Commonwealth of Australia v Brandon S35/1996 [1996] HCATrans 388 (1 October 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S33 of 1996

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

ROBERT JOHN MEWETT

Respondent

Office of the Registry

Sydney No S34 of 1996

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

MICHAEL JOHN ROCK

Respondent

Office of the Registry

Sydney No S35 of 1996

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

MARK JOHN BRANDON

Respondent

Directions Hearing

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 OCTOBER 1996, AT 11.44 AM

Copyright in the High Court of Australia

_________________________

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If your Honour pleases, I appear with my learned friend, MR C.R. STAKER, for the Commonwealth in each of these actions. I can say between a rock and a hard place, your Honour. I am not sure of that, your Honour, but - - -(instructed by the Australian Government Solicitor)

HER HONOUR: And you have not yet gathered any support to your side?

MR GRIFFITH: Well, we do not need it, your Honour. We have served notices, your Honour.

HER HONOUR: Yes, thank you.

MR M.L. BRABAZON: May it please the Court, I appear with my learned friend, MR M.A. ROBINSON, for the respondent in each of those three cases. (instructed by Szekely & Associates)

HER HONOUR: Yes, thank you, Mr Brabazon.

MR GRIFFITH: Your Honour, we are not quite sure what there is to do, because I think it is accepted by the parties in each matter, and at the Commonwealth's expense, your Honour, that there now is an extra issue to be argued. But would your Honour seem to be subsumed in the issues before the Court on the present notices of appeal, because, as your Honour pointed out to me after my first sentence, I think, your Honour, of submissions, that there is an anterior issue which now the parties are agreed is to be argued, and I do not think we feel there is any need to have directions about it, your Honour, other than to raise the possibility that the matter having already, as it were, had one shot in the Full Court, the Court might be assisted if there were written submissions.

HER HONOUR: Yes. Are the parties agreed as to the time that is likely to be taken?

MR GRIFFITH: Well, your Honour, I do not think - we have not even discussed it, but I would have thought it would be a day, your Honour. We were intending it to be a half-day case, we thought, on the issues as we stood up to plead them. Your Honour, if written submissions were ordered, well then, I would have thought it would still be a day, unless we do garner some interventions which we have not yet. But, your Honour, all States except New South Wales and Victoria have indicated they would not intervene. The other two States - those two have not indicated their position yet.

HER HONOUR: How long do you think the matter would take, Mr Brabazon?

MR BRABAZON: Your Honour, we would estimate a day, depending on the Court's attitude to our friend's application to reargue Georgiadis. That is the only prospect we see for the matter spilling over to be longer than a day.

HER HONOUR: Yes. Well, that will require leave, in any event, will it not? Yes.

MR GRIFFITH: Yes, your Honour, although we are not quite sure, nowadays, when one applies for leave on the basis that a decision is wrong, the extent to which the argument is not so intertwined, one does not give the complete argument, your Honour.

HER HONOUR: Yes. Well, on the assumption that the matter will finish within a day, or not much longer than a day, it can go into the December lists. Is that convenient?

MR GRIFFITH: It might depend on whether your Honour intends to order written submissions.

HER HONOUR: That would not prevent it going into the December list, would it?

MR GRIFFITH: Well, your Honour, just we would have to prepare the submissionsand file them and the question which side goes first - I suppose we go first - I suppose, your Honour, what I have in the back of my mind; we have got Cigamatic on in December, your Honour, so that that diverts one.

HER HONOUR: You would prefer February?

MR GRIFFITH: Yes, your Honour, we would.

HER HONOUR: Yes. And, Mr Brabazon, what - - -

MR BRABAZON: Your Honour, from our point of view, the days which Mr Wheelahan, who leads us, is available in December only the 11th and 12th. Apart from that, we would like to get the action on as early as it can be. We have no objection to February.

HER HONOUR: Yes. Well, I think if Mr Wheelahan's availability is limited, and it will in any event be a question of squeezing it in in December, as it were, it is probably preferable to go to February.

MR BRABAZON: If your Honour please.

HER HONOUR: Yes. Perhaps I should ask Mr Solicitor: in terms of written submissions, could you put written submissions in by early January?

MR GRIFFITH: Yes, your Honour, we could do that. Your Honour, I have consulted Mr Gageler and Mr Kennett while I was sitting down. We would not want to be held to a warranty for one day.

HER HONOUR: No, I understand. So, one day, plus?

MR GRIFFITH: A day and a half, perhaps, your Honour, could be thought of as a possibility. Yes, we certainly - early January - it would be 13 December, your Honour.

HER HONOUR: Yes. Well, when can you have them in by?

MR GRIFFITH: December 13, your Honour.

HER HONOUR: You will?

MR GRIFFITH: Yes.

HER HONOUR: The written submissions?

MR GRIFFITH: Yes.

HER HONOUR: Very well. Thank you. When could you reply to them, Mr Brabazon?

MR BRABAZON: Your Honour, perhaps a month after that.

HER HONOUR: January 13?

MR BRABAZON: Your Honour, I should not commit myself to such a dangerous date.

HER HONOUR: It will have to be some time around then.

MR BRABAZON: Yes, and given the - would your Honour excuse me?

HER HONOUR: Yes.

MR BRABAZON: Your Honour, there does not seem to be much choice but to take a date such as 13 January.

HER HONOUR: Yes. Was your objection to the 13th or to the middle of January?

MR BRABAZON: To the middle of January, your Honour.

HER HONOUR: To the middle of January. Yes, I do not think there is much choice. We could make it, I suppose - well, certainly you could go to 20 January, could you not?

MR BRABAZON: From our point of view, yes, your Honour.

HER HONOUR: Yes, with any submissions in reply by the 27th?

MR GRIFFITH: I suppose so, your Honour, but, perhaps we could say if we have any, your Honour, we will give them to the other parties as soon as we could.

HER HONOUR: Yes.

MR GRIFFITH: I do not know whether there is much function in submissions in reply being ordered at that stage.

HER HONOUR: No, well, if there are any written submissions in reply.

MR GRIFFITH: Your Honour, we will certainly have some to make on the day.

HER HONOUR: Yes, but if there are any written submissions in reply they can be made available, but I will certainly at this stage simply order written submissions from the Commonwealth by 13 December and from the respondents to the appeal by 20 January, and if there are any supplementary written submissions to be exchanged between the parties as soon thereafter as possible. I think there is nothing else to be done, is there? The Court will now adjourn.

AT 11.51 AM THE MATTER WAS ADJOURNED