Wynnes Pty Limited & Ors v Western Australian Meat Marketing Corporation & Anor; Wilson & Anor v Western Australian Meat Marketing Corporation

[1992] HCATrans 231

HIGH COURT OF AUSTRALIA

In Chambers

MR JUSTICE TOOHEY

No P 8 of 1989

No P 11 of 1990

WYNNES PTY LIMITED & ORS

- and -

WESTERN AUSTRALIAN MEAT MARKETING CORPORATION & ANOR

TRANSCRIPT OF PROCEEDINGS

AT PERTH

3.00 PM, THURSDAY, 13TH AUGUST 1992

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DR SCHOOMBEE:	May it please the court.
HIS HONOUR:	Dr Schoombee.
DR SCHOOMBEE:	I appear on behalf of the plaintiffs.
HIS HONOUR:	Mr Heenan?
MR HEENAN:	May it please your Honour, I appear with my

learned friend Mr Goetze for the first defendant.

HIS HONOUR:  Thank you.

Miss Wheeler?

MS WHEELER:  May it please your Honour, I appear for the

second defenqant.

HIS HONOUR:  Thank you.

Yes, Dr Schoombee?

DR SCHOOMBEE:	Your Honour, we are once again indebted to you
for rescheduling the rehearing.	We apologise for any
inconvenience caused to your Honour.	I think that we've

reached the end of the line now. There is a very substantial

area of agreement and that has been put into a case stated but

there is however one crunch area where we haven't been able to

reach area. That concerns paragraph 37; namely, the steps

comprising the scheme. There is a further - -

HIS HONOUR:  I stop you. I should be looking at the last

revised discussion draft - -

DR SCHOOMBEE:  That has actually been - - Yes, sir, another

one of the - - if I may hand it up to your Honour.

HIS HONOUR:  Has that been filed?

DR.SCHOOMBEE:  No. That has not been filed.

~LIS HONOUR:  It is proposed that it be filed?

DR SCHOOMBEE:  Yes. I understand that it incorporates all our

i:-irnendments, except we still have to check it - -

I-IIS HONOUR:	Yes.
~'1~<- HEENAN:	Your Honour, it was completed only some 20 minutes
.:.:qo.	It incorporates most of the matters discussed at a

cunference today. There are still some matters that require

:·;;ecking and some minor matters in controversy but, as my

::.'arned friend says, there is a point of major disagreement

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between the parties which cannot be addressed . by what is

contained in the document.

HIS HONOUR:	That relates to which paragraph, Dr Schoombee?
DR SCHOOMBEE:	May I take you to the last document, on page
30, your.Honour?
HIS HONOUR:	Yes.
DR SCHOOMBEE:	Paragraph 37, page 30.
HIS HONOUR:	In the document that I am now looking at is

paragraph 37 in the same form as it was the other day?

D~ SCHOOMBEE: Identical form, it should be, your Honour. I

last looked ~tit - - Your Honour, I recall that your Honour

made observations as to how it may be reformulated, by stating

simply that it was a requirement - - required steps in compliance comprise - - However, we have been unable to agree

generally on such a formulation covering the steps that are set out there. There are also one or two additional matters

that the plaintiffs wish to add by way of drafting, referring

to the wholesalers, or the role of the wholesalers, and we

have been unable to reach agreement on that aspect, so - -

HIS HONOUR:	Are those problems fatal to the stating of the
case?
DR SCHOOMBEE:	In my view, they certainly are, and I think

that it's a view shared by the other parties.

HIS HONOUR:  So when you said that you had reached the end of

the line, you didn't say that in any note of optimism?

DR SCHOOMBEE: No. That was a - -

HIS HONOUR:	A cry of despair, was it?
DR SCHOOMBEE: - - a deep pessimism, in the sense that,

despite all the many hours spent, we have to go to a hearing

on· a· matter but - - which there seems to be, even on the

factual issue, considerable agreement, but I think that the

right point really is, your Honour - - is that there are

certain steps taken from, as it were, the time the lamb leaves the farm until it gets processed and sold into the retail

market and whether these steps are simply followed as a matter

of convenience or whether they are a matter of instruction by the first defendant - - that seems to be. the major stumbling

block; in other words, what degree of control the public body

exercises over the whole process. That in its elf may of

course impinge·· on the question of asking whether a tax is

being extracted or not.

