Unions NSW & Ors v State of New South Wales

[2022] HCATrans 142

[2022] HCATrans 142

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S98 of 2022

B e t w e e n -

UNIONS NSW

First Plaintiff

NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION

Second Plaintiff

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS’ ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES

Third Plaintiff

NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION

Fourth Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 26 AUGUST 2022, AT 9.33 AM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   As the Court is sitting remotely, I will announce the appearances for the parties.  MR N.J. OWENS, SC appears with MS C.G. WINNETT for the plaintiffs.  (instructed by Gilbert + Tobin)

MR B.K. LIM appears for the defendant.  (instructed by Crown Solicitor (NSW))

HIS HONOUR:   Ladies and gentlemen, I have read the application for directions filed on 25 July 2022, the writ of summons and statement of claim filed on 29 June 2022, the notice of constitutional matter also filed on 29 June 2022, the plaintiffs’ submissions of 25 July 2022, the defendant’s submissions of 24 August 2022 and the proposed amended statement of claim.  Can I say, immediately, that I am certainly not disposed to remit the matter.  Can I also say that I am very heartened to see that the parties really are not very far apart in terms of the directions they seek this morning.  Can I say, in addition to that, though, that I am concerned that the matter be heard, and heard appropriately, before the election, which is due at the end of March.  In saying that, what I am really saying is that I think it would be most undesirable that the matter – that the Court should be trying to shoehorn the matter into the list, into the pressure cooker of February or – February next year, indeed, December this year.

Given that, barring natural disasters and national emergencies, this is likely to be probably the most important case before the Court towards the end of the year, the Court is disposed to do what it can to have the matter listed in the November sittings.  If that is to be achieved, it may be that there will be compressed directions once the special case is settled, so the parties should be aware of what may well be the need to shift themselves with some little purpose in order to be ready to proceed in the November sittings.  That may mean that there will be the need for some further resources.  That is a matter for the parties, of course.

I am foreshadowing that the Court will not be sympathetic to concerns about the need for time, given that we have all been here before, to a large extent.  So, with those prefatory remarks, Mr Owens, is there anything additional that you want to say?

MR OWENS:   No, thank you.  The position that your Honour has described corresponds with the position of my clients.  With respect, your Honour will have seen in the proposed orders that there is agreement in relation to the first three, and I think the dates that have been agreed there would certainly enable – with, certainly, a lot of hard work, but they would still enable a hearing in November.

There is a small difference between the parties in relation to proposed order 4.  We would urge the earlier date of 16 September for the response to the special case rather than the extra week, particularly so if there is to be preserved the possibility of a November hearing.  So, I think after that – in a sense, perhaps what would be best after order 4 would then be for the matter to be returned for directions, perhaps very shortly after 16 September, and then the next steps could be worked out there, or otherwise we are prepared to be subjected to a timetable for the preparation of the remaining steps in the case at this point.

HIS HONOUR:   Mr Owens, before I turn to Mr Lim, apropos of what you have just said, I have to say, I am reluctant to take the course you suggest in relation to the timetable by basically coming back after 16 September.  I would very much prefer the parties to do their best to reach agreement and file their special case by 23 September.  It is going to become very hard for the Court after that to accommodate a November hearing date.

What I have in mind is that, obviously, I will make provision for liberty to apply and urge the parties that, if they become aware of an insuperable obstacle to agreement on the terms of the special case, no one should feel shy about bringing the matter back in need, but I would rather keep the timetable with the parties aiming to reach agreement on the terms of the special case by 23 September, and then have the parties come back on – I would suggest the 28th in order to, at that stage, look at a timetable for the preparation of submissions, which would accommodate, as well, the position of interveners.  Given what happened last time, one anticipates that there will be several interventions by the Attorneys of the Commonwealth and the States, and I think we need to bear that in mind, and the sooner we find out about that, the better, too.

MR OWENS:   Yes, as your Honour knows – I am so sorry, your Honour, I keep talking over you.

HIS HONOUR:   No, you are right.  Go ahead, Mr Owens.

MR OWENS:   No, I was just going to say – the course your Honour has just outlined was, of course, our clients’ primary position, so I do not – I was trying to be, perhaps, unduly reasonable before, so I am very happy to get our primary position.

HIS HONOUR:   It is always best to be the most reasonable person in the courtroom.  The reason for unreasonableness is simply a concern on the part of – my concern, that I really do not want the Court to be placed in a position where the matter has to be determined in a pressure cooker, given its importance.

MR OWENS:   Yes, thank you.

HIS HONOUR:   So, that having been said, Mr Lim, in relation to Mr Owens’ application for leave to file an amended statement of claim, do you have any problems with that?

MR LIM:   No, your Honour.

HIS HONOUR:   Can I say, apropos of your submissions, am I right in thinking that the Electoral Legislation Amendment Bill 2022, which does provide for expenditure caps, has passed the Legislative Assembly?

MR LIM:   Yes, your Honour.  It has not passed the Legislative Council.

HIS HONOUR:   No, but I think the reasonable and perhaps responsible attitude is to assume that, subject to what might happen here, the new legislation is the legislation under which the election will be fought.

MR LIM:   Your Honour, we are agreed that we should cooperate to facilitate a hearing in November if the legislation passes.  I mean, that is the assumption of the urgency, that that legislation passes, and if the legislation passes there may be additional facts that need to go into the case.  That is the reason for opposing ‑ ‑ ‑ 

HIS HONOUR:   I appreciate, I appreciate your concern and the reservation you make is a sensible one.  I am not being critical, I am just wanting to make sure that we are all on the same page.  Very well, then.  The plaintiffs will have leave to file their amended statement of claim in the form that has been served.  Mr Lim, in relation to the other directions that are sought, is there anything that you want to say to the contrary?

MR LIM:   Your Honour, 23 September was my best estimate of the time that we needed, based on the size of the special case that was served on us the day before yesterday, but I have heard what your Honour has said – I

mean, we will do it as soon as we can, and if your Honour is minded to order it by the 16th, we will obviously comply.

HIS HONOUR:   Very well.  Given the circumstances and given the difficulties that will inevitably arise if the matter cannot be listed in November and the strong desirability of avoiding those difficulties, I propose to make orders in terms of the plaintiffs’ proposed orders that I will initial and place with the papers.  I will add order 7, liberty to apply.  I am not going to put a provision about notice, and I am sure that counsel understand that my concern is that as soon as there is some serious apprehension that the matter might be going off the rails in terms of the special case, it should come back to me as promptly as possible.  I do not think I need to say anything more about that.  All right.  Well, that having been said, are there any other matters that I need to be concerned about this morning?  I suppose I should make an order that the costs of this morning be reserved.

MR OWENS:   Thank you, your Honour.  I think your Honour – your Honour chose 28 September for the next directions hearing, is that right?

HIS HONOUR:   Yes, I did.

MR OWENS:   Then, nothing further from our point of view, your Honour.

HIS HONOUR:   Mr Lim?

MR LIM:   No, thank you, your Honour.

HIS HONOUR:   Very well, then.  I will make an order in terms of the plaintiffs’ proposed orders, which I have initialled, which I have amended by adding orders 7, in relation to liberty to apply, and 8, in relation to costs, reserved, and I place with the papers.  The Court will now adjourn.  Adjourn the Court, please.

AT 9.46 AM THE MATTER WAS ADJOURNED