Port MacDonnell Professional Fishermen's Association Inc. & Anor v The State of South Australia

[1988] HCATrans 59

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A38 of 1987

B e t w e e n -

THE PORT MACDONNELL PROFESSIONAL

FISHERMEN'S ASSOCIATION INC. and

RONALD OLLRICH

Plaintiffs

and

THE STATE OF SOUTH AUSTRALIA and

THE COMMONWEALTH OF AUSTRALIA

Respondents

Summons for directions

MASON CJ

(In Chambers)

Fishermen

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 25 AUGUST 1988, AT 9.32 AM

Copyright in the High Court of Australia

AlTl/1/RB 1 25/3/88

MR H.C. WILLIAMS, QC:  May it please Your Honour, I appear

with MR'M. BLUE·for the plaintiffs who are the

a pp 1 i cants today. ( instructed by Thanson Sirrrnons & Co)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If Your Honour please, I appear with MR J. WALTERS

for the respondent State of South Australia.

(instructed by the Crown Solicitor for South

Australia)

MR J. WELLS: If Your Honour please, I appear for the second

respondent. (instructed by the Australian Government

Solicitor)

HIS HONOUR:  Yes, Mr Williams.

MR WILLIAMS: If Your Honour pleases, there are two

applications before Your Honour: firstly, by

consent the parties are asking that the draft

pleadings which have been supplied stand as the

pleadings of the parties. In other words, we

filed original pleadings and we then looked at

our pleadings and are seeking to update them.

HIS HONOUR:  When you say update them, what do you precisely

mean by that, Mr Williams.

MR WILLIAMS:  There was originally an argument as to the

appropriate way of raising certain issues,

Your Honour. Originally, we raised a matter

by way of reply which it was suggested to us

might more appropriately be raised as part of

our statement of claim. We have accepted that

may be the appropriate way to deal with the matter

and, therefore, to avoid any argument we prefer
to adopt the amended statement of claim that

we have put before the Court.

HIS HONOUR:  Does that require any order from me and, if

so, what order do you want?

MR WILLIAMS:  We are simply asking by consent that the

amended drafts stand as the pleadings of the

parties because Your Honour also has before you

amended defences from the defendants to reflect

our pleading.

HIS HONOUR:  Yes, and that is consented t~ Mr Solicitor

and Mr Wells?

MR DOYLE:	Yes, if Your Honour pleases.
MR WELLS:	Yes, if Your Honour pleases.
HIS HONOUR:	Very well, by consent, I shall make an order

that the amended pleadings do stand as the pleadings

of the parties in the action and the amended

AlTl/2/ND	2	25/8/88
Fishermen

pleadings are included in the set of documents

before me described as "Special Case" which I

shall place with the papers and initial.

MR WILLIAMS:  I thank Your Honour. The second matter is

that the parties are inviting Your Honour to

exercise power under section 18 of the JUDICIARY

ACT.

HIS HONOUR:  Are you? I thought you were inviting me to

make an order under the High Court Rules.

MR WILLIAMS:  We have looked at the Rules and it is, from

our point of view, Your Honour, immaterial as to which course is followed. After discussion

this morning we have decided to come here and

put our application on the basis of an application
under section 18, although the matter has been

drafted on the basis of a High Court Rules

application.

HIS HONOUR:  Yes, I had read it as a special case under

Order 35 to which you would only require the signature of the parties but I take it you now wish me to state a case under section 18 of the

JUDICIARY ACT?

MR WILLIAMS:  That is our preference, if Your Honour pleases.

HIS HONOUR: What is the difference between the two? Is

there any difference in terms of the Court's

ability to draw an inference? The Court would

have a capacity to draw an inference, particularly

from the documents that are annexed to a special

case under Order 35. Would the Court have a

like power in relation to a case stated by a

Justice under section 18?

MR WILLIAMS:	We are certainly not suggestin~ that the Court cannot draw inferences and, indeed, I know
that my friend the Solicitor-General is concerned
that the Court should be able to draw inference
and I would certainly be supporting him in that.

HIS HONOUR: Needless to say, I will not make any ruling

on that at the present time but I take it that

you, Mr Solicitor, and you, Mr Wells, are happy

with a case stated under section 18 rather than

Order 35?

MR DOYLE:  For my part, Your Honour, if there was any doubt

about the ability of the Court to draw inferences

then I would prefer that it be a case stated

under Order 35 which is what I thought we were

doing until I arrived this morning. Because I

did not think that there would be any difference

AlTl/3/ND	3
Fishermen

between the two procedures I was prepared to
acquiesce in the case stated under the section
but if there is a doubt about it, as we are both

agreed, it is a case where some limited inferences

may need to be drawn, it would seem to me it

may be wiser just to state a case under Order35

HIS HONOUR:  Yes. I did not look into it because I did

not think that there was question arising as

to a choice between the two. You do have the explicit provision in Order 35 and you do not

have such an explicit provision in section 18.

MR DOYLE:  Yes. No one seems to be able to divine any

signficant difference between them. It may be

safer, if somewhat pusillanimous, just to state

it under Order 35, Your Honour, because we are

each agreed that some inferences may need to

be drawn.

HIS HONOUR:  Yes. What ~o you say about it, Mr Wells?

MR WE1LS: Your Honour, we have no particular preference.

The same concern about drawing of inferences does not affect the Commonwealth as perhaps it

might affect the States so we are content to

follow whatever course is finally decided.

HIS HONOUR: Order 35 may be a little safer but I am o~ly saying

that because, as the Solicitor says, it is the

counsel of pusillanimity rather than anything

else.

MR WILLIAMS:  I am certainly quite content to proceed under

Order 35, Your Honour, if that is the view of

others.

