Kartinyeri & Anor v Commonwealth of Australia

[1998] HCATrans 50

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A29 of 1997

B e t w e e n -

DOREEN KARTINYERI and NEVILLE GOLLAN

Plaintiffs

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

For Directions

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 18 FEBRUARY 1998, AT 9.44 AM

Copyright in the High Court of Australia

MR J.J. SPIGELMAN, QC:   If the Court pleases, I appear with  MR S.W. TILMOUTH, QC  for the plaintiffs. (instructed by Camatta Lempens Pty Ltd)

MR G. GRIFFITH, QC:   If your Honour pleases, I appear with MS M.A. PERRY for the Commonwealth.  (instructed by the Australian Government Solicitor)

MR D.F. JACKSON, QC:   Your Honour, I appear with my learned friend, MR N. PERRAM for Kebaro Pty Ltd and Mr and Mrs Chapman, who were given leave intervene in the proceedings, your Honour.  (instructed by Lynch & Meyer)

HIS HONOUR:   I understand it is likely that some of the Attorneys for the States will intervene but I do not know the details yet.

MR SPIGELMAN:   A number have already done so in the principal proceedings.

HIS HONOUR:   Yes, but I understand in these proceedings it is possible.  Mr Spigelman, before you commence, I should say this, that after Justice Callinan heard submissions from counsel on 4 February 1998, he called upon me to tell me of the issues that had been raised.  He informed me that he had not decided whether or not he should sit on Kartinyeri & Anor v The Commonwealth of Australia which was listed for the following day.  I advised the Judge that there was no necessity for a decision before the following day and that he should think about the question overnight.  Although the Judge would have welcomed consultation with other members of the Court, the view was taken by me and by the other Justices that, at least at first instance, the decision was one for the Judge alone.  The notice of motion in these proceedings carries the title of the proceeding which was argued before all seven Justices, but Justice Callinan does not propose to sit on the return of the notice of motion.

MR SPIGELMAN:   If the Court pleases.  Your Honour, the matter is before the Court for directions.  I apprehend the only directions necessary are for the filing of submissions.  I hope that the second affidavit has caught up with your Honour.  There was a first affidavit which - - -

HIS HONOUR:   There is a second affidavit, a portion of which I think I have but I do not think that the annexures need delay you, if I understand correctly.

MR SPIGELMAN:   If your Honour pleases.  I was not proposing to take your Honour to it, I just wanted to make sure it was before the Court.  We

believe that the only directions that are necessary are for submissions.  We would propose to have our submissions on by Friday of this week.  As I understand it, there is a possibility of the matter being set down on Monday, 2 March.

HIS HONOUR:   That is correct.

MR SPIGELMAN:   So, we propose to have our submissions on by Friday of this week, say, 4 pm, and what we would ask is that the Commonwealth submissions and any interveners' submissions be filed preferable by Wednesday, 4 pm, but, if not, Thursday, 4 pm, giving us at least one clear day other than a weekend to look at them and preferably two.

HIS HONOUR:   We will deal first with the question of the making of the timetable for submissions. 

MR SPIGELMAN:   If your Honour pleases.

HIS HONOUR:   Dr Griffith, what do you say about that?

MR GRIFFITH:   Your Honour, we really need to have the advantage of the submissions to be filed to see how jurisdiction and other issues are put by the plaintiffs.  This is, to us, an original application and, your Honour, we had written to them and we appreciate that they indicate that they can give written submissions by this Friday.  Your Honour, we do really feel that we need as much time as may be and we were contemplating suggesting midday the following Friday as an appropriate day.  This is a tight timetable and we feel my learned friend has to commit some of his weekend to this matter.  But there are issues, your Honour, involved of the Commonwealth obtaining instructions once it has seen the case - it does take some time - and then to prepare submissions that reflect those instructions.  Your Honour, it being such an original matter, we do feel we need until midday Friday.  We may, your Honour, be able to informally give an outline earlier than that on the basis that the final outline would be midday Friday.

HIS HONOUR:   Yes.  Mr Jackson.

MR JACKSON:   Your Honour, our position is we would be quite content with the proposal put forward by Mr Spigelman.  It may well be that we have nothing to say on the matter at all and I do not think that, in any event, our submissions would say anything about the substance of the matter.

HIS HONOUR:   Yes.  Your would be concerned about the question of jurisdiction?

