Mabo & Ors v The State of Queensland

[1991] HCATrans 85

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane	No B12 of 1982
B e t w e e n -
EDDIE MABO, 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

Defendant

Directions hearing

MASON CJ

(In ChamberQ)

Mabo(9) 1 20/3/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 20 MARCH 1991, AT 11.10 AM

Copyright in the High Court of Australia

MR R.A. CASTAN, QC: May it please Your Honour, I appear with

my learned friend, MR B.A. KEON-COHEN, for the

plaintiffs. (instructed by the Aboriginal Legal

Service of Western Australia

MR G.L. DAVIES, QC, Solicitor-General for the State of

Queensland:  May it please Your Honour, I appear

with my learned friend, MR G. KOPPENOL, for the

defendants. (instructed by the Crown Solicitor for

Queensland)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth

of Australia:  May it please Your Honour, I appear

with my learned friend, MS S. KENNY, intervening

for the Attorney-General of the Commonwealth.

(instructed by the Australian Government Solicitor)

MR CASTAN: 

Your Honour, there have been some exchanges in

writing between the parties but this morning we
reached a point where there are some draft

questions that have been agreed between us as
drafts which might be the subject of questions

posed for the Full Court, perhaps, pursuant to

section 18.  I could hand Your Honour a copy of

that draft, if that is convenient.

HIS HONOUR: 

Thank you.

MR CASTAN: 

I am not sure if Your Honour has seen other

documents that had passed of which copies had been

sent to the registry but this represents the - - -

HIS HONOUR:  I have seen other documents, yes, Mr Castan.

Do I take it this is agreed to by the Solicitor- General for Queensland and the Solicitor-General for the Commonwealth?

MR DAVIES: Yes, Your Honour.

MR CASTAN:  What we have endeavoured to do, Your Honour, is

to pose merely the ultimate questions. There are

obviously in this case a series of issues or questions that one could pose as the issues which	lead to - which will provide the answers to the
ultimate questions as suggested here. We had, as
Your Honour would be aware from the earlier
documents, suggested that it would be convenient to
pose those intermediate questions but have agreed
that we are content to have what might be called
those ultimate questions posed in this way, it being understood that, of course, we would in the course of our submissions to the Court take the
Court to each of the separate areas of argument.

HIS HONOUR:  I think you will have the opportunity of doing

that earlier, Mr Castan, in the form of

comprehensive written submissions.

Mabo(9)	2	20/3/91
MR CASTAN:	Yes.	We have also discussed that and after

Your Honour has an opportunity to peruse these, I

can perhaps address Your Honour on that question of

the preparation for hearing.

HIS HONOUR:  So it is now confined to the plaintiffs Passi

and Rice, as a result of the findings made by

Mr Justice Moynihan?

MR CASTAN:  Yes, Your Honour.

HIS HONOUR: It looks deceptively simple.

MR CASTAN:  Deceptively so, Your Honour. So far as concerns

the other matters that have been the subject of

exchange, we have provided some information in the

course of correspondence to our learned friends

which apparently has assisted them. They asked

for - - -

HIS HONOUR:  Is that in their request for particulars, so to

speak?

MR CASTAN:  Yes, there was the first draft of that, and in

response to that we forwarded some detailed
response that answered some of the matters raised.

We can indicate, Your Honour, that what we have

agreed is that we will provide, within a relatively

short time, and we have agreed that we will be

providing a document which summarizes the incidents

or elements of the rights and that that will be

exchanged as framed in terms of the judgment or determination of His Honour Mr Justice Moynihan.

So that we have given it a focus specifically to

the findings that are.now to hand.	So that was the
first - - -

HIS HONOUR:	Within what time limit are you going to provide those particulars?
MR CASTAN:	We thought perhaps 14 days for that,

YQur Honour.

HIS HONOUR:	How does that appeal to the Solicitor-General for Queensland and the Commonwealth?
MR DAVIES:	Your Honour, we would prefer it earlier, if it

could be seven days, but if my learned friend

cannot do it before then, then -

HIS HONOUR:  Do you think you could do it within seven

days? After all, this is part of your heart and

sole, is it not? You ought to carry round in

indelible ink in your memory what the elements of

the rights are, Mr Castan.

