Wurridjal & Ors v The Commonwealth of Australia

[2008] HCATrans 92

[2008] HCATrans 092

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

Directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON MONDAY, 11 FEBRUARY 2008, AT 9.14 AM

Copyright in the High Court of Australia

__________________

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

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

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

HIS HONOUR:   Mr Burmester, your summons is, I think, the first, is it not?

MR BURMESTER:  It is, your Honour.  Mindful of your admonition of the last directions hearing that we should not let any problems fester away until the hearing, we felt obliged in the light of the Northern Land Council letter and upon further reflection to bring this matter back before the Court.  The purpose of our summons is essentially to vacate the existing orders and to give the parties further time to consider the most appropriate way forward. 

The plaintiffs have, since we filed our summons, issued a further version of a second further amended statement of claim.  I think it is fair to say that that has not changed matters.  I have already got five pages of comments from my legal team on those proposed changes.  That is not the same version of the second further amended statement of claim to which we said in our letter that we could agree to it being filed.  The plaintiffs have reflected further and made further substantial changes.  So, on that basis it does seem to us that there is very little option other than to give the parties further time to consider the matter. 

Your Honour, I could elaborate in some detail on the reasons for our summons, the matters of particular concern, but that may not be necessary or appropriate.  I appreciate the effort the plaintiffs have made to try and address the concerns that the Commonwealth and the Northern Land Council have had.  However, it does seem to the Commonwealth it is not appropriate to try and rush this matter.  The matters raised do seem to call into question whether the pleadings are in a fit state to demur and certainly the Commonwealth’s present instructions are that they we are not prepared to demur to the proposed second further amended statement of claim and that it ought not to proceed on the timetable originally agreed.

HIS HONOUR:   Yes, thank you, Mr Burmester.  Yes, Mr Merkel.

MR MERKEL:   Your Honour, we have been placed in the invidious position of having had an agreed statement of claim which the Commonwealth had regarded as suitable for a demurrer and then the Northern Land Council, whose position we have been trying to ascertain since the commencement of the proceeding coming in as they did late with that nine‑page letter ‑ ‑ ‑

HIS HONOUR:   I think it was your application that joined Northern Land Council, was it not?

MR MERKEL:   It was, your Honour, although they had been aware of this proceeding and the demurrer and every aspect to it and they were aware that we were inviting them to decide whether they wished to be a plaintiff or defendant but we had not had any communication from them of any substance until that letter but, your Honour, that is water under the bridge.  There is a fundamental difference between the parties, your Honour, which is one which we say go to the merits; that the Northern Land Council’s letter was addressed in some detail by us insofar as it related to pleading issues.  Whilst we do not concede that those amendments were necessary, rather than have a fight or a contest over wording or procedural matters we took the view, your Honour, that it was best to try and accommodate them. 

There is one central issue which has always been at the forefront of this proceeding and about which it seems the Northern Land Council and the Commonwealth and ourselves are at odds and that is, it is suggested that until a decision is made by the Minister to do something, there is no acquisition of property and therefore the matter before this Court is no more than an advisory opinion or something that is premature.  Our whole case, your Honour, is premised upon the five‑year lease commencing on 17 February.  That itself affects the acquisition ‑ ‑ ‑

HIS HONOUR:   Of what?

MR MERKEL:   Of the property of the Arnhem Land Trust of the ‑ ‑ ‑

HIS HONOUR:   What property?

MR MERKEL:   It is fee simple, your Honour.  It diminishes the bundle of rights that the fee simple holder has down to an imposed five‑year lease with terms, your Honour, which virtually gives the Commonwealth the position of being landlord and tenant and to that extent to substantially diminish the Land Trust’s rights.  There are certain preserved rights, but those rights are all preserved at will.  So the combined effect, your Honour, of the property that ‑ ‑ ‑

HIS HONOUR:   The central point I take from the letter of Northern Land Council, which is exhibit A to the affidavit of Mr Kirk, found at page 9, where in two paragraphs immediately after numbered paragraph 48 it is said that on the Northern Land Council’s:

reading of the statement of claim and the legislation, it appears that the only acquisition that will occur by force of the legislation concerns the grant to the Commonwealth, by force of s 31(1)(a) of the ER Act, of the lease of the Maningrida land by the Land Trust –

“Other interests” being, as I read the letter, the interests for which your clients contend are preserved by the operation of the Act and are not alleged in the statement of claim to be diminished. 

MR MERKEL:   That is what they say, but we say that is not correct, your Honour.  That is the substantive issue.

HIS HONOUR:   What I take from that is that you cannot identify in the statement of claim what it is that is said to be the property of your clients that is the subject of acquisition. 

