Pollentine and Anor v The Honourable Jarrod Pieter Bleijie, Attorney -General for the State of Queensland and Ors

[2014] HCATrans 35

[2014] HCATrans 035

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B39 of 2013

B e t w e e n -

EDWARD POLLENTINE

First Plaintiff

ERROL GEORGE RADAN

Second Plaintiff

and

THE HONOURABLE JARROD PIETER BLEIJIE, ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND

First Defendant

MARLENE MORISON, COMMISSIONER, QUEENSLAND CORRECTIVE SERVICES

Second Defendant

THE CHIEF JUDGE AND JUDGES OF THE DISTRICT COURT OF QUEENSLAND

Third Defendant

Directions hearing

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 28 FEBRUARY 2014, AT 10.15 AM

Copyright in the High Court of Australia

____________________

MR D.P. O’GORMAN, SC:   If the Court pleases, I appear with my learned friend, MR R.W. HADDRICK, for the plaintiffs.  (instructed by Prisoners’ Legal Service Inc)

MR G.J. DEL VILLAR:   May it please the Court, I appear for the defendants.  (instructed by Crown Law (Qld))

HER HONOUR:   In terms of the ordering a referral in, Mr O’Gorman, there is just a little bit of a problem with the pleadings not being entirely consistent with the case stated.  The amended statement of claim – not the amendments itself – I think it has always been the case – go further than the facts in the special case and issue is taken in the defence that has been filed with some of it.  So I just wondered whether some of this is soluble, whether the statement of claim can be redacted.

MR O’GORMAN:   I believe it is, your Honour.  Your Honour, before we embark upon that, may I hand up two copies of a further amended – I will not seek leave to file at this stage, it is just for your Honour to see some minor amendments that we have made to clarify – or to correct an error, perhaps two errors.  First, there is the change to the name of the second defendant, which is not something that would particularly bother your Honour but for completeness ‑ ‑ ‑

HER HONOUR:   Yes, that should be done.

MR O’GORMAN:   Then, your Honour, paragraph 5.2, there was a typographical error.  It should be 263 not 293.

HER HONOUR:   I see that you have dealt with 4.5 and 5.4.

MR O’GORMAN:   And 6.3.  They are the remaining changes, your Honour.

HER HONOUR:   Yes, which we have just done, yes. 

MR O’GORMAN:   Yes.

HER HONOUR:   Unnecessary.  But it is the subsequent acts and omissions really that travel beyond the case stated.

MR O’GORMAN:   Yes, your Honour.

HER HONOUR:   So what are we going to do about that?

MR O’GORMAN:   Your Honour, what we would suggest ‑ ‑ ‑

HER HONOUR:   I have to say I cannot – I think I have raised this in an earlier directions hearing – I cannot really see the relevance of the subsequent acts and omissions.  I mean how do they aid the construction ‑ ‑ ‑

MR O’GORMAN:   That is why we are going to take the step that we are now proposing, your Honour.

HER HONOUR:   Yes.

MR O’GORMAN:   Your Honour, we do not need to continue at all with 17.1 or 18.1 because that is a matter of law.  We have no difficulty with deleting 17.2, 17.3 and 17.4 and then we would just replead 17.5 for completeness and a similar exercise in paragraph 18 removes any possibility of any factual disputes.

HER HONOUR:   Sorry, so all you are going to do is leave in 17.5 and 18.5.  Is that ‑ ‑ ‑

MR O’GORMAN:   That is correct, your Honour, yes.  Sorry, no – yes, 17.5 and 18.5.

HER HONOUR:   That is all?

MR O’GORMAN:   Yes.

HER HONOUR:   What is the relevance of 17.5 and 18.5 in terms of – because it is a question of construction?

MR O’GORMAN:   It is, your Honour, and that is why we – if it is going to create any further delay or anything like that then we certainly would not argue that it should remain.

HER HONOUR:   I cannot, for the moment, see what 17.5 or 18.5 do.

MR O’GORMAN:   We are happy to ‑ ‑ ‑

HER HONOUR:   Delete the lot.

MR O’GORMAN:   Which would be deleting the whole of 17 and 18.

HER HONOUR:   Mr del Villar, I think that takes away the problem.

MR DEL VILLAR:   It does address most of our concerns, your Honour.  There was one further matter which I thought I should mention and that is in relation to paragraph 21 of the draft further amended statement of claim regarding subsequent amendments.  On the first occasion that this was brought before the Court your Honour suggested that the question in the submissions about subsequent amendments rendering the detention lawful perhaps should go.  My learned friend indicated in the transcript that that was probably unnecessary and yet the pleadings still maintain that position.  I am just wondering whether my learned friend could consider that matter as well.  It does not seem to be relevant to their argument about the validity of the initial detention order.

HER HONOUR:   No.  It does not raise the same problem as the factual issues, but it is probably surplusage.  Mr O’Gorman.

MR O’GORMAN:   Your Honour, we would have no difficulty with that going.

HER HONOUR:   All right.

MR O’GORMAN:   Your Honour, may I respectfully inquire what communication you are referring to?  Your Honour appears to be indicating that there has been some sort of communications from the defendants as to what the approach is going to be.

HER HONOUR:   No, I was referring to their pleading.

MR O’GORMAN:   Right, thank you, your Honour.

HER HONOUR:   Is there a need to have another directions hearing or is there going to be ‑ ‑ ‑

MR O’GORMAN:   We would say no, your Honour.

HER HONOUR:   So on the basis that the writ of summons will be amended by deleting the paragraphs that we have discussed – and that will be filed ‑ ‑ ‑

MR O’GORMAN:   It would be filed in the terms of the document handed up this morning plus deleting 17, 18 and 21.  That is why I did not seek to file that particular document this morning.

HER HONOUR:   Yes.

MR O’GORMAN:   We would now be in a position to certainly file that by close of business on Monday.

HER HONOUR:   Right, and there will then be an amended defence.

MR DEL VILLAR:   Yes, your Honour.

HER HONOUR:   Could that be attended to by next Wednesday or next Friday?

MR DEL VILLAR:   That might be a little bit difficult given some of my commitments, but certainly probably by the following Monday it could be done.

HER HONOUR:   All right.  I do not think there is a problem with the timetable.  So then on the basis that those matters will be attended to, I do not think I need to make directions about it because the parties have undertaken to do it. 

MR O’GORMAN:   Yes, your Honour.

HER HONOUR:   The only order that needs to be made is then to refer it in to a Full Court.

MR O’GORMAN:   Yes, your Honour.

HER HONOUR:   On the understanding that the parties will correct the pleadings in the way in which it has been described, I think the only order that needs to be made is that the questions stated by the parties in the form of the special case be referred for consideration by a Full Court.  Is there any need for any further orders?

MR O’GORMAN:   No, thank you, your Honour.

MR DEL VILLAR:   No, your Honour.

HER HONOUR:   Thank you.  The Court will then adjourn.

AT 10.23 AM THE MATTER WAS ADJOURNED