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

[2009] HCATrans 94

[2009] HCATrans 094

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

Summons for Directions

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 2009, AT 4.30 PM

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

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

HIS HONOUR:   Mr Ellicott, I see there is a preference for a special case.

MR ELLICOTT:   Yes, your Honour, and no doubt your Honour has read the statement of claim and everything and knows basically what the case is about.

HIS HONOUR:   Yes.

MR ELLICOTT:   We have sought to outline that in our submissions.  There is contained within paragraph 2 of the outline of submissions of the Commonwealth, first and second defendants, a timetable and I think it is fair to say that all parties agree that this is a case susceptible to a special case.  We have already had discussions which have indicated that they wish some particularity in our statement of claim about what the property is.  That statement of claim with that amendment with other required amendments it is suggested we have till next Friday.  We do not need till then.  I have given my friends a draft today and I will tell my friends by close of business on Monday of any other amendment we will make and we will file that with the Court on Tuesday next.

HIS HONOUR:   Which is the?

MR ELLICOTT:   That is the 5th.

HIS HONOUR:   All right. 

MR ELLICOTT:   Then the defendant file and serve their defences and demurrers on or before 15 May.

HIS HONOUR:   Yes.

MR ELLICOTT:   Now, we are content with 3 and 4.  Your Honour, before one goes to 5, that is the return date – it obviously is the convenience of the Court – I must say that having had discussions with Mr Kirk it is likely that the State will want to put in some facts which will not necessarily be matters known to the Commonwealth, nor necessarily to the plaintiffs, and we may want facts which are in the knowledge of the State and there is some need, I think both of us agree, to start that process earlier than the date when Mr Solicitor starts his task, not that we had discouraged him from starting it before.

But what I suggest - and I think Mr Kirk might agree to this - that by close of business on Tuesday, we each exchange letters which will set out broadly the areas of fact that we might want either from the other, or generally speaking as to what the State might want to add or what we might want to add, generally speaking.  That is intended to start a process – I am stating it in general terms because it is intended to start a process which is mutual.  We will try and do our best to get this case in a proper state to bring back to the Court early in June, but departmental ‑ ‑ ‑

HIS HONOUR:   So you are forming something along these lines - by close of business 5 May the parties exchange letters setting out factual matters which may need to be established by agreement as part of the special case?

MR ELLICOTT:   Yes.  That is as between the plaintiffs and the State.  The Commonwealth if it wishes to join in that process, we would be happy for it to do so, but I have not ‑ ‑ ‑

HIS HONOUR:   If there is nothing that you want to say then there is nothing ‑ ‑ ‑

MR ELLICOTT:   No.

HIS HONOUR:   In other words, I can make that global without – and if the Commonwealth has nothing to say then it does not need to ‑ ‑ ‑

MR ELLICOTT:   Yes, they will get the letters and if they want to say anything they will.  They have already co‑operated by giving us a list of the various statutes and appropriations under which the relevant appropriations have been appropriated.

HIS HONOUR:   Do you agree with that, Mr Kirk?

MR KIRK:   Not quite, your Honour.

HIS HONOUR:   I will hear from you in a moment then.  Yes, all right.

MR ELLICOTT:   That is it, your Honour, and I do not think I need delay, I think your Honour has the substance of the matter.

HIS HONOUR:   There have been some submissions filed in relation to the timing of the hearing of the Arnold matter.  In that matter earlier today we granted special leave save for the section 100 ground which is referred to a Full Court.

MR ELLICOTT:   I think we were all present.

HIS HONOUR:   You were all present.  All right.  Do you have any submissions in relation to the conjunction of the hearing of that matter with the hearing of this?

MR ELLICOTT:   We would prefer that argument in the Arnold matter or Spencer matter – I think there are certain submissions in relation to that – should follow ‑ ‑ ‑

HIS HONOUR:   Spencer is not being the subject of a grant.

