Newcrest Mining (W.A.) Ltd v The Commonwealth of Australia

Re: NEWCREST MINING (W.A.) LIMITED
And: THE COMMONWEALTH OF AUSTRALIA and THE DIRECTOR OF NATIONAL PARKS AND
WILDLIFE
FED No. 840
Number of pages - 17
Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1)

CATCHWORDS

Practice and procedure - venue - balance of convenience - matter remitted from High Court - Chief Justice to direct Registry for filing - matters to be considered in choice of venue - witnesses in different cities - matter of considerable urgency - whether presumption in favour of plaintiff's preferred venue - whether choice of counsel resident in a particular city relevant - importance of efficient administration of court.

Federal Court Rules (Cth), O51A

Federal Court of Australia Act s15

National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155, applied.

HEARING

MELBOURNE

#DATE 29:10:1992

Counsel for the applicant: Dr G.A. Flick

Solicitors for the applicant: Clayton Utz

Counsel for the respondent: Mr S.J. Gageler

Solicitors for the respondent: Australian Government Solicitor

ORDER

1. The applicant is to file and serve a Notice to Admit and a Notice

to Produce directed to the respondents on or before 6 November 1992.

2. The respondents are to file and serve any request for particulars

of the Amended Reply on or before 6 November 1992.

3. The respondents are to reply to the Notice to Admit and the

applicant is to reply to the respondents' request for particulars on or before 18 November 1992.

4. Subject to any further order by the trial judge, the evidence at

the trial of this matter is to be by way of affidavit.

5. The applicant is to file and serve its affidavits on or before 30

November 1992.

6. The applicant is to give discovery by 30 November 1992.

7. The respondents are to file and serve any affidavits and produce

any documents in answer to the Notice to Produce by 29 January 1993.

8. The applicant is to file and serve its affidavits in reply, if

any, on or before 5 February 1992.

9. The matter is to be set down for hearing on 15 February, 1993, in

Perth.

10. The order of the Honourable Chief Justice Mason, made on 8 October

1992 is to be filed in the Western Australia District Registry of this Court.

11. Order 51A rule 2(2) and rule 3 shall not apply to this proceeding. 12. The costs of this application are reserved. Orders numbered 1 to 3, 5 to 8 and 12 are made with the consent of the parties.

JUDGE1

BLACK C.J. The applicant, Newcrest Mining (W.A.) Limited ("Newcrest") began an action in the High Court of Australia in February 1992 claiming a declaration that the provisions of the National Parks and Wildlife Conservation Act 1975 and certain proclamations made under that Act are invalid and of no effect insofar as they purported to vest in the Director of National Parks and Wildlife ("the Director") land over which certain mining leases ("the mining leases") existed, and insofar as they purported to prevent the carrying out of mining operations on that land. Newcrest also sought a declaration that it is presently entitled to exercise all rights granted by the mining leases, including the right to carry out mining operations on the land over which the mining leases exist. The writ was filed in the Sydney office of the High Court Registry.

In its amended statement of claim in the High Court action, Newcrest alleged that by proclamations made in November 1989 and June 1991 the Commonwealth of Australia purported to vest in the Director various parcels of land by adding them to the Kakadu National Park pursuant to the provisions of the National Parks and Wildlife Conservation Act 1975. Newcrest claims that the proclamations are invalid by reason of s.51(xxxi) of the Constitution and that they are also invalid by reason of the operation of s.122 of the Constitution and s.50(2) of the Northern Territory (Self Government) Act 1978. Newcrest also claims that the purported acquisitions were made solely for the purpose of obtaining World Heritage listing for Kakadu National Park.
The amended statement of claim contains allegations about the renewal and transfer of the mining leases, upon which Newcrest bases its contention that it had property in the leases which was acquired by the Commonwealth. Newcrest claims that the leases were transferred from BHP Minerals Limited to Newcrest in 1987. It also claims that the mining leases were renewed at various times between 1978 and 1989.
In their defence, the respondents allege that the mining leases were never properly transferred from BHP Minerals to Newcrest, because consent to such transfer had to be given by the Commonwealth or by the Administrator of the Northern Territory under the terms of the leases and was not given. They allege that the mining leases have expired and have not been renewed. They further allege that the Ministers of the Northern Territory Government have no authority relating to the mining of "prescribed substances" under the Atomic Energy Act 1953, and in particular were prohibited from renewing or consenting to the transfer of the mining leases. The respondents deny that the only object of the proclamations was to facilitate Australia carrying out its obligations under the World Heritage Convention.
Newcrest then filed a reply. One of the allegations in the reply was that the Commonwealth and the Director are estopped from claiming that the mining leases had expired, on the basis of various representations alleged to have been made by the respondents that Newcrest was the lessee of the mining leases, that the leases continued to exist and that Newcrest could exercise mining rights conferred by the leases upon the performance of various environmental and regulatory requirements.
On 8 October 1992 an application was made on behalf of the Commonwealth and the Director that part of the matter before the High Court be remitted to this Court pursuant to s. 44(2A) of the Judiciary Act 1903. The Chief Justice of the High Court ordered that:

