Wilson v Anderson and Others S101/2000

[2000] HCATrans 793

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S101 of 2000

B e t w e e n -

DOUGLAS WILSON

Applicant

and

MICHAEL ANDERSON FOR AND ON BEHALF OF THE EUAHLAY‑I DIXON CLAN

First Respondent

THE MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)

Second Respondent

NEW SOUTH WALES ABORIGINAL LAND COUNCIL

Third Respondent

Directions Hearing

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO SYDNEY

ON THURSDAY, 21 DECEMBER 2000, AT 10.10 AM

Copyright in the High Court of Australia

__________________

MR J.M.C. EMMERIG:   May it please the Court, I appear for the applicant.  (instructed by Blake Dawson Waldren)

MR E.S. NEUMANN:   May it please the Court, I appear for the first respondent.  (of Craddock Murray & Neumann)

MR S.B. LLOYD:   I appear for the second respondent.  (instructed by the Crown Solicitor for New South Wales)

MR J. BASTEN, QC:   I appear for the third respondent.  (instructed by Andrew Chalk Associates)

HIS HONOUR:   Yes, Mr Basten.

MR BASTEN:   Your Honour, we have provided the Court with a set of draft directions yesterday.  There have been one or two variations to that.  Could I hand up another copy and could I also indicate some changes which have been suggested by other parties which have not, I am afraid, been incorporated into the copy that your Honour has.

HIS HONOUR:   Yes.  Before you do, there is an application to intervene.

MR BASTEN:   Yes.  I am sorry.

MS R.J. WEBB:   If the Court pleases, I appear for the Attorney-General for the Northern Territory seeking leave to intervene.  (instructed by the Solicitor for the Northern Territory)

HIS HONOUR:   Yes.  Well, I will grant you leave to intervene in these proceedings, but just as Justice Hayne did in the Ward Case, I think intervention generally should be decided by the Full Court rather than by myself.  But you will be able to make your submissions, if necessary, concerning the directions.  Have you been given a copy of the directions that Mr Basten is proposing?

MS WEBB:   No, we have not, your Honour.  However, I am happy to listen and hear what is being said and I doubt I will have anything at all to say.

HIS HONOUR:   Yes, thank you very much, Ms Webb.

MS WEBB:    Thank you.

HIS HONOUR:   Yes, Mr Basten.  I have made some changes myself to my own copy.  Could you tell me ‑ ‑ ‑

MR BASTEN:   Yes.  The changes that I made, your Honour, in paragraph 1, the clauses which we sought dispensation from are, in addition to those your Honour had, 7(i), which is simply the accompanying bundle because we were proposing to do that separately and ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, perhaps we should go through them one at a time.  For your benefit, Ms Webb, the first direction that is sought is that:

Compliance with clauses 6, 7(a) and (i), 8 and 9 of the Practice Direction No 1 of 2000 be dispensed with, to the extent that they prescribe the times for filing written submissions and the length of those submissions and accompanying material. 

Now, Mr Basten, in respect of (i), you want to cross that out, do you?

MR BASTEN:   No, I added that to the one your Honour had.

HIS HONOUR:   You have added it.

MR BASTEN:   Yes.

HIS HONOUR:   But why should you be given unlimited submissions in this particular case?

MR BASTEN:   We are happy to have a limit, your Honour, if that is thought appropriate.  It had been left to counsel, I think, in the other two major native title matters and ‑ ‑ ‑

HIS HONOUR:   But they were dealing with evidentiary matters.

MR BASTEN:   Yes, that is true.

HIS HONOUR:   The matters here are much narrower in scope, are they not?

MR BASTEN:   Your Honour, it is said that the applicant does not wish to reagitate Wik, which I take to mean that we merely have to apply the principles established by Wik in this case.

HIS HONOUR:   Well, that assumes that they apply in this case.

MR BASTEN:   That is true.

HIS HONOUR:   That is the argument put against you, is it not?

