Clodumar v Nauru Lands Committee

[2011] HCATrans 321

[2011] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M37 of 2011

B e t w e e n -

KINZA CLODUMAR

Appellant

and

NAURU LANDS COMMITTEE

Respondent

Directions hearing

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON TUESDAY, 22 NOVEMBER 2011, AT 9.31 AM

Copyright in the High Court of Australia

MR D.J. WILLIAMS, SC:   If the Court pleases, I appear for the appellant.  (instructed by Leo D. Keke)

MS K.L. WALKER:   If the Court pleases, I appear for the respondent.  (instructed by Department of Justice and Border Control – Republic of Nauru)

HIS HONOUR:   Yes, Mr Williams.  Now, what seems to be happening?

MR WILLIAMS:   Well, there has been a further development this morning, your Honour.  I do not know whether your Honour has seen ‑ ‑ ‑

HIS HONOUR:   Yes, I have an affidavit sworn on the 21st by Mr David Aingimea.

MR WILLIAMS:   Yes, that is right, your Honour.  That is so, and we received that overnight as well.  It would appear that Mr Aingimea seeks to act for the parties who we would seek to join in order ‑ ‑ ‑

HIS HONOUR:   Yes, that is right.

MR WILLIAMS:   ‑ ‑ ‑ to meet our learned friend’s point that the appeal might otherwise be incompetent.  Now, there is something of a disconnect between Mr Aingimea’s evidence as to the people who he represents and Mr Keke’s evidence as to the people who we seek to join inasmuch as Mr Keke’s affidavit indicated that two of the persons who were listed in the Gazette are dead.

HIS HONOUR:   Right.

MR WILLIAMS:   He identified that a number of other persons appear to be the persons who would become interested on the death of those persons by reason of their own testamentary arrangements, some of whom are already on the list of 21 because, of course, we are dealing with, essentially, family groups here.

HIS HONOUR:   Yes.

MR WILLIAMS:   Two of whom are not on that list but are in the list of people who we would seek to join by our summons.  Now, I would hope that that could be corrected.  I imagine that if they are people who Mr Aingimea identifies as having the attitude that he indicates which, of course, is an entirely understandable attitude, it would be hoped that the other two persons who we seek to join would have a similar attitude, but we cannot be sure at the moment.  We would certainly hope that that might be able to be dealt with.

HIS HONOUR:   Yes.

MR WILLIAMS:   Does your Honour have Mr Keke’s affidavit?

HIS HONOUR:   Yes, I do.  I think it is not yet filed in Court, is it?

MR WILLIAMS:   That is correct, your Honour.  It was only sworn in Nauru on Friday.

HIS HONOUR:   Yes.

MR WILLIAMS:   I seek leave to rely on a copy, if I may, being a copy that your Honour has.  The reason I need to do that is that the only ‑ ‑ ‑

HIS HONOUR:   Well, this copy I have can be filed in Court.

MR WILLIAMS:   Thank you, your Honour.

HIS HONOUR:   I have a photocopy.  It can be filed in Court.

MR WILLIAMS:   Yes, the original is on its way with Mr Keke, in fact, later this week when he comes to Australia.

HIS HONOUR:   Yes.

MR WILLIAMS:   There is only air travel between Nauru and Australia twice a week so the airmail is not that crash hot.

HIS HONOUR:   No.

MR WILLIAMS:   So Mr Keke identifies in his affidavit in paragraph 5 starting on page 2 the differences between the list in the Gazette and the list of persons identified in our summons. 

HIS HONOUR:   Yes, so paragraph 5 has the two people named there.

MR WILLIAMS:   Yes, so those people, presumably, are not therefore on the list of people who Mr Aingimea so far represents.  That said, we have no reason to think they would have a different attitude.  We simply do not know for sure.

HIS HONOUR:   Yes, I follow.  Now, this affidavit of Mr Aingimea – it looks like a photocopy I have of that.  Do you have a photocopy of it?

MR WILLIAMS:   I do.  I have a scanned copy.

HIS HONOUR:   It has been scanned, yes.  Well, that had better be filed in Court, too, I think.

MR WILLIAMS:   Yes.  It was sworn only yesterday.  There is no way that the original could have got ‑ ‑ ‑

HIS HONOUR:   Yes, that is right. 

MR WILLIAMS:   There are really two issues that are troubling us at the moment, your Honour, about the readiness of the appeal or, I should say, the proceeding, given that it is in the Court’s original jurisdiction.  The first one is this question of joinder.  We do seek to join all of the people we identify in order to eliminate the possibility that the appeal might be found incompetent in the absence of interested persons and, of course, we are aware of what the Court had to say in the John Alexander Case recently about that matter.  It looks as though, in the next day or two it is likely that that could be put to bed by Mr Aingimea most probably being able to seek and obtain instructions from the two extra individuals in the same way that he has.

