HIGH COURT OF AUSTRALIA

FRENCH CJ

DANIEL THOMAS LEE & ANOR	PLAINTIFFS

AND

COMMONWEALTH OF AUSTRALIA & ANOR	DEFENDANTS

Lee v Commonwealth of Australia
[2012] HCA 62
29 November 2012
C5/2012

ORDER

1.	The proceeding be remitted to the Federal Court at the Melbourne Registry.

2.	The proceeding continue in that Court as if the steps already taken in the proceeding in this Court have been taken in that Court.

3.	The Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.

4.	The costs of the summons be costs in the proceeding.

5.	The costs of the proceeding to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that Court and in the discretion of that Court.

Representation

P E King for the plaintiffs (instructed by Maloney Anderson Legal)

C L Lenehan with D M Forrester for the defendants (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Lee v Commonwealth of Australia

Practice − High Court − Case stated − Questions reserved − Judiciary Act 1903 (Cth), s 18.

Practice − High Court − Remitter − Judiciary Act 1903 (Cth), s 44.

Constitution, ss 92, 99, 100.
Judiciary Act 1903 (Cth), ss 18, 44.
Water Act 2007 (Cth).

1	FRENCH CJ.   By proceedings commenced by writ of summons on 13 September 2012, the plaintiffs, as representatives of a group of water users said to have the same interests, seek declarations that particular parts of the Water Act 2007 (Cth) are invalid by operation of ss 100 and/or 99 and/or 92 of the Constitution, and on other bases.
2		The plaintiffs filed a summons for directions, returnable today, and were seeking referral of certain questions for determination by a Full Court of this Court.  The defendants have made submissions opposing referral and seeking remitter of the proceedings to the Federal Court pursuant to s 44 of the Judiciary Act 1903 (Cth) on the basis, inter alia, that there are questions of fact raised on the statement of claim which are unlikely to be able to be resolved by agreement and which would make a proceeding by way of demurrer inappropriate.
3		The plaintiffs today have sought an adjournment of this directions hearing for a period of a few weeks in order to enable discussions to take place between their representatives and those of the defendants, with a view to agreeing facts which would support a case stated and referral of questions of law to a Full Court.  The defendants were prepared to consent to an adjournment, but only on the basis that the very recent publication of the Basin Plan, made under the Water Act 2007 (Cth), is a matter which requires consideration by the plaintiffs and may affect their pleading.  However, that consent was not offered on the basis that it is likely that there will be an agreement about the facts suitable to support a case stated and referral of questions to the Full Court.
4		Section 44(1) of the Judiciary Act 1903 (Cth) provides that:
"Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject‑matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted."
5		The question of remitter and whether the proceeding should be permitted to continue in this Court is therefore a matter, not just for the parties, but for the Court.  In that connection, Brennan CJ in Ravenor Overseas Inc v Readhead said:
"The power of remitter contained in s 44 of the Judiciary Act 1903 (Cth) is designed to ensure that this Court is not diverted from its principal functions by the need to hear and determine matters in the original jurisdiction which could properly be brought in an Australian trial court."
6		Nor, I would add, should this Court be diverted from its principal functions by the need to engage in intensive case management in order to ensure that a proceeding brought in this Court, and in respect of which it is sought to refer a case stated to the Full Court, is in an appropriate form and brought on an appropriate basis to support such a referral.  Having read the statement of claim and the submissions and affidavits of the parties and having regard to what has been said orally this morning, I am not satisfied that there is or is likely to be, without intensive case management, a proper basis in agreed or uncontested facts to refer questions of law to the Full Court.  Nor is there likely to be a proper basis upon which a demurrer could be filed and entertained.
7		The possibility arises that there may be a number of directions hearings in this Court imposing costs on the parties which will not yield any useful result within a reasonable time in terms of a case stated or a demurrer.  It is in the interests of the parties therefore that the application be remitted to a court which is in a position to case manage it to ensure pleadings are adequately refined and issues formulated and which is in a position to try questions of fact which may be in contest, as well as to determine the legal issues which arise on the basis of those matters of fact.
8		If the matter proceeds on appeal to this Court, this Court will have the benefit of findings of fact, to the extent that they have been in contest, and also the analysis of legal questions by the courts below.  I propose therefore to make a remittal order.  The order will be:
1.	The proceeding be remitted to the Federal Court at the Melbourne Registry.
2.	The proceeding continue in that Court as if the steps already taken in the proceeding in this Court have been taken in that Court.
3.	The Registrar of this Court forward to the proper officer of that Court photocopies of all documents filed in this Court.
4.	The costs of the summons be costs in the proceeding.
5.	The costs of the proceeding to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that Court and in the discretion of that Court.