ICM Agriculture Pty Ltd & Ors v The Commonwealth of Australia& Ors [2009] HCATrans 158 (26 June 2009)

Last Updated: 2 July 2009

[2009] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S24 of 2009

B e t w e e n -

ICM AGRICULTURE PTY LTD

First Plaintiff

ICM AUSTRALIA PTY LTD

Second Plaintiff

HILLSTON CITRUS PTY LTD

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

NATIONAL WATER COMMISSION

Second Defendant

THE STATE OF NEW SOUTH WALES

Third Defendant

THE MINISTER ADMINISTERING THE WATER MANAGEMENT ACT 2000 (NSW)

Fourth Defendant

Summons for Directions

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 26 JUNE 2009, AT 3.02 PM

Copyright in the High Court of Australia

__________________

MR R.J. ELLICOTT, QC: If it please your Honour, I appear with MR M.G. McHUGH for the plaintiffs. (instructed by Chris Naylor Legal Counsel)

MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If your Honour pleases, I appear with MR C.L. LENEHAN for the first and second defendants. (instructed by Australian Government Solicitor)

MR J.K. KIRK: If it please the Court, I appear for the third and fourth defendants. (instructed by Crown Solicitor (NSW))

HIS HONOUR: Yes, Mr Ellicott.

MR ELLICOTT: Your Honour, since the last hearing before your Honour the case stated has been settled, subject to two matters that I have mentioned to the Solicitor and I understand the State agrees, but those are matters that will not hold up the case being stated or of being filed on the date that we suggest. All this, of course, is subject to your Honour’s approval. There is a question added, your Honour may have noticed, at our request which relates to whether there is a constitutional right to bring an action in relation to just terms. That is going to, if it - - -

HIS HONOUR: This is an implied just terms guarantee, is it?

MR ELLICOTT: Yes, your Honour. It has not been dealt with in other cases which have been rather dogmatic, one might say, in relation to the issue and based on observations which have been made, including your Honour’s observations in Wurridjal’s Case where your Honour deals with the background in the common law. It seemed to us that this was an arguable issue and that is the reason it is there. We had to amend our statement of claim and the form of the amendment has been set out in the formal order.

HIS HONOUR: I am just wondering, what I would like to do is to look at listing this in the week of 24 August and what I am a bit concerned about is there is a very short time between the last of the written submissions being filed, which would be on the Friday, I think, on your timetable. It occurs to me that the time that has been given for the filing and service of the special case of 13 July might be a bit more than you actually need given the stage that you have reached. What else has to be done in relation to that special case?

MR ELLICOTT: Only to insert a document which represents a bill that has been passed through the House of Representatives and to put in some paragraphs which I do not think will be contentious – I cannot think they will be contentious – as to the transferability either permanently or temporarily of surface water entitlements. We deal with the groundwater transferability but the paragraphs are not there relating to surface water transferability.

HIS HONOUR: Presumably that is a matter of law, is it?

MR ELLICOTT: Yes, although because we have done it in relation to groundwater, we thought it was convenient to insert some paragraphs in relation to that but they will not be very lengthy. It is just a matter of identifying the date when they became transferable either permanently or temporarily, that is, temporary water or permanent water, and the paragraphs should not be more than two or three that would go in in the relevant part. I think those paragraphs would be determined in the course of the next week and the case could - - -

HIS HONOUR: I am just wondering whether there is any reason – I will ask Mr Gageler in a moment – why the special case could not be filed by 8 July, in other words, pull everything back a week?

MR ELLICOTT: Yes. I do not know of any reason, your Honour, because I do not think those matters would create a problem.

HIS HONOUR: Mr Gageler?

MR GAGELER: No, your Honour, there is no difficulty at all with that. I had understood that the plaintiffs would have been in difficulty if they were to file their submissions before 3 August. So, if that is a real difficulty with the plaintiffs, I am not sure that changing the date for the filing of the special case would really matter very much.

HIS HONOUR: I see. Well, I had better hear from Mr Ellicott, I think. Yes, Mr Ellicott.

MR ELLICOTT: Your Honour, I think we were dealing with the date of 31 July or 3 August and one was a Monday and the other was a Friday, but there is no problem in relation to really – I think it is Friday, 31 July, your Honour.

HIS HONOUR: I was thinking of pulling everything back a week, including that, but that would take you back too far, would it, to 27 July? What about we compromise and look about the middle of the week, say the 29th? Can you handle that?

MR ELLICOTT: The 29th, not a matter that I would debate, your Honour.

HIS HONOUR: Good. It is just to make it a little bit more generous at the tail end because we, of course, have to read everything and it helps if we have more than a weekend to do it, not that we do not work on weekends, Mr Ellicott.

MR ELLICOTT: If your Honour pleases.

HIS HONOUR: All right. Mr Kirk, do you have any problems with any of these proposals?

MR KIRK: No, your Honour.

HIS HONOUR: All right. Let me just have a look at the timing then. The only other variation I would propose, is there any reason why the special case book cannot be filed at the same time as the special case? That is your carriage, I think, Mr Solicitor.

MR GAGELER: There may just be practical printing and collation reasons, your Honour.

HIS HONOUR: It is already in draft, is it not? They are the volumes I have, are they not?

