State of New South Wales & Ors v Commonwealth of Australia

[2006] HCATrans 24

[2006] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S592 of 2005

B e t w e e n -

STATE OF NEW SOUTH WALES

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Perth   No P66 of 2005

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Adelaide  No A3 of 2006

B e t w e e n -

STATE OF SOUTH AUSTRALIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Brisbane  No B5 of 2006

B e t w e e n -

STATE OF QUEENSLAND

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Summonses for Direction

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 FEBRUARY  2006, AT 9.31 AM

Copyright in the High Court of Australia

__________________

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear for the State of New South Wales in the first matter.  (instructed by Crown Solicitor for New South Wales)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MR R.M. MITCHELL, in the second matter, P66 of 2005.  (instructed by State Solicitor for Western Australia)

MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear in A3 of 2006 for the State of South Australia.  (instructed by Crown Solicitor for South Australia)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR R.W. CAMPBELL, for the State of Queensland.  (instructed by Crown Solicitor for the State of Queensland)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friend, MR H.C. BURMESTER, QC, for the defendant in all matters.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Solicitor, the statements of claim in all these four matters appear to be identical in form.  You have not pleaded or demurred to them yet?

MR BENNETT:   No, your Honour.

HIS HONOUR:   What is it proposed will happen in that regard?

MR BENNETT:   Your Honour, we have not reached any sort of firm agreement on it.  It is hard to see how any factual matters could be relevant.  As we understand it, none of the plaintiffs wish to raise any factual matters.

HIS HONOUR:   So far as I can see, the common form of the statements of claim is to make various assertions about the provisions and the meaning of the provisions of the legislation and then to advert to possible heads of power which would sustain the legislation and assert that they do not sustain it and then seek relief.

MR BENNETT:   Yes.

HIS HONOUR:   I cannot at the moment see any facts asserted in the statements of claim that might be contentious.

MR BENNETT:   The only possible facts, your Honour – and we do not see how any of them would be likely to be relevant or assist the Court – if anyone wanted to rely on as relevant what proportion of employees in Australia are employed by corporations as opposed to individuals, that might be one fact.  It is hard to see how that would have any relevance.  It may be relevant in relation to the transitional provisions that most awards are for a particular period of years under the present structure.  That fact could probably just be stated or assumed without anyone worrying about it too much.

HIS HONOUR:   But if those facts are not in the statement of claim, unless you are proposing to plead them positively as matters of defence, they will not arise on the pleadings, will they?

MR BENNETT:   No, they will not, your Honour.  They would not arise if we were to demur and if there were a stated case they could be included.  They do not seem to us to be facts of any great moment or significance.  I am only concerned that someone may regard one or other of those facts as of some relevance.

HIS HONOUR:   Well, my question to you is, what do you propose to do?  Do you propose to demur?

MR BENNETT:   That is our present proposal, your Honour, but we have not formed a final ‑ ‑ ‑

HIS HONOUR:   When will time expire for demurring?

MR BENNETT:   That depends on the directions today, your Honour.

HIS HONOUR:   Right.  Well, why should not time for demurring be within 14 days?

MR BENNETT:   Yes, there is no problem with that, your Honour.

HIS HONOUR:   Let me ask your opponents whether they see any issues of fact arising either on the pleadings or in the event that a demurrer is filed.  What do you say, Mr Solicitor for New South Wales?

MR SEXTON:   We doubt it, your Honour.  There has been some discussions amongst the States.  I will not pre‑empt what my friends have to say, but our preference is, as we have asked for, for a stated case.

HIS HONOUR:   Why?

MR SEXTON:   Only because it would allow the outline of simply the history of the legislation or the way in which it has got to here.  It could be done by way of demurrer, but there have been stated cases in similar situations in the past and we thought that that was perhaps the best way.

HIS HONOUR:   Yes, but I would like to understand why because the evident difference between doing it by way of stated case and doing it by way of demurrer is that, if it is done by way of stated case, it is likely to introduce factual assertions in the stated case that then may or may not be in dispute.

MR SEXTON:   We do not think so, your Honour.  They would only be the way in which the legislation was passed and its context.  We do not think there will be any disputed matters in the stated case.

HIS HONOUR:   Would you just be clear then, for my benefit, as to what matters of fact you think might be relevant to the determination of the issues in the case.

MR SEXTON:   We do not think as it stands at the moment that there are any disputed facts that are relevant.

HIS HONOUR:   A possible course would be to give the Commonwealth 14 days within which to plead and/or demur and then list the matter again during the next sittings of the Court to see whether there are likely to be any factual matters in issue and to indicate tentative dates on which the matter could be heard.  What do you say, Mr Solicitor for Western Australia, about this question of facts?

