Levy v State of Victoria

[1996] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M42 of 1995

B e t w e e n -

LAURENCE NATHAN LEVY

Plaintiff

and

THE STATE OF VICTORIA

First Defendant

JOHN THOMAS GATES ROBINSON

Second Defendant

ROBERT BRIAN WILBY

Third Defendant

Directions hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 OCTOBER 1996, AT 10.23 AM

Copyright in the High Court of Australia

MR A.R. CASTAN, QC:   May it please your Honour, I appear with my learned friend, MR G.J. McEWEN, for the plaintiff.  (instructed by Garland Hawthorn Brahe)

MR D. GRAHAM, QC, Solicitor‑General for the State of Victoria:   May it please your Honour, I appear on behalf of the defendants in this application.  (instructed by R.C. Beazley, Victorian Government Solicitor)

MR G. GRIFFITH, QC, Solicitor‑General for the Commonwealth:   If your Honour pleases, I appear with MS N.F. MORRIS, intervening for the Attorney‑General of the Commonwealth.  (instructed by the Australian Government Solicitor)

MR L.S. KATZ, SC:   If your Honour pleases, I appear for the Attorney‑General for New South Wales who, your Honour may recall, is already an intervener in the Levy matter.  (instructed by the Crown Solicitor for New South Wales)

MR D.F. JACKSON, QC,   If your Honour pleases, I appear with my learned friend, MR M.A. DREYFUS, for six parties - “six parties” I say not quite correctly:  Fairfax Publications Pty Limited, David Syme & Co Limited, Illawarra Newspapers Holdings Pty Limited, Newcastle Newspapers Pty Limited, Fairfax Community Newspapers Pty Limited and West Australian Newspapers Limited, they being the publishers of a number of newspapers and both daily and Sunday and suburban newspapers.  We seek leave to intervene in the proceedings.  Your Honour, the respects in which we seek leave to intervene are in relation to the proposal that the Court’s decision in Theophanous and Stephens be reopened and reconsidered.  (instructed by Freehill Hollingdale & Page)

MR SPIGELMAN, QC:   If your Honour pleases, I appear with MR GAGELER, for the Australian Broadbasting Corporation which is a party in the next matter in the directions list but we will also seek leave to intervene on the same basis that Mr Jackson has just referred.  (instructed by J. Walker, Solicitor for the Australian Broadcasting Corporation)

MR J.R. SACKAR, QC:   If the Court pleases, I appear for the Seven Network which is the ultimate holding company of five licensee broadcasters.  I seek leave to intervene in these proceedings on the same grounds as put by Mr Jackson and on the same issue.  (instructed by Clayton Utz)

MR B.R. McCLINTOCK:   If the Court pleases, I appear for Nationwide News Limited and The Herald and Weekly Times Limited, again seeking leave to intervene on the same basis as does Mr Jackson.  (instructed by Arthur Robinson & Hedderwicks together with Gallagher De Reszke)

MR G.C. CORR:   Your Honour, I appear for the Media, Entertainment and Arts Alliance seeking leave to appear either as amicus curiae or as an intervener in this matter.  (instructed by Public Interest Advocacy Centre)

HIS HONOUR:   Mr Castan, I have a suggested draft minutes of directions which evidently comes from you, is that so?

MR CASTAN:   It does, sir.

HIS HONOUR:   Has that been discussed with other parties?

MR CASTAN:   It has been discussed with my learned friend, the Solicitor for Victoria, and he would wish, I think, to address your Honour on it.

HIS HONOUR:   First of all, is it proposed that there should be - does this draft minute contemplate that there would be a separate hearing of the question of reopening, as distinct from the substantive issues that, if we opened, what the result should be?

MR CASTAN:   It does, and it is so framed deliberately to seek to put that that would be the appropriate and proper way in which the application should be dealt with in the circumstances of this case.

HIS HONOUR:   Is that the joint application of both parties?

MR CASTAN:   I would not presume to say that we have reached agreement on that basis, no.

HIS HONOUR:   Well, then, perhaps you ought to tell me why, in support of your submission, that is the course which ought to be followed.

