Palmer & Anor v The State of Western Australia & Anor

[2020] HCATrans 138

[2020] HCATrans 138

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 FRIDAY, 4 SEPTEMBER 2020, AT 3.01 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 plaintiffs.  (instructed by Jonathan Shaw)

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

HER HONOUR:   Thank you.  Mr Dunning and Mr Solicitor, I have had an opportunity of viewing the proposed directions, which I understand the timetable to be and format of them to be by consent.  Is that correct, Mr Solicitor?

MR THOMSON:   Yes, that is correct.

HER HONOUR:   My concern, gentlemen, is with the draft consolidated special case.  You would both be aware that, generally speaking, it is rather unusual to have 98 pages for a special case and given, in particular, that there have been findings made by Justice Rangiah in the Federal Court, I am rather curious to know why there is this rather large amount of facts gone into in the special case.  For instance, the topic – the special case only goes up to 23 July, which predated his Honour’s findings.  I assume that much of the special case – much of the facts or some of the special case were before his Honour.

If I could just, by way of outline, before I ask you to give a comment upon this, note that under the topic “Spread and transmission” there are some 41 pages detailing outbreaks and clusters.  In the topic “Commonwealth and State virus control measures” there are some 28 pages.  The context for the West Australian directions are a bit shorter, 12 pages, but my general inquiry, I suppose, is what is it intended that this Court is meant to do with all of these?

I can, of course, perfectly understand that the Court would need each of the directions made by Western Australia and the advice on which it was made.  I will come to the question of economic impact as a separate topic later, but just dealing with the question of how the COVID virus control has been referred to - and I would accept that the directions made by Chief Medical Officers in other States might be relevant as comparisons or background, but the sheer detail of some of these facts, I am somewhat at a loss to understand, as I have said, what this Court is meant to take from them.  What is the purpose, from your point of view?  Mr Dunning?

MR DUNNING:   Your Honour, I understand some of the particular detail was matters that Western Australia considered important to have in the special case and in the interest of finding agreement, and given it was

uncontroversial we agreed to that.  I accept that is not a complete answer to your Honour’s question but it is an explanation as to where we have arrived at.  There is an additional matter that I think weighed on both sides and that was there was agreement, at least broadly in relation to the content of the special case, for the trial before Justice Rangiah, and I think there has been a reluctance to depart from that which formed part of the basis of his Honour’s reasons.  But obviously we have heard carefully what your Honour has said.

HER HONOUR:   Mr Dunning, was the draft special case put before his Honour largely in the form it appears, or was it separate facts that were introduced into evidence from it?

MR DUNNING:   No, the former, your Honour.  The special case substantially in the form it appears was part of the material before his Honour and certainly his Honour’s intention was to annex it to his reasons for judgment.  Certainly programming directions were made to that effect, although I must confess that the versions of his Honour’s judgment I have seen have not had it, but that might just be the versions that were sent to me.

HER HONOUR:   But it was put before his Honour as agreed facts?

MR DUNNING:   Yes.

HER HONOUR:   Then his Honour has made his findings on the basis of those facts?

MR DUNNING:   That is correct, your Honour, yes.

HER HONOUR:   So that brings my question into even sharper focus.

MR DUNNING:   I understand it does.

HER HONOUR:   What is this Court meant to do?  Are we meant to review his Honour’s reasons by reference to this?  I would have thought in view of his Honour’s findings that this should be culled down to absolutely essential documents – reference to essential documents and some spare facts which for context are necessary.  As I said, I will come to the economic impact later.  Perhaps I should ask the Solicitor for Western Australia.  Mr Solicitor?

MR THOMSON:   Thank you, your Honour.  Mr Dunning is correct that this was the document that was put – or might be the document that was put before the Federal Court.  It was updated to deal with all the matters by the – by the end of the evidence on 30 July.  It was provided on 7 August to the Federal Court.  Part of the difficulty in this case, I suppose, is this, that the only relief which is sought is relief at the time of….. 

There may be – you will see that in the minutes of directions that there is a provision for agreed amendments to the special case because, as you would appreciate, there are things that continue to change and to the extent that there are changes, it might have some impact upon the way in which the High Court deals with the matters.

