Gondarra v Minister for Families, Housing, Community Services and Indigenous... [2014] FCA 16 | Case summary

Gondarra v Minister for Families, Housing, Community Services and Indigenous... [2014] FCA 16 | Case summary | Zoe

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REASONS FOR JUDGMENT 1 On 6 March 2013, the applicant in this proceeding, Dr Djiniyini Gondarra, filed an interlocutory application seeking specific performance of an alleged settlement agreement between himself and the eighth respondent, Bakamumu Marika ("settlement agreement"). There was also a claim for damages for the repudiation of the settlement agreement. On 25 October 2013, I made orders dismissing the application, without prejudice to Dr Gondarra reinstituting his application for specific performance in a separate proceeding. These are my reasons for that interlocutory judgment. 2 Dr Gondarra is the applicant in the substantive proceeding VID 864 of 2011. Relevantly, in the substantive proceeding, he seeks judicial review pursuant to s 5 of Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") of two decisions made by the Minister for Families, Housing, Community Services and Indigenous Affairs ("the Minister") under ss 19(4A) and 27(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"). By the challenged decisions, the Minister consented to the grant by the Arnhem Land Aboriginal Land Trust ("the Land Trust") of a lease over land in the Gove Peninsula ("the Lease") and approved the Northern Land Council ("the NLC") and the Land Trust entering into a contract known as the "RTA Gove Traditional Owners Agreement" ("the Agreement"). The Lease provides for the current means by which a mining operation on the Gove Peninsula disposes of waste from a bauxite processing plant. 3 Mr Marika is the eighth respondent to the judicial review application in the substantive proceeding and a party to the Agreement on behalf of the Rirratjingu clan. Dr Gondarra claimed to represent the Dhurili Nation (comprising the Golumala and other Aboriginal clans). In the substantive proceeding, it was an agreed fact that Dr Gondarra was a member of the Golumala clan. Neither Dr Gondarra's nor Mr Marika's capacity to speak for their clans (or the Dhurili Nation) in relation to the claimed settlement agreement was agreed for the purposes of the interlocutory application.

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THE INTERLOCUTORY APPLICATION 4 The background to the interlocutory application can be briefly stated as follows. 5 Dr Gondarra claimed that, on 1 February 2013, he and Mr Marika, on behalf of Rirratjingu and Dhurili Nation respectively, entered into the settlement agreement. Brief circumstances of the agreement are captured in an affidavit and its annexures sworn by Ms Suzanne Tinkler, Special Counsel employed by Maddocks (Dr Gondarra's solicitors), on 4 March 2013 in support of this interlocutory application. Ms Tinkler deposed that: I am informed by the Applicant and believe that on 1 February 2013, the Dhurili Nation (Mala) entered into a settlement agreement with the Rirratjingu clan, which is represented by the Eighth Respondent in these proceedings, the terms of which settlement were set out in minutes signed and witnessed by independent witnesses … I am further informed by the Applicant and believe that on 20 February 2013, he sent to the Eighth Respondent a letter dated 19 February 2013 which was to be signed by the Eighth Respondent and the Applicant and addressed to both the lawyers for the Applicant and the Respondent … At 6:09 pm on 28 February 2013, I received an email from Tracey Patterson, General Manager of the Bunuwal Group attaching a letter from the Eighth Respondent to the Applicant dated the same date … 6 Ms Tinkler's affidavit annexed the three documents to which she referred, namely: the "Minutes of the Meeting between Rirratjingu and Dhurili Mala", which was dated 1 February 2013 and signed by the two minute-takers, for Rirratjingu and Dhurili respectively ("the Minutes"); the letter dated 19 February 2013 sent by Maddocks, for Dr Gondarra to Clayton Utz, for Mr Marika, for signing by them ("Dr Gondarra's 19 February 2013 Letter"); and a letter dated 28 February 2013 and marked "Without Prejudice", sent by Mr Marika, in his capacity as chairman of the Rirratjingu Aboriginal Corporation, to Dr Gondarra, giving notice that he would not sign the 19 February 2013 Letter ("Mr Marika's 28 February 2013 Letter"). 7 The Minutes record a meeting with 12 attendees (including Mr Marika and Dr Gondarra) leading to the following resolutions: 1. Rirratjingu and Dhurili commit to standing together recognising the existing alliance represented by the Bunumbal. To demonstrate this Rirratjingu intends to withdraw the evidence from the current court case and join with Dhurili in the case against the Minister and they offer to cover the legal expenses of Mr Gondarra to complete the case. 2. Dhurili and Rirratjingu will work together to break away from the Northern [L]and Council, to form an independent Land Council. 3. Further royalties, rent and town lease payments around the Gove Peninsula shall be divided in equal portions between Dhurili and Rirratjingu. 4. Rirratjingu and Dhurili authorise and direct their lawyers to communicate openly with each other and their respective clients in accordance with the previous resolutions. (It may be observed that these resolutions presumed the validity of the Lease and the Agreement and extended beyond the issues raised in the substantive proceeding. This is important and is discussed further below.) 8 In Dr Gondarra's 19 February 2013 Letter, Dr Gondarra apparently anticipated that he and Mr Marika would together request that their respective lawyers "record our reconciliation in a binding agreement". Omitting formal parts, the letter read as follows: On the 1st February 2013 we met with other representatives of the Murranju, Marakula, Datiwuy and Golumala and Rirratjingu clans and achieve reconciliation between them. We affirm the agreements reached at that meeting. It is important for those clans to give public expression to the peace that now exists between us in ways that give effect to our agreements according to both our Madayin Law and also Australian Law. That is why we speak strongly and with one voice in this letter about Five Things, according to our Madayin Law. 1. The responsibility carried by the Rirratjingu in relation to the Land and represented by the sacred "bunumbal' (clap sticks) arises from an old covenant between the Rirratjingu and the clans of the Dhurili Ringitj Alliance at the time (Bunumbal Covenant). 2. The Rirratjingu have entered into a new covenant with the Dhurili Ringitj Alliance in which they have now been accepted as part of the Dhurili Ringitj Alliance along with the Marrangu, Marakula, Datiwuy and Golumala clans (Ringitj Alliance Convenient). 3. Because of the Ringitj Alliance Covenant the Rirrajingu now have Madayin Law in the Land. 4. The Rirratjingu and all of the Dhurili Ringitj Alliance clans know that the proper consultation process according to Madayin Law for Decisions about the mining and aluminium refinery operations at the Land and about the Lease and Agreement requires the authority of the Ngarra of the Dhurili Ringitj Alliance. 5. With the authority of the Ngarra of the Dhurili Ringitj Alliance the Bunumbal Covenant was renewed and affirmed and the Ringitj Alliance Covenant was made; and other things were agreed on the 1st February 2013, all of which support the peace between us. We do not want Australian law to interfere with these Five Things. We say to our lawyers please: (i) Record our reconciliation in a binding agreement recognised by Australia law; and (ii) Achieves a distribution of 50% of all Rirratjingu financial entitlements under the Agreement and Lease to a trust established for the collective benefit of the Marrangu, Marakula, Datiwuy and Golumala clans; and (iii) Provides for recognition of the authority of the Ngarra of the Dhurili Ringitj Alliance in all future consultations contemplated in the Agreement. …………………………………… ………………………………… Rev Dr Djiniyini Gondarra Bakamumu Marika Date: Date: 9 Mr Marika's 28 February 2013 Letter advised Dr Gondarra: Re: Agreement dated 19 February 2013 This letter is to notify you that I will not be signing the Agreement sent through dated 19 February 2013. I have been advised by my lawyers that there is no need to sign the Agreement as the issue regarding land ownership is no longer part of your legal case 'Gondarra vs Minister'. I am also advised this matter cannot be re-introduced into this case. Please feel free to write to me at anytime. I look forward to viewing your correspondence. 10 At the hearing, Dr Gondarra asserted that these documents (and presumably other evidence not before the Court) showed Mr Marika had: …entered into a binding agreement with [Dr Gondarra] (in accordance with traditional law and custom) whereby [Dr Gondarra], amongst other things, agreed to not pursue his claim of being a traditional owner in the proceeding (VID 864 of 2011). After [Dr Gondarra] had performed that part of the agreement, the Respondent denied the existence of the agreement and refused to perform any of its terms. (Emphasis added)

