Minogue v State of Victoria

[2017] HCATrans 198

[2017] HCATrans 198

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M2 of 2017

B e t w e e n -

CRAIG WILLIAM JOHN MINOGUE

Plaintiff

and

STATE OF VICTORIA

Defendant

Directions hearing

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 6 OCTOBER 2017, AT 9.28 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 Centre)

MR R.M. NIALL, QC, Solicitor‑General for the State of Victoria:   May it please the Court, I appear with my learned friend, MR G.A. HILL, for the defendant.  (instructed by Victorian Government Solicitor)

HER HONOUR:   Mr Horan, can I ask are you pursuing your application for leave to amend?

MR HORAN:   Yes.

HER HONOUR:   In its entirety?

MR HORAN:   In relation to the new paragraphs 30A to 30E?

HER HONOUR:   Yes.

MR HORAN:   Yes, whether we do so today or at a later time ‑ ‑ ‑

HER HONOUR:   I do not understand that.  What does that mean?

MR HORAN:   Well, we make an application to amend the statement of claim to add those paragraphs raising the new construction argument.

HER HONOUR:   Do you need 30D for it?

MR HORAN:   Well, 30D ‑ ‑ ‑

HER HONOUR:   That is the only bit that I understand the government complains about.

MR HORAN:   Yes.  It may be that 30D is not intended to raise the factual questions which the State ‑ ‑ ‑

HER HONOUR:   So can we take it out?

MR HORAN:   Well, I could revisit whether it could be either taken out or reframed, but ‑ ‑ ‑

HER HONOUR:   Well, I mean, if it does not add anything to paragraphs 30A to C on the construction argument then you do not need it.

MR HORAN:   No.  Well, it was intended not to raise a question about whether the Board could be satisfied of the factual question of the plaintiff’s state of mind.  It was rather intended to contend or allege as a matter of law that the Board could not be satisfied of the factual question that the plaintiff was convicted and sentenced of the relevant offence.  Now, that may be just another way of putting the construction point.

HER HONOUR:   It sounds like it is to me.  It is a construction question.

MR HORAN:   If that is the case we are content to proceed on the basis that that is subsumed within the paragraphs 30A to 30C.  So the sole construction point is that the question raised by the sections is whether or not the prisoner was convicted and sentenced of the offence identified in the section.

HER HONOUR:   That is it.

MR HORAN:   And that is it.

HER HONOUR:   That is a question of law.

MR HORAN:   Correct.

HER HONOUR:   Well, I do not understand then why we need 30D.

MR HORAN:   Well, I could either revisit that or we could press the application to amend without that paragraph.

HER HONOUR:   As I understand the defendant’s submissions, they do not object to 30A to C.

MR HORAN:   Well, in a sense they do not oppose – they neither consent nor oppose to the amendment in any respect.

HER HONOUR:   Well, that is not how I read their submissions.

MR HORAN:   The submission was more directed to the consequences of the amendment for whether or not the case could remain in this Court, and they certainly raise a point about whether if paragraph 30D were included it would raise factual issues which would not be suitable for resolution by this Court which are distinct from opposing the amendment.

HER HONOUR:   Well, I am trying to work out what the argument is, and I understand now from your submissions that it is a question of law.

MR HORAN:   Yes.

HER HONOUR:   I do not understand 30D to add anything to it and so if that is right then at least their objection, as I presently understand it – and

no doubt the Solicitor‑General would tell me where I have it wrong – falls away.

MR HORAN:   I think that is right.  Well, on the basis that – we do only intend to raise a question of construction.  Of course, if the matter were ultimately to proceed to consideration by the Board the plaintiff does not make any concessions about what submissions might be made to the Board.

HER HONOUR:   I am not talking with the Board.  I am dealing with the case that is in front of me.

MR HORAN:   Correct.  I am just careful not to be confronted later with some argument ‑ ‑ ‑

HER HONOUR:   I understand.

