Ward and Ors v Crosswalk Pty Ltd and Ors P67/2000

[2000] HCATrans 675

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P67 of 2000

B e t w e e n -

BEN WARD, JOHN TOBY, JIMMY WARD, RONNY CARLTON, JEFF JANAMA, BUTTON JONES, BEN BARNEY, DODGER CARLTON, KIM ALDUS, MURPHY SIMON, SHEBA DIGNARI, JOE LISSADELL, CHOCOLATE THOMAS and PETER NEWRY

ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

Appellants

and

CROSSWALK PTY LTD and BAINES RIVER CATTLE CO PTY LTD

First Respondents

CECIL NINGARMARA, DOUGLAS BOOMBI, STEPHANIE BOOMBI, ALICE BOOMBI, SANDRA BOOMBI, RITA BOOMBI, HELEN BOOMBI, ROSIE GALLAGHER, DAVID LUAMI, PETER NEWRY, TOM BARNEY, PATRICK BITTANG, BINGLE GUNDARI, CARLTON GEORGE, RODNEY WALMAJA, GREGORY CALWAT, HERBERT ANTHONY, CHARLIE BARNEY, STAN LONG, ASHLEY WILLIAMS, JOCK MCDONALD and DIANNE DINGAL

Second Respondents

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Third Respondent

DELORES CHEINMORA, MATTEN MORO (MARTIN CLARK), VERNON GERARD, DUDLEY BAMBRA, ELAINE JOHNSTONE, ERIC JOHNSTONE, CLARA (LEARAY) MITCHELL, MARY TERESA (TAYLOR), MAY SMITH, MONA WILLIAMS, RAYMOND WILLIAMS, JAMES TAYLOR, VICTOR MARTIN, HECTOR UNHANGO, MANUELLA PURWAN, MARY PANDILOW, KENNY MORGAN, JOYCE EVANS and ROY MARTIN

ON BEHALF OF THE BALANGARRA PEOPLES

Fourth Respondents

THE STATE OF WESTERN AUSTRALIA

Fifth Respondent

KIMBERLEY LAND COUNCIL ON BEHALF OF THE MALNGIN AND GIJA PEOPLE

Sixth Respondent

ALLIGATOR AIRWAYS PTY LTD, PETER LAURENCE ALVIN, OASIS FARMS, C.A. & T. BRADLEY, W.R. & A.J. BROGMUS, J.A. CARETI, L. & M. CONLEY, T. & E. CROOT, C.W. CURTIS, MAURICE DAVIDSON, DALENE N. DAVIES, UTE & HANS DIEDRICKSON, C.C. & P.M. DONE, IAN & COLLEEN DUPE, KIMBERLEY NATIVE -SEEDS, J. ELLETT, B.M. & J. FAIRCLOUGH, STEVE FARQUHAR, JOHN FILE, H.G. GARDINER T/AS UPSTREAM ORD BANANAS, JEFF GOODING & G. HARDING T/AS GOLDEN FRUITS, DOUG G. & E.M. GRANDISON, GUERINONI NOMINEES PTY LTD, NOEL A. & AILEEN M. HACKETT, ROY & ROSALIE HAMILTON T/AS R. & R. PLANTATION, WARRAMINGA PTY LTD, STEVE & CHRYSTABELLE HOWELL T/AS SPEEDY & BOB’S ELECTRICS, MICHAEL & HEATHER HOWELL, HOWARD & LESLEY JAMES, GRAHAM JOHN & SHEILA WEBSTER, KIM G. JOHNSON T/AS ITCHY PALM PLANTATION, G.T. KING & D.P. GAEBLER, J. & P. KIRBY, LAKE ARGYLE CRUISES, LAKE ARGYLE INDUSTRIES PTY LTD, PATRICIA LAMOREAUX, ANTHONY & JULIE LARSEN, J. & J. LEACH PARTNERSHIP T/AS WILF ORD-RIVER PLANTATION, C.R. & S.A. LEAVER T/AS DELESTION RANGE ESTATE, B. LERCH & D. SPACKMAN T/AS BARDENA FARMS PTY LTD, PETER AND BELINDA LETCHFORD, ROBIN & SHANE MACKAY, SUZANNE MACKAY, DIELRO PTY LTD, SHARAL PLANTATION, STEPHEN MASSEY & JULIE KEMP, SHANE & SUZANNE MOORE, CRAIG & GAIL MUIR, J.L. & D.G. NICHOLSON, DAVID OGILVIE, IAN OLIVER, ORD RIVER DISTRICT CO-OP LTD, ADUR PTY LTD T/AS PARKER POYNT PLANTATION, LYNDON & KAREN PARKER T/AS KARLYN PLANTATION, IAN H. & ALMA V. PETHERICK, RONALD M. PORTER, CHRIS & DIANE ROBINSON T/AS ORIA ORCHARDS, R. & J.V. SCHOEPPNER, S.C. & P.M. SHARPE, BETHEL INCORPORATED, KENNETH G. SKERMAN & HILARY E. BRETT, KERRY SLINGSBY, P.J.E. & L.A. SMITH, ALAN J. & JANET A. STENNETT, DAVID THORNEYCROFT, JENNIFER TOMKIN, WAYNE R. & JANICE A. TREMBATH, GREG & JANE HARMAN, FOLLE INVESTMENTS, HELGA WEISS, MERV & TERESA WELSH T/AS FORESHORE FRUITS, TIMOTHY B. & LYNETTE J. WESTWOOD T/AS EMELS ORCHARD, G.S. TURNER & Y.M. WHITEHEAD T/AS GARVON PLANTATION, ALLAN & SUE WILSON, ROD WILSON, WILLIAM R. & J.M. WITHERS, J.L. & S. WOODHEAD, GREG WYNN, JENNY RYMER, CALYTRIX INVESTMENTS PTY LTD, JOHN W. READ, STJEPAN VUK, HOWARD YOUNG, J.L. WOODHEAD, J.S.W. HOLDINGS PTY LTD, EAST KIMBERLEY SPORTS FISHING CLUB, KUNUNURRA RACE CLUB and KUNUNUYRRA WATER-SKI CLUB

Seventh Respondents

ARGYLE DIAMOND MINES PTY LTD AND THE ARGYLE DIAMOND MINE JOINT VENTURE

Eighth Respondents

For Directions

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN AND PERTH BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 9 NOVEMBER 2000, AT 2.35 PM

Copyright in the High Court of Australia

____________________

MR M.L. BARKER, QC:   May it please your Honour, I appear with my learned friend, MS A.M. SHEEHAN, for the appellants.  (instructed by the Aboriginal Legal Service of Western Australia (Inc)).

