Philip Morris Limited v Commonwealth of Australia; British American Tobacco Australasia & Ors v The Commonwealth of Australia; Van Nelle Tabak Nederland BV & Anor v Commonwealth of Australia; JT International SA v...

[2012] HCATrans 46

[2012] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M173 of 2011

B e t w e e n -

PHILIP MORRIS LIMITED ACN 004 694 428

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Sydney  No S389 of 2011

B e t w e e n -

BRITISH AMERICAN TOBACCO AUSTRALASIA LIMITED ACN 002 717 160

First Plaintiff

BRITISH AMERICAN TOBACCO (INVESTMENTS) LIMITED BCN 00074974

Second Plaintiff

BRITISH AMERICAN TOBACCO AUSTRALIA LIMITED ACN 000 151 100

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Sydney  No S399 of 2011

B e t w e e n -

VAN NELLE TABAK NEDERLAND BV

First Plaintiff

IMPERIAL TOBACCO AUSTRALIA LIMITED ACN 088 148 681

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Sydney  No S409 of 2011

B e t w e e n -

JT INTERNATIONAL SA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 27 FEBRUARY 2012, AT 2.26 PM

Copyright in the High Court of Australia

__________________

MR A.C. ARCHIBALD, QC:   May it please, your Honour, I appear with MR C.P. YOUNG for Philip Morris.  (instructed by Allens Arthur Robinson)

MR A.J. MYERS, QC:   May it please, your Honour, I appear with MR M.F. WHEELAHAN, SC and MR N.J. OWENS for the British American Tobacco Companies.  (instructed by Corrs Chambers Westgarth Lawyers)

MR B.W. WALKER, SC:   May it please, your Honour, I appear with my learned friend, MR C.L. LENEHAN, for Van Nelle Tabak Nederland.  (instructed by Mallesons Stephen Jaques)

MR G. GRIFFITH, QC:   If your Honour please, I appear with my learned friend, MR G.A. HILL, for JT International, the fourth matter.  (instructed by Johnson Winter & Slattery)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If your Honour pleases, I appear with MR S.B. LLOYD, SC for the Commonwealth in each matter.  (instructed by Australian Government Solicitor)

MR P.J.F. GARRISSON:   If it please, your Honour, I appear for the Attorney‑General for the Australian Capital Territory intervening.  (instructed by ACT Government Solicitor)

HIS HONOUR:   I do not think you appear yet, do you?

MR GARRISSON:   There has been a notice of appearance filed, your Honour.

HIS HONOUR:   But you are intervening?

MR GARRISSON:   Yes, your Honour.

HIS HONOUR:   Yes, all right.  But you do not, I think, as an intervener have any role in what is about to happen.

MR GARRISSON:   That is quite correct, your Honour.

HIS HONOUR:   Yes, all right.  Yes, Mr Solicitor.

MR GAGELER:   Your Honour has seen draft questions reserved ‑ ‑ ‑

HIS HONOUR:   Yes.

MR GAGELER:   ‑ ‑ ‑ agreed between the Commonwealth and BATA.  There has been no agreement between the Commonwealth and any other party.  The BATA proceeding is, in our submission, a suitable vehicle for the issues of principle to be ventilated before the Full Court and, subject to your Honour being satisfied that the BATA proceeding is in a proper state for referral to the Full Court, our submission would be that the other proceedings be stood over to a date to be fixed after the determination by the Full Court of the questions reserved in the BATA proceeding and that the plaintiffs in those other proceedings, if they seek it, be allowed to intervene in the BATA proceedings.

HIS HONOUR:   Yes.

MR GAGELER:   Your Honour has seen that the proposed directions accommodate that.

HIS HONOUR:   Well, order 2 should be, “If sought on application by summons leave be granted”, should it not?

MR GAGELER:   Yes.

HIS HONOUR:   That does not bind any of the other plaintiffs actually to do so, of course.

MR GAGELER:   No.

HIS HONOUR:   But if they do wish to do so, then they will get the leave.

MR GAGELER:   Yes.  Your Honour might ask, at least rhetorically, what is the difference between this document and a special case and it really comes down to the automatic operation in a case of a special case of rule 27.08.5, that is the automatic ability to draw inferences as if at a trial.  The difference here, as your Honour will have seen from the pleadings, and this is the pleadings of all of the defendants, is that there is emphatically no agreement as to the inferences available to be drawn from the documents set out in Schedule C to our defence and the way in which that is accommodated in the present proceedings is to allow such of those documents as the Commonwealth would seek to rely upon before the Full Court to be filed pursuant to direction 5 and it will be a matter for the Commonwealth in submissions before the Full Court to make its case as to what should be drawn from those documents as a matter of constitutional fact.

HIS HONOUR:   Yes.  I suppose if Mr Myers had merely demurred to your defence, 27.08.5 would not apply?

MR GAGELER:   No.

HIS HONOUR:   Yes, I see. 

MR GAGELER:   So this is very similar to a special case in that the documents will all be before the Court, but that automatic operation of that rule will not be invoked. 

HIS HONOUR:   With respect to the questions, section 15 is the – I do not know quite how to describe it.  It is a reading down or reading up provision.

MR GAGELER:   Yes.  It is of that nature.

HIS HONOUR:   In his statement of claim, Mr Myers, in paragraph 12, I think, said that – I think that is saying section 15 is invalid, is it not?

MR GAGELER:   Yes.

HIS HONOUR:   How is that caught up in the questions?  Is that caught up in question 4?

MR GAGELER:   It is caught up in question 4, yes.  We understood that to be an independent challenge.

HIS HONOUR:   Yes, I see.  Yes, all right.

MR GAGELER:   And we understood 10 to 12 to be different ways of putting the same point.

HIS HONOUR:   Yes.  Now, question 2 - is the sense of question 2, require the judicial determination of ‑ ‑ ‑

MR GAGELER:   A disputed fact at trial as distinct from judicial ‑ ‑ ‑

HIS HONOUR:   These agreed facts.

MR GAGELER:   Yes.  There are agreed facts.  Within the body of the agreed facts, the only matter noted for dispute, your Honour will see in paragraph 14, which is a constitutionally irrelevant dispute ‑ ‑ ‑

HIS HONOUR:   Paragraph 14?

MR GAGELER:   Paragraph 14.  That is whether these images are original artistic works and after ‑ ‑ ‑

HIS HONOUR:   Why are they said not to be?

MR GAGELER:   They appear to be variations on a theme of artistic works that have existed over many years.  So it is the originality rather than the artistic nature of the works that would be in issue in any serious commercial contest about it, as I said, constitutionally irrelevant, but also, really, the thrust of question 2 is to focus on whether there are facts that remain disputed on the pleadings that would require ‑ ‑ ‑

HIS HONOUR:   If the answer to question 2 was yes, there would be no answer to question 1.

