Keating v Director of Public Prosecutions (Cth)

[2012] HCATrans 365

[2012] HCATrans 365

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M74 of 2012

B e t w e e n -

KELLI ANNE KEATING

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Respondent

Directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 18 DECEMBER 2012, AT 9.32 AM

Copyright in the High Court of Australia

MS K.L. WALKER:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Victoria Legal Aid)

MR G.A. HILL:   Your Honour, I appear on behalf of the respondent.  (instructed by Director of Public Prosecutions (Cth))

HIS HONOUR:   Yes. I have received the draft stated case and questions reserved. May I draw attention to some matters which really are little more than drafting quibbles, but they may be desirable? It may be useful if under the heading there is a chapeau to the effect of “Pursuant to section 18 of the Judiciary Act 1903 (Cth) I state the following case and reserve the following questions for the consideration of the Full Court”. In paragraph 1 of the stated case I think that it is at least arguable that this is also under 76(ii), a matter arising under a law of the Commonwealth, at least as to the construction issues. I would have thought it was a 76(ii) case.

MS WALKER:   Yes, your Honour.

MR HILL:   Sorry, your Honour, I just want to note this morning, the Commonwealth position also would be 75(iii), the Director is a representative of the Commonwealth.

HIS HONOUR:   Yes, then no doubt that could and should go in as well.

MR HILL:   Thank you, your Honour.

HIS HONOUR:   Then the principal focus of attention I think is on the form of the questions, but just before that it may be useful to insert immediately before what are presently the questions reserved something to the effect that the documents annexed to the case stated form part of the case stated, just to put that beyond doubt.  I would have thought that was the intention of all of the parties.

MS WALKER:   Yes, it was, your Honour.

HIS HONOUR:   Then could I take up the form of questions?  I suspect that the introductory phrase “In the light of the above” is probably unnecessary – “the following questions are stated for the consideration of the Full Court:  (1)”.  For the avoidance of doubt in line 4, rather than “as required by that provision” can we say “as required by section 66A of Administration Act”?  There is then no doubt about what we are talking about.

MS WALKER:   Yes.

HIS HONOUR:   Question 2, I wonder whether the “by reason of” clause may not better be dropped?  Yes, I understand why it has been put in, but I suspect that the urge for further precision may itself divert attention and that it becomes a simpler question:  (1) Is section 66A of the Administration Act invalid insofar as it has retrospective effect because it infringes”, et cetera.

MS WALKER:   Yes, we would be content with that, your Honour.

HIS HONOUR:   Then question 3, I would as a general rule prefer the question to be freestanding, that is to say, a question which would not require reference to other parts of the case stated.  That I think presents a difficulty here in identifying the notices.

MS WALKER:   Yes.

HIS HONOUR:   A way around it may be in question 3 to say that “Did the notices issued to the Applicant:  (a)” as referred to or as the notices referred to in paragraph 13, which is the grant letter, I think, “or (b)” paragraph 15, which are the other notices, “from time to time create a duty”?

MS WALKER:   Yes.

HIS HONOUR:   Again, I am not sure that it is useful in the question and here this I leave to the parties for their consideration, but I am not sure that it is useful in the question to do more than tie the notices to those which have been given.  Those which have been given may wear a complexion of section 67 or section 68, or both 67 and 68 according to the way in which the parties choose to argue their cases and it may therefore suffice if we said “Did the notices issued to the Applicant (a) as described in or as recorded in or as identified in paragraph 13; (b) as recorded in paragraph 15, create a duty?”  Then it may be useful to add as a question 4 who should pay the costs of the case stated, simply to get the Full Court to determine the costs of the case stated.  Those are comments on the case stated.  Are there matters that you would wish to raise about it, Ms Walker?

MS WALKER:   Only to say two things.  I understand from my learned friend this morning that there may be some minor amendments that need to be discussed between the parties, not matters of substance.

HIS HONOUR:   Yes.

MS WALKER:   Also just to make clear – I hope this was clear, in fact, from the written submissions that we provided – but that both questions 1 and question 3 are directed at the physical element of engaging in conduct.

HIS HONOUR:   Yes.

MS WALKER:   We thought that was clear between the parties.  I basically wanted to say that to make sure that that was a matter that was – everyone was on the same page about.  Other than those matters, your Honour, I think we certainly take on board, of course, what your Honour has said and produce a revised version of the stated case, and there is no doubt, I think, that can be done in the timetable as proposed in the draft orders, ie, by Friday.  So the only other matter I think, your Honour, is whether the orders that we have proposed are orders that your Honour would think appropriate to make.

