FEDERAL COURT OF AUSTRALIA
Edwards v Santos Limited [2010] FCAFC 64
Citation: Edwards v Santos Limited [2010] FCAFC 64 Appeal from: Edwards v Santos Limited [2009] FCA 1532
Edwards v Santos Limited (No 2) [2010] FCA 238
Parties: NOELENE MARGARET EDWARDS, CLANCY MCKELLAR, IONA DAWN SMITH, ERNEST (HOPE) EBSWORTH, ROSEMARY (ROSE) ANNE WILSON, MARGARET ANNE COLLINS, SHARLEEN LOUISE KNIGHT, ARCHIE EBSWORTH v SANTOS LIMITED, STATE OF QUEENSLAND and DELHI PETROLEUM PTY LIMITED File number: QUD 28 of 2010 Judges: STONE, GREENWOOD AND JAGOT JJ Date of judgment: 4 June 2010 Catchwords: HIGH COURT AND FEDERAL COURT – application for leave to appeal – leave sought to appeal from interlocutory judgment summarily dismissing the proceeding – whether appeal had reasonable prospects of success – whether appeal would seek an advisory opinion as to a hypothetical situation
NATIVE TITLE – whether primary judge’s conclusion that Lardil applied is attended by sufficient doubt as to warrant its reconsideration
NATIVE TITLE – indigenous land use agreements – declaratory and injunctive relief sought in relation to assertion made during ILUA negotiations
Legislation: Federal Court of Australia Act 1976 (Cth) ss 31A, 24(1D)(b), 24(1)(1A)
Judiciary Act 1903 (Cth) s 39B
Native Title Act 1993 (Cth) Part 2, Div 3, Subdiv P
Petroleum Act 1923 (Qld) s 40Cases cited: Bass v Permanent Trustee Company Limited (1999) 198 CLR 334
Décor Corporation Pty ltd v Dart Industries Inc (1991) 33 FCR 397
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
KowalskivMMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401
The LardilPeoples v State of Queensland (2001) 108 FCR 453
Re The Judiciary Act 1903-1920 and The Navigation Act 1912-1920 (1921) 29 CLR 257
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 191Date of hearing: 20 May 2010 Place: Brisbane Division: GENERAL DIVISION Category: CATCHWORDS Number of paragraphs: 30 Counsel for the Applicant: J McCarthy QC with J Kildea Solicitor for the Applicant: Eddy Neumann Lawyers Counsel for the First and Third Respondents: S Lloyd SC with S Cooper Solicitor for the First and Third Respondents: Blake Dawson, Lawyers Counsel for the Second Respondent: P Flanagan SC with G del Villar Solicitor for the Second Respondent: G R Cooper, Crown Solicitor, Brisbane
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 28 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: NOELENE MARGARET EDWARDS, CLANCY MCKELLAR, IONA DAWN SMITH, ERNEST (HOPE) EBSWORTH, ROSEMARY (ROSE) ANNE WILSON, MARGARET ANNE COLLINS, SHARLEEN LOUISE KNIGHT, ARCHIE EBSWORTH
Applicant
AND: SANTOS LIMITED
First RespondentSTATE OF QUEENSLAND
Second RespondentDELHI PETROLEUM PTY LIMITED
Third Respondent
JUDGES:
STONE, GREENWOOD AND JAGOT JJ
DATE OF ORDER:
4 JUNE 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application for leave to appeal from the order made on 18 December 2009 be dismissed.
2.The application for leave to appeal from the order made on 17 March 2010 be dismissed.
3.The applicants pay the first and third…
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CaseChat Overview and Summary
The applicants, on behalf of the Wongkumara people, sought leave to appeal against two interlocutory orders in proceedings in the Federal Court of Australia. The applicants sought declarations and an injunction in relation to the grant of a petroleum lease to the respondents. The applicants argued that the primary judge erred in his conclusion that the Lardil decision applied and that the application was hypothetical. The respondents argued that the appeal had no reasonable prospects of success and that the application sought an advisory opinion. The High Court found that the appeal did not have reasonable prospects of success and that the application did not seek an advisory opinion. The Court found that the primary judge correctly followed the Lardil decision and that the application was not hypothetical. The Court dismissed the application for leave to appeal and ordered the applicants to pay the respondents' costs of the application.
The High Court held that the appeal did not have reasonable prospects of success and that the application for leave to appeal should be dismissed. The Court found that the primary judge correctly followed the Lardil decision and that the application was not hypothetical. The Court held that the primary judge's conclusion that the Lardil decision applied was not attended by sufficient doubt to warrant reconsideration. The Court also held that the application did not seek an advisory opinion but rather a judicial determination based on a concrete situation. The Court found no errors in the primary judge's reasons on the substantive issues and that his order as to costs was a proper exercise of the power to award costs. The Court dismissed the application for leave to appeal and ordered the applicants to pay the respondents' costs of the application.
