Arnhem Land Aboriginal Land Trust v The Honourable Daryl Manzie MLA, (Minister for Mines and Energy for the Northern Territory of Australia)
[1997] FCA 1015
•3 OCTOBER 1997
FEDERAL COURT OF AUSTRALIA
PRACTICE & PROCEDURE - choice of jurisdiction - cross-vesting legislation - Administrator of Northern Territory - whether acting as a persona designata
STATUTES - retrospective effect - jurisdiction of the Court.
O 13 r 3(1) of the Federal Court Rules
Crown Proceedings Act 1993 (NT)
Northern Territory (Self Government) Act 1978 (Cth)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Judiciary Act 1903 (Cth)
Trade Practices Act 1974 (Cth)
Supreme Court Act 1979 (NT)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Sales Tax Procedure Act 1934 (Cth)
Administrators’ Pension Act 1981 (NT)
Special Purposes Lease Act 1979
Mining Act 1980 (NT)
Bainbridge-Hawker v The Minister of State for Trade and Customs (1957-1958) 99 CLR 431
Walter John Bailey (No 1) Pty Ltd v Glass (1992) 36 FCR 290
Kodak (Australia) Pty Ltd v Commonwealth of Australia (1990) 22 FCR 197
Parsons v Martin (1984) 5 FCR 235
Edwards Hot Water Systems v SW Hart & Co Pty Ltd (1985) 9 FCR 537
Felton v Mullighan (1971) 124 CLR 367
The Commonwealth Court of Conciliation and Arbitration and The President Thereof and The Australian Tramway Employees Association (The Tramways case [No 1] (1914) 18 CLR 54
Trimbole v Dugan (1984) 3 FCR 324
R v Murray (1916) 22 CLR 437
R v Toohey; Ex parte Northern Land Council (1980-1981) 151 CLR 170
G H Michell & Sons (Australia) Pty Ltd v Minister of Works (1974) 8 SASR 7
Re Federal Commissioner of Taxation; Ex parte Just Jeans Pty Ltd (1986) 65 ALR 147
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Lamshed v Lamshed (1992) 35 FCR 111
Aronson & Dyer: Judicial Review of Administrative Action 1996
ARNHEM LAND ABORIGINAL LAND TRUST & ANOTHER v THE HONOURABLE DARYL MANZIE MLA, (MINISTER FOR MINES AND ENERGY FOR THE NORTHERN TERRITORY OF AUSTRALIA) & OTHERS
DG 11 0F 1996
O’LOUGHLIN J
ADELAIDE
3 OCTOBER 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) DG 11 of 1996
BETWEEN: ARNHEM LAND ABORIGINAL LAND TRUST
First ApplicantNORTHERN LAND COUNCIL
Second ApplicantAND: THE HONOURABLE DARYL MANZIE MLA, (MINISTER FOR MINES AND ENERGY FOR THE NORTHERN TERRITORY OF AUSTRALIA)
First RespondentsTHE NORTHERN TERRITORY OF AUSTRALIA
Second RespondentSWISS ALUMINIUM AUSTRALIA PTY LIMITED
Third RespondentGOVE ALUMINA LIMITED
Fourth RespondentREGISTRAR-GENERAL FOR THE NORTHERN TERRITORY
Fifth Respondent
JUDGE: O'LOUGHLIN J DATE OF ORDER: 3 OCTOBER 1997 WHERE MADE: ADELAIDE
MINUTES OF ORDER
THE COURT ORDERS:
That the two notices of motion each filed by the first, second and fifth respondents on 17 December 1996 be dismissed.
That the notice of motion filed by the third and fourth respondents on 14 January 1997 be dismissed.
That the notice of motion filed by the applicants on 19 February 1997 be dismissed.
That any party may apply to relist the matter for further consideration and for consequential matters on seven days notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY ) DG 11 of 1996
BETWEEN: ARNHEM LAND ABORIGINAL LAND TRUST
First ApplicantNORTHERN LAND COUNCIL
Second ApplicantAND: THE HONOURABLE DARYL MANZIE MLA, (MINISTER FOR MINES AND ENERGY FOR THE NORTHERN TERRITORY OF AUSTRALIA)
First RespondentsTHE NORTHERN TERRITORY OF AUSTRALIA
Second RespondentSWISS ALUMINIUM AUSTRALIA PTY LTD
Third RespondentGOVE ALUMINA LIMITED
Fourth RespondentREGISTRAR-GENERAL FOR THE NORTHERN TERRITORY
Fifth Respondent
JUDGE: O'LOUGHLIN J DATE: 3 OCTOBER 1997 PLACE ADELAIDE
REASONS FOR JUDGMENT
The respondents challenge the jurisdiction of this Court to hear these proceedings; they were commenced by the Arnhem Land Aboriginal Land Trust and the Northern Land Council (“the applicants”) in the Northern Territory District Registry of the Court on 25 November 1996 when the applicants filed an application and statement of claim. An amended application and an amended statement of claim were filed on 7 January 1997 in accordance with the terms of O 13 r 3(1) of the Federal Court Rules; that sub-rule entitles a party, without leave, to amend any pleading once at any time before the pleadings are closed. References hereafter to the contents of the application or to the statement of claim will, unless otherwise stated, be references to those amending documents.
THE LEASED LANDS: SPECIAL PURPOSE LEASE NO 215
The proceedings are centred upon the renewal in 1989 of Special Purpose Lease No 215 (“SPL 215”). The signatories to the document that recorded the renewal were Eric Eugene Johnston who was described as “the Administrator of the Northern Territory of Australia, acting with the advice of the Executive Council” and Barry Francis Coulter who was, at that time, the Minister for Mines and Energy for the Northern Territory of Australia. The lease, which had been granted by the Crown in right of the Commonwealth on 6 June 1969 to Swiss Aluminium Australia Pty Limited (“Swiss Aluminium”) and Gove Alumina Limited (“Gove Alumina”), the third and fourth respondents, is presently registered over the land comprised in the Northern Territory Register Book of Crown Leases Volume 75 Folio 34. Several declarations were sought by the applicants, but it is sufficient, at this stage, to note that the primary relief that was originally claimed was a declaration that the purported renewal of SPL 215 was “of no force or effect”. However, it should be noted that the declaratory and other relief that is being sought has been substantially extended as a result of amendments and proposed amendments to the pleadings.
