Wurridjal & Ors v The Commonwealth of Australia

[2008] HCATrans 8

[2008] HCATrans 008

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

Respondent

Directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON WEDNESDAY, 30 JANUARY 2008, AT 9.01 AM

Copyright in the High Court of Australia

MR R.M. NIALL:   May it please the Court, I appear with my learned friend MS K.L. WALKER for the plaintiffs.  (instructed by Holding Redlich)

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

MR S.J. GAGELER, SC:   If your Honour pleases, I appear with MR S.A. GLACKEN for the Arnhem Land Aboriginal Land Trust which is the respondent to the summons dated 22 January 2008.   (instructed by Arnhem Land Aboriginal Land Trust)

HIS HONOUR:   I should inform counsel that there has been a difficulty about movement of the file in the matter and I am therefore not yet in possession of the file.  It may be that this will present no difficulty, but let us see where we get to.  Mr Niall, I understand it is your application, is it not, to join Arnhem Land Aboriginal Land Trust, is that right?

MR NIALL:   It is, your Honour.  It is an application made by summons dated 22 January 2008 and it ‑ ‑ ‑

HIS HONOUR:   Can I just interrupt you then and ask what the attitude of your client, Mr Gageler, is to the application to join it?

MR GAGELER:   Your Honour, we are not in a position to resist joinder.  We are seen to be a necessary party.  We are directly affected by the relief sought in the summons.

HIS HONOUR:   Yes, and there is no other aspect of the question of joinder to which I should give attention, is there?

MR GAGELER:   No, your Honour.

HIS HONOUR:   There is not yet I think, is there, any form of statement of claim against you which would reveal what, if any, relief is sought directly against your client, or am I incorrect in that recollection?

MR GAGELER:   Your Honour, there are some problems with the pleading.  Those are problems that we are raising with the parties and we need not concern your Honour with those today.  But as we read the pleading, there is an allegation that the lease that is granted by force of the Commonwealth emergency statute by us to the Commonwealth is invalid.  What is sought is a declaration of invalidity of the provisions that affect that lease.  That seems to us to be sufficient for us to be there.  Together with an injunction ‑ ‑ ‑

HIS HONOUR:   Yes, and indeed probably makes you a necessary party, I would have thought, not just a sufficient party.

MR GAGELER:   That is the way we see it, your Honour.

HIS HONOUR:   Yes.

MR GAGELER:   But beyond that, there are some real problems with the pleading as we see it.  There is a lack of clarity, there is incompleteness and, in some respects, there are simply inaccuracies in the facts that are alleged.  We are taking that up with the parties.  We have informed the parties if it is their desire that the Commonwealth demur and demurrer proceed before a Full Court.  We will not stand in the way of that.  So far as the hearing of the demurrer is concerned, we will seek to take the role of an intervenor.  There are things that we may wish to say when we see how the issues are precisely joined.

HIS HONOUR:   Are you in a position yet to offer any indication of in whose interests your submissions would be, other than the immediate interests of your own client, which I assume they would be pursuing.

MR GAGELER:   Of course.  No, your Honour, I am not, I am afraid.  We will certainly be saying, your Honour, on the hearing of any demurrer that there are certain questions that are not ripe for judicial determination at this stage.

HIS HONOUR:   Could you explain to me any better than that what that entails?  Is it a proposition that I need to be informed about in determining whether or not to set the demurrer down, or the proposed demurrer down, for hearing by a Full Court?

MR GAGELER:   Possibly.  What I will say to your Honour now is a little half-baked because we have had very little time to consider this.  I have also informed counsel for the plaintiffs and the Commonwealth that my client will not be standing in the way of the demurrer proceeding, but can I just point out two things.  One is, for a demurrer to be of utility, the material facts need to be precise and complete.  We are concerned, for example, with the allegation of the existence of native title that one finds tucked towards the end of paragraph 2 of the existing statement of claim that there is simply a bare allegation of the existence of native title pleading the terms of the native title statute effectively. 

Now, it seems to us, to determine what might be a really quite important question as to whether native title in any form constitutes property that is protected by section 51(xxxi) of the Constitution, it may be necessary to know the incidence of the native title in question. Now, that is not spelt out in any way and we may well be saying that is not an appropriate case, even if a demurrer were to proceed, for that question to be determined.

Separately, your Honour, there is a question of prematurity in that there are various allegations of acquisition of various forms of property.  It seems to us that on a proper construction of the Commonwealth legislation no property is affected by the grant of the Commonwealth lease, save where an exercise of ministerial discretion is involved and, in the absence of various statutory powers being exercised, it may well be that no question currently arises as to an acquisition of property.  There are some very real ‑ ‑ ‑

HIS HONOUR:   So if that argument is right, is it an argument which leads to the conclusion that the statement of claim as presently framed is demurrable?  It does not disclose a cause of action because it does not demonstrate acquisition?

MR GAGELER:   Possibly, and it may well be that those points are sought to be captured within the two rather cryptic paragraphs of the Commonwealth demurrer, but it would be demurrable on a procedural basis rather than on a subsidy basis.

HIS HONOUR:   Yes, the pejorative description may be apt, it may not.

MR GAGELER:   It was not meant to be pejorative, your Honour.  I am sorry.

