Commonwealth of Australia v Griffiths and Jones on behalf of the Ngaliwurru and Nungali Peoples & Anor

[2018] HCATrans 104

[2018] HCATrans 104

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin   No D1 of 2018

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Appellant

and

MR GRIFFITHS AND LORRAINE JONES ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Office of the Registry
  Darwin   No D2 of 2018

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

MR GRIFFITHS AND LORRAINE JONES ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES

First Respondent

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

Office of the Registry
  Darwin   No D3 of 2018

B e t w e e n -

MR GRIFFITHS AND LORRAINE JONES ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES

Appellant

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Directions hearing

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO DARWIN AND SYDNEY

ON WEDNESDAY, 30 MAY 2018, AT 11.59 AM

Copyright in the High Court of Australia

____________________

MR S.A.GLACKEN, QC:   If the Court pleases, I appear with MR G.A. HILL for the claim group in each proceeding.  (instructed by Northern Land Council)

MS S.L. BROWNHILL, SC, Solicitor‑General for the Northern Territory:   If the Court please, I appear with MR T. MOSES for the Northern Territory in all three appeals.  (instructed by Solicitor for the Northern Territory)

MR S.B. LLOYD, SC:   May it please the Court, I appear for the Commonwealth in all three proceedings.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Mr Glacken.

MR GLACKEN:   Your Honour, before addressing the three or four items that we need to deal with today, can I mention a preliminary matter?

HIS HONOUR:   Yes, certainly.

MR GLACKEN:   I have informed the parties and informed the court officers the first‑named appellant has died recently.  At this point we are seeking instructions as to whether that might require any request for a change in title of the proceeding.  We are comfortable for the time being to proceed by reference to Mr Griffiths but not by reference to his first name.  Hence, your Honour might have noticed the way the matter was called before. 

Our understanding is that it does not affect the continuation of the proceeding - the second‑named appellant has authority to continue with the proceeding.  I just mention it now in case we have to approach the Court at a later time after conferring with the parties.

HIS HONOUR:   There will need to be a change presumably given that the man is now deceased - obviously ceased to be a party.

MR GLACKEN:   Yes, it is a question of whether it is a change in description with his ‑ ‑ ‑

HIS HONOUR:   Name deleted.

MR GLACKEN:   ‑ ‑ ‑ with him still remaining a party, so to speak – parenthesis - or whether a removal, for example.  The latter is not likely, not to be preferred.

HIS HONOUR:   I understand.

MR GLACKEN:   Your Honour, I suppose the first matter to deal with is our summons.  We move on the summons filed on 22 May and we read two affidavits accompanying that summons being the affidavit of Tamara Cole, 17 May, and an affidavit of Kingsley Palmer, 17 May.  We apologise, your Honour, that an exhibit within Ms Cole’s affidavit has been miscopied.

HIS HONOUR:   No, thank you, it has been rectified.

MR GLACKEN:   Yes, and could we just take it that the affidavit is read with that correction.

HIS HONOUR:   You may.  Both affidavits are taken to be read.

MR GLACKEN:   Your Honour, in view of the written material that has been filed, including the written submissions, I did not propose to address on the substantive matters, save to make two brief remarks.  The first concerns the manner in which the application is put.  We put the application in two alternative ways and we are happy with the Court acting on either of those bases.  But the first is that in view of the procedural history and the orders made below respecting the material in issue, is that we say that the orders we seek today are necessary to prevent the prejudice to the administration of justice for the same reason identified by Justice Gageler in Obeid.  We mention that in the written submissions.

The second alternative way is by reference to, for example, the dicta of this Court in Hogan, referring to ABC v Parish, a Full Federal Court decision, where the parties had proceeded on the basis that certain information was in confidence even though contractual equitable obligations did not attach to the information. 

Your Honour will see that we rely on four features ‑ the findings of the trial judge as to the value of secrecy of information; secondly, the fact

that the information was received in restricted circumstances and treated confidentially by the parties and the courts; thirdly, the nature of the information itself being restricted under Aboriginal traditions of the groups concerned according to gender and seniority; and, fourthly, the customary obligations that attach to the information and the perceived adverse risks associated with unrestricted disclosure, the last two points being the subject of the opinion evidence by Dr Palmer.  The second remark we wanted to make, your Honour, concerned the form of the orders.

HIS HONOUR:   Yes.

