Staindl v Frydenberg [2019] HCATrans 235 (21 November 2019)

Last Updated: 27 November 2019

[2019] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

SITTING AS THE COURT OF
DISPUTED RETURNS

Office of the Registry
Melbourne No M96 of 2019

B e t w e e n -

MICHAEL ROBERT STAINDL

Petitioner

and

JOSHUA ANTHONY FRYDENBERG

Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 21 NOVEMBER 2019, AT 9.30 AM

Copyright in the High Court of Australia
MR A. ALEKSOV: May it please the Court, I appear for the petitioner. (instructed by Bleyer Lawyers Pty Ltd)

MR J.C. SHEAHAN, QC: May it please the Court, I appear with my learned friend, MR B.K. LIM, for the respondent. (instructed by Arnold Bloch Leibler Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with MR T.M. WOOD for the Attorney‑General of the Commonwealth intervening. (instructed by Australian Government Solicitor)

HER HONOUR: Mr Aleksov.

MR ALEKSOV: Your Honour, the parties had signed a minute of consent orders last night, I believe, which hopefully has made its way to your Honour, setting out a timetable for the next phase of this proceeding. Other than to embrace what is recorded in that minute, I am not sure how much I can assist your Honour.

HER HONOUR: Maybe all can assist. This petition was filed on 31 July 2019.

MR ALEKSOV: Yes.

HER HONOUR: As you are all aware the Act requires that the Court of Disputed Returns deal with this matter as soon as is reasonably practicable in the circumstances and a long time has passed with not much happening, to be blunt.

MR ALEKSOV: I accept that.

HER HONOUR: I received this morning the consent orders, and they do not really advance the matter much, from the Court’s perspective. This is really directed to Mr Sheahan and to the Solicitor – am I to assume from those consent orders that there is no dispute about the qualifications of the proposed expert, the questions asked and the materials given so that this Court can be satisfied that the matter is progressing in a way that when it comes back in December it is in a position that the Court could even look at it. I raise that for these reasons – at the moment there does not seem to be any advancement of identification of what the real issues are and that consent order does not placate my fears, I must say. Mr Sheahan?

MR SHEAHAN: Your Honour, the consent order, I accept, will not settle your Honour’s concerns about that. There is a question as to whether there will be any significant factual questions. We have only received very recently the material that was sent by the applicant to their proposed expert, who appears to be suitably qualified. They have sent him a set of questions that appear to be reasonably well directed.

As your Honour knows, there are four possible ways for dealing with the matter: being heard entirely by the Full Court, being heard entirely by a single Judge of this Court, some split between those two, or some entire or partial remitter to the Federal Court. This Court’s decision about what is appropriate, and the parties’ views about what is appropriate, will largely be determined by what we get from the petitioner by way of expert evidence and our expert’s response to what we get from them. So the directions ‑ ‑ ‑

HER HONOUR: Just so I am clear about that, is the position that there is no dispute so far as you are currently aware about the questions asked, the materials given and the assumptions he has asked to make that are set out in what I have read in an affidavit filed by the petitioner?

MR SHEAHAN: Your Honour, what I would say about that is that the questions might have been more elegantly framed and more pointedly framed, but they are enough for present purposes.

HER HONOUR: I do not know what that means, Mr Sheahan. The reason why I am concerned is this. Ordinarily, the person who was going to hear it would take control and management of this matter, would actually engage with those very issues in order to minimise the dispute and move the matter on as expeditiously as possible. At the moment I am not in a position to do that and it seems to me that absent confirmation that there is not going to be a dispute the matter should be referred or remitted to the Federal Court to allow them to take control of it and resolve it – that is, to resolve the whole of the thing in context and to move it along in an expeditious manner.

MR SHEAHAN: The observations that are made were only intended to qualify my assent to your Honour’s question in a narrow way, that is to say the questions that have been addressed by the petitioner to their expert appear to us to include the appropriate questions. We think the expert, as identified to us, is appropriately qualified. The materials that have been identified are pertinent. So we think the matter can usefully proceed at this point.

If – I cannot exclude the possibility, to be frank to your Honour – what emerges from the expert will not be helpful for some reason or other – I suppose one can never do that, and I cannot exclude the possibility that in light of what our expert tells us the process that has been gone through with the petitioner’s expert will not have been useful to some extent or another. But we will know the answer to that one way or the other by the proposed
next directions hearing. At that point we will be able confidently to tell this Court whether the matter is suitable to proceed in this Court and if so, under what arrangements.

HER HONOUR: Yes. Mr Solicitor, is your position the same?

