Mabo & Ors v The State of Queensland

[1989] HCATrans 96

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bl2 of 1982

B e t w e e n -

EDDIE MABO and JAMES RICE (who

bring this action on their own
behalf and on behalf of their

respective family groups)

Plaintiffs

and

THE STATE OF QUEENSLAND and

THE COMMONWEALTH OF AUSTRALIA

Defendants

Application to vary remitter

order

TOOHEY J

Mabo(8)

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 MAY 1989, AT 10. 14 AM

Copyright in the High Court of Australia

C3Tl/l/RB 1 3/5/89

MR. B.A. KEON-COHEN: . May it please Your Honour, I appear

with my learned friend, MR G.M.G. McINTYRE, for

the plaintiffs. (instructed by the Aboriginal

Legal Service of Western Australia)

MRS M.J. WHITE:  May it please Your Honour, I appear with

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

first-named defendant, the State of Queensland.

(instructed by the Crown Solicitor for Queensland)

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

If Your Honour pleases, I appear with MR D.J. ROSE

and MR J.A. LOGAN for the Commonwealth of Australia,

second defendant. (instructed by the Australian

Government Solicitor)

Your Honour, the plaintiffs have served

on us a notice that the application be made this

morning but it seemed to us, Your Honour, in

a real sense the application is ours, the primary

application. It is a matter for Your Honour

to decide order but, in effect, we were the moving

party yesterday, Your Honour, before

Justice Moynihan.

HIS HONOUR:  Do you have an application, that is, in written

form?

MR GRIFFITH:  No, Your Honour, we just apply under the

liberty to apply reserved by the order of remitter

by His Honour the Chief Justice.

HIS HONOUR:  Then what would you be seeking under that

liberty to apply provision?

MR GRIFFITH:  Your Honour, we seek to pick up the matters

covered by the ruling that Justice Moynihan made

in the transcript. I think Your Honour has a

copy of that transcrip~ pages 675, 676, 677,

678, Your Honour. And, firstly, Your Honour,

we understand that is really a matter by agreement

between the parties that an order should be made

making it clear that Justice Moynihan has power

to make orders in respect of amendments to the

pleadings.

(Continued on page 3)

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Mabo(8)

MR KEON-COHEN: Well, Your Honour, I apologize for interrupting.

. May I be heard on this?

HIS HONOUR:  Well, in a moment you may, Mr Keon-Cohen. What

precisely did Justice Moynihan order?

MR GRIFFITH:  Your Honour, he ordered nothing because he took

the view it was necessary to apply to this Court, for the

order of His Honour th: Chief Justice remitti:nf the

matter for finding of facts to be varied, aL least,
to give him power to make amendments for the pleadings

before he could validly order amendments of the pleadings.

Secondly, Your Honour, he indicated that it would seem

necessary - - -

HIS HONOUR: Sorry, could I just interrupt you there? Initially

it was the plaintiffs who were seeking further

amendments to their statement of claim, was it not?

MR GRIFFITH: Several times, Your Honour. There was one amendment

ordered in 1970.

HIS HONOUR:  No, I mean on the last occasion the matter was

before the Supreme Court of Queensland.

MR GRIFFITH: Yesterday, yes, Your Honour.

HIS HONOUR:	That was opposed by the Commonwealth.
MR GRIFFITH:	Your Honour, we said the judge had no power to

order it.

HIS HONOUR:  Yes, and the consequence was that no order was

made in respect of any of the amendments sought by

the plaintiff.

MR GRIFFITH:  Yes. Your Honour, I think it could be said that

Justice Moynihan took the view that - if he had to rule

on the matter, which we take it he then did, he had

no power and he implicitly took the view that amendments

he previously ordered were of no effect.

HIS HONOUR: Well, from the Commonwealth's point of view, what is

it that you would be seeking to agitate before this

Court?

MR GRIFFITH:  Your Honour, we seek - it is subsumed in the

orders that we seek but we seek, at the very least,

an order that Justice Moynihan does have full power

to order amendments to the pleadings .

HIS HONOUR:  So do I take it then that the Commonwealth's

opposition to the amendments sought by the plaintiffs

was based solely upon absence of power?

MR GRIFFITH:  No, Your Honour. We also made long argument that

the proposed pleadings were bad in. form. It would be

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Mabo(8)

necessary to replead the entire statement of claim

and it seems clear from what His Honour

Mr Justice Moynihan said in his ruling that he would

accept that approach and would - - -

HIS HONOUR:  But taking a somewhat narrow and, perhaps, jaundiced

view of the matter, from the Cormnonwealth's point of

view, really, are you not content with the position

as it presently stands?

:MR. GRIFFITH:  No, Your Honour. Our primary application today

is that, in the circumstances, the order of His Honour

the Chief Justice remitting the matter of finding of

facts should be varied so that the whole matter is

remitted.

HIS HONOUR: Well, that is another question again.

:MR. GRIFFITH:	Yes.
HIS HONOUR:	But -perhaps, I misunderstood something - if the

Cormnonwealth was opposed to the amendments sought by

the plaintiffs and, as part of its argument, disputed
the power of the supreme court to make any orders by

way of amendment and, if that argument was accepted by Mr Justice Moynihan, at the moment, at any rate,

the Cormnonwealth is in the position it would wish to

be, is it not, namely, that the statement of claim

remains unamended?

:MR. GRIFFITH:  No, Your Honour. We want the issues, as pleaded,

to reflect. the matters truly in issue, So that we

were concerned that the proposed amendments were

:inappropriate form but in putting that point to

Justice Moynihan we had to make the point that it would seem that he presently did not have the power to make

orders ensuring that amendments in proper form were

made on appropriate terms.

(Continued on page 5)

C3T2/2/SH	4	3/5/89
Mabo(8)

HIS HONOUR:  So you.would be content, putting the matter

broadly, Mr Solicitor, if, by whatever means it was achieved, it was clear that Mr Justice Moynihan was

free to entertain applications to amend the pleadings

and dispose of those applications.

MR GRIFFITH:	Your Honour, we have the strong view it is not appropriate to agitate in this Court the matters that
we agitated yesterday in Brisbane.  We believe they
are for the trial judge.
HIS HONOUR:	Well, if that be the case, what - perhaps you

are not in a position to answer this, but what is the area of disagreement between the Commonwealth

and the plaintiffs?

MR GRIFFITH:  Your Honour, we say that the proposed pleading

is in such a turgid form that it does not constitute a

pleading appropriate to be - - -

HIS HONOUR:  Yes, I understand that, but the immediate question

seems to turn upon the presence or absence of power
in the Supreme Court of Queensland to entertain an

application to amend the pleadings.

MR GRIFFITH:  Your Honour, that is one of three issues. There

are three issues at the moment.

HIS HONOUR:	What are the other two?
MR GRIFFITH:	The second issue is that we say, Your Honour, it

has become clear that because a proceeding adopted

by the judge to find facts on the basis that he would

make no rulings on admissibility, but seek to make

alternative findings of fact on the basis of

alternative choices of admissibility, is completely

unworkable - - -

HIS HONOUR:  Is that a matter you are seeking to raise before

this Court?

MR GRIFFITH: Yes, I do, Your Honour.
HIS HONOUR:	And today?

MR GRIFFITH: Yes.

HIS HONOUR: Well, let us put that to one side for a moment.

If we can just stay with the question of possible

amendments to the pleadings. If the view of the
Commonwealth is that the Supreme Court of Queensland

should be able to entertain applications, presumably

from any party, to amend pleadings and dispose of
those applications, well then, is there not common

ground, at least to that extent,between you and the

plaintiffs.

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M.abo(8)

MR GRIFFITH: We believe there is, Your Honour. If that

was the only point, Your Honour, we could have a

consent order, as we understand the position, that -

I think we are all agreed it is appropriate that the Queensland court should be able to decide these issues of pleading, including parties.

HIS HONOUR: Well, let us just take it one step further.

If that were the view of the parties, and if an

order were made to that effect, I take it that,

at least from the Commonwealth's point of view,

this Court is not being asked to deal with the

merits of any application to amend pleading - - -

MR GRIFFITH:	No, Your Honour, we would not seek to do that
HIS HONOUR:	- - - that would be a matter for the

supreme court.

MR GRIFFITH:	No, we regard it as wholly inappropriate to to bother the Court with those issues.
HIS HONOUR:	Well then, there are other matters which are not apparent, on the papers at any rate, but you say one of them is the - when I say they are not
apparent on the papers, they are not before the Court in the form of an application.

MR GRIFFITH:  No. Your Honour, the problem is that the

plaintiff has produced its last proposed amended

statement of claim in the last week or two, Your Honour.

The matter was listed before Justice Moynihan to

commence yesterday and to run until the evidence was

complete, whether that be one, two, three, four months,

or until Christmas. The plaintiff, Your Honour,

sought orders yesterday, in effect to amend the

statement of claim, to add substantial new causes of

action, particularly against the second-named

defendant, to make substantial variations to the
pleadings, including particularly allegations against

the second defendant, and also, Your Honour, to

further those claims by giving, in the last week or

two, particulars of these claims, and also, Your Honour,

to seek general and ever wide-ranging orders for

discovery.

HIS HONOUR:	Yes, but they are matters that I need not be concerned with on the approach that you are putting
to me, which is that the supreme Court should be
empowered to deal with those matters.

MR GRIFFITH: Yes. Your Honour, could I explain, briefly,

although it cannot be too brief, why it is there is

this second problem about the question of finding of

fact?

HIS HONOUR: Well, before I invite you to do that, is that a

matter that stands quite independent of the question of

amendment to pleadings?

C3T3/2/FK	6	3/5/89
:Mabo(8)

MR GRIFFITH:	Your Honour, it does, and it does not, in that the amendments to the pleadings proposed
are so wide-ranging, in our submission, Your Honour,
any proposal to enable those amendments carries with it as a practical necessity the result that
at the very least the Judge who is to find the facts in relation to those amended pleadings
must have power to rule finally on admissiblity if he is to bring any order and to make any
relevant findings for the purpose of then considering issues of law.
HIS HONOUR:	But I cannot anticipate what Mr Justice Moynihan

might do. If, for instance, he rejected entirely

the current application by the plaintiffs to

amend the statement of claim, then any problems

regarding adrnissiblity of evidence and fact-finding

arising from those amendments have simply gone

by the board.

MR GRIFFITH:	Your Honour, the problem has already been exposed by the several weeks evidence in 1976
and the judge, in his ruling yesterday, indicated,
we would say, strongly a view, Your Honour,
that it is in a practical sense difficult to the
point that he could only as a matter of necessity
continue on the basis of not ruling if the High Court so ordered. But, Your Honour, we say the judge has made it clear that it is his view that he
can only proceed on the basis of ruling admissibility and we say, Your Honour, there is ample material
in what has happened so far in respect of the
evidence which has been. received to demonstrate
that that must be the case.
HIS HONOUR:	You may be right, or you may not be, but at

the moment I am trying to determine whether that
second question is so tied up with the first

that really I cannot dispose of the first question

without at least considering the second. I must

say nothing that has been said to date would

indicate that that is the position.

MR GRIFFITH:  Your Honour, there is a very strong case

of what has happened on the present pleadings

that it is necessary for the judge to have that

power and in a way the fact that these amendments

are proposed merely reinforces a very strong case.

HIS HONOUR: It would be curious, I think, for me to hear

argument as to the consequences for the case

generally of amendments that are proposed that

are sought·to be argued before Mr Justice Moynihan,

then it may be rejected by him. That would be

a time-consuming exercise that would not serve

a great deal of purpose.

C3T4/l/JM	7	3/5/89
Mabo(8)

MR GRIFFITH:  I was not intending to put it on that basis,

Your Honour. What I intended to put to Your Honour

is that this matter has already come before the

Court where these issues were exposed and led to the demurrer being set down in this Court and

there was long affidavit material before the Court
explaining the problem, explaining that the judge

had taken the view that the terms of the remitter

did not enable him to rule on admissibility.

The judge, Your Honour, yesterday, indicated a

very strong view that - - -

HIS HONOUR:  I am sorry, could I just take you back one

step? Are you saying that Mr Justice Moynihan

has taken the view that the terms of the remitter

preclude him from ruling on admissibility?

MR GRIFFITH:	Your Honour, he took that view, yes.
HIS HONOUR:	Took and takes?

MR GRIFFITH: Yes, Your Honour, but he believes that it is

not the appropriate course for him to act

efficiently, and he said so yesterday.

HIS HONOUR:  I do not want to lose sight of this first

question, but perhaps if you could just point

me in the direction of where that view is

expressed by His Honour.

MR GRIFFITH: It was expressed in the transcript, pages 635

to 637. Could I give Your Honour those pages?

HIS HONOUR:  Is that during the present hearing; or this

is the last hearing?

MR GRIFFITH: This is the previous hearing in 1986, I think,

Your Honour - 27 February 1987, I am told, Your Honour.

HIS HONOUR:  And that is about four paragraphs down page 635,

is it, the paragraph that begins; "I come, not

without reluctance"?

MR GRIFFITH: Yes, Your Honour. I am sorry, it is

23 February, I am told. There is not a date on

this transcript.

HIS HONOUR:  So, is His Honour taking the view that in effect

he is acting, as it were, as a commissioner to

receive and record whatever evidence is presented

to him?

MR GRIFFITH: It is very close to that, Your Honour, and

possibly at the end seek to say, "Well, if this evidence is admissible, I find these facts. If it is not admissible I find the facts are" -

something else.

C2T4/2/JM 8 3/5/89

Mabo(8) 
HIS HONOUR:  What I put a moment ago is clearly not correct, at

least in the long term because the matter that

is remitted to His Honour is a matter that

includes the findings of fact.

(Continued on page 10)

C2T4/3/JM	9	3/5/89
Mabo(8)
MR GRIFFITH:	Yes, Your Honour.	We would suppose the view

could be taken that His Honour, within the order

of remitter, certainly could rule on admissibility

and make findings of fact and, for our view,

Your Honour, that was what we contemplated when

we consented and it was a consent order for remitter

but the judge has ruled otherwise and the parties
are bound by his ruling and, it would seem the
appropriate resolution to the problem would be for

the Court to look at the circumstances that arise

if the judge feels he is obliged by the order and

resolve the matter by variation of the order to

enable him to do the sensible thing.

HIS HONOUR: Well, let us just put that second matter to one

side for a moment.	What is the third matter of which
you speak?

MR GRIFFITH:  Your Honour, the third matter will take me about

a quarter of an hour to explain but it is, for us, a

most important issue.

HIS HONOUR:	Could I have a paraphrase of it?
MR GRIFFITH:	The paraphrase, Your Honour, is that the case as now proposed to be pleaded is more complicated
than it was when it was remitted. At the time of
remission, it could be said that the reason for the
case to remain in the High Court at all was tenuous
but, because the Commonwealth was a party, there was
at least a jurisdiction in this Court and that it
could not, at that stage, be said to be inappropriate that only the finding of fact should be remitted,
rather than the hearing arrl determination of the
whole case.

The Commonwealth was a party, although very mueh.

a peripheral party at that stage, Your Honour, and

absent that it could have been said that there was no

jurisdiction in the High Court in the matter at all

but when one looks at the development of the pleadings,

including the proposed amendments, the particulars

that have been served and the manner in which the
plaintiff now seeks to proceed with what is, in effect,

a completely independent case on many grounds against

the Commonwealth in respect to areas of sea and land
external to Australia, the case proposed to be put

in the amended statement of claim is substantially a

different, far more extensive case and one where, when

one looks at the pleadings as they now are proposed to
be, involves so many complicated issues of fact and law
that the appropriate course is for the Court to enable
the judge to deal with that matter, to deal with all
issues as a trial judge, make relevant findings of
fact in relation to the issues of law which are

alleged in the pleadings and that for the matter

thereafter to be reviewed, either in the normal

C3T5/l/SH	10	3/5/89
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processes of appeal or by removal of particular

issues to this Court, as may be appropriate.

