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High Court of Australia Transcripts |
Last Updated: 5 August 2004
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Sydney No S202 of 2004
B e t w e e n -
APLA LIMITED
First Plaintiff
MAURICE BLACKBURN CASHMAN PTY LTD
Second Plaintiff
ROBERT LESLIE WHYBURN
Third Plaintiff
and
LEGAL SERVICES COMMISSIONER OF NEW SOUTH WALES
First Defendant
STATE OF NEW SOUTH WALES
Second Defendant
Summons
GUMMOW J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 30 JULY 2004, AT 9.35 AM
Copyright in the High Court of Australia
__________________
MR S.J. GAGELER, SC: If your Honour pleases, I appear for the plaintiffs. (instructed by Maurice Blackburn Cashman)
MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If your Honour pleases, I appear with my learned friend, MR M.J. LEEMING, for the defendant and the State of New South Wales. (instructed by Crown Solicitor’s Office (New South Wales))
HIS HONOUR: It is your summons, is it not, Mr Solicitor?
MR SEXTON: It is, your Honour.
HIS HONOUR: It is a summons filed 27 July. I had better see what Mr Basten is here for.
MR J. BASTEN, QC: I am not sure if I am appearing, your Honour, but my instructing solicitor acts for the Combined Community Legal Centres group, who are affected by the regulation and have indicated to the parties that they will seek leave to intervene in the proceedings in an appropriate time. I am really only here to indicate that if there are any directions the Court gives which would apply to us, then we will abide by them.
HIS HONOUR: Yes, thank you. Yes, Mr Solicitor.
MR SEXTON: If the Court pleases. Did your Honour receive some - - -
HIS HONOUR: Yes, I have.
MR SEXTON: My learned friend filed some - - -
HIS HONOUR: Perhaps before we get into that, there are a couple of questions I would like to ask Mr Gageler. From the statement of claim, there is reliance placed on section 92 and Lange.
MR GAGELER: Yes.
HIS HONOUR: Which branch of section 92, so to speak?
MR GAGELER: The intercourse branch of section 92.
HIS HONOUR: Hence you see yourself as not getting involved in discrimination arguments?
MR GAGELER: Correct.
HIS HONOUR: In other words, you are outside Cole v Whitfield, is that right?
MR GAGELER: Outside the detail of Cole v Whitfield, yes. I think there is a case called AMS, or something like that, and certainly Cunliffe is a closer case to the present.
HIS HONOUR: Yes, well, AMS was certainly not a commercial case. It was mother and child.
MR GAGELER: No, but Cunliffe was, and that was sufficient to get within the intercourse limb. Of course, the intercourse argument was unsuccessful in that case.
HIS HONOUR: There may be a big question lurking in there, I think.
MR GAGELER: Yes, we accept that.
HIS HONOUR: All right. Just before we leave that, on one might call the first branch of section 92, the traditional branch of 92, there are a lot of cases that might bear looking at again as to when interstate communications are and are not part of interstate trade and commerce. There are the lottery cases in 61 and 62 CLR. There is the Hospital - - -
MR GAGELER: Provident Fund?
HIS HONOUR: Provident Fund Case, yes[1953] HCA 8; , (1953) 87 CLR 1. There is Justice Kitto’s judgment in the original jurisdiction in Williams [1953] HCA 93; (1953) 89 CLR 66, particularly at page 74. The lottery cases include Mansell v Beck [1956] HCA 70; (1956) 95 CLR 550. Some of them talk indifferently about intercourse and interstate trade. They may have some significance for - - -
MR GAGELER: Your Honour, we had not seen the two categories as mutually exclusive, in the sense that the one activity could fall in either - - -
HIS HONOUR: You may be right, but I am just - - -
MR GAGELER: That is the way in which we would seek to put the case. It may have a commercial flavour, there may be commercial intercourse, but it is nevertheless intercourse.
HIS HONOUR: Yes, all right. On the second branch of the case, the Lange Case, it has never yet been actually decided as to who has to shoulder this burden of reasonable adaptation, has it?