MR HORAN:   ‑ ‑ ‑ that we have precluded from raising some alternative argument before the Board when the matter reaches that level, but at this stage we are simply saying that as a matter of construction the section is not capable of applying to the prisoner because he was not convicted of and sentenced for an offence as described in the section.  In one sense, paragraph 30D was a belt and braces approach to raising that question of construction and I am content not to include that paragraph on the basis that the point is sufficiently articulated in paragraphs 30A to 30C.

HER HONOUR:   All right.  So do you oppose leave being given then, Mr Solicitor?

MR NIALL:   Can I just raise one – the short answer is if the plaintiff wishes to amend his statement of claim we do not be heard against it but it may have consequences for the future conduct of it.  That is what we are more concerned about.

HER HONOUR:   Yes, that is too general for me.

MR NIALL:   Well, if 30D were there we would say ‑ ‑ ‑

HER HONOUR:   It is not going to be there.  So just assume for the present purposes that it no longer exists.

MR NIALL:   Thank you, your Honour.  Then if your Honour goes to 30C for a moment your Honour will see that it is crafted in a way, as we read it – and, of course, we have been reading it in conjunction with 30D but we put that to one side – where the only question is what are the elements of the offence which seem to be a narrower question even to the one that my learned friend indicated.  If the argument is and is only that the circumstances relating to the police officer has to be an element of the offence and we note that it has nothing to – the particulars have nothing to do with sentence, for example, then it is a very narrow argument and probably ‑ ‑ ‑

HER HONOUR:   Well, even assuming at the moment the particular was expanded, at the moment the argument is whether or not Mr Minogue was convicted of or sentenced for the offence identified in section 74AAA, i.e. the murder of a person who the prisoner knew was or was reckless as to whether it was a police officer.

MR NIALL:   That is only to be determined by reference to the element of the offence for which he was charged.

HER HONOUR:   Well, at the moment that is the particular that is provided and they are bound by their pleadings.

MR NIALL:   Because the way we would construe it, of course, is that it relates to the circumstances of the offending ‑ ‑ ‑

HER HONOUR:   Well, assume that is right, that is the alternative argument; the alternative argument you would put no doubt by way of defence or other contention is that it is not element based, it is factual based.

MR NIALL:   That is so.

HER HONOUR:   The reason why I ask is, once 30D goes, one is back to the circumstances which means you are going to have to agree some facts, are you not, in the special case?

MR NIALL:   Yes, that is so.

HER HONOUR:   So this is why I do not understand – it seems to me that both of you are boxing at each other and not confronting the inevitable.  I mean, you yourself are going to have to rely upon some facts.

MR NIALL:   That is so, but ‑ ‑ ‑

HER HONOUR:   So is the plaintiff.

MR NIALL:   The difficulty we have is that we are here in the original jurisdiction to raise a constitutional point.

HER HONOUR:   Correct.

MR NIALL:   The plaintiff now says there are now two reasons why the constitutional point does not arise.  The first one is the retrospectivity or retroactivity and the second one is this construction of 74AAA.  Now, neither of those points would be, in our respectful submission – neither of them are in of their own in the original jurisdiction and neither of them would be suitable, in our respectful submission, for the determination by this Court, for a couple of reasons.  One is we do not have a decision from the Parole Board so we do not know what they are going to do and what would happen would be well this – obviously this construction point would be foreclosed but then we would have a decision of the Board, there might be a challenge to that, and we are back in court.  That is one possibility.

Another possibility is that members of the court – some members of the court say the constitutional point does not arise and some members of the court conclude that the constitutional point does arise.  So, it does have the potential to not do that which the original jurisdiction is best, in our respectful submission, to deal with, which is that you have a constitutional point, it does arise and it needs to be determined and it will be authoritatively determined.  What we do not want, with respect, would be a decision of the court where only one Justice, for example, ever gets to the constitutional point.

