State of South Australia v Commonwealth of Australia A18/1994 [1995] HCATrans 65 (10 March 1995)

TRANSCRIPT

OF PROCEEDINGS

AUSCRIPT

O/N 8169 24.3.95

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No M46 of 1994

B E T W E E N: THE STATE OF VICTORIA

Plaintiff

-and-

THE COMMONWEALTH OF AUSTRALIA

Defendant

ADELAIDE OFFICE OF THE REGISTRY

No. A18 of 1994

B E T W E E N: THE STATE OF SOUTH AUSTRALIA

Plaintiff

-and-

THE COMMONWEALTH OF AUSTRALIA

Defendant

PERTH OFFICE OF THE REGISTRY

No. P16 of 1994

B E T W E E N: THE STATE OF WESTERN AUSTRALIA

Plaintiff

-and-

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions Hearing

DAWSON J

AT MELBOURNE, FRIDAY THE 10TH DAY OF MARCH 1995

____________________

MR D. GRAHAM: If your Honour pleases, I appear with my learned friend, MS P. TATE for the plaintiff in each of the three actions.

HIS HONOUR: Yes, Mr Solicitor.

MR T.J. GINNANE: If your Honour pleases, I appear for the defendant in each of the three matters.

HIS HONOUR: Yes, Mr Ginnane. Mr Solicitor, I have read the case and I have read the statements of claim. I am not sure that I understand all the convolutions in the statements of claim. There is no difficulty about stating your case in three matters at the one time is there?

MR GRAHAM: We would say not, your Honour. That course was adopted following discussions with the senior registrar and the district registrar in Melbourne. It seems a convenient course from the point of view of the court; the relevant facts are common to all. There could be a separate case stated in each action, but that could simply involve a multiplying of paper.

HIS HONOUR: The only thing is that they are not the same questions that are asked in each matter.

MR GRAHAM: No, they are not.

HIS HONOUR: Is that because of a lack of co-operation amongst the states? There are some differences I note.

MR GRAHAM: There are some differences, your Honour. We, to a very large extent, have found common ground as between the plaintiffs, but there are some matters which were not the subject of resolution and will be pressed by one state but not by the others in certain respects, or at least a decision has not been taken not to proceed with some of the grounds of challenge, that is I think I can safely say that that is true in the case of Western Australia.

HIS HONOUR: You need not answer the next question if you do not want to. Will leave be sought to re-open any decisions of the court? Well, if that is a premature question do not answer it.

MR GRAHAM: It is a little difficult to respond, your Honour, because of the pending decisions of the court in what we call the SPSF number 2 matters which were heard in June last year because that may put a different complexion on some of the arguments which we would be seeking to address on the implied limitations aspect.

HIS HONOUR: I had in mind the external affairs part really.

MR GRAHAM: No, I think not, your Honour, but perhaps we could reflect on the question further, but at least so far as Victoria is concerned we have not contemplated any attempts to re-open any of the more recent decisions of section 51 29.

HIS HONOUR: Very well, perhaps we will hear from Mr Ginnane. What do you say as to the case stated, Mr Ginnane?

MR GINNANE: Our position is the same as the Solicitor General.

HIS HONOUR: So it is by consent.

MR GINNANE: It is by consent, your Honour. Could I hand to your Honour also by consent a case stated which contains one amendment to the case stated your Honour has seen. This is done by consent and I will just direct your Honour to the amendment. It appears on page 2, your Honour. It adds a new subpararaph to paragraph 4 and the new subparagraph is indeed subparagraph 4, on page 2 which provides that the provisions of the act were further amended by the Industrial Relations Amendment Act No.2 of 1994 which came into operation on 30 June 1994 and that is the amendment that is inserted by consent.

HIS HONOUR: It seems fairly uncontroversial.

MR GINNANE: I would have hoped so, your Honour. Could I, just while I am on my feet, mention one other matter about the case and this is just out of abundant caution. I ask your Honour to turn to page 6 of the case in respect of the South Australian case.

HIS HONOUR: Of the South Australian?

