Ha & Lim v NSW

[1997] HCATrans 61

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 CANBERRA ON MONDAY, 17 FEBRUARY 1997, AT 2.15 PM

(Continued from 7/2/97)

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If your Honour pleases, I appear with my learned friend, MR B. GLENNON, for the plaintiffs in Ha and Lim v State of New South Wales (instructed by Doran Roberts & Co) and with my learned friend, MR R.A. DICK, for the plaintiff in Walter Hammond and Associates Pty Ltd v New South Wales.  (instructed by Glasheen & Quilty)

MR J.J. SPIGELMAN, QC:  If your Honour pleases, I appear for the defendants in both matters.  (instructed by the Crown Solicitor for New South Wales)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:  Your Honour, I appear for the Attorney-General for the Commonwealth intervening.  (instructed by the Australian Government Solicitor)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:  Your Honour, I appear for the Attorneys-General for South Australia, Western Australia and Northern Territory, Queensland and Tasmania.  (instructed by the Crown Solicitor for South Australia, Western Australia, Queensland, and Tasmania and instructed by the Solicitor for the Northern Territory)

MR SPIGELMAN:   Your Honour, we have put the matter back in for directions.  After the 7 February directions hearing the Solicitors-General met and discussed the question of timing and the amount of time and, in particular, from the point of view of the additional issue that had really raised its head during the course of that day, namely the Chapter III issue.  The 78B notice has subsequently been issued.  It is restricted to the question of Chapter III and prospective overruling.  Your Honour will recollect that Mr Jackson foreshadowed the possibility of raising another Chapter III issue.  That, as I understand it, is not to be raised.  So it is the one issue but it is a matter of some significance. 

The Commonwealth Solicitor addressed your Honour on it and suggested it would take two or three days on its own.  We agree that it would take two days if it were to run.  What we are proposing is an alternative remedy.  It is a question for the Court.  The matter of the existing issues, the section 90 issues, if I might call them that, are quite distinct from the Chapter III issues.  It would be possible for the Court to use ‑ ‑ ‑

HIS HONOUR:   They are related in the sense that it could affect the question of the reopening.

MR SPIGELMAN:   That is so, as was argued last time.  It is really the decision on the prospective overruling, whether it be permissible.  If it be not permissible, then that is a relevant fact to take into account in giving leave to reopen.  As long as the decisions were handed down at the same time the issues are sufficiently discrete for them to be argued separately.  It really is a question of the convenience of the Court more than anything else.

HIS HONOUR:   The situation can be stated quite simply.  The dates which are presently allocated are immutable but it is possible to allocate additional dates in the following week and, indeed, it probably would be, if there has to be an extension of time for the argument, it would have to be in that following week.  In other words, it would be the Tuesday, Wednesday and Thursday of the second week of sittings, followed by the Tuesday, Wednesday and, if need be, the Thursday of the week after.  Putting it more precisely, 11, 12 and 13 are already allocated; 18, 19 and 20 are the dates which are possibilities.

MR SPIGELMAN:   We had not appreciated that as an option, but that is the best of all possible worlds as far as we are concerned.  May I say this:  we indicated on the last occasion that we thought a day and a half was tight but we are in the Court’s hands.  We would ask the Court to set down Tuesday, Wednesday and Thursday of the second week, but at least the Tuesday and Wednesday, and the time be divided equally between the two sides, as your Honour ruled on the last occasion.  With the addition of the ‑ ‑ ‑

HIS HONOUR:   We will leave that as still the situation, in the light of this.  In other words, the question of reopening was going to be raised in the first instance, I think, at the end of Mr Jackson’s initial argument.  The question is what order should be followed now that this issue is involved?  Should it be tied in with the argument on reopening and, if so, does that make any difference to the allocations of time?

MR SPIGELMAN:   The sequence, in our submission, is that we could address on all issues when we spoke.  How much we were replying to is not a matter with which - the only thing we would ask is that if the Commonwealth has submissions on the question of power, namely the Chapter III point, that we would go after the Commonwealth on that because we have not yet seen any submission on the question of power in written form.  It is one of these things that each of the parties is trying to do something new in different respects.  The Commonwealth is saying “status quo on all issues”, so it is a bit difficult to work out what the order should be.  But on the last occasion there was some suggestion that perhaps the Commonwealth, because our primary submission is reopen Parton, the Commonwealth should go after that occurs.

MR GRIFFITH:   It is not a suggestion, it is a fact.

