Utemorrah & Ors v The Commonwealth of Australia

[1992] HCATrans 230

HIGH COURT OF AUSTRALIA

In Chambers

MR JUSTICE TOOHEY

No P 18 of 1991

UTEMORRAH & ORS

and

THE COMMONWEALTH OF AUSTRALIA & ANOR

Uternor (vb) l 11.8.92

TRANSCRIPT· OF PROCEEDINGS

·.·~-·

PERTH_·· · :··· ,:

11. 15AM, TUESDAY, 11TH AUGUST 1992

ap2a/bi/ll.16

HIS HONOUR:  Miss O'Grady?

MS O' GRADY: Your Honour, I appear for the plaintiffs in :~is

action.

HIS HONOUR:	Thank you.
MS O'GRADY:	Your Honour should have before you a summons

HIS HONOUR: Just one moment please.

Mr B~ojani?

MR BHOJANI:  If your Honour pleases, I appear for che

Commonwealth of Australia in this matter as first defendant.

HIS HONOUR:  Thank you.

Miss Wheeler?

MS WHEELER:	May it please your Honour, I represen~ the second
defendant.
HIS HONOUR:	Thank you.

Yes, Miss O'Grady?

MS O'GRADY: Your Honour should have before you a summons and

affidavit in support of that summons, plus a further affidavit

sworn on the 31st of July 1992.

HIS HONOUR:	What does the affidavit cf the 31st of July
relate· to?

MS O'GRADY: It outlines the

HIS HONOUR:	That's the affidavit that refers to the
conversation with Miss Spargo, is it?

MS O'~BAPY! No; that's the subsequent affidavit, your

Honour, ):}led on the 31st. The origin.al support.in; affidavit refers. t6. the deaths since the beginning of this year of three

of the senior plaintiffs. It was sworn on the 29th of July.

It was filed with the summons. HIS HONOUR: Yes, I have that.

MS O'GRADY:	A subsequent affidavit was sworn on the 31st of
July.

HIS HONOUR:. I have that also.

11.8.92

Utemor O'GRADY

a._;:::2.:l./bi

MS O'GRADY: Sir, the application is really quice si:nple. 'The

plaintiffs are concerned that. the cause of action ::--,ay

gradually disappear before their eyes·- the subject macter of

tte litigation - because of the nlli'1lber of deaths · which ha·,.,-e

occurred amongst older members of the three tribal groups

since 1987, and in particular since the beginning of this

year.

HIS HONOUR:  The problem I have with the application is t.::1at

I'm not sure into what category precisely it fall~. You see,

it seems to me that there are various possibilities open i~ a

si:uation such as this given :he rules. One is that the

8a~:er re~ain with the High Cour~. and in the ordi~ary cc~=2e

the court might be asked to appoint someone to take evidence in the way that is contemplated here. Another way, and the

mor-e usual way, would be for there being questions of fact involved to remit _the matter to either the Supreme Court of

Western Australia or the Federal Court and that court then

make orders appropriate such as an order for the t:.aking of

evidence. But this application seems to me to fall somewhere
between the two.

I mean, is it contemplated that the matter will rerr.ain with the High Court for the hearing of the action, which would be a most unusual course, or is it contemplated that the

mat.tar be remitted in its entirety, at least for the purpose of fact finding rather than -che way that the Mabo case was

dealt with, in which event it seems to me it would be a

.	mat.ter for the court to which the hearing is remitted to
decide whether it should make orders for the taking of evidence in the way that is contemplated here?
MS O'GRADY:  Well, it's the latter course that we're seeking,

your Honour. Initially it was intended to make an application

to try these facts without pleadings or to hear these facts

without pleadings. Because that hadn't been done before the

latter course was taken or it was proposed that the whole matter - and it·' s the intention of that application in that

summons._-~ be referred to a single justice of the Federal

court," but that in the first instance only the evidence of

_ these plaintiffs whose evidence is in our view at risk should

be taken and then subsequently incorporated into the record of

trial atan appropriate date.

HIS HONOUR: But if ~·m to make or if a justice of this court

is to make an order remitting the matter either to the Federal

Court or the Supre~e ~ourt, and there may be questions as to

which is the appropriate court, it seems to me a bit odd that

I should cut across that remitter by making an order as to how

the sum of the evidence is to be dealt with. Surely that must

be a matter for the court to which the cause is remitted?

11.8.92

Utemor

ap2a/bi

ViS O' GRA:i)Y: Is your Honour refer~ing t:.o the app:::.ica. tio;-i r:: ..... -....- .:...v.:..

location?

HIS HONOUR:. No, no, I'm referring to what the applica:ion

seeks to do. I~ says that:

"The matter be remitted forthwith to a justice of

the Federal Court for the purpose of hearing at .

