Mac's Pty Limited and R&R Fazzolari Pty Limited v Parramatta City Council & Anor [2008] HCATrans 305 (26 August 2008)

Last Updated: 29 August 2008

[2008] HCATrans 305

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S324 of 2008

B e t w e e n -

MAC’S PTY LIMITED

Applicant

and

PARRAMATTA CITY COUNCIL

First Respondent

THE MINISTER ADMINISTERING THE LOCAL GOVERNMENT ACT 1993

Second Respondent

Office of the Registry
Sydney No S323 of 2008

B e t w e e n -

R & R FAZZOLARI PTY LIMITED

Applicant

and

PARRAMATTA CITY COUNCIL

First Respondent

Applications for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 AUGUST 2008, AT 11.08 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR I.J. HEMMING, for the applicants. (instructed by Hunt & Hunt)

MR N.C. HUTLEY, SC: If your Honours please, I appear with my learned friends, MR R.J. CARRUTHERS and MR C.R. IRELAND, for the first respondent in each of the applications. (instructed by Blake Dawson)

HAYNE J: Yes. There is no appearance, I think, on behalf of the Minister in the application brought by Mac’s, is that right?

MR HUTLEY: No, your Honour.

HAYNE J: Is it convenient to hear the two applications together and to treat them as one application?

MR WALKER: Yes.

MR HUTLEY: Yes, your Honour.

HAYNE J: Yes, Mr Walker.

MR WALKER: Your Honours, on that combined basis, two privately owned parcels of land at the corner of Church and Darcy and in Darcy Street, Parramatta are included within what I will call a larger scheme promoted by the Council for Civic Place, as it is to be designated, in the heart of Parramatta. There is no question but that and no contest intended in this Court that the project of promoting Civic Place, including all the steps ancillary to its achievement, by stages is within the functions of the Council. However, the question in this case is the extent to which the interests of the private owners, my clients, have been recognised by the legislation in the Local Government Act 1993 as it intersects with the statute which generically governs acquisition of land by compulsory process, namely, the Land Acquisition (Just Terms Compensation) Act 1991.

HAYNE J: Could I just take you back a moment to what you identified as the relevant function of the Council that was being pursued?

MR WALKER: Yes, your Honour.

HAYNE J: I think I missed something in what you said. Can you restate it?

MR WALKER: Your Honours will find in the statutory material that has been supplied at tab 4 of the respondent’s material, this being the high point or specific answer to Justice Hayne’s question, Part 6 of the Local Government Act 1993 which, in what may or may not be now dated jargon, refers to “a public-private partnership” That is defined in section 400B(1) as:

a reference to an arrangement between a council and a private person for the purposes of:

(a) providing public infrastructure or facilities (being infrastructure or facilities in respect of which the council has an interest, liability or responsibility under the arrangement), or

(b) delivering services in accordance with the arrangement –

Then, under tab 6, section 400I, if the hurdles can be cleared, which are hurdles I will summarise as being devices and checks of a responsible government nature, in section 400I(3)(b) there is what is called an entitlement:

to proceed with the carrying out of the project.

There is no question but that infrastructure and facilities of the kind answering the description of the statutory definition are included within, indeed dominating the rationale for the Civic Place project. There is also no doubt and would never be intended to be contest in this Court were special leave granted that the Council has what I will call a power of resale.

The word “resale” needs a little attention. It requires an understanding, lexically, that the compulsory acquisition is to be regarded as falling within the notion of a sale, the first sale. A transfer by the authority, the Council, in whom compulsorily acquired property is vested is to be understood as a resale. The prefix “re” meaning the transfer by the Council following the vesting in the Council upon compulsory acquisition. It is resale or the purpose of resale which is at the heart of the matter upon which we failed in the Court of Appeal; failed, in our submission, on a matter of statutory interpretation concerning which factual material provides merely the circumstances in which the interpreted statute is to be applied and cannot affect the interpretation itself.

Your Honours, in this case factually you will find a useful, if not fully detailed, description on pages 7 and 8 of the application book by the judge at first instance in paragraphs 11 and 12 of the nature including some of the salient features of the successive stages of this Civic Place project. Your Honours will have seen in the exchange of written submissions a contradiction essayed by our learned friends of what we have put concerning the intended fate under the project of the parcels of land comprised in the intended or proposed compulsory acquisition.

