Clodumar v Nauru Lands Committee

Clodumar v Nauru Lands Committee - [2012] HCA 22 - HCA 2012 case summary — Zoe

[11]

The appellant is a citizen and former President and Minister of the Republic of Nauru. He commenced proceedings in the Supreme Court of Nauru in 2000. He claimed injunctive relief against the Committee to prevent it from giving effect to its decision published in the Government Gazette of 12 July 2000 concerning the ownership of land described as one half of the lands known as "Dabodine" Portion 5 and "Iro" Portion 30, both at Yaren ("the disputed lands").
The appellant asserted that the disputed lands had been transferred to him in or about April 1999 by the late Mr Rick Burenbeiya, who died on 11 June 1999. Under s 3 of the Lands Act 1976 (Nauru) ("the Lands Act") the consent in writing of the President of Nauru ("Presidential Approval") is necessary to the transfer of any interest or estate in land in Nauru. Absent such consent the transfer is "absolutely void and of no effect"[3].
The appellant gave evidence on affidavit in the proceedings in the Supreme Court that "as a matter of course and of tradition and practice" the Committee acts on behalf of Naurans who want to transfer ownership of lands and applies to the President, on their behalf, for consent. That was not a statutory function of the Committee. On 13 April 1999, Mr Burenbeiya had written to the Committee asking it to "process for approval" the transfer of his half share in the disputed lands to the appellant.
By a notice published in the Government Gazette of 20 October 1999, the Committee stated that it had ascertained that Mr Burenbeiya had been determined by previous decisions of the Committee to be the owner of lands which included the disputed lands. By the same notice, the Committee determined that Mr Burenbeiya's widow was a beneficiary of his estate in respect of those lands.
On Mrs Burenbeiya's death, the Committee, apparently in the exercise of its statutory function, determined a distribution of her estate in relation to a number of pieces of land, including the disputed lands. That determination first appeared in Government Gazette Notice 209/2000 dated 12 July 2000 and listed a number of people as beneficiaries of the estate.
The appellant commenced two related proceedings in the Supreme Court on 9 August 2000. The first, Action No 16/2000, named the Committee as the defendant. The second, Action No 17/2000, named the Curator of Intestate Estates as the defendant. On 10 August 2000, the Chief Justice issued an interlocutory injunction in Action No 16/2000 restraining the Committee from taking any action to implement its decision of 12 July 2000.
It was not in dispute that the proceedings against the Committee in Action No 16/2000 were not by way of an appeal to the Supreme Court against a decision of the Committee. Under the law of Nauru no appeal would lie to this Court from a decision of the Supreme Court on such an appeal[4].
On 12 March 2001, Connell CJ directed that Actions 16 and 17 be heard together. Memoranda of appearance were filed for the defendants but no defences. On 19 February 2002, the actions were heard by Connell CJ. On that day the Chief Justice issued final orders in the proceedings against the Committee in Action No 16. There is no record of any orders made in respect of Action No 17. His Honour found that the asserted transfer from Mr Burenbeiya to the appellant had not been perfected because of the want of Presidential Approval, required by s 3 of the Lands Act. He also held that Mrs Burenbeiya only had a life interest in her husband's estate. The estate that should have been distributed consisted of Mr Burenbeiya's reversionary interests in the disputed lands. His Honour made orders directing that the Committee withdraw its Gazette Notice of 12 July 2000 and that it call a family meeting to determine the reversionary interests in the estate of Mr Burenbeiya. The appellant was to be invited to attend the meeting.