MR GAGELER:   That is correct, yes.  But it is meant to raise the question, if necessary, of whether the disputed facts are constitutional facts that need not be the subject of a trial if they need to be reached.

HIS HONOUR:   Yes.

MR GAGELER:   That could be spelled out in a slightly more elegant form but we thought that question 2 was sufficient. 

HIS HONOUR:   Yes, all right.  I am just looking at question 3.

MR GAGELER:   Question 3 again could be teased out, but it seems to do the job. 

HIS HONOUR:   Yes, very well.  This timetable is designed to be ready for a hearing in the Full Court for mention on 17 April?

MR GAGELER:   That is correct.

HIS HONOUR:   Now, why do you need 50 pages?

MR GAGELER:   Well, I certainly personally do not need 50 pages to advance ‑ ‑ ‑

HIS HONOUR:   That is uncharacteristically prolix, Mr Solicitor.

MR GAGELER:   Your Honour, there was a principle of reciprocity about which I will not take up any of your Honour’s time, but we took 20 pages from the plaintiffs and we took 10 pages from each of the interveners and we added that up to 50 pages and we thought, if they are not themselves overlapping and prolix, then it might take 50 pages to respond to them.

HIS HONOUR:   Very well.  In standard type - do we have to get to that level?

MR GAGELER:   It should, your Honour, double spaced, if I had my way.

HIS HONOUR:   All right.  So looking at 2, if any summons is put on, I can then deal with that in chambers and there will be no need for the parties to come back.

MR GAGELER:   Yes.

HIS HONOUR:   Then that would pick up the intervener’s submissions.  They would be picked up under 6 along with the plaintiff’s.

MR GAGELER:   Yes.

HIS HONOUR:   Yes, I see.

MR GAGELER:   There perhaps may be, if I can say, proposed two slight tweaks to the short minutes, your Honour.  In paragraph 5 your Honour will see that there is a direction that refers to the plaintiffs.  That could perhaps usefully be expanded to “and interveners referred to in order 2” if they choose.

HIS HONOUR:   Why?  We are not going to get into trying their cases?

MR GAGELER:   We would not oppose that if they sought it.  Paragraphs 6 and 7 perhaps, given the timing, do not serve any separate purpose.  Paragraph 6 perhaps could be deleted.

HIS HONOUR:   Sorry, paragraph 6?

MR GAGELER:   Yes.  Paragraph 6 is the filing of written submissions and then paragraph 7 is just what is required in accordance with the rules.  Annotated submissions may be just wasting paper.

HIS HONOUR:   Well, they could be telescoped, could they not?

MR GAGELER:   Yes.  Perhaps 6 could just go.

HIS HONOUR:   Paragraph 6 could drop out.

MR GAGELER:   Yes.

HIS HONOUR:   That seems sensible, Mr Myers.

MR MYERS:   Yes, your Honour.

HIS HONOUR:   Mr Myers, is there anything ‑ ‑ ‑

MR MYERS:   .....

HIS HONOUR:   Thank you.  Very well then.  Now, taking the short minutes, paragraph 2 will be revised to read, “If leave be sought on summons, leave be granted to those parties to intervene”.  Paragraph 6 will drop out and then 7 will become 6 and the numbers will then follow through to 13.  Yes, Mr Archibald.

MR ARCHIBALD:   Your Honour, I do not know if anything has been conveyed to the Court, but our position is that if the BAT matter is to go forward, our case should also go forward, in other words, what is agreed between BAT and the Commonwealth is not agreed between any of the other plaintiffs, in our understanding.  So we would wish to shortly submit to your Honour that our case can and should go forward alongside the BAT matter assuming the BAT matter is going forward.

HIS HONOUR:   I do not quite follow what you want to do.

MR ARCHIBALD:   We do not want to be relegated to the status of intervener in the BAT matter.

HIS HONOUR:   Well, you will not be relegated to the status of intervener if you agree to some vehicle which gets it before the Full Court.

MR ARCHIBALD:   Yes, your Honour.

HIS HONOUR:   Within that timeframe, as I explained last week.

MR ARCHIBALD:   Yes, your Honour.  We say, on our pleadings, on all the pleadings as they stand in our matter, questions arise which are identical with question 1 in the BAT matter and are apt for and susceptible to determination before the Court.  If the Commonwealth wishes to put further materials before the Court, they will be in the area of constitutional facts and they will be at liberty to do so and nothing in their factual material with BAT marks off ‑ ‑ ‑

HIS HONOUR:   What application are you making this afternoon?  You cannot derail Mr Myers and Mr Gageler, I do not think.

MR ARCHIBALD:   No.  Our application is that the Court reserves questions in the Philip Morris proceeding ‑ ‑ ‑

HIS HONOUR:   Where is the text?

MR ARCHIBALD:   We can provide the questions to your Honour.

HIS HONOUR:   Have you shown them to the other parties?

MR ARCHIBALD:   Yes, they have had them, your Honour.

HIS HONOUR:   What material would go forward to support the questions?

MR ARCHIBALD:   All that is needed and all that would go forward would be the pleadings.  I think there has been some contemplation that some mock up of cigarette packets may accompany that, but at the maximum, that is all that would be required.  Our case is the narrowest of all, as we would see it.  We rely on registered marks and we have raised claims in respect of unregistered marks, but we have made admissions in the reply which deal with smoking matters, which deal with the existence, publication and authorship of the Schedule C documents that form part of the facts which are the subject of the questions reserved document between the Commonwealth and BAT and in that environment, your Honour, there is nothing – cannot say there is agreement, of course ‑ ‑ ‑

HIS HONOUR:   Why was this not sorted out with the Commonwealth before this afternoon?

MR ARCHIBALD:   Well, your Honour, we have been endeavouring to sort matters out and the reality is we have not agreed to what is within the document that my friend has put before the Court in relation to BAT’s proceeding, but nothing, we submit, in that matter in any way makes our case inapposite for the reservation of questions and presents no impediment to the Commonwealth deploying the arguments it seeks to deploy in the BAT matter and we would be significantly disadvantaged and prejudiced, in our contention ‑ ‑ ‑

HIS HONOUR:   Why?

MR ARCHIBALD:   Because we would not have a determination in the proceeding which we have instituted and the commercial ramifications are plainly grievous for the times at which compliance with the legislation ‑ ‑ ‑

HIS HONOUR:   Well, I agree. That is what the Court has been saying for about four months now, that you all should get on with it.

MR ARCHIBALD:   Yes.  Well, we could not agree more, but if we cannot achieve agreement with the Commonwealth despite doing our best, we are left in this position.

HIS HONOUR:   Yes.

MR ARCHIBALD:   So we say, when one looks at the questions which would be raised as we would urge on our pleadings, the questions are susceptible of a determination without any embarrassment or any difficulty with the Court or the parties.  The Commonwealth is in no way hampered if our matter were to go forward on that footing.  We would ask essentially question 1 in the BAT matter, teasing that out, that involves contentions by us that we have property in the relevant subject matter, there is an acquisition and it is otherwise than on just terms and we say it follows from that that section 15 is engaged and so the Act does not apply.

