Hollier v Australian Maritime Safety Authority & Ors M72/1998 [1999] HCATrans 318 (10 September 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M27 of 1998

B e t w e e n -

WILLIAM EDWARD HOLLIER for the Holliers of The Bass Strait Islands

Applicant

and

REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

THE STATE OF VICTORIA

Third Respondent

THE STATE OF TASMANIA

Fourth Respondent

Application for special leave to appeal

Office of the Registry

Melbourne No M91 of 1998

B e t w e e n -

WILLIAM HOLLIER and for THE ENGEN INSTITUTE and for THE LIGHTHOUSE TRUST

Applicants

and

THE HONOURABLE PETER REITH, MINISTER FOR WORKPLACE RELATIONS AND SMALL BUSINESS

Respondent

Application for leave to appeal

Office of the Registry

Melbourne No M72 of 1998

B e t w e e n -

WILLIAM HOLLIER and THE ENGEN INSTITUTE

Applicant

and

AUSTRALIAN MARITIME SAFETY AUTHORITY

First Respondent

STATE OF TASMANIA

Second Respondent

MINISTER FOR WORKPLACE RELATIONS

Third Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 1999, AT 12.21 PM

Copyright in the High Court of Australia

____________________

MR W.E. HOLLIER appeared in person.

MR J.B.R. BEACH: If the Court pleases, I appear in the third matter for the Australian Maritime Safety Authority. (instructed by Minter Ellison)

MR M.K. MOSHINSKY: If the Court pleases, in matter M27 of 1998 I appear for the first respondent simply to submit to the order of the Court. I appear for the second and third respondents. In matter M91 of 1998 I appear for the respondent. In matter M72 of 1998 I appear for the third respondent. (instructed by the Australian Government Solicitor)

GUMMOW J: In matter No M91 of 1998 you appear for the respondent?

MR MOSHINSKY: Yes, your Honour.

GUMMOW J: The title should be amended so that it simply reads the Honourable Peter Reith, should it not?

MR MOSHINSKY: Yes, if your Honour pleases.

GUMMOW J: We so order.

In matter No M27 of 1998, that is the Native Title matter, the Court holds a certificate from the solicitors for the Tribunal informing the Court that the first respondent does not intend to make submissions and will abide by any decision of the Court save as to costs.

MR W.C.R. BALE, QC, Solicitor-General for the State of Tasmania: May it please the Court, I appear for the State of Tasmania as respondent in the first and third matters. (instructed by the Office of the Solicitor-General)

KIRBY J: What has happened about the dress, Mr Solicitor? What has happened.

MR BALE: I think, your Honour, we probably led the charge. In Tasmania and Western Australia now wigs are not used in the civil jurisdiction and by direction of the former Chief Justice, Sir Gerard Brennan, and confirmed by the present Chief Justice, that is a practice that we accordingly follow in this Court.

KIRBY J: You know when this happened in Ghana during the time of "Osagyfo" Nkrumah the judges refused to see counsel. However, I suppose we can see you.

MR BALE: I am obliged, your Honour.

GUMMOW J: Yes. Now, Mr Hollier, we will hear you first on the first matter in the list, that is the Native Title Tribunal matter which, in a way, stands by itself. Then we will hear you in the other two matters, that is the matter arising in which you seek leave to appeal from Justice Hayne's decision and in which you seek special leave from the Full Court of the Federal Court. So, if you could address us first, bearing in mind the time limit, on the native title matter.

MR HOLLIER: If it please the Court, I would like to perhaps address the question of the likelihood of success were this granted. I think that is also relevant to the second ground that I have put forward.

I have provided a number of extracts from legal authorities and they have been marked with the sections that I will be referring to or alluding to very briefly.

KIRBY J: Could you keep your voice up because it is really quite a long distance over there to you, and it is hard to hear you. I want to hear it all.

MR HOLLIER: These extracts have also been numbered in more or less the sequence that I will be referring to them. So if I could first of all take the Court to Mabo [2], just briefly to establish, if you like, a basis from which I will proceed. The extracts refer to the acquisition of territory being distinct from the acquisition of land and of tenure, facts now well established. Also to the feudal basis of land tenure within Australia and there are numerous references throughout Mabo [2] to the Privy Council ruling in Amodu Tijani. In that ruling it refers to native title being recognised by the common law and draws attention, as you would well know, to the variable nature of native title. It also refers to the fact that it is a community-held title and individuals have usufructuary rights.

GUMMOW J: I think we are seized of that much, Mr Hollier, but I think what you have to meet is the substance of the reasoning in Justice Goldberg's decision at pages 32 through to 35 of the application book.

MR HOLLIER: Justice Goldberg was not in the native title matter.

GUMMOW J: Have you got your application book there?

MR HOLLIER: Yes.

GUMMOW J: His Honour gave reasons as to - his reasons for the Full Court saying, granted what you are putting to us, there are other reasons why you cannot bring yourself within this Act.

MR HOLLIER: Very briefly, I put forward essentially this in not such detail, but this same material, to the Native Title Tribunal. Originally it was the intention purely of trying to establish the fact that I had some rights effectively granted by the Crown, I maintain, and wanting that to be registered in some way so that it would be taken note of if there was some claim made on the particular area or territory concerned.