MR BASTEN:   That is the argument, but on that assumption then we did prepare a fairly lengthy historical analysis for the Full Court.  I think the majority noted that we departed from that somewhat in our approach to the Full Court.  We do not say that is necessary, but it is just difficult to know whether it is necessary or not until ‑ ‑ ‑

HIS HONOUR:   Well, perhaps I might hear other counsel.  Mr Emmerig, what do you say about length of submissions?

MR EMMERIG:   It was felt before the Full Court that there was some benefit in taking the court through the history of the legislation going back to the 1800s.

HIS HONOUR:   I understand that.

MR EMMERIG:   The applicant provided submissions of approximately about 35 pages in length and we would be comfortable with a page limit on the submissions in the order of, say, 50 or 60 pages.

HIS HONOUR:   Yes.  Mr Neumann, do you have anything ‑ ‑ ‑

MR NEUMANN:   Nothing further to say, your Honour.

HIS HONOUR:   No.  Mr Lloyd?

MR LLOYD:   I am instructed that the Minister will take a more active role in the High Court than he did in the Full Court as a result ‑ ‑ ‑

HIS HONOUR:   Is that pro‑applicant or pro‑respondent?

MR LLOYD:   It will be somewhere in between, your Honour.  I do not know that the Minister will accept everything the applicant says, but my understanding is that the submissions are likely to be that a lease of this kind does affect an extinguishment.

HIS HONOUR:   Right.  What about the length of submissions?

MR LLOYD:   The length of submissions would involve ‑ we would anticipate putting in from the Crown’s perspective some material about the history of the legislation and in relation to this particular kind of lease as well.  So some amount longer than 20 but we would certainly think we could do it in less than 40 pages.

HIS HONOUR:   Right.  Well, what about 50 or 60?  Does anybody feel any problem about that?  If there is any problem, you can always make an application.  Ms Webb, would you be content with that?  I am not sure that interveners should be given that length of submissions, in any event.

MS WEBB:    Indeed, your Honour, we probably would not be asking for that length of submission, I would suspect.

HIS HONOUR:   Yes.  Well, perhaps I might agree to make an order in terms of order 1 but add to it a clause “provided that the written submissions are not to exceed 50 pages in length”.

Now, paragraph 2, the directions sought, “The applicants file and serve written” – well, there is only one applicant, is there not?

MR BASTEN:   There is, your Honour, yes.  It should be “The applicant”.

HIS HONOUR:  

The applicant files and serves written submissions in support of his application on or before 4 pm Eastern Summer Time.

MR BASTEN:   I put a number of dates in brackets, your Honour, working back from, in effect, early May as being ‑ ‑ ‑

HIS HONOUR:   I think May is the absolute earliest date that you would have any real prospect of getting on.

MR BASTEN:   We understood that.  We would extend the dates if it were available but I was working back from the first week of May.

HIS HONOUR:   Paragraph 3:

The second respondent file and serve written submissions on or before 4 pm Eastern Summer Time on the 19th.

Are you happy with that, Mr Lloyd?

MR LLOYD:   Yes, your Honour.

HIS HONOUR:   Paragraph 4 – this concerns you, Ms Webb.

Any person or body seeking to intervene in support of the applicant or the second respondent file and serve written submissions –

(a)  in support of their application for intervention, and

(b)  containing the substance of the matters they would wish to put if granted leave to intervene on or before 30 March 2001 ‑

I am not sure whether Eastern Summer Time will still be in force on 30 March, but we will put:

on or before 4 pm  ‑ ‑ ‑

MR BASTEN:   Put EST, your Honour, and it was ambiguous.

HIS HONOUR:   “On 30 March”.  That should give you sufficient time, Ms Webb.

MS WEBB:   Indeed it will, your Honour.  We are content with that, thank you.

HIS HONOUR:   Paragraph 5 is that the respondents – that should be the third respondent ‑ ‑ ‑

MR BASTEN:   It should be first and third, I think, your Honour.

