JT International SA v Commonwealth of Australia

[2012] HCATrans 80

[2012] HCATrans 080

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S409 of 2011

B e t w e e n -

JT INTERNATIONAL SA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Summons

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 26 MARCH 2012, AT 10.16 AM

Copyright in the High Court of Australia

MR G. GRIFFITH, QC:   Your Honour, I appear with MR C.O.H. PARKINSON for the plaintiff.  (instructed by Johnson Winter & Slattery)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear with MR S.B. LLOYD, SC for the defendant.  (instructed by Australian Government Solicitor)

MR GRIFFITH:   Your Honour, this is a return of a summons dated 20 March.

HIS HONOUR:   Yes.

MR GRIFFITH:   It is an unusual summons.

HIS HONOUR:   Yes, I see that.

MR GRIFFITH:   It was generated, your Honour, by the letter of 16 March which is exhibit AFJ-1 which we have set out in our written submissions, the salient parts.  Your Honour, what is there said more or less unilaterally by the Commonwealth was, your Honour, it intends to submit in these proceedings and to rely in part on Schedule C documents which, of course, your Honour, are these, with the additions, now some 6,750 pages of various documents which we understand the Commonwealth wishes at some point to rely upon for this Court to be asked to find constitutional facts rather than for the matter to be remitted.

Now, your Honour, it appears on our summons being issued that much the same contention arises in paragraph 4 of the filed submissions from the Commonwealth, but as we understand paragraph 9 of those submissions, what the Commonwealth appears to be saying, your Honour, that if the demurrer is overruled and there is a finding of constitutional facts in the BAT action, in that case JTI will be bound by that finding of constitutional facts.  In effect, as we understand what is being put, your Honour, the Court would then enter final judgment against us if the demurrer was overruled without any further consideration of the pleadings or remitter or any issue of that sort.

Our position, your Honour, is firstly, that would give rise to prejudice to our position, having pleaded our demurrer.  Of course, your Honour, on the demurrer we cannot take any position contesting these Schedule C materials.  In effect, your Honour, we would say that would be to abrogate the demurrer proceedings because it has been put against us.  It is no use, unless you win on the issue, that these materials are relevant in seeking to isolate out that issue for determination and if it is decided in our favour we would say then judgment would be entered for our claimants, your Honour, that the Act be held invalid or inoperative by reason of section 15.

Your Honour, what we say is contrary to paragraph 8 of the submissions made against us, we are entitled both to demur and to put facts in issue and that it is not the case that now is the time for JTI to say something about the suggested finding of constitutional facts.  Indeed, your Honour, we had no opportunity to do so because we are bound by our own election to have taken the demurrer.

HIS HONOUR:   You refer to what was said in South Australia v The Commonwealth 108 CLR and what was said by Justice Hayne and myself in Wurridjal 237 CLR.

MR GRIFFITH:   It is all rather trite in a way, your Honour.  It is a question of what we do about it in a practical way.  Firstly, your Honour, until we had these written submissions, and we just had the letter, we were uncertain what the Commonwealth was about but we did not like the look of it.  Now, we have it, your Honour, we still have some residual uncertainty but what we see, in essence, is the Commonwealth seeking to abrogate the effect of the order which your Honour made for our demurrer to be set down at the same time to give the entire Court an opportunity of choices to have the issues maybe determined.

If I can make another comment, your Honour, we would say, as a matter which is self‑evident but perhaps not entirely appropriate for us to make because we do not intend to get involved in the Schedule C documents, that merely because one can invite the Court, as it appears the Court is getting invited by the Commonwealth to make findings of constitutional fact, it does not necessarily follow that the Court would regard as appropriate in this matter, given the extent of the materials in a matter of worldwide controversy as to the issues which they cover, as to whether the Court necessarily would respond to that invitation even if these matters were held to be relevant and itself, your Honour, determine the issues of constitutional fact.  That is a matter of continuing controversy which should be, in our submission, resolved by the entire Court.

Your Honour, it is a question of what is appropriate to deal with it.  Your Honour will see from the chapeau to our filed submissions for 17 April, which I think your Honour has only had for 50 minutes or so ‑ ‑ ‑

HIS HONOUR:   We have the advantage of your final submissions, I think.

MR GRIFFITH:   Yes, your Honour.  What I was saying, the chapeau to those, your Honour, really addresses the issue which ‑ ‑ ‑

HIS HONOUR:   Yes.  Paragraphs 20 to 24.

MR GRIFFITH:   Also just the top paragraph, your Honour. 

HIS HONOUR:   Yes.

MR GRIFFITH:   What we say is that it is something for the entire Court.  We must accept that, but, your Honour, having regard to the materials which your Honour now is aware of the extent of them, the aspects of controversy that is involved and the issue of this matter coming on on 17 April without these matters addressed, our submission is that it would be appropriate to have the matter brought on for mention some time during this week, which is the last sitting week before 17 April.

HIS HONOUR:   That cannot be done, I am afraid.

MR GRIFFITH:   If that cannot be done, your Honour, that is one possibility which we will put on one side.  The other possibility, your Honour, is then what should be done to lift what now is a more than incipient threat with respect to our position that we have demurred and your Honour has set that demurrer down.

HIS HONOUR:   That is right.  This will be the threshold of that.

MR GRIFFITH:   Yes, it will, your Honour.  So what we sought to do by issuing our summons is to ‑ ‑ ‑

HIS HONOUR:   I follow that. 

MR GRIFFITH:   ‑ ‑ ‑ go through the range of possibilities to address that and, of course, your Honour, if it is the case that it cannot be set down for mention during the course of this week, it will remain an initial overhang to be addressed when the matter comes on.

