...Submissions to Justice Deane...
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B12 of 1982
B e t w e e n -
EDDIE MABO, DAVID PASSI and JAMES RICE
(who bring this action on their own behalf and on behalf of the members of their respective family groups)
Plaintiffs
and
THE STATE OF QUEENSLAND
First Respondent
and
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
Directions hearing
DEANE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 13 FEBRUARY 1987, AT 10.16 AM
Copyright in the High Court of Australia
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MR A.R. CASTAN, QC: May it please Your Honour, I appear for the plaintiffs with my 1earned friends, MRS B.J. HOCKING and MR B.A. KEON-COHEN. (instructed by Mclntyre & Co)
MR G. GRIFFITH, QC, Solicitor-General of the Commonwealth: If the Court pleases I appear with my learned friend, MR R.W. GOTTERSON for the second-named defendant. (instructed by the Australian Government Solicitor)
MR G.L. DAVIES, QC: May it please Your Honour, I appear with my learned friend, MRS MARGARET WHITE, for the first-named defendant. (instructed by the Crown Solicitor for Queensland.
MR CASTAN: I am not sure if Your Honour has had the opportunity to read the affidavit that had been sworn?
HIS HONOUR: Yes, I have looked at it. I have great trouble seeing what it is all about though, I must confess, Mr Castan.
MR CASTAN: Well, we could perhaps shortly endeavour to explain what has occurred and...
HIS HONOUR: Excuse me, I am just looking for the file. Well, perhaps the first question I might ask is is there a contest or is there agreement at the bar table?
MR CASTAN: I am not sure of the answer to that at this stage, Your Honour
MR DAVIES: Well, I can say for our part there is a contest, Your Honour.
MR GRIFFITH: Well, Your Honour, there is really not much need for me to say anything because we...
HIS HONOUR: Well, you cannot say there is not a contest, Mr Solicitor.
MR GRIFFITH: No. We have made it clear in previous chamber applications before His Honour the previous Chief Justice that we tended to abide a bit by the result in these things except express short opinion when invited to do so, Your Honour.
HIS HONOUR: Yes, Mr Castan.
MR CASTAN: Your Honour, the stage we are at in these proceedings is that proceedings were issued some years ago. In brief, an attempt was...
HIS HONOUR: You can assume that I have read the documents filed in relation to this morning apart from the exhibits to the last affidavit which was, I think, your client's affidavit, Mr Davies; that I understand what the case is about and that I understand the background.
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My comment was directed to why we are here today which I do not fully understand.
MR CASTAN: Yes, and I can come to that fairly briefly. Before doing that could I simply mention one correction to the affidavit which has been filed on behalf of the plaintiffs and that is that it appears - and I say this because it involves me, Your Honour - at page 3 in paragraph 8 of Mr McLachlan's affidavit, in the fifth line of paragraph 8, there is a reference to the opening of the plaintiffs' case. It says:
The opening of the plaintiffs' case occupied some 17 days of hearing -
Does Your Honour see that?
HIS HONOUR: Yes.
MR CASTAN: That is incorrect, Your Honour. I do not think I am capable of doing that. It in fact occupied some four to five days of hearing. It may have seem to some like it was 17 but, in fact, it was four to five days.
HIS HONOUR: Well, would you like me to make that minor adjustment?
MR CASTAN: If Your Honour would.
HIS HONOUR: Well, I will cross out "17" and, what, put... ?
MR CASTAN: "Five" perhaps, we could agree on without much dissent, I think. It was spread over different days.
HIS HONOUR: I would have thought you would have been better advised not drawing attention to it.
MR CASTAN: Well, the "17" struck us as somewhat outlandish, Your Honour. And, for what it is worth, a good part of that five involved the documents because what had happened was that there had been agreement on admission of documents so there is a long examination of historical documents.
HIS HONOUR: Let us not trouble with that.
MR CASTAN: Your Honour, the stage we are at is that the matter was remitted by order of His Honour the previous Chief Justice last year for hearing on issues of fact in the Supreme Court of Queensland and it duly came on for hearing on those issues of fact in October last year. The hearing commenced and in the course of the hearing and in the course of calling evidence from the first witness who was the first-named plaintiff, objections were taken to evidence sought to be led. It was contended by the defendant's counsel, objecting to the evidence, that the evidence was of the nature of hear say or was irrelevant or the other various objections that were taken. His Honour, for the most part, did not rule
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progressively as those objections were taken although he Invited what was in the nature preliminary outlines of what the issues might be that would bear on the question of the admissibility of particular items of evidence.
HIS HONOUR: Well, have the issues of fact between the parties been defined?
MR CASTAN: The evidence in still in course of running, Your Honour.
HIS HONOUR I appreciate that but if His Honour is dealing with those issues of fact, have the parties defined what those issues of fact are?
MR CASTAN: They have not been separately defined except within the framework of the pleadings. The pleadings are closed and there are clearly defined claims of factual assertion in very great detail by the plaintiffs and admissions or non-admissions or denials in great detail in the course of a number of documents on those facts by the defendants. So, they are defined...
HIS HONOUR: So, there is no doubt that His Honour is determining defined issues of fact?
MR CASTAN: No, none whatsoever, Your Honour; in fact...
HIS HONOUR: The query being whether, in determining them, he can pay regard to hearsay evidence and, in some respect whether particular evidence is relevant to them.
MR CASTAN: In broad terms though, we would contend that the question goes much further than that because we would contend that much of what is objected to as hearsay is not, in truth, hearsay at all. It is evidence of, what one would term, oral events.
HIS HONOUR: Yes, I understand that.
MR CASTAN: That is to say, a statement made which itself is admissible as evidence of the fact of the making of the statement.
HIS HONOUR: Well, where has His Honour gone wrong?
MR CASTAN: Well, His Honour, so far, has, in substance, not decided any of those issues of the law of evidence. What he has done - although in the course of running, objections have constantly, of course, been taken and much debate has gone on which has perhaps made the course of evidence slower than it might be if there were simply objections at large and deferral of the question of admissibility. But nevertheless, in substance His Honour has simply deferred the rulings on the questions of evidence and admissibility and, in substance evidence has been received over a period of some seven
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o- hearing. Now, what His Honour has then done is to set down for the 23rd of this month a hearing which is not to be a continuation of the evidence but is to be a hearing on arguments about the law of evidence and the applicability of rules of evidence to the evidence so far received, subject to objection.
HIS HONOUR: And as to what course His Honour should take?
MR CASTAN: Yes, argument as to what course His Honour should take and argument as to whether or not the evidence is admissible and His Honour has invited the parties to prepare detailed submissions on all aspects of their submissions on the law of evidence in writing in advance and then to set aside the week for argument on evidence; argument as to what course His Honour should take in admitting or not admitting the evidence. It has been the contention of the plaintiffs before His Honour that His Honour should not rule on any evidentiary matters until the conclusion of the reception of all evidence including that evidence which is taken subject to objection,.
HIS HONOUR: And what then?
