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High Court of Australia Transcripts |
Last Updated: 29 July 2010
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M101 of 2010
B e t w e e n -
SHANNEN ALYCE ROWE (ON HER OWN BEHALF AND AS A REPRESENTATIVE PARTY)
First Plaintiff
DOUGLAS STEWART THOMPSON (ON HIS OWN BEHALF AND AS A REPRESENTATIVE PARTY)
Second Plaintiff
and
ELECTORAL COMMISSIONER
First Defendant
COMMONWEALTH OF AUSTRALIA
Second Defendant
Directions hearing
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 29 JULY 2010, AT 9.17 AM
Copyright in the High Court of Australia
MR R. MERKEL, QC: If your Honour pleases, I appear with my learned friend, MS K.L. WALKER, for the plaintiffs. (instructed by Mallesons Stephen Jaques)
MR T.M. HOWE, QC: May it please, I appear for the first defendant. (instructed by Australian Government Solicitor)
MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with MR G.R. KENNETT, and MR D.F. O’LEARY for the second defendant. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes, Mr Merkel.
MR MERKEL: Your Honour, can I just indicate that, subject to what your Honour might say, I understand the parties are in agreement about a procedure that would enable this matter to be brought on before a Full Court if your Honour is disposed to refer it to a Full Court.
HIS HONOUR: As at present advised I propose to refer the matter pursuant to rule 25.03.3(b) for further hearing by a Full Court on Wednesday 4 August at 10.15 in Canberra unless any party desires to be heard against my taking that course.
MR MERKEL: I do not understand anyone does, your Honour. Could I take your Honour to the proposed orders of my learned friend, the Solicitor, at paragraph - - -
HIS HONOUR: Yes I have read those. May I raise some questions about the timetable? That timetable would see your submissions go on on Monday, I think, would it not?
MR MERKEL: Yes, your Honour.
HIS HONOUR: I do not think that is likely to be satisfactory. I think we need your submissions on Friday, the defendant’s submissions on Monday, intervener’s submissions on Monday and reply on Tuesday. Now, I know that timetable is very tight, but I think if the matter is to be prepared properly, there is nothing for it but to begin the timetable on the Friday. Now, that would mean that 4.00 pm Friday would be an absolute drop dead deadline for your side’s submissions. Can that be done?
MR MERKEL: Yes, your Honour. The words “drop dead” have a certain incentive about it to make sure that it is done, your Honour.
HIS HONOUR: That is the intention, Mr Merkel.
MR MERKEL: The only thing I think we would need, your Honour, is that the reason why the Monday deadline had a practical necessity to it was the agreed facts need to be finalised. We would ask if your Honour could direct, in paragraph 13.4 of my learned friend’s proposed orders, that the agreed facts and evidence date be 5.00 pm on Thursday the 29th. The difficulty we have is we obviously have to have the evidence and facts finalised so that we can then prepare our submissions by the Friday deadline.
HIS HONOUR: Can I take that rather piecemeal? Does your side of the record propose to adduce any further evidence than the evidence it has already put on?
MR MERKEL: Yes, your Honour, but what the parties have done is rather than rely on submissions, we are seeking to agree on facts.
HIS HONOUR: I understand that.
MR MERKEL: We have had discussions with my learned friend. I should take that back, your Honour. It should be noon tomorrow on the agreed facts, not today. We have had talks with my learned friend, the Solicitor, and we believe there is no problem about agreement of facts or supplementing them with any evidence if there is not agreement. So we do not see a barrier. If noon is okay tomorrow for the parties, then we can reach that deadline of 4.00 pm tomorrow, your Honour.
HIS HONOUR: So the proposal would be any statement of agreed facts, together with any further affidavit to be relied on by any party filed and served on or before 12 noon, Friday 30 July? Is that the proposal?
MR MERKEL: Yes, your Honour.
HIS HONOUR: Now, let me leave aside for the moment the question of whether the action continues as a representative proceeding. That is a separate matter to which I will return. From your side of the record, do you anticipate any further 78B notice being required?
MR MERKEL: No, your Honour. We delivered those on Monday. We do not see any problem with the 78B notice.
HIS HONOUR: The notices given are sufficient. There is no additional issue that needs to be flagged in a 78B, from your side at least?
