Wardens of South West Mineral Field & Ors Ex parte Ctwealth of A

[1998] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P12 of 1997

In the matter of -

A Declaration in respect of section 52 and 109 of the Constitution of Australia and the Mining Act 1978 (Western Australia)

And in the matter of -

An application for a Writ of Prohibition against THE WARDENS OF SOUTH WEST MINERAL FIELD

First Respondents

MINERAL SAND MINING & DEVELOPMENT PTY LTD

Second Respondent

ENMIC PTY LTD

Third Respondent

STATE OF WESTERN AUSTRALIA

Fourth Respondent

Ex parte -

THE COMMONWEALTH OF AUSTRALIA

Prosecutor

Registry  No C4 of 1998

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Plaintiff

and

THE STATE OF WESTERN AUSTRALIA

First Defendant

THE WARDENS OF THE SOUTH EAST MINERAL FIELD

Second Defendant

MINERAL SAND MINING & DEVELOPMENT PTY LTD

Third Defendant

ENMIC PTY LTD

Fourth Defendant

Directions Hearing

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 25 MAY 1998, AT 10.37 AM

(Continued from 22/5/98)

Copyright in the High Court of Australia

MR H.C. BURMESTER, Acting Solicitor-General for the Commonwealth:   If it please the Court, I appear with MR M.J. HAWKINS for the Commonwealth in both matters.  (instructed by the Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia:   May it please your Honour, I appear with my learned friend, MS J.C. PRITCHARD, for the State of Western Australia in both matters.  (instructed by the Crown Solicitor for Western Australia).

HIS HONOUR:   Perhaps we should begin with the second one. 

MR MEADOWS:   Yes, your Honour.

HIS HONOUR:   That seems all in order now.

MR MEADOWS:   Yes.  We have filed a revised version of our defence, demurrer and counterclaim which annexes the relevant documents referred to in the statement of claim.

HIS HONOUR:   Yes, I see that.  Have you the original of your defence and demurrer?

MR MEADOWS:   I have made an original available to the Registrar.

HIS HONOUR:   Right.  So the second No 15 on page 4 can just be deleted.

MR MEADOWS:   Yes, it should be, your Honour.  I was going to blame the automatic numbering system on the computer but I must accept responsibility.  I am sorry for that.

HIS HONOUR:   Each side has furnished the necessary memoranda as to setting down their demurrer so I should direct:

In matter No C4 of 1998 that the demurrer to the statement of claim and the demurrer to the counterclaim be set down before the Full Court at 10.15 am on 26 May 1998.

How many directions hearings have there been; three, including this, is it not?

MR BURMESTER:   Four, I think, your Honour.  Monday, and two last week.

HIS HONOUR:   You are quite right.

I certify for counsel on the four directions hearings in this matter.

Is there anything else that has to be done in that one?

MR MEADOWS:   No, your Honour.

MR BURMESTER:   Your order picks up our demurrer, I understood, from ‑ ‑ ‑

HIS HONOUR:   Yes.  I have directed that the demurrer to the statement of claim and the demurrer to the counterclaim - which is yours - be set down before the Full Court at 10.15 am on 26 May 1998.  And I certify for counsel on the four directions hearings in this matter.

Now, what is going to happen to the other one?  That can be discontinued on terms as to costs, I suppose, can it?

MR BURMESTER:   Yes, your Honour, that is what we were going to propose.  I think we can probably reach agreement on costs but we have not sort of got agreement to discontinue by consent right at this minute. 

HIS HONOUR:   No.  Well, suppose I said “discontinued on terms that the costs of P12 be costs in C4”?

MR BURMESTER:   That would be acceptable to us, your Honour.  My only concern is that some of the parties in the matter, of course, are not represented here and whether, therefore, it ought to be costs reserved so that we can seek the views of those parties.  That is my only concern about such an order.

HIS HONOUR:   Yes.  What is the terms on which they have - is there anyone who is not in C4?

MR BURMESTER:   No, they are the same parties.

HIS HONOUR:   They are in both, are they not?

MR BURMESTER:   They are in both, yes.

HIS HONOUR:   I think it is all right.

In matter No P12 I grant leave to the prosecutor to discontinue the proceeding but on terms that the costs in that matter be costs in matter C4 of 1998.  Now, there were, the Registrar tells me, four directions hearings in P12 because there was an anterior one, I think.  I will just say an order - - -

MR MEADOWS:   I think, strictly speaking, there were four directions hearings in P12 and three in C4.

HIS HONOUR:   Yes.  I had better go back to what I said before.  In C4, I had better say certify for counsel on all directions hearings in that matter, and in P12 I will certify for counsel in all directions hearings in that matter. 

There are no other loose ends, are there, in P12?  Have any costs orders already been made in P12?

MR BURMESTER:   No, your Honour, I do not think so.

HIS HONOUR:   The only other thing is to make sure the demurrer books are ready, I suppose.

MR BURMESTER:   Yes, your Honour, I was going to suggest that there be a single demurrer book.

HIS HONOUR:   Is that suitable, Mr Meadows?

MR MEADOWS:   That is acceptable to us, your Honour.

HIS HONOUR:   And who will have the carriage of that, the preparation of it?

MR BURMESTER:   I guess, your Honour, together we will put it together with the Registry, but the Commonwealth will ensure that is done.

HIS HONOUR:   All right.  There is nothing else to be done, I do not think.  Thank you, gentlemen.  The Court will adjourn.

AT 10.45 AM THE MATTER WAS CONCLUDED