HIS HONOUR: Well, that is the conventional remitter of the

entire action.

MR GRIFFITH: Conventional, yes, Your Honour. Now, Your Honour - - -

HIS HONOUR:  Now, if that - and I do not really want you to

develop that at the moment, Mr Solicitor, because

that is taking us a long way from the application

that I understood I was to deal with but, if what

you seek in regard to that third matter came about,

then that would subsume the first of the questions.

MR GRIFFITH:  Yes, precisely, Your Honour, and that is why we

were seeking to get the third point because, to us,

that is a simple answer to the problems which have

arisen. The order for remitter should be varied to

remit the matter.

HIS HONOUR:  Yes, well, that is something that I will hear from

other counsel on but it might be thought to be an

interesting exercise of liberty to apply provision.

MR GRIFFITH: Well, Your Honour, there is no other way to do it,

in effect. It is only these developments that, really,

force one to face up to the issue which is, we would

say, demonstrably inappropriate - close, almost, to

impossibility - for the trial judge to discharge the

obligation absent for remitter.

HIS HONOUR: All right. Well, thank you for that. I think I

had better hear from other counsel for the moment,

Mr Solicitor.

MR GRIFFITH:	Yes.
HIS HONOUR:	Mr Keon-Cohen, do you think it is appropriate that

I hear from Mrs White in relation, at least, to the

first of the matters raised by the Solicitor-General

before I hear from you? (Continued on page 12)

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Mabo(8)

MR KEON-COHEN: It may be, Your Honour.

HIS HONOUR:  I do not want you to be shadow sparring. You may

as well know what is being put against you.

MR KEON-COHEN:	Yes, Your Honour.
HIS HONOUR:	Mrs White, I only want you to direct your attention

to the first of the matters raised by the Solicitor-General

which indeed is really the matter that is the subject of

the plaintiff's application.

MRS WHITE:  Yes, thank you, Your Honour. Your Honour, the

view that the State of Queensland takes in relation to

Mr Justice Moynihan, to deal with issues of amendment	the question of t:_he jurisdiction of the trial judge,
is substantially that which the Commonwealth has addressed
to Your Honour. Perhaps the State of Queensland's view
is that it is a little ambiguous in the terms of the
remitter whether Mr Justice Moynihan has that power or
not to make the amendments. In view of the fact that it
may be ambiguous, it ought to be clarified and he ought
to be given powers to make the amendment. It has certain1y
been our view in the course of the hearing to date that
it was expensive and onerous to the parties to have to
come back to a chamber Judge in the High Court every time a running amendment needed to be made and, indeed, the
way the hearing has been conducted so far has been, for
what might be regarded as relatively trivial amendments
to be made in the course of the proceedings, those not to be opposed by the State of Queensland and the Commonwealth
really did not participate in the hearing of the facts to
date to any great extent.

If it were a problem, and I raised this with my learned

friend, Mr Keen-Cohen, I think I am not misstating his

position, that we really at all times realize that there

may well be a problem about the issue of jurisdiction

to make amendments, but that we really ought to get on

with the job because these were not very large amendments

that were sought to be made. But, as the learned

Solicitor-General has said, the proposed new amendments

really raise the whole issue in a ITil.lCh greater fashion than has

occurred hitherto.

HIS HONOUR:  But that notwithstanding, I gather from what you say

that you are prepared to argue that matter before

Mr Justice Moynihan. That is, whether the present

foreshadowed amendments should be allowed or not.

MRS WHITE: Well, they really were not amendments, except with

respect to the joinder of parties, that concern the
State of Queensland in any great regard at all, except,
of course, in relation to the allegations of breach

of fiduciary obligation made against both the Commonwealth

and the State of Queensland.	But certainly it is a new
cause of action.

12

C3T6/l/VH KEON-COHEN 3/5/89

Mabo(8) 
HIS HONOUR:  Yes, but my question is, notwithstanding what

you say is the breadth of the proposed amendments, is

the State of Queensland content that Mr Justice Moynihan

should have power to deal with those applications?

MRS WHITE: Certainly, that is so, Your Honour. If it be

necessary to enlarge the remitter to give him those

powers, then certainly the State of Queensland would be

happy to do so.

HIS HONOUR: Well, to that extent, then, you and the Commonwealth

are on common ground?

MRS WHITE:  Yes, that is so.

HIS HONOUR:  Thank you. I will not invite you to speak on the

other two matters for the moment, Mrs White. Now,

Mr Keon-Cohen, what is left to argue about on the first

of these matters?

MR KEON-COHEN:  Having heard that, Your Honour, very little.

HIS HONOUR: If anything?

MR KEON-COHEN:  The only point I would make, Your Honour, is

this. Throughout the plaintiffs have taken the view that

the learned trial judge has had sufficient power. That is

reflected in the terms of the two orders we seek before

Your Honour this morning in the application which I have

drafted. I might say, Your Honour, that my understanding

of the proceedings yesterday was that this was an application,

the onus of which was upon the plaintiff, but that aside.

HIS HONOUR:  There is a real sense of deja vu about this

matter, Mr Keon-Cohen. Every time it comes before me,

it comes with a great sense of urgency and heat that

dissipates very quickly - perhaps not so quickly each time -

the parties end up in agreement.

MR KEON-COHEN: Well, happily so, Your Honour, but - - -

HIS HONOUR: Well, not entirely. Happily so from one point of

view but unhappily that the	agreement is not reached
before a battery of counsel	is assembled in the Court
at considerable expense.

MR KEON-COHEN:  I accept that, Your Honour. It is certainly

not our wish to bother Your Honour this morning. May I

say also the amendments complained of by my learned friends

have been before the learned trial judge on two prior

directions hearings in respect of the trust matter, and
a single prior directions hearing a month ago in respect

of the Commonwealth's concerns concerning particulars of

seas and allegations of impairment. Discussions have been

extensive around those problems. It is only in the last

couple of days that we are forced to this position. Now,

I ~egret _that. Your Honour. It is our concern to get on with the trial and it has always been our view that the learned trial judge has had sufficient power. The net result this rroming Your Honour is that

save for .that nistorical difference, we are in agreeTIEI1t. ' '

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Mabo(8)

HIS HONOUR:  So, I ought to be able to mak~ by consent, an

order that makes clear that Mr Justice Moynihan can,

in making findings of fact, deal with the pleadings

either i~ their present form or in such form as may

be amended by reason of any order that His Honour

makes.

MR KEON-COHEN:	Yes, Your Honour, and I would seek that the order pick up the notion that I have suggested
in our alternative order No 2.
HIS HONOUR:	I must say, I do not like order 1 very

much.

MR K.EON-COHEN:  Very well, Your Honour.

HIS HONOUR: For the reason that it invites a single Justice

of this Court to express a view as to the powers
of a single justice of the supreme court in a

matter that this Court hasremitted in its

qualified form to the rupreme o::>urt.

MR KEON-COHEN:  Yes, it is not an appeal,Your Honour, it is

a proceeding seeking clarification. But Your
Honour, there have been a number of amendments

made since the remitter order. The ones particularly

concerning the learned Solicitor-General were made

at the opening of the trial in October 1986.

Thus, Your Honour, the orders I would seek should

embrace that retrospective notion. That is to say,

that the learned trial judge always has had power,

or if he has not always had power he should

retrospectively be granted that power.

So that there is no confusion about orders that

have, in fact, already been made. Your Honour, the

learned trial judge has made two sets of amendments

to the clear knowledge of the Cormnonwealth. The

first concerned a clarification, or amendment if you

like, of the claim by the plaintiffs to seas and

reefs offshore Murray Island. In particular, reef

areas beyond the three mile limit located ten miles

offshore in the Great Barrier Reef. Those matters

were faxed and advised to the learned Solicitor-General

the morning that those issues were debated before

Mr Justice Moynihan in February 1987 as matters of

admissibility of evidence and those matters were ordered

as amendments to the pleadings by the trial judge

at the cormnencement of the trial.

Now, secondly, Your Honour, at a directions

hearing in February, the learned trial judge, with

full notice to all parties, ordered amendments

C3T7/l/DR	14	3/5/89
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incorporating into the pleadings for the first time

causes of· action based on fiduciary duty and

trust, alleged against both defendants. The

Commonwealth was represented by counsel at that

hearing. Counsel, at that hearing, on my notes,

stated concerns about lack of particularity

going to impairment alleged in the pleadings,

stated no concerns about the question of power,

and then left the hearing early.

Then, Your Honour, we have had a subsequent

directions hearing a couple of weeks ago and the
recommencement of the trial yesterday and the

matter has blown up fiercely for the first time,

in my submission.

HIS HONOUR: Well, blown up it may have, but calm down it

seems to have this morning.

MR KEON-COHEN:	Well I am happy that it has calmed down, Your Honour, and I simply indicate that history
in order to clarify the fact that the learned
trial judge has already ordered those two sets
of amendments.
HIS HONOUR:	It ought to be possible, Mr Keon-Cohen, within

the next few minutes, either on your feet or

perhaps, preferably, giving counsel the opportunity

to confer, to agree upon a form of order that

makes clear that what has been remitted to the

Supreme Court of Queensland is not only issues
of fact raised by the pleadings, taking that to
mean the pleadings as they stood at the time of

the remitter, but the pleadings as they have been

amended and as they may be amended.

MR KEON-COHEN:  Yes, Your Honour, as they may develop through

the process of this, admittedly, difficult hearing.

HIS HONOUR:  To that extent there seems to be common ground

between the parties.

MR KEON-COHEN: Yes, Your Honour, I believe so.
HIS HONOUR:	Now, I am not inviting you to reply on points

2 and 3 raised on behalf of the Commonwealth. But

are those matters which, in your submission, it is
appropriate for this Court to deal with this

morning?

MR KEON-COHEN: Those, in my submission, are the only matters

which this Court should deal with this morning.

That is, the question of the judge's power. That

was the only matter that the learned trial judge
ruled on yesterday, although my learned friend,

the Solicitor-General - - -

C3T7/2/DR	· 15	3/5/89
Mabo(8)
HIS HONOUR:	You may have misunderstood my question.	Perhaps

there was a negative in it somewhere, but what I

was asking you is, without developing any answer,

do you say that it is appropriate for this Court

to deal with the second and third questions

raised on behalf of the Commonwealth, and to deal

with those matters this morning?

MR KEON-COHEN:  No, Your Honour.

(Continued on page 17)

C3T7/3/DR	16	3/5/89
:Mabo (8)

HIS HONOUR:  I think .your answer rather conveyed the

opposite.

MR KEON-COHEN:  Yes, Your Honour.

HIS HONOUR:  I will deal with that matter later. Then,

what should I do, simply adjourn for a few minutes
while I see whether a consent order - - -

MR KEON-COHEN:  I hear from the learned Solicitor-General

that we are not completely in agreement with

the suggested order Your Honour has indicated.

HIS HONOUR:  I have not really suggested any particular

form of order.

MR KEON-COHEN:  No. Perhaps the learned Solicitor-General can

assist us.

HIS HONOUR:	Mr Solicitor.
MR GRIFFITH:	Your Honour, can I indicate the problem area In, I think it was, October 1986, as my learned
friend points out, in the absence of the Commonwealth,
an order was made to amend the statement of claim
to include references to the Barrier Reef,
particularly in paragraph (1).  The judge expressed
that to be a conditional order, Your Honour,
subject to the position of the Commonwealth being
raised with him as may be appropriate. On 17 April,
my understanding - I was not there but my learned
friend Mrs White tells me that the judge agreed that issues of the proposed amendments raised there, particularly to allege fiduciary duties
andbreach of trust, should be adjourned over
until yesterday.
HIS HONOUR:	But that is not a problem, is it, because

all that is envisaged by the sort of order I

have in,,mind was that the question of power

was clarified?

MR GRIFFITH:  Your Honour, I am addressing myself -

the paragraph (2) of the application seeks to give effect to purported orders made to date. We submit, Your Honour, that the appropriate

order should merely be to say that from the making

of the order today the judge has power to make

amendments and leave it to the judge to sort
out what is the appropriate form of the orders

to be made, not to pick up the one and a half

purported orders that he has already made.	My
learned friend referred to an order made
17 April in respect of fiduciary duties,
Your Honour. That amendment that he raised
t~en	is now subject to a further repleading

by his proposed amendment to very particularly

C3T8/1 /ND·	17	KEON-COHEN	3/5/89
Mabo(8)

substantiate the nature of the allegations against

the Commonwealth.

So we submit, Your Honour, that the appropriate

thing is merely to order that as from now the
judge could make relevant orders in respect of

the pleadings and not to pick up any purported

orders already made. That can be sorted out

by the judge.

HIS HONOUR:  Are there amendments that have been made,

whether they affect the Commonwealth or not,

that have been made quite unconditionally?

MR KEON-COHEN: 

Yes, Your Honour, there have been, those

being the amendments to incorporate the fidu~iary
duty and trust cause of action against both defendants.

That, Your Honour, was done at a directions hearing

in February on full notice to all parties.

HIS HONOUR: 

And are those amendments which affect the

Commonwealth or only the State of Queensland?

MR KEON-COHEN:	Both defendants, Your Honour.
HIS HONOUR:	Was there an appearance on behalf of the

Commonwealth?

MR KEON-COHEN:  There certainly was, Your Honour.

HIS HONOUR:  Was there objection taken by the Commonwealth

to any of those amendments?

MR KEON-COHEN:	That is the hearing, Your Honour, when no objection was taken and, indeed, counsel for
the Commonwealth left prior to that matter being
discussed.
HIS HONOUR:	Although you say - or do you say that the

summons for directions made it clear that those

amendments were to be sought?

MR KEON-COHEN:	Yes, Your Honour, there was a document which I drafted under cover of a letter forwarded
to both defendants giving notice of an application
to amend the pleadings in terms of a stated proposed
amended  pleadings that was received by all
parties and His Honour made an order precisely
in terms of that document.
HIS HONOUR:	Presumably not by consent by the Commonwealth

but in the absence of any objection by the Commonweath.

MR KEON-COHEN:  Indeed, Your Honour, and on full notice

and that was not conditional.

C3T8/2/ND 18 3/5/89

Mabo(8) 
HIS HONOUR:  And do you accept, Mr Keon-Cohen, that there

have been some amendments made to the statement

of claim by His Honour which are conditional?

MR KEON-COHEN:  Yes, I accept my learned friend's submission

that the amendments made in the statement of

claim during the early days of the trial were

conditional upon notice being given to the

Commonwealth and the trial judge hearing anything

the Commonwealth wished to say. Those amendments,

Your Honour, are contained in an exhibit SB and

are details of the claim to the reefs in the
Great Barrier Reef and associated waters that

I have mentioned before. They also incorporated, Your Honour, detailed amendments to the statement

of facts which are incorporated into the pleadings

by reference to four large volumes. Those

amendments, Your Honour, are contained in a three

page document which is labelled exhibit SB tendered

TB in the trial.

HIS HONOUR: 

I suppose, from your point of view, if I make

an order in the terms suggested by the Solicitor-
General, namely that the order operate from today,

there is no great problem if those orders are

simply made again but there is the possibility

that there could be some argument about that.

MR KEON-COHEN: 

Yes, Your Honour, and in my respectful

submission it ought not be open to the Commonwealth,

given the history I have outline~ to have that

second bite.	The trial has proceeded on the
basis - - -

HIS HONOUR:  We do not know that the Commonwealth would

seek to challenge those amendments.

