Minogue v State of Victoria

[2018] HCATrans 260

[2018] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M162 of 2018

B e t w e e n -

CRAIG WILLIAM JOHN MINOGUE

Plaintiff

and

STATE OF VICTORIA

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 13 DECEMBER 2018, AT 9.31 AM

Copyright in the High Court of Australia

MR C.J. HORAN, QC:   May it please the Court, I appear for the plaintiff.  (instructed by Darebin Community Legal Centre)

MS K.L. WALKER, QC, Solicitor‑General for the State of Victoria:   If the Court pleases, I appear with MR A.D. POUND for the defendant.  (instructed by Victorian Government Solicitor)

HER HONOUR:   Yes, Mr Horan.

MR HORAN:   Your Honour will have seen from the written submissions on the directions that there is a difference in the position relating to remittal.

HER HONOUR:   Yes.

MR HORAN:   I need make only two brief submissions.  There are two matters that are missing from the State’s submissions and they are matters of delay and cost.  On the first, the plaintiff’s minimum term or non‑parole period expired now over two years ago and his entitlement to be considered for the grant of parole rests on this challenge.  We say whatever the outcome remittal to the Supreme Court would inevitably end up back in this Court on appeal subject to special leave, whichever party was unsuccessful and we say that would only further delay the resolution of the question whether or not the plaintiff can be considered for release on parole, noting again that his entitlement to be considered on parole – or his eligibility to be considered arose now over two years ago.

Secondly, we say remittal would add unnecessary costs and that is a burden that would fall particularly heavily on the plaintiff as opposed to the State.  Finally, and more generally, we say the matter is one that is suitable for resolution by this Court.  It involves no contested facts.  It raises constitutional issues that are the preserve of this Court and there would be no real assistance to be gained in having the reasons of a lower court on those issues.

So for those reasons we maintain that the matter is not appropriate for remittal.  As noted in the defendant’s outline, the parties have agreed on a suitable timetable if the matter were to remain in this Court and I would submit that directions along those lines would be appropriate.

HER HONOUR:   Thank you, Mr Horan.  Ms Walker.

MS WALKER:   If the Court pleases.  It has not ever been expressly stated by the plaintiff that he intends to seek leave to reopen decisions of this Court, in particular Knight and Crump, which we have referred to in terms of citations in the written submissions and if your Honour will permit me I will not repeat the citations.  But it seems, your Honour, to us that it will be necessary for the plaintiff to seek leave to reopen a very recent decision of this Court that was unanimous, namely Knight, because the legislation in issue is subject to the name of the identified individual really in identical terms to the legislation that this Court upheld in Knight.

Now, in those circumstances, your Honour, the fundamental proposition that the State of Victoria puts is that the fact that a plaintiff might wish to challenge a decision of this Court is no barrier to remittal and, in fact, in those circumstances may even suggest that remittal is appropriate because this Court’s resources will be devoted to an exercise which, in my submission, might ultimately prove to be futile.  This Court’s jurisdiction ‑ ‑ ‑

HER HONOUR:   Lots of applications are futile in this Court, Ms Walker.

MS WALKER:   I am sure that is correct, your Honour, but the second point is that it is not necessary for this Court to retain an application which is fundamentally, in my submission, without prospect of success.  It is appropriate not to waste this Court’s resources on an application of that kind, noting that of course the matter can make its way back to this Court, at least to the special leave point, and at that point a Full Court can consider whether the matter is one that ought to go forward to a Full Court.

I accept, your Honour, that that will involve some delay although presumably the proceedings in the lower court could be the subject of expedition but, in my submission, that is not a fundamental objection to remittal, again in circumstances where the case is weak but also because the plaintiff has no entitlement to be released.  He merely has an entitlement to be considered for parole.  So it is not a case really where liberty is at stake in the same way as where a person’s ultimate conviction might be subject to be set aside.

As for costs, in my submission that is not a significant reason to devote the resources of this Court to a case which we say fundamentally has no real prospects of success.  Those really are the only matters I want to put, I think.  Perhaps just to add, as we have said in our written submissions, we consider that in fact some assistance could be derived from a decision of a lower court because there are some matters in relation to international human rights law which the plaintiff seeks to ventilate and, as we have said, the Supreme Court of Victoria has a specific familiarity and expertise in that area given its role in relation to the Charter. 

Other than that, your Honour, as my learned friend has indicated, if your Honour is minded to refer the matter to a Full Court, then the parties have prepared a proposed timetable which we have put in our written submissions and, like my learned friend, we would be content for directions to be made in accordance with those proposed dates.

HER HONOUR:   I am going to adopt a middle ground.  I am going to keep it for the moment.  I am going to make orders, subject to what you and Mr Horan have to say, along the lines that you have agreed but I will make a decision about whether I will refer it.  I want to see what it looks like first.

MS WALKER:   Yes, thank you, your Honour.

HER HONOUR:   It seems to me that that is the appropriate course to adopt.

MS WALKER:   Yes.

HER HONOUR:   If that was to be adopted then it seems to me – do you have the orders in front of you, both of you?

MS WALKER:   Yes, I have the orders as set out in our submissions, your Honour.

HER HONOUR:   Which I understand Mr Horan agrees with.  Is that right?

MR HORAN:   That is correct, your Honour.

HER HONOUR:   So it would seem to me that one could, in effect, keep up to 1, 2 and 3, that is let us see what you can come up with by way of an agreed special case and then I will have a look at it.  The question is whether you want to come back.

MS WALKER:   Your Honour, it is, I suppose, not entirely clear to me whether the special case will in and of itself necessarily assist your Honour in deciding.

