Spence v State of Queensland

[2018] HCATrans 268

[2018] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B35 of 2018

B e t w e e n -

GARY DOUGLAS SPENCE

Plaintiff

and

STATE OF QUEENSLAND

Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO BRISBANE

ON FRIDAY, 21 DECEMBER 2018, AT 9.58 AM

Copyright in the High Court of Australia

MR J.K. KIRK, SC:   May it please the Court, I appear for the plaintiff.  (instructed by ClarkeKann)

MR S.J. KEIM, SC:   May it please the Court, I appear with my learned junior, MS F.J. NAGORCKA, for the defendant.  (instructed by Crown Solicitor (Qld))

MR C.J. TRAN:   May it please the Court, I appear on behalf of the Attorney‑General of the Commonwealth.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you.

MR KIRK:   Your Honour would have seen that in the spirit of good cheer, the parties have managed to agree, subject to your Honour’s view, of course, a proposed timetable which would have the matter ready for the March hearing.  I think that should have been provided to your Honour yesterday.

HIS HONOUR:   Yes, I have seen that.  Thank you.

MR KIRK:   Unless your Honour had any questions about ‑ ‑ ‑

HIS HONOUR:   Not for you, I think, Mr Kirk.

MR KIRK:   No.  May it please the Court.

HIS HONOUR:   Thank you.  Mr Tran, may I ask you about this timetable?

MR TRAN:   Yes, your Honour.

HIS HONOUR:   I have seen the draft special case and also the new section 78B notice.

MR TRAN:   Yes.

HIS HONOUR:   Taking them in turn, I would assume that the Commonwealth would be seeking to make substantial amendments to the special case, at least by way of addition.

MR TRAN:   Your Honour, yesterday my instructors communicated some proposed amendments to the parties.  I understand the other sides are probably still seeking instructions on those.  I would not describe those as very, very substantial by any means.  I do not think we have quite settled on a view as to whether or not we might seek any additional changes but I do

not think, if we were to do so, they would be very large and that they would not threaten the timetable that has been agreed between the parties.

HIS HONOUR:   All right, thank you for that.  I notice in the section 78B notice that there is a Metwally point ‑ ‑ ‑

MR TRAN:   Yes.

HIS HONOUR:   ‑ ‑ ‑ which had not been mentioned, I think, at the previous directions hearing.  Do you have any position on Metwally?  I can imagine arguments that the Commonwealth might wish to make about it.

MR TRAN:   I think that we are giving active consideration as to precisely what we would say in response to that point that has been raised by Queensland.  I am not in a position to indicate anything to your Honour about that today, but again, at least the tentative thoughts that have been given to this argument have informed the Attorney‑General of the Commonwealth’s position in agreeing to this timetable.  So I think the most I can say at the moment on my feet, your Honour, is that whatever it is that we might want to say about Metwally, we think we can say without causing any prejudice to any of the other parties or interveners or this timetable.

HIS HONOUR:   All right.  It is possible that, depending on exactly what you say, you might need an extra section 78B notice.

MR TRAN:   Indeed, your Honour.

HIS HONOUR:   It is highly desirable that any further constitutional point to be raised in a case that already bristles with constitutional points be raised at the earliest opportunity.

MR TRAN:   Expeditiously, of course, your Honour.

HIS HONOUR:   All right.  Thank you, Mr Tran.  Mr Keim, do you have anything you wish to say?

MR KEIM:   No, your Honour.  The State of Queensland consents to the proposed orders.  We have looked very, very briefly at the suggested changes that we have received from Mr Tran.  If I can use a colloquial term, we may push back a little bit with regard to some of it but certainly Mr Dunning is a very conciliatory person and I am sure that agreement will be able to be achieved.  That is with regard to the special case within the time limit.

HIS HONOUR:   Thanks very much.  All right. 

MR KEIM:   Thank you, your Honour.

MR KIRK:   I add nothing further, your Honour, save to note two points if I may, with your Honour’s leave.

HIS HONOUR:   Yes.

MR KIRK:   First, I think it may have been communicated to your Honour that in light of the additional bristles which have come into the case, I think all parties are agreed that there is a real chance if not, indeed, a probability that the matter will go into three days.  Connected to that, whilst at the moment of the States and Territories only Victoria and the ACT are intervening, it is a statement of the obvious, I think, that in light of the three additional issues raised there is at the least a very real possibility that many, perhaps most, or perhaps all of the other States may wish to come into the matter; hence, our estimate of three days.  That said, we still think it can be done within three days.

Would your Honour also forgive me for noting on the transcript, if I may, in light of the expedited nature of this matter, that this timetable would require any intervener in support of the plaintiff to file and serve their written submissions on or before Wednesday, 6 February 2019 and any intervener in support of the defendant, along with any intervener who does not support any party, to file and serve their written submissions on or before midday, Monday, 25 February 2019.

HIS HONOUR:   Thank you.  I propose to make orders which I will read into the transcript substantially in the terms that have been provided to me in draft by the parties.

MR KIRK:   If it please the Court.

HIS HONOUR:   The orders I make are as follows:

1.The plaintiff file an amended special case agreed between the plaintiff, the defendant and the Attorney‑General of the Commonwealth on or before Friday, 25 January 2019.

2.On the filing of the agreed amended special case, subject to any further order of the Court, the amended special case is to be referred for consideration by the Full Court.

3.The plaintiff file 12 copies of the special case book on or before Tuesday, 29 January 2019.

4.The plaintiff file and serve written submissions on or before Tuesday, 29 January 2019.

5.Any intervener in support of the plaintiff file and serve written submissions on or before Wednesday, 6 February 2019.

6.The defendant file and serve written submissions on or before Wednesday, 20 February 2019.  The page limit for those submissions is increased to 30 pages.

7.Any intervener in support of the defendant and any intervener who does not support any party file and serve written submissions at or before midday on Monday, 25 February 2019.

8.The plaintiff and the Attorney‑General of the Commonwealth file and serve any written submissions in reply on or before Friday, 1 March 2019.  The page limit of each of those submissions is increased to 15 pages.

9.The defendant file and serve any written submissions in reply to the reply submissions of the plaintiff and the Attorney‑General of the Commonwealth on or before Wednesday, 6 March 2019.  The page limit for those submissions is five pages.

10.The plaintiff file and serve a joint book of authorities on or before Thursday, 7 March 2019.  No certification of the correctness of the joint book of authorities is required.

11.The parties and the Attorney‑General of the Commonwealth have liberty to apply on three days’ written notice.

12.Costs of this directions hearing are costs in the cause.

MR KIRK:   Just one final matter, if I may, your Honour, could I respectfully ask if the Court has any idea as to when it is likely to be heard.  I think your Honour mentioned on the last occasion it may well be the second week of the March sittings.

HIS HONOUR:   We are certainly heading towards a listing in the March sittings.  I cannot be more specific than that.

MR KIRK:   Thank you.

HIS HONOUR:   The Court will take a short adjournment.  Thank you.

AT 10.08 AM THE MATTER WAS ADJOURNED