Wurridjal & Anor v Commonwealth of Australia

[2007] HCATrans 630

[2007] HCATrans 630

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

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 1 NOVEMBER 2007, AT 9.30 AM

Copyright in the High Court of Australia

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

MR H.C. BURMESTER, QC:   Your Honour, I appear for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Merkel.

MR MERKEL:   Your Honour, there has been a consensus reached between ourselves and my learned friend as to how the matter might proceed subject to your Honour’s views on that process.

HIS HONOUR:   Yes.

MR MERKEL:   Your Honour, the first thing is a minor matter, and that is that we would ask for leave under Order 3 to amend the statement of claim.  There are two minor matters that need correction and my learned friend is prepared to consent to that and we will file an amended statement of claim by tomorrow.  They just go to technical matters.

HIS HONOUR:   Yes.

MR MERKEL:   The second, your Honour, is that we are in agreement that the matter could best move forward by remaining in the Court on the basis that the plaintiffs and the Commonwealth seek to agree on facts or either a special case or a case stated and for the questions then, subject to your Honour’s views on the matter, go to a Full Court and that there be no remission at this stage.

HIS HONOUR:   Yes.

MR MERKEL:   What we are anxious to do, your Honour, subject to the Court’s calendar is to see if there is any possibility of having a special case agreed and directions made that would enable a hearing, if the Court is able to accommodate it, at the end of February or early in March.  The current situation is that the land in question, as we have set out, is in what I might refer to as a second tranche of leases that take effect in the middle of February.  My learned friend has indicated that at the moment there is no intention on the part of the Commonwealth to bring the matter forward and that we are having conversations about avoiding any interlocutory application that might change the status quo. 

The lease itself without more would not change the status quo, but if the intervention actually resulted in dispossession of existing businesses or existing enterprises, that would be a different situation.  But we do not need to do any more other than inform your Honour that the negotiations are taking place.  My learned friend is encumbered somewhat by the fact that the government is in a caretaker mode, but it is not anticipated that the status quo at this stage is likely to change before mid-February and if the matter were able to be brought on in the Court at the end of February, the parties would be seeking to have a timetable that could achieve that.  The precondition for that, of course, your Honour, is agreement on the facts.

HIS HONOUR:   Just as to that, if we were to aim for a date in the second week of the sittings commencing at the end of February, so if we were to aim for a date in the week commencing 4 March, what does that work backwards to produce?  I think whatever we get to has to be formulated, in effect, by working backwards.

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   I think that it would require, would it not, for the parties to come back, certainly before the end of this calendar year, but most likely would it not mean coming back by the end of this month?

MR MERKEL:   What I had in mind, your Honour, is realistically to endeavour to come back early in December, because the facts for the most part are within the plaintiff’s knowledge - there are few facts within the Commonwealth knowledge - and what we have to do is assemble those facts and put them in the form of a proposed special case and take up our learned friend’s suggestion that representative facts may be sufficient so we do not have to exhaust all of the relevant facts that go to identify the property and the nature of the acquisition that is being contended for, but ‑ ‑ ‑

HIS HONOUR:   Well, it may be that I could deal with the matter on the morning of Monday, 3 December, or late in the week immediately preceding that.  The sittings commence Tuesday, 4 December.  If the parties are willing to come to Canberra, of course, so be it I will do it out of Court hours during the Canberra sittings, but if you wanted to deal with it in Melbourne it may be that Monday 3 at 9.30 is a date to which you could work.

MR MERKEL:   That is, I think, a date that is suitable for us and my learned friend has indicated it is suitable for him.  We would hope, I would not want to put it higher than that, that before that hearing we would be in a position to present either a special case or some form of agreed process so that your Honour would have an indication at the hearing as to what the likely direction of the matter is to be.

HIS HONOUR:   As to that, special cases have their curious difficulties.  If the parties agree on a special case, so be it.  There would remain the question of whether it should be referred into a Full Court, but it occurred to me on reading this pleading that the problems about a special case might be acute.  I do not pretend to have digested this pleading as fully as I should.  May I understand, though, whether in important respects the pleading as it presently stands hinges about paragraph 24 and paragraph 26 and paragraph 28, each of which is introduced by the words “The following matters, amongst others, result in the acquisition of” – identified property – “being an acquisition that is not on just terms”.  Firstly, my eyes lit upon “amongst others”.

