Yougarla & Ors v WA & Anor

[2001] HCATrans 8

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D7 of 2000

B e t w e e n -

THE COMMONWEALTH OF AUSTRALIA

Appellant

and

MARY YARMIRR, CHARLIE WARDAGA, KHAKI MARALA, ILIJILI LAMILAMI, JOY WILLIAMS, CHARLIE MUNGULDA, RACHEL NIMILGA, ANDREW YARMIRR, CHRISTINE YARMIRR

First Respondents

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

PASPALEY PEARLING COMPANY PTY LTD

Third Respondent

NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION

Fourth Respondents

OCEAN TRAWLER PTY LTD

Fifth Respondent

SHINE FISHERIES PTY LTD

Sixth Respondent

M.G. KAILIS GULF FISHERIES PTY LTD

Seventh Respondent

PAVALINA HENWOOD

Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST

Ninth Respondent

Office of the Registry
  Darwin  No D9 of 2000

B e t w e e n -

MARY YARMIRR, CHARLIE WARDAGA, KHAKI MARALA, ILIJILI LAMILAMI, JOY WILLIAMS, CHARLIE MUNGULDA, RACHEL NIMILGA, ANDREW YARMIRR, CHRISTINE YARMIRR

Appellants

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

THE COMMONWEALTH OF AUSTRALIA

Second Respondent

PASPALEY PEARLING COMPANY PTY LTD

Third Respondent

NT FISHING INDUSTRY COUNCIL INC AND NT TRAWLER OWNERS ASSOCIATION

Fourth Respondents

OCEAN TRAWLER PTY LTD

Fifth Respondent

SHINE FISHERIES PTY LTD

Sixth Respondent

M.G. KAILIS GULF FISHERIES PTY LTD

Seventh Respondent

PAVALINA HENWOOD

Eighth Respondent

ARNHEM LAND ABORIGINAL LAND TRUST

Ninth Respondent

For directions

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 5 FEBRUARY 2001, AT 11.58 AM

(Continued from 11/12/00)

Copyright in the High Court of Australia

________________

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth:   Yes, if your Honour pleases, I appear with my learned friends, DR M.A. PERRY and MR S.B LLOYD and MR J.S. STELLIOS, for the appellant in No D7 of 2000 and for the second respondent in No D9 of 2000.  (instructed by the Australian Government Solicitor).

MR J. BASTEN, QC:   Yes, I appear with my learned friends, MR K.R. HOWIE, SC and MR S.A. GLACKEN, for the appellant in No D9 of 2000 and for the first respondent in No D7 of 2000.  (instructed by the Northern Land Council)

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory:   Your Honour, I appear with MS R.J. WEBB for the Northern Territory in each of No D7 of 2000 and No D9 of 2000 where the Northern Territory is respondent.  (instructed by the Solicitor for the Northern Territory)

MR G.E. HILEY, QC:   If the Court pleases, I appear for the third, fourth, fifth, sixth and seventh respondents in appeal No D9 of 2000 with my learned friend, MR N.J. HENWOOD.  (instructed by Cridlands Lawyers)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia. May it please the Court, I appear with my learned friend, MR K.M. PETTIT, on behalf of the Attorney‑General for Western Australia intervening in both matters.  (instructed by the Crown Solicitor for Western Australia)

MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia:   If it please your Honour, I appear for the Attorney‑General of South Australia seeking leave to intervene in both matters.  (instructed by the Crown Solicitor for South Australia)

MR H.B. FRASER, QC:   May it please the Court, I appear with MR P.J. FLANAGAN, for the Attorney‑General for Queensland seeking leave to intervene in No D9 of 2000.  (instructed by the Crown Solicitor for Queensland)

MR D.F. JACKSON, QC:   If your Honour pleases, I appear with my learned friend, MR S.J. GAGELER, SC, seeking leave to intervene in each matter on behalf of the Lardil, Kaiadilt Yangkall and Gangalidda peoples.  (instructed by Chalk & Fitzgerald)

MR B.A. KEON‑COHEN, QC:If the Court pleases, I appear with my learned friend, MR C.F. THOMSON, seeking leave to intervene on behalf of Mirimbiak Nations Aboriginal Corporation in No D7 of 2000.  (instructed by Mirimbiak Nations Aboriginal Corporation)

HIS HONOUR:   Yes, and only in D7?

MR KEON‑COHEN:   Yes, your Honour.

HIS HONOUR:   That is right.  Yes, thank you.

MR G.M.G. McINTYRE:   Your Honour, I appear seeking leave to intervene on behalf of the Kimberley Land Council and the Yamatji Barna Baba Maaja Aboriginal Corporation in both matters.  (instructed by Kimberley Land Council and the Yamatji Barna Baba Maaja Aboriginal Corporation)

HIS HONOUR:   In both matters?

MR McINTYRE:   Yes, your Honour.