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so really the issue, to state it in broad terms - - In my

view, the matter that is in issue is the· steps taken in

implementation of the scheme in respect of the domestic

abattoirs and the sources for these steps, being it the Act, regulations, instructions and the like. I understand that my

learned friend Mr Heenan may wish to make the - - extend the

issue to. the whole operation of the scheme, to include Robb

Jetty and presumably the other export abattoirs, so that would

really be the issue of how it operates. On my view, there is no dispute as to Robb Jetty but that is not a view that is shared by the other side.

If we remit the matters, your Honour, it can be remitted,

in my respectful submission, I suppose, in one of two ways. We

can either remit it with reference to defining the issue or paragraphs of the pleadings or - my learned friend Mr Heenan suggested - we simply remit to follow the wording of the Mabo case, as adapted to our case, to remit all issues of outstanding fact raised by the pleadings, then either to the

Supreme Court of Western Australia or the Federal Court for

hearing and determination.	We would certainly - -
HIS HONOUR:	But on that basis you would not - - Would you be

asking this course to remit the whole of the matter?

DR SCHOOMBEE: No, no, no. We would most definitely - -

speaking for the plaintiffs, we would ask the court only to

have the decision on those factual issues and the matter then

come back to this court to proceed through the completion of

the case stated to a hearing.

HIS HONOUR:  Well, that would need to be spelt out in a very

considerable decision.

DR SCHOOMBEE:  Yes, yes .

..

HIS HONOUR:  In Mabo, the order was one which, for very

particular reasons that I wouldn't have thought were

~pplicable here, remitted all questions of fact - -
DR SCHOOMBEE:	Yes.
HIS HONOUR:	- - reserving to the High Court questions of law

arising from findings of fact.

DR SCHOOMBEE: Yes. I see that it is really a limited issue.

On my estimation, it may well be determined within the period of one day's hearing. We would certainly want the matter to

be argued, the actual matter to be argued, in this court.

HIS HONOUR:	Yes.
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DR SCHOOMBEE: My understanding is that where the court does

remit a matter, certainly in general terms, then the procedural steps are left to the court receiving the remitted matter, so matters such as discovery and the like can be dealt with by the court receiving the remitted matter, unless your

Honour is of the view that it may be different, where only an

aspect of the case is being remitted, as we would be

requesting at this stage.

HIS HONOUR: Yes. I can see difficulties, and none of them

are inseparable, but it just concerns me that there may be

considerable time taken in having the particular aspect that

is to be remitted disposed of with the risk that something may

surface with shows that the remitter is not going to dispose

of all disputed questions of fact.

DR SCHOOMBEE~ Yes.

HIS HONOUR: Why shouldn't the matter go in its entirety to

another court, on the basis that the parties have reached

agreement on most matters, and let that court dispose of

it

DR SCHOOMBEE:  Yes.

HIS HONOUR: - - and come back to this court by way of appeal

in the ordinary way, assuming special leave to appeal sought
and granted?

DR SCHOOMBEE: That is certainly our major concern, your

Honour. It is a difficult area, with some novelty. It means

that if we go to the Supreme Court or Federal Court, we really have to follow a very difficult appeal process to come to this

court and we would certainly	·
HIS HONOl:J'R:	How do you mean "a difficult appeal process"?
DR SCHOOMBEE:	By applying for special leave, as I understand

it, which is something that is - -

HIS HONOUR:  Well, ther.e would be a step in between of course.

·· There~would be an appeal as a right to either the Full Court

of the Federal Court.or the Full court of the supreme Court.

DR SCHOOMBEE: I mean no disrespect to those courts , your

Honour, but that makes it worse because it means that we have

to go through them to get to an authoritative ruling, with

respect, from the High Court and particularly - -

HIS HONOUR:	Lots of cases follow that course.	The majority
of them do.
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DR SCHOOMBEE: I realise that, but certainly we would say

that, given the very limited dispute of fact as it is presently, it is a matter that, in our respectful

submission·- - Certainly that would be our submission; that it should be remitted only for a finding on those matters and

that the matter then come back to - -

HIS HONOUR: Is that a view, to your knowledge, that is shared

by counsel for the defendants?

DR SCHOOMBEE:  That is, to my knowledge, of the defendants,

your Honour, but - -

HIS HONOUR:	Well, I will hear from Mr Heenan as well in a
moment.	I just want to explore what the possibilities are for

the moment. There is no fundamental difficulty that I can see

in remitting. an identified part of a matter to either the Federal Court or the Supreme Court but it carries with it the

risk that the decision of that court is not necessarily going to dispose of issues of fact, all issues of fact, simply

because parties may not have appreciated that there is some

area of dispute that is not covered by the remitter.

