Newcrest Mining (WA) Limited v The Commonwealth of Australia

[1992] HCATrans 236

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

For directions

Newcrest(2) 1 19/8/92

MASON Cd'

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY. 19 AUGUST 1992, AT 9.20 AM

Copyright in the High Court of Australia

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

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

(instructed by Clayton Utz)

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

Your Honour, I appear with my learned friend,

MR s. GAGELER, for the defendants. (instructed by

the Australian Government Solicitor)

SIR MAURICE:  Your Honour, both parties have agreed upon

facts and questions - I say - to be raised,

Your Honour. I say that subject to my learned

friend having a sort of - he wishes to have another

bite at something, Your Honour, so I will just let

him say what he wants to do.

HIS HONOUR:  Yes, but before he does, Sir Maurice, I should

indicate that I have not seen the document which

you say must incorporate the agreement of the

parties. But, in advance of seeing the document, I

should indicate to you that as I see the case at

the moment, it raises a number of points which I

would have thought would be more suitably

determined by a court other than the High Court, in

the first instance. I must say I would have

thought that once those points were determined by
another court, the parties might think twice about

agitating those points again in this Court.

SIR MAURICE:  I am not quite sure what point Your Honour has

in mind, but I gather that is to do with the

question of estoppel - - -

HIS HONOUR: Yes. The one point that is worthy of the

attention of this Court at this stage is the in other circumstances, attract the attention of

this Court. But these other points about whether

or not the plaintiff have a lease which depend on,

what I might call to some extent, "trivial captious

objections", subject to hearing argument, of

course, I would have thought should be determined

by some other court.

SIR MAURICE:  Your Honour, it is true, they depend on

captious objections by the Commonwealth but it is

also true, Your Honour, that at the basis of these

captious objections is a view of section 70 of the

(Self-Government) Act which the Commonwealth

asserts that its result is this that mining leases

granted under Northern Territory law continued in force by section 57 of the (Self-Government) Act,

so granted by the Territory Government and hence

granting rights adverse to the owner of the fee

simple, do, upon the Commonwealth acquiring the fee

simple by resumption under section 70, yield the

Newcrest(2) 2 SIR M. BYERS, QC 19/8/92

result that the mining leases are held somehow from

the owner of the fee simple, namely, the

Commonwealth. Now, that is the essential basis.

Your Honour, they say that is the consequence

of their interpretation of section 70 of the

(Self-Government) Act which does no more than say

that the Commonwealth may, in the interval - within

a year, in effect, of self-government, resume land

which otherwise would go to the Territory and

thereupon the various interests of the people are

held from the Commonwealth.

Now, Your Honour, we say that that view which has the support of Mr Justice Wilcox and,

admittedly, obiter in a case to which my friend
will no doubt refer, and, I think, again obiter of

Mr Justice Sheppard but not of the Chief Justice of

the Federal Court - - -

HIS HONOUR:  When you say, not of him, he takes an opposite

view, does he?

SIR MAURICE:  He does not take this view at all. He says

nothing about it, Your Honour, as I would

appreciate his judgment.

HIS HONOUR:  You are referring to a judgment of the

Full Court of the Federal Court, are you?

SIR MAURICE: Full Court of the Federal Court. So, what

that means is that if we go to the Full Court of

the Federal Court they will have this decision.

HIS HONOUR:  I see.

SIR MAURICE:  They will have this obiter question. Both -

Mr Justice Wilcox says it is unnecessary to decide

it, but decide it he does; and Mr Justice Sheppard

says it is unnecessary to decide but he expresses

his concurrence with the view of Mr Justice Wilcox.

Your Honour, that is the basis of the attack upon

the validity of the leases. That is the entire

basis.

There is another attack which I will not worry

Your Honour with at the moment.	That attack
depends upon - - -

HIS HONOUR: 

What about this other attack that seems to be

based on prescribed substances, the Atomic Energy
Act?

SIR MAURICE: 

Your Honour, there is no doubt that in

relation to the land that was resumed there were

granted leases which were to mine for gold,

palladium, silver and zinc. My friends, as I

Newcrest(2) 3 SIR M. BYERS, QC 19/8/92

understand them, all wish to say that according to

the law of the Northern Territory - if I understand

it right - that up to a certain period that would

have also given you the right to take prescribed substances. Now, that right went on any view in

1979.

So, they then say that although the Northern

Territory authorities agreed to renewals of the various leases, none the less, the Commonwealth

Minister did not and therefore, they say, that

under the law of the Northern Territory, which had

a provision in restricting - on one view, you would

say restricting the executive authority of the

Northern Territory Minister under the Northern

Territory law. They wished to say that the

Northern Territory law prevented an exercise of the

executive authority of the Northern Territory

Minister to renew the lease if, incidentally to the obtaining of gold and silver and other sort of

things, you took prescribed substances.	Now, we
say that is just not right as a matter of
interpretation.

We say, in any event, the restriction - the

side agreement, as it were, in the statute, would not prevent the lease that was renewed and on the registers that are kept under the Mining Ace

renewed, from being effective, and the only result

of that would be that the agreement between the

Commonwealth and the Northern Territory to the exercise of the executive authority was not

complied with.

HIS HONOUR:  Has the Commonwealth known all along of the

state of the register; known of the situation

between the plaintiffs and the Northern Territory

Government?

