Palmer & Anor v The State of Western Australia & Anor

[2020] HCATrans 62

[2020] HCATrans 062

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 THURSDAY, 28 MAY 2020, AT 2.15 PM

Copyright in the High Court of Australia

MR P.J. DUNNING, QC:   May it please the Court, 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, with MR J.D. BERSON I appear on behalf of the two defendants.  (instructed by State Solicitor’s Office WA)

HER HONOUR:   I understand that there has been some substantial agreement with respect to a timetable and directions.

MR DUNNING:   Correct, Chief Justice.  In fact, subject only to the Court’s convenience the parties are agreed to the variation that Western Australia proposed at the end of its written submissions.

HER HONOUR:   I see.  I will come back to that.  There are some aspects I would appreciate some clarification upon.

MR DUNNING:   Of course.

HER HONOUR:   Mr Dunning, in relation to the plaintiffs’ pleadings, in the section 92 case, both elements are relied upon in the statement of claim, that is the trade and commerce element and the intercourse or restriction of movement?

MR DUNNING:   That is correct.

HER HONOUR:   What is not entirely clear to me is what effects are claimed to follow from these?  In relation to the trade and commerce element I take it it is not suggested there is a protectionist purpose behind the directions?

MR DUNNING:   No, it is not.

HER HONOUR:   So how is it proposed to make out that contravention?

MR DUNNING:   Sorry, can I go back a moment?  It has a protectionist – it has practical application.  It will have a protectionist effect.

HER HONOUR:   Effect.

MR DUNNING:   Yes.  I can elaborate on that if you wish me to.

HER HONOUR:   Yes, because I got the notion that there was just – harm generally is what is relied upon.

MR DUNNING:   No.  In relation to the trade and commerce component, businesses that have their head offices or are managed from outside Western Australia will be commercially disadvantaged to those that have their senior management inside Western Australia would be the point in its most summary form.

HER HONOUR:   There is not much in the way of facts pleaded at this point.  I realise things have moved rather quickly.

MR DUNNING:   Yes.

HER HONOUR:   But that would have to take account of the fact that we are in a somewhat digital age at the moment.

MR DUNNING:   It would and that would be a relevant consideration.

HER HONOUR:   All right.  We will come back to the question of particulars.  In relation to the freedom of movement element it would appear that the plaintiffs do not rely upon there being a general guarantee of freedom of movement but rather a personal right.  Am I misunderstanding the pleading?

MR DUNNING:   We would submit that paragraph 26 would in fact provide a freedom of movement allegation.

HER HONOUR:   But what is being relied upon?  Is it of the nature of a personal right or a constitutional guarantee of freedom of movement more generally?  What is the ‑ ‑ ‑

MR DUNNING:   The latter.

HER HONOUR:   The latter.  I think that might need to be clarified in a pleading then and again some particulars.  In either case I take it that it is accepted that the question whether the continuation of the directions made by the Commissioner – there is a question of whether they are reasonably necessary or proportionate?

MR DUNNING:   Yes.

HER HONOUR:   That is going to loom large perhaps in the context of this case.

MR DUNNING:   Yes.

HER HONOUR:   Hence the concern about the facts as in the discussions thus far I take it between the parties.

MR DUNNING:   Correct, your Honour, yes.

HER HONOUR:   I will speak to the defendants about that.  I suppose the real question in relation to how far the directions proceed will be whether or not the facts in relation to effects that you have spoken of and in relation to reasonable necessity or proportionality of the directions, whether the facts relevant to those can be contained and at the same time be sufficient for the Court to be able to determine this.

MR DUNNING:   I understand that, Chief Justice.  There has to be a stable factual basis from which the Court can deal with the matter.  I have developed that argument if you would ‑ ‑ ‑

HER HONOUR:   Yes, thank you.

MR DUNNING:   Can I take your Honour, please, to our learned friend’s written submissions that you were sent this morning.  Can I ask your Honour, please, to go to paragraph 11 on page 2?  Now, as I apprehend our learned friend’s position they are the sorts of factual matters that they would want to call in aid of the direction – we understand that – and, in our submission, they are susceptible of being formulated into a special case because in the end they will come from the ‑ ‑ ‑

HER HONOUR:   The statistics.

