Palmer v The State of Western Australia; Mineralogy Pty Ltd & Anor v State of Western Australia

[2021] HCATrans 56

[2021] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B52 of 2020

B e t w e e n -

CLIVE FREDERICK PALMER

Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

Office of the Registry
  Brisbane  No B54 of 2020

B e t w e e n -

MINERALOGY PTY LTD

First Plaintiff

INTERNATIONAL MINERALS PTY LTD

Second Plaintiff

and

STATE OF WESTERN AUSTRALIA

Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 APRIL 2021, AT 12.01 PM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   I will note the appearances.

MR C.F. PALMER appears in person in B52.

MR D.F. JACKSON, QC with MR M.A. KARAM and MR H.C. COOPER appears for the plaintiffs in B54/2020.  (instructed by Jonathan Shaw)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia and MS J.E. SHAW appear for the defendant in both matters.  (instructed by State Solicitor’s Office (WA))

HIS HONOUR:   I received and digested the written submissions provided by the parties last Friday.  This morning I had circulated some proposed directions which I trust the parties have received in the last half hour or so.  If I can deal with matter No B54 first.  Mr Jackson.

MR JACKSON:   Your Honour, we have read and considered the directions that your Honour sent this morning – or proposed directions.  Could I just say that there are really two aspects of it on which we seek to make a comment? 

HIS HONOUR:   Yes.

MR JACKSON:   They concern items 5 and 7, which is the question of the length of written submissions.  Now, I appreciate entirely, your Honour, that item 5 speaks of written submissions being twice as long as the standard, if I can put it that way.

HIS HONOUR:   Yes.

MR JACKSON:   Could I just say this, though?  This is a case where the legislation in question has its complications.  Just the task of going through it, even in the most neutral way, does take up considerable time, but it is either going to be in written submissions or in oral submissions.  Your Honour, if it be the latter, I do appreciate that there are limits to the Court’s patience in these matters.

May I say, with respect, our initial submission was for 50 pages in‑chief, and I would seek to maintain that.  I really think 40 pages, whilst generous, is just a little too little, if I could put it that way.  If I could say on the other side of things that this is a fairly big case and we should do it properly, with respect.  That is the first thing.

The second thing is in relation to the question of the length of a reply – that is paragraph 7 - your Honour, inevitably that will be a kind of work in progress depending on how many intervene in favour of the defendant and also what the defendant says in its submissions.  But perhaps the way to deal with that would be to leave paragraph 7 as is, but to leave open the possibility of coming back to the Court, if necessary, before the hearing in relation to the length of reply submissions.

HIS HONOUR:   Thank you.  Was there anything else, Mr Jackson?

MR JACKSON:   I am sorry.  I referred to paragraph 5, I am sorry.  I meant to say paragraph 3.

HIS HONOUR:   I understood that, Mr Jackson.

MR JACKSON:   I am sorry, your Honour.  No, there is not anything else.

HIS HONOUR:   Thank you.  Mr Thomson.

MR THOMSON:   Your Honour, the question about the length of the submissions is perhaps a matter for the Court and what will assist it most.  Sometimes by imposing a slightly shorter amount that will lead to greater brevity and succinctness in the expression of ideas.  We are happy either with 40 or 50 pages, just so long as there is parity between us and the other side.

Can I make one other observation which arises from discussions that I have had with a couple of other Solicitors‑General in the meantime, since filing of the submissions, and that is it may be that there is a position where certain submissions are made which are generally in support of the defendant but may be not completely in support of the defendant.  In those circumstances it would probably be desirable that in paragraph 6 that it should read “any intervener in support of the defendant, or not supporting or opposing any party, file and serve written submissions not exceeding 20 pages”.

To the extent – and it may be difficult at this stage to predict – that there are things that might be said by such an intervener, that we have a right of reply limited to five pages, which could be included in paragraph 7.  I think similar orders were made, for example, in Spence v Queensland, but I think at the moment it may be difficult to predict whether certain things are said or not said by some of the interveners.

HIS HONOUR:   Another way of dealing with that might be for such interveners to be brought forward to be included within order 4.

MR THOMSON:   Yes.  The difficulty might be this, that if they go first and that they largely support us, then they might be then making submissions before we make our submissions, and the difficulty about that might be that they would want to see what we have to say prior to deciding whether or not they wish to make any adverse comment.  It may be, and I rather suspect, that there could be a situation where the type of intervener that I have mentioned supports us wholly on most issues and then says nothing about a couple of issues or says a very small amount about one or two other issues.

