REASONS FOR JUDGMENT
THE COURT:
Introduction
1 On 2 March 2007, for reasons then published, this Court made the following orders in this appeal:
- The appeal be allowed.
- The order made on 11 October 2005 be set aside and in lieu thereof it is declared that the Fisheries Act 1988 (NT):
(a) has no application in relation to areas within the boundary lines described in the Deeds of Grant known as the Arnhem Land (Mainland) and Arnhem Land (Islands) Grants made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth);
(b) does not confer on the second respondent a power to grant a licence under that Act, which licence would authorise or permit the holder to enter and take fish or aquatic life from areas subject to the Grants;
(c) is invalid and of no effect in so far as it purports to operate with respect to areas subject to the grants.
Gumana v Northern Territory of Australia [2007] FCAFC 23
The main point in issue in the appeal concerned the interaction between the grant of an estate in fee simple under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) and the legislative power of the Northern Territory to issue fishing licences in intertidal areas covered by such grants.
2 The matter is one of some importance and it is not surprising that the Northern Territory has foreshadowed its intention to seek special leave to appeal to the High Court against this Court's decision. The parties have consented to orders with a view to preserving the status quo pending the outcome of the special leave application. The proposed consent orders are as follows:
1. The orders of the Full Court made on 2 March 2007, allowing the appeal in proceeding NTD33 of 2005 and setting aside the orders made by the Court below, be stayed until either:
(a) the High Court refuses special leave to appeal; or
(b) the High Court finally determines any appeal for which special leave is granted.
2. Order 1 above is contingent upon the First, Second or Third Respondents filing an application for special leave to appeal from the Full Court's decision in proceeding NTD33 of 2005 within 28 days of 2 March 2007.
3 The question which now arises is whether a declaratory order can be stayed.
Statutory framework
4 Section 25 of the Federal Court of Australia Act 1976 (Cth) provides, inter alia:
(1) The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.
…
(2) Applications:
…
(d) to stay an order of a Full Court;
may be heard and determined by a single judge or by a Full Court.
Whether a declaratory order can be stayed
5 In Bunnings Forest Products Pty Ltd v Bullen (1994) 54 FCR 342, Carr J could find no authority for the proposition that the Court has power to stay a declaratory order. His Honour said (at 347):
… if an appeal were foreshadowed and the circumstances warranted taking such a course, a Full Court might before pronouncing judgment or, perhaps, before entry of judgment stay a declaratory order by suspending or postponing its coming into effect for a period fixed by reference to some appropriate stage of the further appellate process. Alternatively, the court or a judge might, in an appropriate case, stay the exercise of rights which might be declared to exist, pending an appeal which might have the result of the declaration being set aside.
His Honour declined to make the order sought in that case which was for a stay of a declaratory order.
6 The proposition that there is no power to stay a declaratory order was accepted by Kiefel J in Re Sol Theo; Ex parte Sol Theo [1996] FCA 787. Katz J "as a matter of comity" adopted the same proposition in Stellar Call Centres Pty Ltd v Community and Public Sector Union [1999] FCA 1236 at [12]. He also accepted, however, the other observation made by Carr J that a stay might be ordered against the exercise of rights which might be declared to exist. See also Long v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 774 per Nicholson J at [19].
7 In Roosters Club Inc v Northern Tavern Pty Ltd (No 2) [2003] SASC 143 the Full Court of the Supreme Court of South Australia dismissed an appeal against a decision of a single judge of the Court in which the judge declared that the grant of a gaming machine licence to the appellant was void because it had been made in contravention of the relevant State statute. At the time of making the declaration the judge also made an order that the declaration be stayed until further order. The Full Court dismissed an appeal from the judge's decision. In considering whether a stay could be ordered in relation to the declaration pending a special leave application to the High Court, Doyle CJ observed (at [18]):
Conceptually, it is difficult to see how the Court can stay what it has already declared, namely, that the grant of the licence is void.
His Honour referred to Bunnings Forest Products 54 FCR 342and textbook support for the view that a declaratory order cannot be stayed. He also observed that the application for a stay seemed to be premised on the assumption that a stay would have the effect of deeming the appellant to hold a licence under the Act even if ultimately the decision of the judge declaring it void were to stand (at [20]). His Honour said (at [21]):
My view is that that assumption is wrong. I consider that a stay cannot alter the situation in that manner. If the decision of this Court and of the single judge stands, the position will be that the appellant does not hold the licence in question, and has never held it. That is the consequence of the terms of s 15A(2) of the Act. Even if this Court were to continue the stay, my view is that if the decision of the single judge stands, the appellant will not have held the licence in question at any stage, and that this will be so notwithstanding the stay granted by the single judge.
And further (at [22]):
The grant of a stay cannot confer immunity from the consequences of an ultimate decision that the grant of the licence is void, in respect of the period between the grant of the licence and the making of that ultimate decision. If the ultimate decision is that the licence is void, it has been void from the outset. The Court cannot, by granting a stay, avoid whatever consequences may flow from that result, in respect of the period pending the ultimate decision.
The Chief Justice saw no point in ordering a stay. While realising that it put the appellant in a difficult position, he took the view that the grant of a stay would be misleading if it were taken by the appellant to be providing it with protection. Nyland and Bleby JJ agreed. Bleby J also agreed with what Carr J had said in Bunnings Forest Products 54 FCR 342 and added that the circumstances which might warrant taking one of the alternative courses suggested by Carr J would only be appropriate when a declaratory order had some prospective effect. There was nothing however that the Court could do in the case before it to render the grant valid for a period pending the hearing of an application for leave to appeal (at [45]). See also Jeans v Bruce [2004] NSWSC 758 per Einstein J. Reasoning similar to that of the Full Court of the Supreme Court of South Australia was applied by Buss JA in the Court of Appeal of Western Australia in Smolarek v Brian Keith McMaster as Administrator of Eznut Pty Ltd [2006] WASCA 216 where his Honour said, of a declaration that the appointment of administrators to a company was valid (at [30]):
It merely declared, as between the parties and subject to any right of appeal, that their appointment was valid. Secondly, if this Court were to decide in the present appeal that the appointment of the administrators was invalid, it will always have been invalid.
8 Having regard to the preceding authorities it is difficult to see any basis for, or any utility in, the orders sought. The orders proposed are by consent but the Court will not make an order by consent unless it is within power and appropriate. The declaration made in this case is similar in character and effect to that which was the subject of consideration by the Full Court of the Supreme Court of South Australia in Roosters Club Inc v Northern Tavern Pty Ltd (No 2) [2003] SASC 143. Like the stay proposed there, the stay proposed here could be misleading and engender a false sense of security. If licences issued under the Fisheries Act 1988 (NT) do not validly authorise fishing in the intertidal zone the position is not changed by staying the declaration. Nor is the essential dilemma resolved by delaying entry or "suspending" the operation of the declaration whatever that may mean.
9 It is important to observe that this does not prevent the parties from making any such agreement as they wish pending the outcome of the special leave application. Indeed, it may be that it is possible under s 19 of the Land Rights Act for the Northern Land Council to grant a licence to all holders of licences issued under the Fisheries Act to continue to operate in the intertidal zone in accordance with the terms of their licences until the special leave application is heard and determined. As to whether that mechanism is available to resolve the undoubted practical difficulty, pending the special leave application, thrown up by the orders of 2 March 2007 is a matter on which we express no concluded view. It is for the parties to take their own counsel in that regard.
Conclusion
10 For the preceding reasons, the proposed consent orders should not be approved.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French, Finn and Sundberg.