Pompano Pty Ltd ( ACN 010 634 689) and Anor v Assistant Commissioner Michael James Condon

[2012] HCATrans 268

[2012] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B59 of 2012

B e t w e e n -

ASSISTANT COMMISSIONER MICHAEL JAMES CONDON

Applicant

and

POMPANO PTY LTD
(ACN 010 634 689)

First Respondent

FINKS MOTORCYCLE CLUB, GOLD COAST CHAPTER

Second Respondent

Directions

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 26 OCTOBER 2012, AT 10.15 AM

Copyright in the High Court of Australia

MR P. KULEVSKI:   May it please the Court, I appear for the respondents.  (instructed by Potts Lawyers Brisbane)

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

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, intervening on behalf of the Attorney-General for Queensland.  (Crown Law Brisbane)

HER HONOUR:   Mr Solicitor, thank you.  I have had an opportunity to read the special case, which I understand has been agreed between the parties.

MR KULEVSKI:   Yes, your Honour, subject to two typographical corrections which are both agreed. 

HER HONOUR:   That is at the top of page 2, paragraph 5.

MR KULEVSKI:   And now there is a third.

HER HONOUR:   Perhaps you could indicate them for me.

MR KULEVSKI:   Your Honour, the first one is in paragraph 9, the parties’ names have not been consistently transposed.  So at 9 it should say “with the applicant’s material” in advance.

HER HONOUR:   Yes.

MR KULEVSKI:   And then, your Honour, on the last page, question 7 should be “is section 9 of the Criminal Organisation Act”, not subsection (9)(2).

HER HONOUR:   I see, and at the top of page 2, the second line, it identifies the grounds on which the application was based, is that what it is meant to be?

MR KULEVSKI:   Yes, your Honour, thank you, we are indebted to you.

HER HONOUR:   The special case has the virtue of being brief.  Can I just ask you in relation to question 5, the question is rather unwieldy but I suppose there is no other way of stating it.  I had a look at it myself.

MR KULEVSKI:   Yes, your Honour, we were conscious of that and does your Honour have ‑ ‑ ‑

HER HONOUR:   I mean, in a way section 10 does not expressly require reference to it, but as I understand the question it is because of the description of the information that it may have the effect of requiring reference to the criminal intelligence matter.

MR KULEVSKI:   That is correct, your Honour, may it please the Court.

HER HONOUR:   I do not suppose there is any other way of drafting question 5?

MR KULEVSKI:   Your Honour, I think question 5, we decided, falls into the happy category of we all know what it means and ‑ ‑ ‑

HER HONOUR:   Yes.  Well, it is more important that we do really.

MR KULEVSKI:   Yes, I meant “we” communally but I apologise, your Honour, yes.

HER HONOUR:   Yes.  Question 7, what is the point here?  It looks more like a procedural fairness point.  Is that really ‑ ‑ ‑

MR KULEVSKI:   Yes, your Honour, it is the time restriction.

HER HONOUR:   So the procedural fairness point is going to be woven into a Chapter III argument?

MR KULEVSKI:   Well, essentially yes, your Honour.  It is a little bit more than procedural fairness, we would submit, in the sense that the time limits are so limited.

HER HONOUR:   So it affects the Court’s normal procedures.

MR KULEVSKI:   Yes.

HER HONOUR:   I see.

MR KULEVSKI:   And we would argue – we understand there is some contention about this – the inability of the Court to extend that.

HER HONOUR:   Yes, I follow.  Now, the rules require that any documents necessary for the Court to have regard to are to be identified in the special case.  So, do I take it that apart from the application filed – the originating application filed in this matter – there is no other document that the Court will be referred to?

MR KULEVSKI:   Your Honour, technically speaking, I think we would have to include the affidavit of Mr Potts who annexes the originating application.  That is only a three page – that was the basis for this ‑ ‑ ‑

HER HONOUR:   All right.  I am just conscious of the fact that the Registrar was somewhat horrified when the police affidavits were sent to the Registry, they are voluminous, I am told.  But they are not going to form any part of the material before the Court.