MS K. WHITE:   May it please your Honour, I appear for Crosswalk.  (instructed by Hunt & Humphry )

MR G.M.G. McINTYRE:   If your Honour pleases, I appear for the fourth and sixth respondents.  (instructed by the Kimberley Land Council)

MR C.J.L.PULLIN, QC:   May it please your Honour, I appear with my learned friend, MR K.M. PETTIT, for the fifth respondent.  (instructed by the Crown Solicitor for Western Australia

MR D.W. McLEOD:   If your Honour pleases, I appear with my learned friend, MR P.L. WITTKUHN, for the seventh respondents.  (instructed by McLeod & Co).

MR K.R. JAGGER:   If it please your Honour, I appear for the eighth respondents.  (instructed by Freehills)

MS R.J. WEBB:   Your Honour, for the third respondent, the Attorney‑General of the Northern Territory.  (instructed by the Solicitor for the Northern Territory)

MR R.M.D. LEVY:   Your Honour, I appear for the second respondent, Cecil Ningarmara and Others.  (instructed by the Northern Land Council)

HIS HONOUR:   Now, before calling on any of the parties can I say where I have got to with this matter and why the parties have been sent the proposed minutes that they have.  My present inclination is that I do not embark today on the determination of Western Australia’s motion for partial revocation even if it is possible, or appropriate, for a single Justice to do so.

I say that because I do not, so far as I can understand it at the moment, consider that the material which has been filed so far identifies with sufficient clarity or particularity the competing positions of the parties in relation to the ground in respect of which revocation of leave is sought.  That is why, subject to whatever submissions the parties may make today, my inclination is to give further directions that are intended to require the parties to define their respective contentions rather more closely than may be done at the moment.

Can I say this further because this may assist the parties in understanding what lies behind the view I have just expressed?  First, as I understand it, the appellants contend that ground 10 raises a question of principle which, if their contentions were accepted on the hearing of the appeal, would require practical working out on remitter to the Full Court of the Federal Court.  I refer in that connection to paragraphs 10, 13 and 16 of the appellants’ submissions in relation to this motion.

It seems to me, and I would want the appellants to either confirm or reject this proposition, that the appellants accept the factual findings that have been made by the trial judge about the way or ways in which the land which might be the subject of ground 10 was or was not being used at the relevant time.  I base that view on what is said in the appellants’ submissions, paragraph 13.  As I would understand it, the appellants are alleging that what is not accepted is the legal consequence which the majority of the Full Court say follow from those factual findings.

Now, by contrast, again, as I understand it, Western Australia says that the ground of appeal, ground 10, has to be met by contentions which descend to detailed matters of fact.  Now, it seems to me that the upshot of that position, which finds reflection, I hope, in the proposed minutes of orders is this:  first, on the appellants’ side it seems to me to require attention to some matters which no doubt the appellants say are now perfectly apparent but which may not be apparent to me.  One, what is the principle or what are the principles which the appellants contend that the majority of the Full Court did apply in relation to the ground 10 land?  So what did the majority of the Full Court do?  Second, what is the principle or what are the principles which the appellants contend should have been applied?

On the other side of the record, presumably, as I understand it at least, Western Australia seeks to support the majority’s decision, but that also seems to me to require articulation by Western Australia of what is the principle or what are the principles which it says that the majority applied just to make sure that the parties are in truth agreed about what it is said that the majority did and, if they are not agreed, where lies the disagreement.

What, fourthly, may not emerge, or perhaps emerge sufficiently, from Western Australia’s present notice of contention and particulars is, first, a statement of the presumably different principle by the application of which the Full Court’s decision can be upheld.  It is a matter of contention and, therefore, assumedly Western Australia is to be taken as propounding some different principle from that which was applied, but, second, it would require also the articulation of the acts, facts, matters and circumstances additional to those referred to by the Full Court which support the result for which Western Australia contends.

Lying behind both of those sets of problems there is, of course, the a priori or, rather, the logically anterior question of specifying the land to which ground 10, on the one side, and the contention, on the other side, has application.  Now, I would understand that in their particulars each party says that it has done that.

It may be desirable – I do not know whether it is essential – if the parties were to go the further step, which I think the appellants have either taken or attempted to take, of identifying the way in which the Full Court seems to have treated the various particular pieces of land within various categories, but I am not yet sufficiently apprised of the matter to understand whether that is essential.

What I am, therefore, looking for is statements on each side of the record which as self‑contained documents will identify how and where issue is joined in relation to ground 10.  Only when those steps are taken do I think it will be apparent whether we should attempt to hive off this question of revocation, if so, when we should do so and how we should do so or how generally we should proceed.

Now, that is the state of my understand of the matter that finds reflection, I hope, in the proposed minutes of order which I had intended the parties should receive during the course of the morning.  Now, with that long preamble, it is your motion, Mr Pullin, perhaps if I hear first from you on the matters which I have raised before we come to any detailed

argument, if at all, on the matter of revocation which is the principal subject of the motion.  Yes, Mr Pullin.