HER HONOUR:   Mr Solicitor, I do not have any difficulty with – well, I put to one side what might be made of facts subsequent to his Honour’s, but I can understand that there might be some facts which have occurred subsequently which might need to be placed before this Court.  But it is the sheer volume of these facts which would seem to me to be somewhat overtaken by his Honour’s findings.

I mean, there would obviously be some aspects of the special case which should remain, but the large detail of facts which his Honour has dealt with and made findings really should come out, should they not, otherwise you are going to be asking members of this Court to go through with a fine toothcomb 98‑plus pages.

MR THOMSON:   It was not intended that that should be so, but to the extent that there might be any changes of factual material and to the extent that the Court needs to understand the basis for what was the decision of Justice Rangiah, we did not wish to create a problem.  But I can understand what your Honour has said.

HER HONOUR:   Can I just ask you this?  I take it that no party is suggesting that this Court review Justice Rangiah’s findings?

MR THOMSON:   No, not on our side at least.

HER HONOUR:   I do not understand there to be a suggestion that the Court, for the purpose of understanding his Honour’s findings would need to have a document containing all of these facts for some other purpose.  I would assume that his Honour’s findings speak for themselves.

MR THOMSON:   Yes, I think that is correct, your Honour.  It is slightly difficulty to predict how things might change between now and the actual hearing in the High Court and so that was the only reason why it is there, but we can certainly perform a process of culling and then if there are particular matters that then need to be reinserted or drawn to the Court’s attention because of changes that have happened, then that can certainly happen. 

But the reason it is in there is because the Court might want to understand the factual basis and then see how it might have changed according to whatever does happen between now and the hearing because, of course, there is some uncertainty about how matters may play out between now and then in terms of the development or changes in the strength of the disease and so forth.  But we are very happy to perform that task.  I should also mention one other matter ‑ ‑ ‑

HER HONOUR:   Mr Solicitor, if I thought there was likely to be some need – and I just do not understand this at the moment – for the Court to refer to all of these facts to, as I have said, comprehend what was before his Honour to explicate aspects of his Honours reasoning, I would suggest that there be created a separate document which is just simply called “Agreed Facts Placed before His Honour”.  If that is the case – if that is necessary I would need to hear from the parties before we have a book which tempts people to start disputing facts appearing in reasons for judgment.  I would not want to encourage anyone to do that.

But it seems to me that the special case should be pared right back to what a special case ought to look like when facts have been found.  I am sorry, I think you were going on to say something and I interrupted you, Mr Solicitor.

MR THOMSON:   The only other thing I was going to mention – and I only learned of this yesterday and we have drawn our friend’s attention to it this morning – is that, as I understand it, the intention to repeal and then republish in a consolidated form the directions that have been the subject of the hearing and that is to enable ease of access rather than for members of the public to have to try and work out all of the amendments, and there might be some minor further amendments to those directions but I do not think, from what I understand, that they will be material.

But I thought I should mention that that process might happen.  We are perfectly happy for the changes to be substituted into the draft special case or into the pleadings but we will not take any point, of course, about the fact that it is being repealed and then replaced with a consolidated form of directions but that was something that I thought the Court should be aware of.

HER HONOUR:   I can understand that the directions in their full form should be before the Court, but I imagine that would be as a bundle to which reference is made in the special case, as an annexure or some volume to which reference is made in the special case.

MR THOMSON:   Yes, I think my point is that at the moment we have a set of directions which has been amended five or six times ‑ ‑ ‑

HER HONOUR:   Yes.

MR THOMSON:   ‑ ‑ ‑ and that is the basis of the pleading.  A whole lot of those will, I think, be revoked – at least that is what I have been informed, and ‑ ‑ ‑

HER HONOUR:   I see.  I did not understand that.

MR THOMSON:   The…..ones will be in materially the same form, subject to some further minor amendments which would have happened anyway.

HER HONOUR:   Is that going to affect the reasons and findings of Justice Rangiah?

MR THOMSON:   Well, we do not think so because they would be in exactly the same form, subject to those minor amendments which I think will relate to exemptions.  But, as I say, I have only learned of this very recently.  There was a question, I think, raised about whether in fact it is a new cause of action according to the Eshelby principles.  We would not take any point about that and we think that it will be exactly the same as the basis for Justice Rangiah’s decision.

