State of Queensland & Anor v The Commonwealth of Australia

[1989] HCATrans 1

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B80 of 1987

B e t w e e n -

THE STATE OF QUEENSLAND and
THE ATTORNEY-GENERAL FOR THE

STATE OF QUEENSLAND

Plaintiffs

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

GRAHAM FREDERICK RICHARDSON

Second Defendant

Application for remitter and

for further and better particulars

Queensland

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 JANUARY 1989, AT 10.16 AM

(Continued from 16/12/88)

Copyright in the High Court of Australia

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MR G.L. DAVIES, QC:  May it please Your Honour, I appear

for the applicant. (instructed by the Crown

Solicitor for Queensland)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If it please Your Honour, I appear with my learned

friends, MR M.J. BLACK, QC and ~fR. C.M. MAXWELL, for

the defendants. (instructed by the Australian

Government Solicitor)

MR DAVIES:  Your Honour, there were, as you will recall, in

effect, three matters before you on the last couple

of occasions. The first was a question of particulars,

and Your Honour will recall you ordered particulars

to be given. The second involved the question of

remitter to another court of some factual

questions and there was agreement between the
parties that the second of the two questions
before the Court should be remitted for trial,

the question of fact, and the only question was

at what stage that should be done.

The third question was an attempt by the

parties to agree upon a case stated for the

Full Court en a question of law which, if it were provided, would certainly assist and may in one

sense resolve the first of the questions. Can

I deal with the matters in that order, Your Honour?

First of all the question of particulars~ t.here

have been some given to us and they are, in our

respectful submission, inadequate in a number of

respects. In some of those respects the

respondent has said, "We will give you some more

but it will take us'·- varying lengths of time to ..	-...
I thinl<;'~our months." In others they have said,
"That is all we have got, we will not give you
any more", or "cannot" I am sorry, "will not
because we cannot."

Your Honour, I wonder if I could have my

beside me because I do not have the assistance	instructing solicitor sitting at the bar table
of a junior with me this morning.

HER HONOUR:	Certainly.
MR DAVIES:	Your Honour, can I really start with a point

that you will recall - my learned friends will,

of course - the acknowledgement by our learned

friends with respect to the particulars that

if they were required to give them, and there

was absolutely nothing wrong with the request,

in fact, it was a perfectly correct request and
the particulars were sought, the proper particulars

to have been sought. That appears in the transcript

and I will not take Your Honour to it. The

second thing that perhaps I would ask Your Honour

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to look at- has Your Honour seen the affidavit

of Mr Dunphy, that is, the affidavit which was

filed this mont~

HER HONOUR:  Not in detail, Mr Davies. I am aware that

it has been filed, that is all.

MR DAVIES:  Your Honour, it might be convenient, perhaps,

if I take Your Honour to it and in particular

to I think it is the last letter, which is exhibited to that affidavit. I am sorry,

Your Honour, it is the second last letter. It

is the letter of 28 December. Before I take

Your Honour to it - I should not ask Your Honour

to read it from beginning to end at this stage.

HER HONOUR:	I have not yet relocated it.
MR DAVIES:	It is exhibit B, I am sorry, Your Honour. It

is in a group of letters and it is the last

of that group of letters which are exhibit B -

the second last, I am sorry, of the letters

which are in that exhibit B. I have a copy here

if Your Honour would rather - - -

HER HONOUR:	It might be easier.	Thank you.
MR DAVIES:	Your Honour, the	respondent has responded

to that letter by a	letter of 12 January, which
is not before you.	Could I hand up a copy of
that too?

HER HONOUR:	Yes, thank you.
MR BLACK:	Might I interrupt, Your Honour, to say that

the letter - it is desired to be put before the

Court, as it were, on affidavit. The reason for

that is that it was thought proper to have before
the Court, in affidavit form, the time it·would

take to produce some of the extra data. Might

I, with leave from my friend, further interrupt

by handing Your Honour the affidavit of

Andrew Turner, an assistant secretary in the

Department, sworn today, which annexes and verifies

the letter to which my learned friend refers.

MR DAVIES:  I have no objection to that, of course,

Your Honour.

HER HONOUR:	Do you have this, Mr Davies, a copy of that?
MR DAVIES:	I was given a copy of that this morning,

Your Honour.

HER HONOUR:  Well, I will return the letter and take the

affidavit, thank you. I suppose I should give

leave to have this affidavit filed in Court?

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MR BLACK:	Yes, would Your Honour do so.
HER HONOUR:	Yes, Mr Davies.
MR DAVIES:	Now, before I take Your Honour to those letters

in a little more detail could I ask Your Honour

to look at the particulars which were given.

It is a document headed,"Further and better particulars

of defence to further amended statement of claim".

HER HONOUR:	Yes.
MR DAVIES:	Now it commences, Your Honour, with something

which we say are neither particulars nor responsive

to the request, nor indeed anything mor~ than

something in the nature of a commercial. or a public

relations statement, that part which is headed

"A. General". If you just look, for example, at

the last sentence of the first paragraph, that:

The property demonstrates an array of features of outstanding universal value from the point of view of science, conservation and

natural beauty.

And if you look at the last sentence in the next paragraph, paragraph 2, that it:

displays the full diversity of these

interrelated ecosystems including species

richness, primitive plants and animals

and other species of unique evolutionary significance, all of which contribute to the outstanding universal value.

They are all very general broad statements,

Your Honour. They do nothing by way of elucidating

particularity and they are, as we said, something

in the nature of a public relations or press

statement rather than - 3(i), the middle of

3(i), they talk about: 

superlative examples of tropical

rainforest -

and what happened millions of years ago and

that Australia's marsupials are unique and so on.

Now, I do not want to take Your Honour through

this sentence by sentence, paragraph by paragraph,
but apart from that and apart from setting out

in detail the guidelines which the World Heritage

committee has promulgated pursuant to Article 11

of the Convention which we certainly do not mind, at some

time or other, getting before the Court because they will,-

we would be producing them anyway, but they are

just not part of the particulars.

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Now, we then objected to the whole of

paragraph A and we said,"This is not responsive,

these are not particulars, the whole lot should -

you should withdraw it or we will apply to have

it struck out." Now we said that in Mr Dunphy's

letter, in the first part of Mr Dunphy's letter

of 28 December, dealing on page 2 really, towards

the top, the first full paragraph on page 2.

Your Honour, the respondent responds to chat

in its letter of 12 January by, really, corrn:nencing

to - it would seem that the paragraph on page 1

and going over to page 2 to, really, in a sense,

be rearguing the question of whether they were

obliged to give particulars. I say that because

they refer to"the so-called negative pregnant"

at the top of page 2.

Then, after saying that they deal with

Part A. I will just leave out the rest of page 2

because I want to come back to that, to the reasons

why they will and will notgive povler. Then,

dealing with Part A down at the bottom of that

page and over to the following page, they say in

the last sentence of that paragraph, at the top

of page 3:

it is recognised that a combination of

features can be of outstanding universal value

just as an individual feature, formation

or site can be.

What it seems they are saying is that somehow

or other, that without some necessary interrelation

that some of the parts is greater than the whole.

That view, which they say is recognized, was, in

fact, refuted by the Helsham Commission. Now,

I do not want to rely on it except to really

adopt what they have said is part of the argument

we would advance.	What the Helsham Commission
said, Your Honour - this is paragraph 3.3.	I have

got a copy of his report here. Can I hand up the

Helsham Report. I am reading from paragraph 3.4.3.

HER HONOUR:	Yes.
MR DAVIES:	Perhaps if Your Honour just reads that

paragraph I will not read it out to you. We

accept that rejection as part of our argument,

Your Honour. It is dealt with in other paragraphs

in that report but it is sufficient, I think,
to take Your Honour to that to make the point

we are making. What we sa~ in any event, what

they do in Part A does not attempt to interrelate

any specific aspects of natural or cultural

heritage but simply to say altogether, "It is a jolly good area and there are lots of things

in it, some of which we have attempted to

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particularize in the particulars that you have

requested from us." But it really does no more than

that and, in our respectful submission, it is

unhelpful, it is unresponsive and it is not,

in our respectful submission, particulars but a

further generalization. So, in our respectful

submission, that really should be struck out

from the particulars.

I then go to the specific requests which we

asked and go first to paragraph l(a). Perhaps

it might be convenient to explain why - first

of all I should tell you what our criticism really

is. Under paragraph l(a) the Cormnonwealth was

obliged to give particulars of the facts and
circumstances showing the property was natural

heritage and the response was to refer to some
other documents, and really saying, "Look at these

other documents, you will find it all in there

somewhere, sort it out for yourselves." What

we say is, it is not an answer to a request for

particulars to refer to some other documents

and say, "Look at them." There is an obligation

to identify what is requested to be identified in

the request for particulars.

Their answer, Your Honour, appears - or the

reason why they have not done that and are not

prepared to do that, appears at page 3 of their

letter. They say, if you look at the last

sentence under question l(a):

The defendants assert that the property

can be shown to be natural heritage on

the basis of the matters set out in the

nominations~ the report and Parts A and B

of the particulars.

So somewhere :in all those documents, they say, you

will find what you are looking for. In our

respectful submission,that is not proper particulars

and they have got an obligation to identify

the particulars in that respect. Passing then to
question l(b): in that the respondent was asked
to identify, by location and extent the whereabouts
of the physical and biological formations, whether
they were outstanding on the basis of aesthetic
or scientific point of view and why. What they

have said, in answer to that, is, "Well, there is

some more coming." That is what they have said

in answer to l(b). Perhaps I should, because this

is the first of the occasions on which they have

said "there is more coming", I should take Your Honour

back to page 2 of their letter to explain what

they have done. As I have said, in some cases

they have said, "there is more coming" and other

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cases they have said, "we just do not have it."

If Your Honour goes back to page 2 of their letter

and if you look at the second full paragraph on that

page commencing, "The information", you will

see that t~ey have divided it into two categories.

The first is they have information which:

is in a form which did not enable precise

responses to be given to the questions

asked, and in other cases -

they say -

the defendants do not hold information

in any form which would enable a more precise

answer to be given.

We would ask, rhetorically, how could the property

ever have been identified and delineated in
accordance with the requirements Article 3 of
the Convention without that having taken place,

it just could not. So what they are saying is,

"We did not ever do the work required to identify

and delineate this property but that in some cases

we have got this information, we think, in some

other form which we will be able to give you." And in other cases, "We have not got it at all and for that reason we will not ever give it to

you, unless" - as seems to be said somewhere else -

"in the course of preparation for this trial we have

to do some more research, as we probably will, and
then if we have done some more research we will

provide you with some further information then."

But they say in the next paragraph, you will

see:

As regards the first category ..... the

defendants are in the process of converting

the information as held into a form which

will enable more precise answers to be
given.	You will appreciate that it is

necessarily a time-consuming process to

break down the information as presently

compiled into the detailed source data

and to reconstruct it in the appropriate

form.

The appropriate form is the form required for

identification and delineation under Article 3

of the Convention. I am repeating myself by

saying this indicates clearly enough the Commonwealth

just did not ever do that. But they say they want:

additional time for compliance with the

request for particulars -

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and they say -

This applies to question l(b) -

and that is how I came to it - because I just

started on l(b) -

l(c)(iii), l(c)(iv) and (v) and

l(d)(v) and (v~).

Perhaps I can just complete what they say here.

They say:

In relation to those questions where the

defendants lack the necessary information

to answer precisely, it is clearly not

possible for particulars to be given

where none exist.

But may we just interpose there to say that if

particulars do not exist of an allegation which

is made in a pleading then the consequences in the

end is to strike that allegation out; in this case,

to strike out the denials. Now, I do not urge

upon you this morning that that should be done

but in the end, unless the particulars are given,

then that is the proper consequence, in our

respectful submission. They go on to say:

To that extent, the "case" as set out .....

is the defendants' case as it presently
stands, and the particulars provided are
the best particulars which the defendants
are able to provide.

Well, if they are not good enough then, in our respectful submission, the "negative pregnant"

allegation cannot stand.

In the event that further information is

obtained by the defendants which would

fall within the present request for

particulars, appropriate particulars
will be provided.

Well, that is only if they have to do it for the purpose of the trial, they say, and only then.

Can I just make one other point about this in

a general way? Your Honour's order was made two

months ago. They have had two months to do this

now. What they are really saying here, and in

the affidavit which has just been handed up to

Your Honour, they need up to another four months

to provide something which they should have had

before they identified and delineated the property

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in which they hava had a further two months to

do since the order which Your Honour made.

Can I go back then to paragraph l(b), the request

which was made under paragraph l(b)? Our

objection is that they have not identified it.

If Your Honour is going to give them some more time, and we certainly do not object strongly,

subject to any question of costs, to further time

of a couple of weeks - the.y say two to four weeks.

What we do strenuou~ly object to is this very

long period time that is been asked in some other

respects, of three to four months, for information

which we say they should already have, if they have

done what they have done.

But we are content for the moment, subject

to any question of costs, to leave the argument

on question 1 (b) , the sufficiency of particulars

to another day, that is, until those particulars

have been provided. Can I then pass to paragraph l(c).

They were asked to provide the threatened species

which were relied on, the facts and circumstances
showing that they were outstanding universal value

and the precisely delineated areas which constituted

their habitat.	They were the three things they
were really asked in l(c).	They say in their

answer, in their letter, the reason they have not really

answered it - and they accept they really have not

in a sense. What they say is, and this is in

the second sentence under l(c)(ii):

In the view of the defendants, the fact

that a species is rare, threatened or

endangered is necessarily relevant to

its outstanding universal value.

Well, it may be of some marginal relevance but

it does not prove that the species is of outstanding

universal value.	Can I take Your Honour, again,
to what the Helsham Report said about this?	Could
I ask Your Honour to look at paragrapl's 9.2.11
and 9.2.12?	What is said there, in effect, that

the fact that a species is threatened is really

just a threshold qualification - page 159,

Your Honour. So, Your Honour, in our respectful

submission, they have not given us any particulars

as to the outstanding universal value from the

point of view of science of conservation in

respect of any such species. The other criticism,

of course, that we make - and that appears from
Mr Dunphy's affidavit and his letter - is that

they have purported to do this in terms of location of the habitat by reference to a grid map with grids of ·- _ 1 think it is 324 square kilometres, and

that is as precisely as they have delineated the

habitat of these threatened species and, of course,

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it is obvious, and we have said in our affidavit,

that many of these species may have a habitat

of very much less than a kilometre and yet they

have said, "Well, somewhere in this 324 square

kilometres you will find the habitat of this

threatened species and therefore, in effect, it

follows that we should preserve forever the whole

of this 324 square kilometres." They say then in the last paragraph on page 3 of their letter

that:

Otherwise, the defendants do not possess

in any form ar.y additional information showing

the outstanding universal value of particular
species. Additional research would be

required.

Well, again, we just make the point that they show

they did never identify in terms of Articles 1 and 2

as they were required to.	l(c)(iii~ they refer
to our criticism of the grid maps.	I have alreadymade

that - Your Honour, it is quite impossible, in our

respectful submission, it identify habitats by

reference to grid maps of that kind. They ought

to do much more precisely than that. It is not

perfectly clear how precisely they are going to

do it or whether they are going to do it but they
do say a further two to three months would be

required to provide habitat distribution which

seems to acknowledge an obligation to provide

that as the particulars say the request for

particulars requires them to. Again, I suppose,

in the end we have to leave the argument, the

precise argument on that, to another day.

But what we are not corrpletely sure about is

whether what is said there represents an

acknowledgement of the failure of the defendant

to provide the particulars so far or whether

they say we do not have to do it but if ordered

do it. But what we say it is perfectly clear to we will do it - if further ordered to we will that what they have done so far is not an answer.

(Continued on page 60)

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MR DAVIES (continuing;:  The same applies to l(c)(iv)

and l(c)(v), Your Honour, and again they have made

the same sort answer that, 'We need at least another

two to four weeks to provide the information evaluating

it by reference to the" - as they put it rather

disingenuously, "terminology". With respect to

paragraph l(d), rour tfonour, the Commonwealth was

obliged to identify by reference to location and

size natural sites and delineated areas of

outstanding universal value from the point of view
of scienc~ conservation or natural beauty and to

state the facts and circumstance relied on to show

that each was.

What the Commonwealth says in the end is that

they could provide further grid maps in accordance

with what they have already done, that is the 324 square

kilometre grid maps, but they say quite accurately

at the bottom of the page that they assume that

we would not find it of assistance. Well, of course,

we would not, and they then say that they:

otherwise unable to provide further

particulars ..... Additional research would

be required to delineate more precisely

the locations of the scientifically
important species.

So it is not a question of"more precisely". It is a question of delineating them at all and,

in our respectful submission, again it is not clear

whether they acknowledge there that they have an

obligation in answering the particulars to do that

or whether they would only do so if further ordered

by Your Honour to do so. Can I go then to

paragraph l(d)(v)(vi)? They acknowledge, if you go

to their letter, that:

annexure J contains only the principal

natural sites of outstanding universal

value. The defendants have identified

..... 500 landscape units of significance.

The preparation of a complete list of those

sites -

will take a month. Again, we say that is something

that ought to have been done before delineation

identification and to be more precise - well, to be

precise at all, they mean - it would take one to two

months. Clearly enough they have an obligation

to do that, Your Honour and, in our respectful submission, they should do that, and if they do not acknowledge their obligation, then they should

be ordered to although, in our respectful submission,

the order which has already been made clearly covers

it and, with respect to question 2, which required

them to supply particulars relevant to cultural

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heritage, they just say we:

are unable to provide further particulars

without additional research -

not that"we are going to do it", but just that

"we cannot do it without addition research", and yet

presumably they were relied upon as being part of a

cultural heritage before they identified and delineated

and certainly they did so for the purpose of listing

before the World ~eritage Committee.

So, Your Honour, with respect to the questions

of particulars, in our respectful submission, it

is clear that in almost every case they have failed

to give the particulars requested. Although they have
given some of them, they have not identified,
they have not delineated, they have not stated

the respects in which the areas even partly delineated

are cultural or natural heritage. I should also

mention, of course, that the particulars which Your Honour ordered were not the first time we

had requested particulars. We requested particulars

in a shortened version, Your Honour, but really

in substance asking the same sort of thing, in

February last year. Your Honour, that is really

all we want to say, I think, about the question

of particulars.

HER HONOUR:  What precisely do you seek me to do in respect of

them?

