Attorney General NT v Ward and Others P62/2000

[2000] HCATrans 785

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth  No P59 of 2000

B e t w e e n -

THE STATE OF WESTERN AUSTRALIA

Appellant

and

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK MCDONALD and DIANNE DINGAL

Second Respondents

DELORES CHEINMORA, MATTENMORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN

ON BEHALF OF THE BALANGARRA PEOPLES

Third Respondents

Office of the Registry
  Perth  No P62 of 2000

B e t w e e n -

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Appellant

and

BEN WARD & OTHER ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

First Respondents

CECIL NINGARMARA & OTHERS

Second Respondents

Office of the Registry
  Perth  No P63 of 2000

B e t w e e n -

CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK MCDONALD and DIANNE DINGAL

Appellants

and

THE NORTHERN TERRITORY OF AUSTRALIA

First Respondent

CONSERVATION LAND CORPORATION

Second Respondent

BEN WARD & ORS

Third Respondent

DELORES CHEINMORA & ORS

Fourth Respondents

Office of the Registry
  Perth  No P67 of 2000

B e t w e e n -

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Appellants

and

CROSSWALK PTY LTD and BAINES RIVER CATTLE CO PTY LTD

First Respondents

CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK MCDONALD and DIANNE DINGAL

Second Respondents

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Third Respondent

DELORES CHEINMORA, MATTEN MORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN

ON BEHALF OF THE BALANGARRA PEOPLES

Fourth Respondents

THE STATE OF WESTERN AUSTRALIA

Fifth Respondent

KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE

Sixth Respondent

ALLIGATOR AIRWAYS PTY LTD, PETER LAURENCE ALVIN, OASIS FARMS, C.A. & T. BRADLEY, W.R. & A.J. BROGMUS, J.A. CARETI, L. & M. CONLEY, T. & E. CROOT, C.W. CURTIS, MAURICE DAVIDSON, DALENE N. DAVIES, UTE & HANS DIEDRICKSON, C.C. & P.M. DONE, IAN & COLLEEN DUPE, KIMBERLEY NATIVE -SEEDS, J. ELLETT, B.M. & J. FAIRCLOUGH, STEVE FARQUHAR, JOHN FILE, H.G. GARDINER T/AS UPSTREAM ORD BANANAS, JEFF GOODING & G. HARDING T/AS GOLDEN FRUITS, DOUG G. & E.M. GRANDISON, GUERINONI NOMINEES PTY LTD, NOEL A. & AILEEN M. HACKETT, ROY & ROSALIE HAMILTON T/AS R. & R. PLANTATION, WARRAMINGA PTY LTD, STEVE & CHRYSTABELLE HOWELL T/AS SPEEDY & BOB’S ELECTRICS, MICHAEL & HEATHER HOWELL, HOWARD & LESLEY JAMES, GRAHAM JOHN & SHEILA WEBSTER, KIM G. JOHNSON T/AS ITCHY PALM PLANTATION, G.T. KING & D.P. GAEBLER, J. & P. KIRBY, LAKE ARGYLE CRUISES, LAKE ARGYLE INDUSTRIES PTY LTD, PATRICIA LAMOREAUX, ANTHONY & JULIE LARSEN, J. & J. LEACH PARTNERSHIP T/AS WILF ORD-RIVER PLANTATION, C.R. & S.A. LEAVER T/AS DELESTION RANGE ESTATE, B. LERCH & D. SPACKMAN T/AS BARDENA FARMS PTY LTD, PETER AND BELINDA LETCHFORD, ROBIN & SHANE MACKAY, SUZANNE MACKAY, DIELRO PTY LTD, SHARAL PLANTATION, STEPHEN MASSEY & JULIE KEMP, SHANE & SUZANNE MOORE, CRAIG & GAIL MUIR, J.L. & D.G. NICHOLSON, DAVID OGILVIE, IAN OLIVER, ORD RIVER DISTRICT CO-OP LTD, ADUR PTY LTD T/AS PARKER POYNT PLANTATION, LYNDON & KAREN PARKER T/AS KARLYN PLANTATION, IAN H. & ALMA V. PETHERICK, RONALD M. PORTER, CHRIS & DIANE ROBINSON T/AS ORIA ORCHARDS, R. & J.V. SCHOEPPNER, S.C. & P.M. SHARPE, BETHEL INCORPORATED, KENNETH G. SKERMAN & HILARY E. BRETT, KERRY SLINGSBY, P.J.E. & L.A. SMITH, ALAN J. & JANET A. STENNETT, DAVID THORNEYCROFT, JENNIFER TOMKIN, WAYNE R. & JANICE A. TREMBATH, GREG & JANE HARMAN, FOLLE INVESTMENTS, HELGA WEISS, MERV & TERESA WELSH T/AS FORESHORE FRUITS, TIMOTHY B. & LYNETTE J. WESTWOOD T/AS EMELS ORCHARD, G.S. TURNER & Y.M. WHITEHEAD T/AS GARVON PLANTATION, ALLAN & SUE WILSON, ROD WILSON, WILLIAM R. & J.M. WITHERS, J.L. & S. WOODHEAD, GREG WYNN, JENNY RYMER, CALYTRIX INVESTMENTS PTY LTD, JOHN W. READ, STJEPAN VUK, HOWARD YOUNG, J.L. WOODHEAD, J.S.W. HOLDINGS PTY LTD, EAST KIMBERLEY SPORTS FISHING CLUB, KUNUNURRA RACE CLUB and KUNUNUYRRA WATER-SKI CLUB

Seventh Respondents

ARGYLE DIAMOND MINES PTY LTD AND THE ARGYLE DIAMOND MINE JOINT VENTURE

Eighth Respondents

For Directions

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN AND PERTH BY VIDEO LINK TO MELBOURNE

ON MONDAY, 18 DECEMBER 2000, AT 2.35 PM

(Continued from 22/9/00)

Copyright in the High Court of Australia

HIS HONOUR:   I will take the appearances first, if I may, from from Perth, then from Darwin, and then the appearances in Melbourne.  So, first, in Perth.

