South West Forest Defence Foundation v Dept of Conservation
[1997] HCATrans 394
TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Western Australia
Level 2
16 St Georges Tce
Perth WA 6000
Phone (08) 9325 6029
Fax (08) 9325 7096
HIGH COURT OF AUSTRALIA
TOOHEY J
P31 of 1997
P32 of 1997
P33 of 1997
SOUTH-WEST FOREST DEFENCE
FOUNDATION INC
and
EXECUTIVE DIRECTOR OF THE
DEPARTMENT OF CONSERVATION AND
LAND MANAGEMENT AND ANOTHER
BRIDGETOWN-GREENBUSHES FRIENDS
OF THE FOREST INC
and
EXECUTIVE DIRECTOR OF THE
DEPARTMENT OF CONSERVATION AND
LAND MANAGEMENT AND ANOTHER
PERTH (in Chambers)
10.30 AM, THURSDAY, 18 DECEMBER 1997
Continued from 23.10.97
DR J.T. SCHOOMBEE: I appear with my learned friend MR G. McINTYRE for the appellants in the three matters.
MR G. McINTYRE: Your Honour, perhaps I should indicate that in relation to the third matter there may be other matters in which I would appear separately to supplement what Dr Schoombee has just said.
MR R.M. MITCHELL: I appear for the respondents in each application.
HIS HONOUR: Yes, thank you. Dr Schoombee, before I begin, can I mention two matters.
DR SCHOOMBEE: Yes, sir.
HIS HONOUR: One, I mention largely because yesterday I received the summons for - sit down, please, this is not directed just at you, the three summonses for interlocutory injunctions. I thought I should mention that my wife and I have some land near Toodyay which a little while ago at our request was visited by Land for Wildlife which is some part of CALM - I am not quite sure how it works - but with a view to advising on the bushland in the interests of fauna and flora. And, as a result of that, the block was registered, which I think is a quite informal procedure with CALM and we receive Newsletters relating to maintenance of the bush and so on.
Now, if that causes anybody any concern - it does not cause me any, but if it does you can let me know during the course of the hearing. The other matter is that, as I think counsel probably know, the applications have now been listed for hearing not before 2.15 pm on Wednesday, 1 April, next year before the Full Court sitting in Hobart. Yes, now, Dr Schoombee, I look to you.
DR SCHOOMBEE: Well, we can probably take up with the Registry how much time has been allocated for it.
HIS HONOUR: No, you can take that up with me or I will take it up with you, more accurately.
DR SCHOOMBEE: Well then, I will leave it at this stage, your Honour. But that may be a relevant matter too. Your Honour, the two remaining issues with reference to the date - namely, the 1 April hearing date being resolved - the questions of a settlement of the actual questions and then the question of the injunction and stay application, if it pleases the Court I would deal with the questions first.
HIS HONOUR: Yes. Keep the summons for interlocutory relief separate, Dr Schoombee, until we have worked out what is going to happen with the questions. And as far as that goes, it seems to me - although I am open to be persuaded otherwise - that the most useful way of approaching it would be to look at the list of questions prepared by the respondents in part because they came in first and also because they are more detailed. And I invite you to make your comments on those.
DR SCHOOMBEE: Yes.
HIS HONOUR: We can see to what extent there is common ground in the formulation of the questions and to the extent that it is not possible for the parties to reach common ground, well then, I shall deal with it.
DR SCHOOMBEE: Yes, your Honour. Can I just very briefly signal two matters just really as a question of reservation. I notice, firstly, that the respondents have filed a notice of contention pursuant to Order 70 Rule 65 which give rise, of course, to substantial matters on their part. They have taken the view that - they have gone to the orders made striking out large chunks of the statement of claim and then have said they can, under the notice of contention, subsume any argument that relates to those paragraphs.
We just want to signal that in our view that may be a very narrow reading of the rule because, of course, they are seeking to raise matters where the Full Court actually made findings on the questions of law stated against them.
HIS HONOUR: Well, the question of the notice of contention would only arise once there was a grant of special leave to appeal or once the appeal itself was being heard.
DR SCHOOMBEE: Yes, yes.
HIS HONOUR: Now, I appreciate the intention of the Court when the matter comes on for hearing in April is to run the applications for the special leave to appeal and the appeals concurrently - a not uncommon procedure in the Court. It also bears upon the notice of cross-appeal because that only becomes relevant if special leave is granted and there is an appeal on foot.
DR SCHOOMBEE: So, I just signalled that because the difference is that for a notice of cross-appeal even if we get special leave, they still need leave.
HIS HONOUR: That is right.
DR SCHOOMBEE: But a notice of contention goes ahead as a matter of right on my reading of the rule once there is ‑ ‑ ‑
HIS HONOUR: Well, it goes ahead as a matter of right if there is a grant of special leave to appeal. That is so.
DR SCHOOMBEE: And we just say it may have been appropriate that matters included in the notice of intention should have gone in the notice of cross-appeal. I just want to signal that at this stage. Not much turns on it.
HIS HONOUR: Well, I had contemplated probably as a matter of formulation that I would order inter alia that the applications be listed for hearing and the notices of cross-appeal and contention be listed for mention when the matter comes on, because it is not for me to foreclose what approach the Full Court will take to the applications for special leave to appeal, and that then can be resolved by the Full Court when the applications come on.
DR SCHOOMBEE: Yes. Having said that, I think it may be appropriate though, subject to of course anything your Honour may wish to observe, that we do actually look at the totality of the questions in a way that the respondents have done. In other words, they have - unless your Honour thinks those have to separated out - their composite document actually refers also to their cross-appeal and special leave questions.
HIS HONOUR: Yes. Well, I do not see any problem with that as a matter of formulating questions, because in the end it will be a matter for the court to decide what it is going to do with the questions; I mean, what it is going to do not only in the sense of answering them but which questions it might decide not to answer for any one reason or another. The respondents list or minute of questions - well, your proposed questions really - I was going to say follow on, but that is not correct, it is your submissions that follow on the respondents minute of questions - but both minutes then begin by looking at the strike out application.
I just wonder whether that is appropriate to begin in that way or whether it is better to ask the questions and then, as it were, ask the court what is to happen to the strike out application in the light of its answers. But it has the advantage also that it puts the procedural side of it to one side until the court has had a chance to come to grips with the substantive questions of law. But that is something you and Mr Mitchell can perhaps think about.
DR SCHOOMBEE: Yes. I would certainly go along with that. It was simply put perhaps because it stood out, as a different aspect it was put first. But certainly your Honour would notice we have tried in our formulations to highlight the substantive issues rather than the pleading issues. So we can deal with the formulation of the question or perhaps we can just leave that aside.
HIS HONOUR: No, it might help to deal with it but then, in the order itself or in the questions as expressed in the order, put that towards the end.
DR SCHOOMBEE: Yes. So, it is 1 and 2 of theirs - and I will mention theirs first now because that is the way we are proceeding - against our first one. We have asked a general question and the reason why we think it is not appropriate to ask 1 and 2 as per the respondents is because we think it really causes the court - it is over-complicated and would really ask the court to revisit the issues. And it is really in a sense - if one looks at the question - that is a special leave point more than an appeal point, is it not? It is part of the issue of - it is still a live issue because we are seeking special leave.
HIS HONOUR: Well, maybe but it is also a substantive question, is it not, because if the court came to the conclusion that there was no arguable cause of action then presumably either special leave would be refused or special leave would be granted and the appeal dismissed. Myself I cannot see any great problem with questions 1 and 2 of the respondent's minute if paragraph (a) were deleted, because it seems to me to introduce a fairly broad question as to what are pure questions of law.
DR SCHOOMBEE: Yes. That was certainly one of the specific drafting objections.
HIS HONOUR: But there may not be any great harm in question 1, and then question 2 simply expressed by reference to paragraph (b) rather than paragraphs (a) and (b). I do not want to get too bogged down in all of this, but if you were content with that approach then we can move on and see what Mr Mitchell has to say about that in due course.
DR SCHOOMBEE: Yes, your Honour, I think we can then move on.
HIS HONOUR: All right, thank you.
DR SCHOOMBEE: Question 3 on the respondent's list is not really a matter of much debate except to point out that they have actually conflated the issue of the legal duty argument in the relevant consideration matter. And that is the respondents point. If I can just very briefly explain, your Honour, there are two really, I suppose, back-up arguments. Firstly, we say they had a duty - and importantly - to make certain investigations in relation to wild life and we say they breached their duty. We say, secondly, that even if it is not a strict duty argument then certainly what is in a management plan is a relevant consideration, which we say would be a lesser test, and we say that these things were not properly considered.
So it does, in a sense conflate two arguments but otherwise I think we have basically agreed and the respondent has actually adjusted some of its formulation in view of suggestions made by us dealing, for instance, with just issuability.
HIS HONOUR: I would have thought, for myself, that perhaps question 3 might be better asked excising the words "relied on in the pleadings as establishing the relevant duties and considerations" and inserting the word "relevant" before legal duties, so that it read - section 33 of the Conservation Act and chapter one of the Forest Management Plan: create relevant legal duties or relevant considerations which are just issuable by a court of law. That would free the question from the pleadings, but then return to the pleadings in question 4 because if that were answered yes then question 4 would pick up the circumstances pleaded by the applicants.
DR SCHOOMBEE: Yes. Perhaps I can just signal one matter that we referred, in our formulation of the question, to the relevant forest management plan. In Sharp case there is an additional forest management that may be relevant. I think that is a small matter that I am sure is just a question of drafting that I cannot see - but subject to anything Mr Mitchell has to say - that that would cause any problems.