MR MERKEL: Correct, your Honour.
HIS HONOUR: Yes. Application books. Before the parties leave Canberra today I want the index settled, the index of the application book not the book produced – would that that were possible – but if the index or the contents can be settled today. I do not anticipate that that should be a matter of controversy but if there is to be some controversy about it, I want it out on the table very early today so that it can be resolved, if needs be, today. Because what I am anxious to work towards is a point where application books are available for distribution on Monday in Canberra.
Now, that in turn provokes a series of questions which are to be posed now but need not be answered now. I have three lever arch files of material on the court file which are exhibits to an affidavit file on your side of the record. Is your journey really necessary? Do we need all of those papers? Is an application book to be as voluminous as that? Obviously, much turns on where you get to with your agreed facts, I understand that, but quite plainly there is advantage in having only what is necessary in the application books, but also having everything that is necessary in the application books. I know that is a large task. I know it is a difficult task but I would very much like that to be well under way, content settled today and then with a view to production for distribution in Canberra, Monday. Monday, preferably 12 noon.
Submissions. Well, the proposal I have in mind is plaintiffs Friday, 30th, 4.00 pm; defendants, and this is something that I need to hear from the defendants about, what I have in mind is Monday, 12 noon, because we have the question of interveners. Now, I (a) do not yet know whether there is to be intervention, (b) I do not know if there is to be intervention, in whose interest the intervention will take place, but what I have in mind is interveners to file written submissions on or before 4.00 pm on Monday. So, plaintiff, 4.00 pm Friday, defendants 12 noon Monday, interveners 4.00 pm Monday, reply from your side, if any, Tuesday 12 noon. Now, of course, I recognise how tight that timetable is, but if we are working to a hearing on Wednesday, it seems inevitable.
There are two mechanical aspects that then emerge and which are, in part, going to be directly affected by the agreed facts but not, I think, wholly concluded by them. I am sorry, there are three. First, legislation; the Court must, I think, have available to it legislation in two forms. It must have available to it the Act as now in force in full, not extracts but the whole Act as now in force, but I think, in addition, the Court should have available to it the Act as it stood before the impugned provisions were enacted, so that is before – what is it, the 2006 Act?
MR MERKEL: Yes, your Honour.
HIS HONOUR: I suspect that it would be better if we had the “as was” version of the Act also in full. I know that is a lot of paper, I know it is a lot of copying, but I suspect that we will need both. It may be – and again the defendants can tell me this presently – it may be that the defendants are best placed to produce that and do the requisite copying. There is, I think, an electronic – there is a soft form of the Act as it stands, I think, two days after the election was called – in any event, there is a soft form of the Act that is very recent and presumably that is what would become the print of the Act as is, but the Act as was before the impugned provisions were enacted.
Again, it would be desirable, highly desirable, if those Acts were available no later than Monday. Although it might seem better if they were available tomorrow, I think there are going to be some practicable questions about distributing them, let alone the practical problems of copying them, because, of course, the Court, as ought to be well known, is doing leaves in Sydney and Melbourne tomorrow.
Next practical matter, historical materials. Presumably, one or both sides of this litigation are going to want to refer to historical materials. There is evident advantage if we can end up with what is a single agreed volume of historical materials. I do not know whether that is practical. If it is, it is highly desirable. There is one source to which we then look rather than rummaging around in a series of disparate sources. So in all the spare time which this program will leave to you and those who instruct you, if some attention can be given to that.
Next practical matter, lists of authorities, and this becomes of acute importance if there are things on the lists of authorities that are not being provided by the parties. We have to have those lists by Monday, 12 noon, because if our library is left to pulling things together to meet the needs of the Court, 12 noon, Monday is, again, last chance for that. Can I turn then, Mr Merkel, to this question of representative proceeding. You have seen what has been said by the Commonwealth, that it is better that the proceeding not go forward as a representative action. What do you say?
MR MERKEL: Your Honour, at the moment we would submit that there is no reason why it should not go forward but rather than debate that at this stage, we would propose to incorporate in our written submissions the reason why it satisfies the principles for representative action. We make it quite clear that if, for example, the Court were of the view that notice need to be given, we would then accept that that is not going to occur and, therefore, if the Court, as a matter of discretion, at the hearing determined it as inappropriate as - - -
HIS HONOUR: Why are we getting into this, Mr Merkel? It is a whole set of issues which distract from what I had understood to be the central issues that your side of the litigation wanted to agitate. We have suddenly got ourselves into a procedural imbroglio which is off stage left. Do we need to be off stage left? If we do, we do. But, if we do not, why are we doing it?
