Hall v Liu; Yates v Frydenberg

[2019] HCATrans 194

[2019] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Melbourne  No M98 of 2019

B e t w e e n -

NAOMI LESLIE HALL

Petitioner

and

GLADYS LIU

Respondent

Office of the Registry
  Sydney  No S237 of 2019

B e t w e e n -

OLIVER TENNANT YATES

Petitioner

and

JOSHUA ANTHONY FRYDENBERG

Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 18 SEPTEMBER 2019, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MS L.G. DE FERRARI, SC:   If the Court pleases, I appear with MR J.E. HARTLEY for the petitioner in what I will call the Chisholm matter, and for the petitioner in what I will call the Kooyong matter.  I also appear for Ms Garbett on her summons filed 6 September 2019 in the Chisholm matter.  (instructed by Marque Lawyers)

MR P.H. SOLOMON, QC:   If the Court pleases, I appear with MR E.A. GISONDA for the respondent in both matters.  (instructed by HR Legal)

MR J.G. RENWICK, SC:   If the Court pleases, I appear with MR G.E.S. NG for the Australian Electoral Commission and we seek to be joined as a respondent.  (instructed by Australian Government Solicitor)

HER HONOUR:   Thank you.  Would you mind having a seat for the moment.  I will deal with the matters in a particular order, if you do not mind.  What I propose to do is to deal with the matters as follows.  I will deal with the substitution of the petitioner to make good that proceeding first.  I then propose to deal with the summons that Mr Renwick just identified filed by the Australian Electoral Commission.  Then third turn to what I might call the further conduct of the petitions.  Does anyone have any objection to that course?

MS DE FERRARI:   No, your Honour, that was ‑ ‑ ‑

HER HONOUR:   Mr Renwick, do you have any objection to that course?

MR RENWICK:   No, your Honour.

HER HONOUR:   Right.  May I deal first then with the summons in M98.  There are, in effect, two, Ms De Ferrari.

MS DE FERRARI:   There are.  I move on those summonses, your Honour.  They are supported by the affidavit of Michael Bradley which was affirmed on 21 August 2019 and I read that affidavit.

HER HONOUR:   Yes.  You require leave and there seems to be no objection.

MS DE FERRARI:   That is correct.

HER HONOUR:   Mr Solomon raised a question about advertising which seems to me, at least on first blush, subject to what he has to say to the contrary, not to be an issue for this reason, and that is that the rule was identified in the advertisement which was placed, as I read it, in accordance with the Act.  The decision that Mr Solomon refers to, which is the decision of Hawkins v Abetz, was in circumstances where the matter had come on where there had been no advertising.

MS DE FERRARI:   That is correct.

HER HONOUR:   Is there anything that I need to know about it before I make that order?

MS DE FERRARI:   Not from our perspective, your Honour.

HER HONOUR:   Mr Solomon, do you wish to be heard on this since you have made submissions on it?

MR SOLOMON:   No, your Honour.

HER HONOUR:   Thank you.  As a matter of procedure, it seemed to me to be incorrect to withdraw and then substitute because if I withdraw I have got nothing to substitute.  So what I propose, subject to anything you might wish to say about the form of the order, Ms De Ferrari, is as follows:

1.Pursuant to rule 32.05.3 of the High Court Rules 2004 (Cth), Vanessa Claire Garbett is substituted for Naomi Leslie Hall as the petitioner in the proceedings upon the petition, and the proceedings upon the petition shall be continued as if Vanessa Claire Garbett had been the original petitioner.

MS DE FERRARI:   We are content with that order, your Honour.

HER HONOUR:   Anyone wish to comment on the form of that order?  Mr Solomon?

MR SOLOMON:   No, your Honour.

HER HONOUR:   There will be an order in those terms in M98.

Can I then deal with the application by the Australian Electoral Commission which arises in both M98 and S237.  Mr Renwick, you move on your summons, as I understand it, which was filed in this Court on 3 September and supported by the affidavit of Grace Ng, is that correct?

MR RENWICK:   Exactly, and we have filed some submissions in support, and I can tell your Honour that there is no objection to the orders we seek, as we understand it, from the existing parties.

HER HONOUR:   Is that right, Ms De Ferrari?

MS DE FERRARI:   Yes, your Honour.  In our reply submission we have indicated we have no objection.  There is going to be an issue about exactly what role the AEC takes but that will be a matter for later on.

HER HONOUR:   Yes.  Mr Solomon.

MR SOLOMON:   That is correct, your Honour.