MR C.J.L.PULLIN, QC:   Your Honour, I will deal with P67 of 2000 which has most of the parties in it.  I appear with my learned friend, MR K.M. PETTIT, for the fifth respondent in P67 of 2000.  (instructed by the Crown Solicitor for Western Australia)

MR M.L. BARKER, QC:   May it please your Honour, I appear with my learned friend, MR G.J.J. BEUKES, for the appellants in P67.  (instructed by the Aboriginal Legal Service of Western Australia (Inc)).

MR M.T. McKENNA:   If your Honour pleases, I appear for the first respondent.  (instructed by Hunt & Humphry)

MR G.M.G. McINTYRE:   If your Honour pleases, I appear for the fourth and sixth respondents.  (instructed by the Kimberley Land Council)

MR D.W. McLEOD:   If your Honour pleases, I appear with my learned friend, MR P.L. WITTKUHN, for the seventh respondent.  (instructed by McLeod & Co)

MR K.R. JAGGER:   If it please your Honour, I appear for the eighth respondents.  (instructed by Freehills)

MR M.T. RITTER:   If your Honour pleases, I appear for the Goldfields Land Council Aboriginal Corporation.  (instructed by the Goldfields Land Council Aboriginal Corporation)

MR G.R. DONALDSON:   Your Honour, I appear on behalf of the Pastoralists & Graziers Association of Western Australia.  (instructed by Jackson McDonald)

MR PULLIN:   Those parties appear as different parties in the other three appeals.

HIS HONOUR:   Yes, thank you.  Then in Darwin.

MS R.J. WEBB:   Your Honour, I appear for the appellant in P62 of 2000 and for the first respondent in P63 of 2000, and the third respondent in P67 of 2000.  (instructed by the Solicitor for the Northern Territory)

MR T.W. ANDERSON:   Your Honour, I appear for the second respondent in P63 of 2000.  (instructed by Clayton Utz)

HIS HONOUR:   Yes, thank you.  Now, in Melbourne. 

MR J. BASTEN, QC:    Your Honour, I appear for Cecil Ningarmara and Others in each of the matters.  (instructed by the Northern Land Council)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:   Your Honour, I appear for the Attorney-General for South Australia, seeking leave to intervene in all matters.  (instructed by the Crown Solicitor for South Australia)

MS M.A. PERRY:   Your Honour, I appear for the Commonwealth which is intervening pursuant to section 78A in matter No P67, and is an applicant for intervention in the remaining appeals.  (instructed by the Australian Government Solicitor)

MR B.A. KEON‑COHEN, QC:   If your Honour pleases, I appear for Mirimbiak Nations Aboriginal Corporation seeking leave to intervene in matters P67 and P63.  (instructed by Mirimbiak Nations Aboriginal Corporation)

MS S.E. PRITCHARD:   If your Honour pleases, I appear for the Human Rights and Equal Opportunity Commission, an applicant for leave to intervene in all four appeals.  (instructed by Human Rights and Equal Opportunity Commission)

HIS HONOUR:   Now, ladies and gentlemen, before we begin can I, in effect, set the agenda of what is going to happen and, at least those things which at this stage of the proceeding I think are not going to happen today.  There are, I think, four principal subjects for consideration at this hearing.  They are, firstly, the preparation of evidentiary material for use at the hearing.  Secondly, the preparation of revised submissions of the parties to the appeals, (a) that will incorporate any necessary reference to evidentiary material, and (b) that will refine the joinder of issue between the parties.  The third subject matter is preparation of submissions by the interveners, or those who seek leave to intervene.  The fourth subject matter is the division of time for oral submissions at the hearing of the appeal.

Before I turn to deal with those four subject matters, I want to say something specifically about the questions that were agitated last time on your application, Mr Pullin, and which are the subject of some written submissions at the start of the further and better particulars that have been filed on behalf of Western Australia of its notice of contention.  It would seem to me that the issue of whether there should be some revocation or limitation of special leave is a matter which, if I have power to deal with it ‑ as to which I express no view – I am presently minded not to consider or to embark on the argument concerning.  I take the view that those questions in the end are matters properly dealt with by the Full Court, rather than by a single Justice. 

That being said, it seems to me that there are three or perhaps four matters that might usefully be said about this whole subject matter of revocation or limitation.  First, the grounds that the appellants have put on are either within or without the leave that has been granted.  If they are within the leave that has been granted, it seems to me that any question of revocation or limitation of leave is a matter that is better dealt with by the Full Court.  If, by contrast, the grounds that have been put on by the appellants, or any of them, fall outside the leave, then presumably the question of revocation falls away.

As I understand it from what is said in the Western Australian submission, there are said to be some uncertainties about the present position as revealed by the papers.  Some of those uncertainties are said to stem from what is described as an inconsistency between grounds in the draft notice of appeal that were the subject of a grant and grounds in the draft notice of appeal that were the subject of refusal of leave.  Again, it would seem to me that those are matters better agitated before a Full Court.  Some of the uncertainties, however, are said to stem from a want of proper identification of the land which is the subject of grounds of appeal, notably I think it is ground 10.

In approaching that question, it would seem to me that the central point to which attention must be directed is the proper particularisation of the grounds that presently have been given.  At least as at present advised, it would seem to me not to be terribly productive to then attempt to work backwards into the draft notice of appeal, most especially, at least as at present advised, it does not seem to me to be particularly productive to do so from a premise that grounds 1 to 5 of those draft grounds were general, which were then particularised in grounds 6 to 49.  My present recollection of the application for special leave and the papers that were then filed, unaided by any assistance that counsel would now offer me about it, is that that is not the structure that the notice of appeal then took – or the draft notice then took.  But if it does, so be it, they are matters for debate.

The third matter to which I would draw attention, and to which I think insufficient attention may thus far have been paid, is that the parties need, perhaps, to give the closest possible attention to the forms of order which they say they would have this Court make on the determination of the appeal.  If, as may be the case, one of the orders that they say the High Court should make is to remit the matter, or part of the matter, to the Full Court of the Federal Court, I invite the attention of the parties most particularly to consideration of what orders they would have that court make on remitter, presumably, by reference only to the evidence adduced at trial.