DR SCHOOMBEE:	I can accept that, with respect - -
HIS HONOUR:	If the parties recognising that risk say "That is

what we want to do"

DR SCHOOMBEE:	Yes, yes.
HIS HONOUR:	- - then perhaps I should simply accede to that.

DR SCHOOMBEE: Yes. Those would certainly be my submissions.

I appreciate what your Honour is saying. It is the problem that we always have with a limited hearing on anything, isn't

it? There may be other issues that may arise.

HT.S HONOUR:	What happens to the decision of the court on the
:<.emitter?	DR SCHOOMBEE: .Well, my understanding is that that would then
.re.ally supply the factual basis of that aspect of the case
:i.nd, as I understand section 18, it requires your Honour to
state a case and that aspect of a case will then be stated on
~he basis of the findings of that court.
:ns HONOUR:  so that that area of dispute - -
DR SCHOOMBEE:  - - is obviated in a sense.
;us HONOUR: Well, that is one way of putting it. I would say '~ i1at the other way is to say that it is not subject to appeal.
= ,:an't recall a remitter of a part of a cause. I don't mean
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that there have not been remitters of that sort, but just from

my own experience I don't recall one.

DR SCHOOMBEE:  Yes, yes.

HIS HONOUR: Mabo is in a very special position because the

entirety. of the matter was remitted but for the purpose of fact finding. All questions of fact were left to be

determined by the Supreme Court of Queensland.

DR SCHOOMBEE: Yes. Your Honour, that may be an alternative,

if the other appears to have complications - - is really to have, or outstanding - - but we would certainly ask for outstanding issues of fact determined and then to leave all matters of law for this court.

HIS HONOUR:. Ordinarily the High Court looks for the assistance of judgments from either the Supreme Court or the Federal court, depending where the matter has been heard.

•	DR SCHOOMBEE: Yes. I mean, this is a matter but for - - With
respect, there is one area of dispute that would have come before the court in its original jurisdiction and we - -
HIS HONOUR:  Yes. I appreciate that.
DR SCHOOMBEE:  And also the nature of the matter. If I may

add, you could get cases and cases in that area. I mean, it

really does raise - - Certainly I think that I can say without

any hesitation, in the bounty area, if nothing else, that it

raises issues that have never been litigated in the High Court, to my knowledge, in recent times at all. Sir, I think

, that it is a matter where it would be - - Certainly our

clients would find it very onerous to have to try and climb

the ladder to the High Court to have the matter decided there. I mean, there is a question in these areas of the view that the High Court may take of, say, old decisions. There is at

least one old decision that one would have to look at in the

area of bounty and really, in .our respectful submission, the

High Court would be the more appropriate forum to look at	that~ that issue, than the supreme Court or the Federal court.
HIS HONOUR: How wide is the area of dispute in terms of the
likely duration of the hearing and the number of witnesses to
be called?
DR SCHOOMBEE:  As I can see it, it is really a very, very
narrow dispute. It is something which with, say, limited
discovery by list of documents - - I would certainly say one
could resolve in a day, if it takes that long, because you are really looking - - There may be a number of issues but you
are really looking at "Were instructions given that this is
the way the scheme has to operate or was it simply done by
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agreement or was simply, say, a practice followed?" because

the steps within the domestic abattoir aspect of the scheme

are largely common cause.

HIS HONOUR: What I am about to say I say with some

reluctance, but if there is a narrow question of fact to be determined, is there an argument for the justice of the court

determine - -

DR SCHOOMBEE:	That was one of my fall-back submissions that I
wished to make.
HIS HONOUR:	It certainly hasn't been the practice of the

court in recent years.

DR SCHOOMBEE: I understand. Your Honour, I would

respectfully .submit that, particularly because of the - -

HIS HONOUR:	I know who it will be, I suppose.
DR SCHOOMBEE:	Only got one out of seven, even on statistics,

your Honour. Yes. I think that that would be, with respect,

the most - - Certainly speaking for the plaintiffs, that would

be, we would see, the easiest and most appropriate way because

it is really a matter which can, in our view, be readily

resolved. It is not a matter - - I mean, we may ask the first defendant simply for discovery by list of documents relevant

to the issue but subject to that I don't see any other matters

really of relevance. It is not like some complex commercial

dispute where you have to delve into, for instance, both

sides' documentation. I think that we would have very little

documentation emanating from the first defendant and I think

that my learned friend - - The second defendant has quite

rightly said that she has nothing in this context.

