Wurridjal & Ors v The Commonwealth of Australia

[2008] HCATrans 139

[2008] HCATrans 139

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

JOY GARLBIN

Second Plaintiff

BAWINANGA ABORIGINAL CORPORATION

Third Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

ARNHEM LAND ABORIGINAL LAND TRUST

Second Defendant

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON TUESDAY, 11 MARCH 2008, AT 9.28 AM

Copyright in the High Court of Australia

__________________

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

MR S.A. GLACKEN:   If your Honour pleases, I appear for the second defendant.  (instructed by Northern Land Council)

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

HIS HONOUR:   Mr Merkel, your summons, I think, is that right?

MR MERKEL:   Yes, your Honour.  Your Honour, for some reason we thought your Honour was in Canberra this morning and we had sent some proposed draft orders by consent to Canberra, but obviously your Honour has not seen them.

HIS HONOUR:   I have not seen them.

MR MERKEL:   Could I hand up a copy of the orders I have got, your Honour?

HIS HONOUR:   Yes.

MR MERKEL:   In summary, your Honour, the Commonwealth and the plaintiffs have agreed on a form of statement of claim to which the Commonwealth can demur, and it is the statement of claim which was annexed to the summons, and the orders are now sought which limit the proceeding to the matters the subject of the present proposed statement of claim.  The Commonwealth proposes to demur and the parties have agreed on a timetable that would enable the matter to proceed before a Full Court, if your Honour was prepared to refer the demurrer to a Full Court.

HIS HONOUR:   Given the number of slips there have been twixt cup and lip in this case I will make no order referring anything to a Full Court until the demurrer is filed, until I see what the state of play is.  A question arises which will ultimately be for the Court, if it is to be referred to a Full Court, about when this matter can be brought before a Full Court because, of course, with the imminence of the retirement of the Chief Justice it will, I suspect, be difficult, if not impossible, to bring it before a Bench of seven before September.

MR MERKEL:   Can I just indicate to your Honour two matters.  First, your Honour, that we understand the Commonwealth does not have any present proposal to exercise powers in respect of the Maningrida land, so the urgency that was feared when the matter first came on does not exist in the same way at the present time.  Secondly, your Honour, at the moment we have – and this is only possibility I can see of any change – at the moment the permit system is still part of the proceeding.

We understand that when the control of the Senate may change as from 1 July, legislation is proposed, which is currently before the Senate but we understand has not been passed, to revoke the abolition of the permit system which would mean that aspect of the case would not proceed, but we do not see any logistical difficulty about that, but that is a reason why, your Honour, if the Court saw it as appropriate, if the hearing were after 1 July or in September, as your Honour had indicated.  There may be a certain rationale to that in terms of the permit system outcome then being able to be known.  They are the only matters I would wish to put before your Honour.

HIS HONOUR:   Do I understand the position of the plaintiffs to be a position that you do not ask, at least immediately, for any special or unusual expedition of the matter?

MR MERKEL:   That is correct, your Honour.  We understand that that is based upon the Commonwealth’s current position of not having any proposal in respect of Maningrida that would interfere in any serious way with the status quo, but we will have to deal with that if and when it arises, but the fear that originally existed has changed, your Honour.

HIS HONOUR:   The leave you want to amend is to amend the form annexed to your summons of 7 March, is that right?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:   Yes.  Yes, thank you, Mr Merkel.  Mr Burmester, if I give the plaintiffs leave to file and serve an amended statement of claim in the form annexed to the plaintiff’s summons of 7 March 2008 and if I

extend the time for the Commonwealth to demur, if so advised, to that amended statement of claim to 4.00 pm, 19 March 2008, do you wish to be heard in opposition to that?

MR BURMESTER:   No, your Honour, we are happy with those orders.  We consider the pleading is in a form appropriate for a demurrer and we would propose to demur.  I could demur the time suggested.

HIS HONOUR:   Yes.  I would not be minded to make any further directions about the further conduct of the matter, Mr Burmester.  We will come to how we deal with that presently. 

Mr Glacken, are you in a position where you are able to say what attitude the second defendant will take?  You will notice the way in which I phrase that.  Whether you are now in a position to say what ‑ ‑ ‑

MR GLACKEN:   We are in a better position than on the last occasion, but we are not in a final position.