There were before this Court two affidavits sworn by Mr David Lambourne, the Secretary for Justice and Border Control for the Republic of Nauru. He had reviewed the court files in Actions No 16 and 17 of 2000. He exhibited the Chief Justice's trial notes and prepared a typed transcript of them. He noted that at the hearing of the actions on 19 February 2002 the Committee was represented by its Chairman, Mr Leslie Adam. Mr Adam died in Nauru on 5 October 2011. Other than the entry of an appearance, there was no record of the Curator of Intestate Estates participating in Action No 17. According to Mr Lambourne, the current practice and the practice in 1999 was that any files relating to an application for transfer of land would have been held by the Department of Island Development and Industry[5]. Mr Lambourne noted in his affidavit that any records of the Department of Island Development and Industry that remain from 1999 are now held by the Department of Commerce, Industry and Environment. A search of the departmental records found no documents relating to this matter.
On 28 February 2002, the Committee held a meeting of interested parties at which the appellant again raised his claim to the disputed lands. The Committee met again on 13 February 2009 and 18 February 2010. The reasons for this protracted process do not appear from the materials before this Court. On 2 June 2010, the Committee published in the Government Gazette a determination listing the second respondents as the beneficiaries of the estate of the late Rick Burenbeiya in respect of various pieces of land, including the disputed lands. The determination was replaced by another determination on 11 August 2010. Its purpose was to make a minor amendment by adding an additional beneficiary.
The appellant appealed to the Supreme Court of Nauru against the Committee's determination of 2 June 2010, as amended by that of 11 August 2010. The appeal was evidently made pursuant to s 7 of the Lands Committee Act. It was based upon the appellant's claim as transferee from Mr Burenbeiya, to be entitled to the disputed lands. That was the claim he had advanced before Connell CJ. The appeal came on for hearing in March 2011. The appellant was represented by Mr Keke. The Committee was represented by Mr Lambourne. According to the appellant's affidavit, in the course of the hearing while he was seated in Court, he was handed some documents by Mr Pres‑Nimes Ekwona, who was a pleader of the Supreme Court of Nauru. The documents appeared to be copies of documents relating to submissions made to Cabinet in 1999 in relation to land transfers. One of the documents was a copy of a signed approval of various land transfers, including one executed by the former President of the Republic of Nauru on 21 May 1999. The appellant handed the documents to Mr Keke who sought to tender them to the Court. In the event, Eames CJ adjourned the further hearing of the appeal for mention at a callover and gave the appellant 28 days to initiate an application for leave to appeal to this Court against the decision of Connell CJ in Action No 16/2000. The appellant's account of events at the hearing before Eames CJ was supported by an affidavit sworn by Mr Ekwona and filed in these proceedings. Mr Ekwona said he had noticed the Presidential Approval among papers given to him by a client in connection with proceedings concerning other lands owned by the late Mr Burenbeiya.

