McGinty, Gallop and Halden v State of Western Australia

[1995] HCATrans 171

TRANSCRIPT
OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 4Law Courts Building1 Victoria AvenuePerth WA 6000GPO Box 9955Perth WA 6001Phone [phone]Fax [phone]        

HIGH COURT OF AUSTRALIA

TOOHEY J

No P 44 of 1993

JAMES ANDREW McGINTY
GEOFFREY IAN GALLOP
STANLEY JOHN HALDEN

and

STATE OF WESTERN AUSTRALIA

PERTH

9.05 AM, FRIDAY, 16 JUNE 1995

Continued from 27.4.95

HIS HONOUR:   Mr Johnston?

MR P.W. JOHNSTON:   If it please the court, I appear with my learned friend, MR LASKARIS for the plaintiffs in this matter.

HIS HONOUR:   Yes.  Thank you.  Ms Wheeler?

MS C.A. WHEELER QC:   May it please your Honour, with my learned friend, MR MITCHELL, I appear for the defendant.

HIS HONOUR:   Thank you.  Macliver?

MR P MACLIVER:   Yes, if it please your Honour, I appear for the Attorney General for the Commonwealth, intervening.

HIS HONOUR:   Thank you.  Now, to whom do I look?

MS WHEELER: I think I can give your Honour the background fairly briefly. Your Honour should have a summons for directions. A chamber summons dated 2 June. I will not take your Honour to it at the moment. It has an odd history. The effect of the defendant's chamber summons is to attempt to add a question dealing with severability to the case stated. By way of background, briefly, the defendant had perhaps without appropriate consideration always taken the view that if the challenged sections of the Electoral Distribution Act fell then the remainder of the Act would be so radically altered that it could not survive.

As a consideration turned to what would happen in the lead up to an election, assuming the Court's decision were unfavourable to the defendant in this matter, it began to seem increasingly like a good idea to get a precisive answer from the Court on the question of severability and for that reason it was sought to add the additional question.  Now, a memorandum of consent inserting that question and then extending the time for filing submissions so as to enable that question to be dealt with was sent to the Court for file, and on I think 12 June ‑ ‑ ‑ 

HIS HONOUR:   Yes.  That is right.

MS WHEELER:   Yes.  The plaintiffs almost immediately after that was sent off expressed some concern about possible ambiguity in the question.  I do not know if your Honour has it front of you?  Perhaps if I could hand up ‑ ‑ ‑ 

HIS HONOUR:   The question itself you mean?

MS WHEELER:   The question itself.
HIS HONOUR:   Yes.  I do.

MS WHEELER: Yes. Well, the ambiguity was thought to be that there was a possibility that the question might open up the validity of the Acts Amendment to Electoral Reform Act 1987 by which the relevant sections were inserted in the Electoral Distribution Act. Now, the defendant does not see any such ambiguity. We have always understood that a question asking if particular sections of the Electoral Distribution Act 1947 were severable - was a question asking whether the sections were severable from that Act, and on the basis that I put that understanding on the record and that both parties agree that that is what the question was intended to and does mean.

The plaintiffs as I understand it are now happy to consent to an amendment of the case stated to insert that question.  If your Honour, were minded to make an order amending the case stated as a result of that consent to insert that question relating to severability, there then arises a question as to the extensions of time required to enable the parties in their written submissions to deal with those matters.

HIS HONOUR:   Well, do I take it then that you are seeking an order in terms of the memorandum of consent which has in fact been consented to but has not been made the subject of an order by this Court.

MS WHEELER:   Almost in terms of the memorandum of consent, because of the time that has elapsed, your Honour, dealing with the alleged ambiguity and sorting that out, the parties are now in the position of wanting a little additional time and if your Honour has the memorandum of consent in front of you ‑ ‑ ‑ 

HIS HONOUR:   Yes.  I do.

MS WHEELER:   The parties would be prepared to consent to orders extending time for the plaintiff's submissions to 30 June, the defendant's submissions to 28 July and if I might pause here, your Honour, that is 4 weeks rather than the previous 3 weeks from the time at which the plaintiffs were required to file their submissions.  That is primarily because the plaintiffs have indicated they are not yet certain how narrowly focused their submissions will be and if they are very broad ranging, we may require the 4 weeks - we hope we will not, then it seemed to us that the interveners would only require a fortnight which would take them to 11 August but I understand from, my learned friend, Mr Macliver would seek 3 weeks which would be 18 August.  I do not have instructions to consent to that but I do not make any submissions in relation to it.

