Clodumar v Nauru Lands Committee

[2012] HCATrans 94

[2012] HCATrans 094

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M37 of 2011

B e t w e e n -

KINZA CLODUMAR

Appellant

and

NAURU LANDS COMMITTEE

First Respondent

JANELLA ATSIME AND ARAMWIT DEDUNA AND BRODINE DEDUNA AND JASON DEDUNA AND JENA DEDUNA AND DENEIY DEDUNA AND DORA DEPAUNE AND DOREEN ADAMUR (EST) AND RABWIDO DEDUNA AND RUBBER DEDUNA AND BRIDELIA EDWARD AND PAULINA HARRIS AND JAYLEEN MENKE AND JURAN SCOTTY AND GEORGE TAGAMOUN AND DORIS CALEB AND BELINDA TAGAMOUN AND ANGELLA TAGAMOUN AND JOHN TAGAMOUN AND WAYNE TAGAMOUN AND JAMIESON TAGAMOUN AND VICTOR TAGAMOUN

Second Respondents

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 20 APRIL 2012, AT 10.03 AM

Copyright in the High Court of Australia

____________________

MR D.J. WILLIAMS, SC:   May it please the Court, I appear with my learned friend, MR L.D.D. KEKE, for the appellant.  (instructed by Leo D. Keke, Solicitor and Notary Public ‑ Yaren NCD)

MR R.M. NIALL, SC:   May it please the Court, I appear with my learned friend, MS K.L. WALKER, for the first respondent.  (instructed by Department of Justice and Border Control ‑ Republic of Nauru)

FRENCH CJ:   I note that there is no appearance for the second respondents.  Mr Niall, it would assist us I think to hear from you first as to why an extension of time should not be allowed and on the appeal.

MR NIALL:   If your Honour pleases.  The essential proposition for which we contend as to why the extension of time should be refused is that evidence is not admissible on an appeal under the Appeals Act (Nauru) and therefore the extension of time would be futile.  The critical issue ‑ ‑ ‑

FRENCH CJ:   What is the interest of the Committee in advancing this submission, by the way?  There is talk of prejudice to the Committee.  The Committee is a statutory body with certain decision‑making functions and certain informal functions, as I understand.

MR NIALL:   It does.  The Committee’s position is statutory.  It does not have a particular interest in the outcome of the appeal in the sense that it wishes to advance that the nature of the appeal which affects, or could affect, its decision is properly identified in the parameters determined.  The position when the proceeding was initiated was that the Nauru Lands Committee was the only respondent to the proceeding and took the role essentially of contradictor to assist the court.  It then identified the desirability of, or the necessity of, joining the beneficiaries in relation to the land to the proceeding, and that was done by order, and your Honours may have seen that the individual respondents were not in a position to appear in this Court and the Committee took the view that, therefore, it was appropriate for it to take the position of identifying the issues which it has in the appeal. 

HAYNE J:   And to resist the determination of the matter on what appears to be new evidence.

MR NIALL:   That is so, but only by reference to the correct construction of the Act, the Commonwealth Act, which confers original jurisdiction on this Court and it is to that issue, the construction issue, that the Lands Committee which seeks to advance submissions.  It is clear that resolution of the extension, and if an extension is granted resolution of the appeal, turns on the proper construction of the word “appeal” in the Nauru (High Court Appeals) Act.

FRENCH CJ:   Do you dispute that if this Court were able to receive the evidence and did receive it that it would constitute fresh evidence?

MR NIALL:   Yes, we do.  The submission that we advance, though, is that the appeal that the Parliament has identified in the original jurisdiction to this Court is one which mimics or takes as a point of reference a strict appeal.  We make that submission based principally on the nature of the matter that is before the Court, the form in which the Parliament has conferred the jurisdiction and the context in which it is made.

It is our submission that before becoming immediately to the legislative provisions, once regard is had to the controversy that comes to this Court for the first time, namely, the correctness of the judgment or order of the superior court, namely, the Supreme Court of Nauru, and the form of procedure that Parliament has chosen to quell that controversy, namely, an appeal, in a context where there is no express power to receive evidence and this Court has a settled appellate jurisdiction, it is clear, in our submission, that Parliament intended a strict appeal as a point of reference in understanding the jurisdiction.  It is our submission that that is reflected in the strict appellate powers that are contemplated.  Can I start by reference to the terms of the Appeals Act?

FRENCH CJ:   We are exercising original jurisdiction and we are exercising that in an appeal from an exercise of original jurisdiction by the Supreme Court of Nauru in a civil matter which is an appeal as of right and one reads section 5(1) together with the relevant provisions of the agreement schedule to the Act.  Is there any reason that the provisions of section 77H of the Judiciary Act relating to the power of this Court to receive evidence by affidavit or orally in any cause or matter before this Court is not applicable, apart from a narrow construction of the term “appeal” itself, whereas you are pointing to a want of power and I am just saying, what about that provision?