[15]

Before considering the issues, it is convenient to have regard to the evidence which this Court is now asked to receive. In an affidavit sworn on 18 May 2011 the appellant said that at the time of the hearing before Connell CJ the Committee informed the Court that there had been no Presidential Approval granted for the transfer of the disputed lands to the appellant. According to Mr Lambourne's affidavit, there was no record on the Court file or in the primary judge's notes that any representative of the Committee had so informed the Court. Mr Adam had died before Mr Lambourne could speak to him. The appellant said that he and his lawyer had tried, prior to the proceeding in the Supreme Court, to inspect government files relating to the transfer but were told by a legal representative of the Committee that if there was any such file it had been lost.
The appellant exhibited to his affidavit the documents which, he said, had been given by Mr Ekwona on 22 March 2011. Among those documents were copies of signed approvals of transfers including an approval executed by the President on 21 May 1999. The document contained a recommendation for approval of certain transfers, including a transfer by Mr Rick Burenbeiya of "his share of coconut bearing lands to Mr Kinza Clodumar at folio 74". The appellant stated his belief that the document was a true copy of a genuine Presidential Approval. The Committee did not dispute its authenticity.
The history of the document and an explanation for its unavailability appeared from an affidavit sworn on 7 December 2011 by Mr Namaduk, who was a Minister in the Cabinet of President Harris in May 1999. He recalled that there was considerable public discussion at the time of the need to regulate land transfers in Nauru. He also recalled the day upon which the approval for the transfer of the disputed lands was signed by the President. The appellant himself was a member of the Cabinet at the time, but did not attend the Cabinet meeting during discussions relating to the transfer. After approving the transfer among others, the President gave Mr Namaduk a file containing the approvals which he had signed. He asked Mr Namaduk to look after the file until Cabinet had completed its discussions on further regulation of such transfers.
Mr Namaduk placed the file in his office and did not disclose its existence to other members of the Cabinet including the appellant. The file remained in Mr Namaduk's office until President Harris' government lost office following its defeat on the floor of the Parliament in April 2000. Mr Namaduk then vacated his ministerial office and took with him boxes containing files, including the file relating to the transfer approvals which had been given to him by the President. In or about November 2011, following an approach from the appellant's solicitor, Mr Namaduk located the file.
A copy of the contents of the file was exhibited to Mr Namaduk's affidavit. The exhibits included a copy of the Presidential Approval document given to the appellant by Mr Ekwona at the Supreme Court. That document did not itself specify the portions of the land whose transfer is approved, but refers to a folio number 74 on the file. The folio numbered 74, also exhibited to Mr Namaduk's affidavit, was a minute from the Committee setting out the proposed transfers and indicating that the Committee had no objection to their approval. The disputed lands were identified on that minute.
On the face of it, the evidence that President Harris was asked to approve and did approve the transfer of the disputed lands to the appellant during the lifetime of Mr Burenbeiya was cogent. That conclusion did not mean that that evidence must be accepted. It was not tested in this Court. What, if any, weight is to be attributed to it will be a matter for the Supreme Court of Nauru to determine on retrial. But it is clear that if accepted the evidence could alter the outcome of the proceedings.
There was also evidence tendered before this Court that there was little that the appellant could reasonably have been expected to do to ascertain the existence of the Presidential Approval at the time of the proceedings before Connell CJ. The appellant was represented in the Supreme Court by Mr Peter MacSporran, a legal practitioner in Australia and Nauru. The appellant had instructed him in July 2000 to advise in connection with the transfers of the disputed lands. His instructions were that the transferor had died before the Committee had done anything to give effect to the intention of the transferor to transfer the disputed lands. Mr MacSporran ascertained that no transfer had been gazetted. Although not a legal requirement, it was standard practice for all transfers to be gazetted once approved. In Mr MacSporran's experience, the Committee was always promptly informed when an application for approval of a land transfer had been approved or rejected. The fact that the Committee was unaware of the fate of the application for approval of the disputed lands indicated to him that the application had not been considered by the President. The proceedings in the Supreme Court were issued and conducted by both parties on the assumption that approval had not been given.
Mr MacSporran said that the Chairman of the Committee submitted to the Supreme Court that the transfers were invalid for want of the requisite approval. As noted above, there was no record on the Court file or in the trial notes of Connell CJ of any such statement by the Chairman. But then the notes did not record the appearances of either Mr MacSporran or the Chairman. Mr MacSporran made other submissions, relying upon customary law and the proposition that the gift was in the class of donatio mortis causa. Those submissions were not accepted.

[34]

HEYDON J. This is an appeal against a decision of the Supreme Court of Nauru (Connell CJ) given on 19 February 2002. The decision related to an attempted transfer of certain lands. Connell CJ held that the attempted transfer was ineffective because the President of the Republic of Nauru had not approved the transfer. The appellant seeks to tender on the appeal a recently located document expressing a Presidential approval.
The appeal is brought as of right under s 5 of the Nauru (High Court Appeals) Act 1976 (Cth) ("the Act"). The appeal is more than 9 years out of time[24]. That is a procedural irregularity[25]. But this Court has power to grant the appellant an extension of time[26].
The issues before this Court correspond with the first respondent's three basic submissions.
First, the first respondent submitted that this Court has no power to receive fresh evidence on an appeal under s 5 of the Act. It argued that the reference to "appeals" in s 5 is a reference to appeals "in the strict sense" - appeals that are "to be determined on the material before the primary court [where] the introduction of fresh evidence is not permitted". The first respondent submitted that time should not be extended because without the fresh evidence the appeal is doomed to failure.
Secondly, the first respondent submitted that even if this Court does have power to receive fresh evidence, the evidence in question does not meet the requirements that must be satisfied before the Court could receive it, and hence time should not be extended.
Thirdly, the first respondent submitted that even if this Court does have power to receive fresh evidence and even if the requirements for doing so are satisfied, time should not be extended because of the prejudice this would cause the first respondent.
I disagree with the orders made at the conclusion of oral argument. At least in these proceedings, the first submission of the first respondent should not be rejected. In the interests of brevity, this judgment will address only the appellant's arguments on this "fresh evidence" point. Those arguments can be grouped as follows.