HIS HONOUR: Well, if you have no objection, and again of course subject to what Mr Mitchell might wish to say in due course, I would suggest that question 3, be formulated in the way that I have just indicated, deleting the words from "relied on" to "considerations". Inserting "relevant" before "legal".
DR SCHOOMBEE: Yes.
HIS HONOUR: And in the light of that, would you then have any problem with question 4?
DR SCHOOMBEE: No. Except again that the forest management plan must not be only that forest management plan.
HIS HONOUR: Well, that is a matter of detail.
DR SCHOOMBEE: But, that we can adjust.
HIS HONOUR: All right.
DR SCHOOMBEE: No, we would not, if we take this pattern of referring to the pleadings without taking out the substantive, or listing the issues. But, if that is the style to be adopted, if your Honour thinks that is the preferable style, then we are happy to go along with that.
HIS HONOUR: I think it is, because it allows the Court to answer a general question of law and then relate it to the pleadings rather than tying the question of law up completely with the pleadings as perhaps the respondent's minute tends to do. Or, perhaps to be fair to them, it does not quite do that. But, it is less open to the risk that that might happen.
DR SCHOOMBEE: Sorry, your Honour, is referring to the respondent's or the applicant's minute?
HIS HONOUR: No, I was referring to the respondent. And I say that because question 4 then goes on to relate a question of law to the pleadings.
DR SCHOOMBEE: Yes.
HIS HONOUR: So, you have no problem with 4, what about 5?
DR SCHOOMBEE: I understand that 5 is going to be subject to a reformulation. Perhaps we could hear from Mr Mitchell on that point?
HIS HONOUR: Well, are you able to say something to me about that Mr Mitchell?
MR MITCHELL: Yes. Perhaps in fact to aid consideration, we would have no difficulty with the questions as amended in the way suggested by your Honour, 1 to 4. Obviously we would need to insert the Sharp Management Plan in 4. In relation to question 5, further discussions with my learned friends suggest they would be at least more content with a formulation in the first line of paragraph 5 deleting the word "do", inserting the words "will the obligations imposed by" ‑ ‑ ‑
HIS HONOUR: Sorry, this is?
MR MITCHELL: Question 5.
HIS HONOUR: Amended question 5, is it?
MR MITCHELL: Yes.
HIS HONOUR: "Will the obligations" - yes?
MR MITCHELL: "... imposed by" then runs on as it says until one - after the Forest Management Plan 1994-2003, insert "be breached".
HIS HONOUR: Now, wait a moment you have lost me. Where is the reference to the plan?
MR MITCHELL: This is the last line of paragraph 5, bottom of page 1.
HIS HONOUR: Oh, I thought you were working on your amended question 5? I was just handed a document which - a single sheet headed: Amended Question 5, in Jane v Sharp.
DR SCHOOMBEE: No, I apologise, your Honour. That is coming from our side on our questions, that is not Mr Mitchell's, I apologise.
HIS HONOUR: Right. Yes, well, that explains my confusion and also yours.
MR MITCHELL: The document I am looking at ‑ ‑ ‑
HIS HONOUR: So, can we just go back to question 5 again?
MR MITCHELL: Yes. The respondent minutes of questions, after the words "yes," delete the word "do", insert the words "will the obligations imposed by" the paragraph then runs on as it is until the last line on page 2, after "1994-2003" insert "be breached in any of the circumstances pleaded by the applicant" and then delete "arguably require the respondents to gather or assemble the information referred to". And that way question 5 then reflects the formulation of question 4.
HIS HONOUR: Yes. Thank you Mr Mitchell. Are you happy with that Dr Schoombee?
MR McINTYRE: Perhaps I can comment on that, your Honour. That is if you abandon our general approach of not referring to the pleadings. As you can see that then takes you right back to the pleadings, so you would only make sense of that question by going right back to the pleadings, reading them through and understanding them.
HIS HONOUR: Well, you would only make sense of question 4 by going to the pleadings.
MR McINTYRE: Yes, that is right. So, in relation to questions 4 and 5 we are only accepting that amendment if you abandon our approach of in fact going to the substance of the issues of law which ‑ ‑ ‑
HIS HONOUR: Well, I certainly do not want to abandon those, and indeed they must be pre-eminent but, question 3, does ask a general question of law, divorced from the pleadings and the answer to that question it seems to me that perhaps questions 4 and 5 might usefully draw attention to the pleadings.
[10.50am]
MR McINTYRE: Well, you could do that. What we have done with, for instance, our question 2 is to refer to the same issue, but then in subquestions 2.1 through to 2.6 in fact recite the particular obligations which come out of the forest management plan. So, that rather than - all of that is a reflection of the pleadings and you will see some differences between the pleading - the questions 2.1 to 2.6 for instance in the - I am looking at the Bridgetown Greenbushes one, from the subparagraphs in each of the other actions. Because the questions are slightly different depending upon the pleadings.
HIS HONOUR: Well, if you depart from the pleadings and express the matter by reference to the failure to do something or the adoption to do something, which is not a matter pleaded, it seems to me that that is a recipe for some uncertainty.
MR McINTYRE: It is not that they are not matters pleaded, what we have done is to try and formulate in the questions a condensation of what is pleaded into the question rather than just - so that the Court could look at the question knowing that that is what is reflected in the pleading, rather than going back to the much longer pleadings. That is the difference essentially between our approach and the approach of the State.
HIS HONOUR: Yes, all right. Yes, thank you, Mr McIntyre.
DR SCHOOMBEE: Yes, your Honour, the model is what we have followed we have said:
The breach in any of the circumstances pleaded by the appellant.
So, it refers to the pleadings generally, namely, and then we have extracted it, but ‑ ‑ ‑
HIS HONOUR: Yes, but "extracting" is the word that worries me a bit. I mean, has it been paraphrased or repeated verbatim, added to, subtracted from or what?
DR SCHOOMBEE: Yes. Well, we would have said it reflects it. If we look at question 4 as it now stands, it seems on our reading not to accurately reflect certainly our case, because it deals essentially with the breach of duty point, but it does not deal with the relevant considerations point.
HIS HONOUR: It must do, must it not? I say "must do" because question 3 is expressed by reference to legal duties or relevant considerations. Question 4 then says: if the answer to question 3 is yes, can the obligations - and that might be a word of some uncertainty - well, no, I think "obligations", to me, would be a term wide enough to include legal duties or considerations. Now, let us just keep going and see how it is all starting to shape up.
DR SCHOOMBEE: Right. Can we then just add at least the relevant paragraphs in the pleading, because at 4(a) it would have to refer to paragraphs 33, 34 and 35 because those are the relevant pleadings dealing with relevant considerations in our pleading in Jane. And Sharp - if you can just bear with me for a moment - the relevant paragraph is paragraph 27.
HIS HONOUR: Do you mean the relevant additional paragraph is 27?
DR SCHOOMBEE: Yes, 27. And if we go then to subparagraph 4(b) - sorry, we have already added one but the breach or the paragraphs setting out what breach have occurred ‑ ‑ ‑
HIS HONOUR: Where you taking me to now?
DR SCHOOMBEE: I am taking you to paragraph 4(b) and I am just looking at the actual pleading in the Sharp matter.
HIS HONOUR: That is P32, is it?
DR SCHOOMBEE: Yes, it starts there at page 232. The relevant page is page 248 and further. So, we would have to add paragraphs - we have got paragraph 23.
HIS HONOUR: Just one moment, let me keep up with you on this. Yes?
DR SCHOOMBEE: So, if I can invite your attention to page 248 ‑ ‑ ‑
HIS HONOUR: Yes, I have that.
DR SCHOOMBEE: ‑ ‑ ‑ that is paragraph 24 - that really starts, in the Sharp matter, the pleadings of relevant considerations, and that then runs through effectively to paragraph 27.
HIS HONOUR: So what you are really suggesting is, what, instead of paragraph 23 ‑ ‑ ‑
DR SCHOOMBEE: It should be paragraph 23-27.
HIS HONOUR: Yes. I will ask Mr Mitchell to respond. It might be quicker in the long run to deal with this as we go.
DR SCHOOMBEE: As it please the court, yes.
HIS HONOUR: Do you have any problem with that, Mr Mitchell?
MR MITCHELL: I do not. We referred only to the two paragraphs because we had read the pleading as really tying everything back to what was said in those paragraphs that the respondents had failed to do. But we do not have any objection per se as to the other paragraphs being included.
HIS HONOUR: Thank you. Right, well, let us move on, Dr Schoombee.
DR SCHOOMBEE: I will leave Mr McIntyre then perhaps to do a sweeper at the end, if it pleases the court, if there are any objections he wants to raise in relation to the ...(indistinct)...
HIS HONOUR: All right.
DR SCHOOMBEE: Your Honour, we would then come to the Environmental Protection Act which would be question 6.
HIS HONOUR: Yes, what do you say about that, Dr Schoombee?
DR SCHOOMBEE: I think question 6 was a question which we did not have a fundamental problem with. I will just make sure.
HIS HONOUR: It is not the subject of comment in your minute, as far as I can see.
DR SCHOOMBEE: No.
HIS HONOUR: So that seems to be all right, does it not?
DR SCHOOMBEE: Yes.
HIS HONOUR: Well, within that heading: Environmental Protection Act, perhaps you could just tell me initially if there are any questions or how many of the questions you are content with in the form in which they are expressed.
DR SCHOOMBEE: Yes, I will just run through those. As far as question 7 is concerned we feel that that is an overly narrow formulation, because we think that it is not simply the question of the construction of one ministerial condition, namely condition 1, that caused the court - or is relevant to a decision on whether you need a decision of the committee before any court can intervene.
HIS HONOUR: Well, if 7 went - and again subject to anything Mr Mitchell may say - I would have though that on the face of it question 8 would pick that up.
