Travel Essence Pty Ltd & Ors v Young & Anor

[2020] HCATrans 79

[2020] HCATrans 079

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S87 of 2020

B e t w e e n -

TRAVEL ESSENCE PTY LTD ACN 143 823 590

First Plaintiff

MERMAID 007 PTY LTD ACN 621 539 295

Second Plaintiff

SUPER SERVICES GROUP PTY LTD ACN 617 650 138

Third Plaintiff

PAUL JEFFREY

Fourth Plaintiff

ZALI BURROWS

Fifth Plaintiff

and

JEANNETTE YOUNG, THE CHIEF HEALTH OFFICER FOR THE STATE OF QUEENSLAND

First Defendant

THE STATE OF QUEENSLAND

Second Defendant

Directions hearing

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 10 JUNE 2020, AT 12.00 PM

Copyright in the High Court of Australia

___________________

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the plaintiffs with my learned friend, MR R.W. HADDRICK.  (instructed by Mahoneys)

MR G.A. THOMPSON, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear on behalf of the defendants with my learned friend, MS F.J. NAGORCKA.  (instructed by Crown Law (Qld))

HER HONOUR:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honour will have seen that this matter has been listed pursuant to liberty to apply and there is an application before your Honour for the issue of a subpoena in a particular form which your Honour has annexed as exhibit MJD‑4 to the affidavit of Mr Downes.  Now, can I commence by reading the affidavit of Mr Downes and tendering the exhibits which are annexed to that affidavit?

HER HONOUR:   Yes, I have read the documents.

MR REYNOLDS:   May I take them as read and tendered, your Honour?

HER HONOUR:   Yes, Mr Reynolds.

MR REYNOLDS:   Thank you.  I do not understand there to be any evidence for the defendants.  Is it convenient if I proceed to submissions?

HER HONOUR:   Yes, please.

MR REYNOLDS:   Now, your Honour will I hope already have seen that there have been some written submissions filed on behalf of my client yesterday and I will not repeat all of the arguments contained therein, and I assume that your Honour has had some opportunity to see those submissions and to read them.  We received at about 10.30 this morning some submissions from the defendants and I will attempt to deal with points that are raised therein in a moment.

In terms of our argument, your Honour will have seen the terms of the draft subpoena which is the last document annexed to Mr Downes’ affidavit and which essentially seeks a copy of all documents before the Chief Health Officer when she decided to give the Border Restrictions Direction No 5 together with any record of her reasons for giving the direction.

Now, we submit that that is not only a document which is relevant to the proceedings but of critical relevance and I will come back to the test of relevance in a moment.  Your Honour is familiar with paragraph 42(a) of our statement of claim which talks about whether there were reasonable grounds et cetera on the material before the Chief Health Officer and at the end of paragraph (a) we have referred to further particulars being provided.  Those particulars were provided in a letter which your Honour will have seen annexed to – or, rather, exhibited to ‑ ‑ ‑

HER HONOUR:   Well, I have seen the letter, Mr Reynolds, but I had not understood that they were particulars provided.  As I understood the letter, it was an assertion that the current pleading should be read in a way which allowed a further case.  They are not said to be particulars and, of course, the defendants have not pleaded to them, you have not sought leave to amend to add them as particulars to, in effect, create this new case.

MR REYNOLDS:   Well, your Honour, we say two things.  First of all, that it is within the case already pleaded, but if your Honour goes, secondly, to the ‑ ‑ ‑

HER HONOUR:   Well, Mr Reynolds, you know my view on that.  I gave it at the last directions hearing on 4 June.  I do not accept that the matter that the statement of claim, as presently pleaded, raises a case that there was no evidence before the first defendant which was capable of giving a basis for a belief that the border restriction directions were reasonably necessary and you have not sought leave to amend to raise such a case.  Of course, you would only do so if as counsel who would have to sign – put your name to the pleading – you were prepared to say that there was a basis for such a plea.