MR CASTAN : And it is now the contention of the plaintiffs that His Honour should not rule on those questions of admissibility of the matters of evidence taken by him. And the reason for that, Your Honour, is that the questions of applicability of the law of evidence and, in particular, the contentions which the plaintiffs desire to put are of a nature that mean that they are, by definition, questions of law, firstly, and secondly, are of a nature such that is only really possible for this Court to decide those questions of law in view of the way in which they have been raised. And if I could explain briefly why the latter proposition is so: obviously questions of evidence are questions of law. In the routine case where a question is asked and an issue might arise as to whether or not it is relevant as defined by the pleadings and the admissions on the various statements of fact and denials, in great particularity in this case, the judge might properly rule that it does or does not fall within the scope of a particular paragraph of the allegation or denial of fact and that might be within the scope of the determination of issues of fact as distinct from issues of law reserved for the High Court.
On the other hand, here, the plaintiff submits that there exists a rule of evidence in the common law which permits the admission of traditional evidence, as it is called, and that is something that has been adverted to and dealt with in some detail in this Court in the context of New Guinea cases and this Court has dealt with that category of evidence in some detail in a case called....
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HIS HONOUR: Well, obviously, some traditional evidence would be admissible. And I presume Mr Davies would not deny that, would you?
MR DAVIES: I think we would deny that it would be admissible on the issues which are before - in this case.
HIS HONOUR: Yes, I put that - you are talking then more about relevance? I mean, if one was dealing with a traditional title, obviously traditional evidence including some hearsay evidence would be admissible. Well, I would have thought so.
MR DAVIES: We would not even concede that, Your Honour. We would submit, with respect, that traditional evidence is not part of the common law; that where it has been held to be admissible, it has been admissible because of some statutory provision which obliges the Court to have regard to rules of traditional evidence in the sense in which our learned friend is referring to. So, we would submit that but we would also submit, with respect that what our learned friend is really asking at this stage is hypothetical for two reasons: one is because it may, as Your Honour quite correctly puts it, be a question of relevance and, the other is that it may be that some or all of the evidence which our learned friends or we are happy to see in is admissible pursuant to some other orthodox exception to the hearsay rule such as in the Northern Territory case before Mr Justice Blackburn where he admitted evidence on the basis of it being reputation evidence whilst holding that, in effect, traditional evidence was not part of the common law.
HIS HONOUR: Thank you.
MR CASTAN: Your Honour has pointed up the precise reason why we seek to have the question determined.
HIS HONOUR: But, what question?
MR CASTAN: The question of whether that which Your Honour stated as, if I may say so, with respect, obvious, is in truth the law at all. There has been
constant ---
HIS HONOUR: Except that would not get very far if I referred to the Full Court the question whether, on a question of traditional title, any hearsay evidence at all is admissible...
MR CASTAN: No, Your Honour, and we had prepared...
HIS HONOUR: ... which was the only proposition I put.
MR CASTAN: Yes. I appreciate that would not in that form. We had prepared some minutes of possible questions that might encompass some of the issues...
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HIS HONOUR: Well, that will help me to understand what the...
MR CASTAN: ... although we think that could be refined further.
HIS HONOUR: Mr Castan, do you go so far to say that there are any issues of law involved in this case which you wish to have referred to the Full Court as distinct from questions of law arising in the resolution of issues of fact?
NR CASTAN: Yes, Your Honour, I do, with...
HIS HONOUR: I mean, there must always be questions of law whenever this Court remits issues of fact to be determined if one regards relevance, hearsay and the like as questions of law.
MR CASTAN: But, it is of two levels: there is then an issue of law in the true sense then which emerges as distinct from what one might call a question of the application of the law of evidence to the determination of issues of fact. Firstly, Your Honour, there is that fundamental question which was ruled on by His Honour Mr Justice Blackburn in the GOVE case which is to the effect that traditional evidence does not form part of the common law and cannot be received and that is a fundamental...
HIS HONOUR: Well then, why cannot the parties formulate issues of fact? One is, "On the basis that traditional evidence is to be had regard to, is the position this?" "On the basis that traditional evidence is not to be paid regard to, is the question this?" I mean, what you are in effect proposing is that the Full Court of this Court, in effect, hears half the matter which is going to come up before it.
MR CASTAN: Well, that is why I said there were two, and the second I was going to come to, Your Honour - the second issue. Your Honour asked me whether there were issues of law as distinct from questions and I mentioned the first one which is that fundamental question of whether or not such a category exists at all and the second is that the assumption, in raising that question, is the assumption about the continuity of the existence of the kind of title that is claimed and we only say that traditional evidence is admissible in cases involving that kind of title and that is how I think Your Honour posed the proposition just in the form of a question from the bench, in a general way. And, of course, that is inherent in it because, in a sense, as we have realised in the course of having these debates about admissibility, that kind of admissibility question only arises in those circumstances where what is being contended for is a title of the particular kind. And the difficulty is - we would respectfully submit the one thing that cannot happen is for a judge determining issues of fact to determine a question of admissibility in a way which,
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in effect, assumes the non-existence of the basic right that Is claimed in the - the substantive right that is claimed.
HIS HONOUR: There is nothing before me to indicate that Mr Justice Moynihan is going to do that.
MR CASTAN: But His Honour is going to hear those questions and that is going to be contended before him as one of the possible arguments. It is going to be put to him he should exclude the evidence and we say he should include it. That is what the argument is going to be, Your Honour, and we...
HIS HONOUR: It may well be he will decide that since he is dealing with issues of fact for the purpose of a matter in this Court he should deal with them on alternative bases.
MR CASTAN: Yes, and were he to do that, that would make it clear that there was no difficulty. What has been contended before him, Your Honour, is that he should not do that at all. What is being said, and it presumably to be put again to him next Monday, is, "You should rule"...
HIS HONOUR: But, Mr Castan, if it were contended before him that he should go home and lock himself in the bathroom, he would deal with it, and there would be no basis coming and asking somebody to refer it to the Full Court because somebody is going to contend for something that he should not accept.
MR CASTAN: No, we are not at that stage though, Your Honour. We are at the stage where the broad scope of the argument...
HIS HONOUR: Well, perhaps the example was a bad one,
MR CASTAN: No. What I mean is the broad scope - we are not total at large. The scope of the issues and the kind of contentions has been, in general terms, adumbrated and His Honour has simply said, "Well, we will defer all of that and you can all present full and total argument to me and I will decide what to do during the week commencing the 23rd." Now, the choices are these: if His Honour - of course, it is possible that His Honour would take the course that Your Honour has suggested and that is that he would say, "Well, it must be dealt with on alternative bases" and we will be certainly contending before him with all that is at our disposal that he should not, on any view, effectively exclude answers to a question on some basis...
HIS HONOUR: Well, will Mr Davies be asking him to refrain from dealing with it on alternative bases in case your view as to what is relevant does not finally prevail?
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MR CASTAN: May I respond to that by saying that my learned friend, Mr Davies, will not be there and counsel who was there was contending exactly to that effect, that the evidence should be excluded and that he should know - and the reason why he contended it and the reason I can say that with such certainty is because the contention was that counsel for the first defendant needed to know what evidence was in and what evidence was not in before commencing cross-examination of the first major witness, and that is precisely why the timing has been such because the evidence in-chief has closed but the witness has not yet been cross-examined. His Honour has said, "Well, I will decide that after we hear the evidence in-chief so I have a good scope of the totality of what he wants to say and then I will rule and then include in my ruling whether or not I should decide what is admissible so you will know what to cross-examine on." So, that is precisely how it has been put to His Honour. Now, unless there has been some dramatic change in the position of my learned friends that is precisely what is going to be put to His Honour and so His Honour is going to be asked, at least, to rule in that way.
