Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

[2019] HCATrans 39

[2019] HCATrans 039

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B43 of 2018

B e t w e e n -

DANIEL ALEXANDER LOVE

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Brisbane   No B64 of 2018

B e t w e e n -

BRENDAN CRAIG THOMS

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON TUESDAY, 5 MARCH 2019, AT 10.02 AM

Copyright in the High Court of Australia

____________________

MR S.J. KEIM, SC:   Your Honour, I appear for the plaintiffs in each matter with my learned friends, MS K.E. SLACK and MR A.J. HARTNETT.  (instructed by Maurice Blackburn Lawyers)

MR N.M. WOOD:   Your Honour, I appear with MS J.D. WATSON for the defendant in both matters.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Keim.

MR KEIM:   Your Honour, the special case in the matter of Thoms was eventually agreed and filed last Friday.

HIS HONOUR:   I have seen that, yes, thank you.

MR KEIM:   Your Honour may have noticed that it is less document heavy than the first one but certainly the plaintiffs are satisfied with regard to the relevant facts being included.

HIS HONOUR:   Yes.

MR KEIM:   That was a question your Honour asked on the last occasion, so that is correct – that is fine from our point of view.  The parties have discussed suitable directions.  If it were suitable for the Court firstly, of course, to refer it for consideration by the Full Court, but also to set the matter down in June in the June sittings ‑ ‑ ‑

HIS HONOUR:   I do not want to interrupt you, but I do intend to refer it for consideration to the Full Court.  My preference at the moment, and again it is subject to a number of matters, but if possible it would be ideal if it could be programmed towards the May sittings.

MR KEIM:   Yes.

HIS HONOUR:   I note that you have – and the Commonwealth – helpfully provided competing proposals so that it could be done before the May sittings.  I would expect that it probably could, given that the catch‑up period for the Thoms matter should have given the parties a reasonable amount of time to consider the common underlying issues of both matters.

MR KEIM:   Yes.  I understand that, your Honour, and I do acknowledge that in seeking a date as late as 11 April we are seeking an indulgence, to some extent, from what normally might be the orders.  We would just simply say that it is an important matter.  It affects people other than the two plaintiffs in this matter in most probability and so we are keen to make sure that we give the Court the appropriate assistance.

HIS HONOUR:   What is your estimate of time for the two matters, if they are heard concurrently?

MR KEIM:   I think that they may exceed a day, but would comfortably be heard within two days.

HIS HONOUR:   Yes, all right.

MR KEIM:   So that is why we are seeking until 11 April rather than our learned friend’s 29 March in which to file the submissions.

HIS HONOUR:   11 April, though, does take us – first of all it takes the plaintiffs’ reply very, very close to the time at which the joint book of authorities needs to be filed and also takes the filing of the reply very close to the May sittings.

MR KEIM:   Yes, your Honour.

HIS HONOUR:   Is there any reason why the timetable from the plaintiffs’ point of view could not be abbreviated slightly to require, working backwards, the filing of replies on 29 April rather than 2 May, then the defendant’s responses on 23 April and then the plaintiffs’ initial submissions on 8 April?  With a bit of work over the weekend it should not really make much difference.

MR KEIM:   Yes, that would be acceptable to the plaintiffs, your Honour.

HIS HONOUR:   All right.  Anything else?

MR KEIM:   I know also, and no doubt Mr Wood will address your Honour with regard to this, we were to some extent squeezing the defendant in terms of the response as well.  Hopefully those three extra days will be of some assistance to the defendant as well.

HIS HONOUR:   Yes.

MR KEIM:   Your Honour, we had nothing further to say with regard to that.

HIS HONOUR:   Thank you, Mr Keim.  Mr Wood, is there anything you want to say about those proposed directions from the Commonwealth’s point of view – I had in mind directions in both matters with obviously the same dates.  I am not at the moment persuaded that there is any need to extend the page length from 20 to 25 pages, but subject to that, is there anything you want to add?

MR WOOD:   Only, your Honour, this, that as you will have seen, the Commonwealth’s preference is for a May hearing because of the detention of Mr Thoms.

HIS HONOUR:   Yes.

MR WOOD:   But with respect to a May hearing and the dates that your Honour just mentioned for the filing of submissions, the difficulty that we do face is the very limited availability of the Solicitor‑General who it is proposed would appear for the Commonwealth in the period from 8 to 26 April and, mindful of that, we had proposed in our draft order that the plaintiffs would file their submissions on 29 March which would give the Solicitor‑General a clear week to be involved and then the defendant’s submissions, on our proposed timetabling, would be filed on 12 April, whereas I think I heard your Honour suggest an alternative timetable whereby the plaintiff would file on 8 April and the defendant on 23 April, which would create that difficulty for us.  Of course, I am aware that counsel availability is not the only or the controlling factor but I thought I would mention that as a concern of ours.

HIS HONOUR:   Your proposal was for the plaintiff filing by 29 March.

MR WOOD:   Yes.  I am conscious that is about three and a half weeks from now, but the matter has been brewing for some time.

