Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs

Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs - [2012] FCA 185 - FCA 2012 case summary — Zoe

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Background 3 The issue of Dr Gondarra's affidavit has arisen obliquely as a result of an application for joinder and in the course of pre-trial case management. It is necessary to set out the procedural history of the case in order to understand how the issue arose. 4 On 10 August 2011, the applicant filed an originating application for judicial review, with the Minister as the sole respondent. Shortly after the filing of the originating application, the NLC, the Land Trust, Swiss Aluminium Limited ("Swiss Aluminium") and Gove Aluminium Limited ("Gove") applied to be joined as respondents. The hearing of the joinder applications was set down for 10 October 2011. The NLC, the Land Trust, Swiss Aluminium and Gove filed affidavits in support of their applications in September 2011. The NLC and the Land Trust filed submissions in early October 2011. 5 On 7 October 2011, the applicant also filed submissions and Dr Gondarra's affidavit. In this affidavit, Mr Gondarra deposed to: his place and year of birth, education, and ordination in 1976 as a Minister of the Methodist Church of Australasia. Dr Gondarra also identified himself as a Yolngu man, after noting that "[t]he Aboriginal people of North East Arnhem Land, including the Gove Peninsula, are known as "Yolngu": see [2]-[3]. his knowledge of Madayin (or Yolngu) law, which, according to Dr Gondarra, "governs alliances between the clans in Arnhem Land including the Gove Peninsula, between the Dhurili Nation people and others": see [4]-[8]. his status as the only person "authorised to speak for the whole of the Dhurili Nation peoples and for all of its land": see [9]. the Dhurili's Nation's spiritual connection and responsibility for the land. According to Dr Gondarra, the lands in the Gove Peninsula to which Dhurili Nation peoples belong "are joined by the sacred Dumbalbal track, which shows where Wuyal, our spiritual ancestor and law keeper, travelled across Arnhem land". The creation story about Wuyal's travels "records the creation of the Dhurili Nation and its connection with its land"; and "[t]his is why the red mud pond [within the Lease and the Agreement] is important to the Dhurili Nation": see [10]-[14]. mining arrangements on the Gove Peninsula, and negotiations with the Rirratjinu and Gumatj clans (who, according to Dr Gondarra, are not the principal owners of the red mud pond land) about entering into agreements over the red mud pond land: see [16]-[18]. the absence of consultation with the Dhurili Nation peoples, who are the primary owners of the red mud pond land, concerning the Lease and the Agreement. Dr Gondarra stated that he "would need to participate in any decision of the Dhurili Nation to consent to the new agreements", and he has not been consulted and has not consented: see [20]-[21]. the "disturbance" that would be occasioned by the mining and red mud disposal on the Dhurili Nation's sacred land: see [24]. his actions to protect the Dhurili Nation's interests. According to Dr Gondarra, "[t]he Minister promised to consult the Dhurili Nation before making her decision about the new agreements but she did not meet with us": see [26]-[29]. 6 As a result of their joinder applications, the NLC, the Land Trust, Swiss Aluminium and Gove were joined as respondents. Three other respondents were joined at a later date. They were Galarrwuy Yunupingu, Djalu Gurruwiwi and Bakamumu Marika. 7 Relevantly to this interlocutory application, an issue arose during the hearing of the joinder applications on 7 October 2011 as to whether the applicant limited his challenge to the Minister's decisions, or whether the applicant also proposed to call into question the conduct of the NLC. As a consequence, counsel for the applicant raised the possibility of amending the applicant's originating application: see Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2011] FCA 1206 at [14]-[15]. 8 On 20 October 2011, the NLC and the Land Trust wrote to the applicant's solicitors to ask, relevantly for present purposes, whether the applicant: (1) proposed to amend the originating application; and (2) proposed to withdraw Dr Gondarra's affidavit. See "RL-1" to the affidavit of Ron M D Levy affirmed on 1 February 2012. 9 On 31 October 2011, the applicant's solicitors advised that the applicant intended to file an amended originating application and an outline of the submissions, but that the applicant did not intend to withdraw his affidavit, which was said to be relevant to standing. The applicant's solicitors invited the NLC to outline its objections to the affidavit in writing for the applicant's consideration. See "RL-1" to the affidavit of Ron M D Levy affirmed on 1 February 2012. 10 On 15 November 2011, the applicant filed an amended originating application. In particular, the applicant no longer claimed standing to challenge the Minister's decisions on the basis that members of the Dhurili Nation were the traditional owners but pressed only the more limited basis that members of the Dhurili Nation were "Aboriginals interested" in the relevant land and an "Aboriginal community or group that may be affected" by the consent and approval within the meaning of ss 23(3) and 19(5)(b) (respectively) of the ALRA. Other amendments were made to the statement of the review grounds. 11 Also on 15 November 2011, the applicant filed a "Short Outline of the Applicant's Submissions", which, according to its author, was "simply to clarify how the Applicant is running his 'case' and, in particular, to confirm that the Applicant does not in this proceeding question whether the NLC complied with its statutory duties under the ALRA in relation to the grant by the Land Trust of the Lease and the entry by the NLC and the Land Trust into the Agreement. … Rather, the focus is on the Minister's exercise of her supervisory jurisdiction under the ALRA". 