If the parties, under the guise, if I may put it in that prerogative way, of seeking an order for remitter are, in truth, seeking some retrial of the matter, then I say to them they need to make that explicit as soon as may be.  These are not things that can usefully be left to the last day of hearing or to the last minutes of counsel’s address.  I urge the parties to the appeal to give the closest attention to the forms of order which they want this Court to make.  If, as I say, that includes remitter to the Full Court of the Federal Court, that is not, a priori, something that would astound me, but that requires the parties to give the closest possible attention to what orders they then say that court should make.  I say all that well conscious of the fact that there are many permutations and commutations of the outcome of an appeal or set of appeals as complex as this is.  I understand that.  But, the Court will be looking to counsel for help.  I am giving fair warning now that attention should be directed to those issues.

All that being said, my present intention in relation to the issues which you raised in your submission, Mr Pullin, is simply to leave the matters over.  There will, at the end of this hearing, be general liberty to apply, but I can give you this indication:  if the parties, or any of them, think that there is further useful work that can be done by a single Justice, it would seem to me to be likely that that is best done after all the submissions and all the papers are in, and in that two weeks between the February and March sittings.

If the parties are of the view that it is desirable to bring it on for further directions or for the determination of some issue which a single Justice can determine, then by all means aim towards that two week interval which will fall between the filing of all of the papers and the commencement of the hearing of the appeals.  It is likely that I, or another single Justice, will somehow find time to fit in any application at that time. 

Before I pass to the other matters, Mr Pullin, is there anything that you would wish to say in response to that long soliloquy of mine?

MR PULLIN:   Well, your Honour, we will deal with the four matters in due course, but in relation to the notice of motion for revocation, it might be more of a problem for Mr Barker because he will be going first and the position, if it is not resolved before we have seven Judges sitting, there may be difficulty in trying to work out exactly what is the subject for discussion in relation to ground 10 and a number of other grounds which are associated with it.  One way to solve that would be to have three Judges sit; in other words, a special leave panel, to deal with that issue rather than to have all seven Judges involved in it.  Now, I put that forward for suggestion, realising, of course, that it just might not be possible in terms of Judge power.

HIS HONOUR:   I rule nothing out, Mr Pullin.  If it is thought that that has to be done, then no doubt the parties can file papers that will tell us that that is what they say should be done.  If both parties were to urge that it be done, that, presumably, presents a different aspect from that which would be presented by one side urging it to be done, but I cannot help but feel that the grounds are there.  They are either properly particularised or they are not.  They either are within the grant or they are without the grant and we would be better to simply get on and hear the appeals rather than have a side show.  But that, as I say, is uninformed by the undoubted benefit of having you tell me why I am wrong.

MR PULLIN:   Perhaps I will leave it to Mr Barker to have his view.  As I say, I think it is likely to be more of a problem to cut into his time than it will be for our side, because by then the Court will have expressed some views about who is right and wrong in relation to it but it will take up more of his time.  There is one subsidiary aspect ‑ ‑ ‑

HIS HONOUR:   Just before you go on, I would not unerringly assume that if there is deficit of time it will fall inevitably on the side of the appellants.  It occurs to me that were you to put on or to persist in this application and fail in it, that would be at the cost of your time, not his.  So you should not think that there is but one outcome for time.

MR PULLIN:   There is a subsidiary matter, your Honour, and that is that there have been two sets of particulars filed by the appellants in relation to ground 10.  There was one in relation to the order that you made on 21 September and then you may remember that you ordered some further particulars to be delivered on 9 November.  We have mapped the two areas which have been particularised and it appears to us that we have two areas identified and we really do require clarification as to what are said to be, what I will call, the buffer zone sections of the Ord project which are the subject of ground 10.

HIS HONOUR:   Can I say this to you and to Mr Barker, Mr Pullin?  If counsel cannot sort that out, by all means, there will be a single Justice hearing.  But if counsel cannot sort that sort of thing out, then, really, I would expect better.  There will inevitably be glitches of that kind - fix it.

MR PULLIN:   That is noted, your Honour.  Should I deal with other matters or do you wish to go ‑ ‑ ‑

HIS HONOUR:   No, I, alas, propose to harangue all parties again, lest the agenda be taken away from me, Mr Pullin.  It was a case of control the drafting, was the first lesson I learned at the commercial bar a year or 12 ago. 

Now, on the subject of evidentiary material, I invite the attention of all parties ‑ and these matters are directed more to the parties, of course, than they are to the interveners ‑ the material to which reference will have to be made and which will have to be reproduced is that which will form the subject of any reference in oral submissions or in written submissions.  But that invites attention, of course, to the question of whether your reference is really necessary.  Again, although it should be unnecessary to say this, might I simply draw the attention of the parties to the fact that the cost of the preparation of material which is unnecessary may well fall, in any event, on that party.  That having been said, references will be quite specific but it will presumably be necessary to give them some context and this is a difficult question of balance.  It is a question of balance upon which we will have to rely, in the first instance, on the good sense of the parties.

There is a question about what to do about restricted evidence.  If parties are proposing that there should be reference to restricted evidence, I would hope that the parties could devise a protocol which would enable its preparation and circulation in a way that will abide by the restrictions that have been placed upon it.  Now, as I have told the parties before, the evidentiary material must be available before filing of the final version of submissions.  It seems to me that that means a timetable of this kind.  The parties will have to give notice of the material upon which they rely by 15 January.  It seems to me that then the appropriate course to adopt is for Western Australia to prepare the index based on the notice given by the parties and that index to be made available by 22 January.

It would seem to me that then the Ward interests, or perhaps the Ward interests in conjunction with the Ningarmara interests, should prepare and file the volumes and do so by 2 February 2001.  I say 2 February because these are documents that are going to have to be available to counsel for incorporation of references in their final version submissions.  I am minded, subject to what the parties do say, since costs seem to loom so large between at least some of the parties, to order that the costs of preparation of these documents be borne, in the first instance, as to one half by the Ward and Ningarmara interests in such proportions as they choose and as to one half by Western Australia and Northern Territory in such proportions that they choose.

