Northern Territory of Australia v GPAO

[1998] HCATrans 177

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D172 of 1997

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Appellant

and

G.P.A.O. (Father)

First Respondent

J.A.W. (Mother)

Second Respondent

SEPARATE REPRESENTATIVE

Third Respondent

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 20 MAY 1998, AT 4.28 PM

Copyright in the High Court of Australia

MR G. GRIFFITH, QC:  Your Honour, I appear with
MR E. WILLHEIM, for the second respondent.  (instructed by the Australian Government Solicitor)

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory of Australia:  I appear for the first respondent your Honour.  (instructed by the Solicitor for the Northern Territory)

MR L.S. KATZ, SC, Solicitor-General for the State of New South Wales:  I appear for the Attorney-General for New South Wales.  (instructed by the Crown Solicitor for New South Wales)

HER HONOUR:   Yes, is that in Darwin?

MR C.R. McDONALD, QC:  Yes, your Honour, I continue to appear for the first respondent.  (instructed by Chapman & Associates Pty Ltd).

HER HONOUR:   Yes, thank you.

MR PAULING:   Perhaps if I could go first, your Honour.  New South Wales intervening and ourselves have each done our drafts, in Mr Katz’ case, his final submissions on the point.  We need a timetable and may we suggest one:  that the Commonwealth provide written submissions by Friday, 29 May;  that the Northern Territory and New South Wales provide written submissions by 5 June, and that the respondent be allowed until 19 June to provide written submissions.  May I additionally say that it is the view of those here in Canberra that this issue will not extend the hearing by any more than an hour.

HER HONOUR:   So it would still be concluded in one day?

MR PAULING:   Subject to those who are engaged in the other issues, and I do not want to be, yes, I think that is probably the case.

HER HONOUR:   And no other Attorneys‑General have been spurred into action by the notices?

MR GRIFFITH:   Your Honour, there is a possibility.  South Australia is still thinking, but that is all we know from them.

HER HONOUR:   Were the notices served on the ACT?

MR GRIFFITH:   Yes, the full house, your Honour.  Your Honour, the other matter:  it would seem to the Commonwealth that it would be the same result, whether it was territory or federal jurisdiction.  But I am not sure whether any party will seek to ‑ ‑ ‑

HER HONOUR:   That may be right, but there may be quite different approaches to how you get there.

MR GRIFFITH:   Of course, yes, your Honour.  But if there were one might call the full monty approach, your Honour, of saying whether Chapter III applies to the territory power, that might be another day.  But I do not think any of the parties are pushing for that.

HER HONOUR:   I do not know.  It depends what reliance is had on section 78.

MR GRIFFITH:   Yes.  We will be ready, your Honour, but ‑ ‑ ‑

HER HONOUR:   And the respondent, I think, relied - well, made reference to it but did not rely on it.

MR GRIFFITH:   Yes.  If it ends up, your Honour, all the parties agree section 79 picks up the territory law, if it does not otherwise apply as a territory law, it might be that there is no real difference to the parties that gets one to the full Chapter III issue.

HER HONOUR:   Yes, thank you.

MR GRIFFITH:   As your Honour please.

HER HONOUR:   Is that timetable acceptable to everyone?

MR GRIFFITH:   I am sorry, your Honour, it is acceptable to us but it might be a bit related to expected date of hearing, your Honour, that it could perhaps go out another week if the hearing is not imminent.

HER HONOUR:   As I understand it, there will be no hearing before August, and possibly not until September.

MR GRIFFITH:   Perhaps we could go out another week for each of the dates then, your Honour.

HER HONOUR:   I think it is probably sufficient to say that -I think New South Wales has already delivered new written submissions anyway.

MR KATZ:   Yes, we have.

HER HONOUR:   And you would not be wishing to provide further submissions?

MR KATZ:   No, no thank you, your Honour.

HER HONOUR:   It is perhaps sufficient, is it not, to say that the Commonwealth should provide its further submissions, if any, within three weeks of todays date and that all other parties and interveners should have 14 days within which to reply and to each other.

MR GRIFFITH:   Thank you, your Honour.

HER HONOUR:   Is there anything else that need be done on this occasion, other than to certify for the attendance of counsel?

MR GRIFFITH:   And to thank your Honour for moving the date and coming so quickly, as the Court pleases.

HER HONOUR:   Thank you.  Is that satisfactory to you in Darwin, Mr McDonald?

MR McDONALD:   Yes, your Honour.  I might just say this, your Honour, in relation to the point that my learned friend, Dr Griffith, raised about the section 78 Chapter III point.  There is tomorrow coming up on a special leave application the case of Wynbyne v Marshall where the applicant contends that Chapter III applies to the several courts of the Northern Territory.  If special leave were granted in that matter, it might be a matter for consideration whether that case was heard sequentially with this.

HER HONOUR:   Yes.  We understand that.  Thank you.  If there is nothing further, I will simply leave it to the parties to file their written submissions in accordance with the procedure already outlined and certify for the attendance of counsel.

The Court will now adjourn.

AT 4.34 PM THE MATTER WAS CONCLUDED