appellant. Leave granted under s 27 to rely on the affidavit of Tamara Simone Cole and the 2001 resolution; appeal allowed; declarations of 29 June 2018 set aside and substituted declaration made that the...
Key principles
The discretion under s 27 of the Federal Court of Australia Act 1976 (Cth) is unfettered but must be exercised judicially to ensure proceedings do not miscarry by admitting...
A resolution of the Full Council of the Northern Land Council in 2001 that expressly delegates the certification functions in relation to Indigenous Land Use Agreements under s...
The validity of such a delegation is supported by the terms of the resolution itself, including its specific identification of the statutory provisions and the deliberate...
Where the trial below has proceeded on a materially incomplete factual basis through no fault of the primary judge, and the further evidence is documentary with no credit issues,...
Issues before the court
Whether the Full Court should exercise its discretion under s 27 of the Federal Court of Australia Act 1976 (Cth) to admit further evidence of the...
Plain English Summary
The Northern Land Council successfully appealed after being allowed to introduce a previously overlooked 2001 council resolution. That resolution clearly gave the CEO power to certify the Kenbi Indigenous Land Use Agreement. The court decided it was fair to consider the new document because staff had checked all the usual files, the trial had run on an incorrect understanding of the facts, and it was in everyone's interest to fix the technical problem so the long-running land settlement could proceed. The earlier ruling that the certification was invalid was overturned and replaced with a declaration that it was valid.
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Deep Dive
2,917 words · generated 24/04/2026
What happened
The Kenbi ILUA formed part of the protracted settlement of Aboriginal land claims over the Cox Peninsula opposite Darwin. On 13 March 2017 the second appellant, the Chief Executive Officer of the Northern Land Council, signed a certificate under s 203BE(1)(b) of the Native Title Act 1993 (Cth) in support of registration of that ILUA. Two respondents commenced judicial review proceedings contending that the CEO lacked authority because the NLC had never validly delegated the certification function.
Whether the certification function under s 203BE(1)(b) of the Native Title Act 1993 (Cth) was duly delegated by the Northern Land Council to its CEO...
Cited legislation
3 cited instruments linked from this judgment.
At trial before Reeves J the NLC relied on a 1996 resolution of the Full Council and a formal instrument of delegation executed in 2000. Reeves J held that while the function was delegable, neither the 1996 resolution nor the 2000 instrument effected a delegation of the specific function in s 203BE(1)(b) ([2018] FCA 989 at [35]). Declarations were made on 29 June 2018 invalidating the certificate.
The day after those reasons were published a former NLC legal staff member contacted the organisation and referred to a further resolution passed by the Full Council on 18 October 2001. That resolution (extracted at [11] of the Full Court reasons) confirmed existing delegations and, without limiting that confirmation, expressly delegated the certification functions in relation to ILUAs under s 203BE(1)(b) to the Executive Council, Chairperson and Chief Executive Officer. An affidavit of Tamara Simone Cole, Legal Practice Manager – Native Title, explained that the resolution had not been recorded in the NLC’s delegation manual, which was the working source normally consulted by legal staff. Neither Ms Cole nor any current legal practitioner had been employed at the time the resolution was passed.
The first Full Court (Northern Land Council v Quall [2019] FCAFC 77) found it unnecessary to decide the application to adduce the 2001 resolution because it held (contrary to the primary judge) that the certification function was not delegable at all. The High Court allowed an appeal from that decision (Northern Land Council v Quall [2020] HCA 33). The plurality held that s 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) authorised delegation of the function; Nettle and Edelman JJ reached the same ultimate result on an agency analysis. The matter was remitted to the Full Court solely to determine the unresolved application for leave to adduce further evidence and, if that evidence were admitted, whether the 2001 resolution in fact effected a due delegation.
The remitted proceeding was heard on the papers. The Northern Territory intervened in support of the NLC. The respondents opposed admission of the evidence, arguing inadequate explanation for the earlier omission, prejudice, and that the resolution was not self-evidently effective. By majority (Griffiths and White JJ, Mortimer J agreeing with hesitation) the Full Court granted leave under s 27 of the Federal Court of Australia Act 1976 (Cth), allowed the appeal, set aside the primary declarations and substituted a declaration that the NLC had validly certified the Kenbi ILUA.
Why the court decided this way
The joint reasons of Griffiths and White JJ and the separate reasons of Mortimer J both begin from the proposition that the trial had been conducted on a materially false factual premise: that the only delegation instruments were the 1996 resolution and 2000 instrument. Once the 2001 resolution was located, the Court could not “shut its eyes” to the true position when performing its appellate function of correcting error (Mortimer J at [43]).
Griffiths and White JJ emphasised that the failure to locate the resolution was not the product of any conscious forensic decision. They accepted Ms Cole’s unchallenged evidence that current staff followed the “usual practice” of consulting the delegation manual and that nothing before trial signalled the need to search the electronic database of resolutions ([26]). Criticism with the benefit of hindsight was therefore unwarranted. The resolution itself was “cogent and dispositive” ([18], [28]). Had it been before Reeves J the outcome would “almost certainly have been different” because its terms “plainly do delegate the certification function” to the CEO ([28]). No separate formal instrument was required; clause 2 of the resolution operated as the delegation ([28], [56]).