MR CASTAN:   Because, your Honour, it is respectfully submitted that the nature of the argument that would be involved, and the preparation that would be involved if the matter was to be set down for hearing, and submissions were to be put before the Court dealing with the ultimate issue of the correctness or otherwise of the Theophanous and Stephens decisions, to immediately follow on, assuming that leave were granted to reopen it, would be of a totally different order, and it would be a much longer, a much wider and much more extensive set of written submissions, as well as, obviously, a much more extensive hearing.

Now, in our respectful submission, the Court should not put the parties to the process and expense of preparing for a very substantial argument on the underlying issues of - that underlie those cases, in circumstances where it may well be that that is entirely unnecessary to be put.

I put that in our case in particular, your Honour, because, as it transpires in our situation, we are acting pro bono and the plaintiff is in a situation where he has been, so to speak, caught up in this in the sense that he came to the Court on a demurrer but did not raise these issues, and it was scheduled as a one day hearing and presumably would have been a one day, or perhaps a little more than a day’s hearing, and submissions were duly prepared on that basis.  He now finds himself, on a very late application, in circumstances where he is potentially engaged in a much wider exercise, certainly engaged in a wider exercise, being the application to reopen and potentially one that involves a very large issue indeed.

In our respectful submission, a party who is brought to Court on a defendant’s demurrer framed in a particular way, as the demurrer was framed here which did not include any suggestion of a reopening, should not be put to that trouble and expense and, in particular, in circumstances where - and we say it is relevant at least for the consideration of this matter - a situation where he is neither legally aided nor in a position to fund representation and where, in the absence of pro bono assistance, the Court would be left with him appearing in person.  In those circumstances, the Court should confine itself to, in effect, one step at a time.

The other matter we put in support of that is that there is a potential, particularly in circumstances where there are so many parties seeking to intervene and so many different interests, for the application for leave to reopen and reconsider those cases to itself become, if I could put it this way, your Honour, difficult to manage in terms of the Court’s management of the issues.  The issues will tend to be confused or tend to be much argument put on the question of whether or not there should be a reopening that in truth should only be put properly once there has been leave to reopen.  We would respectfully submit it is important for the Court to carefully separate those out and that a much more manageable way of dealing with the matter would be to handle the application to reopen separately.

I have no idea, of course, of the Court’s availability in terms of time and scheduling, but obviously the time that would be required to schedule a hearing would be a much more limited period.  One assumes a day would deal with the reopening issue, but if one was to need to find time to set down the application for reopening and the potential for the full argument involved in the reopening and the reargument of Theophanous and Stephens, that, of course, would involve a much longer period of the Court’s time which would perhaps unnecessarily be set aside.

HIS HONOUR:   Mr Castan, there are two factors which, I think, perhaps you ought to address in support of this view.  One is this, that there is also the matter of Lange v ABC in which a similar question or perhaps even the same question will arise and it may be that in that case there will be a seeking of, not only leave to reopen, but a reargument of substantive issues.  The second thing is that one can readily appreciate that the question of whether there should be reopening or not might, in the view of some Justices, be answered by reference to substantive questions and it may be very difficult for some Justices to answer the question of reopening without considering the relationship between the majority holding in Theophanous and Stephens on the one hand and their view of the constitutional dispensation on the other.

MR CASTAN:   Yes.  In our respectful submission, as to the second matter, if I can just briefly address that, that temptation, in our respectful submission, should be resisted by the Court and by each of the Justices.  We are acutely conscious of, if I can call it that temptation or that inclination to decide the question of reopening by reference to views that may be formed about the substantive issues, but, in our respectful submission, that would be an erroneous approach by the Court to the question of reopening.

HIS HONOUR:   Yes.

MR CASTAN:   The Court is better served by separating out the issues to the extent to which it is relevant on the question of reopening, strictly framed.  That does not inhibit those who need to put some summary view or Justices who need to take into account some perception of the overall significance or relevance of the issues, but the temptation, so to speak, to merge the issues, to merge the question of reopening into the substantive question of the merits, if I may put it that way, in our respectful submission, should be resisted and the Court should not be encouraged by those seeking to appear or by the form of the directions or the way in which the matter is set up into engaging in that process.