SIR MAURICE: Yes. The Commonwealth all along knew this,

Your Honour. For some considerable time the

Commonwealth asserted, so the plaintiff says - and

that is the only basis of the estoppel point - that

the plaintiff had existing mining interests and we

say it was asserted - some language perhaps was

ambiguous· but the majority of the language was

quite clear that they were asserting they were

relating to mining interests held under Northern

Territory law.

We would not ask Your Honour to consider any

question of estoppel. But the estoppel is

contingent - - -

HIS HONOUR:  But I was going to say to you, is there not a

difficulty about that? You have to establish, have

you not, that you have propriety entitlements

Newcrest(2) SIR M. BYERS, QC 19/8/92

either as a matter of property or, perhaps, as a

matter of estoppel before it becomes necessary to

determine the constitutional question?

SIR MAURICE:  Yes, Your Honour. I have to say that I have

an interest - perhaps I should add one other

factor. Under the Northern Territory law the right

to renewal was vested in the leaseholder, so the lease - - -"

HIS HONOUR:  What law said that, by the way? What law did

give the statutory right of - -

SIR MAURICE:	The Mining Ordinance 1939.
HIS HONOUR:	What provision?

SIR MAURICE: Sections 42 and 49, Your Honour, gave the

right to the holder to renew the lease.	I could
read Your Honour the section.

HIS HONOUR:	Yes, if your would.
SIR MAURICE:	In relation to mining leases, it is

section 42.

HIS HONOUR:  When was that introduced?

SIR MAURICE: That was introduced in - I would think in

1939, Your Honour. The only form of the Act - of

this Ordinance is consolidated up to 1972 and then

there are ad hoc amendments, but if Your Honour

goes to section 42 of that, page 31, and sees:

The term of a gold-mining lease shall not

exceed twenty-one years from the first day of

January next preceding the approval thereof, but every lessee shall at the expiration of

his lease, have a right to renew the lease for

further periods of twenty-one years,

And we say that was done

HIS HONOUR: And 49 is in similar terms.

SIR MAURICE:  Section 49 says the same for the mineral

leases. So we say, Your Honour, that these were
rights given to the holder of the lease by virtue

of the law of the Northern Territory so that it

had, as it were, a right against the State, under

the statutes. We say it does not matter what the

executive power arrangements were because we say

the right is given to the individual. There is no

point taken, nor could any point be taken about the

original grant. They were on any view, in form and

in substance, in compliance with the law of the

Newcrest(2) 5 SIR M. BYERS, QC 19/8/92

Northern Territory. It is only the renewal that

the Commonwealth seeks to attack. We say,

Your Honour, that these rights bring out of the

Northern Territory law and we say they can be -

they are rights granted to the individual. There

is no dispute, as I understand it, that the

documents were given, that in effect the rights

were exercised. But the Commonwealth says, well,

this prescribed substance point, it meant that they

were not validly exercised.	Now that is as I
understand it.

Your Honour, so that what we say is that our

rights are established by the law that derives its

force from the law of the Commonwealth: namely the

Northern Territory (Self-Government) Act, which

continued this law in force by section 57 of the

Northern Territory (Self-Government) Act.

Your Honour, then we say that section 70 did not

operate, somehow or another, against the grant of

legislative power and the continuance of the grant

of legislative power contained in section 7 of the

Northern Territory (Self-Government) Act, and the

continuance of the legislation, section 57 of the

Northern Territory (Self-Government) Act. So that

is the way we establish our rights and we say they

are there. What my friend is really saying - could

I just say another point? I hope Your Honour will

bear with me, but - - -

HIS HONOUR:	Oh yes, I am anxious to understand what the issues in this case are because, as I said to you,
at first glance it seemed to me that a number of
these issues should be dealt by another court, in the first instance.
SIR MAURICE:	Your Honour, can I take - the summons for girections was necessary because, for lack of a
better word, an obscurity in the pleading. What
happened, Your Honour, is that what the plaintiff
attacks are proclamations by which land which was
owned by the Commonwealth, was vested in the
Commonwealth pursuant to this earlier resumption
under section 70, was transferred from the
Commonwealth to the Director of National Parks and
Wildlife. The Commonwealth, in the meantime, had
amended the National Parks and Wildlife Act - and I
can take Your Honour to that - by saying that
rights to mine were forbidden in Kakadu when it
became vested in the Director of Wildlife. Then,
what was done was that the proclamations
transferred this land from the Commonwealth to the
Director of Wildlife.
HIS HONOUR:	Second defendant.

Newcrest(2) 6 SIR M. BYERS, QC 19/8/92

SIR MAURICE:  Second defendant. That meant that rights

exercisable, as we would say, against the first

defendant, the Commonwealth, were taken away by the

transfer. So as they existed when the Commonwealth

was the owner, so the plaintiff says, the rights

were capable of exercise. As from that moment if

the law is valid - - -

HIS HONOUR: That is, rights available under what you say

were the renewed mining leases.