Public interest considerations reinforced the decision. The Kenbi ILUA formed part of a comprehensive settlement of native title and land rights claims affecting generations of claimants and the broader community. Refusal to admit the evidence would have left an otherwise valid certification invalid by reason of an administrative oversight in record-keeping ([20], [32]). The documentary character of the resolution meant the Full Court was in as good a position as the primary judge to evaluate it; no credit issues or need for cross-examination arose ([31]).
Mortimer J expressed greater hesitation, focussing on the prejudice to the respondents. They had been deprived of the opportunity to investigate the factual matrix surrounding the 2001 meeting, including what the Full Council was told about the purpose of the resolution and whether members understood they were creating new delegations rather than merely confirming old ones ([44]-[46]). Nevertheless, the fact that the primary judgment rested on an incomplete and incorrect factual foundation outweighed that prejudice. Once the authentic minutes, agenda papers and resolution were before the Court, finality could not prevail over the appellate duty to decide according to the true facts ([43], [48]). Mortimer J independently concluded that clauses 2 and 3, read with the minutes recording Mr Levy’s explanation, demonstrated the requisite “conscious and deliberate consideration” of both the fact of delegation and the appropriate delegates ([54]). The differentiation between the classes of delegate in clauses 2 and 3 reinforced that the Full Council had turned its mind to the issue.
Both sets of reasons rejected the respondents’ characterisation of the NLC’s position as a “new argument” requiring leave to reopen below. The application was to adduce further evidence going to a live issue, not to raise an entirely fresh ground after orders had been entered ([29]). Nor was the NLC required to re-certify the ILUA; seeking to regularise the existing certificate on appeal was a legitimate and cost-effective course ([30], [56]).
Before and after state of the law
Prior to the High Court’s decision in Northern Land Council v Quall [2020] HCA 33 the law was unsettled on whether the certification function in s 203BE(1)(b) of the Native Title Act could be delegated at all. The first Full Court had held it could not. The High Court authoritatively determined that s 27(1) of the ALR Act supplied the necessary power. The remitted Full Court decision therefore operated at the intersection of that newly clarified delegation power and the long-standing principles governing further evidence on appeal.
The principles governing s 27 of the Federal Court of Australia Act were not new. They had been authoritatively stated in CDJ v VAJ [1998] HCA 67; 197 CLR 172 and applied in numerous Full Court decisions including Cottrell v Wilcox [2002] FCAFC 53 and Watson v Australian Community Pharmacy Authority [2012] FCAFC 142. The power is remedial, not constrained by common-law fresh evidence rules, and directed to preventing a miscarriage of justice. The two “normal” considerations – probable change in outcome and reasonable diligence – remain central but are not exhaustive; public interest and third-party effects may assume greater weight in appropriate cases (see [16]).
So far as delegations are concerned, the primary judge had drawn on Australian Chemical Refiners Pty Ltd v Bradwell (unreported, NSW Court of Criminal Appeal, 28 February 1986) for the proposition that a delegating body must undertake a “considered delegation” of newly acquired functions. The Full Court accepted that test but held that the 2001 resolution, on its face and read with the minutes, satisfied it. The resolution’s structure – confirmation in clause 1, express new delegations in clauses 2 and 3, and specific citation of the Native Title Act provisions – evidenced the necessary conscious consideration. Importantly, the Court held that a council resolution can itself constitute the act of delegation; no subsequent formal instrument is required ([28], [56]).
After the decision, the law is clearer in three respects. First, a representative body’s Full Council can validly delegate native title functions under s 27(1) of the ALR Act by resolution identifying the statutory provisions and the intended delegates. Second, an administrative oversight in failing to record such a resolution in an internal manual will not necessarily preclude later reliance on it if the usual search methodology was followed. Third, where an appellate court becomes aware that a trial was conducted on a fundamentally incomplete factual basis, s 27 confers ample power to receive the correcting evidence even if some forensic prejudice to the respondent results. The decision thereby reinforces the primacy of substance over technical record-keeping deficiencies in native title matters affecting public rights.
Key passages with plain-English translation
At [25] Griffiths and White JJ stated: “We find, however, that the failure to rely on the 2001 resolution at trial was not due to a conscious and deliberate decision on the part of the NLC.” In plain English, the judges accepted that the NLC’s lawyers had not made a tactical choice to hide the document; they simply did not know it existed. This finding was critical to satisfying the reasonable-diligence limb of the s 27 test.
Paragraph [28] contains the pivotal reasoning on both limbs of the case: “In our view the 2001 resolution is significant in that, if it had been adduced at trial, the outcome would almost certainly have been different. The relevant terms of the 2001 resolution are such that they plainly do delegate the certification function in relation to ILUAs under s 203BE(1)(b) to inter alia the CEO. The validity of that resolution does not depend upon there being a formal instrument of delegation.” Translation: the document would have won the case at first instance; its wording is clear enough to do the job by itself; and the law does not impose extra red-tape requirements once the council has spoken.
Mortimer J, while more troubled by prejudice, ultimately reached the same conclusion at [54]: “I accept the appellants’ submissions that the different terms employed in cl 2 as opposed to cl 3 of the resolution demonstrate there was consideration given to which staff members it would be appropriate to delegate certain functions. That does suggest, at least on the face of the document, read with the agenda papers and the Minutes, that the Board gave some ‘conscious and deliberate consideration’ to both the fact of the delegation, and the persons to whom the delegation should be made.” In plain language, the very structure of the resolution – treating ILUA certification differently from native title claim certification – proved the council had thought carefully about who should hold each power. That was enough to meet the “considered delegation” test.
