Cwealth of Aus Ex parte- Wardens of SW Mineral Field

[1997] HCATrans 77

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P12 of 1997

In the matter of -

A Declaration in respect of sections 52 and 109 of the Constitution of Australia and the Mining Act 1978 (Western Australia)

And in the matter of -

An Application for a Writ of Prohibition against:

THE WARDENS OF SOUTH WEST

MINERAL FIELD

First Respondents

and

MINERAL SAND MINING & DEVELOPMENT PTY LTD

Second Respondent

and

ENMIC PTY LTD

Third Respondent

Ex parte -

THE COMMONWEALTH OF AUSTRALIA

Prosecutors

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 1 APRIL 1997, AT 10.15 AM

Copyright in the High Court of Australia

_____________________________

MR H.C. BURMESTER:   If it please the Court, I appear with my friend, MR M.J. HAWKINS.I understand in this matter the respondents do not intend to be appearing.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  Is there a formal notification to that effect, Mr Registrar?

DEPUTY REGISTRAR:   No, there is not, your Honour, because it is an ex parte application.

HIS HONOUR:   Yes.  They have not been served; there is no need to call them.  Yes, Mr Burmester.

MR BURMESTER:   If it please the Court, your Honour, I would ask Mr Hawkins to outline the facts and the background of the Mining Act.

HIS HONOUR:   I am familiar with the material.  Quite frankly, the problem I have is why, in the exercise of my discretion, I should grant the relief sought in the notice of motion and why should not the matter be left in Western Australia?  If I granted the order nisi, my inclination of my own motion would be to remit to the matter to the Federal Court.  Although you have an arguable case, I see no reason why it should not be left in Western Australia, particularly having regard to the fact that you commenced proceedings there on 6 November and the order nisi is returnable on the 17th of this month.

MR BURMESTER:   That is correct, your Honour.  If I might address that question of remittal?

HIS HONOUR:   It does not arise.  If it was a question of remitter, then the matter would, arguably, have to go to the Federal Court under section 44(2A) rather than the Supreme Court.  The matter being in the Supreme Court, which seems to me would be able to give you all the relief that you seek, then why should this Court take the matter on?

MR BURMESTER:   Your Honour, the reason we started separate proceedings in this Court arose from, initially, a doubt about the jurisdiction of the Western Australian Supreme Court to deal fully with the matter and that is because of section 38(c) of the Judiciary Act.  On one view, this would be a suit involving the Commonwealth and a State or a person being sued on behalf of the State, and we say the Mining Wardens - - -

HIS HONOUR:   But the States Supreme Courts have jurisdiction in respect of such matters.  They hear actions in which the Commonwealth is a party every day of the week.

MR BURMESTER:   I am not sure that is correct, your Honour.  Section 38(c) says that:

Subject to section 44 -

which is the remitter section -

the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters:
.....
(c)  suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State.

Your Honour, it was partly as a result of remarks that Justice Gummow and yourself made in the State Superannuation Board Case which led us to believe that there may be a question about the jurisdiction of the Supreme Court.

HIS HONOUR:   Where is the passage in State Superannuation?

MR BURMESTER:   It is 140 ALR 129, at pages 146 to 147, or if your Honour goes back to page 145, I think, is the start of the discussion. Your Honour will recall in that case there had in fact been an action started in the Western Australian Supreme Court; action was started in the High Court as well. It was then remitted to the Supreme Court. That was, however, a remittal with the consent of the parties. So, your Honour, we would say there is at least an issue there that required us to commence proceedings in this Court.

HIS HONOUR:   Yes.  I must say my own thinking, and it obviously comes through in State Superannuation I suppose, is that the scheme of 38 and 44 was really to either give this Court or the Federal Court jurisdiction in these matters where the Commonwealth is a party unless this Court remits it under 44(1) but - - -

MR BURMESTER:   Section 44(2A) is to the Federal Court or 44(2), it can go to the Federal Court or a court of a State or Territory, so it is not confined to the Federal Court.

HIS HONOUR:   Yes. 

MR BURMESTER:   My friend reminds me, your Honour, we have also, in our application before this Court, included an additional ground in relation to section 52(ii) of the Constitution which is not included in the Supreme Court matters.

HIS HONOUR:   Yes.  Accepting the Supreme Court has not jurisdiction in the matter, why should I not remit it under 44(2)?

MR BURMESTER:   That would certainly be a matter that was open to your Honour.  The reasons I would argue against that is that no party asked for it and the Commonwealth, in particular, would prefer to keep the matter in the High Court.

HIS HONOUR:   I know they would but, I mean, this Court - sooner the notion gets out that this Court is not a trial court, the better.  The whole purpose of 44 was to do away, so far as possible, with the Court’s trial jurisdiction.  There is nothing very special about 109 cases or, for that matter, 52(i) cases, at least in the context of this particular legislation.  You have certainly got an arguable case; some might say a strongly arguable case.

MR BURMESTER:   Yes, your Honour, we would say there are significant constitutional issues here, leaving aside section 109 and

section 52(ii) itself and the Commonwealth immunity issue which, of course, was canvassed before this Court in the Henderson matter argued recently, and many of the same issues would seem to arise here.  They do seem to be matters of significance.  This issue of mining on Defence land is not also a problem confined to Western Australia and it does seem to be an issue that has national significance.  I am aware that there are similar issues arising in other States and that seems another reason for seeking a decision of the High Court at first instance.  I understand that it is not a trial court; on the other hand, we would argue that the issues here do not depend on a trial of facts.  There is no particular factual inquiries that need to be made.

HIS HONOUR:   Very well, I will grant you an order nisi.  I will not remit the matter.

MR BURMESTER:   Thank you, your Honour.  I understand your Honour has been provided with a revised draft.

HIS HONOUR:   There is a draft annexed, yes, and I will sign it later.

MR HAWKINS:   Your Honour, if I may, there is a new form of draft supplied on Thursday.  I have handed a copy to your associate.

HIS HONOUR:   Yes.  I will grant an order nisi.  Do you want an order staying the proceedings before the Mining Magistrate?  Will you discontinue the proceedings?

MR BURMESTER:   We will discontinue the proceedings, your Honour, and the draft order does seek a stay of proceedings before the Mining Wardens, yes.

HIS HONOUR:   I will grant the order nisi and I will grant the stay.  I do not think there is anything else that requires to be done, is there?

MR BURMESTER:   Certificate for counsel, which I think is - - -

HIS HONOUR:   Yes, I certify for the attendance of counsel.  Adjourn the Court.

AT 10.25 AM THE MATTER WAS CONCLUDED