MR MERKEL: I think, your Honour, that at the moment we have not been presented with the reason why it adds any layer of complexity, but can I indicate to your Honour that if for any reason at the hearing it gives rise to a problem that - - -
HIS HONOUR: Too late, Mr Merkel. At hearing is too late. This is urgent litigation. We have bumped cases out of the list. The parties are going to be telling us, I assume, that they need an answer out of this Court quickly. Why have we got on the table a set of procedural issues which, on what I know at the present, seem to me unnecessary? Do you really need the plaintiffs to be representing others? Did we not in Pape give some consideration to what follows when a single plaintiff seeks and obtains declarations of invalidity? What are we gaining by getting into a procedural difficulty?
MR MERKEL: Can I just indicate to your Honour this. I do not want to have this as a side issue of any kind. We did ask the Electoral Commission for undertakings that would have the consequence of enabling the matter not to proceed as a representative action, but can I just say this at this stage, your Honour. We do not have instructions to withdraw it as a representative action. As the Electoral Commissioner’s evidence would suggest, there is something like 100,000 people whose rights may be affected by the representative aspect of it. Can I, rather than delay your Honour about it at this stage, say that we are in discussion with our learned friends. If this becomes a distraction, then we certainly do not wish to see that.
HIS HONOUR: Not if it becomes a distraction, Mr Merkel; it is already a distraction. The question is whether that distraction should persist. The difference is radical and important. There is a distraction presented by the representative nature of the claimed formation of classes, whether the classes that are asserted as the requisite classes are appropriately formed. I know originating summons litigation about wills is no longer fashionable, but the hours of innocent amusement that were spent devising classes in such litigation are writ large in the hearts of some of us. I have said what I want to say, Mr Merkel. I will hear what the Commonwealth has to say about that presently and we can, if needs be, return to it, but at the moment it is a distraction. Why should it remain on the table is the question which I think your side of the record needs to consider.
MR MERKEL: Yes, your Honour.
HIS HONOUR: Could I ask you, Mr Merkel, what time you anticipate your side of the record would require to make oral submissions in this case?
MR MERKEL: I think probably three-quarters of a day, your Honour.
HIS HONOUR: So of the order of four hours?
MR MERKEL: Yes, your Honour.
HIS HONOUR: Is there any reason why I should not direct that each party or intervener provide to the Court, and to other parties and interveners, at or before commencement of oral argument on behalf of that party or intervener, a written index of the oral submissions which it is intended to make relating the subjects in that index to the written submissions filed on behalf of that party or intervener, that index not exceeding two pages?
MR MERKEL: Your Honour, given the time constraints and the fact that the preparation will be a continuum, we would say that that may not be the kind of assistance that it might otherwise be because the reality is, your Honour, within this timeframe the oral submissions will take a shape depending upon what is received from the other parties.
HIS HONOUR: That is why delivery of this document of one or two pages is to be at or before the commencement of that party’s oral submissions, that is, as you stand you hand to the Court the index of what you are about to say orally an index that is related to the written submissions.
MR MERKEL: If that is ordered, your Honour, we of course will comply with that.
HIS HONOUR: Yes. Now, the last thing I mention so that the parties might remind me of it, is it will be necessary to have whatever order I make today served on the Attorneys to whom section 78Bs have been given so that they know what has happened and the state of the litigation. Is there any other matter you think I need to deal with or that you seek to raise immediately, Mr Merkel?
MR MERKEL: No, your Honour.
HIS HONOUR: Yes. Now, Mr Howe, do you seek to be heard on any of the matters that I have agitated or on any other matter?
