Ravbar & Anor v Commonwealth of Australia & Ors

[2024] HCATrans 61

[2024] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S113 of 2024

B e t w e e n -

MICHAEL RAVBAR

First Plaintiff

WILLIAM LOWTH

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Second Defendant

MARK IRVING KC

Third Defendant

GORDON A‑CJ

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE BY VIDEO CONNECTION

ON FRIDAY, 6 SEPTEMBER 2024, AT 2.30 PM

Copyright in the High Court of Australia

____________________

HER HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR C.L. LENEHAN, SC appears with MS N.A. WOOTTON for the plaintiffs.  (instructed by Hall Payne Lawyers)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia, appears with MR T.M. WOOD for the first and second defendants.  (instructed by Australian Government Solicitor)

HER HONOUR:  I note there is a submitting appearance for the third defendant.  Mr Lenehan.

MR LENEHAN:   Yes, your Honour.  Your Honour will have seen that annexed to our friends’ written submissions are two suggested timetables:  one which would see the matter ready from November and the other which would see the matter ready from December, depending on the Court’s convenience.

HER HONOUR:   Can I ask one question.

MR LENEHAN:   Yes.

HER HONOUR:   The submissions from the first and second defendant suggest that it is a two‑day hearing.  Can I ask two questions of both of you.  Is that two full days?  Is it truly two days?  Secondly, is it two days if, contrary to normal practice, you have given us some additional pages for your submissions?  The reason why I raise those two questions is because although we may work to a November hearing, and that is presently what I propose to do, the answers to both of those questions may impact whether or not November is achievable.

MR LENEHAN:   Your Honour, I think for our part we could complete the matter, subject to perhaps lengthy interventions which the Court would control, in a day and a half.  That was the estimate of myself and Mr Walker when we first considered the matter.  I am not sure if the Solicitor‑General has a different view about length, but I think ‑ ‑ ‑

HER HONOUR:   I will ask him about that.  Just so I am clear, that is a day and a half, including what you expect to be will be interventions.

MR LENEHAN:   Yes.  Your Honour will have seen that there is a head of power question and also ‑ ‑ ‑

HER HONOUR:   There is four.  Yes.

MR LENEHAN:   Those two aspects in particular are likely to attract the attention of our friends from the States.  We would expect they will be interested in other respects, as well.  We would anticipate that because of that there would be at least some, perhaps many, interventions.

HER HONOUR:   Thank you, Mr Lenehan.  Mr Solicitor.

MR DONAGHUE:   Thank you, your Honour.  I, for our part, think that the oral hearing would take at least a day and a half, and I would be concerned that that will not be enough, given the likelihood of a number of the States coming along.  In addition to the four constitutional points that our friend raises, there is also a lurking possibility of a potentially significant argument about parliamentary privilege.

If that happens then that will take time, which means I think we really will be a full two‑day hearing.  It is not possible at the moment, I am afraid – we have not nailed down exactly how that is likely to play out, and the special case negotiations may inform that, as well.  If that happens, I think it is a full two days, and even if it does not happen, I think it may well be more than a day and a half.

HER HONOUR:   All right.  That is very helpful from both of you, thank you.  What I propose to do, then, is this.  Work towards a November hearing, but I am not going to give you a date at the moment, until internally we have worked out whether that can be achieved, given the current listings and arrangements.  Second, the only amendment that I propose to make to what is proposed by what was attached to the Commonwealth’s submissions is to amend paragraph 11 so it reads by 12 noon on 31 October, which I hope will not cause any difficulties.

The third thing is that if at some point early on in this process it is not possible for you to agree a draft special case then the Court would like to know that as a matter of urgency, rather than waiting for it to be too late for the timetable to be affixed or amended.  Ordinarily, we would bring it back and say, if you cannot agree come back once you have agreed come back.  We are not going to do that given the time constraints, but I would ask that both of you and your instructors keep that in mind.  If the thing has hit a hurdle then please come back and tell us.

MR LENEHAN:   Yes, your Honour.

HER HONOUR:   Other than that, is there anything else that I need to consider?  I have told you that we will work towards November, I have told you I cannot tell you what the dates are at the moment, I understand the estimate of two days, and I leave it to you to bring the matter back to the Court if, for some reason, the timetable is not going to be met.

MR LENEHAN:   There is nothing further from our end, your Honour.

HER HONOUR:   Mr Solicitor?

MR DONAGHUE:   Also nothing further from us, your Honour, no.  Thank you.

HER HONOUR:   All right.  In those terms, I do not propose to read out, with you sitting here, paragraphs 1 to 12 with the proposed amendment to paragraph 11.  I will have them incorporated into the transcript as directions that have been made in the proceedings:

1.By 12.00 pm on 9 September 2024, the plaintiffs are to write to the defendants seeking particulars of the defendants’ response to specified paragraphs of the statement of claim

2.By 4.00 pm on 13 September 2024, the plaintiffs provide to the defendants a draft special case.

3.By 4.00 pm on 16 September 2024, the plaintiffs provide to the defendants a draft special case.

4.By 4.00 pm on 20 September, the first and second defendants provide to the plaintiffs a draft special case in response.

5.By 4.00 pm on 27 September 2024, the plaintiffs are to file and serve the special case.

6.By 4.00 pm on 9 October 2024, the plaintiffs are to file and serve written submissions‑in‑chief.

7.By 4.00 pm on 11 October 2024, the written submissions of any intervenors in support of the plaintiffs are to be filed and served.

8.By 4.00 pm on 23 October 2024, the defendants are to file and serve written submissions in response.

9.By 4.00 pm on 25 October 2024, the written submissions of any intervenors in support of the defendants are to be filed and served.

10.By 4.00 pm on 30 October 2024, the plaintiffs are to file and serve written submissions in reply.

11.By 12.00 pm on 31 October 2024, the plaintiffs are to file and serve the joint book of authorities.

12.The matter be listed for hearing on an estimate of two days during the November 2024 sitting period.

MR LENEHAN:   Thank you, your Honour.

MR DONAGHUE:   If the Court pleases.

HER HONOUR:   Anything else?

MR LENEHAN:   No.

MR DONAGHUE:   No, your Honour.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 2.36 PM THE MATTER WAS ADJOURNED