HER HONOUR:   Thank you.  So in each matter the order will be as follows – that is in both M98 and S237:

2.Pursuant to section 359 of the Commonwealth Electoral Act 1918 (Cth), the Australian Electoral Commission be granted leave to enter an appearance, and to be represented and heard thereon and shall be deemed to be a party respondent to the petition.

Are you satisfied, Mr Renwick?

MR RENWICK:   Yes, your Honour.

HER HONOUR:   That means you will need to take the necessary steps to enter an appearance and as a result of that in effect the title of the petition will be changed to reflect the fact that you have been added as a respondent in both matters.

MR RENWICK:   Yes, your Honour.

HER HONOUR:   Thank you.  Can I then move to what I will call the further conduct of the petitions?

MS DE FERRARI:   Yes, your Honour.

HER HONOUR:   Has there been any further discussions between you and Mr Solomon other than what I have been provided by way of submissions?

MS DE FERRARI:   There has been discussion between the instructors.  We have been advised of the name of the person to whom a subpoena should be directed in terms of the Victoria Division of the Liberal Party of Australia.  That is useful because that body is a somewhat strange body.  So we understand that there is going to be no cooperation in terms of obtaining documents from either Mr Frost or the Victorian Division of the Liberal Party.

HER HONOUR:   They are not parties to the proceeding, to the petition.

MS DE FERRARI:   No, they are not, but one would have expected that they would have assisted the respondents.  But there does not seem to be any point in contemplating a sabre order so the question will be an issue of subpoena to those individuals.

HER HONOUR:   Can I go back a stage?  Am I right that there are in effect four questions that are raised by each of these petitions?  By that I mean that – and this really deals with the substance – that there you seek to identify some illegal – and I put these in general terms because it will explain why I am asking these questions.  First, that there is some illegal practice.  Second, that the respective candidate had some knowledge of or gave some authority for that practice, conduct.  Third, that the result of the election was likely to be affected.  And, fourth, ultimately that it is just that the declaration of the invalidity or otherwise be made.

MS DE FERRARI:   That is correct, your Honour.

HER HONOUR:   Is it the position, given what you have just explained to me, that the third element – I withdraw that – the second element is something that is not going to be the subject, or possible subject, of agreement and require evidence?

MS DE FERRARI:   Well, prior to obtaining the submissions we thought we might be able to deal with it by agreement but it appears that that is not the case; there is going to be orders – there is going to be a need for orders, compulsive orders from this Court in order to obtain the relevant information and documents.  That is the position.

HER HONOUR:   Because that is not something this Court would ordinarily do.

MS DE FERRARI:   Well, your Honour, there have not been ‑ ‑ ‑

HER HONOUR:   The reason why I raise it – and I will put this bluntly so that everyone is on notice and can respond – if that is the position, and it seems having read the materials and the submissions that knowledge or authorisation – I will use it as a knowledge label for the moment – is a critical issue, and there is the lack of cooperation ‑ and I must say the lack of response despite the fact the respondents have had this material since 12 August when they filed their notice of appearance which itself is unsatisfactory, I accept – then the person who would ultimately try this matter would ordinarily be the person, i.e. the judge, who would make the procedural orders because they should not be made in a vacuum, they should be made in the context of understanding the issues and the way in which the parties before that judge explain how they propose the matter would proceed.

I must say, I am reluctant given the current state of play for it to be delayed any further while we have procedural orders or fights about whether or not responses are put in, the form of subpoenas when the matter could go before a trial judge who would hear the matter and take control of it.

MS DE FERRARI:   Your Honour is envisaging making an order setting down for trial and then for the ‑ ‑ ‑

HER HONOUR:   No, I was contemplating an order remitting it to the Federal Court so they can have a trial down there with a judge running it and making appropriate orders.

MS DE FERRARI:   Yes, I understand, your Honour.  Your Honour ‑ ‑ ‑

HER HONOUR:   Rather than wasting – not wasting, but rather than delaying further another two or three weeks while there is a fight about form of orders and the like.  I mean, it is clear that knowledge is in issue.

MS DE FERRARI:   Yes, your Honour.  The question why we – the reason why we framed the submissions the way we did – and as I understand neither party, there are now two respondents, taking an opposite view, is that once there was full information, for example, all the polling places where the conduct took place ‑ and I must say we had anticipated that the respondents would have no problem providing the documents and the information if they have got nothing to worry about, so to speak – but once we had that it might have been possible to actually possibly even get to an agreed statement of facts, possibly state some questions.

Now, they are going to combative, they are going to combative in this Court or they are going to combative in the Federal Court.  The question is one for your Honour really as to whether your Honour considers that the matter should not stay in this Court because of the combative nature of the proceedings.

