Shane John Mortimer v Land Development Agency

[2013] ACTCA 26

SHANE JOHN MORTIMER v LAND DEVELOPMENT AGENCY
[2013] ACTCA 26 (18 June 2013)

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – application for leave to appeal from interlocutory order – principles relating to whether leave should be granted – no error by primary judge demonstrated – no substantial injustice demonstrated – leave to appeal refused.

The Constitution
Lands Acquisition Act 1906 (Cth)
Native Title Act 1993 (Cth)
Seat of Government (Administration) Act 1910 (Cth), Part IV

Supreme Court Act 1933 (ACT), s 37E(4)

Northern Territory Land Act 1872 (SA)
Sale of Waste Lands Act 1842 (UK)

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Bienstein v Bienstein (2003) 195 ALR 225
Fejo v Northern Territory (1998) 195 CLR 96
Mabo v Queensland (No. 2) (1992) 175 CLR 1
Shane John Mortimer v Land Development Agency [2012] ACTSC 158

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 55 - 2012
No. ACTCA 16 - 2013
No. SC 104 of 2012

Judge:          Penfold J
Court of Appeal of the Australian Capital Territory
Date:           18 June 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 55 - 2012
  )          No. ACTCA 16 – 2013
AUSTRALIAN CAPITAL TERRITORY           )          No. SC 104 of 2012
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SHANE JOHN MORTIMER

Applicant

AND:LAND DEVELOPMENT AGENCY

Respondent

ORDER

Judge:  Penfold J
Date:  31 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The applicant’s application for leave to appeal from Burns J’s decision of 19 October 2012 is refused.

2. The applicant is to pay the respondent’s costs.

IN THE SUPREME COURT OF THE     )          No. ACTCA 55 - 2012
  )          No. ACTCA 16 – 2013
AUSTRALIAN CAPITAL TERRITORY           )          No. SC 104 of 2012
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SHANE JOHN MORTIMER

Applicant

AND:LAND DEVELOPMENT AGENCY

Respondent

REASONS FOR JUDGMENT

Judge:  Penfold J
Date:  18 June 2013
Place:  Canberra

Introduction

1. Shane John Mortimer sought an injunction to prevent the Land Development Agency (LDA) selling land in the new Canberra suburb of Lawson. On 19 October 2012, Burns J refused his application for an injunction (Shane John Mortimer v Land Development Agency [2012] ACTSC 158), and Mr Mortimer filed a notice of appeal on 1 November 2012.

1. In general terms, Mr Mortimer’s reasons for seeking an injunction were that he claims to have common law native title to the land concerned, and wishes to force the LDA, or perhaps the ACT government, to acknowledge his title. He also identified various conservation issues arising out of the LDA’s development plans which, as a custodian of that land, he feels some responsibility to address.

Application for leave to appeal

Preliminary matters

1. Burns J’s refusal to grant an injunction was an interlocutory decision, because it did not finally determine the rights of the parties (Bienstein v Bienstein (2003) 195 ALR 225 at [25]). Mr Mortimer could at any stage, at least with an enhanced set of arguments, make another application for an injunction to similar effect to the one Burns J refused.

1. Accordingly, Mr Mortimer required leave to appeal from Burns J’s decision (Supreme Court Act 1933 (ACT), s 37E(4)).

1. The LDA by application in proceedings sought to have Mr Mortimer’s appeal struck out as incompetent, pointing out the requirement for leave to appeal, and that Mr Mortimer was in any case out of time (because, under r 5312 of the Court Procedures Rules 2006 (ACT), his application for leave to appeal was required to be filed not later than seven days after the date the interlocutory order was given). For some reason, the LDA’s application in proceedings was given a separate Court of Appeal file number.

1. On 17 April 2013 the LDA’s application was overtaken when I gave Mr Mortimer leave to seek, out of time, leave to appeal.  On 31 May 2013, I heard the application for leave to appeal, refused to grant that leave, and ordered that Mr Mortimer pay the LDA’s costs. These are my reasons for making the orders of 31 May 2013.

