Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v New South Wales Minister for Lands [2011] FCA 114 (17 February 2011)

Last Updated: 18 February 2011

FEDERAL COURT OF AUSTRALIA

Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v New South Wales Minister for Lands [2011] FCA 114

Citation:		Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v New South Wales Minister for Lands [2011] FCA 114
Parties:		SUSAN ANDERSON AND DOUGLAS ANDERSON ON BEHALF OF THE NUMBAHJING CLAN WITHIN THE BUNDJALUNG NATION v NEW SOUTH WALES MINISTER FOR LANDS IN HIS CAPACITY AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 and NTSCORP LTD
File number(s):		NSD 1844 of 2008
Judge:		JAGOT J
Date of judgment:		17 February 2011
Catchwords:		NATIVE TITLE – leave to amend native title determination application – whether amendment “obviously futile” – whether utility of amendments to be determined by reference only to likelihood of proposed amended claim passing registration test
Legislation:		Native Title Act 1993 (Cth) Federal Court Rules O 13 r 2
Cases cited:		Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 Christine George on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518 Parramatta City Council v Pestell (1972) 128 CLR 305; [1972] HCA 59
Date of hearing:	10 February 2011
Date of last submissions:	14 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	24
Counsel for the Applicant:	Mr T McAvoy
Counsel for the First Respondent:	Mr H El-Hage
Solicitor for the First Respondent:	Crown Solicitor of New South Wales
Counsel for the Second Respondent:	Ms S Phillips
Solicitor for the Second Respondent:	Ms J McCaughan of NTSCORP Ltd

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1844 of 2008

BETWEEN:	SUSAN ANDERSON AND DOUGLAS ANDERSON ON BEHALF OF THE NUMBAHJING CLAN WITHIN THE BUNDJALUNG NATION Applicant
AND:	NEW SOUTH WALES MINISTER FOR LANDS IN HIS CAPACITY AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 First Respondent NTSCORP LTD Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	17 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT:

1. Grants the applicants leave to amend the native title determination application in the form annexed to the affidavit of Alan Oshlack affirmed 13 July 2010.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1844 of 2008

BETWEEN:	SUSAN ANDERSON AND DOUGLAS ANDERSON ON BEHALF OF THE NUMBAHJING CLAN WITHIN THE BUNDJALUNG NATION Applicant
AND:	NEW SOUTH WALES MINISTER FOR LANDS IN HIS CAPACITY AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 First Respondent NTSCORP LTD Second Respondent

JUDGE:	JAGOT J
DATE:	17 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These reasons concern a notice of motion for leave to amend a native title determination application.
2. The motion is brought under O 13 r 2(1) of the Federal Court Rules, which provides that:

...the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

3. As stated by Stone J in Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 (Medich v Bentley-Smythe) at [8]:

[t]he general principle is that leave to amend should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for. These considerations require the Court to take account of the nature of the proposed amendment, whether it is made in good faith, the stage in the proceedings at which leave is sought, the nature of the prejudice that may be caused and the means by which such prejudice might be redressed. The question of delay is relevant to these considerations however it is not the purpose of the Court to punish a party for delay in seeking an amendment.

4. These general principles are to be applied in the present case within the context of the provisions of the Native Title Act 1993 (Cth) (the Act). The relevant provisions of the Act include the following:
   • ss 63 and 64 provide that a copy of an application or amended application made to the Federal Court under s 61 is to be given to the Native Title Registrar (the Registrar).
   • s 190A(1) provides that, if given a copy under ss 63 or 64, the Registrar must consider the claim made in the application.
   • s 190A(6) provides that the Registrar must accept the claim for registration on the Register of Native Title Claims if the claim satisfies the conditions in ss 190B and 190C.
   • s 190B specifies the conditions about which the Registrar must be satisfied in respect of the merits of the claim.
   • s 190C specifies the conditions about which the Registrar must be satisfied in respect of the procedural aspects of the claim.
   • s 190E enables an applicant to request that the National Native Title Tribunal reconsider a claim where registration on the Register of Native Title Claims has been refused.
   • s 190F(1)-(4) enables an applicant to seek a review by the Federal Court of a decision of the Registrar not to accept a claim for registration on the Register of Native Title Claims.
   • s 190F(5)-(6) enables the Federal Court to dismiss an application in which a claim is made if all avenues for reconsideration and review of a decision of the Registrar not to accept the claim for registration on the Register of Native Title Claims have been exhausted and (pursuant to subsection (6)):

(a) the Court is satisfied that the application in issue has not been amended since consideration by the Registrar, and is not likely to be amended in a way that would lead to a different outcome once considered by the Registrar; and

(b) in the opinion of the Court, there is no other reason why the application in issue should not be dismissed.

