate the difficulty.

MR JACKSON:   Your Honour would appreciate that there are of course other cases, for example, the “Free-Speech Case”, if I can call it that, that is on the week before in March.  I think it has a somewhat similar timetable involved.

HIS HONOUR:   And it was, indeed, that timetable I was thinking of copying in relation to this matter, the difficulties of which are obvious, I understand.  It is a question of when we can give this matter the priority which the nature of the case demands.

MR JACKSON:   Your Honour, I am not going to whinge about it.  I simply invite your Honour to make it a date later than the end of November.

HIS HONOUR:   Do you happen to have the timetable for the “Free‑Speech Cases”?

MR JACKSON:   No, not with me, your Honour.

HIS HONOUR:   You do not either, I suppose, Mr Solicitor?

MR BURMESTER:   Your Honour, I know that the Commonwealth’s submissions are due, I think, November 15.

MR SELWAY:   And ours are due on the 25th.

HIS HONOUR:   Before dealing with the actual timetable, could I just raise the question of the other matter which is the demurrer and the intimation that it is desired that the facts which were set out in the case stated should be acted upon by the Court in relation to the demurrer.  Although I have expressed some views which indicate a great favour for demurrers, I can see that there might well be some merit in having that matter also referred to the Court by way of a case stated in which the facts which are to be taken into account should be recited.

MR JACKSON:   Yes, I do not think there would be any problem in doing that, your Honour.

HIS HONOUR:   Do you see any problem about that, Mr Solicitor?

MR MASON:   No.  I think my preference would be just to set down the demurrer and the parties can have the agreement but if your Honour wants us to - - -

HIS HONOUR:   It is a question of what the jurisdiction of the Court is.  If the parties set down the demurrer then is there anything for the Court to look at apart from the demurrer book?

MR MASON:   We are talking of only the constitutional facts relevant to the demurrer and I would submit that the latter part of the Ha/Lim document, to the extent that it refers to constitutional facts could, by agreement of the parties, be put before the Court on the demurrer point unless there is something - - -

HIS HONOUR:   Yes, that may well be right; that may be right.  But it seems to me that to avoid any problem if the questions and demurrer are put in the form of a reserved question for the opinion of the Full Court, proceeded by the statement of the facts which are the constitutional facts.

MR MASON:   That would be very acceptable, your Honour, yes.

HIS HONOUR:   And that would leave the way open for interveners in that matter to follow whatever course they might think appropriate and, indeed, it would lead very easily to the formulation of cases and the fixing of timetables corresponding in each case.

MR MASON:   Yes.  I am sure there would be - yes, there would be a single set of submissions.

HIS HONOUR:   Yes.

MR MASON:   Yes.  Well then, we will prepare in the Hammond one a question reserved and an agreed statement of relevant facts which will incorporate by reference the other document.

HIS HONOUR:   Yes.  First of all, the order in which the submissions should be filed:  do I take it that you are agreeable to filing the first group of submissions, Mr Jackson?

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Now, are you aware of any interveners who are in support of you?

MR JACKSON:   No, your Honour.

HIS HONOUR:   Then, perhaps you can tell me, Mr Solicitor, I take it there are likely to be interveners in support of your submissions?

MR MASON:   Yes, but there may be some the other way.  But certainly there will be some supporting our position.  We have not yet decided what position to take on reopening either. 

HIS HONOUR:   Yes.  Well then it may be better if the sequence of submissions are those of Mr Jackson and of any interveners supporting the plaintiff, followed by your submissions, followed later again by the submissions of others who would be supporting the conclusion for which you contend, albeit the grounds are different.

MR MASON:   Yes.  The category of intervener supporting the plaintiff, I think, will be a category of none.  I doubt if any will support the plaintiff all the way but if you mean supporting the plaintiff in seeking to reopen Dennis Hotels, I think that would define a group that could identify themselves.

HIS HONOUR:   Yes, but that can be catered for by submissions by interveners which follow your submissions.

MR MASON:   Yes, but could I suggest this, your Honour, that the universe be divided by those parties and interveners who want to seek to reopen Dennis Hotels and those parties and interveners who seek to argue that it should be maintained and that each group file their consequential submissions at the same time as they file their position on the opening.  It is a matter for your Honour.