MR GLACKEN:   I have two comments to make.  Does your Honour have the form of the orders annexed to the summons?

HIS HONOUR:   Yes, thank you, I do.

MR GLACKEN:   We appreciate that paragraph 1(b) may not be needed in view of the policing of the file by the Registry and, for example, rule 4.07 of the Court’s Rules but, nonetheless, it would seem a prudent safeguard.

HIS HONOUR:   Mr Glacken, I do not disagree with that but I was going to suggest that there be an additional paragraph to (c) immediately to follow it, to which (b) would be subject, that a copy of the gender restricted volume may be provided to each Justice of the Court.  I say each Justice because it is proposed that the matter be heard by a Court constituted by all Justices.

MR GLACKEN:   Yes, we adopt that.  It is the substance of what is in the current (c)(i) and (ii) but, nonetheless, we adopt that and it is perfectly fine.  The second point, your Honour, is an error on our part.  Proposed order 3, reserving liberty to apply refers to “any party”.  It should read “any party or intervener”.  That is all I wanted to say on the summons, your Honour.

HIS HONOUR:   Thank you very much.  Madam Solicitor.

MS BROWNHILL:   Your Honour, we have no objection to the orders being made and have indeed consented to them.

HIS HONOUR:   Thank you.  Mr Lloyd.

MR LLOYD:   Your Honour, likewise, we do not object to the orders being made.  We do note that in my friend Mr Glacken’s submissions in paragraph 9, or at least in a footnote to paragraph 9, there is a hint of a second basis for the orders which are in relation to the safety of persons.  We would not consent to it on that basis but because we consent to it on the other basis nothing turns on that. 

The other thing I would say, and this is not really directly related to the orders, but when your Honour sees the transcript your Honour will see that it is a redacted transcript.  So obviously the transcript with the redactions is to be subject to the non‑publication order.  The redactions were generated in the court below on a basis that - as I understand it and Mr Glacken may want to say something about this - but it was agreed between the parties that the redactions were not relevant to the matters in dispute.  So the court did not need to see the redactions and no one – no party would be relying upon anything that was in the redactions to help or hinder their case in relation to the matters in dispute.  We proceed on that basis but subject to all of that, we consent, your Honour.

HIS HONOUR:   Yes, thank you.  Mr Glacken, that remains the case, I take it, so far as the redactions are concerned?

MR GLACKEN:   Yes, your Honour.  The history is deposed to in the affidavit.  It is apparent from the nature of the grounds of appeal before the Full Court, which are repeated in this Court, that the grounds went to an issue of causation and so far as the government parties are concerned the evidence relevant to the issue of causation is the un‑redacted parts of the material.

MR LLOYD:   Your Honour, sorry.

HIS HONOUR:   Not at all, Mr Lloyd.

MR LLOYD:   Yes, your Honour.  There was another matter I wanted to see if I might raise.  My client currently at the moment, I think, has responsibility to put in a consolidated joint book of authorities by 8 June.  I think that date was selected because at the time the Court envisaged the hearing would be in June.  At the moment we have put together a list which we have given to the parties which includes all of the authorities from all of the submissions.  So far that list is 38 pages long and includes 320 authorities.  There then has to be a process whereby the senior counsel for each party says which ones they actually propose to read and we have to copy them.  I think ‑ ‑ ‑

HIS HONOUR:   How much longer do you need?

MR LLOYD:   Well, we were wondering if it could be – if the hearing was going to be not before August, if we could have to the end of July if that would not inconvenience the Court.  We could do it faster if the Court wanted the material faster.

HIS HONOUR:   The only reason I would like it a little faster is that for the purpose of preparation July is not a bad time.

MR LLOYD:   Certainly.  Well, perhaps by the end of June?

HIS HONOUR:   Certainly.  Thank you.

MR LLOYD:   Thank you, your Honour.

HIS HONOUR:   Mr Glacken. 

MR GLACKEN:   There only seems to be one other matter to mention which in a way does not need to be mentioned, your Honour, because it has fallen away, but the 78B notice that we have filed, I think the position is that we have those Attorneys who are appearing and intervening already here and all the others have responded that they do not intend to intervene.

HIS HONOUR:   It is a happy circumstance.

MR GLACKEN:   Yes.  Nothing added, so to speak.

