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High Court of Australia Transcripts |
Last Updated: 26 June 2013
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
Appellant
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
Appellants
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, DARWIN AND PERTH BY VIDEO LINK TO CANBERRA
ON MONDAY, 11 DECEMBER 2000, AT 3.20 PM
(Continued from 5/9/00)
Copyright in the High Court of Australia
________________
HIS HONOUR: Call the first matter. Yes, Ms Perry.
MS PERRY: Thank you, your Honour. I must apologise to the Court because with respect to our summons for directions we should have issued a notice of motion, I understand, in relation to the amendments.
HIS HONOUR: Do not worry about that for the moment. I am just trying to find out who is who.
MS PERRY: I am sorry, your Honour. I was too keen to admit to my own error.
HIS HONOUR: That is right.
MS M.A. PERRY: In matter D7, I appear for the appellant and the second respondent in matter D9. (instructed by the Australian Government Solicitor)
MR J. BASTEN, QC: In matter D7, I appear for the first respondents. (instructed by the Northern Land Council)
HIS HONOUR: We will have to put Mr Pauling on ice for the moment. Do we have appearance from Adelaide for the third, fourth, fifth, sixth and seventh respondents?
MR N.J. HENWOOD: Yes, your Honour. I appear for the third to seventh respondents. (instructed by Cridlands)
MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia. If the Court pleases, I appear with my learned friend, MR S.C. CARLTON, seeking leave to intervene on behalf of the Attorney-General for the State of South Australia. (instructed by the Crown Solicitor for South Australia)
MR B.A. KEON-COHEN, QC: If your Honour pleases, I appear for Mirimbiak Nations, seeking leave to intervene. (instructed by Mirimbiak Nations Aboriginal Corporation)
MR S.J. GAGELER, SC: I appear for the representatives of the Lardil Kaiadilt Yangkaal and Gangalidda peoples who are applicants for leave to intervene. (instructed by Andrew Chalk Associates)
HIS HONOUR: Then there are some appearances in Perth, are there not?
MR G.M.G. McINTYRE: I appear for the Kimberley Land Council and Yamatji Barna Baba Maaja Aboriginal Corporation. (instructed by Kimberley Land Council) and (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)
MR K.M. PETTIT: If the Court pleases, I appear for the Attorney-General for the State of Western Australia. (instructed by the Crown Solicitor for Western Australia)
HIS HONOUR: Another prospective intervener.
MR PETTIT: Yes, your Honour.
HIS HONOUR: Then, in the second matter, Yarmirr, I will take the appearances as from the Court list.
Yes, Ms Perry. You seek to amend your notice of appeal, do you not? That is perhaps the first thing to do.
MS PERRY: We will be, your Honour, yes. I understand from the Registrar that we should seek to bring that matter on before the Full Court at the start of the hearing.
HIS HONOUR: We will see about that.
MS PERRY: We do understand that the application is not opposed from those parties we have spoken to. The only party whose position we have been unable to ascertain is that of the fishing parties.
HIS HONOUR: Yes, that is right. Let me ask Mr Henwood. Is there any opposition on your clients’ part, Mr Henwood, to this amended notice of appeal dealing really with the nature of relief if the appeal was successful.
MS PERRY: It is primarily and some housekeeping.
MR HENWOOD: No, your Honour, no opposition.
HIS HONOUR: Yes, all right. And I should have asked you, Mr Basten.
MR BASTEN: No, there is no opposition from us, your Honour. In fact, we may need to do the same thing.
HIS HONOUR: I was wondering about that.
MR BASTEN: Yes.
HIS HONOUR: Yes. Well, I will deal with Ms Perry’s matter first. So subject to anything that comes in from Darwin, I should deal with that now, I think. It would be an amended notice of appeal, would it not, as filed on 7 December?
MS PERRY: Yes, your Honour. Perhaps if we might seek leave also, your Honour, to file a clean copy so that it will be easier to read.
HIS HONOUR: Yes.
MS PERRY: Thank you.
HIS HONOUR: In matter No 7 I grant leave to the appellant to file an amended notice of appeal in the form of the draft filed 7 December. Then I think there was a suggestion on the other side, Mr Basten, that your notice of appeal should be amended.
MR BASTEN: Yes, we were going to seek leave to amend it simply to conform with the determination sought in the submissions.
