Brown & Anor v The State of Tasmania [2016] HCATrans 271 (14 November 2016)

Last Updated: 17 November 2016

[2016] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H3 of 2016

B e t w e e n -

ROBERT JAMES BROWN

First Plaintiff

JESSICA ANNE WILLIS HOYT

Second Plaintiff

and

THE STATE OF TASMANIA

Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO HOBART

ON MONDAY, 14 NOVEMBER 2016, AT 9.39 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC: If the Court pleases, I appear with my learned friend, MR C.J. TRAN, for the plaintiffs. (instructed by FitzGerald & Browne)

MR M.E. O’FARRELL, SC, Solicitor-General for the State of Tasmania: May it please the Court, I appear for the defendant. (instructed by Office of the Solicitor-General (Tas))

HER HONOUR: Yes, Mr Merkel.

MR MERKEL: Your Honour, we apply by our amended summons for the demurrer in the amended summons. Your Honour will have seen a second amended summons, I hope, on Friday night which was issued which deals with the two questions. One is the question of standing and one is whether the allegations about trespass disentitle the plaintiffs to invoke the implied freedom.

HER HONOUR: I do not know that we have seen that, Mr Merkel. The last thing that I have on the file is the defendant’s submissions, which were filed on 11 November. Do you have it, Mr O’Farrell?

MR O’FARRELL: Yes, we received that late on Friday night, your Honour. Perhaps - - -

MR MERKEL: Could I hand it up?

HER HONOUR: Yes, Mr O’Farrell.

MR O’FARRELL: It might be – if I can cut the proceedings a little short, we have had an opportunity to look at the amended reply and demurrer and, your Honour, we would be content for the amendment to be made, and thus forward the orders in paragraphs 1 and 2 – well, all of the orders in the summons to be made, your Honour.

HER HONOUR: Well, it would be good if I had a copy of what I am supposed to be looking at. I do not think the Court has got it, Mr Merkel.

MR MERKEL: Sorry, your Honour. I will hand up a copy.

HER HONOUR: How was it provided to the Court, Mr Merkel?

MR MERKEL: I think it has been issued – it is in the mail, your Honour. Here is the letter - - -

HER HONOUR: It is in the mail?

MR MERKEL: Sorry, it was emailed, I think, your Honour.

HER HONOUR: Just so that I am clear, Mr O’Farrell, can I just have a chat to you?

MR O’FARRELL: If your Honour please.

HER HONOUR: You accept that the amendment to the plaintiff’s amended reply and demurrer to the defendant’s defence should be made.

MR O’FARRELL: Yes, your Honour.

HER HONOUR: And what are the orders that you are now – is this in relation to the summons of 9 November?

MR O’FARRELL: Yes, your Honour. As I understand it, the amended summons would – or the amendment to the summons would simply be made in order to substitute the new amended reply and demurrer.

HER HONOUR: Yes, I am just trying to make clear I understand what are the orders that you say you now are happy to be made.

MR O’FARRELL: Paragraphs 1, 2 and 3 of the summons, your Honour.

HER HONOUR: That is the demurrer be referred to the Full Court for its determination?

MR O’FARRELL: Yes, your Honour.

HER HONOUR: Can you just explain to me how you understand that the factual matters would go forward?

MR O’FARRELL: Well, your Honour, as I understand it, the factual matters would be forward on the defence as pleaded; that is, paragraph 41 which takes up paragraphs 28(a) to 28(e) and 38(a) to 38(ah) and 38(c) of the defence, your Honour, which are the relevant pleadings about the plaintiffs having been trespassers on the coupe, the forestry coupe.

HER HONOUR: So, Mr Merkel, do you understand that – I just want to make it clear that the parties are at one about what is the actual factual basis upon which you are going forward.

MR MERKEL: Yes. Your Honour, the - - -

HER HONOUR: Do you accept – the matter is going forward on the basis that your clients contend that they were trespassers on the coupe. Yes or no, Mr Merkel?

MR MERKEL: Your Honour, we agree to the matter going forward on the basis of the facts pleaded - - -

HER HONOUR: No, no, I understand that.

MR MERKEL: - - - which are that - - -

HER HONOUR: No, no, I just want a straight answer to my question because I do not think – I wonder whether the two of you are on the same page.

MR MERKEL: Yes. I think we are, your Honour.

HER HONOUR: So are you agreed that it is going forward on the basis that you are trespassers on the coupe?

MR MERKEL: Your Honour, we do not – we are prepared to assume all the facts pleaded, which the State say under the Forestry Management Act makes us trespassers on the coupe. We are assuming the fact pleaded that we were trespassers on a closed road and that on those assumed facts, your Honour, the two questions that Tasmania raise in their defence, that we do not have standing, we do not have an entitlement to invoke the implied freedom, can be argued on those assumed facts. The only issue which we have uncertainty about is that we accept all the facts pleaded but Tasmania have argued that being on the coupe makes you a trespasser - that is a question of construction of the Forestry Management Act - but we were on the coupe and we were on the road as pleaded for the purposes of the demurrer and we say that does not result in the two consequences Tasmania wishes to put forward.

HER HONOUR: But the way I understand this would be – this would be the whole matter going forward, not just the question of standing.

