Queensland Nickel Pty Ltd v Commonwealth of Australia [2014] HCATrans 176 (20 August 2014)

Last Updated: 16 September 2014

[2014] HCATrans 176

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B25 of 2013

B e t w e e n -

QUEENSLAND NICKEL PTY LIMITED

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Directions hearing

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 20 AUGUST, 2014, AT 9.00 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If your Honour pleases, I appear with my learned friend, MR L.T. LIVINGSTON, for the plaintiff. (instructed by MacDonnells Law)

MR D.F.C. THOMAS: If the Court pleases, I appear for the defendant. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Jackson, I have read the outline of submissions by your side and by the defendant. I am minded to give effect to the parties’ agreement in relation to directions. There is one matter that I wanted to raise with you, though.

MR JACKSON: Yes, your Honour.

HIS HONOUR: It arises from paragraph 5 of your written submissions and if I could then take you to questions 2 and 3 in the draft special case.

MR JACKSON: Yes, your Honour.

HIS HONOUR: Am I right in thinking that questions of construction that are referred to will not be bedevilled by any question of findings of fact in relation to the application of the provisions properly construed?

MR JACKSON: We think not, your Honour. We do not see that if the Court got to questions 2 and 3 the Court would be doing more than expressing a view on the facts as set out in the special case. We do not see that there would be bedevilment or bedevilling in the particular case. We would understand the position, your Honour, if the Court took the view that that had happened that the Court would not answer those questions.

HIS HONOUR: All right. Mr Thomas, do you agree?

MR THOMAS: The short answer is yes, your Honour.

HIS HONOUR: Thank you, Mr Thomas. Very well then. Mr Jackson, can I ask you how long do you think the case will take to argue?

MR JACKSON: The case, your Honour, I think would take a day absent intervention. We do not know yet whether the interventions - if there are as there may well be, I think the case would be something less than a day and a half, but would certainly go into the second day.

HIS HONOUR: Very well. Mr Thomas, do you agree with that?

MR THOMAS: I agree with that estimate, your Honour.

HIS HONOUR: Okay. Yes, Mr Jackson.

MR JACKSON: Your Honour would have some short minutes of order which do not have dates in them.

HIS HONOUR: I do.

MR JACKSON: Subject to a question when the matter might come on, might I suggest some dates. We have suggested them to our learned friends this morning and, your Honour, I suspect there may be not a great deal of difficulty about agreement of the parties in relation to them. Could I indicate, your Honour, the first couple of dates we would suggest and that is in the paragraph 1 in the opening part of it, “Upon the plaintiff filing and serving on or before 27 August 2014” - that is the first date we would suggest. The next date would be in paragraph (b) and that is 3 September 2014 for the date of filing and serving the special case book.

HIS HONOUR: And then?

MR JACKSON: Then after that we would suggest in (c) 24 September 2014, in (d) 8 October 2014, in (e) 22 October 2014 and in (f) 5 November 2014. Your Honour, could I say that if the matter were to be listed in the November sittings obviously the last of those in (f) would have to be adjusted backwards a little - - -

HIS HONOUR: Mr Jackson, I am not in a position to aim for a date at that time, proceeding on the footing that that is a case for seven Justices.

MR JACKSON: Yes, your Honour, I understand the potential difficulties.

HIS HONOUR: So, from the Court’s point of view, these directions are satisfactory. Mr Thomas, do you have any observation to make?

MR THOMAS: Yes, your Honour. I would seek an extra week for the defendant to file its written submissions. That is paragraph (e). That would take that date from 22 October to 29 October. We are quite comfortable for the plaintiff to have a similar extension in paragraph (c) and for the interveners to have a similar extension of a week in (d). That is a matter for my friend. But that is the only change I would be requesting to the timetable.

HIS HONOUR: Mr Jackson, that does not seem unreasonable given that it is not going to - - -

MR JACKSON: We have no problem.

HIS HONOUR: Very well. Thank you, Mr Jackson.

MR JACKSON: Sorry, may I just say, so that there is no misunderstanding – my understanding would be that in paragraph 1(d) the date would be 15 October, in 1(e) 29 October and in 1(f) 12 November.

HIS HONOUR: Yes. Thanks, Mr Jackson. On the basis of the submissions that have been made by the parties and having regard to their agreement in respect of the special case, the orders I will make are as follows:

1. Upon the plaintiff filing and serving on or before 27 August 2014 the agreed special case signed by the legal representatives of the parties, then:
   

(a) The special case be referred for the opinion of the Full Court;

(b) The plaintiff file and serve the special case book on or before 3 September 2014;

(c) The plaintiff file and serve its annotated written submissions on or before 24 September 2014;

(d) Any intervener file and serve annotated written submissions on or before 15 October 2014;

(e) The defendant file and serve its annotated written submissions on or before 29 October 2014; and

(f) The plaintiff file and serve any annotated written submissions in reply on or before 12 November 2014.

2. Liberty to apply to a Justice on three days’ written notice.
   
3. Costs of today be costs in the cause.
   

Anything further, gentlemen.

MR JACKSON: No, your Honour.

MR THOMAS: No, your Honour.

HIS HONOUR: Thank you, gentlemen. Adjourn the Court, please.

AT 9.08 AM THE MATTER WAS ADJOURNED