12 On 18 November 2011, the Minister's solicitor wrote to the solicitors for Dr Gondarra, observing that the amended originating application did not identify the nature of the applicant's interest in the relevant land and that: The nature of your client's interest in the relevant land is relevant to the claims in the amended application regarding the obligations of natural justice allegedly owed by the Minister to your client. Accordingly, can you please provide us with particulars clarifying the nature of your client's interest in the relevant land. Having regard to your answer to what interest is being asserted, can you indicate whether you propose to rely on the affidavit of Mr Gondarra of 4 October 2011 and/or what other parts of your evidence you rely upon to establish the interest you propose to assert? See "RL-1" to the affidavit of Ron M D Levy affirmed on 1 February 2012. 13 On 22 November 2011, the NLC and the Land Trust informed the applicant's solicitors by letter that the NLC and the Land Trust "do not contend that the Applicant does not have standing … to make the present application". The letter continued: To avoid doubt, that concession does not imply acceptance of any of the assertions made in representations to the Minister (whether concerning the Dhurili Nation or otherwise), nor acceptance of any of the grounds alleged in the Amended Application or the premises for those grounds. In particular, it does not imply any concession as to the existence or nature of any interest in the relevant land of a kind that would attract an obligation to afford procedural fairness to the Applicant as asserted on the Amended Application. In this letter, the NLC and the Land Trust reiterated their request that the applicant withdraw his affidavit of 4 October 2011, adding that: If that affidavit is not withdrawn, we anticipate that this may open up a significant and wide ranging factual and evidentiary contest … See "RL-1" to the affidavit of Ron M D Levy affirmed on 1 February 2012. 14 The dispute over Dr Gondarra's affidavit continued through December 2011 and January 2012. On 5 December 2011, the applicant's solicitors replied that Dr Gondarra's affidavit was relevant to establishing that he was an "Aboriginal interested" in the relevant land (see ALRA, s 23(3)), and part of an "Aboriginal Community or group that may be affected" by the proposed grant of lease (see s 19(5)(b)). See "RL-1" to the affidavit of Ron M D Levy affirmed on 1 February 2012. The applicant's solicitors also noted that "[t]he large part of the Applicant's affidavit … states what he says is his relationship to the relevant land". Further, whilst conceding paragraph 20 was irrelevant, the applicant's solicitors also said that "[o]ther parts of the affidavit are relevant by way of background to the proceeding, and to the question of standing". 15 On 9 December 2011, the NLC and the Land Trust stated that, in order to avoid a lengthy contested trial on the facts, they proposed the adoption of a short agreed statement of facts in the following terms: (i) The Applicant is a member of the Yolngu clan known as Golumala. (ii) Other Aboriginals interested in the Gove Area, and Aboriginal communities or groups that may be affected by the grant of the Residue Disposal Lease and the making of the RTA Gove Traditional Owners Agreement include the Yolngu clan known as the Golumala. The NLC and the Land Trust proposed that "[o]n adoption of such a statement of facts, the Applicant's affidavit would be withdrawn". See "RL-1" to the affidavit of Ron M D Levy affirmed on 1 February 2012. 16 The NLC emphasised that this did not involve acceptance of any allegation by the applicant that the NLC had not discharged its obligations under ss 19(5) and 23(3) of the ALRA. The NLC indicated that, if the applicant proposed to read his affidavit, the NLC and the Land Trust would be required to put on extensive answering evidence, "including evidence about consultations undertaken by the NLC". 17 On 14 December 2011, the applicant's solicitors responded that Dr Gondarra's affidavit was necessary to demonstrate the applicant's connection to the relevant land, as it was that connection that gave rise to the relevant interest and the action in court. The applicant's solicitors also said that they would resist any application for costs in relation to any answering evidence that the NLC sought to adduce, as "we do not see how that material is in any way relevant to whether the Minister properly exercised her supervisory jurisdiction under the ALRA". See "RL-1" to the affidavit of Ron M D Levy affirmed on 1 February 2012. 18 The NLC and the Land Trust determined not to let the issue await the trial. Instead, at a directions hearing on 3 February 2012, they sought an order in advance of trial excluding Dr Gondarra's affidavit from the evidence. They relied on the affidavit of Ron M D Levy affirmed on 1 February 2012 in support of their application. As appears from the foregoing, Mr Levy's affidavit annexed the correspondence relating to the attempts by the NLC and the Land Trust to have the affidavit withdrawn. 19 As at 3 February 2012, the applicant had not received sufficient notice of this advance ruling application by NLC and the Land Trust. As a consequence, orders were made on 3 February 2012 permitting the applicant to file short submissions in opposition. The NLC and the Land Trust were also given an opportunity to file submissions in reply. 20 In response to the submissions of the NLC and the Land Trust filed in court on 3 February 2012, the applicant filed written submissions dated 10 February 2012. The NLC and the Land Trust subsequently filed a reply on 14 February 2012, to which the applicant (with leave) filed a brief note on 21 February 2012.