MR DAVIES:  Your Honour, I suppose I really seek to find out

from the respondent whether in fact they are

acknowledging an obligation to provide further

particulars in all the respects in which we have

submitted there is an obligation and if they say in

those cases that full particulars have been supplied

in accordance with the request, then we would in
each of those cases ask Your Honour to order them to

supply further and better particulars in each of

those cases. In some of them it appears clear enough

that they acknowledge an obligation to provide further

particulars, but it is not clear at all from the letter

how far that acknowledgement extends. Your Honour,

the second question really is the question of remitting
the factual questions involved in the second question

to another court.

Your Honour will recall that on the previous

occasion it was agreed between us at the bar table that

the principle of law with respect to that second

question had been stated clearly, though in slightly

different terminology by the members of this Court

in RICHARDSON V THE FORESTRY COMMISSION, and

Your Honour will recall I cited to you what you

had said and I think what some of the other Justices

had said in that case, which indicated that on the

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question of reasonable proportionality, or however

one phrases it upon that second question, the test

seems to be perfectly clear, and therefore it is simply

a question of looking at the facts in accordance
with that test. Now, I say all that because when

I come to the question of whether in fact a case

can be stated - and it appears from discussions between

my learned friend and I that that last question cannot

be resolved today, that is whether a case can be stated

and what its terms will be - but can I simply mention

the reason I am mentioning this acknowledgement

on the previous occasion is that into our learned

friend's version of the case stated he would like

there seems to have crept back in a question about the validity

of the regulations "Which seemsto me to be the second

question once again, notwithstanding what seemed

to have been a clear acknowledgement by him on

the previous occasion that so far as the law was

concerned it was perfectly clear.

What concerns us at this stage, Your Honour, 1s

that notwithstanding our request for particulars in

February 1988, notwithstanding the fact that the

Commonwealth at least went through the motions of

identification and delineation and made the

proclamation and the regulations last year,

notwithstanding the request which was made two

months ago, the Commonwealth is saying to us now

either"we have not got the informatiod', as they

would put it, "in the terminology of Articles 1 and 2 -
we would say they have not done the work for the purpose
of identificatio!l. in Article 3 - and, "We will take up
to three or four months to do so." And I mention that
once again simply in the context of this question of
remittal of the second question because if, in fact,

the case on the second question is not remitted now,

we will have another four months, and that will no doubt
grow, before the particulars have been given in an

acceptable form, before any attempt has been made

to remit the matter and consequently to secure

a judge.

Now, we made some inquiries from both the

Supreme Court and the Federal Court in Brisbane and

our inquiries indicated that it would not be before

April that a judge could be obtained in the Supreme

Court and it would not be before the middle of the

year that a judge could be obtained in the Federal
Court, and there is the additional problem in the

Federal Court, at least until after April, of

obtaining a court room because the Federal Court is

presently using one of the Supreme Court court rooms

for a case which is going until then. So I mention that

simply in the context of the case, the trial of

fact being further and further delayed unless an

order were made now remitting that question, and

it is a discrete question - I am not saying the

particulars are not relevant to that question.	They
are indeed.

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HER HONOUR:  Do I take it from what you are now saying

that there is agreement as to a precise question

to be remitted? That is not what I understood

the situation to be on the last occasion.

MR DAVIES:  I thought there was on the last occasion.

I really took it that way, Your Honour.	I thought that
really what was generally - - -

HER HONOUR:	The Solicitor-General is shaking his head.
MR DAVIES:	He is, but - no doubt he will explain for himself but I suspect that is rather because of a - it
may well be that on the last occasion we were not ad idem but there is an additional factor which
has come into it now, of course, and that is that my learned friend has indicated to me, at least
by tendering to us the case stated with this additional
question in it that he somehow does not accept that the question of law on the second question is clear,
but once the question of law on the second question is
clear then, in our respectful submission, the factual question to be remitted would be, in our respectful
submission, undoubtedly clear.  There could not be
a difficulty about that.
HER HONOUR:	Is it yet clear?
MR DAVIES:	You mean because particulars have not been

given?

HER HONOUR:  Well, perhaps because the question of law

has not been stated.

MR DAVIES:  The question of law we really stated last

time and would be prepared to state again now,

is whether the regulations are reasonably proportional

or however one uses- whatever terminology one adopts

from RICHARDSON to the conservation and management of

the forest, and that is really set out in the pleadings.

That is a discrete question in the pleadings.

The pleadings in this case really seem to have
two discrete questions;	one is the validity of

the proclamation and the second is the validity

of the regulations, and the validity of the regulations

really depends upon whether those regulations, what

they proscribe, is reasonably proportional to the proper

conservation of property of heritage value. Now,

that question, in our respectful submission, is a

discrete question. It is isolated in the pleadings and

I really did, perhaps wrongly assume on the previous

occasion that we were in agreement that that was so,

and Your Honour will recall that our learned friend

said towards the end of the argument, "Well, that

question can be remitted to the State court' and you

will remember I said, "Why not remit it now", and

you said - - -

SlT2/4/HS	63	13/1/89
Queensland

HER HONOUR:	You did not have the pleadings last time.
MR DAVIES:	- - - you said quite rightly that the pleadings

were not clos~d, and perhaps I was a little impetuous

then in asking that it be remitted then, but the
pleadings are closed now and, in our respectful

submission, there is no reason that we can see why

that question cannot be remitted, either to the State

Supreme Court or to the Federal Court.	We do make the
point that from our point of view -

HER HONOUR:  If it is rem1tted the question of particulars must

go with it.

MR DAVIES: 

There is a difficulty, I would have to concede, in that the particulars which are sought are

relevant to both questions, so in that sense we

would submit the question of particulars could

be kept in this Court.

HER HONOUR: 

Yes. It puts the remittee court in a strange

position of not really having control over its own
proceedings if that is done, does it not?

MR DAVIES: 

The difficulty we - we would envisage, Your Honour,

that if things went as planned, that by the time

anything got started in the remittee court, if it

were remitted now, the question of particulars would

have been cleared up and I am just really

concerned about this lead time, that if an order

were made remitting now nothing really would happen

in either court before April.

HER HONOUR:	Yes.
MR DAVIES:	Now, if that is so, in our respectful submission,

that lead time should not be lost, and until it
actually came before a judge in that court, then it

could remain in this Court, and we would hope that it

would be clarified by then, and if it is not,

then we accept the consequence that so far as that

question, that any further argument on the question
of particulars goes before that judge.	We would

accept that consequence because we are anxious

that time not be lost, whereas at the moment it

seems that there is a great deal of time going

to be lost in supplying particulars which, as

we have said more than once, should have been given

some time ago.

There is one other thing perhaps I should say

about remittal. We have made the point that we would

prefer the State Supreme Court to the Federal Court.

Could I just make the additional point, Your Honour,

that from my client's point of view it would be

ver~ very difficult, if not impossible - and

Mr Dunphy's earlier affidavit swore to this - to

conduct this case other than in Queensland, and I say

Sl T2/5/HS	64	13/1/89
Queensland

that because of the information it has on its

computers in Queensland, the work that we are required

to do there, and of course there is the other factor
that there would be not doubt that the judge would

require probably more than one, probably several
inspections of the area, both aerial and on the

ground.

I think that is all I want to say about remittal,

Your Honour. The only other thing that we can

perhaps mention t~ Your Honour at this stage, and

we do not really think we can get very far with

it, is the question of a special case. We each have

our versions of - this is on the first question,

Your Honour - we each have our versions of that,

Your Honour. I will hand up both versions to

Your Honour, but could I just hand up first of

all what we think would be an appropriate special

case. Your Honour, ours does not have any annexures.

Where - perhaps I should ask Your Honour to look

at it first.

HER HONOUR:	Yes, thank you.
MR DAVIES:	Could I hand up then our learned friend's special

case?

HER HONOUR:	Yes.
MR DAVIES:	Your Honour, there are two respects in which

we depart, one is really with respect to our

paragraph S(b), that is as to what the World Heritage
Committee in fact did, whether it in fact sought

to identify and delineate the property in accordance

with Article 3 of the Convention, or not.	We have
stated as a fact that they did not do that.	Our

learned friends do not accept that as a fact and what

they have sought to do is, in paragraph 3 of their

case, to include a number of documents, some of

which I had not seen until a few minutes before
we came into Court, but my learned friend tells

me that they are the documents that went forward to

the World Heritage Committee, and I accept that they

are, but as I say I have not looked at them myself.

Now, it may be that we can reach some common ground on this question.

HER HONOUR:  I think you might well have to if you wish

to rely on it in the stated case.

MR DAVIES:  Yes, quite, but at the moment we are apart.

What I indicated to our learned friend is that I

need to look at, for example, what record we have of

what took place at the hearing before the World

Heritage Committee, and we do have some record

of what took place before the hearing, and whether

we have any other information as to what in fact

that committee did on that day. Now, I just do not

SlT2/6/HS	65	13/1/89
Queensland

know what other information, if any, we have on

that question but it may be that when we have looked
at that information, and if our learned friend accepts
whatever facts we have there, that we can substitute

that for paragraph S(b) and for our learned friend's, what he set out in paragraph 3, in which case we would be able to reach agreement on a case stated on the

first question. Otherwise, then I guess we are

not going to reach agreement and the matter might be
resolved in some way by Your Honour, or just go
to a trial as indeed the second question, in our

submission, must.

The second respect in which we seem to depart

1s, as I indicated to Your Honour, that the second

question in the case seems to have, notwithstanding

what was said last time, crept back into our learned

friend's case - "Walked back in", he said - in

paragraph 7 and question 2. Now, we have some

difficulty in, first of all, understanding why

that is necessary, and perhaps also some difficulty

in understanding the question but, in our respectful

submission,it is unnecessary. If Your Honour

likes, I can take you through what was said in

RICHARDSON, although I am sure Your Honour has a good

recollection of what was said by Your Honour and the

other Justices of this Court in RICHARDSON on that

question of regional proportionality and how, indeed,

they all, in the end, in our respectful submission,

were posing the same test, though in slightly different

language.

Now, if they were posing the same test, then

there is no need for that question and we would, in

our respectful submission, for that reason, object to

that question and, of course, for the additional

reason that if in fact it is unnecessary not only
should it not go to the Court, but it is going

to further delay the trial of the factual question

on that second question.	So, so far as the special
case is concerned, from our part we cannot invite
Your Honour to do anything today.	We can simply

inform Your Honour about what has happened so far and

indicate to Your Honour that we will keep you informed

if we are able to agree upon a - - -

HER HONOUR:  Have you formulated precisely what it is that you

want remitted? You have not, at any stage, so far

as I know, put any matter as to the court to which

it should be remitted either. You may have and

I may have forgotten it, I am sorry.

MR DAVIES:  No. I am not sure that we did before Your Honour.

It may have been on a previous hearing, perhaps before

another Justice, but certainly on one occasion

we did in material and·· it is in Mr Dunphy' s first

affidavit, I think - express our preference for the

SlT2/7/HS	66	13/1/89
Queensland

Supreme Court of Queensland, rather than the Federal

Court, and at that time I think we gave some reasons

for that, one of which being that - perhaps I should

not say what the reasons are without - we did not say

in our affidavit which court we preferred. I withdraw

that, but what we did say - in our application we asked
that it be remitted to the Supreme Court of

Queensland; but what we did say was, in Mr Dunphy's

f i rs t a f f id av i t , that there w i 11 be in ex c es s o f 20 witnesses. With one exceptio~ they all live

and work either in Brisbane, North Queensland,

or overseas, and only six of those would be from

overseas.

We said that the case was being prepared using a

computer in Queensland and it would be difficult to

make proper use of this facility unless the trial

took place in Brisbane. That was the point I was

making, and we also mentioned the need for an

inspection. So those facts, of course, go rather to

a trial in Queensland than to a trial by the

Supreme Court of Queensland. The only other point

we really make, Your Honour, is the inquiries which

we made which - my learned friend does not accept

that, all right.	No doubt Your Honour will
disregard that.	Your Honour, I do not think there

is anything else that I can usefully add at this

stage, unless Your Honour wishes to hear me on

something specific.

HER HONOUR:  It was the first question, I suppose, that

I directed to you.

MR DAVIES:	As to precise formulation of the - - -
HER HONOUR:	Of what should be remitted.

(Continued on page 68)

SlT2/8/HS	67	13/1/89
Queensland

MR DAVIES: 

Yes, I can do that by reference to the

statement of claim. If Your Honour would
perhaps bear with me, I could do that because,

as I indicated earlier - I wonder if I could

do that while my learned friend is addressing,

to save some time.

HER HONOUR: Certainly.

MR GRIFFITH:	Your Honour, may I do things in reverse order because we ~ee that as the logical course
of this action?

As Your Honour knows, the matters were

repleaded in toto since it was last before Your Honour
before Christmas, and as a result of that

pleading, Your Honour, the issues were identified

much as foreshadowed but it was not possible to

derive a demurrer because it would have been a

demurrer arising from a traverse and that would

not have been a proper demurrer. So, it is necessary

to fall back to the issue of case ~tated.

On our analysis of the pleadings, Your Honour,

we see that there were three jurisdictional facts,

the existence of which is necessary to establish
the validity of the proclamation, which is the
first issue; second issue, validity of the

regulations. The property must firstly be

identified property in a State, that is

section 6(2) and section 3A(l) of the Act. Has

Your Honour have a copy of the WORLD HERITAGE

PROPERTIES CONSERVATION ACT? I think I gave

Your Honour a copy last time, but I can probably

give Your Honour yet another.

HER HONOUR:	Yes, I am sure I have.
MR GRIFFITH:	We always have one to give to Your Honour

on these occasions, so I hand up another. There

is no need for me to take Your Honour to the

section at the moment, because this really is

not an issue, Your Honour.

HER HONOUR:  Yes, it might be useful. Thank you very much.

MR GRIFFITH:  The second issue is whether the property is

one to which one of the subparagraphs of

section 6(2) applies, and in particular,

paragraphs (b) and (c).

The third issue is whether the property

is property in respect of which the Governor-General

is satisfied that it:

SIT3/l/JM	68	13/1/89
Queensland

is being or is likely to be damaged

or destroyed -

and that is a reference to section 6(3).

The pleadings, Your Honour, the statement

of claim, abandons any contention that the
property is not identified property, so that is

not an issue. The reply to amended defence

dated 4 January confirms that there is no

issue concerning tbe Governor-General's

satisfaction for the purposes of section 6(3),

so that is not an issue.

So the only issue, as we see it, regarding

the proclamation is Whether paragraphs (b) or (c),
or both, of section 6(2) apply to the property.

That is whether the property is property:

the protection or conservation of -

which -

is a matter of international obligation,

by reason of the Convention -

or -

is necessary or desirable for the purpose

of giving effe~t to -

the Convention et cetera.

Now, our principal argument, Your Honour, is

to rely on the first aspect, that it is a matter

of international obligation. So the short question

as we see it is whether the protection and

conservation of the property is a matter of

international obligation under the Convention.

Your Honour, there seems to us to be two

competing approaches to this, that Queensland seems

as a matter of fact that the property satisfies	to assert that the Court would need to be satisfied	the definition of natural and cultural heritage
and one can see, Your Honour, very much the
request for particulars. My learned friend's
complaints about the adequacy of particulars are directed to the issue as pleaded by the
plaintiff, namely that it seems to be asserted, Your Honour, that an issue of fact for the
determining tribunal is to establish whether as a matter of fact all the property, every one
of these 18 kilometres square grid, every square kilometre of each of those grids - there are
about 80 of the grids, Your Honour - satisfy
in all their parts the definition of "natural or cultural heritage".

69

SIT3/2/JM	13/1/89
Queensland

Our assertion, Your Honour, is that that is

not the relevant inquiry if one is considering

the validity of the proclamation. Our

submission is that the property is a subject of

international obligation once it has been

identified as forming part of the heritage by

Australia nominating the property. We say,

Your Honour, the obligation under Article 3 of

the Convention is for Australia to identify.

Once it identifies, Your Honour, then it has an

obligation to pro~ect and we say the obligation

arises no later than the time that it is

idenfitied.

Secondly, Your Honour, we refer to the

identification by the World Heritage Committee

by listing the property. The World Heritage

Committee is a body on whom the Convention confers

the task of establishing the list of properties,

Article 11(2), and that is a list of properties

which satisfy the listing criteria defined by

the Committee, Article 11(5). As foreshadowed,

Your Honour, my learned friend's pleading, his reply, picked up the operational guidelines and

they are proposed to be annexed to the form

of case that we propose.

Your Honour, if our contention is right,

we submit the need for an enormously detailed

and lengthy inquiry of fact by this Court, or

by a court on remitter is averted as to these
issues of validity of proclamation and it is

our contention, Your Honour, that the substantial

part of my learned friend's request for particulars

and complaint that the particulars are inadequate

refer to this, what we say, is unnecessary inquiry
of fact. We say, Your Honour, the volume of
particulars already provided demonstrate the
large burden, expense and administrative task
which would be involved in litigating these

issues to a determination, whatever was the

correct ultimate question of law to be decided.

We have sought to identify, Your Honour, in

our form of special case which has been

reconstituted following the repleading of the

matter, what, in our submission, Your Honour,

is sufficient to enable the question 1 to be

answered. My learned friend referred to our

paragraph 5, Your Honour - - -

HER HONOUR:	What have you gone to now, I am sorry?
MR GRIFFITH:	The special case, Your Honour, I am sorry -

our one, the thick one.

One can see, Your Honour, from the Queensland

version that paragraph 5(a) on the second page

SIT3/3/JM	70
Queensland

reproduces with the addition of the word "parts"

of in the second line of what appears at

paragraph 5(a),what one can see is just a

reference to the guidelines, Your Honour. Then

paragraph (b) of my learned friend's version

asserts a fact as to the activity of the

World Heritage Corrnnittee. Now, we deny that

that is a fact, Your Honour, but what we

propose in paragraph 3 of our draft is that

the course of procedure pursuant to the guidelines,

which are also to, be annexed to the special case,

should be replicated in the special case by

attaching the various documents of reports and

recommendation which led to the eventual listing

in December last year.

Just to run through that briefly, Your Honour,

these documents in paragraph 3 proposed to be

annexed are the original submission by Australia;

a report and recorrnnendation by the International

Union for Conservation of Nature and Natural

Resources, known as the IUCN, which made a

recorrnnendation to the Bureau of the World Heritage

Corrnnittee, that is one of the documents. This

was fallowed by a reconmendation by the Bureau to the World

Heritage Corrnnittee and a request to Australia
for clarification and further information. That

information was given in writing on 30 September

and all those documents are annexed. In October 1988

the IUCN provided another document, a technical

evaluation to the Corrnnittee. In due course,

Your Honour, at the twelfth session of the

Committee on 9 December 1988 the property was

listed.