HIS HONOUR: Well, subject to anything Mr Heenan may say or

Miss Wheeler may say, and I am not seeking to prejudge the

matter, but it may be that, from the plaintiff's point of

view,, . the most you can do at the moment is identify the question that is outstanding and then leave it to me to make a	d~cis~on as to whether it should be by way of remitter - -
DR SCHOOMBEE: Yes.
HIS HONOUR:  ~ - or remains in the court for determination as
u question of fact.
DR SCHOOMBEE:  Yes, yes. Can I just, on that point, take you
to the pleading or to the
~HS HONOUR:  Yes.
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DR SCHOOMBEE: Your Honour, when we discussed paragraph· 3 7 last time, I think the suggestion was, and that was the note on which we parted, that we may simply obviate the problem

by saying that the steps required to be taken by the

parties - - and then one could either say "in compliance with

the provisions of Part III of the Act" or you could simply

say "under the scheme comprise", and then there were

following - - There were certain steps set out. May I just perhaps - - I think that that will define the issue

better. May I just hand you up draft changes to the matter

which really identifies· what the issue has been. If I may

take you, with respect, to page 2, the last paragraph there,

your Honour, that contains our changes which were formulated

as a result of a discussion in court the other day, so we

would simply introduce by saying "the steps required to be

taken by the parties under the scheme comprise".

HIS HONOUR: That is an alteration, isn't it?

DR SCHOOMBEE: 

Yes. That is an alteration.

HIS HONOUR: 

Because the words "should have" have gone.

DR SCHOOMBEE: Yes; taken out. That is right. We have also

simply said "under the scheme 11 , or one can also say "an

implementation of the scheme". I think that I should add there that, in view of the discussions, we would probably now

the domestic abattoirs 11 • We then set out in the formulation say - - To make it quite clear, one should say "in respect of

on page 2 and further simply the changes - - We have simply built in changes into the steps to be taken. If your Honour

changes. In fact, it is simply to build7 in the role of the	goes through them, you will see that there are very little
wholesalers in the domestic abattoirs.	The change suggested,

which is on paragraph (e), we are willing to let go - -

HIS HONOUR:  Yes.

DR SCHOOMBEE:  so really the changes on the first

paragraph (a) , "in manner and form agreed upon by the parties involved" - - Well, we think that that is really implicit.

In the paragraph we simply try to spell it out, to say

that it is not a sale necessarily at the producer price schedule, so it is - - call it II commercial terms" . That

may be the same as the producer price schedule but it is not

actually at that. There is not requirement to do it at that price. The rest simply puts into the play something certainly

which - - Certainly I think in broad terms one can say that there is common cause, that there are certain wholesalers who also sell to and buy from the corporation. However, the real

dispute then arose at a broader level; that is, that our

understanding in approaching this has always been that it

refers to the private abattoirs, but the first defendant's

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view was that - - Sir, may I add that that was the view that we have taken of their pleadings, all through it, where we

have taken these steps from, that actually there should be no

differentiation as to the scheme as it operates in respect of

a private abattoirs at Robb Jetty, and one should not even

try and say what happens in respect of the domestic abattoir

side of . things without differentiating - - with any form of differentiation. You should only have one global matter. Of course, that did raise a very difficult issue because

it really meant that, certainly from our perspective,

our assumption, that we are talking about domestic

abattoirs - - fell away.

There were then a - - We found it impossible to try and

fit into paragraph 37 the version of what happens at Robb

Jetty, but the problem about that of course is that it is

really common cause on the factual matters which occurred at

Robb Jetty, who sells to whom and what happens to the product,

so it is really that very broad characterisation, whether you

did - - looking at one scheme but with different steps operating at different point or whether you should make in any

form, even in formulating the case, any differentiation as to

these aspects. But really. the fact that - - and except for the role of the wholesalers, the other matters are quite - -

also a break7 point, that the - - although again the pleading	are really common cause. But the steps required - - that was
spoke about steps taken by the parties, or alternatively
should have taken by the parties - - we would have thought
that that means "required" but there was a reluctance to
extend the steps required to the first step, (a) the delivery
and sales of lamb, as formulated .....
HIS HONOUR: Dr Schoombee, I think probably that as much of
the court's time as can fairly be expected in the resolution of the case stated has been taken up.
DR SCHOOMBEE:  Yes .
HIS HONOUR: Really what you ought to do is prepare a minute
.on; an alternative footing of the question of fact that you see
to.· be outstanding, formulated by way of remitter or,
~lternatively, remaining with the court for determination - -
DR SCHOOMBEE:  Yes.
HIS HONOUR: - - subject to what other counsel may say. Of
course, there will be an opportunity for the defendants to
.::espond .
DR SCHOOMBEE:  Yes.
T:'TS HONOUR:  And I think I just make a decision one way or the
.	::;':her.
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DR SCHOOMBEE:	Yes.
HIS HONOUR:	Or we will be going on like this for a long time.