MR KULEVSKI:   No.  There are about four boxes of those, your Honour, and we understand that the Supreme Court, in accordance with section 14, has sent those to the Registry but we will not be relying on them in this Court.

HER HONOUR:   Has the special case been filed, by the way?

MR KULEVSKI:   This draft has been filed, your Honour.  We will file a new one by Monday with those corrections.

HER HONOUR:   Just with those few corrections, all right.  Now, in terms of the draft order and the timetable, it becomes – I am assuming that the parties are relatively prepared, reasonably prepared.

MR KULEVSKI:   Yes.

HER HONOUR:   It becomes a little bit tight for the interveners, and there are certain to be interveners in this matter, I would have thought.

MR KULEVSKI:   Yes.  We discussed this with the Senior Registrar, your Honour, and we were told that the suggested listing date was 4 and 5 December and that we should ‑ ‑ ‑

HER HONOUR:   It is a suggested listing date.  It is up to the parties to say whether or not it is practical.

MR KULEVSKI:   Well, it is practical as we are concerned.

HER HONOUR:   Mr del Villar?

MR DEL VILLAR:   It would certainly assist the Commissioner if it could be moved later in that week, but we would be able to manage those days but it would be better for us, for senior counsel, if it could be done later in that week.

HER HONOUR:   Well, I will mention that but I am not sure how adaptable the list is.  There is usually a reason for putting the constitutional matters earlier in the week. 

MR KULEVSKI:   And, your Honour, what we were told was, and from what information we have had, that that would give everyone enough time, and we took the view, and it may be correct and it may be not, but given that in some form some of these arguments have been recently agitated in this Court in Totani and Wainohu and  K-Generation

HER HONOUR:   I am sure the interveners are not going to merely repeat their earlier arguments.

MR KULEVSKI:   No, I accept that, your Honour.  However, we thought that given that they will have had our submissions from 9 November and one would expect that they would be intervening in support of the Attorney-General of Queensland.  They have then had effectively three weeks from the time.

HER HONOUR:   And more of the argument should be undertaken by the Queensland parties, yes.

MR KULEVSKI:   Yes.

HER HONOUR:   All right.  I only raises it because the choice is obviously December or February, but I imagine that with proceedings on foot in the Supreme Court the parties are keen to have the matter resolved, is that the case?

MR DEL VILLAR:   That is my understanding, your Honour.

HER HONOUR:   Is that the case for the applicants as well?

MR KULEVSKI:   Your Honour, as far as we are concerned, we would be equally happy with the first week of February.

HER HONOUR:   All right.  Well, as long as the parties are confident that they have sufficient time to prepare in this matter.  It is not something that should be rushed.

MR SOFRONOFF:   Your Honour, I am sure we can prepare in the time available before December.

MR KULEVSKI:   Your Honour, we feel we have enough time to prepare the matter.

HER HONOUR:   Are there any other matters that we need to discuss then, apart from the terms of the draft order and the timetable?

MR KULEVSKI:   No, your Honour, just to inform the Court also that the fresh section 78B notices went out yesterday.

HER HONOUR:   All right.  In terms of the draft order, there should be inserted a first order ahead of the timetable in terms that the special case filed by the parties be set down for a hearing by a Full Court on Tuesday, 4 December at 10.15 am in Canberra.

MR KULEVSKI:   May it please the Court.

HER HONOUR:   I will pass on to the Registrar, Mr del Villar, your comments about preferences.

MR DEL VILLAR:   Thank you, your Honour.

HER HONOUR:   But for the moment I will simply – the order will reflect the current timetable.

MR DEL VILLAR:   Thank you, your Honour.

HER HONOUR:   Otherwise, there will be an order in terms of the draft initialled by me.  The special case, I take it, will be filed today?

MR KULEVSKI:   May it please the Court.

HER HONOUR:   Thank you, gentlemen.

AT 10.23 AM THE MATTER WAS CONCLUDED