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Wilkie & Ors v The Commonwealth of Australia & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance Mathias Cormann & Anor [ 2017] HCATrans 152  (11 August 2017)

Last Updated: 14 August 2017

 [2017] HCATrans 152 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M105 of 2017

B e t w e e n -

ANDREW DAMIEN WILKIE

First Plaintiff

FELICITY JENNIFER MARLOWE

Second Plaintiff

PFLAG BRISBANE INC

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

MINISTER FOR FINANCE

Second Defendant

TREASURER

Third Defendant

AUSTRALIAN STATISTICIAN

Fourth Defendant

ELECTORAL COMMISSIONER

Fifth Defendant

Office of the Registry
Melbourne No M106 of 2017

B e t w e e n -

AUSTRALIAN MARRIAGE EQUALITY LTD

First Plaintiff

SENATOR JANET RICE

Second Plaintiff

and

MINISTER FOR FINANCE MATHIAS CORMANN

First Defendant

DAVID KALISCH

Second Defendant

Applications for interlocutory injunction

KIEFEL CJ

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 11 AUGUST 2017, AT 3.30 PM

Copyright in the High Court of Australia

MR R. MERKEL, QC: If your Honour pleases, I appear for the plaintiffs in the first matter, M105 of 2017. (instructed by Public Interest Advocacy Centre)

MS K.M. RICHARDSON, SC: May it please the Court, I appear with my learned friends, MR J.S. EMMETT, MS S. PALANIAPPAN and MR G.E.S. NG, for the plaintiffs in M106 of 2017. (instructed by Human Rights Law Centre)

MR S.P. DONAGHUE, QC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with my learned friend, MR B.K. LIM, for the first to fourth defendants in M105 of 2017 and for both defendants in M106 of 2017. (instructed by Australian Government Solicitor)

HER HONOUR: Yes, thank you, Mr Solicitor. Dealing first with the matter M105, Wilkie v the Commonwealth, I see that the parties have agreed that an interlocutory injunction hearing would not be necessary if an expedited date was given for hearing and that the Statistician offers an undertaking in the following terms - that in the event that the matter can be heard before 12 September:

The Statistician will undertake to the Court that he will not request or direct any elector to fill up and supply a form or to answer a question for the purpose of collecting the statistical information as required by the impugned Direction before 12 September 2017.

The affidavit of Mr Hunyor filed today, I take it accommodates the Commonwealth’s concerns expressed in paragraph 9 of its submissions, Mr Solicitor?

MR DONAGHUE: That is so, your Honour.

HER HONOUR: Thank you. Are the parties in that matter agreed that there are no other questions of fact necessary for the decision? Mr Merkel, I have in mind in particular whether there will be any facts necessary to the question of urgency. It is not apparent to me how the question of urgency is going to be resolved without reference to any facts at all.

MR MERKEL: I think, your Honour, the facts relied upon in making the particular determination are set out in the explanatory statement and the matters set out in Mr Hunyor’s affidavit. We will be filing - on the directions we have agreed, subject to your Honour’s orders and directions, to file any further material upon which we would wish to rely by the 15th and that is when our evidence will close.

We agreed that the evidence we will be putting in will be no more than direct quotes or transcripts of statements made by members of the government and we would say that on the arguments that we would be putting on whether the Minister’s state of satisfaction was validly formed reasonably or in accordance with law, would be able to be determined on those facts but we stand or fall on that submission, your Honour.

HER HONOUR: I see.

MR MERKEL: And on that material.

HER HONOUR: The parties are agreed that the proceedings are suitable for referral into the Full Court in their present form?

MR MERKEL: Your Honour, they are, subject to one matter. We considered in the directions it may be more appropriate considering we will be filing affidavits on Tuesday and my learned friend the Solicitor’s clients will file affidavits by Thursday, that it would be referred formally on the completion of the filing of the material, but we do not see any problems either way and as far as we are concerned it could be referred today, your Honour.

HER HONOUR: Yes, I see. I see in paragraph 4 of the proposed directions that it envisages consent minutes for the order to be referred. That is, of course, if there is no other matter which arises which makes that inappropriate.

MR MERKEL: That is how we approached it, your Honour.

HER HONOUR: Yes, I see. What time estimate do you have for a hearing?

MR MERKEL: Your Honour, we have discussed that amongst ourselves. We thought probably over a day but no more than one and a half days, given that the second matter has an added issue that is not raised in our case and we do not know what interventions there may or may not be by other parties but I think it would be fair to say a day to a day and a half.

HER HONOUR: So the day and a half takes account of the one issue that you think should be taken out of M106?

