Wainohu v The State of New South Wales

[2010] HCATrans 245

[2010] HCATrans 245

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

Summons for directions

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 15 SEPTEMBER 2010, AT 9.37 AM

Copyright in the High Court of Australia

MR M.A. ROBINSON:   If the Court pleases, I appear with my learned friend, MR W. BAFFSKY, for the plaintiff.  (instructed by Hardinlaw Solicitors)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If your Honour pleases, I appear with my learned friend, MR J.G. RENWICK, for the defendant.  (instructed by Crown Solicitor’s Office)

HIS HONOUR:   As I understand it, the parties agree that the matter should not be remitted to another court.  That is so, is it not?  I agree too.  The parties are also willing to work towards the preparation of a special case.  That is so, is it not?

MR ROBINSON:   Yes.  Our preference, your Honour, is to just have the matter listed or a question reserved, but certainly a special case would be not inappropriate.

HIS HONOUR:   Yes, I mean there seems to be a lot of material admitted on the pleadings and not very much else that needs to be in the special case book.  The division is this.  You want the matter listed for hearing at once – the plaintiff does.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   New South Wales, on the other hand, wants the proceedings which are presently in the Supreme Court to run their course and New South Wales contends that there is no prejudice to the plaintiff in that because the mere making of a declaration against the defendant in the New South Wales proceedings has no immediate impact on the plaintiff.  That will only come when an interim control order is applied for.  Now, you, Mr Robinson, make the point that an interim control order can be applied for ex parte and although ‑ ‑ ‑

MR ROBINSON:   In an instant.

HIS HONOUR:   Yes.  I mean, you did not say this, but in theory it could be made by Justice McClellan the minute he has made the declaration in the current proceedings, subject to presumably some evidence being provided to him.  Mr Solicitor, do you accept first, I suppose, that Mr Robinson is right in saying that an interim control order could be sought ex parte against the present plaintiff once the declaration has been made?

MR SEXTON:   I think that is right in theory, your Honour.  There is just one other complication which is the outstanding judgment in Totani which we think – that may affect the course of these proceedings which is the reason we would say that setting a date today is probably not appropriate, but of course I cannot speculate on when the case might come down.  It has been reserved for some time now.

HIS HONOUR:   Well, what you say is a valid point.  My present thinking is that the matter should not be listed until (a) the special case has been agreed and (b) the State of South Australia v Totani is actually decided.  It is obviously not clear when that will be.  The reason why I tentatively think that is that what is said in State of South Australia v Totani would have some bearing on the preparation of this case.  In theory, it might even cause this case to go away although that is probably a pretty remote possibility.  If an interim control order is applied for, it will be applied for by the New South Wales Commissioner of Police.  Are you in a position to give an undertaking on behalf of the Commissioner not to seek an interim control order without prior notice to the present plaintiff?

MR SEXTON:   I would have to get some instructions about that, your Honour.

HIS HONOUR:   They take a long ‑ ‑ ‑

MR SEXTON:   I think it could be done pretty much now, your Honour.

HIS HONOUR:   But before we put anyone to any trouble, Mr Robinson, would that meet the danger you apprehend – that you have set out in your most recent set of written submissions?

MR ROBINSON:   The danger ‑ ‑ ‑

HIS HONOUR:   Your point is that your client could wake up one morning and someone could serve on him an interim control order.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   And although an application could be made with some expedition to get it set aside, it is not always easy to get things heard expeditiously and there will be a period of time when he is exposed to the consequences of that order.  But if the Commissioner can give an undertaking only to seek the order after notice to you, then apart from any substantive points your client would want to raise against that order, he can also raise the fact that the matter is in this Court proceeding, if not with lightning speed, at least with deliberation towards a hearing in front of seven Justices.

MR ROBINSON:   Two things, your Honour.  Firstly, yes, it does ameliorate that concern.  The only concern that would be left is that, what we say is a patently unfair and unlawful process is continuing up to that point.  Secondly, your Honour, it would be preferable if there was at least a hearing date allocated by this Court so that we could then do what we did on the first day before his Honour Justice McClellan and that is say, “Things are happening in the High Court, we now have a date” and he may well stop the proceedings because he did say, on the day that we handed to him the writ of summons and statement of claim, on 23 July, on the first day, the first return day of the declaration proceedings before him as eligible judge, he said “Well, I may not continue.  What is the point?  If the legislation is to be set aside, why would we do all this work without good reason?”  He accepted that there is no urgency in this.  The legislation was proclaimed in 2009 and these proceedings were not commenced until July this year, so there is certainly no urgency.

The short of it is, your Honour, if there is a date, his Honour Justice McClellan might simply stay the proceedings.  That would certainly be our application to him in a few days time at the end of September when we are back before him for a further mention.

HIS HONOUR:   Are those instructions being sought?

MR SEXTON:   They are, your Honour.  Can I just say in relation to what my learned friend has just said that it does not seem to us that setting a date is really going to change anything of the circumstances that he refers to.  Justice McClellan may, for example, once the proceedings are under way in this Court and the special case is being prepared he might, in those circumstances, make a decision not to proceed.  I have no idea what he might do, of course, but I just say that once the proceedings are started that would be a factor of course that he may take into account.  It is just simply that until Totani is handed down it seems to us that it is difficult to really say what is going to happen in the course of these proceedings.

HIS HONOUR:   Yes. 

MR SEXTON:   Obviously whatever else happens this morning, presumably the special case will get under way.

