State of Western Australia v Ward

[2013] FCAFC 54

FEDERAL COURT OF AUSTRALIA

State of Western Australia v Ward [2013] FCAFC 54

Citation:		State of Western Australia v Ward [2013] FCAFC 54
Appeal from:		Ward v State of Western Australia [2013] FCA 281
Parties:		STATE OF WESTERN AUSTRALIA v FRED WARD & ORS ON BEHALF OF THE TRADITIONAL OWNERS OF THE GIBSON DESERT NATURE RESERVE
File number:		WAD 104 of 2013
Judges:		ALLSOP CJ, MARSHALL J AND MANSFIELD J
Date of judgment:		31 May 2013
Catchwords:		NATIVE TITLE – Compensation claim – one basis of claim that native title rights and interests suppressed but not extinguished by vesting of national park under s 33 Lands Act 1933 (WA) – whether that claim should be struck out having regard to Western Australia v Ward – no injustice by allowing claim to stand – leave to appeal revoked
Legislation:		Native Title Act 1993 (Cth), ss 50, 61, 232, 45, 17, 20, 19, 238, 228, 23B Land Act 1933 (WA), ss 29, 33 Federal Court of Australia Act 1976 (Cth), s 31A Racial Discrimination Act 1975 (Cth), s 10 Titles (Validation) and Native Title (Effect of Past Acts)  Act 1995 (WA), s 5
Cases cited:		Western Australia v Ward (2002) 213 CLR 1 considered House v The King (1936) 55 CLR 499 followed Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 followed Spencer v Commonwealth (2010) 241 CLR 118 followed
Date of hearing:	13 May 2013
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	28
Counsel for the Appellant:	G Donaldson SC, Solicitor-General for Western Australia, and T Russell
Solicitor for the Appellant:	State Solicitor’s Office, Western Australia
Counsel for the Respondent:	V Hughston SC
Solicitor for the Respondent:	Central Desert Native Title Services Ltd

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 104 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF WESTERN AUSTRALIA
Appellant

AND:

FRED WARD & ORS ON BEHALF OF THE TRADITIONAL OWNERS OF THE GIBSON DESERT NATURE RESERVE
Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Intervener

JUDGES:	ALLSOP CJ, MARSHALL J AND MANSFIELD J
DATE OF ORDER:	31 MAY 2013
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.Leave to appeal from the interlocutory decision of the Court in matter WAD 86 of 2012 given on 18 April 2013 be revoked.

2.Any submissions on costs to be filed within 14 days.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 104 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

STATE OF WESTERN AUSTRALIA
Appellant

AND:

FRED WARD & ORS ON BEHALF OF THE TRADITIONAL OWNERS OF THE GIBSON DESERT NATURE RESERVE
Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Intervener

JUDGES:	ALLSOP CJ, MARSHALL J AND MANSFIELD J
DATE:	31 MAY 2013
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

THE COURT

1. This is an appeal by leave from an interlocutory order refusing to strike out certain claims of the respondent.  For the reasons given, we do not consider that the appeal has merit and would revoke the leave to appeal.

2. The respondent, as applicant on behalf of the traditional owners of the Gibson Desert Nature Reserve (also described in the material as Reserve 34606) (the Reserve), applied under ss 50(2) and 61(1) of the Native Title Act 1993 (Cth) (the NT Act) for a determination of compensation.  The entitlement to compensation is said to arise from the effect on their native title rights and interests over the Reserve by two immediately sequential acts of the appellant, namely

   (a)the reservation of the Reserve on 22 April 1977 under s 29 of the Land Act 1933 (WA) (the Land Act) (the reservation); and then

   (b)the vesting of the Reserve in the Western Australian Wildlife Authority also on 22 April 1997 under s 33 of the Land Act (the vesting). 

3. The application as amended on 10 December 2012 was supported by a further amended statement of facts, issues and contentions of the applicant (the respondent to this appeal) also dated 10 December 2012 (the SFIC).  The SFIC, inter alia, specified in paragraph 5 the native title rights and interests which the claim group said they enjoyed but for the reservation and the vesting, as well as the facts that would support their claims. 

4. The basis of the claim for compensation was expressed in paragraphs 9.1 and 9.2 of the SFIC as follows: 

   9.1The acts which diminished, impaired or extinguished native title rights and interests were: 

   (a)the reservation of the land as Reserve 34606, for the purpose of the conservation of fauna and flora, under s.29 of the Land Act 1933 (WA) on 22 April 1977; and

   (b)the vesting of Reserve 34606 in the Western Australian Wildlife Authority under s.33 of the Land Act 1933 (WA) on 22 April 1977.

