FEDERAL COURT OF AUSTRALIA

Johnson v Registrar, Federal Court of Australia [2015] FCAFC 66

THE COURT ORDERS THAT:

The appeal be dismissed.

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

REASONS FOR JUDGMENT

THE COURT

1    This is an appeal from a judgment of a Judge of this Court, dismissing an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision of a Registrar of this Court. The Registrar had refused to accept for filing an originating application of the appellant, Mr Johnson. In this proceeding, and at first instance, Mr Johnson was self-represented, although both the primary Judge and this Court granted leave for Mr Paterson to appear in effect as a McKenzie friend on Mr Johnson’s behalf. The Court was also assisted at the hearing by Ms Robb as amicus curiae.

Background facts

2    The background facts are explained in the primary judgment. In summary, Mr Johnson is an elder of the Wulgurukaba people. His Honour accepted that Mr Johnson has a deep and abiding sense of connection with Magnetic Island, an island located approximately 9 kilometres from the coast of north Queensland. In this proceeding Mr Johnson sought to file an originating application under s 199C of the Native Title Act 1993 (Cth) (“Native Title Act”), challenging the registration of a particular indigenous land use agreement (ILUA) in the Register of Indigenous Land Use Agreements. We understand that the ILUA related to land on Magnetic Island. In the originating application he sought to file, Mr Johnson challenged the ILUA on the basis that:

1.    The Originating Application (Lodgement Id:145056) to Deregister the Indigenous Land Use Agreement and Affidavit were not accepted for filing on 3 July 2014

2.    The Indigenous Land Use Agreement was NOT Traditionally Authorised and the Applicants were under duress and not legally represented at the relevant time

3    In the judgment below the primary Judge set out the history of this and related matters in this Court. In particular, his Honour noted:

    At an earlier unspecified time, the Wulgurukaba people had filed two applications for determination of native title in respect of Magnetic Island. Mr Johnson was one of the persons who constituted the applicant in those applications. In or about 2004 the Wulgurukaba people also entered negotiations as to the terms of an ILUA with the State of Queensland in respect of Magnetic Island.

    In 2013 Mr Johnson filed an application seeking an order pursuant to s 199C directing the Native Title Registrar to remove the details of the ILUA from the register, on the basis that he and the Wulgurukaba people had been subjected to duress and had, for that reason only, entered the ILUA. The State of Queensland sought an order for summary dismissal of that application, which order was granted: Johnson v Native Title Registrar (2014) 218 FCR 415. An application for an extension of time to appeal against that decision was dismissed: Johnson v Native Title Registrar [2014] FCA 577.

4    It is not in dispute that the application before the primary Judge in this matter relates to the same ILUA as was considered by Rangiah J in Johnson v Native Title Registrar (2014) 218 FCR 415.

5    The primary Judge noted that Mr Johnson relied on s 199C(2) and (3) which provide:

Federal Court order to remove details

(2)    The Federal Court may, if it is satisfied on application by a party to the agreement, or by a representative Aboriginal/Torres Strait Islander body for the area covered by the agreement, that the ground in subsection (3) has been made out, order the Registrar to remove the details of the agreement from the Register.

Ground for order

(3)    The ground is that a party would not have entered into the agreement but for fraud, undue influence or duress by any person (whether or not a party to the agreement).

6    At [10] of the primary judgment the trial Judge observed:

Annexed to the affidavit was an extract with a minutes [sic] of a meeting of the Wulgurukaba people in respect of the Indigenous Land Use Agreement’s approval. Those minutes record, amongst other things, Mr Johnson’s statement that he was “not happy with that”. That appears to be the vote in respect of the approval of the agreement.