DR SCHOOMBEE: No. I appreciate that. I just thought that I

would explain to your Honour because when you get the minute

you will -appreciate where the area of dispute - -

HIS HONOUR:	Yes.
DR SCHOOMBEE:	But I appreciate that we can formulate it in a

way - - which we say "What is the issue to be tried7?"

HIS HONOUR:  Yes. Thank you.

Mr Heenan, what do you say about the various matters that

have been canvassed?

MR HEENAN:  Your Honour, the disagreement between the parties

appear to go to the content and extent of the scheme. The real area of disagreement turns on whether particular steps,

which are acknowledged by the parties to occur in practice,

are within or without the scheme.

HIS HONOUR:	You are now using the scheme in the sense of - -
MR HEENAN:	- - the statutory - -
HIS HONOUR:	- - the statutory scheme, are you?

MR HEENAN: Statutory scheme.

HIS HONOUR:  Yes.

MR HEENAN: Or whether they are the result of some anterior

commercial negotiations between the parties or are simply

practices which have developed by way of convenience which

have no coercive or formal effect. I suggest that it is fair

to say. that the position taken by the first defendant is that

the~e is an extremely limited compass to the coercive

components of the scheme.

HIS HONOUR:  Would that not be a matter to be distilled from

the language of the Act itself?

MR HEENAN:	Well - -
HIS HONOUR:	Or is that too simple an approach?

MR HEENAN: We are very sympathetic to that argument but, as I understand my learned friend Mr Schoombee' s submissions, as they have developed in conferences, he would contend that practices and conventions, or indeed a historical system of

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trading which has developed, has for a variety of reasons

assumed the character as being part of a coercive scheme and my learned friend is contending for agreement or findings that dealings between producers and abattoir operators before any point of compulsory acquisition, or any ownership obtained by the corporation, are inseparable or inseverable7 parts of the

scheme and give colour to the economic impact of the scheme in

its overall effect.

can I, without attempting to take your Honour's time

unnecessarily, just give one example, which is the trigger

point for the differences? As paragraph 37 as drawn sets out,

the starting point, as the corporation would have it, of the

scheme is when lambs are delivered to an agent of the

corporation for slaughter. My learned friend contends that it

is vital to the plaintiff's case to conclude that the scheme

commences by_ sales from producers or others to the abattoir

operators and contends that producers and others, except a

privileged few, are precluded by the operation of the scheme,

at least in the private abattoir system, of selling direct to

the comi.uission or to the commission's agent. Now, that

difference gives rise to all kinds of questions as to when the

scheme really begins and whether, what we would say,

"commercial practices which have grown up" are part of the

scheme and bear any coercive effect.

It is also part of the plaintiff's contention that, at least in its operation or administration, there are two distinct parts of the scheme or, put another way, that the scheme is operated significantly differently in two aspects,

one in relation to the domestic system of abattoirs and one in

relation to the export abattoir at Robb Jetty operated by the

first defendant. Now, again we acknowledge that there are

factual differences which are rendered necessary by the separate destination and means of processing of lambs

delivered to the export or domestic market but we maintain

that there are not, and never have been, two separate or

distinct schemes or components of the scheme.

These differences may appear at first glance to be

marginal but they do seem to provoke a profound difference of View as to the characterisation which should be given to the

,.:,peration of the scheme, either as one entity or as to two

~ntities, and for that reason it is probably a little difficult at this stage to predict just what impact the

various disputes of fact will have on that characterisation

;,rocess. I think that my learned friend Dr Schoombee would

contend, and it would seem fair for him to contend, that the

:.,iggest area of difference between the parties is the :::haracterisation, whether of fact or law or mixed fact and

:: aw, which should be put upon the practices which are followed

:.·-.1.ther than any dispute as to the practices themselves, but

'.:.:-,at qt:.estion of characterisation cannot very easily be

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separated from an analysis of the actual process of the scheme

either as required by the legislation, if that is as far as

one needs to look, or - as it has historically been

conducted - by those participating in the industry, which is

the view which the plaintiffs contend for. Consequently,

while this area of difference is in a sense narrow, it does, in our respectful submission, canvass the beginning and the

end of what may be regarded as the scheme and the content of the scheme and that would make it difficult, by way of any

kind of order at this point, to dissect a factual issue which

could be separated with sufficient certainty - -

nIS HONOUR: Do you say that, ,Mr Heenan, in the sense that to

isolate paragraph 37, and in some way formulate an issue for

determination, would not dispose of the outstanding areas of

dispute?

