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High Court of Australia Transcripts |
Last Updated: 26 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 for directions
GUMMOW J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 20 AUGUST 2004, AT 9.37 AM
Copyright in the High Court of Australia
__________________
MR S.J. GAGELER, SC: If it pleases, I
appear with MR J.K. KIRK for the plaintiffs.
(instructed by Maurice Blackburn Cashman)
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 M.J. LEEMING, for the second defendant. (instructed by Crown Solicitor for New South Wales)
MR J. BASTEN, QC: I appear for the applicants on the motion to intervene, your Honour. (instructed by Public Interest Advocacy Centre)
MR GAGELER: Your Honour will have seen our proposal.
HIS HONOUR: Yes. Have your opponents?
MR GAGELER: Yes, but I do not know what their response is.
HIS HONOUR: Can I just say this, Mr Gageler. Looking at the draft stated case paragraph 2, I see from 2(c) the second plaintiff carries on business in Queensland as well as Victoria and New South Wales. Does anything turn on the Queensland element?
MR GAGELER: No, your Honour.
HIS HONOUR: There is reference to the Legal Profession legislation in New South Wales and Victoria but not Queensland.
MR GAGELER: No, the only real relevance of Victoria is that is where it is pleaded that the server for the website is located.
HIS HONOUR: Yes. Throughout the draft stated case there are references to annexures to the statement of claim. The statement of claim will not actually be part of the stated case, will it?
MR GAGELER: I was simply seeking a method that would minimise the paper before the Court. Usually I think the pleadings go up before the Court in the question reserved book. If that is not to be the case, then that would be annexed to this document.
HIS HONOUR: I think it would be better to annex them to the stated case. It just avoids anyone taking any point of any sort.
MR GAGELER: There is a typographical error in paragraph 7, page 4, your Honour. It should be the “First Plaintiff”, not the “First Defendant”.
HIS HONOUR: Yes.
MR GAGELER: We do not know what the first defendant wants to do because he has chosen to submit.
HIS HONOUR: Yes, thank you. I will see what the State’s attitude is.
MR SEXTON: Your Honour, just one minor matter. I no longer appear for the Attorney-General now – that will be formalised – but just for the State of New South Wales.
HIS HONOUR: Right.
MR SEXTON: Your Honour, I have not had a chance to talk to my learned friend this morning and I have told him why, but can I say what our objection is to it proceeding in precisely this way. In our submission, the regulation deals quite specifically with the subject matter of the publications that it prohibits and, by reason of the definition in the regulation of barrister and solicitor which goes on to other definitions in the legislation proper, the extent of the operation of the regulation, we would say, is readily apparent.
HIS HONOUR: Readily apparent in what sense?
MR SEXTON: In relation to, for example, section 92 and the extraterritoriality questions.
HIS HONOUR: I was wondering about that. Does the mutual recognition of admission legislation have any operation in this area, particularly on the territorial point that you have just mentioned?
MR SEXTON: Under the legislation, one ultimately reaches a person called an interstate legal practitioner who fits within the definition of a barrister or solicitor. That is a person who has an entitlement to practise in New South Wales which I think in most cases now comes from a form of mutual recognition but not under that legislation and sometimes still has to be obtained in other ways, but it is a person who, in other words, is carrying on business in New South Wales, even though they may be, of course, carrying on business, and presumably are, in some other jurisdiction as well.
HIS HONOUR: So you say it has no impact relevantly for this - - -
MR SEXTON: We will say that, but what we say for these purposes, your Honour, is that both the Lange questions and those questions that depend, if they depend at all, on boundaries can be dealt with by way of questions that are posed to the Court. We do not see any need therefore to consider the publications that are annexed to the amended statement of claim, some of which have never been published and none have been published during the currency of the regulation, unless perhaps that excludes the website.
HIS HONOUR: It may go to relief though, may it not?
MR SEXTON: Your Honour, none of them are the subject of any kind of action, nor have they been.
HIS HONOUR: No. I mean, in Croome v Tasmania we had the lease.
MR SEXTON: That is right, your Honour.
HIS HONOUR: There was no present attempt to forfeit the lease by reason of the activities of the lessee.
MR SEXTON: I appreciate that, your Honour.
HIS HONOUR: Nevertheless, it was seen as relevant because of the relief that was being sought. It was not really moot.
MR SEXTON: But in this case, your Honour, there might be, obviously, thousands of advertisements in different forms that could be made under this regulation. It does not seem to us to be useful to just look at a handful of those when, in fact, questions could quite specifically decide the issues that are relevant for the Court. If the validity of the regulation is upheld, for example, or if it is struck down completely, then the examples in the form of those advertisements do not have any relevance. But even if the regulation were upheld - - -
HIS HONOUR: It may have to be read down in some ways. It is best read down by reference to some specific yardstick tendered in the materials.
MR SEXTON: But these are only examples, your Honour, and, as it happens, ones that have not been the subject of any action. It seems to us an unlikely result that the regulation would, in fact, be upheld in part only – in other words, that it would probably go completely or not at all. But even if one does have that result, any particular advertisement would simply give rise then to a question of construction as to whether it fell within what remains. At any rate, it seems to us that this method of proceeding really is not necessary and that this case can be decided by a series of questions, given the fact that the regulation - - -
HIS HONOUR: But present it to the Full Court in what form? Questions presented how?
MR SEXTON: In the form of questions to be answered.
HIS HONOUR: Yes, but my colleagues are going to say – I might say – it has to be anchored; it cannot be a balloon.
MR SEXTON: No, but their anchor here is the regulation, your Honour.
