Jones & Ors v Stratton & Ors B28/2000 [2001] HCATrans 401 (29 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B28 of 2000

B e t w e e n -

JOHN DALUNGDALEE JONES, NEIL LITTLE, TANIA BROWN, BEVON LITTLE, REGINALD THEGEA and JOEL LITTLE

Plaintiffs

and

PETER STRATTON, DOUGLAS SCHULZ, Officers of Queensland Parks and Wildlife Service, THE STATE OF QUEENSLAND and THE COMMONWEALTH OF AUSTRALIA

Defendants

Application to strike out

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 29 AUGUST 2001, AT 10.00 AM

Copyright in the High Court of Australia

HIS HONOUR: Mr Jones, you appear for yourself?

MR J.D. JONES: Unfortunately this action was brought on on such a short notice that our barrister in Melbourne, we conferred at great length yesterday afternoon and early this morning and she did fax me up a letter which I will present to everybody, mainly saying that - - -

HIS HONOUR: Just before you go on I might get the other appearances, Mr Jones, thank you.

MR D.C. RANGIAH: I appear for the defendants, Stratton, Schulz and the State of Queensland. (instructed by the Crown Solicitor for the State of Queensland)

MR M.C. SWAN: Your Honour, I appear for the defendant, the Commonwealth of Australia. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, Mr Jones, you go ahead.

MR JONES: Your Honour, as one of the plaintiffs I was only notified by mail yesterday at 10 o'clock from the Deputy Registrar, Mr Ben Wickham, and it was very surprising that this hearing was brought on on such short notice. I immediately got in touch with our barrister in Melbourne, Sherrill O'Connor, and she was quite startled as well because we actually only got the submissions from the State yesterday afternoon and at 6.15 yesterday afternoon from the Commonwealth.

Now, as can be seen from the various submissions and argument, it is very comprehensive and complex and this is why with consultation with Sherrill O'Connor this morning she advised that the matter should be adjourned until we have proper legal consideration because the matters are very, very serious. Here is a letter I just got from her faxed at 9.30 this morning.

HIS HONOUR: Have you a copy for Mr Swan and Mr Rangiah? Thank you. Let me just read this. Yes. Well, you are looking for an adjournment, Mr Jones, is that right?

MR JONES: Yes, your Honour.

HIS HONOUR: What is your attitude to that, Mr Rangiah?

MR RANGIAH: I will have to take instructions, your Honour. I was not aware that this application would be made. I will ask - - -

HIS HONOUR: I mean, it was rather short notice. I think I said that I would - I told the Registrar I could sit, on Friday, I think it was, on these matters today but it does seem to be rather late notice to Mr Jones. Mr Jones, when did you first find out about the matter, when it was coming on?

MR JONES: Only in the mail yesterday morning at 10.15 and I immediately rang Mr Wickham up in Canberra and then he said it is in process and his letter then went on to say that we can put in submissions by late yesterday, 4 pm, and with our hurried consultation with our barrister in Melbourne we managed to compile a rather brief submission, mainly focusing on the - the main course of the application is to have this hearing remitted to the Supreme Court.

HIS HONOUR: To the Supreme Court, yes.

MR JONES: Yes. Well, we object to that, your Honour, for the simple reason that the statement of claim that we did file, when you read the actual chronology, our serving of the writ and the appearance notices filed by the defendants and then with our filing of the statement of claim, the defendants are well and truly out of time according to Order 22 rule 6 for filing their defence. So we are in the process now of - when we finally do complete this mass of evidence that we have been compiling, we will be filing an application for summary judgment because in actual fact under Order 22 the defence just has not - the defendants just have not put in a defence.

HIS HONOUR: All right, thank you. I did not ask you, Mr Swan, what your attitude was.

MR SWAN: Your Honour, we oppose the adjournment of the hearing of the summons that was filed on behalf of the Commonwealth because it is not a complex matter.

HIS HONOUR: When did you file the summons?

