New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act

Scope of remitter

1. The Minister argues that strictly speaking no leave to raise any legal argument on issue 1 during the remitted hearing is necessary as "any outstanding issue" is broad and includes the reasoning of issue 1 in light of the changed law in Limbri (CA). The outstanding issue arises because since Nelson Bay (No 1) the Court of Appeal handed down its decision in Limbri (CA) and the reasoning in Nelson Bay (No 1) on issue 1 is potentially overruled by Limbri (CA). The new issue therefore falls within the terms of the remittal order made by the Court of Appeal. The issue is presently outstanding in the Minister's view. The approach of the Court should be as if the Court has heard argument and reserved judgment. The matter remains at large as the Court's orders have been set aside, relying on Basten JA (Beazley and Young JJA concurring) in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 (Walker (CA)) at [92].

Conclusion on remitter

1. For the reasons given by the Land Council the remittal order is directed to the outstanding issues 4 and 5, as is clear from the context of the Court of Appeal judgment at [7]. Contrary to the Minister's submission that the Court of Appeal order is possibly ambiguous and leaves scope for his argument that "any" means "any" issue which the Minister considers should be raised subsequently to the appeal, the order is clearly meant to refer to issues 4 and 5. These were the only issues outstanding at the time of the Court of Appeal's decision in relation to the application filed in November 2010. The remittal order is limited and does not provide scope for a wider exercise of the Court's discretion to allow in additional issues not otherwise raised before the Court of Appeal.
2. Walker (CA) was relied on by the Minister but that judgment was considering a remittal order of a whole matter as provided for under ss (a) of s 57(2) in circumstances where an application to rely on new evidence was made to the trial judge. That judgment emphasises the particular remittal order made in relation to a particular case must be closely considered. The paragraphs from the judgment of Basten JA at [81]-[83] identify that important factor. The conclusion about the scope of the remitter in that case at [92] is directed to the context of the remittal order made in that case, which is unlike the facts of this case.
3. Reliance on Peacock v Repatriation Commission (2007) FCAFC 156; (2007) 161 FCR 256 at [6], [17]-[18] and Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 122 ALD 448 at [42] does not assist the Minister. Those cases concerned a remitter from an administrative tribunal, which makes decisions of a different nature to this Court. The parties, particularly the Minister, determine the issues to be heard by the Court under the Aboriginal Land Rights Act 1983 (NSW). That is relevant to the context in which the limited remittal order was made in this case and suggests that the limited remittal order should be so regarded.

Leave to reopen

1. Alternatively, the Minister seeks leave to reopen his case. The parties agree I have power to do so. The Minister submits such a course is open to a trial judge on remitter within the broad discretion of the trial judge, citing Walker (CA) at [39], [81]-[83] as supporting leave to reopen. The applicable principle is for the Court to consider how the changed circumstances since Limbri (CA) suggest it should proceed to reach a just result, Walker (CA) at [115]-[117]. There is no prejudice given that no new evidence need be adduced and the matter is simply one of legal argument. Doing so ensures that there is no legal embarrassment for the court.

Conclusion on leave to reopen

1. I agree with the Land Council that while the Court does have discretion to reopen in the manner contended for by the Minister that discretion should be used sparingly in the interests of finality of litigation and only where exceptional circumstances are established per Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684. The High Court decision of Burrell v The Queen [2008] HCA 34; 238 CLR 218 referred to by both parties at [18]-[19] is particularly instructive. The Minister emphasised based on Walker that the position the Court should consider itself to be in is where a judgment is reserved. However, the context of this case is a limited remittal order from the Court of Appeal. The absence of final orders does not alter the fact that issue 1 was fully argued before me and was not the subject of appeal which could have been implemented after delivery of Limbri (CA) some two months before the hearing of the appeal in this matter. I adopt par 39 of the Land Council's submissions to the effect that the Court should avoid putting itself in the position of hearing what amounts to an appeal against his or her own decision, citing Rix LJ in Compagnie Noga D'Importation et D'Exporatation SA v Abacha [2001] 3 All E R 513; (2001) 151 N L J 693 at [47].
2. I consider there is prejudice to the Land Council as it is at risk of rearguing a matter that has been determined, circumstances analogous to those in McCarthy v McIntyre [2000] FCA 1250 at [30]-[33] in the context of leave to rely on fresh evidence after delivery of judgment. That judgment emphasised that the Minister as the party seeking leave must make a case for the exercise of discretion in its favour. I consider such a case has not been made out.
3. While the parties ventured some views on whether in fact Limbri (CA) provided any basis for revisiting my decision on issue 1 in this matter it is unnecessary that I consider these submissions in the exercise of my discretion.
4. In conclusion, the terms of the remitter limit what remains to be determined. The Minister's Notice of Motion is dismissed.

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