Kruger & Ors v Cwealth of Aust

[1995] HCATrans 374

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M21 of 1995

B e t w e e n -

ALEC KRUGER

First Plaintiff

HILDA MUIR

Second  Plaintiff

CONNIE COLE

Third Plaintiff

PETER HANSEN

Fourth Plaintiff

KIM HILL

Fifth Plaintiff

ROSIE NAPANGARDI McCLARY

Sixth Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Darwin  No D5 of 1995

B e t w e e n -

GEORGE ERNEST BRAY

First Plaintiff

JANET ZITA WALLACE

Second Plaintiff

MARJORIE FOSTER

Third Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions Hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 DECEMBER 1995, AT 9.19 AM

(Continued from 4/10/95)

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear for the plaintiffs in each of the matters.   (instructed by the Katherine Regional Aboriginal Aid Service)

MR G. GRIFFITH, QC, Solicitor‑General for the Commonwealth:  If your Honour pleases, I appear with my learned friend, MS M.A. PERRY and MR C.R.STAKER   for the defendants.   (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Griffith.

MR GRIFFITH:   I was about to say for the Oxbridge team, your Honour.  I never appeared with only doctorates from Cambridge and Oxford before.  I do not know whether it is something to be encouraged, but that is the team today.

HIS HONOUR:   Congratulations.  Mr Merkel?

MR MERKEL:   Your Honour, since the last directions, extensive written submissions have been filed and have resulted in a number of amendments which have been by consent to the pleadings and the parties have taken the liberty of proposing draft minutes of orders to add extra questions based on the amendments which the parties have discussed at some length between them and, subject to what your Honour may say, were of the view that would raise issues of law that are capable of being dealt with on the pleadings.  We would propose that those questions be raised, if your Honour is disposed to do so.

We have considered fairly carefully, your Honour, the issues that would require resolution in a way that might ultimately resolve the litigation and the questions have been framed with that in mind.  Each party has a slightly different view on the questions of reasonableness of delay and we have put our facts as we believe they to be.  The Commonwealth have put a slightly different version of the facts and we have asked questions on each version, believing that the Court can answer them on these pleadings.  Otherwise, your Honour, the matter would be ready to proceed.
HIS HONOUR:   Can we just approach this in stages?  First of all, the amendments to the statements of claim, defences and replies, they are by consent, is that so, Mr Solicitor?

MR GRIFFITH:   Yes, your Honour.

HIS HONOUR:   You need an order for an extension of time and leave to make the amendments, is that right?

MR MERKEL:   I think, your Honour, that has all been signed on the basis that the rules permit the amendments by consent, and no orders or directions are required.

HIS HONOUR:   So they are made then?

MR MERKEL:   They are made, your Honour.

HIS HONOUR:   The next question is the form of the questions to be reserved. I am not sure that I have all those documents here. Mr Merkel, I have a suggested amendment to question 1 myself - which, perhaps if I give counsel a copy of it, will be the easiest way of indicating it - and I would suggest we look at that one first for this reason: I have perused - I will not say I have mastered - the extensive submissions that have been made and it seems to me that one thing that ought to be avoided is any general roving inquiry into the scope of the Constitution as distinct from the issues arising in this case.

So that question 1 as I looked at it with new eyes seemed to me to lack that precision which directs its relevance to the prayer for relief which, after all, seeks the declarations of invalidity.  Now, the words that have been changed I think are clear enough.  Instead of asking the question, “Is the powers”, et cetera, “restricted?”, it is “so restricted as to invalidate”, et cetera.  The paragraphs numbers differ from one statement of claim to the other.  Would you like another copy, Mr Merkel?

MR MERKEL:   If I could, your Honour.  Thank you, your Honour.  For our part we have no difficulty with that question, your Honour.

HIS HONOUR:   Mr Solicitor, would you like some time to consider it.

MR GRIFFITH:   Your Honour, we have always been anxious to have it so restricted.  We regard it as implicit but we are indebted to your Honour in sheeting that home.

HIS HONOUR:   Is the restriction appropriate?  Is that the specific question of relief to which the questions of limited power go, Mr Merkel?

MR MERKEL:   I believe it is, your Honour.

HIS HONOUR:   Yes, very well.  We will make that question 1 in place of the one that is there at the moment.  Now the new questions are 5 and 6, I think, in relation to the Kruger matter and they both relate to the limitation of time.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   What is the precise distinction between the two questions?

MR MERKEL:   Your Honour, 5 is based upon an implied constitutional limitation to bring action within a reasonable time and 6 is based upon a general law limitation of laches.

HIS HONOUR:   Of course.

MR MERKEL:   And the questions asked are asked separately, based upon the two versions of the facts which each party would wish to proceed upon.  I should say there is a very subtle difference between (a) and (b) in the sense that the Commonwealth would wish to leave open that the plaintiffs were aware that they were Aboriginal persons under the ordinance and were detained under the ordinance, whilst the plaintiffs would wish to go forward as saying that they were aware that they were Aboriginal persons who were taken to and lived in the institutions, but not knowing the legal quality of what occurred to them.

