Mabo & Ors v The State of Queensland

No judgment structure available for this case.

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl2 of 1982
B e t w e e n -
EDDIE MABO, CELUIA MAPO SALLEE,
SAM PASSI, DAVID PASSI and
JAMES RICE (who bring this
action on their own behalf
and on behalf of the members
of their respective family
groups)

Plaintiffs

and
THE STATE OF QUEENSLAND and
THE COMMONWEALTH OF AUSTRALIA

Defendants

Directions hearing

Mabo ( 6)

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAYt 17 FEBRUARY 1988, AT 2.18 PM

Copyright in the High Court of Australia

ClTl/1/SH 1 17/2/88

HIS HONOUR: Mr Castan.

MR A.R. CASTAN, QC: May it please Your Honour, I appear
in the matter as before with my learned friends,
MRS B. HOCKING and MR B. KEON-COHEN for the

pla1nt1ffs. (instructed by McIntyre & Co)

MR G.L. DAVIES, QC: May it please Your Honour, I appear with
my learned friend, MRS M. WHITE, for the first
defendant. (instructed by the Crown Solicitor
for Queensland)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:
I appear with MRS. GAEGLER, for the second
defendant. (instructed by the Australian Government
Solicitor.

HIS HONOUR: Mr Bennett.

MR D.M.J. BENNETT, QC: May it please Your Honour, I seek
leave to intervene for the purposes only of the
mention at this stage with my learned friend,
MR D. BARRETT, for the Attorney-General of the
Northern Territory. (instructed by the Crown Solicitor
for the Northern Territory.)

HIS HONOUR: What is the object of intervention this afternoon,
Mr Bennett?

MR BENNETT: Well, Your Honour, merely for the purpose of seeking
to ensure that the issues are defined in such a way by
what goes in the appeal book that it is clear,
one way or the other, whether we need to seek to
intervene at the hearing.

HIS HONOUR: Yes, thank you. Mr Castan.

MR CASTAN: Your Honour, this matter has been brought on
again before you having last been before
Your Honour on 3 April 1987 because there has

been some disagreement between parties as to
which documents should be included in the demurrer
book as determined, or as settled, by the Registrar.
Briefly, there was a suggestion as to the inclusion
of the pleadings and particulars which was forwarded
to the Registrar in preparation for the hearing
of the demurrer which is set down for 15 March

of this year. Those papers were sent up as
the suggested list of documents being the pleadings

and particulars. They were sent up towards
the end of last year and in due course the Registrar
indicated that there had been an indication from
counsel, or from the solicitors for the State
of Queensland, that they objected to the inclusion
of - I am not sure what the current position is -
but certainly all of the particulars and, perhaps,
some or all of the statement of claim as well.

C3Tl/2/AC 2 17/2/88
Mabo(6)

HIS HONOUR: Well, Mr Castan, I have a book which is
entitled "Pleadings to be incorporated in
demmurrer book" and it runs from 1 to 8 - - -

MR CASTAN: Yes, Your Honour.

HIS HONOUR: - - - and it contains documents 1 to 7,
document 8 of itself consists of four books
which I also have.
(Continued on page 4)

CJTl/3/AC	3	17/2/88
Mabo(6)

HIS HONOUR: I take it they are all the documents - - -

MR CASTAN: That is what we sent.
HIS HONOUR: - - - that the plaintiff seeks to have included
in the demurrer book.

MR CASTAN: Yes, Your Honour. We sent those up as the complete
set of pleadings in the action and suggested that
they should be included and there has been a
disagreement as to that and that is, as I understand
it, why we are here although I understand my learned
friend, the Solicitor-General, has another matter
that he might seek to raise. But, in substance,
as we understand it, that is why we are here and
the position that we take is perhaps summarized
in the way we put it to Your Honour last time and
I think it is the way that was reflected in
what we thought was the understanding of the parties.
It appears at page 25 of the transcript. I see~
to go to that to indicate why it is that we - I
have a copy available to hand to Your Honour.

HIS HONOUR: I think there is one here, thank you.

MR CASTAN:
At page 25 at the top of the page. There had
been some debate about whether the matters that
were sought to be raised were properly formulated
or adequately formulated in a way that ensured
that there was no attempt to have the Court decide
facts that were merely claims rather than determined

facts. I think that was the concern of the State
of Queensland and at the top of page 25 I indicated:
Yes, and I think it is only a matter of

formulation. We want to raise precisely that.
We want to say "For the ten -

and I think that should read "these" -

"For these ten reasons the Act is not effective
to do what your defence says it does, namely,
provide an absolute defence to that which
we claimed we had".
Now that is putting it in as summarized a form as

we om, what we understood the purpose and effect

of the demurrer was. For the ten reasons in the
demurrer, the Act - that is the 1985 Act - is not
effective to do what the defence in the pleadings
says it does do, namely, provide an absolute defence
to that which the plaintiffs claimed they had.

C3T2/l/MG 4 17/2/88
Mabo(6)

MR CASTAN (continuing): Expressed in that way, that is as

we see what the issues are in the demurrer. For
that purpose it seemed to us that one has to have
that which we claimed we had available to the Court,
that which is the defence to the clai~ and the
relevant demurrer which sets out the grounds on
which it is said that the Act which is pleaded
has a complete bar to the claims made does not operate

as a bar. I could go on into the issues in some
considerable detail but I do not - - -

HIS HONOUR:	I do not want you to do that I am going to look to Mr Davies in a moment to perhaps see whether it is possible to isolate what the area of
contention is but there is a sort of ambiguity
in what you have just put to me, I think, when
you speak of the claims or "what we claimed we had". Is that not set out in the statement of claim?

MR CASTAN: It certainly is set out in the statement of claim,

Your Honour, and what has happened in this case
back in 1984 is that at the request of the other
parties and, in particular, the State of Queensland,
what had been sought to be a set of draft facts
or possible agreed facts we were required to
incorporate into the statement of claim and that
is how come you get the four volumes because they
had been prepared for a different purpose but by
an order of His Honour the Chief Justice
Sir Harry Gibbs in November, I think it was, 1984,
that was all to be incorporated and we were to
go away and amend and that is why you get, in the
statement of claim, all those detailed cross
references and particulars.
I do not know whether Your Honour has had

the opportunity to go to the pleadings?

HIS HONOUR:

Yes, I have had a look but I have not tried

to marry the references with the particular sources
but I can see the way in which the statement of

claim draws on the four volumes.

MR CASTAN:

Yes, that was an amendment, that was done in

the course of running, that is not the way it
was drafted originally. It was done because there
was an order sought and ultimately agreed
to be made and made by His Honour
the former Chief Justice saying, "Well, if you
want to set it out, you tell us precisely what
is your claim." It was being said, "Well, you
know, this is all expressed with insufficient

precision. You tell us precisely how you formulate
the claim. What are these rights that you claim
you have got?"

CJTJ/1/ND	5	17/1/88
Mabo(6)

HIS HONOUR: But, are you suggesting that if the four volumes
that are described as constituting document 8 were
excluded from the demurrer book, that in some way
or other, assuming the statement of claim remained in its entirety for the purposes of a hearing, that it would not be possible to discern what the plaintiff's
claim was?

MR CASTAN: It may be that in the course of some of the arguments
the Court may well get to a point where it needs to see
what is in some or all of those documents and I can
give Your Honour an illustration of how that might

happen. Among the matters claimed are rights which,
it is said, have been recognized and one of the issues
to be raised here is whether or not the State of
Queensland can effectively in 1985 retrospectively
back to 1879 purport, in effect, to extinguish or declare non-existent, rights which are claimed to
have been the subject of ongoing specific recognition
by purchases from local inhabitants paying money for
land by compulsory resumption, a series of dealings
which are in the nature of recognition.
Now, in this area, as His Honour Mr Justice Black.burn

said in the GOVE case, one of the matters one looks to
in characterizing the kind of rights that are the
subject of the claim here is governmental conduct of various kinds both at the executive level as well as
legislative conduct. If that be the case and part of
the argument certainly will be that retrospectivity
cannot be part of the extinguishing process in a case
like this, then one needs to see what is the kind of
recognition that has taken place to see whether or not
the Queensland legislature in 1985 has the power to
retrospectively undo that which the Queensland
Government by its executive and legislative acts in
meantime has, so to speak, created or given rise to.

HIS HONOUR:

But that seems to be coming peribusly close to saying that you go to the four volumes for evidence
in support of the claims that were made in the
statement of claim.

MR CASTAN: No, we do not say that, Your Honour. We say that
we will be submitting that this is a case in which,
among the arguments as to why retrospectivity cannot
work in the case of an extinguishment of rights, acts
of recognition are part of the reason why.
(Continued on page 7)

C3T4/l/SH 6 17/2/88
Mabo(6)

MR CASTAN (continuing):

All we say in relation to the four

volumes is that the Court itself cannot be, so
to speak, pre-empted from seeing the kind of case

that it is. You do not have to go to evidence
and it will not be regarded as evidence and,
obviously, some of those are in conflict and all
one can do is say, "This is the claim that is
made, it is a claim made on the basis, in part,
of acts of recognition.

HIS HONOUR:

That is the problem, is not it? This is the claim that is made,"based on'!

I mean I understand

the first part, this is the claim that is made which,
presumably, is the claim as pleaded.

MR CASTAN:	Yes, Your Honour.
HIS HONOUR:	Once you move to the notion of "based on",have

you not gone beyond the pleading to the evidence
that supports the plea?

MR CASTAN:

Well, the reason we have sought to say one

needs to go to that is simply that, as we see it,
the Court cannot be, so to speak, prevented or
pre-empted from referring to it. It may well be
that the kinds of recognition that are involved
in the claim in this case are sufficiently revealed by the pleadings without going to particulars. It may well be that some or all of Their Honours would say, "Well, what kind of a recognition would amount to sufficient to perhaps preclude retrospectivity,
or power of retrospectivity in the legislature?"
We cannot pre-empt that and it is a matter of what view the courts ~ake.

HIS HONOUR:

Well, that tends to point up, perhaps, that it

is a rather unsatisfactory proceedings taking place
this afternoon because whatever view I might take
of the matter it may emerge during the course of
the hearing of the demurrer that one or more Justices

feel disposed to look at some of the material.

MR CASTAN:

Well, the position we have taken is that we

have put up all the pleadings and the associated

particulars for precisely that reason. We simply
do not seek to pre-empt anything that is raised
and we accept that there will be very diverse
points of view being submitted and, perhaps,
one can contemplate in the course of argument
diverse views emanating from the Bench on issues
such as this.

HIS HONOUR:

Well, then, I wonder what we are all doing

here this afternoon.

