Paliflex Pty Ltd v Chief Commissioner of State Revenue S145/2003 [2003] HCATrans 701 (28 April 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S145 of 2003

B e t w e e n -

PALIFLEX PTY LIMITED

Appellant

and

CHIEF COMMISSIONER OF STATE REVENUE

Respondent

Directions Hearing

Office of the Registry

Sydney No S121 of 2003

B e t w e e n -

SOUTH SYDNEY COUNCIL

Applicant

and

PALIFLEX PTY LIMITED

Respondent

Ex parte -

NEW SOUTH WALES ATTORNEY-GENERAL

Application for removal pursuant to section 40 of the Judiciary Act 1903

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 28 APRIL 2003, AT 2.52 PM

Copyright in the High Court of Australia

__________________

MR G.A. MOORE: If your Honour pleases, I appear for the respondent. (instructed by Brock Partners)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS J.A. QUILTER, for the Attorney-General. (instructed by Crown Solicitor for the State of New South Wales)

HIS HONOUR: Yes, Mr Solicitor, and you move under section 40 of the Judiciary Act 1993 for removal on your motion filed 4 April 2003?

MR SEXTON: That is correct, your Honour.

HIS HONOUR: What is the position of the South Sydney Council? Does anybody know?

MR SEXTON: My understanding is, your Honour, that they do not have any objection to the removal and that they had spoken with the Registry to say that they would not be represented today and they had filed a written summary of argument to that effect.

HIS HONOUR: Yes. On the further hearing of the matter, you would carry the burden of the argument, I would imagine.

MR SEXTON: That is so, your Honour.

HIS HONOUR: Yes.

MR SEXTON: I am sorry, your Honour, perhaps I should just say in relation to that last question, as your Honour is aware, there is the - - -

HIS HONOUR: I mean of the argument they would want to put.

MR SEXTON: Yes. At the moment I would envisage that I would be appearing for both the Commissioner for State Revenue in the other proceedings and for South Sydney in these proceedings.

HIS HONOUR: Right, thank you. Yes, I follow. Now, the structure of the Local Government Act is rather different, is it not, as to the binding of the Crown provisions? I have looked at section 4 and section 561. They are the provisions we are to focus on, I guess.

MR SEXTON: It does not seem to give rise to some of the construction arguments that were present in the Commissioner for State Revenue Case.

HIS HONOUR: All right. You do not oppose removal - well, you cannot very well, I think, Mr Moore.

MR MOORE: Your Honour, no, we do not. We see the reasons put forward by the Attorney and we would accept that they are proper reasons.

HIS HONOUR: Yes, all right. The question then would be, what would happen next once it gets here? It is purely a question of law with no factual dispute, is it not? So rather than state a case here, it might be appropriate under section 18 of the Judiciary Act 1903 for me just to direct that the case, being the appeal to the Supreme Court Common Law Division, be argued before the Full Court here.

MR SEXTON: Yes, your Honour.

HIS HONOUR: Does that seem sensible?

MR MOORE: Yes, your Honour.

MR SEXTON: And we are assuming, in an administrative sense, that it will be done at the same time as the other proceedings.

HIS HONOUR: That is right. The record would have to be put in some form for the Full Court. Do you both have copies of the Baker affidavit sworn 3 April? Perhaps we could go through that usefully now. That could be resworn in some form and that could serve as the backbone of the case book for the Full Court.

MR SEXTON: Yes, your Honour.

HIS HONOUR: So paragraph 2 of the affidavit, we would need that, I think. We would not need 3, because you are already here. Paragraphs 4, 5, 6 would be needed. Paragraphs 7, 8, 9, 10 and the first sentence of 11 - I do not think we would need any more of 11 - 12, then the first sentence of 13 - we would not need the second - 14, the first sentence of 15 - we would not need 16 - 17 we would need. We would not need 18, nor 19. We would need 20 and 21 is probably a useful statement to leave in. We would not need 22 or 23. We would need the order of removal and the order of referral, I suppose, as well and anything else that occurs to the parties. That would seem to me to provide the essentials for a book to go to the Full Court. Does that seem right, Mr Moore?

MR MOORE: Yes, your Honour.

HIS HONOUR: So then if I make an order pursuant to section 40(1) of the Judiciary Act (Cth) in terms of paragraph 1 of the motion filed 4 April 2003 but adding the words "Pty Limited" after "Paliflex" in line 3; (2) direct pursuant to section 18 of the Judiciary Act 1903 that the cause so removed be argued before the Full Court; (3) costs of the motion be costs of the cause in this Court; (4) direct that the cause so removed be listed with appeal S145 of 2003.

Then we just need to note that the estimate at the moment is a two-day hearing for the two of them together. I do not need to make any formal orders about the case referred book but it can follow what we have been talking about. You will be attending to - I suppose there has to be a round of 78B notices.

MR SEXTON: Yes, fresh ones. There have been some in the past, of course, your Honour, but there will be fresh ones.

HIS HONOUR: Yes. Now, there tends to be late responses to 78B notices which then disrupt your preparation of your case.

MR MOORE: Your Honour, we are very anxious, in both matters actually, that those intervening might put on their submissions, say, at least two weeks before the hearing so that the applicant in either case would have at least a week - - -

HIS HONOUR: Yes. I know the problem all too well. So I have added (5) any party wishing to intervene or to seek leave to intervene in either the cause or the appeal in response to notices under section 78B of the Judiciary Act do so with written outline of submissions to be filed not later than 21 days before the date to be fixed for the hearing of the cause and the appeal. That can be sent out then with the 78B notices. It might sharpen people up a bit.

MR SEXTON: Your Honour, there is one last matter. I am not sure how useful it is in the context of the Court's calendar but I wanted to make an oral application for expedition in the sense that if the Court of Appeal be right, there is a legislative vacuum, at least partially, in relation to many of these places.

HIS HONOUR: Yes.

MR MOORE: We have no difficulty with that, your Honour.

HIS HONOUR: The Chief Justice is already seized of that consideration and I will speak to him again about it. So:

(1) Order pursuant to section 40(1) of the Judiciary Act (Cth) in terms of paragraph 1 of the motion filed 4 April 2003 but adding the words "Pty Limited" after "Paliflex" in line 3;

(2) Direct pursuant to section 18 of the Judiciary Act that the cause so removed be argued before the Full Court;

(3) Costs of the motion be costs of the cause in this Court;

(4) Direct that this cause be listed with the appeal in appeal S145 of 2003;

(5) Direct any party wishing to intervene or to seek leave to intervene in either the cause removed or the appeal in response to notices under section 78B of the Judiciary Act do so on motion with written outline of submissions not later than 21 days before the date to be fixed for the hearing of the cause and the appeal.

Anything else?

MR MOORE: If the Court pleases.

HIS HONOUR: Very well. I will now adjourn.

AT 3.07 PM THE MATTER WAS CONCLUDED