With respect to the relevance of the other application that is before the Court, we would simply submit that that is a case in which the importance of the matters I have just put is emphasised to an even greater

extent, whatever might be said by those participating in it, because it is a case in which there is, as we understand it, what seems to be a remarkable suggestion that not only do the principles in Theophanous apply at the federal level and the State level, they also apply at the international level.  They apply to politics anywhere else in the world, in foreign countries. 

Now, what is involved in that case is what seems to us to be a remarkable extension of Theophanous.  Now, it may well be that the view is taken that in that case the Court would want to not grant leave simply because the case itself is such an inappropriate vehicle, granted that it has nothing to do with - it involves statements made that do not bear on Australian politics or do not relate to Australian politics at all.  So that there is a separate reason why that case, all the more, should be carefully considered on the question of leave before the overall issue of Theophanous is raised if the case itself does not truly fall within any, even the broadest view, of what Theophanous might be sought to stand for.  That is how we respond to those two matters.  If your Honour pleases.

HIS HONOUR:   Yes, thank you, Mr Castan.  Mr Solicitor.

MR GRAHAM:   If your Honour pleases.  We would submit there would be an air of unreality surrounding a bare application for leave to reopen Theophanous and Stephens shorn of any opportunity to submit reasons why the minority judgments in those cases were correct and should be preferred.  We would submit that the two matters, namely, whether there should be leave and the question of the correctness of those decisions, are intimately linked and the Court would not realistically be able to segregate those issues and deal with them separately.  Certainly, echoing something your Honour the Chief Justice just said, it would be difficult for some Justices, in our respectful submission, to take that course.

We would submit that at this directions hearing a course of procedure should not be formulated which would deny a proper opportunity to address all the issues which the application for leave inevitably raises.  So we would submit that there ought to be a combined hearing, if the Full Court so determines, of the leave application and the question of the correctness of the decisions themselves.

HIS HONOUR:   Yes.

MR GRAHAM:   I should add one thing, your Honour.  I have been asked to say this by the learned Solicitor-General for South Australia.  He has indicated and asked me to tell your Honour that South Australia would not seek to intervene on the question of whether leave to reargue should be

given, but would seek to address argument to the Court if leave were granted.  That would sit comfortably with my learned friend MrCastan’s proposed course of procedure, but it would not sit comfortably with that which we propose.  If the Court pleases.  I should add, we do not support minute No 4 in the draft minutes that were provided to your Honour this morning.

HIS HONOUR:   Yes, thank you, Mr Solicitor.  I will next hear from the parties who are interveners as of right.  Mr Solicitor for the Commonwealth.

MR GRIFFITH:   Your Honours, if there is essentially one issue in each of these cases, Levy and in Lange, we would have thought the convenient course would be to hear the cases together and if the real issue is Theophanous and Stephens, your Honour, we would have thought that this would be a case for one hit, that in essense it seems to us the argument is whether they were wrongly decided and it is difficult, a point of artificiality, in our view your Honour, to limit then the argument to the usual issues of whether leave should be granted.  It is quite different from the excise situation, in our opinion.

HIS HONOUR:   Are you in a position to tell me what attitude the Commonwealth will take?

MR GRIFFITH:   Your Honour, we would support reopening and overruling.

HIS HONOUR:   Yes, thank you.  Mr Katz.

MR KATZ:   Your Honour, will recall that my client intervened in the interests of the defendant in the proceedings as they were originally framed.  My client, yet, has not formed a final view as to which one of the parties he would support on the application being made by the Solicitor‑General for Victoria.  So I am not really able to assist your Honour on the questions which have just been ventilated.

HIS HONOUR:    You are not able to?

MR KATZ:   I am not able to.

HIS HONOUR:   Yes. very well, Mr Katz.

MR KATZ:   If your Honour pleases.

