Creighton v Commonwealth of Australia

[1994] HCATrans 433

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S81 of 1994

B e t w e e n -

ERNEST CREIGHTON

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Application strike out

paragraphs of statement of

claim

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 16 AUGUST 1994, AT 11.11 AM

Copyright in the High Court of Australia

Creighton 1 16/8/94

MR G.C. CORR: If it please the Court, I appear for

Mr Creighton. (instructed by Brock Partners)

MR D.J. ROSE, QC: If Your Honour pleases, I appear with my

learned friend, MR J.L.B. ALLSOP, for the

Commonwealth. (instructed by the Australian

Government Solicitor)

HIS HONOUR:  Mr Corr.

MR CORR: There are two applications before Your Honour at

the moment: one is that by Mr Creighton that this

matter be heard concurrently with the matters of

Western Australia v The Commonwealth; and then

there is the application by the Commonwealth that

various parts of the statement of claim be struck out and that the hearing of this matter be stayed

until after the determination of the matters in

Western Australia v The Commonwealth.

I submit, Your Honour, it is probably more

appropriate that the Commonwealth's application is heard first since, if they are successful in their application that parts of the statement of claim be

struck out, it would have obviously an effect on

any decision which is made as to whether or not

this matter would be heard at the same time as

Western Australia v The Commonwealth.

HIS HONOUR:  Yes. I am not minded to grant an application

that this matter be heard at the same time as the

other matters fixed before the Court because there

is a very tight timetable for the hearing of those

matters. I feel very strongly that if this case

were added to it, a number of complications would

arise, in particular, the complication of an

overrun.

MR CORR: Indeed, Your Honour.
HIS HONOUR:	So, as at present advised, I hold fairly

strongly to the view that the case should not be

listed for hearing with the other cases.

MR CORR:  Yes. I would not push that matter strongly,

Your Honour, only to the extent that I would

undertake that almost all of the argument would be

by submission and that any oral submissions would

be extremely short.

HIS HONOUR:  Yes, but you cannot foresee all the

eventualities, Mr Corr, that is the problem.

MR CORR:	Indeed not.
Creighton	16/8/94
HIS HONOUR:	But what I was going to say was is there much

point in hearing this application to strike out,

pending the determination of the cases that are to

be heard in September? That is a matter for you,

Mr Rose, rather than anyone else.

MR ROSE:  Yes, if Your Honour pleases, we were concerned

that the pleading be in a form to which we could

respond. In its present form it certainly is not.

HIS HONOUR:  Yes, but I wondered whether or not the

resolution of the cases to be heard in September

might really result in a substantial resolution of

the controversy between the parties in this case.

MR ROSE:  I would expect, Your Honour, that the plaintiff,

if he had the opportunity to replead, probably

would not wish to do that until he received the

Court's judgment in the Western Australian case.

HIS HONOUR: That is right.

MR ROSE:  And then we would respond to whatever he produced

then.

HIS HONOUR:  Yes. I cannot help feeling that the outcome of

the cases to be heard in September is likely to

provide - one hopes it will provide some sort of

illumination and, if it does, it might drastically

affect the pleadings in any event.

MR ROSE:  Yes. There is only one other aspect which I might

just mention, Your Honour, and that is that_this

writ, in common with quite a number of others, does

make claims of such a wide-ranging nature that the

Commonwealth was rather concerned that claims of

that nature be struck out.

HIS HONOUR:	How many other cases are there like this?
MR ROSE:

A number of writs, Your Honour, have been taken

out but not yet served so, I suppose, in a sense,

we are not concerned with those. In fact, there is another writ by the plaintiff here which was issued

and, in fact, is referred to in the writ with which

we are concerned today - referred to in the

statement of claim. More than 12 months has
elapsed since that writ was taken out so that one

has now elapsed and would require leave to be

renewed. I know there are several others: the one

in Tasmania; I think there is one in South

Australia. They follow a pattern - at least, some

of the others do - of making wide-ranging claims

concerning native title issues and it was the

Commonwealth's concern, on that score, which led to

the strike out application in Coe and which

inspired the present application. But I would,

Creighton 16/8/94

with respect, agree with Your Honour's assessment

of the effect of the Western Australian case on

this proceeding.