MR NIALL:   Section 77H, in our submission, needs to be read by reference to the issues that are in dispute which in turn is referenced by the nature of the jurisdiction and powers that are conferred.  If we are right in the construction of appeal under the Act, there would be no relevant evidence because the only issue for the Court would be whether the decision of the Supreme Court of Nauru was correct on the material before it.

FRENCH CJ:   But you are not assisted, are you, in that construction, or are you, by a want of a power to receive evidence?

MR NIALL:   We do submit that 77H is not applicable because it has to be read by reference to the parliamentary intention in the Appeals Act.

FRENCH CJ:   It all turns, on your submission, on the construction of appeal.

MR NIALL:   It does.  Of course, your Honour the Chief Justice identified that this was an appeal in the original jurisdiction from the original jurisdiction of the Supreme Court of Nauru.  Of course, the Supreme Court of Nauru exercises appellate jurisdiction as well.

FRENCH CJ:   Yes, by leave, if it is an appeal from that.

MR NIALL:   It is by leave, but the terms of the appeal are not distinguished, so that the principle that would apply as to whether evidence was admissible from an appeal from the original jurisdiction would apply equally to an appeal from the appellate jurisdiction.  The Supreme Court of Nauru exercises appellate jurisdiction both from the District Court of Nauru in both civil and criminal matters and its own laws differentiate between the reception of fresh evidence in Nauru on civil and criminal matters with no power to admit fresh evidence in the appellate jurisdiction in civil matters, but when one gets to this Court, the Act and agreement do not draw a distinction as to what should happen in an appeal from both original and appellate, albeit that the latter, appellate, must be the subject of a grant of leave.

It is our submission that the language of the (High Court Appeals) Act, including what is not in the (High Court Appeals) Act is demonstrative of the nature of the jurisdiction and powers that the Court is exercising.  We emphasise, as we have in our written submission and in the set of propositions which your Honours should have, that the choice of procedure or proceeding the Parliament has chosen as an appeal – your Honours see that in section 5(1) and section (2) of the Act.  Secondly, the form of order in section 8 mirrors section 37 of the Judiciary Act which reflects the appellate jurisdiction of this Court, and a third textual indicator can be found in 9(b)(ii) where there is equal opinions in this Court, the decision appealed from shall be affirmed.  Justice McHugh in Ruhani identified that as another indicator of a strict appellate concept.

So there are those three textual matters, the appeals, the form of orders and the provisions of section 9 and there is also, in our submission, the agreement itself which identifies that an appeal to this Court can be brought from the appellate jurisdiction.  It is our submission that the language of the Act is consistent with the use of the term “appeal” as denoting a strict appellate function.  In our submission, the judgments of the Court in Ruhani 222 CLR 489 all proceeded on the basis that as a matter of text and a matter of context the language of the statute clearly indicated an appellate function. The question, of course, in Ruhani was whether the Act was valid.

FRENCH CJ:   The concept appellate function, of course, then raises the particular statutory context in which the term “appeal” is used.  We referred to this in the decision in Lacey v Attorney-General of Queensland, I think, last year.  You can have a strict appeal, you can have an appeal de novo, you can have an appeal by way of rehearing which may or may not allow for the introduction of additional evidence.  It may be that there is something along that spectrum.

MR NIALL:   The authorities are very clear, going back to Sir Anthony Mason’s judgment in Sperway, Coal & Allied, Brideson, Tasty Chicks, that the word “appeal” is very much context sensitive and can, as the Chief Justice indicated, fit within the range.  In our submission, the judgments in Ruhani indicated as a matter of text and context that all the indicators were directed to an appellate-style function, but on the question of validity, a majority of the Court held that it was original jurisdiction not because the text and language as a matter of construction did not denote an appellate style of proceeding, but because it was the first time the matter had entered the Australian judicial system.  Your Honours will see that at paragraph 10 in the Chief Justice’s reasons for judgment, paragraph 51, and paragraph 108.

That proposition, that it was original because it was the first time the matter entered the Australian jurisdiction, did not, in our submission, deny the characteristics and the power that the Parliament intended as appellate.  When one looks at it as a matter of construction rather than validity, it is clear, in our submission, that it is a strict appeal concept.  There is nothing in the original jurisdiction that requires a particular form of process.