HIS HONOUR: Yes, and the Commonwealth is respondent, in advance, as it were.
MR BASTEN: They have, yes.
HIS HONOUR: Is there any formulation of that amendment?
MR BASTEN: I do not have a document, your Honour. We could file something. I was merely going to seek leave in terms of the – perhaps we have the Territory.
HIS HONOUR: Do not worry about them for the moment.
MR BASTEN: Seek leave to amend to include the proposed variations to the determination as set out in the appellants’ written submissions.
HIS HONOUR: Yes. In matter No D9 – that is yours, is it not, Mr Basten?
MR BASTEN: Yes.
HIS HONOUR: Yes. I grant leave to the appellant to amend their notice of appeal.
MR BASTEN: Your Honour, Ms Perry points out to me that we may need to amend the grounds as well as the orders sought to be consistent with each other.
HIS HONOUR: Yes, all right. Well, I have said in her case to file an amended notice of appeal in or to the effect of the draft filed on 7 December, and in your case grant leave to the appellants to file an amended notice of appeal to conform to – is it conveniently encapsulated anywhere in the submissions what the - - -
MR BASTEN: Paragraph 7.2 of the written submissions, I think, your Honour.
HIS HONOUR: Of yours?
MR BASTEN: Yes. I can hand up a copy.
HIS HONOUR: No, do not do that. Yes, perhaps you had better. I do not know where it has gone.
MR BASTEN: I have opened the document at page 39, your Honour.
HIS HONOUR: I will give that back to you. Matter No D9 I grant leave to the appellants to file an amended notice of appeal to conform with the submissions in paragraph 7.2 of their written submissions dated 6 November 2000. Then there was some question, Ms Perry, of a 78B notice, was there not?
MS PERRY: Your Honour, there was. The issue primarily arises out of paragraph 3.54 of the Commonwealth’s written submissions filed in No D7.
HIS HONOUR: Yes.
MS PERRY: We have decided out of an excess of caution that we will issue a section 78B notice so as to ensure that that issue can be fully ventilated if need be.
HIS HONOUR: Yes, all right.
MS PERRY: It relates to the acquisition of territory and whether that can occur silently by the Commonwealth.
HIS HONOUR: That is right, 3.54 it is of your submissions.
MS PERRY: Yes, it is, your Honour.
HIS HONOUR: Yes, I have read that.
MS PERRY: Thank you.
HIS HONOUR: All right. As between the parties, is there anything more to be done? It does not seem so.
MR BASTEN: Your Honour, I am sorry, Mr Henwood, I think - - -
HIS HONOUR: Yes, Mr Henwood.
MR HENWOOD: Your Honour, sorry, yes, there is one what I hope will be a minor matter. Your Honour may have noticed that we have not as yet filed any written submissions.
HIS HONOUR: Yes, I did.
MR HENWOOD: It is my request, your Honour, for a further seven days in which to do that. I would indicate to your Honour they will be very brief and confined to two points, most of the matters having been dealt with by the other parties, but we do need some further time to formulate - - -
HIS HONOUR: What are the two points?
MR HENWOOD: The two points, your Honour, go to - neither of the Northern Territory nor the Commonwealth have dealt with in any detail with the concept of abandonment of native title rights and interests and whilst it is related, your Honour, to the recognition point that the Commonwealth deals with quite substantially - - -
HIS HONOUR: Does it arise on anyone’s notice of appeal?
MR HENWOOD: Yes, your Honour. It arises directly out of the appellants’ appeal in D9.
HIS HONOUR: Is that right, Mr Basten?
MR BASTEN: I do not know, your Honour. I thought he said it arose out of the Commonwealth’s argument on recognition, which I understood to be their matter in D7.
HIS HONOUR: Yes.
MR BASTEN: Obviously, if that were so, it would concern us because we have already replied in that matter, but if it arises out of ours in some way, then we have an opportunity to reply and that will be the other matter which your Honour will no doubt want to deal with.
HIS HONOUR: Yes. What is the position, Mr Henwood, D7 or D9?
MR HENWOOD: It arises in D9. What I said, your Honour, was that there is a matter dealt with in the Commonwealth’s submission in D9 and the point we wish to make is slightly different but it arises out of the appellants’ appeal in D9.