When these proceedings were originally instituted, the Honourable Daryl Manzie MLA (the Minister for Mines and Energy for the Northern Territory of Australia at that time) was named as the first respondent and the Northern Territory of Australia (“the Territory”) was named as the second respondent. The fifth respondent was the Registrar-General for the Northern Territory (“the Registrar-General”). The Registrar-General was brought into the proceedings as it was claimed that the holder of that office is and was responsible for the administration of the Real Property Act and for the maintenance of the Register Book of Crown Leases. The amended application and statement of claim included two additional respondents: the Honourable Barry Francis Coulter MLA, the former Minister for Mines and Energy and the Honourable Mike Reed MLA, the Minister for Lands, Planning and Environment. Those additional respondents were named as respondents in the proceedings because they are or were, at relevant times, allegedly responsible for the administration of legislation that is said to be relevant to the issues in this matter. One wonders whether the inclusion of the two additional Ministers was necessary and whether it was necessary to name the Honourable Daryl Manzie as a respondent. If the provisions of the Crown Proceedings Act 1993 (NT) apply to these proceedings (and the effect of that statute was not addressed by the respondents during the course of argument) the proceedings would have been appropriately styled if, as respondent, they had named only the “Northern Territory of Australia”: see par 5(2)(a) of that Act. The matter is of no great importance however, for as Dixon CJ commented in Bainbridge-Hawker v The Minister of State for Trade and Customs (1957-1958) 99 CLR 431 at 547. a failure to follow correct practice “cannot be fatal to the proceedings”.
In order to appreciate the interlocutory issues that are presently before the Court, it is necessary to examine the circumstances that led to the grant of SPL 215. What is set out below has been extracted from the statement of claim, the contents of which may be assumed to be accurate for the purposes of these reasons.
First, it is pleaded that on 22 February 1968 the Commonwealth of Australia entered into an agreement (“the agreement”) with Nabalco Pty Limited for the exploration and mining of bauxite on the Gove Peninsula in the Territory. There is then a plea that in May 1968 the Legislative Council for the Territory enacted the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1979 (“the Gove Peninsula Ordinance”) whereupon, by virtue of the terms of the Ordinance, the agreement became effective.
Paragraphs 8 and 9 of the statement of claim are in the following terms:
“8.Section 6 of the Gove Peninsula Ordinance authorised the Minister of State for Territories of the Commonwealth, on behalf of the Commonwealth, to:
(a)grant to Nabalco Pty Limited (or its successors or transferees) any lease, including any Special Purposes Lease, for the purpose of giving effect to clause 4 of the agreement;
(b)renew any lease referred to at (a) for the purpose of giving effect to clause 4 of the agreement.
9.Clause 4(2) and (3) of the agreement empowered the Minister of State for Territories of the Commonwealth to grant, on behalf of the Commonwealth, Special Purposes Leases for additional lands as would be reasonably required by Nabalco Pty Limited for the provision of services and for purposes ancillary to its operations under the agreement.”
The statement of claim does not explain how the role of Nabalco has been supplanted by Swiss Aluminium and Gove Alumina but as no point was taken by any party on that subject I will assume that the last mentioned companies are Nabalco’s successors or transferees.
It is then alleged in par 10 of the statement of claim that on or about 6 June 1969, the Minister of State for Territories of the Commonwealth, on behalf of the Commonwealth, and pursuant to the powers conferred on him by the agreement, the Gove Peninsula Ordinance and the Special Purpose Leases Ordinance 1968 (“the SPL Ordinance”) granted Swiss Aluminium and Gove Alumina a lease over the lands comprised and described in SPL 215. This is not correct; the photocopy of the lease that was annexed to the affidavit of the applicants’ solicitor shows that the signatory was the Honourable Peter James Nixon, the Minister of State for the Interior.
The lands that are the subject of that lease (“the leased lands”) are identified as Pt A and Pt B and the special purposes that are set out in the recitals to SPL 215 were said to be the establishing, operating and maintaining:
“Aon the part A land, a construction camp ancillary to the construction and development operations of [Swiss Aluminium and Gove Alumina] under and pursuant to the agreement;
Bon the part B land, works of sewerage treatment, communications facilities and a pre-mix concrete plant.”
In par 11A of the statement of claim it is alleged that since July 1978, as a result of the Northern Territory (Self Government) Act 1978 (Cth) (“the Self Government Act”), the interests of the Commonwealth in respect of the agreement, the leased lands and SPL 215 have been transferred to the Territory and are now vested in the Territory.
It is pleaded that the term of SPL 215 was an initial period expiring on 21 January, 1989. However, it is also pleaded that there was a purported renewal of the lease on 4 January 1989 for a further term of twenty years. It is that purported renewal that is at the heart of the applicants’ challenge in these proceedings.
THE INTERESTS OF THE APPLICANTS IN THE LEASED LANDS
Provisions in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”) that are relevant to this litigation include subs 10(2) and par 12(1)(b). Subsection 10(2) provides as follows:
“10(2) Where:
(a)a Land Trust has been established in respect of land constituting, or included within, an area of land described in Schedule 1; and
(b)a person (other than the Crown) has an estate or interest in the whole or part of that land;
the Minister shall recommend to the Governor-General that the Governor-General execute a deed of grant of an estate in fee simple in that land, or that part of that land, to that Land Trust and deliver it to the Land council for the area in which that land, or that part of that land, is situated to be held in escrow until all of the estates and interests in that land, or that part of that land, held by a person (other than the Crown) have come to an end, whether by surrender to the Crown or otherwise, and then to be delivered by the Land Council to that Land Trust.”
For the purposes of these reasons, and at this interlocutory stage of the litigation, it may be taken that the leased lands are included in schedule 1 to the Land Rights Act, that the first applicant is a Land Trust established in respect of land that is included in the schedule, and that the relevant Land Council is the Northern Land Council, the second named applicant in these proceedings. If it be found at trial that the renewal of SPL 215 was, in all respects, valid, then, prima facie, Swiss Aluminium and Gove Alumina would, by virtue of Commonwealth legislation, have an estate or interest in part of the leased lands; they would arguably come within the meaning of the word “person” appearing in par (b) of subs 10(2) of the Land Rights Act. In such circumstances, Swiss Aluminium and Gove Alumina would continue to enjoy the benefits of the renewed lease until 2009. Conversely, if the applicants can have the renewal of SPL 215 somehow set aside, then assuming that there are no other estates or interests (and none have been referred to during the course of argument) the first applicant, the Arnhem Land Aboriginal Land Trust, will be able to look forward to immediate possession of the leased lands.