Now, in light of what is pleaded in the statement of claim and raised by the defence, we have essentially the questions that were discussed before your Honour last Thursday, namely, are the further matters which the Commonwealth urges in its defence an answer to our contentions, and that essentially is the question for the Court.  Now, the extent to which the Commonwealth can go into factual matters to aid its position in that respect will be a matter for the Commonwealth to seek to deploy what seemed to be many linear metres if not kilometres of documents, but they will be able to do that as capably, if these directions are given, as they can under the auspices of the BAT document.

HIS HONOUR:   How would they be able to do that?

MR ARCHIBALD:   They would be able to bring forward before the Court whatever materials they would seek to provide whether there is a direction of the kind presently reposing in order 4 or not.  In other words, all that order 4 does is provide a time at which the Commonwealth is to do what it would otherwise do without a specific timeframe.  They will be able to put before the Court all sorts of material which they will urge constitute constitutional facts which assist their position and that, as we understand it, is all that paragraph 4 is doing.

HIS HONOUR:   Put before the Court on these questions reserved?

MR ARCHIBALD:   Well, that seems to be what the Commonwealth seeks to do because your Honour will understand that what is the subject of paragraph 4 in the BAT agreement is material which BAT explicitly says it does not admit, which we take to be a statement that it denies the contents of those documents.  The contents are not agreed, your Honour, and so if the Commonwealth simply brings forward material in our matter, it would be in the same position as it is under paragraph 4 of the ‑ ‑ ‑

HIS HONOUR:   But how would it bring it forward?

MR ARCHIBALD:   It would say, here is material which constitutes ‑ ‑ ‑

HIS HONOUR:   What, tender some evidence in the Full Court?  We have to get down to specifics.

MR ARCHIBALD:   Our proposition, your Honour, is none of this material can or should be received.  Of course we accept second reading speeches, material of that kind.  The Commonwealth wants to go further and that is exactly what this document is doing, wanting to bring in barrow loads apparently of documents and in some fashion or other ask the Full Court to give consideration to this material.  We say the matter stops before that.  The questions can and should be answered without that material.  If there is any need to go to that material that is when the barrow loads go off to the Federal Court.  So that is what these minutes are doing, with respect, your Honour.  These minutes seem to be contemplating that ‑ ‑ ‑

HIS HONOUR:   Mr Myers probably has some fairly strong views to the outcome of the Commonwealth’s endeavours in that respect, I would imagine.

MR ARCHIBALD:   Yes.  Well, we would share those, but ‑ ‑ ‑

HIS HONOUR:   But you are not prepared to chance your arm in the way he is.

MR ARCHIBALD:   Well, he is doing nothing in paragraph 4, in our submission, other than saying there is a time when he needs to be apprised of these documents.  If your Honour looks at the questions observed document, your Honour sees paragraph 31.  Paragraphs 26 through 30 refer to the Schedule C documents.  Paragraph 31 says, “For the avoidance of doubt, the plaintiffs do not admit the truth of the contents of the documents”.  The Schedule C documents in the defence in our case are the same as the Schedule C documents in the BAT case.  We have admitted in our reply, as I have indicated, that the documents were prepared or commissioned by the Commonwealth, they were published, et cetera, and we have said we deny the contents of them.  Through the reply we have, as we would see it, unless there is some subtlety in the verbiage that escapes us, we have in the reply taken the same position as BAT and the Commonwealth take in those paragraphs of this document.

HIS HONOUR:   Looking at your reply, it seems to a fairly large degree, to be a masked demurrer, not that it would be offensive for that.  You have a way out of this quite simply which is in your power.

MR ARCHIBALD:   But, as was explained to your Honour I think last Thursday on behalf of JTI, there are very grave problems in this case in demurring, and if by asking questions reserved, one does the same thing in substance as would flow from a demurrer then, in our submission, the Court can and should in the unusual circumstances of this case follow that course for there is no substantive difference.

HIS HONOUR:   Yes, there is.  If there is a demurrer, there are no grounds for this inferential material that Mr Gageler wants to rely on.  He wants to draw all sorts of inferences from it.  He says he can do that under the rules that govern this procedure, but he would not be able to do it if there was demurrer.

MR ARCHIBALD:   Yes.  I am not sure what the document is that is produced to the Court.

HIS HONOUR:   I just feel there is a lot of shadow boxing going on here that in the end of the day is not going to determine the outcome of this litigation.

MR ARCHIBALD:   Yes, your Honour.

HIS HONOUR:   I may be proved wrong, but that is my intuition borne of some experience of these brawlings that go on in these cases.

MR ARCHIBALD:   It has not been easy, your Honour.

HIS HONOUR:   No.

MR ARCHIBALD:   Still is not easy.

HIS HONOUR:   No, it is not.  Anyhow, let me ask Mr Gageler what his response is to this.  That is the best thing to do, Mr Archibald.

MR GAGELER:   Your Honour, my learned friend asserts but does not establish that there is some significant detriment to his client from intervening in a well‑formed vehicle for bringing before the Full Court issues that he wants to raise in his own proceeding.

HIS HONOUR:   If he intervenes, he becomes a party.

MR GAGELER:   Yes, and he has his say and he has his say ‑ ‑ ‑

HIS HONOUR:   He is bound by the result.

MR GAGELER:   He is bound by the result.  What he wants to put forward is a hybrid form of proceeding that proceeds partly on the pleadings but allowing us to apparently put before the Court documents upon which we wish to rely for making findings of constitutional fact.  So the very vehicle that he presents is a vehicle that is not within any clearly defined category of proceeding.

HIS HONOUR:   It could lead to an invidious result that if you are right about these species of constitutional facts that are presented in Mr Myers’ case and not presented in Mr Archibald’s case and they are conclusive, there is a pathway to different results, which does not seem to be attractive.

MR GAGELER:   No, but the ability for him to intervene is the way through it.

HIS HONOUR:   Yes, very well.

MR GAGELER:   I could say something about this form of question which is a bit confused, in our submission, but I will come to that if I need to.

HIS HONOUR:   Yes, Mr Walker.

MR WALKER:   Your Honour, one of the comments that fell from your Honour in answering my learned – in my learned friend, Mr Archibald, endeavouring to answer one of your questions concerned what I will call the Schedule C material, the list of many hundreds of pages, probably thousands, referenced all of them, I fear, with the freight of footnotes, some of which feed on each other by so‑called category [3], which the Commonwealth referred to and which Mr Myers’ client responds to in paragraph 31 of what are called agreed facts.  Paragraph 31 is no more an agreed fact of any relevance to case management than observing that we are all here this afternoon.  Paragraph 31 is an agreement to disagree and, very significantly ‑ ‑ ‑

HIS HONOUR:   That is right, and then that would trigger ‑ ‑ ‑

MR WALKER:   Exactly.

