Re An Application of Writs of Prohibition and Certiorari Against the Honourable Michael David Andrew Maurice, Aboriginal Land Commissioner; and Re Warumungu Land Claim Ex Parte: the Attorney-General of the Northern Ter [1986] FCA 379 (11 November 1986)

FEDERAL COURT OF AUSTRALIA

Re: IN THE MATTER of an Application for Writs of Prohibition and Certiorari
against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND
COMMISSIONER; AND IN THE MATTER of the WARUMUNGU LAND CLAIM
Ex Parte: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
Re: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
And: THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER
; JACK KIJIKARI JAPPANANGKA, BLUEY FRANK JAKKAMARRA and HILDA JOHNSON
NAPPANANGKA; AND IN THE MATTER of the WARUMUNGU LAND CLAIM
No. G105 and G106 of 1986
Aboriginal Land Claim

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Beaumont J.

CATCHWORDS

Aboriginal Land Claim - Alleged defective description of land claimed under Aboriginal Land Rights (Northern Territory) Act 1976 - whether claim void for uncertainty - "falsa demonstratio non nocet" - "contra proferentem" rule.

HEARING

SYDNEY
11:11:1986

Counsel and Solicitors for Prosecutor: Mr. David Bennett Q.C. with Mr.
David Barrett instructed by Messrs Freehill Hollingdale & Page.

Counsel and Solicitors for the First Respondent: Mr. R. Plibersek instructed by the Australian Government Solicitor.

Counsel and Solicitors for the second Respondents: Mr. R. Howie instructed by Mr. Neil Andrews, Central Land Council, 33 Stuart Highway, Alice Springs.

ORDER

The application be dismissed.

The prosecutor pay the respondent's costs.

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

DECISION

Before the Court are the following applications: an application by the prosecutor, the Attorney-General for the Northern Territory of Australia, for the issue of a Writ of Prohibition directed to Maurice J., as Aboriginal Land Commissioner ("the Commissioner"), to prohibit further proceedings on a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act") known as the Warumungu Land Claim ("the land claim"); an application by the Attorney-General for the issue of a Writ of Certiorari quashing a ruling on jurisdictional issues arising in the land claim given by the Commissioner on 27 March 1986; and an application by the Attorney-General for judicial review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of the decision of the Commissioner given in his ruling on 27 March 1986. For these purposes, separate proceedings - one seeking the issue of prerogative writs, the other under the Judicial Review Act - have been instituted. Since it was common ground that the applications raised the same substantive issues, they were heard together. (The reason for the institution of both proceedings was to avoid possible doubts as to the appropriate jurisdiction in this type of case: see Re Kearney; Ex parte: Attorney-General for the Northern Territory (1984) 55 ALR 545 at p 549.)

2. On 20 November 1978, the Central Land Council, a body incorporated under the Land Rights Act lodged with the then Aboriginal Land Commissioner (Kearney J.) a document dated 9 November 1978 which is entitled -

"NOTIFICATION OF CLAIM UNDER ABORIGINAL LAND RIGHTS
(NORTHERN TERRITORY) ACT, 1976

TITLE OF CLAIM: The Warramunga/Alyawarra claim to an
area between Dalmore Downs and
Tennant Creek."

3. There follows what purports to be a description of the land claimed. This description is said by the Attorney-General to be defective in a number of respects and therefore void. It reads:

"DESCRIPTION OF LAND CLAIMED:

An area of Unalienated Crown Land in the Tennant
Creek area. The claim area is bounded by a line
commencing at the easternmost point of the
northern boundary of Epenarra Pastoral Lease
then due north to the southern boundary of
Dalmore Downs Pastoral Lease, then west and then
north to the junction of the western boundary of
Dalmore Downs Pastoral Lease, with the
southernmost boundary of Rockhampton Downs, then
west, then north and then west along the
boundary of Rockhampton Downs Pastoral Lease,
and the southern boundary of Burnchilly Pastoral
Lease to the eastern boundary of Phillip Creek
Pastoral Lease then following the boundary of
Phillip Creek Pastoral Lease, in a southerly,
then westerly, then southerly, then easterly,
then northerly, then north easterly, then
easterly, then southerly, then westerly, then
northerly and then westerly direction to the
easternmost point of the northernmost boundary
of Tennant Creek Pastoral, then along the
boundary of Tennant Creek Pastoral Lease,
southerly, then westerly, then southerly, then
easterly and then southerly to the westernmost
point on the northernmost boundary of McLaren
Creek Pastoral Lease. Then easterly, then
southerly and then westerly along the boundary
of McLaren Creek Pastoral Lease to that
boundary's intersection with the westernmost
boundary of Kurundi Pastoral Lease. Then
northerly, then easterly, then northerly, then
easterly along the boundary of Kurundi Pastoral
Lease to its junction with the western boundary
of Epenarra Pastoral Lease. Then northerly and
then easterly along the boundary of Epenarra
Pastoral Lease to the point of commencement, but
excluding areas within the area so enclosed
defined as a town under the terms of the
Aboriginal Land Rights (Northern Territory) Act,
1976, Section 3(1).

The land claimed is shown on the attached map."

4. A copy of the claim and map attached is annexed to these reasons (annexure "A"). The map is a photocopy of a portion of what was known as the Pastoral Map of the Northern Territory. It appears that it is published by the Government of the Territory to indicate the location of pastoral leases in the Territory. On the attached map, the area claimed is outlined and hatched in blue biro.

5. The claim is made "jointly on the behalf of the several Warramunga Clans". The claimants include a number of named persons. It appears that Jack Jappanangka and the other second respondents in G106 of 1986 are members of this clan.

6. The relevant functions of the Commissioner are dealt with by s.50(1)(a) of the Land Rights Act:

"50.(1) The functions of the Commissioner are -

(a) on an application being made to the
Commissioner by or on behalf of Aboriginals
claiming to have a traditional land claim
to an area of land, being unalienated Crown
land or alienated Crown land in which all
estates and interests not held by the Crown
are held by, or on behalf of, Aboriginals -

(i) to ascertain whether those
Aboriginals or any other
Aboriginals are the traditional
Aboriginal owners of the land;
and

(ii) to report his findings to the
Minister and to the Administrator
of the Northern Territory, and,
where he finds that there are
Aboriginals who are the
traditional Aboriginal owners of
the land, to make recommendations
to the Minister for the granting
of the land or any part of the
land in accordance with sections
11 and 12;

...."

(Emphasis added)

The operation of s.50(1)(a) in conjunction with ss.11 and 12 of the Land Rights Act was considered by the High Court in Re Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 44 ALR 63, in Re Toohey; Ex parte Stanton (1982) 44 ALR 94 and in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66 ALR 299. Although, for the purpose of deciding those cases, it was necessary to consider the meaning of s.50(1)(a) in a broad context, it is common ground that the matter presently in dispute falls to be resolved by reference to the passage emphasised in s.50(1)(a).

7. Section 50(1)(a) permits the making of an application to the Commissioner by Aboriginals claiming to have a traditional land claim to "an area of land" of a particular character. No question arises here as to that character. The subject of the present dispute is the adequacy of the description of the area claimed in terms of its identification. It is the contention of the Attorney-General that the purported description is so obscure that it is void for uncertainty.

8. The Land Rights Act does not require such an application to be in any particular form. However, by s.51 of the Land Rights Act, the Commissioner "may do all things necessary or convenient to be done for or in connexion with the performance of his functions." (See Anthony Lagoon Station Pty. Limited v. Maurice, Aboriginal Land Commissioner, unreported, Morling J., 9 September 1986). On 8 June 1977, the then Commissioner, Toohey J., issued practice directions with respect to the presentation and hearing of applications under s.50(1)(a). The practice directions required that an application be in writing. In acknowledging the absence of any prescribed form (cf. Downey v. Pryor [1960] HCA 49; (1960) 103 CLR 353 per Kitto J. at p 362), it was provided by the practice directions that the application -

"should ensure as far as possible that the
identity of the claimants and the land claimed
appears clearly. To this end, the application
should set out the following information -

(a) ....

