FEDERAL COURT OF AUSTRALIA
Edwards v Santos Limited [2009] FCA 1532
ABORIGINES - Application - Declarations - Injunction - Whether grant of a petroleum lease under the Petroleum Act 1923 (Qld) in respect of land claimed by "registered native title claimants" under the Native Title Act 1993 (Cth) is not a pre-existing rights based act within the meaning of the Native Title Act – Applicant the registered native title claimant - Whether Court has jurisdiction to entertain the application – Whether the application should be dismissed for want of reasonable prospects of success – Whether present proceeding would necessitate the determination of the existence or otherwise of native title rights of the Applicant in respect of the claimed land in the proceeding – No application for determination of native title in the proceeding – Whether the Applicants had standing to seek any of the relief claimed - Held no reasonable cause of action - Held application doomed to fail - Held proceeding did not relate to a “matter” – Held application merely a colourable attempt to invoke Federal jurisdiction – Held Applicants lacked standing – Held In any event, declaratory relief sought merely a “staging post” such that it was inappropriate to grant relief as a matter of discretion - Application dismissed
Federal Court of Australia Act 1976 (Cth) s 21, 23, 31A
Native Title Act 1993 (Cth) ss 24AA, 24HA, 24IB, 24IC, 24ID, 24NA, 24OA, 25, 26, 28, 81, 85A, 213, 227, 233
Judiciary Act 1903 (Cth) s 39B
Petroleum Act 1923 (Qld)
Federal Court Rules O 11 r 16
Constitution s 76
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 followed
White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298 followed
The Lardil Peoples v Queensland (2001) 108 FCR 453 applied
Re Judiciary and Navigation Acts (1921) 29 CLR 257 applied
Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394 considered
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 applied
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 distinguished
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 cited
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 cited
Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 cited
WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111 cited
Cook v Pasminco Ltd (2000) 99 FCR 548 applied
Hopper v Egg and Egg Pulp Marketing Board of Victoria (1939) 61 CLR 665 applied
Platypus Leasing Inc v Commissioner of Taxation (No 2) (2005) 189 FLR 411 followed
McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 followed
Lane P, Lane’s Commentary on the Australian Constitution (1997)
Zamir I and Lord Woolf, The Declaratory Judgement (2nd ed, 1993)
Cowen, Sir Zelman and Zine L, Federal Jurisdiction in Australia (3rd ed, 2002)
QUD 86 of 2009
LOGAN J
18 DECEMBER 2009
BRISBANE
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
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GENERAL DIVISION |
QUD 86 of 2009 |
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NOELENE MARGARET EDWARDS, CLANCY MCKELLAR, IONA DAWN SMITH, ERNEST (HOPE) EBSWORTH, ROSEMARY (ROSE) ANNE WILSON, MARGARET ANNE COLLINS, SHARLENE LOUISE KNIGHT AND ARCHIE EBSWORTH Applicant
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AND: |
SANTOS LIMITED First Respondent
STATE OF QUEENSLAND Second Respondent
DELHI PETROLEUM PTY LTD Third Respondent
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JUDGE: |
LOGAN J |
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DATE OF ORDER: |
18 DECEMBER 2009 |
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WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. The Application is dismissed.
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 eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
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GENERAL DIVISION |
QUD 86 of 2009 |
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BETWEEN: |
NOELENE MARGARET EDWARDS, CLANCY MCKELLAR, IONA DAWN SMITH, ERNEST (HOPE) EBSWORTH, ROSEMARY (ROSE) ANNE WILSON, MARGARET ANNE COLLINS, SHARLENE LOUISE KNIGHT AND ARCHIE EBSWORTH Applicant
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AND: |
SANTOS LIMITED First Respondent
STATE OF QUEENSLAND Second Respondent
DELHI PETROLEUM PTY LTD Third Respondent
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JUDGE: |
LOGAN J |
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DATE: |
18 DECEMBER 2009 |
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PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
1 The Applicants, on behalf of the Wongkumara People, are the “registered native title claimant” under the Native Title Act 1993 (Cth)(NTA) in respect of land in south-west Queensland and north-west New South Wales (the claimed land). There has not, as yet, been any native title determination by this Court in respect of the claim they make concerning that land. That issue is the subject of separate proceedings (matter QUD 52 of 2008) instituted in the Court by the Applicants. The Applicants do not, in the present proceeding, either seek to establish the native title which they claim or seek any interlocutory relief pending the hearing and determination of that claim.