MR PULLIN:   I want to make an amend to it and get that out of the way before discussing the matters which your Honour has raised this morning because we have realised that the problem exists not only with respect to ground 10 but there are five other grounds which are entirely within the Ord Irrigation Area and the areas which have now been particularised.  I do not want to discuss these grounds, but I do want to just give notice and move an amendment to the notice of motion and it follows, after the figure 10 in the second line we seek to amend the motion to add “11, 12, 13, 17 and 20” and I wish to delete in that same line, if you go back to the second word “proposed”, delete the word “proposed” and insert – sorry, does your Honour have that?

HIS HONOUR:   Yes.

MR PULLIN:   Delete the word “proposed” and insert the words “what are now” the word “ground” which follows add an “s” and then delete “17(e) now ground”.

HIS HONOUR:   Yes.

MR PULLIN:   So that that second line will read, “Of what are now grounds 10, 11, 12, 13, 17 and 20 of the notice of appeal”.  So I move that and perhaps my learned friend can consider that and we will hear from Mr Barker as to his attitude in due course.

The second thing, your Honour, is to comment on the proposal that you put forward in the orders that you have proposed.  I have discussed this briefly with Mr Barker and, in the main, I think we can agree that there will be no opposition to the suggestions that your Honour has made in the form of the proposed minutes.  It is a matter then of inserting some dates.

The third thing I wanted to do, and this is with your leave, of course, is to just give you a little more help as to how this problem has arisen so that, even before you receive the written submissions and written particulars that you suggest be ordered, that you understand exactly how the problem has come up.  Now, it would take about 10 minutes, I suppose, just to explain it to you so that you understood what it was that you would be receiving and why there is a controversy.  That depends on whether your Honour wants to hear ‑ ‑ ‑

HIS HONOUR:   To what end do you seek to make that statement in advance of the written articulation of the matters that I have identified, other than some perceived forensic advantage in having a first unopposed kick at the ball?

MR PULLIN:   It would have that slight advantage, your Honour, but the reason why I say it is because I just perceive that there is probably, and quite understandably, a difficulty in grasping how this problem has emerged and why it has emerged.  It may assist your Honour, because your Honour is riding shotgun on these directions hearings, to understand why we make a complaint and why we agreed that the minute of the orders need to be made and why there needs to be clarification.  But as I say, that is entirely for your Honour.

HIS HONOUR:   It seems to me, Mr Pullin, at first blush, that until we know precisely what, first, the appellants say is encompassed by their grounds – and I now say “grounds” plural, given the foreshadowed amendment – it is probably unproductive for you to set up what may turn out to be largely a straw man, with a view to knocking it over.  That, I think, may not be a very productive use of time and I would rather, frankly, that the parties faced the discipline of writing it down in a form where I can pore over it, pull it apart, and send the pieces back down the telephone wire to counsel for them to consider the fragments that then remain, that that may prove not simply more satisfying but more satisfactory in the elucidation of the point that really is in contest between you.

MR PULLIN:   Your Honour, while we agree with the orders which are proposed, I do gather from what your Honour has said that you think that there is probably a greater deal of uncertainty about the arguments that are being presented in relation to ground 10 and what our complaint is than there really is.  I think that it is really fairly clear that the appellants are trying to attack the determination in so far as it relates to the whole of the Ord Irrigation…..  Now, in so far as  ‑ ‑ ‑

HIS HONOUR:   Let them say so.  Mr Pullin, that is exactly what I want to identify.  I make no bones about what I am trying to do.  I am trying to tack each party so firmly to the wall that by the time we get to a Full Court there is no doubt where they have staked their territory and there is no room to move. 

MR PULLIN:   All right, well I will try to…..your Honour. My only concern is that Mr Barker will reject…..your Honour’s invitation to say what the principles are, and perhaps I could just limit some comments to that point. We say that section 73 of the Constitution requires there to be an appeal against a judgment, decree, order or sentence. The determination in this case is the judgment which is being appealed against and the order in paragraph 1 of the determination was that native title existed save for the areas in the second schedule. The second schedule, in paragraph 1, lists the areas of land which constitute the Ord Project and the Ord Project, on the map that has been sent to your Honour, encompasses the whole of that large rectangular area at the bottom.

Now, what we have is this ground 10 which, on the face of it – and the submissions which were made to your Honour and the other members of the Full Court on the special leave application by Mr Sofronoff, who raised it, was to say, “We are concerned with a small area of land to the south‑east”, which is a buffer zone.  That is a general description which applies to it.  We would like that to go in, as a result of which the Court was persuaded to add it but not to add the ground attacking the whole of the Ord Project area.  We now have this particularisation which, as your Honour says, need to be clearly identified.  What is going to be said is, “Well, the matters of principle that we have raised in paragraphs 1 to 5 apply in relation to that area and, if that is right, it should also apply to the whole of the Ord Irrigation Area.”

Now, that, your Honour, is therefore seeking to attack the whole of the Ord Project and that opens up enormous factual issues because we say that even if the Ord Project did not extinguish, there are a myriad of other issues which we have raised by way of contentions.  So that if the Ord Scheme did not, then leases did extinguish.  They were not granted leave to appeal with respect to leases.  So it would be a pointless exercise to engage in a consideration of the area if, in fact, there are leases which extinguish and for which they did not get leave to appeal about.

We then raise a whole lot of other matters which also result in extinguishment by way of cross contention and if, in fact, the appeal that is being attempted here now, contrary to the clear indication of the Full Court on the special leave application, then of course that would open up a consideration of all of those contentions and all of the myriad of factual issues which they would produce.  So that is what I wanted to say in relation to the issue of principle that might be suggested as applying to this limited ground 10.

HIS HONOUR:   Could I say in relation to that, Mr Pullin, two things.  First, I had taken grounds 1, 2, 3 and 4 of the notice as grounds which potentially affected any part of the land the subject of claim in respect of which the Full Court denied a finding of title.

