North Australian Aboriginal Justice Agency Limited v Northern Territory of Australia

[2015] HCATrans 100

[2015] HCATrans 100

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M45 of 2015

B e t w e e n -

NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY LIMITED (ACN 118 017 842)

Plaintiff

and

NORTHERN TERRITORY OF AUSTRALIA

Defendant

Directions hearing

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 30 APRIL 2015, AT 9.32 AM

Copyright in the High Court of Australia

MR M.K. MOSHINSKY, QC:   If the Court pleases, I appear with my learned friend, MS K.E. FOLEY, for the plaintiff.  (instructed by Ashurst Australia)

MR M.P. GRANT, QC, Solicitor‑General for the Northern Territory:   May it please the Court, I appear for the defendant, Northern Territory of Australia.  (instructed by Solicitor‑General for the Northern Territory)

HIS HONOUR:   Yes, Mr Moshinsky.

MR MOSHINSKY:   If the Court pleases, this is the return of the plaintiff’s summons for directions.  The matter has been issued in the original jurisdiction of this Court.  We filed a short outline of submissions.

HIS HONOUR:   I have read those documents.  I have read the statement of claim.

MR MOSHINSKY:   Thank you, your Honour.

HIS HONOUR:   Yes.

MR MOSHINSKY:   Your Honour, this matter appears to us to be suitable to be the subject of either a special case or a case stated to the Full Court.  We do not apprehend that there should be any difficulty agreeing the text of such a document or that there should be a need for any fact finding by the Full Court.  Hence, what we would seek is a timetable really consistent with that course.

HIS HONOUR:   Yes.  Have you had any preliminary discussions with the Territory about what might happen?

MR MOSHINSKY:   We have, your Honour.  We have discussed some draft timetables.  A bit depends on when the Court may be able to set the matter down.  The timetable would vary depending on that matter.

HIS HONOUR:   Before we come to that, can I raise an issue which you say in your written submissions is not a matter for debate?  Is there going to emerge a question of standing, a question about standing in this matter because it is not just a matter as between parties, I think?

MR MOSHINSKY:   Yes, we accept that, your Honour.

HIS HONOUR:   Why should we not be confronting that issue now, if needs be your side of the record reconstituting the proceeding in a way that avoids any issue of standing?

MR MOSHINSKY:   Your Honour, what we had proposed in relation to that issue was that we would include in the special case or case stated sufficient facts for the issue to be resolved should the Court wish to delve into that issue ‑ ‑ ‑

HIS HONOUR:   The difficulty is I do not think it is a question of if the Court wishes to.  There is at least an available point of view that absent standing there is no matter.

MR MOSHINSKY:   Yes, we understand ‑ ‑ ‑

HIS HONOUR:   It then becomes not a question of choice of whether the Court gets into it.

MR MOSHINSKY:   Yes.

HIS HONOUR:   As I say it does not seem to me to be beyond wit to reconstitute this proceeding with a natural person who has been dealt with under these provisions who asserts – perhaps rightly, perhaps wrongly, who knows – that there was therefore some form of false imprisonment.

MR MOSHINSKY:   Yes, your Honour.

HIS HONOUR:   One would rather doubt that the damages at issue would be perhaps large.  One might take leave to doubt that, but was it not Dr Robertson and the New Balmain Ferry Company who ran a false imprisonment action because he would not pay the penny to get out of the turnstile at the other end of the ferry terminal.  Now, as I say, these are not problems I am going to confront, Mr Moshinsky, but it would be unfortunate if this thing got into a Full Court – whether in the form of an agreed case of some form or some other way and the case then goes off on an issue of standing, if that problem, confronted early enough, can be avoided.

MR MOSHINSKY:   Yes, I understand that, your Honour.  Could I just say – two points on that.  We are somewhat comforted by the fact that in the NAALAS v Bradley litigation (2004) 218 CLR 146 which ended up in this Court which dealt with the organisation, NAALAS, and NAAJA is the successor to NAALAS, the issue of standing was agitated at first instance and decided in favour of standing by Justice Weinberg at first instance. That issue was then not taken on appeal.

HIS HONOUR:   I am not going to give you a kerbside opinion about whether there is or is not a real issue of standing. 

MR MOSHINSKY:   Yes.

HIS HONOUR:   All I am – just as a pure question of case management trying to obviate problems and avoid them rather than have them emerge later in the piece.

MR MOSHINSKY:   Yes.

HIS HONOUR:   Now, what the parties do with these idle meanderings of the retiring Justice is going to be a matter entirely for them.

MR MOSHINSKY:   Can I propose this course, your Honour?  We appreciate your Honour raising this issue with us.  One should not underestimate the practical difficulties of identifying an appropriate individual plaintiff.

HIS HONOUR:   Yes.

MR MOSHINSKY:   It may well be that we are able to do that and add an additional plaintiff, but in the interim we would urge the Court to proceed on this basis, that we would include in the case stated or special case the facts which we would seek to rely on to support standing.  We do not think they are going to be contentious.  We do not think there would be any need for fact finding on that issue.  Then if the case continues to go forward on that basis there is the material before the Court to decide the standing issue in conjunction with the other issues.