Your Honou½ there is as yet only a draft

of the final report of those proceedings of the

World Heritage Corrnnittee and the relevant part

in respect of the listing of this property,

Your Honour, is dealt with very briefly on two pages - well, basically really one, Your Honour -

of the report, pages 18 and 19. It is dealt
with in one paragraph.	Now, as we understand

my learned friend's contention, Your Honour,
it would seem the proceedings reference,
in reference to this listing of the property,

the wet tropics of Queensland, occupied, so I

am told by those instructing my learned friend,

about one hour's debate, or time anyway, Your Honour,

and it is, as we understand it, thought by my

learned friend that he may be able to provide some

form of note as to what was said during that one

hour. At the moment, Your Honour, we do not have

any note of what was said. If there is produced

something that would be an accurate note of notes

taken by someone who was there, in principle,

we cannot see any objection, Your Honour, to

annexing that if my learned friend seeks to say that

SIT3/4/JM	71	13/1/89
Queensland

that is relevant to, presumably, make out what

he asserts is the assertion of fact in paragraph S(b)

of his draft. We have got no objection to the

primary materials.

We think, Your Honour, that the other

documents we refer to in our paragraph 3

with the one paragraph in the final report added

to it possibly, is all the primary materials and

that that is all that should be available to my

friend to make th~ assertion that he seeks to make

in paragraph S(b). Now, if he seeks to put in

what seems to be an accurate summary of that

hour's proceedings, well, we, in principle,

Your Honour, have no objection to that being added.

HER HONOUR:  You have to discuss that issue with him

further.

MR GRIFFITH:  We will have to discuss that, yes, Your Honour,

because my friend has not got a version - we

have not. So, we would see, Your Honour, that

with that outstanding issue the matters covered

in our paragraph 3 really are in a state of

substantial agreement and we see no reason

in principle that the outstanding matter my learned friend refers to cannot be resolved

between us, so that seems to be progress.

HER HONOUR:  The real issue in relation to the stated

case is your second question.

MR GRIFFITH:	Yes, that is so, Your Honour.
HER HONOUR:	What does it mean?
MR GRIFFITH:	Your Honour, we reviewed our situation

because of the repleading and my learned

friend is right to say that there was at

least an impression given last time that we

accepted there could be a possibility
of splitting the issue of validity of the

regulation and, Your Honour, that is how

it seemed to us to be at the time.

Your Honour, we have thought about this

a bit further and if I could give Your Honour

the advantage of our reflections, which are

now reflected in this amended special case,

that as now drafted there are this bundle of

documents Your Honour has to the case: the

nomination, the various reports of committees

and the guidelines for listing. It is our

submission, Your Honour, that only a limited

number of constitutional facts are

relevant to the issue of validity of the

regulations. Of course, the regulation-making

power under section 21 of the Act, Your Honour,

is, one would suppose, subject to an implicit

SIT3/5/JM	72	13/1/89
Queensland

limitation that although regulations obviously

may be made in conformity to an Act which has

already been held within power, invalid,

Your Honour, the regulations must have a

limitation in that they cannot by than.selves operate

beyond constitutional power so there must be

some confining aspect by reference to the reachof

the external affairs power. As we understand it,

Your Honour, my learned friend's second part of

his claim against us as to the validity of the

regulations is based on the assertion that the

regulations cannot, when one has regard to
what he says is all facts looked at as an

ultimate truth down to the last square kilometre of some 80 grids each including 325, or whatever

it is, square kilometres and 300 endangered species,
and one has to spot to the last metre where each

of those is. Your Honour, our assertion is that

that is not the relevant inquiry as to the issue

of the validity of the regulations. We submit,

Your Honou~ that this is an issue of constitutional fact and the approach as to matters of fact,

Your Honour is, we submit, one basically the Court

is not concerned with issues of fact as if they were

litigated inter partes between the parties but

is concerned with the issue of informing itself

as it best can and as far as needs be as to

relevant matters sufficient to determine the

issue.

HER HONOUR:	What does "ex facie" mean in this context?
MR GRIFFITH:	Your Honour, it means on the basis of the information comprised in this bundle.
HER HONOUR:	You have to then go to the point of saying

that is the only information that could be

relevant to the question of validity.

MR GRIFFITH:  Or Your Honour, absence an allegation of

mala.fides, or something of the sort, if

that was relevant.

HER HONOUR:	Yes.
MR GRIFFITH:	We would submit, Your Honour, that this

material is enough to dictate the answer

that the regulations must be regarded as

within power and therefore that no further

inquiry is relevant.

HER HONOUR:  It may be enough if it is uncontested, but

can it be said to be the only information relevant?

I mean, I suppose what we really have to do is

find out what the question is and that, I think,

may have - - -

SIT3/6/JM	73	13/1/89
Queensland

MR GRIFFITH:  Yes. Your Honour, we could put it another way,

that as we read the pleading we understand

the contention is made that the executive,

or the legislature, depending on how one regards

the regulations as being rm.de, could not reasonably
regard these regulations as being adapted,

or whatever the expression - - -

HER HONOUR:	Adapted to what?
MR GRIFFITH:	To discharging the obligation under the

Act, Your Honour.

HER HONOUR: Is that said with sufficient precision

as adpated to the protection or conservation

of the area?

MR GRIFFITH:	Your Honour, one, of course, cannot define the test with precision because of the various
ways in which it has been expressed.
HER HONOUR:	I know, and unless you can you cannot say

what information will determine the answer,

can you?

MR GRIFFITH:  Your Honour, we submit that one can, because

we submit, Your Honour, that one must say

on the basis of this information, which is,

we say, Your Honour, fact before the Court,

that whatever the relevant test is - and I will

not spell out the very differences of

expression - the answer is dictated one way,

that one must be able to say that.

Could I take Your Honour to the regulations?

We did not have a copy of them last time, this

time we do.

HER HONOUR:  Yes, thank you.

MR GRIFFITH:  Your Honour, my learned friend refers to requests about endangered species and all sorts

of other things, but so far as the regulations
are concerned, Your Honour, they are directed

only to two matters and one finds them,

Your Honour, in the last bundle of documents

annexed to our stated case, that is the one

with the bulldog clip.

HER HONOUR:  Yes, I will find it where?

MR GRIFFITH:  In the last bundle, Your Honour. One has

the proclamation, which has a lot of descriptions
of metes and bounds and then, I hope, Your Honour,

in the middle of that, after the first lots of

descriptions, one has, "World Heritage Properties

Conservation Regulations Amendment" in the middle

of that bundle. Statutory rule number 389 of 1988.

SIT3/7/JM	74	13/1/89
Queensland

HER HONOUR:  I have not found any of them yet.

MR GRIFFITH: If Your Honour takes off the bulldog

clip - here is a spare, Your Honour.	So
that is there.

HER HONOUR:	Thank you. Yes.
MR GRIFFITH:	Your Honour, to put ~he matter

simply, there are two sets of prescribed acts,

which then fit in~ of course, with the operation
of the provisions of the Act that one has

conduct which is proscribed and then one has

provisions for minister's consent by reference

to criteria.

Your Honour, regulation 3B which is

introduced provides prescribed acts limited

to forestry operations, which means:

commercial exploitation of forestry

resources, other than operations

involving:

(a) the traditional exploitation of

forestry resources by Aboriginal people; or

(b) the exploitation of forestry resources
by Aboriginal people for their own use.

Then there is a definition of "acts" which are prescribed, which are basically in the form of

killing, cutting down and damaging trees for

such purposes and constructing and establishing
roads and carrying out excavation works.

So, Your Honour, that is a limitation limited to forestry operations. It is not

something that is dealing with protecting

endangered species sitting out in a clear

area or anything like that. The other prescribed acts, Your Honour,

deal with the construction of roads in certain

parishes, so that it is not the whole area,

it is a limited part.

MR DAVIES:  We are not challenging that.

MR GRIFFITH: Well, Your Honour, we are only concerned

with regulation 3B then, the one about

forestry operations. That is the issue,

Your Honour. We would submit that when one

goes to RICHARDSON one can see there, Your Honour,

that, looking at the various of the judgments - - -

HER HONOUR:  If we are only concerned with forestry

operations - - -

SIT3/8/JM	75	13/1/89
Queensland

MR GRIFFITH: Yes.

HER HONOUR: If I could interrupt, that may have some

bearing upon the scope of the particulars.

MR GRIFFITH:  Of course, Your Honour, and our basic

submission is that this issue of particulars is

a false inquiry. These onerous requests and

assertions -

HER HONOUR:  They were made'in the context of different

pleadings.

MR GRIFFITH: Yes, they were, Your Honour, and if the

issue is confined now to forestry we - perhaps I

should - well, my learned friend says,

it has always been confined to forestry. Well,

Your Honour, we regard this issue of particulars

as so onerous that we have split our case

and my learned frien~ Mr Black, has had control

of the particulars aspect and was intending to

make submissions to Your Honour in respect of

that. But, Your Honour, our position is that

it is a completely separate issue. As we see

it, it is not related to the issues of validity

as presently pleaded, but the reason why,

Your Honour, we are here to make some issue - - -

HER HONOUR:  But it is a proscription of forestry operations

throughout the entire area?

MR GRIFFITH: Yes, commercial forestry operations, yes.

HER HONOUR: Well, yes.

MR GRIFFITH: That is so, Your Honour. So that that is

the limitation of the proscription.

HER HONOUR:  And what, the commercial - - -

MR GRIFFITH: Exploitation.

HER HONOUR: It imports some limitation?
MR GRIFFITH:	Your Honour, if it is not commercial,

then the proscription will not apply.	Remember,
one of the issues in - - -

HER HONOUR:  I am just having trouble with 3C(2). Does

that tie back to the commercial?

MR GRIFFITH:  I think it ties back the forestry operations, yes,

Your Honour.

3C(l) In this regulation:

'forestry operations' means operations for

the commercial exploitation of forestry

resources -

SIT3/9/JM	76	13/1/89
Queensland

and then sub (2) says:

for the purposes of or in the course of
carrying out forestry operations.

That is as so defined, Your Honour, being commercial exploitation. Remember, Your Honour,

in RICHARDSON one of the issues was: well, what

about some of these landholders who might want

to cut down something?

HER HONOUR:  Yes.

MR GRIFFITH: This regulation, on its face, would cover

them, Your Honour. It covers commercial

exploitation, so that it looks like it anticipates

that issue, Your Honour. It is commercial and

as we understand it, Your Honour, that is the

real issue in this case as to whether or not

commercial exploitation of forestry resources

is to be subject to this proscription subject
to ministerial consent throughout the entire area.

I think that is the basic issue in the case, is

it not?

MR DAVIES:  Yes, it is.

MR GRIFFITH: That is the basic issue in the case,

Your Honour and, I think, there is a sub-issue,

that it would seem that there is no issue that

it should be proscribed in some areas but there
is an issue whether it should be proscribed in

others but that has not emerged in the pleadings

or the documents before the Court.

Your Honour, we then look at the regulation

and say that that is the regulation 3C that is

being challenged. Your Honour, we also then

look at this Court's attitude as to how matters

of constitutional fact are to be established.

Can I take Your Honour briefly to what was said,

particularly by Justice Brennan in GERHARDY V BROWN,

159 CLR 70, and in particular, Your Honour, the

judgment of Justice Brennan at page 142, near

the top. His Honour is there making the point

that:

The validity and scope of a law cannot be

made to depend on the course of private

litigation.

In essence we say this is private litigation

for the purpose, Your Honour:

The legislative will is not surrendered into

the hands of the litigants. When the validity

of a State law is attacked under s. 109

of the CONSTITUTION and the scope of the

SIT3/10/JM	77	13/1/89
Queensland

Cormnonwealth law with which it is thought

to be inconsistent depends on matters of

fact (which I shall call the statutory
facts) the function of a coutt is analogous

to its function in determining the

constitutional validity of a law whose

validity depends on matters of fact.

In BREEN V SNE'DDON Dixon CJ said, pointing

to the distinction between constitutional

facts and facts in issue between the parties -

"It is the distinction between, on the

one hand, ordinary questions of fact which

arise between the parties because one

asserts and the other denies that events

have occurred bringing one of them within

some criterion of liability or excuse set

up by the law and, on the other hand, matters

of fact upon which under our peculiar federal
system the constitutional validity of some
general law may depend. Matters of the
latter description cannot and do not form

issues between parties to be tried like the

formal questions. They simply involve

information which the Court should have in

order to judge properly the validity of

this or that statute or of this or that

application by the Executive Government of

State or Cormnonwealth of some power or

authority it asserts."

Earlier, in. COMMONWEALTH FREIGHTERS PTY LTD

V SNEDDON, His Honour had observed that

"if a criterion of constitutional validity

consists in matter of fact, the fact must

be ascertained by the court as best it can,

when the court is called upon to pronounce

upon validity". The court may, of course,

invite and receive assistance from the parties

to ascertain the statutory facts, but it is

authoritative, and perhaps the parties should	Perhaps those sources should be public or free also to inform itself from other sources.
be at liberty to supplement or controvert
any factual material onvtiich the court may propose to rely, but these matters of procedure can await consideration on another
day. The court must ascertain the statutory
facts "as best it can" and it is difficult
and undesirable to impose an a priori restraint
on the performance of that duty.

In the present case, although no evidence

was tendered by either party as to the

statutory facts, the Working Party Report

and the Ministerial speeches -

SIT3/ll/JM	13/1/89
Queensland

et cetera, Your Honour, and His Honour

goes on.

Chief Justice Gibbs, at page 87,made

the same point. He refers there to BREEN V SNEDDON

and also, Your Honour, to COMMONWEALTH FREIGHTERS

PTY LTD.	About three-quarters of the page down
he said:

In BREEN V SNEEDON Dixon CJ pointed out

the distinctibn between ordinary questions

of fact which arise between parties

because one asserts and the other denies

that events have occurred bringing one of them within some criterimof liability or

excuse set up by the law and, on the other

hand, matters of fact upon which the

constitutional validity of some general law

may depend. He said the matters of the

latter description cannot and do not form

issues between parties to be tried like
the former questions but simply involve
information which the Court should have in

order to judge properly of the validity of the

statute.

He then recites also the statement of

Chief Justice Dixon in COMMONWEALTH FREIGHTERS

and at the top of page 88 the Chief Justice

says:

That statement is, in my opinion, applicable

to the present case and we must determine

as best we can the facts which will enable

us to answer the question -

Now, Your Honour, we, of course, here, do not

say it should just be left for the Court to have

the bare pleadings, but what we do propose,

Your Honour, is that the special case which we

submit should be stated by Your Honour to the

Full Bench, if it has the documents which we

have annexed to the draft which we have given

Your Honour, in our submission, Your Honour -

HER HONOUR:  But what that assumes, does it not, is

to the ultimate factual determination?

that there is no other matter which the State of relevant

MR GRIFFITH:  Which, if established, could lead to a

contrary result, yes, that is so, Your Honour.

HER HONOUR:  So we are not talking about whether it

does, but whether it could?

MR GRIFFITH: If established.

SIT3/12/JM	79	13/1/89
Queensland

HER HONOUR:  Yes.

MR GRIFFITH: Yes, Your Honour. Well, what we say

is that the facts here are sufficient in

themselves to establish that the answer to
the question must be that regulation is

valid and there is no other fact - - -

HER HONOUR:  You have got to go to another plane.

You have got to say there is no other fact which,if established, could - - -

MR GRIFFITH: That is how we put it, Your Honour.

HER HONOUR:  That is a very interesting proposition

as a matter of logic.

MR GRIFFITH: Yes. Well, Your Honour, we tie it to the

regulation which says"a controlled commercial

exploitation of forestry~

HER HONOUR:	Yes.
MR GRIFFITH:	And we say, Your Honour, given the description

of the area that one picks up and its natural

qualities - - -

HER HONOUR:  What if the State of Queensland said,

"There is a settled district in this area"- I

do not know whether there is or there is not -

'which contains a sawmill which is adjacent to

a main road on the boundary of the property

and in which there are already stores of

felled timber and we wish to have the felled

timber sawed and removed from the property."?

(Continued on page 81)

SIT3/13/JM	80	13/1/89
Queensland

MR GRIFFITH: Well, Your Honour, as to the issue of the validity

of the regulations ?

HER HONOUR:  Could not the State of Queensland say, "wish to

assert'? I mean, I appreciate that the redefinition

of the issues may bear very much upon the scope of
the inquiry and the relevance of particulars hitherto

in issue but, can we force the State of Queensland

to say ''r here is no fact other than those set up in

the documents annexed to the Commonwealth stated case

which, if established, could bear on the validity of

a total of the totat proscription.'?

MR GRIFFITH: Well, Your Honour, we would submit to Your Honour

that the plaintiff's allegation here is relevant to

the issue of whether there is a reasonable basis for

making the regulation. That is, we would submit, the - - -

HER HONOUR:  Is not the question ultimately whether the total

proscription of commercial forestry operations - we

will use that as a compendium phrase.

MR GRIFFITH: 

Is capable of being reasonably regarded.

reasonably regarded as appropriate and adapted and
again, let us say, to the protection and conservation
of the property.

HER HONOUR: 

Yes, within the entire area is capable of being

MR GRIFFITH: 

What we say, Your Honour, is that formulating a

question in this way on this material enables Queensland to say, in its argument, if one likes that, by reference

to Your Honour's example, it cannot be. That can be asserted in argument, Your Honour. Now, our answer

to that would be, Your Honour, firstly, th~re may be

an issue as to whether the regulation appl:.. .::s .

Perhap~ on one view, Your Honour, one would say that

arguably that is commercial exploitation if you have a

stock of sawn logs in a sawmill within the area. But,

of course, Your Honour, one has the provision for

ministerial consent which is confined to matters

referable to protecting the world heritage values

and one would expect as of course, Your Honour, that

such consent must be torthcoming in that situation or, if not,

it is amenable to a review and it would be held to be
an incorrect decision.