BELL J:   Just before you leave Ruhani, at paragraph 73, page 518 of the report, in the judgment of Justice McHugh, his Honour observed:

The broad powers conferred by s 8 suggest that the Court does more than simply review the correctness of the decision of the Supreme Court or apply the law of Nauru.  The Court is instead directed to determine the underlying controversy between the parties –

Is that consistent with the submission you are presently putting respecting the limits of the issue determined in Ruhani?

MR NIALL:   It is, in our submission, because the controversy that separates the parties is the correctness of the decision of the Supreme Court and it is really the question of how that controversy is resolved that one needs to attend the provisions of the Act.  If your Honours were to go to start at paragraph 40 in the judgment of Justice McHugh – his Honour is starting perhaps a little earlier at 38, sets out – and this goes from 38 through to paragraph 47 – his Honour identifies the characteristics of the statute, all of which tended to demonstrate appellate concept.  Your Honours will see the first sentence in paragraph 40 referring to:

The literal meaning of many provisions of the Nauru Appeals Act suggests that the proceeding in this Court is an appeal in the true sense.

In paragraph 42, again in the first sentence, his Honour notes:

The powers of the Court, when exercising jurisdiction under s 5(2) of the Nauru Appeals Act, are consistent with the exercise of appellate jurisdiction.

His Honour goes on in that paragraph to reference section 8, which cross‑references section 37.  In paragraph 43 his Honour indicates that section 37 might connote a similarity with a first‑instance judicial review of an administrative decision.

GUMMOW J:   What do you say about what is said by Justice Deane in Mickelberg 167 CLR 279, the paragraph beginning “Even if one assumes”, then in the middle of the page:

More important for present purposes, the common law procedures for correcting error and miscarriage included, at least from the seventeenth century, the motion for a new trial based on fresh evidence.

MR NIALL:   In our submission, one is only dealing with the statutory construction of appeal.  There is no common law jurisdiction being called in aid and as an incident of construction, the fact that there could have been correction outside of an appeal does not advance which type of appeal, within the spectrum, Parliament has chosen.

HAYNE J:   But is that not inverting the inquiry?  Under the practice that existed before 1875 motion for new trial would have been made either to the trial court, perhaps to a divisional court.  The Court of Appeal is then established and, I think, not immediately but later motions for new trial had to be made to the Court of Appeal as if on appeal.  When one observes in the Act here that the powers of this Court include power to direct new trial and couples that with the observation that the remedy sought here is just that, new trial, and the ground advanced being fresh evidence, why is the statement by Justice Deane not only apposite, but directly and decisively against you?

MR NIALL: In our respectful submission, for the same reasons that informed the character of a section 73 appeal. One of the reasons, one of the textual reasons in relation to the construction of section 73 in Mickelberg and Eastman was the use of the word “appeal” and the absence of any express power to admit fresh evidence.  Now, here, in our submission, by analogy, we have an express appeal and we have an absence of any express power to receive fresh evidence, in the context where the – that there is nothing in this Act which identifies any intent to pick up, as an aspect of the appellate jurisdiction, the common law of the United Kingdom even if it were picked up in Nauru. 

So one is driven, in our respectful submission, back to the construction of the word “appeal” and within that construct, in our submission, the observations of Justice Deane at 279 do not assist on that point any more that they did insist on the construction of section 73.

In our submission, the conclusion of Justice McHugh in Ruhani that the characteristics of the statutory grant of a right of appeal – and this is at paragraph 48 – are “consistent with appellate jurisdiction” was a starting point of the analysis in each of the other reasons for judgment.  In the judgment of the Chief Justice in paragraph 9 in Ruhani the Chief Justice notes that the description of the proceeding as an appeal is “perfectly apt” in relation to the perspective of the parties. 

In our submission, his Honour is mirroring the observations of Justice McHugh leading to his Honour’s conclusion at paragraph 48.  His Honour concludes – that is the Chief Justice – at the bottom of page 499 of the report where his Honour says:

from the point of view of the parties have the characteristics of an appeal, to involve, from the point of view of the Australian judicature, an exercise of original jurisdiction.

Now, there is no discomfort in construing the Act by reference to that perspective, that is the perspective of the parties in appeal rather than from the perspective that it is original jurisdiction because, in our submission, the characterisation or the fact that it is original does not alter the meaning of the statute.  At paragraph 109 in the joint judgment of your Honours Justices Gummow and Hayne there is a reference to the “nomenclature” of appeal. 

Again, in our respectful submission, the judgment proceeds on the basis that what is being mimicked or what is being picked up and what the concept that is being brought to bear is a strict appellate concept.  Justice Kirby to similar effect at paragraph 164 where his Honour notes that against the background of his Honour’s analysis ‑ ‑ ‑

GUMMOW J:   Well, that is a dissenting judgment, is it not?

