State of New South Wales & Ors v Commonwealth (AKA Workplace Relations Challenge) [2006] HCATrans 126 (9 March 2006)

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State of New South Wales & Ors v Commonwealth (AKA Workplace Relations Challenge) [2006] HCATrans 126 (9 March 2006)

Last Updated: 4 May 2006

[2006] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S592 of 2005

B e t w e e n -

STATE OF NEW SOUTH WALES

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Perth No P66 of 2005

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Brisbane No B5 of 2006

B e t w e e n -

STATE OF QUEENSLAND

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Adelaide No A3 of 2006

B e t w e e n -

STATE OF SOUTH AUSTRALIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Brisbane No B6 of 2006

B e t w e e n -

AUSTRALIAN WORKERS UNION

First Plaintiff

AUSTRALIAN WORKERS UNION OF EMPLOYEES QUEENSLAND

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Sydney No S50 of 2006

B e t w e e n -

UNIONS NSW

First Plaintiff

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS’ ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES AND NEW SOUTH WALES LOCAL GOVERNMENT CLERICAL ADMINISTRATIVE ENERGY AIRLINES & UTILITIES UNION AND ELECTRICAL TRADES UNION OF AUSTRALIA NEW SOUTH WALES BRANCH AND NATIONAL UNION OF WORKERS NEW SOUTH WALES BRANCH AND NEW SOUTH WALES TEACHERS FEDERATION

Second Plaintiffs

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Melbourne No M21 of 2006

B e t w e e n -

STATE OF VICTORIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Summonses for direction

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 MARCH 2006, AT 9.31 AM

(Continued from 8/2/06)

Copyright in the High Court of Australia
MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear for the State of New South Wales and I appear today for the States of Western Australia and South Australia in the matters in which they are plaintiff and for the Attorney-General for Tasmania who intervenes in all the proceedings. (instructed by Crown Solicitor of New South Wales, State Solicitor for Western Australia, Crown Solicitor for South Australia and Solicitor-General of Tasmania)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MR H.C. BURMESTER, QC, for the defendant in each matter. (instructed by Australian Government Solicitor)

MR N. PERRAM: If it please the Court, I appear for the Unions New South Wales. (instructed by Jones Staff & Co)

MR W. SOFRONOFF, QC, Solicitor-General for the State of Queensland: May it please the Court, I appear for the State of Queensland with my learned friend, MR R.W. CAMPBELL. (instructed by Crown Solicitor for the State of Queensland)

MR G.C. McCARTHY: If it please the Court, I appear for the Attorney-General for the Australian Capital Territory. I also appear for the Attorney-General for the Northern Territory in each of the four matters intervening. (instructed by Australian Capital Territory Government Solicitor and Solicitor for the Northern Territory)

MS P.M. TATE, SC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MR M. BROMBERG, SC, for the State of Victoria. (instructed byVictorian Government Solicitor)

MR A.K. HERBERT: May it please the Court, I appear for the Australian Workers Union and the Australian Workers Union Employees Queensland in Matter B6 of 2006. (instructed by Sciacca’s Lawyers and Consultants)

HIS HONOUR: Mr McCarthy, your clients’ roles at the hearing will be that of intervener. Is that right?

MR McCARTHY: Indeed, your Honour.

HIS HONOUR: Thank you.

MR McCARTHY: Obviously I am mentioning the matter on behalf of the Attorney-General for the Northern Territory. I understand Mr Pauling, the Solicitor-General, will be appearing in the matter as intervener.

HIS HONOUR: Mr Solicitor for the Commonwealth, I wanted to ask a couple of questions about the form of the pleadings but they do not apply to the first case, which is the State of New South Wales v Commonwealth, in which you have simply demurred, I think.

MR BENNETT: Yes.

HIS HONOUR: Just limiting attention to that matter for the moment, what is the position in relation to any directions that need to be made in that matter?

MR BENNETT: Your Honour, we had rather assumed there would be an order made this morning that all matters be heard together and presumably any orders made would be orders affecting all matters.

HIS HONOUR: Let us start off with that question. Is there anybody who opposes the idea that all matters should be heard together? There is nothing about the individual matters that would make it inconvenient to hear them together, is there? All right, I will indicate that they will all be heard together.