HIS HONOUR:   Now, what is the hearing date for this?

MS WHEELER:   The week commencing 12 September.  So, the last of the submissions would be in approximately 3 - just over 3 weeks.

HIS HONOUR:   Be either the 11th or 18 August depending on what view the Court takes in Mr Macliver's application.

MS WHEELER:   Yes, your Honour.

HIS HONOUR:   Yes.

MS WHEELER:   But subject to that question of the 7 days, the parties are agreed.

HIS HONOUR:   So then in effect you are seeking an order in terms of the memorandum of consent, subject only to those variations that you speak of as to dates.

MS WHEELER:   Yes.  If it please your Honour.

HIS HONOUR:   Yes.  Thank you, Ms Wheeler.  Mr Johnston?

MR JOHNSTON:   Yes, my learned friend has indicated our attitude on this, sir.  We are satisfied with the clarification that has been indicated as far as the question of concern that it does not have any wider ranging effect, as we thought it might perhaps have been intended to and the dates are otherwise satisfactory.  I should perhaps add, that I spent 3 days in Sydney with my leading counsel last week and he was indicating he thought that an extension of time would be preferable in any event, insofar as he is minded possibly to narrow the rather wide ranging case that we have submitted in this submission, so - which would also have that benefit if that course does follow.

HIS HONOUR:   It is bringing it - it is not in any sense perilously close but these things have a habit of going on a bit and I do think it is important that the Court has the benefit of all submissions well in time.  Do you have a view or a submission as to the Commonwealth's position.

MR JOHNSTON: I have had discussions with counsel for the Commonwealth, last week, and in a sense it is difficult to predict if we were to go the full range of our submissions - which if I might just indicate at this point of time, would involve pursuing a proposition that there is a principle of equality - implied equality in the Constitution flowing from the decision in Leeth. The Commonwealth have indicated they would probably want to, if that does remain as part of our case, require very full consideration of that.

HIS HONOUR:   Sorry, require?

MR JOHNSTON:   Very full consideration, because they may in fact want to part company as interveners from us on that and so that if our case is maintained in full at the moment, as the submissions are presently drafted, I think they would certainly need the 3 weeks.  That was the indication that I got from Junior Counsel for the Commonwealth last week.

HIS HONOUR:   I note Mr Johnston the order regarding the filing of submissions does not contemplate any response by the plaintiffs.

MR JOHNSTON:   That is so, sir, and it may well be that a response is warranted.  It may be sufficient at this stage for us if we did see the necessity to do as your Honour indicated last time, we could pick up such matters by leave - by an application to, otherwise 7 days after the interveners file their response we could perhaps - in fact I put it to your Honour, as a contingency that we would also seek leave to file a response 7 days after the interveners have filed theirs.  They will be precautionary but save a later applications.

HIS HONOUR:   I was not thinking so much in terms of the interveners, I must admit, as whether the plaintiffs are likely to wish to file anything by way of a reply to the defendant's submissions.

MR JOHNSTON:   Defendant's submissions.  Yes.  Well, that would be the principle basis on which we would want to ‑ ‑ ‑ 

HIS HONOUR:   I am just reluctant to extend the time too close to the hearing date.

MR JOHNSTON:   Yes.  Well, it could be accomplished - the objectives could be accomplished if we file any response at the same time as the interveners and that leaves 3 weeks.

HIS HONOUR:   Well, that is what I was thinking.  It that period, that is the period for filing were applied to the defendant's submissions and the period in which the interveners are require to file submissions ran concurrently then that will not lead to any further extensions of time effectively.

MR JOHNSTON:   That would be so, sir.

HIS HONOUR:   Yes.  Well, I will see what Mr Macliver has to say.

MR JOHNSTON:   Thank you.

HIS HONOUR:    Thank you, Mr Johnston.  Mr Macliver?