MR HEENAN: The answer to your Honour's question very much

depends on how it is drawn but I could not feel confident that that could be done with sufficient safety to avoid the kind of risks of an inconclusive finding and consequently we would

s~ggest that any remitter should in effect require the court

conducting the remission, or this court, if evidence is to be taken, to determine what is the content of the scheme and how

it is practised. That really seems to be the point.

HIS HONOUR:  Does that still focus on paragraph 37 or on other

parts of the draft case stated?

MR HEENAN:  I think that it may have some implications for

other parts of the case stated but it is at its darkest in 37.

HIS HONOUR: That points out something that I canvassed with
Dr Schoombee; that if there is a remitter of some question or

questions of fact, it may well prove as the matter proceeds

that it is not going to resolve all outstanding issues.

MR HEENAN: 

That would be our fear, your Honour, and it is a

possibility too dreadful to contemplate, almost. In our

respectful. submission, if there were to be a remitter or an

order for the trial of any particular issues, it would be more

prudent, we would say, with respect, to couch that in broad terms so as. to allow all possible differences and the

implications associated with them to be determined.

HIS HONOUR: That might be best met by remitting the entire

matter and leaving it then to the parties to present the court before whom the matter comes with agreed facts, leaving an

area of dispute. It just seems to me that to attempt to isolate an issue or issues of fact might well prove in the end

not to achieve what is hoped to achieve. Then the parties are

back here again.

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MR HEENAN:  We would respectfully concur with your Honour's

perception of that risk. Now, it may be that by remitting the whole matter without differentiation, in the knowledge_ that

there is a very large measure of agreement between the parties

in any event, the ultimate investigation by the fact finding tribunal would be of a comparatively short duration. I would

not be quite as optimistic as my learned friend Mr Schoombee.

HIS HONOUR:	I was going to ask you that.
MR HEENAN:	But certainly it is a matter which ought to be

capable of resolution within a few days.

HIS HONOUR:  Then what stands in the way after that of course

is the appeal process

MR HEENAN:  Yes.

HIS HONOUR:  - - which, if availed of, would take time and

cost to the parties.

MR HEENAN:  Yes.

HIS HONOUR:  It may be the only course that is open.

MR HEENAN:  Well - -

HIS HONOUR: I mean, short of this court, as it were, becoming

seized - well, it is seized - of the matter and embarking upon

a trial which would be, to put it at its lowest, a most

unusual course for this court to adopt.

MR HEENAN: Indeed, your Honour. The alternative is to remit

matters of fact for finding by a judge of an appropriate court

and to report back to this court. That in itself raises problemS' as to disputes, as to what might arise as to facts

which have been found, but we would support my learned friend

Dr Schoornbee in his contentions that this is a piece of litigation which is essentially a matter of constitutional significance. It is in an area of law · where there is much

controversy as to the true ambit of the doctrine of excise, where the concept of the bounty has not been settled, or at

least re-examined, for some very considerable time and where

it is likely that the judgment of this court would eventually

be called upon to resolve those doctrinal constitutional
points.

HIS HONOUR:  Most of those questions tend to get before this

court by way of case stated

~1R HEENAN:  Yes.

:ns HONOUR:  - - or possibly en demeure 7 •

~-3.8.92

~,.,ynnes  MR HEENAN QC 42

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MR HEENAN: Yes. It is a matter of considerable regret that

wear~ in the situation we are in and I am not, by making that

remark, intending to reflect in the least upon any of the

participants upon this process of attempting to resolve the

matter. It is that there are just irreconcilable differences

of characterisation as to what constitutes the scheme.

HIS HONOUR:  Mr Heenan, at least from the first defendant's

point of view, have the pleadings closed?

MR HEENAN: Yes, your Honour. The situation is that in light

of the extensive discussions which have occurred in the attempts to settle this case the plaintiffs, and probably the first defendant, may well desire to make modest adjustments to the pleadings of a comparatively minor nature but, in our

respectful submission, they would not be extensive, nor time

consuming, nor unfortunately be likely to reduce the area of

present dispute.

HIS HONOUR:  Could I ask you directly what course it is you

invite the court to follow?

MR HEENAN: In our respectful submission, your Honour, it

would be appropriate to remit all questions of fact for

determination by a judge of another court and to report on

those findings to this court for the legal issues to be

determined.