HIS HONOUR:   Yes.  Now, is it possible to have an indication now as to whether there will be opposition to any of the applications for intervention tomorrow?

MR BENNETT:   None by us, your Honour.

MR BASTEN:   None for our part, your Honour. 

HIS HONOUR:   Yes, thank you, gentlemen.  I should also indicate for the transcript that in matter No D7, the Senior Registrar informs me that there has been no appearance filed on behalf of the eighth respondent, either in D7 or in D8, and, I think, Mr Solicitor for the Commonwealth, you have given service and so on and so forth.

MR BENNETT:   Yes, your Honour, we have.  She did not appear in the Full Court either, I think.

HIS HONOUR:   That is right, I notice that.  Then I should also indicate that in matter D9, the solicitor for the ninth respondent, the Arnhem Aboriginal Land Trust, has notified the Registrar that there will be no appearance, and that that respondent will submit save as to cost.  I think that was the previous position, as well.  Is there any matter which either party should refer me to now?

MR BENNETT:   Your Honour, there have been some discussions about order of addresses, and about times. 

HIS HONOUR:   Yes.

MR BENNETT:   In relation to times, I think we have agreement, so I do not  ‑ ‑ ‑

HIS HONOUR:   Could I just say this:  your proposed agreement would involve which order of appeals?  Which appeal would go first?

MR BENNETT:   D7, your Honour.  There are two ways of doing it.  One is to have all the arguments from all the parties in D7 then the same for D9; the other is to interweave them  ‑ ‑ ‑

HIS HONOUR:   Yes, that is right.

MR BENNETT:    ‑ ‑ ‑ which involves less movement at the Bar table, and perhaps saves a bit of time and inconvenience that way.  There is a proposed order which is being typed up at the moment ‑  it has been typed up, but there is a slight delay in printing, unfortunately, but my learned friend, Mr Pauling, has arranged that, and he should have it in a few moments, your Honour.

HIS HONOUR:   All right.

MR BENNETT:   In relation to times, as I say, I think we have agreement, that the 18 hours available in the four days  ‑ ‑ ‑

HIS HONOUR:   I am not sure there are going to be 18.  I think you should aim to finish by lunchtime on the Friday, which will take 2 hours out of that, to leave some room to move, if need be.

MR BENNETT:   Yes.  What we had agreed on –  I thought we had agreed on, prior to your Honour saying that, was six and a half for us, six and a half for Mr Basten’s clients, and five for everyone else.

HIS HONOUR:   Yes.

MR BENNETT:   That may have to be shaved in view of what your Honour said.

HIS HONOUR:   When you say six and a half for yourself and six and a half for Mr Basten, is that in what order?

MR BENNETT:   That is D7 and D9, and including replies.

HIS HONOUR:   Yes.

MR BENNETT:   With each party having the ability to split it as it sees fit.  What we had intended would have been that I would go in-chief for something like three to three and a half, have perhaps half an hour for reply, and then three to three and a half for Dr Perry and Mr Lloyd, who will be dealing with D9.  That was our proposed split.

HIS HONOUR:   Yes.  I am just anxious and I will be guided by what counsel says as to which is the best way of getting the Court into the appeal.

MR BENNETT:   Yes.

HIS HONOUR:   Because, whilst three of us, I think, sat on the leave application, four obviously did not. 

MR BENNETT:   We had rather assumed, your Honour, that we would introduce D7 and say very little, if anything, about D9.  My learned friend, Mr Basten, when he gets up to respond to us, would also introduce his cross-appeal, which is - I use the word cross-appeal  ‑ ‑ ‑

HIS HONOUR:   I think he moved first, actually.  I am not sure.  I cannot remember. 

MR BENNETT:   Anyhow, he would then introduce D9.  The issues are fairly separate.

HIS HONOUR:   They are, yes.  Yours seem to have agitated the States.

MR BENNETT:   Yes.  If your Honours wished me, in the course of my opening of D7 to introduce D9 briefly, I would be content to do so.

HIS HONOUR:   No, I think at this stage I will just be guided by what you and Mr Basten think should be the right way to do it.

MR BENNETT:   Yes.  I would certainly prefer to separate it in the way I have suggested it.

HIS HONOUR:  Yes, all right.  Do you agree with that, Mr Basten?

MR BASTEN:  Yes, as far as we are concerned, we are content to do it either way, your Honour.  I think the real issue which the parties were grappling with was that some of the interveners thought they would have nothing to say about one or other matter depending on which order they were heard in.

HIS HONOUR:  Yes, I have noticed that.

MR BASTEN:  There may be some merit in allowing that to happen. Although people may have to jump up twice, it may be that it will ultimately brief - the argument.

HIS HONOUR:  Yes.

MR BASTEN:  But we are content with the general proposition that the Solicitor outlined, your Honour, and the times.

HIS HONOUR:  Yes, all right.  Now, do any of the other party respondents have any different view to that?

