North Ganalanja Aboriginal Corp & Anor v State of Qld

[1996] HCATrans 4

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B33 of 1995

B e t w e e n -

NORTH GANALANJA ABORIGINAL CORPORATION and BIDANGGU ABORIGINAL CORPORATION on behalf of the Waanyi People

Applicants

and

THE STATE OF QUEENSLAND

First Respondent

CENTURY ZINC LIMITED  and CRA EXPLORATION PTY LTD

Second Respondents

For mention

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 31 JANUARY 1996, AT 11.29 AM

Copyright in the High Court of Australia

MR A.R. CASTAN, QC:   May it please the Court, I appear with my learned friend, MR R.W. BLOWES,  for the applicants.  (instructed by Ebsworth & Ebsworth)

MR P.A. KEANE, QC, Solicitor-General for the State of Queensland):  May it please your Honour, I appear with my learned friend, MR G.J. KOPPENOL, for the first respondent.  (instructed by the Crown Solicitor, Crown Law Division, Native Title Unit, Brisbane)

MR H.B. FRASER, QC:  May it please the Court, I appear with my learned friend, MR P.L. O’SHEA, for the second respondents.  (instructed by Blake Dawson Waldron)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:  If the Court pleases, I appear with my learned friends, MS M.A. PERRY and MR C.J. HORAN, intervening for the Attorney-General of the Commonwealth.  (instructed by the Australian Government Solicitor)

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory:  If your Honour pleases, I appear for the Attorney-General for the Northern Territory seeking leave to intervene.  (instructed by the Solicitor for the Northern Territory)

HIS HONOUR:   I think we have Western Australia next on our list.

MR V.B. HUGHSTON:  If your Honour pleases, before your Honour gets to Western Australia, if I might mention my appearance.  MR K. MASON, QC appears for the Attorney-General for the State of New South Wales and I appear with him, seeking leave to intervene. (instructed by the Crown Solicitor for New South Wales)

MS C.A. WHEELER, QC:  May it please your Honour , I appear with my learned friend, MR K.M. PETTIT, on behalf of the Attorney-General for Western Australia intervening.  (instructed by the Crown Solicitor for Western Australia)

MR G.M.G. McINTYRE:   Your Honour, I appear for the Kimberley Land Council seeking leave to intervene.  (instructed by the Kimberley Land Council)

HIS HONOUR:   Mr Castan.

MR CASTAN:   Your Honour, might I endeavour to summarise the state of the arrangements between the parties as we understand the way in which the papers now lie with the Court.  The application book that has been made available to the Court consists of a large number of volumes, 19 volumes, but in truth it is really only volume 1 that contains what we might call the substantive papers that the Court will principally be taken to and, in substance, need because of the way in which we are endeavouring and still working on one aspect of the agreed facts.

If I could explain that.  Volume 1 contains all of the judgments below and the relevant material that goes to the application for special leave and the appeal if leave is granted.  The other volumes include copies of and transcriptions of a very large number of historical documents and tenure history.  It is thought the best way of dealing with that, if I can now also talk about the agreed facts, is to incorporate a retranscription, if I can call it that, of the documents that parties want to rely on or refer the Court to as the agreed facts and historical documents part of the agreed facts document.  In other words, what has been supplied so far to the Court is a statement of agreed facts dealing with questions 1 and 2.

What we are still working on - and it has not been completed but it is thought it will be completed in the next couple of days - is a statement of agreed facts in relation to question 3 that really is - there is no disagreement on anything between the parties so far as facts are concerned.  There are differing documents that parties want to refer to or rely upon and some that all will be wanting to rely on; others that one party says are irrelevant and another party says are of great significance.  So what we are working on is an agreed, I suppose index, really, to the retranscription of the documents that parties will want to take the Court to.

HIS HONOUR:   Let us see if I understand this.  If one looks at a proposed statement of facts with relation to question 3, would one find a reference to several volumes of the 19 that are now available?