. . . the evidence."

Now, that leaves a question mark as to what happens to the evidence thus taken. I mean, does it come back t:·0 t.!'li s

court or is it then within the Federal Court fGr :~e ~~~~:~e

of the hearing or what?

MS O'GRADY: Well, we would envisage, sir, that it would - -

that the matter would be then with a single justice of i:he

Federal Court for the purpose of trial. And that:' s implicit

in our - - The alternative course of action would be that if

we don't succeed on this application this morning we would be

seeking that your Honour would - - that we would give notice

to this court to have the matter set for trial.

HIS HONOUR:  I don't follow that. What do you mean?

MS O'GRADY:  Well, it's a question - - Ultimately it's a

question of urgency and, we say, of justice and equity;

that it's within the discretion of the court to say that the

cause of action must be preserved - - that the subject matter of the litigation must be preserved. And we say that that subject matter is presently at risk with the frailty and age

{sra)	of these named~- first and second defendants are objecting, and I understand Now, if the situation is that the
this morning that both defendants have withdrawn their consent
from this application succeeding, then it's not necessary for
pleadings to be closed for the purpose of taking these
particular plaintiffs I evidence. But if in the view of the
court it's not· possible to proceed to trial at all without pleadinga having been closed, then we would say that the fact
that nd~'..defence has yet been filed entitles us to set it for
trial~,~· It's a question of urgency. The question of
preserving. - that subject matter is · the cverwr.elmi::,;;
consideration. And how it's dealt. with: - - I mean, the type
of order which is made by your Honour is really open to
negotiation. It would be sufficient for our purposes for it simply to be remitted to a single justice of the Federal
court.
HIS HONOUR: Well, I understand that. As you know it's not
the practice of the High Court to embark upon trials of fact -
MS O'GRADY:  No.
11.8.92
Utemor

c.:;:2a./'!Ji

HIS HONOUR: - - and these ma-cters are ord2.narl..LY remitt:.ed

either to the Federal Court or to a Supreme Cc~rt of a State.

Ar1.d in the ordinary course I imagine that's w:i.a-c would happen

here. T.here would be an application for a remitter and the

only question,. that would arise I suppose, if there was a

question, is should it go to the Federal Court or should it go

to the Su~reme Court of Western Australia.

MS O'GRADY:  Yes. Well, our answer to that is that it should

go to the Federal Court.

HIS HONOUR:  Yes; I appreciate that because that is

MS O'GRADY:  What we've asked for.

HIS HONOUR: - - obviously envisaged here. But what I'm

suggesting to you, Miss O'Grady, is that this application cuts

across all that by not asking for a remitter in the general sense, not asking if the matter be placed in the hands of either of those courts, and at the same time asks that an

order be made as it were, directing a justice of the Federal Cour~ to take evidence as a matter of urgency. That doesn't

seem to me to be the sort of order that the court would make.

MS O'GRADY: Well, with respect, your Honour, I can understand the point you're making but I don't see why your Honour can't

make that order for that underlying purpose.

HIS HONOUR: Well, what am I to do? Direct a justice of the

Federal Court, unnamed, to take evidence in a matter which has

not been remitted to the Federal Court?

MS O'GRADY:	Well, it does ask that the matter be remitted,
your Honour.
HIS HONOUR:	They've asked that it be remitted for the purpose

of hearing at . . . . . In the ordinary course why should not there be a summons or an order that the cause, that is, the c.ausa that arises out of this statement of claim, be

rernitted~~to one or other of those courts and then an

application made - - -

. . : ... .:::_ ~:

11.8.92

Utemor	O'GRADY
· :.-:2/ra::/ 11. 2G

HIS HONOUR (Continuing) : - - - ··then an application made to

that court for a direct.ions as to how the evidence is to be taken and where there's an obvious need for evidence to be

recorded as a matter of urgency that that be done.

MS o' GRADY: Well, the answer to the question, the

explanation, is that initially it was understood that this

order would be made by consent and that it would not be

necessary to close pleadings before this particu,lar evidence was taken. In other words, I suppose it's equivalent to

taking the evidence on commission - -

HIS HONOUR:	Yes.
MS O'GRADY:	- - and then incorporating it into the record

of ... (voices superimposed) ...

HIS HONOUR: I understand that but in that event - - I mean, a

new order could be made appointing anybody really to take the

evidence on commission, except that sensibly if the matter - -

if the cause is going to be remitted to the Federal Court then clearly enough that's then a matter for the Federal Court to decide which judge ought to take the evidence - -

MS O'GRADY:	Yes.
HIS HONOUR:	- - presumably on the basis that that judge is

the judge who is going to hear the matter.