HIS HONOUR:   These are the directions.  It would be useful to me if I could have a form of the case stated for initialling by no later than Thursday morning.  Is that ‑ ‑ ‑

MS WALKER:   I do not see any difficulty with that, given, I think, the nature of the changes that both your Honour has suggested and I understand we might be making are very minor.

HIS HONOUR:   Yes.

MS WALKER:   So, your Honour, should we then perhaps change order 1 to reflect a Thursday or ‑ ‑ ‑

HIS HONOUR:   Yes, if that were acceptable to the parties.

MS WALKER:   Yes, I am not speaking for my learned friend, but I think that ought to be ‑ ‑ ‑

HIS HONOUR:   No, and then, I think, leave the other directions as they stand with perhaps the costs of today to be costs in the case stated.  This is not a matter in which there is likely to be any difficulty about what should go into the case stated book, I would have thought, is it?

MS WALKER:   I very much doubt it.  I think it will be the stated case ‑ ‑ ‑

HIS HONOUR:   The case stated.

MS WALKER:   Yes, indeed, your Honour.

HIS HONOUR:   Yes, and the order ‑ ‑ ‑

MS WALKER:   Referring.

HIS HONOUR:   ‑ ‑ ‑referring in.

MS WALKER:   Yes.

HIS HONOUR:   Yes.

MS WALKER:   Is your Honour content with the timetable that has been proposed?

HIS HONOUR:   Well, that would enable it to be ready for fixing in the – we have a sittings commencing on Wednesday, 3 April.  Given the urgency of this matter it is perhaps desirable that it be available to be fixed in that sittings.  That may mean that you should slip backwards each of the dates by two or three days, or something of that order.  I am content if the parties agree on it, but the last filing should, I think, be occurring, given the intervention of Easter, no later than Monday, 25 March.

MS WALKER:   Yes.

HIS HONOUR:   If the parties could agree to do it as early as Friday, 22 March, well and good, but on no account later than 4.00 pm, Monday, 25 March.  I will leave it to the parties to agree upon such timetable as they can, and if when you – subject to anything Mr Hill may say, but if you can settle a timetable and a draft set of minutes and initial them and send them up we can then make them.

MS WALKER:   Yes, we can do that, your Honour.

HIS HONOUR:   Yes.  Mr Hill, is there anything you would wish to add or say?

MR HILL:   Your Honour, there are only two very small things.  Your Honour was making comments on the questions and so this is merely to note, in question 3 we will have to think about the way of identifying the notices, just because the initial grant letter identified in paragraph 13 is also identified in paragraph 15.  That is a matter of no consequence, but if the parties come back with very slightly different words that could be it.  I am sure it is a matter of supreme difference to your Honour.

HIS HONOUR:   I do not know about that.  It will be a matter of great moment to someone, I am sure, but it may be that then ‑ that “Did the notices issued to the applicant as recorded in paragraph 15 or any of them create a duty” may be the way in which to solve the drafting problem.

MR HILL:   I am indebted to your Honour.  The only other matter – and this no doubt is my own fault – this is a criminal matter which is why I had not proposed a question dealing with costs.

HIS HONOUR:   Yes.

MR HILL:   Clearly, my understanding is wrong, that ‑ ‑ ‑

HIS HONOUR:   Well, it may be that there ought to be no order as to costs.

MR HILL:   I see.  That is intended that the Full Court be able to consider that issue?

HIS HONOUR:   It seemed to me that that is a matter that could, perhaps probably should, be played out in the Full Court.

MR HILL:   I understand.

HIS HONOUR:   On the question of validity, it would not seem to me to be axiomatic that no order as to costs might be made.  There is perhaps an issue about that and hence my concern to get it into a Full Court.  If the parties wish to particularly reserve their position by saying I have not got the drafting right, but whether any order for costs should be made, or something, by all means draft it in that fashion.

MR HILL:   As the Court pleases.

HIS HONOUR:   Yes.  Now, if then the parties could submit an agreed set of directions and a revised draft of the special case I can initial that and the wheels of industry can then turn.

MR HILL:   As the Court pleases.

HIS HONOUR:   Thank you.

AT 9.46 AM THE MATTER WAS CONCLUDED