Newcrest Mining (WA) Limited v The Commonwealth of Australia

[1992] HCATrans 293

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S16 of 1992

B e t w e e n -

NEWCREST MINING (WA) LIMITED

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

and

THE DIRECTOR OF NATIONAL PARKS

AND WILDLIFE

Second Defendant

Application to obtain

resolution of form of remitter

Newcrest(3) 1 8/10/92

MASON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 8 OCTOBER 1992, AT 9.31 AM

Copyright in the High Court of Australia

SIR M. BYERS, QC: If Your Honour pleases, I appear with my

learned friend, MR G.A. FLICK, for the plaintiff in

the action. (instructed by Clayton Utz)

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

I appear with MS L. GLASSON for the defendants,

Your Honour. (instructed by the Australian

Government Solicitor)

SIR MAURICE:  Your Honour, why this matter is before

Your Honour today is to obtain the resolution of,

first of all, the form of the order of remitter.

What we would seek to obtain from Your Honour - if

I could hand Your Honour up an order that:

the issues in the case other than the question

whether the proclamations made under

section 7(8) of the ..... Act, published in the

Commonwealth of Australia Gazette on 12 June

1987, 22 November 1989 and 24 June 1991 are

invalid because of the application of the

Constitution.

Now, Your Honour, the order that was suggested with

the Deputy Registrar was an order which referred

only to section Sl(xxxi).

HIS HONOUR:  Am I right in thinking that the order you have

just handed up is identical with the order prepared

by the Registrar down to the words "are invalid"?

SIR MAURICE:	Yes, Your Honour.
HIS HONOUR:	And the change in your draft is in what

follows?

SIR MAURICE:  Yes, Your Honour, and only in so far as it

omits a reference to section Sl(xxxi) and widens it

to say "the application of the Constitution", that

is all.

HIS HONOUR:  You favour the words "because of" instead of

"by reason of", what is the reason for that?

SIR MAURICE:  Your Honour, no particular reason. I am quite

happy, Your Honour, just - - -

HIS HONOUR:  I have always myself objected to "because of",

it seems a rather curious expression.

SIR MAURICE:  Your Honour, I have no, as it were, lasting affection for the word "because of". I am quite

happy - more than happy with the words "by reason

of II•

Newcrest(3) 2 SIR M. BYERS, QC 8/10/92

HIS HONOUR: Yes. For a moment, I thought that amendment

was the focal point of this application.

SIR MAURICE:  Your Honour is always very kind. Your Honour,

that would leave open the argument that the

plaintiff wishes to put. I can, if necessary, hand

up to Your Honour a written outline which we left

with the papers some considerable time ago, but
which I rather rashly invited Your Honour not to

read.

HIS HONOUR:	No.
SIR MAURICE:	And Your Honour, no doubt, accepted on that

invitation.

HIS HONOUR:  But coming back to this draft of your's, why is

the word "and" in after "the Constitution" in the

second-last line?

SIR MAURICE:  I do not know, Your Honour. It does look a

little awkward if one just takes it out.

HIS-HONOUR:  And you have switched "pursuant to

section 44(2A)" down towards the end.	I think that
is probably better.

SIR MAURICE: If Your Honour pleases.

HIS HONOUR:  Now, can I ask the Solicitor at this stage

whether he has any objection to the omission of the

words that identify Sl(xxxi},

MR GRIFFITH:  Your Honour, our difficulty when this proposal

was brought to us is that Your Honour had expressed

the terms of the order and we thought we were not

in a position to agree to a variation to it.

HIS HONOUR:  That is right. I had a look at the transcript,

Mr Solicitor, and in the course of your address I

You voiced no objection to it and then I think -	did suggest that this order might be appropriate.	although this may be unkind to Sir Maurice, and I
know that I will be accused of always being
unkind - I do not think he objected to that form of order at the time.

MR GRIFFITH: Yes. And, Your Honour, at page 2 of the

transcript Your Honour did say that:

The one point that is worthy of the attention of this Court at this stage is the Sl(xxxi)

point.

HIS HONOUR:  Yes, but as I understand it - Sir Maurice can

correct me if I am wrong about this - although I

have viewed the point that Sir Maurice wishes to

Newcrest(3) 8/10/92

raise as essentially a Sl(xxxi) point, it is, I

suppose, possible that it can be regarded as not

merely a Sl(xxxi) point but, really, a section 122

point that contains within it, that section,

something similar to Sl(xxxi) but, in effect, the

argument would not take its force from Sl(xxxi)

directly.

MR GRIFFITH:  Yes. My learned friend did say that,

Your Honour, at page 8 of the transcript and I

think it is in the pleading.

HIS HONOUR:  Yes. Now, I think in the form of order I

suggested to you and in which he subsequently

acquiesced, insufficient attention may have been

given to that way of putting the argument.