MR DUNNING:   Correct.

HER HONOUR:   A combination of statistics and I do not know – opinions about epidemiological opinion?

MR DUNNING:   Correct, but they are going to come from the same sorts of reliable sources that we have identified – if we may say, the shorthand expression of “statistics” captures what they really are.  They are statistics informed by a short narrative by reputable sources to, for example, the number of new COVID cases overnight in a particular jurisdiction – or the number of active cases.

HER HONOUR:   But I suppose a question – it is early days, but a question may be what inferences the Court is asked to draw from them.

MR DUNNING:   Yes.

HER HONOUR:   Itself not being expert in these matters.

MR DUNNING:   That is so.

HER HONOUR:   Something that the parties will have to grapple with.

MR DUNNING:   Indeed, and the person who takes, in a sense, the biggest risk on that is the plaintiff because if we do not produce a satisfactory factual basis from which to invite your Honours to come to a conclusion that, for example, section 92 was breached well the case will fail.

HER HONOUR:   This might be a little early for you to comment upon this, but is the thrust of the plaintiffs’ case going to be that there was an over‑response?

MR DUNNING:   There is an over‑response.

HER HONOUR:   There is an over‑response.  Yes.  We live in the moment.

MR DUNNING:   We do live in the moment, Chief Justice.

HER HONOUR:   Because the allegation is the continuation of the effect so it will – the point of which the Court will be concerned will in fact be the time of either hearing or determination of ‑ ‑ ‑

MR DUNNING:   That is correct – the time of hearing.  We have styled the statement of claim that way and that is why we have expressly said it is not a relevant question as to whether the direction was lawful at the time originally made when the state of emergency was first declared, simply because it is not a necessary feature of our case and therefore the inquiry is unnecessary.

HER HONOUR:   In relation to the defendants’ revisions to the initial draft orders it is of course not usual to proceed both by way of pleadings and then straight into a special case.  We usually pause to see what factual issues there are in the pleadings before we determine to proceed, but I take it that momentum is required.

MR DUNNING:   It is.  It is a classic case where if the matter could not be heard promptly the utility of it may go out.  We were content not to have pleadings and simply go by way of a special case.  Western Australia have indicated they think pleadings are of assistance.  Obviously we want to be co‑operative so we are simply happy to go along with that.

HER HONOUR:   I might take up a few matters with the Solicitor‑General.

MR DUNNING:   Just before your Honour does, can I just go back to an answer I gave your Honour a little earlier and that is in relation to the nature of the section 92 right?

HER HONOUR:   Yes.

MR DUNNING:   I have not, in the time available ‑ ‑ ‑

HER HONOUR:   This is the intercourse element?

MR DUNNING:   The intercourse element, yes – to properly investigate whether it might be characterised as a personal right.

HER HONOUR:   The trade and commerce element you would not suggest took the nature of a personal right.

MR DUNNING:   No, and that is why ‑ ‑ ‑

HER HONOUR:   It would be giving the intercourse limb a different operation then.

MR DUNNING:   I take the force of your Honour’s intimation and I suspect that is where it would land.  So I would not want to depart from the answer I gave your Honour but ‑ ‑ ‑

HER HONOUR:   It is a matter for you to consider because as I say I think some further work needs to be done on the statement of claim perhaps revisiting that question and some further particulars.

MR DUNNING:   Yes.

HER HONOUR:   They will need to be done fairly promptly if the defendants are to plead by early next week.

MR DUNNING:   I understand that, Chief Justice.

HER HONOUR:   Thank you.

MR DUNNING:   Thank you.

HER HONOUR:   Mr Solicitor.

MR THOMSON:   Chief Justice.

HER HONOUR:   As I have indicated to Mr Dunning it is not usual a course to proceed by way of pleadings and straight into a special case, but I understand the course that the parties are proposing.  I can certainly see the force of a need for a defence in this case to sharpen the focus on the factual issues and not the least because you would be taking the running, of course, in relation to the reasonable necessity requirement, would you not?

MR THOMSON:   Yes, that is exactly right.  It was not quite accurate for my friend to say that the plaintiffs are at the greatest risk because the establishment of the constitutional facts related to the reasonableness of the measures is upon the defendants in this case because if we do not manage to establish that constitutional fact then it will be said against us that the validity of the measure has not been established. 

