Ah-Chee v Stuart

Case [2019] FCAFC 165

FEDERAL COURT OF AUSTRALIA

Ah-Chee v Stuart [2019] FCAFC 165

Appeal from: Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) [2019] FCA 1282
File number: SAD 185 of 2019
Judges: REEVES, GRIFFITHS AND CHARLESWORTH JJ
Date of judgment: 18 September 2019
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory judgment of primary judge in which orders were made, based on cultural and customary concerns of claimant groups, in relation to the evidence in proceedings for the determination of overlapping claims of native title – insufficient doubt in correctness of the orders and supporting reasons of the primary judge to warrant leave to appeal being granted – no arguable House v The King (1936) 55 CLR 499 error identified – no question of general principle identified to warrant appellate intervention on a matter of practice or procedure – leave to appeal refused.
Legislation:

Evidence Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 17, 37AE, 37AF, 37AG

Native Title Act 1993 (Cth) s 82

Federal Court Rules 2011 (Cth)

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. [1981] HCA 39; 148 CLR 170

Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111

Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; 242 FCR 153

Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651

House v The King [1936] HCA 40; 55 CLR 499

In re the Will of F.B. Gilbert (dec.) (1946) SR (NSW) 318

Jango v Northern Territory of Australia [2003] FCA 1230

Lake Torrens Overlap Proceedings (No 3) [2016] FCA 899

Northern Territory of Australia v Mr A Griffiths (Deceased) (No 2) [2019] HCA 19; 93 ALJR 803

Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36

Stuart v State of South Australia (Oodnadatta Common Overlap Proceeding) [2019] FCA 1282

Western Australia v Fazeldean (No 2) [2013] FCAFC 58; 211 FCR 150

Western Australia v Ward [1997] FCA 585; 76 FCR 492

Glanville Williams, Salmond on Jurisprudence, (Sweet and Maxwell, 10th ed, 1947)
Date of hearing: 18 September 2019
Registry: New South Wales
Division: General Division
National Practice Area: Native Title
Category: Catchwords
Number of paragraphs: 39
Date of hearing: 18 September 2019
Counsel for the Applicants: T Jowett and C Gregory
Solicitor for the Applicants: South Australian Native Title Services Limited
Counsel for the First Respondent: A Collett
Solicitor for the First Respondent: Camatta Lempens Pty Ltd Lawyers
Counsel for the Second Respondent: T N Golding and W V Ambrose
Solicitor for the Second Respondent: Crown Solicitor’s Office for the State of South Australia
Counsel for the remaining Respondents: The remaining Respondents did not appear
Table of Corrections
2 October 2019 In paragraph 11 the word “justice” has been replaced with “injustice”.

ORDERS

SAD 185 of 2019
BETWEEN:

DEAN AH-CHEE (and others named in the Schedule)
(Walka Wani…

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AGLC
Ah-Chee v Stuart [2019] FCAFC 165
Case
[2019] FCAFC 165
Decision Date

CaseChat Overview and Summary

In the case of Ah-Chee v Stuart, the Walka Wani applicants sought leave to appeal against the interlocutory judgment of the primary judge in a proceeding concerning the determination of native title over the Oodnadatta Common. The primary judge had made orders regarding the handling of male gender restricted evidence, which the Walka Wani applicants sought to appeal. The key issue before the court was whether there was sufficient doubt in the correctness of the primary judge's orders to warrant leave to appeal being granted. The court had to consider whether the appeal had prospects of success and whether the primary judge's decision contained any arguable error.

The court held that none of the proposed grounds of appeal had sufficient prospects to warrant leave being granted. The court found that the primary judge had carefully considered the cultural and customary concerns of both the Walka Wani and Arabana applicants and had struck an appropriate balance in exercising his judicial discretion. The court noted that leave is less often granted where the impugned ruling is discretionary and is on a matter of practice or procedure, and that appellate intervention in such matters requires particular caution. The court also found that no arguable appealable error had been identified in the primary judge's judgment.

The court refused leave to appeal and made no order as to costs. The primary judge's orders regarding the handling of male gender restricted evidence will stand, and the parties are urged to continue discussing means by which the cultural and customary concerns of both applicant groups can be mutually accommodated.