MR GINNANE: Of the, I am sorry, page 6 of the case stated your Honour which deals with the questions raised as a result of the South Australian case. Question 7 says this:

Are any of the following provisions of the act or any part of such provisions beyond the legislative powers of the Commonwealth and invalid in their application to the State of South Australia in relation to persons employed to enable the state to continue to exist and function as such.

And then over the page various parts of the act are mentioned. Perhaps, your Honour, out of abundant caution we just wish to state this: that the question as framed of course is not a concession as to the existence of the class of such persons or the numbers of persons in such a class, it is really a question to receive an answer to whether the act is invalid to the extent that it applies to such a class however, it may ultimately be defined. Your Honour, the case as amended in the way it has been handed to your Honour is agreed between the parties.

We have a slight disagreement as to directions that we would seek from the court. There are two slight matters that we need not trouble your Honour with concerning the directions. Perhaps I could leave that to my learned friend.

HIS HONOUR: Yes, thank you, Mr Ginnane. Mr Graham.

MR GRAHAM: Your Honour, my learned friend is quite correct in saying that the case stated is now in a form to which all parties consent. Your Honour has the revised version.

HIS HONOUR: Well then I will state the case in the amended form.

MR GRAHAM: If your Honour pleases. There is one very minor procedural step which needs to be taken. I rather hesitate to trouble your Honour with it. The State of Victoria in its action needs leave to deliver an amended statement of claim. In fact a statement of claim was in an amended form was delivered to the Commonwealth in January and now some rather technical argument has arisen as to whether we had the right to deliver an amended statement of claim at that stage or not.

MR GINNANE: Again by consent, your Honour, we consent to such a course.

HIS HONOUR: And it will be the amended statement of the claim which will be appended to this.

MR GRAHAM: Yes, that is right.

HIS HONOUR: Well, I will give leave to the State of Victoria to amend its statement of claim.

MR GRAHAM: We will be giving your Honour two sets of minutes of order; one a minute dealing with the case stated itself in each of the three actions and the other minutes of a procedural kind to be made in each action. In the Victorian minutes in the second category we are seeking leave to amend the statement of claim and an order that the amended statement of claim already delivered stand as our amended statement of claim. That will cover the matter.

HIS HONOUR: I am not sure that I follow that.

MR GRAHAM: Well, it is a sort of thing that one remembers from days in front of the master, your Honour.

HIS HONOUR: Very well.

MR GRAHAM: And perhaps not very clearly. As to procedural matters, your Honour, there is a dispute between the parties about steps to be taken between now and the date of the hearing before the full court. We understand the cases will be heard on 30th and 31 May, that is a tentative fixture or a preliminary fixture that has been given to the matters. We have on both sides worked out timetables that are assuming that those dates will be the actual dates for hearing. Now, for our part, we are content with directions being given that there be exchange between the parties, not full written submissions but something perhaps slightly less than that which we have endeavoured to describe by using the description "full outline of argument."

For its part the Commonwealth says there should be an exchange of full written submissions in advance of the hearing. Now, ultimately we are in the hands of the court as to which course is more convenient but I am bound to say that in my recent experience the use of full written submissions has not been entirely helpful and it does tend to inhibit the presentation of oral argument to some extent. So we thought that perhaps a middle course might be chosen as between the mere skeleton outline of argument, the three page outline that was referred to in the practice direction and full written argument which presumably would have to cover everything. And so we suggested a full outline be exchange by each party which would enable the court to become fully acquainted with the framework of the argument without inhibiting the parties in the presentation of oral argument.

HIS HONOUR: We seem to be setting out on an American course, do we not, somewhat?

MR GRAHAM: Yes.

HIS HONOUR: Whether the three page outline of argument was designed to be merely a synopsis and the rule that it was only to be delivered at the commencement of argument was designed to ensure that it was actually counsel's argument and not something that was prepared in a solicitor's office

and which would bear no resemblance to what counsel actually said.

MR GRAHAM: Yes.

