Mineralogy Pty Ltd & Anor v State of Queensland

[2020] HCATrans 71

[2020] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B29 of 2020

B e t w e e n -

MINERALOGY PTY LTD

First Plaintiff

DANIEL JACOBSON

Second Plaintiff

and

STATE OF QUEENSLAND

Defendant

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 4 JUNE 2020, AT 2.16 PM

Copyright in the High Court of Australia

MR P.J. DUNNING, QC:   May it please the Court, with my learned friends, MR R. SCHEELINGS and MR P.J. WARD, for the plaintiffs.  (instructed by Jonathan Shaw)

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friends, MS F.J. NAGORCKA and MR K.J.E. BLORE, on behalf of the defendant.  (instructed by Crown Law (Qld))

HER HONOUR:   Mr Dunning, a few matters of clarification.  The defendant has raised the question of the identification of the market for the section 92 case and the impacts on it.  Are you proposing to particularise that?

MR DUNNING:   In light of the matter raised in their written submissions, yes.

HER HONOUR:   Yes.  That will probably need to be something attended to in the other case – the earlier case as well.

MR DUNNING:   Yes.

HER HONOUR:   They have also raised the effect on the business of the first plaintiff, the nature and extent of the effect.  It is not immediately apparent – for instance, it is not even apparent how many staff are involved beyond the second plaintiff.  Are you going to particularise that as well?

MR DUNNING:   Yes.

HER HONOUR:   All right.  As to the second plaintiff, I take it this is facts somewhat analogous to Gratwick v Johnson, the interstate fiancé - the direction does refer to a person who is ordinarily resident and the defendant’s question whether this would be applicable to the second plaintiff.  Are you ‑ ‑ ‑

MR DUNNING:   We were going to deal with that.

HER HONOUR:   In the pleading itself.

MR DUNNING:   I think we were proposing to write to them and give them evidence of it.  We are happy to do it in the pleading if it is convenient to have it in one spot.

HER HONOUR:   I think it probably needs to be dealt with in the pleading, unless the issue evaporates in some way.

MR DUNNING:   Yes. 

HER HONOUR:   I will leave it on this basis, that if the defendant continues to require that to be explained I think it should be done in the pleading.

MR DUNNING:   Certainly.

HER HONOUR:   The section 109 case refers to operational inconsistency in paragraph 25 because the Commonwealth Minister has issued determinations under the Biosecurity Act restricting entry only in designated parts of Queensland, rather than the whole, which is to say he has not exercised the power under that Act elsewhere.

MR DUNNING:   Yes.

HER HONOUR:   Paragraph 25(e) uses the language of “direct inconsistency, alter, impair” – in fact I think the words used are “deny or impinge”.  How is this kind of inconsistency said to arise?  How does the Queensland determination cut across what the Commonwealth Minister has or has not done?

MR DUNNING:   The way the case, Chief Justice, is framed is that in circumstances where the Commonwealth Minister could have chosen to have closed the Queensland border ‑ ‑ ‑

HER HONOUR:   But did not.

MR DUNNING:   ‑ ‑ ‑ but did not – and has chosen to close a much smaller part of the State, then the Commonwealth in the exercise of its power under the Biosecurity Act has considered that to be a sufficient response and the Queensland one is operationally inconsistent with it.  At some point can I raise a matter in relation to the 109 point?

HER HONOUR:   Yes, of course.

MR DUNNING:   Our learned friends for Western Australia have delivered an amended pleading today alleging that the Commonwealth direction will come to an end on 5 June.  On the basis of that I will need to give very careful consideration to the 109 case.

HER HONOUR:   I see.

MR DUNNING:   I am sorry, I do not mean to cut your Honour off ‑ ‑ ‑

HER HONOUR:   No, no, I appreciate your intervention.  But whilst the pleading is as it is I suppose we should look at it more carefully.

MR DUNNING:   Of course.

HER HONOUR:   Are you saying then that the pleading at 25(e) allows some implied access, that the non‑exercise of power by the Commonwealth Minister carries an implication of access being allowed to the balance of the State?  Is that the kind of argument?

MR DUNNING:   That is the kind of argument, yes. 

HER HONOUR:   Paragraph 25(f) refers to section 28 of the Biosecurity Act, but on my reading that provision says only that powers exercised under that Act must not be exercised in a way contrary to section 92.  Does it actually – is there an inconsistency with the direction since it is not exercised under the Biosecurity Act?

MR DUNNING:   That is something – I may give that some additional thought in light of the point you have raised.

HER HONOUR:   Okay.  I appreciate that it is put as a kind of a purposive argument in relation to the Biosecurity Act, but section 28 is quite particular in its provisions.  All right, and the section 117 case – now, section 117 usually operates by reference to the out‑of‑State person being resident in the legislating State and then determining whether the discrimination operates differently.  How is section 117 said to apply by reference to the direction in this case?