HIS HONOUR:   I do not think that at this stage I should assume to give directions in this matter on the footing that the parties who are seeking leave to intervene, or to appear as amicus, are involved in the litigation.  Their applications will necessarily be matters for consideration by the Full Bench when it sits.  In relation to the question that has been discussed, however, the appropriate course, it seems to me, is for the matter to be listed so that the parties can put their submissions first, as to whether Theophanous and Stephens should be reconsidered and, secondly, dependent upon the order which the Full Court might then make, or the course which the Full Court might then adopt, to proceed to consider the substantive issues.  In other words, the matter will be listed so that the expectation will be that the arguments will be prepared for the consideration of the Court on all aspects of the matter.

That being so, it would appear that the case cannot be listed, having regard to the present commitments of the Court for the matters pending before it, earlier than the first sittings of the Court appointed to commence next year, that is, on February 3.  The question then is what course should be adopted in relation to the preparation of the matters for argument, and the order which should be adopted in relation to the preparation of written submissions.  Mr Castan, in the light of what I have said, what submissions would you have to make about that, in the light of your draft minutes?

MR CASTAN:   I would submit that the minutes should be adapted so as to encompass the issues in the way that your Honour has indicated that your Honour will direct, but that an order should be made for outline of submissions along the lines suggested in the draft minutes but going to encompassing both issues given that your Honour has indicated that the matter may, depending on the response to the application to reopen, go on to consider what we might call a substantive question.  So we would respectfully submit that the first defendant, the State of Victoria, would provide an outline of submissions with appropriate dates.  I must confess I have not attempted to work out a schedule of timing.

HIS HONOUR:   I think it can be devised without much difficulty, I think.

MR CASTAN:   And that we would respond.  I think that is all I would seek to put, your Honour.

HIS HONOUR:   I think that your draft minute No 4 in relation to costs is something which is not appropriate for a directions hearing.  It is something which would necessarily await the order of the Full Court.

MR CASTAN:   We would be content with that in the circumstances, your Honour.  I raised it because of the rather special way in which this matter was raised in the context of the - the way the proceedings had come to the Court.  A demurrer had been filed a year or so before the hearing.

HIS HONOUR:   Yes.  Mr Castan, I should make it clear that I am not suggesting that the course that the Full Court will adopt will be to give a ruling on the question of reopening prior to hearing any argument on the merits.  It may be that the question of reopening and to merits will be reserved generally, but that will be a matter for the Full Court to determine in the course of the argument.

MR CASTAN:   Yes, but I take it from what your Honour said that parties would need to come along upon the basis that one possibility at least would be that they would be called on to argue the whole of the substance, assuming that leave were granted.  So that we would be concerned to ensure that the submissions of our learned friend and our submissions in response encompassed the totality of all the potential issues that might be canvassed at the hearing.

HIS HONOUR:   And as the Solicitor indicated, it may be that the substance will be canvassed as a ground for the reopening.

MR CASTAN:   Yes, we understand that.

HIS HONOUR:   Obviously the totality of the issues that can arise ought to be addressed by the parties who are preparing written submissions.

MR CASTAN:   Yes, we have understood that, your Honour.

HIS HONOUR:   Mr Solicitor.

MR GRAHAM:   Your Honour, we are content that we should put our written submissions in first.  That seems to be the logical order of things.  There is one other matter which I would just raise at this stage, and that is the question of whether some linkage needs to be established between the Levy Case and the Lange Case in terms of hearing; whether there would be hearings one after the other or perhaps even a combined hearing, but I just mention that to your Honour as a matter that ‑ ‑ ‑

HIS HONOUR:   Yes.  Subject to anything that the parties in the Lange Case might say, I would have thought that they should be heard sequentially and that that matter could be listed immediately after the Levy matter.

MR GRAHAM:   Yes, if the Court pleases.  Would your Honour excuse me one moment?  There is just one other matter I would seek to discuss.

HIS HONOUR:   Yes.

MR GRAHAM:   Your Honour, there is just one other matter.  Your Honour mentioned the possibility of the matter being listed in February.  Can I indicate that for both my learned friend and myself there would be significant advantages, and for our clients, if the matter were listed in the March sittings rather than February, so far as that is within the flexibility that is available.  There are difficulties for both of us in February.