MR CASTAN:

Well, we are only here, Your Honour, because it

was thought the resolution of what should go into
the demurrer book, the formal book itself, might be
best disposed of by a Judge of the Court, perhaps.

C3T5/l/MB	7	17/2/88
Mabo(6)

HIS HONOUR:

But clearly I cannot pre-empt the Full Court or the

members of the court from calling for material
that is thought to be appropriate, particularly
if it emerges in the course of the hearing that the

material clearly is appropriate? So if I gave
directions this afternoon that the demurrer book
was not to include those four volumes, I suppose
the practical course is that you arrive on the
hearing of the demurrer armed with copies of the
books in case anybody calls for them?

MR CASTAN:

I think we would do that on any view, Your Honour,

because one could well contemplate the possibility
that in the course of debate that may occur. It
may not occur at all, of course.

HIS HONOUR: Well, then this afternoon might be a fairly

expensive exercise in futility? I suppose I can
simply say, I am not going to give any directions
in regard to those four volumes, let us see what
happens when the matter comes before the Court. But,
again I want to avoid a situation, if I can, in
which the opening hours of the Full Court hearing
are taken up with the sort of debate that is taking
place now? Probably if it is to take place it is
more economical to take place before a single
Justice this afternoon?

MR CASTAN:

Yes, I do not think it would involve many

hours if that occurred, it would occur in the course
of one or other of the particular grounds and
looking at the pleading it might be necessary to

see what is the scope of the claim made. What is
the full - - -

HIS HONOUR:

But is not the essence of the defence, or those

paragraphs of the first defendant's defence that
have given rise to the demurrer, that whatever
claims are made by the plaintiffs as pleaded, those
claims are extinguished by the operation of the

1985 statute?

MR CASTAN:

Yes, Your Honour.

HIS HONOUR: Well, now is it not enough for your purposes

that the matter goes before the Full Court on the
basis of the statement of claim and events and
demurrer, assuming that the first defendant's
argument is put that way as I imagine it is, that
however these claims are formulated, at least
as formulated in a statement of claim and giving
them their widest possible operation, they have
been extinguished by the operation of the statute?

C3T6/l/SR	8	17/2/88
Mabo(6)

HIS HONOUR (continuing):

Now, if that is the way in which

the matter is going to be argued, and if the material
in volumes 1 to 4 is, as it were, back-up material
which might be said to lend support to those claims,
is it going to bear upon the argument at all
to have resort to that material?

MR CASTAN:

The only response I would give to that is that it

may do so. I cannot say that it necessarily will.
It will depend on the way in which the arguments are framed and very much, I suspect, with respect, on the

course of debate in the course of argument. It is just
that we did not want to be in any way pre-empted - I
suppose that is the word - or be thought that in
some way the Court is having, so to speak, shut out
from it, or concealed from it the total of the
material.

HIS HONOUR:

I do not think anything I do can pre-empt you

or,for that matter,pre-empt Mr Davies or any other
counsel from putting to the Full Court that some
material that-has been included ought not to be
included, or that some material that has been

excluded should have been included. Perhaps before
we go much further, Mr Castan, I should find out from
Mr Davies just what the areas of contention are and
the basis upon which objection is taken to this
material and I will see what other counsel have to say
and just see if something useful can come of this
afternoon's hearing.

MR CASTAN:	If Your Honour please.
HIS HONOUR:	Mr Davies.

MR DAVIES:

Yes, Your Honour.

In our respectful submission,

there is, as Your Honour suggested, some ambiguity in the
way in which our learned friend phrased the matter in
the passage to which he referred you at page 25 of the

transcript. When he said:

For these ten reasons the Act is not
effective to do what your defence says
it does, namely to provide an absolute
defence to that which we claimed we had -

it can mean one of two things. It can mean that your
defence cannot be an absolute defence to rights or
claims of any kind whatsoever - any rights whatever
they might be or any claims whatever they might be and
if that is what it says then it can be the subject of
a demurrer, though it may in the end be unsatisfactory
if the result were reached that it could be an offence
to rights of some kind, but not of others; but if it
goes further than that, if it requires an examination
of the existence, nature and extent of the rights actually
claimed in a statement of claim, then in our respectful
submission, it just cannot be the subject of a demurrer.

C3T7/l/HS	9	17/2/88
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MR DAVIES (continuing): And so it can only be in the former
sense, in our respectful submission, that there
can be a demurrer which can, as Your Honour

has ordere~ go forward for determination. And
in that former sense, in the sense in which, as
we understand it, Your Honour formulated it during
the course of our learned friend's submissions
to you, in that former sense it does not really
matter what the plaintiffs claim their rights are
because the defendant says in its defence, "This
Act, the 1985 Act, in specific terms, in section J(a) 11 - I think it is and perhaps I should
take Your Honour to it; does Your Honour have a
copy there?

HIS HONOUR: Yes, I do.
MR DAVIES: Section J(a), Your Honour, says that:
The islands were yested in the Crown in
right of Queensland freed.from all other
rights, interest and claims of any kind
whatsoever -
The point we really make, Your Honour, 1s
that the demurrer really goes to two questions:
the first is the validity of that Act and the

second is its construction. On neither of those

questions can facts at all be relevant. So no
facts alleged in the statement of claim are in fact
relevant to that issue.

HIS HONOUR: I am not sure that I understand that.

MR DAVIES:

I can perhaps better explain it, Your Honour, if I

take _ you to the demurrer. If Your Honour looks,
t1rst of all, at paragraph 1 of the demurrer, it
is clearly not necessary to look at any facts to
determine that question. Paragraph 2, the same, simply a question of inconsistency, so we simply

look at the Queensland Act and the Commonwealth
Acts. Paragraph 3 is the same, no facts necessary
for it. Paragraph 4 the same, no facts necessary.
Now, paragraph 5 gets into the area where it seems

to us our learned friend's ambiguity arises because
if what we put to you before is the only way in
which a demurrer can go forward, then no facts
can arise on that; that is, if you take 'any rights",
in the fourth line of paragraph 5, to be a reference
to section 3(a) which excludes all rights, claims,
and so on of any kind whatsoever, then it is simply
a question of law and no facts can arise.
But to the extent that the plaintiffs assert that the demurrer goes beyond that question and
requires an examination of the existence or the

C3T8/l/ND 10 17/1/88
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nature or extent of the rights actually alleged
by the plaintiffs, then it cannot be the subject of a demurrer. The existence of those rights, the facts upon which those rights are alleged to
exist are all denied by the defendant and,
~onsequently, the demurrer just cannot raise that
issue.

HIS HONOUR: It could raise it, I suppose, and I am not

suggesting that paragraph 5 does it, but there could
possibly be an argument that as a matter of
construction section 3(a) of the 1985 statute did
not apply to a particular set of rights pleaded
in the statement of claim.

MR DAVIES:

Yes, and in that sense we then get into a

hypothetical question, Your Honour, because it
cannot be a question which can be a subject of
a demurrer because the existence of those rights
are denied. And consequently - that is why I said
that even in that limited sense, Your Honour,
the demurrer can raise a difficulty in the sense
that in fact what may end up being the case is
that the Full Court is being asked to determine
a hypothetical question which may never arise because
the plaintiffs may never establish rights, or rights
of a particular kind, upon which the High Court
is being asked to pronounce.
(Continued on page 12)

C3T8/2/ND	11	17/1/88
Mabo(6)

HIS HONOUR: Well, there is still a matter of the question of

construction, I suppose: do these rights as pleaded
fall within section 3(a)? If they do and if the
first defendant's argument is otherwise upheld
then, presumably, the consequence is that the statute
operates to extinguish those rights. The difficulty
would arise, if, as a matter of construction, rights
pleaded in the statement of claim were held not
to fall within section 3(a).

MR DAVIES: Yes, the only thing I say in answer to that,
Your Honour, that in an exercise of construction
you are assuming facts which the defendant has
denied which is really, in our respectful submission,
contrary to the basis upon which a demurrer can

really go. And, furthermore, one really gets to,
as I said before, the determination of sane sort of hypothetical
question, a construction based on hypothetical

facts. See, our case has always been that with
respect to the existence, nature and extent of
rights, that .depends upon findings of fact, the proper

way to get to that question if it is ever to
be got to is to have findings of fact determined
by Mr Justice Moynihan and for the matter then
to come to this Court as to the determination of whether rights exist on the basis of those facts.

HIS HONOUR: But that is not the basis on which it was put
by counsel for the first defendant at the last
hearing.

MR DAVIES:
I stand corrected by Your Honour but I did not
understand anything that he said on the hearing
before Your Honour being inconsistent with the
way I have put that to you now.

HIS HONOUR: My recollection is that in the end, after a
fairly long day, it was being put to me as a matter
of agreement, unanimity bearing in mind that there
were three sets of parties before the Court, that

to set down a demurrer for hearing before the
Court might in the end save a great deal of time
and expense that could have been consumed to no
effect.

MR DAVIES: That is true, Your Honour, because if in fact
the determination on the demurrer simply is a question
of statutory construction, was it th.at 'it was a valid statutory provision and that it does have the effect

which it appears to state it has of putting
an end to all rights and claims of any kind whatsoever,

then that will put an end to proceedings. Yes,
to that extent there was agreement, I accept that
to be so but I did not understand the submissions
that were put on our side before Your Honour on
the previous occasion to be inconsistent with the
view that I am submitting to Your Honour now that
the argument on demurrer cannot, as a matter of

C3T9/l/MG 12 17/2/88
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law be any wider than that, that is, as to that
question of construction. In other words, it cannot
go into the sort of rights that the plaintiff is
asserting because they are matters which are denied
in our pleadings.

HIS HONOUR:

Yes, I can see that.

MR DAVIES: Now, Your Honour, what we said about 5 is true

about some other provisions but subject to that
there are really no other provisions - perhaps
I should continue taking Your Honour through the
demurrer. Paragraph 6: again we would say about 6(i)
that "rights" there mean rights of any kind whatsoever,

the power of section 3(a) of the 1985 Act.
And the same with 6(ii). Nothing further
in 6(iii) and then if you go on to paragraph 7:

7(i) and (ii) are questions of law unaffected by the
existence of any facts. Paragraph 3 again subject
to what I said to you before about "rights" meaning
what we say "rights" mean - the same. Subparagraph (iv)
the same and subparagraph (v) the same with the

additions that I mentioned. Now, they are all
questions of invalidity, Your Honour, not of construction.
Then one gets to paragraph 8 of the demurrer which
gives rise to a question of construction. It assumes
the validity of the Act but says that it does not

have the effect that rights are extinguished and
again we make the same submission in that respect,
that is, the only question that can be determined
is whether on its proper construction it extinguishes

all rights and claims.
(Continued on page 14)

C3T9/2/MG	13	17/2/88
Mabo(6)

MR DAVIES (continuing): So, 8(i) and (ii) are construction and then (iii
and (iv) are questions of law as are subparagraphs
(v) and (vi) .