MR REYNOLDS:   A sufficient basis to plea, and we do say that.  We assert that on the material before the Chief Health Officer there were not reasonable grounds to believe that it was necessary to give the border restrictions direction.

HER HONOUR:   Well, whether the Solicitor’s letter of 6 June is the basis upon which you wish to proceed is hypothetical at the moment because it is not part of a pleading.

MR REYNOLDS:   Well, your Honour will see from that page, at about point 7 on the page, we say “please take this as further and better particulars of the contention”, and we maintain that it is and that each of those matters are particulars of what is in paragraph 42(a), that it was not formed reasonably – that is, the word ‑ ‑ ‑

HER HONOUR:   I will only say it one more time, Mr Reynolds.  I have not changed my view from last week that they are not further and better particulars of the present pleading.  If the plaintiffs wish to raise such an allegation they would need to amend their pleading to raise it.  Can I say at this point, I am somewhat perplexed about the plaintiffs’ approach to this matter?  What you seek to raise here, as the defendants have correctly pointed out, in the whole of paragraph 42 and in this further plea, are really no more than applications for judicial review raising questions of whether something is authorised under a statute or whether there was a rational basis for the decision made.

It is not the main issue. The main issues in this are constitutional questions under sections 92 and 117 of the Constitution, and there are three proceedings currently before the Court which are being case managed towards an urgent hearing in the week commencing 29 June.  The two other matters are following their timetable and they have raised the same constitutional questions.  They have not raised a judicial review question.

But the approach taken by the plaintiffs here in pursuit of these subsidiary – what I will call subsidiary questions because they are not the kind of constitutional questions that this Court would normally seek to hear on a very urgent basis – these kind of issues jeopardise the whole prospect of your client’s case being able to be in a position to be heard with the other two matters, as they should be if at all possible.

I am, quite honestly, quite perplexed about whether the plaintiffs realise that they are putting at risk that possible early hearing.  The matters raised in paragraph 42, even as they are presently pleaded, let alone as you would want to further expand them, raise questions which there must always be doubt about whether or not you are going to have agreed facts necessary for a special case to be listed for hearing, and that listing should occur on Friday of this week when the other two matters are returned for directions with this matter.

Your draft special case is due this afternoon.  Even if I made orders for discovery, I would not even entertain the subpoena.  Even if I were to make orders for discovery, there is no way that the current timetable could be kept, making it almost impossible, I would say impossible, for the matter to be in a position where I could be confident on Friday to set it down for hearing with the other matters.  So I am just somewhat perplexed, as I have said, about why the plaintiffs are pursuing this course.  The Court is trying to case manage the matter for an urgent hearing, but I really do not see that the plaintiffs’ approach is quite on the same tracks.

MR REYNOLDS:   Well, your Honour, can I respond to that?

HER HONOUR:   Yes, please.

MR REYNOLDS:   We have included this judicial review aspect of the case advisedly, it is part of the matter.  We do not believe that it will raise any substantial issues of fact at all, it will be based purely on the material that was before the officer, before she gave the direction that there is a public interest in the whole of the matter being determined, and the fragmentation is undesirable.

We also believe that there will not be a great deal of material to be provided, when the material before the decision‑maker is provided.  Until that material is provided, one cannot say whether this is going to blow out the number of issues in the matter substantially or not, and we submit that it is appropriate for this material to be provided, and then, if necessary, a further judgment can be made about whether it is appropriate to include this in the hearing in the week starting 29 June.

If, of course, it throws up issues of fact that are too complex and would take too long to resolve, then certain consequences may follow.  But the other thing is that, we submit it would be undesirable, given that there is a clear public interest in the resolution of all the issues in this case, that the matter proceed piecemeal, and where if, where the direction could continue even though it may well be vitiated on administrative law grounds, so we suggest that the appropriate course ‑ and as I say, we do this advisedly ‑ is for this material to be produced.  It may, for example, be that there is not any material in this category, in which case that will be a very easy case.  Or it may be that one or two documents constitute all the material.