MR MERKEL: That is the way it is being put forward by the Commonwealth - - -

HER HONOUR: Yes.

MR MERKEL: - - - and we have no problem with that but that is a matter not for us to address. It is matter for the other parties to address, your Honour.

HER HONOUR: Yes.

MR MERKEL: That is how we have approached it but I have not talked to my learned friend, Ms Richardson, about dates so she would be better placed to put a time limit on that aspect of her case, your Honour.

HER HONOUR: Yes, thank you. Ms Richardson, do you agree, as the Commonwealth suggests, that there is only one issue added to M105?

MS RICHARDSON: In my client’s case?

HER HONOUR: Yes.

MS RICHARDSON: It is difficult for us to ascertain, your Honour, because the 105 case – the way the grounds are pleaded, it is not clear to us the extent of difference or overlap in relation to ground 1. We have two grounds. The first is impugning the validity of the determination on the basis of the question of statutory construction as to the scope of the power in section 10 to make an advance to the Minister. We apprehend that that is not a ground currently taken in the 105 case, but we submit that is a narrow question that would not take significant court time and the Solicitor-General has already indicated that the Commonwealth may be willing to demur to that part of our case.

HER HONOUR: Then the matter proceed as a stated question of law on the pleadings.

MS RICHARDSON: Yes.

HER HONOUR: So it is the second ground that expenditure is not unforeseen - questions have been raised about whether that is appropriate to be determined without further evidence?

MS RICHARDSON: Yes, your Honour. I have spoken to my learned friend, the Solicitor-General, about that today. We say that that could be dealt with in very narrow terms in a similar way to the question of urgency in the ground raised in the M105 action would be dealt with. In terms of the objection that has been taken to references to matters that might attract parliamentary privilege and so on, that is a matter that can be readily dealt with. They are not matters that we positively plead. They were just put in particulars to put, in a sense, the basis upon which we pleaded certain matters. So we would be happy to amend our pleading just to clarify that they are not matters that we rely on.

The particular factual matter – there are two factual assertions that we make in our statement of claim. The first is relevantly paragraph – so your Honour will see at – our pleading in relation to the expenditure being not unforeseen. The matters at 25 through to 31 are matters of public record and I do not understand the Commonwealth to take any objection to those.

In relation to paragraph 32, that is an allegation that the government sought legal advice about a postal plebiscite on same-sex marriage as early as March 2017 and your Honour would understand that the essence of our case in relation to the power under section 10 is that at the last day upon which it was practicable to provide for an appropriation in the Appropriation Act – then a bill – was 9 May.

HER HONOUR: Yes.

MS RICHARDSON: So we are proving, or seeking to prove matters in existence prior to 9 May.

HER HONOUR: So steps taken rather than the content of any advice?

MS RICHARDSON: Yes, your Honour. So we say – now, we have referred in particular (a) to the fact that an official from the Attorney-General told – well, I will not repeat it, but it is a basis upon which we pleaded the fact that the Finance Department had in fact sought legal advice from the Attorney-General’s Department about a postal plebiscite. We say the fact of seeking legal advice is not something that attracts a privilege per se and that we are entitled to plead that. In terms of factual contest, it is a simple factor for the Finance Minister, who is the first defendant in our action, to plead yes or no whether that advice was sought.

Similarly, in paragraph 33, we plead that the Finance Minister expressed knowledge of and support for a postal vote plebiscite as early as March and we refer to comments attributed to Mr Dutton and Senator Cormann that they were pushing for a postal plebiscite in March of this year and various sources there. So, again, the Finance Minister being a defendant to this action, it is, we say, a simple matter for instructions to be taken from him as to whether he admits that or denies it.

So we apprehend, given that it appears to be a matter of public record, that the Finance Minister was canvassing support for a postal plebiscite as early as March that that would be a simple matter to be pleaded and that the Commonwealth, being a model litigant, there would be unlikely

to be a factual contest about those matters. So, they are the only two matters.

So, in our submission, the appropriate course which could be readily accommodated with the Commonwealth’s proposed directions, which are set out in the submissions filed today, were that instead of a demurrer in relation to our first ground and a different course being taken in relation to the second, rather that the defendants would file a defence in relation to the entirety of our case and that be done in the timeframe indicated in proposed order 2 and then the matter can either proceed by way of special case or it could proceed in the way that the plaintiffs in M105 are proposing to proceed, that we put on an affidavit in a form that is not objectionable to the Commonwealth in the sense of pleading quotes of what people have said.

