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High Court of Australia Transcripts |
Last Updated: 23 December 2011
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S399 of 2011
B e t w e e n -
VANN NELLE TABAK NEDERLAND BV
First Plaintiff
IMPERIAL TOBACCO AUSTRALIA LIMITED ACN 088 148 681
Second Plaintiff
and
COMMONWEALTH OF AUSTRALIA
Defendant
Directions
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 22 DECEMBER 2011, AT 9.31 AM
Copyright in the High Court of Australia
MR C.L. LENEHAN: Your Honour, I appear for the plaintiffs. (instructed by Mallesons Stephen Jaques)
MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If your Honour pleases, I appear with MR S.B. LLOYD, SC and MS A.M. MITCHELMORE for the defendant. (instructed by Australian Government Solicitor)
HIS HONOUR: At the moment, the Court would be proposing to hear this and the three related matters in the week commencing 17 April. It looks like three days, I think. Would you agree with that?
MR GAGELER: Two or three, your Honour, yes.
HIS HONOUR: Yes. There are four parties.
MR GAGELER: Yes, possibly some interveners.
HIS HONOUR: Exactly, yes. Anyhow, at the moment, we will reserve three days, I think. That is 17, 18 and 19 April. The question then is how the cases are to be got in the right shape.
MR GAGELER: There have been some discussions between the parties already, your Honour. Subject to the timely provision of some particulars that have been requested – mainly going to the precise identification of the various items of property and the manner in which acquisition is said with precision to have occurred – the proposal is for a defence and any demurrer to be filed by 7 February and a proposed special case served by the defendant at the same time.
HIS HONOUR: Why would it need a special case?
MR GAGELER: The difficulty with simply having a demurrer, your Honour – we have not made a final decision on this – is with the uncertainty or ambiguity as to the scope of the relevant constitutional facts. For that reason there does seem to be some utility in spelling out what we think is the relevant factual compass in a formal document.
HIS HONOUR: Yes. There was a spot of bother in Wurridjal, you will remember, over the use of a demurrer.
MR GAGELER: Yes, and there has been a spot of bother in a number of cases just in identifying the precision of the relevant constitutional facts.
HIS HONOUR: Let me ask Mr Lenehan, firstly, the registrations you are relying on, are they registered in colour?
MR LENEHAN: I believe they are, your Honour, yes.
HIS HONOUR: I have been supplied with photocopies which are in black and white which is - - -
MR LENEHAN: I apologise, your Honour. My copy is in colour. I will rectify that. I am instructed that one mark is registered in colour; the others are not.
HIS HONOUR: Right. That is something that will have to be made clear.
MR LENEHAN: Yes, your Honour.
HIS HONOUR: With the other marks in the other cases, too, I imagine. The second thing that strikes one, if you just look at your pleading at the moment, your statement of claim, paragraph 13. Paragraph 13 says “identifiable and measurable benefits or advantages” and that comes out of the cases, I suggest, that expression.
MR LENEHAN: Yes, your Honour.
HIS HONOUR: Then (a) says “including one or more of the following purposes”. At the moment that cannot be pleaded to.
MR LENEHAN: Yes, your Honour, and we can refine that in the amended pleading that we would foreshadow.
HIS HONOUR: How will it be refined? Can you say that?
MR LENEHAN: The word “including” should go, your Honour.
HIS HONOUR: That will go.
MR LENEHAN: Yes.
HIS HONOUR: So the purposes will be (i), (ii) and (iii).
MR LENEHAN: Yes, your Honour.
HIS HONOUR: Right, and (iii) catches the objects in section 3 of the statute. It is really 3(i), is it? The objects of the Act are:
(a) to improve public health –
and (b) “to give effect” to those international obligations.
MR LENEHAN: Yes, your Honour. We would also draw in 2(b), although that is reflected in – going back to the pleading – 13(a)(i), that is:
making the Government Messages more prominent or discernible - - -
HIS HONOUR: Right, and you also indicated that there were some proposed further regulation to come.
MR LENEHAN: Yes, your Honour.
HIS HONOUR: To replace those that have been in force since 2003, or whatever it was.
MR LENEHAN: There are two further instruments, your Honour. The first, and this instrument has been made, is a set of regulations made under the Plain Packaging Act and that was made on 7 December and we therefore need to refine what is said in paragraph 12. You will see in the subparagraphs in 12 we have referred to certain things happening “unless permitted by the Commonwealth by the making of regulations”.
HIS HONOUR: Yes, I see.
MR LENEHAN: So we need to fix that up.
HIS HONOUR: Bind that.
MR LENEHAN: Your Honour has also referred to the instrument that we have identified in paragraph 8 of our pleading. That is the Trade Practices - - -
HIS HONOUR: Yes, that is right. Now, what is the situation there as you understand it?
MR LENEHAN: As I understand it, your Honour, there is to be an instrument made under the Australian Consumer Law which is to supersede that instrument.
HIS HONOUR: Yes.
MR LENEHAN: There will be a period next year in which both instruments have, to some extent, concurrent operation as we understand it, that is compliance with the former instrument will be deemed to be compliance - - -
HIS HONOUR: Would the new instrument be subject to disallowance?
MR LENEHAN: It would be, your Honour, I believe. I am not sure about that, your Honour.
HIS HONOUR: I had better ask the Solicitor. What is the timetable for the new instrument under the Competition Act?
MR GAGELER: It is expected to be made very soon, your Honour. By that I mean it is a matter of days away, on my instructions.
HIS HONOUR: Right.
MR LENEHAN: Your Honour, the short point about the new instrument is that it will increase the size of the graphic health warnings and in the extrinsic materials that accompany the Act and the regulations it is made clear that this is a suite of measures. So the proposal of the plaintiffs would be to amend their pleading such that it refers to when it is made, the new instrument, and we would remove the references to the old instrument largely.