MR SWAN: Our summons was filed on 26 October last year, your Honour, and from May last year we took up the issue with the plaintiffs as to what their case against the Commonwealth was. It is clear from what Mr Jones said this morning and from the course of correspondence annexed to the affidavits which I will read, if no adjournment is granted, it is clear from that correspondence that since May last year we have been pointing out to the plaintiffs that there are no facts alleged against the Commonwealth. The Commonwealth really is only named as a defendant.

HIS HONOUR: All right. You oppose the adjournment?

MR SWAN: We oppose it, yes, your Honour.

HIS HONOUR: Mr Rangiah, what is your attitude?

MR RANGIAH: I do not make any submissions one way or another, but perhaps I should just point out, your Honour, that on 20 November 2000 the summons and an affidavit accompanied by a letter were provided to Mr Jones.

HIS HONOUR: So this matter has been a live matter since November?

MR RANGIAH: Yes.

HIS HONOUR: It is the Commonwealth's application. Do you support the Commonwealth's application?

MR RANGIAH: There is also an application filed on behalf of my clients. It really stands on the back of the Commonwealth's application. If the Commonwealth's application succeeds - - -

HIS HONOUR: You seek the same relief really?

MR RANGIAH: Yes.

HIS HONOUR: Mr Jones, what Mr Swan says is right. What we are concerned with today is not a complex matter. The issue today really is whether this matter should be remitted to the Supreme Court. Now, that does not require any difficult questions of law to be argued or anything of that kind. It really involves the exercise of a discretion by me after I hear the argument. But that exercise of discretion will be made, I have to advise you, against the background that the High Court has effectively ceased to be a trial court. It does have jurisdiction to hear trials but in general it simply does not do so now.

The pressure of other work, the availability of other courts to do this work, the desirability that the High Court sit generally as a Full Court and hear appeals all militate against the High Court continuing to hear trials. Now, I should tell you that because it is an important background piece of information. But so far as the adjournment is concerned, the application for an adjournment, I refuse that because this is not a complex matter, as Mr Swan says. It is a simple question essentially whether the matter should continue in this Court or whether it should be tried as a trial in another court, that is the Supreme Court. Do you understand what I have said?

MR JONES: Yes, your Honour.

HIS HONOUR: Yes. All right. Well, it is clear enough, Mr Jones, what I have said to you, I think?

MR JONES: Well, yes. It is just that I would like to add that, as the defence said, it is not a complex matter, but in actual fact of having this very comprehensive submissions on behalf of the defence to have the matter remitted in actual fact it is very comprehensive, the arguments they have submitted, and we really do need a considerable amount of time to address that. So that is the main reason why we did apply for an adjournment.

HIS HONOUR: I understand but, Mr Jones, this summons has been a live summons - I know it has only been brought on at relatively short - at very short notice, I accept that, but the summons has been a live summons for quite a long time now.

MR JONES: Yes, your Honour, but the only problem is that the main submissions that I have scanned through briefly is that the Commonwealth state that they have no responsibility.

HIS HONOUR: Well, I am not going to decide that matter today.

MR JONES: No, I realise that but - - -

HIS HONOUR: I mean, that sort of submission is probably just there for the purposes of comprehensiveness, but it is not a matter I am going to decide today.

MR JONES: No.

HIS HONOUR: Yes, all right. Well, Mr Swan, you should proceed then on - - -

MR SWAN: Your Honour, at the risk of sounding at over-insistent, the primary relief the Commonwealth seeks today is to have themselves struck off the writ as a defendant.

HIS HONOUR: Yes, I am sorry. I am conscious of that. I have referred to remitter, but I am conscious that there is an application for strike out as well. I must say so far as that is concerned, if you are going to press that application today, I might have a different view - I am conscious that it is there, but I have a different view about the adjournment you see.

MR SWAN: Yes. Well, your Honour, if we are faced with a choice between having the matter remitted to the Supreme Court and an adjournment in this Court to hear our application for striking out, our preference would be to have an adjournment in this Court, your Honour.

HIS HONOUR: Yes. You are applying, what, to strike out the statement of claim or strike out the action - - -

MR SWAN: No, simply as against the Commonwealth, your Honour. In contrast to what my friend, Mr Rangiah, says, there is a considerable difference between the Commonwealth's position as set out in the summons and the endorsement on the summons and that with regard to the State. There are, in regard to the State, at least some facts alleged against either the State or its employees. In relation to the Commonwealth, there is not one fact alleged.

