Judamia & Ors v The State of WEstern Australia

[1996] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P14 of 1996

B e t w e e n -

SNOWY JUDAMIA, CROW YOUGARLA, PADDY YARBARLA, BILLY THOMAS and LESLIE ANKIE

Applicants

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 AUGUST 1996, AT 10.32 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friend, DR. S.C. CHURCHES, for the applicants.  (instructed by Dwyer Durack)

MS C.A. WHEELER, QC:   May it please the Court, I appear with my learned friend, MS H.M.V. COGAN, for the respondent.  (instructed by P.A. Panegyres, Crown Solicitor for the State of Western Australia)

McHUGH J:   Ms Wheeler, I think the Court might be assisted if we heard from you first.

MS WHEELER:   I always wonder, when the Court does that, whether I should just concede gracefully and sit down, your Honour, but I hope I can assist the Court in that respect.  If I could step back for a moment into the history of it, the statement of claim in this action, as your Honours will see from the proceedings in the court below, has been amended on a number of occasions and it was sought, in effect, to amend it orally or foreshadow amendments orally in the Full Court, to drop off bits that were seen as coercive or potentially coercive. 

The Full Court held, in essence, that the action, as it was sought to be pleaded, could not be brought because of the Crown Suits Act.  It did not hold, in our submission, that no action in respect of section 70 could be brought by anyone.  It remains open to the applicants to issue fresh proceedings against the Attorney‑General seeking a non‑coercive declaration or, if they really wish to pursue the argument, that a failure to pay money in any given year gives rise to a continuing cause of action extending over the last 90 years, it remains open to them ‑ ‑ ‑

GUMMOW J:   I am sorry, Ms Wheeler.  Am I right in saying that it follows from what you just said that you see no obstruction to a procedure whereby, what you call the non‑coercive declaration was sought against the Attorney‑General.

MS WHEELER:   Against the Attorney‑General.  As we read the reasons of the Full Court, your Honour, the Full Court held, and we do not challenge that, that the common law right to bring an action against the Attorney‑General ‑ ‑ ‑

GUMMOW J:   Or equitable right ‑ ‑ ‑

MS WHEELER:   ‑ ‑ ‑whatever it may be, remains unaffected by section 7(c) of the Crown Suits Act is specifically preserved.  The only question is whether the relief, as it was sought, was in any way coercive and if it can be framed in a way that claims a bare declaration, then we would see that as being open on the Full Court’s reasons.

KIRBY J:   What is the practical consequence of this - the applicants can start again?

MS WHEELER:   Yes.

KIRBY J:   But, there would be some money that might be lost in the event that they ultimately succeed.  Is that the bottom line?

MS WHEELER:   That probably is it, your Honour, that there would be some money that would be lost, but that is a consequence, in our submission, of pleading - we do not mean this in a critical way because the issues are difficult in this case - but a pleading which has been, in a sense, one step behind the argument, and one step behind the principles which the applicants seek to advance, and we say that, really, what is needed is to go back, in the light of all the good ideas they have had since, and to replead; to start again in the light of what has happened in the Full Court and what they seek to advance here.

KIRBY J:   The technical point may be a good one but it is not one which drips with apparent merit.

MS WHEELER:   It is a good one in this action, in our respectful submission, for a number of reasons.

KIRBY J:   But if they went back, would they have any Anshun estoppel problem if they started again?

MS WHEELER:   In relation to the Attorney-General, no, we would not see it at all, your Honour, and in relation to the Crown, it really depends on how they plead and the relief they seek, because one of the things that is said, as we apprehend it, at the moment is that there is a continuing cause of action because there is a continuing failure to appoint members of the Aborigines Protection Board and matters of that kind.  That, again, is not something that has actually been pleaded on the statement of claim as it presently stands, and that was mentioned by his Honour Justice Owen, I think, at first instance and, again, by his Honour the Chief Justice picking up those comments in the Full Court.  So that, again, that would be something which would, as far as we can see, be open to the applicants to plead.

