Wilson & Ors v Minister for Aboriginal and Torres Strait Islander Affairs & Anor A21/1996 [1996] HCATrans 234 (14 June 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A21 of 1996

B e t w e e n -

DOROTHY ANN WILSON, DULCIE CECELIA WILSON, BERTHA GOLLAN, MARGUERITA EFFIE WILSON, JENNIFER CHRISTINE GRACE, BETTY ELIZA TATT, VEENA JOYCE GOLLAN, AUDREY MARY DIX and BERYL LENA KROPINYERI

Plaintiffs

and

THE MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS and JANE HAMILTON MATHEWS

Defendants

Application for a stay

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 JUNE 1996, AT 3.04 PM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC: If your Honour pleases, I appear with my learned friend, DR S.C. CHURCHES, for the plaintiffs. (instructed by Piper Alderman)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: Your Honour, I now appear with, MS M. A. PERRY, for the Minister. (instructed by the Australian Government Solicitor)

MR E. WILLHEIM: Your Honour, I appear for the second defendant to submit to the order of the Court except as to costs. (instructed by the Australian Government Solicitor)

HIS HONOUR: You are the party against whom the injunction is sought, are you not?

MR WILLHEIM: That is so, your Honour, yes.

HIS HONOUR: I see. What am I to make of all this?

MR ABBOTT: Your Honour, I have an outline of submissions which I ask to hand up to your Honour.

HIS HONOUR: Before you launch into a full-scale argument, I had better find out what the attitude of the Solicitor is.

MR GRIFFITH: Your Honour, the attitude is probably covered by the outline of submissions in that, your Honour, it is expected that the report will be made at the end of this month and, your Honour, there has been an undertaking given as between counsel, my learned friend and my learned friend, as I understand it, that seven days notice will be given of the proposed date of delivery of the report to the Minister. So that might happen at any time between now and the end of the month the seven days - - -

HIS HONOUR: The seven days may, yes.

MR GRIFFITH: The seven days may, your Honour. Now, your Honour, really the point of difference in this application is, your Honour, that it was always appreciated in this matter that it would seem hopeless to apply for a stay before the matter came on before the Full Court.

HIS HONOUR: A stay would not be appropriate in any event, would it?

MR GRIFFITH: Yes. So, your Honour, now it has come on and the Court has indicated that the decision is reserved, your Honour, really the issue seems to be, your Honour, whether there should be a stay order now because of the uncertainty as to the result. We accept that there is clearly an arguable case on the issue that my learned friend put or whether, your Honour, and this is my submission to be put, that given that the seven s notice has not yet been given, it may well be, your Honour, that the issue of the result, if not the reasons, might be known before the end of the month and then it would be quite unnecessary to consider the issue of a stay.

HIS HONOUR: That may be so, but I do not think one should proceed on that basis.

MR GRIFFITH: We are not proceeding on on that basis. It may be so or may not be so, your Honour, that is the basis on which we proceed. But, your Honour, really the apprehension is that if there is an equivalent of an open stay, in other words, an undertaking given, your Honour, there are difficulties because of the matters of public interest, and the desirability to know whether or not this report will be given, or whether it is necessary to start again as the statutory procedures would require if it is necessary to appoint a new reporter. Your Honour, my application is that rather than proceed to hear this application for a stay, your Honour should, for the moment, merely adjourn this summons, and there is no issue about short service and all that, your Honour, so that we may wait and see what happens, and if the seven day notice is given without a result being known from the Court, then the application could be renewed, if necessary by video link, your Honour. But one would suppose it would be resolved without an order of the Court being necessary.

It is just that, really, your Honour, we are inhibited about offering an open-ended stay, that is what it boils down to, and feel that that should not be sought or given unless it is absolutely necessary that it should be. And we say that there is no necessity yet because there is no seven days notice yet given.

HIS HONOUR: That is true, and there may be logistical problems in getting counsel together at short notice.

MR GRIFFITH: Not really, your Honour, because there could be a video link. I think we both accept that that would be a convenient way to deal with it. The reality, if I could be entirely frank, your Honour, is that it would be resolved one way or another without much difficulty. But our position is we do not wish to be in the position of either offering an undertaking or being ordered to give a stay unless it is clear that it is unavoidable to face up to that because of the effluxion of time.

HIS HONOUR: When you say we, Mr Solicitor, are you really speaking on behalf of the - - -

MR GRIFFITH: No, I am not, your Honour. I am speaking because I have spoken to my learned friend, and the obvious position, of course, is - he can speak for himself - that one would not seek the Court to make an order. If the result is inevitable, one would expect an undertaking to be offered.