MR HOWE: Only to this extent, your Honour. Firstly, the first defendant sees no difficulty with the procedural steps that have been foreshadowed. Secondly, as to the question of the status of the proceedings as potentially representative proceedings, I am instructed, your Honour, that the AEC undertakes to use its best endeavours to comply with any declaration that is made with respect to the rights of the plaintiff and to apply the law as declared to other persons similarly situated, that is, persons who have lodged a valid claim for enrolment prior to 8.00 pm on Monday, 26 July 2010. So far as the other matters identified, with respect to oral submissions, we do not anticipate playing any sort of active or adversarial role with respect to the issues and we otherwise do not wish to be heard.
HIS HONOUR: Thank you, Mr Howe. Mr Solicitor.
MR GAGELER: Your Honour, dealing with that last matter, the question of the representative nature of the proceedings, there may be some issue at the margins as to precisely who would be appropriately represented within a class, but the real problem is one of procedure. If 100,000 persons potentially are to be affected in their legal rights, at least by an issue estoppel in these proceedings, then it is appropriate as a matter of principle that they be given notice. That is a real problem in having this matter heard quickly as a representative proceeding. It is fundamentally for that reason that we propose in our written submissions that the proceeding not continue as a representative proceeding, particularly in the light of the indication from the Electoral Commission, now in the form of an undertaking, there is no reason why the proceeding needs to continue as representative proceeding even on the plaintiff’s case.
HIS HONOUR: Do I have power, do you say, Mr Solicitor, to determine whether it does or does not go forward as a representative proceeding?
MR GAGELER: There are two ways your Honour can do it, one perhaps harsher than the other. Your Honour could make an order under rule 21.09.1, otherwise ordering, that is, it is entirely a matter of discretion whether a proceeding constituted as a representative proceeding goes forward as a representative proceeding. Your Honour could do that. Your Honour might think another way of achieving substantially the same result less harshly would be simply, in the exercise of your Honour’s discretion, to order that the application be referred to a Full Court, that your Honour only refer the non-representative parts of the application; that is to say, as I see it, prayers 1 and 2, the prayers for a declaration and for mandamus in respect of the two plaintiffs to the Full Court. So your Honour could do it either way. That is the only significant matter I wanted to raise. There is no problem at all with any of the practical matters your Honour has mentioned.
HIS HONOUR: I recognise the pressure that it puts on both counsel and solicitors and parties to fix a timetable of this brevity, but I fear no alternative.
MR GAGELER: We accept that. Can I say this, so far as the Act is concerned, we have already taken it upon ourselves to make sure there are copies available for the Court. They are available today, that is the Act as currently in force. So far as the Act as it stood is concerned, it is Reprint No 10 which is readily available. There will be a need for an agreed volume of historical materials, but what that is is pretty obvious and we will have that done. There will probably also be a need for some comparative materials and that could also be done on an agreed basis. The list of authorities by Monday is fine and there is no problem with an index for oral submissions.
The only thing your Honour mentioned that might cause some slight difficulty would be the application book index being settled by today. The only problem with that is if the agreed statement of facts is to be filed tomorrow. It is only once the agreed statement of facts takes shape that the precise material to be put in the application book will be known. So if your Honour would consider changing that time from, I think it was some time today, to noon tomorrow, the same time as the agreed statement of facts.
HIS HONOUR: I had not intended to make any formal direction about index, simply to stare balefully at the parties and make some “judicial suggestions”.
MR GAGELER: So that was the only concern as a matter of practicality. So far as the argument is concerned, your Honour, it seems to us that much of what might have occurred as legal argument in this case has already been traversed in Roach and we, for our part, will be taking Roach as the starting point. If one adopts the test in Roach, or a version of it, or a variation of it, then the question is largely one of reasonableness or proportionality or the fit between means and ends. That will involve traversing the history and some of the detail, but we do not see the case necessarily taking particularly a long time in oral argument. We would have thought it could be concluded in a day, but we will need to be responsive obviously to Mr Merkel’s argument.
HIS HONOUR: Yes. You said you saw no difficulty about the index, I think, did you not?
MR GAGELER: No, that is correct.
HIS HONOUR: Yes. Well, Mr Merkel, what are we to do about this representative aspect? The Commonwealth asks me to make orders in one form or another that have an effect that it - - -
MR MERKEL: Yes. I think, your Honour, I can take it out of the ring because the undertakings given by the Electoral Commission were the ones that were sought. They have not been given. There would be no need for the matter to proceed as a representative action.
