Amoonguna Community Inc v Northern Territory of Australia

[2009] HCATrans 193

[2009] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D3 of 2008

B e t w e e n -

AMOONGUNA COMMUNITY INC

Plaintiff

and

NORTHERN TERRITORY OF AUSTRALIA

Defendant

Application for remitter

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO DARWIN

ON WEDNESDAY, 12 AUGUST 2009, AT 10.04 AM

Copyright in the High Court of Australia

MR P.F. McINTYRE:   Your Honour, I appear for the plaintiff in this matter and the proposed further plaintiffs.  (instructed by Midena Lawyers)

MS S.L. BROWNHILL:   Your Honour, I appear for the defendant, the Northern Territory of Australia and the proposed defendant, the MacDonnell Shire Council.  (instructed by Solicitor for the Northern Territory)

HIS HONOUR:   Which of you contends that you should be heard first on the question of remitter?

MR McINTYRE:   We have not actually discussed it, your Honour, but that is probably my fault because I am assuming that I would be first as the applicant.

HIS HONOUR:   Are you content with that, Ms Brownhill?

MS BROWNHILL:   Certainly, your Honour.

HIS HONOUR:   Yes.  Yes, Mr McIntyre.

MR McINTYRE:   Your Honour, I intend to be very short.  There are a couple of matters that I will address in passing.  You will notice that the plaintiffs have not filed a list of authorities, simply because we are content with the matters raised by the defendant.  We do not take issue with any of the matters of law put in their submissions, with perhaps a couple of minor caveats on what I have just said.  I will have to go straight to those, your Honour.

HIS HONOUR:   Could I tell you where I understand the issue to fall between you.  As I understand it, you point to the fact that there are some either witnesses or possible witnesses who live not very far from Adelaide.  The Northern Territory points particularly to the existence of a proceeding in the Supreme Court of the Northern Territory in which the Shire is looking for relief against two of the three proposed plaintiffs.  Now, there are other matters that both of you point to, but it struck me at least that those were the two chief points of difference between you.  Are there other matters that you would draw my attention to?

MR McINTYRE:   Your Honour, out of fairness to the defendant, I think they would put the connection of this proceeding with the Northern Territory on a higher footing than they put the matter of the Supreme Court proceeding.  I could be wrong about that.  Perhaps I should leave that to my friend.

HIS HONOUR:   Well, let us hear from you, Mr McIntyre.  The thing which troubles me most about this at the moment, Mr McIntyre, is this.  It seems to me that the choice is comparatively evenly based.  What at the moment troubles me most is that if there are pending proceedings in which there may be issues raised that intersect with the issues in this litigation it is much better that all of that be in the one court rather than in two courts.  Now, that is where I am at at the moment.  What do you say about that?

MR McINTYRE:   Your Honour, we agree generally with what you have just said, that all of those matters should be determined by the one court.  I should formally read the affidavit of Brett Midena of 7 August 2009 and of 10 August 2009.  In the latter of those two affidavits Mr Midena has annexed the various summonses, all of which came on before Mr Justice Mildren last Wednesday.  Without wanting to descend into the arguments that were put before his Honour last week, clearly on the summonses we thought that was probably as far as we need to go with you, your Honour, here.

HIS HONOUR:   Can I just understand.  There is an affidavit of Mr Midena of 7 August.

MR McINTYRE:   Yes.

HIS HONOUR:   And?

MR McINTYRE:   And an affidavit of 10 August 2009.

HIS HONOUR:   Well, 10 August affidavit is one that I do not believe I have.  It is certainly not one to which I have looked.

MR McINTYRE:   Your Honour, I do not think what I am about to say is contentious and it may mean that we do not have to go hunting for that affidavit.  The purpose of that affidavit was simply to bring to your attention the nature of the applications that were before his Honour, Mr Justice Mildren, last week in the Supreme Court and to simply let you know that he is reserved on all of those applications and that those applications include an application by the Shire, the MacDonnell Shire, to amend the pleadings that were the subject of the defendant’s submissions herein and secondly, that there were strike‑out applications in respect of which his Honour is reserved with respect to those matters on behalf of the defendant therein who is the bookkeeper of the plaintiff in these proceedings.

