Haskins v The Commonwealth of Australia [2011] HCATrans 6 (27 January 2011)

Last Updated: 2 February 2011

Replacement Transcript

[2011] HCATrans 006

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S8 of 2011

B e t w e e n -

ABLE SEAMAN JOSEPH ANTHONY PETER HASKINS

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Summons for Directions

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 27 JANUARY 2011, AT 9.39 AM

Copyright in the High Court of Australia

MR J.G. RENWICK: May it please your Honour, I appear with MR D.H. KATTER for the plaintiff. (instructed by Wyatt Attorneys)

MR S.J. GAGELER, SC, Solicitor-General of the Commonwealth of Australia: If it please the Court, I appear with MR S.J. FREE for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Yes, thank you. Mr Renwick, have you had a chance to notify counsel in the Nicholas matter of the concurrence of your matter, as it were?

MR RENWICK: Yes, your Honour. I had thought he might be here. Indeed, here he is.

HIS HONOUR: Now, looking at this statute, 92 of 2009, you are attacking the validity of which items in the Schedule 1?

MR RENWICK: It is items 3, 4 and 5 but particularly 5(2) which declares:

The rights and liabilities of all persons are, by force of this item –

are effectively to be the same as if you had been convicted by a properly constituted general court martial. The order in question would appear to be referred to in paragraph (1), that is to say the sentence of military detention is a punishment within the meaning of item (1)(a). There is also a Part IV order and then subsequently a warrant of committal.

HIS HONOUR: Looking at Schedule 1 again for a minute, do you engage at any level in your submissions with the validity of item 2(3) which is the reading down or reading up provision?

MR RENWICK: It may well come into play, your Honour. In other words, we say the first issue is proper construction and item 2(3) may cause this to be construed in a particular way and then one gets on to the pure question of constitutional validity thereafter.

HIS HONOUR: Would you then be attacking the validity of 2(3)?

MR RENWICK: No, your Honour, I do not believe so.

HIS HONOUR: This other point that the Solicitor-General has raised, the 51(xxxi), is that in play?

MR RENWICK: In this sense, your Honour. We assume the detention will be admitted. The question then is the lawful authority. We say we have a common law cause of action. If the proper characterisation of this Act is that it acquires that cause of action then we seek to meet that by saying this is an antecedent proprietary common law right and that 51(xxxi) comes into play so in that sense it would, if that is the proper construction of how this Act works. Perhaps it does not apply at all to causes of action of this sort and that would be our primary argument.

HIS HONOUR: Thank you. What is your position on the 78B notice point?

MR RENWICK: Yes, of course, your Honour. I have handed up some short minutes of order which are agreed.

HIS HONOUR: Yes.

MR RENWICK: We are content, of course, to amend the 78B notice, putting it in the way I have just put to your Honour and that will be done subject to your Honour’s orders, in accordance with the timetables.

HIS HONOUR: Thank you. The matter of Nicholas is set down for 29 March to run over to the 30th at the moment. If this matter were linked with that, which would be the prudent thing to do, I guess - - -

MR RENWICK: Yes, your Honour.

HIS HONOUR: - - - that might require some expansion of that time, I suppose.

MR RENWICK: Not beyond the second day, in my submission.

HIS HONOUR: No. It would not be beyond the second day, I do not think.

MR RENWICK: The other point we make in our submissions is we do not imagine the interveners would be interested in our construction point - interveners, if any.

HIS HONOUR: Yes. The States tend to stay away from these particular disputes.

MR RENWICK: Yes, your Honour.

HIS HONOUR: The matter listed for Friday the 1st will not take the whole of that day, I am sure. There is some flexibility in the listing for that week.

MR RENWICK: Yes, your Honour.

HIS HONOUR: Tuesday, 22 February, would that suit? How are you placed, Mr Solicitor?

MR GAGELER: I will not be here but I am sure Mr Free will be, your Honour.

MR RENWICK: Yes, that is most convenient, your Honour.

HIS HONOUR: All right. If everything is then in order I can direct entry for hearing in the March sittings, as have been indicated.

MR RENWICK: May it please your Honour.

MR B. LEVET: Your Honour, might I be heard, too? I am instructed by Kinghan & Associates in the matter of Nicholas.

HIS HONOUR: Yes.

MR LEVET: Your Honour, I certainly have no problem with my friend’s case being heard as quickly as possible. It traverses much the same ground as ours. We would hope that it not be at the expense of our client insofar as at present the matter is listed on the 29th with an indication of a day. My friend in his submissions indicates that - - -

HIS HONOUR: It has been listed for a day and a half, actually.

MR LEVET: Yes, with an estimate put on the last occasion by those at the other end of the Bar table and myself of a day or less. My friend has indicated that he would require an hour and a half or so for addresses and the Solicitor-General’s submissions in this matter indicate that if the section 51 point is taken up that it might well go into the second day.

HIS HONOUR: Yes, that is right.

MR LEVET: Your Honour, that simply is a matter which will impose additional cost on our client.

HIS HONOUR: That may be, but our task is to maintain the Constitution as efficiently as possible and that efficiency is achieved by listing these two matters together.

MR LEVET: Yes, your Honour. I am simply instructed to put my client’s concerns that he is a person without significant means and that that will be a significant impost on him.

HIS HONOUR: Very well. Looking at the short minutes which Mr Renwick handed up, which are agreed, I have amended order 5 to say:

The matter be listed for further directions on 22 February 2011 at 9.30 am at Sydney before me.

I give those directions in accordance with the short minutes I have initialled, dated and placed with the file.

AT 9.51 AM THE MATTER WAS ADJOURNED