Kuczborski v The State of Queensland [2014] HCATrans 116 (2 June 2014)

Last Updated: 3 June 2014

[2014] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B14 of 2014

B e t w e e n -

STEFAN KUCZBORSKI

Plaintiff

and

THE STATE OF QUEENSLAND

Defendant

Summons for directions

KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 2 JUNE 2014, AT 9.30 AM

Copyright in the High Court of Australia

MR K.C. FLEMING, QC: May it please the Court, I appear with MR R. SIHOTA for the plaintiff. (instructed by Irish Bentley Lawyers)

MR P.J. DUNNING, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with my learned friend, MR G.J. DEL VILLAR for the defendant. (instructed by Crown Law (Qld))

HIS HONOUR: Mr Fleming, where are we?

MR FLEMING: Thank you, your Honour. We have delivered a response to our learned friend’s outline. There still remains an issue between us in respect of standing. There has been some conversation between my learned friend and myself. I am not sure that we will be able to add anything to what we have said except perhaps to expand the law somewhat when it comes to the point of being argued. There are two ways that we might be able to handle it. The first is that the standing becomes the first issue to be determined by the Court on a full hearing or our learned friend might have an alternate proposition to that.

HIS HONOUR: Mr Solicitor.

MR DUNNING: Thank you, your Honour. Your Honour, we read, obviously with care, our learned friend’s submissions and plainly there are issues we see differently in relation to whether the question is fit for determination or not. We would think that the most expedient manner, including in respect of the Court’s time, is for us to bring a strike-out application in respect of the statement of claim. That will clarify before one judge those issues that are controversial as to whether there is standing or not and ensure that the case that then goes to the Full Court is one that is apt to be considered by that Court. Naturally, if your Honour sees it as our learned friends would suggest as possible as in Williams that the – sorry Williams (No 1) I am talking of – that the question of standing might be - - -

HIS HONOUR: Question No 1.

MR DUNNING: Question No 1.

HIS HONOUR: Of the questions referred.

MR DUNNING: Yes.

HIS HONOUR: I must say it is a case where, looking at it only very superficially as I have, I immediately acknowledge, that the question of standing is rather bound up with the substantive questions in the sense that the argument about the interference with Mr Fleming’s client’s liberty is itself something which touches on the question of his standing.

MR DUNNING: I understand that, your Honour.

HIS HONOUR: The extent to which his liberty is interfered with.

MR DUNNING: That does not really seem to be the issue that is most in controversy in the sense that whilst we think that as formulated there are some issues regarding that aspect of it, there are some other issues like the implications for the Copyright Act that we just do not relevantly see arising. It is really those issues that we are concerned with because otherwise there are really a number of questions that would need to be dealt with as a preliminary question, but in a sense we are in your Honour’s hands. As I said to your Honour on the last hearing, we accept that laws of this kind are laws that properly must be scrutinised so we are not seeking to avoid that.

HIS HONOUR: An aspect that also – I mean I must say I take your point about the range of laws that are attacked. It certainly seems to raise many issues or seeks to raise many issues where questions of standing start to appear a little remote or the possibility of standing starts to appear a little remote.

MR DUNNING: Yes.

HIS HONOUR: Having looked at the statement of claim though, and I do not mean this as a criticism, but there seems to be little area for factual dispute because the statement of claim is largely assertions of legal conclusions. It did occur to me that it may be an area where the possibility of agreement about necessary facts is rather strong, that there would be, so far as the facts of the case are concerned, there might be a case where there would not be a lot between the parties which might facilitate a stated case and referral questions in relation to which the question of standing could be the first question. That might indeed be the most efficient way of dealing with the litigation rather than dealing with a strike-out by a single judge and a possibility of appeals from that with a view to trying to have the matter resolved, bearing in mind that there does not appear to be much in the statement of claim that could be factually controversial.

MR DUNNING: No. We would readily accept what your Honour has just posited. The way our learned friends have framed their case is effectively to say there are a series of legislative enactments that say this, they mean that.

HIS HONOUR: That affect the liberty of Mr Kuczborski.

MR DUNNING: That is right and, in effect, QED, they affect the liberty of Mr Kuczborski. Now, so framed, as your Honour rightly points out, there is little by way of factual controversy that the case framed that way might provoke.

HIS HONOUR: Mr Solicitor, I have to say my principal concern is that the matter not wallow in interlocutory skirmishes.

MR DUNNING: Of course.

HIS HONOUR: I wonder whether the matter might not be more efficiently, and certainly more promptly, determined if the parties were to discuss terms of a draft stated case bearing in mind that there does not seem to be a lot of factual dispute. Now, it might be that someone wants some facts in that the other party would require to be proved although, looking at the statement of claim, that is hard to see really. I imagine it is not controversial that Mr Fleming’s client is a member of the Hell’s Angels.

MR DUNNING: We are not here to gainsay that. If he volunteers he is, well he is.

HIS HONOUR: Yes, and that being so, there would at least appear to be a prospect that his liberty to do things that he would otherwise be disposed to do as a member is affected. So while there might not be standing to challenge all the laws he seeks to challenge, in some respects the case is strongly analogous to Croome v Tasmania.