HIS HONOUR:   Could I put this on the table so that both sides can give some thought to it?  What would be the advantage, what would be the disadvantage of my simply standing the directions over until late in the period between the next sittings – so between the May and June sittings – recognising that these are parties who are well able and well responsible enough to get on and look at questions of agreed facts, if that is the path it is going to go down, as well as any question of reconstituted proceeding and simply leave it at that.  Now, that may not be something you wish to answer now until I hear from the Solicitor, but that is a possible path to go down.  It may be best, I think, Mr Moshinsky, if I hear what the Solicitor has before I ask you for your answer to that pregnant question.  Mr Solicitor.

MR GRANT:   Your Honour, I have previously indicated to my friend that we do not seek to challenge the plaintiff’s standing in the matter.  We do not consider it colourable.  We are sensitive to the practical difficulties to which my friend has adverted.

HIS HONOUR:   I think your side of the record might have better information about who could be a possible plaintiff perhaps than the plaintiff’s side of the record, Mr Solicitor, but ‑ ‑ ‑

MR GRANT:   We do, your Honour, but my friends have used the freedom of information legislation and they probably do as well. 

HIS HONOUR:   That gave them lots of numbers, yes.

MR GRANT:   Yes – because it is a four‑hour window, your Honour, it is difficult to get somebody who might have standing and as your Honour has indicated, it would need to be turned into a false imprisonment claim in order to have an individual plaintiff bring the proceedings.  We anticipate that there will be interventions from the various Attorneys but we also anticipate that those parties will not be joining issue with us.  We anticipate that it ought to be impugned legislation so the difficulty your Honour has identified remains.  There will not be parties opposed to each other joining issue if the ultimate determination is that the plaintiff does not have standing.

As I say though, your Honour, we do not seek to challenge that but we are quite comfortable with your Honour’s proposal to adjourn the directions hearing until sometime later to allow my friend to pursue possible alternative plaintiffs ‑ ‑ ‑

HIS HONOUR:   My overall timetable that I have in mind is that this thing, if it is to go forward - and at the moment I see no reason why it should not go forward in the form of either stated case or special case - would come on no later than the September sittings.  Now, I suspect it is too tight to get it ready for the August sittings but I think September is probably a realistic outer limit to get it ready for hearing in a Full Court and, as things presently stand, it may well be possible to get it on in September. 

That will mean quite a deal of work, I think, has to be done by the parties in drafting whatever form of case and questions the parties think is the best way to put it out over the next few weeks and at the same time then I think there would have to be this separate issue being considered along the way of well, is the action to be reconstituted by addition of a plaintiff or some such mechanism.  I think the formal expression of those steps is probably relatively straightforward.  It is what will lie behind the formal expression of the steps that – I will not say it worries me – that is where the time will go.

MR GRANT:   Yes.

HIS HONOUR:   So if I do stand the matter over till say the first week of June it would be with counsel departing the Court with the judicial injunction “Get on with it” ringing in their ears that although the order would simply be a standard “over until that time” it would be on the clear expectation that the parties would be doing their best to advance the preparation as hard and as fast as they can.  Is that sensible, Mr Solicitor?

MR GRANT:   It is, your Honour.  At the very least we would anticipate that we would have a draft special case to put to the Court at that time that was agreed between the parties and, as my friend indicates, incorporates all the matters they might wish to put in relation to standing.

HIS HONOUR:   Yes.

MR GRANT:   We certainly do not assert that the plaintiff’s concern is a mere intellectual or emotional concern here.

HIS HONOUR:   Yes.  I am not going to embark on the joys of the law relating to standing, Mr Solicitor.

MR GRANT:   Yes.  We gave up after Onus v Alcoa, your Honour.

HIS HONOUR:   You may say that.  “I could not possibly comment” is the only response I could possibly make, I am sure, Mr Solicitor.  If we stood it over to Wednesday, 3 June or such other time as might be fixed, so far as your side is concerned, Mr Solicitor, would that ‑ ‑ ‑

MR GRANT:   We are content with that, your Honour, yes.

HIS HONOUR:   Mr Moshinsky, you have heard what has been said.  What do you now have to say about the kind of proposal I had indicated?

MR MOSHINSKY:   We are content with that course.  Your Honour, I think we should be able to wrap up the issues that have been raised in the time available between now and 3 June.

HIS HONOUR:   If I simply stand over the summons for directions to 3 June at 9.30 at Melbourne or such other time as may be fixed and reserve costs.  Do I need to make any other form of order?

MR MOSHINSKY:   No, I do not think so, your Honour.

MR GRANT:   Not on our part, your Honour.

HIS HONOUR:   Is there anything else that counsel desire to raise about the matter?

MR MOSHINSKY:   No, your Honour.

HIS HONOUR:   There will be orders in those terms.  Adjourn the Court.

AT 9.47 AM THE MATTER WAS ADJOURNED