Johnson v Registrar, Federal Court of Australia

THE COURT 1 This is an appeal from a judgment of a Judge of this Court, dismissing an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision of a Registrar of this Court. The Registrar had refused to accept for filing an originating application of the appellant, Mr Johnson. In this proceeding, and at first instance, Mr Johnson was self-represented, although both the primary Judge and this Court granted leave for Mr Paterson to appear in effect as a McKenzie friend on Mr Johnson's behalf. The Court was also assisted at the hearing by Ms Robb as amicus curiae.

Background facts 2 The background facts are explained in the primary judgment. In summary, Mr Johnson is an elder of the Wulgurukaba people. His Honour accepted that Mr Johnson has a deep and abiding sense of connection with Magnetic Island, an island located approximately 9 kilometres from the coast of north Queensland. In this proceeding Mr Johnson sought to file an originating application under s 199C of the Native Title Act 1993 (Cth) ("Native Title Act"), challenging the registration of a particular indigenous land use agreement (ILUA) in the Register of Indigenous Land Use Agreements. We understand that the ILUA related to land on Magnetic Island. In the originating application he sought to file, Mr Johnson challenged the ILUA on the basis that: 1. The Originating Application (Lodgement Id:145056) to Deregister the Indigenous Land Use Agreement and Affidavit were not accepted for filing on 3 July 2014 2. The Indigenous Land Use Agreement was NOT Traditionally Authorised and the Applicants were under duress and not legally represented at the relevant time 3 In the judgment below the primary Judge set out the history of this and related matters in this Court. In particular, his Honour noted: At an earlier unspecified time, the Wulgurukaba people had filed two applications for determination of native title in respect of Magnetic Island. Mr Johnson was one of the persons who constituted the applicant in those applications. In or about 2004 the Wulgurukaba people also entered negotiations as to the terms of an ILUA with the State of Queensland in respect of Magnetic Island. In 2013 Mr Johnson filed an application seeking an order pursuant to s 199C directing the Native Title Registrar to remove the details of the ILUA from the register, on the basis that he and the Wulgurukaba people had been subjected to duress and had, for that reason only, entered the ILUA. The State of Queensland sought an order for summary dismissal of that application, which order was granted: Johnson v Native Title Registrar (2014) 218 FCR 415. An application for an extension of time to appeal against that decision was dismissed: Johnson v Native Title Registrar [2014] FCA 577. 4 It is not in dispute that the application before the primary Judge in this matter relates to the same ILUA as was considered by Rangiah J in Johnson v Native Title Registrar (2014) 218 FCR 415. 5 The primary Judge noted that Mr Johnson relied on s 199C(2) and (3) which provide: Federal Court order to remove details (2) The Federal Court may, if it is satisfied on application by a party to the agreement, or by a representative Aboriginal/Torres Strait Islander body for the area covered by the agreement, that the ground in subsection (3) has been made out, order the Registrar to remove the details of the agreement from the Register. Ground for order (3) The ground is that a 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). 6 At [10] of the primary judgment the trial Judge observed: Annexed to the affidavit was an extract with a minutes [sic] 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. 7 Subsequently his Honour continued: 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. 8 We note that in his originating application which the Registrar would not permit to be filed, the appellant advanced as his second ground of review that the ILUA was, in effect, entered into by the applicants as a result of duress. This was simply to repeat what had been advanced before Rangiah J in Johnson v Native Title Registrar. The appellant's affidavit in support deposed to this assertion of duress. Neither his application nor his affidavit in support raised any issue of undue influence. This basis for seeking to have the ILUA removed from the Register was, it seems, raised for the first time in oral submissions made to the primary Judge by Mr Paterson. The primary Judge adverts to this in his reasons at [15]. Nonetheless, his Honour considered this issue in the passages which we set out above. 9 We also note that in his application for judicial review of the Registrar's decision there were two grounds: (1) That procedures that were required by law to be observed in connection with the making of the decision were not observed. (2) That the decision was not authorized by the enactment in pursuance of which it was purported to be made. 10 However, these grounds were not pressed before the primary Judge. Rather, Mr Paterson, on behalf of the appellant, relied primarily on his argument that the appellant ought be permitted to raise undue influence as a ground for removal under s 199C(2).