Section 12(1)(b) of the Land Rights Act states that, subject to some qualifications that are not presently relevant, the Governor-General may:
“(b)in the case of a recommendation under subsection 10(2) or (2B) - execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the Land Council referred to in the recommendation on the condition that it be held by the Land Council in escrow, and subsequently delivered to the grantee, in accordance with the recommendation.”
In pars 14 and 15 of the statement of claim it is pleaded that on 17 June 1988 a grant of an estate of fee simple in the leased lands was made by the Governor-General on behalf of the Commonwealth to the first applicant and that the grant was then and is now held by the Northern Land Council in escrow until the leasehold interests of Swiss Aluminium and Gove Alumina under SPL 215 shall have expired.
THE ULTIMATE QUESTION
The ultimate question for determination if these proceedings go to trial is whether the estate or interest in the leased lands held by Swiss Aluminium and Gove Alumina came to an end (or should have come to an end) upon the expiration of the original term of the lease or whether there was a lawful and effective renewal of it in 1989.
The first argument that the applicants seek to advance can be identified from the contents of par 16 of the statement of claim. It is alleged that s 13 of the Land Rights Act provides that no grant of an estate or interest in land that is the subject of a deed of grant held in escrow by a Land Council, may be made by the Territory or the Commonwealth without the consent of the Land Council for the area in which the land is situated. It is then pleaded that the purported renewal of SPL 215 in January 1989 constituted a grant by the Territory of an estate or interest in the leased lands and (inter alia) that it was made without the consent of the Northern Land Council.
A further claim that can be extracted from the pleadings is that which is found in par 19 of the statement of claim. It is the allegation that the Territory had a discretion whether to renew the term of SPL 215 and that it owed the first applicant a “fiduciary duty to not exercise its executive power in such a way that might diminish or impair the interests of the First Applicant in the leased lands”.
Then there is a plea in par 20 of the statement of claim to the effect that Swiss Aluminium and Gove Alumina “have had no reasonable need to have SPL 215 renewed or extended”. In support of that plea it is alleged that the leased lands are now being used for impermissible purposes; in particular, parts of the leased lands are said to be occupied by the Gove Yacht Club and other parts are allegedly being used for the general accommodation of persons for purposes unconnected with permitted works. The statement of claim concludes with claims that the Minister for Mines and the Minister for Lands were entitled to determine or forfeit SPL 215 and that they were under a fiduciary duty to the first applicant to do so.
In its original composition, the application and statement of claim seemed to rely exclusively on the provisions of the Land Rights Act as the presumed source of this Court’s jurisdiction. But it is not now contended by the applicants that that statute confers original jurisdiction on the Federal Court with respect to the issues that are the subject of this litigation. This position may be contrasted with the terms of ss 54D and 23B of the Land Rights Act. The former confers jurisdiction on the Federal Court and the latter confers jurisdiction on the Supreme Court of the Northern Territory but in both cases in certain, specified circumstances and with respect to limited subject matters, none of which is relevant to this dispute. There is no such specific provision in the Land Rights Act that identifies this Court as the Court that has jurisdiction in respect of disputes that arise out of an interpretation of s 13 of that Act.
THE RESPONDENTS’ RESPONSES
The Minister for Mines, the Territory and the Registrar-General entered a joint, unconditional appearance on 3 December 1996. Fourteen days later, on 17 December, they filed two notices of motion. In the first, they sought the leave of the Court to amend their appearance to make it a conditional appearance and in the second they sought an order that the original application and statement of claim be set aside for want of jurisdiction of this Court.
On the following day, 18 December 1996, Swiss Aluminium and Gove Alumina filed a joint conditional appearance and on 14 January 1997 they filed a notice of motion seeking an order that the application and statement of claim be set aside on the ground that this Court has no jurisdiction in the matter.
By notice of motion dated 19 February 1997, the applicants moved the Court for an order that the applicants have leave to amend their application and statement of claim further in terms of annexures “O” and “P” to the affidavit of Jessica Klingender sworn on 19 February 1997. Putting to one side amendments that would be necessary to correct grammatical mistakes and the like and amendments that were described by counsel as “alternative ways of looking at the legal consequences”, the main thrust of those proposed amendments is two-fold. First they seek to meet the challenge that the respondents have made with respect to the question of jurisdiction. The applicants wished to insert the following paragraphs in the proposed further amended statement of claim:
“31. The Applicants rely on:
(a)section 19 of the Federal Court of Australia Act 1976 (Cth) and section 39B of the Judiciary Act 1903 (Cth) to bring the claims made at:
i)paragraphs 5C(c) and (d), 8(b), 8A, 11B-11C and 24A-24F (renewal made wrongfully without the instruction of the Minister of State for Territories of the Commonwealth and beyond power);
ii)paragraphs 5C(c) & (d), 8(b), 8A, 11B-11C, 18A, 25-25B and 27A-27B (failure to exercise power or duty);
(b)section 32 of the Federal Court of Australia Act or the accrued jurisdiction of the Federal Court to bring the claims identified at 33 below.
32.Alternatively, the Applicants rely on section 19 of the Federal Court of Australia Act, section 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT) and section 9(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) to bring the claims identified at 33 below.
33.For the purposes of Order 10A, Rule 5(1)(a) of the Federal Court Rules the Applicants rely on section 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NT) and section 9(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) to bring the claims made at:
(a)paragraphs 19 and 24 (renewal made in breach of fiduciary obligation);
(b)paragraphs 20 and 23 (renewal made in contravention of terms of SPL 215);
(c) paragraph 25 (entitlement to determine or forfeit SPL 215);
(d) paragraphs 26-28 (failure to exercise entitlement);
(e) paragraph 29 (loss and damage)
(f)paragraphs 16-18 and 22 (renewal prohibited by section 13 of the Land Rights Act).
PARTICULARS
The claims identified at paragraph 33:
(a)are Northern Territory matters within the meaning of section 3(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NT)
(b)form part of the original jurisdiction of the Federal Court by virtue of the combined effect of:
(i)section 4(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NT);
(ii) section 19 of the Federal Court of Australia Act;
(iii)section 9(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth);
34.For the purposes of Order 10A Rule 5(2) of the Federal Court Rules the claims identified at 31(a) above constitute a special federal matter for the purposes of section 6 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)
PARTICULARS
The claims made herein and the relief sought in the Further Amended Application rely on section 39B of the Judiciary Act being a matter within the original jurisdiction of the Federal Court and a special federal matter within the meaning of section 3(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)”
The second principle amendment that is sought by the applicants is to add, as an eighth respondent to the proceedings, the Honourable Austin Asche AC, QC. It is alleged in par 5C of the proposed further amended statement of claim that the Honourable Austin Asche, “holds the office of the Administrator of the Northern Territory”. That assertion was correct at the time when these proceedings were instituted on 25 November 1996. But Mr Asche’s term of office expired on 31 December 1996. He is not now the Administrator; he would not now or hereafter have power, as a matter of law, to implement any orders of this or any other Court in respect of the Territory Government - assuming for present purposes that the applicants would be successful in establishing one or more of their claims for relief. However, this matter can be put to one side for the time being until it is determined whether or not the Administrator should be joined as a party to these proceedings either by name or by title.