Two, implicit in what you have said about opening up a myriad of factual issues is a set of assumptions which may be justified but which I want articulated and, if needs be, overtly justified about where that dispute would be resolved.  That is to say, if you are right to say that your contentions in support of retention of part of the order resulting from the Full Court requires the High Court to have regard to a myriad of facts and circumstances, I am anxious to have that articulated.  In particular, I am anxious to have articulated the degree of specificity that you say the Court would have to take to account in resolving your notice of contention.

As a matter of theory, completely divorced from the particular facts of this particular dispute, it could be that you could say that although the Full Court applied this principle, they could have and should have applied this slightly modified principle and on the findings of fact made at trial the inevitable consequence of the application of that principle is worked out in the following schedule and the application would not be a matter of dispute given the findings made at trial.

By contrast, as a matter of theory, it could be that you were asking this Court to draw inferences from undisputed evidence which was not the subject of findings of fact below and which would have this Court engage in a wholly fresh fact‑finding exercise.  I need to have articulated, not now, but before we advance too much further, what is implicit in the contention that Western Australia makes.

MR PULLIN:   Yes.  Your Honour, the final thing I would say is that in relation to the five grounds which commence the notice of appeal which is said to be general principles, I repeat that there cannot be an appeal in the air as a matter of principle.  It has to be an appeal against a judgment.  In this case what we are – and your Honour’s proposed orders are directed to, is identifying what part of the judgment is the subject of the appeal.

Now, if, for example, there was one piece of land that was not the subject of appeal in the sense that the appellants were trying to gain a determination of native title in relation to it, then the principles would have no application in relation to that piece of land.

The principles can only be applied, whether they are right as stated by the appellants or whether the Full Court stated them correctly, to a particular piece of land, so that if there is a section of land which is the whole Ord Irrigation Scheme except for the buffer zones, then if the principles are worked out and they are said to be in accordance with the appellants’ case, that will not affect the determination at the moment, which is there is no native title in relation to the Ord Irrigation Scheme except for the limited areas which are supposed to be under attack, because in any case principles are worked out and they can only ever be applied to the particular judgment or decree that is being referred to.

There is a great danger in the Court proceeding by considering that it can simply deal with general principles which will apply generally.  Of course, it will be of great assistance to all those concerned in native title to have these questions answered, but in the particular case it must only relate to the particular part of the decree, or in this case the determination, ie the judgment, which is under attack.  So those general principles are not matters which will allow, if they are answered in favour of the appellant, simply to spill over and then for the appellant to say, “We didn’t actually attack other areas of the determination area, but now that you have found that these are the principles and the Full Court has got them wrong, we would now like to appeal against the whole Ord Irrigation Scheme”.

We say that that cannot be the approach.  The approach has to be start with the part of the judgment under attack, identify it clearly, and then we must all understand that the general principles will not apply to those parts of the land which are not attacked in the notice of appeal.  They are my submissions, your Honour.

HIS HONOUR:   Just before you sit down, Mr Pullin.  Is that a submission that the alternative form of order sought at page 11 of the notice of appeal of 25 August 2000 is an order that this Court could not or should not make?

MR PULLIN:   Well, your Honour, that is the issue that we are trying to raise because the Full Court in the special leave application said, “We believe, in effect, you cannot appeal against the Ord Project findings.  That is a large‑scale project and that project extinguished native title and we have taken the decision to disallow ground 17, apart from one small aspect of it, that ground being directed to the whole Ord Project,” to be a decision of the court saying to the appellants, “You cannot appeal against the land which is included within the Ord Project and, therefore, all they can obtain is a correction in relation to what we had perceived as a result of the Sofronoff submissions to be a small area of land to the south‑east of the rectangular section shown on the maps.”  If you go back to Mr Sofronoff’s submissions, one can ‑ ‑ ‑

HIS HONOUR:   Yes, I am familiar with that.  I am familiar with what Mr Sofronoff said.  Are you saying though that grounds 1 to 4 or 5 are grounds which do not touch the Ord Scheme?

MR PULLIN:   Exactly so, your Honour.  We say that even if those ‑ ‑ ‑

HIS HONOUR:   That is not my understanding.  That is not my understanding and we need now to articulate that and identify it.  I had understood that grounds 1 to 5 were attacks directed to the whole of the land which was not the subject of a grant.  I may be wrong.

MR PULLIN:   That is the issue.  That is the issue that we say, if that is the view, then we need to prepare for it accordingly.  If it is not correct, if, in fact, the refusal of leave in relation to all of proposed ground 17 which was in the special leave application and the proposed notice, that was the ground which said we complain about the Full Court’s decision which was that the whole Ord Irrigation Scheme extinguished native title and the Full Court said, “You cannot have leave to appeal against that.”

That is, in effect, what is found in the determination by reading the first paragraph which says, “There is native title in every area except in the second schedule” and the second schedule identifies in paragraph 1 the Ord Project and we say that the effect of the Full Court’s decision to refuse leave in relation to ground 17 was to refuse the appellants the right to embark on a challenge to the decision of the Full Court that the Ord Project, that is, the vesting of the land and the use of the land, constituted extinguishment of native title and that really all that the appellant is confined to, or what the appellant is confined to, are what were represented to be small areas of land and that the principles would be determined in relation to those small areas of land and not for the whole Ord Project.

HIS HONOUR:   So what do you say is the land the subject of grounds 1 to 5?

MR PULLIN:   Your Honour, that is what we want to know.  We say that those principles – it is like when one has a contractual argument about whether a particular contract exists.  One resolves issues of principle about what offer and acceptance involves, what offer and acceptance is constituted, what the law is in relation to it, and then the Court applies it to the particular judgment that was ordered.

