Kuczborski v The State of Queensland

[2014] HCATrans 143

[2014] HCATrans 143

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

Summons for directions

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 23 JUNE 2014, AT 9.30 AM

Copyright in the High Court of Australia

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

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR G.J. DEL VILLAR, for the defendant State.  (instructed by Crown Law (Qld))

HIS HONOUR:   Mr Fleming, I have read the affidavit from your side that was filed on Friday, I think.

MR FLEMING:   Yes, your Honour.  That brings it up‑to‑date, your Honour.  Thank you.

HIS HONOUR:   And where are we?

MR FLEMING:   After half past five on Friday we received two documents from our learned friends.  One was a letter explaining some issues, and the second document was outlining their view of the special case.  I have seen that for the first time this morning.  There are substantial differences between what our learned friends want ventilated and what we want ventilated.

HIS HONOUR:   All right.  Mr Solicitor.

MR DUNNING:   Thank you, your Honour.  May I seek your Honour’s leave, please, to read an affidavit of Felicity Jane Nagorcka, sworn today?

HIS HONOUR:   Mr Fleming?

MR FLEMING:   No, we have not seen it, your Honour.  Thank you, your Honour, we do now.

HIS HONOUR:   You have that leave.

MR DUNNING:   Would your Honour like a working copy?

HIS HONOUR:   I would.  Thank you, Mr Solicitor.  Should I take a moment to read this?

MR DUNNING:   Yes, your Honour.

HIS HONOUR:   Yes, Mr Solicitor.

MR DUNNING:   Thank you, your Honour.  Your Honour, I must stress that when I saw the revised version provided by our learned friends this morning, I did not apprehend there was as big a gulf between us as perhaps Mr Fleming ‑ ‑ ‑

HIS HONOUR:   No, I must say, having looked at this draft, it seems to me that, in a sense, it removes some of the argumentative material and puts some of the questions in a more formally precise way, which is no vice.  I can understand, though, why they might not think it appropriate to have, for example, so far as the special case is concerned, paragraphs 7, 8, 9 and 10 – hard to see there really, material to anyone’s argument.

MR DUNNING:   Your Honour, as to the materiality ‑ ‑ ‑

HIS HONOUR:   Well, no one is coming along to – so far as I understand the arguments that are to be put in the case ‑ that to prove as a fact what is asserted by judgments in Canada or views of the Justice Department of the United States.

MR DUNNING:   No, that is so, your Honour, and it is for that reason that the covering letter invited, in effect, a similar statement that those views were not accepted.  If I could give what I think is the best illustration?  If we come to the test in Lange, which is a constant, or a near constant theme throughout the complaints ‑ ‑ ‑

HIS HONOUR:   And expressed in a way that might be said to be argumentative, better to have it raised as simply, does this satisfy the Lange test, does this satisfy the Kable test?

MR DUNNING:   Yes.

HIS HONOUR:   As you have done.  I mean, I agree that that improves the drafting of the questions.  I am more concerned now with the content of the special case.

MR DUNNING:   I appreciate that, your Honour; that is what I was meaning to address.  In respect of that topic, when it comes to ‑ if we pick Lange, let it be assumed for the purposes of the discussion I am having with your Honour now, that it has held a burden of political discourse, then questions of the appropriateness of that burden will come into play.  Now, that it is enacted to respond to what is perceived to be a serious community problem will bear directly on that question.  We are not asking our friends to admit that that is how they see it, and we would not think that is ultimately necessary to make ‑ ‑ ‑

HIS HONOUR:   You are putting it forward in relation to the second limb of Lange.

MR DUNNING:   Indeed, that if it is said against us, well, it is quite unreasonable ‑ ‑ ‑

HIS HONOUR:   You are not relying on them for the truth of what the United States Justice Department asserts, but rather for the perception on the basis of which the Queensland Parliament has proceeded?