SIR MAURICE: Indeed, Your Honour. That was the right to

mine gold, silver and so on, and also on one view

you could say up to 1979 - perhaps incidentally to

my prescribed substances - the leases were all

subject to a condition that if any prescribed

substances were obtained, it had to be sold or

disposed of to the Commonwealth. It is an misnomer

to say there was a right to mine prescribed

substances because if it was obtained it had to be

taken away and delivered to the Commonwealth.	So
we say, Your Honour, that all these points are

indeed captious. Then, Your Honour, if one looks

at the way the course of pleading has gone in this

case, paragraph 10 of the statement of claim

asserts in a more or less conventional way, I suppose, the basis in the Constitution of the

invalidity of the proclamations.	It is on page 3
of the amended statement of claim, Your Honour.	If
Your Honour goes to paragraph 10, Your Honour sees
that:

The purported acquisitions -

they are the ones by the proclamations -

referred to in paragraph 7 were not made on

just terms whereby the provisions of the

National Parks and Wildlife Conservation Act

1975 insofar as they purport to authorize the said acquisitions are beyond the power of the

Commonwealth Parliament to enact, and the said

Proclamations were invalid and of no effect,

by reason of the application of

section Sl(xxxi) of the Constitution to those operations of the National Parks and Wildlife

Act for facilitating the carrying out by

Australia of obligations under, or exercise by
Australia of rights under, agreements between

Australia and other countries;

Now, Your Honour -

HIS HONOUR:  I do not quite understand what that means. I

can understand that you are relying on Sl(xxxi) on

the footing that there has been, you say, an

acquisition of property otherwise then on just

Newcrest(2) SIR M. BYERS, QC 19/8/92

terms. But I do not understand what follows the

reference to Sl(xxxi) of the Constitution.

SIR MAURICE:  That is a reference to those provisions of the

National Parks and Wildlife Act which say that its

purposes extend to the carrying out of obligations,

for facilitating the carrying out of obligations
under agreements between Australia and other
countries and the exercise by Australia of rights
under agreements between Australia and other

countries. So the clear resource to the external

affairs power.

HIS HONOUR:  In other words, you are saying Sl(xxxi)

applies, notwithstanding that what has been done

purports to have been done pursuant to

international obligations that Australia has

entered into.

SIR MAURICE:  Yes, Your Honour. So we say that what you are

really doing is exercising power under - the

executive act of resuming is, in truth, an exercise

of the power under section Sl(xxix) and therefore

Sl(xxxi) applies. There is no dispute, in fact - in fact the pleadings agree that an object of the

proclamations was the obtaining of the listing of
the Kakadu National Park. That is agreed in
paragraph - and I can take Your Honour to the

pleadings later. But, Your Honour, the other bases

are, first of all we are saying that this is an

exercise of the external affairs power; then we are

saying that section 122, so far as it relates to

territory surrendered under section 111 by a State

and accepted by the Commonwealth, if you treat that

as the source of power, does not involve the

proposition that the exercise of power under

section 122 in relation to its first arm to acquire

property is valid by expropriation without

compensation. In other words we say that - of

course is obiter, so far as it relates to the

general spread of section 121.

HIS HONOUR:  You would be arguing, anyhow, that that obiter

is incorrect.

SIR MAURICE:  I would say that obiter is incorrect. Really,

when you think of people who are at one moment

entitled to compensation when they were part of a

state, and then you have an exercise of power under

section 111 of the Constitution, so the State

surrendered the territory to the Commonwealth and

thereupon they lost all their rights to

compensation. That is what that view of

section 122 would involve and we would say that is

just not, with great respect, just not open.

Newcrest(2) 8 SIR M. BYERS, QC 19/8/92

HIS HONOUR:  Are you saying that it is wrong in relation to

the Northern Territory only, or are you submitting

that it is wrong in relation to - - -

SIR MAURICE:  Only wrong in relation to the first arm, or

what I have called the first arm. In other words,

it is only wrong in relation to territory which has

come under the embrace of section 122 by way of a

surrender under section 111. That is all. Then

lastly, we say that section 50(2) of the

(Self-Government) Act binds the Northern Territory

to give compensation. We say, Your Honour, that

what section 50 purports to do, clearly, is to bind
the Commonwealth. It would be just as the

Commonwealth of Australia Constitution Act bound the United Kingdom Parliament as a necessary

consequence, so section 50(2) binds the

Commonwealth as the legislator because 50(1) says:

The power of the Legislative Assembly

conferred by section 6 -

that is the law-making power

in relation to the making of laws does not

extend to the making of laws with respect to

the acquisition of property otherwise than on

just terms.

Then it says:

Subject to section 70, the acquisition of any

property in the Territory which, if the
property were in a State, would be an

acquisition to which paragraph 51 (xxxi) of

the Constitution would apply, shall not be

made otherwise than on just terms.

So obviously subsection (2) of section 50 was

intended to bind the Commonwealth as required?

HIS HONOUR:  Just putting aside the section 50 point for the

moment, which is an alternative arm to your

ultimate argument, why should not the Court proceed

on the footing that it is desirable to determine in

the firs~ instance whether the plaintiff possesses

these proprietary rights, either in virtue of

renewal of the leases or in virtue of some form of

estoppal. Because until such rights are

established, the constitutional question, and for

that matter the section 50 question, are academic.

SIR MAURICE:  Yes, Your Honour, but the assertion that no

right exists is in turn dependent on an allegation

of law, namely that section 70 on its true
construction has effect to make the holder of a

mining lease in some way be - - -

Newcrest(2) 9 SIR M. BYERS, QC 19/8/92

HIS HONOUR:  That brings us back to the Federal Court

decision, which I have not seen.

SIR MAURICE:  Which we would say is wrong, with respect to

those of Their Honours who so decided, but which

would mean that if we went back to the Federal

Court we could be faced with arguing that that is

wrong, so automatically - - -

HIS HONOUR:  I follow you would be met with that in the

Federal Court, but the other questions, the other

issues would be live issues in the Federal Court.

What I am thinking of: should they be not got out of the road first?