MR BENNETT: Your Honour, these are cases which, in our respectful submission, will require some very case specific case management techniques because of the size of the matters, the number of counsel appearing and so on. I do not know if there is going to be any common representation of parties at the hearing. Assuming not, there will be 10 parties addressing the Court on the other side and that affects the directions to be given in relation to the conduct of the hearing.

Now, there are a number of issues between the parties. There is an issue about time for submissions. There is an issue about length of submissions and an issue about time for addresses, which is tied up with the question of order of addresses. If it is convenient, I could deal with those - - -

HIS HONOUR: Before we come to those issues, could I raise the matters about the pleadings that I wanted to raise. Let me put aside Victoria for one moment because, for obvious reasons, that is in a special or different category in terms of the pleadings. I do not think that the question that I am about to ask arises in the case of New South Wales, although it does arise in the case of Western Australia where you have pleaded and demurred and it arises in one or two of the other cases also.

Just let us look at Western Australia for a moment. I assume that the likely outcome of today’s hearing will be that the demurrers will be set down for hearing on the date in May that I contemplated earlier, but I want to be sure that there are no outstanding issues in relation to the facts or the pleadings. Now, you have pleaded, as well as demurred, to paragraph 44(b) of the statement of claim of the State of Western Australia and that is an allegation that I see in one or two of the other statements of claim also. In fact, I could go through and detail those now if you like.

MR BENNETT: Yes.

HIS HONOUR: I do not seem to see it in the South Australian statement of claim. I do not see it in the New South Wales statement of claim. I see it in paragraph 100(b) of the Queensland statement of claim. I see it in paragraph 136(b) of the AWU statement of claim and I do not see it in the Unions of New South Wales statement of claim. In each case it is an allegation that the provisions in question, which are some of the provisions of the statute:

will determine the terms and conditions of those of the employees who are persons at the higher levels of the government of a State.

Now, that is asserted. You have not admitted it and it may be that that is an allegation that was put in the pleadings to avoid surprise. These pleadings consist largely of arguments that are foreshadowed about the meaning of the legislation, about its effect and about the Constitution, and it may be that that allegation is there so that nobody will complain that people have not given proper notice of an argument they want to run. But if it came down to a question of strict pleading, I am not quite sure that that allegation in form would survive scrutiny. It seems to be an allegation of mixed fact and law. What I am anxious to know is what the factual content of that allegation is.

MR BENNETT: Your Honour, it has, as your Honour says, a number of problems. It is an allegation of mixed fact and law. It is unparticularised and it is fairly meaningless or the meaning is so vague and uncertain as to make it an embarrassing pleading. How does one deal with an allegation that a class of people are at the higher level of employees of government? Really, if we had the luxury of unlimited time, there would no doubt be motions for particulars and to strike out and to have it pleaded in proper form.

Now, the problem has been on all sides, I suppose, that no one wants to delay the hearing because of this. We also do not want to have an issue left over, but it may be that what we need is some directions under which it is particularised and then at some sort of preliminary directions hearing between now and the main hearing work out what is done with it. At the moment it just embarrasses the hearing of the action because of its vagueness and - - -

HIS HONOUR: Let me ask – Mr Solicitor, you are representing Western Australia I think here this morning, have you had a look at this or considered this question?

MR SEXTON: I have not, your Honour.

HIS HONOUR: Maybe Mr Sofronoff would be a better person to ask about it because it affects him. Have you considered the point that I have just raised?

MR SOFRONOFF: Not in the fashion that your Honour is raising it now, but what we would see that provision as addressing are cases where there are activities that used to be governmental activities that are now conducted through government-owned corporations where, in Queensland at least, the shareholders are usually two Ministers and where the persons who are employees of those corporations in days past might have been senior public servants but are now employees of such corporations conducting quasi-government business. We would be happy to particularise that by means of the provision of a schedule.

