HBSY Pty Ltd v Lewis & Anor

[2023] HCATrans 175

[2023] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S106 of 2023

B e t w e e n -

HBSY PTY LTD ACN 151 894 049

Plaintiff

and

GEOFFREY LEWIS

First Defendant

THE FEDERAL COURT OF AUSTRALIA AND THE JUDGES THEREOF

Second Defendants

STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 22 NOVEMBER 2023, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the Court’s practice for remote hearings, I will announce the appearances.

MR M.K. CONDON, SC appears with MR D.K. SMITH for the plaintiff.  (instructed by Roberts and Partners Lawyers)

MR P.J. MENADUE appears for the first defendant.  (instructed by Shields Lawyers)

HIS HONOUR:   There is a submitting appearance for the second defendants.  Mr Condon, I have received your proposed orders.  Has Mr Menadue seen them?

MR CONDON:   He has, yes, your Honour.

HIS HONOUR:   All right.  Mr Menadue, what do you have to say about them?  Sorry, you are still on mute.  Go ahead.

MR MENADUE:   The only issue was whether or not the Court might be minded to dismiss the matter under 527 – rule 7, I think it is, of the High Court Rules, and I must say I am not entirely sure whether that might be activated in the procedure.  But otherwise, I have no real complaints about the timetable.  The only issue, really, is the dates to be inserted.

HIS HONOUR:   Well, I am not minded to dismiss it today.  I do think probably the most efficient way of resolving this decision is to have it referred to a Full Court for hearing, rather than sending you all back down to the Supreme Court of New South Wales to await your fate, I think it will be cheaper and more efficient to do it this way.  Mr Condon, one of the steps that is not included in your proposed timetable is for the parties to agree upon some facts.  Given we are in the original jurisdiction of the High Court, we will need some facts to be agreed in order to enliven our jurisdiction and to ensure that we have a real controversy.

The sort of facts I had in mind are really those which are set out in paragraphs 1 to 14 in the reasons of the Full Court of the Federal Court.  I may be wrong, but they seem to be relatively uncontroversial, they just simply frame the basic history of what has happened and why you ended up in the Federal Court, and what the underlying dispute is.  Obviously, we are not going to determine the underlying dispute, we are just going to determine the issue of jurisdiction.  Is that something which you think is feasible?

MR CONDON:   The answer is yes, and with respect to your Honour, those paragraphs so identified do seem to set out the material facts which would make this dispute ripe.  I will double‑check that, but I think, with respect, what your Honour has said is correct, and it is feasible.

HIS HONOUR:   Mr Menadue, do you agree with that?

MR MENADUE:   I would agree with that.  I think there is very little controversial about the decision of the Full Court other than, in a sense, the conclusion.

HIS HONOUR:   Yes, the question of law.  Yes.  Well, I think that will be a necessary step, so the first order that I would make today – it is not quite in your terms, Mr Condon, but the first order will be:

1.The plaintiff’s application for a constitutional or other writ filed 30 August 2023 be referred to the Full Court for hearing.

The second order will be that:

2.The parties are to confer and are to file a statement of agreed facts by –

Pick a date, Mr Condon.

MR CONDON:   Your Honour, we could do that by the end of this year, so I think it is probably December 17, your Honour.

HIS HONOUR:   You are agreed to that?

MR CONDON:   December 15, I apologise.

HIS HONOUR:   That is the Friday?

MR CONDON:   Indeed.

HIS HONOUR:   Mr Menadue, does that suit you?

MR MENADUE:   It does, your Honour.

HIS HONOUR:   All right.  So, that will be:

by 15 December 2023.

The next order will be that:

3.The plaintiff is to file and serve a court book by –

When, Mr Condon?

MR CONDON:   Can we have a date towards the end of January, your Honour?

HIS HONOUR:   You can.  Pick a date.  The 28th, I think, is a Monday.

MR CONDON:   That would be suitable, thank you, your Honour.