Now, what we understand is that the Court said, “You cannot appeal against that part of the judgment which is the land identified in paragraph 1 of the second schedule”.  Because they tried to put up a ground and even after argument – in fact, when the Full Court came in with its proposed orders, they said, “Here are the proposed orders” and that excluded an appeal against the Ord Project findings.  Then, as a result of the Sofronoff submissions, the court was persuaded to allow an appeal on the basis that it appeared that the only land that would be attacked, the part of the determination, would be a small area to the south‑east corner of the big rectangular area which is shown on the map to the south‑east of the lake.  Now, we can still talk about the principles.  They can be established by the High Court ‑ ‑ ‑

HIS HONOUR:   But in relation to what land?  In relation to what land?

MR PULLIN:   Exactly, your Honour, that is it.  Now, what we have had is under the guise of 17(e) which is said to be just buffer zones we have had the whole of the Ord Irrigation Scheme identified.  That was never intended and that is the issue that needs to be resolved, your Honour, and that is the question your Honour asking, is the question that we say they cannot bring

in under 17(e) under the guise of it being just about buffer zones.  Almost the whole of the Ord Project, admittedly the water they do not claim, but everything other than the water is included.

The Ord Irrigation Scheme covers the whole area of that southern enormous rectangular section which you see on the maps.  The Ord Scheme encompasses all of that.  So what your Honour is saying is correct.  What is the land – and the other side, we know from their particulars already there is uncertainty about the boundaries of some of the areas but, in effect, they are saying, “Well, under the guise of 17(e) we are actually attacking the whole of the Ord Project”.  If that is allowed, then there is a very big job ahead of us and, of course, the Court.

If, in fact, they are confined, as had clearly been intended in 17(e), then there is a much smaller factual compass in respect of which those five principles at the beginning will be aired, explored and a decision made and then applied to the facts.  There is a sort of general tendency that this is just – with the other parties, the appellant, to contend, “Well, we will just talk general principles.  We won’t worry about particular land” but, in fact, are trying under the guise of 17(e) to attack the whole Ord Project which the court said it could not do.  They are our submissions, your Honour.

HIS HONOUR:   Yes, thank you, Mr Pullin.  Yes, Mr Barker.

MR BARKER:   May it please your Honour, we do not agree with the proposition that Mr Pullin has put forward and repeated on a number of occasions to the effect that the court said we could not appeal against the Ord Project finding, I think were his words.  We wholly reject the interpretation that Mr Pullin, on behalf of the State, puts on the special leave grant, your Honour, and, with respect, for the purposes of the submissions today, we confirm the understanding that your Honour has of the way we seek to agitate the matter.

I do not go to that again.  Your Honour stated it clearly at the outset.  There were two aspects to it and I can confirm that the way you understand the appellants to put the point is the way we seek to put it.  We, in those circumstances, your Honour, have no difficulty with the proposed minute that you circulated.  Intended paragraph 1 of ‑ ‑ ‑

HIS HONOUR:   I do, Mr Barker.  I now have very great difficulty with the minutes that I have circulated and the minutes that I am now contemplating will be much broader given the way in which this controversy is now developing.  My present inclination is that you should be required to put on particulars of the land referred to in each of your grounds of appeal so that there can be no doubt about which land you say is affected by each and every one of your grounds.  We will then know what you contend.

Likewise, since we have this foreshadowed amendment to the notice of motion to seek revocation in respect of grounds 11, 12, 13, 17 and 20, my present inclination is to replicate what I have proposed in relation to ground 10 in respect of each of those other grounds.  Do not misunderstand me.  I am not in the least bit critical of either party yet.  I am anxious that the parties join issue precisely and if we have to spend more than one directions hearing getting the parties to join issue precisely, so be it, but at the moment I fear the parties are passing at 1,000 metre separation.  There is going to be an end to that.

The parties are going to have to give particulars of their respective contentions that will identify with stark clarity where they join issue, how they join issue and then we will consider any question of revoking or extending the leave beyond its present form.  So you should proceed from the basis that I am likely to order, one, that the particulars of the land will be particulars of the land referred to in each of your grounds of appeal and, further, that while the references presently are to ground 10 land, I think it may be necessary to extend those to the land referred to in each of grounds 10, 11, 12, 13, 17 and 20.

MR BARKER:   Yes, as I understand it, your Honour, the additional grounds are worked in on a more physical rather than conceptual basis.  The State would say that if you, in their terms, as I would understand it, take out the Ord Project area and treat it as land upon which there has been total extinguishment, then there is no need to go to other issues which physically occur within that ground.  So I think there is an understanding in relation to those other grounds, where the land is.  I do not think that is the State’s difficulty.  They simply seek to argue there is a consequential lopping of grounds because the physical ground is encompassed by the Ord Project area.

Your Honour, we have no difficulty if we are required to particularise the physical ground in respect of which each ground of appeal relates.  We intend to do that in our submissions that we are preparing at the moment.  So if your Honour is minded to do that, we have no difficulty.  We agree, with respect, with your Honour that the State is running wide of us and our understanding of the basis upon which special leave was granted.  We have set that out as clearly as we could in our submissions.  We are more than happy to comply with an order that your Honour has foreshadowed.  May it please the Court.

HIS HONOUR:   Yes.  Now, do other parties other than those represented by Mr Pullin and Mr Barker desire to be heard on the issues which so far

have been debated?  Firstly, from the Perth end, is there any party represented in Perth who desires to be heard further on these aspects of the matter?

MR PULLIN:   It seems not, your Honour, looking around the Bar table.

HIS HONOUR:   Yes, thank you, Mr Pullin.  And from Darwin?

MS WEBB:   The third respondent, the Attorney-General for the Northern Territory, does not wish to be heard and Mr Levy indicates nor from him.

HIS HONOUR:   Yes, thank you, Ms Webb.