MR SPIGELMAN:   That was what was put to your Honour on the last occasion.  On the question of power to overrule prospectively, that is a matter that perhaps we should be replying to in terms of power.

HIS HONOUR:   Let me see if I can understand correctly what your arguments will be.  Take me through it step by step.

MR SPIGELMAN:   We raised the question of prospective overruling.  The Commonwealth has said no power to do it and we say we would like to hear their arguments in some form as to what the Chapter III arguments are.  We would submit, firstly, that that ought to come before we make oral submissions, but we would like some sort of direction as suggested here that there be a direction as to the filing of a written submission on that subject, there having as yet been none.

HIS HONOUR:   What do you say about overruling of Dennis Hotels?

MR SPIGELMAN:   Our position has been, firstly, that our primary position - and this is quite different, for example, from Capital Duplicators ‑ is that Parton should be reopened.  We seek to do that.  If that is done, then Dennis Hotels becomes irrelevant effectively - sorry, if it is done successfully from our point of view.  That is our primary position.  We understand there are risks associated with that position, risks which have not hitherto suggested themselves as desirable to the States, but on this occasion that is the position taken in the written submissions.

If we are wrong about that, then in the alternative we will suggest that Dennis Hotels should not be reopened.  But our primary submission is really one that would bypass Dennis Hotels.  It would then become irrelevant.  It is for that reason that the States indicated to your Honour on the last occasion that three days was not sufficient, in the sense that there is a much more fundamental attack than has perhaps hitherto been the case.

HIS HONOUR:   Am I right in thinking that you and the States are making common cause of going back to square one as the primary proposition that you wish to advance?  Is that right, Mr Solicitor for South Australia?

MR SELWAY:   Yes, your Honour.

MR SPIGELMAN:   Yes, that is so.  And Dennis Hotels is an alternative to that for obvious reasons.  But there is one issue on which the plaintiff has made its ‑ ‑ ‑

HIS HONOUR:   Now, if that is so, you do not want overruling for the future, is that right?

MR SPIGELMAN:   No, I am sorry, we make that submission, prospective overruling, is in relation to Dennis Hotels.

HIS HONOUR:   I know you want to say it is in relation to Dennis Hotels but I mean it is not susceptible of division in that way, is it?

MR SPIGELMAN:   If we are right about Parton, questions of overruling really would not arise.  But the answer to your Honour’s question is they may arise, and if so ‑ ‑ ‑

HIS HONOUR:   If they do arise, it would be a question of overruling Dennis Hotels ‑ ‑ ‑

MR SPIGELMAN:   Sorry, overruling Parton.

HIS HONOUR:   Overruling Parton.

MR SPIGELMAN:   I am sorry, your Honour, yes.

HIS HONOUR:   What do you say then?

MR SPIGELMAN:   I am sorry, are we suggesting that it be overruled only for the future?

HIS HONOUR:   I am endeavouring to discover are you saying it should be overruled only for the future?

MR SPIGELMAN:   No, your Honour.

HIS HONOUR:   Then you want to overrule Parton and you want that to be retrospective.  If, however, you fail on that, you want Dennis Hotels to be maintained.  But if that is to be overruled, only for the future?

MR SPIGELMAN:   That is so.

HIS HONOUR:   Now which way is your constitutional argument to run on Chapter III, for or against overruling?

MR SPIGELMAN:   We are obviously not saying that there is no power to overrule for the past, we are saying there is a power to overrule prospectively.  The question of why and how and in what circumstances that power should be exercised, if it exists, is obviously a matter for the Court.  May I say in terms of any discrepancy in the logical position between our position on Parton and our position on Dennis Hotels, section 90 is not an area that is obviously consistent from everyone’s point of view for a long period of time.  It is an area where anomalies have been well known for a long time.

HIS HONOUR:   So the steps are: overrule Parton, there is power to overrule for the future, and the discretion should be exercised in one way in respect of Parton but if it should be necessary to exercise it in relation to Dennis, in another way.

MR SPIGELMAN:   Yes.  Your Honour says “the discretion”.  There is no doubt that the normal effect of what the Court does is to overrule if it is a decision with retroactive effect, because what we are asking your Honour to do is not to overrule a decision with retroactive effect but to declare the statute, namely the State statute if it be invalid, invalid prospectively in the manner that is sought in the pleadings and in the submissions.

But may I say, your Honour, I do appreciate that in terms of the exercise of the discretion it arises when someone asks the Court to do something other than what is normal.  And obviously normal is that the Court’s decisions have full retroactive force.