MR KEON-COHEN:	No, we do not.
HIS HONOUR:	Let us say that, for a moment, the Commonwealth

said of those amendments that were made without

its objection and of which it had notice, "Well,

we're, colloquially, saddled with those amendments

and we don't wish to do anything about them.",

and that was on record, then that really puts

those to one side, does it not?

MR KEON-COHEN;	Yes, Your Honour.
HIS HONOUR:	That would then leave other amendments that

have been granted conditionally, where presumably

you are prepared to take a chance on being able

to persuade the trial judge that those amendments

should be made unconditional.

C3T9 / 3/ND .	19	3/5/89
Mabo(8)

MR KEON-COHEN:  Yes, Your Honour, I accept that position.

The amendments were made conditionally and my

learned friend is quite able and proper in

agitating that issue. He is simply agitating

it, in my submission, a little late but that

is a matter for the trial judge.

HIS HONOUR: 

But if there was some sort of undertaking

given in respect of the amendments which you
say were not disputed, then an order that spoke

from today remitting to the supreme court, not

only the matters presently remmitted but the

power to amend the pleadings, would give you
what you seek, would it not?

MR KEON-COHEN: 

Yes, it would, Your Honour, subject to

us then being exposed to argument from the

Commonwealth seeking to strike out those fiduciary

and trust amendments which it had previously

had notice of and had not objected to.

HIS HONOUR:	I am not sure what you mean by "strike out".
MR KEON-COHEN:	Exposed to the Commonwealth arguing before

the trial judge that the amendments he has already

made concerning trust and fiduciary duty, of

which the Commonwealth had notice, should now

not be made.

HIS HONOUR:  No, but I thought what I put to you was this,

that if there was some undertaking from the

Commonwealth that it would not challenge the

competency of the amendments that were made and

as to which it raised no argumen 4 then the only

amendments left are those that were made

conditionally and those that are about to be

made, both of which, I think, could be picked

up by an order that spoke only from today.

MR KEON-COHEN:  Yes, I apologize, Your Honour, I

misunderstood.

HIS HONOUR: If the Commonwealth is not prepared to give

that undertaking then there is a difficulty in

the form that the order should take.

MR KEON-COHEN:	Yes, Your Honour, thank you.
HIS HONOUR:	Mr Solicitor?
MR GRIFFITH:	Your Honour, we do not want to be difficult

about this. It does seem to us, Your Honour, that on the basis of argument yesterday where the plaintiff raised some 15 pages of its statement

of claim of its 27 page statement of claim where

it wanted to add substantial amendments in

C3T9/4/ND	20	KEON-COHEN	3/5/89
Mabo(8)

pleadings against, particularly, the second

defendant, that, Your Honour, it would be

necessary for the judge considering that

application to look closely at the statement

of claim as a whole, the several allegations made

against the first defendant and the second
defendan~ and take a view as to the adequacy
of the pleading which is now proposed to be the

complete case of the plaintiffs.

The Commonwealth, Your Honour, is content

to leave it to the judge to consider those issues
on the basis that he has been the judge in control

of the matter to date and we believe he should

have complete powers, Your Honour, to deal with

issues concerning the pleadings, having regard

to all things which have occurred before him

since he first became seized on the matter.

HIS HONOUR:  Yes, but that does not really meet the point

of the plaintiffs, does it? Mr Keon-Cohen says

there were amendments made a year or more ago,

longer than that, which were the subject of notice
to the Commonwealth which the Commonwealth chose

not to challenge, orders by way of amendment

were accordingly made and have never been disputed

since. All he seeks to do is to avoid a situation
in which those amendments made and apparently

accepted by the parties are now the subject of

some further argument.

(Continued on page 22)

C3T9 I 5/ND ·	21	3/5/89
Mabo(8)

MR GRIFFITH:  Your Honour, if I could correct the date.

The order was 23 February 1989.

HIS HONOUR:  I beg your pardon, I must have misunderstood

that.

MR GRIFFITH:  Yes, Your Honour. Now, Your Honour, the

particular claims, Your Honour, were pleaded in a

document headed, "Statement of Claim as Amended

May 1989" and sought to add - I hand Your Honour that

document. There are two such documents. To be sure

Your Honour has the right one, can I hand Your Honour

the first one open at paragraph 3l(a).

There is another document, Your Honour, which might have a variation, particularly in the

paragraph 3l(d).

HIS HONOUR:  As far as I can see, the document I have is the

same.

MR GRIFFITH: It looks the same for the first 15 pages, that is

the trouble.

HIS HONOUR: Well, what I have is a document that is headed

"Statement of Claim as Amended May 1989" - - -

MR GRIFFITH:  The problem is, Your Honour, there are two of

them. One which was produced on or before

23 February, which is the one that I have handed to
your associate, and that, Your Honour, is a document

which has been superseded in its last 15 pages by

a document produced by fax to us on 27 April, raising

new and substantial allegations against the second

defendant.

HIS HONOUR: That may be answered by the fact that I have a

quite lengthy document headed "Statement of Claim

as Amended May 1989", and a collection of papers

starting at page 15 and running to page 29, which

someone has noted in the top right-hand corner,

"May 89".

MR GRIFFITH: That would be the second version, Your Honour. But, Your Honour has the first version, which must

the one I handed the associate together; the other

15 pages Your Honour has in your right hand would

be those produced by fax 27 April.

HIS HONOUR: 

But is it right that this is not accurately

described as "Statement of Claim as Amended May 1989"
but rather "Statement of Claim as sought to be

amended"?

MR GRIFFITH: Your Honour, the order made on 17 April, Your

Honour, in respect of these matters of fiduciary

obligation were as per the document,Your Honour has

the complete one,headed "Statement of Claim as Amended

May 1989. Now, Your Honour - - -

22

C3Tl0/l/FK	3/5/89
HIS HONOUR:	When were those amendments made?

MR KEON~COHEN: That is not right. With respect they were

made on the directions hearing on 23 February 1989.

They were made in terms of a document headed,

"Proposed Amendments to the Statement of Claim",

forwarded to all parties. The paragraph3my learned

friend now refers Your Honour to is the same

paragraphs that appeared in that document ordered

by His Honour incorporated into the statement of

claim.

MR GRIFFITH:	Your Eoncur, I accept that.
MR KEON-COHEN:	Your Honour, the document we are now talking

about, in effect, is a document headed "Statement
of Claim as Amended May 1989", which was explained

to the trial judge yesterday did not assume anything,

but was forwarded as an efficient exercise in typing

and retyping in the hope that orders would be achieved

in that form.

HIS HONOUR:  But, I am to take it then, Mr Keon-Cohen, that

the lengthy document headed "Statement of Claim

as Amended May 1989" contains amendments which had

not yet been ordered by the court?

MR KEON-COHEN:  Yes, Your Honour. Can I - - -

HIS HONOUR:  Are those the ones that have had three underlinings?

MR KEON-COHEN: Yes, Your Honour, and if Your Honour could

go to page 22, you will see a paragraph 32A with

three underlinings, and then - - -

HIS HONOUR:	Page 22?
MR KEON-COHEN:	22.
HIS HONOUR:	No, I do not.

MR KEON-COHEN:  Well then, can I hand Your Honour - - -

HIS HONOUR: Just a moment. Is this part of the declaratory

relief?

MR KEON-COHEN:  No, Your Honour, it is the completion of the

pleading, and it is paragraph 32A. I am not sure

who has provided that document, Your Honour, but it

might assist if I hand you - - -

HIS HONOUR:  No, do not hand me anything for the moment,

Mr Keon-Cohen, I am confused enough without anything

further. Yes, well the 32A appears in that loose

collection of papers.

MR KEON-COHEN:  Now, that loose collection of papers is a set which I

faxed to the Solicitor-General a week ago indicating the last

amendments that we sought to make to the entire writ.

C3Tl0/2/FK	23	3/5/89
Mabo(8)

MR K.EON-COHEN (continuing):  I did not fax the whole of the statemen

of claim because that would have doubled the

faxing exercise. So that what Your Honour now has

is a statement of claim of 29 pages plus annexures

which incorporates paragraphs l ta 33 and several

paragraphs of prayer for relief. That is the

document which incorporates three, I beg your pardon,

four sets of amendments.

HIS HONOUR: Including amendments made on 23 February 1989.

MR K.EON-COHEN:  Yes, Your Honour. Those are the fiduciary

duty and trust amendments and those amendments

appear at paragraph 31A beginning at page 20.

Your Honour will see that they are underlined

three times and the 31A,B,C,D and E constitute

the amendments - - -

HIS HONOUR:	I am sorry, 31A on which page?
MR KEON-COHEN:	On page 20.

HIS HONOUR:  But that is in the loose papers. 31A in the

lengthy document is page 19 in the copy I have.

MR KEON-COHEN:  I am sorry Your Honour. The consolidated

document, which incorporates the up to date

amendments proposed is the initial 14 pages plus

the additional loose pages, pages 15 through to

29.

HIS HONOUR: Well what is the status of pages 15 and

subsequent in the consolidated document?

MR KEON-COHEN: Yes, Your Honour, may I take you to that.

The status is that the material which is underlined

once or not underlined at all is of no consequence,

since that was made prior to the remitter. Those
were amendments made prior to the remitter order of

the then Chief Justice. Then, Your Honour, moving

to page 16, Your Honour will see there para 22,

there are particulars	indicated which have
double underlining - they	also are of no concern
Then Your Honour will proceed to paragraph 25 at	since they are made prior to the remitter order.
page 18.

Your Honour will see at paragraph 25 a passage

containing triple underlining.

HIS HONOUR:	No, I do not.
MR KEON-COHEN:	Well then Your Honour does not have the right

document. I beg your pardon and it may be as well if I hand to Your Honour the document we seek - - -

C3Tll / 1 /DR.	24	3/5/89
Mabo(8)
HIS HONOUR:	WelL let me be clear about this.	I have got two

"Statement of Claim as Amended May 1989 11 • documents: one a lengthy document headed

MR KEON-COHEN:	Yes, Your Honour.
HIS HONOUR:	I have a collection of papers with no heading running from pages 15 to 29 with the note in the
top right-hand corner "May 1989".  Now that
answers the description you just gave me. In
other words, if I go to paragraph 25 in those
sheets I find that there is single underlining and there is triple underlining.
MR KEON-COHEN:	Yes .. Your Honour, I understand what has

occurred. The lengthy document you have is a

statement of claim as amended May 1989 - if you

like,version No.l - that incorporates amendments

going to· trust and fiduciary duty and a

second set of amendments whereby we seek to

reintroduce to the action two plaintiffs who

were originally there and then discontinued and
who now instruct that they wish to re-enter.

Those two sets of amendments only are in that document. Then, Your Honour, added to that

is another set of amendments which are contained

in the loose documents. Those loose documents

appear to be copies of material I faxed to the

Solicitor-General a week or so ago. Those

documents incorporate, substantively, the third

substantive set of amendments we wish to make

alleging particulars of seas and reefs we claim and

for the first time alleging substantive impairment

by the Commonwealth of our claimed rights.

HIS HONOUR: W~ll,if I were to look for the amendments made

on 23 February 1989, do I find those identified

in either of the two documents we are speaking of?

(Continued on page 26)

C3Tll/2/DR	25	3/5/89
Mabo(8)

MR KEON-COHEN:  You will, Your Honour, and may I take

. Your Honour,· in the lengthy document that you have, which is the first version, to page 19 at

paragraph 31A.

HIS HONOUR:  So, from there to - - -

MR KEON-COHEN: Paragraph 31E, on page 20. Your Honour will

see the exact paragraphs which the learned trial

judge ordered:

On notice to all parties and without objection

by the Cormnonwealth on 23 February 1989.

HIS HONOUR:  Now, is that the extent of the amendments ordered

on 23 February?

MR KEON-COHEN:  Yes, Your Honour. In addition to that, the

whole document contains the amendments ordered in

October 1986 in the running of the trial.

HIS HONOUR: Well, then, the fact that something has three

lines under i4 as do paragraphs 31A to 31E, does not

necessarily indicate that they are amendments made

on 23 February 1989.

MR KEON-COHEN:	No, Your Honour.
HIS HONOUR:	For instance, if you look at page 22, there is a -

part of the prayer for relief is a BX.

MR KEON-COHEN:  Yes, Your Honour, and those are amendments which we would seek to be made in that form.

HIS HONOUR: All right.

MR KEON-COHEN:  And that particular prayer for relief goes to

allegations of impairment by the Commonwealth of our

claimed rights and those are matters which - - -

HIS HONOUR: Well, then, it is only paragraphs 31A to 31E in

the consolidated document which you say were made
by Mr Justice Moynihan on notice and to the

Commonwealth and without objection and which you

wish to avoid having to argue again before His Honour.

MR KEON-COHEN:	Yes, Your Honour.
HIS HONOUR:	Otherwise, you are content to take your chance on

arguing the proposed amendments and the amendments

that were granted conditionally.

MR KEON-COHEN:  Yes, Your Honour.

HIS HONOUR: Well, at least I understand that. Now,

Mr Solicitor, in regard to paragraphs31A to 31E

C3Tl2/l/ SH·	26	3/5/89
Mabo(8)

as amended on 23 February 1989, is there any

reason why the Commonwealth should now be heard

to argue against those amendments?

MR GRIFFITH:	Yes, Your Honour.
HIS HONOUR:	The reason being?
MR GRIFFITH:	Yes. Firstly, Your Honour, the status of these

amendments as in the large document is incomplete.
My instructions are, Your Honour, the order made by

Justice Moynihan of 23 February was that a

statement of claim, as amended, should be delivered

by 10 March 1989.	No such amended statement of
claim was delivered.

HIS HONOUR: But, presumably that could only be a statement of

claim reflecting the amendments made.

MR GRIFFITH:  Yes, Your Honour, but what we had instead were

these - first, this large document and then the faxed

pages, 15 and following from 27 April. Now - - -

HIS HONOUR:  When saying that, Mr Solicitor, are you saying

that you had not received, since 23 February 1989, a

statement of claim reflecting the amendments made up

to and including 23 February?

MR GRIFFITH:  No, Your Honour. We have only received this

document, the large document.

HIS HONOUR:  Is there any reason to question that paragraphs

31A to 31E as they appear in the composite document

are (1,), accurate and (2), complete?

MR GRIFFITH:	Your Honour, there is a reason to question whether they should be regarded as remaining there because the
plaintiff, in its second documents, desires to plead
something different.  Can I take Your Honour to the
point I wish to make? Your Honour, paragraph 31A
on the large document, page 19, alleges·
very briefly that the parties, including the
Commonwealth, are i.mder a fiduciary duty. 31B said,
alternatively, parties including the Commonwealth,
were under duties of trust, Your Honour.

There is an allegation that the Commonwealth

as defendant was under an obligation, then, to preserve

and not impair rights of the plaintiffs and, in

paragraph 31D, Your Honour, there is an allegation that

the first-named defendant now threatens and intends to

breach and is now in breach of that fiduciary and

trust and 31E is a claim for damages.

Now, Your Honour, in respect of that amendment,

we took the view that there was no relevant pleading ~gainst us because, although duty was alleged, there

C3Tl2/2/SH	27	3/5/89
Mabo(8)

was no allegation of threat or intention to breach

and, indeed, we sought particulars, Your Honour, and

particulars were served saying that nothing was alleged.

Now, my learned friend has sought to resile from

that position in the second document which is the one

with pages 15 and following, paragraph 31D on page 20, still with the triple underlining, Your Honour, at the

bottom of page 20.

