Lawson v Minister for Environment and Water

Land and Environment Court (NSW)|2022-09-30|Before: Moore J, Mr J

Category: Procedural rulings Parties: Ms Dorothy Lawson (Applicant) Minister for Environment and Water (First Respondent) State of New South Wales (Second Respondent) Barkandji Native Title Group Aboriginal Corporation (Subpoenaed Party) Representation: Counsel: Mr D Yarrow, barrister (Applicant) Mr W Ambrose, barrister (First Respondent) Mr J Waters SC (Second Respondent) Ms C Taggart, barrister (Subpoenaed Party)

Solicitors: Gilbert & Tobin (Applicant) Crown Solicitors Office SA (First Respondent) Crown Solicitors Office NSW (Second Respondent) Barkandji Native Title Group Aboriginal Corporation (Subpoenaed Party) File Number(s): 316612 of 2021 Publication restriction: No

TABLE OF CONTENTS Introduction These proceedings Introduction The contested subpoena The 30 September 2022 hearing Introduction The position of the parties on joinder The hearing on joinder The current nature of Ms Lawson's claim Relevant statutory provisions Introduction The relevant UCPR rule The Civil Procedure Act provisions Joinder The submissions of the Corporation, Ms Lawson and the State parties on joinder Consideration The decision in Ross v Lane Cove These proceedings Directions Orders

Introduction

What is set out below are the opening four paragraphs of my decision in Lawson v South Australian Minister for Water and the River Murray [2017] NSWLEC 62: 1 In 1922, the New South Wales Government resumed all such land at Lake Victoria in far south‑western New South Wales as may have been in private possession necessary for the purposes of the transfer of those lands to the relevant representative of the South Australian Government for future water storage uses. The acquisition was made pursuant to the provisions of the Public Works Act 1912 (the Public Works Act). 2 On 8 December 2014, Biscoe J granted an extension of time to Mrs Lawson to lodge a claim for compensation for the resumption of that land (see Lawson v South Australian Minister for Water and the River Murray (No 2) [2014] NSWLEC 189). His Honour's ability to grant such an extension arose from the discretion vested in him for this purpose by s 102 of the Public Works Act. Mrs Lawson has now lodged her claim, the validity of which is contested by both the New South Wales and South Australian Governments. 3 Mrs Lawson's claimed legal interest is said to arise from possessory title to the land being held by her great-grandfather from some time after the mid‑nineteenth century; the transmission of that possessory title to Mrs Lawson's grandmother who, it is claimed, held that possessory title as at the date of acquisition in 1922; and transmission to Mrs Lawson of the right to claim compensation arising from the 1922 resumption having been transmitted to Mrs Lawson in 1956 on the death of her grandmother. 4 The decision of Biscoe J granting the necessary extension of time cleared but the first of many legal hurdles that must be overcome by Mrs Lawson before any compensation for the resumption would actually fall to be paid to her.
My 2017 decision was the second step in the process of determining concerning Ms Lawson's claim for compensation arising out of the 1922 acquisition of Lake Victoria in south‑western New South Wales. Since that time, there have been multiple proceedings concerning Ms Lawson's claim. For completeness, the list of these proceedings is set out below: Land and Environment Court Lawson v South Australian Minister for Water and the River Murray [2014] NSWLEC 158 (29 September 2014, Biscoe J) Lawson v South Australian Minister for Water and the River Murray (No 2) [2014] NSWLEC 189 (08 December 2014, Biscoe J) Lawson v South Australian Minister for Water and the River Murray [2017] NSWLEC 62 (30 May 2017, Moore J) Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50 (22 March 2022, Robson J) Supreme Court Lawson v Minister for Environment and Water (2020) 19 BPR 40,215; [2020] NSWSC 186 (10 March 2020, Ward CJ in Eq) Supreme Court - Court of Appeal Lawson v Minister for Environment & Water (SA) (2021) 388 ALR 335; [2021] NSWCA 6 (11 February 2021; Bathurst CJ, Basten and McCallum JJA)

Introduction

A substantive hearing (and its necessary prehearing timetable) has been set down to enable the process of determining Ms Lawson's claim to proceed. That next stage is a hearing of eight days, the first two of which are to be held on site at Lake Victoria; then the following three days are to be held at Wentworth Court House in south‑western New South Wales; and, finally for this phase, a further three days are to be heard in Sydney the following week. This phase of the proceedings will address relevant anthropological and cultural issues requiring consideration arising out of Ms Lawson's claim.
Depending on the outcome of this phase, a second (and final) phasey may be necessary to determine valuation and quantification of compensation issues.