MS O' GRADY: Yes, well, I mean, there is no reason why the

order can't be made- in those terms, in our submis.sion, your

Honour, that you simply remit it to a single judge of the

Federal Court.

HIS HONOUR: Well, I can do· that - -

,•

MS O'GRADY:	For further directions.
HIS HONOUR:	- . - if that's thought appropriate, but then the
order that the witnesses be examined as a matter of urgency

must be. a;.;,.matter for the Federal Court bench.

."\•~·.:

MS O'GRADY:  I accept that, your Honour. I mean, that's - -

HIS HONOUR: Well, really what are you now asking me - not to

make an order in these terms but simply remit the matter to

the Federal Court?.

MS O'GRADY: Well, it's a question of convenience. I mean,

obviously, if your Honour feels that to make the order in the

terms sought in the summons is to cut across another

jurisdiction and is unwilling to do that obviously it can't be

done. Our aim is to protect the subject matter which is

disappearifig befor~~ur eyes - -	·
11.8.92
Utemor	=

.... ..._ ': 1........,-1=

............. .t..- / ,.l;.J..

HIS HONOUR:  Yes, I can see that.

MS o' GRADY: - - and if your Honour is prepared to make an

order to remit it to a single judge of the Fede~al Court chen

that will be sufficient to our purposes; we will take it up

with that justice.

Hrs HONOUR: Obviously I can't make an order that the matter

be remitted to a particular judge of the Fedei;-al Court. I

mean, all I can do is. remit the matter . to the Federal Court

itself and then it becomes a matter for that court to dec:.ermine which judge is going to be available to take the evidence and whet.her that judge. is the judge, as one 1--,ould expect., who ultimately is. going to hear the matter. If you

look at, for instance, the order that was made Mabe by Chief

Justice Gibbs it - - Have you seen that order?

MS O'GRADY:	I've seen the order your Honour made in chaJT1bers
in Mabo.	I have not seen - -

HIS HONOUR: The order I made in chambers I think was an order
empowering the Supreme Court of Queensland to make orders for ~~end~ents to7 parties and pleadings. Some question had arisen

as to whether the remitter empowered the Supreme Court of

Queensland to do that, but the original orderof remitter was in

these terms:

"It is ordered that all issues of fact raised by the

pleadings, particulars and further particulars be

remitted to the Supreme Court of Queensland for
hearing and determination."

Ar1d then there were certain orders made about the filing of pleadings and so on, but that's the order that would

ordinarily be made in cases like this. It's complicated

perhaps here by the fact that there are no defences on the record but I don't think the plaintiffs should be - - if the matter is one of urgency should be prejudiced by that - -

MS O'GRADY: Exactly.

:._.,.,_.::

HIS HONOUR:  - - if it's otherwise proper to make an order

for remitter· a~ this stage.

MS O' GRADY: Well, those are our submissions, your Honour,

that - -

HIS HONOUR:  Why should it go to the Federal court rather than

the Supreme Cou~t of Western Australia?

MS O'GRADY: Well, because the statement of claim is drawn in

terms that .. the Commonwealth is properly joined as a party and

that the trial will involve and the final judgment will

involve questi-ons of interpretation of commonwealth law. I

mean it's - -

11.8.92

Utemor

.. :...,_, .. ,~ ,··- ~ 1- +:

HIS HONOUR:  Three-quarters of the states are dealing with

q1...:es tions of Commonweal th law every day of the week. I F.,ean,

if the Commonwealth were not a party this matter could no: be heard in the Federal Court except by way of remitter, could

it?

MS O'GRAD:Y: No; that's correct, your Honour, but, I mean,

that argument - - we distinguish this situation from Mabo.

The claim here is far more widely drawn and invqlves a great

many more complicated questions of interpretation of the - -

~er exarnple, Western Australian constitution in the f~rst

place and - -

EIS HONOUR:  That might be an argument for going to the

Supreme Court bf Western Australia.

MS O' GRADY:	I mean, we just rely on McCauley' ,3	case, your
Honour, and - -

EIS HONOUR:  On - ?

ViS o' GRADY: McCauley v Hamilton Island Enterprises 1986.

=~·sin the Rules.

HIS HONOUR:	You rely on it to what end?
MS O'GRADY:	To attract federal jurisdiction.  Simply to say
that - -
HIS HONOUR:	There is· no doubt, I think, under the Judiciary

Act that the Commonwealth ... (noises superimposed) ... under

w'.::atever it is - - section 44 (2) (a) that the matter can be

remitted to the Federal Court but on the basis that it can be remitted to either the Supreme Court of Western Australia or the Federal court. The question then arises as to which court it should be remitted to and that generally turns upon the balance of convenience

MS O'GRADY:	Yes:
HIS H0N0OR: - - which is a very broad expression, and that's

scmething,'.~ on which I should hear from counsel for the

defendants.· It may be that as t.etweerr .. themselves there is no

objection to the matter going to the Federal Court but let's

say that one is heard to say it should be the Federal Court and the other is heard to say it should be the Supreme Court

of Western Australia.