HIS HONOUR: You are just speaking in this context on behalf of both defendants, are you?

MR GRIFFITH: Your Honour, it only has to be on behalf of my learned friend's client because she is the one to deliver the report. We do nothing until we receive it, your Honour, and the undertaking is already in place to give seven days notice of her intention to deliver it, so it is really - I do not want to take my learned friend's submission, your Honour, but from my discussions - - -

HIS HONOUR: Mr Willheim is not making any submissions.

MR GRIFFITH: He might on the stay point, your Honour, you see, because that involves his client.

HIS HONOUR: I thought he said he submitted to any order that the Court might make.

MR GRIFFITH: He did, your Honour, but perhaps - - -

HIS HONOUR: You mean he did not mean it?

MR GRIFFITH: Your Honour, I have spoken to him and I understand he is in the position to say that his client does not wish to have an order made for a matter which could be covered by an undertaking. His instructions include the capacity to give the appropriate undertaking, alternative to order, which seems to be appropriate.

HIS HONOUR: All right, Mr Solicitor. Thank you. I will hear what Mr Abbott has to say. Mr Abbott, I do not want to hear lengthy argument on the matter if in fact it is capable of resolution by some sort of arrangement between the parties.

MR ABBOTT: Yes, your Honour. I accept that there is the best will on the other side to achieve some resolution, that is for the reporter not to report before the decision of this Court. I am concerned whether or not, because it is not clear from what my friend said, whether they are in fact withdrawing the undertaking to give a seven days notice - - -

HIS HONOUR: I think it is clear that they are not.

MR ABBOTT: Well, as I understand it then, they are now telling us, "She will not report by 30 June 1996, and you will get seven days notice."

HIS HONOUR: No, they are not saying that. I think what the Solicitor said was that it was not expected that the second defendant would report before the end of June and that seven days notice would be given before any report was submitted. Now that perhaps could be tied down to the end of June if that is a matter of any concern.

MR ABBOTT: Well it is, because it means then that, having an application on foot today and if this Court did not deliver judgment before 23 June, which is next Monday week, I think - - -

HIS HONOUR: I am sure it is not as early as that - but anyway - - -

MR ABBOTT: Yes, we would be back - sorry, next Sunday week.

HIS HONOUR: Yes.

MR ABBOTT: So, in effect, the practicalities of what is being offered, or at least suggested, are, adjourn this over for something less than a week, or something just slightly more than a week, and we will be back on the video link. I have no problems resuming this matter on the video link, but I am concerned at the cost and effort involved, and the fact that such a limited amount - - -

HIS HONOUR: What you really would want, I take it, is an undertaking of the nature that has already been given in relation to the seven days, but some assurance that it is not likely to be, at least, before the end of June and, perhaps, some time thereafter.

MR ABBOTT: Yes. Otherwise it is too short, your Honour.

HIS HONOUR: It seems to me there is a bit of a problem with the injunctive relief that you are seeking, Mr Abbott, because it is only being sought against the second defendant - - -

MR ABBOTT: Yes.

HIS HONOUR: Now, I appreciate that the thrust of this morning's case was focussed on the report, but the making of the report by itself, as far as I could see, carries no consequences. It merely paves the way for the making of the declaration.

MR ABBOTT: That is so.

HIS HONOUR: So that it might well be said, well, why should the second defendant be restrained from submitting a report when the submitting of the report of itself has no consequences for anyone and, in particular, no consequences adverse to the plaintiffs. It is really the making of the declaration that I would have thought was the matter for your concern but, in any event, if your argument is accepted by the Court, then the appointment, presumably, is ineffective and, therefore, one would think the report was ineffective. Now, what consequences that has for its declaration if one were made is another matter, but one might think also that the declaration founded upon an ineffective report would not go very far.

MR ABBOTT: No. That is why we have said in our outline, paragraph 6, your Honour, the issue may become moot. We recognise that - - -

HIS HONOUR: What I am putting to you is that, really, the person whose action may impact adversely on your clients is not the second defendant in one sense but, rather, the first defendant, because it is the Minister who makes the declaration that has consequences for the land.

MR ABBOTT: Although we have at all times, because of the peculiar nature of this debate, been conscious of the fact that this report follows hard on the heels of a royal commissioner's report, and our interest in the matter is, I think, a greater interest directed at the contents of the report than necessarily any order that flows from it.

HIS HONOUR: What do you mean by any order that flows? Do you mean any declaration?

MR ABBOTT: I am sorry, any declaration that flows from it. That is not to say we are not interested in a declaration, we are.

