Staindl v Frydenberg

[2019] HCATrans 244

[2019] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
  Melbourne  No M96 of 2019

B e t w e e n -

MICHAEL ROBERT STAINDL

Petitioner

and

JOSHUA ANTHONY FRYDENBERG

Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 12 DECEMBER 2019, AT 9.28 AM

Copyright in the High Court of Australia

MR A. ALEKSOV:   May it please the Court, your Honour, I appear for the petitioner.  (instructed by Bleyer Lawyers Pty Ltd)

MS C.G. BUTTON, QC:   May it please the Court, I appear with MR B.K. LIM for the respondent.  (instructed by Arnold Bloch Leibler Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please your Honour, I appear with MR T.M. WOOD for the Commonwealth Attorney‑General intervening.  (instructed by Australian Government Solicitor)

HER HONOUR:   Mr Aleksov.

MR ALEKSOV:   We trust that two documents have made their way to your Honour either overnight or this morning setting out an agreed list of factual and legal issues, agreed as between the parties, as well as a proposal for some direction to take the matter forward.

HER HONOUR:   Yes.

MR ALEKSOV:   The parties, as your Honour would know from that document, are agreed that at the moment it seems appropriate that the matter remain with this Court with a view to having the experts confer in relation to those factual issues and preparing a joint report setting out points of agreement or disagreement, upon receipt of which the next steps in the matter will become known, including whether or not there is any need to try additional factual issues.

HER HONOUR:   I see.  Do you wish to add – I notice I do not have any written submissions from you yet.  It is not a criticism; do not take it as such.  Do you wish to add anything to what has been said by either the respondent or the Attorney‑General for the Commonwealth intervening?

MR ALEKSOV:   No.

HER HONOUR:   Thank you.  Ms Button, do you wish to add anything to your submissions?

MS BUTTON:   Not on that point, your Honour.  Before your Honour came on to the bench, we discussed the expert’s availability and it appears that the joint report could be provided by 21 December, which is a Saturday in Australia but a Friday in Hungary, if that is convenient to the Court.

HER HONOUR:   Yes, I understand.  Mr Solicitor, do you wish to add anything to your submissions?

MR DONAGHUE:   No, your Honour, I do not.

HER HONOUR:   Thank you.

The petition was filed on 31 July 2019. Section 363A of the Commonwealth Electoral Act 1918 (Cth) provides that the Court of Disputed Returns must make its decision on a petition as quickly as is reasonable in the circumstances.

On 21 November 2019, the petition was listed for directions.  A signed minute of consent order was provided to the Court.  As counsel for the petitioner and the respondent accepted, those proposed consent orders did not advance the identification of the issues in dispute.  Orders were made, and the directions hearing adjourned until today, to see whether that might occur.

Four experts’ reports, with annexures, have now been filed - one by the petitioner and three by the respondent.  They comprise in excess of 250 pages.  During the last directions hearing, I raised some concern that there had been no exchange or discussion about the experts including the questions to be asked of them and the materials to be provided to them.  That concern has come to fruition.  The experts were asked different questions.  They were also not provided with the same materials.  Indeed, some of the annexures to the reports refer to events which occurred as late as 14 and 19 November and which then appear to have been provided to one or more of the experts as supplementary facts and assumptions as late as 3 December 2019.  Thus, not only do the experts not agree, but the scope of their disagreement is not evident and cannot be discerned at this time.

Late yesterday afternoon, the Attorney‑General of the Commonwealth (intervening) provided written submissions.  At about midnight last night, the respondent emailed separate written submissions.  The submissions of the Attorney‑General of the Commonwealth recorded that prior to today’s directions hearing the parties intended to provide to the Court a draft agreed list of factual issues and legal issues together with a proposed order for the future conduct of the matter.  Those documents were provided to the Court this morning.

A review of both sets of submissions, the documents to which reference has just been made and the contents of the reports of the four experts, reveal that:

first, there are significant factual issues;

second, not only are there no agreed facts but it is apparent from the draft directions that any agreement is not able to be reached until after the experts have provided a joint report identifying areas of agreement and disagreement.  Given the differences in what the experts were asked and in the materials they were provided, it cannot be assumed that agreement, especially significant agreement, is likely to be achieved expeditiously or at all;

third, factual findings on the existence and content of foreign law are most likely to be required to be made by a judge after a trial and cross‑examination of the experts and, given the nature of those factual findings, may require submissions on, or at least consideration of, several of the legal questions which are variously described in the submissions as “significant” and “novel”.  That is, given the nature of the particular factual findings, I am not persuaded that those factual findings can be or should be divorced from, or decided separately from, the several legal questions.  Moreover, the submissions do not reveal that the parties can frame the issues of fact at an appropriate level of specificity that would eliminate the danger of separating a trial of fact from definition of the relevant legal issues.

In those circumstances, and given the history of this matter, consistent with s 363A of the Commonwealth Electoral Act, it is appropriate and necessary for the petition to be referred for trial to the Federal Court of Australia, Victoria Registry, pursuant to s 354(1) of the Commonwealth Electoral Act.  I will direct the Deputy Registrar of this Court to forward to the proper officer of the Victoria Registry of the Federal Court of Australia copies of all documents filed in this Court.

Anything further?

MR ALEKSOV:   No, your Honour.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 9.35 AM THE MATTER WAS CONCLUDED