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Consideration 25 In the ordinary case, the Court deals with objections to evidence, even evidence by way of affidavit filed before trial, at or shortly before the hearing. In some cases, however, trial preparation may be assisted by an evidentiary ruling in advance of the trial. The enactment of s 192A of the Evidence Act gave effect to a recommendation by the Australian Law Reform Commission, the New South Wales Law Reform Commission and the Victorian Law Reform Commission to permit a court, if it thought fit, to give an advance ruling on an evidentiary issue: see ALRC Report 102, at pp 34, 579-582; and Explanatory Memorandum, Evidence Amendment Bill 2008 (Cth), at p 39, [240]. Section 192A is intended to empower the court to make such a ruling in the interests of efficient trial management: see Southern Cross Airports v Commissioner of State Revenue [2011] NSWSC 349 at [14]. In substance, the NLC and the Land Trust relied on the interest in efficient trial management as justifying an advance ruling as to the admissibility of Dr Gondarra's affidavit. 26 The NLC and the Land Trust argued that, in this case, an advance ruling against the admissibility of Dr Gondarra's affidavit would promote trial efficiency, since such a ruling would diminish the possibility of unnecessary delay and expenditure. They contended that Dr Gondarra's affidavit was not relevant to any issue arising on the applicant's originating application, as amended, and would therefore be inadmissible at trial. They sought to have the affidavit ruled inadmissible in advance of the trial because, so they said, they wanted to avoid the need "to put on (extensive) answering affidavit evidence". At the directions hearing on 3 February 2012, senior counsel for the NLC and the Land Trust stated: [I]t was foreshadowed to the court that the amended application would truly seek to confine the case to the Minister's actions based on the material before the Minister. With that shift, we became at a loss to understand why the affidavit could be pressed. It opens up a huge, huge Pandora's box, a mini native title trial, totally peculiar, not suited to this proceeding, and revisits the points that my then learned junior, Dr Donaghue, addressed to the court about what role my clients would play. We would like to take a passive role, if I can put it in those terms, and fall behind the Minister, but we can't if these sorts of allegations are made. See Transcript of Directions Hearing, 3 March 2012, at p 9, [15]. 27 The applicant contended, however, that Dr Gondarra's affidavit was not irrelevant, as the NLC and Land Trust submitted. The applicant maintained that the affidavit deposed to facts that constitute the reasons why he, on behalf of the Dhurili Nation, claimed that: a. he has an interest sufficient to pursue these proceedings on behalf of the Dhurili Nation; b. there is an historical belonging of the Dhurili Nation to the land; c. the Dhurili Nation have the primary spiritual connection and responsibility for the land; d. their participation was required when the terms of the lease and the agreement were being negotiated; e. the Dhurili Nation were not made privy to the terms of the lease or the agreement; and f. the consent of the Dhurili Nation was required and that was not sought or given. Indeed, the applicant argued that "provided the matters deposed to by [him] [were] shown by common sense and logic to be connected to one or more of the matters in issue in the proceedings, the facts deposed to in the affidavit ordinarily will be relevant and ought not be excluded …". See the applicant's response to the submissions of the Northern Land Council in relation to the admissibility of the applicant's affidavit sworn 4 October 2011. 28 For the reasons stated below, I consider that both sides overstated their cases. The actual position is more nuanced and less straightforward than the competing arguments acknowledged. 29 Whether or not an advance ruling should be made with respect to Dr Gondarra's affidavit depends on a number of considerations. The first is whether its relevance can be determined at this stage of the proceeding. From one perspective, a number of generally accepted statements of principle would appear, at least superficially, to favour a positive answer. It is only upon closer examination that doubts as to the propriety of an advance ruling on relevance arise. The second is whether the question of relevance should, in any event, be determined in advance of the trial, having regard to the risk of error and consequent unfairness, as well as the desirability of avoiding unnecessary costs and delay. 30 It is often said that as a general rule the material that was not before the decision-maker is not admissible in a judicial review proceeding. This is because an application for judicial review is not a rehearing of the merits of the matter. Thus, the nature of judicial review is said to support a general prohibition in a judicial review proceeding against the receipt of new evidence (i.e., evidence that the administrative decision-maker did not have) because the consideration of the merits is at an end. As the authorities regularly point out, judicial review is solely concerned with scrutinising the decision-making process. 