Palmer & Anor v The State of Western Australia & Anor; Mineralogy Pty Ltd & Anor v State of Queensland; Travel Essence Pty Ltd & Ors v Young & Anor

[2020] HCATrans 87

[2020] HCATrans 087

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

Office of the Registry
  Brisbane  No B29 of 2020

B e t w e e n -

MINERALOGY PTY LTD

First Plaintiff

DANIEL JACOBSON

Second Plaintiff

and

STATE OF QUEENSLAND

Defendant

Office of the Registry
  Sydney  No S87 of 2020

B e t w e e n -

TRAVEL ESSENCE PTY LTD ACN 143 823 590

First Plaintiff

MERMAID 007 PTY LTD ACN 621 539 295

Second Plaintiff

SUPER SERVICES GROUP PTY LTD ACN 617 650 138

Third Plaintiff

PAUL JEFFREY

Fourth Plaintiff

ZALI BURROWS

Fifth Plaintiff

and

JEANNETTE YOUNG, THE CHIEF HEALTH OFFICER FOR THE STATE OF QUEENSLAND

First Defendant

THE STATE OF QUEENSLAND

Second Defendant

Directions hearing

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO PERTH AND SYDNEY

ON FRIDAY, 12 JUNE 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, in the Palmer and Mineralogy matters for the plaintiffs.  (instructed by Jonathan Shaw)

MR G.O’L. REYNOLDS, SC:   I appear for the plaintiffs with MR R.W. HADDRICK in the Travel Essence matter.  (instructed by Mahoneys)

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 first and second defendants in the Palmer matter.  (instructed by State Solicitor’s Office WA)

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MS F.J. NAGORCKA, on behalf of the State of Queensland in those proceedings that concern it, together with the Chief Health Officer in the Travel Essence matter.  (instructed by Crown Law (Qld))

HER HONOUR:   Mr Dunning.  I will deal with the matters in the order of Palmer v Western Australia, followed by the Mineralogy matter and then Travel Essence.

MR DUNNING:   Thank you.  Your Honour, in relation to Palmer & Mineralogy v Western Australia, first of all, I read that the directions were not complied with.  In relation to the terms of the special case that has been agreed.  The only matter that is not agreed in that regard is our friends for Western Australia press for a separate hearing in relation to three matters that your Honour will have seen set out in our written submissions.

HER HONOUR:   This is in relation to Palmer v Western Australia?

MR DUNNING:   Yes.

HER HONOUR:   What about Mineralogy v Queensland?

MR DUNNING:   Sorry, my apologies.

HER HONOUR:   Perhaps if we just deal with them one by one.  It is easier – we will not get confused.

MR DUNNING:   Sorry, I apologise.  I can deal with Queensland ‑ ‑ ‑

HER HONOUR:   We will wait until we come to that.  Let us deal with Palmer v Western Australia first.  I understand that there is a problem with the facts.  I do not really understand how it could be said that a special case with all the necessary facts has been agreed if there are some facts which Western Australia says are essential to its case and they cannot be agreed.  So I do not consider the special case to be agreed at all.  That is in a complete ‑ ‑ ‑

MR DUNNING:   Yes, I understand.  We just say that the terms of the document of a special case are agreed.  Western Australia says there are three separate matters that they would wish to be sent off to a single Judge and the parties have exchanged ‑ ‑ ‑

HER HONOUR:   But they really come down to one issue, do they not, and this is the issue that has potential problems about facts in each of these cases.

MR DUNNING:   Yes.

HER HONOUR:   That is the issue which, if a prima facie case for breach of sections 92 or 117 were established in any of these cases, it would be necessary for the States to justify the measure – I will call it “border restriction” as a term that can cover the different terminology that is raised in the various cases – but if the plaintiffs got to that point it would be for the States to justify the border restrictions and, to an extent on the pleadings thus far, they seek to do so, as I apprehend it, by saying that the measures are reasonably necessary.

Notably – I will take it up with the Solicitors‑General for those States – they do not aver that there are no obvious practicable alternatives, which I thought would be an essential part of that.  In Palmer v Western Australia, as I understand the defence – it is paragraph 47(2) – says it is reasonably necessary and this is said to be deduced from the paragraphs referred to, 11 right through to 40. 

If one trawls through 11 to 40 to find out why it is said to be reasonably necessary in the sense referred to in section 92 cases, the only – I will ask the Solicitor to comment upon this shortly – paragraph 15(h) says that if the measures are not implemented, the risk of community transmission substantially increases.  I think that is the only allegation which directly connects to reasonable necessity.  There might be more nuanced ones but, in the time available, I have not been able to draw the connections and I am sure the Solicitor can explain better what the case for Western Australia is.

Then the plaintiff’s reply says the risk of community transmission can be addressed by other measures, and sets out some alternatives, which is rather like taking on the onus, I would have thought, but I understand why it was taken up in this way.  Needless to say, I think both the defence and the reply will have to be re‑pleaded, with the defence taking this up and the reply then addressing it, as it should.  Paragraph 20 in the reply says it joins issue with respect to reasonable necessity and declines to plead to what is or is not substantial and denies that there is a factual basis for the reasonable necessity for the border closures. 