MR DONAGHUE: It is, your Honour, subject to ‑ ‑ ‑

HER HONOUR: Do you propose to file evidence?

MR DONAGHUE: No, subject to that point we have not ‑ ‑ ‑

HER HONOUR: That is not what your submissions say, that is all. That is what I got concerned about.

MR DONAGHUE: The submissions do say that, your Honour.

HER HONOUR: No, they do not. They say there is no present intention. It was very well crafted, if I may say so.

MR DONAGHUE: Your Honour, we have not played any part in the factual back and forth between the parties.

HER HONOUR: That is what worries me, to be blunt. That is the point. That is why I asked counsel to consult because now that you are intervening I want there to be no misunderstanding that there is a foundation which is agreed between you. I hear what Mr Sheahan says. Otherwise, I am going to end up with another fight in December and what it really needs is proper management, control and intervention by the person who is going to hear it. So if you have not intervened on the factual basis and you want to make submissions about it then you are going to have to intervene, it seems, at least and make yourself aware of what is going on.

MR DONAGHUE: We have been aware of what is going on, but we have not engaged our own expert and we have been content to proceed on the basis that our intervention would involve the making of – I do not want to rule out the possibility we might play some role if there is a factual hearing, that we might seek to play some role in that hearing, not by way of leading evidence but by way of testing or exploring particular issues. We may not.

Your Honour might recall from some of the other electoral matters that the Attorney has appeared and played a limited role in those factual hearings, but that is the most that we contemplate here. So I do not disagree with anything that Mr Sheahan said. We were content to sign the consent minute on the basis that the position would become clearer by the next directions hearing. It may be that it would become a step clearer still if the orders also included a step for the conferral between the experts for the purposes of identifying specifically any areas of disagreement between them. This Court has made an order like that in both Day and in Canavan where the Court effectively required the experts to ‑ ‑ ‑

HER HONOUR: It is the usual Federal Court practice.

MR DONAGHUE: Yes.

HER HONOUR: Ordinarily, there would be agreement between counsel about the questions, the materials and no dispute about the expertise of the expert. None of that seems to have happened. That is the reason why I have asked the questions in order to minimise the dispute and narrow the issues.

MR DONAGHUE: Yes. Well, if your Honour were minded to add a step like that before the next directions hearing ‑ ‑ ‑

HER HONOUR: I am not minded at all at the moment because I am not satisfied that it should stay here. That is what I am concerned about.

MR DONAGHUE: Yes.

HER HONOUR: I am gravely concerned that this matter should go to the Federal Court where it can be taken control of and put in a position where it can be really managed in a way which brings about the narrowing of the issues and the resolution of the issues.

MR DONAGHUE: Is your Honour contemplating – if I may ask – a remittal on the facts or of the whole thing?

HER HONOUR: The whole thing. I think what is clear from the Court’s history of these matters is that it is sometimes quite difficult to split off the factual from the legal. They inform each other. Having regard to the questions raised, especially by your submissions, there are very much real issues about, in effect, the way in which the facts are looked at by reference to the questions you have raised. So they seem to me at least, as presently advised on the material that has been filed, inextricably linked and not able to be split.

MR DONAGHUE: Accepting that that may well be so, for that reason we submit that the difficulty with remittal is that that is it. There is no appeal back.

HER HONOUR: It is.

MR DONAGHUE: So some of those questions might be left to be finally determined at the Federal Court level.

HER HONOUR: That is right.

MR DONAGHUE: While that might ultimately be the proper course, in our submission it would be preferable if your Honour could stay your hand on that for a few weeks so that we know the answer to the questions that Mr Sheahan identified.

HER HONOUR: The difficulty about that, Mr Solicitor, is this. If we leave it until December, after the 18th, that is, in effect, this year gone. If the matter is then referred to the Federal Court the possibility of getting a directions hearing there is probably not until February which means it is another three months gone with no real control and no resolution of these issues where, if it is referred now, it can be listed, I would have thought, in December in front of that judge and progression made. That is the reality. This has been around since 31 July and no real steps have been taken.

MR DONAGHUE: Your Honour, I do not disagree with that at all. It may be, having heard what your Honour has said, that the parties might be able to move faster on the orders that they have proposed. If that is the price of keeping the matter before your Honour until we see the expert reports, in my submission then it might be appropriate for the parties who are filing evidence to give consideration to whether they can take those steps more quickly so as to get the matter back before your Honour at an earlier date.