   9.2The members of the Compensation Claim Group are entitled to compensation as follows: 

   (a)the Applicant maintains that both the reservation of the land as Reserve 34606 under s.29 of the Land Act 1933 and the vesting of Reserve 34606 in the Western Australian Wildlife Authority under s.33 of the Land Act 1933, are category D past acts for which the Compensation Claim Group are entitled to compensation under ss.17(2) and 20(1) of the NTA;

   (b)if, on the other hand, the reservation of the land as Reserve 34606 under s.29 of the Land Act 1933 was a category D past act but the vesting of the Reserve under s.33 was always valid, the Compensation Claim Group are entitled to compensation under ss.17(2) and 20(1) of the NTA in respect of the reservation of the land as Reserve 34606 and under s.45 of the NTA in respect of the vesting of the Reserve;

   (c)alternatively, if the reservation of the land as Reserve 34606 under s.29 of the Land Act 1933 was a category D past act and the vesting of the Reserve under s.33 was a previous exclusive possession act, the Compensation Claim Group are entitled to compensation under ss.17(2) and 20(1) of the NTA in respect of the reservation of the land as Reserve 34606 and under s.23J of the NTA in respect of the vesting of the Reserve.

5. Both the appellant and the Commonwealth filed a response to the SFIC (an earlier version).  Subsequently, on 15 April 2013, the Commonwealth filed a document submitting to any order the Court may make in the proceeding. 

6. The appellant on 15 February 2013 applied under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) to strike out various paragraphs of the SFIC, and of the amended application.  In essence, for present purposes, the appellant claimed that paragraphs 9.1 and 9.2(a) and (c) of the SFIC and the corresponding paragraphs of the amended application should be struck out as they were not tenable.  They were said to be inconsistent with the decision of the High Court in Western Australia v Ward (2002) 213 CLR 1 (Ward HC), because they treated the vesting as a category D past act and alternatively as a previous exclusive possession act under the NT Act.

7. On 28 March 2013, that strike-out application was dismissed:  Ward v State of Western Australia [2013] FCA 281. The primary judge gave leave to appeal from that decision on 18 April 2013.

   THE GROUND OF APPEAL

8. As the Solicitor-General for the appellant said, the issues on the appeal are short.  It is accepted that the judgment appealed from involved the exercise of a judicial discretion, so that the appellant must show that the discretion miscarried in the manner described in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ, and that as the appeal concerned a matter of practice and procedure it is also necessary to show that the primary judgment will cause substantial injustice to the appellant: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ.

9. It was argued that the primary judge should have concluded that the respondent had no reasonable prospect of successfully pursuing the claim for compensation as expressed in paragraphs 9.2(a) and (c) of the SFIC, and so could not have exercised the discretion to allow those bases for the claim to stand. 

10. The appellant accepts that the claim based upon paragraph 9.2(b) of the SFIC is available. It is on the basis that the reservation under s 29 of the Land Act was a category D past act (as defined in s 232 of the NT Act), and that the vesting under s 33 of the Land Act was valid but extinguished the claim group’s native title rights and interests (or at least did so to a significant extent) and so under the Racial Discrimination Act 1975 (Cth) (the RD Act) there arose an entitlement to compensation available under s 10 of the RD Act, and by s 45 of the NT Act that entitlement became an entitlement to compensation under ss 17(2) and 20(1) of the NT Act.

    THE DECISION OF THE PRIMARY JUDGE

11. The primary judge recognised at [3] that, in the light of Ward HC, there “exist serious impediments to the maintenance of the compensation application on the impugned grounds”.  The respondent acknowledged that the bases of the claim in paragraphs 9.2(a) and (c) are apparently inconsistent with the plurality judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Ward HC at [257]-[260].  His Honour noted that the respondent nevertheless wished to contend that Ward HC in the relevant respects should be reviewed, and so wanted those grounds preserved. 

12. The primary judge at [58] observed that the contentions in support of paragraph 9.2(a) and (c) would take little time during the hearing, although “there could be a question about the effect this would have on the evidence to be led at trial”.  His Honour then addressed the comments of French CJ and Gummow J in Spencer v Commonwealth (2010) 241 CLR 118 at [24] and [25] about the circumstances in which s 31A(2) of the FCA Act may properly be used to summarily dismiss a claim or part of a claim. In particular he noted that case at [25] where French CJ and Gummow J said:

    Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

    Reference was also made to the observations of Hayne, Crennan, Kiefel and Bell JJ especially at [60] about the proper application of the test expressed in s 31A of the FCA Act.

13. In relation to the respondent’s impugned contentions, the primary judge at [66] said the prospects of success are “narrow” but not “fanciful”. He said that the issues raised are relatively novel because the direct claim of compensation in circumstances such as the present had not yet been raised in proceedings, and he added that the claims sought to be propounded were “potentially highly significant to the future administration” of the NT Act. There is, his Honour also said, an advantage in hearing the evidence relevant to those claims at the trial, rather than later (if ultimately it were found that the claims were correctly made).

14. That is the course of action which the primary judge adopted in the “very particular circumstances” of the claim. His Honour did so after a careful analysis of the relevant provisions of the NT Act, and of the judgments in Ward HC.

