Veta Ltd & Anor v Evans & Ors

[2003] HCATrans 738

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S245 of 2001

B e t w e e n -

VETA LIMITED (A COMPANY INCORPORATED IN HONG KONG)

First Plaintiff

CATHAY PACIFIC AIRWAYS LIMITED

Second Plaintiff

and

MARK ANDREW EVANS

First Defendant

DAVID MICHAEL HONNER

Second Defendant

BRETT KENNETH ROSEWALL

Third Defendant

DAVID BRUCE SPRONG

Fourth Defendant

CHARLES BRUCE BURTON

Fifth Defendant

Summonses

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 16 JUNE 2003, AT 9.36 AM

(Continued from 23/5/03)

Copyright in the High Court of Australia

__________________

MR R.J. ELLICOTT, QC:   I appear for the plaintiffs in the action and the applicants in the summons.  (instructed by Freehills)

MR R.C. KENZIE, QC:   Your Honour, I appear with MR S.E.J. PRINCE for the defendants in the action, and we also have a summons.  (instructed by Abbott Tout)

MR J.G. RENWICK:   I appear for the Attorney‑General for New South Wales, who intervenes.  (instructed by Crown Solicitor for the State of New South Wales)

HIS HONOUR:   Yes, Mr Ellicott.

MR ELLICOTT:   Your Honour, the parties have, as we have said, endeavoured to get together and we have gone quite a long distance towards getting agreement on those matters of fact.  There are still some issues – they are not really issues between us so much, they are more a matter of clarifying facts and we would hope that within the next week, or certainly during the week after that, we would be reaching agreement as to the form the case would take insofar as facts were concerned.  Your Honour had in mind a hearing and we wondered if 2 July was convenient to your Honour.  Your Honour mentioned the week of 30 June.

HIS HONOUR:   Yes, I will make myself available.  It is vacation.

MR ELLICOTT:   We understand your Honour is giving up a little bit of time there.  The other issue that is hanging around is if your Honour was going to state a question about whether the Industrial Relations Commission is a court, if that issue came up, then that may need another section 78B notice.  Without your Honour making any comment about it, perhaps we could send out a notice to the State and Territory ‑ ‑ ‑

HIS HONOUR:   I would like to dispose of the matter as quickly as possible.  I do not want to spend a great deal of time hearing an application for either remitter or a stated case.  In the past I have heard these remitter applications, when they have been opposed, on paper.  I will not do it in this particular case but I would want detailed written submissions and I would limit each counsel to an hour’s oral argument on the matter, Mr Ellicott.

MR ELLICOTT:   If your Honour pleases.

HIS HONOUR:   I would want some argument about the question of whether or not the Industrial Commission is a court, as well, because it may well be a decisive consideration as to whether a stated case or, if I do not, whether it should go to the Federal Court or to the Industrial Commission.

MR ELLICOTT:   Another matter that is there, already, and that is whether or not a question as to whether a law is for the “peace, order, and good government” of a State is a matter arising under the Constitution. That has never, I think, finally been determined by the High Court.

HIS HONOUR:   That is a 106 and 107 question, is it not?

MR ELLICOTT:   Yes, that is right.  That is there as well, but it is already there, but perhaps as a matter of caution we should – particularly having in mind what your Honour has said – send out a section 78B notice that would cover the question of the status of the Industrial Commission.

HIS HONOUR:   Yes.  Now, if the matter is listed for hearing on 2 July, then I think I should give some directions about written submissions.  You are the moving party, Mr Ellicott.

MR ELLICOTT:   Could I suggest that we put ours on by today week, your Honour?

HIS HONOUR:   I was going to give you a bit longer than that.

MR ELLICOTT:   I would like to take a little longer, simply because I will not be here until towards the end of the week, your Honour.

HIS HONOUR:   Yes.

MR ELLICOTT:   We are both going to be working on matters that we are already familiar with, so it is not as if we need the others.

HIS HONOUR:   Yes.  What about 4.00 pm on 25 June?