Later still, the applicants gave notice that they wished to make more amendments to the application and statement of claim; they wish to plead that the Administrator, when he considered whether he should exercise any power to renew SPL 215, was under a duty to act fairly to the applicants and to observe the requirements of procedural fairness and that, in breach of that duty (or those duties) the Administrator renewed SPL 215 without giving the applicants any opportunity to be heard in relation to the renewal or its effect upon the legitimate expectations of the applicants. I will refer to these proposed amendments as “the second set of proposed further amendments”, to distinguish them from those that are the subject of the notice of motion dated 19 February 1997.
Despite the plethora of unresolved interlocutory applications that are on the Court file, there are, for practical purposes, only three issues that need be resolved at this stage. The first two of those may be summarised as follows:
does this Court, in general terms, have jurisdiction to entertain these proceedings?
if it does, is it appropriate to name the Administrator as a respondent to the proceedings?
The applications by the Minister, the Territory and the Registrar to amend their appearance to a conditional appearance and to challenge the jurisdiction of the Court can be put to one side to await the outcome of the jurisdictional challenge that has been initiated by Swiss Aluminium and Gove Alumina. Subject to the twin issues concerning jurisdiction and the naming of the Administrator as an eighth respondent, the applicants’ application for leave to file and serve a further amended application and statement of claim was not otherwise opposed in principle save only for the question of costs.
DOES THE FEDERAL COURT HAVE JURISDICTION? SUBS 39B(1A) OF THE JUDICIARY ACT
The third issue concerns the recent amendment to s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). Argument on the first two mentioned issues was heard on 10 April 1997. Shortly after judgment had been reserved, on 17 April 1997, subs (1A) of s 39B of the Judiciary Act came into force. It provides as follows:
“(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a)in which the Commonwealth is seeking an injunction or a declaration; or
(b)arising under the Constitution, or involving its interpretation; or
(c) arising under any laws made by the Parliament.”
The parties did not seek to have the Court reconvene to hear further argument. They were content to present written submissions with respect to the effect of the amendment. I turn first to consider that question.
I consider that it is open to argument that the Land Rights Act, and in particular, ss 10, 12 and 13 has conferred rights upon the applicants with respect to the renewal of SPL 215. I also consider that those rights may be capable of being classified as a “matter” arising under a law made by the Commonwealth Parliament thereby investing original jurisdiction in this Court under par 39B(1A)(c). But does the amendment have retrospective effect so as to give this Court jurisdiction in respect of proceedings that were filed before the amendment came into force?
The applicants submitted that the amendment was procedural only and that it had a retrospective effect. They referred to and relied upon the decision of a Full Court of this Court in Walter John Bailey (No 1) Pty Ltd v Glass (1992) 36 FCR 290. In that case proceedings were instituted in 1986 alleging breach of contract and breach of s 52 of the Trade Practices Act 1974 (Cth) (“the TPA”). Subsequently the claim under the TPA was not pursued but the applicants were successful in obtaining damages for breach of contract. On appeal the original respondent argued that the trial judge lacked jurisdiction to hear and determine the matter and that he had erred in his conclusion that the pleaded cause of action under the TPA was not “colourable” in the sense of having been made for the improper purpose of “fabricating” jurisdiction in the Federal Court.
The Full Court in its joint judgment rejected this submission and rejected the further submission that the New South Wales cross-vesting legislation did not provide a source of jurisdiction. That legislation had come into force on 1 July 1988. Like the present case, proceedings had been instituted before the legislation came into force and, like the present case, the proceedings were heard and determined after the introduction of the legislation. In dealing with the effect of the introduction of the cross-vesting legislation the Full Court said:
“The statute does not affect substantive rights but simply enlarges the jurisdiction which this Court would otherwise posses to entertain a proceeding to vindicate such substantive rights. The statute is expressed in general terms: there is no express provision limiting its beneficial effects to proceedings commenced on or after 1 July 1988 and we see no reason why such a limitation should be implied.”(at 293-294)
I think that this passage applies with equal force and effect and is binding authority upon me. I therefore conclude that this Court has jurisdiction in this matter by virtue of subs 39B(1A) of the Judiciary Act.
DOES THE FEDERAL COURT HAVE JURISDICTION? THE CROSS-VESTING LEGISLATION
As the first step in arguing that this Court has jurisdiction under the cross-vesting legislation, Mr Berkley QC, counsel for the applicants, submitted that there should be a primary finding that this is a matter in respect of which the Supreme Court of the Northern Territory has jurisdiction. This was the prelude to the submission that the Federal Court has jurisdiction in this matter by virtue of the Territory’s and the Commonwealth’s cross-vesting legislation.
Subsection 14(1) of the Supreme Court Act 1979 (NT) provides as follows:
“(1)In addition to the jurisdiction conferred on it elsewhere by this Act, the Court -
(a) has jurisdiction
(i) ...
(ii)in a proceeding between the Territory, or a person suing or being sued on behalf of the Territory, and any other person, or a person suing or being sued on behalf of that other person; and
(iii)...
(b)...
(c)...
(d)...
(e)...
It seems to me to be clear that the Territory’s Supreme Court would have jurisdiction to hear and determine this matter; this is a proceeding “between the Territory and ... other person[s] suing ... the Territory” (sub-par 14)(1)(a)(ii)).
Mr Berkley then referred to and relied upon the definition of the term “Northern Territory matter” in the Territory’s cross-vesting legislation. In subs 3(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NT) a “Northern Territory matter” is defined as meaning (inter alia) a matter “in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth ...”.
As I interpret the legislation, a “matter” will be a “Northern territory matter” for the purposes of the Territory’s cross-vesting legislation unless the Supreme Court’s jurisdiction is derived exclusively from a law of the Commonwealth. The words “by reason of a law of the Commonwealth” are to be read, in my opinion, as meaning “by reason only of a law of the Commonwealth”. I am therefore satisfied that this is a “Northern Territory matter” for the purposes of the Territory’s cross vesting legislation.
