Theophanous v Commonwealth of Australia

[2005] HCATrans 385

[2005] HCATrans 385

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M22 of 2005

B e t w e e n -

ANDREW CHARLES THEOPHANOUS

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 6 JUNE 2005, AT 9.01 AM

(Continued from 4/5/05)

Copyright in the High Court of Australia

MR R.M. NIALL:   May it please the Court, I appear for the plaintiff.  (instructed by Zindilis Barristers & Solicitors)

MR C.J. HORAN:   If the Court pleases, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Now, where are we up to?

MR NIALL:   If your Honour pleases, on the last occasion your Honour directed that the plaintiff file and serve a draft case stated.  That occurred, although a day late, for which we apologise, your Honour.

HIS HONOUR:   Yes.

MR NIALL:   The defendant has replied to the draft suggesting some changes ‑ ‑ ‑

HIS HONOUR:   Yes, I have seen that.

MR NIALL:   ‑ ‑ ‑ which we have incorporated, your Honour, into a document and I seek leave to hand that up to your Honour.

HIS HONOUR:   Yes.

MR NIALL:   Your Honour, we have picked up the suggestions of the defendant and I understand from my learned friend that the defendant is now content with the form of the draft case stated.

HIS HONOUR:   Yes.  Can I raise a number of matters about it, varying from the trivial to perhaps matters of some substance, perhaps not.  If we go to paragraph 10, subparagraphs c and d, the charge is recorded as being that contrary to specified provisions of the Crimes Act, “being a member of the House of Parliament”.  It is not “being a member of a House of Parliament”?  Do not trouble now.  It occurred to me that most likely if it was not it ought to have been “being a member of a House”, but simply notice that.  As I say, that is perhaps trivial.

MR NIALL:   Yes, your Honour.

HIS HONOUR:   Paragraphs 11 and 15, however, are matters that go together.  You provide in the draft for annexing to the draft case stated in the one case the sentencing remarks, in the other case the statement of the Minister’s reasons.  What is the intended status of those documents?  By that I mean this.  Is it intended that those documents should be evidence of the facts contained in them, that the relevant matter is simply that this is what was said, whether true or not?  What exactly is the status of the documents annexed?

Now, again that may be a matter that the parties need to think about.  It may be a matter that the parties have given attention to already.  What I am anxious to avoid is that we get into a Full Court and one side say, “Well, the statement of facts recorded in the sentencing remarks reveals (a), (b), (c); those are facts which are agreed for the purpose of the proceeding and they are legally relevant”, and the other side say, “No, that’s not what’s intended”.  So I want to have the parties direct their attention specifically to what the status of the annexed documents is. 

Before I ask you for an answer to that let me complete the shopping list.  In questions 1 and 2 the formula is used, is Part 2 of the identified Act “invalid insofar as it applies to the application”?  Is that the intended formulation of the question?  Is a narrower question intended, namely, is it invalid insofar as it purports to authorise the application?  I know that sounds, perhaps, a trivial drafting question but again I think we need to have the closest attention given to the formulation of the question now rather than in front of the Full Court later when people take differing views.

Now, Mr Niall, if you want to make answer to that shopping list of questions, do.  If you want to take it on notice, do.

MR NIALL:   Perhaps the latter, your Honour, if it is convenient to your Honour. 

HIS HONOUR:   Yes.

MR NIALL:   Certainly in relation to the reasons attached to paragraphs 11 and 15, there may well be differences between the two.

HIS HONOUR:   I want to flush that out and sort it out now.  I do not want to have the fight break out later.

MR NIALL:   And certainly we will perhaps speak with our learned friends and get a position which is absolutely crystal clear in respect of the use to which any document might be put by the parties.

HIS HONOUR:   Yes.

MR NIALL:   And there will not be any ambiguity, your Honour.  In relation to the form of question that your Honour has raised, with respect, I think the better question ‑ ‑ ‑

HIS HONOUR:   Well, again, can I suggest do not do the drafting on the run.  Drafting on the run always tends to run into difficulties, so better you go away, write it down, put it aside for half an hour, come back to it and then think about it again.

MR NIALL:   Thank you, your Honour.

HIS HONOUR:   But, again, I am anxious that we get it right.

MR NIALL:   Certainly, your Honour, those matters can be resolved, at least so far as the parties are concerned, I am confident in a short period of time.

HIS HONOUR:   Let me perhaps hear from Mr Horan and then let us work out where we go to from here.

MR NIALL:   If your Honour pleases.

HIS HONOUR:   Now, Mr Horan, you have heard the shopping list.

MR HORAN:   Yes.

HIS HONOUR:   Do you want to be heard in answer to the shopping list or do you want to go away and think about it?

MR HORAN:   I think it sounds like the best course is for the parties to discuss between themselves the position in relation to each of those matters.

HIS HONOUR:   Yes.  Now, can I present a practical problem to you both.  I will not be sitting in Melbourne again before August, after the end of this week.  I have this week available during which I can sit in Melbourne.  Beyond that we will be looking over possibly for the last week in July, but more likely August before I would sit again in Melbourne.  Now, that is simply a piece of information that you should take account of.

There is this further aspect to it that I am anxious that the parties not be put to the cost of coming for a directions hearing again, but we need to give some thought to what we do to record anything that is said between you or agreed between you or stipulated between you about what use is to be made of these documents.  We have to have something that a Full Court can look back at.  It may be that you could mention the matter again, either later today or some time during the week.  Again, I leave it to you.  Can I simply ask you to stay in touch with the Registrar and sort out what you want to do.

Subject to anything you say, what I am minded to do is simply adjourn the directions hearing to a date to be fixed making the costs of the directions costs in the proceeding, but there is evident advantage (a) in getting it together soon; (b) in recording for others to observe any basis that is reached about what we are doing about the significance of attached documents and the like.

MR HORAN:   Yes, your Honour.  It may be that later this morning it might be possible for the parties to resolve, but if not then some time later this week would be ‑ ‑ ‑

HIS HONOUR:   What I had in mind was perhaps mention it late in the day, 4 o’clock or something like that, after Court when you have had a chance to consult your solicitors and leaders and all those who need to put their initial in the appropriate box and mark it as approved, but if we cannot do that we can mention it some time later this week perhaps.

MR HORAN:   If your Honour pleases.

HIS HONOUR:   But otherwise, if I make those orders, simply adjourning it to a date to be fixed and make the costs of today costs in the proceeding.

We will adjourn.

AT 9.12 AM THE MATTER WAS ADJOURNED