HIS HONOUR: I suppose paragraph 8(iii) and (iv) are questions
of law.

MR DAVIES: Yes.

HIS HONOUR:

I just had a slight reservation because of the reference to:
Private rights of indigenous populations.

I suppose you would say for the purposes of the
demurrer you give that whatever meaning you like.

MR DAVIES: Yes indeed, but certainly we cannot go into
what rights the plaintiffs are claiming.

HIS HONOUR: Yes, thank you.

MR DAVIES: Then, when one gets to paragraph 9, Your Honour,
this is another construction question which, really,
takes the matter off the land and into the coastal
waters but, subject to that, is really the same or
a similar construction question.

HIS HONOUR: Just before you leave 9, Mr Davies, the contention
that the islands do not include the areas which are

a question of construction? the subject of the plaintiffs' claim, is that just

MR DAVIES: The plaintiffs' claim the seas and seabeds.

HIS HONOUR: Yes, I should have read on but is that just a
question of construction?

MR DAVIES: Yes. As my learned friend the Solicitor-General

reminds me, it says that in the last sentence.

HIS HONOUR: Yes, thank you.

MR DAVIES: And then, paragraph 10 raises, really, what is
asserted in paragraph 9 as a question of invalidity

rather than just construction. So, really, Your Honour,
what our submission is - and this really emerges from
what our learned friend said to Your Honour on the
previous hearing - that it is not just a question of
ambiguity in our learned friend's statement at
page 25 of the transcript.

(Continued on page 15)

C3Tl0/l/SH 14 17/2/88
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MR DAVIES (continuing):

What our learned friend

really wants to raise - and that is why he says
that these documents are relevant - he wants, in
effect, to have determined by the Full Court of
this Court a demurrer as if it had been a demurrer
by the first defendant to the plaintiffs' statement
of claim.
Now, that appears clear enough, Your Honour,

if you go back to what he said earlier on the
previous occasion before Your Honour. If you go
back, for example, to page 4, and if Your Honour
reads what our learned friend, Mr Castan, said,
commencing about two-thirds of the way down that
page, particularly in the first paragraph.

HIS HONOUR:

You mean the paragraph beginning, "That would depend" - - -

MR DAVIES: "That would depend perhaps," and particularly

in the last part of that paragraph where he said:

there is necessarily encompassed the
arguments that would have been put, or
would be put, had there been a demurrer
by the defendants to the original pleading
of the plaintiffs.

You see, that is really what he is doing. He
really wants, for the purpose of this demurrer
before the Court, the assumption of facts in the
statement of claim and, in our respectful submission,
it is a demurrer of a quite different kind where
the facts alleged in the statement of claim are
irrelevant. The only way this can properly be a demurrer before the Full Court of this Court
is as to the validity or construction of the Act,
looking at rights in a general sense not in respect

of rights which this plaintiff claims. Now, on
that basis, Your Honour, none of the statement
of claim - not just the four huge books of so-called
particulars which, really, when one looks at them
are evidence rather than pleadings , but be that
as it may it is not just those four books that are
irrelevant, it is really the statement of claim

as well. One does not need to look at the statement
of claim and, in fact, it really has nothing to do
with it. All one needs to look at is the defence
for the purpose of seeing what the demurrer is

and the defence and the demurrer are adequate. The
only other point that perhaps I should mention - it
really is neither here nor there - and that is that
when one accepts the principle that for the purpose

of a demurrer to a defence one can only look at
the facts alleged

or admitted in the defence.
But every fact which is alleged in the statement of
claim and which is admitted in the defence is set out
in full in the defence.

C3Tll/l/MB	15	17/2/88
Mabo(6)

MR DAVIES (continuing): Now, we do not say that any of
those facts are relevant to the question to
be determined by the Full Court but that really
highlights the irrelevance of the statement
of claim to this demurrer.

HIS HONOUR: You may be right in the strict sense. There
is a certain unreality, I suppose, about reading
a defendant's defence, even for the purposes
of a demurrer, without knowing precisely what
is in the statement of claim even if it is only
by way of gaining a picture of what the litigation
is about.

MR DAVIES: Yes. Well, at the outset, Your Honour, our
concern was to exclude these four huge books
of particulars and the need for anyone, including
us I might say, to have to read them but in
the end it appears that no part of the statement
of claim on the proper basis upon which this
demurrer can go to the Full Court can be relevant

to the demurrer. I do not think there is anything
else I can usefully say at this stage, Your Honour,
unless there is something else Your Honour would
like me to - - -

HIS HONOUR: Just one matter arising from that argument.
The way in which you put the case, Mr Davies,
would suggest that really what is referred to
as a demurrer is, in truth, a question of law
that is being posed for the consideration of
the Full Court.

MR DAVIES: Yes. Well, as a demurrer, I suppose, always
should be.

HIS HONOUR: Yes, but in a sense, really divorced from
the pleadings -

MR DAVIES: Yes, indeed. I am sorr½ I take Your Honour's

point. Yes.

HIS HONOUR: Yes, thank you. Mr Solicitor.

MR GRIFFITH: If Your Honour pleases. Our understanding,
Your Honour, and it is confirmed by reading
of the transcript to us is that it was hoped
in the previous proceedings before Your Honour
on 3 April last year that the effect of Your Honour's
order and the agreement which was read into
the transcript, Your Honour, would be to determine
the question of whether the plaintiffs' rights,
if any and whatever they are, have been abrogated
by the Act, without opening up the issue of what
are those rights in any way.

C3Tl2/l/AC 16 17/2/88
Mabo(6)

MR GRIFFITH:

Your Honour, it does seem to us that it is

sufficient for the purposes of that examination
with an exception as to a matter which I would seek
to raise separately as foreshadowed by my learned
friend, Mr Castan, Your Honour, that in those
circumstances it is appropriate that the Court
should be burdened only with documents which are
apparently relevant and germane to that issue
and, Your Honour, although it might be casting
the net a little bit widely, we would see it
going no further than the documents numbered
1, 2, 3, 6 and 7 on the list.
In other words, Your Honour, relevant

pleadings excluding the voluminous particulars and
the two documents being the first defendant's
responses to the particulars. And, Your Honour,
we feel that that is sufficient to enable the
Full Court to consider the essential issue which
was sought to be raised, namely, whether without
determining what were the plaintiffs' rights
the Queensland Act had the effect by its generality
as a matter of construction and as a matter of a

power of abrogating them. Now the further
limitation, Your Honour, we would seek to address
if we could do it by Your Honour's leave by
supplementary application after Your Honour has
determined this issue or heard argument on this
issue, is whether it is appropriate that that
consideration should be limited to the plaintiffs'
claims, whatever they are, in respect of land
areas. If I could deal with that as a separate

issue in a moment, Your Honour, we feel, Your Honour,
that it is not appropriate to add to the material -
the voluminous material, particularly the particulars.
Your Honour, we have already had many exercises

in futility in this case since May 1982 in an
attempt to grapple with the issues, and it seems to
us, Your Honour, it is appropriate at this stage

on their face seem more than sufficient to enable to go no further than to put the documents which the demurrer to be considered.

(Continued on page 18)

C3Tl3/l/SR	17	MR GRIFFITH, QC	17/2/88
Mabo ( 6)

MR GRIFFITH (continuing): Your Honour, we would think there
would be no difficulty if a member of the Full Court were of the view that that Justice would be assisted by reference to the particulars in them being made
available, Your Honour. If the plaintiff chooses to
have them there - - -

HIS HONOUR: When you say "particulars", Mr Solicitor, are you
referring to the particulars furnished by the first defendant or particulars provided by the plaintiff?

MR GRIFFITH: Your Honour, the particulars provided by the
plaintiff. The first defendant has not so much as
produced particulars but produced responses to the
particulars which was intended to identify which of
the particulars may be an issue and which may not.

HIS HONOUR: Yes, I see that.

MR GRIFFITH: Your Honour, the course of hearings in this Court
is that one finds, particularly in the Full Court, that
the Court is concerned with the essence of matters and
if it becomes apparent that something is truly relevant
one would not expect that in a practical way the Court
would be denied the advantage of that which it thought
may assist it so that we - - -

HIS HONOUR: Well, the problem, from the plaintiff's point of view,

I suppose, is one of time and expense involved in
preparing sufficient copies of material that may or
may not prove to be relevant.

MR GRIFFITH: Well, not just the plaintiff, Your Honour, it is
also the public purse that is behind all this and we
think that, when one considers the volume of this
material, well, then, that there must be some onus
on the plaintiff to show that this material should
be before the Court and, if it has not satisfied
Your Honour as to its relevance, the appropriate course

but for the plaintiff to act as it may be advised if is for it not to be ordered as a matter of precaution
it feels that it is in its interest to have it available.
Your Honour, we cannot see ourselves how it is relevant
other than it may be as my learned friend, Mr Davies,
referred to Your Honour, to page 4 of the transcript,
that the plaintiff has an ambition here to ventilate
arguments on the basis equivalent to the claim itself
being argued out in its full.

Now, there is a hint of that there, Your Honour. I am not sure exactly what is meant but we would think
that Mr Davies has made a valid point of distinction
between - and I think we mentioned ourselves on the
last occasion - a demurrer to a defence and a demurrer
to a statement of claim but, Your Honour, the general

C3Tl4/l/SH 18 17/2/88
Mabo(6)
approach to the Court is to, in our submission,
have an examination of relevance to this issue of
settling documents whether it be attached to a
demurrer or to appeal book and, at the moment,
Your Honour, we would submit that the case for
asserting that these particulars is relevant has
not been made out.

HIS HONOUR: The point that you wish to raise at a later stage,
Mr Solicitor, does that arise quite independently of
any order that may be made in respect of the contents
of the demurrer book?

MR GRIFFITH: Yes, it does, Your Honour. It is a discrete point.

HIS HONOUR:	Yes, thank you.
MR GRIFFITH:	Your Honour, if I may mention one other matter,

and we see an issue of principle here, we would object

to my learned friend, Mr Bennett, being heard. We
would say that he has no interest whatsoever in this
issue which we find difficult enough with three sets

of counsel to determine. We assume, of course,
Your Honour, that he is here merely for the purpose
of assisting from the interests of the client that
has instructed him to appear but we would say, having
regard to the practice of this Court on the preliminary
issue of settling the terms of a demurrer and a demurrer
book, without having heard from him as to the particular
reason why he says he has an interest to contribute to
that, we would, for the moment, Your Honour, object as
a matter of general principle to the Court permitting
access at this stage even if it is expressed as
qualified and limited to this stage of litigation.