Now, Your Honour, it may well be that His Honour will rule in a way that ensures that all issues are left open and no assumptions made but it has been put forcefully to him that he should not and he has left open that question. He has not simply said, "Well, that will not do because that would close off these issues." He is going to have all of that argued as in a matter of law before him. In our respectful submission...
HIS HONOUR: Well, not as a matter of law necessarily, is it?
MR CASTAN: Well, he has asked for full argument on all the issues of law.
HIS HONOUR But, I mean, the question whether, having identified the issues of law, he should deal with it on alternative bases so that come what may, the relevant facts will be before this Court is not a question of law.
MR CASTAN: No, no, that is purely a procedural issue.
HIS HONOUR: And that seems to be the question that is mainly concerning you.
MR CASTAN: Our concern is that he may rule - among the matters that he is undertaking to consider is the actual exclusion of the evidence by reason of a finding that it is not admissible under one of the categories which we contend for and that, in turn, makes assumptions about the existence of a substantive right.
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HIS HONOUR: And the risk involved there would be that if you prove to be ultimately correct as to your views of what was admissible, the result would be that the matter would not be finally determined on the hearing in this Court. It would have to go back
to...
MR CASTAN: Precisely, because if this Court came to a different view it would have to send it back for all those other facts to be determined and that, we say, should never happen. Now, it may be that...
HIS HONOUR: But what also should never happen is that when this Court remits issues of fact to be determined by a judge of another court that it should interfere, as it were, in relation to the questions of evidence involved in determining those issues of fact otherwise we may as well not remit anything. It would be a lot easier just to simply deal with it.
MR CASTAN: And ordinarily we would have no difficulty at all in acceding to that, Your Honour. The unique problem that has arisen here and it has highlighted this is that there is a question of the existence of a principle of evidence which in turn, depends upon an assumption or a contention about the existence of a substantive right and the two...
HIS HONOUR: Well, Mr Castan, I will stop interrupting you but I think I should indicate to you, so you can say what you think might change my mind, my current view would be to refuse to refer questions of this nature to the Full Court, which really means, it seems to me that you are in the situation - and as I say I am only telling you my current views so you could change them if you can - where, if, when His Honour makes a ruling and acts on it, you can identify a wrong decision on something that approaches an issue of law which would frustrate the purpose of the reference of the issues of fact, you could approach the Court again.
MR CASTAN: Yes, of course, the option, in effect, of appealing
HIS HONOUR: Yes, or alternatively, you could seek to escape from your agreement that the questions of fact be determined before the questions of law but you would need extraordinary powers of advocacy to persuade me to refer these questions for determination of the Full Court in isolation of the main issues involved in the case.
MR CASTAN: Well, the two are, in this case, as has become apparent from the process we have undertaken, inextricably mingled. That is the problem that has given rise to this, that it is not as if the evidentiary question stands alone as a nice separate issue of the law of one particular form of statement or another, it is inevitably, by its nature - by the nature of the category of evidence, linked...
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HIS HONOUR: But, I mean, the whole starting point of your proposition is that I should assume that the judge to whom the Court has remitted the questions of fact is going to decide the questions of law involved in those issues of fact wrongly because if he does not decide them wrongly, on your contentions, you would have no cause for complaint.
MR CASTAN: That is true, Your Honour, but the difficulty with it is that there is only one way that he can decide them. There is little point in having a debate - and, if necessary, we would seek, in the alternative, the relevant directions from this Court to His Honour - about the applicability of a rule of evidence of the kind we contend for if one of the results may be that it would result in excluding evidence on an assumption about the non-existence of the rights. That result - one does not have to await His Honour, so to speak, doing right or wrong and then appealing, it is rather a case that there is only one course that is open.
HIS HONOUR: But why can you not say that to His Honour?
MR CASTAN: We will certainly be saying that with all that is at our disposal, Your Honour.
HIS HONOUR: And if His Honour accepts it, no problem.
MR CASTAN: Quite so.
HIS HONOUR: But you are saying I should refer all these questions to the Full Court just in case you fail to persuade His Honour?
MR CASTAN: No, no, we are rather putting it that His Honour must accept it in the sense that to not accept it is to make the assumption adverse in relation to the substantive issue and what we are saying is either this Court should come to grips with that substantive issue and that evidentiary issue in so far as it involves the substantive issue or, alternatively, His Honour should be directed...
HIS HONOUR: Should not exclude it.
MR CASTAN: Should exclude it and...
HI5 HONOUR: No, should not exclude it.
MR CASTAN: Should not exclude the evidence, yes, Your Honour. Without ruling on whether or not there exists such an exception, he does not need to go that far and so what we say is His Honour should not be embarking upon a process of which one result or one contention that is put to him is simply untenable. You do not undertake that task if to do so will assume the non-existence of the substantive rights that are here contended for in the issues of law.
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HIS HONOUR: But why should not he identify the issues of law and understand them and hear what you say?
MR CASTAN: There is no difficulty with that, Your Honour.
HIS HONOUR: But that is all he is proposing to do, is it not?
MR CASTAN: He is proposing to determine, as we would see it, the issues of evidence and that involves, in relation to this particular issue of evidence, determining, in effect, substantive rights.
HIS HONOUR: But at the end of the day he may very well take the view, "Well, I am not going to pre-empt the High Court", if, what you say, is correct, and I am not expressing any view about that.
MR CASTAN: Of course.
HIS HONOUR: "I am not going to pre-empt the High Court therefore even though I personally, for example, think this hearsay evidence is not admissible, I will receive it and deal with the issues of fact on alternative bases'. Would there be any problem if he did that?
MR CASTAN: No. If His Honour did that there would be no difficulty. But if His Honour was doing that there would be no need to set aside a week to argue question of law. I mean, it is a simple enough matter for His Honour to proceed on that basis...
HIS HONOUR: His Honour may well be conscious that in a case where it took five days to open he should allow plenty of time.
MR CASTAN: Yes. Well, no doubt, there has been plenty of time being set aside for it, Your Honour, but what is contemplated - what is occurring here, Your Honour, is an attempt, in effect, to exclude certain evidence on that assumption of the non-existence of the substantive rights. We say that cannot happen and we say this Court should make it clear that it cannot happen and the method we suggest is for the Court to deal with those substantive issues. Now, if, as Your Honour has indicated, those issues are not sufficiently defined, the alternative course which we would respectfully submit would be for a Judge of this Court who would be in no different position to His Honour since we have got the transcript that His Honour has got for the purpose of the dispute that is to take place or the argument or defining of issues that is to take place on the 23rd - for a Judge of this Court to seek to define the issues - that would take perhaps a day, we would think - in a form that would make up the relevant - with relevant, passages, questions and answers so as to clearly formulate the questions that could be appropriately referred.
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HIS HONOUR: But the problem with that is that if that involves determining questions which, as I follow it, you would say are very much involved in the ultimate hearing by a Full Court, the consequence of that would, one would have thought, almost inevitably be an appeal to the Full Court which means it would be a lot easier to refer it to the Full Court.
