Woolworths (Victoria) Limited v State of Tasmania

[1994] HCATrans 76

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
     Melbourne

No H3 of 1994

In the matter of -

WOOLWORTHS (VICTORIA) LIMITED

and

THE STATE OF TASMANIA

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 20 OCTOBER 1994, AT 9.32 AM

Copyright in the High Court of Australia

MR D.F. JACKSON QC:   If your Honour pleases, I appear with my learned friend MR M.E. O'FARRELL for the applicant plaintiff.

HIS HONOUR:   Yes, Mr Jackson.

MR W.C.R. BALE QC:   May it please your Honour, I appear for the defendant.

HIS HONOUR:   Yes, Mr Bale.  Mr Jackson.

MR JACKSON:   Your Honour, as apparent from the papers this is a case in which the parties have concurred in stating the questions of law in the proceeding in the form of a special case.  Your Honour, I pause to say what your Honour has will say questions reserved, but may I hand your Honour a document which has got some slight amendments from the copy your Honour has.

HIS HONOUR:   And the right heading?

MR JACKSON:   In writing, your Honour.

HIS HONOUR:   And the right heading.

MR JACKSON:   Well, I take it your Honour is referring to the questions reserved part, or - - -

HIS HONOUR:   No, it is just a case stated and questions reserved, is it not, Mr Jackson?

MR JACKSON:   I am sorry, sir?

HIS HONOUR:   It is a case stated and questions reserved for the consideration of the full court.  What I had was questions reserved.  It is - - -

MR JACKSON:   I am sorry, yes.  Well, your Honour, what we would propose is that it be a special case.

HIS HONOUR:   That is under - - -

MR JACKSON:   It is under order 35, your Honour, rule 1.

HIS HONOUR:   Yes, I see.

MR JACKSON:   And then, your Honour, your Honour will see that order 35 rule 1(1) gives the alternative of being before a justice or before the full court.  We would ask your Honour to direct that it be before the full court.  That probably happens under section 18 of the Judiciary Act.

HIS HONOUR:   Yes.  Yes, very well.  Well now, the parties are agreed, are they, on the form of the special case?

MR JACKSON:   Yes, your Honour, and it is in the form that I have just handed to your Honour.  The questions are on page 14.

HIS HONOUR:   Yes.

MR JACKSON: And, your Honour, the issue which arises in the proceedings is whether section 5 sub-section (1) of Tasmania's Shop Trading Hours Act 1984 infringes section 92 of the Constitution. The essence of the contention advanced by Woolworths, and denied of course by Tasmania, is that the statute by restricting the opening hours of those retailers in Tasmania who employ more than 250 people discriminates against those retailers who come from interstate, in order to protect local retailers. That is the contention advanced and denied respectively, and your Honour, it is a case which has some similarities with Castlemaine Tooheys in South Australia.

HIS HONOUR:   Yes, including the excerpts from Hansard.

MR JACKSON:   Yes, your Honour.  Different, legally graphic. 

HIS HONOUR:   Mr Jackson, if this is under order 35 I do not need to sign it.  It is a case which is agreed between the parties and - - -

MR JACKSON:   Yes, I think that is right, your Honour, yes.

HIS HONOUR:   So all that I have to do is to direct that it be returnable before a full court.

MR JACKSON:   Yes, your Honour.  What seems to have occurred in these matters is that the matter comes before a justice (a) to direct that it go to the full court, but also to ensure that the case is in an appropriate form.

HIS HONOUR:   Yes, thank you Mr Jackson.  Mr Bale.

MR BALE:   Yes, your Honour.  We consent to your Honour making that direction, and perhaps the only thing I need say is that whilst there are substantial extracts from the Hansard attached - - -

HIS HONOUR:   That was not said with any note of criticism at all.

MR BALE:   No, all I want to indicate, your Honour, is that there are some issues of relevance that may - that material and some other material that might come to be argued before the full court, but there is no issue as to the correctness of the material that is there.  May it please your Honour.

HIS HONOUR:   Yes, very well.
MR JACKSON:   Your Honour, I accept that.

HIS HONOUR:   Yes.  Well then I direct that the special case be returnable before a full court.   That is all that is needed.  Very well.

AT 9.37 AM THE MATTER WAS ADJOURNED
INDEFINITELY