• s 253 defines “registered native title claimant” as a person or persons whose name or names appear in an entry on the Register of Native Title Claims. Status as a registered native title claimant enlivens other rights and obligations specified by the Act (including, for example, the “right to negotiate” provisions in Div 3 of Pt 2 of the Act).

5. The first respondent, the NSW Minister for Lands (the Minister), contends that the motion seeking leave to amend the native title determination application should be refused because the proposed amendments are not likely to lead to registration of the application by the Registrar. This contention involves the following steps: – (i) the proposed amendments do not cure the deficiencies in the application which caused the Registrar to refuse to register the claim in its original form, (ii) thus, there is no real possibility of the Registrar being satisfied of the required matters so as to enable the claim to be accepted for registration, it being accepted by the Minister that “likely” in s 190F(6)(a) means simply that there is “more than a mere possibility” (i.e. that there is a real possibility) of acceptance for registration, and not that registration is “more probable than not” – see Christine George on behalf of the Gurambilbarra People v State of Queensland [2008] FCA 1518 (Gurambilbarra People) at [51]-[53], (iii) the proposed amendments are thereby futile, (iv) it would be unjust to the Minister and contrary to the public interest for futile amendments to be permitted, and therefore (v) on applying the general principle set out in Medich v Bentley-Smythe, leave to amend the application should be denied. The second respondent, NTSCORP Ltd, supports the Minister’s contentions.
6. The applicants contend that the Minister’s approach asks the wrong or, at the least, an incomplete question. This contention involves the following steps: – (i) the dismissal of an application is not an automatic consequence of the Registrar refusing registration of a claim, (ii) if the Registrar refuses to register a claim the Court may dismiss an application in the circumstances specified in ss 190F(5) and (6), but that is a procedural step which is separate from the refusal of registration and must be enlivened either by a party making an application or by the Court of its own motion, (iii) even under ss 190F(5) and (6), the likelihood of future amendment which would enable registration of the claim is not an exhaustive consideration, as s 190F(6)(b) makes the Court’s power of dismissal conditional on its forming an opinion that “there is no other reason why the application in issue should not be dismissed”, (iv) it follows that the utility of the proposed amendments (or, more specifically, the question of whether they are “obviously futile”) is not to be determined by asking, or merely by asking, whether there is a real possibility of the Registrar being satisfied of the required matters, and (v) rather, utility is to be considered in the whole context of the application before the Court for the determination of the claim.
7. The statutory scheme supports the applicants’ approach. Registration is not a condition precedent to the making of a determination of native title by this Court. In Gurambilbarra People, Logan J described the statutory scheme and how it has been affected by ss 190F(5) and (6) of the Act at [50] as follows:

Part 7 was inserted into the Native Title Act by the [Native Title Amendment Act 1998 (Cth)]. In Donnelly for The Wahlabul People v Registrar National Native Title Tribunal [2000] FCA 1330 at [6], Hely J remarked of the claim registration regime introduced by Pt 7 that:

6 The registration test is not a screening mechanism for access to the Federal Court. A claim which is not registered may proceed to determination in the Court. But when a claim is on the Register the applicants are afforded significant procedural rights, including the right to be consulted upon, or to comment, on specific classes of future acts, and the right to negotiate over the grant of mining tenements or compulsory acquisition of the land. Given those statutory benefits, the purpose of the registration test is to ensure that only those claims with merit are registered.

Strictly, even after the amendments made by the [Native Title Amendment (Technical Amendments) Act 2007 (Cth)], it remains true that the registration test found in Pt 7 is “not a screening mechanism for access to the Federal Court” (my emphasis). That is so if for no other reason than that satisfaction of the registration test is not a condition precedent to the ability to file in the Court an application for determination of a native title claim. However, the presence now of s 190F(6) in the Native Title Act and the particular occasion for its engagement provided by s 190F(5) does indicate that satisfaction of the registration test has ramifications for whether an application should be allowed to remain on the Court’s list. Further, given that the Act confers the choice of a full right of review by the Court of the registration refusal decision and vests in the Court a discretion as to whether the application should be dismissed, that the registration decision is initially made by an administrative official is not indicative of an impermissible interference by the Executive with the exercise of the judicial power of the Commonwealth. It is s 190F(6) which provides the “screening mechanism”.