[35]

The appellant contended that s 8 of the Act[27] was a source of power for this Court to receive fresh evidence. That contention must be rejected. Section 8 deals with what orders this Court can make. But it is silent about what materials this Court can consider in deciding what orders it should make.
The appellant submitted that s 8 of the Act requires this Court to apply the law of Nauru in hearing and determining the appeal[28]. The appellant submitted that the starting point in ascertaining the law of Nauru is the common law of England on 31 January 1968. He relied on s 4 of the Custom and Adopted Laws Act 1971 (Nauru) in support of this proposition. The key words in it are "the common law and the statutes of general application ... which were in force in England" on 31 January 1968. The appellant submitted that the appellate courts of England had power to receive fresh evidence. He argued that this Court "should ... adopt the same approach in relation to Nauru appeals."
The first respondent attacked these submissions on the following convincing grounds. The jurisdiction and powers of this Court depend on the Act, not on the law of Nauru. The relevant question is whether the Act permits fresh evidence. The law of Nauru cannot affect whether the Act permits fresh evidence. In any event, the powers of English courts to receive fresh evidence in appeals arise not from the common law but from enactments. It is questionable whether those enactments are "statutes of general application" within the meaning of s 4.
The appellant responded to these attacks by pointing to s 46 of the Courts Act 1972 (Nauru). It provided that in certain circumstances the Supreme Court of Nauru's jurisdiction is to be exercised in accordance "with the law and practice for the time being observed in England in the High Court of Justice". This has no bearing on how the High Court of Australia's jurisdiction is to be exercised in relation to the reception of fresh evidence on appeal from the Supreme Court of Nauru.

[62]

It is not clear whether the view that fresh evidence could be received was argued or was agreed between the parties. The unusually tentative words "I think" suggest that it was not argued. Counsel for the Commissioner, in his reply, applied for leave to call evidence on a particular point. Starke J refused leave on the ground that the point was outside the grounds of appeal.
Does Starke J's reasoning support the appellant in this appeal? One obstacle may be that an appeal to the High Court from a decision in the exercise of the judicial power conferred on the Supreme Court of Nauru is different from an "appeal" by way of judicial review of an administrative act.
The appellant did not rely on the argument under consideration in any of his three sets of written submissions. He did not do so in his oral submissions either (though these were limited to questions of relief). Counsel for the first respondent was asked a single question about s 77H of the Judiciary Act. But counsel had no opportunity to conduct a calm and unhurried examination of the argument under consideration from the point of view of either principle or authority. Neither Starke J's decision nor any other authority was cited to this Court. Since the appellant did not rely on the argument, the first respondent was not concerned to refute it. It was for the parties to draw up the lines along which their battle was to be fought. They were entitled to limit themselves to those battle lines. Of course no court is bound by propositions of law on which the parties agree[47]. Similarly, no court is bound by the parameters of legal debate on which the parties settle. But if the outcome of litigation is going to depend on departure from the propositions or parameters the parties agree on, it is necessary that they be given notice sufficient to enable them to make a proper examination of principle and authority[48]. In particular, notice must be given to the party who will lose because of the departure - here the first respondent. It is undesirable to proceed much further with any examination of principle and authority without the assistance which events precluded counsel, particularly counsel for the first respondent, from giving in this case. For those reasons, the appellant ought not to succeed on the argument under consideration in the particular circumstances of this appeal.
Before moving from that argument, however, there are three factors which might have to be evaluated in a case in which the argument was put. They are analysed on the assumption that the crucial provision is s 20(1) of the Procedure Act, though they apply with equal force if the crucial provisions are ss 20 and 21 of that Act read together.
One factor is that s 20(1) appeared in Div 5 of Pt II of the Procedure Act. Part II was headed "Procedure of the High Court". Division 5 was headed "Evidence". None of the 10 Divisions of Pt II dealt in terms with appeals to the High Court. Part III, on the other hand, was devoted to "Appeals" to the High Court. Division 1 of Pt III dealt with "Security" and Div 2 dealt with "Procedure". But no provision of Pt III dealt with evidence. In 1903, it is likely that most, if not all, "appeals" to the High Court would have been s 73 appeals. This raises a doubt whether Pt II Div 5 was to be construed as applying to "appeals" under statutes enacted pursuant to s 76(ii).
The second factor is that s 20(1) was enacted at a time which renders it highly unlikely that it was to be construed as applying to appeals to this Court from the Supreme Court of Nauru. In 1903, Nauru was a German colony. Australia was part of the British Empire. Appeals lay from Australian courts to the Privy Council. But no appeal lay from any non-Australian court to an Australian court. The tumultuous circumstances of the next 70 years - the outbreak of the First World War, Germany's loss of its colony, Nauru's successive passage through the League of Nations mandate system to Japanese occupation and then to the United Nations trustee system, the evolution of Nauruan and Australian independence, and the agreement of Nauru and Australia to establish a regime for appeals from the Supreme Court of Nauru to the High Court - are quite different from those which existed when the provisions were enacted.
The third factor is that a construction of s 20(1), and now s 77H(1) of the Judiciary Act, as conferring a power to receive fresh evidence in "appeals" to this Court brought pursuant to statutes enacted under s 76(ii) is highly improbable in the absence of words defining the "conditions and limits of the exercise of the power", to use Gleeson CJ's expression. Legislation providing for the reception of fresh evidence in intermediate appellate courts very commonly contains words of that kind. Sometimes they consist simply in the grant of a simple discretion. One example is the simple discretion given by s 93A(2) of the Family Law Act 1975 (Cth), considered in CDJ v VAJ[49]. Another technique is found in the more constrained discretion granted by the Supreme Court Act 1970 (NSW), s 75A(7)‑(9)[50]. Those sub-sections provide that, although the Court of Appeal "may receive further evidence", save for evidence concerning matters occurring after a trial or hearing, the Court "shall not receive further evidence except on special grounds". What constitutes special grounds has been treated as resting on the same principles as those the common law courts applied to motions for a new trial on the ground of fresh evidence[51]. Dixon CJ summarised those principles in Wollongong Corporation v Cowan[52]:

[70]

If s 20(1) of the Procedure Act is to be construed as dealing with the tender of fresh evidence on "appeals" brought in this Court's original jurisdiction pursuant to legislation enacted under s 76(ii), what are the statutory words which define what Gleeson CJ called the "conditions and limits of the exercise of the power"[53]? There are none. Even if s 20(1) were read as dealing with fresh evidence in those appeals, it did not confer a discretionary power to receive fresh evidence. In this it differs from the enactments just discussed. Section 20(1) gave this Court power to control whether evidence was given by affidavit or orally. But it did not give power to prevent parties tendering evidence which was relevant and complied with the rules of admissibility so long as it was given either on affidavit or orally. It obliged the Court to receive the evidence.
To find words creating restrictions on the reception of fresh evidence under s 20(1) and s 77H(1), it is necessary to add to the words which Parliament used, which are wholly inadequate for that purpose, numerous other words which Parliament did not use. Without words defining some conditions and limits, the right of appeal would create an opportunity, for example, to run the case advanced in the Supreme Court of Nauru entirely afresh in this Court. The parties could tender all evidence seen to be relevant, whether or not it was relied on in the Supreme Court of Nauru. It would mean that the right of appeal from the Supreme Court of Nauru to this Court is a right to a "hearing de novo". Mason J (Barwick CJ and Stephen J concurring) described a hearing de novo as one in which "even if it be the defendant who appeals, the [moving party below] starts again and has to make out his case and call his witnesses."[54] In a hearing de novo the parties to the appeal are unrestrained by the limits of the evidence they called at the trial. If s 77H(1) were construed favourably to the appellant, the width of the power to receive fresh evidence in appeals from the Supreme Court of Nauru to this Court would be so extensive that the trials from which those appeals were brought could be employed as a mere rehearsal or warm-up or dummy run. It is extremely improbable that s 5 of the Act read with s 20(1) of the Procedure Act or with s 77H(1) of the Judiciary Act permits that outcome. If it did, to use Lord Chelmsford's words in Shedden v Patrick and the Attorney‑General[55]:

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