MR MERKEL:   Your Honour, we say that is not correct.  Your Honour, there is four categories of property which we say are acquired by the five‑year lease and the statutory provisions that make all preserved interests terminable at will.  The first is, your Honour, we say the property of the Arnhem Land Trust is acquired ‑ ‑ ‑

HIS HONOUR:   Now, you do not appear for Arnhem Land Trust?

MR MERKEL:   We do not appear for ‑ ‑ ‑

HIS HONOUR:   They are a defendant to the suit?

MR MERKEL:   They are a defendant to the suit.

HIS HONOUR:   And they are not claims that are made in this statement of claim by your clients, are they; that Arnhem Land Trust’s property, for whom you do not appear and whom you name as a defendant, has had its property acquired?

MR MERKEL:   Yes.  We say that our statement of claim puts in issue the Arnhem Land Trust property and we say we had standing to do it as a party affected by the acquisition because we are the traditional owners and we say a statutory trust is created in favour of the traditional owners who will be directly affected by the acquisition.  So the first set of property and the most fundamental set of property that we claim is the subject of our proceeding is the property of the Arnhem Land Trust.  That is first and foremost of our claims in this proceeding. 

That is why we invited them to join as a plaintiff but they do not seem to wish to do so, so they are now a defendant and we do not know what their position is in relation to that claim.  But as traditional owners who have received the benefits under the Act, as the equivalent beneficiaries we say we are entitled as persons directly affected by the acquisition to claim that it is invalid.  Paragraph 21 of our statement of claim ‑ ‑ ‑

HIS HONOUR:   Which statement of claim?  The current, the proposed, the further proposed, which version?

MR MERKEL:   The current version, your Honour.

HIS HONOUR:   The current version is that one that takes account of Arnhem Land Trust being a party?  Because if it does not, what is the utility in referring to it?

MR MERKEL:   Your Honour, I think it is in the proposed statement of claim.  That does not change, your Honour.  I will just find the number.

HIS HONOUR:   What I have before me is exhibit A to the affidavit in support of your summons which is the last version of the statement of claim as proposed by your side.

MR MERKEL:   Paragraph 21 sets out the four categories of property.  It has always been central to our case and, indeed, it is the cornerstone of the whole case, your Honour, that it is the Land Trust property that is being acquired by the grant of the lease with rights terminable at will.  There is plenty of authority, your Honour, in this Court that would say the property interest terminable will lose their character or permanence as property and we say that that is an acquisition and it is a clear acquisition and it occurs on 17 February. 

We cannot understand why the Northern Land Council is taking the position that its rights are simply unaffected.  We say they are, but that is a matter for it.  We, our clients as traditional owners, your Honour, do not wish to see their rights acquired, their beneficial rights and the interests that they have as the persons for whose benefit the Land Trust is meant to be administering the property in question, which is the Maningrida land.  That is the first set of property.

The second set of property, your Honour, are the two traditional owners’ individual property rights and there is an argument about whether under the Act they have individual or collective property rights as traditional owners.  Their individual property rights are the rights that have the Act administered for their benefit and the benefit of other traditional owners.  They also have native title rights.

HIS HONOUR:   There are two sets of rights of which you speak.  There are native title rights and there are other rights, is that right?

MR MERKEL:   Yes, there are traditional owners’ rights.

HIS HONOUR: It is said that section 34 of the Emergency Response Act preserves “any existing right, title or other interest”.

MR MERKEL:   It preserves a right, title or other interest and that calls into question, your Honour, whether section 71 of the Land Rights Act, which the Land Council wishes to rely upon, in fact is a right, title or interest.  Section 71, your Honour, of the Land Rights Act says that “an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use” land and can do so in accordance with tradition.  If that is a right title and interest – and that is a big “if”, your Honour – then it is preserved, but it is terminable at will. 

We say that a right that was not terminable at will but becomes terminable at will, which is the effect of the entirety of this Response Act, any land caught within this Act, your Honour, any interest caught with this Act can be terminable at will of the Minister.

HIS HONOUR:   Why is that?  What is the statutory basis for that proposition?

MR MERKEL:   There are a number of sections, your Honour, but 37(1).  Your Honour, the essential foundation of our claim from the outset, which is unchanged by the addition of the Northern Land Council, is both that the Land Trust fee simple rights as owner are diminished by the five‑year lease and to the extent there are any preservation of rights, they are terminable at will.  Also, the wide powers to both change the terms of the lease and take away further rights of the owner at will of the Commonwealth are a further diminution of its rights which result in an acquisition by the grant of the lease and on the terms and conditions set out in this Act.

The individual property rights of the two traditional owners, both as statutory beneficiaries, for want of a better term, and their native title rights – and this Act has a scheme, your Honour, in respect of native title which is fairly described as ensuring that they are suspended during the whole of the five‑year lease regime.  The effect of that, your Honour, is they are not a preserved right and they are subject to the Commonwealth’s exclusive possession, which means they cannot be exercised during the term of the lease and, understandably, your Honour, what the Commonwealth want is unfettered power during the five‑year lease to act as effective owner of the property and will not have that impeded in any way by section 71 rights which are terminable at will or native title rights which are suspended for the duration of the five‑year lease.