8. One potential ambiguity in the operation of this “screening mechanism” is whether the conditional phrase “in a way that would lead to a different outcome once considered by the Registrar” qualifies the phrase “has not been amended since consideration by the Registrar” – a question of construction which affects the manner in which s 190F(6) applies to an application which has been amended since consideration by the Registrar. The parties did not make submissions on this issue. Nevertheless, it is apparent that if the condition does not apply to an application which has been amended (which I construe to mean amended as a document in the proceeding before the Court, and not merely amended by the applicant), the legislative scheme does not authorise the dismissal of the proceeding under s 190F(6) where the Registrar has not yet determined whether the claim as amended must or must not be registered.
9. Resolution of this issue of construction is not necessary to the determination of the application for leave to amend. In the present matter it was common ground (at least in the oral submissions) that the likelihood of the proposed amendments leading the Registrar to register the claim was relevant (at least to some degree) to the question of the utility of the proposed amendments. In supplementary written submissions, however, the applicants characterised that likelihood as “irrelevant” to the application for leave to amend. If, by this, the applicants meant that the likelihood was an irrelevant (in the sense of “impermissible”) consideration, I do not accept the submission. The likelihood or otherwise of registration is a part of the factual context informing the merits of the application for leave to amend. Accordingly, that likelihood (as the Minister submitted) cannot be an irrelevant consideration. This conclusion, however, does not undermine the essence of the applicants’ submission that the Minister’s exclusive focus on the likelihood of registration is misconceived.
10. In summary, in circumstances where: – (i) lack of registration does not prevent the Court from making a determination of native title, (ii) the application of the “screening mechanism” contained in ss 190F(5) and (6) of the Act is not limited to determining the likelihood of the amended application being accepted for registration, and (iii) the applicants have expressly submitted that the registration of the claim is not their only purpose in seeking the amendments, the question of the utility of the proposed amendments requires consideration of the application before the Court as a whole. On this basis, the following general factors are material.
11. First, this is not a case where the applicants have proven unable or unwilling to amend the application. Amendments to the application are proposed, and have been identified by the filing of the notice of motion for leave, accompanied by the application in its proposed amended form (albeit, unfortunately, without the proposed amendments being marked up).
12. Second, there is no suggestion that the amendments are other than an attempt in good faith by the applicants to make the claim they wish to pursue in this proceeding and to enable registration of that claim or, should registration fail, to otherwise facilitate their application for a native title determination.
13. Third, the proposed amendments are supported by additional affidavits which were not available to the Native Title Registrar at the time of the registration decision on the original application, which was made on 25 May 2009. Under s 190A(3)(a) of the Act, the Registrar is to consider this additional information when determining whether the claim must be registered.
14. Fourth, the proposed amendments can be inferred to represent the best attempt the applicants are likely to be able to make to advance the application. This inference is supported by the fact that the present application, lodged in 2008, is the third application the applicants have made in respect of the claim area. A claim made in 2001 was dismissed by consent on 25 May 2004. A claim made in 2007 was discontinued by consent on 31 October 2008. The present application was filed on 26 November 2008. In February 2009, after a preliminary assessment of the claim against the requirements for registration by a delegate of the Registrar, the applicants foreshadowed amendments to the application, but these were not permitted by the Court at that time. On 25 May 2009, a delegate of the Registrar decided that the claim did not satisfy the conditions of s 190B of the Act and therefore refused to accept it for registration. The applicants initiated two processes for review of this decision (judicial review and review under s 190F(1) of the Act). Both review proceedings were discontinued by consent on 25 March 2010. The applicants filed the present notice of motion seeking leave to amend the application on 14 July 2010. The Minister has not suggested that the Court’s earlier refusal to permit amendments to the application is relevant other than as part of the general background to the present application for leave to amend (noting that the nature and scope of the amendments then sought was not part of the evidence in the present application).
15. Fifth, the reasons for decision of the Registrar (issued on 25 May 2009 and amended on 3 June 2009) in refusing to register the claim in its original form are available. Those reasons inform the assessment of whether there is more than a mere possibility of the proposed amendments leading to registration of the claim. In considering the ways in which and the extent to which they do so, three issues require further comment:

(1) While the applicants did not concede the validity of the Registrar’s decision to refuse registration of the claim in its original form, nothing in the circumstances of this case indicates that it would be appropriate to depart from the orthodox position that administrative actions are generally assumed to be valid unless and until declared otherwise by a court of competent jurisdiction. Hence, the earlier decision of the Registrar should be assumed to be valid and to have been given based on the reasons of the delegate of the Registrar as expressed.

(2) While consistency in administrative decision-making is widely recognised as desirable and in the public interest, each administrative application must be determined on its own facts and in the circumstances prevailing at the time the decision is made. Hence, the earlier decision of the Registrar cannot predetermine any decision on the application if amended and supported by the additional material as proposed.