Now, in that regime, _Your Honour, we would assert that, taking that example, the regulation must be

regarded as reasonably made or reasonably adapted. But

that is a matter which - all those hypotheses can be put in

argument, one does not need to have evidence about

them. They can all be assumed in argument, all of them,

and the question is none the less, is this a reasonable

method of - there is no need to rehearse the various

ways but we say, Your Honour, the provisions are a

means to effectuate the desired end, to ensure

proection, and that is sufficient for validity. That

is the end of it, in our submission. That all this

SlT4/l/VH	81	13/1/89
Queensland

proposed inquiry and my learned friend talking about
completely exhaustive statements by us on pain of

having our mere denial and a defence struck out, are

all not relevant to the issue of validity. That is

our basic submission. So ex facie, Your Honour has

the content on this material and accepting the

possibility that the defendants can put up all these

examples whether fanciful of not. We say validity

can be determined by the Court without the fact -

HER HONOUR:	But you must. say, "it must be determined."
MR GRIFFITH:	It must be, must be. Yes, must be, Your Honour.

We say that on this material and accepting possibilities

of argument and even a list of 30 allegations that"this

may be the fact, they may be the facts;' we say

whatever that list, none the less the answer for

validity is dictated.	Your Honour, it is a very high
threshold for invalidity.	One must say that the

regulations must be regarded as not reasonably capable

of being regarded.

HER HONOUR:	Yes.
MR GRIFFITH:	It is a very high one and, as Your Honour can see,

this regulatio~ on its face, does not suffer the defects

which made it a problem area in RICHARDSON. Now, the

basic issue, Your Honour, _is ,;.;beth.er a total prohibition

subject to ministerial consent of forestry throughout

the whole area is reasonable having regard to the fact

that it is a very large area.

HER HONOUR:  But Queensland may rely on something more than the

size of the area.

MR GRIFFITH: Well, Your Honour, they can do that in argument,

in our submission.

HER HONOUR:  But you say no matter what Queensland could point

to - - -

MR GRIFFITH: Yes, the regulation is valid. Well, my learned

friend reminds me, Your Honour, that R:ICHAR.DSON really
supports that conclusion - the regulation.	Of course,

there was some evidence there, Your Honour, as

summarized in the Chief Justice's interlocutory

judgment.

HER HONOUR:	Yes, which the parties agreed could be accepted and, as I recollect, Mr Solicitor, in respect of which
you said, "And if the Court is not satisfied on it, remit it somewhere to have the facts ascertained." But
I dare say your position has changed since then but I - - -

MR GRIFFITH:  Yes, Your Honour. I accept Justice Deane's point,

Your Honour, that - he says, "Well,there is gap because

there is no information about private land holdings,"

but none the less, Your Honour, the endresult in

R!Cl-IARDSON - the regulation was upheld ex facie.

S1T4/2/VH	82	13/1/89
Queensland

HER HONOUR:	Yes.
MR GRIFFITH:	Your Honour, we would admit that one could approach

it the other way and have an exhaustive finding of

facts of which we would say 99 per cent of the issues,

those particularly refer:l:'ed to: by my learned friend in

his request for particulars and .....

are totally irrelevant to validity. Now, Your Honour,

one can see already the enormous inquiry even to produce

some material anterior to trial. But, Your Honour, I

suppose subsumed in ,this question is an issue which

could perhaps pick up some of the problems that

Your Honour obviously had in R~ICHARDSON , and

Justice Deane, that if one was not of the view that

the regulation must be valid on this material,

whatever was said against it, well then,Your Honour

subsumed, one would expect, would be the sort of thing that Your Honour referred to in your judgment, or Justice Deane, an indication as to what sort of

inquiry of fact is relevant.

Now, we would say, Your Honour, it must be that

the sort of inquiry of fact embraced by the plaintiffs'

request for particulars ex facie is not the relevant

inquiry of fact. Say, to pick up a RICHARDSON

example, the inquiry of fact for Justice Deane might be as to what is the nature of private land holding?

How would this regulation affect them? Similarly,

one could discern from Your Honour's judgment a view.

Now, Your Honour, our submission is

one must have regard to the realities of this litigation.

We are talking about perhaps a course of inquiry to

go through all these facts as broad abstract facts that

could go for two or three or four years if all this

proceeds to evidence.

Your Honour, our submission is that it is, when

one seeks to tie it back to the pleadings,

really demonstrable that very little of - - -

HER HONOUR:	Well, I have not been taken to the new pleadings.
MR GRIFFITH:	_No.	fut, Your~. basically - and.nnst say I had _no1; turned

my IIlllld that we were limited to this one regu].atioe, but the 'Whole

case really is about the validity or this one

regulation; because if the proclamation falls,well then,
the regulation falls. If the proclamation does not

fall, well then, you have the separate issue of the

regulations. That is what the case is about: whether

there is to be a prohibiton on forestry operations.

Now, Your Honour, so far as this issue is concerned, as to

the proposed second question, we would suppose that it

could be argued in perhaps two hours, perhaps one hour;

it is quite a small point.

HER HONOUR:  It is a very strange question to be - - -

MR GRIFFITH: Well, Your Honour, it is a very important question.

S1T4/3/VH	83	13/1/89
Queensland

HER HONOUR: - - - to be formulated, though. I mean, it is

formulated in a very peculiar manner.

MR GRIFFITH: Well, it could be formulated in another way,

Your Honour - is that on the basis of the material

annexed to this case, are the regulations valid or - - -

HER HONOUR:  You could ask, "Are the regulations invalid?"

on the basis of this materiaL

MR GRIFFITH:  Perhaps that woul<;l be the way. Yes, I appreciate

Your Honour's point, yes. One could also add - - -

HER HONOUR:  But that does not solve the problem unless the

asking of the question in that way constitutes an issue

estoppel.

MR GRIFFITH: Yrur Honour, we would wish to have it in a way that did.

HER HONOUR:  Yes, well,Queensland, I think, very much wishes

the other.

MR GRIFFITH: Well, Your Honour, we had better leave it, "Are

the regul;:itions valid?" because then it would.

HER HONOUR:	Yes.
MR GRIFFITH:	Now, Your Honour, if it were thought by, say, a

majority of the Court, chat there was some relevant

matter of fact not included here which was determinative

of validity - - -

HER HONOUR:	Which could - - -
MR GRIFFITH:	Which could be determinative, Your Honour, Well,

we are quite happy to have the question either amended to say, "or is any and what inquiry of fact relevant?"

Anyway, that is subsumed in the question but we take

the high ground on this and say that whatever is put

against it, external of this material, as a matter of
constitutional law on this issue, validity is dictated.

That is our assertion in respect of it.

HER HONOUR: Well, I suppose, do you call in aid a presumption?

MR GRIFFITH: Well, whilst this case goes on we do because we

would say the regulation is there and operates

according to its terms. There is an ultimate onus in

this in that the plaintiff has to show that it is

invalid.

HER HONOUR:  I am about to ask that next, yes.

MR GRIFFITH: Well, there must be, of course, Your Honour,

however the issue is put to the Court. The plaintiff

has to establish with, we say, four of the seven

Judges, Your Honour, that there is invalidity. That is the pursuit, in our submission.

S1T4/4/VH	84	13/1/89
Queensland

HER HONOUR:  And the plaintiff says, "And to do that, I want to

call evidence."

MR GRIFFITH: Well, Your Honour, we say as a matter of

constitutional law - - -

HER HONOUR:	He cannot.
MR GRIFFITH:	- - -these facts as pleaded are irrelevant and

that is why, Your Honour, I foreshadowed last time

one way to get to - - -

HER HONOUR:	The facts as pleaded, yes.
MR GRIFFITH:	And as requested, Your Honour.

HER HONOUR:  Well, you can leave aside the facts as requested for the moment. What irrelevant facts are pleaded?

MR GRIFFITH: Well, Your Honour, what is pleaded basically on

this issue of validity of regulation is that no

legislature or no executive, however one puts it to

Your Honour, could -

HER HONOUR:	Could you take me to it?
MR GRIFFITH:	I think it is paragraph 19 of the statement of claim, Your Honour.

HER HONOUR: This is the amended

MR GRIFFITH:  Yes. Your Honour, basically the pleading pleads

with respect to the whole of the property or alternatively -

HER HONOUR:  I am sorry, I missed that.

MR GRIFFITH: Basically, the pleading pleads in respect of

whole of the property or part of the property in the

alternative and then as to both the issue of validity

of proclamation andivalidity of the regulation there

is a pleading which, in its first version, is that

absolutely the area is not, for example, world heritage

or that the regulation is not necessary. Then in

the alternative there is the pleading and we say,

Your Honour, that is obviously the relevant one, that

it is:

not capable of being reasonably considered.

So that is -	has	Your Honour the amended statement
of claim?

HER HONOUR:  I have got a further amended statement of claim of

20 December. That is the one?

MR GRIFFITH: Yes, that is it, Your Honour. Yes, second last page -

really, the third last page, paragraph 19.

85

S1T4/5/VH	13/1/89
Queensland
HER HONOUR:	Yes. Well, you can move to strike that out if you

wish.

MR GRIFFITH: Well, that is what I was just saying, Your Honour.

HER HONOUR:	That may clarify the issue.
MR GRIFFITH:	Yes, Your Honour, but, of course, it is all very

well to say, "GERHARDY says the Court has to find the

facts as best it can." Now, the Court is entitled to

expect some assistance from the parties and we say

that the documents we annexed to our draft form that

assistance.

HER HONOUR: Well, I am sorry, perhaps we are at cross-purposes.

Within section 19 there is this issue, is there not, amongst others: whether or not the matter to which

the proscription must be reasonably capable of being

viewed as appropriate or adapted - and I think we

have a Churchillian prepositional problem with that -

is that last part of that paragraph. Put it like this -

could I come back to it in this way? Although there has been a marked unwillingness in these proceedings

to grapple with the different formulations of

"reasonably capable of being appropriate and adapted"

in RICHARDSON, the differences may or they may not bear

on the identification of the object to which they must

be regarded as appropriate or adapted.

MR GRIFFITH:	Yes.
HER HONOUR:	Do you follow what I am saying?
MR GRIFFITH:	Yes.
HER HONOUR:	And until that matter is either agreed or determined

in some way, then the question of what is being referred

may be unduly at large. As I understand what you have.

been saying is this: the question is not whether or

not it is capable of being appropriate or adapted to
what have you:

·

of such part of the property is '~atural

heritage" as so defined or "cultural
heritage" as so defined.

Now, if the question is not the adaptation to the preservation, we will say, of the heritage as so defined but to the property, then the scope of inquiry,

factual inquiry, is very different. Now, I apprehend

that implicit in what you are saying is that we do not

have to look to the natural heritage as so defined or

any part of it or all parts of it, and so on. Have I

just succeeded in confusing things?

MR GRIFFITH:  Your Honour, our basic position is that the

question of validity, having regard to all possibilities,

whether they later be established as fact or not, is

foreclosed.

S1T4/6/VH	86	13/1/89
Queensland

HER HONOUR:	But why?
MR GRIFFITH:	Your Honour, because we say that, when one,,on

this material - - -

HER HONOUR:  But it cannot be the material that forecloses it,it

must be the scope of the relevant inquiry that

forecloses it.

MR GRIFFITH:  Could I approach this issue in another way? We,

in fact, Your Honou~, started off with this when we

first proposed the draft case, in that, as we said,

what we are debating now is the question of whether

validity is dependent upon any inquiry of fact and,

if so, what is the relevant inquiry of fact. Now,

our basic position is, and we regard my learned
friend's affidavit material and our responding material
showing the enormous nature of a general inquiry on
all issues as to anything that is relied upon for
the listing process, as indicating that wherever it
is to bedetermined, the first thing to be determined
on the issue of validity of the regulation is what

is the relevant inquiry?

HER HONOUR:	Yes.
MR GRIFFITH:	And then secondly, to say, well, in what respect

should particulars be given, even if they have been

requested.

HER HONOUR: Well, what is the relevant inquiry?

MR GRIFFITH:	Because the request for particulars then could only relate to what is a relevant inquiry and the
response should be confined as well.

HER HONOUR: Well, what do you say is the relevant inquiry?

MR GRIFFITH: Well, Your Honour, we say that the relevant

inqui~y of fact is one which is limited to matters

pertaining to the issue that the regulation	,
is not capable of being reasonably considered.
Now -	·

HER HONOUR:	As what?
MR GRIFFITH:	As appropriate and adapted.
HER HONOUR:	To what? "Appropriate and adapted" are always

followed by a "to". To what?

MR GRIFFITH: Yes. Well, Your Honour, so far as the validity of

the regulation is concerned, to carrying out the

ob-li~ations under the Act.

S1T4/7/VH	13/1/89
Queensland	87
HER HONOUR:	Yes.

MR GRIFFITH: That threads through to the Convention as I have

indicated, Your Honour, because the regulation cannot

support something beyond power. But the Act itself is valid.

HER HONOUR:  Yes, well, you do not accept that the question is

whether it is reasonably appropriate and adapted to

the protection of the property.

MR GRIFFITH:  YEs. We say, Your Honour, reasonably -

HER HONOUR:  Or -you see, Mr Davies ha$ put it - - -

MR GRIFFITH: Well, he has not put it yet, has he?

HER HONOUR:  He has not put it that way. You see, he says it

must be:

reasonably ..... appropriate and adapted to .....

such part of the property as is "natural heritage" .....

or "cultural heritage".

You see, he has put it - if you accept that that is the

question, which you seem to have done by - which I

assume you have done by your pleading, then what

could possibly be relevant to that inquiry is very

different from what could possibly be relevant to

the inquiry you are postulating.

MR GRIFFITH: Well, could I answer, I hope, clearly, Your Honour's

question-is that we say that the control on the
operation of the regulation which otherwise, the Act

being valid, the regulation would be regarded as valid

if it is merely regarded as something related to the

operation of the Act. Your Honour, we say the

qualification arises from Article 5 of the Convention

because, once the property is listed, Your Honour, the

obligation in Article 5 is"to ensure that effuctive and

active measures are taken for the protection,

conservation and presentation 11 of the heritage.	And,
endeavour, in so far as possible and as appropriate,	in particular paragraph (d) where we are obliged "to
to take the appropriate legal, scientific, technical,
administrative and financial measures necessary for the identification, protection, conservation,
presentation, rehabilitation of thi;s heritage."

NQw, we say, Your Honour, that is the inquiry,

as to whether or not the regulation can be said to

be beyond constitutional power because it is not

regarded as"appropriate and adapted"et cetera to

discharge the Convention obligation.	So we say that is
the obligation.

HER HONOUR:	Are there not two steps?
MR GRIFFITH:	Yes, Your Honour, there probably are, but we say

that it is appropriate for this Court to take the two

steps and give the answer.

S1T4/8/VH	88	13/1/89
Queensland

HER HONOUR:	Yes.
MR GRIFFITH:	And we would say, also, Your Honour, that on no

view should the matter be allowed to go off in globo,

SO the i S SU e S - - -

HER HONOUR:	Well, that depends how it is pleaded.
MR GRIFFITH:	Yes.
HER HONOUR:	What goes off is•what is pleaded.

MR GRIFFITH: Yes. Well, Your Honour, we would submit that

nothing should go off until we have an answer to the

question of what is a relevant inquiry, because that

is determinative.

HER HONOUR:  Well, I think that Mr Davies was going to formulate

a question and perhaps, having done that, we may - - -

MR GRIFFITH: If we get a question, our submission will be that

this Court should answer it.

HER HONOUR:  Well, he was going to formulate what should be

remitted.

MR GRIFFITH: Yes, we11, that is a different - - -

HER HONOUR:  Yes, but that, presumably, will state what

Mr Davies says is the relevant inquiry.

MR GRIFFITH:  We hope so, Your Honour, but, you know, our basic

position will be that there is no point in sending off

to a single Judge.

HER HONOUR:  You see, the, relevant inquiry for the validity

of the regulations is pinned back, is it not, to

section 6? If section 6 - could I just go to it?

Perhaps I can - - -

MR GRIFFITH: Section 6 and constitutional power, Your Honour.
HER HONOUR:	If you would pardon me while I find my copy of the Act.

Section 21 is the regulation-making power.

MR GRIFFITH: Yes. Now, we say, Your Honour, absent issues of

constitutional validity, there could be no issue

about the validity of the regulation, that it is

within power under the Act; the Act is valid.

HER HONOUR:	Yes.
MR GRIFFITH:	So it is a question of whether it goes further than

constitutional power.

HER HONOUR:  What the Act says in section 6 is property which is:

a matter of international obligation

SlT4/9/VH	89	13/1/89
Queensland

or -

is necessary or desirable for the purpose

of giving effect to a treaty.

MR GRIFFITH:	Yes.
HER HONOUR:	Now, do those requirements limit, in your submission,

the ambit of the inquiry?

MR GRIFFITH: Well, of course; Your Honour, that is the inquiry,

in our submission. So long as one can say it

can be reasonably so regarded, we say that is the end

of it and that is the inquiry.

HER HONOUR: Those - 6(2)(b) and (c) are not challenged.

MR GRIFFITH:  No, they are valid, Your Honour. The whole Act

has been held valid - parts.

HER HONOUR:  Yes.

MR GRIFFITH:  It is not challenged in this proceeding.

Now, Your Honour, I think our basic approach is that

we would desire the Full Court of this Court to state

authoritatively what the test for validity is of the

regulation and we make the point that on our

proposition, when that test is stated, we say that, as

we put it, ex facie, only one answer can be given,

whatever - - -

HER HONOUR:  How were you going to get this Court to answer that

question? You will have to raise it.

MR GRIFFITH:  We sought to raise it by our proposed questiqn 2. We

see that issue as subsumed in it.

HER HONOUR: Well, I would have thought that was quite different.

Mr Solicitor, I would have assessed question 2 in the

context of the pleadings.

MR GRIFFITH: Well then, could we make it quite clear,

Your Honour, by saying that what we say the Court - - -

HER HONOUR:  And I would not have thought that it really spelt

out a necessity to determine. I mean, somebody has

got to assert one way or the other what is said to

be the relevant inquiry, I shouldhave thought.

MR GRIFFITH:  Yes. Your Honour, whether it is asserted

specifically in the pleading, our submission is that

it is necessary for it to be authoritatively stated

before there is any inquiry of fact. We say there

cannot be an inquiry of fact until one has determined

what one is inquiring into. Our second proposition

is that it is pointless to remit a matter to ask a

single Judge to decide what is the relevant inquiry of

SlT4/10/VH	90	13/1/89
Queensland

fact because that really goes to the essence of all

the issues between the parties and is the matter

authoritatively tobe determined by this Court, in

oursubmission. Your Honour, one can see already

foreshadowed by the affidavit material challenging

the particulars the morass that the whole litigation

would fall into if one does not determine this issue.

