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High Court of Australia Transcripts |
Last Updated: 1 December 2023
IN THE HIGH COURT OF AUSTRALIA
Office of the
Registry
Melbourne No M16 of 2023
B e t w e e n -
REHMAT & MEHAR PTY LTD (ACN 640 452 991)
First Plaintiff
GAURAV SETIA
Second Plaintiff
and
ROBERT HORTLE
Defendant
GAGELER CJ
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA AND BY VIDEO CONNECTION
ON FRIDAY, 1 DECEMBER 2023, AT 10.00 AM
Copyright in the High Court of Australia
HIS HONOUR: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.
MR L.R. HOWARD appears for the plaintiffs. (instructed by BTT Lawyers Pty Ltd)
MS R.J. ORR, KC, Solicitor‑General for the State of Victoria, appears with MS R.S. AMAMOO for the defendant. (instructed by Victorian Government Solicitor)
HIS HONOUR: Before I call on the parties, I should indicate that I have read the affidavits and the submissions of the defendant filed on 27 November, together with those of the plaintiff filed yesterday. Without expressing any view at all as to the merits of the application by the defendant for dismissal of the proceeding, what is apparent from those affidavits and submissions is that the facts have changed such that the ground stated in the demurrer no longer reflects the totality of the legal issues between the parties.
The defendant raises issues as to standing, which may or may not go more appropriately to questions as to the utility of the relief that is being sought in the changed factual circumstances, and those issues are sought to be met in part by the plaintiffs relying on an either unpleaded or inadequately pleaded case in tort to which the defendant says that he has non‑constitutional defences. Those circumstances have led me, provisionally, to consider that the proceeding is no longer in an appropriate form to go before the Full Court and that repleading is necessary. With that possibility in mind, I provided the parties yesterday with some proposed directions setting out a sequence of events, but leaving the dates for key events blank. Ms Orr, it is your client’s actions that have brought us to this point. What is your position?
MS ORR: Could I start, your Honour, by passing on the defendant’s acknowledgement that difficulties have been caused in this proceeding by the timing of his decision to withdraw the criminal charges against the plaintiffs, and he is grateful to the Court for its guidance about the appropriate procedural steps that should be taken as a result of those recent developments, and although the defendant demurred to the plaintiff’s amended statement of claim some months ago in a good faith attempt to obtain an efficient resolution of the legal issue in this proceeding, the inconsistency issue, he accepts that in light of the withdrawal of the criminal charges and the factual matters that the plaintiffs now seek to rely on following the withdrawal of the charges, the utility of the demurrer is spent.
That is the defendant’s position. We are
grateful to the Court for the authorities that were circulated yesterday. We
note
in particular the statement of the Court in Bass v Permanent Trustee Co
Ltd that the utility of the demurrer process is:
heavily dependent on the pleadings containing all the relevant facts. When the parties are uncertain whether further investigation will reveal further factual material, the utility of the demurrer is diminished.
As the plaintiffs submitted in the submissions that they filed yesterday at paragraph 9, there are now “a variety of factual and legal matters which are contestable”. So, given that uncertain factual position that has emerged, the demurrer, we say, is no longer an appropriate way of proceeding in this matter.
We do seek leave to withdraw the demurrer, and we accept that there are matters that now need to be pleaded by the plaintiffs and that my client will need to consider whether to file a defence in response to the repleaded matters or to demur, and that those matters need to be resolved before the matter is appropriate for further consideration by the Full Court. So, our position is that the directions that the Court has proposed should be made. We have some dates that we are able to suggest, but it is unclear to us yet whether the plaintiffs agree in those orders, and so perhaps I should wait, at this stage, to see what the plaintiffs’ position is.
HIS HONOUR: Thank you, Ms Orr. Mr Howard.
MR HOWARD: Thank you, your Honour, and thank you for the cases that you sent to the parties last night, which I read this morning. The plaintiffs did consider this issue in response to the defendant’s application, and at the time when we considered that issue, we considered that part F of the amended statement of claim constituted the sufficient concrete situation, if you like, for the proceeding to continue. Has your Honour recently revisited the amended statement of claim?