HIS HONOUR:   Yes.  Paragraph 5 will read:

The first and third respondents file and serve written submissions on or before 4 pm Eastern Standard Time on 20 April 2001.

Are you content with that, Mr Neumann?

MR NEUMANN:   Yes, indeed, your Honour.

HIS HONOUR:   And you are, of course, Mr Basten?

MR BASTEN:   Yes, your Honour.  I have talked to Mr Emmerig.  He thought we may need to insert another paragraph after that for the applicant and the second respondent, if it wishes, to file submissions in reply.

HIS HONOUR:   Yes.  I was going to raise that.  Mr Emmerig, how long would you want?

MR EMMERIG:   I had proposed a date of 4 May, which I think is two weeks clear after the first and third respondents file their submissions.

HIS HONOUR:   Right.  So perhaps if I provide:

The applicant and the second respondent to file any submissions in reply by 4 pm Eastern Standard Time on 4 May 2001.

MR EMMERIG:   The fourth was proposed.  If there is some prospect of a hearing in that week I am happy to bring that date forward.

HIS HONOUR:   Yes.  The page limit for submissions in reply is five pages, Mr Emmerig and Mr Lloyd.  You may want longer than that.

MR EMMERIG:   Indeed.  It is difficult to give an estimation at this stage but ‑ ‑ ‑

HIS HONOUR:   You may want to answer historical and other material.  What about 30 pages.

MR EMMERIG:   It is a card game really, is it not?  Thirty pages, perhaps with liberty or leave to seek a variation if that is required.  But we understand the discipline of brevity.

HIS HONOUR:   I will add to paragraph 6 a sentence:

Written submission in reply not to exceed 30 pages.

What was paragraph 6 in the draft will become paragraph 7. 

MR BASTEN:   It should be applicant, singular, provide.

HIS HONOUR:   Yes.  Paragraph 7 will read:

On or before 4 pm Eastern Summer Time on 9 February 2001 the applicant provide the respondents with a draft index of materials to rely on before the Full Court. 

Are all parties happy with that?  Ms Webb, are you happy with that?  Did you hear what I said?

MS WEBB:   Your Honour, I wonder if it could also include the potential intervener as well.

HIS HONOUR:   Yes.  Do you have any problem with that?  I will add to paragraph 7:

The applicant provides the respondents and –

I will just simply say “the Attorney‑General for the Northern Territory” since you are a potential intervener.  There may be others.

MS WEBB:   Thank you, your Honour.

HIS HONOUR:   Paragraph 7 will now be amended to read:

On or before 4 pm Eastern Summer Time on 9 February 2001 the applicant provide the respondents and the Attorney‑General for the Northern Territory with a draft index of materials to be relied on before the Full Court.

Paragraph 7 will now become paragraph 8.  It provides:

Within 14 days of receiving the draft index prepared by the applicant the respondents and the Attorney‑General for the Northern Territory advise the applicant of any additional material to which they intend to make reference in submissions to the Full Court and which they wish to have included in the proposed bundle.

MR BASTEN:   It raises an issue, your Honour, about what interest they could possibly have in putting more material before this Court.  We are talking about a New South Wales western division lease.  It gets close to the border, I suppose, but I am in your Honour’s hands.

HIS HONOUR:   It is a matter of convenience.  If there is any fight about it, one can always come back before me.  I appreciate the force of what you put but there does not seem much point in making them a party to the previous paragraph if ‑ ‑ ‑

MR BASTEN:   No, I agree with your Honour.  I should have said it earlier.

HIS HONOUR:   So paragraph 8 will be:

Within 14 days of receiving the draft index prepared by the applicant, the respondents and the Attorney‑General for the Northern Territory advise the applicant of any additional materials to which they intend to make reference in submissions to the Full Court and which they wish to have included in the proposed bundle.

It is possible, Mr Basten, they may have unearthed some historical material which has escaped the parties’ notice.  The old paragraph 8 will become paragraph 9:

On or before 4 pm Eastern Summer Time on 5 March 2001 the applicant file and serve on the respondents and the Attorney‑General for the Northern Territory three copies each of the bundle of materials to be relied upon.

