Wotton v State of Queensland

[2011] HCATrans 136

[2011] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S314 of 2010

B e t w e e n -

LEX PATRICK WOTTON

Plaintiff

and

STATE OF QUEENSLAND

First Defendant

CENTRAL AND NORTHERN QUEENSLAND REGIONAL PAROLE BOARD

Second Defendant

Directions hearing

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE AND BRISBANE

ON MONDAY, 16 MAY 2011, AT 11.32 AM

Copyright in the High Court of Australia

MS K.L. WALKER:   If the Court pleases, I appear for the plaintiff.  (instructed by Levitt Robinson Solicitors)

MR G.J.D. DEL VILLAR:   May it please the Court, I appear for the first defendant.  (instructed by Crown Solicitor (Qld))

MR A.D. SCOTT:   If the Court pleases, I appear on behalf of the second defendant.  (instructed by Central and Northern Queensland Regional Parole Board)

HER HONOUR:   Thank you.  I have received the special case.  That is in a satisfactory state and I am minded to refer it into the Full Court for hearing.  I note that today further particulars of the defence of the first defendant have been filed.  Is there anything further outstanding in terms of the pleadings?

MS WALKER:   Not from the plaintiff’s point of view, your Honour, but perhaps I will allow the defendants to address that.

HER HONOUR:   Thank you.

MR DEL VILLAR:   Not from the position of the State of Queensland, your Honour.  There is no further.

HER HONOUR:   Yes.

MR SCOTT:   From the second defendant’s perspective, further particulars had been served on the plaintiff’s side, although it had been envisaged to include those further particulars in the special case book rather than separately filing them, but if the Court would prefer, they can be filed as well.

HER HONOUR:   Just so I understand, Mr Scott, there are further particulars that have been supplied by the plaintiff?

MR SCOTT:   Sorry, there are further ‑ ‑ ‑

HER HONOUR:   Further particulars that you have supplied in answer to requisitions from the plaintiff, is that right?

MR SCOTT:   That is so, your Honour.

HER HONOUR:   You are for the second defendant, the Regional Parole Board?

MR SCOTT:   That is so, your Honour.

HER HONOUR:   Yes.  The convenient course would be to file those as the first defendant has done in relation to the further particulars that it has supplied of its defence.

MR SCOTT:   We will ensure that is attended to, your Honour.

HER HONOUR:   Yes, all right.  Can I turn to the question of a timetable for submissions.  The Court at this stage would be in a position to hear this matter in the first week of the August sittings and I had in mind fixing a timetable working towards that as the hearing date.  The proposal was that, Ms Walker, your client file and serve written submissions by 4 July 2011 and that the defendants file and serve their submissions by 18 July 2011 with the plaintiff to have to 22 July 2011 to file submissions in reply, any intervener to file and serve submissions within five days of the filing of submissions by the party who will be supported by the intervener and the plaintiff to serve and file written submissions in response to any intervener supporting the defendants’ position within seven days of the filing of those interveners’ submissions.  Does any of that occasion difficulty, firstly, Ms Walker?

MS WALKER:   Yes and no, your Honour, but I think that the broad answer is no.  It is a timetable that the plaintiff anticipates that can be met.  I do understand that your Honour had initially proposed a more truncated timetable and the plaintiff certainly had difficulty with that, but no, this timetable, your Honour, we do anticipate being able to comply with that.

HER HONOUR:   Yes.  Mr del Villar, any difficulties?

MR DEL VILLAR:   I regret to say, your Honour, that we would have some difficulties with the date of 18 July 2011 for our submissions.

HER HONOUR:   What is the problem?

MR DEL VILLAR:   We seem to be in a number of other cases where submissions are due on that precise date, your Honour.

HER HONOUR:   I see.

MR DEL VILLAR:   The Williams Case, the submissions of the interveners are due on 18 July 2011 and we are in the Williams Case.

HER HONOUR:   All right.  I have managed to come into Court without a calendar, Mr del Villar.  I think I am going to be assisted and I might just see if we can accommodate you without causing loss of the proposed hearing date.

MR DEL VILLAR:   Does your Honour have a calendar?

HER HONOUR:   Yes, I do now.  Would it address your problems if I were to extend the date for the submissions in your case to Friday, 22 July 2011?

MR DEL VILLAR:   If your Honour will just give me a minute, I will consult the calendar I have been provided with.

HER HONOUR:   Yes.

MR DEL VILLAR:   That would be of some assistance to us, your Honour.

HER HONOUR:   Yes.  I am just having a look at the implications of that extension keeping us within some bounds.  There are practical difficulties with it, Mr del Villar, when one takes into account the need to accommodate a reply to interveners as well as the reply to your submissions. 

MS WALKER:   Your Honour, I wonder if I might perhaps assist in that respect in terms of maintaining ‑ ‑ ‑

HER HONOUR:   I would be pleased if you could.

MS WALKER:   I think it would be right that the plaintiff would be content to have but one reply submission filed so long as it was after both the defendants and any interveners on the side of the defendants.  That might mean that we could, your Honour, dispense with the final order which would give the plaintiff seven days after the filing of interveners, but it would be necessary, on the basis of the 22 July date that your Honour has suggested for the defendants, to then perhaps make the plaintiff’s reply due on 29 July 2011 and any interveners in support of the defendants to file and serve on 27 July 2011, which does truncate the normal timetable for interveners. 

