Wiri People # 2 v State of Queensland

[2006] FCAFC 158

FEDERAL COURT OF AUSTRALIA

Wiri People # 2 v State of Queensland [2006] FCAFC 158

WIRI PEOPLE # 2 v STATE OF QUEENSLAND
QUD 270 OF 2006
QUD 271 OF 2006

STONE, ALLSOP AND GREENWOOD JJ
10 NOVEMBER 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 270 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WIRI PEOPLE # 2 Appellant
AND:	STATE OF QUEENSLAND Respondent

JUDGES:	STONE, ALLSOP AND GREENWOOD JJ
DATE OF ORDER:	7 NOVEMBER 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 271 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WIRI PEOPLE # 2 Appellant
AND:	STATE OF QUEENSLAND Respondent

JUDGES:	STONE, ALLSOP AND GREENWOOD JJ
DATE OF ORDER:	7 NOVEMBER 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Order 3 made by the Court on 19 June 2006 be set aside and in lieu thereof:

(a)Order that the Appellants be given leave to file in court today an amended application.

(b)Order that the Appellants file and serve within 21 days an affidavit setting out the basis upon which the amended application filed today has been authorised including, notice given of the authorisation meeting, attendance record and minutes and resolutions.

(c)Order that the Appellants file and serve within 21 days an affidavit by an applicant to the effect that the claim group comprises all of those who, to his or her best knowledge, information and belief are the native title holders.

3.In default of compliance with orders 2(b) or 2(c) above, the Appellants show cause why the application should not be dismissed.

4.There be no order as to costs.

5.The matter be remitted to the docket judge in relation to any need to consider order 3 of these orders and otherwise generally.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 270 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WIRI PEOPLE # 2 Appellant
AND:	STATE OF QUEENSLAND Respondent

JUDGES:	STONE, ALLSOP AND GREENWOOD JJ
DATE:	10 NOVEMBER 2006
PLACE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 271 OF 2006

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	WIRI PEOPLE # 2 Appellant
AND:	STATE OF QUEENSLAND Respondent

JUDGES:	STONE, ALLSOP AND GREENWOOD JJ
DATE:	10 NOVEMBER 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT

1. These are brief reasons that the parties have requested in order that the orders of the Court made on 7 November 2006 (which were ultimately agreed between the parties) are put in context and are clear.

2. On 6 October 2005, at a directions hearing in proceeding numbered QUD 6251 of 1998, a Judge of the Court made the following order, as recorded in the transcript of that day:

   “The order will be that the applicant file and serve an amended application on or before Friday, 14 October, and in default thereof, the application will stand dismissed.”

3. The record of the orders made on 6 October 2005 and entered on 17 October 2005 was as follows:

   “THE COURT ORDERS THAT:

   1.The applicant file and serve an amended application on or before 14 October 2005, in default thereof the application stands dismissed.

   2.The Registrar contact the applicant to co-ordinate continued negotiations in the overlapping claims.

   3.The matter otherwise be adjourned to 31 March 2006 at 10.15 am.”

4. On 14 October 2005, the applicants, through their solicitors, filed two documents in the Queensland District Registry of the Court – a notice of motion and an affidavit.  The notice of motion was given a return date of 2 November 2005.  The orders sought in the notice of motion were as follows:

   “1.That the Applicant be granted leave to amend the Application in terms of the amended application exhibited as ‘MJO 1’ to the affidavit of Michael John Owens sworn 14^th October 2005 and filed herein.

   2.The draft Amended Application which is exhibited to the Affidavit of Michael John Owens as ‘MJO 1’ sworn on 14 October 2005 stand as the amended application and further filing of the Amended Application be dispensed with.

   3.Such further or other order as this Honourable Court deems appropriate.”

5. Notwithstanding the terms of [1] and [2] of the notice of motion, the draft amended application marked ‘MJO1’ was annexed, not exhibited, to the affidavit of Mr Owens.  That is, it was physically annexed to the four page affidavit.  It did not, of course, receive a separate court stamp recognising its filing, being an annexure to the affidavit.

6. On 19 June 2006, the Judge who made the self-executing order of 6 October 2005, made the following order:

   “THE COURT ORDERS THAT:

   1.The self executing order of 6 October 2005 has taken effect and Wiri People # 2 stands dismissed.

   2.Leave to appeal the self executing order of 6 October 2005 is refused.

   3.An extension of time for compliance with the order made on 6 October 2005 is refused.

   4.Leave to appeal from order 3 of these orders be granted.”

7. His Honour gave reasons for those orders.

8. Before the Court were two proceedings in the appellate jurisdiction.  The first, proceeding QUD 270 of 2006, was a notice of motion in which leave was sought to appeal from the order of the primary judge made on 6 October 2005. 

9. The second, proceeding QUD 271 of 2006, was a notice of appeal from orders made on 19 June 2006.  The notice of appeal raised: (a) a complaint about the primary judge’s conclusions that the appellants had failed to comply with order 1 made on 6 October 2005 and that the proceedings stood dismissed thereby; (b) complaints about the primary judge not dealing with the notice of motion filed on 14 October 2005 before making order 1 on 19 June 2006 and about the primary judge’s failure to discharge or vary the self-executing order; and (c) a complaint that the primary judge should, in all the circumstances, have extended the time for satisfying the order.