HIS HONOUR: Yes. Thank you, Mr Swan. Mr Rangiah, what is your attitude? Are you pressing to have the matter struck out so far as your are concerned at this stage?

MR RANGIAH: Only if my friend is - if the application is not struck out against the Commonwealth or stayed against the Commonwealth, then it cannot be against my clients because there are authorities which say that when an application is made under section 75 of the Constitution and the Commonwealth is a party to it, then the High Court also has jurisdiction in respect of any other party.

HIS HONOUR: Yes.

MR RANGIAH: I think your Honour appeared as counsel in one of those authorities, which was a matter of McCauley v Hamilton Island Enterprises.

HIS HONOUR: I remember the case. I cannot remember the details.

MR RANGIAH: So that is why my case really piggybacks, if you like, on the Commonwealth's, but an alternative submission which I propose to make was that if the matter was not struck out or stayed against the State of Queensland and my other clients, then I was going to ask for the matter to be remitted to the Supreme Court.

HIS HONOUR: All right, thank you, Mr Rangiah.

MR RANGIAH: In terms of the application for the adjournment, I have received instructions not to oppose it.

HIS HONOUR: Yes, thank you. Mr Swan, what I am going to do today, I am going to hear the remitter application.

MR SWAN: Yes, your Honour.

HIS HONOUR: I am not going to - - -

MR SWAN: You are not going to adjourn the application to strike out?

HIS HONOUR: No. I am not going to hear the strike-out application. I am going to hear the remitter application because if I make an order for remitter, then everything can be disposed of in the Supreme Court.

MR SWAN: Yes, your Honour.

HIS HONOUR: Mr Jones, what I am going to do today is hear the remitter application, that is to say I am only going to hear one matter and that is I am going to decide whether the case should continue in this Court or whether it should go to the Supreme Court. I am not going to deal with any strike-out application today.

If the matter is remitted, if I decide to remit it, then I will also remit the strike-out application so that it can be dealt with in the Supreme Court as well. If I decide not to remit the matter, I will adjourn the strike-out application and hear the strike-out application at some later date. Is that clear to you?MR JONES: Yes, your Honour.

HIS HONOUR: So all you need concern yourself with today is whether the matter should be remitted or not to the Supreme Court.

MR JONES: Yes, your Honour.

HIS HONOUR: That is clear enough?

MR JONES: Yes.

HIS HONOUR: All right. That is clear to everybody?

MR SWAN: Yes, your Honour.

HIS HONOUR: All right. Mr Swan, I should hear you - did you want to say something, Mr - - -

MR JONES: Well, as a matter of fact, in view of the fact that we just got the submissions at 6.30 last night, we then addressed a few points on the Judiciary Act 1903 regarding remittance.

HIS HONOUR: Yes.

MR JONES: So this is the current one and the rules that govern it.

HIS HONOUR: Thank you. Have you a copy for - - -

MR JONES: They have got copies, your Honour.

HIS HONOUR: Thank you, Mr Jones. Yes, would you like to proceed then on the remitter.

MR SWAN: Yes, your Honour. I read the summons filed by the Commonwealth on 26 October 2000, the affidavit of Baden Edward Powell sworn and filed on that date and the further affidavit of Baden Edward Powell sworn and filed on 28 August 2001. The only submission I have in relation to remitting the matter to the Supreme Court, your Honour, is that contained in the last paragraph of the submission on behalf of the State of Queensland. The authority I would rely on is the Cohen Case referred to in that paragraph, that is Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 at paragraph [39]. That simply endorses what your Honour said a few minutes ago, that the High Court cannot be expected to act as a trial court given its other functions. I have no further submissions in relation to that, your Honour.

HIS HONOUR: Thank you. Mr Rangiah.

MR RANGIAH: Does your Honour have my outline of submissions?

HIS HONOUR: Yes, I do.

MR RANGIAH: I will hand up a copy of the decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473. The relevant passage appears at paragraph [39].

