The Commonwealth of Australia & Anor v Commissioner Bret Walker SC & Anor

[2018] HCATrans 135

[2018] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Canberra  No C7 of 2018

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

First Plaintiff

THE MURRAY-DARLING BASIN AUTHORITY

Second Plaintiff

and

COMMISSIONER BRET WALKER SC

First Defendant

THE STATE OF SOUTH AUSTRALIA

Second Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE AND ADELAIDE

ON MONDAY, 30 JULY 2018, AT 9.58 AM

Copyright in the High Court of Australia

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   May it please the Court, I appear for the plaintiffs in that matter, your Honour.  (instructed by Australian Government Solicitor)

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear for the second defendant, with my learned friend, MR W.V. AMBROSE.  (instructed by Crown Solicitor’s Office (SA))

MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland:   May it please the Court, with my learned friend, MR A.D. KEYES, for the Attorneys‑General for Queensland, Tasmania and Western Australia, intervening.  (instructed by Crown Solicitor (Qld), Solicitor‑General (Tas), State Solicitor’s Office (WA))

MR S.A. McDONALD:   May it please the Court, I appear for the Attorney‑General for New South Wales who intervenes.  (instructed by Crown Solicitor (NSW))

HIS HONOUR:   I have read the special case.  I am content to refer it to the Full Court.  Unfortunately, the matter cannot be accommodated, with the best will in the world, in September, so the matter will be referred to the Court in the October sittings.  I am sorry, we just cannot do better than that.

MR DONAGHUE:   I understand, your Honour.  We appreciate the efforts, thank you.

HIS HONOUR:   Two days is still the estimate?

MR DONAGHUE:   It is, your Honour, yes.  We wanted to explore with your Honour whether you would be prepared to give us a modest extension of the written page limit which I understand may be request that is echoed by South Australia.  We are quite far advanced in our drafting process and it is ‑ ‑ ‑

HIS HONOUR:   So how modest are we talking about?

MR DONAGHUE:   25 pages, your Honour.

HIS HONOUR:   Yes, that is fine.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   That is the same for you, Mr Bleby?

MR BLEBY:   Thank you, your Honour, yes, a limit of 25 pages, not an extension of 25 pages.

HIS HONOUR:   Yes.

MR DONAGHUE:   That is what I meant, your Honour.

HIS HONOUR:   Yes.  Thanks, Mr Solicitor for the Commonwealth.  Thanks, Mr Bleby.  Mr Dunning.

MR DUNNING:   I am for the intervening States.  We have nothing useful to add, thank you, Justice Keane.

HIS HONOUR:   And you see no reason why the matter cannot be dealt with ‑ ‑ ‑

MR DUNNING:   In October?

HIS HONOUR:   ‑ ‑ ‑ in two days?

MR DUNNING:   In two days?  No, certainly, within two days.

HIS HONOUR:   Very well, then, pursuant to rule 27.08 of the High Court Rules 2004, I refer the questions of law raised by the special case agreed by the parties and filed on 23 July 2018 for the opinion of the Full Court at the hearing in the October sittings of the Court. I do not think I need to make any formal order allowing the modest extension of the written submissions which the plaintiff and the defendant have sought. I note that that variation has been consented to by the parties and by the Court.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   Are there any other matters?

MR McDONALD:   Your Honour, might I raise something?

HIS HONOUR:   Yes.

MR McDONALD:   The current timetable for written submissions has been fixed on the basis of a potential September hearing and from New South Wales’ point of view we would seek perhaps an extension of the written submissions timetable, for us at least, by perhaps a week, if the Court could accommodate that.  We are a bit pressed with the timetable that currently exists.

HIS HONOUR:   All right.  So that would take you to?

MR McDONALD:   I think 17 August.

HIS HONOUR:   Very well.  Does anyone have a difficulty with that?

MR DUNNING:   No, thank you, your Honour.

MR DONAGHUE:   No, your Honour.

MR BLEBY:   No, your Honour.  Just think about what might flow on from that then.  New South Wales, because they are partly in support of the Commonwealth, go early, that would take them to three days before us.  I think perhaps it might be an idea then if the balance of the timetable was extended out by a week in each case.  That should cause no difficulty, I think.

HIS HONOUR:   Very well, then, what I will do is I will vary paragraph 7 of the orders made on 21 June 2018 by ordering subparagraph 7(b) from 10 August so that it now provides 17 August and subparagraph (c) so that it now provides 27 August.  Mr Dunning, I do not think any further alteration is necessary, is it?

MR DUNNING:   No, I do not think so, your Honour.

HIS HONOUR:   No, very well.  All right, well, I will make those variations.

MR DONAGHUE:   Sorry to interrupt, your Honour, but I think a further variation may be necessary because otherwise Mr Dunning and the other interveners will be before South Australia, so I think paragraph (d) needs to become 29 August.

HIS HONOUR:   Very well.  So I will alter that to 29 August.

MR DONAGHUE:   And then our reply will also need to move but we are changing months.  Could it move to ‑ ‑ ‑

HIS HONOUR:   5 September, is it?

MR DONAGHUE:   Yes, your Honour, but if you would be prepared to give us until – I will be on another matter overseas in that week so if we could have until 12 September that would be helpful.

HIS HONOUR:   Does anyone have a difficulty with that?

MR DONAGHUE:   No objection, thank you, your Honour.

MR BLEBY:   No, your Honour.

HIS HONOUR:   Very well.  So, subparagraph 7(e) will be altered so that it now reads 12 September.

MR DONAGHUE:   And paragraph (f) probably should also change to about maybe 14 September.

HIS HONOUR:   Or 15 September, I think.

MR DONAGHUE:   I think that is a Saturday, your Honour.

HIS HONOUR:   Is it?  All right.  Well, let us make it the 19th.  So, subparagraph 7(f) is 19 September.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   Apart from that, are there any other matters?

MR McDONALD:   No, your Honour.

MR BLEBY:   No, thank you, your Honour.

HIS HONOUR:   The costs of today are costs in the cause.

MR DONAGHUE:   If the Court pleases.

HIS HONOUR:   Adjourn the Court please.

AT 10.05 AM THE MATTER WAS ADJOURNED