HIS HONOUR: Is there any reason why that undertaking should be an undertaking for the Court as distinct from an undertaking as between the parties? As I heard it stated, it seemed to be an undertaking that the AEC would abide the law, which did not seem to be one peculiarly apposite to be given to the Court that the AEC would abide the law, but do we need to carry it further than the fact that you have heard what has been said?
MR MERKEL: No, your Honour.
HIS HONOUR: So, do you need leave to amend your process and the title to your process?
MR MERKEL: If your Honour can grant it, that would be helpful and we will deliver an amended application today.
HIS HONOUR: So what we would need to do, I think, is amend the title to the proceeding, would we not, by deleting reference in respect of each plaintiff to that plaintiff suing in a representative capacity.
MR MERKEL: Yes, your Honour, and the relief would change. So if you Honour could give us leave to deliver an amended application deleting the representative party claims, and we can do that by 4.00 pm today, that will solve the problem.
HIS HONOUR: Yes. I know that the Solicitor is engaged elsewhere at 10 o’clock. There is just one other matter that I want to raise whilst all counsel are here. If you need to go, Mr Solicitor, you should go at such time as you need.
MR GAGELER: My information was it was 10.15, your Honour. If I am wrong, I suspect - - -
HIS HONOUR: Good luck, Mr Solicitor, I think it is 10 o’clock. Before you go, may I just say this. No doubt the parties have already considered or would, in any event, consider two particular decisions of the Court to which I want to refer, but it may be desirable that I say something about them now lest they not be considered, and I say at once that I am not expecting any answer or any comment of any kind from any party in response to what I am to say.
First, there is the case about the issue of the writs for the Senate. R v The Governor of the State of South Australia [1907] HCA 31; (1907) 4 CLR 1497, particularly at 1513 at the end of the reasons of the Court. Reference is made to the possible intersection between constitutional requirements, in that case the requirements of sections 7 and 15 of the Constitution, and the conferral on this Court of authority to decide questions as a Court of Disputed Returns. Questions of that kind may or they may not arise in this matter when the challenge is founded ultimately upon a proposition that the return that would be made to the writs that have been now issued would not yield Houses of the Parliament that answer the constitutional descriptions in sections 7 and 24. It may be, it may not be, but it may be desirable that some attention is given to whether there is some intersection of that kind in this case and if there is, what, if any, consequences follow?
The second case to which reference should be made is R v Pearce; Ex Parte Sipka [1983] HCA 6; (1983) 152 CLR 254, a case which, like this, concerned the enrolment of electors or the transfer of the enrolment of electors whose claims for enrolment or transfer had been received after the date fixed. I have in mind particularly the matters recorded at page 266 by Mr Justice Murphy where his Honour records what he describes as a practice about the timing of the announcement of an election and the issue of writs at various times. Now, as I say, I expect and seek no comment about that.
If, then, I were to make orders and directions as follows, I will hear counsel then about the form of them.
Mr Kennett, is there any reason why I should not direct the Commonwealth to serve a copy of this order on the Attorneys-General?
MR KENNETT: We are content to do that, your Honour.
HIS HONOUR: Yes.
Is there any other direction – yes, there is. I am sorry. Before the present number nine, there should be directions about lists of authorities.
I should further direct that:
Is there any reason not to direct filing in Canberra?
MR MERKEL: No problem with that.
HIS HONOUR: Be filed in Canberra on or before 12 noon, Monday, 2 August. It is a rather long shopping list. Does any party seek to add to it? Mr Howe?
MR HOWE: Your Honour, I am not sure whether your Honour comprehended as part of order 3 dealing with the filing and service of statement of agreed facts and further affidavits the compendium of historical materials that was - - -
HIS HONOUR: I had not and I had not intended to make a direction that there be such a document. I was content to rely upon what has been said in the course of the hearing and on the evident good sense and co-operation that has already been displayed.
MR HOWE: We are content with that as well.
HIS HONOUR: Yes. The bottom line, as counsel well recognise, is if this matter is to be dealt with, anything that can be done to assist the Court to deal with it will be gratefully received. Is there anything else that counsel desire to raise?
MR MERKEL: Not for our part, your Honour.
HIS HONOUR: There will be orders and directions in those terms. I thank counsel for their attendance.
AT 9.58 AM THE MATTER WAS ADJOURNED
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