MR CASTAN:   No.  One would find ‑ if I could simply take an example of the document in the current draft which I have before me ‑ item 6 as currently drafted reads, “On 8 August 1845 the Secretary of State Lord Stanley, sent a dispatch No 100 to Governor Gipps of New South Wales enclosing a report” and so on.  We would then have as part of the annexure document 10 might be the transcription of that document.  So, it would not be necessary to go to any of volume ‑ ‑ ‑

HIS HONOUR:   At present those documents are somewhere in those 19 volumes?

MR CASTAN:   Yes.

HIS HONOUR:   I see.

MR CASTAN:   They are somewhere there and one way of doing this would be to say well, if you go to volume 8 and turn up page 4,565, one can find it.  What we were proposing to do, and what we have got a fairly well advanced version of, is the retranscribed agreed extracts.  Now, that would still leave the Court with the possibility, if any member of the Court wished to do so, of going to the photocopy original, many of which are in handwriting and difficult to read, and so on.

HIS HONOUR:   Yes.  Now, that would mean that the Court would have before it the statement of agreed facts.  It would have volume 1; it would have another volume which is in course of preparation containing the documents referred to in the statement of facts, and it would have the submissions of the respective parties.

MR CASTAN:   Yes, your Honour.

HIS HONOUR:   And that is all?

MR CASTAN:   Yes. your Honour.

HIS HONOUR:   Yes, right.

MR CASTAN:   Now, volumes 2 to 19, we think probably will not need to be referred to.  We should not say that in any totally exclusive way.  It is possible that a footnote somewhere in a submission or a reference article, or something else, refers to a document that does not get retranscribed and, if that is so, the reference is given appropriately and one would still be able to go to it somewhere in volumes 2 to 19.  I do not want to be taken to be totally excluding for all possible purposes the ‑ ‑ ‑

HIS HONOUR:   Certainly, it would be hoped that you can be exhaustive in relation to that additional volume you are producing.

MR CASTAN:   Yes.  We are endeavouring to do it that way, your Honour.  I just do not want to preclude the possibility that, for instance, there is a footnote somewhere that refers to a document and we do not pick up that particular footnote so we miss one that might, in fact, still be in a - it is most unlikely that in the course of address before the Court next week it would be necessary.

HIS HONOUR:   Is it practicable for ordinary management of the material that we could leave volumes 2 to 19 outside the courtroom and if it was necessary to refer to any of these additional documents, photocopies of those could be produced?

MR CASTAN:   Certainly.  I think that will be the case, your Honour.

HIS HONOUR:   Then, we shall do that.

MR CASTAN:   Yes.  If we know that is the course that is going to be taken, we will know to appropriately organise ourselves and ensure that copies of anything else are made.  If it becomes necessary in the course of running, obviously, a separate copy will be made.  So, that is the state of those matters.

HIS HONOUR:   When do you expect the statement of agreed facts in relation to question 3 to be available?

MR CASTAN:   We think Friday, but one would assume, given that it is a significant logistical task, we should say, indeed, by the end of Friday, your Honour.

HIS HONOUR:   It would obviously be of great assistance to the Court, having regard to its commitments on Monday and Tuesday, if this could be done by Friday.

MR CASTAN:   I am conscious of that, your Honour, yes.  We would certainly be working on that, your Honour.  Can I just mention briefly - on the question of submissions, I should mention that for ease of reference, those organised in preparing what has been called the application book have bound that with a black spine and all those volumes have a black spine and for purpose of ease of reference our written submissions, which are substantial, have a blue spine, which makes it a little easier to separately identify.  I should mention they are in two volumes but the second volume simply contains two articles that are referred to.  I should also say that it was our intention to make available a summary of contentions in what might be called the more traditional summary form prior to actually addressing the Court.  So that our contentions which are substantial are summarised into a handy and, hopefully, a very short document.

The other matter that I wanted to just mention was the question which has been raised in discussion among counsel which is the question of addresses or the possible question about the sequence of addresses or dealing with issues.  It is our respectful submission that the best way of dealing with that is not to, as has perhaps been suggested by some, endeavour to split issues, if I can call it that, so that the Court has numerous counsel presenting argument on one issue and then presenting argument on another or others of the issues.  That a better way of dealing with the problem, if I can call it that, of ensuring that these matters are properly presented within the time that is available would be to either agree or have ordered by your Honour some express or guideline time limits on counsel in which all of the matters that need to be said on all issues can be put.  I would initiate that by suggesting that we would suggest that we would put all that we want to say in oral submission, given the nature of our written submissions, in one day.