Now, there is no reason in the ordinary course why this proceeding should not – could not go to the Supreme Court of Victoria, progress in the usual way, we can have arguments about what the evidence might be and the facts might be.

HER HONOUR:   But on your analysis that itself is premature.

MR NIALL:   It might be.

HER HONOUR:   I mean, you either have your cake – you are going to have your cake and eat it too.

MR NIALL:   Well, on this new ground ‑ ‑ ‑

HER HONOUR:   Well, put the new ground aside for the moment and deal with just the ground that is currently pleaded.

MR NIALL:   Yes.

HER HONOUR:   That is a constitutional question.

MR NIALL:   Not the retrospective point.

HER HONOUR:   Well, it is a question which arises as a result of case law that has gone before which in effect raises a constitutional question.

MR NIALL:   As I understood the plaintiff’s argument is this section just does not apply to him as a matter of ordinary construction, putting aside the constitutional point.  If he is wrong about that, the section applies, and he says it is invalid because it interferes with some rule of law principle.

HER HONOUR:   It sounds like a pretty good way of dealing with it.

MR NIALL:   But now there is another ‑ ‑ ‑

HER HONOUR:   Well, put aside for the moment the other construction question, just –I am dealing with your first contention that it does not itself raise a question in the original jurisdiction of this Court.

MR NIALL:   Well, the constitutional point does and if ‑ ‑ ‑

HER HONOUR:   That is not how I understood your submission, that is all.

MR NIALL:   No, plainly there is a constitutional point here.  That is the one that is raised in paragraphs 31, 32 and 33.

HER HONOUR:   I agree with that.

MR NIALL:   No question.  We do not ‑ ‑ ‑

HER HONOUR:   That is where we started.

MR NIALL:   That is where we started and we could agree facts very quickly.  It will be authoritatively determined by the court, no problem.  There are now two construction arguments which stand in the way of that point and we just raise the consideration ‑ we have not put our defence onto it yet – we raise the consideration whether that makes it inappropriate to remain in the court, and we are minded to add to that point is because we will then ‑ assuming there would be a possibility that if we succeed the Parole Board would then make a decision and there might be another judicial review challenge.

HER HONOUR:   Well, that is all right, that is down – if that is right, that is right.  I mean, the other way to do it is for me to state a case which is limited in a sense to that question.

MR NIALL:   The first and clear question?

HER HONOUR:   Yes.

MR NIALL:   But, of course, the plaintiff says, well, it does not arise.

HER HONOUR:   Well, I understand that.

MR NIALL:   That is the problem and, indeed ‑ ‑ ‑

HER HONOUR:   So just step back for a moment.  If we can put aside the application for leave to amend, as I understood it but for this question of the word “complete” which I will come to in a moment, you have agreed that special case.  Is that right?

MR NIALL:   That is so, your Honour, on the pleading which ‑ ‑ ‑

HER HONOUR:   As it currently exists, absent 30A to D.

MR NIALL:   Correct, your Honour.

HER HONOUR:   Do you seek to include the word “complete”, because I must say I find it a surprising contention?  I mean, why is it not subject to subject matter, scope and purpose like every other discretion?

MR NIALL:   The factual issue – and maybe the problem with the word “complete” ‑ ‑ ‑

HER HONOUR:   I mean, it just seems – it adds nothing; it either overstates it or it provides a distraction which is not relevant.

MR NIALL:   It is certainly not meant to try and connote some sort of unbridled legal discretion.

HER HONOUR:   Well, then it does not add anything.

MR NIALL:   The factual issue that is embedded in there is whether there has been any consideration by the Parole Board of the merits of the criteria.  Our point is there has been no consideration of those merits.

HER HONOUR:   Well then “complete” does not add to it.  It has a discretion subject to the subject matter, scope and purpose and that is it, is it not?

MR NIALL:   And has not embarked on ‑ ‑ ‑

HER HONOUR:   Well, that is a separate question.