SIR MAURICE:	Your Honour, if the other issue - really there
are only two issues, as we would understand it. section 70 issue, with which the estoppal point is intimately bound. In other words, we are saying that the behaviour of the Commonwealth -
HIS HONOUR:	But I understand on any view you are saying

that I should not be concerned about the estoppal

point.

SIR MAURICE:  Yes, Your Honour. I will forget the estoppal

point, Your Honour. So, Your Honour, we say that

the allegation, or the assertion that my learned friends wish to make in support of what is, with

great respect, a captious point is that section 70

has an operation to novate in some strange way the
holder of a mining lease which is on land, which is

exercisable in relation to land which the

Commonwealth has resumed under the section, the lessee of the Commonwealth, Your Honour, which we

say is,on its face, absurd. If Your Honour goes to

section 70 we would say that all that section 70

does - perhaps one should go to section 69,

Your Honour. If Your Honour goes to section 69, in

the reprint of the Act I have it is page 22 but it

says, it defines "mineral", "personal property"

does not matter. But then 69(2) says:

All interests of the Commonwealth in land in

the Territory, other than interests referred to in sub-section (5), are, by force of this section, vested in the Territory on the

commencing date.

Could Your Honour then go down to subsection (4): All interests of the Commonwealth in respect of minerals in the Territory (other than prescribed substances .•• are, by force of

this section, vested in the Territory on that

date.

Newcrest(2) 10 SIR M. BYERS, QC 19/8/92

If Your Honour then goes to section 70 -

HIS HONOUR: First of all, what is subsection (4) designed

to achieve?

SIR MAURICE:  What it is designed to achieve is that, as

from the beginning of self-government, the

ownership of all minerals is vested in the
Territory, except prescribed substances. That is

the effect of subsection (4).

HIS HONOUR:  So that subsection (4) parallels

subsection (2), except in so far as prescribed

substances are concerned.

SIR MAURICE:  So then the power, the mining law of the

Northern Territory, which has continued in force by

section 70, operates upon minerals of which the

Commonwealth are not the owner, except prescribed substances. Then when one goes down to section 70, one sees that:

The Minister may, from time to time,

recommend ..... that any interest in land vested

or to be vested in the Territory by sub-

section 69(2) -

and that is land and not minerals,

(including any interest less than, or

subsidiary to, such an interest) be acquired

from the Territory by the Commonwealth - Then subsection (2):

The Governor-General may, on the

recommendation of the Minister under sub-

section (1), authorize the acquisition of the

interest for a public purpose -

And:  may cause to be published •.••• notice -

And then subsection (4) comes along and says:

Upon publication of the notice in the

Gazette or immediately after the commencement of section 69, whichever is the later, the

interest to which the notice relates is, by

force of this section -

vested in the Commonwealth -

The usual sort of section, Your Honour. So what

they get is the land. And then subsection (6),

which my learned friends rely on:

Newcrest(2) 11 SIR M. BYERS, QC 19/8/92

Upon acquisition of an interest by the

Commonwealth under this section, all interests

that were held from the Territory, immediately

before the acquisition, being interests

derived from the first-mentioned interest,

are, by force of this section, held from the

Commonwealth -

So, obviously at that stage there is no reference

to minerals. Mineral leases are obviously not

being dealt with. If Your Honour will see, the Act

as originally introduced went down to

subsection (10) and then it ceased in 1978. In

1982 subsection (11) was added. That was by, I

give Your Honour the reference to the Act and I can

give Your Honour a note of - if I can hand up -

HIS HONOUR:	Yes.
SIR MAURICE:	This is a written sort of - my friend has had

this for some time now. Your Honour the subsection

(11) was added by - - -

HIS HONOUR:  It is referred to in the last paragraph on

page 4.

SIR MAURICE:  Thank you, Your Honour. It is in 1982,

Your Honour, I cannot find it on these notes.

HIS HONOUR:  You do say in paragraph l(d) on page 1:

Between 1 July 1978 and 14 December 1982,

section 70 of the (Self-Government) Act.

SIR MAURICE: Yes, Your Honour.

HIS HONOUR: Perhaps that last reference 14 December 1982 is

qesigned to pick up the date when subsection (11)

was introduced.

SIR MAURICE:  Yes. So that is - yes - I think I have got

Your Honour, I can find it in a moment. In	them in the wrong order here. At any rate,
December 1982 - would Your Honour just pardon me a moment and I will pick it up?

HIS HONOUR: Yes.

SIR MAURICE:  Your Honour, it is page 2, paragraph (f).

Subsection 2(1) and section 11 of Act No 130 of

1982 - that is the Act which added subsection (11)

to section 70 - we say do not have effect to

require the assumption to be made that in

determining the legal effect of renewals of mineral

leases, the Commonwealth should, contrary to the

fact, be treated as if, in the interval between the

first - - -

Newcrest(2) 12 SIR M. BYERS, QC 19/8/92

HIS HONOUR: Whereabouts is that, I have not picked it up?

SIR MAURICE:	Does Your Honour have page 2?
HIS HONOUR:	Of the document you passed up?
SIR MAURICE:	Yes, Your Honour.
HIS HONOUR:	Yes.

SIR MAURICE: Paragraph (f)

HIS HONOUR:	So, it is Act No 130 of 1982.
SIR MAURICE:	Yes, Your Honour, 130 of 1982. And that by

section 11 amended section 70 by adding

subsection (11) and by section 2(1) of the 1982

Act, that amendment was to apply back to the

commencement of the (Self-Government Act). But

what we say is, in relation to those renewals that

occurred in the interval, that does not require

that the Commonwealth should be treated as if

subsection (11) then existed in the Act.