HER HONOUR:   I think the argument – the fact is they are combative and that is unfortunate but the reality is knowledge is the big issue and that is going to ‑ ‑ ‑

MS DE FERRARI:   It is one issue, your Honour.

HER HONOUR:   It is a big issue and that is going to take a trial.  Evidence is going to have to be led and adduced.  Findings of fact are going to have to be made.

MS DE FERRARI:   Yes.

HER HONOUR:   In those circumstances, this Court is not likely to be in a position to do that.

MS DE FERRARI:   I understand what your Honour is saying and I cannot speak for what the Court is in a position to do.  Obviously, there has been evidence in other Court of Disputed Returns cases in this Court, for example, in the Roberts matter, so it is not unheard of that there is a trial or issues of evidence by this Court sitting as the Court of Disputed Returns.  Ultimately, I cannot argue against the proposition that the Act contemplates that one power that your Honour has is to remit it to the Federal Court.  I cannot argue against that, your Honour.

We just sought to identify why it would be appropriate to have some procedural orders to get the matter on track.  For example, the AEC has obviously flagged that there is a whole lot of evidence that they want to file.  There is no reason why that cannot be filed pretty quickly.

HER HONOUR:   That could be done with that order in preparation for – even if I made a remitter order.  I mean, for example, if I was – if the matter had been remitted to me in the Federal Court and I was faced with still a silence from the respondent and notification from the Commission that they intended to file evidence, then one would expect that by the time it got to the Federal Court that had been done without an order.

MS DE FERRARI:   I understand.

HER HONOUR:   So that is a different question.  My concern is where I have got serious issues of knowledge in both matters and it affects the way in which you would then order for the matters to be heard either together or not together.

MS DE FERRARI:   I understand, your Honour.

HER HONOUR:   I mean, there are really lots of interlinked issues which I think really should be left to the person who is going to hear it.

MS DE FERRARI:   Your Honour, I do not think I can say anything further except what I have said.  We have identified certain issues.  We had to put the submissions on when we put them on.  Your Honour has noted that we had asked right from the beginning for the information and no response was provided.  The position is that we are just now in the last two days having found what the position of the respondent was going to be.

HER HONOUR:   Yes.  I will hear from Mr Solomon and see whether he has got a position on this.

MR SOLOMON:   Your Honour, does your Honour conveniently have the ‑ ‑ ‑

HER HONOUR:   I would like to know what your position is, Mr Solomon.

MR SOLOMON:   We are going to make substantial admissions on the matters that are alleged that may remove the need for there to be interlocutory procedural fights.

HER HONOUR:   Why do I not have that – I mean, you have had this matter for six weeks, why do I find that on the day of the hearing?  I was not even in your submissions.

MR SOLOMON:   Your Honour, the answer to your Honour’s question is this.  We had misapprehended the allegation at 43c in the petition.  We came to understand the way in which that allegation was put yesterday.  We have proposed through our submissions for a response, and in answer to your Honour’s question we are going to make substantial admissions.  Is it of assistance for me to identify them?

HER HONOUR:   No, it may be in a moment.  Does that put to one side any question of knowledge?

MR SOLOMON:   No.

HER HONOUR:   Well, what I have been discussing with Ms De Ferrari is that very issue.

MR SOLOMON:   That is so, although that is not the subject matter of the information or the discovery, at least in the main the subject of the summons, insofar as those categories are concerned.

HER HONOUR:   I do not think that is right, with respect.  As I read the application for what I will call – just let me find my little chart – the respondents to provide evidence, including details of visits would seem to be directed directly at the question of knowledge.

MR SOLOMON:   Does your Honour have paragraph 47 in the Frydenberg petition?

HER HONOUR:   Yes.

MR SOLOMON:   We are intending to admit paragraph 47a.  So insofar as knowledge encompasses attendance ‑ ‑ ‑

HER HONOUR:   Yes.

MR SOLOMON:   ‑ ‑ ‑ we are admitting 47a.  Insofar as knowledge encompasses 48a, we are intending to say that the relevant authority was that of Simon Frost.  And insofar as 48b speaks to knowledge of the publication conduct, that allegation does not then find voice in paragraph 50 which, in its defined terms, speaks only to the allegation at 48a.  So, your Honour, may I very briefly – it may not assist your Honour and I will not do it if it does not, but may I briefly identify the admissions we intend to make from 43?

HER HONOUR:   Well, it might, but doing it on the run is not helpful, with respect.  Do you have a document that you prepared that outlines these matters?

MR SOLOMON:   No, your Honour.