We are, to say the least, suspicious that that may well be the case, and that has been the primary reason for the stiff‑necked refusal to provide

this material even though it is provided routinely in almost every administrative law case throughout the country.  So that is the reason why we are proceeding as we are, your Honour, and we do not, as presently advised, think that this is going to be a matter that will be anything more than a series of written submissions on the basis of that material.

If, as I say, it turns out that things are different from that, then certain consequences may follow, but that makes it all the more desirable, in my submission, that this material be provided immediately and that the Health Officer not be able to hide behind these arguments that are being put.

HER HONOUR:   Mr Reynolds, there is absolutely no warrant for you to speak like that.

MR REYNOLDS:   Well, your Honour, all I am saying ‑ ‑ ‑

HER HONOUR:   If you are speaking ‑ if you are making statements like that, making allegations against the Chief Health Officer for the purpose of the media, I hope they do not report it.

MR REYNOLDS:   I am not making statements for anyone other than your Honour and my learned friends.

HER HONOUR:   Well, I find that a little difficult to believe.  But, Mr Reynolds, you say that this is in issue.  It is not in issue.  The statement of claim has not been amended and the defendants have not pleaded to what you say were further and better particulars provided in the letter of 6 June.

MR REYNOLDS:   Well, we submit they should have.

HER HONOUR:   Are you seeking leave to amend or are you not?

MR REYNOLDS:   Your Honour, we say we do not need leave to amend but if I have to seek leave to amend, then I seek it.

HER HONOUR:   It is a matter for you, Mr Reynolds.  Do you wish – if you seek leave to amend you can put an amendment before the Court.

MR REYNOLDS:   Your Honour, without prejudice to the present application, I am happy to seek leave to amend.

HER HONOUR:   I will hear from the Solicitor about that application, just about the application for leave to amend in terms of the letter of 6 June.

MR THOMPSON:   Yes, your Honour.  Well, it is opposed and there cannot be any basis, in our submission, for those particulars, if they are

particulars, to be advanced in the face of what our learned friend said to your Honour last Thursday.  It is nothing more than bare allegations for the purpose of laying some foundation to pursue an application for disclosure.  There is not a single fact which has been put before your Honour, and it is clear that our learned friends do not have any facts to support those allegations, and they are serious allegations.  Those are our submissions, your Honour, we oppose it.

HER HONOUR:   In response, Mr Reynolds, it is said that this is a fishing expedition, which was the preliminary view I expressed last week.

MR REYNOLDS:   Your Honour, we would submit we have more than enough material to plead these matters.  We have sufficient basis for making those allegations, including on the material that is publicly available, and if necessary to do so and again without prejudice to my primary application, then we ask that leave to amend be granted.

HER HONOUR:   You would, of course, always be able to bring this additional matter as a matter for judicial review in the Federal Court, would you not?

MR REYNOLDS:   Your Honour appreciates there is a great deal of urgency with all of these matters and it may be that our best case is the judicial review case, and it would be a great shame if this decision was vitiated and it was pushed down the line to the Federal Court and we only dealt with part of the issues.  We submit that the convenient course is for this material to be produced as it is ‑ and I underline this ‑ in almost every administrative law case there is a notice to produce for the material before the decision‑maker.  It should be produced.

HER HONOUR:   Yes, Mr Reynolds, when there is some reason to believe that the material does not have any support at all for the decision made.  That is not this case.  This is par excellence a fishing expedition and one which would mainly result in time being lost and this matter not proceeding to a hearing on the main issues before this Court.

MR REYNOLDS:   Your Honour, a fishing expedition is where, if you are trying to ascertain whether there is a case that you could plead, we have pleaded it, we have particularised it and we press it.  All we need is the further material in order to flesh out the detail of the case.  We were not able to do that last time and, obviously, we need it in order to flesh out the detail of the arguments and provide references to that but we still press this case.