7    Subsequently his Honour continued:

15.    It was put on Mr Johnson’s behalf that undue influence was not expressly raised in the proceeding before Rangiah J. Even so, it could have been. It will be apparent from the passage from D’Orta-Ekenaike quoted that the difficulty Mr Johnson faces is one of finality in relation to an exercise of judicial power. Everything which is in his current affidavits could have been placed before the Court on the earlier occasion. Everything he seeks to agitate by the application which he wishes to file could have been agitated on the earlier occasion. Even taking into account the further affidavit, material the case is really no higher than it was before, in any event. There is, even on the current material, no reasonable prospect of success in respect of any application on the basis of duress or undue influence.

16.    But the burden is higher than that for Mr Johnson, having regard to the passage quoted from D’Orta-Ekenaike. Truly, the case is one which has been dealt with to finality, at least in a practical sense, by the order of dismissal which was made by Rangiah J. And that order of dismissal has been the subject of an unsuccessful application for leave to appeal.

17.    It would be subversive in the circumstances of the principle of finality referred to by the High Court for me to overturn the registrar’s decision. That is so, even though I have looked at the matter, as I consider I am obliged to do, afresh. There has been a quelling of the controversy by the judicial branch of government. That is not a quelling which meets Mr Johnson’s satisfaction. That is as may be. For the reasons given by the High Court in D’Orta-Ekenaike, there are wider societal interests at play. There has been, earlier, a full opportunity for the determination of the controversy which Mr Johnson seeks again to agitate.

18.    It may perhaps be that Mr Johnson would have been more comfortable with legal representation. Equally, though, it is the duty of responsible legal advisers in respect of a case which has no reasonable prospect of success to give such advice to a client. So it may be that, faced with legal representation and such advice, the earlier proceeding would not have been prosecuted at all.

19.    There is something of that same sentiment behind the occasion for the entry into the Indigenous Land Use Agreement. The reasons for that are detailed in Rangiah J’s judgment but in short form they would appear to be these. The native title applications in respect of Magnetic Island had about them a difficulty highlighted by a draft connection report in establishing the requisite connection to satisfy an important criterion for a determination of native title. Inferentially, there would appear to have been consequential legal advice that the best outcome for the native title claim group was the entry into an Indigenous Land Use Agreement. Mr Johnson has had occasion to question the wisdom of that and he has had different views on that subject at different times, as Rangiah J’s reasons for judgment highlight. For all that, that agreement also, in its own way, quelled a controversy.

20.    It was open to Mr Johnson to challenge the registration of the agreement. He sought to do that but sought to do it in a way which did not, in the view of the judicial branch of government, enjoy reasonable prospects of success. Society has a singular interest in the final determination of disputes by the judicial branch of government and, further, in a refusal to entertain a reagitation of any such determination.

21.    For these reasons, the application for the review of the registrar’s decision will be dismissed.

8    We note that in his originating application which the Registrar would not permit to be filed, the appellant advanced as his second ground of review that the ILUA was, in effect, entered into by the applicants as a result of duress. This was simply to repeat what had been advanced before Rangiah J in Johnson v Native Title Registrar. The appellant’s affidavit in support deposed to this assertion of duress. Neither his application nor his affidavit in support raised any issue of undue influence. This basis for seeking to have the ILUA removed from the Register was, it seems, raised for the first time in oral submissions made to the primary Judge by Mr Paterson. The primary Judge adverts to this in his reasons at [15]. Nonetheless, his Honour considered this issue in the passages which we set out above.

9    We also note that in his application for judicial review of the Registrar’s decision there were two grounds:

(1)    That procedures that were required by law to be observed in connection with the making of the decision were not observed.

(2)    That the decision was not authorized by the enactment in pursuance of which it was purported to be made.

10    However, these grounds were not pressed before the primary Judge. Rather, Mr Paterson, on behalf of the appellant, relied primarily on his argument that the appellant ought be permitted to raise undue influence as a ground for removal under s 199C(2).