MR ELLICOTT:   If there is to be that both of those should follow this case, we see a complication arising in the course of the argument because of the factual differences or the lack of facts in one case maybe, and the presence of them ‑ ‑ ‑

HIS HONOUR:   There would obviously be different elements in Arnold, but certainly some of the legislative framework and so forth would be common.  There would be some common argument, would there not?

MR ELLICOTT:   Yes, there may well be.

HIS HONOUR:   So it might be convenient to list them – perhaps that is a matter we can give further directions on when we see the crystallised shape.  It would be a special case.

MR ELLICOTT:   It is really a matter for the Court; we appreciate that, your Honour.

HIS HONOUR:   Yes.  I would be inclined to want to integrate at least those two if it were possible.  The other one sits off slightly in a different category perhaps.

MR ELLICOTT:   Yes.  There are complexities in the argument and in the case itself.

HIS HONOUR:   Of course, yes.

MR ELLICOTT:   There are new areas to explore and I suspect if you put them together it might take from three to four days, I do not know.  Let us see what happens.

HIS HONOUR:   We might get some synergies out of it.

MR ELLICOTT:   Yes, your Honour.

HIS HONOUR:   Thank you.  Yes, Mr Kirk.

MR KIRK:   Thank you, your Honour.  The only extent to which I cavil with what my learned friend has said is that my understanding of the proposal and, indeed, what I suggest is that the order be something like:  by close of business 5 May 2009 the parties exchange any requests for information or documents.  One possible construction of what my learned friend put, as I understood it, was that we would be exchanging drafts of what we would hope to add to this special case, and we are not going to be in a position to do that, but insofar as we seek information and documents from each other, we can certainly seek to do that by Tuesday.

HIS HONOUR:   But otherwise you are happy with the program.

MR KIRK:   Yes, your Honour.

HIS HONOUR:   Yes.  Mr Solicitor.

MR GAGELER:   Your Honour, I am of course content with the program, having proposed it.

HIS HONOUR:   Yes, indeed.

MR GAGELER:   So far as the listing of the matter is concerned, your Honour, we could possibly talk about that on the next occasion, but we flagged in our submissions that we saw a difficulty with listing this matter concurrently with the Arnold matter, if only of a technical nature, given that you have one matter in the original jurisdiction of the High Court, the other matter on an appeal confined to the record ‑ ‑ ‑

HIS HONOUR:   Well, that has happened before.  Think of all those migration cases, special leave applications, and ‑ ‑ ‑

MR GAGELER:   In all of those migration cases – one can bifurcate the mind, but what we would propose, your Honour, would be consecutive hearings with this matter going first.

HIS HONOUR:   I think we can finetune that detail.  They will no doubt be heard in the same sitting and perhaps either one after the other or depending on how things fall out, concurrently, but we will work that out in the directions.  I have a sense that they will both be around the same time anyway.

MR GAGELER:   Yes.

HIS HONOUR:   Just taking the list of orders proposed in paragraph 2 of the Commonwealth’s submissions:

1.The plaintiffs file and serve an amended statement of claim on or before 5 May 2009.

2.By close of business on 5 May 2009, the parties exchange any requests for information or documents.

3.The defendants file and serve their defences and any demurrers on or before 15 May 2009.

4.The first and second defendants provide to the other parties a draft form of special case on or before 27 May 2009.

5.The first and second defendants file any draft special case as may by then be agreed between the parties on or before 5 June 2009.

My inclination would then be to bring it back for directions perhaps on 10 or 11 June.  Is there any difficulty with that?  Let us say for the moment 10 June at 9.15.  I can either do it by video link from Canberra or here, but we will work that out administratively.  We will list it here for the time being in Sydney.

All right, I think that is all on that, is it not?

MR ELLICOTT:   Yes, your Honour.

HIS HONOUR:   Yes, all right.  Thank you very much.

AT 4.41 PM THE MATTER WAS CONCLUDED