MR NIALL:   It is, your Honour, but ‑ ‑ ‑

GUMMOW J:   The whole message of Ruhani – the whole argument in Ruhani was whether this was an illegitimate legislative enterprise because it was an attempt to go beyond section 73 of the Constitution. The decision in Ruhani says it is not because it is this particular form of original jurisdiction so ‑ ‑ ‑

FRENCH CJ:   This comes in under 76(ii).

MR NIALL:   That is so, but the particular form is the question that we seek to ‑ ‑ ‑

GUMMOW J:   Well, of course it is, but you do not derive a notion of reform from the fact that it is outside section 73. The whole structure was designed to be outside section 73.

MR NIALL: It is, it is and it is valid because it is outside of section 73.

GUMMOW J:   Exactly, but you nevertheless seek to limit it as if it were within section 73.

MR NIALL:   Our construction is that Parliament intended a particular form of original jurisdiction and the strongest indicator are all of the indicators that led to the argument and the controversy in Ruhani which was resolved in favour of validity.  But the argument, in our submission, in Ruhani did not proceed – or the reasons for judgment did not proceed on the basis that they were not appellate in nature, but they were original because it was the first time that the jurisdiction of the Court – of any Australian court had entertained the matter. 

That being so, in our submission, Ruhani assists us in our construction that what is being picked up is a truly appellate power.  Justices Callinan and Heydon dissented on the basis that it was truly appellate and therefore invalid, but their Honours’ construction of the Act again proceeds on the same basis and that is at paragraph 282.

FRENCH CJ:   Given that the concept of appeal in this statute encompasses an appeal both from an exercise of original jurisdiction as well as from an exercise of appellate jurisdiction of the Supreme Court of Nauru, in the first case an appeal comes to this Court in its original jurisdiction from an exercise of original jurisdiction without the interposition of any intermediate Court of Appeal.  Does that not rather suggest that a more flexible approach to the concept of the jurisdiction conferred by an appeal than you are contending for?  For example, what would you do about a matter of an assertion of bias against the primary judge?  You would have to receive evidence, or might have to receive evidence, to deal with that, might you not?

MR NIALL:   In our submission, that might not constitute fresh evidence in the sense depending ‑ ‑ ‑

FRENCH CJ:   Well, you are just talking about any evidence, are you not?  You cannot receive evidence on these appeals?

MR NIALL:   In our submission, even if one looks at the narrow construct in which it is coming from the appellate jurisdiction of the Supreme Court of Nauru the Act does not differentiate between those two.

FRENCH CJ:   I know.  That is why I am suggesting perhaps a more flexible approach than you are propounding is indicated.

MR NIALL: Even in section 73 appeals there are some occasions where evidence is admitted. Justice Gummow gives some examples in Eastman 203 CLR at paragraph 182. Your Honour Justice Gummow goes on to identify some exceptions in section 73 appeals to the prohibition on receiving evidence, and goes on in 183 to note that:

The applicant raises quite a different matter –

and to seek evidence of a quite different type, and that is what is occurring in this proceeding. This would be classic evidence that would be prevented from being adduced in section 73, or any strict appeal, not just section 73, but in any appeal, and the flexibility is not required in order to do justice between the parties any more than it is required in a section 73 appeal.

Now, it still comes back, in our submission, to the choice that Parliament has made, and we note in Eastman, while your Honours have a copy of the report to hand, that the clear proposition that the mere grant of appellate jurisdiction does not carry with it the right to receive evidence, and your Honours will see that at paragraph 105 in the judgment of Justice McHugh where his Honour says:

Authority for an appellate court to receive further evidence must come from a grant of legislative power in addition to a mere grant of appellate jurisdiction . . .  There does not appear to be any case where a court has held that the simple grant of appellate jurisdiction carries with it the right to admit further evidence in hearing the appeal.

To similar effect at paragraph 186 in the judgment of your Honour Justice Gummow by reference to what Chief Justice Mason said in Mickelberg where in 186 it is noted that:

in 1900 or thereabouts, “a mere grant of appellate jurisdiction without more would not be understood as carrying with it a power to receive further evidence”.

Your Honour Justice Gummow says at paragraph 189 that that statement was “correct” and in paragraph 192 goes on to say that whatever the position in 1903 the developments since that date, “support rather than weaken the construction given to s 73” by reference to some New South Wales authority and up to the top of page 64 where the observation was that the power to receive “was expressly conferred ‘[a]lmost invariably”.

