Williams v Commonwealth of Australia & Ors [2011] HCATrans 5 (27 January 2011)

Last Updated: 31 January 2011

[2011] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S307 of 2010

B e t w e e n -

RONALD WILLIAMS

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR SCHOOL EDUCATION, CHILDHOOD AND YOUTH

Second Defendant

MINISTER FOR FINANCE AND DEREGULATION

Third Defendant

SCRIPTURE UNION QUEENSLAND

Fourth Defendant

Summons for Directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 27 JANUARY 2011, AT 9.51 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC: May it please the Court, I appear with MR G.E.S. NG for the plaintiff. (instructed by Horowitz & Bilinsky)

MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with MR S.J. FREE for the first, second and third defendants. (instructed by Australian Government Solicitor)

MR J.A. THOMSON: May it please the Court, I appear for the fourth defendant. (instructed by Norton Rose Australia)

HIS HONOUR: Yes. Mr Walker.

MR WALKER: Your Honour has, I think, seen the submissions on directions which have been filed and served by each of the parties. They record a very large measure of agreement, in particular, that there should be an attempt in which we are confident of success to agree on facts to be set out in a special case. Each of the defendants, that is, the Commonwealth defendants and the Scripture Union, have made points in their written submissions concerning, from their point of view, some particular aspects of the matter that will likely be necessary, from their point of view, in a special case and the plaintiff entirely accepts the appropriateness of those comments in each case. Principally, I suppose, it is appropriate to point out that the parties before your Honour also unite in respectfully suggesting that a remitter is not an appropriate course.

HIS HONOUR: Yes, I agree with that. At the moment the Court is holding the dates available on 10, 11 and possibly 12 May, but all of that is contingent upon what you have just been putting.

MR WALKER: Yes.

HIS HONOUR: Are we in the area of proof of constitutional facts?

MR WALKER: The short answer to that has to be yes, though whether that is going to be contentious, we for one, I think, doubt whether that will be so. We will be better able to inform your Honour as to that niggling question after we have tried to agree the facts. As I say, our preliminary view is that it is very likely that most of the facts will be agreed by reference to incontrovertible documents.

HIS HONOUR: Yes. There may be some points that are not facts in the ordinary sense.

MR WALKER: That is right.

HIS HONOUR: That brings into play the sort of considerations Justice Heydon was talking about in Thomas v Mowbray which you are all familiar with in [2007] HCA 33; 233 CLR 307 at 517.

MR WALKER: Yes.

HIS HONOUR: It was dealt with in the particular way in Pape, is it? The Solicitor-General will remember.

MR WALKER: Yes. We are sensitive to it, your Honour, but we think that will be rendered concrete as an issue or not after we have tried to agree things.

HIS HONOUR: All right. Is there anything you want to add to that, Mr Solicitor?

MR GAGELER: No, your Honour.

HIS HONOUR: Mr Thomson?

MR THOMSON: No, your Honour.

HIS HONOUR: It would be best, I think, if the orders were made that defences and demurrers be filed and served on or before 25 February, the plaintiff’s reply on or before 11 March, the defendants’ draft special case be filed and served on or before 23 rather than 25 March.

MR WALKER: Would your Honour make that the first, second and third defendants rather than the defendants?

HIS HONOUR: Yes. Then the matter come back before me on Friday, 25 March at 9.30. Is that convenient?

MR WALKER: Yes, your Honour.

HIS HONOUR: The orders are:

1. Defendants file and serve defences and any demurrers on or before 25 February 2011.
   
2. Plaintiff file and serve any reply to the defences on or before 11 March 2011.
   
3. The first, second and third defendants file and serve any draft special case on or before 23 March 2011.
   
4. The matter be relisted for further directions before me in Sydney on Friday, 25 March 2011.
   
5. Costs of today be costs in the cause.
   

Is there anything else?

MR WALKER: No, your Honour.

HIS HONOUR: We will now adjourn.

AT 9.58 AM THE MATTER WAS ADJOURNED