In a directions hearing on Wednesday, Gordon J rebuffed an attempt by Julian Burnside QC to avoid having a challenge to the Court’s 2004 Al-Kateb ruling heard in February (because he would be overseas) saying:

Well, the difficulty about it is twofold, Mr Burnside. One is that – and this is why they are insurmountable hurdles – this case, your client, has been in detention for a long time; that is the first. The second is that the Court’s workload in March and April is extraordinarily large and so, in the circumstances, the Court thinks that it would be in a sense the only opportunity and window to hear what I suspect is a one-day case in the second week of February.

This is the first indication from a High Court judge of the Court’s 2019 workload. What is not clear (to me, at least) is what the Court’s extraordinary workload in March and April next year will comprise.

There is only one sitting of the High Court remaining in 2018 – the two weeks in December – but the Court has (again) only scheduled three not-especially big cases, filling just one week. Putting aside any special leave grants in December (there are six matters listed for oral hearing),  the Court will enter 2019 with eleven full court matters pending for hearing:

• AB v CD; EF v CD, an unidentified appeal between unidentified parties
• Brisbane City Council v Amos, a one-day matter on late recovery of unpaid council rates
• Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth of Australia & Ors, on the characterisation of trust property in a wound-up company
• Comcare v. Banerji, a two-day constitutional challenge concerning the sacking of a public servant for using social media
• Frugtniet v. Australian Securities & Investments Commission, on whether a person’s spent convictions can be the basis for a ban from directing
• Glencore International AG & Ors v. Commissioner of Taxation of the Commonwealth of Australia & Ors, an attempt to regain possession of privileged documents held by the ATO
• Lee v Lee & Ors; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited, on appellate review of a finding about who was driving a car
• OKS v The State of Western Australia, on appellate dismissal of a child sexual abuse appeal despite a trial judge’s misdirection
• Plaintiff M47/2018 v Minister for Home Affairs & Anor, a one-day challenge to permanent immigration detention
• Spence v State of Queensland, a constitutional challenge to Queensland’s political donations law
• Victorian Building Authority v Andriotis, on whether Victorian authorities must follow NSW ones in rejecting a building licence

Assuming (as is very likely) all eleven of these cases will be heard in the six sitting weeks through to April, this does not seem like a heavy load at all. There are some 25 sitting days during those weeks, and yet only one of the eleven cases is foreshadowed (for now) as a two-day matter. None of them seem to be blockbusters.

There are a number of possibilities that may explain Gordon J’s remark:

• one of the eleven matters (perhaps the first one) will actually take a good deal of the Court’s time
• the Court may have a backlog of as-yet unpublished matters – for example, the legacy caseload from Nauru – that will be dealt with in March and April
• the Court may be anticipating hearing matters that have not yet reached a ready stage for hearing (including perhaps the challenges concerning Aung San Suu Kyi, parliamentary committee summonses and ASIO findings on immigration detainees, which are yet to be referred to the full court.)
• the Court may be anticipating a rush of original jurisdiction matters for some other reason (for instance, challenges before and after the next federal election)
• there may be pending hearings in complex matters whose very existence is currently suppressed
• Gordon J’s comment may concern already heard matters where complex judgments are being written (such as the abortion protest cases and the native title compensation case)
• the Court may have non-judicial work in those months (for example, hosting visitors or attending conferences.)

Regardless, the fact that the Court faces an extraordinary workload in March and April provides a possible explanation for the low number of special leave grants in recent months (but not the low number of cases the Court has opted to hear of late.)