...Gibbs C.J...

ORDER

Gibbs C.J. in Chambers, 27th February 1986.

1. Remit all issues of fact raised by the pleadings, and the particulars and the further particulars to the Supreme Court of Queensland for hearing and determination;

2. Each party to deliver a list of any documents relied upon by it at the hearing which have not already been discovered by it to be other parties and to make the same available for inspection by 30th June 1986,

3. Grant liberty to any party to apply on two day's notice to the other party.

4. Costs of the present appearance reserved.

5 . Certify for Counsel.

GIBBS C.J. : This action is brought by the plaintiffs who are Murray Islanders, and who claim that they are respectively the owners by custom the holders of traditional native title and the holders of usufructuary rights to particular areas of land on the islands of Mer, Dawar, and Waier, which are situated in Torres Strait and form part of the State of Queensland. The defendants are the State of Queensland and the Commonwealth. It would serve no useful purpose to set out in detail the allegations in the statement of claim or to describe fully and precisely the nature of the plaintiffs' claims, but it Is necessary to indicate the general nature of the action. The plaintiffs claim, inter alia, declarations that they are the owners (which term for convenience I shall use to include holders of traditional native title and usufructuary rights as well as owners by custom) of the respective lands in the islands, that the State of Queensland Is not entitled to impair their ownership, and alternatively, that the State is not entitled to impair that ownership without compensation, otherwise than in accordance with a law of Queensland which expressly provides for acquisition or impairment of such interests without the payment of compensation, and In the further alternative, that the plaintiffs are entitled to compensation for any impairment of their rights in their respective lands. Various injunctions are sought, including (1) an injunction to restrain the State from taking any step pursuant to the Land Act 1962 (Q.), as amended, or otherwise to cause the islands to cease to be a reserve or part thereof for the purposes of that Act or for the purposes of the Torres Strait Islanders Act 1971 (Q.), as amended, or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth) or for the purposes of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-Management) Act 1978 (Cth); (2) an injunction to restrain the State from taking any such step without compensation, otherwise than in accordance with a law of Queensland which expressly provides for such conduct without payment of compensation; (3) an injunction to restrain the State from granting the islands by way of deed of grant in trust under the Land Act 1962 (Q.); and (4) an injunction to restrain the State from granting the islands by way of such deed of grant without the payment of compensation to the plaintiff.

A declaration is sought that the Queensland statutes just mentioned, and certain other Queensland statutes are inconsistent with certain laws of the Commonwealth and are invalid. The statement of claim includes a claim for a declaration that in so far as the Commonwealth has impaired
2.
the ownership by custom, the traditional native title or the usufructuary rights of the plaintiffs with respect to their respective lands without compensation, such conduct amounts to an acquisition of property otherwise than on just terms and is beyond the power of the Commonwealth. However, the statement of claims does not reveal what actions of the Commonwealth are challenged by this claim for a declaration, although it may perhaps be surmised that what is sought to be brought in question is some assertion by the Commonwealth of its right and title to the sea, sea-bed and fringing reefs. Defences have been filed by both defendants and the plaintiffs have demurred to the amended defence delivered by the State of Queensland.

The parties have attended before me and have indicated that they wish the issues of fact raised by the pleadings, the particulars and further particulars to be remitted for hearing and determination and the only question for my decision is whether the remitter should be made to the Federa1 Court (as the plaintiffs contend) or to the Supreme Court of Queensland (as the State of Queensland contends). The Commonwealth is neutral on this question and made no submissions upon it.

It is hardly necessary to say that either of the two courts could satisfactorily resolve the issues of fact in the case. Mr Castan, who appeared for the plaintiffs, relied on two particular matters which in his submission indicated that the Federe1 Court was the more appropriate tribunal. First, he submitted that the Rule of the Federal Court give that court a wider power to dispense with the rules of evidence than that possessed by the Supreme Court of Queensland. He pointed to 0.33 r.3 of the Federal Court Rules, which provides :

"The Court may at any stage of the proceedings -

(a) dispense with compliance with the rules
of evidence for proving any matter which
is not bona fide in dispute; or

(b) dispense with compliance with the rules
of evidence where such compliance might
3.

occasion or involve unnecessary or unreasonable expense or delay, including, but without limiting the generality of this power, compliance with the rules relating to proof of handwriting or of documents and the proof of the identity of parties or of authority."