(3) The merits conditions in s 190B of the Act require the Registrar to reach a state of satisfaction about certain matters in respect of which reasonable minds may differ. As Menzies J said in Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 323, there is “a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible – it is right”. The duty of the Registrar, in common with all administrative decision-makers, is to make a decision that appears on the material to be “sound” and “right” and not merely “justifiable” or “defensible”. Nevertheless, there would be a wide spectrum of findings potentially open to the Registrar with respect to the application if amended and supported by the additional material as proposed. Hence, and for this reason also, the earlier decision of the Registrar cannot predetermine any decision on the application if so amended and supported.

16. These considerations, to some extent, also ameliorate the potential for embarrassment which Logan J identified in Gurambilbarra People at [51] as inherent in the Court making a predictive assessment “of the outcome of fresh consideration of the amended application by an administrative official”.
17. Sixth, although reasonable minds might differ as to the satisfaction of the merits conditions in s 190B of the Act, the function of the Registrar is not discretionary. If the Registrar is satisfied as to the prescribed matters, the claim must be registered (s 190A(6)(b)). If he or she is not satisfied, the claim must not be registered (s 190A(6B)).
18. Seventh, the procedures relating to notification and the associated “administrative burden” thereby imposed on the Registrar, with their consequential impact on the rights of others by reason of notification, are not enlivened unless and until the claim is registered (see Gurambilbarra People at [13]-[14]).
19. Eighth, if the claim as amended is not registered, the process provided for by s 190F(6) of the Native Title Act remains available.
20. To reiterate, the proposed amendments exist and are not merely contemplated. They are put forward in good faith by the applicants to advance their case and to obtain registration. The legislation vests in the Registrar the function of determining whether to register the claim. While the legislation also contemplates the Court adopting a predictive role about the future exercise of that function (s 190F(6)), it nevertheless remains that of the Registrar.
21. In addition, it is apparent that the practical effect of refusing leave to make the proposed amendments would be to deny the applicants the opportunity of both obtaining registration of the claim as amended and, regardless of whether the claim is ultimately accepted for registration, of framing that claim as they wish in the case they seek to advance before the Court. The effect of granting leave to make the proposed amendments would be threefold. It would (practically at least) preclude the dismissal of the proceeding under s 190F(6) until the outcome of the Registrar’s decision on the amended application is known. Until that time, it would also mean that the parties would continue to be involved in this proceeding, with the associated time and costs. It would involve the use of the resources of the parties, the Court and the Registrar to enable the Registrar’s decision on the amended application to be made.
22. While some of these considerations point to conflicting outcomes, their weight overall suggests that it is appropriate to be cautious about the contention in this case that the proposed amendments would be futile. For one thing, it cannot be said that they would be “obviously futile” (Medich v Bentley-Smythe at [8]). On the Minister’s submissions, a conclusion of futility is drawn only in relation to the likelihood of the Registrar accepting the claim as proposed to be amended for registration. For the reasons given above, the question of futility is not to be determined exclusively by reference to the prospect of the claim as proposed to be amended being registered. Moreover, on the Minister’s case, futility is only said to be apparent on close examination of all the proposed amendments by comparison with the delegate’s reasons for refusing to register the claim in its original form. Given the three issues identified in [15] above associated with the use of the delegate’s reasons for the original decision, there is a real question as to whether such a process of examination is necessary or appropriate. From the Minister’s perspective, the best that might be said is that the proposed amendments do not address each and every issue of concern that caused the Registrar to refuse registration of the unamended claim. That, however, leaves open the question of the weight that each concern had in the mind of the delegate, and of the interaction between those concerns.
23. In these circumstances, it is not obvious that the proposed amendments raise no more than a mere possibility of the Registrar deciding that the claim as proposed to be amended must be registered. If the proposed amendments are not obviously futile, then the unfair prejudice to the applicants which will be occasioned if the amendments are not allowed far outweighs the potential prejudice to the Minister and the public interest in the effective use of resources which might result from allowing them. These conclusions indicate that the proper exercise of discretion in the present case is to grant the applicants leave to amend the native tile determination application as proposed. The functions of the Registrar will be enlivened on receipt of the amended claim. If the Registrar is satisfied that the claim must be registered, the applicants will not have been deprived of this important opportunity. If the Registrar is not so satisfied, the Minister or the Court of its own motion may require the applicants to show cause why the application should not be dismissed under s 190F(6) of the Act.
24. For these reasons, the applicants should be granted leave to amend the native title determination application as proposed.
    

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated: 17 February 2011