2 The First Respondent, Santos Limited (Santos) and the Third Respondent, Delhi Petroleum Pty Ltd (Delhi Petroleum) are the holders of an authority to prospect (ATP), ATP 259P, issued under the Petroleum Act 1923 (Qld) (Petroleum Act). ATP 259P covers land falling within the claimed land.
3 One of the functions of officers of the Second Respondent, the State of Queensland (the State), is the issuing of petroleum leases under the Petroleum Act in respect of land covered by an ATP.
4 In the form in which the application has come to be amended, the Applicants seek the following as final relief:
(a) a declaration that the grant of a petroleum lease to the First or Third Respondents in respect of any land covered by ATP 259P would not be a pre-existing rights based act within the meaning of Subdiv I of Div 3 of Part 2 of the NTA;
(b) a declaration that the grant of a petroleum lease to the First or Third Respondents in respect of any land covered by ATP 259P would not be valid pursuant to s 24ID of the NTA unless the requirements of Subdiv P of Div 3 of Part 2 of that Act had been satisfied; and
(c) an order restraining the State of Queensland from granting a petroleum lease to the First or Third Respondents in respect of any land covered by ATP 259P.
5 ATP 259P was originally issued under the Petroleum Act on 31 January 1979 for a term of four years commencing on 1 January 1979. That ATP has, since then, at least purportedly been renewed for further successive terms with the latest being a term of 4 years commencing on 1 January 2007.
6 It is alleged in the amended statement of claim that either or each of renewals of ATP 259P purportedly effected in 1983 and 1987 were of no effect because there was then no power in the Petroleum Act to extend the term of an ATP. It is further alleged that, as a consequence, all subsequent purported renewals of the ATP were void and of no effect. I set out the material allegations of fact in the statement of claim later in these reasons for judgment.
7 The Applicants raise for consideration the following, consequential points of law in the statement of claim:
(a) any grant of a petroleum lease to the First and Third Respondents in respect of any of the Claimed Land covered by ATP 259P would not be a pre-existing rights based act within the meaning of Subdiv I of Div 3 of Pt 2 of the NTA; and
(b) they, as registered native title claimants, would have the right to negotiate pursuant to Subdiv P of Div 3 of Pt 2 of the NTA in respect of any proposed grant.
8 The institution of the present proceeding, evident from the statement of claim, has its origin in a difference of opinion as between the Applicants, representing the Wongkumara People, and Santos and Delhi Petroleum, in the course of negotiations between them concerning the making of an Indigenous Land Use Agreement, as to whether the granting of petroleum leases to them by officers of the State would constitute pre-existing rights based acts for the purposes of Pt 2, Div 3, Subdiv 1 of the NTA. A related controversy is whether any such petroleum leases would then not be subject to the “right to negotiate” provisions of the NTA.
9 The reaction of Santos and Delhi Petroleum to the institution of this proceeding has been to seek its summary dismissal or, at the least, the striking out of the statement of claim.
10 Santos and Delhi Petroleum put their case for the dismissal of the proceeding on either or each of the following bases:
(a) the Court has no jurisdiction to entertain the application; and
(b) even if the Court does have jurisdiction, the application has no reasonable prospects of success in terms of s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
With respect to the alternative summary relief of striking out of the statement of claim, but for like reasons to those advanced in support of the dismissal of the application itself, they contend that the amended statement of claim fails to disclose a reasonable cause of action and is embarrassing. Thus, they submit that the amended statement of claim should be struck out pursuant to O 11 r 16 of the Federal Court Rules. Yet further, they submit that the present proceeding is embarrassing in the sense that, if it is to have any prospect of success, it would necessitate the determination of the existence or otherwise of the native title rights of the Wongkumara People, in respect of the claimed land. The embarrassment is said to arise because that question is already at large in matter QUD 52 of 2008 and of the potential therefore for inconsistent findings. They also raise an interrogative note concerning the standing of the Applicants to bring this proceeding.
11 For its part, the State also seeks the summary dismissal of the application but confines the basis upon which it seeks that relief to an absence of reasonable prospects of success. In advancing its case for a dismissal on that basis, the State does not concede that jurisdiction exists. Rather, it submits that it is unnecessary to decide the question of jurisdiction because, even if there were, the application has no reasonable prospects of success.
12 It is convenient first to consider whether the application has any reasonable prospects of success.
Reasonable prospects of success?
13 In Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 the Full Court examined the origins, meaning and effect of s 31A of the FCA Act. The Full Court stated (at 408, [25]):
The effect of s 31A was to soften the test for a successful application for summary judgment as stated by the High Court in Theseus Exploration NL v Foyster (1972) 126 CLR 507 … and also the test for a successful application for summary dismissal as stated by Dixon J, as his Honour then was, in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and by Barwick CJ in General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125…. See also Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd (2008) 167 FCR 372 at [45], [57], [63], [124].
