Northern Land Council v Quall (No 3)

Case [2021] FCAFC 2

FEDERAL COURT OF AUSTRALIA

Northern Land Council v Quall (No 3) [2021] FCAFC 2

Appeal from:  Quall v Northern Land Council [2018] FCA 989
File number: NTD 30 of 2018
Judgment of: GRIFFITHS, MORTIMER AND WHITE JJ
Date of judgment: 18 January 2021
Catchwords:

PRACTICE AND PROCEDURE – application for leave to adduce further evidence – whether the Court should in its discretion under s 27 of the Federal Court of Australia Act 1976 (Cth) admit further evidence in the appeal – leave granted

NATIVE TITLE – whether the certification function conferred on the Northern Land Council by s 203BE(1)(b) of the Native Title Act 1993 (Cth) was duly delegated by that representative body to the CEO under s 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – appeal allowed

Legislation:

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Federal Court of Australia Act 1976 (Cth), s 27

Native Title Act 1993 (Cth), ss 24CG(3)(a), 203BE(1)(b)
Cases cited:

Australian Chemical Refiners Pty Ltd v Bradwell (unreported, New South Wales Court of Criminal Appeal, 28 February 1986)

CDJ v VAJ [1998] HCA 67; 197 CLR 172

Cottrell v Wilcox [2002] FCAFC 53

Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3

Northern Land Council v Quall [2019] FCAFC 77

Northern Land Council v Quall [2020] HCA 33

Re Culleton [2018] HCA 33; 358 ALR 678

Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389

Watson Australian Community Pharmacy Authority [2012] FCAFC 142; 206 FCR 365
Division: General Division
Registry: Northern Territory
National Practice Area: Native Title
Number of paragraphs: 56
Date of last submission: 4 December 2020
Date of hearing: Determined on the papers
Counsel for the Appellants: Mr S Glacken QC with Mr R Kruse
Solicitor for the Appellants: Legal Branch of the Northern Land Council
Counsel for the Respondents: Mr P McIntyre with Mr A Flecknoe-Brown
Solicitor for the Respondents: Robert Welfare & Associates and McQueens Solicitors
Counsel for the Intervener: Ms N Kidson QC with Mr L Peattie
Solicitor for the Intervener: Solicitor for the Northern Territory

ORDERS

NTD 30 of 2018
BETWEEN:

NORTHERN LAND COUNCIL

First Appellant

JOE MORRISON AS CHIEF EXECUTIVE OFFICER OF THE NORTHERN LAND COUNCIL

Second Appellant
AND:

KEVIN LANCE QUALL

First Respondent

ERIC FEJO

Second Respondent

NORTHERN TERRITORY OF AUSTRALIA

Intervener

ORDER MADE BY:

GRIFFITHS, MORTIMER AND WHITE JJ

DATE OF ORDER:

18 JANUARY 2021

THE COURT ORDERS THAT:

1.The appellants have leave under s 27 of the Federal Court of Australia Act 1976 (Cth) to rely on further evidence, being the affidavit dated 26 September 2018 by Tamara Simone Cole, together with its annexures which include a copy of resolutions passed by the Full Council of the Northern Land Council on 18 October 2001.

2.The appeal be allowed. 

3.The declarations dated 29 June 2018 in proceedings NTD 45 of 2017 and NTD 54 of 2017 be set aside and in lieu thereof the following declaration…

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AGLC
Northern Land Council v Quall (No 3) [2021] FCAFC 2
Case
[2021] FCAFC 2
Decision Date

CaseChat Overview and Summary

The case of Northern Land Council v Quall (No 3) involved the Northern Land Council, an appellant, and Quall, a respondent. The matter pertained to the validity of a delegation of powers concerning the certification of an Indigenous Land Use Agreement (ILUA) under the Native Title Act 1993. The dispute arose from the certification function conferred on the Northern Land Council as a representative body and whether this function was duly delegated to the Chief Executive Officer under the Aboriginal Land Rights (Northern Territory) Act 1976.

The court was required to decide whether the Northern Land Council had effectively delegated its certification function to the Chief Executive Officer, and if the court should exercise its discretion under section 27 of the Federal Court of Australia Act 1976 to allow the introduction of further evidence to support the appellants' case. The primary legal issue was whether the 2001 resolution, which purported to delegate certain functions and powers to the Chief Executive Officer, was valid and had been overlooked in the initial proceedings.