Appeal to the Full Court

11    In his notice of appeal Mr Johnson sought to appeal the primary judgment on the following grounds:

1.    Taking an irrelevant consideration into account in the exercise of a power. His Honor (sic) expressed the view that respondents would appeal if he decided otherwise

2.    There was no evidence or other material to justify the making of the decision. The decision was based on the existence of a fact that did not exist. His Honor (sic) expressed the view that World War 2 (sic) had altered Native Title on Magnetic Island

12    Further, in this Court Mr Johnson sought to re-agitate his claim before the primary Judge that both he and the Wulgurukaba people had entered the ILUA because they were subject to undue influence.

13    In our view the appeal should be dismissed. We have formed this view for the following reasons.

14    At the hearing Mr Paterson for Mr Johnson informed the Court that Mr Johnson did not press ground 1. In terms of the notice of appeal only ground 2 was before the Court.

15    Moreover, Mr Paterson conceded that the issue raised in ground 2 – and in particular any views of the primary Judge concerning the existence of native title on Magnetic Island in light of the decision of this Court in Congoo on behalf of the Bar-Barrum People #4 v State of Queensland (2014) 218 FCR 358 and the High Court in State of Queensland v Congoo [2015] HCA 17 – formed no part of the decision of the Registrar in refusing to accept Mr Johnson’s application for filing. Accordingly, to this extent, ground 2 has not been established.

16    Further in respect of ground 2, we do not accept Mr Paterson’s submission that it is evident from the transcript of proceedings below that his Honour had based his decision on matters relating to the existence or otherwise of native title. While Mr Paterson was unable to take us to the relevant parts of the transcript, we note the following exchange between his Honour and Mr Paterson at the hearing:

HIS HONOUR: Well, what happened here, truly, was it reached a stage where someone with legal training read the writing on the wall. And that wasn’t writing that Mr Johnson, by the sound of things, wanted to read, but it was read to him. And he didn’t like it. And he still doesn’t like it. And he will go to his grave – and may that be a long time way – not liking it. But that’s life.

MR ADDISON: Well, I hope your Honour is correct about that too. Your Honour, as you say, there is maybe not much to be said here. The connection report may have helped. One of the issues was a quarantine station; people seemed to believe that a quarantine station in the 1800s extinguished native title on Magnetic Island.

HIS HONOUR: No. Well, as I said earlier, it looks as if it wasn’t one of those cases about what types of grants of rights to use land after sovereignty did or didn’t extinguish native title. It looks to have been a case where what was looming as fatal was an absence of continuity of connection with the land claimed. And there had to be some sort of continuing association. That looks to have been the difficulty.

MR ADDISON: Well, your Honour, I just remember the issue of the quarantine station as being such a big issue in the ..... document, which was the draft connection report that we’re talking about. There seems to be no reference to Mr Johnson not being a traditional owner.

HIS HONOUR: Yes.

MR ADDISON: I think that’s clearly acknowledged in the connection report.

HIS HONOUR: Well, that’s not a case which is before me, about whether there is or isn’t native title on Magnetic Island. That has been dealt with. Mr Johnson has sought to challenge the Indigenous Land Use Agreements Registration and failed. There are many issues that would come up in a native title case.

MR ADDISON: Of course, your Honour.

HIS HONOUR: One of them these days would be whether the taking of particular land on that island during World War II for defence purposes extinguished native title. There are lots of issues, but they’re all just theoretical.

MR ADDISON: Yes. Since Brown v Western Australia, Mr Johnson seems more convinced than ever - - -

HIS HONOUR: That’s right. That would come up, I expect, on the tenure side. There’s another case which is before the High Court at the moment after Brown from far North Queensland, Congo v State of Queensland, about whether taking of land by the military in World War II itself extinguished native title. I’ve walked over Magnetic Island; I know it’s a beautiful place. But I’ve seen the forts there, so I know there must have been taking of land for defence purposes. But all that’s theoretical.

MR ADDISON: Your Honour, I guess Mr Johnson is trying to convince you that if he was able to talk to Rangiah J in person and present what we have today to Rangiah J, that Rangiah J may have made either a different decision or chose to refer the matter to a pro bono panel. We can do no more than suggest to your Honour that that - - -

HIS HONOUR: That’s true. Well, I would have power myself to do that. But there’s no guarantee that what would drop out of that would be anyone willing to take it on. And then even if someone did, there’s no guarantee that they would say things Mr Johnson wanted to hear.