HIS HONOUR:  Very well. Do you want to make any comment

about the questions? There was one point I was

going to raise with you about the questions.

That was the interrelationship of question (2)

and question (3). It did seem to me that the answer

to question (2)(a) might, as it were, pre-empt

the answer to question (3) if it went a certain

way. By that I mean in answering the question

whether section 14 of the FISHERIES ACT South

Australia is within the power conferred on the

Parliament of South Australia. by section 5 of

the COASTAL WATERS (STATE POWERS) ACT 1980, are

you not called upon to determine whether

section 5 of the Commonwealth Act is a valid

law of the Commonwealth? In other words, can

you answer question (2)(a) without coming to

And thus, if you answer (2)(a) 11 Yes 11 you have	some conclusion about the validity of section 5?
already answered question (3).

AlTl/4/ND	4	25/8/88
Fishermen

I do not think there is any great

difficulty about this. It just seems to me,

as a matter of logical order, that it lacks

symmetry.

MR DOYLE:  Your Honour, I think sometines drafting the questions

is harder than arguing the case and we have,

between ourselves -

HIS HONOUR:	I realize that.
MR DOYLE:	- - - been backing and filling on these question

almost endlessly, putting questions in, taking

them out.	On thinking about it, I cannot think
of any answer to what Your Honour says.	I know

at an earlier stage we all mulled them over

and someone, I cannot remember who, did want

question (3) in.

HIS HONOUR:	I think question (3) ought to be in, it ought to be identified as a critical question in the
case,although it just seemed to me to be a precursor of (2)(a).
MR DOYLE:	From our point of view, Your Honour, it would

not seem to do any harm if question (3) became,

in effect, question (2) and just said, "Is

section 5 a valid law?" and then question, what

is now, (2) could become (3) and stay as is.

HIS HONOUR:  Yes, that is what occurred to me. Otherwise,

it seemed to me that the questions were in order

and raise what the parties have in mind so far

as I had divined it from looking at the pleadings

and the nature of the case.

MR WILLIAMS: 

I accept what has fallen from Your Honour

and from my friend the Solicitor, Your Honour,
namely that questions (2) and (3) would be better

transposed.

HIS HONOUR:  Yes. Mr Wells, have you any comment on that?

MR WELLS:  The only comment I would make, Your Honour,

is this, that we have taken (2)(a) as raising

a question as to the terms of the power under

the Commonwealth Act.

HIS HONOUR:  I am sure that is what it is designed to do

but the difficulty is that the language travels

further than the mere terms, does it not?

MR WELLS:	That is true.
HIS HONOUR:	I mean, if you say that it is within the power,

are you not asserting that there is a valid power?

AlTl/5/ND	5	25/8/88
Fishermen

MR WELLS: With respect, I agree. If, however, one were

to take (a) as simply referring to the terms of the power, there may be circumstances, of

course, in which it would be unnecessary to determine

validity because the terms of the power do not
extend to what the FISHERIES ACT may have purported

to do.

HIS HONOUR:  That would lead really to the omission of

question (3) as a question, is that what you

are suggesting?

MR WELLS:  No, Your Honour. If one read it that way it

would justify question (3) being in the order

in which it now stands, provided one reads (2)(a)

as referring only to the terms of the power and

not the power including its validity. I think

that is probably what was in the minds of the

parties.

HIS HONOUR:	Do you think you can amend (2)(a) in such a way as to make it clear that you are not seeking
under (2)(a) to raise power as an ingredient
of the question? If you could do it that way, that would be the cleanest way of doing it.
MR WELLS:	Yes, that would be our preference, Your Honour.
HIS HONOUR:	Do you think you can do that?
MR WELLS:	Yes, I think so.

HIS HONOUR: After all, we do not have to actually settle

the terms of the special case today. All you

need from me, I think, is an order under 35,

is it not?

MR WELLS:	But in any event, Your Honour, it may not be a long matter and to change (2)(a) so that it
makes that point clear I would propose that it
be expressed in the way that I suggested, that
is within the terms of the power.
HIS HONOUR:	What do you say about that Mr Williams,

Mr Solicitor?

MR WILLIAMS:	Yes, I would accept Mr Wells' suggestion.
HIS HONOUR:	Would you be happy with that, Mr Solicitor?

MR DOYLE:  Yes, Your Honour. I just wonder whether we

should sax' "within the terms of the pow_er purportedly

conferred to make it clear that we are only

looking at "terms".

HIS HONOUR:  Yes. Are you happy with that, Mr Wells.

MR WELLS:  Thank you, Your Honour, yes.

AlTl/6/ND	6	25/8/88
Fishermen

HIS HONOUR:	Are there any other comments on the questions?
MR WELLS:	No, Your Honour.
MR WILLIAMS:	We have nothing.
MR DOYLE:	No, Your Honour.

HIS HONOUR: It seems to me that I should make an order in accordance with Order 35 rule 2 that there

are, in these proceedings, questions of law which

it would be convenient to have decided before

any evidence is given or any issue of fact

determined and that in light of that I should

make an order accordingly and direct that the

questions of law stated in the draft special

cas~ which I have already initialled and plac~

with the papers, should be raised for the opinion

of the Full Court by special case.

I think that concludes the matter, does

it not, Mr Williams?

MR WILLIAMS:	That is all that we seek.
HIS HONOUR:	I should ask you, when do you think that this

matter will be ready for hearing?

MR WILLIAMS:  We would be ready to argue the matter as

from October onwards, Your Honour.

HIS HONOUR:	And the estimate is?
MR WILLIAMS:	About two days.
HIS HONOUR:	And the estimate is for approximately two

days, very well. The Court will now adjourn.

AT 9.45 AM THE MATTER WAS ADJOURNED SINE DIE

AlTl/7/ND	7	25/8/88
Fishermen