But, in our submission, it may be the case that the area of disagreement between the experts is not great. We just do not know at the moment. If that is so, then your Honour might be able to resolve such outstanding issues as there are in an expeditious way and keep the unresolved legal questions in this Court.

HER HONOUR: You have heard what I have said, Mr Solicitor. Mr Aleksov.

MR ALEKSOV: Your Honour, we are less anxious than the other parties for the matter to stay in this Court, so I would not seek to persuade your Honour off the idea of remittal, nor would I seek to necessarily press a course in this Court. We are keen on expedition of this matter. I do not even know the respondent’s expert yet. We have not seen any material of the kind that we have provided to them.

HER HONOUR: Do you know who it is?

MR ALEKSOV: No.

HER HONOUR: Have you seen their questions?

MR ALEKSOV: No.

HER HONOUR: Their materials?

MR ALEKSOV: No, nothing. Your Honour, I do not wish to necessarily say that we have been moving at Speedy Gonzalez’s pace but ‑ ‑ ‑

HER HONOUR: You have not.

MR ALEKSOV: No, I accept that. We have received a return from our expert. We have chased down a few of the little squirrels as one always needs to and we will be ready to file on the 27th.

HER HONOUR: Mr Sheahan, do you wish to add anything to what has passed between me and the Solicitor and Mr Aleksov?

MR SHEAHAN: Just a couple of things, your Honour. Although the matter was filed in July, it was not served immediately so the time between then and now is not as great as appears. The appearance was entered on 10 September. Secondly, in response to something Mr Aleksov just said, we have given the petitioner a considerable body of factual material – I think it is right to say all the factual material that we have available to us relevant to the petition - for them to peruse, use and brief their experts with. It is the same material our expert has. To a significant extent, if there has been delay it has been delay on the part of the petitioner, including most recently in filing their response, which we only got yesterday.

Now, their response is an important document because it addresses what they say in relation to the allegations that we made in response to the petition. So to a significant extent our ability to meaningfully engage with the petitioner has been hampered by the petitioner, that against a background where they have on foot an application to have the matter remitted to the Federal Court which they know we oppose and which the Attorney also opposes.

The respondent strongly supports the submissions of the Attorney that this matter is better dealt with in this Court, if that is ultimately appropriate, both from the point of view of the parties, in particular my client, and also from the point of view of a resolution by this Court of the important questions that might arise in it of law.

Now, against that background the respondent, although we could have done more no doubt, feels that we are put in a position by the applicants where we have been significantly deprived of the opportunity to engage with them in the way we would have liked to and your Honour would expect us to, with the consequence that we lose the opportunity of a hearing in this Court. We would much prefer ‑ ‑ ‑

HER HONOUR: You could have moved, Mr Sheahan - with respect, it required obligation on both sides.

MR SHEAHAN: Your Honour is completely right and we could have moved.

HER HONOUR: So I am not going to deal with it on that basis. As I said to the Solicitor, my real concern is that leaving it until after 18 December necessitates that if the matter is remitted – and on the current materials it seems that that is the most likely cause – you would lose until February or March before you are back before the Federal Court able to push it on even further.

Now, as you know, under the Commonwealth Electoral Act it has to be dealt with as reasonably is practical in the circumstances. This failure to prosecute it from both sides seems to me it puts me in a very difficult position. It is either remitted today or I take a punt – which seems to be the highest it could be put at the moment - and leave it over till December where I face the same problems and it is then pushed off again until February or March in the Federal Court.

MR SHEAHAN: Your Honour, all I can do, I think, to put your Honour’s mind a little bit at ease about that is to undertake that for our part we will immediately engage at a counsel‑to‑counsel level with the Commonwealth and with the petitioner in order to make sure that when it comes back in December it is in a fit state for your Honour.

HER HONOUR: Is there any possibility of bringing forward, as the Solicitor suggested, either the steps taken by you or the petitioner in respect of this material?

MR SHEAHAN: Yes, there is. Subject to translation issues we can have our material on a week earlier.

HER HONOUR: Is that by Monday, 9 December?

MR SHEAHAN: Yes.

HER HONOUR: How long do you need after that is on before it is going to be in a position to have a meaningful directions hearing? This is the problem. I mean, to make a meaningful assessment of all of that evidence, which includes as I read it, both lay and expert evidence, and to be in a position to work out where the issues are is, I would have thought, not a task that can be done in a couple of days.

MR SHEAHAN: It can be done at one level in a couple of days, but perhaps not adequately for what your Honour has in mind.

HER HONOUR: Mr Aleksov, are you stuck with this date of “on or before 27 November”, which is, I know, six days away?