"That part of the case that comprises the issues in the case other than the question whether the proclamations made under section 7(8) of the National Parks and Wildlife Conservation Act 1975 (Commonwealth) published in the Commonwealth of Australia Gazette on 12 June 1987 and 22 November 1989 and 24 June 1992 are invalid by reason of section 51(31) and section 122 of the Constitution be remitted to the Federal Court of Australia pursuant to section 44(2A) of the Judiciary Act."

On the hearing of the remitter application Newcrest sought an order that the part of the matter that was remitted to this Court be remitted to the Western Australia District Registry but that application was opposed by counsel for the Commonwealth and the Director, who submitted that the matter should be remitted to the New South Wales District Registry. After hearing argument the Chief Justice declined to make any order about the registry to which the matter was to be remitted and left that question to be decided by the Chief Justice of this Court under O51A r1(2) of the Federal Court Rules. Order 51A r1 provides:

"(1) A sealed copy of the order of the High Court, remitting a matter, or any part of a matter, to the Court shall be filed in the District Registry named in the order of remittal.

(2) In the absence of a specification of a District Registry of the Court in a matter or part of a matter in the order referred to in sub-rule (1), the Chief Judge may direct that the order shall be filed in a particular District Registry."

An amended reply, repleading the claim of estoppel, has now been filed in this Court in the remitted part of the proceeding.
The matter before me is an application by Newcrest under O51A r1(2) for a direction that the order of the High Court be filed in the Western Australia District Registry of this Court and an application that the proceeding be expedited. The Commonwealth and the Director oppose the first application and contend that the order should be filed in the New South Wales District Registry since Sydney would, they argue, be the most convenient venue for the hearing.
When a direction is made under O51A r1, certain consequences follow, which are set out in Rule 2:

"(1) The Registrar shall affix a notice to the High Court's order which shall be allotted a serial number as though the order was an application filed in the Registry.

(2) The notice shall bear the date for a directions hearing.

(3) The notice shall bear a note that before taking any step in the proceeding a party, other than the applicant, must enter an appearance in the Registry unless he has already entered an appearance in the High Court.

.."

Order 30 r6 provides:

"(1) Subject to sub-rules (2) and (3), unless the place of trial has been fixed by the Court, the trial of a proceeding shall be at the proper place.

(2) The Court on the application of a party or of its own motion may direct that the trial of a proceeding be fixed at a place other than the proper place.

(3) In this rule a reference to the trial of a proceeding shall include a reference to any interlocutory hearing in the proceeding."

For the purposes of the Rules, O1 r4 provides:

"'proper place' in relation to any proceeding-

(a) where there has been no transfer means the place at which the proceeding was commenced;

(b) where there has been a transfer means the place to which the proceeding was transferred."

This matter has not, strictly speaking, been commenced in the Federal Court. Commencement is governed by O4 r1 which provides:

"(1) Except as otherwise provided in these Rules all proceedings in the Court's original jurisdiction shall be commenced by filing an application."