(Continued on page 92)

S1T4/11/VH	91	13/1/89
Queensland

HER HONOUR:  Yes, but you still do not tell me how.

MR GRIFFITH: Well, Your Honour, if Your Honour finds my

question 2 not satisfactory, well, we can express

it more directly.

HER HONOUR: Well, let me go back to paragraph 19 of the

amended statement of defence. What answer do you

make to that, if you would tell m~ and I confess

I have not looked.at the new pleadings in -

MR GRIFFITH:  Your Honour, basically.to paragraph 19, we deny

the allegation.

HER HONOUR:  Yes, well, that is the -

MR GRIFFITH:  Well, Your Honour, one problem about pleadings

in constitutional cases is that th~ ~bligation pl~aded

is to plead relevant facts, not law. Now, in

constitutional cases that gets a bit difficult because

you plead nothing if that is the case.

HER HONOUR:	But, I mean, in practical terms, does not your submission take you to the point where you say it
is irrelevant whether it is appropriate and adapted
to the protection et cetera, of so much of the property as is natural heritage? You see, what
that pleading is asserting is, in a sense, that
there are only parts of the property that are
capable of being regarded as the heritage, and you
may agree with that.
MR GRIFFITH:	No, well, we regard that as a concession in a way, Your Honour, that the part is conceded but we
say it all is.  The pleading concedes part.

HER HONOUR: Well, if you simply deny that, it seems to me

then there is, on your view, set up what you say is

a false issue.

MR GRIFFITH: Well, Your Honour, that was intended because

this pleading is an alternative pleading.	The first
one is that the whole of it - -

HER HONOUR: 

But you say this is the pleading that relates to

the matter that is the subject of the application
for remitter.

MR GRIFFITH: Perhaps I said that in a shorthand form, Your Honour.

The pleading which we desire to make subject to the

question is the second half of the statement of claim
dealing with validity of the regulation and our

question 6 to resolve that issue completely.

Your Honour, I refer to 19 because that seems to

encapsulate the point that is made.

HER HONOUR: Well, I confess I have not had any regard to the

pleadings to date, to the new pleadings.

S1T5/l/SH 92 13/1/89

Queensland

MR GRIFFITH:	Yes.
HER HONOUR:	But, if that pleading stands, then I would think

Mr Davies is entitled to say, 'if I can show that'' -

well, he is entitled to call evidence designed to

show that commercial forestry operations could be

carried on without impeding on those parts of the heritage contained in the property and that he is entitled further, as a preliminary thereto, to

engage to say, "and I want to call evidence to show

that only this, this and this" or, rather to show
that this, this and this "a.re not part of the

heritage as defined in the Convention."

MR GRIFFITH: Well, Your Honour, our submission is that that

second issue would be foreclosed by the determination

of the first question.

HER HONOUR:  No. Mr Solicitor, I think you - I am sorry, I

think these pleadings need studying.

MR GRIFFITH:  Yes, well, I think we agree with Your Honour

about that.

HER HONOUR:  And the pleadings must determine- assuming something

is to be remitted, or some question is to be asked of

this Court before any consideration is given to

remitter, the pleadings set the metes and bounds.

MR GRIFFITH: Well, Your Honour makes me think perhaps we should seek leave to amend our pleading to plead specifically

that the inquiry is by reference to the Convention

obligation.

HER HONOUR: Well, I think somewhere that issue has got to be

articulated.

MR GRIFFITH:  Yes, well, we are attempting to do it, Your Honour, by using the case stated mechanism.

HER HONOUR:  Yes, but - - -

MR GRIFFITH:  It is not all that often in constitutional cases

one has regard to the pleadings, Your Honour.	One
usually goes to the issue but - - -

HER HONOUR: Well, we are having great difficulty finding out

precisely what that issue is.

MR GRIFFITH:  Yes, well, Your Honour, we submit - it is not

clear in our pleading, Your Honour but, so far as

the pleading by the plaintiffs that one cannot say the prohibition on a commercial forestry operation is reasonably capable of being appropriate and

adapted et cetera, we say that the inquiry for

validity is by reference to the Convention obligation.

That is our contention about that and that, so long as it is supported by the Convention or reasonably

SlTS/2/SH	93	13/1/89
Queensland

regarded as being supported by that, we say that

dictates validity.

HER HONOUR:	Yes, but there is this further matter lurking in 19 and I have not looked at all of it and that
is a desertion - well, I would read 19 as having
implicit in it that not all the property is -
that, at best, only parts of the property can be
said to be the heritage.

MR GRIFFITH: Within the Convention obligation.

HER HONOUR:  Yes.

MR GRIFFITH: Well, our approach as to that, Your Honour, is

that that cannot be asserted.

HER HONOUR:	But it has been, has it not, in 19?
MR GRIFFITH:	But, Your Honour, we would submit that when one answers the first question that we propose, it cannot
be asserted.  We say that once you have got to the
point that is listed - - -

HER HONOUR: Well, I am not too sure that that is - well, let

me - the first question is - let me go back - and

on that there is no great issue between you.

MR GRIFFITH:  No, apart from this factual - you see, the

proclamation is with respect to the entire area,

Your Honour.

HER HONOUR:  Yes, and what does the - yes?

MR GRIFFITH: That is only supported if it is cultural or

natural heritage.

HER HONOUR:  What, the entire property is cultural or natural

heritage?

MR GRIFFITH:  Yes. We say, Your Honour, once - our point in

that question is, we say, once listed, as has

happened - - -

HER HONOUR:  Yes, well, is that point also raised in answer

to question 19?

MR GRIFFITH: Well, Your Honour, it is in the entire pleading in

that· we have these two issues. ~e say the first

leg is to say is the proclamation valid? If it is,

Your Honour, that can only be on the basis that the

entire area is to be regarded as natural or cultural

heritage and we say, once it is, Your Honour, there

is the obligation.

HER HONOUR: Well, why is that?

94

SlTS/3/SH	13/1/89
Queensland

:MR GRIFFITH: Well, we say it is raised in paragraph 21 of

our defence toot Your Honour.

HER HONOUR: Is it? Yes, I am sorry, I have not actually been

able to put my hands on your defence to this point

but that is undoubtedly my problem.

:MR GRIFFITH: Well, if I could hand Your Honour my copy.

There aretwo 21s, Your Honour.	We have got a
misnomer.	My fri~nd would like me to apply for

leave to amend the second paragraph.

HER HONOUR:  I have got a reply to amended defence but I have

not - - -

:MR GRIFFITH:	So, the first paragraph 21 on page 4 - - -
HER HONOUR:	Yes, but - I am sorry.
:MR GRIFFITH:	I can see what Your Honour is, perhaps, searching for is an allegation that the validity of the regulation
so far as regard might be had to whether it is reasonable should be determined by reference to the Convention obligation. Perhaps we should have pleaded that,
Your Honour.

Well, the second 21, perhaps, could be said,

Your Honour, on a generous reading, to subsume that

as its basis. My learned friend says that is a bit ungenerous. That asserts validity, Your Honour, by

reference to the Act. We say it picks up the Convention

but, Your Honour, we would submit that the issue is

clearly there; that it is one that we submit must be

determined by this Court and we say that there is a

matter of overriding convenience, Your Honour, for that

to be done as an initial issue.

HER HONOUR:  Yes, well, I can see the force of what you say but

I am still interested in the mechanics of it.

:MR GRIFFITH: Yes, well, Your Honour, so are we. It is a bit	elusive- because we have been going for a year now	and one thinks one has grabbed hold of it and then
it seems to jump away but - - -

HER HONOUR:  Mr Solicitor, I have just remembered - I do

apologize - there is another matter in the list.

It is almost 12.30. If I adjourn - we will not finish your matter before lunch time anyway - your

matter until 2.30, would that - and you may with the

benefit of that adjournment, be able to discuss, at

least, some of the matters relating to paragraph 5

that you - - -

:MR GRIFFITH:  Yes, well, we will do our best, Your Honour, but

it may be that the basic difference between us, as my

SlTS/4/SH	95	13/1/89
Queensland

learned friend says, this question should go off

somewhere else and our point is it should be

determined first.

HER HONOUR:  Yes, well, perhaps before we do adjourn, if

Mr Davies has written down what he says should be remitted.

MR DAVIES:  Yes, Your Honour. In our respectful submission,

of course, in the,ordinary course of events, what

would be remitted are the questions of fact in

paragraphs 17, 18, 19 and 20 of the statement of

claim but, in effect, all that needs to be determined

are the questions in 17 and 19 and Your Honour is

quite right in saying that, in a sense, the way

in which they are framed now, both in 17 and 19,

is dependent on the answer to the first question
but, on the basis that the greater includes the

less, if the question which were remitted were

such that, for example, looking at paragraph 19,

one were to substitute for the words "such part

of any of the property as is natural heritage as

so defined or cultural heritage as so defined", the

words "the whole or some part of the property the

subject of the proclamation" then that question

would be a discrete question which could be determined

now and without reference to the first question on

the basis that, even if the proclamation is held to

be valid in whole, then if, in fact, it can be shown

that the prohibition of commercial forestry operations

- as a question of fact - in the whole of the area is

not capable of being reasonably considered appropriated out to the proper protection et cetera, of the whole or

some part of that property, then that is a question of

fact, in our respectful submission•

• ?

HER HONOUR:  The whole or any part, I suppose, you are.saying.

MR DAVIES: Yes. That would be - - -

HER HONOUR:

And you are satisfied that that question determines

validity and invalidity? You concede that?

MR DAVIES: Well, it would determine invalidity, Your Honour.

There is no doubt about that. Determining it that

way would certainly determine invalidity.

HER HONOUR:	Yes.
MR DAVIES:	The converse may depend on the answer to the first

question.

HER HONOUR: Well, then, if that is the question that you

suggest can go, it does very much bear upon the

particulars you have requested - must, I think.

S1T5/5/SH	96	13/1/89
Queensland

MR DAVIES:  Yes, indeed, but in this sense, of course, in

our respectful submission, our statement of claim

is really very little different from the statement

of claim upon which you ordered particulars.

HER HONOUR: Well, I am not too sure about that. You see,

the issues - - -

MR DAVIES:  I mean, the particulars, in any event, Your Honour,

of course - - -

HER HONOURS:  I mean the statement of claim may be much the

same but the issues have been redefined to some

extent both by events and by the pleadings and it

is ultimately the - particularly when you get into

concepts of pregnant negatives, they have to be

isolated by reference to the issues.

MR DAVIES:  Quite, but Your Honour will recall that the question

was really isolated by reference to the first issue

which remains really totally unchanged, that i~ as

to the validity of the proclamation.

HER HONOUR: 

Yes.

MR DAVIES: 

Now, I am not saying that the particulars are not

also relevant to the regulations, they are, but they
are primarily relevant to the validity to the proclamation

and that is whether some part of the property is not

natural or cultural heritage or not whatever the phrase might be with respect to leaving that, to

some extent, to the question of decision of the

executive reviewable by this Court, whether it is
a question of objective fact or the other, that the

proclamation is not valid.  Now, it is really to that

that the particulars primarily go, to that question.

HER HONOUR: 

Well, if you are of the view that that question

can be answered on a stated case without regard

to evidence, then we will rethink the question of

particulars at 2.30 - - -

MR DAVIES:	No, I do not say that.
HER HONOUR:	- - - because, as I understand the purpose of

particulars is to confine the parties in the range

of factual inquiry.

MR DAVIES: Quite, yes.

HER HONOUR:  Yes. Well, we will stand this matter down until

2.30, I think, if that is suitable and I will call

the other matter and deal with it in the meantime.

AT 12.32 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

SlTS/6/SH	13/1/89
Queensland	97

UPON RESUMING AT 2.32 PM:

HER HONOUR:  Yes, thank you, Mr Solicitor.

MR GRIFFITH:  Your Honour, the adjournment was useful. My

learned friend has given us a manuscript but very

legible version of three questions which are derived

from paragraphsl7, 18 and 19 of the statement of

claim which we understand he proposes the questions

to be remitted.

HER HONOUR:	Yes.
MR GRIFFITH:	Your Honour, could I hand you, before I cotmnent on that, a copy of what would be our submitted
revised question 2 to go to the Full Court?
HER HONOUR:	Yes, thank you.
MR GRIFFITH:	Now, if I can make some short observations.

Probably, after what I said this morning, it can be

encapsulated rather briefly. Firstly, it does seem to

me, on reflection, that my statement on page 49 of

the transcript of the previous proceedings,

16 December, was probably, if I may criticize myself,

ill considered, when I said there probably was not

a difficulty in principle about remitting the

second question whilst the first remained to be

determined by the Full Court. It seems to us, on

reflection, that the issues are very closely related

and, Your Honour, we would submit that the second

question really can only be considered once it is

determined that the proclamation is valid because

the proclamation covers the entire area so that if

it is determined the proclamation covering the entire

area is valid, Your Honour, any consideration of the

regulations, so far as it is asserted that they may

only cover validly part rather than the whole

may only be considered, we would submit, in the

context of accepting a determination that the

proclamation in respect of the whole is valid.

Your Honour, we would submit that these issues are closely related and that as one question may

conveniently and appropriately be stated to the Full

Court, the only question proposed should be. We

would say that there is a real possibility that

it will dispose of all issues and if that -

well, Your Honour, my learned friend says, sotto voce,

"How can it?". If the answer to the question

proposed is, "Is the validity of regulation 3C

depend upon any inquiry of fact?---No." "Then, if

not, is the regulation invalid?---No.", that is the

end of the matter. That is the end of the whole
action on the basis that the first question is answered

on the basis the proclamation is valid.

SlTl0/1/PLC	98
Queensland

Now, Your Honour, that is a reasonable

possibility. If it is held that there is a relevant

inquiry of fact, in our submission, that is a

necessary precondition for any effective remitter

of the issue. Could we test that by looking at my

friend's proposed questions? We would submit, Your Honour, that those questions are mutually

exclusive, that there are three alternative pleadings here and, using logic, Your Honour, only one of them

may be asserted as being right.	My learned friend
does not say which one.

We would submit, Your Honour, that it could

be said on the fact of things that question 1

and question 2 cannot be regarded as the correct

inquiry, that it cannot be an issue of finding out

whether or not it can be said by a trial court that

the prohibition on the acts detailed in the

regulations is necessary is the proper test. Similarly,

Your Honour, we would say it cannot be said the

proper test is whether or not it can be said to be

consistent with the proper and reasonable protection.

So that on any view, Your Honour, we would submit

that the appropriate inquiry could be no more than

a version of the third question. But, Your Honour,

if there is to be this choice thrown up, one, two or

three, we would submit. it is now appropriate for
the Full Court of this Court to say which is the

correct one. Otherwise, a trial judge would be
embarrassed, Your Honour, by having a direction as

to three inconsistent lines of inquiry which will involve, of course, Your Honour, consideration of

what are appropriate particulars by reference to the

three different lines of inquiry and there might be

an enormous divergence as between what particulars

are relevant for one inquiry or another. We would

submit, Your Honour, it would be grossly inconvenient

and inappropriate that three inconsistent questions

be sent off with no direction as to what is the

correct inquiry.

HER HONOUR:  Can I interrupt you? I gather this is taken from

the amended statement of claim?

MR GRIFFITH:	Yes, Your Honour.
HER HONOUR:	Yes, it is 17, 18 and 19.
MR GRIFFITH:	Yes, Your Honour, yes.

HER HONOUR:  Yes, thank you. And can you then again assist me -

I am sorry to do this to you - by the paragraphs in

the amended defence?

MR GRIFFITH: Yes, Your Honour. It is paragraphs 17, 18, 19

and then, Your Honour, 22 - 21, the second 21. If
we may apply to amend that to 22, Your Honour.

My friend consents to us amending the second 21 to read 22, Your Honour.

SlTl0/2/PLC 99 13/1/89

Queensland
HER HONOUR: There is no need to make a formal order, is there,

at this stage?

MR GRIFFITH:	No, Your Honour.
MR DAVIES:	I think we will have to amend our reply, Your Honour,

because we describe as'the second numbered 21".

HER HONOUR:	Do you not have to - - -
MR GRIFFITH:	It is the whole problem about constitutional pleading,

Your Honour. We ~re thinking about this question.

We submit that subsumed into 17, 18, 19 and 21

is, in effect,	the capacity to argue the point
raised by our revised question 2.	But what we

say, Your Honour: my friends assert invalidity.

Now, they have to establish that, Your Honour.

HER HONOUR:  What you really say is the matters - do you not

raise the issue by saying that ..•. which is denied -

well, the matters in 17 do not raise a question of

invalidity and similar for 18 and 19, to determine

what, in effect, raises an issue of invalidity?

MR GRIFFITH:  It is more or less a strike out pleading,

Your Honour. But, you see, my learned friend says,
"I plead in three alternative ways invalidity."

We just say, "Well, they are all wrong". But, we

submit, Your Honour, when it comes to the crunch,

it is not for us to put an affirmative case for

validity at all. It is for my friend to get up

on a good case for invalidity.	But we are happy
to come clean, Your Honour.	I think we have probably

done it three times around the bush orally today

even if it is not here in the pleading. But if it

were thought appropriate we would be happy to amend -

to spell it out in respect of each of the paragraphs

but we say that they are all wrong but for the

purpose of the case stated, Your Honour, we have made

our position clear. It would be our submission,

Your Honour, to our revised question 2:

Is the validity of Regulation 3C dependent

upon any enquiry of fact?

And I should point out, Your Honour, the statement

.	of claim does not limit itself to· regulation 3C
although my friend indicates that. We would say,

"No."

If not, is the Regulation invalid?

"No . "

If so, what is the relevant enquiry of fact?

"Unnecessary to answer".

SlTl0/3/PLC	100	13/1/89
Queensland

Now, if my learned friend, Your Honour,

seeks to put in one of the three tests he proposes,

he can say, in answer to the first question: "Is

it dependent upon an inquiry of fact?---Yes", one

of his three tests or some other.

If not, is the Regulation invalid?

He would say, "Inappropriate to answer".

If so, what, is the relevant enquiry of fact?

His postulation 3 or 2 or whatever is the appropriate one. one would get from the Full Court a clear direction

as to what it is that was to be referred to the poor

trial judge who has to look at these facts for 12

months or so if it went off that way. So that,

Your Honour, we would seek to satisfy Your Honour

that there is a clear balance, not just of convenience

but as a matter of appropriate procedure in favour

of Your Honour ordering a case under section 18 of
the JUDICIARY ACT and,· inasmuch as there may be

contention as to what should be the precise question,

whether or not a particular document should be annexed,
we say Your Honour can determine that. It is a case

to be ordered by Your Honour, not just by agreement

between us. We will do our best to agree with

everyth±ng and we think we can, Your Honour, because

there is only this outstanding issue of the surrnnary

of proceedings at the final conn:nittee hearing that

seems to be an issue of fact to go in and we seek

no further facts for our question 2, nothing further

beyond that.