MR GAGELER: No. I am sure I can take it upon myself to say no.

HIS HONOUR: You have liberty to apply if there is a crisis.

MR GAGELER: Yes. I doubt there will be a crisis.

HIS HONOUR: Okay. I doubt that that will have to make a difference to all of the submission timing anyway. All right. Just working through the minute with which we have been provided. What I propose to do is to change order 3 to put in 8 July. That is for the filing of the special case. Order 4 will stand. Order 5 will be the special case book. That is 8 July as well. Order 6 will become 29 July for you to file your written submissions, Mr Ellicott, and defendants by 5 August, interveners by 10 August, plaintiffs in reply by 17 August, that is paragraph 9, defendants in reply to interveners 17 August. Then liberty to apply and costs be costs in the cause. If there is no difficulty with those, I will read those orders into the record.

1. The plaintiffs to file and serve a further amended writ of summons on or before 1 July 2009. The amendments to be in the form of those in annexure A to the short minutes of order.
   
2. The defendants file and serve any amended defences on or before 8 July 2009.
   
3. The first defendant file and serve the special case as agreed between the parties on or before 8 July 2009.
   
4. Upon filing of the special case, the special case to be referred to the Full Court for hearing.
   
5. The first defendant file and serve the special case book on or before 8 July 2009.
   
6. The plaintiffs file and serve their written submissions on or before 29 July 2009.
   
7. The defendants file and serve their written submissions on or before 5 August 2009.
   
8. Any intervener file and serve its written submissions on or before 10 August 2009.
   
9. The plaintiffs file and serve any written submissions in reply on or before 17 August 2009.
   
10. The defendants file and serve any written submissions in reply to any interveners on or before 17 August 2009.
    
11. Liberty to the parties to apply on three clear working days notice.
    
12. Costs today be costs in the cause.
    

Now, we have not got the parties to Arnold here, but is there anything you would wish to say, Mr Ellicott, as to the order in which we should deal with these matters? Your case first and Arnold second or the other way round, bearing in mind Arnold, of course, is judicial review?

MR ELLICOTT: Your Honour, the view we take is that it could take longer if the two cases are heard together.

HIS HONOUR: We are not proposing to hear them concurrently, I do not think. I think we are looking at consecutive hearings.

MR ELLICOTT: If they are consecutive hearings, we have no problem with that, your Honour, as long as this matter comes first.

HIS HONOUR: We will have to decide that. Yes, Mr Solicitor.

MR GAGELER: Your Honour, we would also take the view that this matter should come first. These are fairly large constitutional issues and they are better explored, in our submission, in the context of some concrete facts.

HIS HONOUR: I think it is desirable obviously to have the two of them listed consecutively in any event because we will have all these interveners turning up for both. The question is whether we can get them done within the space of one week or whether it has to run over. What is your estimate, Mr Solicitor?

MR GAGELER: Three days, your Honour.

HIS HONOUR: Three days. We might look at starting, subject to discussions with my colleagues, on the afternoon of 24 August, which is the Monday, I think, is it not? Yes. All right. Does that accord with you, Mr Ellicott, in terms of the time estimate?

MR ELLICOTT: Yes, your Honour. As far as the matters are concerned, this is possibly an informal suggestion, but it would be desirable that at least counsel for the appellants in Arnold’s Case could be present at some time or no doubt have access to the transcript, otherwise I am thinking more of a matter that is more of concern to your Honour and that is the time factor of having to go over argument that has been dealt with in our case if it goes first.

HIS HONOUR: Yes, well, it may be that we can deal with that by communication with them and, of course, it may be also that you can, in talking with your – you will be in both appeals.

MR GAGELER: I will be in both.

HIS HONOUR: You may be able to talk with your counterpart in Arnold, Mr Ellicott.

MR ELLICOTT: Yes, your Honour.

HIS HONOUR: Mr Kirk, are you happy with that estimate of time?

MR KIRK: Yes, your Honour. I agree with what both my learned friends have said. As I understand Arnold, there are two issues essentially, what might be called the Pye v Renshaw issue which arises in this case and a section 100 issue which does not arise in this case.

HIS HONOUR: That is right.

MR KIRK: I would have thought the Pye v Renshaw issue was the main issue in the Arnold Case and I agree with my learned friend, Mr Ellicott, has said that it does appear there would be substantial overlap of argument and some way or other it would be most efficient, it seems to me, to try to at least incorporate by reference into Arnold the argument that has taken place in this case. I also agree with what Mr Gageler said that this is the more appropriate vehicle to go first because it raises the full panoply of issues that arise in relation to 51(xxxi).

HIS HONOUR: I think on section 100 actually we referred the special leave application, did we not?

MR KIRK: Yes.

HIS HONOUR: So that is still a special leave application?

MR KIRK: Yes, I think that is right, your Honour.

HIS HONOUR: It would help, I think, if counsel would talk to each other because you are in the best position to know to what extent you are going to overlap and to make some agreements which you could, subject to the Court, save some time in relation to presentation of argument.

MR KIRK: Yes, your Honour.

HIS HONOUR: All right. Thank you very much. They are the orders. We will adjourn.

AT 3.16 PM THE MATTER WAS ADJOURNED