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[2000] FCA 10
Federal Court of Australia
2000-01-11
Nicholson J, French J
Original judgment source is linked above.
Introduction 1 On 4 November 1999, orders were made in these proceedings in the following terms: "1. The decision of the First Respondent not to accept the claim in the combined Maduwongga native title determination application WG76 of 1997 for registration be set aside. 2. The First Respondent is directed to accept the claim in the combined Maduwongga native title determination application WG76 of 1997 for registration and to include details of the claim in the Register of Native Title Claims. 3. There be liberty to the parties to apply within ten days for any necessary ancillary orders. 4. There be liberty to apply within ten days by written submission on the question of costs." Submissions have subsequently been made on the question of ancillary orders and costs pursuant to the liberty reserved in pars 3 and 4 of the orders made on 4 November.
Ancillary Orders 2 The applicants contend that, having regard to the decision given on 4 November, the action of the Native Title Registrar in removing from the Register details of the native title determination applications now comprising the combined application is void and of no effect. They say that a declaration to that effect would be appropriate. The Registrar, they contend, should exercise his statutory duty under s 190(3) of the Native Title Act 1993 (Cth)to amend the Register to reflect the amendment made by the order of Nicholson J in which the present application was combined. It is submitted that "a more appropriate form of Order 1" would be a declaratory order in the following terms: "The act of the First Respondent removing from the Register the native title applications now comprising the combined Maduwongga native title determination application WG76 of 1997 is void and of no effect." 3 It was further contended that it would now be appropriate that the Registrar exercise his statutory duty under s 190(3) to amend the Register to reflect the amendments ordered by the Court, including the combining of the claims. It was conceded however, that it was not necessary that he be given any further direction by the Court in that regard. If that were thought to be necessary it was suggested that an order might be made in the following form: "The First Respondent is directed to amend the Register to reflect the combination and amendments ordered by this Court on 17 February 1999 in respect of the claims now comprising Maduwongga native title determination application WG76 of 1997." 4 The applicants' submissions were not clearly expressed and their objective did not emerge with clarity although presumably the declaration suggested was intended to ensure that the correction of the Register flowing from the decision of 4 November would take effect from the day that the Registrar's delegate wrongly declined to include details of the combined application in the Register, namely 8 June 1999. 5 The State has addressed the question of the date from which any correction should be effected. It has submitted that the Court cannot order the Native Title Registrar to accept the claim retrospectively rather than prospectively. The Court's power to make a retrospective order, it is said, does not extend to empower it to direct a third party to do an act with retrospective effect. By analogy it is noted that s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) specifically allows for backdating of orders quashing or setting aside a decision, but a similar power is not conferred with respect to other orders the Court may make, particularly an order directing parties to do or refrain from doing an act (s 16(1)(d)). The Register, is a public register containing information about claims in native title determination applications. The information contained in the Register includes the date upon which details of a claim are entered on it. It is submitted that that date cannot be fixed or altered by the application of a retrospective order. The State, however, accepts that the order to set aside the decision not to accept a claim for registration can be made retrospectively. This does not mean, however, it is said, that such an order has the effect of reviving the registration of the three pre-combination applications. 6 It is necessary to look to the provisions of the Act in issue and their operation in respect of the applications in this case. The three pre-combination applications had been lodged with the Native Title Registrar under the Native Title Act as it stood prior to the 1998 amendments ("the Old Act"). The applications, details of which were entered in the Register of Native Title Claims, and the dates of their entries are as follows: "Maduwongga Number 1 (WC93/98) - 8 September 1995 Maduwongga Number 2 (WC95/11) - 8 September 1995 Maduwongga Number 3 (WC98/20) - 8 April 1998" Maduwongga Number 1 was referred to the Federal Court under s 74 of the Old Act on 27 May 1998 and given the file number WG63/98. Maduwongga Number 2 was referred on 8 July 1997 and given the file number WG76/97. Maduwongga Number 3 became a proceeding in the Court with effect from 30 September 1998 by virtue of the transitional provisions of the Native Title Amendment Act 1998 (Cth). 7 On 3 July 1998, the two proceedings already in the Federal Court, Maduwongga No. 1 (WG63/98) and Maduwongga No 2 (WG76/97) were consolidated by order of Carr J. Combination was not available under the Old Act and the consolidation order was made under the provisions of the Federal Court Rules. That order was revoked on 17 February 1999 and in lieu thereof it was ordered that Maduwongga No 2 (WG76/1997) be amended so that it was henceforth combined with and included the applications WG63/1998 and WG6237/1998. The application WG76/1997 was, in effect, the lead application it being treated as the application which was amended by the combination order. 