Djaigween, F. v Douglas, M
[1994] FCA 94
•04 MARCH 1994
FRANCIS DJAIGWEEN AND OTHERS v. MALCOLM DOUGLAS trading as BROOME CROCODILE
PARK
THE STATE OF WESTERN AUSTRALIA (Intervener)
No. WAG13 of 1994
FED No. 94/94
Number of pages - 16
Procedure
(1994) 48 FCR 535
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
CARR J
CATCHWORDS
Procedure - motion to dismiss, stay or transfer proceedings - originally application made to Federal Court of Australia - common law native title claim prior to enactment of either Commonwealth or State native title legislation - that application remitted to Supreme Court of Western Australia under Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) - Supreme Court dismissed application for interlocutory injunction - subsequent application made to National Native Title Tribunal for determination of native title - that application still pending - fresh application made to Federal Court of Australia for interlocutory injunction - whether application should be dismissed or stayed as an abuse of process - whether matter within jurisdiction of Federal Court - alternatively whether matter should also be transferred to the Supreme Court.
Native Title Act 1993 (Cth) ss.12, 13, 22, 61, 70, 71, 73, 74, 81, 213, 223, 227, 233(1), 236
Federal Court of Australia Act 1976 (Cth) s.23
Aboriginal Heritage Act 1972 (W.A.) s.18
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s.5(4)
Mabo v. State of Queensland (No. 2) 1992 175 CLR 1
HEARING
PERTH, 3 March 1994
#DATE 4:3:1994
Counsel for the Applicant: Mr. B.A. Keon-Cohen QC
with him Mr. G.M. Irving
Solicitors for the Applicant: Corser and Corser
Counsel for the Respondent: Mr. C.P. Stevenson
Solicitors for the Respondent: Mallesons Stephen Jaques
Counsel for the Intervener: Ms. C. Wheeler and
Mr. C.R. Humphry
ORDER
THE COURT ORDERS THAT:
1. The application be transferred to the Supreme Court of Western Australia.
2. The applicants pay the costs of the motions of the respondent and the intervenor together with the costs of the respondent and the intervenor in respect of the hearings which took place on 2 February 1994 and 3 February 1994 and the directions hearing on 18 February 1994, all such costs to be taxed.
NOTE: Settlement and entry of Orders are dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Introduction CARR J The respondent, Mr Malcolm Douglas and the intervenor, the State of Western Australia have each filed identical notices of motion in this application seeking orders that the application (described as "the action") be dismissed, alternatively that the application be stayed pending the final determination of action CIV 2109 of 1993 in the Supreme Court of Western Australia ("the Supreme Court action") or that the application be transferred to the Supreme Court of Western with immediate effect and that the applicants pay the costs of the respondent and intervenor.
Factual History
2. On 13 September 1993 the applicants filed in this Court an application and statement of claim. The respondents to that application were the State of Western Australia as first respondent, the Mayor, Councillors and Citizens of the Shire of Broome as second respondent and Malcolm Douglas trading as Broome Crocodile Park as third respondent. It is difficult to summarise the statement of claim, but in essence the applicants asserted that they had traditional native title and/or possessory title to areas of land near Broome including the area of a proposed crocodile park (hereafter called "the proposed crocodile park site") and, amongst other relief, sought declarations and injunctive relief to prevent the establishment by Mr Douglas (hereafter referred to as "the respondent") of the proposed crocodile park. The applicants said that the State of Western Australia and the Council of the Shire of Broome had taken certain action to amend a Town Planning Scheme so as to enable the issue of a special lease to the respondent and that those actions were void and of no effect because they were done without taking into account the claims of the applicants, because they were done in breach of a fiduciary duty and because the actions and the legislation pursuant to which those actions were taken were contrary to sections 9 and 10 of the Racial Discrimination Act 1975 (Cth). It was further stated that the granting of a lease and actions to be taken under that lease would have the effect of altering a site within the meaning of the Aboriginal Heritage Act 1972 (W.A.) and that the consent purportedly given by the Minister for Aboriginal Affairs under s.18 of that Act was void and of no effect.