MR GAGELER: I was giving anxious consideration to that in the last day or two and I think the answer is no. The American First Amendment cases would suggest that it is for the State instrumentality, that is, the party with an interest in defending the law, to both identify the purpose and justify the regulation as being sufficiently related to the purpose. I looked again at Castlemaine Tooheys, which I think has given the most careful consideration to this question, and I did not find an answer in it.
HIS HONOUR: No. It might be because some of those cases have come up by agreed facts, I think.
MR GAGELER: Yes, but the nature of the agreed facts in Castlemaine Tooheys, of course, was quite detailed. In other cases, however – Cunliffe is a very good example – they were very vague, much vaguer than our pleading.
HIS HONOUR: Yes. All right, thank you. Yes,
Mr Solicitor. I have read your helpful written submissions dated
30 July. Subject to what Mr Gageler
says, it seems to me the State
should be joined as a defendant. It is in Mr Gageler’s interest to
have the State bound anyway,
by a declaration, I would have thought. So as to
preserve the position, I would add the State as the second defendant and retain
the Legal Services Commissioner as the first defendant. You would be appearing
for both, I take it?
MR SEXTON: I would assume so,
your Honour.
HIS HONOUR: I would imagine their interests would coincide.
MR SEXTON: Yes. I have not got any formal position at the moment, but I am assuming that that will be so.
HIS HONOUR: Yes. It does then seem to me that this question that I have just been discussing with Mr Gageler as to reasonable adaptation in Lange and burden and so on, in order to get it in a safe form, does require pleading, I would have thought, and the opportunity for pleading, I guess, on your part. You can demur and plead under our Rules, and if you were of the view that it would be for him to negative in the first place, I guess you could demur and you can also protect yourself by pleading. That would entail, at any rate, the withdrawal of the demurrer in its present form, which is an absolute demurrer. Now, there is some brooding debate about costs, is there, some argument was reached?
MR SEXTON: There is, your Honour. Your Honour will see that in the last paragraph of our submissions we have tried to have that issue quarantined just for the moment, in the sense that my learned friend’s concern in relation to the joining of the State was involved in that issue, but if the Legal Services Commissioner is left as the first defendant, then the question of what finally happens to that dispute does not have to be resolved this morning, in my submission.
HIS HONOUR: Yes, I understand. Now, Chief Justice - - -
MR SEXTON: I am sorry, your Honour, just while your Honour has the diary there, I meant to raise the question that it seemed to us perhaps unsafe to have this set down only for one day. We would anticipate that most of the States would want to intervene and the Commonwealth.
HIS HONOUR: Yes, thank you. I was going to ask you both, do you know of any other State legislation comparable to this in this particular field of legal services regulation?
MR SEXTON: I do not think there is anything in this blanket form at any rate, your Honour, but, having said that, particularly in relation to the constitutional issues, I think it can be assumed that several of the States and the Commonwealth will intervene.
HIS HONOUR: Yes, I think that is right. You had been given a tentative date, had you not?
MR SEXTON: Yes, 6 October, which is, I think, a Wednesday.
HIS HONOUR: Yes. It looks as if it will run over to Thursday, the 7th.
MR SEXTON: I understand there is a case set down on the Thursday.
HIS HONOUR: Is there? Is there a case set down for the Tuesday?
MR SEXTON: I do not know, your Honour.
HIS HONOUR: I do not know either. Yes, well, I will convey that information, which I think is important. Just pardon me a moment. Yes, I think Thursday’s case may not be a full day, I would say. Yes. Is there anything else?
MR SEXTON: No, your Honour.
HIS HONOUR: So if pleadings were to be revised, should it then come back to me to see if there should be agreed facts?
MR SEXTON: We think so, your Honour, yes.
HIS HONOUR: Yes. How soon would you need to – well, I suppose Mr Gageler may want to revise his – I am not sure. Would you revise your statement of claim, or not?
MR GAGELER: Not in substance, your Honour, but at least in form.
HIS HONOUR: Yes, all right. How long would you need to do that?