HIS HONOUR:   I see.  That is in relation to the whole of the February sittings?

MR CASTAN:   Assuming that that is when the matter will be next argued.

HIS HONOUR:   That would be a delay until 3 March, it would seem.

MR CASTAN:   Yes.  Given the necessity of going to 1997, the extra month, in our respectful submission, would not significantly add to the ‑ ‑ ‑

HIS HONOUR:   There is, however, this problem, Mr Castan, and that is that the March sittings of the Court for next year are limited to 3 to 7 March in Canberra and then, assuming that there were sufficient work to justify the Court going to Hobart, the Hobart sittings in the following week; in other words, it is a one week sittings.

MR CASTAN:   Yes.  I must say that ‑ ‑ ‑

HIS HONOUR:   I think that what you have said can be borne in mind and I will have to hear what the parties have to say in the Lange matter before coming to any firm conclusion as to what the appropriate course would be.

MR CASTAN:   If your Honour please.  I was endeavouring to cast my mind back to the Theophanous and Stephens hearing to recollect how many days it was.  I think three.  Yes, it occupied a total of three days.

HIS HONOUR:   Yes.

MR CASTAN:   One would have thought that it would not take more than that or no more than ‑ ‑ ‑

HIS HONOUR:   The majority of the Court having had some familiarity with the problem, it may be that it will not be necessary to reiterate that which is already familiar.

MR CASTAN:   Yes, it was argued as new territory.  If your Honour please.

HIS HONOUR:   Thank you.  Mr Solicitor.

MR GRIFFITH:   Your Honour, may I mention the matter of interveners’ submissions.

HIS HONOUR:   I will be dealing with those in due course, Mr Solicitor.

MR GRIFFITH:   I was just going to - for those intervening as of right, Your Honour, I was just going to flag, if I may, that we would, in effect, be there as a supporter rather than a principal and we would like to suggest, your Honour, that if our submissions, although in support of Victoria, could be filed, say, 14 days later, they would be the shorter rather than in‑principle submissions, but pardon me for intervening at this stage to mention that, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Solicitor for Victoria, at what time do you think your submissions could be available?

MR GRAHAM:   The end of November, your Honour, that is two months.

HIS HONOUR:   It would be desirable obviously to have all submissions in before the commencement of the Court vacation.

MR GRAHAM:   In that case, your Honour, I had better come back a little in time and suggest that we have until perhaps the middle of November and those responding would have up until Christmas.

HIS HONOUR:   Shall we say 1 November?  That is a Friday.

MR GRAHAM:   I am in your Honour’s hands.

HIS HONOUR:   I am going to use that as a basic date from which other dates might be calculated, but I propose first to hear from those who are seeking leave to intervene.

MR GRAHAM:   If your Honour pleases.

HIS HONOUR:   Mr Jackson.

MR JACKSON:   Your Honours, a couple of matters.  We would seek to mention first one thing and that is that at the hearing of the proceedings next year one of the matters which we would, I should think, seek to agitate in support of the proposition that the Court should not enter into a reconsideration of Theophanous and Stephens would be that those two cases are not, by reason of their nature, suitable vehicles for the Court to do so in any event.  Your Honours, may I perhaps simply mention that at this point.

HIS HONOUR:   That is, the present case of Levy?

MR JACKSON:   The present case, your Honour, and also the other case which is listed before your Honour this morning, Lange.

HIS HONOUR:   Yes.

MR JACKSON:   Your Honour, I do not seek to develop that for the moment, but may I simply flag that; that is one thing.  The second thing is, your Honour, so far as submissions on behalf of the interveners are concerned, may we suggest, with respect, that an appropriate time would be shortly after the, well in the particular case, your Honour, we have really no objection to doing them at the same time as Mr Castan’s side.

HIS HONOUR:   Yes, thank you.  Now, Mr Jackson, it seems to me that there are four issues which interveners will need to consider:  the first is the question of the interest of a party which might support an application to intervene and, indeed, perhaps consideration of the jurisdiction of the Court to allow a party to intervene and, alternatively, the basis on which a party might seek leave to appear amicus.  Iin the Kruger Case there were some references made to the two bases which are distinct in relation to intervention and amicus and in relation to amicus a uniqueness of argument which justifies giving the party that status, where the parties before the Court are unlikely to assist the Court by reference to the particular argument that the amicus seeks to adduce.  So that is one aspect that the parties might need to consider. 