First, so far as my client’s parcels are concerned, there is no doubt but that after compulsory acquisition by the Council it is proposed by the arrangements in place with Grocon, the private developer, that that will be resold; those parcels will be resold, to use the statutory language, that is, transferred on in return for Grocon carrying out its obligations to the requisite stage as contemplated by those arrangements for the realisation of Civic Place project. That, in our submission, means that unquestionably there will be resale within the statutory meaning of that expression in relation to my client’s land.

However, the attempted contradiction by our learned friends in the written submission concerns what I will call the road lands. Portions of Darcy Street and Church Street themselves are proposed to be compulsorily acquired. They are, of course, already vested in the Council but Parliament with its great powers has provided in section 7A of the Acquisition of Land Act that a public authority may compulsorily acquire land notwithstanding that land is already vested, or to use the statutory language, even if the land is already vested in the Council. An explanation for that is that in certain circumstances, by dint of section 20(1)(b) of the Land Acquisition Act, that vesting following compulsory acquisition will disencumber, so to speak, the land of dedications, reservations and other interests.

As we understand the factual contradiction attempted and argued by the respondents as rendering this an unsuitable vehicle for special leave the proposition is that the Council land, the roads, sought to be acquired in the same project as my client’s parcels are to be acquired will not themselves be acquired for the purpose of resale. However, it is clear from the description you see in paragraph 12(a) and (b) on pages 7 and 8 of the application book that there are portions both horizontally and vertically understood, so portions in plan as well as portions in vertical strata, of the road land which will be transferred on to Grocon. One sees, for example, in 12(a) that part of:

Darcy Street will be incorporated in part within the proposed commercial building known as “The Atria”, in part within the residential building called “Park Apartments” and in part will be returned as public road –

So, unquestionably, the Council lands comprised in the roads are to be acquired for the purpose of resale, that is, in part, that being the familiar way in which compulsory acquisition can encompass resale, that is, selling over of surplus or even selling of sufficient money to fund the intended public interest project. For those reasons the point that has been raised against us about section 188(2) is not a reason to refuse special leave.

At that point may I come to the critical statutory provisions which are at the heart of what we submit is a narrowly contained and clearly thrown up argument of statutory interpretation apt now for a grant of special leave, notwithstanding the special circumstances to which I will come next in my argument after I have dealt with the statute. The statute is conveniently found in the respondent’s bundle of material at tab 3 and, as your Honours have seen from our written submission, our argument proposed for this Court starts with the common ground that section 186 is a critical foundation for any understanding of the succeeding provisions.

In section 186(1) the power to acquire land is described as being “for the purpose of exercising any of its functions”. That means by the concession that I have started with today that the Council may acquire land for the purpose of promoting and facilitating the project known as Civic Place. Under section 188 there is by subsection (1) an entrenchment on that power, not by contradicting it but by qualifying it in what we submit is the plainest acceptance by Parliament, as a matter of policy, not law, of a balance to be recognised when compulsory acquisition would otherwise be available but it is for a “purpose of re-sale”. See the last words of section 188(1).

The balance is that then there is what we do not shrink from calling a veto, with all the commercial advantage that that bestows, given to the private owners as to whether they will permit this alienation for the carrying out of one of the functions of Council when there is a purpose of resale.

HAYNE J: Assuming for the purposes of this application that you raise a contestable question about the construction of section 188, what about the answers that Mr Hutley makes?

MR WALKER: Can I come to that immediately?

HAYNE J: Yes.

MR WALKER: I have tried already to lay the groundwork for my answer about 188(2). It is not the only one of my friend’s objections. Can I start with that. My friend says, in effect, even if you be right that 188(1) at first sight is attracted by this case, it cannot help you on the facts of this case because paragraph 188(2)(a) will apply by reason of the Council land, the roads portions to which I have referred. Let it be clear that the land of my clients plainly adjoins or lies in the vicinity of other land, Council land, the roads land, which is to be acquired at the same time. Where we are at odds about 188(2)(a) is whether that is to be acquired for a purpose other than the purpose of resale.