HIS HONOUR:   I imagine that would then trigger question 2, is it not?

MR WALKER:   Yes, and I am going to come back to that and to make good ‑ ‑ ‑

HIS HONOUR:   But if Mr Myers is right, you never get to question 2.

MR WALKER:   And if Mr Archibald is right, we do not get to it and if we are right in the same guise, and I suspect Dr Griffith will be the same.  That is my present point, that there is a difference presented by the Commonwealth putting forward the agreement with BAT, which should be exposed for being, in effect, of no substance at all.  Now, first of all, it is an agreement which was reached minutes before the time fixed for this hearing.

HIS HONOUR:   What is wrong with that?

MR WALKER:   None was reached by noon.  That is why none was ‑ ‑ ‑

HIS HONOUR:   What is wrong with that?

MR WALKER:   There is nothing wrong with it, nothing wrong with it at all.  What I am saying is it is an agreement that comes from a process which produces ‑ ‑ ‑

HIS HONOUR:   What do you want to do, Mr Walker?

MR WALKER:   May I hand up two copies of submission which shows exactly what we want to do.  We want to have questions reserved which will have the effect of the same questions of constitutional doctrine be determined – and application be determined as would be determined by the BAT questions.  It would do so on the basis of the pleadings because in fewer words but to the same effect the pleadings by admissions on behalf of the Commonwealth and admissions in reply on the part of my clients produce what we would beg to suggest was a more straightforward and just as robust statement of agreed positions upon which questions arise.  The only difference – could I take your Honour to the appended document which we head “Questions Reserved”?

HIS HONOUR:   Just looking at page 8, “Should the plaintiffs be shut out”.  What does that mean?  Shut out of what?

MR WALKER:   Well, these were written before this agreement was achieved and where all ‑ ‑ ‑

HIS HONOUR:   You are not shut out of anything if you intervene surely?

MR WALKER:   Well, subject to this.  There are some issues we raised, two issues, which are short points of law involving either no fact or the same facts as would otherwise be before the Court.  They should also be before, in our submission, the same Bench on the same occasion.

HIS HONOUR:   What are they?

MR WALKER: Would your Honour go to the appended document and you will see them being those that are referred to in questions 5 and 5, which go as a bracket and – 5, 6 and 7 go as a bracket and 8 and 9. They are respectively about section 139F of the Competition and Consumer Act and section 231A of the Trade Marks Act. Section 231A is simply that old provision concerning regulations inconsistent with the Act and section 139F raises the same issue but with respect to a different provision as the section 15 issue that your Honour spoke of earlier this afternoon. Now, those are extra issues which, in our submission, cry out to be ‑ ‑ ‑

HIS HONOUR: Just what is the point about section 139F? It is bearing upon the constitutional validity.

MR WALKER:   Yes.  That it does not represent either law making or – it does not represent law making so as to get round the prohibition on the acquisition but only on just terms.  Your Honour has seen some variance of this in other litigation which has never yet been necessary to determine the effectiveness of all or any of the variance of that approach to drafting.  It does not provide for just terms except by providing for just terms and the question whether in context that will be appropriate to save the validity of that which is otherwise manifestly crafted to be without just terms is ‑ ‑ ‑

HIS HONOUR:   You would only get to that, would you not, depending upon the primary questions as to acquisition?

MR WALKER:   Unquestionably, and that is true for all four of the proceedings.

HIS HONOUR:   Yes.

MR WALKER:   Questions, for example, about what I will call – and I am not trying to reverse an onus here – Commonwealth answers.  Your Honour will recall the ‑ ‑ ‑

HIS HONOUR:   Yes, five.

MR WALKER:   ‑ ‑ ‑ answers the Solicitor‑General gave your Honour on the last occasion.  Questions about or arising from or arguments concerning the so‑called Commonwealth answers, they also follow some primary success necessary on our part, and everyone agrees with that, and the various forms of questions that have been proposed in the attempt by the parties to reach agreed positions all embraced the fact that quite apart from the specific matters of some import raised by the Commonwealth answers, there are the fundamental elementary issues that we have to succeed on. 

So, for example, in the questions that we would propose to be reserved in answer to your Honour’s question, what do we want, we want an order referring these questions reserved, you will see on page 2 of that appended document, in item 1 we have attempted quite precisely to pick up the Solicitor‑General’s answers to your Honour on the last occasion.  In question 2, saving for the moment the section 15 question, there is the question upon which we bear from beginning to end the onus to make good that there is an acquisition of property attracting the guarantee. 

Question 3, in exactly the same way as you have seen proposed in the agreement between the Solicitor‑General and Mr Myers, draws to attention, given the position particularly of the Commonwealth, that there may be disputed facts beyond the capacity of the Court to determine according to the Commonwealth’s so‑called answers.  Now, if there are no such, then one moves in question 4 to deal with other questions that may arise contingently on the parties’ respective success up to that point and by that method, a comprehensive cover of the constitutional controversy between the parties is provided.

Now, your Honour, we do that on the pleadings and the pleadings include in our reply admissions which provide a functional equivalent to what you will see in the agreed document on its page 6 under the heading “Schedule C documents”, namely, 26, 27, 28, 29.

HIS HONOUR:   Just a minute.  Page 6?

MR WALKER:   Page 6.  The heading is “Schedule C documents” and you will see that in 26 to 29 there is a reference to Schedule C documents, 30 is an interloper, something else.  Those are matters that – that is, the authenticity, the provenance and the deployment of those documents – are admitted in our reply.  There is no need to type them out again in agreement.  They are there on the pleadings.  But we note that in paragraph 31, as my friend, Mr Archibald has pointed out, there is an agreement to disagree because in Mr Myers’ reply, paragraph 11(c), there is a so‑called joinder of issue with the contents of those documents and, if I may put it this way, for the avoidance of doubt that is then repeated in 31. 

So this is not a significant step forward in terms of agreeing matters at all.  It involves the creation of another document, the danger of paraphrase of pleadings has crept in, but it has not produced any agreement on matters which, in our submission, ought to be a concern for the Court about case management as follows.  We are told, and we welcome this, we are told that Mr Myers and the Solicitor‑General have agreed to directions which we would enthusiastically support that there be prior ordered notice on the part of the Commonwealth to the parties of the Schedule C documents to which they intend to refer, to use a very neutral expression.

We know, your Honour has already noted it during Mr Archibald’s comments, we know that Mr Myers is not going to join with the Solicitor‑General in saying that those are documents that ought to be taken as evidence of their truth be they constitutional facts or otherwise.  Now, that is why, in our submission, there is no more ripeness or readiness for hearing of the BAT matter than of Mr Archibald’s matter or of my matter, to speak only of the two others that have been mentioned so far, leaving Dr Griffith to carry his own burden, there is no difference in readiness at all.  If anything, we have the virtue of the documents remaining categorically tied to the pleadings which convey all the admissions necessary. 