HER HONOUR:   For comparison you would need to have the directions that were before his Honour before this Court.

MR THOMSON:   I think that is right.  We actually supplied his Honour with a consolidated form of the directions, incorporating all of the amendments, and what is now proposed is that they, in effect, be republished as the consolidated form but they will be called directions No 2 as opposed to the former directions with all of the amendments to them.

HER HONOUR:   While I am speaking to you, what is proposed about the pleadings - are they going to be updated?

MR THOMSON:   Well, I think they would need to be updated to deal with at least that point, and there had been some suggestions made about matters that would need to be updated in the pleadings when the matter was before the Federal Court.  There was agreement between the parties that the proposed updates to the pleadings did not need to occur before Justice Rangiah because everyone would proceed upon the special case and the agreed facts but that the pleadings would need to be updated when it came back to the High Court because it is the High Court that has control of the pleadings.

HER HONOUR:   Yes.  I would want to see any substantive changes to the pleadings to ensure that there were not further facts necessary for this Court.  So I would expect the parties ‑ if there were more than just an updating and there were new facts introduced, that the matter was brought back before me for leave to amend.

MR THOMSON:   Yes, because, as I understand, everyone has made decisions about the running of this case upon the basis of the factual matters that have been agreed or have been disputed and resolved by his Honour Justice Rangiah, and if there is to be anything further then it would – apart from factual updating which all the parties have accepted should occur – then clearly it would need something more from the High Court.

HER HONOUR:   Yes.  All right, could I then ask you, Mr Dunning, the matters dealt with under the topic “Economic impact” in the special case, are these agreed facts the whole of the facts that are going to be placed before this Court?

MR DUNNING:   Your Honour, subject only to any updates that are received in particular in relation to the economic position – sorry, subject only to updates consistent with the evidence that is presently there.  So, to the extent that it refers to existing reports, to the extent they are updated by the time of trial, it would be updated to that extent.  But beyond that the scope that is identified there is the evidence relied upon, or the agreed facts relied upon.

HER HONOUR:   I see.

MR DUNNING:   Your Honour, perhaps I can give you an example of what I think is proposed.  If you look at paragraph 229 on page 93 ‑ ‑ ‑

HER HONOUR:   I am sorry, what paragraph was that?

MR DUNNING:   Paragraph 229 on page 93.

HER HONOUR:   Yes.

MR DUNNING:   There is there reference to an estimated contraction in WA’s gross State product in the first two quarters of 2020.  I think that the Court could be supplied now with what actually happened.

HER HONOUR:   Right.

MR DUNNING:   And a further update as to whatever else is estimated.

HER HONOUR:   Yes, I see.  Well, otherwise the proposed minutes of directions are intended to take the parties to the November sittings for a hearing.

MR DUNNING:   That is correct, your Honour.

HER HONOUR:   The only question arising out of my discussion with you to this point is whether the matter should come back before me to review the special case at some point.

MR DUNNING:   Naturally, we are in your Honour’s hands as to what most convenient.  Given the importance of it, your Honour, we would respectfully submit yes, as long as that could be accommodated by your Honour.

HER HONOUR:   When would it be convenient for the parties – how long would it take for this culling process to be undertaken?

MR DUNNING:   Your Honour, would a directions hearing the week after next – so it would give us all of next week to resolve that issue – resolve might be the wrong word – to agree that issue.  Say that we had a directions hearing the week after next, would that be suitable?

HER HONOUR:   Yes, that should be suitable.  Mr Solicitor, is that going to provide enough time, do you think?

MR THOMSON:   I think that it ought to do so.  If the parties have all of next week for work on it, I would be hopeful that – or I would be very much hopeful that it would be all sorted out and pared back.

HER HONOUR:   All right.  We will perhaps work towards a further short directions hearing towards the end of the week after next.

MR THOMSON:   Yes.

HER HONOUR:   Almost two weeks away.  I will have the parties contacted with the date and time.  Yes, I think otherwise the directions are in order.  Time for hearing ‑ I see the number of interveners – is a day and a half realistic, Mr Dunning?

