Unions NSW & Ors v State of New South Wales

[2018] HCATrans 220

[2018] HCATrans 220

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S204 of 2018

B e t w e e n -

UNIONS NSW

First Plaintiff

NEW SOUTH WALES NURSES AND MIDWIVES’ ASSOCIATION

Second Plaintiff

ELECTRICAL TRADES UNION OF AUSTRALIA, NEW SOUTH WALES BRANCH

Third Plaintiff

AUSTRALIAN EDUCATION UNION

Fourth Plaintiff

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

Fifth Plaintiff

HEALTH SERVICES UNION NSW

Sixth Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 OCTOBER 2018, AT 9.00 AM

Copyright in the High Court of Australia

____________________

MR N.J. OWENS, SC:   If the Court pleases, I appear with my learned friend, MS C.G. WINNETT, for the plaintiffs.  (instructed by Holding Redlich Lawyers)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR B.K. LIM, for the defendant.  (instructed by Crown Solicitor’s Office (NSW))

MR OWENS:   Your Honour, I hope will have seen that in accordance with the directions made last time, the parties have managed to both agree a special case and file it on time.

HER HONOUR:   Yes, indeed.

MR OWENS:   So unless your Honour had any questions about it, it would be appropriate in my submission for your Honour to make an order referring the hearing of the special case to the Full Court on the dates in December that had previously been ‑ ‑ ‑

HER HONOUR:   Thank you, Mr Owens.  I have no questions.  I will order that the special case be referred to the Full Court and I will indicate to the parties that the parties should proceed on the footing that the matter will come on for hearing before the Full Court on Wednesday, 5 December, with provision for it to run into a second day.

MR OWENS:   I see.  Thank you, your Honour.  Could I just raise one matter of a logistical nature?

HER HONOUR:   Indeed.

MR OWENS:   It relates to the relatively new process of a joint book of authorities.

HER HONOUR:   Yes.

MR OWENS:   Now, normally, as I understand it, the provision is that that book must go on 14 days after the appellant – or in this case, the plaintiff’s reply goes on.  Because of the abridged timetable here the Registry has communicated to us that that joint book would need to be filed within two days of our reply.  I have not been personally involved in the preparation of one of those, but I am told it is quite an exercise, in particular in relation to the certification of the correctness and the preparation of the electronic version and so on.

HER HONOUR:   Yes.

MR OWENS:   I was going to raise a couple of possibilities.  It may be that your Honour tells me just do your best, in which case we will.  At the very least I would ask your Honour if we might be dispensed from the requirement to provide the certificate of correctness because that process, I am told, involves the senior lawyer for each party and intervener presenting the case physically reviewing an original copy and certifying that it is correct.  I am just told that after our reply submissions are done, preparing the document, getting it finalised and then getting a whole range of people and a whole range of States to certify that might be difficult.

HER HONOUR:   Yes.

MR OWENS:   Then, perhaps more ambitiously, I was going to ask your Honour whether it might be possible for the joint book to only include the authorities of the parties and not the interveners.

HER HONOUR:   Yes.  At this stage, am I right, Mr Owens, in understanding South Australia is the only intervener?

MR OWENS:   Yes.  There is some – if I could – there is a rustling in the bushes, if you like, that suggests there might be a few more coming.

HER HONOUR:   I see.

MR OWENS:   But South Australia is the only one that has broken cover so far.

HER HONOUR:   Thank you, Mr Owens.  Yes, Mr Solicitor, do you have anything to add to this?

MR SEXTON:   I do not, your Honour.  I suppose one would expect that the authorities relied on by the interveners probably would not add significantly to those of the parties.

HER HONOUR:   Yes, I think that is a fair assumption to make.  Given the constrained timetable I am inclined to accede to Mr Owens’ submission that the requirement for certification of the correctness of the joint book be dispensed with and that the joint book only include the authorities relied on by the parties.  Does that then resolve the logistical difficulties, Mr Owens?

MR OWENS:   Subject to one further request, the answer is yes.

HER HONOUR:   Yes.

MR OWENS:   That would be if – and I am sorry that I have not raised this with my friend – if it would be possible when my learned friend files his submissions if he could also provide us with the information necessary for the index insofar as it relates to the defendant’s case – in a Word document ‑ ‑ ‑

HER HONOUR:   Yes.  Mr Solicitor, is there any difficulty with that?

MR SEXTON:   I imagine not, your Honour.

HER HONOUR:   Yes.  I do not think that need be the subject of any order by me.

MR OWENS:   No.

HER HONOUR:   I will make the following orders:  I refer the special case filed on 19 October 2018 to the Full Court for hearing.  In light of the constrained timetable, the requirement for the filing of a certificate of correctness is dispensed with and the joint book of authorities need only include the authorities relied on by the parties.

MR OWENS:   Thank you, your Honour.

HER HONOUR:   Adjourn the Court.

AT 9.05 AM THE MATTER WAS ADJOURNED