There are no further admissions necessary, particularly bearing in the device that we have proposed whereby the rather odd joinder of issue by the Commonwealth with the goodwill conveyed by repeated and successful use of packaging, provided that that is dealt with by the device we have proposed in question 3 on page 2 of our appended document.  That would leave all the constitutional issues able to be debated just as surely and on just as solid a factual basis as is presented by this agreed document and that is the key.  There are no fewer facts agreed by us on the pleadings as are in this document.

HIS HONOUR:   But you overlook the possibility that this bundle of documents will be received as probative of some constitutional fact.

MR WALKER:   No.

HIS HONOUR:   The Commonwealth will have that measure of success in that case with Mr Myers.

MR WALKER:   No, with respect, your Honour.

HIS HONOUR:   It will not be in your case then.

MR WALKER: I have not made our position clear. Let me spell it out. Your Honour mentioned that you understood that the Commonwealth and BAT’s expedient for the questions reserved with agreed facts under section 18 of the Judiciary Act was, as my learned friend, the Solicitor‑General, pointed out to you a response to the capacity to draw inferences from a special case.

HIS HONOUR:   Yes.

MR WALKER:   As my friend put it, of course, this is a document designed to preclude the liberty to draw inferences.

HIS HONOUR:   Yes.  Suppose there should be that liberty, that is what I am trying to get you to grapple with.

MR WALKER:   Your Honour, that is where I am.  We understand, as with respect we heard Mr Archibald to say, that it will be a matter for the Commonwealth and the law and practice in this Court as to what, if any, use can be made of those documents in particular to support fact‑finding ‑ ‑ ‑

HIS HONOUR:   I know that, the Full Court is going to decide it.

MR WALKER:   Yes, but that is not advanced by this questions reserved agreed document because it is a form, as the Solicitor‑General told you, designed to preclude inferences from it – I am sorry, I have misunderstood.

HIS HONOUR:   I do not think he agrees with that.

MR WALKER:   I think the transcript will record clearly the special case rule ‑ ‑ ‑

HIS HONOUR:   We will not be trapping people on transcript, Mr Walker.

MR WALKER:   No, your Honour, I am trying to explain what I understand.  The special case procedure has been disdained by the parties because of that rule; that is how my friend started this afternoon.  We understand that it is a matter therefore for the Commonwealth to put forward the material, and we entirely accept there is then whatever possibilities there are in what can happen in Court.  The parties are not agreeing in this document between BAT and the Commonwealth or in any of the other cases, they are not trying – in vain I should add – to tie the hands of the Court, leaving the material to do whatever the material can after argument do.  Now, that is exactly the position on this questions reserved document agreed with BAT, as with us.

HIS HONOUR:   How?

MR WALKER:   Well, your Honour, if you are like ‑ ‑ ‑

HIS HONOUR:   Where do I see that this would follow from your document?

MR WALKER:   Because we will consent to directions for the Commonwealth – we have already made admissions about the Schedule C documents and that is all that BAT has done.  They have not said anything about the use of it – we have made those admissions in the reply.  So paragraphs 26 to 29 of the BAT and Commonwealth agreed document go no further than what we have in our reply.  They have the authenticity, they have the provenance, they have the legislative history deployment of these documents admitted by us, now it is up to them to use it as they may. 

So we are in precisely the same position as Mr Myers.  He, of course, has gone even further and said, and we join issue with the content and we do not admit the truth of the content in this agreement to disagree.  So, like Mr Archibald, our position is this.  Come the day we will no doubt put that most of those documents, assuming that there is a large number of them nominated by the Commonwealth, we will say most of those ‑ ‑ ‑

HIS HONOUR:   You can put all that as an intervener ‑ ‑ ‑

MR WALKER:   ‑ ‑ ‑ should not be before the Bench.

HIS HONOUR:   I know.  You can put all that as an intervener, can you not?

MR WALKER:   Well, if we can that is a large measure of protection for us, but ‑ ‑ ‑

HIS HONOUR:   I would have thought so.

MR WALKER:   But your Honour appreciates that involvement in so‑called questions of act, even query constitutional fact, may not be as straightforward for interveners as for the first constituted parties of the suit. 

HIS HONOUR:   Well, a direction can be given surely.

MR WALKER:   Your Honour appreciates then that the position is that we would be in precisely the same position if questions are referred, as we propose to be reserved, as come from this agreed facts document.  Then the question arises well why truncate the issues that arise on the face of our pleadings, simply because a few minutes before 2.15 the BAT document which, in fact, conveys substantive disagreement on the so‑called constitutional facts, arrived in place of what we had proposed. 

It is for those reasons, in our submission, your Honour, that of course directions can be made reflecting the important elements of consent between the Commonwealth and BAT.  But so, in our submission, there ought to be orders made and directions for exactly the same steps at exactly the same dates in our action as well.

May I be heard then in conclusion, your Honour, on the question of those short minutes.  As I understand it, there would not be resistance by the Commonwealth to the proposition that we should have equal space.  We certainly do not want 50 but we would wish to be able to put our argument in what I might call the ordinary way and bearing in mind the way the Commonwealth answers, as I have called them, are so pivotal, we ought to have a reply.  As I understand it, there is no objection to that on the part of the Commonwealth.

HIS HONOUR:   Yes.  Now, what revision would that mean, what addition?

MR WALKER:   It would mean that item 10 ‑ ‑ ‑

HIS HONOUR:   Item 9.

MR WALKER:   Sorry, 9, it is number ‑ ‑ ‑

HIS HONOUR:   It would be the plaintiffs and interveners under order 2.

MR WALKER:   And any interveners – yes, that is right.

HIS HONOUR:   It would not bring in the States.

MR WALKER:   No, no.  So that is what we would seek there, and we would have respectfully submitted, had it been just between us and the Commonwealth, that you do not need 12 at all and everyone can struggle on with the usual 20 but ‑ ‑ ‑

HIS HONOUR:   I am sorry, what are you saying as to 11?

MR WALKER:   The one typed as 12 now numbered 11 I think, your Honour, I was just saying it is not necessary at all.  The rules could simply obtain, but we certainly do not wish to – if the Commonwealth wants more then it is a matter, with respect, for the Court.  But certainly there should not be an inequality between parties who are plaintiffs ‑ ‑ ‑

HIS HONOUR:   The longer written submissions are the less likely they are to hit the mark.

MR WALKER:   Quite so, your Honour.  I am not for a moment suggesting ‑ ‑ ‑

HIS HONOUR:   If the Commonwealth wants to take that risk, so be it.

MR WALKER:   I am not for a moment suggesting the directions should be read or understood as you must file 20 pages, but there needs to be ‑ ‑ ‑

HIS HONOUR:   Yes, I know. 

