Kanak v Minister for Land and Water Conservation (No 2)

[2000] FCA 1553

FEDERAL COURT OF AUSTRALIA

Kanak v Minister for Land & Water Conservation (No 2) [2000] FCA 1553

NATIVE TITLE – “claimant application” – “non-claimant application” – whether non-claimant application can seek a determination that native title exists

PRACTICE AND PROCEDURE – application for leave to appeal against interlocutory judgment summarily dismissing application – application for extension of time in which application for leave to appeal may be made – power of single Judge to grant extension of time

Native Title Act 1993 (Cth) ss 61, 61A, 62, 253
Federal Court of Australia Act 1976 (Cth) ss 24(1A), 25(2)
Federal Court Rules O 52 r 10

DOMINIC WY KANAK v MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW
N 6016 of 1999

LINDGREN J
3 NOVEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 6016 OF 1999

BETWEEN:	DOMINIC WY KANAK APPLICANT
AND:	THE MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	3 NOVEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The motion brought by notice of motion filed on 9 August 2000 be dismissed.

2.   The motion brought by amended notice of motion filed on 23 August 2000 be dismissed.

3.   The applicant pay the respondent’s costs of the motions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 6016 OF 1999

BETWEEN:	DOMINIC WY KANAK APPLICANT
AND:	THE MINISTER FOR LAND & WATER CONSERVATION FOR THE STATE OF NSW RESPONDENT

JUDGE:	LINDGREN J
DATE:	3 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT (No 2)

1. On 9 August 2000, Madgwick J ordered that the application be dismissed and that the applicant (“Mr Kanak”) pay the costs of the respondent (“the Minister”) of the proceeding.  By notice of motion filed on 9 August 2000, Mr Kanak moved the Court for the following orders:

   “1. That the judgement given by Madwick [sic - Madgwick] J 9 August 2000 in this matter be stayed from being given any effect/execution pending this appeal;
   2. That the matter be re-heard before another single Judge of the Federal Court;
   3. That this notice of motion not be listed until the transcript from the proceedings is available on the Court’s file;
   4. That the orders made by Madgwick J be stayed from being entered, pending the hearing of this appeal and any subsequent appeals.”

2. By an amended notice of motion filed on 23 August 2000, Mr Kanak applies for leave to appeal from the judgment of Madgwick J and seeks ancillary orders.  The amended notice of motion supplants the original one but for the sake of clarity I will dismiss the original motion.  It is with the application for leave to appeal that the present reasons for judgment are concerned.

3. The procedural background is as follows.  On 21 September 1999, Mr Kanak filed in the Court a native title determination application headed “Non-claimant Application”.  Mr Kanak sought a determination of native title in relation to

   “Crown land & water at Bondi Beach, Bondi Park, above and/or below mean high water mark.”

4. By a notice of motion filed on 9 November 1999, the Minister applied for an order that the application be struck out pursuant to s 84C of the Native Title Act1993 (Cth) (“the NT Act”) or, in the alternative, that the application be dismissed or stayed pursuant to O 20 r 2 of the Federal Court Rules. Section 84C of the NT Act provides, relevantly, that if an application does not comply with s 61, 61A, or 62 of that Act, a party to the proceeding may apply to the Court to have the application struck out. Order 20 r 2 of the Federal Court Rules is the Court’s well known provision for summary dismissal. Subrule (1) of O 20 r 2 is as follows:

   “Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –
              (a) no reasonable cause of action is disclosed;
              (b) the proceeding is frivolous or vexatious;
              (c) the proceeding is an abuse of the process of the Court,
   the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.”

5. In his reasons for judgment, Madgwick J referred to both s 84C of the Act and O 20

   
   

   r 2, distinguishing between them, and concluded that Mr Kanak’s application should be “dismissed”. It is clear that his Honour exercised the power conferred by O 20 r 2.

6. Mr Kanak seeks leave to appeal on the basis that the order for summary dismissal was an interlocutory order.  An appeal may not be brought from such an order unless the Court or a Judge gives leave to appeal: Federal Court of Australia Act 1976 (Cth) (the “FCA Act”) subs 24(1A).

7. Order 52 r 10 provides, relevantly, that an application for leave to appeal from an interlocutory judgment may be made by notice of motion to a single Judge or to a Full Court and the notice of motion must be filed and served within seven days from the pronouncement of the interlocutory judgement or within such further time as the Court or a Judge may allow.  Mr Kanak’s amended notice of motion filed on 23 August 2000 was filed later than seven days from the pronouncement of the interlocutory judgment by Madgwick J on 9 August.  I treat his amended notice of motion as seeking, not only leave to appeal, but also an extension of time for that purpose.