Then we come to questions of timetable and content of the proposed directions.  By what date, Mr Barker, could the appellants give the particulars referred to in paragraph 1 of the proposed minutes if those particulars are extended in paragraph (a) to read, “full and precise particulars of the land referred to in each of its grounds of appeal” and if, in subparagraph (b) it were to read, “in respect of each part of the land referred to respectively in grounds 10, 11, 12, 13, 17 and 20, the basis or bases upon which” et cetera “in respect of that part of the land had been totally extinguished;” (c) would read “in respect of each part of the land referred to respectively in grounds 10, 11, 12, 13, 17 and 20, the principle or principles which the appellants allege that the Full Court should have applied in considering whether native title in respect of that part of the land had been extinguished;”.  With those amendments, by what time could you put on these particulars?

MR BARKER:   By 27 November, your Honour.

HIS HONOUR:   Yes, thank you.  Now, Mr Pullin, at the moment paragraph 2 of the minutes is directed to ground 14 of your notice of contention.  Given the debate we have just had, should I be extending beyond ground 14?

MR PULLIN:   I do not think so, your Honour, because we have identified in general terms in our particulars to that ground the areas and will need to give more particularity once we see the other side’s particulars.  It is 14 that really lists all of the physical ground that we need to identify.

HIS HONOUR:   Then what I would be minded to do, in each of subparagraphs (a) to (e), to delete the words “ground 10” wherever appearing so that, for example, paragraph (a) will read, “full and precise particulars of the part or parts of the land referred to in this ground of contention”; (b) would see “ground 10” excised twice; similarly (c); similarly (d).  Now, with those amendments, would that lead to your giving particulars that will ensure this joinder of issue which I am anxious to have?

MR PULLIN:   I think so, your Honour, subject to clarification in relation to (a); (a) sounds as though it is asking us to give particulars of what the appellant – can I just understand how it would then read, (a), with the amendments.

HIS HONOUR:   The appellant will put on particulars of the land it refers to.  You will answer, presumably with ground 14 of your contention.  What I am anxious to identify is whether ground 14 is in respect of all of the land the appellant has identified or some only.  I am anxious to identify whether there is some differential treatment within your contention of some parts of the land which the appellant identifies.  Do you follow?

MR PULLIN:   Yes.  Could I just take instructions on one point, your Honour?

HIS HONOUR:   Yes, of course.

MR PULLIN:   I think, to be fair, your Honour, we need to actually say that we should give particulars not only in relation to contention ground 14, but we have a series of contentions.  For example, just going to the contention, I think we need to impose a somewhat more onerous task, even though I hesitate to say this, but if ‑ ‑ ‑

HIS HONOUR:   If you do not now, I will later, Mr Pullin.

MR PULLIN:   I did not want to have any savagery at the next return date, your Honour, so I thought it best now ‑ ‑ ‑

HIS HONOUR:   No more than normal.

MR PULLIN:   Yes.  I mean, take for example where we say, “Well, if the Ord Scheme does not extinguish, then mining leases do”, then we need to identify those mining leases.  The difficulty is I am just trying to envisage – one way to do it would be to map it.  The difficulty is that we have layers of extinguishment.  So we say, “Here is a picture of the Ord Scheme, which is the whole area.  If that does not, then here are the mining leases that do.  If they do not, then here are the leases which do.”  So we need to give some thought to the size of – and if I can just take some instructions, because there are those surrounding me who know whether that can actually be done within some period of time.

HIS HONOUR:   Yes.

MR PULLIN:   Your Honour, we can map – it might be helpful if we look at the notice of contention so that I can explain to you what we are talking about.  If we just look at the contention, starting with 4 which - from 4 through until 11 and 15 and 16 would actually go if our argument was right that the appellant is not allowed to appeal against the Ord Scheme.  If they are allowed to appeal against the Ord Scheme, then these would all be in and we want to make sure that it is understood that these grounds depend upon the resolution of that dispute and depend upon the particulars we are going to receive.  But take, for example, 4.  Based on the evidence - and I am afraid this is one of those disputed areas - we say that when you look at the evidence of what the claimant said about their land, there were big sections where no one referred to sections of the land.  We can map that, so in 4 we would produce a map of what we say were the areas of land where no claimant gave evidence about it.  So we can map that.  Similarly with the continuity of community, there is a similar argument but that is to do with the more conceptual argument.  It would not be a map.  We would not with a map of that. 

Six is pastoral leases.  Quite clearly we can map that.  Seven is other leases, we can map that, and I should mention that that is a ground which raises this dilemma.  We seem to have a cast-iron defence on that basis because the appellant sought leave to appeal in respect of the findings about the extinguishing effect of leases.  We are going to say, “Well, the answer to the areas affected by leases is that no leave was granted in relation to that and the lease is extinguished”, but we can map it and we will map it.

Eight, reserves, we can map the reserves.  Nine are reserves as well.  Ten, resumptions, we can provide a map of that.  Eleven, mining and general purpose leases, we can map that.  I might say all of this is if the other side comes up with a map that requires us to map a particular lease.  We will then respond with our map showing the lease we rely upon.  The Rights in Water and Irrigation Act I do not think we could map because you will see that that Act extinguishes, we say, native title in water courses, lakes, lagoons, springs, marshes, swamps and so on.  We could not really map that in the time.  A cumulative extinguishment does not require mapping.  That is an argument based upon all of the foregoing.

There is just one matter, if I could check, your Honour.  So, your Honour, we will do it in that form so that everyone anticipates what we will be producing, so you know what we will be aiming to do and we could do that ‑ ‑ ‑

HIS HONOUR:   And if then I frame paragraph 2 of the minutes as “on or before a date file and serve further particulars of grounds 4 to 16” of your notice of contention stating in each case (a) to (d), that would leave open the manner of statement and if map is the appropriate way, by all means use map, but if that is the form of the order, will that lead to a sufficient joinder of issue and, if it will, by what time could you put on the particulars that are thus identified?

