Commonwealth of Australia v Yunupingu (on behalf of the Gumatj Clan or Estate Group) & Ors

[2023] HCATrans 157

[2023] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin  No D5 of 2023

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Appellant

and

YUNUPINGU (ON BEHALF OF THE GUMATJ CLAN OR ESTATE GROUP) AND OTHERS NAMED IN THE SCHEDULE

Respondents

GAGELER CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON MONDAY, 13 NOVEMBER 2023, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MS N. KIDSON, KC appears for the appellant.  (instructed by Australian Government Solicitor)

MR A.R. MOSES, SC appears for the first respondent.  (instructed by Bowden McCormack Lawyers + Advisers)

MR L.S. PEATTIE appears for the second respondent.  (instructed by Solicitor for the Northern Territory)

MR T.M. WOOD appears for the 25th to 28th respondents.  (instructed by MinterEllison)

MR S.A. GLACKEN, KC appears for the 29th and 32nd respondents.  (instructed by Northern Land Council)

MS R.J. WEBB, KC appears with MS C.I. TAGGART for the 34th respondent.  (instructed by Crown Law Queensland)

HIS HONOUR:   There are submitting appearances for the 31st and 33rd respondents.  There is no appearance for the third, fourth to 10th, 12th, 13th, 14th, 15th, 16th, 18th, 19th, 20th, 21st to 23rd and 30th respondents.

I note of those counsel who are appearing, Ms Kidson, Mr Moses, Mr Wood, Mr Glacken and Ms Webb are appearing by video link, and Mr Peattie is appearing telephonically.

The parties have been notified that the Court is available to sit in Darwin in the week commencing 5 August, and specifically for the hearing of this matter, I am proposing three days in that week:  Wednesday the 7th, Thursday the 8th and Friday the 9th.  Helpfully, the appellant and the first respondent have proposed minutes of procedural orders with a view to having the matter ready for hearing during that week.

Having considered the slight differences between those two documents, my inclination, subject to hearing from anyone present this morning, is to adopt the orders proposed by the first respondent but modifying them to incorporate the dates proposed by the appellant.  So, taking the proposed minute of order of the first respondent, order 1 would have the date 28 March 2024, order 2 would have the date 15 April 2024, order 3 would have the date 27 May 2024, order 4 would be 10 June 2024, order 5 would be 1 July 2024, order 6 would be 15 July 2024, and then order 7 would be 7, 8 and 9 August 2024.

Now, I will give each of you virtually present an opportunity to comment on that proposal.  Ms Kidson.

MS KIDSON:   May it please the Court.  We appreciate the Court has now nominated three days for the hearing.  We had contemplated additional time, and that may be required, but working on the three days, we would ask, then, for the page limits that have been proposed by the appellant – which I believe the Gumatj respondents at the moment have got the primary parties with 40 pages, we have asked for 50 pages.  We would ask for that to endeavour to ensure that there having some latitude to record more in writing would then better enable us to meet the three‑day hearing period.

We say that, your Honour, because there are still – the difference between what was at issue in the Full Court and what will be at issue in this Court is not substantially reduced.  Although we have dropped one issue, which was in relation to the mission lease, there are still three very substantial issues, and particularly the first constitutional issue will proceed on a largely different basis than in the Full Court.  Instead of being focused principally on the argument about whether the Court in Wurridjal did or did not produce a ratio overruling Teori Tau, the arguments will be primarily directed to the substantive section 122 issue, which was not traversed in the Full Court at all, and so will need to be fully presented orally and in writing in this Court.

Similarly, on the second constitutional issue, we say that the Full Court did not address the central arguments of the Commonwealth’s case, which was based on the judgment of Justice Brennan in Mabo (No 2), with the consequence that that argument is not before the Court in any form, and that will need to be fully presented orally and in writing.  So, in the Court below, there was a page limit set of 100 pages, and that was in circumstances where there were no factual controversies and all submissions were on points of law.  So, we have really asked for half of that in this Court in circumstances where, we would submit, there is not a substantial reduction in the complexity or number of issues, ultimately, that have to be addressed, and so for that reason we do ask for the page limits that we have provided for in our orders.