MR GRIFFITH:  Your Honour, what concerns us slightly, just

dealing with the way it should be expressed is,

Your Honour, there is this estoppel point which is

floating.

HIS HONOUR:  I do not want to have anything to do with that.

MR GRIFFITH: That is the point, Your Honour. It might be

put, Your Honour, that on an estoppel point pleaded

as against the Commonwealth that there was a

constitutional point there, as it were, if we use

the expression "application of the Constitution"

and to avoid that possibility, Your Honour, it may

be more appropriate to add to the reference in

Your Honour's order to "section Sl(xxxi)"

section 122, rather than having a generic

description to the Constitution.

HIS HONOUR:	Would you object to that, Sir Maurice?
SIR MAURICE:	Only so far as the ambit of section 122,

Your Honour, may be a matter of implication, so

that - - -

HIS HONOUR:  But if it is, it is embraced within 122.

SIR MAURICE: In section 122, yes. Well, I have no problem

on that basis, Your Honour. I cannot see, if I may

say so, with respect, how the Commonwealth can

assert a constitutional immunity from estoppel but,

however, that is - - -

HIS HONOUR:  No. I cannot see that if we include 122 as

well as Sl(xxxi) that that will exclude the

argument that you want to put.

SIR MAURICE:	No, Your Honour.
HIS HONOUR:	I think what we will do is "are invalid by

reason of" - do you want the word "application"? I

Newcrest(3) SIR M. BYERS, QC 8/10/92

would have thought "Sl(xxxi) and 122 of the

Constitution" are good enough.

SIR MAURICE:	Yes, Your Honour.
HIS HONOUR:	You would accept that, would you not,

Mr Solicitor?

MR GRIFFITH:	Yes, Your Honour.
HIS HONOUR:	"by reason of section Sl(xxxi) and section 122

of the Constitution". Yes, all right, I will amend

the order in that way.

SIR MAURICE:  If Your Honour pleases. The other question,

Your Honour, is really a question of the plaintiff

seeking an order from Your Honour that the matter

be remitted to the Perth Registry of the Federal

Court. The reason for that is this, Your Honour -

and it is supported by an affidavit that has been

filed which I will ask Your Honour's leave to read

if necessary. It is an affidavit, Your Honour, of

David Paul Cowling of 6 October and it deals with

the plaintiff's desire to call a

Mr Richard J. Carter who was - if Your Honour goes

over to page 2:

The Plaintiff is presently preparing the

factual evidence which it will be presenting to the Federal Court at the hearing at first instance of this matter. All of this evidence

relates to the estoppel/inducement matters
raised in paragraph 20 of the Reply filed by

the Plaintiff.

This preparation so far conducted indicates

that the Plaintiff will be calling a number of

witnesses. Of the potential witnesses so far

identified, none are resident in New South

Wales.	The Plaintiff does not expect to call
any witnesses who are resident in New South

Wales.

That is rather repetitious.

The principal witness so far identified is

Mr Richard J. Carter. Mr Carter was a

Director and the Chief Executive Officer of the Plaintiff for the period -

and he sets it out as the relevant period.

(when the Plaintiff was a wholly owned

subsidiary of The Broken Hill Proprietary

Company Limited and was known as BHP Gold

Limited). This is the principal period during which the Plaintiff wishes to argue that the

Newcrest(3) SIR M. BYERS, QC 8/10/92

Commonwealth made various representations to

the Plaintiff, as to the validity of the

Plaintiff's mining leases, which were relied

upon by the Plaintiff and/or which induced the

Plaintiff to continue to expend significant moneys in connection with the mining leases.

Mr Carter is presently Group General Manager

of BHP Iron Ore which is the iron ore division

of BHP Minerals Limited, a wholly owned

subsidiary of The Broken Hill Proprietary

Company Limited. Mr Carter has specific

responsibility for the Mt Newman, Goldworthy

and Koolan Island iron ore operations and the

iron ore development presently being

undertaken in Yandicoogina. All of these

areas are located in Wester~ Australia, and

the principal place of empl.)yment and the

residence of Mr Carter is Perth. BHP Iron Ore

employs approximately 3500 persons and in the

financial year ended 31 May 1992 had sales

revenues of approximately $1.1 billion.

In addition to the above responsibilities,

Mr Carter is presently a director of BHP Iron

Ore Limited, BHP Iron Ore Pty Limited, BHP

Iron Ore (Goldworthy) Limited, BHP Minerals

Limited and Pilbara Iron Limited.

Mr Carter has indicated that his absence from prejudice him in his employment obligations.