At [43] Mortimer J captured the overarching appellate philosophy: “In such an unusual situation, considerations of finality must give way, because ‘finality’ which is based on facts known by all parties and the Court to be incorrect and incomplete is not a form of finality the Court should endorse.” This is a powerful statement that finality is not an absolute when the Court knows the factual foundation of the judgment under appeal was materially wrong.
What fact patterns trigger this precedent
This decision will be triggered whenever an appellate court is asked to receive further evidence under s 27 of the Federal Court of Australia Act in an administrative law or native title context and three conditions coincide. First, the new material must be documentary and self-contained (a resolution, minutes, agenda papers) so that the Full Court can assess it without needing to remit for a new trial or cross-examination. Second, the evidence must go to a central issue that was litigated on a materially incomplete factual basis at trial, such that the primary judgment can fairly be described as having “miscarried at a fundamental factual level” ([43]). Third, the explanation for non-discovery must show that the party followed its ordinary internal processes (here, consulting the delegation manual) and that nothing before trial flagged the need for a wider search.
The precedent is especially apt in representative body or local government cases where internal resolutions are passed but not perfectly recorded in working manuals. It will also apply where public or third-party interests are significant – for example, the registration of an ILUA that settles long-running claims and affects government grants, transfers of land, and the rights of native title claimants. Conversely, the decision will not assist a party that made a deliberate forensic choice to withhold material, or where the new evidence raises fresh credit issues that only a trial judge can resolve.
Because the Court accepted that an express council resolution can itself effect delegation under s 27(1) of the ALR Act, any future challenge to the authority of a representative body officer will now turn on the text and surrounding circumstances of the resolution rather than the existence or absence of a separate “instrument of delegation”.
How later courts have treated it
The judgment itself carefully positions its reasoning as an application of High Court authority. The plurality’s reasoning in Northern Land Council v Quall [2020] HCA 33 at [74] is treated as defining the exact question for remitter and is followed without qualification ([9], [35]). The principles in CDJ v VAJ [1998] HCA 67; 197 CLR 172 are applied at every step of the s 27 analysis ([16], [39]-[41]). The Court distinguished Re Culleton [2018] HCA 33; 358 ALR 678, explaining that the passage relied on by the respondents concerned an attempt to raise an entirely new ground after orders had been perfected, whereas here the NLC sought only to introduce further evidence on an issue that had always been central ([29]).
The decision therefore sits as an orthodox application of established principle to an unusual factual situation. It does not purport to change the law but to illustrate how the remedial purpose of s 27 operates when an appellate court discovers that the trial was conducted on a false factual foundation. Subsequent courts can be expected to cite the case for the propositions that (a) reasonable diligence is assessed by reference to the party’s usual practices rather than a counsel of perfection, and (b) a council resolution that expressly identifies the statutory power and the delegate can satisfy the “conscious and deliberate consideration” test without more.
Still-open questions
Several questions remain live after this decision. First, how far does the duty to search extend? The Court accepted that consulting the delegation manual constituted reasonable diligence in the circumstances, but Mortimer J noted that the respondents had pointed to the absence of any evidence that the NLC’s legal representatives had searched the electronic database of resolutions ([44]). In a future case where the manual is known to be incomplete, or where a litigant has been put on notice of possible additional resolutions, the outcome on the diligence limb might differ.
Second, precisely what level of understanding by council members is required for a “due” delegation? Mortimer J accepted that the minutes recording Mr Levy’s brief explanation were sufficient on the evidence as it stood, but acknowledged that the respondents had been deprived of the chance to explore whether members appreciated they were delegating new and extensive functions ([45]). Had there been cross-examination or additional evidence suggesting the members were unaware of the significance of clause 2, the result on the delegation issue might have changed. The decision therefore leaves open the degree of inquiry a court may make into the mental processes of a deliberative body when the resolution is facially clear.
Third, the interaction between s 27 of the ALR Act and the specific provisions of the Native Title Act continues to evolve. While the High Court settled delegability and this Full Court settled the efficacy of the 2001 resolution, questions may arise about the delegation of other representative body functions or about whether subsequent amendments to the Native Title Act require fresh council consideration.
Finally, the weight to be given to “public interest” in ILUA registration remains somewhat open-textured. The Court referred to the long history of the Cox Peninsula claims and the desirability of finalising native title outcomes, but did not articulate a general principle for when third-party prejudice will outweigh finality. Future cases will need to calibrate that balance on their own facts.
Gotchas
Most practitioners assume that once a trial judge has published reasons the evidentiary record is closed. This case demonstrates that s 27 is more flexible than many realise: where the new material corrects a fundamental factual error that infected the entire trial, and the explanation for its late discovery is credible, the Full Court may admit it even over vigorous claims of prejudice. Another “gotcha” is the delegation manual trap. Organisations that treat their internal manual as the single source of truth do so at their peril; a council resolution that never made it into the manual can still be decisive years later. Finally, many lawyers read a resolution that “confirms” earlier delegations and assume it adds nothing new. Clause 1 of the 2001 resolution looked like mere ratification, yet the Court held that clause 2’s “without limiting the generality” language created an independent and effective fresh delegation. Always read the whole instrument, not the preamble. These nuances justify close attention to the precise wording of resolutions and to the factual matrix in which they were passed – exactly the forensic inquiry the respondents were denied once the evidence was admitted on appeal.