Paragraph 193 in his Honour’s judgment goes on to deal with this question that the point might be, “stronger at a first [instance] appeal rather than an ultimate appeal”.  Here, the agreement contemplates that this Court will hear appeals from both appellate and original jurisdiction and in our submission rather than disclosing the flexibility within that Parliament intends it to mirror or treat this Court as the ultimate appeal from an intermediate appellate court.  That is the analogue which we invite the Court to accept.

FRENCH CJ:   Does that mean you cannot have an appellant from a decision of the Supreme Court of Nauru – you cannot get a remedy in the case where fresh evidence has emerged which could not have been ascertained reasonably at the time of the relevant hearing and which could have affected the outcome of the case?

MR NIALL:   That is so, not a remedy from an appeal to this Court.

FRENCH CJ:   Or anywhere?

MR NIALL:   Justice Gleeson identifies in Eastman that there are a number of means by which the injustice that might occasion by the finality that the lack of ability to receive evidence might entail and his Honour deals with that at paragraph 15 where his Honour notes the variety of means by which the harshness of the finality of litigation is ameliorated.

FRENCH CJ:   He begins by talking about the existence of an intermediate Court of Appeal, does he not?

MR NIALL:   Not, in our respectful submission, so much an intermediate Court of Appeal but a particular form of process that Parliament can confer which is not an appeal in other than, as your Honour says, in only the loosest or most colloquial sense that there is room for the Parliament to identify means of ameliorating this problem and it is a problem which exists in this Court, it was a problem in Mickelberg, it was a problem in Eastman, it will always be a problem where there is a strict appeal.

BELL J:   It is a distinctly greater problem where the outcome is that there is no provision to redress a situation where, following the decision of a primary judge in Nauru, no capacity exists to receive fresh evidence notwithstanding that the special conditions for its admission exist.  Why would one favour such an interpretation?

MR NIALL: For two reasons. One is that the Parliament of the Commonwealth, aware of the limitations of a strict appeal, in our submission, must be taken to have consciously not attended the appellate jurisdiction with a power. Secondly, it is an unusual jurisdiction where this Court is exercising appellate jurisdiction or original jurisdiction out and from another sovereign nation. Thirdly, the remedy, if there be a remedy, rests with the Parliament of Nauru. Under the Constitution of Nauru, the President may grant a pardon in any such case so that there is executive clemency to cover the circumstance and, secondly, the Constitution specifically provides that the Nauruan Parliament can create a court of appeal.

It is the decision of the Nauruan Parliament as to whether or not there should be in all cases an intermediate court of appeal.  The safeguarding or fallback in this Court is and is only the Nauruan Appeals Court Act and, in our submission, ought be construed narrowly.  The emphasis on finality ought be the identification, ought be the preference, that the Parliament has opted for rather than the ability to receive fresh evidence.  It is relevant, in our submission, that this Court is chosen as the court to conduct appeals in circumstances where it has a well‑understood and limited appellate jurisdiction and, in our submission, that does also tend to suggest that Parliament chose to mirror the appellate jurisdiction that this Court exercises.

In our submission, it is said against us that the law of Nauru is also a source of rights or powers in this Court to receive fresh evidence.  I just wanted to briefly address that.  Firstly, the Nauruan law, in our submission, cannot alter the construction or the nature of the jurisdictional powers which Parliament confers on this Court under section 76(ii), but to the extent that there might be some contextual significance of Nauruan law, can I take your Honours to the Appeals Act (Nauru) which your Honours ought to have been provided with.  This was an Act from 1972.  If your Honours go to section 3, your Honours will see that the Supreme Court has an appellate jurisdiction from the District Court. 

In section 17 – this is criminal matters – there is a reference to the Supreme Court receiving additional evidence or further evidence and that could lead to an exercise of power which could be subject to an application for leave to this Court.  That is a judgment on an appeal from the District Court.  The jurisdiction of the Supreme Court of Nauru in civil matters starts at section 27 which confers jurisdiction on the Supreme Court of Nauru in civil causes and matters from the District Court.  Your Honours will note in paragraph 33 the powers of the Supreme Court in an appeal in a civil case and in section 35 it is said that:

All appeals under Parts II –

which is the criminal appellate provisions –

and Part III –

which is the civil –

of this Act shall be by way of rehearing.

In the appellate jurisdiction of the Supreme Court of Nauru there is no power, express power, in civil cases to receive fresh evidence but there is in the case of criminal appeals in section 17.

HEYDON J:   Why precisely should the construction of the legislation in Nauru control the construction of Commonwealth legislation applicable to this Court?

MR NIALL:   Our primary submission is that it is of no significance, but it is said against us that it may have some relevance given the agreement picks up the type of proceedings from which appeals can be brought to this Court.  This Act was in place at the time the 1976 Appeals Court was in place.  So it may be said to be part of the legislative landscape of Nauru from which the 1976 Commonwealth Act was enacted. 

