Wotton v State of Queensland & Anor [2011] HCATrans 70

[2011] HCATrans 70

[2011] HCATrans 070

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

Summons for directions

BELL J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 23 MARCH 2011, AT 9.35 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friend, MS K.L. WALKER, for the plaintiff.  (instructed by Levitt Robinson Solicitors)

MR W. SOFRONOFF, QC, Solicitor‑General for the State of Queensland:   May it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, for the first defendant.  (instructed by Crown Solicitor (Qld))

MR A.A.J. HORNEMAN-WREN, SC:   If it please the Court, I appear with my learned friend, MR A.D. SCOTT, for the second defendant.  (instructed by Central and Northern Queensland Regional Parole Board)

HER HONOUR:   Thank you.  Just before the hearing commenced I received a document, a draft special case.  Mr Merkel, do I understand the parties have had some discussions that have produced that document?

MR MERKEL:   Yes, your Honour.  One of the things that we were anxious to determine before the directions hearing was whether or not it was likely that the parties would agree on a special case process and see the matter as one that is suitable for hearing by the Full Court.  So what we did consensually is we circulated a proposed draft, and we have had contributions from our learned friends, and what we wanted to place before your Honour – and we apologise it was only agreed upon fairly late as a draft to go to your Honour – is the form of special case which we expect will be agreed. 

It is in a draft form, but it has been negotiated.  It has got documents to be annexed and subject to what may arise in the defences, which I will mention to your Honour in a moment, we, I think, are in the position – we certain are on behalf of the plaintiff – of being able to say that we do not expect any problem to emerge on the facts or on agreement on the form of the special case or the questions to be asked in it.  We are sorry if your Honour has not had a chance to read it.

HER HONOUR:   I have only had an opportunity to look at it very briefly, Mr Merkel.  It arrived by facsimile in my chambers I think at about the time the matter was listed for hearing.  It is regrettable.  However, you mentioned the question of an issue to do with defences.  Are you referring to consideration, as it were, of the second question in Lange?

MR MERKEL:   Yes, your Honour.

HER HONOUR:   Yes.  Is there some suggestion that the special case procedure may not be suitable having regard to issues that that question may raise?

MR MERKEL:   No, your Honour.  This is a case where, it seems, there are no facts that are contentious and the only reason we really are providing for defences is that the legitimate interests that are to be contended for need to be identified and we just need to give some consideration before final agreement on the special case as to whether there should be any further documents put in, but we are not aware of any facts that would or could be contentious.  So we do not see the special case procedure being inappropriate because of the second Lange question.

HER HONOUR:   I see.  What is it you seek today, Mr Merkel?

MR MERKEL:   What we are seeking today, your Honour, and I think there is agreement between us all on it, that your Honour direct that defences be filed within 14 days, that any special case agreed by the parties be filed within 21 days and that your Honour merely adjourn the directions hearing to be brought on on seven days notice, but if your Honour wishes to nominate a date, that would also be suitable.  The reason why we thought there may be no need for a further directions hearings is if your Honour sees the special case and is satisfied that it is in a suitable form, there may be no need for any further directions hearing and we expect that that is what is likely to happen.

HER HONOUR:   Yes, I understand.  All right.  I might hear from the other parties.  Thank you, Mr Merkel.  Yes, Mr Solicitor.

MR SOFRONOFF:   Your Honour, I have nothing to add to what my learned friend has said except to apologise that you got the document late.  It was my job to get it to you and we dived at the machine just a little bit before 4 o’clock but it was 5 o’clock here.

HER HONOUR:   Thank you, Mr Solicitor.  Do not trouble, I understand the difficulty.  Thank you.

MR HORNEMAN-WREN:   Likewise, your Honour, we do not have anything further to add.

HER HONOUR:   Yes, very well.  In the circumstances, it seems the appropriate course is to make the directions that senior counsel for the plaintiff proposes.  I take it, Mr Solicitor and Mr Horneman-Wren, you agree that the sensible course is to adjourn the directions hearing?  I think the proposal was – was the form of order – to a date on seven days notice.

MR SOFRONOFF:   Yes, your Honour.

HER HONOUR:   It being anticipated that if the special case that is filed in conformity with the directions is in a suitable form, there would still be a requirement for an order referring the matter in, but that could be done in chambers.

MR SOFRONOFF:   Yes, your Honour.

HER HONOUR:   Yes.  That seems sensible.  Thank you.  Very well.

In this matter I make the following orders:

1.Defences are to be filed within 14 days of today’s date.

2.The special case is to be filed within 21 days of today’s date.

3.Stand the matter over to be listed for further directions hearing on seven days notice.

That, I think, attends to all matters.

MR SOFRONOFF:   It does, your Honour.

MR MERKEL:   Would your Honour just order that the costs of the summons be costs in the cause?

MR SOFRONOFF:   Certainly, your Honour.

HER HONOUR:   Yes, indeed.  I am sorry, that was an order, Mr Merkel, that the costs of today be costs in the cause?

MR MERKEL:   The costs of the summons for directions.

HER HONOUR:   The costs of the summons, yes, indeed.

MR MERKEL:   And today’s appearance.

HER HONOUR:   Yes. 

4.The costs of the summons and of today’s hearing are costs in the cause.

Thank you.

MR MERKEL:   Thank you, your Honour.

AT 9.42 AM THE MATTER WAS ADJOURNED