Orders were made for two of the three proposed new plaintiffs herein to be joined as – they sought leave to be joined as interveners in those proceedings and were granted leave.  Those parties also bring an application to strike out the Supreme Court proceedings and that is the purpose of the affidavit that is not presently before you, simply to say all of those things so that you know that Mr Justice Mildren is reserved on the question of complete strike out of those proceedings and secondly ‑ ‑ ‑

HIS HONOUR:   What is the foundation for the strike‑out application?  Does that raise the question of validity that is in issue in this proceeding?

MR McINTYRE:   The intervening defendants in the Supreme Court have submitted that the Supreme Court proceedings are an abuse of process and duplicitous and a collateral attack on this proceeding.  His Honour is reserved on those matters.  Counsel for the plaintiff in the Supreme Court proceedings acknowledged two things, firstly that the Supreme Court proceedings would fail on behalf – that these proceedings would be fatal to the plaintiff therein should the plaintiff succeed here.  So the connection on constitutional matters is clear in both proceedings.

But counsel for the plaintiff in the Supreme Court acknowledges that there are matters that ought be determined wherever this matter gets remitted.  We say that in relation to the exercise of your discretion here ought not be influenced by what we say are improper proceedings anyway.  In respect of that, his Honour Mr Justice Mildren is reserved.

To put not too fine a point on it, the Shire instructed different lawyers and different counsel in that matter and I am not wanting to descend into the merits of what has been argued before his Honour already but we would say that a consideration of those proceedings ought be irrelevant here because this Court was – the jurisdiction in relation to the matter was already invoked in the High Court and we say that the matters that the Shire wanted to pursue in the Supreme Court could properly, and should properly, have been pursued here.

To now rely on their proceedings to determine where the matter should be remitted we say is akin to the tail wagging the dog.  We say that it should be irrelevant.  So the simple purpose of that second affidavit was to let you know the nature of the applications in respect of which his Honour is currently reserved.

HIS HONOUR:   Yes.

MR McINTYRE:   That, in a sense, canvasses what we would say about one of the two things you have raised earlier, your Honour, and that is what to do about those proceedings.  We say that they should not affect your decision.  With respect to the balance of convenience here, there is only really one point of law.  We simply say this.  At paragraph 8 of the defendant’s written submissions the general proposition is put, with which we have no problem.  It is this:

Hence, the proceeding has a close connection with the Northern Territory. 

We concede that, of course. 

If the balance of convenience were evenly poised, the close connection of the place where the cause of action arose would compel a remittal to that jurisdiction.

We say that is relevant, but we think, with all due respect, that that is putting that decision of Crouch v Commissioner for Railways and what is said there a little high.  We concede that the case is authority for the general proposition but we say that to say that it compels it is just going too far.  But generally we do not take issue with the law. 

I should point out though that a number of the cases that the defendant refers to are matters in respect of which jurisdiction in the High Court had been invoked and the High Court was then considering a remittal where the Federal Court would not have had jurisdiction had not the High Court jurisdiction been invoked.  So we would say of those decisions, notably Scott v Bowden and Mabo, that we ought not let that - your Honour ought not let that sway you because that is not the case here.

We say quite properly these proceedings could have been pursued at first instance in either the Supreme or the Federal Court and the real issue here is the convenience for the litigation.  What is the best way - in terms of efficiency, convenience, cost, all of those things – forward for the proper disposal of these proceedings.

We say that the Federal Court has recognised almost unparalleled experience in the gathering of traditional Aboriginal evidence in country to do with traditional connection to land.  Interestingly, that experience has been developed over the 17 years or so since these authorities back in 1992 and other years in the 90s were handed down.

So, nevertheless, in relation to the Western Australian decision – Utemorrah and Ors v The Commonwealth – nevertheless, even as early as that decision reference in 1992 was made to what was said to be the Supreme Court of Western Australia having what is called – and this is at page 227 at about point 19 – Justice Toohey said of that court:

the Supreme Court has substantial experience in hearing matters involving Aboriginal witnesses –

What we say about that is that the Federal Court has unparalleled experience and expertise in adducing evidence about traditional connection to land.  It has exercised that in the native title domain since that Act was brought in, but it has a long history of dealing with claims under the Aboriginal Land Rights Act on appeal and otherwise.