Order 51A r2 instructs the Registrar to treat an order of the High Court as an application and it is therefore to be concluded that once a direction is made that an order be filed in a particular registry, that registry will be the "proper place" for the purposes of the Rules. The proceeding would then ordinarily progress to a hearing in the city of that registry, subject to the power of the Court to order otherwise.
The leading case in this Court about choice of venue as between different registries is National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155, a decision of a Full Court constituted by Bowen C.J. Woodward and Lockhart JJ. That case raised the question of the proper principles to be applied in deciding the place at which a proceeding or part of a proceeding in this Court shall be conducted or continued. The question arose on a motion for leave to appeal from an interlocutory judgment of a single judge dismissing motions that the trial of a proceeding be fixed for Sydney, the proceeding having been commenced in the Court's Victoria District Registry. Attention was therefore directed to s.12 and to s.48 of the Federal Court of Australia Act 1976 and to the provisions of O1, r4, O10 r1 and O30 r6 of the Federal Court Rules. The Full Court observed the Federal Court was a court of wide jurisdiction throughout Australia whose judges may sit, whether as Full Courts or as single judges, at any place in Australia and that the Court has registries in each of the capital cities of the States and the Territories. It observed too that the power conferred by s.48 of the Federal Court of Australia Act recognized the national character of the court. It rejected, as inappropriate to the resolution of venue questions in the Federal Court, the "manifest preponderance of convenience test" (see at 167) and expressed the applicable principles as follows:

"The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely." (At 162.)