MR ADDISON: Yes, your Honour. The issue is whether if that material was before the registrar, that there was differences like that, that she may well have stamped the document, rather than choosing to not stamp the document. I know that is what your Honour has to decide.

(Transcript QUD 409 of 2014, 3 November 2014, pp 19-20.)

17    In our view this segment of transcript demonstrates unambiguously that his Honour did not, during the course of the hearing, purport to express any conclusions concerning the existence of native title in Magnetic Island, and more importantly that his Honour simply noted during the course of an exchange with Mr Paterson that the prospect of extinguishment of native title because of military use of land was “theoretical” in light of the then-pending decision of the High Court in Congoo. None of this material in any way gives credence to ground 2 of the notice of appeal before us. No error on the part of the primary Judge has been established. Ground 2 fails.

18    In respect of his claim relating to undue influence, Mr Johnson submitted that s 199C(2) and (3) of the Native Title Act contemplated an action to remove details of an ILUA from the Register because of fraud, undue influence or duress by any person, and the primary Judge erred in finding that this matter had already been litigated before Rangiah J. More particularly, Mr Johnson submitted that while duress was raised before Rangiah J, the question of undue influence had not been argued before his Honour.

19    It is now too late to raise such a ground.

20    In his originating application before Rangiah J, Mr Johnson specifically sought an order pursuant to s 199C(2) directing the Registrar to remove the details of the ILUA from the Register. Mr Johnson based his claim solely on an allegation of duress to which he and the Wulgurukaba people had been allegedly subjected. This is one of the three discrete grounds contemplated by s 199C(3) of the Native Title Act. He did not raise either fraud, or undue influence as a ground before Rangiah J. The primary controversy was whether the Court ought make an order pursuant to s 199C(2) and, as the primary Judge in this case found, this primary controversy was finalised in the orders of Rangiah J in Johnson v Native Title Registrar. It is not open to Mr Johnson to now seek to resurrect this claim by reference to another possible ground, namely, undue influence upon which he could have relied in the original proceedings before Rangiah J. An Anshun estoppel arises where the matter relied upon in the subsequent proceeding could and should have been raised in the first proceeding on the basis that it was so relevant to the subject matter of the first action that it would have been unreasonable not to have relied on it: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602-3 per Gibbs CJ, Mason and Aickin JJ. This doctrine is founded upon a matter of public policy that a party should not be troubled twice in the same matter: Murphy v Abi-Saab (1995) 37 NSWLR 280 at 286 per Gleeson CJ. The primary Judge, in effect, so concluded. There is no doubt that the issue of undue influence was centrally relevant to any claim for removal under s 199C(2). Indeed, we note the terms of the originating application dated 27 June 2014, and which was heard and determined by Rangiah J. It is Form 109 referrable to O 34.110(1). On page 2 the form directs the applicant to what requires to be stated in the accompanying affidavit in these terms:

Accompanying affidavit

The application must be accompanied by an affidavit stating:

(a)    if the ground relied on is fraud – the date on which the fraud first came to the notice of the applicant; and

(b)    if the ground relied on is undue influence – the date of the first occurrence of the act of undue influence; and

(c)    if the ground relied on is duress – the date of the first occurrence of the act of duress.

21    The appellant signed this application. His accompanying affidavit deposes only to alleged duress by the native title applicants’ lawyer because they signed the ILUA as a result of his negligent advice.

22    It was clearly unreasonable for the appellant not to have raised the alternative ground of undue influence before Rangiah J. Accordingly, an Anshun estoppel arises to preclude it being raised later. The primary Judge was correct, in effect, so to find.

23    As a general proposition costs follow the event. In this case however the respondent has sought no order as to costs.

24    The appeal will be dismissed.

Associate:

Dated:    25 May 2015