Edwards & Ors v Santos Limited & Ors

[2010] HCATrans 213

[2010] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S153 of 2010

B e t w e e n -

NOELENE MARGARET EDWARDS AND CLANCY McKELLAR AND IONA DAWN SMITH AND ERNEST (HOPE) EBSWORTH AND ROSEMARY (ROSE) ANNE WILSON AND MARGARET ANNE COLLINS AND SHARLEEN LOUISE KNIGHT AND ARCHIE EBSWORTH

Plaintiffs

and

SANTOS LIMITED (ACN 007 550 923)

First Defendant

STATE OF QUEENSLAND

Second Defendant

DELHI PETROLEUM PTY LIMITED (ACN 007 854 686)

Third Defendant

THE FEDERAL COURT OF AUSTRALIA AND THE JUDGES THEREOF

Fourth Defendants

Application for an order to show cause

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 18 AUGUST 2010, AT 9.45 AM

Copyright in the High Court of Australia

__________________

MR J.A. McCARTHY, QC:   May it please, your Honour, I appear with my learned friend, MR J.F. KILDEA, for the plaintiffs.  (instructed by Eddy Neumann Lawyers)

MR S.B. LLOYD, SC:   May it please, your Honour, I appear for the first and third defendants.  (instructed by Blake Dawson Lawyers)

MR P.J. FLANAGAN, SC:   May it please the Court, I appear with MR G.J.D. DEL VILLAR for the second defendant.  (instructed by Crown Solicitor (Qld))

HIS HONOUR:   Before we begin, the fourth defendants have filed an appearance indicating that they submit to any order this Court may make, except as to costs. I think, Mr McCarthy, before asking you anything that arises, I would like to say a few things for the special attention of the defendants. Section 31A of the Federal Court of Australia Act 1976 (Cth) is in some ways controversial in its application. The second matter is this. I appreciate that, to date, the plaintiffs have not challenged the correctness of The Lardil Peoples v State of Queensland.  It would have been pointless for them to do so in view of the fact that it bound the Federal Court, but that immunity from challenge may not necessarily hold for long.

Another matter is this.  The dispute does seem to concern rather complex questions concerning the operation of the Native Title Act. The only reason this application has been brought is because of section 33(4B)(a) of the Federal Court of Australia Act 1976 (Cth). That provision, if it matters, may be of questionable constitutional validity and in any event it is certainly capable of working considerable unfairness because whatever fair operation it might have does not seem to extend to a case of this character.

Another matter is this.  The first and third defendants’ written submissions deny that there was any jurisdictional error.  That is a proposition which would have to be assessed in the light of Kirk v Industrial Court of New South Wales, which was a decision after Justice Logan’s decision, but which does not seem to have been dealt with in the Full Federal Court.

My preliminary impression, which is not a final one, of course, is simply this, that if a single Judge were to dismiss this application it would be open to the plaintiffs to apply for leave to appeal from two Judges of the Court and if those two Judges granted that leave, the matter would then have to be decided by a Full Court.  It seems more economical for the matter to be referred into the Full Court today.  Do you have any problems with that course?

MR LLOYD:   Well, your Honour, we do say there is no merit, but I understand what your Honour says.

HIS HONOUR:   Yes, and in what I have been saying I am not denying the force of your submissions and I am not necessarily challenging the correctness of the reasoning in the courts below.  I am just really saying that the questions are complex and normally there are two rights of appeal in this country.  It does not seem unreasonable in a sense that the plaintiffs should seek to move through the mandamus/certiorari route when they have been denied the second appeal route. 

MR LLOYD:   We do not think it is unreasonable for them to attempt to do that.  We do say that there is no merit in the underlying case.

HIS HONOUR:   Mr Flanagan.

MR FLANAGAN:   The only difficulty we have with your Honour’s proposition is twofold.

HIS HONOUR:   Yes.

MR FLANAGAN:   There is nothing in the application to show cause before your Honour today that seeks to challenge the constitutional validity of section 33(4B)(a) of the Federal Court ‑ ‑ ‑

HIS HONOUR:   Can I interrupt there?

MR FLANAGAN:   Yes.

HIS HONOUR:   Of course, it would be rather immaterial if they did so.  If there was to be a challenge of that type made, they would have to have applied for special leave to appeal and then fought it out on that particular battlefield.  I am just pointing to it as a sort of rather unsatisfactory circumstance that may have been force to this course.

MR FLANAGAN:   Quite, but the difficulty we have is that on the papers before your Honour presently there is no constitutional challenge to that.  More importantly, both before his Honour Justice Logan at first instance and the Full Federal Court, no challenge was made as to the correctness of the decision of the Full Federal Court in Lardil.

HIS HONOUR:   Yes.

MR FLANAGAN:   Rather, it was sought to be distinguished on two bases, both of which were rejected.  There is nothing before your Honour that would indicate, by way of submission, nor by way of motion, that the applicants in the present case seek to challenge the correctness of Lardil.

HIS HONOUR:   That is true, but of course, it would not have availed them to have challenged it in front of Justice Logan.  He did not have power to overrule it.

MR FLANAGAN:   Quite, but they ‑ ‑ ‑

HIS HONOUR:   My other feeling is this.  If the matter goes to the Full Court it will not be a matter for the parties whether the correctness of Lardil is an issue.

MR FLANAGAN:   Exactly.

HIS HONOUR:   Not necessary.

MR FLANAGAN:   I thought I should point those two matters out to your Honour rather than simply agree in total, but we can understand perfectly why your Honour would suggest the course.

HIS HONOUR:   Thank you, Mr Flanagan.  In the circumstances I do not think it is necessary to give any reasons.  Your application, Mr McCarthy, asks for an extension of time so far as necessary.  That is to accommodate the need to deal with Justice Logan’s orders which were made outside the time periods.  There is no other purpose to it than that?

MR McCARTHY:   No, but they would become – I am not sure if they still have utility, your Honour.

HIS HONOUR:   Do the defendants oppose an extension?

MR LLOYD:   No, your Honour.

HIS HONOUR:   All right.  I order:

1.That so far as necessary the times specified in Part 25, rules 25.06.1 and 25.07.2, for filing the application for an order to show cause, be extended to 21 June 2010.

2.That the application to show cause filed on 21 June 2010 be referred to the Full Court.

There is a practice direction which will guide the parties on what steps to take from now on.  The parties will now collaborate in putting together an appropriately discriminating set of papers for the consideration of the Full Court.

Thank you, gentlemen.

AT 9.52 AM THE MATTER WAS ADJOURNED