Kuczborski v The State of Queensland

[2014] HCATrans 97

[2014] HCATrans 097

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, 12 MAY 2014, AT 9.29 AM

Copyright in the High Court of Australia

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

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   If your Honour pleases, I appear for the respondent defendant, with my learned friend, MR G.J.D. DEL VILLAR.  (instructed by Crown Law(Qld))

HIS HONOUR:   Mr Fleming.

MR FLEMING:   Yes, thank you, your Honour.  There was filed on ‑ ‑ ‑

HIS HONOUR:   I have read the summons filed on 22 April.

MR FLEMING:   Thank you, your Honour.

HIS HONOUR:   ‑ ‑ ‑ the amended statement of claim, your submissions for directions and I have read submissions filed on 6 May by your side, Mr Dunning.

MR DUNNING:   Thank you, your Honour.

MR FLEMING:   Your Honour, our learned friends raise an issue of standing.  We are uncertain as to quite how to deal with that because it appears traditionally ‑ for example, Croome, McBain, Williams ‑ that issue has been determined as a separate issue but by a substantial Bench, five or more, in each of those cases.  So if that is an issue then we would ask that we give some consideration to that because there are ways it can be overcome.

HIS HONOUR:   Well, perhaps the best thing to do is to hear from Mr Dunning as to what he wants to do about the issue that he has raised.

MR FLEMING:   Thank you, your Honour.

HIS HONOUR:   Mr Solicitor.

MR DUNNING:   Thank you, your Honour.  Your Honour, we recognise that there would be circumstances in which a case could be made out, apt to be considered by the Court, so what we have endeavoured to do is set out those issues that were apparent to us as substantive standing issues that the plaintiff really needed to address and really invited the plaintiff to address them.  What Mr Fleming says is right, but it seems undesirable in terms of the deployment of the Court’s time and of the parties’ time to take to the Court a dispute about these issues when they may very well be able to be remedied, but we should try that process first, in our respectful submission.

So what we would really have in mind is we have identified in correspondence to our learned friends and, more particularly, in the submissions to which your Honour has just referred, those issues of standing that we think are problematic, and would be problematic, for the Court ever to be able to dispose of the issues that are raised and we would really invite our learned friends to respond to that.  Now, it may be to contract the claim they make, it may be to add additional plaintiffs, it may be they write back to us and say, look, your views on standing are misconceived and we do have standing and here is why, but we would think that process would be an efficient one from everybody’s point of view. 

I realise that does not progress the matter much for the purpose of today but we would really envisage our learned friends respond to us along the lines of the alternatives I have just outlined and the parties can then make an informed decision as to whether they ask for a court to be convened to deal with the standing issues, whether we can resolve the standing issues, whether it seems a case that would need to be remitted to some extent to have questions of fact determined, but really we see this as something of a threshold issue and until there is some clarity around it, it is difficult to progress the rest of the case.

HIS HONOUR:   Mr Fleming.

MR DUNNING:   Thank you, your Honour.

MR FLEMING:   Thank you, your Honour.  Your Honour, we do not disagree with what our learned friend has said about the way forward.  We can respond to them, and could I take one step back?  There were two significant amending Acts and there is the VLAD Act, the Vicious Lawless Association Disestablishment Act.  It stands alone.  The first proposition that our learned friends have raised relates to the VLAD Act, so called now.  That will probably give rise to the most argument.  We can respond to our learned friends promptly about that and if there remains an issue between us there are other ways forward, for example, as my learned friend said, joining another plaintiff who has, in fact, been charged with one of the 50 offences which then bring into operation the VLAD Act.  That may be the best way forward, but if we can have some little time – and I emphasise little time – to sort this out it may well be a way forward.

HIS HONOUR:   Well, I am certainly content to let the parties do what they can to resolve things so that we have a case that can go to the Full Court.  In terms of time, would it be convenient if we were to simply adjourn this matter for a further directions hearing on Monday, 2 June on the footing that what needs to be done between the parties can be done by then?

MR FLEMING:   Yes, your Honour, subject to – if I may just check my diary for 2 June, but I am sure that we can make other arrangements if ‑ ‑ ‑

HIS HONOUR:   Will that be enough time to take such steps, including possibly some sort of discussion with the other side about ‑ ‑ ‑

MR FLEMING:   Yes, your Honour, that will be enough time.

HIS HONOUR:   Mr Solicitor?

MR DUNNING:   Yes, it will be, your Honour.

HIS HONOUR:   Very well then, what I propose to do is to simply adjourn the summons until 9.30 am on 2 June and costs reserved.

MR DUNNING:   Thank you, your Honour.

MR FLEMING:   Thank you, your Honour.

HIS HONOUR:   Thank you, gentlemen.  Those will be the orders.  Adjourn the Court, please.

AT 9.36 AM THE MATTER WAS ADJOURNED