|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Last Updated: 16 December 2014
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S302 of 2014
B e t w e e n -
INDEPENDENT COMMISSION AGAINST CORRUPTION
Applicant
and
MARGARET CUNNEEN
First Respondent
STEPHEN WYLLIE
Second Respondent
SOPHIA TILLEY
Third Respondent
Directions hearing
FRENCH CJ
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 12 DECEMBER 2014, AT 2.13 PM
Copyright in the High Court of Australia
MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MR S. ROBERTSON, for the applicant. (instructed by Crown Solicitor (NSW))
MR A.R. MOSES, SC: If your Honour pleases, I appear with my learned friends, MR T.G. HOWARD, SC and MS R.L. GALL. (instructed by Cockburn and Co)
HIS HONOUR: Yes, Mr Kirk.
MR KIRK: Your Honour should have before you, I hope, a summons seeking expedition filed on 11 December, in support of that an affidavit of Mr Roy Waldon sworn on 10 December - - -
HIS HONOUR: Well, the difference between you seems to be March and April, I think.
MR KIRK: I think it comes down to that.
HIS HONOUR: Yes, all right.
MR MOSES: And the question, your Honour, of undertakings that we seek - - -
HIS HONOUR: Yes, I understand that as well. Yes, all right. In terms of timing that is what - - -
MR KIRK: Shall I turn to that directly, your Honour?
HIS HONOUR: Yes, please. First of all, can I just ask you this? There is no draft notice of appeal on the file yet, as I understand it.
MR KIRK: No, there is not. We have proposed short minutes of order, if I might hand a copy to your Honour, and the first order – actually one of the first orders would be that we file the draft notice of appeal on Monday, but I can indicate to your Honour that subject to anything your Honour says it will reflect precisely the terms of the special leave application, save that it will be drafted as a draft notice of appeal.
HIS HONOUR: Yes. Well, I wondered whether there was really anything necessary beyond ground 2 and the rest was rather argumentative. It is a point of statutory construction, is it not, that you are taking on - section 8(2) – and you say they got it wrong.
MR KIRK: Yes, that is right. Ground 2 captures the nub of it. Ground 3 was meant to be - - -
HIS HONOUR: Really, everything argumentative is just a distraction.
MR KIRK: If it please the Court. Ground 2 is all we need to raise the central issue, your Honour.
HIS HONOUR: Yes, all right. So you would be in the position of – well, you can file that almost before you leave the Court – but Monday?
MR KIRK: Monday.
HIS HONOUR: Yes.
MR KIRK: Does your Honour want to hear me in relation to the issue of March or April?
HIS HONOUR: Well, first of all can we get on to the question of – the undertaking as to costs issue?
MR KIRK: Yes. That is raised most clearly in my learned friend’s written submissions at paragraph 3.8. Does your Honour have that?
HIS HONOUR: You had a contingent costs order, order 5 I think from the Court of Appeal, so if you did nothing then costs would follow the event in the ordinary way. But you are going, as I understand from an affidavit I have seen – Mr Cockburn’s affidavit, that you are going for each party bear their own on the basis that they lost some.
MR KIRK: Yes, in essence, and in relation to that can I make these brief submissions just dealing with – that is actually the first two undertakings at paragraph 3.8a and b, and so leaving aside c for the moment - - -
HIS HONOUR: This is on your proposed order, is it?
MR KIRK: No, sorry, in my learned friend’s written submissions, your Honour, at paragraph 3.8 they set out the three undertakings they seek. Really, a and b go together.
HIS HONOUR: Yes.
MR MOSES: I can provide your Honour with our short minutes of order which attach the undertakings.
HIS HONOUR: That would be helpful, too, thanks.
MR MOSES: There are two copies of it.
HIS HONOUR: Thank you, yes. Yes, go on, Mr Kirk, I am sorry.
MR KIRK: Yes, your Honour. The effect of the undertakings sought in a and b is to, in effect, we would respectfully submit, interfere with the Court of Appeal’s resolution of the costs issue. The court’s order enabled an application to be made in relation to costs within 14 days and, as your Honour has gathered, we proposed - - -
HIS HONOUR: Well, if you did not make any application there would be no need for a consent order because the order would be self-executing, would it not?