So, it seemed to us that there is a prospect that there might not be a need for any reply or, if there is, then it would be a very short thing, but that it would be appropriate for us to go first so that the interveners can see what we have to say about each of the issues.  That is why I propose that perhaps we could add the words that I have mentioned to paragraph 6 and then give a right of reply to any – to file and serve written submissions by us in respect of any written submissions that have been filed by an intervener on 28 May, not exceeding five pages.

HIS HONOUR:   Yes.  Is there anything else, Mr Thomson?

MR THOMSON:   No, your Honour.  We are otherwise content with the submissions.  We would propose equivalent changes to B52, but otherwise in terms of dates – the only other thing, your Honour, is the rejoinder point.  Your Honour has seen all of that.  It is agreed, but if you have any questions about it of course we are perfectly happy to address those.

HIS HONOUR:   Thank you.  Mr Jackson, do you have anything to say about that proposed amendment to order 6 and corresponding amendment to order 7?

MR JACKSON:   Just that it does seem a little difficult to work out in advance what the interveners will do and what course should be taken in relation to that and we would suggest that a better way of dealing with the matter, if I may say so, with respect, would be to have a situation where, if there is to be some reply of the nature in question, that that be done by an order of the Court which may be agreed to or not.  In other words, your Honour, to put it shortly, it probably – it may well be desirable for there to be a brief directions hearing at some stage in the future.

HIS HONOUR:   Yes.  What day?  You have some Western Australian public holidays to take into account, I think.

MR JACKSON:   Yes.  Your Honour, so far as – I do not have a calendar immediately in front of me, but a date between ‑ ‑ ‑

HIS HONOUR:   Between 4 June – I am sorry.

MR JACKSON:   Yes, 4 June would be itself a satisfactory time because one knows what – people will know what they want to do about it.

HIS HONOUR:   Mr Jackson, I am not opposed to doing that, but I am not persuaded of the utility of a further directions hearing.  If I gave you 15 pages in reply, that should cover contingencies, I think.

MR JACKSON:   Yes, thank you.

HIS HONOUR:   I am disposed to make the amendments proposed by the Solicitor‑General.

MR JACKSON:   Yes, thank you.

HIS HONOUR:   I am not disposed to go beyond 40 pages.  I understand that the reason you want the extra 10 pages is to explain to us how the legislation works.  Rarely does that come across in writing particularly well, even in the best of written submissions, which I am sure we will be receiving.  40 pages is, as you said, double the length of the ordinary page limit and that should be sufficient in the circumstances.

I will make the orders in due course, but I will deal now with matter B54.  Mr Palmer, adjusting the proposed directions in your matter in exactly the same way as has been discussed in the other matter, do you have any comments on the proposed directions?

MR PALMER:   The only comment I have, your Honour, really goes to the reply.  We already know that Queensland will be an intervener - they have served us notice.  They will be providing a submission of 20 pages and

I am limited to 15 and there may be multiple interveners.  So, I feel I am at some disadvantage to what they will have and that is why I would echo some of the sentiments of Mr Jackson.  I think I need at least the same number of pages as Queensland to answer their queries.

HIS HONOUR:   All right.  I hear what you say.  I am not disposed to make that amendment, which brings me to a more general matter, Mr Palmer.  I take it that your present inclination is to continue to represent yourself, or to appear for yourself in this matter?

MR PALMER:   It is, your Honour.  Yes, it is.

HIS HONOUR:   You will be held to the same standards in your written submissions and oral submissions as a represented party.  It would be helpful in your written and oral submissions if you could clearly indicate where you depart from Mr Jackson’s submissions, what you say that is different and what you say that is additional to his submissions.  It would be extremely helpful to the Court if you would do that.

MR PALMER:   Yes, your Honour.  I will be doing that for sure.

HIS HONOUR:   You do not have to say anything more, Mr Palmer.

MR PALMER:   Yes.

HIS HONOUR:   All right.  The directions that I will make in each matter will be the proposed directions provided to the parties this morning, with these changes. 

In proposed order 6, I will add after the word “defendant” in the first line “or not supporting or opposing any party”.  In paragraph 7 I will put a colon after “2021”.  I will then put in “(a)” before “the plaintiff”.  I will change “10 pages” to “15 pages”.  I will add a little “(b)” which will be “the defendant file and serve written submissions in response to interveners, not exceeding five pages”.  With those amendments, I make the directions as indicated in each matter.

The Court will now adjourn.

AT 12.16 PM THE MATTERS WERE ADJOURNED