Vella & Ors v Commissioner of Police (NSW) & Anor

[2019] HCATrans 114

[2019] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S30 of 2019

B e t w e e n -

DAMIEN CHARLES VELLA

First Plaintiff

JOHNNY LEE VELLA

Second Plaintiff

MICHAEL FETUI

Third Plaintiff

and

COMMISSIONER OF POLICE (NSW)

First Defendant

STATE OF NEW SOUTH WALES

Second Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON MONDAY, 3 JUNE 2019, AT 9.41 AM

Copyright in the High Court of Australia

____________________

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MR T.O. PRINCE, for the plaintiffs.  (instructed by LawyersCorp Pty Ltd and Birchgrove Legal)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS E.S. JONES, for both defendants.  (instructed by Crown Solicitor’s Office (NSW))

HIS HONOUR:   Mr Kirk, I am happy with the terms of the special case and with the orders that are proposed, with one minor exception in relation to paragraph 4.

MR KIRK:   Yes, your Honour.

HIS HONOUR:   Can I just confirm that the parties are agreed that we will complete the case in a day?

MR KIRK:   No, we have just had a discussion about that, your Honour.  If it were just Mr Sexton and I we could certainly complete it within a day.  A 78B notice has obviously been issued.  Victoria has intervened, we understand.  We have had communication with the Commonwealth and South Australia.  There are two noes, ACT and the Northern Territory, and we are yet to hear from WA, Queensland and Tasmania.  So, given there is at least one, probably three, and possibly more interventions, Mr Sexton and I both think that there is a chance it will slip into a second day and it would probably be wise to take that into account in setting it down for hearing, with respect.

HIS HONOUR:   Okay.  Well, we will use our best endeavours to set it down for Tuesday, 6 August.  It may be that that cannot be written in stone ‑ ‑ ‑

MR KIRK:   Yes, your Honour.

HIS HONOUR:   ‑ ‑ ‑ but we will use our best endeavours, but that is what we will aim for, Tuesday the 6th, for a day, and hopefully if it looks like going a little longer we will be able to accommodate that.

MR KIRK:   Thank you, your Honour.  You mentioned something about order 4, I think.

HIS HONOUR:   Yes.  In relation to order 4, just in terms of good order and administration, I would suggest that that be amended to read:

On or before 14 June 2019, the plaintiffs file nine hard copies and an electronic copy of a special case book, prepared in a form acceptable to the Registrar, and serve one hard copy and one electronic copy of the special case book on the defendants.

Is that satisfactory?

MR KIRK:   Yes, certainly, your Honour.  Can I just check – sorry to cut across your Honour – that your Honour is working off the version that has just been sent to you?  We had our own computer issues and sent to you unfortunately on Friday the penultimate version.

HIS HONOUR:   Yes, I have got the latest version.

MR KIRK:   Yes.  So order 5, for example, should say “On or before 24 June 2019”.

HIS HONOUR:   That is order 5.

MR KIRK:   Order 5 – sorry, yes, 24 June, whereas the version we sent you last week said “28 June” I think.

HIS HONOUR:   Okay.  No, that is fine.  That is okay.

MR KIRK:   Yes, thank you, your Honour.

HIS HONOUR:   So the special case was ‑ looking at paragraph 3 of the short minutes – the special case was filed on Friday, is that right, the 31st?

MR KIRK:   Yes, your Honour.

HIS HONOUR:   So we will add “31”.  We will alter 4 so that it reads as I read out, and paragraph 12, “The hearing be listed on 6 August 2019”.  So subject to the amendment of order 4 to read as I read out, I will make the order referring the special case for consideration by the Full Court and otherwise make orders in terms of the short minutes of order that I will initial and place with the papers.

There is just one other thing that I do not want to make a fuss about because obviously the defendants are not worried about it, but I notice that the plaintiffs have two sets of solicitors.

MR KIRK:   Yes.

HIS HONOUR:   Now, that is unusual but, as I say, the defendants do not seem to be concerned by it and I will not make a fuss about it.  It is not going to be a problem, I take it?

MR KIRK:   No, your Honour, I think that arose out of a bit of confusion and if your Honour preferred that could certainly be corrected so that there was only one solicitor on the record which is the conventional course.

HIS HONOUR:   It is.

MR KIRK:   I apologise that this situation has arisen.

HIS HONOUR:   Well, as long as it is not going to cause any difficulty, and as long as the defendants are content, I am content.

MR KIRK:   I cannot currently see any difficulty.  There will certainly be the same counsel and we are working on, in effect, one set of instructions so I do not see ‑ ‑ ‑

HIS HONOUR:   The same counsel, one set of instructions, one set of submissions.

MR KIRK:   Yes.

HIS HONOUR:   Okay.  Fine.

MR KIRK:   Yes, absolutely.

HIS HONOUR:   Thanks, Mr Kirk.  Mr Sexton, is there anything you want to say?

MR SEXTON:   I do not think so, your Honour, no.

HIS HONOUR:   Very well.  Thanks, Mr Solicitor.  I will make the orders in terms of the short minutes of order initialled by me and placed with the papers, save that paragraph 4 of the short minutes will read as I proposed earlier.

MR KIRK:   If your Honour pleases.

HIS HONOUR:   Anything further?

MR KIRK:   No, your Honour.

MR SEXTON:   No, your Honour.

HIS HONOUR:   Thanks, Mr Solicitor.  Thanks, Mr Kirk.  Adjourn the Court please.

AT 9.47 AM THE MATTER WAS ADJOURNED