So we say strongly you ought not ignore that matter and we say, as strongly, that the Federal Court has the capacity to hear what are probably the five central witnesses for the plaintiff on issues relating other than Aboriginal connection.  So in terms of the plaintiff’s non‑Aboriginal connection evidence it is likely three lead experts are South Australians, anthropology on the one hand and forensic accounting on the other, and the two principal historical witnesses in terms of the history of the plaintiff, Amoonguna Community Inc, since its incorporation.

So it is convenient that the Federal Court manages the Northern Territory jurisdiction essentially from Adelaide.  The Federal Court has regularly sat in Alice Springs to hear Aboriginal connection evidence.  On the other hand, the defendant’s witnesses are largely going to be Alice Springs based anyway.  Then finally, it is highly probable – and this is difficult to – I am not wanting to criticise the Northern Territory Supreme Court jurisdiction at all but it simply does not have, we say, the capacity to hear the evidence that we want to be heard in Adelaide and it has less of a capacity, we say, and far less experience in Aboriginal connection evidence.  I do not think there is more that I could add, your Honour.

HIS HONOUR:   Yes.  Thank you very much.

MR McINTYRE:   Sorry, there is one other matter I need to correct on the record.  At paragraph 10 of the submissions the defendant makes reference to two of the three counsel for the plaintiff and I just want to make it clear that – lest we mislead anybody – at the moment Mr Slattery QC who led the matter before your Honour is not presently retained for the plaintiffs in these proceedings.  It is, I should say, quite a probability that he might be, but at the moment I am wanting to correct that assertion that two of our counsel are in South Australia - at the moment myself here and Mr Tokley in Adelaide.  Thank you, your Honour.

HIS HONOUR:   Yes.  I should say to you, Mr McIntyre, that the further affidavit of Mr Midena of 10 August is now before me and I take it that you read that affidavit as well.  Yes, Ms Brownhill.

MS BROWNHILL:   Your Honour, may I take as read the affidavit of Richard Bruxner sworn on 6 August?

HIS HONOUR:   Yes.

MS BROWNHILL:   I also rely on our written submissions dated 6 August with an errata that was provided on 10 August.

HIS HONOUR:   Yes, I have that.

MS BROWNHILL:   Thank you, your Honour.  Your Honour, as my learned friend accepts the applicable law between the two competing tribunals is the same, which means the balance of convenience is of great importance and, in my submission, decisive.  What is meant by the term “balance of convenience” of course is as was stated by Justice Toohey in Crouch, namely that the matter should be remitted to:

the court which, in all the circumstances, will facilitate the course of the litigation.

Your Honour, my learned friend refers to a number of factors in weighing the balance of convenience which I say are irrelevant. The first of those is the capacity of the courts to decide the law. The plaintiffs say, in their written submissions, that the issues concern the interpretation of the Constitution and of various Commonwealth statutes and therefore the matter should go to the Federal Court. This argument was expressly rejected by Justice Toohey in the Utemorrah decision at 227 at about line 32.  In that passage, your Honour ‑ ‑ ‑

HIS HONOUR:   Yes, you may take it that I am generally familiar with the decision.

MS BROWNHILL:   Yes, thank you, your Honour.  Secondly, my learned friend refers to the capacity of the courts to hear and comprehend the evidence, namely to decide the facts.  In Mabo ‑ ‑ ‑

HIS HONOUR:   Well, I think I must proceed on the assumption that it is not appropriate to engage in some comparative estimate of capacity of courts.

MS BROWNHILL:   Yes, I accept that entirely, your Honour.  In response to the plaintiff’s suggestion that the Supreme Court’s experience or expertise in taking evidence from Aboriginal witnesses is somehow inferior to that of the Federal Court ‑ ‑ ‑

HIS HONOUR:   I think you are just about to embark on what I said was something that I did not think was a particularly useful path, Ms Brownhill.

MS BROWNHILL:   All right, your Honour, well I will not proceed any further down it. A third irrelevant matter that is referred to in the written submissions is that this proceeding may ultimately return to this Court on appeal and of course that is irrelevant when it is clear there is a right of appeal to this Court from the Supreme Court of the Northern Territory under section 35AA of the Judiciary Act.