HIS HONOUR:   What is it you say suspends them for the duration?

MR MERKEL:   It is a combination of sections, your Honour.  The first is in 34(2) which says that the preservation “does not apply to any native title rights” ‑ ‑ ‑

HIS HONOUR:   Yes, it takes you over to section 51.

MR MERKEL:   Section 51, your Honour, provides that the future Act provisions do not apply.  There is one other point, your Honour, which is that the Commonwealth lease in section 31 gives exclusive possession.  So that the combination of those three provisions by what you might describe as a circuitous route, effectively means no native title rights can be exercised for the five‑year period and the non‑extinguishment principle applies so that those rights can rebound at the end of the lease.  A suspension of rights, your Honour, has been accepted by this Court to be an acquisition of property. 

Now, that relates to their two individual sets of rights, but then, your Honour, the Northern Land Council take the point that the individuals do not have rights under the Land Rights Act and that the rights, such as they may exist, are collective rights, therefore, the rights of the two traditional owners need to be brought in the sense of protecting collective rights which they seek as the third category of property which is sought to be protected under this statement of claim and always under this statement of claim being the collective rights of all the traditional owners.  They say that they have standing and an interest to sue for the protection of those collective rights. 

Your Honour, they are the central elements. Bawinanga’s position falls under two headings. The Northern Land Council, your Honour, has chosen to conduct its business in ways that mean it enters into agreements with companies such as Bawinanga without complying with section 19 of the Land Rights Act and Bawinanga presently conducts something like an enterprise with a turnover of $27 million on land which it has not until in January had any formal section 19 lease for, all with the consent and agreement of the Northern Land Council. They pay rent and the rent is distributed by the Northern Land Council to the traditional owners in accordance with the Act.

The Northern Land Council set out a lease for part of the property some seven years ago and there was a dispute about the terms of that lease. The upshot of that, your Honour, is that the parties finally entered into a lease in January for part of the property but the consequence for Bawinanga, your Honour, is that if this legislation is valid, its position as far as the Land Trust is concerned is that it would be dispossessed by the grant of the lease in respect of all of the property it conducts it enterprises on that is not the subject of a section 19 lease and will have an interest in respect of the preserved property, in other words, preserved estate or interest terminable at will.

So its interest, your Honour, is that its existence depends upon the validity of the grant to the Commonwealth of this five‑year lease.  Now, we say in that context, with this set of statutory provisions, which properly understood give the Commonwealth all the powers of a fee simple holder for the duration of that lease, is an acquisition of the Land Trust property.  We say there is nothing advisory about it.  There is nothing premature about it and the argument being put forward by the Land Council and seeming to find favour with the Commonwealth is disingenuous. 

But, your Honour, if it were to work, it would mean that every time the Commonwealth make some decision in respect of this property, that is the first acquisition. So the courts paying compensation, reasonable compensation, could never look at this in terms of one case but you would have a myriad of cases. Every decision for the Commonwealth under this legislation is a new acquisition. We say, your Honour, there is simply no proper juristic foundation for approaching section 51(xxxi) in the way that is being put forward.

We have not seen any argument at all presented to us that would suggest that interests that were not terminable at will that are suddenly terminable at will is not an acquisition of property.  It defies the High Court authority in Meneling.  It defies the High Court authority in Dalziel.  We have not seen any argument that the grant of a mandatory statutory lease for five years with these sorts of powers against the will or without the consent of a fee simple holder is anything other than an acquisition of the bundle of rights, part of the bundle not the entirety of the bundle of rights, of that fee simple holder.  Yet, your Honour, both the Commonwealth and the Northern Land Council have come to this Court and says this is all an advisory opinion and premature. 

The consequence of the course they would wish to take, if that be correct, your Honour, is one we are faced with as inevitable.  But we say if it is not correct, the consequence of the course they are taking is to defer the hearing of this matter off indefinitely so that the five‑year lease will take effect and the Commonwealth and the Northern Land Council will no doubt decide upon their own preferred way to move ahead, but that would be a preferred way without consultation with or without regard to the rights of the traditional owners which are sought to be vindicated in these proceedings.

HIS HONOUR:   The two named plaintiffs sue on their own behalf.  Do they sue in any representative capacity?

MR MERKEL:   Your Honour, because of the Northern Land Council’s suggestion that the individual owners do not have any property interests of their own and may not have standing in respect of collective rights, in the proposed amendment we have raised the question of suing on behalf of the collective rights.  We only do so, your Honour ‑ ‑ ‑

HIS HONOUR:   Where do I see that in the second further amended statement of claim which is exhibit A?

