Yurpangath, Thanikwith, Waranggu &Taepadhigi Peoples & Ors v Qld

[1994] HCATrans 73

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Brisbane      Nos 46 to 49 of 1993

B e t w e e n

THE MEMBERS OF THE
  TJUNGUNDJI YURPANGATH,
  THANIKWITH, WARANGGU AND
  TAEPADHIGI PEOPLES

EDGAR A. HARRIS AND OTHERS

EILEEN HEINERMANN AND

OTHERS

JERRY MISSION AND OTHERS

Appellants

and

THE STATE OF QUEENSLAND
  AND ANOTHER

Respondents

BRENNAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 17 OCTOBER 1994, AT 10.00 AM

Copyright in the High Court of Australia

MR B. MORRIS:   May it please, your Honour, I appear for the applicants in the motion and plaintiffs in the actions of the four matters, numbers 46, 47, 48 and 49 of 1993.

HIS HONOUR:   Yes, Mr Morris.

MR MORRIS:   Your Honour, this is an application made ex parte under Order 8, rule 1, subrule 2 for leave to extend the time for service of the writs.  The writs are due to expire on the 18th - they were taken out on 18 October 1993.  They are due to expire and we are seeking an extension, your Honour, for the statutory six months.  There has been no attempt at serving them, your Honour, and I would rely upon, for the facts and circumstances, on an affidavit of John Raymond Rees Bottoms which was filed in similar terms in each matter.

HIS HONOUR:   Yes.  I have read the affidavit, Mr Morris.

MR MORRIS:   If your Honour please.

HIS HONOUR:   But what is the relationship between the concern about the validity of the Native Title Act and the subject matter of the writs?

MR MORRIS:   The Native Title Act, at the time the writs were taken out, your Honour, had not been passed.

HIS HONOUR:   Yes.

MR MORRIS:   And the Native Title Act purports to take pastoral lease or take unto itself jurisdiction in pastoral leases.  Pastoral leases occur in this matter.  In another place this morning, or later in the week, Sir Maurice Byers will be arguing regarding the effect of the Native Title Act and the pastoral leases that one of the contentions that will be made in another matter will be that the pastoral leases in this area are not affected by the Native Title Act.

HIS HONOUR:   Well, I could understand that that is a subject for discussion.

MR MORRIS:   Yes.

HIS HONOUR:   But what I do not understand is that the affidavit in support of this application advances, as I understand it, the disputed question as to the validity of the Native Title Act as the reason for non‑service and the basis of the application for extension.

MR MORRIS:   The basis of the application, your Honour, is it has not been served because the plaintiffs in all matters are of the Aboriginal race and, your Honour, they are of limited means and they would not wish to incur the expense of servicing and commencing an action and incurring the costs of the defendants if it were later they were to discontinue or having conducted it - having commenced and served, then find that the interpretation of a case over which they have no control or appearance is against them and their action is ill advised.

It is a case, your Honour, where - paragraph 13 of Mr Bottom's affidavit:

The plaintiffs have taken the present course of action in not serving the various defendants with the writs in this climate of uncertainty and thereby causing the defendants costs and inconvenience in responding thereto.

HIS HONOUR:   I understand that, but what has that got to do with the Native Title Act?

MR MORRIS:   Well, your Honour, the rights that - the writ - what they are seeking is declarations concerning the land, different areas of land, the declarations that they are the natural owners of the land, that they hold Aboriginal title.

HIS HONOUR:   They are basing their claim, in other words, upon the common law of native title.

MR MORRIS:   Yes, your Honour.

HIS HONOUR:   Well, my problem is this.  The writ is based upon an assertion of a common law entitlement to recognition of the native title of the plaintiff peoples.

MR MORRIS:   Yes, your Honour.

HIS HONOUR:   There is a Native Title Act, the validity of which is under consideration by the full bench of the High Court.  The Native Title Act, if valid, is an act under which the plaintiffs might have an alternative claim.

MR MORRIS:   Yes, your Honour.

HIS HONOUR:   What is the relationship between the common law claim in these writs and the prospect of a claim under the Native Title Act?

MR MORRIS:   The Native Title Act, your Honour, would remove the pastoral leases in the area from native title, whereas the Aborigines or the plaintiffs here are claiming the native title over those areas and they are seeking to maintain their rights.  Now the Native Title Act - when the writs were taken out, there was considerable speculation regarding a cut-off date of the rights of the parties once the Native Title Act was passed.  Now in the circumstances the writs were taken out before the Native Title Act was passed, and if the Native Title Act is found to be invalid, well, then their rights are preserved - these rights continue.  If the Native Title Act is found valid, such interpretations as may be put upon the Native Title Act, then these actions, having been commenced before the Native Title Act came into effect, they may have preserved some additional rights than the Native Title Act provides them.

At this stage, your Honour, there was the interpretation of the Act still unclear.  The plaintiffs here do not wish to lose the benefit of what rights they may have at common law and that they are seeking to, in these writs, enforce.

HIS HONOUR:   Yes, I see.  In other words, the Native Title Act may have had an effect upon the common law claim.

MR MORRIS:   The Native Title Act would have, yes, your Honour.  It eliminated their right to pastoral leases.

HIS HONOUR:   Yes.  Yes, very well.  Well, then, I will make an order, not quite in the terms, however, in which it is sought.  I will mention the problem which concerns me, Mr Morris, and it is a question if the others can be accommodated in the framing of an order.

It is highly undesirable that writs should be issued and be allowed simply to lie without service against defendants who have large and important interests in the community, in the service of the community, and I am speaking there of governments, and largely important commercial interests in the case of the corporate defendants that may be affected by dependency of an unserved writ.

So that whilst I will be prepared to extend the time, I would want the action frozen until the question of validity of the Native Title Act is determined by the High Court, that being the basis, as I understand it, that you want to have the time extended.

MR MORRIS:   Yes, your Honour.

HIS HONOUR:   So that I would only extend the time upon an undertaking by you that the writ will not be served without the consent of the Curt or a Justice until the Full Bench of the High Court shall determine the validity of the Native Title Act in the litigation now pending before the Full Bench.

MR MORRIS:   If your Honour please.  Your Honour, is it anticipated then that with the extension of time of six months we would need to seek renewal after six months - - -

HIS HONOUR:   Yes.

MR MORRIS:   - - - if the court has not yet determined that it will be relying upon this order then to roll it over on the time.

HIS HONOUR:   Yes.

MR MORRIS:   If your Honour please.

HIS HONOUR:   And as I say without the consent of a court or justice, so that if there was some particular necessity that arose, that leave could be sought.

MR MORRIS:   If your Honour please.

HIS HONOUR:   But in the meantime, the action will be as close as may be, frozen so that there can be no question of interference with the rights or expectations of the defendants.

MR MORRIS:   If your Honour please.

HIS HONOUR:   Well, now, do you give that undertaking on behalf of the respective plaintiffs?

MR MORRIS:   Yes, I can, your Honour.

HIS HONOUR:   Very well, then.  On the plaintiffs by their counsel undertaking that none of the writs in these actions will be served on any of the defendants without the leave of the Court or a Justice, pending the determination by the Full Court of the High Court of the validity of the Native Title Act 1993 (Cth) now pending before that Court, I extend the time for the service of the original writs for six months pursuant to Order 8 rule 1(2).

MR MORRIS:   Thank you, your Honour.

HIS HONOUR:   Adjourn the court.

AT 10.12 AM THE MATTER WAS ADJOURNED SINE DIE