8 Pursuant to s 64(4), a copy of the amended application, WG76/1997, was given to the Native Title Registrar by the District Registrar of the Federal Court. The Native Title Registrar was then required, by virtue of s 190A(1) to consider the claim made in the application and decide whether or not to accept it for registration. A note to s 190A(1), which appears in the official print of the Native Title Act, is directed specifically to the case of an amended application and states: "In the case of an amended application (under subsection 64(4)), the Registrar would be required to consider the claim in the amended application even if the Registrar had already accepted for registration the claim in the original application. In such a case, if the claim in the amended application were then accepted for registration, the Registrar would be required under subsection 190(3) to amend the Native Title Register to reflect the amendment." Presumably the reference to the "Native Title Register" in the note is intended to be a reference to the Register of Native Title Claims. After considering the claim the Registrar is required to act under s 190(3), which provides: "190(3) If the Registrar is given a copy of an amended application under subsection 64(4) that contains a claim or amends a claim, the Registrar must, as soon as practicable: (a) if the claim is accepted for registration under section 190A - amend the Register to reflect the amendment; or (b) if the claim is not accepted for registration under section 190A - amend the Register to remove any entry relating to the claim." In this case, the Registrar, having decided not to accept the amended claim WG 76/1997 for registration, presumably removed any entry relating to that claim from the Register. That does not specifically address the fate of the entries relating to the other pre-combination applications but on the basis that such entries may be said to relate to the amended claim, then presumably the Registrar would have removed them as well. In the event, the effect of the decision of 4 November 1999 upon review of the Registrar's decision not to accept the claim, is that that decision was to be set aside and the Registrar was directed to accept the claim for registration. 9 The orders made did not specify the date from which the claim is to be taken as having been accepted. The application for an order of review of the Native Title Registrar's decision did not expressly set out the particular head of jurisdiction which it invoked, although it appeared to rely both on the statutory review process under s 190D of the Act and also the Administrative Decisions (Judicial Review) Act and s 39B of the Judiciary Act 1903 (Cth). For all practical purposes, however, it proceeded as an application for review under s 190D. 10 The powers of the Court on an application for review under s 190D are not spelt out beyond the statement in s 190D(3) that: "The Court has jurisdiction to hear and determine an application made to it under subsection (2)." There is somewhat more specificity in relation to subs 190D(4) which deals with the case in which the Registrar has declined to accept a claim for registration because the physical connection condition in s 190B(7) has not been satisfied. In that event and subject to the fulfilment of certain other conditions, it is provided under subs 190D(4) that the Court may order the Registrar to accept the claim for registration. 11 In my opinion, s 190B of the Act does not authorise the Court to direct the Registrar to make an entry in the Native Title Register which is, in effect, backdated to 8 June 1999. It is questionable whether such an order could be made under the Administrative Decisions (Judicial Review) Act or otherwise. But that is a question which need not be resolved for present purposes. The setting aside of the decision does reinstate previously existing entries in the Register of Native Title Claims relating to the pre-combination applications. The setting aside of the decision should therefore be implemented by the Registrar deleting any entry made at or about 8 June 1999 which purported to remove details of the claims contained in the pre-combination applications, or any of them. It is a consequence that right to negotiate protection will have been maintained in respect of the pre-combination applications up to the point at which the Registrar complies with the direction to include details of the amended claim in application WG76/1997 on the Register of Native Title Claims. I will make a consequential direction accordingly.
Costs 12 On the issue of costs, the applicants maintain that the State was successful in its application to be joined as a contending party which the applicants had opposed. The State therefore had a case for seeking costs from the applicants in respect of that application. In relation to the interpretation of the provision on which the Registrar's decision had turned, the State proffered an interpretation which was not adopted by the Court although it would have arrived at the same outcome as that which the Court arrived. Given that neither side advanced the construction of s 190C upon which the decision turned, it was submitted by the applicants that there was no case to be made for an order for costs arising out of that contention. The applicants did, however, argue that they were entitled to costs in respect of the State's contentions as to registration on grounds other than those on which the Registrar's decision turned. The issues raised by the State were argued on the papers and no additional evidentiary material was required to deal with them. They were important and legitimate issues affecting the construction of the conditions for registration of claims. In my opinion, having regard to the balance of outcomes, both on the question of the joinder of the State and the primary argument relating to s 190C and the provisions of s 85A of the Native Title Act, it is appropriate that there be no order as to costs on either side. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.
Counsel for the Applicant: Mr G M G McIntyre
Solicitor for the Applicant: Corser & Corser
Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Solicitor for the Second Respondent: Ms C J Thatcher
Date of Judgment: 11 January 2000
Strickland
Native Title Registrar