Aboriginal Legal Service of Western Australia (Inc) & Ors v The State of Western Australia

[1992] HCATrans 295

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P21 of 1992

B e t w e e n -

ABORIGINAL LEGAL SERVICE OF

WESTERN AUSTRALIA (INC)

First Plaintiff

ARTHUR DAVIES

Second Plaintiff

CATHERINE PATRICIA CRAWFORD

Third Plaintiff

ROBERT SAMUEL RILEY

Fourth Plaintiff

MARK LYON JOHNSTON

Fifth Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

Defendant

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Summons for remittal to the

Supreme Court of Western

Australia pursuant to

section 44 of the Judiciary Act

1902 (Cth)

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON MONDAY, 12 OCTOBER 1992, AT 10.17 AM

Copyright in the High Court of Australia

MR D. DEMPSTER: If it please the Court, I appear on behalf

of all the plaintiffs. (instructed by Aboriginal

Legal Service of Western Australia (Inc))

MSC.A. WHEELER:  May it please Your Honour, I appear for

the defendant, the applicant on the summons for

remitter. (instructed by the Crown Solicitor for

Western Australia)

HIS HONOUR:	Is there an agreement about the matter?
MS WHEELER:	My understanding from my learned friend is

that the plaintiffs do not oppose the application

but neither do they consent to it, Your Honour.

HIS HONOUR:  Then what is the application which is not

opposed?

MS WHEELER:  The application is to remit to the Supreme

Court of Western Australia the whole of the matter

No P21 of 1992 and the purpose of the remitter is

to enable what are two actions giving rise to

identical questions of law to be dealt with

together by the same court.

HIS HONOUR:  Number P20 - - -?

MS WHEELER:  P21. The stage those proceedings have reached

in the High Court, Your Honour, is that there has

been a written statement of claim. The defendant

has appeared but has not yet filed a defence, and

if I might explain the reason for seeking to remit,

perhaps, at this stage, there has been no defence,

because it would appear to us the appropriate form

of proceeding in the High Court would have been by demurrer. That procedure is not in quite the same

form available in the Supreme Court of Western

Australia and we wanted to make the actions identical in form as well as in substance.

HIS HONOUR:  Yes. Then, do you need a direction as to the

time within which you should plead in the Supreme

Court of Western Australia?

Aboriginal 2 12/10/92

MS WHEELER:  Yes, we are content to have a direction to

plead within the next few days, Your Honour; by the

end of the week or something along those lines.

HIS HONOUR:	Yes.
MS WHEELER:	What we would propose to do - perhaps if I

could just ask Your Honour:  Your Honour has had an

opportunity, perhaps, to look at the affidavit in

support of the summons for remittal?

HIS HONOUR:	Yes, I have read the affidavit.
MS WHEELER:	Sworn by Janine Clare Pritchard.  Your Honour

will appreciate then the form of the proceedings in

the Supreme Court. To that statement of claim in

the Supreme Court the defence, which has been

filed, is, in effect, a demurrer, although not in

form, and a denial of justiciability and the

Supreme Court has directed that the questions

raised by those proceedings, by those pleadings, be
expedited and be heard by the Full Court, and we

would expect that to be in November.

HIS HONOUR:  Well now, is there any problem about a plea of

justiciability if the matter is remitted by order

of this Court?

MS WHEELER:  We would have thought not, Your Honour, with

respect. We would have thought the matter is

either justiciable or it is not justiciable. It is odd to say that it is justiciable before this Court

but not before the Supreme Court. We would have

thought the issues were the same, with respect.

HIS HONOUR: Well, that is a matter for you, at all events.

MS WHEELER: In any event, yes, I think we will worry about

that if it comes up in due course.

HIS HONOUR: Well now, the order that you seek is an order

that the action No P21 of 1992 be remitted to the

Supreme Court of Western Australia generally?

MS WHEELER: Yes, Your Honour.

HIS HONOUR:  And direct that the time limited for delivery

of a defence be, what - - -?

MS WHEELER:  16 October, which is Friday, would give us

ample time, Your Honour.

HIS HONOUR:  Is there any agreement as to costs?