MR MERKEL:   I can understand that.  I think, your Honour, that the concern we had is that we have not completely mastered the nature and the legal characterisation of the property concerned and we were concerned not to, in effect, say that this is exhaustive, but we accept that when the matter comes back the “amongst others” would have to be no more.

HIS HONOUR:   It particularly excited my attention in the context of the proposal that there might be going forward by special case.  Secondly, I note that a common form adopted in some of the subparagraphs of the paragraphs I have identified is that there is a reference to a subject, be it compensation or otherwise, as being “uncertain in its operation and effect and is unreasonable, arbitrary and capricious”.  Again I was struck by the question, but not the answer to the question, of whether the phrase “unreasonable, arbitrary and capricious” is anything more than a pleader’s flourish or if it is masking a more precise idea which remains unarticulated.

If it is the latter, it must be articulated.  If it is a pleader’s flourish, so be it, but at some point it is a phrase of that kind that again would seem to me to carry special difficulty in connection with special cases because the prospect that looms is of a fight in the Full Court about the factual inference that should be drawn and that is an unproductive use of the Full Court’s time and unproductive of formulating precisely the point which is sought to be made.

MR MERKEL:   Your Honour, can I indicate this, that as at present advised we are not aware of any circumstances that would suggest a special case has any advantage over a case stated, so the inference problem that your Honour has adverted to may not arise, but can I just indicate that the unreasonable arbitrary formula, your Honour, was not intended as a pleader’s flourish, nor was it intended to really mask what might be a factual issue, but it does raise the construction of the provisions and ‑ ‑ ‑

HIS HONOUR:   Construction of which provisions?

MR MERKEL:   Of the relevant provisions ‑ ‑ ‑

HIS HONOUR:   No, which?

MR MERKEL:   ‑ ‑ ‑ providing for compensation in the legislation.

HIS HONOUR:   Exactly so, Mr Merkel. which, because the associated problem is this - and I should reveal it before you go forward.  Do I read the statement of claim correctly as not challenging the validity of sections 60 or 134 of the Emergency Response Act or the validity of item 18 of Schedule 4 of the FaCSIA Act?  Those are the provisions that, at the risk of considerable inaccuracy, might be understood as saying if there is an acquisition of property and if there are no just terms then the Commonwealth is liable to pay just terms.

MR MERKEL:   Yes.

HIS HONOUR:   There is no challenge to those provisions?  Is that right?

MR MERKEL:   I think I will have to be careful in my answer to that, your Honour.  I think that the intent of the challenge is that the terms provided are not just terms and therefore the acquisition cannot take effect, but we will turn our minds as to whether or not the invalidity has to extend to the terms provided for.  I think we have taken the view that it may be too narrow a view that if there is an acquisition and the terms are not just, therefore the acquisition is invalid, the terms do not have to go with it, but it may be that they are not severable.  That is the way we have approached it, but we will reconsider that.  But there is certainly no intent by not raising those sections directly in the challenge.  There is no intent in saying that they provide for just terms.  Can we go back to that, your Honour, because it may be that to avoid any doubt we need to include those provisions ‑ ‑ ‑

HIS HONOUR:   It did not strike me on such little time as I was able to devote to an understanding of the statement of claim and it is necessarily imperfect, it did not strike me immediately how the statement of claim grappled with the provisions that, as I say, seemed on a quick glance to be saying, “If there is an acquisition and if there are no just terms, the Commonwealth is bound, is liable”, it says, “to pay just terms”.

Now, that is a conundrum that of course will have to be explored at some later point in the debate, but again it goes to the way in which this case goes forward.  In particular, it goes immediately to which provisions are challenged and what are the facts, if any, that bear upon the challenge.  Now, I do not expect, of course, you to proffer answers to those issues now.  Those are matters to be debated at a later point in the development of the case, but it is right that I flag them early so that the parties can give close attention to them in deciding how we go forward with this litigation.

MR MERKEL:   We are indebted for your Honour’s assistance on those matters.  We will turn our minds to them.  But what I was wanting to indicate to your Honours, what we are seeking ‑ ‑ ‑

HIS HONOUR:   Judicial assistance is a wonderful euphemism sometimes, Mr Merkel.