31 Although the basis of the statement that, as a general rule, material not before the decision-maker is inadmissible, is sound enough, the statement itself is misleading. There is in fact no general prohibition. Evidence that the decision-maker did not have can be admissible in a judicial review proceeding. Whether or not such evidence is admissible will depend on the applicant's grounds of review. The authorities make this proposition very clear: see, for example, Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536 ("Attorney-General (NT) v Minister for Aboriginal Affairs") at 539-540 per Lockhart J, cited with approval in McCormack v Commissioner of Taxation (2001) 114 FCR 574 at 586 [37]-[40] per Sackville J. 32 New evidence (in the sense already mentioned) will be admissible in a judicial review proceeding where that evidence is relevant to establishing a ground of review challenging the decision-making process. Before any concluded view can be reached as to the admissibility of Dr Gondarra's affidavit, it is thus necessary to examine the grounds of review in his amended originating application to determine whether the affidavit is relevant to one or other of them. This process is not as straightforward as may initially appear. 33 It is unnecessary to consider all the applicant's review grounds to demonstrate that the outcome of two review grounds and the question of the relevance of the affidavit may depend on the proper construction of the governing statute - as to which it would be premature to express an opinion. Thus, the fact that the issue of standing can be removed from the list of disputed issues (as the respondents have indicated) does not necessarily render Dr Gondarra's affidavit irrelevant to other issues in dispute in the proceeding. 34 One may take, by way of example, the applicant's third ground. By this ground, the applicant raised an issue as to whether the making of the Minister's decision to give her approval to the Agreement was an improper exercise of power under s 27(4) of ALRA because the Minister failed to take into account the questions of whether the NLC was satisfied that it had consulted with any Aboriginal community or group that may be affected by the proposed Lease and Agreement, and that those communities and groups had had an adequate opportunity to express their views to the NLC. To address this issue, the Court would be required to construe the governing statute in order to determine whether it was open to the applicant to establish that he was part of a relevant Aboriginal community or group that the Minister had left out of account when considering whether the NLC had the requisite satisfaction. That is, depending on the proper construction of the relevant statutory provisions, the applicant's third ground may give rise to a question of mixed fact and law of the kind to which Lockhart J referred in Attorney-General (NT) v Minister for Aboriginal Affairs at 540. The Court cannot make an advance ruling as to the admissibility of the affidavit with regard to this ground, because it cannot undertake the process of statutory construction without first having a hearing. 35 Further, Dr Gondarra's affidavit may be relevant to the applicant's fourth ground, because the applicant's interest in the land may well be relevant to the content of procedural fairness. (In his originating application, the applicant used the expression "natural justice", rather than "procedural fairness" - although the latter expression appears in his submissions. For present purposes, nothing turns on this. For convenience, hereafter I use the expression "procedural fairness".) The authorities establish that evidence of this kind, though not before the decision-maker, may be relevant and admissible, if necessary to make good a claim of denial of procedural fairness: see Percerep v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 483 at 495 per Weinberg J. 36 The applicant's fourth ground asserted in substance a breach of procedural fairness in connection with the making of the Minister's decisions by reason of the Minister's failure to: (a) provide the authorised representatives of the Dhurili Nation a fair and reasonable opportunity to be heard despite creating a legitimate expectation that they would be afforded such an opportunity; (b) disclose to the authorised representatives of the Dhurili Nation the substance of the material that was adverse to their interests; (c) provide a copy of the proposed Lease and Agreement to the authorised representatives of the Dhurili Nation; and (d) properly consider materials provided to her by the authorised representatives of the Dhurili Nation. See the applicant's Amended Originating Application for Judicial Review at p 3 [4]. 