Now, as I understand it, the defendant - Western Australia – seeks to prove reasonable necessity by showing that – this is from their submissions today, although it is not immediately clear to me from the pleading – they seek to prove reasonable necessity by showing that the transmission rates of infection decreased after measures were put in place, and that if they were taken away there would be more than a minimal effect upon the increasing rates of transmission.  They are the facts that they say are essential and they are the facts with which I take it you do not agree and therein lies the question.  I mean, is it the case that the plaintiffs will not agree to them?

MR DUNNING:   Your Honour, the plaintiffs will agree to any fact that can be reasonably demonstrated.  It is the way the facts are framed in WA’s submissions.  So, for example, if WA were to say, “We say as a fact that the impact of withdrawing the border restriction ‑ ‑ ‑

HER HONOUR:   That is the key.  That is the key fact, is it not?

MR DUNNING:   Yes.

HER HONOUR:   That Western Australia seeks to place its case on.  As you say, the first fact they refer to in paragraph 13(a) of the submissions that – I suppose it is a fact that there was a decrease – I do not think there is any issue between you that there was a decrease in the infection rate after the directions came into effect?

MR DUNNING:   That is correct, yes.

HER HONOUR:   I am not sure whether the plaintiffs would agree that the directions contributed, which is to say that there is a cause or a connection between the direction and the decrease.  But the key one is probably, for the future, that the removal of the directions would have – I take away the word “substantial” because I know that causes the plaintiffs problems – would have a greater than minimal effect upon the infection rate.  You say that cannot be substantiated.

MR DUNNING:   What we have invited our friends to substantiate, and they have not – what we can see is when one looks at the evidence that has been agreed and looks at the introduction of the border restriction in Western Australia and what was already a significant drop in the infection rate there and elsewhere, there does not seem to be a rational connection between the introduction of the border restriction and the drop in the rate.  The drop in the rate appears to have already commenced and commenced on its trajectory.  We would not say that you could say that there is no possibility that the border restrictions may not have had an impact and if we were presented with a fact and asked to admit it, along those lines, I do not see there would be any particular difficulty ‑ ‑ ‑

HER HONOUR:   But you would only go so far, as I understand it, to say that the decrease continued?

MR DUNNING:   Yes, and what we would compare the decrease to is the decrease in non‑border restriction States, which follows the same sharp downward trend which tends to suggest rationally that the true causal effect of the significant downward trend in Western Australia and elsewhere were matters other than border restrictions, that is States that did not have them enjoyed the same result.  Indeed, one of the States that did have border restrictions had its peak after they were introduced.

HER HONOUR:   What about the third – 13(c), the removal of them?  I think it would follow from what you say that you would not agree that there is a basis for there being the likely effect, if the border restrictions were removed.

MR DUNNING:   Your Honour is speaking of their submissions now, or the ‑ ‑ ‑

HER HONOUR:   Yes, 13(c).

MR DUNNING:   No, we would accept that there may be some effect but we have not been invited and been shown anything that would indicate how that effect might be in some way quantified.  So the only things it would quantify were the sorts of things I have outlined to you a moment ago that suggest there is not a connection to it.

HER HONOUR:   Well, if you cannot come to a conclusion on it, the Court cannot, can it?

MR DUNNING:   In our submission, the Court could because ‑ ‑ ‑

HER HONOUR:   Well, just draw any inference we like?

MR DUNNING:   No, draw an inference from the available data as to the movement of infection rates up and down ‑ ‑ ‑

HER HONOUR:   Mr Dunning, we are not epidemiologists.

MR DUNNING:   No, but the State ‑ ‑ ‑

HER HONOUR:   I mean, seriously, what is the Court to do with all of this data?

MR DUNNING:   Well, make the same assessment – sorry, not make the same assessment – determine whether the assessment the Executive made and acted upon in imposing the border restrictions ‑ ‑ ‑

HER HONOUR:   Could you explain to me, say by reference to the facts in the special case, how the Court would go about that?

MR DUNNING:   Yes, certainly.

HER HONOUR:   What would be the process of reasoning for which you would contend, is really what I am asking?

MR DUNNING:   The process of reasoning for which we would contend is accepting – I will not rehearse them all now, but accepting difficulties in relation to COVID, the seriousness of it and its capacity for rapid spread, as we have to accept all of those matters, to then say well, in terms of the time for the hearing, is the measure one that offends the direction, one that offends section 92 or not, to look at the then prevailing circumstances in terms of infection rates, where they have been, what they have dropped to, what were the different measures used in different jurisdictions, was there a perceptible difference between the drop in infection rates achieved in one jurisdiction compared to the drop in infection rates in another because that is ultimately the surest guide to ‑ ‑ ‑

HER HONOUR:   How do we know that?  What factors are relevant to how one reads the data in each State?  Perhaps - given that this issue the onus lies on the States, I should ask the Solicitor‑General some questions.

MR DUNNING:   Yes, your Honour.

