Clodumar v Nauru Lands Committee

Case [2012] HCA 22

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON AND BELL JJ

KINZA CLODUMAR  APPELLANT

AND

NAURU LANDS COMMITTEE & ORS  RESPONDENTS

Clodumar v Nauru Lands Committee

[2012] HCA 22

Date of Order:  20 April 2012
Date of Publication of Reasons:  20 June 2012

M37/2011

ORDER

1.Extension of time allowed to enable this Court to hear and determine this appeal.

2.Appeal allowed.

3.Civil Action No 16/2000 is remitted to the Supreme Court of Nauru for retrial.

4.The costs of the proceedings so far in the Supreme Court in Civil Action No 16/2000 to be in the discretion of that Court.

5.The first respondent is to pay the appellant's costs of this appeal.

On appeal from the Supreme Court of Nauru

Representation

D J Williams SC with L D D Keke for the appellant (instructed by Leo D. Keke, Solicitor and Notary Public)

R M Niall SC with K L Walker for the first respondent (instructed by Department of Justice and Border Control)

No appearance for second respondents

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Clodumar v Nauru Lands Committee

High Court of Australia − Original jurisdiction − Matter arising under laws made by Parliament − Appeal from Supreme Court of Nauru pursuant to s 5 of Nauru (High Court Appeals) Act 1976 (Cth) − Supreme Court of Nauru held that transfer of land to appellant was invalid because President of Nauru had not approved transfer − After conclusion of proceeding in Supreme Court of Nauru appellant discovered document bearing President's signature and approving transfer to appellant − Whether fresh evidence can be received on appeal to High Court from Supreme Court of Nauru − Whether appellant could have discovered document by exercise of reasonable diligence at time of proceeding in Supreme Court of Nauru.

Words and phrases – "appeal", "fresh evidence", "original jurisdiction".

Constitution, s 76(ii).
Nauru (High Court Appeals) Act 1976 (Cth), s 5.

FRENCH CJ, GUMMOW, HAYNE AND BELL JJ.

Introduction

  1. This appeal, which required the grant of an extension of time, was brought in the original jurisdiction of this Court against a decision of the Supreme Court of Nauru, delivered on 19 February 2002[1]. The jurisdiction is conferred on this Court by s 5 of the Nauru (High Court Appeals) Act 1976 (Cth) ("the Nauru Appeals Act"). The decision of the Supreme Court effectively dismissed a challenge brought by the appellant to a decision of the Nauru Lands Committee ("the Committee") relating to land in which the appellant claimed an interest as an inter vivos transferee from their deceased owner. The Committee was established by the Nauru Lands Committee Act 1956 (Nauru) ("the Lands Committee Act").  It has power to determine "questions as to the ownership of, or rights in respect of, land"[2]. 

    [1]Clodumar v Nauru Lands Committee, unreported, Civil Action No 16/2000, Supreme Court of Nauru, 19 February 2002.

    [2]Nauru Lands Committee Act 1956 (Nauru), s…

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Details
AGLC
Clodumar v Nauru Lands Committee [2012] HCA 22
Case
[2012] HCA 22
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of Nauru concerning the validity of a land transfer. The appellant, Mr Clodumar, claimed that certain lands had been transferred to him in 1999 by Mr Rick Burenbeiya. However, the Nauru Lands Committee had subsequently determined that Mr Burenbeiya's widow was a beneficiary of his estate in relation to those lands, and a distribution was made accordingly. The Supreme Court of Nauru had previously held that the transfer to the appellant was invalid because it lacked the necessary written approval from the President of Nauru, as required by section 3 of the Lands Act 1976 (Nauru).

The legal issues before the High Court were whether it could receive fresh evidence on an appeal from the Supreme Court of Nauru, whether an extension of time should be granted for the appeal, and whether the specific fresh evidence sought to be admitted – a document bearing the President's signature approving the transfer – should be received. The appellant sought to rely on a document discovered after the Supreme Court proceedings, which he contended constituted the required Presidential Approval.

The High Court reasoned that, by analogy with common law procedures, it had the power to receive fresh evidence on such an appeal, provided it met the criteria for new evidence. This included demonstrating that the evidence was not inherently improbable, was likely to be decisive, and could not have been discovered by the exercise of reasonable diligence at the time of the original hearing. The Court found that the discovered document, which was not disputed as to its authenticity, was cogent evidence. Furthermore, the circumstances surrounding its concealment by a government minister at the time meant that its existence could not have been discovered by the appellant through reasonable diligence prior to the Supreme Court proceedings.

