Ruddick v Commonwealth of Australia

[2021] HCATrans 202

[2021] HCATrans 202

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S151 of 2021

B e t w e e n -

JOHN RUDDICK

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON MONDAY, 29 NOVEMBER 2021, AT 11.01 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR R. SCHEELINGS appears for the plaintiff.  (instructed by Speed and Stracey Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia, appears with MR B.K. LIM for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Scheelings, I have you appearing by audio, but no video link.

MR SCHEELINGS:   Certainly audio for the plaintiff, your Honour - I understood for everyone, but perhaps not.

HIS HONOUR:   Yes, all right.  Mr Scheelings, I have just received an affidavit - I have not had a chance to read it all yet – of about 148 pages.  Perhaps we could just start with it – if you could let me know what it contains and what it is about.

MR SCHEELINGS:   Yes, your Honour.  I appreciate it is late notice and I do not think I will read it.  What it contains, very briefly, is correspondence in relation to the issue around paragraphs – before I do that, perhaps I could take your Honour to the very last page which is the last exhibit ‑ ‑ ‑

HIS HONOUR:   Yes.

MR SCHEELINGS:   That is one document I will read and since it is a letter from the Australian Government Solicitor, and it is referenced in my friend’s submissions, presumably there will be no objection to my taking your Honour to that.  Perhaps it ought to have been attached to my friend’s submissions.  The reason I take your Honour ‑ ‑ ‑

HIS HONOUR:   Yes.  Just tell me what it is about, please.

MR SCHEELINGS:   Yes.  The reason I take your Honour to that letter is that it outlines the very confined scope of the remaining factual dispute in this matter.  Your Honour will see four bullet points.

HIS HONOUR:   Yes.

MR SCHEELINGS:   This is the Commonwealth’s position.  The plaintiff agrees to “the omission of paragraph [111]”, so the fourth bullet point is no longer in contention.  The second bullet point in relation to paragraph 66 is fully addressed in the plaintiff’s written submissions and the plaintiff has nothing further to say on that.  This Court recently expressed a desire to see greater precision in the articulation of – or ventilation of adjudicative fact so that is the submission in relation to the word “suggests” which the Commonwealth presses.  For that word in that paragraph the plaintiff presses the more neutral language so that the whole document is consistently neutral in its language as befits a statement of agreed facts.

That leaves the last two bullet points.  The first one refers to paragraphs 58 and 59 and the third paragraph refers to 73.  Although that is three paragraphs, it is one joint issue.  The issue is that the Commonwealth wishes to have facts related to a relative position to a major party included in the special case.  The plaintiff has no objection to that of course and that is in the special case.  The plaintiff would also like to also have facts related to relative position, not to a major party, but relative position on the ballot paper.  Those three paragraphs are related to that factual issue.

For a week there has been a dispute about paragraph 73.  For various reasons which we do not need to go into, the Commonwealth does not want 73.  Various techniques were sought to be presented to the other side to convince them to put a fact of that nature in.  Towards the end we received instruction that we would use the same dataset and the same averaging technique as the Commonwealth has used to put its facts in in relation to relative position to major political party.  I just repeat that - using the same dataset and the same averaging techniques, although less convenient for us, we were happy to make that compromise to at least get a fact of that nature into the document. 

Now, that is still resisted.  Your Honour will see in that letter, and that letter is not in confidence, that legal representatives for the respective parties conditionally agreed to that.  Your Honour will note that there is no express reason given in that letter by the Commonwealth as to why - perhaps an implied lateness argument, but I think I have satisfactorily explained that issue – this is not a late point, but a point that has been agitated for a while - but there is no express reason and your Honour will note this in that letter, and there is no express reason and your Honour will note that in the Commonwealth’s submissions before your Honour as well as to why those facts are not agreed.

HIS HONOUR:   All right.  So, is there anything else you want to say, Mr Scheelings?  This is the only remaining issue then between the parties that needs to be settled before the special case is finalised and the matter can then progress to a hearing?

MR SCHEELINGS:   That is so, your Honour, and we would just say with respect to the first and the third bullet points and the paragraphs referenced

therein, that in the absence of a credible explanation for opposition to those facts, not including tardiness, which has now been explained, and we say - we submit there can be no credible explanation.  There is the usual proviso at the beginning of the special case document regarding non‑agreement to relevance of facts. 

Our client needs those facts, either in the form of 73 or in the compromise form of 58 and 59, and we say that, your Honour, on the face of the documents before the Court in this directions hearing can infer an implied consent to those facts, so would your Honour be minded to grant a direction for the inclusion of paragraphs 58 and 59, and if they were included, we would agree with the omission of paragraph 73.

If your Honour is not minded to give such a direction then we would say there is a suggestion - we understand it not to be pressing or an application for remittal - we would say that although an oral hearing is not required to be given under section 44 of the Judiciary Act, it would be a matter where it should be given with the parties to put on submissions properly articulating facts and putting on submissions as to why it should or should not be remitted in circumstances where, as your Honour well knows, if it gets remitted and a lower court is not sufficiently expeditious and a conclusion of invalidity is found after the election, the consequences of significant uncertainty for the Parliament and, indeed, the increased case work for this Court in its role of the Court of Disputed Returns is clearly a real prospect.

In those circumstances, the Court would be likely to want to keep the matter within its own domain, particularly given the extremely confined nature, the remaining…..

HIS HONOUR:   Yes, thank you, Mr Scheelings.  Mr Solicitor, is it correct that the only remaining issues then between the parties are the relatively confined issues about paragraph 66, on the one hand, and paragraphs 58, 59 and 73 on the other?

MR DONAGHUE:   Yes, your Honour.  That said, they are perhaps less confined than our friends would have you believe.

