Yougarla &Ors v The State of Western Australia & Anor P60/2000 [2001] HCATrans 9 (5 February 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P60 of 2000

B e t w e e n -

CROW YOUGARLA, BILLY THOMAS, MONTY HALE, NORTON WILLIAMS and FRANK FRENCH

Appellants

and

THE STATE OF WESTERN AUSTRALIA

First Respondent

THE ATTORNEY GENERAL OF WESTERN AUSTRALIA

Second Respondent

Directions hearing

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 5 FEBRUARY 2001, AT 12.08 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: Your Honour, I appear with my learned friend, DR S.C. CHURCHES, for the appellants. I am sorry to say I do not know that Dr Churches is here at the moment. He is expecting to be here a little later. (instructed by Dwyer Durack)

HIS HONOUR: The planes are in disarray this morning.

MR JACKSON: No, he is in the building, your Honour.

HIS HONOUR: He is in the building?

MR JACKSON: Yes. I just do not think I have him at the moment.

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia. May it please your Honour, I appear on behalf of the State of Western Australia with my learned friend, MR S.J. WRIGHT. (instructed by the Crown Solicitor for Western Australia)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: Your Honour, MS A.K. LUKEMAN will be appearing for the Commonwealth in the matter, and she was going to be here at 12.45. Unfortunately, I do not know if we are intervening, not intervening or not decided whether to intervene. (instructed by the Australian Government Solicitor).

HIS HONOUR: At this stage, we are just getting the record in order.

MR BENNETT: Yes, if your Honour pleases.

HIS HONOUR: Yes. Well, subject to anything either party wants to say, in my view the record should be expanded to include these additional materials. Am I right in thinking the additional materials in the appeal books in the Full Court in Western Australia were pages 130 to 515? Does that sound right?

MR MEADOWS: I do not have the appeal books from that matter, your Honour.

HIS HONOUR: That is easily done. Just a moment.

MR MEADOWS: But it sounds approximately right. We have been going by the documents referred to in the - - -

HIS HONOUR: Draft index, yes.

MR MEADOWS: - - - draft index, which are said not to be included in the books.

HIS HONOUR: Yes.

MR MEADOWS: We are content to limit the documents to those that are referred to in paragraphs 11, 12, 13 and 14 of the index as settled by the Registrar.

HIS HONOUR: Eleven?

MR MEADOWS: Yes.

HIS HONOUR: Just a minute.

MR MEADOWS: It is at page 2 of the list, documents under number 11, 12, 13 and 14.

HIS HONOUR: Yes, I see, 11, 12 - yes. I think that is covered by those pages I mentioned.

MR MEADOWS: Yes, I believe it would be, your Honour.

HIS HONOUR: Yes. Now, there was some suggestion from the other side that they would wish some other materials to go in as well.

MR JACKSON: Yes, your Honour.

MR MEADOWS: We do not oppose that, your Honour, I might say.

HIS HONOUR: No.

MR JACKSON: The document that I think is not included in those is the one referred to in paragraph 3(a) of our submissions. Paragraph 3(b) is included in the documents to which my learned friend has just referred.

HIS HONOUR: Yes. How bulk is 3(a)?

MR JACKSON: A couple of pages, your Honour.

HIS HONOUR: Do not worry, Mr Jackson.

MR JACKSON: Not many pages, your Honour. It is just that.

HIS HONOUR: Now, the other thing, Mr Solicitor, that worried me at the moment was looking at the appeal book in the Full Court - I know it has been a mammoth photocopying enterprise there and some of these materials are in handwriting - I am not at all clear that the copying is all that legible in all circumstances.

MR MEADOWS: Yes.

HIS HONOUR: Can you have that checked that before the record here is finalised to make sure we do have copies we can all read and understand?

MR MEADOWS: We have been conscious of that, your Honour, and we do have some transcriptions of some of the handwritten material.

HIS HONOUR: Yes, that is what I thought. If need be, they can be simply interleaved.

MR MEADOWS: Yes, thank you, your Honour.

HIS HONOUR: All right. In the Yougarla matter all that I should do then is to direct that the record be supplemented by including what is presently indicated in the index as items 11, 12, 13 and 14, recopied with transcriptions as appropriate, together with the additional material referred to in paragraph 3(a) of the submissions for the appellants dated 29 January 2001. The additional material should appear as a supplementary volume of the appeal books, and costs of today's matter should be costs in the appeal.

All right. I will adjourn then until the other matter is ready.

AT 12.13 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.52 PM:

MR H.C. BURMESTER: Your Honour, I am going to represent the Attorney-General for the Commonwealth in this matter. (instructed by the Australian Government Solicitor)

HIS HONOUR: Yes, thank you, Mr Burmester. Now, the record has been sorted out, the matter has been fixed for a day and a half on 27 and 28 March. Now, that was on the footing - and I hope counsel appreciate this - that the manner and form argument will be dealt with first and, if it is necessary, then to deal with the other issues, so be it, but that will be on another day.