Judgment (10 paragraphs)
[1]
The appellants have leave under s 27 of the Federal Court of Australia Act 1976 (Cth) to rely on further evidence, being the affidavit dated 26 September 2018 by Tamara Simone Cole, together with its annexures which include a copy of resolutions passed by the Full Council of the Northern Land Council on 18 October 2001.
The appeal be allowed.
The declarations dated 29 June 2018 in proceedings NTD 45 of 2017 and NTD 54 of 2017 be set aside and in lieu thereof the following declaration be made:
THE COURT DECLARES THAT:
The Northern Land Council has, by a certificate dated 13 March 2017 signed by its chief executive officer, certified for the purposes of s 24CG(3)(a) of the Native Title Act 1993 (Cth) and in performance of its functions as a representative body under s 203BE(1)(b) of that Act, an application for registration of the Indigenous Land Use Agreement dated 21 July 2016, as amended by a deed of variation dated 2 February 2017, known as the Kenbi ILUA.
There be no further order as to costs.
.Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[2]
Introduction
1 The principal issue is whether the Court should in its discretion under s 27 of the Federal Court of Australia Act 1976 (Cth) (FCA Act) admit further evidence in hearing an appeal from the judgment of Reeves J in Quall v Northern Land Council [2018] FCA 989 dated 29 June 2018. The further evidence which is sought to be relied upon by the appellants comprises a resolution dated 18 October 2001 (2001 resolution) of the Northern Land Council (NLC) and an affidavit by NLC's instructing solicitor affirmed on 26 September 2018, which explains the discovery of the 2001 resolution after the primary judge published his reasons for judgment and made orders below.
2 It is desirable to explain how this issue now arises for determination notwithstanding that the Full Court published reasons for judgment in respect of the appeal and cross-appeal from the primary judge's judgment (see Northern Land Council v Quall [2019] FCAFC 77 - Quall Full Court).
3 The respondents in the appeal brought a judicial review challenge to a decision dated 13 March 2017 by the NLC which purported to certify an application for registration of an Indigenous Land Use Agreement dated 21 July 2016 (as amended), which related to areas of land and waters within the area for which the NLC is the representative Aboriginal/Torres Strait Islander body. The ILUA, which relates to an area of land on the Cox Peninsula opposite Darwin, is referred to as the "Kenbi ILUA". It forms part of the settlement of protracted and complex claims under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act).
4 At the trial, the respondents challenged the delegation to the CEO of power to certify the Kenbi ILUA. The argument had two limbs. The first was whether the function of certification in s 203BE(1)(b) of the Native Title Act 1993 (Cth) (NT Act) was delegable. The second was whether a resolution of the NLC dated 1 October 1996 (1996 resolution) was effective to delegate the exercise of the function in respect of the Kenbi ILUA.
5 The primary judge held:
(1) the exercise of the certification function in s 203BE(1)(b) was capable of delegation by the NLC to the CEO; and
(2) the 1996 resolution (and the formal instrument of delegation later made in 2000 pursuant to that resolution) was not effective to delegate the function.
6 After the primary judge published his reasons for judgment, a former member of the legal staff of the NLC contacted the NLC and told them that there was a further resolution of delegation made by the Full Council of the NLC on 18 October 2001 (2001 resolution). It is the 2001 resolution and the affidavit affirmed on 26 September 2018 explaining its discovery which are the subject of the application for leave to introduce further evidence on the appeal.
7 In the events that occurred, the Full Court previously found that it was unnecessary to determine the application for leave to introduce further evidence. This was because it was held in Quall Full Court that the certification function under s 201BE(1)(b) of the NT Act was not delegable. Accordingly, the cross-appeal was upheld and the appeal was dismissed.
8 An appeal to the High Court was allowed (see Northern Land Council v Quall [2020] HCA 33). The plurality (Kiefel CJ, Gageler and Keane JJ) held that the power of delegation under s 27(1) of the ALR Act was available to the NLC to delegate the certification function to the CEO (it might be noted that this argument was not raised in Quall Full Court). Justices Nettle and Edelman also allowed the appeal placing no reliance on s 27 of the ALR Act, but on the basis that the NLC could perform its certification function through agents (it might be noted that in Quall Full Court at [52] Griffiths and White JJ expressly stated that the appellants did not rely upon agency).
9 The High Court made orders remitting to the Full Court the unresolved appeal and the unresolved application for leave to adduce further evidence. The plurality confirmed at [74] that the "issue remaining for determination in the remitted appeal is whether the certification function conferred on the NLC as a representative body by s 203BE(1)(b) of the NT Act was in fact duly delegated by the NLC to the CEO under s 27(1) of the ALR Act".
10 It is convenient to address the application for leave to adduce further evidence because, on one view, it is dispositive of the appeal.
[3]
(i) The further evidence identified
11 The terms of the 2001 resolution (C81/1671 dated 18 October 2001) were relevantly as follows (without alteration save for the emphasis added at cl 2(ii)):
ITEM : Delegation of Powers under Native Titles Act
It is resolved that:
1. To avoid legal doubt, the delegations of Full Council currently in force (hereinafter "the current delegations") under the Native Title Act 1993 are confirmed as being, and having been, in force under the Act in relation to functions and powers for native title representative bodies contained in ss. 203B to 203BK and s.203D .which came into force on 1 July 2000.
