Lansen v The Hon Justice H W Olney

REASONS FOR DECISION ON MOTION TO AMEND STATEMENT OF CLAIM AND FOR OTHER ORDERS 1 On 28 September 1998 the Honourable Justice H.W. Olney, the Aboriginal Land Commissioner appointed under the Aboriginal Land Rights (Northern Territory) Act 1976, decided that the Billengarrah land claim, then before him, was not an application of the type referred to in s 50(1)(a) of the Act and that he had no function to perform in relation to it. 2 The Act confers certain functions on the Commissioner which include dealing with applications made "by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals" (s 50(1)). The Commissioner is empowered to "ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land" (s 50(1)(a)(i)). The term "alienated Crown land" is defined in s 3 as "Crown land in which a person (other than the Crown) has an estate or interest, but does not include land in a town". "Crown land" is also defined but that definition is not relevant for present purposes. 3 The decision in issue in this case was a Determination of Preliminary Issue by the Commissioner in relation to the Billengarrah land claim (Claim Number 175). The Determination was expressed in the following terms: "1. Northern Territory Land Corporation a) is not an emanation of the Crown in right of the Northern Territory, b) has a valid and absolute and indefeasible title to an estate and interest in leasehold in the claimed land. 2. The claimed land is not, nor was it at 29 May 1997, either "unalienated Crown land" or "alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals". 3. The application made to the Aboriginal Land Commissioner on 29 May 1997 is not an application of the type referred to in s 50(1)(a) of the Land Rights Act and the Aboriginal Land Commissioner has no function to perform in relation to it." 4 In his reasons for decision the Commissioner referred to the history of the application and the issuing of directions to facilitate hearing and determination of the preliminary issue and notice of his intention to conduct an inquiry in relation to that issue. Separate statements of fact, issues and contentions and written submissions were provided in advance of the hearing by the applicants and the Northern Territory Land Corporation and by the Northern Territory Attorney-General. The leasehold interest the subject of the determination was a Perpetual Pastoral Lease PPL 1069 formerly designated "Pastoral Lease 759". Contentions as to the subsistence and validity of the leasehold interest had been before the Commissioner but were rejected by him. 5 The applicants evidently asserted before the Commissioner that the purported transfer of the lease was void, that no estate or interest in the claimed land had been validly granted or transferred to or vested in the Corporation for failure of various procedural requirements. These included the absence of any declaration by the Administrator in relation to the land in accordance with s 16 of the Northern Territory Land Corporation Act 1986, the failure of the Minister administering the Crown Land Act (NT)1992 to grant an estate or interest in land in conformity with the requirements of that Act and the failure of the Minister administering the Pastoral Land Act (NT) 1992 to issue a lease for pastoral purposes in conformity with the requirements of that Act. 6 On 26 October 1998 the applicants filed an application for an order of review of the decision of the Commissioner under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") and for relief under s 39B of the Judiciary Act 1903 (Cth). 7 The grounds set out in the application assert, inter alia, that the Commissioner failed to accord procedural fairness by failing to adjourn his consideration of the preliminary question identified by him pending the determination of proceedings brought by the applicants in the Supreme Court of the Northern Territory to rectify the register maintained under the Real Property Act (NT) so as to remove the entry relating to the interest of the Corporation in relation to the claimed land. Moreover it is said that the Commissioner erred in law in finding that the Corporation was not an emanation or authority of the Crown in right of the Northern Territory and that no person other than the Crown held any estate or interest in the land for purposes of ss 3 and 50 of the Aboriginal Land Rights (Northern Territory) Act. The Commissioner is said to have erred in determining that the Corporation had a valid and absolute and indefeasible title to an estate and interest in leasehold in the claimed land and in failing to find that, as at, 29 May 1997, the date of the application under the Aboriginal Land Rights (Northern Territory) Act 1976, no estate or interest in the claimed land had been validly granted or transferred to or vested in the Corporation. Thus it is said the Commissioner had erred in failing to find the claimed land was unalienated crown land or alienated crown land in which all estates or interests not held by the Crown were held by Aboriginal interests, being native title holders. 