Northern Land Council v Commonwealth of Australia

[1995] FCA 114

IN THE FEDERAL COURT OF AUSTRALIA )
  )
VICTORIA DISTRICT REGISTRY       )       No. VG 464 of 1987
  )
GENERAL DIVISION                 )

B E T W E E N:

NORTHERN LAND COUNCIL

- and -

COMMONWEALTH OF AUSTRALIA & ORS

JUDGE:    Heerey J

DATE:     2 March 1995

PLACE:    Melbourne

EX TEMPORE REASONS FOR JUDGMENT

If a plaintiff cannot obtain funds for litigation, it may be that his case cannot proceed and what could possibly be a good claim fails.  Such a result is understandably a matter of distress, but it may be the circumstances are such that a point in time comes when the plaintiff has to face up to the question whether or not funds are going to be available.  I say that because the alternative is that the litigation meanders on endlessly, hanging over the head of the other party, which is grossly unjust to that other party, and indeed is of no benefit to the plaintiff. 

On 1 December last year I fixed the hearing date for 1 September 1995 and made it as clear as I could that this would be one certain factor on the basis of which all parties would organise their affairs.  It was correctly pointed out by Mr Mukhtar that at the hearing in December when the fixing of a date was strongly opposed by the NLC there was nothing advanced concerning any lack of funding.  It now appears that their complaints of lack of funding go back some years.  That in itself is a factor weighing against vacating the trial date now on the ground of lack of funding. 

It appears that as long ago as October 1993 it was made clear to the NLC by the Minister that the source of funding hitherto used by them for this litigation, that is the 40 per cent funding under s 64 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was no longer to be available to them. That position was reaffirmed in strong terms in a letter from the Minister which is undated but which circumstantially would seem to have been written about October last year, that is to say that before the debate in December about the fixing of the trial date. The earlier procedural applications to which reference has been made, the High Court appeals and the mediation, were all over by that stage.

No steps were taken to seek assistance from ATSIC until January of this year.  In any case the NLCs own material provides no ground for any confidence whatsoever that funding would be available from that source.  It is now some four months after the trial was fixed to commence on 1 September.  It is said that there was no funding for the case and that it should in effect be put off indefinitely while further approaches are made to sources for funds, none of which seem to provide any reasonable prospects. 
The case itself is a massive one, dealing with conversations and other matters of personal recollection which occurred in 1977.  The prejudice to the respondents in having to meet 18 years after those events, a case based on evidence about such events, is I think, self-evident.  There is also an element which is relevant, although I do not put this at the forefront of my considerations, viz the fact that since 1978 there has been a major commercial operation in which no doubt many thousands of people have depended for their livelihoods and made their own commitments in reliance on its continuance.  That is now being sought to be set aside. 

Obviously, I cannot say anything about the merits of the case but by the same token I do not think I should, on the basis of a one-sided assertion of the merits in favour of the applicants, treat this case any differently from any other case in which there has been a 10 year delay since the commencement of the proceeding, which commenced some eight years after the events in question.  Unless it is understood that when the court fixes a trial date that will be adhered to and taken seriously, the confidence which the community are entitled to have in having disputes resolved fairly will be seriously damaged.

So I do not propose to vacate the trial date.  The problems that the NLC are having with the Gagudju Association and the other litigation is, I accept, unfortunate for them, and a major distraction, but I am not prepared to accept that this is something for which the respondents are in any way responsible, or that it is a factor which should prejudice the respondents, who are entitled as any litigants are to a prompt and fair resolution of their disputes.

As to para 6A of the amended defence, while I was initially attracted to the argument of the NLC that it raised factual issues which would require evidence of events many years ago, I think on consideration, and on analysis of the statement of claim in its initial form, Mr Meagher's submission is correct, and the amendments to paras 6 and 6A do no more than provide further particulars of matters which have been in issue from the outset.

It is late now, and counsel may wish to consider the detailed directions that were contained on page 3 of the AGS letter of 1 March 1995.  I think what I will do now is dismiss the motion to vacate the trial date, dismiss the application to strike out para 6 of the amended defence.  I will indicate that I would give directions substantially in accordance with the directions sought in that letter, but I will reserve liberty to apply as to any details that the parties may wish to raise.

I think costs will follow the event.  So there will be an order that the applicant pay the respondents' costs for the motion. 

I certify that this and the preceding (four) pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.

Dated: 2 March 1995

Associate

Appearances

Counsel for the applicant:        Mr J L Sher QC and Mr R Blowes

Solicitor for the applicant:      Phillips Fox

Counsel for the first respondent:  Mr D R Meagher QC

Solicitor for the first respondent: Australian Government
  Solicitor

Counsel for the second respondent: Mr N Mukhtar

Solicitor for the second             Corrs Chambers Westgarth
respondent:

Date of hearing:                  2 March 1995