HIS HONOUR:   Yes, you would have to do it in one day and, indeed, a little less, I think, Mr Castan.  The problem arises, however, in relation to the 1883 lease because that is the subject of notices of contention.  Would you wish to address the 1883 lease in your opening submissions or in reply?

MR CASTAN:   We would be content to deal with that in opening submissions.  We understand what has been put against us.  It has been put already.  I do not think this is a case where there are any surprises and we would be content to respond to that.  Although we only saw the actual wording of the notice of contention I think yesterday, we anticipated or understood what the substance of it was and have dealt with it in our written submissions.

HIS HONOUR:   I will raise it with the Solicitor and with Mr Fraser, but it seems to me that there are differing bases in the two notices of contention.

MR CASTAN:   Yes, there are.  We would endeavour to deal with both, and fairly briefly, if I may say so, your Honour.

HIS HONOUR:   I see.

MR CASTAN:   We are prepared to deal with all of those matters as though we had heard what is said.  We have of course seen what is written.  So that we see that as a better course rather than having a somewhat irregular sequence of counsel up and down before the Court, given the numbers that are here.

HIS HONOUR:   Yes.

MR CASTAN:   Perhaps the only other thing I would want to add in relation to the question of allocation of time is to ask your Honour to note,

as your Honour has no doubt already noted, that, although there are vast numbers of people wanting to have something to say, we of course, apart from one of the applicants for intervention, are the only ones putting a particular viewpoint for the applicants.  Though there are many interveners, from what we now understand they are all saying the same thing, other than those applicants seeking to intervene on behalf of the Kimberley Land Council.  But all the various Solicitors‑General seek in substance to put similar views adverse to us.  It is for that reason that I suggested a day rather than a time calculated by reference to the numbers of counsel.  I do not think there are any other matters that I desire to put to the Court at this stage.

HIS HONOUR:   I will need to ask you after I have heard from Mr McIntyre what your attitude is to his application for intervention, but I will do that in due course.

MR CASTAN:   If your Honour please.

HIS HONOUR:   Mr Solicitor for Queensland.

MR KEANE:   Your Honour, we agree with what Mr Castan said in relation to the preparation of the case, and we agree that any documents outside volume 1 and the agreed statement of fact we will provide by way of photocopy to the Court.  There may be a couple of pages from volume 2 in that regard and we will be providing the Court with the relevant legislation, which is also in the record, but perhaps the Court should have that separately.

HIS HONOUR:   Yes.  That will be bound in a volume, will it, the separate legislation?

MR KEANE:   Yes.  My learned friend mentions that it has already been bound and supplied.

HIS HONOUR:   Is it necessary for any purpose of the argument to identify amendments to legislation at specific periods?

MR KEANE:   In respect of a couple of the arguments it is necessary to follow through amendments referring to earlier legislation, but the course of the legislative history has been traced in the judgment of the President and in the judgment of Justice Hill.  So that that exercise is necessary, but it has been done and it is a matter of looking at it, I think.

HIS HONOUR:   And the bound volumes of legislation, we can refer to those in order to pick up the history as it - - -

MR KEANE:   Yes.

HIS HONOUR:   Yes, very well.

MR KEANE:   Your Honour,  the next thing relates to our learned friend’s intimation of his intention to provide the Court with a further summary, and no doubt it will be a helpful summary.  For our part, having regard to the quite extensive written submissions that have been exchanged, we think it would be desirable, particularly for those of us coming after, if there could be a direction that any further written submission, including the summary of submissions, might be provided at some time before our learned friend stands up.  We would like it at the close of business on Friday, if that were possible.  If that were inconvenient, we would still prefer it some time before the commencement of the hearing on Wednesday.