DR SCHOOMBEE: Yes, yes.
HIS HONOUR: Do you accept that, Mr Mitchell?
MR MITCHELL: I accept it can be read in that way. We have seen it as two choices but 7 could be subsumed within 8 if my learned friends accept that the question as formulated covers the point that we had raised there.
HIS HONOUR: It seems to me that it would let in question 7 in answering question 8. And it does also seem to me that question 7 is very narrowly expressed and perhaps not entirely happily expressed. So let us assume for the moment that 7 is out. Then 8 would read: if the answer - singular - to question 6 is no, and so on. What do you say about question 8 as formulated on the footing that it relates only to an answer to question 6.
DR SCHOOMBEE: I would accept that. The environment conditions pleading in Jane starts at paragraph 36, your Honour, if I might invite your attention to that at page 354 of the record.
HIS HONOUR: So what are you say, Dr Schoombee? You are suggesting that question 8(a) should let in some of the other paragraphs?
DR SCHOOMBEE: Yes, that is right.
HIS HONOUR: Can you specify them?
DR SCHOOMBEE: Well, it would certainly be 36(a). 36(b) and (c) would fall away because we are not - and (d) would fall away - because we are not proceeding with that.
HIS HONOUR: Well, is paragraph (b) and 36 paragraph (a) enough for your purposes?
DR SCHOOMBEE: Just having a look whether we should refer to 37 as well. No, we would have to go to paragraph 38 because that is actually the environment management commitments.
HIS HONOUR: All right. So that makes it 33(b), 36(a) and 38.
DR SCHOOMBEE: Yes, that is right.
HIS HONOUR: Any problem with that, Mr Mitchell?
MR MITCHELL: The problem is one of my own making, I am sorry, your Honour. I think in question 8 the references to paragraph 33 in the Jane action ought to be to 38.
HIS HONOUR: Right. Well, then you are on common ground. I might just say, Dr Schoombee, what I have in mind, when we finish this exercise, is to give you and Mr Mitchell and Mr McIntyre an opportunity to co-relate what you have done so that there is nothing that has just slid by, as it were, by being overlooked. Depending on how we are going for time you can possibly do this - I could adjourn for a short time and you can sort that out between you.
DR SCHOOMBEE: I just thought I would inform your Honour of those paragraphs but I appreciate that and I would think it is common ground.
HIS HONOUR: Well, I think you should mention them. I think you should mention them because there may be some objection, but if it is only a matter of something being overlooked, well, then I would rather it be clarified now.
DR SCHOOMBEE: Yes. Yes, thank you.
HIS HONOUR: All right. Now, what about paragraph (b) of question 8?
DR SCHOOMBEE: Sharp, which would be at paragraph - starts at paragraph 28, and again that would be 28(a).
HIS HONOUR: Is 30(b) the intended paragraph, Mr Mitchell, in that 8(b)?
MR MITCHELL: Yes, it is this time, your Honour.
HIS HONOUR: So it is 28(a) and 30(b), Dr Schoombee.
DR SCHOOMBEE: I am sure that is correct, yes.
HIS HONOUR: Well, unless you pick up anything in discussion with Mr Mitchell. All right.
DR SCHOOMBEE: I do not know why my learned friend goes to paragraph 30(b), not 30. That is an integral part of the pleading of commitments. Let us make it paragraph 30, I think it is more appropriate.
HIS HONOUR: All right. Well, I will work on that footing and give Mr Mitchell an opportunity to comment.
DR SCHOOMBEE: And then we just get to the question of breach and, to go back to Jane, those paragraphs have to be adjusted. The breach of the environmental conditions are pleaded ‑ ‑ ‑
MR MITCHELL: While my learned friend is looking for a paragraph I might just indicate, at paragraph (c) the error of referring to paragraph 33 rather than 38 is repeated.
DR SCHOOMBEE: I see, thank you.
HIS HONOUR: You mean (c) should ‑ ‑ ‑
MR MITCHELL: (c) should read 38.
HIS HONOUR: ‑ ‑ ‑ paragraph 38.
MR MITCHELL: (c).
HIS HONOUR: Thank you.
DR SCHOOMBEE: The precautionary principle falls away. I think it is 38 - 37 ‑ yes, let us see whether there is anything in 37. No.
HIS HONOUR: Well, let us just leave it at that for the moment. And what about (e).
DR SCHOOMBEE: There is just the observation there. It seems to me the relevant paragraph as 30 in Jane would be 38 - I think my learned friend indicated - just 38 is it, generally? Yes, I am happy with that. Right, so if we go to Sharp we will just see whether there is any - I think there may be an adjustment needed there again, because I think there is the same problem, that there is a reference to the earlier breach paragraph and not to the specific breach of environmental conditions pleading. So the relevant paragraph, the equivalent paragraph there, would be paragraph 30.
HIS HONOUR: You mean in addition to 23 or in substitution for?
DR SCHOOMBEE: I think it is really in substitution.
HIS HONOUR: Where do I find paragraph 30?
DR SCHOOMBEE: Your Honour finds that in the record starting at page 253 and the relevant paragraph, which is tucked away, is at page 256, top of the page. Your Honour will notice that my learned friend has taken the ‑ ‑ ‑
[11.08am]
HIS HONOUR: Well now, just for the transcript, which number are you referring to?
DR SCHOOMBEE: I am referring to 30, sub (c). Subparagraph (c), which is at the top of page 256. And that picks up, referentially, paragraph 23 but the material pleading is in paragraph 30(c).
HIS HONOUR: All right. Well, what about question 9? I mean, that obviously needs reshaping in the light of 7 going.
DR SCHOOMBEE: Yes. We thought that it actually went beyond anything raised in either the cross appeal or the notice of contention. Those are the matters of substance. As far as the formulation is concerned, we would refer to our formulation which more broadly refers to the breach of the ministerial ‑ ‑ ‑
HIS HONOUR: Where do I find that and which page of your minute?
DR SCHOOMBEE: Page 3.
HIS HONOUR: But page 3 is looking at breach of conservation duty, is it not?
DR SCHOOMBEE: No, that is paragraph 4 on page 3.
HIS HONOUR: Well, I am still not clear what your submission is in relation to paragraph 9. I take you to be saying that it is really unnecessary or not warranted by the form of the pleadings?
DR SCHOOMBEE: Yes. That is the one point. But on the drafting issue it concludes ‑ ‑ ‑
HIS HONOUR: Well, before we get to drafting, are you pressing that question, Mr Mitchell?
MR MITCHELL: Yes, we are. We say it arises from the basis of the decision of his Honour Murray J, so that a notice of contention or cross appeal is not required, because this does form part of the basis upon which the Full Court did in fact determine the matter. If I could take your Honour to the passage of the judgment if I need to.
HIS HONOUR: Well, no, before you do that, but if question 7 goes, then 9 on your approach would read: If the answer to question 6 is no and the answer to question 8 is yes, is that how it would work?
MR MITCHELL: Yes.
HIS HONOUR: Yes, I see that. Thank you. Yes, Dr Schoombee.
DR SCHOOMBEE: Well, certainly we do not think that the other judges concurred in that aspect of judgment, so I cannot see how it can be the basis of the judgment of the Full Court. But perhaps that is something we can leave for an argument at a later stage. As far as the formulation is concerned, we do have serious concerns about the very limited way the end of that question is phrased; that is question 9, because in our equivalent question 4 we really say what would be reflected, or what the case is about, namely a determination, if I can just take you to question 4.
Whether the actions constitute or will constitute, so it is not just a past tense, it is not that there is a completed breach, constitute or will constitute a breach of the ministerial conditions and the elements of the resulting offence. We are not asking a civil court to say that a fully fledged criminal act has taken place, certainly not on injunctive relief, for instance, and so we say that that formulation is actually the matter that should go in.
HIS HONOUR: Well, except that question 4 in your minute is really asking in a very abstract form: can a civil court determine?
DR SCHOOMBEE: Yes.
HIS HONOUR: The question is really: what relief is available to the applicants in the proceedings that they brought in the Supreme Court of Western Australia, is it not?
DR SCHOOMBEE: Well, that is so, but I am not saying that if we go away with the style of 9, then I think there is still a problem as to the narrow formulation at the end.
HIS HONOUR: I am not sure what you mean by at the end.
DR SCHOOMBEE: Sorry. The question 9 now reads: If the answers to question 6, forget 7 ‑ ‑ ‑
HIS HONOUR: Well, it is only singular. If the answer to question 6 is no and the answer to question 8 is yes.
DR SCHOOMBEE: Yes. Do the facts - and then they refer to specific facts there - arguably disclose grounds for the exercise of the Court's discretion to grant injunctive or declarative relief? And we say that relief is not only in respect of an alleged criminal breach of section 47(1) but really to determine whether, on our formulation, the actions of the respondents constitute or will constitute a breach of the conditions and the elements of a resulting offence. So we say that our pleadings are not limited to an alleged criminal breach of section 47(1).
HIS HONOUR: Well, if the word criminal went, would you be content?
DR SCHOOMBEE: But still, again if you are talking about an alleged breach, you are referring to something that has already occurred. We are not talking about the future.
HIS HONOUR: Well, yes, I do not see the need for alleged. I mean, clearly something is being alleged and something is being denied, but the question is more properly asked in respect of a breach of section 47, subsection (1). Would you be happy with that?
DR SCHOOMBEE: Yes.
HIS HONOUR: I know you would be, Dr Schoombee. Would you, Mr Mitchell?
MR MITCHELL: Yes. That seems to encapsulate.
HIS HONOUR: Right. Let us keep going. What about question 10?
