Northern Land Council & Anor v Quall & Anor

[2019] HCATrans 232

[2019] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D9 of 2019

B e t w e e n -

NORTHERN LAND COUNCIL

First Applicant

JOE MORRISON AS CHIEF EXECUTIVE OFFICER OF THE NORTHERN LAND COUNCIL

Second Applicant

and

KEVIN LANCE QUALL

First Respondent

ERIC FEJO

Second Respondent

Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 15 NOVEMBER 2019, AT 9.30 AM

Copyright in the High Court of Australia

MR S.A. GLACKEN, QC:   If the Court pleases, I appear with MR R.W. KRUSE for the applicants in the matter.  (instructed by the Northern Land Council)

MR A.L TOKLEY, SC:   If the Court pleases, I appear with my learned friend, MR A.K. FLECKNOE‑BROWN, for the respondent Quall.  (instructed by Robert Welfare & Associates)

MR P.F. McINTYRE:   If the Court pleases, I appear for the respondent Fejo.  (instructed by McQueens Solicitors)

MR L.S. PEATTIE:   If the Court pleases, I appear for the Northern Territory of Australia as intervener.  (instructed by the Solicitor for the Northern Territory)

GAGELER J:   Mr Glacken, I see that you have anticipated one of the points I was going to raise with you.

MR GLACKEN:   Yes.  Crudely speaking, we may have overreached somewhat.  There was a premise to our ground of appeal that there had been the fact of delegation or authorisation.  It occurred to me that, on reflection, the ground of appeal as expressed at application book 106 perhaps overreached in that respect so we have recast it.  We circulated this revision yesterday to the parties.

NETTLE J:   It is purely a question of whether it was delegable, is it not?

MR GLACKEN:   Yes, precisely, and that is the terms of the declaration made below that we challenge.

NETTLE J:   Were you to succeed in that it would need to go back then to be determined?

MR GLACKEN:   Yes, because, unfortunately, the Full Court did not deal with our application to adduce further evidence.

NETTLE J:   Yes.

GAGELER J:   You are still prepared to give the undertaking as to costs indicated at paragraph 40?

MR GLACKEN:   Yes, which the Northern Territory has joined in. 

GAGELER J:   Yes. 

NETTLE J:   Mr Glacken, I wanted to ask you, if I might, whether section 203(FH) of the Act is thought in any way to bear upon the question of delegability.

MR GLACKEN:   Yes.  The section has some nuances to it.  Your Honours might appreciate it.  It is a common provision that has its origins - for example, I recall the Gibbs Committee reviewing the Criminal Code many years ago and we find it in several Commonwealth statutes.  It is directed primarily – its operation to criminal offences.  There are only two relevant penalties, I recall, within Part 11 of the Act dealing with representative bodies upon which it latches. 

Can we say that at the very lowest we put it as a construction point that Part 11 acknowledges that the performance of functions will necessarily be done by – as the section expresses from memory – directors, employees and agents of the body.  That is the lowest we put it.  We could put it higher, and we would probably put it higher on appeal with developing the argument in more detail. 

NETTLE J:   Thank you.

GAGELER J:   Yes, thank you, Mr Glacken.  Mr Peattie, are you prepared to give an undertaking in the terms that are indicated in your written submissions at page 272 of the application book?

MR PEATTIE:   Yes, your Honour.

GAGELER J:   Yes, thank you.  Mr Tokley.

MR TOKLEY:   Your Honours would like to hear from me as to why you should not grant special leave to appeal, I take it?

GAGELER J:   Yes.

MR TOKLEY:   Your Honours, the matter is an unsuitable vehicle for the grant of special leave for a number of reasons, but perhaps the principal reason is that the arguments now sought to advance the case of special leave to appeal were not, in fact, advanced before the court below.  In fact, a conscious decision was made not to run an administrative necessity argument in the court below, and that can be found in the decision of the court below at application book pages 60 and 61.  If your Honours would please go to that.  Your Honours will see at the top of page 60, at the very first line, where their Honours say from over the page:

while the judgment also contains a helpful analysis of the Carltona principle, no party relied upon that principle here).