HIS HONOUR: I have, Mr Howard.
MR HOWARD: Yes.
HIS HONOUR: No doubt that seemed adequate when the real issue was about the prosecutions.
MR HOWARD: The issue pleaded in part F of the amended statement of claim, your Honour, is the issue of the investigation, which we say was invalid, and it is demurred there that the powers were exercised – there are four powers that are demurred. There is sufficient material fact, we thought, about that investigation. Now, it is the case on foreseeability that we say that there is a utility in declaring that investigation, those powers exercised, as valid, because there is, as your Honour has mentioned this morning, tortious cause of action available which would assist – a declaration would assist to facilitate, subsequent to the trial next week.
That was our position leading to your Honour’s email last night, and just for completeness, we do say that the prayer for relief that has been the statement of claim picks up that issue, so the prayer seeks an invalidity declaration in respect of the charges, which has changed, but also the exercise of the powers of investigation leading to those charges. So, there are two concrete platforms in this statement of claim, one was the investigation and the second was the laying of the charges.
If the Court is of the view that what is pleaded in
paragraphs 14 and 15 of the amended statement of claim in respect to
the investigation
is inadequate, then of course we will put more facts to the
Court in respect of that. My trouble is that we are not really sure,
to be
frank, what further facts you require. It is demurred that those powers were
exercised, and until they . . . . . invalid,
and a
declaration is sought in respect of that invalidity. The two cases, which I am
grateful that your Honour has referred me to,
are distinguished by a basis,
for example, in The Commonwealth v Queensland it is recorded there
that:
The statement of claim does not allege or particularise an actual case in which an issue as to the validity or operation of the Queensland Act has arisen for decision.
That is not this case. In Bruce v Commonwealth Trade Marks Label Association, as your Honour will recall, the registration of the trade mark had been withdrawn, there was not a second concrete platform, as it were, however if the amended statement of claim is not sufficient, we, of course, want to assist the Court to make sure that it is. We did not apprehend that, in the usual course, when you are seeking declaratory relief, you need to plead as to material facts for civil consequences. That is not my understanding as to how one pleads material facts, but if the Court requires it, we, of course, will undertake to do that as quickly as possible. That is the position of the plaintiffs.
HIS HONOUR: Thank you, Mr Howard. In circumstances where standing was not previously but is now squarely in issue, it is important that material facts relevant to standing be pleaded by both parties, and on that basis, repleading is appropriate.
MR HOWARD: If the Court pleases.
HIS HONOUR: Now, Mr Howard, what is your position on the proposed directions?
MR HOWARD: I have had a useful conversation with my friend about that. We would seek, in relation to order 4, that we file and serve a further amended statement claim on or before 6 December, which is the second day of the now‑vacated trial. I have not had the benefit of talking further about the dates, and I will let Ms Orr advise you as to the consequences of that.
HIS HONOUR: Thank you, Mr Howard. Ms Orr.
MS ORR: Your Honour, on our calculation, the 28 days from 6 December would take us to 3 January. We would be grateful for some additional time, given the timing of the year that that date falls. We were hopeful that the Court might agree to an order requiring us to either demur or file a defence by 10 January.
HIS HONOUR: All right. If we go on from there, Mr Howard?
MR HOWARD: 24 January would make 14 days, your Honour.
HIS HONOUR: And order 7, Mr Howard?
MR HOWARD: I would only need 14 days for that, your Honour, which would run to 7 February.
HIS HONOUR: I will make the date in order eight 16 February, which is a Friday. It is a sitting day, so I will make it at 9.30 am, and I will put the same date, 16 February, in order 9. Is there anything not covered by those proposed directions that should be, Mr Howard?
MR HOWARD: No, your Honour.
HIS HONOUR: Ms Orr?
MS ORR: No, your Honour. Thank you.
HIS HONOUR: Thank you both. The orders and directions I make are as follows:
Thank you. The Court will now
adjourn.
AT 10.15 AM THE MATTER WAS ADJOURNED
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URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2023/177.html