The case that I put forward was essentially completely ignored. There were fictitious grounds that were attributed to me put forward and knocked back, both in the original assessment, also in the review of that by the presidential member. This happened again before the single judge and essentially was reiterated. I would like, with the leave of the Court, to - - -

KIRBY J: But how could you possibly be regarded as an indigenous Australian? I mean you are a person self-evidently of European descent and the indigenous people of this country are really not to be trifled with by being identified - - -

MR HOLLIER: I think a lot of the problems that I run into is that I have been, if you like, categorised as someone whose objective is to try and destroy the Native Title Act. Let me assure you that is not the case.

KIRBY J: It may not be your motive, but - - -

MR HOLLIER: I have a house and I, in fact the house, when I went overseas, to which I let to Aboriginal friends of mine, who looked after that house and rented it for some five or six years.

KIRBY J: Nobody is questioning your motive. It is a question of whether you can fit in with an Act which is intended for indigenous people of Australia.

GUMMOW J: And so stated, surely.

MR HOLLIER: May I just say the essence of the argument that I am saying is that there are three parts to the Native Title Act. The first part is a process whereby rights which I maintain are inherently a seignorial right, that that right is established by prescription, by proof of time immemorial use. That is one basis on which that same right can be acquired. Then there is the section of the Act, the land....., which says that where it can be shown that there was in fact a title and the tile has been lost, there should be compensation. I am not asking for access or even claim to have access to either of those two aspects of the Act. But the third aspect of the Act is that it sets up a registry. Just like there is a registry of land title and motor vehicles, there is a registry of marriages, of deaths; it sets up a registry and via that registry there are enacted various administrative and perhaps even statute procedures that give comfort and protection to a person who has a minor right in land.

Now, what I have claimed from the beginning is that that right, the right to the protection, if one has such a minor right in land, should be extended to all people.

GUMMOW J: But that is not what the Act does. That is what the Full Court held and you have to persuade us that the Full Court was wrong. And you will not do that simply by asserting it. These are fundamental legal questions.

MR HOLLIER: These are fundamental legal questions and as I understand it, there is a preamble and definition within the Act of an Aboriginal Australian as a person being someone who is in Australia prior to British occupation, which deals fairly clearly with the notion that it is a person who has a time immemorial claim. There is also another blanket, if you like, global qualifier in the Act, that nothing in the Act is contrary to the Racial Discrimination Act. Now, were those two aspects of the Act directly in conflict with each other, then I think that what happens is that the Court would make a decision as to what is the appropriate interpretation of the Act. I believe that the definition that is given of Aboriginal Australians, and that the Act applies only to Aboriginal Australians, should really only be interpreted as meaning the basis on which people can claim under the first two aspects of the Act, claim by prescription a immemorial use that seignorial right.

As we can show a manorial right, we claim to be able to show a manorial right - if you like, not even in fact a manorial right, it does not need to be that conformed, to the narrowest form of a seignorial right - but certainly we claim to be able to show that there is a seigneury involved and that, as such, we ought to be able to have that protected in the same way as a seignorial right that is derived by prescription. So the Act, which I believe is the treaty for human rights has been enacted into Australia and should be therefore taken as prima facie correct, and it says quite clearly access to all laws must be available to all people. I am well aware of the fact that there is a proviso in there, that where there is a special case, where there has been some injustice, a measure in legislation that in fact provides discrimination, if you like, positive discrimination to neutralise a prior discrimination, should be seen as that special measure and not contrary to the Act.

When you have the right to claim under this well-accepted ground that there was an acquisition of territory which did not imply an acquisition of land rights or local government, under that measure, quite clearly, I would not qualify and I do not claim, I have never claimed, to qualify under those grounds.

Given the fact that we have a seignorial right which, if I was allowed to go through these matter briefly I think I can illustrate quite clearly to the Court that we do have that right, then we cannot register it in a conventional land registry. The process of government, as we have seen acting since 1995 or at least since 1997, have in fact put us through great stress and strain where, had we had the same comfort to other holders of seignorial title or seignorial rights, then we would not be put through this stress. That, in essence, is what we have been trying to establish throughout.

The matters that we put forward to the case - and I can you if we went in more detail - that it was put in letters to the presidential member, that it was reiterated time and time again. However, our case as presented has not been judged on its merits. It has been completely misconstrued. We have had completely different words, objectives, attributed to myself which I have never said, and the judgment has been delivered on a case that we have not presented. So I would say that the decision was erroneous on that ground. It cannot be a decision that does not address the matters that were put forward to the court.

GUMMOW J: I keep asking you what fundamental legal propositions did the Full Court get wrong as to the operation of the Native Title Act?

MR HOLLIER: There is a formal error, I believe, in the decision.

GUMMOW J: Let us get down to fundamental propositions. What fundamental error did they make in misconstruing the Native Title Act in accordance with what appears to be its ordinary terms, namely terms which would not include its particular remedies and advantages utilised by non-indigenous Australians such as yourself.

MR HOLLIER: They claim it has been decided by the High Court and I think there is a clearly technical error that it has not. But the Federal Court ruling essentially says that not being a person of indigenous birth it is not possible to have any comfort under the Native Title Act and, as I said - - -

GUMMOW J: Now, why is that wrong?