MS WHEELER: There is not, Your Honour. I have just

discussed it briefly with my learned friend. The

extent of the agreement is perhaps that costs of

Aboriginal 3 12/10/92

the application be costs in the cause is perhaps
not the appropriate form of order if the whole of
the matter is remitted and that the alternatives

are that costs be reserved or, the order which the

defendant seeks, that is, that the plaintiff pay

the defendant's costs of this application for

remitter, the reason for that being that it was the
plaintiffs' decision to institute essentially

identical proceedings in two different courts that

has given rise to the necessity for the

application. That would be the submission,

Your Honour.

HIS HONOUR:  What was the order made on the application for

removal?

MS WHEELER: That was the plaintiffs' application and it was

refused with plaintiffs to pay the respondent's

costs of the application.

HIS HONOUR:  Yes. Your material, I take it, Ms Wheeler, is

the summons and the affidavit of J.C. Pritchard

filed on 30 September, is that right?

MS WHEELER:  Yes, Your Honour. Those are my submissions, if

it please Your Honour.

HIS HONOUR:	Mr Dempster.
MR DEMPSTER:	If it please Your Honour, I confirm that the

application is not opposed. The only issue is the

question of costs and I agree with my learned
friend that it would seem inappropriate that costs

be made costs in the cause since effectively there

will be no cause as such after the remittal. But I

do ask that costs be reserved because although the

issues are broadly similar, and that is definitely

conceded, there were two separate sets of

proceedings arising from two parliamentary

resolutions which were in different terms and

involved different parties. The first resolution

related to the Aboriginal Legal Service as such, but the second resolution named officials of the Aboriginal Legal Service and is different in its

terms to that extent, and there may be questions

arising from that.

The first resolution was made with proceedings

in the Supreme Court of Western Australia; the

second resolution was made in this Court by the

plaintiffs. So, for that reason I do ask that

costs be reserved.

HIS HONOUR:  Yes. What do you say about costs being costs

in the cause? In other words, that the costs in
this Court be taxed and that they should follow the

event in the Supreme Court?

Aboriginal	4	12/10/92
MR DEMPSTER:	I would have no objection to that course.	It

did occur to me that there might be a technical

difficulty in that the cause, as it were, is being

remitted and it is then debatable as to whether
there is a cause in this Court, but I will leave

the matter to Your Honour.

HIS HONOUR:  Yes. Do you have anything to say in reply,

Ms Wheeler?

MS WHEELER:	No, if it pleases Your Honour.
HIS HONOUR:	Some of the proceedings in this Court are

obviously matters which are relevant to the
determination of the issues in the Supreme Court.

The writ of summons and the material that has gone

with it will no doubt be part of the pleadings in

the Supreme Court.

I think the appropriate order to make is that

the plaintiff's costs of the proceedings in this

Court be taxed but that they be not paid unless and

until the plaintiff succeeds in the action in the

Supreme Court.

MS WHEELER:  Your Honour, might I just clarify that? Was

that the plaintiff's costs or the defendant's

costs, the defendant being the applicant today?

HIS HONOUR: 

No, the plaintiff's costs because the plaintiff

is the one who has incurred the costs apart from
the application today.

MS WHEELER: 

Very well, Your Honour.

HIS HONOUR: 

The plaintiff's costs in the Supreme Court.

Perhaps I should refine that a little further:

other than the costs of this application be taxed

and if the plaintiff should succeed in recovering a

judgment in the Supreme Court, be paid by the

defendant.

I will read the whole of the order:

Order that the action No P21 of 1992 be remitted to the Supreme Court of Western

Australia generally and direct that the time

limited for delivery of a defence be

16 October 1992.

The plaintiff's costs in this Court, other

than the costs of this application, be taxed

and if the plaintiff should succeed in

recovering a judgment in the Supreme Court, be

paid by the defendant.

Are there any other matters to raise?

Aboriginal	12/10/92
MR DEMPSTER:	Not on my part, Your Honour.
HIS HONOUR:	Very well, adjourn the Court.

AT 10.27 AM THE MATTER WAS ADJOURNED SINE DIE

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