Nicholas v The Commonwealth of Australia

[2010] HCATrans 342

[2010] HCATrans 342

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S183 of 2010

B e t w e e n -

PAUL NICHOLAS

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

THE CHIEF OF THE DEFENCE FORCE

Second Defendant

Directions hearing

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 13 DECEMBER 2010, AT 9.44 AM

Copyright in the High Court of Australia

MR B. LEVET:   May it please your Honour, I appear for the plaintiff.  (instructed by Kinghan & Associates)

MR S.J. FREE:   May it please the Court, I appear for the first defendant.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes.

MR FREE:   Your Honour, could I hand up a set of proposed orders that are by consent?

HER HONOUR:   Yes.

MR FREE:   As your Honour will know, the special case was filed in accordance with the Court’s directions on the last occasion.  It was filed on 30 November, so the orders which are proposed involve the referral of that special case to the Full Court for hearing, and then otherwise deal with getting the matter ready for hearing with a timetable for submissions, and a time for the filing by my client of a special case book.

HER HONOUR:   Yes.  I am just looking, Mr Free, at the proposed timetable, simply with this in mind.  The parties may be aware of the recent amendment to the Rules with the provision in Part 44 for a timetable for submissions, which dates from the grant of special leave, or in this case, it would date from the referral into the Full Court, an order which I propose to make.  On that scheme, one would be looking at 10 January for the – I see.  Yes, the proposal is that the first defendant file and serve the case book before 28 January, then the plaintiff 21 clear working days before the hearing.  That is adopting the old style of approach.

MR FREE:   Yes, your Honour.

HER HONOUR:   Is it going to present particular difficulties?  I am aware that we have the January break coming up, but what I did have in mind perhaps, allowing for some extension of the provisions under the Rules, but for the plaintiff’s submissions to be filed in accordance with what will become the approach that the Court takes, namely from today’s date.

MR FREE:   Yes, your Honour.

HER HONOUR:   Ordinarily, it should be 28 days from today’s date.  That would bring one to 10 January, and that may be a little ‑ ‑ ‑

MR LEVET:   Subject to the appeal book, we can do that.  They are at an advanced stage.

HER HONOUR:   Very well, Mr Levet.  Twenty one days thereafter for you, Mr Free.  Is that reasonable?

MR FREE:   That should be convenient, your Honour, yes.

HER HONOUR:   Very well, and then there would be another seven days for any submissions in reply.  As far as the interveners go, it is a question of seven days from the date of filing of the submissions of the party in whose interests the interveners come to support.

MR FREE:   Yes, your Honour.

HER HONOUR:   Very well.  That will require considerable adjustment to the proposed orders, but it presents no difficulties.

MR FREE:   No, your Honour, I think as far as ‑ ‑ ‑

HER HONOUR:   What about service of the case book?

MR FREE:   That can certainly be brought forward, if that is convenient to be done before the plaintiff’s submissions.  In this case, the special case book will only involve the special case, the pleadings, the 78B notice, and perhaps the submitting appearance by the Chief of the Defence Force, so that does not present any difficulties.

HER HONOUR:   When could that be done, then, to accommodate a timetable that will have the plaintiff’s submissions being filed by 10 January?

MR FREE:   Yes, perhaps by 22 December, your Honour.

HER HONOUR:   Thank you.  All right, the other matters I should just draw to attention under the Rules are the requirement now for the certification with respect to submissions, that they are suitable for publication, and if there is any difficulty, the need to provide a set of submissions in a suitably redacted form and the requirement for an outline of argument to be handed up before commencement of a party’s submissions at the hearing.

MR FREE:   Yes, your Honour.

HER HONOUR:   Yes.  I think we are looking at the likelihood of a date in the sittings in April, which in fact begin 29 March.  Does that present problems?

MR LEVET:   It is suitable, your Honour, and my client is indeed anxious that it come on as quickly as possible.

MR FREE:   We have no difficulties with that, your Honour.

HER HONOUR:   Yes.  What do the parties estimate the likely length of the hearing to be?

MR FREE:   I think one day at a maximum, your Honour.

MR LEVET:   Yes, your Honour.

HER HONOUR:   Very well.  In that case then, I make the following orders:

1.The special case filed in the High Court on 30 November 2010 be referred to the Full Court for hearing.

2.The first defendant to file and serve the special case book on or before 22 December 2010.

3.The parties and any interveners are to file submissions in accordance with the following timetable:  the plaintiff is to file written submissions in accordance with the provisions of Part 44 of the Rules on or before 10 January 2011; the first defendant is to file written submissions in accordance with the Rules on or before 31 January 2011; any interveners are to file written submissions in accordance with the provisions of Part 44 of the Rules within seven days of the filing of the submissions by the party whose interests the intervener supports.

4.I grant liberty to the parties to apply on three clear working days notice.

5.The costs of today are costs in the cause.

Are there any further matters to be attended to, Mr Free or Mr Levet?

MR LEVET:   I am sorry, your Honour, I had not considered the new rule.  Is there provision for a reply submission?

HER HONOUR:   Mr Levet, indeed there is.  I will add to those orders just made an order that:

6.The plaintiff is to file any written submission in reply on or before 7 February 2011.

MR LEVET:   Thank you, your Honour.

HER HONOUR:   Yes.

MR FREE:   Nothing further, your Honour.

HER HONOUR:   Very well.  The Court will adjourn.

AT 9.51 AM THE MATTER WAS ADJOURNED