So, section 44(2A) empowers Your Honour, of course, to remit to the Federal Court which would

necessarily involve, of course, that Your Honour

could remit it to any registry of the Federal

Court. Indeed, so much is recognized by the rules

of the Federal Court. Rule 51A of the Federal
Court Rules says where the order of the High Court

nominates a registry, then the matter is to be

determined in that registry, and where the order of

the High Court does not nominate a registry, then
the Chief Judge - that is the language of the rule

at the time - may decide the venue.

Now, Your Honour, what the plaintiff wishes to

do from that affidavit is to go straight to the

Perth District Registry with as little a delay as

possible, and we understand that it is the practice

of the Deputy Registrar here to remit matters to

the Sydney Registry and that unless we obtain some

indication from Your Honour, that that would be

done in this case. So, that is the reason why we

are presently - - -

Newcrest(3) 6 SIR M. BYERS, QC 8/10/92

HIS HONOUR:  I thought that the practice of the Court was to

leave the choice of venue registry to the Federal

Court itself, in other words, produce a situation

in which the Federal Court itself determined in

which of its registries an action would be

remitted.

SIR MAURICE:	Yes, Your Honour.
HIS HONOUR:	I can well understand that administratively it

is the practice of the Deputy Registrar to send the

papers to the local registry, the New South Wales

Registry but, of course, that is what happens at an

administrative level. There is always the power of

the Chief Judge or a judge of the Federal Court to

determine that the matter will be heard and, in

effect, processed thereafter in a particular

registry.

SIR MAURICE:  Yes, Your Honour. Rule 51A, which is the

relevant rule of the Federal Court, says that. It

starts off saying where the order of remitter

nominates.

HIS HONOUR:	Yes.
SIR MAURICE:	Now, what we are seeking from Your Honour,

with respect, is that there should be a nomination

because naturally there is, from the plaintiff's

point of view, some urgency about it and also from

the plaintiff's point of view, there is the

presence of its main witness in Perth and,

Your Honour, there is, in our respectful

submission, no reason why Your Honour should not
make an order which would eliminate unnecessary
expense from the point of view of the plaintiff

going to the Chief Judge or Chief Justice, I think

he is called these days, and asking him, which

would involve one going down to Melbourne and so

on, and so we would ask Your Honour, with respect,

that there being nothing in opposition from the

Solicitor, at any rate in any written form, that

Your Honour should make the order or, in any event,

indicate to the Deputy Registrar that it should go

to the Perth registry.

HIS HONOUR:  But what use would that be, just to indicate to

the Deputy Registrar that he ought to send the

papers to the Perth registry?

SIR MAURICE:	The power of persuasion would be enormous.
HIS HONOUR:	I suppose I could say that to him outside the

Court room, Sir Maurice.

Newcrest(3) 7 SIR M. BYERS, QC 8/10/92

SIR MAURICE:  Of course, the desirable course would be for

Your Honour to make the order. If Your Honour

pleases.

HIS HONOUR: Yes. Yes, Mr Solicitor?

MR GRIFFITH:  Your Honour, my answer is oral rather than

written. We say just the usual practice of the

Court remitting and leaving it for the Federal
Court to sort out the appropriate venue should be followed. So, that is our principal answer, Your

Honour, to my learned friend's application.

However, Your Honour, we would note in passing

that we would submit to Your Honour that this

affidavit that my learned friend relied upon, his

captious points - if I could pick up Your Honour's

expression used last time - for remitter to Perth,

Your Honour, seems to us an absurd suggestion that

one should say the convenience of the manager of

the plaintiff with the assertion, Your Honour,

which we have not bothered to test because it is so

obviously one that cannot be sustained, that he
cannot be absent for more than three days from

Perth, should control the venue of a case which, with all its other connection, is a connection with, we submit, obviously with Sydney and/or

Canberra.

Your Honour, all the legal representations,

solicitors and counsel, are based in Sydney. So

far as witnesses are concerned, we have identified

10 witnesses, Your Honour, four of whom are in

Canberra and the others are either in Canberra or

in the Northern Territory. For the defendant,

Your Honour, there is absolutely no connection with

Perth and, we submit, Your Honour, apart from the

fact that this manager is in Perth, there is

absolutely no connection with Perth.

HIS HONOUR:  Mr Solicitor, obviously I do not want to get

into a position where I am going to determine

competing claims about convenience and I gather

what you are saying is that if I were to do so you

would want to put on an affidavit and set out the

facts that you have just stated.

MR GRIFFITH:  We did not want to bother Your Honour with

the - - -

HIS HONOUR:  No, no, I realize that. You are being kinder

to me than I am to Sir Maurice. You would say that

if it came to a contest, the balance of

convenience, on your view of the case, would favour

Sydney or Canberra rather than Perth.

Newcrest(3)	8/10/92
MR GRIFFITH:	Yes, and if we could deal with the cost issue,

Your Honour, the costs of flying this one witness

over for a day or so to give that witness's
evidence must be outweighed by the cost of this

array of talent, other than myself, Your Honour, attending at Perth for the duration of the case.