    CONSIDERATION

15. It is convenient to note briefly the foundation for the impugned claims.

16. It is common ground that the reservation was a category D past act, as defined in s 232, and that it had some effect on the claimed native title rights and interests in accordance with s 226(2)(e). The effect of a reservation under s 29 of the Land Act was discussed in Ward HC at [222] and [229] as being inconsistent with any continual exercise of power by native title holders to decide how the land could or could not be used. To that extent only it was inconsistent with the RD Act, but by virtue of s 19 of the NT Act and s 5 of the Titles (Validation) and Native Title (Effects of Past Acts) Act 1995 (WA) (the State Validation Act) the non-extinguishment principle in s 238 of the NT Act applied and the affected native title rights would be suspended for so long as the reservation remained.

17. The vesting step in paragraph 9.2(b) presents no real difficulty. The vesting of the reserve under s 33 of the Land Act would, in the appellant’s contention, be valid. The appellant acknowledged that the RD Act would nevertheless provide to native title holders a right to compensation for the extinguishment of their rights, as stated in Ward HC at [253]. Section 45(1) of the NT Act converts the rights to compensation under the RD Act into a right to compensation under the NT Act to be assessed in accordance with s 51 of the NT Act. The plurality judgment in Ward HC at [249] suggests that vesting effected total extinguishment of native title rights and interest, but it is not necessary to explore that question further.

18. By the vesting step in paragraph 9.2(a) of the SFIC the respondent wants also to argue that the vesting was also a “past act” as defined in s 228, because of the date it occurred and because it was otherwise invalid because of native title. The hypothesis is that, after reservation, at least some native title rights and interests survived but were invalidly extinguished by the vesting.

19. In Ward HC the plurality at [253] and [254] said that because the vesting of a reserve under s 33 of the Land Act was not invalid, it is not a “past act”, as the operation of Div 2B of Pt 2 of the NT Act and Pt 2B of the State Validation Act protects it from being invalid because of native title.

20. It is that proposition the respondent wishes to challenge. It is pointed out that issues of compensation were not immediately in the consideration of the High Court (as was said in the plurality judgment at [253]). The argument is that the vesting could not be valid, because s 33 is predicated on the existence of “land reserved” under s 29, and because the reservation itself was not valid, the subsequent vesting could not validly be of “land reserved” and so itself could not be valid. Consequently, the “vesting” also fell within the definition of a “past act” in s 228, as it was invalid “apart from” the operation of the NT Act: see s 228(2)(b), and so the vesting itself qualified as a category D past act. The respondent would also then argue that the vesting would also be validated by s 19 of the NT Act and s 5 of the State Validation Act and be subject to the non-extinguishment principle.

21. As to paragraph 9.2(c), the appellant makes a similar point. This alternative expression of the claim is based first on the reservation being a category D past act, and the vesting being a previous exclusive possession act. The appellant said, correctly, that at present the plurality judgment in Ward HC at [258] would mean that the contention must fail because s 23B(9A) of the NT Act so provides.

22. The appellant then contends that paragraph 9.1 cannot stand in its present form because the only claim available to the respondent is that under paragraph 9.2(b), which involves the extinguishment of native title rights and interests.  There is no basis, it says, on which the claim for diminution or impairment of native title rights and interests can be sustained.  The respondent wishes to maintain its claims in paragraph 9.2(a) and (c) because, if the non-extinguishment principle can apply to the vesting, there remains the prospect of the enjoyment of the native title rights and interests being re-enlivened when and if the vesting itself and/or the revocation ceased to have effect.

23. It is not suggested that the primary judge misunderstood the applicable test to apply in considering the strike out motion of the respondent. 

24. His Honour, in our view, is not shown to have erred in the exercise of his discretion in the circumstances to dismiss that motion. Indeed, the appellant’s contention was really little more than saying that the decision in Ward HC was so clear that the discretion to strike out the impugned paragraphs should have been exercised differently. But, as his Honour said, there were particular circumstances to which he referred, including the application of the NT Act to the entitlement to compensation for the extinguishment or diminution or impairment of native title rights, upon which there is presently no direct authority. There is an argument to support the respondent’s contention, which is fairly described as not fanciful. There is reason for the respondent to pursue the contentions because there is a difference between the extinguishment of native title rights and interests and their preservation but suppression if the non-extinguishment principle applies.

25. There is no real injustice to the appellant if the impugned contentions are allowed to stand.   The appellant says it is entitled to know the case it has to meet.  In reality it does.  It will have to address the additional contentions but that would take little extra time at the hearing.  Moreover, on this appeal, the parties accepted that there would be no evidence additional to that which would be led to support the claim as expressed in paragraph 9.2(b) of the SFIC.  As the primary judge said, in any event, it is desirable for all evidence to be adduced at the one hearing.

26. Whilst it is understandable that the primary judge would be cautious about refusing leave to appeal from his own decision in this relatively unexplored territory under the NT Act, as it is plain that there is no injustice to the appellant by allowing the impugned contentions to be maintained, it was appropriate in the circumstances that leave to appeal should have been refused.

27. We accordingly propose to revoke the leave to appeal granted on 19 April 2013. 

28. If costs are sought, submissions of the parties are to be filed within 14 days. 

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop and the Honourable Justices Marshall and Mansfield.

Associate:

Dated:        31 May 2013