HEYDON J:   What if the Nauru legislation is changed in future?

MR NIALL:   It would not make any difference to the construction.  The highest it could say that in 1976 this was a part of the matrix which Parliament was aware when it enacted the 1976 Act and the matrix, to summarise, was that there was both civil and criminal appeals to the Supreme Court of Nauru, fresh evidence could be received only in criminal matters.  Section 37 does identify appeals from the Supreme Court to the High Court.  It is headed:

PART V – APPEALS FROM THE SUPREME COURT IN CRIMINAL CAUSES

It says in subsection (1) that:

A person . . . may appeal to the High Court –

and goes on at the end of that section to say –

and the High Court has jurisdiction to hear and determine the appeal.

Section 38 deals with:

Powers of High Court on hearing of appeal

The counterpart for civil proceedings starts at 44. There are two provisions which the Nauru Act purports to address the powers of this Court. They are 46 where it is said that the powers of this Court:

Upon the hearing of any appeal under this Part of this Act the High Court may affirm, reverse or modify the judgment or order appealed from –

That is section 46.  That is in materially no different terms to section 8 of the (High Court Appeals) Act of Australia.  Your Honours will note section 49 where it is said:

For the purposes of and incidental to the hearing of determination of appeals under Parts V and VI –

Part V is the criminal, and Part VI is the civil –

the High Court shall have all the power, authority and jurisdiction which it has for the purposes of and incidental to the hearing and determination of appeals from the Supreme Courts of the States of Australia.

So, so far as Nauru was concerned when it enacted the Appeals Act in 1972 ‑ ‑ ‑

FRENCH CJ:   So what these provisions do is to make effective under the law of Nauru the orders and determinations of this Court?

MR NIALL:   They do two things.  Under the constitution of Nauru, it is only permissible for there to be an appeal to a court of another country if Parliament so provides, so it does that.  Secondly, it makes the appeal efficacious once orders are made from this Court and returned.  But it does identify the Nauruan understanding of what this Court would do in circumstances where the 1976 Act had not yet emerged, and if your Honours go to section 49(2), the Nauruan Parliament said:

The High Court may, if it thinks it necessary or expedient in the interest of justice in an appeal under Part V –

which is only criminal –

order any witnesses who would have been compellable witnesses at the trial to attend and be examined before any judge or the Registrar of the Supreme Court or any other person appointed by the Supreme Court for the purpose and allow the admission of any depositions so taken as evidence before the High Court.

So to the extent that Nauruan law might bear upon the construction because the Australian Act gives effect to an agreement between Australia and Nauru, it strongly suggests no fresh evidence in civil proceedings, and that an order that this Court might make directed to witnesses attending before a judge or registrar of the Supreme Court would be limited to criminal appeals.  The only other piece of Nauruan law which may be relevant is the Custom and Adopted Laws Act 1971, and your Honours will see in section 4 that:

the common law and the statutes of general application, including all rules, regulations and orders of general application made thereunder, which were in force in England on the thirty-first day of January, 1968, are hereby adopted –

That is subject to section 6, which identifies the rules, regulations and orders that are not picked up by reference to the First Schedule, and if your Honours go to the First Schedule:

the statute law of England which are printed in the Third Edition of Halsbury’s Statutes of England under the titles specified hereunder –

are not picked up and your Honours will see the reference to “Courts”, about point 8 of the list and, over on the next page, “Practice and Procedure”.  Can we hand to your Honours the index of the third edition of Halsbury’s Statutes of England simply to identify that, even in Nauru in 1968, they did not pick up the English Courts Act which granted power to receive evidence on appeals.  Can I hand those to the Court?  Of course, even if they were picked up, section 5 of the Customs and Adopted Laws Act would be overridden by both a law of the Commonwealth and a law of Nauru.  In this case the law of Nauru was the Appeals Act and the law of Commonwealth is the Nauru (High Court Appeals) Act.

GUMMOW J:   Do you accept that the content of the matter in the original jurisdiction is as indicated in paragraph 104 of Ruhani?  Plus 106, I think.

MR NIALL:   Paragraph 115 also, your Honour.  We do, your Honour, and ‑ ‑ ‑

GUMMOW J:   “[B]y way of a new trial or re-hearing”.