So that is why we will have some significant effort in relation to that and I should say that while a lot of the facts that are mentioned in paragraph 11 of our submissions are matters of statistical knowledge, the last aspect of the facts relates to the spread and transmission of COVID‑19 and that will require evidence about a number of different things and some of those things may not be capable of statistical quantification. 

It will require, I suspect, evidence concerning what can be loosely termed as “isolation measures”, that is measures such as having hard borders or quarantines and other things that may be termed “containment measures”, that is to say things like social distancing and hand washing and so forth.  The question is the interaction between those two types of measures and how they affect the transmission of COVID‑19 and if you relax one sort of measure or you remove one sort of measure what the effect would be upon the risk of transmission.

HER HONOUR:   Are you in a position to say whether or not the evidence of which you there speak is going to be presented to the Court as a number of choices open to the defendant, or are you contemplating putting on opinion evidence or a combination of both?

MR THOMSON:   It may be a combination of both and that might depend upon what can and cannot be agreed for the purposes of a special case.  The reason why it is slightly unusual to move so fast from the pleadings to the special case is because the State clearly does not want to be accused of dragging its heels or anything of that nature.  But there is the ability, if the special case cannot be agreed because there are fundamental differences, for the matter to come back before the Court and for the Court to then work out how those particular matters of constitutional facts should be proved.  Ultimately if the matters of fact require it, it might be that there needs to be a trial of some description in respect of opinion evidence.

HER HONOUR:   Yes.  Yes, I see.  You have heard my comments to Mr Dunning about the need for further particularisation of the statement of claim.  I take it you have no objection to my proposed course?

MR THOMSON:   Certainly no objection and we would point out that particular (b) to paragraph 26 expressly states that freedom of interstate intercourse is a personal right.

HER HONOUR:   Yes, I was ‑ ‑ ‑

MR THOMSON:   Yes.  If Mr Dunning is no longer maintaining that, it would obviously be quite helpful for us to appreciate that.

HER HONOUR:   Well, I would not hold him to it since I have put him on the spot to comment upon it today, but he certainly will consider his position – his client’s position in relation to it.  I could ‑ ‑ ‑

MR THOMSON:   Yes, and ‑ ‑ ‑

HER HONOUR:   Yes, Mr Solicitor.

MR THOMSON:   I apologise for interrupting.  All I was going to say is that if there is some additional time that is required for Mr Dunning to provide the particulars, and we can see the merit of that in the circumstances of understanding what particular effects are said to flow, then while we have already commenced preparation of our defence as you would expect and gathering together the material, it may be that it is optimistic to think that Tuesday next week is an appropriate day for the purposes of filing a defence.  Of course, we will work as fast as we can at every point.

HER HONOUR:   I was rather hoping Mr Dunning would be able to provide them by 4 o’clock tomorrow afternoon.

MR DUNNING:   We will.  Thank you, your Honour.

HER HONOUR:   So there does not seem to be an issue there.  I can indicate to the parties that if the matter proceeds according to the timetable and there is no problem with the facts – it is able to proceed upon the basis of statement of agreed facts – that the matter could be heard in early July.  I will not give dates at this point, though, because it is highly provisional on whether or not those facts can be settled and in a way sufficient for the Court meaningfully to be able to adjudicate upon the matter.  That is, of course, a question that would need to be considered on 10 June when we know where we stand with the facts, which is the next directions hearing according to your timetable.

MR THOMSON:   Yes, one matter that has been suggested to me about facts – and I am not sure that I agree with it – is this and that is that it may be that the facts can be – or the factual substratum can be properly stated by saying that various people believe things but I think in our view it actually has to be accepted as a fact correctly, not just simply that somebody believes it, in order for the Court to be able to act upon it as a constitutional fact.

HER HONOUR:   Yes.  At this point I will leave the parties to tussle with that.  Obviously the question whether or not belief is sufficient as a fact depends very much upon the nature of the constitutional fact which we are concerned with.

MR THOMSON:   Yes.

HER HONOUR:   We might need to have a discussion about that at the next directions hearing but certainly the general position usually is that the fact must be a fact that can be agreed as such for it to be useful to the Court.