DR SCHOOMBEE: Well, that would be, I think, on a similar basis.
HIS HONOUR: That would be reformulated accordingly, would it not, so it would be: if the answer to question 6 is no to the facts pleaded etcetera, deleting an alleged criminal.
DR SCHOOMBEE: Yes.
HIS HONOUR: When substituting (a). All right?
DR SCHOOMBEE: Perhaps if I can just pause for a moment to reflect on the deletion of question 7 and then our question 4 because that is really a central matter that the Court, the Full Court, decided that they could not, in effect, hear the matter until there had been administrative determination. I just want to reflect for a moment whether, with 7 gone in that form, not only in the formulation, but the whole area of 7, whether we do not really need a question to ventilate the issue of this ouster clause reading of the matters. I suppose one could say, and just thinking aloud, that paragraph 9 and 10 would pick up that issue now.
HIS HONOUR: I would have thought so, but I mean, that is a view expressed in running, as it were.
DR SCHOOMBEE: Yes, it is. It is my view as well, in running, because the issue would be ventilated. It would really fall then under that if that stands.
HIS HONOUR: Well, let us just assume that it does for the moment. I mean, what I have in mind is that when we get through this I will give you and Mr Mitchell an opportunity to hopefully present the Court with agreed questions, and if that does not prove possible - it looks as if it ought to be possible the way we are going - then to the extent there is any dispute, well, I will have to deal with that. So that takes us on to item (d) in the respondent's minute, the Wildlife Conservation Act.
DR SCHOOMBEE: Yes. That was where we have put up, your Honour, our rival version is the document that has been handed up to you. And the reason why we have segmented it into three rather than two aspects is to show to the Court the three areas. Firstly the first respondent as a static corporation soul, then people that can be described as his servant and agents and then the commercial logging contractors. I have also included, your Honour, in the reference figures I noticed the ‑ ‑ ‑
HIS HONOUR: But they are not parties to the action, are they?
DR SCHOOMBEE: No, they are not.
HIS HONOUR: I mean, they can only - if any of the respondents are vicariously responsible for their activities, then it is unnecessary to ask a question expressly in regard to them, and if the respondents are not vicariously responsible then they are not parties to the action anyhow.
DR SCHOOMBEE: Your Honour, we would like to leave that question open, whether it is really a non-joinder point. It has never been argued as a non-joinder point. We would say that where somebody implies commercial contractors, we could seek a declaration against that party employing them and having the responsibility as to whether those parties are bound or not bound.
HIS HONOUR: Well, was that a point decided by the Full Court?
DR SCHOOMBEE: We say in effect it was decided. The Full Court said, I think, in short perhaps the line that your Honour has taken. It said: well, these are the parties before Court. It did not really deal with that argument in any detail, although I have said in my submissions, including showing what was argued in reply, that we did deal with that aspect. The question 11(b) of the present questions of the respondents pick up that issue.
HIS HONOUR: Well, that is to your advantage, is it not?
DR SCHOOMBEE: Yes. Yes.
HIS HONOUR: I mean, advantage in the sense that it lets that question in.
DR SCHOOMBEE: Well, they have covered themselves in that respect by question 11(a) where they say that it is open to the Court to say that it does not arise.
HIS HONOUR: But you want it to arise even if those relevant provisions of the Wildlife Conservation Act do not bind the respondents, do you?
DR SCHOOMBEE: Yes.
HIS HONOUR: Well, is that an issue before the Court?
DR SCHOOMBEE: It was, certainly.
HIS HONOUR: But how could it be? If the respondents are not bound by the activities of the logging contractors, then any liability of the logging contractors would, within the framework of these proceedings, require that they be parties, would it not?
DR SCHOOMBEE: I must say, it was certainly not - the issue of non-joinder was not raised and it was argued on the basis of whether the, as it were, to call it the Bradkin point whether that could - because they had to rely on Bradkin really to get to the shield of the Crown, whether we could attack the Bradkin doctrine so that they are not entitled to the shield of the Crown. I realise there may be an issue about non-joinder, that you cannot do that if you want to.
HIS HONOUR: Well, I do not know, I would have thought it would suit your purposes to go along with question 11B in the respondents' formulation.
DR SCHOOMBEE: Yes. I accept that the only other issue that I want to raise is perhaps whether it is necessary but I take it we can refer the court to the parts of the pleading we would be relying on to say where the necessary facts are pleaded dealing with the logging activities. That is simply where I have referred to the - in the two pleadings where this has been explicated in J.N. Sharp, namely ‑ ‑ ‑
HIS HONOUR: Yes, well, I cannot imagine that the Full Court would be happy to be drawn into the factual circumstances surrounding the liability of loggers who are not in fact defendants to the original proceedings, so I think we might proceed on the footing that 11B gives you as much as you can require. I think the word "are" in line 2 is superfluous, is it not?
DR SCHOOMBEE: Yes. I think that is just a typo I think also, with respect, your Honour, 11B should be 11A.
HIS HONOUR: All right. What about 12?
DR SCHOOMBEE: Yes, I think if I just have a quick look at our submissions on that. The only issue there that arises is: does that provide for the enforcement. I understand they were relying on section 9(2) of the Act but that was the only formulation, otherwise we do not have a problem with that. The way the Full Court approached it through the judgment of his Honour Templeman J was they read our pleadings as not making an allegation of an absence of ministerial consent.
On that basis they said - and I am telling your Honour just to fill you in on the background - they said: well, you have not pleaded the cause of action. But then it went on to say: well, this is not really a matter that can be cured by leave to amend because we, in any event, think that there is a - you have not pleaded the facts that would give rise to relief. So, in a sense, question 13 would take the court to the pleading point.
We would think that it is most appropriate, given the approach shown by this court on special leave, to focus on the substantive issues, that 14 should not simply be made dependent on 13, because I would have thought it was really axiomatic that any court would say: that was the only problem, you have not pleaded an absence of ministerial consent, you should get leave to do that.
And then let us look at the other argument saying that: well, not in any of the circumstances pleaded can you get injunctive relief, and of course the court focused on injunctive relief, so 14 is a question in itself, we would say, and 13 is really a pleading point. I mean, we would concede that if you really read the pleading as not saying - or not averring a lack of ministerial consent - well, it is not pleaded explicitly impliedly, then of course it is something that should be cured, but really the substantive issue should be made dependent on that.
HIS HONOUR: Well, what is the substantive issue?
DR SCHOOMBEE: The substantive issue is whether we can get relief on the facts that we have pleaded, if one has to assume under that if we had pleaded absence of ministerial consent. So the substantive issue is really encapsulated in question 14.
HIS HONOUR: In other words - are you saying this, I am not sure it is what you are saying, but question 13 went and question 14 was simply expressed in terms that the facts pleaded A and B, arguably disclose grounds for the exercise of the court's discretion, and so on. That would be what you want.
DR SCHOOMBEE: That would essentially be the ‑ ‑ ‑
HIS HONOUR: Yes. Any problem with that?
MR MITCHELL: We do have some problem. Firstly, we would note that question 14 is not dependent on the question - on the answer to question 13, rather to the answer to question 12. Question 13 reflects the basis upon which the Full Court in fact struck out the pleadings and unless the applicant concedes that the pleadings were properly struck out, and it is really just a leave to amend the point, we would say that that question needs to be answered to see whether the pleadings as they currently exist, stand to fall.
Question 14 is not directed towards whether there is a breach pleaded, but whether if one accepts that there is a breach pleaded, facts which arguably give rise to the court's discretion to grant injunctive declaratory relief to enforce the criminal law, are pleaded. So we say that they are separate issues and question 13 should be asked, although that will still take you into question 14.
HIS HONOUR: Yes, I think I understand that. Thank you, Mr Mitchell. Well, Dr Schoombee, are you happy with 13 and 14?
[11.28am]
DR SCHOOMBEE: Well, as I said 13 then really raises a pleading point, but we can probably deal with that if necessary by a suitable concession saying that either the pleading must read that way, or should be amended to read that way - and I mean, even on 14 there may be an amendment issue, we have signalled that. But, that can be dealt with on a general leave to amend. Perhaps then just as a matter of formulation, I think we should call question ‑ ‑ ‑
HIS HONOUR: Well, I will give counsel the opportunity to come together and reformulate, if it is only a matter of how it is expressed.
DR SCHOOMBEE: Yes, because 13 really, in a sense, begs the question. It says "does the failure to plead the absence of Ministerial consent". I mean we can certainly argue, we would say that it is implied the way we have pleaded that the Minister has not given consent, then it must refer to the finding of the Court.
HIS HONOUR: Well, I mean you could meet that ‑ ‑ ‑
DR SCHOOMBEE: We will meet that.
HIS HONOUR: You can meet that by just substituting the indefinite article, for the definite article. Just "does a failure of the applicant to plead".
DR SCHOOMBEE: Yes.
HIS HONOUR: And then that leaves open the question of whether there was a failure or not.
DR SCHOOMBEE: Yes. Well, that would solve the issue and then we would, I think, pull in line at the end of question 14, simply in respect of a breach.
HIS HONOUR: Yes. Well, you would have to bring the concluding words of 14 into conformity with those other references to breach of the section.
DR SCHOOMBEE: Yes, that is right.
HIS HONOUR: All right. Now, what about the natural justice point?
DR SCHOOMBEE: Can I leave that for a moment and let my learned friend Mr ‑ ‑ ‑
HIS HONOUR: Yes, all right.
DR SCHOOMBEE: ‑ ‑ ‑ because that is a matter that arises only in Kerr v Hester.
HIS HONOUR: Well, F is not, that is the Export Control Act, that is not being pursued.
DR SCHOOMBEE: Yes, that is out. 19 is not in dispute.