8 Further grounds are set out in an accompanying statement of claim. That statement of claim sets out the history of the relevant leasehold interest, namely Pastoral Lease No. 759, originally granted on 25 January 1972, transferred on 11 January 1984 and subject to mortgage on the same date. The statement of claim then sets out the chronology of subsequent mortgages granted over the lease. Eventually a transfer of the lease by the Commonwealth Development Bank of Australia to the Northern Territory of Australia, was registered on 21 July 1993. The transfer was done by the Bank as mortgagee exercising a power of sale. Immediately following the registration of that transfer, according to the statement of claim, the lease was transferred to the Northern Territory Land Corporation by the Northern Territory Government. The statement of claim asserts that the transfer of the interest from the Commonwealth Development Bank to the Northern Territory upon registration vested the lease in the Crown so that the lease merged with the interests of the Crown at that time and the land became unalienated crown land within the meaning of the Crown Land Act (NT). It is said therefore that the purported transfer of the lease to the Corporation was null and void and of no effect because at the time of the purported transfer the lease no longer existed. Alternative pleas are set up in paragraphs 23 and 24 of the statement of claim asserting that the transfer was invalid for non-compliance with s 16 of the Northern Territory Land Corporation Act 1986. It is further asserted, in any event, that if at the time of the application the Corporation held an interest in the land it was an authority or an emanation of the Crown in right of the Northern Territory for the purposes of ss 3 and 50 of the Land Rights Act and the interest held by it was not such as to render the land other than unalienated crown land for the purposes of ss 3 and 50. 9 The relief claimed in the application includes an order pursuant to s 16 of the ADJR Act setting aside the determination of the Commissioner in relation to the preliminary question, a declaration that the purported transfer of the pastoral lease by the Northern Territory Government to the Corporation on 21 July 1993 was void and of no effect and a declaration that no estate or interest in the claimed land had been validly granted, transferred to or vested in the Corporation. A further declaration is sought that the Corporation has not at any time from 21 July 1993 held a pastoral lease or any other registrable interest in relation to the subject land. A direction is sought pursuant to s 64 of the Real Property Act (NT) that upon lodgment of a copy of the order the fourth respondent, the Registrar-General for the Northern Territory, take such steps as are necessary to correct the Register to give effect to the declarations. An order is also sought that upon completion of the steps necessary to rectify the Register the Commissioner further consider the claim according to law. 10 Directions were given by O'Loughlin J that the question whether any, and if so which, party should give discovery in the matter and the nature of such discovery be listed for hearing before a Judge on Monday, 1 February at 2.15pm. Ancillary directions relating to the filing of submissions on the question of discovery were also made. 11 The Land Corporation filed a defence on 11 December and the Northern Territory Government on 18 January 1999. On 1 February 1999, Mansfield J made directions fixing a hearing date for the application on 10 May 1999 with 11 May 1999 also reserved. Ancillary directions for the filing and serving of books of materials and outlines of contention were also made. The question of discovery was adjourned to a date to be fixed but any further request for discovery requiring directions was to be brought by exercising liberty to apply by 15 March. All parties were given liberty to apply on seven days notice. 12 On 24 February 1999 O'Loughlin J made orders by consent which included the following: 1. This matter be referred into the Full Court list for determination at a time and place to be determined. 2. Costs in the cause. 3. Liberty to apply including liberty to relist on seven days notice. 4. Further consideration of these proceedings reserved and directions hearings adjourned to the Full Court callover in Darwin on Wednesday 10 March 1999 at 9am. In addition his Honour directed that the applicants file and serve a draft copy of their proposed Index to the Appeal Book by close of business on 8 March 1999. 13 On 18 March 1999 O'Loughlin J, sitting in Darwin, ordered that further consideration of the proceedings reserved and directions hearing be adjourned to 13 April and that subject to confirmation by the Chief Justice the matter be listed for hearing on Monday, 30 August 1999 at 2.15pm or so soon thereafter as counsel might be heard. There was liberty to apply and directions for the filing of written submissions and the appeal book index. On 6 April the Northern Territory Land Corporation filed a motion for leave to amend the defence together with the amended defence proposed. On 13 April 1999 O'Loughlin J granted leave to the Corporation to amend its defence accordingly. Again, his Honour directed that subject to formal confirmation by the Chief Justice, the matter be listed for hearing before the Full Court of the Federal Court on Monday, 30 August 1999 at a venue to be advised or so soon as counsel might be heard after the completion of argument in the matter of Foster v Northern Territory of Australia & Others (DG15 of 1998). 14 The application was then listed for callover on 8 June in Darwin before O'Loughlin J. The only order made by his Honour at that time was that there be liberty to apply on short notice. 