We take the point that that may be seen to be an unduly technical argument, but there are certain difficulties in bringing before this Court, in our submission, an appeal which is, in a sense, different from anything that either arises on the statement of claim or was argued below, and perhaps the most striking example of that is in relation to the fiduciary duty pleading, for example.  If I could take your Honours briefly to that?  It is now asserted in the applicants’ summary of argument - I am sorry, it is not pressed - so that ‑ ‑ ‑

GUMMOW J:   The fiduciary duty claim would be a private right, as it were?

MS WHEELER:   Yes, indeed, yes.  The suggestion in the argument was ‑ ‑ ‑

GUMMOW J:   It is distinct from a matter purely of public law.

MS WHEELER:   Yes.  So that perhaps a fiduciary - I am not quite sure when my learned friend says he is not pressing, whether ‑ ‑ ‑

MR BENNETT:   Not pressing it as a special leave point.

MS WHEELER:   I am not quite sure where that leaves me.  My learned friend advises he does not press the fiduciary duty argument as a special leave point.  Can I, nevertheless, deal with it?  What is asserted is that a fiduciary duty attracts a different commencement date, if there be a commencement date, from the action in relation to the declaration.  Now, not only was that not argued below, but in relation to the whole of the fiduciary duty pleading, as your Honours will know, his Honour Justice Owen apparently would have been prepared to strike out the whole of that pleading on the basis that it was embarrassing.  It is still in the statement of claim in the end because his Honour struck the whole statement of claim out because of the Crown Suits Act.

So if leave were granted in this case, then in relation to that pleading, for example, the Court and the respondents would be in a position of having to deal with the limitation question on a pleading which his Honour has, in our submission, rightly held is simply unintelligible or, alternatively perhaps, the Court would not deal with that at all and then, at the end of the appeal, it would still not be clear whether the applicants could proceed with all of the claim as they pleaded it so far and as they apparently seek to advance it.

So, the difficulty that we see with changing the claim as it goes along, and trying to bring a special leave application at this point, is that that really does not determine all of the issues which arise, or, alternatively, that they are sought to be determined on a pleading which, in our submission, really is not satisfactory.  It is no mere technical pleading point, in our submission, it really is not satisfactory.  It really does not squarely raise the issues that the applicants seek to raise today.  And, of course, in relation to a number of those issues, your Honours will not have the assistance of the courts below because they were simply not invited to deal with those sort of matters.

Even in relation to the Attorney‑General - and I daresay my learned friend will clarify his position with your Honours - but even in relation to the Attorney‑General, before his Honour Mr Justice Owen the applicants asserted that they could seek to join the Attorney‑General and that would cure any problems, but they did not actually do so, and it was almost dealt with as an afterthought in the argument.  We said, “Well, perhaps you could, but you haven’t, and it would not be as easy as it sounds, for a variety of reasons.”

The application for joinder was brought before the Full Court at the commencement of the appeal, and then there was a difficulty apprehended in relation to the way the action was pleaded, and this question of was any relief of a coercive nature sought against the Attorney‑General, and how did the action against the Attorney‑General, and against the State, if it remained, interact, and my learned friend clarified that - - -

KIRBY J:   Presumably the Attorney‑General was on notice of the fact that the application would be made at the outset of the - - -

MS WHEELER:   No, no, the Attorney‑General was on notice in the sense that it was mentioned in the court below, but the first we saw of any formal application was at the commencement of the appeal.  Although it was sought to clarify before the Full Court what the pleadings would look like if the Attorney‑General were joined, of course, we still do not even have a minute of what the statement of claim would look like as against the Attorney‑General, and that gives rise to certainly difficulties, at least for us at least at this stage of the proceedings.  Maybe that could be cured by directions of some kind, but that highlights, in my submission, again the difficulty of having to deal, at this stage - it might well be appropriate for a trial judge to take these sort of issues that change as they go along, these half‑digested ideas, and clarify them and deal with them as if the applicants had pleaded what they, in fact, put in argument.  But it is very unsatisfactory.

