Utemorrah v Commonwealth [1992] HCA 37; (1992) 108 ALR 225 (14 August 1992)

HIGH COURT OF AUSTRALIA

UTEMORRAH AND ORS v THE COMMONWEALTH OF AUSTRALIA AND ANOR
F.C. S.92/004

High Court of Australia
Toohey J.(1)

CATCHWORDS

HEARING

PERTH
14:8:1992

DECISION

The plaintiffs have brought proceedings in this Court against the Commonwealth of Australia and the State of Western Australia.

2. The statement of claim alleges that the plaintiffs are members of the Wunambal, Ngarinyin and Worora language groups and that they have, as their predecessors had, traditional title to land in the Kimberley Region. It seeks declaratory and other relief against both defendants.

3. The writ was issued on 2 July 1991. Neither defendant has filed a defence. The action has not proceeded pending a decision by the Court in Mabo v. Queensland (1) [1992] HCA 23; (1992) 66 ALJR 408; 107 ALR 1. Judgment in that case was delivered on 3 June 1992. The plaintiffs anticipate making amendments to their statement of claim in the light of that decision and other considerations. Counsel for the Commonwealth said that for this reason no defence had been filed. Counsel for Western Australia said that the State was awaiting an amended statement of claim rather than applying, at this stage, to strike out parts of the pleading or to seek clarification of it. Notwithstanding the absence of defences, the defendants accepted that there is pending in the Court a matter which may be remitted to the Federal Court of Australia or to the Supreme Court of Western Australia pursuant to s.44 of the Judiciary Act 1903 (Cth).

4. The application presently before me is a summons by the plaintiffs for an order that:

"1. This matter be remitted forthwith to a Justice of the
Federal Court of Australia for the purpose of hearing at Mowanjum,
via Derby, as a matter of urgency, the oral evidence of: ..."

There follow the names of 28 persons, many of whom are plaintiffs in the action. The reason advanced for the application is that several plaintiffs who were potential witnesses have died since proceedings were commenced and that other plaintiffs and witnesses are, by reason of age and ill health, likely to be unable to give evidence at a trial conducted following the close of pleadings, the completion of interlocutory steps on both sides and preparation for trial in the ordinary way.

5. There is a problem with the summons in its present form. It is one thing for this Court, seized of a matter, to make an order for the examination on oath of a witness or person "before the Court, Justice, an officer of the Court or any other person, and at any place". Order 37 r.3(1)(a) of the High Court Rules ("the Rules") authorises such a step. But an order in those terms contemplates that the Court itself will hear the proceeding. As I understand counsel for the plaintiffs, that is not a course the plaintiffs ask to be followed. Certainly, it is not one to which the Court is likely to accede. It is another thing to remit a matter to the Federal Court or to a Supreme Court which may itself make such an order in the course of its disposition of the action. But, in its present form, the summons invites this Court to order a remitter for the purpose only of directing "a Justice of the Federal Court of Australia" to hear at Mowanjum the oral evidence of the witnesses named. Such an order is not contemplated by the Rules; in any event it is not an order I am prepared to make.

6. As the argument developed, it became clear that what the plaintiffs really seek is a remitter of the whole matter. The defendants agree that a remitter in that form is the appropriate course.

7. In Mabo v. The State of Queensland (2) [1986] HCA 8; (1986) 60 ALJR 255; 64 ALR 1. Gibbs C.J. made an order on 27 February 1986:

"1. THAT all issues of fact raised by the pleadings,
particulars and further particulars be remitted to the Supreme
Court of Queensland for hearing and determination."

In making that order the Chief Justice said (3) ibid., at p 257; p 4 of ALR:

" 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."

Although the reasons for this agreement and its acceptance by the Court do not appear in express terms in the judgment of Gibbs C.J., it is apparent that the claim in Mabo raised questions of fundamental importance for which there was a dearth of authority and that it was thought better for this Court to reserve to itself the answers to those questions rather than that the course of the hearing be determined by the trial judge's view of the legal principles applicable. Now that judgment in Mabo has been delivered, there is no good reason why a remitter in the present action should not be in general terms.

8. The real issue is whether a remitter should be to the Federal Court or to the Supreme Court of Western Australia. Counsel for the Commonwealth made no particular submission on this aspect. Counsel for Western Australia argued that a remitter should be to the Supreme Court of Western Australia rather than to the Federal Court. Her submissions were, first, that the claim is primarily one between the plaintiffs as residents of Western Australia and the State, involving land within Western Australia. She further argued that the claim involves the interpretation of a large number of statutes of Western Australia, that the Supreme Court has substantial experience in hearing matters involving Aboriginal witnesses, both in Perth and in remote locations, and that the Expedited List of the Supreme Court (see O.31A of the Rules of the Supreme Court 1971 (W.A.)) contains mechanisms by which any aspect of the plaintiffs' claim requiring an expedited hearing may be dealt with. For her part, counsel for the plaintiffs submitted that a remitter should be to the Federal Court. She referred to questions of federal law inevitably raised by the claim, in particular the interpretation of the Constitution and Commonwealth statutes.

9. The question of the court to which the matter should be remitted is one similar to that faced by Gibbs C.J. in the application in Mabo. As his Honour said (4) ibid., at p 256; p 3 of ALR:

" It is hardly necessary to say that either of the two
courts could satisfactorily resolve the issues of fact in the case."

The work of the Federal Court often involves determining the meaning and operation of State statutes; equally, the Supreme Court regularly decides questions relating to Commonwealth statutes. In any event, the existence of cross-vesting provisions since 1987 (5) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and Jurisdiction of Courts (Cross-vesting) Act 1987 (W.A.).gives this sort of comparison less significance than it might once have had. There is no reason to think that the procedures of one court are more effective to deal with this action than the procedures of the other.

10. The balance of convenience, which may be a compelling consideration in remitter applications, has no particular part to play here. In the end I am driven, in the resolution of this aspect, by much the same considerations as persuaded Gibbs C.J. in Mabo to order a remitter to the Supreme Court of Queensland, namely, the close connection of the action with Western Australia and the fact that if the action had not been commenced in the High Court it would (subject to any cross-vesting considerations) have been brought in the Supreme Court of Western Australia. Notwithstanding a contrary submission by counsel for the plaintiffs, the fact that questions may arise touching both the Constitution of the Commonwealth and the Constitution of Western Australia is not an obstacle to the Supreme Court entertaining the claim.

11. Despite the absence of pleadings, it is not premature to order a remitter at this stage. Rather, having regard to the age and state of health of witnesses who may well be vital to the plaintiffs' case, it is appropriate that an order be made now remitting the matter to the Supreme Court of Western Australia.

12. I shall hear from counsel as to the precise terms of the order to be made.

ORDER

Remit the matter to the Supreme Court of Western Australia.

Reserve the costs of the plaintiffs' summons.