Wainohu v The State of New South Wales

[2010] HCATrans 260

[2010] HCATrans 260

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S164 of 2010

B e t w e e n -

DEREK JAMES WAINOHU

Plaintiff

and

THE STATE OF NEW SOUTH WALES

Defendant

Directions

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 7 OCTOBER 2010, AT 9.39 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON:   If the Court pleases, I appear for the plaintiff.  (instructed by Hardinlaw Solicitors)

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 J.G. RENWICK, for the defendant.  (instructed by Crown Solicitor’s Office)

HIS HONOUR:   I have seen a copy of the special case.  The only observations I would make about it are these.  I think in the written submissions it should be made plain, and no doubt it will be, what are the primary sections that are invalid - paragraph 14 of that special case asks whether the Act or any provision or part of it is invalid.  It sort of invites a wide‑ranging search.  It may be that if the key provisions are invalid then it is appropriate for the whole thing to be declared invalid.

The other matter is this.  In paragraph 2b there is a saving clause to the effect that the fact that the parties have agreed to the matters set out in the special case is not to be taken as an agreement that all such matters are relevant.  I think it is important that the written submissions make it plain who contends what is relevant for what purpose.  The Solicitor will remember that in the first couple of hours of the hearing in Rowe v Electoral Commissioner there was a certain amount of perturbation about the non‑agreement of the parties on some things.  As long as it is clear at the outset that can be overcome.

Now, is there anything else anyone wants to raise?  The position as to the date is the same as really upon the last occasion.  I think I can say that it is expected that South Australia v Totani will be handed down in November so as to permit a hearing to take place in December, but it is not certain.

MR ROBINSON:   Your Honour, both parties are ready to take a date.

HIS HONOUR:   Yes.

MR ROBINSON:   As for your Honour’s remarks on the special case, for individual sections we have made an attempt to identify them in the original summons and statement of claim, but that ‑ ‑ ‑

HIS HONOUR:   And in the 78B notices, yes.

MR ROBINSON:   Your Honour’s suggestion will be taken up in the submissions and also for the relevance remarks, your Honour, they are well and truly noted and will well and truly be addressed in our submissions, but

there is nothing further except the – I can report, your Honour, that only two Attorneys‑General have indicated that they wish to intervene at this stage.

HIS HONOUR:   Which are they?

MR ROBINSON:   That is Northern Territory and New South Wales, who appears here in a dual role, but the special case has not yet been sent to them, your Honour, so once they see it and once they know that there is a date fixed, there may be more at the Bar table.  The only other order that we would seek today – we accept practice direction No 1 of 2000 is sufficient to deal with submissions of all parties, including the interveners.  We would ask for costs of today and of 15 September to be costs in the cause.

HIS HONOUR:   I cannot point to the rule at the moment, but I think the ordinary position is that those costs are just reserved and then if there is an ultimate victor who gets a costs order, that will cover those costs.  Is that satisfactory from your point of view?

MR ROBINSON:   We are content for that, your Honour.

MR SEXTON:   Could I just mention one thing, your Honour.  I realise that we are in the hands of the Court in relation to dates, but I just had a brief discussion with my learned friend before your Honour came onto the Bench and it seems that those days, 8 and 9 in that – as your Honour will know there are just the six days in December and in that second week there is 8 and 9.  I just mention that in terms of the problems that we have with the other dates.

HIS HONOUR:   Very well.

MR SEXTON:   And on the basis that the case would – although there is only those interventions to date and one of them is not really a problem because, of course, it is a dual capacity that we would anticipate, I think, that there would be further interventions and I think we said on the last occasion that perhaps unsafe to have a single day, but although hopefully not the whole of two days.

HIS HONOUR:   If the matter proceeds in December it will proceed on the basis of two days.

MR SEXTON:   Yes.

HIS HONOUR:   I will bear in mind what you have said about the 8th and 9th and if there is a problem revert.

MR SEXTON:   Thank you, your Honour.

HIS HONOUR:   Very well.  Is there anything else that needs to be done?

MR SEXTON:   No.

HIS HONOUR:   Court adjourns.

AT 9.44 AM THE MATTER WAS ADJOURNED