HIS HONOUR:   But the chief point made against you seems to be, as I understand it, that the existence of the other proceedings in the Supreme Court of the Northern Territory is, as was put in argument, the tail wagging the dog.  It is argued that those proceedings were an abuse having regard to the existence of the current proceedings and that I should therefore not have regard to the existence of the proceeding now pending in the Supreme Court of the Northern Territory.  What do you say about that proposition?

MS BROWNHILL:   Your Honour, the impropriety or otherwise of those proceedings is not a matter that is the subject of any decision of the Supreme Court as yet.  The existence of the proceedings is part of the factual matrix within which your Honour has to exercise this discretion.  What is relevant is the fact of the existence of a proceeding which raises the same issues or allegations of invalidity of the Territory laws.  The parties all accept that it is preferable for the same court to determine those issues and this can be done by hearing both matters at the same time in the Supreme Court pursuant to Supreme Court rule 9.12 which permits matters or parts of matters to be heard together.  In my submission, your Honour, it is one factor within a series of factors that point to the balance of convenience being in favour of the Supreme Court of the Northern Territory.

If I can move to what those other factors are, your Honour.  They are the location of potential witnesses.  None of our potential witnesses are located in Adelaide.  They are all in Darwin or Alice Springs.  More than six to 12 of the plaintiff’s potential lay witnesses are in Alice Springs and the Supreme Court routinely and regularly sits in Alice Springs and the Federal Court does not and those matters are the subject of various paragraphs in the Bruxner affidavit upon which we rely.  Your Honour, the plaintiff’s three potential expert witnesses and two potential lay witnesses can give their evidence in the Supreme Court via video link to Adelaide.  That is a matter provided for under the Supreme Court Rules in order 48 rule 26.

The additional factors, your Honour, are the location of the potential documentary evidence, such as the financial and administrative records of the first plaintiff which are most likely to be in the custody of the Shire in Alice Springs, the location of the solicitors for both parties, which is Darwin, so for the filing of documents in the Court the most convenient place is Darwin.  As to the location of counsel, both the defendant’s counsel and one of the two plaintiffs’ counsel are in Darwin and at least for interlocutory proceedings, as is evidenced by this proceeding, the most convenient place to be heard is Darwin.

As to the prospect of a hearing in either court and the timing thereof, the evidence before your Honour is that there is no difference between the Federal Court and the Supreme Court of the Northern Territory.  In my submission, your Honour, overall the balance of convenience clearly favours the Supreme Court of the Northern Territory.  If, contrary to that submission, your Honour, considers that the balance of convenience does not especially favour either court, that is that the balance is evenly poised, then the close connection of the proceeding with the Territory is decisive and I rely on the decisions of Chief Justice Gibbs in Mabo and Justice Toohey in Utemorrah for that proposition.  If necessary, I can take your Honour to both of those decisions in which the word “decisive” is used.

My learned friend refers to the factor of the lack of original jurisdiction in the Federal Court in both of those proceedings and the absence of that factor in these proceedings.  That simply removes that factor from the mix, your Honour, and the proposition stands good.

In relation to the obvious close connection of this proceeding with the Territory, I refer your Honour to paragraph 7, I think, or 8 of our written submissions but, in short, they include that this is a challenge to the validity of Territory laws and to steps taken by a Territory Minister that the plaintiff, the ACI – the proposed first plaintiff was an association incorporated under Territory law.  Its members were Territory residents or traditional owners of land in the Territory.  It performed local government functions under Territory law.  The plaintiff’s assets and activities were wholly located in the Territory.  The individual proposed plaintiffs are Territory residents.  The land in which interests are said to be held by those plaintiffs is in the Territory.

The first defendant is the Northern Territory and the proposed second defendant is a creature of Territory law exercising local government functions in the Territory pursuant to Territory law.  For those reasons, your Honour should remit the proceeding to the Supreme Court of the Northern Territory.

HIS HONOUR:   Just before you sit down, Ms Brownhill, there is exhibited to Mr Bruxner’s affidavit exhibit RB3 which is the consent orders that were then proposed.  Are those agreed in by your side of the record?

MS BROWNHILL:   Orders 1 through 4 are, your Honour.