HIS HONOUR:   Paragraph 66, I must say, I do not quite understand what the dispute is between the parties.  It is just about an inference, is it not?

MR DONAGHUE:   Well, your Honour, can I go back a step, if I might.  I will not detain your Honour long with this, but ultimately, that is so.  Really, all of these facts in the special case are about providing a proper factual foundation for the inferences that the parties seek to have drawn, and from the Commonwealth’s perspective, the critical inference that needs to be able properly to be drawn by the Full Court in order to determine this case is whether the facts are such that the Court can infer that the similar names of the Liberal Democratic Party and the Liberal Party cause a degree of voter confusion to which the Parliament can properly respond.  That is what we submit.

HIS HONOUR:   That is the inference that you seek to have drawn.

MR DONAGHUE:   Yes.

HIS HONOUR:   You do not need those words in paragraph 66.  With or without them, you will presumably still be inviting the Full Court to draw that inference.

MR DONAGHUE:   Your Honour, that is certainly so, but the difficulty that we have is that the disputed paragraphs, and these issues – the opening words of 66 are connected, because 66 is dealing with the 2013 Senate election of Senator Leyonhjelm, which is, we submit, the clearest case of voter confusion caused by the names of these parties, and the fact that the plaintiff is resisting agreement to what, in our submission, is a very obvious inference, indeed, one that Senator Leyonhjelm…..

HIS HONOUR:   Mr Solicitor, I do not want to interrupt you, but why cannot the Commonwealth just rely on rule 27.08.5?

MR DONAGHUE:   Well, your Honour, if it was just 66, possibly we could.  The problem is ‑ ‑ ‑ 

HIS HONOUR:   But I mean – let us just deal with 66 first.  It is not just a question of possibility, what is the difficulty with relying on 27.08.5?  It does not need to be in – the words do not need to be in there.  If that is going to hold up a hearing of this matter in February, particularly a matter of this urgency, then I am just wondering why the Commonwealth is resisting simply putting in the facts and then inviting the Court to draw the inference that it wants.

MR DONAGHUE:   Because, your Honour, what we apprehend underlies this disagreement is that our friends will show up in February and submit to your Honours that on the facts we just cannot tell, on this special case, whether there is voter confusion or not.  There are too many things going on, too many different numbers in different State elections over different periods of time, different columns, different positions on the ballot paper, and you just cannot tell.  We will say you can tell, you should infer, and therefore we will be having a fight, a factual fight, before the Full Court about what the special case actually shows, when the answer to that factual fight will be critical to the answer to the constitutional question.

So that – if our friends actually want this case to be decided on the basis that we just do not know whether there is any degree of voter confusion, then, in our submission, there is a factual dispute between us that needs to be resolved.  It is not appropriate to leave that dispute to the Full Court for us to argue there about whether there is voter confusion or not.  The argument in the Full Court should be, is the Parliament’s response to the voter confusion valid or not, but our friends apparently do not accept that there is voter confusion at all, any basis to accept that there is voter confusion, and so 66 is indicative of that.

HIS HONOUR:   But are all the facts of voter confusion that you seek to rely upon in the special case at the moment?

MR DONAGHUE:   Yes.  But ‑ ‑ ‑ 

HIS HONOUR:   If that is the case, what would there be a trial of?  There would be a trial only of whether an inference can be drawn from those facts about whether voter confusion arose and that is exactly what 27.08.5 provides for.

MR DONAGHUE:   No, your Honour.  That would be right, your Honour, save for the additional facts that our friends are seeking to have inferred because your Honour asked me, do we have the facts we need, and my answer is yes, but if those additional facts go in, then our friends will say, from those facts, the explanation is position on the left or right of the ballot paper, not position to the left or right of the Liberal Party and your Honours and the Full Court will have no way to know which of those two inferences is the right one to draw. 

So, that is the essential reason for the disagreements between us, because our friends are seeking to introduce another variable that would undermine the inference that we say otherwise can properly be drawn in exactly the way your Honour puts to me from the facts that are in the special case.  So, if that ‑ ‑ ‑ 

HIS HONOUR:   Mr Solicitor, do you accept – this is the point about paragraphs 58, 59 and 73.  Is that the additional ‑ ‑ ‑

MR DONAGHUE:   That is right, that is the additional issue, yes.

HIS HONOUR:   The additional fact.  So, you do not resist the addition of those facts on the basis that you dispute the facts, at least in one version of the alternatives, but you resist putting them in because of the inference that the plaintiffs will seek to draw from them.  Is that right?

MR DONAGHUE:   Precisely.  They will seek to draw a rival inference, and there will be no way to resolve the battle between those inferences in the Full Court.

HIS HONOUR:   But that is not a question of a trial of facts, that is a question of a trial of inferences.  The parties are all then agreed, as I understand it, the parties are in furious agreement as to the facts that go into the special case.  What the disagreement is about is what inferences should be drawn from the facts.  One does not usually have a trial of inferences, and the point that I am trying to make is that 27.08.5 is there for the very reason that the Full Court needs to be able to decide whether or not an inference is going to be drawn rather than remitting a matter to draw inferences from the agreed facts.

MR DONAGHUE:   Well, your Honour, I would rather put it, remitting a matter for the relevant facts to be found so that we know what they are when we argue in the High Court, because normally in – in my respectful submission, the Court ‑ ‑ ‑ 

HIS HONOUR:   Sorry, Mr Solicitor, I thought you had accepted we know what all the agreed facts are.  The only dispute between the parties is what inferences about voter confusion are or are not to be drawn from those agreed facts?