In bringing that application the applicants relied upon the Jurisdiction of Courts (Cross-vesting) Act 1987 (W.A.). At that stage the Federal Court had no jurisdiction to entertain the application apart from that conferred by the cross-vesting legislation. It is significant to note that at the same time as filing the application the applicants applied to the Federal Court for an interlocutory injunction to restrain not only the grant by the State of Western Australia of a lease of the proposed crocodile park site but also to restrain the respondent from exercising rights which might be conferred upon him pursuant to the terms of that lease. At the risk of over-emphasis, the point which I consider to be significant is the fact that at that stage of the proceedings interlocutory injunctive relief was also sought against the respondent. On 14 September 1993 the State of Western Australia gave the applicants an undertaking that the proposed lease would not be granted without fourteen days notice to them and in those circumstances the motion for the interlocutory injunctions was dismissed on 17 September 1993.
On 24 September 1993 the State of Western Australia filed a motion seeking an order pursuant to s.5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 that the application be transferred to the Supreme Court of Western Australia with immediate effect.
On 8 October 1993 French J made an order in those terms in reliance upon s.5(4)(b)(ii) of that Act. The basis of his Honour's decision to do this was that the claim involved consideration of a number of State statutes and their interaction with the Racial Discrimination Act 1975 (Cth) and the common law principles arising out of Mabo v. State of Queensland (No. 2) (1992) 175 CLR 1 and that none of those matters were within the jurisdiction of the Federal Court other than by virtue of the cross-vesting legislation. Furthermore the case was substantially concerned with questions involving the application, interpretation and validity of State laws. His Honour found that there were no other factors which suggested that it was in the interests of justice that the application should proceed in the Federal Court rather than in the Supreme Court of Western Australia. On the last page of his judgment his Honour observed:
"Similarly, speculation on the possible form and content of federal legislation relating to the determination of native title also provides no basis for deferring or disposing of this application."
The Federal Court proceedings were duly transferred to the Supreme Court of Western Australia.
On 1 December 1993 the applicants filed a Chamber Summons in those proceedings for an interlocutory injunction to restrain the State of Western Australia from granting to the respondent any lease over the land referred to in the statement of claim, for the purposes of a crocodile farm or any other purpose or from granting any other right title or interest to the respondent inconsistent with the applicants' traditional native title and/or possessory title in that land pending final hearing. No interlocutory relief was sought against the respondent. I asked Mr Keon-Cohen, counsel for the applicants why it was that no interlocutory injunction was sought against Mr Douglas. I was told that the reason for this was because it was felt that if the applicants were successful in obtaining an interlocutory injunction restraining the State of Western Australia from granting the lease that would have the effect of preventing the respondent from going on to the land and developing the crocodile park.
The interlocutory injunction application was argued before Owen J on 7 and 9 December 1993. From the materials tendered at the hearing of these motions it can be seen that the respondent appeared by counsel before Owen J and opposed the application for the interlocutory injunction which was sought against the State.
It is clear that the prospect of immediate and irretrievable damage to what was described as the "cultural activity and social fabric" of the applicants if the crocodile farm went ahead before trial was the subject of evidence and argument before Owen J. I refer to the affidavit of Patrick Sullivan sworn 2 December 1993, the State's outline of submissions (particularly from paragraph 12 onwards), the affidavit of Nicholas Paul Green sworn 7 December 1993 (particularly paragraph 6), the affidavit of Andrew David Mardiros sworn 14 January 1994 and the affidavit of George Irving sworn 18 January 1994. Further confirmation that the matter of the immediate development of the proposed crocodile park site was a principal if not the principal concern in the proceedings before Owen J is contained in the transcript of those proceedings at pages 7-8, 34, 114 and 198-219. When one reads Owen J's reasons for judgment it is quite clear that the immediate problem with which his Honour was dealing was that if an injunction was not granted the respondent would proceed to develop the area. At page 7 of his reasons Owen J refers to the "third area" of the statement of claim as concerning actions to be taken under the proposed lease. At page 29 his Honour referred to a submission put by the applicants on the assumption that a significant commercial development had been completed by the hearing date. I am quite satisfied that the matter of the immediate development and disturbance of the proposed crocodile park site was a central issue of the interlocutory injunction proceedings before Owen J.
At the conclusion of the hearing on 9 December 1993 Owen J advised the parties of his tentative view that the applicants had not made out a case for injunctive relief which would restrain the issue of the lease, that the evidence disclosed that the land the subject of the proposed lease (or part of it) included an area used by the applicants for passage between sites traversed by initiates and those in whose care they had been placed during initiation ceremonies ("the initiates' track"). As there was some uncertainty as to the exact location of the initiates' track Owen J suggested that the parties should liaise in an endeavour to identify the area concerned and that the lease when issued should if possible exclude the portion concerned. An undertaking was given by the State that no lease would be issued before 17 January 1994.
