Ngurampaa Ltd v Brewarrina Shire Council
[2014] NSWSC 524
•22 April 2014
Supreme Court
New South Wales
Medium Neutral Citation: Ngurampaa Ltd v Brewarrina Shire Council [2014] NSWSC 524 Hearing dates: 22 April 2014 Decision date: 22 April 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1)The subpoena issued at the request of the plaintiff on 26 February 2014 addressed to Mr Ross Earl, General Manager, Brewarrina Shire Council be set aside.
(2)Order the plaintiff pay the costs of the first and second defendant of and incidental to this application on the usual basis after they have been agreed or assessed.
(3)Confirm the listing of the matter for directions before the common law case management registrar at 9am on 23 April 2014.
Catchwords: PROCEDURE - civil - subpoena - set aside; application to - abuse of process - oppressive - no legitimate forensic process Legislation Cited: Aborigines Protection Act 1909 (NSW) (repealed)
Judiciary Act 1903 (Cth), s 78B
Supreme Court Act 1970 (NSW), ss 19, 75
Uniform Civil Procedure Rules 2005 (NSW), r 7.2, 7.3, 33.4Cases Cited: Mabo and Others v The State of Queensland (No 2) (1992) 175 CLR 1;
National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372;
The Commissioner for Railways v Small (1938) 38 SR (NSW) 564;
Walker v The State of New South Wales (1994) 182 CLR 45;Category: Interlocutory applications Parties: Ngurampaa Ltd (plaintiff)
Brewarrina Shire Council (first defendant)
Minister for Primary Industry and Small Business (second defendant)Representation: Counsel:
B Eckford (leave to appear in person for the plaintiff)
S Bell (first defendant)
D Byers (second defendant)
Solicitors:
Crown Solicitors Office (second defendant)
File Number(s): 2014/58631
ex tempore Judgment
HIS HONOUR: By summons issued on 25 February 2014 the plaintiff company seeks alternative forms of relief. First, it seeks leave to appeal from an interlocutory decision of O'Brien LCM given on 23 January 2014; secondly, in the alternative, it seeks prohibition or, properly, an order in the nature of prohibition preventing the Local Court from considering the case brought in that court by the first defendant, Brewarrina Shire Council.
Other forms of relief claimed in the summons seem to be variations upon that alternative relief as they all seek by different and various formulations an order by way of prohibition.
The sole ground upon which this relief is sought is expressed as follows: "The magistrate failed to consider the defence relied upon in Michael Eckford's affirmed affidavit of 21 January 2014, that is; Who holds the Allodial title of the lots the subject of the rates notice by the first defendant, Brewarrina Shire Council?."
The second defendant is the Minister for Primary Industry and Small Business. How it could be said she was a necessary or proper defendant in these proceedings is not clearly articulated before me. As best as I can understand it, the proceedings are brought against the Minister because she has some responsibility for the administration of both the Crown Lands and Western Lands legislation. However, there is no application before me on behalf of the Minister to summarily dismiss the proceedings brought against her and I will leave those questions unanswered for present purposes.
Today I am dealing with two applications to set aside a subpoena that has been issued by the plaintiff in the course of its preparation of the appeal. Each of the defendants has sought relief under r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) and each relies essentially on the same grounds. The first is that the subpoena was irregularly issued because no leave was sought prior to it being issued in contravention of r 7.3. Leave is required where a party is not represented by a solicitor. That is, as in the present case, although a corporation, there is no solicitor and Mr Michael John Eckford is a director and chairman of the corporation. He has been conducting the proceedings on behalf of the company. There has been no objection to Mr Eckford appearing on behalf of the company before today and accordingly I granted leave for him to represent the company today. Whether that leave should be extended to other occasions is a matter to be dealt with as and when those occasions arise. Strictly speaking, the rules make clear that a corporation ought to be represented by a solicitor and I refer in particular to r 7.2.
The background to the proceedings in this Court, and to the present application, is that the plaintiff company is the owner of land in the Shire of Brewarrina. There is no evidence before me about the company's title but Mr Eckford explained his case to me during the course of argument. Following the decision of the High Court of Australia in Mabo and Others v The State of Queensland (No 2) (1992) 175 CLR 1, and in response to that decision, the Federal Government, amongst a raft of measures, transferred land to certain dispossessed aboriginal people who may not have been able to establish a customary native title, as it was then put, recognised by the common law in Australia, to identifiable land.
The plaintiff company acquired the land, according to Mr Eckford, and I accept what he said for present purposes, on behalf of the Euahlayi people.