MR DONAGHUE:   Your Honour, in my respectful submission, knowing what the underlying primary data is – so take, completely for the sake of argument, 58.5 of the special case, which says that in the 2016 election, it gives information about four States and says that the Liberal Democratic Party appeared in the 36th of the 39 columns, 20th of the 22 in Tasmania, 11th of 24 in South Australia, and 26th of 29.  Those are facts.  I do not dispute that any of those things are true.  But that is meaningless in terms of the constitutional argument.  What your Honour is actually – what are you supposed to do with that information about the column numbers?

I could give your Honour many examples of that.  There are facts that are there where I strongly apprehend that in argument in the Full Court someone will say to me, how on earth are we supposed to know what to make of the significance of those column positions, or whether you are on the left or right of the ballot paper in Victoria in 2013 versus in the 38th column in 2019.  It is just raw data that is meaningless without being processed.

HIS HONOUR:   Yes.

MR DONAGHUE:   In our submission, if it cannot be processed by agreement, it should be processed by a trial judge making findings about it, because otherwise we will be entirely at sea in the Full Court argument as to how you actually decide whether there was voter confusion or not, and what our friends are seeking to do with that kind of information.

HIS HONOUR:   I completely understand the submission.  The difficulty that I am having at the moment is whether this exercise is going to be a sufficiently large exercise of drawing an inference that it is something that a trial judge ought to do, particularly in a matter of this urgency, or whether the invitation to draw inferences is not something that the parties could do in the process of, say, 20, 25 minutes of submissions before the Full Court.  Because one possible difficulty with sending this to a trial judge, either remitting it or having a judge at first instance in the High Court deal with it, is that, presumably, if the inference that is drawn is unfavourable to one party, then that party would seek to appeal the inference that is drawn, if there is not enough strength to that inference, and so the Full Court will have to do exactly the same exercise in any event.

MR DONAGHUE:   Well, it would have to decide whether error had been shown in the findings of fact that had been drawn, but it would not necessarily – it depends how a trial plays out, your Honour, but it may well be that if our friends want to say that the apparent effect based or being left or right of the Liberal Party is not actually the explanation for the difference in their vote, that it actually depends on something else, that we would be able to lead evidence from a psephologist in the Federal Court who said I have analysed this data and actually that is not right. 

For all of these reasons, and the donkey‑vote position accounts for about one per cent, there is no other explanation for why they got nine per cent in Senator Leyonhjelm’s election when they usually get two per cent and they are the only party out of all of the parties that contested the last four elections which have the phenomenon that if they are left of the Liberals they get more and if they are right of the Liberals they get less.  So that would be –

HIS HONOUR:   That is a new primary fact, then.  Your answer to my question earlier was that both parties have, on the face of the document, all of the primary facts that they need, and that the dispute between the parties is one about inferences to be drawn.  Now what you are saying is that the Commonwealth may wish to put further primary facts in about the role or the meaning of some of these figures.

MR DONAGHUE:   Well, your Honour, the fact I was just referring to is paragraph 57 of the draft.  So, it says, in the last four elections, the Liberal Democrats appeared above the line, drew a position to the left, received a higher share of the vote when they drew to the right, that is not the case for any other party.  So, we have that fact.

HIS HONOUR:   Yes.

MR DONAGHUE:   On the basis of that fact, I would invite the Court to draw an inference that that fact explains the difference in the vote share.  But what I apprehend is that Mr Scheelings will say, on the basis of 58 and 59, but there is another variable that that does not take into account, its position on the ballot paper, and your Honours cannot know.  My concern is that in asking your Honours to resolve – we can make submissions about it, but in the end it may well be that members of the Court will say we do not have the expertise to crunch that data in a way that allows us to answer.

So if the facts that Mr Scheelings is seeking to add are not there, then it will be a much more straightforward inferential task for the Full Court to draw, and I was content to run the case on the basis that we would say, from the primary facts there, the natural inference to draw on is the inference I have referred to, and the constitutional issue would be reached.  But if the Full Court says, well, actually, now I have brawling parties before me who do not agree about whether there is actually factually voter confusion at all, then, in my submission, your Honours will not know whether there is a problem to which the Parliament was responding.  It will be the very kind of factual dispute that the Court often urges parties to ensure that they avoid in a special case procedure.

I understand what your Honour says about it being a matter of inferences, but the raw data itself often will not help the Court very much.  Another example of this that is ringing somewhat in my mind is the Palmer case from a couple of years ago, where there was a lot of raw data about infection figures in particular States and the rate of growth of cases and matters of that kind, and the Chief Justice said, at one point, when the parties came before her with that special case, what on earth am I to do with that, they are facts but I am not an epidemiologist, and how can the Court resolve what to draw from those facts without the benefit of assistance?  It might be easy if there is not a dispute, but the moment there is a dispute between the parties it becomes something where the special case procedure just is not fit for purpose, in our submission.

HIS HONOUR:   Well, can I ask a simpler question?  Do you disagree with the proposed facts at 58, 59 or 73?  What is the Commonwealth’s position about those proposed facts?

MR DONAGHUE:   I think your Honour is asking me, do I disagree with the actual words that are there.

HIS HONOUR:   With the primary facts.  Now, there may be a question about what inferences you can draw from them, and it sounds like there is a very significant question about what inferences you can draw, but as to those primary facts, does the Commonwealth disagree with 58, 59 or 73?

MR DONAGHUE:   If – take 73, for example, your Honour - 73 is so vague I cannot know whether I agree or disagree with it.  It is not helpful.

HIS HONOUR:   So which version – can I just clarify, which version of 73 am I looking at?

MR DONAGHUE:   Sorry.  Your Honour, I am looking at the draft version which was exchanged between the parties on a “subject to instructions” basis but which has nevertheless ended up before your Honour, which has a paragraph crossed out - a three‑line paragraph above 73.  That is what I was referring to.

HIS HONOUR:   Yes, so the paragraph beginning with “After his election”?