The second, of course, is the question of whether or not these decisions of Theophanous and Stephens should be reopened and involved in that would no doubt be the question of whether the Levy or perhaps the Lange Cases are suitable vehicles for that purpose.  The third are the questions of the constitutional concepts that may be involved if a party seeks to canvass the merits of the decisions in Theophanous and Stephens and involved in that may be a consideration of the need for any development of the constitutional principles, if Theophanous and Stephens are adhered to, but it might be thought that there should be some development of one or other of the concepts that are referred to in the majority judgments in those cases.

Then finally, and this particularly might arise if Theophanous and Stephens were not adhered to, the question of whether the common law as referred to in some of the judgments in those cases should be further developed and if so, in what manner.

MR JACKSON:   Your Honour, may I say two things in response to what your Honour has said?  The first is one that your Honour did not mention, and it is a question which may or may not arise in the end, and that is the question whether if Theophanous and Stephens were overruled, the overruling might be prospective ‑ ‑ ‑

HIS HONOUR:   Yes.

MR JACKSON:     ‑ ‑ ‑ because your Honour will have seen from the material that we have filed that there is a number of cases.

HIS HONOUR:   Yes.

MR JACKSON:   Your Honour, the second thing is this:  in relation, I think, to the second point that your Honour mentioned; the question of, to put it shortly, duplication - in the case of duplication of argument when the question of amicus curiae is considered -your Honour, one matter we would seek to flag in, and if I could do so in that regard, is that one does have a situation in relation to matters of this kind that is not quite mirrored in the circumstances where no one is able to intervene as of right.  What I mean by that, your Honour, is that if one has a situation where the Attorneys‑General, the polities and, in a sense in many respects, in the particular context perhaps the politicians, but the polities are able to be represented before the Court as of right and are able to present, in effect, a mass of argument in support of it, then, if there is a discretion to allow people to appear as interveners or amicus curiae then it may be that it is appropriate in cases of that kind to allow argument to be advanced by more than one person or supported by more than one person in that capacity because, your Honour, and with suspect, I have said this on several occasions before, the numbers of persons does have some potential effect in relation to the hearing of matters.  I do not know that your Honour will agree with that.

HIS HONOUR:   I do not propose to canvass that issue at the moment, Mr Jackson, but no doubt you would be familiar with the view that was expressed many years ago by Sir Owen Dixon that the Court must be extraordinarily cautious about admitting parties to intervene and, no doubt, also in relation to admitting them to be amici.

MR JACKSON:   Indeed, your Honour.  At the time when Sir Owen was speaking, the provision of the Judiciary Act that allowed intervention as a right did not exist, of course.

HIS HONOUR:   That is right, in relation to the polities.

MR JACKSON:   Yes.

HIS HONOUR:   But that is, after all, a dispensation which the Parliament has seen fit to make.

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   However, I understand the point that you are making and no doubt you will make it before the Full Court in due course.

MR JACKSON:   I expect so, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Spigelman?

MR SPIGELMAN:   Your Honour, this application on our part is, of course, precautionary because we are a party to the other matters.

HIS HONOUR:   Yes.

MR SPIGELMAN:   If the matters are to proceed together then we would have no different view in terms of intervention and we have no views on the timetable in terms of timing because the timetable is likely to be set down for the other matter upon the assumption they proceed together, will fix our position.

HIS HONOUR:   Yes.  Have you anything to say about the substantive issues to be addressed by those who are seeking leave to intervene?

MR SPIGELMAN:   We agree that all the four issues that your Honour referred to arise, and the fifth matter that Mr Jackson made reference to.

HIS HONOUR:   Thank you.  Mr Sackar.

MR SACKAR:   Your Honour, as to procedure, we do not wish to add anything to what has been said.  We agree that those four issues are appropriately dealt with at the next hearing ‑ ‑ ‑

HIS HONOUR:   And the fifth issue raised by Mr Jackson?