HIS HONOUR:   Yes.  Well, subject to what Ms Walker says, I could make an order now joining collectively as second respondent these persons named in Mr Aingimea’s affidavit sworn 21 November.  That is 22 people in all, is it not?

MR WILLIAMS:   Yes, it is, your Honour.

HIS HONOUR:   Yes, and reserve leave at the hearing of the appeal to add any further persons to that list of persons, collectively being the second respondent.  Does that sound sensible?

MR WILLIAMS:   It does indeed, your Honour.

HIS HONOUR:   Then the Lands Committee, Ms Walker’s client, would become the first respondent and these people, collectively, would be the second respondent. 

MR WILLIAMS:   Yes.

HIS HONOUR:   Now, would anything else then need to be done to preserve the hearing date of the appeal.

MR WILLIAMS:   There remains the question of our desire to file reply evidence, your Honour.  That is dealt with in the second part of Mr Keke’s affidavit.  This arises from the fact that although the appeal was instituted in May and although the appeal book was settled, I think, in about August, in October, that is to say last month, the present respondent, or the first respondent now, the Nauru Lands Committee, filed and served two affidavits on substantive matters going to whether the evidence that we seek to adduce should be admitted ‑ ‑ ‑

HIS HONOUR:   Yes.

MR WILLIAMS:   There is no explanation been given as to why that took so long.  Those affidavits are not in the appeal book but we anticipate that our friends would seek to rely on that material even though, at the moment at least, they have not sought any leave to do so, but assuming that they do, we are in the process of gathering some evidence in opposition which I anticipate we would be in a position to file and serve this week. 

I am told overnight by email that a person who is referred to in Mr Keke’s affidavit as being a person with personal knowledge of what happened to the original document, being the order signed by the President of Nauru at the time approving the land transfer, has yesterday expressed a willingness to give an affidavit as to his knowledge of those matters and, indeed, to produce the original document.  We would seek to have that evidence ‑ ‑ ‑

HIS HONOUR:   That would be very important, obviously.  Now, I have to say to both of you that if it did appear to the Full Court that there was this additional evidence, which may have to be tested, that the proper outcome in this Court would be simply to refer the matter back at first instance for a rehearing.

MR WILLIAMS:   That is all we ask, your Honour.

HIS HONOUR:   Rather than the Full Court itself getting enmeshed in the strengths and weaknesses of the new evidence.

MR WILLIAMS:   Except insofar as our learned friends would say, your Honour, that the Court needs to enmesh itself at least far enough into that question to determine whether there is enough to send it back.

HIS HONOUR:   Yes, indeed.

MR WILLIAMS:   But if there is enough to send it back, your Honour, that is the only relief we seek. 

HIS HONOUR:   Yes.  Well, we then reach the position that, making allowance for Ms Walker’s point that you have to have enough for the Full

Court at least to have a provisional view as to there being some substance, I cannot see all that being got together sufficiently by Wednesday week.

MR WILLIAMS:   Well, certainly if the evidence was to be tested by cross‑examination that would be impossible on Wednesday week, your Honour, probably for two reasons.  One is ‑ ‑ ‑

HIS HONOUR:   Nothing is going to be tested by cross‑examination in the Full Court, I can assure you.

MR WILLIAMS:   Yes.  Well, in that case, your Honour, it is simply a question of having the evidence before the Court by affidavit.

HIS HONOUR:   Yes, that is right.

MR WILLIAMS:   We can do that this week if it gives our friends and the Court sufficient time to deal with the material.

HIS HONOUR:   Yes.  I am not sure that is going to work out.  We have these communication difficulties, that is the problem, is it not?  With the best will in the world things can go wrong.  What do you say, Ms Walker?  Should I vacate the date at the moment?

MS WALKER:   Your Honour, no, we would resist any vacation of the date.  My learned friend has had some six weeks since the evidence of the respondent was filed on 11 October and it is very late at this point in time to be proposing possible new evidence.  We have not seen that evidence and we would contend that the hearing date ought not to be vacated.

HIS HONOUR:   Yes, well that is nice and belligerent, but we have to be fairly sensible here.

MS WALKER:   Indeed, your Honour, but if my learned friend has indicated that he is confident that evidence could be filed this week, certainly the respondent would have no objection to receiving that evidence and having time to prepare.  I mean, I understand your Honour’s concerns in relation to the communications with Nauru, but email does provide an opportunity for reasonably swift communication.

HIS HONOUR:   Yes.  Right, thank you.

MS WALKER:   Sorry, your Honour, can I just indicate that in relation to your Honour’s proposition to join the group of second respondents and reserve the possibility of an application by leave to join further respondents at the hearing, we are content with that course.

HIS HONOUR:   Yes, thank you.  There is another question I wanted to ask you, Ms Walker.  Your client is a public body, obviously enough.

MS WALKER:   Yes, your Honour.

HIS HONOUR:   What is its interest in being a contradictor for the appellant?

MS WALKER:   Well, your Honour, initially, of course, it was the only party.