Consequently, the High Court allowed the appeal, granted an extension of time, and remitted the matter to the Supreme Court of Nauru for a retrial. The Court ordered that the costs of the proceedings in the Supreme Court of Nauru would be at the discretion of that Court, while the first respondent was ordered to pay the appellant's costs of the appeal to the High Court.

Orders

Orders of the court

1. Extension of time allowed to enable this Court to hear and determine this appeal.

2. Appeal allowed.

3. Civil Action No 16/2000 is remitted to the Supreme Court of Nauru for retrial.

4. The costs of the proceedings so far in the Supreme Court in Civil Action No 16/2000 to be in the discretion of that Court.

5. The first respondent is to pay the appellant's costs of this appeal.

Background

Background to the litigation

On 20 April 2012, this Court granted the appellant the necessary extension of time, allowed the appeal and remitted the proceedings to the Supreme Court of Nauru for retrial. The reasons for that decision follow.Factual and procedural background The appellant is a citizen and former President and Minister of the Republic of Nauru. He commenced proceedings in the Supreme Court of Nauru in 2000. He claimed injunctive relief against the Committee to prevent it from giving effect to its decision published in the Government Gazette of 12 July 2000 concerning the ownership of land described as one half of the lands known as "Dabodine" Portion 5 and "Iro" Portion 30, both at Yaren ("the disputed lands"). The appellant asserted that the disputed lands had been transferred to him in or about April 1999 by the late Mr Rick Burenbeiya, who died on 11 June 1999. Under s 3 of the Lands Act 1976 (Nauru) ("the Lands Act") the consent in writing of the President of Nauru ("Presidential Approval") is necessary to the transfer of any interest or estate in land in Nauru. Absent such consent the transfer is "absolutely void and of no effect"[3].[3]Lands Act, s 3(4). The appellant gave evidence on affidavit in the proceedings in the Supreme Court that "as a matter of course and of tradition and practice" the Committee acts on behalf of Naurans who want to transfer ownership of lands and applies to the President, on their behalf, for consent. That was not a statutory function of the Committee. On 13 April 1999, Mr Burenbeiya had written to the Committee asking it to "process for approval" the transfer of his half share in the disputed lands to the appellant. By a notice published in the Government Gazette of 20 October 1999, the Committee stated that it had ascertained that Mr Burenbeiya had been determined by previous decisions of the Committee to be the owner of lands which included the disputed lands. By the same notice, the Committee determined that Mr Burenbeiya's widow was a beneficiary of his estate in respect of those lands. On Mrs Burenbeiya's death, the Committee, apparently in the exercise of its statutory function, determined a distribution of her estate in relation to a number of pieces of land, including the disputed lands. That determination first appeared in Government Gazette Notice 209/2000 dated 12 July 2000 and listed a number of people as beneficiaries of the estate. The appellant commenced two related proceedings in the Supreme Court on 9 August 2000. The first, Action No 16/2000, named the Committee as the defendant.The second, Action No 17/2000, named the Curator of Intestate Estates as the defendant. On 10 August 2000, the Chief Justice issued an interlocutory injunction in Action No 16/2000 restraining the Committee from taking any action to implement its decision of 12 July 2000. It was not in dispute that the proceedings against the Committee in Action No 16/2000 were not by way of an appeal to the Supreme Court against a decision of the Committee. Under the law of Nauru no appeal would lie to this Court from a decision of the Supreme Court on such an appeal[4].[4]Appeals Act 1972 (Nauru), s 45(d).