MS O'GRADY: Well, it's

HIS HONOUR:  Perhaps I won't - - I won't ask you to respond to

that until I know what the position is, Miss 0'Grady.

11.8.92

Utemor bx2/mf ·

MS O'GRADY:	Well, we do say that anyway, your Honour, yes.
HIS HONOUR:	Perhaps I should hear from Mr Bhojani and r-:iss

Wheeler at this stage.

Mr Bhoj ani i on the understanding that the summons is

really a summons for remitter of the matter at large, so far

as it involves findings of fact, have you anything to say about remitter to the Federal court as against the Supreme Court of Western Australia?

MR BHOJA.1\JI:  No, your Honour. The Cornmonweal th' s posi tic:1 on

that issue is that it is neutral. The Commonwealth's posi~ion

is that both courts would be truly effective to deal wi~h the

whole of the matter·. However its submission this morning is

that the matter should be. remitted to one or other of those courts, in total, not just as was done in the Mabo case in

terms of issues of fact with the High Court retaining some

sort of control over the matter, but in total, and the whole

matter should be remitted to either the Federal Court

HIS HONOUR:	For trial and determination - -
MR BHOJANI:	For trial and determination - -
HIS HONOUR:	-  - on issues of fact as well as law?
MR BHOJANI:	As well as law.
HIS HONOUR:	And the matter - -
MR BHOJANI:	Come to this. court - -
HIS HONOUR:	- - depending on th~ outcome
MR BHOJANI:	- - by way of ·an appeal
HIS HONOUR:	- - could come before the High Court by way of
appeal •
MR BHOJ.ANI:. Yes, your Honour.

. ·-.:.--•,

HIS HONOUR:  What are the reasons for that?

MR BHOJANI: Well, · your Honour, as my learned friend has

pointed out, it is a. very widely drawn case in terms of the statement of claim and perhaps I could just interpose there in terms of your Honour's question to explain that my instructions are that no defences have been filed because the

plaintiffs have indicated that they were going to amend the

statement of claim extensively,· and my instructing solicitor

has contacted the plaintiff's solicitor by letter of the 4th

of June indicating that no defences would be filed until the

statement of claim had been amended, and that is the sole

11.8.92

Utemor BHOJANI

(Continued on page 9a)

x;:2/:nf

reason why the defences have not been filed, your Honour. ~uc

in anticipation of an amended pleading and an a~e~c8a statement of claim, which even in its present form .:.s \i1;::y

widely drawn - - there are very large areas of factual disp...:t:e

that are likely to\arise in this matter and it is appropriate in view of the High Court's decision in the Mabo case, which

has effectively clarified at least to a large extent the law

in this area - - there is no reason for the High Court, in the

Commonwealth's submission, to retain control ove~ the matter in any shape or form. It should be treated as any other

matter that can be dealt with by a superior court and brought

up to the High Court by way of an appeal if that's necessa~y.

There are also practical difficulties, your Honour, that

arose in the Mabo case where part of the matter is remitted a~d then there are applications brought by way of

interlocutory applications of the type, for example, whether

the Supreme Court of Queensland in the Mabo case had -

whether Justice Moynihan had power to allow an amendment to

pleadings and the like.

HIS HONOUR:  That's why the matter came back, and I happened

co be the judge who heard it.

MR BHOJANI: Yes, your Honour. And to avoid those sorts of

difficulties, sir, the whole thing and the whole case, whole matter, may be dealt with appropriately in one forum. Ic is submitted that in view of the Mabo decision, which has clarified the law, the appropriate order is for the whole matter to be remitted to either the Supreme Court or the Federal Court as the court deems appropriate, and certainly the Commonwealth is neutral in terms of which court the matter

should go to . 1

HIS HONOUR: I suppose the·argurnent against that - and I just

raise it to hear what you have to say about it - is that on a

matter that is as wide-ranging as. this is, where a hearing

could go on . for a long time, the trial judge may make

decision~ .. · as to admissibility of evidence which turn out	to. - . ..:. ·:·iwhich are overturned ultimately. For instance, the	trial judge may proceed on a particular footing as a result of
which ce~tain evidence is excluded - - -
11.8.92
Utemor 9a

ad2a/bi/ 11. 3 6

HIS HONOUR (Continuing): - - - evidence is excluded and may

be later held to have been wrongly excluded.

MR BHOJANI:  Yes, you_r Honour.

