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

[1998] HCATrans 188

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

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

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 22 MAY 1998, AT 9.05 AM

(Continued from 18/5/98)

Copyright in the High Court of Australia

MR H.C. BURMESTER, Acting Solicitor-General for the Commonwealth:   I appear with MR M.J. HAWKINS in both matters on behalf of the Commonwealth.  (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, the first defendant in No C4 of 1998.  (instructed by the Crown Solicitor for Western Australia).

HIS HONOUR:   Yes, thank you.  I have the certificate from the Senior Registrar certifying that she holds letters from Edwards and Lark, solicitors for Mineral Sand Mining and Development Pty Limited and Enmic Pty Limited, the third and fourth defendants, advising that they intend to abide by the decision of the Court in this matter except as to costs, and that there will be no appearance by them at the directions hearing. 

The Registrar has not certified but she has received a letter from the Western Australian Crown Solicitor to advise that the first respondents in this matter, The Wardens of South West Mineral Field, do not intend to appear in the proceedings either at the directions hearing listed for 22 May 1998 or at the hearing of the matter listed for 26 and 27 May 1998 and that they will abide the decision of the Court except as to costs.  Yes, Mr Burmester.

MR BURMESTER:   Yes, your Honour.  It seemed appropriate to have a directions hearing just to make sure that everything was in order.  I think your Honour has received some draft minutes of orders and an amended written statement of claim.

HIS HONOUR:   Yes.  Well, in P12 you want to join the State of Western Australia as a respondent in the proceedings?

MR BURMESTER:   Well, your Honour, what I was going to suggest was that we deal with C4 to start with because it may be that P12 may still fall away, in particular if we could deal with proposed minutes 1, 2 and 3 in relation to C4, we would seek leave to amend the written statement of claim in the manner indicated and ‑ ‑ ‑

HIS HONOUR:   Yes, I have seen the amended written statement of claim.

MR BURMESTER:   I think my friend has seen that and has no objection to that.

MR MEADOWS:   I have no objection to those three orders being made, your Honour.

HIS HONOUR:   Yes.

MR BURMESTER:   Now, your Honour, we understand that Western Australia does not propose to demur to the statement of claim but, rather, would wish to lodge a defence, however, the defence is not going to dispute material matters of fact and, if that is so, then it may be that the easiest course, given that there are no matters of fact in dispute, will be to discontinue the other proceedings for prerogative relief, agree to a set of documents for purposes of C4 and proceed on that basis.

HIS HONOUR:   Well, how would you ask the Full Court to deal with the matter?

MR BURMESTER:   Your Honour, we would seek an order from yourself referring the matter for hearing to the Full Court, if that was necessary.  It raising constitutional matters.  I was not sure whether that is necessary but, if it is, we certainly would seek an order.

HIS HONOUR:   In the ordinary course of events it would be but I think perhaps an order can be made on Tuesday morning after the statement of defence has been filed.

MR BURMESTER:   Referring the matter or ‑ ‑ ‑

HIS HONOUR:    Referring the matter, yes.  I am certainly not going to refer a statement of claim at this stage, notwithstanding that you say that there will probably only be a statement of defence.

MR BURMESTER:   Yes.  And would we leave matters of discontinuance until then, your Honour?

HIS HONOUR:   Well I think so.  Maybe the appropriate - - -

MR BURMESTER:   I mean, what we hope to do if Western Australia was going to go down that course was to avoid the proliferation of documents.  We could create, as it were, a new application book and agreed set of documents and that would then be the material the Bench would have before it on Tuesday.

HIS HONOUR:   What I do not understand is what is going to be in the statement of defence.  Are there going to be any denial of any of these questions of fact?

MR BURMESTER:   Well, perhaps my friend can indicate that.

MR MEADOWS:   If it please your Honour.  We will not be denying any of the material facts in the statement of claim, so we will be putting in issue the contentions of law which are contained in the statement of claim.

HIS HONOUR:   Yes.  Well it is rather unusual to refer the statement of claim and the defence as such to - - -

MR MEADOWS:   Well, I think, as my learned friend has suggested though, there are a number of documents which have been exhibited to affidavits in P12 of 1997 and we are prepared to agree to those documents going in by consent and being the evidence in the case, in effect.

HIS HONOUR:   I certainly much prefer this to go by way of a stated case, but I cannot think off the top of my head any reason why the action could not be referred to the Full Court.  I cannot recollect any express power in the Rules to that effect.  I am just wondering what is the best way to deal with the matter.  It may be better if the parties drew up a case to be stated under section 18 of the Judiciary Act and that could perhaps formally be put in front of a Justice on Monday or, if necessary, by me.

MR BURMESTER:   Your Honour, that might, if there was plenty of time, be a desirable course.  I am a bit reluctant to embark on that matter.  If an order was made in the terms of proposed order 4 that the two matters be heard concurrently, would that not get the matter before the Full Court?

HIS HONOUR:   Well, it is a question of getting it before the Full Court, but it is a bit unsatisfactory.  You are, in effect, asking the Full Court to decide the matter in the original jurisdiction and nothing occurs readily to mind that would prevent the Court as a court making the declarations if necessary, but usually one does it by way of case stated or by way of demurrer.  Why can you not demur to this statement of claim if you do not really dispute the facts?  I mean, that is your case.  You say this statement of claim does not disclose a cause of action.