In the absence of Owen J on 17 January 1994 an application was made to Anderson J to preserve the status quo until 18 January 1994. The State extended its undertaking to 18 January 1994 on which date the matter came on before Owen J again. Further affidavits were filed and Owen J heard further evidence and submissions limited to matters that had arisen since 9 December 1993 and to their impact on the view that his Honour had taken as to the balance of convenience.
After hearing that evidence and further submissions Owen J dismissed the application for an interlocutory injunction giving brief reasons and then publishing written reasons on 4 February 1994.
In summary, his Honour held:
1. That there was a serious question to be tried as to the existence of traditional native title or possessory title over the land.
2. That a further serious question to be tried was that none of the dealings with the land have extinguished the native title asserted.
3. That there were further issues to be tried under the Aboriginal Heritage Act.
4. That damages would not be an adequate remedy.
5. That it was not necessary for him to form a concluded view on the absence of any "meaningful undertaking" from the applicants to pay compensation should they fail in the action.
6. However after a meticulous examination of the evidence his Honour found against the applicants on the balance of convenience.
The basis for this finding was that the applicants were not likely to suffer irreparable injury or harm if as a result of the refusal of interlocutory relief the crocodile park "proceeds" (as his Honour put it). I set out below some of the concluding remarks made by his Honour.
"What then is the real risk to the plaintiffs? As I have said, and with one possible exception, I am not convinced that the spiritual and cultural integrity of Yawuru is seriously at risk by an interference with what is a relatively small and discrete portion of the total area claimed. I say this on the basis of the evidence in its present form and it could be that further investigation alters that situation. However, I am bound to act in accordance with the evidence. The exception that I mentioned brings me back, yet again, to the initiates' track. Following the January meetings the third defendant (Mr Douglas) filed a further affidavit sworn 17 January 1994 in which he indicated that he was willing to agree to a further excision from the area proposed for the Lease. This according to the third defendant, would 'enable the plaintiffs to obtain access for the alleged purpose at all times of the year except for the three or four times a year when extremely high tides ('king tides') occur'. While this was not in the form of an undertaking that the third defendant would not apply for a lease other than with the additional excision I should make it clear to the parties that I have been influenced by the third defendant's 'offer'.
As I understand it, the resumption of ceremonies that would require use of the track is not imminent. It may or may not occur. If it were to occur the use would be intermittent. One of the other difficulties alluded to by the plaintiffs was the need for secrecy in these ceremonies. It was submitted that the element of secrecy would be compromised by the initiates having to pass in close proximity to a crocodile park. There are three things to be said about this. The Lease abuts a major road and a minor road and is in an area that already has various forms of development. Secondly, I was told from the bar table without objection that the plans for the crocodile park require the construction of levy banks on the side facing the mangroves. These banks are to be vegetated. This will preserve some measure of privacy for persons passing along the fringes of the mangroves. Thirdly, p.12 of the Mardiros Report suggests that the rite of passage is carried out 'under the cover of darkness'. For all of these reasons I do not think that the issue of secrecy is sufficient to tip the balance. I am satisfied that the third defendant has a legitimate and significant commercial interest in the Lease being issued promptly. If I accept the third defendants evidence, and I see no reason why I should not, the grant of an injunction could well be the equivalent of final relief against him. If he were forced to wait three years or so for a final resolution he would be forced to abandon the development plans and relocate interstate."
Owen J's judgment was thirty-two pages in length and throughout it there was a constantly recurring theme of recognising that the ancient Aboriginal culture incorporates a spiritual closeness to the land. The main thrust of the applicants' evidence in the proceedings before his Honour related to two aspects namely a camping site on the pindan on the more elevated portion of the site and the initiates' track. However, as Mr Humphry, co-counsel for the State pointed out to me in reply yesterday there was further evidence covering some if not all of the matters upon which the applicants now rely as what Mr Keon-Cohen, senior counsel for the applicants described as "significant new facts".