HIS HONOUR: And the cost, both in human terms and in

financial: terms, of then going back to a further hearing is a

factor to be taken into account. I mean, no doubt it' s a

factor to be taken into account a whole range of cases really,

except it looms rather large in a case like this.

MR BHOJANI:  Yes, your Honour.

It may be appropriate that that could be dealt with by

the court that the matter is remitted to by way of appointing

sc::r,e sort of commissioner, so that perhaps that court could

appoint or take evidence in some sort of fashion wt.ere, no-cwithstanding objections to admissibility, the matter is put forward on an alternative - - or evidence is taken on an

alternative basis and objections are noted.

HIS HONOUR:	I think that is one of the suggestior.s that has
been canvassed.	Yes, I understand what you' re saying, Mr
Bhojani.

Is there any problem about remitting a matter in 1..;hich

pleadings are not. closed?

MR BHOJANI:	Not from the Commonwealth's perspective, your
Honour.
HIS HONOUR:	No;  but what about the Judiciary Act(voices

superimposed) ...

MR BHOJANI: It doesn't seem to contemplate any - -	It
certainly doesn't envisage any particular stage at which
HIS HONOUR~ No;	it's a question of whether there is a matter
I suppose; to be remitted whetheryou can saywhen there's only a
statemen~.~f claim that there is a matter.	, ,.c-,•

MR BHOJANI.:-. Yes.. Well, I - -

HIS HONOUR:  I think it seems to me that you can say that, of

the statement of claim that it raises a matter.

MR BHOJANI: Yes' sir,... it does.

HIS HONOUR: Yes; thank you. Yes, thank you, Mr Bhojani.

MR BHOJANI: If your Honour pleases.

11.8.92

Utemor	10
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HIS HONOUR:	Miss Wheeler, what is the attitude of the second
defendant?

MS WHEELER: Insofar as the question of the appropriate court

is concerned, your Honour, I would seek to submit that the

remitter should be to the Supreme Court of Western Australia,

and I seek to develop that in due course.

So far as the remitter is concerned, we would put the

possibilities on these two alternative bases·. In our

s~bmission this court could either retain co~trol of ~he :matter until such time as t:he pleadings are clarified. And

chat harks back to your Honour's question as to whether there

is a matter than can be remitted. Our submission is that as a

matter of law there probably is one but it's awfully nebulous

at the moment. The matter could then be remitted.

Alternatively, our submission would be, that the whole

of the matter that involves questions of law and questions of

fact should be remitted to the appropriate court. And the

reason for that lies, at least partially, your Honour, in the

state of the pleadings at the moment.

I have prepared some written submissions which it seems.

may be of some relevance now, and perhaps if I could ask your

Honour briefly to read them now. They relate in part co

opposing the application for examination of witnesses, but the submissions there made are relevant to this question, in our submission.

HIS HONOUR:	Do other counsel have a copy of. this, Miss
Wheeler?
MS WHEELER:	They do, your ~onour. Yes.

Now, your Honour, the point of the submission at this

stage is that we, like the first defendant, had understood

that the statement of claim was, ext:ensively revised, partly in

prepared:·. ·a preliminary list of observations of some seven the ligh~ of this court's decision in the Mabo case. We had	pages· on'·"the statement of claim pointing out what we saw as
the defiCi'encies. And I should foreshadow at this point that
if the statement of claim were not· reasonably clarified so
that we knew what w~ had to meet we would be seeking perhaps
to strike out parts of it, or seeking orders for amendment or
something of that kind. So that we' re not in a position to
plead to the statement of claim as it now is and that's why,
in our submission, there's a very nebulous matter to be
remitted. There are also, . as your Honour will see from the outline of submissions, questions of potential joinder of
other parties and matters of that kind. And, in our
submission, for those reasons the whole of the matter would be
11.8.92
Utemor 11

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appropriately remitted to another court to control tr.e
proceedings.

As to the appropriate court, or alternatively of course this court could retain control of the proceedings, but that delays the question of the hearing of any evidence; as to the question of the appropriate court, your Honour will note that

in those written submissions I have briefly set out the bases

for the submission that the second defendant makes. I don't

know if your Honour is terribly familiar with the provisions

of the expedited list. That would be t:he only matter that: I

would seek to expand on at this stage.	It is order 31A of the
Supreme Court Rules, an. Amendment which was made in 1990.	Ar:d

-the list has I underscand, in the view both of che court and

practitioners, been very successful in ensuring that cases

can be heard very speedily. It has been used for mesothelioma

victims who are expected to live no more than a few months and matters of that kind. It provides for extensive judicial control over the proceedings from the moment that it's entered

into the expedited list when a party has to set out in

affidavit form the nature of the dispute, issues likely to
arise, reasons for expedition and so on, through to the courts

giving directions as to compulsory conferences, referees'

reports, exchange of memoranda as to issues and so on, which

would provide some degree of protection for a defendant if, for example, it was thought necessary to examine some of the plaintiff's witnesses in advance of the closure of proceedings

- - of pleadings. And that's one of the reasons why we would

consider it particularly appropriate to this case.