(Continued on page 29)

C3Tl2/3/SH 28 3/5/89

Mabo(8)
MR GRIFFITH (continuing): What is sought is a new allegation,

Your Honour, which we say completely alters the

nature of this amendment. It says, "The first-
named defendant and the second-named defendant now

threaten and intend to breach and/or each such

defendant is now in breach of its fiduciary duty

of trust." So it is not just an allegation against

Queensland, it is an allegation against us. And,

Your Honour, there are then references to

paragraph 32A which is a new pleading sought to be

brought in and a claim that the plaintiffs have

suffered loss and damage as against us.

And at the same time on 27 April, Your Honour,

we were served with amended particulars claiming

for the first time that the Co1IID1onwealth, by its

conduct, had breached these duties.

HIS HONOUR:  But is not that an argument that goes to the

amendments now sought to be made by the plaintiffs.

MR GRIFFITH: Well yes, Your Honour what we say is that

seeing the plaintiffs seek to reconstitute this
claim, in effect to bring us in for the first time,

the appropriate order is to just leave it to the

judge to sort it out. There is no need, Your Honour,

for this Court to deal finally with this issue of the

fiduciary trust allegation when the plaintiff, by

its own applications, is putting the whole thing up

in the air.

HIS HONOUR: Yes,but test it this way. Say, for instance, an

order was made in the terms that you suggest,

operating from today and making it clear that

the remitter included the power to amend pleadings

and the plaintiffs proceeded no further with the
amendments they are now proposing, would there
be ,till a question mark hanging over the amendments

that were allowed on 23 February?

MR GRIFFITH:  Probably only as a matter of form, Your Honour,

that the order of the judge for delivery of

the amended statement had not been complied with.

But we take the view, Your Honour, that that part

of the pleading really did not concern us as

it now stands.

HIS HONOUR:	Well that is my point. Why unsettle that?
MR GRIFFITH:	Your Honour, we are saying, Your Honour, that in the circumstances of the substantial repleading
constituted by this last document, the appropriate
matter complete power to make orders which seem course is to give the judge dealing with the
as appropriate as the trial judge.

29

C3Tl3/l/DR	3/5/89
Mabo(8)
HIS HONOUR:	And if that means that the amendments allowed

on 23 February are no longer allowed,then you

presumably say,well,that is a consequence of the

additional amendments sought by the plaintiffs.

MR GRIFFITH:  Your Honour, what we say is let the judge sort

it out. He has shown he can deal with these

issues in a sensible way, Your Honour, of course,

and that it is complicated by the plaintiffs'

pleading, repleading, faxing as recently as

27 April a new version bringing us in for the

first time, and what we say, Your Honour, is that

the trial judge should have power to do what is

appropriate.

HIS HONOUR:	So long as he does it from now on?
MR GRIFFITH:	Yes, Your Honour, bearing in mind what has happeredbeforehand so that on the face of things you would expect him to say, well I take the
view, at least, that the plaintiffs can plead
these fiduciary trust matters against the first
defendant.  The issue which now arises, are
they enabled to make amendments to plead them including these allegations of breach against
the second defendant,  I will determine that
issue.  We are happy to argue that before him,
Your Honour, and let him determine it.
HIS HONOUR:	Yes, I can see the force of that~ Ch the other hand, so far as the existing paragraphs
31A to 31E are concerned, if they touch only the first defendant and the first is content
that they remain - and I do not think I have
heard from Mrs White on that point - why should the Connnonwealth be troubled?

MR GRIFFITH:  Your Honour,that may be so. Our submission to

the trial judge, Your Honour, is that ina1smuch

as they Jec~de to make allegations in respect of

us they should be made in separate paragraphs.

We will submit to the judge that there should be

a separate paragraph 31E,F,G,H, against us so

we only plead to the one that concerns us.

HIS HONOUR:	But in that event you would not - there would be nothing to be gained from the Connnonwealth's
point of view in upsetting the order that was
made on 23 February.
MR GRIFFITH:	Your Honour, we are happy to leave it to the

trial judge.

C3Tl3/2/DR	30	3/5/89
Mabo(8)

HIS HONOUR: It is not quite an answer, is it?

MR GRIFFITH: Your Honour, I will answer it. Nothing could

be gained but the position is the plaintiff by

their successive calls for amendments and ever

widening claims has made it more and more difficult

to understand the pleading. We have to plead

a defence to it, Your Honour, and what we say

is that the trial judge should have full powers

to sort it out.

HIS HONOUR:  While you are on your feet, Mr Solicitor,

do you feel able to suggest to me the form of
order that should be made or if counsel need

a bit of time either to agree or to come up with

some suggested wording I will give you that time.

MR GRIFFITH:  Yes, Your Honour. Of course, our submission

that the matter should be remitted would cover

this without any detailed order.

HIS HONOUR:  That what matter be remitted? Well, that

has taken me to the third of your questions.

MR GRIFFITH:	Yes.
HIS HONOUR:	I do not really feel disposed to catch up

the first question in the second and third ones

at this stage. I do not see why the first matter

should not be resolved and whether I deal with

the second and third matters today is something

on which I have not yet heard from Mr Keon-Cohen

although he has indicated his opposition to that

course being taken. I think you can take it,

Mr Solicitor, that I propose to deal with the
first question, namely, the extent of the remitter

so far as it relates to the amendment of pleadings

and it would seem that the only real issue is

whether any order that is now made should speak

ro what has happened in the past or should speak

only as to the future.	And to the extent that
it speaks to the past it seems that we are focusing

on the amendments made on 23 February 1989, the

other amendments being conditional and therefore

not yet really made in any effective sense.

MR GRIFFITH:  That is so, Your Honour, yes.

HIS HONOUR:  Could I come back to my earlier question: would

you like to think about the form which an order
that meets your approach should take or do you

need time to think about that?

MR GRIFFITH:  Your Honour, perhaps if I could draft something

up while my learned friend is addressing you.

C3T14/l /ND	31	3/5/89
AIS(2)

HIS HONOUR: All right, thank you. Mrs White

MR KEON-COHEN:  I do apologize, Your Honour. May I just

say one thing, briefly, in response to the

Solicitor-General's last submission It· is true

Your Honour, that the latest version adds a new

element under paragraphs 31A to E, that is
to say incorporates reference to the second-named
defendant, and thus the Solicitor-General suggests

that the first version did not allege anything

against them or seek any relief against the

Commonwealth.

Your Honour, the first version did, in the sense that the prayer for relief sought declaratory

relief and sought that relief at ?rayer for relief

BX, BY and BZ. They appear at pages 22 and 23.

HIS HONOUR:	Are you speaking of the composite document?
MR KEON-COHEN:	I am speaking of the first version composite

document.

HIS HONOUR:  But that is a rather curious way of pleading,

Mr Keon-Cohen, is it not, to allege that the

first-named defendant is in breach of a fiduciary

duty, to make no such allegation against the

second defendant and then seek some sort of

declaratory relief?

MR KEON-COHEN:	That may be so, Your Honour, but my only defence as a pleader is that it i consistent
with the logic of the pleading ag nst the
Commonwealth throughout, since 1 -· That is
to say that the Commonwealth, at  w, had recognized
the alleged rights and thus ought not to impair
them except by lawful legislation and seeking
declaratory relief against the Commonwealth in
that respect.
HIS HONOUR:	You mean, without alleging any existing or

threatened conduct on the part of the Commonwealth,

nevertheless to obtain some declaration?

MR KEON-COHEN:  In that cause of action, Your Honour?

In the second cause of action concerning allegations

of denial of natural justice there were suggestions

of such denial, and again, seeking declaratory

relief but in the original form, Your Honour,

there was no allegation of substantive steps of impairment or allegations seeking damages

and the like. But, Your Honour, my point is

in terms of - - -

HIS HONOUR:  I am rather allowing you to go on by way of

response. I want to hear what Mrs White has

C3Tl4/ 2 /ND .	32	3/5/89
Mabo(8)

to say about the position of Queensland,

Mr Kean-Cohen.

MRS WHITE: Thank you, Your Honour.

HIS HONOUR: Really, two things, perhaps, Mrs White: one

is the form that a variation of the remitter

should take; in other words, should it speak

only as from today or should it catch up amendments

that have already been made; and, I suppose -

perhaps they are not two separate questions.

The other question is: these amendments that

were made to paragraphs 31 A to 31E, or rather

to introduce those paragraphs, I think, whether
the State of Queensland would seek to upset those

amendments if the matter were remitted to

Mr Justice Moynihan on an open-ended basis, as

it were.

MRS WHITE:  As Mr Solicitor wishes to do so. I can say

this, Your Honour, that as far as the State of

Queensland is concerned, we would prefer that

the order being in futuro rather than to the

past but could also say this and give this assurance;

that those amendments which were made in the course of the hearing would not be sought to be reopened by the State of Queensland.

(Continued on page 34)

C3Tl!l3/ND. 33 3/5/89

Mabo(8) 
HIS HONOUR:  When you say "in the course of the hearing",

are you referring specifically to 23 February 1989?

MRS WHITE:  No, I am referring prior to the 23rd; I wish

to deal with that separately, Your Honour, if I
might. There were consequential amendments to
the statement of facts that were also made,

variations of wording and so on which were of a

fairly trivial kind. The State of Queensland

would not seek to have those reviewed in any way

at all and that would be a formal order that

could be made by His Honour, which will take

five minutes at the most.

In relation, of course, the State of Queensland

has no view about the conditional order that was

made on 26 October in relation to the reefs claim. As to the order that was made on 23 February 1989,

my recollection is that my instructing solicitors

were faxed some single sheets of paper which

indicated that it was now proposed to introduce
a new cause of action in relation to the breach

of fiduciary duty and trust, and consequential

amendments to the prayer for relief, not the

whole document, and it was on the basis of those,

31A to E, that the matter was debated before

Mr Justice Moynihan on 23 February.

Now, as I recall, the view of the State of

Queensland was, so be it. These amendments are

sought against the State of Queensland and we

did not seek at that stage to have any further

particulars than those which we foreshadowed on

that day and those particulars were in fact

delivered on that day and were responded to by

the plaintiffs. The order of the judge was

that there be a delivered statement of claim

including those amendments which His Honour

ordered against the State of Queensland relating

to the fiduciary obligation, and they were to

be delivered by 10 March 1989.

Now, the problem that has arisen, Your Honour,

is that nothing happened; we got no further document

at all. Instead, sorre time during late April another

document was delivered which was different to

this extent,that two new plaintiffs were added,

so that some of the three-line underlining which

appears in the document that Your Honour has - - -

HIS HONOUR:	Are you speaking of the composite document?
MRS WHITE:	Yes, that refers to this second document that

was a new statement of claim; in other words,

it included two new plaintiffs and variations on

the claim. So that we were unable to plead our

new defence, because that really was not in the

C3T15/l/JM	34	3/5/89
Mabo(8)

terms of the amendment and the State of Queensland

joined issue with the joinder of those two new

plaintiffs. So that nothing further really was

done about that and it came on for hearing

before Mr Justice Moynihan on 17 April.

It is not the substance of the fiduciary issue that the State of Queensland joined issue

with; it was simply that we really had a different

document from that which we had agreed to and it

introduced two new plaintiffs. I hesitate to

introduce a new matter before Your Honour, but

that is still very much being contested by the

State of Queensland.

HIS HONOUR:  What is being contested?

MRS WHITE: That two new plaintiffs might be added.

That is a matter of fact, Your Honour, not

a matter for this Court, on any view of the

remitter and that will be dealt with by His Honour

when he next sits.

Perhaps I could say this then, that the

State of Queensland would wish it to be
in futuro but with the given undertaking that

we would not contest any amendments that had

either been made up to and including the 23rd

relating to the fiduciary duty and those amendments.

But we do contest any that might be made about the

joinder of the two further plaintiffs which we

got in response to the order of Mr Justice Moynihan

on the 23rd.

HIS HONOUR:  And which you say - I take it you are saying

was not aired before Mr Justice Moynihan?

MRS WHITE:  They were not aired before him on that date;

they were aired before him on 17 April, but

in fact I required a deponent for cross-examination

who was not available and so that was deferred
to 2 May.	So that issue, in fact, has not been

dealt with by him at all as yet.

HIS HONOUR:  I have not got the order of Mr Justice Moynihan

made on 23 February, but I am not clear whether

you are saying that the direction to file and

serve an amended statement of claim by a certain

date was a condition of the amendment, or whether

it was simply a further order.

MRS WHITE:  My own notes from the day, to the extent that they

can be relied on, were that leave to amend was

given and the date for the delivery of the statement

of claim as amended, pursuant to that leave to amend,

was to be 10 March 1989.

C3Tl5/2/JM	35	3/5/89
Mabo(8)

HIS HONOUR:  That does not suggest that delivery was a

condition·of the granting of leave.

MRS WHITE:  The leave was granted to deliver an amended

statement of claim in the terms that had

been addressed him on that day.

(Continued on page 17)

C3Tl5/3/JM·	36	3/5/89
Mabo(8)

HIS HONOUR:  But did not Justice Moynihan have before him a sunm1ons or, at least some document which showed

. precisely the amendments that were being sought 1

MRS WHITE:  Yes. The proposed amendments were before him

just as 31A, but not a consolidated document, just

those proposed sections, that was all, and he then
ordered that the plaintiff have leave to deliver an

amended statement of claim in the terms of those

amendments which had been put before him. That

was not opposed by the State of Queensland. The

State of Queensland would not seek to reagitate

the issue of the fiduciary duty.	We did not oppose
it on that day - - -

HIS HONOUR:	Then, as you are putting it, although the State of Queensland would argue for an order operative
as from today, save for the question of additional
parties, which really is not the subject of an order,
anyhow, there is nothing in the amendments made to
date from which the first defendant would wish to
resile.

MRS WHITE:  No. That is so, Your Honour.

HIS HONOUR:	Thank you.
MRS WHITE:	Thank you, Your Honour.

MR KEON-COHEN~ Your Honour, I could promise to be 30 seconds.

HIS HONOUR: Well, perhaps both counsel would sit for a moment

to give me just an opportunity to see where we are

going. We - something of a tendency to go round in

circles, but I do not want to hear argument on

matters that, in the end, prove really to be the

subject of agreement.	Mrs White has put the position
of the State of Queensland clearly to me.	So far as

the Conm1onwealth is concerned, as I understood from

the Solicitor-General that the CoillI.O.on:·;:eal th would not

question any of the amendments made to date, save

for those made on 23 February, and yet, those made

on 23 February, if they stood without any

further proposed amendments would not truly involve

the Conm1onwealth. It is only the amendments now

sought to be made that place the Conm1onwealth under

some difficulty, it is said, in regard to the

amendments made on 23 February.

So, it is a fairly narrow area of disagreement,

is it not, Mr Solicitor?

MR GRIFFITH: - Your _Honour, but the problem is that the

plaintiff pleads, Your Honour - my learned friend

pointed out this declaration BX that he sought, a
declaration which he read as including a declaration

against us, that these duties arose, and that an

impairment will constitute breach by the defendants,

C3Tl6/l/FK	37	3/5/89
Mabo(8)

this is on page 23, 24, including us. Now - - -

HIS HONOUR:	Now, wait a moment, which document is this -
MR GRIFFITH:	The large one, Your Honour.
HIS HONOUR:	Yes, but you are talking about the proposed

amendments not the existing amendments.

MR GRIFFITH:  No, but Your Honour, that is part of the existing

because they tie in with the allegations. The BX tied

in, BY and BZ were part of the original amendments, is

that not so?

HIS HONOUR:	You mean, they came in with 31A to 31 - - -
MR GRIFFITH:	23, 24,Your Honour, so that - page 22 of the

first version, Your Honour, they were part of the

amendment process. Now, Your Honour - - -

HIS HONOUR:	Page 22?
MR GRIFFITH:	22BX and BY and BZ. Now
HIS HONOUR:	One moment - yes, well I understood that to be

the position.