MR NIALL:   That is a factual question.

HER HONOUR:   But the word “complete” in that sentence does not add anything.  It either overstates it or complicates it, does it not?  It is meaningless.

MR NIALL:   It may seek to do – it may be inapt to do what it is intended to do.  The simple factual point is it has not embarked – the Parole Board has not embarked upon the determination of the criteria and that is relevant because the plaintiff’s ‑ ‑ ‑

HER HONOUR:   It is all in a positive sense; on receipt the Board makes a decision.  If the Board decides to proceed it retains a discretion.  It does nothing more than state in a sense what the Parole Board does.  “Complete” adds nothing to it, does it?

MR NIALL:   That is probably right, your Honour, and we ‑ ‑ ‑

HER HONOUR:   Right.  Well, that can come out.  Yes.

MR NIALL:   ‑ ‑ ‑ add the facts which are probably more important as to what has actually happened on this application.

HER HONOUR:   That is my point.  So I do not understand why we are sitting here debating about something ‑ ‑ ‑

MR NIALL:   If your Honour pleases.

HER HONOUR:   ‑ ‑ ‑ where all the authorities are ‑ ‑ ‑

MR NIALL:   So that would then resolve the case stated and the first two grounds, but if the plaintiff is to say we have in our back pocket another argument why 74AAA does not apply then it should be brought forward ‑ ‑ ‑

HER HONOUR:   No, I know.

MR NIALL:   ‑ ‑ ‑ in this Court or another court.

HER HONOUR:   I accept.  So at the moment as I understand the position, subject to – and I do not seek to – can tell me where I have got this wrong – on the pleading as currently filed and on the acceptance that “complete” comes out, you have an agreement on the special case to go forward.

MR NIALL:   Yes, your Honour, that is correct, and the directions would then be the usual ones in the course of preparation of submissions ‑ ‑ ‑

HER HONOUR:   Correct.

MR NIALL:   ‑ ‑ ‑ and if your Honour was minded to refer it that would be the position.  But we are now ‑ ‑ ‑

HER HONOUR:   No, no, I am just dealing with the position of certainty for the moment.

MR NIALL:   Thank you, your Honour.

HER HONOUR:   I quite like certainty.

MR NIALL:   Thank you, your Honour.

HER HONOUR:   It is a matter which in your view on that basis – those bases we have just discussed – is appropriate to be referred.

MR NIALL:   Yes, your Honour.  Yes, because a constitutional point is raised, we have a view about it, but ultimately it will be raised and it will be determined.

HER HONOUR:   Thank you.  If 30A to D is pursued then you say it should be dealt with elsewhere?

MR NIALL:   Well, no, your Honour.  If it is to be advanced, then it all should be advanced together and that means that it should be dealt with somewhere else.

HER HONOUR:   Yes, I understand.  Mr Horan.

MR HORAN:   We say that it is not ‑ ‑ ‑

HER HONOUR:   You have a choice, I think.

MR HORAN:   With respect, your Honour, Mr Niall puts that we really have to decide now whether to run a point by which the plaintiff might establish that this section does not apply to him, or give it up forever and concede that in fact it applies to him and bring this challenge ‑ ‑ ‑

HER HONOUR:   No, no, that is not the choice.  The choice is you can run it but it will have to go off to another court.  That is the way he puts it.  So we are not seeking to preclude you from doing it at all.  I understand your submission.  The question is ‑ ‑ ‑

MR HORAN:   But that choice is not really a choice at all.  We have to – if there is an arguable point that this section in its terms does not apply to the plaintiff, how can the plaintiff not run that just to keep the case in this Court?

HER HONOUR:   No, I am not asking you to do that.  I am saying to you that if that is your best point, and it is a point that you wish to run – and I do not seek to contend you should not – then it is not a submission for this Court.  It is a submission for another court.  It can go and be determined with the other question of construction.  I mean if it truly is the position this section does not apply to him – and I understand the argument – then that is a pretty quick decision by the Supreme Court of Victoria, without probably much material, it can probably on pretty quickly and be heard and determined.