Evidence

Evidence Before The Court

The issues on this appeal were: 1.Whether this Court could receive fresh evidence on an appeal from the Supreme Court of Nauru.2.Whether the Court should grant the extension of time necessary to allow the appellant to proceed with his appeal. 3.Whether the Court should receive the evidence of the Presidential Approval now relied upon by the appellant. The fresh evidence Before considering the issues, it is convenient to have regard to the evidence which this Court is now asked to receive. In an affidavit sworn on 18 May 2011 the appellant said that at the time of the hearing before Connell CJ the Committee informed the Court that there had been no Presidential Approval granted for the transfer of the disputed lands to the appellant. According to Mr Lambourne's affidavit, there was no record on the Court file or in the primary judge's notes that any representative of the Committee had so informed the Court. Mr Adam had died before Mr Lambourne could speak to him. The appellant said that he and his lawyer had tried, prior to the proceeding in the Supreme Court, to inspect government files relating to the transfer but were told by a legal representative of the Committee that if there was any such file it had been lost. The appellant exhibited to his affidavit the documents which, he said, had been given by Mr Ekwona on 22 March 2011. Among those documents were copies of signed approvals of transfers including an approval executed by the President on 21 May 1999. The document contained a recommendation for approval of certain transfers, including a transfer by Mr Rick Burenbeiya of "his share of coconut bearing lands to Mr Kinza Clodumar at folio 74". The appellant stated his belief that the document was a true copy of a genuine Presidential Approval. The Committee did not dispute its authenticity. The history of the document and an explanation for its unavailability appeared from an affidavit sworn on 7 December 2011 by Mr Namaduk, who was a Minister in the Cabinet of President Harris in May 1999. He recalled that there was considerable public discussion at the time of the need to regulate land transfers in Nauru. He also recalled the day upon which the approval for the transfer of the disputed lands was signed by the President. The appellant himself was a member of the Cabinet at the time, but did not attend the Cabinet meeting during discussions relating to the transfer. After approving the transfer among others, the President gave Mr Namaduk a file containing the approvals which he had signed. He asked Mr Namaduk to look after the file until Cabinet had completed its discussions on further regulation of such transfers. Mr Namaduk placed the file in his office and did not disclose its existence to other members of the Cabinet including the appellant. The file remained in Mr Namaduk's office until President Harris' government lost office following its defeat on the floor of the Parliament in April 2000. Mr Namaduk then vacated his ministerial office and took with him boxes containing files, including the file relating to the transfer approvals which had been given to him by the President. In or about November 2011, following an approach from the appellant's solicitor, Mr Namaduk located the file.

Decision

Reasons for decision

FRENCH CJ, GUMMOW, HAYNE AND BELL JJ HEYDON J (dissent)
It is not necessary for present purposes to explore the limits of that power in an appeal against a decision of the Supreme Court of Nauru in its original jurisdiction. It suffices to say that the procedures of the common law courts[21] provide an appropriate analogy and that this Court can receive evidence, properly characterised as fresh evidence, for the purposes of such an appeal. Acknowledging the variations of phraseology which have been used, Dixon J in Orr v Holmes[22] said: "The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable."Further, the applicant for a new trial must show that no reasonable diligence upon his part would have enabled him or her to adduce the evidence upon the former trial[23].[21]CDJ v VAJ (1998) 197 CLR 172 at 184-185 [51], 196-199 [95]-[100]; [1998] HCA 76.[22](1948) 76 CLR 632 at 642; [1948] HCA 16.[23](1948) 76 CLR 632 at 644 per Dixon J. Conclusion The affidavit evidence relied upon by the appellant to support a finding that the requisite presidential approval had been given to the transfer of the disputed lands to the appellant was able to be received and was received in this Court. The evidence was not inherently improbable. On the face of it, it was evidence of some cogency. If accepted on a retrial in the Supreme Court, it would be very likely to determine the outcome of the civil proceedings commenced in that Court in 2000. Having regard to the circumstances in which the Presidential Approval was, in effect, concealed by a Minister of the Government at the time on the instructions of the President, the existence of the Presidential Approval could not have been discovered with the exercise of reasonable diligence on the part of the appellant prior to the hearing in the Supreme Court in 2000. For the preceding reasons, the appeal was allowed and the matter remitted to the Supreme Court of Nauru for further hearing and determination. There was no practical benefit in setting aside the orders made by Connell CJ. By implication, although not in terms, his Honour had dismissed the application for final injunctive relief. Although the interlocutory injunction against the Committee was discharged, no formal order dismissing the substantive application was made. The order of the Court was:1.Extension of time allowed to enable this Court to hear and determine this appeal.2.Appeal allowed. 3.Civil Action No 16/2000 is remitted to the Supreme Court of Nauru for retrial.4.The costs of the proceedings so far in the Supreme Court in Civil Action No 16/2000 to be in the discretion of that Court.5.The first respondent is to pay the appellant's costs of this appeal. This is an appeal against a decision of the Supreme Court of Nauru (Connell CJ) given on 19 February 2002. The decision related to an attempted transfer of certain lands. Connell CJ held that the attempted transfer was ineffective because the President of the Republic of Nauru had not approved the transfer. The appellant seeks to tender on the appeal a recently located document expressing a Presidential approval.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE AND BELL JJ,

Full text does not contain this section.