Kuczborski v The State of Queensland

[2014] HCATrans 151

[2014] HCATrans 151

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B14 of 2014

B e t w e e n -

STEFAN KUCZBORSKI

Plaintiff

and

THE STATE OF QUEENSLAND

Defendant

Directions

HAYNE ACJ

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO BRISBANE

ON TUESDAY, 22 JULY 2014, AT 9.00 AM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC:   If your Honour pleases, I appear for the plaintiff.  (instructed by Irish Bentley Lawyers)

MR P.J. DUNNING, QC:   If your Honour pleases, I appear with my learned friend, MR G.J.D. DEL VILLAR, for the defendant.  (instructed by Crown Law – Brisbane)

HIS HONOUR:   Yes.  Mr Fleming, I have read the submissions that were filed by your side and the State in relation to the directions hearings.  What do you say I should do?

MR FLEMING:   Your Honour, there is substantial agreement.  The only issue that is left that has not been agreed is that relating to the additional items that have been included in respect of the Criminal Code and the Liquor Act.  They all go to the same question and it all revolves around criminal organisation.  It just meant that fresh eyes and the new sweep through picked up some other provisions which are caught by precisely the same argument and it would be our submission that the ‑ ‑ ‑

HIS HONOUR:   Yes.  It may be, Mr Fleming, that I would be assisted by hearing from the Solicitor‑General about this aspect of the matter.  Yes, Mr Solicitor.

MR FLEMING:   Thank you, your Honour.

MR DUNNING:   Thank you, your Honour.  The main difficulty that the State apprehends is a timing one, and we accept that as a matter of principle the issue that is raised is one that does not involve an inquiry into factual matters, so it is simply a matter of being prepared to refocus the defendant’s case on the issues that are now raised and the new issues that until last week we did not have occasion to be considering.  That is the essence of the resistance.  I do not have anything useful to add beyond that and what is in writing, your Honour.

HIS HONOUR:   Yes.  Are these matters best dealt with by consideration to the timetable that is to be followed?

MR DUNNING:   Your Honour, I am not meaning to avoid your question; that is certainly one available solution to the issue, your Honour, yes.

HIS HONOUR:   Yes.  Now, Mr Solicitor, some of us read the newspaper, whether in hard copy or not.  If there were to be any amendment to any of the provisions that are now at issue are you in a position to say anything about when those amendments might be put forward for consideration?

MR DUNNING:   Your Honour, as best I understand it, it is not proposed to amend anything that is the subject of controversy, either – as the plaintiff case is presently framed.

HIS HONOUR:   Very well.

MR DUNNING:   But I know no more in a sense than an avid reader of the newspaper might presently know, but obviously if that changed we would act immediately to notify our friends in the Court.  At this stage, from what I have seen, there is no reason to expect that would be the case.

HIS HONOUR:   The reason I ask perhaps has many aspects, but one aspect is whether it is worthwhile going now to preparation of an amended special case book or whether we simply prepare an amended special case, leaving over preparation of an amended book until we know precisely what is going to be in issue.  It is as brutally practical as that, Mr Solicitor, and no deeper than that, at least for the moment.

MR DUNNING:   Your Honour, perhaps the simplest answer to that is I am not sure there will be any difference between the amended special case and the amended case book – sorry, I should not say that, obviously there will be the directions of the Court, but outside that it was not a weighty document to start off with.  The consensus the parties have arrived at, subject to the Court’s satisfaction, would see those factual issues excised, except paragraph 20 which we did raise with our learned friends, and I gather Mr Fleming is content for paragraph 20 to remain in there.  There are no other documents, so we are in your Honour’s hands.  If it is considered more expedient not to prepare the special case book now we would have no difficulty with that because it is not a major task, but I am not really expecting there to be any changes.

HIS HONOUR:   Given that we are dealing with a special case and the special case is ultimately the parties’ case, not the Court’s, I am minded to take the following steps today, one, to give parties leave to amend the special case ‑ and we will need to just look in a moment at some precise particulars of the way in which the leave should be couched ‑ provide for filing and service of the further amended special case and an amended version of the plaintiff’s written submissions that would, in effect, take account of the amendments to that special case.

