Miller v State of South Australia

1. The application of the Bunna Lawrie Respondents pursuant to s 85 of the Native Title Act 1993 (Cth) for leave to Mr Alan Oshlack to appear on their behalf is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 This judgment contains the Court's reasons for refusing a grant of leave to certain respondents to have Mr Alan Oshlack appear for them in interlocutory proceedings. 2 The Far West Coast Sea Claim (the FWC Sea Claim) is an application for the determination of native title over the sea between the South Australian-Western Australian border in the west and Streaky Bay in the east and between the low water mark and (generally) the three nautical mile limit. The claim area abuts the land which was the subject of a consent determination by this Court in Far West Coast Native Title Claim v State of South Australia (No 7) [2013] FCA 1285 (the 2013 FWC Determination). 3 The FWC Sea Claim was filed on 9 March 2016 by seven applicants who stated in the required way that they were authorised by the native title claim group to make the application. I will refer to these applicants as collectively "the Applicant". 4 The notification period for the application pursuant to s 66 of the Native Title Act 1993 (Cth) (the NT Act) expired on 18 January 2017. On 15 November 2016, Mr Michael Laing filed a notice of intention to become a party to the proceedings. He did so by his solicitor, Mr Campbell, of Campbell Law. 5 On 16 January 2017, Alan Oshlack from "Indigenous Justice Advocacy Network" filed a corresponding notice on behalf of seven persons, being Bunna Rupert Lawrie, Dorcas Miller, Robert Lawrie, Michael Laing, Rose Miller, Meegan Sparrow and Robert Miller. For convenience, I will refer to these persons as "the Bunna Lawrie respondents". As can be seen, Mr Laing was included as one of the Bunna Lawrie Respondents even though Mr Campbell had filed an earlier notice on his behalf. The notice of intention filed by the Bunna Lawrie respondents indicated that they filed the notice "on behalf of the Mirning People". 6 The effect of the filing of these notices was that these persons became parties to the FWC Sea Claim proceedings - see s 84(3) of the NT Act. 7 At the callover of the South Australian native title cases on 6 April 2017, several parties alerted the Court to the prospect of summary dismissal, strike out or removal applications. Accordingly, I ordered at that time that any such applications (and the affidavits in support of them) were to be filed and served by 1 May 2017 and that any affidavits in answer were to be filed and served by 5 June 2017. I directed that any such applications would be heard on 3 July 2017. 8 Two applications were filed on 1 May 2017 and another on 2 May 2017. The first is an application of the Applicant for an order that Michael Laing and the Bunna Lawrie respondents be removed as parties (the Removal Application). In an amended form, the application indicates that the order for removal is sought pursuant to s 84(8) of the NT Act or pursuant to r 9.08 of the Federal Court Rules 2011 (Cth) (the FCR). 9 The second interlocutory application was filed by Mr Oshlack or the Indigenous Justice Advocacy Network on behalf the Bunna Lawrie respondents. It seeks the striking out of the FWC Sea Claim pursuant to s 84C(1) of the NT Act or that it be otherwise dismissed pursuant to s 84C(4) and Order 20 r 2 of the Federal Court Rules 1979 (Cth). 10 The third interlocutory application was filed by Campbell Law on behalf of Michael Laing. This application sought the summary dismissal of the FWC Sea Claim pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) or pursuant to r 26.01(1)(a) of the FCR. In the alternative, the application sought the striking out of the FWC Sea Claim on the basis that it had not been authorised by all the persons who, according to their traditional laws and customs, hold native title in the claim area. 11 It is not necessary to consider the Michael Laing application further because, on 28 June 2017, Mr Campbell deposed that he had been instructed to withdraw the application by Michael Laing. 12 At the commencement of the hearing on 3 July 2017, Mr Oshlack applied pursuant to s 85 of the NT Act for leave to represent the Bunna Lawrie respondents. The grant of such leave was opposed by Ms Jowett who appeared with Mr Linde for the Applicant. The State of South Australia and Mr Campbell took a neutral stance on the representation application. 13 Section 85 of the NT Act provides: 85 Representation before Federal Court A party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person. 14 On its face, s 85 leaves the choice of representation in native title proceedings to each party subject to specifying that representation by a person other than a legal practitioner may occur only with the leave of the Court. 