Out of deference to the spiritual beliefs and traditional concerns of the applicants I shall not elaborate unnecessarily on these matters. The allegedly significant new facts were described as falling into three categories. The first comprised "sensitive traditional matters". The first aspect in this category was acknowledged by Mr Humphry as not having been mentioned before Owen J but there is reference to the second matter in Mr Edgar's affidavit of 6 December 1993 (admittedly to a limited extent) and in Dr Sullivan's affidavit of 3 December 1993 (paragraph 21) and Exhibit NG3 to Mr Green's affidavit sworn 7 December 1993.
The second broad category of what are alleged to be "significant new facts" can be described as relating to current problems with four initiates. Again this subject is dealt with at pages 2 and 3 of Mr Djaigween's affidavit dated 6 December 1993 although it must be conceded that elaboration and far more detail is contained in subsequent affidavits. Again, turning to Mr Brian Saaban's affidavit of 1 March 1994 (paragraph 2) the problem of identifying initiates is not one that is encountered at page 5 of document number 15 annexed to Mr Bower's affidavit of 9 February 1994.
At page 29 of his Honour's reasons for judgment Owen J refers to the Land (Titles and Traditional Usage) Act 1993 (W.A.) ("LTTA") which came into effect shortly before the hearing of the application for an interlocutory injunction and his Honour refers also to the Native Title Act 1993 (Cth) ("NTA") which came into force on 1 January 1994 noting the conflict between the two statutes as being "readily apparent". It is quite clear that his Honour did not rely upon the LTTA as any basis for refusing to grant the interlocutory injunction. In fact his reasons for judgment are consistent only with an assumption that there was a reasonable question to be tried that the claim to native title survived the LTTA despite the fact that the LTTA extinguishes native title.
I respectfully agree with Owen J's observations in relation to the NTA when he commented:
"It should be recognised that NTA does not create a native title right. It defines 'native title' in s.223(1) largely by reference to considerations of the type set out in Mabo (No. 2), specifically tying the concept into the common law. The Act provides, in s.10, that 'native title' is recognised and protected in accordance with this Act. Section 12 provides that the common law in respect of native title has the force of a law of the Commonwealth. The plaintiffs must still establish, through the mechanisms provided for in NTA, their claim to native title."
It is quite clear from that passage that his Honour was contemplating that the applicants would make an application to the Native Title Tribunal for a determination of native title.
As will be seen below, that assumption became reality.
However, in terms of strict chronology, on 28 January 1994 the applicants applied to the Supreme Court of Western Australia for a temporary injunction restraining the issue of the lease to the respondent before determination of the applicants' proposed appeal to the Full Court of that Court. That application was refused by Anderson J on that date.
On 31 January 1994, whilst the applicants were preparing to lodge notices of appeal against the decisions of Owen J and Anderson J respectively, a special lease was issued to the respondent and his wife over the land in question for the purposes of a crocodile park. The applicants say that by issuing that lease "... the Crown effectively deprived the Applicants of their right to Appeal."
On 2 February 1994 the applicants applied under the Native Title Act 1993 for a Native Title Determination which at the time of hearing of these motions had not yet been formally accepted by the Tribunal. On the same date, 2 February 1994 the applicant commenced these proceedings. The application in its amended form is short and I set it out below:
"Application pursuant to the Native Title Act 1993 ss. 13, 61 and 213, and the Federal Court of Australia Act 1976 s.23.
On the grounds appearing in the amended Native Title Determination Application dated 16 February 1994 and filed in the National Native Title Tribunal, and in the various affidavits filed on behalf of the applicants herein, the applicants seek a determination of native title.
And the applicants claim by way of interlocutory relief against the respondent:
1. An injunction restraining the respondent from:
(a) excavating, covering or altering the area of land included in special lease 902/1993 granted on 31 January 1994 to the respondent, such land being the subject of the Native Title Determination Application;
(b) excluding the applicants from entering the said leased land by the erection of fences or otherwise;
2. Costs.
3. Such other order as the Court may think fit."
The Contentions
Jurisdiction
23. The intervenor first submitted that whilst s.213(2) of the Native Title Act invests this Court with jurisdiction with respect to "matters arising under this Act" the jurisdiction is expressly stated as being "subject to this Act". Next it is said that the only matter which on the applicants' case gives rise to the jurisdiction is the application for the determination of native title and having regard to ss.213(1) and 61-74 the Court's jurisdiction has not yet been invoked and that moreover only the Native Title Registrar may invoke the Court's jurisdiction. Thus it was said there was no "matter" before the Court capable of attracting the operation of s.23 of the Federal Court of Australia Act. To hold otherwise, it was argued, is to ignore the limitation of jurisdiction imposed by s.213(1) and the opening words of s.213(2). Section 213 is a short section and it may be helpful to set out its text. It reads as follows:
"Provisions relating to Federal Court jurisdiction Native Title to be determined in accordance with this Act
213(1) If, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in this Act.