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Other relevant background 11 The interlocutory application was introduced at the commencement of the hearing of the substantive matter. On 4 March 2013, before opening his case at the hearing, senior counsel for Dr Gondarra, Mr Bennett QC, sought leave, at short notice, to serve the interlocutory application on Mr Marika's solicitors. From this point, the application's trajectory became rather complex. 12 Mr Marika's attendance had earlier been excused from the substantive proceeding, following his indication that he did not wish to participate actively in the proceeding. At the commencement of the hearing on 4 March 2013, however, Mr Shaw, counsel for Mr Marika, was in attendance (having been alerted to the interlocutory application) and highlighted a number of potential difficulties with Dr Gondarra's interlocutory application, including that a claim of some factual complexity was being brought to the Court on an interlocutory basis. 13 On 4 March 2013, having heard the parties, the Court made orders permitting the interlocutory application to be filed (and served) and providing for its mention some days later, on 8 March 2013. Mr Bennett QC also sought (and was given) "leave to service short notice of a fresh proceeding seeking the same relief on the same evidence as the motion, but in the form of a substantive proceeding". Dr Gondarra did not, however, act on this leave to institute a substantive application. 14 At the mention on 8 March 2013, there was some further discussion about whether or not the relief sought by interlocutory application was better sought in a substantive application in a separate proceeding. Mindful of their obligation under Part 2 of the Civil Dispute Resolution Act 2011 (Cth) to take genuine steps to resolve their dispute before instituting a proceeding, the parties sought a further adjournment, which was granted. The interlocutory application was subsequently listed for directions on 31 May 2013. In the intervening period, Dr Gondarra, Mr Marika and their legal representatives met in Darwin in an unsuccessful attempt to resolve their dispute. 15 Prior to the 31 May directions hearing, Mr Marika's solicitors filed submissions seeking the dismissal of Dr Gondarra's interlocutory application on the basis that it was "not appropriate for summary determination in these proceedings and that … [the] claims … should be made in separate proceedings". Dr Gondarra filed written submissions on 7 June and 22 August 2013 supporting his choice to proceed by way of interlocutory application. Further submissions were filed by Mr Marika on 25 June 2013 and, jointly, by the NLC and the Land Trust, on 18 June 2013. The first, second and third respondents chose not to make submissions. The sixth and seventh respondents also did not participate, having earlier filed submitting appearances. 16 Dr Gondarra maintained that he should also have an opportunity to make oral submissions to the Court on the question whether the interlocutory application should be dismissed. The matter was listed for hearing on 25 October 2013. Both Dr Gondarra and Mr Marika were represented by counsel at the hearing. The NLC and the Land Trust were excused from appearing and relied on their written submissions.