MR SACKAR:   Yes.

HIS HONOUR:   Yes.

MR SACKAR:   Your Honour, the only matter that I would add is this, that your Honour may have observed that we have filed a motion in this matter, but no evidence as yet.

HIS HONOUR:   Yes.

MR SACKAR:   We intend to do so along the same lines as that already filed by Fairfax and, at an appropriate stage, your Honour, we would suggest that we do so within 14 days of today.

HIS HONOUR:   Yes.  I was going to mention the fact that there are some notices of motion unsupported by affidavits, but I was then going to suggest that it would be desirable for those who are seeking leave to intervene, or to appear amici, to prepare, as it were, a written submission and, to the extent necessary, verify it, in relation to the aspects of interest.

MR SACKAR:   Yes.

HIS HONOUR:   It would be desirable, obviously, to have a single document from each of the parties so that the Court would be in a position to compare the respective interests of the parties and the respective arguments that are being advanced.

MR SACKAR:   Your Honour, we could certainly file the evidence within 14 days.  We may need a little longer to do our submissions to make it a comprehensive document.

HIS HONOUR:   Yes.  It would be desirable to have something on the record by way of affidavit, which establishes that which is said to be the interest justifying intervention.

MR SACKAR:   Yes.  And, your Honour, although out of order, we have not yet filed a motion in the Lange matter, nor evidence obviously, but it would be our intention, in due course, to do that.

HIS HONOUR:   Yes.  Just by way of repetition, I take it?

MR SACKAR:   Yes.

HIS HONOUR:   Yes.  Mr McClintock.

MR McCLINTOCK:   Thank you, your Honour.  We accept your Honour’s four points, and Mr Jackson’s additional point.  We also, like Mr Sackar, wish to file evidence.  We would require a little longer than Mr Sackar indicated, which was 14 days.  We would require 28 days, if possible, your Honour, to file the evidence.  We accept what your Honour put to Mr Sackar about filing written submissions incorporating the arguments in relation to the evidence as well.

HIS HONOUR:   Yes.  Why would you need 28 days to establish your interest, Mr McClintock?

MR McCLINTOCK:   It is not merely to establish the interest, your Honour.  It goes further and would deal with issues arising on the reopening and we want to demonstrate to the Court the circumstances in which the two cases in question, Theophanous and Stephens, have been applied and relied upon in the course of the conduct of my client’s business in publication of newspapers.  As I understand it, that is the nature of the evidence Mr Jackson has already put on.

HIS HONOUR:   Before you leave the rostrum I will ask the Solicitor for Victoria if that 28 days were allowed to Mr McClintock’s client, would that be occasioning any difficulty in relation to your meeting the 1 November deadline?

MR GRAHAM:   It is difficult to predict, your Honour, because it seems unlikely that we will be able to controvert the evidence of an increase in defamatory publications and reliance on Theophanous if that is what the evidence is meant to show.

HIS HONOUR:   Yes.

MR GRAHAM:   I do not feel that we will be embarrassed. 

MR McCLINTOCK:   Rather an enhancement of freedom of speech, your Honour.

HIS HONOUR:   Yes, well, contrary views are well established.

MR McCLINTOCK:   Indeed, your Honour.  Thank you, your Honour.

HIS HONOUR:   Mr Corr?

MR CORR:   We would support what has gone before your Honour and would have no further submissions as to the procedure to be followed.

HIS HONOUR:   Yes.  Will your primary application be for leave to intervene or to appear as amicus?

MR CORR:   I think that we can demonstrate that we do, in fact, have an interest which would be sufficient for intervention, but if that is not the case we would be seeking leave to appear as amicus, your Honour.

HIS HONOUR:   Yes.

MR CORR:   I think the intervention would be more appropriate to be the first, even though that is not the way it is stated in the notice of motion.

HIS HONOUR:   Yes, thank you.  Now, do any of the parties or any of those intervening as of right have any further submissions to make in relation to the issues that have been discussed with the parties seeking leave to intervene.  Mr Solicitor for the Commonwealth?