HIS HONOUR:   I think I understand the way in which you are putting it, Mr Spigelman, but I would like to know next whether the other States put it in exactly the same way, which I understand to be this, and correct me again if I am wrong:  Parton should be overruled; there is a power to overrule prospectively; that power is not ordinarily exercised that way but when a party comes to a Court seeking the overruling of a decision, the Court has power to do so and will exercise the power to do so according to the circumstances of the case.

MR SPIGELMAN:   And that is applicable to - there is a stage missing in the argument, namely does the Court, if it does not overrule Parton, give leave to reargue Dennis?

HIS HONOUR:   Yes.

MR SPIGELMAN:   If it does so and overrules Dennis, then the question of prospective overruling on our submissions will arise and, in this case, will arise - when your Honour says “the circumstances of the case”, in the circumstances of a long history of litigation before this Court.

HIS HONOUR:   That is all I meant.

MR SPIGELMAN:   Quite unique circumstances.  One would not expect it to arise often.

HIS HONOUR:   Very special circumstances.  Yes, thank you.  Now, are those the points which the States otherwise will be arguing and in that order?

MR SELWAY:   I think they are, your Honour, with this qualification.  Not all States will be seeking to argue prospective overruling one way or the other.  Say, for example, South Australia may not make a submission on prospective overruling.  But I think the way my learned friend, Mr Spigelman, explained the argument is the way that the argument would be put but perhaps with this further gloss on it.

HIS HONOUR:   May I just interrupt you for a moment.  If no argument is being put on prospective overruling by a State, will that State approach the question of leave to reargue a case being determined on the footing that there is no power to overrule prospectively?

MR SELWAY:   Or at least on the approach that if there were such a power, it would not be exercised.

HIS HONOUR:   It would not be exercised, yes.

MR SELWAY:   Your Honour, the argument as we understand it is that Parton should be overruled.  If Parton was overruled, that is to say if that argument were accepted, that would mean that Dennis Hotels was correctly decided but for the wrong reasons.  So the consequence in terms of, if you like, the negative overruling effect probably would not arise, or at least on that argument would not arise.  So those States which may put an argument about prospective overruling may well put the submission that there is no logical problem with the submission being put.

We would join with my learned friend in saying that there would need to be one to two days, we think, for prospective overruling and your Honour’s suggestion as to that being in the later week would be desirable.  There is only one other suggestion we might make.  It is possible

that the Levy and Lange matters may not take up all of the Monday of the second sitting week.  Most of the counsel in the Ha and Hammond matters are also in the Levy and Lange matters.  So it may be possible, subject to the views of my learned friends, if there was some early finish in the Levy and Lange matters, that some of that time could be taken up in the excise matters.

HIS HONOUR:   So far as those that you are representing are concerned, that would be agreeable, would it?

MR SELWAY:   Yes.  The suspicion is that if prospective overruling was to be argued, it may not be able to be finished with whatever time was freed up, assuming it was only Monday or part of it.  But obviously it would be desirable, if the Court was amenable, to sitting on ‑ ‑ ‑

HIS HONOUR:   Yes, I am just thinking in terms of the availability of counsel.

MR SELWAY:   Yes.  Certainly the group I represent, they would be available.

HIS HONOUR:   What do you say to that, Mr Spigelman?

MR SPIGELMAN:   I am sorry, in what respect?

HIS HONOUR:   If the Levy and Lange matters, which are presently scheduled to run over until the Monday of the second week, that is Monday, 10 March, if that day were free, would it be convenient to commence these matters on the Monday?

MR SPIGELMAN:   I would prefer not by reason of the fact that I have a significant onus in Lange in the sense I am not an intervener and I would prefer the day break to prepare for this case.

HIS HONOUR:   Yes.

MR SPIGELMAN:   I am obviously in the Court’s hands in that respect.  But I do not think the extra day would be enough or half day or whatever it be.

HIS HONOUR:   I will hear from Mr Solicitor for the Commonwealth next to get his order of argument.

MR GRIFFITH:   Your Honour, the Commonwealth’s view is that New South Wales is seeking to make a novel proposition on prospective overruling.  In the brief submissions originally filed on behalf of New South Wales there was but one paragraph on prospective overruling.  In the second version, which are attached to the section 78B notice here dated 20 January 1997, there is slightly over four pages.  Now, your Honour, we are in the position that we would say, firstly, it is for those who assert it is a novel proposition to make it out, not for us to establish the case that it is not to be made out.  Inasmuch as it is put as a constitutional point, Chapter III is relevant, but basically it is a case for prospective ruling to be made out and we suppose it will be as indicated in the four pages of now somewhat enlarged submissions by reference to material, including particularly US material, that the case will be put.

