Harper v Minister for Sea Fisheries & Ors; Harper v Minister for Sea Fisheries

[1989] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Office of the- Registry

Melbourne No Ml0 of 1988

B e t w e e n -

GEOFFREY ALAN HARPER

Plaintiff

and

MINISTER FOR SEA FISHERIES,

DIRECTOR OF SEA FISHERIES AND

THE STATE OF TASMANIA

Defendants

Office of the Registry

Melbourne No M3 of 1989

B e t w e e n -

GEOFFREY ALAN HARPER

Plaintiff

and

MINISTER FOR SEA FISHERIES,

DIRECTOR OF SEA FISHERIES AND

THE STATE OF TASMANIA

Defendants

Harper

Directions hearing

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 22 MARCH 1989, AT 10.07 AM

Copyright in the High Court of Australia

MlTl/1/RB 1 22/3/89

MR S. P. CHARLES, QC: Your Honour, the appearances are as before.

Your Honour will recall this matter coming on before
the Full High Court in Canberra a fortnight ago.

The position, Your Honour, is that the parties have

reached not complete but substantial agreement about

the form of a case stated. If Your Honour would be

interested, I can hand up a document of some 10 pages

which indicates roughly the form of what will be put

before the Court in due course.

My friend, the Solicitor-General for Tasmania, and I and our juniors have been discussing the form

of this document before coming to Court, Your Honour,

and there are some short matters which are, I think,

for practical purposes confined to page 2, and two

paragraphs on page 2, about which there is still minor

disagreement and on which we need to seek further

instructions from our respective clients. Would it

be of assistance to hand this document up, Your Honour?

HIS HONOUR:	Yes.	You have a copy, do you?
MR CHARLES:	Yes, I do.	We have also, Your Honour, discussed

the document and a copy has been sent to the

Solicitor-General for the Connnonwealth who has made a

number of suggestions for attaching various schedules

in the form of plans, showing what are the coastal

waters in relation to Tasmania and the adjacent waters,

and that will be done and also the arrangements will

be attached. We do not expect there to be any

difficulty about the suggestions that will eminate

from the Connnonwealth, Your Honour. That will not be

a matter of contention.

The matter of still minor difficulty between us

is in relation to paragraph 5 on page 2 and the terms

of paragraps (a) and (b). There are minor difficulties

between us which are really in this context: my friend

will say that abalone cannot move across sand; our

instructions are that they can move across sand. I

cannot believe that anything will turn on this, any

HIS HONOUR: Will you be able to reach agreement about that?	high constitutional argument, but we are anxious to get the matter as precise as we can by agreement.
MR CHARLES:	Your Honour, if we cannot, I should have thought

that we could reach agreement that involves something

like this, that the plaintiff contends the following;

the defendant contends the following. Now, I doubt

very much, Your Honour, whether the difference is

going to be seen to have any constitutional significance

at all.

HIS HONOUR:	Yes.
Harper

MlTl/2/RB 2 22/3/89

MR GIARLES: But the differences are as minor as that, Your Honour.

HIS HONOUR:	Whose version is this that I have here?
MR CHARLES:	The version that Your Honour has is the last

prepared for the State of Tasmania and the main

difference now existing is in relation to

paragraphs S(a) and (b). There are small other

differences with which I need not trouble the Court

and there will be some deletions from it. Apart

from putting it forward as an indication of what will

ultimately be put before the Full Court, it has no

other significance.

Your Honour, the section 78B notices have been

served. We told the Court when the matter was last

before the Full Court that a draft notice had been

prepared and which had been circulated. We have now

reduced that to a final form and my friends have

copies. Can I hand up to the Court the 78B notice.

HIS HONOUR:	They have been served on all - - -
MR CHARLES:	No, Your Honour, only upon my friends for Tasmania

at this stage. The rest will be served today.

HIS HONOUR: Including the Northern Territory?

MR CHARLES:  Oh indeed, Your Honour, yes. Your Honour, subject

to any orders that the Court might think appropriate

or necessary for the further resolution of the matter,

we would ask - Your Honour may remember that there are

two actions and at this stage a defence has been

served in the second action and we would ask now, by

consent, for an order that the two actions be heard

together.