The contested subpoena

On 13 July 2022, a subpoena was issued on behalf of Ms Lawson to the Barkandji Native Title Group Aboriginal Corporation (the Corporation) - a prescribed body corporate established for the purposes of holding on trust the native title rights on behalf of the native title holders whose native title rights were recognised by the Federal Court of Australia of Australia in determinations made in 2015 and 2017. It will be later necessary to refer to some details of the 2015 determination. The powers and functions of the Corporation are derived from the Native Title Act 1993 (Cwth) (the Native Title Act) and the Native Title (Prescribed Bodies Corporate) Regulation 1999 (Cwth) (the Regulation) made pursuant to the Native Title Act. Further mention of how the functions of that Corporation might be engaged for the purposes of Ms Lawson's proceedings are later addressed.
For present purposes, it is to be noted that, on 25 July 2022, the Corporation filed a Notice of Motion seeking to set aside a number of elements of the subpoena issued to it on behalf of Ms Lawson. Determination of that Notice of Motion was assigned to me by the Chief Judge, as the hearing of the next substantive phase of Ms Lawson's claim, in February 2023, has been assigned to me.
As a consequence, the Corporation's Notice of Motion to set aside portions of the subpoena was set down for hearing before me on 8 September 2022.
Helpful submissions concerning that motion were filed by Ms Taggart, counsel for the Corporation and Mr Yarrow, counsel for Ms Lawson. As a consequence of my prehearing reading of those submissions, I raised with counsel for the Corporation, for Ms Lawson and for the two State parties (as appropriate, I will refer to the First Respondent and the Second Respondent as the State parties) whether or not, in light of the decision of the Court of Appeal in Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 (Ross v Lane Cove), it was necessary for the Corporation to be joined as a party to the proceedings pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). I indicated that I was of the view that this possibility needed to be addressed as a step antecedent to addressing the Corporation's motion to set aside the subpoena issued to it.
As a consequence, I set a timetable for the Corporation and the three present parties to the proceedings to file and serve submissions on the issue of whether or not the Corporation should be joined as a party. I set down that matter for hearing on 30 September 2022 and also adjourned the Corporation's Notice of Motion to that date.

Introduction

The 30 September 2022 hearing was held partially in person and partially by audio‑visual link as a consequence of the wide geographic spread of the location of counsel appearing before me. The Corporation was represented by Ms C Taggart, barrister, located in Perth. Ms Lawson was represented by Mr D Yarrow, barrister, located in Melbourne. The South Australian Minister was represented by Mr W Ambrose, barrister, located in Adelaide. The State of New South Wales was represented by Mr J Waters SC, who was located in Sydney and who appeared in person.
I should acknowledge, with gratitude, the comprehensive and helpful submissions, both written and oral, which I have received from all counsel to enable me to address the question I here determine - being whether or not the Corporation should be made a party to the proceedings.

The position of the parties on joinder

The Corporation proposes that it should be joined as a party to the proceedings, a position which is opposed by Ms Lawson. The State parties each advanced the view that, on balance, it was appropriate that the Corporation be joined but neither State party played a primary role in advocating that position.
As a consequence, the hearing proceeded on the basis of Ms Taggart advancing the case on behalf of the Corporation, followed by oral submissions (put concisely by counsel) on behalf of each of the State parties, followed by Mr Yarrow on behalf of Ms Lawson, with Ms Taggart replying on behalf of the Corporation.

The hearing on joinder

The hearing was conducted efficiently, taking only some two hours to be completed. At the conclusion of the reply submissions for the Corporation, I reserved my decision.
Prior to doing so, there was a brief discussion arising out of the then applying timetable for the preparation prior to, and ensuring the holding of the dates set for, the hearing in February 2023.
The result of this discussion was that, first, there would need to be an extension of time for Ms Lawson to have her expert evidence prepared (a position partly arising as a consequence of the necessity to resolve the Corporation's motion concerning the subpoena issued to it) and, second, if I concluded (as I have concluded for reasons later explained) that the Corporation should be joined as a party, a period of time should be permitted for the Corporation to determine what role it would seek to play in the substantive proceedings, and whether its attitude to the documents subject to the contest in its set aside motion might need to form part of any evidence upon which the Corporation might wish to rely if a party to the substantive proceedings.