It is true, as counsel for the applicants acknowledged, that s 67C of the Judiciary Act is also a source of general jurisdiction for the Territory’s Supreme Court. That section provides as follows:
“67C The jurisdiction of the Supreme Court of the Territory extends to:
(a)matters in which an injunction or declaratory order or writ of mandamus, prohibition or certiorari is sought by the Commonwealth against the Territory or an officer of the Territory;
(b)matters in which a writ or mandamus or prohibition or an injunction is sought against the Commonwealth or an officer of the Commonwealth, being matters arising in, or under the laws in force in, the Territory; and
(c)matters in which the Supreme Court of the Territory would, but for the repeal of the Northern Territory Supreme Court Act 1961, have jurisdiction by virtue of subsection 15 (2) of that Act.”
But even if it be assumed that s 67C is a source of jurisdiction for the Territory’s Supreme Court to hear these proceedings (as to which I need not express any opinion), it would not affect the matter if I am correct in concluding that the Supreme Court has jurisdiction under sub-par 14(1)(a)(ii) of the Supreme Court Act.
Once it is established that the Territory would have jurisdiction in these proceedings and that the proceedings are a “Northern Territory matter” it becomes necessary to consider the operation of the transfer provisions of the cross vesting legislation of the Territory and the Commonwealth. The relevant provision in the Territory’s legislation is subs 4(1). That subsection states that:
“The Federal Court has and may exercise original and appellate jurisdiction in respect of Northern Territory matters.”
That provision in the Territory’s legislation is complimented by subs 9(2) of the Commonwealth’s Jurisdiction of Courts (Cross-Vesting) Act 1987 which provides as follows:
“9(2)the Federal Court, the Family Court or the Supreme Court of a Territory may:
(a)exercise jurisdiction (whether original or appellate) conferred on that court by a provision of this Act or of a law of a State relating to cross-vesting of jurisdiction; and
(b)hear and determine a proceeding transferred to that court under such a provision.”
Paradoxically, Commonwealth legislation defines the word “State” as including the Northern Territory but the word “Territory” does not include the Northern Territory. There being no challenge in these proceedings to the power of the Territory and Commonwealth Legislatures to invest the Federal Court with such jurisdiction, I am of the opinion that this Court does have jurisdiction to hear and determine these proceedings by virtue of the Territory and Commonwealth cross-vesting legislation.
This finding is to be contrasted with the decision in Kodak (Australia) Pty Ltd v Commonwealth of Australia (1990) 22 FCR 197. In that case, Lockhart J was required to consider whether the Federal Court had jurisdiction to entertain proceedings for the recovery of sales tax that had been paid under protest. Subsection 12A(2) of the Sales Tax Procedure Act 1934 (Cth) (“the Sales Tax Procedure Act”) provided that a tax-payer who has paid an amount of sales tax under protest pursuant to s 12A of that Act may, within six months after the date on which the amount was paid, bring an action “in any Commonwealth or State Court of competent jurisdiction for the recovery of the amount so paid”. The tax-payer having brought proceedings in the Federal Court, the Commonwealth moved successfully to have the proceedings dismissed for want of jurisdiction. Relying upon earlier decisions in Parsons v Martin (1984) 5 FCR 235 and Edwards Hot Water Systems v SW Hart & Co Pty Ltd (1985) 9 FCR 537, his Honour noted (at 199) the distinction between establishing “the mechanism for the Court’s exercise of jurisdiction” on the one hand and “the source of that jurisdiction” on the other. His Honour was of the opinion that the term “Commonwealth or State Court of competent jurisdiction” in subs 12A(2) of the Sales Tax Procedure Act recognised “the jurisdiction which might be invested in the Federal Court from any other statutory source, but is not itself an independent source of jurisdiction” (at 202). (It was common ground during argument in Kodak’s case that no statutory provision other than subs 12A(2) was apt to invest the Federal Court with jurisdiction). His Honour also considered whether the New South Wales cross-vesting legislation might be available to confer jurisdiction upon the Federal Court. In parallel with the Territory’s legislation, the New South Wales statute gives the Federal Court jurisdiction with respect to a “State matter”, a term that is defined to mean a matter in which the Supreme Court of New South Wales has jurisdiction “otherwise than by reason of a law of the Commonwealth or of another State”. Lockhart J was of the opinion however, that the Supreme Court’s only source of jurisdiction was subs 39(2) of the Judiciary Act. That lead to the conclusion that the Supreme Court only had jurisdiction by virtue of a law of the Commonwealth; proceedings instituted in the Federal Court under subs 12A(2) of the Sales Tax Procedure Act could not therefore be classified as a “State matter”.
The feature that distinguishes Kodak’s case from the present proceedings is subs 14(1) of the Territory’s Supreme Court Act. It is the additional source of jurisdiction that was missing in Kodak’s case. I do not consider that this conclusion is at variance with the views expressed by Barwick CJ and Walsh J in Felton v Mullighan (1971) 124 CLR 367 at 373 and 412. In that case Barwick CJ said:
“In this connexion, I agree with my brother Walsh’s analysis of the case law and with his view of the opinions expressed in the decided cases to which he refers. I further agree with the view that if federal jurisdiction is attracted at any stage of the proceedings, there is no room for the exercise of a State jurisdiction which apart from any operation of the Judiciary Act the State court would have had.”
In my opinion the passage quoted merely acknowledges the paramountcy of Commonwealth law where there are competing claims to the source of jurisdiction. Section 67C of the Judiciary Act does not, however, create any such competition, it merely identifies areas of the jurisdiction of the Territory Supreme Court.
DOES THE FEDERAL COURT HAVE JURISDICTION? IS THE ADMINISTRATOR AN OFFICER OF THE COMMONWEALTH?
The applicants, whilst acknowledging that the Administrator could never be classified as an officer of the Northern Territory, nevertheless submitted that the person holding that office is and should be treated as an officer of the Commonwealth. Should that be correct then this Court would, so it was claimed, have jurisdiction by virtue of the provisions of subs 39B of the Judiciary Act and it would not be necessary to rely on the cross-vesting legislation. That subsection states that the original jurisdiction of this Court includes “jurisdiction with respect to any matter in which a writ or mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth” The circumstances surrounding the office of the Administrator are conveniently summarised in an affidavit of Zoe Marcham who was employed as the Official Secretary to the Administrator from September 1991 to January of this year. Factors that might be regarded as pointing to the Administrator being an officer of the Commonwealth include the following: the Administrator is appointed by, and holds office during the pleasure of, the Governor-General: subs 32(1) of the Self Government Act. In addition, the Administrator is to “exercise and perform [certain other] powers and functions” of office “in accordance with such instructions as are given to him by the [Commonwealth] Minister”: subs 32(3). The Administrator’s salary is paid by the Commonwealth and since about 1994, the Commonwealth Government has paid the airfares for the Administrator and the spouse of the Administrator to travel from Darwin to Canberra and return twice yearly if the Administrator is on officially approved Commonwealth business.