15 Asked by his Honour whether everything was in order for the appeal to proceed, Mr Levy, appearing for the applicants, said: "It is potentially in order, your Honour. There are two matters I should raise: the first, as my friend Miss Webb, will undoubtedly tell you, is that I have been remiss in fulfilling the order to create a draft appeal index until today; that draft index has now been circulated to the parties and there will be further discussions about that, so that is the first point. The second point, your Honour, is I foreshadow on the basis of counsel's advice that there will be an application for leave to make a number of amendments to the statement of claim. Again, I circulated that document today and there will be further discussions about that before it comes before the court." His Honour asked whether it was intended to have the issue of amendments resolved before the appeal proper or as part of the appeal proper. Mr Levy responded: "No it would be intended to resolve it beforehand, your Honour. It may well be that it is a matter which is uncontroversial but I would need to discuss that with my friends." His Honour then said: "All right. I don't like to rush you, Mr Levy, but it is important to know that the appeal papers are on track. Are you quite satisfied that they are?" Mr Levy responded: "I am your Honour and I should say that - I am sure my friends would say this - I am happy to be rushed; the case is of course in August and I don't have any excuse for the lateness but I certainly have an understanding of that fact." There was then discussion of the relationship between the Foster and Lansen cases. His Honour confirmed that the matter would be listed for the week commencing Monday, 30 August 1999 at a date and time to be advised in due course. There was nothing in the transcript to indicate that the matter was not ready for hearing or that the proposed amendments would have any impact upon the hearing of the matter. The hearing of the application was subsequently allocated to a Full Court comprising French, Tamberlin and Sackville JJ and listed to commence on 1 September 1999 in Darwin. Two and a quarter days were allocated to it. 16 Surprisingly, in the light of what had proceeded before O'Loughlin J, senior counsel for the applicants wrote to the Presiding Judge on 14 July 1999 in the following terms, inter alia: "The matter of Lansen is one which, in the view of all parties, is not ready for hearing at that time. There are evidential questions which will need to be resolved before a hearing and which, despite the fact that one aspect of the matter involves review of a decision of a member of the Court (sitting as Aboriginal Land Commissioner) should in the first instance be dealt with by a single Judge. The parties consider it may be appropriate that it be referred back to Olney J for consideration of the additional matters. If it may appropriately be done, informally and with the consent of the parties, we would ask that this matter be removed from the current sittings of the Full Court. If that is appropriate we would be grateful if you could advise the Acting Chief Justice of that course, or advise us as to what steps we need to take in that regard." The letter then went on to deal with the listing of the matter of Foster. The letter offered neither explanation nor apology for the change of position now adopted on behalf of the applicants. 17 On 23 July 1999 a motion was filed on behalf of the applicants returnable at 9.15am on 28 July 1999 for orders in the following terms: "1. The Applicants have leave to amend the statement of claim to include paragraphs 23A and 23B, as contained in the draft annexed hereto. 2. That the questions of fact and law raised by those paragraphs be decided separately from any other questions raised by the application and be decided before the other questions. 3. The matter be remitted to a single judge of the Court for determination of the separate questions. 4. Following the determination of the separate questions, the remaining matters in dispute (and any appeal from the decision of a single Judge in relation to the separate questions) be dealt with by this Court at a date to be fixed." 18 The principal amendments to the statement of claim were by way of the proposed introduction of paragraphs 23A and 23B in the following terms: "23A(1) The legislation providing for the power of a Territory Minister to grant or transfer a lease of Crown lands does not extend to permit a grant or transfer for a purpose which would avoid or subvert the operation of an Act of the Commonwealth having application in the Territory. (2) A substantial purpose of the purported grant or transfer of the lease by the Territory Minister to the Second Respondent was to remove the land from the categories of land which could be the subject of an application under s 50(1)(a) of the Land Rights Act. (3) Such a purpose was an improper purpose. (4) Such a purpose rendered the purported grant or transfer beyond power and invalid. 