MR DUNNING:   Yes.  I might not put it in precisely those ‑ ‑ ‑

HIS HONOUR:   The other thing that strikes me is that looking at the statement of claim I apprehend that the plaintiffs wish to assert perhaps a right of association independently of the freedom of political communication, I am not sure about that, we can find out whether that is so, that might bear on the framing of the questions.  Can I be frank, gentlemen?  My concern is that there really is not a lot between the parties in terms of the facts or, indeed, the framing of the questions.  Certainly the framing of the questions in the Crown State’s draft is perhaps a bit more precise and a little less conversational than that in the plaintiff’s draft, but there is not a lot between you in substance.

The Court’s principal concern is this is obviously a case for seven Justices and the Court is anxious to hear it in the September sittings in Brisbane.  If it cannot be heard in September the question – there is a difficulty in terms of ensuring that it can be heard by seven Justices, and that might not be able to be done for the balance of this year.  So it really is quite important that we be able to proceed so that it can be heard in September.  For that reason, it seems to me that there are really two options.  One is that I can allow the parties some more time, by which I mean, for example, until two o'clock today to reach agreement on the terms of the stated case and the questions to be referred, or I can, pursuant to section 18 of the Judiciary Act, reserve the questions myself without the agreement of the parties.

I am reluctant to do that for a number of reasons, but in order to ensure that the case does not continue to wallow in what appears to be perhaps unnecessary contention, and wallow it is given that we have now been – this is, I think, the third mention ‑ that if the parties cannot reach agreement, notwithstanding the absence of any serious substantive difference between them in terms of the questions and not a large degree of difference in terms of the facts, then I think I would be disposed to act under section 18.  As I say, I would rather not do that.

Given that Mr Fleming has only seen this material today, at the moment my inclination is to stand the matter down until two o'clock to enable you to have the opportunity to hammer out some agreement on the basis that that would certainly be preferable, and it would be preferable to have an agreed area of fact rather than to simply have questions stated by reference to the statement of claim.  So that is where we stand.  Mr Fleming.

MR FLEMING:   We are content with that, your Honour.  We are more than happy to sit down to see what we can work out.

HIS HONOUR:   Mr Solicitor?

MR DUNNING:   Yes, so are we, we would certainly prefer that we not put your Honour to the trouble of having to deal with it yourself.

HIS HONOUR:   Well, it would certainly be preferable, I think from both sides, in order to have the substantial facts on which the matter should be determined, established to the extent that they are necessary for the litigation of the questions as to the validity of the legislation, so that I am disposed to give the parties one last chance, as it were, to come to agreement on those matters, and also it would be preferable in terms of the autonomy of the parties for them to reach agreement on the questions.  But in terms of the Court’s obligation to deal with this matter the parties have had enough time, or will have had by two o'clock today, enough time to do what they can if they can, and if they cannot, well, the Court will have to take a more active role in managing the matter.

MR FLEMING:   I understand.

HIS HONOUR:   So what I propose to do now is to stand the matter down until 2.00 pm when we will reconvene and hopefully we will be in a position at that stage to state a case with agreed questions.

MR FLEMING:   Thank you, your Honour.

MR DUNNING:   Thank you, your Honour.

HIS HONOUR:   Adjourn the Court please.

AT 9.46 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.03 PM:

HIS HONOUR:   Yes, Mr Solicitor.

MR DUNNING:   Your Honour, the time has been used productively.  Can I pass to your Honour please a document, which I think it would be fair to say the parties are, in substance, agreed to?  Mr Fleming has only seen a hard copy in the last 10 minutes or so.

HIS HONOUR:   Yes.

MR DUNNING:   I trust your Honour might excuse that there remains the odd infelicity and misplaced tense in it, but it is – would it be convenient if I walked your Honour through the changes or would your Honour prefer to read them?

HIS HONOUR:   If you do not mind, I will have a quick look.

MR DUNNING:   Not a problem.  Thank you.

HIS HONOUR:   Please have a seat while I am doing that.

MR DUNNING:   Thank you.

HIS HONOUR:   So, Mr Solicitor, I understand that this is to operate alone without the need to refer to the previous draft.

MR DUNNING:   That is correct, your Honour, yes.

HIS HONOUR:   Mr Fleming, have you had a chance to digest this?