Orders

Orders of the court

1. Leave to appeal is refused.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the following reasons, leave to appeal will be refused. Summary of background There is a comprehensive summary of the background to the proceeding in the primary judge’s reasons for judgment at [4]-[24], which we gratefully adopt. In brief:(a)The overlapping claims for determination of native title over the Oodnadatta Common are brought by the Arabana People and the Walka Wani People respectively. The competing claims for determination of native title cover a wider area than the Oodnadatta Common. They are being heard together to the extent that there is an overlap in relation to the particular area which comprises the Oodnadatta Common.(b)By an amended interlocutory application, the Walka Wani applicants (whose claims for determination of native title are in proceedings SAD78/2013 and SAD220/2018) sought orders for the taking into account of particular cultural and customary concerns relating to both male gender restricted evidence and female gender restricted evidence. The Arabana People (whose claim for determination of native title is in proceeding SAD38/2013) have not sought any counterpart orders. (c)The primary judge considered that it was appropriate to determine the amended interlocutory application insofar as it sought orders concerning male gender restricted evidence and to defer consideration of orders concerning female gender restricted evidence. The Walka Wani applicants, who seek leave to appeal, do not challenge the primary judge’s deferral of orders concerning female gender restricted evidence. (d)In the proceeding below, the Walka Wani applicants sought an order defining male gender restricted evidence as follows:Male gender restricted evidence” means such information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence at the hearings to take place from 30 September 2019 which information may not be disseminated to:a. women;b.Aboriginal men who have not been initiated into the relevant men’s law that is to be the subject of the evidence;c. children.(e)As the primary judge noted at [11], this order would have the effect of precluding any Aboriginal man who has not been initiated in the relevant Men’s Law from hearing the sensitive evidence or being informed of it. (f)The Walka Wani applicants sought additional orders which would have the effect of limiting people who could be present at the hearing when male gender restricted evidence was given; who may read transcripts of that evidence; limiting the disclosure of that evidence; limiting the recording and transcription of such evidence, and specifying an arrangement, confined to males, by which best endeavours would be used to agree upon whether any of the evidence given in restricted session may be made available as a non-confidential transcript. (g)The full terms of the order sought below by the Walka Wani applicants are set out at [11] to [15] of the primary judge’s reasons for judgment. (h)The Arabana applicant and the State of South Australia opposed orders being made in the form sought by the Walka Wani applicants. In particular, in the case of the Arabana applicant, an objection was taken to the proposed restriction relating to Aboriginal men “who have been initiated into the relevant men’s law that is to be the subject of evidence” because that would preclude any member of the Arabana applicant from hearing, or being informed of, the male gender restricted evidence. They complained that the restriction would inhibit their ability to give instructions concerning, or to contest, that evidence. (i)Accordingly, the Arabana applicant proposed certain variations to the proposed orders, the details of which are described by the primary judge at [19] to [20] of his Honour’s reasons for judgment. In essence, the proposed variations would permit two identified members of the Arabana applicant, upon each providing an undertaking to the Court, to hear the male gender restricted evidence for the purpose of giving instructions to the Arabana applicant’s male counsel and solicitor. The primary judge’s reasons for judgment summarised