Although, as I have said, National Mutual Holdings Pty Ltd v Sentry Corporation was a case essentially involving an application for a change of venue, I consider that the principles applied in that case, reflecting as they do considerations flowing from the distinctive national character of this Court, should be applied by me in determining an application under O51A r1. Such applications are not of course applications for a change of venue but they are applications that will determine where the proceedings are to be conducted in the absence of any further order. The conferral by O51A r1 specifically upon the Chief Justice of a power to direct that the order may be filed in a particular registry reflects the relevance of the efficient administration of the Court in determining such a question: cf. Federal Court of Australia Act s15.
This proceeding is the remitted part of an action commenced in the High Court of Australia in the Sydney office of the Registry of the High Court but it was submitted by counsel for Newcrest that due weight should be given to the circumstance that had Newcrest known that the High Court would remit factual matters, requiring the calling of present and former officers of Newcrest, it would have commenced the proceeding in the Western Australia District Registry of this Court. In that event, it was said, due weight would have been given to the applicant's choice of venue in accordance with the principles in National Mutual Holdings Pty Ltd v Sentry Corporation because the starting point would have been that the proceeding had been commenced at a particular place and the question would have been asked: why should there be a change?
I consider that such an approach would not be correct. The fact is that the proceeding was not commenced in this Court; part of it has now been remitted to this Court and there is no question of disturbing a choice that has already been made. But it will of course be immediately apparent that the factors that it is said would have led Newcrest to commence a proceeding in the Western Australia District Registry of the Court are relevant matters to be considered, along with others, in determining the choice of registry that must now be made.
It was also submitted that I should disregard the fact that the parties have retained senior and junior counsel who are resident in eastern Australia and will continue to retain those counsel in the remitted part of the case whatever decision may be made about the venue. These are the same counsel who were retained, and no doubt will continue to be retained, in the High Court action. Although in some cases the choice of counsel may be a matter to be given little or no weight in deciding questions of venue, as for example where a matter is simple or routine, the circumstances of this case are such that it is obviously reasonable for the parties to desire to continue to retain their present counsel and I consider that to be a matter proper to take into account here. To approach the matter in this way has nothing to do with the convenience of counsel as such; the focus is upon the legitimate interests of the parties.
I now turn to the application to the present case of the principles to which I have referred.
The difficulty to be faced at the outset is that although both parties propose to call a number of witnesses the preparation of the case is in its early stages. The evidence in chief will be on affidavit but the preparation of the affidavits has yet to begin and it is simply not possible to say to what extent the witnesses will be required for cross-examination or whether, in some instances, they will be required to attend for cross-examination at all.
Thus, although each party proposes to call witnesses who occupy important positions and most are based on either the eastern or western seaboard of Australia, the parties frankly acknowledge that it is not possible to say what balance of convenience, so far as witnesses are concerned, will ultimately emerge. But it does seem likely that, wherever the hearing takes place, senior officers of all the parties may be required to attend the hearing, at least when the factual issues are being dealt with, to give instructions. They may also desire to be present during the hearing of legal argument.
What is undoubted, however, is that the hearing, which presently has an estimated duration of between two and three weeks, will involve substantial legal argument that may be presented equally well in either Sydney or Perth but which, if presented in Perth, would involve substantial added expense because all counsel reside in Sydney or Canberra. The solicitors having the conduct of the case on behalf of the parties also reside in eastern Australia.
Clearly, it is not possible to resolve this question at the present stage by considering the relative disruption to the affairs of the parties consequent upon the requirement for their witnesses to travel interstate to give evidence and were it not for one additional set of circumstances, that bear upon each of the three separate matters referred to by the Full Court in the passage I have cited from the Court's judgment in National Mutual Corporation Pty Ltd v Sentry Corporation at 162, I would be inclined to the view that the order of the High Court should be filed in the New South Wales District Registry of this Court, leaving it open to the parties to apply for a change of venue for the hearing when the nature and extent of the factual controversy has become clear. The circumstances to which I refer are those that support Newcrest's application for an expedited hearing and it is to matters raised by that application that I now turn.
Newcrest submits that the hearing of the proceeding should be expedited and the Commonwealth and the Director do not oppose the application for an expedited hearing. In my view the hearing should be expedited. The part of the proceeding that remains in the High Court raises questions of great public importance about the validity of proclamations made under the National Parks and Wildlife Conservation Act 1975, and Newcrest's claim to be entitled to carry out mining operations in Kakadu National Park. The determination of those questions awaits the decision of the part of the case remitted to this Court. It is clearly important to all parties that the resolution of those questions not be delayed.
As well, there is the question of Newcrest's appearance before the Aboriginal Land Commissioner in an Inquiry pursuant to s50(a)(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 into the Jawoyn (Gimbat) Area Land Claim (Claim No 111). The mining leases are in respect of land that is within the area of the land claim. Newcrest is appearing before the Aboriginal Land Commissioner to oppose the claim and anticipates that it will incur substantial legal costs in doing so. Newcrest says that if it ultimately succeeds in the action it has brought in the High Court it will again be entitled to undertake mining operations under the mining leases and in that event will continue to oppose the land claim. If, however, it is ultimately unsuccessful it will remain prohibited from conducting mining operations by reason of s.10(1A) of the National Parks and Wildlife Conservation Act and it says that in that event it is highly unlikely that it would either continue its opposition to the land claim or wish to take any further part in the Inquiry. It proposes to seek an adjournment of any further part of the Inquiry until after the date on which the High Court action is finally determined, an earlier application for such an adjournment having been refused by the Commissioner.