So, we see ourselves as being in the same position as M105 in terms of readily being able to put forward material in a form that is unobjectionable, whether it is in an affidavit or in a special case. We can certainly have contact with the Commonwealth if there is an aspect of the particulars to our pleading that they have – a concern might attract parliamentary privilege. We see it as superfluous to the main – to the pleading of the fact of advice being sought and so on that we would just delete those particulars if it was going to attract an issue.

So, for those reasons, in terms of the procedural – I am sorry, I should indicate before I go on – if the Court is able to accommodate the parties with an early final hearing we would not need to move on an injunction. That means that we are in the same position as the plaintiffs in M105, that if there is to be an early final hearing that we would be content with that and not move on an interlocutory injunction.

But, if the Court is unable to accommodate an early final hearing, well then we would move on an injunction but we would not do so today. Rather, we would adopt the course proposed by the Commonwealth that that be done via a timetable so that it is done in an orderly fashion in the next week or so. May it please the Court.

HER HONOUR: Thank you, Ms Richardson. Mr Solicitor, your response to Ms Richardson’s suggestion?

MR DONAGHUE: Your Honour, in our submission, focusing just on what I will call the unforeseen part of the case rather than the part that raises a new issue, it appears on the material that has been filed by the plaintiffs in the two proceedings that there is very substantial overlap between the ground 1 in the Wilkie matter in 105 and the unforeseen ground in Ms Richardson’s matter.

The way that the factual foundation for the unforeseen ground in Ms Richardson’s matter has been particularised in the pleadings makes us foresee difficulty in relation to reaching agreement, and some of the reasons for that emerge from the submissions that my learned friend just made.

So that if, for example, one focuses on paragraphs 32 and 33 of the statement of claim in those proceedings, 32 contains, as your Honour has seen, a pleading about the government having sought legal advice. My friend says, well, that is an easy matter to respond to, but what does it mean to say the government sought the advice, who, and advice about what, because to speak of the postal plebiscite in just those terms is, we submit, unhelpfully vague and is not ultimately going to be of assistance because, as has been apparent from public commentary over a number of months, there has been speculation about a variety of different models and different things that might be done.

Ultimately, the legal question the Court will be being asked is a quite specific question about the operation of section 10 of the Appropriation Act, and to know in very general terms that someone sought legal advice about something called in very general terms the postal plebiscite, does not assist, but once one starts drilling down obviously there are contested issues of legal professional privilege that will immediately arise and so we do not feel any degree of confidence that within the kind of expedited timetable the parties are at one end proposing it will be possible to resolve those disagreements.

Further, we submit that there is very little purpose in doing so in circumstances where the same legal argument is going to be raised by another party shorn of that area of disagreement.

HER HONOUR: Mr Solicitor, how do you say it is raised in M105, on which grounds?

MR DONAGHUE: In ground 1, your Honour.

HER HONOUR: Under the question of urgency? You say that that necessarily encompasses the unforeseen aspect?

MR DONAGHUE: As we read the allegation – if your Honour would pardon me a minute while I turn it up – but the allegation is that it does not satisfy the urgent need for expenditure in the circumstances set out in 10(1)(a) or (b) of the Appropriation Act, so we had understood that ground to extend - and Mr Merkel is nodding his head as I say that – to extend to the issue that Ms Richardson is raising.

There are, in our submission, various precedents for this kind of situation having arisen before where multiple parties seek to have a single Judge in this Court refer multiple matters raising the same point into the Full Court. Just by way of example, your Honour will recall the Plaintiff M47 proceeding a few years ago. That was a matter that Justice Hayne referred into the Full Court. Another plaintiff, Plaintiff S138, had overlapping grounds and sought to be referred in at the same time and Justice Hayne refused to allow that on the basis that it just created unnecessary duplication when the same points were being raised.

Ultimately, S138 intervened in the M47 proceeding to raise the one separate point that they sought to bring up. Plain Packaging is another example where there was an agreed special case between one of the parties. The other party sought to have their matters referred in and Justice Gummow refused to do that and, again, the other parties intervened.

So, we submit that in circumstances where there is an obvious need for very considerable expedition in order to meet the timetable that the parties are proposing and real basis to foresee problems in reaching an agreed statement of facts the better course is for only the part of M106 that raises something new to be referred into the Full Court and, as your Honour will have seen from our submissions, we think that can probably be done by way of demurrer. Perhaps it will need to be a defence and demurrer in order to raise some additional issues – justiciability and standing issues – but in essence the point would not require any further facts, so that is how we would urge the Court to proceed.