MR HORAN:   Your Honour, there are two things.  One is this case was started by the plaintiff before my involvement as a constitutional challenge in this Court.

HER HONOUR:   I know.

MR HORAN:   I cannot, without further instructions, make that election and getting instructions ‑ ‑ ‑

HER HONOUR:   No, I am not asking you to.  All I am trying to do is discuss with you where I see the land lying in order for you to go and get instructions.

MR HORAN:   Yes.

HER HONOUR:   The Court is very grateful to you for the assistance you have provided.  The dilemma is this – there are, in a sense, three questions as I understand it now.  There are the two questions of construction which need, arguably, to be answered before you get to the constitutional question.  On the current state of the pleadings it would be, as I understand it, and on the current way in which the special case would seem to be agreed that is ready to go forward.  It is a matter, I think, ultimately for assessing which is the appropriate – two questions for you and for your client:  does it go forward on that basis or do you seek to contend that this argument has merit, that is the new argument. 

The consequences, I think, are these.  There is probably going to be a need to re‑craft the special case to take into account the new argument in any event.  I do not know whether you are going to get agreement on that.  So the question for me then is is it possible to state a case – that is for me to state a case which picks up those issues.  At the moment that, I think, is itself difficult having regard to the nature of the allegations that are being made.

MR HORAN:   If one puts to one side 30D, I would not put it that section 30C is confined to an argument based on the elements of the offence so it may be that the particulars would need to incorporate the absence of any finding on sentencing that the plaintiff knew that the deceased was or was reckless as to whether the deceased was a police officer.

HER HONOUR:   I think what the Solicitor was suggesting was that he of course himself by way of defence would want it put on the circumstances of the offending, i.e. that there was a bomb – he was convicted of planting a bomb outside the police headquarters.

MR HORAN:   But that raises a question of construction.

HER HONOUR:   No, no.

MR HORAN:   A threshold question, your Honour, which ‑ ‑ ‑

HER HONOUR:   No, it raises a more important question and that is what are the facts that you are going to have to agree in order to raise that construction question.  I do not know – that is a very difficult ‑ ‑ ‑

MR HORAN:   There are two stages, your Honour.  The first is what facts are necessary to decide the question of construction.

HER HONOUR:   That is my point.

MR HORAN:   Yes.  The second is – and this ‑ ‑ ‑

HER HONOUR:   You have not agreed.

MR HORAN:   But the second is if the State’s construction is accepted, what facts are necessary to determine the question of the application of the section.  So the facts ‑ ‑ ‑

HER HONOUR:   I do not understand that second point.  It is one and the same point.  Each of you will identify facts and matters that you say are relevant to the construction question.

MR HORAN:   The construction question is whether it is a matter for the Board to look at the factual circumstances of the offending, as Mr Niall puts it, and form a satisfaction as to the prisoner’s state of mind.  Our construction is that that is not the question for the Board.  The jurisdictional fact that the Board needs to determine is whether the prisoner was convicted and sentenced of the offence and we say the facts necessary ‑ ‑ ‑

HER HONOUR:   Can you just stop for a moment – 30A, B and C I do not read as directed to what the Board has to do.

MR HORAN:   No, precisely.

HER HONOUR:   I read it as directed to what section 74AAA starts or applies to as a matter of fact.

MR HORAN:   That is correct.

HER HONOUR:   So why are we talking about the Board?  We are here trying to work out whether or not 74AAA applies to your client or not as a matter of legal analysis.

MR HORAN:   Yes, but the question of construction is, is it necessary – if, on its proper construction section 74AAA requires a finding of jurisdictional fact that the prisoner was convicted and sentenced for the offence identified and that does not turn on some extrinsic inquiry – administrative inquiry into whether or not – into the circumstances of the offending, it simply involves looking at the conviction and the sentence.  So the only facts necessary to determine the application of the section are very limited.