The court granted leave for the appellants to adduce further evidence, determining that the 2001 resolution was indeed valid and should have been considered in the original trial. The court found that the failure to rely on the 2001 resolution at trial was not due to any conscious decision by the Northern Land Council. It was accepted that the relevant agents involved in the trial were unaware of the resolution at the time. The court held that there were no third-party or broader public interest reasons that weighed against exercising the discretion in favour of the appellants. Consequently, the appeal was allowed, and the original declarations were set aside, with new declarations being made to reflect the valid delegation of the certification function to the Chief Executive Officer. No further order was made regarding costs.

Orders

Orders of the court

1. The appellants have leave under s 27 of the Federal Court of Australia Act 1976 (Cth) to rely on further evidence, being the affidavit dated 26 September 2018 by Tamara Simone Cole, together with its annexures which include a copy of resolutions passed by the Full Council of the Northern Land Council on 18 October 2001.

2. The appeal be allowed.

3. The declarations dated 29 June 2018 in proceedings NTD 45 of 2017 and NTD 54 of 2017 be set aside and in lieu thereof the following declaration be made:

THE COURT DECLARES THAT:

1. The Northern Land Council has, by a certificate dated 13 March 2017 signed by its chief executive officer, certified for the purposes of s 24CG(3)(a) of the Native Title Act 1993 (Cth) and in performance of its functions as a representative body under s 203BE(1)(b) of that Act, an application for registration of the Indigenous Land Use Agreement dated 21 July 2016, as amended by a deed of variation dated 2 February 2017, known as the Kenbi ILUA.

4. There be no further order as to costs.

.Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It is convenient to address the application for leave to adduce further evidence because, on one view, it is dispositive of the appeal. Application to adduce further evidence(i) The further evidence identified The terms of the 2001 resolution (C81/1671 dated 18 October 2001) were relevantly as follows (without alteration save for the emphasis added at cl 2(ii)):ITEM : Delegation of Powers under Native Titles ActIt is resolved that:1.To avoid legal doubt, the delegations of Full Council currently in force (hereinafter “the current delegations”) under the Native Title Act 1993 are confirmed as being, and having been, in force under the Act in relation to functions and powers for native title representative bodies contained in ss. 203B to 203BK and s.203D .which came into force on 1 July 2000.2.Without limiting the generality of resolution 1, the following functions and powers are delegated to the Executive Council, Chairperson and Chief Executive Officer:(i)facilitation and assistance functions under s.203BB and 203BD;(ii)certification functions in relation to Indigenous Land Use Agreements under s.203BE(l)(b);(iii)dispute resolution functions under s.203BF;(iv)notification functions under s.203BG;(v)agreement making functions under s.203BH;(vi)internal review functions under s.203BI;(vii)other functions under s.203BJ.3.Without limiting the generality of resolution 1, the certification functions in relation to native title applications under s.203BE(l)(a) are delegated to the:(i) Executive Council;(ii) Chairperson;(iii) Chief Executive Officer;(iv) Anthropology Branch Manager (including persons acting position);(v) Principal Legal Officer (including persons acting in this position).…Date of Resolution: 18 October 2001… The evidence in support of the application to adduce further evidence included an affidavit dated 26 September 2018 by Ms Tamara Cole, who is the Legal Practice Manager – Native Title of the NLC. She deposed how she was contacted by a former NLC staff member (Mr Ron Levy) the day after Reeves J published his reasons for judgment. She deposed that Mr Levy told her that the NLC’s NT Act delegation was updated after the NT Act had been amended in 1998, but that the NLC’s delegation manual had not been updated to reflect the changed delegation. Ms Cole caused a search to be made of the NLC’s electronic database which located the 2001 resolution. Ms Cole said that neither she nor any other current NLC lawyer was employed by the NLC when the 2001 resolution was passed and that she was unaware of it before Mr Levy contacted her. She explained that although she had checked the NLC’s delegation manual prior to the trial below, that merely revealed the 1996 delegation and the March 2000 instrument. The delegation manual is a folder which is meant to collect all formal delegations and like instruments and it is the usual working source used by staff in the NLC’s Legal Department. (ii) Section 27 of the FCA Act and relevant legal principles