Your Honours immediately see that whether we are right in how one understands the purpose of resale in 188(1) following upon an understanding of the power generally to acquire land to exercise a council’s function under 186(1) is likely to inform in the nature of things what the purpose of resale means in 188(2)(a). So the first part of my answer is, well, the argument, assume it be a contestable one, a respectable one, for which we seek special leave in relation specifically to 188(1) is an argument that in fact incorporates, encompasses and will deal with the matter of 188(2)(a). That is the first part.

The second part is the factual premise by which the respondent argues that 188(2)(a) undecided by the Court of Appeal nonetheless blocks us off is wrong. It is wrong because, as can be seen from the description of the project to which I have taken you, the road lands are intended in part, indeed, in most important part, to be transferred on to Grocon; not all of them. In other words, there is a resale which is a purpose of the acquisition by the Council of the road land already vested in the Council and for those reasons, in our submission, 188(2)(a) will never be engaged.

Now, here I have to confess, we are committing something like the same sin, if it be one, as I have attributed to the respondent, that is, inviting the Court in special leave to take a view about the application of 188(2)(a) when that was most designedly and deliberately not decided in the Court of Appeal, but we would seek to allay any concern in relation to special leave in that regard as follows. That is nothing other than what I will call a contention point following from the proposition that the Court of Appeal has incorrectly decided an important initial step in an argument concerning the vindication of legal rights, here 188(1).

They did not, though they could have, decided, in case they were wrong on that point, how 188(2)(a) should have been decided. They did not. We, the applicants, whose private land is endangered as to their ownership and enjoyment of it by the determination of the Court of Appeal should not be kept from this Court alone by reason of the failure of the Court of Appeal to decide the argument about 188(2)(a) which could have been but was not decided de bene esse.

HAYNE J: But is the consequence of that that if leave were to be granted, the relief you seek in the draft notice – looking at the application not the draft notice of appeal – would be remitted or would you say that this Court should decide it? I have in mind what is at 277 of the application book. What would you have this Court do if leave were to be granted and an appeal were to succeed?

MR WALKER: Simply to have the appeal to the Court of Appeal dismissed.

HAYNE J: That would entail this Court embarking, would it, on the 188(2)(a) question?

MR WALKER: I think the only proper answer to that is yes, or at least I cannot presently think of how we could dodge that.

HAYNE J: Of a reason to say no?

MR WALKER: No, I do not think that there would – because this Court’s duty is to make the order the Court of Appeal should have made, if the Court of Appeal had a two-stage argument, first, 188(1) and then 188(2) they decide in a particular way sub (1) therefore say, “We will not need to or do not decide sub (2)”, then it follows in an ordinary, not an exceptional way, in a quite ordinary way, that in this Court, depending upon the fitness or rightness of the record of the issues for determination in this Court, it should be no objection or obstacle to special leave that having reversed what the Court of Appeal did on the first step this Court then deals, because the Court of Appeal should have, by hypothesis, with the second part.

HAYNE J: But it would be your submission, would it, that the factual record suffices for this Court to decide any 188(2)(a) issue?

MR WALKER: Your Honours ought not to be in the slightest degree nervous or apprehensive about the threats made by reference to copious but factual material by the respondent. This is bread and butter interpretation of a development deed, an understanding of registered title plans. They are not complex. There will be, and there was in the Court of Appeal, no attempt to say that, for example, Justice Biscoe got wrong the summaries that we have referred to on pages 7 and 8 of the application book. I stress factual material is not going to alter the interpretation of the statute, it merely provides that to which the interpreted statute will be applied and the factual material is beyond the contest.

For those reasons, in our submission, there remains only the last obstacle that I ought to anticipate and that is that the so-called PAN, proposed acquisition notice, has a currency which has expired. There may not be acquisition pursuant to the PAN which was the object of our objection. Hence the affidavit evidence that your Honours have seen. It appears clear, beyond any possible doubt, that the Council intends to proceed.

The statute, section 14 provides for there to be, after a decent interval, subject to ministerial approval to the contrary, another notice issued. There can be no doubt but that either by issue estoppel or by the most powerful precedent one can get in New South Wales, that the determination against which we seek special leave to appeal will conclude the issue were special leave not to be granted here and we would have the double difficulty of the argument concerning whether or not leave to reopen in the Court of Appeal should be permitted. For those reasons, the matter is ripe now. May it please the Court.

