Combet & Anor v Commonwealth of Australia & Ors [2005] HCATrans 608 (15 August 2005)

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Combet & Anor v Commonwealth of Australia & Ors [2005] HCATrans 608 (15 August 2005)

Last Updated: 19 August 2005

[2005] HCATrans 608

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S359 of 2005

B e t w e e n -

GREG COMBET

First Plaintiff

NICOLA ROXON MP

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

THE HONOURABLE KEVIN ANDREWS MP

Second Defendant

SENATOR THE HONOURABLE NICHOLAS MINCHIN

Third Defendant

For directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 15 AUGUST 2005, AT 11.57 AM

(Continued from 12/8/05)

Copyright in the High Court of Australia

__________________

MR S.J. GAGELER, SC: If your Honour pleases, I continue to appear with MR J.K. KIRK for the plaintiffs. (instructed by Maurice Blackburn Cashman)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: I continue to appear with MR S.B. LLOYD, and MS K.J. GRAHAM. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, Mr Solicitor.

MR BENNETT: Your Honour, my learned friend and I have been having some discussions. We have come to the conclusion that a special case is the best way to proceed. We are negotiating over the form of it and we think, given another hour or two, we will have that finalised and we have a joint application that your Honour stand the matter down to some time late in the afternoon convenient to your Honour, perhaps around 4 o’clock.

HIS HONOUR: Or tomorrow morning? Would that be better? I think it might be more realistic. Is that inconvenient for you - - -

MR BENNETT: I will be in Canberra.

HIS HONOUR: Mr Lloyd has very broad shoulders.

MR BENNETT: Yes, the only problem is if we do not agree, but if we do not agree it will probably be a question of amended defence and demurrer - - -

HIS HONOUR: That is right, yes. Is there any possibility, if you do agree, of a document being ready for tomorrow morning?

MR BENNETT: We would think so. We would hope so, your Honour.

HIS HONOUR: There may be some question of compiling annexures and so on, I suppose.

MR BENNETT: Yes, that may take some time but we would try and have the whole document ready by tomorrow morning.

HIS HONOUR: Yes, that is right. I do not have to sign it under the new Rules. It is the parties who sign it, I am pleased to say – rule 27.08 – and they should look at it, I think, just to satisfy my colleagues I am not foisting them with something they will regret.

MR BENNETT: Yes, and we are hoping that the matter should be able to be completed in a day before the Full Court.

HIS HONOUR: Yes, that is the assumption. Any more information about interveners?

MR BENNETT: I think we were told on the last occasion Western Australia was considering it. We have not heard - - -

HIS HONOUR: Yes, we have not heard anything either of a concrete nature.

MR BENNETT: No. I do not think it is appropriate to ask this question, but I ask it and if it is inappropriate to answer it no doubt your Honour will not answer it. Is it proposed that the matter be heard by a Full Court of six Justices?

HIS HONOUR: We are hoping for seven. Now, that makes it critical to keep that date.

MR BENNETT: Yes, I understand.

HIS HONOUR: You understand why.

MR BENNETT: Yes, of course, if your Honour pleases.

HIS HONOUR: Yes, Mr Gageler.

MR GAGELER: Your Honour, I think it unrealistic that even by tomorrow morning all of the annexures will be assembled.

HIS HONOUR: Yes.

MR GAGELER: I think it realistic that agreement in principle, if it is going to be reached, will be reached today. The difficulty with these things if we set a date further in the future it will take that time to - - -

HIS HONOUR: Can I leave it with you but that counsel contact my associate? I do not want it to drift off though.

MR GAGELER: If your Honour were to set a time later this afternoon, I am sure that we could report as to agreement in principle or not and show your Honour the draft document.

HIS HONOUR: Yes, I have been around too long – I would prefer to do it tomorrow. Any time tomorrow? What time would suit you tomorrow, Mr Lloyd and Mr Gageler?

MR GAGELER: I am in severe difficulty tomorrow, your Honour. If it was early in the morning, I could do it.

MR BENNETT: Mr Lloyd is not in Court, your Honour. I will be in Canberra tomorrow. Mr Lloyd will be available.

HIS HONOUR: Well, what time, Mr Gageler?

MR GAGELER: If your Honour was to make it 9 o’clock, I could be here, otherwise Mr Kirk - - -

HIS HONOUR: 9.00 am?

MR GAGELER: Yes.

HIS HONOUR: All right. Some documentation can be got in hand overnight then probably.

MR GAGELER: And provided to your Honour’s associate - - -

HIS HONOUR: If possible, but I am perfectly happy to just see it as it comes. I understand that it will not be possible to get the annexures ready. There is no need for me to see them probably. They will be identified in the document, I guess, and then both sides can liaise with the Registrar as to the printing of the books. I will adjourn until 9.00 am tomorrow morning.

AT 12.01 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 16 AUGUST 2005