MR CASTAN: What I was contemplating, Your Honour, was not that a Judge would decide that the matter would be set down for decision by a single Judge of this Court but that the question of a formulation or determination of questions and the appropriate material from, in effect, the case stated but taking the material on the transcript and the appropriate material would be argued before a single Judge who would then set it down. I was not contemplating argument on the evidentiary points but, rather, the more clearer definition. I would have to concede that those questions might be put in a rather general way and without the passages or the relevant extracts, perhaps, annexed as part of the material, they would leave the Full Court, as Your Honour has pointed out, perhaps unable to really come to grips with the issues. But there is no difficulty in a Judge, in the space of, say, one day, would quite conveniently, we would submit, be able to clarify those issues. The scope of the issues has already been adumbrated before His Honour and each party would have their relevant passages and questions and answers that they would say are illustrative of, for instance, the traditional evidence point, the customary evidence point, the relevance point and so on, and one could get six or seven points fairly clearly defined out.
Now, in that way those issues could be clarified and the matter could go before a Full Court for the determination in a way that would ensure that the case is not left to - well, on the one hand to explore over many, many days of answers and objections on the view that evidence is not admissible, which would be then wasted. Alternatively, the other option: you would avoid excluding evidence which should properly be put before the court. So that we would respectfully submit that that - accepting, as Your Honour has indicated, Your Honour's view that the questions are not yet in a form to go before a court, we would submit, they can relatively easily be put in such a form. It would need, obviously, to hear both parties to assemble it in a form that is suitable and to assemble the appropriate material. And the third alternative, we would respectfully submit, is that Your Honour should give the appropriate directions as to the course His Honour should take. If Your Honour does not accede to either of the first two, that Your Honour
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should give the appropriate directions along the lines that have been indicated in discussion between us so that there is not an, if we might call it, enormously lengthy week spent in arguing issues which ultimately is not really useful if a conclusion in one particular way is a conclusion that is simply untenable. In other words, we would respectfully submit that the proper course, if the matter is not to otherwise be determined since it does involve the substantive questions in the way we have outlined, then Your Honour should direct that the findings should be made on the alternative bases so that no evidence is excluded ultimately from the consideration of the High Court when the substantive issues of law raised on the pleadings ultimately are argued.
I think those are the matters that we would desire to put unless there are any other questions that Your Honour has.
HIS HONOUR: No, thank you, Mr Castan. Mr Solicitor, is there anything you want to say?
MR GRIFFITH: Well, Your Honour, it might be useful if we may if we could hear what my learned friend has to say, Your Honour, because I think all we want to say is something which we then thought might be useful to Your Honour to add as a matter of...
HIS HONOUR: Very well. Mr Davies, I can indicate to you that my - and I do not wane to stop you saying anything
because I do think it might be helpful if your
client's attitude was made clear - present feeling
is that I would not interfere with the hearing by
Mr Justice Moynihan of the issues of fact remitted to
the Supreme Court of Queensland including his
dealing with questions of admissibility of evidence
involved in his dealing with those issues of fact.
Well now, having said that, I do not want to say it
and by a back door interfere with what Mr Justice Moynihan is doing by expressing views but I would say that I think it desirable that objections to evidence, if they involve complete exclusion of evidence by your client, in a situation where the matter is coming to this Court, should, if possible, be aimed, as it were, at having alternative issues determined rather than excluding effectively the determination of the matter finally in this Court if one view of the law prevails over another. Now, I do not know if you can be helpful in relation to that.
MR DAVIES: I do not think I can, Your Honour, in the sense that, of course, our client will have regard to the views which Your Honour has expressed. And I think my learned friend, Mr Castan, is correct in saying that the submissions which were made before His Honour Mr Justice Moynihan on behalf of our client were to the effect that His Honour should rule on
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questions of evidence as they arose. I do not know, because I have not read the transcript in sufficient detail, but my recollection is that they did not go further and say that having ruled, that the evidence should not even be heard. 8ut I really cannot say anything further than that, I do not think, Your Honour.
HIS HONOUR: But what I would say is I think it is incumbent on all the parties, when they have joined in requesting the remitter of issues of fact to be dealt with by the supreme court, to co-operate to formulate alternative issues which will enable His Honour to make the findings of fact which will enable the matter to be determined by this Court whatever view of the law might ultimately prevail. Well now, having said that there is nothing before me, as I see it, which indicates that His Honour is going to go wrong in his approach to matters or that he is dealing with things that he is not entitled to deal with in resolving the issues of fact and, as I say, I do not propose to interfere with His Honour's dealing with those issues of fact at this stage. Having said that, is there anything further you want to say?
MR DAVIES: No, Your Honour.
HIS HONOUR: Perhaps I should not have said that until I heard you, Mr Solicitor, but I have a rather firm view on it.
MR GRIFFITH: Yes, well, Your Honour, I think our observations are probably not very helpful to Your Honour. It seemed to us, Your Honour, if there is ten weeks set aside for hearing of further evidence, as a matter of general policy, Your Honour, it is appropriate that the result of this evidentiary activity will produce findings on a basis which will enable the Full Court to deal with outstanding issues in one hearing.
HIS HONOLR: That must be pretty plain to everybody, Mr Solicitor.
MR GRIFFITH: We would have thought so, Your Honour. So that when one says, "Well, a finding of fact can be made on one view of admissibility to this extent; on another view, to that extent", it would seem to us your Honour, self-evident, that they should be made in the alternative and that this issue which is identified and, take question 1 which probably in a general form covers it, Your Honour, is one then that can be put before the Full Court in proper form and then the factual finding is there one way or the other, Your Honour, depending on the answer to the question.
Now, we would hope that it is not necessary to take the leave reserved by His Honour the then Chief Justice in his order on 27 February to keep on applying to this Court in chambers to get to that obviously sensible position and if that view which seems to us to be logically compelling prevails, Your Honour, it may well
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resolve the difficulties in the field. Having said that, Your Honour, I probably - I have not added anything to what Your Honour had already said, in effect.
HIS HONOUR: Thank you, Mr Solicitor. Mr Castan, you have a right of reply to what has been said by Mr Davies and what has been said by the Solicitor.
MR CASTAN: I have nothing to add, Your Honour.
HIS HONOUR: Well now, what really remains is would you prefer and the reasons for adopting the course I propose to adopt appear sufficiently from the transcript. I do not propose to take time to repeat them in a formal judgment. What is a matter for you to decide is whether you would prefer that I make a formal order dismissing the summons or that I simply stand it over which largely depends on whether you think there is a likelihood that you may want to agitate the matters elsewhere.
MR CASTAN: Yes. Perhaps we would ask Your Honour to stand it over at this stage. It would seem to be the better course.
HIS HONOUR: Very well, I will stand the summons over generally. My inclination, Mr Davies, would be to simply reserve costs.
MR DAVIES: I was going to ask Your Honour to do that.
HIS HONOUR: And I will reserve costs.
MR CASTAN: If Your Honour pleases, I am not sure whether it is appropriate to ask for a certificate for counsel. I notice that His Honour the Chief Justice certified for counsel on that last occasion...
HIS HONOUR: Well, it can never do any harm, Mr Castan. I certify that the matter was a proper matter for the attendance of senior counsel.
MR CASTAN: If Your Honour pleases.