MR WALKER:   ‑ ‑ ‑ there needs to be a limit.

HIS HONOUR:   I know. 

MR WALKER:   May it please the Court.

HIS HONOUR:   Yes, Dr Griffith.

MR GRIFFITH:   Your Honour, may I hand your Honour two documents?  One is proposed questions, the other is a document headed “Reply and Demurrer” to which we are prepared to unmask ourselves.  The questions, your Honour, propose what we would term ‑ ‑ ‑

HIS HONOUR:   Just let me read these. 

MR GRIFFITH:   The reply is our reply as filed.  Your Honour probably has that.

HIS HONOUR:   Yes, I do.

MR GRIFFITH:   It is the last paragraph, 21, that is the new paragraph – indicate, your Honour, on Thursday that we had difficulties in obtaining instructions and a preference for questions reserved, for a question I stated, your Honour.  So we do pose as an alternative document a questions reserved which has the same questions that we seek to identify issues on the demurrer and, your Honour, our questions reserved proposal merely proposes that the pleadings be attached and no other additional issues.  So we say that it is a straightforward document that provides for questions which we say arise for determination on the pleadings.

So far as the demurrer is concerned, your Honour, I now have instructions to say that in the alternative your Honour is not referred to State questions in our matter.  We apply, your Honour, for leave to amend our pleadings by filing an amended reply and demurrer in these terms and we say, your Honour, that then on the face of things we are entitled to engage order 27 and apply by summons for it to be set down, no complications.

HIS HONOUR:   Yes, that is right, but you would have to have a timetable, would you not?

MR GRIFFITH:   Yes, your Honour, but I first have to, as it were, obtain leave, your Honour, to file it at this stage.

HIS HONOUR:   I know.

MR GRIFFITH:   If he does, your Honour, we are happy to embrace the same timetable and, your Honour, on the basis of equality of opportunity and we would say the formality of setting down, we could apply later this week before your Honour.  There is no difficulty about that, even tomorrow.  It is just a matter of filing the document, or do it nunc pro tunc in the face of your Honour.

HIS HONOUR:   Yes.

MR GRIFFITH:   So our position is, your Honour, that there is no complication on the demurrer.  It is an entitlement under the rules, and we should be entitled to stay as a principal party.  I have nothing further to say – yes I have, your Honour.  On the issues made by my learned friend, Mr Walker, your Honour, we would agree that your Honour can trust the parties to be brief and it is appropriate not to fix disproportionate times.  We will all work together, your Honour.  There will be no inappropriate repetition.

HIS HONOUR:   Yes.  Is there any indication that any parties have any intervener other than the Australian Capital Territory?

MR GRIFFITH:   Yes, your Honour.  The Northern Territory has given notice ‑ ‑ ‑

HIS HONOUR:   Yes, the Northern Territory.

MR GRIFFITH:   ‑ ‑ ‑ but has not appeared, but indicated that it ‑ ‑ ‑

HIS HONOUR:   But any State intervener?

MR GRIFFITH:   ‑ ‑ ‑ in favour of power.  No states, your Honour, as we understand it.  We understand there might be other interveners, your Honour, which we will leave to the Court to deal with in the normal way possibly when the matter is turned on.  Can I also indicate, your Honour, as to the proposed amended paragraph 6, I think my learned friend, the Solicitor, was content to have – to us, the parties have similar order in our position, your Honour, rather than the equinox which is a Thursday and have until the Monday morning so we can work away over the weekend without ‑ ‑ ‑

HIS HONOUR:   So what date would that be?

MR GRIFFITH:   The 26th, your Honour.  The 22nd is the equinox.  I was asking until Monday.  I thought my learned friend – when I mentioned, your Honour – said that he had no concern, but perhaps he did.  But we would ask for the Monday, your Honour.  It gives us another four days ‑ ‑ ‑

HIS HONOUR:   The 22nd?

MR GRIFFITH:   The 22nd is a Thursday, your Honour.

HIS HONOUR:   That is right.

MR GRIFFITH:   We just ask until the Monday so we have another four days and only one working day.  We are prepared to accept 9 am on the Monday, your Honour.

HIS HONOUR:   The 1st of April is a Sunday, is it not?  Is that right?

MR GRIFFITH:   I have a diary here, your Honour.

HIS HONOUR:   I am just looking at what is now order 7 – proposed order 7. 

MR GRIFFITH:   Your Honour, perhaps that is what happened when you settle orders at 20 to two.  But that is so, your Honour.  But, as my learned friends state, we are happy to ‑ ‑ ‑

HIS HONOUR:   The 2nd?

MR GRIFFITH:   Have the 2nd if that suits him.  It is just an April fool joke by my learned friends, your Honour.  Your Honour, it is not really worth fighting over a day, but for us to have until 9 am on the 26th gives us three more working days. 

HIS HONOUR:   I will say noon on the 26th.

MR GRIFFITH:   If your Honour pleases.  Your Honour, we accept similar orders should be made and we could present them to your Honour as we apply for the demurrer to be set down or if your Honour would accept this as an application to be set down ‑ ‑ ‑

HIS HONOUR:   Yes, I would.

MR GRIFFITH:   In that case, your Honour, if your Honour would make the orders.  If your Honour please.

HIS HONOUR:   Yes, Mr Solicitor.  Now, firstly as to Dr Griffith’s position, you cannot oppose setting down the demurrer, I would have thought.

MR GAGELER:   Your Honour has the discretion as to whether or not the demurrer is referred to a Full Court.  Dr Griffith’s position reflects the old rules but your Honour is entirely the master of his proceedings so the question becomes whether it is appropriate, given Mr Myers’ proceedings and given the ability for Dr Griffith to intervene and raise the points flagged in his very straightforward statement of claim in those proceedings, whether it is appropriate to have parallel with that another vehicle before the Full Court that operates not on the basis of facts and the ability of the Full Court to draw such inferences of fact as are appropriate, but rather on an assumed basis. 

Now, in our respectful submission, the better vehicle is one that allows the Court appropriately to accept an agreement of the parties as to underlying facts and then to move forward on the basis of findings of constitutional fact if that is seen by the Full Court to be appropriate.  Your Honour, the usual vehicle that has emerged in the last decade ‑ ‑ ‑

HIS HONOUR:   Yes, I know the usual vehicle.

MR GAGELER:   ‑ ‑ ‑ is the special case and the reason ‑ ‑ ‑

HIS HONOUR:   It has some defects, in my view.

MR GAGELER:   The reason for that, certainly from the perspective of a frequent litigator in this field, is that it allows the factual substratum for the determination of constitutional issues to be properly ventilated and your Honour has seen ‑ ‑ ‑

HIS HONOUR:   It permits the floating of material which lends colour rather than constitutes a constitutional fact. 