10. The issues raised in both proceedings involved some procedural complexity, in particular: (a) whether the application for leave to appeal in QUD 270 of 2006 was incompetent, an oral application for leave to appeal from the order of the primary judge of 6 October 2005 having already been made to, and refused by, the primary judge on 19 June 2006; (b) as part of (a), whether the appellate jurisdiction of the Court had been properly invoked by the oral application made by counsel for the appellants on 19 June 2006; (c) whether order 1 made on 19 June 2006 was final or interlocutory; and (d) depending on the answer to (c) whether, notwithstanding the rejection by the primary judge of leave to appeal from the orders of 6 October 2005, the question as to the legitimacy of that order could still be ventilated because order 1 of 19 June 2006 had been made and was the subject of appeal.

11. During the course of argument, it became apparent that the State of Queensland did not contest that parts of the primary judge’s reasons for refusing to extend time for compliance with the order made on 6 October 2005 contained some factual inaccuracy.  In particular, in [4] of his reasons the primary judge said:

    “There is no requirement in the Act for grid co-ordinates.  The matters which were of primary concern at the time that the order was made concerned constitution of the claim group and authorisation of the claim.  Those difficulties would have been resolved by compliance with the order, notwithstanding that it may have been necessary further to amend the application to insert appropriate grid references if the applicants wished to proceed to registration in the Tribunal.”

12. It was accepted by the State that the matters in the second and third sentences were considerations that had come to the fore after October 2005, and were not of primary concern as at 6 October 2005.

13. Later in his reasons, the primary judge placed some emphasis on the inadequacy of the proposed amended application (which was the document that had been annexed to the affidavit filed in 14 October 2005) to be able to withstand criticisms in the two respects referred to in [4] – the constitution of the claim group (and in particular the questions of the claim group being a sub-group of a wider claim group) and (in part related to that last issue) whether the claim was authorised in accordance with the Act.

14. In discussion with counsel, there was debate as to whether the primary judge had, in effect, approached the exercise of discretion on a partly incorrect footing, by reason of the misdescription of the facts in [4]. The Court came to the view that it was minded to extend the time for compliance with the order of 14 October 2005. After informing the parties of this, the parties largely agreed the orders that were made. (The only disagreement was that the State sought a self-executing order in order 3 of the orders in QUD 271 of 2006. We refused to make such an order. The appellants themselves propounded the form of order 3 as made.)

15. The parties asked that brief reasons be given for our coming to the view which we expressed to the parties about our attitude to the extension of time.

16. It seems to us that the clear purpose of the judge on 14 October 2005 was to ensure that, notwithstanding so-called mapping delays, the matter move ahead.  To this end, his Honour ordered that an amended application be filed.  Leave to file was either implicit in this order or was impliedly waived.  The State accepted that the order, to be complied with, did not require that the amended application that was to be filed solve the overlap questions.  That concession was rightly made.  Any such requirement would have invested the order with a complexity of assessment antithetical to the simplicity and lack of ambiguity required by such orders.

17. Compliance was attempted.  The primary judge was, however, correct in his conclusion that compliance with the order did not occur.  The filing of an affidavit with a draft amended application annexed was not the filing of an amended application.  If, however, it had been filed, the order would have been complied with, even though, as an amended application, it might not have been such as to be able to proceed successfully to determination:  cf [9] of his Honour’s reasons.

18. The giving of weight to the matters referred to in [4] of the primary judge’s reasons (see [11]-[12] above) was an error of fact of sufficient importance to permit us to re-exercise the discretion for ourselves:  House v The King (1936) 55 CLR 499 at 504 - 505.

19. In our view, given the form of the order, the nearly successful attempt at compliance, the fact that the appellants had in Court before us an updated signed amended application, and the undesirability of seeing rights of the appellants dismissed, or at the least potentially prejudicially affected, by reason of the apparent misunderstanding of those causing the documents to be filed in October 2005, time should be extended to allow an amended application to be filed.

20. That said, we made orders 2(b), 2(c) and 3 in QUD 271 of 2006 because we were concerned to see that the appellants squarely face, as soon as possible, any difficulty arising from the constitution of the claim group and authorisation.  If the State is of the view that the matters dealt with by the appellants in pursuance of orders 2(b) or 2(c) do not fulfil the order or, even if they do, give rise to a serious question as to the legitimacy of the claim, it should raise such matters with the docket judge.  Our view is, however, that such matters should be agitated on notice in the conventional way and should not pass unventilated and effectively be decided by a refusal to extend time for compliance with the order of 6 October 2005.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone, Allsop and Greenwood.

Associate:
Dated:        10 November 2006

Counsel for the Appellant:	Mr N Williams SC & Mr M Wright
Solicitor for the Appellant:	D & G Lawyers
Counsel for the Respondent:	Mr G Hiley QC & Mr A Luchich
Solicitor for the Respondent:	C W Lohe Crown Solicitor
Date of Hearing:	7 November 2006
Date of Judgment:	10 November 2006