HIS HONOUR:  You are reading subsection (11) prospectively,

are you?

SIR MAURICE: Well, yes, I am - - -

HIS HONOUR:	How are you reading it?
SIR MAURICE:	I am reading subsection (11) to say that as

from the date of its introduction - - -

HIS HONOUR: A date in 1982.

SIR MAURICE: Yes, Your Honour - it had effect to vest the

minerals in the resumed land in the Commonwealth

and that is all. But it did not affect mining

leases. It is talking about ownership of land and

ownership of minerals.	It has nothing to say to
the right to mine granted under the law of the

Northern Territory. That is totally different.

And then I say that several of the renewals took place in the interval between the date of self-

government on 1 July 1978 and 31 December, I think

it is, when the amending Act was introduced. So

that, in the interval, all that the Commonwealth

could say was that it owned the land, and it did

not own the minerals. So any attempt to treat

section 70 as destructive of the mining regime of
the Northern Territory runs into that further
obstacle and we say that is a serious question of
interpretation; and that that is so, although by
the amending Act of 1982 the amendment was to be

retrospective, but you can not destroy rights by

saying that they are to be retrospective.

Newcrest(2) 13 SIR M. BYERS, QC 19/8/92

So, we submit, Your Honour, with respect,

there is a serious question of interpretation of an
important Act, namely, the (Self-Government) Act,
affecting the grant of a number of mining

interests. And we say that the Commonwealth's

attempt to escape the consequences of a demurrer,

which it has done here - - -

HIS HONOUR:  The consequences of a?

SIR MAURICE: Demurrer. Because, Your Honour, the

Commonwealth did not demur. What it did to the

statement of claim was to say we deny the

allegations of - possibly I should take Your

Honour to the defence to the amended statement of

claim, .paragraph 10. What they say is, they deny

National Parks and
that the provisions of the referred to in paragraphs 5 and 6 above or any of them, are invalid on the grounds alleged in

paragraph 10. Or at all, they say.

Your Honour, that is obviously, instead of

demurring to the allegation of law, what they said,

we deny the allegations of law. So that is a plea

or a demurrer masquerading as a plea. So, when one

looks to the way the Commonwealth has approached

this, Your Honour, when one is thinking, with great

respect, what is the appropriate course to adopt,

we would respectively submit that one would bear in

mind how it came about that the present situation

arose.

The present situation did not arise in

accordance with the normal procedures of the Court;

it arose by an attempt to avoid a demurrer.

HIS HONOUR:  The Court's power to remit would extend to

issues raised by demurrer.

SIR MAURICE:

I would not dispute that for a second, Your

Honour. All I am saying is when one starts off and

says well, are there serious questions, and if one

says there are serious questions, then, in our

respectful submission, the appropriate course is
not to say the offending party is entitled to the

benefit of it, unless the benefit of his

pleadings - unless there is a positive reason
supporting that, and we say all the reasons here
would support that the Court should decide the

serious allegation of fact. First of all, we say

that the objections to these licenses are captious,

but fundamentally, they are based upon a view of

section 70. We say that is an important question,

and we respectively submit that it is of such

significance that this Court should entertain it,

particularly bearing in mind that if we were sent

Newcrest(2) 14 SIR M. BYERS, QC 19/8/92

to the Federal Court, we would be faced with this

decision.

HIS HONOUR:  Are you going to give me a reference to that

Federal Court decision?

SIR MAURICE:  Yes, it is Peko-Wallsend, Your Honour, which

my friend has very kindly given to me;

Minister v Peko-Wallsend, 75 ALR 218. I refer to

the judgment of Mr Justice Wilcox and the relevant

passages my friend has just kindly marked is at

page 243 where His Honour proceeds to examine

section 70 and comes to the view that 70(6) vests

the mining leases - I am not quite sure what

exactly His Honour is saying, with great respect,

but he is saying that the effect - - -

HIS HONOUR:  If that is so, perhaps the Federal Court might

reconsider what it said.

SIR MAURICE:  Perhaps they might, Your Honour, but it is

often thought as unnecessary labour. But any rate,

that is what he says, and His Honour says it is

obiter and Mr Justice Sheppard says he inclines to
the view that although the observations of

Mr Justice Wilcox are unnecessary for the decision,

he thinks they should be adopted.	He says that at
the bottom of page 228.

HIS HONOUR:  Do you say that he said he inclined to that

view?

SIR MAURICE: Well he says:

The only other matter which I would

comment is the nature of the interests which

the respondents have. I respectfully disagree

with the learned primary judge in his view

thats 70(6) of the Northern Territory (Self-

Government) Act 1978 did not operate - - -

HIS HONOUR:	Who was the primary judge?
SIR MAURICE:	Mr Justice Beaumont:
to remove from the Northern Territory power to deal with or affect the mining interests
which the respondents had.
He thinks it is a question of legislative

power, somehow. In my opinion, the section

requires one to conclude that it was the

Commonwealth and the Commonwealth alone which had

the power.

Your Honour, what can I say?

Newcrest(2) 15 SIR M. BYERS, QC 19/8/92

HIS HONOUR: Well, you may have the opportunity of

convincing them they are wrong.