HIS HONOUR:   Orders 1 to 4 are, not 5.

MS BROWNHILL:   Exactly, your Honour.

HIS HONOUR:   Yes.

MS BROWNHILL:   With one very minor amendment which is under the heading “Consent” there is a reference to rule 8.02.2.  It should be a reference to 8.04.2, which is the rule dealing with consent orders.

HIS HONOUR:   Yes, I see.  Yes, thank you.  Is there anything you want to add in reply, Mr McIntyre.

MR McINTYRE:   No, your Honour.  Very briefly, we accept that there is no question about capacity and laws.  The same law applies in whichever court to which your Honour refers the matter.  I just wanted to clarify, your Honour, you were having trouble locating the affidavit of 10 August.

HIS HONOUR:   I now have that.

MR McINTYRE:   With that document when filed were the plaintiff’s submissions in reply.

HIS HONOUR:   I have that as well.

MR McINTYRE:   Thank you, your Honour.  No, I have nothing further to add except, your Honour, for clarity the current Supreme Court proceedings before his Honour Mr Justice Mildren are proceedings ran out of the Northern Territory Supreme Court in Alice Springs.  I am not sure if your Honour appreciates this, but in the Northern Territory we have to file according to whichever registry proceedings are issued from and those proceedings were issued in the Supreme Court of the Northern Territory via the Alice Springs registry.

HIS HONOUR:   Yes.

MR McINTYRE:   I just say that in answer to what has been put about the ease of those sorts of matters.  Thank you, your Honour.

HIS HONOUR:   In May 2008, Amoonguna Community Inc commenced a proceeding in this Court against Northern Territory of Australia.  The proceeding was one in which Amoonguna Community Inc sought orders restraining the Minister for Local Government of the Northern Territory, MacDonnell Shire Council and the manager of the Shire, or persons authorised by the Shire, from exercising powers under the Local Government Act 1993 (NT) or the Local Government Act 2008 (NT) or both Acts in respect of the plaintiff or any of its assets, rights, entitlements or property. Amoonguna Community Inc alleged that provisions of the Local Government Act 1993 and the Local Government Act 2008 and certain steps taken by the Minister under those Acts are invalid insofar as they affect the plaintiff.

The plaintiff seeks the relief that I have described upon a number of bases including the contention that the impugned provisions provide for an acquisition of property otherwise than on just terms contrary to either or both of sections 6 and 50(1) of the Northern Territory (Self‑Government) Act 1978 (Cth) and sections 122 and 51(xxxi) of the Constitution, or that there is some inconsistency or repugnance between the impugned provisions of the Northern Territory legislation and either or both of the Northern Territory Emergency Response Act 2007 (Cth) or the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

For a time it appeared as though it may be possible for the proceeding in this Court to go forward by way of either stated case or special case or demurrer to the plaintiff’s statement of claim. As events have happened, however, it is apparent that it is not a matter in which those procedures can conveniently be adopted and the parties now accept that it is appropriate that the proceedings be remitted from this Court pursuant to section 44 of the Judiciary Act 1903 (Cth).

The parties differ, however, about whether the proceeding should be remitted by this Court to the Federal Court of Australia or to the Supreme Court of the Northern Territory.  Both parties accept that both the Federal Court and the Supreme Court of the Northern Territory have jurisdiction with respect to the subject matter and the parties to the present proceedings in this Court but disagree about which court is the appropriate recipient of the remitter.

The plaintiff and the Northern Territory both point to various considerations which are said to favour remitter to one court rather than the other.  The plaintiff contends that there should be remitter to the Federal Court of Australia.  The Territory contends there should be remitter to the Northern Territory.  Each party has sought to identify where lies the balance of convenience by reference to various considerations including such matters as where witnesses whom it is expected may be called in the proceedings reside, where records are to be found and where counsel engaged in the matter ordinarily carry on the bulk of their practice.  In the end, however, none of the matters to which I have referred indicates any distinct convenience for one court rather than the other being the recipient of the remitter. 