MR KIRK: That is true, your Honour, but the Court of Appeal saw an issue there to be resolved and made that order. The Court of Appeal may accept our submissions - it may not – if we are able to make them. But that is a matter appropriately dealt with by the Court of Appeal and, in our respectful submission, it is not appropriate for the respondents to seek to in effect tie our hands in relation to completing the Court of Appeal matter and see where the costs fall there.
HIS HONOUR: Well, the worst that could happen to the respondents is no order as to costs in the Court of Appeal.
MR KIRK: Correct.
HIS HONOUR: The best is that they get the costs.
MR KIRK: Yes, that is right.
HIS HONOUR: I suppose you would at least undertake, would you, to not seek to disturb whatever order for costs is made in the Court of Appeal?
MR KIRK: Well, that raises the issue at 3.8c and there can I put a primary and alternative submission? Our primary submission, which I will put briefly, is that these proceedings were commenced by the respondents in private interest, not in public interest. It was always foreseeable that we may end up in this Court, one side or t’other. Of the four judges who have heard the matter, it has been a split two/two and this is a matter that in any event can be the subject of argument before the Full Court. So, in our respectful submission, first, this is not one of those cases where that special undertaking should be given. That is my primary submission.
HIS HONOUR: Yes.
MR KIRK: If needs be - - -
HIS HONOUR: Secondary submission?
MR KIRK: If needs be, however, the Commission would be prepared to give that undertaking. I do note in relation to the wording of 3.8c – I am not sure if it is picked up in the short minutes proposed by my learned friends – but they say “nor seek to disturb the costs order”. A better wording would be “any costs order favourable to the respondents made by the Court of Appeal”, because that leaves open if there will be any such costs order.
HIS HONOUR: Well, it seems to me, Mr Kirk, that this is a matter which the Commission seeks to pursue in relation to the discharge of its functions, not only in this matter but in, as it puts it, a variety of other investigations, and that it is appropriate in that case that it offer the undertaking that is made in 3, and I cannot obviously force the Commission to offer an undertaking, but I can say that - - -
MR KIRK: I understand.
HIS HONOUR: I can attach conditions to any referral.
MR KIRK: Your Honour need not say any more. Subject to suggestion, and ultimately not even subject to that, my client is prepared to offer an undertaking along those lines.
HIS HONOUR: Yes. I will hear from Mr Moses on the first issue. It is not immediately apparent to me why you should be required to make any undertaking not to try and deal with the costs issue in the Court of Appeal or that in item 2, but perhaps we can just deal with that issue separately and then we can get that out of the way one way or the other.
MR KIRK: Yes, if it please, your Honour.
HIS HONOUR: Mr Moses.
MR MOSES: Your Honour, in respect of the matter of costs to be dealt with before the Court of Appeal, the question of costs, your Honour, was reserved in the Court of Appeal on our application. It was not as if the Court of Appeal foresaw a potential deviation from the usual course - - -
HIS HONOUR: Well, in fact, it made a contingent order. It was not just a reservation.
MR MOSES: No, that is correct, your Honour.
HIS HONOUR: It said you will get the costs unless they make a submission to the contrary.
MR MOSES: No, that is correct, your Honour. Your Honour has quite correctly raised the issue of what the applicant has asserted is the public interest in this matter. We, of course, contend that the decision of the New South Wales Court of Appeal involved an orthodox application of well-settled principles in relation to statutory construction. It has been the applicant that has attempted to elevate the importance of that decision as somehow being linked to inquiries that are completely unrelated to this matter.
They have not yet read Mr Waldon’s affidavit, your Honour, but, in essence, what the applicant has done by way of a media statement is basically assert that it is putting its pen down in respect of writing reports in relation to unrelated inquiries, which he has referred to, and it is not immediately clear why it has chosen to do that where before this Court is a matter far more relevant, being Mr McCloy’s challenge - - -
HIS HONOUR: Well, I am not interested in the position of Mr McCloy’s challenge and really - - -
MR MOSES: But it is important, your Honour, to the question of public interest and why we say that these costs undertakings should be made in the matter.
HIS HONOUR: Well, you are going to get an undertaking in terms of 3 in.....I just wonder what else is necessary. You lived to fight on in the Court of Appeal in relation to what disposition they should make - - -
MR MOSES: We are content to deal with it, your Honour, on that basis. That will, your Honour, feed into the question of whether this is a March or April hearing because there is still an unresolved issue.
HIS HONOUR: Well, I do not see how that affects it at all. We are not going to be talking about costs in the High Court.