I am minded to vacate paragraphs 11 and 12 of the orders made on 27 June which were the orders about the sequence in which written submissions should appear ‑ that, I think, is overtaken largely by events and, in particular, the dropping of claims about freedom of association and the like ‑ and then refix the timetable, as well, I think, as provide for a new time for filing an amended special case book. 

Now, that is the broad framework of what I had in mind dealing with this morning.  Before I come to the detail of those orders I see the different estimates that the parties give of the likely duration of argument.  Is the position, Mr Solicitor, that we know of four States who have presently indicated an intention to intervene?  I think it is four.

MR DUNNING:   Yes, and one Territory.

HIS HONOUR:   That is five.

MR DUNNING:   And, your Honour, at least informally my understanding is the only parties who are unlikely to intervene are the State of Tasmania and the Australian Capital Territory.

HIS HONOUR:   I see.

MR DUNNING:   I am otherwise expecting interventions elsewhere.  And on that point, we have read what our learned friends have said.  They are the moving party.  If they think a day and a half, we think that would be a safer estimate than the one day estimate we gave.

HIS HONOUR:   It seemed to me that it is probably a day and a half, but should be fixed on a footing that it will not exceed two days.

MR DUNNING:   Yes, your Honour.

HIS HONOUR:   If we allow two days for it, in the expectation that argument will occupy about a day and a half, I think we are reasonably comfortable, are we not, Mr Solicitor?

MR DUNNING:   Yes, we would agree with that, your Honour.

HIS HONOUR:   The reason I am especially anxious to fix the timing of argument with a degree of precision is that if, as seems probable, we do this on circuit in Brisbane, it really will affect other cases in the list, other parties, other counsel and we have got to get our timing right otherwise a large number of people are put to a degree of – a considerable degree of inconvenience and expense, but I have said what I have said.  Now, perhaps, Mr Solicitor, if you would be – unless there is something else you want to say, can I take up in the first instance with Mr Fleming the exact form of these orders?  I have got to get them right, and then we will come back and you can have a further opportunity.

MR DUNNING:   Thank you, your Honour.

HIS HONOUR:   Mr Fleming, it seems to me that order 1 would provide leave to the parties to amend the amended special case in two respects – by deleting the present questions and substituting new questions, and by adding some provisions to the schedule to the questions.  So step one is to provide for substitute questions.  That would be done by directing, one, that the parties have leave to amend the amended special case, (a) by deleting the questions and providing in their place the following questions, namely, then set out four questions.  Can I come to the text of those questions?

MR FLEMING:   Yes, your Honour.

HIS HONOUR:   Question 1 seemed to me to be does the plaintiff have standing to seek a declaration that any and which of the provisions referred to in the schedule to these questions other than certain identified provisions is invalid?  Now, it is the content of that exception which I need to be sure of.  It seemed to me, but correct me if I am wrong, that the exception is Criminal Code (Qld) sections 60A, 60B(1) and 60C and Liquor Act 1992 (Qld) sections 173EB to 173ED, is that right?

MR FLEMING:   That is correct, your Honour.

HIS HONOUR:   Now, is that a comprehensive statement of the exception that has to be made to question 1?

MR FLEMING:   Would you excuse me for one moment, your Honour?

HIS HONOUR:   Of course.

MR FLEMING:   To ED, yes.

HIS HONOUR:   Yes.  So from 173EB to 173ED.

MR FLEMING:   That is right, your Honour.

HIS HONOUR:   Yes.  So question 1 reads:  “Does the plaintiff have standing to seek a declaration that any and which of the provisions referred to in the schedule to these questions other than Criminal Code (Qld) sections 60A, 60B(1) and 60C and Liquor Act 1992 (Qld) sections 173EB to 173ED is invalid.” Is that right?

MR FLEMING:   That is so, your Honour.  Yes.

HIS HONOUR:   Question 2 then becomes “Is any and which of the relief which the plaintiff seeks in his amended statement of claim dated” – and I will leave the parties to identify the date of the last version statement of claim – “hypothetical?”  Is that right?

MR FLEMING:   That is correct, your Honour.

HIS HONOUR:   Now, the State suggests that should read “Is the relief sought by the plaintiff, other than” in effect “the provisions of the Code and Liquor Act accepted in question 1 hypothetical?”  Which is that I am doing?  It is the parties’ questions, it is the parties’ case, what is the question?  Do I include the parenthetical “other than”?