MR GAGELER:   If your Honour – I do not necessarily want to get into a debate here, your Honour, but your Honour has been told by some of my learned friends that there is sufficient in the replies to allow the proceedings to go ahead on the same basis.  Essentially, what the plaintiffs seek to characterise as an acquisition of their property, contrary to section 51(xxxi), the Commonwealth seeks to characterise as the prohibition of the promotion of a seriously harmful product.

Now, the gravity of the harm caused by smoking is something that my learned friends take different positions on.  In the case of Mr Myers he is prepared to accept, on the pleadings, that there are serious health consequences caused by smoking.  Mr Walker’s client, on the other hand, is prepared to accept nothing more than that some people say that.

Your Honour, there is a range of positions on a very important question of the nature of the mischief, to which this legislation is directed, that should not be determined on a hypothetical or truncated basis, in our submission.  If your Honour pleases.

HIS HONOUR:   Now, wait a minute.  Would there be any opposition from the Commonwealth to a qualification to order 2 to make it clear that any intervention by the other parties under that permission enabled them to put their position, as you have just expressed it, on the so‑called evidentiary matters?

MR GAGELER:   There is no difficulty with that, your Honour.  That is what I had in mind when I suggested a ‑ ‑ ‑

HIS HONOUR:   I thought so.

MR GAGELER:   ‑ ‑ ‑ a change to paragraph 5.  I think it is still paragraph 5. 

HIS HONOUR:   That is just serving documents.

MR GAGELER:   Yes.

HIS HONOUR:   Does that include interveners?

MR GAGELER:   We would be content for the interveners to serve any documents that they wished to.

HIS HONOUR:   What do you say about that, Mr Archibald?

MR ARCHIBALD:   Our primary position is today, and will be when the matter is heard, that you never get to those documents ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that.  What worries me is other people may have different views which may prevail among a majority of the Court, for all I know.  If that possibility is foreclosed, the whole procedure is miscarried.

MR ARCHIBALD:   Yes, your Honour.  If there be a liberty contained within the Court’s directions, then it could be availed of or not availed of as an intervener may choose.

HIS HONOUR:   Yes.

MR ARCHIBALD:   I was foreshadowing what our likely election would be if we are in that position.

HIS HONOUR:   I understand that.

MR ARCHIBALD:   So we have nothing to say about whether there should or should not be such an opportunity afforded.

HIS HONOUR:   Thank you.  Yes, Mr Walker.

MR WALKER:   We are the same, your Honour.

HIS HONOUR:   Thank you.

MR GRIFFITH:   Your Honour, may I say something?

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, firstly I was intending to apply under the current rule with respect to demurrers and seeking leave to set it down rather than doing it by notice, as was the case under the previous rule.  Secondly, your Honour, we would not be seeking the right to file material because ‑ ‑ ‑

HIS HONOUR:   I know your position.

MR GRIFFITH:   ‑ ‑ ‑ our case is made on the basis that we just do it on the pleading, your Honour, in our demurrer, so we do not want to be involved in that.

HIS HONOUR:   That may be a course which entirely commends itself to the Full Court.  That is why I want to keep that open, you see.

MR GRIFFITH:   It might, your Honour.  They might run ours and not the others.  Your Honour, we have printed out material that we have already had indications the Commonwealth – without revealing what it is, because my friend objected when I referred to it – all I can say, your Honour, my instructions are it is 10 lever arch files, A4 double sided, for a start.  There could be further documents in under the footnote rule on category C.  Your Honour, I am told that is the case.  My learned friend might say he is not going to do that, but that is what we have seen.

MR GAGELER:   May I indicate the nature of some of this material, your Honour.  The Surgeon‑General’s report from 2004 surveying the totality of the literature on the health effects of smoking ‑ ‑ ‑

HIS HONOUR:   Yes, that is right.

MR GAGELER:   This would generally be regarded as an authoritative document publicly available, of an official nature and from which constitutional facts can be drawn.  Now, your Honour, I am faced with a position of plaintiffs who refuse to accept the conclusions generally drawn by health authorities around the world as to the health effects of smoking.  It is for that reason that there seems to be a necessity to burden the Court with documents that record what many people would regard as common knowledge.  I will say no more.

MR GRIFFITH:   Your Honour, I was interrupted.  Can I finish my turn?

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour, the point my learned friend makes is why we say the plain vanilla demurrer route is the one to go because your Honour does not have – and the Court will not have to engage in this issue which is obviously one to be joined.  If your Honour pleases.

HIS HONOUR:   I understand that.  Mr Myers, do you want to add anything?

MR MYERS:   No, your Honour.

HIS HONOUR:   Thank you.  I am minded to grant leave to Dr Griffith’s client in the fourth matter to amend their reply and to demur and to set down the demurrer for the Full Court at the same time as the Full Court will be dealing with other matters on 17 April.  In respect of British American Tobacco I will make some changes to the proposed short minutes designed to protect the positions indicated by Mr Walker and Mr Archibald in their matters insofar as they are minded to intervene on what will be an expanded basis, if I can put it that way. 

Those two matters would then go before the Full Court, but the first of them, as it were, is partly pregnant, one might say, with issues that come from the other two pieces of litigation, the object being to ensure that there is before the Full Court sufficient procedural avenues to enable the Full Court to take whichever course it wishes to take in resolving these issues as expeditiously as possible in this hearing to be set down in April.

I will take a short adjournment.

AT 3.30 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.49 PM:

HIS HONOUR:   In matter S409/2011, that is Dr Griffith’s matter, these are the orders I propose:

1.Grant leave to the plaintiff to amend its reply so as to both reply and demur in the form of the document initialled by me, dated and placed with the papers.

2.Set the demurrer down for hearing by the Full Court on 17 April 2012.

3.The plaintiff file and serve its amended pleading on the Commonwealth on or before 3 March 2012.

4.Dispense with rule 27.07.6(b).

That is coming back for another summons.

5.The matter proceed, mutatis mutandis, in accordance with orders 3, 6, 8, 9, 10, 11, 12 and 13 of the orders to be made in S389 of 2011 –

Just check that, Dr Griffith. 

MR GRIFFITH:   Right now, your Honour?

HIS HONOUR:   Yes - 3 would be the demurrer book rather than reserved questions book; 6 would be the submissions on 26 March and that would include the interveners in the other matter if they wanted to join in; 7 would not be applicable; 8 would be applicable, 9 and I think the rest would be applicable.

MR GRIFFITH:   Yes, Your Honour, we are content.

HIS HONOUR:   But Schedule C is out of this system.

MR GRIFFITH:   Thank you, your Honour.  Your Honour, we are able to deliver the amended pleading tomorrow rather than ‑ ‑ ‑

HIS HONOUR:   Very well.  I say on or before ‑ ‑ ‑

MR GRIFFITH:   Your Honour, let us make it the 29th.  It only happens every four years.

HIS HONOUR:   Yes.

MR GRIFFITH:   The defendant already has it, your Honour.

