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

[2018] HCATrans 122

[2018] HCATrans 122

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 CANBERRA AND ADELAIDE

ON THURSDAY, 21 JUNE 2018, AT 9.59 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.  (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, MS F.J. NAGORCKA, 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:   Mr Solicitor, for the Commonwealth.  I have had an opportunity to read the papers and the draft minute that has been presented.  Obviously, the matter is one of urgency that deserves as much priority as the Court can give it.  Just how much priority the Court can give it may depend upon the issues and when the matter can be ready for hearing.  At the moment, September has been allocated, dates have been allocated for hearings and matters in September, but it is not beyond question that this matter might be able to be accommodated in the September sittings, although that will not be an easy matter.

Obviously, one concern is the length of the hearing.  I see your draft order suggests two days.  Is that dependent upon the issues raised by way of defence by South Australia?

MR DONAGHUE:   Probably.  What we apprehend, your Honour, is that we understand what will be in dispute between ourselves and South Australia and we thought that two days was realistic in those circumstances.  While there are ‑ as your Honour would have seen from the documents, there is essentially a core statutory construction argument and then there is a constitutional argument that arises if the statutory construction argument is decided against the Commonwealth.  They are basically the two main issues and we think it feasible to argue those issues across two days.  It is probably a little tight, given the number of interveners, but we think it is achievable.

HIS HONOUR:   Do you apprehend there is going to be any factual issue between the Commonwealth and South Australia?

MR DONAGHUE:   I do not, your Honour.

HIS HONOUR:   Not in relation to any question of a co‑operative scheme and the extent of co‑operation being a factual matter?

MR DONAGHUE:   Your Honour, at the moment ‑ ‑ ‑

HIS HONOUR:   In relation to the basin scheme and so forth?

MR DONAGHUE:   At the moment I do not anticipate that there will be any dispute between them.  Obviously, it is impossible to be certain about that until we see the defence but at the moment it appears to us that there may be some factual details that need to be ironed out as to the particular employees who were mentioned in the statement of claim and their relationship with the Commonwealth, matters of that kind, and a former employee who is now employed by the New South Wales Government, but I do not currently apprehend a wider factual dispute, which is why we anticipate that it should be possible to produce a special case within a reasonably short time after pleading has been closed.

HIS HONOUR:   Yes.  It did occur to me, I must say, that it might be useful, and possibly necessary, to have the matter mentioned shortly after the due date for the special case so that the Court would then be in a position to see – and to make sure – that the matter is ready to go, that there are not any factual issues that are left hanging and that we can then refer it into the Full Court with confidence that there will not be any problem.

MR DONAGHUE:   Your Honour, I am not at all surprised to hear you say that.  Indeed, at one stage the timetable built that step in.  In the end, we took it out on the basis that there was liberty to apply and that either ourselves or South Australia would bring it straight back to the Court if there was a problem but I certainly do not oppose that course if your Honour is minded to take it.

HIS HONOUR:   Well, it would be useful, I think, as a means of being able to ensure – I am thinking about 30 July as the date for the mention – it would be useful to have that date so that we can then – the Court will then be in a position to know for certain that the matter can proceed when it is set down.  It may be that that could be September but hopefully if not September, without making any promises, October.

MR DONAGHUE:   Yes.  Certainly, your Honour.  Well, as I say, I do not oppose that.  It would, if it is feasible for the Court, I think be of assistance to the parties just in terms of the timetable to know whether we are realistically aiming towards September because the timetable we have proposed would have the matter ready by the second week of the September sittings.  We thought that that was about as fast as it was possible properly to do it, but if that is not realistic we have thought about dates that would work for October as well and I can propose some alternatives to your Honour if you think that is more realistic.

HIS HONOUR:   As I say, I cannot make any promises, but September is not entirely out of the question.  It might be tight, it might be difficult, but all I can say really is it is probably worth the effort.

MR DONAGHUE:   In that case, your Honour, we are content to – if your Honour is content with them, to proceed with the dates that we proposed in the minute that has been submitted to the Court.  Can I just make a couple of quick points about that minute, one by way of correction and just to highlight two other matters?  In paragraph 6 of the minute there are some words missing.  So after the reference to the High Court Rules on the second line the words “is to be filed by the plaintiffs” should be added.