KIRBY J:   But this is a very important case.

MS WHEELER:   Yes.

KIRBY J:   It raises very important questions.  It will come, at some stage, in a way that you could not challenge.  You were a manifestation of the Crown.  You have always known what the applicants were trying to say and, in the event that the Court granted special leave, but felt that the technical problems that you present are fatal to this claim, well, presumably some light could be thrown on what is undoubtedly a very important case for Aboriginal and non‑Aboriginal Australians.

MS WHEELER:   Yes.  Could I take issue with two aspects of what your Honour puts there?  One is that it can probably be conceded that this matter will come before this Court in some form at some time, one would have thought.  But, because of its importance, we submit it is very important to ensure it comes before this Court in a form in which there is not going to be any argument.  The parties cannot go away and say, “Well, this aspect was not dealt with, this issue is left hanging in the air,” and so on. 

And, secondly, and more importantly, there has always been attention within the statement of claim and, indeed, within the submissions that are made, between the assertion that what really is sought is purely declaratory relief; that is, just a declaration that section 70 was invalidly repealed.  And your Honours will see that there is still a scheme for the application of moneys pleaded in the statement claim, and some sort of assertion that ultimately what the applicants are seeking is, in fact, the $600 million-odd that they say remains unpaid.  And it is very important, from our point of view, that that be clarified.

KIRBY J:   Is it so important?  Is there not still a convention in this country that the Crown will conform to a declaration as to its legal rights?

MS WHEELER:   Indeed, your Honour, and that is why it is important because, in our submission, from a bare declaration in this case it is very difficult to see what could possibly flow and that is why we have raised in our submissions, albeit it briefly, a few notorious facts; one of which is that the State has expended money on Aboriginal welfare since the date of the alleged repeals, that at times, because of the different policies, that expenditure has been inseparable from welfare expenditure generally so that it is impossible to separate it out, that since 1967 the Commonwealth Government has assumed responsibility for doing a lot of that and, indeed, since 1975, and again it is an argument for another day, there might be an argument that a provision directed specifically to Aboriginal people in these broad terms is invalid.

Now, in the light of all those circumstances it is difficult, with respect, to see that the State could look at a bare declaration and decide what on earth it is supposed to do and our submission would be that without some further guidance in the form preferably of specific orders, it would be impossible for the State to expend any money as a result of the declaration and that is why it is very important to know whether what the applicants seek is the bare moral vindication ‑ ‑ ‑

KIRBY J:   Or it could be that that is the stage at which there would be some clarification.  I can see that one could approach it on the basis that because of these problems the discretion to provide a declaration would not be exercised.  Another approach would be to provide a declaration suitably framed and to leave it to a primary judge to work out the detail of the sorts of considerations that you have just mentioned.

MS WHEELER:   Yes indeed, your Honour, and looking down ‑ ‑ ‑

KIRBY J:   Surely it is not beyond the wit of a court to fashion a declaration which would deal with the primary legal issues and then leave the sorting out of the consequences to further litigation?

MS WHEELER:   Yes, accepting that, your Honour, that still leaves what, to us, is the very important question of what is sought in these proceedings; whether it is a bare declaration or a declaration with consequences to be worked out later because looking not very much further down the track, if what is sought is a bare declaration or, indeed, if what is sought is a declaration with some consequential orders later, then it would be appropriate for the respondent to bring before the Court all the circumstances to which I refer, all the evidentiary difficulties to argue that there ought not to be any declaration as a matter of discretion.

McHUGH J:   Is the relief that is sought, as it stands, that which is set out at page 80 of the appeal book?

MS WHEELER:   Yes, I think it is, your Honour, yes.

McHUGH J:   What is the problem about the declaration in paragraph 2, apart from the - you would concede, I take it, that there is nothing to stop the present applicants from seeking a declaration against the Attorney‑General in terms of paragraph 2?