Matters arising under this Act
(2) Subject to this Act, the Federal Court has jurisdiction in relation to matters arising under this Act."
The scheme of the Native Title Act is registration of title not title by registration. This was a matter adverted to by Owen J in his reasons for judgment. The procedure is that an application must originate by being lodged and accepted by the Native Title Tribunal. If an application is accepted and the Tribunal does not make a determination under ss.70, 71 or 73 then the Registrar must lodge the application with the Federal Court for decision - see s.74. There is no provision in the Native Title Act for an applicant to initiate proceedings in the Federal Court by way of an application for determination of native title. That is a function of the Registrar.
In my view that does not mean that the Federal Court does not have jurisdiction to preserve the subject matter of an application for a determination of native title pending the making of or failure to make a determination by the Tribunal. In my opinion, the matter of preserving the status quo pending that determination in the Tribunal would be a matter arising under the Native Title Act which would give jurisdiction to the Federal Court and enable it to exercise the powers set out in s.23 of the Federal Court of Australia Act. Accordingly, in my opinion for reasons which I shall try to develop below, the Federal Court has jurisdiction in this matter to grant such injunctive relief as may be appropriate.
If on an assessment of the applicants' claim by either the National Native Title Tribunal or (if the application is opposed) this Court it is found that the applicants do have native title then their rights would be (on their case) severely affected if construction of the proposed crocodile farm proceeds. By reference to a series of sections of the Native Title Act (ss.223(3), 233(1)(a)(ii) and (b) and (c)(ii)(A) (the invalidity of the act being trespass to land) 227 and 236) it would seem that the proposed development works would constitute "an impermissible future act". However, it would also seem that the only sanction resulting from the commission of an impermissible future act is that the act is invalid to the extent that it affects native title - see s.22. In Re Judiciary and Navigation Acts (1921) 29 CLR 257 at p 265 it was held:
"... there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court."
Nevertheless:
"... a matter may properly be said to arise under a Federal Law if the right or duty in question in the matter owes its existence to Federal Law or depends upon Federal Law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law."
If one assumes for the time being that the applicants claim to a native title is sustainable on the evidence then they have a right to registration of that title under the Native Title Act with all the benefits which flow from that registration. Those benefits may have a material value or a spiritual value. To the extent that the value of those benefits specifically flowing from the act of registration may be diminished or extinguished by the conduct which it is sought to enjoin I consider that both the right to registration and the right to the benefits flowing from that registration owe their existence to the Native Title Act, the one being "a necessary ingredient of the other": Grace Bros. Pty Ltd v. Local Courts (N.S.W.) (1989) 23 FCR 68 (Full Court). Consequently, in my opinion the initiation of the procedures leading to such registration and the benefits which will flow from such registration are matters arising under this Act and this Court has jurisdiction to grant an interlocutory injunction to restrain any activities which might wholly or partially destroy those rights. See also Farbenfabriken Bayer A.G. v. Bayer Pharma (1959) 101 CLR 652 at pp 657-659.
If I am wrong in my conclusion on this aspect (circumstances did not give me long to consider the matter) it will be seen that this does not affect the ultimate disposal of these motions.
No valid application for a Native Title Determination
29. An alternative submission put by the intervenor was that the applicants had made no valid application for a Native Title Determination and reference was made to various alleged defects in the documents filed with the National Native Title Tribunal. In view of the conclusion which I have reached above as to jurisdiction, I do not need to consider that submission in great detail. The applicants have lodged an amended application with the Tribunal which, admittedly, has not yet been accepted. Nonetheless, I consider that the requisite procedures have been put in train sufficiently to activate the protective jurisdiction of this Court.
The third alternative submission as to jurisdiction put by the intervenor was that if there were a matter capable of attracting the Court's jurisdiction, that jurisdiction is not exclusive.
I agree with that submission. In my view the jurisdiction of the Court in the matter presently before it is not that which is granted by s.81 (which is exclusive of all other Courts except the High Court) and that jurisdiction is not made exclusive. Matters arising under the Native Title Act are expressly excluded from the conferral of additional jurisdiction on the Supreme Court of Western Australia caused by s.4 of the Jurisdiction of Courts (Cross-vesting) Act (Cth), but that is not to the point.