Mabo(9)	20/3/91
MR CASTAN:	Some of those involved may carry it round in

that form, Your Honour. It nevertheless requires

to be translated into -

HIS HONOUR:  Like the man who is under sentence of death

tomorrow, perhaps seven days would concentrate the

mind wonderfully.

MR CASTAN:  The mind is subject to that concentration,

Your Honour. If it is thought that seven days

is - we are content with that.

HIS HONOUR:  Yes, I think seven days; I think you should

furnish within seven days of today the particulars

that you have undertaken to furnish to the State of

Queensland and the Commonwealth of Australia.

MR DAVIES:  Your Honour, could I just understand clearly

what they are. As I understand it - I think we are

at one on this - - -

HIS HONOUR:	You had better ask Mr Castan, not me.
MR DAVIES:	I understand that, Your Honour, but they are, as

I understand it, the particulars of the elements of

the right or interest referred to in paragraph l(b)

of the document before the Court; of the elements

of the right and interest referred to in

paragraph 2(b) of the document before the Court; of

the elements of the fiduciary duty referred to in

3(b)(i) and of the elements of the rights or

interest protected thereby in 3(b)(ii), is that

correct?

HIS HONOUR: Agreed, Mr Castan?

MR CASTAN:  That is what we have in mind, yes. The other

matter which we discussed, Your Honour, was the

question of the way in which the outline of

submissions might be exchanged between the parties

or the form of the argument, and we have been

hqving some discussion as to the timing of that.

w~:had suggested - and I think we have reached some

agreement on this - the end of April.

HIS HONOUR: That is for your - - -

MR CASTAN:	That is for our version or our outline.
HIS HONOUR:	By the way, I had in mind comprehensive written

submissions rather than an outline of submission of
the kind that is customarily presented in the

hearing of appeals and constitutional questions in

the High Court. Now, the reason why I want

comprehensive submissions is this: despite the

deceptively simple statement of the questions,

there is the possibility that this case will take

Mabo(9) 4 20/3/91

longer in argument than it should take unless the

Court has the advantage of comprehensive written submissions.

MR CASTAN: Yes, Your Honour. There are, in truth - and one

can define it in different ways - but perhaps six

or seven separate issues to be argued, depending on

how one defines them.

HIS HONOUR:	Yes.
MR CASTAN:	And given the nature of what Your Honour is

expressing - would Your Honour excuse me - what I

had in mind was that Your Honour's indication of

comprehensive written submissions is obviously a

task of a somewhat more greater order than what we

had been talking about earlier, though some - I do
not know if Your Honour would recollect, but in the

course of the demurrer proceedings in 1988 some

aspects of what might well be argued in this

hearing will be covered.

HIS HONOUR:	I would not doubt that for one minute.
MR CASTAN:	So some aspects can be done shortly - - -
HIS HONOUR:	As cases last over a period of time the

ingenuity and the consideration given to the case

by counsel often results in arguments of a

different kind being presented and I have no doubt

that is what will happen here.

MR CASTAN:  Yes, Your Honour. Would Your Honour excuse me a

moment?

HIS HONOUR:  Yes. While Mr Castan is in conference, so to

speak, can I ask you, Mr Solicitor, how long you

expect the hearing will take?

MR DAVIES:  We are very much in the hands of our learned friend, Mr Castan, in that respect. I am sure that

o~r argument would be shorter than his but - - -

HIS HONOUR:  Yes, I would not doubt that either, but that

does not help me much.

MR DAVIES:  No. I really cannot help Your Honour.

HIS HONOUR: What about you, Mr Solicitor for the

Commonwealth?

MR GRIFFITH:  Your Honour, we will be subsidiary to

Queensland so if they are less, we will be lesser.

Your Honour, it does depend very much, so far as we

are concerned, on the crystallization of the issues

resulting from these comprehensive written

Mabo(9) 5 20/3/91

submissions. Perhaps I can mention timing after my

friend mentions his timing.

HIS HONOUR:	Yes, Mr Castan.
MR CASTAN:	Your Honour, we would respectfully submit that

the end of April would be the appropriate date for
those written submissions to be submitted on our

part.