The current nature of Ms Lawson's claim

After the various earlier proceedings listed at [2], Ms Lawson's claim is now advanced on two separate bases. The first basis is, in short, a claim for compensation for the extinguishment of such native title rights over Lake Victoria as may have been held by Ms Lawson's maternal grandmother as at 1922. The second basis for her claim is that the compulsory acquisition of the land at Lake Victoria involved the acquisition of possessory title held in a similar fashion and transmitted to Ms Lawson. It is not necessary to explore either of these claims in any greater detail for the purposes of this decision.
It is, however, appropriate to note that the native title determinations of 2015 and 2017 made by the Federal Court of Australia were determinations concerning the native title rights of the Barkandji and Malyangapa Peoples concerning an extensive area of south‑western New South Wales, including land which surrounds Lake Victoria (but does not include Lake Victoria because the 1922 acquisition extinguished any native title which might have existed at that time).
The Maraura People are a subgroup of the native title holders represented by the Corporation. Ms Lawson is a member of this subgroup. Ms Lawson derives her cultural lineage, for the purposes of the present proceedings, by virtue of her being a descendant of one of the apical ancestors nominated in cl 4 of the 2015 native title determination. Two other members of the cohort of apical ancestors nominated in that clause are identified by Ms Lawson, in her pleadings, as being apical ancestors of the members of the Maraura People who are said to have had rights with respect to the Lake Victoria land as at 1922, when such rights, on Ms Lawson's case, were extinguished - thus giving rise to a claim for compensation. It is not necessary, for present purposes, for me to address these matters in any further detail.

Introduction

The primary relevant provision requiring my consideration for present purposes is r 6.24(1) of the UCPR. Providing the statutory matrix sitting above this statutory provision, and relevant for the present purposes, are elements of ss 56 and 57 of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act).
I have earlier referred to the relevant Commonwealth statutory provisions relating to the Corporation. It is not necessary to set out the detail of any of those Commonwealth statutory provisions. It is, however, appropriate to set out the relevant elements of the UCPR and of Civil Procedure Act.

The relevant UCPR rule

Rule 6.24(1) of the UCPR is in the following terms: 6.24 Court may join party if joinder proper or necessary (1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.
As can be seen, this provision creates a discretionary power to join an individual or entity as a party to proceedings if it is necessary to do so. It is settled law that this power is able to be exercised on a court's own motion, as is here the case.

The Civil Procedure Act provisions

It is next appropriate to set out the relevant elements of ss 56 and 57 of the Civil Procedure Act. The relevant elements of these provisions are: Division 1 Guiding principles 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

The submissions of the Corporation, Ms Lawson and the State parties on joinder

The written and oral submissions addressed a wide range of issues, including the extent to which the Corporation did or did not have power or authority pursuant to the Commonwealth legislative framework within which it operates to play a part, potentially, in these proceedings or whether its powers and authority were limited in a fashion which precluded it from doing so. For reasons later explained, given that the matters I now need to determine set the bar for the Corporation's participation as a party to the proceedings at a lower, discretionary level, I am satisfied that I do not, at this point, need to determine those matters in contest (although I accept that it will be necessary to do so, in all probability, at the next substantive phase of these proceedings).

The decision in Ross v Lane Cove

It is, before turning to the detail of the decision of the Court of Appeal in Ross v Lane Cove, appropriate to note that those were proceedings, which had been at first instance, in Class 4 of this Court's jurisdiction, where Mr Ross was challenging orders of an injunctive nature requiring him to rectify certain unlawful work he had carried out on a property, a property of which he was no longer the owner.
The Court of Appeal was addressing Mr Ross's challenges to those orders on the basis that the new owner of the property had not been joined as a necessary party so that that owner was not obliged to permit Mr Ross to fulfil the mandatory obligations which had been imposed on him by this Court to rectify the breaches of planning law which he had committed.