HIS HONOUR:   Yes.

MR MERKEL:   Because each side would like to reserve their position, we have asked the question on each side’s version of the facts, separately, although ultimately as a matter of law it may not matter which version is accepted, but if there is any difference it was important for the resolution of the litigation if possible to get a separate answer to each view of the facts and that would explain 5(a) and (b) and 6(a) and (b), your Honour.

HIS HONOUR:   Yes.

MR MERKEL:   I should say that in co-operating to bring the questions forward, no point has been taken as to how arguable the question of an implied constitutional limitation or laches is, but the Commonwealth have put submissions that make it an arguable point and we thought it appropriate to have it raised for decision, your Honour.

HIS HONOUR:   Yes.

MR MERKEL:   I should also say we are in the process, if your Honour was disposed to ask those questions or reserve those questions ‑ we are fairly advanced in responding submissions to the Commonwealth submissions which we would be filing fairly shortly, probably within seven days, so that there is no delay occurred by raising those questions.

HIS HONOUR:   You are in agreement with those questions?

MR GRIFFITH:   Yes, we are, your Honour.

HIS HONOUR:   Very well.  The questions reserved will be amended as to paragraph 1 in accordance with the draft which has been handed to counsel and, in relation to proposed questions 5 and 6, in accordance with the draft of the proposed questions submitted by counsel.

Now, the next question is the time that this argument will take.  There have been extensive submissions I see prepared.  How long would you anticipate, Mr Merkel, that you would need in oral argument to develop the propositions that are already extensively stated in the written submissions?

MR MERKEL:   I think the view we have formed, your Honour, is that the case would, with intervention, be of the order of three to four days.

HIS HONOUR:   Is there any purpose to be served in the specifying of times within which counsel are to present their oral submissions, conformably to that timetable, but within that time?  The reason why I raise it for consideration is threefold:  first, it seems to me that in a case of this kind it is desirable to have a precise enunciation of propositions, both in written material and in oral material; secondly, references to authority, or precedent, need to be precise.  It would not be of much assistance to say, “We rely upon a principle of equality, see Leeth”.  So that precise pages and parts of pages, perhaps, need to be attended to.  And the third consideration seems to me that we would not be advantaged by extensive citations of material that are not cogently relevant to the propositions being advanced, when the propositions are as diverse and substantial as there are in these written submissions. 

So, for that reason, in other words, to concentrate the mind most wonderfully, I will raise for your consideration the question of the time that should be specified, understanding, of course, that if judicial intervention occurs, as it might well do, there is always an opportunity for an application for extension.

MR MERKEL:   What your Honour has said has been transcribed and recorded and probably cemented in the minds of those responsible for the argument.  What I would propose, your Honour, is that the parties, who have acted in a fairly co‑operative way to date, be able to try and reach some agreement as to time and if there is any problem it could possibly be raised informally with your Honour through the Registry, but at this stage it may not be helpful to actually stipulate what the times might be.  I would expect that co‑operation could produce that result.

HIS HONOUR:   Would you think four days is a reasonable time?

MR GRIFFITH:   Your Honour, I would hope so.  Even with the interventions - we have seen interventions which have been filed and they would seem to be complementary rather than each principal cases on their own.  The difficulty with this case, your Honour, is that one could analyse and say there are, in effect, five or six separate constitutional actions in their own right.  We had a similar thing in industrial relations cases and we did seem to cope in the four‑day period with the complications there but, your Honour, this is a useful suggestion.  Of course, the commonest experience is usually it has between a third and a half of the time to address the Court that plaintiffs do when pleading against it in constitutional issues but we are sort of used to that.

Possibly, if we express it in a loose way such as if the plaintiff had a target of one day, your Honour, the Commonwealth would certainly expect to meet a target of that sort, and we can anticipate matters.  For example, just looking at the issue of the statutory limitation period, it is complicated, your Honour, as the filed written submissions show, but it is a sort of issue that probably could be addressed, if necessary, by a few further pages of written submissions if we could get them to the Court rather than taking them, if they were a discrete action on their own, as a one‑day case in themselves.  I think your Honours remarks do concentrate the mind and possibly if we could express it if that was acceptable, your Honour, on the basis that the plaintiff would have a target of a day or so.

HIS HONOUR:   Mr Solicitor, it seems to me that the estimate of four days is within a bounds of reason, and if there has been co-operation between the parties, as there obviously has been to date, what I think would be the most convenient course is for me to indicate that four days will be allocated.  The time will be divided equally between the plaintiff and the defendant and interveners - that is, I assume all interveners will be on the side of the defendant.  If that is so, then the notion would be that the plaintiff shall have as much time as the defendant and interveners together in both aggregating the argument in‑chief and reply.  In other words, that might end up with a day for the plaintiff to start with, a day for the defendant to start with, a day for the interveners to follow and a day for the reply.  That would be one possibility.  I would have that was too gross a division, myself, but it is a matter for the parties.  I would have thought that perhaps an hour each for the interveners would be sufficient in the light of the arguments that have been presented in the defendant’s notes of argument and from what I have seen of the interveners’ notes thus far.  Is there any purpose in my leaving it to the parties to divide up four days in that way?