HIS HONOUR:

It would seem to be in the nature of a watching

brief in the sense that, dependent upon the outcome
of today's hearing, Mr Bennett may or may not seek
leave to intervene on the hearing of the matter before

the Full Court.

MR GRIFFITH:

That ..... Your Honour.

My learned friend

can watch.

HIS HONOUR:

Yes, but he may want to do more than watch when I

turn to him in a moment.

MR GRIFFITH:

Yes.

Your Honour, I object to him doing more than

making an argument as to why he thinks it is appropriate
for him to be heard.

HIS HONOUR:

Yes, thank you.

MR GRIFFITH: If Your Honour pleases.

C3Tl4/2/SH	19	17/2/88
Mabo(6)

HIS HONOUR:

Mr Bennett, perhaps I should look to you now to

see whether you intend to do more than watch.

MR BENNETT:

Your Honour, I only wanted to say something

which will take about 90 seconds to say, but which,
to explain the reasons why I want to say it,might
take longer than to say it.

HIS HONOUR:

Well, I will hear the 90 second version, then I

will decide what to do about the longer version.

MR BENNETT:

If Your Honour pleases. All I want to say is this:

one of the most important questions affecting the
Northern Territory is the question which has been on
the edge of a number of cases for some time which is
the question of the existence or otherwise of the
rights ultimately asserted by the plaintiffs in this

case. That question will one day have to be decided

by this Court. We have no particular view to put as
to whether it is decided in this case, in this case
at this stage, in this case at a later stage, or in
some other case. What concerns us is that when it
is decided the question is fairly and squarely before
the Court so everyone knows it is to be decided and
we can seek leave to intervene and the matter can be
heard and debated, and what concerns me is that if the
material which the plaintiffs seek to have included is
included thi-s case may go to hearing in March with some
uncertainty as to whether one or more members of the
Bench may wish to raise that question and determine
it, either in strong obiter or otherwise in the course
of this case, and we are concerned that that should
not happen, but that the issue should either be
before the Court or not before the Court.

HIS HONOUR:

That is a risk you take in any event, I suppose, because if I direct today that the demurrer book

include material which does not take in the four

books, that is not to say that a member of the Court

may not call for some of that material.

MR BENNETT:

No, that is so.

HIS HONOUR:

I do not know how you cope with that.

That must

be a matter for your client, I suppose. It is not
something that I can deal with today.

MR BENNETT:

No, that is so, but all I wished to do was to put

that problem before Your Honour.

HIS HONOUR:

The record will show what you have said, Mr Bennett,

thank you. Now, Mr Castan.

MR CASTAN:

Rather than go into what perhaps would become a

lengthy argument as to the disagreements we have with
my learned friend, Mr Davies, as to the matters he has

C3Tl5/l/HS	20	MR BENNETT, QC	17/2/88
Mabo ( 6)	MR CASTAN, QC

out, could I indicate to Your Honour that in view of
the helpful indications, at least at this stage,
from the learned Solicitor-General, and what has fallen from Your Honour, we would be prepared to
indicate that if the items were included which he
listed - and I have forgotten those numbers now -

HIS HONOUR:	Items 1, 2, 3, 6 and 7.
:MR CASTAN:	Yes, that if they were included we would be, for

our part, content with that leaving, as has emerged,
this possibility that if it is called for or otherwise
arises the question of reference to that which is
incorporated, so to speak, by reference in the
statement of claim, can be left to the course of
argument, if that emerges.

HIS HONOUR:

That case is - subject to anything Mr Davies

may wish to say, there is probably no area of
disagreement, certainly as between yourself and the
second defendant.

:MR CASTAN:

No.

HIS HONOUR:

Mr Davies would still argue, no doubt, that the

statement of claim should be excluded and, I suppose,
as a consequence, that the reply should be excluded.

:MR CASTAN:

I would not want to go into that in view of the

indication I have given.

HIS HONOUR:	No.
:MR CASTAN:	But we are puzzled by it.
HIS HONOUR:	It just seems unfortunate that progress in this

matter seems to be following a sort of pattern in which
there appears to be wide areas of disagreement until
counsel get before the Court, and after a certain amount
of blood-letting it then appears that there is almost

unanimity.

:MR CASTAN:

Well, the parties are a long way apart in this

action generally, Your Honour.

HIS HONOUR: Yes, I understand that in the ultimate. It is just

that I am concerned particularly by considerations of
cost and wonder whether some of these questions perhaps
could not be resolved outside the court room,
although I accept, particularly given the calibre of
the counsel appearing before me, that all efforts have
been explored before the matter does get before the
Court.

C3Tl5/2/HS	21	17/2/88
Mabo(6)

HIS HONOUR:

Yes; thank you,

Mr Castan.

Mr Davies, I do

not know whether you want to be heard on documents
1 and 6 which, I take it, would be the only
documents that you seek to have excluded that
Mr Castan now seeks to have included.

MR DAVIES:

Yes. Your Honour, I think we have said all

we had to say and as I think I indicated to
Your Honour earlier and as Your Honour may have
seen as you read our affidavit to which the letters
were exhibited, our first approach to them was
that the voluminous document should be excluded
and I think we said only those paragraphs admitted
in the statement of claim. But, at that stage. we
had not gone through them and said, as we do knowi that
the whole of the statement of CLaim should be
excluded. But I cannot add anything further,
Your Honour.

HIS HONOUR:	Yes, thank you.
MR BENNETT:	Would Your Honour excuse me from further

attendance?

HIS HONOUR:	Yes, Mr Bennett.
MR GRIFFITH:	Your Honour, before my learned friend goes

could Your Honour indicate that Your Honour has not
ruled as to whether my friend may intervene?

HIS HONOUR:

Well, I thought I had made that clear by saying

that the record would show what Mr Bennett had
said and, I suppose, in a negative way it will
show my absence of reaction to what - - -

MR GRIFFITH:

Yes. Well, Your Honour did make it clear

to me but it is nice to have it expressed like that,
Your Honour.

HIS HONOUR:

Well, if you need to have it more clearly spelt

out, Mr Solicitor, the record will show further
that I have not made any ruling in respect of
Mr Bennett's application.

MR GRIFFITH: If Your Honour pleases.

MR CASTAN:	Your Honour, before I conclude this aspect of the matter,my learned friend referred to the
correspondence which has been exhibited to an
affidavit and there has been a further letter
delivered today in response to the last letter delivered in the sequence of correspondence
concerning this issue. It has not yet been
possible to have an affidavit sworn exhibiting
the letter that has gone from my solicitors to
my learned friend's solicitors. But I would seek
to hand it up simply to ensure that the totality of the correspondence to date is incorporated simply

C3Tl6/l/MB	22	17/2/88
Mabo(6)

because - I do not think it will matter but
if it does ever matter we want the whole of
the correspondence to be there.

HIS HONOUR: Yes, thank you.
In view of the concessions made by counsel

for the plaintiffs, which I take to be concessions
made for the purposes of the present hearing,
there is not much to be gained by my dealing
in any detail with the documents that are sought

to be included in the demurrer book. The documents
that give rise to the most contention are those
constituting four books and described as document 8.

As the plaintiffs now no longer seek to have
those documents included in the demurrer book,
there is no need for me to explore the sort
of questions that were raised by Mr Davies.

As between the plaintiffs and the second defendant,
the Commonwealth, there is now complete agreement

as to the contents of the demurrer book. As

between the plaintiffs and the first defendant,
the only two documents that are in issue are
document 1, the statement of claim, and document 6,
the plaintiffs' reply. I see some force in
what Mr Davies said as to the nature of this
demurrer, being as it is a plaintiffs' demurrer
and not the ordinary defendant's demurrer that
one encounters. Therefore, the matter comes before the Court not with matters pleaded in
the statement of claim admitted but, on the

contrary, with such matters denied. Neverth~less,
it seems to me that there is an unreality in
seeking to divorce the statement of claim and,
in turn, the reply from the defence and to direct

that the Full Court be furnished only with the
defence of the first defendant, unaccompanied
by the statement of claim to which it purports

Tl6	to be an answer.

Armed with the statement of claim the defence
and the reply, the Court will be given, I hope,
an adequate picture of the issues that are raised
by this litigation and the particular matters
that fall to be determined by the demurrer.
I therefore propose to direct that the demurrer
book include documents 1, 2, 3, 6, and 7, as numbered on the document entitled ''Pleadings
to be Incorporated in Demurrer Book". It is
not for me to say anything as to questions that
might arise during the course of the hearing,
or whether it may appear to other members of
the Court that some documents assume an importance
that they, at the moment at any rate, appear

not to have.

C3Tl7/l/MB	23	17/2/88
Mabo(6)

I think that disposes of the directions hearing,
but there is the question which you foreshadowed,
Mr Solicitor?

MR DAVIES:

Your Honour, can I just mention two matters before my learned friend does, both of them

fairly short. The first is a question of costs

on this application. We were brought here because
our learned friend's client insisted upon all
of these documents going into the demurrer book.
Now I say that in the sense that there also

has been an argument about the statement of claim. But in fact if Your Honour looks at the letter of 22 December 1987 from our learned
friend to Mr Jones, copy of which was sent
to us and our letter to the plaintiffs' solicitors
and indeed their refusal, we requested they
do not include the documents under item 8 in
the demurrer book and we went on to say that
the full amended statement of claim should not
be included, but only that part which the first
defendants admitted should be included.
(Continued on page 25)

CJT17/l/SR 24 17/2/88
Mabo(6)
MR DAVIES (continuing): In our respectful submission, our response was, we would submit, a reasonable one.
We were brought here because the plaintiff has
insisted upon all of these documents being included
in the demurrer book and for that reason we should
be entitled to costs as to that.

HIS HONOUR: Mr Davies, it seems to me that the proper order
for costs in the presenl circumstances is that

costs be reserved. I do not know what is likely
to happen before the demurrer hearing is concluded.
It is at least conceivable that some of these
documents may prove to h~ve a relevance
which seems to be conceded by the plaintiff they
do not pr~sently have and I think that is the
proper order to make.

MR DAVIES:	I take Your Honour's point.
HIS HONOUR:	I make that order: the costs of today's hearing are reserved.
MR DAVIES:	If Your Honour pleases. I mention one other

formal matter, Your Honour, and that is that there
are some amendments to our amended defence in
consequence of amendments which were made to the
statement of claim and I seek leave to file an
amended defence incorporating those. They are
reall½ for the most part, cosmetic amendments,
Your Honour, but we need leave to file an amended document.

