Wardens of South West Mineral Fields & Ors- Ex parte Cwealth of A

[1998] HCATrans 147

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 Consstitution 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

Ex parte -

THE COMMONWEALTH OF AUSTRALIA

Prosecutor

Directions Hearing

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 18 MAY 1998, AT 2.16 PM

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 MS V.J. HAWKINS for the prosecutor.  (instructed by the Australian Government Solicitor)

MR J.K. McDONNELL:   If it please the Court, I appear for the Western Australian Attorney‑General and the Victorian Attorney‑General.  (instructed by the Crown Solicitor for Western Australia and the Victorian Government Solicitor)

HIS HONOUR:   Yes, thank you.  Mr Burmester, this case seems to have got itself into somewhat of a procedural mess.  I am by no means convinced that it can go on in its present form.  Can I put to you some of the problems?  It appears likely that there will be no contradictor in this particular case and that the party with the most interest in it, namely the State of Western Australia, may or may not be intervening, on what I was told last week.  Do you have any instructions?

MR BURMESTER:   I understood that they certainly were going to be intervening.

HIS HONOUR:   But in any event, as interveners, they seem to be in the rather unusual position of raising 78B issues even though they are not parties to the particular proceedings.

MR BURMESTER:   I am sorry, your Honour, I do not understand what you mean by that.

HIS HONOUR:   Well, is not the State of Western Australia the one who initially raised 78 ‑ ‑ ‑

MR BURMESTER:   No, I think we have issued the 78B and the further amended 78B notices.

HIS HONOUR:   Is that so?

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   Yes.  Well, I am sorry, I misunderstood.

MR BURMESTER:   I understand they may have issued a further 78B notice, but I have not seen that, your Honour, and I was not aware of that.  So they may have issued one on Friday raising some further constitutional issues, but I have not seen that.

HIS HONOUR:   Yes.  Well, it is filed on behalf of the Attorney‑General for Western Australia.

MR BURMESTER:   Yes, so I stand corrected.  Your Honour, if that was the only concern, it would seem to me that, yes, there may be some desirability in getting Western Australia involved in a more formal way.  It may be it could simply be joined as a further party, but there may be other issues that your Honour ‑ ‑ ‑

HIS HONOUR:   There is a further issue which may arise and that concerns the jurisdiction of this Court.  You initiate proceedings by way of prohibition.  I have to say that, prima facie, I have always taken the view that so long as the Court has jurisdiction under section 75(iii) or one of the other sections, that section 32 of the Judiciary Act is sufficient to enable the Court to grant any remedy that is relevant to the exercise of that jurisdiction.  That may not necessarily be the view of all members of this Court and that in itself may raise a constitutional question.

Mr Burmester, I think it is a case that really requires the Western Australian Government being made a formal party to these proceedings and that may indicate that what is required is that these proceedings proceed by way of statement of claim and demurrer.  Whether the case can realistically be got ready on that basis by next week may be another question.  What do you think?

MR BURMESTER:   Your Honour, we are very keen that the case proceed next week and we are happy to do everything we possibly can to facilitate that.  We see no insuperable obstacle.  We did give the question of jurisdiction careful consideration at the time we initiated these proceedings and, as you say, we think there are good bases to say the Court does have power to order prohibition in these cases, it having jurisdiction under 75(iii), if nowhere else.  However, I hear what you say, that that may be a point of a controversy and I would not like the point just to go, in the sense that I do not respond, by saying simply that we do consider that there is ‑ ‑ ‑

HIS HONOUR:   Well, it may be that ‑ ‑ ‑

MR BURMESTER:   I do not know whether we should leave the current proceedings on foot and issue further proceedings by statement of claim and raise the issue before the Full Court.

HIS HONOUR:   Well, it may be, but you may find yourself faced in a position where one or more members of the Court may take the view that the question of the Court’s jurisdiction to proceed by way of prohibition is itself ‑ ‑ ‑

MR BURMESTER:   Is itself a constitutional issue which would require 78B notices.

HIS HONOUR:   78B notices.  So ‑ ‑ ‑

MR BURMESTER:   I understand that, your Honour.  I guess we thought Henderson’s Case was a good precedent and we could rely on that, but in the light of what you say, I accept that ‑ ‑ ‑

HIS HONOUR:   Yes.  The other aspect that you may have to give consideration to is whether the converse of issuing proceedings by way of prohibition to the Mining Warden’s Court as to whether or not the Court can issue mandamus to it on the same sort of basis that you are relying on.  I do not know that it will arise in this case, but it is the sort of issue that will have to be explored, I think, if one is going to examine this whole panoply of remedies.

