Congoo on behalf of the Bar-Barrum People #4 v State of Queensland [2013] FCA 1113 | Case summary

Congoo on behalf of the Bar-Barrum People #4 v State of Queensland [2013] FCA 1113 | Case summary | Zoe

[18]

REASONS FOR JUDGMENT 1 On 9 August 2013, pursuant to s 25(6) of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act), I reserved for the consideration of the Full Court in this matter three questions: Question 1 Did the Military Orders made under the National Security Regulations purport to effect an acquisition of the property of the Bar Barrum People otherwise than on just terms contrary to s 51(xxxi) of the Constitution? Question 2 If the answer to question 1 is "yes": (a) were the National Security Regulations (insofar as they authorised or purported to authorise the making of the Military Orders) and the Military Orders, and/or being in physical occupation of the special case land pursuant to the Military Orders, "past acts" under the Native Title Act? (b) and, if so, were they validated under the Native Title Act? Question 3 Did the act of the Commonwealth in: (c) making the Military Orders wholly extinguish all native title rights and interests that then subsisted on the special case land, and, if not, (d) being in physical occupation of at least some of the special case land pursuant to the Military Orders wholly extinguish all native title rights and interests that then subsisted on the special case land or that part of the special case land that had been physically occupied? 2 At the same time, inter alios, I directed the giving of a notice to the attorneys-general of the States and Territories pursuant to s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act). The State of Queensland was already a party, as it had to be, to the proceeding. The Commonwealth Minister administering the Native Title Act 1993 (Cth), the Attorney-General, when the issues which came to culminate in the stating of questions to the Full Court emerged in this and related native title proceedings instituted by the Bar Barrum people, had already chosen to intervene pursuant to the express provision for that, in s 84A of that Act. A sequel to the giving of the notices pursuant to s 78B of the Judiciary Act has been a signification by the Attorney-General for the Northern Territory of an intention to intervene in the hearing of the case stated before the Full Court. 3 None of the respondent parties in this particular native title proceeding have signified an interest in being heard before the Full Court on the hearing of the case stated. 4 The case stated is listed for hearing in the November sittings of the Court before a Full Court constituted by North J, myself and Jagot J. I should indicate that, in respect of the interlocutory application today, I have consulted in advance with North J and Jagot J in relation to the application. They, like me, are of the view that it is both permissible and appropriate for today's application to be heard by a single judge. 5 What is, then the nature of the application made today? A stranger to the proceedings, namely the applicant in another native title proceeding before the court, the applicant in respect of a claim by the Butchulla People No 2, in proceeding QUD 287 of 2009, has applied to intervene in respect of the case stated proceeding pending before the Full Court. 6 The material filed in support of the application by the Butchulla People discloses that the land the subject of that native title claim, which comprises around on Fraser Island in Queensland, was, in part, affected by an order under the National Security General Regulations made pursuant to the National Security Act 1939 (Cth), of a like kind to that referred to in the case in this proceeding. The land concerned has a particular significance in terms of Australia's history in military operations in World War Two, in the sense that the particular part of Fraser Island taken pursuant to that order was used for a commando school at which members of a clandestine unit, which went under the cover name of the Services Reconnaissance Department, were trained. 7 The nature of the particular orders sought by the Butchulla People are more particularly described in the interlocutory application, filed on their behalf, and they are these: 1. That Shereene Currie, Annette Broome, Joan Brown, Lurline Lillian Burke, Kate Doolan, Peter Martin, Sandra Page, Cepha Roma and Jan Williams, the Applicant in native title proceeding, QUD 287 of 2009 Shereene Currie & Ors on behalf of the Butchulla People #2 (Butchulla Applicant), be granted leave to intervene in these proceedings upon the following conditions: a. the leave to intervene is limited to participation in the hearing of the questions reserved for the consideration of the Full Court, by order 1 made by Logan J on 9 August 2013; b. that in accordance with order 7 made by Logan J on 9 August 2013, the Butchulla Applicant file its outline of submissions with respect to Questions 1, 2 and 3 not later than 20 business days before the hearing of the special case; c. that the Butchulla Applicant confine its submissions to Questions 1, 2 and 3 of the special case, on the basis of the agreed facts set out in the special case stated filed on 12 August 2013; d. that the outline of submissions filed by the Butchulla Applicant not exceed 10 pages in length for each question, including any annexures; e. that the time allowed for the Butchulla Applicant to make oral submissions at the hearing of the special case be limited to 30 minutes. f. that the Butchulla Applicant comply with order 12 made by Logan J on 9 August 2013; and g. that any judicially determined result (as opposed to any consent orders) in these proceedings, in relation to the questions reserved for the consideration of the Full Court, is to apply in the QUD 287 of 2009 Butchulla People #2 proceeding, with the intent that the Butchulla Applicant will have a right to seek leave to appeal from any adverse finding. 