15 The principles relating to the application of s 85 have been canvassed in a number of authorities. In Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871, Lindgren J refused a grant of leave and, amongst other things, emphasised that leave to be represented by a person who is not a solicitor or barrister ought not to be granted as a matter of course. Lindgren J emphasised that the governing criterion is the interests of the administration of justice: [20] What should be clearly understood is that leave is required because it is not to be taken for granted that a person who is not a solicitor or barrister will be allowed to represent a party. Perhaps Dolly Walker thinks that leave is granted as a matter of course, just for the asking. This is not so and for good reason. Solicitors and barristers are qualified by education and training to represent parties and are subject to professional and curial disciplines and responsibilities. The requirement of leave is imposed for the reason that the Court must be satisfied that it is in the interests of the administration of justice in all the circumstances that a party be represented by a person who is not a solicitor or barrister. 16 In Adnyamathanha People (No 1) v State of South Australia [2004] FCA 950, Mansfield J endorsed this statement by Lindgren J and then continued: [10] Section 85 contemplates leave being given to a party to be represented by another person where it is in the interests of the administration of justice in all the circumstances that a party be represented by such other persons. The interests of the administration of justice involve consideration of the capacity of the proposed other person properly to represent the party seeking leave to be so represented, and the interests of the other parties in the proceedings, as well as the efficient conduct of the proceedings. It is not simply a matter of an unrepresented person asserting an inability or inadequacy to present to the Court the matters which the unrepresented party wishes to represent that gives rise to leave to be represented by some other unqualified person. The other unqualified person must have the capacity to understand the nature of the Court's processes, and to serve the interests of the party that the unqualified person is proposing to represent. It must also appear that the other unqualified person will not unduly or unfairly disadvantage the interests of other parties by an inability to understand or conduct proceedings in a sensible and effective way. That is not to say that the other person must have all the skills of a legal practitioner. But it is to say that the proposed representation must be useful, in a real sense, in the conduct of the proceedings. Mansfield J also referred to a number of cases in which the Court had refused leave under s 85. 17 In Isaacs on behalf of the Turrbal People v State of Queensland [2011] FCA 828, Reeves J reviewed a number of the authorities bearing upon the grant of leave pursuant to s 85 and analogous provisions. By reference to the decision in Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149, Reeves J identified a number of matters which have been held to be relevant to the exercise of a court's discretion in this context. These are: (a) the complexity of the case, with leave being granted more readily in those cases which are relatively straight forward and less readily in cases of some complexity; (b) the difficulties which a party who would otherwise be without representation would have in presenting his or her case; (c) the absence of any duty of a lay advocate corresponding with the overriding duty of a barrister or solicitor to the Court; (d) the unavailability of disciplinary measures to which the lay advocate will be subject (in contrast to the position of barristers and solicitors); (e) the lack of protection for the client and, for that matter, for the opponent arising from the circumstance that lay advocates are generally unqualified, unaccredited and uninsured and do not owe the same duty to the client as does a lawyer; (f) the level in the judicial hierarchy of the Court in which the party seeks to be represented by a non-lawyer, with some authorities suggesting that the higher courts should be wary about granting leave; (g) the public interest in the effective, efficient and expeditious disposal of litigation in the courts and the effect which representation by a non-lawyer may have on the achievement of that public interest. 18 It is for an applicant for a grant of leave pursuant to s 85 to show that the grant is appropriate. 