HIS HONOUR:   Yes.  How long do you think it will take to prepare it and obtain agreement on it and file it and serve it?

MR ROBINSON:   For our part, your Honour, the facts are in the writ of summons and in the defence - all the facts that are necessary and I have identified five documents that I have in my hand that we consider that the

Court should have before it.  In short, your Honour, we are ready.  Factually, we are ready.  We accept the defence.  The defence has accepted the writ of summons, statement of claim facts.  That is all that is necessary to found the Court’s constitutional jurisdiction in this kind of matter.

We could even tender those five documents by consent as a tender bundle rather than an affidavit and the matter then is ready to proceed.  I would expect it would not be more than one day’s argument, your Honour, given the submissions in the previous proceedings.  It could be an addendum to those proceedings, your Honour.

HIS HONOUR:   Yes, you have put it very attractively but I can assure you when I walk out of this room and move into the cold atmosphere that exists outside this room, it will not look so easy.  I do think that we will have to wait until Totani is decided.  Your cause will be assisted if the agreement about the special case can be achieved easily and filed and everything got ready.  I mean, the matter is in the Court.

MR ROBINSON:   It would be better if his Honour agreed to a stay below so that we were not running two things at the same time or at least preparing for two things at the same time.

HIS HONOUR:   Yes, I think he has to be allowed to be the master of his own procedural destiny.

MR ROBINSON:   Indeed.

HIS HONOUR:   Is there anything more to be said other than your undertaking, if you can get it, Mr Solicitor?

MR SEXTON:   No, your Honour.

HIS HONOUR:   Should I just leave the bench until we get some news or ‑ ‑ ‑

MR SEXTON:   I do not think we will be terribly long.  Perhaps if we could just have five minutes.

HIS HONOUR:   Very well, I will just wait until I am told to come back unless there is an extremely long delay in which case I will come back unannounced.

AT 9.49 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.04 AM:

HIS HONOUR:   Yes, Mr Solicitor.

MR SEXTON:   Your Honour, the undertaking is that the Commissioner of Police will not seek an interim control order in relation to the plaintiff except on 48 hours’ written notice and that 48 hours is 48 business hours.

HIS HONOUR:   Yes, thank you.

MR SEXTON:   I was just going to say, your Honour, we have had some discussions while your Honour has been off the bench and there are going to be some discussions about the special case and we are trying to find a date to come back in relation in case there has to be some argument about it.  We realise that the Court is going to be in Canberra for the two weeks following this week.  We wondered if Thursday, 7 October would be a possibility for further directions.

HIS HONOUR:   That is satisfactory to you, Mr Robinson?

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   That is fine by the Court.  Mr Robinson mentioned that he thought the hearing would take one day, possibly a little more, do you think?

MR SEXTON:   The final hearing?

HIS HONOUR:   Yes, before the seven Justices.

MR SEXTON:   Yes.  We would assume that there would be a number of ‑ ‑ ‑

HIS HONOUR:   Interveners.

MR SEXTON:   Quite a lot of interventions.

HIS HONOUR:   Yes.

MR SEXTON:   It might be unsafe to therefore list it just for the single day, although hopefully it would not occupy the whole of a second day.

HIS HONOUR:   …..safe.  Now, Mr Robinson, I have made some inquiries.  I am not in a position to fix the matter for hearing, but I think I can say that if a special case is agreed in reasonable time and if State of South Australia v Totani is handed down before December, these proceedings will be heard in December, that is to say, there is space available for them to be heard in December.

In those circumstances, I think the only orders I need to make are:

1.Adjourn the hearing of the summons until 7 October 2010 at 9.30 in Sydney.

2.Grant leave to the parties to apply on such notice as seems appropriate, or without notice.

MR ROBINSON:   If the Court pleases.

HIS HONOUR:   Anything else that needs to be done?

MR ROBINSON:   No, your Honour, not from our side – well, your Honour, there is one thing.  The undertaking that my learned friend gave in relation to no interim control orders would be sought, I take it that would be in relation to any member of my client’s organisation.  There are 46 of them - about.

HIS HONOUR:   I took it as being an undertaking from Mr Wainohu, the plaintiff.  How did you intend it, Mr Solicitor?

MR SEXTON:   I did only refer to the plaintiff, which is the only matter that is, in a sense, before the Court, your Honour.

HIS HONOUR:   This is quite an important matter, obviously.  When you actually obtained the instructions, were you talking about this plaintiff or 46 people in like case?

MR SEXTON:   I was only intending to refer to this plaintiff, your Honour, in the sense that it is the person who is represented by my learned friend, but I can extend it to all of them.

HIS HONOUR:   Very well.  Those orders are made on the undertaking which the Solicitor announced a short time ago in relation to – how shall we describe it – the present plaintiff and who else?

MR ROBINSON:   The other members of the organisation in the Supreme Court proceedings.

HIS HONOUR:   That seems to be described as “The Hells Angels Motorcycle Club in the State of New South Wales”.  Is that ‑ ‑ ‑

MR ROBINSON:   Also known as the Hells Angels, yes, your Honour.

HIS HONOUR:   That is a satisfactory description.

MR ROBINSON:   Yes, your Honour.

HIS HONOUR:   Very well.  The undertaking will be in relation to those people.  Thank you very much, gentlemen, for your co‑operation today.  Court will now adjourn.

AT 10.09 AM THE MATTER WAS ADJOURNED