HIS HONOUR: All right. What is the scope for factual disagreement? There does not seem to be much, does there?
MR LENEHAN: In my submission, very small, your Honour.
HIS HONOUR: What do you say are likely to be the slippery constitutional facts?
MR GAGELER: Your Honour, there will be several layers of response. There will be a response to the effect that the asserted property rights in some respects do not exist, in other respects are not as large as those asserted. There will be response to - - -
HIS HONOUR: They are pure matters of law, I suppose.
MR GAGELER: They are purely a matter of law. There will be a response, once the precise form of acquisition is identified, to the effect that there is no correlative benefit – or the correlative benefit is not of a proprietary nature – the paragraph 13 response – but in addition there is a response to the effect that any conferral of the benefit that would otherwise be capable of characterisation standing alone as an acquisition is in context nothing more than a consequence or an incident of a regulatory scheme.
There is, as your Honour knows, in the cases, some development of that starting with Tooth’s Case, flowing through Justice Deane’s judgment in the Tasmanian Dam Case and then following through in different ways in the judgments in Mutual Pools. Now, the context for that argument will be factual. At some level there will be a need to show a response to – and perhaps a proportionate response – to a public health concern of a relevant magnitude. That should not be the subject of significant dispute but there may be some dispute at the margins.
HIS HONOUR: To what extent will matters like second reading speeches be drawn into this?
MR GAGELER: There will be significant reference to the history leading to the precise formulation of this legislation so there was – that is contained to some extent in the second reading speech, but also in a series of reports and inquiries leading up to the exposure draft of the legislation.
HIS HONOUR: Yes, I see. Yes. It makes it look like a special case.
MR GAGELER: It does.
HIS HONOUR: All right.
MR GAGELER: Did your Honour have in mind making directions, procedural directions, today?
HIS HONOUR: Yes. The difficulty is getting this case to march in step with the other three. This has more to it than the other three, I think.
MR GAGELER: That is, I think, almost right. One of them – I think it is British American Tobacco – pleads various forms of property that are not pleaded by the others. They have put in a reference to designs, patents and copyright as well which, if they persist with that, may add an additional layer of complexity, and potentially factual complexity.
HIS HONOUR: At the moment there is a directions hearing on 24 January.
MR GAGELER: Yes.
HIS HONOUR: Now, it is important that there be a directions hearing before the sittings which start on the 30th, I think.
MR GAGELER: We think it would be necessary to have the directions hearing after the defence and after the proposed special case.
HIS HONOUR: Yes.
MR GAGELER: As I said, subject to the timely provision of particulars, we will be filing the defence on 7 February and we think that a directions hearing in the week commencing, I think, 20 February would be a time when all parties should be in a position to indicate their view as to how the matter should proceed.
HIS HONOUR: Now, the filing and service of Mr Lenehan’s amended statement of claim is contingent upon the making of the new regulations, I suppose. Is that not so?
MR LENEHAN: It is, your Honour, but it is the plaintiffs’ understanding that they are to be made by the completion of this year.
HIS HONOUR: By when?
MR LENEHAN: By the end of this year – Mr Gageler says very soon.
HIS HONOUR: Yes. How soon would you need after these regulations are made in order to amend your statement of claim? Are they in draft?
MR LENEHAN: They are, your Honour, yes. Your Honour, can I just hand up some proposed directions?
HIS HONOUR: Yes.
MR LENEHAN: Your Honour might have seen in the submissions that accompanied - - -
HIS HONOUR: What is the request for particulars going to go on about, Mr Solicitor?
MR GAGELER: A slightly more precise identification of the provenance and scope of the various forms of property that are asserted, your Honour.
HIS HONOUR: Where are they asserted at the moment?
MR GAGELER: I could perhaps cut it short by just showing your Honour the request for particulars, but it is a very short document.
HIS HONOUR: Is there any difficulty in responding to this letter?
MR LENEHAN: No, there is not, your Honour, and the 23rd is well in hand.
HIS HONOUR: How long will you need to serve your amended statement of claim after the making of the new regulation?
MR LENEHAN: Your Honour, assuming that the regulation is made by the end of this year then the date that is proposed - - -
HIS HONOUR: I mean, you already have a draft.
MR LENEHAN: Yes, your Honour, we do. The difficulty is that I do not have Mr Walker back from New York until the 16th and, for that reason - - -
HIS HONOUR: I am sure he is contactable.
MR LENEHAN: We can certainly make inquiries about that, your Honour.
HIS HONOUR: Yes. Anyhow, you have a large team, have you not, apart from Mr Walker?
MR LENEHAN: There is only me here, your Honour.
HIS HONOUR: I do not think we can really be held up by those sorts of considerations. Now, under regulations actually made, what is the step that constitutes the making of the regulations?
MR LENEHAN: Your Honour, I may have led to some confusion about the graphic – what I have referred to as the graphic health warning instrument. As the plaintiffs understand it, it is to be an information standard made under section 134 of the Australian Consumer Law so not in the form of regulation of an instrument made under that section.
HIS HONOUR: Right. That may not be disallowable.
MR LENEHAN: Yes, your Honour, that is right.
HIS HONOUR: I just need the proposed new instrument – section 134?
MR LENEHAN: Yes, your Honour, of Schedule 2 to the Competition and Consumer Act which is referred to as the Australian Consumer Law.
HIS HONOUR: The only directions I will give this morning are:
MR LENEHAN: Thank you, your Honour.
HIS HONOUR: Is there anything else? I will now adjourn.
AT 9.55 AM THE MATTER WAS ADJOURNED
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