HIS HONOUR:   Thank you.  In matter D1 of 2018:

1.The time in which the first respondent may file and serve the notice of contention dated 4 May 2018 set out in the first respondent’s book of further materials at pages 688 to 689 is extended, nunc pro tunc, to 4 May 2018 and any further requirement to file and serve that notice of contention is dispensed with.

In each of matters D1, D2 and D3 of 2018:

2.The page number limit for the written submissions of Mr Griffiths and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples is increased, nunc pro tunc, from 50 pages to 55 pages.

3.The page number limit for the reply of the Commonwealth of Australia is increased, nunc pro tunc, from 10 pages to 20 pages.

4.The time in which the Commonwealth of Australia is to file a supplementary book of further materials is extended to 4.00 pm on 1 June 2018.

5.The time in which the Commonwealth of Australia is to file and serve the consolidated joint book of authorities is extended to 30 June 2018.

6.Pursuant to section 77RE(1)(b)(i) and section 77RG(4) of the Judiciary Act 1903 (Cth), and on the ground in section 77RF(1)(a) that the orders are necessary to prevent prejudice to the proper administration of justice, publication and disclosure of the material contained in the volume titled “Commonwealth’s Book of Further Materials Volume Three (Gender Restricted) (Pages 608–662)” (“the gender restricted volume”), copies of which were filed on 6 April 2018 in a sealed bag, be restricted in the following manner:

(a)the gender restricted volume and any copies shall be kept separate and sealed in an envelope or bag marked “Evidence Restricted by Orders of the Court made on 30 May 2018 in Appeal Proceedings D1 of 2018, D2 of 2018 and D3 of 2018”;

(b)subject to Order 6(c), any copy of the gender restricted volume being kept in the office of the Registry is not to be available for inspection without an order of a Justice of the High Court, any such order to be made after giving written notice to the parties in appeal proceedings D1 of 2018, D2 of 2018 and D3 of 2018;

(c)a copy of the gender restricted volume may be provided to each Justice of the Court;

(d)the gender restricted volume may only be accessed by and its contents disclosed to:

(i)a Justice of the Court hearing any application in relation to access to the gender restricted volume, including the application for these orders and any application mentioned in Order 6(b) and Order 7;

(ii)each Justice comprising the High Court of Australia constituted for the purposes of hearing and determining the appeals in proceedings D1 of 2018, D2 of 2018 and D3 of 2018;

(iii)any associate or other Court staff as directed by a Justice mentioned at Order 6(d)(i) or Order 6(d)(ii);

(iv)any male counsel or legal representative of any party or intervener in the appeals in proceedings D1 of 2018, D2 of 2018 and D3 of 2018.

(e)any male counsel or legal representative mentioned in Order 6(d)(iv) may disclose the contents of the gender restricted volume to any male party or male officer of a party or intervener, other male counsel or legal practitioner or male expert anthropological expert witness engaged by a party or intervener for the purpose of conducting the appeals in proceedings D1 of 2018, D2 of 2018 and D3 of 2018;

(f)subject to Orders 6(a) to (e), there be no publication or other disclosure of information tending to reveal the contents of the gender restricted volume in relation to the hearing of the appeals in proceedings D1 of 2018, D2 of 2018 and D3 of 2018.

7.Subject to any further order, the period for which these orders will operate that is specified for the purposes of section 77RI of the Judiciary Act 1903 (Cth) is until 28 days after this Court makes final orders disposing of the appeals in proceedings D1 of 2018, D2 of 2018 and D3 of 2018.

8.Reserve liberty to any party or intervener to the appeal proceedings or any person listed in section 77RG(2) of the Judiciary Act 1903 (Cth) to apply by summons and supporting affidavit for any order varying Orders 6 and 7.

9.The costs of today’s application be costs in the appeals.

Finally, lady and gentlemen, I should announce that subject to final confirmation, which will not be before the second week of June, it is intended that the appeals be heard in Darwin in the Supreme Court of the Northern Territory on 3 to 6 September of this year.  It may be a little tight given the dimensions of the courtroom and the number of counsel involved in the proceeding but we are doing our best to accommodate those difficulties so far as they can be.  Is there anything further?

MR GLACKEN:   Not on our part, your Honour.

HIS HONOUR:   Thank you, Mr Glacken. 

MR LLOYD:   No, your Honour.

MS BROWNHILL:   No, your Honour.

HIS HONOUR:   Thank you.  Adjourn sine die.

AT 12.16 PM THE MATTER WAS ADJOURNED