In addition, as Western Australia suggest, we would have, by 15 January, to have filed 10 copies and served on each applicant for leave to intervene or each intervener, one copy of the CD of the transcript.  That, I assume, is a relatively easy step to take.  The further timetable that I then have in mind is that the revised submissions by parties and submissions by those interveners who seek to support Ward, Ningarmara, Cheinmora or Kimberley Land Council, which seems to me to be Goldfields Land

Council, Mirimbiak Nations, Yamatji Barna Baba Maaja, and HREOC, should all be filed by 4.00 pm, 9 February.

A week later, by 4.00 pm 16 February, all other parties and any other persons seeking leave to intervene and make submissions on behalf of some party other than Ward, Ningarmara, Cheinmora and Kimberley Land Council, would put on their either revised submissions or primary submissions.  Now, before we come to deal with the division of time for oral hearing, as to which, again, having considered the submissions, I have some proposals, can I deal first with the timetable?

The timetable I propose then is notice of evidentiary material, 15 January; Western Australia to prepare index, 22 January; Ward to prepare and file volumes and serve volumes, 2 February; 15 January, Western Australia to file and serve CD of transcript; 9 February for submissions by Ward, Ningarmara, Cheinmora, Kimberley Land Council, Goldfields Land Council, Mirimbiak Nations Aboriginal Corporation, Yamatji Barna Baba Maaja Aboriginal Corporation, HREOC, and any other person seeking leave to intervene in support of those interests; 16 February for submissions by all other parties and any other person intervening or seeking leave to intervene.  Now, do parties seek to be heard about the adoption of that timetable?  First, can I take submissions from Perth.

MR BARKER:   I have no submissions on those proposals, your Honour.

HIS HONOUR:   Yes.

MR PULLIN:   Your Honour, in relation to the evidentiary materials, could I just say something for further clarification?  I am sure it is intended by your Honour, but it will help with those who are putting together the index and the documents themselves.  I have taken this reference of evidentiary material to be referred to to be documents that counsel is actually going to take the Court to during the course of their submissions and to include documents which will not be actually referred to in Court itself.  Let me just give an example.  If a lease is to be referred to the Court and looked at by members of the Court, that would be included.  But if there are, say, 50 other leases of similar nature, there would simply be a schedule, but they would not be reproduced in the book of materials because, if that course is followed, it will be an enormous copying job.  So I thought I should clarify that point.

HIS HONOUR:   Could I indicate one important variation from that, Mr Pullin, and it is this.  The proposed form of order I will make is that parties give notice in writing to all other parties of the precise part, or parts, of the evidence adduced at trial to which that party proposes to refer the Court, in written or oral submissions.  We need to have, in effect, in the

appeal book, any document to which reference is made in the written submission, otherwise the written submission is not meaningful.

MR PULLIN:   Well, your Honour, I see a great problem with that.  I go to the example of the leases, for example.  The Court will want to be taken to a lease, or, say, a pastoral lease.  They will want to see the form of the pastoral lease, they will want to see what it contains.  But we are dealing with tenure that ranges over 120 years and, for example, with pastoral leases, we would want to take the Court to, perhaps, three examples, then we would like to say there is a schedule of perhaps 100 pastoral leases.  But to ask the appellants to prepare 100 pastoral leases and put them into the book is something which would become very burdensome.

HIS HONOUR:   And it is not what I intend.  As I understand the written submission that you just foreshadow, it would be that lease in form exhibit 1, pages 1 to 7, is typical of many other leases made between years X and Y.  Lease in form exhibit 12, pages X to Y, is typical of many other leases made in other period.  All I would intend is that if you are making specific reference to a document in the submissions, that the Court have that document.  In the example I just give, it would be necessary to reproduce two leases, not the 202 that are the others of which the two chosen are examples.  Does that make the point sufficiently clear though?

MR PULLIN:   It does, your Honour.  That is exactly the end result that I was aiming for.

HIS HONOUR:   Yes.  Now, are there any other submissions in Perth about the timetable I have proposed?

MR PULLIN:   There are no other submissions, your Honour.

HIS HONOUR:   Thank you.  In Darwin, are there any submissions in Darwin?

MS WEBB:   No, your Honour, there are no submissions from Darwin.

HIS HONOUR:   Thank you.  And in Melbourne?  There are none here.  Yes, Mr Keon-Cohen.

MR KEON-COHEN:   Your Honour, would your Honour hear me as an applicant to intervene on a matter on the last two dates that your Honour has suggested.  Can I indicate, your Honour, that those dates, the first of which is 9 February, falls on the very last Friday when the Court will be hearing the Yarmirr appeal and when, I perceive, many of counsel present today will be engaged.  Your Honour, it strikes me, on two bases, that it might be

advantageous to the Court and the parties to defer that deadline by a week and defer the subsequent deadline of 16 February by a week.

HIS HONOUR:   In a word, Mr Keon-Cohen, no.  These papers have to be available for all members of the Court for the entirety of the two weeks before this case starts and that has been the drive under it.  Yes.

MR KEON‑COHEN:   Your Honour, the only point I would make, if I may, is that some of the issues to be agitated in Ward might be agitated to a degree in Yarmirr, for example, fundamental concepts of what native title is or is not.  It might be beneficial for the parties to have a week to consider the debate in Yarmirr which might shorten or recast, to a degree, those final submissions.  I would put that, your Honour, on the basis of assisting all parties and the Court to benefit from what will be a substantial debate in Yarmirr and translate that into these proceedings.

HIS HONOUR:   Yes.  Does any other party seek to support the contentions just advanced?  No?  The dates will be as I have indicated.

MR KEON‑COHEN:   If your Honour pleases.

HIS HONOUR:   Yes, Mr Basten.

MR BASTEN:   Your Honour, could I be heard on the earlier dates?

HIS HONOUR:   Yes.

MR BASTEN:   In relation to 15 January date, that, I think, is the Monday in January.  I would simply seek an extension of perhaps 24 hours to that to the Tuesday afternoon.  I suspect that many people will not be returning to work until that day and it may just be that an extra 24 hours convenience could be accommodated without doing any jeopardy to the later dates.