HIS HONOUR:   Yes.  The availability of the Solicitor‑General is the week following 29 March, that is the week of 1 April, is it?

MR WOOD:   The period where he has limited availability is the period of 8 to 26 April, so on that basis it would be difficult for him to have substantial involvement.  If we were to get the plaintiffs’ submissions on the 8th we would have to file our own submissions on the 23rd.

HIS HONOUR:   Yes, all right.  Thank you, Mr Wood.  Anything further?

MR WOOD:   No, your Honour.

HIS HONOUR:   Mr Keim, if I move the timetable back a little further to Tuesday, 2 April, that does remove six days from the plaintiffs, although it is still four weeks away and given the period of time that the plaintiffs have already had on both matters I would expect that preparations would be fairly advanced already.  Is there any reason why that date cannot be met?

MR KEIM:   Obviously we will meet it.

HIS HONOUR:   More time would always be a luxury.

MR KEIM:   Yes.  We will meet it if we are required to.

HIS HONOUR:   Yes.

MR KEIM:   I was just wondering whether perhaps two extra days for us, making it 4 April, would then give the Solicitor‑General the Friday and the weekend before he becomes unavailable.  Obviously it is a matter for the Court.

HIS HONOUR:   I think if you start work today then that is one of those days.  What I will do is I will set the date for the submissions for the plaintiffs to 2 April.

MR KEIM:   Thank you, your Honour.

HIS HONOUR:   Then the response by the defendant would be on, I think, 15 April which would be – Monday, 15 April and then the reply perhaps 26 April.

MR KEIM:   Just the book of authorities I think is the other ‑ ‑ ‑

HIS HONOUR:   Then the book of authorities can be filed by 1 May.

I will make the orders in the Thoms matter as follows:

1.The special case be referred for consideration by the Full Court.

2.The special case be heard concurrently with the special case in B43/2018. 

3.The plaintiff file 10 copies of the special case book in separate volumes for each special case and serve a copy on the defendant on or before Friday, 22 March 2019.

4.A single set of submissions that addresses both this case and B43/2018 of no more than 20 pages in length is to be filed and served by the plaintiff on or before Tuesday, 2 April 2019.

5.A single set of submissions that addresses both this case and B43/2018 of no more than 20 pages in length is to be filed and served by the defendant on or before Monday, 15 April 2019.

6.A single set of reply submissions that addresses both this case and B43/2018 of no more than 10 pages in length is to be filed and served by the plaintiff on or before Friday, 26 April 2019.

7.The plaintiff file and serve a joint book of authorities in accordance with High Court Practice Direction 1 of 2017 on or before Wednesday, 1 May 2019.

8.Subject to any further order, Part 44 of the High Court Rules 2004 (Cth) will apply, with necessary adaption, to this proceeding.

9.The hearing be listed on a date to be fixed by the Court.

I will make the orders in the Love matter as follows:

1.The special case be referred for consideration by the Full Court.

2.The special case be heard concurrently with the special case in B64/2018.

3.The plaintiff file 10 copies of the special case book in separate volumes for each special case and serve a copy on the defendant on or before Friday, 22 March 2019.

4.A single set of submissions that addresses both this case and B64/2018 of no more than 20 pages in length is to be filed and served by the plaintiff on or before Tuesday, 2 April 2019.

5.A single set of submissions that addresses both this case and B64/2018 of no more than 20 pages in length is to be filed and served by the defendant on or before Monday, 15 April 2019.

6.A single set of reply submissions that addresses both this case and B64/2018 of no more than 10 pages in length is to be filed and served by the plaintiff on or before Friday, 26 April 2019.

7.The plaintiff file and serve a joint book of authorities in accordance with High Court Practice Direction 1 of 2017 on or before Wednesday, 1 May 2019.

8.Subject to any further order, Part 44 of the High Court Rules 2004 (Cth) will apply, with necessary adaption, to this proceeding.

9.The hearing be listed on a date to be fixed by the Court.

Those orders are to be made in each of the cases with the amendments that I have mentioned and the parties will be notified of the date of listing as soon as possible.

MR KEIM:   Thank you, your Honour.  Just at the risk of being impertinent, does your Honour have any idea at this stage as to whether it is likely to be the first week or the second week of the sittings?

HIS HONOUR:   It is very likely it will be listed in the sittings, but unfortunately it is not possible at the moment to say precisely whether it will be heard in the first or the second week.  I appreciate the plaintiffs’ preference is for the second week.

MR KEIM:   I think that preference was expressed for the June sittings, your Honour.  I do not think either party has expressed a preference with regard to that.

HIS HONOUR:   I see.

MR KEIM:   Yes.

HIS HONOUR:   The parties will be notified as soon as possible.

MR KEIM:   Yes, no problem.  Thank you, your Honour.

HIS HONOUR:   Mr Wood, anything further?

MR WOOD:   No, your Honour.

HIS HONOUR:   Thank you.  The Court will adjourn.

AT 10.16 AM THE MATTER WAS ADJOURNED