HER HONOUR:   I see.  Have you been advised of this, Ms De Ferrari?

MS DE FERRARI:   No, your Honour, not at all.

HER HONOUR:   It is not a very helpful way of proceeding, Mr Solomon, in the circumstances.

MR SOLOMON:   Your Honour, we regret that the Court is not assisted.  Our position was to resist providing documents.  However, we seek for the matter to proceed with as limited a number of issues in play as possible and the way in which we intend to attend to that is by making substantial admissions on the factual matters.  It may be that those admissions have the consequence that many of the documentary requests fall away.

HER HONOUR:   Well, I have two issues before me.  I would like to know what is in dispute rather than what is admitted, that is on your case, so that I can identify with precision what is left, if anything, in order for me to address whether or not knowledge, as I suspect it is, remains in issue and a matter about which there would need to be a trial.  So what is left in dispute?

MR SOLOMON:   Thank you.  Paragraphs 48, 49 and 50 are the central matters in issue.

HER HONOUR:   So knowledge remains in issue?

MR SOLOMON:   Yes.

HER HONOUR:   So of the four limbs, or as I identified what I think or appear to be the four elements ‑ illegal practice, knowledge or authority, result likely affected and just declaration made – each of them is in issue?

MR SOLOMON:   Yes.  Your Honour, they are the central issues in the matter, of course.

HER HONOUR:   I accept that, I am just trying to work out ‑ ‑ ‑

MR SOLOMON:   I understand.  I apologise, your Honour.

HER HONOUR:   ‑ ‑ ‑ what it is – so having identified that each of the issues is in dispute, which I understood would be the case, what is limited to a dispute about 48, 49 and 50 does not limit the matters which you dispute.

MR SOLOMON:   It does not limit, as your Honour has identified, any of them; that is so.

HER HONOUR:   So I am actually quite at a loss then to understand how it has been narrowed.

MR SOLOMON:   The factual matters comprised in printing, distributing and publishing the corflute, the circumstance that the conduct occurred in Kooyong, the circumstance that the conduct occurred in Chisholm and the circumstance that Mr Frydenberg attended at the polling places at which corflutes were affixed to fences are not matters that for the purpose of resolving the dispute need to be the subject of documents or other information.  We thought by that being so we had substantially or wholly limited the application for information and documents ‑ ‑ ‑

HER HONOUR:   I know, but that is not my issue.

MR SOLOMON:   No.

HER HONOUR:   I am addressing a broader issue because, as I have put to Ms De Ferrari, it is the common practice that the trial judge would ordinarily ascertain those questions having determined what the proper response was and whether or not it was relevant to the issues in dispute.  My question is:  if it is, as I suspect, that knowledge, as you properly accept and remains in issue, then the matter should go before a person who is going to hear the trial on that question.

MR SOLOMON:   Well, we do not resist that proposition, your Honour.  It is a question of whether that person would be your Honour or a remitter to the Federal Court.

HER HONOUR:   Well, given the nature of the allegations and I expect at the inquiry, it may very well be that that is a broad inquiry; I do not know.

MR SOLOMON:   No, and we proposed that we put on our response that will admit the facts and leave the issues that the evidence be filed and that we return to your Honour for it to be identified whether or not the matter may stay in this Court or needed then to be remitted.

HER HONOUR:   Well, the problem about that is what I put to Ms De Ferrari, and that then puts it off another six or seven weeks which is contrary to the way in which the Act intends it to operate and in circumstances where you have had the material since 12 August and no response has been put on.  It seems to me that it may very well be appropriate for the matters to be remitted to a Federal Court judge and in the meantime you can take that very step, as well as the Australian Electoral Commission can put on whatever evidence they seek to put on and the trial judge can then make a real assessment of what should then happen.

MR SOLOMON:   So it may be that your Honour is minded to make the directions ‑ ‑ ‑

HER HONOUR:   No directions.  I expect you, as consistent with ordinary parties, to behave accordingly.

MR SOLOMON:   And, your Honour, we are grateful for the indication of how your Honour would see the matter proceeding.  We will put on a response by the end of next week.  We do not seek further to be heard on whether the matter stays in this Court or is the subject of remission.

HER HONOUR:   Just so I am clear, that is because, as I put to Ms De Ferrari, I am right to conclude that knowledge remains in issue and is going to be the subject of evidence?

MR SOLOMON:   Let me respond to that accurately.  Could your Honour look at paragraph 48?

HER HONOUR:   Yes.  There are two elements.  There is authorisation and permission, and there is knowledge.

MR SOLOMON:   That is so.  Your Honour, our intent is to put on detailed evidence from Mr Frost, the State Director, that will speak to those matters.