HIS HONOUR: Whereabouts in the Commonwealth’s submissions on D9?
MR HENWOOD: I am sorry, your Honour, I do not have that volume with me, but there is a - - -
HIS HONOUR: Well, that is not very satisfactory, frankly.
MR HENWOOD: No, I apologise for that, your Honour. I am not in my home jurisdiction at present.
MS PERRY: Your Honour, if I might be able to assist.
HIS HONOUR: Yes.
MS PERRY: The submissions in relation to non-recognition as distinct from extinguishment are contained in Part 4 of the Commonwealth’s submissions in D9 commencing at page 37.
HIS HONOUR: Yes.
MS PERRY: And specifically the question of recognition, a discussion of that concept, begins at page 39 and it is submitted in that that if recognition for native title occurs at a later date than the acquisition of sovereignty on land then statutory provisions in place at that time will cap the extent of native title recognised.
HIS HONOUR: Yes. Do you want to agree or disagree with that, Mr Henwood?
MR HENWOOD: We want to not disagree with it, your Honour, but put a slight alternative proposition which is to this effect, that where there has been, irrespective of the statutory or recognition aspect, a non-performance, if you like, of native title rights and interests, the submission will be that those rights and interests have been abandoned, as it were, whatever the situation with recognition, cannot now form a native title right and interest which should be recognised by the Court or by a determination.
HIS HONOUR: You will want to reply to that, Mr Basten.
MR BASTEN: We would wish that opportunity, yes, your Honour.
HIS HONOUR: When is your time for reply at the moment?
MR BASTEN: That has not been fixed as yet.
HIS HONOUR: All right. What is the other point, Mr Henwood?
MR HENWOOD: The other point, your Honour, is in general terms this, that the appellants’ submissions in D9 are predicated on what appears to be a theory of native title that, irrespective of abandonment or non-recognition, that if I suppose you could call it the minority view in Ward seems to be the underlying premise and we wish to deal with that because none of the other parties have yet grappled with it.
HIS HONOUR: Just explain that to me again.
MR HENWOOD: Well, your Honour, the appellants’ appeal seeks a determination that there is a right of exclusive possession and it is based on the fact that because they maintain traditional rights and interests in the waters concerned, and because as a matter of tradition there is a right of exclusive possession, therefore you should ignore the subsequent or intervening events which diminish that exclusive right and we want to make the point that that cannot be the correct way of looking at it but, to the extent that native title rights continue, they cannot, for a similar reason, include exclusive rights because those rights have been extinguished.
HIS HONOUR: Yes. This is not dealt with by the Commonwealth?
MR HENWOOD: Not in so many words that I could tell, your Honour.
MS PERRY: Your Honour, I was just trying to find the precise paragraph where we do deal with this submission, although the issue is very faintly
raised, I think, in D9, so we dealt with it ourselves very shortly. I will endeavour to find that paragraph for your Honour. I just could not remember the number.
HIS HONOUR: It is really a question again for Mr Basten, I suppose, in reply.
MS PERRY: I think it is dealt with, your Honour, at paragraph 2.12 of the Commonwealth’s submissions.
HIS HONOUR: Thank you. Yes I see. How soon can these submissions be done, Mr Henwood?
MR HENWOOD: I would seek a further seven days, your Honour, until next Monday.
HIS HONOUR: All right. This is in D9, is it?
MR HENWOOD: Yes, your Honour.
HIS HONOUR: Yes, I think so. So the date for you is really 8 December, I think.
MR HENWOOD: It was, your Honour, yes, last Friday.
HIS HONOUR: So the extension is until when?
MR HENWOOD: Ideally, your Honour, until next Monday, the 18th or, alternatively, this Friday.
HIS HONOUR: Very well. You will need a time to reply to that, do you not, Mr Basten?
MR BASTEN: Yes. I note that the Commonwealth has some suggested directions in relation to interveners’ submissions and replies. If your Honour were minded to give directions along those lines, we would have no difficulty with accommodating the Fishing Industry’s submissions.
HIS HONOUR: Just tell me what time you need. We will worry about the interveners afterwards. What time do you need?
