Rose & Ors v NSW Native Title Services & Anor

[2006] HCATrans 664

[2006] HCATrans 664

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M93 of 2005

B e t w e e n -

REGINA ROSE

First Applicant

LINDSAY MOBOURNE

Second Applicant

DOT MULLETT

Third Applicant

FRANK HOOD

Fourth Applicant

PAULINE MULLETT

Fifth Applicant

and

NEW SOUTH WALES NATIVE TITLE SERVICES LTD

First Respondent

NYARMIN ABORIGINAL CORPORATION

Second Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 DECEMBER 2006, AT 9.48 AM

(Continued from 29/9/06)

Copyright in the High Court of Australia

__________________

KIRBY J:   This matter was heard with an oral hearing in Melbourne on 29 September 2006 by the Court as presently constituted.  The applicants seek special leave to appeal against orders of the Court of Appeal of the Supreme Court of Victoria, constituted by Justices Chernov, Vincent and Eames, made on 22 June 2005 and 30 June 2005.  By those orders the Court of Appeal dismissed the applicant’s application for leave to appeal against the orders of a single judge of the Supreme Court of Victoria, Justice Ashley, made on 5 November 2004 and ordered the applicants to pay costs. 

The order of Justice Ashley against which the applicant’s have sought leave to appeal in the Court of Appeal had dismissed an application by those who are applicants in this Court to set aside certain orders made on 3 February 2004.  The orders of 3 February 2004 directed the Senior Master of the Supreme Court of Victoria to deal with moneys paid into court by Duke Energy Australia Limited (“Duke Energy”) by first paying any tax liabilities or charges due and payable in respect to the moneys in court, then by paying $604,000 to a named bank account, the Nyarmin Scholarship Trust bank account and, finally, by paying the balance together with accrued interest to another bank account, the Nyarmin Discretionary Trust bank account.

Duke Energy had obtained orders permitting it to pay moneys into court to effect the discharge of Duke Energy’s obligation under certain native title consent agreements made in connection with the construction of a national gas pipeline between Longford, Victoria, and Horsley, New South Wales.  Those orders were sought because there had been prolonged difficulty in establishing a trust that was to be constituted under or pursuant to these agreements. 

The critical complaint underpinning the application to set aside the orders of 3 February 2004, which required the disposition of the moneys in court in the way described above, was that those orders were made without proper notice to interested persons.  The applicants alleged that there were other procedural and substantive irregularities that required, or at least warranted, the setting aside of the orders of 3 February 2004.  All these contentions were allegedly neglected by the primary judge.  The Court of Appeal examined the applicants’ complaints in considerable detail and concluded that the decision of Justice Ashley was not attended with relevant doubt. 

When the application for special leave to appeal to this Court was called on for hearing on 29 September 2006, the applicants sought an adjournment.  The Court ordered that the applicants file any further submissions in support of the application within 28 days, the respondents to have 14 days to file submissions in response, and the applicants to have seven days to file any reply. 

The applicants have not filed any further written submissions in support of the application for special leave; instead, they have filed a summons and supporting affidavit indicating that they wish to obtain some further documentary evidence.  The determination of the special leave application should not be delayed any further. 

If special leave to appeal were to be granted, the evidence which the applicants seek to obtain would not be admissible for consideration in disposing of the appeal to this Court:  see Mickelberg v The Queen (1989) 167 CLR 259 and Eastman v The Queen (2000) 203 CLR 1. Nor would that evidence, if received, be separately relevant to whether special leave should be granted. The clear and repeated authority of the Court requires that this Court confine itself in appeals to the record of the evidence in the courts below. That evidence cannot be supplemented in the High Court as the applicants seek to do.

On this basis, the applicants have demonstrated no arguable error on the part of the Court of Appeal of the Supreme Court of Victoria and the application for special leave must therefore be dismissed with costs.  The order of the Court is in those terms.

AT 9.53 AM THE MATTER WAS CONCLUDED