MR THOMSON:   I am grateful for that indication.

HER HONOUR:   All right.  There are a couple of amendments that are necessary to the defendant’s revisions to the directions.  At paragraph 2, I think we will split into 2(a) and 2(a) will be an order that the plaintiffs file and serve particulars of the alleged contraventions of section 92 and of the application of section 109 by 4.00 pm on 29 May and the existing paragraph 2 will become 2(b).

Paragraph 5 is a little curious, gentlemen.  The Court is, of course, not hearing special leave.  I take it that the purpose of paragraph 5 is simply to have Part 44 of the Rules apply.  So it would seem to me that all that needs to be put in paragraph 5 is that “Part 44 of the High Court Rules applies with the following variations” and then the paragraphs following can be renumbered.  There needs to be inserted, I think, before that paragraph 5 provision for the filing of a special case book as such, which would be the special case together with the pleadings and any orders, and for the parties to be able to cross‑reference in their submissions.  That would need to be filed, I would have thought, before 12 June, therefore on 11 June so a paragraph to that effect would need to be inserted.

The existing paragraph 11 as I have said I am prepared to indicate that if the timetable can be held, the Court should be in a position to hear the matter in early July, but I will not make an order to that effect today.  Any indication of the length of time – are we looking at a two‑day hearing if the matter proceeds in July, Mr Dunning?

MR DUNNING:   Assuming there are interventions, which I suspect there will be.

HER HONOUR:   Which you can assume I would imagine.

MR DUNNING:   I would say yes, two days.

HER HONOUR:   Would you agree with that, Mr Solicitor?

MR THOMSON:   Yes, I would.

HER HONOUR:   All right.  With those amendments there will be orders in those terms and the matter listed for further directions on 10 June, Eastern Standard Time, at 2.15 pm.

MR DUNNING:   Can I raise just two other matters?

HER HONOUR:   Yes.

MR DUNNING:   In relation to the paragraph numbering, are we free – we do not have to make it 4(a), I take it ‑ ‑ ‑

HER HONOUR:   No, you can – as long as the general scheme is there.

MR DUNNING:   Certainly.  A slightly more substantive matter – it is proper, I think, that I inform the Court that I was given instructions earlier today to commence like proceedings against the State of Queensland in respect of the Queensland border protection zone.

HER HONOUR:   This is the tourism operators, is it?  This is Mr Palmer?

MR DUNNING:   This is Mr Palmer.

HER HONOUR:   I see.  They are separate entities.

MR DUNNING:   Yes. 

HER HONOUR:   Yes.

MR DUNNING:   It just seemed to be appropriate that I should at least tell your Honour that.  Obviously we will be mindful of the directions that have been made here in any dealings we have with Queensland and I let the Queensland Solicitor know just before I came over.

HER HONOUR:   But how does the proposed proceeding in relation to Queensland operate?  The West Australian one is effectively an inability to enter the State.  How does it work in relation to Queensland?

MR DUNNING:   In relation to Queensland, this might be a slightly imperfect description, but apart from Queensland residents or persons moving to come to reside in Queensland it also operates as a prevention of crossing the border, subject to a series of exceptions in relation to ‑ ‑ ‑

HER HONOUR:   But how does that affect Mr Palmer?

MR DUNNING:   Because it affects his – sorry, Mineralogy was really who I was referring to, who runs businesses both in Queensland and Western Australia and is impaired by the capacity of it to transfer its staff in the way that it would wish to and the way it ordinarily had prior to the imposition of these restrictions.

HER HONOUR:   You will need to consider standing.

MR DUNNING:   I will.

HER HONOUR:   Is it hoped that this will somehow dovetail with the West Australian – the existing matter?

MR DUNNING:   Hoped – I would not put it any higher than hoped, but yes, certainly hope that it would.  We would do our bit to facilitate that being possible but naturally we are in the hands of the Court and also ‑ ‑ ‑

HER HONOUR:   Questions of fact.

MR DUNNING:   Correct.

HER HONOUR:   All right, yes.  Thank you.  I will let that take its course, as they say.

The Court will now adjourn.

AT 2.37 PM THE MATTER WAS ADJOURNED