HIS HONOUR: Well, I am not sure what you mean by that.

MR ABBOTT: I do not want to take - - -

HIS HONOUR: And I am not really inviting you to go into any detail. I perhaps sense what you are saying, but in terms of the ordinary principles that would apply to the granting or refusal of injunctive relief, that seems a more tenuous foundation than for saying, well, if a declaration is made it could offend our interests.

MR ABBOTT: Yes. We do say that, but we say that making a report could also affect our interests if it is received by the Minister and published.

HIS HONOUR: I understand that. It just seems to me it all points up the wisdom of trying - the parties making some sort of an agreement that will at least carry you along for a time where you are not put in a situation of having to act too suddenly.

MR ABBOTT: Can I put this position to your Honour. Assume the reporter made a report which was, let us say, critical of my clients or in some way critical to the ends of interests which they perceived they wanted preserved; the Minister received the report and declined to make a declaration but published the report so that that went into the community. That would be a result, assuming the report to be of that nature which my clients would not like to happen - - -

HIS HONOUR: Yes, I see that.

MR ABBOTT: So in that sense it then could be argued that the point is moot. The Minister has not made a declaration. All you could seek was some sort of Ainsworth declaration which you have not sought.

HIS HONOUR: I see the force of that.

MR ABBOTT: And we are concerned that 30 June is the last day that they are prepared to give us. If they said the reporter is prepared to consider a further two weeks, the matter could possibly go off on the basis of seven days, but at present with her not saying, it will be at least 30 June, and you will get at least seven days from then. They are saying, as I understand it, it will be no later than 30 June and you will get seven days before then, which is 23 June, which merely makes us revisit this matter in a short time. That is our complaint, your Honour.

HIS HONOUR: Yes, I see. Before I ask you to address further I will just see whether the matter is capable of resolution. Do counsel want a moment to talk about this? I do not mind sitting here while you discuss it.

MR GRIFFITH: Thank you, your Honour, but your Honour has pointed out the difficulties about what appropriate order may be sought and one does not know how quickly things will move, but we would submit that it would be appropriate to adjourn this matter sine die and see whether or not this fact of the undertaking to giving seven days notice remains does not resolve it, having regard to the possibility that there might be a result, if not reasons from the Court.

HIS HONOUR: Can you be more precise as to the earliest date upon which the report might be given? It is left a little in the air by saying "towards the end of June".

MR GRIFFITH: Your Honour, it may be that the seven days notice could or could not be given next week, as I understand it, it is just not known.

MR ABBOTT: Or Monday.

MR GRIFFITH: Your Honour, to some extent there is an element of hopefulness that there might be a result out of the Court, if not reasons, which will avoid the necessity of addressing this issue and - - -

HIS HONOUR: As I said earlier, I think that is not the appropriate basis upon which to dispose of the matter.

MR GRIFFITH: Perhaps not, your Honour, but we say there is no real issue to be concerned with until seven days notice is given.

HIS HONOUR: Except, as Mr Abbott says, the parties have to come together and arrangements have to be made for a hearing. I mean, the other way of doing it would be, I suppose, to give a longer notice - 14 days. I cannot really think the machinery of government really would be greatly affected by a notice of motion - - -

MR GRIFFITH: Perhaps if we have a minute or two to seek instructions on 14 days notice.

HIS HONOUR: Before you do, I had better ask Mr Abbott whether that would be acceptable.

MR ABBOTT: Not if the 14 days notice is given on Monday. We are back to square one.

HIS HONOUR: I will ask the Solicitor-General just to see what the position is regarding the length of notice and perhaps some indication that it would not be given in any event before a particular date.

MR GRIFFITH: Your Honour, I think we might need an adjournment because that is my learned friend and his client who will have to answer those questions.

HIS HONOUR: I would have thought so but I am seeing you in this double role at the moment.

MR GRIFFITH: I only have a single role, your Honour, to represent the Minister. So, if somehow I have, by default, I am making these statements, your Honour - but the Minister wants the report. That is the Minister's interests, your Honour, and that is why he seems not very flexible.

HIS HONOUR: I will adjourn for a few minutes to see whether it is possible to resolve the matter. If it is not, then I will deal with it.

MR GRIFFITH: Thank you, your Honour.

AT 3.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.57 PM:

HIS HONOUR: Mr Solicitor.

