Palmer & Anor v The State of Western Australia & Anor

[2020] HCATrans 148

[2020] HCATrans 148

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

Second Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

First Defendant

CHRISTOPHER JOHN DAWSON

Second Defendant

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO CONNECTION

ON THURSDAY, 17 SEPTEMBER 2020, AT 1.59 PM

Copyright in the High Court of Australia

MR P.J. DUNNING, QC:   May it please the Court, I appear with my learned friends, MR R. SCHEELINGS and MR P.J. WARD, for the plaintiff.  (instructed by Jonathan Shaw)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with MR J.D. BERSON for the defendants.  (instructed by State Solicitor’s Office (WA))

HER HONOUR:   Yes, thank you, gentlemen.  I see that the special case has wound its way through the thicket of culling and it is now in final form - or subject, I understand, to any agreed updates.  Is that right, Mr Dunning?

MR DUNNING:   That is correct, Chief Justice, yes.

HER HONOUR:   I understand that it is proposed that the annexures which should be kept separate from the special case itself and be provided as a separate volume are cross‑referenced to the court book where all of the – is that right, or is it going to form part of the court book?

MR DUNNING:   Chief Justice, I must confess I am not – as I understood it, the plan was that where in the special case there was a reference to a document, the special case will then have an annotation to a page number that will take you to where that is to be found in the court record.  I am not precisely sure, I regret to say, as to whether that means that it is annexed immediately behind it or it is elsewhere in the book, but it has a page reference to within the book.

HER HONOUR:   Mr Griffin, the Deputy Registrar, I think has had some conversation with your instructing solicitor which suggests that the documents to which the special case refers are not to be annexed and referred to as annexures in the usual manner, but rather the relevant documents will be found in the Court book.

MR DUNNING:   Chief Justice, that sounds correct.  I apologise for not being quite across that detail.

HER HONOUR:   Yes.

MR DUNNING:   I know those discussions have been ongoing.  Yes.

HER HONOUR:   Yes, I see.  It is proposed that the signed special case be filed on 21 September at the same time as the Court book will, according to the directions previously made.

MR DUNNING:   Correct, yes.

HER HONOUR:   There is only one question I have in relation to the special case as settled between the parties, and that concerns the status of the – I think the heading is called “The plaintiffs’ complaints”, starting at page 20 of the special case.  Could I just have some clarification about whether that is meant to be a record of the plaintiffs’ complaints or whether they have status as agreed facts, or a combination of the two?

MR DUNNING:   Arguably a combination of the two.  I did not understand it to be controversial either as to who the plaintiff is, what his and its business are, and what the desire to go to Perth is.  So I would have thought it is effectively all agreed facts.

HER HONOUR:   There are some allegations, of course, about wastage of expenditure on rent and outgoings and the fact that the personal plaintiff conducts proceedings.  If they are not agreed facts, Mr Solicitor, is there no issue really taken with them?

MR THOMSON:   As we understand the position, the purpose of these matters is to establish the standing of the plaintiffs to bring the proceedings and to that extent the complaints demonstrate an intention to travel to Western Australia and the fact that the relevant regime regulates that travel to Western Australia and in those circumstances it is difficult to see how he would not – the plaintiffs would not have standing.

HER HONOUR:   I was going to – is that intended to be a live issue?

MR THOMSON:   Not from our perspective, but there has been some media attention perhaps given to the nature of the documents that were lodged and that are recorded in paragraph 82.  The documents will be provided to the Court and there has been some media issue as to whether or not they were proper applications, but whether or not they were proper applications they demonstrate an intention to come to Western Australia and the reason why the first plaintiff was kept out is because of the regime and he challenges the regime and says it should not have been there to keep him out.

HER HONOUR:   Mr Solicitor, in terms of the status of the paragraphs under the heading “The plaintiffs’ complaint”, I take it that it is not sought by the defendants to put them in issue?

MR THOMSON:   No.

HER HONOUR:   Thank you.

MR THOMSON:   But can I put it this way?  In relation to the – for example, in paragraph 78 there is a reference to amounts in dispute in the tens of billions of dollars.  It is not an acceptance that there is any tens of billions of dollars that is owed.  That is the amount that is disputed, so that a complaint is made that there is that claim but it is not an acceptance of the claim.

HER HONOUR:   Yes, very well.  Gentlemen, there are no amendments required to the directions previously made?

MR DUNNING:   Not from us, thank you, Chief Justice.

HER HONOUR:   Mr Solicitor?

MR THOMSON:   The only thing I would draw your attention to, Chief Justice, is this, that the submissions and the chronology of the plaintiffs are to be filed on 21 September 2020, which is next Monday.  Then in paragraph 7 there is an order about the submissions of the interveners in support of the plaintiffs to be filed by the following Monday, 28 September. 

To this point all of the interveners have indicated – the interveners are Queensland, Tasmania, Victoria, South Australia and Northern Territory.  Queensland, Tasmania, South Australia and the Northern Territory have indicated they are intervening in the defendants’ support and Victoria has not indicated a position.  The ones that have not intervened, at least at this point, are the Australian Capital Territory and New South Wales.  The Commonwealth, of course, did intervene but has now withdrawn its intervention so it may well be that there is nothing filed on 28 September.

HER HONOUR:   Yes, I see.  Thank you for that.  Gentlemen, there being no further orders, I will simply adjourn the Court.  Thank you.

MR THOMSON:   Thank you, your Honour.

AT 2.07 PM THE MATTER WAS ADJOURNED