HIS HONOUR:   Yes.  I must say, I understood that this was not to contain any surprises; it is simply an abbreviation, however, I take the force of what you are saying.

MR KEANE:   Thank you, your Honour.  Your Honour, the only other think in relation to questions of times ‑ subject ‑ I should not say it is subject to ‑ subject to inconvenience or injury time, but we would expect that we could deal with the oral submissions we wish to make in about two hours.

HIS HONOUR:   Yes.

MR KEANE:   Bearing in mind the written submissions indicate emphasis by different parties on different aspects.

Your Honour, I should mention as well, we have been informed that South Australia and Victoria intend to intervene as well, or to seek leave to intervene.

HIS HONOUR:   Yes.  Now, has there been any discussion between yourself and Mr Fraser as to the division of argument on the subject, or is it a matter of cumulative argument on the same points?

MR KEANE:   There are some different arguments that your Honour has already adverted to in relation to the 1883 lease and the question of reservation or non-reservation.  Apart from that, we have not divided

responsibility but perhaps we could do that to ensure that we do not repeat or exceed our times.

HIS HONOUR:   What I had in mind is that we would specify times for yourself and Mr Fraser but as between the two of you, if you chose to vary the portions of the aggregate, that would be a matter for you.

MR KEANE:   That will be satisfactory for us, your Honour.

HIS HONOUR:   I will see what Mr Fraser has to say.

MR FRASER:   That course would certainly be acceptable to us, your Honour.  I would be anticipating, perhaps, only having orally to argue on our notice of contention; so that there should not be any particular difficulty about it.

HIS HONOUR:   Yes.  On the notice of contention, I take it that the facts relating to it would have been opened up by the time you get to your feet.

MR FRASER:   I am sure that is so. 

HIS HONOUR:   But you may need to supplement it, I suppose, in some way?

MR FRASER:   I think that is very unlikely, actually.

BRENNAN CJ:   Well now, are the arguments that you are likely to present on the 1883 Act significantly different from those of the Solicitor?

MR FRASER:   No.  In fact, as I really expected, the only contentions I would have to make would be specifically the contentions with respect to our notice of contention, but I have not discussed the matter with the Solicitor‑General.

HIS HONOUR:   I must say, reading the respective submissions, I rather thought that there was a significantly different approach, but it is something which you might care to consider, and if there were to be any amendments, again, that should be done well before time.

MR FRASER:   Your Honour has the advantage of me, because I have not read the State submissions yet.

HIS HONOUR:   Oh, I see.

MR FRASER:   The only other thing I should mention - a procedural matter ‑ is that we have lodged a replacement set of our submissions, in which the text does not differ ‑ ‑ ‑

HIS HONOUR:   The text of your notice of contention does not differ?

MR FRASER:   The text of the submissions does not differ either, except for typographical errors and references to agreed facts.

HIS HONOUR:   How long do you expect that you would need?

MR FRASER:   In oral argument, I would expect certainly less than an hour.

HIS HONOUR:   Yes.  Thank you, Mr Fraser.  Mr Solicitor for the Commonwealth.

MR GRIFFITH:   Your Honour, the Commonwealth intends to put a principle with a non‑repetitious argument on questions 1 and 2.  It does not intend to make submissions to the Court on question 3.  We did have some anxiety when we were served with some 19 volumes of materials in connection with particularly the question 3 issue that the time which we saw essential to deal with the matter of public interest whereby the Attorney intervened in the question 2 issue, your Honour, might become inappropriately confined.  So I did circulate the parties with a proposal that I intended to apply to your Honour for an order that questions 1 and 2 be disposed of first before question 3.  That is in the context of wishing to ensure that there is appropriate time given to question 2.  If there are time constraints, it should be question 3 which should suffer either by deferment or going over to written submissions or the like.

Your Honour, in view of the indications of times which have been given hitherto, it may be that our anxieties can be accommodated in the context of the times being fixed.  We would expect our submissions to be less than an hour and a half.  We say that having this morning received copies of the two volumes of the applicants’ written submissions.  It is unfortunate that the written submissions filed yesterday have been simultaneous rather than in response.  We do notice that volume 2 does have firstly an article by McNeil from Canada, if I can call it an article - some could call it a book - and also we have Professor Reynolds and associate, writing new literature.  We have not had a chance to absorb that.