Can I indicate to your Honour that we are not anticipating a large number of interveners.  It is certainly possible and it cannot be ruled out, but as far as we are aware other States do not have legislation in quite the same terms and effect as that that is in issue here.  So from the plaintiff’s point of view, because we do not anticipate a large number of interveners, we would be content to have that slightly unusual arrangement in relation to the reply.

HER HONOUR:   Yes.  I was mindful that the preliminary indication from those on whom 78B notices had been served suggested that it was not likely that there would be many interveners.  I do propose to require that the Attorneys are advised that the matter has been referred into the Full Court since the service of the 78B notices at an earlier stage may not have concentrated attention in the way that the circumstance of the matters being referred in will.  Nonetheless, I am grateful to you, Ms Walker, for that.

MS WALKER:   Perhaps, your Honour, while I have your gratitude, could I seek a little more leeway at the front end.  Given that the timetable is being shifted to extend the time for the defendants, I wonder if 4 July 2011 could be shifted to 6 July 2011 for the initial submissions of the plaintiff.

HER HONOUR:   That sounds reasonable.

MS WALKER:   Thank you, your Honour.  I should probably let my learned friends provide any comments they might have on the proposed alternatives.

HER HONOUR:   Yes.  Is there anything further, Mr del Villar?

MR DEL VILLAR:   Your Honour, I just wanted to make sure that I understood that we had the correct dates.  So it would be 6 July 2011 for the plaintiff’s submissions, 22 July 2011 for the defendants’ submissions.

HER HONOUR:   Mr del Villar, I am still debating this.  My difficulty is in giving sufficient time to make provision for interveners and a reply.  Ms Walker is endeavouring to assist you by a willingness to shorten the time available to the plaintiff in that respect, but we still need to be realistic about a timetable contemplating a hearing in the first week of August.

MR DEL VILLAR:   Yes, your Honour.  Your Honour, can I indicate that my learned friend, Ms Walker’s, proposal would suit us, so it really would just be a question of whether or not there would be sufficient time for the interveners and for the reply.

HER HONOUR:   Yes.  Mr Scott, is there anything you wish to put?

MR SCOTT:   The only thing I wish to say is, firstly, the timetable the second defendant would be agreeable to and, secondly, in terms of the hearing dates, I should say that my learned leader, Mr Horneman‑Wren, and I presently have a commitment in the first week of August, although there is a prospect that may resolve itself in the short term.  I am unable to confirm our availability for that first week as yet, unfortunately.

HER HONOUR:   Well, let us trust that your other difficulty resolves itself, Mr Scott.

MR SCOTT:   Certainly, your Honour.

HER HONOUR:   Very well.  Mr del Villar, I think in fairness to the position of interveners, I really have to have your submissions filed by the close of business on the 21st, which would still only allow three days, a considerable foreshortening, for interveners if we are to keep to a timetable.  I appreciate it puts strains on you, Mr del Villar, but I really do not see an alternative.

MR DEL VILLAR:   I understand that, your Honour.

HER HONOUR:   In that case, the orders that I would propose – this is just so that we can all be clear about this and you can let me know if there are difficulties – would be that the plaintiff file and serve submissions by close of business on 6 July 2011.  The defendants have until close of business on Thursday, 21 July 2011.  Interveners are to file and serve submissions within four days of the filing of submissions by the party supporting the intervener and the plaintiff have until close of business on Friday, 29 July 2011 to file and serve submissions in reply, including in response to any interveners supporting the defendants’ position.  Is that feasible?  Ms Walker, that is consistent with your indication, is it, in terms of your capacity to respond?

MS WALKER:   Yes, it is, thank you, your Honour.

HER HONOUR:   Yes, very well.  I will not make a formal direction, but, Ms Walker, you will take on board my indication with respect to the 78B notices and further advice to the Attorneys?

MS WALKER:   Yes, certainly, your Honour.  We will attend to that.

HER HONOUR:   Yes.  Are there any further matters then?  Just one moment, Ms Walker, I think a matter has been drawn to my attention.  Yes, thank you.  Very well, if there are no further matters, I will make the following orders:

1.The special case agreed to and signed by the solicitors for the parties, and the questions of law set out therein, be referred for argument before the Full Court.

2.A special case book be filed together with sufficient copies for each of the Justices of the Full Court within 21 days of this order, which book shall contain the initiating process, the pleadings, this order, the special case and annexures thereto, the reference to the pleadings to include the further particulars of the defence filed by the first defendant and the further particulars of the defence of the second defendant.  The latter is to be filed within seven days of today.

3.The costs of the special case to be costs in the cause.

4.The plaintiff is to file and serve written submissions by 6 July 2011.

5.The defendants are to file and serve written submissions by 21 July 2011.

6.Any intervener is to file and serve written submissions within four days of the filing of submissions by the party who will be supported by the intervener.

7.The plaintiff is to file and serve written submissions in reply to the defendants’ submissions and in response to any submissions of an intervener supporting the defendants’ position by 29 July 2011.

I think those complete the directions unless there is some further matter.  Ms Walker?

MS WALKER:   Nothing further on the part of the plaintiff, your Honour.

HER HONOUR:   Mr Scott, am I right in thinking that your further particulars of defence can be filed within seven days?

MR SCOTT:   It can be, your Honour, and we hope that it can be filed before then.

HER HONOUR:   Yes, thank you, Mr Scott.  As the order makes clear, those are to form part of the material filed in conformity with order 2.  Yes, very well, I will adjourn.

AT 11.50 AM THE MATTER WAS ADJOURNED