MR FLEMING:   We would suggest yes, your Honour, because they are the same provisions as appear in section 1 and there is essential agreement that there is standing and it is not hypothetical in respect of those.

HIS HONOUR:   Very well.  Question 2 will be “Is any and which of the relief which the plaintiff seeks in his amended statement of claim dated” – I leave to the parties to insert the date – “(other than the relief sought in relation to Criminal Code (Qld) sections 60A, 60B(1) and 60C and Liquor Act 1992 (Qld) sections 173EB to 173ED) hypothetical?” Are we agreed on that?

MR FLEMING:   Thank you, your Honour, yes.

HIS HONOUR:   Then question 3 becomes “Is any and which of the provisions in the schedule to these questions invalid on the ground that it infringes the principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 517?” Question 4 becomes “Who should pay the costs of the special case?” Now, does that capture the questions on which your side of the record wants to go forward in the Full Court?

MR FLEMING:   Yes, your Honour.

HIS HONOUR:   Yes.  Then we need, do we not, to vary the schedule to the questions by adding a whole list of provisions which, as you suggested, were identified following this further I think you described it as a sweep through the provisions.

MR FLEMING:   Yes, your Honour.

HIS HONOUR:   I think the added provisions are these:  Criminal Code (Qld), sections 72(2), 72(3), 72(4), 92A(4A), 92A(4B), 92A(5), 320(2), 320(3), 320(4), 340(1A), 340(1B) and 340(3).

MR FLEMING:   That is an accurate list, your Honour.

HIS HONOUR:   Then we add Liquor Act 1992 (Qld) section 173ED, that is echo delta, is that the only one we have got to add in the Liquor Act, I think, but then we have got a couple of stray provisions of the Crime and Corruption Act 2001 (Qld) and the Crime and Corruption Regulation 2003 (Qld). Are the parties agreed on which provisions of that statute and that regulation are in issue?

MR FLEMING:   Yes.  Your Honour, we do not want those in, we want them deleted.

HIS HONOUR:   All right.  You might gather you have been pinned to the wall about the target, Mr Fleming.  I do not want there to be some misunderstanding of the process through which you are being put at the moment.

MR FLEMING:   No, your Honour, though the process has been very comprehensive, I can assure you.

HIS HONOUR:   That would be paragraph 1 of the order, that the parties have leave to amend the amended special case in those two respects, by deleting “the questions” and providing in their place “the following questions”, namely, those we have identified, and (b) by adding to the schedule to the questions the provisions that I have just identified.  Then order 2 would be to require that “On or before 4.00 pm tomorrow, your side file an original and nine copies and serve on each party” and I would add “each Attorney‑General to whom a 78B notice has been given”.  I think that the papers should go not only to those who have announced an intention to intervene but to everyone to whom you gave a 78B notice.  Do you understand?

MR FLEMING:   We understand that, your Honour.

HIS HONOUR:   And the two things that should go would be (a) A copy of the further amended special case, and (b) your side’s written submissions amended so far as is necessary to refer to the special case and questions as amended pursuant to these orders.  Is that clear enough?

MR FLEMING:   Thank you, your Honour, yes.

HIS HONOUR:   Paragraph 3 of the orders would be to vacate paragraphs 11 and 12 of the orders made on 27 June.  There would then be a varied timetable and the timetable I propose is not to be taken by counsel as the opening bid at some auction.  It seems to me that the timetable we need to fix is one which has the following elements.  It is shifting everything back to the Friday previous to that suggested by the State.

So the solicitor will be the one who will be having something to say about it, but the time by which the defendant is to file and serve its written

submissions would be fixed as 4.00 pm, 9 August, the time by which interveners are to file and serve written submissions would be fixed as 4.00 pm, 15 August, the time by which your side, Mr Fleming, the plaintiff, is to file and serve his written submissions in reply would be fixed as 4.00 pm, 22 August, the time by which an indexed and paginated book of agreed authorities would be filed and served is fixed quite markedly earlier than the time hitherto proposed, it would have to be filed and served no later than 12 noon, 27 August 2014.

