Kanak, Dominic Wy v Pipeline Authority & Ors Kanak, Dominic Wy v Comer, Raymond

[1996] FCA 317

IN THE FEDERAL COURT OF AUSTRALIA     )
  )
NEW SOUTH WALES DISTRICT REGISTRY     )    NG 753 of 1995
  )   
GENERAL DIVISION  )

DOMINIC WY KANAK

Applicant

PIPELINE AUTHORITY   

First Respondent

ICI AUSTRALIA OPERATIONS PTY LIMITED

Second Respondent

GORODOK PTY LIMITED

Third Respondent

MINISTER FOR ADMINISTRATIVE SERVICES

Fourth Respondent

NG 37 of 1996

DOMINIC WY KANAK

Applicant

RAYMOND EDWARD COMER, acting chief executive officer of the Pipeline Authority

MARJORIE PARKINSON, secretary of Raymond Edward Comer

SEAN ANTHONY FLOOD, member of the National Native Title Tribunal

PATRICIA LANE, registrar of the National Native Title Tribunal

Respondents

Coram:    Whitlam J
Place:    Sydney
Date:     19 March 1996  

ex tempore

REASONS FOR JUDGMENT

There are before the Court seven notices of motion in two separate proceedings, NG 753 of 1995 and NG 37 of 1996.  The applicant in both proceedings is the same person, and the motions have been heard together.

Matter no. NG 753 of 1995 was commenced on 4 October 1995.  The respondents are the Pipeline Authority, ICI Australia Operations Pty Ltd, Gorodok Pty Ltd and the Minister for Administrative Services.

The first three of those respondents were also parties in matter no. NG 6003 of 1995 instituted by the applicant. That was on appeal pursuant to s 169(2) of the Native Title Act 1993 from a decision of the President of the National Native Title Tribunal ("the tribunal") directing the registrar of the tribunal not to accept an application by the applicant. The decision of the Full Court is reported: Kanak v National Native Title Tribunal (1995) 132 ALR 329. The issues determined by the Full Court in that case provide a factual matrix for the consideration of the present motions. However, it should be noted that the present respondents were joined as parties to that appeal on their own application for the purpose of contesting the relief there sought by the applicant. Having regard to the nature of that proceeding, counsel for the respondents does not rely upon the principles of res judicata.

In his affidavit accompanying the application in NG 753 of

1995, the applicant stated that he was awaiting the decision of the Full Court "in a matter brought under the Native Title Act connected to the same situation". The decision in Kanak was given 23 days later on 27 October 1995.  The subject matter of that proceeding is described in the introduction to the judgment of Lockhart, Lee and Sackville JJ (at 330-331):

"On 10 October 1994 ... the applicant made an application to the Registrar of the National Native Title Tribunal (the tribunal), as a person claiming to hold native land title. The area covered by the application was described by reference to an advertisement, inserted in the Koori Mail of 10 August 1994 by the Pipeline Authority ... The area comprised 17 small sections of watercourses, parks and recreation reserves along a proposed easement of five to six metres width between Wilton, on the southern outskirts of Sydney, and Tempe, a suburb of Sydney. We shall refer to these areas as the "claimed areas". The Pipeline Authority intends to use the claimed areas to construct portion of a pipeline, which is to extend from Moomba in South Australia to Botany, near Sydney. It has brought a non-claimant application under the Native Title Act 1993 (Cth) (the NT Act) in relation to the claimed areas."

(Those 17 sections assume some importance in proceeding NG 37 of 1996.)

The respondents in Kanak sought to uphold the decision of the President on several grounds.  One of them, and the only ground which is relevant for present purposes, was the second ground upon which the President directed the registrar not to accept the application.  The President had not been satisfied that a prima facie claim could be made out on behalf of the applicant.  The Full Court dealt with this issue at 355-356 under the sub-heading "The applicant's claim".  It is sufficient to record their Honours conclusion:

"The applicant's application and subsequent submissions demonstrated quite clearly that he had no relevant connection with the people who may be entitled to enjoyment of the claimed area under traditional laws and customs.  It follows that the applicant was unable to satisfy the President that a prima facie claim could be made out that he holds native title in relation to the claimed areas, either alone or with others.

... the applicant cannot establish any error of fact or law in the determination made by the President under s 63(3) of the NT Act.  To the extent that it is relevant, there is nothing in the additional material sought to be adduced by the applicant which alters this conclusion.  On the contrary, it reinforces the view that the applicant is unable to show that a prima facie claim can be made out that he holds native title."

Against that background I turn to the motions.  Each of the respondents in proceedings NG 753 of 1993 applies under O 20 r 2(1) of the Federal Court Rules for an order for summary dismissal.  If they are successful, that will dispose of the applicant's several motions.  However, it may be noted that by notice of motion filed on 12 March 1996 the applicant seeks to stay this proceeding pending determination by the tribunal of the "Darug claimant application".  His affidavit in support of that motion identifies this application as being lodged on 11 March 1996.