(b) A description of the land claimed
accompanied by a map showing clearly the
location of the land;...."

9. In giving his ruling on jurisdictional issues on 27 March 1986, the Commissioner rejected a submission by the Attorney-General that it was not "possible to discern from either the description or the map accompanying the application the area of land claimed..." In the Commissioner's judgment, the parcel of land which had become known as "Area 1" for the purposes of the land claim was made the subject of an application under s.50(1)(a) on 20 November 1978. (Although the proceedings are brought in the original jurisdiction of the Court, there was no direct evidence in the present applications which identified "Area 1". This is an important consideration and I will need to return to it later.)

10. Before the Commissioner, the Government of the Northern Territory argued that the purported description of so much of the land claimed as was situated in the vicinity of the Tennant Creek Station was inadequate and defective in several respects. The Commissioner accepted that certain mistakes had obviously occurred in the description. He said:

"4. At the foot of the description appear the
words: 'The land claimed is shown on the
attached map'. The map which accompanied the
application is in fact a photocopy of the
relevant part of the Pastoral Map of the
Northern Territory. On this copy, outlined and
hatched in blue biro, is an area which
corresponds precisely with what is depicted as
being, in effect, a large area of vacant Crown
land bounded almost entirely by pastoral lease
boundaries: Dalmore Downs, Rockhampton Downs,
Brunchilly, Phillip Creek, Tennant Creek,
McLaren Creek, Kurundi and Epenarra. The
easternmost boundary is shown as a straight-line
projection of the eastern boundary of Epenarra
to the southern boundary of Dalmore Downs. The
visual effect thus produced is of an irregular
shaped, discrete area with multiple boundaries
most of which run north south or east west.

5. Looking at the relevant lease documents it
can be seen that Tennant Creek Station has an
unusual configuration inasmuch as it consists of
two more or less disconnected parts lying on
opposite sides of the Stuart Highway. The more
northerly of the two lies to the east with the
Highway separating it from Phillip Creek
Station. In fact, this northern segment appears
more naturally to be an easterly extension of
Phillip Creek Station than part of Tennant
Creek. The original mapmaker has adopted the
style of placing the name of each pastoral lease
holding in about the centre of the area
representing the holding using an upper case
print form not used for any other purpose on the
map. In the case of Tennant Creek Station, the
words 'TENNANT CREEK' appear in approximately
the middle of the southern part of the run, but
do not appear in this form in the northern part.
(Both the town and the watercourse are named,
but in different print styles and quite
obviously as features different from the
pastoral holding). It is therefore easy to get
the impression from looking at the Pastoral Map
that Phillip Creek Station extends to the east
of the Highway and includes what in truth turns
out to be the northern part of Tennant Creek
Station."

The Commissioner continued:

"6. It is obvious from a comparison of the
Pastoral Map with the verbal description in the
application: (a) that the author of the latter
document has made a mistake; and (b) the error
was in misdescribing the boundaries of the
north-eastern part of Tennant Creek Station as
though they were boundaries of Phillip Creek
Station. He has chosen the boundaries of the
surrounding pastoral leases as his monuments,
but the description breaks down when it comes to
giving the directions of the boundaries of the
Phillip Creek Pastoral Lease. The reader is
told to follow the boundary of that lease in a
southerly, then westerly, then southerly
direction. Up to this point the description
corresponds with the Pastoral Map. But then the
reader is instructed to follow the boundaries of
Phillip Creek Pastoral Lease in an easterly,
then northerly, then north easterly, then
easterly, then southerly, then westerly, then
northerly and then westerly direction to the
eastern most point of the northernmost boundary
of Tennant Creek Pastoral (sic Lease). There
are no boundaries of Phillip Creek Station that
conform to these directions, and they therefore
make no sense whatever. However, the eight
directions, their sequence and the commencing
and finishing points make complete sense if what
is being described is treated not as the
boundaries of Phillip Creek Pastoral Lease, but
Tennant Creek Station..."