MR DONAGHUE:   Above that, your Honour.  It says:

In Senate elections, being relatively more to the left on a ballot increases the likelihood of an increased vote share.  This is true for all parties, though the effect is greater for minor parties and independents.

HIS HONOUR:   I see.  That is the ‑ ‑ ‑ 

MR DONAGHUE:   That is the disputed paragraph.

HIS HONOUR:   That is the proposed paragraph 73.  All right.

MR DONAGHUE:   It is, as I understand it, yes, and it says, “relatively more to the left” and it gives an increase of an unspecified kind in voter share.  So, there is a question of whether facts are true, and there is a question of whether facts are at a sufficient level of precision to be helpful.  That fact – all of this, in our submission, is about – these changes that are in dispute between the parties are about the plaintiffs seeking to muddy the waters about whether or not their name is misleading or not, when that is the thing that the case is about.  So, muddying of the waters helps them and hurts ‑ ‑ ‑

HIS HONOUR:   But what about 58?  What about 58 and 59, then?

MR DONAGHUE:   Well, 59.3 to 59.5 are the parts that are in contention.  They are in contention because they add a left‑half, right‑half variable into the facts.  In the version that I think your Honour has, I hope your Honour has, you have two bullet points under 59.3 - is that right, your Honour?

HIS HONOUR:   Yes, I have, yes.

MR DONAGHUE:   Yes, so that was our amendment to our friend’s paragraph in an attempt to make it as accurate as we could.  I do not think I can submit that those facts are in contest insofar as they go, but they will, I think, inevitably result in a submission that – the inference that your Honours might otherwise draw from 57 and 59.1 and 59.2 cannot be drawn because of a rival inference based on left‑half, right‑half. 

HIS HONOUR:   What it comes down to then is if 73 is left out, and Mr Scheelings will correct me in a moment if I have misunderstood him, but my understanding of his submission is it was 58 and 59 or 73 - so if 73 is left out, the primary facts in 58 and 59, there is no dispute about those - what the Commonwealth’s concern is is that there is going to be a substantial dispute about inferences that are to be drawn from all of the primary facts, and that maybe the exercise of drawing the inference is one that would be larger than is contemplated by rule 27.08.5.

MR DONAGHUE:   Or that is one that the Court says we cannot do, you should not have put us in the position of seeking to resolve this constitutional case on the basis of these facts because they are not sufficient to enable us to resolve the constitutional issue.

HIS HONOUR:   But, Mr Solicitor, if the Court cannot do it, then no trial judge could do it.  The reason why the Court would be unable to do it is the same reason a trial judge would be unable to do it, which is that more facts are needed, or evidence needs to be given, as to the manner in which the inference can be drawn.  So, what the dispute really is about, as I understand it, it is not about what facts need to be included in the special case, it is about whether evidence needs to be led in order to understand the inferences to be drawn from the special case or not.

MR DONAGHUE:   Your Honour, I think that is a fair way of putting it, subject to this, that if one did not have the paragraphs that were being added - sought to be added by our friends, then that problem would not arise, because you would not have the rival inferences, and so you would not need the expert.  If those facts are in play, then you need more to help you choose between the two inferences, and that is why we said to our friends, we cannot agree to this inclusion, if you press for it we see no way forward but to remit so that that kind of process can be undertaken with some expert assistance to resolve the inferences.

HIS HONOUR:   Yes, that is very helpful, but as I understand it now, I think that position really is putting the cart before the horse.  I think what would assist the Court is if the parties could agree to the special case that they want, and if the parties are agreed on all the facts then the special case gets agreed and then the separate question is, on that special case, does there need to be a remitter before the Full Court can hear the special case, or is the Full Court equipped to draw the inferences that it needs, or that are sought, by either or both of the parties on the special case where the primary facts are as agreed by the parties? 

This is a dispute that seems to be a dispute about facts, but it is not really, because, as you, I think quite rightly said, there is no dispute about 58 and 59, what the dispute is about is whether or not the Court, this Court, is equipped to draw the inferences that you seek to be drawn, to have drawn, from the agreed facts in the special case.

MR DONAGHUE:   Yes, your Honour.  My concern is this, that ultimately the special case procedure in rule 27.08.1 is a procedure that turns upon the agreement of the parties as to the facts.

HIS HONOUR:   Yes.

MR DONAGHUE:   That is why from time to time the parties find themselves on the receiving end of criticism, that they have not agreed appropriate facts or facts that allow the issues to be properly criticised, and I, frankly, am concerned about being a party to agreeing a special case in circumstances where I see very real potential for the whole procedure to miscarry because we have agreed, and your Honour would understand, it is often practical in sentence to do this, one tries to compromise to reach agreement and one ends up with a document that actually is not helpful in terms of making sufficiently clear what the Court will need.  That seems to me, in my respectful submission, to be where we are now.

HIS HONOUR:   Yes, I understand that, but I think the solution to that is not to refuse to agree to facts that you do agree to.  The solution is to reach agreement as to those facts which you can reach agreement to, which it seems to me here to be just about everything, and then to make a submission at that stage that on the special case as agreed, the Court is not in a position properly to hear it and to draw inferences because evidence is going to be required about the manner in which those facts need to be understood or interpreted, and that the Court cannot do that simply by submissions from the parties.  I think that is where we have got to, is it not?

MR DONAGHUE:   Well, your Honour, that requires us to agree to a document that we do not agree is a proper – contains all of the facts necessary in order to resolve the legal question because ‑ ‑ ‑ 

HIS HONOUR:   Then the answer is you agree to those facts that you do agree to, and then you provide for what facts it is that you say are also needed, and have not been agreed to, in order for the Court to be able to deal with it.  But at the moment, all I have is assertions that something more is required for these facts to be understood by the Court in the translation of the special case.