MR FLEMING:   Not digest it, your Honour, but it seems to be consistent with the issues about which we spoke.  The additions – I think my learned friend said to me that in paragraph – the alterations immediately before paragraph 1 – there is something that should go in there, “The plaintiff accepts that the defendant enacted the challenge to the legislation in response to” – something should be inserted in there that my learned friend ‑ ‑ ‑

MR DUNNING:   Yes.....

HIS HONOUR:   I have got “Certain legislative and community perceptions of”.

MR FLEMING:   Thank you, your Honour.  Then we have some preliminary concern about paragraph 14.

HIS HONOUR:   That is 14 in this draft?

MR FLEMING:   In this draft, yes.  The other paragraphs are consistent with discussions, but paragraph 14 seems to be an argument saying, since we have introduced these pieces of legislation (which might or might not be invalid) we have noticed a substantial drop in the number of offences against the person on the Gold Coast.  Without having thought about it too much, we would say that does not seem to be relevant.  We can understand how the learning, or the research, in paragraphs 12 and 13 might be relevant, but not 14.

HIS HONOUR:   Mr Solicitor?

MR DUNNING:   Your Honour, in our respectful submission, it is a matter relevant to the consideration – to the Parliament as to whether to enact this legislation and, ultimately, that if it was enacted and perceived by Parliament to have that response as relevant to the second limb in Lange.

HIS HONOUR:   I suppose the difficulty of having it as a fact in the stated case as opposed to an argument raised by material in the course of argument is really the question as to whether the inference that one would be invited to draw is really accurate, given that the inference is obviously post hoc ergo propter hoc ‑ ‑ ‑

MR DUNNING:   Yes.

HIS HONOUR:   ‑ ‑ ‑ which, of course, is a logical fallacy.  I wonder whether your side would really be disadvantaged if you were left to make these sorts of points in argument rather than asking the other side to agree to what is, essentially, an argumentative proposition of fact.  How can they really be expected to agree, one way or the other, with this?

MR DUNNING:   We appreciate that, your Honour, and we would not – provided we could lead some evidence relevant to the making of the submission we would not be disadvantaged.

HIS HONOUR:   Well, I am not sure about evidence, but perhaps – I am really thinking more in terms of publicly available material that ‑ ‑ ‑

MR DUNNING:   That is effectively what ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ rather than material that comes from one side or the other without having been reviewed and without being something that one could take notice of, having regard to its prominence.

MR DUNNING:   Yes.

HIS HONOUR:   Judicial notice.

MR DUNNING:   I understand that.  Your Honour, crime statistics though will, of their nature, inevitably emanate from the State.

HIS HONOUR:   Yes, but I suppose if they are ‑ ‑ ‑

MR DUNNING:   Of a character that are routinely maintained.

HIS HONOUR:   Yes.

MR DUNNING:   Yes.

HIS HONOUR:   So that their reliability is not a matter of dispute.

MR DUNNING:   Yes.  If we were able to lead evidence of crime statistics over the relevant periods that were of a character that were routinely maintained, then we would have no disadvantage by not including that because we would be in a position to make that submission.

HIS HONOUR:   And Mr Fleming’s side would be in a position to make the argument that ‑ whatever arguments they want to make about the value of that material, but they could also address the argument that – arguments to relevance that perhaps ordinarily the validity of a law is not judged by its success because one has to be able to tell why it is passed rather than with the benefit of hindsight.  But, on the other hand, coupled with the other material on which you rely, it may have some relevance.

MR DUNNING:   Yes.

HIS HONOUR:   Mr Fleming, I am concerned that your side should not be in a position where you are obliged to agree with something which is possibly argumentative, possibly tendentious, but if there are available statistics that could be proved in a way that is – in which matters of which one could take judicial notice are proved in the course of argument, and subject to your arguments about relevance, would you be disadvantaged?

MR FLEMING:   No, we would not in those circumstances, your Honour.

HIS HONOUR:   So on that footing I suppose it might be better to delete paragraph 14 on the current draft.  Well, I am content to state a case in terms of this much amended piece of paper.  What I would propose to do is to initial it and return it to the parties.  If you could have a fair copy made, that will then be the special case that is – it will be agreed upon by the parties and will be referred for consideration to a Full Court.  Can I ask how long do the parties anticipate the case will take to argue, given that there are quite a few questions?