Could I just say before I sit down, in relation to M105, Mr Merkel’s matter, we very substantially agree with everything that Mr Merkel put to you in agreeing with our submissions. The only point I would add is that, as is familiar in the context of special cases, there is not necessary agreement as to the relevance of everything that will be in the affidavits that are being filed.

HER HONOUR: Yes.

MR DONAGHUE: Often, of course, the special case - we will agree to the facts being put in on the basis that they are accurate with the parties disputing relevance and that would be the basis upon which we would be proposing that the Court proceed here. As your Honour has already seen, the directions contemplate that both parties might file a small amount of further evidence.

Assuming that does not create any problems, and we do not anticipate that it will, then we would imagine that by consent the Court could refer the application to show cause into the Full Court but if there is a

problem obviously we would bring it back urgently before your Honour to work out how the matter should proceed from there.

HER HONOUR: I am just wondering whether the Court should really be shown the affidavit evidence at that point in order to be satisfied that there is not an issue, that there is not a problem, from the Court’s perspective.

MR DONAGHUE: Yes. Well, your Honour, of course, we would be content if the Court would like us to come back, in any event, so that the full body of material is there before the matter is referred, then we would have no objection to that.

HER HONOUR: Yes. Yes, thank you, Mr Solicitor. Ms Richardson.

MS RICHARDSON: Yes, your Honour. We submit that the M106 case should be referred to the Full Court and travel together with M105. Naturally, one would expect that counsel - we will ensure that we are not making duplicative submissions on the same topics - - -

HER HONOUR: Yes.

MS RICHARDSON: - - - and that oral and written time will be divvied up to make sure that there is an efficient use of Court resources.

HER HONOUR: The question really seems to be whether or not there is going to be a problem with the pleadings.

MS RICHARDSON: Yes, your Honour.

HER HONOUR: I mean, the Solicitor is really saying that they are not going to be able to plead to your statement of claim in its present form.

MS RICHARDSON: Well, in my submission, that could be dealt with in short compass by Monday.

HER HONOUR: Would you like an opportunity to reconsider your material and the form of the statement of claim, have a defence and/or demurrer and bring the matter back before the Court?

MS RICHARDSON: Yes, your Honour, but I submit I could indicate today that in paragraph 32 instead of saying “the government” we can indicate it is the Finance Department, because that is what the particulars support, that it was in fact the Finance Department that sought legal advice. So that becomes a very narrow proposition as to whether or not that legal advice was sought.

We can indicate by letter this afternoon to the defendants that that is the amendment we will seek which would mean putting on a defence to that narrow question becomes very straightforward and paragraph 33 is also very narrow in the sense that the Finance Minister is the party from whom he can be asked the question whether or not he expressed knowledge and support for a postal vote plebiscite as early as March 2017.

So they are very narrow matters and if the defendants were to put on a defence we anticipate that there would be very little factual dispute between the parties and our case would in fact be narrower than the M105 case because we would not be dependent on affidavit evidence going to the Full Court and it would only be in the absence or, in effect, a joining of issue with the Commonwealth putting on a defence that there might need to be some narrow affidavit evidence from us and we would put it on in the same way that the M105 case has put it on which is in a form that is unobjectionable to the Commonwealth.

So we submit in a matter of such great public interest, where it is clear that both of these actions have commenced within one day of the Finance Minister taking executive action, that it demonstrates the enormous public importance of these matters and it is apparent that both actions have taken slightly different grounds in terms of how the actions of the Finance Minister are being impugned and that both actions should run together in terms of, particularly in the urgency, giving the Court the full assistance it needs in terms of ventilating the different ways that both cases are put.

The suggestion by the Commonwealth that the second ground in my client’s case be stood over until after the other case is, in effect, in the practicalities of the matter, will mean it ultimately may not be determined in a timeframe that makes it of any relevance because, as the affidavit that we have filed in support of our injunction makes plain, the timetable upon which the government is proposing to proceed with this plebiscite is running so fast that unless our second ground is included in the early final hearing of the matter it, in effect, will not be determined in a timeframe that will be of any pertinence.

So, for those reasons, we submit that there really, on analysis, is no difference in the reasons why the M105 case should go forward, that our case should also go forward. I mean, our case is actually the narrower case. We raise two grounds and it is the M106 case that is raising a whole series of other grounds. In my submission, both grounds should be allowed to go forward. May it please the Court.

HER HONOUR: Thank you.

MR DONAGHUE: Your Honour, might I add one matter?

HER HONOUR: Yes, Mr Solicitor.