MR MACLIVER:   Yes, your Honour, my instructions were that the Commonwealth did require a period of 3 weeks from the time for the defendant's submissions to be put in and that was originally to the 21 July, so that would have given the Commonwealth until 11 August.  The defendants have now sought that extra week to 28 July and on that basis I would seek to extend the time for the intervener's submissions until 18 August.  That is still 3½ weeks before the commencement of the hearing, your Honour.

HIS HONOUR:   Yes.  Assuming the time limits are met it is. 

MR MACLIVER:   Yes.

HIS HONOUR:   All right.  Thank you.

MR MACLIVER:   Thank you.

HIS HONOUR:   Ms Wheeler do you wish to say anything about the question of a reply by the plaintiffs?  I mean whether there should be provision for one at all and if there should, what time limits should be imposed?

MS WHEELER:   If there were to be a reply, your Honour, it would be very desirable from our point of view that there be a time limited for the filing of one and it would seem appropriate that the time limited be the same as the time limited for the intervener's submissions.  That gives us an appropriate amount of time to consider them prior to the hearing. 

HIS HONOUR:   I do not think it should incumbent upon the plaintiffs to file a reply.

MS WHEELER:   No.

HIS HONOUR:   But, it may well be there is something arising out of the defendant's outline ‑ ‑ ‑

MS WHEELER:   No, your Honour.

HIS HONOUR:   ‑ ‑ ‑ that the plaintiffs consider warrants a reply.

MS WHEELER:   And it would be helpful to have some limited so that it is not left until too close to the hearing, we would accept that, with respect your Honour.

HIS HONOUR:   Does the limitation or the provision of time for the interveners, fixed at say 18 August present any problem from the plaintiff's point of view?

MS WHEELER:   Provided that it was fixed at that date and not one minute later, I would not expect it to be too great a problem for the plaintiffs, your Honour, no.

HIS HONOUR:   All right.  Thank you for that.  Very well, in the light of what has been said this morning and on the understanding that these time limits must be regarded absent any and completely unforeseen, as the final and fixed times for the filing of submissions.  There will be an order in terms of the memorandum of consent which I will take as the - in a sense as the summons for directions because it is more extensive than the summons itself, in terms of paragraph 1 of that memorandum.  In terms of paragraph 2, substituting 30 June for 23 June.  In terms of paragraph 3 substituting 28 July for 14 July.  Inserting a paragraph to read:  3A - at least to stand as 3A and to read:  The time within which the plaintiffs are required to file and serve any comprehensive outline of submissions and supporting materials by way of reply to the defendant's outline be fixed at 18 August 1995 an order in terms of paragraph 4, substituting 18 August for 28 July and an order in terms of paragraph 5 of the memorandum.  Anything else Ms Wheeler?

MS WHEELER:   No thank you, your Honour.

HIS HONOUR:   Mr Johnston?

MR JOHNSTON:   No, thank you, your Honour.

HIS HONOUR:    Mr Macliver?

MR MACLIVER:   No, your Honour.

MS WHEELER:   Except I might indicate that there were two summons for directions, one taken out by each party.  Perhaps it would be appropriate for the defendants to take an order in terms of - well, I mean an order in terms of the order ‑ ‑ ‑ 

HIS HONOUR:   I do not know that I have seen two summons for directions.

MS WHEELER:   I thought there was ‑ ‑ ‑ 

HIS HONOUR:   I have seen ‑ ‑ ‑ 

MS WHEELER:   No.  No, I am wrong there.
MR JOHNSTON:   I do not think we did in the end take one out, we were on the verge of it but did not proceed with it.

MS WHEELER:   All right.  In that case there is not question as to who should take out the order.

HIS HONOUR:    It is the plaintiff's summons, is it not?

MR JOHNSTON:   No.  Not as I understand it, sir.  It is the defendant's summons.

HIS HONOUR:   Well, I have a document headed:  Summons for Directions, dated 2 June which is expressed to be of an application on the part of the plaintiff.

MR JOHNSTON:   It must be a misprint, I think sir, because it emerges on the next page that the signatory is Mr Mitchell for the State Crown and I think that was just ‑ ‑ ‑ 

HIS HONOUR:   Yes.  All right.  The less said about that the better.  Court will now adjourn.

AT 9.21 AM THE MATTER WAS ADJOURNED
INDEFINITELY