MR JACKSON:   Perhaps, your Honour, and perhaps questions about how the matter might be dealt with.  The case as a whole, I mean by that.

HIS HONOUR:   By that, do you mean that you may be concerned about the relief that is sought?

MR JACKSON:   Yes, your Honour.

HIS HONOUR:   Or about the procedure which the Court should follow?

MR JACKSON:   Both those matters, your Honour.  Your Honour, it may be that we having nothing to say in the end but not having seen the ultimate submissions on this issue, we would simply like to reserve our position.

HIS HONOUR:   Yes, thank you, Mr Jackson.  Dr Griffith, I think the situation though is this, that it will be necessary for members of the Court themselves to give some consideration to the arguments in advance of the date of hearing and perhaps to look at some of the authorities that may be cited.  I think Thursday at 4 pm will have to be the deadline.

MR GRIFFITH:   Yes, your Honour.  I do not want to set the Court homework, your Honour.  It is more my learned friend I do not mind about, for the weekend, but we will comply with that.

HIS HONOUR:   Thank you. 

MR SPIGELMAN:   May I say I will endeavour to get our submissions to him before 4 pm if that is possible.

HIS HONOUR:   Yes.  I should indicate - and perhaps this could be transmitted to the Solicitors-General for the States and Territories who are proposing to intervene - that I would regard next Thursday at 4 pm as the deadline in relation to their own written submissions and that copies of those should be served on the parties here represented and on any others whom they know to be intervening at that stage.

There are, Mr Spigelman, I think, two major issues, of course, that will arise.  One is the question of jurisdiction, associated with which may be the question of procedure, and the second would be whether there are any, and what criteria, for the exercise of that jurisdiction.  I take it that the notice of motion is intended to be an application to the Court in its original jurisdiction?

MR SPIGELMAN:   Yes, your Honour, in two respects.  This may assist my learned friend.  We rely on two aspects in the original jurisdiction of the Court.  Firstly, its inherent jurisdiction to ensure that proceedings before it are conducted in accordance with the rules of natural justice, including the bias rule.  Secondly, we rely on the implication of Chapter III that the traditional judicial process, including by that the rules of natural justice, must be obeyed by Federal Courts.  Now, they are alternative submissions.  They are the two aspects of jurisdiction.

As to the matter of how that jurisdiction ought be exercised, there appear to us to be two broad streams of authority.  One, if I might say, is the Warren v Coombes kind of approach that the Full Court if in as good a position - and this is not an appeal but the principle is the same - to apply the basic test as his Honour.  The alternative would be something - an analogy drawn from interlocutory judgments or exercise of discretion and that we have to point to some error of law or something of that character.  They seem to be the two kinds of tests applicable by way of analogy in this case.

HIS HONOUR:   Although that sounds rather like an appeal.

MR SPIGELMAN:   It does, your Honour, but the question is how should the Court exercise the jurisdiction in circumstances which have not occurred before.  It may be that the formulation of those analogies is not as precise as that but they seem to be that choice is available or something like them.  We will submit for the former, namely, the Warren v Coombes-type of approach or, alternatively, that there is error displayed if the latter is the correct approach.

Now, it may be that in the submissions against us some other approach is identified but that is as we see it and that is, if I might anticipate, the broad structure of how I see our submissions.

HIS HONOUR:   Do you propose to have regard to the American authorities on the subject?

MR SPIGELMAN:   Your Honour, may I say if I can, by Friday, I have to say.

HIS HONOUR:   Let me offer you some assistance to start with.

MR SPIGELMAN:   If your Honour pleases.

HIS HONOUR:   That is an article on Disqualification of Judges and Justices in the Federal Courts, (1973) 86 Harv L Rev 736.

MR SPIGELMAN:   We did have a look at that and we thought the test was different.

HIS HONOUR:   It is a matter entirely for you, Mr Spigelman.  And two cases which I think are both referred to in that article and that is Jewel Ridge Coal Corporation v Local 6167 (1944) 325 US 897, and a memorandum by Justice Rehnquist, as he then was, in Laird v Tattum (1972) 408 US 828.

MR SPIGELMAN:   Yes, as your Honour pleases.

HIS HONOUR:   Is there any question of an exercise by the Court of its jurisdiction under section 75(v)?

MR SPIGELMAN:   No, your Honour.

