McCloy & Ors v State of New South Wales

[2015] HCATrans 1

[2015] HCATrans 001

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, 19 JANUARY 2015, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR D.M.J. BENNETT, QC:   If your Honour pleases, I appear with my learned friend, MR B.A. MEE, 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 pleases, I appear with my learned friend, MS S. PALANIAPPAN, for the first defendant.  (instructed by Crown Solicitor (NSW))

HIS HONOUR:   Mr Bennett, I have seen your written submissions and your proposed directions.  There is a difficulty with fitting the case in in the March sittings in that the March sittings are already full.  Now, if that is the case, is there any reason why the matter should not stand over until seven Judges are available in June?

MR BENNETT:   In June.

HIS HONOUR:   In June.

MR BENNETT:   I suppose my personal problems are not relevant to that, but I would certainly have some difficulty with that.  Your Honour, the published list for March only has two cases at the moment in it, the published list.  That is Cunneen and a half‑day migration case.  Cunneen, I understand, is estimated for one day.  The March sittings, we have worked out, start on 4 March ‑ ‑ ‑

HIS HONOUR:   Mr Bennett, you can take my word that the March sittings are accounted for.

MR BENNETT:   Yes.  Well, I was only wondering if something had been indicated very recently which perhaps was flexible.  There is no possibility of being put in as a reserve, I suppose.  That would be ‑ ‑ ‑

HIS HONOUR:   I will hear what you say, but I am more interested in whether there is any reason why the matter could not be dealt with in June.

MR BENNETT:   The June sittings are the first week in June – the first two weeks.

HIS HONOUR:   Actually, the second and third weeks in June.

MR BENNETT:   Yes.  At present I will not be in Australia, but that may or may not have to be reconsidered if that were to occur.

HIS HONOUR:   Yes.

MR BENNETT:   The other factor is that from my client’s point of view, of course, June is some time after the election, which is late March.

HIS HONOUR:   Yes.

MR BENNETT:   It is one of the reasons we were anxious to try and get March if we could.

HIS HONOUR:   You wanted a result within two weeks in March.

MR BENNETT:   Well, not necessarily a result, your Honour, but the fact that it was sub judice in the sense of having been argued might well operate as a persuasive factor.

HIS HONOUR:   Not with me, Mr Bennett.

MR BENNETT:   No, no, I mean with ICAC, your Honour.

HIS HONOUR:   Yes.

MR BENNETT:   They have indicated they are not going to proceed with our inquiry until after Cunneen, so in that sense the – we just do not know what the overall timetabling is.  I suppose there is no hope of February – that would be – I just float my coat on that one.

HIS HONOUR:   I am not sure I need to respond to that.

MR BENNETT:   Yes.  Yes, well, there is nothing more I can say in the circumstances, your Honour.

HIS HONOUR:   Mr Solicitor.

MR SEXTON:   We do not have anything to say about that, your Honour.

HIS HONOUR:   Very well, given that the case will not be heard in March, do the parties have anything to say about the proposed dates for the filing of submissions?  Would you prefer more time?

MR BENNETT:   Yes, your Honour, we would seek more time if we can.

HIS HONOUR:   Would you take a moment perhaps, sitting at the Bar table, to formulate some different dates?

MR BENNETT:   Your Honour, the parties suggest that paragraph 5(d) be amended to Monday, 9 February; paragraph (e) to Monday, 16 February; paragraph (f) to Monday, 2 March and paragraph (g) Monday, 16 March.

HIS HONOUR:   Very well.  Thank you.  The directions I propose to make are as follows:

1.The plaintiffs file and serve a special case under rule 27.08 of the High Court Rules 2004 (Cth) by 21 January 2015.

2.Upon the filing of the special case in accordance with order 1, the special case be referred for consideration by a Full Court.

3.Subject to the following directions, Part 44 of the High Court Rules relating to written and oral submissions with any necessary variations or adaptations shall apply to the proceedings.

4.On or before 4.00 pm on 9 February 2015 the plaintiffs file and serve their written submissions.

5.On or before 4.00 pm on 16 February 2015 the plaintiffs file 12 copies, including one unbound, unperforated copy, of the special case book and serve the special case book on the first defendant.

6.On or before 4.00 pm on 2 March 2015 the first defendant file and serve its written submissions.

7.On or before 4.00 pm on 16 March 2015 the plaintiffs file and serve their submissions in reply.

8.The costs of this directions hearing be costs in the cause.

MR BENNETT:   Your Honour, I am sorry to – might I just ask for two other matters?

HIS HONOUR:   Yes, of course.

MR BENNETT:   One, my instructing solicitor just asks that in paragraph (a), that be made, say, 28 January.

HIS HONOUR:   Very well, yes.

MR BENNETT:   The other matter is this, your Honour.  I think your Honour said the June sittings are the second and third weeks. 

HIS HONOUR:   Beginning on Tuesday, 9 June.

MR BENNETT:   Yes.  Your Honour, is it possible to put in a request for the first of those weeks?

HIS HONOUR:   Definitely I will receive the request, Mr Bennett.

MR BENNETT:   If your Honour pleases.  I should be able to fly back and fly over again for that.

HIS HONOUR:   Very well.  Subject to amending order 1 to read “28 January 2015” the orders as I previously indicated are the orders that I now make.  The Court will now adjourn.

AT 9.39 AM THE MATTER WAS ADJOURNED