Now, your Honour, if it is indicated by Mr Spigelman that this is the case in this four pages, the second version, rather than just another citing shot, your Honour we are prepared to respond with full written submissions by, say, a fortnight from today, 3 March.  As to those, we would have thought that having regard to the new directions of the Court as to written submissions, it may on this issue be useful if your Honour would grant leave to the Commonwealth to have submissions of a longer length than 20 pages, if that seems appropriate.  Not because we want to burden the Court with a prolixity of information, your Honour, but it does seem to us it may be useful for us to give some analysis of the US authorities and literature as part of our submission, rather than to, because of the order for abbreviated written submissions, have to take the Court to that orally in the argument.  So we are happy to hold nothing back, your Honour, if we were permitted to file submissions in a similar form to that which we have in the past.

HIS HONOUR:   It may be desirable if such an exercise were approached as a separate annexure.

MR GRIFFITH:   Yes, I was thinking of that, your Honour, that if we could be in a position that we could make submissions in the usual form but, your Honour, as accustomed from the Commonwealth, that perhaps as they have been made in excise already, they are not less than 20 pages but they are not prolix, they are directly to the point, with an annexure dealing with United States materials.  We would suppose, your Honour, that might abbreviate the oral argument by possibly a day or so, if your Honour would grant us that leave.

HIS HONOUR:   Before I get to the question of the written submissions, the points that the Commonwealth would wish to argue are, first, the status quo, is that right?

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   And failing the status quo?

MR GRIFFITH:   Your Honour, we do not have a fall-back position on the status quo.  That status quo is the status quo.  So that if there is a reopening, your Honour, we say same result.  We do not want to alter anything, your Honour, so there is no fall-back position for us.  But on prospective overruling, we would take the view, and perhaps we will be the principal contradictor on this, that there is no power in this Court to overrule the constitutional cases on a prospective basis.  As I indicated, your Honour, as long as my learned friend indicates that his substantial submissions are those exposed by the second version of the filed submissions, we are prepared to respond in writing within a fortnight.

HIS HONOUR:   Yes, thank you.

MR GRIFFITH:   We would say it goes without saying that it is not for us to got first in the oral argument.  My friend has to make out his proposition that there is this power in the Court.

HIS HONOUR:   Mr Jackson, in the light of all that.

MR JACKSON:   Parties soon get forgotten in these things.

HIS HONOUR:   Not quite.  It is a matter of discovering where the other parties wish to buy into the arguments, so that we can ensure that your clients are given the order of argument which does not disadvantage you.

MR JACKSON:   Your Honour will appreciate - may I deal with one administrative thing first.  That is in relation to starting the case immediately after the free speech cases, if I can describe them compendiously as that.  Your Honour, it was mentioned to me by my learned friend just before your Honour came in, and I think I gave what was perhaps an assent to it.  Having thought about it further, your Honour, I would much prefer not to.  I think I am one of the last to speak in that case and it is just quite difficult to arrange things administratively and I would prefer to start this case, because I will be going first, I expect, after some gap between the two.  Your Honour, the second thing is this ‑ ‑ ‑

HIS HONOUR:   It seems also at this stage, at all events, quite problematic as to whether the free speech cases will finish on the Friday before.

MR JACKSON:   Yes.  The second thing is that so far as dealing with the case apart from the question of prospective overruling is concerned, could I just say that we would really not be agreeable to the proposition that a longer time should be allowed for the argument in the case than the three days already permitted.  What I mean by that is that when one looks at ‑ there is a plaintiff and a defendant, New South Wales.  When one looks at the arguments on behalf of the various interveners other than the Commonwealth, what one tends to see is that although it is differently put, they really say in many respects much the same thing and whilst one can understand that they might in various respects like to chop up the argument or divide it up into various pieces and advance that each as a separate argument, in reality the arguments do cover much the same field, looking at the same thing from different points of view.  So that, your Honour, it would be better and, in our submission, it is a case that can be done in three days in that respect and should be left at that.

Could I say then, turning to the question of prospective overruling, what your Honour will see from the New South Wales’ amended submissions is that the issue does have a slightly academic aspect to it.  I do not know if your Honour has there the New South Wales’ amended submissions, paragraph 13 ‑ ‑ ‑

HIS HONOUR:   Yes, I have.