8 The Bar-Barrum People signified that they support the application made by the Butchulla People, providing that the hearing of the application would not unduly affect the hearing of the case stated. By "unduly", the submission was that the hearing of the case stated should not be deferred or adjourned as a result of the granting of any right of intervention to the Butchulla People. 9 The Commonwealth adopted a similar position but went further in relation to the question of whether all of the orders sought by the Butchulla People on their interlocutory application either could or should be made, with particular reference to the orders sought in paragraph 1(g). 10 The State for its part opposed the granting of leave to intervene. In so doing, the State also raised an issue as to whether the orders sought in paragraph 1(g) either could or should be made. 11 The basis for the application in terms of authority under the rules was the subject of some debate, with that debate, perhaps, being fuelled by a decision of the Full Court to which I was a party, Hua Wang Bank Berhad v Commissioner of Taxation (2013) 296 ALR 479 (Hua Wang Bank). 12 The occasion for the debate was whether the intervention application was one to which r 36.32 applied or rather whether it was one to which r 9.12 applied. In Hua Wang Bank, at paragraphs 47 and 48, each of these rules is discussed, with the Court observing at paragraph 48 that: The criteria set out in rule 9.12(2) as relevant to a grant of leave to intervene in a proceeding are not materially different to those which rule 36.32(2) makes relevant to whether to grant leave to intervene in an appeal. The context in which those criteria fall for application is, of course, different. That statement with respect, is apt so far as the criteria are concerned. But as was pointed out by counsel for the Butchulla People in submissions, there is an imperative word "must" used in r 36.32, which does not appear in r 9.12(2) where the word "may" is used. So while the criteria are the same, there is that difference. An explanation may well be derived from the context in which each rule comes to apply. A party seeking to intervene in a proceeding where appellate jurisdiction is being exercised will, necessarily, be one who has not already sought and been granted leave to intervene in the proceeding when it was in the original jurisdiction. Perhaps that explains why there is the more definite statement in r 36.32. In many, if not most, cases, however, that difference in language is likely, in terms of result, to be a distinction without a difference in my view. That is because an applicant for intervention who satisfied the court that his, her or its contribution would be useful and different and would not unreasonably interfere with the ability of the party to conduct the proceedings is, irrespective of which rule applies, very likely to be granted leave to intervene. That lends an element of artificiality to the identification of which is the governing rule but the point having been raised, it does require determination. 13 The power to state a case appears in s 25 of the Federal Court of Australia Act, which is directed to the exercise of the court's appellate jurisdiction. It would, in those circumstances, be anomalous if the stating of a case pursuant to s 25(6) were characterised as one not in the exercise of appellate jurisdiction. The effect of that is that the governing rule, in my view, is r 36.32. However, in this particular case, the outcome is in no way affected by the correctness of that view. In other words, even if r 9.12 were the governing rule, the result, in my view, would be no different. 14 The considerations which are pertinent on an intervention application of this kind are, as r 36.32 discloses, like r 9.12, ultimately open-ended. Nonetheless, two particular considerations are always relevant. They are, as to 36.32(2)2(a) and (b) discloses that: (a) the intervener's contribution will be useful and different from the contribution of the parties to the appeal; (b) that the intervention would not unreasonably interfere with the ability of the parties to conduct the appeal as they wish. 15 The first of these requires, in this case, an identification of how the intervention of the Butchulla people would not just be useful but also different from the contribution of the parties to the appeal. As to that, the positions of the existing parties, including in that regard the Commonwealth, are these. 