HAYNE J: Thank you Mr Walker. Yes, Mr Hutley.

MR HUTLEY: Your Honour, the applicants, both at first instance and in the Court of Appeal, contended that on the true construction of section 188 the words “acquired for the purpose of re-sale” involve two propositions. Firstly, the purpose meant, on its true construction, a substantial purpose as that noun phrase is explained in Thompson v Randwick Municipal Council [1950] HCA 33; (1950) 81 CLR 87, namely, a purpose without which the acquisition would not have taken place and that your Honours will see from application book page 231, paragraph 183. The second proposition was that a resale included any transfer by the Council to a third person for any consideration at all. Your Honours will see that that was dealt with at application book 233, paragraph 192.

The first respondent’s position was that the words involved two different propositions, firstly, that the purpose meant the dominant or sole purpose and, secondly, that resale meant a sale by the Council for, in effect, cash or substantially cash. The applicant lost both arguments. The disposition of the first proposition committed the Court of Appeal to undertaking a fact-finding exercise about the purpose of the Council framed by the competing contentions which were advanced by the parties both at first instance and in the Court of Appeal.

The Court of Appeal was not requested by any party to determine whether there existed some subsidiary purpose on the part of the Council to ultimately transfer to Grocon the land. As such, a finding was irrelevant to the case as advanced by the respective parties. The attempt to suggest the contrary in the applicant’s reply submissions, at application book page 263, paragraph 3, is without substance. We have the relevant transcript against which the extracts which appear there was made.

HAYNE J: Correct me if I am wrong, was not the litigation below all conducted on the conventional basis that the proposed acquisition was in connection with the proposed PPP with Grocon.

MR HUTLEY: Your Honour, it was not in connection with the PPP. There were a number of bases upon which power was said to exist and the Court of Appeal relied on a number of functions to conclude that the acquisition was justified, including section 24 of the Act and the PPP provisions. My learned friend took you to one. So, there are a number of bases.

HAYNE J: But was there any dispute that the land was being acquired in connection with, for the purpose of, the development of Civic Place?

MR HUTLEY: My learned friend’s position, at first instance, was that it was for the sole purpose of transferring it to Grocon. In the Court of Appeal that remained their position but then moved over to an argument that for section 188 purposes all the court had to be satisfied is there was a but for purpose with respect to the acquisition, namely, that the acquisition would not have taken place but for the fact that it was being transferred to Grocon. So, in other words, there was no argument at any stage that any purpose, no matter how minor, was sufficient to engage 188.

The transcript which I handed up to your Honours, and your Honours will see on page 54 of that transcript commencing at line 30 the passage extracted in our learned friend’s submissions in reply, however, that passage can only be understood in the context of that which appears at lines 27 to 29 which exposes the applicant’s argument in the Court of Appeal, namely, that the purpose had the meaning derived from Thompson v Randwick Municipal Council. The same applies to the passages at page 56, lines 1 to 7. The context is the same context as appears from page 55.

It also follows from that that my learned friend’s complaint that the Court of Appeal applied what they choose to call an unnecessary gloss on section 188 strikes one as a trifle hypocritical as the applicant’s case in the Court of Appeal that another gloss should be put on the words in section 188, namely, the substantial purpose gloss. However, can we against that background turn to the factual findings actually made in the Court of Appeal about purpose. These were principally in the judgment of Justice Tobias.

Could I take your Honours first to paragraphs 147 and 148 which your Honours will find at application book 221 and from the second sentence in 147 I would ask your Honours to read to the end of 148. If your Honours would then turn to paragraph 176 which your Honours will find at application book 229 and the last sentence of that paragraph, “But in my opinion”. If your Honours then pass over to paragraph 182 on page 231. Then finally, your Honours, at paragraph 186, particularly the last sentence.

Justice Hodgson, at application book 165 in paragraph 1, substantially agreed in the judgment of Justice Tobias. His Honour then went on to discuss the issue of purpose, in our submission, not so as to dissent from Justice Tobias’ factual findings, but rather to expose the analytical framework against which that conclusion was to be arrived at, and that is at paragraphs 3 to 6 of his Honour’s judgment. No room was left for any operative purpose to transfer to Grocon the property, even a subservient one. Justice Palmer agreed at application book 236 at paragraph 202 in the judgment of Justice Tobias.