They repeat the statement at page 61, in paragraph 52, in the second‑last sentence of paragraph 52:

as is broadly reflected in the Carltona principle.  As noted above, the latter concept is not relied upon in this proceeding so it is unnecessary to summarise that part of his Honour’s reasons in any detail.

Moreover, your Honours, when the matter was before Justice Reeves as the single judge, his Honour addressed the Carltona principle, and that can be found at application book page 23.

GAGELER J:   Mr Tokley, I might have misunderstood the argument sought to be put against you, but this is a case about delegation, not about the Carltona principle.

MR TOKLEY:   Yes, your Honour. Your Honour, as I understand it, the argument that is put against us is the point of administrative necessity arising out of the Carltona principle.  If your Honours would please go to page 254 of the application book and to paragraph 14 - this is in the reply – your Honours will see:

The Applicants’ case is that Carltona is, in substance, an implied authority or power to delegate –

They refer back to the special leave application at paragraphs 24 to 25 and if one then goes to page 111 of the application book and to paragraph 24 under the heading “Administrative necessity” in the second sentence: 

Mason J noted that Carltona and O’Reilly v State Bank of Victoria Commissioners illustrate –

the principle, and then reading through the quote:

by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.

Then over to the next page, the point is developed, referring to Ex Parte Forster; Re University of Sydney.  Then paragraph 25 arises:

not so much to establish a delegate/agent dichotomy . . . As “delegation” is the conferral of authority or power to act . . . The Carltona principle is, in substance, an implied authority or power to delegate.

Now, against that, one of the authorities which is mentioned by my learned friend’s argument is the well‑known case of Peko‑Wallsend, which was a subsequent decision to O’Reilly.  If I can just give your Honours the reference and page - it is (1986) 162 CLR page 37 through to 38, where his Honour Justice Mason, as he then was, talks about a submission that was raised in the court below and about whether an implied power to delegate might arise.  What he says is this: 

The presence of an express statutory power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others.

His Honour then goes on to refer to the Carltona principle.  So, although the case here is put as one of administrative necessity, in truth it is the Carltona principle. What his Honour Justice Mason says in that case and in O’Reilly’s Case is that underlying the Carltona principle is the idea of administrative necessity. 

Now, as I say, in a footnote to our submissions we refer to the relevant passages of transcript of the argument in the court below, and if I may provide to your Honours just the relevant extracts from the transcript in the court below. 

GAGELER J:   This is to make the point that you have already, I think, made from the face of the judgment?

MR TOKLEY:   Yes, and not only that, your Honour, there was a conscious decision not to run an administrative necessity case in the court below.  So it is not one of those cases where by inadvertence argument was not taken.  What happened in the court below – and it is apparent from the transcript provided to your Honours ‑ ‑ ‑

GAGELER J:   Just state what you say happened.

MR TOKLEY:   Your Honours, Justice Griffiths, the presiding judge in the court below, put it to Mr Willis, counsel for the NLC, that if they were going to argue another basis for their case they should do so.  Mr Willis was given the lunchtime break to think about it, then came back after lunch and said that they were not running an administrative necessity authorisation or Carltona Case.

GAGELER J:   So this relates, does it, to the words “or authorise the performance of its certification functions” in the revised ground of appeal?

MR TOKLEY:   Well, your Honour, I was going to speak about the revised ground.  The revised ground creates a problem in the sense that the specific declaration that the court granted us – and the court in its reasoning did not address the question of authorisation, so the ground which said that the Full Court erred in holding that the first applicant did not have power to delegate or authorise the performance of its certification functions does not reflect the reasoning of the Full Court. 

That reasoning can be found at paragraphs 138 and 139 of the Full Court’s judgment, which I think, your Honours, is at pages 90 and 91 of the application book.  If your Honours would please go to paragraph 136 on page 90 your Honours will see the Full Court there – the majority in the Full Court of Justices Griffiths and White summarising the point:

The upshot of this analysis is that while the NLC is able to obtain assistance . . . it cannot delegate or otherwise “outsource” the actual performance of those functions.