2. Without limiting the generality of resolution 1, the following functions and powers are delegated to the Executive Council, Chairperson and Chief Executive Officer:
(i) facilitation and assistance functions under s.203BB and 203BD;
(ii) certification functions in relation to Indigenous Land Use Agreements under s.203BE(l)(b);
(iii) dispute resolution functions under s.203BF;
(iv) notification functions under s.203BG;
(v) agreement making functions under s.203BH;
(vi) internal review functions under s.203BI;
(vii) other functions under s.203BJ.
3. Without limiting the generality of resolution 1, the certification functions in relation to native title applications under s.203BE(l)(a) are delegated to the:
(i) Executive Council;
(ii) Chairperson;
(iii) Chief Executive Officer;
(iv) Anthropology Branch Manager (including persons acting position);
(v) Principal Legal Officer (including persons acting in this position).
…
Date of Resolution: 18 October 2001
…
12 The evidence in support of the application to adduce further evidence included an affidavit dated 26 September 2018 by Ms Tamara Cole, who is the Legal Practice Manager - Native Title of the NLC. She deposed how she was contacted by a former NLC staff member (Mr Ron Levy) the day after Reeves J published his reasons for judgment. She deposed that Mr Levy told her that the NLC's NT Act delegation was updated after the NT Act had been amended in 1998, but that the NLC's delegation manual had not been updated to reflect the changed delegation.
13 Ms Cole caused a search to be made of the NLC's electronic database which located the 2001 resolution.
14 Ms Cole said that neither she nor any other current NLC lawyer was employed by the NLC when the 2001 resolution was passed and that she was unaware of it before Mr Levy contacted her. She explained that although she had checked the NLC's delegation manual prior to the trial below, that merely revealed the 1996 delegation and the March 2000 instrument. The delegation manual is a folder which is meant to collect all formal delegations and like instruments and it is the usual working source used by staff in the NLC's Legal Department.
[4]
(ii) Section 27 of the FCA Act and relevant legal principles
15 Section 27 of the FCA Act provides:
27 Evidence on appeal
In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:
(a) on affidavit; or
(b) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or
(c) by oral examination before the Court or a Judge; or
(d) otherwise in accordance with section 46.
16 The parties were in substantial agreement as to the relevant principles which guide the exercise of the Court's discretion under s 27. Drawing on authorities including CDJ v VAJ [1998] HCA 67; 197 CLR 172; Cottrell v Wilcox [2002] FCAFC 53; Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389; Watson Australian Community Pharmacy Authority [2012] FCAFC 142; 206 FCR 365 and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3, they may be summarised as follows:
(1) The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle.
(2) The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry.
(3) The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of "fresh evidence".
(4) The following two considerations will normally be relevant to the exercise of the discretion:
(i) the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and
(ii) the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence;
(5) The interests of third parties and the public at large may outweigh a party's interest in the finality of litigation. For example, a greater willingness to receive further evidence on appeal has been apparent in bankruptcy matters which affect the interests of creditors generally.
[5]
(iii) The submissions of the parties and the intervener summarised
17 In brief, the appellants made the following submissions in support of the Court granting leave to admit the further evidence. First, they contended that the further evidence is directly relevant to the central question in issue and admitting the evidence would contribute to ensuring that all matters in controversy between the parties could be completely and finally determined without further proceedings.
18 Secondly, the appellants described the further evidence as "cogent and dispositive of the question in issue".
19 Thirdly, they submitted that the outcome of a trial would have been different if the evidence had been available then.
20 Fourthly, as to why the further evidence was not discovered before trial, the appellants submitted that:
(1) no forensic decision or deliberate choice was the cause of the evidence not having been adduced before the trial;
(2) the reason why the evidence was not adduced at trial was not due to inadvertence of NLC staff because the failure to record the 2001 resolution in NLC's delegation manual was presumably due to an administrative oversight and the existence of the 2001 resolution only came to the attention of current NLC staff when Ms Cole was contacted by Mr Levy after Reeves J's reasons for judgment were published;
(3) the terms of the 2001 resolution speak for themselves and the Court is able to evaluate that evidence for itself and without the need for a retrial;
(4) the evidence should be admitted in the public interest so as to ensure that the rights of third parties (namely parties to the Kenbi ILUA) are not adversely affected by an administrative error as a result of which an otherwise valid certification has been found to be invalid. The NLC submitted that the rights and interests of generations of native title claimants and of the public (represented by the Northern Territory and other government agencies affected by the Kenbi ILUA) were relevant; and
(5) it is in the public interest to admit the evidence as it would enable the National Native Title Tribunal to carry out the necessary steps towards registration of the Kenbi ILUA.
21 The Northern Territory (as intervener) broadly supported the appellants' application to have the further evidence admitted. It emphasised that the further evidence is cogent and would have produced a different result if it had been led at trial. It also submitted that the Full Court was in as good a position as the primary judge to receive and evaluate the 2001 resolution.
22 The Northern Territory placed particular reliance on the claim that the rights of third parties, and the interests of the public at large, would be adversely affected if the further evidence was not admitted. It traced the long history of land rights issues concerning the Cox Peninsula. It described the purpose of the Kenbi ILUA as to ensure that, if native title rights and interests exist over the Cox Peninsula, the grants and transfers of interests will be valid future acts for the purposes of the NT Act. In this context, it was important that the ILUA be registered on the National Native Title Register.
