Pompano Pty Ltd and Finks Motorcycle Club, Gold Coast Chapter v Assistant Commissioner Michael James Condon [2012] HCATrans 242 (5 October 2012)
Last Updated: 11 October 2012
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
City No B44 of 2012
B e t w e e n -
POMPANO PTY LTD (ACN 010 634 689) AND FINKS MOTORCYCLE CLUB, GOLD COAST CHAPTER
Applicant
and
ASSISTANT COMMISSIONER MICHAEL JAMES CONDON
Respondent
Application for removal
FRENCH CJ
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO LINK TO BRISBANE
ON FRIDAY, 5 OCTOBER 2012, AT 9.32 AM
Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR P. KULEVSKI, for the applicants. (instructed by Potts Lawyers)
MR P.J. DAVIS, SC: I appear with my learned friend, MR G.J.D. DEL VILLAR, for the respondent. (instructed by Crown Law (Qld))
MR W. SOFRONOFF, QC, Solicitor-General for the State of Queensland: I appear with my learned friend, MR G.J.D. DEL VILLAR, for the intervener, the Attorney-General of Queensland. (instructed by Crown Law (Qld))
FRENCH CJ: Now, there seems to be general agreement that the matter should be removed.
MR WALKER: Yes.
FRENCH CJ: I suppose what might assist us would be some process which crystallises the outcomes you are seeking on the basis of the challenge to invalidity. I mean, ordinarily one might have expected to see, for example, a strike-out motion of some kind, perhaps in the court below. What procedural mechanisms do you propose for the relief that you are seeking and how would you formulate it, apart from dismissing the overall application of course?
MR WALKER: We do seek it to be dismissed. We do, with respect, suggest that to that end directions for the decision of the point of invalidity can and should be made but, in our submission, it is dismissal for which we contend. That must be the only outcome that comes from invalidity. There is no rump of the case, which is why it is appropriate for the whole of the proceeding to be removed. If we are unsuccessful in this Court, of course, remitter would follow. It is to that end that upon removal into this Court we would then consult with our learned friends as to the appropriate method. What occurs to us at the moment is the reference of a special case which raises validity only.
FRENCH CJ: Yes, all right. Thank you. Mr Davis.
MR DAVIS: Your Honours, at the moment the application seeks the removal of the whole cause to the Court. One way of dealing with the matter would be simply to remove the question of validity of the Act to the Court, leaving the remainder of the cause in the Supreme Court of Queensland. This Court would then deal with that limited issue that was
removed and then matters would then take their course in the Supreme Court of Queensland.
FRENCH CJ: Is it the validity of the entire Act that is put in issue, or the validity of particular provisions?
MR DAVIS: At the moment it seems that what is really challenged is the validity of Part 2 and - - -
CRENNAN J: Part 6, perhaps?
MR DAVIS: Part 6, yes, thank you, your Honour. Now, if the Court were to strike down Part 2 then other aspects of the legislation would necessarily fall and that is because control orders, for instance, under Part 3 are dependent upon a finding or a declaration of criminal organisation under Part 2. If Part 2 fell then Part 3 would fall but Part 4 would not and neither would Part 5. We say that in relation to Parts 4 and 5 with some trepidation because one of the matters that can be taken into account by the Supreme Court in determining whether to make orders under Parts 4 and 5 is whether the organisation is a criminal organisation, but at the moment we understand that the attack really is only against Parts 2 and 6.
CRENNAN J: There might be some implications for Part 9 as well. I have not really thought that through, but that would be possible, I should think.
FRENCH CJ: Yes, Mr Davis, anything further?
MR DAVIS: No, your Honour.
FRENCH CJ: Yes, all right. Solicitor-General.
MR SOFRONOFF: I do not wish to add anything, your Honours.
FRENCH CJ: Yes, all right, thank you. Mr Walker, it seems to us that the appropriate order would be to remove so much of the cause as concerns the validity of provisions of the Criminal Organisation Act into this Court, and then refer the matter to a single Justice for further directions so that a special case can be formulated.
MR WALKER: If it please the Court.
FRENCH CJ: That might be the most convenient way of dealing with it.
MR WALKER: I take it, your Honours, it would be proper for the parties to anticipate that directions by moving in the direction I have already suggested?
FRENCH CJ: Yes. The order will be:
- So
much of the cause now pending in the Supreme Court of Queensland as concerns the
validity of provisions of the Criminal Organisation Act 2009 is removed
into this Court.
- The
matter is referred to a single Justice for further directions.
That will in all likelihood be Justice Kiefel in Brisbane.
MR WALKER: May it please the Court.
FRENCH CJ: Yes, thank you.
AT 9.39 AM THE MATTER WAS CONCLUDED