MR MERKEL:  It is in paragraph 2A at page 9, your Honour.  That is one of the amendments but can I make it clear that that amendment, your Honour, is one that we say is not necessary.  It was designed to try and overcome any objections the Commonwealth and the Northern Land Council might have.  We say Wurridjal and Garlbin, as members of the traditional owners and of the class, have the standing to sue for relief that the legislation is invalid and do not need to do so as representatives of all of the traditional owners, but in an endeavour to try and get the Northern Land Council and the Commonwealth to agree to let this matter proceed on a demurrer, we have indicated in our letter to them on Friday that we do not wish this question of collective rights to somehow fall between two cracks and not get before the Court on the basis that the traditional owners are a necessary party. 

So as a matter of precaution, your Honour, we have indicated that even though we do not seek relief for the traditional owners, we merely seek relief as to a declaration of invalidity of the legislation insofar as it applies to the Maningrida land, we say, your Honour, that we do not want the Court to somehow not have the opportunity to look at the collective position merely because there was no representative claim made.  That is why, in effect, your Honour, we have tried to do everything we possibly can to keep this proceeding on track and to try and ensure that a demurrer can be heard.

HIS HONOUR:   The position seems to be that the Commonwealth will not demur to the statement of claim that you have proposed.  Is that how you understand it?

MR MERKEL:   That is correct, your Honour, but there are two ‑ ‑ ‑

HIS HONOUR:   What then am I to do?  The Commonwealth will not demur.  What am I then to do?

MR MERKEL:   We are conscious of that, as is the Commonwealth.  There are two qualifications to the Commonwealth’s position, your Honour.  Mr Burmester has asked for some time – we would say a short time would be relevant – a short time for us to try and discuss this.

HIS HONOUR:   Mr Merkel, let there be no misunderstanding.  We are there weeks away from the day fixed for hearing, is that right?

MR MERKEL:   That is correct, your Honour.

HIS HONOUR:   Three days of the Court’s time have been assigned for the hearing of this case, is that right?

MR MERKEL:   Yes, your Honour.

HIS HONOUR:  

Today is the last day.  If we are to bring up any other litigation to fill a hole in the Court’s list, today is the last day we could do so.  I had understood or had attempted at least to make as clear as I could from the first day this proceeding came on before me that there will come a time when we cannot wait any longer.  We are three weeks out from the hearing.  The Commonwealth says it will not demur.  What do you say I should do?

MR MERKEL:   Your Honour, we were anxious to retain the date and we were ‑ ‑ ‑

HIS HONOUR:   Mr Merkel, I asked you a direct question.  What do you say I should do?

MR MERKEL:   Your Honour, I think that the reality in fairness to the Court and the indulgence it has given is we do not have an alternative to vacating the date given the position the parties have taken and the fact that in good faith we allowed our previous orders to be vacated and put ourselves, in effect, in the position of relying on the Commonwealth to demur to what was the previous amended statement of claim which predated the Land Council’s letter.  We had hoped to go back to our earlier statement of claim because the one that the Commonwealth had demurred to was sufficient for our interests to show both our interest in the matter and the standing that we have and the challenges that we were making to the property concerned and the relief we were seeking. 

We say that earlier statement of claim is still one that could go before the Full Court but we accept, your Honour, that, given the objections, we have some difficulties now that we have agreed to orders that, in effect, allow the Commonwealth to demur and if it refuses to demur, we can do anything about it, but it has said this, your Honour.  It has undertaken to demur to the statement of claim if the objections that it has taken – and they relate primarily to the question of whether the proceeding is premature and whether the Court is being asked for an advisory opinion – were misfounded and, ultimately, your Honour is in the position of having to determine, if there is a demurrer, whether it is suitable to go before a Full Court. 

If we are wrong in our contention that there is an acquisition and they are right in their contention that nothing occurs by way of an acquisition until a Ministerial decision is made and each Ministerial decision throughout the Northern Territory is yet another acquisition but starting with the first decision, then, your Honour, there is no acquisition.  But they are putting that before the Court as a ground for not having the demurrer go forward, but they accept, your Honour, that if the Court were of the view that that were a matter on the merits, then it can go forward and they have undertaken to allow it to go forward. 

We say that all of the substantive objections are entirely matters that go to the merits of the case, even the section 71 point.  It is very well of the Commonwealth and the Land Council to say they think section 71 preserves everyone’s rights and the fact that those rights are terminable at will is neither here nor there.  It is all very well for the Commonwealth to say let our acquisition under the five‑year lease take effect and we will just see what happens.  Meanwhile, the lease runs on and we have no guarantee or undertaking not to exercise powers under the Act that would affect our rights.  So, your Honour, we would say that this matter ought to be able to come on by way of a demurrer but, given the problems the parties have created, we understand the problems that have arisen for this matter having come on in this way before you today. 

