Durham Holdings Pty Ltd v The State of New South Wales S155/1999 [2000] HCATrans 73 (10 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S155 of 1999

B e t w e e n -

DURHAM HOLDINGS PTY LTD

Applicant

and

THE STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2000, AT 11.43 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR G.D. de Q WALKER, for the applicant. (instructed by Allen Allen & Hemsley)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR S.J. GAGELER, for the respondent. (instructed by I.V. Knight, Crown Solicitor for New South Wales).

McHUGH J: Yes, Mr Jackson.

MR JACKSON: Your Honour, as is apparent from the written submissions, the case seeks to agitate two issues. They are - - -

McHUGH J: We have read the material. Mr Jackson, subject to hearing what Mr Sexton has to say, we thought that the appropriate course in this particular case might be to refer it to a Full Court as a special leave application but to be argued as if it was an appeal.

MR JACKSON: We would be content with that course, your Honour.

McHUGH J: I am sure you would. Mr Solicitor?

MR SEXTON: Well, your Honour has seen our submissions.

McHUGH J: Yes. Well, it does raise at least one point that has been running around in the books for some time. It is an important question. Whether it has substantial prospects of success may be another matter but it is probably a matter that is better dealt with by the Court as a whole rather than be dealt with by two or three Judges.

MR SEXTON: Did your Honour intend by that to include both the points that are raised by my learned friend.

McHUGH J: Yes, they may as well both be dealt with by the Court.

MR SEXTON: Well, your Honour, one of them is, in a sense, a construction point and we would say not a very close point of construction. I assume that your Honour refers in "the other point" to the question of, in a sense, the powers of the State legislature.

McHUGH J: Yes. Once we have decided to send the first matter, I think it is - and the Court, as a whole, might take the view that it is not a special leave point and quickly chop it out but I think it is better for the whole Court deal with the matter as opposed to two of us dealing with one aspect of it and the rest of the Court dealing with another aspect of it.

MR SEXTON: I understand what your Honour says.

McHUGH J: Thank you, Mr Solicitor.

The order of the Court is that this matter be heard by all members of the Court in Canberra and it to be argued as if it was an appeal.

AT 11.48 AM THE MATTER WAS CONCLUDED