MR HOLLIER: It is wrong because, quite clearly, the Racial Discrimination Act says that all people should have all access to all - - -

GUMMOW J: They explain that too.

MR HOLLIER: Yes. They say there a special measure provision applies. What I am saying is that if that special measure provision does justly apply to the first part of the Act, in proving a native title, it does justly apply to the second part of the Act in seeking compensation for loss of native title, but the special measure provision and argument cannot justly be put forward for a person who merely seeks to be able to have a seignorial right put on the register so that they have the same comfort under law and the same processes of law for protection.

I am not claiming, and never have claimed, that we could have a right derived on the same basis as Aboriginal people. But I am claiming that what they have is a seignorial right, that that is the essence of what native title is - - -

KIRBY J: Yes, but the Full Court, both in answer to your claim in relation to that Act and in respect of your objection raising the Racial Discrimination Act pointed out that, both as a matter of general legal principle and by the terms of the Native Title Act, the Act is not conferring rights, it is simply providing machinery in respect of the situation where those rights are possessed and they can only be possessed by indigenous Australians. The starting point of the journey to secure them - to secure registration under the Act is that you are an indigenous Australian who possesses those rights.

MR HOLLIER: With respect, your Honour, the Act establishes the Tribunal.

KIRBY J: That is true, but the rights are not established by the Act, they are not even established by the common law. The common law recognises them. They are anterior to the common law.

MR HOLLIER: Yes. This comes exactly to the issue that in fact what we are claiming in the seignorial right is the same thing. The basis of seigneury is very clearly established. You know, William I granted equal representation under the law to Anglo-Saxons and to Norman people and, as such, the common law courts recognised that where there was a jurisdiction - - -

KIRBY J: William I was one sort of conqueror, but this is an Act to deal with people who came to this land. It has nothing to do with what the Conqueror did in England. We are talking about what has been the redress given for the suggested conquest of Australia by the people who came 600, 700 years later. It has nothing to do with it.

MR HOLLIER: Your Honour, in the material that I have got here, there was an English component of law was brought to this country. I mean it is quite clearly established in Mabo [1], Mabo[2] and many other court cases that matters - that the English common law was brought to Australia by settlement. That was in fact updated by legislation to say, as of 50 years later in 1828, the law of Australia was the law of England at that time, the common law of Australia. It is quite true that there can be a divergence between the common law of Australia and the common law of England as of that date. We would maintain, do maintain, in fact I think we can prove it quite conclusively, that there was a grant by Admiralty - it is also been shown in the Seas and Submerged Lands Act - that the territorial waters and they deal with the fact that there is an international - I mean, if I could have the time - - -

KIRBY J: I know you are trying to defend your position, Mr Hollier, and I think you have done a pretty fair job trying to put your written submissions in order, but I have to tell you this argument is absolutely hopeless. It does not even get off first base. It is hopeless. I am talking only about the present application. It is really misconceived.

MR HOLLIER: If I might say, it seems to me the essence or the nub of the matter is: does the Racial Discrimination Act apply to enactment, legislation, where clearly one part of that legislation - I mean, if you could accept for the moment that what happens is that the seigneury says effectively you have control and jurisdiction of an area.

Now, within that area, the law that is applied is principally the determination of who should live on what particular allotments et cetera, other minder right to use as an anchorage and the ability to fish and various things like that. Lighthouses were quite clearly established under Admiralty. They were a Crown grant. They did not need to be registered. They did not need to pass under the signed manual. Deal Island was - a survey was carried out by Admiralty in 1842 and recommendations made that the Kent Group lighthouse should be constructed. When that did not happen and in 1845, 399 people lost their lives in the "Cataraqui", which is still the greatest civil disaster in this country. Within three months constructions started on Deal Island lighthouse. There was within - the House of Commons asked for all the documents to be tabled. There was, in fact, an inquiry and the Secretary of State, who was Lord Grey at the time, reprimanded - - -

KIRBY J: This really has nothing to do with your case, Mr Hollier. I am sorry. You are an intelligent man and you are in a pickle and you are entitled to have your case, but this is irrelevant.

MR HOLLIER: Your Honour - - -

KIRBY J: I am not being rude to you, but I would like you to focus on anything you want to say that is relevant to your case.

MR HOLLIER: I am not seeing - when you say, your Honour, that it is irrelevant, could I ask the Court to give me what your preliminary view of the matter is, so that I might address and tackle - - -

GUMMOW J: The preliminary view of the matter is that the Full Court was correct in all respects in the matters of law.

MR HOLLIER: Given the fact that there could be a right of exactly the same type, a legal right that is of exactly the same type, the process whereby I purchase a car might be that I construct it, that I inherit it, that I purchase it. But when I have title to a car it is exactly the same, regardless of by what means I have derived such title. Given the fact that I can have exactly the same legal right as native title acquired by a different avenue, then what I am saying is that the right to have that protected through the processes of the law, to have it put on the registry so that a government department is required to discover it before they take an action that would disadvantage me, that I maintain is one small aspect of the Native Title Act that cannot be considered a special measure.

GUMMOW J: Yes, thank you, Mr Hollier.

There is no need to call on you gentlemen in relation to M27 of 1998.