MS WHEELER:   Nothing to stop them seeking it.  Whether as a matter of discretion it ought to be granted is another question, and that would be something we would want to argue further down the track.  We say that this is an omelette, that you cannot unscramble these eggs, if I may use that sort of expression.  That is what is wrong with it.  Again, that is a little further down the track, but ‑ ‑ ‑

GUMMOW J:   But as a matter of jurisdiction ‑ ‑ ‑

MS WHEELER:   As a matter of jurisdiction, there is no difficulty, but it does affect the way in which the issues are dealt with from here on and it probably affects the way in which the issues are argued before this Court if leave is granted, and that is one of the difficulties we have.

KIRBY J:   Order 6 on page 80 does seem to have a coercive character about it, and order 1 is an odd sort of order as well.

MS WHEELER:   Yes.  As I understand it, my learned friend has always said that order 6 is merely not coercive, but facilitative, that it might come in handy at some stage, but it does seem to suggest ‑ ‑ ‑

KIRBY J:   It is like a scheme to distribute a trust fund in aid of private rights.

MS WHEELER:   Yes.  That would be the way in which we would see it, your Honour, and it seems to have been the way in which the Full Court regarded it.  So that although ‑ ‑ ‑

KIRBY J:   Order 2 and order 3 are simply pure legal questions and you concede, very rightly, that they are important legal questions and that one day they will have to be answered.

MS WHEELER:   Yes, indeed.

KIRBY J:   So they present no problem.  Order 6 is something which this Court might not become involved in, given that it solves the legal questions and then sends it back to the Court of Appeal, the Full Court of Western Australian to make such orders as follow from the declarations.

MS WHEELER:   Indeed.  If I can pick up on what your Honour has just said.  In relation to orders 2 and 3, it may be one would need to see a pleading, but it may be that in an action brought against the Attorney-General seeking just that relief, that these Crown Suits Act questions would not arise and the parties could then simply focus on the legal questions that

arise, that is, as to what did happen in relation to the 1850 Act and as to those questions of discretion that I have already raised.

McHUGH J:   But the applicants assert that the Crown Suits Act has got nothing to do with it and that they are still entitled to maintain this action, notwithstanding it.  Why does not that raise a question for special leave?

MS WHEELER:   It is the way in which it arises, your Honour.  The questions that arise are not special leave questions because, in our submission, they involve principles which are simply not in dispute, except perhaps for the question, the only question that seems potentially to be a special leave question is, does the Crown Suits Act apply or, more properly, is the Crown Suits Act capable of applying to an action for a declaration and, as to that, we submit that the decision appealed from is plainly right.  So that is the position we take in relation to that question, and that is the only one that we would see as being a special leave question in the way the case is pleaded at the moment.

The broader question of whether the stay has invalidly repealed a provision and is somehow required to pay a very large amount of money to Aboriginal people or in trust for Aboriginal people is obviously one of public importance, but we say because of the way in which this matter has come before the Court and, in particular, because of this confusion about exactly what a bare declaration is and exactly what relief is sought, that does not squarely arise in this case and it deserves to be raised squarely in appropriate proceedings. 

Those would be our submissions, your Honour.  I had other submissions, but I think they were peripheral to those issues that your Honours have raised.  May it please the Court.

McHUGH J:   Yes.  Yes, Mr Bennett.

MR BENNETT:   Your Honours, the concession my learned friend has made today is really one which is contrary to the judgments of the Full Court and ‑ ‑ ‑

GUMMOW J:   It really goes to paragraph 2(e) on page 151 of the appeal book in the draft notice of appeal.  In other words, in so far as you have that point there on page 2 of the draft appeal, I do not think she seeks to support the Full Court in so far as that is what the Full Court decided.

MR BENNETT:   Yes.  If that is made clear, that of course goes a long way, but we would wish to submit that we are also entitled to rely on the Crown Suits Act as well as joining the Attorney-General.  The Full Court, of course, refused to allow us to join the Attorney-General largely because of matters concerned with the Crown Suits Act.