MR GAGELER: We could do that within a few days, by next Wednesday.
HIS HONOUR: Yes, all right. I am just thinking when it should come back to me, that is all. How long would you need to put on your defence, or defence and demurrer?
MR SEXTON: Well, 10 days perhaps, your Honour. This process could probably be done in two weeks, with the two of us.
HIS HONOUR: Yes, so it could come back 20 August - Friday, 20 August at 9.30? Is that convenient?
MR SEXTON: Yes,
your Honour.
MR GAGELER: Yes, your Honour. Before
your Honour makes orders, may I return to the point dealt with at the tail
end of both of our written
submissions? I feel obliged to seek
your Honour’s leave to file and read an affidavit concerning the
issue of costs.
HIS HONOUR: Have you seen it, Mr Solicitor?
MR SEXTON: Yes, your Honour.
HIS HONOUR: “Gentlemen” have gone. They are now “gentle-persons”.
MR GAGELER: Exactly.
HIS HONOUR: Do people really say that at meetings?
MR GAGELER: That is exactly what was said, and it is taken very seriously. The difficulty we have is with our learned friend’s concession that if a legally binding agreement - - -
HIS HONOUR: Say that again?
MR GAGELER: Our learned friend’s written submissions in the last paragraph refer to – they say this, that if there is a legally binding agreement established between the existing parties, then - - -
HIS HONOUR: This would be an attractive issue to litigate.
MR GAGELER: It is not attractive at all, and I am pained to have to raise it before your Honour - - -
HIS HONOUR: Between these impoverished litigants.
MR GAGELER: - - - but it is a very practical consideration. Unless the State is prepared to honour the gentle entities’ agreement or gentle entities’ understanding, we would seek a condition of their joinder that they not seek costs in any event.
HIS HONOUR: Yes, all right. Well, this will probably come into
full bloom after we get the result eventually, when it comes back to a single
judge, I suspect. It is still an active debate. The affidavit of
Rebecca Gilsenan, affirmed by her on 29 July 2004, may be filed
in Court. I will indicate, gentlemen, what I propose to do and then ask you to
make any submissions.
MR SEXTON: I am sorry, just before
your Honour does that, your Honour will appreciate that ultimately we
may wish to file material - - -
HIS HONOUR: Yes, I do. All too well.
MR SEXTON: - - - in
relation to this, but we are not going to do it this morning.
HIS
HONOUR: This is what I propose, gentlemen. Upon the summons by the Legal
Services Commissioner of New South Wales filed on
27 July 2004:
1. Grant leave to the defendant to withdraw its demurrer filed 23 June 2004, and the same is now withdrawn;
2. Add as the second defendant the State of New South Wales;
3. Any amended statement of claim to be filed and served on or before 6 August 2004;
4. Defence and any demurrer to be filed and served on or before 17 August 2004;
5. Stand over the further hearing of the summons and directions application to 20 August 2004 at 9.30 am in Sydney;
6. Certify for counsel;
7. Costs of today to be costs of the summons.
Is there
anything else? Now, just before we finish, will there be evidentiary material
required for this, on either side, of any
complexity?
MR SEXTON: I think it is likely that we will put on some material. I do not think it will be extensive, your Honour, but going to that question of whether the legislation is reasonably adapted to a legitimate purpose.
HIS HONOUR: Yes. Mr Gageler would need to see that. When is that likely to assume some form in which it can be shown to the other side? By 17 August?
MR SEXTON: We will try and do that, your Honour, yes. As I mentioned in the submissions, it may be that some of the material could be taken notice of without being formally evidence, but we are not sure about that at the moment.
HIS HONOUR: Well, I will add to order 4, which is defence and demurrer by 17 August, “and draft outline of any evidentiary material”, so we know what we are talking about when it comes back. I do not think I need to make any order affecting that at this stage, Mr Basten.
MR BASTEN: No, your Honour.
HIS HONOUR: Very well. I make the orders and will now adjourn.
AT 9.57 AM THE MATTER WAS
ADJOURNED
UNTIL FRIDAY, 20 AUGUST 2004
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