HIS HONOUR: Right. What about ‑ ‑ ‑
DR SCHOOMBEE: Nor is 20, the question of standing which is the Prosser leave point. Nor is that in dispute on formulae.
HIS HONOUR: All right. Well, that is about it.
DR SCHOOMBEE: That is about it. So, that really leaves the natural justice point, for my learned friend.
HIS HONOUR: Yes. Thank you Dr Schoombee, I will come back to you in a while, but Mr McIntyre what do you want to say about ‑ ‑ ‑
MR McINTYRE: About what, sir, anything?
HIS HONOUR: E natural justice.
MR McINTYRE: Oh, yes. Firstly, what the respondents have done in 14A and their 15 is to raise a pleading point. Parker J said that we had not pleaded - that the applicants were entitled to legitimate expectations. We had only pleaded that the local community was entitled to legitimate expectation. And our view is that that is just a misreading of our pleadings which are at page 82 of the record which reads ‑ ‑ ‑
HIS HONOUR: Well, it may be a misreading, or may not, but for the purposes of identifying the questions for the Full Court, what are you saying about 14A. That it ought not to be there, or?
MR McINTYRE: Well, I mean, the question is this, is the Court going to deal with issues concerning pleadings.
HIS HONOUR: Yes.
MR McINTYRE: If it is then it is a matter which my learned friends raise which we can deal with. And I suppose given what has transpired through myself and Dr Schoombee, the Court will consider particular issues of pleadings. Then 14A and 15 deal with those issues as raised by my learned friends.
HIS HONOUR: Is the issue of legitimate expectation the same as the obligation to accord procedural fairness that is referred to in paragraph 16?
MR McINTYRE: Yes. Well, I imagine it is. That is their formulation. We have not used that phrase.
HIS HONOUR: Well, the point of asking you that is, that if that is the case, then maybe 14A and 15 do not add anything to 16.
MR McINTYRE: Yes. We would agree with that. Yes.
HIS HONOUR: Do you accept that Mr Mitchell?
MR MITCHELL: Yes, I do, now. Yes.
HIS HONOUR: So, we could let 14A and 15 go?
MR MITCHELL: Yes.
HIS HONOUR: Thank you.
MR McINTYRE: Yes. If you would turn to our 6 which is on our particular ‑ ‑ ‑
HIS HONOUR: Well, just before we do that.
MR McINTYRE: Yes.
HIS HONOUR: On the footing that item E natural justice now contains only paragraph 16 are you suggesting that there should be some other question asked or that 16 should be reformulated?
MR McINTYRE: Well, it becomes - the second. Not some other question. The only issue then becomes one which has been mentioned a number of times and I suspect your Honour has a view on it now, that there is the issue between whether you raise the question by reference to paragraphs of the pleadings, or whether you seek to ‑ ‑ ‑
HIS HONOUR: Yes. Or whether you actually set them out, as it were.
MR McINTYRE: That is right. And that is the difference between that question 16 and what we have formulated in our question 6.
HIS HONOUR: Well, it seems to me that the one thing that perhaps is dangerous is to seek to paraphrase the pleading. In other words it ought to be referred to either in the way that the respondents have done by identifying particular paragraphs or it the contents of those paragraphs could be set out verbatim. But, that is going to inflate the questions and they are looking horrendous enough as it is without adding to them.
MR McINTYRE: We have got them in the appeal book, in the application books. If that - following your Honour's view, question 16 would cover the field for us. And that would then answer the view that I was going to put in relation to question 5 about going back to the Conservation and Land Management Act. What that does on the formulation by the State is just to refer generally to the pleadings. There are numerous pleadings which inter-relate with one another. If that is the view then that form of question would raise the issue and then we can provide those sorts of interpretations in our argument which might assist the Court.
HIS HONOUR: I am concerned that the Court may, almost certainly will be taken into the pleadings.
MR McINTYRE: Yes.
HIS HONOUR: But, I am not sure that that can really be avoided. Or it could only be avoided at the expense of asking questions which are almost hypothetical or abstract questions.
MR McINTYRE: Yes. Yes. We understand that your Honour.
HIS HONOUR: And at least there is this much to be said for it, that the respondents for the purposes of this exercise take the pleadings as they find them. I mean there is no factual debate, no argument about - by way of denial of pleadings, or anything like that. That is the pleadings as they stand upon which the plaintiffs must take their stand.
MR McINTYRE: Yes.
HIS HONOUR: All right. Thank you.
MR McINTYRE: Yes, that is all. Thank you.
HIS HONOUR: Well, that would seem to be that. But, what I think in fairness to counsel and also in fairness to the Court, we should have an opportunity, as it were, get together and perhaps reduce these questions to an agreed form. It seems to me that that clearly can be done in the light of the discussion that we have had. Now, if there is agreement, it would probably be unnecessary to ask counsel to return, you could let me have a minute. On the other hand I am a bit concerned there may be some matters that I should direct attention to myself. Just as a matter of timing, what is it now, it is half past eleven, do you think this could be done by say 2.15? I think it is in everyones' interest that this be disposed of today.
DR SCHOOMBEE: I would certainly think so, we can use their minute and just - I think we just have to check some of the paragraph references - but, we have done a lot of them.
HIS HONOUR: All right. Well, let me put this to you. Let us just go on for a moment and look at some other questions. At least not questions for the Court but other issues that arise. The time available is basically two days. I say basically, because if it is not before 2.15 it maybe that the preceding matters will spill over into the afternoon. But, essentially there are a couple of days. It seemed to me, and I just offer this to counsel and invite your comments, that if - and perhaps let me interrupt myself.
It depends in part upon how the applicants are going to handle the matter. You may just want to have a time between you and let you divide it up yourselves. Or you maybe content to have a certain time allocated to counsel in P31 and P32 and a different time in P33. That is of no moment to the Court. How do you want to approach that?
DR SCHOOMBEE: Yes. I think it would be preferable if a block of time was given to the applicants ‑ ‑ ‑
HIS HONOUR: Well, I had in mind that if it was going to be divided something like 4 hours for you Dr Schoombee and an hour for Mr McIntyre. But, let us talk about 5 hours. And for your Mr Mitchell 4. That is not seeking to - or anticipating that your argument would be unduly less than the applicants. It is just that probably quite a bit of the ground has been covered by the time you get to your feet.
MR MITCHELL: We would be content with 4 hours.
HIS HONOUR: And then give the applicants again on block, as it were, say half an hour for reply. So, that should work out. It seems to me that there is probably no need for any further written material. The Court is already under the weight of quite an amount of material. Your submissions on the questions for appeal and special leave to appeal just lose a lot of their relevance if the questions are formulated in the way that I have suggested.
DR SCHOOMBEE: Yes.
HIS HONOUR: It may be then - I do not know whether you regard that as your precis of argument, as it were?
DR SCHOOMBEE: I think we would want to adjust it. I would hope not to make it much longer but to adjust it.
HIS HONOUR: No, I would not want you to make it longer. But, the respondent's minute presumably subject ‑ ‑ ‑
DR SCHOOMBEE: Would need some issues. Yes.
HIS HONOUR: Well, the respondent's - what is it described as, the written submissions, and subject to whatever Mr Mitchell may say, may be able to just remain in their present form. But, you may need to adjust your submissions on questions for appeal. Because basically that is your written argument, is it?
DR SCHOOMBEE: Yes. We would perhaps - your Honour will bear in mind that was drafted for a special leave application and also bear in mind that this Court takes a very definite view on the citation of authorities on special leave and in how many authorities you can meaningfully refer to. So, we may refer to additional authorities. But, I would not think that the argument would be much expanded. The additional points raised by the other side, of course, on their notice of contention and notice of cross appeal, in that respect submissions would have to be filed. Because that has not been addressed in any submissions in this Court.
HIS HONOUR: Let me ask Mr Mitchell this. Mr Mitchell are you likely to want to revise your submissions?
MR MITCHELL: I think we are. As we had understood the task undertaken by our written submissions in relation to the questions, it was really submissions to identify the questions that look now as if they will be settled. Certainly if arguing the appeal if special leave were granted, we would want some opportunity to at least file an outline, which I think would be substantially different from the questions.
HIS HONOUR: Well, you will not necessarily know see about the - because the Court will run the two together.
MR MITCHELL: Yes. I had assumed ‑ ‑ ‑
HIS HONOUR: And it may not be known till the end of the day whether special leave is to be granted or refused.
MR MITCHELL: I had assumed that we would be preparing it in arguing it as an appeal and therefore have a set of written submissions.
HIS HONOUR: Oh, yes, that must be clear.
MR MITCHELL: As, on an appeal, we have contemplated being able to file an outline or written submissions prior to the hearing.
HIS HONOUR: Well, then perhaps we should just take these documents for what they are. They will remain in the file. But, the parties should have an opportunity to file written submissions. Now, they should not be overly long. Under the rules if you were preparing for an appeal, what would you have? I think it was about 10 pages, but cannot pick that up immediately. If someone can help me with the relevant rule. Or it may actually be the subject of a practice note. Which is why I cannot pick it up.
MR MITCHELL: I think it may be subject of practice direction number 2 of 1996.
HIS HONOUR: What does that say Mr Mitchell?
MR MITCHELL: "A list of authorities must be lodged" - sorry, that is dealing with authorities. (1) says:
...no more than 20 pages in length without leave of the Court or a Justice.
HIS HONOUR: All right. Well, then that is the governing provision.
DR SCHOOMBEE: On this one we would contemplate something longer in this case (a) because there are three matters involved, at least two differentiated matters and probably by reason of the complexity.
