Palmer & Anor v The State of Western Australia & Anor

[2020] HCATrans 108

[2020] HCATrans 108

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 LINK TO PERTH

ON WEDNESDAY, 12 AUGUST 2020, AT 1.16 PM

Copyright in the High Court of Australia

MR P.J DUNNING,QC:   May it please the Court, my name is Dunning.  I appear with my learned friends, DR R. SCHEELINGS and MR P.J. WARD, for the first and second plaintiffs.  (instructed by Jonathan Shaw)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia:  May it please the Court, Thomson, with MR J.D. BERSON, for the defendants.  (instructed by Robert Beattie)

HER HONOUR:   Mr Dunning, this application is made to obtain a hearing date in September, despite the fact that you do not have any judgment from the Federal Court on the remitted matter. 

MR DUNNING:   Yes, your Honour, that is correct.  We have sought to get an update from Justice Rangiah as to a likely date and we at once accept we are in your Honour’s hands as to when the matter might be listed for a hearing.  Your Honour gave us liberty to apply and we thought it appropriate to move on that liberty to apply once the trial itself was concluded.

We appreciate September has been filled and we appreciate that the judgment has not been delivered, but your Honour will I think have seen the email from Justice Rangiah’s associate indicating that his Honour expects to have completed his consideration of the matter by about 24 August 2020.  We have provided a revised timetable that would, nonetheless, see the matter able to be heard in the second week of the September sittings, were that otherwise possible, albeit I accept a very contracted timetable.

HER HONOUR:   Well, there are two things that might be noted immediately, Mr Dunning.  The first is that, as your solicitors are well aware, the September sittings has been listed and parties have been given dates for both weeks, and the Court is, at the moment, in the process of settling the October sittings.

MR DUNNING:   Yes.

HER HONOUR:   In relation to the principal basis for urgency, as I understand it, it is because if the matter is put off the facts which will be the basis for determination will be stale.  And I take it that has regard to the fact that things are rather fluid at the moment?

MR DUNNING:   It does, Chief Justice, there is a second basis of urgency we point to as well, but that is correct.

HER HONOUR:   Is the second basis of urgency the personal circumstances and the business interests of Mr Palmer and Mineralogy?

MR DUNNING:   That is correct, your Honour.

HER HONOUR:   I will come back to that in a moment.  But in relation to the principal reason, if it is said that a date sooner rather than later is necessary because the facts to be determined by Justice Rangiah might be out of date, that tends to focus attention rather than detract from the need to see what are in Justice Rangiah’s findings before the matter is actually listed.  That would, of course, be the normal process.

MR DUNNING:   Yes, Chief Justice, we accept that.  In our submission, there is a desirability in the matter being heard as close to the determination of those facts, given they are fluid, as possible.  I cannot put the submission any higher than that, but there is a desirability in – given events are moving – the desirability of the Court coming to decide the case against the circumstances that remain current. 

HER HONOUR:   Given the argument that you actually put forward, I think it tends to highlight the need to have a close look at the facts and hear from the parties about whether or not they will still be current in any event when they are made to enable a hearing.  I appreciate matters are very difficult but it is – and it is hard to pick a time when circumstances surrounding the various restrictions taken are stable at a particular time, but that is as may be, it does not help this Court try to set aside two days to accommodate this matter.

MR DUNNING:   Yes, Chief Justice.  The best answer I can give to that, which I hope is responsive and helpful, is this.  We sought to relist it to achieve the currency that we thought was desirable and have proposed a timetable that would allow the parties to have contemplated his Honour’s findings.  So the timetable we have would only give us a day to incorporate them into otherwise submissions that would need to be ready to go.  But the timetable we had in mind was one that would see both sides detail the facts in their written submissions because we accepted that was something that would be essential – it was important enough for the Court to remit it, plainly it would be important that it be dealt with carefully in the written submissions. 

HER HONOUR:   And this matter would need two days, would it not, of hearing?

MR DUNNING:   It would need a second day.  Whether it needed a full second day I am not sure, Chief Justice, but it certainly would go into a second day.  Sorry, I should not say certainly; you could not safely list it for one day is what I should have said.

HER HONOUR:   As I understand it there is another matter about an application for a second trial given the withdrawal – or intended withdrawal of the Commonwealth from the matter. 

MR DUNNING:   That is correct.  The application was either for a fresh trial, or that the Commonwealth withdraw its reliance upon its submissions and evidence which it ultimately did at the hearing before Justice Rangiah in that regard.  But his Honour has not given any indication, including in relation to notification we were going to bring this application, to suggest that – to indicate that he will not be delivering all of his judgment around 24 August. 

HER HONOUR:   I would certainly not wish Justice Rangiah to think that by acceding to listing this matter for directions, to have a discussion today, that this Court intends to apply or be a party to applying any pressure upon him to produce reasons earlier than he would in the normal course. 

MR DUNNING:   Your Honour, can I stress at once, we had no intention, and we would hope it would not be seen as what we are endeavouring to do ‑ ‑ ‑

HER HONOUR:   No, I do not suggest that, Mr Dunning.

MR DUNNING:   Yes.

