Johnson v Registrar, Federal Court of Australia

REASONS FOR JUDGMENT 1 Mr Arthur Charles Johnson is a Wulgurukaba man. He is an elder of that people. The necessary inference to be drawn from the affidavits which he has filed in this proceeding and also the further affidavit which forms part of exhibit 1 is that he has, in his heart and soul, a deep and abiding sense of connection with Magnetic Island. It is no coincidence that it is at that place that he chooses to make his home. Nothing in what follows in any way entails any doubt on my part as to the sincerity of that feeling of connection or his status as an elder of the Wulgurukaba people. 2 Indeed, it is that very sincerity which has caused him to seek to file in the Court an application which would challenge, yet again, the registration on the Register of Indigenous Land Use Agreements (the register) under the Native Title Act 1993 (Cth) (Native Title Act) of a particular indigenous land use agreement. More of that shortly. 3 In the qualification "yet again" is to be found both the occasion for this proceeding and also the difficulty which Mr Johnson faces. The reason for that difficulty is nowhere better summarised than in the following passage from the joint judgment of Gleeson CJ and Gummow, Hayne and Heydon JJ in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [31] to [35] (D'Orta-Ekenaike), where their Honours observe, under the heading "The judicial process as an aspect of government" and in the context of a case concerning a barrister's immunity from suit, the following: 31. In Giannarelli, Mason CJ said that "the barrister's immunity, if it is to be sustained, must rest on considerations of public policy". … 32. To adopt the language found in the cases considering Ch III of the Constitution, the central concern of the exercise of judicial power is the quelling of controversies. Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities, or the community as personified in the Crown or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the "judicial branch of government" is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed. 33. As s 71 of the Constitution says, what is "vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" is the judicial power of the Commonwealth, that is, the judicial power of the national polity. No matter whether the judicial branch of government is separated from the other branches of government (as it must be at the federal level but, at least generally, is not at the State level it is, in Quick and Garran's words, "the third great department of government". Finality 34. A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion in circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding. 35. The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the so-called "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe, "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial". [footnote references omitted] [emphasis in original] 4 Last year, Mr Johnson filed an originating application seeking an order pursuant to s 199C of the Native Title Act directing the Native Title Registrar to remove the details of an Indigenous Land Use Agreement from the register. He alleged in that proceeding that he, in particular, and also the Wulgurukaba people more generally, were subjected to duress and that they would not have entered into that Indigenous Land Use Agreement but for that duress. 5 Earlier, the Wulgurukaba people had filed two applications for determination of native title in respect of Magnetic Island. Later, they came to enter into negotiations as to the terms of an Indigenous Land Use Agreement with the State of Queensland in respect of Magnetic Island. Mr Johnson was one of those who constituted the applicant for the purposes of the native title applications. In both the native title applications and in the negotiations concerning an Indigenous Land Use Agreement the applicant and the Wulgurukaba people were represented by a solicitor, a Mr Owen. The State, as the active respondent, the other people the came to bring an application which materially sought the summary dismissal of the application under s 199C. The State succeeded in that application: see Johnson v Native Title Registrar (2014) 218 FCR 415. 6 The judge who heard that summary dismissal application Rangiah J gave full and indeed sympathetic consideration to the merits of the application under s 199C. Even taking into account the strictures which attend the summary dismissal of a proceeding, his Honour concluded that Mr Johnson did not have any reasonable prospect of demonstrating duress for the purposes of s 199C(3). That order of dismissal was later the subject of an unsuccessful applications for leave to appeal: Johnson v Native Title Registrar [2014] FCA 577. 7 Earlier this year, Mr Johnson sought to file electronically another application to remove the Indigenous Land Use Agreement concerned from the register. In that application the claim was detailed in this way: On the grounds stated in the accompanying affidavit the applicant applies to the Court for an order under section 199C(2) of the Native Title Act for the removal of details of an agreement from the Register of Indigenous Land Use Agreements. The agreement concerned is one and the same as the subject of the earlier proceeding. 