HIS HONOUR: What is the remitter provision?

MR RANGIAH: Section 44 of the Judiciary Act.

HIS HONOUR: Let me just have a look at that. Yes, thank you.

MR RANGIAH: As your Honour has pointed out, there is a broad general discretion as to whether to remit the matter or not. I have not gone through the authorities in detail because my friend Mr Swan's submissions set out the relevant authorities.

HIS HONOUR: Well, it is a question of discretion to be exercised in light of the fact that the Court does not generally do trials - and, indeed, I do not think it has done a trial for a long time - and in light of the fact that the remitter power is there.

MR RANGIAH: The only other matters I wanted to say were that there is no question about the appropriate jurisdiction for the matter to be remitted to and, in fact, in the Supreme Court of Queensland there are proceedings on foot by Mr Jones as a representative plaintiff where the same allegations seem to be made.

HIS HONOUR: Well, it may turn out to be convenient to have orders for those to be heard together or joined or consolidated, something of that kind.

MR RANGIAH: Yes, that is so.

HIS HONOUR: Yes, all right.

MR RANGIAH: Perhaps as a matter of formality I should read my material.

HIS HONOUR: Yes, you read your material, Mr Rangiah.

MR RANGIAH: I read the summons filed on or about 20 November 2000 - I do not have the precise date - the affidavit of Anne Margaret Fry filed on the same date, the further affidavit of Anne Margaret Fry filed yesterday and the affidavit of Paula Penelope Freeleagus filed yesterday.

HIS HONOUR: All right, thank you. Mr Jones, all you need concern yourself with is the remitter. I have read your submissions by the way.

MR JONES: Well, we rely very much on the various sections, particularly the Judiciary Act, dealing with - section 40, I think it is -yes, removals and causes:

REMOVAL BY ORDER OF THE HIGH COURT

40(1) Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court other than the High Court . . . at any stage of the proceedings before the final judgment -

under an application by the - and it says here very clearly the Court has - certainly has a discretion and may - I like that word "may" because it is not a "will" and the thing is this, that it goes on to say that subject to section 38. Now, in the endorsement of our writ, section 38:

EXCLUSIVE AND INVESTED JURISDICTION

SECTION 38 MATTERS IN WHICH JURISDICTION OF HIGH COURT EXCLUSIVE

38 Subject to sections 39B and 44, the jurisdiction of the High Court shall be exclusive . . .

(a) matters arising directly under any treaty.

Well, in our writ we clearly outline - - -

HIS HONOUR: Nobody disputes that the High Court has jurisdiction.

MR JONES: Yes, yes.

HIS HONOUR: Nobody disputes that. The only question is whether the jurisdiction should be exercised here or whether it should be exercised in the Supreme Court, which also has vested jurisdiction.

MR JONES: Well, we submit that this matter should be heard in the High Court because of, one, 38(a), and very more importantly 38(e):

matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court.

Now, we have indicated by letter to both the State and the Federal Government that officers have been in breach of their duty according to statute and we will be seeking a writ of mandamus in the High Court to make sure that the officers in the State and the Commonwealth observe and do their duty according to statutes. Now, that is a very important process of our litigation. It is not as though the defendants are not on notice of it. So that is one of the main reasons why we consider that it should not be remitted to the Supreme Court.

For the last eight or nine years we have had some very serious questions to be answered by the Supreme Court, one being the constructive trusteeship bestowed upon the Crown according to all the numerous statutes and the beneficiaries of that trust are the Aborigines defined by the Act. Now, when the trustees of our property refused to acknowledge our requests, well, the only redress we have is in the court, and we have had a considerable amount of experience, particularly with the State, on their refusal to comply with our requests regarding the misuse of our properties such as the turtles, which is the main action in this thing, and also, more recently, the extermination of the dingoes. Now, the High Court has already ruled that the flora and fauna are the property of the Aboriginals, of our Dalungbara Ngulungbara, so - - -

HIS HONOUR: No. No, that is not what the High Court ruled. What the High Court ruled was that native title rights extended to the capture, consumption and use of flora and fauna. You are referring to Yanner v Eaton, is that correct?