HER HONOUR:   Yes, thank you, Mr Reynolds.  I consider that the particulars provided in the letter of the plaintiffs’ solicitors of 6 June now

sought to be raised by amendment to the statement of claim contain bare assertions and as such ‑ and given the need to manage this case towards a hearing ‑ leave to amend is refused.

MR REYNOLDS:   Your Honour, I will proceed, as I said, with the remainder of my arguments.

HER HONOUR:   Yes.

MR REYNOLDS:   Can I say I would ask for reasons for the refusal of leave in due course.  Can I deal – and I have put most of the arguments that I wish to put in terms of the primary application and we have dealt with this issue of a fishing expedition.  So far as the assertion is concerned that we are using the subpoena as a substitute for discovery, we are not seeking all of the documents that are relevant to a particular matter.  We are simply seeking the documents and material that are conventionally sought on a judicial review case based on no reasonable basis in the material. 

As I said, there are thousands of cases where that has occurred.  If it were otherwise, one could never run a case in relation to the material before the decision‑maker because one cannot get its contents.  Now, also we submit that this is not seeking discovery where that would not be obtained for the reasons that I have just mentioned.  So, I press my application for the issue of the subpoena and those are my submissions.

HER HONOUR:   Yes, Mr Solicitor.

MR THOMPSON:   May it please the Court.  Can I firstly just identify that there is a correction that needs to be made to our written submissions which I take it your Honour has a copy of.

HER HONOUR:   Yes, I have.

MR THOMPSON:   I think we inappropriately on page 2 attribute to your Honour something said by Mr Reynolds at the foot of the page.  Your Honours, the transcript is at line 85 on page 4, your Honour said:

None of it, so far as I can see, is as yet alleged.

The word “Mr Reynolds” should appear immediately under that.  I do apologise for that, your Honour.

HER HONOUR:   I see.  That is ‑ ‑ ‑

MR THOMPSON:   Your Honour, we have outlined in the written submissions why we say this is a fishing expedition, and based upon what

was conveyed to the Court by our learned friend last Thursday there can be no basis, in fact, to advance the particulars, if we call them that, in the letter of the 6th other than to try and lay a foundation for a fishing expedition.  Whether one characterises this as documents to be obtained on subpoena or whether one characterises it as discovery, the same principles apply to both.

It is a complete answer, in fact, in relation to the issue of a subpoena duces tecum between parties to proceedings that is directed to obtaining the documents which would potentially be the subject of discovery.  That is a complete answer to this application for the issue of a subpoena.  That is identified in a number of the authorities ‑ I will not take your Honour to them all in detail ‑ in our written submissions.  It starts with the statement by Sir Frederick Jordan in Small’s Case and that has been consistently followed.  This is a case which falls very much precisely within a passage from Justice Brennan in WA Pines.

HER HONOUR:   I understood Mr Reynolds to seek discovery last week.

MR THOMPSON:   He did, your Honour.  Whether that application was properly characterised as discovery in circumstances where the pleadings had not been closed is another question but that is what he sought, your Honour and your Honour dealt with that.  Unless there is some specific matter within our written submissions that your Honour would require me to further clarify, we rely on our written submissions.

HER HONOUR:   Anything in response, Mr Reynolds?

MR REYNOLDS:   Yes, your Honour, I did not seek discovery last week, I simply raised it as a matter which we did not think would be in dispute.  It is a provision in the document that is always provided in these sorts of matters as part of the directions.  We made no application for discovery at all.

HER HONOUR:   I seem to recall a conversation in relation to the subpoena which you said you were not pursuing because you were seeking a direction by way of production of documents from the Court.  Is my recollection faulty?