The factors just stated can be hallmarks that might qualify the Administrator as an officer of the Commonwealth: see The Commonwealth Court of Conciliation and Arbitration and The President Thereof and The Australian Tramway Employees Association (The Tramways case [No 1] (1914) 18 CLR 54 at 79 per Isaacs J:
“I come now to sec 75(v) itself. The crucial words for this purpose are ‘officer of the Commonwealth’. No one could of course deny that a Judge holds an office, and when directly appointed by the Commonwealth, and accepting his office and salary from and removable by the Commonwealth, he is an officer of the Commonwealth.”
In Trimbole v Dugan (1984) 3 FCR 324, Woodward J came to the conclusion that a State appointed Magistrate was not an “officer of the Commonwealth” within the meaning of s 39B of the Judiciary Act. His Honour was of the opinion that the granting of an authorisation by the Commonwealth Attorney-General to perform a particular act did not convert an officer of a State into an officer of the Commonwealth. He relied on a passage from the judgment of Isaacs J in R v Murray and Cormie and Others (1916) 22 CLR 437 at 452 where it was said that the phrase “officer of the Commonwealth” “connotes an ‘office’ of some conceivable tenure, and connotes an appointment, and usually a salary”.
In the present case, there are other factors, which in my opinion, militate against a finding that the Administrator is an officer of the Commonwealth - at least in the performance of the functions relative to the renewal of SPL 215. According to the affidavit of Ms Marcham, the Territory Government pays the salaries and operational costs associated with running Government House and the Office of the Administrator. In addition the Territory Government is responsible for paying the Administrator’s pension under the Administrators’ Pension Act 1981 (NT). But even though the duties of the Administrator may involve the Administrator in carrying out functions which might conceivably be described as functions of an officer of the Commonwealth (as to which no evidence was led other than what has been summarised from the affidavit of Ms Marcham) it is, in my opinion, clear that when Mr Johnston executed the renewal of SPL 215 in 1989, he did so as a functionary of the Territory and not as a functionary of the Commonwealth. Undoubtedly, an aspect of these proceedings involves a matter arising under the Land Rights Act. But, the powers and functions that were being exercised by the Administrator when the event of renewal of the lease occurred were functions and powers that were derived by the Administrator from Territory Law. The Administrator was operating as a functionary of the Territory Government; he was not, in any way, associated with the Commonwealth when he participated in the act of renewal.
If, however, I am wrong and the Administrator is an officer of the Commonwealth I remain unconvinced that the Administrator, either by name or by title, should be joined as a respondent in these proceedings. The office of the Administrator of the Territory was established by s 32 of the Self-Government Act. Under subs (2) of that section, the person holding office from time to time is “charged with the duty of administering the government of the Territory”.
Section 31 of the Self-Government Act sets out the extent of executive power. It states:
“31.The duties, powers, functions and authorities of the Administrator, the Executive Council and the Ministers of the Territory imposed or conferred by or under this Part extend to the execution and maintenance of this Act and the laws of the Territory and to the exercise of the prerogatives of the Crown so far as they relate to those duties, powers, functions and authorities.”
The Administrator of the Territory is the representative of the Crown in the Territory: R v Toohey; Ex parte Northern Land Council (1980-1981) 151 CLR 170 at 266per Aickin J and at 279 per Wilson J: but see Gibbs CJ at 185-186 contra. It would not therefore be appropriate to describe the Administrator as an officer of the Crown in right of the Territory. In addition, the Territory would seek to argue that even if the Administrator were not the representative of the Crown in right of the Territory, the person holding that office would still be the head of government in relation to the Territory body politic. As a consequence, on principles of responsible self-government, it was submitted that the Administrator, in performing any functions in relation to SPL 215 would therefore act on the advice of his or her ministers in the Territory Executive Council.
The relief that the applicants seek in these proceedings against the Administrator, or against two or more respondents, one of whom is the Administrator, is as follows:
a declaration that the purported renewal of SPL 215 was made
- in contravention of s 13 of the Land Rights Act and
- contrary to the terms of SPL 215
a declaration that the Administrator acted beyond power in making the purported renewal
a declaration that the Administrator is or has been entitled to determine or forfeit SPL 215 and is or has been under a fiduciary obligation to the Arnhem Land Aboriginal Land Trust to exercise an entitlement to determine or forfeit the lease
orders in the nature of mandamus, requiring the Administrator to cancel SPL 215 or, alternatively, to cause to be served on Swiss Aluminium and Gove Alumina a notice determining SPL 215
in the further alternative, an order (also in the nature of mandamus) requiring the Administrator to seek the advice and instructions of the Minister of State for Territories of the Commonwealth on the question of determining SPL 215
orders (once again in the nature of mandamus) requiring the Administrator, either to seek the consent of the Northern Land Council to the renewal of SPL 215 or to reconsider the question of its renewal according to law.
The terms of SPL 215 follow the traditional form of a Crown Lease. It commences:
“ELIZABETH THE SECOND, by the Grace of God, of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith:
To all to whom these presents shall come -
Greeting:”
As has been earlier stated, it was executed by the then Commonwealth Minister of State for the Interior. The lease contains numerous references to “the Administrator” who is defined in the lease as meaning:
“‘the Administrator’ means the Administrator of the Territory appointed under the Northern Territory (Administration) Act 1910-1968 or the person for the time being duly appointed pursuant to that Act to act in the office of Administrator or the holder for the time being of, or the person for the time being performing the duties of, any office in substitution for the office of Administrator”
Some of the more important discretionary powers that were vested in the Administrator under the terms of SPL 215 are as follows:
the power to waive penalty interest in respect of late payment of rent
the power to waive the lessees’ obligation to remove the construction camp upon the expiration of the term of the lease.
In addition there are restrictions on the lessees whereby they can only act with the approval of the Administrator. For example, the lessees are not to make any additions to the construction camp except in accordance with plans approved by the Administrator. Another example relates to a reduction in the area of the land that is the subject to the lease. This reduction was relative to the ultimate needs of the lessees for the accommodation of the construction camp and purposes ancillary thereto; the lease called for the Administrator to be satisfied as to the ultimate area.