A new paragraph 10:

Each party have liberty ‑ ‑ ‑

MR EMMERIG:   I am sorry, your Honour, I wish to be heard on that next paragraph.  Just to make it “a copy of the bundle of materials”, just one copy.  I anticipate that it will be – by the time we do 10 copies for the Court and then one copy of eight or nine volumes of lever arch folders for each party, that will be a substantial amount of material, so to triplicate that would be ‑ ‑ ‑

HIS HONOUR:   So, you want one copy instead of three?

MR EMMERIG:   “Applicant file and serve on each respondent a copy of the bundle of material to be relied on”, and of course the Attorney‑General for the Northern Territory.

HIS HONOUR:   Paragraph 9 will be amended to read:

On or before 4 pm Eastern Summer Time on 5 March 2001 the applicant file and serve on the respondents and the Attorney‑General for the Northern Territory a copy of the bundle of materials to be relied upon.

Paragraph 10 will now read:

Each party have liberty to apply on seven days notice in writing to the other party.

Paragraph 11:

The costs of this day be costs in the application.

Is everyone happy with those orders?  I will certify that this is a proper matter for the attendance of counsel in chambers.  I will just now formally give direction.

MR BASTEN:   Could I just mention something, your Honour?  I noted that in the other two native title matters which had extensive materials that their Honours listed a further directions hearing.  I do not know whether your Honour wants to do that at this stage.

HIS HONOUR:   I thought about that, but this matter seems to be in a very different dimension to the other matter.

MR BASTEN:   I think it is a matter in which probably the parties can work out between themselves if any difficulties of an administrative nature arise.  Thank you, your Honour.

HIS HONOUR:   I will make the following orders in this matter:

1.  Compliance with clauses 6, 7(a) and (i), 8 and 9 of the practice direction No 1 of 2000 be dispensed with to the extent that they prescribe the times for filing written submissions, the length of those submissions and accompanying materials provided that written submissions are not to exceed 50 pages in length.

2.  The applicant file and serve written submissions in support of his application on or before 4 pm Eastern Summer Time on 5 March 2001.

3.  The second respondent file and serve written submissions on or before 4 pm Eastern Summer Time on 19 March 2001.

4.  Any person or body seeking to intervene in support of the applicant or the second respondent file and serve written submissions –

(a)  in support of their application for intervention, and

(b)  containing the substance of the matters they would wish to put if granted leave to intervene on or before 4 pm EST 30 March 2001.

5.  The first and third respondents file and serve written submissions on or before 4 pm Eastern Standard Time on 20 April 2001.

6.  The applicant and the second respondent to file any submission in reply by 4 pm Eastern Standard Time on 4 May 2001.  Written submissions in reply not to exceed 30 pages.

7.  On or before 4 pm Eastern Summer Time on 9 February 2001 the applicant provide the respondents and the Attorney‑General for the Northern Territory with a draft index of materials to be relied on before the Full Court.

8.  Within 14 days of receiving the draft index prepared by the applicant, the respondents and the Attorney‑General for the Northern Territory advise the applicant of any additional material to which they intend to make reference in submissions to the Full Court and which they wish to have included in the proposed bundle.

9.  On or before 4 pm Eastern Summer Time on 5 March 2001 the applicant file and serve on the respondents and the Attorney‑General for the Northern Territory a copy of the bundle of materials to be relied upon.

10.  Each party have liberty to apply on seven days notice in writing to the other parties.

11.  Costs of this day to be costs in the application.  The notice of motion filed on behalf of the Attorney-General for the Northern Territory on 18 December 2000 for leave to intervene in the proceedings be referred to the Full Court which hears the appeal.

I certify that this was a proper matter for the attendance of counsel in chambers.

Is there anything further?  Adjourn the Court.

AT 10.33 AM THE MATTER WAS ADJOURNED