HIS HONOUR:   That is, I think, up to Western Australia to answer.  If you got the notices by the 16th, Mr Pullin, what can you do?  Can you get the index up by 22 January?  It would seem to me to be possible.

MR PULLIN:   Yes, we could do that, your Honour.

HIS HONOUR:   Yes.  The 15th will become the 16th.

MR BASTEN:   Could I just inquire, your Honour will have see that we made a specific application to file a supplementary submission in relation to ground 15 in P67.  Do we need further timetabling of that or may we simply incorporate that into our revised submissions?

HIS HONOUR:   My intention is that the parties should be not only entitled, but encouraged, to go back and re‑examine their submissions afresh.  I am concerned that as best we can we get a complete and precise joinder of issue.  Now, plainly, if there is some huge departure from what has already been filed, then issues would arise, but that is not what I understand you have in mind, Mr Basten, but with an appeal of this size, if the parties can refine things, so much the better.  I therefore intend, by the directions that I am proposing, to encompass that kind of refinement.

MR BASTEN:   If the Court pleases.

HIS HONOUR:   Yes, thank you, Mr Basten.  Now, do we need then more on the question of timetabling submissions?  Can I come to the question of division of time for the oral hearing?

The proposal that I am about to make or, perhaps more accurately, announce, is founded on a hearing time of seven days, not eight, seven.  At the moment I propose to go no further than indicating the broad level of division between what might be called the larger groupings of interests.  My intention is that with that guidance the parties should then further divide their time by agreement.  If, contrary to all expectation, the parties cannot come to an agreement about that further division it will be imposed upon them at a further directions hearings which I will hold, in any event, on Monday, 5 March at 3pm in Canberra.  By then counsel will, I assume, be in Canberra or will be able to be in Canberra, and I just want, in any event, to hold a directions hearing that day to pick up any problems that have emerged before we go in.

The division I have in mind is that, one, Ward, Ningarmara, Cheinmora and Kimberley Land Council would between them have a total of 13 hours for the presentation of all oral submissions in chief, in answer and in reply.  Those granted leave to intervene in support of those interests would together have a total of one hour for oral submissions.  Western Australia and the Northern Territory, including thereby the Attorney‑General for the Northern Territory and the Conservation Land Corporation, would have a total of 11 hours for the presentation of oral submissions in chief, in answer and in reply.

Other parties to the appeals would have five hours for their oral submissions in chief and in reply.  I do not think they are making answering submissions but, in any event, five hours for the total of their oral submissions.  Those who intervene in support of those interests would have a total of one and a half hours for oral submissions. The further division of times between parties and the allocation of times to particular stages of the argument, as, for example, argument in-chief, in answer and in reply will become a matter for agreement between counsel.

As I say, if agreement cannot be reached, it will be imposed upon the parties at the directions hearing on 5 March 2001.  Now, dividing the time is not easy.  Whatever division I make will be said by one or more parties to be, choose your epithet, “grossly inadequate”.  Doing the best I can I think that a division along those lines will allow the parties who are, after all, the principals in this litigation, the time to put their arguments.  Some interveners may well, even if granted leave to intervene, be confined to their written submissions.  We will see.

Those are matters, of course, ultimately for the Full Court, and any directions which I give will in the end, of course, be subject to any contrary direction by the Full Court.  But that all having been, as I say, proposed or announced, do counsel seek to be heard?

MR BASTEN:   Would your Honour run through those figures again, your Honour?  I do not seem to be able to add up.

HIS HONOUR:   I get to 31½ hours total, which is seven days.

MR BASTEN:   Yes, I have 31½, thank you.

HIS HONOUR:   Yes.  Namely, 13 for Ward and Ningarmara, Cheinmora and Kimberley Land Council, one for those who intervene in support, 11 for WA and Northern Territory in all its forms, five for other parties to the appeal, one and a half for those who intervene in support of the latter interests.  Yes, Mr Barker.

MR BARKER:   Thank you, your Honour.  I just wish to inquire about the other category of five hours, whether your Honour understood that that included the Commonwealth?

HIS HONOUR:   No, it does not.  The Commonwealth, at the moment, not being a party, would be part of the one and a half.

MR BARKER:   Yes, thank you.

HIS HONOUR:   Dr Perry.

MS PERRY:   Thank you, your Honour.  Your Honour, I fully appreciate, of course, that the litigation is a matter which raises issues primarily as between the parties but, as your Honour would no doubt be aware, the appeals challenge certain fundamental principles which underpin the Commonwealth’s Act and also raise issues as to the relationship between the Native Title Act and the Racial Discrimination Act, so that the issues affect matters of very vital importance to the Commonwealth.  In addition, in the Full Federal Court, the Commonwealth took a position which could perhaps be described as a middle ground, having regard particularly to its interests in upholding the principles underlying the Act.

HIS HONOUR:   Middle between whom and whom, Dr Perry?

MS PERRY:   I would say broadly between the two camps, the native title claimants and the States on certain of the issues.

HIS HONOUR:   Yes.

MS PERRY:   It is likely that, to some extent, again, the Commonwealth would take a middle ground and it considers that the Court would benefit from having those different positions being put and developed.  It is certainly not intended by the Commonwealth to repeat submissions which are put by the parties but, having regard to its vital interest in supporting the principles on which the Act is based and having regard, also, to the different nature of the points which it would wish to develop, it would say that it may well be that one and a half hours would be insufficient for it to put a submission of any value to the Court.

HIS HONOUR:   Everybody is here to help us, Dr Perry.  Everybody says that they want more time simply to give us yet more assistance.  These, I think, are matters which are better judged when we see the respective submissions of all the parties.  We can then see what additional or different positions are taken by the Commonwealth, that is additional to or different from the positions adopted by the Northern Territory or Western Australia, which would require amplification beyond part of the one and a half hours that it is proposed should be allowed for the interveners on that side of the record.

Rather than simply provoke a rash of submissions by all other parties, which I suspect I will if I am not careful, each party, I think, put on a claim for the amount of time required, ranging from, for example, two hours for HREOC, an intervener, forward.  The division of times is not easy.  I would wish the parties to work according to the division I have now proposed.  It may be that in extremis I would reconsider it at the directions hearing immediately before we start or it may be that the Full Court, in the course of running, would allow some extension of time.

