Spencer v Commonwealth of Australia

[2009] HCATrans 95

[2009] HCATrans 095

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S87 of 2009

B e t w e e n -

PETER JAMES SPENCER

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Directions

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 2009, AT 4.41 PM

Copyright in the High Court of Australia

MR P.E. KING:   If your Honour pleases, I appear for the applicant/appellant.  (instructed by Christie Advocacy International)

MR A. ROBERTSON, SC:   May it please the Court, I appear with MR C.L. LENEHAN for the respondent.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr King, I brought this on today for some directions so that we could see whether there was – because it seemed to be traversing some of the same territory as the other matter.  However, I am beginning to be a little more sceptical about it and I wonder whether, apart from anything else, there is not a need to – of course, what this is at the moment is an application for special leave and whether there is not a need to have a look at refinement of the grounds in relation to that before that application is actually listed for hearing.  I can consider listing it for hearing out of the ordinary special leave list in the event that there is a prospect that it might, in fact, be convenient to deal with it in the same sittings if special leave were to be granted as the other matters of ICM and Arnold.  But my sense is that there may be a need for some work on the grounds.

MR KING:   If your Honour pleases, it would be our respectful submission, obviously at this stage under the Rules the draft notice of appeal had not been filed, but it will be shortly and the submissions are already drafted although not yet filed, but it is our respectful submission that the matter would be appropriate to be listed with Arnold.  Whether or not ICM is listed with Arnold and I heard ‑ ‑ ‑

HIS HONOUR:   This depends on you getting special leave first.

MR KING:   Of course, and I am only going on the observations of my learned friend, Mr Robertson, in that regard.  Can I just briefly say why, your Honour.  Firstly, both Arnold and Spencer are cases in which there are detailed reasons of both primary judges and Full Courts or intermediate courts of appeal.  Secondly, the reasons in Arnold are intertwined with, indeed dependent upon the reasons in Spencer because the learned Chief Justice of the Court of Appeal applied at paragraphs 94 and following in Arnold the reasons of the learned primary judge in Spencer.  In that regard, your Honour, the legislative framework is common, indeed there is a statute common to both of them, although there is one other statute which is facultative which is not common to both of them but is to the same effect.

Your Honour, I received late last night from the applicants in the ICM matter copies of written submissions.  I have not received the draft proposed amended statement of claim so it may be really premature for us to ‑ ‑ ‑

HIS HONOUR:   Yes.  I do not think you have to get into this debate right at the moment, but in order to give you an opportunity to get into the debate, if it should become real, I think what I should try to do is to get your application for special leave listed for hearing, subject to what Mr Robertson has to say, out of the ordinary timeframe and that would be here in Sydney before at least two of the Sydney Justices.  I suppose the question is, how soon will everybody be ready to do that?

MR KING:   We have expedited our preparation.  As I say, burning the midnight oil we have prepared the draft written submissions which will be ready to be filed next week, somewhat in advance of the usual time and the draft notice of appeal should be ready as well by the end of next week.  I can indicate to your Honour that ‑ ‑ ‑

HIS HONOUR:   Sorry, when I spoke of your grounds earlier I was referring, I think, to the application for special leave.

MR KING:   Yes.

HIS HONOUR:   All right.  So you can do that by the end of next week which is 8 May.  I will hear from Mr Robertson and see what he has to say.

MR ROBERTSON:   Thank you, your Honour.  I am not against speed, of course.  It will ultimately be the respondent’s submission that there are very substantial differences between this case and the others and the grant of special leave in Arnold by no means determines the fate of ‑ ‑ ‑

HIS HONOUR:   Absolutely.  Yes, I agree with that.

MR ROBERTSON:   If the question is how soon after 8 May can we file submissions, two weeks probably, but we would adopt, with respect, your Honour, perhaps what is implicit in your Honour’s observation about the grounds in the draft and that is that there is as yet no identified special leave question.

HIS HONOUR:   Yes.

MR ROBERTSON:   So we look forward to seeing what that is.  But I should say for completeness, your Honour, that despite what my learned friend, Mr King, said, the legal framework is quite different, that is, this does not involve the act at the centre of Arnold and ICM which is, as I understand, the National Water Commission Act and, of course, it does not involve the same funding agreement.  I am not denying, of course, that there may be some, if special leave were granted, overlap in terms of legal argument.

HIS HONOUR:   If special leave were granted, it might be convenient to have it in the same sittings, but that does not mean they run together.

MR ROBERTSON:   So if we had, once we get the submissions ‑ ‑ ‑

HIS HONOUR:   So 22 May for you?

MR ROBERTSON:   Yes, 22 May and it could come back at the next special leave day, so a couple of weeks after that because we need to allow a week or so for the applicant’s reply, one would think.

HIS HONOUR:   Yes.  Well, actually, the next special leave day is, in fact, the 29th so that is the week after that so it could be slotted in then.  All right, I will just make some directions.

MR ROBERTSON:   If the Court pleases.

HIS HONOUR:   You have had a warning shot across the bows, Mr King, in relation to the identification of the special leave question so it is a matter for you to consider, of course.

MR KING:   Of course, your Honour.

HIS HONOUR:   So:

1.The applicant to file and serve written submissions and draft notice of appeal by 8 May.

2.The respondent to file and serve written submissions by 22 May.

3.The applicant to file and serve any written reply by 26 May.

4.The application be listed for 29 May and that will be in Sydney unless otherwise advised.

MR KING:   If the Court pleases.

HIS HONOUR:   Yes, all right, thank you.  We will adjourn.  The Court adjourns to 10.15 on Tuesday, 19 May in Canberra.

AT 4.50 PM THE MATTER WAS CONCLUDED