State of New South Wales; State of Western Australia; State of Queensland; State of South Australia v The Commonwealth of Australia

[1989] HCATrans 198

•

4

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney No S92 of 1989

B e t w e e n -

STATE OF NEW SOUTH WALES

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Brisbane No B28 of 1989

B e t w e e n -

STATE OF gUEENSLAND

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Adelaide No A32 of 1989

Between-

STATE OF SOUTH AUSTRALIA

C3Tl/l/JM 25 6/9/89

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry

Perth No P24 of 1989

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Summons for directions

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 SEPTEMBER 1989, AT 9.18 AM

(Continued from 17/8/89)

Copyright in the High Court of Australia

MR-K;R. HANDLEY, QC:  If the Court pleases, I appear for

the State of New South Wales, the State of

Queensland and the State of South Australia.

( instructed by the Crown Solicitor for the State of New

Wales, the Crown Solicitor for the State of

Queensland and the Crown Solicitor for South

Australia)

MR D.F. JACKSON, QC:  Your Honour, I appear with my learned

friend, MR M. BRABAZON, for the State of Western

Australia. (instructed by the Crown Solicitor for

Western Australia)

CJTl/2/JH 26 6/9/89

MR D.J. ROSE:  If Your Honour pleases, I appear with my

learned friends, MR A. ROBERTSON and MR S.J. GAGELER,

for the Commonwealth. (instructed by the Australian

Government Solicitor).

MR HANDLEY:  Your Honour, the parties, since the last

directions hearin& have been exploring ways in

,fuich they could conveniently narrow the issues

in this case for the benefit both of themselves and

of the Court and this exploration has been proceeding

on a number of fronts but, unless Your Honour was

particularly curious, I was only going to trouble

Your Honour with one of those fronts and could I show

Your Honour a draft order that I have prepared and

circulated last week and a redraft which

Dr Gavan Griffith circulated subsequently as showing

one of the ways in which the parties are exploring shortening the issues in this case. What is being

explored in those orders, Your Honour, is a means

of shortening the issues which arise under
chapters 2, 3, 4 and 5 and the CLOSE CORPORATIONS ACT -
chapters 2 to 5 of the CORPORATIONS ACT and the whole

of the CLOSE CORPORATIONS ACT - by tendering a

single issue of law which might appropriately be

referred to the Full Court.

We are not in a position to ask Your Honour

to make any orders today for a number of reasons - - -

HIS HONOUR:  No, I did not anticipate you would, Mr Handley,

I am mainly concerned to see that the matter is

progressing so that it reaches the staee where a

question or questions can be put to the Full Court

that may prove to be largely decisive of the

controversy between the parties.

(Continued on page 28)

C3Tl/3/JH 27 6/9/89

MR HAND~EY:  Yes. Well, for our part, Your Honour, we are

also anxious to find out whether the Court is

favourablv disposed to the course we are following

and does not see anv difficulties of a orocedural

or ultimately, I suppose, of a iurisdictional nature
in what we are proposing because if the Court were
not minded to refer a question along the lines that
the parties had been discussing, then we would have
to re-examine other wavs in which we might be able

to shorten the proceedings.

HIS HONOUR:  Yes. T..,oo~ing at vour draft order and not

having had the benefit at the moment of reading the

Solicitor-General's response to it, the second of the

two questions seems to me to be a preferable form for

the first question.

MR HANDT..,EY:	Yes.
HIS HONOUR:	There is, as it were, an abstract, almost

academic quality about the first question that might

attract criticism from those who value - - -

MR HANDLEY:  Unfortunatelv I think Dr Griffith has come bac~

on the first question - that appeals to him - and I

think there has been some fondness for the first

draft, not as a matter of wording, but as a matter of substance, but we did envisage that there might

be some difficulty about it and hence puttin~ it uo

in two forms. ·

HIS HONOUR:	Yes.
MR HANDLEY:	But, Your Honour, we could, I think, identify one

section or a very small group of sections which would

throw up the issue in a satisfactory form:	that
is sections of the CORPORATIONS ACT.

HIS HONOUR:  Yes. Mr Handley, leaving aside the form of the

question that is reserved for the consideration of

the Full Court for the moment, what is vour attitude

to the remainder of the draft order or orders

suggested by the Solicitor-General? For example, it

seems to omit agreement 3 in your draft.

MR HANDLEY:  Yes. Your Honour, we do not anticipate anv

ultimate difficulty about those matters.

HIS HONOUR:	No.
MR HANDLEY:	Obviouslv the parties, in their own interests, wish

to ensure that, as far as possible, anv answer given

bv the Full Court will have at least a decisive effect

over a broad group of the issues and I think that we

will be able to sort that matter out.