The Brewarrina Shire Council sued the company for unpaid rates due for the land in the Local Court. Those proceedings were defended by the company on a number of bases. To put it in summary form: first, it was said that the company was not liable for the rates because the Euahlayi people had unilaterally declared their independence from the Commonwealth of Australia and were beyond the reach of New South Wales law; secondly, it was said that in any event it could not be shown that the Allodial title, as it was referred to by some of the Justices, had ever passed from the Euahlayi people and accordingly they were exempt from paying rates under State law.
As I understand the argument - and I am putting it hesitantly meaning no disrespect for the way it was advanced - the argument of the plaintiff company is that as beneficial title never passed from the Euahlayi people to the Crown, the State government could not authorise a local government body to levy rates in respect of it. I was not taken to the legislation, but again, as I understand the argument, it was that although there is no express exemption in the legislation of the company from the liability for rates, that is a necessary conclusion as a matter of law in the broad circumstances I have outlined.
What happened in the Local Court was that a defence raising those matters had been filed, and in the absence of the plaintiff, I infer, because no complaint was made about this, after it had received notice, the magistrate struck out the defence. There is no evidence before me of the reasons of the magistrate but I assume his honour decided the defence disclosed no defence known to law. In due course the council obtained default judgment for the amount of the outstanding rates in accordance with the Uniform Civil Procedure Rules.
Next, the company brought a motion seeking relief which included the setting aside of the default judgment. It was that application which was heard by O'Brien LCM on 23rd January 2014. Again, I don't have his Honour's reasons, and it is not necessary they should be before me for the purposes of this application, but the application was refused. I infer his Honour was not satisfied that the defence, which the present plaintiff wished to ventilate, was insufficiently tenable at law to justify setting aside the default judgment and allowing the matter to proceed to a hearing on the merits.
I think it should be pointed out that the plaintiff's notice of motion, which had been filed on 29 November 2013, sought to set aside the orders striking out the defence as well as setting aside the entry of judgment and also sought to have the proceedings adjourned under the provisions of s 78B of the Judiciary Act 1903 (Cth) because the defences outlined above were said to raise constitutional issues.
I should say at this point that before me Mr Eckford does not rely upon the Unilateral Declaration of Independence. He acknowledges, properly in my view, that this matter is not justiciable in this Court. Accordingly, it seems that the real question that the plaintiff wishes to ventilate on appeal is its argument that there is an implied exemption applying to it from the liability to pay rates, or perhaps immunity might be a better word in the circumstances I have outlined.
It is necessary to set the circumstances out in some further detail in order to understand the point that each of the defendants make about the subpoena to which I now turn.
Primarily these proceedings are an application for leave to appeal from an interlocutory decision of the Local Court of New South Wales. In the alternative, relief by way of judicial review of the Magistrate's decision is sought. As the complaint essentially relates to what might be referred to as a pure point of law, it is probably difficult to understand why further evidence might be receivable in the context of the present proceedings. To the extent to which the claim in the alternative might depend on jurisdictional error, and also because the decision appealed is interlocutory, it may be that further evidence in addition to that which may have been advanced before the magistrate might be receivable by this Court on the hearing of the proceedings (see ss 19 (2) and 75A of the Supreme Court Act 1970 (NSW)).
There are three grounds advanced to set aside the subpoena: first, the irregularity of the subpoena being issued without leave; secondly, the consideration that the subpoena is oppressive in the sense that in substance it seeks discovery; thirdly, there is no legitimate forensic purpose for issuing the subpoena
In answer, Mr Eckford argued that the central question was that he was trying to determine by issuing the subpoena whether and when title to the subject land was transferred to the Crown. The subpoena is addressed in the following terms:
"Name: Mr Ross Earl, General Manager.
Address: Brewarrina Shire Council, 57 Bathurst Street, Brewarrina, New South Wales 2839."
It is in no way addressed to the second defendant, although it is common ground that the plaintiff purported to serve it upon the Minister in the expectation that it would be complied with by her as an order of the court.
Moreover, on the basis of evidence I accept, it seems that Mr Earl is not the general manager of the Brewarrina Shire Council but of the Bourke Shire Council. However, the first defendant takes no point about that and proceeds on the basis that it understands that it is a subpoena directed to it and it is prepared to deal with the subpoena as though it was addressed to Brewarrina Shire Council by its proper officer should it fail in its application.