HER HONOUR:   Solicitor for Western Australia.  Could we just deal first with the question of the pleadings, Mr Solicitor?  You have heard me say to Mr Dunning that I would have thought an allegation that the measures are reasonably necessary would require also an allegation that there are no obvious practicable alternatives.  Do you disagree with that?

MR THOMSON:   No, I do not disagree with that, except can I explain how the pleadings have raised that question already, as we see it.

HER HONOUR:   Yes, it seems to be raised in the reply whereas it should be raised in the defence.  Otherwise we do not get Western Australia actually dealing with it unless we have an old‑fashioned rejoinder.

MR THOMSON:   Yes, I was about to say that would be the appropriate course depending on the forensic nature of the question, but the way the question has evolved is this.  As we understand it, we say it was reasonably necessary to have the border restrictions in place.  In response they say in the reply, no, it was not necessary, reasonably or otherwise, to have those restrictions in place for the reason that the other containment measures were already in place and were adequate to deal with this. 

So they do not say that there was some other intermediate form of restriction that could have been adopted between the existing restrictions and the border restriction.  So, forensically, the choice for the Court is simply whether it was reasonably necessary to have the border restrictions in place or whether the transmission of the SARS‑CoV‑2 virus and COVID‑19 was adequately dealt with by the existing containment restrictions.  So if they had said ‑ ‑ ‑

HER HONOUR:   In effect, they are saying that the existing measures are sufficient.

MR THOMSON:   Yes.

HER HONOUR:   In that sense they stand as an alternative to – I will take the use of the word “alternative” – they are saying that it is not necessary because they are sufficient.

MR THOMSON:   Yes, that is precisely right.  So, forensically, the question has been exposed.  If they had pointed to some other intermediate measure then we would have put on a rejoinder or amended our defence to say that that was not a necessary – I am sorry, that was not an adequate measure itself.  We accept as a matter of law that the Court must find that ‑ ‑ ‑

HER HONOUR:   But in your defence would – I mean, to adapt the usual terminology to the circumstances of this case, would you not have to say in your defence that there were no obvious other measures which are sufficient to achieve the purpose of the directions?

MR THOMSON:   We are certainly happy to amend our defence to make such an allegation.

HER HONOUR:   Then that way we keep the onus where it should be and the plaintiff can then reply to it properly.

MR THOMSON:   Yes.  It might be that we choose to make that as an alternative allegation, if it pleases the Court, for this reason, that the concept of “intercourse” might have a different test applied to it from “trade or commerce” and it may simply be – as I understand it, the law is a little bit unsettled in this area.

HER HONOUR:   Yes.

MR THOMSON:   It may just simply be that we have to show that it is a reasonably necessary measure without necessarily showing that additional point.  That is why it is pleaded in the way that it is.  If there had been another ‑ ‑ ‑

HER HONOUR:   Does not reasonable necessity usually comprehend that there is nothing else that can be done – reasonably done?

MR THOMSON:   I accept that, your Honour ‑ ‑ ‑

HER HONOUR:   Some lesser measure that does not have such a severe effect.  That is what we are looking for.

MR THOMSON:   Yes, and I would certainly accept your Honour’s characterisation in respect of a lesser measure if there was a zone of measures where there were three or four different measures and one could not be described as a lesser measure, but a different measure then perhaps it is a matter for – or a legislative choice as to which of those measures is adopted.

HER HONOUR:   That is right.  The authorities on freedom of information, which we are applying by analogy here, and the section 92 cases up to this point usually look to a measure having a less severe effect.

MR THOMSON:   Yes, and it was really having in mind that question and then looking to see what was pleaded by way of a response in the reply that led to the way the pleadings have developed.  We are perfectly happy to amend our defence to make the allegation that your Honour has mentioned but ‑ ‑ ‑

HER HONOUR:   If you are alleging that it is reasonably necessary, do you not have to particularise that in some way so that it is understood what your case is?

MR THOMSON:   We had hoped that those particulars were set out in paragraph 47, and there are some particulars given under the heading “Particulars of (iii) and (iv)” and there are particulars 1a through to l and then the allegation of particular (2).

HER HONOUR:   Just let me catch up with you, Mr Solicitor.  You are somewhat more familiar with this than I am.

MR THOMSON:   Yes.

HER HONOUR:   So 47(2) is the general plea of reasonable necessity.  Where do you say the particulars are?

MR THOMSON:   So underneath paragraph (d)(iv) there is a subheading “Particulars of (iii) and (iv)”, so 47 has 47(a); (b)(i) and (ii); (c); (d)(i) through to (iv), and then there are “Particulars of (iii) and (iv)”.

HER HONOUR:   Do these actually directly address the question of reasonable necessity?  I mean, they refer to the risks and problems, but do they actually address why this measure is said to be the response to those risks and those concerns.  That is really what they are, a list of risks and concerns, are they not?

MR THOMSON:   It sets out the nature of the risks and then in particulars i, j and k – and it is intended to amend these so as to refer to the distinct concepts of personal isolation measure and community isolation measure, as your Honour may have seen in the submissions and the minute.  We say before isolation measures of the type contained in the directions were implemented on 5 April 2020 – and that is a reference to isolation measures of a border restriction type, when I say the isolation measures of the type contained in the directions ‑ ‑ ‑

HER HONOUR:   Yes.