HIS HONOUR:   Yes.

MR GLACKEN:   Your Honour might have noticed that the timetabling of submissions in that respect treated us as an intervener because there are some points where we think we have to see how they are put on the submissions rather than how they presently appear on the pleading.

HIS HONOUR:   You are a party to the proceeding.  What direction do you seek to have me make in response to the amended statement of claim?  You will need at least fixing of a time to answer that pleading whether it is by defence or demurrer or a combination.

MR GLACKEN:   We had accepted the course taken by the plaintiffs and the Commonwealth for the Commonwealth to proceed by demurrer.  We do not anticipate, as the second defendant, having to plead if we took that course, so I think for the present purposes the directions that your Honour has indicated essentially in paragraphs 1 and 2 of the minutes but as revised are appropriate.

HIS HONOUR:   I think there may be an awkwardness, may there not, if the demurrer goes forward with your party having neither pleaded nor demurred, or is there no awkwardness resulting from that?

MR GLACKEN:   We do not see any awkwardness, your Honour.  We have considered that novelty, if you like, that we are a named defendant not demurring, but, as we said on the last occasion, or two occasions ago, we do essentially see ourselves as essentially an intervener.

HIS HONOUR:   You should not be under any misapprehension, Mr Glacken.  I do not see you as an intervener at all.  You are there as a party.

MR GLACKEN:   I understand that.

HIS HONOUR:   That may be an error on my part or not, but I think that I need to determine the time by which you file something in answer to the pleading which the plaintiff puts on.  What time do you seek to have me fix?

MR GLACKEN:   If your Honour were to direct, for example, paragraph 3 of the minutes for the Commonwealth to plead a defence, then we would suggest seven days after the Commonwealth.

HIS HONOUR:   If then I were to give the plaintiff leave to file and serve their amended statement of claim in the form annexed to the plaintiff’s summons of 7 March 2008 and affix the time for filing and service of that document as, say, 4.00 pm on 13 March, the document is prepared, I see no difficulty about doing that, then extend the time for the Commonwealth to demur, if it is so advised, to that amended statement of claim to 4.00 pm on 19 March and extend the time for the first defendant to file and serve its defence, if any, to the amended statement of claim to 11 April 2008, which is give or take 21 days with the intervention of Easter, and extend time for the second defendant to file and serve its defence, if any, to the amended statement of claim to 18 April 2008, do you wish to be heard against that, Mr Glacken?

MR GLACKEN:   No, your Honour, that is appropriate.

HIS HONOUR:   It would be necessary then, I think, to adjourn the matter for further directions to a date to be fixed.  It would be necessary to deal with the costs perhaps by reserving them and to reserve liberty to apply. The further conduct of this matter.  Once the pleadings are finalised, that is, by about mid to late April, the question will emerge, how are we to take this matter further? 

If the plaintiff wishes to prosecute its proceeding in its current form, then I think it will be for the plaintiffs to propound directions that would see the matter brought on if that is the plaintiffs see a need to have directions differing in any respect from those that would ordinarily be engaged by the simple fixing of the hearing date.  If we were to fix a hearing date before all available Justices, probably in September, and if the parties are content that the party go forward on ordinary timetables, so be it, but, I think, there

would be advantage if the parties were to come back for some directions probably before the winter recess. 

Mr Merkel, as at present advised, how long do you think argument of a demurrer to the amended statement of claim would likely take?

MR MERKEL:   We have had discussions with my learned friend, Mr Burmester, and I think the estimate would be two days, your Honour.

HIS HONOUR:   Yes.  Would there be any request for extension of the page limits?

MR MERKEL:   We were going to endeavour to confine ourselves, given the narrowing down of the nature of the property involved, your Honour, to the pages.

HIS HONOUR:   Ordinary limits.

MR MERKEL:   Yes. 

HIS HONOUR:   Yes.  It may be that we can get by without a further directions hearing.  I think much turns, Mr Merkel, on what the plaintiffs want to do about the possibility of legislative amendment.  I understand you flag this as a possibility.  That is not something we can anticipate one way or the other, but it would be undesirable that we go forward with the full argument on something which falls away.

