Mallard v The Queen

[2005] HCATrans 322

[2005] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P77 of 2004

B e t w e e n -

ANDREW MARK MALLARD

Applicant

and

THE QUEEN

Respondent

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON THURSDAY, 19 MAY 2005, AT 4.30 PM

Copyright in the High Court of Australia

MR M.J. McCUSKER, QC:   May it please your Honour, I appear for the appellant.  (instructed by Clayton Utz)

MR B.W. WALKER, SC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

HIS HONOUR:   Now, what stage are we at, Mr McCusker?

MR McCUSKER:   Your Honour, all the submissions of the appellant, the respondent and the appellant’s reply have been filed.  Agreement has been reached, I understand, on the number of days which will be required for the hearing of the appeal.  The agreement is two, but could possibly run into the third day.

HIS HONOUR:   Yes.  If two days is allowed will the parties divide that time by agreement?

MR McCUSKER:   Yes, that is the proposal, your Honour.

HIS HONOUR:   Yes.

MR McCUSKER:   We have not actually reached agreement on that.

HIS HONOUR:   You should, subject to anything Mr Walker may say, order your affairs on the assumption that two days will be allowed and that that time should be divided, and the Registrar informed of the division that is made.

MR McCUSKER:   Certainly.

HIS HONOUR:   Yes.

MR McCUSKER:   I was going to propose, with two days being allowed, that three‑quarters of a day be allowed for the appellant, three‑quarters ‑ ‑ ‑

HIS HONOUR:   Well, the parties sort that out and I will put my No 12 size boot into the arena only if I have to, Mr McCusker.

MR McCUSKER:   Thank you, your Honour.

HIS HONOUR:   Yes.

MR McCUSKER:   The respondent has requested that there be a supplementary appeal book filed.  We agree with that, and would like to add two matters to it.  The supplementary appeal book would be approximately 60 pages.  It would contain material that is referred to in the respondent’s submissions and the appellant’s submissions in reply, which do not yet form part of the appeal book.

HIS HONOUR:   Yes.

MR McCUSKER:   The appellant, your Honour, would undertake to file and serve within 10 days the remaining nine copies of the appeal book that are required.  They have not all been filed as yet because there was some question as to whether there might be an objection, but that does not appear to be the case, together with an alphabetical index to the transcript extracts contained in the appeal books and also substituted appendices to the appellant’s submissions, which will contain cross-references to the appeal book pages.

HIS HONOUR:   Just interrupting you there.

MR McCUSKER:   Yes, your Honour.

HIS HONOUR:   The supplementary appeal book.  Given that we have only got the one copy appeal book filed so far ‑ ‑ ‑

MR McCUSKER:   Yes.

HIS HONOUR:   Is there or is there not advantage to be gained by trying to interleave the supplementary material into the book so that material appears in a single series rather than in two disconnected series.

MR McCUSKER:   I have briefly discussed that with my instructing solicitor, your Honour, and I am told that it would be much more difficult to do that than to simply put a supplementary book in, but if your Honour so directs we will, of course, see if we can do it.

HIS HONOUR:   Let me leave that aside for the moment and come back to it.

MR McCUSKER:   Certainly.

HIS HONOUR:   So you had said the appellant has to serve the further necessary copies.  There is to be an index of transcript, there is to be substitute appendices to the appellant’s submissions, cross-referenced to the appeal book.

MR McCUSKER:   Yes.

HIS HONOUR:   What other steps are contemplated?

MR McCUSKER:   No other steps that I am aware of, your Honour, other than obtaining a date for the hearing, of course.

HIS HONOUR:   Can I raise with you a subject that I mentioned at the last directions hearing?

MR McCUSKER:   Yes.

HIS HONOUR:   And that is the possibility of an issues index.  Am I right in understanding that the proposed index is simply alphabetical ‑ ‑ ‑

MR McCUSKER:   Yes, it is.

HIS HONOUR:   Without attempting to collate by reference to issues?

MR McCUSKER:   That is the present proposal.

HIS HONOUR:   Is there advantage to be gained by my directing the parties to settle upon an agreed index, indexed by issue?

MR McCUSKER:   That probably would be of advantage to the Court, I think, your Honour, yes.

HIS HONOUR:   That would be in addition to, not in substitution for, the index already proposed.

MR McCUSKER:   Yes.

HIS HONOUR:   So that there are two forms of index.

MR McCUSKER:   Yes ‑ ‑ ‑

HIS HONOUR:   Is there likely to be any difficulty about settling the issues?  The utility of this index depends upon the care with which, and the accuracy with which the issues are first identified and then the indexing is done.

MR McCUSKER:   Yes.

HIS HONOUR:   It is a particularly useful tool if done well.  If it is not done well it just becomes a jolly nuisance.

MR McCUSKER:   That is the problem, your Honour.  I cannot say whether there will be any difficulty.  We would certainly do our best to reach agreement.

HIS HONOUR:   Yes, is there any other aspect of the matter that you would wish to raise?

MR McCUSKER:   Not for myself, your Honour, thank you.

HIS HONOUR:   Yes, thank you, Mr McCusker.  Mr Walker.

MR WALKER:   Your Honour, as to the last, it does appear that the exchange of written submissions would lend itself to optimism that the issues can be agreed sufficiently to make an indexing at least feasible to consider and we, for our part, cannot think of any reason why we should not embark on that exercise.