MR GRIFFITH:  Your Honour, we find it unsatisfactory Lhat there

is the allegation of duty against us - no allegation

of breach, which we say on the face of things -or even

impaired threatening breach -and yet there is a claim

for a declaration and, Your Honour, we know from the

second version that the - - -

HIS HONOUR: Just a moment. That was known to the Commonwealth

presumably prior to	the hearing on 23 February, because
it was part of what	was then being sought by the
plaintiffs.

MR GRIFFITH! Yes. Your Honour, I was not there, but we -

my understanding, Your Honour, we did desire to have

these matters argued when the matter came on before

Justice Moynihan at the commencement of the

proceedings, and the judge took the view he should make

the order then and there, and that came as a bit

of a surprise to us, Your Honour, but he made it.

(Continued on page 39)

C3T16/2/FK-	38	3/5/89
Mabo(8)

MR GRIFFITH (continuing):  We were concerned about these

points and we sought to explore them by requesting

particulars. We had particulars served which

indicated that no impairment was alleged by us

and then we have the new version now which

seeks to bring us in and the new version of

particulars which alleges impairment.

Your Honour, it just seems to us that it

is appropriate that the trial judge be just left

to sort it out.

HIS HONOUR:  Are you going to suggest a form of order?

MR GRIFFITH:  Yes, I was, Your Honour. We propose that

Your Honour direct that the Supreme Court of

Queensland may make orders and give directions

as may be appropriate for amendment of the parties

and the pleadings and for the giving of further

particulars in respect of the pleadings as amended.

HIS HONOUR:	Why "as amended"?
MR GRIFFITH:	Because His Honour has power to order the

amendment. I suppose it could be regarded as

otiose but just to make it clear that he can give -

Your Honour, the original order of the Chief Justice

remitted issues of fact raised by the pleadings

and particulars and the further particulars, so

I added '' as amended" just to make it clear that

he could order further particulars including of

the amended - - -

HIS HONOUR:	I was not sure that you were not shutting yourself out from a request for further particulars
of existing pleadings.
MR GRIFFITH:	I was not intending to do that, Your Honour,

but perhaps the fact that Your Honour can criticize

it justifiably, we could drop the "as amended"

and that would make it clear.

HIS HONOUR:  Yes, I think it probably is clearer.

MR GRIFFITH:  Yes, thank you, Your Honour. Your Honour,

perhaps I could indicate one matter. Your Honour indicated

that we only had a problem, as you saw it, about

this order as amended. We do have the problem

about the order of October 1986 made in our absence

adding an allegation to the Barrier Reef but we

just suggest, Your Honour, that that be something

for the judge to sort out.

HIS HONOUR;	That is the conditional order, is it not?
MR GRIFFITH:	That is a conditional one, yes.

C3Tl7/l/SDL	39	3/5/89
Mabo(8)

HIS HONOUR:  I think it is accepted by the parties that -

perhaps the precise status of that order is not

clear but it seems to be accepted by the parties

that that order will not be operative until the

Commonwealth has been given an opportunity to

be heard on it - in respect of those amendments.

MR GRIFFITH:  Yes and, Your Honour, could I indicate that

generally we accept, Your Honour, that it is appropriate

for the trial judge to consider these further

applications for amendment, having regard to all

that has happened to date, including these orders

that have been referred to, with the intention,

Your Honour, that appropriate orders will be made

which see that matters as now sought to be raised

by the plaintiffs are properly pleaded and that

issues between the defendants, which are several

issues, are appropriately pleaded in a several

manner.

HIS HONOUR: Mr Solicitor, I am not losing sight of the

fact that you have two other matters you
wish to argue but I think I made it clear that

I propose to deal with this first question and

then see where we go from there.

MR GRIFFITH: Yes. Well, that is the order we would suggest,

Your Honour.

HIS HONOUR:  Mrs White, do you want to say anything about

an order in the terms suggested by the Solicitor-

General.

MRS WHITE:  The State of Queensland is content with that

order as proposed, Your Honour.

HIS HONOUR:  Mr Keon-Cohen, in responding, perhaps you

could have regard to the fact to what Mrs White

has said regarding the position of the State of

Queensland so that although it will not be

Really, the only area of disagreement would seem	incorporated in the order, the position is clear.
to be in relation to what took place on 23 February
so far as it affects the Commonwealth.

MR KEON-COHEN:	Yes, Your Honour.
HIS HONOUR:	Now, with that in mind, is the order suggested

by the learned Solicitor-General an acceptable

order?

MR KEON-COHEN:  It is acceptable to us, Your Honour. I

am left a little unclear as to the attitude that

might be taken under this order as to whether

or not the Commonwealth may reagitate the orders

already made against it in respect of fiduciary

9uty and trust.

C3Tl7 /2/SDL	40	3/5/89
Mabo(8)

HIS HONOUR:  Are you speaking now of the orders made back in

October 1986?

MR KEON-COHEN:  No, on 23 February 1989.

HIS HONOUR:  Then I do not think you should be under any doubt about that. I think the Commonwealth has

made its position clear, that it would seek to

argue against the amendments that were made on

23 February 1989 so far as they relate to it.

Have I understood your position, Mr Solicitor?

(Continued on page 4~

C3T17 /3/SDL 41 3/5/89

Mabo (8)	·
:MR GRIFFITH:	Yes, Your Honour, because we really do not

understand the allegation as to whether it brings

us in or not.

HIS HONOUR:	But in a sense that is caught up in the fact that there are further amendments which you are
seeking and will seek before Mr Justice Moynihan
if this order is made which, in a sense, may
overtake what took ·place on 23 February. I do
not suggest they will because 1 am not that familiar with the pleadings.
:MR KEON-COHEN:	Yes. Well, I do not want to delay the Court

with detailed complications, Your Honour, but I

am unhappy with the order to the extent that

it does not protect me, in respect of those

amendments already made in so far as they allow

us to seek any relief against the Connnonwealth,

that is to say, amendments alleging fiduciary

duty and trust, no impairment alleged against

the Connnonwealth but nevertheless seeking declaratory
relief against the Connnonwealth. Those orders,
in so far as they allege a cause of action against

the Connnonwealth, were made on full notice and to

that extent, Your Honour, I am unhappy with the

Solicitor-General's order in so far that it does

not, in words, secure that position.

HIS HONOUR:	When you say you are unhappy with it, do you mean you oppose it or you accept it grudgingly
and will learn to live with it or what?
:MR KEON-COHEN:	I would like it amended, Your Honour, to incorporate my desires.
HIS HONOUR:	In that case you had better offer me an

alternative form of order.

:MR KEON-COHEN:  Yes, and it would be in this substantive

form, Your Honour: to add words, "save that

the orders made by His Honour Mr Justice Moynihan

on 23 February 1989 amending the statement of

claim of October 1986 stand."

HIS HONOUR: Yes, thank you.

(Continued on page 43)

C3Tl8/l/PLC	42	3/5/89
Mabo(8)

HIS HONOUR:  As has happened from time to time in this

matter, the debate between counsel has rather

narrowed the area of disagreement. It is common

to the parties that the question of further amendments

to the statement of claim or to the pleadings generally

ought properly to be with the Supreme Court of

Queensland and that this Court should not be called

upon from time to time to make orders in respect

of those matters. The difficulty arises in regard

to what took place on 23 February 1989. Certain

orders were made by way of amendment clearly raising

a cause of action against the first defendant
but not, in terms, raising a cause of action against
the second defendant except in so far as certain
relief was sought by way of declaration in the
prayer for relief.

As to the orders made on that day, that is 23 February, Mrs White, on behalf of the first

defendant, has made it clear that that defendant

would not seek to challenge the orders made that

day or any other amendments so far made save in

so far as they might relate to the parties who

comprise the plaintiffs in this action. So, the

difficulty, if there be a difficulty, arises in

regard to the unwillingness of the second defendant
to give any such undertaking in respect of
23 February, for reasons which the Solicitor-General

has outlined in the course of his argument.

I do not wish to take a stand or make a

decision that turns upon the form of the order

made by Mr Justice Moynihan on 23 February, although

there is perhaps a great deal to be said for the

argument advanced by Mrs White that what, in fact,

took place was not the allowing of amendments

then and there but leave to the plaintiffs to
serve an amended statement of claim, which I am
told was not done. But, to make an order which
validates the position as it stood at the end

of 23 February does give rise to problems in so

far as there is a statement of claim which contains

allegations against the first defendant and not

against the second defendant but which then seeks

declaratory relief against both. These amendments

may well be overtaken by the further amendments

T18 proposed to the statement of claim.

In those circumstances, I find persuasive

the argument on behalf of the Commonwealth that

it would be better to leave to Mr Justice Moynihan,

as the trial judge, the question of amendments

generally. And I propose to do that having regard,

of course, to the assurances that have been given on behalf of the first defendant and the position as it has been described on behalf of the second

defendant which, as I understand it, would leave

C3Tl9/l/SDL	3/5/89
Mabo(8)	43

only for possible challenge the amendments that

were made on 23 February this year. Other amendments
which were made conditionally, it seems it is

common ground between the parties, remain to be

the subject of argument at a later date.

I therefore propose to make an order in these terms: that the Supreme Court of Queensland

may make orders and give directions as may be

appropriate for amendment of the parties and the
pleadings and for the giving of further particulars

in respect of the pleadings in this action.

Now, do I simply reserve the question of

costs?

(Continued on page 45)

C3Tl9/2/SbL	3/5/89
Mabo(8)	44
MR GRIFFITH:	Your Honour, our submission would be that costs should be reserved, but it is appropriate
to consider these two other matters as a whole,
Your Honour, and dispose of relevant issues between
the parties that involve application to this Court.
HIS HONOUR:	I have not heard from Mr Keon-Cohen yet save to learn that he objects to those matters being
dealt with.  Have I understood the position?

MR KEON-COHEN:  Yes, Your Honour. Your Honour, as to the

further matters indicated by my learned friend -

HIS HONOUR:  Could I just interrupt you, Mr Keon-Cohen.

I will give you the opportunity, if it arises,

to answer these questions. I am only concerned

at the moment as to the proposition that I should

deal with them this morning.

MR KEON-COHEN:  In my submission, Your Honour, you should

not.

HIS HONOUR:	And the reason?
MR KEON-COHEN:	Because there is no need, Your Honour.

The matter has been very extensively discussed before His Honour Mr Justice Deane in February 1987,

two weeks later, before His Honour the learned

trial judge, when all this question of difficulty

of alternative findings of facts, of ruling at

the moment of objection or delaying rulings until

the submission stage or not ruling at all but

making alternative findings of fact and leaving

that question of law to this Court - all of that,

Your Honour, was very substantially discussed.

HIS HONOUR:	What is the present position, Mr Keon-Cohen, so far as Mr Justice Moynihan is concerned?
MR KEON-COHEN:	Your Honour, the present position is slightly

different to my learned friend's indication.

In my understanding, the present position is

that Justice Moynihan decided that he would not

rule in the hearing of the evidence; that he

would delay all matters, including the question

whether he should or should not rule, until hearing

final submissions and he indicated also that the

submission of Mr Casten, my learned leader, that

the learned trial judge should not rule at any

stage was, as he was then minded, unacceptable.

He indicated that he was minded to require the

parties, when making final submissions, to put

to him the alternative findings of facts which
they sought on the evidence. Those alternative

findings would be with regard to what might be

said to be admissible under various heads of

admissibility and what might not. The trial judge

was minded to hear those submissions and, as a

result of all of that, decide whether he should

C3Tl9/3/SDL	45	3/5/89
Mabo(8)

then rule - and he was inclined, I think, to do so -

and then proceed to find the facts in accordance

with those rulings.

HIS HONOUR:  Has any evidence that raises this sort of issue yet been adduced?

MR KEON-COHEN:  Yes, Your Honour. There are 600 pages

of constant difficulty, you might say, but not

insurmountable and, in my submission, the matter

is proceeding with proper efficiency and expedition

and all parties are earnestly endeavouring to

expedite the hearing of evidence under those admitted

difficulties.

IS HONOUR:  So what happens? An objection is taken and

simply noted by His Honour?

MR KEON-COHEN:  The matter was fully debated before

His Honour. The objections have been raised -

there are about six of them; the evidence is

called. Mrs White or, at that time, a Mr Byrne

from Queensland, said, "I object on the usual

basis", and I would proceed to ask the question

understanding fully that the evidence, which might

be on its face hearsay, was admitted subject to

ultimate submissions and rulings about the admissibility

of evidence - and the trial proceeded, Your Honour.

HIS HONOUR:  I do not want you to take me to the detail

of the objections, but are they objections that

go to aspects of the evidence of a particular

witness or at times do they go to the entirety

of the evidence of a witness?

(Continued on page 47)

C3Tl9/4/SDL 46 3/5/89

Mabo(8)	·
MR KEON-COHEN:	They go, Your Honour, to the particular

evidence being given and to very fundamental

issues in the case; for example, a common objection

is raised to that evidence in the form of "My father	told me that' 1 is not receivable as, on its face,
obviously hearsay. The plaintiff would seek to
argue, ultimately, that that evidence is receivable
on a variety of grounds. The thrust of Mr Casten's
submissions before His Honour Mr Justice Deane and
before Mr Justice Moynihan was that it is premature
to now rule on such a question of reception of that evidence because to so rule begged the question of
substantive law which was ultimately ior this
High Court; that is to say, taking the most important
example for which we contend, which is traditional
evidence, a form of evidence discussed in this Court
by the former Chief Justice Sir Garfield Barwick in
DAERA GUBA.

We contend that evidence of that character is

admissible as traditional evidence, not as an exception

to the hearsay rule but admissible in its own right.

To rule that such evidence is not admissible under

that head or others is to assume the non-existence

of the traditional rights for which we claim. In

so assuming, His Honour the learned trial judge would

very seriously err, in our submission, in properly

finding facts which would be able to come back to

this Court and reveal to this Court the ultimate

issues including, Your Honour, on our submission, a question of great significance, whether there is
a law of evidence in this country, in a trial seeking

to assert traditional title of traditional evidence.

Now, all of that, Your Honour, was very

substantially discussed. The matter, if you like,

was put to rest satisfactorily for the contending

parties and several days of evidence have been heard from Mr Eddie Mabo, the chief plaintiff. He has yet

to be cross-examined. A modus operandi satisfactory

to all sides was achieved, although it involves
difficulties.	Now, on that state of the proceedings,

Your Honour, in my submission, it is very late and,

with great respect, it is unacceptable for the

learned Solicitor-General to now seek to unsettle

all of that simply because he now discovered, in my

respectful submission, again, very late, that the

Commonwealth is now very greatly involved and that

substantive allegations are made against the

Commonwealth and that evidence already led and dealt

with in that. way is now to be seriously questioned

and subject to cross-examination in the normal way

by the Commonwealth.

HIS HONOUR:  You spoke of the matter coming before

Mr Justice Deane on an earlier occasion. Was any

C3T20/l/SH	47	3/5/89
Mabo(8)

order made by His Honour relevant to this

question?·

MR KEON-COHEN:  No, Your Honour, but may I refer you to the

transcript and indicate the view His Honour took

on that occasion of this issue whether alternative

findings should be made or whether that was acceptable.

On the - - -

HIS HONOUR:  When was that, Mr Keen-Cohen?

