O'Grady v The North Queensland Company Limited

[1990] HCATrans 57

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B23 of 1989

B e t w e e n -

WALLER STANDISH O'GRADY

Respondent£pplicant

and

THE NORTH QUEENSLAND COMPANY

LIMITED

Applicant/Respondent

Application for revocation

of grant of special leave

BRENNAN J
DAWSON J
TOOHEY J

O'Grady(3)

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 APRIL 1990, AT 10.02 AM

Copyright in the High Court of Australia

C2T 1/ 1 /FK 1 4/4/90

MR L. HARRISON, QC:  May it please the Court, I appear with

my learned friend, MR P.STEPHENS, for the applicant.

(instructed by Macdonnells)

MR D. JACKSON{ QC:  May it please the Court, I appear with

my earned friend, MR P.R. DUTNEY, for the

respondent. (instructed by Gary T. Down)

BRENNAN J:	Yes, Mr Harrison.
MR HARRISON:	If the Court pleases, may I pass up a brief

outline of submissions and also a chronology?

BRENNAN J: Yes.

MR HARRISON:  Your Honours, I should say, in relation to

paragraph (b), that refers to a matter that was

mentioned in an affidavit that has gone astray with

the courier taking it to the wrong destination, simply

referring to one other proceeding in which the point

was raised between the same parties - that is the

point as to jurisdiction between the same parties,

as these proceedings in which litigation had started

in the wardens court, and the warden had declined

jurisdiction. That material is not before you because

the affidavit, as I said, went astray.

If the Court pleases, this is an application to

rescind the grant of special leave on 30 June. The

appeal was argued before the Court on 14 November

last year.

(Continued on page 3)

C2Tl/2/FK	2
O'Grady(3)
MR HARRISON (continumng):	The only matter before the

Court was the application of section 80 of the

MINING ACT 1968 which confers exclusive jurisdiction

on the mining warden's court in respect of matters

within that court's jurisdiction.

TOOHEY J: Mr Harrison, is there anything known now that

was not known at the time the appeal was argued

that is relevant to the application for revocation?

MR HARRISON:  What was not known - although it was the

fact - was that the Act, the MINERAL RESOURCES

ACT, had been passed and contained provisions -

firstly, repealing the MINING ACT and, secondly,

conferring jurisdiction on the mining warden's
court which was not exclusive jurisdiction; that

is, setting up a regime in which proceedings

could be brought either in the supreme court,
the district court or the mining warden's court
with power in the supreme court, in effect, to

determine which was the most appropriate court.

That Act had been passed, the relevant provisions

had not then been proclaimed and have not now

been proclaimed but there was no reference made

to that Act in the argument beforectbe Court.

!_was not aware of it and I am sure my learned

friends were not aware of it.

BRENNAN J:  The position is still the same except that

you have learnt of those facts and you have an

expectation of a proclamation?

MR HARRISON:  Your Honour, the position is not the same

as was before the Court in that the point that
was argued before the Court is one which, in
the ordinary course, one would now expect to

cease to be a.matter of general importance.

McHUGH J:  Why? Because the decision in this Court will

define the jurisdiction of the magistrate's court

and that will be a matter of importance even

if this legislation is passed. (Continued on page 4)

C2T2/l/ND	3	4/4/90
O'Grady(3)

MR HARRISON:  Your Honour, define the jurisdictions

of the wardens - - -

McHUGH J: Of the warden's court.

MR HARRISON:  Your Honour, it will not, in our submission,

be a matter of importance in this sense that

the extreme difficulties that were caused to

litigants were caused by the fact that if one

picked the wrong court that was the end of the

litigation. Here, if there is a doubt then the

parties may resolve that problem by suing in the

supreme or the district court. The fact that

questions could still arise in relation to the

jurisdiction of the warden's court is not so

significant, in that sense and it also -

McHUGH J:	But it is of some importance to the small prospector
is it not, or the small landholder who wants to
go to the warden's court in preference to going to the supreme court?
MR HARRISON:	It may be of some important, yes, Your Honour, but

of course the decision of this Court will be a decision

on a section which has been subject to a number of

amendments which - - -

McHUGH J:	But it still uses the words "arising" in relation to
mining.
MR HARRISON: Certainly	it still uses the relevant words.

What we woula particularly point to though,

Your Honour, is the effect of the decision of this point on the litigation between these particular

parties. This is a case in which the decision would

simply result in relitigation between the same parties

of issues that have been determined by the Full Court.

(Continued on page 5)

C2T3/l/JL	4	4/4/90
O'Grady(3)

MR HARRISON (continuing): It ~d simply involve going back

to the warden's court if the legislation has not

been proclaimed but one would expect it to be

proclaimed. It would simply result in the matter

being reconnnenced, we would think, in the supreme

court. It is our submission that such a course is

most undesirable in these circumstances where it is

not vital to the administration of justice generally

as it was previously to determine the point in

question.

The issues that were litigated before the

Full Court were substantially issues relating to the

interpretation of a particular instrument in the

events that had happened. What will happen if the

matter goes further is simply that fresh proceedings

will be connnenced. There will be a question and

presumably the Court will consider itself not formally

bound by the decision of the Full Court, but as a

practical matter it would seem most improbable that

there would be any other result so that all that will

have happened is that, in effect, the parties have

paid for the determination of this particular point

without advancing their interests on either side

one iota .

TOOHEY J: Well once you focus on the position of the parties

to the litigation, do you not run into the difficulty

that the situation has not' reallychanged since the

appeal was argued? Those matters you point to now

were matters that could have been pointed to late

last year when the appeal was heard.

MR HARRISON:  They could have been pointed to and if they had

been raised it would have been appropriate then for

the Court to consider whether or not the appeal

should be argued. But it is not as though the Court

has considered those points and rejected them that

I am seeking tor· relitigate something that the

Court considered.

.;.· '" (Continued on page 6)

. . . -';:-~

C2T4/l/LW	5	4/4/90
O'Grady(3)

MR HARRISON (continuing): It was a case simply of the

Court being unaware of the passage of the

legislation and, on that basis, in our

submission, the position is different because

it has been raised here for the first time and

because one gets to the position where there is not the extreme need to resolve the point

that initially justified putting the parties

through relitigation of the issues that had

already been determined by the Full Court.

BRENNAN J: Is there anything you wish to add, Mr Harrison?

MR HARRISON:  I do not think I wish to add anything further,

Your Honour.

BRENNAN J:  I need not trouble you, Mr Jackson. The Court

is of the opinion that insufficient grounds have

been shown to justify the making of an order

revoking the grant of special leave and the

application is refused accordingly.

MR JACKSON:  Your Honours, we ask for costs of this

application in any event.

BRENNAN J:  Yes. What do you have to say about that,

Mr Harrison?

MR HARRISON:  Nothing to say.

BRENNAN J: With costs. The Court will adjourn.

AT 10. 13 AM THE MATTER WAS ADJOURNED SINE DIE

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O'Grady(3)