MR GRIFFITH: Your Honour, we are indebted to the opportunity, I am sorry it took longer than expected, but we have made progress, your Honour. I could continue to speak, I think, for us all. Your Honour, what is desired is that, so far as my learned friend Mr Willheim's client is concerned, there should be release from all undertakings so far as she is concerned and that, your Honour - - -

HIS HONOUR: When you say "desired", do you mean desired on - - -

MR GRIFFITH: It has been indicated as being an undertaking as between counsel, your Honour.

HIS HONOUR: - - - or has been accepted by all parties?

MR GRIFFITH: Accepted, yes, your Honour. Your Honour, in other words, she can report when she is ready, there is no inhibition, your Honour, but I am in the position, your Honour, to indicate that the Minister is able to undertake to keep confidential - I will read this out quickly, your Honour - "undertakes to keep confidential, not finally consider or make a decision as to whether or not to make a declaration under section 10 of the Act until the judgment of the Court or further order, liberty to apply". So, in effect, your Honour, the arrangement is that the report may be made, but the Minister will not take the matter any further until the judgment of the Court.

HIS HONOUR: Is liberty to apply meant to cover the terms of the undertaking as well, Mr Solicitor?

MR GRIFFITH: Your Honour, I suppose, in principle, I never agreed to an open-ended undertaking.

HIS HONOUR: No, I assumed that it had some relationship to the undertaking itself.

MR GRIFFITH: Of course, your Honour, yes. I do not wish to give an indefinite undertaking, your Honour.

HIS HONOUR: Yes, thank you. Mr Abbott?

MR ABBOTT: Your Honour, that would appear to be acceptable. We have come to that result as a result of what fell from your Honour. Your Honour expressed the view about the Minister being - - -

HIS HONOUR: No, I did not express a view.

MR ABBOTT: Sorry, your Honour did not express a view; your Honour made a mention of the Minister.

HIS HONOUR: I may have made some observations.

MR ABBOTT: Made some observations.

HIS HONOUR: Yes.

MR ABBOTT: Yes. And it would seem that this does, in fact, although not wholly preserving the current status quo, preserves a status quo, which will mean that our fears about the point becoming moot will not then occur.

HIS HONOUR: Well, Mr Abbott, I take it, and I will ask other counsel to confirm this - it will not really concern Mr Willheim, if his client is to be released from any undertakings - but what has been said by Solicitor appears on the record and I take it I need do no more than adjourn the application, or am I being asked to dismiss it or give leave to discontinue, or what?

MR ABBOTT: We would make application for costs.

HIS HONOUR: Before we get to the question of costs, what am I to do with the application? Am I to leave it adjourned, or simply dismiss it?

MR ABBOTT: I think, if your Honour could adjourn the application sine die, on the basis of the undertaking proffered. As my learned friend has said, it is not an open-ended undertaking.

HIS HONOUR: The undertaking is really - it is not an undertaking given of the Court, as I understand it, but the Solicitor-General is simply indicating the terms of an undertaking that has been given to your client, or given to the solicitors for your clients.

MR ABBOTT: I must say, I have understood it to be an undertaking to this Court to be recorded.

MR GRIFFITH: Well, just between us is enough. I mean, it holds.

HIS HONOUR: Well, while you are on your feet, you apparently, and on the assumption that there is no objection to the summons being adjourned, had another application in relation to costs.

MR ABBOTT: Yes, your Honour - - -

MR GRIFFITH: .....apply for them, I withdraw the undertaking.

MR ABBOTT: Iwould ask that the issue of costs be adjourned as well in that case, your Honour.

HIS HONOUR: I do not want to pre-judge the issue, but you must be on fairly tenuous ground on the question of costs, must you not, since really the arrangement that has been made by the parties does not go to the terms of the summons at all.

MR ABBOTT: No, but it is made in response to the terms of the summons and because of the terms of the summons, and it was in the absence of being able to achieve anything earlier on that we have spent from the time of the rising of the Court until now.

HIS HONOUR: Very well. I will hear what the Solicitor-General has to say.

MR GRIFFITH: Your Honour, it is my omission to not raise the issue of costs, your Honour, because if I thought for a moment my learned friend would make the application, I would not have offered any undertaking at all.

HIS HONOUR: I think I have made my feelings clear. I do not propose to make any order for costs in relation to the present application.

MR ABBOTT: If your Honour please.

MR GRIFFITH: If your Honour please.

HIS HONOUR: Are you content simply with an order that the summons be adjourned sine die?

MR GRIFFITH: Yes, your Honour, and this undertaking exists as an undertaking between counsel.

HIS HONOUR: The only order that the Court makes is that the summons dated 14 June 1996 be adjourned sine die.

Thank you. The Court will adjourn.

AT 4.02 PM THE MATTER WAS CONCLUDED