HIS HONOUR: Just give me a moment, please, Mr Solicitor. I just want to check that your allegation is identical with that of Western Australia and the others that I mentioned. There has obviously been a degree of co-operation in the preparation of these statements of claim, and that is all to the good, but what I did was to go through them checking that there was not anything in them that would cause a problem at the hearing of the demurrers. As it happens, we are not under any particular pressure of time this morning, so we can take our time about this. Yes, I think the allegation is identical.

MR SOFRONOFF: Except that your Honour used the word “higher” with respect to other pleadings. We have used the word “highest”. Nothing turns on that, of course.

HIS HONOUR: Just a bit of overstatement.

MR SOFRONOFF: We are more accurate.

HIS HONOUR: You have been more expansive. What is the factual content of that allegation? It is obviously, in part, an allegation about the legal effect of the provisions and the statement of claim is full of allegations about the legal effect of the provisions and I do not see any problem with that. As far as the demurrers are concerned, people can just argue about the law and the Commonwealth will not be taken to have admitted anything in relation to those allegations of law, but if this demurrer is set down for
hearing what will the Commonwealth be taken to have admitted as a matter of fact in relation to that allegation?

MR SOFRONOFF: Your Honour, in order to answer that, I think we would need to put something in writing by way of particulars so that the Commonwealth and, indeed, we are clear about the detail of that allegation.

HIS HONOUR: It looks as though the best way of dealing with that particular matter is to list this matter for directions again, perhaps early in the April sittings of the Court. Was it only in those three matters – the statement of claim of Western Australia, the statement of claim of Queensland and the statement of claim of the Australian Workers Union – that this question arises?

MR SOFRONOFF: Yes.

HIS HONOUR: Would it be appropriate if I were to direct in relation to paragraph 44(b) of the statement of claim of Western Australia and paragraph 100(b) of the statement of claim of Queensland and paragraph 136(b) of the statement of claim of the Australian Workers Union that in each case the plaintiff, within 14 days of today, provide the defendant with particulars of the facts and circumstances relied upon by the plaintiff in support of that allegation?

MR SOFRONOFF: I would invite your Honour to make that direction with respect to our pleading.

HIS HONOUR: Right. Well, I will make that direction in relation to those three statements of claim. In relation to Victoria, which, in one sense, stands apart from the others because of the referral of powers, Solicitor-General, there is an allegation that is repeated in a number of paragraphs and I regret that I only flagged one of them myself, but you will recognise it when I come to it. You will see it, for example, in paragraph 219.

MS TATE: Yes, your Honour.

HIS HONOUR: I get the point. This is the plaintiff saying you are going to have another look at that corporations case and a similar question arises. This may be an allegation that is simply there to avoid surprise or to comply with that provision of the Rules that says you have to avoid surprise. If that is all there is to it, then there is no problem. I do not think the Commonwealth has yet responded to this – has the Commonwealth - - -

MS TATE: No, your Honour. In fact, our summons which was filed on 3 March sought orders that the Commonwealth either defend or demur to our statement of claim within 14 days.

HIS HONOUR: I would be minded to make that order.

MS TATE: And I believe that the Commonwealth consents to such an order being made.

HIS HONOUR: But what is the Commonwealth going to do with that allegation, which is in a number of paragraphs?

MS TATE: Yes, your Honour. That allegation appears in other statements of claim as well.

HIS HONOUR: I see, I had not noticed that.

MS TATE: But we have separated it out as an isolated paragraph, so we make that allegation on its own. I think almost all of the other statements of claim actually include an allegation in that form simply as another paragraph defining the circumstances in which certain sections may apply.

HIS HONOUR: The Commonwealth obviously in relation to those other statements of claim has not felt inhibited about demurring by that.

MS TATE: No, your Honour.

HIS HONOUR: I take it that is because the parties are treating that, not as an allegation of fact which is admitted by a demurrer, but as an argumentative assertion included to meet the obligation to avoid surprise.

MS TATE: Indeed, your Honour. That is the way in which it has been included within the statement of claim, for that purpose.

HIS HONOUR: Is everybody content that I should just let that pass then, on that basis?

MR BENNETT: We certainly have seen it, your Honour, as a pure allegation of law which could be dealt with fairly shortly, one would have thought, but that is a different matter. We see it as a rolled-up allegation of law, your Honour, and we demur to it.