MR NIALL:   And to similar effect at paragraph 58 in the judgment of Justice McHugh and, in our submission, when one looks at 115, the identification of the controversy, namely, the correctness of the determination of the Supreme Court, is a classic identification of an appellate task.  We rely on the scope of the matter and the scope of the controversy as supporting an appellate construction.  That is supported, in our submission, when one reads the matter set out in those paragraphs in Ruhani with what the Court said in Mickelberg at page 267 in the judgment of the Chief Justice at 267 in the middle of the page where his Honour says:

Underlying this uninterrupted stream of authority are two propositions.  The first is that an appellate court, in hearing an appeal in the proper sense of the term, is called upon to redress error on the part of the court below.  In deciding whether there was error, the appellate court looks to the materials which were before the court below.  It is otherwise if, according to the statute governing the jurisdiction of the appellate court, the appeal is by way of rehearing.

And to similar effect at page 274 in the judgment of Justice Brennan and page 298 in the judgment of Justices Toohey and Gaudron.  If your Honours go to 298 where their Honours say, first full paragraph:

Ordinarily, an appeal raises the correctness or otherwise of the decision under appeal in the light of the evidence and issues as they were before the court whose decision is in question.

Now, what we get from that is that here the matter is the correctness of the decision of the superior court and that is a classic hallmark of appellate jurisdiction.  So in terms of the relief of a new trial, that new trial, in our respectful submission, would arise only on finding error on the basis of the material before the court.  That is what I wanted to say about the construction of the Act.  In terms of whether it is appropriate there be an extension of time, we simply rely on our written submissions.

FRENCH CJ:   Mr Niall, the notice of appeal refers to this as an appeal from the judgment in civil action 16 of 2000.  There were two actions – 16 and 17 – which I think Chief Justice Connell directed be heard together.  There is a handwritten note to that effect in the record.  Then there is a set of orders.  There was a claim for final injunctive relief in 16 and I think declaratory orders in 17.  There is no order expressly dismissing either of those applications, although it is by implication having regard to his findings.  If the appeal were to be allowed, it seemed to me that most of the orders, if not all of the orders, that were made by Chief Justice Connell at page 27 in the appeal book would not be amenable to being set aside because, as it were, they had their history.  The things that he directed to be done have been done.

MR NIALL:   That is so, and has been overtaken.

FRENCH CJ:   If the appeal were to be allowed, it would be an order simply remitting the matter for rehearing and determination, would it not?

MR NIALL:   The only question would be whether order (1) ‑ ‑ ‑

FRENCH CJ:   That was done, was it not?

MR NIALL:   I beg your Honour’s pardon; finding (1) is not ‑ ‑ ‑

FRENCH CJ:   Yes, but the findings are not orders, are they?

MR NIALL:   Finding (1) is not reflected in an order.

FRENCH CJ:   These are really just reasons before the actual formal orders are made.

MR NIALL:   Finding (1) is not reflected in an order, so there would be no orders that would be required to be set aside – simply that the matter be remitted, and by the matter, we would be presenting 16 and 17 be remitted to the Supreme Court of Nauru for further hearing and determination.  That would, in our submission, leave the question of how and what was to happen with the evidence to the Supreme Court.

FRENCH CJ:   Would there be any, as it were, omelette to be unscrambled in terms of subsequent events relating to the second respondents?

MR NIALL:   I do not believe so, your Honour.  I say that because the event that triggered this appeal, or application, was another ‑ ‑ ‑

FRENCH CJ:   There was a challenge before Chief Justice Eames.

MR NIALL:   Yes, and his Honour indicated that the problem that the appellant here, the party below, had was the orders and decision of Chief Justice Connell.  If that went away, the issue would be then left for the Supreme Court as how it was to dispose with either 16 and 17 and the extant proceedings which are before his Honour.  The extant proceedings would pick up any supervening events so there would be no impediment to the Supreme Court hearing and determining all of the issues.  Your Honours will see that in paragraph 14 of the supplementary appeal book further proceedings in the land appeal No 12 have been adjourned pending the outcome of this appeal.

FRENCH CJ:   Yes.

MR NIALL:   Unless I can be of any further assistance to the Court, they are the submissions for the first respondent.

FRENCH CJ:   Thank you.  Mr Williams, perhaps we can hear from you just on the question of relief.

MR WILLIAMS:   I heard what passed from your Honour the Chief Justice a moment ago about the form of order made by

Chief Justice Connell and the mixing in that document of what appear to be reasons and orders.  We took it as being implicit from the form of the order that his Honour, in effect, dismissed the action because that is the essence of his findings.  It is the inevitable result of his findings.

GUMMOW J:   Looking at paragraph 19 of your outline, though, it suggests you want to set aside Chief Justice Connell’s orders.