MR DONAGHUE:   Your Honour, what has happened is that at, I think, midnight on Thursday night, our friends asked for the inclusion of these now controversial facts to ground an inference that we do not accept is properly open and that undermines the inference that to that point we had been confident could properly be drawn from the special case.  So, we are now grappling with a muddying of the waters that has arisen quite recently, and that we think makes it, what we thought was a proper factual foundation for the case, now problematic.

So, we do not have the evidence that we would need, assuming one can even get such evidence, to disentangle the case that we apprehend the plaintiff is now seeking to advance about positioning on the ballot paper.  That is why I am being a bit vague, your Honour, but what we can say is that when one looks at this, and if your Honour just read 57 and 59.1 and  65 and 66, I could very easily say to your Honour, well, under the rules, the Court can draw any inference that could have been drawn if it was proved at trial - if these facts were proved at trial, your Honours should find that appearing to the left of the Liberal Party versus to the right does lead to at least some level of voter confusion because we have a consistent pattern that explains votes for the Lib‑Dems being higher when they are to the left rather than the right, and no other fact in the special case that would cast doubt on that inference that you are seeking to draw.

It is that last part that has fallen over in the last day or two.  I am in no way undermining the urgency of this case, we appreciate that it needs to be decided.  We just think that it needs to be decided on a factual record that properly – it may be that if our friends really do want to run the case that says this misleading effect, that Senator Leyonhjelm admitted, and that the JSCEM found, is explained by something else, that they have to take the consequences of that decision.  If they want to run a factual case that creates a question mark about whether there really is voter confusion then we need to be able to resolve that dispute before we can get to the constitutional issue.

So I am not enthusiastic about remittal, your Honour.  It is just that I am less enthusiastic about the special case as a procedure to solve the problem if it contains these additional facts and that is why we invited our friends not to press them.  If our friends chose not to press them, we would

agree the special case, but if they do press them, then it does seem to require some further work to try to disentangle the effect of the argument they wish to raise on the inference of voter confusion that would otherwise appear. 

So I hope I am not sounding instructive, your Honour.  It is very much not our intention to do that, but it does not seem to us it serves anyone for the matter to go before the Full Court in February and to fall over because the facts are not adequate.

HIS HONOUR:   Thank you, Mr Solicitor.  Mr Scheelings, were you able to hear all of that?

MR SCHEELINGS:   I was, your Honour.  To be clear again, paragraph 111 is omitted, 73 is omitted if paragraphs 58 and 59 are included, and they were conditionally accepted subject to ultimate client approval.  No express reason was given for the lack of agreement to those paragraphs 58 and 59, and your Honour has now heard expressly that no disagreement can be given.

HIS HONOUR:   Mr Scheelings, as you will have heard me say to the Solicitor, I do not think this is really a dispute about facts, or even about facts to be included in the special case.  What the dispute seems to me really to be about is that, given the lateness of the proposed facts that you now seek to include, the change in the nature of the case that the Commonwealth will seek to run may require it to call evidence which would assist the drawing of any inference about voter confusion. 

At the moment, assuming all of the facts, putting aside 111 and 73, assuming that all of the other facts are not in dispute, so that they can be included in a special case, what the issue boils down to is whether or not this special case is one which, by itself, is appropriate for a Full Court to draw inferences without the assistance of any evidence that might have been given before a trial judge.

MR SCHEELINGS:   I would make two points, your Honour.  We are in the original jurisdiction of this Court.  If it goes before the Full Bench it remains in the original jurisdiction of this Court.  I recall the case of the Citizenship Seven cases, where one senator, Senator Roberts, was put to a trial of facts before his Honour Justice Keane in Brisbane, who made findings of fact.  That did not prevent all parties from making submissions as to what inferences should nonetheless be drawn by the Full Bench from that - his Honour Justice Keane’s judgment and findings and including submissions on those findings. 

What we have here – let me take a step back.  There is a danger that my friend’s submissions are adjacent to an acknowledgment that there was no basis for the Parliament to pass this amending Act, and that there appears to be, or there is a fear that there may be a gap - and I choose that word carefully - in the special case as it is and that they have the onus and that they should have the opportunity to go to a fact‑finding judge to either put on more evidence and/or seek a finding of an inference, which is a remarkable submission when it is put expressly like that.

My understanding is that there is little to no jurisprudence on that.  It may be that if that issue came up in a different type of case, the Court would not automatically remit, it would want to have proper submissions on all sides and for that issue to be properly ventilated.  But in this kind of case, where the urgency is paramount and where the consequences for a delayed finding of invalidity of an Act under the Constitution has such significance for the polity and, indeed, for this Court, we would submit that in the particular circumstances of this case, that submission would not be entertained on this occasion.

HIS HONOUR:   Mr Scheelings, what at the moment I am inclined to do is to stand this matter over, perhaps till this afternoon, to have the parties, by their counsel, confer as to what the agreed primary facts are for the purpose of the special case, but as I understand it from submissions, those primary facts are virtually agreed, and then to have submissions from the parties on the particular issue of whether, in light of those agreed primary facts, the inferences that are sought to be drawn by either or both of the parties are inferences which require the giving of evidence or the making of lengthy submissions that would be more appropriate to be determined on an urgent basis by a trial judge rather than by the Full Court.

I say that in circumstances in which provisionally this space has been made to list this matter for a day’s hearing, but if the submissions or any issues as to evidence were required, that would not be able to be dealt with before the Full Court during a day’s hearing, then that would be a very strong matter, or a strong reason for the matter to be remitted to have an urgent finding as to inferences that are to be drawn from the facts in light of any evidence that needs to be led.