HAYNE J: Could I just take you back to page 221, paragraph 147. That was, I think, one of the passages to which you drew attention, is it not?

MR HUTLEY: Yes, your Honour.

HAYNE J: Can I take you to the last line of that paragraph. Does your argument depend upon identifying the content of the words, “implementing the Civic Place project” and distinguishing the content of that expression from some other expressed purpose as reselling the land or the like?

MR HUTLEY: Yes. To answer your Honour we say that there was a detailed factual inquiry as to really what the end sought to be achieved by the Council was.

HAYNE J: The end the Council wanted to achieve was the Civic Place project, is that right?

MR HUTLEY: Precisely, yes.

HAYNE J: And was the Civic Place project one that involved Grocon?

MR HUTLEY: Yes, your Honour.

HAYNE J: And was it a project that involved Grocon ending up with ownership of some of the land?

MR HUTLEY: In the way that it was ultimately concluded, your Honour, yes.

HAYNE J: Was the land that Grocon would end up owning land which included the two present applicant’s land?

MR HUTLEY: As it was then contemplated, yes.

HAYNE J: There is the issue for debate, is it not?

MR HUTLEY: But, your Honour, there was a debate as to whether the but for purpose would take place in the way as advanced in the Thompson Case.

HAYNE J: There is a debate about the expression of the purpose, whether you sufficiently express the purpose as implementing the Civic Place project or whether that is a complex statement containing within it a number of elements, one of which is acquiring the land for the purpose of ultimate transfer to Grocon.

MR HUTLEY: Your Honour, in our respectful submission, that essentially, at the end of the day, and one would have to go through the detailed factual analysis, is exposed to be a factual question. For example, as a matter of history, for a long time in this development this land, one, they had not decided what would to happen to title to almost the end and for a very substantial part of the negotiations in relation to this development, the land of the applicants would have been held by Council. So, in other words, our position was, and it requires a detailed analysis of the facts is, this was merely a mechanical exercise which from the Council’s point of view was a matter of indifference as to the ultimate outcome of where the land went, such as to not constitute an end sought to be achieved by Council.

Those were factual findings which were made, we say, by Justice Tobias and agreed in by the other justices in a context where my learned friends had not advanced any argument that no matter how minor the purpose is, that is sufficient to engage section 188(1). So, in other words, the whole debate that took place in the Court of Appeal was a debate which had no regard for the case now put before this Court. Thus, the Court has not had the Court of Appeal’s analysis of the facts, it has not had the advantage of hearing the Court of Appeal’s analysis of the legislation and the history of this sort of legislation in the State of New South Wales to assist your Honours in considering what should be the true construction of the legislation.

HAYNE J: Assume for the purposes of debate that those submissions were to be accepted, there is not a Coulton v Holcombe point, is there, or is there?

MR HUTLEY: Your Honour, we do not say there would have been other evidence led. We cannot put that proposition. We say the case would have been conducted in a quite different fashion, namely - - -

HAYNE J: It is a vehicle point. It is not a point about preclusion of putting the argument. Yes, I understand that.

MR HUTLEY: Yes, your Honour. I accept that. It is the sort of Moustakas territory, that is, at first instance and in the Court of Appeal there has been a calculated decision on the part of the now applicants to run the case in a certain way. Both at first instance and on appeal the factual finding and the inquiry by both courts has been directed to the issues so put forward by the respective parties. My learned friends now seek to completely flip that for the first time on this special leave application and, if leave is granted, in the High Court. In our respectful submission, that has deprived the High Court of the assistance which it would be entitled to of the Court of Appeal, particularly, if I might say so, comprised of the justices who comprised it, one of whom was a particular expert in the field of local government, the Court’s assistance of the views of the Court of Appeal upon the issues as now framed.

We say, in effect, the Court of Appeal has found it was no part of the purpose and if those factual findings are to be upset, that will involve the Court having to go through, not as my learned friend says just looking at an agreement, but your Honours will be taken through 22 volumes of material to make the good the point which the Court of Appeal was taken through to come to the conclusion which the Court of Appeal came to, that it is just fanciful to refer to this as a purpose in any meaningful sense. It was merely a mechanical means to achieve what was the true purpose and was always the purpose of the Council. So, it is really not an appropriate vehicle for the inquiry.