MR THOMSON:  

Isolation Measures apart from the Directions were implemented –

and then the:

Isolation Measures contained in the Directions further reduced the risk of community transmission of SARS‑CoV‑2, and the risk of re‑introduction of COVID‑19 into the community –

That is a matter of expert opinion.  Then k:

the easing or relaxation of the Personal Isolation Measures –

of the border restriction type:

that apply to persons travelling from interstate can only occur while there is no community transmission with the Australian States and Territories –

and so that ‑ ‑ ‑

HER HONOUR:   Is it to be inferred from that what you refer to in your submissions at paragraph 13, namely that if you remove them without that being the case there would be a more than minimal effect upon the infection rate?

MR THOMSON:   Yes.

HER HONOUR:   Perhaps that should be plumped out, so to speak, to make that clear.

MR THOMSON:   Yes.

HER HONOUR:   If we are talking about – we will make directions in terms of the defence and the reply to take up what we have discussed, but if we then talk about what you say is the need to have a trial in relation to what you regard as essential facts, the facts that you say are essential are those in paragraph 13 of your written submissions?

MR THOMSON:   Yes, they are expressed in a compact and summary way for the purposes of submissions, but that is the basis ‑ ‑ ‑

HER HONOUR:   That is always appreciated, Mr Solicitor.  They are quite easy to understand.  Would a and c be sufficient for your purposes, and is c the critical fact?

MR THOMSON:   Yes, c is certainly the critical fact in a case where all that is challenged is the maintenance of the border restrictions and not the initial imposition of them.

HER HONOUR:   Although a might be evidence of c?

MR THOMSON:   Yes, that is precisely ‑ ‑ ‑

HER HONOUR:   The fact that they were – this is a causation question really.

MR THOMSON:   Yes, that is exactly right.

HER HONOUR:   So if you established as a fact that they did contribute to the decrease in infection rate, then that would be a step towards c, but c might stand on its own.

MR THOMSON:   Yes, that is right.

HER HONOUR:   In relation to c, it would be sufficient for you to say the removal of the directions would have a greater than minimal effect rather than using the words “a substantial effect”?

MR THOMSON:   I think that is probably right.

HER HONOUR:   Now, Mr Dunning says – well, I thought he had said that the Court can infer these matters from the large amount of information that is provided in the special case.

MR THOMSON:   Yes, can I illustrate some of the difficulties for your Honour about doing that?  In substance, as we have apprehended the reasoning that has been adopted by the plaintiffs, it is that there was a turn in the growth rate of COVID‑19 cases in Australia a couple of weeks prior to the border restrictions that WA implemented, and about a week before in relation to the WA situation.  They plead that turning point in their reply.  I will just get it.  It is at paragraph 10a through to d in their reply.  So they plead, in response to our paragraph 14(g), that there was a turning point in the rate of infection in Australia, on or about 20 March 2020.

HER HONOUR:   Yes, I see.

MR THOMSON:   In WA they have put it at 30 March and then they say well, the border restriction directions came into effect on 5 April.  Then they say:

In the circumstances, the relevant empirical evidence is that the effect of the Containment Measures and the limited and specific Isolation Measures that were in place in Australia and in Western Australia before the Directions were made, demonstrates objectively that the growth rate of COVID‑19 had been reduced below 1 prior to the closure of the Western Australia border pursuant to the Directions.

Now, it is not entirely clear to us what the significance of saying that a growth rate “below 1” means, because if you can accelerate the decrease of the virus by the directions, that is all that we have alleged.  But the whole point about this turning issue is, we think, based upon their analysis of the data that they have included in the special case – if you go to page 10 of the draft special case, you see that at paragraph 21 there is data in relation to Australia and that shows the number of case notifications per week and you will see that in the week of 22 to 29 March there are 2,355 cases and then it starts going down from there on.

HER HONOUR:   I am sorry, which paragraph ‑ ‑ ‑

MR THOMSON:   The table in paragraph 21.

HER HONOUR:   Of the special case?

MR THOMSON:   Of the draft special case, on page 10.

HER HONOUR:   Yes, I have it now.

MR THOMSON:   You will see that in the week of 22 to 29 March there are a number of case notifications – 2,355 - and then it starts to go down after that.  This is for the Australian position.

HER HONOUR:   Yes.

MR THOMSON:   You will see in paragraph 23 it says:  “In Australia, the growth rate of confirmed cases of COVID‑19, covering internationally and locally acquired cases, was reduced to below 1 prior to the imposition of the directions.”  We say that the Court has to understand the significance of it covering both internationally and locally acquired cases because when you have international cases, if there ‑ ‑ ‑

HER HONOUR:   You are talking about community transmission?

MR THOMSON:   Precisely.  So we see that the reasoning that they have employed is entirely without any basis for the allegation that they can conclude an inference that there was in fact a reduction in the growth rate in relation to locally acquired cases.  The same point applies equally for the table in paragraph 28 and the statement made in paragraph 26 based on that table.