Principles relating to grant of leave to appeal interlocutory order

1. The test for a grant of leave to appeal an interlocutory order was set out in Bienstein v Bienstein at [29]:

The principles that govern the grant of leave to appeal are well established. An applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave. The applicant must also show that substantial injustice will result from a refusal of leave to appeal. (citations omitted)

The application before Burns J

Originating Application

1. On 23 April 2012 Mr Mortimer filed an Originating Application dated 18 April 2012 seeking an interlocutory injunction:

   to stop land sales at Lawson by the LDA or any other developer until Common Law Native Title determination and settlement with me has been finalised.

2. Mr Mortimer in a supporting affidavit identified himself as a traditional owner of “the proposed sub-division by the LDA at Lawson ACT”, and said that his common law native title to the land had not been considered in relation to the proposed subdivision.

1. No process seeking substantive relief had been lodged by Mr Mortimer when the matter came before Burns J, and nor has any such process been instituted in the year or so since.  Furthermore, Mr Mortimer made it clear before me that he had no intention of bringing any substantive proceedings, either under the Native Title Act 1993 (Cth) or directly to establish his common law native title. Rather, his intention was that the granting of an injunction staying the sub-division and sale of land in Lawson would force the LDA to do what he described as “due diligence on native title” in Lawson in the hope of eventually having the injunction lifted and thereby allowing the LDA to resume its development of the land concerned.

Test for granting interlocutory injunction

1. Burns J at [14] set out the test his Honour applied in determining whether the interlocutory injunction should be granted, referring to what the High Court said in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 (ABC v O’Neill) at [65]:

The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) 118 CLR 618]. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

1. Burns J described Mr Mortimer’s argument before him:

7.          The applicant also submits that his common law native title property rights over the proposed subdivision of the land in the suburb of Lawson in the Australian Capital Territory (Lawson) have not been addressed according to law, particularly the Native Title Act 1993 (Cth) and the Commonwealth of Australia Constitution Act (the Constitution).  The applicant claims that the onus is on the Crown, and by this one assumes the applicant refers to the Commonwealth, to prove valid extinguishment of common law native title.  In the current matter, the applicant claims that the Crown is not able to prove valid extinguishment of the applicant’s common law native title over the land in the suburb of Lawson in the Australian Capital Territory, and accordingly any subdivision would be unlawful.

1. Before Burns J, the respondent LDA made submissions that were adopted by his Honour about the extinguishment of any common law native title that might otherwise be held by Mr Mortimer, as follows:

10.       … the respondent argues that native title over the land at Lawson was extinguished in 1833 and 1836 by sale of the relevant land by the Crown to a private land owner; a Mr George Palmer.  According to the New South Wales Register of Deeds, Mr Palmer was given a fee simple title, which was then compulsorily acquired by the Commonwealth in 1915.

11.       The respondent notes that the case of Mabo v Queensland (No.2) (1992) 175 CLR 1 supports their argument regarding the extinguishment of common law native title. Specifically in the joint judgment of Deane and Gaudron JJ at [23]:

The third limitation is related to both the first and the second.  It is that common law native title, being merely a personal right unsupported by any prior actual or presumed Crown grant of any estate or interest in the land, was susceptible of being extinguished by an unqualified grant by the Crown of an estate in fee or of some lesser estate which was inconsistent with the rights under the common law native title.

12.       And again at [60]:

The personal rights conferred by common law native title do not constitute an estate or interest in the land itself.  They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession.

Was Burns J’s decision attended with doubt?

Effect of 1833 and 1836 land grants

1. Mr Mortimer argued before me that despite the 1833 and 1836 sales of the relevant land, the LDA has not proved valid extinguishment of his common law native title over the land in Lawson.  His argument can be summarised as follows:

(a)The sales in 1833 and 1836 involved conditional grants.

(b)There is no evidence that the conditions were ever met.

(c)Therefore there is no proof that the sales were unconditional or, in the High Court’s terms, unqualified, and therefore no basis for accepting that they operated to extinguish common law native title.

1. Records of the two grants were in evidence before Burns J.  Mr Mortimer, who had seen the grants on a previous occasion but did not have them in front of him at the hearing before me, said that there was nothing on the face of the grants that indicated that they were conditional, but made the following assertions:

All grants were conditional.  And they were at the whim of the governor ... They were conditional on certain things being done or not done on the land, whether it had been clearing or whether it had been living on the land.  I think one standard condition was that they had to be resident on the land for 10 years from memory. ... It’s history, ... things I have read in the past.

1. Mr Mortimer claimed that “the governor’s order of the day” was what made the grants conditional, but conceded that he had not produced, and could not currently produce, any such order.