MR BASTEN: If we were only replying to that, your Honour, perhaps by some date towards the middle of January. What we were anticipating was maybe replying to the Commonwealth and the interveners at the same time and the Commonwealth suggests - - -
HIS HONOUR: I am not very happy about the interveners at the moment, actually. The inverveners’ materials have to be limited to explaining the extent to which they do or do not depart company from the parties’ submissions.
MR BASTEN: Yes.
HIS HONOUR: The Court will not be entertained by needless duplication just on the basis we need to know what various other parties think about these questions.
MR BASTEN: Yes. We would still say that 29 January might be an appropriate date for replies in both appeals, your Honour.
HIS HONOUR: It is the week, I think – eight days before the commencement - - -
HIS HONOUR: That would be for the Commonwealth as well in D7?
MR BASTEN: Yes.
HIS HONOUR: Now, is there any representation in Darwin visible and audible now?
MR T.I. PAULING, QC, Solicitor-General for the Northern Territory: I appear with MS R. WEBB for the Northern Territory. We are the second respondent in D7 and the first respondent in D9. (instructed by the Solicitor for the Northern Territory)
HIS HONOUR: These are the orders I would propose to make so far as between the parties, and let me know if there is any difficulty with the Northern Territory’s position in respect of them.
In matter No D7:
1. Grant leave to the appellant to file an amended notice of appeal in or to the effect of the draft which was filed on 7 December 2000.
2. Leave to the Commonwealth to file and serve its submissions in reply on or before 29 January 2001.
In matter No D9:
1. Grant leave to the appellants to file an amended notice of appeal to conform with their submissions in paragraph 7.2 of the submissions dated 6 November 2000.
2. Extend until 18 December 2000 the time in paragraph 10 of the order of 5 September 2000 which deals with the position of the third to the seventh respondents.
3. The appellants to file and serve their submissions in reply on or before 29 January 2001.
Any problem with that in Darwin?
MR PAULING: No, your Honour.
HIS HONOUR: Thank you. Now, what is to be done about the – let me ask the appellants first. Mr Solicitor for South Australia, you will be supporting the Commonwealth, I suppose. Would that be right?
MR SELWAY: Yes, your Honour. We will disagree with the Commonwealth on one point, a relatively narrow point. In paragraphs 4.20 to 4.21 of the Commonwealth submission in D7 the Commonwealth argues that the Northern Territory Off-shore Waters (Application to Territory Laws) Act did not have any effect in applying, if you like, native title out to the three-mile limit. We disagree with the Commonwealth on that submission. Other than that, I think our submissions will basically adopt the Commonwealth.
HIS HONOUR: Right. Yes, thank you. What is the position with the South Australian Attorney? Mr Pettit?
MR PETTIT: The Solicitor-General for Western Australia, your Honour, our position is, firstly, that in both appeals we will generally support the position of the Commonwealth - - -
HIS HONOUR: I am sorry, I cannot quite hear you.
MR PETTIT: Generally, your Honour, in respect of both appeals the Attorney for Western Australia will support the position of the Commonwealth with some minor differences, that perhaps the most notable of those differences is that we will not contend that there is any requirement for a radical title against which native title is held, but, your Honour, might I say that our primary concern in seeking leave to intervene is really on the other two aspects of these proceedings and that is to bring to the Court something of our experience on land claims and note the submissions concerning the - - -
HIS HONOUR: We are trying an appeal against parties. The parties tender issues for the Court.
MR PETTIT: Yes, your Honour.
HIS HONOUR: You either support issues or you do not support issues. You cannot supply your own issues. We are not receiving evidence, so you cannot provide evidence.
MR PETTIT: No, I am aware of that, with respect to your Honour.
HIS HONOUR: We went through this with Wik and we are not going to go through it again.
MR PETTIT: The issues are firmly before the Court. The issues are whether or not there needs to be use of.....and we have some - - -
HIS HONOUR: What I need to know specifically from you is, with some specificity, as I am trying to say, which submissions of the Commonwealth you do not support, which ones you wish to supplement and so forth, and general positions will not help in getting you leave to intervene.
MR PETTIT: The submission of the Commonwealth in respect of the proof of native title in an area of the sea is a submission we wish to support and we wish to bring to that submission a perspective which brings in - - -
HIS HONOUR: No, it is not a question of perspectives. Perspective expressed how, expressed in some evidentiary form?
MR PETTIT: No, your Honour, by way of analogy and by way of instances of how these general propositions may find expression around the country in native title claims.