HIS HONOUR:  Yes.

MR HEENAN: Now, I am conscious in that formulation that the real area of difference between the parties is the

characterisation which should be put upon certain steps which, in a temporal sequence, are followed in any representative transaction, whether or not they fall within or without "the

scheme"· and whether or not they are attended by any degree of

coercion or compulsion sufficient to colour any eventual costs

as a tax.

HIS HONOUR:	To which court do you submit the remitter should
go?
MR HEENAN:	My learned friend Miss Wheeler has some
submissions to make in that regard.	We have no particular
submission in that regard.

HIS HONOUR:  Yes. Thank you.

Miss Wheeler?

MS WHEELER: May it please your Honour. Apart from the

question of the appropriate court, your Honour, I would

respectfully adopt the submissions made by my learned friend

13.8.92

Wynnes	MR HEENAN QC	43
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Mr Heenan - I don't wish to repeat them - and the only

submission that the second defendant would have to make in

respect of the appropriate court is that it would seem to us

on the face of the pleadings that the Supreme Court of Western

Australia would be the natural forum for such an action and we

see no reasons of convenience favouring another jurisdiction. we don't. press that strongly upon your Honour but that would

be the view that we would take. Those would be our

submissions, your Honour.

HIS HONOUR:  Yes. Thank you.

Now, Dr Schoombee?

DR SCHOOMBEE:	Your Honour, let me explicate what has
certainly been, I suppose, part of our case.	My clients are

litigating against people with deep pockets. For my clients

it would really be very difficult to go to a lower court, stay

there and try and climb the appeal ladder, which they may have

to do in this context. My learned friend Mr Heenan spoke

about characterisation. I mean, that is the whole point. A

number of the issues that he refers to are matters of law. I

mean, if you set out the steps that happen at the domestic

abattoirs and then you then set out the steps which occur at Robb Jetty, and these are common cause, you are dealing then with a pure matter of argument, whether there is one or two

schemes and what the implications are, so - - and I don't see

any dispute as to Robb Jetty. I mean, it is really - - Where

he talks about characterisation, he is using it in that context certainly as a question of law so I don't see that as

a dispute. As to the other matters - I think that I have

taken your Honour to it - he referred to his first paragraph as delivery but it speaks of sale and delivery and purchase,

so it doesn't really differ from ours. But I will leave that

there because I don't follow his argument on - -

HIS HONOUR: I think that I have to accept for the present

purposes that there is an area of disputed fact arising out of	paragraph 37, though not necessarily confined to that	paragraph.·
DR SCHOOMBEE:. Yes, yes.
HIS HONOUR: Now, it seems to me that in the light of that 1.,1ha t I should be asking you, to the extent that we haven' t
olready covered it in our exchanges, is this: Should there be
.7. remitter? Should the matter remain with this court to
netermine questions of fact? If there is to be a remitter, is
Lt a remi tter in the ordinary sense of a remi tter of the
:~~atter to be determined both as to fact and to law by the
,:ourt to which the matter is remitted, and which is the 39propriate course for the purpose of remitter?
:. ~ .. 8. 92 ·.;:zrnnes MS WHEELER 44

DR SCHOOMBEE

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DR SCHOOMBEE:  Yes. I will try and address those in turn,

your Honour. Our first submission, and primary submission,

would be that we would see that any disputes to be in such a

narrow compass that it can be resolved by this court. That

would certainly be our preferable option, if that is an option

available in your Honour's discretion. The second alternative

submission would be to join with Mr Heenan then, if the matter

be remitted, that it should be remitted for a finding on outstanding matters of fact but that the matter otherwise

remain in this court. Then of course the third - -

HIS HONOUR: Now, the only advantage of that - - At least from

the parties' point of view, the advantage of that would be to

obviate any steps by way of appeal

DR SCHOOMBEE: That's right.

HIS HONOUR:  - - between the court that determines the

questions of fact and this court.

DR SCHOOMBEE: That's right. There would be one hearing and that would be authoritative and determinative of the issue.

·As far as the courts are concerned, your Honour, perhaps I have some natural inclination for the Federal court. That

would be on a basis that I think we may get a speedier hearing

there. I am not sure to what extent that would be a matter

for this court to consider. The Supreme court would have had

jurisdiction in the matter, as I undirstand it. The Federal

court would only have jurisdiction of this matter in a sense
on the cross-vesting basis. I don't think that there is any other basis on which the Federal Court would have

jurisdiction. Those are the matters, the only matters, that I

can put before your Honour. There may also be greater

flexibility · in the directions of the Federal Court - they

allow for mediation - but I think that we have probably

reached the stage - -

HIS HONOUR: Well, yes.

