Chapman & Ors v Minister for Aboriginal & Torres Strait Islander Affairs & Ors A49/1996 [1997] HCATrans 46 (13 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A49 of 1996

B e t w e e n -

RUTH GALLE CHAPMAN and OTHERS

Plaintiffs

and

THE MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS and OTHERS

Defendants

Application to substitute a defendant

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 13 FEBRUARY 1997, AT 9.31 AM

Copyright in the High Court of Australia

MR S.M. PALYGA: If your Honour pleases, I appear for the applicants. (instructed by Lynch & Meyer)

MR E. WILLHEIM: If your Honour pleases, I appear for the second respondent, Saunders. (instructed by the Australian Government Solicitor). It may assist your Honour if I indicate that no appearance has been filed on behalf of the Minister.

HIS HONOUR: That is understandable in the circumstances and I do not think we need to go through the process of calling the Minister.

MR WILLHEIM: Thank you.

HIS HONOUR: Yes, Mr Palyga, will you just put the formalities in order and give me the documents on which you move the Court for the relief that you seek. I have read the papers, by the way, so I know what this is about.

MR PALYGA: Thank you, your Honour. The document on which we move the Court is an application dated 7 February 1997.

HIS HONOUR: Yes, I have that. And you read your affidavit, do you, in support of the application, your affidavit being sworn 6 December 1996?

MR PALYGA: Yes, I do. Thank you, your Honour.

HIS HONOUR: Very well.

MR PALYGA: I can perhaps indicate to your Honour that I understand from my learned friend that they do not oppose an order in terms of paragraphs 1 and 2 of the application, and I further understand that my learned friend, whilst not entering an appearance for the Minister, does have instructions from the Minister and from the proposed additional respondent.

HIS HONOUR: Yes, that is so. I think I have seen in correspondence, Mr Willheim, that the Australian Government Solicitor will be entering an appearance for Mr Tickner, is that correct?

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

HIS HONOUR: And is Mr Tickner aware of these proceedings before the Court today?

MR WILLHEIM: He is aware of the proceedings in general, your Honour. I do not know that he is aware of the particular proceedings today but he is aware that it is proposed that he be joined as a respondent.

HIS HONOUR: You will be appearing for him in due course when he is joined as a party.

MR WILLHEIM: That is so, your Honour.

HIS HONOUR: There is no reason for me to give him an opportunity to be heard in resistance to this application? Your understanding is that he consents to the proceedings - - -

MR WILLHEIM: I have instructions, your Honour, to indicate to your Honour that he does consent.

HIS HONOUR: Yes, thank you very much. There was a suggestion in the correspondence that a further order might be made that the matter be remitted to the Federal Court of Australia. A proceeding of this kind would not ordinarily now be tried at first instance in this Court. Is there any reason why that order should not now be made so that time and cost can be saved?

MR PALYGA: Your Honour, I have had a discussion with my learned friend yesterday about this issue and my learned friend suggests and I agree that that is a matter that perhaps ought to await the filing of an appearance by Mr Tickner. As we understand it, given that it is proposed for both Mr Tickner and Ms Saunders, for whom my friend appears, will consent to that application and that can be done on a written consent document.

HIS HONOUR: Yes, very well. If that is the course that the parties propose that would be acceptable to me. Is there anything else that you wish to say in addition to what you have put before the Court, Mr Palyga, or not?

MR PALYGA: No, your Honour.

HIS HONOUR: It is just a little unfortunate that because of the wording of our Rules this matter could not have been dealt with by a consent order but I will make a comment about that so that the question will be looked at by the Court.

MR PALYGA: Thank you very much, your Honour.

HIS HONOUR: Yes. Is there anything you wish to say, Mr Willheim?

MR WILLHEIM: No, your Honour, thank you.

HIS HONOUR: On 16 October 1996, the plaintiffs caused a writ of summons to be issued out of the Adelaide Registry of this Court. The summons named the Minister for Aboriginal and Torres Strait Islander Affairs as the first defendant and Professor Cheryl Saunders as the second defendant. The writ claimed damages for negligence and breach of statutory duty by the defendants.

The statement of claim filed with the summons raises various allegations against the defendants arising out of the first inquiry under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). The inquiry was one into the proposed construction of a bridge to Hindmarsh Island in South Australia. Some of the background to the claim may be found in this Court's recent decision in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 70 ALJR 743 and in the cases there referred to (at 762-763) . It is unnecessary for present purposes to detail what there occurred.

On 15 November 1996, the Australian Government Solicitor wrote to the solicitors for the plaintiffs indicating that it had instructions to act for Professor Saunders. However, in respect of the Minister so named, it was suggested that he was not a legal entity against whom an order for damages could be enforced by the plaintiffs. Present and future occupants of the office were not, so it was asserted, liable for the alleged torts of a previous office holder.

There followed further correspondence which has been placed before me today from which it emerged that the name of the Minister at the relevant time, the Honourable Robert Edward Tickner, should be substituted for the Minister as named as the first defendant. The Australian Government Solicitor confirmed that it would have instructions in those circumstances to consent to the replacement of the name and that it would then enter an appearance on behalf of Mr Tickner. I have been informed today that Mr Tickner is aware of the application now before the Court.

Professor Saunders consents to the amendment sought. Eventually, the plaintiffs did so as well. Clearly, such an amendment, made with the consent of all parties, should have been capable of being made by consent order filed in the Registry with supporting affidavits, as at one stage the Australian Government Solicitor proposed. However, the relevant rule, Order 44 rule 23 of the High Court Rules, titled "Consent orders", reads as follows:

"(1) A written consent of the parties to a proceeding, or their solicitors, to the making of an order in the proceeding may be filed in the Registry in which the proceeding is pending.

(2) Notwithstanding anything contained in these Rules, upon the written consent being so filed, the Registrar shall bring the matter before a Justice who, if he thinks fit, may, without any other application being made to him, direct the Registrar to draw up, sign and seal an order in accordance with the terms of the consent.

(3) The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Justice."

When I was informed, as duty Judge, of this application I asked whether the matter could not proceed by way of consent order. The Registrar pointed to the fact that, as at this time and before an order joining Mr Tickner, he is not, within r 23(1), a party to the proceedings who can consent. This is obviously a defect in the Rules. It should have the attention of the Rule Committee of the Court so that it can be made clear that "the parties" includes a proposed or prospective party who consents to having an order made affecting such party.

A question arose as to whether or not an order should be made remitting the proceedings to the Federal Court of Australia, as I am presently minded to think they should be. However, I am told that the parties have agreed that that matter can be attended to by consent order once Mr Tickner is joined.

The orders which I therefore make are those which are sought in the application, namely:

1. That the name of the Minister for Aboriginal and Torres Strait Island Affairs be struck out of the Writ and Statement of Claim, and that the name of Robert Edward Tickner be added; and

2. That each party bear its own costs in relation to this application, and the preparation and service of the amended Writ and Statement of Claim.

I think they are the only two orders I need to make and I now make them. Is there anything else, Mr Palyga?

MR PALYGA: No, your Honour, and thank you for those helpful comments.

HIS HONOUR: Thank you. Anything else, Mr Willheim?

MR WILLHEIM: No, thank you, your Honour.

HIS HONOUR: The Court will now adjourn.

AT 9.41 AM THE MATTER WAS CONCLUDED