16 The Bar-Barrum people contend that the military order made was not valid because it violated the constitutional prohibition against an acquisition of property otherwise than in just terms. They further contend that in the event that the order was valid that it did not have the effect of extinguishing the native title rights and interests which they claim. 17 The Commonwealth, unsurprisingly, supports the validity of the military order. Its further contention, assuming that the order is valid, is that the order did not extinguish the native title rights and interests claimed. 18 The State's position is that the order was valid but that it did extinguish the native title rights and interests claimed. 19 The position which the Butchulla people would seek to advance is one and the same as that which the Bar-Barrum people would seek to advance. In other words, the Butchulla people also, if granted leave to intervene, would contend that the order concerned was invalid but, if valid, did not have the effect of extinguishing the native title rights and interests claimed by the Bar-Barrum people. It was no part of the Butchulla people's submissions, nor reasonably could it have been, that the Bar-Barrum people would be other than competently represented on the hearing of the case stated before the Full Court. Rather what was advanced was that the issues raised were novel, difficult and systemic in their application. "Systemic" in the sense that the determination of the questions posed would, as a matter of legal principle, have like application to the same questions in the Butchulla people's native title claim. That may, of course, leave differences at a factual level beyond the facts akin to those in the case stated in the present proceeding as to particular uses to which the land was put pursuant to the military order and whether or not there were subtleties in this and in the nature of the native title rights and interests claimed, such that, assuming the orders were validly made, there was nonetheless some different result on the facts so far as extinguishment was concerned. 20 In Hua Wang Bank, the Full Court, at paragraph 51, drew attention to guidance as to matters of general principle in relation to intervention applications which had been offered by the High Court in Roadshow Films Pty Ltd v iiNet Limited (2011) 284 ALR 222 (Roadshow Films). As to that case and another earlier decided by a Full Court of this Court, Sharman Networks Limited v Universal Music Australia Pty Ltd (2006) 155 FCR 291, it is sufficient if I reproduce the passages quoted by the Full Court from each of those cases in Hua Wang Bank at paragraphs 51 and 52: [51] Guidance as to matters of general principle in relation to an application of the kind made by the Independent State of Samoa was provided in Roadshow Films Pty Ltd v iiNet Ltd (2011) 284 ALR 222; [2011] HCA 54 at [2]-[4] and [6] (the iiNet case) where the High Court stated: [2] In determining whether to allow a non-party intervention the following considerations, reflected in the observations of Brennan CJ in Levy v Victoria (1997) 189 CLR 579 at 600-605; 146 ALR 248 at 256-9; [1997] HCA 31, are relevant. A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the court or their effect upon future litigation. [3] Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the court should have to assist it to reach a correct determination, the court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs between all parties as it sees fit to impose. [4] The grant of leave for a person to be heard as an amicus curiae is not dependent upon the same conditions in relation to legal interest as the grant of leave to intervene. The court will need to be satisfied, however, that it will be significantly assisted by the submissions of the amicus and that any costs to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the expected assistance. … [6] In considering whether any applicant should have leave to intervene in order to make submissions or to make submissions as amicus curiae, it is necessary to consider not only whether some legal interests of the applicant may be indirectly affected but also, and in this case critically, whether the applicant will make submissions which the court should have to assist it to reach a correct determination. Ordinarily then, in cases like the present where the parties are large organisations represented by experienced lawyers, applications for leave to intervene or to make submissions as amicus curiae should seldom be necessary or appropriate and if such applications are made it would ordinarily be expected that the applicant will identify with some particularity what it is that the applicant seeks to add to the arguments that the parties will advance. [52] In Sharman Networks Ltd v Universal Music Australia Pty Ltd (2006) 155 FCR 291; [2006] FCAFC 178 at [7]-[9] (Sharman Networks), a case which arose when the court's practice was governed by the Federal Court Rules 1979 (the former Rules), the Full Court made the following observations in relation to the terms amicus curiae and intervener and the distinction between them: [7] There can be a degree of confusion in the use of the terms "amicus curiae" and "intervener". At the extremes, the distinction is clear enough. Where a court invites a legal practitioner to assist it by ensuring that its attention is drawn to all relevant law and arguments, the legal practitioner is an amicus curiae, not an intervener. On the