8. Subsection 25(2) of the FCA Act provides, inter alia, that an application for leave to appeal may be heard and determined by a single Judge or by a Full Court. Does a single Judge have power to hear an application for an extension of time within which to apply for leave to appeal? Paragraph 25(2)(b) of the FCA Act provides that an application for an extension of time within which to institute an appeal to the Court may be heard and determined by a single Judge or by a Full Court, but there is no equivalent provision in relation to an application for an extension of time within which to apply for leave to appeal.  In both cases the time limit (for filing a notice of appeal and for applying for leave to appeal) and the provision for the granting of an extension of time are found in the Federal Court Rules (O 52 r 15 and O 52 r 10 respectively).  The explanation for the difference in treatment in the FCA Act may be that a single Judge is not empowered to hear and determine an appeal itself, and the drafter, appreciating that the argument was not available that a single Judge had power to hear and determine an application for an extension of time within which to institute an appeal “incidentally” to a power to hear and determine the appeal itself, thought that the power to grant an extension of time should be given expressly.  It would, of course, be absurd if an application for an extension of time to apply for leave to appeal had to be heard and determined by a Full Court, while the application for leave to appeal itself was able to be heard and determined by a single Judge. 

9. In my opinion a single Judge exercising the power conferred by par 25(2)(a) of the FCA Act has, as an incident of the express power to hear and determine an application for leave to appeal, power to hear and determine an application for an extension of time for the making of the application for that leave.  I note that O 52 r 10(2) proceeds accordingly: it imposes the time limit for the making of an application for leave to appeal and incorporates provision in it for an extension of time by a single Judge (“within seven days¼or within such further time as¼a Judge may allow”).

10. Accordingly, I proceed on the basis that I have power to grant Mr Kanak an extension of time to 23 August 2000 within which to file his amended notice of motion seeking leave to appeal, as well as to grant that leave to appeal.

11. Should an extension of time be granted?  The original notice of motion filed on 9 August 2000 made the Minister aware that Mr Kanak wished to appeal from Madgwick J’s judgment, the 8 days’ “out-of-timeness” is small, and the Minister has not suggested any prejudice.  I would grant the extension of time to 23 August if the proposed appeal merited a hearing.

12. There is no draft notice of appeal before me but having considered Mr Kanak’s submissions I can confidently dispose of the motion.

13. Madgwick J delivered detailed reasons for judgment extending over 23 pages.  His Honour’s grounds for dismissing the application summarily may summarised as follows:

    (1)A “non-claimant application” may not be made seeking a determination that native title exists, yet that was the kind of determination that Mr Kanak’s “non-claimant application” sought;

    (2)Mr Kanak does not hold a “non-native title interest” in relation to the whole of the area in relation to which the determination is sought, and therefore lacks standing to make a native title determination application.

14. In my respectful opinion, the correctness of these grounds is not attended with such doubt as would warrant the attention of a Full Court.  No purpose would be served by my addressing the terms of the parties’ submissions.  The issues were dealt with by Madgwick J in his extensive reasons for judgment.  I make only the following brief observations:

15. (1) It is clear that a “claimant application” is not just a native title determination application that a native title claim group has authorised to be made, as s 253 of the NT Act defines it to be; it is also an application which claims that native title exists and seeks a determination to that effect. This is implicit in the expression “claimant application” and in the scheme established by the various provisions of the Act referred to by Madgwick J, in particular, ss 61, 61A and 62, including the definition of the first class of persons recognised in s 61 as having standing to apply for a native title determination:

    “(1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group;¼”

    Mr Kanak lacked standing to make a claimant application because he was not authorised to do so by the native title claim group.

16. (2) Not being in a position to make a claimant application, Mr Kanak purported to make a “non-claimant application”. That expression is defined in s 253 of the NT Act to mean “a native title determination application that is not a claimant application”. But it is quite clear the Mr Kanak’s purported non-claimant application is incompetent for two reasons. First, it follows from the fact (mentioned above) that a claimant application is one that claims that native title exists, that Mr Kanak’s application is in truth “claimant” (rather than “non-claimant”), because it makes that claim. Secondly, Mr Kanak does not have any of the kinds of standing to apply allowed by s 61 of the NT Act.  He would have standing to make a non-claimant application for a determination, for example, that native title does not exist, if he came within the second category of person recognised in s 61 as having standing to make an application for a native title determination:

    “(2) A person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought;¼”

    But Mr Kanak clearly does not hold such a non-native title interest.

17. An appeal by Mr Kanak would be doomed to fail.  Accordingly, his motion for leave to appeal should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             3 November 2000

The Applicant appeared in person.
Counsel for the Respondent:	J Waters
Solicitor for the Respondent:	Crown Solicitor of New South Wales
Date of Hearing:	27 October 2000
Date of Judgment:	3 November 2000