MR JONES: That is right, yes, your Honour.

HIS HONOUR: Yes. The Court does not hold, Mr Jones, that the indigenous peoples actually own the fauna.

MR JONES: Well, I did read your decision in that very closely.

HIS HONOUR: Yes. You know I was in the minority though, do you not?

MR JONES: But what I am getting at, your Honour, is that whereas just earlier the defence for the Commonwealth said that the Commonwealth had no jurisdiction, but on our endorsed writ I clearly pointed out that under the current Commonwealth Environment Protection and Biodiversity Conservation Act 1999 the Commonwealth has a responsibility in a World Heritage park and, two, the State under the Nature Conservation Act Queensland 1983. So we have two laws which rule prevails when it comes to nature of conservation? That is the reason why under section, I think it is - is it 76 or 75 of the Constitution, where there are laws between the States, well, then it must be determined in the High Court. We cannot really go back to the Supreme Court and then argue about whether the Commonwealth's laws - - -

HIS HONOUR: Mr Jones, all I have before me at the moment is your writ - - -

MR JONES: Well, it is rather brief, your Honour, yes.

HIS HONOUR: - - - in which you have a money claim for $285,000 - - -

MR JONES: Yes.

HIS HONOUR: - - - and then you simply want the Court to determine which of the defendants is liable. That is the only relief you claim in these proceedings. It is a claim in detinue - - -

MR JONES: Well, your Honour, I did - - -

HIS HONOUR: - - - and for money, I think, is that not right?

MR JONES: Yes, yes, but there is also the relief when you read the statement of claim which is very comprehensive, 70 pages, there is quite a considerable amount of relief sought in the statement of claim and - - -

HIS HONOUR: Yes. Is there a claim for mandamus? Is there a claim for mandamus?

MR JONES: No, no, but we have warned and notified the State that we will be seeking a writ of mandamus.

HIS HONOUR: I know, but do you know why I ask you that, because all of the other claims that you make are within section 38(a), (b), (c) and (d). You have not a claim within 38(e) of the Judiciary Act.

MR JONES: Not yet, but will be - - -

HIS HONOUR: No, but you have not at the moment and all I can look at is what you - - -

MR JONES: But the other one we rely on is section 60, too, as well.

HIS HONOUR: Section - - -?

MR JONES: Section 60:

In a suit against a State brought in the High Court, the High Court may grant an injunction against the State and against all officers of the State and persons acting under the authority of the State, and may enforce the injunction against all such officers and persons.

Now, we have notified the people that we will be seeking a writ of mandamus against officers of both Commonwealth and the State for failure of doing their duty according to statutes.

Now, this is a matter that both defendants are vigorously opposed to and, of course, it cannot really be settled unless in the High Court, otherwise - we have had 10 years of experience now in the Supreme Court, having to go through appeals and so forth on decisions and the advice that I have received to date is that if it is remitted back to the Supreme Court, the only future we can see is then going through a long protracted appeals in the appeal court of the Supreme Court and then, of course, in the High Court.

HIS HONOUR: But, Mr Jones, that is what happens to all litigants these days. I mean, the days of bringing trials and bringing actions in the High Court and having the High Court decide contested matters of fact and single Judges sitting for long periods on trials are gone. The case of Cohen to which Mr Rangiah and Mr Swan have referred makes that clear. We just cannot do it now. We have of the order of 500 applications for special leave every year - almost 500. It is an enormous volume of work and, in addition to that, we have our appeals; as you say, some single Justice work in relation to mandamus and certiorari, prohibition, but by and large we just cannot do that work any more, really.

MR JONES: Your Honour, appreciating that viewpoint, the question of our proposed writ of mandamus to get a court order to direct the officers of both the Commonwealth and the State, I have read the Supreme Court Rules on that and it is very vague and ambiguous. The only definite writ of mandamus - - -

HIS HONOUR: That may be in a different category, Mr Jones. It may be; I am not saying it is but the constitutional writs are a matter of application to the High Court and the Constitution and there are all sorts of different considerations in relation to them. But you do not have that application now and all I can deal with is what you have before the Court now, and you do not seek any constitutional writs at present. In these proceedings, you would need leave before you could add a further claim or you would need to bring other proceedings. At the moment, you do not have those proceedings and all I can deal with is the proceedings that are before me. Is there anything further you would like to say?