Then, at paragraph 138, the last sentence:

Moreover, if there was a power to delegate those certification functions –

and the like. So our relief was the declaration that is to be found at page 106 – that the first appellant did not have the power to delegate its certification functions under section 203BE(1)(b) of the Native Title Act to its chief executive officer.  There was a reason for that being a very narrow ground.  That simply reflected the finding of the Full Court that the NLC did not have the power to delegate its certification function.  There was no finding as to authorisation and, in terms, there was no mention of authorisation.  The court’s reasons for judgment are at page 101 as to why they gave the declaration in those terms.  At paragraph 5, page 101:

The terms of the proposed declaratory order are narrower than what is expressed at [136] . . . The Court confirms the views expressed at [136], but it is prepared to make a declaratory order in substantially similar terms to those proposed by the respondents and the Northern Territory.

So, in one sense, the ground of appeal appeals against something that was not actually found by the court below or because of the language that was argued by the court below did not form part of the argument addressed to the court below.

GAGELER J:   Insofar as a Carltona‑type argument might be sought to put to this Court is there some difficulty in you meeting it?

MR TOKLEY:   No, your Honour.  No, in this sense - we can meet it on its merits, so to speak, as a matter of argument.  There is no evidence in the court below that could support the impracticality, which is part of the Carltona principle referred to in the passage that is quoted in the judgment I took your Honours to.

GAGELER J:   It is a question of construction, is it not?

MR TOKLEY:   Your Honours, the principle, as I understand it, is that it is ‑ ‑ ‑

GAGELER J:   Really, the question is, is it some part of your argument to say that this is a point that could have been met by evidence?

MR TOKLEY:   Yes, your Honour, thank you, yes, it is.

GAGELER J:   It is?

MR TOKLEY:   It is, yes.

GAGELER J:   What was the nature of that evidence?

MR TOKLEY:   The nature of that evidence was the type of work or functions that the NLC performs, how many times it performs that - for example, we do not know whether this is a one‑off, completely one‑off exercise ‑ ‑ ‑

NETTLE J:   There is some evidence that it is not, is there not?  I have seen an affidavit somewhere that this affects a whole lot of these things.

MR TOKLEY:   Your Honour, that is the elision if I can put it this way.  Nobody knows, and there is no evidence to this effect, whether the other representative bodies have engaged in delegations of this type.  You see, the way the matter was argued in the court below was there was evidence that the full council of the Northern Land Council had delegated its powers to its chief executive officer, that was the way it was run in the court below, and in fact it was pursuant to those powers of delegation that the certificate was made.

NETTLE J:   I notice that some of these bodies are corporations under the Corporations Act that are not necessarily comprised of Aboriginal persons.

MR TOKLEY:   Correct.

NETTLE J:   It would be remarkable if they sat down in a company and general meeting in order to make a resolution of this kind.

MR TOKLEY:   Well, your Honour, again there is just no evidence as to how any of those other bodies function.

NETTLE J:   Well, I will take judicial notice of the fact that a company normally acts by its directors.

MR TOKLEY:   Yes, your Honour, I understand that point, but what we do not know is whether there was any delegation from, for example, the board of directors to a director or from - in any of the other bodies that are said to have been affected by this.  So the Court, in my respectful submission - I am not seeking to persuade your Honours that there is not an issue to be decided, so to speak, but we may find that by the time we get before a Full Court that the evidence simply does not support a lot of the arguments that are sought to be advanced, or the conclusions.  One reason why the declaration is so narrow is that it is only this Land Council, its chief executive officer, in respect of this one ILUA.  It only goes broader if people want to see it as a broader proposition, but in my respectful submission it does not‑ ‑ ‑

GAGELER J:   Well, the court was really quite careful to say that it was confirming views it had expressed at paragraph 136 of its judgment ‑ ‑ ‑

MR TOKLEY:   Yes, your Honour, that is correct.

GAGELER J:   ‑ ‑ ‑ which as I read them, are to the effect that this function is a non‑delegable function.