MR MERKEL:   Well, we had read the provisions as working in a slightly more restricted way, but again they are not easy provisions to marry together, but we had understood the Commonwealth Parliament was in effect saying that we abrogate the just terms provision of the Self‑Government Act, we will not give you any compensation unless we are constitutionally required to give it because section 51(xxxi) requires it.  If section 51(xxxi) requires it we say what we have offered without reasonable compensation is just terms, but if the terms otherwise are not just we will give you reasonable financial compensation.

They are the stepping stones we had understood the legislation to take but it may be that that was too narrow a reading, but on the second or the earlier point your Honour had raised, one of the reasons we have raised the capricious arbitrary point is that given some of the provisions such as the Commonwealth requires that its improvements funded - and that would mean in practical terms since 1957 when Maningrida was first established - shall be taken into account when calculating the compensation.  We say it is a provision such as that in terms of evaluation that is so uncertain in its operation that it amounts almost to a subjective exercise of power because there are so many ways it may or may not be taken into account.

HIS HONOUR:   That exposes the point, does it not, Mr Merkel, but ultimately does it come to a proposition that the legislation is too uncertain to admit it in enforcement, because if that is the proposition that is a very large proposition.

MR MERKEL:   To admit of a criterion that could satisfy the Court that the terms are just.  It is not so much enforcement.  We have no doubt someone somewhere could come, and we say – if I can use the metaphor, look at a crystal ball and come up with a solution which may not be invalid, it may have been an exercise of power, but the width of the discretion given is so broad, with a provision such as all Commonwealth funded improvements at any time, any place, of any nature on the land are to be taken into account ‑ ‑ ‑

HIS HONOUR:   Well, is that not just a Hunter Valley issue, namely, as in the field of contract it has the meaning the courts ultimately give to it?

MR MERKEL:   That may be the answer, and if the courts give a meaning to it which is a question of interpretation, and that meaning falls under the umbrella of just terms, then no doubt the Commonwealth will win.  But if the meaning the court is given has such a wide ambit of discretion as such as how do you calculate the money, the depreciation, the value, if there are so many questions about it that raises a fundamental question as to whether just terms have been provided when the discretion is at large in such a way.  But that is just one aspect, but it is that kind of example, your Honour, that we give, but it comes down to a question of construction more than a question of fact.

HIS HONOUR:   The point that troubled me on reading the statement of claim can be identified in this way.  It seemed to me that the pleading got to the point of asserting that section 60 of the Act, or the other provisions of the Act, were engaged and stopped, but as I say, that is – reading the pleading probably too quickly, too late, and with insufficient attention and insufficient instruction from those who drafted it.  So there we are, Mr Merkel.  Well, now, you want, one, leave to amend your statement of claim by filing and serving an amended statement of claim you say tomorrow, do you?

MR MERKEL:   Yes, they are very minor matters, your Honour.

HIS HONOUR:   Yes.

MR MERKEL:   Although given what your Honour has said to us, if we could - your Honour has raised some other matters which require something more than tomorrow, so if we could do that within seven days, your Honour?

HIS HONOUR:   Yes, and then what, simply adjourn the matter over for further directions on 3 December at 9.30 in Melbourne or such other time as may be advised and reserve the costs?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Is there anything else that your side would say I should do, Mr Merkel?

MR MERKEL:   Only if your Honour could reserve liberty to apply in case some interlocutory question arises that need not be reserved.

HIS HONOUR:   Of course.  On what, 48 or 72 hours notice?

MR MERKEL:   Seventy two hours notice, your Honour.

HIS HONOUR:   Yes.  Now, Mr Burmester, what seems to be on the table is leave to file and serve an amended statement of claim on or before 4.30, 8 November, adjourn for further directions to 3 December at 9.30, and liberty to apply on 72 hours notice in writing to the opposite party, reserving costs.

MR BURMESTER:   Yes, your Honour, we are content to have the matter adjourned.  I think that is consistent with what we suggested in our written submissions.  However, I do not want to leave this Court without placing on the record that we do think there are considerable factual and legal complexities lurking in the statement of claim and we will try our best to make progress and agree the stated case, or special case, but we are concerned with some of the issues raised in the statement of claim.