HIS HONOUR:   So, we need not be concerned about cases such as Re Brennan; Ex parte Muldowney or Re Jarman and the like?

MR SPIGELMAN:   No.  No, we are not seeking an order under 75(v).

HIS HONOUR:   Will your written submissions be divided so that the question of jurisdiction will be distinct from the question of the exercise of the jurisdiction?

MR SPIGELMAN:   Yes, your Honour, but perhaps in paragraphs rather than in sections.

HIS HONOUR:   Very well.   There are a couple of other matters I want to deal with.  Dr Griffith, have you any material which ought to be, as it were, communicated to the applicant for the purpose of consideration in the preparation of submissions?

MR GRIFFITH:   I have no instructions of any material, your Honour.  If my learned friend wants to ask me - - -

HIS HONOUR:   It just seems to me that in a case of this kind it will be a case in which the Court will be looking for as much assistance as can be derived.  I do not know what attitude you will be taking but if you are simply appearing, as it were, as an amicus, it would be a friendly gesture to ‑ ‑ ‑

MR GRIFFITH:   Yes, your Honour.  I expect the instructions will be to assist.

HIS HONOUR:   Yes.

MR GRIFFITH:   But we have to see what the case to work out how we can assist, your Honour.  It is an original ground of jurisdiction and very interesting, your Honour, but it is just a question of what contribution we may make to assist the Court in considering that.

HIS HONOUR:   Yes, thank you very much.  Mr Spigelman, the material that will be before the Full Court will consist of what?

MR SPIGELMAN:   There are two affidavits.  A number of documents were handed to his Honour.  There is a transcript of proceedings before his Honour, the judgment, a number of documents that were handed to his Honour and also a number of documents referring to matters or documents that are referred to in the course of the transcript even though they were not then before his Honour.  There are two affidavits.  If your Honour went to the first, without going to the detail, your Honour will see that the first annexure is the original letter, as it were, raising the matter with the Court.  Then there are our written submissions.  We did not put my friend's written submissions but obviously there will be no difficulty with those.  Then there is the transcript which is FC3; his Honour's reasons which are FC4.  There is an opinion which is what originally sparked the application which is FC5. 

Then one comes to the second affidavit.  I do not think your Honour wishes to go to the text but, obviously, I will take your Honour to any part of them.  His Honour, handed, through the Registrar, a copy of some draft terms of reference.  The original submissions were based only on the opinion but prior to the argument before his Honour, his Honour made available to us some draft terms of reference which he had drafted for a Mr McLachlan.

HIS HONOUR:   Let me understand this correctly.  These draft terms of reference are terms of reference which the Judge gave to the Registrar for provision to the parties, is that right?

MR SPIGELMAN:   Yes, that is so, and reference was made to them during the course of the submission.

HIS HONOUR:   As having been prepared by the Judge.

MR SPIGELMAN:   As having been prepared by his Honour, in the circumstances identified by his Honour, first, in advance to us through the Registrar but also on the record which appears in the transcript.

HIS HONOUR:   In the course of his reasons for decision?

MR SPIGELMAN:   No, in the course of the transcript.

HIS HONOUR:   I see.   I should say that the transcript which was first annexed is perhaps not as clear as the Court's transcript.  It might be desirable to have the Court's transcript as the appropriate document.

MR SPIGELMAN:   If your Honour pleases.  Yes, this is one obtained, I think, on the day on the Internet.  Yes, we will obtain that and use that in future.  Going back to the second affidavit:  FC6 is the terms of reference.  FC7 was handed to his Honour and it was a motion in the Parliament moved by Mr McLachlan for the disallowance of the determination under the Heritage Protection Act.  A question was raised as to the applicability of the Parliamentary Privileges Act to that.  In the course of that I said we could get the press clipping and there is such a press clipping which is FC7A.  Now, that document was not before his Honour -  FC7 was - but reference was made to a document of that character before his Honour.

HIS HONOUR:   Is that intended simply to be, as it were, a fall back for FC7?

MR SPIGELMAN:   Yes.

HIS HONOUR:   I see.