MR TOKLEY:   Yes, this one function is a non‑delegable function - under 203(1)(b) only is a non‑delegable function, so it is not talking about facilitation or mediation or dispute resolution, and none of the other functions.  It is the one and only - and the unique thing about that function is that the Northern Land Council is required to express an opinion as to certain matters.  In none of the other functions is there a requirement that an opinion be expressed.  Moreover, a lot of the other functions are administrative in their nature.  They do not have the sort of impact upon the rights and liabilities of persons that this function has, and if I may say so ‑ ‑ ‑

NETTLE J:   But this function is not determinative, is it?  It is just a halfway house towards final approval.

MR TOKLEY:   Correct, your Honour, yes.

NETTLE J:   There can be objections ‑ ‑ ‑

MR TOKLEY:   Yes, your Honour.

NETTLE J:   ‑ ‑ ‑ and exceptions taken to it and all sorts of things.

MR TOKLEY:   Correct, your Honour.  In fact, at the end of the day, all that one would have to do is to go back to the body, the representative body, to put before them the document and to seek their approval of this document in terms of the opinion that is required.

NETTLE J:   It is subject to judicial review, also, is it not?

MR TOKLEY:   Yes, your Honour.  This was an application for judicial review.

NETTLE J:   So, it is subject to judicial review and it is not the end of the road.

MR TOKLEY:   No, it is not.

NETTLE J:   Both of which considerations would tend to suggest that it does not have to be – or that it may be performed by a delegate, generally speaking, in light of the jurisprudence that applies to these things.

MR TOKLEY:   The cases tend to indicate that when an opinion is required that it is the other way – that the opinion is personal, in the context of ministers.

NETTLE J:   It depends on the sort of opinion.  If it is a matter of high government policy, obviously; if it is just objective questions where people who have been given notice and an opportunity to attend, it is factually objective – as it is here, as it seems.

MR TOKLEY:   As it seems, your Honour.  But the other problem in terms of the unsuitability of the vehicle – and there are several – I have just mentioned the principal one – is that even if the applicants are successful on an appeal it has to go back to the Full Court on a remitter ‑ ‑ ‑

NETTLE J:   Yes.  

MR TOKLEY:   ‑ ‑ ‑ for further consideration and the Full Court ‑ ‑ ‑

GAGELER J:   It does not make it an inappropriate vehicle to deal with a single point of principle.

MR TOKLEY:   Your Honour, it does not make it an inappropriate vehicle but it is the utility of this Court having to decide a question in the absence of any assistance from the court below – the matter having to go back where even if they are correct on a point of principle on the evidence that they were advancing, it was, again, all about delegation and the Full Court expressed the view ‑ ‑ ‑

NETTLE J:   I suppose we have the benefit of the primary judge’s analysis of it and the lack of evidence did not appear to get in the way of that.

MR TOKLEY:   Your Honour, the primary judge had said at page 22 of the application book in paragraph 38 in the third sentence:

However, it does not avail the NLC in this matter because it has not produced any evidence that its Council provided such an authorisation to its CEO ‑ ‑ ‑

NETTLE J:   No, no, I understand that.  I am talking about the evidence as to whether this is such a one‑off thing that the principle would not apply elsewhere and that you are, as it were, embarrassed if we were to deal with the matter on the basis of administrative necessity because you might have adduced evidence in the Full Court to contradict the possibility of that being realistic.

MR TOKLEY:   Yes, your Honour.  Yes, exactly, your Honour, because if the principle is the impracticality – as your Honour knows – I am not trying to tell your Honours how to suck eggs, so to speak – Carltona was a ministerial case where it is obvious that a minister cannot deal with thousands of requests and the various tasks that ministers have to carry out.

So, here, there is just no evidence at all to suggest that it is impractical – apart from the assertion that there are 78 fulltime members of the Northern Land Council and five additional members – 83 – and the fact we meet twice a year – apart from that assertion, there is no evidence before the court that it was impracticable for the Northern Land Council to do what was being suggested in this case and there is simply no other evidence. 

