NSW Aboriginal Land Council v Minister Administering the Crown Lands Act

Land and Environment Court (NSW)|2007-11-12|Before: Jagot J, Preston J

CITATION : NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 751

APPLICANT PARTIES : NSW Aboriginal Land Council RESPONDENT Minister Administering the Crown Lands Act

KEY ISSUES: Aboriginal :- land claim - evidentiary question - issue of certificates - vacation of hearing dates - costs

Birrigan Gargle Aboriginal Land Council v Minister Administering the Crowns Lands Act [1999] NSWLEC 123; Colgate-Palmolive Company v Cussons Pty Limited [1993] 46 FCR 225; CASES CITED: Great Lakes Council v Lani [2007] NSWLEC 681; InterTAN Inc v DSE (Holdings) Pty Limited [2005] FCAFC 54; Rosniak v Government Insurance Office (1997) 41 NSWLR 608

APPLICANT J E Griffiths SC with J E Lazarus SOLICITORS LEGAL REPRESENTATIVES: Chalk & Fitzgerald RESPONDENT M Leeming SC with C Lenehan SOLICITORS Crown Solicitors Office

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

NEW SOUTH WALES ABORIGINAL LAND COUNCIL Applicant

MINISTER ADMINISTERING THE CROWN LANDS ACT Respondent

JUDGMENT Jagot J: 1 The Minister sought to tender two certificates in these proceedings under s 36(8) of the Aboriginal Land Rights Act 1983. The applicant objected to the tender on discretionary grounds and also reserved its right, if its discretionary argument did not succeed, to challenge the validity of those certificates.

2 This issue first arose by a notice of motion filed by the applicant on 2 November 2007. The notice of motion came before the Chief Judge of the Court, Preston J, who adjourned the notice of motion for final resolution until today, being the first day of the substantive hearing of the proceedings.

3 Both parties agreed that we should first deal with the question of the admissibility of the certificates, having regard to the discretionary arguments for exclusion relied upon by the applicant.

4 The events leading up to today's application are not in dispute. They are accurately summarised in the affidavit of Mr Jason Behrendt, sworn on 5 November 2007, in particular paragraphs 4 through to 44. I do not propose to repeat the factual circumstances because, as I have said, they are essentially wholly accepted by the Minister.

5 Against this factual background the applicant submitted that the Court should reject the tender of the certificates on grounds which I have summarised as follows: (a) The Minister has taken some 15 years to determine the applicant's claim for the land. (b) The Minister was granted three extensions of time in the Court to file and serve the evidence on which the Minister wished to rely under an extended timetable, having regard to the fact that the appeal was initially filed in the Court on 30 June 2006. (c) Correspondence from the Minister in answer to a request for information under s 36(14) of the Act demonstrates that the Minister was in fact considering the issue of certificates as at 16 July 2007 when the matter came before the Chief Judge of this Court, and as a consequence of which directions were made and the matter fixed for hearing. Despite that, the Minister did not inform either the Court or the applicant to this effect. (d) From at least 27 October 2006, which was the date on which the directions for the filing of the Minister's evidence were first made, until 22 August 2007 everyone involved in the proceedings, including the Court, had proceeded on the basis that the matter would be dealt with by substantive resolution of the applicant's appeal on its merits. Such a resolution was the only course consistent with the Minister's conduct. (e) The certificates had been filed and sought to be relied upon by the Minister six months after the expiry of the extended timetable for the Minister to file and serve all of his evidence. (f) There has been no explanation by the Minister for the extraordinary delay. (g) The belated reliance on the certificates causes prejudice to the applicant, both substantive and procedural, which is not adequately compensated by costs order. (h) As there is inadequate time for the applicant to consider a challenge to the validity of the certificates the inevitable consequence is that if the applicant's argument does not succeed on discretionary grounds, the hearing must then be vacated. The overall consequence will be to further delay resolution of the applicant's claim first lodged in 1990. (i) The Court must have power to control its own process to avoid injustice, whether that be by reference to provisions of the Land and Environment Court Act 1979, such as s 22 and s 38, or by reference to the Court's inherent powers. (j) It is true that the Minister's power in s 36(8) is a part of the statutory scheme, but it is still subject to the Court's supervisory jurisdiction.