We say that is self-evident. But let us leave it

for the Federal Court to make - - -

HIS HONOUR:  Are there any other advantages that Perth has?

MR GRIFFITH: Absolutely none, Your Honour. All the

documents are either in Canberra or in Darwin,

Your Honour. There should be nothing except a

certificate of incorporation in Perth that is

relevant and this witness, Your Honour, that, one

could imagine, if we cross-examined him, we would

find he was around Australia on his personal jet

every other day.

HIS HONOUR:  Yes. Well, it does seem to me, subject to what

Sir Maurice says, that the type of consideration

that you are seeking to raise is a matter in which

a Federal Court judge is peculiarly skilled in

resolving.

MR GRIFFITH: That is our submission, Your Honour.

SIR MAURICE:  Your Honour, my friend's opposition is, of

course, based on the fact that he has not

condescended to read the affidavit which makes it

quite clear that the witness he referred to is not

employed by the plaintiff.

qis HONOUR: That is true, but none the less, Sir Maurice,

it does seem to me to boil down to a rather ugly

distasteful contest about convenience based on

number of witnesses, expense of transporting

witnesses to a particular place, as against the

expense of transporting counsel and legal advisers

to a particular place.

SIR MAURICE:  Your Honour, we would submit, really, that the

consideration of counsel has got nothing to do with

the question of venue but - - -

HIS HONOUR: Well, costs - - -

SIR MAURICE:  If Your Honour does not wish to debate it I do

not want to force or try to force a debate on it.

HIS HONOUR:  No. All I can say, Sir Maurice, is on the

evidence before me it would seem that an order

could be made of the kind that you have requested

but I am not satisfied in my own mind that the

evidence before me comprehensively covers all the

considerations in relation to convenience.

Newcrest(3) 9 SIR M. BYERS, QC 8/10/92

SIR MAURICE:  Your Honour, that is because my friend has not

filed any.

HIS HONOUR: True.

SIR MAURICE:	And it is not our fault.
HIS HONOUR:	No, no, I am not suggesting it is.
SIR MAURICE:	It is because he has been singularly - what

shall we say: singularly slow or reluctant to

nominate whether he is going to call any witness,

and if so, who, and from where. So, really, he

should get no advantage from such a tactic and we

would quite oppose it, Your Honour, with great

respect. But Your Hc~our has indicated

Your Honour's point of view; we have indicated

cur's. That is all I can do.

HIS HONOUR:  Yes. I do not propose to make any order in

relation to the identification of the registry to

which the matter should be remitted. I shall leave

that as a matter to be determined by the Federal

Court. But I would say, as I have said in the
course of argument, that on the evidence before me

the affidavit does suggest that the matter could be

remitted to the Western Australian registry.

However, I am not satisfied that the affidavit

comprehensively covers all the issues that might

arise in determining what is an appropriate venue

for the determination of the matter in the Federal

Court.

SIR MAURICE: If Your Honour pleases.

HIS HONOUR:	Yes, Mr Solicitor?
MR GRIFFITH:	Your Honour, could I make one point in reply

to my learned friend? Your Honour, we are not at
the point where we say that the question of

evidence is even yet raised on the estoppel point

because we have got that outstanding pleading issue

which remains for the Federal Court before we get

to the evidence.

HIS HONOUR: Yes. Well, that is a matter I have in mind.

MR GRIFFITH: Your Honour, we ask for costs on my learned

friend's first application because we say that it

was an obvious oversight that my learned friends

did not point out the terms of the order when

Your Honour pronounced it to embrace this matter

and we, of course, could not consent to the

variation, Your Honour, being the terms used by

Your Honour which were assented to by my friend on

19 August.

Newcrest(3) 10 8/10/92

HIS HONOUR:	What do you say, Sir Maurice?
MR MAURICE:	Your Honour, they must be running short of

cash. But, Your Honour, all I can say is that the

attitude of the Commonwealth in this case has been quite extraordinary, including this one. However,

Your Honour, there is nothing I can say because

what my learned friend says is perfectly correct,

just as his silence in that event was perhaps
significant. But, Your Honour, there is nothing

further I want to say about that.

HIS HONOUR:  It seems to me that the amendment to the order

which has been the subject of contention before me

this morning is something that could have been

resolved by consent between the parties. I would

have been quite prepared to amend the order, had a

consent order in appropriate terms been submitted

to me.

In these circumstances, it would not be

appropriate to make an order for the costs of the application other than an order that the costs of the application be costs in the cause, and that is

the order that I make.

SIR MAURICE: If Your Honour pleases.

AT 9.55 AM THE MATTER WAS ADJOURNED SINE DIE

Newcrest(3) 11 8/10/92