HIS HONOUR:   All right – by 28 January 2024, do you have a problem with that, Mr Menadue?

MR MENADUE:   No, your Honour.

HIS HONOUR:   So, the order will be:

3.The plaintiff is to file and serve a court book by 28 January 2024 in a form satisfactory to the Registrar.

That will mean that I do not have to worry about it.  The next order will be that:

4.Part 44 of the High Court Rules shall apply to the proceeding and to the preparation of written submissions, making the necessary adjustments, and:

(a)the time for the plaintiff to file and serve its written submissions and chronology shall be –

Mr Condon?

MR CONDON:   Can I suggest 8 February, your Honour?

HIS HONOUR:   

8 February 2024;

(b)the time for the first defendant to file and serve his submissions shall be –

Mr Menadue?

MR MENADUE:   Four weeks after that, your Honour, I am not sure what the exact ‑ ‑ ‑ 

HIS HONOUR:   I shall do what you cannot do, and reach for my calendar and take a look.

MR MENADUE:   I am sorry, your Honour.

HIS HONOUR:   So, 8 February is a Thursday.  What about 7 March?

MR MENADUE:   That will be fine, your Honour.  Thank you.

HIS HONOUR:   We will make that:

7 March.

5.The time for the plaintiff to file and serve its submissions in reply shall be –

Mr Condon?

MR CONDON:   28 March, your Honour.

HIS HONOUR:   Are you happy with that, Mr Menadue?

MR MENADUE:   Yes, your Honour.

HIS HONOUR:   And the next order will be:

6.The plaintiff is to file and serve the joint book of authorities prepared in accordance with Practice Direction No 1 of 2019 by –

Mr Condon?

MR CONDON:   11 April, your Honour.

HIS HONOUR:   11 April, Mr Menadue, any problems with that?

MR MENADUE:   No, your Honour.

HIS HONOUR:   I will then reserve costs.  What is your estimate, Mr Condon?

MR CONDON:   One day, your Honour.

HIS HONOUR:   One day.  Mr Menadue?

MR MENADUE:   I would have thought half a day, your Honour, but maybe a day.  Half a day plus, your Honour.

HIS HONOUR:   Let us just put it down for a day, and you can be at your leisure as you make your submissions.  Sorry, Mr Menadue, you were going to say something.

MR MENADUE:   I do have just one question, your Honour, in relation to the orders for the filing of written submissions, I note that Part 44 has some provision in it for any further material for creating a court book.  Does that cover that?  I am not at the moment suggesting that we intend to do that, but just for more abundant ‑ ‑ ‑ 

HIS HONOUR:   If there is any further material that you need to put in, like a book of further materials, you can sort that out when you do the court book, but I cannot imagine there will be anything.

MR MENADUE:   I cannot either, your Honour.

HIS HONOUR:   The question of law is ripe for determination, having regard to the facts at paragraphs 1 to 14.  Mr Condon, you wanted to say something.

MR CONDON:   I apologise for speaking over both your Honour and Mr Menadue.  I should remind your Honour, given your Honour’s question about the estimated time, that we have issued a notice under section 78B, and as matters presently stand we are yet to receive a response from the States of New South Wales and Victoria, and also the Commonwealth.

HIS HONOUR:   Well, normally what would happen, if there were interveners who wanted to intervene, you would come back to me – I would have notice of it, and we would just re‑jig the timetable, and you could probably do it by consent, and I will make the orders in chambers.

MR CONDON:   I am grateful, thank you, your Honour.

HIS HONOUR:   But I am not expecting interveners in this case.

MR CONDON:   Indeed.

HIS HONOUR:   All right.  Anything else?

MR MENADUE:   No, your Honour.

MR CONDON:   For our part, no.  Thank you, your Honour.

HIS HONOUR:   May I thank the parties for their attendance here in Court today.  I will make those orders, and I wish you all the best of luck.  Adjourn the Court, please.

AT 9.38 AM THE MATTER WAS ADJOURNED