HIS HONOUR:  Yes. It is difficult to speak with any degree

of certainty but I would be inclined to think that

if I heard argument today on this, it is quite

likely that I might not deliver judgment until

argument is concluded in September just against the

possibility that something may turn up, so to

speak. Now, that is one possibility and it is a

question then, I think of, as it were, endeavouring

to assess the merits of hearing the argument today,

reserving judgment and perhaps delivering judgment

after hearing the argument in September, as against

hearing the argument after September, perhaps even

after the Court has delivered judgment in those

cases.

MR ROSE:  By which time the plaintiff may be seeking to

amend his statement of claim.

HIS HONOUR:  Well, yes. I remember in days gone by people

like Sir Garfield Barwick used to say that even in

cases that are much less complex than this, you did

not get a good statement of claim until it had

been amended three or four times. I should say, I

am prepared to hear the argument today, it just

occurred to me that the parties might give

attention to what I have mentioned and perhaps make

their own assessment of what the desirable course

is.

MR ROSE:  With respect, Your Honour, I think I would wish to

receive instructions on the matter. I am conscious

of the fact that unless there is a good reason for

it, we would not wish to put the Court to

unnecessary time - - -

HIS HONOUR:  Yes. What is your view, Mr Corr?

MR CORR:  I do not want to presume as to what the Court's

decision is going to be in Western Australia v The

Commonwealth.

HIS HONOUR:  No. Well, you would be most unwise to do that.

MR CORR:  Yes, I think no one is prepared to do that at this

stage, but it may well be that, for example, the

Commonwealth may succeed in that particular case

but because the arguments which are being put

forward by Mr Creighton are such that there could

still be some doubt about the validity of the
native title legislation because they are
substantially different to those being put forward

by the State of Western Australia, it is quite

difficult to work out what is the way that is going

Creighton 4 16/8/94

to be most efficacious to resolve all possible

doubts about it, and my friend referred to the fact

that Mr Creighton had lodged a writ but it had not

been served in relation to a native title claim.

Part of the reason for that is the uncertainty

which he has and which a number of other people

have as to the best way of proceeding with native

title claims. Until it is determined finally

whether the Native Title Act is in fact valid, that

that uncertainty will exist.

HIS HONOUR:  Yes. Well, that is one of the aspects I had in

mind.

MR CORR:  Yes. So, I would submit that probably the best

way of dealing with it is for Your Honour to hear

argument today on this particular application and

then probably to reserve judgment until after

Your Honour has heard the arguments in Western

Australia v The Commonwealth, at which time these

particular proceedings may become otiose but, on

the other hand, they may become even more important

that they be heard relatively quickly.

HIS HONOUR:  Thank you. Yes, what do you want to do,

Mr Rose?

MR ROSE:  If Your Honour pleases, I would need to seek

instructions from the appropriate department. We

could do that very quickly in a matter of minutes,

we hope.

HIS HONOUR:  Could you? All right, if you like I will

adjourn for, say, five or 10 minutes to enable you

to get the instructions.

MR ROSE:  Just in view of the phone communication, perhaps

15 might be more - - -

HIS HONOUR:  Yes, 15. Well, you let the Registry know when

you are ready. I will adjourn.

AT 11.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

HIS HONOUR: Yes, Mr Rose?

MR ROSE:  If Your Honour pleases, I have been instructed

that we are not concerned to press ahead with it

and perhaps, subject to Your Honour's views, an

Creighton 16/8/94

appropriate course might be to stand it over for

directions until, say, two weeks after the judgment

in the Western Australian case.

HIS HONOUR:  Yes. Mr Corr, it seems to me that is probably

the best course. I am inclined to think that if I

were to hear argument today, the strong probability would be that after judgment was delivered in these

cases the matter would be restored for reargument

in the light of what the judgment said in that

case. What is more, I think the judgment may

provide illumination which could conceivably be to

the benefit of the plaintiff and perhaps also to

the defendant. So, I think the best thing to do is

to stand it over to a date to be fixed, and I would

have in mind standing it over to, say, a day

approximately two weeks after delivery of judgment

in the cases that are coming on for hearing.

MR CORR: Yes, if it please the Court.

HIS HONOUR:  Very well, I will take that course. It will

stand over to a date to be fixed. As for the other

application, that is your application for
expedition so that it is listed with the September

cases, I refuse that.

MR CORR:  I will withdraw it.

HIS HONOUR: Very well, I grant you leave to withdraw it.

You do not ask for costs of that, do you, Mr Rose?

MR ROSE:	No, Your Honour.
HIS HONOUR:	I make no order as to costs in that

application.

MR CORR: If it please the Court.

AT 11.31 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

Creighton 6 16/8/94