HIS HONOUR: Mr Solicitor, while you are there on your feet, do you have any problem about a direction that you plead and/or demur to the Victorian statement of claim within 14 days of today?

MR BENNETT: No, your Honour.

HIS HONOUR: Then I will make a direction that the Commonwealth plead and/or demur to the State of Victoria’s statement of claim within 14 days of today.

MS TATE: If your Honour pleases.

MR BENNETT: Yes.

HIS HONOUR: Was there anything else you wanted to raise, Solicitor-General, at this stage?

MS TATE: No, your Honour. Your Honour, we have sought a specific order that our proceedings, that is M21 of 2006, be heard at the same time as the other proceedings.

HIS HONOUR: Yes, I will make that order.

MS TATE: I note that your Honour has made a general order which will no doubt be reflected with respect to each proceeding in due course.

HIS HONOUR: Yes, I will make that order in your case.

MS TATE: If your Honour pleases.

HIS HONOUR: Before I come to what the Solicitor-General for the Commonwealth has called the case management aspects of the matter, which I assume is an invitation for me to go into conciliation mode, as they say – in relation to that question of conciliation I have been advised that I ought to stick to my day job – is there any reason why I should not make an order anticipating a demurrer in the case of the State of Victoria, setting all the demurrers down for hearing on 8 May? All right, I will make that order and the matters will be listed at 10.15 on 8 May. We will set aside the whole of that week, concluding at 4.15 on Friday, 12 May.

MR SOFRONOFF: Your Honour, I did wish to say something about the time allocated to the case.

HIS HONOUR: Yes. Well, this is a good time to deal with that, Mr Solicitor.

MR SOFRONOFF: Your Honour had indicated on the previous occasion that you would set the matter down for those five days. The sums that we have done are these. Those five days - - -

HIS HONOUR: I had better just take a note of this.

MR SOFRONOFF: Yes. Those five days, your Honour, comprise 22 and a half hours. As I understand it, the Commonwealth would wish to have two out of those five days and it is fair to say that if the States go first, as would be the natural order - - -

HIS HONOUR: That would have been my expectation that the States would go first.

MR SOFRONOFF: Yes, I think it is fair to say that we all agree that that would be the fair and natural process. New South Wales would then lead off, being first in time in its proceeding, and going first would take longer than the other parties.

HIS HONOUR: Yes. Whoever goes first is going to carry the burden of explaining the legislation, the detail of the legislation, and will obviously require more time than the others, but I would hope that it will not be felt necessary for anybody else then to undertake any substantial exercise to the same effect.

MR SOFRONOFF: We have been proceeding on that basis, your Honour.

HIS HONOUR: There may be particular aspects of the legislation that some people will want to emphasise and there may be some matters that the Commonwealth will want to contradict or seek to put in a different context or a different perspective, but whoever goes first will have the substantial task of explaining the legislative provisions, although I should say that the form that is adopted by the statements of claim in these cases does a fair bit of that work anyway.

MR SOFRONOFF: There is also this aspect, your Honour, that one tends to observe that whoever goes first of course engages the fresh minds of the Bench and, to that extent, might tend to need more time. But, in any event, our assessment has been that New South Wales, going first, would probably take a day or most of the day. So I have calculated that at four and a half hours. If that is right, then that leaves 13 and a half hours.

HIS HONOUR: Just a minute, you have nine hours for the Commonwealth.

MR SOFRONOFF: And four and a half for New South Wales. I should say, your Honour, that the position of the States is that the Commonwealth should only have a day and a half, but the Commonwealth seeks nine hours. I am doing my arithmetic on the worst case.

HIS HONOUR: Yes, so that leaves how much, did you say?

MR SOFRONOFF: That leaves nine hours for the remaining six substantive parties. I say six substantive parties because, as we apprehend it, the Northern Territory and Tasmania will be volunteering for a minor role in the oral advocacy and the Australian Capital Territory may be limiting itself to one aspect. But that would leave six parties nine hours. That is one and a half hours each, with no time for reply.

HIS HONOUR: Yes.