HIS HONOUR:	Have you any comment about that?
MR CASTAN:	That would split it broadly half and half,

giving us the benefit of an extra week - -

HIS HONOUR:  As you probably know, the Court has it in mind

to fix 28 to 31 May as the date for hearing.

MR CASTAN:  Yes, and I know Your Honour was just having a

discussion about the question of time. That, of

course, does depend on the function that the

written submissions play. One is conscious of the

way it is done in the United States where one gets

half an hour after written submissions.

Ordinarily, Your Honour, I would frankly say that

it could not be done in four days.

HIS HONOUR: That is the reason why I am imposing

comprehensive written submissions.

MR CASTAN:  Yes, I am conscious of that, Your Honour.

HIS HONOUR: Another reason why I am doing that, Mr Castan,

is there is at the end of one of the documents I

saw, a document emanating from Mr Davies' side, a

suggestion - and r·am not indicating that I place

any reliance on it at all - that some action might

be taken that would render this litigation of no

value. When I say of no value, in other words the

plaintiffs, it is suggested, might receive

appropriate protection by other means. Now, as I say, I am not taking any notice of that except to

conceivably be a possibility that dates fixed by	the extent that it does indicate that there might
the Court would be vacated and that being so, I am
certainly not prepared to allow more than four days.

MR CASTAN: All I can say about that, Your Honour, is that

we place no store on that whatsoever.

HIS HONOUR:  I suspected that would be your attitude but for

my part I cannot quite treat the prospect as

ephemeral as you treat it.

MR CASTAN:  Yes, Your Honour. I think I should properly

respond to Your Honour by saying that we have

Mabo(9) 6 20/3/91

genuine concerns, or a genuine hesitation that the

four days will not be adequate, notwithstanding

that we go forward by way of written submissions

and I say that because I do not want to give an

unrealistic estimate and one would contemplate,

Your Honour, that there could be a great deal of exchange and a great deal of the argument will

consist of exchange with members of the Bench and
that considerable time might be taken up in

exploring matters that one or other of Your Honours

wish to explore. That is one of those very

unpredictable elements in the equation in terms of

trying to -

HIS HONOUR:  You are no better able to predict that than I

am, Mr Castan.

MR CAST.AN: Quite, Your Honour, but I anticipate - one does

make judgments about particular cases and what kind

of responses they may elicit and it is because we

have endeavoured to make that kind of a judgment

that I say that we have serious reservations about

saying it is a four day case when it may well take

longer. Initially I had been going to indicate,

prior to Your Honour's indication about written

submissions, that we thought that we could take

three days for our presentation, given that - - -

HIS HONOUR:	You may take only one day.
MR CAST.AN:	But we may take only one, it may take much

longer, and it partially depends on the degree to which it is necessary to go to the determination,

apart from the legal argument.

Your Honour, we had not specifically discussed the timing of the submissions by way of response to

our submissions and no doubt Your Honour will

explore that.

HIS HONOUR:  I was going to fix a precise date for the

filing and serving of your comprehensive
su~missions.	30 April is a Tuesday. Are you

prepared to make it the previous Friday, the 26th? That gives you more than four weeks. It gives you

four weeks and two days to be precise, Mr Castan.

MR CAST.AN:  Yes, Your Honour.

HIS HONOUR:  Very well. I order that the plaintiffs file

and serve comprehensive written submissions on or

before Friday, 26 April.

Now we will hear, Mr Castan, from the

Solicitors-General and see what they have to say.

Mabo(9) 7 20/3/91

MR DAVIES: Your Honour, could I mention two matters: one

is the matter that Your Honour mentioned about what

might happen with respect to vacation of the dates.

Can I simply mention that the Queensland Government
does have a commitment to land rights legislation

and to bring in land rights legislation this year.

I cannot say how soon it will be brought in but

work has commenced on it already. Obviously if it

is brought in it could well affect the proceedings

in this case.

HIS HONOUR:  Governments generally do not act within the

space of two months though, Mr Davies.

