The Liberal Democratic Party v Commonwealth of Australia [2021] HCATrans 171 (27 October 2021)

Last Updated: 1 November 2021

[2021] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S151 of 2021

B e t w e e n -

THE LIBERAL DEMOCRATIC PARTY

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON WEDNESDAY, 27 OCTOBER 2021, AT 11.00 AM

Copyright in the High Court of Australia
HIS HONOUR: In accordance with the Court’s protocol for remote hearings, I will announce the appearances.

For the plaintiff, MR R. SCHEELINGS. (instructed by Speed and Stracey Lawyers)

For the defendant, the Commonwealth of Australia, presently a conditional appearance, MR B.K. LIM. (instructed by Australian Government Solicitor)

HIS HONOUR: Mr Scheelings.

MR SCHEELINGS: Thank you, your Honour. Your Honour will see the submissions and your Honour would see that there is considerable convergence and interests of forwarding this matter. We have put in a statement of claim today. My client does press ‑ ‑ ‑

HIS HONOUR: Mr Scheelings, I have read all of the materials. I have not yet seen the statement of claim, but I will take the affidavits of Mr Stewart and Mr Rowe also as read. Is the only difference between the parties now the timetabling issues and the question of the amendment of the writ?

MR SCHEELINGS: My understanding is that there is no contention in relation to the writ provided that the extra filigree that is requested by the Commonwealth, namely, specific provisions listed, is then listed in the statement of claim, which I am happy to state will be, but, of course, the amended writ has not been filed yet so it is no trouble at all to add that as well.

HIS HONOUR: I take it you know the provisions you are challenging?

MR SCHEELINGS: Quite. That is so, your Honour.

HIS HONOUR: Yes. So, if we look at the proposed minute of orders that the Commonwealth has suggested, there is no dispute then about orders 1, 2 and 3, I take it, other than the fact that you say that the Commonwealth should file a defence as well?

MR SCHEELINGS: Yes, and I will say something shortly about that. It is ultimately a matter for your Honour, but my client – well, the argument is symmetric in the same way, and your Honour would have seen from the correspondence and Mr Rowe’s affidavit that the Commonwealth wanted to know the case before them because they know in substance, based on the letter at page 41 of Mr Rowe’s affidavit, and they know the provisions in substance, the four provisions listed on that page, which would be copied into the writ and they are in the statement of claim that is coming, but my client is desirous of knowing what the case is that faces them as well and not to have to wait until the Commonwealth’s submissions and to try and infer that from the special case in the meantime. The Commonwealth’s submissions are that that should be easy to infer from the facts in there, but, of course, the ‑ ‑ ‑

HIS HONOUR: What you want is not really a defence. You really want submissions. You know what the response is likely to be and what the nature of the denials will be, but what you really want is the legal response to why it is that there is no application of an express or an implied freedom of political communication here.

MR SCHEELINGS: I think there is a little bit more to it than that, your Honour, in this sense, that, as your Honour knows, to give the example of the second ground which is the implied freedom, that once the Court is satisfied of a burden, the onus of proof switches to the Commonwealth and my client is desirous to know sooner rather than later what the justification is - presumably that is not something that is still being worked out by the Commonwealth – and what the said proportion as to that justification would be. So, there is an element of a counterclaim in a defence in relation to that in constitutional matters. It would not be an onerous requirement on the Commonwealth to do something like that. We are talking a two or three‑page document.

HIS HONOUR: All right. Are there any other matters? There is a difference about the date in ground 4. I think you are suggesting that you only have two days to provide any amendments to the draft special case.

MR SCHEELINGS: Well, these are the Commonwealth’s dates and depending on ‑ ‑ ‑

HIS HONOUR: Yes, the Commonwealth has suggested in order 4 that you have until 17 November. As I understood you only wanted until 10 November.

MR SCHEELINGS: That is so. That was to try and squeeze the orders a bit. If there was a possibility of a hearing before February there is consent but, of course, entirely conditional on the Court being able to accommodate it for February.

HIS HONOUR: Working backwards, I can certainly understand the reasons for expedition, but December is going to be very difficult for a hearing date in any event, and in circumstances where there is no, if I may put it this way, immediate jeopardy to the Liberal Democratic Party, and not
yet any election that has been called, there is no necessity to displace any other matters in the December list, as I understand it.

MR SCHEELINGS: As the Court pleases, in which case the plaintiff is entirely content with the orders – with the dates that remain in the minutes of orders that we are currently looking at.

HIS HONOUR: None of that, of course, is to say that this matter should not proceed with as much expedition from the point of view of the parties as possible because obviously the closer one gets to an election the more important and the more urgent the matters could become. Mr Lim, perhaps I could hear from you in relation to order 3 of the proposed orders for the Commonwealth - why you say that the Commonwealth should provide a defence at the same time as providing the draft special case.

MR LIM: Yes, your Honour. The consideration there is really one of expedition. The date of 8 November is just under two weeks from today’s date, in circumstances where five weeks after the commencement of proceedings we do not have a statement of claim and in order to do that quickly we proposed doing one document rather than two. Facts that we will admit we will include in the draft special case. Facts that we would plead we will also include in the draft special case and, so, in substance, that document will inform the plaintiff of the facts on which the Commonwealth relies and in circumstances where we are undertaking to do that in a very quick turnaround, we thought we would do it in a draft special case rather than in a defence and a draft special case ‑ ‑ ‑

HIS HONOUR: It certainly does add a little work for the Commonwealth but, of course, the Commonwealth is going to have to know its case or its defence in any event to produce the special case. One benefit that Mr Scheelings, I think, rightly points to of having a defence is that the special case might not spell out in sufficient detail precisely what it is that the justifications are that the Commonwealth relies upon. In those circumstances I think it probably would be more useful, although I accept that it would be slightly more onerous on the Commonwealth, to provide at the same time as the draft special case a defence.

MR LIM: If it please the Court.

HIS HONOUR: Unless there is anything further that the parties wish to raise, the orders that I make are:

1. The plaintiff have leave to amend the writ in the form attached to the submissions filed in this directions hearing, save that the relief claimed should identify the impugned legislative provisions.

2. On or before 27 October 2021, the plaintiff file and serve a statement of claim.

3. On or before 4.00 pm on 8 November 2021, the defendant provide to the plaintiff a draft special case and a defence to the plaintiff’s statement of claim.

4. On or before 4.00 pm on 17 November 2021, the plaintiff provide to the defendant any amendments to the draft special case.

5. The parties are to confer in relation to the draft special case.

6. On or before 4.00 pm on 24 November 2021, the plaintiff is to file and serve the special case that has been agreed between the plaintiff and the defendant or inform the Court that no agreement has been reached.

7. If no special case is filed according to order 6, the parties file and serve short submissions of no more than two pages as to the next steps that they contend are appropriate on or before 4.00 pm on 26 November 2021.

8. The proceedings be listed for further directions at 10.00 am Brisbane time on 29 November 2021.

9. Costs be in the cause.

10. The parties have liberty to apply on one day’s written notice.

Anything further?

MR SCHEELINGS: No, your Honour.

MR LIM: No, your Honour.

HIS HONOUR: Thank you both. The Court will adjourn.

AT 11.10 AM THE MATTER WAS ADJOURNED