MR GRIFFITH:   Your Honour, the Commonwealth will get anxious if there is a principle established that it is gets lumped in with interveners for the purpose of allocation of times because there may be a disparity of interest and the Commonwealth regards itself as the substantive defendant.

BRENNAN CJ:   Yes.

MR GRIFFITH:   Having said that, your Honour, it is our custom to take substantially less than plaintiffs and also, I think your Honour can be assured that if we had four days allocated that we would tailor our submissions to be finished comfortably certainly within that time.  Your Honour’s suggestion of an hour for an intervener may well be appropriate but perhaps a State that could see its interest affected would regard that as inappropriate.  Your Honour, we would not want it thought that a State that took that view could, as it were, take our time as a defendant because it stated its interest.

HIS HONOUR:   The question is the ensuring that the plaintiff has an adequate opportunity of replying so that if, for example, there were division of argument between the defendant and inteveners that the plaintiff was not thereby disadvantaged.

MR GRIFFITH:   Yes.  Your Honours, a reply is a reply.  It is the case, your Honour, that the parties have so far as we can see held nothing back in their written submissions.  Certainly we have not and we do not see the plaintiffs having done that, so that, your Honour, we are quite happy to accept the case that in all circumstances the plaintiff will have at least the last half day for reply as being a position that is agreed and, your Honour, this being an original approach, it might be useful to leave it a little bit loose first up and see whether that does work satisfactorily with the parties fully aware of your Honour’s views.

HIS HONOUR:   I would like to have some guidelines, if nothing more firm, in relation to the times agreed by the parties if possible.  If not possible, then I would give the indication myself.

MR GRIFFITH:   Yes.  Your Honour, perhaps we could discuss it, but certainly the Commonwealth would be quite happy to accept the plaintiff should have at least a day and an hour if it wished to have that for its case in‑chief and we would be happy ‑ ‑ ‑

HIS HONOUR:   Let me give an indication.  That would be six hours for the plaintiff, five and a half for the defendant, an hour for the inteveners and the reply not less than two hours nor more than the sum of the time taken by the defendant and inteveners.

MR GRIFFITH:   Your Honour, I think we could put that in the form of quadratic equation.  It seems perfectly acceptable to us, your Honour, except the Commonwealth would reserve its right to take less.

HIS HONOUR:   Yes, be it so.  There will not be any objection on the Court’s part to that proposition.

MR GRIFFITH:   The other thing we would say, your Honour, a two‑hour reply is a pretty long reply, but if the time is there ‑ ‑ ‑

HIS HONOUR:   It is a very long reply, but I am thinking it may be that it may be in the reply that the questions of constitutional time limits are addressed.

MR GRIFFITH:   Yes, your Honour.  There is a limit to what be said about that but, yes.

HIS HONOUR:   I do not know.

MR GRIFFITH:   Of course, your Honour, practitioners there will not do what in other jurisdictions is known as “doing a Barwick”, so we are quite happy to deal with it on that basis.

HIS HONOUR:   Let me give that as an indication and let me state, however, that four days will be the maximum time that will be allocated to the case and if the parties, including the inteveners, wish to allocate the times differently from what I have suggested, then I would suggest a note be given to the Registry beforehand of the agreement reached.

MR GRIFFITH:   Could I perhaps make an indication, your Honour, that if it was convenient to the Court, we felt there were discrete issues which we wished to deal with in our submissions but felt that perhaps a two or three‑page note would do it.  We would adopt that course to shorten our oral argument if that was convenient to the Court.

HIS HONOUR:   Yes, although for ease of management, having regard to the volume of the submissions already made, it might be of assistance if any series of three pages should be bound together.

MR GRIFFITH:   Of course, your Honour; they would come in proper form.  We do ours in green nowadays so that they can be identified by our colours.

HIS HONOUR:   Is there any purpose in listing the matter for mention before the date of hearing again?  Do you see any necessity for it?

MR GRIFFITH:   We do not, your Honour.

MR MERKEL:   Nor do we, your Honour.  Can I just indicate, in respect of times, what your Honour has proposed sounds acceptable to us, subject to only one reservation.  It seemed to us that the time should be split equally between those supporting us - which would probably be just us - and those opposing the case.  It may be we would wish to take a little more in opening and less in closing, but we accept otherwise the principles that your Honour has put forward.

HIS HONOUR:   You can discuss that with the other parties.  The case will be listed for the second week of the February sittings and, if there is no agreement with respect to the time that is to be taken, then that matter can be mentioned before me in the first week of the February sittings.

MR MERKEL:   If your Honour pleases.  I should indicate to your Honour that I think one of the reasons why February initially was selected is because of some difficulties I had.  Those difficulties have changed, but the parties have nevertheless been proceeding on the possibility that that week could be available.

HIS HONOUR:   Yes, it has been allocated and we are hopeful that that will be a suitable week.  We will adjourn now.

AT 9.41 AM THE MATTER WAS ADJOURNED