MR DAVIES:  The process has started, Your Honour, that is

all I am saying.	Can I just mention one other
matter which has not completely been resolved.	It
also arises out of the particulars we requested. One of those matters has been resolved in the way
in which Your Honour heard and the order

Your Honour made that further particulars be given.

The other has not, and it really arose out of the

last paragraph of our request for particulars which

Your Honour may recall said that if the plaintiff

intended to establish any of the matters referred

to by relying on evidence rather than in addition

to findings, that the plaintiffs should identify

the evidence and if it goes outside the finding,

should say what those findings are. That has not

been done. Whether in fact it will be done in our

learned friend's written submissions is really uncertain in our minds. But unless it is done,

Your Honour, we may have to come back.	I simply
indicate - - -

HIS HONOUR:  I can take that up with Mr Castan in due

course. When I say in due course, after I have

heard from you and the Solicitor.

MR DAVIES: Yes. Your Honour, there is nothing else really

that I wish to submit to Your Honour except - - -

HIS HONOUR:	What about a date for your submissions?
MR DAVIES:	We would have great difficulty, in our

respectful submission, in giving them very much

before the scheduled date for hearing if our

learned friend is not giving them to us until

26 April.

HIS HONOUR:  But you could do it on or before the previous Friday, could you not?

MR DAVIES: Yes, Your Honour, I could do it on or before the

previous Friday.

Mabo(9)	20/3/91
HIS HONOUR:	I do not know whether ~.r Castan heard that.

The Solicitor-General for Queensland has indicated

that he would not be able to have his submissi8~s

filed and served before the Friday preceding t~e

hearing on the 28th. That would be four days

before the 28th; Friday, 24th.

MR CASTAN:  In our respectful submission, given that it -~

the full written submissions, that is very late,

Your Honour, given the framework of what is

contemplated and given that we are supplying by the

date Your Honour has indicated.

HIS HONOUR: If I fixed the Wednesday, that would give yo~

six days.	I think that ought to be sufficient,
Mr Castan.

MR CASTAN:	Yes, Your Honour.
HIS HONOUR:	Now Mr Solicitor for the Commonwealth, subject to anything that you may say, I propose to fix
the preceding Wednesday which would be the 22nd.
MR GRIFFITH:	Your Honour, can I mention another matter,

that is -

HIS HONOUR:  Certainly. You do not want to contest that?

MR GRIFFITH:	I do, Your Honour, but can I mention the other matter first to say why.
HIS HONOUR:	Yes.

MR GRIFFITH: Obviously new section 78B notices will be

required to be served on the States to define the

issues. Now, we suppose, Your Honour, that for

parties who have not been involved in this long-

running litigation, starting from, say, the time of

possible parties receipt of the notice, to really

make any sense of consideration of intervention one

could not start before receiving the comprehensive

written submissions which, themselves, would

outline the constitutional points where possibly

the States, and also the Commonwealth now it is not

a party to the litigation, would desire to

intervene.

HIS HONOUR:  But what has happened to the Solicitors-General

Union? Are not the Solicitors-General aware of

this litigation?

MR GRIFFITH: This litigation, all they know is that it

commenced in 1982 or whatever and it has been -

MR CAST.AN:  They got notices in 1988.

Mabo(9) 9 20/3/91

MR GRIFFITH:  Your Honour, it is a question of how it is now

being put that is involved. We suppose that it

would be necessary to reactivate section 78 and

say, well this is now how it is being put, and give

notice to the States. Your Honour, the States will

then have to consider their response and one would

suppose that on some of these issues there may well

be interest in the States, not just the

inconsistency issues. I do not know, Your Honour.

HIS HONOUR:  Yes, I can imagine Western Australia might be

interested, for example.

MR GRIFFITH: Yes. I suppose in a way there are two unions

of Solicitors-General. In its State aspects, I am
not a member of the union, Your Honour, so that I

cannot speak for them.

HIS HONOUR:  But I notice that the Solicitor for Queensland has not said anything about this. One would have

expected him to be a little more concerned than you

are.

MR GRIFFITH:  I suppose in a way, having made that

observation, that is a matter to be attended to and

I will not speak for the States as to whether they say that they need elucidation of the issue to

consider their position in time to prepare their

responses which, obviously, the other States would

not have got to that point now.