Secondly, the application book does not raise as a point of general interest what is the meaning of “resale”. My learned friend may have departed from that in his submissions on his feet. The Court of Appeal found that on its true construction it meant acquisition for the purposes of disposition in cash or its equivalent and the Court of Appeal took that view in the judgment of Justice Tobias at paragraphs 190 to 196 at application book 233 essentially on the basis that the ordinary meaning of the word “resale” in the context did not depart from the ordinary meaning of “sale” which this Court has held to mean a sale for cash in such cases as Chan and the like.

HEYDON J: Or money’s worth?

MR HUTLEY: Or money’s worth, quite. Here, in effect, when one went to the agreement, the agreement was an immensely complex series of promises passing of a public and private – which one could describe as money or money’s worth in any - - -

HAYNE J: What, Grocon got the land not for money or for money’s worth? It is a rather startling proposition coming from the Council, surely?

MR HUTLEY: No, your Honour. What we got was not money’s worth. We got public interest of protecting and ensuring control over the development in the public interest. One has to look at it from the point of view of what we received, in our respectful submission, rather than what Grocon was prepared to pay.

HAYNE J: But is the proposition the Council advances that Grocon ends up with the land without giving money or money’s worth for it?

MR HUTLEY: No, it gave consideration, your Honour.

HAYNE J: Yes, but money or money’s worth, Mr Hutley?

MR HUTLEY: Your Honour, we say that the promises were not money’s worth as that is properly explained in the cases. In other words, to transfer into a joint venture for rights associated with a joint venture is usually not considered to be a sale into a joint venture. It is a transfer for consideration. Anyway, that point exists and that point would have to be revisited.

Finally, your Honour, there is no way of escaping that if special leave were to be granted in this case one would have to embark upon the section 188(2)(a) inquiry and one would have to embark on it for this
reason. My learned friend’s case now is that any acquisition, as we understand it, with any purpose which ultimately ends in a transfer must be a section 188 transaction, therefore there is a preclusion of compulsory acquisition without consent.

That leaves the extraordinary proposition that, for example, if some tiny portion of this land were to be acquired with the view of Council that because it was superfluous to its other public needs it might be on-transferred to cash, be it 1 per cent of the land or not. There would be a statutory veto. That seems to be the logic of my learned friend’s submissions. That position, in our respectful submission, explains why this position was never taken by my learned friend’s predecessors who are, in our respectful submission, rather eminent counsel who knew what they were about - - -

HEYDON J: Mr Walker is very eminent.

MR HUTLEY: Yes, he has changed the position to give it an appearance of an interesting question. In our respectful submission, the reason why that approach was not taken before is because it logically leads to absurd results that a veto can exist even if some tiny sliver of land is intended to be passed on to the public. That is often the context in which these acquisitions take place. My learned friend is committed to that proposition, in effect, such that unless the Council is going to absorb the entirety of a title there can be no acquisition without consent.

In our respectful submission, that will be a result which would be such a departure from the history of compulsory acquisition it cannot have been intended. For those reasons this is not an appropriate vehicle for a grant of special leave, having regard to the way in which the case has been conducted to date and, secondly, the prospects of success are low. May it please the Court.

HAYNE J: We need not trouble you in reply, Mr Walker.

There will be a grant of special leave in these two matters. What has been said about the record in the courts below may require some consideration of the way in which the record is prepared in this Court and it may well be, therefore, that this is a matter appropriate to be taken under a degree of closer management by a Justice than ordinarily be the case. It is entirely a matter, in the first instance, for the parties to give consideration to what each side considers should be the appropriate record, but speaking only for myself, there would be a deal of resistance to the notion that all 20-odd volumes would require reproduction in this Court.

Whether this is a matter in which it is appropriate that preparation of part of the record, namely, evidence in the courts below, should await exchange of written arguments is a matter that should await further decision, but the preparation of the record of this case should not go forward on the unchallenged assumption that the whole of the record of the proceedings below must necessarily be reproduced in this Court. If it has to be, it has to be, but if it does not have to be, it will not be.

MR HUTLEY: Can I raise one matter, your Honour?

HAYNE J: Of course, Mr Hutley.

MR HUTLEY: Your Honour would appreciate that expedition was granted by the Chief Justice for the application. I do not know if your Honours have seen the material upon which that was based.