We would accept, your Honour, that given the contests that have taken place, there are difficulties with the matter coming on given the position that has been taken now by the Northern Land Council and adopted by the Commonwealth but we do say that this matter should still be able to come on as a demurrer and that the arguments that have been put forward are misconceived.  Our bottom line, your Honour, is that we had a demurrable statement of claim.  The Commonwealth had demurred to it and we say that nothing put forward by the Northern Land Council or the Commonwealth alters that position.  We would be prepared to go forward on our original statement of claim, your Honour, because we say that the

rights we have put forward are able to be vindicated in that statement of claim.

HIS HONOUR:   It was your application to join Northern Land Council, was it?

MR MERKEL:   Yes, it was, your Honour.

HIS HONOUR:   They have been joined at your instance as a necessary and proper party, is that right?

MR MERKEL:   Yes, your Honour.  Your Honour, we say as a proper party.  We do not say as a necessary party.  We say it was sufficient that they had notice.  We do not wish to proceed with injunctive claims.  If they wish to stand on the sidelines and take no part, that is a matter for them, but we say they were not a necessary party because no relief is being sought against them.  They were aware of the proceeding.  They were entitled to participate.  They were invited to participate.  As far as the relief is concerned, all that is sought is declaratory relief and they are not, we would say, a necessary party if we have the standing which we say we have to seek the relief that we do. 

We brought them in as a proper party not anticipating, your Honour, that it would have anything like this consequence that has emerged.  It is somewhat disappointing for us that they seem to take the view earlier in the letter that they do not seem to have any duty to act for the benefit of the traditional owners.

HIS HONOUR:   Those matters as between your client and the defendant, they do not seem immediately to bear upon the issue I have to decide.  Yes.  Is there anything else, Mr Merkel?

MR MERKEL:   They are the submissions that we make, your Honour.

HIS HONOUR:   Yes, Mr Gageler.  What do you say I should do?

MR GAGELER:   To cut to the chase, your Honour, your Honour ought make the orders sought on the Commonwealth summons ‑ ‑ ‑

HIS HONOUR:   That is, vacate the hearing date?

MR GAGELER:   Exactly, yes.  As to the plaintiffs’ summons, we see no reason why your Honour ought not make those orders as well.  There is much to which I could respond and I am happy enough to do that if it would be of assistance to your Honour, but I doubt that it will assist your Honour in making the appropriate orders.  The appropriate orders on the Commonwealth summons appear to us to flow directly from the Commonwealth’s attitude they will not demur. 

So far as my own client’s position is concerned, I can say this, and your Honour can stop me if it is not helpful, that my client does not wish to spoil anything.  It has been forced to be here because it was asserted against us and we accepted that it is the correct position that, given the orders that are sought, declaration of the invalidity of a right of property which by force of the statute is to be granted by us, a necessary party.  Being here we feel a responsibility to the Court but also to the persons affected directly and indirectly by this litigation to make sure it is in a proper form.

HIS HONOUR:   The reference to form may mislead.  I understand that the questions of form and procedure that are being debated behind the scenes are questions that go to the root of the proceeding.  I would understand that the fundamental question which arises at this stage of this proceeding is whether a pleading has been filed which, to use Chief Justice Dixon’s words in South Australia v The Commonwealth, alleges with distinctness and clearness the constituent facts of the cause of action in such a fashion as would enable the Court to determine the constitutional issue which it is said arises in these proceedings.

MR GAGELER:   Your Honour, the answer to that question is, in our submission, unequivocally no.  In respect of the earlier form of the pleading, we have set out our views comprehensively in the letter that your Honour has seen.  In respect of the proposed further amended statement of claim, can I give your Honour a couple of examples.  If your Honour has the document to hand, can I just take your Honour to the brand new pleading that one sees at page 3.  This is paragraph 2(ca) and it is a new pleading of the existing property which is said has been acquired or will be acquired.  Your Honour has located 2(ca)?

HIS HONOUR:   Yes.

MR GAGELER:   It says that each of the plaintiffs is:

a tenant of the Maningrida Council in relation to the houses on Lots 349 and 358, respectively, on the Maningrida land, pursuant to leases granting them a right, title or interest entitling them to occupation of the houses –

The Maningrida Council is not otherwise referred to in the pleading.  It is a body established under the Associations Act (NT) which has certain Local Government functions under Northern Territory legislation. If it is meant to be implied by that paragraph that the Council has some property interest and that the plaintiffs have some derivative interest from the Maningrida Council, it is certainly not spelt out in that paragraph and that is all one sees

about this pleading of property.  As a matter of fact it would be disputed by my client. 