HIS HONOUR:

I have a document which is headed "Further amended

defence of the first defendant,. the State of Queensland
delivered the 12th February 1988."Is that the document?

MR DAVIES: Yes, it is. That is it, Your Honour.

HIS HONOUR:

The amendments, I take it, are those underlined apart from paragraph 1 which simply picks up the

fact that the statement of claim itself has been

amended_. It seemed to bear upon some distinction

that is drawn between the Great Barrier Reef and

the islands and the sea bed more generally.

MR DAVIES:

That was because of an amendment to include the

Barrier Reef in the statement of claim.

HIS HONOUR: Well, let me make sure that everybody is ad idem

as to what is sought to be done. Paragraph 1
seeks to have the words, "as amended October 1986"
included. Paragraph 7(a) seeks to have additional
words"but does not admit that such use_and eni'ovment extends

or has extended to the Great Barrier Reef". Is that ·-it?

MR DAVIES: Your Honour, I think there might be an earlier one which 1s
of a fairly formal kind in paragraph 5 - "first" and "is a
descendant" in paragraph S(b).

C3Tl8/l/MG 25 17/2/88
Mabo(6)

HIS HONOUR: Yes, I see that, yes. Is there any objections,

Mr Casta!4 to those amendments?

MR CASTAN:	No.
HIS HONOUR:	Then there will be leave to the first defendant

to amend the defence accordingly? Now, Mr Solicitor?

MR GRIFFITH:

Your Honour, we have taken it from the nature of Your Honour's adjournment of the previous surrrrnons

on 3 April, particularly what Your Honour said
on page 42 of the transcrip½ that when this matter
was brought on today that it was to be treated
as a general directions surrrrnons dealing with

mechanical difficulties which might arise from

what we dealt with last time.

So that, Your Honour,

we would regard our application as being part
of the matter brought on before Your Honour today
not a separate application; it is just an issue to be considered.

HIS HONOUR:

What is the matter that arises?

MR GRIFFITH:

Your Honour, it will be necessary for me to

take Your Honour back to the course of what we
discussed on 3 April, but if I could indicate to

Your Honour that the second defendant in this

litigation, Your Honour, has been very much in the

position of a subsidiary party and I think Your Honour, in

Your Honour's more recent contact with the case,has

sufficiently identified the principal issues of

dispute between the plaintiffs and the first

defendant.

Now, Your Honour, just as it seems this

case, Your Honour, that in that role it seems when
we do appear before Your Honour we emerge as a

precipitating factor or perhaps to some extent

even a go-between, Your Honour, to resolve things
which seem to be irreconcilable, so far as being

:in dispute between the parties, short of us

appearing before the Court, Your Honour. It would

seem that the same thing happened on 3 April

last year. There Your Honour will recollect

that the matter having been referred for hearing

before the Supreme Court of·Queensland had got

bogged down, Your Honour, to the extent that it
seemed to be a common view between the plaintiffs

and the first defendant that the exercise there

was to adopt the expression recently stated by
Your Honour, "an exercise in futility".

The matter was brought back, Your Honour., to
see whether or not the litigation could be brought

back on the rails. Now, Your Honour also
recollects with perhaps distressing clarity the
course of what occurred during that day with several
appearances before Your Honour during the course of
the day.

C3Tl9/l/SR	26	MR GRIFFITH, QC	17/2/88
Maho(6)

MR GRIFFITH (continuing):

And what emerged, Your Honour,

was that there was an agreement made between the
parties read into the transcript on page 42
which enabled, Your Honour, the orders to be made

for the demurrer to be set down. Now, if I may

take Your Honour briefly to that agreement. The first paragraph is that the demurrer be set down
for hearing and Your Honour will recollect that

the demurrer was further amended during the course
of that day, that the matter should be mentioned
before Mr Justice Moynihan with a view to further
ajournment and I understand that has been

forthcoming, Your Honour. And then the third
paragraph, Your Honour represents the substantive
agreement between the parties which enabled the
matters to be resolved in principle before
Your Honour.
That agreement, Your Honour, is that:
If in the hearing and determination of the
said matters of law, the QUEENSLAND COASTS
ISLANDS DECLARATORY ACT 1985 is held to be
a valid law of Queensland, operative and
having effect in relation to the alleged
rights claimed by the Plaintiffs in
relation to land areas the subject of this
action, then the Plaintiffs hereby undertake
and agree that they will not pursue any
further proceedings in this action in
relation to any such land areas and in
relation to any areas of seas, seabed, reefs
or cays claimed by them in these proceedings,
including any waters between the fringing
reefs and any land mass, and the Plaintiffs

will seek to discontinue the proceedings,
th~ ~arties agreeing that no rights to costs,
ar1s1ng -
solely -

from such discontinuance shall be exercised.

Now, to put content into that agreement, the plaintiffs' claims concern, we would say, as its
principal claim, Your Honour, the claim to on-shore
areas. There are also claims which have been
amended as Your Honour referred to to areas dealing
with the immediately adjacent sea off-shore from
these land areas, on Murray Island, and also,
Your Honour, a general claim to some proprietary
or other interest to fringing reef areas that are
some considerable distance away - it does not matter
what distance, Your Honour, but some miles away.

C3T20/l/ND	27	17/1/88
Mabo(6)

MR GRIFFITH (continuing): It is not altogether clear whether
those fringing reefs involve any area which are above

a high water mark or not. That is a matter that has
not been resolved but there is the land~ the immediately
adjacent offshore areas where there are various claims
to fishing rights and other rights and these fringing
reefs.
Now, Your Honour, the pleadings including, it

must be conceded, the amended demurrer deal with all
those areas and, in particular as Your Honour just
noted paragraphs 9 and 10 of the amended demurrer, deal firstly with the issue of construction. Does
the 1985 Act cover the offshore areas and then
paragraph 10, if it does, then as a matter of power,
that the Act did not validly affect those areas.
So, Your Honour, clearly on the pleadings there is
an issue joined as to whether or not the plaintiffs
do have any rights, using that in the general sense,
with respect to offshore areas and whether those
rights, if any, are affected by the Queensland Act.
Now, it is to offshore areas that the Commonwealt~

second defendant, has some interest. For example, when
one looks at the various particulars pleaded to the
last paragraph of the demurrer, there are allegations
as to power and other issues. Your Honour will see
from the correspondence which is exhibited to the
affidavit before Your Honour that an issue has been
raised as to whether or not argument on these points
will involve the SEAS AND SUBMERGED LANDS ACT case,
NEW SOUTH WALES v THE COMMONWEALTH,135 CLR and there
is a suggestion in the correspondence not answered
that one or other of the parties might seek to
re-agitate issues determined by the Court in that

case.

HIS HONOUR: But, as you read the demurrer, leaving aside questions
that may have arisen through correspondence, do I

understand the Commonwealth to have an interest in
the questions raised by the demurrer?

MR GRIFFITH: Yes. We see these issues as raised where there

is an allegation going as to Commonwealth power,
Your Honour, and what does concern - - -
(Continued on page 29)

C3T21/l/SH 28 17/2/88
Mabo(6)

HIS HONOUR: The allegation does not go to Commonwealth
power, as such, does it, except by implication
I suppose?

MR GRIFFITH: Well, Your Honour, should I indicate that
our interest in this issue is not confined merely
to the interest which we have because it goes
to an issue of our power but to the question
of what is the proper and appropriate conduct
of this litigation having regard to the circumstances,
including the terms of the agreement, the terms
of which Your Honour has.

HIS HONOUR: I am just anticipating, or trying to anticipate,
what the Commonwealth's role might be on the
return of the demurrer.

MR GRIFFITH: Well, Your Honour, if it is the case, and

we do not yet know, but we w0uld regard it as encompassed
within the pleading that there are some issues
as to the proper construction and application
or even as to reconsideration of the
SEAS AND SUBMERGED LAND ACTS case, Your Honour,
well, obviously we would be closely involved
in those issues. There are also, Your Honour,
particularly in those last two paragraphs of
the demurrer that I mentioned, Your Honour -
perhaps the issue of construction in paragraph 9
is not so crucial but the issues in paragraph 10,
Your Honour, deals with the question as to what
was the position prior to the coming into operation
of the COASTAL WATERS STATE TITLE ACT 1980 and
the last paragraph (iv) on page 7 deals with
this question of whether or not just terms are relevant - the power being derived through the
Commonwealth Act, and that is an issue where,
Your Honour, we would be interested.

But, Your Honour, we wish to make our

application here on two bases. One is, Your Honour,

dealing not with the question of what is on
a close reading the ambit of the demurrer but
on the issue, Your Honour, of what was the spirit
of the agreement which was reached with the
assistance of the pressures of the matter being
before Your Honour on 3 April. It is our understanding,
Your Honour, and we believe we sufficiently
conveyed that to the Court at the time, that
the essence of the resolution of the issues
which had left the case, we would say, in a
state of continuous exercise of futility was the
acceptance by the parties, as a matter of reality,
that if on the hearing of the demurrer the plaintiffs

were unsuccessful in establishing the argument
that the 1985 Act did not extinguish their claims

C3T22/l/AC 29 17/2/88
Mabo(6)
to land areas then the plaintiffs ~:cepted,
Your Honour, that that went to the essence of
their claim and without engaging in an exhaustive
determination of their alleged claims as to
the off-shore areas, the plaintiffs then would
discontinue the action in its entirety.

(Continued on page 31)

C3T22/2/AC 30 17/2/88
Mabo(6)

MR GRIFFITH (continuing):

Your Honour, that was a very

common sense and reasonable approach to the issue
and Your Honour, just to reinforce our submission
that that was our understanding of the essence
of the past agreement could I take Your Honour
briefly to parts of the transcript?