HIS HONOUR:   On 17 April that will be.

MR GRIFFITH:   Yes.

HIS HONOUR:   What I propose also is that there be a supplementary demurrer book which your side can prepare, I suppose, having in it the affidavit of Mr Johnson, your summons and the submissions by the Commonwealth and by yourself which are before me this morning.

MR GRIFFITH:   Would your Honour like us to do a consolidated one, rather than have two small volumes?

HIS HONOUR:   Well, the other one has already been distributed.

MR GRIFFITH:   Yes, so just a supplemental one. 

HIS HONOUR:   Yes, just do a supplementary one.

MR GRIFFITH:   We can do that, your Honour.

HIS HONOUR:   Yes.

MR GRIFFITH:   Otherwise, your Honour, we would submit that in that context our summons should be adjourned over to be brought on on the 17th.

HIS HONOUR:   Yes, that is what I would propose to do.

MR GRIFFITH:   I thought your Honour might do that, but we wish to exhaust the possibilities.

HIS HONOUR:   Yes, I understand.

MR GRIFFITH:   Thank you, your Honour.

HIS HONOUR:   Yes, Mr Solicitor.  What do you get out of Breen v Sneddon?

MR GAGELER:   Your Honour, my learned friend seeks to lock in a procedure by which his client cannot lose and seeks to do that by seeking to limit the course that the Full Court might adopt as a consequence of the determination of his demurrer.  What he says is if he wins on the demurrer, then he wins and the legislation is invalid.  If the Commonwealth ‑ ‑ ‑

HIS HONOUR:   But if you win ‑ ‑ ‑

MR GAGELER:   If the Commonwealth wins on the demurrer, then the validity of the legislation, apparently vis-à-vis his client, remains undetermined unless and until there is a trial of fact.  Our position is simply this.  If the Commonwealth wins the demurrer on an assumed fact that is found as a constitutional fact in the BATA proceedings ‑ ‑ ‑

HIS HONOUR:   When you say “found as a constitutional fact”, you say an assumed fact found is a constitutional fact.  That is not what demurrers are about.

MR GAGELER:   No.  The demurrer in his proceeding proceeds on the assumption that the facts pleaded in our defence are not true.  Concurrently, or at least sequentially, there will be another proceeding where those very same facts will be in issue and capable of being determined as facts.  If those facts are found in that proceeding, he should not be entitled to contest those facts by a subsequent trial in his own proceeding.  That is the point.  That is the point we wish to put in submissions to the Full Court.

HIS HONOUR:   You can divert us at the beginning of the proceeding, I suppose, on the 17th.

MR GAGELER:   Yes.  I would rather do it at the end, but I will do it at the beginning if I need to.

HIS HONOUR:   No, it will be done at the beginning.  Those instructing you seem deeply enamoured of these Schedule C materials as the only path home that you seem to have.

MR GAGELER:   Your Honour, not at all, but it is a path that we do not wish to understate and the point is this, if I can crystallise it.  What our learned friend says amounts to an acquisition of property is, in our submission, the regulation of the principal means of promotion of a product that is gravely harmful to the public health by means that are appropriate ‑ ‑ ‑

HIS HONOUR:   Well, is it not enough for you to say – I do not want to get too far into this – is arguably gravely injurious to public health?

MR GAGELER:   Probably, unless the test is something closer to reasonable necessity of the kind that is articulated in some of the section 92 cases.

HIS HONOUR:   That is what you want Breen v Sneddon for, is it?

MR GAGELER:   I want Breen v Sneddon for a couple of points, but to respond to my learned friend, I want Breen v Sneddon to say if constitutional facts are found in one case, then there has to be extremely good reason for those same constitutional facts to be contested in another case. 

HIS HONOUR:   Yes, I see.

MR GAGELER:   That is what I want Breen v Sneddon for.

HIS HONOUR:   I see, thank you.

MR GRIFFITH:   Your Honour, could I say something before your Honour goes off?

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, I wish to make clear that we concede the validity of the Act under the corporations power.  We are bound by it, so it is merely a question of whether or not there is an acquisition from the point of view of constitutional power.

HIS HONOUR:   Yes.

MR GRIFFITH:   So far as Breen v Sneddon is concerned, it decides what it says, but what we say is part of the mix that we would like to address the Full Bench on as an initiating matter, your Honour, is whether, having regard to all those circumstances, the Full Bench should engage in considering whether it should find those constitutional facts or get our demurrer out of the way first and then think of what it should do.  If your Honour pleases.

HIS HONOUR:   Yes, I understand.  How soon could this supplementary demurrer book be prepared?

MR GRIFFITH:   Tomorrow morning, I expect.

HIS HONOUR:   Yes, counsel always say that and the solicitors have a heart attack.

MR GRIFFITH:   I did not hear a noise from behind me, your Honour, but it should be that quick.

HIS HONOUR:   This is what I propose:

1.On or before 30 March 2012 the plaintiff file and serve a supplementary demurrer book containing:

(i)the summons filed on 20 March;

(ii)the affidavit of Mr A.F. Johnson sworn on 20 March;

(iii)the Commonwealth’s submissions filed on 22 March;

(iv)the plaintiff’s submissions filed on 23 March, and

(v)the transcript of the proceedings today.

2.Stand over the summons filed on 20 March to the Full Court hearing commencing on 17 April 2012.

3.Costs of today will be costs on the demurrer.

MR GRIFFITH:   We are indebted to your Honour for hearing this matter at short notice.

HIS HONOUR:   Thank you, gentlemen.  I will now adjourn.

AT 10.33 AM THE MATTER WAS ADJOURNED