If the Commissioner grants an adjournment the land claim will be delayed but if he does not Newcrest will no doubt continue to take part in the Inquiry and incur expense in doing so. In giving his reasons for refusing the earlier application for an adjournment the Commissioner said, in relation to Newcrest's argument that there would be difficulty in knowing whether the company could claim to have suffered detriment until the outcome of the High Court action could be known, that if the outcome of that action were not known at the time he came to report, the appropriate course for him to adopt would be to report that fact and to report what the possibilities were, contingent upon the outcome of the pending litigation. The Commissioner did not see that as a valid reason for delaying the conduct of the claim pending that outcome. But whatever the outcome of the proposed further adjournment application, the progress of the land claim and Newcrest's participation in it clearly provides an additional reason for the part of the case remitted to this Court to be heard expeditiously.
In all the circumstances, I conclude that there is a strong case for an expedited hearing.
Having reached the conclusion at the hearing of these applications that an expedited hearing should be ordered, I invited counsel to confer with a view to their agreeing upon directions that could be made by consent for the purpose of enabling a date to be fixed for a hearing to commence not earlier that mid-February 1993. Agreement was reached and directions can be given that will enable the matter to be listed for hearing on or after 15 February 1993.
Having determined that there should be an expedited hearing and that directions should be given that would enable the hearing to commence less than three months from now, the ability of this Court to hear the remitted matter at an early date in either Perth or Sydney becomes a relevant matter to take into account in determining the registry in which the order of the High Court should be filed. In the administration of a national court, which has judges resident in different States and Territories, occasions will arise when a case may able to be listed for early hearing in one city but not in another. This is such a case. An early hearing can conveniently commence in Perth, but not in Sydney. The estimated duration of the case, presently 2 to 3 weeks, but subject to revision, bears upon this aspect of the matter.
This does not of course mean that the Court will force unwilling parties to a hearing in a city that is otherwise an inconvenient venue or that a party will be able to continue proceedings in a chosen venue that is not appropriate. But that is not the situation here.
Newcrest has a strong connection with Western Australia. It is incorporated there and although its head office is in Victoria, its principal operational office is in Perth. Its principal asset, a 50% holding in the Telfer Gold Mine, is located near Perth. Although the preparation of its case on the factual issues is not complete, it has identified two principal witnesses, one of whom resides in Perth and the other of whom will be located in Perth from January 1993. Both witnesses have or will have employment responsibilities in connection with mines in Western Australia. The extent of their evidence is of course not yet known.
As part of his argument that the High Court's order ought to be filed in the Sydney registry, counsel for the Commonwealth and the Director pointed to the additional costs that would be incurred if a directions hearing or an interlocutory application were held in Perth and he submitted that such matters could more conveniently be dealt with in Sydney. Having regard to the directions that I now propose to give, however, it may well be that no further directions will be required before the hearing. If further directions are required or some interlocutory application is to be brought, it is by no means inevitable that it should be heard in Perth. A telephone directions hearing could be arranged through the Western Australia District Registry of the Court at which the venue for the hearing of further directions or any interlocutory application could be determined. Order 30 r6(3) of the Federal Court Rules contemplates that interlocutory applications will not necessarily be heard in the Registry in which the application was originally filed.
Given the strength of the case for an expedited hearing and that the desirability that a date and place for the hearing be fixed now, I have concluded that in all the circumstances, bearing in mind the interests of the parties, the ends of justice in the determination of the issues between them and the most efficient administration of the Court, I should direct that the order of the Chief Justice of the High Court be filed in the Western Australia District Registry of this Court and that I should give the directions to bring about an early hearing of the proceeding to commence in Perth on 15 February 1993.
I am fortified in this conclusion by the fact that the Court can, and does in appropriate cases, conduct part of a hearing in one city and continue it in another. Whether it would be appropriate to do so in this case will of course be a matter for the trial judge to determine in the light of the circumstances as they then exist.
I therefore order as follows:
1. The applicant is to file and serve a Notice to Admit and a Notice

to Produce directed to the respondents on or before 6 November 1992.

2. The respondents are to file and serve any request for particulars

of the Amended Reply on or before 6 November 1992.

3. The respondents are to reply to the Notice to Admit and the

applicant is to reply to the respondents' request for particulars on or before 18 November 1992.

4. Subject to any further order by the trial judge, the evidence at

the trial of this matter is to be by way of affidavit.

5. The applicant is to file and serve its affidavits on or before 30

November 1992.

6. The applicant is to give discovery by 30 November 1992.

7. The respondents are to file and serve any affidavits and produce

any documents in answer to the Notice to Produce by 29 January 1993.

8. The applicant is to file and serve its affidavits in reply, if

any, on or before 5 February 1992.

9. The matter is to be set down for hearing on 15 February, 1993, in

Perth.

10. The order of the Honourable Chief Justice Mason, made on 8 October

1992 is to be filed in the Western Australia District Registry of this Court.

11. Order 51A rule 2(2) and rule 3 shall not apply to this proceeding. 12. The costs of this application are reserved. Orders numbered 1 to 3, 5 to 8 and 12 are made with the consent of the parties.

[1992] FCA 840

29 OCTOBER 1992