other hand, where a person's interests may be affected by the outcome, the person, if permitted by the court, becomes an "intervener", not an amicus curiae. [8] There is, however, a large intermediate area. A non-lawyer entity may seek to become involved in litigation. It may be an official body, such as the Australian Competition and Consumer Commission or the Australian Securities and Investments Commission (we leave to one side any special statutory power to intervene or to apply for leave to intervene). It may be an organisation that puts itself forward as acting in the public interest. The Amici so characterised themselves. Yet a further class of case is illustrated by an industry, trade or professional association, whose members' interests may be affected, directly or indirectly, by the outcome of the litigation. [9] While it is easy to see the first of these three intermediate categories as comprising entities acting in the public interest, entities in the second and third classes may be acting, to various degrees, both in the public interest and in private interests. At the time when Sharman Networks was decided, the equivalent in the former Rules of r 6.32 was O 52, r 14AA. The latter was cast in like terms to r 36.32. That means that those observations remain pertinent, as does the following, further observation by the Full Court in that case (at [12]): [12] It would be inconsistent with the obvious intention of the rules for a non-lawyer entity to be free to seek leave to be heard as amicus curiae outside the comprehensive framework now provided by O 6, r 17 and O 52, r 14AA. 21 Regard to the passage quoted from Roadshow Films discloses that the High Court cited with approval observations made by Brennan CJ in Levy v Victoria (1997) 189 CLR 579 at pages 600 to 605 (Levy v Victoria). It is instructive to have regard to a particular part of his Honour's observations in Levy v Victoria, given the submission made on behalf of the Butchulla people that their interests were directly affected, or would be directly affected, by the outcome in respect of the case stated in this proceeding. In Levy v Victoria at page 601, Brennan CJ stated: It is of the nature of that jurisdiction, in other words the jurisdiction of the High Court, that it should be exercised in accordance with the rules of natural justice. Accordingly, its exercise should not affect the legal interests of persons who have not had an opportunity to be heard. Therefore a non-party whose interests would be affected directly by a decision in the proceeding - that is, one who would be bound by the decision albeit not a party - must be entitled to intervene to protect the interest liable to be affected. This, indeed, is the explanation of many of the cases in which intervention has been allowed in probate and admiralty cases and in other cases where an intervener and a party are privies in estate or interest. [Footnotes omitted]. 22 When one explores the authorities cited by his Honour in relation to probate and admiralty cases in which intervention has been allowed one finds the following. 23 Osborne v Smith (1960) 105 CLR 153 was a probate case. That case highlights a principle of probate practice derived from the ecclesiastical courts that a person having an interest in the subject matter of a suit might, by intervening, be made a party. Against that background, Kitto J at pages 158 to 159 stated: It was both proper and necessary in the second suit to treat as binding upon the appellant the findings as to knowledge and approval which had been made in the first suit. She, it is true, was not a party to the first suit; but there is a well-established principle of probate practice, which grew up in the ecclesiastical courts, that any person having an interest may have himself made a party by intervening, and that if he, knowing what was passing, does not intervene but is "content to stand by and let his battle be fought out by somebody else in the same interest", he is bound by the result and is not to be allowed to reopen the case. 24 So far as the admiralty authority cited by Brennan CJ is concerned, regard to that authority, The "Dowthorpe" (1843) 2 W Rob 73; 166 ER 682, discloses that in that case Dr Lushington held that assignees of a bankrupt ship owner had standing to appear for the benefit of the bankrupt estate so as to content the appropriation of proceeds in the admiralty case against the assignees of the freight seeking to make the ship alone liable in the first instance. And those assignees would have been bound by the outcome in the admiralty case had they not sought to intervene. 25 It a direct interest of this nature which Brennan CJ had in mind in the passage to which I have referred from in Levy v Victoria. So much is made clear by the authorities to which his Honour makes reference, to two of which I have referred. In the sense in which direct interest is used by Brennan CJ in Levy v Victoria, and as approved by later authority, the Butchulla People have no direct interest. Rather, what they have is an interest of the kind also described by Brennan CJ in Levy v Victoria later at page 601: But the legal interests of a person may be affected in more indirect ways than by being bound by a decision. They may be affected by operation of precedent - especially a precedent of this Court - or by the doctrine of stare decisis. Apart from the obsolete exception contained in s 74 of the Constitution, an exercise of the jurisdiction conferred on this Court is not subject to appeal nor to review by any other court. As this Court's appellate jurisdiction extends to appeals, whether directly or indirectly, from all Australian courts, a decision by this Court in any case determines the law to be applied by those courts in cases that are not distinguishable. A declaration of a legal principle or rule by this Court will govern proceedings that are pending or threatened in any other Australian court to which an applicant to intervene is or may become a party. 