HIS HONOUR:   I am getting suspicious about these dates.

MR GRIFFITH:   Perhaps your Honour would not be retiring if you were born on the 29th, your Honour.

HIS HONOUR:   Yes, 29 February, all right.

MR GRIFFITH:   Thank you, your Honour.

HIS HONOUR:   In S389, working off the draft supplied earlier this afternoon:

1.The attached questions be reserved –

the reserved questions –

for the consideration of the Full Court pursuant to section 18 of the Judiciary Act 1903 (Cth).

2.If leave be sought on summons, leave be granted to Van Nelle Tabak Nederland BV, Imperial Tobacco Australia Limited, JT International SA and Philip Morris Limited ‑ ‑ ‑

MR GRIFFITH:   Your Honour, I do not require leave.

HIS HONOUR:   You do not require that, very well.  So that will just read:

leave be granted to Van Nelle Tabak Nederland BV, Imperial Tobacco Australia Limited and Philip Morris Limited to intervene with exposure as to costs but with leave to propose a variation of the questions in the reserved questions and so as to reserve the position of the interveners respecting the relevance of Schedule C documents referred to below under order 4.

That is designed to protect your position, Mr Archibald and Mr Walker.

MR ARCHIBALD:   May it please, your Honour.

HIS HONOUR:  

3.The defendant file and serve reserved questions book, including these orders but excluding any exhibits, on or before 9 March 2012.

4.The defendant file and serve a book of documents from Schedule C to the defence, on which it proposes to rely at the hearing of the reserved questions, on or before 9 March 2012.

5.The plaintiff, and interveners under order 2, file and serve any documents in answer to the documents from Schedule C to the defence upon which they propose to rely at the hearing of the reserved questions, on or before 15 March 2012 –

That is also designed to protect your position, Mr Walker and Mr Archibald.

6.The plaintiffs and interveners referred to in order 2 file and serve annotated submissions in accordance with rule 44.06 of the High Court Rules 2004 (Cth) on or before noon on 26 March 2012.

7.The defendant file the exhibits to the reserved questions on or before 2 April 2012.

8.The defendant –

Now, the Australian Capital Territory is intervening in support of the Commonwealth, I take it?  That is right, is it not?  What is the Northern Territory’s position?  Does anyone know?

MR GARRISSON:   The Northern Territory supports ‑ ‑ ‑

HIS HONOUR:   Yes.  So they are supporting the Commonwealth, I suppose.  I had better say:

8.The defendant and the Attorneys‑General for the Australian Capital Territory and the Northern Territory file and serve written submissions on or before 5 April 2012, which submissions are to be annotated in accordance with rule 44.06 of the High Court Rules 2004 (Cth) (“the Rules”).

9.The plaintiffs, and any interveners pursuant to order 2, file and serve any written submissions in reply to the defendant, or any intervener, in support of the defendant, on or before 11 April 2012.

10.Compliance with rule 44.06.1 of the High Court Rules, other than as required by these orders, be dispensed with.

11.Written submissions not to exceed:

(a)in the case of the plaintiffs, 20 pages and 10 pages in reply;

(b)in the case of interveners, 10 pages;

(c)in the case of the defendant, 50 pages.

12.Liberty to apply to a Justice on three days written notice.

13.Costs reserved.

I make the above orders.  In the other two matters, M173 of 2011 and M399 of 2011, I will stand them over with liberty to restore to a Justice on three days written notice.  The costs in those matters will be costs in those actions.  Yes, Mr Solicitor.

MR GAGELER:   Your Honour, could I just raise one issue about the proposed order 2 in S389?

HIS HONOUR:   Yes.

MR GAGELER:   Your Honour has referred to leave to propose a variation to the questions.  Would your Honour give a date by which the proposal would be notified, perhaps the same date as appears in order 5 – proposed by 15 March 2012?

HIS HONOUR:   Yes, that seems fair enough.

MR GAGELER:   For clarification that would be a proposal that would be considered by the Full Court at the hearing before the Full Court.

HIS HONOUR:   Yes, that is right.  I will amend proposed order 2 then so that it reads:

but with leave to propose on or before 15 March 2012 a variation of the questions.

MR ARCHIBALD:   Yes, your Honour, that is acceptable.  Would your Honour allow the order 2 interveners any opportunity to provide written submissions in reply?

HIS HONOUR:   Yes, I am sorry, I forgot that, yes.

MR ARCHIBALD:   Your Honour gave us 10 pages, I think that was in‑chief.

HIS HONOUR:   Yes.

MR ARCHIBALD:   Might we submit 10 pages in reply would be appropriate?

HIS HONOUR:   Yes.  Well, then 11(b) would say “In the case of each set of submissions by interveners, 10 pages”.

MR ARCHIBALD:   If your Honour please.

HIS HONOUR:   Is there anything else?

MR GRIFFITH:   It is me again, I am afraid, your Honour.  Your Honour, having regard to the demurrer we, of course, go first, but the Commonwealth is making out what to us is an original exclusion from the ambit of the acquisitions power and our submission, your Honour, on one – the highest would be that the Commonwealth should go first on that because until we see what it is we do not know what it ‑ ‑ ‑

HIS HONOUR:   Yes, you really are demurring to their defence.

MR GRIFFITH:   Yes, your Honour, but what we would seek, your Honour, is 20 pages, if necessary, in reply because that is when we get to the meat of the issue, answering the Commonwealth’s original case.

HIS HONOUR:   Yes.

MR GRIFFITH:   To us it is green grass and until the lawn grows, your Honour, there is nothing there.

HIS HONOUR:   Yes.  So in your matter there had better be specific directions as to submissions then, had there?

MR GRIFFITH:   Your Honour, we were happy for the rules to apply other than reply – the length be extended to 20 pages.  That would be sufficient, your Honour.  We intend to have 20 in‑chief, yes, your Honour.  Our learned friend can have 50 in the middle, your Honour.  I do not mind.  We just want to know what his case is before we have to answer it.

HIS HONOUR:   Yes.

MR GRIFFITH:   Your Honour knows us, your Honour.  We do not waste words.

HIS HONOUR:   In matter S409 of 2011, and the application of order 11 – there will be a modification of order 11 to permit a reply – at a guess that is what it is.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   A reply by the demurring party of up to 20 pages.

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   All right.

MR GRIFFITH:   With liberty to apply, your Honour.  Thank you, your Honour.

HIS HONOUR:   So order 5 in your matter, Dr Griffith, will read:

The matter proceed, mutatis mutandis, in accordance with orders 3, 6, 8, 9, 10, 11, 12 and 13 made today in matter S389 of 2011, but with modification of order 11 to permit a reply by the demurring party of up to 20 pages.

MR GRIFFITH:   If your Honour please.

HIS HONOUR:   No further bids?  I thank counsel for their assistance.  I will now adjourn.

AT 4.03 PM THE MATTERS WERE ADJOURNED