MR GRIFFITH:   On the first issue raised by your Honour on the interests of the parties to intervene and the jurisdiction to allow interveners, your Honour, we would like an opportunity to respond to those parts of their submissions because that is a matter of general importance to the Commonwealth.

HIS HONOUR:   Yes.

MR GRIFFITH:   So we would seek a supplementary time to deal with that as a separate issue in our written submissions.

HIS HONOUR:   Yes, thank you.

MR GRAHAM:   We would make the same observation in relation to the applications for leave to intervene; we would seek an opportunity to respond to those applications.  Our present view is that they would be opposed.

HIS HONOUR:   Yes.

MR GRAHAM:   That perhaps could be a part of our submission in reply, assuming that there will be an opportunity for submissions in reply before Christmas.

HIS HONOUR:   We will see how the days work out, Mr Solicitor.  Now, if we start off with the affidavits in support of the notices of motion.  I think, perhaps, if we make it the 29 October for you, Mr McClintock, that, at least gives the Solicitor for Victoria a few days to take on board whatever you might have to submit.  So, 29 October will be the date limited for the filing of affidavits in support of any application for leave to intervene or to appear amicus, and that will apply not only to you, Mr McClintock, but, I think, Mr Sackar may as well have the same benefit.  The 1 November will be the date for the filing and exchange of the submissions on the part of the first defendant in the proceedings.  If we take 14 days after that, that will take us to the 15 November.  Would that be a suitable date for you, Mr Castan?

MR CASTAN:   Could I seek a longer indulgence, your Honour? 

HIS HONOUR:   That is two weeks.

MR CASTAN:   That is pretty tight given the scope that has now been opened up.  We would ask for four weeks.

HIS HONOUR:   I think perhaps three, Mr Castan, to be on the safe side.

MR CASTAN:   If your Honour please.

HIS HONOUR:   22 November for the plaintiff, and for those parties or persons seeking to support the maintenance of Theophanous and Stephens Cases.  So that will cover, I gather, all of those who are seeking leave to intervene.  Then a reply after that - 14 days, Mr Solicitor?

MR GRAHAM:   If your Honour pleases.

HIS HONOUR:   That will make it 6 December for reply by you, Mr Solicitor, and replies by the Commonwealth in relation to any question that they wish to raise on the question of the intervention.  I should indicate that 1 November appears to be the appropriate date also for submissions - you wanted to have a little later, did you not, Mr Solicitor - 8 November?

MR GRIFFITH:   A little longer we would be ‑ ‑ ‑

HIS HONOUR:   Perhaps if we make it - we put them all back one week after 1 November, which will please Mr Castan, perhaps, as well.  That is, if we make yours, Mr Solicitor for the Commonwealth, on 15 November; yours, Mr Castan, on then 29 November; and the replies after that, on 13 December.

MR CASTAN:   If your Honour pleases.

HIS HONOUR:   And the matter then will be listed on a date in either February or March, which I will advise after I hear whatever is said in the Lange Case.

MR CASTAN:   If the Court pleases.

HIS HONOUR:   Now, looking at your draft minutes, Mr Castan, is there anything further that needs to be dealt with?

MR CASTAN:   Other than reserving costs, I think not, your Honour.

HIS HONOUR:   Yes, costs will be reserved.  I think it would be desirable, Mr Solicitor, if you could prepare, in the light of that intimation, draft minutes of order which I could initial and the order could be settled accordingly.

MR GRAHAM:   We will try to have that to your Honour’s chambers tomorrow.

HIS HONOUR:   Yes, thank you.

MR GRAHAM:   It occurs to us - is your Honour sitting in chambers at the moment?

HIS HONOUR:   Yes.

MR GRAHAM:   Perhaps there should be a certificate for counsel.  I think it is still required.

HIS HONOUR:   If it is necessary, counsel will be certified for.

MR GRAHAM:   If your Honour pleases.

HIS HONOUR:   Are there any other matters that are necessary to be discussed in relation to the Levy matter?  In that case, call the next matter for directions.

AT 11.06 AM THE MATTER WAS ADJOURNED