1. I have also looked at the grants. In fact they do specify that they are “subject to the Reservations and Conditions hereinafter mentioned”, but the only reservations and conditions mentioned are as follows:

SAVING AND RESERVING unto HIS MAJESTY His Heirs and Successors, all such parts of the said Land as may hereafter be set out for a Way or Ways, by any Person lawfully authorised in that respect, together with all Lands within One Hundred Feet of High Water Mark, on the Sea Coast, and on every Creek, Harbour, or Inlet, and all Mines of Gold, of Silver, and of Coals; AND ALSO RESERVING unto HIS MAJESTY, His Heirs and Successors, the Right of taking and removing all Stone and Gravel, all Indigenous Timber, and all other materials, the produce of the said Land, which may be required at any Time for the construction and repair of Ways and Bridges, for Naval Purposes, and for Public Works;

1. The grants then specify that the land granted is:

TO BE HELD, with the Appurtenances reserving as aforesaid, to the said George Thomas Palmer his Heirs and Assigns, for ever, yielding and paying therefore Yearly, to HIS MAJESTY, His Heirs and Successors, or as He or any of them shall appoint, the Quit-Rent of one Peppercorn, if demanded.

1. It is not clear to me that the provision for payment of a peppercorn rent, if demanded, in fact made these grants “conditional” in any real sense, but in the absence of any evidence that the peppercorn rent was ever demanded, the absence of evidence that it was paid is of no help to Mr Mortimer.

1. Mr Mortimer also claimed that the conditional nature of the relevant land grants is somehow established by the subsequent enactment of the Sale of Waste Lands Act 1842 (UK).  However, he was unable to explain how that Act had that significance, his argument apparently amounting to the rhetorical question “Otherwise, why would they have even created the Act?” On a brief examination of that Act I was unable to identify anything that suggested or implied that earlier land grants in “the Australian Colonies” were conditional.

1. I note also that in Fejo v Northern Territory (1998) 195 CLR 96 (Fejo), the plurality said at [11]:

Words of limitation in the form “to A his heirs and assigns for ever” have long been recognised as conveying an estate in fee simple. (citations omitted)

1. Having regard to what the High Court said in Mabo v Queensland (No. 2) (1992) 175 CLR 1 as quoted by Burns J (at [13] above), the evidence of the land grants in 1833 and 1836 appears to establish the extinguishment of common law native title. In the absence of any basis for accepting Mr Mortimer’s claim that the grants were in fact conditional, it cannot be said that the absence of evidence of conditions being met raises any doubts at all about the efficacy of those land grants in extinguishing the common law native title.

1. I can see no error by Burns J in dealing with the 1833 and 1836 land grants.

Effect of Fejo

1. At [17] of his Honour’s judgment, Burns J referred to Fejo at [43], which sets out the effect of a grant of fee simple on native title:

... Native title is extinguished by a grant in fee simple. And it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title. An estate in fee simple is, “for almost all practical purposes, the equivalent of full ownership of the land” and confers “the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination.”. It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title. (citations omitted)

1. His Honour concluded at [18]:       

It is clear that a grant of fee simple has the effect of extinguishing native title.  Accordingly, the sale of the land at Lawson by the grant of fee simple to a private land owner in 1833 and 1836 effectively extinguishes any subsequent claim of native title over the land. 

1. Mr Mortimer argued that Burns J was in error in treating Fejo as applicable to his application. He argued that the decision related to land in the Northern Territory and had no application in the ACT.  At first Mr Mortimer said that this was because the ACT and the Northern Territory were dealt with in different sections of the Constitution, but then he referred to Part IV of the Seat of Government (Administration) Act 1910 (Cth). Mr Mortimer seemed to be suggesting that it was the difference in the way that the two Territories had been created that meant that Fejo was inapplicable in relation to ACT land, but was not able to explain the relevant difference or how it affected the Fejo decision. 

1. My understanding of the Fejo decision is that the real issues in that case were, relevantly:

(a)whether a grant of land made in 1882 under the Northern Territory Land Act 1872 (SA) was effective to extinguish native title; and

(b)whether the acquisition of the land by the Commonwealth in 1927 under the Lands Acquisition Act 1906 (Cth) had revived whatever native title had existed before the 1882 land grant.