HAYNE J: Yes.

MR HUTLEY: This is a matter we would seek, if possible, a degree of expedition as such degree as the Court has available for a disposition of the appeal.

HAYNE J: As at present advised, Mr Hutley, what estimate of time would you give for the hearing of the appeals?

MR HUTLEY: Your Honour, because of the factual issue, one may be able to get it into a day if one got some liberty with respect to the limitations on submissions, some slight lengthening so one could go into the factual history, perhaps, in a little greater length than one would normally in an endeavour to get the appeal on and disposed of as quickly as possible.

HAYNE J: But would it be comfortable to say a day and a half for the appeal? I mean, it may be a day, but if we set a day and a half, would that be a comfortable time or would it still be tight?

MR HUTLEY: With an indication that the Court would be minded to allow some limited extension of the scope of written submissions, I think a day and a half would deal with it. It took on the last occasion with the Court of Appeal, a lot of which perhaps is overcome, almost a day to go through the factual material. I mean, of course, it will not be as along before your Honours but we apprehend our learned friends will be submitting that there was a factual error – are now committed to a factual error on the part of the Court of Appeal, so one has to deal with that.

HAYNE J: Yes. Mr Hutley, Justice Heydon points out to me that there would be advantage in a number of respects if the preparation of the written arguments in these matters proceeded very promptly and by that I mean the process to begin within a very short time, a couple of weeks or thereabouts.

MR HUTLEY: Yes, your Honour. Any time the Court is minded to put we will fall in with.

HAYNE J: The respondent can no doubt say with great abandon that the process should begin as soon as may be, Mr Hutley.

MR HUTLEY: That is why I said it, your Honour. It is important this be dealt with.

HAYNE J: I understand that, but if we were to simply indicate to the parties that if they could agree upon a timetable for the filing of the written arguments in the matter commencing, say, within 14 or 21 days from now while the mind of counsel is fresh from leave, then questions of preparation of the record can be considered in the light of the way the arguments join issue and it would mean, I suspect, that you would have an exchange of written arguments shorn of proper reference to appeal books, because you would not have them, that you would be preparing your appeal books in two parts, firstly, a volume comprising, presumably, the critical transaction documents plus judgments below, notice of appeal, order granting leave, so core documents, and then, later, a volume – he says, hopefully – of evidentiary material to which reference would be made and that the outlines of argument that are filed would then be re-engrossed with a proper critical apparatus applied consisting of references to appeal books as finally settled. Our difficulty in dealing with a fact heavy case is intensified if the submissions come on late.

MR HUTLEY: Of course, your Honour. Your Honour has my request for a little lengthening of the submissions fallen on - - -

HAYNE J: It has simply fallen, Mr Hutley.

MR HUTLEY: Could I attempt to re-lift it up?

HEYDON J: Mr Hutley, I am personally unhappy with that. The fact is history teaches that if you cannot say something in 20 pages, you usually cannot say it at all. I understand what you mean about detailed factual analysis.

MR HUTLEY: In this Court that is usually the case because this Court usually is unsullied by what I am going to seek to sully your Honours with and for that reason I make this request.

HEYDON J: Just personally, I am happy with the request without any particular limitation, but it will not create a satisfactory atmosphere if very lengthy submissions are put on.

MR HUTLEY: Your Honours need say no more. If we can do it within 20, we will keep it as - - -

HAYNE J: You will leave this Court with no direction permitting lengthening, Mr Hutley. Counsel should bring his or her head with them to Court when relying upon them.

MR HUTLEY: The difficulty is, is it not, your Honours, that the Registry, unless there is some indication on the record as to that, will reject any submission which transgress the limits?

HAYNE J: I think that a Justice having the management of the matter will have regard to what has been said, but you presently have no direction permitting length. That will be given, perhaps, on the papers.

MR HUTLEY: As your Honours please.

HAYNE J: I cannot say to counsel whether we are able to be looking towards dates in October or instead in November but if counsel order their affairs on the assumption that they will be advantaged if they are in a position for fixture in October, so be it.

There will be a grant of leave in each of the two matters.

The Court will adjourn to 10.15 am tomorrow in Canberra.

AT 11.58 AM THE MATTER WAS CONCLUDED