Palmer & Anor v The State of Western Australia & Anor

[2020] HCATrans 223

[2020] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B26 of 2020

B e t w e e n -

CLIVE FREDERICK PALMER

First Plaintiff

MINERALOGY PTY LTD ABN 65 010 582 680

Second Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

First Defendant

CHRISTOPHER JOHN DAWSON

Second Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 11 DECEMBER 2020, AT 2.29 PM

Copyright in the High Court of Australia

MR G.M. WATSON, SC:   May it please, your Honour, I appear with MR M.A. KARAM and MR R. SCHEELINGS for the first plaintiff.  (instructed by Jonathan Shaw)

MR B.W. WALKER, SC:   May it please, your Honour, I appear with my friend, MS J.L. ROY, for the Premier for the State of Western Australia and the Attorney‑General for the State of Western Australia.  (instructed by Clayton Utz)

HIS HONOUR:   Mr Watson and Mr Walker, first of all, I should apologise for the brutal hour at which we convene, at this time on a Friday afternoon when we should have better things to do.  It is just that time is short at this time of the year and I thought we should do something to get the matter on course before vacation.  I should also apologise for the changes in personnel on this side of the Bench, but hopefully, the Lord willing, that will now have ceased.  Thank you both for your submissions, I found them very useful and very helpful.

In relation to questions of amendment of the charges and particulars, Mr Watson, could I ask you, in the affidavit material that has been filed on your side, there does seem to be a considerable amount of material in which other people – people other than the respondents make unfavourable reference to your client.  Is it some way part of your case that the respondents are responsible for inciting that material?

MR WATSON:   No, a little of that material may be relevant, however, in explaining why the Premier or why the Attorney‑General said what they did, or the context of what they say.

HIS HONOUR:   Right.  Can I also ask you about paragraph 7 of your outline?  Do I take it that your case is that an intention on the part of the respondents to interfere with the administration of justice is to be inferred from the objective facts of what they said on these various occasions?

MR WATSON:   Yes.

HIS HONOUR:   To the extent that your case is that the publications were calculated to have the effect of intimidating your client, is your case that one infers an intention to achieve that result, or is your case also that one can infer from the fact of publication not only that intention but also that the publications have that tendency?

MR WATSON:   Yes, to both of those ‑ ‑ ‑

HIS HONOUR:   I am sorry, Mr Watson, I cut you off.

MR WATSON:   I was going to say, I have looked carefully on those authorities that exist in this…..corner of the law and intent does not seem to be an element of the offence, but we do say that even so, even if we do not need to prove it, we can prove it, by those means to which your Honour just referred.

HIS HONOUR:   Well, apropos of this question about what the law does require, there are certainly some suggestions in the authorities that intent to achieve the result, even in the absence of an effect or a likely effect, might be enough.  That being so, I think it probably is pretty important that your case should be clear about that.

MR WATSON:   We would accept that burden.  How we do that is another matter.  We have offered, of course, to answer a request for particulars.  If it was thought that there was some other method that we should adopt, such as points of claim or the like, we would, of course, obey and conform to anything which the Court wishes.

HIS HONOUR:   Well, I do not mean to be oppressive about that, but I do have in mind…..a suggestion in Mr Walker’s proposed directions in relation to paragraphs 1, 3 and 4 of his proposed directions.

MR WATSON:   Yes, we can do that.

HIS HONOUR:   Okay.  The other thing I meant to ask you, in relation to the framing of the charge that the publications were calculated to impose improper questions, and I ask this because certainly in the authorities there is a special…..improper pressure means more than the pressure itself.  It is something that makes a kind of pressure that might be brought to bear by a suggestion the proceeding should be dropped that would, of itself, be neutral, a contempt because of the impropriety of the circumstances of the pressure, for example, by misrepresentation.

Can I ask you in your formulation – and perhaps this is something you could take up in meeting the directions that we have been discussing, the impropriety – is there a case that there is an impropriety beyond the fact of the publications themselves and the pressure that that might engender, like, for example, a case of misrepresentation or misstatement about the person about whom the words are published?

MR WATSON:   To be frank, I had not considered whether that may be operating here, but I can take that on board, and dealing especially in respect of direction number 4, I think we would have to reveal it there.  But even now I can say that we would primarily rely upon the kind of language which was used at the various times, the various statements that were made, which were strong, we say, and strong enough to constitute improper pressure as I suggest mere pressure.

HIS HONOUR:   Okay.  Well, I think then that is probably all I needed to clarify with you.  Unless you have something more to say to me, I would be disposed to make directions in terms of the directions proposed by Mr Walker, and we will come back to times and dates in a moment.

MR WATSON:   I do not wish to add anything.

HIS HONOUR:   Mr Walker, is there anything you want to add to what you have said in writing and what has passed between me and Mr Watson?