Then can I just alert your Honour to a couple of other matters?  The first is that order 7(b) involves a departure from the ordinary provision of Part 44 in that ordinarily an intervener who is not intervening in support of one or other party follows all of the other parties but, really, that order applies to New South Wales only, as I understand it, and the effect of it is that to the extent that because New South Wales is supporting the plaintiffs in part their submissions would need to be filed before South Australia’s to give South Australia an opportunity to respond to anything New South Wales says in support of the plaintiff.  New South Wales can speak for themselves but I do not apprehend that to be controversial, but that is why that has been done.

HIS HONOUR:   I understand.

MR DONAGHUE:   In relation to 7(e), we have sought an extension of the page limit for the reply because we will need to respond not just to the defendants but to quite a number of intervening States supporting the defendants, so that is the rationale for that.

HIS HONOUR:   Sure.

MR DONAGHUE:   Finally, your Honour, you may have seen that we filed an amended writ of summons on Tuesday of this week, the amendment simply deleting one paragraph of the final relief claimed.  South Australia consented to that amendment but I understand we need your Honour’s leave.

HIS HONOUR:   You have got that leave.

MR DONAGHUE:   Thank you, your Honour.  Unless there is anything further, your Honour, we are content with those orders, with the addition of the returning for directions on the 30th, as your Honour proposed.

HIS HONOUR:   All right.  Well, I might just hear from Mr Bleby.

MR DONAGHUE:   Thank you, your Honour.

HIS HONOUR:   Mr Solicitor for South Australia.

MR BLEBY:   Thank you, your Honour.  Yes, South Australia supports that timetable, your Honour, and with respect, sees the value of slotting in a mention for 30 July.  It is obviously our preference to aim for a September listing, if it is possible, and there have been some discussions about an alternative October listing, but your Honour will appreciate, of course, the nature of the subject matter that we are keen to have it on ‑ ‑ ‑

HIS HONOUR:   There is no question that you will be given every priority that we can give.

MR BLEBY:   Thank you, your Honour, I am obliged.  So, to that end, your Honour, I support and adopt everything that the learned Solicitor for the Commonwealth has said and those various amendments to the normal course of the Rules are with our consent.

HIS HONOUR:   Okay, thanks for that.  Mr Solicitor for Queensland.

MR DUNNING:   Your Honour, the interveners for whom I appear had in fact suggested a conventional arrangement for the intervener’s submissions for those who might intervene on both sides.  That said, all of the three that I appear for have, to date, indicated they are intervening in support of the defendant.  We would have preferred it the other way but I have heard what the Solicitor for the Commonwealth has said so we will not press that; we are content with it, thank you.

HIS HONOUR:   Thanks, Mr Dunning.  Mr McDonald.

MR McDONALD:   Yes, thank you, your Honour.  I can confirm that from New South Wales’ point of view, we are content with the proposed order of submissions.  We will be supporting the Commonwealth in relation in a broad way – if I could put it this way – the Chapter III question and the associated questions of construction and we will be supporting the Commonwealth in relation to the question of construction of sections 10 and 11 of the Royal Commissions Act and whether they bind the Executive and, in particular, the Executive of other polities, and we expect that we will

be opposing the Commonwealth in relation to the argument based on Cigamatic and Henderson’s Case.

HIS HONOUR:   Okay.  Thanks for that, Mr McDonald.

I think then in relation to the minute of the proposed orders, what I propose to do, without wishing to cause anyone any alarm, is to for the moment delete paragraph 5, to make paragraph 6 paragraph 5 and to insert a new paragraph 6 that reads:

The matter be mentioned on 30 July 2018 with a view to referring the special case to the Full Court for hearing during the next available sitting of the Full Court on an estimate of two days.

Otherwise, with the amendment that you mentioned, Mr Donaghue, the directions I will make will be in accordance with the minutes of proposed orders initialled by me and placed with the papers.

MR DONAGHUE:   If the Court pleases.

MR BLEBY:   Thank you, your Honour.

HIS HONOUR:   Very well, adjourn the Court please.

AT 10.11 AM THE MATTER WAS ADJOURNED