New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 2)

[2015] NSWLEC 71

Land and Environment Court

New South Wales

Medium Neutral Citation:	New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) (No 2) [2015] NSWLEC 71
Hearing dates:	1 May 2015
Decision date:	01 May 2015
Jurisdiction:	Class 3
Before:	Pain J
Decision:	See paragraph 16
Catchwords:	PRACTICE AND PROCEDURE – remitter after appeal on question of law – scope of remitter – discretion to reopen case
Legislation Cited:	Aboriginal Land Rights Act 1983 (NSW) Crown Lands Act 1989 (NSW) Land and Environment Court Act 1979 (NSW) s 57
Cases Cited:	Burrell v The Queen [2008] HCA 34; 238 CLR 218 Compagnie Noga D’Importation et D’Exporatation SA v Abacha [2001] 3 All E R 513; (2001) 151 N L J 693 Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 122 ALD 448 McCarthy v McIntyre [2000] FCA 1250 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2014] NSWCA 69 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) [2013] NSWLEC 148; (2013) 198 LGERA 122 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) [2014] NSWCA 377; (2014) 205 LGERA 219 Peacock v Repatriation Commission (2007) FCAFC 156; (2007) 161 FCR 256 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
Category:	Procedural and other rulings
Parties:	New South Wales Aboriginal Land Council and Worimi Local Aboriginal Land Council (Applicants) Minister Administering the Crown Lands Act (Respondent)
Representation:	Counsel: Mr M Wright (Applicants) Ms V McWilliam (Respondent) Solicitors: Chalk & Fitzgerald (Applicants) Crown Solicitor’s Office (Respondent)
File Number(s):	30913 of 2010

EX TEMPORE Judgment

1. I delivered judgment in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act(Nelson Bay) [2013] NSWLEC 148; (2013) 198 LGERA 122 (Nelson Bay (No 1)) on 11 September 2013. The New South Wales Aboriginal Land Council (the Land Council) appealed to the Court of Appeal on 9 December 2013. The appeal was heard on 27 and 28 May 2014. The Court of Appeal gave judgment in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) [2014] NSWCA 377; (2014) 205 LGERA 219 on 4 November 2014. This matter has been remitted from the Court of Appeal which ordered:

(1). Allow the appeal from the judgment of the Land and Environment Court given on 11 September 2013 and set aside the order of the Court dismissing the application.

(2). Direct that the Court consider and determine any outstanding issues raised by the application filed on 12 November 2010 by the appellants.

(3). Order that the respondent pay the appellants' costs of the appeal.

2. The Court of Appeal’s decision in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2014] NSWCA 69 (Limbri (CA)) was delivered on 18 March 2014.

3. The Minister Administering the Crown Lands Act 1989 (NSW) (the Minister) has filed a Notice of Motion dated 30 January 2015 which states:

1. To the extent necessary, the respondent be granted leave to reopen consideration of “Issue 1” as described in Pain J’s reasons at paragraph [86] of the first instance decision in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) [2013] NSWLEC 148;

2. Costs; and

3. Such other and further orders the Court considers necessary.

4. The Minister read the affidavit of Mr Hudson, solicitor for the Minister dated 2 February 2015, which annexed a number of judgments relevant to this Notice of Motion.

5. Five issues are identified at [86] of Nelson Bay (No 1). I resolved issues 1 to 3 in that judgment. The Land Council appealed my decision on issue 3 successfully. Issues 4 and 5 were not considered by me. It is agreed by the parties that issues 4 and 5 are outstanding issues.

6. The Minister wishes to make further submissions in relation to issue 1 concerning lawful use and occupation. His counsel submits that no new evidence will be required and that another approximately two hours of legal argument at the further hearing is all that will be required to address this aspect of the outstanding issue sought to be raised. My finding on issue 1 in Nelson Bay (No 1) was not the subject of any appeal by the Minister.

7. Remittal of matters from the Court of Appeal to the Land and Environment Court is provided for under s 57(2) of the Land and Environment Court Act 1979 (NSW) (the Court Act). Both parties agree that the terms of the remittal order fall within ss (b) “make such other order in relation to the appeal as seems fit”. By way of contrast the remittal order made is not of the whole matter which is provided for by ss (a).