HIS HONOUR: Yes, but the question is whether there is a matter sufficiently imperilling Mr Gageler to give him standing, amongst other things.
MR SEXTON: There is no problem about the special case, your Honour, or about standing. From our point of view, it is only the hypothetical advertisements; that is all. We do not see that it adds to the exercise.
HIS HONOUR: So, in other words – can you just look at the draft for a minute. There are italicised portions in the draft at paragraph 7, as we have seen, 8, 9, 14 and 15. Is the objection to that?
MR SEXTON: It is those paragraphs that run from 7 through to 15 really which deal with the material that is annexed to the amended statement of claim.
HIS HONOUR: Yes. But as a matter of fact does your side challenge the existence or reality of these intentions or wishes of the plaintiffs to conduct themselves in this way?
MR SEXTON: We do not dispute that in a general way obviously the plaintiffs wish to advertise in a way that may, seemingly, contravene the regulation.
HIS HONOUR: Yes.
MR SEXTON: But because the regulation identifies the material that would contravene the regulation, we say that it is not necessary to look at isolated examples.
HIS HONOUR: I would have thought at the moment that they would be entitled to get it on the record against the contingency that at the end of the day the Court answers question 2. It seems to me that the judicial process is best directed to some specific issue in the form of a question like question 2. I may be wrong about that. It will be crystallised if they published and were prosecuted. There is a sanction to this, is there not?
MR SEXTON: Yes, your Honour.
HIS HONOUR: It is in everyone’s interests that they do not have to publish and be prosecuted.
MR SEXTON: But, in our submission, your Honour, question 1 will determine all that for my learned friend’s clients.
HIS
HONOUR: You may be right, but you may be wrong. I have to ensure, if I
can, that there is a wide enough permissible umbrella under which
these issues
can be contested. Anyhow, I will see what Mr Gageler says. Yes,
Mr Gageler.
MR GAGELER: Your Honour, this is
Toowoomba Foundry or any number of cases leading up to Croome v
Tasmania. This is what my clients want to do. These are concrete factual
matters and they wish to ensure that their intended activity does
not contravene
valid law. I mean, this is a stock standard constitutional technique. The
technique of putting before the Court
intended advertisements, for example, can
be seen in Davis v The Commonwealth. That is precisely what the
plaintiffs in that case came to the Court saying they wanted to
do.
HIS HONOUR: Yes, that is right.
MR GAGELER: They had a judicial determination in respect of that intended conduct. It happens regularly enough. There is nothing unorthodox - - -
HIS HONOUR: It had not got to the stage where they had used the logos and were being prosecuted.
MR GAGELER: No. There is any number of cases that say you do not have to get that point. That is the whole virtue of the declaratory judgments.
HIS HONOUR: Yes.
MR GAGELER: Beyond that, your Honour, the issues of fact, if they are real issues, are minimal. If we need to, we can have a 10-minute trial.
HIS HONOUR: Yes.
MR GAGELER: We were concerned about the manner in which it goes before the Court because on one view there is a difference between a case stated and a question reserved, even though section 18 covers both.
HIS HONOUR: Yes, there is.
MR GAGELER: We were concerned that the Court be able to draw inferences, particularly when one comes to the constitutional fact area. Our learned friends want to put some documents before the Court and no doubt we will and we will be asking the Court to draw inferences from those documents.
HIS HONOUR: Yes. Mr Solicitor, I would be
myself minded to proceed along the lines of this draft special case. Do you
want to consider your
position in the light of that information?
MR
SEXTON: We need a chance to look at that, your Honour, not very long.
There are still some matters to be resolved. My learned friend’s
documents – we are not complaining – he has not specified
those yet, of course.
HIS HONOUR: Yes. You have specified yours, I see.
MR SEXTON: Yes.
HIS HONOUR: At the moment we have two days set aside, 5 and 6 October, as you know. It is in everyone’s interests that that be retained.
MR SEXTON: I do not think there is a problem about that, your Honour.
HIS HONOUR: Should I stand it over for a week? I am in Canberra for two weeks after that.
MR SEXTON: Yes, it is satisfactory for us.
HIS HONOUR: Is that satisfactory for you, Mr Gageler?
MR GAGELER: Yes, your Honour.
HIS HONOUR: The 26th or the 27th? Do either of you have a preference?
MR GAGELER: I would have a slight preference for the 26th.
HIS HONOUR: What about you, Mr Solicitor?
MR SEXTON: I think that is satisfactory.
HIS HONOUR: I had better see what
Mr Basten’s involvement is at the moment.
MR BASTEN:
Minimal, your Honour. It is just that we have formulated our
application to be heard. That will no doubt be dealt with on the
5th.
HIS HONOUR: Yes, it will.
MR BASTEN: But the only question we have of concern is whether, if there are directions in relation to submissions, we would be included in those.
HIS HONOUR: Yes, I will make them next Thursday if we have sorted this matter out next Thursday. Will you be able to get your documents collected by then?
MR GAGELER: Yes, your Honour. One difficulty we have is just in locating our learned friends’ documents. The first one is a ministerial statement said to have been made in the Legislative Assembly on 14 February 2003. Parliament did not sit that day.
MR SEXTON: Obviously the electronic print-out, your Honour, the date does not bear any relation to the Parliament. I think we will find out for you when the Parliament sat.
HIS HONOUR: I think you had better co-operate about this. All right. I will stand the matter over to 9.30 am on Thursday, 26 August 2004 and costs of today will be costs in the proceeding. Is there anything else?
MR GAGELER: No, your Honour.
MR SEXTON: No, your Honour.
HIS HONOUR: Thank you, gentlemen. I will now adjourn.
AT
9.54 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 26 AUGUST
2004
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