HIS HONOUR:   No, I understand that.  The overriding concern I have about this matter, and this is addressed to all parties, is that we are coming closer to the time assigned for the hearing of these proceedings.  We are seeking to add parties now, we are seeking to amend the pleading which will lie at the heart of the demurrer.  We have to get to an end of this, get to an end of it very soon.

Now, of course, the end to which we have to get must be a satisfactory end.  We must have the pleading in proper form, but if it is to be dealt with on demurrer, the demurrer must be in a form the parties are content with.  The expression last used 12 years ago in the commercial list of “get on with it” is one which is trembling on my lips.  Now, I have a form of short minutes of order which I think is supplied by your party, is it not, Mr Gageler?

MR GAGELER:   Yes, it is, your Honour.

HIS HONOUR:   Have the existing parties for the action seen those proposed short minutes?

MR GAGELER:   Yes, they have.

HIS HONOUR:   I have also a form of consent signed on behalf of the defendant and – the existing defendant that is, the Commonwealth – and the plaintiffs, which seems, I think, to march in step at least so far as the timetable is concerned but is cast in slightly different form.

MR GAGELER:   Your Honour, we understood that form of consent to have been reflected in some orders that your Honour made on either 13 or 14 December.  We do not have a copy of the orders.

HIS HONOUR:   Yes.  Those are the orders I think recorded in our records as made on 14 December.

MR GAGELER:   Which would mean that the date referred to in paragraph 2 of the proposed short minutes order is incorrect, it should be 14 December.

HIS HONOUR:   Yes.  But although there is vacation of orders 2 to 8, am I right to understand, Mr Gageler, that the timetable is then replicated in paragraph 7?  There is no alteration in the dates?

MR GAGELER:   No, there is no alteration of the dates.  The only addition is that the second defendant – that is us – is put in the same position as the intervenor so far as the filing of submissions is concerned.

HIS HONOUR:   Yes, I understand that.  Although it is your summons, Mr Niall, might I simply ask Mr Burmester, do you wish to be heard, Mr Burmester, in opposition to my making orders in terms of the short minutes provided by Mr Gageler?

MR BURMESTER:   No, your Honour.  We do not oppose the adding of the Arnhem Land Aboriginal Land Trust.  We reserve our position as to what consequence that may or may not have for the relief that the Court may or may not provide.  As to the short minutes in terms of the timetable, the dates for filing submissions have not changed, as my friend has said.  It has meant the dates for filing a defence and demurrer to the amended application have shifted. 

There is not a lot of time between when the amended statement of claim is to be filed and when our defence is in, but this is on the basis that there will be consultations between the parties.  If there is no agreement as to the form of amendments, then they are unlikely to proceed.  That is my understanding of how the plaintiffs were approaching it.  On that basis we were happy with the revised timetable which still has all the parties filing submissions on the dates originally set.  So on that basis, we consent.

HIS HONOUR:   MrNiall, do you want to be heard against my making orders in terms of the short minutes?

MR NIALL:   No, your Honour.  We would support those orders.

HIS HONOUR:   Can I say this to all parties.  If this case looks as though it is going off the rails, application is going to have to be made very quickly to tell us whether that is going to stand in the way of the fixture that has presently been made of this case for March.  For my own part, I would regard Monday, 11 February as the absolute last chance to come along and say this case has gone off the rails.  If it were to emerge that the fixture had to be undone at some point later than that, that would be a most unfortunate outcome. 

Can I simply impress upon the parties the need to decide and decide early whether something is going wrong in this case that cannot be fixed, that we will have to unfix the hearing date.  We have assigned two or three days, some extended period for the determination of this case in, I think, the March sittings.  Do not come along at the last minute and say something has gone wrong.  That would be regarded as a seriously unfriendly act.  With those admonitions in mind, Mr Gageler, you wished to add something, did you?

MR GAGELER:   Would your Honour consider listing the matter for mention on 11 February?

HIS HONOUR:   To what end?   I will, but it would seem to me simply to impose upon the parties another round of costs and I am reluctant to do that.

MR GAGELER:   Yes.  The only end, your Honour, is it is a very tight timetable between now and then.

HIS HONOUR:   I understand that.

MR GAGELER:   The problems may not have crystallised in the minds of all parties by sufficient time before the 11th to bring it to the Court’s attention.

HIS HONOUR:   I understand the concentrating effect of having a date fixed.  I am not unaware of that fact, but I am hesitant about imposing on parties the additional costs of coming.

MR GAGELER:   I appreciate that.

HIS HONOUR:   I am not minded to fix it on 11 February.  If the parties really have not heard what I have said, (a) I am astonished and (b) there is not much more I can do.  Subject then to amending paragraph 2 of the short minutes of order proposed by Mr Gageler to read, “vacate the orders 2 to 8 made on 14 December”, there will be orders in terms of those short minutes.  Should I not, in addition to those minutes, either reserve the costs or make the costs of this application costs in the proceeding?

MR GAGELER:   Reserve, your Honour.

HIS HONOUR:   Does anybody wish to be heard against reservation?

MR NIALL:   No, your Honour.

HIS HONOUR:   There will be a further order then added to the short minutes, reserve costs.  There will be orders in those terms.  Is there any other matter that counsel seek to raise?  Very well.  Adjourn the Court.

AT 9.18 AM THE MATTER WAS CONCLUDED