Wilkie & Ors v The Commonwealth of Australia & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance Mathias Cormann & Anor

[2017] HCATrans 158

[2017] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M105 of 2017

B e t w e e n -

ANDREW DAMIEN WILKIE

First Plaintiff

FELICITY JENNIFER MARLOWE

Second Plaintiff

PFLAG BRISBANE INC

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR FINANCE

Second Defendant

TREASURER

Third Defendant

AUSTRALIAN STATISTICIAN

Fourth Defendant

ELECTORAL COMMISSIONER

Fifth Defendant

Office of the Registry
  Melbourne  No M106 of 2017

B e t w e e n -

AUSTRALIAN MARRIAGE EQUALITY LTD

First Plaintiff

SENATOR JANET RICE

Second Plaintiff

and

MINISTER FOR FINANCE MATHIAS CORMANN

First Defendant

AUSTRALIAN STATISTICIAN

Second Defendant

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY AND MELBOURNE

ON THURSDAY, 17 AUGUST 2017, AT 4.28 PM

Copyright in the High Court of Australia

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   If it please the Court, I appear for the first, second and third defendants in M105 and for the defendants in M106.  I also appear for the Attorney‑General intervening in M106.  (instructed by the Australian Government Solicitor)

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friend, MS K.E. FOLEY, for the plaintiff in M105.  (instructed by the Public Interest Advocacy Centre)

MS K.M. RICHARDSON, SC:   If the Court pleases, I appear with my learned friends, MR G.E.S. NG and MS S. PALANIAPPAN, for the plaintiffs in M106.  (instructed by the Human Rights Law Centre)

HER HONOUR:   Thank you.  I have seen the short minutes of order dealing with M105 in the first place.  I take it these are agreed, Mr Merkel?

MR MERKEL:  Yes, your Honour.

HER HONOUR:   They seem to be in order.  I take it that the further facts that you foreshadowed at the last directions hearing are now contained in the affidavits which are sought to be relied upon as the evidence in the case.

MR MERKEL:   Yes, and there is one agreed fact, your Honour, which has been agreed.

HER HONOUR:   I saw that.

MR MERKEL:   That is the evidence that the matter ‑ ‑ ‑

HER HONOUR:   About the advice?

MR MERKEL:   Yes, your Honour.  I should say, your Honour, there is a combined estimate of two days.  We understand that the Commonwealth is taking a point of standing which raises an additional set of issues and I think the second matter also has a number of issues.  So the expectation of the parties is that it could take up to two days, but we are in the Court’s hands as to the time we can have.

HER HONOUR:   I had appreciated that the Commonwealth was taking an issue in relation to standing in the M106 but also in M105?

MR DONAGHUE:   Yes, your Honour.

HER HONOUR:   I see.

MR MERKEL:   We have not formally been notified but we understand that it would follow on the same grounds, that standing would be part of our case.

HER HONOUR:   Thank you.  The minutes of order are in order as far as I am concerned and I confirm that this matter and hopefully together with M106 will be heard on 5 and 6 September and that will be in Melbourne.

MR DONAGHUE:   If the Court pleases.

MR MERKEL:   If the Court pleases.

HER HONOUR:   Thank you.  Ms Richardson, I am told that the short minutes of order proposed in your matter is not the subject of agreement; is that correct?

MS RICHARDSON:   They are agreed, your Honour.

HER HONOUR:   They are now, good.

MS RICHARDSON:   Yes.

HER HONOUR:   And they are in order as well.  There will be orders in terms of the proposed short minutes of order in each of these matters.  Is there anything else that we need to deal with today?

MR DONAGHUE:   Your Honour, all I should say is that the first of the orders in M106 contemplates the filing of an agreed special case.

HER HONOUR:   Yes.

MR DONAGHUE:   I am reasonably confident that we will agree a special case but we have not agreed one yet.  So, in the event that we do not get there, we would seek to have the matter listed urgently again, but I am reasonably confident.

HER HONOUR:   Yes.  When I read that, I had viewed the pleadings myself and I did not see that there was necessarily going to be a problem.

MR DONAGHUE:   We think it will be fine but there is a little bit still to be done.

HER HONOUR:   Yes, thank you.  The Court will now adjourn.

AT 4.32 PM THE MATTER WAS ADJOURNED