Under the Rules of the Supreme Court of Queensland, a party to an action may take out a summons for directions at any time before judgment (0.20 r.l (l)) and upon the hearing of the summons the court or a judge or registrar may give such directions with respect to the proceedings as the court or judge or registrar thinks proper (0.20 r.2(1)). Order 20 r.2(2) then provides, inter alia:

"Without prejudice to the generality of the last preceding paragraph, the Court or a Judge or registrar may -

(b) order that evidence of a particular fact or facts, to be specified in the order, shall be given at the hearing or trial "

(i) by statement on oath of information and belief;
(ii) by production of documents or entries in books;
(iii) by copies of documents or entries;
(iv) otherwise as the Court or Judge or registrar directs

The present case may involve a consideration of public records and other old documents, but Mr Castan was not able to give any example of a situation in which expense or delay might be obviated by an order under the Federal Court Rules but could not be obviated by an order under the Rules of the Supreme Court of Queensland. I do not consider that for practical purposes the Federal Court is put In any position of advantage over the Supreme Court of Queensland by reason
4.

of the difference between the Rules of the two courts - a difference which seems to me to be mainly one of words and which in any case has not been shown to be likely to be significant in the present case.

Mr Castan's second point was that the counsel presently engaged In the case on behalf of the plaintiffs, who are not Members of the Queensland bar might not be entitled to appear in the Supreme Court of Queensland if the action is remitted to that court. That argument, however, is groundless. If part of the matter is remitted to the Supreme Court of Queensland, that court will be exercising federal jurisdiction in hearing it. Any person entitled to practice as a barrister or solicitor, or as both, in a federal court will then have a right of audience in the State court in the matter: s.55B(4) of Judiciary Act.

Mr Byrne, for the State of Queensland, on the other hand, pointed out the close connection which the action has with the State of Queensland - the plaintiffs are residents of Queensland, the subject-matter of the action is land in Queensland and the principa1 relief is sought against the State of Queensland. If the action had not been commenced in this Court, the only available forum would have been the Supreme Court of Queensland. There would be no power to remit the matter to the Federal Court under s.66(1) of the Judiciary Act, because the Federal Court has no jurisdiction with respect to the subject-matter of the action. Power exists to remit the matter to the Federal Court under s.44(2A), but only because the Commonwealth is a party, and as I have indicated the interest of the Commonwealth in the matter appears to be to be minor compared with that of Queensland.

When a decision is to be made as to the court to which a matter or part of a matter should be remitted under s.44 of the Judiciary Act, and the applicable law in the competing tribunals is substantially similar, the balance of convenience is of great importance: Pozniak v. Smith (1982) 56 A.L.J.R. 707, at p.711; 41 A.L.R. 353, at pp.358-9. However, in the present case, it has not been shown that proceedings in one court would be more convenient than in the other. There will be no difference in the substantive law to be applied, and the one suggested difference between the respective powers of the two courts has not been shown
5. Gibbs C.J.
to be significant. In these circumstances, the considerations upon which Mr Byrne relies appear to me to be decisive. The close connection of the action with Queensland, and the fact that if the action had not been commenced in this Court it would necessarily have been commenced in the Supreme Court of Queensland, lead me to exercise my discretion in favour of ordering a remitter to the Supreme Court of Queensland.

The parties agreed that any question whether the determination of the particular issues raises a question of fact or a question of law should be reserved for the determination of this Court. I hope that the proper course of proceedings in the Supreme Court will not be interrupted by applications to this Court. However, to enable this Court to give any directions that may prove to be necessary in that or any other respect, I shall reserve liberty to apply.

I order as follows :

1) Remit all issues of fact raised by the pleadings and the particulars and the further particulars to the Supreme Court of Queensland for hearing and determination.

2) Grant liberty to any party to apply on two days' notice to the other parties.

3) Costs of the present appearance reserved.

4) Certify for counsel.

Keywords: Gibbs, Chief Justice, High Court of Australia, Mabo Case, Supreme Court of Queensland, 1986

Copy of judgement of Gibbs C J, remitting the factual matters to the Queensland Supreme Court.
Author: Kenna, Jonathan