6 The Minister submitted that the focus of the Court's consideration must be the question of prejudice. In short, is there such incurable prejudice that the exercise of power under s 36(8) should be stultified as that would be the effect of excluding the certificates on the discretionary grounds relied upon by the applicant. The Minister described the applicant as seeking to elevate procedural directions of the Court to the level of stultifying the exercise of a statutory power. Specifically the Minister made the following submissions: (a) Substantive prejudice, that is the effect of the certificates under the statute if admitted into evidence, cannot be a relevant form of prejudice. (b) The Minister accepted that the applicant should have a fair opportunity to consider whether to challenge the validity of the certificates. Given that acceptance, the issue of challenge to validity does not itself weigh in the balance of the discretionary considerations. (c) Given the applicant's position that it is not able to proceed with any challenge of validity today, the answer is to adjourn the hearing for as short a time as possible. For his part the Minister would do what was in his power to facilitate that issue being resolved as quickly as could be expected. (d) With respect to the allegation of unexplained delay, first, inordinate delay in determining the claim cannot be material to the present question. Secondly, the Minister had foreshadowed the possibility of certificates being issued before the appeal commenced. Thirdly, this was not a case where the Minister had ever stated that certificates would not be issued. Fourthly, both parties were aware of the prospect of certificates being issued from 22 August 2007 onwards. As the Minister accepted Mr Behrendt's description of events, there was no warrant for any affidavit on behalf of the Minister. (e) Section 36 of the Act does not involve the exercise of discretion. Consistent with that scheme s 36(8) is expressed in mandatory language to the effect that a certificate of the relevant description "shall be accepted as final and conclusive evidence of the matters set out in the certificate". (f) Accordingly, unless it can be said that the Minister's conduct in these proceedings disentitled the Minister from exercising the statutory power then the applicant's submissions on discretionary grounds should be rejected. The Minister accepted that the Court had inherent jurisdiction to control its own processes but said they were not enlivened in this case on the particular facts. To the extent that the applicant's submissions seemed to assume that the Minister believed he was blameless for the situation in which we all find ourselves today, the Minister emphasised that was not the case.

7 I think two matters should be made clear at the outset. First (and insofar as the Minister's written submissions might be understood to have said so) I do not accept that the mandatory language of s 36(8) deprives the Court of capacity to reject the tender of the certificates other than on the ground of invalidity. Section 36(8) operates if and when a certificate is admitted into evidence. The section does not deprive the Court of its capacity to control its own processes to ensure fairness and avoid injustice. I did not ultimately understand the Minister's position to be to the contrary of this proposition.

8 Secondly (and again only insofar as it might have been in question in these proceedings) it is also clear that as part of its inherent jurisdiction, and otherwise pursuant to the Land and Environment Act 1979 and associated rules, the Court may make directions requiring parties to file and serve all evidence by a particular date, which evidence may include certificates under s 36(8) of the Aboriginal Land Rights Act.

9 Neither of these observations, however, resolves the current dispute concerning the consequences of the Minister's conduct for the admissibility of the certificates. Having considered the written submissions and the affidavit of Mr Behrendt there cannot be any real doubt that the Minister's conduct has resulted in the current situation (namely, if the applicant fails in its application to exclude the certificates in the exercise of the Court's discretion, this hearing must be vacated and rescheduled for some later time). The consequence will be a waste of two hearing days in circumstances where: - (i) the parties have filed and served all other evidence, (ii) the parties are in attendance and ready for the matter to be heard, (iii) other parties have been denied the availability of these hearing dates, and (iv) the Court itself has made special arrangements for the availability of an Acting Commissioner to assist in the hearing of the appeal.

10 It must be recognised that the Minister's conduct has had serious and entirely avoidable consequences for the management of the Court's processes. When I refer to the Minister's conduct I do not mean the simple fact of the issue of the certificate. As the Minister submitted, s 36(8) is a part of the statutory scheme and it does not limit the time during which the power may be exercised. What I mean by the Minister's conduct is that the Minister was considering issuing certificates on 16 July 2007 when the matter came before the Chief Judge but did not see fit to inform the Court or the applicant to that effect. In consequence all of the steps taken and the expense incurred thereafter, both by the applicant and by the Court, were on the basis of a false premise where but one person and one person alone could correct the record and make the true position clear, namely the Minister. The Minister informed the applicant of the true position on 22 August 2007 but then left it to the applicant to inform the Court of the true position by the notice of motion filed on 2 November 2007. The failure by the Minister to inform the Court and the applicant of the true position on 16 July 2007, and thereafter the Court on or about 22 August 2007, was a serious oversight and one which has given rise to the situation today.

11 It seems to me that it is no answer to say it was not clear one way or another whether the Minister would or would not issue a certificate. What was required was obvious. On 16 July 2007 the Minister needed to inform the Court and the applicant that the Minister was considering issuing certificates. Appropriate procedural arrangements could then have been made to ensure that any exercise of power would not unnecessarily undermine the orderly processes of the Court and give rise to situations such as today.

12 What then is to be done? It is clear that the certificates under s 36(8) (if admitted) would be central to the resolution of the proceedings. Indeed, so central that if valid and admitted the certificates effectively and inevitably resolve an appeal against an applicant. The fact that the statute so provides cannot be a relevant form of prejudice. That is a consequence of the statutory provisions. The focus must instead be upon weighing up the competing aspects of the interests of justice having regard to the facts of the particular case.