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Dr Gondarra's submissions 17 Dr Gondarra submitted that proceeding by way of interlocutory application provided the most expeditious and otherwise appropriate method for the application to proceed. Dr Gondarra urged that the Court should "exercise its discretion to hear and determine the application in the proceeding consistent with the duty imposed by section 22 of the Federal Court of Australia Act 1976 (Cth)", to avoid an unnecessary multiplicity of proceedings. Commencing the application in a separate proceeding would, so Dr Gondarra maintained, involve "three obvious vices", namely: the unnecessary allocation of additional judicial resources; the incurring of additional costs by the parties; and significant additional delay. In oral submissions, senior counsel for Dr Gondarra, Mr Tokley SC, emphasised that these considerations accorded with the "overarching purpose" of civil practice and procedure as defined by s 37M, especially s 37M(1), of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"). 18 Mr Tokley SC argued that the introduction of s 37M combined with s 22 of the Federal Court Act had generated a new statutory and regulatory context for the Court's exercise of procedural discretion in cases such as this one. This shift in "emphasis", so he said, meant that Mr Marika's reference to a body of authority pre-dating s 37M giving primacy to the "interests of justice" in seeking a separate proceeding was out-dated or misplaced. 19 Mr Tokley SC further submitted that any unfairness or other procedural disadvantage to Mr Marika occasioned by the application's interlocutory nature could be readily ameliorated. This would be done, he proposed, by importing any necessary procedural steps into the interlocutory process. Thus, for example, Mr Tokley proposed that if the interlocutory form of the application had been agreed to by Mr Marika: … we would have been under an obligation to accept a suggestion that we provide a statement of claim in these proceedings and we would be under an obligation to give discovery if so ordered in these proceedings. But just the response that, well, we need …to commence separate proceedings seemed to me to cut across both the duty that was imposed [on the parties' lawyers by s 37N of the Federal Court Act] and I ask rhetorically, to what end? Why does it necessarily follow that issuing separate proceedings will result in a just determination of the matter when it can be done in these proceedings? (Emphasis added) To order otherwise, would be, he submitted, to allow a "triumph of form over substance", given that the meaningful elements of trial preparation could be applied to the interlocutory hearing particularly when the "three vices" of a separate proceeding outlined above were considered. Nevertheless, as Mr Tokley SC told the Court in his opening submissions: "the end point of our application is the summary determination, but we can get there along a [different] path". 20 In sum, it was said on Dr Gondarra's behalf that Mr Marika's position that the claim should be made in a separate proceeding "cut across" both the purposes of ss 22 and 37M. Instead, senior counsel for Dr Gondarra contended that "the statutory duties, responsibilities imposed upon the Court and the parties coupled with the Court's undoubted power to do justice in one set of proceedings means that one should keep the one set of proceedings [sic] together". 21 Referring to Ellwood v Darling Downs Investments Pty Ltd (1987) 14 FCR 580 ("Ellwood v Darling Downs (first instance)") (appeal dismissed: 80 ALR 203; see below); We Two Pty Ltd v Shorrock (No 2) (2005) 220 ALR 749 ("We Two v Shorrock"); and AG Cowley Holdings Pty Ltd & Anor v Central City Ltd & Anor (2010) 183 FCR 103, Dr Gondarra submitted that there was ample authority for the proposition that the enforcement of a settlement agreement can be achieved in the same proceeding, particularly where the enforcement application and the main action arise out of the same substratum of fact. Senior counsel for Dr Gondarra properly accepted, however, that the particular application in this case was attended by "additional considerations involved over and above the ordinary deed of settlement type approach the authorities suggest that one could commence … within the one set of proceedings". 22 Finally, Dr Gondarra submitted, in response to concerns raised by the NLC and Land Trust submissions, that the Court had jurisdiction to hear and determine the application in either its original jurisdiction (under s 39B(1A)(c) of the Judiciary Act 1903 (Cth)), or its accrued or associated jurisdiction. Citing Macteldir v Dimosvski (2005) 226 ALR 773 ("Macteldir (2005)") at 790 [62], he contended that the justiciable controversy was "broader than the aspect of the matter that is encompassed by the ADJR proceeding". While Dr Gondarra accepted that "[t]he present application relate[d] to the enforcement of terms of settlement that seek to comply with traditional law and custom", he submitted that it also concerned the rights and interests of the parties arising under the Land Rights Act, including the equitable distribution of royalties under Part VI of the Land Rights Act or the Agreement, over which this Court has original jurisdiction. For these reasons too, Dr Gondarra submitted that the interlocutory application could be determined in the Court's associated jurisdiction conferred on it by s 32(1) of the Federal Court Act. Alternatively, the interlocutory application "plainly ar[ose] out of a common substratum of facts with the ADJR claim" such that it attracted the Court's accrued jurisdiction once reference was made to "what the parties have done, the relationships between them and the law which attached rights or liabilities to their conduct and relationships" (citing Fencott v Muller (1983) 152 CLR 570 at 608).