23 The respondents strongly opposed the application. In brief, their submissions were as follows.
(1) The appellants have provided no explanation for the failure of their legal representatives to have searched the NLC's electronic database of resolutions prior to trial, other than to refer to "usual practice".
(2) Even if the existence of the 2001 resolution was not known to the NLC's legal staff, it should be assumed that it was known to the NLC itself.
(3) The NLC knew of the relevant inadequacies of its delegation manual well before trial.
(4) The further evidence suffered from the following deficiencies:
(i) no instrument of delegation was provided, in contrast to the evidence at trial in respect of the 1996 resolution as referred to by Reeves J at [12]; and
(ii) it contains an erroneous entry which indicated that action to amend the NLC delegation manual to include reference to a delegation made on 18 October 2001 was completed on 30 October 2001.
(5) No evidence was provided by the NLC which was capable of meeting the burden identified by Reeves J at [35], namely to establish that the NLC "had undertaken a considered delegation of its newly acquired certification function".
(6) The appellants could have, but did not, either apply for leave to re-open the trial before Reeves J or proceed to re-certify the Kenbi ILUA relying upon the 2001 resolution. Instead, they seek to adduce further evidence with a view to inviting the Full Court to make a finding of fact on an issue which was never part of the trial and which would deprive the respondents of the opportunity to investigate or challenge the validity or legal effect of the 2001 resolution.
(7) Having regard to these and other matters, the respondents disputed that admission of the further evidence would be of benefit to the public interest.
[6]
Consideration and determination
24 It is most regrettable that a central issue in the trial before Reeves J was conducted on a false basis, namely that the 1996 resolution (and related formal instrument of delegation made in 2000 under that resolution) was the source of the CEO's power to exercise the certification function in s 203BE(1)(b) of the NT Act.
25 We find, however, that the failure to rely on the 2001 resolution at trial was not due to a conscious and deliberate decision on the part of the NLC. We accept Ms Cole's evidence that no relevant agent or officer of the NLC involved in the conduct of the trial was aware of the existence of the 2001 resolution at the time of the trial. It may confidently be assumed that if there was such an awareness the 2001 resolution would have been relied upon. The evidence is unclear as to whether anyone else associated with the NLC had actual knowledge of the existence of the 2001 resolution at the time of trial.
26 With the benefit of hindsight some criticism might be levelled at the NLC's legal representatives for not searching the electronic database of NLC resolutions prior to the trial. But this was not the usual practice and, at the relevant time, there was nothing to indicate that such a search ought to have occurred. We accept Ms Cole's evidence that the usual practice was for NLC staff to check the NLC delegation manual. The deficiencies of that manual are now apparent, but the evidence is unclear as to the extent to which those deficiencies were known to relevant NLC staff prior to the trial.
27 We are not satisfied on the evidence that the NLC staff or representatives who were responsible for the conduct of the trial acted unreasonably in not doing more than they did to locate any other resolution bearing upon the certification function.
28 In our view the 2001 resolution is significant in that, if it had been adduced at trial, the outcome would almost certainly have been different. The relevant terms of the 2001 resolution are such that they plainly do delegate the certification function in relation to ILUAs under s 203BE(1)(b) to inter alia the CEO. The validity of that resolution does not depend upon there being a formal instrument of delegation. Nor is there any substance in the respondents' criticisms of the wording of the resolution which focus on cl 1 and the reference to the "confirmation" of delegations which were currently in force. The terms of cl 2 made clear that without limiting the generality of cl 1, the specified functions are delegated to inter alia the CEO.
29 We do not accept the respondents' contention that the appellants are raising a new argument on appeal and that they therefore ought to have sought leave from Reeves J to reopen the case. The passage from Re Culleton [2018] HCA 33; 358 ALR 678 at [6] per Kiefel CJ relied upon by the respondents addresses different conduct, namely where a party makes an application to raise an entirely new ground after Court orders have been entered. In contrast, here the appellants seek leave to adduce further evidence going to a principal issue in the proceeding, namely whether the certification functions had been validly delegated to the CEO.
30 Moreover, we reject the respondents' contention that the appellants should have proceeded to recertify the Kenbi ILUA relying upon the 2001 resolution. It was not unreasonable for the appellants to adopt the course which they have, namely seeking leave from the Full Court on the appeal to adduce the further evidence so as to establish that there was a valid and effective source of power for the CEO to certify the Kenbi ILUA.
31 Finally, there are additional reasons why it is in the interests of justice to admit the further evidence. Given the documentary character of the 2001 resolution, the Full Court is in as good a position as the trial Judge to receive and assess that evidence. No issue of credit arises, nor have the respondents sought to cross-examine any witness.
32 Adducing the further evidence will also dispose of the appeal because, for reasons given above, the 2001 resolution should be viewed as valid and effective in delegating the certification functions to, inter alia, the CEO. In their supplementary submissions dated 30 November 2020, the respondents acknowledge that the instrument of delegation (i.e. the 2001 resolution) is, in its terms, supported by the power of delegation under s 27 of the ALR Act. There are no third party or broader public interest reasons which weigh against exercising the discretion under s 27 favourably to the appellants.