MR SOFRONOFF: It follows then that the timing is very tight and for our part, for Queensland’s part, we would be - - -

HIS HONOUR: Just to put that into perspective, however, Mr Solicitor, I understand why all the States have commenced their own individual proceedings but in an ordinary case of this kind what would normally happen would be that most of the States would come here as interveners and most of the interveners in ordinary proceedings in this Court are pretty brief. So the problems of time to which you refer reflect the circumstance that for reasons that appear to them to be good reasons each State has commenced its own set of proceedings, in each case filing almost identical statements of claim.

MR SOFRONOFF: Yes, your Honour, and I have taken that into account in the submissions I am making in this way, that on one view there are seven modules or substantive arguments that need to be addressed in the pleadings – perhaps nine if one looks at it in a different way. It is proposed that with respect to all but perhaps one of them we will divide up the task of advocacy, both oral and written, so that the Court is not burdened with repetitive submissions on each of those aspects. So we are taking that into account.

Nevertheless, with respect to what I might term the major point, the corporations power point, it is fair to say that everybody will want to say something about that without being repetitive but it is such a huge issue that it can be approached in a variety of different ways and, if time were unlimited, would be approached in a variety of different ways.

HIS HONOUR: Look, if time were unlimited, somebody would begin at Huddart, Parker v Moorehead and just go on and on and on.

MR SOFRONOFF: My point is this, your Honour, that doing the best we can and not being repetitive with respect to the major point and dividing up the work with respect to all the other points, one and a half hours, leaving
no time for reply, is very, very tight. If the Court were able to allocate an extra day or two, that would alleviate a great deal of the pressure.

HIS HONOUR: That is very difficult. You are not suggesting we should postpone it until some later time than May?

MR SOFRONOFF: If that were the only way to do it, your Honour, we would advocate that.

HIS HONOUR: Well, we obviously could not do it in June because, as you know, we are heading for Brisbane in the second week of June and there is a public holiday on the first day of the first sitting week in June. The consequence of that would be to postpone it until August, which does not seem awfully satisfactory. When this matter was last before me for directions the estimate of time that was given was, I think, five days. Is it the case that the parties have now revised their estimates of how long they think that the proceedings will take?

MR SOFRONOFF: Your Honour, I only speak for myself in answering yes to your Honour’s question.

HIS HONOUR: What about other people? What do they think about that?

MR BENNETT: Your Honour, I would answer yes to that question too. There are two other factors in relation to time which may need to be considered. One is that assuming the order is that the plaintiffs go first, that means there are nine or 10 replies. That needs to be looked at. It may need a special directions - - -

HIS HONOUR: I think we can eliminate that possibility right now, Mr Solicitor. Would there be anybody who would wish to be heard against the proposition that there should be only one reply on behalf of the States and the other parties?

MR BENNETT: Only for the purpose, your Honour, of reserving the possibility, which is a possibility in a case of this magnitude, that something will be said in reply which causes me to seek leave to say, “That’s new matter. I would seek leave to answer it shortly.” That is always a possibility.

HIS HONOUR: Another possibility is that the response to that would be, “Yes, you can do it in writing.”

MR BENNETT: That is a possibility too, your Honour, but it is a factor. The other factor is this. It may be a case where efficiency would be served
if there were a gap of half a day between the conclusion of the plaintiff’s submissions and the commencement of mine for the purpose of preparing a document - - -

HIS HONOUR: I do not think we have that luxury, Mr Solicitor. What would serve efficiency is if I adjourn for 10 minutes.

MR BENNETT: If your Honour please.

HIS HONOUR: I will resume at 10.15.

AT 10.05 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.19 AM:

HIS HONOUR: Mr Solicitor for Queensland, we will allow six days for the hearing of the case and the six days will be 4, 5, 8, 9, 10 and 11 May.

MR SOFRONOFF: Thank you, your Honour. I take it, your Honour, that the 6th and 7th is a weekend.

HIS HONOUR: Yes, it is.

MR SOFRONOFF: Yes, thank you.

HIS HONOUR: We will sit on Thursday, Friday, Monday, Tuesday, Wednesday, Thursday.

MR SOFRONOFF: Thank you, your Honour.