19 Not only did the Applicant object to a grant of leave to Mr Oshlack to represent the Bunna Lawrie respondents in the proceeding and in relation to the hearing on 3 July 2017, they also objected to Mr Oshlack even having leave to make the s 85 application on behalf of the Bunna Lawrie respondents. Nevertheless, I granted Mr Oshlack leave to make the s 85 application and he did so. 20 Mr Oshlack relied on his own affidavit made 1 July 2017 and filed on the morning of 3 July 2017 for this purpose. He acknowledged that he is not, and has never been, a legal practitioner. Mr Oshlack deposed to being 67 years old and now living "on my pension and savings which I share with my six children and three grandchildren". He deposed to having undertaken advocacy work on behalf of Aboriginal people "including civil litigation, mediation and negotiation" over a period of 25 years but said that he had been retired from "front line advocacy work" for the last three years. He said that he now volunteers part-time in advocacy and research "sourcing appearances for clients through community legal centres, pro bono or low fee solicitor and counsel". Mr Oshlack deposes to being "a graduate in anthropology, sociology and history" and that he has a university diploma in "communications and music". He also deposed to having appeared multiple times in superior courts, including the Full Court of this Court, the New South Wales Land and Environment Court, the Supreme Court in New South Wales, Land Courts in Queensland and in a number of other tribunals. 21 Mr Oshlack explained the lateness of the s 85 application. He deposed that he had, on behalf of the Bunna Lawrie respondents, briefed a solicitor, Dr Virginia Marshall, to represent them at the hearing on 3 July 2017. However, on Monday, 26 June 2017, Dr Marshall had returned the brief. Mr Oshlack said that he could not disclose the reasons for the return of the brief because that would infringe the solicitor-client privilege. Accordingly, it is not clear to the Court whether the brief was returned as a result of a unilateral decision by Dr Marshall, by agreement, or at the instruction of Mr Oshlack or the Bunna Lawrie respondents. 22 I infer from Mr Oshlack's affidavit that no attempts were made to obtain alternative solicitors or counsel. I made that inference because it seems that, almost immediately on the return of the brief, Mr Oshlack commenced planning for an application for leave pursuant to s 85. 23 In support of the application of the grant of leave, Mr Oshlack emphasised the following matters: that he has been engaged in advocacy work for many years, particularly in areas of public interest advocacy, in courts as well as in tribunals, and in matters in which other parties were represented by counsel, including senior counsel; that he has not previously been refused leave to appear in analogous circumstances; that his capacity, capability and integrity have not previously been challenged; and that there would be a denial of natural justice to the Bunna Lawrie respondents if leave for him to appear on their behalf was refused. 24 I accept that Mr Oshlack does have experience in some contexts as an advocate and that, unlike many lay advocates, he does not come to the present proceeding without some knowledge of the ways of courts and of their procedures. Nevertheless, I considered that a number of matters (considered in combination) pointed to a refusal of leave: (a) all parties in the proceedings (and Mr Oshlack himself) regarded the issues arising on the two interlocutory applications as complex. Mr Campbell, at a later stage of the hearing, described them as "very complex"; (b) although, as indicated, I accept that Mr Oshlack has experience in appearing in courts and tribunals, he did not depose to any experience at all in appearing in proceedings for the determination of native title, let alone in interlocutory proceedings of the kind presently before the Court. There does not seem to be any reason to suppose that he has particular experience or expertise in applications of this kind. I also note that, although Mr Oshlack had foreshadowed an application to cross examine two of the Applicant's witnesses, he did not depose to any matters indicating that he has experience in cross examining. These matters raised concerns about Mr Oshlack's ability to be of assistance in the present proceedings; (c) Mr Oshlack did not depose to any particular difficulties which the Bunna Lawrie respondents would have in representing themselves. Despite that, I am willing to accept that they would have at least some difficulties in doing so. The significance of Mr Oshlack's omission to address this topic in his affidavit is that it tends to suggest a lack of awareness on his part of the need to adduce evidence of the matters relevant to the Court's consideration; (d) the Applicant raised some matters which suggested that the Court could not be confident of Mr Oshlack's awareness of the obligations for proper conduct in proceedings before a court. Counsel noted that the Form 5 notice of intention to become a respondent to the proceeding filed by the Bunna Lawrie respondents on 16 January 2017 had been signed by Mr Oshlack and