Decision

Reasons for decision

Adducing the further evidence will also dispose of the appeal because, for reasons given above, the 2001 resolution should be viewed as valid and effective in delegating the certification functions to, inter alia, the CEO. In their supplementary submissions dated 30 November 2020, the respondents acknowledge that the instrument of delegation (i.e. the 2001 resolution) is, in its terms, supported by the power of delegation under s 27 of the ALR Act. There are no third party or broader public interest reasons which weigh against exercising the discretion under s 27 favourably to the appellants. Conclusion For these reasons, the appellants should have leave to rely upon the further evidence. Save for the order below as to costs, the declarations dated 29 June 2018 should be set aside and in lieu thereof a declaration should be made in the terms requested by the appellants in [10(e)] of their Contentions filed on 29 January 2019. The parties were agreed that there should be no further order as to costs. I have had the advantage of reading the reasons of Griffiths and White JJ, which set out the background to the orders the appellants seek the Court make on the remitted appeal. I gratefully adopt their Honours’ description of the background, and of the relevant provisions, and I agree in the orders and declarations they propose. On remitter, the sole issue remaining for this Court is, as the majority in Northern Land Council vQuall[2020] HCA 33 said at [74]whether the certification function conferred on the NLC as a representative body by s 203BE(1)(b) of the NT Act was in fact duly delegated by the NLC to the CEO under s 27(1) of the ALR Act. The only method by which the appellants seek to have the Court answer this question is by relying on the new evidence they seek to adduce though the affidavit of Tamara Cole, the Legal Practice Manager – Native Title of the Northern Land Council at the time the s 27 application was made, in particular the evidence of what I shall call the 2001 NLC Resolution. If the Court grants leave under s 27 of the Federal Court of Australia Act 1976 (Cth) for that evidence to be adduced, its factual determination on the appeal will rest on whether that document, read with the other evidence adduced by Ms Cole (such as the agenda papers and the Minutes for the 2001 NLC Board meeting) proves the NLC “duly delegated” its certification function under s 203BE(1)(b) of the Native Title Act 1993 (Cth) to the CEO of the NLC.Leave under s 27 should be granted Not without some hesitation, I accept the Court’s discretion under s 27 of the Federal Court Act should be exercised in favour of the appellants. In CJD v VAJ [1998] HCA 67; 197 CLR 172 at [103], in explaining the context of the exercise of powers such as that contained in s 27 of the Federal Court Act, the majority said:In contrast, the statutory appeal is directed to whether the orders made below should be set aside and, if so, what orders should be made in their place to determine the outcome of the litigation.

Ratio Decidendi

Legal Principle Established

The respondents strongly opposed the application. In brief, their submissions were as follows.(1)The appellants have provided no explanation for the failure of their legal representatives to have searched the NLC’s electronic database of resolutions prior to trial, other than to refer to “usual practice”. (2)Even if the existence of the 2001 resolution was not known to the NLC’s legal staff, it should be assumed that it was known to the NLC itself. (3)The NLC knew of the relevant inadequacies of its delegation manual well before trial. (4)The further evidence suffered from the following deficiencies:(i)no instrument of delegation was provided, in contrast to the evidence at trial in respect of the 1996 resolution as referred to by Reeves J at [12]; and(ii)it contains an erroneous entry which indicated that action to amend the NLC delegation manual to include reference to a delegation made on 18 October 2001 was completed on 30 October 2001. (5)No evidence was provided by the NLC which was capable of meeting the burden identified by Reeves J at [35], namely to establish that the NLC “had undertaken a considered delegation of its newly acquired certification function”. (6)The appellants could have, but did not, either apply for leave to re-open the trial before Reeves J or proceed to re-certify the Kenbi ILUA relying upon the 2001 resolution. Instead, they seek to adduce further evidence with a view to inviting the Full Court to make a finding of fact on an issue which was never part of the trial and which would deprive the respondents of the opportunity to investigate or challenge the validity or legal effect of the 2001 resolution. (7)Having regard to these and other matters, the respondents disputed that admission of the further evidence would be of benefit to the public interest. Consideration and determination It is most regrettable that a central issue in the trial before Reeves J was conducted on a false basis, namely that the 1996 resolution (and related formal instrument of delegation made in 2000 under that resolution) was the source of the CEO’s power to exercise the certification function in s 203BE(1)(b) of the NT Act. We find, however, that the failure to rely on the 2001 resolution at trial was not due to a conscious and deliberate decision on the part of the NLC. We accept Ms Cole’s evidence that no relevant agent or officer of the NLC involved in the conduct of the trial was aware of the existence of the 2001 resolution at the time of the trial. It may confidently be assumed that if there was such an awareness the 2001 resolution would have been relied upon. The evidence is unclear as to whether anyone else associated with the NLC had actual knowledge of the existence of the 2001 resolution at the time of trial. With the benefit of hindsight some criticism might be levelled at the NLC’s legal representatives for not searching the electronic database of NLC resolutions prior to the trial. But this was not the usual practice and, at the relevant time, there was nothing to indicate that such a search ought to have occurred. We accept Ms Cole’s evidence that the usual practice was for NLC staff to check the NLC delegation manual. The deficiencies of that manual are now apparent, but the evidence is unclear as to the extent to which those deficiencies were known to relevant NLC staff prior to the trial.