MR FLEMING:   Yes.  I cannot see that there would be much left out of a day, on our argument, but then our learned friend ‑ ‑ ‑

HIS HONOUR:   So you are thinking your argument would take a day to present?

MR FLEMING:   Yes, safe to allow a day – although we might be able to compress some of the arguments because there are recurrent arguments.

HIS HONOUR:   Yes, some things – answers branch into various – some answers to some questions will resolve other ‑ ‑ ‑

MR FLEMING:   Yes, so we would certainly go into an afternoon, your Honour; there would not be too much doubt about that.

HIS HONOUR:   Mr Fleming, I do not have any difficulty with the idea that your argument would take a day.  Mr Solicitor?

MR DUNNING:   Your Honour, we had thought at least three days.  We thought ‑ ‑ ‑

HIS HONOUR:   For the whole thing or just your argument?

MR DUNNING:   No, for the whole thing.

HIS HONOUR:   Yes.

MR DUNNING:   For the whole thing.  We thought the plaintiff’s case is – really should be counted for a day.  There is – true it is, it will be presented efficiently and the answers to some questions will bear relevantly on other questions but, nonetheless, there is a lot of ground to cover.  The defendants really have to allow a similar sort of time.  If Williams is any guide, given we understand there is a reasonable amount of interest from ‑ ‑ ‑

HIS HONOUR:   The other States.

MR DUNNING:   ‑ ‑ ‑ the other States, and possibly the Commonwealth who also have this sort of legislation, it went effectively three and a half days.

HIS HONOUR:   Yes, it did.  Well, we might – I will need to speak to the Chief Justice about just how much time we can allocate, but I think it probably would be prudent to work on the basis of three days.

MR DUNNING:   Yes.

HIS HONOUR:   Very well.  Well, what I will do ‑ ‑ ‑

MR DUNNING:   Your Honour, might I just raise two matters briefly regarding the special case?

HIS HONOUR:   Yes.

MR DUNNING:   The consequence of taking out paragraph 14 would seem to have a knock‑on effect to the introductory words.  In the second line of the underlined ones after 11, “being material to the matters identified in paragraph 14”.

HIS HONOUR:   We will just cross out “being material to the matters identified in paragraph 14”.

MR DUNNING:   And the second matter was within your Honour’s description of a fair reproduction of the initial version, if we see incorrect tenses, matters like ‑ ‑ ‑

HIS HONOUR:   Sure.

MR DUNNING:   ‑ ‑ ‑ if we can agree, matters that do not depart from the substance – thank you.

HIS HONOUR:   Sure.  That is fine, Mr Fleming.

MR FLEMING:   Yes, your Honour.

HIS HONOUR:   I am in the process of initialling the draft.  I have marked the draft “A” and I will order that the special case agreed upon by the parties be referred for consideration by a Full Court, the special case in the form of the draft initialled by me and marked “A” and placed with the papers on the basis that a fair copy will be supplied by the parties, so I will hand that back to you, gentlemen.  I will lend it back to the parties.

I will order as well that the provisions of Part 44 of the Rules – that is in relation to submissions – will apply in relation to the case.  That should cover dates for submissions and so forth.  Are there any other particular orders that the parties seek?

MR DUNNING:   Not on our side, thank you.

MR FLEMING:   No, your Honour.

HIS HONOUR:   Very well.  I imagine the costs of today are costs in the proceedings.  I will order that costs of today be costs in the proceedings.  Can I ask that the parties make a point of preparing a fair copy and getting it back to us as soon as humanly possible?

MR DUNNING:   Of course, your Honour.  Your Honour, may we inquire, it is proposed the week of 1 September to hear the ‑ ‑ ‑

HIS HONOUR:   At the moment the intention is that it should be heard in the first week of the September sittings and at the moment the intention is that if it can be heard in Brisbane it will be heard in Brisbane on the footing that we imagine that that would accord with preferences of the parties, if their preferences could be addressed.

Can I also thank you, gentlemen, for your assistance in expediting the matter.  The Court appreciates it.  Adjourn the Court, please.

AT 2.19 PM THE MATTER WAS ADJOURNED