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Mr Marika's submissions 23 Mr Marika argued that the interlocutory application was not appropriate for summary determination and that, if claims of the kind made in the interlocutory application were to be made against him, they should be made in separate proceedings. Referring to Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VLR 555 ("Roberts") at 564, Macteldir (2005) at 790 [62], We Two v Shorrock at 753-754 [17]-[21], Seachange Management Pty Ltd v Pital Business Pty Ltd (2009) 23 VR 396 at 408 [40] ("Seachange Management") and AG Cowley Holdings Pty Ltd v Central City Pty Ltd (2010) 183 FCR 102 at 111 [47], Mr Marika submitted that this was "clearly a case" where the Court's discretion to hear Dr Gondarra's interlocutory application within the original proceeding should not be exercised. 24 Many of these authorities pre-dated the introduction of s 37M into the Federal Court Act in 2010. With this in mind, at the outset of her submissions at the hearing, Ms Brownhill, who appeared for Mr Marika, contended that s 37M did not "throw out all prior jurisprudence", as she understood Dr Gondarra to have submitted. There was, so Ms Brownhill argued, no basis for the proposition that s 37M required "any different application of the principles identified in [the] jurisprudence" stemming from Roberts (at 564) and allied authorities (such as Seachange Management at 408 [40] discussing the Victorian analog of s 22 (see Macteldir Pty Ltd v Dimovski (2003) 132 FCR 492 ("Mactedlir (2003)") at 502 [38])) and Darling Downs Investments Pty Ltd v Ellwood (1988) 80 ALR 203 at 216-217 ("Darling Downs v Ellwood (Full Court)"). Rather, so Ms Brownhill submitted, these authorities established that the Court's discretion was not to be exercised as Dr Gondarra sought unless the Court was "clearly satisfied that justice can be done" and that "the interests of justice" were critical in deciding whether or not Dr Gondarra's interlocutory application should be permitted to proceed by way of summary application in the substantive proceeding. 25 Further, Mr Marika argued that the interlocutory application and the circumstances of the claimed settlement agreement were "a world away from the agreements to compromise claims in proceedings which have been addressed in the authorities". Ms Brownhill pointed out that: Most often, such agreements are embodied in a signed, written document which is expressly directed to a settlement or compromise of the proceedings or sometimes in correspondence similarly expressed, but exchanged between the parties' solicitors. 26 By contrast, Dr Gondarra's interlocutory application raised, so Ms Brownhill submitted, "the most substantial of questions in this context, namely [whether there was] a settlement agreement at all." Counsel for Mr Marika emphasised that the Minutes did not "on their face or in their terms, purport to be an agreement compromising a claim in the proceedings"; and that the resolutions (as recorded in the Minutes), ambiguously at best, contained undertakings only as to what the Rirratjingu clan would do, but did not state the terms of any compromise by the Dhurili Nation clans or Dr Gondarra personally. Thus, it was said that: [T]he question isn't simply whether the terms of an agreement, which is clearly embodied in a document, bind the parties. The question is whether there was any oral agreement between the parties to compromise the applicant's claim in some way, which the applicant says is evidenced by the three documents and which we dispute. Counsel continued: If your Honour reads these minutes with the other two documents relied upon, there are serious doubts as to any intention of the parties to create binding legal relations at the meeting on 1 February, especially if your Honour takes into account the letter of 19 February, which the eighth respondent declined to sign in any event, but on the bottom of the first page… it records that there was a desire for the lawyers to record the reconciliation in a binding agreement recognised by Australian Law. 27 Ms Brownhill submitted that indeterminacy over the terms of the alleged contract, along with the presumably oral (or partly oral) nature of the claimed settlement agreement, then raised other questions, including: (a) whether the Minutes accurately reflected and sufficiently recorded what was discussed at the meeting; (b) whether Mr Marika had authority from the Rirratjingu clan to make the promise to give away a portion of the clan's rights to royalties (see resolution 3 above at [7]); (c) if the agreement was made pursuant to Yolngu Law, whether such an agreement could be made according to it, and whether the described traditional ceremony had in fact taken place and to what effect in the Law. Point (c) was further complicated, so counsel submitted, by the need to ascertain for the purposes of the ceremony and the claimed settlement agreement on whose land the resolutions had occurred before it could be accepted that it was properly made under Yolngu Law. These considerations, with others, made very real the possibility that the hearing would involve: … among other things, evidence to be given by each of the persons who attended at the meeting on 1 February as to what was discussed and what was resolved … [T]here would be extensive cross-examination of the 8th respondent and the applicant and other attendees about those matters. It would require the evidence of other Rirratjingu people as well as the 8th respondent and the applicant in relation to the processes of decision making and authority to make those decisions under their traditional laws and customs and also evidence about the traditional ownership for the lands affected by [the Agreement]. And in relation to those two issues one would expect there would also be evidence not just from the Rirratjingu people but also the Dhurili clan people. And one might also expect that there would be anthropological evidence going to those matters ... There may, in the context of the [NLC's] longstanding recognition of the Rirratjingu's clan as being the traditional owners of the lands affected, be a need for discovery of the very many documents over many years in which that attitude and position has been taken. 28 Counsel for Mr Marika further submitted that the filing of expert anthropological reports and on country evidence about traditional law and custom were not outside the realm of possibility. The hearing would, Ms Brownhill submitted, require pleadings, discovery and a full hearing on the merits of approximately two or three weeks, not the three days estimated by Dr Gondarra. Counsel submitted that all these features indicated that the matter was not suitable for summary determination, especially when one considered: the extent to which the enforcement would involve extraneous matters to the main claim; the substantial questions to be determined as a precursor to enforcement; the desirability of pleadings and discovery and substantial cross-examination; and the uncertainty as to whether the case had sufficient merit to "clearly satisfy" the Court that "justice could be done" on an unpleaded notice of motion: citing Macteldir (2005) at 790 [62] and Seachange at 408 [40]. In the particular circumstances of the claimed settlement agreement, Ms Brownhill submitted that the Court could not be "clearly satisfied" that justice could be done under the summary procedure in the face of the significant need for a full hearing and trial preparation to meet fairly the true character of the claim. 29 Further, Mr Marika submitted that the asserted settlement agreement gave rise to particular extraneous elements and had potential consequences for persons outside the ADJR claim, which made enforcement inappropriate within the substantive proceeding. These elements and consequences included that the new application appeared to relate to an assignment of royalties and land use entitlements. These rights were, so Mr Marika contended, held not just by him but by all Rirratjingu traditional owners. Thus, it would be necessary for other members of the Rirratjingu to be alerted to the claim, with the very real prospect that other proper respondents may emerge and/or that representative orders may need to be made. 30 Counsel for Mr Marika also submitted that the prevailing context of the ADJR claim pointed "very strongly" "against the exercise of the discretion [under s 22]". This was because certain terms of the claimed settlement agreement, such as the conferral of 50% of Rirritjingu's entitlements to royalties under the Agreement and Lease on the Dhurili Nation, were "diametrically opposed to the relief which is sought in the proceedings". Counsel submitted that, whereas in the ADJR claim, Dr Gondarra claimed that the Lease and Agreement were void and of no effect, in the interlocutory application, he sought to enforce, among other things, a contractual right to royalties payable under the Lease. Additionally, so Mr Marika emphasised, the entitlement to the royalties claimed in the interlocutory application was relief to which Dr Gondarra would never be entitled in the determination of the ADJR claim. 31 Fundamentally, counsel for Mr Marika rejected Dr Gondarra's "form over substance" argument. In closing, Ms Brownhill stated that: [T]he summary procedure which is sought to be invoked by the applicant can't be converted into something more substantive by the kinds of orders that are proposed in the draft orders to which my friend took you. To say that it could is contrary to the authorities which all recognise that the court must be satisfied that justice can be done upon the summary procedure. In my submission it's a question of the appropriateness of the summary process to the resolution of the issues raised by the alleged settlement agreement. … 32 Mr Marika further submitted that the "three obvious vices" to which Dr Gondarra referred were not vices of a separate proceeding at all. If they were indeed realised, it was submitted that these costs and delays would occur whether the matter remained within the main proceeding or proceeded by way of a fresh proceeding. 33 Despite an earlier concession of sorts regarding jurisdiction, Mr Marika ultimately adopted the NLC and the Land Trust submissions regarding the jurisdiction of the Court.