MR JACKSON:   It is paragraph 13 on page 7, your Honour.  What your Honour will see is that the answers that are proposed would have the effect that the relevant provisions would be invalid in so far as they applied to the plaintiffs in these proceedings and then one would go on from there in relation to other persons.  So that there is not any claim, as it were, if I can put it that way, there is not any contention that so far as the plaintiffs in the two actions are concerned, that the invalidity not operate in respect of the matters that have given rise to the claims.  Now, your Honour, that does ‑ and I do not want to have that situation reversed, I might say ‑ but it does carry with it a slight further question which perhaps one should mention, and that is the question whether this being original jurisdiction, the Court in that regard is dealing with something which has an advisory aspect to it, meaning by that, of course, that the issue is not one which directly arises between the parties.

The only relevance to us of the question of prospective overruling, or the Court’s ability to overrule prospectively only, relates to the question whether there should or should not be a further - I am sorry, your Honour, I am putting it badly ‑ whether there should or should not be a greater inclination to revisit the previous decisions.  So, your Honour, our interests in the issue is one which is of that kind, so that is where the matter stands.

HIS HONOUR:   The question, I suppose, then arises as to whether, having regard to paragraph 13, the section 78B notice does really notify a question which is alive in this litigation.

MR JACKSON:   Your Honour, if I may say so with respect, that may be an issue which the Full Court would have to decide.

HIS HONOUR:   Yes.

MR JACKSON:   But that is something that, in a sense, is necessarily comprehended by the concept of prospective overruling anyway, because it does involve ‑ a decision one way affects potentially the rights of persons not parties to the proceedings.  Of course, decisions in the ordinary course of events do so too, but in a more established way.

I am sorry to do this in a kind of rambling fashion.  In relation to this, your Honour, what we are seeking to say is we do not want the time extended for the main case beyond three days.  We are happy to have, with the Commonwealth, half of that for the purpose of the excise issues.  Your Honour, so far as the remainder of the case is concerned, if it is to go on immediately afterwards ‑ and that seems a very convenient way of doing it, if I may say so with respect ‑ then perhaps the issue relating to prospective overruling should be dealt with at that point because at that point, of course, your Honour, with one having flagged, of course, the several possibilities when dealing with the question of revisiting the earlier cases.

HIS HONOUR:   One wonders whether it will be possible to isolate prospective overruling from the question of reopening and whether that isolation is economically desirable in the course of running the argument on the section 90 points.

MR JACKSON:   Yes.  Your Honour, we would submit it is possible, but we would be happy enough if the case were listed, for example, for five days, provided to have half the time between ourselves and I think it would still be the Commonwealth, with the others having the other half and we would work it out ourselves how we would do that.

HIS HONOUR:   In what order then would you suggest it should be in terms of addressing?

MR JACKSON:   I would make this submission, your Honour, that we go first.  Your Honour will appreciate that our initial argument would be to say, applying what is the current law, the position would be that the imposts in question were ones that were not justified, if I could use that expression, by the current law.

Secondly, we would say, if that is not right, that Dennis Hotels would apply to them.  The Court should consider whether to reopen those cases and we would then seek to proceed with the argument on that issue and on the issue, if they were to be reopened.  Your Honour, in saying that, I am subject to the direction of the Court, of course

Following that, your Honour, we would then have a situation, I think, where the Commonwealth’s submissions at that point, as I would understand it, would simply be, in effect, saying, if they said anything at that point, that Dennis Hotels should not be overruled without entering into argument on the question because the Commonwealth’s written submissions simply state the proposition, and my understanding was that that is not something the Commonwealth really wants to argue as a full issue.

One would then go to the situation where one would have New South Wales arguing its case and its case would then be the case on the several issues I mentioned.  Then - I say “then”, but no doubt my learned friend would do it any way he chose, but it would include then the argument seeking to overrule the larger view of excise.  No doubt as part of that also there will be questions raised as to prospective overruling.  We would then have a situation, your Honour, where one would have the various other interveners supporting New South Wales, followed by us replying - I use the term perhaps in inverted commas - with the Commonwealth in support of us.  Your Honour, it may be that there would be some further replies to what has been said would be permitted by the Court.  That is the broad structure of it, your Honour.  It would seem to follow, if one has the two issues dealt - two separate - - -

HIS HONOUR:   So, you and the Commonwealth would start without particular reference to prospective overruling.

