Commonwealth of Australia v Yarmirr & Ors D7/2000 [2000] HCATrans 514 (5 September 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D7 of 2000

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

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

Applicants

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

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

FROM ADELAIDE AND DARWIN BY VIDEO LINK TO CANBERRA

ON TUESDAY, 5 SEPTEMBER 2000, AT 3.33 PM

Copyright in the High Court of Australia

________________

MS M.A. PERRY: In matter D7, I appear for the appellant. In matter D9, I appear for the second respondent. (instructed by the Australian Government Solicitor)

MR J. BASTEN, QC: In matter D7, I appear for the first and ninth respondents. In matter D9, I appear for the appellants. (instructed by the Northern Land Council)

MS R.J. WEBB: In matter D7, I appear for the second respondent. In matter D9, I appear for the first respondent. (instructed by the Solicitor for the Northern Territory)

MR N.J. HENWOOD: In matter D7, I appear for the third to seventh respondents. In matter D9, I appear for the third to seventh respondents. (instructed by Cridlands)

MR BASTEN: In D7, there is no appearance for the eighth respondent. In matter D9, there is no appearance for the eighth or ninth respondents.

HIS HONOUR: Yes, thank you, Mr Basten. I have a certificate from the Senior Registrar with respect to the eighth respondent in both matters. It appears that the eighth respondent did not participate in the hearing of the appeals before the Full Court of the Federal Court and that on 2 December 1998 Justice O'Loughlin of the Federal Court ordered that any requirement to serve the eighth respondent in the Federal Court proceedings be dispensed with and, accordingly, it appears that the eighth respondent will not be further participating here.

MR BASTEN: May I just note in relation to that matter, your Honour, that apparently the Commonwealth has been in touch with that respondent and there is still a possibility she may take some step in the proceeding.

HIS HONOUR: Thank you. Should I work off the draft minutes emanating from the AGS in Darwin?

MR BASTEN: Yes, that is convenient, I think, your Honour.

HIS HONOUR: Is what is proposed there generally acceptable?

MS PERRY: Your Honour, I understand that all parties have agreed to that course, save Ms Henwood, who has not disagreed with it, but, as Mr Basten had indicated, is in the process of deciding whether she wishes to participate in the appeal.

HIS HONOUR: Yes, thank you, Dr Perry.

MR BASTEN: Your Honour, I think the one comment which might be made in relation to the directions sought in relation to the written submissions is that the dates contained are posited upon a February hearing.

HIS HONOUR: Yes.

MR BASTEN: If that were not to be the case, then, no doubt, the 15 November date and 15 December could be put back a little.

HIS HONOUR: Yes. Well, I was proposing to push them back a little to permit for a further directions hearing before me on 11 December in Canberra at 2.15.

MR BASTEN: Yes.

HIS HONOUR: I will go through them. So there seems to be no difficulty with 1, 2, 3, 4 and 5. As to 6, I will make that direction as to the length of written submissions, but if the written submissions have gone excessively over the 20 pages, I will be looking at that on 11 December and they may have to be curtailed so that the Full Court is not burdened with them. Subject to that, which I will come back to, 6 looks all right, 7 - and I am working off D7, I should make clear - I think that should be "3 November" and 8 should be "17 November".

Now, the idea there, as I understand it, is to avoid unnecessary duplication between submissions.

MS PERRY: Your Honour, that is the intention.....

HIS HONOUR: Yes, that seems very sensible. Then in D7, the respondents opposing the appeal, they will be which ones?

MR BASTEN: It will be us, your Honour - - -

HIS HONOUR: First and second, will it not?

MR BASTEN: No, the first and ninth.

HIS HONOUR: Yes. So 9 will say:

The first and ninth respondents opposing the appeal file and serve written submissions in response on or before 1 December.

I will leave 10 at the moment, which deals with replies. I will make 10 as follows:

Stand the appeal over for further directions, including directions respecting any excessive length of submissions already filed, and the filing of submissions in reply, and the filing of submissions by interveners and applicants for intervention to 2.15 pm on 11 December 2000 before me at Canberra.

Now, the idea there is to make sure the interveners come in as soon as possible thereafter so the parties know where they are standing. We should, by that time, have a clear hearing date so we can deal with submissions in reply and interveners and deal with those matters with that final hearing date for the appeal clearly then in mind. So that then would be 10.

11. That there be liberty to apply on seven days written notice.

12. I should certify for counsel.

Then the other one is D9, is it not? Again, 1, 2, 3, 4, 5 and 6 would be made as indicated. 7 again would be 3 November. Who will be the respondents wishing to put submissions in support of that appeal?

MR BASTEN: The only respondent who is in the same interest as the appellant is the ninth.

HIS HONOUR: The ninth, yes.

MR BASTEN: It is taking no part in the appeal.

HIS HONOUR: That is right.

MR BASTEN: So there will be nobody putting submissions in support, as I understand it, except for interveners possibly.

HIS HONOUR: Yes.

MS PERRY: It is not known, your Honour, either - - -

HIS HONOUR: Well, I leave it as is, Ms Perry. Yes. I will leave 8 as is and make it 17 November and then:

9. The second respondent -

that is the Commonwealth, is it not, yes -

file and serve written submissions on or before 1 December.

And then 10 will be as made in the other matter, D7. Likewise 11 and 12.

MR HENWOOD: Paragraph 10 relates to the other respondents.

HIS HONOUR: Yes. I am sorry, yes, that is quite right. So 10 should stay as it is but should be "8 December" and then 11 will be 10, as in the other one, and 11 and 12 likewise, brought across but renumbered. Does that make sense?

MR BASTEN: I think it does, your Honour.

HIS HONOUR: So both matters can then come back at 2.15 on the 11th before me in Canberra to deal with any undue length of submissions and with any further replies and with interveners. I am not suggesting that interveners have to turn up on that day, but if they do not, some directions may be made in their absence. That is all I can say and you can show them the transcript. I suppose I should add in each one a final order, which should be costs of today to be costs in the appeals.

MR BASTEN: Your Honour, is there any indication your Honour wishes at this stage as to how long the appeals might take, taken together or - - -

HIS HONOUR: I was thinking these ones between two to three days.

MR BASTEN: Yes. They took five days before the Full Court without intervention.

HIS HONOUR: Yes, that is right.

MR BASTEN: I think we were going to suggest that four days would be, taking into account that we believe there will be some intervention, a preferred timetable, but it is a matter for the - - -

HIS HONOUR: Yes. We will look at that on the - - -

MR BASTEN: The next occasion.

HIS HONOUR: Yes.

MR BASTEN: Yes, and it is intended, in effect, that we get this ready for the February sittings on this timetable?

HIS HONOUR: If possible, yes.

MR BASTEN: If your Honour pleases.

HIS HONOUR: Yes, that is right. Now, Mr Pauling - - -

MR BASTEN: He is not - Ms Webb is appearing for the Territory, your Honour.

HIS HONOUR: Who is looking after his interest, Mr Webb?

MR BASTEN: Ms Webb is appearing for the Northern Territory, yes.

HIS HONOUR: Yes.

MS WEBB: Ms Webb, your Honour.

HIS HONOUR: Does this seem suitable, Ms Webb, from your point of view?

MS WEBB: Yes, it does, thank you.

HIS HONOUR: Yes. I just wanted to make sure someone was there in Darwin. All right. Well, orders will be made as indicated and I will then adjourn for further directions to the date indicated, on 11 December at 2.15 in Canberra. We will now adjourn.

AT 3.47 PM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 11 DECEMBER 2000