submitted that he had done so in an irregular and a misleading way. Rule 34.104 of the FCR requires a person wishing to become a party to proceedings for the determination of native title to file (within the three month period mentioned in s 66(10)(c) of the NT Act) a notice in accordance with Form 5, this being the form approved by the Chief Justice for the purpose. Section 9 of the Form provides for it to be signed or executed. The notes to Section 9 contained the following instruction: Insert the signature of: (a) the legal representative (if any), or (b) each person lodging the notice (eg members of a family group), or (c) two directors of a company or a director and the company secretary (or one director, if a sole proprietor company). Note that a common seal may also be affixed, or (d) an authorised officer of an organisation (eg CEO of a local authority). In the Form 5 which he signed on behalf of the Bunna Lawrie respondents, Mr Oshlack deleted alternatives (b), (c) and (d), leaving only alternative (a). This conveyed that Mr Oshlack had thereby signed the form on behalf of the Bunna Lawrie respondents as their "legal representative" and, impliedly, as their lawyer. Plainly that was not the case. It seems that by signing the notice as "legal representative", Mr Oshlack was thereby able to avoid having each of the Bunna Lawrie respondents sign the notice as was required by the second of the alternatives in the printed Form 5. Without the alteration which Mr Oshlack made, the Form 5 of the Bunna Lawrie respondents may not have been accepted for filing. Counsel for the Applicant submitted that, by this conduct, Mr Oshlack had "misled" the Court or had at least engaged in "fast and loose behaviour". I regarded Mr Oshlack's deletion of material parts of the Form 5 as a troubling matter, especially given the potential for the alteration to mislead and the potential adverse consequences for the Bunna Lawrie respondents if the filed Form 5 is held to be ineffective by reason of the manner of its execution; (e) it also seems that Mr Oshlack has engaged in correspondence with South Australian Native Title Services (SANTS) - who are acting for the Applicant - in the manner of a solicitor acting on behalf of the Bunna Lawrie respondents. Counsel for the Applicant submitted that this conduct constituted a breach of the legislation governing those who may engage in legal practice. While that submission may have some force, it is not necessary for me to express any concluded view about it, and I refrain from doing so; (f) Mr Oshlack has continued to cause documents to be filed in the Court shown as emanating from "Indigenous Justice Advocacy Network" even after it ceased to have incorporated status on 23 March 2017; (g) I accept Mr Oshlack's submission that he has not on any previous occasion in analogous proceedings been refused leave to appear. I accept that that is a circumstance of some weight. However, as Mr Oshlack himself acknowledged, no one has previously objected to a grant of leave, so that it has not been necessary for any Court to make a ruling in circumstances like the present; (h) further, it is appropriate to take into account that there are reported instances of adverse comments about Mr Oshlack's representation. In Milne v Rally Australia Pty Ltd [2009] FCA 1101, Stone J said at [3] that it had been with "considerable reservation" that she had granted Mr Oshlack leave to appear. Later at [10], Stone J said that it had become apparent during the course of the hearing that her initial reservations about Mr Oshlack's capacity to represent the applicant had been justified. In Dates v Minister for Environment, Heritage and the Arts (No 3) [2010] FCA 354 in which Mr Oshlack appeared for the applicant, Bennett J noted at [5] that the applicant had pressed his challenge to the Minister's decision in the face of a clear finding in other proceedings indicating the futility of the challenge. In Donnelly for the Wahlabul People v Registrar of the National Native Title Tribunal [2000] FCA 1330, Hely J at [17] spoke of the applicants having only themselves "or perhaps Mr Oshlack" to blame for their non-compliance with technical requirements giving rise to the predicament in which they then found themselves. In fairness to Mr Oshlack, I observe at the same time that on one occasion the members of the Full Court remarked on the assistance which they had derived from Mr Oshlack's submissions - see Williams v Minister for Environment and Heritage [2004] FCAFC 58 at [5] and [38] - but note that Williams was not a native title proceeding; (i) counsel for the Applicant noted that some of the difficulties to which Mr Oshlack's representation had given rise in Milne upon which Stone J had remarked, concerned the quality of affidavits on which the applicant in those proceedings relied. Counsel submitted that similar difficulties