MR PULLIN:   Yes.  In answer to your Honour’s first question, I think it will result in a joinder of issue providing the other side does not come in with the kind of answer which we received on the last occasion, which was in respect to the particulars supplied a sentence like this, “However, drawing appropriate inferences from the findings and the findings of the majority and the trial judge the following characterisation of land in the Ord Project area according to the majority is provided” and then there is a general description to some areas of land which sometimes cannot be identified.

We need considerable precision in the way that we are going to be doing it, probably with maps, your Honour.  So in answer to that we think it will lead to joinder of issue if we receive precision from the other side.  In relation to time, we could do it by the time of our submissions 13 December, your Honour.

HIS HONOUR:   If then the minutes took the form I have identified amended, would any party seek to be heard to add to or vary those minutes, in Perth?

MR PULLIN:   Nobody in Perth, your Honour.

HIS HONOUR:   In Darwin?

MS WEBB:    No, your Honour, neither party in Darwin.

HIS HONOUR:   Thank you.  Can I then speak to the Bar generally about where we are heading with the case and how preparation of it is going because we are fast coming to the time where the Court will want to be fixing its lists for the early part of next year.  Is it likely that the parties will substantially meet the timetable that was last fixed?  Unless somebody speaks up now, we will order our affairs at this end on the assumption that the parties by their silence accept that there will be substantial real compliance with the timetable that has thus been fixed.  So this is the last real opportunity for the parties to indicate whether there is a problem looming.

MR PULLIN:   Your Honour, can I anticipate a problem?  When we come back on the next directions hearing what I anticipate, based on the information we have received from the other side to date, is that we will receive a map which will look very much like the map we have presented identifying the areas we think that they say are under attack in relation to ground 10.  That will leave us again saying, “Well, then in reality you are attacking the whole Ord Project”, in which case we will say, “Well, then is it the case that the High Court wishes to allow an attack on the whole Ord Project land area or are they confined in a way which would not allow that to happen?”

I think that question will stay remain and there will be two options, I suppose.  One will be to say, “Well, we do need to bring on this revocation motion and deal with it before the hearing so that everyone knows what is going to happen”.  Or, alternatively, your Honour could say, “Well, we will just have to sort that out at the main hearing, which will mean that the parties will prepare on the basis that our motion is not successful.  There will be a very large quantity of material which will have to come into the appeal books to cover the possibility that they are, in fact, allowed to attack the whole Ord Scheme, which will then have that cascading effect into our contentions and our layers of defence that we put up, all of which will have to be before the Court in case that is allowed.

If the revocation motion is successful, then all that will have to be put aside.  There may be documents buried within appeal books that remain relevant but which are no longer relevant if the revocation motion is dealt with.  So I just indicate that I anticipate on our next return we will not be much further forward on our complaint and our need for clarification, your Honour.

HIS HONOUR:   You will be this farther forward, Mr Pullin, and it is this which I direct particular attention to:  by then you will have received the appellants’ outline of argument and you will have filed yours and you will have filed by then, will you not, a statement of the material to which you think reference needs to be made in support of your case, both in answer and by way of contention?  Now, all that having been done, the bulk of the work will have been undertaken, will it not?

MR PULLIN:   We will have to prepare on the basis that our revocation motion fails, so we will have to deal with the whole issue about the Ord Irrigation Project, extinguishing and all of the cascading contentions.  If we knew that, in fact, the intention of the High Court was not to allow an attack in relation to the Ord Project, we would no longer have to pursue those contentions that I indicated.

We have indicated in our outline of submissions that we would no longer pursue our contention save for, I think, about four of them which relate to areas outside – well, no, I think all of the contentions – well, nearly all of the contentions are inside the Ord Project area.  They would all go if the Ord Project is not to come under attack, that is, the Ord land.  Similarly, because they raise questions of principle in some places, we will also not be pursuing some of grounds of cross‑appeal.  So if nothing happens between now and the December date, we will have to assume that our motion for revocation fails, otherwise we will be half prepared in case of that eventuality.

HIS HONOUR:   In light of what you have said today, I will, of course, revisit both what happened at the special leave hearing and I will reread the material that was before us then.  I think I should say to you, however, that my present memory, which may well be inaccurate, is that I was not myself conscious of grounds 1 to 5, what I might loosely refer to as the grounds of principle, as being directed only to land outside the Ord Scheme.

Now, if that is so, that is, if grounds 1 to 5 are grounds directed to the whole of the land the subject of claim but not the subject of grant, then the case wears a different aspect, I think, from the aspect which your submissions would put upon it.

MR PULLIN:   There is no question, your Honour.  If it was intended by the court that the whole Ord Project area and the determination that it extinguished native title was to come under attack and validly come under attack in an appeal before the High Court, then all of the issues that we have raised will have to be dealt with and argued.  If, however, the fact that when the – and I think probably the difficulty of the High Court was that it might not have understood what the Ord Project meant.

When your Honour refers to the papers again and revisits it, could I ask your Honour just to note that the second schedule of the determination, paragraph 1, is the Ord Project area and to know what that means, if you look at the plans we have sent over, bear in mind that that whole southern rectangular section with the little section sitting on top of it is entirely within the Ord Project area and that the area that Mr Sofronoff – it might help you to have a picture of this – if I can just tell you the area that Mr Sofronoff was concerned with, so that you know how it emerged.  Does your Honour have a copy of the plan with 67 on it?

HIS HONOUR:   Yes.

MR PULLIN:   If you look at the plan you will see there is a green 23 sitting at the top of what I will call the southern section with the little section on top.  That is the top, the northern most section, and the bottom of it goes down to 17(b), which is just inside the bottom right‑hand corner.  All of that land is within the Ord Project area as described in paragraph 1 of schedule 2 of the determination.  So when you read the determination it says there is native title everywhere except - and then it says in the second schedule, and the second schedule identifies the Ord Project and the Ord Project is bigger than that lower section.  The Sofronoff interests, where Mr Sofronoff was appearing for the Malngin and Gija People, their only interests were in the south‑east corner of that area that I have just described, around about where you might say 17(a) is and 17(c) and (b) perhaps, and that is roughly the area.  It might not be precise, but it is certainly down in that area.