MR JACKSON:   I think I would start there, your Honour.

HIS HONOUR:   Yes, and that would then be followed by New South Wales and the States which would, at least as to some of them, raise the question of prospective overruling, to which you and the Commonwealth would reply and, if need be, New South Wales would then reply so far as the issue of prospective overruling is concerned?

MR JACKSON:   Yes.  Your Honour, I should say in our written submissions in relation to the question of revisiting the larger excise question we have adopted what the Commonwealth says, so there would not be too much overlapping between us, although I do not mean that I would be silent on the issue but I would hope that the two of us would not take two full arguments.

HIS HONOUR:   Mr Jackson, at present it seems to me that that programme is satisfactory but that, in the light of the intimations that are given, it would probably be undesirable to restrict the time still to the three days and I would therefore be minded to extend it to five days.  The equal division of time might be the appropriate thing to do but I do think that it would be desirable to ensure that we had at least this division of time; that we would have the plaintiff and the Commonwealth given such a block of time, followed by the block of time for New South Wales and the States, followed by the two blocks of time for your and the Commonwealth reply and the States’ reply, just so there will not be any misunderstanding about that which is not going to be the subject of internal agreement as to allocations.  Now, I am in the parties’ hands so far as that allocation is concerned.  Would it be desirable for me to adjourn while you all have a talk about that?

MR JACKSON:   My learned friend, the Solicitor-General for the Commonwealth has a pressing matter, your Honour.

MR GRIFFITH:   Your Honour, it seems like we are getting a squeeze here because my learned friends refers to us replying.  We want to go in‑chief, your Honour.  But when I indicate the Commonwealth supports the status quo, we have formal submissions of some eight lines to support Dennis Hotels.  They are in our written submissions and we do not intend to enlarge on that, your Honour.   So that on my learned friend’s case in‑chief, Mr Jackson, your Honour, we really have nothing further to say.

Your Honour, we then have New South Wales raising the issue of reopening excise generally.  Well, we do have a lot to say, your Honour. That is what we say is the status quo - that should be fixed.  Now, my learned friends fall-back position, your Honour, is, “In the alternative, don’t reopen Dennis Hotels”.  Your Honour, our position on that is formerly, just as before, we support that.  But when we say “status quo”, your Honour, if my learned friend loses on that point and Dennis Hotels is reopened and overruled, we remain firmly of the opinion that the first position, Parton is confirmed, should remain.  We do not shift on that, your Honour.  So, if Dennis Hotels goes, and notwithstanding our formal submission, we argue strongly for status quo on excise apart from Dennis Hotels.

Your Honour, it seems to me therefore that the logic of the order suggested by my learned friend, Mr Spigelman, on the last occasion remains, that the case the Commonwealth is making, apart from its formal submission on Dennis Hotel,s is to argue against New South Wales and the other interveners’ case for reopening.  So, we submit, your Honour, we should go after the State interveners.  That is what I understand was - - -

HIS HONOUR:   Yes, that is what I had anticipated.  What I had anticipated was that the order would be that Mr Jackson would open; you would follow with your eight lines, if you wish; followed by Mr Spigelman and the States; followed by you and Mr Jackson saying what you wished to say about prospective overruling and replying to whatever they have to say otherwise; followed in turn by Mr Spigelman saying what he wishes to say in reply to what you have said on prospective overruling.

MR GRIFFITH:   With respect, your Honour, we would then seem to have missed our opportunity to put what is our substantive case, namely saying maintain status quo on Parton and excise which we would desire to put after we hear the case of those who have argued for its overruling.  We want to put that at length, not just by way of reply.  That is our substantial submission.

HIS HONOUR:   I am not suggesting it should be by way of reply in any formal sense.

MR GRIFFITH:   I am sorry, your Honour, I was seduced by the word “reply”.  Your Honour, as my learned friend, Mr Jackson, indicates, he intends to adopt our submissions so we are quite content to go before him after the other States and put all our case - just the few lines on Dennis Hotels which can be taken as read, your Honour, and then we can put all our case.  Having heard from the States on prospective overruling, we are prepared to put our case on excise, our case on prospective overruling and then sit down.

HIS HONOUR:   I am sorry, I am not following you at all, Mr Solicitor.  What order do you suggest it should be?

MR GRIFFITH:   The same as your Honour ordered last time, namely, we should go after the other States intervening and do our complete case, including on prospective - - -

HIS HONOUR:   You would not follow Mr Jackson at all?