HIS HONOUR:   Factually?  Factual matters or ‑ ‑ ‑

MR BURMESTER:   Possibly.

HIS HONOUR:   I understand the legal issues but ‑ ‑ ‑

MR BURMESTER: Your Honour, my friend would suggest it is simply a case about acquisition of property under the Constitution and what amounts to just terms, but in order to answer that one has to identify, in particular, the property interests that are in fact at stake. The claim, for instance, has allegations about native title interests. That raises a whole range of issues where there is no determination under the Native Title Act, where the Native Title Act contains its own procedures for making determinations of native title claims.

My friend says, “Well, it’s confined to individual native title rights.  Surely that shouldn’t be a problem.  I can establish sufficient facts”, but in order to deal with whether or not native title rights do or do not exist outside the framework of the Native Title Act may raise considerable difficulties.  The Commonwealth has not reached a position on this matter but it is something that is complex.

HIS HONOUR:   But does that suggest demurrer rather than stated case?

MR BURMESTER:   Your Honour, we have not reached a view on that.

HIS HONOUR:   I am not asking you to express a concluded view or even a tentative view.

MR BURMESTER:   I think that is why we want to sit down with our learned friend and see what progress we can make.  I mean, in relation to the Aboriginal Land Rights Act issues, itself, there the factual issues may not be so difficult, although identifying the nature of the individual rights that the first plaintiff might have, given that the title in the land rights area, the Maningrida area is vested in the Land Trust, and the relationship between any rights that an individual traditional owner may have as against the rights of the Land Trust raises a considerable degree of complexity, many legal questions as well as whether there are any rights at all enjoyed by an individual traditional owner.

In relation to the corporation the pleading refers to the corporation having a variety of rights or licences but concedes that they have not been granted consistently with section 19 of the Aboriginal Land Rights Act and that may raise the issue of whether in fact any such rights can therefore exist in the face of not having been granted consistently with section 19 of the Land Rights Act.  The power in section 68(2) which is challenged is only a power for the Minister to make certain orders in relation to property of bodies like the corporation, but it may be a power that has never been exercised and knowing the way in which it is actually exercised may well influence whether or not there is an acquisition of property.

It may be that it is done in way which imposes certain restraints on the property but does not amount to an acquisition.  One could, against that, contemplate a complete takeover of the property.  One might say that is an acquisition but without knowing in what way the power may or not be exercised it is very hard, in our view, to deal with an attack on the validity of the section as a whole.

So, your Honour, there are a whole range of underlying complicated legal issues.  If we can agree a stated case I do not want your Honour not to realise that there are some significant legal propositions that need to be dealt with before you get to the constitutional issue of acquisition.  Those legal issues go to the nature of the property interests that do or do not arise in land held under the Land Rights Act and, in particular, the interests held by an individual plaintiff such as the first plaintiff here.

We will endeavour to work with our learned friend to reach an agreement - but we do not want it – if we come back in a month, in early December, to say we have not reached – we are not making progress I do not want your Honour to think that it is all the fault of the defendant being difficult.  There are, we say, considerable difficulties here.

HIS HONOUR:   One consequence I think the parties may need to bear firmly in mind is that I think that, or at least the parties should operate on the understanding that, 3 December will be the time for deciding whether it goes in in second week March.  If we are to propose a list of cases for March, I think that if the parties act upon the assumption that their last chance to get into that list will be 3 December, then the parties will not be misled.  Let us see where we have got to by 3 December but come expecting that if you are not then agreed upon how to go forward, the notion of a March fixture may go out the door.

MR BURMESTER:   I understand that.

HIS HONOUR:   Mr Merkel, is there anything that you need to deal with in answer?  I would have thought not.

MR MERKEL:   No, your Honour.

HIS HONOUR:   There will be orders in the following terms:

1.        The plaintiffs have leave to file and serve an amended statement of claim on or before 4.30 pm, 8 November 2007.

2.        I will adjourn the application for further directions to 3 December 2007 at 9.30 am in Melbourne or such other time as the parties may be advised.

3.        Either side has liberty to apply on not less than 72 hours notice in writing to the opposite parties.

4.        Costs are reserved.

AT 9.57 AM THE MATTER WAS ADJOURNED