MR MOSES: No. There are two unresolved issues, your Honour, in the Court of Appeal, which are costs, and there was an issue about whether we would need to seek orders. We received two hours ago a communication from the applicant that it had erroneously left on its website active material concerning the investigation which would have, on our view, contravened the declaration made by the court, because they said we did not need orders because they would comply with the declaration. We drew that to their attention. That is in Mr Cockburn’s affidavit, your Honour.
HIS HONOUR: Yes.
MR MOSES: We drew that to their attention.
HIS HONOUR: I have read that. There is a letter that says that there has been - - -
MR MOSES: Only today; they said it was an oversight on their part. We find that remarkable, but we reserve our position on that. We want to fully consider it carefully before we determine what further steps need to be taken.
HIS HONOUR: If you need to seek further orders in the Court of Appeal, again, what you have is a declaration. They are challenging the declaration. Ancillary orders go to enforcement. I do not see that that affects the timing of the hearing.
MR MOSES: No. I will go then to the direct two points that go to timing, your Honour. The first relates to the question of the matter that we have raised continuously in this matter, and that is whether the applicant should be the moving party in this matter, based on the Hardiman Case and whether in fact the Attorney-General should be the contradictor. We have taken that up again with the applicant.
We say that is a matter that requires proper consideration. They announced that they would appeal this decision – it is public knowledge, your Honour – within three hours of the Court of Appeal delivering its judgment, and made a sweeping statement to the effect, your Honour, that in essence its whole being was impacted by this decision, which we say is an overkill in terms of its statement. Having said that, your Honour, that matter needs to be properly considered, which we want to take up further. The other issue is - - -
HIS HONOUR: Now, how do you take that up in a way that is relevant to the proceedings?
MR MOSES: In this way, your Honour. In terms of the second issue, we are considering our position concerning a notice of contention. That may requires section 78B notices to be issued in respect of - - -
HIS HONOUR: I notice you made some reference to that. What is the possible subject - - -
MR MOSES: It relates, your Honour, to the section 111 argument that was run. Your Honour will recall from the judgment that it was related to a decision delivered on the same day in ANI by the Court of Appeal. We are not aware of the status of that matter and whether that matter is to be the subject of an application before this Court. That matter, your Honour, raises an identical issue in respect of section 111(3) of the Independent Commission Against Corruption Act, which in effect stipulates on its face, your Honour - - -
HIS HONOUR: Just bear with me for a moment - I am sorry, go on, yes.
MR MOSES: Which stipulates on its face, your Honour, that, in effect, the Commission need not comply with an order of the Supreme Court of New South Wales which was advanced in our case, your Honour, as being should there be any reasons ordered or a statement of reasons ordered by the court pursuant to the Uniform Civil Procedure Rules. That point was raised squarely in the proceedings in the ANI Case. Your Honour may be aware of that decision. That was a set of proceedings brought by a journalist who was the subject of a notice issued by the applicant in these proceedings for the production of certain material - - -
HIS HONOUR: Sorry, can you just take me to the paragraph in the judgment where it was dealt with.
MR MOSES: Yes, your Honour. If your Honours would give me a moment. Paragraph 120 in type, your Honour, is where it gets picked up at page 48, and reference, your Honour, is there made to the way in which the argument was developed before the primary judge. Then, your Honour then goes to page 53, commencing at paragraph 136, a discussion of the point. So, your Honour, that point we wish to give some further consideration as to whether that may or may not be an issue that we will raise. Your Honour, of course, will appreciate this decision has only been delivered recently, so we will need to carefully consider the position.
HIS HONOUR: Well, do we not work in the program - - -
MR MOSES: And that is why we have sought the timetable that we have sought, but also your Honour then gives an opportunity, if it is to be taken up by the applicant in the ANI decision, if they wish to advance a matter there is no point there being multiple applications before the Court. They would then no doubt have an opportunity if so advised to join up with this matter if they were so advised to have the matter dealt with by the Court in the one sitting.
There is no difference, your Honour, really, we would have thought, from the applicant’s point of view between March and April. They have advanced nothing in the affidavit as to what would warrant this matter being dealt with in March as opposed to April next year, nothing at all.
Your Honour is well aware of the authorities concerning expedition because your Honour has dealt with this matter both here and elsewhere and this case would not warrant, your Honour, in effect, an extra four weeks expedition on the material the Court has before it, and April will allow the matter to be the subject of mature consideration by both parties to more properly assist the Court when we come before it in order to argue the matter.