HIS HONOUR:   Yes, I know.

MS WALKER:   In those circumstances it considered that it was appropriate for it to file submissions dealing with the issues raised.  It has an interest in ensuring that its processes are proper and that it acts upon correct and true evidence.

HIS HONOUR:   That undoubtedly is so, but ordinarily a body like the Registrar‑General or whatever has a fairly limited role in putting to the Court what its procedures are and how it goes about discharging its statutory or other responsibilities rather than being an active contradictor.  But you say there is no other candidate as a contradictor at the moment.

MS WALKER:   That is correct, your Honour, and the authorities on the Hardiman principle do suggest that it is not an absolute principle.

HIS HONOUR:   Yes, that is true.

MS WALKER:   It is simply a practice and where there is no real contradictor then, in my submission, it is appropriate for a body such as the Lands Committee to take a moderately active role.

HIS HONOUR:   Yes, I see the point.  Thank you.

MS WALKER:   Thank you, your Honour.

HIS HONOUR:   This is what I propose:

1.The affidavits of Mr Keke sworn 18 November 2011 and of Mr Aingimea sworn 21 November 2011 be filed in the form presently received by the Court.

2.Direct that there be added together as the second respondent the 22 persons listed in the affidavit of Mr David Aingimea sworn 21 November 2011 and that the Nauru Lands Committee be designated first respondent.

3.Reserve leave to the appellant on the hearing of the appeal to seek leave to add to the second respondent the two persons named in paragraph 5 of the affidavit of Mr Leo Dep Keke sworn 18 November 2011.

4.Any further affidavits on which the appellant seeks to rely be filed and served on the first respondent or before 9 December 2011.

5.Any affidavits in response on behalf of the first respondent be filed and served on the appellant on or before 13 January 2012.

6.Any further written submissions by the appellant and the first respondent be filed and served as follows –

Now, are you going to need further written submissions, Mr Williams?

MR WILLIAMS:   I think we would, your Honour.

HIS HONOUR:   I think you would, too.  Do you have a date in mind for that?

MR WILLIAMS:   Shortly after the material is closed, your Honour.

HIS HONOUR:   That is right.

MR WILLIAMS:   Yes.  I am available throughout January so I can do them in a short time after the close of the material.

HIS HONOUR:   All right.

MR WILLIAMS:   I just missed the date in order 5, your Honour, I am sorry.

HIS HONOUR:   Order 5 is 13 January.

MR WILLIAMS:   Yes.  Perhaps if we could have a week after that, your Honour.

HIS HONOUR:   The 20th.

MR WILLIAMS:   Yes, your Honour.

MS WALKER:   Your Honour, could I just indicate that I believe that senior counsel for the respondent will not be available at that time in January, so we might have some difficult accommodating that timetable.  If it perhaps could be extended until the end of January?

HIS HONOUR:   Yes, that is all right. 

6.Any further written submissions by the appellant be filed and served on the first respondent on or before 20 January and be filed and served by the first respondent on the appellant –

What date do you suggest, Ms Walker?

MS WALKER:   Perhaps the week after the Australia Day weekend.  I am sorry, your Honour, I do not have a calendar in front of me. 

HIS HONOUR:   Yes.

MS WALKER:   That would be around 30 or 31st, perhaps.

HIS HONOUR:   That would be 3 February, I think.

MS WALKER:   Yes, that would be satisfactory.  Thank you, your Honour.

on or before 3 February and in reply be filed and served by the appellant on the first respondent on or before ‑ ‑ ‑

MR WILLIAMS:   Again, your Honour, if we could have a week after that.

HIS HONOUR:   So, 10 February?

MR WILLIAMS:   Yes, your Honour.

HIS HONOUR:   Then I had better have:

7.Liberty to apply to a Justice on –

what, five days written notice?

MR WILLIAMS:   Thank you, your Honour.

HIS HONOUR:   In case something else turns up.

8.Costs of today be costs of the appeal.

9.Vacate the date presently fixed for hearing of the appeal with a view to relisting for the March sittings if the Registrar be satisfied that the appeal is then ready.

I will just indicate those dates again - in order 4 - “on or before 9 December”; in order 5 - “13 January”; in order 6 - “20 January, 3 February then in reply on the 10th”.  Is everything else clear enough?

MS WALKER:   Yes, your Honour.  Could I perhaps just request that the respondent have its costs thrown away in view of the adjournment?  I am instructed that there may well be some such costs.

HIS HONOUR:   Yes, there may be, but I will leave that for the Full Court, I think.

MS WALKER:   Very well, your Honour.  Thank you.

HIS HONOUR:   Just put a red flag in your memory to re‑agitate order 8 before the Full Court when it is clear how it is all washing out.

MS WALKER:   I will.

HIS HONOUR:   All right, is there anything else.

MR WILLIAMS:   No, your Honour.

HIS HONOUR:   I will now adjourn.

AT 9.57 AM THE MATTER WAS ADJOURNED