HIS HONOUR:	To what end are you seeking to do this?
MR GRIFFITH:	Your Honour, we do not seek to allege that

there is, when one regards the agreement as a whole,
an order of the Court which limits matters to be
determined on the demurrer to the on-shore areas,

because the demurrer is wider than that. But what we
seek to submit, Your Honour, is that it was the
perception, we submit, of the parties at the time
that in a common sense way to resolve the impasse
in this case it was intended that the issues to be
put before the Full Court should resolve this
issue of whether or not the 1985 Act put an end
to claims in respect of land claims - the on-shore
claims, on the basis that if it did that would be
the end of the action.
Now, it is our submission, Your Honour, that

as a matter of avoiding further exercise in
futility, having regard, Your Honour, to the course
of this litigation to date and the ambit of it
merely in respect of the on-shore areas, that it
is appropriate that for the purpose of reference
of the Full Court, the matters to be set down for
hearing should be limited to those parts of the
demurrer dealing with the on-shore areas. Because
if it is held in respect of them that the 1985
Act puts an end to all claim, that is the end of

the action. So that if the Court, Your Honour,
does hear argument in respect of the off-shore
areas, in ours.ibmission, in essence the Court will
be asked to give what is an advisory opinion,
because even if the issue of construction, for

example that Your Honour referred to in paragraph 9
is answered on the basis of the Act does not apply
to off-shore areas, if the plaintiffs are
unsuccessful on-shore the action non~ the less comes
to an end because of the terms of the agreement of
which the Court is aware. That will be the end of
the action.
Your Honour, we would submit, that there really

is enough to concern the Court in dealing with the
various claims dealing with the on-shore areas to

make it appropriate for Your Honour to order -
perhaps, Your Honour, subject to any contrary order
of the Full Court when the matter comes on - that
when the demurrer is listed to come on for hearing,

subject to contrary order,it be ordered that it
be limited to the on-shore areas, which in effect

C3T23/l/SR	31	17/2/88
Mabo(6)

means that the issues raised under paragraphs 9 and 10
and also in respect of three of the _·kts listed
under paragraph 2 which deal with off-shore
legislation - it is the COASTAL WATERS STATE TITLE

ACT, the COASTAL WATERS STATE POWERS ACT and

TORRES STRAIT FISHERIES ACT, which enacts the
Torres Strait treaty, Your Honour - be subject,
Your Honour, to any contrary order which may be
made by the Full Court should not be heard and
determined.
(Continued on page 33)

C3T23/2/SR	32	17/2/88
Mabo(6)

MR GRIFFITH (continuing):

Your Honour, we see, firstly, that

that does reflect the spirit of the compromise and
certainly, Your Honour, it was our understanding -
we did raise this issue in correspondence with the
defendant's solicitors and if I could hand Your Honour
the counterpart of our letter, 15 January 1988, which
is already exhibited to the first defendant's
affidavit and, with my learned friend's consent,
the copy reply, 21 January 1988, as to that.

HIS HONOUR:	What is the date of the first letter, Mr Griffith?
MR GRIFFITH:	15 January 1988, Your Honour, is a letter

to the first defendant's solicitors. The letter
I now hand to Your Honour is a copy of that same

letter. A letter in those terms was also sent

to the plaintiffs' solicitor. Your Honour, we
do not desire to appear and concern the Court with matters which need not be raised for the determination before the Court, having regard to
the provisions of the pleadings, the terms of
the demurrer and the terms of paragraph 3.
We can see, Your Honour, wide-ranging possibilities

as to possible argument being raised by the parts
that the plaintiff claimed dealing with off-shore
areas,including the adjacent territorial sea and

the fringing reefs. Your Honour, one does not see
in the pleadings any particulars as to the manner
in which either defendant has alleged to be denying

or a-ffecting these rights. We see, Your Honour,
that on the pleading that is an abstract issue
raised by the pleading for determination. It is
one, Your Honour, which in the ordinary course
and in proper form the plaintiffs would be entitled
to have heard and determined intheappropriate
court.

We do not see, Your Honour, that the hearing of the demurrer

having regard to the terms of
the agreement ma.de before the Court and read into the
transcript in April last yea½ a matter which is

appropriate at this stage. Your Honour,
the essence of our submission is that as a matter
of common sense to leave the issue as broad
as to include these off-shore areas in these ways,
in our submission, Your Honour, is to continue
these exercises in futility which since May 1982
have resulted in the tortuous course of this case,
to a point where some almost seven years

after litigation was commenced, really no relevant
issues are resolved.

C3T24/l/MB	33
Mabo(6)

11R. GRIFFITH (continuing): Now, the progress we made in April
last year and we were attempting merely to use good
offices, Your Honour, to ensure that there was progress
and efficiency rather than inefficiency and futility
was that the primary parties did agree that if the
onshore claims were made untenable by the 1985 Act,
that was the end of the action and it is our submission
that that sensible agreement should continue to be
reflected in the course of consideration of this
case until that issue is determined.
Now, if it is determined on the broader view,

Your Honour, well, then, as appropriate, the question of the theoretical claim to offshore areas raised by
paragraphs 9 and 10 could, perhaps, be set down before
the Court. It might be, Your Honour, appropriate at
that stage for the matters again to be referred for
determination on issues of fact. That could be
considered as appropriate but we submit that on that
approach and, having regard to the history, that the
position at the moment is that it is appropriate for
Your Honour to order that the matters be limited, subject, of course, Your Honour, to the approach of

the Full Court as to that. The alternative,
Your Honour - - -

HIS HONOUR: In a sense, that is overriding the issues which,
by agreement, by the demurrer, be heard or be determined
by them.

11R GRIFFITH: Well, Your Honour, if I could address a strong

submission on that point. So far as the spirit of
the agreement which we were involved with on 3 April
under the time constraints of the matter as before
Your Honour, it was desired in a sensible way to
resolve it, our understanding of that which was
agreed was that matters were to be limited to the

question of land areas. Your Honour, could I take
you to the transcript where several times I said

that to the Court and my learned friend, Mr Castan,
did not disagree with that. Firstly, on page 15,
the main paragraph beginning:
Now, in respect of the basic claim in

respect of land -

having referred, in the previous paragraph, to say
that:
The essential nature of the plaintiffs'
claim, it is concerned with claims with
to land, rather than offshore areas.
Now, in respect of the basic claim in

respect of land on the Murray Islands, the
issue has arisen that the 1985 Act is asserted
that, on its terms, even if there be rights such
as the plaintiffs allege, those rights have been
retrospectively abrogated by the 1985 Act.

C3T25/l/SH	34.	17/2/88
Mabo(6)
MR GRIFFITH (continuing):

Now, it does seem to us, Your Honour, as
the second defendant, that that is a , really,
decisive issue between the parties. If the Queensland Act did that which, on its face,
it was apparently intended to do, Your Honour,
well, then it would seem that it is common
ground that the action will be at an end
and the effect of the terms of this agreement
that we have referred to, Your Honour, would
be that, even if it were held that the Queensland
Act in its operation was limited to land areas,
if the Act did effectively cover any claims to rights in respect of the land areas, the
plaintiff accepts that the action should end
and that the plaintiff would not pursue the
claim in respect to offshore areas.
On the next page, page 16 at the foot of the page,
Your Honour, we say the same thing again:
Now, it seems we have got to the point, at
least, Your Honour, that there is common ground
that if it is held in that circumstance if
they are as alleged, and the 1985 Act is held
to abrogate them in respect of the claims
in respect of land, well, then that will end
the action.

Further on on page 18, Your Honour, we say:
and I think we only need be concerned with
onshore areas for the purpose of this examination,
Your Honour, that the Act was passed with
that intention.

Further on page 19, Your Honour, we say:

Ore tends to find, Your Honour, that such
possibilities of more felicitous wording can
be avoided by the parties' desire to get to
the essential issue and resolve it, and here
it must be the essential issue is no more
and no less than, does the 1985 Act abrogate
finally all claims of the plaintiffs to the
land areas.
Next page:
We feel, Your Honour, that that is a significant
enough issue and a decisive enough one, given
that the State Act was directed to the very
point, to end the plaintiffs' claim in respect
of the land action.

C3T26/l/MG	35
Mabo(6)

Now, having said that, Your Honour, we of course concede that the demurrer, by its terms,
Your Honour, is expressed to the wider offshore

areas, paragraph 9 and 10. And, Your Honour, we
certainly did not specifically raise the issue
that they should be disconnected from the
demurrer.
(Continued on page 37)

C3T26/2/MG	36
Mabo(6)

MR GRIFFITH (continuing): That might be regarded,
Your Honour, as an oversight but one which we would
seek to explain on the basis that what we were
concerned with was to get a common-sense result
dealing with the spirit of matters of issue which
was, we would submit, Your Honour, a sensible one.

terms does enable these matters to be argued but
what our submission is today is that having regard
to the agreement which remains the agreement between
the parties as to the fate of the action having
determined the issue of on-shore areas adversely
to the plaintiffs, we would submit, Your Honour,
it is inappropriate as a primary approach for the

We concede, Your Honour, that the order by its an answer to these wider questions.

For all we know, Your Honour, it might prolong
the hearing by another two or three days. It might
give rise to leave being sought to reargue the
SEA AND SUBMERGED LAND ACT case, we do not know;
we have asked the parties to indicate but we have

got no response. We are anxious that one or other
of the parties, perhaps the second defendant, may
raise that issue, we do not know, but, Your Honour,
we raise the question for Your Honour, it is really
a matter for Your Honour to consider and regard
what is appropriate to protect the Full Court in
these matters as to whether the matter should be
listed with a view to these wider issues being
canvassed.

HIS HONOUR: If I was to give effect to what you are seeking,

Mr Solicitor, how would that be done in practical
terms?

MR GRIFFITH:

Your Honour, it would be a matter of

alteration of Your Honour's order for the demurrer
to be set down - to say, "set down other than in respect of the three listed Acts in paragraph 2 and paragraphs 9 and 10."

HIS HONOUR:

Do you mean a complete excisi~n of

paragraphs 9 and 10?

MR GRIFFITH:

Yes, Your Honour, they stand alone: 9 is

construction and 10 is power with off-shore areas.

HIS HONOUR:

But as

to paragraph 2 you say it would be

enough to delete any reference to - - -

MR GRIFFITH:

THE COASTAL WATERS STATE TITLE ACT, THE COASTAL

WATERS STATE POWERS ACT and THE TORRES STRAIT TREATY,
et cetera.

C3T27/l/ND	37	17/1/88
Mabo(6)

MR GRIFFITH (continuing):

Your Honour, we appreciate we could

renew that application before the Full Court, but
we think that itself would be a waste of time because
it is necessary to be educated into the case to the
extent which Your Honour unfortunately has to see the

force of our argument. We would submit, Your Honour,
it is appropriate that Your Honour so limit, and, of
course, that it be possible for one of the other
parties who may take a broader view to ask the Full Court
to widen it.

HIS HONOUR:

In asking the Full Court to widen the matter, if I were to

narrow it, the same process of education would have
to take place.