MR DUNNING: There are certainly analogies there, your Honour, and the reason, both today and previously, we have not taken a more combative stance to it is we recognise that. We recognise particularly in respect of that 60A through C in the Code, whilst we might have some complaints about the characterisation of it, the effect of the law as to a person who is a member - - -

HIS HONOUR: It is – and once again I am not making any criticism of anybody – the dispute is as to the characterisation – and when I say argumentative I mean it in the best possible sense – the argumentative nature of the propositions in the statement of claim.

MR DUNNING: Yes.

HIS HONOUR: They are really arguments about legal character of the legislation rather than assertions of fact that would normally attract denial or admission in a defence.

MR DUNNING: Yes, and, your Honour, might I say our principal concern was not to allow what we saw as issues about whether standing exists or not to go unspoken until we got to the Full Court - - -

HIS HONOUR: Yes.

MR DUNNING: But then for the Court to say well, we are concerned about a case like this before us – whether standing is an issue.

HIS HONOUR: Let me just ask Mr Fleming about this.

MR DUNNING: Of course, your Honour.

HIS HONOUR: Mr Fleming, as I have said, my principal concern is that the matter not get bogged down in interlocutory skirmishing and that matters that are ripe for determination are determined. On the other hand, matters that are not really ripe – and it has to be said your statement of claim fires a lot of shots at a lot of laws - - -

MR FLEMING: Yes, your Honour.

HIS HONOUR: - - - where your client’s interest in the validity or otherwise of those laws is, to say the least, arguable or perhaps tendentious, it would be, I think, desirable in terms of managing the litigation if the parties were able to agree on facts sufficient to raise the questions that really need to be decided in terms of the validity of the VLAD Act and to, if possible, refer those on a stated case – refer precise questions on agreed facts and one of those questions might relate to standing but the others might relate to validity as well – to a Full Court as soon as possible. When I say as soon as possible, I am not being too ambitious in saying that it would be very desirable if that could be done before the end of the year.

MR FLEMING: Yes.

HIS HONOUR: So, my present inclination is to inquire of you and the Solicitor, whether it would not be possible over the next couple of weeks, for example, to agree upon the factual basis that is necessary for the case to go forward – I mean as I say there does not seem to be any question about your client’s membership of the organisation or the possibility that his liberty to act as he was otherwise intent to do is affected by these laws.

Now, one way of dealing with that, if we were proceeding with a strict pleading approach, would be for your client simply to allege that he intends to do certain things, which he has not yet done. It may be enough for him to say that he may not do certain things that he would otherwise do,

such as meeting his friends for a drink and so forth, meaning his fellow club members for a drink.

MR FLEMING: That could certainly be done quickly, your Honour.

HIS HONOUR: One would have thought that there would not be much – or that the respondent would be disposed to dispute the factual accuracy of those claims and that would be sufficient, I would have thought, to provide the factual basis necessary for questions of law to be referred.

MR FLEMING: Thank you, your Honour. We can attend to that.

HIS HONOUR: Mr Solicitor, can I ask, does that sound something that would interest the respondent?

MR DUNNING: Yes, it would because really by doing it in that way it is another way of addressing the concern we have hitherto expressed. You have – you will identify controversy. You will say – sorry, you will identify a scenario and say that the law will operate on it in this way, at least that is what we will contend to my friends and that is unconstitutional.

HIS HONOUR: Yes, and very much in the State’s interest to have this shadow that has been cast over the validity of its laws resolved quickly.

MR DUNNING: Undoubtedly.

HIS HONOUR: It is very much the Court’s concern that it be resolved quickly.

MR DUNNING: Yes.

HIS HONOUR: So what I am minded to do this morning, subject to argument to the contrary, is to adjourn the matter – and my view would be to adjourn it until 23 June – in the hope and expectation that the parties would return on 23 June with an agreed set of facts and agreed questions that could then be made the subject of a stated case. Mr Fleming, no doubt, on your side you will look closely at the questions you wish to raise in terms of the laws you wish to challenge.

MR FLEMING: Yes, we will, your Honour.

HIS HONOUR: On the basis that there is a lot of wisdom in the old saying about “Sufficient unto the day is the evil thereof” - whatever that means. But I think what it does mean is you only need to look at challenging the laws that actually adversely affect your client in an immediate sense. I appreciate that that also encompasses your client’s business.

MR FLEMING: Yes, indeed. Thank you, your Honour.

HIS HONOUR: Rather than simply his liberty to consort with whomever he chooses.

MR FLEMING: We do not oppose such an - - -

HIS HONOUR: Mr Solicitor, is that not too pious a hope?

MR DUNNING: I do not believe it is pious at all, your Honour.

HIS HONOUR: Very well. On that footing then, I would adjourn the matter till 9.30 am on 23 June and I reserve today’s costs.

MR DUNNING: Thank you, your Honour.

HIS HONOUR: Those are the orders I will make. Adjourn the Court, please.

AT 9.44 AM THE MATTER WAS ADJOURNED