Stay/Transfer
32. The intervenor refers to the Supreme Court proceedings and to the fact that in those proceedings the applicants claimed that they held native title at common law, and that by reason of the various legal errors (particularised in the Statement of Claim) and, amongst other remedies, sought an injunction to prevent both the grant of the proposed lease and the exercise by the respondent of any rights pursuant to that lease. It is said that as the Native Title Act defines "native title" in terms of the common law to which it purports to give the force of Commonwealth law (s.12 and s.223), the factual basis of the claim before the Federal Court is identical with that of the Supreme Court action to the extent that the latter is based upon native title.
The applicants deny this and say that the proceedings before Owen J must be distinguished from the current proceedings. First, they say they are now seeking to restrain the respondent and secondly there are the "new facts of significance" discussed above.
I have reviewed the evidence which was before Owen J, the outlines of submissions that were handed to him and I have compared that material with the further affidavits and other documents filed in these proceedings.
I accept the submission that the factual basis for the claim in this Court is identical with that of the Supreme Court action to the extent that the latter is based upon native title. Furthermore the relief claimed in the Supreme Court action includes a claim for an injunction restraining the respondent from "pursuing any or all of his ... alleged rights ... pursuant to ... the proposed lease ... or from otherwise interfering with the rights of the Yawuru in respect of the claimed area", although (as mentioned above) the applicants chose not to seek interlocutory relief in the Supreme Court against the respondent.
The applicants say that "significant new facts" have come to light since the hearing before Owen J. The essence of the evidence filed by the anthropologists in this Court is that it is very difficult to obtain the full story from the applicants because of real traditional fears of dangers which result from the disclosure of matters that are secret. Owen J recognised this (see p.13 of his Honours reasons for judgment). Furthermore, (at p.30) his Honour referred to the possibility of further investigation altering the situation.
The problem is that what is described as "significant new facts" are not matters which have only become known to the applicants since the hearing before Owen J. They have, on the evidence, always been known by the applicants and for perfectly understandable reasons, to the extent that new matter has been adduced, the applicants chose not to disclose this information to their anthropological and legal advisers.
As I have decided to make an order transferring these proceedings to the Supreme Court of Western Australia, I shall make no further comment about whether the applicants should be allowed to rely on these matters.
Next, the intervenor and respondent argued that there was an issue estoppel upon the question of where the balance of convenience lay as between the applicants and the parties to the Supreme Court action. Reference was made to Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589 and Hunter v. Chief Constable of West Midlands (1982) AC 529. Each of those cases involved final judgments whereas, of course, Owen J's judgment was interlocutory. It is not necessary for me to decide whether that distinction means that the principles (whether described as "issue estoppel" or not) applied in those cases apply to this case also.
Next it was argued that it is an abuse of process to bring in this Court proceedings which, if successful, would have the effect of reversing Owen J's decision. Reliance was placed on R. v. Balfour (1987) 17 FCR 26 at p 34 and Lessur-Millar (1990) 47 A Crim R 111 at pp 117-118.
Again, in view of my decision to transfer the proceedings to the Supreme Court of Western Australia, I do not think it appropriate to make extensive comments in relation to this matter. However, I must deal with it because it bears on the submission by the intervenor and the respondent that the application be dismissed or stayed.
I was referred by both sides to the chronology of events leading up to the issue of legal proceedings and thereafter. My impression is that whilst there may have been some tactical manoeuvring, there was an element of this on both sides. Thus it would not be fair for me when assessing whether the bringing of these proceedings constituted an abuse of process to regard this as occurring in a context of pre-litigation activity that was in any way inappropriate.
Mr Keon-Cohen submitted that although there was no improper purpose or mala fides attributable to the applicants nor any collateral advantage sought, in any event the test as to abuse of process was an objective one and he referred to Oceanic Sun Line Special Shipping Co Inc v. Fay (1988) 79 ALR p 9 at pp 17-18 in the reasons for judgment of Wilson and Toohey JJ) and pp 44-46 (Deane J). The test is expressed in terms of whether the continuation of the proceedings would be seriously and unfairly burdensome, prejudicial or damaging to the party complaining.