One then can go to page 7 and tucked away as particulars (aa) to paragraph 2(g)(ii), one sees a substantive pleading.  The substantive pleading is to the effect that in breach of the Act which governs its conduct, the Land Trust, through its agent the Northern Land Council, has entered into certain agreements.  Now, the material effect or the underlying facts are not pleaded out and, again, those assertions of the existence of an agreement followed in (ii) by the agreement to pay and the actual payment of rent, are facts that are simply disputed by ‑ ‑ ‑

HIS HONOUR:   This is page 7, is it?

MR GAGELER:   That is right.

HIS HONOUR:   The version I am looking at may not be the same version as you, I suspect.  What line were you reading?

MR GAGELER:   I was reading line 10 on my page 7, your Honour.  It is particulars (aa) to paragraph 2(g)(ii).

HIS HONOUR:   Yes.  You refer to some allegation of breach.  The version I am looking at I do not think has that allegation of breach.

MR GAGELER:   It is implicit in the reference to the non‑section 19 agreements.  Does your Honour see the label?

HIS HONOUR:   I see.

MR GAGELER: Section 19 of the Aboriginal Land Rights (Northern Territory) Act requires the Land Trust to only act in a certain way that is to grant rights or interests in land which it uses. So the allegation is that these were agreements that were entered into outside the scope of any breach of section 19 of the Act. Those are just some examples, your Honour. I can multiply them but it is not my intention to do so.

HIS HONOUR:   Yes.  Thank you, Mr Gageler.  Yes, Mr Burmester.

MR BURMESTER:   Your Honour, we have listened carefully to what counsel for the other parties have said and we see no basis other than to proceed to make orders along the lines of those sought by the Commonwealth.  There are other matters that we could raise with the plaintiffs concerning their proposed second further amended statement of claim as well as those to which Mr Gageler has drawn attention. 

The issue of whether there should be representative proceedings raises questions of its own; whether, given the statutory provisions for the Land Councils, the Land Trust that have particular representative responsibilities, there is a real issue whether it is appropriate to have two individuals able to bring representative proceedings.  Your Honour, I think therefore it is probably premature to make the orders that the plaintiffs seek seeking to have this statement of claim filed.  It may be better to leave that for another day.

HIS HONOUR:   We will come to whether Mr Merkel wishes to prosecute his application to amend in that form presently.  He has not yet come to that issue. 

MR BURMESTER:   In terms of the issue of prematurity, Mr Merkel has his view as to what amounts to an acquisition but part of the problem is that this case turns on whether the just terms clause ensures that if there is an acquisition there is reasonable or just terms payable and therefore no invalidity.  Until one can identify the acquisition with precision, it is very difficult, in our view, to determine the validity of the legislation.  Certainly there may be powers to do certain things in the future, but where the issue at stake is whether the legislation if valid because the provision of the compensation fails to meet the constitutional standard if that constitutional standard otherwise applies, in our submission, it is difficult to determine that without some clear articulation of the diminution of the property interest. 

It may be, your Honour, that further work could clarify that situation, but certainly it is the Commonwealth’s view that on 17 February when the lease comes into effect it is not as if the plaintiff’s in this case lose their entitlement to stay on the land, to do the things they have been doing.  It is not as if the Council suddenly goes out of business.  There is a lease which diminishes the Land Trust’s fee simple but, as your Honour noted, the Land Trust is not a plaintiff in these proceedings. 

The other derivative rights that flow from the Land Trust fee simple are, in the Commonwealth’s contention, largely preserved by the legislation, subject, of course, to the Commonwealth’s ability to do what it considers needs to be done in order to carry out its policy objectives.  But it is difficult, in the absence of knowing what has actually happened on the ground in the sense of what has happened to the various interests of the plaintiff’s, in our view, to proceed to determine whether the acquisition of property that is alleged to have occurred is contrary to the statutory formula and whether that statutory formula is constitutional or not. 

So, your Honour, I still seek to have the orders sought in our summons made today.  I see no option other than to vacating the current

orders.  I do not think reinstating the former statement of claim is an appropriate course of action given all the facts and developments that have occurred since.

HIS HONOUR:   That would leave the position of the added defendant in limbo.  There would be a statement of claim in an action which had been constituted by parties other than those which now constitute the action.

MR BURMESTER:   Yes, your Honour.  I do not think it is satisfactory.

HIS HONOUR:   Yes.  Thank you, Mr Burmester.

On 25 October 2007 the first plaintiff, Mr Wurridjal, and what is now the third plaintiff, Bawinanga Aboriginal Corporation, commenced proceedings in the original jurisdiction of this Court by filing a writ of summons naming the Commonwealth as defendant.  By that action Mr Wurridjal and Bawinanga claimed declarations that certain sections of the Northern Territory National Emergency Response Act 2007 (Cth) and certain items of Schedule 4 to the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) are invalid in their application to land at Maningrida.

The then plaintiffs in the action in their statement of claim further sought injunction, both interlocutory and permanent, restraining the Commonwealth from acting upon or giving effect to the impugned provisions of the legislation or from taking or continuing in possession of the Maningrida land pursuant to the lease for which provision is made in the Northern Territory National Emergency Response Act (the “Emergency Response Act”).