14 This effect noted and by reference to secondary materials, the Full Court counselled that “a generally cautious approach should still be adopted to the exercise of the court’s powers under s 31A” (at 408, [28]). The Full Court particularly endorsed an observation concerning s 31A made by Lindgren J in White Australia Industries Ltd v Commissioner of Taxation (2007) 160 FCR 298 at 310, [50] that the section is concerned with “the bringing and defending of proceedings, not just with pleadings, with substance, not just with form”.
15 Section 31A consigns to the Court a discretion as to whether the questions of law raised in a case are of such difficulty as to make it preferable not to resolve them summarily. It was not submitted that this was such a case in relation to issues related to the NTA. Rather, each of the parties invited the determination of them insofar as pertinent to the respondents’ summary judgment application. In the event that I concluded that there was jurisdiction and standing, I was not asked to determine either summarily or as a separate question of law the merits of the State law issue as to the ability now of officers of the State under the Petroleum Act to grant petroleum leases on the strength of ATP 259P. For the purpose of the summary judgment application, the parties assumed that the factual foundation of the Applicants’ case was as alleged in the amended statement of claim. I have done likewise.
16 The submission of Santos, Delhi Petroleum and the State that the application has no reasonable prospects of success is, in summary:
(a) the Applicants do not seek a determination of native title in the present proceeding;
(b) the definition of “future act” in s 233(1) of the NTA is that it is an act which, apart from the NTA, either validly affects (in the sense that word is to be understood in light of in s 227 of the NTA) native title in relation to the land or would, if valid, affect native title;
(c) in light of Full Court’s judgment in The Lardil Peoples v Queensland (2001) 108 FCR 453 (Lardil), to secure final relief of the kind sought by the Applicants it is not sufficient to establish only that an act might affect native title if native title were found to exist;
(d) a corollary of this is that mere status as a registered native title claimant can never supply the requisite element in the definition of future act, which is also an element in any entitlement to the relief sought.
17 The Applicants, in summary, make the following submission in response:
(a) Lardil is distinguishable because it related to procedural rights conferred by s 24HA and s 24NA of the NTA and not the right to negotiate under Subdiv P of Div 2 of Pt 3 of that Act;
(b) in any event, the declaration that the grant of a petroleum lease would not constitute a pre-existing rights based act does not require the Applicants to establish that they have native title because, if there is no valid ATP, it necessarily follows that there could be no valid grant of a petroleum lease.
18 The latter submission entails some exploration of the ability of this Court to make any pronouncement in relation to the validity of an administrative actions arising only under State law. That is best considered in conjunction with the separate, jurisdictional challenge which Santos and Delhi Petroleum make.
19 Lardil is not distinguishable. To the contrary, that case confirms, in a binding way, what a reading of the definition of “future act” in s 233 of the NTA would in any event suggest. That is, materially, that a future act is one which “affects” native title, not an act which, if native title existed, “might” affect it. To construe the definition in the latter way would, as French J (as the Chief Justice then was) observed in Lardil (at 473, [59]), “require a re-writing of the statutory definition in s 233 which would significantly alter the operation of the act. Such a course is not justified by the language of a statute”. Similar sentiments are evident in the judgments of the other members of the Full Court in Lardil – see p 476, [70] per Merkel J and p 486, [114] per Dowsett J.
20 The “right to negotiate” claimed by the Applicants forms part (Subdiv P) of Div 3 of Pt 2 of the NTA. Regard to the overview of Div 3 of Pt 2 of the NTA, offered by s 24AA, also exposes the flaw in the Applicants’ position. Thus, s 24AA(1) accurately informs the reader that Div 3 “deals mainly with future acts, which are defined in s 233” and that, “Acts that do not affect native title are not future acts; therefore this Division does not deal with them” (emphasis added). In turn, s 24AA(2) of the NTA offers the accurate general observation that, “to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not”.
21 These general propositions, evident from the overview of Div 3, are expressly articulated in s 24OA of the NTA, which provides:
24OA Future acts invalid unless otherwise provided.
Unless a provision of this Act provides otherwise, a future act is invalid to the extent that it affects native title.
This section does not attend with invalidity a future act which might affect native title, were the same to exist.
22 The existence of the flaw thus exposed is reinforced by a more detailed consideration of provisions within Subdiv P of Div 3 of Pt 2 upon which the Applicants must necessarily rely.