In terms of the reply, we have asked for an increase for the appellant’s reply to 25 pages, because certainly our experience in the court below was that all of the respondents will effectively run their own cases with not that much overlap between them, and so the appellant’s reply submissions will be dealing with, really, four substantial sets of submissions running, to a large extent, different arguments, and that is why we ask for the 25‑page reply submission limit.

HIS HONOUR:   Thank you.  Mr Moses.

MR MOSES:   Your Honour, we do not have anything to say in respect of the directions that your Honour has proposed.  I will not respond to what my learned friend just said other than to say that she must have been appearing in a different case than I was below, because we do not agree with the characterisation of what our learned friend has said about how the Full Court approached these matters, but that is a matter that we will deal with at the hearing.

HIS HONOUR:   Thank you.  Mr Peattie, can you hear me?

MR PEATTIE:   Thank you, your Honour.  Yes, I can, and I apologise for my mode of appearance today, there was some technical difficulty, apparently.  We are supportive of the Commonwealth’s comments, your Honour, noting the Court’s indication that the matter would be listed for three days.  We had estimated ourselves that it might be a four‑day matter, noting that it is a matter where there is likely to be interventions as well from other Attorneys‑General.  If the matter is to be confined to three days, we would support the page limit that the Commonwealth has proposed, and otherwise I do not have anything to add to what Ms Kidson said.

HIS HONOUR:   Mr Peattie, who would you anticipate interventions from?  Just the Australian Capital Territory?

MR PEATTIE:   I suspect the jurisdictions with the greatest interest – sorry, your Honour, yes.  In relation to the first constitutional question, the Australian Capital Territory, but also in relation to the other two questions, perhaps South Australia and Western Australia, noting that Queensland already intervened below and therefore is a party now.

HIS HONOUR:   Thank you.  Mr Wood.

MR WOOD:   Thank you, your Honour.  We do not have anything to say in opposition to the course you have outlined.  My clients would resist the proposal of the Commonwealth to have a 50‑page page limit in this matter.  We accept that there might be a need for an increase over the usual 20‑page limit, and that is what is being proposed, but for my clients’ part, we consider the issues could be dealt with in many fewer pages.  For context, my clients’ submissions in the court below were 20 pages, and dealt with only two of the issues, so, as I say, we accept that there could be room for more, but we think 50 is well outside the range in this matter.

HIS HONOUR:   Thank you.  Mr Glacken.

MR GLACKEN:   Your Honour, we do not encourage anything longer than 40 pages.  There are no factual issues or matters of factual evaluation for the Court; 40 pages in‑chief is ample.

HIS HONOUR:   Thank you.  Ms Webb.

MS WEBB:   Your Honour, we do not have anything to say.  We are content with our 20 pages and do not comment on any other page limits.  Thank you.

HIS HONOUR:   Yes.  I am prepared to accede to the Commonwealth’s request for a slightly longer page limit, and so I will change 40 pages to 50 pages in order 1, order 2.1 and order 3.  I will also change 20 pages to 25 pages in order 5.  So, the procedural orders I make are as follows:

1.On or before 28 March 2024, the appellant is to file and serve written submissions not exceeding 50 pages and the appellant’s book of further materials and chronology.

2.On or before 15 April 2024, the second respondent is to file and serve written submissions not exceeding 50 pages and any other respondent or intervener in support of the appellant on any ground is to file and serve written submissions not exceeding 20 pages.

3.On or before 27 May 2024, the first respondent, the 25th, 26th, 27th and 28th respondents and the 29th respondent and 32nd respondent are to file and serve written submissions not exceeding 50 pages and any book of further materials.

4.On or before 10 June 2024, any other respondent or intervener in support of the first respondent on any ground or in support of more than one party or not in support of any party is to file and serve written submissions not exceeding 20 pages.

5.On or before 1 July 2024, the appellant is to file and serve written submissions in reply not exceeding 25 pages.

6.On or before 15 July 2024, the appellant is to file and serve a joint book of authorities.

7.The appeal is listed on 7, 8 and 9 August 2024 in Darwin based on an estimate of three days.

Those are the orders I make.  Thank you for your attendance.  The Court will now adjourn.

AT 9.43 AM THE MATTER WAS ADJOURNED