are likely to arise in the present case in relation to affidavits made by Ms Dorcas Miller and Ms Meegan Sparrow on 30 June 2017. Counsel submitted that aspects of these affidavits suffered from being argumentative and conclusory in form. It is sufficient for present purposes to say that counsel's criticisms seem to have some force but I would prefer to defer expressing a final view about the affidavits until it is necessary to do so. I also note that Mr Oshlack said that he had not been responsible for the drafting of the affidavits; (j) Mr Oshlack's description of his personal circumstances suggest that he has relatively few assets, if any, to which recourse may be had, either by the Bunna Lawrie respondents or any other party in the litigation in the event that adverse costs orders are made against him. Likewise, the Indigenous Justice Advocacy Network is an unincorporated body and so cannot be regarded as providing an alternative source of protection to the Bunna Lawrie respondents or to other parties; (k) Mr Oshlack did not swear the affidavit in support of the application for leave to appear until Saturday, 1 July 2017 and it was not filed until the morning of the hearing. This seems to reflect an unawareness by Mr Oshlack of the requirements for timely filing of documents so as to avoid prejudice to other parties in the litigation and inconvenience to the Court; (l) the Far West Coast Native Title Claim which culminated in the consent determination on 5 December 2013 was marked by extensive interlocutory activity, much of it instigated by, or concerning, Mr Michael Laing and in some instances some of the present Bunna Lawrie respondents. In that interlocutory litigation, Mr Laing and the other persons had legal representation, much of which was provided by Mr Campbell. No explanation for the change of position in relation to the FWC Sea Claim has been provided. This position was made even more stark by reason of Mr Laing having retained Mr Campbell to bring his interlocutory application seeking relief of a generally similar kind to that sought by the Bunna Lawrie respondents. It was only on 28 June 2017, that Mr Laing withdrew his interlocutory application. Nevertheless, Mr Campbell appeared at the hearing on 3 July 2017 on behalf of Mr Laing to defend the removal application of the applicant insofar as it concerned him. There was no explanation, let alone evidence, of attempts by the Bunna Lawrie respondents to retain Mr Campbell following the withdrawal of Dr Marshall; (m) finally, the application for Mr Oshlack to have leave to appear was made very late. To an extent this was understandable given the return of the brief by Dr Marshall on 26 June 2017. Nevertheless, it seemed that the Court was being presented with a fait accompli. As Lindgren J observed, this is inappropriate. Parties should not expect that leave will be granted pursuant to s 85 as a matter of course. 25 The underlying consideration is, as already mentioned, the interests of the administration of justice. It is for the Bunna Lawrie respondents to show that the grant of leave which they seek is appropriate. In my view, they have not discharged that persuasive burden: in particular, they have not shown that Mr Oshlack has any particular expertise or experience in the matters now before the Court; there are aspects of Mr Oshlack's conduct in the proceedings which give rise to concern; Judges in other cases have commented adversely on Mr Oshlack's representation; and there are concerns arising from the lack of protection to the Bunna Lawrie respondents themselves and to their opponents if leave is granted to Mr Oshlack. In my assessment the interests of the administration of justice are better served by a refusal of leave. 26 I mention two further matters. After I had made the ruling refusing Mr Oshlack leave to appear, Mr Nelson, counsel for the State of South Australia, informed the Court that the State had not been served with the interlocutory application of the Bunna Lawrie respondents filed on 1 May 2017. This seems to have been a remarkable and unfortunate oversight by the Indigenous Justice Advocacy Network which had filed the interlocutory application. Although it was not a matter which I took into account in relation to the ruling, it adds to my lack of confidence in Mr Oshlack's ability to represent the Bunna Lawrie respondents properly. 27 The second matter is that counsel for the Applicant pointed out that there was no evidence before the Court confirming that Dr Marshall had been briefed. The implication in the submissions seemed to be that the Court should doubt whether Dr Marshall had in fact ever been briefed. I have declined to draw that inference. 28 These are my reasons for the ruling on 3 July 2017 refusing leave to Mr Oshlack to appear for the Bunna Lawrie respondents. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.