Torres Strait Regional Authority v Akiba on Behalf of the Torres Strait Regional Sea Claim

1. The application for leave to appeal filed 23 January 2018 be dismissed.
2. Any respondent to the application that wishes to seek costs may file and serve a proposed costs order and brief written submissions in support within 14 days of the date of these orders.
3. If any respondent seeks costs under order 2, the applicant may file and serve brief written submissions in reply within a further 14 days thereafter. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 These reasons for judgment explain why the application for leave to appeal by the Torres Strait Regional Authority (the TSRA) against orders made on 19 December 2017 should be dismissed. 2 I propose to be brief as I consider the lack of merit of the application for leave to be manifest. Indeed, given that the supposed injustice to the TSRA if leave is not granted is said to be increased cost to it, I would go so far as to say that the manifest lack of merit of the leave application was such as to suggest that it should never have been made as, in truth, nothing was more certain to increase the costs to all than the TSRA seeking leave to challenge interlocutory procedural orders of the kind concerned. It is for this reason that I have reserved the capacity for the respondents to seek costs of the application, should they so choose. 3 The orders under challenge were made consequential on reasons for judgment published on the same day, Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2017] FCA 1560. I do not propose to refer to those reasons in detail. They provide a comprehensive explanation of why the primary judge made the orders as part of a process of ongoing case management to try to ensure that issues of authorisation (or lack of authorisation, to be accurate) are able to be appropriately, even if now belatedly, resolved. 4 The orders under challenge are: 1. Each of the steps and conduct set out in these orders is to be undertaken by the applicant and Mr Ned David, Mr Maluwap Nona and Ms Garagu Kanai, in consultation and working jointly with each other. … 4. The method of notification and all logistical arrangements required, including any necessary advice from counsel, particularly for those claim group members not located in the Torres Strait or Cairns who wish to attend, be agreed between the applicant and Mr David, Mr Nona and Ms Kanai by 15 February 2018. 5. The authorisation process as a whole be permitted to include the use of social media, as agreed between the applicant and Mr David, Mr Nona and Ms Kanai. … 7. Any concerns by any active party in relation to the agreed process be raised with the legal representatives of the applicant and Mr David, Mr Nona and Ms Kanai by 22 February 2018. 8. Any revisions required to the agreed process be made by the applicant, Mr David, Mr Nona and Ms Kanai by 1 March 2018. 5 These orders pre-supposed certain earlier orders made on 21 November 2017, pursuant to s 84(5) of the Native Title Act 1993 (Cth) (the NTA), that Mr Ned David, Mr Maluwap Nona and Ms Garagu Kania be joined as respondents to the proceeding. The joinder order is not subject to challenge and, given the terms of s 24(1AA)(b)(i) of the Federal Court of Australia Act 1976 (Cth) (the Court Act), the order for joinder is not amenable to appeal. This is one reason why the application for leave to appeal should be refused (but there are others). It is apparent that the challenge to the orders of 19 December 2017 involves a collateral attack on the orders for joinder when s 24(1AA)(b)(i) of the Court Act precludes a direct attack. 6 This context also assists in exposing why the TSRA's contention that leave should be granted as the challenged orders are subject to sufficient doubt to warrant their reconsideration and the TSRA would suffer substantial injustice assuming those orders to have been wrongly made should be rejected. 7 Taking the substantial injustice limb of the test for leave to appeal first, the TSRA proposes that the orders of the primary judge will mean that the cost of the necessary process to authorise a replacement applicant under s 66B of the NTA will be higher than if the challenged orders had not been made. The evidence to support this is the statutory requirement in s 203DB of the NTA that the TSRA, as a representative body, "must do all things necessary to ensure that payments out of the money of the body are correctly made and properly authorised" and a statement by Dr O'Brien, the TSRA's principal legal officer, that complying with the orders will "result in a higher usage of funds available to the TSRA" than if the steps were taken without having to comply with the orders (against a general estimate that a s 66B application will cost in excess of $500,000 to complete). This statement is made against the background of a request that the TSRA fund independent lawyers for the respondents joined by the 21 November 2017 orders. 8 I am unable to accept that the additional costs to which the TSRA may be exposed as a result of the orders can constitute substantial injustice supposing the orders were not properly made. The short reason for this is that the primary judge who made the orders must have known that the TSRA was the likely source of funds for legal representation of the respondents joined by the 21 November 2017 orders. Exposure to those costs is not an injustice to the TSRA if the orders are wrong. The exposure is the inevitable result of the primary judge having carefully weighed all of the relevant circumstances before making the challenged orders, as her reasons for judgment disclose. It must also follow that the TSRA would be properly expending funds under s 203DB of the NTA if the expenditure is to ensure that the primary judge's orders could be implemented. Putting it another way, it was for the primary judge to strike the relevant discretionary balance. The TSRA's submissions do not suggest any error in the discretionary exercise. The alleged error is confined to a suggested lack of power to make the orders because they (according to the TSRA at least) involve joinder of respondents for the purpose of representing the native title claim group when a native title claimant can only do so by the making of an application under s 13(1) of the NTA that complies with s 61 of that Act. Given this, the potential consequence to the TSRA of having to spend money to assist the joinder respondents for the purpose of the s 66B application cannot be any kind of injustice sufficient for the purpose of the grant of leave to appeal. 