MR KEON-COHEN:  On 13 February 1987, Your Honour. The matter

was heard in chambers in Sydney.	I appeared with
my learned leader and Mrs Hocking.	Dr Griffith

appeared with Mr Gottersen and Mr Davies appeared

with Mrs White and, at page 14 of that transcript,

His Honour Mr Justice Deane said this, in response

to Dr Griffith's submissions:

I do not want to say it and by a back door

interfere with what Mr Justice Moynihan is

doing by expressing views but I would say

that I think it desirable that objections

to evidence, if they involve complete exclusion of evidence by your client,

in a situation where the matter is coming to

this Court, should, if possible be aimed, as
it were, at having alternative issues

determined rather than excluding effectively

the determination of the matter finally in

this Court if one view of the law prevails

over another. Now, I do know if you can be

helpful in relation to that.

Mr Davies responded and then, at page 15, His Honour

continued:

But what I would say is I think it is incumbent on all the parties, when they

have joined in requesting the remitter of

issues of fact to be dealt with by the

supreme court -

and I pause there, Your Honour, to say that that is

clearly correct. The matterbefore His Honour

the former Chief Justice proceeded on agreement of

all parties including, of course, the Connnonwealth,

that issues of fact should be remitted.

(Continued on page 49)

C3T20/2/SH	48	3/5/89
Mabo(8)

MR KEON-COHEN (continuing):  But, Your Honours, as it

revealed in the decision of the former

Chief Justice in the ALR report, issues

of law and questions of whether a matter was

an issue of law should be reserved to this

Court. And that, Your Honour, in our

submission,includes issues of evidence.

Continuing then, Your Honour, with

Mr Justice Deane:

In requesting the remitter of issues of fact to be dealt with by the

supreme court, to co-operate to

formulate alternative issues which will

enable His Honour to make the findings

of fact which will enable the matter

to be determined by this Court whatever

view of the law might ultimately

prevail.

Now, the learned Solicitor-General now seeks

to ask Your Honour to upset that position, And

in the second issue he raises, and particularly

in the third issue, to suggest that - - -

HIS HONOUR:  Yes, well, let us keep the third issue

separate.

MR KEON-COHEN:  Yes, can I just proceed, Your Honour,

at page 15 of the transcript? Dr Griffith

stated:

Yes, well, Your Honour, I think our
observations are probably not very
helpful to Your Honour. It seemed to

us, Your Honour, if there is ten weeks

set aside for hearing of further

evidence, as a matter of general
policy, Your Honour, it is appropriate

that the result of this evidentiary

activity will produce findings on a

basis which will enable the Full Court

to deal with outstanding issues in one
hearing.

Your Honour, that arose from a discussion that

said, well, if the learned trial judge rules

on admissibility and rules out various evidence

as not receivable, for one reason or another,

and proceeds with the trial and makes findings

of fact, if ultimately, the High Court then

decides that the learned trial judge was in

error about admissibility, the High Court might

ultimately take the view that it did not have
before it all appropriate facts and would have

to send the matter for, in effect, a second trial

49

C3T21/l/JH	3/5/89
Mabo(8)

and it was agreed on all sides that that would

be undesirable. In my submission, Your Honour,

nothing has changed in substance from the

position here stated to the position today.

All that has changed is that we have

experience of the difficulties but, in my

respectful submission, we are coping with them

properly and adequately.

Then, Your Honour, may I continue?

At page 15, Dr Griffith continues - well,

His Honour said:

That must be pretty plain to everybody,

Mr Solicitor.

Dr Griffith:  We would have thought so,

Your Honour. So that when one says,

"Well, a finding of fact can be made

on one view of admissibility to this

extent; on another view, to that
extent", it would seem to us,

Your Honour, self-evident, that they

should be made in the alternative and

that this issue which is identified

and, take question 1

and he goes on to discuss it. And then,

Dr Griffith continues at the bottom of page 15:

Now, we would hope that it is not

necessary to take the leave reserved by

His Honour the then Chief Justice in

his order ..... to keep on applying to

this Court in chambers to get to that

obviously sensible position and if that

view which seems to us to be logically

compelling prevails, Your Honour, it may

well resolve the difficulties in the

field. Having said that, Your Honour,

I probably - I have not added anything

to what Your Honour had already said,
in effect.

And those were the submissions of the learned

Solicitor-General. Now, Your Honour, all of

these issues were then, again, debated before

Mr Justice Moynihan two weeks later in Brisbane

when His Honour had invited the parties, being

Queensland and the plaintiffs, to make

submissions as to whether he should rule then

and there on questions of admissibility, whether

he rule at the end of the evidence, or whether he

should rule at all. His Honour heard those

submissions and issued a two or three page detailed

finding or ruling or direction about that.

C3T21/2/JH	3/5/89
Mabo(8)

And the position is, Your Honour, that,as

I read that ruling, he determined that he

should not now rule, that he should admit

all evidence, subject to all proper

objections and to all rights of argument; that

at the end of the day he should hear submissions;

that those submissions involved the proposition

whether he should then rule at all and if he

should rule then, how he should rule in respect

of the five or six heads of argument in

respect of, perhaps, hundreds of particular

passages of evidence. Not an easy task,

Your Honour, we all admit that; quite difficult. We may need a computer to cross-reference all of

and given the point that one should not

that and we all have computers,in the trial.

But not impossible; and in my submission,

prejudge the ultimate issue of the existence

of the traditional rights claimed for, by

reason of making a decision that traditional

evidence or other evidence of custom or

public or general rights~ by making a decision

that that evidence is not admissible, given
that submission that one should not prejudge the

ultimate issue by reason of a ruling of

evidence, in my respectful submission, that was

a very proper and efficient and compelling

result that was achieved and a result which is

achieving the desired purpose, Your Honour, that

is to say,the proper hearing of this evidence,

subject to all rights of submission.

(Continued on page 52)

C3T21/3/JH	51	3/5/89
Mabo(8)

MR KEON-COHEN ( continuing) : Now, we have con°mcted the trial

on that basis. Your Honour, if learned

Solicitor-General's argument is to receive

favour by Your Honour and Your Honour were to

make appropriate rulings, or to receive favour

by the learned trial judge, then we may, on one
view of it, relieve one complexity but on another

view of it we encounter significant new complexities,

that is to say, how are we to view the evidence

which has already been admitted and how are we to

view further the subsequent conduct of the trial

in terms of our concern to have before this Court

all available and proper material?

If a hard view is to be taken of it, Your Honour,

by my opponents or by the learned trial judge that

any evidence which is held and determined on the

run to be not admissible and thus is locked out

In our respectful submission,we are facing a

position at the end of the trial which, for the

reasons fully discussed and to which I have referred,

will be very unsatisfactory for the purposes of
the ultimate determination of issues by the

Full Court of this Court.

Now, Your Honour, there is a further point

in this submission -

HIS HONOUR: Well I have rather allowed you to roam, I think,

Mr Keon-Cohen. I invited you to address me as to

whether it is appropriate to deal with this

application now and you have really gone beyond

that to the merits of the application. So,

unless what you propose to say relates to the

basis upon which I invited you to speak sometime

ago, I think perhaps I should not hear from you

further.

MR KEON-COHEN:	Yes, Your Honour. Thank you, Your Honour.
HIS HONOUR:	Mrs White, you rather got overlooked in all of

that. Did you wish to say anything about the

appropriateness or otherwise of dealing with this

matter at this stage?

MRS WHITE:  Yes, thank you Your Honour. Your Honour, our

submissions wouid be, notwithstanding the absence

of a formal application in writing to that end -

and, with respect, that could be rectified -

notice was given yesterday that it was proposed

if possible to ventilate this matter before a

chamber J.idge today and it seems that it would be a saving in costs if the exercise were undertaken

today and, indeed, the nature of the submissions

already made by my learned friend, Mr Keon-Cohen,

suggests that those submissions can be fully

C3T22/l/DR	52	3/5/89
Mabo(8)

ventilated and, indeed, have been on his part

to a large extent. So it seems appropriate that

it should be disposed of. If I could perhaps add

this: the approach that my learned friend,

Mr Keon-Cohen, has had in making his submissions

to you suggested that all is going along very

well and the hearing of the trial of the fact

simply is not the case. In fact, it has been

beset by this major difficulty as to the

admissibility of evidence and that has been

ventilated by the State of Queensland on many

occasions and it was the subject of several

lengthy submissions to Mr Justice Moynihan. It

was also raised before Justice Deane.

But, perhaps a more telling point is an

affadavit that was filed in this Court by the

plaintiffs in April 1987, an affadavit of

David Shaw, a solicitor of Messrs Holding Redlich & Co.

Solicitors - and I think the learned Solicitor-General

has a copy. Your Honour, paragraph 18 of that

affadavit says:

In the course of argument before Moynihan J.

in the Supreme Court on 23rd February 1987 an

attempt was made to deal with some of the
severe difficulties and complications inherent
in carrying out the order of Gibbs C.J.

remitting the issues of fact for determination.

And he goes on to observe, in paragraph 19 on the

tenth page of his affadavit, that His Honour has

described:

" .. ~some hundreds of pages of pleadings,

particulars and further particulars giving

rise to what might justifiably be described

as a myriad of issues"

appeared to render virtually impossible, the

course of making alternative findings.

Now, that affadavit was filed in an application
by the plaintiffs to revoke the remitter.	The

basis of it was the impossibility of proceeding

with the trial of the facts before Justice Moynihan.

Now, Your Honour, you are not inviting submissions

I understand that, Your Honour, so that it is a

little curious to suggest that all is going

frightfully well. That affadavit was filed after

the conclusion of the hearing of evidence by

Justice Moynihan on the first occasion. At that

stage there had been some 16 sitting days and

nine days of evidence given by the first-named

plaintiff, Edward Mabo. So the issues were very very

fully before the parties and the judges who were

asked to consider the matter.

C3T22/2/DR	53	3/5/89
Mabo(8)

HIS HONOUR:  The difficulty I have in dealing with the matter

now, or a difficulty and maybe others as well, but
how could one make that sort of assessment of the

way in which the trial has progressed without a

very long and detailed review of the evidence and
the objections that had been taken and the time

suggested that has been wasted and any other

difficulties that have arisen? It would seem to me

to be a major exercise.

(Continued on page 55 )

54

C3T22/3/DR	3/5/89
Mabo(8)
MRS WHITE:	It may be, if Your Honour took that approach.

It might ·be quite a short matter if Your Honour were disposed to be taken to aspects of the

evidence. Certainly the view of Mr Justice Moynihan

was that, when pressed to make rulings about

admissibility by the State of Queensland, he

declined to do so in the early stages and said that

he really needed to hear more of the kind of evidence

that was being objected to, to see the nature of

that evidence and to whether it was appropriate

in preparing cross-examination and,

for him to make such rulings. At that stage, the prejudiced

indeed, preparing its case if it were not to know

what case it had to meet on the evidence as was

properly admissible before the case as would be

the case in any ordinary trial of the facts.

As has been said by my learned friend,

Mr Keon-Cohen, the plaintiffs press that all

evidence should be received by the court, no

matter how trivial, no matter objectionable it

might be as to form. Some of that evidence, in

fact, has not been received in the form that it

was hoped to but was withdrawn. But by and large

there is a great deal of material before the

~ourt which is clearly objectionable almost on

any basis and ought to be ruled to be inadmissible,

either for relevance or for any of the various

heads relating to the inadmissibility of hearsay

evidence.

So that it seems, Your Honour, that these

difficulties and the prolongation of the trial will
continue unless we can get some order into it. On

the question of the traditional evidence - if that

be the one area of admissibility of evidence that

concerns the plaintiffs, then that is a question

that·simply could, on the state of the evidence
today, be dealt with by three J,ustices or one

Justice of this Court, if it were necessary to

decide that issue rather than leave it for

Justice Moynihan to deal with.

There is enough evidence of that nature because we are informed that Mr Mabo is the

principal witness and the first-named plaintiff

and he has given his evidence in-chief. So that

those issues could be ventilated before this

Court if it were necessary as a preliminary point.

HIS HONOUR: Well if that was to happen it would not happen -

MRS WHITE: It would not happen today, I understand

HIS HONOUR:  - - - through the medium of liberty to apply

" provision-.

C3T23/l/DR	55	3/5/89
Mabo(8)

MRS WHITE:  That would be so, but perhaps it could be

foreshadowed or dealt with at a directions hearing

which today it could easily be, Your Honour. If I can assist you further I would endeavour to do

so but I do not wish to make any submissions of

a general kind at this stage.

HIS HONOUR:  Thank you. Mr Solicitor.

MR GRIFFITH:  Your Honour, could I indicate firstly that

until the amendments for which leave was given in

February and the proposed amendments in the

substantial document which Your Honour has before

you in respect of which orders have not been made

were produced as proposed amendments, the

position of the Commonwealth, Your Honour, was
that there was almost no relevant claim for relief
against it in this action and that there was almost

no relevant inquiry of fact that concerned it.

That view was, in fact, Your Honour

that it was thought unnecessary and'extravagant

for the Commonwealth to be represented in the course

of the evidence being given on the remitter before

Justice Moynihan.

Now, Your Honour, it is the amendments for

which leave has been given and the proposed
amendments which introduce new and original claims

against the Commonwealth for various forms of relief, dealing with areas of seabed and seas

external to the territory of the Commonwealth in

respect of which particula~served as recently
as 27 March - I am sorry, of April, Your Honour -

raise a myriad of issues. To put the matter broadly, Your Honour, the particulars as now delivered raise against the Commonwealth an issue

that the plaintiffs claim rights exclusive to

themselves, both to exclude the Commonwealth, and

all persons in the world, Your Honour, from an

area of sea identified as being the equivalent to that annexure 7 to the Torres Strait Treaty

which runs from the boundary of the continental

shelf between New Guinea and Australia to the

east. Murray Island is about here, Your Honour,

over towards the mid-portion of the Indonesian

part of New Guinea, West Irian.

HIS HONOUR:  Are these the amendments that came in in

October - - -

MR GRIFFITH:  No, Your Honour, these are the ones that

are foreshadowed. We have asked for particulars of

them but we are told, Your Honour, the plaintiffs'

claim is for seabed and seas in that area of sea.

We were asked, for example, to give discovery,

56

C3T23/2/DR	3/5/89
Mabo(8)

Your Honour, of all documents pertaining to the making of the Torres Strait Treaty. There is an example of general discovery and we received

again yesterday a letter indicating that further
and general discoveries to those general matters
dealing with Australia's external relations and

other matters are desired by the plaintiff to

pursue these claims.

HIS HONOUR:  But that is only going to cause problems if

those amendments are allowed.

(Continued on page 58 )

C3T23/3/DR·	57	3/5/89
Mabo(8)
MR GRIFFITH:	Yes, Your Honour.	Your Honour has heard briefly

from my learned friend.	He says that they are just
simple claims to offshore areas.	But they are not,

Your Honour, they are new and original claims.
If assumes that amendments are made, well then, there

is a myriad of factual issues which will arise and we are threatened with general discovery as to the

course of our external relations running back until the
formation of the Corrnnonwealth.

Now, in that circumstance, Your Honour, for the first time we regard it as appropriate to become

concerned with this issue of inquiry of fact, because

there were not any relevant issues which justified

our attendance.

HIS HONOUR:  But why should not this application more properly

await the outcome of the application by the plaintiffs

further to amend their statement of claim? If they

are unsuccessful, then the position of the Corrnnonwealth

is as it is has hitherto been, and there are no great

problems.

MR GRIFFITH:  Your Honour, that is the appropriate question. In

many ways these issues are all subsumed in the other

because assessment of our position in the face of

these applications to include these substantial new

claims against us is, Your Honour, that the matters

put in issue are of such breadth, both as to fact and

the other issues involved, questions_ of discovery

and evidence, that we would clubmit that it is appropriate

for the judge hearing the matter to hear it as a trial

judge.

HIS HONOUR: Well, that is another question.

