Palmer & Anor v The State of Western Australia & Anor [2020] HCATrans 147 (15 September 2020)

Last Updated: 15 September 2020

[2020] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B26 of 2020

B e t w e e n -

CLIVE FREDERICK PALMER

First Plaintiff

MINERALOGY PTY LTD

Second Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

First Defendant

CHRISTOPHER JOHN DAWSON

Second Defendant

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO CONNECTION

ON TUESDAY, 15 SEPTEMBER 2020, AT 2.01 PM

Copyright in the High Court of Australia
MR G.M. WATSON, SC: May it please the Court, I appear with MR R. SCHEELINGS for the first plaintiff, Mr Palmer. We are here together in Sydney. (instructed by Jonathan Shaw)

MR J.A. THOMSON, SC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with MR J.D. BERSON on behalf of the defendants in B26/2020. (instructed by State Solicitor’s Office (WA))

MS J.L. ROY: May it please the Court, I appear for the Premier of the State of Western Australia and the Attorney‑General for the State of Western Australia, from Sydney. (instructed by Clayton Utz)

HER HONOUR: Thank you. Before we proceed with discussion of how this matter might be progressed and the time at which it might start that progression, there is a matter of procedure raised, I think, about whether leave to amend is necessary in relation to the summons and statement of charge. Mr Watson, we are in a territory where the rules do not really extend and so the general power of directions are really necessary to be utilised.

MR WATSON: Yes. We have looked long and hard and we have tried to adapt what we can from the rules to suit the circumstances.

HER HONOUR: Yes.

MR WATSON: Your Honour, may I say this, that we looked at this and we thought about it. It would be free, for us, as we understand the law, to issue a fresh summons with an additional charge in it. We thought that it was better – better organisation and more efficient – to include it in the one document and it is on that basis that we would seek leave to amend the existing document, rather than just, as it were, start with a second summons asking for the same sort of relief.

HER HONOUR: I will hear from the other parties, but these matters of procedure I would not want to take up too much time on because in the end result it is just a question of how to facilitate the challenge which is made to the amendment sought to be effected, which relate to the parliamentary processes. So one either does that by looking at leave to amend or one does it as on a strikeout, but either way, the former might be the simpler way of proceeding. What do you say, Mr Solicitor?

MR THOMSON: Yes, we entirely adopt what your Honour has said. It is either dealt with by way of a leave process or a strikeout procedure, but the challenge is the same and the State has a live interest in the question about whether the ordinary processes of Parliament could ever give rise to a contempt of court and we would rely upon matters of parliamentary privilege in that respect to say that it is a charge which cannot be made if it is not known to law and actually carries other consequences with it as well.

HER HONOUR: Ms Roy?

MS ROY: Your Honour, we were actually seeking to avoid the need for a strikeout application, effectively just looking for a seven‑day adjournment, in effect, to allow the applicants to consider what remedy might be made and also to give us time to consider what remedies we consider can be made to the summons. But if the Court prefers it proceed by way of strikeout ‑ ‑ ‑

HER HONOUR: No, I thought the simplest way would be to adopt the approach of the applicant which is to have them seek leave to amend. The challenges which would be made to the summons and the charge could be dealt with on that basis. But what you say brings us to the point whether this matter ought to proceed at the same time as, or await the outcome of, the section 92 proceeding, the substantive proceeding in which these contempt proceedings have been filed. My preliminary view is that that is what should occur. This would effectively put over any further steps, except for those that the complainant seeks to make by way, say, of affidavits, I would think until either late this year or early next year – possibly late this year. Mr Watson?

MR WATSON: We will submit to the preference and convenience of the Court.

HER HONOUR: Yes, thank you. I understand that is the position for which each of the defendants and the respondents would contend. I do see good reason why the matter should not proceed in any substantive way until after the main proceeding in B26/2020 is heard and determined. I might add to that, in any event, Mr Watson, the only sittings which have not been organised for this year are December, so we are not really looking at any time earlier than that. I think we are looking at the New Year in any event.

MR WATSON: May it please the Court. We understand that there are practicalities which are overwhelming.

HER HONOUR: Yes. Mr Solicitor, is there anything you wish to add to the course which I propose?

MR THOMSON: No, thank you, your Honour.

HER HONOUR: Ms Roy?

MS ROY: No, your Honour.

HER HONOUR: Mr Watson, are there any steps that your client would wish to take? The application for leave will, of course, stand over with further directions as will the application to issue any subpoenas. So unless there is some other step that you would wish to take up in the meantime, I would propose to put all matters over for further directions on a date to be fixed.

MR WATSON: Your Honour, that must be the right course, with respect.

HER HONOUR: Yes, thank you. The only order at this time will then be that the matter, including all outstanding applications, be stood over for further directions on a date to be fixed. Yes.

MR WATSON: Your Honour, one matter before we go ‑ ‑ ‑

HER HONOUR: Yes, Mr Watson.

MR WATSON: If no more than to place it on the record - we do not accept that the State of Western Australia has the standing to appear in this. That is not a problem today obviously, but the fact is that is something we will take up behind the scenes. Although a party to the principal proceedings, the State of Western Australia is not affected by the summons. That is all I wish to say about it today.

HER HONOUR: Thank you for placing that on the record. That will be noted as an issue to be taken up in the next directions hearing. Yes, Ms Roy?

MS ROY: Your Honour, the only matter arising is – I just ought to confirm that there is no need for a personal appearance by either of the alleged contemnors. It is an unusual proceeding, but just on the next occasion that there is no requirement for personal appearance?

HER HONOUR: No, of course not. Thank you.

The Court will now adjourn.

AT 2.10 PM THE MATTER WAS ADJOURNED