HIS HONOUR: Well, it is exactly what is not a proper role for an intervener, frankly. It seems to me that the position indicated by the South Australian Solicitor-General is the right way to approach it. Now, I cannot bind you in any respect. I can only tell you what, on my view at the moment, is the right way to approach it.
MR PETTIT: Your Honour, in respect of the primary issue, whether or not native title can be recognised in the ocean, our position is exactly the same as that of the Solicitor-General for South Australia, namely, that we support the Commonwealth with the minor exception that I have indicated.
HIS HONOUR: Yes, very well, thank you. Now, Mr Keon-Cohen, what do you want to do? And do not say you want to assist the Court by expanding the length of time this matter is going to take to hear on issues that do not really arise between the parties.
MR KEON-COHEN: No, your Honour, that is not the basis, with respect.
HIS HONOUR: We are not conducting a Royal Commission.
MR KEON-COHEN: No, your Honour. Has your Honour had an opportunity to read our notice of motion and affidavit in support?
HIS HONOUR: Yes.
MR KEON-COHEN: Your Honour, the basic basis upon which we seek to intervene are twofold. First, as indicated in the affidavit, that we have a direct interest in the sense explained by his Honour the Chief Justice in Levy’s Case, that is to say the statutory organisation whom I represent is the representative body under the Native Title Act - as indicated in the affidavit, it has statutory powers and functions - representing, as we do, for current purposes three claims which extend beyond the 12 nautical mile limit.
HIS HONOUR: Yes, I understand that. What I need to know, though – and I cannot rule on those matters of sufficiency of interest at the moment – is to what extent you will be departing from Mr Basten’s grounds or supplementing them or, to put it crudely, going to say something useful.
MR KEON-COHEN: Your Honour, we would be supporting Mr Basten’s grounds in both matters. The matter of use over and above, in our submission, that we can contribute to the Court touches upon the Court’s – of the Court’s decision impacting upon fisheries arrangements in Victoria.
HIS HONOUR: Yes. Well, the Court will not rule on that.
MR KEON-COHEN: No, but - - -
HIS HONOUR: We went through this in Wik.
MR KEON-COHEN: Yes, your Honour.
HIS HONOUR: Remember that.
MR KEON-COHEN: I recall that. Your Honour, the proposition we put, in accordance with the Chief Justice’s observations in Levy, is that in order to assist the Court reach a correct determination it may be aided by that contribution, that is to say a discussion of the legislative and administrative arrangements in Victoria which will be affected by, for example, a decision that native title vests in the seas or not.
HIS HONOUR: Yes.
MR KEON-COHEN: That is the short point, your Honour, and we would anticipate that would take no more than short written submissions and, if we are allowed oral intervention, no more than 15 minutes.
HIS HONOUR: Yes, thank you. What about you, Mr Gageler?
MR GAGELER: Your Honour, we wish to intervene generally in support of Mr Basten’s clients but to isolate and expand upon two particular propositions. In matter No D7 we wish to isolate and expand upon the proposition that there can be recognition of common law of native title rights in the territorial sea, that is, independently of statute - - -
HIS HONOUR: That is in conflict with the Commonwealth’s submission.
MR GAGELER: Yes.
HIS HONOUR: Yes.
MR GAGELER: And it is really isolating one of Mr Basten’s submissions. The position we wish to advance in appeal No D9 is that there can be native title rights in the nature of exclusive possession of the territorial sea that can be subject to, and, therefore, co-exist with, the common law right of navigation and the international law right of innocent passage. That may be to a very slight extent inconsistent with Mr Basten’s primary position, but it would be consistent with his fall-back position.
HIS HONOUR: Yes. What do you suggest for timing?
MR GAGELER: The middle of January would be - - -
HIS HONOUR: Because it is quite oppressive to the parties to have these people get on the bus when it is almost at the destination.
MR GAGELER: Yes. Your Honour, I would limit our submissions to 20 pages, I would limit the submissions to supplementing what is said by the parties and we would wish to be able to put them in in the middle of January.
HIS HONOUR: Yes, by the middle of January.
MR GAGELER: Yes. Perhaps the 15th, your Honour.
HIS HONOUR: The 15th, and then the parties to reply as they wish by the 29th. Would that be convenient?