MR GRIFFITH:   No, I would go before him in reply, your Honour.

HIS HONOUR:   Who do you suggest should open the argument?

MR GRIFFITH:   Mr Jackson should open the argument, your Honour.

HIS HONOUR:   Followed by - - -?

HIS HONOUR:   New South Wales, your Honour, then the States intervening, then us.  We put our formal submission - the Court will not be surprised that it is there - on Dennis Hotels.  The rest is support status quo against New South Wales on reopening excise, Parton; against New South Wales on prospective overruling then we will sit down.  That is it.

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

MR JACKSON:   The only difference, your Honour - the differences are two.  The first is that my learned friend does not want to say what he has to say about Dennis Hotels immediately after us.  That does not worry me at all, your Honour, it is perfectly understandable.  I accept that.  The second thing is in relation to the order of dealing with the main issues.  It may be that we would prefer to go ahead of him, it may be we would prefer to go after him, but it really does not matter one way or the other.

MR GRIFFITH:   I am happy to sort it out.

MR JACKSON:   Between the two of us we will work it out, your Honour.

HIS HONOUR:   So, you will start?

MR JACKSON:   I will start.  Your Honour, if I can just say:  I would like to have until 3.15 on Thursday.

HIS HONOUR:   Followed by Mr Spigelman.

MR JACKSON:   Yes.

HIS HONOUR:   Followed by the States.

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Followed by either you or the Solicitor for the Commonwealth.

MR JACKSON:   Yes.

HIS HONOUR:   Followed then by Mr Spigelman.

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Very well, that is fine, I understand as between you two parties.  Mr Spigelman, do you have any objection to that?

MR SPIGELMAN:   That seems entirely appropriate, your Honour, except for this:  we would think that our reply should not be strictly limited to prospective overruling but should include a reply on the Parton question, namely, what has been referred to as the broader excise issue.  But on the matters that, of course, Mr Jackson is addressing on first and therefore replying on last, namely, the issues of whether or not Dennis Hotels is distinguishable and whether Dennis Hotels, if not distinguishable, should be overruled, we would obviously say everything we have to say on that.  But as it is now turning out, it appears, if the Commonwealth is coming after us on the broader excise issues, that our reply not be limited just to prospective overruling but include that broader Parton issue, if I can call it that.

In terms of time, your Honour, was your Honour thinking of allocating those four different categories today in terms of time or could we leave it on the basis that we divide the time equally between us and if somebody wanted to - - -?

HIS HONOUR:   The time would be divided equally between - - -

MR SPIGELMAN:   The two parties; the two sides as it were.

HIS HONOUR:   - - - the two sides but I would like to have a timetable so that I could understand, as the case progresses, how the time is being consumed and I think that would be helpful to all parties to know.  It does not mean that it is necessary as between yourself and the States to allocate the time precisely but it is necessary, I think, so that we can understand the time at which you and the States have expired on your times and that it is time for Mr Solicitor for the Commonwealth or Mr Jackson to commence the argument.

MR SPIGELMAN:   Perhaps the simple way of doing it is for me to say that I do not think we will need more than half an hour in reply and that if

we set the first day up until 3.15, as Mr Jackson has indicated, and gave half an hour on the last day - maybe I should say 45 minutes for the reply, then whatever the equal division is between the two sides for the days in between, it could be calculated by someone with greater mathematical skill than my own.

HIS HONOUR:   So that you would have your two and a half days less 45 minutes.

MR SPIGELMAN:   That is so.

HIS HONOUR:   Commencing at the beginning of the second day.

MR SPIGELMAN:   At 3.15 I thought Mr Jackson - - -

HIS HONOUR:   Yes, 3.15.

MR SPIGELMAN:    - - - the first day.  And we would divide that amongst the States.

HIS HONOUR:   Yes, and then the time after that expires would then be for Mr Solicitor or for Mr Jackson up until that 45 minutes before the end of the fifth day.

MR SPIGELMAN:   Yes.  I think we could work that out if we have that terminus at each end.

HIS HONOUR:   Is that satisfactory to you, Mr Jackson?

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   And to you, Mr Solicitor?

MR GRIFFITH:   Yes, your Honour.  I take it the last two days are the 18th and 19th?

HIS HONOUR:   The last two days will be the 18th and 19th, yes, that is so.

MR GRIFFITH:   Your Honour, we do appreciate the Court is flexible from its published timetable in offering these two extra days.