MR REYNOLDS:   That is not my recollection, your Honour, but I cannot say I have reread the transcript with that in mind.  All we are about – all we were about on the last occasion is pointing out, as I said, we cannot put the detail to these various allegations although we can make the assertions that we have referred to in the pleadings to it in the particulars.  This case cannot proceed effectively without this material before the decision‑maker and I submit that it is as clear a case as one could see for the provision of that material.

HER HONOUR:   The plaintiffs sought production of documents from the defendants by way of directions from this Court in the hearing on 4 June.  That application was refused on the basis that no issue was raised on the plaintiffs’ pleading to permit discovery of those documents.  This application for a subpoena to be issued to the defendants to produce the same documents is, I apprehend, brought to overcome deficiencies in the pleading.  It is not properly brought.  The correct approach would be for a matter capable of being pleaded to be raised and responded to by way of defence and discovery sought in light of those issues.  I have heard a further oral application for leave to amend the statement of claim and I have refused it on the basis that there is no ostensible basis for the plea and the timetable towards a hearing does not allow for it.  In any event, on either basis, whether by way of application for subpoena or for production of documents, there is no basis for the making of an order that the documents be produced.

This is, par excellence, a fishing expedition and the authorities of this and other courts are perfectly clear.  The courts will not make orders of this kind when no basis in fact at all is shown for them.  The application for subpoena is refused.

Where does that leave the ability of the parties to proceed with the matters the subject of directions until the further directions hearing on Friday, Mr Reynolds?

MR REYNOLDS:   What I was going to suggest, your Honour, given that we are due to provide a draft special case today and we have been tied up yesterday and today with this issue, is that the timetable be pushed back by one day, certainly in that respect, and probably in other respects.

HER HONOUR:   That means that you will not be able to be considered to be set down for hearing when I consider the other cases, whether they are ready to be set down in the week commencing 29 June.

MR REYNOLDS:   I am sorry, I do not quite follow that, your Honour.

HER HONOUR:   As I mentioned earlier, on Friday the two other matters which raise constitutional questions concerning the border closure are back before the Court for directions.  If they are in a position where the facts are agreed, as was foreshadowed to the parties and I think by the Registry with your solicitors, the possibility of listing for a hearing date in the week commencing 29 June is due to be discussed on Friday.  The time you have taken up on this issue has now meant that you are obviously not in a position to be a part of that discussion on Friday.

MR REYNOLDS:   Your Honour, I do not know, with respect, that that is right.  What it has done is thrown out our preparation of the draft special case.

HER HONOUR:   But the other parties will be in a position to tell me whether or not they are able to agree facts to enable a special case to be put before a Full Court.  You will not be because you have lost your timetable.  You will not probably even have a special case draft out by then, let alone have given an opportunity to the defendants to see whether they can agree the facts necessary to it.  What orders are you proposing?

MR REYNOLDS:   Your Honour, could I suggest this.  If order 3 of the previous orders is adjusted so that we are given until late this evening to provide a draft special case, then we can attempt to do that.

HER HONOUR:   Is that realistic, Mr Reynolds?

MR REYNOLDS:   Well, my difficulty is that I cannot talk to my learned juniors at the moment, but that is my surmise about that case, given my discussions with them.

HER HONOUR:   You were initially minded to ask for a further day, is that right?

MR REYNOLDS:   Initially, yes, your Honour.  That would be preferable, obviously, but…..until ‑ even if it said 10.00 pm tonight and we will do our best and see how we go.

HER HONOUR:   I am not sure the defendants want to receive your special case at 10.00 pm tonight.  There is not much point.  You might as well leave it over for tomorrow, realistically, by 4.00 pm on the 12th.  And then how long would you allow the defendants?

MR REYNOLDS:   I think the 12th is the Friday.

HER HONOUR:   I am sorry, you are quite right.  So what you are talking about is that the order ‑ directions to be amended to allow you to – have you filed a reply or are you in a position to file a reply, the subject of 2(a)?

