Commonwealth v Yarmirr & Ors, Yarmirr & Ors v Cth

[2000] HCATrans 327

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D1 of 2000

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

MARY YARMIRR AND ORS

First Respondents

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

PASPALEY PEARLING COMPANY PTY LTD

Third Respondent

NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION

Fourth Respondents

OCEAN TRAWLER PTY LTD

Fifth Respondent

SHINE FISHERIES PTY LTD

Sixth Respondent

M.G. KAILIS GULF FISHERIES PTY LTD

Seventh Respondent

PAVALINA HENWOOD

Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST

Ninth Respondent

Office of the Registry
  Darwin  No D2 of 2000

B e t w e e n -

MARY YARMIRR AND ORS

Applicants

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

PASPALEY PEARLING COMPANY PTY LTD

Third Respondent

NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION

Fourth Respondents

OCEAN TRAWLER PTY LTD

Fifth Respondent

SHINE FISHERIES PTY LTD

Sixth Respondent

M.G. KAILIS GULF FISHERIES PTY LTD

Seventh Respondent

PAVALINA HENWOOD

Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST

Ninth Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST 2000, AT 10.34 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth:   May it please the Court, in the first of those matters I appear with my learned friend, MS M.A. PERRY, for the applicant.  In the second, I appear for the second respondent, with my learned friend, MS M.A. PERRY.  (instructed by the Australian Government Solicitor)

MR J. BASTEN, QC:   Your Honours, in the first of the matters, I appear with MR K.R. HOWIE for the first respondents, Yarmirr and others.  In the other matter, I appear for the applicants, again with MR K.R. HOWIE.  (instructed by the Northern Land Council)

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory:   May it please the Court, in each matter I appear for the Northern Territory with MS R.J. WEBB.  Ms Webb will be presenting the argument on behalf of the Northern Territory.  (instructed by the Solicitor for the Northern Territory)

MR G.E. HILEY, QC:If the Court pleases, I appear with my learned friend, MR N.J. HENWOOD, for the third to seventh respondents in both appeals.  (instructed by Cridlands)

GUMMOW J:   I think that now deals with it all.  I should add though that no appearance has been filed in the proceedings on behalf of Pavalina Henwood, the eighth respondent in both matters.  The Senior Registrar indicates that the solicitors for the applicant in matter No D1/2000 have filed an affidavit deposing to service upon the eighth respondent in the application for special leave.  She has also been advised by the solicitors for the applicants in both matters that the eighth respondent did not participate in the hearing of the appeals in the Full Court.

The ninth respondent in matter No D2/2000, the Arnhem Aboriginal Land Trust, has filed an appearance indicating that it will abide the order of the Court, save as to costs.  Yes, Mr Solicitor for the Commonwealth.

MR BENNETT:   If your Honour pleases.

GUMMOW J:   Before we get any further, I should indicate on behalf of the Court to the parties that at present we would be minded to grant leave in each of the relevant applications unless we are dissuaded from that course by any opponent.

MR BENNETT:   Yes.  I would not wish to say any more in support of the application in that event, your Honour.  I would, of course, wish to be heard in opposition to the second application.

GUMMOW J:   That may have a swing door effect, of course, Mr Solicitor.

HAYNE J:   Otherwise known as “one in, all in”, I think, in union parlance, Mr Bennett.

MR BENNETT:   Well, your Honour, I will take that risk and say a few words if I may.  Do your Honours wish to hear me on that at this stage or after other people have ‑ ‑ ‑

GUMMOW J:   No, we will hear what the reaction is of Mr Basten, Mr Pauling and Mr Hiley.

MR BENNETT:   Yes, if your Honour pleases.

MR BASTEN:   Your Honours, we do not have any objection.  I think we said in our written submissions we did not take issue with the first and second questions the Commonwealth sought to raise.  We did raise an issue in relation to the third question.  All we wish to say in relation to that is that some of the suggestions about the evidence and the findings of fact made in the Commonwealth’s reply are simply not correct.  But if it is, as it were, an issue which may arise in tandem with the other issues, we have nothing further to say to the Court about that matter.

MS WEBB:   Your Honours, in view of the indication from the Bench we will not advance the matters any further.

GUMMOW J:   Thank you.

MS WEBB:   Thank you.

GUMMOW J:   Mr Hiley.

MR HILEY:   We are in the same position, your Honours.  We simply rely on our written submissions.

GUMMOW J:   Yes, thank you.  Yes, Mr Solicitor.

MR BENNETT:   Your Honour, I no longer wish to be heard in opposition to the application.

GUMMOW J:   Yes, very well. 

There will be a general grant of leave in respect of each of the applications.  It appears to us that the preparation of the appeals would be facilitated with some judicial intervention.  When the notices of appeal have been filed the matters will be listed before a Justice, which will be one of us, to see what can be done to get the matter in as good shape as it can be for hearing.  We have in mind, for example, the attendance by solicitors to the question, the extent to which the appeal record that was used in the Full Court could be utilised here or can be diminished here or it needs to be supplemented, matters of that sort, and they can be sorted out before the parties settle the contents of the appeal book, for example.

KIRBY J:   Can you give any indication of your estimate of how long the matter would take in Court, given the grants of special leave to both sides?

MR BENNETT:   We have given some thought to that, your Honour, and we would have thought three days.

GUMMOW J:   Yes.  That can be further explored when things are a little more crystallised.

MR BENNETT:   Yes.  It took, of course, longer than that before the Full Court.  It took five there.

GUMMOW J:   Yes, we understand that.

MR BENNETT:   If your Honour pleases.

GUMMOW J:   All right.  There will be, as I said, the general grants in each matter and when the notices of appeal have been filed, by arrangement with the Senior Registrar, the matters will be listed for directions before a Justice.

AT 10.40 AM THE MATTER WAS CONCLUDED