There is no reason to doubt the correctness of the fundamental legal propositions expounded by the Full Court of the Federal Court in this matter. Indeed, we regard what was said as correct. Accordingly special leave is refused.

MR MOSHINSKY: I seek an order for costs, your Honours.

GUMMOW J: That is in favour of?

MR MOSHINSKY: For my part, the second and third respondents.

GUMMOW J: That is the Commonwealth and the State of Victoria, is that right?

MR MOSHINSKY: Yes, your Honour.

MR BALE: I, likewise, for the State of Tasmania, may it please your Honours.

GUMMOW J: Yes, Mr Solicitor. I do not think you can resist that order for costs application, Mr Hollier. There has to be an order that that application for special leave is refused with costs in favour of the second, third and fourth respondents. The first respondent, it will be remembered, submitted.

Now, we will hear you on the other two matters which are related. You might care to deal with them together, Mr Hollier.

MR HOLLIER: Could I resist that order of costs? I would like to say that I have said throughout that I have not been listened to. I have presented an extensive case here to quite clearly show - I might point out that in the Native Title Act the word "senior" is put in quotes.

GUMMOW J: We cannot go back over that, Mr Hollier. You have to accept at this stage that you have failed here and costs ordinarily follow the event here.

MR HOLLIER: Is there not a principle generally that one need to be heard in Court?

GUMMOW J: Of course there is, but you begin with the proposition that costs follow the event here in this Court. Now, why should they not, you having failed?

MR HOLLIER: Because, your Honour, I maintain that the event has not been allowed to happen. I have not been heard. I give this - - -

GUMMOW J: You have been given 20 minutes, Mr Hollier, which is as much as any litigant in this nation obtains in this Court.

MR HOLLIER: Yes, excuse me, your Honour, except that I maintain that those 20 minutes were largely not allowed me to put forward my case but in which your view of the matter was put to me.

GUMMOW J: No, we were giving you an opportunity to advance propositions to meet the legal difficulties in your path which occurred to us, having read the written materials, and that is a primary purpose of that 20 minutes.

MR HOLLIER: Your Honour, I think that there is a situation where it is not believed by the courts that there is a legal situation where such a right identical to native title can exist.

KIRBY J: I think you are going back over the merits of the matter. If you wanted to say something specific to the costs - - -

MR HOLLIER: Yes, I believe that I ought to have a right to be heard and put forward such a case - - -

KIRBY J: As Justice Gummow has pointed out, you have been heard. Were you the most powerful and well lawyered person in the nation, you would be heard fore the same period of time, 20 minutes.

GUMMOW J: And with questions, as you may have heard this morning.

MR HOLLIER: Yes, your Honour.

KIRBY J: You see, nothing is worse than a court where the Judges sit totally silent. It is very hard for the person or the barrister, lawyer, to be able to put their case then. That is the whole point. It is a dialogue. We put to you our impression, you have a right to be heard, and that is the way the system works. Take it from me, it is terrible where a judge is silent. If you like, in the next case we will be totally silent.

MR HOLLIER: Justice Kirby, with respect, I know you are a champion of human rights. There is a situation where all people must necessarily have an attitude. We cannot approach any matter without an attitude. It is a case of the law of this land that a person when on trial, if it is before a jury, they have a right that the material is not discussed previously before the jury get to consider that, so that they are not prejudiced.

KIRBY J: That is not how special leave cases are heard. We receive the documents and we read them.

GUMMOW J: In many cases, you would have no oral argument. In many countries there is no oral argument at the highest level. There is none in Canada, none in the House of Lords.

KIRBY J: None in the United States.

MR HOLLIER: In this matter that I have brought forward what has happened today here is again once more a repetition of what has happened at every single stage.

GUMMOW J: Please explain to us why there should be a variation from the ordinary course of events which makes costs follow the event?

MR HOLLIER: Because it is fundamental. It is fundamental, it is a right that issues directly from the Crown for there to be justice and the Court - - -

GUMMOW J: It issues from the Constitution.

MR HOLLIER: Yes, all right. What is it, every man has a right to be heard. Now, the Court does not have a right to prescribe to me the matters that I can put before them. I have not been able to establish or given at any stage an opportunity to in fact establish the legal proposition that - - -

KIRBY J: I think you are going over your argument. You have been heard, as every litigant has, and I think the order that was made ought to be confirmed and we should get on with the next case.

GUMMOW J: So that order, as indicated, is made. That is in relation to M27.

MR HOLLIER: I would feel most heartened to think that at some stage you might read the material.

KIRBY J: We have the material and have read it.

GUMMOW J: We do a lot of work before we come on the Bench.

MR HOLLIER: I have done an awful lot of work too in this matter.

GUMMOW J: Now, will you address us on the other two matters, that is to say the application for leave under section 34 of the Judiciary Act in respect of Justice Hayne's decision and the application for special leave to appeal from the decision of the Full Court of the Federal Court.

MR HOLLIER: Yes, your Honour. If I might reanimate some of those same issues but in a different context.

Your Honour, the decision that Justice Hayne made in this case I maintain is in error because, first of all, I would maintain that the High Court in this country has adopted the function and role of the Privy Council. It deals with the writs of mandamus, it deals with matters that came from the King in Council. There was a civil war, there was an Act of Rights, Bill of Rights. It has long been held before that enactment in the common law that there is an obligation for the Crown to grant justice.