HER HONOUR:   That is your view.  It is not the defendant’s view.

MR HORAN:   We say that that question, whether or not that is the proper construction, is a threshold question because if that is correct ‑ ‑ ‑

HER HONOUR:   No, I accept that but it comes back to my dilemma.  We have a factual dispute about what is relevant to assessing that answer to that question.  So if you wish to pursue it and you tell me you do on your current instructions then you will get leave to pursue it.  They will have to plead to it and we will have to work out what the extent of the factual dispute is and we know at the moment we have certainty on the current pleading with the current draft so your client can then give you appropriate instructions about what to do and if it is truly a factual matter about which you cannot agree, i.e. the additional facts, then it would be inevitable, I think, that it will have to go off because - unless I can sit there and think about a stated case that I might draft and state.

So I think the questions for you, and I am not being difficult, are yes you can have leave.  You might want to reconsider 30D and the particulars to 30C.  The government should plead to it.  You should have a discussion

between the three of you as you can about what facts, if any, need to be agreed or can be agreed to raise the question and if it cannot it cannot.

MR HORAN:   It may be that a question can fall out of the pleadings which is not as bald as does section 74AAA apply to the plaintiff but which is a question directed to a more specific question about the construction of the section.

HER HONOUR:   That may be possible but I think at the moment there is at least a ‑ ‑ ‑

MR HORAN:   The other possibility, your Honour, is that the pleadings can raise the three issues but of course not all of those issues need to be referred – only part of the case can be the subject of the special case.

HER HONOUR:   I think that is what I was trying to be subtle about – the moment you have agreement on part of it, including a draft.

MR HORAN:   Yes.  Now, I should mention - your Honour is aware from previous written submissions that have been put in by the State that also potentially affecting the special case is the pendency of the Bill which would amend ‑ ‑ ‑

HER HONOUR:   I was going to ask about that.

MR HORAN:   ‑ ‑ ‑ introduce amendments to the Corrections Act which appear to be specifically responded to in the construction argument that has been advanced by the plaintiff in these proceedings and would be intended to overtake – or largely overtake that argument.

HER HONOUR:   Do we know where that Bill is up to?

MR HORAN:   I do not have any knowledge ‑ ‑ ‑

HER HONOUR:   Mr Solicitor, do you know what the answer is?

MR NIALL:   It is still before the Lower House so it has not yet passed the Lower House.

HER HONOUR:   Is there an anticipated timeframe?

MR NIALL:   I cannot assist your Honour on that.  The position we have taken, if I may address your Honour on it, is that at the moment the law is as it is and the plaintiff is entitled to bring his proceeding in the usual course.  So we have not sought to put that as a matter – and I understand that presents some difficulties but I do not know whether it will be passed, in the sense that that is a matter for the Parliament to decide.  But we certainly do not submit that the plaintiff should just sit and wait and see what happens, but we thought it was appropriate to at least alert ‑ ‑ ‑

HER HONOUR:   The problem I have is that I have Mr Horan acting pro bono, for which the Court is very grateful, in circumstances where both he and his client are undertaking a considerable amount of work which might ultimately, if not be wasted, then at least be replaced by a new set of facts which will need to be considered.

MR NIALL:   I appreciate that.

HER HONOUR:   That is not to say that this work itself may not be useful and so unfortunately we cannot even have some indication of when it is likely to come back before Parliament.

MR NIALL:   I will endeavour to get those instructions.  Can I suggest, or submit I should say, that we put our defence on ‑ ‑ ‑

HER HONOUR:   I think the steps should be these.  Mr Horan should have time to consider his amendment again in light of this morning’s discussion, which I have found very helpful, both as to 30C and 30D.

MR NIALL:   Yes.