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The joint NLC/Land Trust submissions 34 Together, the NLC and the Land Trust submitted (in writing) that the interlocutory application should be dismissed. Their reasons for seeking the dismissal were, essentially, much the same as those of Mr Marika. They too submitted that the interests of justice were weighted against the application remaining within the substantive ADJR proceeding. This was because: 1. The claims made in the interlocutory application related to an extraordinary settlement and provoked contested questions of fact that would ordinarily best be decided by separate proceedings, citing We Two v Shorrock at 753 [19]. One such contested question of fact was, for example, said to be whether Mr Marika could, as a matter of Aboriginal tradition, bind the Rirratjingu. 2. The subject and terms of the claimed settlement agreement included claims over matters extraneous to the proceeding making it unsuitable for summary determination. On this point, the NLC and the Land Trust, citing Roberts at 562-3, submitted that: If, as the minutes at ST-1 and letter at ST-2 suggest, the contract (or "new covenant" between Rirratjingu and Dhurili) resolves an intra-mural dispute about who are the traditional Aboriginal owners of Aboriginal law, that would involve a contract dealing with property and rights to which no question falls for decision in the judicial review proceeding, and a contract providing for things beyond the range of remedies the Court would grant in the proceeding. 3. The resolution of the intra-mural dispute or, alternatively, a determination of Dr Gondarra's rights to royalties was not be capable of resolution under the ADJR application. Thus, it was unsuitable for summary determination in an ADJR proceeding both because the Court could not make an order at an interlocutory stage that it could not make at a final hearing (citing Toomelah Boggabilla Local Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 69 FCR 306 at 309) and because any determination of the interlocutory dispute by way of an exercise of the power in s 23 of the Federal Court Act would be an inappropriate exercise of the jurisdiction conferred on the Court by either the ADJR Act or the Land Rights Act (citing Jackson v Sterling Industries Ltd (1987) 162 CLR 612 ("Jackson v Sterling") at 622). 35 Further, like Mr Marika, the NLC and the Land Trust submissions also expressed a concern that the claims made in the interlocutory application might have a potential to affect "by a side wind, the workings of the [Agreement]." In their written submissions, they explained: A direction [to a Traditional Owner Recipient Entity] may cease to apply if any Aboriginal persons other than Gumatj, Rirratjingu or Galpu are able to establish by way of judicial determination, or otherwise to the satisfaction of the Land Council in the exercise of its statutory duties and functions (under s 35), that they are traditional Aboriginal owners of the Gove areas (clause 5.11(b)). As a result, they urged that on any analysis "the risk of a determination of that kind being made in a claim to enforce an alleged settlement contract by interlocutory application within a judicial review proceeding concerned with actions of the Minister, and not with the exercise of any power by the [NLC], should be avoided". 36 The NLC and the Land Trust submissions also queried, without stating a firm position, whether the Court possessed jurisdiction to determine the interlocutory application. It was not "readily apparent", they submitted, that the purported settlement could be determined in the Court's original jurisdiction pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth). Doubt was cast over whether the claim for specific performance of the claimed settlement agreement could engage the Court's original jurisdiction (or at all) if it was construed as an agreement made pursuant to Yolngu Law without direct connection to obligations or entitlements conferred by Commonwealth law (for example, by ss 5 or 27 of the Land Rights Act read with s 39B(1A)(c)). These doubts also attended arguments reliant on the Court's associated jurisdiction pursuant to s 32 of the Federal Court Act. Further, they argued that the Court could not exercise the power conferred by s 23 of the Federal Court Act in the Court's accrued jurisdiction because there was "no shared substratum of fact… between the Minister's decision and the [claimed settlement agreement]". In this connection reference was made to previous statements by this Court, such as Fox J's in Pearce v Button (1986) 8 FCR 408 at 415, that, in certain circumstances, the addition of a common law claim to proceedings under the ADJR Act could involve a "misuse" of the jurisdiction conferred on the Court by the ADJR Act.

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LEGISLATIve provisions 37 The legislative provisions that particularly bore on the question for determination, included ss 22, 37M and 37N of the Federal Court Act. 38 Section 22 of the Federal Court Act provides: Determination of matter completely and finally The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided. 39 Section 37M of the Federal Court Act prescribes the "overarching purpose of civil practice and procedure provisions", which are defined to include the Federal Court Rules and any other provision of an Act relating to the Court's civil procedure. Section 37M provides: The overarching purpose of civil practice and procedure provisions (1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. (2) Without limiting the generality of subsection (1), the overarching purpose includes the following objectives: (a) the just determination of all proceedings before the Court; (b) the efficient use of the judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall caseload; (d) the disposal of all proceedings in a timely manner; (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute. (3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose. (4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings: (a) the Rules of Court made under this Act; (b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court. (Emphasis added) 40 Corresponding obligations are imposed on parties and their legal practitioners by s 37N, as follows: Parties to act consistently with the overarching purpose (1) The parties to a civil proceeding before the Court must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose. (2) A party's lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party's behalf: (a) take account of the duty imposed on the party by subsection (1); and (b) assist the party to comply with the duty. (3) The Court or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of: (a) the likely duration of the proceeding or part of the proceeding; and (b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including: (i) the costs that the lawyer will charge to the party; and (ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding. (4) In exercising the discretion to award costs in a civil proceeding, the Court or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2). (5) If the Court or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from his or her client.

