Teelow v Page

[2001] NNTTA 107

NATIONAL NATIVE TITLE TRIBUNAL

Michael Daniel Teelow/Michael Page/Northern Territory, [2001] NNTTA 107
(10 October 2001)

Application No:        DO 01/22

IN THE MATTER of the Native Title Act 1993 (Cth)

and

IN THE MATTER of an inquiry into an expedited procedure objection application

MICHAEL DANIEL TEELOW     (grantee party)

and

MICHAEL PAGE    (native title party)

and

NORTHERN TERRITORY OF AUSTRALIA    (government party)

DECISION ON APPLICATION TO DISMISS APPLICATION UNDER s148

Tribunal:       Mr John Sosso 

Place:             Brisbane
Date:              10 October 2001

Catchwords: Native title – future act – proposed grant of Exploration Licence – expedited procedure objection application – application for dismissal of application under s 148

Legislation:    Native Title Act 1993 (Cth) – section 148

Cases:

Western Australia v Ward (1996) 70 FCR 265
Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388
Birkett v James [1978] AC 297
Cooper v Hopgood & Ganim [1999] 2 Qd R 113
Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 2 All ER 181
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268

[1] This matter concerns an application by the grantee party in an expedited procedure objection inquiry for the dismissal of an objection application by the native title party pursuant to section 148(b) of the Native Title Act 1993. Section 148 provides as follows:

“The Tribunal may dismiss an application, at any stage of an inquiry relating to the application, if:

(a)           the Tribunal is satisfied that it is not entitled to deal with the application; or

(b)the applicant fails within a reasonable time to proceed with the application or comply with a direction by the Tribunal in relation to the application.”

The grantee party, Mr Michael Teelow, in a letter dated 7 October, 2001 informed the Tribunal that in contravention of the Directions made by Deputy President Sumner, the contentions of the native title party arrived three days late and that material referred to in Affidavits were not supplied.  Mr Teelow formally applied for the dismissal of the expedited procedure objection application .

[2] At the listing hearing convened on 10 October 2001 Mr Teelow indicated that he wished to maintain his application for dismissal pursuant to section 148 of the Act He also formally requested that the determination of the Tribunal be in writing.

[3] Mr Frith, on behalf of the native title party, opposed the application.  He submitted that the Act should be interpreted beneficially for native title holders, and in a way that does not cause any detriment to the native title rights and interests of such persons.  In addition he pointed out that an expedited procedure inquiry was in the nature of an administrative procedure which should not be focused on procedural points. Rather, the inquiry should be focused on substantive issues.

[4] Mr Frith highlighted that initially Deputy President Sumner made directions for the conduct of the expedited procedure inquiry on 11 July 2001. Subsequently those directions were amended by granting the native title party a six day extension for submission of contentions and related documents.  This extension enabled the native title party to be able to lodge contentions by 2 October 2001 (rather than 26 September as was originally determined).  The six day extension was not what the native title party had proposed. Instead the native title party had argued for a two week extension on the basis that this objection was one of a number of the first group of expedited procedure objections to be dealt with the by the Tribunal in the Northern Territory. Extra time, it was said, was required because of the number of objections and the fact that these were the first to be dealt with.  Obviously, as the native title party suggested, more time would be required in developing contentions and the nature and form of documents to be filed and served.  So called “standard” documents would need to be prepared.  Proceedings thereafter would be able to be dealt with much more smoothly.

[5] Mr Frith highlighted that one Affidavit had not yet been filed or served, though it was executed on 9 October.  The reasons for the delay was the inability of the Northern Land Council to locate the particular deponent who, it was said, was in Arnhem Land.

[6] It was said that in the circumstances the grantee party’s substantive interests had not been prejudiced.

[7] Mr Lavery, for the Northern Territory, submitted that the Tribunal did have the power to strike out the objection pursuant to section 148(b). However, he pointed out that when Deputy President Sumner made the amended directions he rejected a contention of the Northern Territory that there be a clause inserted that should the objector fail to comply that the objection would be dismissed. Having not agreed to the insertion of such a clause, Mr Lavery submitted that striking out the objection would be “a bit harsh”.

[8] Mr Teelow did not add anything substantive to further his submission, except highlighting his view that the Tribunal had set timetables for all parties to comply with, and that in this matter, both he (the grantee party) and the Northern Territory had complied with the Tribunal’s directions, but that the native title party had not. In those circumstances the native title party’s objection should be struck out.

[9] It is certainly the case that expedited procedure inquiries are required to be dealt with as speedily as possible – Western Australia v Ward (1996) 70 FCR 265. Unlike courts of law that have developed case management techniques or rely on the inherent power of the court to strike out proceedings for want of prosecution or the like, this Tribunal works within a clearly defined legislative regime which explicitly is aimed at achieving a speedy and certain outcome. The very term “expedited procedure” highlights the nature of the inquiry reposed with the Tribunal. It is an inquiry to achieve an outcome in an informal and speedy manner. The Tribunal should use every endeavour to ensure that expedited procedure inquiries are conducted so that a speedy outcome is achieved. Delays by parties in this context are not just an inconvenience to the Tribunal and to the other parties, but strike at the very core of the nature of these proceedings.

