XYZ v The Commonwealth

[2005] HCATrans 384

[2005] HCATrans 384

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M14 of 2005

B e t w e e n -

XYZ

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 1 JUNE 2005, AT 9.31 AM

(Continued from 4/5/05)

Copyright in the High Court of Australia

MR P.J. HANKS, QC:   Your Honour, I appear with MS K.L. WALKER for the plaintiff.  (instructed by Buxton & Associates)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Before I call on the parties, I should say that for reasons that do not presently matter, there is no transcript of the directions hearing that occurred last in this matter.  There was a deficiency in the arrangement.  What has been recovered though is the reasons I gave at the end of that directions hearing concerning the anonymity of the plaintiff, but otherwise there is no record of what transpired at that directions hearing.  I am not conscious of anything much turning on that or there being any concern about it, but I should draw it to the attention of the parties and explain why when you go to the file you will not find a transcript of anything but the reasons.

Mr Hanks, where are we up to?

MR HANKS:   The parties have reached agreement, subject to one small point that I will raise with your Honour now, on the form of the case stated and the questions to be reserved.  I trust that that has been filed.  I suspect ‑ ‑ ‑

HIS HONOUR:   I have a draft case stated filed at 18 May.  Is that a useful draft to work from?

MR HANKS:   Yes, your Honour.  The learned Solicitor and I have just discussed a possible change to paragraph 4.  My friend has suggested that we insert after “is not” the words “and never has been”, and after the words “Australian citizen” we insert “or resident”, and that is all.  Subject to those small additions, we have nothing further useful to add, your Honour.

HIS HONOUR:   Is it proposed that the indictment be annexed to the case stated?  I am not suggesting that that is necessary or even that it is desirable, but is there to be any document that would be attached to the case stated, or we simply go forward on the two pages?

MR HANKS:   Our intention was to allow this document to speak for itself and not to be supported by any other documents.

HIS HONOUR:   As I say, I see no difficulty about that.

MR HANKS:   We have attempted to be as comprehensive and clear as we could.  We think it is self-supporting.

HIS HONOUR:   Yes.  Mr Solicitor, is there anything you wish to add to what Mr Hanks has said about this?

MR BENNETT:   No, your Honour.  The question of the plaintiff’s name is a matter between the plaintiff and the Court.  We move for expedition.  Your Honour will recall on the previous occasion I submitted that it does not matter which goes first.  What matters is that both proceed independently as quickly as possible.  Subject to the dates actually clashing, they should just both be expedited, and we ask your Honour to expedite this aspect of the matter.

HIS HONOUR:   There is of course the practical difficulty then, Mr Solicitor, that ordinarily I would have expected that all available Justices would sit on a case of this kind, and of course there will be six available Justices for at least a large part of the second half of this year.  Do you think it appropriate to say anything about that, or is that going to be a matter for the Court to deal with?

MR BENNETT:   Only this, your Honour.  There are two ways the Court could deal with that.  One is, subject of course to the views of Justice McHugh and the other members of the Court, to take the view that the issues in this case, without putting necessarily the question of how strong they are on one side or the other, are very short and simple.  The difficulty of all seven members of the Court having to write a judgment before 1 November might not be as serious as it might be in another case. 

The other aspect is that it is a – the same sort of approach.  It is unlikely to be an issue in which the Court would divide 3:3.  So for both those reasons, we submit that it would be desirable if the matter could proceed before November either with six or with seven.  But both those are entirely matters for the Court of course.

HIS HONOUR:   Yes.  Mr Hanks, do you ‑ ‑ ‑

MR HANKS:   We do not have any opposition to the expedition application and we do not wish to indulge in the type of semi speculation that we have just heard from the Solicitor.  The issues in this case might be quite complex in fact.  Once we get over a hurdle, they will be quite complex.

HIS HONOUR:   I will state a case substantially in the form of the draft case stated filed 18 May as proposed to be amended in the fashion described by Mr Hanks this morning.  If the parties could join in submitting a copy of that case stated engrossed for signing by me before the end of this week, that would be of assistance.  Obviously it is as well that a little time is taken to check the engrossment copy that is submitted so that it can be accurate.  If I make the costs of today costs in the cause, would that be an appropriate course to follow?

MR HANKS:   Yes, your Honour.

HIS HONOUR:   That I think is the only order that need be made, namely that the costs of today be costs in the cause.  I will state the case when it is submitted to me.

MR BENNETT:   Your Honour, may I just say one other thing about expedition that I need to say, and that is that there are a number of other prosecutions under this legislation which potentially could be affected or held up by these proceedings.

HIS HONOUR:   That are now pending, Mr Solicitor, or that are proposed?  Are you able to say?

MR BENNETT:   I am able to say that there are some pending, your Honour.

HIS HONOUR:   Are there?

MR BENNETT:   I am not aware whether the constitutional issue has been raised or referred to in those matters.

HIS HONOUR:   But obviously the determination will affect what happens in those proceedings.

MR BENNETT:   Yes.  It is an important issue from the Commonwealth’s point of view, quite independently of the factors relative to this case which are in the affidavit.

HIS HONOUR:   Yes.  How long will it take the parties to produce a case stated book?  The case stated book would, I would have thought, have been very slim indeed.

MR HANKS:   The pleadings and the case stated.

MR BENNETT:   It can be done within a week, your Honour.

HIS HONOUR:   Yes.  I shall make no order for expedition, but I have noted what has been said and I shall draw those matters of course to the attention of the Chief Justice, who will no doubt take them into account in making a proposal about the time at which the case will be fixed for hearing.  I will make the order for costs and otherwise simply adjourn.

AT 9.40 AM THE MATTER WAS CONCLUDED