[23]

A relevant shift in "emphasis"? 41 I deal first with a preliminary issue that arose at the hearing. This is the question whether the introduction of ss 37M, 37N and 37P into the Federal Court Act recalibrated the emphasis that this Court had previously placed (and been required to place) on the "interests of justice" in exercising the power in s 22 to entertain a separate application for relief within an existing proceeding. These provisions commenced on 1 January 2010 pursuant to the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). 42 The introduction of these provisions into the Federal Court Act has not, as senior counsel for Dr Gondarra argued, diminished the relevance or importance of the interests of justice in deciding whether it was appropriate or not for the existence and effect of the claimed settlement agreement to be determined in an interlocutory application in the substantive ADJR proceeding. Whereas counsel effectively painted these amendments to the Federal Court Act as generating a "shift in emphasis" away from the justice of the case, it is clear from the provisions themselves that any intended emphasis on the need for the "quick, inexpensive and efficient" resolution of disputes in ss 37M(1)(b) and 37M(2)(b)-(e) remains, as ever, subject to the paramount importance of the "just resolution of disputes" (see s 37M(1)) and the need to ensure "the just determination of all proceedings before the Court" (see s 37M(2)). Like s 37M(1) and (2), the terms of s 22 itself also confers on the Court the power to grant the remedies sought by Dr Gondarra (only) "as the Court thinks just". With this in mind, it is clear that the justice of the case continues to inform what the Court thinks is "appropriate" for the purposes of s 23 as well. 43 Therefore, Smith J's decision in Roberts and subsequent cases, such as We Two v Shorrock, remain instructive. In We Two v Shorrock, Finkelstein J (largely citing Roberts) rejected the proposition that an application to enforce a compromise could never be brought by motion in the action itself. In the course of doing so, however, his Honour said (at 753 [18]-[19]): It has always been the case that a court has jurisdiction on motion in the action to enforce terms of settlement. The practice dates back to the Chancery Court. In Daniell's Chancery Practice, 8th ed, Stevens and Sons, London, 1914, vol 1, p 646, the practice was described in this way: When an action is compromised by agreement out of Court, it was formally necessary to institute an action for specific performance of the agreement in the event of any party refusing to carry it out. But since the Judicature Act such a compromise may be converted into an order of the Court upon a motion by any party interested and enforced like a judgment. But a consent order, embodying a new agreement between the parties beyond the scope of the action, can only be enforced in a fresh suit, which is also the proper method of determining the validity of the compromise, if disputed. Things have progressed since then. The modern practice is discussed by the Full Court of the Supreme Court of Victoria in [Roberts]. I will not burden these reasons with extensive quotations from the well known judgment of Smith J. I will content myself by citing one passage (564) where the judge summarised the current position: (i) The Court will now enforce the agreement of compromise upon motion in the action whenever the circumstances are such that it would have been enforced in a corresponding manner in the old Court of Chancery. (ii) In addition the agreement may be so enforced notwithstanding the fact that it involves matters extraneous to the action, and notwithstanding that there is a substantial question raised as to the terms or validity or enforceability of the agreement, provided that the Court is clearly satisfied that justice can be done under the summary procedure. The adoption of a summary procedure is apt in the current circumstances. The validity of the terms of settlement is not called into question. No contested question of fact need be decided. All that is required is to determine what the parties meant by the settlement agreement. From start to finish this is a question of construction. (Emphases added; citations omitted) 44 As his Honour observed and other authorities reiterate, in such a case as this, the Court must be "clearly satisfied that justice can be done" in order to enforce a settlement in an interlocutory application such as the present.

[25]

Delay 46 When pressed on what particular difficulties would confront Dr Gondarra within the scope of s 37M if he were to make a fresh application in a separate proceeding, Mr Tokley SC submitted that the need to make a new application would occasion delay in itself. I presume this was because it would increase the time to be spent scheduling a full timetable for the exchange of evidence and submissions and, perhaps, some delay in awaiting a hearing date for the application. In addition, there may have been delay contemplated by the need to bring any potential new judge up to speed on the history of the substantive proceeding and perhaps engage in other preliminary procedural steps that that a new judge may have preferred. 47 In the circumstances of this matter, however, the time required to schedule fairly the pre-trial procedures for the parties would not be avoided by preserving the interlocutory nature of the application. Whether or not the application continued in the substantive ADJR proceeding, as Dr Gondarra's counsel proposed, significant timetabling and scheduling would have to have been arranged between the parties and the Court and suitable hearing dates would need to have been found. Further, for reasons I outline below, any potential delay that may have arisen by the docketing of the fresh proceeding to a different judge was illusory. 48 In conjunction with his argument about future delay, senior counsel for Mr Gondarra also submitted that the interlocutory application should proceed in its present form because Mr Marika had already unduly delayed negotiation of a way for the interlocutory application to proceed without disadvantage to either party. In support of this argument, Mr Tokley SC relied on an affidavit sworn by Ms Suzanne Tinkler on 24 October 2013. Annexed to this affidavit was a series of correspondence between the parties (and the Court). I was unable to discern, however, how the course of past correspondence between the parties could bear in any significant way on whether there would be unjustified delay if Dr Gondarra were required to reinstitute his claim as a separate proceeding. It was not the case that the parties would, for example, lose the benefit of some earlier hard-won agreement on the facts or as to how the pre-trial procedure should be scheduled. No such agreement existed. 49 The argument that Mr Marika had delayed negotiations on agreeing on a suitable timetable with Dr Gondarra also disregarded the fact that the parties spent some time after the hearing of the substantive ADJR application seeking to resolve the matter of the claimed settlement agreement informally and elided the fact that the Court, though my associate, wrote by email to the parties on 30 May 2013 (in response to the issues raised by the eighth respondent in the submissions that he had then recently provided) effectively directing that they cease negotiating a timetable and, instead, focus on submissions as to whether or not the interlocutory application should be dismissed. The notion that Mr Marika "could have raised" any prejudice occasioned by the interlocutory form of the application at the directions hearing on 31 May 2012, as Mr Tokley SC submitted, must also be rejected, logically for the same reasons I have just outlined and, factually because the 31 May directions hearing was adjourned - not on Mr Marika's request - but because the Court could not proceed with the hearing on that day.