8 In an accompanying affidavit Mr Johnson asserted, at paragraph 10, that the proceedings, "involve issues of duress, lack of traditional authorisation, racial discrimination and acquisition of land." 9 Not all of those identified basis of prospective challenge engage with the terms of s 199C(3), which details the grounds for the making of an order for removal of the details of an Indigenous Land Use Agreement from the register. Those grounds are that the party would not have entered into the agreement but for fraud, undue influence or duress by any person whether or not a party to the agreement. 10 Annexed to the affidavit was an extract with a minutes of a meeting of the Wulgurukaba people in respect of the Indigenous Land Use Agreement's approval. Those minutes record, amongst other things, Mr Johnson's statement that he was "not happy with that". That appears to be the vote in respect of the approval of the agreement. 11 A registrar refused to permit the filing of the further application. That decision was informed, it appears, not just by the order of dismissal and related reasons for judgment of Rangiah J but also by the fact that an application for leave to appeal against that particular order of dismissal has been refused. 12 Mr Johnson now seeks the review of the registrar's decision. In support of that review application he has filed two affidavits made by him along with an affidavit of another of the original native title applicants, Shirley Anne Walker. 13 Mr Johnson was not represented by a lawyer in the proceedings before Rangiah J nor was he this morning. I did permit a friend of his, Mr Pattison, to appear by leave. Mr Johnson was very well served by the submissions which his friend made, which supplemented those which Mr Johnson himself briefly made. 14 Mr Johnson did not have, at the time of the proceedings before Rangiah J, a copy of the minutes of meeting to which I have referred. He had, then, as he had today, all of the difficulties which can entail a person without legal training seeking to prosecute a case in our courts. 15 It was put on Mr Johnson's behalf that undue influence was not expressly raised in the proceeding before Rangiah J. Even so, it could have been. It will be apparent from the passage from D'Orta-Ekenaike quoted that the difficulty Mr Johnson faces is one of finality in relation to an exercise of judicial power. Everything which is in his current affidavits could have been placed before the Court on the earlier occasion. Everything he seeks to agitate by the application which he wishes to file could have been agitated on the earlier occasion. Even taking into account the further affidavit, material the case is really no higher than it was before, in any event. There is, even on the current material, no reasonable prospect of success in respect of any application on the basis of duress or undue influence. 16 But the burden is higher than that for Mr Johnson, having regard to the passage quoted from D'Orta-Ekenaike. Truly, the case is one which has been dealt with to finality, at least in a practical sense, by the order of dismissal which was made by Rangiah J. And that order of dismissal has been the subject of an unsuccessful application for leave to appeal. 17 It would be subversive in the circumstances of the principle of finality referred to by the High Court for me to overturn the registrar's decision. That is so, even though I have looked at the matter, as I consider I am obliged to do, afresh. There has been a quelling of the controversy by the judicial branch of government. That is not a quelling which meets Mr Johnson's satisfaction. That is as may be. For the reasons given by the High Court in D'Orta-Ekenaike, there are wider societal interests at play. There has been, earlier, a full opportunity for the determination of the controversy which Mr Johnson seeks again to agitate. 18 It may perhaps be that Mr Johnson would have been more comfortable with legal representation. Equally, though, it is the duty of responsible legal advisers in respect of a case which has no reasonable prospect of success to give such advice to a client. So it may be that, faced with legal representation and such advice, the earlier proceeding would not have been prosecuted at all. 19 There is something of that same sentiment behind the occasion for the entry into the Indigenous Land Use Agreement. The reasons for that are detailed in Rangiah J's judgment but in short form they would appear to be these. The native title applications in respect of Magnetic Island had about them a difficulty highlighted by a draft connection report in establishing the requisite connection to satisfy an important criterion for a determination of native title. Inferentially, there would appear to have been consequential legal advice that the best outcome for the native title claim group was the entry into an Indigenous Land Use Agreement. Mr Johnson has had occasion to question the wisdom of that and he has had different views on that subject at different times, as Rangiah J's reasons for judgment highlight. For all that, that agreement also, in its own way, quelled a controversy. 20 It was open to Mr Johnson to challenge the registration of the agreement. He sought to do that but sought to do it in a way which did not, in the view of the judicial branch of government, enjoy reasonable prospects of success. Society has a singular interest in the final determination of disputes by the judicial branch of government and, further, in a refusal to entertain a reagitation of any such determination. 21 For these reasons, the application for the review of the registrar's decision will be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.