11. In rejecting the suggestion that the claim was void for uncertainty, the Commissioner said:

"7. I think that true intention of the persons
who lodged the original application in 1978 is
clear from simply reading the metes and bounds
description with either the relevant pastoral
leases or the Pastoral Map. The mistake that
had been made, and, therefore, what was intended
by the words of description was obvious to me
when I first read the application. It is not
even necessary to go to the map accompanying the
application. But, do that, and the matter is
put beyond all doubt."

12. In para.5 of his reasons, the Commissioner referred to the lease of Tennant Creek Station, being Northern Territory Portions Nos. 494 and 1075. The precise location of those portions is indicated on the map being annexure "B" to these reasons. This map was annexed to the lease of Tennant Creek Station. There was also tendered in these proceedings, without objection, a Pastoral Map of the Northern Territory dated September 1979. The map attached to the land claim application was an earlier version of this Pastoral Map. It is common ground that the 1979 edition was the same, in all material respects, as the earlier version. The purpose of the tender was to give a better understanding of the map attached to the land claim application. Annexure "C" to these reasons is an extract from the 1979 Pastoral Map.

13. In these proceedings, the Attorney-General attacks the description in the land claim application on two grounds. The first ground of challenge fastens on the words in lines 12 to 16 of the description - "and then westerly direction to the easternmost point of the northernmost boundary of Tennant Creek Pastoral, then along the boundary of Tennant Creek Pastoral Lease, southerly, then westerly, then southerly, then easterly and then southerly to the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease." The Attorney-General argues that this description makes no sense at all; the consequence, he says, is that the whole description is null and void.

14. To understand the reasons advanced in support of the Attorney-General's argument, it is necessary to go back to the beginning of the description. It will be remembered that the description commences at the easternmost point of the northern boundary of the Epenarra Pastoral Lease. This point is marked "l" on annexure "D" (another copy of annexure "A".) One then proceeds north to the southern boundary of the Dalmore Downs Pastoral Lease ("2"); then west and north to the junction of the western boundary of the Dalmore Downs Pastoral Lease with the southernmost boundary of the Rockhampton Downs Pastoral Lease ("3"); then west then north then west along the boundary of the Rockhampton Downs Pastoral Lease and the southern boundary of the Brunchilly Pastoral Lease to the eastern boundary of the Phillip Creek Pastoral Lease ("4"); then following the boundary of the Phillip Creek Pastoral Lease in a southerly, then westerly ("5") then southerly then easterly ("6") then northerly then north easterly then easterly then southerly ("7") then westerly then northerly ("8"). No problem arises to this point. The description proceeds (in line 12):

"and then westerly direction to the easternmost
point of the northernmost boundary of Tennant
Creek Pastoral".

15. The Tennant Creek Pastoral Lease consists of two Portions - 494, lying to the south-west and 1075 lying to the north-east - but only Portion 494 bears the description "Tennant Creek". It would appear that the omission of that description from Portion 1075 explains why the reference in line 12 of the land claim application was made to the "easternmost point of the northernmost boundary of Tennant Creek Pastoral". This was obviously intended to be a reference to the boundary of Portion 494. So much is now accepted by the Attorney-General. His real complaint is that, thereafter, the description of the boundaries is uncertain. He points to annexure "B" and, in particular, to the area indicated as "Enlargement A" and argues that, because of the interposition of the stock route, inter alia, it is impossible to identify the boundary of the area claimed.