HIS HONOUR: Did the order dealing with the expedited list

give powers to a judge- which that judge would not otherwise

have under the Rules?

MS WHEELER:· ·.Yes. It's expressed to be so far as inconsistent

with the other Rules overriding them. There are also Rules in the Supreme Court Rules about the examination of witnesses in advance- of closure of pleadings and matters of that kind.

HIS HONOUR:  Do you mean examination by the judge or by the

appointment of. someone to take the evidence?

MS WHEELER:  My recollection is either I think, your Honour,

but I couldn't be positive about that. But, yes, as to

directions hearings and so on, the Rules are very - - the

expedited list procedure is very similar to what could be done

under the normal Rules. As to requiring parties to confer and

submit reports and so on it's somewhat more extensive in its

control over the course of proceedings.

I understand that that list is presently well in hand and

there's nothing awaiting a date for which the parties require

1L8.92

Utemor	12
a.::.2/bi
a date and so on.	So that 1,-;ould seem to be certainly a

practical proposition. And our submission is primarily of

course rhat the Supreme Court of Western Australia is the

natural forum for an action of this kind. It would seem on a

reading of the statement • of claim that the action lies primarily against the State rather than the Commonweal th,

al though -the· commonweal th of course is a party and iQvol ves

primarily State legislation and the actions of state

officials.

H:S HONOUR:	Yes.
MS WHEELER:	And those would be our submissions briefly, your
Honour.
n:s HONOUR:	Yes; thank you.

Miss O'Grady, do you want to say anything in response to

what has been said?

MS O'GRADY:  Yes, I do, your Honour.

Just in respect to the submissions which were handed to

us just before your Honour reconvened the court, I hope that tr.e points raised by my learned friend at point 3 have been

dealt with satisfactorily in the affidavit sworn on the 31st

of July. And if it is not satisfactory from the court's

p·oint of view that is because of the prejudice which was

suffered by the plaintiffs when, having had an indication from

both defendants that this order would be made by consent, that

consent was withdrawn and we were not in a position to comply

with the administrative arrangements of the Health Department
of Western Australia.

MS WHEELER: I'm sorry to interrupt my learned friend at this point, your Honour, but she has reminded me of something which

I should have ~~id to your Honour earlier and which I think

perhaps needs to be put on behalf of my learned friend for the

commonwe~lth also.

·.,

There was no indication that either of the defendants

would. consent to this particular application. The second defendant has certainly indicated that it would wish to make

satisfactory arrangements by consent for the hearing of

evidence of witnesses obviously unlikely to survive the trial.

We would still hope that such arrangements could be made by

consent. We're not in a position to consent to an application

at this time.

HIS HONOUR:  Just while you are on your feet, Miss Wheeler,

and in relation to that matter; would the.provisions of the

Evidence Act - - the State Evidence Act allow for the admission into evidence of written statements made by - - -

11.8.92

lJtemor WHEELER 13

z::. 3 /;:-,::

HIS HONOUR (Continuing): - - - of written statements made by a

witness no longer alive at the time of trial?

MS WHEELER: Not in a civil matter unless there had been some

order of the court beforehand, as I understand it, your

Honour. That's my recollection. The provisions of the

Evidence .Act deal with the admissibility of statements by deceased persons in. criminal. matters in certain circumstances

and the Justices Act also. So far as civil. matters are

concerned it's left to the Rules of the supreme court which allow t~e hearing of the evide~ce of witnesses in advance of

the closure of pleadings. My u~derstanding would be that once

that evidence had been heard. it. was evidence in .i:he proceedings. The fact that the witness subsequently died before the end of the trial wouldn't render it inadmissible.

HIS HONOUR: I just had at the back of my mind some provisions which I haven't looked at for a nlli-nber of years now but they

were introduced into the Evidence Act to allow records to be

tendered in evidence by witnesses who gave evidence so long as those records were contemporaneous, and I thought there was

scme further provision that met the situation where a witness was no longer alive at the time of trial and. that the provision,

al though it may have been designed to cover contemporaneous

records, was almost wide enough to allow anything to be introduced - I mean, subject to · obvious safeguards and an

order cf the court.

MS WHEELER: I confess I've only considered that aspect

briefly, your Honour, but my reading of the Evidence Act and

just looking briefly at the rules of evidence, seems to stress

that without an order of the court, without an order of the Supreme Court, saying "This evidence is evidence in the

proceeding" those provisions wouldn't apply in the civil

matters. That may not be correct but it.' s my understanding.