The matter was brought on for directions soon after its issue and on 1 November, when the matter came before me, I was informed by counsel for the then plaintiffs that they were anxious to see if there was any possibility of having a special case agreed and directions made that would enable a hearing, if this Court was able to accommodate it, at the end of February or early in March. 

In the course of that hearing I adverted to a number of matters which had struck me as being possible difficulties in the particular formulations then adopted in the plaintiff’s pleadings and I pointed to the need to identify with precision the case which the plaintiffs would seek to make. In particular, at that first return of the matter, I pointed to the fact that the plaintiffs did not then challenge those provisions of the Emergency Response Act and the FaCSIA Act which provide, in effect, that if there is an acquisition of property effected by the implementation of the Act, the Commonwealth is obliged to provide just terms.

On 1 November the matter was stood over for further directions on 3 December.  The plaintiffs were given leave to file and serve an amended statement of claim.  On 1 November counsel for the Commonwealth, Mr Burmester, indicated that the Commonwealth would seek to, as he then put it, “sit down with counsel for the plaintiffs and see what progress we can make”. 

When the matter returned on 3 December, counsel for the plaintiffs indicated that the parties had been having “extensive discussions” on the statement of claim and that that statement of claim had been modified in various ways “to try and meet whatever the requirements would be for a demurrer on the part of the Commonwealth”.   Those difficulties had not been resolved by 3 December, but counsel for the plaintiff then indicated a desire to add a second plaintiff, Ms Garlbin, and to continue the discussions that were then taking place with the Commonwealth about putting the statement of claim in a form that would enable demurrer. 

On 3 December the matter was stood over until 7 December on which day orders were made joining Ms Garlbin as a second plaintiff and granting the plaintiffs leave to file a further amended statement of claim.  It then appeared that the parties expected to be in a position to agree upon a form of statement of claim to which the Commonwealth would demur and, accordingly, on 7 December I indicated the kinds of direction that would be given to enable fixing of the matter for hearing in the second week of the sittings commencing at the end of February this year over a period of three days. 

At the end of that hearing on 7 December the only orders that were made were orders joining Ms Garlbin as a plaintiff and amending the proceedings accordingly and granting leave to the plaintiffs to file and serve their amended statement of claim.  The parties were informed that if a demurrer was filed, directions of the kind I had indicated could be made on the papers without need for any further attendance by counsel.

Ultimately, on 14 December the parties filed consent to the giving of directions, the Commonwealth having on the previous day delivered a demurrer to the whole of the further amended statement of claim then relied upon by the plaintiffs. The Commonwealth stated two grounds in its demurrer; first, that the alleged respective interests of the plaintiffs are either not property within the meaning of section 51(xxxi) of the Constitution or are not property which is capable of being acquired or which has been acquired within the meaning of section 51(xxxi); and, second, that none of the provisions of the Emergency Response Act or the FaCSIA Act are invalid as alleged.

In that regard, it may be noticed that the further amended statement of claim filed by the plaintiffs had, unlike the initial statement of claim, challenged the validity of those provisions of both the Emergency Response Act and the FaCSIA Act which, on their face, seem to be directed to requiring the Commonwealth to pay just terms if there were an acquisition.

On 30 January the plaintiffs’ application to join Arnhem Land Aboriginal Land Trust as a defendant to the action came on for hearing before me.  There being no opposition to the joinder of Arnhem Land Aboriginal Land Trust, orders to that effect were made.  The directions which had been previously given to make the case ready for hearing by a Full Court were renewed but, of course, there being a new party added, the plaintiffs had leave to file a fresh statement of claim.

The plaintiffs have since reformulated their statement of claim, it would seem, more than once.  A deal of correspondence has passed between the parties, including correspondence from Northern Land Council on behalf of Arnhem Land Aboriginal Land Trust, in which it is suggested that the proposed further amended statement of claim is not in a form which can give rise to any useful proceedings by way of demurrer in the Court.

Proceedings by way of demurrer have often been used in this Court to determine disputed questions of constitutional validity.  Critical to the effective use of the demurrer process, however, has been the presupposition for the adoption of that procedure which is, as Chief Justice Dixon said in South Australia v Commonwealth (1962) 108 CLR 130 at 142:

a pleading which is drawn so as to allege with distinctness and clearness the constituent facts of the cause of action or defence set up and which puts aside the temptation to adorn the pleading with evidentiary statements and tendentious legal conclusions.  It is not going too far to say that what justifies demurrer as a means of determining a legal controversy is the supposition that the pleading will contain and contain only a statement of the material facts on which the party pleading relies for his claim or defence and not the evidence by which they are to be proved.