Your Honour, it does seem to us that it is

pressing the pace somewhat, after all these years,

to require comprehensive written response by

24 April.

HIS HONOUR:  Even with the massive resources of the

Commonwealth behind you?

MR GRIFFITH: All I can say is they are myth, Your Honour.

But the point we would desire to make is it does

seem to us that having only this morning

crystallized these questions and being promised

these comprehensive written submissions by

26 April, our own view is, Your Honour, that the

case probably will not be argued, we would have

thought, by all parties with the efficiency that it might if it is put on for hearing on these proposed

dates. Now, that is our position, Your Honour. It

is Your Honour's decision whether to keep those

dates or not but we believe that that is a little

bit too quick.

HIS HONOUR:	I suppose, Mr Solicitor, one can only assess the validity of that comment of yours when one sees
the comprehensive written submissions.

Mabo(9) 10 20/3/91

MR GRIFFITH: That would be so, Your Honour. If we could

have a wait and see till then, that would be our

preferred position.

HIS HONOUR:  Yes, but I think what I shall do is order that

you file and serve your written submissions, along

with the comprehensive written submissions of the

State of Queensland, on or before Wednesday,

22 May.

MR GRIFFITH: If Your Honour pleases.

HIS HONOUR:  I would not want to leave it on any footing

that people could readily assume there would be any

vacation of the dates fixed for 28 to 31 May. Now,

it may be, of course, as in all litigation, that unforeseen circumstances might give rise to some postponement, but I think all parties should
proceed on the footing that as things presently

stand there is a firm commitment to a hearing on

28 May. Now, is there anything else?

MR GRIFFITH:	No, Your Honour.
HIS HONOUR:	Now, Mr Castan, there has been raised this

other question: challenges to the findings of fact

made by Mr Justice Moynihan. Are there any?

MR CASTAN:	No, Your Honour, and I think what my learned friend was adverting to was not that; I think what
he was adverting to was the question of whether we
will be referring to evidence that His Honour did
not explicitly refer to in terms, or incorporate by
saying "see transcript page so-and-so". As I
understand it, that is - - -
HIS HONOUR:	Now is that so, Mr Davies, that your concern is

with evidence not actually identified by

Mr Justice Moynihan?

MR DAVIES: If Your Honour has the draft order -

MR DAVIES: Yes. Not the questions, Your Honour; of a draft HIS HONOUR~: Yes, I have. This is your version? of an order.

HIS HONOUR:  No, the draft order, paragraphs 1 to 4.

MR DAVIES: Yes, Your Honour. If Your Honour looks first of

all at 1, our learned friend has answered that by

saying they do not intend to dispute any of the
findings of fact of Mr Justice Moynihan. But the

question I was adverting to was question 4 at the

bottom and that is a question which our learned

friends really have not answered or have not

answered specifically.

Mabo(9)	11	20/3/91
HIS HONOUR:	Yes, I follow that now.	Yes, Mr Castan, what

do you say about that?

MR CASTAN:  In the course of oral submissions we would

ordinarily, if it became necessary or relevant or

in response to a question, go to a particular item
of evidence, so long as it was relevant to the

finding.

HIS HONOUR:	How many volumes of evidence are there?
MR CASTAN:	The transcript, Your Honour?
HIS HONOUR:	How many?

MR GRIFFITH: At least 4000, Your Honour.

HIS HONOUR:  Four thousand pages.

MR CASTAN: Very substantial, Your Honour, but if there were

some point that arose and it were necessary to turn

to a particular passage of transcript to elucidate

something that is referred to it by His Honour,

well we would seek to do so. If one is doing it by

way of comprehensive written submissions, then by

definition one has to do precisely that in so far

as one can without response to questions from the

Bench in those submissions.

HIS HONOUR:  I think that is all Mr Solicitor for Queensland

is referring to. He is not seeking to estop you,

if you are asked a question from the Bench, from

referring to a passage in the transcript that you

have not particularized, but he does expect that in

so far as you are relying on evidence in support of

the points in your comprehensive outline of

submissions that you will identify the evidence

on which you are proposing to rely.