As I have said, the time allowed is based on seven days, not eight days.  I am concerned that that eighth day be kept free but, if it is the wish of the Full Court that it is not and that we would gain assistance from amplified argument, then that will be a decision for the Full Court.

MS PERRY:   Thank you, your Honour.

HIS HONOUR:   Yes.  No doubt, all counsel seek to enter a caveat of the kind just entered.  That may be taken simply as read.  Now, other then than dealing with the precise form of orders to be made to give effect to that general outline of the directions, are there other matters that parties desire to raise?  Is there anything at the Perth end that people want to raise?  Silence is taken as assent until – I see Mr Pullin rise?

MR PULLIN:   There is nothing at the front Bar table, your Honour.  Can I just check that somebody else has a point to mention.

HIS HONOUR:   Yes.

MR PULLIN:   I was asked to mention, your Honour, that Victoria may seek to intervene.  We were contacted this morning and we undertook just to mention the fact that they may wish to intervene and they will make a decision shortly.

HIS HONOUR:   We have no indication, do we, about in whose interests they would consider intervening, or is that simply premature?

MR PULLIN:   We do not know the answer to that, your Honour.

HIS HONOUR:   Yes, thank you.

MR PULLIN:   There is nothing else at this end, your Honour.

HIS HONOUR:   Thank you.  From the Darwin end.

MS WEBB:   There are no other issues from Darwin, your Honour.

HIS HONOUR:   Thank you.  Melbourne, Mr Basten?

MR BASTEN:   Your Honour, I think in our proposal we had hoped to have copies of submissions from the interveners who were supporting the States and Territory before we replied.  Now, the effect, I think, of your Honour’s order will be that our reply will be wound into our revised submission.  Despite Dr Perry’s assurances about her intermediate position, we think it would be useful to us to have submissions from the Commonwealth and anyone else seeking to intervene in support of the respondents before we prepared our revised submissions by 9 February.

What we had suggested in the other matter of Yarmirr, I think, and Dr Perry can correct me if I am wrong, was that we would get the interveners’ submissions by 15 January.  Now, we can be a little bit more relaxed, perhaps, in this matter, but only by a few days, so perhaps by the

Friday of that week we would think it might be appropriate if we could have the interveners’ submissions – 20 January.

HIS HONOUR:   Yes.  Dr Perry.

MS PERRY:   Your Honour, unfortunately that would cause us a problem.  We suggested that perhaps 2 February would be an appropriate date for the interveners’ submissions on the basis that that allowed the parties a two week period to consider the interveners’ submissions before they filed their own submissions or the final version of their submissions.  That was the same period as allowed in Yarmirr.

HIS HONOUR:   Now, when you speak of the interveners are you talking only of interveners in opposition to the Ward/Ningarmara interests or are you talking of interveners more generally.

MS PERRY:   Your Honour, I had in mind all of the interveners in that suggestion.

HIS HONOUR:   Yes.

MS PERRY:   Thinking that, perhaps, your Honour may be envisaging making an order for all of the replies from all parties to be in by 16 February.

HIS HONOUR:   Yes.

MS PERRY:   And, with respect to the date of 16 or 17 January, I will actually be taking a vacation at that time and the Solicitor-General will be overseas, I understand.  It would cause us very great difficulty if that were ‑ ‑ ‑

HIS HONOUR:   Well, 16 January at the moment is only the notice between parties.

MS PERRY:   Yes.

HIS HONOUR:   I am not minded to make 16 January for the interveners.

MS PERRY:   Thank you, your Honour.

HIS HONOUR:   Yes.  Mr Solicitor, what about 2 February from your point of view?

MR SELWAY:   Yes, that would be convenient, your Honour.  The only thing I might ask is that I think your Honour had put on the basis that the parties have already put in submissions and on 9 February and then on 16 February there would be final submissions.

HIS HONOUR:   Revised.

MR SELWAY:   If the interveners could also have the advantage of 2 February submissions being given the opportunity to revise them on the 16th, if they are in the group that is supporting Western Australia and Northern Territory.  So it may be that the submissions put in by ‑ ‑ ‑

HIS HONOUR:   It is meaning two rounds of submissions from interveners, in effect, originals followed by revised.  Is that what you are proposing?

MR SELWAY:   Only the opportunity, your Honour.  I think it unlikely, so far as South Australia is concerned, that we would take that opportunity but it may be that when – the advantage of putting in the submissions earlier is that the parties then have the opportunity to put in their revised submissions taking account of the interveners’ submissions and again, if that either gets rid of a point or ‑ ‑ ‑

HIS HONOUR:   I am minded simply to give a direction.  If it is 2 February then ‑ I have yet to hear other proposed interveners ‑ but interveners’ submissions by 2 February, you will have had the advantage of the first round of parties’ submissions.

MR SELWAY:   Yes.

HIS HONOUR:   Just one other point, Mr Solicitor, while you are on your fee.  It concerns all the interveners.  We have a document management problem looming about all of this and the sort of direction I had in mind is that the interveners put in nine copies of a bundle, a bundle in which they will incorporate a copy of their notice of motion, their affidavit in support, any submissions they want to make about why they should have leave to intervene or why they intervene as of right, plus the submissions that they would make as on the appeal proper, and if we have nine copies of bundles done up in that way then we have less of a paper war happening in the Registry.  Do you have any difficulty with that?

MR SELWAY:   No, your Honour.  That seems a perfectly sensible idea.

HIS HONOUR:   Yes.  Dr Perry, you are content with that?  Now, can I then go back to the interveners or those seeking leave to intervene in Perth?  The proposal is that the interveners put on their submissions all on 2 February.  Does any person who seeks leave to intervene in Perth – just

before I call on that, Mr Basten is making minatory gestures at me.  Yes, Mr Basten.

MR BASTEN:   Your Honour, I thought before they readily adopted that I might just voice my objection so your Honour could consider it.  The problem with 2 February, from our point of view, is that as appellants in both the Yarmirr matter and this matter, it would simply be unhelpful to us.  We would not have a chance to read them, probably, before we had to put our submissions on in response a week later.  That is why I was suggesting 19 January.