MR REYNOLDS:   No, we have not.  We have ‑ ‑ ‑

HER HONOUR:   So both of those will be extended to 4.00 pm on 11 June and then you would allow the defendants 4.00 pm on 12 June, except that they are rather busy in Court that day.

MR THOMPSON:   Could I address your Honour on that?

HER HONOUR:   Yes, Mr Solicitor.

MR THOMPSON:   Your Honour, that is very difficult for us because of the Court list?

HER HONOUR:   So it would have to go over to Monday.

MR THOMPSON:   Monday would be preferable, your Honour.  Even if it required us to perhaps provide the response by midday Monday to try and get the directions back on foot.

MR REYNOLDS:   Your Honour, can I respond to that?

HER HONOUR:   Yes.

MR REYNOLDS:   I would rather try and get the special case in draft to the defendants today, and I would ask ‑ ‑ ‑

HER HONOUR:   By 4.00 pm?

MR REYNOLDS:   Well, your Honour, either that or – I do not think, with respect, they are unduly prejudiced if we were to give it to them early this evening.

HER HONOUR:   Well, they would need longer to respond, then.  I would simply push out the time for them to respond, in any event.  I think we should proceed on a realistic footing, Mr Reynolds.  So the directions previously given will be amended so that order 2 reads: 

By 4.00 pm on 11 June the plaintiffs file and serve any reply and serve on the defendants a draft special case.

Order 3 will be amended to read:

By 4.00 pm on 15 June the defendants serve on the plaintiffs any proposed amendments to the draft special case.

Following paragraph 4:

By 4.00 pm on that same day, 15 June ‑

Well, you would need longer than that, would you not, to file and serve any special case that has been agreed?

MR REYNOLDS:   Your Honour, could I suggest this.  If your Honour goes to orders 2 and 3, if we were both given until 7.00 pm, that would be both fair and consistent with the previous timetable and just gives both parties an extra three hours.

HER HONOUR:   No, I do not think it is, actually, Mr Reynolds.  You have spent two days pursuing this unnecessary course and I do not think that the defendant – they are running not only one case, they are running three ‑ I am sorry, they are running a second case ‑ and they have got directions and other matters that they have to deal with in relation to the other matter for Friday.  So I do not propose to make their position any more difficult than it currently is.

MR REYNOLDS:   Your Honour, just on that, I will stick with the current timetable.

HER HONOUR:   I am pleased to hear that you are able to do that, Mr Reynolds.  All right.  The parties will, of course, let me know if there is any problem with the maintenance of that timetable and the matter will then be back before me on Friday, at 2.15.  Yes, Mr Solicitor.

MR THOMPSON:   Your Honour, I am instructed to ask for costs of this application.

HER HONOUR:   What do you say to the application for costs, Mr Reynolds?

MR REYNOLDS:   We would ask that costs be reserved.  We would want to put various arguments on that.  Clearly, there is a public interest component to this litigation, and I would want to be heard on that in due course after submissions.

HER HONOUR:   On what basis do you seek costs now, Mr Solicitor?

MR THOMPSON:   Well, your Honour, this is an application which was, in our submission, improperly brought and reserving the costs will not change that.

HER HONOUR:   Those are the facts, Mr Reynolds.

MR REYNOLDS:   With respect, that is an open characterisation to suggest that this is an improper application at all, and I would ask my friend to withdraw that before he presses it further.

HER HONOUR:   I am sure Mr Solicitor means that there was not a proper basis for it.  I am sure he does not – it is not meant as a slight.  Could you just deal with the submission, Mr Reynolds?

MR REYNOLDS:   With all due respect, to suggest that the submissions we have made written and orally provide no proper basis for the issue of the subpoena is baseless.

HER HONOUR:   I accept the defendants’ submissions there was no proper basis for this application.  The plaintiffs are ordered to pay the defendants’ costs of the application.  The Court will now adjourn.

AT 12.37 PM THE MATTER WAS ADJOURNED