HIS HONOUR:   Yes.  I might say that if the Court does sit on the 18th and 19th, I am by no means sure that the Court will be sitting the first week of the April sittings, but that is another matter.

MR GRIFFITH:   Well, your Honour, it is noted and appreciated.  Your Honour, I am sure we can work it out and even hope to finish a little bit earlier on the timetable.

HIS HONOUR:   Yes, the 17th is not available.  It is a public holiday in Canberra, apart from anything else.

MR GRIFFITH:   Another lost public holiday, your Honour.

HIS HONOUR:   It seems so, yes.  Well now, as to the written submissions on the question of prospective overruling, the Solicitor for the Commonwealth says that theirs can be ready by 3 March.  Can yours be ready a week before, Mr Spigelman?

MR SPIGELMAN:   I am sorry, we have put in our submissions, if your Honour please.

HIS HONOUR:   You have said all you needed to say on that subject.  Are there any other of the States who are wishing to put submissions on prospective overruling?  Mr Solicitor for South Australia?

MR SELWAY:   Your Honour, I do not know but there may be.  If so, a date a week before the Commonwealth’s, if that is appropriate.

HIS HONOUR:   Yes, that would make it 28 April which, however, is Easter Monday.

MR GRIFFITH:   No, your Honour, February.

HIS HONOUR:   Of course, I am a month out, I was reading the wrong one:  24 February.

MR SPIGELMAN:   Could that encompass us just in case we want to say something else, your Honour?  Any further submissions on 24 February.

HIS HONOUR:   Yes, very well.  24 February:  any further submissions which are to support the proposition that there is power prospectively to overrule and any submissions relating to the exercise of discretion to overrule prospectively are to be filed, and then any submissions contrary to those submissions, that is contending for the absence of power or for the

non-exercise of any discretion, to be filed by 3 March.  Now, Mr Solicitor for the Commonwealth, if I give you leave to add annexures which are designed to cope with specific and discrete aspects of the argument, will that cover you?

MR GRIFFITH:   Yes, it will, your Honour.  Your Honour, the discretion will not be abused and it will be done as a substitute for the time which otherwise would have taken oral argument to present.  So, your Honour, it will not be prolix but it will be an attempt to add to the efficiency of our submissions.  But one never knows, your Honour, it might produce the result that we could finish a day early.

HIS HONOUR:   Yes.  Are there any other submissions that need to be ‑ ‑ ‑

MR GRIFFITH:   Does your Honour’s leave embrace the possibility that our principal submissions may be over 20 pages on the same basis.  We will attempt to be concise, your Honour, but - - -

HIS HONOUR:   No, I had not anticipated that your principal submissions would be over 20 pages.  That is why I said the annexures could be in.  Frankly, I doubt whether written submissions which are over 20 pages are capable of shortening the time.

MR GRIFFITH:   Your Honour, one difficulty in constitutional cases - perhaps this is something we will have to successively raise with your Honours.  In constitutional matters, sometimes there is, in effect, two or three cases so that the 20-page limit does create difficulties to address the issues in a way that does expose it a little.

HIS HONOUR:   Yes.  However, on this occasion we have fairly discrete issues, do we not?

MR GRIFFITH:   Yes, your Honour.  Indeed, with archival conciseness, we would say, in our filed submissions on the excise point and we would use the same process on prospective overruling, but one never knows until one sees what it is presented against you, your Honour, but as your Honour has not granted us leave, we will stick to 12 point Helvitica and do it in 20 pages.

HIS HONOUR:   Yes.  I have noticed some tendency to adopt typing which is smaller than 12 print.

MR GRIFFITH:   We never do, your Honour. 

HIS HONOUR:   No, I am not suggesting that you do at all.  I have just noticed in other parts.

MR GRIFFITH:   Your Honour, we do, by and large, prefer to keep proper spacing and starting a new page than just to go for compression and we feel that does assist the Court too to make it more legible.

HIS HONOUR:   I can confirm that proposition, Mr Solicitor.  Are there any other directions required?  None from you, Mr Jackson, as to any question of written submissions?

MR JACKSON:   No, your Honour.  We would simply be in a position that we be bound by the orders your Honour has made in relation to the parties and the interveners generally.  Your Honour, the only other question - I know I always seem to raise all the time the question of costs - Your Honour, to the extent necessary, would your Honour certify for counsel?

HIS HONOUR:   Yes, I certify for counsel.  Thank you, gentlemen.  The Court will adjourn to a date to be fixed.

AT 3.02 PM THE MATTER WAS CONCLUDED