Your Honour, we would just be repeating ourselves

if we pointed again to the balance of appropriateness

of that being concluded authoritatively before the

issue goes off.

Your Honour, could I say something very briefly

then on the remitter submission that my friend made

as to which court would be appropriate? We would

observe, Your Honour, that the Federal Court is

identified in the Act as the court with jurisdiction

under this Act. That is in section 14, Your Honour,

and also in section 17(14) which has been repealed

so perhaps I needed not take Your Honour to that

but "enforcement" gives jurisdiction to the High

Court or the Federal Court and that is confirmed by

section 20 of the Act which says the Federal Court

has jurisdiction with respect to matters under

section 14. The High Court has too, Your Honour.

We say, Your Honour, that it is the natural

court to which the matter should be remitted. Inasmuch

as my learned friend referred to matters of convenience

to be dealt with in Queensland: witnesses, plaintiff!s

data base, views - well, Your Honour, the Federal Court

SlTl0/4/PLC	101	13/1/89
Queensland

is able to cover all those matters just as much as

the supreme court as to those matters of convenience

with the added convenience, Your Honour, that it is

able also to sit, if appropriate, elsewherP. and,

for example, Your Honour, our data base is in Canberra

and we have got witnesses outside of Queensland. So

that we say if the question of geography is relevant,

it would seem to confirm the Federal Court is

the appropriate court because then it can do what

is appropriate to meet everyone's geographical convenience.

One would expect ~hat the probability is most of the action would be heard in Queensland but one can see

there is a real possibility that it could be appropriate

to take evidence elsewhere and if that is a possibility

well, it should be enlivened by having the Federal

Court as the jurisdiction.

Your Honour, I indicated to my friend that we did not concede his inquiries to the Federal Court,

presumably to the registry in Queensland, as establishing

that it would be three months later before a

Federal Court judge would be made available.

Firstly, that was not evidence but, secondly, it

must be supposed that if an important like this

was remitted to the Federal Court such resources

as necessary would be made available. It is not a

question of saying, "Well, there's only two judges

in Brisbane. If they're tied up, they won't be

available." We do not know what the inquiry was

but the expectation would be as usual, Your Honour,

that the Federal Court would apply such resources

in a timely manner as were appropriate.	So, that is
all we wish to say about remitter.

Now, as to the issue of particulars, Your Honour: I indicated that my learned friend, Mr Black, is

here well placed, Your Honour, to meet paragraph by

paragraph my learned friend's submission as to that

but could I make some preliminary submissions which

perhaps avoid the necessity for that today? We submit, Your Honour, that having now had what we

did not have on 11 November, a refining of the issues

following the listing of the property, we submit

that the situation under which Your Honour ordered

particulars to the full request on 11 November which

has been responded with to the point as indicated

today, Your Honour; and as I mentioned last time,

something like 3 kilograms of particulars were

delivered that do go to great lengths, Your Honour,

in filling out the particulars, that, Your Honour,

in the circumstances, we submit, should regard the

order made 11 November as being spent and we submit

that Your Honour should then consider the question of

whether there should be further particulars by having

regard as to what is the immediate future of the action.

SlTl0/5/PLC	102	13/1/89
Queensland

If Your Honour takes the view that the

two questions on the lines proposed should be

stated to the Full Court or that a question along

the lines that we propose as question 1 and 2,

and if my learned friend wanted it, his questions 1, 2
and 3, could be stated. :t makes no difference to

us because we regard them as being subsumed into our

question anyway, but if - - -

HER HONOUR:  Do you go so far as to say that question 3 is

not a relevant qu~stion on this document?

MR GRIFFITH:  Your Honour, what we say is that that is subsumed

into our question.

HER HONOUR: Into which question?

MR GRIFFITH:	Our question 2.
HER HONOUR:	Yes.
MR GRIFFITH:	But we are quite happy, Your Honour, to have a

question:  "Are the regulations not capable of

being reasonably considered to be appropriate and

adapted to the proper protection, conservation,

presentation or rehabilitation of the property?"

HER HONOUR:  Or "or part thereof"?

MR GRIFFITH: Well, Your Honour, "part thereof" is a bit of a

problem given the whole question of validity of the proclamation which goes to the whole of the property. It cannot go to part of it. That is why

we say they are related. But, Your Honour, if the answer was "or part thereof", that could be put in

the answer even if it were not in the question.

HER HONOUR:  Yes. Now, you still assert, do you, that there

can be no factual inquiry as to matters other than
those comprehended in the documents which you

would attach to the special case which could bear

upon the answer to question 3?

MR GRIFFITH:	We say, Your Honour, any facts my learned friend either asserts as actual facts or hypothetical
facts could make no difference. That is our
assertion. Perhaps if I could mention,just in
passing, your example of the log in the sawmill.
We would submit, Your Honour, that a log is not a
tree and it is not covered by the regulation. So,
that is our answer to that. But it is very hard,
Your Honour, to think of an example but we had better
not throw up that as a matter of chase. But
we do no mind my learned friend submitting anything
as a fact or as a postulation. Our answer will be,
"It makes no difference".  So, they can hand up
whatever they like, Your Honour, and say, "We say
this is a fact" or "We would like to establish it as
a fact".  They can assert it. We will say, "It makes
no difference".

SlTl0/6/PLC	103	13/1/89
Queensland

HER HONOUR: Is that to some extent or wholly, perhaps,

because of the ministerial discretion?

MR GRIFFITH:  No, Your Honour, no. We say because this

material establishes to the requisite standard

of - - -

HER HONOUR:  That is where I have some difficulty, Mr Solicitor.

I could understand that if the ambit of inquiry

is restricted within the material which is comprehended

in those documents, that you could make that

submission but I do not understand why the ambit of

inquiry should be so restricted at this stage.

MR GRIFFITH:  Your Honour, we say the question is once one

says, ''Well, the regulation is a means for affecting

the Convention obligation", that we say it can only

be struck down if it is said that it is not capable

of being reasonably regarded,et cetera. And we say,

Your Honour, that the Court, looking at this material,

would be satisfied that it must be reasonably

regarded and that there is nothing being put in the

way of a postulation to alter that satisfaction.

Your Honour, the ministerial discretion I

relied upon as a second limb on this sawmill

example, to show that there is an example, that

is all right but, of course, it has to be exercised

by reference to convention obligations. But,

Your Honour, on that issue we are either right or wrong but we submit it is appropriate for the Full

Court to determine that. And then one has the

consequent advice: if we are wrong, well then,

one would get an authoritative direction to the

remittee court which one will not get now. My

friend's postulation is three disjunctive choices.

He does not know which, and the first thing one would

expect, Your Honour, is there would be an application

to determine which was correct before any further

particulars were ordered but come back again.

HER HONOUR:  Can I approach it another way, Mr Solicitor? You

do not deny the relevance - we are only in terms

of the third question. You do not deny the

relevance of inquiry as to facts relevant to whether
or not as reasonably capable of being regarded as
appropriate or adapted to the protection et cetera

of the area? You do not deny the relevance of inquiry

as to facts?

MR GRIFFITH: Well, we do, Your Honour.

HER HONOUR:	Well then, why would we - - -
MR GRIFFITH:	We do deny.
HER HONOUR:	You do now?
MR GRIFFITH:	We do deny, Your Honour.
SlTl0/7/PLC

Queensland 104 13/1/89

particulars went mostly to the first issue. We say that should be put on hold and we say that if there

is• any outstanding question, if the matter is now

ordered to be remitted, particulars should be looked

at afresh otherwise, Your Honour, it is really an

exercise in expensive oppressive futility.

Now, if Your Honour desires today to go further

on that issue of particulars, well, my learned friend,

Mr Black, would desire to go through paragraph by

paragraph and respond to my learned friend as to that

but possibly, Your Honour, the more important question
is the issue of the stating of the case and whether
or not there is to be any remitter at this time.

Your Honour, we would expect, if my learned friend makes a transcript available of the extra

fact he wants, that we would agree and we would point

out, Your Honour, that in the event, at the end of the

day, Your Honour can determine any outstanding issue

there but we would hope that we can agree fairly

quickly on that. So that the only issue then for

Your Honour now to determine is the question of

whether a revised question 2 or a version of my

friend's questions 1, 2 and 3 or, the third choice

we give Your Honour is a question on the lines of a

modified question 3 of my friend:  "Are the regulations

not capable of being reasonably considered to be
appropriate and adapted to the proper protection,

conservation, presentation or rehabilitation of the

property?" should be put to the Full Court. If

Your Honour pleases.

HER HONOUR:  Mr Solicitor, I am sorry to keep trying to pin

you down.

MR GRIFFITH:	I am anxious to be pinned down, Your Honour.
HER HONOUR:	It is probably a question of my understanding of

it and it may be relevant to what, if any, question

should be formulated in - well, to the formulation

of questions. You would not dispute that if questions 1

and 2 in Mr Davies' document are relevant questions -

well, if they are questions that determine validity

or invalidity of the regulations, that some factual

inquiry would be necessary in respect of them, would

you?

MR GRIFFITH: 

No, Your Honour, but we would say that before

there is a factual inquiry one should determine
the pleading issue.

HER HONOUR: 

Yes, I understand that but it is only in respect of what is Mr Davies' third remitter question that

you put the proposition that no inquiry into factual

matters outside the ambit of those covered in the
documents attached to the stated case is permissible?

SlTl0/10/PLC	107	13/1/89
Queensland
MR GRIFFITH:	I think we can accept that, Your Honour.	Of course,

we say that questions 1 and 2 are strike out ones

Jec9use they do not, as a matter of law.

HER HONOUR:  Yes. Well now, could you tell me how you would

formulate the question in relation to question 3

as to whether or not factual inquiry beyond that

which is comprehended in the documents is precluded?

MR GRIFFITH: Yes, Your Honour, our revised question 2.

HER HONOUR: Well, yes. Let'us hypothesize this: question 2:

whether the validity of regulation 3 is

dependent upon the regulation being necessary for

the proper protection,et cetera, of the property?

A further question: whether the question of validity

is dependent upon logging - forestry operations

being consistent? Question 4 then - we hypothesize

these questions - whether or not the validity is

dependent upon the prohibition - and, of course,

one would have to redefine it in terms of

prohibition subject to ministerial consent because

that really is the question.

MR GRIFFITH: Yes. I think my learned friend would agree

with that subsumed, Your Honour.

HER HONOUR:  Yes, is dependent upon the prohibition being capable

of being seen as adapte4 et cetera.

MR GRIFFITH:	Yes.
HER HONOUR:	Now, what then would become question 5 which says whether any factual inquiry as to the matters is
relevant to question 4 on that hypothesized plan.
MR GRIFFITH:	I suppose, Your Honour, one, for completeness,

would have to have a general question if that were

the question to go to the Court. Alternatively, is any other, and what, inquiry of fact relevant?

So that one could cover another formulation, it is a

sort of a coverall question. We would hope,

Your Honour, there would also be a question that

would go to what is our first point,

is that can it be said on the basis of the material

in a case that the regulation is invalid.

HER HONOUR:  Yes, but the difficulty is that Mr Davies says

''Well, it can be if I accept that that is the only

relevant material."

MR GRIFFITH:  No, Your Honour, we do not ask him to give that

concession. If that is the case, Your Honour, the

answer to the question would be, "Well, you can't
answer it", if he is right but we say he can answer
it because he is wrong. But we would like the Full

Court to answer that issue between us, Your Honour.

It is a real issue.

SlTl0/11/PLC	108
Queensland

HER HONOUR:  Yes. I am still having difficulty in its

formulation.

MR GRIFFITH:  Yes. Well, Your Honour, we seek in our question 2

to enable my learned friend to argue his question 1,
his question 2, his question 3, any other way he
likes to argue the question of what is a relevant
inquiry of fact, in the aim, Your Honour, to get an

authoritative direction from the Full Court as to

what is the inquiry of fact. Now, we go one step

further in saying· that, what is mre, in such an application

on a case, say, to the Full Court, one can argue, and we would expect to obtain a result which will

be determinative finally of the whole issue. Now,

Your Honour, possibly it is rot essential to ask

that question, a separate question, because if that

emerged from the judgments it would emerge anyway

whether there was a question or not. But, you know,

we would say is it not convenient to spell it out

that that is an issue. It is an issue. That is what

we would be arguing, Your Honour, and whether it was a question or not, one would expect if that view was

vindicated on argument, for the Court to express its

decision in answering the other questions in a way

that made that clear.

Your Honour, at the end of the day it is a

matter of discretion for Your Honour. It is not for

us to dictate or agree on anything.

HER HONOUR:  One does strive, however, for questions that are

capable of answer.

MR GRIFFITH:  Yes, Your Honour. We did attempt over lunch-time,

Your Honour, to run all the possibilities through

our revised question 2 and we did feel, Your Honour,

that on any contention it should be regarded as one

that has been put by either side. We would submit

a short question in that form would enable a definite

answer. But if it were done in the form Your Honour

suggested of my learned friend's question 1, 2, 3

and then another general one, "Well, if not one of

those inquiries of fact, what other inquiry of fact?",

in essence, is the same result, Your Honour.

HER HONOUR:  No, because - - -

MR GRIFFITH: Well, it is an acceptable result, Your Honour.

HER HONOUR:  It is not "If not one of those inquiries of fact,

what other?". What you seem to be putting, unless

I have gravely misunderstood you, is that no further

inquiry as to fact could be relevant - no, you

go further: any further inquiry as to fact in

relation to question 3 is for some reason precluded?

SlTl0/12/PLC	109	13/1/89
Queensland

MR GRIFFITH:  Is irrelevant to validity. You can do it but

it is not relevant to validity. We would say

validity is absolutely determined by what is

there and that cannot be overturned by any other

inquiry of fact. Your Honour, that is putting -

HER HONOUR:	Why?
MR GRIFFITH:	Your Honour, because we say that it is enough

to satisfy the Court that this regulation 3C is

capable of being reasonably regarded by the enacting

body as relevant to discharge the Convention

obligation and that is that.

HER HONOUR:  You do say question 3 is a relevant question; question 3 of Mr Davies? Do you actually deny

that that question is relevant?

MR GRIFFITH:  Your Honour, we say that inasmuch as my learned

friend says that is an issue, that issue can be

answered absolutely on the basis of the material

which - - -

HER HONOUR:  Do you deny it is an issue?

MR GRIFFITH:  Your Honour, it is an issue between us. We say

all the necessary facts are already there and that is

an issue between us.	My friend says there is not,
there are other facts,	that is an issue, Your Honour,

but we say it is already there. Alternatively,

Your Honour, we say that an issue appropriate to be

determined by the Full Court is to determine which

is the inquiry, is it l, 2 or 3 or some other? And

that is - - -

HER HONOUR: Well, some other is not in issue, is it? I mean,

some other, at this stage, it is not propounded by

Mr Davies; no other one is propounded by you, is it?

MR GRIFFITH:  Your Honour, we would cast it in the negative

in that my learned friend has to show it is incapable

rather than us, that it is capable. So, we say, "Are

the regulations not capable of being reasonably
considered as appropriate and adapted", et cetera?	We

say that is the question of fact there. We are happy to have that question stated, Your Honour. But it is

necessary, we submit, for the Full Court to indicate which is the right question. My friend has not made

a choice in his pleading so we need the Full Court to

do it. If my friend gave up question 1 or 2 and

said, "Look, I' 11 plunp for", say, the one that we

just said, well, Your Honour, that was the question of

fact. If, then, the matter was remitted for a trial

on that, our first point would be that this material
is all that you need to go to and that is determinative

and we are either right or wrong on that.

HER HONOUR:	That is all right but you would have to go, subject to some discretionary evidentiary rule which says that
you do not need to accept limitless evidence of the
same matter.

SlTl0/13/PLC	110	13/1/89
Queensland

MR GRIFFITH:	Yes, of course, Your Honour.
HER HONOUR:	If Mr Davies abandoned questions 1 and 2 and

question 3 were remitted, you would have to say -

your first submission would have to be, consistent

with what you are saying, you are precluded from

having regard to any material other than what is

in these documents?

MR GRIFFITH: It is not that it precludes the matter -

there is no p~int. It is not relevant

because - we would say it is irrelevant.

HER HONOUR:  Why?

MR GRIFFITH: Well, Your Honour, for the reason that we have made.

We say that if there is enough there to get you home,

it is no use - - -

HER HONOUR:	Yes, but that does not go to the question of relevance, Mr Solicitor. The fact that there is
more than ample sufficiency - - -
MR GRIFFITH:	The second leg, Your Honour, is that there is

nothing that you could prove that can make any

difference. Whatever it is, if it is true, it does

not make any difference. That is what we would say.

"Tell us what you want to prove - - -"

HER HONOUR: Well, is that not saying you can never discharge

an onus?

MR GRIFFITH: It could be put that way, Your Honour, but

basically it is a question of saying that there is

no fact which you can prove which can effect that

result. That is what we would be saying. We would

be saying something else, Your Honour. We would

say that you cannot proceed to do this until the

validity of the proclamation is determined and we would

say, also, that no particulars can be given until

they are confined to the particular issue as

legally relevant.

Perhaps just a last clarification, Your Honour: however expressed, we do feel that it is appropriate

that the Full Court should give this direction as

to what is the appropriate inquiry because my learned

friend has indicated by the request for particulars,

by the particulars we produced, by his demands as to

proliferation of detail which my learned friend,

Mr Black, can wax eloquent on Your Honour as to how one can have grids down to the last metre or so

over 80 grids of 325 kilometres, whatever the square

area is. We would submit, Your Honour, it is not just a matter of legal analysis that dictates the

result, but overriding convenience.

There is also another convenience, Your Honour,

that regard might be had to and that is it is . in the

public interest that this matter be resolved as

expeditiously as possible. One of the elements - - -

SlTl0/14/PLC	111	MR GRIFFITH, QC	13/1 /39
Que,~ns land

HER HONOUR:  I think you both invoke exactly the same public

interest.

MR GRIFFITH:	Yes, we do, Your Honour.
HER HONOUR:	You just differ as to the means of it.