MR MERKEL: Well, we understand that the demurrer raises only two questions – standing and whether a person who is a trespasser, as alleged, as a matter of fact, is entitled to invoke the implied freedom. That would mean only that part of the case goes forward. The case involving whether or not the Act infringes the implied freedom would be left for another day. Can I say this, your Honour, we have been - - -

HER HONOUR: It sounds awfully hypothetical to me at the moment.

MR MERKEL: Your Honour, can I say this? We have tried as best we can to get agreement on the special case and - - -

HER HONOUR: Well, that has failed, so ordinarily it would be remitted.

MR MERKEL: Only because, your Honour, Tasmania has not agreed to go forward on the special case on the assumed fact that we were trespassers as claimed, which would mean that if that ultimately were found to be an issue on which the outcome of the case turned, the question of whether we were or were not a trespasser would be remitted. But the implied freedom itself and whether that defence is available we wished to go before a Full Court.

If we cannot achieve that, your Honour, then we say that the demurrer does produce that consequence at least of having those two issues which are of importance determined by a Full Court. If we have standing and we are entitled to invoke the implied freedom, we would expect once those two issues are out of the way there would be no problem on getting agreement on a special case.

HER HONOUR: Well, the Court is not going to do it twice, Mr Merkel. You have got a choice. This is the problem. This Court is not going to entertain this matter twice - it will entertain it once – and at the moment we do not have agreement on the factual basis which underpins it. That is my concern.

MR MERKEL: Your Honour, until my learned friend announced a few moments ago that he is prepared to consent to it going forward, we had not been aware of that. It may be that if we could have the matter stood down so we can have some discussions with him - because we are of the same view as your Honour, we wish to see it go forward at one hearing before a full High Court because it is an important issue which does not - - -

HER HONOUR: I will tell you what my concerns are. They are really threefold. First of all, I am gravely concerned that this matter is hypothetical for this reason. The past conduct is conduct for which these people were ultimately arrested, detained, charged, prosecuted, no evidence led, proceedings dismissed. There is nothing about the current activity or the future activity because we do not know where they are going to be or in a sense what is going to be done. So that is, in effect, out of the equation.

So we are back in relation to conduct which has already been determined and we have got no agreement on the facts. I wonder whether or not the cause of action is the right cause of action. I understand you want to rely on the implied freedom, but it seems to me to be a complaint about the way in which the Act has been administered by the police and by the prosecutors.

I must say, I am very concerned that this matter goes forward once and it goes forward on a proper agreed factual basis. I think it might be better if I stand the matter down and you have a chat to Mr O’Farrell. We will leave the link open. I will ask the Court staff, at least my associate, to leave so you can have a frank discussion. But I do not at the moment understand how it is that this matter can go forward in the way it is even proposed by both of you, and I do not actually know you are on the same page.

MR MERKEL: Well, your Honour, the time would be appreciated, but on the matter your Honour has raised with me, this is very similar to the issues that arose in Wragg’s Case, your Honour, where the section 92 regulation was repealed and a locus standi argument was put to the Court and the way it was rejected, but the way it was expressed by Chief Justice Dixon – this is at 88 CLR 371 – his Honour said:

We do not propose to say anything to tie our hands in the matter but probably all of us are impressed with the view that really what is at issue is whether what has been done can be repeated.

There is no doubt that this Act will be relied upon again and there is no doubt that there will be further protests, so the question is - - -

HER HONOUR: I accept that, Mr Merkel. My problem is I do not have a factual foundation to go forward which is concrete, and it seems to me to be – the Court will not entertain the application twice. It will entertain it once.

MR MERKEL: Yes.

HER HONOUR: And remitter of factual matters is either going to be determined by a court and resolved properly or the two of you are going to have to come to some agreement pretty quickly. I will stand the matter down and you can have a chat to Mr O’Farrell.

MR MERKEL: Thank you, your Honour.

HER HONOUR: Adjourn the Court.

AT 9.50 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.15 AM:

HER HONOUR: Mr Merkel.

MR MERKEL: Your Honour, the time has been helpful, subject to what your Honour might say. We will seek to reach agreement if we can on a special case on all of the relevant facts, no assumed facts, this week. We would ask if the matter could be listed at a convenient time next week to your Honour, and we would expect either we would be able to go forward or have a remitter if we cannot agree.

HER HONOUR: Good on you. What day would you and Mr O’Farrell like to come and see me?

MR MERKEL: Monday or Tuesday would be fine with us, your Honour.

HER HONOUR: You may choose.

MR MERKEL: Monday.

HER HONOUR: Is that all right with you, Mr O’Farrell?

MR O’FARRELL: Yes, your Honour

HER HONOUR: Are you sure?

MR O’FARRELL: No, I am not sure, your Honour, but I will make it all right.

HER HONOUR: Well, why do I not do this? I will make it 9.30 am on Monday and if you get back to your office and you need to change it, you can ring and speak to the Deputy Registrar after you have spoken to Mr Merkel and we will adjust it.

MR O’FARRELL: Thank you, your Honour.

HER HONOUR: Is that all right, Mr Merkel?

MR MERKEL: Yes, thank you, your Honour.

HER HONOUR: All right, I will adjourn until 9.30 on Monday.

MR MERKEL: Thank you, your Honour.

HER HONOUR: Thank you. Adjourn the Court.

AT 10.16 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 21 NOVEMBER 2016