Rose & Ors v NSW Native Title Services & Anor

[2006] HCATrans 264

[2006] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M93 of 2005

B e t w e e n -

REGINA ROSE

First Applicant

LINDSAY MOBOURNE

Second Applicant

DOT MULLETT

Third Applicant

FRANK HOOD

Fourth Applicant

PAULINE MULLETT

Fifth Applicant

and

NEW SOUTH WALES TITLE SERVICES LTD

First Respondent

NYARMIN ABORIGINAL CORPORATION

Second Respondent

Application for solicitor to cease to act

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 25 MAY 2006, AT 9.42 AM

Copyright in the High Court of Australia

__________________

MS A. RICHARDS, QC:   If the Court pleases, I appear on behalf of the applicants.  (instructed by Holding Redlich)

MS P. MULLETT appeared in person.

HER HONOUR:   Yes, Ms Richards.

MS RICHARDS:   Perhaps I should qualify that and say on behalf of the solicitors Holding Redlich who seek leave to withdraw from the record in this matter. 

HER HONOUR:   Yes.

MS RICHARDS:   The applicants in person, as the fifth‑named applicant, Ms Pauline Mullett, she is in attendance here today.  I understand your Honour has read the papers.

HER HONOUR:   Yes.

MS RICHARDS:   There is the affidavit of Ms Mandy Anne Lloyd sworn on 2 May 2006 which accompanies the application seeking leave for the solicitors to withdraw.

HER HONOUR:   Yes, I have read that.

MS RICHARDS:   Does your Honour wish me to take your Honour to any particular part of the affidavit?

HER HONOUR:   The only curiosity, I suppose, is why the application is being made now rather than in circumstances where an expert’s report has in fact been received.  If that could be clarified just briefly, that would be of assistance.

MS RICHARDS:   Absolutely, your Honour.  The desire to withdraw first occurred in February of this year when the application books were required to be filed and the solicitors were a little reluctant to incur the costs at that time.  Indeed, at that time the appointment of an independent court expert had not been made, nor indeed had funding been able to be obtained for the purpose of retaining such an expert, and at that stage – and there are exhibits to the affidavit, in particular AL‑1 to AL‑3 – there was correspondence with the other side seeking consent orders that the matter be stood in abeyance. 

Then there was the court decision to appoint – at that point in time when the solicitors for the respondents refused to consent to the matter being placed in abeyance, my solicitors prepared the application book and filed them.  At that point in time also it was indicated by the Registry that the matter may be up for hearing with the special leave applications to be heard in April of this year.  Consequent upon that, the correspondence passed and the consent was not forthcoming.  

We then wrote to the High Court on 20 March 2006 and at that stage the court had determined that an independent expert would be appointed and we sought that the matter – because it was still understood that it was possible that the special leave application be heard in April and yet the court appointed expert was not due to report back to the court until 31 May, we sought then that the matter be placed in abeyance.  It is only because of our best guesses as to when the special leave application may have been fixed.

HER HONOUR:   Yes, I see.

MS RICHARDS:   So finally – and, of course, the Registrar wrote or indicated to our instructing solicitors that we would need to make formal application, having conferred with our clients again and having sent out the formal written letter that is required under rule 6 of the Court Rules.  On 31 March I think that letter went out.  Then there was a telephone conference on 24 April and we then filed on 2 May the written application as, if you like, indicated was needed, and was needed. 

So it is sort of like the juxtaposition of the thinking as to when the Court dates might have been as to special leave.  Now, as I understand it, as of yesterday, it is being suggested that the special leave application may not be heard or fixed until August, in which case by then, of course, one would expect in the normal course of events, and certainly it seems that the Federal Court expects, that the expert’s report will have been finalised.  There is a directions hearing on 14 June. 

I should indicate, your Honour, that insofar as we know, and we do not know – and when I say “we” in this case I refer to the legal representatives – there was a meeting, or a mediation convened by the Native Title Tribunal last Friday, on 19 May, and there was an oral report given by the expert.  I understand that that oral report was not the expert’s concluded report or concluded view. 

As I understand it, and because of the orders as to confidentiality of the court, we are not privy or able to be fully informed of the – because we do not act in the Native Title proceedings in the Federal Court, but I understand that further evidence has been sought by the expert and there is to be a further mediation on – and this I do know because we have been informed by the registrar of the Native Title Tribunal – that there is to be a further meeting between the expert and the respective parties to the Native Title proceedings on 26 May, only tomorrow. 

All I can say in that respect thereafter, your Honour, is that insofar as the Federal Court orders stand, there is to be a written report filed with the court on 31 May.  Indeed, it may be the expert has not sufficient time, but I cannot say.  Then, of course, there is the directions hearing on 14 June where we all hope that maybe there will be a final report.  Insofar as that report is final, I suppose all the parties hope that it is clear.

HER HONOUR:   Yes.

MS RICHARDS:   That is the other uncertainty, of course, with which everyone is dealing.

HER HONOUR:   I suppose the only order needed today from the point of view of the solicitors is that the leave be granted to withdraw.

MS RICHARDS:   Yes.

HER HONOUR:   No orders as to costs obviously and an inquiry to be made of Ms Pauline Mullett as to an address for service in the future.

MS RICHARDS:   Yes.

HER HONOUR:   Otherwise there would be nothing further required other than to give an indication that Registry will contact both parties about a date for listing of the special leave in due course.

MS RICHARDS:   Thank you, your Honour.

HER HONOUR:   Perhaps I should ask you, Ms Richards, would you be able to obtain from Ms Mullett an address for service in the future or explain to her the need for Ms Mullett to speak to the Registrar at the determination of this hearing.

MS RICHARDS:   I certainly will do that.

HER HONOUR:   Ms Mullett, is there anything you wish to say to me?

MS MULLETT:   Not at this stage, your Honour.

HER HONOUR:   Yes.  The most important thing is for the Registry to be in possession of clear contact details having regard to the fact that Holding Redlich will be no longer involved.

MS MULLETT:   That is correct.

HER HONOUR:   Yes.  Thank you for your help, Ms Richards.

MS RICHARDS:   Thank you, your Honour.

HER HONOUR:   The order I would make is that leave be granted to the solicitor for the applicants to withdraw as solicitor pursuant to rule 6.02.5(c).  Nothing further?

MS RICHARDS:   Nothing further, your Honour.

HER HONOUR:   Thank you.  Adjourn the Court.

AT 9.50 AM THE MATTER WAS CONCLUDED