...Justice Moynihan's Task...
Justice Moynihan's task was in some respects an unusual one for a judge, in that his inquiry was limited to determining only the factual disputes between the parties. The questions of law were to be left to the High Court. Justice Moynihan has described the case in the following terms:
'the case pleaded and particularised was claims by the various individual plaintiffs in respect of very specific pieces of land or areas of sea or reef. And their claims, their individual claims, were founded on chains of descent... for example, I'm Eddie Mabo, I claim this piece of land which is situated here, which has this description and I claim it because I was adopted into a particular family and there is a line of descent. And in that sense it was almost a series of mini cases in respect of each piece of land claimed by each plaintiff...'
'So your task was really to determine whether what Eddie Mabo and the other plaintiffs said was correct or true or not?'
'Well, it was that and - and in a sense that's always a task when you're dealing with contested factual accounts of things. But it was also to, as it were, sift and refine and decide on the basis of all the evidence. Not only what people like Eddie Mabo said - but there was a whole lot of other evidence. And [the task was] to reach a series of factual conclusions which the High Court could then decide represented a system or a relationship with land and whether or not that should be recognised by Australian law. So there was the double, if you like, aspect of it.'
In his Determination of Facts, produced in November 1990, Justice Moynihan expressed some frustration at the demarcation between issues of law and fact which his role required him to observe:
'I am determined to conclude my role in dealing with the remitter of 27 February, 1986 on a personal -and hence it might be thought by some an unjudicial - note. I have found the experience of dealing with the remitter both enriching and rewarding. The process is, however, essentially both unsatisfactory and unsatisfying. This may perhaps ultimately be because adversarial litigation is not apposite to the resolution of issues which arise as a consequence of the proceedings brought in the High Court. More immediately however, the process is unsatisfactory because a remitter restricted, however widely it is expressed, to issues of fact has the consequence that the ultimate issues in the action are not really addressed either in the course of hearing the remitter or its determination. As I understand, and have experienced it, the role of a Judge at first instance is to determine the issues of fact and law in the action - and hence the action. They seem to me to be inextricably interwoven. The experience has been unsatisfying because it seems to me that is the very thing that the terms of the remitter have prevented me from doing.'
(Mabo v Queensland and the Commonwealth Determination of Facts [unreported] at p227.)
Keywords: Mabo Case, Mabo, Edward Koiki, Moynihan, Justice Martin, 1989-1990
Justice Moynihan interviewed by Trevor Graham, 1996.
Author: Kenna, Jonathan
Source: Moynihan, Justice