Last week, the High Court hosted a directions hearing before Nettle J for a coming appeal concerning compensation for loss of native title. The native title in question is around Timber Creek, in the northwest of the Northern Territory, but the hearing was held in Melbourne, some 4000km away. Its main purpose was to make orders about who can see gender-specific evidence relevant to the case, as outlined in this earlier post. Justice Nettle held that the evidence can be seen by the seven High Court justices (male or female), court staff (including associates) who any justice determines can hear the evidence (again, male or female), lawyers and experts who need to view the evidence (but only if they are men) and anyone else (but only with a court order after notice to the parties.) In passing, he noted that the case would be heard before all seven judges of the Court.
At the hearing’s conclusion, Nettle J made a further announcement:
Finally, lady and gentlemen, I should announce that subject to final confirmation, which will not be before the second week of June, it is intended that the appeals be heard in Darwin in the Supreme Court of the Northern Territory on 3 to 6 September of this year.
This announcement, if it eventuates as planned, will save the Solicitor-General for the Northern Territory, Sonia Brownhill, and her staff, the cost of a a flight to Canberra and related accomodation costs, but will presumably impose those same costs on the other barristers involved in the case, including Sturt Glacken (representing the native title parties) and Stephen Donaghue (the Solicitor-General of the Commonwealth), both based in Melbourne. Importantly, the venue makes it easier for the native title claimants themselves, as well as other Territorians interested in the proceedings, to attend at the full court hearing. (In last week’s hearing, the Court was informed of the death of one of the native title parties, a matter that is of minor procedural significance – there is another living party – but of cultural significance because of traditions around the use of deceased persons’ names.)
If the Court sits in Darwin, it will resolve a long-standing gap in the High Court’s devotion to its Australia-wide ‘circuit’, which has reached every other capital city in the last three years alone, but seemingly has never reached the Territory capital, a matter Kirby J noted in a speech 16 years ago:
In June, as in Chief Justice Griffith’s days, we return to his beloved Brisbane. In August, the Court travels to Adelaide for a week. In October, it is Perth. Chief Justice Barwick, a keen yachtsman, always attempted to visit Hobart for the Regatta Week in March. Now, the Court only travels to Hobart if business permits; and this is comparatively rare. It does not yet travel to Darwin, although business there has been comparatively brisk.
The High Court has heard at least fifty appeals from the Supreme Court of the Northern Territory including eight matters between 1997 and 1999, not counting federal court appeals and original jurisdiction matters sourced from the Territory. In the last five years, the Court has heard around one decision from the Territory annually, about twice what would be expected given the Territory’s small population. The Court’s decision to sit in Darwin this year may be due to the native title case requiring three sitting days to resolve, as well as the coincidence of separate constitutional matter to be heard from the Territory that will also require the involvement of all seven judges. The Court will surely sit in the Northern Territory Supreme Court’s ‘ceremonial/appeals’ courtroom, which can seat 186 in its public gallery, and has what looks like just enough room to seat all seven High Court justices. Justice Nettle concluded:
It may be a little tight given the dimensions of the courtroom and the number of counsel involved in the proceeding but we are doing our best to accommodate those difficulties so far as they can be.