[7]
Conclusion
33 For these reasons, the appellants should have leave to rely upon the further evidence. Save for the order below as to costs, the declarations dated 29 June 2018 should be set aside and in lieu thereof a declaration should be made in the terms requested by the appellants in [10(e)] of their Contentions filed on 29 January 2019. The parties were agreed that there should be no further order as to costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Griffiths and White.
[8]
MORTIMER J:
34 I have had the advantage of reading the reasons of Griffiths and White JJ, which set out the background to the orders the appellants seek the Court make on the remitted appeal. I gratefully adopt their Honours' description of the background, and of the relevant provisions, and I agree in the orders and declarations they propose.
35 On remitter, the sole issue remaining for this Court is, as the majority in Northern Land Council v Quall [2020] HCA 33 said at [74]
whether the certification function conferred on the NLC as a representative body by s 203BE(1)(b) of the NT Act was in fact duly delegated by the NLC to the CEO under s 27(1) of the ALR Act.
36 The only method by which the appellants seek to have the Court answer this question is by relying on the new evidence they seek to adduce though the affidavit of Tamara Cole, the Legal Practice Manager - Native Title of the Northern Land Council at the time the s 27 application was made, in particular the evidence of what I shall call the 2001 NLC Resolution.
37 If the Court grants leave under s 27 of the Federal Court of Australia Act 1976 (Cth) for that evidence to be adduced, its factual determination on the appeal will rest on whether that document, read with the other evidence adduced by Ms Cole (such as the agenda papers and the Minutes for the 2001 NLC Board meeting) proves the NLC "duly delegated" its certification function under s 203BE(1)(b) of the Native Title Act 1993 (Cth) to the CEO of the NLC.
[9]
Leave under s 27 should be granted
38 Not without some hesitation, I accept the Court's discretion under s 27 of the Federal Court Act should be exercised in favour of the appellants.
39 In CJD v VAJ [1998] HCA 67; 197 CLR 172 at [103], in explaining the context of the exercise of powers such as that contained in s 27 of the Federal Court Act, the majority said:
In contrast, the statutory appeal is directed to whether the orders made below should be set aside and, if so, what orders should be made in their place to determine the outcome of the litigation.
40 And at [109]:
Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.
41 Balanced against this are the kinds of considerations set out in the authorities to which Griffiths and White JJ refer in their Honours' reasons at [16]. The relevance of, and weight to be given to, of all these factors will depend on the facts in existence in each situation where the Court is asked to consider the exercise of power under s 27.
42 In the present circumstance, two matters are prominent.
43 First, this Court now knows that the primary judge's consideration of the evidence about delegation proceeded on a mistaken and incorrect basis; namely that the 1996 instrument of delegation was the operative delegation decision by the NLC Board at the time the CEO certified the Kenbi ILUA in March 2017. In light of the majority's findings in Quall HCA concerning the scope of s 27 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), and the undisputed authenticity of each of the 2001 resolution, the Board agenda papers and the Minutes of the Board meeting at which the resolution was made, for this Court's appellate task to be properly performed, it cannot shut its eyes to the fact that the primary judge's consideration miscarried at a fundamental factual level, through no fault of his Honour's, and no fault of the present respondents. In such an unusual situation, considerations of finality must give way, because 'finality' which is based on facts known by all parties and the Court to be incorrect and incomplete is not a form of finality the Court should endorse.
44 Second, and tending in the other direction, is the prejudice to the respondents. As they have submitted if the evidence is admitted they are deprived of the opportunity to make out an evidentiary case about any alleged flaws in what occurred at the 2001 NLC Board meeting. Or, as counsel put it in oral argument on the appeal:
We don't know why they drafted it in the way they did. And the point I'm trying to make is that yes, your Honours might be able to receive the evidence, but it raises - the point we're trying to make is it raises questions about what does it actually mean, and how is it to apply in this situation, and was - in terms of the delegations that are talked about as being currently in force, does that mean that the instrument of delegation, that the CEO said - or when I say said, it was advanced in the court below, but it was - the certification was done pursuant to that instrument. Does that mean that that's the instrument that's being talked about as currently being in force?
We don't know because there's no evidence of what are the delegations that are being talked about in paragraph number 1. And the point I'm simply trying to make, your Honours, is this. I've been so long with it. I apologise. It is not as straightforward as saying this resolution confirms that the CEO was delegated the function of the certification powers, including the power to form the opinion required for the purposes of the Act. And I'm sorry I've been so long-winded about it, but that's the point I'm seeking to make. It's simply not as clear as it could be. And there's one other minor point that although it's said that - and your Honour Justice Mortimer picked up on this point that there's - doesn't appear to be any evidence that the minutes themselves were confirmed as correct.
45 It was certainly the case that the appellants had positively identified to both the respondents and the primary judge a direct link between the CEO's certification and the 1996 resolution: see [9] of the primary judge's reasons. The evidence otherwise does not explain how the Board understood what it was endorsing in the 2001 NLC resolution, and whether (for example) it was ratifying the earlier 1996 delegation (pursuant to cl 1) or, pursuant to clause 2, making a new one.