MR DONAGHUE: My friend foreshadowed some minor tightening up of the statement of claim but I did not hear her indicate that in paragraphs 32 and 33 the reference to “the postal plebiscite” would be tightened to a reference to “a postal plebiscite conducted by the Statistician or the Australian Bureau of Statistics” and unless the pleading were to be tightened up in that way then there is a factual dispute between us.

HER HONOUR: If it is tightened up in that way?

MR DONAGHUE: If it is tightened up in that way, then there probably is not a factual - it may well be that matters could be readily resolved. In fact, I am confident that they could be but unless it is tightened up in that way then there is a dispute.

HER HONOUR: All right. What I propose to do - I will come back to the directions in this matter - is to only make directions taking the matter forward to the conclusion of pleadings and putting on evidence at this point and then bring the matter back for directions before me and, in that time, the senior counsel and the Solicitor-General can consider the pleadings and have what necessary discussions.

MS RICHARDSON: May it please the Court.

HER HONOUR: I propose that the matter be heard in the September sittings, in the first week of the September sittings, and I will set it down for one and a half days on 5 and 6 September. The directions in M105, reading from the draft proposed by the Commonwealth, are in order save for these amendments. In paragraph 3, it will be necessary to say “on or before 4.00 pm on 16 August” and then paragraph 4 will have the matter listed for directions before me at 4.30 pm on Thursday, 17 August. It should not be necessary to indicate to Mr Merkel that it would be helpful from the point of view of the Court if the statement of claim in relation to ground 1 was amended to make it clear that the unforeseen aspect is also encompassed.

MR MERKEL: Yes, we will do that, your Honour.

HER HONOUR: Thank you.

MR MERKEL: We will do it first thing Monday; we will have it delivered, your Honour.

HER HONOUR: Thank you. I will be in Brisbane and I am conscious that with split screens it is going to be difficult to have multiple directions so we will just have to do the best we can with the technology. In relation to proceedings M106, in relation to paragraph 1, there will now be added to that “and any amended statement of claim and any evidence upon which it is intended to rely” and paragraph 4 will read in similar terms “on or before 12 noon on” - I am sorry, paragraph 3 will read “on or before 4.00 pm on 16 August and paragraph 4 will be that the matter is listed for directions. If there is going to be a difficulty about the technology about having people, I assume that the parties will still be in Sydney and Melbourne respectively.

MR DONAGHUE: Your Honour, in fact I will be in Brisbane on that occasion.

HER HONOUR: Well, that overcomes the problem. There you go.

MR DONAGHUE: It may not, given that Mr Merkel is here and Ms Richardson is there, but it might - if it helps, I will be there.

HER HONOUR: Yes, thank you. Well, I will have that matter looked into. In M106, the other orders will simply be the proposed orders 12 and 13. At the directions hearing the further directions will be made in relation to either a course of referral in or stating a special case. That will be decided at the directions hearing.

MS RICHARDSON: Yes, your Honour. So I understand, is your Honour’s order that order 2 would be the defendants are to file a defence to the entirety of our statement of claim?

HER HONOUR: Yes, yes, I am sorry, those words “to paragraphs 1 to 23” should come out.

MS RICHARDSON: Thank you, your Honour.

HER HONOUR: It goes without saying, this applies in particular to M105 where all of the directions have been made, that the timetable is incredibly tight and the parties will need to adhere to it scrupulously.

MR DONAGHUE: Sorry, your Honour, to rise again but Mr Lim has just highlighted that there is a difficulty with the dates in the early paragraphs of M106 in that I believe your Honour’s amended order 1 to require the amended statement of claim to be served by 12.00 pm on that day.

HER HONOUR: I see, of course.

MR DONAGHUE: We would - - -

HER HONOUR: Yes, of course.

MS RICHARDSON: We could do that by Tuesday of next week, if that is acceptable.

MR DONAGHUE: I think that is currently - - -

HER HONOUR: If you had until Tuesday at 4.00 pm, that is the 15th, would that be sufficient, Mr Solicitor, to file and serve the defence or demurrer?

MR DONAGHUE: If we are getting the statement of claim at 12 noon on the 14th.

HER HONOUR: Yes.

MS RICHARDSON: That is convenient, your Honour. I can indicate that 78B notices have already been served.

MR DONAGHUE: The reason I am hesitating, your Honour, is that I am in fact before your Honour all day on the 15th, so it is going to be difficult for me to settle a document on that day. Could we have until first thing on the 16th? Is that possible?

HER HONOUR: Can we say 12 noon on the 16th?

MR DONAGHUE: Thank you, your Honour.

HER HONOUR: Yes, thank you, the Court will adjourn.

AT 4.03 PM THE MATTER WAS CONCLUDED