23 Within Subdiv P of Div 3 of Pt 2, the overview of the Subdiv found in s 25 and the express provision found in s 26 as to the application of the Subdivision each make plain that the application of the Subdivision is conditioned on the existence of a “future act”.
24 In respect of the future acts to which Subdiv P of Div 3 of Pt 2 applies, s 25(4) informs that, if the procedures in the Subdivision are not complied with, the act will be invalid to the extent that it affects native title. To the extent that acts which affect native title are undertaken before negotiations under Subdiv P of Div 3 of Pt 2 are conducted or without one of the paragraphs of s 28(1) being satisfied, those acts will be invalid: per force of that subsection.
25 Section 26 of the NTA describes the types of future acts to which the “right to negotiate” relates. Of the future acts there described, of particular concern to the Applicants, having regard to the relief which they seek, is an act to which applies s 24IC, which is located within Subdiv I of Div 3 of Pt 2. Subdiv I of Div 3 of Pt 2 of the NTA applies to future acts which are either:
(a) a pre-existing right-based act (see s 24IB); or
(b) a permissible lease etc, renewal (see s 24IC).
26 The future acts which constitute a “pre-existing right-based act” are those specified in s 24IB of the NTA. These are acts which take place:
(a) in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid (including because of Div 2 or Div 2A); or
(b) in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made
Section 24IC details the elements which constitute particular future acts as “permissible lease etc, renewals”. One of the constituent elements of a “permissible lease etc, renewal” is that the grant of an original authority (part of the term “original lease etc. as defined by s 24IC(a)) was a “pre-existing right-based act”. Another element of a “permissible lease etc, renewal” is that the authority concerned is valid.
27 If Subdiv I of Div 3 of Pt 2 of the NTA applies to a future act then, materially, and subject to the operation of operation of the “right to negotiate provisions found in Subdiv P, the act is valid: s 24ID(1)(a).
28 What this more detailed consideration demonstrates is that the Applicants’ claim for declaratory and injunctive relief is necessarily premised on the proposition that the grant of a petroleum lease by an officer of the State to Santos or to Delhi Petroleum is a “future act,” as defined. If the grant is not a future act then it is unnecessary to consider any of the provisions of Div 3 of Pt 2 of the NTA to which the Applicants refer in that claim.
29 Further, the NTA does not, pending the hearing and determination of the Applicants’ native title claim, oblige Santos, Delhi Petroleum or the State to engage in negotiations with the Applicants. Nor does the NTA prevent the issuing of a petroleum lease by an officer of the State on the strength of an ATP. What it does is to hold invalidity in prospect should it transpire that there is a determination that native title assists and the title so determined has been “affected”.
30 As in Lardil, the relief sought by the Applicants is final relief in a proceeding where no claim for native title is advanced. They rely on their status as the “registered native title claimant”. Yet the advancing and successful vindication of a native title claim, not status as the “registered native title claimant”, is, given the definition of “future act”, just as central to the application of provisions upon which the Applicants rely as it was to those under consideration in Lardil. To seek to distinguish Lardil on the basis that the rights within Div 3 of Pt 2 with which that case was concerned were “procedural rights” ignores this centrality.
31 For the purposes of s 31A of the FCA Act the Respondents have established that the Applicants have no reasonable prospect of securing any of the declaratory and injunctive relief which they seek, insofar as they rely on other than State law for any part of that relief.
Jurisdiction & Standing
32 Section 81 of the NTA confers on the Court jurisdiction to hear and determine applications that “relate to native title”. Read in isolation and as a matter of first impression and language, the jurisdiction conferred by this section appears to require nothing more or less than a relevant connection between the subject matter of an application and native title. In Lardil though (108 FCR at [156] and [68]), the conclusion was reached, after a consideration of the context in which s 81 appears in the NTA, that the section confers jurisdiction only in respect of applications under Pt 3 of that Act. This is not such an application.
33 Perhaps recognising this, the Applicants did not point to s 81 as a source of jurisdiction to entertain their application. Instead, they adverted to s 213(2) of the NTA, to s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act) and to s 21 of the FCA Act. Subject to the operation and effect of the other provisions of the NTA, s 213(2) confers jurisdiction on the Court “in relation to matters arising under the Act”. For its part, s 39B(1A)(c) of the Judiciary Act confers jurisdiction with respect to “matters arising under any laws made by the Parliament”. The reference to s 21 of the FCA Act as a source of jurisdiction is misconceived. That section operates where some other provision has conferred original jurisdiction on the Court and, in such circumstances, empowers the Court to “make binding declarations of right, whether or not any consequential relief is or could be claimed”. In other words, s 21 is a source of power, not jurisdiction.