26 In those cases where the High Court either refuses to grant special leave or, if an exceptional, alternative course is taken, refuses to grant an order nisi for a constitutional writ, a judgment of a Full Court of this Court will have a similar finality, insofar as questions of legal principle are concerned, in relation to an exercise of original jurisdiction by the court. In that sense, and that sense alone, the Butchulla People have an indirect interest in the outcome of the case stated in this proceeding. In the original jurisdiction, the answer given the Full Court, if there is no further appeal to the High Court, will bind a judge exercising original jurisdiction in the Butchulla case. The Butchulla People themselves would not be bound by the answers and would be free, if they chose, to make a formal submission that the Full Court's decision was wrong and then to seek to challenge the application of that decision in the original jurisdiction, by way of an appeal to the Full Court in the ordinary way. 27 That the interest of the Butchulla People is but indirect is but one reason why the application should be refused. 28 There is a more telling one even than that. That is, and without any pejorative content in the use of the term, it is my firm view that their contribution in respect of the hearing on the case stated would not be "useful". That is because, as will be apparent from the recitation of the contentions of those who appeared today, all of the possible permutations in respect of the questions will be the subject of submissions by competently-represented parties or existing interveners. 29 The stance of the Northern Territory is not yet known. It was notified of today's application but chose not to appear. That the Northern Territory has decided to intervene supplies yet another reason why the intervention application must, in my view, be refused. That is because the Northern Territory's intervention is as of right. That intervention will add a fourth party making submissions to a heavy case listed for two days on the basis of an estimate that that was necessary so as to accommodate submissions of three parties - the Bar Barrum People, the State and the Commonwealth. With the exercise of a necessary discipline by counsel for those parties and the Northern Territory it will, in my view, still be possible adequately to hear the case with the added burden and benefit of submissions from the Northern Territory. 30 It is put on behalf of the Butchulla People that their oral submissions could be confined to but 30 minutes. That is a 30 minutes which is already precious and, in any event, is but the tip of an iceberg in terms of the effect that it would have on the case if leave to intervene were granted. Its written submissions will have to be assimilated by each of those who are already to be heard in the case, as will its oral submissions. To allow intervention would very likely see the hearing of the case stated elongated beyond the two days set down in my view. If not, there would be a necessary compromising of the assistance the Court is entitled to expect and the existing parties and interveners are entitled to expect to provide to the court. 31 Each of these reasons tells in favour of an exercise of discretion against the granting of leave to intervene. 32 That makes it unnecessary to consider whether or not, in any event, an order in terms of paragraph 1(g) either could or should be made. One immediate difficulty in respect of the seeking of that order today was that the application was made only in the Bar Barrum case, not additionally in Butchulla's own proceeding on notice to all of the parties to that proceeding. 33 The reference to an obligation to afford natural justice made by Brennan CJ in Levy v Victoria in relation to the jurisdiction exercised by the High Court of Australia, applies with just as much force to an exercise of jurisdiction conferred on this Court. For that reason, it would never have been possible today to have granted the orders sought in paragraph 1(g). The existence of the application would have to have been notified to respondent parties beyond the State and, as the Commonwealth is also an intervener in the Butchulla case, the Commonwealth. 34 I propose to say nothing further in relation to the Court's powers to make such an order. It is a desirable discipline to decide only that which needs to be decided. 35 For these reasons, the application is dismissed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Congoo on behalf of the Bar-Barrum People #4 v State of Queensland

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