A Minister of the Crown represents directly Her Majesty. A Minister of the Crown, if I might refer to the notes No 28 and just read from those, for the exercise of a prerogative power the prior authority of Parliament is not required. Parliament may criticise a Minister. Parliament may - - -

GUMMOW J: Where do you say Justice Hayne misunderstood any legal principle?

MR HOLLIER: I maintain that the Minister, when in fact he granted - there was a grant - when he granted there be an inquiry, it was a quasi-judicial right - that the Minister within his portfolio was in fact, in making that decision, making a grant. That grant cannot be abrogated from unless by Parliament. What has happened quite clearly - and there was evidence put to the Minister - was that the grant was not conducted following natural justice or on the terms.

GUMMOW J: This title registration has taken place, has it not? Has there not now been a registration by the Tasmanian Land Titles Office?

MR HOLLIER: I am sorry, which matter are we dealing with? I thought we were dealing with the Honourable Mr Reith. That was the matter that I was told would be second in the list.

GUMMOW J: Well, it is said against you in the written submissions that relief against Mr Reith would now be relevantly futile because the register has been perfected under the law of Tasmania.

MR HOLLIER: In the matters that I had here, having brought to my notice the fact that there is quite possibly a defect in the title. The title was created in 1990 by Tasmania. The Constitution quite clearly says that the Commonwealth has powers of lighthouses. As I would have been able to - - -

GUMMOW J: Concurrent power, not exclusive power.

MR HOLLIER: It has the superior power as shown in the Tasmanian Dam Case. What is more, it is quite clear that Deal Island was an incident to international navigation into foreign affairs. It is classified under the four part classification of lighthouses. There are harbour lights, municipal; there are lights that are coastal within a State; there are lights on the border of a State which are deemed to be inter-colonial, interstate; and there are lights which are also classified as being adjuncts to international navigation. Deal Island, prior to it being constructed, there was an agreement between the then two colonies, New South Wales and Tasmania, to share the costs. As I would like to point out, and the High Court has pointed out, because after the loss of 399 lives and the inquiry by the House of Commons and the admonition of the governor for not acting on - - -

GUMMOW J: As Justice Kirby put to you before, I really do not think what the House of Commons did 150 years ago has got much to do with the immediate problem of demonstrating error on the part of Justice Hayne and error on the part of the Full Court of the Federal Court.

MR HOLLIER: Yes, I am sorry, I am losing my way a little bit. Can I put, your Honour - - -

GUMMOW J: It has to get a bit focused, I think.

MR HOLLIER: Yes. There are perhaps a number of grounds. One, I would maintain that the court had in fact a duty to see that justice could not be sham justice, a matter that was ruled on quite recently regarding the situation of the public service. I maintain that the court had an obligation to see that that happened. Another ground is I maintain that the Minister in fact is required, because of the fact that Australia is a signatory to the United Nations SOLAS - Safety of Life at Sea - there is in the Navigation Act, the Lighthouse Act, various other acts, implementations of the terms of that treaty and, consequently, the Minister is not legally able to, based on submissions made by the Commonwealth and also by the State of Tasmania to the 1983 review by the Commonwealth Parliament of lighthouses, which says quite clearly the importance of Deal Island, the continuing importance of Deal Island as a lighthouse.

Now, I maintain that there is an international obligation under that treaty to provide sea safety services. There has, in fact, been a very clear instance of this. Since we were forcibly removed prior to judgment in the Full Court, and after an undertaking via the Maritime Safety Authority that they would take no action to remove us from the Island until there was a judgment, but we were in fact forcibly removed. My wife had eight men in a helicopter descend on her and my youngest daughter and forcibly remove them from the Island. Since that act, I visited the Minister in Tasmania some three to four days after he was elected and told him that we had been called by the National Safety Council in Canberra for maritime search to participate in the search for the re-enactment of the "Norfolk" that went missing when it was on its way to Sydney before re-enacting the circumnavigation of Tasmania. I told him that there was no sea safety and that we offered to provide it, even via radio relay at no cost, pending further action. That offer has not been taken up.

There was then - on 27 December, we were called by the National Sea Safety Centre, to aid and help in the search and rescue of yachts in the Sydney Hobart Yacht Race. There have been seven fatalities. It is a matter before the coroner. The Minister has an obligation under international treaty to keep sea safety functions going, and those sea safety functions were defined by a parliamentary committee 375 of 1983. They include keeping radio contact, a person to be able to offer medical aid. In 1994 we evacuated three emergency cases in three days, one with a fractured skull.

GUMMOW J: Mr Hollier, you may be critical of what I am about to do but I am inviting you to focus on any error of law in the approach of Justice Hayne and then to explain error of law in the Full Court, bearing in mind that the Full Court dismissed an appeal from Justice Sundberg and that Justice Sundberg's finding - his decision turned significantly upon questions of fact and that we would not ordinarily get into questions of fact at this level.

To reiterate, your Honour, I maintain that there is a requirement of the court when they are aware that there is sham justice, and it was proven in the documents that are put forward. The ruling says, essentially, there was no original obligation on the Minister to provide an inquiry and then, even though the inquiry was a sham, the fact of the matter is he worked on, first of all, we have to catch the duty. Right? If I am to give you mandamus, I have to catch a duty, to a certain extent, is the terms. I might say I was given every opportunity to present a case before Justice Hayne.