MR SCHEELINGS:   As the Court pleases.  I do feel also that I should add on the record and for the Court’s notice the following issue.  I only raise it, I do not seek anything further from it, and that is this, that my client has received a notice from the Australian Electoral Commission that an objection was lodged by the Liberal Party of Australia and that there are certain strict timelines now involved under the relevant provisions of the Commonwealth Electoral Act that will lead to my client’s deregistration in circumstances where there is a federal election in the offing, New South Wales by‑elections, and a South Australian government election early ‑ ‑ ‑ 

HIS HONOUR:   Yes, I saw that in the affidavit material, and that is one of the reasons why this matter assumes a very high degree of urgency.

MR SCHEELINGS:   Right.  I can also inform the Court that the Democratic Labour Party has received such a notice and it is likely that the New Liberals will as well, and the reason I raise it for your Honour is that we are still seeking instructions, but there may be injunction applications to this Court this week.

HIS HONOUR:   Yes.  Mr Scheelings, would you, if I were simply to stand this matter down for the parties to agree, at least, if I can put it this way, the form of the special case and, subject to submissions about whether a special case in that form needs to be remitted for the finding as to any inferences to be drawn from the primary facts in light of any evidence that might need to be led, would you be available at 1.00 pm Brisbane time this afternoon?

MR SCHEELINGS:   Yes, your Honour.

HIS HONOUR:   Mr Solicitor?

MR DONAGHUE:   Your Honour, I would be available then, certainly.  I do not want to retrace the ground I have already addressed, but if it be the case that our position, as I think your Honour aptly summarised it, is that if the additional facts that our friends wish to go in creates a situation in which further evidence is needed to assist in the identification of the inference, I am very concerned about agreeing a special case which will then look like it is a complete document in circumstances where our position may well be that more is needed. 

So I am not quite – well, in my submission, I am very happy to engage in discussions with our friends of the kind your Honour has proposed, but I would not wish to say, well, we have actually agreed this special case in circumstances where it contains the paragraphs we object to, but it does not contain any way of answering the debate about the inferences.

HIS HONOUR:   The difficulty is the “more” factor - the difficulty with that, from your position, is that until you know what the additional evidence is going to be you do not know whether there are any missing primary facts which will allow or prevent the inferences based upon that evidence.

MR DONAGHUE:   That is exactly right, your Honour, yes.

HIS HONOUR:   That was the reason I expressed it as agreement to a provisional special case.  It is provisional in the terms that the issues related to whether inferences can be drawn are issues that may throw up further primary facts that are needed.

MR DONAGHUE:   Yes, exactly.

HIS HONOUR:   At the moment it is just is not clear to me how difficult, one way or the other, it will be to draw inferences from the primary facts or, as you say, whether there are any missing primary facts.  I am not seeking to lay the blame for this on either party, particularly given how late it has been that these issues have arisen, but it is something that needs to be dealt with very rapidly now.

MR DONAGHUE:   Yes.  Would your Honour be prepared to give us – I am just conscious we might need to do a bit of work to try to assist your Honour in laying out this issue - could you give us another hour?  Would that be possible?  So to list the matter at 2.00, rather than 1.00 Brisbane time?

HIS HONOUR:   Yes.  All right, 2.00 pm Brisbane time, and if the matter does then need to be either remitted or determined by a single judge, then there would also need to be some consideration to how that can be done as rapidly as possible.

MR DONAGHUE:   Of course, your Honour.

HIS HONOUR:   Hopefully preserving a February hearing date before the Full Court.

MR SCHEELINGS:   Your Honour, just to – in terms of being here, an affidavit was put on this morning.  There is now time for my friend and, of course, the Court, if minded, to peruse that affidavit in some greater detail.

HIS HONOUR:   Yes, thank you, Mr Scheelings.  I will adjourn until 2.00 pm Brisbane time.  Thank you both.

MR SCHEELINGS:   If the Court pleases.

AT 11.49 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.58 PM:

HIS HONOUR:   Thank you both for coming back.  Mr Scheelings, I have received your submissions about two or three minutes ago, which, no disrespect, quite succinctly summarise the position that you had outlined this morning.  I think it would probably be useful to start with the Solicitor‑General at this stage, to see what the Commonwealth’s position is in relation to the inferences and the issues that were outlined this morning.

MR DONAGHUE:   Thank you, your Honour.  Your Honour, can I take things in stages.  Your Honour asked that the parties go away and try to reach agreement on the provisional special case, as your Honour framed it, and we have done that, and, as your Honour I think anticipated, subject to the matters I am about to come to about additional evidence, we were able to bed those matters down in relation to 58 and 59 and 66.  I do not know whether that document has made its way to your Honour, I suspect it probably has not, but it is substantially in the term that your Honour has already seen with some tweaking of 66.

HIS HONOUR:   Yes.

MR DONAGHUE:   Having said that, though, while we were able to bed that down, the Commonwealth’s position is that it could not agree to a special case in that form for the reason that I foreshadowed this morning, that there would be a need, in our submission, for additional evidence, specifically being expert evidence as to whether voter confusion appears to be affecting the vote share of the Liberal Democratic Party when it appears to the left of the Liberals, whether or not there are other variables that might also be in play, including the left/right side of the ballot issue that our friends are raising.

So, effectively what I am submitting is that once the left/right side of the ballot paper is introduced into the special case as it now is in paragraphs 58 and 59, there are two, at least two, possible variables in play that might explain the different vote share issues, and I will take your Honour to the special case in a moment to give you a practical illustration of what I am talking about, but, in effect, we submit that what is needed is an expert who is likely to want the raw data rather than the averages that you have in the document at the moment, and might also need other facts, and we will not know that until we are able to engage with an expert.