1. The High Court made it clear, in the remarks of the plurality quoted by Burns J and set out at [24] above, as well as in many other parts of the judgment, that “native title is extinguished by a grant of an estate in fee simple” (Fejo at [44] and elsewhere). Furthermore, in dealing with the question whether the acquisition of the land by the Commonwealth had revived native title, the Court at [57] was emphatic that:

The argument that native title may revive fails because the rights are extinguished by the grant of freehold title; they are not merely suspended.

1. Mr Mortimer did not argue that there was anything in the Seat of Government (Administration) Act (or indeed anywhere else) applicable to ACT land that purported to revive, or re-create, native title that had previously been extinguished by a grant of freehold title.  In the absence of such a claim, the particular legislation by which the Commonwealth acquired the land concerned after native title had been irrevocably extinguished does not seem to matter.

1. I can see no error by Burns J in his approach to Fejo.

Obligation to do “due diligence” in relation to native title

1. Mr Mortimer claimed that the LDA had not complied with its obligation to do “due diligence” on native title, because there was no reference to native title in any of the documentation relating to any LDA land development.  Mr Mortimer said that an obligation to do “due diligence” on native title was “the law of this country”, but was unable to point to any legislative or common law source for that obligation.

1. Nothing in Mr Mortimer’s assertions about “due diligence” in relation to native title suggested any error on Burns J’s part.

Would refusal of leave result in substantial injustice?

1. Mr Mortimer suggested that in the absence of an injunction preventing development in Lawson, there would be undesirable environmental consequences, including in particular the extinction, as a result of “the bulldozers going in there”, of a plant he referred to as the Ginninderra Peppercress.  He did concede, however, that the bulldozers would not affect any native title that he might have or be able to establish. 

1. There was no clear basis on which I could find that a substantial injustice would be done by refusing Mr Mortimer leave to appeal, although if Mr Mortimer had established any error in Burns J’s decision, I would have given him more of an opportunity to explain the potential injustice he had outlined.

Significance of interlocutory injunction

1. As already mentioned, Burns J directed himself as to the tests for granting an interlocutory injunction in the terms set out by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 and quoted in ABC v O’Neill. The first test (at 622 in Beecham Group Ltd v Bristol Laboratories Pty Ltd):

is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ...

1. In ABC v O’Neill, Gummow and Hayne JJ followed the material quoted by Burns J by saying (still at [65]):

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. (citations omitted)

1. Burns J noted that no process seeking substantive relief had been lodged by Mr Mortimer, and concluded at [18] that Mr Mortimer had not made out a prima facie case.  It seems to me that there may have been a separate basis for Burns J to refuse an injunction, arising directly from Mr Mortimer’s failure to initiate any kind of substantive action and apparent failure even to foreshadow any such action.  It is implicit in the remarks of Gummow and Hayne JJ quoted above that the purpose of an interlocutory injunction is “the preservation of the status quo pending the trial”.  If there is to be no trial, there would seem to be no role for an interlocutory injunction. 

1. Even if Mr Mortimer’s position about seeking substantive relief was not so clear before Burns J, I am satisfied that another reason for refusing Mr Mortimer leave to appeal in this case is his firm and repeated indications before me that he has no intention of instituting any kind of legal claim for the recognition of his native title, and that therefore there will be no trial or other proceeding in which he might obtain relief the utility of which needs to be protected by the grant of an interlocutory injunction.

Conclusions

1. I could find no error in Burns J’s approach to Mr Mortimer’s application for an interlocutory injunction.  Nor did Mr Mortimer establish that substantial injustice would be caused by refusing him leave to appeal.  For those reasons, I refused him leave to appeal.

1. In those circumstances, and despite Mr Mortimer’s argument that “the ACT Government are paid to represent themselves by the taxpayers of the ACT” and that “as an impecunious person acting ... in the community interest ... I don’t believe I should be compelled to pay costs that are already met and budgeted for”, I also ordered that Mr Mortimer pay the LDA’s costs.

   I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

   Associate:          Sameena Ahmad
   Date:                18 June 2013

Counsel for the applicant:	The applicant appeared in person
Counsel for the respondent:	Ms K Katavic
Solicitor for the respondent:	ACT Government Solicitor
Date of hearing:	31 May 2013
Date of orders:	31 May 2013
Date of reasons:	18 June 2013