There is always a difficulty with new literature coming forward during the course of a case in that one can have anxieties.  The literature might be directed from the point of view of creating new doctrine to influence a case.  We will have to consider our response to that, but we would desire an opportunity to prepare a written response to that technical aspect, so we need not detain the Court.

HIS HONOUR:   That is to volume 2 of the submissions?

MR GRIFFITH:   Yes, your Honour.  So far as possible in our submissions to the Court, if there are matters of dense argument, we would propose, as I foreshadowed when this matter came on for special leave in Sydney last year, to prepare any further detailed submission as to that and bind it together and in that way reduce our time of oral submission to the barest minimum, concentrating on the salient points.  So in that context, your Honour, if it is the case that the principal parties are able, as they indicate to your Honour, to deal with questions 1, 2 and 3 in something under two days - we say well under two days - the Commonwealth indicates that it would require no more than an hour and a half on questions 1 and 2.  So that it might be that we do not have to press our anxieties by pursuing our application that questions 1 and 2 could be disposed of and those parties with no interest in question 3 then could be excused.

HIS HONOUR:   It might be difficult conceptually, at least at this stage, or a priori to separate question 3, but I think that probably what you say is right in terms of the way in which it can be disposed of by the parties.

MR GRIFFITH:   We do not really have a difficulty in doing that, your Honour, but this has been an exceptional procedure and we do see that difficulties may still emerge.  So although it has complied with the rigours of the public interest in bringing the matter forward quickly, this problem of simultaneous exchange does cause some disparity which will have to be resolved by the completion of argument.  On the indications so far, your Honour, the Commonwealth is content for the matters to run within the sanctions of a time frame ordered by your Honour.  If we have no more than an hour and a half, we would expect to finish comfortably in less than that period.

HIS HONOUR:   Mr Solicitor, what is your interest in the 1883 lease question?

MR GRIFFITH:   Your Honour, we are interested in arguing the permutations of reservation and not reservation.  So, your Honour, our basic issue is of the principle.  We are not concerned so much with the detail of the factual background, but to get to the point of principle.  If there is a lease with a reservation, what is the consequence - reservation in this form - if

there is a lease with no reservation.  So that in essence we are interested in the high principle and do not intend to get involved with the nuts and bolts of establishing the particular leases here.

HIS HONOUR:   Yes.

MR GRIFFITH:   If your Honour pleases.

HIS HONOUR:   Mr Solicitor for the Northern Territory.

MR PAULING:   Your Honour, we do not seek to be heard at all on questions 1 and 3, being content respectively to adopt the submissions of the Commonwealth and Queensland.  In respect of question 2, we have filed a brief - a written submission - and we would not seek to supplement that with oral submissions except on one minor point, or it may be a major point, but on the point as to the creation of interests in land without the issue of a document.  I am trying to lodge a very brief supplementary affidavit to say that in the Northern Territory, under South Australian administration, in fact, leases were granted without a document ever issuing, and that goes to merely point out that the situation in Queensland was not unique in that respect.

HIS HONOUR:   Ten minutes would see you out, Mr Pauling?

MR PAULING:   Yes, your Honour.

HIS HONOUR:   Ms Wheeler.

MS WHEELER:   If it please your Honour.  Our written submissions address questions 1 and 2 and the notice of contention.  We would have thought if no development of those points that we particularly wish to emphasise has taken place prior to our oral submissions, then it would take us half an hour but that may well depend upon the course of argument prior to our getting to our feet.

HIS HONOUR:   I am not sure, but I had rather the impression that there were two points of yours.  One was the specific course of procedure adopted in this case and the other was the presumption of the law being known which was perhaps emphasised more in your submissions than in others.

MS WHEELER:   Yes, that is in relation to the first question, your Honour, yes.

HIS HONOUR:   Assuming that the points that you wish to develop are not developed before you are called on, how long do you expect that your submissions would need to take?