HER HONOUR:   I understand.  Thank you.  Mr Renwick.

MR RENWICK:   We cannot say anything against remitter in view of what your Honour has said.

HER HONOUR:   Do you have any view about it?

MR RENWICK:   We see the force in what your Honour has said, that the trial judge, given there must now be a trial of some sort, should be fully seized of the matter, and if that is not to be, your Honour, we can see why it should be remitted to the Federal Court.

HER HONOUR:   Ms De Ferrari, do you wish to be heard?

MS DE FERRARI:   No, your Honour.  I mean, I can go through the Act and indicate all the places where knowledge is – authorisation ‑ also omitting to do anything with knowledge is relevant to the provisions and the relief that we seek but I do not think that is a useful exercise at this point in time, given what has transpired.  Obviously, we cannot – we ourselves cannot put any evidence until we see what the respondents and the AEC want to put on.

Obviously, as well, we wish to particularise more where the conduct occurred, or the polling places, once we are told where it occurred; we do not know.  We did the best we could but we need to know that that is all the polling places.  That is obviously a relevant matter.  So those are matters that need to occur.  Other than that – the only other possibility is that it goes to the Federal Court for fact‑finding and then it comes back here, but that is the other possibility.

HER HONOUR:   Yes, I thought about that, under the Act there is power to do that, but it seems to me that is inappropriate.  It is always easier to decide facts in the context of legal questions or other issues and I think it is fraught with danger to split it.

MS DE FERRARI:   Of course.

HER HONOUR:   Unless you have a different view, I ‑ that is my view.

MS DE FERRARI:   Your Honour, we will not – I do not want to say anything further other than what we have said.

HER HONOUR:   Can I ask two other matters which affect, I think, both of you – that is, you and Mr Renwick ‑ and that is, I have one Victorian filed matter and one New South Wales filed matter, is there any discussion with you about what is to happen in relation to that aspect?  In other words, if they were to be remitted to the Federal Court it would be appropriate, it seems to me, that they went to the one registry of the Federal Court so that they could be handled expeditiously and quickly.

MS DE FERRARI:   Yes, your Honour.

HER HONOUR:   Have you had a discussion with Mr Solomon and Mr Renwick about that matter?

MS DE FERRARI:   No, your Honour.  We obviously would wish that they go to the Melbourne registry where the two Victorian electorates are.  It was filed in Sydney.  Obviously, this is a national court for reasons of ability to sign the petition but that was all.

HER HONOUR:   I see.  Mr Solomon, do you have a view otherwise?

MR SOLOMON:   No, your Honour, the circumstance that both seats are in Melbourne suggests the Melbourne registry is the suitable registry.

HER HONOUR:   Thank you.  Mr Renwick?

MR RENWICK:   We are content for it to go to the Victorian District registry, your Honour.

HER HONOUR:   Thank you.  Then the only other procedural issue I think arises about the deposit and my current view is that by making the

order for remitter the deposit would flow with you, that is, flow with the petitions and be dealt with accordingly at the end.

MS DE FERRARI:   Understood, your Honour.

HER HONOUR:   Having regard to the debate and discussion I have had with counsel it seems to me that it is appropriate, given this important question of knowledge remains in issue in the way it has been described by counsel for the respondent as well, that the matters are remitted, and that any of the procedural orders are made by the judge who ultimately is allocated the hearing of these petitions.  As I said during the course of debate, and notwithstanding that I have not made orders, I would expect that by the time it got to the Federal Court the respondents themselves had taken appropriate steps to put on their position formally and to the extent necessary file whatever they wish to file, and I mean well in advance of the next hearing.

MS DE FERRARI:   Thank you, your Honour.

HER HONOUR:   In each of the matters there will be orders to the following effect.  I propose to pronounce the orders once but they will be in each of the matters:

1.The petition be referred for trial to the Federal Court of Australia, Victoria Registry, pursuant to section 354(1) of the Commonwealth Electoral Act 1918 (Cth).

2.The Deputy Registrar of this Court forward to the proper officer of the Victoria Registry of the Federal Court of Australia copies of all documents filed in this Court.

Anything further, Ms De Ferrari?

MS DE FERRARI:   No, your Honour.

HER HONOUR:   Mr Solomon?

MR SOLOMON:   Thank you, your Honour, nothing further.

HER HONOUR:   Mr Renwick?

MR RENWICK:   No, thank you, your Honour.

HER HONOUR:   Thank you, each of you, for your assistance today.  Adjourn the Court.

AT 9.56 AM THE MATTERS WERE CONCLUDED