MR GAGELER: If your Honour pleases.
HIS HONOUR: Does anyone wish to dissent from that? All right. Yes, thank you, Mr Gageler.
I will say then the applicants for intervention file and serve their written submissions on or before 15 January 2001, submissions to be no more than 20 pages and to identify specifically those written submissions of the parties which they supplement or contradict. Each party will have an opportunity to reply on or before 29 January 2001. I will read the directions again.
In D7 grant leave to the appellant to file an amended notice of appeal in or to the effect of the draft filed of 7 December 2000. The Commonwealth to reply by 29 January 2001 to outstanding submissions by the other parties and by the applicants for intervention. The applicants for intervention will file and serve their written submissions on or before 15 January, the submissions, as they indicated, to be no more than 20 pages and to identify specifically those written submissions of the parties which they supplement or contradict.
In matter D9 there will be a grant of leave to the appellants to file an amended notice of appeal to conform to the submissions in paragraph 7.2 of the written submissions dated 6 November 2000. There will be an extension until 18 December 2000 of the time in paragraph 10 of the order of 5 September 2000. The applicants for intervention will file and serve as indicated in the order just made in D7 and there will be leave to the parties to reply to any outstanding submissions by the other parties and by the applicants for intervention. Those submissions in reply will be filed by 29 January 2001. I think I should probably relist the matter – yes, Mr Basten?
MR BASTEN: I was just going to say your Honour might wish to make clear whether the applicants for intervention include Mr McIntyre’s clients, the Kimberly Land Council and the Yamatji Aboriginal Corporation.
HIS HONOUR: Yes, I will come back to that in a moment. I should relist it on Monday, 5 February at noon Canberra time. That is the day before the 6th, which is the first hearing day. I will list both matters before me at noon in Canberra. The reference to applicants for intervention includes the State of South Australia, Mr Keon-Cohen’s clients, Mr Gageler’s clients, Mr McIntyre’s clients and the Attorney-General for Western Australia. I think that is it.
MS PERRY: Your Honour, there were two matters which were still outstanding on the Commonwealth’s summons for directions which I think can be dealt with fairly shortly.
HIS HONOUR: Yes.
MS PERRY: In the first, we sought an extension of time within which to file and serve the statutory material which we were required to file under the practice direction. There have been discussions between the parties and what we are proposing to do, your Honour, now is to file a joint book of statutory material as there is a significant degree of overlap between the two appeals. So if your Honour is agreeable to that course, then I think compliance with that might perhaps be waived.
The second matter related to page limits for replies. In that regard - - -
HIS HONOUR: Sorry, related to?
MS PERRY: Page limits, your Honour, for replies. We had a concern that with the interveners it may be very difficult to confine ourselves to five pages but we are mindful of the need to keep submissions as short as possible.
HIS HONOUR: I will not make any specific direction about it, but I know you will both be sensible.
MS PERRY: Thank you, your Honour.
MR KEON-COHEN: Your Honour, may I mention two matters. Firstly - - -
HIS HONOUR: I had not finished dealing with Ms Perry yet. Now, what specific waiver do you seek?
MS PERRY: Of paragraph 7(g) of Practice Direction No 1.
HIS HONOUR: But in your summons.
MS PERRY: It is in our summons on paragraph 2.
HIS HONOUR: You mention a book for both, D7 and D9?
MS PERRY: I think that would be appropriate.
HIS HONOUR: I think so too.
MS PERRY: I think that the appellants in D9 have already filed statutory material. It is just that we now consider this was a more appropriate way to proceed.
HIS HONOUR: Yes. Were you suggesting some composite?
MS PERRY: Yes, your Honour, precisely, so there would only be one volume of statutory material for the Court. The only other thing I should mention is that there is quite extensive fisheries legislation which is raised by the Commonwealth’s submissions in reply to D9. In the lower courts we have relied upon a very helpful compilation of material by the Northern Territory of that legislation and that is fully cross-referenced in the appendix that appears in the Commonwealth’s submissions. The Northern Territory, I understand, has already been assisting the Commonwealth to copy that material. That was the way we proposed to handle that, if your Honour is agreeable to that.
HIS HONOUR: Yes. Do I need to give specific directions about that?
MS PERRY: No, your Honour, I do not believe so.