MS WHEELER:   I am sorry.  Is your Honour asking me in relation to the first question only, or the whole of the submission?

HIS HONOUR:   The whole of the submissions.

MS WHEELER:   Half an hour would see us out, I would have thought.

HIS HONOUR:   Half an hour.  You are, I gather, particularly interested in the question of the 1883 lease?

MS WHEELER:   Yes, your Honour.

HIS HONOUR:   What is your attitude to the intervention of the Kimberley Land Council?

MS WHEELER:   I have no instructions in relation to that.  We have been served with the notice of motion and the draft affidavit and I have been instructed to make no submissions in relation to that.

HIS HONOUR:   Thank you.  Is there anything else you wish to raise.

MS WHEELER:   No, thank you, your Honour.

HIS HONOUR:   Mr Hughston.

MR HUGHSTON:   Your Honour, the interest of the Attorney‑General for New South Wales is confined to the pastoral lease issues which are now being referred to as questions 2 and 3.  We are as equally interested in the 1883 pastoral lease as we are in the 1904 pastoral lease because we are interested in having determined the principal question of what effect a pastoral lease has on native title, whether it contains a reservation or does not contain a reservation.  The Attorney‑General is not interested in question 1, the procedural arguments.  At this stage it is anticipated that we will probably be happy to adopt the submissions of the Commonwealth and Queensland on questions 2 and 3.  If that is the case, we would be extremely brief, if your Honour pleases.

HIS HONOUR:   A quarter of an hour?

MR HUGHSTON:   Yes, your Honour.

HIS HONOUR:   Thank you.  In relation to Victoria and South Australia, has anybody present at the Bar table got any information as to the time which counsel for either of those places is likely to take?

MR KEANE:   Only in relation to Victoria, your Honour.  Mr Graham has indicated that he would expect to be very brief indeed.

HIS HONOUR:   Yes.  You have not any information on South Australia?

MR KEANE:   No, I do not, your Honour, I am sorry.

HIS HONOUR:   Very well.  Mr McIntyre.

MR McINTYRE:   Yes, your Honour.  The role which the Kimberley Land Council seeks to play in this matter is ‑ ‑ ‑

HIS HONOUR:   Just a moment until I get the submissions out, Mr McIntyre.

MR McINTYRE:   The document which is headed Summary of Contentions for the Kimberley Land Council you will see really as a summary of the history of Western Australia in relation to pastoral leases as we see it.  It relies on some supporting documents.  That really suggests the role that we seek to play which is a similar role to the one Mr Pauling indicated in relation to the Northern Territory, that whilst we understand that clearly the Court is dealing with the State of Queensland, to the extent that it may be helpful for it in analysing these concepts in a broader context we seek to provide some of that context as it is indicated in Western Australia.  That would, we hope, supplement just slightly the contentions being put for the applicants in these proceedings and in most respects we would adopt the general analysis that the applicants have adopted in a general sense.

All that we seek to do is to say when your Honours are considering that analysis, it may assist some members of the Court to look to how things develop in Western Australia.  We note, for instance, having read yesterday Justice Drummond’s decision in the Wik Case, he points out when he is analysing a similar set of circumstances in Queensland that there may well have been a slightly different historical procedure in Western Australia which distinguishes Western Australia from Queensland.

HIS HONOUR:   As I understand what you are saying, it is designed to assist the Court by providing, as it were, a caution about the adoption of any language in relation to Queensland which may have no application to Western Australia.  Is that right?

MR McINTYRE:   I think that is right, your Honour.

HIS HONOUR:   If that is the purpose of the intervention, it would obviously be of assistance to have those distinctions articulated in some form rather than to be given a brief synopsis of the history of Western Australia or of its legislation.

MR McINTYRE:   Yes.  What I had in mind was that before I was given an opportunity to rise to my feet next week, I would have a short document which did that.

HIS HONOUR:   Yes.

MR McINTYRE:   To be frank, the document that you have in front of you now was primarily compiled by an historian, as has happened in other submissions of a similar kind.  We have not, up until now, had the full collection of documents which the other parties have had.  We are now accumulating them.  I would think before the 7th, we would be in a position to prepare a short document of two or three pages which did precisely that.

