The High Court has now released its business list for its sitting in the middle two weeks of October.The delayed publication is likely due to the recent vacation of a hearing date for a trust dispute involving Gina Rinehart and the settlement of the constitutional challenge to the Murray/Darling Royal Commission, both cases that had previously been scheduled for hearing during those two weeks. Although there are eight matters listed, in reality there are only three the Court now says it plans to hear:
- Clubb v Edwards; Preston v Avery are two criminal appeals raising constitutional challenges to laws in the ACT and Victoria creating ‘zones’ around abortion providers that bar some sorts of behaviour. The cases are high profile ones with seven Attorneys-General intervening and four further parties recently given leave to act as friends of the court.
- Grajewski v DPP (NSW) likewise concerns the law about protesting, but here it is the statutory interpretation issue of whether the action of a person suspending himself from machinery counts as the offence of damaging property.
- ASIC v Lewski; ASIC v Wooldridge; ASIC v Butler; ASIC v Jaques; ASIC v Clarke are civil penalty proceedings against five directors of a failed aged care and retirement trust concerning whether they breached their duties when they amended the trust’s constitution.
The recent changes mean that one constitutional case has been replaced by another, and Grajewski has replaced Rinehart, leaving the scheduled workload unchanged at three cases. While three matters in a sitting is notably fewer than usual, it does happen occasionally. Indeed, it happened last October, when the Court spent its first sitting week hearing the Citizenship 7 case, and its second hearing two quite short matters.
The scheduling of the coming October sitting is more unusual, however. As is typical (albeit frustrating), the business list does not outline what will be happening on each of the scheduled eight sitting days. But the details are contained in the Court’s current cases page, which states the first hearing dates for each case as follows:
- Clubb and Preston are listed for the first sitting day of Tuesday 9th October.
- Grajewski is listed for the fourth sitting day, Friday 12th October.
- The ASIC cases are listed for the seventh sitting day, Wednesday 17th October.
This distribution allows three sitting days for Clubb & Preston (an unsurprising number given the joint cases and number of parties) and two days for the ASIC matters (also seemingly an unsurprising number for the same reason.) But it seems unlikely that the interesting, but relatively straightforward question of statutory interpretation in Grajewski would take up more than a day, much less extend over a weekend. Accordingly, there appears to be a gap in the Court’s timetable in the first part of its second sitting week. Such gaps are also typical, at least if they fall on Mondays and Fridays. The Court has only started sitting on Mondays in recent years and it typically uses them for case management hearings. Indeed, the full court has only sat on a Monday once this year, in the Perth sittings in June, although it will seemingly do so again this month, the week after its sittings in Darwin. Fridays are used for full court hearings more often than Mondays. So, the scheduling of Grajweski on the first Friday of the October sitting week joins similar Friday hearings held in March this year and June, August, October and November last year.
What is much more unusual is the absence of any published listing for Tuesday 16th October (when Grajewski could have been scheduled.) There have been full court hearings on the Tuesday of the second week in every sitting in the last two years (including last October). The last time the full court didn’t sit on such a Tuesday was 15 November 2016, but the Court held no full court hearings that week at all. It may be that the Tuesday gap this coming October will be filled at late notice by Southwest Helicopters (which is the only other ready-to-be-heard as-yet-unscheduled matter on the current cases list). However, the gap in the October listing also coincides with another gap in the High Court’s current cases page: the continuing absence of a case page for two pseudonymous matters granted leave the same month as Rinehart, Grajewski and Southwest Helicopters. That gap, presumably due to whatever laws, orders or concerns led to the use of pseudonyms and to the matter’s repeated omission from the High Court bulletin, means that there is no public information these matters’ progress in the apex court (not to mention who they involve and what they are actually about.) Is it possible that these matters will proceed to a full court hearing and even a judgment without the public knowing?