Newcrest Mining (WA) Limited v The Commonwealth of Australia

[1992] HCATrans 185

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

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MASON CJ -

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 24 JUNE 1992, AT 10.18 AM

Copyright in the High Court of Australia

MR G. FLICK:  May it please Your Honour, SIR M. BYERS, QC

and I appear for the applicant plaintiff in that

case. (instructed by Clayton Utz)

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

I appear for at least the first defendant, and I

suppose the second defendant also, Your Honour,

although my instructions are not clear about that.

(instructed by Australian Government Solicitor)

HIS HONOUR:  I placed this matter in the list this morning

in order to ascertain what the state of play is and

whether the parties have in mind any programme for

advancing the case in terms of presenting issues to

the Court.

MR FLICK:  Your Honour, what we have done is to draft a

summons for directions.

HIS HONOUR:	Yes, I have seen that.
MR FLICK:	We say that will crystallize both the

constitutional points and the points of statutory

way, that will resolve the case in its entirety.	construction. If those points are resolved our potentially as to the operation of estoppel. That
may be a reason why Your Honour would not wish to
refer some questions for the Full Court.

HIS HONOUR:  That in a sense covers what I had in mind.

After all, it is suggested that points of law be set down for hearing and disposed of, but I am not

sure, on reading the papers, that it would be

pos~ible to dispose of those points without some recitation of agreed facts or, in the absence of

agreement, some findings of fact.

MR FLICK:  I think, Your Honour, that in relation to the

draft summons for directions, that if Your Honour	looks at paragraph 1, they are the constitutional
points. Paragraphs 3, 4, 5, 6, 8, 9 and 10 are points of statutory construction. In relation to
all of those matters, it would be our submission that those matters could be the subject of agreed
facts. There would always remain the question as
to whether or not Your Honour thought it was
appropriate to set those four questions down before the Full Court, bearing in mind the prospect that
there may be some dispute on the facts, and
Your Honour may wish to have that resolved first.

But it is our submission that the appropriate

way to proceed would be to set the summons for

directions down for hearing, for the parties to

agree to the extent that they can on the facts.

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Your Honour would then be in a position, when the

summons for direction came before the Court, to

know the extent of agreement and disagreement and

the appropriateness of setting those four questions

down.

HIS HONOUR:	What do you say to that, Mr Solicitor?
MR GRIFFITH:	Your Honour, as always, we would earnestly

seek to see whether we could extract an agreed

statement of facts and questions which seem to go

truly to disposing of the matter. If it emerged

that questions, if only answered one way, would

dispose of the matter, otherwise it would not, we

would have thought it was a matter for the judge

giving directions to determine whether to state the

case or not. We think it would be useful,

Your Honour, if we could perhaps have another month

for earnest discussions to see how far we get.	I
have mentioned the date of Monday, 27 July to my
learned friend; if it could be again mentioned before Your Honour and we could report progress.

HIS HONOUR:  Yes, that would be convenient, Mr Solicitor.

That is agreeable to you, Mr Flick?

MR FLICK: Yes, Your Honour.

MR GRIFFITH:  There are really no promises, Your Honour; we

will just do our best to do it.

HIS HONOUR:  No, I appreciate that, but I thought I would

put it in the list this morning just to see how it

stands, with a view to listing it later on at a

time that might perhaps be realistic, having regard

to the possibility of progress.

MR GRIFFITH:  I think we should know definitely whether

there is a view that it has to go off for findings

or not then.

HIS HONOUR:  I will have the summons for directions listed at 10.15 on Monday, 27 July.

AT 10.23 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 27 JULY 1992

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