MR GRIFFITH:

Your Honour, we would hope the parties would not,

but it does remain, Your Honour, that this has been a

difficult case. We throughout, as a party, have
attempted to act in a co-operative way to ensure a
cotmilon sense practical agreement and operation of the
necessary procedures to bring matters to where the
case ultimately may run for all issues to be determined

by the Full Court of this Court. Now, Your Honour,
we have, in the past, attempted to get to a result
which was at last, after some years, reflected in the

agreement of April last year. Now we did, without
going to the fine print, Your Honour, emerge with
what we understood was something which was in the
interests of all parties and the Court.
We feel, Your Honour, for the reasons we have

stated, that if a tight reading of the terms of the
agreement, to the extent of setting down the whole
demurrer, remains ordered, that does undo the spirit,
the cotmilon sense, the efficiency of what was the
essence of the agreement between the parties to deal
with the decisive issue, the onshore claims. Now,
Your Honour, the plaintiffs, to some extent, of course,
have conceded that by the terms of the paragraph,

which I handed to Your Honour, one gets to the and when one reads the answering letter, Your Honour, position that in essence what the plaintiff is saying

is, "Even if we lose onshore areas and we then
must discontinue, we none the less insist on our right
to get an answer to the question as a matter of law
as to our claims to offshore areas."
Your Honour, that must be a most unsatisfactory

and inappropriate manner for any issue to go before
this Full Court, and we would submit that so expressed
it is expressed at no more than an expression of an
advisory opinion. There are difficulties enough,
Your Honour, given the circumstance that this is a
demurrer raised by the plaintiff which, in essence,
raises questions of law, but that probably, Your Honour,

is an appropriate analysis. We say that in essence

C 3T28/l/HS	38
Mabo(6)

questions of law are raised. Those questions, we
would submit, Your Honour, are primarily within
Your Honour and Your Honour's powers to order and, for the reasons we have stated, Your Honour, we submit that
it is appropriate to confine matters to the essential
issues, the on-shore issues, and as we have indicated,
Your Honour, in so submitting, we regard that as
consistent with the manner in which we indicated our
encouragement and indeed the way in which we
facilitated the course of settlement of 3 April.
(Continued on page 40)

C3T28/2/HS	39
Mabo(6)

HIS HONOUR: Mr Solicitor, just so that I am quite sure
that I understand what is involved in what you
are putting to me, I take it that you are saying that having regard to the terms of the agreement

enunciated by Mr Castan at the hearing on
3 April, if the plaintiffs were to fail to show
that the 1985 statute was invali4 then even
if there is a matter of constructio~ the operation
of the Act is confined to land areas, the plaintiffs
have undertaken to abandon their claim, both
in respect of land and sea areas.

MR GRIFFITH: Yes, Your Honour. So that although the
1985 Act was something which was introduced
after the plaintiff commenced the action so that

the issue of the demurrer is to say: "Does
this shut off anything which otherwise would
have been the plaintiffs' claim", the plaintiffs
have specifically agreed, Your Honour, that
if they merely emerge unaffected in off-shore
claims, they none the less will discontinue.
That was the essence of our agreement, Your Honour,
and perhaps I should confess error, Your Honour,
that being concerned with the essence I was
not concerned with the small print but we feel
our references to the transcript make it abundantly
clear what we were referring to. And that was, again,
Your Honour, great progress in the face of the
Court. We have not been involved as a primary

party in the litigation elsewhere. We did not

appear before Mr Justice Moynihan when things ~

got of~ the ra~ls there. We have at.tempted, Your Honour,
from time to time to produce a result acceptable
to the parties. It seems on each occasion,
Your Honour, our attempts only bear fruition when we have the advantage of being in face

of the Court. Now to some extent, Your Honour,
we would say that not only were our intentions
frustrated but the intentions of common sense

will be frustrated if we do not have this limitation. (Continued on page 41)

C3T29/l/AC 40 17/2/88
Mabo(6)

MR GRIFFITH (continuing):

But we do concede, Your Honour,

it is not a matter of agreement because of the
paragraph 1. It is a matter of what is appropriate
now having regard to paragraph 3.

HIS HONOUR:	Yes, thank you,Mr Solicitor.	Mr Castan.
MR CASTAN:	Your Honour, it was not our understanding that implicitly or explicitly we	were abandoning

grounds 9 and 10 or that they should be deferred
or in any other way treated other than as expressed
in the agreement, that is to say, that they would

be stet down for hearing and determination. My learned
friend, in putting matters to Your Honour as to both convenience and practicality and otherwise arising from what is contained in clause 3 of
the agreement has, of course, only put one side
of it and the agreement was only based on one side,
that is to say, if we are unsuccessful in relation
to the attempt to have the Act declared invalid
then we will not proceed with an action which

solely concerns itself with areas of sea. But
if we are successful, that is to say won, we
would not go back to trial and go through all what
might be a very lengthy hearing confined to what,
in overall terms in this particular case, are
relatively smaller geographical areas.

But, of course, we hope and intend that we

will not be unsuccessful. We have got 10 grounds
and we seek to be successful in all 10 of them
so that we will be going ahead, so that we will
overturn this Act on land, on sea and in every
other way and so that we will go forward to trial
without the bar that apparently is there and that purports on its face at least to bar us in relation to the whole of our claim, and is
pleaded in relation to the whole of our claim.
It is not being pleaded in the action, in the

paragraphs that call in aid the 1985 Act, "Well,
this is an Act that bars you in relation to
land but we do not claim that it bars you in
relationtothesea". So thatitis all very well
and we accept what my learned friend said about
the scenario, of course, of if we do not succeed.
But we do seek to succeed and we seek to succeed
on land and sea and if we can succeed on land and
sea then we will have established that we can go
ahead in the actionuntrarnmelled by-this legislation.

(Continued on page 42)

C3T30/l/MB	41	17/2/88
Mabo(6)

MR CASTAN (continuing):

My learned friend's submission

would have more force if the legislation itself
did not purport to operate in relation to the sea.
It might then become an academic matter, or if it
had been pleaded in the relevant paragraphs 4(a) ahd
and 13(a) and so on that pleaded the 1985 Act,
that "this is a bar in relation to the land.", one
could understand what he has been putting, but it is not that simple. And so the academic exercise
he speaks of is only academic because he says,
"Well, if they lose, they will not be proceeding".
But we seek to win and we seek to succeed and this
is one of the grounds on which we seek to succeed,
so that it is not an academic exercise, it is an
exercise in which we call in aid all of the
arguments we have got to show that across the whole
spectrum this Act does not bar us and if it does not
bar us and if we are right in that, we will be

proceeding in all respects. The misconception,
if I can put it that way, or the misexpression of
the position is that we have not abandoned in
relation to the sea, that is not at all the

position. If the action goes ahead we will be
proceeding, if we can succeed, and, of course, what
my learned friend says pre-empts or assumes the
bases on which we might be successful in relation
to land. It is not possible to predict that we
will be successful in a way or under an argument
that only operates in relation to land. It may
be that an argument we put is a sufficient ar3ument of
itself to override the statute in relation to our
clients or it may be that it is only sufficient
to override in relation to land. It depends which
of the various grounds, 1 to 8, or 1 to 10 are
the successful ones, and we cannot predict that in
advance.
So that there is an assumption inherent in

what my learned friends says. It would have been a

very -so far as we are concerned at least, and I know my learned friend says to him that this was of minor significance, but to us it is of great
significance,the fact that we were not asked,and
we would say we would not have acceded to a
proposition that we should, in addition to agreeing
not to proceed if we are unsuccessful in relation
to land, we are also asked to abandon as part of
our grounds two of the critical grounds that operate.
(Continued on page 43)

C3T31/l/SR	42	17/2/88
Mabo(6)

MR CASTAN (continuing): My learned friend then says but
this may take an enormous amount of time o~ it
may raise all sorts of questions about the SEAS
AND SUBMERGED LANDS ACT. I should make it clear
that in the correspondence we have made it clear
that for ourselves we certainly will not be
challenging the SEAS AND SUBMERGED LANDS case and
the hint or the suggestion that .that be implicit
in what we are doing should be put to an end.
We have made it quite explicitly clear in one of
the letters there, dated 10 June last year, that then
we are asked we will not be. We will be relying
on the SEAS AND SUBMERGED LANDS ACT case. We are
not seeking to reopen it and it is hard to imagine
that other parties would be seeking to do so in
the circumstances and, presumably, my learned friend
the Solicitor-General would not be seeking to do
so.

So that, as we see it, this is not some

academic exercise, it is critical to the grounds
that we are seeking to proceed upon. It can be
presented as such if one takes the one-sided view
that, "Well, here is the scenario when you lose."
but - - -

HIS HONOUR:

Can I put this to you, Mr Castan, just perhaps

to test what you are saying? If, for instance, when the matter came before the Full Court, the Court decided that it would stand over the questions
raised by paragraphs 9 and 10 in the demurrer until
it had heard argument on paragraphs 1 to 8; it
heard argument and, I am now trying to pick up
the language of the agreement, in respect of the
issues raised by paragraphs 1 to 8 the Court held
that the 1985 statute was a valid law of Queensland,
operative and having effect in relation to the
land areas cla.:i.rred by the plaintiffs; would there
be any issues left to argue in respect of

paragraphs 9 and 10?

MR CASTAN:

If they determined it that way, no, there would

not because - there would be issues left to argue
in the demurrer and it would be clear from the
agreement that in those circumstances we would
not be proceeding further.

HIS HONOUR:

In practical terms there would be nothing left

to argue.

MR CASTAN:

In practical terms it would be clear that if

they had decided that in those terms arising from
those grounds we would not be proceeding but that
assumes that particular result is reached

HIS HONOUR:

Let us assume the other result is reached, that

the Act is held not to be a valid law of Queensland.

C3T32/l/ND	43	17/1/88
Mabo(6)

MR CAST.AN: The basis on which it is so held and the extent to
which it is so held may vary depending on which of
the grounds. There may be a different result in
relation to land and sea.

HIS HONOUR: Yes. But you would then want to keep open your
right to argue that as a matter of construction -
although the question of construction would not arise,
would it?

MR CASTAN: Well, it depends what basis it was held to be
ineffectual or invalid. It may be held valid that,
in effect, in relation to certain or all of the claimed
interests. It depends on the basis. One cannot assume
in advance with ten grounds or the other eight grounds

which of those bases would be the result. Now, one
can conceive and it would be a matter for my learned
friend, I would say with respect at the time, to put
to the Full Court that the question of whether or not
or when those grounds should be argued should be
deferred until argument has been received so that the
Court_may, having heard the whole of the arguments on
1 to 8 - I do not mean having determined the issue but,
at least, having hear the argument - may say, "Well, it
is clear to us now that, having had the full scope of
the argument, that we should do this or that". I can
understand that and that is a matter for my friend to
put, we would respectfully submit, to the Full Court
that they should, rather than let each party run through-
grounds 1 to 10, they should let each party do grounds
1 to 8 and then consider having the further grounds
then separately put in the same hearing or decide, then,
to defer. That is entirely a matter - if my learned
friend seeks to put that to the Full Court, no doubt
he can put it as a preliminary point or at some point

in the course of argument. It may suit him to put it -
I can say for ourselves, our arguments under grounds 9
and 10 will be very short in time, very short, indeed.