McHUGH J:   They said your action is incompetent.

MR BENNETT:   Yes.  They went on to say further, there was the fiduciary duty problem.  The primary reason was the incompetence of the action, and we have that finding against us which, in a sense, needs to be reversed before we can go any further.  There is also the problem of the last order, of order 6, which we would seek under the Crown Suits Act.  Looking at it realistically, obviously there are problems with going back to 1905 in monetary terms, but so far as the future is concerned, and the settling of a scheme and so on, we want to be able to submit that the Crown Suits Act does not bar us and that the court below has made three errors in relation to the Crown Suits Act.

The first is saying that it applies at all to proceedings for a declaration and consequential relief of this type.  The second is saying that this is not a continuing cause of action which is excluded from the notice provisions.

GUMMOW J:   Say that again, Mr Bennett.  What was the second one?

MR BENNETT:   If it is a cause of action we say it is a continuing cause of action.

GUMMOW J:   You say it is a continuing, yes.

MR BENNETT: Because all we say is, this section of the Constitution is still there. We are not complaining of some wrong done in 1905, we are saying there was something invalid done in 1905 but the consequence is there is a section there.

GUMMOW J:   Yes.

MR BENNETT: We seek whatever flows from that section. The third question is, the, what has been called the grundnorm question, which was treated rather unkindly by his Honour the Chief Justice, which involves this question: you have a Constitution which is the starting point of legislation in the State which authorises the making of legislation. That Constitution has a manner and form provision in it. That is disregarded. Then it is said that the consequence of that has to be ignored because a time limit has passed within which one can sue. Legislation laying down procedural requirements removes that. We rely on Antill Ranger and matters of that sort to say one simply cannot do that.

So, between those three - between the grundnorm argument; the “a declaration is not a cause of action” argument, and the argument based on continuity - we say we can get around the Crown Suits Act and have order 6.  We also, of course, say we wish to sue the Attorney‑General.  We foreshadowed that at the trial and it did not go very far.  I accept the criticism my learned friend makes about that.  We raised it squarely towards the end of the appeal with a formal document, and that was refused.  There is no real reason not to.  Without wishing to trivialise the issue, it is, in a sense, the nearest procedural formality - whether the defendant is the State of Western Australia, or the State of Western Australia and the Attorney‑General.  I know it may have legal significance.  It may make the difference between being entitled to sue and not being entitled to sue, but from the point of view of being regarded as a significant amendment to which rules about amendment and prejudice can possibly have any application, in our respectful submission, it is really an amendment that the moment is was mentioned should have been just made instantly and the case should have been got on with without worrying about it any further.

GUMMOW J:   Suppose an action were brought by a resident of another State against Western Australia, it would be federal jurisdiction, would it not?  What would the Crown Suits Act then have to say?

MR BENNETT:   That is the same sort of problem, your Honour.

GUMMOW J:   Yes.

MR BENNETT:   The problem with this case is one can get ‑ ‑ ‑

GUMMOW J:   In other words, it is by no means inevitable that the Aboriginal plaintiffs at relevant times will all be residents of Western Australia.

MR BENNETT:   Yes, that is so, your Honour, and we will bear that in mind.

GUMMOW J:   So there is a federal element in all of this as well, can be.  I am just thinking about this grundnorm.

MR BENNETT: There may be a federal element, too, because of, I think it is section 106 of the Commonwealth Constitution which picks up the ‑ ‑ ‑

GUMMOW J:   Yes.

MR BENNETT:   That is an argument which has been referred to a couple of times recently in this Court.  For all those reasons, we would submit that while we welcome what my learned friend says about the other matters, really the concession made at this stage, in relation to joining the Attorney‑General in fresh proceedings, does not solve the problem.  The appropriate order, ultimately, that we would seek from this Court is simply that the appeal be allowed and the matter proceed, perhaps with liberty to amend the statement of claim in appropriate ways, either before or after - before by indication or after argument in this Court.