MR MERKEL:   We are conscious of that, your Honour.  At the moment, the only foreshadowed amendment would be the amendment to the permit system, which is a discrete part of the claim, but of course if that ‑ ‑ ‑

HIS HONOUR:   It would simply drop off.

MR MERKEL:   It would just drop off, your Honour.

HIS HONOUR:   Yes.  What I am minded to do is make directions of the kind I have suggested, including adjourning the matter for further directions to a date to be fixed.  It will be for the parties to determine whether a further directions hearing is necessary or desirable.  If the parties do not seek departure from ordinary timetables and ordinary page limits, it may be that we can get by without one.  It will be important, however, that submissions are filed in ample time.  Most especially will it be important if there is likely to be any intervention by any of the other polities. 

Mr Merkel, you will have to give fresh 78Bs, I would have thought, just to be sure.  Whether other polities wish to intervene will, of course, be

matters for them, but the last thing I want to have happen is this come before a Full Court with a blizzard of submissions at the last minute.  It just will not be accepted.

MR MERKEL:   We are conscious of that, your Honour.  The only foreshadowed intervention we understood was likely to occur was the Northern Territory, but we will issue 78Bs and of course there may be parties in the Northern Territory that would wish to intervene.  We do not know what their position will be. 

HIS HONOUR:   Yes.  Now, Mr Burmester, do you want to be heard against my giving directions in those terms?

MR BURMESTER:   No, your Honour.  I think they are satisfactory at this stage.  We certainly would wish the matter to be heard before a Bench of seven given the nature of the issues that it raises.  I think there probably will be a need for a further directions hearing.  The standard procedures do not give the defendant many days between receipt of the plaintiffs’ submissions and when its submissions are due and so I think the parties can work together and work out a suitable timetable once we have got the pleadings and we see what is there.  We think the pleadings will demonstrate that for the purposes of the demurrer there is sufficient standing.  That would be abundantly clear and so on.  But I have no problem with the directions you are proposing, your Honour.

HIS HONOUR:   Then the parties will need at least at some point to submit a consent order to me making the reference into a Full Court because the directions I will give today will not include reference into a Full Court.  It may be that if the parties can between them work out a sufficient timetable that will accommodate the steps necessary to get submissions in on time, so be it.  That will be the point at which to do it.  For the moment, the orders I will make will be: 

1.Leave to the plaintiffs to file and serve on or before 4.00 pm, 13 March 2008, an amended statement of claim in the form annexed to the plaintiff’s summons of 7 March 2008.

2.Extend the time for the Commonwealth to demur to that pleading, if it is so advised, to 4.00 pm, 19 March 2008.

3.Extend the time for the first defendant to file and serve its defence, if any, to the amended statement of claim to 4.00 pm, 11 April 2008.

4.Extend the time for the second defendant to file and serve its defence, if any, to the amended statement of claim to 4.00 pm, 18 April 2008.

5.Adjourn the matter for further directions to a date to be fixed.

6.Reserve costs.

7.Liberty to apply to any party on not less than 48 hours notice in writing to opposite parties. 

It would be as well if the parties kept in close contact with the Registry.  It would be as well if the parties gave consideration soon after 18 April 2008 to the formulation of directions that would see the matter going forward before a Full Court in suitable order and if soon after 18 April 2008 the parties gave consideration to submitting a draft order incorporating such directions together with a direction referring the demurrer for argument before a Full Court.  Mr Glacken.

MR GLACKEN:   A formal matter for Mr Burmester’s benefit, perhaps it might be appropriate to dispense the requirements for Mr Burmester to file a summons for directions on filing a demurrer, in other words dispense with requirements of rule 27.07.6(b).

HIS HONOUR:   Not yet, Mr Glacken.  Whether the summons has to be filed and come on is perhaps something that will await events after 18 April.  Do the parties want me to deal with any other aspect of the matter now?

MR MERKEL:   No, your Honour.

HIS HONOUR:   Very well.  Adjourn the Court.

AT 9.39 AM THE MATTER WAS CONCLUDED