23B(1) If the purported grant or transfer was invalid because it was (a) for an improper purpose with respect to the operation of a Commonwealth Act; (b) beyond the power of the Territory Minister because a law granting such a power would be inconsistent with a Commonwealth law; the registration of an interest so granted is invalid and ineffective to confer an indefeasible title on the grantee. (2) To the extent that the Real Property Act purports to have that effect it is invalid as beyond the legislative power of the Legislative Assembly." There were other amendments of less consequence. In an affidavit in support of the motion sworn by Mr Levy it was said that the amendment sought to be made to the statement of claim adopts an alternative approach namely that the purpose for which the land was transferred or granted to the Corporation was in a relevant sense an improper purpose and that accordingly the grant or transfer was invalid. The affidavit went on to assert: "7. The absence of a function to be performed by the First Respondent in relation to the claim depended upon the existence of a particular fact, namely that the Second Respondent had a valid interest in the land. In seeking to establish that that fact did not exist, the amendment seeks to raise a challenge to the decision under the Judicial Review Act. The basis of this ground was asserted in the application at paragraphs 3 and 4 under the heading "Grounds". The primary position of the Applicants is that no amendment is necessary to the statement of claim and, accordingly, an application for leave is strictly unnecessary. However, the applicants have drafted an amendment and, if the Court is minded to direct an amendment, either to the application or the statement of claim pursuant to s 11(6) of the Judicial Review Act. The Applicant would not oppose that course." 19 It was further asserted that so far as the Judiciary Act is relied upon the applicants are of the view that no amendment is strictly necessary. It was then said that the applicants had sought to deal with the factual issues raised by this aspect of the matter by means of a Notice to Admit Facts and a Notice to Produce Documents. Moreover it was said it seems appropriate that an order for discovery be made. Informal discovery, according to the affidavit, has been had in relation to other issues in the proceedings. However, now it is said that the applicants consider it necessary to seek an order for general discovery in addition to an order for particular discovery in relation to classes of documents identified in the Notice to Produce. The Notice to Produce was dated 9 July 1999 and was annexed to the affidavit of Mr Levy. On the face of it the accessing of the documents set out in the Notice to Produce would be a most extensive exercise. It included, for example, a requirement directed to the Northern Territory Government to produce: "Any minute, resolution, letter, memo, file note, discussion paper or other document regarding, proposing, or leading to: (1) The enactment of the Territory Development Act 1979 (Act No. 80 of 1979), being an Act of the Legislative Assembly of the Northern Territory which amended the Territory Development Act." The same request was made in respect of five other statutes. That was merely one of some five paragraphs setting out the classes of documents whose production was sought. 20 It was then said in the affidavit, at paragraph 11, that because the application under the Judicial Review Act sought to review a decision of Olney J, who is a member of the Court, it was necessary that the application be referred to a Full Court pursuant to s 20(2) of the Federal Court of Australia Act 1976. To the extent that the matters raised by the proposed amendments were not the subject of fact finding by his Honour, nor the subject of his specific decision, the applicants requested that they be referred to a single judge for separate determination. The affidavit went on: "It is submitted that the policy underlying s 20(2) is to ensure that decisions made by a Judge of the Court sitting otherwise than as a member of the Court should not be reviewed by a single Judge: that policy reflects the principle of comity which would tend to make an appeal from the Tribunal or authority to a single Judge a futile exercise. That principle has no application in relation to a matter which has not been determined by a single Judge, sitting as a Tribunal or authority. The Court has original jurisdiction in relation to matters arising under the Land Rights Act: Judiciary Act, s 39B(1A). Such jurisdiction would normally be exercised by a single Judge: s 20(1). An appeal from a single Judge would constitute part of the appellate jurisdiction of the Court: s 24(1)." Reference was made to Amadio Pty Ltd v Henderson & Ors (unrep. 28 August 1998) in which a Full Court comprising Northrop, Ryan and Merkel JJ exercised a power of remittal in dealing with a matter purely within its appellate jurisdiction. Such an order, it was said, "appears appropriate in the present case". 21 Allowing for matters which may arise ex improvisu, the Court is entitled to expect that counsel for parties appearing before it in directions hearings and callovers for the Full Court list will have given proper consideration to, and made all necessary inquiries about, the matters of which they speak so that the Court may rely upon their statements in directions it gives and in the allocation of hearing dates. This is particularly important in relation to the listing of Full Court matters which involve considerable administrative preparation and the allocation of Judges' time from around Australia. In this particular case, three Judges, two from Sydney and one from Perth, have been allocated to the hearing of this application in Darwin together with the matter of Foster and another matter in the same week. 22 Contrary to the tenor of the letter to the Court from counsel for the applicants seeking separate hearing of the improper purpose issues raised by the proposed amendments to the statement of claim, the respondents wanted the matter to proceed and opposed the amendments. The Solicitor-General