HIS HONOUR:   If you were given leave to intervene, how long do you expect your intervention to take orally?

MR McINTYRE:   Under 20 minutes.

HIS HONOUR:   I see.  I have to call on you again, but I would like to know what the attitude of the other counsel is to your application for intervention.  Mr Castan.

MR CASTAN:   I support my learned friend’s application.

MR KEANE:   Your Honour, we neither support nor oppose.

MR FRASER:   We are in the same position, your Honour.

HIS HONOUR:   I do not know whether this is a relevant question of you, Mr Solicitor.

MR GRIFFITH:   Probably not, except we would like to protect time if there is a constraint on time.  I was just going to say we have no objection but we have already seen a summary of contentions that seem to make these

points in detail.  If there is a further written submission, I would have thought 10 minutes orally would see my friend out, but we are quite happy for him to make submissions, short ones, your Honour.

HIS HONOUR:   Does any other counsel at the table have anything specific they want to say about the application for intervention, even though he may not have any right to do so?

Mr McIntyre, you will obviously have to make your application for leave to intervene to the Full Bench of the Court, but it would be desirable, obviously, to have whatever written material you propose, if intervention is granted, available before the 7th, and indeed, to be distributed to the other counsel and filed in the Court before that date.

MR McINTYRE:   Certainly, your Honour.

HIS HONOUR:   Having regard to the estimates of time, it seems as though your application to be allowed a day can probably be granted, Mr Castan.

MR CASTAN:   I am indebted to my learned friends and to your Honour.

HIS HONOUR:   The time for the two respondents, it seems to me, could be extended to four hours as between the two.  If there is no agreement otherwise, I would think that it should be two and a half hours for the State of Queensland, and one and a half hours for the second respondent.

The times specified by the other counsel in their submissions are obviously acceptable and those times can be taken as the times which will be allocated by the Court.  Now, clearly the times that I have mentioned are times which are capable of extension by the Full Bench.  The Court, however, is not in a position to have the case run over the allotted period of three days, and I would therefore invite counsel to use their best endeavours to tailor their submissions in a way which will allow sufficient time for questioning by the Court on issues that might be thought to be contentious and, nevertheless, to adhere to the times which we have discussed here today.

If it were otherwise, then it would be necessary to impose the time limits with some severity and to, perhaps, require any reply to be done by way of writing, but it is unlikely that the Court will be able to extend the hearing period beyond the three days that have been allocated.  Are there any other matters?

MR CASTAN:   There was one matter my learned friend, Mr Keane, asked that some  indication be given as to the summary of contentions that I said that we would prepare, that would be along the lines of what we might call the ‑ in accordance with the ordinary rules, and I am most anxious, your Honour, for that to be as tightly and as well put together as it can, and experience suggests that closer to the moment of hearing, rather than earlier, is a better way of doing that.

HIS HONOUR:   Am I right in thinking that you do not propose to develop new arguments in this?

MR CASTAN:   That is correct, your Honour.

HIS HONOUR:   It is a mere matter of summary?

MR CASTAN:   It is a matter of summarising it and summarising it in the best possible way and I would offer the suggestion that it will be made available in the afternoon of Tuesday.  And I say that because, while of course one can do the work earlier, there is a certain focus of concentration that appearing in this Court brings to bear, and the old maxim applies, your Honour.

HIS HONOUR:   That has a certain ring of familiarity about it, Mr Castan, but I would have thought that perhaps by mid afternoon Tuesday would be appropriate because it would give counsel an opportunity to have a look at it and to discuss the matter and, if need be, get instructions before close of business.

MR CASTAN:   If your Honour please.

HIS HONOUR:    I would also indicate that the application by the Kimberley Land Council to intervene I would have thought could come conveniently at the end of the other interventions.  I have noted that I have not got a time to be allocated to Victoria, but I would indicate that that would be a half hour, the same as South Australia.  Hopefully neither of those times will be fully occupied.

If there are no other matters, I will adjourn now.

AT 12.08 PM THE MATTER WAS ADJOURNED