MR DUNNING:   Your Honour, we had thought a day and a half was realistic, but perhaps on reflection two days, your Honour.  It is a bit hard to know without knowing what position the interveners – to what extent the interveners are going to be of interest.  Obviously, we have lost one intervener so far.

HER HONOUR:   Well, if we put the interveners to one side what would be your estimate of how long your arguments are going to take, combined?

MR DUNNING:   Your Honour, I had in mind that I would be all morning of the first day and maybe half an hour to an hour into the afternoon.

HER HONOUR:   In reply?  I see, morning to the afternoon.

MR DUNNING:   Yes.

HER HONOUR:   Well, Mr Solicitor, that would probably mean that we would run into the second day just with the arguments of the parties.

MR THOMSON:   I agree with that.  I would have thought that at least two days.  I would think that I would probably be about the same period of time as Mr Dunning has mentioned.  Clearly, this is the first case on interstate intercourse and there are very significant issues involved.  It may depend upon the position of the interveners to some extent, but given that it is perhaps one of the most significant cases on section 92 for some time, one might anticipate that there would be a variety of different views that might be ventilated.

HER HONOUR:   Yes.  All right, well, we might work on the theory of two days then.  I will have it noted accordingly.  There will be directions made in terms of the agreed proposed minutes of directions provided by the parties and, as I have said, I will have the parties contacted about that further short directions just to discuss the special case itself.

MR THOMSON:   Your Honour, does that mean that we are then still going to be filing and serving the special case on 11 September prior to the directions hearing, or is it your view that we should wait until after the directions hearing to do that to make sure that it is consistent with what your Honour has in mind?

HER HONOUR:   Thank you for drawing that to my attention.  Why do we not perhaps amend paragraph 1 of the proposed minutes of directions to say:  “Two days before the next directions hearing the plaintiffs file and serve a further draft special case”, and then we can discuss it at the directions hearing and effectively see whether it is in a state to be settled?

MR THOMSON:   Thank you.  So could we make consequential amendments to paragraph 2 in the same terms, and paragraph 4 perhaps that should read “21 September”?

HER HONOUR:   Yes, I think that is right.

MR THOMSON:   I was just going to suggest that we substitute in paragraph 4, 21 September rather than ‑ ‑ ‑

HER HONOUR:   Yes, I agree.  Mr Dunning, perhaps you could have amended minutes of directions for the purposes of an order provided to the Court if not this afternoon, first thing Monday?

MR DUNNING:   Certainly, your Honour, we will show it to our friends first of all.

HER HONOUR:   Yes, thank you.

MR DUNNING:   Your Honour, our learned friends in their written submission raise certain contempt proceedings that have been commenced.  We had understood the Court was not minded to deal with that this afternoon.

HER HONOUR:   No, I do not propose to deal with them at the same – as if they are inextricably attached to these proceedings.  They are not.  I understand that they were filed within these proceedings because they had to be attached to a current proceeding before the Court because of their nature.

MR DUNNING:   That is correct.

HER HONOUR:   Otherwise, I propose to deal with – I will manage the directions of those proceedings, but they will be dealt with separately.

MR DUNNING:   Yes.

HER HONOUR:   I think I am yet to provide a date for the first directions.

MR DUNNING:   Yes, very good.  In that regard, the only reason we did commence them within the proceedings was that was our understanding of the operation of the rules.

HER HONOUR:   Yes, that is right.

MR DUNNING:   Yes.  Thank you, Chief Justice.

HER HONOUR:   Thank you, gentlemen.

MR THOMSON:   Your Honour, could I raise just one point about paragraph 3 of the proposed orders?  Is it anticipated then that the order should be that the sittings – that the hearing will be in November 2020, or in November 2020 alternatively on a date to be set at the convenience of the Court?

HER HONOUR:   Well, I think it should remain in the form it is in but with the understanding that if the directions – the dates for the steps are maintained by the parties the likelihood is that it will be set down for the November sittings.

MR THOMSON:   Thank you, your Honour.

HER HONOUR:   Of course, you will be notified well in advance of that.  Thank you, gentlemen, the Court will now adjourn.

AT 3.27 PM THE MATTER WAS ADJOURNED