The application filed on 4 October 1995 purports to be brought under s 127 of the Lands Acquisition Act 1989. It does not specify the relief claimed by the applicant, but identifies the particular land as that "the subject of the pre-acquisition declarations concerning the easements required for the Moomba to Sydney ICI dedicated ethane gas pipeline as it relates to appropriate land within the tribal boundaries claimed by the Darug Link group."
The applicant claims to be an "interested person" within the meaning of that expression in s 127(1) of the Act. Section 127 provides:

"127.(1) The Federal Court may, on the application of the Commonwealth or of any interested person:

(a)determine the person who, at any relevant time, held an interest or interests in particular land in relation to which a claim for compensation has been or may be made under this Act;

(b)determine the nature of such an interest or interests; and

(c)make such orders as are appropriate for declaring or adjusting rights or liabilities of persons in connection with the land or interests in the land, or arising out of transactions in relation to, or  mortgages over, the land or interests in the land.

(2)A determination or order under subsection (1) is binding on the applicant, on the Commonwealth and on all other persons who had interests in the land and to whom notice of the application has, before the commencement of the hearing, been given by the applicant, whether or not those other persons were represented on the hearing of the application."

The expression "interested person" is not defined by the Act. Its meaning appears clearly, however, from the context of s 127 itself and the subject matter of the Act, which is concerned with acquisition of land by the Commonwealth pursuant to rights of eminent domain and the requirement of the Constitution for acquisition of property on just terms.

The word "interest" in relation to land is defined in s 6 of the Act, and the nature of the interests that may be acquired under the Act are set out in s 17.  The language of these provisions show that the interests in respect of which a claim
for compensation may be made under the Act are those familiarly encountered under the rubric of real property or land law.

It cannot be argued that the applicant has such an interest in land. Section 127(2) confirms that only such a person can be an "interested person" for the purpose of s 127(1) by the use of the word "other" to describe persons upon whom determinations and orders are binding. That adjective would not be necessary if it had not been intended that an applicant must also have an "interest" in the particular land in relation to which the claim for compensation has been or may be made.

The applicant has cited many well-known authorities on the question of standing, particularly in the area of administrative law, where persons are regarded as having a special interest, that is an interest that elevates their concern to have laws enforced above that of members of the community generally.  I accept that in such proceedings it may well be arguable that someone with the applicant's interest and background as a native title consultant with a professional interest in these matters and membership of organisations concerned with native title, may have a special interest above those of the rest of the community.  But it cannot be seriously argued that he has any interest in this land, the land being, on the kindest view, that in respect of which perhaps the Darug Link has an interest.  The applicant's associate membership of that organisation would not elevate his interest to that of an interest in the land.
     The evidence relied on by the applicant includes as I have mentioned, an application lodged with the tribunal on 11 March 1996.  That application was lodged by one Dennis Charles Gale who is apparently the Chairman of the Darug Link Association Inc.  It relates to land identified in item A6 of that application.  Other material, described in item A13 of that application as "other relevant information", includes a tribal boundary map and attached supporting evidence comprising some eleven pages. 

Part of that material incorporates an article by Mr Jim Kohen of the School of Biological Sciences at Macquarie University published in The Globe, a journal of the Australian Map Circle in 1995.  Mr Kohen's qualifications do not appear from the article but the article appends a bibliography which includes three works of which he was an author or co-author: a 1986 unpublished PhD thesis at Macquarie University, an article in a monograph published by the Department of Prehistory at the Research School of Pacific Studies at the Australian National University, and an article in a collection edited and published by Fairfax Syme Weldon in Sydney.  That material incorporates what Mr Kohen describes as his 1986 revision of the linguistic and clan boundaries of Aboriginal groups in the Sydney region.  The relevant map appears as figure 1 to his article incorporating by dots the area occupied by the Darug. 

The application to the tribunal also includes at page 11 a map which is not part of Mr Kohen's article but which was forwarded by Mr Gale in support of that application.  This map uses a black border to show roughly the same area as Mr Kohen's map.  The northern side of Botany Bay along the Georges River to Liverpool and then down to Appin is claimed as the southern boundary of the Darug area.  Applying what little I may be permitted to know of the geography of Sydney it would be apparent therefore that at least part of the pipeline route from Wilton to Tempe might traverse some of that area. 

However, the claimant application lodged on 11 March 1996 has not yet been accepted. Material from the tribunal shows that that application is being dealt with under reference NC 96/6. Importantly that material correctly describes the area claimed as approximately 10 hectares in size and located on Crown land situated east of Turnbulls Hill between Gloucester Reach and Sussex Reach on the Hawkesbury River near the junction with the Colo River. This area is of course nowhere near the route of the pipeline, and indeed evidence provided on an information and belief basis by the solicitor for the second and third respondents shows that that area is some 50 kilometres from the site of the pipeline route. Accordingly, it is quite apparent that there is no material whatsoever which would suggest that in any way the applicant is a person interested within the meaning of s 127 of the Lands Acquisition Act in relation to the lands the subject of the pre-acquisition declarations concerning the pipeline.