As French J observed in Sea Culture International Pty Ltd v. Scoles (1991) 32 FCR 275 at p 279 the power to dismiss a proceeding as an abuse of process "... ought to be very sparingly exercised and only in exceptional cases".
I respectfully agree with that proposition and adopt a further observation made by his Honour at that page, reference to which was made during the hearing of these motions:
"Underlying the power that courts have assumed to stay or dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. There is, in my opinion, another element to be considered and that is the necessity to maintain confidence in and respect for the authority of the courts."
It was suggested to me by Mr Stevenson, counsel for the respondent that to the "ordinary man in the street" it would seem very strange if his client having been successful in one court was at risk of losing that victory not on appeal but before a judge of a different court.
That may not be the relevant test as a matter of law but I have considerable sympathy with that submission.
The applicants, as was explained to me from the bar table, made a deliberate decision not to seek an interlocutory injunction against the respondent in the proceedings before Owen J. Having lost those proceedings, they have now come to this Court to obtain an interlocutory injunction against the respondent based on what, if not an identical set of factual circumstances is a very similar set of factual circumstances. Any difference in the factual circumstances results from a choice made by the applicants as to what material they would place before their advisers.
In assessing the relevant factors I went very close to deciding that the bringing of these proceedings in this Court was, in all the circumstances, seriously and unfairly burdensome, prejudicial or damaging to the respondent. However, this is an area of law in which State and Commonwealth legislation, (the Land (Titles and Traditional Usage) Act 1993 (W.A.) and the Native Title Act 1993 (Cth)) has only very recently been introduced in response to what is itself a fairly recent decision of the High Court in Mabo v. The State of Queensland (No. 2) (1992) 175 CLR 1.
Bearing in mind the rule that the power to strike out for abuse of process should only be used sparingly, I have decided not to strike out the proceedings but to take an alternative course.
The alternative course, as foreshadowed above, is to transfer these proceedings to the Supreme Court of Western Australia.
I do this pursuant to the provisions of s.5(4)(a) and (b)(i) and (iii) of the Jurisdiction of Courts (Cross-vesting) Act (Cth).
Mr Keon-Cohen urged me not to take this course because, so he argued, to do so would deprive his clients of procedural and evidential advantages flowing from s.82 of the Native Title Act. S.82 provides as follows:
"Federal Court's way of operating Objectives
82(1) The Federal Court must pursue the objective of providing a mechanism of determination that is fair, just, economical, informal and prompt. Concerns of Aboriginal peoples and Torres Strait Islanders
(2) The Court, in conducting proceedings, must take account of the cultural and customary concerns of Aboriginal peoples and Torres Strait Islanders. Court not bound by technicalities etc.
(3) The Court, in conducting proceedings, is not bound by technicalities, legal forms or rules of evidence."
In my view, this submission fails because, as Mr Stevenson pointed out, s.80 makes it clear that the provisions of Part 4 (in which s.82 is found) are to apply in proceedings in relation to applications lodged with the Federal Court under s.74 and this is not an application lodged under that section.
In future, as further applications for native title determinations are made to the Tribunal and in the absence of previous proceedings in other courts, it may be entirely appropriate for this Court to exercise jurisdiction to preserve the status quo as those applications are proceeding.
However, in my opinion this matter is very different. In this matter proceedings were instituted and they progressed in another court to the stage where an application for an interlocutory injunction has been heard. During the adjournment of that hearing, the Native Title Act came into force. However, Owen J considered both the Land (Titles and Traditional Usage) Act 1993 (W.A.) and the Native Title Act (Cth) in his judgment.
It seems to me that if the applicants wish to re-open the question of an interlocutory injunction having the effect of restraining the respondent from carrying out his development works, they should make that application in the court which has been dealing with this matter to date and which also has the jurisdiction and all the powers necessary to protect the applicants' interests, namely the Supreme Court of Western Australia.
In terms of s.5(4) of the Jurisdiction of Courts (Cross-vesting) Act (Cth) it appears to me that these proceedings are related to the Supreme Court action and it is more appropriate that these proceedings be determined by the Supreme Court of Western Australia and furthermore it is otherwise in the interests of justice that the relevant proceeding be determined by that court.
Accordingly I propose to order the transfer of these proceedings to the Supreme Court of Western Australia.
On the question of costs, after weighing up all of the above matters I consider that the applicants should pay the costs of the respondent and the intervenor in this Court.
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