MR CASTAN:  Yes, Your Honour, and we had resisted our

learned friend's invitation to item 4 because we

had assumed the case was going forward in what we

might call the conventional way with submissions

coming orally and we wanted to be able to refer to

whatever emerges, if it arises, which is impossible

to say in advance. But if we are doing it by way

of comprehensive written submissions, that means

everything we want to say we have to put in
writing, so to speak, then by definition we have to

include the bits that we want to refer to in

addition to or rather than, is the way it is put

and we will do so.

HIS HONOUR:  Is that satisfactory from your point of view,

Mr Solicitor?

Mabo(9) 12 20/3/91

MR DAVIES: It certainly is until I see the written

submissions, Your Honour.

HIS HONOUR:  What do you mean by (b) in paragraph 4:

state how he says he is entitled to rely on

it.

MR DAVIES:  One would have thought - we would have thought,

Your Honour, that the plaintiff would have been entitled to rely only upon the findings which

Mr Justice Moynihan made and if the plaintiff says

he is entitled to rely upon some fact which

Mr Justice Moynihan has not found as a fact, then

we would want him to say how he says he can rely

upon that fact, in the absence of a finding by

Mr Justice Moynihan.

MR CASTAN:  Can I just indicate to Your Honour that if there

be - and one can hypothesize - but in some of the

findings there has been comprehensive discussion of

some issues and His Honour has said, and in

addition the same applies to the area at Dei-Mei.

But His Honour does not then say, see transcript

reference so-and-so and so-and-so; see the maps;

there is a whole body of evidence relating to the

Dei-Mei area but His Honour has incorporated it

into a general favourable finding, if I can use

that broad term. But he has not then condescended

to the precise details of all the evidence that

backs up the Dei-Mei claim. If we come to it - and

I am not sure that it will be necessary to discuss

it all - we would seek to say, "Here is the map and

here is the diagram and here is what Mr Rice said

about Dei-Mei and this is why it is part of it and

it has all been accepted by His Honour." When

His Honour wants to say that you do not succeed

about something, he is very explicit and says "You

lose" on that.

HIS HONOUR:  Anyhow, you understand that you will identify

th~ evidence on which you rely in your

comprehensive outline of submissions and I think

that is sufficient for present purposes.

MR CASTAN:  Yes, Your Honour, we will do that.

HIS HONOUR: Apart from the orders I have indicated that I

am making I do not think it is necessary to do

anything else except, perhaps, reserve liberty to

apply on this summons in case something eventuates

in the future, following either the delivery of

particulars or the delivery of your comprehensive

outline of submissions.

Therefore there is liberty to all parties to

apply on, say, two days notice.

Mabo(9) 13 20/3/91

Is there any other order required?

MR CASTAN: 

I am not sure whether it is necessary or even

customary to deal with costs on this kind of an
application, Your Honour, but in so far as it might

become relevant, perhaps some order should reserve

the costs of - - -

HIS HONOUR: Costs in the proceedings.

MR CASTAN:  Be costs in the proceedings might be more

appropriate.

HIS HONOUR:  Are you happy with that?

MR DAVIES: Yes, Your Honour.

HIS HONOUR:	Are you happy with that, Mr Solicitor?
MR GRIFFITH:	We are only an intervener at the moment,

Your Honour.

HIS HONOUR:  Yes, but your status in terms of costs may

depend on other proceedings.

MR GRIFFITH:  Your Honour, we have no interest in costs at

the moment, we say our position is.

HIS HONOUR:  At the moment. Very well, there will be costs

in the proceedings.

MR CASTAN:  Your Honour, I am not sure if Your Honour needs

to formally pronounce, if the question was raised,

whether Your Honour is ordering that questions be

stated in terms of section 18 or whether the order

needs to formally embody - - -

HIS HONOUR:  Yes, I would state the questions pursuant to section 18 for the determination of the Full Court.

MR CASTAN: If Your Honour pleases.

HIS HONOURi: Court will now adjourn.

AT 11.43 AM THE MATTER WAS ADJOURNED SINE DIE

Mabo(9) 14 20/3/91