MR MEADOWS:   There may be requirements for some facts, but they would not be in any way contentious, we would think.  One of the issues is whether, if you have a statutory corporation which may well be identified with the State, whether the legislation can apply to the people that work for that particular organisation.  But I think that would only be by way of an

example and it would not necessarily raise anything that is contentious, as I perceive it. 

I suppose if my learned friend for the Commonwealth has not decided whether he will demur, it seems difficult to say that it should proceed by case stated ahead of that decision, but it could be done on the basis, I believe, where the Commonwealth is given a certain time within which to demur and, if they did not, then it could proceed by way of a case stated.  A direction to that effect could be made.

HIS HONOUR:   What do you say, Mr Solicitor for South Australia?

MR KOURAKIS:   There are no facts that we can see will be necessary and, in my submission, the case can proceed by simply reserving pure questions of law.  If the Commonwealth knew it was not going to plead any facts, we could give some consideration to that now or, alternatively, the demurrer will identify the questions of law in any event.

HIS HONOUR:   What do you say, Mr Solicitor for Queensland?

MR SOFRONOFF:   Your Honour, I have not entirely foreclosed the possibility that we might raise some facts which I do not think would be controversial, but the facts would probably fall into two groups.  The first is the extent to which governmental functions are performed by corporations that can be described as trading corporations and the second is the extent to which the legislation would cover almost all employees.

HIS HONOUR:   Mr Solicitor for the Commonwealth, bearing in mind what various people have said, how long do you think it would take, and bearing in mind the apparent desirability of having another directions hearing in about a month, how long do you think it would take for the matter to be made ready for hearing?

MR BENNETT:   Your Honour, we were thinking in terms of the first sitting week in June.  I do not know what views my learned friends have or the Court has in relation to that.  There is one thing I should say about facts and that is that we have long asserted, although there has been no direct decision on it, that, notwithstanding Eastman, non‑controversial constitutional facts can simply be proved on appeals.  There is an interesting issue as to whether that applies to demurrers.

HIS HONOUR:   Is there any reason why I should not now tentatively fix the case for the first sitting week in May?

MR BENNETT:   No, your Honour.

HIS HONOUR:   What do the Solicitors for the States say about that?

MR SEXTON:   We do not have a problem with that, your Honour.  Can I just say that we thought that the estimate of the case might be four to five days with the States.

HIS HONOUR:   What do you say about that, Mr Solicitor for the Commonwealth?

MR BENNETT:   Yes, I agree with that, your Honour.

MR SEXTON:   I was going to say, your Honour, subject to any private parties who might be added and might also be taking part.

HIS HONOUR:   If we were to say that we will work towards dealing with the case during the first sitting week in May, we could fix it tentatively for Monday, 8 May.  Anybody want to say anything about that?

MR SEXTON:   No.

HIS HONOUR:   What is the form of direction you would seek, Mr Solicitor for the Commonwealth, in relation to time for pleading and demurring?

MR BENNETT:   Your Honour suggested two weeks before.  That is a convenient time, if that is acceptable to the parties.

HIS HONOUR:   Anybody want to say anything about that?  I will fix a time of 14 days from today in each of these four matters for the Commonwealth to plead and/or demur, as it may be advised. 

MR SOFRONOFF:   Excuse me, your Honour.

HIS HONOUR:   Yes, Mr Solicitor.

MR SOFRONOFF:   In the event that we did wish to raise some facts, did your Honour have in mind that we would amend our statement of claim?

HIS HONOUR:   It depends on the nature of the facts.  You will have to think about that between now and the next directions hearing, I think, Mr Solicitor.

MR SOFRONOFF:   Yes.

HIS HONOUR:   An alternative way of dealing with it is just leave your statement of claim as it is and attempt to reach agreement with the Commonwealth.

MR SOFRONOFF:   Yes.

HIS HONOUR:   It is obviously desirable that the next directions hearing be on an occasion when there are as many interveners as possible in Canberra for something else.  I am looking at the list for March.  I will just run through the cases that we have listed and you can indicate to me when we are likely to have the biggest gathering of interveners.  There is Smits v Roach, Theophanous v The Commonwealth, Island Maritime Limited v Filipowski, Sweeney v Boylan Nominees, SST Consulting Services, Berowra Holdings v Gordon and Forsyth v The Commissioner of Taxation. Now, they are all seven Justice cases.  I do not know which of them are likely to attract interveners.

MR MEADOWS:   I think we may be intervening in Theophanous, your Honour.

MR BENNETT:   I understand there is an application by the Theophanous interests for an adjournment in that matter which we are not opposing.

HIS HONOUR:   That might be a bad one to select then.

MR BENNETT:   But I do not know whether that application has been heard yet and what is happening to it.

MR SEXTON:   Forsyth might be a case in which there will be a number of interventions, your Honour, but I am not sure about Theophanous.