HIS HONOUR: Well, I think you should abide by the practice direction and if you find yourself in difficulty then you should seek, I think, from Registry a relaxation, if necessary.
DR SCHOOMBEE: All right. We will do it that way.
HIS HONOUR: Yes. All right. I take it the cost of the directions hearing are to be reserved are they, of today's hearing?
DR SCHOOMBEE: Yes.
HIS HONOUR: And I give the parties liberty to apply in case anything does arise. The way in which I visualise the order being expressed is along these lines. That there be a paragraph (1) to read the application - well now - sorry. Probably there should be one order for paragraph - for P31 and 32 or possibly three separate orders. At least in terms of a minute of order, I think perhaps if you proceed on the footing that there will be one minute to cover the three matters and I would visualise something on these lines:
Paragraph 1 to read: the applications for special leave to appeal be listed for hearing and the notices of cross-appeal and of contention be listed for mention not before 2.15 pm on Wednesday, 1 April 1998 before the Full Court sitting in Hobart;
Paragraph 2, on the return of the applications there be reserved for the consideration of the Full Court the questions annexed hereto, and then those questions as they are finally resolved can be annexed;
Paragraph 3, 2 days be set aside for the hearing of these applications to be divided as follows: counsel for the applicants, 5 hours; counsel for the respondents, 4 hours; counsel for the applicants in reply, 1 half hour.
I do not think I need say anything about the written argument because the practice note fixed that up. Next paragraph, costs of the direction hearing be reserved, and a further paragraph, liberty to apply. Now, if counsel are able to reduce that minute to some acceptable form, we can meet again at 2.15 and I can make an order in those terms.
MR MITCHELL: Your Honour, I wonder if I might just clarify, make sure I have understood correctly. When it is said that the applications or the notices of cross-appeal and contention be adjourned for mention, is it contemplated that, depending on the contingencies, the respondents prepare written submissions and be prepared to give argument in relation to those issues?
HIS HONOUR: Yes. I would contemplate it that way. I have only separated the two, Mr Mitchell, because, as you appreciate, the cross-appeal and contention only become relevant if leave is granted and it is not for me to say whether leave will be granted or refused.
MR MITCHELL: Thank you, your Honour.
HIS HONOUR: But I do think you should proceed on the footing that those matters will be argued. So, so far as that matter is concerned, we will adjourn until 2.15, but I am not adjourning immediately. We have this question of the injunction.
DR SCHOOMBEE: And a stay which relates to really the cost order.
HIS HONOUR: And a stay. Yes, well now, just a moment, let me pick this up.
DR SCHOOMBEE: There is also one additional affidavit by my ‑ ‑ ‑
HIS HONOUR: Well, just a moment, Dr Schoombee, before we get into the details of this. The injunction sought is a somewhat unusual one, it is simply an injunction to restrain activities except upon the expiration of 14 days prior notice. Do you have a problem with that, Mr Mitchell?
MR MITCHELL: Yes, my instructions are that the respondents are not prepared to give an undertaking in those terms and would oppose the grant of an injunction in those terms.
HIS HONOUR: What is the difficulty with that, with an injunction in those terms?
MR MITCHELL: We say that, from the respondent's point of view, the difficulty is it is an open ended, in terms of time, undertaking; it can become an issue of planning difficulty if at some point down the track it is sought to harvest these areas.
HIS HONOUR: All right. Well, let us tackle it another way. Since a date has been fixed, there is some reference in the papers to there being no proposal to log at least until March. Is the question of logging likely to become a live issue before this matter reaches the Court on 1 April?
MR MITCHELL: All I can say is that there are not any fixed intentions to log at all, on my instructions, certainly not until March. We say, at this stage, the question of an injunction simply does not arise. The position in March can perhaps be addressed by an inquiry closer to March and if it then emerges that there is some difficulty, application can be made.
HIS HONOUR: Well, are the respondents prepared to give an undertaking simply to give the applicants notice of any intention to log if that is to take place before the return date on 1 April?
MR MITCHELL: My instructions are that they are not. I have not addressed the - that we have addressed the question in terms of our intentions for March, or up to 1 April, but my instructions are that all the respondents are willing and feel that they are obliged to do in all of the circumstances is to state their intention which is reflected in the letter that is annexed to my learned friend's affidavit.
HIS HONOUR: And that intention is?
MR MITCHELL: That the respondents do not currently intend to harvest any of the areas until at least March of next year, which is not to say that there are firm plans after that, simply that, at least to that point, logging is not going to occur.
HIS HONOUR: Well, I can understand, I think, the reference to planning difficulties if logging was to take place in a variety of areas, perhaps over a variety of times, but I cannot quite see why there would be any difficulty in giving the applicants notice of any intention to carry out any logging activities on any of the land in question. I mean, that would then trigger off the situation in which, depending on the time when such notice was given, that the applicants could then seek - would then, if so advised, seek an injunction.
MR MITCHELL: Yes. I can only pass on my instructions. I am not sure that I fully understand the planning issues.
HIS HONOUR: Well, if we are going to adjourn until 2.15, perhaps you could get instructions on that. An injunction, in the circumstances, if it were not coupled with the giving of notice, I could see might create administrative problems for the respondents, but all that is being sought is an injunction until the expiration of the notice and it is hard to see how that could cause any real difficulties for the respondents. But I am not asking you to do more than perhaps take that up, because it seems to me that there ought at least be a situation in which the applicants become aware of any intention to carry out logging if such an intention is manifest before the matter comes on for hearing on 1 April. Hopefully, you might be able to resolve that.
MR MITCHELL: Yes. Perhaps just to outline the respondents position, as I am instructed, we say that one would not come to the balance of convenience on this application, at least as it currently is framed, we would say it was simply, at a stage where there is no intention to log, premature and in the circumstances where there is no evidence which would support any question to be tried. As a matter of this Court's discretion ‑ ‑ ‑
HIS HONOUR: Well, I can see the force of that if the respondents said: but I am prepared to tell you if I do intend to log. That would be almost an answerable proposition. But to say: well, we do not intend to, but we are not going to tell you if we do intend to ‑ ‑ ‑
MR MITCHELL: I will take that matter up.
HIS HONOUR: Perhaps if you would, Mr Mitchell.
MR MITCHELL: Yes.
HIS HONOUR: What about the costs order? A stay is sort of that, do you have a problem with that?
MR MITCHELL: Again, my instructions are that we do. We would say that this is not - all that is occasioned by the pursuing by the respondents of the costs orders is some financial inconvenience to the applicant were it the case that that costs order was overturned on appeal. We say that that is not sufficient to really enliven the exercise of discretion by this Court, or jurisdiction by this Court, to grant a stay which is traditionally to preserve the subject matter of the litigation which is not the costs order. I have some authorities which I would refer to in relation to that question, but my instructions certainly are that, having obtained those costs orders, the respondents ‑ ‑ ‑
HIS HONOUR: Have the costs been taxed?
MR MITCHELL: In the Full Court of Appeals costs have been taxed and I think - I have not checked the figures, but Mr Bennett's latest affidavit sets out the figures there ‑ ‑ ‑
HIS HONOUR: Which affidavit is that?
DR SCHOOMBEE: May I refer your Honour to that, please? That was the affidavit that I said that we would be tendering. It is the affidavit sworn today's date. I have handed the ‑ ‑ ‑
HIS HONOUR: It is one that I have not seen then, is it?
DR SCHOOMBEE: You have not seen it. It sets out very briefly - well, it sets out what the taxation position is and summarises what has not been taxed ‑ ‑ ‑
HIS HONOUR: All right. Let me just have a look at that, thank you. Well, I think I had better hear argument on the question of stay of the costs order. I had better hear from you first, Dr Schoombee.
DR SCHOOMBEE: Your Honour, we - I refer you to the affidavit and, particularly, the last affidavit of Mr Bennett which sets out the factual basis before I come to the law. The bill of costs in the appeals have now been taxed, but there was a possibility, of course, that, given the legal point that our clients have raised set out in paragraph 2 of Mr Bennett's affidavit of today's date, that there may be further procedures in that matter. that is paragraph 3. So that would then set in train a review, that is an appeal process of the Registrar or the taxation of those cases - of those bills of costs.
HIS HONOUR: But the costs presently owing are those set out in paragraph 4 subparagraphs (a), (b) ‑ ‑ ‑
DR SCHOOMBEE: To (c).
HIS HONOUR: And (c).
DR SCHOOMBEE: Yes. A major part of the costs have not been taxed and, of course, that process will go ahead. So we say that it is an utter waste of time, given the circumstances, to go through a complex process of taxation dealing with bills of costs exceeding to $45,000 and $48,000 in circumstances where the matter is going to the Full Court for consideration of the substance of the matter and we would say ‑ ‑ ‑
HIS HONOUR: I am not sure that I quite understand paragraph 2. Is it on the footing that costs have not been incurred by reason of the respondents position?
DR SCHOOMBEE: Yes. But there is not a cost agreement. The main respondent is a statutory corporation and the point is that there is no cost agreement in place.
HIS HONOUR: But the respondent does not appear to be sued as a statutory corporation, or is executive director a ‑ ‑ ‑
DR SCHOOMBEE: Yes, it ‑ ‑ ‑
HIS HONOUR: It is a statutory corporation, is it?
DR SCHOOMBEE: It is. That is right.
HIS HONOUR: By that name?
DR SCHOOMBEE: Yes. It is a corporation sole under the CALM Act. And that is the first; and really the effect of it, your Honour would know from the pleadings the effect of opponent, the State is just there because there may be officials from CALM that come into the picture.
HIS HONOUR: But why would costs not be recoverable by the first respondent?
DR SCHOOMBEE: Well, the argument is that, as far as the - there is not a fee agreement in place between the first respondent and its solicitors.