HIS HONOUR:   I cannot push it back much further, Mr Basten.  I really do not think I can.

MR BASTEN:   It simply means that those who are against our interests have the extra week and we do not, to reply.  I hear what your Honour says.

HIS HONOUR:   Yes.

MR BASTEN:   The Commonwealth has huge resources.

HIS HONOUR:   I will just get the Deputy Registrar to put the light on over the jury box, Mr Basten.  It seems to have gone out for the moment.  Then, in Perth, do any of those who propose to seek leave to intervene have anything to say against bringing their submissions forward to 2 February?

MR BARKER:   Your Honour, I am sorry, I am not coming on as an intervener.  I just wanted to support Mr Basten, if I could, in taking the 2 February date back by a few days, even if you can, because at that late stage we will be receiving the Commonwealth and South Australia at least, and it will be of great assistance if we can have it for the longest possible period, even if it is just a matter of days.  May it please your Honour.

HIS HONOUR:   It is like running an auction, this directions hearing.  It really is like running an auction and at some point I am going in to consult the vendor and to announce that the property is on the market.  Yes.

MR RITTER:   Can I speak in support of the original date specified by your Honour as 9 February.  In particular, the earlier date suggested of 2 February creates great difficulties for proposed senior counsel that we propose to instruct to settle our submissions if it were required to be done by 2 February.  So we would, at least, seek for ourselves 9 February.

HIS HONOUR:   Yes.  Well look, ladies and gentlemen, there has to be some end to this.  It occurs to me that the immediate solution is that I will fix 9 February, save in the case of South Australia and the Commonwealth. 

If South Australia and the Commonwealth were volunteering to come in earlier than 2 February there is obvious advantage in doing so, but I will simply give directions fixing 9 February for all proposed interveners, other than Commonwealth and South Australia, in respect of whom I will direct 2 February.  Are there other matters that need to be dealt with before I come to the forms of order?

MS PERRY:   Yes, your Honour.

HIS HONOUR:   Yes, Dr Perry.

MS PERRY:   There is one matter I wish to raise.  Your Honour, there has been a discussion, I understand, between my instructing solicitors and instructing solicitors for Western Australia concerning the question of whether a section 78B notice ought to be issued on their appeal.  It is our view that it would appear in ground 2.6 of their notice of appeal they are raising a constitutional issue and that that is an issue which differs from the issue identified in the Ben Ward appeal.  In the Ben Ward appeal your Honour will recall a section 78B notice has been issued.

All of the constitutional matters, broadly speaking, raise questions as to the inconsistency between a particular Act and the Racial Discrimination Act but, in the Ward matter, P67, the specific Acts relate to Rights in Water and Irrigation Act and the Public Works Act and the Argyle Diamond Joint Venture Agreement Act.  In the appeal by Western Australia the question of inconsistency would appear to arise in relation to the conservation reservation.  So, we wanted to raise that issue with the Court, subject to what Western Australia may say.  It did appear to us there was a need for that notice to issue.

HIS HONOUR:   Yes.  You have heard what been said, Mr Pullin.  No doubt attention will be given to it.  It would be most unfortunate if this thing were to derail for want of 78Bs.

MR PULLIN:   Yes, thank you, your Honour.

HIS HONOUR:   Subject to anything that counsel may say about the form of orders that I propose to make, there will be orders in the following form:

1. On or before 4.00 pm Eastern Summer Time, 16 January 2001, each party give notice in writing to all other parties of the precise part or parts of the evidence adduced at trial (by transcript page number, exhibit marking and page of exhibit) to which that party proposes to refer the Court in written or oral submissions on the hearing of the appeal.

1. On or before 4.00 pm Eastern Summer Time, 22 January 2001, the solicitor for the State of Western Australia file and serve on all other parties and on all persons who have given notice of intention to intervene or seek leave to intervene (“the proposed interveners”) an index of all of the material referred to in the several notices referred to in paragraph 1.

1. On or before 4.00 pm Eastern Summer Time, 2 February 2001, the solicitor for the appellants in matter P67 of 2000 (“the Ward parties”) file 10 copies and serve three copies on each other party and one copy on each proposed intervener, of indexed paginated and tabulated volumes containing no more than one copy of the material referred to in the several notices referred to in paragraph 1 arranged as follows:

(a)  transcript of oral evidence in the order in which it was given and recorded;

(b)  exhibits in the order in which they were tendered.

4.  The costs of the preparation of the volumes referred to in paragraph 3 is to be borne in the first instance as to one half by the Ward parties and the second respondents in P67 of 2000 ("the Ningarmara parties") and as to one half by the State of Western Australia and the Attorney-General of the Northern Territory.

5.  On or before 4.00 pm Eastern Summer Time, 9 February 2001, the Ward parties, the Ningarmara parties, the fourth respondents in matter P67 of 2000 ("the Cheinmora parties") and the Kimberley Land Council each file and serve on each other party and on each proposed intervener revised outlines of submissions incorporating any necessary reference to the volumes of evidentiary materials referred to in paragraph 3.

6.  On or before 4.00 pm Eastern Summer Time, 9 February 2001, any of the proposed interveners other than the Attorney-General for the Commonwealth or the Attorney-General for a State serve on each party and on each proposed intervener an outline of submissions in support of its application for leave to intervene and an outline of the submissions it would make on the appeal if granted leave to intervene and file nine copies of a paginated and indexed bundle comprising copies of the notice of motion for leave to intervene, the affidavit in support and exhibits thereto, the outline of submissions in support of the application and the outline of the submissions on the appeal.

7.  On or before 4.00 pm Eastern Summer Time, 16 February 2001, all other parties file and serve on each other party and on each proposed intervener revised outlines of submissions incorporating any necessary reference to the volumes of evidentiary material referred to in paragraph 3.