HER HONOUR:   Is there data from which you say – it would be your case that it is tolerably clear – the facts for which you contend are tolerably clear, or is it going to require the interpretation by experts of data understood in a particular way being able to unpick it?

MR THOMSON:   The second, your Honour, because this is a situation where it is looking at real‑time events and not looking backwards so much at things that are set in stone.  So at the moment data is still being collected.  There is inevitably a lag time.  There is some material that is coming in still, but from my understanding an expert can say well, based upon my general knowledge of how infectious diseases spread, and based upon looking at what has happened to this point, I can make these conclusions.  Now, that is something that we think would help the Court to confirm the inferences that we have ‑ ‑ ‑

HER HONOUR:   Well, it will unless another expert comes along and says the opposite.

MR THOMSON:   Precisely.

HER HONOUR:   Then you are left with the Court doing the best it can.

MR THOMSON:   That is precisely it.  So there needs to be some form of findings made – as I said at the outset at the directions hearing on 28 May, we will do our best because of the national significance of this case to agree as many facts as possible.  Now, it is possible that Mr Palmer and the plaintiffs in this matter might have had a way of attacking the border restrictions where they could admit the things that we needed to have admitted, and that might well be the position in respect of the primary case which I think says “absolutely free” means absolutely free in every sense, not just of legislative or executive action which is reasonably necessary.

So, it seemed to us that it was very important to try and agree as many facts as possible and in a case of this significance, perhaps the Court would want to see it resolved as soon as possible and so that we were trying to narrow the issues that could then be perhaps heard by a single Justice.  Now, it may be that ‑ ‑ ‑

HER HONOUR:   I take it that the parties have tried, with respect to the facts identified in paragraph 13 of your written submissions – have tried and cannot finesse them to a point where they can agree them.

MR THOMSON:   That is my understanding.  The submissions were filed before the special case was concluded on 9 June, on Wednesday.

HER HONOUR:   It is still a draft special case.  I take it that you are not suggesting it should go to a Full Court unless these facts are resolved.

MR THOMSON:   Not at all.  It was us that insisted upon those words that appear under the heading, “Draft Special Case”.

HER HONOUR:   Yes.  How do you say these facts ought to be resolved, assuming that the parties cannot – can you give me an idea of what you think is involved and what course should be taken?

MR THOMSON:   Yes.  If it were a normal case, and not one with real‑time movements we would certainly say to your Honour that it should be remitted.

HER HONOUR:   Well, I do not know that real‑time movements mean it should not be remitted.  The question is whether a Judge of this Court does it, or a judge of the Federal Court does it.

MR THOMSON:   Yes, and clearly in a section 92 case which turns on matters of fact, there is precedent for the matter to be dealt with by a trial judge, for example, of the Federal Court.  Her Honour Justice Gordon heard the Sportsbet v Victoria litigation which then went to appeal in the Full Federal Court in Victoria and it did not go on further appeal.  But that was a very fact‑intensive case turning upon the nature of betting machines in particular pubs in Victoria.  So it is entirely possible, and perhaps that is the way that it ought to go and it should be managed in the normal course.

HER HONOUR:   Regardless of which court does it, what do you say is involved?  What is the extent of the evidence?  How long is it likely to take?

MR THOMSON:   Yes ‑ ‑ ‑

HER HONOUR:   Do you have evidence ready to put on?

MR THOMSON:   We would seek approximately two to three weeks to put on our expert evidence.  We have tried to confine the issues that have been joined by reference to particular paragraphs of the defence and the reply.  That might need to be rejigged a little bit in light of what your Honour has said about the need to replead parts of that.  But, in our view, it is possible to narrow the issues with the other matters that have been agreed to a small compass which might be identified by reference to disputes on particular paragraph numbers. 

Those could then be heard either by – there should then be responsive evidence from the plaintiffs, there should be a trial into that evidence and some findings made and then, in light of the indication of the matters that have to this point been pleaded and agreed, the matter might be suitable at that stage to be determined by a Full Court in light of the findings.  It is a little bit like in the situation of the Court of Disputed Returns in Re Day where there was, as I understood it, some findings made in addition to matters that were made by her Honour Justice Gordon and then the matter went to the Full Bench in its capacity as the Court of Disputed Returns.

HER HONOUR:   Yes.  Matters were not quite so pressing in those cases.  I have to say the idea of it taking two to three weeks to get your case together when this issue has been around for some weeks surprises me a little.

MR THOMSON:   Can I say this, your Honour – and if your Honour orders me to do it more quickly than that, of course we will do it in every possible haste but the difficulty that I have encountered as well is that many of the people who could possibly be experts are the very people who are managing this in real time and are occupied by many other matters which they would regard as extremely pressing to make sure that the virus does not spread in the community at the moment.

HER HONOUR:   I would have thought, from Western Australia’s point of view, the maintenance of border restrictions would suggest that this might be something of a priority if that is your case.

MR THOMSON:   I certainly accept that ‑ ‑ ‑

HER HONOUR:   Mr Solicitor, how many experts are we talking about?  Do you have an idea of the shape and the size of your case?

MR THOMSON:   One to two experts.