The case for the applicants is that the option to renew SPL 215 was subject to various conditions, all of which had to be complied with strictly before the Administrator could exercise his powers in favour of Swiss Aluminium and Gove Alumina. For example, there was an obligation on the lessees to “establish to the satisfaction of the Administrator that they have a reasonable need to have the lease extended”. Independently of, and in addition to any contractual obligations to renew SPL 215, the power of the Administrator to consider any application for a renewal of the lease and to grant such a renewal, should he or she be satisfied that all conditions precedent have been satisfied, is conferred by subs 9(1) of the Gove Peninsula Ordinance. That subsection provides that a specified person has:
“by reason of this section, such power as is necessary to be conferred on him in order to enable him to do an act or thing which -
(a) he is, under the Agreement or a lease, required or permitted to do; and
(b)it is necessary for him to do in order to give effect to the Agreement or a lease according to its terms.”
The “agreement” that is referred to in the subsection is that made between the Commonwealth and Nabalco on 22 February 1968 and a “specified person” is defined in subs 9(2) of the ordinance as meaning “... a person, being the Commonwealth, the Minister or the Administrator, specified in the Agreement or a lease as the person who shall or will or may do that act or thing”.
In pressing for the joinder of the Administrator as an additional respondent, the applicants have relied upon the contents of the affidavit of Marlene Anna Cook Powell, the secretary to the Executive Council of the Northern Territory. In pars 4 and 5 of her affidavit, Ms Powell deposed in these terms:
“4.I can say from my personal knowledge that on 4 January 1989 a submission was presented to the Northern Territory Executive Council by the Minister for Mines and Energy that the Administrator, Eric Eugene Johnston, be advised to renew Special Purposes Lease No 215 for a term of 20 years from the date of termination of that lease pursuant to condition (c) of the mutually agreed conditions contained in that lease.
5.The Executive council submission was submitted to the Administrator who executed the instrument of renewal on 4 January 1989, countersigned by the Minister for Mines and Energy.”
It was submitted on behalf of the applicants that this statement may afford evidence that the right to renew SPL 215 was treated as part of the executive power of the Territory and that the Administrator should have, but did not, personally directed his mind to the issue. In other words the applicants seek to argue that the Administrator inappropriately acted on the advice of his Minister and did not have the requisite personal satisfaction that was required under the terms of SPL 215. The Territory proposes to meet this argument head on. The argument that the Territory would seek to advance is that the question of the renewal of SPL 215 was, since the grant of self-government, a matter in respect of which the Ministers of the Territory have executive authority. Should that be correct then the next proposition would be that the Administrator, when renewing the lease, was entitled to and did rely on the advice of the Territory Executive Council. The applicants claim that there is an answer to that argument. That answer, so it was said, is to be found in the provisions of s 35 of the Self Government Act and the regulations made under the Act. Section 35 states that the regulations may specify “the matters in respect of which the Ministers of the Territory are to have executive authority”. Those matters are listed in reg 4 and they include “Land, public and private (including internal waters)” and “Land use, planning and development”. The applicants rely upon the provisions of sub-reg 4(2)(b) in support of their proposition that the executive authority of the Ministers of the Territory would not have applied to the purported renewal of SPL 215. That sub-regulation states that, subject to certain matters (none of which seem to apply in the instant case) the matters that are specified in reg 4 shall not be construed as including or relating to:
“(a) ...
(b)rights in respect of Aboriginal Land under the Aboriginal Land Rights (Northern Territory) Act 1976.”
It is not appropriate for me to express a concluded view on that proposition; that will be a matter for the trial judge. It is sufficient to find, as I do, that the argument is neither fanciful nor specious. Paragraph (b) refers to “rights” in respect of “Aboriginal Land”. It is open to argument that a renewal of a lease would be such a “right” and “Aboriginal Land” being defined in the Land Rights Act as including “land the subject of a deed of grant held in escrow by a Land Council”, it could therefore be argued that the leased lands were “Aboriginal Lands” for the purpose of sub-reg 4(2).
The case for the applicants was based upon the premise that, in renewing the lease, the Administrator was not acting merely as a servant of the Crown; rather, so it was said, he was charged with the performance of a statutory duty that affected, not only the rights of Swiss Aluminium and Gove Alumina, but also the rights of the applicants: he had to be personally satisfied that the lessees had established their reasonable need to have SPL 215 extended and, as such, he was acting as a “persona designata”: c.f. G H Michell & Sons (Australia) Pty Ltd v Minister of Works (1974) 8 SASR 7 at 14 per Bray CJ and Re Federal Commissioner of Taxation; Ex parte Just Jeans Pty Ltd (1986) 65 ALR 147 at 152 per Northrop J.
The applicants submit therefore that mandamus should lie against the Administrator (whomsoever he or she may be at any given time). They also advance the possibility that, although the Administrator of the day may not have considered the question of the renewal of SPL 215 personally, the trial may nevertheless show that there was some evidence that could have been used by Swiss Aluminium and Gove Alumina to establish the existence of their reasonable need to the Administrator. Should such an event transpire, then the applicants submit that the only remedy that would be available to them would be to seek an order sending the matter back to the Administrator of the day for his or her personal consideration. These problems would not, of course, arise if the result of the trial was a declaration that the purported renewal was void. If such a declaration were made, no question would arise with respect to a reconsideration of the matter, nor would there be a need to consider the identity of the party who might otherwise have the responsibility of such a reconsideration. Furthermore, no problem would arise if the final decision was that the renewal was valid. It is the possibility that the matter may have to be the subject of further consideration that is said to be the circumstance that dictates the need for the Administrator, as a persona designata, to be joined as a respondent in the proceedings.
It may be observed that the functions and powers of the Administrator as set out in SPL 215 are of such a nature that one could equally expect to see them vested in a Minister of the Crown. In such a case, the degree of personal involvement that is contemplated by the terms of the lease could lead to a conclusion that the relevant Minister would be acting as a persona designata and in such a case, mandamus would lie. Be that as it may, the fact remains that it was the Administrator - not a Minister - who was invested with these discretionary powers and functions.