34 Common to each of s 39B(1A)(c) of the Judiciary Act and s 213(2) of the NTA is that the jurisdiction they confer is confined to the “matters” which those sections respectively specify. No point was taken in Lardil as to the absence in that case of a “matter”.
35 The root authority in respect of what constitutes a “matter” for the purposes of a law conferring Federal jurisdiction is Re Judiciary and Navigation Acts (1921) 29 CLR 257. In that case (at 265) the following pronouncement was made in relation to s 76 of the Constitution:
It was suggested in argument that "matter" meant no more than legal proceeding, and that Parliament might at its discretion create or invent a legal proceeding in which this Court might be called on to interpret the Constitution by a declaration at large. We do not accept this contention; we do not think that the word "matter" in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If the matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may, we think, adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law.
Put shortly, the giving of an advisory opinion is antithetical to an exercise of Federal jurisdiction.
36 The Applicants do not (and could not) contest that the relevant test reposes in this pronouncement. Rather, they submit that, in terms of the course of authority with respect to that pronouncement, a “matter” does exist. They point to the existence of present negotiations and submit that there is an issue between them and the Respondents, evident from the relief sought, which is and will remain real and not hypothetical unless and until:
(a) Santos and Delhi Petroleum disclaim any right to have the State grant to them as a pre-existing rights based act a petroleum lease in respect of the claimed land under the Petroleum Act or indicate that they will not be seeking the grant of such a lease; or
(b) The State indicates that it agreed with the Applicants that the grant of such a lease was not a pre-existing rights based act and that it would not grant such a lease to Santos and Delhi Petroleum.
37 Santos and Delhi Petroleum contend that there is an absence of any pleading in this case of material facts giving rise to a specific dispute. In that absence, they submit, is to be found a crucial difference between a “matter”, albeit one arising in respect of conduct yet to take place, in which declaratory relief may permissibly be sought in the exercise of Federal jurisdiction and the seeking of such relief on a purely hypothetical basis. An example of the presence of such a difference telling against the existence of jurisdiction is, they submit, to be found in Australian Institute of Private Detectives Ltd v Privacy Commissioner (2004) 139 FCR 394 (Private Detectives Case).
38 The Private Detectives Case is but a particular example of the application of the principles expounded in the joint judgment in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 as to the means of differentiating between a permissible invocation of judicial power and the impermissible posing of an academic or hypothetical question. That exposition is of particular importance because of the way in which “matter” has come to be understood for the purposes of Federal jurisdiction.
39 The following propositions emerge from that exposition:
(a) The purpose of a judicial determination is the making of a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy (at 355, [44]);
(b) In light of that purpose, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions (at 355-356, [47]);
(c) It does not violate this proposition for a declaration to be sought as to whether conduct which has not yet taken place will not be in breach of contract or a law (at 356, [47]); and
(d) The crucial difference between the seeking of such a declaration and an advisory opinion is whether what is sought is based on a concrete situation as opposed to being divorced from the facts (at 356, [48]).
40 The last of these propositions was illustrated by the High Court in that case (at 356, [48]) by reference, with evident approval, to the following passage from Zamir I and Lord Woolf, The Declaratory Judgement, (2nd ed, 1993) at 132:
"If ... the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion."
[Emphasis in original]
41 In the Private Detectives Case (at 401-402, [29]-[32]) Sackville J analysed the nature and effect of the pleaded case in the following way:
29 In the present case, a reading of the Statement of Claim makes it plain that the Institute seeks the declarations it claims independently of any specific factual allegations. The pleading does not allege that the Institute or its members have sought specific information from an identified organisation for a particular purpose. Nor is it alleged that the organisation denied the request by reason of a particular provision of the Privacy Act or determination of the Commissioner. As I have noted, the Institute seeks no relief in respect of any refusal by the Commissioner to make a determination under s 72 of the Privacy Act.
30 The Statement of Claim merely alleges that the Institute ‘through its members’ undertakes investigations on behalf of clients in connection with ‘litigation, potential litigation and matters related to litigation’ and that the investigations involve obtaining personal information from organisations which record the information for their own business purposes (pars 4, 6). It is then said that the Privacy Act proscribes the disclosure by organisations of personal information to the Institute and its members unless the disclosure is ‘required or authorised by or under law’. The Statement of Claim does not identify the circumstances in which particular investigations have taken place, the organisations requested for information or the particular use to which the information was intended to be put.