HER HONOUR:   That is the first question.  The State can plead to it.  In the meantime, Mr Solicitor, you are going to have to find out what has happened to this Bill and let Mr Horan and his client know – and I understand it is Parliament – but as best as can be expected what is the timeframe.  Then you will have to work out, I think, as a matter of order, what then happens – whether some part of the case goes forward by way of special case and the rest is left, which is not unusual, and you have a bit that is there already which will preserve your position in relation to the other bit.

The second question is whether or not you can agree facts so that the additional construction question can go up as well.  That does not seem to me to be a difficulty but if it is then you will need to tell me why.  Then third, if it all comes collapsing down because the Bill is passed or it fundamentally changes the landscape then you will have to address that as well.  I know it is unfortunate but I cannot think of any other way through it.

MR HORAN:   I think that is right.  Certainly we can deal with the pleadings and then see how that affects the special case and the options for progressing the matter and it may be that there is further clarity on the Bill

within that timeframe so that we do not have to reach a landing on that and then revisit everything all over again.

HER HONOUR:   I would like that to be avoided as much as possible.  As I said we have no control and nor should we but it would be highly unfortunate.

MR HORAN:   Yes.  At least if we know more about the timing it would help.  I think the suggestion that – the State had suggested 21 days to file a defence, but perhaps if we be given a week or two weeks to – perhaps one week to file ‑ ‑ ‑

HER HONOUR:   You can have as long as you like, Mr Horan.  How long do you want to consider 30C and 30D and get instructions?

MR HORAN:   I would like to say one week but I think that we – I will say two weeks because there is often a time lag in the logistics of getting instructions from the plaintiff and then perhaps three weeks for the State to put on its defence.  There may need to be a reply and then have the matter come back to assess where things stand at the end of that process.

HER HONOUR:   Mr Solicitor, any objection to those?

MR NIALL:   No, your Honour.

HER HONOUR:   How long do you think you need for a reply, Mr Horan – two weeks?

MR HORAN:   Again ‑ ‑ ‑

HER HONOUR:   Well, logistics.

MR HORAN:   We will say two weeks.

HER HONOUR:   On my calculation the orders would be something along the following lines.  What I propose to do is announce what I think they should be and if you tell me where I have it wrong – is that all right?

MR HORAN:   Yes, your Honour.

HER HONOUR:  

1.The plaintiff file and serve a further amended statement of claim by 4.00 pm on 20 October 2017.

2.The defendant file and serve a defence to that further amended statement of claim by 4.00 pm on 10 November 2017.

3.The plaintiff file and serve a reply, if any, by 4.00 pm on 24 November 2017.

4.The matter come back for directions at 9.30 am -

and this is the horrible part of the world – it is either Friday, 1 December which only gives you a week which is probably not long enough, or you will have to wait over until 18 December which is the Monday – or let us make it Tuesday, the 19th, because I have sittings.

MR HORAN:   Yes.  I think perhaps if it could be listed for the 1st and if there are difficulties we can always let you know and seek to have it put back to the week before Christmas.  I think hopefully, given that there are two weeks after the defence for the reply we can be looking at ‑ ‑ ‑

HER HONOUR:   I would like that period – so by 1 December I would like that to be in a position where the Court is told in advance really three things.  Do we have an agreement about what should go forward, if anything – so at the moment we have agreement on the current pleading plus the draft special case – are we adding to it or not?  That is really one question.  Secondly, are we happy for what is currently agreed to go forward and leave any other issue behind which is not unusual, and third, I really would like to know what is happening with this Bill so the Court and also the parties are not wasting their time.

MR HORAN:   Yes, your Honour.

HER HONOUR:   Is that all right?

MR HORAN:   Yes, your Honour.

HER HONOUR:   I will make orders in those terms and reserve costs.  Anything else?

MR HORAN:   No, thank you, your Honour.

HER HONOUR:   Thanks for your assistance.  Adjourn the Court.

AT 10.03 AM THE MATTER WAS ADJOURNED