MR GRIFFITH: Well, Your Honour, in a way this question is subsumed

into that because Your Honour has heard from Mrs White

the manner in which the judge attempted to grapple with

what he saw as the confines of the m~hanism of remitter.

I think Your Honour has a copy of the transcript of

yesterday's proceedings.

HIS HONOUR:  Yes, I do.

MR GRIFFITH:  Can I take Your Honour to page 676? At about

line 14 Your Honour will see that Justice Moynihan

notes the problem that has arisen in respect of
admissibility of evidence and then at about line 35, having referred to the position that he has taken to

date as bedng the appropriate one as referred to by my

learned friend, Mr Keen-Cohen, His Honour expresses

what we submit is a strong, and, with respect, oractical

view as to the issues which he sees besetting him.

He says:

C3T24/l/VH	58	3/5/89
Mabo(8)

I must say, reviewing my experience on the

previous occasion as I have recently, I am

not sure of the practicality of that approach.

I will dispose of the matter on whatever

basis is necessary to comply with the terms of

the remitter. For myself, however, in terms

of the practicalities of dealing with the issues

which are now obvious and the difficulties which

are inherent in them, the most practical way of
disposing of these proceedings is for me to
proceed as closely as possible to the trial of
an action, making necessary rulings in respect

of such matters as pleadings, particularity and

the admissibility of evidence. As I say, the

prospects of endeavouring to proceed on a

different basis have adegree of difficulty about

them which becomes more obvious the more that

one has occasion to address them.

Now, what we say, Your Honour, is that when one has

occasion to consider the remitter power, of course -

and I am not going to deal with the third application
but just to make the point of why we submit it is

appropriate to deal with the issue now - but the

Court, of course, has a discretion whether to remit the

matter, let it come back on appeal or on removal or

come what may, or to remit the issue of fact finding.

Speaking generally, Your Honour ,it could be said that

the remitter of fact finding has not proved to be

very satisfactory. In the case of the IXJGS' case

there was some five or six years of findings of fact

which just came back to the Full Court in a suitcase.

HIS HONOUR:	Yes, I read the transcript.
MR GRIFFITH:	I am sorry, Your Honour.
HIS HONOUR:	I do not mean of that case, I mean the reference in the transcript.
MR GRIFFITH:	Yes, I should not make the same point twice on

successive days, Your Honour.	But there are difficulties.
Now, when the matter went off by consent there was

a confined pleading; the plaintiff had four volumes of

factual materials which it said was the facts that

it desired to establish. They seemed to be identified.

And it was, we say, reasonably understood by the

parties when the approached the Chief Justice with the order that that was an efficient way to dispose of it.

Now, what we say is that one should demur to the view

of the judge who is dealing with the matter.

HIS HONOUR:  But is there anything to prevent Mr Justice Moynihan

now saying, having regard to the problems referred to

on page 676 of the transcript, "My earlier view of

the way in which I should approach this matter has

has proved to be impractical. I therefore propose to

deal with the matter in a different way, henceforth.

C3T24/2/VH	59	3/5/89
Mabo(8)

MR GRIFFITH:  Your Honour, our submission is,no, but what we

expect is my learned friend will say that that

is implicitly at variance with the observations of

Justice Deane and that absent authority of this

Court, the judge should not follow that procedure

and for abundance of caution and to better comply

with what seems to be the perception of what has been

remitted, he should continue as he is.

What we submit, Your Honour, is that,firstly,
Your Honour is right in that observation but we submit

it is appropriate that. Your Honour indicate that that is a view open

to the judge, so that he can act on that basis if

appropriate.

(Continued on page 61)

C3T24/3/VH	60	3/5/89
Mabo(8)

HIS HONOUR:  I am not sure what throwing my hat into the

ring would do at this stage, Mr Solicitor.

MR GRIFFITH:  Your Honour, unless my learned friend disclaims

it, we expect him to submit to Justice Moynihan

that it will be inconsistent with the observations

of Justice Deane. We submit that is not so,

Your Honour, but we would say that as a matter

of sensible disposition of the problem which

is exposed it is appropriate for the judge, one

way or another, to be clear what is the limit

of his discretion. Your Honour, if the judge takes the view that he should continue, as is

foreshadowed, then, Your Honour, of course, we

would accept that. But we submit that on this

issue the judge should be able to act as the

person with the responsibility to act as

appropriately and we submit on discretion of

fact finding as if he were a trial judge.

Your Honour, so we do not desire to cut

him off from the exercise of discretion in dealing

with this issue, conscious that there will be

a review either by argument of law on the facts

in another place or by way of appeal if they

happen to be remitted and then a judgment by

the judge.

HIS HONOUR:  I suppose it would be open to

Mr Justice Moynihan to take one of a number of

approaches; for instance, he might say, in respect
of a certain line of questioning, "Well, on any

view that the plaintiffs contend for, that evidence

is inadmissible and therefore I don't propose

to hear it." In respect of other evidence he

might well say, "Well, on one view it is

inadmissible but if the plaintiffs. can make good

their proposition that evidence of a traditional

nature is not within the hearsay rule then it

is admissible and therefor~ I think, in taking

a broad view of the future progress of the action

I should take that evidence." I mean, I do not

imagine he is bound to an absolute rule that

requires him to take all the evidence irrespective

of its apparent relevance or not.

MR GRIFFITH:  Your Honour, with respect, it is very useful

that Your Honour say that because, with respect,

we agree with that as being the appropriate

approach that the judge should be in a position

to act as seems to him appropriate.

HIS HONOUR:  But having said it, I feel some diffidence -

considerable diffidence in even suggesting to

Justice Moynihan how he should conduct the matter

because he is the one who is seized of it. The

C3T25 /1 /ND	61	3/5/89
Mabo(8)

issues of fact have been remitted to him and

what now is being invited is some sort of, I suppose - it is more than supervision, it is

a direction to the trial judge as to how he should

conduct the hearing.

MR GRIFFITH:  May we disclaim that, Your Honour. What

we seek is a negative thing, that it should be
clear to the judge that the remitter enables

him to act as a trial judge within the ambit

of those discretions. We submit, Your Honour,

that the judge has indicated that he feels

inhibited by his reading of the order and that

particular paragraph, Your Honour, one finds

that the judge indicates what his own views are,

having regard to practicalities but indicating
that he will dispose of the matter on the basis
which he regards as being confined by the Court's

order.

Your Honour, we do not seek any directions

as to what he does. Our application is that

it be made clear that there is no inhibition

on him acting as a trial judge to find facts.

And, Your Honour, all those elements of discretion,

with respect, we find very sensible and we think,

Your Honour, that if the judge can take the view

that evidence is clearly inadmissible on any

view he should feel free to act on that. But

as we understand the position hitherto the judge

has not ruled on any inadmissibility in respect

of some 289 objections which have been counted

out to date and which are verified in -

paragraph 15 on page 7 of Mr Shaw's affidavit
said that there is 289 separate objections and

the paragraphs before and after amplify some

of those issues.

Your Honour, all we seek really is a

negative thing that the judge be free to act

as approporiate as if he were a trial judge and

it may be sufficient for Your Honour just to

indicate that without making an order but we

do see, Your Honour, that the judge has felt

confined and we do see that absent some expression

from Your Honour that there is no implication

to be drawn from the order that, if nothing

els~ the observations of Justice Deane referred

to in the transcript will be relied up. So that, to

put it at its lowest,. Your Honour, for the

abundance of caution the judge may take the view that he should not rule even in the clear cases.

C3T25/2/ND	3/5/89
Mabo(8)
HIS HONOUR:	Yes, thank you.

MR GRIFFITH:  Your Honour, it is really a matter of deferring

to the judge. He has indicated a view which, we say,

is an informed and sensible one, and, Your Honour, we

feel it is appropriate that when the matter is

remitted,as closely as possible, that the judge should

be able to act as if he is trying the action. We seek

no more. We do not seek directions that he do it this

way or that way.

HIS HONOUR:  Yes, thank you, Mr Solicitor. Mr Keon-Cohen, do

you want to say anything by way of reply?

MR KEON-COHEN:  Your Honour, briefly this. We are content with

the suggestions by my learned friend the

Solicitor-General, save for this, that in suggesting

that the learned trial judge should be free to act as

a trial judge, I assume he infers free to act in

terms of the remitter ordered by the Chief Justice.

That is to say, he is simply finding facts for

reference back to this Court. I hand to Your Honour

the reasons of the then Chief Justice, contained in

a report, MABO V THE STATE OF QUEENSLAND, which is

reported at 64 ALR 1, I have the volume here for

Your Honour. May I direct Your Honour to the

passage in the Chief Justice's reasons at the bottom

of page 4:

The parties agreed that any question whether

the determination of the particular issues raises a question of fact or a question of

law should be reserved for the determination

of this court. I hope that the proper course

of proceedings in the Supreme Court will not be

interrupted by applications to this court.

However, to enable this court to give any

directions -

the Chief Justice reserves liberty.

And then, Your Honour, the order is made which

is agreed at paragraph (3):

Remit all issues of fact raised by the

pleadings -

et cetera. Now, if the learned Solicitor•General is

suggesting that the trial judge proceed as a trial

judge within that clear direction, then we are in

agreement. If the learned Solicitor-General is

suggesting that we should depart that direction -

HIS HONOUR:  I am not sure what you mean by· saying that you

are in agreement?

MR KEON-COHEN:  That is to say, if what is suggested is that the

C3T26/l/FK	63	3/5/89
Mabo(8)

trial judge should act as a trial judge in terms

of this remitter order, which confines him to

finding facts and which allows him to make rulings

about admissible evidence because that is necessary

in the fact-finding process, then there is no

difficulty.

HIS HONOUR:  But that does not seem to lie very easily

with the way I understood you were-putting the matter
earlier. Are you, for instance, saying that if

evidence was sought to be adduced before

Mr Justice Moynihan which, on his view, was

inadmissible, but which he could see was arguable

and that if that be proved to be wrong, would result

in an area of admissible evidence having been

excluded, he should nevertheless exclude it?

KEON-COHEN:  No, Your Honour,he should not exclude it.

H- HONOUR: Because that is what a trial judge might well - - -

MR KEON-COHEN: Indeed, Your Honour. That is what I am

endeavouring to clarify. We would not accept that

such a broadening of the judge's powers is appropriate

under the terms of - - -

HIS HONOUR:  To describe the judge as a "trial judge" is, in

a sense, to narrow, not to broaden, because it would

ordinarily imply that he would be governed by the rules

of evidence. The broad approach has been taken by

Mr Justice Moynihan here, for reasons that are apparent,

although he is expressing some concern about the

methods presently being employed as the action

progresses. But I would have thought that you and

thelearned Solicitor-General were rather at odds on

that matter.

MR KEON-COHEN: Well, we are, Your Honour, and I am trying

to delineate and clarify that conflict, and if I

have not done it properly I apologize. What I am

essentially submitting, Your Honour, is that the

current status quo is workable, has been very

substantially discussed and resolved and despite

the quite genuine concerns that the learned trial

judge expressed yesterday, in my respectful

submission on balanc~ we ought to proceed with that

process and thus any - - -

HIS HONOUR:  Do you accept, Mr Keon-Cohen, that in a particular

case, it would be appropriate for His Honour to say,

"The evidence which the plaintiffs seek to adduce on any

view of the matter is inadmissible"?

MR KEON-COHEN:  Yes~ . Your Honour, and that has occurred from time to

tine. QuestioI}s.. have been A.sked in an 1JI1.acceptable· form or

· without establishing a proper foundation or for reasons of clear

irrelevanc~, for example, and. the question ~ not been pursued

from tine to tine in the transcript. That is clear.

HIS HONOUR:  Have there been rulings excluding - rulings of evidence

as inadmissible?

C3T26/2/FK	64	3/5/89
Mabo(8)

MR KEON-COHEN:  There have, Your Honour, but again subject to

final submissions and my expectation would be, in

regard to a number of places where I have been

stopped, that we would not seek to reagitate that

particular passage of evidence. On other rulings,

Your Honour, where I have been stopped I would

seek to reagitate that.

HIS HONOUR:  But by stopped, you mean the evidence has not

been taken?

MR KEON-COHEN:	Yes, Your Honour.
HIS HONOUR:	So that at the end of the day there, potentially

at any rate, are areas of evidence which, if the

plaintiffs can persuade the trial judge that that

evidence was, in truth, admissible, it might be

necessary to call it.

MR KEON-COHEN:  It may be, Your Honour, though to a very, very

minor extent.

HIS HONOUR:  We are aiming - obviously, we are speculating but

that is the sort of situation that is not beyond

the bounds of possibility.

MR KEON-COHEN:  Indeed, Your Honour. For example, the learned

trial judge has often said, "I need to hear a

very wide spectrum of evidence, perhaps even a

totality of evidence, before I am confident about

ruling about the admissibility, or otherwise, of

particular passages of evidence, the basis of

the objection, the basis upon which it is said to

be receivable", and at the end of the day, having

heard all that evidence, the learned trial judge

might, in his discretion, take a different view

of stopping a particular passage of evidence

months before.

But I imagine that would be a minor problem.

In the main, Your Honour, in the. vast majority of

instances, the learned trial judge has heard the

objection, said, "Yes, I note that, proceed
under objection, to be ruled on at the end of the

day." We reserve, Your Honour, the right to

submit, at the end of the day, that even

substantial questions of admissibility are matters

for this Court, and that thus the learned trial
judge should find in the alternative, rather than

rule then one way or the other.

The learned trial judge has indicated he is

no4 as currently minde4 receptive to that view
and we accept, without reservation, his power to

take that position. But we do say, Your Honour,

that our right to put those submissions at the

C3T27/l/DR	65	3/5/89
Mabo(8)

end of the day also should be recognized and

that the learned trial judge should have, in his

hands that decision-making power as well as

decisions as to any particular passage of evidence. In

ITo/ submission, Your Honour, it would be unnecessarily

restrictive now to suggest to the learned trial

judge that it is more desirable to rule now, or

less desirable to rule now. In my submission, the

best course is for Your Honour to decline the

invitation to, as it were, throw Your Honour's hat

into the ring. If Your Honour pleases.

HIS HONOUR:	Thank you, Mr Keon-Cohen.
MR GRIFFITH:	Your Honour, could I indicate that we desire

no direction from Your Honour that the judge should

make any ruling now or leave it to later.

HIS HONOUR:  No, I appreciate that.

(Continued on page 67)

C3T27/2/DR	66	3/5/89
Mabo(8)

HIS HONOUR:  On 27 February 1986, the then Chief Justice

remitted to the Supreme Court of Queensland all

issues of fact raised by the pleadings in this

action. The matter came before Mr Justice Deane

on 13 February 1987 and His Honour there spoke

of the need not to interfere with the course that

was being taken or about to be taken by the

trial judge.

A great deal has happened since then

including the taking of a considerable amount

of evidence but it seems to me that that

principle still remains a valuable principle to

be adopted by this Court. Although I have

asked counsel to confine their submissions to

the appropriateness of dealing with the

Commonwealth's application this morning, that

has been treated with some degree of

flexibility and I have heard arguments that

bear upon the merits of an application that seeks

to have questions of admissibility resolved

rather than deferred. But I am clearly

persuaded that it would be premature and,
indeed, inappropriate for this Court to do

anything of the sort.

Clearly, this is a difficult matter in

the presentation of material on both sides and

it seems to me that the trial judge is the

person best qualified to decide how he should

approach the matter. To date, I gather,

Mr Justice Moynihan has been disposed to take

the evidence so long as there is an arguable

basis for its admissibility, having in mind

the possibility of making findings of fact and

alternative findings of fact, depending upon

the evidence finally held to be admissible and

inadmissible. His Honour has expressed some

reservations about the appropriateness of
continuing that course but, clearly,

His Honour is the person in the best position

to make that assessment.