SIR MAURICE:  Perhaps I might, Your Honour. I say that is

unnecessary Siberian labour. I know that is not a

matter that the Court would have regard to, but

bearing in mind the importance of the question we

respectfully submit that Your Honours would not

remit it.

HIS HONOUR:	How long do you think this case would take, and I am expecting, as always from you, a frank answer
to that question. Bearing in mind I would require, if the matter is to remain here, comprehensive written argument filed in advance from the parties.

SIR MAURICE: And not too elaborate a - Your Honour, the

written argument would still leave, I would say,

about three days.

HIS HONOUR: Three days.

SIR MAURICE:  Something like that, Your Honour. That is the

best I could do.

HIS HONOUR:  Thank you, Sir Maurice. Yes Mr Solicitor.

MR GRIFFITH:	Your Honour, we submit the plaintiff has to establish an interest in the mining leases before
it has a case.  We did not demur, Your Honour,
because we do not accept the facts, otherwise we would have. And, Your Honour, we say until the
issue of the interest in the mining lease has been
determined, the constitutional issues are academic.
As Your Honour has seen, our principal argument on
that issue is that as a consequence of the
acquisition procedures under section 69 of the
(Self-Government) Act, we submit that the mining
leases were held from the Commonwealth, and not
from the Northern Territory from 1 July 1978 and as
my learned friend has indicated, Your Honour, in
effect, his argument put to you on this point was that of Justice Beaumont and he has indicated,
Your Honour, at least by the way of dicta, that is
a view that has been rejected, it seems, by two
judges in the Peko-Wallsend decision at the
citations given.

HIS HONOUR: What is the significance of the date of

1 July 1978?

MR GRIFFITH: Your Honour, that is when we say thereafter

the issue of the mining leases becomes Commonwealth

domain, rather than the Northern Territory. So

that everything that happened after then in respect

to the leases, we say the Commonwealth had to renew

the leases, the Commonwealth - - -

Newcrest(2) 16 19/8/92

HIS HONOUR: That is the effective date, is it, of the

resumption by the Commonwealth?

MR GRIFFITH:  Yes, Your Honour. So, Your Honour, what we

say is that section 70(6) requires us to renew the

leases, us to consent to transfer to the

plaintiffs, and that just did not happen, so we say

there is no title. Your Honour, we do have these

two other arguments -

HIS HONOUR:	Just stopping you there, it would seem that that matter is really a foregone conclusion in the
Federal Court, is it not?

MR GRIFFITH: Well, no, Your Honour, my learned friend says

it is obiter, perhaps it is, Your Honour. We have

got authority of two judges in the Full Court,

Your Honour, but one can not say that my learned

friend's argument might prevail before a single

judge or a Full Court that it has not been

determined authoritatively and that his argument is

right.

HIS HONOUR:  This Court has always encouraged the view that

courts below should, as it were, follow previous

decisions.

MR GRIFFITH:  Your Honour, we are not going to do anything

to denigrate the authority of that in our favour.

HIS HONOUR:	No.
MR GRIFFITH:	Your Honour, what we say is that the plaintiff

has to establish its title and at the moment, Your

Honour, it is half out of court because at least

two judges have said well, that is your

construction, and it has been accepted by one judge

in the Federal Court and not accepted by another

two in a Full Court, and as my learned friend

pointed out, the Chief Justice did not get involved

in the issue.

Now, Your Honour, on that issue, my learned

friends respond in paragraph 20 of their reply and

raise an estoppal. Now we say as to that plea,

Your Honour, at the moment it is a deficient

pleading because it does not plead adequately the

facts of estoppal and it does not plead anything at

all on reliance.

I should point out, to answer one of Your Honour's questions as to whether the

Commonwealth has done anything in respect of this

issue of whether or not it is asserting that the

title is doubtful, document I on the list of

particulars to paragraph 20 of the plaintiff's

reply, Your Honour, is a letter from the

Newcrest(2) 17 19/8/92

Minister of Administrative Services dated

3 March 1988, which attaches an authority under the

Lands Acquisition Act 1955 for an environmental

impact statement to be made which recites in

paragraph (c), Your Honour, that uncertainty exists

as to the validity of the named lease. So,

Your Honour, we would say that this argument is

something that has been flagged at least four or

five years ago by that one document that the

plaintiff relies on.

On this question of estoppel, Your Honour, we

say this is a matter that just cannot go to the

Full Court of this Court in the way it is. It has

not been correctly pleaded. Your Honour, when it

is, there will be pleading in response and the

whole factual -

.HIS HONOUR:  But even if it were correctly pleaded,

Mr Solicitor, I think there is very considerable

difficulty in this Court entertaining a question of

estoppel, even in circumstances where the parties

are agreed on the facts.

MR GRIFFITH: Your Honour, I was going to say that.

HIS HONOUR:  Because, so much depends on inferences that are

to be drawn, on really the complexity of the whole

skein of evidence that might be led before a Court.

MR GRIFFITH: Here is the extra intertwined issue, it is

estoppal as against the government, and government

acts under statutory authority. Your Honour, we

thought at one stage the estoppal issue might not

be pursued, and if that were the case, the issues

would be narrowed. But, at the moment, my learned

friends indicate they are pursuing it and we say,
Your Honour, our submission on estoppal is
something which must be sorted out in proper

pleading, either here or in another court and then

remitted to another court, at least for the

findings, but possibly for the whole issue.