MR MEADOWS: Can I just mention one matter, your Honour?

HIS HONOUR: Yes.

MR MEADOWS: That is with regard to our argument concerning section 106 of the Constitution. That may have a bearing on the manner and form component.

HIS HONOUR: It may, yes. I understand that. But in so far as it has that bearing, it will be dealt with as part of the manner and form argument at that stage. Now, I am not sure the Commonwealth has a right of intervention in the manner and form argument.

MR BURMESTER: Well, your Honour, the 78B notice has issued. If manner and form does intrude into section 106, that we may well have an interest.

HIS HONOUR: It sounds like it, yes. When are we going to know what the Commonwealth is going to do?

MR BURMESTER: Now we know how the case is to proceed, your Honour, I will endeavour to get a very quick decision, but, as it sounds like, that even if manner and form is taken separately, there will be a possibility that section 106 at least will be dealt with, I would expect there is more likelihood than not that the Attorney would be there.

HIS HONOUR: The parties are anxious to know how much of their time you are going to eat up by some last-minute decision.

MR BURMESTER: Your Honour, I think, from what has been said in relation to section 106, the Attorney-General is likely to be there, but he obviously would have interest only in dealing with that issue. He certainly, as far as I know at present, would not wish to deal with all the manner and form issues, the construction issues. So in that sense he would have a limited role.

HIS HONOUR: Yes, thank you. Yes, gentlemen, is there anything - - -

MR JACKSON: Yes. Your Honour, I was going to raise one matter arising out of what your Honour has just said, and that is in relation to the content of the written submissions. A question does arise about the ambit of the written submissions for the purposes of that hearing. Could I in that regard say that there may be a question about which party bears such burden as there may be in relation to these issues? But I was really seeking to inquire if your Honour was requesting that our submissions cover all aspects or simply cover those that are to be the subject of that hearing.

HIS HONOUR: At this stage, just the manner and form argument, I would think, unless the Solicitor for the State has another view. Is there much more involved

in doing the submissions for the whole lot? There is, is there not?

MR MEADOWS: Yes. Yes, there is. There is a substantial amount, your Honour. And if we are going to split, then I would suggest we ought to split the submissions, as well.

HIS HONOUR: Yes. There will be sufficient in the judgment of the Full Court for this Court to be apprised in a general way of what the other issues in the case are, I would think. Yes, well, I think that should be done. Is it possible to give directions now about the written submissions, about timing?

MR MEADOWS: It would be, your Honour. At the moment it is just under the practice direction.

HIS HONOUR: Yes, I am just worried about the last minute intervention by the Commonwealth, that is what worries me. When can we know what the Commonwealth is going to do, Mr Burmester? You cannot lurk there hermit-like forever.

MR BURMESTER: Your Honour, I can undertake after today's hearing to immediately put a submission to the Attorney seeking a formal decision.

HIS HONOUR: You see, 27 March is not that far away, really.

MR BURMESTER: But I would not expect it would be a long delay to get a decision from the Attorney, 10 days, two weeks. So I think your Honour can proceed to set a timetable and we will fit ourselves around that, and if it requires us to make a quick decision, then so be it.

HIS HONOUR: Yes. All right. Well, need I give any directions outside the Rules about the filing of submissions beyond confining them to the matter and form argument?

MR JACKSON: Our submissions, your Honour, presently are due, I think, on 16 March. We are happy to have an earlier time provided, and if your Honour were to make it, say, a week earlier than that, that might give a little more lead time.

HIS HONOUR: What do you say, Mr Solicitor?

MR MEADOW: I think we can be accommodating however you wish to proceed, your Honour.

HIS HONOUR: What I propose, gentlemen, is the written submissions for the appellants on the manner and form question and so far as is necessary on any section 106 point that is connected with the manner and form point on or before 9 March 2001. The respondent's submissions, likewise, on or before 16 March; any submissions by the Commonwealth as intervener on or before 21 March, and any reply by the appellants to the respondent's submissions and any response by either party to the Commonwealth's submissions on or before 26 March.

MR MEADOWS: If I might say, your Honour, if we are going to deal with this section 106 point, that some of the States may wish to intervene.

HIS HONOUR: Yes, that is right. Well, 3 should say, "Not only by the Commonwealth" but "by any State" "on or before the 21st", and the reply by Mr Jackson, and then reply by either of you as need be to any that has come from interveners by the 26th. Costs, as indicated before, will be costs of the appeal.

Is there anything else, gentlemen, that could be done? Very well, the Court will adjourn until 3 pm.

AT 1.01 PM THE MATTER WAS CONCLUDED