Although the High Court in R v Toohey: Ex parte Northern Land Council contemplated circumstances in which bad faith and improper motives could be alleged against the Crown (see Aronson & Dyer: Judicial Review of Administrative Action 1996 at 780), FAI Insurances Ltd v Winneke (1982) 151 CLR 342 remains authority for the proposition that it is improper to seek declaratory relief against the Governor or the Governor in Council. In that case the majority were of the view that the Attorney-General - representing the Governor - was the appropriate defendant. In this case that conclusion would also seem to be the appropriate course, unless the Crown Proceedings Act 1993 (NT) affords a more efficient answer. Section 5 of that Act authorises the institution of proceedings by or against the Crown and, as has already been stated, proceedings brought against the Territory Crown may be brought under the name “Northern Territory of Australia”. In my opinion, the better answer is that submitted by the applicants in their written submissions in reply - there is no need to join the Attorney-General as the Northern Territory is already a respondent. Despite the apparent force of the applicants’ submissions, I cannot see how they can circumvent the decision of the High Court in FAI Insurances v Winneke. As a consequence, it seems to me that the correct position is to deny the applicants’ claim to include the Administrator as the eighth respondent. That leaves for consideration the state of the pleadings. At first I was inclined to grant leave to the applicants to file and serve their proposed further amended statement of claim and their second set of proposed further amendments with further amendments to delete any reference to the Administrator. On reflection however, I have concluded that such a proposition might breed more controversy. I think that it would be better for the applicants to start afresh. Accordingly there will be an order dismissing the applicants’ Notice of Motion. They can apply for leave to file and serve a further amended statement of claim.
CROSS-VESTING TO THE TERRITORY SUPREME COURT
All respondents submitted that if I should come to the conclusion that this Court, for any reason, has jurisdiction to entertain these proceedings, I should nevertheless cross-vest them to the Supreme Court of the Territory. As I have concluded that but for the recent introduction of subs 39B(1A) of the Judiciary Act, this Court would only have had jurisdiction by virtue of the provisions of the Territory and Commonwealth cross-vesting legislation, it is appropriate to have regard the provisions of par 5(4)(b) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and to the three criteria that are there set out when considering any question of cross-vesting. The first of these deals with the existence of related proceedings. That criteria need not be considered as there are no other connected proceedings in the Territory Supreme Court. Secondly, this Court in determining whether to transfer the proceedings to the Territory Supreme Court, is required to have regard to whether but for the cross-vesting legislation this Court would have had jurisdiction. That has ceased to be material since the amendment to the Judiciary Act. As part of the second criteria, this Court is also to have regard to the extent to which the matters for determination are matters arising under or involving questions as to “the application, interpretation or validity of a law” of the Territory. Finally, this Court is to have regard to “the interests of justice”.
The respondents submitted that this Court should have regard to a variety of matters when considering “the interests of justice”. They included factors such as:
the land is wholly in the Territory
the enterprise which is the subject of the lease is wholly in the Territory
the original lease and the renewal of it is now held from the Territory and administered by the Territory
the applicants and the respondents are either Territory residents, incorporated in the Territory or carry on business in the Territory.
I do not suggest that these are matters of no consequence; on the contrary they are to be borne in mind. But I find them rather lacking in substance. I would be more interested in factors that demonstrate, as a matter of fact or law, that the interests of justice positively call for the matter to be determined by one Court in preference to another. The factors upon which the respondents rely support the Territory “flavour” of the litigation but I fail to see how the interests of justice would be adversely affected if the Federal Court heard and disposed of the matter.
It must, of course, be recognised that in the ultimate determination of this matter an important issue will be the factual review of the events leading up to the grant of the renewal of SPL 215; that will be coupled with an assessment of the relevant provisions of the lease, the agreement, the Gove Peninsula Ordinance and other relevant Territory Legislation such as the Special Purposes Lease Act 1979 and the Mining Act 1980 (NT). All of those issues have an obvious Territory “flavour”. Furthermore, there could be a finding that the renewal of the lease was void and that would bring about an abrupt end to the matter without any excursus into Commonwealth Legislation. Even if there were a decision that the matter were to be the subject of a fresh appraisal by the Territory Crown, the involvement of either of the applicants by virtue of the Land Rights Act would be minimal. Only if there were to be a finding that the renewal was prima face valid, would it become necessary to consider the operation of the Land Rights Act. So expressed, it can be seen that this action could more appropriately be defined as a Territory matter.
In Lamshed v Lamshed (1992) 35 FCR 111 at 113 I came to the conclusion that if it appears to this Court that one or other of the three criteria is present, the Court will be obliged - it will not merely retain a discretion - to make the order of transfer. I adhere to that view. On the other hand, one must not loose sight of the fact that when these proceedings were instituted, the applicants had locus standi only by virtue of Commonwealth legislation; it is the Land Rights Act that gave the Arnhem Land Aboriginal Land Trust the grant in fee simple over lands which include the leased lands and it is that same legislation that created a regime under which the Northern Land Council would hold the land grant in escrow pending the expiry of other prior interests. In other words, although the Commonwealth legislation does not make a specific grant of jurisdiction in favour of the Federal Court, it was then and still is the source of the applicants’ right to institute these proceedings. The presence of this factor does not however, seem to achieve recognition in the cross-vesting legislation as a matter to be taken into account, save perhaps when considering “the interests of justice”.
Were it not for the recent amendments to s 39B of the Judiciary Act, I would have come to the conclusion, “having regard to” the limited source of this Court’s jurisdiction and the Territory “flavour” of the litigation, that this Court should transfer the proceedings to the Territory Supreme Court. As it is, this Court now has jurisdiction independently of the cross-vesting legislation and the Territory “flavour” of the litigation does not now have the same importance in the sense that many proceedings in the Federal Court have a strong connection with a particular state or territory. The respondents’ notices of motion challenging the jurisdiction of the Court are therefore dismissed. I also dismiss the notice of motion filed on behalf of the first, second and fifth respondents in which they sought leave to file and serve a conditional appearance.
I will hear the parties on costs and any other consequential orders. Any party is at liberty to bring the matter back on for further consideration on seven days notice.
I certify that this and the preceding twenty-seven (27) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin
Associate:
Dated:
Counsel for the Applicants: Mr H Berkley QC with Mr Glacken Solicitor for the Applicants: Northern Land Council Counsel for the first, second and fifth Respondents: Mr T Riley QC with Ms R Webb Solicitor for the first, second and fifth Respondents: Solicitor for the Northern Territory Counsel for the third and fourth Respondents Mr A Robertson SC Solicitors for the third and fourth Respondents Corrs Chambers Westgarth
CridlandsDate of Hearing: 10 April 1997 Date of Judgment: 3 October 1997
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