ICM Agriculture Pty Ltd & Ors v The Commonwealth of Australia & Ors

[2009] HCATrans 129

[2009] HCATrans 129

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S24 of 2009

B e t w e e n -

ICM AGRICULTURE PTY LTD

First Plaintiff

ICM AUSTRALIA PTY LTD

Second Plaintiff

HILLSTON CITRUS PTY LIMITED

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

NATIONAL WATER COMMISSION

Second Defendant

STATE OF NEW SOUTH WALES

Third Defendant

MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 (NSW)

Fourth Defendant

Directions

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 10 JUNE 2009, AT 9.16 AM

Copyright in the High Court of Australia

__________________

MR R.J. ELLICOTT, QC:   If your Honour pleases, I appear with MR M.G. McHUGH for the plaintiffs.  (instructed by Chris Naylor Legal Counsel)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MR C.L. LENEHAN for the first and second defendants.  (instructed by Australian Government Solicitor)

MR J.K. KIRK:   May it please the Court, I appear for the third and fourth defendants.  (instructed by Crown Solicitor (NSW))

HIS HONOUR:   Yes, Mr Ellicott.

MR ELLICOTT:   Your Honour, since the matter was last before your Honour there has been a considerable amount of work on the special case.  It has turned out to be a little more detailed and complex than perhaps we thought at first, but we are fairly well advanced with it.  We spent all yesterday on it.  We propose to meet again next Tuesday and in a broad sense we think that by the end of next week we should have agreed on a special case that we can put in front of your Honour.

That depends to some degree on the State because the State has not been able to fully participate in those discussions.  But as I understand it, the part of the case that was given to us by the Commonwealth ultimately – when I say ultimately, it was the third draft – it apparently had been agreed between the Commonwealth and the State.  We have indicated certain amendments.  I did not, as a result of discussions yesterday, get any impression that there was any great blockage in the system.  So it should turn out that by the end of next week with the will of the parties we will be in that position.

Needless to say, the Court will want to have a look at it and it is a question of when your Honour might think it would be desirable to have a determination by your Honour of the matter with the special case in front of your Honour.  It may be a bit optimistic to think we can do it next Friday and I just do not know what the convenience of the Court is beyond that.  That is the current position, your Honour.

HIS HONOUR:   Yes.  There are sittings here next week and then the week after that it is in Brisbane and, subject to what I hear from the others and subject to the availability of a video link from Brisbane which I presume is possible, we could bring it back on Friday week for resolution.  I notice, looking at the defences, that there were some factual issues raised in the defences which I thought might have been the subject of some difficulty.  Has that presented any difficulty?

MR ELLICOTT:   Not so far, your Honour.  There is an area of debate in relation to the issue of whether just terms are provided, but there has been a concession on the pleadings in relation to that but there is an outstanding argument that Mr Gageler wishes and the State wishes to put based on the decision in Nelungaloo and the Solicitor no doubt can expand on that.  That, we thought, might be an area of debate, but otherwise, subject to documents being produced by the State, we are not seeing any ultimate difficulty as plaintiffs at this stage.

HIS HONOUR:   Yes, all right, Mr Ellicott.  I will hear from the Solicitor then and Mr Kirk.  Yes, Mr Solicitor.

MR GAGELER:   Your Honour, we are heading towards a special case.

HIS HONOUR:   Asymptotically or directly?

MR GAGELER:   We are meandering around a little but with some hard work and goodwill it is likely that we will get to the point of agreement.  Whether we can do it by next week is another matter.  Mr Ellicott is to provide us, I believe, today with some additions to the draft special case which he has foreshadowed in very broad terms.  From the way in which he has foreshadowed those additions, it seems that there will be a need for the State and the Commonwealth to seek some detailed instructions.  That can probably be done fairly quickly but whether or not it can be done by next week is another matter.

HIS HONOUR:   What I would be inclined to do, Mr Solicitor, just to provide a safety buffer for everyone, is to bring the matter back in the week that we are in Brisbane, subject to – I presume we can set up a video link from Brisbane for that purpose.  I am informed that we can.  But if it happens that the parties are in a position to come back earlier, then we can always re‑list on short notice some time late next week.  Otherwise I will fix a date for the week following in Brisbane, probably the Friday morning.

MR GAGELER:   Yes.  Your Honour, to indicate where the parties are coming from, we were aiming, if it were possible and it suited the convenience of the Court, to have the case ready for hearing in the August/September sittings.  We have had some discussions about the timing.  We think probably three days.  There is the Arnold Case to be slotted in there somewhere.

HIS HONOUR:   Yes.  The application for special leave in Spencer, as you will be aware, has been deferred until after all of this, so it is just conjoining this with Arnold in the most convenient way.

MR GAGELER:   Yes.

HIS HONOUR:   Thank you, Mr Solicitor.  Mr Kirk.

MR KIRK:   Your Honour, I have nothing to add to what the learned Solicitor has said with which I agree.

HIS HONOUR:   Thank you.  Yes, Mr Ellicott?

MR ELLICOTT:   Your Honour, Mr Morling and I have done something.  We have arranged to go to Lake Eyre the week after next, but I will not be back in Sydney until the afternoon of that Friday.  Would it be convenient or would it be inconvenient to the Court?  I could possibly do it from Adelaide if that was ‑ ‑ ‑

HIS HONOUR:   This is the afternoon of Friday, 26 June 2009?

MR ELLICOTT:   Yes, your Honour.

HIS HONOUR:   Yes.  Well, it is of no concern to me because I am in Brisbane until the Saturday morning, so we can make it perhaps – what is the time difference between Brisbane and Sydney?

MR ELLICOTT:   None.

HIS HONOUR:   None now, all right.  We could make it perhaps 4.00 pm on 26 June 2009.

MR ELLICOTT:   Yes, if your Honour pleases.  If that is convenient to my friends.

HIS HONOUR:   You will be in the jurisdiction then, Mr Ellicott?

MR ELLICOTT:   Yes, I will be back here by about 11 o’clock or 12.

HIS HONOUR:   As long as you are not late, otherwise you had better have a standby because I do not want it to go over into the following week.

MR ELLICOTT:   No, your Honour, there will be no problem.

HIS HONOUR:   Yes, all right.  Let me just formulate some orders.  I want just to have a timeframe for the filing of the special case, so I think I would suggest Wednesday, 24 June 2009.  Is that going to create a problem?

MR GAGELER:   I do not think so, your Honour.

HIS HONOUR:   Mr Ellicott?

MR ELLICOTT:   No, your Honour.

HIS HONOUR:   The orders will be as follows:

1.The directions hearing is adjourned to Friday, 26 June 2009 at 4.00 pm by video link from Brisbane.

2.The proposed special case to be filed no later than Wednesday, 24 June 2009.

3.Liberty to the parties to apply at short notice to re‑list the directions hearing.

4.Costs today reserved.

So the import of the third order is that if you can all, as it were, get your act together before the end of next week, you can bring it on while we are still here Canberra.  Thank you.  We will adjourn now.

AT 9.26 AM THE MATTER WAS ADJOURNED