31 The difficulty is not that declarations sought by the Institute go merely to future events or circumstances. The difficulty is that they cannot quell any existing controversy between the Institute and the Commissioner. The first declaration, before it can be meaningful, requires a number of factual and legal issues to be determined. It must be established that the disclosing entity is an ‘organisation’ within the meaning of the Privacy Act and that the organisation is subject to the National Privacy Principles. The disclosure must be of ‘personal information’, as defined in the Privacy Act. It also must be for the purpose of enabling the Institute or a member to investigate on behalf of citizens in corporations ‘matters concerning litigation, or potential litigation’ (whose purpose is not made clear). The second declaration creates the same difficulties.
The conclusion which his Honour reached as a result of that analysis (at 402, [32]) was that, “in effect, the Institute seeks an advisory opinion from the Court without reference to any concrete facts”. That conclusion was fatal for the Applicant Institute in that case. Applying the propositions evident in Bass v Permanent Trustee Co Ltd, Sackville J held that the proceeding did not involve a “matter” and hence that the Court lacked jurisdiction under s 39B(1A)(c) of the Judiciary Act to entertain the Institute’s claim for declaratory relief.
42 In the present case the amended statement of claim contains the following allegations:
1 The applicants on behalf of the Wongkumara People are the registered native title claimant within the meaning of s 253 of the Native Title Act 1993 (Cth) (the NTA) in respect of land in south-west Queensland and north-west New South Wales, which land (“the Claimed Land”) is more particularly described in attachment B to Native Title Determination Application QUD52 of 2008 (as amended by leave granted by Dowsett J on 12 April 2008).
2 The first respondent and third respondent are recorded in the register kept under s 80A of the Petroleum Act 1923 (Qld) (the Petroleum Act) as the holder of an Authority to Prospect (ATP) 259P dated 31 January 1979 pursuant to the Petroleum Act in respect of land in south-west Queensland (the ATP Land), which land lies wholly within the boundaries of the Claimed Land.
3. The second respondent is a Government party within the meaning of s 26(1) of the NTA for lands and water within the state of Queensland.
3A. Since the grant of ATP 259P the first and third respondents have prospected and continue to prospect for petroleum on the ATP Land including the Claimed Land.
4. From about late 2005, representatives of the Wongkumara People and of the first respondent on behalf of the itself and the third respondent and other companies being joint venture partners of the first and third respondents have been engaged in negotiations for an indigenous land use agreement (“the proposed ILUA”) under the Native Title Act 1993 (Cth) (NTA), which negotiations relate, inter alia, to proposed future acts under the NTA in respect of the Claimed Land covered by the ATP.
4A. The proposed ILUA is to replace an Indigenous Land Use Agreement (“the former ILUA”) that was part of an Implementation Agreement dated 16 January 2001 and which was in force for a term of five years.
4B. The former ILUA was never registered under the NTA.
5. In the course of negotiations for the former ILUA and for the proposed ILUA the first respondent on behalf of itself and its joint venture partners has claimed that because ATP 259P predates the NTA and the grant of a petroleum lease under the Petroleum Act is a pre-existing rights based act (PERBA) within the meaning of Subdivision I of Division 3 of Part 2 of the NTA and as such is not subject to the right to negotiate provisions of Subdivision P of Division 3 of Part 2 of the NTA and should not be part of the negotiations for the proposed ILUA.
Particulars
Clause 9.4 of the former ILUA
Letter dated 4 November 2005 from the first respondent to representatives of the Wongkumara People.
6. The applicants have maintained that they are entitled to the right to negotiate under the NTA in respect of the grant of petroleum lease over the Claimed Land covered by the ATP and that the grant of a petroleum lease should be part of the negotiations for the proposed ILUA.
Particulars
Clause 9.4 of the former ILUA
Letter dated 18 June 2008 from Eddy Neumann Lawyers, solicitors for the applicant, to the first respondent.
7. ATP 259P was originally issued on 31 January 1979 for a term of four years commencing n 1 January 1979.
8. From time to time thereafter, the term of ATP 259P has purportedly been varied, extended or renewed.
Particulars
(a) 22 December 1982: variation by which the term was renewed for four years commencing on 1 January 1983.
(b) 18 December 1986: variation by which the term was extended for four years commencing on 1 January 1987.
(c) 7 May 1991: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1991.
(d) 20 September 1995: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1995.
(e) 24 June 1999: renewal by which the ATP was renewed for a term of four years commencing on 1 January 1999.
(f) 12 December 2003: variation by which the term of the ATP was extended for four years commencing on 1 January 2003.
(g) 3 January 2008: renewal by which the term of the ATP was renewed for a term of four years commencing January 2007.