HIS HONOUR: In terms of division of time, there being six days to divide, is it necessary for me to make any directions or can the parties work that out for themselves and, if so, would you like another adjournment for 10 or 15 minutes while you do that? I am perfectly happy to do that. If you would like to talk about this - - -

MR SOFRONOFF: Not at all, your Honour. I think we are confident that we can sort it out.

HIS HONOUR: Very well. Then I will assume that you will be able to agree between yourselves on order of addresses and times for addresses. The matter will be dealt with on the basis that the States will go first and that, I take it, will be the State of New South Wales which was the first to file its statement of claim. Are there any directions that need to be made about times for written submissions?

MR SEXTON: There are, your Honour. Your Honour, what we would propose is that there be a departure, although only perhaps one significant departure, from the existing Rules in terms of filing of written submissions, that the plaintiffs and any interveners in support would file those written submissions by 13 April, which is the day before Easter. Your Honour, because the case has just been advanced – at any rate, that the Commonwealth would file on or before 28 April, which is a Friday, and then the replies would have to be filed, I suppose, by 2 May.

We would propose that the 20-page limit be expanded to 30 in relation to the States and the interveners and private parties, if it comes to that, and we would propose for the Commonwealth a ceiling of 50 pages, not for each matter, but for their submissions generally.

HIS HONOUR: Thank you, Mr Solicitor. What do you have to say about that, Mr Solicitor for the Commonwealth?

MR BENNETT: Your Honour, we have a counter-proposal. My learned friend’s submission in relation to time allows the plaintiffs 26 working days and us eight working days, so it is a fairly one-sided approach. The dates we suggest are 31 March for the plaintiffs to file submissions and our submissions by 28 April.

HIS HONOUR: Just a moment, Mr Solicitor.

MR BENNETT: That is a Friday, your Honour.

HIS HONOUR: Yes.

MR BENNETT: At the time we proposed that to the parties on 1 March, that gave the plaintiffs 23 working days – 22 in Western Australia, South Australia and the ACT because of holidays – and 17 for the Commonwealth, so it still gave us less than the plaintiffs but nothing like the imbalance my learned friend suggests which is, in effect, as at 9 March when they proposed it was 26 working days for the plaintiffs and eight for us. So we submit the appropriate dates are 31 March for the plaintiffs, 28 April for us – they are both Fridays – and then 2 May for replies.

As to length, your Honour, my learned friend’s submission is again a little one-sided. Bearing in mind that there are 10 parties on their side and one on ours, his suggestion of 30 and 50 pages is really 300 pages for the plaintiffs and 50 for the Commonwealth. One must remember in looking at that that it is said that there should not be duplication, so we are being offered a sixth what they are asking for.

Your Honour, in my respectful submission, the convenient course is simply to say reasonable length. Obviously any party would know it is counterproductive to have over-long submissions and the parties will use their best endeavours. But it is very hard to work out in advance of seeing submissions what one is going to need. In my submission, the New South Wales proposal is again very one-sided.

The other minor matters are, your Honour, that we submit it is appropriate for the submissions to be in electronic form, or at least in addition to - - -

HIS HONOUR: You mean available in electronic form.

MR BENNETT: Made available to one’s opponents in electronic form. It makes it much easier to search through for things and - - -

HIS HONOUR: That will not affect the hard copy that we will get.

MR BENNETT: It will not affect the hard copy, no, your Honour.

MR SEXTON: Your Honour, there is just one thing I forgot to mention. One complication about the timetable is that some of the provisions of the legislation depend – their operation is dependent on regulations which are not available as yet. It is said, I think, that they will be available towards the end of March, but that is simply another factor why we have chosen the dates that we have chosen. I should just say in relation to my learned friend it seems fanciful to suggest that the Commonwealth will not be working on its submissions in advance of receiving the State’s - - -

HIS HONOUR: Mr Solicitor, there is an obvious way to split the difference between you and that is to direct that your side’s documents be in by 7 April. Is there any problem if we just split the difference?

MR SEXTON: Your Honour, we say it is not going to really cause a problem of any kind to the Commonwealth, but it is ultimately a matter for your Honour.