Since proceedings were instituted in this Court the Shire has begun a proceeding in the Supreme Court of the Northern Territory seeking relief against persons whom it is proposed should be added as plaintiffs in the proceeding now pending in this Court.  The defendants in the proceeding in the Supreme Court resist the relief that is sought in that court by making assertions of invalidity of the 1993 and 2008 Northern Territory Acts that I have earlier mentioned and the steps that have been taken pursuant to those Acts, of the same general kind as are made in the present proceeding.

The Territory submits that the proceeding now pending in the Supreme Court of the Northern Territory is itself reason enough to remit this action to that court.  Against that, the plaintiff in this Court says that to treat the existence of proceedings brought by MacDonnell Shire Council in the Supreme Court of the Northern Territory as the decisive consideration determining where the remitter should be is to permit the tail to wag the dog.

In particular, the plaintiff points out that it contends that the proceedings instituted in the Supreme Court of the Northern Territory are, having regard to the existence of proceedings pending in this Court, properly to be regarded as vexatious or an abuse of process and argument of those issues has, as I understand it, taken place in the Supreme Court of the Northern Territory though decision of them remains reserved.

If, as I think to be the preferable consideration, account is not taken of the existence of proceedings in the Supreme Court of the Northern Territory and if, as I also consider to be the better view of the matter, considerations of convenience are substantially evenly balanced, it remains important to recognise that the central issue, which is tendered for decision in the present proceeding, is an issue about the validity of legislation of the Northern Territory and steps taken under that legislation.

Although, of course, the Federal Court of Australia has jurisdiction to consider the questions of validity that thus are raised, it is of importance to recognise that the issues tendered for decision focus, as I have indicated, upon the validity of legislation of the Territory. 

Having regard to that and the other considerations that I have mentioned I am of opinion that there should be an order remitting the present proceedings to the Supreme Court of the Northern Territory where further steps in the action should be taken in accordance with the ordinary procedures of that court. 

The parties have agreed that apart from the questions of remitter it is appropriate before remitting the action to make certain directions for joinder of parties and to make directions permitting the filing and service of an amended statement of claim.

Subject to anything that counsel may say then as to the form of orders I would propose to order as follows:

1.Enlarge the time within which the plaintiff may file and serve an amended statement of claim to 31 August 2009.

2.Give leave to the plaintiff to join Tony Francis Palmer, Marie Elana Ellis and Roseanne Philomena Ellis as plaintiffs in the proceeding and amend the title of the proceeding accordingly.

3.Give leave to the plaintiffs to add MacDonnell Shire Council as a defendant to the proceeding and amend the title of the proceeding accordingly.

4.Remit the proceedings to the Supreme Court of the Northern Territory giving the usual directions in connection with such remitter.

5.Costs of this application be costs in the proceeding.

Counsel will notice that I have not thought it necessary to revoke the order made on 24 June directing the defendant to file and serve its defence and demurrer.  It seems to me that that is unnecessary having regard to the leave that is now given to file and serve an amended statement of claim.  Counsel will also notice that I propose that the costs of the application be costs in the proceeding.  Do counsel wish to be heard about the form of the orders that I have indicated?

MR McINTYRE:   Your Honour, just one matter.  The way the first of those orders was drafted was really housekeeping.  The pleading referred to therein was in fact, as I understand it, filed and served on or before 4 July and that took place ‑ ‑ ‑

HIS HONOUR:   Yes.

MR McINTYRE:   The earlier order was a different date, and as I understand it there is no need to extend that through to the end of August now.  In a sense it is a matter of housekeeping to simply enlarge the period to 4 July 2008 to take account of what actually happened.

HIS HONOUR:   Yes, I will amend the order accordingly to enlarge the time within which the plaintiff may file and serve an amended statement of claim to 4 July 2009 but, Mr McIntyre, does that take account of the added parties?

MR McINTYRE:   No, it does not, your Honour.  Thank you, I am biased.

HIS HONOUR:   Well then, I will not amend it.  It will stand as 31 August 2009.

MR McINTYRE:   Thank you, your Honour.

HIS HONOUR:   Yes.  Do you wish to be heard, Ms Brownhill, on the form of orders I have indicated.

MS BROWNHILL:   No, I do not.  Thank you, your Honour.

HIS HONOUR:   Yes, there will be orders in those terms then.  Thank you.  I will adjourn to establish the video link to Adelaide.

AT 10.45 AM THE MATTER WAS ADJOURNED