43 Read with the relief sought by the Applicants, the amended statement of claim offers, in my opinion, a paradigm example of an impermissible attempt to secure an advisory opinion. What is revealed is nothing more than a difference in contractual negotiating positions between the Applicants, who claim in other proceedings, but have not yet been determined to hold, native title in respect of the claimed land and Santos and Delhi Petroleum who may one day seek to obtain from the State a petroleum lease in respect over part of the claimed land on the strength of ATP259P. It is not pleaded that any such lease has been granted or is even imminently to be granted.
44 In effect, what the Applicants seek is advice as to whether, were it to be determined that they hold native title and were a petroleum lease to be sought by and granted to Santos or to Delhi Petroleum by the State, that lease, if otherwise valid, would be an invalid future act if the negotiation requirements found in Subdiv P of Div 3 of Pt 2 of the NTA were not complied with? The hypothetical nature of the application is self evident. To adapt the language employed by Zamir I and Lord Woolf in the passage quoted, the question would only be whether the Applicants, Santos and Delhi Petroleum were generally obliged to act in a certain way? Before anything more meaningful than an answer to that question could be given, the legal and factual issues just mentioned would have to be determined and occur.
45 Further, the making in the Applicants’ favour of the declarations sought would not have the effect that the NTA obliged any of the respondents to negotiate with them. Rather, if the Applicants were later to have the benefit of a native title determination, a failure to comply with the negotiation provisions in the NTA would see that Act attend with invalidity an otherwise valid future act to the extent to which it affected that native title.
46 The claim for injunctive relief is bedevilled by like problems. There is no pleading of any imminent or even threatened grant of any lease by the State.
47 In Lardil (at 490, [136]), Dowsett J expressly adverted to the question of whether the Applicants in that case had standing to pursue the claim for relief insofar as it sought a declaration of invalidity under State law. His Honour doubted that they had standing. Nonetheless, he went on to consider the State law question, ultimately concluding that the decision sought to be impugned was valid. Of the other judges, French J, in the minority as to this aspect of the case, was of the view that there was no jurisdiction to determine the State law question. Though Merkel J expressed his agreement with the conclusion reached by Dowsett J as to the validity of the decision under State law, his Honour did not, in terms, expressly extend that agreement to the doubt as to standing which had been expressed by Dowsett J.
48 Standing has an importance beyond just whether the Applicants are entitled to seek any of the relief claimed insofar as they seek to challenge the validity of the renewals of the ATP under State law. Whether they have standing is an inherent aspect of whether the Court is seized with a “matter”. The reason why this is so is explained and illustrated by reference to relevant authority in Cowen and Zine’s Federal Jurisdiction in Australia (3rd ed 2002), pp 18-19:
The relationship of rules relating to standing to the meaning of “matter” and to the decision in In re Judiciary and Navigation Acts was the subject of discussion in Croome v Tasmania, where there was a suit against Tasmania for a declaration that a State law prohibiting sexual intercourse between males was inconsistent with a Commonwealth Act. The State admitted that the plaintiff has standing because he had engaged in the proscribed conduct and proposed to continue doing so in the future. But it was argued that there was no “matter” within the meaning of Chapter III of the Constitution because the Government had not acted to enforce the law. The argument was rejected on the ground that it was a misunderstanding of In re Judiciary and Navigation Acts. The judges had difficulty in severing the concepts of standing and matter. Gaudron, McHugh and Gummow JJ said:
During the course of argument it because apparent that the attempted severance in this case between questions going to the standing of the plaintiffs and those directed to the constitutional requirement of the exercise of federal jurisdiction with respect to a ‘matter’ was conceptually awkward, if not impossible.
They went on to say that where the issue is whether federal jurisdiction has been invoked with respect to a “matter”, “questions of ‘standing’ are subsumed within the issue”.
[Footnote references omitted]
49 Here, unlike in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, the Applicants do not have the benefit of any provision affording them any particular standing to seek any of the relief claimed in the application. While the position would be different if they had the benefit of a native title determination in their favour or even if the relief were sought in the context of an application for a determination of native title, the Applicants are strangers to any dealings between the State and Santos and Delhi Petroleum with respect to the granting of a particular petroleum lease. Their mere status as a registered native title claimant does not, in my opinion, give them standing to claim any of the relief sought, including any part which relies only on State law.
50 In Lardil, the majority concluded that the Court had jurisdiction to decide the State law question of the validity of an act under that law because deciding that question was an essential step in any determination of whether there was a “future act” under the NTA. Here, the Applicants have commenced an application not materially distinguishable from Lardil which, in light of that case, is doomed to fail with respect to its Federal aspects.