MR ALEKSOV: Your Honour, I think so. We have a weekend and a time difference with Hungary and our expert is working to that date.

HER HONOUR: I see.

MR ALEKSOV: I would be reluctant to cut off any of that time. I would have thought, your Honour, two days from the filing of the respondent’s evidence is a meaningful period ‑ ‑ ‑

HER HONOUR: I would not have thought so, given the issues - I may be wrong – especially having regard to the way in which the Commonwealth has put on their submissions, which I received a few days ago. There are real issues here and I do not want there to be any misunderstanding about it. They have to be resolved and they have to be resolved ASAP really and the question is what is the appropriate forum to resolve them.

MR ALEKSOV: If I might add this then, your Honour, realistically if it is to be more than a couple of days following the filing of the respondent’s evidence the concern that your Honour identified about the matter not coming on before the Federal Court, if it is to be referred, arises anyway. That is pretty late December, mid to late December. The prospects of getting a directions in the Federal Court at that time of year, I think, are pretty small, your Honour.

HER HONOUR: Mr Solicitor, do you wish to add anything to what you have said?

MR DONAGHUE: No, your Honour.

HER HONOUR: Is it the position, Mr Aleksov, that you have had material from the ‑ ‑ ‑

MR ALEKSOV: We have received primary documents, your Honour, as are set out in the respondent’s response but, your Honour, that is, if I might say respectfully, a smaller side of the case. It is the expert material that forms probably the bigger side of this case and I do not know anything about their position on it.

HER HONOUR: You have seen nothing?

MR ALEKSOV: In terms of expert material, no.

HER HONOUR: I think in the circumstances, on the assumption that the respondent can move its material to 9 December, and subject to two further orders, one is that the respondent provide the petitioner in the usual way with its proposed expert questions, assumptions and materials and there is no objection – because I do not want that issue leaving it over – and that counsel will consult prior to a directions hearing being held on Thursday, 10 December ‑ ‑ ‑

MR ALEKSOV: Sorry, your Honour, I think that is a Tuesday – Thursday, the 12th.

HER HONOUR: Sorry, I apologise, I meant to say Thursday, 12 December.

MR ALEKSOV: Thank you, your Honour.

HER HONOUR: I will be in Canberra, so it will have to be by video link - then the matter can be listed for the 12th but my present view, subject to circumstances changing, is that the matter will be remitted because I am concerned about this evidentiary position. If that can be resolved, so be it, but it needs to be resolved in a way which addresses the concerns I have expressed. If there is to be any delay in that timetable then it seems to me it is inevitable the matter will have to be remitted because my expectation is that it would then have to have a directions hearing the following week in the Federal Court to enable it to be pushed on early in the new year. Mr Sheahan, do you have any objection to that course?

MR SHEAHAN: None, your Honour.

HER HONOUR: Do you wish to add anything to that?

MR SHEAHAN: No, your Honour, only that we are grateful.

HER HONOUR: Mr Solicitor?

MR DONAGHUE: Nothing to add, and likewise grateful to your Honour.

HER HONOUR: Mr Aleksov?

MR ALEKSOV: The same position, your Honour.

HER HONOUR: The orders will be as follows:

1. On or before 27 November 2019, the petitioner file and serve all his lay and expert evidence.

2. On or before 9 December 2019, the respondent file and serve all responsive lay and expert evidence.

3. Prior to 12 December 2019, counsel are to consult to identify the factual and legal issues in dispute and to address the future management of the petition.

4. If there is any default, delay or dispute in relation to orders 1 to 3 above, the parties are to immediately contact the Registrar of this Court to have the petition relisted for further directions.

5. The matter be listed for further directions at 9.30 am on Thursday, 12 December 2019.

As I said, I will be in Canberra; it will have to be by video link. Finally, if there is to be any default or delay in this timetable, or objections to be taken – I am not going to make an order for direction of the materials, Mr Sheahan, but I expect them to be provided, in relation to the expert, to the petitioner – then the Court is to be informed of those matters, either the dispute and/or the delay, so that the matter can be remitted to the Federal Court. This matter has to proceed quickly.

Anything else, Mr Sheahan?

MR SHEAHAN: No, your Honour, thank you.

HER HONOUR: Mr Solicitor?

MR DONAGHUE: No, your Honour.

HER HONOUR: Mr Aleksov?

MR ALEKSOV: No, your Honour.

HER HONOUR: Thank you. Adjourn the Court.

AT 9.55 AM THE MATTER WAS ADJOURNED