HIS HONOUR:  Before we come to that, there are two other matters,

Mr Charles, are there not? The first of them is	·
whether there has been an exchange of notices of contention so that the contentions to be made on the

hearing, at least of the first matter, are fully known

to each of the parties.

MR CHARLES:  Indeed, Your Honour. The hearing dates, I believe,

were set for 6 and 7 June, Tuesday and Wednesday, I

think.

HIS HONOUR:	You may be right, I do not know.
MR CHARLES:	What we - and this is not a matter that I had

raised with my friend - might we suggest, Your Honour, subject to my friends consenting or otherwise, is that contentions be served not later than 14 days before

the date fixed for hearing?

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HIS HONOUR:  I had thought that it would be possible to, at

least in the first action, deal with that matter

here and now. Why is there difficulty about that?

J:1R CHARLES:  Your Honour, we certainly have not reduced our

contentions, at least, to final form in the light

of the contentions that have been served on us.	We
had not come to Court expecting that we would be
asked to provide contentions today.	We have got our

78B notice but we still have some work to do on

reducing our argument to final form.

HIS HONOUR:  I thought that was made plain. What the

Chief Justice said on the hearing of the matter was

that:

it should come before a single Justice .....

in the week after next with a view to his

reviewing the giving of the notices under

the JUDICIARY ACT -

that is done -

the issues that arise on the basis that

contentions have been fully exchanged -

Now, apparently that has not happened. Why not?

MR CHARLES:	I am sorry, Your Honour, I had not understood that that order required us to have our contentions in
final form and exchanged by today.

HIS HONOUR: Well, you cannot know what"the issues that arise

on the basis that the contentions have been fully

exchanged" until they have been exchanged, can you?

MR CHARLES:  I accept that, Your Honour. I am sorry; I simply

had not appreciated that that was contemplated by

the Court.

HIS HONOUR:  I am reading from page 293 of the transcript.

MR CHARLES:  We will certainly be in a position to have our

contentions finished very shortly, Your Honour, but

as I say, I am sorry, I had not appreciated that that

was contemplated by the Court's order.

HIS HONOUR:	And there is a further matter which arises which I should have expected could have been adverted to
today and that is whether the contentions which are
first matter, involved any of the matters which were argued in what are known as the PORT MACDONNELL cases.
going to be argued on the hearing, at least of the off shore settlement was questioned.
MR CHARLES:	One of those matters, as we follow it, certainly

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will be because Your Honour will see from page 8 of

the document, in paragraph 13, that - - -

HIS HONOUR:	Which document?
MR CHARLES:	The draft case stated.
HIS HONOUR:	Yes.

MR CHARLES: That we do wish to ccntend that the COASTAL WATERS

(STATE POWERS) ACT is beyond legislative competence.

Now, to that extent, there is an overlap with the

PORT MACDONNELL case.

HIS HONOUR:  Does that involve all of the legislative powers

which were argued in- - -

MR CHARLES:  I am sorry, I am not able to answer that. Our

primary argument is going to be that the plaintiff is unable to exact a royalty absent title; that title is something which is only to be found by an examination

of the STATE TITLE ACT; that firstly that Act is

beyond power, but even if it is within power, it is

not a consequence of the Act that title, in matters entitlement to demand a royalty from it.

such as abalone or the fish in the sea, passes to the

Now, those matters will follow from the first part

of paragraph 13.

HIS HONOUR:	It is the STATE TITLES ACT you are going to- - -
MR CHARLES:	Yes.
HIS HONOUR:	I think you may have said STATE POWERS ACT.
MR CHARLES:	If there is a further argument made against us that in some way the STATE POWERS ACT entitles a royalty to
be exacted, presumably from some concept of
sovereignty, then we would want to attack the STATE
POWERS ACT.

HIS HONOUR: And you would do so on the basis there is no power

under section Sl(xxxviii) which was of course the

means adopted or under the external affairs power to

enact either piece of legislation?

