Predicting which cases will get special leave to the High Court is generally difficult. Last month, two Victorian judges refused an injunction to preserve the subject-matter of a case that was the subject of a special leave application, stating that ‘we are not persuaded that the application for special leave enjoys sufficient prospects of success to warrant a stay’. The High Court granted special leave in that matter last Friday. But it is possible to make strong predictions during the hearing itself. For example, a clue came during the applicant’s argument that the case ‘is a matter of real importance’ when Keane J interrupted to say ‘I do not think you need to worry about how important it is.’ The applicant promptly stopped his argument, correctly predicting that special leave would be granted. This was confirmed when, at the conclusion of the respondent’s argument, French CJ said that ‘we need not trouble’ the applicant for a reply. An even clearer sign of success is when the High Court does not call on the applicant at all, for example in this matter in October.
More unusually, in two matters this month, a lawyer faced the prospect of arguing for a special leave result after the Court had already resolved the matter against his client.
In Acquista Investments Pty Ltd & Anor v The Urban Renewal Authority & Ors  HCATrans 295, involving a challenge to a Cabinet decision to sell a large parcel of land, after the applicant challenger and the respondent Crown gave their arguments in the usual way, the High Court was a little too keen to decide the matter:
KEANE J: Thanks, Mr Solicitor. We do not need to hear from you in reply, Mr Walker. There will be a grant of special leave in this case. Can I ask – – –
MR HINTON: If your Honour pleases, there is a – sorry to go over your Honour – there is a third party.
MR WALKER: There is a third respondent, your Honour.
MR HINTON: Mr Roder is here.
KEANE J: Well, we had better hear from him. Yes, well, Mr Roder.
MR RODER: Thank you, your Honour – I will have to – it is obviously not a very promising start to my submissions.
KEANE J: You will need to be particularly persuasive.
Alas, counsel for the buyer wasn’t and special leave was (again) granted.
In Sanofi-Aventis & Ors v Apotex Pty Ltd  HCATrans 300, the applicant faced the unenviable task of arguing for special leave in a patent law matter where the High Court had already rejected special leave five years ago. As the applicant’s counsel explained:
notwithstanding that very considerable effluxion of time, these are proceedings which in every real sense are continuing and pending, and that which is impending is itself a remarkable application. When I say remarkable, I mean it quite literally. It is a tremendously large claim, at least so far as it is mooted on behalf of the Commonwealth, approaching apparently half a billion dollars by reason of the application of the usual undertaking as to damages.
The High Court was unimpressed with this development, with Kiefel J stating ‘I do not see how the Commonwealth’s actions bear upon this matter at all.’ The applicant went on to argue that a second development was that a five-member court of the Federal Court had since criticised (at ) the earlier judgment from which the High Court refused special leave in 2010. Alas, the news that the Federal Court now disowned an earlier judgment the High Court declined to interfere with was not music to the current High Court’s ears. In another telling sign, the High Court did not call on the respondent, immediately presaging its refusal of special leave for a second time. The Court went on to order that the applicant pay, not only the costs of the respondent, but also of the Commonwealth intervening.
This reminded me of a phrase favoured by Gummow J (and apparently also Brennan CJ), where the Court tells counsel about to stand up in reply that they are “pushing against an open door”.
I remember Gummow used the phrase in the Farah v Say-Dee special leave, when he was champing at the bit to overturn that decision.
The transcript from the Farah special leave hearing is here: http://www.austlii.edu.au/au/cases/cth/HCATrans/2006/517.html. As you say, Gummow J interrupted the applicant’s counsel’s first sentence in reply to say “You are pushing, as Sir Gerard Brennan used to say, against an open door, Mr Gray.” Gray immediately sat down to hear Gummow J grant his application.
An Austlii search shows that the phrase was used by several HCA judges, but especially Gummow J. I like this example (involving a litigant in person):
GUMMOW J: Thank you, Mr McGovern. Mr Glennan, having – – –
MR GLENNAN: Excuse me, your Honour, may I just interrupt and I do apologise. I have prepared some written submissions this morning. I understand this may be not in the way that the Court would wish me to proceed but I am appearing as litigant in person. I do ask for the Court’s indulgence, with the utmost respect, and I seek leave to hand up my written submissions.
GUMMOW J: About what?
MR GLENNAN: In support.
GUMMOW J: Of?
MR GLENNAN: Of my oral submissions that I have just made. In other words, I am respectfully requesting the Court not to come to a decision on the present application until it has read these written submissions.
GUMMOW J: You are pushing against an open door, I think, perhaps.
MR GLENNAN: I beg your pardon, your Honour.
GUMMOW J: You may be pushing against an open door.
MR GLENNAN: If the door is open, I seek to insert this through the open passage.
GUMMOW J: Very well.
And it goes on from there…: http://www.austlii.edu.au/au/cases/cth/HCATrans/2002/622.html.