HIS HONOUR:   Then I will adjourn the summons for directions in each of these four matters to 9.30 on Thursday, 9 March 2006 and I will indicate that subject to it appearing on that day that the cases are in an appropriate state for the fixing of a date for hearing, my present contemplation is that they will be fixed for hearing on 8, 9, 10, 11 and 12 May. 

Is there anything else I need to deal with in any of those four cases?

MR BENNETT:   The only question is whether it is appropriate to make a formal order that the matters be heard together or otherwise consolidated at this stage.

HIS HONOUR:   They should obviously be all heard together, should they not?  Then I also order that those four matters all be heard together.  In due

course counsel will be able to agree between themselves on a division of time. 

MR BENNETT:   There may be other matters added to that collection.

HIS HONOUR:   There will be at least one.  I assume that the next matter that we are coming to will be in much the same position.

MR BENNETT:   Yes, if the Court pleases.

HIS HONOUR:   Anything else I need to deal with?  Very well.

At 9.47 am B6 of 2006, Australian Workers Union and Anor v Commonwealth of Australia, was called.

MR A.K. HERBERT:   If it please the Court, I appear for the first and second plaintiff.  (instructed by Sciacca’s Lawyers and Consultants)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   I appear with my learned friend, MR H.C. BURMESTER, QC, for the defendant.  (instructed by Australian Government Solicitor)

MS P.M. TATE, SC, Solicitor‑General for the State of Victoria:   May it please the Court, I seek leave to appear in the directions hearing with my learned friend, MR M. BROMBERG, SC.  (instructed by Victorian Government Solicitor)

We are actually seeking leave to appear in the directions hearing that has just been completed, your Honour, but we had no further contribution to make in relation to that, other than to say that the State of Victoria does intend to commence its own proceedings, but we will seek to endeavour to comply with any timetable that is prescribed by the Court.  If there is a need for any catch‑up orders in relation to the period of time in which the Commonwealth will demur to our own proceeding, if the Commonwealth chooses to do that, then that could be provided for at a later date.  But we will make every endeavour, your Honour, to commence our proceedings as quickly as possible.

HIS HONOUR:   Yes, it is difficult to see that there will be a problem about any of that I should have thought.  I have assumed – it seems fairly obvious – from the statement of claim that the States have all agreed on a common form statement of claim.

MS TATE:   By and large, your Honour.  There will be some peculiarities to Victoria, of course, because we have the background of a referral of power, so there will be some particular claims that will be peculiar to Victoria.  Other than that, they would be largely in common form.  Thank you, your Honour.

HIS HONOUR:   Mr Herbert, it seems obviously desirable that your proceedings should be heard at the same time as the State proceedings.

MR HERBERT:   We would ask that.

HIS HONOUR:   I notice that your statement of claim, although not in precisely the same form as the States’ statement of claim, follows the same general pattern of making assertions about the meaning and effect of the legislation and referring to possible heads of power and asserting that they do not sustain provisions, which looks like something that could attract a demurrer.

MR HERBERT:   Yes.

HIS HONOUR:   Mr Solicitor for the Commonwealth, is there any reason why I should give any different directions in relation to this matter?

MR BENNETT:   No, your Honour.

HIS HONOUR:   Are you content with that, Mr Herbert?

MR HERBERT:   I am content with that, thank you, your Honour.  The only other issue – and we have not had as yet had an opportunity to discuss it with the Commonwealth – is that there are some asserted facts which go to the question of the interest of the plaintiffs to bring these proceedings which do not appear in any of the other statements of claim, of course, being private parties, as it were.  But I would imagine that they would be uncontentious and that there would not be any necessity to have any evidence put on in relation to those matters.

HIS HONOUR:   I must say I assumed that when I read the document, Mr Herbert.  What do you say about that, Mr Solicitor?

MR BENNETT:   Yes, your Honour, we are content with that.

HIS HONOUR:   It would not seem very productive to get into any question about standing as far as your clients are concerned, Mr Herbert?

MR HERBERT:   No, we do not wish to have an argument about it, but we have pleaded those materials.  I simply raise it because it distinguishes our

pleading from the others in the other four matters and your Honour has raised the question of whether it would be necessary for any evidence.  In the end result, we do not think that and we think the matter would be entirely uncontentious.

HIS HONOUR:   Then, once again, I will make the same directions in your case as we made in the others.  When we look at the matters again on Thursday, 9 March, we can pay particular attention to the question whether there appear to be any factual disputes that will need to be dealt with. 

Is there anything else I need to attend to?  Mr Bale, are we going to see the State of Tasmania?

MR W.C.R. BALE, QC, Solicitor‑General of the State of Tasmania:   Only in a bit part, I would imagine, your Honour.

HIS HONOUR:   Very well.  Then all these matters will be adjourned until Thursday, 9 March.  I will certify for counsel.  The Court will adjourn.

AT 9.47 AM THE MATTERS WERE ADJOURNED
UNTIL THURSDAY, 9 MARCH 2006