McCloy and Ors v State of New South Wales and Anor

[2014] HCATrans 265

[2014] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S211 of 2014

B e t w e e n -

JEFFREY RAYMOND McCLOY

First Plaintiff

McCLOY ADMINISTRATION PTY LIMITED

Second Plaintiff

NORTH LAKES PTY LIMITED

Third Plaintiff

and

STATE OF NEW SOUTH WALES

First Defendant

INDEPENDENT COMMISSION AGAINST CORRUPTION

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 17 NOVEMBER 2014, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friend, MR A.K. FLECKNOE‑BROWN, for the plaintiffs.  (instructed by Toomey Pegg Lawyers)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court please, I appear with my learned friend, MS S. PALANIAPPAN, for the first defendant.  (instructed by Crown Solicitor (NSW))

GAGELER J:   Mr Solicitor, I have seen your submissions.  Do they express the common position of the parties?

MR SEXTON:   I think largely Mr Bennett ‑ ‑ ‑

MR BENNETT:   Yes, they do, your Honour.  Our only concern is this.  We have abandoned all hope obviously of December.  We have virtually abandoned hope of February.

GAGELER J:   Yes.

MR BENNETT:   But the election – the State election is at the end of March.  It would be very desirable, from our point of view, to have the matter heard in the March sittings which is the first two weeks of March.

GAGELER J:   With a view to what, Mr Bennett?

MR BENNETT:   With a view to the likely restraint which the second defendant may show in relation to publication in view of the election and the argument in the case and the pending decision.  With a view to that and, no doubt, it would be relevant in relation to the election to say the matter is sub judice and so on.  But, your Honour, if there is anything that your Honour is prepared to do to assist us to get into the March sittings it would be very much appreciated.

GAGELER J:   Yes.  Well, you are quite right in thinking that there is no prospect of a hearing in February.

MR BENNETT:   Yes.

GAGELER J:   The difficulty, moving on from February, of course, is finding seven Judges to hear a constitutional matter.

MR BENNETT:   Yes.

GAGELER J:   There may be a problem about that, Mr Bennett.

MR BENNETT:   Yes.  Your Honour, as I say all I can say is that it is a very important matter from the point of view of the community and the state of the law and we simply put in that request.  So far as timing is concerned my learned friends’ suggestions in the submissions ought not to interfere – ought not to preclude the matter being heard in March.  We fully understand the need to investigate numbers and so on and there is further work to be done by both sides in sorting out the final form of the stated case which is a lengthy document.

GAGELER J:   Yes.  I am not sure I was given a precise date when you think this process might be complete.

MR BENNETT:   Your Honour was not.  It is a matter for my friend.

GAGELER J:   Yes.  We are up to the third directions hearing, I think.  I would prefer not to have many more.

MR SEXTON:   I appreciate that, your Honour.  I am not sure what would be a useful date to bring the matter back.  We are running out of time this year in a sense.

GAGELER J:   Is before Christmas realistic?

MR SEXTON:   I suspect not, your Honour.  From the discussions that Ms Lowes has had with the Election Authority I think it is unrealistic to do that before Christmas.

GAGELER J:   I can give you a date in January obviously.  Shall we make it towards the end of January?

MR SEXTON:   Yes, your Honour. 

GAGELER J:   All right.  What about Monday, 19 January, to come back before me?

MR SEXTON:   That would be suitable for us, your Honour.

GAGELER J:   Mr Bennett, would somebody on your side be available?

MR BENNETT:   Yes, your Honour, my instructing solicitor.

GAGELER J:   That is a Monday.  If I could see any draft of a special case on the Friday, it would be useful - I will make it noon.

The orders I propose to make are:

1.The plaintiffs file a draft of any agreed special case on or before noon on Friday, 16 January 2015.

2.The matter be relisted for directions before me at 9.30 am on Monday, 19 January 2015 in Sydney.

3.The cost of this directions hearing be costs in the cause. 

MR BENNETT:   If your Honour pleases.

GAGELER J:   The Court will now adjourn.

AT 9.36 AM THE MATTER WAS ADJOURNED