MR MEADOWS:   Yes, we do say that, your Honour, but it seems to us that rather than demur, that it would be preferable if the factual material which is in these affidavits was before the Court because it gives some content to the pleading and, for example, when we talk about the Crown

grants, you actually get the Crown grants before the Court so that they can actually see the documents.

HIS HONOUR:   Yes.

MR MEADOWS:   And that has been one of the driving forces behind our decision not to demur.

HIS HONOUR:   Yes.  Well, at this stage I am very reluctant to refer the actual action as such to the Court.  I certainly would not do it without consulting other members of the Court.  If the parties are able to agree on a case stated, annexing documents, the matter can be referred to the Full Court, even on Tuesday morning if necessary, but at this stage I would be reluctant to refer the action itself to the Full Court for hearing.

MR MEADOWS:   Well, in that event, your Honour, maybe I should give some further thought to whether we should demur.

HIS HONOUR:   I do not see why you should change your view because the point you make seems to me to be a valid point.  You have assertions in the statement of claim, the content of which are not filled out, and from your point of view you want to fill out the content of those assertions to provide a foundation for your legal argument and, indeed, it may well be the case - I have not thought it through, but it might be difficult to demur to the statement of claim in the form in which it is without content or further content.

Mr Burmester, you may be able to proceed on your writ of prohibition.  In any event, there are those other problems I mentioned to you.  For my part, subject to hearing any detailed argument, I would not be concerned about the jurisdiction matters but, as I mentioned to you the other day, I am not sure that my view is the unanimous view of the Court about it.

MR BURMESTER:   Yes, your Honour.  Well, perhaps though, if my friend files his defence and then we can talk about possibly an agreed question or statement or case stated.

HIS HONOUR:   Yes, it may be very easy to draft a statement of claim in this day and age, a statement of claim on the word processor.  Most of the facts are there - - -

MR BURMESTER:   That is what we thought on Monday, your Honour, and your Honour can see from our amendment we had to make some changes, but yes, I am sure it may be possible.  On that basis I will leave matter P12 on foot for the moment.

HIS HONOUR:   Yes, subject - you want to join the State of Western Australia?

MR BURMESTER:   And I want to join the State of Western Australia.  I think that is probably appropriate to the circumstances at this stage.

HIS HONOUR:   Yes.  Well, reverting to matter P12, I will make an order that the State of Western Australia be joined as a respondent in these proceedings.  In the event that matter C4 goes before the Full Court on Tuesday, that matter C4 be heard concurrently with P12.  Now, so far as C4 is concerned, you would certainly want leave to amend your written statement of claim, Mr Burmester?

MR BURMESTER:   Yes, your Honour.

HIS HONOUR:   Leave to file a clean copy of the statement of claim.  You would also want the clean copy to stand as the statement of claim.  You would want the 78B notice filed and served on Wednesday to stand as the section 78B notice in these proceedings.

MR BURMESTER:   Yes, your Honour.  In relation to 78Bs, can I mention that it seems to us that Western Australia ought to issue a revised 78B in relation to the acquisition point, a matter on which they had issued an earlier notice.

HIS HONOUR:   Yes.

MR BURMESTER:   But they have not yet done that in relation to C4 and I think there may be some change, and given the content of the draft submissions I have seen from the State of Western Australia, it may be that they ought to also cover the question of the meaning of a “Commonwealth place” in 52(i) of the Constitution. I think my friend is agreeable to doing that.

HIS HONOUR:   Yes.  Otherwise I will stand C4 over and Western Australia can put on its statement of defence as quickly as possible and the parties should get together with the draft case stated and perhaps the matter can come before me.  Perhaps it might be better if it comes before a Justice on Monday.  It may not necessarily be me but I will certainly arrange for some Justice to be here on Monday to hear it.

MR BURMESTER:   That is satisfactory to us, your Honour.

HIS HONOUR:   Yes.  What about the preparation of a book of ‑ ‑ ‑

MR BURMESTER:   Preparation of - - -?

HIS HONOUR:   Of a book containing the relevant documents.  You are all right, I take it, in P12.

MR BURMESTER:   In P12 there is no problem.  Proposed order 5 there was that we file and serve the book of agreed documents.  It may, of course, depend a bit on if we go down the case stated route.

HIS HONOUR:   Yes, exactly, yes.

MR BURMESTER:   We will liaise with the Registrar and seek to ensure that an index to any book and any agreed document book is settled as soon as possible.

HIS HONOUR:   I think I might put it in for a directions hearing at 3 o’clock on Monday.

MR BURMESTER:   Thank you, your Honour.

HIS HONOUR:   And see what the situation is then.  Anything further, Mr Burmester?

MR BURMESTER:   Your Honour, we are just talking about if there was some easy way in which to get the evidence in P12 into the C4 matter and whether that would facilitate proceedings.

HIS HONOUR:   I think if you are going to reverse C4 in any way to the Full Court then it needs to be in an appropriate form and the appropriate form is either a demurrer or a case stated.

MR BURMESTER:   Yes.

HIS HONOUR:   Unless Mr Meadows wants to move to strike out your statement of claim annexed to the documents and put that summons before the Full Court.

MR MEADOWS:   Yes, I have had enough problems with that before the Full Court here before, your Honour, not to even think of venturing on that course.

HIS HONOUR:   Yes.  Anything further, Mr Meadows.

MR MEADOWS:   No, your Honour.

HIS HONOUR:   Mr Burmester.

MR BURMESTER:   No, your Honour.

HIS HONOUR:   Very well, I will adjourn this further directions hearing until Monday.

AT 9.22 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 25 MAY 1998