For present purposes it is sufficient to note that the subpoena requires the production of all original documents which may relate to eight discrete subject matters. The first category is all original documents "by virtue of which the Crown, the New South Wales government and the Brewarrina Shire Council claim to be the proprietor of the ancient allodial title" of the land; the second category calls for the production of all documents "by virtue of which" the same parties "claim as the source of their alleged head of power" through which they are entitled to rule over the Euahlayi people and their land; the third category calls for the production of all documents "by virtue of which" the same parties "claim title and right to operate a shire council"; the fourth category calls for all documents "by which" the same parties "claim they operate a shire council with the express permission" of the Euahlayi people; the fifth category calls for the production of all documents "by which" the same parties "operate a shire council by virtue of their secession in Crown title from a military occupation...of the ancient lands" of the Euahlayi people; the sixth category calls for the production of all documents "by which" the same parties "claim to operate a shire council" by virtue of what might be called a treaty with the Aboriginal people generally; the seventh category calls for the production of all documents "in respect of the massacre of the Euahlayi people at Hospital Creek" in 1848; and the eighth category calls for the production of all documents "in respect of the forced removal of the Euahlayi children" from the commencement of the former Aborigines Protection Act 1909 (NSW) (repealed).
I think by stating these matters in this way one can see that what is required by the subpoena is a very wide range of documents, if they exist, and in some cases they must I suppose, touching upon a variety of subject matters which could not possibly have anything to do with the legal issues in this case. With no disrespect to Mr Eckford, the categories seem to be premised upon an erroneous view of the effect of the High Court decision in Mabo.
This is not the occasion for a detailed exposition about the meaning and effect of that seminal decision, however at 86-87 Deane and Gaudron JJ said:
As has been seen, it must be accepted as settled law that the
provisions of the common law which became applicable upon the
establishment by settlement of the Colony of New South Wales
included the system of land law which existed in England and that
the consequence of that was that the radical title to all land in the
new Colony vested in the Crown. If there were lands within the
Colony in relation to which no pre-existing native interest existed,
the radical title of the Crown carried with it a full and unfettered
proprietary estate. Put differently, the radical title and the legal and
beneficial estate were undivided and vested in the Crown.
Thereafter, any claim by the Aboriginal inhabitants to such lands by reason of possession or occupation after the establishment of the Colony must be justified by ordinary common law principles or
presumptions which apply and (at least theoretically) applied
indifferently to both native inhabitants and Europeans (e.g. possessory title based on a presumed lost grant).
On the other hand, if there were lands within a settled Colony in
relation to which there was some pre-existing native interest, the
effect of an applicable assumption that that interest was respected
and protected under the domestic law of the Colony would not be to preclude the vesting of radical title in the Crown. It would be to reduce, qualify or burden the proprietary estate in land which would otherwise have vested in the Crown, to the extent
which was necessary to recognize and protect the pre-existing native interest. Obviously, where the pre-existing native interest was "of a kind unknown to English law", its recognition and protection under the law of a newly settled British Colony would require an adjustment either of the interest itself or of the common law: either a transformation of the interest into a kind known to the common law or a modification of the common law to accommodate the new kind of interest. (Footnotes omitted)
To similar effect is the judgment of Brennan J at 47-48. As I understand what his Honour said there it was necessary to accept that the doctrine of tenure operated as a matter of law upon the settlement of Australia by the English Crown and that that doctrine "would attract the incidents appropriate to the tenure". His Honour continued:
By attributing to the Crown a radical title to all land within a
territory over which the Crown has assumed sovereignty, the
common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown's demesne. The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown's purposes. But it is not a corollary of the Crown's acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial
ownership of that land to the exclusion of the indigenous inhabitants.
I think it also relevant to refer to the decision of Mason CJ in Walker v The State of New South Wales (1994) 182 CLR 45 at 49, which I raised with Mr Eckford in the course of our discussion. It seems to me that this decision is relevant to the question of whether the circumstances relied upon by Mr Eckford create an exception to, or an immunity from, the State legislation which authorises the levying of rates.
In rejecting a proposition that the criminal statutes of New South Wales did not apply to people of Aboriginal descent by parity of reasoning with Mabo Mason CJ said:
It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle. The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters. The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting. And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose. (footnotes omitted)
Two propositions relevant to the determination of the present question follow from those statements of the highest authority which bind me. The first is that the question of whether the Crown acquired title to the land of Australia when it assumed sovereignty is not a question of fact, rather it is a question established as a proposition of law by the common law in Australia. The second proposition, which follows from Walker, is that the extent to which the plaintiff may be entitled to an exemption or immunity from rates legislation must depend upon a pure question of statutory construction and not upon a question of fact which can be informed by evidence.