HER HONOUR:   One to two?

MR THOMSON:   Yes.  Ideally I would like two experts.  It may be that it is only one.

HER HONOUR:   All right.  I will hear from Mr Dunning.  Thank you, Mr Solicitor.

MR THOMSON:   Thank you, your Honour.

MR DUNNING:   Chief Justice, obviously I listened carefully to the exchange with our friend.  In terms of the timeframe, in our respectful submission, it would need to be much more urgent.  If we were, in fact – and we have raised this – if we were given the fact that they want us to admit, with sufficient precision that is capable of being admitted, and the real difficulty is the way, for example, 13(c) is formulated.  I have not talked about 13(b) because I think that does not really arise.

HER HONOUR:   Well, I think it is obvious.

MR DUNNING:   Yes. 

HER HONOUR:   That is just the purpose of the direction – that is obvious.

MR DUNNING:   Yes, 13(a) and (c) - your Honour raised could they be finessed to resolve the problem.  We had rather hoped they would be able to be resolved.  They have not yet.  But it may very well be that the prompt delivery of expert evidence would allow them to be finessed, as I made clear in my earlier address to your Honour.

HER HONOUR:   What you are saying is you require some evidence to be put before you before you would agree the fact?  Is that what you are wanting?

MR DUNNING:   Effectively.  I would not style it that way in the sense that it is not a matter of wanting to require Western Australia to do something.

HER HONOUR:   No, but you are not – it is unlikely that any form of this fact would be agreed without evidence.

MR DUNNING:   I do not think…..that they would be capable of potentially affecting positively the infection rate.  The difficulty is taking it beyond that, which is what these purport to do when it sits amongst the other available evidence that suggests that the decline in infection rates was common, whether there were border restrictions or not.  Now, in the absence of evidence we would submit that rationality would lead you to that answer.  If the evidence was to say, well, you would not ‑ ‑ ‑

HER HONOUR:   You say the position is neutral, that the outcome of an inquiry of experts would be that there might be a minimal effect, there might not be?

MR DUNNING:   Correct.

HER HONOUR:   It is an unknown.  It cannot be deduced.

MR DUNNING:   That is right.

HER HONOUR:   I do not see how you are going to be able to agree the facts with Western Australia, in which case this matter does not go ahead for an urgent hearing.  I am not saying that you have – I am not blackmailing you to agree a fact, but I am saying that this is clearly an essential fact to Western Australia’s case and I do not think I can force them on.  I cannot force them to agree a special case without these facts.

MR DUNNING:   Yes.

HER HONOUR:   Or some facts that are capable of allowing the Court to determine the matter.

MR DUNNING:   Deal with this ‑ ‑ ‑

HER HONOUR:   I just do not know what the alternatives are.  Would it be of any use for the parties to have a little longer and bring the matter back before me, say, Monday afternoon or Tuesday and identify with greater precision the facts West Australia needs from its point of view, see if there can be any agreement with that and if not, at least we could use those facts and facts upon which you would say would need to be determined.

MR DUNNING:   Yes.

HER HONOUR:   We could use those as the basis for an order for a hearing and then we could perhaps be in a better position to say how quickly a hearing could be had.

MR DUNNING:   We think that would be useful.  If it were possible to see Western Australia’s expert evidence, even Monday morning, that would allow us to see if we could in fact then finesse these facts into something that could be agreed.

HER HONOUR:   Even in draft form?

MR DUNNING:   Absolutely, even in draft form.

HER HONOUR:   Just so that you could see the outline of what they say.

MR DUNNING:   That is right because it may very well be that once we saw it in draft form the issue about it would dissipate and we could simply agree, as we have been able to agree a lot of other matters, because as I say there might be an impact – we are not disputing.  We are just asking for a basis to be able to agree.

HER HONOUR:   I have to say I am not filled with confidence because it would seem to me Western Australia’s case is that there would be an effect and you are saying you cannot say that.  You cannot establish that as a fact.  In any event, Mr Solicitor, it is probably as well to bring this matter back, give the parties a little time to have a closer look at this to see if we can obviate the need for a determination which, as you say, would have to be by way of trial of the facts.  It would be of assistance, I think, if both sides identified the actual facts that would be the subject of the hearing.  If you can accommodate the provision of some outline of what your expert would say, that might be of assistance.  As I say, it is not entirely clear to me that it would be the case but it is worth pursuing, I am sure.

MR THOMSON:   Yes.  I am not sure about the latter suggestion.  I will certainly see what can be done.

HER HONOUR:   Yes.

MR THOMSON:   But I am not confident about that.  Can I say that if it was brought back on Tuesday afternoon the parties could use the time very usefully, at the very least in refining their pleadings and for us to provide the particular – well, the facts that we would rely upon in a greater degree of particularity. 

But I think your Honour has correctly summarised the position in the sense that we have the onus of proof if we get to this secondary argument and demonstrating the constitutional validity of the legislation.  We have to show that it was if the test is this – reasonably necessary or reasonably necessary and no obvious other alternative with the less severe effect and so, in those circumstances, if we demonstrate that we succeed, it seems

difficult to then apprehend that that fact could be agreed with the pursuit of that secondary case.