HIS HONOUR: I do not think I do, if the Northern Territory, yourselves and Mr Basten can co-operate in that respect.
MS PERRY: Yes.
HIS HONOUR: When will the book be ready, so that I know roughly.
MS PERRY: I think we should allow some time for discussion with the parties to agree by it.
HIS HONOUR: Yes, but by mid-January?
MS PERRY: I think mid-January we would endeavour to achieve that.
HIS HONOUR: All right. I will not make a specific direction but I just indicate that the composite book that has been indicated should be available by 15 January.
MS PERRY: Yes, your Honour.
HIS HONOUR: Yes, Mr Keon-Cohen.
MR KEON-COHEN: If your Honour pleases, is it your Honour’s intention that the submissions and cross-submissions to be presented to the Court should also be served on the interveners? We are a little behind the starting blocks at the moment because we have not seen everything. Naturally enough, we are not parties.
HIS HONOUR: Yes. I think you need to if you are going to specifically point out what you disagree with.
MR KEON-COHEN: Exactly, your Honour. It will assist us to be concise.
HIS HONOUR: That is right. Can that be done?
MR BASTEN: Yes.
MS PERRY: Your Honour, that can be done but it may be that it can be done electronically, which may be of assistance, but perhaps we, the parties and the interveners, might speak about that.
HIS HONOUR: Yes. It needs to be done sooner rather than later.
MS PERRY: Yes. I thought that might be a way of dealing with it more expeditiously.
HIS HONOUR: Yes.
MR KEON-COHEN: And, your Honour, we had in mind that procedure applying to the submissions to be filed and served in mid-January and late January.
HIS HONOUR: I think that is right, yes. I do not need to give any directions about that, I do not think.
MS PERRY: No.
MR KEON-COHEN: No. I imagine Mr McIntyre’s clients would be in a similar position.
HIS HONOUR: That is right. Are you following this, Mr McIntyre?
MR McINTYRE: Yes, I am, your Honour. I have.....both the Commonwealth and the Yarmirr parties submissions already, so I am a little ahead of the - - -
HIS HONOUR: Yes, I gathered that. All right. I think I should also say liberty to restore before me or another Justice on five days’ notice and stand both matters over for further directions to 5 February 2001 before me in Canberra at noon. Costs of today will be costs in the appeals and I certify for counsel.
MR BASTEN: If the Court pleases.
MR PAULING: Your Honour, there is a direction that has not been given that - - -
HIS HONOUR: I am sorry, Mr Pauling, I cannot hear you.
MR PAULING: Your Honour, there is a direction we need in D7, if your Honour would make it.
HIS HONOUR: Yes.
MR PAULING: Our position is quite different to that of the Commonwealth in that matter and we would seek the opportunity to reply also by 29 January to the submissions of interveners.
HIS HONOUR: Yes. That was in D7, was it?
MR PAULING: Yes, D7, your Honour.
HIS HONOUR: Yes. So order No 2, where it says, “The Commonwealth to reply”, it should say, “The Commonwealth and Northern Territory to reply on or before 29 January 2001 to outstanding submissions by other parties and by the applicants for intervention”. Does that meet the case?
MR PAULING: That does, your Honour, thank you.
HIS HONOUR: Is there anything else?
MR SELWAY: Your Honour, in both matters, D7 and D9, there has been an affidavit filed on behalf of South Australia by Suzanne Elizabeth Carlton which refers to the submissions that South Australia is to make and it purports to annex them to the affidavit. In fact, they are not annexed.
HIS HONOUR: I know, but they are going to come.
MR SELWAY: Yes, your Honour.
HIS HONOUR: Yes.
MR SELWAY: What I wish to ask for is would it be possible to have your Honour’s leave to remove that affidavit upon us undertaking to file another affidavit in the same terms with the submission annexed by tomorrow?
HIS HONOUR: Yes. You do not need to go to that trouble. Why do you not just file the submission tomorrow, Mr Selway?
MR SELWAY: If it please your Honour, we are happy to do that.
HIS HONOUR: Yes. There is no need to have a supplementary affidavit. Just file it.
MR SELWAY: Thank you, your Honour.
HIS HONOUR: Yes, all right. The Court will adjourn until 10.15 am tomorrow.
AT 4.09 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 5 FEBRUARY
2001
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