Scope of remitter

8. The Minister argues that strictly speaking no leave to raise any legal argument on issue 1 during the remitted hearing is necessary as “any outstanding issue” is broad and includes the reasoning of issue 1 in light of the changed law in Limbri (CA). The outstanding issue arises because since Nelson Bay (No 1) the Court of Appeal handed down its decision in Limbri (CA) and the reasoning in Nelson Bay (No 1) on issue 1 is potentially overruled by Limbri (CA). The new issue therefore falls within the terms of the remittal order made by the Court of Appeal. The issue is presently outstanding in the Minister’s view. The approach of the Court should be as if the Court has heard argument and reserved judgment. The matter remains at large as the Court’s orders have been set aside, relying on Basten JA (Beazley and Young JJA concurring) in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 (Walker (CA)) at [92].

Conclusion on remitter

9. For the reasons given by the Land Council the remittal order is directed to the outstanding issues 4 and 5, as is clear from the context of the Court of Appeal judgment at [7]. Contrary to the Minister’s submission that the Court of Appeal order is possibly ambiguous and leaves scope for his argument that “any” means “any” issue which the Minister considers should be raised subsequently to the appeal, the order is clearly meant to refer to issues 4 and 5. These were the only issues outstanding at the time of the Court of Appeal’s decision in relation to the application filed in November 2010. The remittal order is limited and does not provide scope for a wider exercise of the Court’s discretion to allow in additional issues not otherwise raised before the Court of Appeal.

10. Walker (CA) was relied on by the Minister but that judgment was considering a remittal order of a whole matter as provided for under ss (a) of s 57(2) in circumstances where an application to rely on new evidence was made to the trial judge. That judgment emphasises the particular remittal order made in relation to a particular case must be closely considered. The paragraphs from the judgment of Basten JA at [81]–[83] identify that important factor. The conclusion about the scope of the remitter in that case at [92] is directed to the context of the remittal order made in that case, which is unlike the facts of this case.

11. Reliance on Peacock v Repatriation Commission (2007) FCAFC 156; (2007) 161 FCR 256 at [6], [17]–[18] and Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 122 ALD 448 at [42] does not assist the Minister. Those cases concerned a remitter from an administrative tribunal, which makes decisions of a different nature to this Court. The parties, particularly the Minister, determine the issues to be heard by the Court under the Aboriginal Land Rights Act 1983 (NSW). That is relevant to the context in which the limited remittal order was made in this case and suggests that the limited remittal order should be so regarded.

Leave to reopen

12. Alternatively, the Minister seeks leave to reopen his case. The parties agree I have power to do so. The Minister submits such a course is open to a trial judge on remitter within the broad discretion of the trial judge, citing Walker (CA) at [39], [81]–[83] as supporting leave to reopen. The applicable principle is for the Court to consider how the changed circumstances since Limbri (CA) suggest it should proceed to reach a just result, Walker (CA) at [115]–[117]. There is no prejudice given that no new evidence need be adduced and the matter is simply one of legal argument. Doing so ensures that there is no legal embarrassment for the court.

Conclusion on leave to reopen

13. I agree with the Land Council that while the Court does have discretion to reopen in the manner contended for by the Minister that discretion should be used sparingly in the interests of finality of litigation and only where exceptional circumstances are established per Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684. The High Court decision of Burrell v The Queen [2008] HCA 34; 238 CLR 218 referred to by both parties at [18]–[19] is particularly instructive. The Minister emphasised based on Walker that the position the Court should consider itself to be in is where a judgment is reserved. However, the context of this case is a limited remittal order from the Court of Appeal. The absence of final orders does not alter the fact that issue 1 was fully argued before me and was not the subject of appeal which could have been implemented after delivery of Limbri (CA) some two months before the hearing of the appeal in this matter. I adopt par 39 of the Land Council’s submissions to the effect that the Court should avoid putting itself in the position of hearing what amounts to an appeal against his or her own decision, citing Rix LJ in Compagnie Noga D’Importation et D’Exporatation SA v Abacha [2001] 3 All E R 513; (2001) 151 N L J 693 at [47].

14. I consider there is prejudice to the Land Council as it is at risk of rearguing a matter that has been determined, circumstances analogous to those in McCarthy v McIntyre [2000] FCA 1250 at [30]–[33] in the context of leave to rely on fresh evidence after delivery of judgment. That judgment emphasised that the Minister as the party seeking leave must make a case for the exercise of discretion in its favour. I consider such a case has not been made out.

15. While the parties ventured some views on whether in fact Limbri (CA) provided any basis for revisiting my decision on issue 1 in this matter it is unnecessary that I consider these submissions in the exercise of my discretion.

16. In conclusion, the terms of the remitter limit what remains to be determined. The Minister’s Notice of Motion is dismissed.

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Decision last updated: 08 May 2015