Ngan Aak-Kunch Aboriginal Corporation RNTBC v State of Queensland

[2015] HCATrans 205

[2015] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B35 of 2015

B e t w e e n -

NGAN AAK‑KUNCH ABORIGINAL CORPORATION RNTBC

Plaintiff

and

STATE OF QUEENSLAND

Defendant

Directions hearing

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 19 AUGUST 2015, AT 10.16 AM

Copyright in the High Court of Australia

MR D.M. YARROW:   If the please the Court, I appear for the plaintiff.  (instructed by Gilbert + Tobin Lawyers)

MR P.J. DUNNING, QC, Solicitor-General for the State of Queensland:   May it please the Court, I appear for the State of Queensland.  (instructed by Crown Solicitor (Qld))

HER HONOUR:   The proposed directions, Mr Yarrow, they have been shown to the Solicitor‑General?

MR YARROW:   Yes, your Honour.  In fact, the parties have conferred and propose to proceed by consent.

HER HONOUR: Yes. I take it that the principal thrust of the case in relation to inconsistency with section 10 of the Racial Discrimination Act probably focuses most on paragraph 20(c) of the statement of claim, that is, the exclusion of the right to object to an application for the grant of a mining lease when that is combined with the ouster of jurisdiction of courts to review?

MR YARROW:   Yes, an important element, your Honour.  Paragraph 20 relates to mining leases, paragraph 19 to mineral development licences.

HER HONOUR:   Yes, quite so.

MR YARROW:   It is in both respects, your Honour.

HER HONOUR:   Right.

MR YARROW:   Your Honour will see, for example, in paragraph 19(d), there is an ouster clause in respect of the Supreme Court’s jurisdiction.

HER HONOUR:   Yes.  This ouster, and the designation of this land as an Aurukun project – is that specific to this land?  It does not occur to any other ‑ ‑ ‑

MR YARROW:   Quite so, your Honour, only in respect of Restricted Area 315, which is only for this part of Queensland.

HER HONOUR:   All right.  Now, the directions you propose are really premised upon there not being difficulty with facts in contention.

MR YARROW:   Quite so, your Honour.

HER HONOUR:   Are you able to say, Mr Solicitor, whether it is worthwhile making directions about discussions conferring to agree on a special case at this point, or should that be deferred to the defence?

MR DUNNING:   Your Honour, we are content either way.  We are in agreement with these orders.  We see there are some areas of fact that will have to be resolved inter partes – I am not suggesting by the Court – for example, there is some suggestion that some private land is involved, and things like that, but we think ultimately they are matters that the parties ought to be able to resolve.  We are content for order 2, but if your Honour would prefer just the delivery of a defence and look at it after that ‑ ‑ ‑

HER HONOUR:   No.  I suppose that even if there are some facts that are thrown up by the defence as being in issue, the parties could nevertheless confer, in attempting to agree a special case, to overcome the factual difficulty and avoid a remitter.

MR DUNNING:   Indeed, and that is what ‑ ‑ ‑

HER HONOUR:   That is what you are going to try to do?

MR DUNNING:   Correct, your Honour, yes.

HER HONOUR:   How much time do the parties think they will need for discussions about a special case?

MR DUNNING:   I think I heard my learned friend saying four weeks.  I certainly think at least four weeks.  I am a little bit inclined ‑ ‑ ‑

HER HONOUR:   Four weeks from defence, or today?

MR DUNNING:   Four weeks from defence.  I am a little inclined to say six weeks.

HER HONOUR:   It always takes longer than you think.

MR DUNNING:   Yes.

HER HONOUR:   There is no urgency about this either, I suspect?

MR YARROW:   No, there is no urgency, your Honour.

HER HONOUR:   I order that:

1.The defendant file and serve its defence on or before 4.00 pm on 16 September 2015.

2.The parties confer with a view to agreeing the special case to be referred to a Full Court.

3.The matter be listed for further directions on Friday, 30 October at 10.15. 

4.Costs will be reserved.

MR DUNNING:   Thank you, your Honour.

MR YARROW:  Thank you, your Honour.

HER HONOUR:   Thank you, gentlemen.  The Court will adjourn.

AT 10.21 AM THE MATTER WAS ADJOURNED