AT 10.58 AM THE MATTER WAS ADJOURNED SINE DIE
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Office of the Registry
Brisbane No B12 of 1982
B e t w e e n -
EDDIE MABO, DAVID PASSI and JAMES RICE
(who bring this action on their own behalf and on behalf of the members of their respective family groups)
Plaintiffs
and
THE STATE OF QUEENSLAND
First Respondent
and
THE COMMONWEALTH OF AUSTRALIA
Second Respondent
Directions hearing
DEANE J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 13 FEBRUARY 1987, AT 10.16 AM
Copyright in the High Court of Australia
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MR A.R. CASTAN, QC: May it please Your Honour, I appear for the plaintiffs with my 1earned friends, MRS B.J. HOCKING and MR B.A. KEON-COHEN. (instructed by Mclntyre & Co)
MR G. GRIFFITH, QC, Solicitor-General of the Commonwealth: If the Court pleases I appear with my learned friend, MR R.W. GOTTERSON for the second-named defendant. (instructed by the Australian Government Solicitor)
MR G.L. DAVIES, QC: May it please Your Honour, I appear with my learned friend, MRS MARGARET WHITE, for the first-named defendant. (instructed by the Crown Solicitor for Queensland.
MR CASTAN: I am not sure if Your Honour has had the opportunity to read the affidavit that had been sworn?
HIS HONOUR: Yes, I have looked at it. I have great trouble seeing what it is all about though, I must confess, Mr Castan.
MR CASTAN: Well, we could perhaps shortly endeavour to explain what has occurred and...
HIS HONOUR: Excuse me, I am just looking for the file. Well, perhaps the first question I might ask is is there a contest or is there agreement at the bar table?
MR CASTAN: I am not sure of the answer to that at this stage, Your Honour
MR DAVIES: Well, I can say for our part there is a contest, Your Honour.
MR GRIFFITH: Well, Your Honour, there is really not much need for me to say anything because we...
HIS HONOUR: Well, you cannot say there is not a contest, Mr Solicitor.
MR GRIFFITH: No. We have made it clear in previous chamber applications before His Honour the previous Chief Justice that we tended to abide a bit by the result in these things except express short opinion when invited to do so, Your Honour.
HIS HONOUR: Yes, Mr Castan.
MR CASTAN: Your Honour, the stage we are at in these proceedings is that proceedings were issued some years ago. In brief, an attempt was...
HIS HONOUR: You can assume that I have read the documents filed in relation to this morning apart from the exhibits to the last affidavit which was, I think, your client's affidavit, Mr Davies; that I understand what the case is about and that I understand the background.
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My comment was directed to why we are here today which I do not fully understand.
MR CASTAN: Yes, and I can come to that fairly briefly. Before doing that could I simply mention one correction to the affidavit which has been filed on behalf of the plaintiffs and that is that it appears - and I say this because it involves me, Your Honour - at page 3 in paragraph 8 of Mr McLachlan's affidavit, in the fifth line of paragraph 8, there is a reference to the opening of the plaintiffs' case. It says:
The opening of the plaintiffs' case occupied some 17 days of hearing -
Does Your Honour see that?
HIS HONOUR: Yes.
MR CASTAN: That is incorrect, Your Honour. I do not think I am capable of doing that. It in fact occupied some four to five days of hearing. It may have seem to some like it was 17 but, in fact, it was four to five days.
HIS HONOUR: Well, would you like me to make that minor adjustment?
MR CASTAN: If Your Honour would.
HIS HONOUR: Well, I will cross out "17" and, what, put... ?
MR CASTAN: "Five" perhaps, we could agree on without much dissent, I think. It was spread over different days.
HIS HONOUR: I would have thought you would have been better advised not drawing attention to it.
MR CASTAN: Well, the "17" struck us as somewhat outlandish, Your Honour. And, for what it is worth, a good part of that five involved the documents because what had happened was that there had been agreement on admission of documents so there is a long examination of historical documents.
HIS HONOUR: Let us not trouble with that.
MR CASTAN: Your Honour, the stage we are at is that the matter was remitted by order of His Honour the previous Chief Justice last year for hearing on issues of fact in the Supreme Court of Queensland and it duly came on for hearing on those issues of fact in October last year. The hearing commenced and in the course of the hearing and in the course of calling evidence from the first witness who was the first-named plaintiff, objections were taken to evidence sought to be led. It was contended by the defendant's counsel, objecting to the evidence, that the evidence was of the nature of hear say or was irrelevant or the other various objections that were taken. His Honour, for the most part, did not rule
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Mabo (4)
progressively as those objections were taken although he Invited what was in the nature preliminary outlines of what the issues might be that would bear on the question of the admissibility of particular items of evidence.
HIS HONOUR: Well, have the issues of fact between the parties been defined?
MR CASTAN: The evidence in still in course of running, Your Honour.
HIS HONOUR I appreciate that but if His Honour is dealing with those issues of fact, have the parties defined what those issues of fact are?
MR CASTAN: They have not been separately defined except within the framework of the pleadings. The pleadings are closed and there are clearly defined claims of factual assertion in very great detail by the plaintiffs and admissions or non-admissions or denials in great detail in the course of a number of documents on those facts by the defendants. So, they are defined...
HIS HONOUR: So, there is no doubt that His Honour is determining defined issues of fact?
MR CASTAN: No, none whatsoever, Your Honour; in fact...
HIS HONOUR: The query being whether, in determining them, he can pay regard to hearsay evidence and, in some respect whether particular evidence is relevant to them.
MR CASTAN: In broad terms though, we would contend that the question goes much further than that because we would contend that much of what is objected to as hearsay is not, in truth, hearsay at all. It is evidence of, what one would term, oral events.
HIS HONOUR: Yes, I understand that.
MR CASTAN: That is to say, a statement made which itself is admissible as evidence of the fact of the making of the statement.
HIS HONOUR: Well, where has His Honour gone wrong?
MR CASTAN: Well, His Honour, so far, has, in substance, not decided any of those issues of the law of evidence. What he has done - although in the course of running, objections have constantly, of course, been taken and much debate has gone on which has perhaps made the course of evidence slower than it might be if there were simply objections at large and deferral of the question of admissibility. But nevertheless, in substance His Honour has simply deferred the rulings on the questions of evidence and admissibility and, in substance evidence has been received over a period of some seven
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o- hearing. Now, what His Honour has then done is to set down for the 23rd of this month a hearing which is not to be a continuation of the evidence but is to be a hearing on arguments about the law of evidence and the applicability of rules of evidence to the evidence so far received, subject to objection.
HIS HONOUR: And as to what course His Honour should take?
MR CASTAN: Yes, argument as to what course His Honour should take and argument as to whether or not the evidence is admissible and His Honour has invited the parties to prepare detailed submissions on all aspects of their submissions on the law of evidence in writing in advance and then to set aside the week for argument on evidence; argument as to what course His Honour should take in admitting or not admitting the evidence. It has been the contention of the plaintiffs before His Honour that His Honour should not rule on any evidentiary matters until the conclusion of the reception of all evidence including that evidence which is taken subject to objection,.
HIS HONOUR: And what then?
MR CASTAN : And it is now the contention of the plaintiffs that His Honour should not rule on those questions of admissibility of the matters of evidence taken by him. And the reason for that, Your Honour, is that the questions of applicability of the law of evidence and, in particular, the contentions which the plaintiffs desire to put are of a nature that mean that they are, by definition, questions of law, firstly, and secondly, are of a nature such that is only really possible for this Court to decide those questions of law in view of the way in which they have been raised. And if I could explain briefly why the latter proposition is so: obviously questions of evidence are questions of law. In the routine case where a question is asked and an issue might arise as to whether or not it is relevant as defined by the pleadings and the admissions on the various statements of fact and denials, in great particularity in this case, the judge might properly rule that it does or does not fall within the scope of a particular paragraph of the allegation or denial of fact and that might be within the scope of the determination of issues of fact as distinct from issues of law reserved for the High Court.