What I am saying is that there are laws that follow process and procedure and works by clockwork, like a machine. The common law works that way. And yet, what happens - - -

GUMMOW J: It does not work like a machine at all.

MR HOLLIER: Supposedly, in theory, at least.

GUMMOW J: No, not in theory either. It determines the particular case on the particular evidence. It is very much bespoken justice. It speaks to the particular case, the particular record. Maybe in some totalitarian systems it works like clockwork, but that is a different matter.

MR HOLLIER: The distinction has been made between Roman law and the common law along those lines. However, in terms of prerogative, which means directly to address what comes before, the only final consideration is not a matter of process, the only final consideration is has justice been done. Now, mandamus comes directly from the powers of the Privy Council that have been taken on by this Court.

GUMMOW J: They are not taken on by this Court; they are conferred by section 75(v) of the Constitution.

MR HOLLIER: Yes, right. They were, if you like writs from the Crown that elsewhere held by the Privy Council and the Privy Council sits in a situation where the commitment or the obligation of the Crown to provide justice is directly addressed through the judiciary council, the Judicial Committee of the Privy Council. What I am saying is that I believe that in this country there is a similar obligation that justice must be provided. In this instance, it was quite clear that there was a sham, that the results had been written by the party to whom, in some part - the party in which there was to be inquiry. The inquiry did not even allow us to present a case. It did not address the material matters that were supposed to be addressed.

So there was the sham inquiry. Justice Hayne took the fact that he was unable to ascertain a specific duty. What I am trying to animate the Court now is to say that there was a specific duty and when I addressed Justice Hayne I raised the fact - I raised the matter that the Minister had an obligation to provide sea safety and that I feared that were I removed from the Island, sea safety services would be removed and if that were to happen that that would constitute, you know, Australia failing to meet its international obligations. That has subsequently come about.

So where Justice Hayne originally said a duty was not to be found, I believe that a duty of the Minister to provide those services - and, in fact, that is the whole purpose why we were appointed to operate from Deal Island - that a duty of the Minister was clearly evident and has become all the more clearly evident since the loss of six lives. So those are the matters in argument I put to the Court.

GUMMOW J: What do you say about the Full Court decision?

MR HOLLIER: Sorry?

GUMMOW J: The Full Court of the Federal Court. I raised it with you some minutes ago. You were invited to deal with both matters.

MR HOLLIER: This is moving on to the - is that it?

GUMMOW J: Yes.

MR HOLLIER: Is there a right of reply or are we doing all of them in succession?

GUMMOW J: As we indicated at the outset, we wished to hear you on the two matters together. That is why I raised with you some minutes ago the significance of the factual findings of Justice Sundberg.

MR HOLLIER: I see. What has happened in the situation with Justice Sundberg - I have put before the Court also the first 13 pages of the transcript. The first time I appeared before Justice Sundberg was to seek an injunction, an injunction to stop us being removed from the Island while the matter was heard. During that matter the first words he spoke to me were to yell at me. He raised his voice, "Stay still." "Don't move from the lecturn." "Pay attention and look at me when you speak." "Don't speak until I speak to you." That is recorded in the transcript. It is not a fine, impartial way to approach any matter.

GUMMOW J: You agitated these matters in the Full Court?

MR HOLLIER: In the Full Court we put forward, I believe, a number of very sound grounds.

GUMMOW J: You had counsel in the Full Court, did you not?

MR HOLLIER: In the Full Court we had counsel, yes. The way the process of law works in this country is if I put forward - and I am saying it probably works in the same way in other countries, and I would hope at the beginning of this third millennium there could be some change - if a party puts forward a case and there is an alternative, two arguments put before the court, and a decision made, there is no record of what we submitted to the court in any of these cases.

GUMMOW J: I am sorry, are you saying there was no transcript?

MR HOLLIER: No, there is a transcript, but I am sure your Honours would not have read the entire transcript of the hearings in the native title and of the Full Court or of the directions hearings with Justice Sundberg and Justice - - -

GUMMOW J: Do not begin to trifle, Mr Hollier.

MR HOLLIER: So the matter that comes forward on appeal is that we cannot reanimate the argument. We have to address - you come into the court having read, if you like, the decision of the judge, which if it transcribes and represents only the argument of, in this instance, the government, what happens is that all arguments that we have put forward at each level have been left behind and the argument of the government has been adopted by the Court and brought forward. So you get a situation of compounding imbalance.

It would be far better if the process were such where we could have a right to have a recorded argument that would in fact go into the official record and would have to be read at each stage. What we have here is a situation where, when I first appeared before Justice Sundberg, I was derided before I had had an opportunity to do any more other than introduce myself. He then allowed counsel for the other party to advise me. The advice that I was given - - -

GUMMOW J: What I am asking, Mr Hollier, is were these matters agitated by your counsel in the Full Court? In other words, was it said that you had been denied procedural fairness at the trial?

MR HOLLIER: Of course, your Honour. Of course, your Honour, as always.

GUMMOW J: The Full Court dealt with that?