Our short point, Your Honour; if this action

were not in this court, but say, in the
Federal Court as it could have been taken,

Your Honour, we say that it would not be in a state where it could be either removed or brought on

appeal to this Court until these factual issues

were resolved. Your Honour, on many of the
arguments my learned friend adumbrated to you this

morning, Your Honour - - -

HIS HONOUR: Well, not really the factual issues, but this

Court would take the view that questions of law ought to be determined in the court below so that

Newcrest(2) 18 19/8/92

we have the benefit of consideration of those

questions by judges in the courts below.

MR GRIFFITH: Yes, Your Honour, we say these issues of going

up and down these various acts and proclamations is

one that would be very useful to have, as it were,

the advantage of at least one judge, possibly three
as, say, in the Peko-Wallsend case, to see what

they have made of, without the Court having to do

it afresh.

HIS HONOUR:  And, if some of these issues were resolved

against you, you probably would not appeal against

the determination.

MR GRIFFITH:  Your Honour, we only go for the winners as it

were, as we usually do. Now, Your Honour, on the

other subsidiary issue, Your Honour, assuming we

are unsuccessful on denying title and assuming that

the estoppel argument is one which is not found in

our favour, or we were successful the other way

round, Your Honour, so that the plaintiff has got

around the preliminary problem about •.... , we have

these two further defences, Your Honour, dealing
with issues of fine construction of the nature of
gold leases and leases for other minerals which

involve, firstly, Your Honour, whether between

1 July 1978 and 29 December 1978, the Northern

Territory Government had executive authority to

renew the mining leases. That comes from

paragraph 4(b) of our defence, and secondly,

whether from 3 January 1979, Northern Territory law

prohibited the exercise of ministerial power to

renew or approve transfer of mining leases without

the consent of the Commonwealth Minister under the

Atomic Energy Act.

Now, Your Honour, they are points that, if

they are right, that is fatal, too. They might be

captious, Your Honour, but they might also be

winning points and, Your Honour, they are ones that

arise for argument and decision on construction of

legislative provisions. It is not a constitutional

point, it is just one that we say involved - - -

HIS HONOUR:  There· is only one constitutional point in the

case.

MR GRIFFITH:  Yes, that is right, Your Honour. Now, in that

context, Your Honour, we would submit that the
ordinary course that this Court should not be

considering at length possibly academic questions,

that it is appropriate - there is no particular

urgency to say this Court should have one hearing,

one hit of the matter, Your Honour.	It is in
essence a claim for - - -

Newcrest(2) 19 19/8/92

HIS HONOUR: Well, it has not been put on that basis,

Mr Solicitor.

MR GRIFFITH:  No. Your Honour, while my learned friend said

we had agreed on the question reserved, all we can

say is that we have gone a long way down the road

to a text, absent the estoppel issue - - -

HIS HONOUR:  What have you agreed upon? Can you show me

what you have agreed upon?

MR GRIFFITH:  No, Your Honour. Your Honour was delivered a

document yesterday which was our version of the

question -

HIS HONOUR:	Yes, I saw two documents yesterday.
MR GRIFFITH:	Your Honour, that was our proposal,

Your Honour, the one headed 'Questions Reserved'

which, on the basis of take out estoppel, what

findings of fact do you need which when read with all the legislation and proclamations which could be annexed and put before the Court, would enable

the plaintiff to argue all the issues other than

estoppel.

Your Honour, that is not to say that we agree

it is appropriate that this Court should go through

all that exercise, but that document seemed,

Your Honour, to raise that. Now, since then,

Your Honour, my learned friends have produced in

slightly different text, and my learned friend has

a copy here which I am happy to hand up if he likes

HIS HONOUR: Yes, I will have a look at that.

MR GRIFFITH:  Your Honour, which was on the desk when I

arrived in Court this morning and subject,

Your Honour, to some textural alterations, seems to

cover basically the same ground and the same form

as our document.

HIS HONOUR:  I should say to you, Mr Solicitor, I have seen

this document. It was handed to me yesterday, I

think by the solicitors instructing Sir Maurice.

It did have draft on it; I did not quite know what

the status of the document was, so I have seen it, but I did not give it much attention because I did

not really know what its status was.

MR GRIFFITH:	Your Honour, we would say that if Your Honour was minded to say that the High Court should now
deal with all these issues, the title other than
the estoppel issue, subject to some alterations
which we would expect to agree and subject to
further additions to question 1 which would add in

Newcrest(2) 20 19/8/92

the two points that we make about these prescribed

substance defences, Your Honour, the

Atomic Energy Act and the other matter I mentioned,

then a document in this order with reference to all

the various statutory provisions and proclamations

and gazettals et cetera would put all issues before

the Court. Our point would be, Your Honour, it is

put in before the Court as if it is a court of

first instance.

HIS HONOUR:  What order do you say I should make,

Mr Solicitor?

MR GRIFFITH: 

Your Honour, we have a summons dated 18 August

which was really intended to bring this issue of
estoppel to the head and asking that the matter be

remitted for at least the finding the facts on

estoppal. Your Honour, we have asked in the

summons under Order 52 rule 6(1) for an order for
abridgement of time for service because we took it

out on Monday, but that is really, Your Honour, to

concentrate attention on the issue of whether the

matter stays here or whether it should be remitted.

HIS HONOUR: 

Let us assume for the moment, and of course

this is subject to what Sir Maurice might say in

reply, let us assume at the moment that I am minded

to make an order for remitter, what order for

remitter do you want and what other orders do you

want?