HIS HONOUR: And is that a prerequisite of the recovery of costs?
DR SCHOOMBEE: And on the - on section 62A of the Legal Practitioners Act, as I understand it, there is a requirement that the Crown can recover costs on the basis, or like a private party, or a private individual. And we say that if you transpose that, in the case of a statutory corporation like the first respondent, then that corporation, the "it" should have a fee agreement in place. But that is one dimension of the case. That is the question of whether the - that the process has not been completed. The additional factors, as we say, are that, firstly, our clients say they will be prejudiced by having to pay over this money in circumstances where it may well have to be repaid as deposed to by Mr Bennett in his other affidavit.
HIS HONOUR: Well, the repayment is not perhaps so critical because, if it had to be repaid, there is presumably no problem with repayment. The question, I take it, from the point of view of the applicants, is the problems that might cause for the continuance of the litigation.
DR SCHOOMBEE: Yes, the fact that if they have to pay out they will be financially prejudiced by paying out money. We are not saying that they will not repay it, we are not saying that. But we will say that we will have to fork out on what is, in effect, an interim basis, fork out very substantial amounts of money which would prejudice us as environmental organisations running on a tight budget if we have to pay that out.
HIS HONOUR: Does that appear from the supporting affidavits, that is the implications for the continuance of the organisations?
DR SCHOOMBEE: It says that they run on a - I can take you to the affidavit what is said by Mr Bennett. I do not think we put it - it is on page 6 of the affidavit of Mr Bennett's ‑ ‑ ‑
HIS HONOUR: Would you identify the affidavit?
DR SCHOOMBEE: I will. It is sworn on the - affirmed on 16 December.
HIS HONOUR: And is there a similar affidavit in each application?
DR SCHOOMBEE: Yes, there is a similar affidavit - application. And the relevant paragraph - sorry, it is a composite affidavit actually.
HIS HONOUR: Is it?
DR SCHOOMBEE: Yes. And on page 6 it actually deals separately with the two applicants but in the same terms, paragraphs 15 and 16. And we would add, sir, that this is not a case where we simply - it could well have been a case where you have taxed bills of costs and it is just a question of payment, but if we look at the actions and going ahead and actually taxing these large bills in the actions, in a circumstance where we were to succeed in the High Court on any of the points, the actions would revive and all of that process would have been wasted.
We say that, in those circumstances, it is really simply unreasonable of the respondents, and I think their attitude is clearly reflected in their attitude to the injunction, if you can call our application an injunction, it is a very mild injunction, but on the stay of simply saying: well, hold fire; we have got a definite date now when the matter is going to be heard. We do not want to speculate when the Court will hand down a decision, but it is not something that is on the Never Never or up in the sky, there is a definite date. Why go ahead with this process.
HIS HONOUR: Are there any - well, two things: one, do the Supreme Court rules of Western Australia contain provision or express provision for the staying of costs orders?
DR SCHOOMBEE: I will just have to take instructions on that. To my knowledge, and that is shared by my colleagues on this side of the bar table and my instructing solicitor, there is not a specific order, but it is just a general matter that you could stay the execution of an order, similar to the one in the High Court.
HIS HONOUR: All right. Now, the other question I was going to ask you, are there any authorities on this issue?
DR SCHOOMBEE: Yes, your Honour. I think we have sent the Court a list. I think the leading case on the question of the construction or the issue of a stay in this context is the Jennings Construction matter. But may I just, before I deal with this, just make this point. That we are in a somewhat of a limbo situation because, as your Honour knows, special leave has not been granted, but in essence we are certainly some way down the track. Normally, where special leave has been granted, of course, this Court has a wide discretion to stay proceedings under section 77U of the Judiciary Act. and it is - was been said that once one is at the position where special leave has been granted, it was said by his Honour Mason CJ in the case of Smith versus the New South Wales Bar Association which was decided in 1991 - Smith v New South Wales Bar Association (1991) 66 ALJR 219 at 220 and I quote from the case:
[12.05pm]
In a case such as the present when special leave has been granted and appeal is pending, the Court has a discretion to grant a stay unqualified by the restraint of exceptional circumstances.
Now, I accept technically we do not fall in that, but when we go back and we have to rely on the established inherent jurisdiction of this Court, confirming cases such as Jennings Constructions and Burgundy Royale, which is reported in (1986) 161 CLRs at 681, then we say that there is a different circumstance from where you simply come and say: well, we are relying on the extraordinary jurisdiction of the Court. There is a chance we get special leave, we do not know what will happen, assist us.
We say that we have certainly gone a long way past the hoop and may I say this, with respect, I think part of the reason for rolling into one the special leave application and the substantive appeal may well have been the issue of why did we not amend the procedural issue on which we filed submissions and explained that?
HIS HONOUR: But the authorities that you refer to are authorities in which the subject matter of litigation, it might be property for instance, about to be sold.
DR SCHOOMBEE: Yes, I understand. Yes.
HIS HONOUR: Say by a mortgagee. In that situation the Courts have said: well, it may be that if a stay is not granted of the order below, by the time the matter gets to the High Court the properties disappear with no prospect, perhaps, of recovery. But that is a quite different situation, is it not, to a costs order?
DR SCHOOMBEE: Yes. Yes.
HIS HONOUR: I mean, there is no subject matter of the litigation that disappears by reason of enforcing the costs order. The question perhaps really is the effect that non-stay would have upon the conduct of the litigation and the particular position of the applicants as organisations which are not commercial organisations in the ordinary sense of the term. I mean, they are the matters really that one should be looking at. Is there any authority in that area?
DR SCHOOMBEE: We have not been able to find any authority in that specific area. I know that the Jennings case refers to the jurisdiction being enlivened by the preservation of the subject matter, but with great respect, I would argue that dealing with a matter such as inherent jurisdiction, that one would not say that it is simply limited to those circumstances, but we have not been able to find - our researchers have not been able to find authority on that specific point.
HIS HONOUR: All right. Thank you for that. Mr Mitchell, what do you wish to say?
MR MITCHELL: Yes. Your Honour, firstly on a factual level we would say there are a number of matters which are significant. Firstly, as I think your Honour noted, there is no question of the capacity of the respondents to pay costs if it turns out that they ‑ ‑ ‑
HIS HONOUR: Well, you need not trouble about that aspect.
MR MITCHELL: Yes. We note that there is no ground of appeal that relates to costs specifically, it is simply an incidental order. Importantly, and perhaps most importantly from the factual side, the applicants do not say that they cannot pay costs or that they cannot proceed with this action or continue to exist if they have to pay costs. Of course, if they did say that, then questions as to costs in these proceedings might arise. But all that is put is that the applicants would be financially prejudiced.
HIS HONOUR: That in part may depend upon the state of play at the moment, because the costs that have been taxed, while substantial, does in a sense pale into insignificance with the costs that have been claimed and not yet taxed. If the matter proceeded to taxation, the scenario might well change.
MR MITCHELL: Well, one assumes that the affidavit of Mr Bennett, where he is passing on the information outlined to him by the various applicant bodies, takes account of that. They do not, as I understand it, say that if we have to pay this amount of costs, we will be wound up or we will not be able to have the funds to pursue this litigation.
HIS HONOUR: Well, it depends what you mean by the costs. If you are talking about the costs as presently taxed, that may well be so.
MR MITCHELL: Yes.
HIS HONOUR: But it might be quite different if the costs are taxed and in the amounts even approximating those that have been claimed.
MR MITCHELL: In relation to those amounts, I do not understand it to be said by the applicants that if costs were taxed in something approaching those amounts, they could not afford to pay or that would in effect bring an end to these proceedings. Now, if they are saying that, then that may be a different question and of course that would have implications both for perhaps the value of the undertakings that have been offered and security for costs of the appeal. But at least on the material at present it is not put in that way. I have handed your Honour a bundle of authorities, to your Honour's associate a bundle of authorities collected by the respondents.
If I could refer you specifically to Sali v SPC Limited; it was a judgment of his Honour Brennan J reported in (1993) 67 ALJR 515. That was a very similar case to this one except that there, there was indeed a bankruptcy notice and a petition for a sequestration order made against the unsuccessful applicant. And his Honour, noting that the applicant's assets would be very substantially prejudiced if that order were made on the costs order, at page 516 in the first column at about point 3 or about point (b) notes:
I turn to consider the question of whether or not the jurisdiction to grant a stay should be exercised in this case. Is it necessary to preserve the subject matter of the litigation? In answering that question, it is necessary to identify what the subject matter of the litigation is.
He refers to what that is and concludes at the bottom of the paragraph at about point (e) on the page:
It therefore appears to me that the application is not one which attracts the operation of the jurisdiction to grant a stay.
So that in circumstances where it would appear from the facts, albeit briefly stated in the judgment, that the pursuit of enforcement of the costs order would have put the applicant's application in jeopardy, or the applicant's solvency in jeopardy. Even then his Honour decided that that was not an appropriate case in which to order the stay. The other decision, Jennings, I have noted and I am sure your Honour is familiar with that decision.
HIS HONOUR: Yes, I am.
MR MITCHELL: Could I also refer you to the decision of your Honour in Manfal Pty Limited in liquidation in the Trade Practices Commission, which is reported in (1990) 65 ALJR at 256. It was an application for relief to appeal from a refusal to grant a stay order. Your Honour notes at page 257, citing Jennings Construction and Burgundy Royale that at about point (f) on the page in the first column, that:
It is clear that the Court will not stay proceedings below pending the hearing of an application for special leave to appeal unless that ...(reads)... that a refusal of the stay would make it difficult for this Court in the determination of the appeal to grant the relief sought.