But whatever it is that they will need, it should be possible, in our submission, for an expert to disaggregate the different influences on the voter share and to give evidence as to whether one of the variables in play that explains the different votes, different vote shares, is voter confusion.  If we could get to that additional point, where an expert could say, well, one of the things that explains these numbers is voter confusion, and a court, whether this Court or a Federal Court made a finding to that effect, then if that finding could supplement what is in the special case, and I then would not have an objection to the matter going forward. 

But without that supplementary evidence we remain extremely concerned that our friends will say before the Full Court, you just cannot tell whether voter confusion is at play here or not, and therefore we will be fighting about the facts in circumstances where ‑ ‑ ‑ 

HIS HONOUR:   Why does that, on your case, matter?  When one is looking to the questions of the validity of the legislation, does it matter whether, at the time the legislation was enacted, it was possible to know whether as a matter of fact there was voter confusion and the extent to which the voter confusion arose?

MR DONAGHUE:   Well, your Honour, we would say that it is sufficient for Parliament to respond, in effect, to a felt necessity.  So that you see in the special case, if your Honour has the document, I think it is paragraph 107, at least of the current draft, but there is a Joint Standing Committee report – it is 107 in the document your Honour has, I think, following the conduct of –

HIS HONOUR:   I should say I now have the provisional special case that has just been provided.

MR DONAGHUE:   Excellent, thank you, your Honour.  Well, it is 107 in that as well, and you will see that is – this is the report that precedes the enactment of the impugned provisions, and it says in 7.41 and 7.42 that there is frequently commentary about voter confusion, both with the Democratic Labour Party and the Liberal Democratic Party, and it says in 7.42 it:

can make a few percentage points difference to the result in a seat, because voters have been misled.

That is ultimately our case.  We submit, well, Parliament believes that there is a voter misleading problem and it is responding to that problem of voter confusion by enacting this legislation, and I would ultimately say that that is enough, but there are – I am not sure that our friends would accept that that is so, and there are certainly some cases in the Court, and I am thinking particularly of Unions (No 2), where some members of the Court, at least, have seemed to proceed upon the basis that there might actually need to be some evidential foundation to support a proportionality analysis of the kind that might be in play in this case. 

It is to cover that off that we want to make sure that the special case provides a sufficient foundation to show that there is a problem.  We do not need to quantify the problem precisely, but we need - we thought we needed to ensure ‑ ‑ ‑ 

HIS HONOUR:   But that is really why I am asking about the expert evidence, because if all the Commonwealth considers that it needs for its case is to establish that there is an evidentiary foundation for a felt necessity about voter confusion, then would an exercise of sending this matter to a trial to be determined upon expert evidence as to the extent to which actual voter confusion arose serve any purpose for the requirements under 27.08.3 that a statement of case state the facts that are necessary to enable the Court to decide the questions raised?

MR DONAGHUE:   It depends, your Honour, whether a felt necessity would ultimately be enough, or whether there has to be some objective fact to underpin the felt necessity.  So the felt necessity we can get from the parliamentary reports, but the actual voter confusion, whether or not precisely quantified, we could get, until very recently in the special case, but now that there is this further left/right of the ballot paper variable ‑ ‑ ‑ 

HIS HONOUR:   But we have a pleading, do we not, from the plaintiff - a statement of claim?

MR DONAGHUE:   We do, we do have a statement of claim, yes.

HIS HONOUR:   Does the statement of claim – and we have a defence, as I understand it.  Are the parties at issue as to whether there is any potential for confusion?

MR DONAGHUE:   Your Honour, I have not been back to this document for a moment, so would you give me a minute?

HIS HONOUR:   Because if there were no issue about whether there is a potential for confusion, then would there be any value or purpose to having an expert, a hearing with expert evidence, to determine the extent to which actual confusion…..

MR DONAGHUE:   If our friends accepted that there is a proper basis for Parliament to be concerned about voter confusion, then I think what your Honour says is right.  But I do not think that that emerges with any clarity from the pleadings.

HIS HONOUR:   Yes, I see.

MR DONAGHUE:   I do not understand our friends to accept that inference, because that is the inference that we think they are trying to avoid by the facts that are now being proposed.

HIS HONOUR:   Yes, and if that is the case then the – I can see that a substratum of the whole case that the Commonwealth seeks to put really needs to be established before the Full Court can proceed to decide the legal issues.

MR DONAGHUE:   Well, precisely, your Honour.

HIS HONOUR:   Yes.

MR DONAGHUE:   We do think that could happen by – it may not be a large exercise, it may well be that someone looking at the underlying data, an expert, a statistician or some other appropriate expert could look at the figures and say one of the things that is in play in explaining these variations in the data is voter confusion, and that would probably be enough for us.  So if your Honour or some other judge was prepared to listen to the expert and then make a finding for that effect, that could supplement the special case and the problem would be overcome.  But it is without that additional fact that we have a concern. 

So, I can take your Honour through the detail of it, and I will do that if it would assist your Honour, but in terms of just skipping over that for a moment, your Honour said, well, the parties should grapple with the procedure, how do we deal with this, and it seemed to us that there were two main options.

One was that your Honour could do something similar to the procedure that Justice Gordon adopted in the Day case or that Justice Keane adopted in the Roberts case, and one could have, in addition to the special case, a small evidentiary hearing, some facts could be found by your Honour that would be read together with the special case and the matter could proceed and, subject to your Honour’s convenience, that could probably be done – well, if it was possible to do the factual hearing just before Christmas, then there could be a timetable for the parties to file submissions to get ready for whatever February date your Honour had in mind for the hearing before the Full Court.

HIS HONOUR:   I can indicate that provisionally, and I think this is useful to work backwards from - provisionally, there might be accommodation on 15 February.

MR DONAGHUE:   Yes.  I apprehended that might be what your Honour was going to say, given the other cases that are being listed in February. 