The disputes which now exist between the parties to the suit appear to hinge about whether the pleading which the plaintiffs would propose does sufficiently identify the material facts on which the plaintiffs rely for their claim when one discards from consideration statements which are no more than evidentiary and statements which involve some legal conclusion.

It is neither possible nor necessary to embark upon any determination of where the rights and wrongs in that debate lie.  The position in which the litigation now stands is that the plaintiffs, having joined Arnhem Land Aboriginal Land Trust as a defendant, must amend their pleadings.  The pleadings which they propose are not pleadings to which the Commonwealth will demur. 

If the Commonwealth does not demur to the pleading, there is then nothing which can be referred for argument before the Full Court in three weeks time and although there has been reference to the possibility of turning the clock back and looking back to an earlier form of a statement of claim in the action before Arnhem Land Aboriginal Land Trust was joined as a defendant, it is not possible, at least without very considerable difficulty, to turn the clock back in that fashion.

In these circumstances, there is no choice except to vacate the hearing date.  It is unfortunate that that should be so, most especially as it is unfortunate when three days have been assigned for the hearing of this matter and other litigants are now put in the position of having their cases brought forward rather more quickly than they might reasonably have expected.  But whatever may be the rights or wrongs of the reasons underpinning the disputes that have now emerged, there is no statement of claim in the action as presently constituted to which the Commonwealth demurs and which can be the subject of reference to a Full Court.  That being so, the hearing date of this matter is vacated.

Mr Merkel, do you prosecute the application to amend in the form of the most recent version of the statement of claim?

MR MERKEL:   Given all that has happened, your Honour, we would ask if that summons could be adjourned sine die with liberty to apply.  We would wish to pursue the demurrer possibility with our learned friends and, as we have said from the outset, we are conscious that we can only do so on an agreed format so we would wish to have the opportunity to have discussions with them both as to that prospect and ‑ ‑ ‑

HIS HONOUR:   There must be an end to this at some point soon, Mr Merkel.  This action began in October last, it has been treated as a matter of urgency.  The Court has gone out of its way to attempt to bring this matter on as promptly as it could.  There has now got to be an end to it.  Why should you not come back for further directions in, say, four weeks time on the understanding that if the parties are not agreed the action will simply be remitted for trial elsewhere?

MR MERKEL:   Well, your Honour, we are conscious of that as a real possibility, your Honour, but what we would ask is that if it could be adjourned to a date to be fixed no later than four weeks hence.  We would like the opportunity of coming back earlier, your Honour, because we would wish to try and resolve the matters with our learned friends by agreement and, as soon as that is done, have the opportunity of approaching your Honour on that, but we accept it should be no later than four weeks.

HIS HONOUR:   What I will do is adjourn your summons and the matter generally for further directions.  Is Monday, 10 March Labour Day in Melbourne?  I think it is, is it not?

MR MERKEL:   I am told, yes, your Honour.

HIS HONOUR:   I had better not choose that, had I?  Tuesday, the 11th?

MR MERKEL:   Yes, that would be fine, your Honour.

HIS HONOUR:   Tuesday, 11 March.  Yes, that may be a difficult day.  If you wish it heard before court hours it would have to be, I think, over to Wednesday 12.  No, we can do it 9.30 for an hour Tuesday 11.

MR MERKEL:   Yes, thank you.

HIS HONOUR:   Tuesday 11 at 9.30 am.  It will be liberty to apply to any party on not less than 48 hours notice in writing to the opposite parties.  What should I do with the costs, do you say?

MR MERKEL:   We would say reserve them, your Honour.

HIS HONOUR:   Yes.  Does any party wish to be heard against my making orders in the form of adjourning Mr Merkel’s client’s summons and the matter generally for further directions on Tuesday, 11 March at 9.30 in Melbourne and, if needs be, by video link to places where counsel may more conveniently deal with the matter, liberty to apply on 48 hours notice in writing and reserve the costs?

MR BURMESTER:    Your Honour, you have vacated the hearing date.  I just wonder if you need to vacate the other orders?  I guess not necessarily.  The general adjournment is probably sufficient.  On that basis I am ‑ ‑ ‑

HIS HONOUR:   Lest there be any doubt about it, I vacate the directions for submissions.

MR BURMESTER:    Otherwise I am content, your Honour.

HIS HONOUR:   The parties may if they wish spend their time preparing submissions about a proceeding that is not coming on, but there does not seem a great deal of utility in that.  Could I say this about Tuesday 11.  If we need to do it by video link to two destinations, so be it.  It is better if we can do it by video link to only one, though.  The quality of reception, if we have a three‑way link, is markedly less than with a two‑way link, but those are minor practical matters that I simply draw to the attention of counsel.  The bottom line is, in the end I will do it with whatever proves to be the most convenient method of doing it.  Is there anything else then that I need to deal with?  Very well, adjourn the Court.

AT 10.22 AM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 11 MARCH 2008