So he said he was interested in just those areas and all of the rest of the project area was not referred to by him because his interests would not affect them.  As a result of that, the court came back, having said you cannot have ground 17, which is the attack on the Ord Project, and it actually was headed up “Ord Project”, but you can have 17(e).  Now, when we get 17(e) particularised, all of this pink is the area that has been identified as covered by the buffer zone, 17(e) point, in other words, everything except the water.  We have made a note that they do not particularise the actual Lake Argyle itself and Lake Kununurra, but everything else pretty well, apart from some minor details up in the top section, all of this pink area, they have identified the whole of the Ord Project area under the guise of 17(e).  That is our complaint, your Honour, and when you are revisiting it, it will help you to understand how it has all emerged.

HIS HONOUR:   The point which I think emerges from that debate is that my recollection of the leave hearing is that we were dealing with it by issue, not by piece of land, and it may be that it is at this point that the confusion has entered.

MR PULLIN:   Yes, and that is why it is important ‑ ‑ ‑

HIS HONOUR:   Anyway, I think we may have debate in it.

MR PULLIN:   Yes, your Honour.  There is just one other point which – I am reminded, your Honour, that in the last directions – I am just trying to pick this up in my left ear – I am being informed behind by those who are concerned about the mechanics, your Honour, is that there are yet no directions about the preparation of appeal books which leaves those who are instructing me to wonder what they must now do, particularly in view of all this debate that has been going on.

HIS HONOUR:   Let me dig out the order and make sure that we are at one about this.  There is yet no direction about the preparation of lists of material to which reference will be made on the hearing of the appeal.  That I understand.  The intention I had last directions hearing is that once we saw how the submissions came in we would then have an idea of the nature of that task; that we could relatively soon after the next directions hearing at least have an exchange of lists of material to which the parties intended to refer and the physical preparation of it, which I would understand may be a

task of probably some weeks, I would have thought three weeks to assemble it all would be about right once you knew what you had to assemble, could take place during the month of February. 

Whether, in December, it is then apparent that that task can be achieved or not is a matter that I will have to leave over until then, I think, Mr Pullin.  There is a risk, I know, that we will slip from the March sittings, which is the dates for which I had been notionally aiming, and if we slip out of the March sittings we will inevitably slip over to the May sittings, the sittings commencing 22 May, because I think we would want to have a fixture that would enable us to spill, if needs be, past a week.  I would hope that that ‑ ‑ ‑

MR PULLIN:   I think everyone is keen to have the March date if possible, your Honour.

HIS HONOUR:   Then come December 18, if the parties can have considered for themselves the size of the task that I will by then dump upon them of preparing lists of material to which reference will be made and physically reproducing that material, and bear in mind further, if you would, Mr Pullin, that much, if not all, of the burden of that may fall on those instructing you.  Now, I know that that will be a matter for debate, but order your affairs on that assumption as the worst case that could befall you, then you can tell me on that day whether this is possible or impossible.

MR PULLIN:   Very well, your Honour, thank you.

HIS HONOUR:   Now, does any party in Perth seek to be heard further before I make the orders that I foreshadowed?

MR PULLIN:   It seems not, your Honour.

HIS HONOUR:   Thank you.  And in Darwin?

MS WEBB:   No other party in Darwin, thank you, your Honour, seeks to be heard.

HIS HONOUR:   It is your lot in life, Ms Webb, simply to say no, by the sound of all of this.

MS WEBB:   It seems to be today, your Honour.

HIS HONOUR:   Yes.  Then the orders I would propose to make are these:

1. On or before 4.00 pm Eastern Summer Time 27 November 2000 the appellants file and serve further particulars of its notice of appeal dated 25 August 2000 stating:

(a)full and precise particulars of the land referred to in each of its grounds of appeal;

(b)in respect of each part of the land referred to respectively in grounds 10, 11, 12, 13, 17 and 20, the basis or bases upon which the appellants allege that the majority of the Full Court concluded that native title in respect of that part of the land had been totally extinguished;

(c)in respect of each part of the land referred to respectively in grounds 10, 11, 12, 13, 17 and 20, the principle or principles which the appellants allege that the Full Court should have applied in considering whether native title in respect of that part of the land had been extinguished.

1. On or before 4.00 pm Eastern Summer Time 13 December 2000 the fifth respondent (Western Australia) file and serve further particulars of grounds 4 to 16 inclusive of its notice of contention dated 8 September 2000 stating in each case:

(a)full and precise particulars of the part or parts of the land referred to in this ground of contention;

(b)in respect of each part of the land the subject of Western Australia’s contention, the basis or bases upon which Western Australia alleges the majority of the Full Court concluded that native tile in respect of that part of the land had been totally extinguished;

(c)in respect of each part of the land the subject of Western Australia’s contention, the principle or principles which Western Australia alleges that the Full Court should have applied in considering whether native title in respect of that part of the land had been extinguished;

(d)in respect of each part of the land the subject of Western Australia’s contention, full and precise particulars of the acts, facts, matters and circumstances, additional to those referred to by the majority of the Full Court in their reasons for judgment, which Western Australia will allege should be taken into account in concluding, on a basis or bases different from the basis upon which the majority of the Full Court acted, that native title in respect of that part of the land had been totally extinguished.

1. Adjourn the fifth respondent’s notice of motion dated 19 October 2000 for mention on 18 December 2000.

1. Liberty to apply.

1. Reserve costs.

1. Certify for the attendance of counsel.

Does any party seek to be heard further?  Thank you, ladies and gentlemen for the assistance you have provided. 

I will adjourn.

AT 3.47 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 18 DECEMBER 2000