Citing Drasby, a criminal decision. And although the factual context in Manfal was very different to that presently, we would suggest that your Honour's comments at page 258 in the last substantial paragraph of the judgment are apposite here:
It is important to keep in mind that the Commission has a judgment of the Full Court in its favour and that the directions made by ...(reads)... is warranted. That is not done when, in the end, the Court is left with no more than questions of cost and convenience.
We also handed up the authority, and I will not take your Honour to it, Vampilex Limited and Perpetual Trustee Company Canberra Limited, a judgment of his Honour Kirby J reported in (1996) 70 ALJR at 603. We would say that that is all that is involved here, questions of costs and convenience. That does not, we say, enliven the exercise of the discretion to grant a stay and the considerations which are often referred to, having been identified in the judgment of Brennan J in Jennings Construction are really predicated on a stay being necessary to preserve the subject matter of the litigation and just referring to the page references, that is at page 683 and 685 of the judgment at 161 CLR. Unless I can assist you further, those are my submissions.
HIS HONOUR: Yes. Thank you, Mr Mitchell. Dr Schoombee?
DR SCHOOMBEE: Your Honour, can I just refer to the matter, perhaps just on the matter of La and Sali in the SPC case. That was perhaps an extraordinary case because the actual application was to stay the listing of a sequestration order petition before the Federal Court, and that is set in the first column of the judgment on page 515, and I think the Court was certainly influenced right at the end of the judgment by the fact that the judge said those matters are matters which can be appropriately for consideration by the judge constituting a Federal Court. And certainly in the column 5 one sees, the learned judge refers to the issue of the interrelationship between the right to the appeal and to the extent that that may be endangered and says that is not an issue, not really an issue in this case.
HIS HONOUR: Where is that?
DR SCHOOMBEE: That is 516. He says that the subject matter of the litigation, 516, second paragraph, end of the second paragraph, characterises the right of the applicant to appeal to the appeal division of the Supreme Court of Victoria. Now, in this case we can only deal on our affidavits on the facts as they now stand. We are not sure what the level of the taxation will be but certainly our clients will be severely prejudiced if that taxation process goes ahead.
One way of dealing it is perhaps to defer the consideration of this matter until there is more clarity, but we would certainly say that in exercising - that is, clarity on what will be payable, because as your Honour rightly observed, with respect, that if we are talking about bills of costs in the vicinity of $40,000, then certainly just on - in the Kerr Hester case and double that in the other for the applicant, we are looking at very substantial amounts of money and the ‑ ‑ ‑
HIS HONOUR: Well, if that were done, and that is certainly a case that is open to me, it would not of itself preclude the respondents from enforcing the existing costs orders.
DR SCHOOMBEE: Well, it is very difficult to predict, I mean, for any organisation, particularly a non-commercial organisation, what exactly the effect of those payments should be.
HIS HONOUR: When were these costs that have been taxed, taxed? I do not need precise dates so much as some idea of how long ago.
DR SCHOOMBEE: The review took place yesterday.
HIS HONOUR: What is the review?
DR SCHOOMBEE: The review is where it goes before the Registrar and he makes a finding, actually, on a contested bill of costs and attaches his allocatur [sic].
HIS HONOUR: You mean the review where the question was argued as to the right of recovery at all?
DR SCHOOMBEE: Yes.
HIS HONOUR: I see. And when were the costs themselves taxed, though? I do not need a precise date for each one but just some sense of when it took place.
DR SCHOOMBEE: My instructions are that the taxation became effective on the allocatur [sic] but the other process occurred at about a month before. So we are dealing with recent matters and matters that are still proceeding. As I say, there is the consideration - we do not read any of the judgments as precluding that consideration, the Court's inherent jurisdiction, but really we are looking not only at the possibility of paying a lot of money but getting involved in a very complex and timeless process that will be entirely wasted if we were successful at a hearing which is now in the near future.
HIS HONOUR: Yes, thank you. Well, I propose so far as the summons for an injunction and for a stay in each case is concerned to simply adjourn those summonses till 2.15 and I will then indicate what course I propose to follow. The question of the formulation of matters for the Court as discussed earlier can stand over till 2.15 and I make no formal order in that matter at this stage. I will wait until I receive a minute. Considering that we have gone on now for a bit longer, is that enough time for counsel?
DR SCHOOMBEE: No, I think perhaps we can go to 2.15.
HIS HONOUR: Are you happy with that, Mr Mitchell?
MR MITCHELL: Perhaps I would not mind a little longer if the Court has that time, maybe 2.30 or 2.45.
HIS HONOUR: Well, I will make it 2.30 if you like. Well, in the case of all these matters, they will stand over until 2.30 pm. Thank you. The Court will now adjourn.
LUNCHEON ADJOURNMENT
[2.30pm]
HIS HONOUR: Mr Mitchell.
MR MITCHELL: Your Honour, during the break I prepared an agreed minute of questions which I believe is agreed by my learned friends. I hand that up and also a minute of proposed orders.
HIS HONOUR: Thanks, Mr Mitchell. Just give me a moment to have a look.
MR MITCHELL: Yes. You will notice, sir, a hand-written amendment to paragraph 3. The "will" is substituted with "can".
HIS HONOUR: Yes. That seems to be in order, thank you.
MR MITCHELL: I think my learned friend has a copy that has now been signed by counsel for all the parties and it is probably appropriate that that be put before the court.
HIS HONOUR: Dr Schoombee, are you content that an order be made in terms of the minute?
DR SCHOOMBEE: Yes, your Honour. I just want to check one possible typographical error apart from that. I think that is fine except for a question mark, the very last question, but I do not think that is - otherwise we are content with the amendment in it - that paragraph, thank you.
HIS HONOUR: Very well. There will be an order in terms of the minute of proposed orders signed by me. Yes. Thank you, Mr Mitchell.
MR MITCHELL: In relation to the other matter, the question of the injunction I have taken some instructions in relation to that issue.
HIS HONOUR: Yes, thank you.
MR MITCHELL: And I am instructed that the respondents are prepared to make an undertaking. I should say from the outset that that undertaking does not concede that injunctive relief is available to the applicants in the circumstances, nor does it concede anything as to whether an undertaking will or should be given after the conclusion of the special leave application on 2 April 1998. The undertaking is given simply as a pragmatic means of resolving the point at issue.
HIS HONOUR: Thank you.
MR MITCHELL: The respondents undertake that they will give to the applicants 14 days notice of any logging operations. I have a - only one copy, but a minute that I can hand up.
HIS HONOUR: That is all right.
MR MITCHELL: Give to the applicants 14 days notice of any logging operations including road or earthworks associated with logging operations to occur in the forest areas referred to in the applications for injunction in each of the matters P31, P32 and P33 of 1997 where those operations are to occur prior to 2 April 1998.
HIS HONOUR: Is the notice qualified as to period or reasonableness? How is it expressed?
MR MITCHELL: The 14 days notice?
HIS HONOUR: I just missed that. It is a 14 days notice, is it?
MR MITCHELL: A 14 day notice.
HIS HONOUR: Yes.
MR MITCHELL: For any logging operations that are to occur prior to 2 April.
HIS HONOUR: Yes, thank you, Mr Mitchell.
MR MITCHELL: In those circumstances we would say it is appropriate that the application for an injunction should be dismissed with there being no order as to costs. I make it, again, clear that the undertaking is given without conceding the appropriateness of that application having been made or certainly, we would oppose any order as to costs made against the respondents.
HIS HONOUR: Yes. I understand that. If I were to dismiss the application then if the need for injunctive relief arose it simply means that a fresh summons would have to be taken out and more paperwork, and thee is quite a lot of that around already.
MR MITCHELL: Yes.
HIS HONOUR: I think, to my mind, Mr Mitchell, the appropriate course is that I simply adjourn the summons for an injunction.
MR MITCHELL: I would not have any objection to that course.
DR SCHOOMBEE: Could we just be heard on that? Is it possible to be heard on the adjournment issue?
HIS HONOUR: Well, if you think you can better your position, yes.
DR SCHOOMBEE: Because we had actually sought to have the matter not only up to the hearing but to the determination of the case.
HIS HONOUR: I know you did.
DR SCHOOMBEE: And it is just - it would mean that we would have to come back before this court at some stage.
HIS HONOUR: Well, it could be raised - if it were necessary it could be raised at the hearing before the court on 2 April.
DR SCHOOMBEE: Yes.
HIS HONOUR: I would not look a gift horse in the mouth, Dr Schoombee.
DR SCHOOMBEE: Yes. In that case I take it it would be appropriate and we would take the 14 days to be prior written notice on that basis but otherwise the matter can then simply be adjourned on that basis.
HIS HONOUR: Well, the undertaking has been given.
DR SCHOOMBEE: Yes.
HIS HONOUR: It is not an undertaking that has been given as I understand it, to be incorporated in any order of the court. It is simply an undertaking given by one set of parties to another set of parties. The summons itself, as I envisage it, will stay on foot. I propose to adjourn the summons to a date to be fixed with liberty to restore the summons to the list on 48 hours notice. Now, in doing that, I have regard, so far as injunctive relief is sought, to what has been said by Mr Mitchell and so far as the stay order is concerned, I am not prepared to make an order to that effect at this stage as it seems to me that no satisfactory warrant for that course has been provided thus far.
If the respondents proceed to tax the major bills before 1 April the situation may, of course, change. And if there is to be a further hearing in respect of a stay of costs orders I would expect counsel to make submissions as to whether the position of these applicants as environmental organisations is different to that of other litigants. I thank counsel for their cooperation in this matter. The court will adjourn.
AT 2.38 PM THE MATTER WAS ADJOURNED
INDEFINITELY
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