If it is to be filed in Brisbane, it has got to get to Canberra, it has got to be digitised, it has got to be distributed to chambers.  There are various intermediate steps that will have to take place, so 12 noon, 27 August would be the time by which the book of authorities would have to be on the counter in the Brisbane Registry.  There would then have to be, I think, a time for the filing and service of an amended special case book.  I am in the parties’ hands as to when that is done.  It has to be done, I think, well in time for the defendant in the preparation of its submissions to be able to make reference in its written submissions to the newly paginated indexed special case book.

My ever vigilant associate tells me that 9 August is a Saturday.  I am all in favour of the legal profession running a seven day week, but others may have a different view.  It would be 8 August for the time by which the defendant is to file and serve its written submissions, but we bring back, do we not, the filing and service of the amended special case book to 1 August, 4.00 pm.  That then gives everybody a few days in which to pick up the pagination and incorporate it into their submissions.  Now, do you want to be heard about that timetable, Mr Fleming?

MR FLEMING:   No, your Honour.

HIS HONOUR:   Yes.  Mr Solicitor?

MR DUNNING:   Thank you, your Honour. 

HIS HONOUR:   I have dudded you on the time, Mr Solicitor.

MR DUNNING:   Your Honour, I would not put it in those terms but ‑ ‑ ‑

HIS HONOUR:   I would.

MR DUNNING:   That probably reflects the luxury attended by your position but not mine.  We understand why your Honour has made those changes and I do not wish to be heard beyond that, but we will make those dates work.

HIS HONOUR:   Very well, then ‑ ‑ ‑

MR DUNNING:   Can I raise one other topic, your Honour, while I am on my feet?

HIS HONOUR:   Yes, yes.

MR DUNNING:   As I had understood it, our learned friends have also dropped their challenges to the Corrective Services Act and the Police Powers and Responsibilities Act. 

HIS HONOUR:   So do those need to come out of the ‑ ‑ ‑

MR DUNNING:   Yes, they should be in the list of deletions, as we understand.  I think our learned friends are in agreement with that but I will let them say, but assuming they are, we can – if it is satisfactory to your Honour – incorporate that into the proposed order.

HIS HONOUR:   By all means, but can I emphasise to the parties, and not only to counsel, of course, but to those instructing them, that this order has really got to pin the parties to the present state of the dispute between them.  I understand that if legislative change were to occur or other events were to occur, perhaps the target may have to move yet again, but at least for the moment I want this target identified with absolute precision.

MR DUNNING:   We understand, thank you, your Honour, yes.

HIS HONOUR:   Yes.  Now, do the parties need me to recite the terms of the order again or are those instructing you sufficiently across the form that it is intended to take?

MR DUNNING:   Ms Nagorcka has made careful notes, your Honour, of the proposed order.  I understand our learned friend, Mr Fleming, has one other matter.  We have nothing further, thank you, your Honour.

HIS HONOUR:   Yes, thank you, Mr Solicitor.

MR FLEMING:   Your Honour, the only other matter was that in respect of the facts, we have agreed essentially that the facts would go out.  We can organise that without ‑ ‑ ‑

HIS HONOUR:   I am inclined to leave them in, Mr Fleming.  I am inclined to leave them in simply on the footing that to pull it down to paragraphs 1, 2 and 20 may perhaps leave us wondering what the case is all about.  I think recognising that the parties presently do not intend to refer to

anything except paragraphs 1, 2 and 20, it is better that the case go forward in its current form.

MR FLEMING:   Thank you, your Honour.

HIS HONOUR:   Is there anything else that counsel seek to raise or any point that needs to be made?

MR DUNNING:   Your Honour ‑ ‑ ‑

MR FLEMING:   Nothing further, your Honour.

HIS HONOUR:   Very well.  There will be orders and directions in the terms I have indicated – sorry, Mr Solicitor, yes.

MR DUNNING:   Your Honour, one final thing, the Court rearranged the time of sitting to accommodate another commitment I had today.  I would just like to express my appreciation both to the Court and to our learned friends for accommodating us in that way.

HIS HONOUR:   Indeed, Mr Solicitor, it is important that these things are dealt with.  Very well, as I say, there will be orders and directions in the terms I have indicated and I will adjourn until 12 noon.

AT 9.28 AM THE MATTER WAS ADJOURNED