9 Apart from this, Dr O'Brien noted that there are other views about the Part B sea claim apart from those of the TSRA and the respondents joined by the 21 November 2017 orders. This may be accepted. But it does not involve any injustice arising from the challenged orders. 10 The conclusion of a lack of substantial injustice if the orders were wrongly made is supported by the fact that the TSRA was represented before the primary judge on 18 December 2017 and did not object to the orders proposed to be made (which included the orders subject to challenge). Further, as the State of Queensland submitted, the orders under challenge are procedural and the primary judge can vary or vacate the orders if evidence is adduced indicating why that might be appropriate. 11 I am also not satisfied that the power to make the orders is attended by any real doubt. The TSRA's case rests on the notion that the challenged orders involve the respondents joined by the 21 November 2017 orders in a representative capacity for the native title claim group. In my view this involves a misconception by the TSRA. The 19 December 2017 orders facilitate an authorisation process relating to the constitution of the applicant under s 66B of the NTA. Further, as the primary judge noted in Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2017] FCA 1438 at [31] and during the case management hearing, once the "necessary and inevitable" s 66B application was made (a fact not in dispute) then it is "unlikely to remain in the interests of the administration of justice for those three individuals to stay as respondents". 12 Otherwise, I adopt the submissions for the State of Queensland as follows: First, the "steps and conduct" that are the subject matter of the December 2017 orders are not directed to the prosecution of the substantive proceeding: they are directed to the holding of an authorisation meeting for the sole purpose of enabling the claim group, as a whole, to decide upon and authorise a new Applicant. Secondly, neither the December 2017 orders, nor indeed the November 2017 orders, presuppose what the outcome of an authorisation meeting will be. That is, no aspect of any order made by the primary judge presumes, or even anticipates, that the Indigenous respondents will be the persons who are authorised by the claim group to constitute the new Applicant. Thirdly, the bringing of an application pursuant to s 66B of the Native Title Act 1993 (Cth) (NTA), and, necessarily, the conduct of an anterior process of authorisation, 16 are not matters ascribed by the NTA as falling within the sole purview of the Applicant (indeed, in some of the circumstances contemplated by s 66B(1)(a), it would be impossible for the "current" Applicant to be involved in either of those things). It is open to any member or members of a claim group to bring an application under s 66B(l) for the purpose of seeking to be appointed as a replacement Applicant. As such, it simply cannot be said, as the TSRA seems to do, that the steps prescribed by the December 2017 orders require the Indigenous respondents "to act as a representative to assert native title rights on behalf of other people"… Fourthly, the TSRA's reliance on the decisions of Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [[2011] FCA 942.], Bonner on behalf of the Jagera People #2 v State of Queensland [[2011] FCA 321.] and Munn v Queensland [[2002] FCA 486] is misplaced…Those decisions deal with the scenario where a member of a competing Aboriginal group seeks to be joined as a respondent to an existing native title determination application. It may be accepted that, in cases of that kind, an indigenous respondent cannot seek a determination of native title in their favour without making their own application under s 13(l) of the NTA and cannot act in a representative capacity on behalf of others claiming the same rights. But none of those issues intersect with the facts of this case. … 13 These submissions are a cogent and compelling explanation why the sole ground of asserted error by the primary judge is misconceived. 14 Apart from this, it is relevant that the current applicant, Mr Akiba, does not challenge the orders or support the leave to appeal application. He wishes the TSRA to get on with things and facilitate the appointment of an applicant to replace him. To this must be added the (disturbing) fact that the primary judge considered the TSRA alone to be responsible for the unacceptable delay in the appointment of a replacement applicant for Mr Akiba. Indeed, it is apparent that the primary judge only made the orders under challenge because the TSRA had conducted itself in a manner which saw the proceeding virtually grind to a halt when it ought to have been resolved by a consent determination. 15 The fact that this unmeritorious leave application has involved further cost and delay tends to undermine the TSRA's asserted concern of substantial injustice based on increased costs. Whatever the reason for the TSRA's conduct (and it was "unfathomable" to the primary judge after multiple case management conferences extending over days), applications for leave such as this need to be strongly discouraged. The orders resulted from the exercise of discretion. They involve procedural steps to facilitate a necessary replacement of Mr Akiba as the applicant. Even if, as seems to have occurred, the TSRA decided to change its position after the orders were made, to seek leave to appeal about orders of this nature based on the flimsy grounds identified is productive of delay and yet further increased costs including for the TSRA itself. 16 For these reasons, the application for leave to appeal must be dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.