[10] There have been numerous Tribunal determinations on the operation of section 148(b), however it is worth highlighting one matter. The discretion given to the Tribunal in section 148 is drafted in extremely broad terms. It is impossible to predict the type of circumstances which would activate its operation, and it would be sensible only to say that the breadth of drafting indicates that its scope is in no ways narrow or of limited operation.

[11] When dealing with provisions somewhat similar to section 148(b) the Courts have indicated that one situation warranting strike out is where the history of non-compliance by a party is such as to indicate either an inability or unwillingness to cooperate with the Court and the other parties in having the matter heard. Reference can be made to the comments of Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 396.

[12] Until recently the approach the Courts adopted was derived from the principles set out by the House of Lords in Birkett v James [1978] AC 297, to the effect that a strike out should not occur unless there had been intentional and contumelious delay in the prosecution of an action or in the obedience to an order of the court, or that a defendant would suffer prejudice were the action be allowed to continue – see Lord Diplock at 318. However over the past few years the Courts in both Australia and England have held that if there has been a persistent failure to comply with the rules (or orders) then an action could be struck out even if there was no evidence of prejudice to another party or that a fair trial was still possible – see eg. Cooper v Hopgood & Ganim [1999] 2 Qd R 113 and Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 2 All ER 181.

[13] These decisions are not directly applicable to expedited procedure inquiries, but some general guidance can be gleaned from them. The exercise of the discretion vested in the Tribunal by section 148(b) to dismiss an application on the basis that the applicant has failed to comply with a direction of the Tribunal should be guided by the following principles:

(a)the exercise of the discretion should be informed by the object of the expedited procedure provisions of the Act, namely that the parties and the Tribunal are required to proceed expeditiously with a view to avoiding delays, expense and legal technicalities, and that non-compliance of Tribunal directions potentially warrants, as a matter of principle, the imposition of the sanction set out in section 148;

(b)directions are made to achieve these objectives and, accordingly, non-compliance enlivens the power vested in the Tribunal pursuant to section 148;

(c)whether the discretion vested in the Tribunal should be exercised, though, is dependent on a range of factors and circumstances that are not possible of being wholly outlined. However, one important factor, is that that the right to negotiate is a valuable right that should not be lightly dispensed with, and that the Act should be interpreted in a beneficial manner for native title holders. That aside, the discretion in section 148 is unfettered and the exercise or non-exercise of the discretion depends on all the circumstances of each case. Amongst other matters, and by no means limiting them, the Tribunal could consider:

(i)whether the failure to comply was as a result of the actions of the objectors or their representative, or due to some other cause;

(ii)whether there has been some reasonable explanation proffered for non-compliance, or rather that no explanation is given to the Tribunal. While the absence of an explanation may well prove fatal, the giving of an explanation does not of itself prevent the exercise of the discretion to strike out;

(iii)whether the failure of the applicant to comply with Tribunal directions has resulted in prejudice to other parties, and if so, the nature of that prejudice;

(iv)the history of the proceedings;

(v)the previous conduct of the applicant, such as previous failures by the applicant to comply with directions of the Tribunal;

(vi)whether the expedited procedure inquiry itself raises novel issues, or whether the inquiry is part of a series of inquiries involving the same native title party such that failure to meet direction timelines is explicable and not unreasonable;

(vii)the consequences of dismissal, particularly if the failure to comply has occurred by oversight or factors outside the control of the applicant.

[14] Another factor to be taken into account in this matter is the absence of a “springing” or “guillotine” direction. If such a springing direction has been made, then in the absence of good reasons to the contrary, there would be a presumption that the Tribunal would exercise its discretion under section 148. Conversely a springing or guillotine direction does not deprive the Tribunal of its discretion not to dismiss, and if good reasons are advanced the Tribunal may determine not to exercise its discretion – FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268.

[15] In this matter the failure of the Tribunal to make a springing direction, despite the contentions of the Northern Territory, is a factor that I have taken into account.

[16] The failure of the native title party to comply with the directions made by Deputy President Sumner is not denied. The fact of non-compliance of itself necessitates a consideration of section 148, especially as the grantee party made a formal submission to that effect.

[17] The power in section 148 is discretionary. The implications of its exercise are severe. It is a power that should be used sparingly and only in cases where it is manifestly clear that it is appropriate to do so. In this matter the failure to comply has been explained. There has not been a history of non-compliance. The grantee party has not been significantly prejudiced. The government party (the Northern Territory) has not sought dismissal. This is one of a series of inquiries that raise complex and potentially novel issues. The burden placed on both the native title party and the government party in these initial inquiries is significant. It would be sensible and appropriate to give the parties some leeway.

[18] The Tribunal is not satisfied that it should exercise its discretion under section 148. There is no evidence of persistent delays, of prejudice or of conduct warranting the exercise of the statutory strike out discretion.

Determination

[19] The application by the grantee party pursuant to section 148 that the objection of the native title party be dismissed, is not upheld.

John Sosso

Member
10 October 2001