HER HONOUR:   Yes, I see the logic of that.  Yes, I am not sure that there is room for compromise but at least if we bring the matter back before me on Tuesday at 2.15 we can review the pleadings and make whatever orders are necessary for the determination of facts.

MR THOMSON:   Thank you, your Honour.

HER HONOUR:   I will make an order that the matter be listed for directions on Tuesday at 2.15 and the parties can have their pleadings amended and I will make orders giving leave to amend once we have considered them.

MR THOMSON:   Yes, thank you.  We may well be providing our friends with proposed revised pleadings over the weekend, but I am sure that will not cause any difficulty because they have been very helpful in that regard to this point.

HER HONOUR:   Yes.  Thank you, Mr Solicitor.  I will move on to the next matter of Mineralogy v Queensland.  Where is the special case – I do not have any submissions from the parties in this one, Mr Dunning, so I am not quite sure what the level of agreement is here.

MR DUNNING:   Your Honour, a letter was sent about midday – we got Queensland’s response yesterday afternoon.  We think we will agree it in the sense that they sent a draft back to us.  We went back with a few things this morning – I can give your Honour a copy of the letter if you wish that was ‑ ‑ ‑

HER HONOUR:   Is the essence of the letter that you need until Monday, the 15th, to finish it off?

MR DUNNING:   It is, your Honour, yes.

HER HONOUR:   I think I was informed that that might be the case.  Again, though, I think we need a bit of discussion about the pleadings but do I take it that it is likely that facts will be agreed in this case?

MR DUNNING:   That is my understanding.  I understood – Queensland sent us over the changes they want.  To the extent there are issues we have raised, they seemed issues that I would have thought would be able to be agreed.

HER HONOUR:   In relation to the pleadings I understand that Queensland’s defence in paragraph 22 says if there are breaches of sections 92 or 117 they are justified as reasonably necessary to the purpose of the direction, which is to say to assist in containing the spread and protect persons.  Again, I do not think it says that there any lesser measures that might achieve – or denies that there are any lesser measures.  I will not repeat the discussion I had with the ‑ ‑ ‑

MR DUNNING:   I understand and I should at once say that in different circumstances we might have been more inclined to not reply as we did in the interest ‑ ‑ ‑

HER HONOUR:   You have replied by saying why they are not necessary.

MR DUNNING:   Because of our desire to have a prompt hearing, yes.

HER HONOUR:   You say that the directions are not - either capable of or could have the effect of fulfilling that purpose?

MR DUNNING:   Yes.

HER HONOUR:   It is one way of saying not necessary, in the legal sense.

MR DUNNING:   Yes.

HER HONOUR:   I might have a chat with the Solicitor‑General for Queensland about how the case of reasonable necessity is sought to be made out and where I might find the facts.  What I am concerned about, of course, is that it is not immediately clear to me where, in amongst all of the extensive information in the special case, I find the essential facts.  What is the general case and where are the particulars?

MR THOMPSON:   Your Honour is right to make the observation that there are no particulars in 22(f) beyond the attachments to the defence.

HER HONOUR:   Yes.

MR THOMPSON:   Your Honour’s analysis of the reply seems to be right.  We recognise that casting it in terms of reasonably appropriate and adapted probably captures the concept of no less onerous alternatives being available, I think based on authority from this Court.  Our position is very similar to Western Australia.  We have sought to agree facts.  The facts do include, for example, that there was a decline in the number of interstate cases within the relevant period after the border closures were introduced, but ultimately we think it has to be dealt with by way of expert evidence.

HER HONOUR:   I see.  Again, in relation to this you are still discussing the special case and the facts.

MR THOMPSON:   Yes, your Honour.  The letter that my learned friend referred to, I have not fully analysed, but there is a block of paragraphs which appear to be controversial so I am not so confident about the agreement – perhaps my learned friend is - we really need time over the weekend.

HER HONOUR:   This issue is likely to be the real sticking point in all of these cases, is it not?

MR THOMPSON:   I think so, your Honour.

HER HONOUR:   It was always going to be.  Shall I put this matter over till Tuesday at 2.15 as well, on the same basis that the pleadings are put in order and any facts necessary for determination are identified with some precision and, if possible, agreed between the parties, so I do not have to go through that exercise?

MR THOMPSON:   Thank you, your Honour.

HER HONOUR:   I mean facts are necessary for both sides, but more particularly for Queensland, of course, who carries the onus.

MR THOMPSON:   Yes, your Honour, thank you.

HER HONOUR:   Thank you.

HER HONOUR:   There will be an order to that effect.  Mr Reynolds, Travel Essence.  We have not even got to a special case yet.  It is on its way, I understand.

MR REYNOLDS:   Yes, your Honour, and I am quietly confident that we will get there.  We are still negotiating and I do not want to say anything that will interfere with those negotiations, if your Honour understands what I mean.

HER HONOUR:   Of course.

MR REYNOLDS:   But I think we are going reasonably well and I am positive and ‑ ‑ ‑

HER HONOUR:   Are you likely to have the same problem that the other cases are going to have, though, in relation to the need for the States to establish the reasonable necessity of this and having facts – being able to prove that fact?