MR CHARLES:	Yes.
HIS HONOUR:	Yes.
MR CHARLES:	Your Honour, I repeat my apology.  We had thought

that the first stage of what we were involved in was

the settling of the case stated between us and that

following that we would then prepare our contentions

in final form and have then served well before the

4ate contemplated for hearing.

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HIS HONOUR: Well, I had better adjourn this hearing. I will

hear from Mr Bale first of all, but to enable me to

assure myself that there is a case stated, that is

that the questions of fact have been settled, and that

notices of contention have been exchanged and that
there are no contentions which are going to be raised

for the first time at the hearing on either side.

MR CHARLES:  We, Your Honour, were going to ask that some such

order be made as that an agreed case stated be filed

by 10 April - that is Monday fortnight, I think -

covering both matters, and we expect there to be

agreement between the parties by that time.

HIS HONOUR: Apart from the fact that the legislation is in a

different form, is there anything else involved in

the second case that is not involved in the first?

MR CHARLES:  I do not believe so, Your Honour, not for purposes

of constitutional argument. There may be a separate

issue between the parties as to whether or not our

payment has been made under protest but I doubt very
much if that is a matter which needs to trouble the

Court; it is a matter which, if any question were

raised, we might have to argue about it some other

time before some other court.	But I have not raised
that with my learned friend.

HIS HONOUR:  Thank you, Mr Charles. Mr Bale.

MR BALE:	May it please Your Honour, I am in a position to confirm
that I have on behalf of the Attorney-General for notices in both HARPER NO 1 and HARPER NO 2 in which
the relevant constitutional issues arising out of
COASTAL WATERS (STATE POWERS) ACT and COASTAL WATERS
(STATE TITLE) ACT are raised.  So that is confirmed
and I understand, as my learned friend has indicated,
that action will be taken today to see that the other
Attorneys are in fact served.

So far as the contentions for the defendants

are concerned, they were delivered when we were in
Canberra and they are unchanged.	I do not contemplate,

on anything that I have seen to date, that they would

be likely to change.

HIS HONOUR: That means, of course, that the issues which arise

in these two cases are quite distinct from the issues

which were argued in what I might call the excise

cases which preceded these two, that is the PHILIP

MORRIS and COASTACE cases.	So the issues are quite
distinct from those?

MR BALE: Certainly, Your Honour, as was indicated there, we

are not relying on DENNIS HOTELS or DICKENSON or

any other extension of that principle in relation to

MlTl/6/RB	22/3/89
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this case. The issues are as raised in the outline

of argument which, I think, each of Your Honours was

given.

HIS HONOUR:  And do you agree that those contentions will involve -

I suppose it is not a matter for you agreeing - but it does appear, does it not, that those contentions

will involve an attack upon the COASTAL WATERS (STATE

TITLES) ACT and, perhaps as a consequence, the

COASTAL WATERS (STATE POWERS) ACT?

MR BALE:	Certainly the defendants rely for part of their argument on the validity of both those pieces of
legislation.  Not alone, but we certainly rely in
part on that, so in so far as - - -
HIS HONOUR:	To that extent the same ground will be covered as

was covered - similar ground will be covered as was

covered in the PORT MACDONNELL case?

MR BALE: Certainly so far as the STATE POWERS ACT is concerned,

Your Honour, yes. In so far as that challenge is

pursued, the same ground must be covered. The STATE

TITLES ACT, of course, was not canvassed in PORT MACDONNELL. It may well be· thought that it has the same legislative base and to that extent the ground was covered.

HIS HONOUR: But there may be additional considerations.

MR BALE: Yes, there may be. Your Honour, I believe that there

will be room for an order, and that it will in due

course become appropriate to order, that the two

actions be heard together. If the constitutional

issues are resolved against the plaintiff, then I think

my learned friend and I would probably agree that no

other issues in the case could remain to be litigated.
If the constitutional issues were resolved in favour
of the plaintiff, then there might be some other

non-constitutional matters which remain to be resolved

as to the validity of contracts and so on.	But really,
that will stand or fall by the resolution of the

constitutional issues and thus the only matters that are being stated in this case are the constitutional

ones.