C3T2/l/HS 28 MR HANDLEY, OC f.,/Q/P,Q

MR HANDLEY (continuing): There is some reluctance on

the part of two of the States to agreeing to

the demurrer being allowed if this question

is answered favourably to the Commonwealth

in view of the fact that the Commonwealth says

rightly enough that some of the sections in chanters 2, 3, 4 and 5 would be suonortable on other heads of Dower aoart from.olacitum (XX).

We rather, I think: were exploring in the last

day or so the possibility that without any

agreement as to the fate of the demurrer or the

action a question might be referred under

section 18 along one of those lines, the Court

being assured by all parties that in the light of the Court's answer to that question, either the litigation would go away or what would be

left might be a number of discrete issues

which would not necessarily affect the legislation

as a whole, but some States, not necessarily all

States, might still be interested in attacking

particular sections. It is quite possible, on

the other hand, that the whole issue would go

away after that question was decided.

HIS HONOUR:	Yes.
MR HANDLEY:	Your Honour, what has not been addressed in

that draft, or any of those drafts, is the way

in which the parties would seek to litigate

the validity of chapters 6, 7 and 8 dealing

with takeovers, securities and futures.

HIS HONOUR:	Yes.
MR HANDLEY:	There have been discussions, Your Honour.

They have not proceeded as far as the discussions which are documented before the Court this morning

and unless Your Honour was particularly curious, ··

I would not oronose to take Your Honour into that

area. But again there could be - we anticipate

either that representative sections will be

selected out of chapters 6, 7 and 8 to throw up

at least the bulk of the issues, or else the

parties may come-to some arrangement about those

chapters either for the challenge to be deferred

or else for their fate to turn in some way on the

fate of the question that will be going to the

Full Court.

HIS HONOUR:  Could I ask you this: assume that the question

as presently framed, or framed in some alternative

version that is, dealing with incorporation, goes

to the Full Court on its own, how long is it

expected that argument on that question will take?

MR HANDLEY:  Your Honour, I would think that at this stage it

could well finish in two days. I have discussed

the matter with both Dr Griffith and the renresentatives

of the other States. I understood Your Honour

originally set aside seven hearing days.

C3T3/l/JM 29 6/9/89

MR HANDLEY (continuing):  At this stage I think the consensus

on the plaintiffs' side would be that three days
could be dropped off, but it may well come back even

more, but until - - -

HIS HONOUR:  When you say "dropping off three days",

dropping off three days on the footing that something

is added to the incorporation - - -

MR HANDLEY:	Yes, keeping open - - -
HIS HONOUR:	Keeping open the possibility of adding to the

incorporation question - - -

MR HANDLEY:	Yes, Your Honour.
HIS HONOUR:	- - - but you feel whatever is added to the

corporation question, it is unlikely that argument

in October would go beyond four days.

MR HANDLEY:  Yes, Your Honour. That is the assessment of

John Doyle and myself. I have not discussed it

specifically with David Jackson - - -

HIS HONOUR:  AndiMr Rose,is it the assessment of the Commonwealth

as we l?

MR ROSE:  I am not entirely sure, Your Honour. It depends how

much is added to that other question and some of our

worst fears might be realized in that regard.

HIS HONOUR:  Yes. Well, of course, it is impossible for me

to know at all, it is a question of what the parties

are contemplating in terms of possibilities.

MR HANDLEY:  But what has been saved, Your Honour, is the time

that would have been taken in putting the Court in
the picture so far as this legislation as a whole is

considered.

HIS HONOUR:  I appreciate that, Mr Handley, and I would like to

express my appreciation to the parties and to their

advisers and their representatives in co-operating in

this way because there has been a very valuable saving

of time.

MR HANDLEY:  Yes, thank you.

HIS HONOUR: Therefore, I am not disposed to be critical about

the absence of precision - - -

MR HANDLEY: Just impatient.

HIS HONOUR:  - - - in relation to time,,but everyone will appreciate

that it is important for the Court because we do not

want to lose available time for the hearing of cases.

C3T4/1/FK	30	6/9/89
MR HANDLEY:	No, Your Honour.	We are reluctant to make any

further assurance lest if the progress does not continue,

we have then got to go back and say to the Court,

"We need four days" and you have got to unfix cases.

HIS HONOUR:	Yes.
MR HANDLEY:	So, at this stage the sensible, conservative

approach is to drop from seven to four and next

week the State Solicitors-General and senior

counsel for Queensland hope - and perhaps Mr Jackson

and Mr Parker cannot get over from the west - hope to

get together to make some final decisions about this

before the next directions hearing before this Court.

(Continued on page 32)

C3T4/2/FK 31 6/9/89

HIS HONOUR:  Mr Rose, granted the uncertainty of this and the

inevitable imprecision of it, do I take it that you

think at the moment that an estimate of four days is,

as it were, a sound an estimate as one can make in

the circumstances?

