Rose & Ors v NSW Native Title Services Ltd & Anor

[2006] HCATrans 535

[2006] HCATrans 535

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 NATIVE TITLE SERVICES LTD

First Respondent

NYARMIN ABORIGINAL CORPORATION

Second Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 SEPTEMBER 2006, AT 11.55 AM

Copyright in the High Court of Australia

__________________

MS P. MULLETT appeared in person.

MR N. LUCARELLI, QC:   If the Court pleases, I appear with my learned friend, MR B.L.S. FITZMAURICE, for the second respondent.  (instructed by Horowitz & Bilinsky)

KIRBY J:   In this matter I have a certificate from the Deputy Registrar indicating that the first respondent submits to the orders of the Court save as to costs.  Now, you are appearing for the applicant in person, is that correct?

MS MULLETT:   I am representing Mrs Rose.

KIRBY J:   Yes, Ms Mullett.  Maybe if you could come to the centre it will be easier to see you.

MS MULLETT:   Sorry, your Honour, I am unfamiliar with ‑ ‑ ‑

KIRBY J:   You have pride of place.

MS MULLETT:   Yes.  Your Honour, I am seeking from the Court today a special leave application.  I am a bit confused with the High Court Rules.  I am understanding

that I am supposed to submit an oral submission to you.  I am seeking from the Court today extra time to submit that oral argument and a submission on the grounds of my special leave pending the outcomes of the Federal Court determinations on this application.

KIRBY J:   So you are asking for an adjournment of this application, are you ‑ ‑ ‑

MS MULLETT:   Yes, your Honour.

KIRBY J:   ‑ ‑ ‑ in order to study the recent decision of the Federal Court in a matter?

MS MULLETT:   No, your Honour, I want an adjournment so I can then put in extra evidence to submit the oral submission to why I am seeking the application for special leave.

KIRBY J: I am afraid that would not be a good reason for an adjournment because in this Court we do not receive evidence relevant to the substance of the matter. Sometimes in special leave applications you can receive evidence to show that the matter is important, but this Court has said, because of the nature of the appeal to it under the Constitution, that it cannot and will not receive fresh evidence. We just have to deal with matters on the basis of the record of the courts below.

MS MULLETT:   Yes, your Honour.  All I am seeking is that – given the opportunity that we did not understand the letter from the High Court asking us to put in an oral submission.  We are seeking some extra time from your Court…..your Honours, to give us extra time so I can come back and submit the oral submission as to proceedings to the High Court to then have my ‑ ‑ ‑

KIRBY J:   Would there by any chance that you would come back with a legal representative, because the issue of trusts that you are raising in your application is a technical issue and normally the Court would want to have some assistance from people who are expert in the law on such questions.

MS MULLETT:   If it pleases your Honour, I do not have a legal representative.  I do not know if I am allowed to ask the Court for a pro bono to help the Kurnai people on this application, or simply it is a matter of the Kurnai people doing it themselves and putting in the oral submission of the argument.

KIRBY J:   Mr Lucarelli, what would be your attitude to the Court permitting some extra time but requiring that any future submissions of the applicants in these proceedings be put in writing and then dealt with by the Court on the basis of written submissions?

MR LUCARELLI:   So that there would be no further need for an appearance; is that what your Honour has in mind?

KIRBY J:   I did not hear that.  You are not opposing that course?

MR LUCARELLI:   Your Honour, I was asking whether what your Honour intends is that then there be no further need for appearance.

HAYNE J:   Not unless the Court wanted it.  If the Court thought that oral argument would be beneficial, no doubt we would reserve that possibility.

MR LUCARELLI:   I would need to get some instructions because this matter has been outstanding for a long time and obviously ‑ ‑ ‑

KIRBY J:   Can you do that now?

MR LUCARELLI:   I can see whether I can get those instructions.

KIRBY J:   Do you have your solicitors in Court, or not?

MR LUCARELLI:   Yes, he is in Court.  I can ask.

KIRBY J:   Will we stand the matter down in the list and come back to it as soon as you have instructions?

MR LUCARELLI:   If the Court pleases.

KIRBY J:   Yes, that would be the view of the Court at the moment, that the applicant, subject to anything you want to say, should have extra time to put in any written submissions that she would wish to place before the Court and then the Court would consider whether it can fairly to the parties deal with the matter on the written submissions, reserving to itself of course the right to have the matter brought back for oral elaboration, but perhaps dealing with the matter on the written submissions if that was the appropriate course.

MR LUCARELLI:   I will get instructions along those lines.

KIRBY J:   Very well.  You can, when you are ready, mention this at a later stage.  Did you understand what I have just said, Ms Mullett?

MS MULLETT:   No, I did not, your Honour.

KIRBY J:   Well, you have asked for an adjournment.

MS MULLETT:   Yes.

KIRBY J:   The other side are here with senior and junior counsel and their lawyers and others and normally the Court would not adjourn the matter because everyone is here ready to deal with the matter. 

MS MULLETT:   I understand that, your Honour.

KIRBY J:   However, because you are not legally represented today and because it may be that by written submissions you can get some help and put written submissions to the Court that will help us, we could perhaps then deal with the matter solely on written submissions and you would not get a chance again to put oral submissions unless the Court, reading your further written submissions and any that it provokes from the respondent, thought that that was necessary in the interests of justice for you and for the respondent.  But you would quite possibly lose your chance of making oral submissions to the Court.  Do you understand that?

MS MULLETT:   Yes, I do.

KIRBY J:   You are still going ahead with your application for the adjournment?

MS MULLETT:   Yes, I am.

KIRBY J:   Very well.  On the basis that I indicated, the respondents, when ready, can come back into Court and indicate whether they oppose that course.  If they do not, that would be the course the Court would be minded to take.  Can you wait around just for a little time?

MS MULLETT:   Yes, your Honour.

KIRBY J:   It may not take very long and then this matter can be mentioned at a later stage.

MR LUCARELLI:   It would obviously be anticipated that the respondents would be permitted to put in written responses to whatever is put in, I take it, as part of what the Court is saying?

KIRBY J:   Yes, of course, you would have the facility of putting in a written response in answer to that of the applicant.

MR LUCARELLI:   If the Court pleases.

KIRBY J:   We will just stand this matter down in the list and it may be mentioned at a later stage.

AT 12.03 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.25 PM:

KIRBY J:   Yes, Mr Lucarelli.

MR LUCARELLI:   The second respondent is content to grant time for the applicants to file a document and we have spoken to Ms Mullett out of Court and a timetable has been agreed of four weeks for the applicants to file the document with the Court and to serve it on the respondents and then the respondents, probably only the second respondent, will put in an answering document within 14 days after that, if that is convenient to the Court.

KIRBY J:   Yes, very well.  Is that a timetable that is suitable to the applicants?

MS MULLETT:   Yes, your Honour.

KIRBY J:   The Court therefore stands over for later determination on the papers the hearing of this application for special leave.  The applicants will have 28 days within which to file further written submissions in support of their application.  The respondents thereafter will have 14 days to file any reply.  The applicants will have seven days after the receipt of the respondents’ reply to file any reply that they wish to file and the Court will make its further orders in disposal of the application for special leave after those submissions are received.  The costs of today will be reserved and disposed of in the determination of the application.

The Court will now adjourn briefly to reconstitute for the following applications.

AT 12.26 PM THE MATTER WAS ADJOURNED