On the other hand, here, the plaintiff submits that there exists a rule of evidence in the common law which permits the admission of traditional evidence, as it is called, and that is something that has been adverted to and dealt with in some detail in this Court in the context of New Guinea cases and this Court has dealt with that category of evidence in some detail in a case called....
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Mabo (4)
HIS HONOUR: Well, obviously, some traditional evidence would be admissible. And I presume Mr Davies would not deny that, would you?
MR DAVIES: I think we would deny that it would be admissible on the issues which are before - in this case.
HIS HONOUR: Yes, I put that - you are talking then more about relevance? I mean, if one was dealing with a traditional title, obviously traditional evidence including some hearsay evidence would be admissible. Well, I would have thought so.
MR DAVIES: We would not even concede that, Your Honour. We would submit, with respect, that traditional evidence is not part of the common law; that where it has been held to be admissible, it has been admissible because of some statutory provision which obliges the Court to have regard to rules of traditional evidence in the sense in which our learned friend is referring to. So, we would submit that but we would also submit, with respect that what our learned friend is really asking at this stage is hypothetical for two reasons: one is because it may, as Your Honour quite correctly puts it, be a question of relevance and, the other is that it may be that some or all of the evidence which our learned friends or we are happy to see in is admissible pursuant to some other orthodox exception to the hearsay rule such as in the Northern Territory case before Mr Justice Blackburn where he admitted evidence on the basis of it being reputation evidence whilst holding that, in effect, traditional evidence was not part of the common law.
HIS HONOUR: Thank you.
MR CASTAN: Your Honour has pointed up the precise reason why we seek to have the question determined.
HIS HONOUR: But, what question?
MR CASTAN: The question of whether that which Your Honour stated as, if I may say so, with respect, obvious, is in truth the law at all. There has been
constant ---
HIS HONOUR: Except that would not get very far if I referred to the Full Court the question whether, on a question of traditional title, any hearsay evidence at all is admissible...
MR CASTAN: No, Your Honour, and we had prepared...
HIS HONOUR: ... which was the only proposition I put.
MR CASTAN: Yes. I appreciate that would not in that form. We had prepared some minutes of possible questions that might encompass some of the issues...
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HIS HONOUR: Well, that will help me to understand what the...
MR CASTAN: ... although we think that could be refined further.
HIS HONOUR: Mr Castan, do you go so far to say that there are any issues of law involved in this case which you wish to have referred to the Full Court as distinct from questions of law arising in the resolution of issues of fact?
NR CASTAN: Yes, Your Honour, I do, with...
HIS HONOUR: I mean, there must always be questions of law whenever this Court remits issues of fact to be determined if one regards relevance, hearsay and the like as questions of law.
MR CASTAN: But, it is of two levels: there is then an issue of law in the true sense then which emerges as distinct from what one might call a question of the application of the law of evidence to the determination of issues of fact. Firstly, Your Honour, there is that fundamental question which was ruled on by His Honour Mr Justice Blackburn in the GOVE case which is to the effect that traditional evidence does not form part of the common law and cannot be received and that is a fundamental...
HIS HONOUR: Well then, why cannot the parties formulate issues of fact? One is, "On the basis that traditional evidence is to be had regard to, is the position this?" "On the basis that traditional evidence is not to be paid regard to, is the question this?" I mean, what you are in effect proposing is that the Full Court of this Court, in effect, hears half the matter which is going to come up before it.
MR CASTAN: Well, that is why I said there were two, and the second I was going to come to, Your Honour - the second issue. Your Honour asked me whether there were issues of law as distinct from questions and I mentioned the first one which is that fundamental question of whether or not such a category exists at all and the second is that the assumption, in raising that question, is the assumption about the continuity of the existence of the kind of title that is claimed and we only say that traditional evidence is admissible in cases involving that kind of title and that is how I think Your Honour posed the proposition just in the form of a question from the bench, in a general way. And, of course, that is inherent in it because, in a sense, as we have realised in the course of having these debates about admissibility, that kind of admissibility question only arises in those circumstances where what is being contended for is a title of the particular kind. And the difficulty is - we would respectfully submit the one thing that cannot happen is for a judge determining issues of fact to determine a question of admissibility in a way which,
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in effect, assumes the non-existence of the basic right that Is claimed in the - the substantive right that is claimed.
HIS HONOUR: There is nothing before me to indicate that Mr Justice Moynihan is going to do that.
MR CASTAN: But His Honour is going to hear those questions and that is going to be contended before him as one of the possible arguments. It is going to be put to him he should exclude the evidence and we say he should include it. That is what the argument is going to be, Your Honour, and we...
HIS HONOUR: It may well be he will decide that since he is dealing with issues of fact for the purpose of a matter in this Court he should deal with them on alternative bases.
MR CASTAN: Yes, and were he to do that, that would make it clear that there was no difficulty. What has been contended before him, Your Honour, is that he should not do that at all. What is being said, and it presumably to be put again to him next Monday, is, "You should rule"...
HIS HONOUR: But, Mr Castan, if it were contended before him that he should go home and lock himself in the bathroom, he would deal with it, and there would be no basis coming and asking somebody to refer it to the Full Court because somebody is going to contend for something that he should not accept.
MR CASTAN: No, we are not at that stage though, Your Honour. We are at the stage where the broad scope of the argument...
HIS HONOUR: Well, perhaps the example was a bad one,
MR CASTAN: No. What I mean is the broad scope - we are not total at large. The scope of the issues and the kind of contentions has been, in general terms, adumbrated and His Honour has simply said, "Well, we will defer all of that and you can all present full and total argument to me and I will decide what to do during the week commencing the 23rd." Now, the choices are these: if His Honour - of course, it is possible that His Honour would take the course that Your Honour has suggested and that is that he would say, "Well, it must be dealt with on alternative bases" and we will be certainly contending before him with all that is at our disposal that he should not, on any view, effectively exclude answers to a question on some basis...
HIS HONOUR: Well, will Mr Davies be asking him to refrain from dealing with it on alternative bases in case your view as to what is relevant does not finally prevail?
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MR CASTAN: May I respond to that by saying that my learned friend, Mr Davies, will not be there and counsel who was there was contending exactly to that effect, that the evidence should be excluded and that he should know - and the reason why he contended it and the reason I can say that with such certainty is because the contention was that counsel for the first defendant needed to know what evidence was in and what evidence was not in before commencing cross-examination of the first major witness, and that is precisely why the timing has been such because the evidence in-chief has closed but the witness has not yet been cross-examined. His Honour has said, "Well, I will decide that after we hear the evidence in-chief so I have a good scope of the totality of what he wants to say and then I will rule and then include in my ruling whether or not I should decide what is admissible so you will know what to cross-examine on." So, that is precisely how it has been put to His Honour. Now, unless there has been some dramatic change in the position of my learned friends that is precisely what is going to be put to His Honour and so His Honour is going to be asked, at least, to rule in that way.