HIS HONOUR: What I will do then is direct that the written submissions of the plaintiffs and the interveners be filed on or before 7 April 2006, that
the written submissions of the Commonwealth be filed on or before 28 April and replies on or before 2 May. In relation to the lengths of written submissions, I will expand the limit for the plaintiffs.

MR SOFRONOFF: Your Honour, might I be heard on that?

HIS HONOUR: Yes, certainly. I assumed actually that Mr Solicitor for New South Wales was speaking on behalf of all the States in relation to that, but anybody else who wants to be heard, please say so.

MR SOFRONOFF: Your Honour, with respect to length, we would support the Commonwealth’s proposal that we be limited to a reasonable length.

HIS HONOUR: Anybody else want to comment on this?

MS TATE: Yes, your Honour. Victoria too would support the Commonwealth on this aspect, that the submissions be of reasonable length.

HIS HONOUR: Yes, I think that ultimately inflexibility could be unproductive in relation to a thing like this. So in relation to the lengths of written submissions, I will simply say that in relation to the parties the 20-page limit does not apply and the written submissions should be of reasonable length.

MR McCARTHY: Your Honour, should I understand that to be so for the interveners also?

HIS HONOUR: No, that is why I said in relation to the parties. I have already indicated in relation to the order of addresses that the plaintiffs should agree between themselves on one of their number dealing with the reply.

MR HERBERT: Your Honour, could I be heard on that?

HIS HONOUR: Yes, Mr Herbert.

MR HERBERT: Your Honour, the private parties – I think there are only two of us – may have interests which are not necessarily entirely coincident with those of the States. Mr Jackson, QC will be appearing for the parties for whom I now appear. I would ask, your Honour, that the possibility of the interests for whom I appear, having the ability to request to make a separate reply to the States rather than delegate their arguments to the States for the purpose of the reply.

HIS HONOUR: No, I do not propose to alter what I said, Mr Herbert, for this reason. It is something that I mentioned earlier. I can understand why a number of people who might otherwise be interveners or have the role of interveners have decided to become litigants in these proceedings, but I do not want that circumstance unnecessarily and unduly to distort the shape of the proceedings. We have a multiplicity of plaintiffs for reasons that I believe I understand, but essentially, the challenge to the validity of the Commonwealth legislation, with the exception of the position of Victoria which is different, brings together parties who are in substantially similar interests. So I will not alter what I said.

MR HERBERT: Thank you, your Honour.

MR SEXTON: There is one other matter, your Honour. The parties will need formal leave to amend the statement of claim to deal with the numbering of the legislation, because it is going to be renumbered, but we do need formal leave if we could have that.

HIS HONOUR: Is there any reason why that leave should not be given? You have that leave. Apart from listing the matter for directions on say 12 April, by which time the plaintiffs’ written submissions will be in, is there anything else that I need to do at the moment?

MR SEXTON: I do not think so, your Honour.

MR BENNETT: The direction about electronic submissions, your Honour.

HIS HONOUR: Yes, formulate the direction that you want.

MR BENNETT: That all parties be directed when they file and serve their submissions to serve in addition a copy of the submissions in electronic form.

HIS HONOUR: Any reason why I should not make that direction? I make that direction.

MR BENNETT: That assumes the Court does not require them in electronic form. If the Court does, it would be a minor amendment to that.

HIS HONOUR: Any other matters on which there should be directions? Very well, then the demurrers, and I include in that in anticipation the demurrer in the case of Victoria, will be set down for hearing on Thursday, 4 May at 10.15 am and the hearing will conclude on Thursday, 11 May at 4.15 pm. The summonses for directions will be listed for further hearing at 9.30 am on Wednesday, 12 April.

Unless there is anything that looks like a problem that needs to be dealt with on that occasion, it might be convenient for all the plaintiffs to have one representation only. You can work that out between yourselves as to what is convenient for you in that regard. Under the new Rules, is there any need to certify for counsel?

MR BENNETT: I do not think so.

HIS HONOUR: Then I will reserve any question of costs of this directions hearing. Why should I not simply say that costs of directions hearings will be costs in the proceedings? I say that now.

The Court will adjourn.

AT 10.35 AM THE MATTERS WERE ADJOURNED
UNTIL WEDNESDAY, 12 APRIL 2006