46 Some of the factual points made on behalf of the respondents during the appeal as matters which may have been addressed at trial might not have been strong, as some of the exchanges during oral argument exposed. Nevertheless, if the evidence is admitted, the respondents are deprived of their ordinary forensic opportunity to persuade a trial court that on the facts, there was no "due" delegation, and that the members of the NLC Board may not (on the respondents' contention) have understood what they were being asked to do by the proposed resolution, which on the appellants' case was to delegate new and extensive functions under the Native Title Act to a number of individuals within the NLC. The extent of that prejudice is significant and indeed fatal to the respondents' contentions on the appeal, because as I explain below, on their face, and read with the agenda papers and the Minutes of the 2001 Board meeting, the appellants should be found to have discharged their burden of proving that the Board's 2001 resolutions effect a "due" delegation.
47 In my opinion, the characterisation of the searches performed by the NLC legal staff is not the determining factor. The respondents did not impugn Ms Cole's evidence at a credibility level. Nor was it suggested there was a basis to apprehend the NLC had been concealing evidence. A mistake was made, which was identified promptly by Mr Levy's communication after publication of the trial judge's orders and reasons. Ms Cole's evidence should be accepted: she and other NLC staff adopted methods they had been instructed were the appropriate ones. In hindsight it is easy to criticise the choices made, but on the evidence that would be an unfair criticism. I find reasonable diligence was exercised by the NLC staff in the circumstances - not perfect diligence, but reasonable diligence. However, the two factors I have discussed above should be given more weight.
48 The difficulty is those factors pull in different directions. As I have stated, not without hesitation I consider the correct exercise of the Court's discretion in this circumstance is to grant leave to the appellants to rely on the new evidence. Despite the clear prejudice to the respondents, the determinative factor in my mind is that now that the true factual situation has been exposed, and the existence of the 2001 resolution proven, the Court's appellate task (the correction of error) would miscarry if it were to shut its eyes to the existence of that subsequent resolution and decide the appeal on what it knows is the incorrect and incomplete factual basis as it existed before the primary judge.
[10]
Was there a due delegation of the certification function?
49 At the outset, it is my view that the correct understanding of the 2001 resolutions is to see cl 1 as going to previous delegations of existing powers held by the NLC, and cll 2 and 3 as going to the "new" powers and functions conferred on the NLC as a representative body, by the 1998 amendments to the Native Title Act. Whether or not the 1996 resolution could fall within the terms of cl 1 is not the principal point. On their face, cll 2 and 3 are express delegations of these new powers and functions to specified individuals within the NLC, including the CEO. A majority of the High Court has held in Quall HCA that such delegations are within the scope of the power conferred by s 27 of the Aboriginal Land Rights Act.
50 Should the express terms of cll 2 and 3 be seen as "due delegations" of those functions? The appellants' submission is that this Court is in as good a position as the primary judge to determine that factual question because the terms of the 2001 resolution speak for themselves.
51 The difficulty with this submission lies in the absence of any evidence, outside what is recorded in the Minutes annexed to Ms Cole's affidavit, of what the NLC Board was told about the purpose of this resolution, before it was agreed to. This is the point made by the respondents in their written and oral submissions.
52 All the Minutes record is a three line summary of remarks made by Mr Levy:
Ron Levy: Explained about the powers of the NLC and being members of the Land Council you have powers. There are always legal documents to be signed by members, Executive, CEO and Chairperson. There has been some minor changes with this delegation.
53 The forensic exercise of challenging, and investigating, what the Board members really understood was occurring by the terms of cll 2 and 3 of the 2001 resolution, is the one which the grant of leave to rely on fresh evidence precludes the respondents from undertaking. Therefore, this Court must assess the evidence as it stands. As the evidence stands, I consider the findings I have made at [54] and [55] below are the appropriate ones.
54 I accept the appellants' submissions that the different terms employed in cl 2 as opposed to cl 3 of the resolution demonstrate there was consideration given to which staff members it would be appropriate to delegate certain functions. That does suggest, at least on the face of the document, read with the agenda papers and the Minutes, that the Board gave some "conscious and deliberate consideration" to both the fact of the delegation, and the persons to whom the delegation should be made: see Australian Chemical Refiners Pty Ltd v Bradwell (unreported, New South Wales Court of Criminal Appeal, 28 February 1986, as quoted by the primary judge at [33] of his Honour's reasons). It is also the case that the terms of the cll 2 and 3 themselves spell out the relevant provisions of the Native Title Act, and the functions conferred by each of those provisions. For the Board to have passed a resolution in these terms, I find it is more likely than not that the members of the Board understood which functions were being delegated to, amongst others, the CEO of the NLC.
55 I also accept that the extract at [52] above, especially the second sentence, tends to prove that the Board was asked to, and by the passing of the resolution did, consider the delegation of these powers was convenient, even if not necessary. That is sufficient.
56 I respectfully agree with Griffiths and White JJ (at [28]) that the validity of the 2001 resolution does not depend upon there being any formal instrument of delegation. I also respectfully agree with Griffiths and White JJ (at [29] and [30]) that the respondents are incorrect to characterise the appellants' approach as raising a new argument for the first time on appeal, and that the respondents are incorrect to suggest the appropriate course was for the NLC to re-certify the Kenbi ILUA. The approach taken by the appellants was one open to them, and was possibly the most cost effective.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mortimer.
Leave granted under s 27 to rely on the affidavit of Tamara Simone Cole and the 2001 resolution; appeal allowed; declarations of 29 June 2018 set aside and substituted declaration made that the Northern Land Council validly certified the Kenbi ILUA; no further order as to costs.