for the Northern Territory submitted that the application to amend was defective because it sought to include an allegation of improper purpose as a ground of review where that allegation was not raised or argued as an issue in respect of the making of the decision sought to be reviewed. Neither the issue of inconsistency nor improper purpose was an issue before the Aboriginal Land Commissioner. The basis of jurisdiction relied upon by the applicants for the purpose of raising the issue is s 39B(1A) of the Judiciary Act 1903. The Solicitor-General submitted that unless the Chief Justice makes a direction under s 20(1A) of the Federal Court of Australia Act 1976 that the matter be heard by the Full Court, jurisdiction in relation to such a matter can only be exercised by a single Judge - see Federal Court of Australia Act s 20(1). It was submitted it would be inappropriate for such a direction to be made in circumstances such as these where issues of fact exist and findings of fact would have to be made. On the foundation of the proposition that the Full Court lacks jurisdiction to hear and determine the application it was also submitted for the Solicitor-General that there was no power for the Full Court to remit the whole or part of the proceeding to a single Judge. In any event there was a broader base for the respondents' opposition namely that having regard to the scope of the Notices to Produce annexed to Mr Levy's affidavit a wide range of further factual material would have to be located, considered, produced and tendered if the new issues were to be raised. The applicants, it was pointed out, are seeking to explore and canvass events extending back to 1979. The relevant transfer of land to the Corporation occurred in July 1993. The Aboriginal Land Commissioner issued directions in relation to the hearing of submissions concerning his jurisdiction to entertain the claim in May 1998 and in August of that year received evidence and heard submissions. The new issues were not raised until 24 June 1999. It is said that the applicants now seek to rely upon material facts not raised (let alone established) before the Aboriginal Land Commissioner although they had every opportunity to put them before the Commissioner but failed to do so and readily concede that the Commissioner did not err for failing to take those facts into account. It would be unjust, it was said, to allow an amendment to the pleadings at the review stage where an issue did not emerge or was not relied upon before the Commissioner. 23 In the event that leave to amend were granted the third respondent would seek an order that the hearing date be vacated and the applicants pay the costs thrown away. Consideration 24 The present proceedings have been instituted in the original jurisdiction of this Court. That is a jurisdiction ordinarily to be exercised by a single Judge pursuant to s 20(1) of the Federal Court of Australia Act 1976. However s 20(2) provides: "The jurisdiction of the Court in a matter coming before the Court from a tribunal or authority (other than a court) while constituted by, or by members who include, a person who is a Judge of the Court or of another court created by the Parliament shall be exercised by a Full Court." 25 The investing of the original jurisdiction in a Full Court by virtue of s 20(2) is not qualified by any ancillary provisions allowing for the exercise of that jurisdiction in interlocutory matters by a single judge. This stands in contrast with the provision under s 25 for the exercise of the appellate jurisdiction of the Court. Section 25(1) provides for the appellate jurisdiction of the Court to be exercised by a Full Court. However, under s 25(2) applications for leave or special leave to appeal to the Court, for extensions of time, for leave to amend grounds of appeal or to stay an order of a Full Court may be heard and determined by a single Judge or by a Full Court. Moreover under s 25(2B) a single Judge or a Full Court may join or remove parties, make orders by consent disposing of appeals and give directions about the conduct of appeals to the Court. 26 Although none of the parties has raised the question of my jurisdiction to deal with this motion, I am obliged to consider that question. For the short reason outlined above, I consider that I do not have jurisdiction to deal with it. The implied incidental power is an incident of jurisdiction, it does not extend or modify it. I cannot, in my opinion, invoke that power to dispose of this motion. There is a lacuna in the Federal Court Act in this respect. It is plainly most inconvenient if I am correct in the opinion that matters of this kind cannot be dealt with by a single Judge as they can in the exercise of the appellate jurisdiction of the Court. I am therefore unable to make the orders sought. Given the history of this matter I would have been reluctant to do so in any event. I have however taken the opportunity to consult with the other members of the Full Court which has been constituted for the purposes of the substantive application. We are all of the view that the application should proceed as presently pleaded on the dates fixed in Darwin. If there are issues which the parties contend are open on the application but should not be determined by the Court in its disposition of the application, then appropriate submissions may be made at that time. It does appear that there may be issues, particularly those going to the subsistence and statutory validity of the transfer