HIS HONOUR:  But that may, even though the case stated is

determined, leave unresolved some issues which will

have to be determined- - -

MR BALE:  Yes, it may, Your Honour. I think therefore it will

be appropriate to order, in due course, that the cases

be heard together but before that order is made, I

would respectfully submit that it is appropriate that

the terms of the case stated be resolved and that

really, as Your Honour has indicated, is best left

until the competing contentions - the exchange of

MlTl/7/RB	7	22/3/89
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the competing contentions has been completed - so
that counsel can be sure that all the relevant facts

to ensure the resolution of those issues are
incorporated in the case stated and the legal issues

are properly identified there.

In discussions, as my learned friend has

indicated, we believe that you now have before you the second version - the first version was sent up here on Friday of last week, the second version I
have delivered this morning following discussions

yesterday - of the case stated. I would envisage that

within a fortnight we should be in a position to have

a third, and hopefully a final version, and I am

confident that a sufficient level of agreement will

be reached between, s to ensure that there are

sufficient facts in :hat to enable the constitutional

issues to be properly determined.

HIS HONOUR:  Surely some form can be devised because it is

unthinkable that the constitutional issue should

depend upon whether an abalone moves one or two or
20 metres a day on a rock and can move or cannot

move on sand.

MR BALE:	I am sure it does not, and my own assessment is that
we have, indeed, already agreed the necessary
constitutional facts, with one or two minor things
which each of us have to check, following this
morning's discussions.  But I am confident that
agreement has been reached already on the relevant
constitutional facts.  So I see no difficulty, in
practice, in us coming to you, perhaps on the date
suggested by my learned frien~ were that available.
HIS HONOUR:	What was that date?
MR BALE:	It was suggested that Monday, 10 April - which is just over two weeks ahead - I do not know if Your Honour is in Melbourne at that time.

HIS HONOUR:	Yes, I am.
MR BALE:	Or at any time during that week that better suited Your Honour.

HIS HONOUR:  Monday, 10 April is satisfactory. Say 11 o'clock

in the morning.

MR BALE: Yes, certainly, Your Honour. And I would anticipate

that prior discussion will have resolved the

contentions and resolved the form of the case stated.

The consequence, I imagine, of stating a case at this

time would be that the proceedings, brief as they

have been to date, would necessarily be abandoned and

we would embark afresh upon the case stated.

MlTl/8/RB	8	22/3/89
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Your Honour will remember that so far as the demurrer

is concerned, my learned friend had concluded his

argument, that it would seem to be a more satisfactory

course that when the case is stated, assume that it

is, that he should address argument outlining his

contentions on the case stated.

HIS HONOUR: Well, it would seem the demurrer will go into

abeyance. What course is to be followed as a result

of that would be a matter for the Court hearing the

case stated. I would not presume to give any

directions with regard to that.

MR BALE:	No, thank you. We accept that, Your Honour.
HIS HONOUR:	I had hoped that we would be able to settle

everything today. It is apparent that we cannot,

but when the matter resumes - that is what goes for

a summons for directions, I think it would be - when

these proceedings resume on 10 April I would anticipate

that the parties - I will not make any order, I cannot

order you to agree - but I would anticipate the

parties will produce an agreed case and will produce

notice of contentions which have been exchanged and

will be able to assure me that those are the contentions

which are to be argued,and no others,when the matter

comes on for hearing before the Full Court.

MR BALE:  Yes, I would anticipate we should be able to do that,
Your Honour.

HIS HONOUR:  Yes, thank you, Mr Bale. Mr Charles, do you agree

with that?

MR CHARLES:  Yes, Your Honour. I do not expect any difficulty

with that.

HIS HONOUR:  I will adjourn these proceedings to 11 am on

10 April 1989. In the meantime, you may give thought

to the other matters which I raised -

probably there will be no advance on the situation

which you have adumbrated - but in particular whether

the matters involved in the PORT MACDONNELL case will

also be involved,or some of them, in the argument of these two cases. And of course on the resumption of these proceedings, if it is appropriate to do so, I

will make an order that these two matters be heard

together.

MR CHARLES: If the Court pleases.

MR BALE: If the Court pleases.

AT 10.29 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 10 APRIL 1989

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