These proceedings

The circumstances in Ross v Lane Cove were different from those here arising where Ms Lawson's proceedings are in Class 3, the class of this Court's jurisdiction where claims for compensation for the compulsory acquisition of property rights are dealt with. Although both classes of proceedings are in this Court's civil jurisdictions, the procedural and evidentiary processes are markedly different. Those which had involved Mr Ross were civil enforcement proceedings, whilst those here engaged will involve significant (and acknowledged to be) contested factual issues involving potentially detailed expert evidence of an anthropological and cultural nature.
In Ross v Lane Cove, Leeming JA was dealing with a position where the orders which this Court had made imposing obligations on Mr Ross were unable to be carried out without the acquiescence of the new owner of the property. Under those circumstances, as Leeming JA outlined, the orders made would have been ineffectual if the new owner did not cooperate with Mr Ross and, in that event, enforcement action (as had been commenced against Mr Ross) was inappropriate. That position mandated the necessity for the new owner to be joined as a party to those proceedings.
For that proposition, Leeming JA, at [57] and [58], cited the judgment of McHugh J in Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56 (Victoria v Sutton) at [77]. The portion of the paragraph quoted from that decision was in the following terms: The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. (Footnote omitted)
However, here, the circumstances are a little different. It is not certain that potential rights of some of those represented by the Corporation who have an apical ancestor listed in the 2015 native title determination, and that apical ancestor has been nominated in Ms Lawson's pleadings, have, with certainty, what might be regarded as a relevant interest for the purposes of joinder to these proceedings. Such a potential interest arising from the extinguishment of native title (if it can be demonstrated to have existed) only arises in the event that Ms Lawson is successful in these proceedings. That is, such potential interest is contingent on, and coincidental with, Ms Lawson's native title interest pleaded in these proceedings.
Whether the Corporation is potentially capable of representing any descendants of the apical ancestors nominated by Ms Lawson as being members of the Maraura People, with respect to the element of Ms Lawson's claim based on possessory title, does not, now, require determination.
What does require consideration is whether the interests of those descendants, with respect to Ms Lawson's native title extinguishment-based claim, have a sufficient potential interest to have the Corporation joined to the proceedings in order to advance or protect their interests. That position is one which involves less certainty than the position dealt with in Ross v Lane Cove. It is, therefore, appropriate to consider, with more precision, what was said by McHugh J in Victoria v Sutton relevant to consideration of joinder. The relevant paragraphs in his Honour's decision were [77] and [78]. Those paragraphs are in the following terms (footnotes omitted): 77 The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. That practice also assists in avoiding duplication of hearings on the same issues and in avoiding the spectre of inconsistent decisions by courts or the judges of the same court. In Pegang Mining Co Ltd v Choong Sam Lord Diplock, delivering the opinion of the Judicial Committee of the Privy Council, said: "In their Lordships' view one of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard ... a better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?" 78 The test for determining whether a person is a necessary party has usually arisen in the context of a person seeking to join proceedings rather than a failure to join a relevant person. But the same principle must apply in both situations. Thus, in News Ltd v ARL, the Full Federal Court of Australia held that an order "which directly affects a third person's rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside." The Full Court pointed out that O 6 r 7 of the Federal Court of Australia Rules which states that proceedings will not be defeated by a misjoinder or non joinder was "intended to give effect to the abolition of the plea of abatement". The Court said that the rule was directed "to cases where there is a curable defect, for example the misnaming of a party".
Before moving to consider the applicability of the above passage in the present circumstances, it is appropriate to note that, in John Alexander 's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19, at [131], the plurality of the High Court adopted McHugh J's reasoning.
As can be seen from [77] of McHugh J's judgment, the language used by his Honour is more permissive than the mandatory joinder circumstances which had arisen in Ross v Lane Cove. As his Honour says, joinder will be appropriate when the rights or interests of a potential party "may" be impacted rather than necessarily can be seen to be certain to be impacted.
Here, I am satisfied for the reasons earlier explained that the rights of the descendants of the other apical ancestors nominated in Ms Lawson's pleadings are potentially impacted.
I am also satisfied, on the basis of the provisions of the Regulation to which Ms Taggart took me, that the Corporation may be entitled to represent the descendants of those apical Maraura ancestors in these proceedings. In this context, I am satisfied, on the basis of her submissions, that there is a sufficient probability that this is the case so as to take the matter beyond a bare and uncertain possibility.
It is also relevant that Ms Lawson is elderly and, as can be seen from the list of proceedings earlier set out at [2], her claim has been subject of multiple judgments since it was filed with this Court in the first half of 2014. Determination of the merits of Ms Lawson's claim is clearly consistent with the overriding purpose set by s 56 of the Civil Procedure Act. To the extent (however remote it might be) that not joining the Corporation might further delay resolution of her claim, this is a factor (albeit one of minuscule weight) taken into account by me in concluding that it is appropriate to join the Corporation as a party to the proceedings.
Under all these circumstances, I am satisfied that it is appropriate to join the Corporation as the Third Respondent to the proceedings. I am also satisfied that, under the circumstances, any issue of costs arising out of the hearings on 8 and 30 September 2022 should be reserved for consideration in the context of the overall outcome of the proceedings.

Directions

In order to enable the Corporation to consider how it wishes to participate in the proceedings, and whether its joinder alters the position which it has taken concerning the contested documents sought in the subpoena issued by Ms Lawson's legal representatives requires to be revisited in some fashion, the matter is to be adjourned for a fortnight. As earlier noted, subject to timetable revision to accommodate any extension for Ms Lawson's evidence, I am satisfied that this period will not impact on the holding of the hearing dates scheduled for February 2023.
If, after consideration, the Third Respondent proposes to maintain its opposition to making the contested documents available to Ms Lawson's legal representatives for their use when the matter is mentioned before me, I will set a date shortly thereafter when the subpoena challenge can be heard.

Orders

It therefore follows that the orders of the Court are: 1. Pursuant to r 6.24(1) of the Uniform Civil Procedure Rules 2005, the Barkandji Native Title Group Aboriginal Corporation is joined as the Third Respondent to these proceedings; 2. Costs of 8 and 30 September 2022 are reserved; and 3. The proceedings are stood over for mention before Moore J on Thursday 20 October 2022 at 4.15 pm AEDST.

Amendments 07 October 2022 - Representation of the Subpoenaed Party amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 October 2022

(Cwth) Uniform Civil Procedure Rules 2005(NSW)

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