Now, Your Honour, it may well be that His Honour will rule in a way that ensures that all issues are left open and no assumptions made but it has been put forcefully to him that he should not and he has left open that question. He has not simply said, "Well, that will not do because that would close off these issues." He is going to have all of that argued as in a matter of law before him. In our respectful submission...
HIS HONOUR: Well, not as a matter of law necessarily, is it?
MR CASTAN: Well, he has asked for full argument on all the issues of law.
HIS HONOUR But, I mean, the question whether, having identified the issues of law, he should deal with it on alternative bases so that come what may, the relevant facts will be before this Court is not a question of law.
MR CASTAN: No, no, that is purely a procedural issue.
HIS HONOUR: And that seems to be the question that is mainly concerning you.
MR CASTAN: Our concern is that he may rule - among the matters that he is undertaking to consider is the actual exclusion of the evidence by reason of a finding that it is not admissible under one of the categories which we contend for and that, in turn, makes assumptions about the existence of a substantive right.
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HIS HONOUR: And the risk involved there would be that if you prove to be ultimately correct as to your views of what was admissible, the result would be that the matter would not be finally determined on the hearing in this Court. It would have to go back
to...
MR CASTAN: Precisely, because if this Court came to a different view it would have to send it back for all those other facts to be determined and that, we say, should never happen. Now, it may be that...
HIS HONOUR: But what also should never happen is that when this Court remits issues of fact to be determined by a judge of another court that it should interfere, as it were, in relation to the questions of evidence involved in determining those issues of fact otherwise we may as well not remit anything. It would be a lot easier just to simply deal with it.
MR CASTAN: And ordinarily we would have no difficulty at all in acceding to that, Your Honour. The unique problem that has arisen here and it has highlighted this is that there is a question of the existence of a principle of evidence which in turn, depends upon an assumption or a contention about the existence of a substantive right and the two...
HIS HONOUR: Well, Mr Castan, I will stop interrupting you but I think I should indicate to you, so you can say what you think might change my mind, my current view would be to refuse to refer questions of this nature to the Full Court, which really means, it seems to me that you are in the situation - and as I say I am only telling you my current views so you could change them if you can - where, if, when His Honour makes a ruling and acts on it, you can identify a wrong decision on something that approaches an issue of law which would frustrate the purpose of the reference of the issues of fact, you could approach the Court again.
MR CASTAN: Yes, of course, the option, in effect, of appealing
HIS HONOUR: Yes, or alternatively, you could seek to escape from your agreement that the questions of fact be determined before the questions of law but you would need extraordinary powers of advocacy to persuade me to refer these questions for determination of the Full Court in isolation of the main issues involved in the case.
MR CASTAN: Well, the two are, in this case, as has become apparent from the process we have undertaken, inextricably mingled. That is the problem that has given rise to this, that it is not as if the evidentiary question stands alone as a nice separate issue of the law of one particular form of statement or another, it is inevitably, by its nature - by the nature of the category of evidence, linked...
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HIS HONOUR: But, I mean, the whole starting point of your proposition is that I should assume that the judge to whom the Court has remitted the questions of fact is going to decide the questions of law involved in those issues of fact wrongly because if he does not decide them wrongly, on your contentions, you would have no cause for complaint.
MR CASTAN: That is true, Your Honour, but the difficulty with it is that there is only one way that he can decide them. There is little point in having a debate - and, if necessary, we would seek, in the alternative, the relevant directions from this Court to His Honour - about the applicability of a rule of evidence of the kind we contend for if one of the results may be that it would result in excluding evidence on an assumption about the non-existence of the rights. That result - one does not have to await His Honour, so to speak, doing right or wrong and then appealing, it is rather a case that there is only one course that is open.
HIS HONOUR: But why can you not say that to His Honour?
MR CASTAN: We will certainly be saying that with all that is at our disposal, Your Honour.
HIS HONOUR: And if His Honour accepts it, no problem.
MR CASTAN: Quite so.
HIS HONOUR: But you are saying I should refer all these questions to the Full Court just in case you fail to persuade His Honour?
MR CASTAN: No, no, we are rather putting it that His Honour must accept it in the sense that to not accept it is to make the assumption adverse in relation to the substantive issue and what we are saying is either this Court should come to grips with that substantive issue and that evidentiary issue in so far as it involves the substantive issue or, alternatively, His Honour should be directed...
HIS HONOUR: Should not exclude it.
MR CASTAN: Should exclude it and...
HI5 HONOUR: No, should not exclude it.
MR CASTAN: Should not exclude the evidence, yes, Your Honour. Without ruling on whether or not there exists such an exception, he does not need to go that far and so what we say is His Honour should not be embarking upon a process of which one result or one contention that is put to him is simply untenable. You do not undertake that task if to do so will assume the non-existence of the substantive rights that are here contended for in the issues of law.
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HIS HONOUR: But why should not he identify the issues of law and understand them and hear what you say?
MR CASTAN: There is no difficulty with that, Your Honour.
HIS HONOUR: But that is all he is proposing to do, is it not?
MR CASTAN: He is proposing to determine, as we would see it, the issues of evidence and that involves, in relation to this particular issue of evidence, determining, in effect, substantive rights.
HIS HONOUR: But at the end of the day he may very well take the view, "Well, I am not going to pre-empt the High Court", if, what you say, is correct, and I am not expressing any view about that.
MR CASTAN: Of course.
HIS HONOUR: "I am not going to pre-empt the High Court therefore even though I personally, for example, think this hearsay evidence is not admissible, I will receive it and deal with the issues of fact on alternative bases'. Would there be any problem if he did that?
MR CASTAN: No. If His Honour did that there would be no difficulty. But if His Honour was doing that there would be no need to set aside a week to argue question of law. I mean, it is a simple enough matter for His Honour to proceed on that basis...
HIS HONOUR: His Honour may well be conscious that in a case where it took five days to open he should allow plenty of time.
MR CASTAN: Yes. Well, no doubt, there has been plenty of time being set aside for it, Your Honour, but what is contemplated - what is occurring here, Your Honour, is an attempt, in effect, to exclude certain evidence on that assumption of the non-existence of the substantive rights. We say that cannot happen and we say this Court should make it clear that it cannot happen and the method we suggest is for the Court to deal with those substantive issues. Now, if, as Your Honour has indicated, those issues are not sufficiently defined, the alternative course which we would respectfully submit would be for a Judge of this Court who would be in no different position to His Honour since we have got the transcript that His Honour has got for the purpose of the dispute that is to take place or the argument or defining of issues that is to take place on the 23rd - for a Judge of this Court to seek to define the issues - that would take perhaps a day, we would think - in a form that would make up the relevant - with relevant, passages, questions and answers so as to clearly formulate the questions that could be appropriately referred.
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HIS HONOUR: But the problem with that is that if that involves determining questions which, as I follow it, you would say are very much involved in the ultimate hearing by a Full Court, the consequence of that would, one would have thought, almost inevitably be an appeal to the Full Court which means it would be a lot easier to refer it to the Full Court.