MR HOLLIER: The Full Court made a decision, right, and essentially what actually transpired was that we were told to go to trial in 90 days. We sought discovery of material. That material was delivered on the 87th day.

GUMMOW J: Yes, there was a great dispute about discovery, we know that.

MR HOLLIER: There was this much paper. I spent all day in the witness box, went home at night and had to go through material that I had never seen before. I had a situation where he knew from the outset that the matter had to do with estoppel. Fundamental to estoppel was the fact that there is no written document. Fundamental to estoppel is the need for discovery. There is, I believe - Knott v Knott - some requirements when there is an unrepresented party. We were not - in fact we asked - we asked on two occasions for the court during directions hearings to have the Maritime Safety Authority immediately deliver the documents to us. That was not done. The court erred in not providing us with an opportunity - the court erred in not providing any opportunity to obtain the material and present a case. I have not been heard at all on that matter.

Having no opportunity to receive the material and prepare it, and consequently - we had a barrister - the barrister who represented us in - we have limited means. We had an arrangement whereby on a partial payment of fees, a barrister would represent us. He was being married. He was on his honeymoon at the date that Justice Sundberg insisted the matter go ahead. He said that the matter should proceed because we had made a bargain. In a bargain there has to be something given by both sides. They admit - in those first few pages of the transcript of the first directions hearing it is admitted that there is a 90-day notice requirement and that the Maritime Safety Authority would wait 90 days. When Justice Sundberg then asked me to step aside and for Mr Beach to advise me on what the outcome would be, I was assured by Mr Beach that at the end of 90 days, if it did not go to trial, we would come back and that we would be able to seek it on similar grounds.

Now, having some experience with the Federal Court in the native title matter, if a party was not ready to proceed, they were allowed to ask to stand down. The only reason that we were not prepared to proceed was because despite asking in January, and in February twice, in directions hearings that in fact the discovery material should be delivered, no such order was given. We were then in a situation where we were under - the material that came was very important. However, I had not time to prepare it, no opportunity to get counsel, right, and basically I was not in a position to be able to put forward a case. I mean, I have done an awful lot of work to try and study the law and understand it over the last two years, but certainly a person who comes before the court in that situation, with no background whatsoever, on a matter saying an agreement was made with the government, they promised to deliver papers to us, they have not delivered those papers to us. We have written and can show a record of asking for the matter to be settled for many years. Since we have received discovery there is much evidence that would support the fact that there was an agreement. In fact there are letters exchanged between the Prime Minister and two Premiers of Tasmania whereby there was a direct commitment given that the Commonwealth would provide a permanent lighthouse keeper on Deal Island. And only because of that agreement would they then allow lights to be put on other - small beacons on other lights.

These letters are dated for some months before and weeks before and after the time in which we were appointed to Deal Island. I have previously documented the fact that we were told we had the power of the Minister, that it had been tested in court, that a lighthouse keeper had the power of the Minister in loco, more than the normal public servants.

GUMMOW J: The red light has been on for some minutes, Mr Hollier.

MR HOLLIER: So essentially what happened was that we were not given the opportunity to prepare a case at all. We were not give the opportunity to obtain the matter in a timely fashion. Since then, we have been in a situation where we have had to prove that the court was at fault, rather than being in a situation where we could prove our case. So, in these matters, we have not been given a fair hearing by the ministerial inquiry which has been shown to be corrupted, it was rigged by the same people, essentially, who were trying to remove us from the Island. I mean, one has to realise that in 1983 government policy, there was a "Do we keep the keepers?", a report produced that said de-man lighthouses, find other organisations and have them perform these functions. We were approached in 1986 to do that.

GUMMOW J: Now, Mr Hollier, time really has expired, I think.

MR HOLLIER: Yes, your Honour. Thank you for listening to me.

GUMMOW J: Mr Solicitor, there has been some mention on the papers of registration of title. That has taken place, has it not in Tasmania?

MR BALE: Yes, your Honour. I thought that an affidavit was going to go on - it has been filed - by one of our - - -

KIRBY J: Would you identify that affidavit?

MR BALE: And attached to it is a copy of the title which shows - it is an extract of on-line search which was conducted on the 7th of this month. It shows the transfer of title having been registered on 2 September 1998.

GUMMOW J: This is an affidavit of Catherine Alexandra Lawley of 8 September 1999.

MR BALE: Yes, it is, your Honour.

KIRBY J: If one of the constitutional writs or other process were proper, would it not be possible for that to be reversed by order of the Court? I realise that the argument would be it strikes at the utility and suggests the futility of pursuing the remedy, but may it not be viewed from another angle, that if otherwise an applicant were entitled to succeed, that the Court could remedy that position and require reversal.

MR BALE: Your Honour, I do not have the provisions of the Land Titles Act before me, but there certainly are provisions for rectification of the register which may be activated for a number of reasons; patently error on the register is one. I suspect, without being able to assure your Honour, that if there were a Court order indicating that a particular registration of title should not have been registered, that the registrar would act upon it.

KIRBY J: How shortly would you be using it: futility, is it? How shortly would you be using that evidence in resisting that application?

MR BALE: We are not a party to - if there were an application, your Honour - we are not a party to any application and never have been in relation to this - - -

GUMMOW J: No, it is relied on by the Minister. It is relied upon by the federal Minister as an answer to the further answer.