MR PAULING:  Perhaps, I could introduce, your Honour - the order, it is being typed at the moment, unfortunately.

HIS HONOUR:  What I will do, I will adjourn and come back, if need be when it is ready.

MR PAULING:  That will be convenient and then we may reach consensus on it.

HIS HONOUR:  That is right.  All right.  What would be a convenient time to come back?  Well, I can deal immediately with the other matter that is in the list.

MR PAULING:  I am hoping that 10 minutes will solve the problem.

HIS HONOUR:  Yes, but you will need to adjust the times  ‑ ‑ ‑

MR PAULING:   Yes.

HIS HONOUR:  - - - to leave the safety net for Friday afternoon.  All right.

MR BASTEN:   Your Honour, could I mention one other matter?

HIS HONOUR:  Yes.

MR BASTEN:   In our written submission in D9 we indicated that we accepted some of the Commonwealth’s complaints about the drafting of the proposed amended determination.

HIS HONOUR:   Yes.

MR BASTEN:   We have now reduced that to written form.  We could, if it were convenient, with leave, file that in the Court.  We have supplied copies today to the  ‑ ‑ ‑

HIS HONOUR:   I think it would be a good idea.

MR BASTEN:   Yes, and then the Court will have it before tomorrow.

HIS HONOUR:   Yes, you have that leave.

MR BASTEN:   Thank you.

HIS HONOUR:  Well, I will stand the matters in the list until such time as counsel indicates it is convenient to mention them again, and I will go now to the Yougarla matter.  So call the matter that was not before 12.45.

AT 12.08 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.46 PM:

HIS HONOUR:   Yes, Mr Solicitor.

MR BENNETT:   I learnt very many years ago, your Honour, to be cautious about announcing that agreement was reached, but I think we have.  What has been proposed is this, your Honour:  that we separate D7 and D9, and that D7 be heard first, and then D9.  On that basis, the order of addresses in D7 would be:  the Commonwealth, Western Australia, South Australia, Yarmirr, the Northern Territory, the interveners supporting Yarmirr, and the Commonwealth in reply.

HIS HONOUR:   Just a minute.  Yes.

MR BENNETT:   So far as D9 is concerned ‑  there are some additional people ‑  the order would be:  Yarmirr, interveners supporting Yarmirr, the Commonwealth, the Northern Territory, the fishing parties, Queensland, Western Australia, and Yarmirr in reply. 

HIS HONOUR:   South Australia is not in D9.

MR BENNETT:   That is so, your Honour.

HIS HONOUR:   That is right.

MR BENNETT:   Yes.  So far as time is concerned, the parties will endeavour to work on ‑  we have worked on total times, so each party can divide its time up as it sees fit, but what we have discussed is six and a half for the Commonwealth, six and a half for Yarmirr, and three for the others, bearing in mind that the Commonwealth and Yarmirr will both, obviously, try and go below that if they can.  We are all aware that in an emergency we have the possibility of Friday afternoon although we hope not to do that.

HIS HONOUR:   Yes.  Take D7 for example.  That will come first.

MR BENNETT:   Yes.

HIS HONOUR:   You do not know how much of your six and a half hours you will be taking?

MR BENNETT:   I would think three, your Honour. 

HIS HONOUR:   Yes.

MR BENNETT:   I am bearing in mind the practical reality that there may be questions  ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that.

MR BENNETT:    ‑ ‑ ‑questions I may need the lunch hour to deal with.

HIS HONOUR:   Yes, I understand that.  When should D7 finish on this projected ‑ ‑ ‑?

MR BENNETT:   I had not thought that through, your Honour, but at a guess ‑  three, six - sometime on Wednesday, on that basis.

HIS HONOUR:   Anyhow, the Court can look at that as things progress, that is probably the best way to do it.

MR BENNETT:   Yes.

HIS HONOUR:   But at the moment, you would be starting first with D7, and that would  ‑ ‑ ‑

MR BENNETT:   Yes, your Honour.  If your Honour wishes, the parties can endeavour to put times against names in that draft list so one has a specific time of day to aim for, for everyone, if your Honour feels that would be of assistance.

HIS HONOUR:   I think it would be, if that could be done overnight. 

MR BENNETT:   Yes, if your Honour pleases.

HIS HONOUR:   Yes, all right.  Thank you, gentlemen.

MR BENNETT:   If your Honour pleases. 

HIS HONOUR:   You said, I think, Mr Solicitor, that in the Yarmirr appeal there will be a change of counsel?

MR BENNETT:   Your Honour, what is proposed on behalf of the Commonwealth is that I will address in D7 and that Dr Perry will address on the bulk of D9 and Mr Lloyd on a small part of D9.

HIS HONOUR:   Right, thank you.  Can we call the Yougarla matters again.

AT 12.52 PM THE MATTER WAS CONCLUDED