MR CASTAN: What I was contemplating, Your Honour, was not that a Judge would decide that the matter would be set down for decision by a single Judge of this Court but that the question of a formulation or determination of questions and the appropriate material from, in effect, the case stated but taking the material on the transcript and the appropriate material would be argued before a single Judge who would then set it down. I was not contemplating argument on the evidentiary points but, rather, the more clearer definition. I would have to concede that those questions might be put in a rather general way and without the passages or the relevant extracts, perhaps, annexed as part of the material, they would leave the Full Court, as Your Honour has pointed out, perhaps unable to really come to grips with the issues. But there is no difficulty in a Judge, in the space of, say, one day, would quite conveniently, we would submit, be able to clarify those issues. The scope of the issues has already been adumbrated before His Honour and each party would have their relevant passages and questions and answers that they would say are illustrative of, for instance, the traditional evidence point, the customary evidence point, the relevance point and so on, and one could get six or seven points fairly clearly defined out.
Now, in that way those issues could be clarified and the matter could go before a Full Court for the determination in a way that would ensure that the case is not left to - well, on the one hand to explore over many, many days of answers and objections on the view that evidence is not admissible, which would be then wasted. Alternatively, the other option: you would avoid excluding evidence which should properly be put before the court. So that we would respectfully submit that that - accepting, as Your Honour has indicated, Your Honour's view that the questions are not yet in a form to go before a court, we would submit, they can relatively easily be put in such a form. It would need, obviously, to hear both parties to assemble it in a form that is suitable and to assemble the appropriate material. And the third alternative, we would respectfully submit, is that Your Honour should give the appropriate directions as to the course His Honour should take. If Your Honour does not accede to either of the first two, that Your Honour
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should give the appropriate directions along the lines that have been indicated in discussion between us so that there is not an, if we might call it, enormously lengthy week spent in arguing issues which ultimately is not really useful if a conclusion in one particular way is a conclusion that is simply untenable. In other words, we would respectfully submit that the proper course, if the matter is not to otherwise be determined since it does involve the substantive questions in the way we have outlined, then Your Honour should direct that the findings should be made on the alternative bases so that no evidence is excluded ultimately from the consideration of the High Court when the substantive issues of law raised on the pleadings ultimately are argued.
I think those are the matters that we would desire to put unless there are any other questions that Your Honour has.
HIS HONOUR: No, thank you, Mr Castan. Mr Solicitor, is there anything you want to say?
MR GRIFFITH: Well, Your Honour, it might be useful if we may if we could hear what my learned friend has to say, Your Honour, because I think all we want to say is something which we then thought might be useful to Your Honour to add as a matter of...
HIS HONOUR: Very well. Mr Davies, I can indicate to you that my - and I do not wane to stop you saying anything
because I do think it might be helpful if your
client's attitude was made clear - present feeling
is that I would not interfere with the hearing by
Mr Justice Moynihan of the issues of fact remitted to
the Supreme Court of Queensland including his
dealing with questions of admissibility of evidence
involved in his dealing with those issues of fact.
Well now, having said that, I do not want to say it
and by a back door interfere with what Mr Justice Moynihan is doing by expressing views but I would say that I think it desirable that objections to evidence, if they involve complete exclusion of evidence by your client, in a situation where the matter is coming to this Court, should, if possible, be aimed, as it were, at having alternative issues determined rather than excluding effectively the determination of the matter finally in this Court if one view of the law prevails over another. Now, I do not know if you can be helpful in relation to that.
MR DAVIES: I do not think I can, Your Honour, in the sense that, of course, our client will have regard to the views which Your Honour has expressed. And I think my learned friend, Mr Castan, is correct in saying that the submissions which were made before His Honour Mr Justice Moynihan on behalf of our client were to the effect that His Honour should rule on
S2T4/3/PLC 14 MR CASTAN, QC 13/2/87
Mabo(4) MR DAVIES, QC
questions of evidence as they arose. I do not know, because I have not read the transcript in sufficient detail, but my recollection is that they did not go further and say that having ruled, that the evidence should not even be heard. 8ut I really cannot say anything further than that, I do not think, Your Honour.
HIS HONOUR: But what I would say is I think it is incumbent on all the parties, when they have joined in requesting the remitter of issues of fact to be dealt with by the supreme court, to co-operate to formulate alternative issues which will enable His Honour to make the findings of fact which will enable the matter to be determined by this Court whatever view of the law might ultimately prevail. Well now, having said that there is nothing before me, as I see it, which indicates that His Honour is going to go wrong in his approach to matters or that he is dealing with things that he is not entitled to deal with in resolving the issues of fact and, as I say, I do not propose to interfere with His Honour's dealing with those issues of fact at this stage. Having said that, is there anything further you want to say?
MR DAVIES: No, Your Honour.
HIS HONOUR: Perhaps I should not have said that until I heard you, Mr Solicitor, but I have a rather firm view on it.
MR GRIFFITH: Yes, well, Your Honour, I think our observations are probably not very helpful to Your Honour. It seemed to us, Your Honour, if there is ten weeks set aside for hearing of further evidence, as a matter of general policy, Your Honour, it is appropriate that the result of this evidentiary activity will produce findings on a basis which will enable the Full Court to deal with outstanding issues in one hearing.
HIS HONOLR: That must be pretty plain to everybody, Mr Solicitor.
MR GRIFFITH: We would have thought so, Your Honour. So that when one says, "Well, a finding of fact can be made on one view of admissibility to this extent; on another view, to that extent", it would seem to us your Honour, self-evident, that they should be made in the alternative and that this issue which is identified and, take question 1 which probably in a general form covers it, Your Honour, is one then that can be put before the Full Court in proper form and then the factual finding is there one way or the other, Your Honour, depending on the answer to the question.
Now, we would hope that it is not necessary to take the leave reserved by His Honour the then Chief Justice in his order on 27 February to keep on applying to this Court in chambers to get to that obviously sensible position and if that view which seems to us to be logically compelling prevails, Your Honour, it may well
S2T4/4/PLC 15 MR GRIFFITH, QC 13/2/87
Mabo (4)
resolve the difficulties in the field. Having said that, Your Honour, I probably - I have not added anything to what Your Honour had already said, in effect.
HIS HONOUR: Thank you, Mr Solicitor. Mr Castan, you have a right of reply to what has been said by Mr Davies and what has been said by the Solicitor.
MR CASTAN: I have nothing to add, Your Honour.
HIS HONOUR: Well now, what really remains is would you prefer and the reasons for adopting the course I propose to adopt appear sufficiently from the transcript. I do not propose to take time to repeat them in a formal judgment. What is a matter for you to decide is whether you would prefer that I make a formal order dismissing the summons or that I simply stand it over which largely depends on whether you think there is a likelihood that you may want to agitate the matters elsewhere.
MR CASTAN: Yes. Perhaps we would ask Your Honour to stand it over at this stage. It would seem to be the better course.
HIS HONOUR: Very well, I will stand the summons over generally. My inclination, Mr Davies, would be to simply reserve costs.
MR DAVIES: I was going to ask Your Honour to do that.
HIS HONOUR: And I will reserve costs.
MR CASTAN: If Your Honour pleases, I am not sure whether it is appropriate to ask for a certificate for counsel. I notice that His Honour the Chief Justice certified for counsel on that last occasion...
HIS HONOUR: Well, it can never do any harm, Mr Castan. I certify that the matter was a proper matter for the attendance of senior counsel.
MR CASTAN: If Your Honour pleases.
AT 10.58 AM THE MATTER WAS ADJOURNED SINE DIE
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Mabo (4)
Keywords: Deane, Sir William, Mabo Case, 1987
Transcript of argument before Justice Deane, 13 February 1987.
Author: Kenna, Jonathan
Author: Kenna, Jonathan