Flexibility, based upon an understanding of the issues, must be an ingredient of the

conduct of this action. Without speaking to

the merits of the Connnonwealth's application,

joined in by the State of Queensland, if

counsel were to argue that matter to its

finality, it seems to me that at this stage of

the proceedings it would be quite premature

for this Court to give directions or do anything

more than· give the indications that I have given

in the course of argument by counsel. But even

there it is not intended that in any way those

C3T28/l/JH	67	3/5/89
Mabo(8)

comments should be treated by the trial

judge as o-ther than helpful, if they are

thought by him to be helpful, and as

unhelpful, if that is the view which

His Honour takes.

I do not think any formal order is

called for. The matter is sought to be

agitated under the liberty to apply

provision and my ruling is that I am not
prepared to deal with that matter today,

for the reasons that I have given.

(Continued on page 69)

68

C3T28/2/JH	3/5/89
Mabo(8)

HIS HONOUR (continuing):  Mr Solicitor, you have a third matter.

MR GRIFFITH:  Yes. Your Honour, I apologize to the Court

that we did not have a written application. One

reason, Your Honour, is that I only arrived by the

morning plane this morning and going from one court

to the other but, Your Honour, our application in

respect to the second matter was intended to have

no further content than a neutral matte~ that the judge

should not regard himself as presently subject to

directions so that there would not be any further

application, Your Honour, because it in essence went

no further than the neutral matter of leaving it to

the judge; so that we would hope that Your Honour's

remarks will be helpful to the judge.

Your Honour, as to the third matter

HIS HONOUR:  I think you should specify with some

particularity what the third matter is, Mr Solicitor.

MR GRIFFITH:	The third matter is, Your Honour, that we apply for the order for remission to be varied to remit the
matter for hearing and determination by the Supreme Court
of Queensland.
HIS HONOUR:	That is by remitting the action in its entirety,

is it?

MR GRIFFITH:	Yes, Your Honour.
HIS HONOUR:	Is that an application of which the plaintiffs

have been given notice?

MR GRIFFITH:  Yes, Your Honour. I told them yesterday,

Your Honour, that that would be our application today.

HIS HONOUR:  And is that brought in exercize of the liberty

to apply provisions?

MR GRIFFITH:	Yes, Your Honour.
HIS HONOUR:	It is a dramatic change to the remittal that was

directed by the Chief Justice, is not it?

MR GRIFFITH:  Your Honour, the dramatic change is the change

of the case since it was ordered to be remitted,

including the proposed changes, Your Honour. Can I

explain briefly, Your Honour, what the nature of that

dramatic change is?

HIS HONOUR:	Yes.
MR GRIFFITH:	Your Honour, of course, as my learned friend

pointed out by referring to the Australian Law Report
judgment of the Chief Justice's judgment, the remitter

to find findings of fact was made by consent in that

form.

C3T29/l/HS	69	3/5/89
Mabo(8)
HIS HONOUR:	Yes, I appreciate that.	The argument was as to

the court to which the remittal should be directed.

MR GRIFFITH:  Yes. Now, Your Honour, it was made by consent 1n

that form because at that time the action had been

running for, I forget how many years. It would only

have been running for five years at that stage.

Can I hand Your Honour a chronology? That discloses, Your Honour, that there have been some five statements

of claim over the years and, without counting what

has happened in April and May, Your Honour, we seem

to be up to about seven at the moment with the proposed

statement of claim. Without going into the detail

of the claim, Your Honour, it might fairly be said

that up to the time of remitter there were

substantial claims against Queensland in respect of

the land, the island, Murray Island, on the basis that

there was pre-existing land tenure which survived

acquisition by conquest, and there are also claims,

Your Honour, in respect of immediately offshore

areas which one picked up in the particulars which

were served many years ago from page 58 which showed

fish traps going about 100 metres offshore and showed

the Barrier Reef being about 10 miles offshore from
that. Can I hand. Your Honour that diagram which was the

original particulars at the time that the matter was remitted.

HIS HONOUR:  Could I just interrupt you, Mr Solicitor, to ask

you this. If this application were allowed, what

effect would it have on the current course of

proceedings? Would it affect them in any way?

MR GRIFFITH:  They just continue exactly as the re with the

judge acting as trial judge, Your Honour.

HIS HONOUR:  Then why should I deal with the matter this

morning?

MR GRIFFITH:  Your Honour, because the trial judge would be

hearing the evidence with a view to him hearing the
entire action andgiving a judgment.	It would be

for a different purpose, not just merely to find

facts in a form appropriate for the High Court, but

he would be hearing the action, so that his inquiry would be directed at all times, Your Honour, to the

disposal of the causes of action, not to the - - -

HIS HONOUR:  Might he not be then obliged to deal with each

objection to admissibility as it wasraised and either

remit or reject?

MR GRIFFITH: 

Your Honour, we would suppose he could deal with

the evidentiary issues exactly the same whether it
remains as now remitted or remitting the action.

C3T29/2/HS	70	3/5/89
Mabo(8)

HIS HONOUR:	Then what would be achieved by entertaining this application this morning?
MR GRIFFITH:	Your Honour, because the process of hearing

this would be directed to the judge being completely

the trial judge who in due course will be receiving

the evidence, dealing with it, hearing legal

argument and giving judgment in the matter.

HIS HONOUR:	That is months down the track, is it not?
MR GRIFFITH:	Perhaps years, Your Honour, at the rate things are widening.
HIS HONOUR:	What would be the advantage of a remitter

in that form?

MR GRIFFITH:  Your Honour, when the matter was issued in

this Court its connection with this Court was

extremely tenuous. The claims against Queensland,

Your Honour, were, on the face, insufficient

in themselves. to give jurisdiction in this Court. So that the substantial claim which was the claim in respect of the land and these immediately

on-shore areas which are internal waters was
an area where this Court, really, had no

jurisdiction. The Commonwealth was joined as

a defendant, Your Honour, with, we would submit,

minor, somewhat tenuous claims made against
it which were sufficient because of the jo1nder
to give jurisdiction to this Court.

As things emerged over the years, Your Honour, and because of parties' realization that the

evidence-gathering process would be difficult,
we have had these years of interlocutory activity

which, of course, were intercepted to some extent

by the passing of the 1985 Act by Queensland

which was the subject-matter of the demurrer

proceedings, so it took three years to get that

issue out of the way and return the status quo,

as it was, before that Act was passed for the

purpose of the claims against Queensland and,

Your Honour, the remitter was made by agreement

between the parties because looking at it in the matters as it was then pleaded, it still

seemed possible for findings of fact to be made

in a way which could bring these important legal
issues in an acceptable form for direct determination

by the Full Court of this Court.

The parties apprehended that could be done

and that is why they sought the consent order
on 24 February 1986 from the Chief Justice.

Your Honour, since then two things have emerged:

one is the complications as to the evidence in

C3T30/l /ND	71	3/5/89
Mabo(8)

respect of the claim as it originally was which have

emerged as deposed to in Mr Shaw's affidavit

and, Your Honour, we refer to the whole of that

affidavit as indicating those difficulties.

HIS HONOUR: 

But how would those difficulties be resolved

or even affected by a remitter in the form
suggested?

MR GRIFFITH: 

Your Honour, what we submit is that if the

judge knows that it is he, ultimately, who has

to make findings of fact and then to make -
determine. all issues as matters of law, he would
obviously adopt a different approach to the process

than if he is acting at all times with an eye

cocked to the needs of the High Court. He has

indicated that in the pages of the transcript

at page 635, I have referred to, where he made

a ruling, he said, with reluctance.

The matters discussed in the transcript

by the references to Justice Deane that my learned

friend, Mr Keon-Cohen, referred Your Honour to,

and then the matter of observation yesterday,

the judge obviously has a problem of approach

because he feels he is confined to the role of

presenting facts in a way appropriate for the

High Court to consider the matter. He is not proceeding on the basis that he is the trial judge to hear and determine the action.

HIS HONOUR:	That is understandable.
MR GRIFFITH:	Your Honour, what we see with these proposed

amendments, and we act on the assumption that

significant amendments will be made to introduce

substantial and original claims for relief against

the Commonwealth to establish rights in rem
to areas of land, sea bed and superj acent waters

which the Commonwealth itself does not claim

as its property, although under international	law it exercises certain rights in respect of
the continental shelf, fisheries and things of
that sort.

Your Honour, there are wide-ranging issues

being opened up by those proposed claims.	They
have been foreshadowed by amended particular

which have served and by recently wide-ranging

informal requests for general discovery as to

matters. We see, Your Honour, the pursuit

of all these issues opening a substantial area
of inquiry that could not only occupy many months,

if not years, of fact finding but also open up

many issues for legal determination, Your Honour,

which we would submit ex facie cannot now be

expected to be brought into a form suitable for findings of
·fact to be made by the justice in the Queensland court for

the matter to cane irrrnediately to this Court for determination.

C3T30/2/ND	72	3/5/89
Mabo(8)

HIS HONOUR:	Mr Solicitor, I think I should say that I have a fairly clear view at the moment that
the application is premature; that the matters to which you have just referred only
seem to me to point up that view. Because,
until these pleadings have settled down, if
they ever do settle down, the range of
issues really cannot be fully assessed and
the implica~ions for your client, and the Court, given a proper picture on which to decide whether there should be any variation
of the remittal order that was made.
MR GRIFFITH:	Your Honour may well be correct in saying

that. The difficulty for us, Your Honour,

is that we have already got half-way into these

amendments with the amendment made in

February. We have got other amendments which

were pr_oposed to be dealt with yesterday and

these issues which have been shortly

ventilated today, Your Honour, seem to us to

have in the answer an order for remitter and

we regard it as appropriate to raise them now.

But, Your Honour is undoubtedly correct that

one could take a more exhaustive view of it when the pleadings and particulars and even

discovery has settled down and it will be

possible then, Your Honour, one would think

with compelling accuracy, to foreshadow that

it would be practically impossible for relevant

findings to be made in the way originally

contemplated to come directly back to the

Full Court. In the context, Your Honour, we

say that there is almost no issue arising under

· the CONSTITUTION. But ex facie, almost all

these issues, Your Honour, apart from, we

would say a great difficulty in respect of a

claim in respect of acquisitions power, which

would seem to be a matter of no great

consequence. as pleaded,or as proposed to be

pleaded. But, there is no particular reason

for the action to remain in this Court at all.

HIS HONOUR:  Well, you --1.iay prove ultimately to be

right, but it seems to me that to take an

application of this seriousness almost on the

run would be a step fraught with all sorts of

unknown consequences.

MR GRIFFITH:  Well, Your Honour, we accept that

observation, other than to say, perhaps, it

should not really be regarded as a very

serious step because the purpose of this

litigation is to have the facts found and for

the legal issues to be determined. And, we

would submit, Your Honour, it just becomes a

matter as to what is appropriate.

C3T31/l/JH	73	3/5/89
Mabo(8)

On any view, there is going to be a trial and

determination of the issue, so that, is any detriment or benefit to anyone in

proposing that there be full remitter;

merely that it is appropriate in all the

circumstances that the action be conducted as

an ordinary action.

HIS HONOUR:  Yes, I describedit as a serious step

because of the length of time that~has taken
place already during which the matter has been

conducted on a particular basis.

MR GRIFFITH: 

Yes, well, Your Honour, as we say, the

serious step for us is after seven years we
get, in effect, these new claims against us!

That is_  what we have to address ourselves.

But, Your Honour really is undoubtedly

correct to say that it would be possible to

take a more complete view when the pleadings

have settled down.  We have, in effect,

anticipated that amendments will emerge in

proper form.  We say the present proposals are

not but we indicated yesterday a form which

might be appropriate for leave to be given and

it was really facing up to that prospect,

Your Honour, and the particulars and request

for discovery that made us realize us that we

had so lost contact with the original exercise

that it seemed appropriate to put before the

Court that this issue had arisen.

HIS HONOUR: 

Thank you, Mr Solicitor.

MR GRIFFITH: 

It is probably best, Your Honour, in view

of	Your Honour's observation for that matter to
be	left as a separate substantive application,
if	any party is so biased.

HIS HONOUR:  I have really no doubt about that, I must

say.

MR GRIFFITH:  Yes, well, Your Honour, I will not pursue

that any further other than to indicate,

Your Honour, that we would not have applied

separately today for that, but it seemed to us

that it was the answer to the two other problems

that had been exposed and that, if nothing else,

Your Honour, that matter is now one which can be drawn together when this matter progressed.

HIS HONOUR:  Thank you, Mr Solicitor. Ml:sWhite, do you

join in this application?

C3T31/2/JH	74	3/5/89
Mabo(8)

MRS WHITE:  Well~ in view of the intimation of

Your Honour, I will not seek to take the

Court's time which, suffice to say, in

proper time it would be an application in

which the State of Queensland would join

because the situation at the remitter

was vastly different, as Your Honour will

perhaps recall. It had been hoped by the

parties to state a case for the Full Court

and an affidavit on the part of Queensland

was prepared which it sought to do - sets out

the facts as perceived by Queensland and

the plaintiffs presented a statement of

fact, which they thought represented - we

could not reach agreement - and it is in the

context of almost, as it were, getting to

a. stage of stating agreed facts for the

Full Court of the High Court, that it broke

down and the remitter was done. Things have

changed so dramatically since the time of

that remitter that we too joined in the

remitter, full of optimism, and the course of
the hearing to date has suggested that that
process of remitting facts of such complexity
without all the benefits of having the full

matter remitted are glaringly obviously

apparent now. And, of course, all" the major

cases which have dealt with similar issues,

like the MILIRRPUM case, before

Mr Justice Blackburn, and TITO V WADDELL, the

ocean island case before Lord Justice Megarr~

they were all properly fully before the trial

judge and there was no difficulty in reaching

conclusions in those cases. So, when the time

seems appropriate, the State of Queensland, as

it is presently advised, will probably join

in with such an application.

HIS HONOUR:  Yes, thank you. Mr Kean-Cohen, I do not

want to hear from you, thank you.

T31 MR KEON-COHEN: If Your Honour pleases.

HIS HONOUR: 

I say nothing about the merits of the course

proposed by the learned Solicitor-General on
behalf of the Commonwealth. I simply say that

at this stage of the proceedings, particularly

while extensive amendments are foreshadowed

on the part of the plaintiffs, it would be
premature to consider altering the basis upon

which remitter took place. It will be for

the parties to consider whether, at some later

stage, such an application is appropriate.

I would see it as an ~pplication of substance that ought to be the subject of a formal

application and for which sufficient time would

clearly need to be set aside for exploration

C3T 32/ 1/ JH	·75	3/5/89
Mabo(8)

of the various issues raised by changing the

remitter from its present form to a remitter

of the entire action to the Supreme Court of

Queensland.

The only substantive order that I have

made then is the order in respect to the amendment
of the parties and the pleadings. What is
sought by way of an order for costs in respect

of today's proceedings? Mr Keon-Cohen, perhaps

I should look to you first.

MR KEON-COHEN:  Your Honour, it might be appropriate to

reserve costs of today's proceedings.

HIS HONOUR:	Do you agree, Mrs White?
MRS WHITE:	Yes, that is the safest.
HIS HONOUR:	Mr Solicitor?
MR GRIFFITH:	Yes, Your Honour.
HIS HONOUR:	Very well. there will be an order in the terms

indicated. There will be a further order that

the costs of today's proceedings be reserved,
the certificate for counsel, and the Court will

adjourn.

AT 12.52 PM THE MATTER WAS ADJOURNED SINE DIE

C3T32/2/SDL	3/5/89
Mabo(8)