HER HONOUR:   I think it will for this reason – and it is for two reasons, as I see it.  At the moment I want to see, in a sense, precisely the way it is put and I want to see the materials that go to support it.  Secondly, even if I was minded to remit it, then it seems to me it would provide a basis for the Supreme Court to deal with it expeditiously anyway.  So there is a method in the madness.

MS WALKER:   I am sure there is, your Honour.  I merely had perhaps anticipated that your Honour might adopt a course similar to that of Justice Nettle in the ‑ ‑ ‑

HER HONOUR:   What, waiting to see what the defence looks like?

MS WALKER:   Well, in fact, asking for some submissions and evaluating the case once the submissions ‑ ‑ ‑

HER HONOUR:   You can do that as well.  That is another way of dealing with it if you want to do that.  That is probably an even better idea.

MS WALKER:   The only wrinkle, I think, in that approach, your Honour, would be that normally the interveners in support of the plaintiff would need to be filed between the plaintiff’s submissions and the defendant’s submissions, but that might not be an insurmountable obstacle anyway.  It might be appropriate for your Honour to receive those submissions as well.

HER HONOUR:   I do not have a view about that at the moment.

MS WALKER:   Or we could simply defer interveners’ submissions so that your Honour could evaluate the remittal question in light of the submissions put by the plaintiff and the submissions put by the defendant.

HER HONOUR:   Do you have a view, Mr Horan?

MR HORAN:   We are conscious that we want to try and keep things moving so that if it is to be referred to a Full Court that it be ready to be done as soon as possible so we would – the orders could be made up to order 3, but taking out the words “which shall be referred for consideration by a Full Court” and ‑ ‑ ‑

HER HONOUR:   The only thing that I would then do – I think if I was going to do it in the sense of keep it just to make sure that I am clear that it is going to happen, it would be that I would take out order 5 and everything else would stay in.  Do you have ‑ ‑ ‑

MR HORAN:   Yes.

HER HONOUR:   These are the orders that are set out in the State’s submissions.

MR HORAN:   So order 5 in the plaintiff’s submissions and ‑ ‑ ‑

HER HONOUR:   No, order 5 – I am sorry, I think we are working off the wrong document which is why I am concerned to make sure we have the right one.  Sorry, I am looking at your outline of submissions.

MR HORAN:   Yes.

HER HONOUR:   Sorry, I apologise.

MR HORAN:   I think the dates in those were overtaken by ‑ ‑ ‑

HER HONOUR:   I see.  I apologise, it is my fault.  It would be that the amendment to paragraph 3 would be to delete the phrase “which shall be referred for consideration by the Full Court”?

MR HORAN:   Yes.

HER HONOUR:   I apologise, it is my fault.

MR HORAN:   Then presumably order 4 would go.

HER HONOUR:   I do not know about that.  I would quite like to see what the special case looked like.  I would quite like to see the documents that go with it.

MR HORAN:   I think that would be filed under order 3.

HER HONOUR:   Is that right?

MR HORAN:   If they are annexures to the special case they would be filed.

HER HONOUR:   I see.

MR HORAN:   I think the special case book would be one that would include the pleadings and other documents along with the special case.

HER HONOUR:   The reason why I think it might be a good idea is that it would mean that there would be something available for interveners to look at in one spot.

MR HORAN:   Yes.  I certainly do not object to order 4.

HER HONOUR:   I think it should stay for the moment.  I do not see the State objecting so let us leave it in.

MR HORAN:   It could be that we then keep a timetable for submissions and then your Honour could reserve the question whether to refer the special case to the Full Court until after order 9.

HER HONOUR:   After order 9.

MR HORAN:   I think your Honour is right, that even if, contrary to my submission the matter were to be remitted then those submissions would probably stand as submissions in the Supreme Court.

HER HONOUR:   They would and it would go back – exactly.  It seems to me that it provides a basis and foundation for it to be heard and determined quickly, regardless of where it went, depending upon the content.

MR HORAN:   Yes.  The only difference might be the content of submissions as to past authorities of this Court.

HER HONOUR:   Yes and no, maybe, but at least the issues will have been crystallised.

MR HORAN:   Yes.

HER HONOUR:   The relevant authorities will have been addressed.

MR HORAN:   We are content with that, your Honour.  Essentially it is to put in place this timetable but without pre‑empting the question whether or not it is suitable for referral.

HER HONOUR:   Correct, yes.  If you are in by 2 April is there any reason why it should not be listed for further directions on 5 April?

MR HORAN:   No, your Honour. 

HER HONOUR:   That is a Friday.  Is that all right with you?

MS WALKER:   Yes, your Honour.

HER HONOUR:   I will delete 10 for the moment and adjourn the directions hearing to 9.30 am on 5 April 2019.  So the orders will be as follows:

1.By 15 January 2019, the defendant file and serve a defence to the plaintiff’s statement of claim.

2.By 22 January 2019, the plaintiff file and serve notices under section 78B of the Judiciary Act 1903 (Cth) and serve a draft special case.

3.By 5 February 2019, the plaintiff file and serve any agreed special case.

4.By 12 February 2019, the defendant file and serve a special case book.

5.By 19 February 2019, the plaintiff file and serve written submissions.

6.By 26 February 2019, any interveners in support of the plaintiff file and serve written submissions.

7.By 19 March 2019, the defendant file and serve written submissions.

8.By 26 March 2019, any interveners in support of the defendant file and serve written submissions.

9.By 2 April 2019, the plaintiff file and serve written submissions in reply.

10.Adjourn the directions hearing to 9.30 am on 5 April 2019.

MR HORAN:   Yes, if your Honour pleases.

HER HONOUR:   Thank you to all of you.  I wish you all the compliments of the season.

Adjourn the Court.

AT 9.45 AM THE MATTER WAS ADJOURNED