We have worked out a timetable which is tight, but doable, that would involve the defendant filing and serving a list of witnesses and an outline of evidence by, say, 10 December; the plaintiff doing the same by 17 December; a hearing, say, on 22 December, where any relevant witnesses could be called, cross‑examined, and it would then be – that is obviously just before Christmas. 

I do not know what would be viable for your Honour in terms of when fact finding could be undertaken, but leaving that aside for the moment, it would then be possible for an exchange of submissions from mid‑January through to early February, and a hearing on the date your Honour mentioned.  So I can take your Honour through the detail of how that would look.  We do not yet know whether we actually have - can find an expert who can accommodate that timing because it is very tight, but ‑ ‑ ‑ 

HIS HONOUR:   Ultimately, the exercise or the conclusion to which the Commonwealth would be leading evidence would be to establish that there was a real potential for confusion.  The underlying substratum of the Commonwealth’s case does not need to go any further than that, does it?  It does not need to establish the extent of the confusion that actually existed?

MR DONAGHUE:   No, it does not.  I imagine the expert evidence would show – would be to the effect that there is confusion, not just potential for it, but it might not need to quantify exactly how much.  But there has been confusion which the expert could say, in at least the State Senate elections in the following period, matters of that kind, and then we would invite the Court, on the basis of that, to say that one of the things that explains the vote of the Liberal Democrats when they appear to the left of the Liberal Party is voter confusion, but we would not necessarily be inviting your Honours to say it is a two per cent effect, or a three and a half per cent effect, or anything of that kind.

HIS HONOUR:   Yes.  All right.  I think it would probably be useful if I could hear what the plaintiff’s position is in relation to this issue now, before I deal with any issues of timetabling or the manner in which it should be heard.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   Mr Scheelings.

MR SCHEELINGS:   Yes.  I will start – it sound like matters have moved on since, but today is the first time we have heard this, and there is a procedure for a special case, and this is at the very last minute, and I hesitate to use the word “ambush”, but there is that aspect to it.

HIS HONOUR:   Mr Scheelings, we are where we are.  Part of the reason is because there have been amendments, at least from the plaintiff’s side, that have come in relatively recently as well to the special case, but I do not need to deal with any of the reasons for why we are here.  I think the basic question is:  is there a dispute between the parties that there is a potential for confusion?  Because that seems to me to be the underlying - the deep underlying issue.

MR SCHEELINGS:   So, your Honour, we would agree with that, and we heard what the Solicitor‑General says in relation to what he thought the plaintiff was contending in terms of whether there was a foundation, and I am instructed, or I am happy to make the concession, that we do make that concession.

HIS HONOUR:   That there is a potential for confusion?

MR SCHEELINGS:   That is so.  Indeed the discussion that fell between the Bench and the Bar table on my friend’s side in relation to the level of apprehension that Parliament would need, we do not cavil with.

HIS HONOUR:   The easiest way to deal with that, and this might be one of the reasons that the pleadings could serve a very useful purpose - is the Commonwealth could perhaps plead in its defence and the plaintiff could put in a short reply just to deal with that very basic fact or basic inference that is sought, without the necessity then for a detailed hearing that attempts to quantify or to try to provide additional detail to something that may be unnecessary.

MR SCHEELINGS:   Your Honour would appreciate that that sort of trial, even confined to that, because it involves experts, would involve experts on each side, cross‑examination and econometric reports, multi‑variable regression, all to prove something that is actually conceded.

HIS HONOUR:   Yes.

MR SCHEELINGS:   It is not about magnitude, it is about whether there is an effect, as I understand it.

HIS HONOUR:   Mr Scheelings, would it be useful then, and again, because this needs to move very, very quickly, for me to relist this matter for further directions, if necessary, at 10.00 am on Wednesday, which will give the parties a day and a half to confer.  It does seem to me that in the terms that both the Solicitor‑General and yourself have just explained, there might be – or there certainly should be, an easy consensus that can be reached that will avoid any dispute as to the underlying fact and allow the

provisional special case to become an agreed special case with perhaps some amendments to the pleadings, just to clarify any dispute.

MR SCHEELINGS:   The plaintiff is content with that course, your Honour.  That would be the defence - putting on an amended defence and then the plaintiff put on a reply…..

HIS HONOUR:   I mean, presumably that would be done after yourself and the Solicitor‑General confer about this this afternoon and then the wording could just reflect the agreement that is reached about that.  Mr Solicitor?

MR DONAGHUE:   Your Honour, that sounds like a very good path forward from our point of view.  We have no desire to have a factual trial in this matter if it is not necessary to do so, and as long as we can sort out appropriate amendments to the pleadings then we would be very happy with that solution.  So Wednesday morning sounds good, if that suits your Honour.

HIS HONOUR:   Certainly more pleasant than a hearing on 22 December and judgment on the 25th.

MR DONAGHUE:   Could not agree more, your Honour.

HIS HONOUR:   All right.  The Court will adjourn until 10.00 am Brisbane time on Wednesday, and perhaps if the parties could let me know by lunchtime tomorrow if there are any common agreed directions that can be made, and if so, I can make those directions on the papers.  From looking at the proposed directions that the plaintiff has provided, at the moment it seems to me that those directions would be suitable to move the matter to a hearing on 15 February.

MR DONAGHUE:   Thank you, your Honour.  Is that 10.00 am Brisbane time, or ‑ ‑ ‑

HIS HONOUR:   Yes, 10.00 am Brisbane time.

MR DONAGHUE:   Brisbane time.  Thank you.  If the Court pleases.

HIS HONOUR:   Thank you both.  The Court will adjourn.

AT 3.17 PM THE MATTER WAS ADJOURNED