MR BALE: Yes, it is, and the State of Tasmania is not a party in those proceedings.

GUMMOW J: We are really seeking information from you as to the way things work with the Tasmanian titles system.

MR BALE: Yes.

GUMMOW J: Thank you.

MR BALE: May it please your Honour.

GUMMOW J: Is there anything you want to say about that, Mr Hollier, about that exchange with the Solicitor-General for Tasmania.

MR HOLLIER: Thank you, your Honour. We have maintained previously that the powers in the Commonwealth, if you look at - the Constitution, first of all, provides power for the Commonwealth Government to deal with lighthouses. The whole Island, under the directions of Stokes, was to be made part of the lighthouse. The title was created by the State Minister which we maintained in the Supreme Court in Tasmania, where I was also told that I was a person changing colour, but anyway we have maintained that it is ultra vires because the State Minister does not have the power to create that title.

GUMMOW J: Yes, thank you.

MR HOLLIER: There are also other grounds, might I say. It appears that the High Court has pointed out Victoria was created a State by excising part of New South Wales and at the time the jurisdiction of Governor Fitzroy, his letters of appointment, went to - - -

GUMMOW J: We do not want to know about Governor Fitzroy.

MR HOLLIER: There is a good argument - - -

GUMMOW J: I am just asking you if you had any immediate response to what was said by the Solicitor-General for Tasmania as to the operation of the present Tasmanian land title system and you have said what you need to say, I think.

MR HOLLIER: I believe that the Act does say that where there has been some improper procedure or process that the title - that you can take it to court and agitate that the title be corrected. I also maintain that there is a good case that the land concerned is not even in Tasmania. It is either part of Victoria, based on the creation of Victoria and the fact that it held elections a year before Tasmania, and they had overlapping jurisdictions - - -

GUMMOW J: We have heard that argument on the papers, Mr Hollier.

MR HOLLIER: There is also another argument to say that it passed directly from Admiralty to the Commonwealth and only the Commonwealth could create a title, so it was effectively like a territory.

GUMMOW J: Thank you. We do not need otherwise to call on you gentlemen in either matter M91 of 1998 or M72 of 1998.

With respect to the first matter, that is the application under section 34 of the Judiciary Act for leave to appeal from the decision of Justice Hayne, the Court is of the view that there was no error in that decision of his Honour and, accordingly, leave to appeal should be refused.

In the remaining matter, M72 of 1998, the Court is of the view that there are no prospects of success in demonstrating error by the Full Court in dismissing the appeal to that court from the decision of Justice Sundberg. Accordingly, special leave to appeal is refused.

Are there any applications for costs? There should not be any doubling up of costs.

MR BEACH In the third matter, the Australian Maritime Safety Authority seeks its costs. That is the matter that AMSA is involved in, M72 of 1998.

GUMMOW J: Yes. The Commonwealth, however, in substance, is a party in both, is that not right?

MR BEACH: The Minister was joined as a respondent to M72 or the original proceeding so that it could be bound by the result or take the benefit of the findings but otherwise did not......

GUMMOW J: Yes.

MR MOSHINSKY: If your Honour pleases, I seek an order for costs in the matter of M91 on behalf of the respondent and in the other matter, M72, on behalf of the Minister for Workplace Relations.

GUMMOW J: Yes. What we have in mind at the moment - and you seek it too, Mr Solicitor?

MR BALE: May it please your Honour, but I can indicate that we would not seek any counsel's fee for today because that will be covered in the other matter. It would simply be costs of preparing the matter.

GUMMOW J: Yes. That brings me to what we had in mind. It was that there should be orders for costs, but in respect of each party there should be in substance only one order in respect of the three matters. So that no party gets a costs order in its favour for any more than one matter. Now, you have heard that, Mr Hollier.

MR HOLLIER: Yes, I have. Could I just refer to the same case that I put forward to the Court, that I do not believe I have been heard at any stage. There was no opportunity to provide - just as happened here today, I have prepared very carefully a case to show how I could substantiate that I had such title and was not allowed or given the opportunity to present it. It will not appear in the record. This is a failing in our legal system.

GUMMOW J: It is not a failing in the legal system, it is the operation of the legal system, Mr Hollier, and it applies to all litigants. They all have an opportunity to put in written submissions, which you availed yourself of, they are all given 20 minutes to present oral argument.

MR HOLLIER: Your Honour, I am distressed to think that this is the situation that all litigants face in this country, especially those that are not unable to afford legal advice.

GUMMOW J: We are not here to debate the system. That is the way it operates.

MR HOLLIER: Certainly. So I have not been heard in these matters and so an order as to costs seems to me to be inequitable.

GUMMOW J: The costs order in matter M27 of 1998 will require some revision in relation to the orders now to be made in matters M91 and M72. There will be costs orders in the three matters but to the intent that the respondents in each matter who receive a substantive costs order in their favour - that is the parties other than the first respondent, the Native Title Tribunal in M27 who were merely submitting - receive no more than one order covering the three matters. In particular there will be no doubling up of counsels' fees.

The Court will now adjourn to Tuesday, 28 September, at 10.15 am in Canberra.

AT 1.27 PM THE MATTER WAS CONCLUDED