MR BURMESTER:   Your Honour, we think we could have a statement of claim filed by tomorrow, which would have Western Australia as one of the defendants.  We would expect the other parties, the other respondents, in this matter, the Wardens and the two mining companies, ought also properly be listed as respondents to any such statement of claim.

HIS HONOUR:   Yes.

MR BURMESTER:   We would not see it raising any additional or different issue.

HIS HONOUR:   No, I think that may well be the case, depending on the attitude the Western Australian Government take in respect of it.

MR BURMESTER:   Certainly, your Honour.  Western Australia has had an advance copy of our written submissions, so there is nothing in there that would come as a surprise and I do not think starting it by the means of a new action would raise new issues.

HIS HONOUR:   No.  You might, however, give serious consideration of issuing another set of 78B notices about the question of jurisdiction as well.

MR BURMESTER:   Yes, your Honour.  I am happy to do that, but it depends on what my friend has to say.  I am happy to go ahead and issue a further set of proceedings by statement of claim.

HIS HONOUR:   Yes.  Well, I will see what Mr McDonnell has to say, but we can perhaps leave the matter on foot at the moment.  Perhaps later in the week I can have a directions hearing in Canberra to see what the state of the matter is.  I think this would be the new Chief Justice’s first case.  We would not like to have it in a procedural mess.

MR BURMESTER:   I appreciate the Court initiative in raising the matter rather than waiting until we all turned up, so I do appreciate that.  As I said, perhaps this is not the case in which to argue these jurisdictional points if there is concern, as there seems to be.

HIS HONOUR:   Yes.

MR BURMESTER:   I will hear what my friend has to say and then there may be some consequential orders and so on that are appropriate.

HIS HONOUR:   Mr McDonnell?

MR McDONNELL:   Your Honour, I do not have much to say.  I have only been instructed this morning by both the Western Australian Attorney and the Victorian Attorney.  However, I understand that, at least in relation to the Western Australian Attorney, he is expecting and I do not think will be too surprised if there is a change in the way in which the matter is to be conducted.  Indeed, he was considering seeking to be joined as a party, so that would be no surprise.  The primary consideration for at least the Victorian Attorney‑General is that the hearing date not be lost, so one can anticipate that at least those two interveners will be ‑ ‑ ‑

HIS HONOUR:   Well, I have not the slightest doubt that the respective legal representatives on all sides of the record, so to speak, will do everything to have the matter brought ‑ ‑ ‑

MR McDONNELL:   The parties, your Honour.

HIS HONOUR:   Yes.  So I will ask Mr Burmester whether he seeks any consequential orders here today.  Perhaps we can leave the matter on foot subject to that and I might put it in for mention in Canberra on Friday morning to see what the state of play is at that time.

MR BURMESTER:   Yes, your Honour, we will give further consideration as to whether, if having issued a statement of claim, we wish to keep the other proceedings on foot or whether we should discontinue them and so on. 

In relation to 78B notices, I assume the time requirement of 14 days or something will be dispensed with.  It sounds like ‑ ‑ ‑

HIS HONOUR:   Yes.

MR BURMESTER:   The other matter is filing written submissions.  Our written submissions would normally have been due today, your Honour.  As I indicated, Western Australia has had an advance copy of those submissions and we would certainly make copies available to Victoria and if my friend can indicate other States that are interested, we can make copies available, but perhaps we can have a couple of days before we formally file them in the light of the new proceedings?

HIS HONOUR:   Yes.  You think you can ‑ ‑ ‑

MR BURMESTER:   We think we can get a statement of claim issued tomorrow.  We will liaise closely with Western Australia because it may be the quickest way would be for them to perhaps demur to the statement of claim or something like that.

HIS HONOUR:   Yes.  That is what I had in mind.

MR BURMESTER:   Yes, and so we will try and draft it in a way which they are happy with.

HIS HONOUR:   It is quite possible you may get a situation where you have cross‑demurrers.  They may want to allege something in a statement of defence which you yourself may have to demur to, but ‑ ‑ ‑

MR BURMESTER:   Maybe, your Honour, but I think there is not a great deal of dispute about the facts.  That is certainly my understanding, but we will see what we can do there.  The other matter in relation to submissions is to seek permission to file submissions that are a little longer than the 20‑page maximum that is set out in the practice direction.  I think we have made our best endeavours and we are still about 25 pages, but if we could have dispensation from that rule, your Honour, given the number of issues that are raised, that would be a matter of assistance.

HIS HONOUR:   Yes.  Well, what about if I give you until 4.00 pm on Wednesday to file your statement of claim, is that ‑ ‑ ‑

MR BURMESTER:   Yes, that would be fine, your Honour.

HIS HONOUR:   But that is on the understanding that you will try and get ahead of that.

MR BURMESTER:   Yes, we will try and get it in ahead of that.

