At the start of Friday’s hearing of an application for leave to appeal Australia’s first contested determination of compensation for loss of native title, Nettle J made it clear that he and Gordon J saw the topic as clearly deserving attention from the High Court:
Ladies and gentlemen, our present inclination, which is plainly tentative, is to think that the matter raises questions of principles of general importance which would warrant the grant of special leave.
Not only did Western Australia’s Solicitor-General Peter Quinlan fail to convince the Court that the case was a poor one for testing those principles (because the Northern Territory didn’t rely on a statutory rule limiting compensation), but he seemingly opened up a major new issue for the Court to consider: whether extinguishing native title is a deprivation of property for the purposes of the Constitution’s requirement of just terms compensation. The Commonwealth’s counsel Stephen Lloyd cited that issue (which he said would likely attract interventions from every state and territory) as well as the twenty regular appeal grounds now before the Court as reasons why the usual limit of twenty pages per party for submissions on appeal should be lifted to eighty or more, and why the full court hearing would take some four or five days. Calling the latter estimate ‘a little alarming’, Nettle J raised the page limit to fifty and told the parties to find a way to limit the hearing to three days.
Buried in the transcript is a further, relatively minor, but quite unusual issue the High Court will now encounter. Lloyd drew the Court’s attention to:
some secret men’s evidence that was confidential before Justice Mansfield. Different orders were made in relation to that to go to the Full Court which only allowed female judicial officers to see it – no other females have been allowed to see it so, no other court staff or the like.