HIS HONOUR: We have moved away from that a little but the suggestion that complete submissions should be exchanged is going the whole distance is it not?

MR GRAHAM: Yes. Well, your Honour, whether one chooses the expression full outline of argument or simply written submissions we would not be troubled, but we are concerned by the notion of full written submissions.

HIS HONOUR: Yes.

MR GRAHAM: Because it really does seem to have an inhibiting effect. That is one matter upon which we are not agreed, the other matter is as to the timetable. I am sorry to say we are arguing about a week because Easter intervenes in this period and we had proposed that we should deliver our material by 13 April but the Commonwealth says: no, we should provide it by the 6th and so, we are left in the position of asking your Honour's direction in that regard.

HIS HONOUR: There is no way of compromising, is there?

MR GRAHAM: Probably your Honour one wishes to do that, perhaps the intervening Monday or Tuesday might be chosen. I think that my friend is concerned by the fact that the Thursday the 13th is the last working day before Easter and if they want an opportunity to distribute the material before Easter then we are content with a date that would enable that to be done. It could perhaps be the 11th. I would propose the 11th in lieu of the 13th or the 6th which are the competing dates.

HIS HONOUR: Why not the 10th, it is a Monday?

MR GRAHAM: Monday, yes, that would be satisfactory your Honour.

MR GINNANE: Yes, I think that could then become agreed your Honour.

HIS HONOUR: Well, that is resolved, yes.

MR GINNANE: And we are not really in any major degree apart on the submissions, your Honour. All we were concerned with is that unless there was an exchange of comprehensive - a comprehensive document which outlined all the issues to be raised in the way in which they were raised, the case may not finish in the time it was allocated because it does deal with the validity of many provisions of this act and we do not want anything to depend on the language that is chosen as long as the parties are agreed that the documents to be exchanged will outline fully all the points to be raised and how they are to be raised. That is really all - whether one uses the word full or comprehensive or written submissions really perhaps does not matter. The understanding that the parties have - - -

HIS HONOUR: Yes, I think Mr - the solicitor's concern is that if something - he desires to put something which he has not thought of by the time he has completed his full outline it may be suggested he cannot. I would have thought full outline of argument would cover the situation.

MR GINNANE: If it is understood in that situation we are not troubled by that, we certainly - - -

HIS HONOUR: I am not sure how full that means, that is from the court's point of view. I might say in the United States you are restricted to 60 pages with no appendages, whatever the case. If we are taking off on that course you might bear that in mind.

MR GINNANE: I - to suggest the word "comprehensive" your Honour so that it covers all the points that are to be raised.

HIS HONOUR: All right. Do you object to the word "comprehensive" Mr Solicitor?

MR GRAHAM: No, your Honour, I am quite content. Comprehensive outline of argument would be - perhaps now become a settled term of practice.

HIS HONOUR: Very well.

MR GINNANE: Your Honour, I think then they are the only matters that we need to trouble your Honour with. Could I just say one other thing? I took your Honour to that question in the South Australian case just to say something out of abundant caution about it. There is a similar question in the Western Australian's case and I would say the same thing about it.

HIS HONOUR: Well, it will be on the transcript, Mr Ginnane.

MR GINNANE: Yes, if your Honour pleases.

MR GRAHAM: Could I hand to your Honour minutes of orders to be made in these matters now it would seem by consent. Firstly, draft minutes in each matter relating to the case stated and then procedural directions. These are the procedural directions which have been amended in handwriting.

HIS HONOUR: Yes, I see how you have overcome the problem that I was referring to.

MR GRAHAM: Yes.

HIS HONOUR: Yes, well I make orders in that form.

MR GRAHAM: May it please your Honour. It is still necessary I think in this court to seek a certificate for counsel in chambers.

HIS HONOUR: I certify.

MR GRAHAM: And would your Honour reserve the cost of today's hearing.

HIS HONOUR: And I reserve costs.

MR GRAHAM: If your Honour pleases.

HIS HONOUR: Very well.

AT 9.47 AM THE MATTER WAS ADJOURNED

INDEFINITELY