GUMMOW J:   But you would be seeking from us some decision to the effect that the Full Court erred in the exercise of a discretion, if that is what it was, to refuse joinder of the Attorney.

MR BENNETT:   It would not be necessary for me to do that, your Honour, because that discretion was based on matters we say are wrong in law.  So, we would attack it in that way.

GUMMOW J:   Yes.

MR BENNETT:   And we would seek from this Court the order simply joining the Attorney‑General and sending the matter back otherwise amended.  May it please the Court.

McHUGH J:   Yes, Ms Wheeler.

MS WHEELER:   Just a couple of matters, the first of which I should have made clear, just in case there be any difficulty.  The concession in relation to the Attorney‑General is in relation to the Crown Suits Act.  I think his Honour Justice Rowland in the Full Court mentioned that there was a potential problem with the Limitation Act section 47A, and we have not addressed that in our submissions, and do not make any concession in respect of it.

GUMMOW J:   So, just let me get it clear.  What is the concession then?

MS WHEELER:   It is in terms of the - - -

GUMMOW J:   In terms of page 151, is that conceded?

MS WHEELER:   That is conceded, that section 7(c) of the Crown Suits Act left untouched the common law right to sue the Attorney‑General, yes.  Whether that was affected by other legislation is a different question, your Honour.

McHUGH J:   Well, it is really an equitable right, is it not?

GUMMOW J:   It is an equitable right.

MS WHEELER:   Yes.  That does not mean the Limitation Act does not affect it, but that is an argument for another day.  Or, at least, that provision of the Limitation Act.

GUMMOW J:   Indeed so.

MS WHEELER:   In relation to this question of the Crown and the Attorney‑General and whether that is merest a procedural matter, could I submit that that goes back to the other issue that I raised with your Honours; that it is very important to the respondent, because of the rule, as we apprehend it, that one cannot seek coercive relief against the Attorney‑General in an action for a declaration at common law.  And if what is really sought is some order in relation to the money, if there is an entitlement to the money, or any of it, that needs to be against the Crown, and that is why that is very important.

We do not see what the problem is for the future in relation to the Crown Suits Act.  If my learned friend is correct in his argument that he can plead a continuing failure to appoint members, and a failure in each year to appropriate money, as we read the reasons of the Full Court, there has been no determination against him in relation to an action which merely seeks to go back six years, for example, or to go into the future seeking money, but the six years is the long stop provision in the Crown Suits Act.  Again, we say that has not been sought, so that has not been determined.

The grundnorm question, in our submission, and as it was argued below, was plainly unarguable, and that is why the Full Court gave it short shrift, and we would not, with respect, see it as a special leave point.  The constitutional question is whether a limitation act which bars any action in relation to breach of a constitutional provision may, itself, be in breach of the constitutional provision  - the Antill Ranger point.  The Full Court held that it could, and there is no dispute, as we apprehend it, about the principle, the dispute is only about its application in this particular case - - -

McHUGH J:   But that is an important point in itself, is it not?

MS WHEELER:   Well, it may be important, but having regard to the terms of the Crown Suits Act, in our submission, again the decision appealed from is plainly right; it is an Act of general limitation, not directed at the Constitution in any way, with a perfectly adequate time limitation of one year, or six years with leave. It is difficult to see how that could possibly offend Antill Ranger.  Those are the matters, if it please your Honours.

McHUGH J:   Yes, thank you.    Yes, there will be a grant of leave in this case, but, Mr Bennett, the grant is subject to the possibility that if the argument develops so as to indicate procedural problems that make the case an inappropriate vehicle, your grant of special leave could be revoked.

MR BENNETT:   If the Court pleases.

McHUGH J:   Mr Bennett and Ms Wheeler, this case will have to be heard in Canberra.

MR BENNETT:   If your Honour pleases.

AT 11.04 AM THE MATTER WAS CONCLUDED