DR SCHOOMBEE:	- - beyond mediation with that.	We .have had
our
HIS	HONOUR:	I would have thought that that's the least

persuasive - -

DR SCHOOMBEE: I think that we have gone past that probably,

so it is - - Really the only consideration that I could raise

is that the matter may be more quickly resolved in the - -

HIS HONOUR: It is very difficult for me to say - to take as a

point of determination as between one court and another - that

you may get an earlier hearing before one court unless I have

got some factual material.	I can't speculate.
13.8.92

Wynnes	DR SCHOOMBEE	45
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DR SCHOOMBEE: I agree, I agree, I agree, I agree.

HIS HONOUR:  Yes.

DR SCHOOMBEE: So, your Honour, just going back to what your

Honour said in respect of my original address, I am quite

willing to put forward a minute to see the issues as I see

them to be determined.

HIS HONOUR:  I think that each of the parties will have to put

forward a minute. I don't see any need for it to be done

sequentially because we have explored what the various stands

are this afternoon.

DR SCHOOMBEE: Exactly.

HIS HONOUR: I see no reason why each party can't within

whatever period might be appropriate - seven days or less - file a minute of the orders that that party suggests should be

made. Again I see no reason why that shouldn't be cast in the

alternative, as a priority position and as a fall-back
position.

DR SCHOOMBEE: Yes, yes, yes. I think that it is just important in this exercise that hopefully we won't lose all the time and energy that we have spent to date, so that if we are looking at that minute my understanding is that except for the matters concerning what has been set out in my draft,

which was part of my revised objections - - that we are really

looking at possible objections to paragraphs 53 (a) to 53 (k).

Is that right? Is that the only other additional matter that

is outstanding, except for the paragraph 37? If we could

establish that then we know of course that - - I take it that

my learned friends would come back to me on that because if we

can resolve that then we are literally only in this area.

HIS HONOUR:	Are you in a position to. respond to that, Mr
Heenan?
MR HEENAN: Your Honour, there is an area of amendment to the

draft case, which my learned friend Dr Schoombee has sought agreement upon, which is the subject of some unresolved controversy at present. We are in a situation where we are

:1opeful that that matter can be resolved. It does not seem to

be nearly of the same gravity of the area that we are speaking

of. There may be one or two other similar incidental areas.

HIS HONOUR: But can the court take it that to the extent - - '.:;ubj ect to those objections that have been expressed in recent l1earings, the present draft case stated constitutes an area of ::greement betwe,en the parties? In other words, if the matter ·:,:>re remitted, say, to the Federal Court or the Supreme Court

--: r: Western Australia, is it likely to result in a full blown

~:-.)aring?

~- 3. 8. 9 2

·.-;ynnes MR HEENAN QC 46

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MR HEENAN: No, your Honour. What is contained in the draft

case stated, with the very minor exceptions to which I have

made reference, is agreed.

HIS HONOUR:  Yes.

DR SCHOOMBEE: That is my understanding as well.

HIS HONOUR:	Yes.	Well, it would be unfortunate if that were
not the case.	All right.	Now, perhaps the only question is

this:	How long do you think you will need to formulate a
minute?
DR SCHOOMBEE:	I can certainly do so within seven days.

HIS .HONOUR: ·can you comply with that, Mr Heenan?

MR HEENAN:	Yes, indeed, your Honour.
HIS HONOUR:	Miss Wheeler?
MS WHEELER:	Yes, sir.
HIS HONOUR:	Then all I will - - Did you want to say something

more, Dr Schoombee?

DR SCHOOMBEE:  No .

HIS HONOUR: All I will do at the moment is direct that within

seven days each of the parties file a minute of the order or

orders which that party submits should be made by the court in

relation to the outstanding questions of fact not resolved by

the draft case stated.

.

DR SCHOOMBEE: Just one observation there, I actually

envisaged seven days from when I know the position. It is

would be resolved, when my learned friend-·-	perhaps important to know when these other little matters
. HIS .. HONOUR:	You may just simply have to prepare your document

on the basis that they are not.

DR SCHOOMBEE:	Yes, yes, sir .
HIS HONOUR:	I mean, it can be the subject of amendment later.

DR SCHOOMBEE:  Yes, yes. I would certainly, if I may express

the view, appreciate if that could be resolved.

HIS HONOUR:	Very well.	Thank you.	The court will adjourn.
13.8.92

Wynnes DR SCHOOMBEE 47