MR GRIFFITH:  Yes. One of the elements of listing, Your Honour,

is that there should be some scheme of management

prepared and all that is on hold. Our international

obligation is to prepare a scheme of management

and that must be held on hold until this whole issue

is disposed of.

HER HONOUR:  I do not see why. The preparation of a plan - - -

MR GRIFFITH: Well, because we cannot co-operate on it

while these issues remain between us, Your Honour.

It is more a political fact.

(Continued on page 113)

SlTl0/15/PLC	112
Queensland
HER HONOUR:	I do not wish to hear you further on that because

it may trespass on things that would not be appropriate

to but - - -

MR GRIFFITH:  No. We are desirous to have the matter resolved

exneditiously and we believe, Your Honour, that asking

the Full Court these questions will do it because we

can just see an endless inquiry into fact without

direction if it is not.

Perhaps if Your Honour could indicate whether

in due course you would desire to hear my friend,

Mr Black, on the particulars of the particulars.

HER HONOUR: Well, I think, subject to anything Mr Davies wishes

to say, I would be content to deal with the question

of remitter and stated case at this stage, leaving

the particulars to stand over.

MR GRIFFITH:	Yes.
HER HONOUR:	I do not think Mr Davies sought any order at this

stage, did you, in relation to them?

MR DAVIES:  No. Well, certainly with respect to some of them,

Your Honour, we accept that the arguments, obviously, are best left to another day because I have said they are going to give us some further particulars in a

number of respects and, certainly in those respects,

the argument is best left to another day and I have

really said all I needed to say in respect of those

and we are, really, in Your Honour's hands with respect

to that.

HER HONOUR: Well, I think I would find it more helpful if you

made your submissions in reply to the remitter and the

stated case and, if it were accepted that both the

Cormnonwealth and Queensland have the right to deal

with particulars at greater length if that should

become necessary. Would that be suitablA M~ Solicitor?

What I do not wish to shut you out of, dealing

with particulars if it becomes necessary but I think

if you can deal with the other two questions first.

MR GRIFFITH:  Yes, if it becomes necessary, Your Honour, although

I indicate our primary submission is that in the

circumstances the order made on 11 November should
be regarded for the moment as spent, rather than still
running, for the reasons we have stated - or suspended

rather than spent, perhaps.

MR DAVIES:  I do not think we would accept that, Your Honour.

I ~ean, particularly in view of the intimations

SlTll/1/SH	113	13/1/89
Queensland

which have been given to us from the Corrnnonwealth

that we are going to get some further material. It

is hardly a suspension of the order if, in fact, the

particulars are still being given to us and we have

been assured, both in correspondence and orally, that

in fact that was - - -

HER HONOUR: Well, let me put it like this: it seems to me

that, at least prima facie, it seems that the

particulars which.were requested do not bear a

resolution as it were that accords precisely with

the issues that have come up on the new pleadings

and, if that is the case, one is going to have to

go through paragraph by paragraph as aeainst the

amended pleadings. That is not a task you have

attempted to do today. What you have sought to

do is to assert your right by reference to the

previous order and the previous request but without

relating them to the pleadings as they now stand.

MR DAVIES:  Yes, but that is because, Your Honour, our

contention was and is that, in that respect, the

difference in the pleadings is of a formal nature

only.

HER HONOUR:	Yes, but I would have to go through the - - -
MR DAVIES:	I appreciate that Your Honour would need to do that

and perhaps we would need to take Your Honour through
them and perhaps that question we could not do now

and, perhaps the appropriate course is to look at the

matter after the Commonwealth have supplied the further

information they say they are going to do or look at

part of it anyway.	I mean, they say they are going
to - - -

HER HONOUR:  No. The first step is to look at how the particulars

relate to the issues that arise by reference to the

pleadings as they now stand, I should think.

MR DAVIES:

Yes, well, I can do that, Your Honour, but I probably

cannot do that and deal with the other matters during

the course of the afternoon.

HER HONOUR:  Yes, well, it is a matter for you. Which would

you prefer to do?

MR DAVIES:	I am happy to do it all, Your Honour, to do all of those things but I would run out of time that is the
only thing.

HER HONOUR:  Yes, well which would you prefer to do first?

MR DAVIES: Well, perhaps I should answer our learned friend's

contentions first, Your Honour, because they are the

things he dealt with last and I think Your Honour

has rather indicated you would prefer to hear that

first.

SlTll/2/SH 114 13/1/89

Queensland

HER HONOUR:	Yes.
MR DAVIES:	Can we say, first, why our learned friend's

second question should not be included in a stated

case and that is, very shortly - and Your Honour

has, really, said this to our learned friend - that

we must be given the opportunity, in our respectful

submission, of adducing evidence to show, for example,

that some commercial forestry operations are so much

more appropriate and adapted to the proper protection,

et cetera, of some part of this property that complete

prohibition is not capable of being reasonably

considered as an appropriate means of protection and
conservation.

Now, can I give you an example. There has been

a scheme in existence in this property of what is

called selection logging,which is taking eight to

ten large trees over a 40-year cycle per hectare -

eight to ten trees per hectare over a 40-year cycle.

We will have some evidence, so I am told, which will

show that that is very much more consistent with the

conservation of certainly some parts of this forest

than a complete prohibition.

Historically, there have been cyclones going through there. There were Aborigines in the area

who used to fire the are~ and so on and all these
things will be dealt with, no doubt, in evidence but
if, for example, let us take say, some part of this

area and if it could be shown that in some part of

this area that process, selection logging on a

commercial basis- taking only eight to ten trees

per hectare per 40 years-was so much more consistent

with the conservation, that is, the protection of

any endangered species which may be of universal

value than a complete prohibition as to make a

complete prohibition not capable of being reasonably

considered as appropriate, then, in fact, we should

be allowed to adduce that evidence.

Now, to say it as an hypothesis may seen fanciful

and it is, in our respectful submission, inadequate

for hypotheses, some of which may appear to be

fanciful in the absence of independent expert

evidence, to the Full Court of this Court on the

basis of some hypothesis which is consistent with the proposition we want to put and so, it is just not correct to say, Your Honour, that there can be

no facts which can be relevant to that question, to

the third question we pose, for example, because,

in our respectful submission, there are and we want

to adduce facts which are relevant to the third

question we pose in those three.

Now, if one looks at the other side of that,

for this question, that is the question of what, if

SlTll/3/SH	115	13/1/89
Queensland

anything, should be remitted for a trial of fact,

we would submit, with respect, that at least the

third question that we pose should be remitted for

trial of fact.	Now, I say that - we do not want to
- I am sorry.

HER HONOUR:  Does that mean - would you really wish to sever

the presentation of evidence?

MR DAVIES:  No. We submit, with respect, in fact there would

be no greater evidence required to determine all of
those three question than there would be to determine

the third. The evidence would be precisely the same,

certainly from our side. There would be absolutely

no difference in determining question 1, question 2 and question 3 as questions of fact in terms of the

evidence which would be adduced, and that is why we say

there is nothing lost.

HER HONOUR: Well, there is, Mr Davies, in this sense: the

evidence you may wish to bring may be precisely the

whether prohibition is necessary would be the same as to whether prohibition is reasonably

same but it is inconceivable that the evidence of the question

adapted.

MR DAVIES:  Well, it is a question of degree, Your Honour, but

I mean, in this sense, it really depends on, for

example, how much better our scheme for conservation

is than prohibition.

HER HONOUR:  No, not on any of the - well, perhaps, only on

2 (b).

MR DAVIES: No. If, for example, our scheme - well, we would

submit to all of them in the sense that if, for

example, our scheme - let us take this

as one of them, this selection logging example that

I gave - if, in fact, that method is so much better

than complete prohibition as to make complete

prohibition incapable of being reasonably considered

as appropriate and adapted to the conservation and

so on, then the question 3 would be answered as a

question of fact in our favour. If it were not that

much better but if it were better - I mean, if it

was as good but not necessarily better - then

question 1 would be answered in our favour but not

question 3.

That is why we say, in the end,

in our respectful submission, it

really depends on the question of the degree of

difference between what we say is a proposal for

SlTll/4/SH	116	13/1/89
Queensland

conservation consistent with some commercial

logging and a scheme based on an entire prohibition.

So, in our respectful submission, the conclusion,

although different, the evidence would, in our

respectful submission, be the same or very little

difference. In substance, in our respectful

submission, it would be the same but, in our

respectful submission, it cannot be the case that

there cannot be any possible factual evidence that

can be adduced alqng those lines,

So, we would submit, with respect, first

that whatever happens with respect to the stated case,

because the question of law, we submit, has really

been stated, although in various forms, in substance

in the same way by the various justices in RICHARDSON,

that there is no room for any question of law on the

second question.

HER HONOUR:  On? When you say the second question, you are

referring to - - -

1:1R DAVIES: Well, our learned friend's - on our learned

friend's second question, validity of the regulation,

sorry.

HER HONOUR:	Yes, sorry.
1:1R DAVIES:	There is no room for any question and, indeed,

what our learned friend is doing is, really, seeking

some really hypothetical guidance as to what inquiries

there should be, rather than the determination of a

question on the case stated which is gaing to resolve

the case and, in our respectful submission, that is

an additional reason why it should not be stated.

But the main reason, in our respectful submission,

is that, in order to enable that sort of question to

go forward as a question for resolution, it must be

concluded that there can be no factual evidence which

we could adduce which could be relevant to show that

some corrn:nercial forestry operations are not so much

better than a complete prohibition as to make complete

prohibition incapable of being reasonably considered

appropriate and adapted to the conservation of the

area or some part of it and, in our respectful

submission, we should not be precluded from that

opportunity of adducing evidence.

HER HONOUR: Well, it may be that the real question is whether,

if you put it that way, prohibition is inappropriate.

1:1R DAVIES:	Yes.
HER HONOUR: Well,	as it were, in the ne~ative's move,

and there are consequences, I think, by moving the

negative.

1:1R DAVIES:  Yes, indeed, but I suppose one is really only talking

about onus of proof in a civil action and, in the end,

SlTll/5/SH	117	13/1/89
Queensland

the determination of the factual question - we

are talking about, now, the determination of the

factual question on a remitter - the determination

of the factual question is going to be a balance of

probabilities - determination by the trial judge

so an onus or proof is not going to emerge very much.

We are the plaintiff; we are going to go first.

There is no question about us not adducing any

evidence first. We will put all our case first

and, no doubt the Commonwealth will put a case and

then the trial judge will then balance the evidence

one against the other and come to a conclusion so

we do not really see a - - -

HER HONOUR:  And would the question for the trial judge be

sufficiently put, from your point of view, that prohibition, in accordance with the regulation,

is inappropriate to the proper protection
conservation, preservation, rehabilitation of the

property or some part thereof?

MR DAVIES:  Yes, I think so, definitely so. Your Honour is

saying it - - -

HER HONOUR: All right. And you would say that unless that

question was answered in your favour, the regulations

stand?

MR DAVIES: Subject to the proclamation, of course, subject to

our - - -

HER HONOUR: Subject to the proclamation, yes.

MR DAVIES:	Yes.
HER HONOUR:	So, you could really comprehend questions 1, 2 and

3 into that question?

MR DAVIES:	Yes.
HER HONOUR:

It is quite a different question from what is

posed in questions 1 and 2 of your document.

MR DAVIES: It is, indeed. It seems to be somewhere between

1 and 2, on the one hand, and 3, on the other,

Your Honour. - closer to 3.

HER HONOUR:  No, it seems to be somewhat less favourable to you

than any of them, I would have thought. I am sorry.

MR DAVIES: Well, I would have submitted, Your Honour, that

it was perhaps more favourable to us than 3, in

the sense that for 3 all our learned friends would.

SlTll/6/SH 118 13/1/89

Queensland

have to show that it was reasonably considered

to be appropriate rather than that it was - - -

HER HONOUR:  Yes, but ..... you would have to show it is inappropriate.

MR DAVIES: Quite, but that is simply, as Your Honour has

said quite rightly, the onus of proof question.

In the end, there is a balancing question. It is

either appropriate or inappropriate. There is no

middle ground, presumably. It is either appropriate

on this balance or inappropriate on that one.	I
think that we would probably accept that as an

appropriate question for a trial judge, Your Honour.

I will just get some instructions on that.	I might
need to get some formal instructions on that,

Your Honour, but I would think, at the moment, that

we would accept that as an appropriate question for

a trial judge.

HER HONOUR: Well, then, what would happen to you pleadings?

Let us assume that a trial judge answered that

question against you, what would happen to your

pleadings? Do you then come back and say, "Well,

it may not be inappropriate but we want to show

that it is not necessary."

MR DAVIES:  No.

Obviously, if we accepted that as an appropriate question - as the only question to go to a trial judge

on the regulations - then we would have to accept that

that was the only test which he had to apply and we

would have to abandon allegations in 17 and 18 and,

if we did accept that - that is why I am just

hesitating about accepting Your Honour's invitation.-

my inclination would be favourable to accepting it

but I would like a little more time to think about

that.

HER HONOUR:  Yes.

MR DAVIES:  But, subject to that, I would be rather inclined

to think that was an appropriate question to be
remitted to a trial judge and, if it were, of course,

then there would be no difficulty in remitting that

now, again, subject to the question of particulars

and we would certainly want - - -

HER HONOUR: Well, this question puts a quite different

complexion.on particulars. There are

two aspects to the particulars really.	The first is
to what extent they do relate to the issues now.	The

second is if any question that is being remitted, the extent

to which any order, any further order~ or any

continuance should be given to the existing order,

that is to say whether or not the whole question of

particulars should not go with the remitter.

SlTll/7/SH	119	13/1/89
Queensland

:t:1R DAVIES: Yes, quite. Well, Your Honour, I probably

should make this point about the particulars, that

I did not say at any stage and no doubt the transcript

will reveal whether I am riEht or wrong in this

recollection, that they are, for the most part,
related to question 1. What I said was that, in

the first place or primarily they are related to the first question. Now, the difference between those two formulations, of course, is the way that my

learned friend formulated what he thought I had

said, indicated that they were divisible in some

way. What I have alwavs said, I thought, was that

all of the particulars are relevant

to the first question,and primary to that but all

of the questions are also relevant to the second
question and, indeed, in one sense, of course, the
question of location, precise location of say

endangered species and the precise nature of the

endangered species in that precise location, is

very relevant to whether a system of conservation

for that location is appropriate and adapted to

the end of conservation in that precise area.

So, all those questions are related to what e:ther

property of interest or flora or fauna of interest
is in a particular area and what it is and so on, is

of, in that sense, as much relevance to the second

question as it is to the first. I really just want

to make that point, Your Honour, in case it was

thought that somehow or other I was saying that

some of the particulars are relevant to the first
question and some to the second and, perhaps, most

of them to the first. I was never saying that. I

was saying that, primarily, they are relevant to

that first question but, when you look at them in

relation to the second question, they are of great

importance because - and, in particular, on the

question of locating precisely the grid system and

so on, locating precisely what system of conservation

is appropriate to what part of the forest.

HER HONOUR: Well, it depends how you formulate your question

whether there is - - -

:t:1R DAVIES:  Yes, but on any of the formulations, for example,

of either our 1, 2 and 3 or the question which you suggest to me, what I have just said is applicable,

Your Honour.

HER HONOUR:  Yes, but it may not be a pregnant negative any more

which got you your particulars in the first place.

:t:1R DAVIES: Well, that is true. Well - no, that is perhaps

not right, Your Honour, in this sense: it would still be a negative pregnant in the sense that, if

SlTll/8/SH	120	13/1/89
Queensland

you look at paragraph 19 and, indeed, 17,

they are both phrased in a negative -

not necessarily in the first part

capable of being reasonably considered in the .

second part - in 19. So, we have, in each case, put it

in a negative way, and your phraseology, of course,

is also in a negative way inappropriate. So, for

the same reason, in our respectful submission, there

would be, we would contend, the same negative pregnant.

But, Your Honour,. ,I do not know that there is anything more I can usefully say about any of those aspects

except to say that I would like to take instructions

on the invitation Your Honour held out as to whether,
in fact, we would be happy to have remitted the
question as to whether, in fact, prohibition was

inappropriate and I could do that, no doubt, within

a matter of days.

HER HONOUR: Well, we should, before you do anything of that

nature, hear what the Solicitor-General says on that

question.

MR DAVIES:	Yes.
MR GRIFFITH:	I would be grateful if Your Honour could state

Your Honour's formulation again.	I did not get it
all down.

HER HONOUR:  Whether prohibition of commercial forestry

operations ~ that meaning that

which is proscribed by the regulations -is inappropriate
for the protection, conservation, preservation - and

it would have to be and/or - rehabilitation of the

property. It should be presentation, should it not?

MR GRIFFITH: Presentation, yes.

MR DAVIES:  Would Your Honour include in that the whole or

some part?

HER HONOUR: Well, I am not formulating this as a precise

question.

MR DAVIES:	No, I appreciate that.
HER HONOUR:	But what the question was meant to

convey really is that, without the trial judge being

positively satisfied that it is inappropriate by

reference to such evidence as may or may no~ be .

relevant to that issue, then the regulations are valid.

MR GRIFFITH: Yes, well, Your Honour, that would seem to have

a great advantage in that the·element of alternative

pleading would be removed.

HER HONOUR:	I think so, yes.
Queensland

SlTll/9/SH 1 21 13/1/89

MR GRIFFITH:	Yes.
HER HONOUR:	I mean, the real question is, it seems to me,

is the test of invalidity that it is inappropriate.

I mean, presumably only that which is not reasonably

capable of being regarded as appropriate is the

inappropriate.

MR GRIFFITH:  Yes, well, Your Honour, that sounds about right,

in our submission, as to what the test is. However,

we still do assert, Your Honour, that the material

annexed to the draft case is sufficient to foreclose

that issue, in our submission.

HER HONOUR:	Yes.
MR GRIFFITH:	Now, whether that issue should go now to the Full Court or not - - -

HER HONOUR: That the evidence forecloses?

MR GRIFFITH:	Yes.
HER HONOUR:	Or that the evidence - yes.

MR GRIFFITH: That gets within the traditional precondition

for stating a case in that if answered one way it

will dispose of the action - the whole action because

both issues then are before the Full Court.

Now, one problem about sending it off now, Your Honour, is if this went off so that, in effect,

that issue were not now considered by the Full Court,

we still would see, Your Honour, that not much

progress can be made until the Full Court has given

judgment on the first question because my learned

friend is talking about all part, Your Honour.	We
say that the upholding of the validity of the
proclamation as to the whole - the proclamation

applies to the whole - is very relevant, Your Honour,

to any attempt from my learned friend to mark off

parts.