16. It will be recalled that, although the Commissioner found that the boundaries of the claims were within "Area 1", no attempt was made by any party to adduce evidence in these proceedings to establish what "Area 1" is, notwithstanding that the absence of such significant evidence was drawn to the parties' attention during the hearing. The absence of any direct evidence to identify "Area 1 is a formidable obstacle to the Attorney-General's claim. Ultimately the relevant inquiry must be one of fact - that of identification of the land claimed. Whilst the construction of formal documents is a matter of law for a court, the question of "parcel or no parcel", i.e. of identity of the land described, is for a jury or a judge of fact (see Watcham v. Attorney-General of the East Africa Protectorate (1919) AC 533 per Lord Atkinson at p 540; cf. F.L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. [1973] UKHL 2; (1974) AC 235 per Lord Wilberforce at p 261; Stonham, Vendor and Purchaser at p 175; Doe dem. Devine v. Wilson (1852-5) 1 Legge 722 at p 741 (PC); Lang, Crown Land in New South Wales at p 28). Unless the findings of the learned Commissioner on this factual question can be criticised as absurd or perverse, there is no scope for intervention by the Court by the issue of a prerogative writ (see, e.g., R. v. Evatt; Ex parte Master Builders' Association (N.S.W.) (No. 2) [1974] HCA 56; (1974) 132 CLR 150; Re Independent Schools' Staff Association (ACT.); Ex parte Hubert (1986) 65 ALR 673 per Gibbs C.J., Mason and Dawson JJ. at pp 675-6; Puhlhofer v. Hillingdon London Borough Council (1986) 1 AC 484 per Lord Brightman at p 518); and in proceedings under the Judicial Review Act, it is well established that a mere factual error cannot support the grant of relief by the Court (see Akpan v. The Minister, (1982) 58 FLR 47 per Sheppard J. at p 50; Koh Ah Soo v. The Minister, Beaumont J., 30 April 1986, unreported, at p 16.)

17. It is not, and could not be, suggested that the learned Commissioner's findings were absurd or perverse in the sense explained in the authorities. Rather, what is put on behalf of the Attorney-General is that, given the theoretical possibility of a number of different constructions of a section of the description, the whole description is void for uncertainty (cf. The Council of the Upper Hunter County District v. Australian Chilling and Freezing Co. Limited (1968) l18 CLR 429 per Barwick C.J. at p 437). Several hypothetical boundaries in the general region of "Enlargement A" were suggested by the Attorney-General to be open on a literal reading of the verbal description. It is not necessary to catalogue these hypotheses for any ambiguity in this part of the description is removed upon reference to the attached map: it is possible, with the assistance of the map, to read the description in lines 14 to 16 as indicating an intention to proceed from point "9" on annexure "D" to points "10" and "11" and then to "12" (the last being the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease). It is true, as the Attorney-General pointed out, that the description makes no reference to the need to proceed west from point "11" before proceeding south to point "12". But the map makes the position sufficiently clear.

18. It follows, in my view, that whether taken as a whole or in sections, the description of the area claimed cannot be regarded as even vague, let alone as so obscure as to be void for uncertainty. Some lack of precise definition in the region of "Enlargement A" may be accepted. But the position is clarified upon recourse to the attached map.

19. In any event, the question, one of fact, was resolved adversely to the Attorney-General by the Commissioner's finding that the land the subject of the land claim was "Area 1". No error in this finding has been demonstrated.

20. In the course of argument, reference was made to the maxim "falsa demonstratio non nocet" (see Broom's Legal Maxims at p.426). In this connection, the Attorney-General relied heavily upon the Canadian case of McPherson v. Ramsay (1869) 1 Prince Edward Island Reports 288. There, land was described as "commencing at a stake on the O'Leary Road about the distance of thirty chains from Moreside's north-east angle of land" when, in fact, the nearest point of the locus was not (at the nearest point) within ninety chains of Moreside's north-east angle. The question was whether the words "from Moreside's north-east angle" should be rejected as a falsa demonstratio. Peters J. said that there was no scope for the application of the maxim since "there must be a good and certain description left, after shutting out the 'falsa demonstratio'.....In this case the point of commencement mentioned in the description is a stake, thirty chains from Moreside's north-east angle of land. Is not that angle then a material part of the description? Reject it and where are you to find a point of commencement for your lines?" (at pp.288-9).