So, in terms of time, I would be submitting to the

Court that at the very least, they should hear our
arguments and then determine what they will do with those others or find out what others seek to say or
what scope there is in the argument because it may
depend. If nobody wants to re-open the SEA.SAND
SUBMERGED LANDS ACT case, which I suspect is almost
inevitably going to be the position, the concerns
that my learned friend raises are entirely unfounded.
Now, I would respectfully submit that, having reached a point where an agreement was reached of
this kind, we should not be put in a position where
now, some four weeks before the hearing, it is suggested
that two of our grounds which are seen by us as vital -
grounds are shut out before the Court has had the
opportunity to consider the scope and detail of the
argument.

C3T33/l/SH 44 17/2/88
Mabo(6)

J:1R CASTAN (continuing): In our respectful submission, this

is a matter - what my learned friend is doing is
putting to Your Honour a matter which in truth
should be put and should only be put to the Court.
This demurrer has been set down by order of
Your Honour, as it turned out after some discussion
as to the correct procedure with all parties

present, it has been ordered to be set down. And,
in our respectful submission, if there is some
argument to be put that the Court should either
defer or put off or perhaps on one view, I think,
exclude us from arguing it at all, it should only be put to the Full Court before whom the demurrer has been set down.

HIS HONOUR:

Yes, thank you, Mr Castan.

Mr Davies, I do not

know whether you wish to be heard on this matter?

J:1R DAVIES:

No, Your Honour, we do not, except that perhaps

I should say that my instructions are, because
I was not involved in the di.scussions which took
place in April, that my instructions are that the
spirit of the agreement from the understanding
on our side was as our learned friend the
Solicitor-General for the Conrrnonwealth had put to
Your Honour.

HIS HONOUR:

Yes, thank you.

Mr Solicitor, do you want to say

anything by way of reply?

J:1R GRIFFITH:

I want to indicate and I think it is

clear enough, Your Honour, that we intend not to
shut out the plaintiffs but merely to postpone to
an appropriate time if it becomes appropriate.

HIS HONOUR:

It is clear, of course, that I ca:rm.ot and vJOuld not seek

to tie the hands of the Full Court when this

matter comes on for hearing in March and in
that sense, if I acceded to the application, the matter still remains one ultimately for decision

by the Full Court. If I do not accede to it, of course it is entirely open to the Solicitor-General
to raise the matter again before the Full Court.
It seems to me that I ought to proceed on the basis
that again it would be inappropriate to seek to
construe, as it were, the meaning and operation
of the agreement that was read into the transcript.
Saying that, I am conscious of the other passages
tn the transcript to which I was referred.
(Continued on page 46

C3T34/l/SR	45	17/2/88
Mabo(6)

HIS HONOUR (continuing): But, I think, the only satisfactory
approach which I can take at this stage, the
demurrer having been set down for hearing and
to be heard within a few weeks, is to leave the
demurrer in the form in which it presently stands.
It would then be open for the Commonwealth to
renew its application before the Court and for
the Court to accede to it, to reject it, to
reserve the question until perhaps it had heard
argument on issues relating to the land areas,
but all in all it seems to me that the proper
course for me to take is to leave the demurrer

in the form ·in which it was agreed by the parties
in April last year and which appears to raise
all issues of a legal nature which the parties
wish to have heard, at least in relation to
the meaning and scope of the 1985 Queensland statute.
Are there any other matters that counsel

wish to raise?

MR GRIFFITH: Your Honour,could I mention one matter?

HIS HONOUR: Yes.

MR GRIFFITH: Your Honour, I touched upon it in my submissions.
We would seek Your Honour to give a direction
that any party which was desiring to attack
the SEAS AND SUBMERGED LANDS ACT case should
give notice to the other parties at least 14 days
before the hearing.

HIS HONOUR: At least 14 - - -

MR GRIFFITH: 14 days, yes. We have heard an indication
from our learned friend, Mr Castan, but we would
like to know, Your Honour, whether there is
going to be an application to reconsider or not.

HIS HONOUR:

Do you have any objection to a direction in those terms, Mr Castan?

MR CASTAN: None whatsoever, Your Honour.

HIS HONOUR: I do not know whether you want to be heard
on that matter, Mr Davies.

MR DAVIES: No, Your Honour.

HIS HONOUR:
Well, then I will give a direction in the
terms sought by the Solicitor that any parties
seeking to attack the validity of the
SEAS AND SUBMERGED LANDS ACT is to give notice
to that effect to the other parties not less
than 14 days before the hearing of this action
of the demurrer.

C3T35/l/AC 17/2/88

Mabo(6) 46
I wonder, in view of the various matters
that we have canvassed during the course of
the afternoon whether, although I have made
orders that have responded to the various
applications made and although I am not overly
anxious to create work for myself that is
unnecessary, whether I ought not to publish some
brief reasons, as it were, set the scene
so that when the matter comes before the
Full Court at least there is some sort of synopsis
of what has happened in the course of this hearing
and the last hearing. That, in the end, must
be a matter for me but if anyone seeks to positively
encourage or discourage me I would be happy
to hear from them.

(Continued on page 4?)

C3T35/2/AC 47 17/2/88
Mabo(6)

MR DAVIES:

We would seek to encourage Your Honour to

do that.

HIS HONOUR:

Thank you, Mr Davies, nobody else seemed to wish to do so. Very well, I will think about that. Just

one other matter: mile all counsel are together
and on the assumption that the matter is to proceed
in respect of all issues raised by the demurrer,

can counsel tell me either now or after a brief

discussion between themselves as to the likely

time the hearing of the demurrer will take?

If you need a moment or two to speak to each other

take it, please.

Mr Castan, I think you can

speak for all counsel.

MR CASTAN:

The estimate is thought to be three days,

Your Honour. Could I mention, before we rise, Your Honour mentioned in relation to the 14 days
notice that my learned friend, the Solicitor-General,
sought in relation to SEAS AND SUBMERGED LANDS case
I think Your Honour, in reciting the order said
SEAS AND SUBMERGED LANDS validity in effect of

SEAS AND SUBMERGED LANDS ACT. I think my learned
friend was referring to the case.

HIS HONOUR:

Yes, he was. Yes, thank you for that

correction. Are there any other matters? If not
the Court will now adjourn.

AT 4.05 PM THE MATTER WAS ADJOURNED SINE DIE

C3T36/l/MB	48	17/2/88
Mabo(6)

Key Legal Topics

Areas of Law

Native Title
Constitutional Law
Property Law

Legal Concepts

Jurisdiction
Standing
Appeal
Procedural Fairness

Actions

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Citations

Mabo & Ors v The State of Queensland [1988] HCATrans 9

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HIS HONOUR:	Mr Castan.
MR A.R. CASTAN, QC:	May it please Your Honour, I appear

HIS HONOUR:	Mr Bennett.
MR D.M.J. BENNETT, QC:	May it please Your Honour, I seek

HIS HONOUR:	I take it they are all the documents - - -
MR CASTAN:	That is what we sent.

we om, what	we understood the purpose and effect
of the demurrer was.	For the ten reasons in the

precision.	You tell us precisely how you formulate
the claim.	What are these rights that you claim

see what is the scope of the claim made.	What is
the full - - -

HIS HONOUR:	Yes, I do.
MR DAVIES:	Section J(a), Your Honour, says that:

second is its construction.	On neither of those
questions can facts at all be relevant.	So no

MR DAVIES:	The plaintiffs' claim the seas and seabeds.
HIS HONOUR:	Yes, I should have read on but is that just a

HIS HONOUR:	Yes, I see that.
MR GRIFFITH:	Your Honour, the course of hearings in this Court

but for the plaintiff to act as it may be advised if	is for it not to be ordered as a matter of precaution
it feels that it is in its interest to have it available.
Your Honour, we cannot see ourselves how it is relevant
other than it may be as my learned friend, Mr Davies,
referred to Your Honour, to page 4 of the transcript, that the plaintiff has an ambition here to ventilate arguments on the basis equivalent to the claim itself
being argued out in its full.
Now, there is a hint of that there, Your Honour. I am not sure exactly what is meant but we would think
that Mr Davies has made a valid point of distinction
between - and I think we mentioned ourselves on the last occasion - a demurrer to a defence and a demurrer
to a statement of claim but, Your Honour, the general

case.	That question will one day have to be decided
by this Court.	We have no particular view to put as

application here on two bases.	One is, Your Honour,
dealing not with the question of what is on

letter.	A letter in those terms was also sent
to the plaintiffs' solicitor.	Your Honour, we

party in the litigation elsewhere.	We did not
appear before Mr Justice Moynihan when things	~
got of~ the ra~ls there.	We have at.tempted, Your Honour,

very -so far as we are concerned at least, and I	know my learned friend says to him that this was	of minor significance, but to us it is of great
significance,the fact that we were not asked,and
we would say we would not have acceded to a
proposition that we should, in addition to agreeing not to proceed if we are unsuccessful in relation to land, we are also asked to abandon as part of
our grounds two of the critical grounds that operate.

present, it has been ordered to be set down.	And,
in our respectful submission, if there is some

by the Full Court. If I do not accede to it, of	course it is entirely open to the Solicitor-General
to raise the matter again before the Full Court. It seems to me that I ought to proceed on the basis that again it would be inappropriate to seek to construe, as it were, the meaning and operation of the agreement that was read into the transcript.
Saying that, I am conscious of the other passages
tn the transcript to which I was referred.

MR GRIFFITH:	Your Honour,could I mention one matter?
HIS HONOUR:	Yes.
MR GRIFFITH:	Your Honour, I touched upon it in my submissions.

HIS HONOUR:	Do you have any objection to a direction in those terms, Mr Castan?
MR CASTAN:	None whatsoever, Your Honour.
HIS HONOUR:	I do not know whether you want to be heard

[1988] HCATrans 9

Key Legal Topics

Areas of Law

Native Title

Constitutional Law

Property Law

Legal Concepts

Jurisdiction

Standing

Appeal

Procedural Fairness

MR DAVIES:	No, Your Honour.
HIS HONOUR:	Well, then I will give a direction in the terms sought by the Solicitor that any parties seeking to attack the validity of the
SEAS AND SUBMERGED LANDS ACT is to give notice
to that effect to the other parties not less than 14 days before the hearing of this action of the demurrer.
C3T35/l/AC	17/2/88
Mabo(6)	46