MR ROSE:	I think it would be, Your Honour, yes.
HIS HONOUR:	Yes, thank you, Mr Rose.
MR JACKSON:	Your Honour, I am sorry to be difficult but - - -

HIS HONOUR: It does not come as any surprise to me,

Mr Jackson.

MR JACKSON:  Your Honour; may I just say these things:

whilst, undoubtedly, some question will go to the

Full Court along the lines of the ones that have

been mooted - and that is an issue inevitably involved

in the proceedings, it may well be, Your Honour, that

there are other issues that do take some time that

it would be desirable to have decided at the same

time and we would seek to have that. Your Honour,

could I say in relation to time that I would

personally regard the estimate of four days, if

that occurs, as being a little short.

HIS HONOUR:  How little?

MR JACKSON: Well, Your Honour, it seemed to me to be prudent

at the moment to keep the existing time and,

Your Honour, one would know next week but not before

then I think.

HIS HONOUR:  When is it suggested that the next hearing ought to

take place?

MR JACKSON:  Your_Honour, can I indicate what we would propose

in that regard and that is that it take place, for

example, next Wednesday.

HIS HONOUR:  Yes.

MR JACKSON:  There will be a meeting as has been mooted of the

representatives of the plaintiff parties on Tuesday

and we would expect then to be in a position to

indicate what issues the parties submit should be

dealt with by the Court. That being so, one would
then know with more accuracy how long the proceedings

are likely to take.

HIS HONOUR:	Yes.
MR JACKSON:	Your Honour, could I say that, whilst one appreciates

that arguments are adopted by the parties, there is a

lot in the case if it goes beyond the one point and

four days, with respect. it would seem to me that it is just optimistic to say

C3TS/l/DR 32 6/9/89

HIS HONOUR:  Yes, perhaps I was getting optomistic, but

counsel were encouraging me to believe that

suddenly there had been an appreciation of the

force of brevity in argument.

MR JACKSON:  Yes, some counsel, Your Honour.

HIS HONOUR: Anybow,what you are doing is firing a warning shot

indicating that the estimate may be a little too

short.

MR JACKSON:  Yes. Your Honou~ I suspect there will be a

number of issues and those issues will not be

capable of really being dealt with in four days.

HIS HONOUR:  Now, is there any other comment that counsel

wish to make? Yes, Mr Rose.

MR ROSE: I just make the comment, Your Honour, that my agreement

to the assessment of four days was based on the

understanding that there will be detailed written

submissions which should assist considerably.

HIS HONOUR:  Yes. ~11 I take it that counsel still have that

in mina.

MR H...L\J.'IDLEY:  Your Honour, the Solicitor-General for New South

Wales and I have been in regular contact with

Mr Doyle and with Mr Parker so I will not s_ay anything

about what my friend's latest instructions from

Western Australia are, but I think there is a view

that among others that the hearing before the Full

Court should be kept as uncomplicated as possible

and that the other issues may not be ones which,

at least some States, would chose to litigate,

depending on the result of this questio~ at all.

HIS HONOUR:  What you mean is that there may be a departure

approach between you and Mr Jackson?

MR HANDLEY: Well there may be, but certainly I do not think

the Western Australian approach is a
majority approach on the part of the plaintiffs
at the moment, but we hope to sort all this out

next Tuesday.

HIS HONOUR: Yes, very well. Well, in the circumstances all

I need do is stand this matter over bu~ Mr Handley,

how long is it expected that the next directions

T6 hearing will take?

MR HANDLEY: Well,it may take a bit longer than this one,

Your Honour, because hopefully we will be asking

Your Honour to agree to question or questions - - -

C3T7/l/CM 33 6/9/89

HIS HONOUR:  Yes, and there may be a dispute between you and

Mr Jackson, for example.- - -

MR HANDLEY: Well,I do not know about that, Your Honour.

HIS HONOUR:	In which you may be supported by Mr Rose.
MR HANDLEY:	It may be that Your Honour might be ma.king one set of

orders in Western Australia against the Commonwealth

and a different set of orders in some of the other

actions.

HIS HONOUR:  Yes. But the reason for my question is this: I

was going to offer the possibility of sitting in

Sydney on Friday week at 9.00 o'clock, but as I

will be sitting in the special leave applications

commencing at 9.30 am that may be insufficient time.

MR HANDLEY:  Yes, that may be a useful backstop, Your Honour,

if we cannot completely finish on Wednesday.

Perhaps drafts could be tidied up and brought back

before Your Honour in Sydney.

HIS HONOUR: Well, what I will do is I will adjourn the matter

until 9.15am in Canberra next Wednesday.

AT 9.35 AM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY 13 SEPTEMBER 1989

C3T 7/ 2/CM 34 6/9/89