8.  On or before 4.00 pm Eastern Summer Time, 2 February 2001, the Attorney-General for the Commonwealth, and the Attorney-General for South Australia and the Attorney-General for any other State seeking to intervene serve on each party and on each proposed intervener an outline of submissions in support of its intervention or its application for leave to intervene and an outline of the submissions it would make on the appeal, and file nine copies of a paginated and indexed bundle comprising copies of the notice of motion for leave to intervene, the affidavit in support and exhibits thereto, the outline of submissions in support of the application and the outline of the submissions on the appeal.

9.  Subject to any further order of a single Justice or of the Full Court, direct that:

(a)  the Ward parties, Ningarmara parties, Cheinmora parties and the Kimberley Land Council have a total of 13 hours for the making of all oral submissions in chief, in answer and in reply;

(b)  persons intervening in support of the parties referred to in subparagraph (a) have a total of one hour for oral submissions;

(c)  the State of Western Australia, the Attorney-General for the Northern Territory, the Northern Territory and the Conservation Land Corporation have a total of 11 hours for the making of all oral submissions in chief, in answer and in reply;

(d)  other parties to the appeals have a total of five hours for the making of all oral submissions in chief, in answer and in reply;

(e)  persons intervening in support of any of the parties referred to in subparagraphs (c) or (d) have a total of one and a half hours for oral submissions.

10.  On or before 4.00 pm Eastern Summer Time, 2 March 2001, the parties file a minute of the agreed division of time for oral argument on the hearing of the appeals specifying the starting and finishing times for each speech of each party and the starting and finishing times for speeches by interveners.

11.  In default of agreement on the matters referred to in paragraph 10, parties to file and serve a minute setting out the division of time proposed by that party as between parties and as between that party’s address in chief, in answer and in reply.

12.  Adjourn the matter for further directions on 5 March 2001 at 3.00 pm in Canberra.

13.  Liberty to apply on not less than three days notice in writing to other parties.

14.  Reserve costs.

15.  Certify for counsel.

Now, before calling for comments on the form of that order, I should have said, but did not, that it would seem to me that the order of speeches should follow, or should substantially follow, the order proposed by Western Australia.  It seemed to me that that was the appropriate way to deal with it but I should, first, perhaps, have heard parties on that subject matter before I deal with the question of the form of the orders.  Could I deal then, first, with this question of order of addresses.  Does anybody seek to be heard in Perth against adopting the order proposed by WA?  There is no response from Perth?  Yes, Mr Pullin.

MR PULLIN:   I am just checking, your Honour, that we do not have to ‑ ‑ ‑

HIS HONOUR:   Yes, thank you.

MR PULLIN:   Mr Ritter has raised the point, your Honour, about the time for hearing of the application to intervene, but perhaps that would be dealt with by announcement of the Court at the beginning or on the 5th.

HIS HONOUR:   It is likely that the Court would form a view on the papers that were filed.  If it were able to form a view, it may well be then that there would be an announcement at the commencement of the hearing.  Yes, is there any comment on this - yes, Mr Barker, sorry.

MR BARKER:   It is a very minor point, your Honour, but looking at the State’s proposed order, KLC and Cheinmora are shown at number 7.  Given your Honour’s early directions, I understand that they would come in after the Ningarmara interests at 3.

HIS HONOUR:   I had not intended to depart from, or was not conscious of departing from the Western Australian order of events but ‑ ‑ ‑

MR BARKER:   May it please your Honour.

HIS HONOUR:   Yes.  Is there any comment, then, from Darwin?

MS WEBB:   No, your Honour, both parties in Darwin think that that order is appropriate.

HIS HONOUR:   Yes, thank you.  Then from Melbourne, Mr Basten.

MR BASTEN:   Your Honour, I was just following up on two points, one is Mr Barker’s.  I am not sure if Mr McIntyre would disagree with me, but I would understand from their submissions that KLC and Delores Cheinmora would probably be heard in support of our submissions.  I would have thought it was a mistake to have them heard twice separated, though they may wish to be heard in response to the other appeals by Western Australia, too.  I was wondering if that might not better be dealt with by the parties talking amongst themselves.

HIS HONOUR:   I would be much assisted by that, Mr Basten.  These appeals are going to work if, but only if, the parties’ counsel actually discover the phone numbers of other counsel engaged in the matter.

MR BASTEN:   Yes, I think we will manage that, your Honour.

HIS HONOUR:   Thank you.

MR BASTEN:   With assistance from our instructors.  The only other comment I was going to make was that, and this may not ‑ again, probably is something we should discuss before we raise it with your Honour, but there may be an issue as to who should speak last.  At the moment, it is a bit ‑ ‑ ‑

HIS HONOUR:   It is 20 years, Mr Basten, I think, since I heard the statement made by counsel, “You have to have the last word with the jury”.  So it is refreshing, the plus ca change.

MR BASTEN:   I am glad to hear that, your Honour, it is something that is not often said to me.

HIS HONOUR:   Well, then, any other comment from Melbourne, Mr Keon-Cohen?

MR KEON-COHEN:   I am just wondering, your Honour, what happened to the interveners in P59 and P62.  I do not see that they have been accommodated in the same way as is suggested in P67 and P63.

HIS HONOUR:   I think that is pure oversight, and the interveners in support of the Ward and Ningarmara interests would come at item 3.

MR KEON-COHEN:   Yes.  I will discover phone numbers pretty quickly, your Honour.

HIS HONOUR:   Yes.  Now, do counsel wish to be heard about the form of orders that I have proposed?  In Melbourne, is there any comment?  In Darwin, is there any comment from Darwin?

MS WEBB:   No, your Honour.

HIS HONOUR:   Thank you.  From Perth?

MR PULLIN:   No, your Honour.

HIS HONOUR:   Thank you.  I am sorry that the orders are as voluminous as they are.  I had hoped that I might have had a set of minutes available for all parties but that has proved not to be possible.  In the end, I am afraid, resort will have to be had to the transcript to fill it out.  But there will be orders in the terms I have announced.  Is there any other application that counsel seek to make?  Not in Melbourne.  In Darwin?

MS WEBB:   No, your Honour.

HIS HONOUR:   Thank you.  In Perth?

MR PULLIN:   None, your Honour.

HIS HONOUR:   Thank you.  I will adjourn.

AT 3.47 PM THE MATTER WAS ADJOURNED