MR ELLICOTT:   Yes, your Honour.

HIS HONOUR:   That is a week before the actual hearing date.

MR ELLICOTT:   Yes, that is the Wednesday.  If your Honour pleases.

HIS HONOUR:   Yes.  Mr Kenzie, you could file yours by, let us say, 1.00 pm on Tuesday, 1 July.

MR KENZIE:   Yes, your Honour.

HIS HONOUR:   Yes.

MR ELLICOTT:   Now, the New South Wales Attorney‑General seems to be taking a very keen interest in this case, your Honour.

HIS HONOUR:   Well, I had not noticed that.  Yes, Dr Renwick.

MR RENWICK: We do have an interest in it, particularly this question of whether the Industrial Relations Commission is a court for the purposes of section 44, and without wanting to cavil with your Honour’s proposed directions, we were rather hoping that we could see both sets of submissions before we put in our own, particularly if this issue of section 106 of the Constitution is to be agitated in any way as well.

HIS HONOUR:   Well, you come here as a mendicant, do you not?  You have no right for leave in this particular case at this stage.  You will have Mr Ellicott’s submissions by the 25^th.

MR RENWICK:   Yes.

HIS HONOUR:   And Sir Robert Jackson, the United States lawyer, said when he was a Solicitor‑General when he was told that his side had not prepared its case and was waiting for the other side, he said, “What, haven’t we got a case?”  So you can prepare your case in the meantime.

MR RENWICK:   And you want to see our submissions at the same time as the defendant’s, your Honour, the day before?

HIS HONOUR:   Yes.

MR RENWICK:   Yes.

HIS HONOUR:   Yes, I think 1.00 pm on 1 July as well in your particular case.

MR RENWICK:   Does your Honour propose to give a direction as to the time when the section 78B notices need to be delivered?  It may be other Attorneys want to be involved at this stage, I do not know.

MR ELLICOTT:   We will send it out by ‑ ‑ ‑

HIS HONOUR:   Yes.  I would be surprised if they would want to be involved at this stage.

MR RENWICK:   Yes, your Honour.

HIS HONOUR:   How long before you can get those notices out, Mr Ellicott?  Seven days?

MR ELLICOTT:   Yes, your Honour.

HIS HONOUR:   So Monday, the 23^rd?

MR ELLICOTT:   If your Honour pleases.

HIS HONOUR:   Now, is there anything further?

MR KENZIE:   Your Honour, as to the draft stated case itself, we agree with what Mr Ellicott has had to say about the progress.  It is always conceivable that some matter might arise.  It may be prudent to make some provision for alerting the Court to any matters that have not been able to be agreed – for example, some separate statement by the parties – that would identify that so that the Court would then have all the material.

HIS HONOUR:   Yes.  Well, I take it for granted that the written submissions of Mr Ellicott to be filed by the 25^th will have annexed or will refer to the draft stated case.

MR KENZIE:   Yes, your Honour.  If there are any outstanding matters, it would be better that they be identified, your Honour, just to crystallise the debate.

HIS HONOUR:   Yes.

MR KENZIE:   We hope there will not be, but it seems like a good idea, your Honour.

HIS HONOUR:   Yes, thank you.  Very well.  I will adjourn the further hearing of this matter until 10.00 am on Wednesday, 2 July 2003.  I direct that the applicant serve 78B notices on the Attorneys‑General for the Commonwealth, State and Territories by 4.00 pm on 23 June.  I direct that the applicant file its written submissions by 4.00 pm on 25 June 2003, those written submissions to have annexed to them a draft of the stated case proposed by the applicant.  I direct that the respondents file their written submissions by 1.00 pm on 1 July and those written submissions refer to any matters in the stated case with which they disagree and to include any matters which they submit should be added to the stated case.  I direct the Attorney‑General of the State of New South Wales to file his written submissions by 1.00 pm on 1 July 2003.  I certify for the attendance of counsel.  I reserve the question of costs.  The matter is therefore adjourned until 10.00 am on 2 July.

AT 9.47 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 2 JULY 2003