MR REYNOLDS:   Well, that is something that Queensland will need to do.

HER HONOUR:   Yes.

MR REYNOLDS:   It is a matter which I understood they had addressed already in the draft special case and in the negotiations between us.

HER HONOUR:   Can you tell me whether or not the special case is intended to incorporate the facts to be agreed with respect to the section 362B case or is that subject of your ongoing discussions and you have not resolved that yet?

MR REYNOLDS:   It is the subject of those negotiations, your Honour, but it is a question of whether there can be disentanglement, I think.  I know that is perhaps a bit opaque but that is the issue.

HER HONOUR:   No, no, I think I understand.  I had simply wondered whether or not, if the special case were otherwise agreed, whether that would be left perhaps for remitter, but I will leave that to the parties to resolve.

MR REYNOLDS:   Yes, your Honour, either remitter or for the residue of the case to stay for the time being in this Court.

HER HONOUR:   Yes.

MR REYNOLDS:   But again, that would be a matter for your Honour.

HER HONOUR:   Is there anything else you wish to raise, Mr Reynolds?

MR REYNOLDS:   Only this, your Honour.  We are tracking, I think – or I hope reasonably well to get something finalised on Monday.  We may need to come back before your Honour after that.  It is a question really where that would fit in best from the Court’s point of view.  I notice that the other matter is before your Honour at 2.15 on Tuesday.

HER HONOUR:   Yes.

MR REYNOLDS:   So I am guessing that that time may commend itself to your Honour as a possible time to come back.

HER HONOUR:   Yes, of course.

MR REYNOLDS:   We will need, I say more for my opponent’s benefit than your Honour’s, but we will need to be able to liaise with them over the weekend to try and get things finalised, I think, but I am sure they will help us out in that regard.

HER HONOUR:   Yes.  I do not expect there is much spare time in everyone’s lives – the lawyers’ lives at the moment.

MR REYNOLDS:   Yes, I think that is a fair comment, your Honour.  If it were to be convenient to the Court, might I respectfully Tuesday at 2.15 and we can tell your Honour where we are at at that point.  But hopefully your Honour will have been advised previously that there is an agreed special case and, of course, once it is agreed we will forward it as soon as possible to the Court.

HER HONOUR:   Yes, thank you, Mr Reynolds.  Mr Solicitor, is there anything you wish to add?

MR THOMPSON:   No, thank you, your Honour.

HER HONOUR:   I will adjourn this matter also to Tuesday at 2.15 for further directions.  As the parties no doubt appreciate, the Court had hoped, in accordance with the wishes of the parties, to have this matter heard effectively in two weeks, commencing on 30 June.  But at the moment that looks rather unlikely if there are facts to be determined.  I will postpone final analysis of that until I have a better idea of the extent of the facts and I note Mr Reynolds’ optimism in relation to the Travel Essence Case.  That might be different.  But if there has to be a hearing as to facts, it does not seem terribly likely that the dates initially comprehended will be taken up.  We will just have to see where things stand on the Tuesday.

I note also that there have been some interventions.  Tasmania has intervened, Queensland and Western Australia in their cross‑proceedings and the Commonwealth has just intervened.

MR DUNNING:   I understand Victoria has intervened as well.

HER HONOUR:   I see.

MR DUNNING:   Chief Justice, may I raise one other matter?

HER HONOUR:   Yes.

MR DUNNING:   In relation to the Mineralogy v Queensland and Palmer v WA, might we make a directions 7 to 9 in WA and 6 to 8 in Queensland ‑ ‑ ‑

HER HONOUR:   Are they the same in each?

MR DUNNING:   They are effectively the same.  They deal with, in effect, that the putting on of our written submissions, which is not going to be possible obviously until the special case is – I am sorry, until the issue about the facts is resolved ‑ ‑ ‑

HER HONOUR:   Yes.  Each of the Solicitors‑General, it would seem necessary to vacate those orders.  Mr Solicitor for Queensland?

MR THOMPSON:   Yes, your Honour, and it is probably necessary to vacate the order which required the plaintiff in Travel Essence to file and serve the special case book by Monday at least.

HER HONOUR:   Yes, all right.  There will be the orders in Palmer v Western Australia which are vacated – I might as well vacate 7 to 13 at this point, I would think; in Mineralogy 9 to 13; and, in Travel Essence – I do not seem to have a copy ‑ ‑ ‑

MR REYNOLDS:   If I could assist, your Honour.

HER HONOUR:   Yes, Mr Reynolds.

MR REYNOLDS:   Order No 5 is currently that by 4.00 pm on 15 June 2020 the plaintiffs file and serve a special case book.  If your Honour rescinded that order I think that would deal with the issue.

HER HONOUR:   Assist – I might as well vacate 6 through to 13 and then we will just take up the matter afresh on Tuesday.

MR REYNOLDS:   If your Honour pleases.

HER HONOUR:   Yes, thank you. 

The Court will now adjourn.

AT 3.14 PM THE MATTERS WERE ADJOURNED