MR GRIFFITH:  Your Honour, we believe the two matters that

should be remitted are firstly the estoppal issue

and secondly, Your Honour, the question of fact of

the title to the lease because we say no

constitutional issue arises until that is resolved.

Now as to whether, Your Honour, it is appropriate

to have merely findings of fact on that second point and then to come back to the Court - - -

HIS HONOUR:  Would it not make more sense for me to remit to the Federal Court under section 44(2A) that part of

the cause that comprises the issues in the case
other than the question whether the proclamations,

I think they are referred to in one of these

questions, under section 7(8) of the

National Parks and Wildlife Conservation Act 1975,

published in the Commonwealth of Australia Gazette

on 12 June 1987, 22 November 1989 and 24 June 1991

are invalid by reasons of section Sl(xxi) of the

Constitution.

MR GRIFFITH: Yes, Your Honour, it would.

HIS HONOUR:  Now, that would leave the Federal Court to

determine all the questions of fact and law in the

case other than the constitutional question.

Newcrest(2) 21 19/8/92

MR GRIFFITH: Yes, Your Honour, yes.

HIS HONOUR:	Now, admittedly it would leave Sir Maurice in the position that he would have to persuade either
Mr Justice Wilcox and Mr Justice Sheppard of their
heresy or persuade other members of the court
constituting the Full Court of their heresy, but
that would not seem to take up very much time
before the Federal Court.
MR GRIFFITH:	No, Your Honour.
HIS HONOUR:	It would not add significantly to the length of

the case and if Sir Maurice found the members of
the Full Court intransigent on the issue, he would

reserve his fire for this Court.

MR GRIFFITH: Yes, Your Honour, that would be in a sense

right. Your Honour, in essence our approach to

this case has been a response ·to a writ issued in
this Court with the plaintiff pushing for all

issues to be put before the Court. My learned

friend has made his point about demurrer and we

have answered that by saying if this is a case

about the facts for us first before we get to that

but to answer Your Honour's direct question, the

answer on our side is yes.

HIS HONOUR:	Do you want any other orders.
MR GRIFFITH:	Your Honour, if that is done we suppose that

the Federal Court can grapple with the other

matter. Your Honour, clearly my friend should

replead paragraph (20) or abandon the estoppel.

HIS HONOUR:  That is a matter though for the Federal Court,

I do not want to get involved in the pleading

exercise.

MR GRIFFITH:  No 1 we do not take our pleading summonses

here, Your Honour. That is something that has to

be attended to if it remains in the ring.

HIS HONOUR: And costs would be costs in the cause.

MR GRIFFITH: Yes, Your Honour. We, of course, would have

to answer the reply, Your Honour, when repleaded on

that issue because the estoppel would give rise to

defences of law and fact as well.

HIS HONOUR:  That all depends on what view is taken of the sufficiency of the pleadings.

MR GRIFFITH: Yes, Your Honour.

Newcrest(2) 22 19/8/92

HIS HONOUR: Sir Maurice. Now I have indicated, I think,

during the course of the Solicitor's address the

general view I take about the matter.

SIR MAURICE:  Your Honour, I understand what Your Honour has

in mind. What we - - -

HIS HONOUR:  I can see the difficulty you have in persuading

the Full Court of the Federal Court of the heresy of their views in Peko-Wallsend, but I think that

is.one of the hurdles you necessarily have to face.

And as I said to the Solicitor, I do not see that

it is going to add significantly to the length of

the case before the Federal Court.

SIR MAURICE:  I had in mind submitting to Your Honour that

if You~ Honour were minded to remit, what

Your Honour would do would be to remit only those

questions of fact as relate to the - - -

HIS HONOUR:  I can understand that, Sir Maurice, but I must

say experience has indicated that in many instances

it is more desirable to remit the totality of the

case except for certain issues, rather than confine

the court below to issues of fact. I think it is

desirable both from the point of view of this Court

and the point of view of the court below because

sometimes in the effort to define and frame the

issues of fact, you create additional difficulties

of an artificial kind.

SIR MAURICE:  Your Honours, I do not think there is anything

more I can say about it. It would create

difficulties which Your Honour fully understands

and also it would involve, as it were, the issue

that goes to the court would be an issue as to the

basis of which the court has already spoken, which

would put the plaintiff in a very difficult

position, which my friend is not entitled, with

great respect to him, to have. However that is a

question for Your Honour. So that is what we would

wish to say, Your Honour. I do not think we can

say anything more about that.

HIS HONOUR:	The issues raised by the pleadings in this case include a number of matters which I think should be
determined in the first instance by the
Federal Court of Australia rather than this Court.
Accordingly, I propose to make an order for remitter under section 44(2A) of the
Judiciary Act 1983. The order which I make is in these terms:

Pursuant to section 44 (2A) of the Judiciary

Act, I remit to the Federal Court of Australia that

part of the cause that comprises the issues in the

Newcrest(2) 23 19/8/92

case other than the question whether the

proclamations made under section 7(8) of the

National Parks and Wildlife Conservation Act 1975

(Cth), published in the Commonwealth of Australia

Gazette on 12 June 1987 and 22 November 1989 and

24 June 1991 are invalid by reason of

section Sl(xxxi) of the Constitution.

Costs of the proceedings thus far in this

Court will be costs in the cause.

SIR MAURICE: If Your Honour pleases.

AT 10.26 AM THE.MATTER WAS ADJOURNED SINE DIE

Newcrest(2) 24 19/8/92