HIS HONOUR:   Can I be quite blunt about it?  If I were counsel with a brief on either side I would be saying to someone, “Give me an index by issue on these issues which I would identify”.

MR WALKER:   Yes.

HIS HONOUR:   And if counsel are going to be preparing the case in that fashion, as I said last time, I am anxious that the Court not be kept out of the secret of the work thus produced.

MR WALKER:   Yes, your Honour.  For our part, we would be happy to share that part of our brief.

HIS HONOUR:   Yes.

MR WALKER:   In relation to the number of days, my friend has correctly said that though two was mentioned in discussion between me and Mr Jackson, the possibility of requiring or spilling over into a third day was raised.  For our part, we are content to proceed on two days and we are confident that we will agree and that we will be able to do so very quickly.  As to the supplementary appeal book, I am sorry, your Honour, I have not turned my mind to the question of interleaving and I would like the opportunity for my solicitors to discuss that with the appellant’s solicitors because if it can be done, it would be more convenient, particularly if an index issues means that documents on the same topic will be occupying more or less the same physical location.

HIS HONOUR:   I know it is a fuss, I know it is more expense, but I just wonder whether in the long run it may prove of such advantage that it is worth doing.

MR WALKER:   Your Honour, I really should defer to the solicitors in that regard because they are the ones who would have to commission the work.

HIS HONOUR:   What I am minded to say, Mr Walker, is that I would give no direction about it.

MR WALKER:   Yes.

HIS HONOUR:   I would indicate that supplementation of the material is permitted to indicate that at first blush it would seem to me to be preferable that the supplementation be by way of interleaving, but in the end rely upon the good sense of the solicitors perhaps after consultation with the Deputy Registrar ‑ ‑ ‑

MR WALKER:   Yes, may it please your Honour.

HIS HONOUR:   ‑ ‑ ‑ to resolve the question.

MR WALKER:   Yes.  We are very content with that approach.  Your Honour, there is one other matter.  The argument which commences on page 22, paragraph 40 under the heading “Non-Disclosure” ‑ ‑ ‑

HIS HONOUR:   Your submissions or the other submissions?

MR WALKER:   In our submissions, responded to in the passage commencing on page 10, paragraph 21 in the appellant’s submissions in reply, includes argument which it occurs to us ought to have been signified by notice of contention.  We should file one.  We seek leave to file one out of time.  This is the argument that we wrongly made a concession in the court below.

HIS HONOUR:   Yes, what time do you need to do that?  I will ask Mr McCusker presently whether he has objection to it, but what time do you seek?

MR WALKER:   Mid next week, your Honour.

HIS HONOUR:   Yes.

MR WALKER:   Your Honour, subject to that, those are the only matters that we would wish to raise.

HIS HONOUR:   Yes, thank you.  Mr McCusker this question of notice of contention.  Do you want to be heard against my directing that the respondent may have until 4.00 pm, 26 May to file and serve a notice of contention in this matter?

MR McCUSKER:   No, thank you, your Honour.  We are aware of the contention, of course, from the respondent’s submissions.

HIS HONOUR:   Yes, well I will give a direction in those terms.

MR McCUSKER:   Your Honour, while I am on my feet, could I mention in relation to the interleaving question that my instructing solicitors have handed me a note pointing out that there are seven volumes with a large number of pages in the appeal books and to interleave would, in effect, throw out of sequence a lot of the cross-referencing that has already been done in our submissions, both the appellant and the respondent’s submissions.  So, there would be a difficulty in that.  We would have to renumber the pages.

HIS HONOUR:   No, not if we resort to a Commonwealth alphabetical or decimal interleaving system, Mr McCusker.  It is a resort which I hate but it may be the lesser of the evils to have page 1, 2, 3, 4.116, as the method of pagination.

MR McCUSKER:   Certainly, your Honour.  Anyway, my instructing solicitor will take that up with the Registrar as suggested.

HIS HONOUR:   Yes, very well then.  I will note what is said about duration, indicate to the parties that they should order their affairs on the assumption that a period of two days will be allowed for the case and that they should divide the time on that assumption, making the division known to the Deputy Registrar.  I need I think give no direction permitting supplementation of the appeal materials other than the general indication I have earlier given, nor do I think it right that I should fix a date yet by which the appeal books are to be filed.  I assume that the questions of interleaving may affect the time within which that can be done.  I have no doubt both sides are well aware of the need to get on with it without me fixing a specific date.

As for providing of indexes, I notice that the appellant will supply an alphabetical index of transcript.  I notice further that the parties will give further attention to preparing an index by issue.  I do not I think need to give the parties a formal direction to set about that.  If it seemed that the parties wished to follow some other course though, it would be as well if they drew that to the attention of the Deputy Registrar so that I might be informed and I would then, depending on what is revealed in that communication, give some further thought to whether I called the parties back.

I notice further that the appellant will substitute appendices to his submissions suitably cross‑referenced to the material.  I have given a direction about the filing and service of a notice of contention.  I would propose otherwise simply to adjourn the directions to a date to be fixed.  As at present advised, it would seem to me unlikely that a further directions hearing would be necessary.  I cannot give the parties yet any indication of where or when the appeal will be fixed for hearing other than to say that fixtures have, I understand, been made up to and including the month of June.  Beyond that, we will see.  May I thank counsel for their attendance and otherwise adjourn.

AT 4.46 PM THE MATTER WAS CONCLUDED