[27]

Importation of substantive procedure in piece meal fashion bound to result in costs and delay 52 It follows for the reasons just stated that I rejected the proposition that a new proceeding would result in the undue allocation of judicial resources. A new judge was never, for the purposes of this application, a likely prospect. The expenditure of judicial resources in case-managing or hearing the application itself would not necessarily be any greater for the application being recommenced in a fresh proceeding. Indeed, it was likely that the piece-meal importation of trial procedures into an interlocutory application as proposed by Dr Gondarra (with detailed factual questions and significant areas of dispute) would itself run a substantial risk of generating undue delay and cost. One can only imagine the outstanding steps that would need to be determined as suitable for importation, or that would need to be agreed to and, in lieu of agreement, further disputed by the parties in the process of determining what was required to satisfactorily preserve "the interests of justice" in this case. 53 I rejected the proposition, as stated by Mr Tokley SC for Dr Gondarra, that "that the proposed orders that we sent through were intended to ensure that both parties would be prepared for a trial". The best and most efficient way for the parties to be prepared for a trial of the anticipated breadth and complexity anywhere near that outlined by Mr Marika was to have, in fact, a trial with all of the pre-existing procedural infrastructure, established by the Federal Court Rules 2011 (Cth) and the Federal Court Act. This would be, plainly enough, a trial by separate proceeding. To propose a process whereby the disputing parties with apparently conflicting views of the complexity of the matter (reference need only be made to Dr Gondarra's view that a 3 day hearing would suffice, whilst Mr Marika considered 2 to 3 weeks more realistic) and the need for certain procedural steps to be taken (for example, Mr Tokley SC had originally maintained that discovery was unnecessary and then only with "suitable timelines", whilst Mr Marika had an entirely different view) could build a hybrid system appeared to me to be littered with the opportunities for the parties to expend funds on considering whether certain steps were necessary and, if so, on what terms and with what timelines these steps should be taken. Judicial resources would no doubt also be expended settling these preliminary skirmishes. At least some of these battles would be avoided if a separate proceeding were commenced on the expectation that the parties would be engaged in a full trial. 54 Accordingly, even on these bases, the considerations outlined in s 37M cautioned strongly against retaining the interlocutory application within the ADJR claim.

[28]

Administration of justice generally 55 I would add too that the prospect of this interlocutory application co-existing within the main proceeding raised significant issues, which could be generally described as issues for the proper administration of justice. They raised both cost and expediency issues, as well as issues for the interests of justice more broadly (see below). I considered seriously the argument raised by the respondents that, irrespective of what view I took of the dispute's complexity and the need for procedural fairness to the parties, the very premise of Dr Gondarra's interlocutory application was inappropriate to entertain as part of the ADJR proceeding because the alleged resolutions contained in the Minutes presumed the validity of the Lease and the Agreement. As outlined above, these were the very documents in respect of which Dr Gondarra sought declarations of invalidity in the substantive ADJR proceeding. 56 Further, a separate proceeding would, so it appeared to me, be the correct place to ventilate a dispute which (among other things), via contract, sought to establish a new and different regime for the dispersal of royalties under the Land Rights Act and purported to quell other, larger and long-running disputes, partly governed by Yolngu Law, between the Rirritjingu and the Dhurili. I accepted that it was, at the very least, possible that the scope of persons who could be affected by any enforcement of the alleged contractual rights extended beyond the parties to the present proceeding. These facets of the interlocutory application revealed that, while some elements of the purported settlement agreement existed in the same universe as the ADJR dispute, significant other elements were very much outside the ambit of the main proceeding as it had been constituted in early March 2013: see Phillips v Walsh (1990) 20 NSWLR 206 ("Phillips v Walsh") at 210 and the authorities cited therein; Roberts at 564; Ellwood v Darling Downs (first instance) at 589; and Reid v Interarch Australia Pty Ltd (ACN 069 490 795) [2000] FCA 1328. For this reason too, a separate proceeding was, so it seemed to me, the correct forum for the dispute between the parties and potentially others beyond the scope of the substantive ADJR proceeding to be resolved. 57 While the power in s 22 is to be construed liberally (see McLeish v Faure (1979) 25 ALR 403 at 413-414 and generally Oshlack v Richmond River Council (1998) 193 CLR 72 at 81 [21]) multiple proceedings must, in certain circumstances be preferred. This was such a case. The purpose of s 22 is, as Gibbs J described in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 489 (citing In the Goods of Tharp (1878) 3 PD 76 at 81) "that whenever a subject of controversy arises in an action which can conveniently be determined between the parties to the action, the court should, if possible, determine it so as to prevent further and needless litigation". In this case, the interlocutory application would have been unlikely to be conveniently determined within the main proceeding; and its continuation would not have prevented needless litigation: cf in a different context, Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Ltd [2002] FCA 401.