MR DUNNING:   It is said to operate in this way.  It preferences persons – it preferences access to Queensland on the basis of residency in Queensland.

HER HONOUR:   But that points up the question, does it not – section 117 refers to a person being – the out‑of‑State person hypothetically being in the State, whereas your case is about entry into the State.  You have not quite got there for the purpose of section 117, on one view.  Or is it being said that if you look at the out‑of‑State person as a resident within the State that the discrimination is removed in some way.  Is that how it is meant to operate?

MR DUNNING:   Well, the way it is meant to operate is that it discriminates against persons who are resident of another State in their desire to access Queensland.  Now, true it is it is an atypical ‑ ‑ ‑

HER HONOUR:   It is to enter the State.

MR DUNNING:   Yes.

HER HONOUR:   Section 117 hypothesises the out‑of‑State person being already in the State and then the discrimination operating in that circumstance.  That is my difficulty.

MR DUNNING:   Yes.

HER HONOUR:   I mean it might well be overcome.  It is just not clear to me what your case is.

MR DUNNING:   Can we take that on board as well?

HER HONOUR:   Yes, of course.

MR DUNNING:   Thank you.

HER HONOUR:   What additional length of time at this point do you think this case is likely to add to Palmer v Western Australia?

MR DUNNING:   If they were heard concurrently I would have thought that a third day should be allocated and they would comfortably fit within two or three days because the argument is going to be, say, for the 117 issue ‑ ‑ ‑

HER HONOUR:   Pretty much the same.

MR DUNNING:   Correct.

HER HONOUR:   We were talking on the last directions hearing about interventions.  There might not be quite as many as one thought about, of course, but we will soon know, I guess.

MR DUNNING:   I certainly know that Queensland and Tasmania have intervened in the Western Australian proceedings.

HER HONOUR:   I see.  Tasmania has?

MR DUNNING:   I believe that is so, yes.

HER HONOUR:   All right.  I believe that otherwise you have no objection to the defendant’s revisions to the draft orders?

MR DUNNING:   No, and I have read the matters our learned friends have raised in their submissions about the draft special case and we will discuss

that with them and, indeed, our reply in the Palmer v WA proceedings goes in today and it is well advanced and at least in that case dealing with the factual issues appears to be going well.

HER HONOUR:   On the defendant’s timetable, the directions come back two days after directions in the Palmer Case.

MR DUNNING:   Yes.

HER HONOUR:   I see.  All right.  Yes, thank you, Mr Dunning.  Mr Solicitor, do you have any matters you wish to raise?

MR THOMPSON:   No, your Honour.  The only point we would make is that the two orders come together, as your Honour will have seen, on 22 June.

HER HONOUR:   Yes, I see that they line up for the finish date and, as I indicated to the parties in the Palmer matter last week, if the issues with respect to facts are overcome and the special case can proceed on agreed facts I would be looking to set the matter down for hearing in the first week in July.  I think I said early July last week, but the parties could be advised that it would be the first week in July.

MR THOMPSON:   Thank you, your Honour.  We did not seek to address the fact that there is a difference in the dates for review, but we had difficulty coming ‑ ‑ ‑

HER HONOUR:   That is not a problem.  In your express concern about the facts and the way they are rather generously pleaded at the moment, you are not necessarily saying there would be a need to remit.  You wish to reserve your position about that ‑ ‑ ‑

MR THOMPSON:   I think we need to analyse it more closely, your Honour.

HER HONOUR:   All right.  There is only one amendment, I think, needs to be made to the defendant’s revisions to the draft orders and that is at (f)(iii).  I think that should probably either be a separate order or it should commence “In either event a directions hearing is set down for 2.15 on 12 June”.

MR THOMPSON:   The latter – is that satisfactory, your Honour, if we take the “In either event”?

HER HONOUR:   Yes – “In either event” and make it easy.  You do not have to renumber then.

MR THOMPSON:   Thank you, your Honour.

HER HONOUR:   Otherwise there will be orders in terms of the defendant’s revisions document.

MR THOMPSON:   If your Honour please.

HER HONOUR:   Yes, thank you, gentlemen.

MR DUNNING:   Your Honour, can I just ask…..do anything, but when your Honour says the first week of July, is that the week starting 29 June or the week starting – it must be 6 or 7 July?

HER HONOUR:   No, no, it is the week commencing 29 June.  I am sorry, yes, that’s the first week – the week which has the first part of July in it.

MR DUNNING:   Yes, thank you.

HER HONOUR:   The Court will adjourn.

AT 2.28 PM THE MATTER WAS ADJOURNED