HER HONOUR:   It is more a message to Justice Rangiah from this Court.

MR DUNNING:   Yes, I understand.  Thank you, Chief Justice.

HER HONOUR: The other matter – I said the main issue is really about the facts and whether they will be stale. But can I say in relation to your clients’ position in relation to the question of urgency, I have put aside the question of this matter – the challenges brought under the Constitution, of course, being important questions. But if one focuses just upon the urgency of the matter, having regard to personal circumstances, in the affidavit material I could not see any reference to the need for Mr Palmer or his staff to be actually physically present at any of the future hearings. And I could not see any mention of it being said that Mr Palmer has taken every step to obtain exemptions.

Now, these matters, they are not going to be determinative today.  They are not likely to be determinative today.  But in relation to any future requests to set this matter down for hearing, I think they really need to be a bit more specifically addressed in the material. 

MR DUNNING:   Certainly, your Honour.  We were trying to find a balance which, evidently, we may not have found of not turning the application into one which was too fact‑heavy.  The matters you have raised are touched upon in the first and second affidavit of Mr Shaw.  But I have heard what your Honour has said and, on any subsequent application, we would respond accordingly.

HER HONOUR:   For instance, I think there is an arbitration listed for hearing – an arbitration or a mediation.

MR DUNNING:   There is a mediation listed in October and an arbitration listed on 30 November.  Western Australia proposing to pass legislation, they announced, certainly to us for the first time yesterday ‑ ‑ ‑

HER HONOUR:   Which might affect that then.

MR DUNNING:   Yes.

HER HONOUR:   All right.  I should hear from the Solicitor‑General in relation to the application.  I have read the short written submissions that were received by the Court yesterday evening, Mr Solicitor. 

MR THOMSON:   Thank you, your Honour.  We would respectfully adopt the things that you have already said.  Can I make a couple of other points about prejudice?  The first is that – and this has been a matter of some debate between people at the Bar table – whether there is any prospect of appealing to the Full Federal Court any petition under section…..under section 44 of the Judiciary Act.  Clearly, this does not allow any timetable for that to occur. 

Can I also say that, in relation to the manner of the litigation and the staleness of it, there is this consideration?  The plaintiffs have indicated that they only seek a determination at the time of the judgment – or the hearing – in relation to the constitutionality, or otherwise, of the directions.  That has been stated in circumstances where the directions are related to what are now understood to be quite fluid circumstances and that there are actual disputes about that.

If this had been done in filing in the Federal Court to start with then it would be seized of all issues and the problem of staleness would not arise because the Federal Court could make its own orders at that particular time.  The problem that has come about, about staleness, is because these proceedings were commenced in the original jurisdiction of the High Court and the provision of the factual finding…..it from the exercise of the original jurisdiction of the High Court, as well as generated this issue of staleness.  So, in our respectful submission, it is…..because as a matter

of…..what has happened is a direct product of the way in which the plaintiffs have chosen to conduct the litigation.  But I do not have anything more to say apart from that.

HER HONOUR:   Yes, the fact that the plaintiffs are seeking to have the constitutional issues determined as at the date of the hearing or judgment in the Federal Court of course may not resolve questions of what orders which may be of utility could be made at the time that this Court delivers judgment.

MR THOMSON:   Yes.

HER HONOUR:   But then again, that raises another question of whether by the time this Court comes to hear the matter and determines it, whether the facts will have moved on again.  It is just an unfortunate aspect of all of this, but put that to one side.  Mr Dunning, I do not see that this Court can proceed to set aside two days of hearing without at least some overview of the facts as determined in the Federal Court.  I will have discussions with the Senior Registrar about whether provision might be made in the October list provisionally and only for a particular period to see whether it is possible to allow for this case coming in, but I think that is about as far as I can take it at this point.

MR DUNNING:   Thank you, your Honour.  We would be most grateful if your Honour was in a position to do that, and I have obviously taken on board the matters your Honour has raised about what you would want to see on a subsequent application.  Is there any other aspect of the facts that your Honour would want us to develop before we came back before you in relation to a further request to list?

HER HONOUR:   No, I just think that they need to be more specific and less general if we are to – if the Court is to either deny or push another party out of hearing.  They have to be much stronger than that.

MR DUNNING:   Sorry, Chief Justice, I meant to ask a different question.  That was in relation to Justice Rangiah’s facts.  So is there anything you would want us to do in relation to any exposition of that before we came back before your Honour on an application like this?

HER HONOUR:   No, not that I can think of.  Obviously both matters would need to have been resolved ‑ both matters would need to have been resolved in the Federal Court.

MR DUNNING:   Yes.

HER HONOUR:   As I have said, it may be possible to leave some gap in the October sittings, but not for too long.

MR DUNNING:   I understand, your Honour.

HER HONOUR:   So we will just have to see how things pan out.  There was an application formally filed, was there not?

MR DUNNING:   There was, your Honour, yes.

HER HONOUR:   So I will formally dismiss it.

MR DUNNING:   Thank you, your Honour.

HER HONOUR:   Yes, the application is dismissed.  I will now adjourn.

AT 1.30 PM THE MATTER WAS ADJOURNED