MR WALKER:   No, your Honour.

HIS HONOUR:   All right, then, what I have in mind is – well, to be absolutely frank, I would really like, if we could, to move to a hearing that actually is a hearing of the case and to minimise any interlocutory skirmishing, and that may require a degree of cooperation that, for one reason or another, may not be possible.  But it is what I would like to see and what I would like to aim for, would be directions that would see us come back after the beginning of February with a view to seeing how the land lies and hopefully fixing a date for hearing at that stage.  With that in mind then, Mr Watson, when do you think you could – without undue….. – comply with direction number 1?

MR WATSON:   We can do that quickly, by early next week.

HIS HONOUR:   Well, 4.00 pm on the 16th?

MR WATSON:   May it please the Court, we will do that.

HIS HONOUR:   16 December.  Then any further affidavits – and in this regard can I say if you want to take the opportunity to pare back some of the material that may or may not be necessary, you should feel free to use this direction to do it ‑ any further affidavits by when?

MR WATSON:   I am anxious about this because I would like actually to get the transcripts of the oral recordings taken out by one of the respected organisations, and I cannot really tell your Honour when that might be done.  I think that we could, generally speaking, put that together with the existing transcripts by the end of next week – that is the affidavit.

HIS HONOUR:   Well, if you think that is feasible, that would be excellent.

MR WATSON:   Your Honour, I have reason to think that that would be feasible because I am sitting here looking at Mr Karam and Mr Scheelings.

HIS HONOUR:   All right.  So, 18 December – 4.00 pm on 18 December for two?

MR WATSON:   Thank you, your Honour.

HIS HONOUR:   Three.  And can I just suggest that you do not undertake too heavy a burden, given the time of year, because what I have in mind is that we come back for directions probably at the beginning of the third week in February and I have not brought my diary with me.  But the first – the Monday in the – so, I have it in mind the matter be stood over for further directions until 15 February.  So, if that helps in terms of getting things done.

MR WATSON:   Yes.  Could I suggest that we answer – I think directions 3 and 4 should be answered at the same time, your Honour.

HIS HONOUR:   Yes.

MR WATSON:   And could I just suggest that it be some time during that week starting 1 February?

HIS HONOUR:   By all means, that is ‑ ‑ ‑

MR WATSON:   If I could put it a bit later into that week just to take account of certain – perhaps the 4th?

HIS HONOUR:   Yes.  Well, that is – the 4th.  And, Mr Walker, do you have any problem with any of those?

MR WALKER:   No, none at all; apropos, your Honour’s reference to the desirability of getting it ready for hearing as quickly as possible, we should raise the obvious possibility of the need for section 78B notices.  From our point of view ‑ ‑ ‑

HIS HONOUR:   Mr Walker, could I just ask you to pause.  I take it, are you foreshadowing an implied freedom type issue?

MR WALKER:   Yes.  It is simply that we – I will call it the common law of contempt, like the whole of the common law has to conform itself to the Constitution.  It is unlikely to be – how shall I say – destructive of the possibility of there being contempt of a thalidomide kind in cases generally.  It may, however, have a real palpable effect on what we understand to be the ambition of the case here.  But I simply raise it because until we have

seen the facts and contentions there is risk that a 78B that we drew now would be overtaken by events, and so I am really flagging that we would intend to issue it as soon as we can so as the time for it to operate does not embarrass the Court in setting a timetable, but we do not think that can happen until after we have seen the facts and contentions, if that is an order.

HIS HONOUR:   Okay, I have no problem with that.  Mr Watson, do you have ‑ ‑ ‑

MR WATSON:   None at all.  No problem at all.

HIS HONOUR:   Interestingly, Mr Walker, Sir Frederick Jordan’s judgment in the Bread Manufacturers’ Case – he was decades ahead of his time in his appreciation of the intersection between these two competing goods.

MR WALKER:   Very much so, and your Honour appreciates that we do not see a simple importation of thalidomide as possible.

HIS HONOUR:   Okay.  Very well, then, I will make the directions in terms of the proposed directions provided to the Court by Messrs McGowan and Quigley:  paragraph 1, by or before 4.00 pm on 16 December 2020; paragraph 2, by or before 4.00 pm on 18 December 2020; paragraph 3 and 4 by or before 4 February 2021; and, paragraph 5, the matter be stood over for further directions on 15 February 2021.

Gentlemen, 8.30 Brisbane time would be 9.30 your time, would that suit?

MR WATSON:   Yes, may it please the Court.

MR WALKER:   Yes.

HIS HONOUR:   Very well.  So, 8.30 Eastern Standard Time on 15 February 2021.  Costs reserved.

Thank you, gentlemen.  Enjoy your afternoon.

Adjourn the Court please.

AT 2.47 PM THE MATTER WAS ADJOURNED