Wurridjal & Anor v Commonwealth of Australia

[2007] HCATrans 720

[2007] HCATrans 720

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M122 of 2007

B e t w e e n -

REGGIE WURRIDJAL

First Plaintiff

BAWINANGA ABORIGINAL CORPORATION

Second Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON MONDAY, 3 DECEMBER 2007, AT 9.32 AM

Copyright in the High Court of Australia

MR R. MERKEL, QC:   If your Honour pleases, I appear with my learned friend, MR A.M. DINELLI, for the plaintiff.  (instructed by Holding Redlich)

MR H. C. BURMESTER, QC:   If it please the Court, I appear for the defendant.  (instructed by Australian Government Solicitor – Barton)

HIS HONOUR:   Yes, Mr Merkel.

MR MERKEL:   Your Honour, if I could just briefly explain what has occurred since the last hearing.  In the transcript your Honour had raised the possibility of a demurrer, at least on part of the claim, and the parties have pursued that objective and, as a result, we have been having extensive discussions on the statement of claim which has been modified to try and meet whatever the requirements would be for a demurrer on the part of the Commonwealth.  Unfortunately, we have not been able to resolve that finally.  As at today I think one of the problems has been that last week’s events have caused some difficulty in getting final instructions.

What we have done, your Honour, today is we have issued a summons seeking first of all to add a plaintiff.  If I can briefly explain that, your Honour.  When we looked at some of the traditional rights and also the native title rights and interests, they divided up between certain rights and interests that men would have and women would have and it was thought necessary in case the factual issues ever evolve to that level of detail that there be a female plaintiff as well as a male plaintiff.

HIS HONOUR:   Just as to that, do we have a written consent of that plaintiff because I cannot join her without it?  You see rule 21.05.2 – if you are joining a plaintiff you have to have the written consent of the plaintiff.

MR MERKEL:   Your Honour, that is correct and as a result of that rule what we would be proposing to do is to adjourn the summons, but we wanted to put the summons before the Court with the proposed pleading which will require some further modification to get to the stage of the demurrer.  If not a demurrer, your Honour, we would seek to try and present facts for a case stated.  We believe we are fairly close to that situation and we are quite anxious, if possible, to retain the possibility of the early March hearing and we are very much in the Court’s hands as to the timetable that would be required for that.

HIS HONOUR:   If you cannot agree on a demurrable statement of claim, it is not immediately apparent to me how you could possibly agree on a wider statement of facts that goes beyond a demurrable statement of claim. 

MR MERKEL:   I appreciate the force of that, your Honour.  We are hopeful of agreement on a demurrable statement of claim.  We have made our position clear to our learned friends that by assuming the facts in the statement of claim if any factual inquiry were necessary after the demurrer should the plaintiff be successful on the demurrer, the fact of the demurrer could not possibly prejudice the defendant’s position on those facts and we do not understand there is any insurmountable hurdle as far as the Commonwealth is concerned to a demurrer.  We just have not been able to get agreement on it, but my learned friend, Mr Burmester, may be better placed than I to tell your Honour as to the Commonwealth’s position on that.

We do understand the statement of claim in its present form has broadly been structured to meet the discussions and suggestions of the Commonwealth who have been quite co‑operative in seeking to advance the matter, but we have not been able to reach final agreement on it.  We would hope that that agreement may not be far off.

HIS HONOUR:   I would be in a position to have the matter mentioned again on Friday next, the 7th, and I think that the parties should act on the assumption, subject to what Mr Burmester has to tell me, Friday the 7th is the time when we have to know where this case is going.

MR MERKEL:   We are indebted to that, your Honour, and we are content with that adjournment.

HIS HONOUR:   Yes.  Mr Burmester, what do you want to add, if anything, to what has been said?

