Minogue v State of Victoria

[2017] HCATrans 120

[2017] HCATrans 120

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 TUESDAY, 6 JUNE 2017, AT 9.29 AM

Copyright in the High Court of Australia

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

MR G.A. HILL:   Your Honour, I appear for the defendant.  (instructed by Victorian Government Solicitor)

HER HONOUR:   Thank you.

MR HORAN:   Your Honour, as you will be aware, we are in the process of receiving instructions on a proposed amended statement of claim.

HER HONOUR:   Yes.

MR HORAN:   The drafting of the proposed document is reasonably well advanced and as things currently stand I am confident that the plaintiff will be in a position to file an amended document by Friday, 16 June, which is Friday week.

HER HONOUR:   Yes.

MR HORAN:   We then seek directions setting a timetable for the completion of pleadings with a view to bringing the matter back for directions at that point when it is hoped the parties will be able to – if they have not already conferred on a draft special case once pleadings have closed.

HER HONOUR:   Yes.

MR HORAN:   My current understanding is there is unlikely to be any dispute as to the material facts but there may be – I do not want to rule out the possibility that the parties will differ as to what facts are relevant, but that is accommodated in ‑ ‑ ‑

HER HONOUR:   Ordinarily – I should not say ordinarily – in some special cases relevance can be addressed – so long as the facts are agreed the extent to which they are relevant and they ought to be used can be the subject of debate and argument.

MR HORAN:   Yes.

HER HONOUR:   But there can be no dispute about the facts.

MR HORAN:   No.

HER HONOUR:   That is no dispute about the existence of a fact.

MR HORAN:   Yes.  I am not aware of any contested factual matters, so the special case should fall out of the pleadings and there might be some need to carefully formulate the questions but they should fall out of the statement of claim as to the grounds contained therein for the plaintiff’s claim that the relevant section does not validly apply to his case.

HER HONOUR:   Yes, and have you had discussions with Mr Hill about these matters?

MR HORAN:   Only very briefly.  I understand the State’s position is that they are not opposed to a time being fixed for the plaintiff to file an amended document but they want the – they do not consider it appropriate to make any orders for steps beyond that.

HER HONOUR:   Maybe I should hear from Mr Hill.  He can persuade me why he does not like proposed paragraphs 2, 3 and 4, or 5 and 6.

MR HILL:   Your Honour, the State position would just be – I am very heartened to hear my learned friend say it is not expected there will be any dispute of fact but at the moment the State has not seen the document so that is the only concern.  We would rather not sign up to a timetable unless and until we have seen the document and if the document is as Mr Horan says then I anticipate there would not be any difficulty with the parties submitting consent orders to your Honour to complete the timetable.

HER HONOUR:   Just explain to me why it is then that I cannot make 2 to 6 and if you do not like it you can come back.

MR HILL:   Your Honour, that is the other way of doing it.  Our position would be ‑ ‑ ‑

HER HONOUR:   I just do not want to have more expense.  I would rather – if Mr Horan says what he says and we take it on face value for the moment then I think we should make paragraphs 2 to 6 and if you have a problem you can speak to Mr Horan and let me know.

MR HILL:   Your Honour, if the Court pleases, that ‑ ‑ ‑

HER HONOUR:   The only question I have for this – and this is because I remember what it was like being a parent at the Bar – is paragraph 2 all right for your side, given the date?

MR HILL:   Of course, your Honour, that is absolutely fine.

HER HONOUR:   Okay.

MR HILL:   I appreciate that, your Honour.  That should not be a problem.

HER HONOUR:   All right.  I propose to make paragraphs 1 to 6 of the orders, which I will sign and put on the Court file and, as I said, Mr Hill, if, as a result of receiving the document, there are problems, then you can speak to Mr Horan and if they cannot be resolved by early the following week then you should let me know and we can bring it back.

MR HILL:   If the Court pleases.

HER HONOUR:   Is there anything else you wish to raise?

MR HILL:   Can I say this, your Honour?  It may be, just to put it on the record, the State’s position, your Honour will remember from the first hearing, is that the provision of legal assistance to the plaintiff greatly assists in having the matter stay in this Court and could I just reiterate that comment that for as long as my learned friends are here the State is finding the progressing of the matter – would anticipate the progressing of the matter will occur very smoothly.

HER HONOUR:   Thank you very much.  Mr Horan, anything else?

MR HORAN:   Not from our side, your Honour.

HER HONOUR:   All right.  I will make those orders in terms of paragraphs 1 to 6.  Thank you for your attendance.

Adjourn the Court.

AT 9.34 AM THE MATTER WAS ADJOURNED