HIS HONOUR:   Yes, and statement of defence and demurrer by 4.00 pm Friday.  Now, this is listed for the 26th, is it not?

MR BURMESTER:   That is correct, Tuesday.

HIS HONOUR:   Tuesday the 26th.  What about your written submissions?  Are you going to rely on what is already filed or ‑ ‑ ‑

MR BURMESTER:   What we have prepared will, I think, just need some minor modifications.  We will get those in at the time of our statement of claim on the basis that we provide advance copies to the intervening States and the other parties today.

HIS HONOUR:   Right.

MR BURMESTER:   I mean, rather than put in two separate sets of proceedings, your Honour, and in case we decide not to proceed with the current proceedings, it seems best to hold the formal file until we have lodged a statement of claim and have decided which course of action we wish to take.

HIS HONOUR:   Apparently South Australia is going to intervene in these proceedings, I understand, and what about Victoria?  Is it definitely intervening, Mr McDonnell?

MR McDONNELL:   I am told, yes, your Honour, and I can indicate that having received an advance copy of the Commonwealth’s submissions last Friday night, that the State of New South Wales is likely to intervene as well.  I do not know about Queensland or the Territories or Tasmania.

HIS HONOUR:   Yes.  What do you say about time for interveners’ submissions, Mr Burmester?  It really affects you, I imagine, more than anybody else.

MR BURMESTER:   Yes, your Honour.  I suppose the sooner we could get some advance copies, the better.  I guess if I am saying we should not formally file ours until the Wednesday, I can hardly expect theirs at the same time.  I suppose 4.00 pm Friday when the defence and demurrer are due would be ideal on the basis that, if at all possible, advance copies be made available, as we have done.

HIS HONOUR:   Yes.  What I propose to do - I will make some orders formally in a few minutes - I will give you until 4.00 pm on Wednesday the 20th to file a statement of claim, together with the written submissions that you rely on.  I will dispense with the usual page limit of 20 pages on written submissions for each party and extend that to 30 pages.

I will give the State of Western Australia until 4.00 pm on Friday the 22nd to file a statement of defence and demurrer and any other appropriate pleading, together with its written submissions and in its case as well, the written submissions may extend to 30 pages.  I direct that the Commonwealth statement of claim and written submissions be served on each of the Attorneys‑General of the States and that written submissions of any interveners be filed by 4.00 pm on Friday the 22nd.  They will also have to abridge the time for the 78B notice.

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   How long do you want for that?

MR BURMESTER:   We will issue that by 4.00 pm Wednesday with the statement of claim.

HIS HONOUR:   Very well.  Yes, anything arising out of that, Mr McDonnell?

MR McDONNELL:   No, your Honour.

HIS HONOUR:   Very well. 

1. In this matter I direct that the time for serving a 78B notice to raise the question of the jurisdiction of this Court to issue a writ of prohibition in these proceedings be abridged until 4.00 pm on Wednesday, 20 May 1998. 

1. I direct the Commonwealth to file a statement of claim and written submissions in support thereof by 4.00 pm on Wednesday, 20 May.

1. I direct the Commonwealth to file a copy of its statement of claim and written submissions, not only on the State of Western Australia, the proposed defendant in the action, but also on all other State Attorneys‑General.

1. I direct the State of Western Australia to file its statement of defence, demurrer or other relevant pleading, together with its written submissions, by 4.00 pm on Friday, 22 May 1998.

1. I direct the written submissions of any interveners to be filed by 4.00 pm on Friday, 22 May.

1. I extend the number of pages of written submissions from the 20 pages required by the Rules to a maximum of 30 pages.

1. I reserve the costs of these proceedings.

Is there anything further?

MR BURMESTER:   Your Honour, just in relation to the direction about the 78B notices.  Presumably if we start new proceedings, those notices will need to cover all issues raised in the new proceedings including - and then separate 78B notices in relation to the existing proceedings and the abridgment of time will apply, as I understand it, to all those.

HIS HONOUR:   Yes.

MR BURMESTER:   Your Honour did mention a possibility of a further directions hearing on Friday.  Is that still - or should it be a matter that any of the parties could raise if thought necessary?

HIS HONOUR:   Yes, I think having regard to the fact that the defendants and the interveners have got until 4.00 pm on Friday, it is rather pointless having a directions hearing on Friday.  I give any party liberty to apply to me for any further directions in the matter, and that includes interveners as well.

MR BURMESTER:   Thank you.  I do not think there is anything further I think is necessary.

HIS HONOUR:   I will just formally amend what I said about the 78B notices to include not only any constitutional issue as to the jurisdiction of this Court to issue a writ of prohibition, but also all other constitutional issues that arise out of these proceedings. 

If there is nothing further, I will adjourn the Court.

AT 2.37 PM THE MATTER WAS CONCLUDED