13 On the one hand the Minister has not discharged his duty to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in such proceedings as provided for in P 1 r 5A of the Land and Environment Court Rules. To have done so the Minister would needed to have informed the Court on 16 July 2007 of the true position with respect to the prospect or possibility of the issue of certificates so that, as I have said, appropriate arrangements could have been put in place as part and parcel of the Court's directions. However, that was not done. In consequence, the applicant has had insufficient time to consider any challenge to the validity of the certificates so that if the hearing date is not vacated the applicant would be prejudiced. On the other hand, the statue does not limit the time at which the Minister may issue a certificate and makes a certificate, if issued, final and conclusive evidence of the very issue the Court must resolve in the proceedings. The certificates in other words, if issued and admitted, are at the very heart of the proceedings.

14 The capacity to vacate the hearing and make costs orders will not wholly mitigate the relevant classes of the applicant's prejudice. Nevertheless, any remaining prejudice must be weighed against the central importance of the certificates to the resolution of this appeal. Although the Minister's defaults have given rise to the present situation they are not such as to: - (i) stultify the exercise of the power in accordance with the Minister's submission, or (ii) to deprive the Court of the capacity to vacate the hearing and make costs orders, if appropriate, such as to warrant exclusion of the certificates on a discretionary basis in accordance with the applicant's submission. Weighing up these considerations it follows in my view that the applicant's initial challenge to admissibility on discretionary grounds cannot be accepted. The result is I would be minded to allow the certificates to be tendered in the proceedings. [ Discussion re vacating dates and timetable for hearing date and costs ]

15 There are two remaining questions. One is the hearing date, but we have discussed that, and it cannot be taken further at the moment. The other is the issue of costs.

16 For its part the applicant sought an order for costs thrown away by reason of the vacation of the hearing dates on an indemnity basis. In its written submissions the applicant referred to the Court's broad discretion in s 69(2) of the Land and Environment Court Act which must be exercised judicially. The applicant also referred to Pt 16, r 4(2) of the Court's rules. When enacted the rule did not apply to appeals under s 36 of the Aboriginal Land Rights Act, the costs position being that described in Birrigan Gargle Aboriginal Land Council v Minister Administering the Crowns Lands Act [1999] NSWLEC 123 at [54.] The applicant's submissions also referred to the substantial amendments to Pt 16 r 4 on 5 April of this year, the effect of which is to bring proceedings under s 36 of within the rubric of that rule. The applicant noted various decisions which it says makes clear that the application of the rule does not deprive the Court of the power to make orders for indemnity costs if the circumstances warrant it.

17 Those circumstances were summarised in terms of principle in two of the decisions referred to by the applicant, namely InterTAN Inc v DSE (Holdings) Pty Limited [2005] FCAFC 54, in particular the observations relating to circumstances where there has been "some relevant delinquency" or where there are some special or unusual features in a case to justify the Court exercising its discretion so as to make an award of indemnity costs. The applicant also referred to Great Lakes Council v Lani [2007] NSWLEC 681 at [29] to [30], where the Chief Judge, Preston J, summarised the principles relating to indemnity costs, namely, that such an order would not be made except where there is some special or unusual circumstance, citing Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited [1993] 46 FCR 225 as well as Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616: …the discretion to depart from the usual "party and party" basis for costs is not confined to the situation of what Gummow J described as the "ethically or morally delinquent party"… Nevertheless the court requires some evidence of unreasonable conduct, albeit that it need not rise as high as vexation. This is because party and party costs remain the norm, although it is common knowledge that they provide an inadequate indemnity.

18 The Minister accepted at the mention before the Chief Judge that if the hearing dates were vacated there should be an order that the Minister pay the applicant's costs thrown away on an ordinary basis. The Minister opposed an order for indemnity costs. There has been no suggestion that the Minister's failure to inform the Court of the true position on 16 July 2007 was deliberate. It was an error of judgment not to inform the Court to that effect. It can be characterised as a serious error of judgment but nevertheless it was inadvertent. In the absence of a finding of any form of deliberate conduct on the Minister's part, and in circumstances where the Minister's approach is apparently consistent with the applicant's approach to certificates in at least one other matter, there should be no indemnity costs order.

19 I have said in the principal decision that the Minister's conduct has led to today's situation, in particular the fact that the Minister did not inform the Court that he was considering the prospect of issuing certificates at the mention on 16 July 2007. I agree with Mr Leeming SC that this was an error of judgment and a serious one, but I also accept on the evidence that it was inadvertent and based on what I can only characterise as a misunderstanding of the interaction between the provisions of the Act and the fact that the Court must be in a position to control the appeal process. The applicant has suffered prejudice by reason of the vacation of the hearing dates. Accordingly there should be a costs order in its favour as the Minister has acknowledged. It does not seem to me, however, that in all of the circumstances of this matter there should be an order for indemnity costs. I do not think the circumstances rise that high for the reasons Mr Leeming has advanced. [ Discussion as to form of costs order including costs of motion ]

20 Accordingly, I make the following orders: (1) The hearing dates of 12 and 13 November 2007 are vacated. (2) The respondent is to pay the applicant's costs thrown away by reason of the vacation of the hearing dates, including the costs of the applicant's notice of motion filed 2 November 2007, as agreed or assessed. ****************************

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Cases Cited (4)