MR WILLIAMS:   It does say that, your Honour, and in that respect it is wrong for the reasons his Honour the Chief Justice has correctly identified.  What, in fact, there is a need for is to return the matter for further hearing in accordance ‑ ‑ ‑

FRENCH CJ:   Is it both matters 16 and 17?  They were heard together even though the order ‑ ‑ ‑

MR WILLIAMS:   They were heard together, but there does not seem to be an order made in 17, so it is difficult to know what to make of that order that we have at page 27.  It might be the safest course, your Honour, the parties in 16 and 17 ‑ or the parties in 17, of course, are the second respondents here, or their successors in title, and the matters have always been dealt with together.  I think everybody understood, it would seem, the reasons given in 16 that are encapsulated in that order as applying also to 17.

FRENCH CJ:   Who at that time were the parties in 17?  It was commenced against the curator of intestate estates, I think.

MR WILLIAMS:   It was, but the present second respondents I think have intervened in it or were heard in it.

FRENCH CJ:   Were they formally joined?

MR WILLIAMS:   I think not, your Honour.

FRENCH CJ:   Yes.  Is there anything further?

MR WILLIAMS:   So certainly, with respect, we do acknowledge the difficulty in seeking to set aside orders which have already been put into effect and the setting aside of them now served no purpose.  What we seek to achieve by whatever means, with respect, the Court thinks is the appropriate form of order here is to empower the Supreme Court of Nauru – not to compel it, but to empower it – to rehear the matter, that is to say, compel it to rehear, not compel it to do anything about the fresh evidence.  That would be entirely a matter for it.

FRENCH CJ:   The question whether it accepted or did not accept that evidence would be a matter for that court.

MR WILLIAMS:   Yes.  One can understand the sort of reserve that a court of this nature would have in seeking to express its own views too carefully or too significantly about that matter given international comity concerns.

FRENCH CJ:   What order do you seek in relation to costs?

MR WILLIAMS:   We would simply seek an order that we have them, your Honour.  We have been actively resisted at every stage.  If we were to succeed ‑ ‑ ‑

GUMMOW J:   Against the Lands Committee?

MR WILLIAMS:   Against the Lands Committee.  In that respect, if I might go back to it, an exchange at the outset of Mr Niall’s submissions with his Honour Justice Hayne, I think, and in part with his Honour the Chief Justice, the Lands Committee has chosen to take an active role in this appeal where its own interests are not directly affected.  It may have felt that it was doing so in some purpose of assisting the private individuals who stood behind the opposition to this claim, but, in the end, it has resisted the claim to have heard and determined, according to the evidence which is now available, a claim by a private Nauruan citizen who has had to come to this Court and has had to deal with the need to make contested submissions on difficult questions of the construction of the Act and it has only had to do that because of the active opposition of the Lands Committee.

HAYNE J:   What costs is it that you are seeking?  The costs of the appeal here?

MR WILLIAMS:   Yes.

HAYNE J:   The costs of the earlier proceedings in the Supreme Court of Nauru would, I think, either be untouched or possibly might be left to the discretion of the Supreme Court of Nauru.  What is it that you say we should do, if anything, about the costs of the earlier proceedings in that court?

MR WILLIAMS:   We would say they ought to be left to the discretion of that court, your Honour.  It is best placed to determined where any responsibility, if any, lies for the circumstances. 

FRENCH CJ:   Well, there was no order as to the costs of the hearing and there seemed to be an order for:

5.        Costs of the order for the injunction granted to the Plaintiff –

I am not quite sure what that means.

MR WILLIAMS:   There was an interlocutory injunction which was ‑ ‑ ‑

FRENCH CJ:   There was an interlocutory ‑ ‑ ‑

MR WILLIAMS:   ‑ ‑ ‑ discharged by this order. 

FRENCH CJ:   Who was to pay the costs of that?  Five reads:

Costs of the order for the injunction granted to the Plaintiff but no order as to costs of the hearing on Tuesday 19 February 2002.

MR WILLIAMS:   Yes.  Well, obviously there is no need to disturb the first part of that order and as to the second, it is probably not of great moment, your Honour.

FRENCH CJ:   It is an odd thing to award to the plaintiff, the costs of an injunction, which was discharged because the plaintiff lost.

MR WILLIAMS:   On a finding that he had no cause of action.  Yes, I accept that, your Honour, but perhaps this Court is not well placed at this stage to make any other determination than to refer that matter back to the Court of Nauru.  If the Court pleases.

FRENCH CJ:   The Court will adjourn briefly to consider what course it should take.

AT 11.04 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.11 AM:

FRENCH CJ:   For reasons which the Court will publish in due course, the orders of the Court will be:

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

2.Appeal allowed.

3.Civil action No 16 of 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 of 2000 to be in the discretion of that Court.

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

The Court will now adjourn until 10.15 am on Tuesday, 1 May 2010.

AT 11.12 AM THE MATTER WAS ADJOURNED