HIS HONOUR: Yes. Yes, go on.
MR MOSES: Your Honour, so that is really what I wanted to say about the difference between March and April, and I do not wish to say anything further, your Honour, about the question of costs. If we get the undertaking as part of a condition for the matters being dealt with together then we are content with that and we will deal with the costs issue before the Court of Appeal when the matter is brought back before that court.
HIS HONOUR: Yes, all right. Yes, Mr Kirk.
MR KIRK: May I deal briefly, your Honour, with the issue of timing. My learned friend has raised only two issues, at least orally, in relation to why it is inappropriate to be dealt with in March. The first is that there is a Hardiman issue. That has been put at both levels below. It has not been accepted at any level below. His Honour Justice Basten, for example, at paragraph 45 rejected the point.
HIS HONOUR: On the basis that the case went to the powers and procedures.
MR KIRK: Precisely. In any event, the remedy for breach of the Hardiman principle, as your Honour would be aware, is a costs issue. It is nothing to do with the standing or the ability to make submissions. It is irrelevant. The only other issue raised was the notice of contention. My learned friends themselves suggest in their proposed orders they put on a notice of contention by 22 December. That does not warrant delaying things until April and in our proposed short minutes of order we have suggested the same thing.
The only relevant addition in that regard is that we have also suggested that if a constitutional issue is to be raised by any draft notice of contention or draft notice of cross-appeal that a 78B notice issue within two days after that, 24 December, so that the Attorneys have due warning. That being so, my learned friends have given no reasons, with respect, as to why it should not be heard in March. The Deputy Registrar has indicated there may be a possibility of hearing it in March.
The matters set out in Mr Walden’s affidavit, with respect, give compelling weight as to the difficulty – right or wrong – that this judgment has created for the Commission and its administration and that has knock-on effects for a wide range of people and a wide range of inquiries both past and present and, in our respectful submission, that gives compelling reason for it being heard in March rather than April.
HIS HONOUR: Now, before I go any further, I suppose we should just put on the record or read the affidavits that are relied upon. You rely upon the affidavit of Roy Alfred Waldon which was sworn - - -
MR KIRK: Sworn on 10 December 2014, though filed on 11 December 2014.
MR MOSES: Your Honour, there are some issues concerning the admissibility of that affidavit. All we would say it we are content for it to be received, your Honour, subject to weight or relevance. Your Honour will see at paragraphs 20 to 22 broad assertions are made but we will leave it at that.
HIS HONOUR: Yes, that is right, I know the difference between an argument and evidence and I am not going to bother to divvy them up on this sort of application.
MR MOSES: I know, your Honour. I know your Honour does.
HIS HONOUR: Then you have got Michael Dalla-Pozza?
MR KIRK: Yes, that is right - - -
HIS HONOUR: 12 December?
MR KIRK: Which was affirmed this morning. I should note your Honour has only been provided with a copy. I have an original, but rather than bother your Honour with it we might file it in the Registry so that it is not - - -
HIS HONOUR: Will you file that this afternoon? Then, on the respondent’s side, I think we have the affidavit of Hamish Matthew Cockburn?
MR MOSES: There is, your Honour.
HIS HONOUR: And the accompanying correspondence which I have read. Thank you.
MR KIRK: I should have added in relation to the reasons for expedition that your Honour would have noted in our written submissions and in the affidavit that there is another matter listed in the Court of Appeal for hearing towards the end of March, being the Duncan matter, in which the same construction issue will arise. Now, no doubt other applications may be made in relation to that - - -
HIS HONOUR: Well, I am sure there are all sorts of contingencies swirling around.
MR KIRK: There are, your Honour.
HIS HONOUR: Just coming back to you for a moment, Mr Moses. When you speak of a notice of contention, do you contemplate any issues other than that in relation to the reasons question?
MR MOSES: There may be. There may be, your Honour, in relation to - - -
HIS HONOUR: I mean we would not be getting into the judicial review grounds.
MR MOSES: No, of course not, your Honour.
HIS HONOUR: There was a question of construction about what amounts to attempting to pervert the course of justice - - -
MR MOSES: That is the point that I was going to raise with your Honour, that we wish to carefully consider that issue further in light of the decision of the court. So that is another matter that we may seek to ventilate in the notice of contention but we have not – as your Honour would appreciate – formed a concluded view in relation to that in light of the decision only being delivered last Friday, and we have an obligation to carefully consider these matters.