HER HONOUR:	Yes, the "or part" does have some impact on it.
MR GRIFFITH:	Yes, it does, Your Honour, and we say that it

is not for my learned friend to just identify little

bits of the grid and say, "Well, in this particular

area, you could chop or have a 40-year plan". What

we say is the inquiry is looking at all these 80
grids as a whole. Is this mechanism by regulation
3(c) in the provision of ministerial consent appropriate

or not inappropriate? That is really, as Your Honour

pointed out, an entirely different issue but we would

cavil, Your Honour, at any attempt to make the inquiry

one directed to these little parts. It is the whole we

are talking about - the regulations to cover the whole -

and reasonableness for appropriate - - -

SlTll/10/SH	122	13/1/89
Queensland

HER HONOUR:  Yes, but what is the test? It is not whether the

regulations ..... the question is what is the test?

MR GRIFFITH: Well, Your Honour, it probably is very close to

what Your Honour says, whether it is demonstrated to be inappropriate but we say by reference to the need

to have a provision to discharge the convention

obligation as to the whole, not as to each square

kilometre considered as a separate square kilometre.

That is our case about it, Your Honour, that it is

an in globo thing and you cannot divide it into bits

and find a bit and say, "Well, this little bit looked

at on its on its own, could be dealt with this way."

We say yes, but you need a regime to apply universally.

That is the test.

HER HONOUR:  I am not too sure that we are not lost in negatives

again.

MR GRIFFITH: Well, I think we have made progress, Your Honour,

in that, at least, if I just - - -

HER HONOUR:  Well, we have not because Mr Davies wants

instructions.

MR GRIFFITH:	Yes.
HER HONOUR:	But, if Mr Davies were able to show, for example,

that the relevant proscription, the proscription as

it stands, was inappropriate to the preservation of

part, _he would be showing it

was inappropriate to the preservation of the whole.

MR GRIFFITH:  We would disagree with that, Your Honour,

entirely. We would say that, Your Honour, the

question is whether it is appropriate, having regard
to the whole, and the fact you only identify little
bits of the part makes no difference to the

appropriateness of the whole.

HER HONOUR:	Yes.
MR GRIFFITH:	We say that would be the wrong inquiry.
HER HONOUR:	That may be suggesting that the wrong inquiry is

the inappropriate inquiry, as it were.

MR GRIFFITH:  Yes. Your Honour, perhaps it might assist my

learned friend, we would be quite happy to bring

on a summons to strike out his paragraphs 17 and 18

of his statement of claim so that would help to get

rid of those issues because that is our basic approach

to them but that is just an indication, Your Honour,

of one way of getting to the same result. Other

than that, I do not know whether I can further assist

Your Honour.

SlTll/11/SH 123 13/1/89

Queensland

HER HONOUR:  I think it may be that the question is with

Mr Davies. Perhaps - we have spent a fair time

and do not seem to have made any progress or any

definite progress - I should say this to Mr Davies,

I think: as at the present time, I would be minded

to say that if there is in fact a live contention that

the validity of the regulations is dependent upon the
prohibition being necessary or upon there being the

only consistent measure for protection - well the

only measure consistent with protection which seems

to be implicit in 2 - I would refer those as questions
to the Full Court. At this stage, I think they do

raise quite definite questions of law.

MR DAVIES:	Yes.
HER HONOUR:	However, if there is some way of crystallizing the

issue which is in different terms, then I do not

see why, along the inappropriate line, as it were,

there is any necessity to pursue those issues, if

you accept that a question can be formulated which

is determinative of validity.

MR DAVIES: Well, that, in itself is helpful, Your Honour, from

our point of view anyway, that if I do obtain instructions,

I could attempt to formulate a question along the lines

you have suggested.·

HER HONOUR:  And if that is seen as the appropriate question -

your solicitor may wish to think about it further.

There is, then, this question: is it

capable of evidence and, I suppose, that really is tested by an objection to the evidence, is it not? That is the way such a question is tested, is it not?

MR DAVIES: Yes. Without that, all I can do is keep repeating

that we want the opportunity to adduce evidence on

the question.

HER HONOUR:  Yes. At this stage, I would not be minded to have

that question referred without some concrete piece of

evidence which is said to be inadmissible for whatever

reason. I mean, it has to be said to be inadmissible,

does it not?

MR DAVIES:	Yes.
HER HONOUR:	Does that clarify things for you, Mr Solicitor, to

any extent?

MR GRIFFITH: Yes, it is all progress, Your Honour. We still

would submit, Your Honour, that the matter should not

be remitted, even if the question is derived, until

the Full Court has considered the validity

SlTll/12/SH	124	13/1/89
Queensland

of the proclamation and we

would still submit, Your Honour, that the issue

of particulars should be regarded that Your Honour's

order is in suspense - not still running.

HER HONOUR: Well, when would anybody intend to do anything

about it, I suppose, is the - - -

MR GRIFFITH: Well, Your Honour, to us the conclusion is

inescapable, that.the whole question of particulars

would have to be looked at afresh when we have

identified the issue.

HER HONOUR:  How long would it take you? Do you wish to get

instructions because that does seem to be the next

point, does it not?

MR DAVIES:	I would expect to have them on Mone -r, Your Honour, sometime on Monday, by the end of Mor_ :3.y.
HER HONOUR:	When would you expect to have the matters relating

to paragraphs - I think they are 3 and 5 - in the

competing stated cases sorted out?

MR DAVIES: Well, I would hope by then probably too, by the

end of Monday, Your Honour.

HER HONOUR:	Would you be in that same position?
MR GRIFFITH:	I should not expect so, Your Honour. Firstly,

I understand my learned friend and I are both on

holiday but, Your Honour, it does involve, I gather,

that my learned friend's instructing solicitor was

there and made notes. Now, I have no knowledge of

what corresponding notetaking may have been had on

our part. Now, if a version is presented to us, it

would be necessary for us to make inquiries of the several people who were there to ascertain whether or not the version can be accepted. We would expect

that, in principle, there would be no problem but we

would still have to check it and I would have thought,

to be realistic, Your Honour, it would be a matter

of chasing people during the holidays and it might easily take a week, even with fax machines and the

like. We have not got any version except the one

paragraph I referred to in the official report but

we would certainly do our best to verify it, Your Honour,

but just the mechanics - - -

HER HONOUR:  Yes, I understand.

SlTll/13/SH	125	13/1/89
Queensland

MR DAVIES:	I am sorry, I am just a bit concerned that we do not let the matter go much longer.
HER HONOUR:	Yes.
MR DAVIES:	I just wonder whether if it were left until say,

this time next week.

HER HONOUR:  Or today. I am'happy to sit on - but it will not

solve it today.

MR GRIFFITH:  Your Honour, the problem is that when we have

these one day hearings, it takes three days of your

holidays. It is just how it works and, really, it

is effectively saying that we all go back to work

full-time. It seems - it is very difficult to just

say, "Next Friday", Your Honour. Perhaps it would
be better for it to be done as soon as possible and

then Your Honour notified that we are ready. We will not delay it but one problem, Your Honour, of today's proceedings being protracted is, because of the nature

of the holiday period, I could only speak to my
learned friend on the telephone yesterday about this

issue of our new version of the case and then, we

spoke again, briefly, this morning. We are in the

holiday period, Your Honour. It is only possible

to do so much but that being said, Your Honour, we

will wait with due despatch but it is up to the

plaintiff to produce something and we will verify

it as soon as we can.

HER HONOUR:	Yes.
MR DAVIES:	But, could I just finally urge that we have a fixed

date.	I would invite Your Honour to suggest a fixed
date and if not Friday, perhaps Monday the following
week.

HER HONOUR:  At this stage, Mr Davies, I am minded to put

particulars completely to one side.

MR DAVIES:  If it is that space of time, we would not be

concerned about that.

HER HONOUR: Well, no. At this stage, I am minded to put them

completely to one side in this sense: that if there

is a remitter it is wholly inappropriate that there

would be a remitter with an order for particulars

wholly unrelated to the remitted question and, on

any view, the particulars sought bear no relationship

to the questions that you would seek to have remitted.

SlTll/14/SH	126	13/1/89
Queensland

MR DAVIES:  We would not agree with that, Your Honour.

HER HONOUR: Well, they are not specifically directed to

those. The material may be relevant to the questions

but the questions sought by the particulars do not

marry up with these questions.

MR DAVIES: Well, we could endeavour to persuade Your Honour

that they do, Your Honour, by taking Your Honour

through them which we will not do this afternoon

but we would like, at some opportunity if, in fact,

the particulars remain with Your Honour, to endeavour

to persuade Your Honour that they do. So, for our

part, we certainly would not accept that they do

not.

HER HONOUR:  Yes, very well. I would still be minded to leave

them to one side -

MR DAVIES:	As Your Honour pleases.
HER HONOUR:	- - - at this stage because if there is a remitter,

I think that issue, the issue of particulars, is

better dealt with in the context of the remitted

question by a remittee court.

MR DAVIES:  Yes.

HER HONOUR:  But, it does seem to me, bearing in mind that I

have said if paragraphs 17 and 18 are put forward

by you as bearing on validity in their terms, that

they would be stated cases, that they would go as

questions in a stated case. It does seem to be

this; can you formulate a question something like

the one I have suggested which you will accept as

determinative of the issue of validity? Can the

Corrnnonwealth within a short time thereafter formulate

the question which, in response to that question which
they say precludes any evidence being led on that issue

because they seem to be the two issues that are around,

do they not? Are there any others really, around?

MR DAVIES:  No, Your Honour. The other one on the first

question in the case stated. Well, my learned friend

and I will endeavour to do something between ourselves

but they are the most urgent ones.

HER HONOUR: That is not an issue. All right, could I suggest

that you do your part by Thursday of next week?

SlTll/15/SH	127	13/1/89
Queensland

MR DAVIES:	Yes.
HER HONOUR:	Would you be able to do your part at all during the holidays?

MR GRIFFITH:  At once, Your Honour. We are all connected with

fax machines and we will do it as soon as there is an

opportunity.

HER HONOUR:  Could you do it by the Tuesday of the following

week?

MR GRIFFITH:  Yes, we can do that if we get it on Thursday.

Yes, Your Honour.

HER HONOUR:  Could they be provided to - is there some way

they could be provided to the Registry of the Court

in advance of any hearing date.

MR GRIFFITH:  Yes, Your Honour.

HER HONOUR: Would the parties object to that? I mean, I could

well understand why you might object to that but if

that - - -

MR DAVIES:	No, not on our part, Your Honour.
MR GRIFFITH:	No, Your Honour, but when I say yes, I mean there

might be a problem about this statement of facts

because we will have to go and ask other people but

we will do that as quickly as we can.

HER HONOUR:  Yes, but there is no issue about the terms of the

first question, in any event, is there?

MR GRIFFITH:  No, it is just this question of the statement of

fact to go in as to what happened in that hour at the

meeting.

HER HONOUR:	Yes.
MR DAVIES: Well, yes, that is right.
MR GRIFFITH:	But we think that could be sorted out, Your Honour,

because it happened in an hour and both parties had

representatives there. There should, really, be no

problem to get it.

HER HONOUR:  Is there some way we can then look at the matter

without everybody travelling backwards and forwards?

MR GRIFFITH: That is a problem, Your Honour, in that we - - -

HER HONOUR: If I go to Canberra, is it possible - - -

SlTll/16/SH	128	13/1/89
Queensland

MR GRIFFITH:  Sydney is just as convenient this month,

Your Honour.

HER HONOUR: Well, you say that but I do not hear Mr Davies

saying it.

MR DAVIES:  It is as convenient as Canberra if it is this

month, Your Honouh,

HER HONOUR:  No, I was suggesting if I go to Canberra, is it

possible to have a video discussion of the matter?

MR DAVIES:  I see. I understand, from a practical point of

view, that it becomes - - -

HER HONOUR: Sort of an in chambers discussion, rather than

a formal hearing.

MR DAVIES:	We would be delighted with that course, Your Honour. I just understand, from a practical point of view, that
it is very expensive to put on for one matter but, if that is not a difficulty for the Court to put it on - - -

HER HONOUR: Well, it probably is.

MR DAVIES: ,I simply say that because the Chief Justice or

someone mentioned to me at one stage when we were

talking about video links with Brisbane, about the

expense of putting it on for fewer than

a certain number of matters.

HER HONOUR:  Yes, well, then, I think that probably disposes of that idea.

(Continued on page 13~

SlTll/17/SH	129	13/1/89
Queensland

HER HONOUR (continuing): If I could have all the documents, if

any have arisen and passed between you, as they - - -?

MR GRIFFITH: Yes. Well, if my learned friend sends to the

Registrar his draft at the same time he sends it to

us, we have no objection to that, Your Honour,

and we would respond quickly on the draft questions
and then we have just got this statement of fact
which perhaps is by the by because that is a matter

of just us agreeing on it and we should expect

to do that.

HER HONOUR:  I think then we will have to list it again, will we

not? The 27th, is that all right? And on that

day then if there is no agreement on the facts,

I will certainly state a case on the first question

and if there is still in issue questions relating

to paragraphs 17 and 18.

MR GRIFFITH:  Your Honour, I think, think the 26th is a holiday,

Australia Day. Could Your Honour make it the

Wednesday and then we will get it done a bit earlier?

HER HONOUR: Certainly. That is the 25th. You will have it

all - well, you will have most of it done, will

you not?

MR GRIFFITH:  Yes, Your Honour. And no doubt my learned friend,

if he has his questions ready earlier, will fax them

down earlier.

HER HONOUR:  Can I just be clear on this: there can be - I have

confused myself. There can be no question as to

necessity to deal with those particulars for the

reference of any question to a Full Court, can there?

MR DAVIES:	No.
HER HONOUR:	I mean, even though you keep saying it is relevant

to that issue, of the questions that are in prospect

for reference to a Full Court, there can be no relevance

of any particulars, can there?

MR DAVIES:  It is only relevant to the trial. I am not suggesting

it is relevant to what goes before the Full Court.

I do not think it is, at the moment, relevant to any -

certainly not to the question which we have put in the

case stated. I do not think that we would suggest

that further particulars are going to be vital to it.

We were looking primarily, of course, to an early trial

of at least the second question, that is the one which

we have been attempting to formulate, of 17, 18 and

19 of the - - -

HER HONOUR:  And that you accept now that you have some onus in

relation to that question?

MR DAVIES: Well, no, that is not right in the sense - I mean, by

the way in which you phrased that. In the end, I think

S1Tl2/l/PLC	130	13/1/89
Queensland

all we are doing is accepting the reality that a

trial judge determine something on the balance of

convenience and that in the end, in a trial of fact,

onus does not emerge as something of great importance.

I do not think that we are accepting, in the trial,

and with respect to the question of particulars and

negative pregnants and so on, that we carry an onus

In other words, I do not think we are conceding

at any stage that there was not a negative pregnant

or anything of that kind. All we are doing, I suppose,

is endeavouring tp accept a formulation which is

acceptable in such a way as to have an early

determination of fact on that question.

HER HONOUR:	If you go to question 3 in your paragraph 19, whichever way that question ultimately is framed to
take account of the abstract negative in the legal
formulation, how - I really do have this difficulty.
I do not see how any of the matters you adverted to today bear on that question - any of the matters you adverted to in relation to particulars. I can
see how there is a necessity for information to be made available to you by the Commonwealth in terms
is on the basis of one might expect that the
of the reasonable conduct of this matter but that reason to suppose that you have that information
and its availability would make the conduct of the
matter more efficient.
MR DAVIES:	No, we were not talking about that so much, Your Honour.

What we were saying is that, for example, the precise location of an endangered species of universal

importance, or whatever the phrase is, would be

relevant to the question of what could reasonably

be considered or what is appropriate or inappropriate

for the conservation of that part of the forest.

If, in fact, it is suggested that -

HER HONOUR:  You keep going back to "that part of the forest".

MR DAVIES:  It is not uniform in any sense - as we understand

the case, it is not suggested that this part of the

forest has its universal importance for the same

reasons as that part of the forest has. As I

understand it, the particulars which are given to us

so far, some parts of the forests are the habitats

of some species of flora and fauna and some other

parts of other species of flora and fauna. It is

possible, I suppose, that one method of conservation

of the forest might be more appropriate to one part

of the forest and another more appropriate to another

part of the forest.

HER HONOUR:  That is not the question ever involved in question 3.

We are dealing with the proscription of commercial

forestry operations.

MR DAVIES: Completely, yes.

S1Tl2/2/PLC	13 1	MR DAVIES, QC	l'i/1/P.q
Queenti lar1d

HER HONOUR:  Completely, and the question is whether

that cannot be said to be appropriate.

MR DAVIES: Quite.

HER HONOUR:  And perhaps that is whether that is

inappropriate.

MR DAVIES:	Yes.
HER HONOUR:	But I do not see why that brings in questions of delineation, identification that you referred
to today, identification of natural heritage. geological or geophysical formations which you
were dealing with today.
MR DAVIES:	Can I start by taking Your Honour to something

which you said in RICHARDSON? You said:

a law which proscribes activities which

pose no threat to the qualities or

features which give the land the

characteristic that it may be, or may

contain, a world heritage area, is not

one which can be said to be a law

with respect to external affairs.

And it may be that a law which totally proscribes forestry operations may be - different questions may

determine whether it is appropriate to one part

of the forest from those which determine whether

it is appropriate to another part of the forest.

Those questions being determined by what exists

in one part of the forest in the nature of

flora and fauna and what exists in the other.

So, it may well be that at the end of the day

a court might say as a matter of fact that the

prohibition on commercial forestry operations

is totally inappropriate - - -

HER HONOUR:	To what?
MR DAVIES:	- - - to one part of the forest but appropriate

perhaps to one small area of the forest down

on the left-hand end or something. It may depend

upon what is there. That is why we say the

precise location 6f flora and fauna is of

vital importance to cnat question, a question

which we say should be remitted. I do not

think I can say anything further about it,

Your Honour.

HER HONOUR:  Yes, I understand that. Thank you for that

explanation. You may feel that there is

some necessity to deal with that on the 25th.

I will assume that the question of particulars

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is totally at large, as it were, still on

the 25th.

MR DAVIES:	Thank you, Your Honour.
HER HONOUR:	Any precise orders you want today?

Reserve costs and certify for counsel, we will

note that and deal with that on the following

occasion.	Very well, 25 January at 10 am in
Sydney.	Thank you very much.

AT 4.09 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 25 JANUARY 1989

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