37 This ground too will depend on the proper construction of the relevant provisions of the governing statute, as the applicant's submissions indicated, as well as on certain matters of fact. 38 The applicant submitted that the matters deposed to in his affidavit were relevant to the content of procedural fairness (or natural justice), i.e., the nature of the Minister's obligation to afford the applicant, and members of the Dhurili Nation, a fair hearing. In particular, the applicant submitted that the ALRA recognises that there is, amongst Aboriginal persons, an acknowledgement that some of them have a stronger or weaker traditional connection to land and that some have a greater responsibility for certain parts of the land than others. The applicant maintained that, on the basis of the facts to which Dr Gondarra deposed, the Dhurili Nation fell within one or more of the categories of traditional Aboriginal owners and/or an Aboriginal community and/or interested persons. The applicant's argument was that, on this account, the Dhurili Nation (or the applicant on their behalf) was required to be consulted and, if the Dhurili Nation were relevantly considered to be traditional Aboriginal owners, their consent was required. Dr Gondarra deposed that he was the person to be consulted on behalf of the Dhurili Nation as a people who had a primary spiritual connection and a responsibility for the land and whose consent under Madayin law was required. According to the applicant, as set out in his affidavit, the consent of the Dhurili Nation was not sought and obtained as required. 39 Whether or not the applicant's submissions (as set out above) are ultimately accepted, it seems clear enough that what is held to be the content of procedural fairness will depend on matters of statutory interpretation and the facts that are found to be relevant as a consequence of that accepted interpretation. It may very well be that the content of procedural fairness in this case is relevantly affected by the kinds of facts to which Dr Gondarra has deposed, including the nature of the Dhurili Nation's connection with the land. 40 In its written reply, the NLC and the Land Trust submitted that the applicant "attempts to re-visit … the representations he made to the Minister" and that the NLC addressed these contentions as an earlier time. This is not to the point. Dr Gondarra's affidavit may be relevant to issues raised by his grounds of review, notwithstanding that the affidavit also covers material that he put before the Minister. The fact that the Minister received the material and nonetheless made the challenged decisions does not establish that the decisions are immune from judicial review. In this case, whether or not the decision-maker's state of satisfaction conditions the statutory power that the Minister exercised so as to preclude a challenge of the kind the applicant seeks to make depends on the proper construction of the relevant provisions of the ALRA. 41 The foregoing discussion shows that it is not possible to rule in advance on the question whether Dr Gondarra's affidavit is relevant to an issue raised by a review ground in his amended originating application. Much will depend on the way the case unfolds at trial, including the construction that the Court is persuaded should be given the relevant provisions of the ALRA. For this reason alone, it would not be appropriate to make the advance ruling sought by the NLC and the Land Trust. As the applicant noted in written submissions, it remains open to the respondents to file a list of objections before the trial in order that the applicant might consider them and, in default of resolution, the Court rule on those objections. Such a ruling can be made in the usual way in the course of the hearing or, if necessary, after receiving the benefit of detailed submissions on the substantive matters arising on the originating application. 42 Further, given the brevity of Dr Gondarra's single affidavit, there seems little justification for the NLC and the Land Trust to file voluminous answering affidavits, of they kind they have threatened. Such a response might well be considered uncalled for and disproportionate to the end in view - all the more so if they continue to adhere to the view that Dr Gondarra's affidavit (and therefore any answering material) is irrelevant to the grounds of review. I would not accept that Dr Gondarra's affidavit necessarily "opens up a huge, huge Pandora's box", as senior counsel for the NLC and the Land Trust contended. This may well be an instance in which the NLC and the Land Trust should be particularly mindful of s 37N of the Federal Court of Australia Act 1976 (Cth). 43 Equally, of course, the applicant, though his legal advisers, should be made aware that, contrary to a suggestion in the applicant's solicitors' letter of 14 December 2011, it is open to the respondents to file an affidavit or affidavits in answer to that of Dr Gondarra if such evidence would be relevant to their response; and that Dr Gondarra could incur liability for the respondents' costs in so doing in certain circumstances, especially if his judicial review application were ultimately to fail.

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