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is a comprehensive summary of the background to the proceeding in the primary judge’s reasons for judgment at [4]-[24], which we gratefully adopt. In brief:(a)The overlapping claims for determination of native title over the Oodnadatta Common are brought by the Arabana People and the Walka Wani People respectively. The competing claims for determination of native title cover a wider area than the Oodnadatta Common. They are being heard together to the extent that there is an overlap in relation to the particular area which comprises the Oodnadatta Common.(b)By an amended interlocutory application, the Walka Wani applicants (whose claims for determination of native title are in proceedings SAD78/2013 and SAD220/2018) sought orders for the taking into account of particular cultural and customary concerns relating to both male gender restricted evidence and female gender restricted evidence. The Arabana People (whose claim for determination of native title is in proceeding SAD38/2013) have not sought any counterpart orders. (c)The primary judge considered that it was appropriate to determine the amended interlocutory application insofar as it sought orders concerning male gender restricted evidence and to defer consideration of orders concerning female gender restricted evidence. The Walka Wani applicants, who seek leave to appeal, do not challenge the primary judge’s deferral of orders concerning female gender restricted evidence. (d)In the proceeding below, the Walka Wani applicants sought an order defining male gender restricted evidence as follows:Male gender restricted evidence” means such information relating to Aboriginal law and custom as may be identified, recorded in written form or given in oral evidence at the hearings to take place from 30 September 2019 which information may not be disseminated to:a. women;b.Aboriginal men who have not been initiated into the relevant men’s law that is to be the subject of the evidence;c. children.(e)As the primary judge noted at [11], this order would have the effect of precluding any Aboriginal man who has not been initiated in the relevant Men’s Law from hearing the sensitive evidence or being informed of it. (f)The Walka Wani applicants sought additional orders which would have the effect of limiting people who could be present at the hearing when male gender restricted evidence was given; who may read transcripts of that evidence; limiting the disclosure of that evidence; limiting the recording and transcription of such evidence, and specifying an arrangement, confined to males, by which best endeavours would be used to agree upon whether any of the evidence given in restricted session may be made available as a non-confidential transcript. (g)The full terms of the order sought below by the Walka Wani applicants are set out at [11] to [15] of the primary judge’s reasons for judgment. (h)The Arabana applicant and the State of South Australia opposed orders being made in the form sought by the Walka Wani applicants. In particular, in the case of the Arabana applicant, an objection was taken to the proposed restriction relating to Aboriginal men “who have been initiated into the relevant men’s law that is to be the subject of evidence” because that would preclude any member of the Arabana applicant from hearing, or being informed of, the male gender restricted evidence. They complained that the restriction would inhibit their ability to give instructions concerning, or to contest, that evidence. (i)Accordingly, the Arabana applicant proposed certain variations to the proposed orders, the details of which are described by the primary judge at [19] to [20] of his Honour’s reasons for judgment. In essence, the proposed variations would permit two identified members of the Arabana applicant, upon each providing an undertaking to the Court, to hear the male gender restricted evidence for the purpose of giving instructions to the Arabana applicant’s male counsel and solicitor. The primary judge’s reasons for judgment summarised

Ratio Decidendi

Legal Principle Established

Even though the primary judge varied the proposed restrictions, he urged the parties to continue discussing means by which the cultural and customary concerns of both applicant groups could mutually be accommodated.Consideration and disposition of application for leave to appeal The relevant principles guiding the consideration and determination of an application for leave to appeal were not disputed. There are no rigid rules, but it is well settled that key considerations which bear upon the exercise of the Court’s discretion include:(a)whether in all the circumstances the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and(b)whether substantial injustice would result if leave were refused, supposing the decision is wrong. Those two limbs are cumulative and each limb needs to be made out (Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [4]-[5] per Ryan, Stone and Jagot JJ). The two limbs are also related (see Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] per Kenny, Tracey and Middleton JJ), with the consequence that sufficiency of the doubt in respect of the primary decision and the issue of substantial injustice should not be divided into separate compartments. Other considerations which are relevant to the consideration of the Walka Wani applicants’ application for leave to appeal were recently identified by the Full Court in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; 242 FCR 153 at [14] to [17]:(a)leave is less-often granted where the impugned ruling is discretionary and is on a matter of practice or procedure;(b)appellate intervention in matters of practice or procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution (referring to Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [34] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ and see also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. [1981] HCA 39; 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ); and(c)where, as here, the exercise of discretionary judgment is in question, an error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 needs to be identified and it is not enough to overturn a discretionary judgment that the appeal judges would have weighed considerations differently to the primary judge. With these background guiding principles in mind, we consider that the primary decision is not attended by sufficient doubt to warrant it being reconsidered by a Full Court because:(a)for reasons which we will develop below none of the proposed grounds of appeal has sufficient prospects to warrant leave being granted; and(b)no arguable appealable error has been identified in the primary judge’s carefully reasoned judgment as to the appropriate balance to be struck in exercising his judicial discretion.