HIS HONOUR:   I think perhaps the better solution is to have the plaintiff’s submissions first, the defendant’s submissions following, the submissions of all interveners following that with a right of reply for both plaintiff and defendant thereafter.

MR MASON:   I would then just put in a bid, please, to have, say, 10 days before Christmas to look at the plaintiff’s submissions because we will obviously start preparing ours but equally there will be some that we will be wanting to reply to the plaintiff’s submissions.

HIS HONOUR:   Yes.  The timetable I have in mind is this, but I will be open to receiving submissions about it, and that is that the plaintiffs should file their written submissions and supporting material by 6 December; the defendants by 24 December; interveners by 24 January; replies by the plaintiff and the defendant by 8 February but with a directions hearing somewhere between 24 January and 8 February with a view to ensuring that the matter can usefully be listed for hearing in the second week of March.  Do you have anything to say about that, Mr Jackson?

MR JACKSON:   No, your Honour, nothing at all, except to say is it possible for your Honour to fix a date now for that hearing?

HIS HONOUR:   Yes, I think it would be possible to do so, Mr Jackson.

MR JACKSON:   Your Honour, could I suggest - just from what my learned friend from South Australia said, I have a suspicion it may take more than 10 or 15 minutes.

HIS HONOUR:   Yes.  Well, that was the concern that I had myself.  I would rather hope that having regard to the materials filed before Christmas by the plaintiff and the defendant, the interveners would be able to identify with some clarity whether they need to put in any, and what, additional material and could also consult with regard to the question of the concession of any facts that might be material.  That would indicate that there would be a desirable directions hearing in the last week of January I would think.  Is 28 January suitable?

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Mr Solicitor, 28 January?

MR MASON:   The 27th is a public holiday and we will only get the interveners’ submissions the preceding Friday.  It just may make it a bit tight for digesting the material.

HIS HONOUR:   Yes, well, perhaps if we make it the 30th.

MR MASON:   Yes, thank you.

HIS HONOUR:   I gave an indication of the response by 8 February.  Obviously that is not a suitable date, it is a Saturday.  We will make it 7 February.  The directions hearings will be adjourned until 30 January.

MR MASON:   Your Honour, to the extent that it is a relevant factor for the Court, the consensus of the States and Territories was that perhaps three days would be the total time but obviously it is a matter for my friend and the Court.

HIS HONOUR:   What do you say about that estimate, Mr Jackson?

MR JACKSON:   Your Honour, it is a case of either two days or three days, really.  It may be shorter with the Court’s new proposed form of written submissions.

HIS HONOUR:   Yes.  What do you have to say, Mr Solicitor for South Australia?

MR SELWAY:   Your Honour, I would have thought, if the Court gets into a full reargument of excise, the case, from the State’s prospective, would probably take a bit over a day.  Having said that, most of the Court has already heard most of it and it may be possible to do it a little shorter but I would have thought at least a day to put that part of the argument which suggests that it might be able to be done in two days but it may be cutting it a bit fine.

HIS HONOUR:   It certainly sounds that way.  Mr Burmester, have you anything?

MR BURMESTER:   Nothing to say.

HIS HONOUR:   Now, there is one other subject that I mention and that is there will obviously be supporting material, sometimes, perhaps, of a fairly extensive kind.  I wonder whether it would be practicable to provide that material, not on the basis of rekeying it but on the basis of scanning it into a computer and providing some computer-assisted material or computer copy of that material.  I suppose it is impossible at this stage to give an indication of that but it might be something that would be worthwhile considering.  I am thinking in terms of the scanning mechanisms that are now available that can put material onto a computer without having to have it rekeyed.  I do not know the volume of it, of course, and I do not know the cost but it is something which perhaps the respective solicitors might care to consider.

MR MASON:   If Your Honour pleases.

HIS HONOUR:   I should indicate that that would not dispense with the necessity for hard copies.  It is just that the provision of a floppy disk might be of assistance for those in the Court who are concerned with the production of judgments.

MR JACKSON:   Your Honour, to the extent necessary, could I ask your Honour to certify for counsel?

HIS HONOUR:   Yes, counsel will be certified for.  Very well, adjourn the directions hearings in both matters until 30 January.

AT 11.44 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 30 JANUARY 1997