HIS HONOUR: All right.

No~ ... Miss O'Grady? I'm sorry about that interruption.

can w& come back to you?

MS O' GR.ADY:.. Well, we will have to accept, your Honour, that

counsei ar~ at variance in their understanding of what was the situation with regard to the issue of .consent and the making
of this. order. However, to move on to the substance of point

3, I think your Honour can almost take judicial· notice of the fact that the average age· - and I think this is born out by records in the Australian Bureau ·of Statistics - of an Aboriginal male, for example, in Australia is about 45 years of age, and most of these plaintiffs that we are seeking to have evidence taken from are over the age of 60 and as the

original affidavit filed in support of the summons asserts

three of them have already died this year.

11.8.92

Utemor	WHEELER	14
._-.. .. I ,.,._	7~~/,.,..,f'

To return to the matt~rs raised at point 4,

notwithstanding the criticism that the statement of claim is	seemingly nebulous perhaps to my friend, I think that it I s
possible here to get side-tracked by the procedural
requirements of pleadings and that we say that that is not
what's at issue here. It is true that the plaintiff has indicated to both defendants at the time shortly after the time of service of the written statement of claim in April of this year, that there vms an intention to amend that statement of claim for a variety of reasons, but the main ~ne being of
co~rse that the judgment in Mabo was still awaited at the time
a::.d it was obviously going to be necessary to reconsider the
position once that decision had been delivered. However that
was intended as a without prejudice- arrangement between the
parties and of course there is no requirement on the plaintiffs to have to amend the statement of claim. If necessary, nebulous or otherwise, the plaintiffs are prepared to go trial on the statement of claim as it stands.
Whether or not the claim is primarily one between the residents of Western Australia and the State of Western
Australia is open to argument and we say notwithstanding your
Honour's criteria to which I assume your Honour was referring
earlier on the matter of jurisdiction, we say that there is still sufficient matters involving interpretation of the
constitution and Commonwealth law -to make this a matter
arising and to make this whole action of such an inter se
nacure that it would be a departure from the norm to move it
to the State supreme Court rather ·than to its natural forum,
the Federal Court.
HIS HONOUR: Well, you say that, Miss o' Grady, but it really
leaves the question unanswered: What is it that makes the
Federal Court a more natural forum for an action which clearly
raises wide-ranging questions of fact and of law in an action where it:. is said that essentially it's a· claim against the
State of Western Australia?
MS O' GRADY:  It is said that - - it is said by the second
defendant~~- your Honour, but that is overlooking the extent of the clai~.to which it involves, for example, the question of
territorial seas, the title to territorial seas, which cannot
be a matter for the State, and the increasingly large scope
and highly dependent nature of the argument about world
heritage and national parks, which is just inextricably
intertwined with the extensive pleaded question of the
validity or otherwi~e of the Mitchell· Plateau Act
Agreement Act 1972. The question of the Mitchell Plateau
itself is perhaps the testing point of the whole argument because there· it can be alleged tha·t that's a State Act and
having to _ do with State laws it really is bound up
inextricably· with all those other questions which are raised
in the statement of claim.
11.8.92
Utemor_  15
..,. . , /...,-.::
L,,~..J/ .ul-
HIS HONOUR: Are you suggesting that there's any matter likely
to arise in this action - - One could hardly be suggesting - -
11.-8.92
Utemor  16
::;: :.8/:-:'.f/ll. 46
HIS HONOUR (Continuing): - - - hardly be suggesting that the
S~preme Court of Western Australia lacks jurisdiction because if it had jurisdiction by reason of the remitter of course - -
MS O'GRADY:  Of course, your Honour, yes.
HIS HONOU~: - - but that it would otherwise lack jurisdiction
if the matter had been commenced, say, in the Supreme Court of
Western Australia?
MS o' GRADY: Yes, we are, sir. That's exactly correct, your
Hc::our, and r'd refe+:" your Honour to the judgment of His
Honour the Chief Justice Sir Frederick Joraan, in 1946 I thi~k
i c was, in the matter Ex parte King r The· tJnl.'versity of Sydney
which encapsulates, which distills that position precisely.
HIS HONOUR:  To what end?
MS O' GRADY: To the point that even if - - and 1 think that this dovetails in Sir Anthony Mason I s judgment in the. case to
which I referred your Honour earlier, McCauley• s Case, the
Hc.:-nil ton Island case, in that irrespective - - we are not arguing for a moment that the Supreme Court is not capable of having the matter remitted to it properly. What we are saying
is that the more appropriate forum is this because at any time
during the - - and it's implicit in the proceedings that inter se questions will arise and therefore the Federal Court is the appropriate jurisdiction because of what I've been repeating,
that what is going to be required is an interpretation of not only Commonwealth law and the Commonwealth Constitution but
the Western Australia Constitution as well, and Sir Frederick
Jordan said
HIS HONOUR: Sorry - I'm still not clear - - Could I just put
the question to you again:· If this action had been commenced in the Supreme Court of Western Australia is there any respect
in which the Supreme Court would have lacked jurisdiction to deal with the action, as a matter or jurisdiction not as a
matter at: appropriateness or convenience or