So, in terms of impracticality, what your Honours will be asked to do is to find that on the face of the statute there is impracticality in respect of this one and only one function of forming an opinion as to certain matters and then giving effect to that through the certificate.

GAGELER J:   Mr Tokley, your time is nearly up, I see.  Do you have something at all to say about the proposed form of the undertaking as to costs?

MR TOKLEY:   No, your Honour.  Your Honours, I think Mr Quall may wish to make some additional points – I am sorry…..Mr Fejo.  No, your Honour, I have covered the points that one could cover in response to your Honour’s questions.

GAGELER J:   Yes, thank you.  Mr McIntyre.

MR McINTYRE:   If your Honours please.  My friend, Mr Tokley, has addressed much of what we needed to address anyway with respect to the intervener’s submissions.  There are a couple of other matters, but I want to make it clear that in the amended ground the additional words “or authorise” - I just want to make abundantly clear that we say that those words should not be there because they were no part of the case before Justice Reeves. 

My friend has taken you to page 22 of the application book.  There is no evidence about other authorisation.  The Full Court has made it abundantly clear that that issue was not before them.  Counsel for both the applicant and the intervener were given the opportunity to raise it before the Full Court.  They both abandoned that point and we say that it is inappropriate to embark on it now.

One of the clearest ways of addressing whether or not there might have been evidence about that is to say, well, just how many times is the first applicant called upon to form one of these opinions?  In other words, it is clear on the submissions, on the matters that are already before the Court that the first applicant’s Council meets at least twice a year.  There is no material that suggests that Council cannot deal with all of the ILUA questions, of opinions, in its jurisdiction in those meetings.  For all we know, it could be that the times that it has to do that are less than the fingers on one hand.

Therefore, that whole question of Carltona and authorisation are effectively a question of evidence that is not before the Court.  If that had been pursued below we could have had an opportunity to interrogate things like, and present evidence about, the content of the National Native Title Tribunal’s register of ILUAs and that would clearly have shown how often those opinions are formed nationally and/or within the jurisdiction of the first applicant.  That did not happen.  So if that issue gets advanced, it is clearly just a question of - it is a hypothetical question and we say this is an inappropriate vehicle for that.

The only two other remarks I wish to make are about the content of the intervener’s submissions.  At application book page 270 at paragraph 2 of the intervener’s reply - and your Honours will note that this comes at the end of significant content of submissions by the intervener about internal governance, director’s duties, whether the decision ought to be made by delegates, or whether there is some error saying it should be the opinion formed by the Council - there are volumes in the submissions about that, but it all comes down to this.  The intervener says – and I am reading from that paragraph 2:

The Full Court’s error is not to recognise that a body corporate is capable, through its governing body, of acting, thinking and forming opinions, but to hold that a representative body corporate is only capable of acting through its governing body - 

when in fact that is not what the court says at all.  So that is not a ground.  That is not an error.  The only other place the intervener points to judicially below is in paragraph 6 and it is in paragraph 6 where reference is again made to this notion of other representative bodies and some apparent problem with some apparent general application that some error is again pointed to.

There are two things about that.  There is no evidence below.  In fact there was no attempt below to examine how broad some sort of potential problem was.  In other words is there any administrative necessity anywhere amongst these other bodies?  Of course the Full Court below made no mention of this.  So, again, that cannot be the grounds for a judicial error below.

What we say about that line of argument in due course, if we have to, is that the function under the Native Title Act that was imposed on the representative bodies by this legislation comes with an express limitation – a prohibition – in the very statute that grants the certification function.  It has one exception to the prohibition, and that is section 203BK. 

That is an exception to the specific prohibition, and we say that what is happening here – what the intervener is trying to do – is to get this Court to adopt an approach that says the specific and limited exception to a specific prohibition for one function ought be given primacy over the function itself.  In other words at this subordinate level of exception to specific prohibition, they are asking this Court to say that there ought be implied a power, an implied power, to do something beyond the function itself.  We say there is no support for that, either by way of evidence below, or in terms of the difficulties – administrative difficulties of this applicant – nor of other representative bodies. 

