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

[1998] HCATrans 187

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

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 22 MAY 1998, AT 3.38 PM

(Continued from 22/5/98)

Copyright in the High Court of Australia

MR H.C. BURMESTER:   I appear with MS V.J. HAWKINS and MR M.J. HAWKINS.  (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 for the State of Western Australia in both matters.  (instructed by the Crown Solicitor for Western Australia)

HIS HONOUR:   I have been given a copy of the statement of defence, demurrer and counterclaim, but the document does not comply with the rules, does it, in so far as it seeks to demur?  Under Order 26 rule 6 the contents of the documents have got to be set out.

MR MEADOWS:   Quite so, your Honour, and the difficulty I had is that, strictly speaking, the content of the document should be in the statement of claim rather than ‑ ‑ ‑

HIS HONOUR:   Well, not necessarily.  Order 26 rule 6 allows you to set out the documents in so far as the plaintiff’s claim depends upon it and then demur and it is not a formality because one has to see from the record of the Court that there is not a cause of action disclosed and if the statement of claim does not set out fully what the plaintiff’s case is really about, then it is up to the defendant to set out what are the relevant documents and then say, well, that is what they rely on and that does not disclose the cause of action and Order 26 rule 6 enables it to be done.  Subrule (1) is:

Where the claim or defence of a party depends, or may depend, upon the construction of a written document, and the party in his pleading refers to the document but does not set it out at length, the opposite party may, in his demurrer, set out the document at length.....and demur to the claim or defence founded upon it ‑ ‑ ‑

MR MEADOWS:   Yes, your Honour.

HIS HONOUR:   If that is done then, prima facie, it would seem to take care of your problems.  There may be a question as to whether or not Mr Burmester’s clients can simply reply to your counterclaim by a denial or whether it is necessary that they should demur to that as well.

MR MEADOWS:   Yes, I have discussed that briefly with my learned friend and he is going to consider what he is going to do to that.

HIS HONOUR:   Yes.  But subject to that, the matter can probably be up and running.  My Brother Gummow who has a keen interest in procedural matters - - -

MR MEADOWS:   That is what I was afraid of, your Honour.

HIS HONOUR:   Is going to hear this at 10.30 on Monday, in any event, to make sure that everything is in order at that stage.

MR MEADOWS:   With respect to the documents, your Honour, would a photocopy of the documents be sufficient?

HIS HONOUR:   I think so.

MR MEADOWS:   So if I was to arrange for, effectively, a book of the documents that are referred to in the pleadings that we say are germane to the demurrer - - -

HIS HONOUR:   Yes, well I think you could frame pleadings in such a way that you incorporate the annexed documents.

MR MEADOWS:   Yes.

HIS HONOUR:   I do not think it would require much ingenuity to frame a pleading along those lines about the necessity of setting it out verbatim as a paragraph in the pleadings, Mr Solicitor.

MR MEADOWS:   Yes, I understand that, your Honour.  That being so, might I seek an extension of time within which to file my defence?

HIS HONOUR:   Most certainly.  There is no problem about that.  I think that is the most satisfactory way.  I am certainly not prepared to encourage the parties to reserve questions along the lines of the document that has been handed to me.  I have never seen a case stated in quite that form before.  It is not uncommon for stated cases setting out facts to annexed documents as part of the content of paragraphs, but the proposed document headed “The question reserved”, just seems to set out a whole lot of documents and then ask whether, on those facts pleaded in the statement of claim, et cetera, there is a cause of action.  I would not be prepared to state a case in that form.  But I think the demurrer procedure seems satisfactory, subject to what you think about it because after all, counsel are the ones who know what to - - -

MR MEADOWS:   Yes.  Well, as I said to you this morning, my only concern about demurrer was content.

HIS HONOUR:   Yes.

MR MEADOWS:   And I believe I have now got content and, that being so, I am prepared to chance my arm on it, if I might say.

HIS HONOUR:   Yes.  Well, I think Order 26, rule 6, will enable you to refer to the relevant documents, if you put them in the appropriate form.

MR MEADOWS:   Yes, if it please your Honour.

HIS HONOUR:   Mr Burmester.

MR BURMESTER:   Yes, your Honour, we are happy if it proceeds down that way, rather than pursuing the question reserved or case stated any further, and we will give some thought as to our response to the counterclaim, whether we simply demur or deny that.

HIS HONOUR:   Yes.  Well, under the Rules you have got 21 days, have you not, to put on your reply?  I think we will have to shorten that on you somewhat, Mr Burmester.

MR BURMESTER:   Yes, your Honour.  No, I meant by 10.30 on Monday, or the next directions hearing, we will have a response to that.

HIS HONOUR:   Yes.  Well, Justice Gummow is probably harder on procedural matters than I am, so you better have your “I”s dotted and “T”s crossed.

MR BURMESTER:   We will do our best, your Honour.

HIS HONOUR:   My friend is just asking about the other set of proceedings, your Honour.  Perhaps we can resolve that at the directions hearing on Monday.

HIS HONOUR:   That can be dealt with on Monday, yes.

HIS HONOUR:   And this proceeding this way, we will probably expect ‑ ‑ ‑

HIS HONOUR:   Is 10.30 convenient for counsel?

MR MEADOWS:   Yes, I will be here then, your Honour.

MR BURMESTER:   It is all right with me, your Honour.

HIS HONOUR:   Yes.  Well, I do not think I need make any formal order at this stage, except you probably want leave to amend your - has your statement of defence been filed?

MR MEADOWS:   It has not been filed, your Honour, and perhaps if I could have until 10 am on Monday.

HIS HONOUR:   Yes, well I will extend the time for the first defendant to file its statement of defence, demurrer and counterclaim until 10 am on Monday next, which is the 25th, is it?

MR MEADOWS:   Yes, I think so.

HIS HONOUR:   Yes, and I will direct that the plaintiff file its reply or any demurrer to the counterclaim by 10.30 am on Monday as well.

MR MEADOWS:   Yes, your Honour.

HIS HONOUR:   Yes, there is no reason at the moment to suppose that the matter will not proceed normally on Tuesday, I think.

MR MEADOWS:   Very well, your Honour.

HIS HONOUR:   Yes, thank you for your assistance.  I am sure you have been working hard to get the case in order but I think it is necessary that the record be put in order so that it can proceed.  No doubt Justice Gummow will deal with the question of demurrer books and that but there should be no problem having regard to the resources of the Commonwealth.

MR BURMESTER:   And of the Court, your Honour, I am sure.

HIS HONOUR:   Yes.  Very well, I will adjourn this further directions hearing until Monday and Justice Gummow will preside on Monday in respect of the case.  Thank you.  Adjourn the Court.

AT 3.47 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 25 MAY 1998