MR JONES: No, your Honour. I admit that the only notification we made to the defendants was by letter stating about the writ of mandamus but we thought that when the writ was filed in the first instance, relying on section 75 and 76 of the Constitution, that there was ample jurisdictional power bestowed upon the High Court to hear this matter anyway. So, we thought that was sufficient.

HIS HONOUR: I do have jurisdiction to hear it but the question is whether I should hear it, and that is what we are talking about.

MR JONES: The reason why, as referred earlier, the defence said that the matter has been going on for quite some considerable time but I did notify the defence on numerous occasions that we will be supplying our statement of claim in due course, which we did in March this year and, of course, since that time there has been ample opportunity for the defence, both the State and the Commonwealth, to put in a defence but they actually have not to this date. In other words, under Order 22 rule 6 they are out of time. So we are in the process now of preparing our application for a summary judgment.

HIS HONOUR: That application, if the matter is remitted, can be dealt with in the Supreme Court.

MR JONES: That might be so, your Honour. The thing is this, that we are already in the Federal Court on the matter of the extermination of the dingoes and that - - -

HIS HONOUR: All the more reason, you know, that all of these matters should be consolidated and heard together if at all possible. But let me tell you this, Mr Jones, they are not going to be consolidated and all heard in the High Court. That is just not going to happen.

MR JONES: Yes, fair enough. Well, what about if it was remitted to the Federal Court rather than the Supreme Court?

HIS HONOUR: Well, that is not the application before me.

MR JONES: All right. Well, of course, we submit that we would prefer to be remitted to the Federal Court.

HIS HONOUR: Yes. All right, is there anything further you want to say?

MR JONES: No, your Honour.

HIS HONOUR: Thank you. Mr Swan, what about the Federal Court? Is there any reason why the matter should go - - -?

MR SWAN: Your Honour, there is this, that ultimately the Commonwealth hopes to be removed as a defendant in the manner and therefore it is a question of the convenience or the preference of the State of Queensland as to the jurisdiction they might like to proceed in.

HIS HONOUR: I was told the other day, probably unreliably because these things are sometimes the subject of unreliable talk, that there are not, however, a large number of cases on the civil list in the Supreme Court; that, in fact, it is not difficult now to get a fairly speedy trial in the Supreme Court.

MR SWAN: My impression is probably less reliable than your Honour's, but it would be to the same effect, that the matter is probably likely to be heard more quickly in the Supreme Court than in the Federal Court in Brisbane.

HIS HONOUR: Yes. I do not know the state of the Federal Court list but I think there are a number of native title claims in the Federal Court.

MR SWAN: Quite a considerable number.

HIS HONOUR: You would know about them, I would think, Mr Swan.

MR SWAN: I read the law list, your Honour.

HIS HONOUR: Yes, but your office would be - - -

MR SWAN: Our office is involved in a large number of those but certainly by no means all of them.

HIS HONOUR: No. It is your impression that there are a lot of cases of that kind on the list.

MR SWAN: Certainly a lot of native title cases and a lot of other sorts of litigation in the Federal Court, your Honour, which makes it difficult to get a trial date at a relatively early stage.

HIS HONOUR: And, of course, Mr Jones has proceedings on foot in both courts, has he not, both the Federal and the Supreme?

MR SWAN: I am not aware of any proceedings by Mr Jones in the Federal Court, your Honour.

HIS HONOUR: He has had them.MR JONES: Yes, your Honour. I am sure - - -

HIS HONOUR: Are they over, Mr Jones?

MR JONES: No. In fact that is one of the main reasons why, if we have a choice, we would prefer to have it remitted to the Federal Court because in both instances there was a very expedient hearing. It was not delayed or anything.

HIS HONOUR: Yes, but it was an interlocutory hearing though, was it not, Mr Jones?

MR JONES: Yes, your Honour, I realise that.

HIS HONOUR: It was not final relief, was it?