GAGELER J:   Mr McIntyre, do you have anything to say about the form of the undertaking as to costs?

MR McINTYRE:   No.  It is probably clear that we have separated our work and I think it probably does not need submissions at this place.  That is all I have to offer.

GAGELER J:   Yes, thank you very much.  Mr Glacken, are you running a Carltona - are you trying to run a Carltona argument?

MR GLACKEN:   Can I say we could live without the words “or authorise” but we might end up with an elephant in the room before the Full Court for these reasons.  One is that the Full Court, in our respectful submission, very much set up a man of straw, so to speak, in making the distinction. 

It principally arises at paragraph 138 where their Honours provided an additional reason to dismiss the appeal, that is, having found on the cross‑appeal that it was non‑delegable, their Honours then went on at paragraph 138 to say – and, in any event, even if it were, the problem with this certificate is that it is by the CEO in the name of the NLC rather than by the CEO in his own name as delegate.

It is somewhat of a distraction.  Our complaint is that additional reason overlooked the significance of section 34AB of the Interpretation Act in treating the action of a delegate as the action of the authority.  Might I say of course that Carltona – my recollection is that it was an issuing of a notice of requisition in wartime by the Commissioners of Works, done by the Assistant Secretary of the Department in the name of the Commissioners - I have never apprehended to turn on any evidence at all; it is a legal point of construction.

GAGELER J:   You did not run this point.  In fact, you abandoned this point.

MR GLACKEN:   At the Full Court level, but it was in play before the trial judge and the trial judge said, “Well, that is not going to help you because I find it is delegable so therefore there is no administrative necessity” – from memory about paragraph 29 or 38; I will turn it up in a moment.  Can I put it this way?  It was in play before the trial judge.  It was put out of play in the Full Court, so far as the cross‑appeal is concerned but it ought to have been in play on the appeal, but we are left in a somewhat abstract position because the Full Court decided not to deal with the appeal but added that additional reason of the dichotomy between a delegate and agent, which we say to be a false dichotomy so far as the consequences are concerned as performed by the Acts Interpretation Act.  The trial judge mentioned the point being put at first instance.

GAGELER J:   I have always understood Carltona to be concerned with attribution, something quite different from delegation.

MR GLACKEN:   Yes, and we say that that rationale – perhaps I will not call it the rationale – but the consequence of the distinction is reversed by the Acts Interpretation Act, which says there is no difference.

GAGELER J:   In the case of a delegation ‑ ‑ ‑

MR GLACKEN:   Yes, it becomes ‑ ‑ ‑

GAGELER J:   Well, that is no doubt the consequence of delegation; it is not about the Carltona ‑ ‑ ‑

MR GLACKEN:   That is so.  The trial judge - application book page 23, paragraph 39, mentioned the argument at first instance.  Then at about line 7, or thereabouts, his Honour says this:

That is not the situation in which the NLC found itself in this matter.  First, for the reasons given above, the NLC’s Council did have the power to delegate its certification function under the NTA to its CEO.

So the trial judge disposed on that basis that there was no administrative necessity.

GAGELER J:   Your proposed ground of appeal, whether you get leave to run the Carltona doctrine point or not, does not actually reflect the holding of the Full Court, does it?

MR GLACKEN:   No, the words “or authorise” are the additional words, and as I said we can live with the omission of those words.

GAGELER J:   I think you have to.

MR GLACKEN:   Thank you.

GAGELER J:   On the undertaking of the applicants not to disturb the costs orders below and to bear the first and second respondents’ costs of the appeal in any event, limited to one set of costs, special leave to appeal is granted on the revised ground indicated in the document handed up to the Court today, with the deletion of the words “or authorise”.  On the undertaking of the Northern Territory of Australia to bear its own costs, and to bear jointly with the appellants, the first and second respondents’ costs of the appeal in any event, the Northern Territory of Australia has leave to intervene in the appeal.

AT 10.05 AM THE MATTER WAS CONCLUDED