Because the subject matter of the proposed appeal is an interlocutory decision, as I have already pointed out it may be conceivable that additional evidence would be permitted by the court in the exercise of its appellate jurisdiction. It is also conceivable that if a question of jurisdictional error arose in relation to the alternative claim for relief by way of prohibition that evidence might be admissible. But it seems to me that the material sought in these subpoenas would not in any way, shape or form be admissible in evidence on the hearing of the summons in due course, because it could not be relevant.
Naturally I understand that admissibility in evidence is not the test in terms of whether a subpoena should be set aside as oppressive. Indeed, frequently a party may have a legitimate forensic purpose in subpoenaing documents which, it may be said, are very unlikely ever to see the evidentiary light of day. However, it does seem to me that the principles of fundamental law to which I have referred indicate that the plaintiff can have no legitimate forensic purpose in seeking the documents described in the schedule to the subpoena and necessarily must have an ulterior purpose in issuing the subpoena. Accordingly the subpoena in my judgment is an abuse of process.
I must say, even if it were relevant to allow evidence to be led as to whether or not the Crown ever acquired title to the land the subject of these proceedings categories 7 and 8 could not on any conceivable formulation of the relevant legal questions have anything to do with that matter and of themselves would be objectionable.
In proceeding to what I have described as the question of legitimate forensic purpose I would not wish it to be thought that I was against the applicants in relation to the other grounds. In my judgment the wide language used in describing each of the categories of document described in the schedule to the subpoena offends the rule clearly established by TheCommissioner for Railways v Small (1938) 38 SR (NSW) 564 and National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 382 that it is an abuse of process to use a subpoena for the purpose of discovery. As Moffat P put it in the latter case:
The essential feature of discovery... is that the person to whom the subpoena is addressed will have to make a judgment as to which of his documents relate to issues between the parties. It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use ofa subpoena to impose this obligation. It follows that it is an abuse to use any subpoena, i.e. even to a party to obtain discovery.
In this particular case the abuse is, if I may put it this way, worse because it not only seeks to impose upon the person to whom the subpoena is directed the obligation to make such a judgment but also requires him to make such a judgment about false issues in the sense that they could never arise in the context of this litigation. Had I not decided there was no legitimate forensic purpose animating the issue of the subpoena I would have set it aside in whole as being oppressive in the sense discussed by Moffat P.
Turning then to the question about the irregularity constituted by the contravention of r 7.3 in issuing of the subpoena, the incident of that irregularity falls unevenly on the applicants. Had I been satisfied that the issuing of the subpoena was animated by a legitimate forensic purpose, and that it was not bad as to form, I would have granted leave nunc pro tunc to issue the subpoena to the Brewarrina Shire Council. It seems to me that it was clearly directed to it, as it accepts, and it was the moving party in the court below. If its legal authority to levy rates were a question of fact then it seems to me it would be permissible to subpoena it for material documents.
The same is not true of the second defendant. First, the subpoena cannot by any process of construction be understood as being directed to her. Secondly, it is difficult to discern any proper claim for relief against her. In fact there is none as I read the prayers for relief contained in the summons, and she was not a party to the litigation in the Local Court. The imposition of the obligation on her to produce documents of this wide-ranging nature especially when there is no evidence that the minister has under her power, possession or control any documents which might exist covered by the subpoena tells against a grant of leave.
By saying this I am obviously well aware that even strangers to litigation can be required by subpoena to produce documents to a court, but the type of considerations which underpin the decisions in Small and Waind have particular application to persons receiving subpoenas who are not proper or necessary parties to the litigation.
For these reasons I make the following order:
(1) The subpoena issued at the request of the plaintiff on 26 February 2014 addressed to Mr Ross Earl, General Manager, Brewarrina Shire Council be set aside.
I have heard the parties further in relation to question of costs. The general rule, of course, is that costs should follow the event. Mr Eckford has submitted that in the circumstances of this case a proper exercise of my discretion would be that each party should bear his, her or its own costs. I have considered this matter and it seems to me that no proper basis has been demonstrated engaging the discretion for a special costs order of the type Mr Eckford seeks. The general rule that costs follow the event which informs all civil litigation should apply. Accordingly I also
(2) Order the plaintiff pay the costs of the first and second defendants of and incidental to this application on the usual basis after they have been agreed or assessed.
(3) Confirm the listing of the matter for directions before the common law case management registrar at 9am on 23 April 2014.
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Decision last updated: 08 May 2014
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