. '

MS O' GRADY: · Yes; because ultimately the question must have

arisen.--<""'	t.hat a question of. interpretation of the Western
Australian	Constitution as against the Commonwealth
Constitution	will have arisen. That's why the action was
commenced in	the High.court.
HIS HONOUR:	Yes, thank you.

MS O'GRADY: And not only at one point, and simply, if I might

just conclude, your Honour, with respect· I'd say that point

4. 3 is irrelevant to your Honour's decision and requires no

comment. At point 4 - - as I understand it, and I'm a

11.8.92

Uternor	17
j cb/:-:-~:

stranger to the new expedited cause practice in Western

Australia, it having been introduced since I was practising

here, but I am familiar with the commercial causes list in

Victoria and I presume that it's a similar type of

jurisdiction, and we would say that it's more appropriate from

the point of view of the interest to the plaintiffs that the matter be dealt with in the normal course of events rather

than they.being introduced into a far more - - perhaps this is not quite the right word to use but a· far more commercially

driven list than the way in which they would normally hope to

maintain some control over the process of proceedihgs.

HIS HONOUR: r think the suggestion was that the expedi t.ed

list was not so much a commercial list as a mechanism that. was

designed to bring matters to triaL fairly quickly and to give the judge a more direct control over the course of the litigation than might otherwise be the. case.

MS O'GRADY: Yes; well, it would be the second aspect of that

that we would be seeking to avoid, your Honour, given that - -

I think that the inequality between the parties is so great. in this matter from the outset that any . tendency to lock the

plaintiffs into· a course of procedure which could further
prejudice them,. for example by requiring them in their rather

weakened position to comply· with directions and proceedings for which they might _not be ready to comply, would be

premature.

HIS HONOUR:	Would you agree though that to whichever court
the matter	is remitted there would be advantages in the
evidence of	the witnesses in question being taken by the judge
before whom	the matter is ultimately to be heard?
MS O'GRADY:	That's what we're hoping to achieve, your Honour.
HIS HONOUR:	Yes, very we11 ·. Thank you.
MS O'GRADY:	Thank you.
HIS HONOUR:	Yes, Mr Bhojani?
MR BHOJANr~ Your Honour, may I ... (voices superimposed) ... for

a moment~--· I just want to expressly state- that no submissions

have beerr put· to · your Honour this morning- in respect of the evidence issues arising on the application. on behalf of the Commonwealth as to the appropriateness or otherwise of making

that sort of order, the expedition of the taking of evidence,

and the Commonwealth's submissions relate solely to the issue

of remittal. On my understanding, your Honour did not propose

to deal with that issue of taking the evidence because it was

going to cut across the question of remittal?

11.8.92

Utemor O'GRADY 18

.- -~·-·· --~-- -::.;.·· ...	....;...., ...
... job/mf

-

HIS HONOUR: Well, what are you saying, Mr Bhojani, that you

reserve possibly argument by the Commonwealth that the taking of evidence at this stage from these witnesses may not be an appropriate course?

MR BHOJANI: Indeed, your Honour. In fact that• is the

Commonwealth's position, that until the pleadings are closed

the taking of evidence would be in many senses a wasted and

costly exercise. I notice that my learned friend's affidavit

deals with the issue of costs as being one of the matters as

to why the matter has not been pursued to trial at an earlier

stage and to allow the taking of evidence with the issues not having been defined, so that whoever the evidence has been

taken by has no basis arr.which to rule on i~sues not only of

adrnissibility of evidence but on relevance as to the scope of

the inquiry irt terms. of taking of. evidence - -

HIS HONOUR: Well,· I see that. There's another argument, of

course, that in the case of witnesses who may be in ill health

or whose life expectancy is limited there are countervailing
considerations, but in any event if I am being asked.to remit

the matter to. one or other court I. don't suppose it's

appropriate for me to make comments about· that aspect.

MR BHOJANI: Well, that's why I'd refrain from making

submissions	until it	went to the appropriate court, your
Eonour.
HIS HONOUR:	Well, there are some matters of	importance
arising out of the application.	I need some time	to consider
it.	I will let you have my decision as soon as	I can. It

won't be very long. The court will now adjourn.

'.·,'-.-

11.8.92

Utemor 19