51 The essential connection with the Federal question provides the only jurisdiction which the Court could have to decide the State law question. In those circumstances, if there were jurisdiction to entertain the Federal question, the deciding of the State law question would be a matter of accrued jurisdiction in respect of which s 23 of the FCA Act would operate so as to confer jurisdiction.
52 However, the mere assertion of a cause of action under the NTA would not sufficient to bring the State law causes of action sought to be raised in the amended statement of claim within the “accrued jurisdiction” of the Court if the NTA claim were “colourable” and “not genuine”: Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 498-499; Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219; Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445 at 450; WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111 at [11]; Cook v Pasminco Ltd (2000) 99 FCR 548 at 550; and see Lane's Commentary on the Australian Constitution (1997), pp 516-517.
53 Claims purporting to give the Court jurisdiction are “colourable” and “not genuine” if they are obviously doomed to fail: Cook v Pasminco Ltd (2000) 99 FCR 548 at 550. To invoke the Court’s jurisdiction, claims must be “real and not mere pleading allegations” Hopper v Egg and Egg Pulp Marketing Board of Victoria (1939) 61 CLR 665 at 677 (Starke J).
54 In light of Lardil and the fact that the present case is not materially distinguishable from that authority, the present case was doomed to fail. The Federal law aspect of the application was therefore, in the sense the term is used in the cases “colourable”. That has the consequence that there is no jurisdiction to entertain the State law aspect of the claim, even if the Applicants had standing.
Exercise of Discretion
55 In the event that the foregoing conclusions are wrong, I should nonetheless not be disposed to the grant declaratory relief in respect of so much of the claim as remained and relied for its foundation on the State law question of whether it was lawfully possible to grant petroleum leases on the strength of ATP 259P. That would turn on a question as to whether on the particular dates pleaded there was a power of renewal in the Petroleum Act or otherwise under State law. Lardil indicates that jurisdiction would, in these contingent circumstances, exist to determine such a question in the accrued jurisdiction.
56 Jurisdiction is one thing; whether or not it is appropriate to exercise it is another. There is no right to declaratory relief. In Platypus Leasing Inc v Commissioner of Taxation (No 2) (2005) 189 FLR 411 Gzell J of the New South Wales Supreme Court referred (at [81]) to the undesirability of the use of declaratory relief as a “staging post” in litigation. In refusing, as a matter of discretion, to grant declaratory relief in respect of a goods and services tax controversy not yet the subject of an assessment his Honour referred with approval to the following observation made by Young J in McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312:
The plaintiff’s summons asks for a declaration that the yacht is the property of the plaintiff. I do not believe that such a declaration should be made. Declarations should not be made as a staging post in litigation, and in a case where some executive orders have to be made, it is usually best to proceed to consider those executive orders rather than making declarations.
57 I share the diffidence of Young J and Gzell J in relation to the use of declaratory relief as a “staging post”. On behalf of Santos and Delhi Petroleum it was submitted that the declarations sought by the Applicants in paragraphs 1 and 2 of the Amended Application were staging posts to the end of an assertion in the future of a right to negotiate. I agree that this is, in any event, the true way of conceiving the declarations sought. Therefore, even if for that reason alone, I should not be disposed, as a matter of discretion, to grant that relief.
Outcome
58 Given the conclusions which I have reached, the appropriate course to take in the circumstances is to dismiss the application. The alternative suggested, striking out of the amended statement of claim, is not appropriate. The only way to address the fundamental jurisdictional difficulty presently attending the application would be to plead a claim for native title. That would be pregnant with a potential for embarrassment derived from different findings given that the Applicants already claim a native title determination in respect of the claim land in other proceedings in the Court. Further, I have in any event concluded that it is not appropriate, as a matter of discretion, to grant the declaratory relief sought. For these reasons, I should not be disposed to allow any such amendment.
59 I shall hear from the parties as to costs, including whether costs should merely follow the event or whether s 85A of the NTA operates so as to require each party to bear their own costs.
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I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. |
Associate:
Dated: 18 December 2009
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Counsel for the Applicant: |
Mr J McCarthy QC with Mr J Kildea |
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Solicitor for the Applicant: |
Eddy Neumann Lawyers |
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Counsel for the First and Third Respondents: |
Mr S Lloyd SC with Mr S Cooper |
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Solicitor for the First and Third Respondents: |
Blake Dawson |
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Counsel for the Second Respondent: |
Mr P Flannagan SC with Mr G Del Villar |
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Counsel for the Second Respondent: |
Crown Law |
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Date of Hearing: |
23 June 2009 |
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Date of Judgment: |
18 December 2009 |