MR SPIGELMAN:   That is its primary function but it has its own function.  When one is talking about appearances, et cetera, publication is of itself some significance.  The Royal Commission Report, I must admit, I do not remember whether - I offered his Honour this.  I am not sure whether I actually handed it up in the sense that - the conversation went on.  It is on the transcript that I said, "Here is a document" of this character, I just do not remember whether it was actually handed to his Honour but it is referred to in the transcript as being there.  FC9 is perhaps the only document that was not before his Honour and it maybe that this is the one area that Dr Griffith may wish to elaborate on in the sense that we have found - what happened was during the course of the hearing, his Honour - and we have given a page reference there - indicated that he had advised Mr McLachlan during the course of a certain incident.  Now, there was no material before his Honour other than what was in his Honour's own mind about that incident.  That incident involved the contents of certain envelopes that had been misdelivered to Mr McLachlan.

So, there was nothing before his Honour but his Honour indicated he had a role in that incident and what we wanted to put before the Court was some material about that incident.  These are, I think, only two press

clippings.  There are probably more.  If Dr Griffith wishes, he may not believe that these press clippings give a full treatment of it in the haste that they have been prepared.  We may very well agree with that.  But that is perhaps the only document that was not before his Honour either expressly or inferentially.

HIS HONOUR:   How long then would you expect the argument to take, the oral argument

MR SPIGELMAN:   I would have thought that it would be completed in a day.  That would, I think, give me 2 hours or thereabouts, leaving equivalent time for the Commonwealth and a bit of time for the State interveners.  I notice Queensland did not intervene in the previous proceedings but this is a matter where they may wish to intervene and all States would have something to say about the principles involved.

HIS HONOUR:   Thank you.  Dr Griffith, is there any material that you are likely to want to place before the Court?

MR GRIFFITH:   Presently, no, your Honour.

HIS HONOUR:   You do not know of any, I suppose, that the interveners are likely to - State or Territory interveners?

MR GRIFFITH:   I would doubt that they would anything, your Honour.

HIS HONOUR:   Do you have anything you wish to place before the Court?

MR JACKSON:   I do not expect so, your Honour.

MR GRIFFITH:   Your Honour, there is one minor matter:  if our submissions are to be filed by 4 pm Thursday, may we have until Thursday to file a list of authorities, otherwise they are to be due, I think, at the end of Wednesday or first thing Thursday morning.

HIS HONOUR:   Yes, certainly.

MR GRIFFITH:   We will get a draft in earlier if we can, your Honour, but just to close off at the same time.

HIS HONOUR:   By all means.  Now, time for oral argument, Dr Griffith?

MR GRIFFITH:   Your Honour, the difficulty is because we have not yet seen the case to answer but I would have thought, your Honour, it is a day's case, if my learned friend says he needs two hours, I do not foresee there would be time difficulties.  We will be full in our written submissions, your Honour, subject to what instructions I have and that will make it clear the manner in which the Commonwealth is able to assist the Court.

HIS HONOUR:   Yes, thank you.  Do you wish to say anything about the times, at all?

MR JACKSON:   No, your Honour.  Our submissions, if we wish to make any, will be about 10 minutes I should think.

HIS HONOUR:   Mr Spigelman, I think an hour and three-quarters - of course, the interveners are likely to be in support of the Commonwealth.  I had overlooked that.  That would be two hours in your case; say an hour and three-quarters for the Commonwealth; half an hour for the interveners and a quarter of an hour for reply.  I think that events it up.

MR SPIGELMAN:   If the Court pleases.

MR GRIFFITH:   Perhaps I could indicate, your Honour, that at the moment I do not have instructions as to what position the Commonwealth is taking other than I would expect them to say we assist so that it might be slightly different from the usual taking issue as happened in the principal matter itself.

HIS HONOUR:   Nonetheless, we will set that as a preliminary timetable and if there should be some desire to change it would be helpful if the parties would let my associate know before 2 March.

MR GRIFFITH:   Could it be, your Honour, before the hearing commences?

HIS HONOUR:   Yes, before the hearing commences.

MR GRIFFITH:   Because we might not get together before the morning, your Honour.

HIS HONOUR:   Quite.  So long as I know that if you want to appear, say, at 9.15 that morning, that is fine, just so long as we have the arrangements physically in place.

MR GRIFFITH:   Your Honour, I really do not think there will be a time problem but if there looks like there might be we will make sure your Honour is apprised of that view.

HIS HONOUR:   Thank you, Dr Griffith.  Thank you, gentlemen.  The matter will be listed for 10.15 on 2 March.

AT 10.06 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 2 MARCH 1998