Williams v Commonwealth of Australia and Ors [2013] HCATrans 311 (13 December 2013)

Last Updated: 18 December 2013

[2013] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S154 of 2013

B e t w e e n -

RONALD WILLIAMS

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR EDUCATION

Second Defendant

SCRIPTURE UNION QUEENSLAND

Third Defendant

Directions hearing

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 13 DECEMBER 2013, AT 9.00 AM

Copyright in the High Court of Australia

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

MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth: May it please the Court, I appear with MR S.P. DONAGHUE, SC for the first and second defendants. (instructed by Australian Government Solicitor)

MR D.F. JACKSON, QC: Your Honour, I appear for the third defendant. (instructed by Norton Rose Fulbright Australia)

HIS HONOUR: Mr Ng, I see you have agreed a special case?

MR NG: We have. Subject to your Honour being satisfied that the special case is amenable to referral to the Full Court, your Honour will have seen from the submissions of the first and second defendants a proposed set of orders which, as I understand it, are the subject of consent between all the parties.

HIS HONOUR: Yes. I just had a couple of questions. Firstly, how do the special case questions engage with the preclusionary pleas which have been raised in the reply? Is that a matter to be subsumed in argument in relation to the first and subsequent questions?

MR NG: Yes, yes.

HIS HONOUR: Secondly, there are a number of facts agreed, I think in paragraph 65 to 73, which go to the benefits – asserted benefits of the chaplaincy service. What issue are they relevant to? There seems to be quite a bit of conclusionary material there.

MR NG: Your Honour will have seen that the preface to the special case indicates non-agreement by the parties to the relevance of everything contained in the special case. The position of my client will be, as I anticipate it, that that material is not relevant, that it is not every program which might be said to advantage students which is a relevant benefit within the meaning of section 51(xxiiiA). No doubt the defendants will take a different position and it will ultimately be a matter for argument and of course determination as to whether or not those are materials which are of any assistance whatsoever.

HIS HONOUR: Yes, well, I might ask the counsel for the defendants to give us some indication about that. The third question is there is, I think, in existence at present a Public Governance Performance and Accountability Act 2013 which subject to proclamation would come into effect on 1 July 2014. Are you aware of what the current status of that is and its effect on the FMA?

MR NG: I know of the existence of that piece of legislation. I have not considered in any real detail its effect upon the FMA Act or, for that matter, the issues in this litigation. That may require ventilation in due course.

HIS HONOUR: Yes, all right, thank you. I will hear from the Solicitor. Mr Gleeson.

MR GLEESON: On your Honour’s second question, the purpose of those paragraphs is to provide a foundation for arguments of law that there is a rational connection between the scheme and the student benefits power. As to the third matter, I am instructed that that legal provision, when it comes into force in the middle of next year, will not alter the effect of these proceedings but I would like to just check that, your Honour, and if that statement I have just made requires any qualification we should do that within seven days if we could. I am told that is the position but I would like to check it.

HIS HONOUR: There is no repealing provision, I think, in the Public Governance Act.

MR GLEESON: No. So in terms of that provision, as we understand at the moment, it does not alter the substratum of these proceedings. Whether other things happen, your Honour, between now and then, I just do not know, but in terms of what is in law that we know of, that is our position.

HIS HONOUR: What is the status of the facts in 65 to 73? They are contested as to relevance, what about as to the assertions that are - - -

MR GLEESON: We understand they are agreed as to their factual content and so as constitutional facts they are before the Court and then relevance is what we will be arguing over.

HIS HONOUR: Yes, all right, thank you. Mr Jackson, is there anything you wanted to add?

MR JACKSON: I do not wish to add anything. It has been said by the Solicitor-General.

HIS HONOUR: Yes, all right, thank you.

MR NG: Your Honour, there is a matter I should ventilate with you. The Attorney-General for Victoria has in correspondence requested the insertion in the proposed orders of a direction permitting interveners supportive of more than one party or none to file and serve their written submissions following the filing and service of the defendant’s submissions.

I have not had the chance to ascertain the defendant’s attitude to that. My client is not opposed. We are, in that regard, entirely in your Honour’s hands.

HIS HONOUR: I am sorry, what would that require?

MR NG: That would, as I see it, require the filing and service by interveners supportive of more than one party or of none of the parties of their written submissions, presumably not exceeding twenty pages, on or before 11 April 2014.

HIS HONOUR: I think the best course would be if Victoria wants to put some submission for a variation of the timetable to accommodate that, they can. At the moment, I do not have anything before that from them.

MR NG: If the Court pleases.

HIS HONOUR: All right, thank you. Now, we have a minute of - - -

MR GLEESON: Sorry, your Honour, could I just raise one practical matter. It does not affect the orders. It is just, in terms of the special case, I understand that the annexures are going to run to five volumes, unfortunately, but necessarily. Could we just liaise with the Registry as to whether it would be helpful to the Court to have a core one volume of the absolutely critical documents the parties will go to? I am troubled five volumes is a bit many.

HIS HONOUR: Yes, and I have not looked at all the documents but particularly if there are documents backing the paragraphs I have mentioned, that may be more of a distraction than an assistance.

MR GLEESON: Part of the problem is there are many versions of the funding agreement of the guidelines and so on and really the Court needs a critical version of the guidelines, a critical version of the funding agreement and three or four documents of that character, perhaps in one volume.

HIS HONOUR: I think that would be a very sensible approach, Mr Solicitor. At the moment, Registry, having made some inquiries of the parties concerning hearing dates, the hearing date range that would seem to suit most is in the week commencing 5 May, so that I will just give an indication that that is likely to be the week in which the hearing will proceed and that I understand there is an estimate of three days from all parties. Now, in terms of the order:

1. The plaintiff has leave to file and serve an amended statement of claim and amended writ of summons on or before 18 December 2013.
   
2. The first and second defendants have leave to file and serve an amended defence on or before 20 December.
   
3. The third defendant has leave to file and serve an amended defence on or before 20 December.
   
4. The plaintiff has leave to file and serve an amended reply on or before 20 December. If, upon the plaintiff filing and serving on or before 31 January 2014, the agreed special case summoned by the legal representatives of parties then:
   

(a) the special case will be set down for hearing by a Full Court on a date to be fixed with an estimate of three days;

(b) the plaintiff file and serve special case book on or before 14 February 2014;

(c) the plaintiff file and serve his annotated written submissions not exceeding 40 pages on or before 28 February 2014;

(d) any interveners file and serve annotated written submissions not exceeding 20 pages on or before 14 March 2014;

(e) the defendants file and serve their respective annotated written submissions not exceeding 40 pages on or before 4 April 2014;

(f) the plaintiff file and serve any annotated written submissions in reply not exceeding ten pages on or before 17 April 2014.

5. There is liberty to apply to a Justice on three days’ written notice.
   
6. Costs of today will be costs in the cause.
   

Yes, thank you. The Court will now adjourn.

AT 9.09 AM THE MATTER WAS ADJOURNED