MR JONES: No, no.

HIS HONOUR: All courts will give you, I think, an urgent hearing if it is interlocutory and if it is urgent. It was urgent because you wanted to stop the culling of the dingoes which was actually occurring at the time, I think, is that not right?

MR JONES: Yes, your Honour. The other thing too, of course, is being at a slightly higher judiciary level than the Supreme Court - - -

HIS HONOUR: No, it is not.

MR JONES: It is not? It is exactly the same, is it?

HIS HONOUR: It is not a higher level at all. It is just a different jurisdiction.

MR JONES: Just jurisdiction.

HIS HONOUR: It is not a question of one being higher than the other. Each is a superior court. In fact, the Supreme Court has a much larger jurisdiction, generally, than the Federal Court. The Federal Court is a statutory court.

MR JONES: Well, your Honour, it was pointed out that the - native title claims but I really must reiterate that our action is certainly not under the Native Title Act.

HIS HONOUR: No, I only mentioned them, Mr Jones, because I had an impression that there may have been a lot of them on the Federal Court list and for that reason the Federal Court might not be able to deal with your matter as quickly as the Supreme Court. I was not suggesting that your's was a native title matter.

MR JONES: Yes, your Honour.

HIS HONOUR: Mr Rangiah, is there any reason why the matter should go to one or the other court?

MR RANGIAH: Yes, In my submission, your Honour, the matter should be remitted to the Supreme Court of Queensland. First of all, it is the natural and appropriate forum for a claim in detinue, trespass to goods, defamation and false imprisonment.

HIS HONOUR: Yes, the Federal Court would not ordinarily have jurisdiction in those matters, would it?

MR RANGIAH: No. The only way it could possibly acquire jurisdiction is if the Federal Court stands in the jurisdictional shoes of the High Court as it has been put in one of the cases but then, I think, that is an issue of some controversy.

HIS HONOUR: That is your submission. Your submission is that in the ordinary course the Federal Court would not entertain these sorts of causes of action.

MR RANGIAH: That is so, and then if Mr Swan makes an application which succeeds in the Federal Court for the proceeding to be struck out against his client, then the State of Queensland is left with proceedings in the Federal Court and would no doubt - - -

HIS HONOUR: And there is a related matter in the Supreme Court, is that correct?

MR RANGIAH: Yes, that is so. The same allegations have been made in another statement of claim issued there.

HIS HONOUR: All right. I do not need to hear you any further.

I intend to remit this matter to the Supreme Court of Queensland. I propose to do that because the High Court does not ordinarily function these days as a trial court. The Supreme Court is, I think, the appropriate forum because the causes of action in the writ are causes of action which would ordinarily be tried in the Supreme Court.

I would make it clear, however, that I am remitting all of the proceedings in this matter to the Supreme Court, including the strike out application, and it will be a matter for the Supreme Court how that is dealt with just as it will be a matter for the Supreme Court to whether leave should be granted to add or amend any causes of action or any pleadings that have been delivered.

Is there anything further?

MR SWAN: Nothing further, your Honour.

HIS HONOUR: Mr Rangiah?

MR RANGIAH: Nothing further, your Honour.

HIS HONOUR: Now, nobody seeks and it would not be appropriate to make any order for costs today, I do not think. That is correct, is it not?

MR RANGIAH: I make no application in respect of costs.

MR SWAN: Likewise, your Honour.

HIS HONOUR: Do I need, Mr Swan, to certify for counsel though?

MR JONES: Your Honour, we do submit that we should have costs awarded to us because of the fact that we were put to, at very short notice, an enormous amount of effort and as I repeatedly notified both the State and the Commonwealth in previous hearings, as a - - -

HIS HONOUR: But, Mr Jones, that effort will not be wasted because I have not disposed of the strike-out application.

MR JONES: All right, your Honour, we can - - -

HIS HONOUR: Let me make it clear: I make no order as to costs. All right, nothing further?

MR SWAN: Nothing further, your Honour.

HIS HONOUR: Yes, thank you. Call the next matter, please.

AT 10.44 AM THE MATTER WAS CONCLUDED