HIS HONOUR: Yes. What I had in mind with a view to getting to the March date, subject to the undertakings, was not the timetable that you were given but – and the notice of appeal, obviously, on Monday – and then the applicant’s submissions by 16 of – now, I am just putting this out provisionally at the moment, I am not making an order, you understand?
MR MOSES: Yes, your Honour.
HIS HONOUR: Applicant’s submissions by 16 January, your submissions with any notice of contention by 30 January, and those submissions will then address the question of the notice of contention as well, and I imagine if there were a constitutional case, a 78B would go out concurrently with the filing of notice of contention.
MR MOSES: It would, your Honour.
HIS HONOUR: Then the applicant’s reply, which will deal also with the contention issues coming in on 13 February. Then we would be looking to a hearing on that basis on 4 or 5 March.
MR MOSES: Yes, your Honour.
HIS HONOUR: Now, is there any reason in principle, having regard to the comments you have made about – I do not know that we need to worry too much about the 78Bs if the - - -
MR MOSES: Quite.
HIS HONOUR: - - - that would seem to me to give the Attorneys six weeks - - -
MR MOSES: Well that would be the only concern that I would raise, your Honour, otherwise we are content to meet the applicant’s contentions on those days that your Honour has indicated may be available to take the matter.
HIS HONOUR: Well, it gives you plenty of time, I think. It gives you until the end of January.
MR MOSES: Well, your Honour, we think this is - - -
HIS HONOUR: Depending on how generous your holiday period is.
MR MOSES: Well, not very now, your Honour, but that does not matter. But, your Honour, in terms of - - -
HIS HONOUR: We are all in the same boat, really, Mr Moses.
MR MOSES: No, it is understood, your Honour. There is no difficulty in that your Honour, we will meet it. We think this is a relatively short point that is being raised by the applicant and we think it is misconceived.
HIS HONOUR: That is what seems to me – the short point should not be dominated by all kinds of penumbral issues which may or may not crystallise into something sharper.
MR MOSES: No, well, our focus is, your Honour, to try and get this matter dealt with and finished, rather than continuing to drag on.
HIS HONOUR: I would have thought that is in your client’s interests as well as the other sides’.
MR MOSES: It is. It is, your Honour, and we will comply with those directions that the Court has foreshadowed it would make. We are in a position to do so.
HIS HONOUR: All right. What about you, Mr Kirk?
MR KIRK: May it please, your Honour. We can comply with that. The only issue I would raise in light of your Honour’s suggestion is that if there is a notice of contention it may be that we may need more than five pages in reply to deal with that notice of contention point so - - -
HIS HONOUR: All right, we will - - -
MR KIRK: But I put the ambit claim at 10.
HIS HONOUR: You can put your request for an extension of the page limit through the Registry and we will deal with that as a practical matter.
MR KIRK: May it please.
HIS HONOUR: Obviously, if that means there is some sort of expansion in terms of your submissions you can raise that as well.
MR MOSES: May it please the Court.
HIS HONOUR: Not that I am encouraging it, mind you. Let me just deal with the – formulate some orders now. The orders I will make are in the following terms:
Now, I will just make sure I have this correct, Mr Kirk –
the applicant undertakes that it will pay the respondents’ costs of the application for special leave and the appeal in any event and not seek to disturb any costs order favourable to the respondents made by the Court of Appeal.
You so undertake?
MR KIRK: I do so undertake on behalf of my client, your Honour.
HIS HONOUR: Yes.
MR KIRK: Could I just make one respectful suggestion in relation to order 4?
HIS HONOUR: Yes.
MR KIRK: As a matter of technicality, it appears to us that the issue might actually be raised by a draft notice of cross-appeal rather than a notice of contention, so could your Honour perhaps add those words to cover both possibilities?
HIS HONOUR: Yes, I think that is right, is it not – there is a possibility - - -
MR MOSES: We will give that consideration, your Honour. If your Honour makes - - -
HIS HONOUR: You do not have to, it is just that - - -
MR MOSES: No, quite. If your Honour makes provision for that then we will consider that.
HIS HONOUR: So any notice of contention and any notice of cross-appeal on or before 30 January. Thank you. The Court will now adjourn.
AT 2.41 PM THE MATTER WAS ADJOURNED
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2014/296.html