MR BURMESTER:   Your Honour, only to confirm that yes we have in a co‑operative manner tried to improve the statement of claim so that we would find it easier to demur to.  I think we agree that trying to agree a stated case is likely to prove even more difficult.  We are giving consideration still to whether we should plead as well as demur in order to protect our position.  I know what my learned friend said that if he was successful in response to the demurrer, that ought not prejudice our position to then plead to the material.  The Rules of course are silent on the point, but it is our understanding that that would be the position, but we are still considering whether we should ‑ ‑ ‑

HIS HONOUR:   But you can plead and demur, can you not, Mr Burmester, under the Rules?  I thought the Rules preserved the past practice of pleading and demurring.

MR BURMESTER:   We can do both, your Honour, yes, there is no doubt about that.  It is more a question if we do not plead now, what would be the position if our demurrer was not successful and I would assume that the position was that the case had got to the stage of no pleadings having been put in response to the statement of claim and it would go on from there.

HIS HONOUR:   No, I would have thought ordinarily, and it is not a matter to which I have previously given attention, but if a demurrer is put on without a pleading and the demurrer is overruled, ordinarily judgment would follow.  Now, I suspect but do not know, and as I say I have not had occasion to look at the matter, if the Commonwealth is to plead and demur, it may at least be safer to choose to plead and demur now rather than demur in the hope of subsequently preserving the capacity to plead over to the statement of claim that has been, on the hypothesis we are now considering, held to disclose a cause of action.

MR BURMESTER:   Your Honours, it is precisely those concerns which led the Commonwealth to think that maybe the better course is to plead and demur.  If that was the preferred course, then having a pleading by the end of this week I think would be impossible, very difficult, but at least we might be in a position to indicate to your Honour that that was the course we were proposing to follow and what was possible.  I think we are close to resolving most of the factual problems we have with the statement of claim so that it will be in a form that will be able to be demurred to.  There are still some areas though which we want to explore with our learned friend, but beyond that, your Honour, I am happy to return on Friday to tell your Honour where we are at.

HIS HONOUR:   If, and again subject to what the parties may then wish to say, the parties are at a point by Friday next where we know that the Commonwealth will demur but the Commonwealth is not in a position then to say whether it will both plead and demur and have its pleading on, then we can go forward fairly comfortably I would have thought on the assumption that the March date can be preserved for hearing of the demurrer.

I understand the difficulties that the Commonwealth may encounter in preparing a pleading in a form which adequately reflects the obtaining of sufficient instructions at this time of transition by Friday next, but what I think the parties would be well advised to assume is that Friday is an important time to know whether we are going to have a proceeding, assumedly a demurrer, that can stand in the list of cases for March.

MR BURMESTER:   Yes, your Honour, and we will endeavour to have an answer for you on Friday.

HIS HONOUR:   Yes.  Now, it would be better I think, again subject to what either side wishes to say, to make no orders about adding plaintiffs or amending parties yet, and no order yet about amending the statement of claim on the assumption that there may yet be still further changes that have to be made and let us make the amendments once and only once.

It would be of assistance to me if the parties, by close of business Thursday, could indicate to the Melbourne Registry where we are at.  I acknowledge the possibility that on the Thursday night where the parties are at may be still in a state of delicious uncertainty, but at least let us know what is known by Thursday night.

Mr Merkel, if you could attend to putting on a consent in writing from Ms Kolbi that would solve the parties’ question and otherwise if I were to stand the matter over till 9.30 on Friday next with costs reserved.  Is there anything else that either side would wish to say?

MR MERKEL:   For our part, no, your Honour.

MR BURMESTER:   Not from me, your Honour.

HIS HONOUR:   Thank you, Mr Burmester.  I will adjourn the matter to Friday next at 9.30 in Melbourne and, Mr Burmester, if it is again more convenient for you to deal with your end of the matter by video link to Canberra, then by all means it is a case of whatever is going to be the more convenient course for the parties.

MR BURMESTER:   Yes, your Honour.  Thank you.

HIS HONOUR:   Yes, those orders are made.  Adjourn.

AT 9.43 AM THE MATTER WAS CONCLUDED