The High Court held that the appeal did not have reasonable prospects of success and that the application for leave to appeal should be dismissed. The Court found that the primary judge correctly followed the Lardil decision and that the application was not hypothetical. The Court held that the primary judge's conclusion that the Lardil decision applied was not attended by sufficient doubt to warrant reconsideration. The Court also held that the application did not seek an advisory opinion but rather a judicial determination based on a concrete situation. The Court found no errors in the primary judge's reasons on the substantive issues and that his order as to costs was a proper exercise of the power to award costs. The Court dismissed the application for leave to appeal and ordered the applicants to pay the respondents' costs of the application.
Orders
Orders of the court
1. The application for leave to appeal from the order made on 18 December 2009 be dismissed.
2. The application for leave to appeal from the order made on 17 March 2010 be dismissed.
3. The applicants pay the first and third respondents’ cost of this application.
Note:
Background
Background to the litigation
All the respondents submit that the primary judge’s decision is not attended with any doubt and for that reason leave should not be granted. They further submit that even assuming there to be some doubt there would be no injustice to the applicants in refusing leave as such rights as they may have are able to be vindicated in more appropriate proceedings.Background The applicants on behalf of the Wongkumara people are the registered native title claimants in separate proceedings in this Court. The first and third respondents hold an Authority to Prospect (ATP 259) which is issued under the Petroleum Act 1923 (Qld) and which covers land that is subject to the applicants’ registered native title claims. The dispute between the applicants and the first and third respondents arose during negotiations for an indigenous land use agreement (ILUA) in respect of that land.The application before the primary judge In their amended application before the primary judge, the applicants sought declarations in respect of any petroleum lease granted to the first and/or third respondents under s 40 of the Petroleum Act in respect of land subject to the native title claim and covered by ATP259. Specifically the declarations sought were that any such lease would (a) not be a pre-existing right-based act within the meaning of Part 2, Division 3, Subdivision I of the Native Title Act 1993 (Cth) (NTA); and (b) not be valid pursuant to s 24ID of the NTA unless the requirements of Part 2, Division 3, Subdivision P had been satisfied. The applicants also sought an order restraining the second respondent from granting any such petroleum lease to the first and/or third respondents. The learned primary judge held that the application had no reasonable prospects of success. In reaching this conclusion his Honour took the view that the applicants’ claim for relief was premised on the proposition that the grant of a petroleum lease would be a future act within the meaning of the NTA. The primary judge accepted the respondents’ submission that, “to secure final relief of the kind sought by the [applicants] it is not sufficient to establish only that an act might affect native title if native title were found to exist”. In doing so his Honour followed the decision of the Full Federal Court in The LardilPeoples v State of Queensland (2001) 108 FCR 453. The learned primary judge considered separately the question of jurisdiction and standing. The applicants had pointed to s 213(2) of the NTA, s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and to s 21 of the FCA as the source of the Court’s jurisdiction to entertain their application. His Honour correctly noted that s 21 of the FCA is a source of power not jurisdiction and was therefore irrelevant. In relation to the Judiciary Act and the NTA provisions his Honour noted that “the jurisdiction they confer is confined to the “matters” which those sections respectively specify”. The learned primary judge referred to the principles expounded in the joint judgment in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [44] et seq, concerning the difference between a hypothetical question which would involve a court giving an advisory opinion and a judicial determination arising from a permissible invocation of judicial power. At [39] of his reasons his Honour stated that the following propositions emerge from Bass:(a)The purpose of a judicial determination is the making of a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy (at 355, [44]);(b)In light of that purpose, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions (at 355-356, [47]);(c)It does not violate this proposition for a declaration to be sought as to whether conduct which has not yet taken place will not be in breach of contract or a law (at 356, [47]); and (d)The crucial difference between the seeking of such a declaration and an advisory opinion is whether what is sought is based on a concrete situation as opposed to being divorced from the facts (at 356, [48]).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
As the second respondent did not seek costs of the proceeding below it made no submissions in relation to the learned primary judge’s costs order made on 17 March 2010. The challenge to his Honour’s order as to costs relies on the success of the applicants’ submissions as to errors in the primary judge’s reasons on the substantive issues. The applicants do not contend that s 85A of the NTA has any application. In particular, it is submitted that his Honour erred in taking the decision in Lardil into account. As we have found no such errors, it follows that his Honour’s order as to costs was a proper exercise of the power to award costs and that there is no basis to set it aside. Conclusion The applications for leave to appeal in respect of the orders made by the learned primary judge on 18 December 2009 and 17 March 2010 must be dismissed. Only the first and third respondents have sought costs of the present applications. There is no reason why costs should not follow the event.
Ratio Decidendi
Legal Principle Established
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