Matter no. NG 37 of 1996 invokes the jurisdiction of the court under s 39B of the Judiciary Act 1903. The applicant
was obviously acutely aware of the limitations of that jurisdiction and in framing his application under O 54A of the Federal Court Rules has been astute to name the Commonwealth officer and the title of the Commonwealth officer in accordance with the rules.

The first two Commonwealth officers named are Mr Ray Comer and a person whom the applicant identified in the application simply as Marjorie, his secretary.  It transpires that the woman in question is Marjorie Parkinson and appearances have been entered by both Mr Comer and Ms Parkinson.  Mr Comer is the acting chief executive officer of the Pipeline Authority and, Ms Parkinson is his secretary. 

In his concluding submissions today the applicant was at pains to make clear that he was not being frivolous in nominating a secretary as a Commonwealth officer for the purposes of this application because the Pipeline Authority had been reduced in numbers and employed, according to his information, only two persons who were Commonwealth officers.  He ascribed some importance to the preparation of documents by secretaries.  He said therefore it was important that he should seek to have Ms Parkinson also made the subject of the writ of prohibition that he seeks.  I accept that that may have been his intention but it seems to me that it is regrettably symptomatic of the trivial and frivolous nature of this proceeding that the applicant should seek to embroil a secretary in these proceedings.  The other two officers named in this proceeding are two persons connected with
the tribunal: Mr Flood, a member of the tribunal, and Ms Lane, the registrar of the tribunal.  The relief sought in the application comprises orders of mandamus against the officers of the tribunal and prohibition against the officers employed by the Pipeline Authority. 

It is convenient to deal with the prohibition first of all. Prohibition is sought for the purposes of restraining the officers of the Pipeline Authority from engaging in virtually any activity in relation to the continued construction or operation of the pipeline "until the question of whether or not the easements over the Crown lands upon which this passage is based are verified by the Court as being valid according to the Lands Acquisition Act". The applicant accordingly links the necessity for what he describes as a writ of prohibition with a delay pending the resolution of proceedings NG 753 of 1995. But, as I already have explained, he has no standing under s 127 of the Lands Acquisition Act to make any such application. 

The claims for mandamus relate to non-claimant applications by the Pipeline Authority in respect of the "17 small sections" mentioned in Kanak.  As appears from that judgment (at 340-341), Mr Flood conducted an inquiry into those claims and, in the course of that inquiry, took the view that a certificate by the registrar of the tribunal that such applications were unopposed was conclusive.  The applicant seeks orders against the registrar of the tribunal, Ms Lane, that she immediately withdraw her certificate and against Mr Flood that he reopen the inquiry.
     Although this proceeding was commenced on 19 January 1996, neither an affidavit nor a statement of claim was filed with the application.  No such document has yet been filed disclosing any basis whatsoever for the relief sought in the nature of mandamus.

Mr Comer and Ms Parkinson apply to have the proceedings dismissed generally.  I was informed at the commencement of the hearing yesterday that the other two officers, Mr Flood and Ms Lane, have been served and would enter submitting appearances. Accordingly, as the Full Court of the High Court explained in Munnings v Australian Government Solicitor (No.2) (1994) 68 ALJR 429, it is necessary to consider whether the proceedings should be allowed to proceed against Mr Flood and Ms Lane.

The authorities on summary dismissal are well known. The High Court has emphasised that the issue on an application for a summary judgment is not whether a plaintiff would probably succeed in the proceeding, but whether it should not be permitted to go to hearing in the ordinary way because it was apparent that it must fail.  The power to order summary judgment may often have to be exercised with exceptional caution.

As Dixon J said in Dey v Victorian Railways Commissioners (1949) 78 CLR 82 at 91: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination".
Accordingly, I am conscious that where a party seeks to have a court exercise summary jurisdiction effectively terminating an action, great caution is to be exercised. It must be quite clear that the applicant does lack a cause of action before he is denied access to the court upon that ground. Where any real question of fact or law emerges upon which the rights of the parties depend, then the question must be determined and it is not possible to say that the action is frivolous or vexatious or indeed, relevantly for present purposes, that a reasonable cause of action is not disclosed. In the present case, however, I am satisfied from the particulars and the evidence that there is no real and genuine controversy at all. In particular, there is no reasonable basis for the application under s 39B of the Judiciary Act.  Accordingly, in each matter the appropriate order is that the proceeding be dismissed generally with costs.

I certify that this and the  preceding 10 pages are a true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

Associate:

Date: 19 March 1996

The applicant, Mr D W Kanak, appeared in person.

Counsel for the respondents:                L G Foster SC

Solicitors for the Pipeline Authority,
Raymond Edward Comer and
Marjorie Parkinson:                  Deacons Graham & James

Solicitors for ICI Australia Operations
Pty Ltd and Gorodok Pty Ltd:           Mallesons Stephen Jacques

Solicitor for the Minister for Administrative
Services, Sean Anthony Flood and
Patricia Lane:   Australian Government Solicitor

Dates of hearing:   18 and 19 March 1996.