[29]

Justice of the case 58 I turn now to the question whether the justice of the case required a separate proceeding. As described above, Mr Marika, the NLC and the Land Trust submitted that the circumstances of this application made it unsuitable for "summary determination" and therefore unsuitable to proceed in its interlocutory form. 59 The interlocutory application was, in my view, patently unsuitable for summary determination. There were likely to be significant questions of fact which needed to be determined before even the terms of the claimed settlement agreement could be ascertained, let alone the subject of the remedies sought by Dr Gondarra. In this connection I need only refer to the dissonance between the Minutes and Dr Gondarra's 19 February 2013 Letter, the ambiguous language of these documents and the lack of any formal statement of the terms of compromise. 60 The dispute underlying the interlocutory application was not, for example, analogous to that in We Two v Shorrock, which, was "from start to finish … a question of construction" (see above at [43]). While in early submissions, Dr Gondarra may have appeared to downplay the complexity of the case, claiming among other things that "the Applicant's case is simple to understand" and "formal discovery would be unnecessary", by the conclusion of the hearing, Mr Tokley's tack was rather different. Instead, he argued for a "hybrid proposal", in which the interlocutory application became a platform for pleadings and formal discovery within an "appropriate timeframe", alongside recognition that the claimed settlement agreement did in fact contain "additional considerations involved over and above the ordinary deed of settlement". 61 Under the hybrid procedure, Mr Tokley contended that Mr Marika's arguments relating to procedural fairness and the unsuitability of the procedure that Dr Gondarra sought to employ "fell away" because, as he contended "we're not seeking to invoke a summary procedure here". At the level of principle, Mr Marika's counsel, Ms Brownhill submitted that this argument was "contrary to the authorities which all recognise that the court must be satisfied that justice can be done upon the summary procedure." 62 In any event, the distinction Mr Tokley sought to draw did not assist his case overall, for the reasons already outlined above. Even, presuming for a moment that the power in s 22 of the Federal Court Act includes within its scope claims for non-summary enforcement of compromises within an existing proceeding (a proposition for which he provided no authority) it was not in this case, for the reasons already outlined, the expedient, efficient, cost-effective or appropriate course. Further, the proposal to adjust the summary process and import a requirement for pleadings and discovery did little to address the issues for the proper administration of the substantive proceeding, as described above. Neither did it address similar issues for the proper administration of the interlocutory application itself, especially the potential for it to affect parties outside the scope of the substantive ADJR proceeding. As Smith J stated in Roberts (at 565), modern procedure recognises that the "right to relief is not ordinarily affected by the absence of parties interested, so long as justice can be done without joining them". It was not clear to me that such justice could be done here. I was not "clearly satisfied" that the interests of justice would be served under even the hybrid procedures proposed by Dr Gondarra.

[30]

Non-summary enforcement within an existing proceeding 63 Finally, while it was not necessary for me to decide whether the Court may be satisfied that the enforcement claim could proceed other than "in a summary way", I noted that the authorities on the application of s 22 of the Federal Court Act to a party seeking interlocutory relief to enforce a settlement agreement did, as Mr Marika contended, uniformly raise the question whether the application can proceed justly and in a summary way: see Roberts at 564; Phillips v Walsh at 210; Macteldir (2005) at 790 [62]; Darling Downs v Ellwood (Full Court) at 217; Ellwood v Darling Downs (first instance) at 589; and General Credits (Finance) Pty Ltd v Fenton Lake Pty Ltd (1984) 2 Qd R 6 ("General Credits v Fenton Lake") at 9-10. This, so it seemed to me, was no accident. As Smith J in Roberts (at 562), Allsop J in Macteldir (2005) (at 790 [62]), Finkelstein J in We Two v Shorrock at 743 [18] and Spender J in Ellwood v Darling Downs (first instance) at 589 each observed the power conferred on the Court by s 22 to enforce a compromise "appears always to have been regarded as a jurisdiction derived from the old Court of Chancery" (Roberts, at 562). 64 As their Honours detailed, reference to nineteenth century Chancery practice as to the "appropriate procedure for enforcement" (Macteldir (2005) at 790 [62]) reveals that the problem was there "treated … as being one of determining whether the agreement should be enforced summarily in the suit or whether the applicant should be left to proceed by separate bill": Roberts at 562. While, as Smith J stated, provisions such as s 22 should not be "unnecessarily restricted by reference to rules of mere practice and procedure which operated in the old Court" (at 564), he did not, nor has any subsequent judge of which I am aware, take this to mean that the dyad between proceeding summarily in suit or otherwise in a fresh proceeding had broken down. (At best, I note the passing statement was made by McPherson J in General Credits Fenton Lake (at 10) dealing with the Queensland analog of s 22, that "[n]o evident disadvantage therefore stems from determining the matter summarily rather than sending it to trial in either this or another action".) 65 Rather, the distinction appears to have been strongly retained as the jurisdiction has been modernised. It meant, as already referred to and as this Court has accepted, that, unlike the former Chancery Court practice, an agreement may now "be enforced notwithstanding the fact that it involves matters extraneous to the action, and notwithstanding that there is a substantial question raised as to the terms of validity or enforceability of the agreement, provided that the Court is clearly satisfied that justice can be done under the summary procedure" (Roberts at 564; We Two v Shorrock at 753 [19]). The view that the jurisdiction "may now be more freely exercised" in the way just described is not a consequence of any abandonment of the distinction, but instead of an acceptance that concerns about the "justice of the case" can, in some instances and in some respects, now be met within a summary process: see, for example, Roberts at 565. Similarly, when, Finkelstein J stated (at 753 [18]) that "things had progressed" since the Court of Chancery, his Honour understood this progression in identical terms to Smith J in Roberts. In considering the Queensland analog of s 22, McPherson J in General Credits v Fenton Lake echoed this position (at 9-10), explaining that: It was at one time correct to say that an agreement of compromise embodying matters going beyond the scope of the action was enforceable only in separate proceedings and not in the original action itself. By requiring that, in every cause pending before it, the Court should grant all such remedies as the parties appear entitled to, so that as far as possible all matters in controversy between them might be finally determined and multiplicity of legal proceedings avoided, s 4(8) of the The Judicature Act of 1876 enlarged the circumstances in which a compromised might be enforced by orders in the action … [T]he wider view adopted by Smith J in Roberts… seems likely to prevail in Australia … . (Citations omitted) 66 Against this background it appears to me that the non-summary procedure proposed by Dr Gondarra for this interlocutory application may have encountered other hurdles not fully argued before me, in order that, if otherwise expedient and in the interests of justice, it could have proceeded.

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

At a glance

Court

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Judgment (32 paragraphs)

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Legislation Cited (7)

Cases Cited (19)

Cited By (1)