21. This reasoning cannot be applied here. The absence of a sufficient indication of a starting point may well deprive a description of the requisite degree of certainty. This is not the present case. The starting point is clearly indicated and the lack of definition complained of is no more than an absence of detail in a small part of the verbal description. Moreover, Peters J. did not have the benefit of a map to clarify any doubts.

22. As a rule of construction, the maxim must be understood in the light of the observations of Lord Parker in Eastwood v. Ashton (1915) AC 900, (at pp 912-13):

"It was suggested that help might be derived from
the maxim, Falsa demonstratio non nocet. It is
clear, however, that this maxim is useless
unless and until the Court has made up its mind
as to which of two or more conflicting
descriptions ought under the circumstances to be
considered the true description. When this is
done the false description may, of course, be
disregarded, and the maxim merely calls
attention to this obvious result. There are in
some of the authorities expressions from which
it might be inferred that as soon as you have a
description in a conveyance which, taken in
connection with the extrinsic evidence, fairly
identifies a particular parcel or particular
parcels of land, that description should be
adopted and everything subsequently contained in
the indenture which in any way conflicts with it
be rejected as a false demonstration. There
are, however, numerous cases which show that the
order in which the conflicting descriptions
occur is not at all conclusive. If such a
principle as suggested were applied to the
present case the result would be to exclude from
the conveyance the whole of Cartman's holding as
well as the disputed strip. It seems to me that
under these circumstances the Court must in
every case do the best it can to arrive at the
true meaning of the parties upon a fair
consideration of the language used and the facts
properly admissible in evidence."

(see also Naismith v. Smith (1954) VLR 567 per Hudson J. at p 572.)

23. Similar reasoning should be applied here. By looking at the description as a whole and by having regard to the attached map, it is possible to identify the land claimed and it is not appropriate, for this purpose, to resort to rules of construction of legal documents, which, in some cases, for instance, the "contra proferentem" rule, can have an artificial operation (see J. Fenwick & Co. Pty. Ltd. v. Federal Steam Navigation Co. Ltd. (1943) 44 SR (NSW) 1 per Jordan C.J. at pp 4-6).

24. It is hardly necessary to add that a conclusion in the present case that the verbal description, when read with the attached map, is sufficient to identify the land claimed is not necessarily inconsistent with conclusions in other cases relied upon by the Attorney-General where the description of the area in question was so vague and obscure that the claim was held bad for uncertainty (see, e.g., In re Strickland (1924) 3 LVR 144 per Pike J. at p 160; Yeomans v. Peter (1895) 16 LR (NSW) (Eq.) 197; Stephen v. The Councillors and Ratepayers of the Shire of Belfast (1870) 1 VR (L) 59. They establish no matter of principle and are simply cases on their own facts.

25. For these reasons, the first ground of challenge by the Attorney-General should be rejected.

26. The second ground of challenge arises from the following part of the description (at line 16):

"Then easterly, then southerly (point "13') then
westerly along the boundary of McLaren Creek
Pastoral Lease to that boundary's intersection
with the westernmost boundary of Kurundi
Pastoral Lease." (Point "14"). (Emphasis added)

The emphasised reference to "westerly" is an obvious mistake. It should be read as "easterly" - as the map clearly indicates. But such a patent error cannot vitiate the description. In Fitzgerald v. Masters [1956] HCA 53; (1956) 95 CLR 420 Dixon C.J. and Fullagar J., speaking of the ordinary processes of construction, said at pp 426-7:

"Words may generally be supplied, omitted or
corrected, in an instrument, where it is clearly
necessary in order to avoid absurdity or
inconsistency."

It follows that this ground of challenge should also be rejected.

27. In the result, both proceedings must be dismissed with costs.