FEDERAL COURT OF AUSTRALIA

Edwards v Santos Limited [2010] FCA 34

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be heard by a Full Court of this Court.

2.                  Subject to any contrary direction of the Full Court, the application for leave to appeal be heard concurrently with, or alternatively, immediately before the appeal.

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.

REASONS FOR JUDGMENT

1                     In December 2009 his Honour Logan J delivered judgment in Edwards v Santos Limited [2009] FCA 1532. In that judgment his Honour found against the applicants before him, who are also the applicants to the notice of motion before me. Those applicants have filed an amended notice of motion seeking leave to appeal against his Honour’s decision. However at the hearing before me last Friday the applicants pressed only for two orders, namely:

·                    a direction under O 52 r 2AA(a) of the Federal Court Rules that the application for leave to appeal be referred to a Full Court; and

·                    a direction that, subject to any contrary direction of the Full Court, the application for leave to appeal be heard concurrently with, or alternatively, immediately before the appeal.

2                     In my view the applicants are entitled to those orders.

Relevant legislation

3                     Section 25(2)(a) of the Federal Court of Australia Act 1976 (Cth) states that an application for leave to appeal to the Court may be heard and determined by a single Judge or by a Full Court. However it is clear from the terms of O 52 r 2AA of the Federal Court Rules that, prima facie, hearing and determination of such an application is by a single Judge. An application of this nature is heard and determined by the Full Court only if there is a direction by a Judge to that effect. More specifically, so far as relevant O 52 r 2AA provides:

Exercise of Appellate Jurisdiction (Act s 25)

2AA An application mentioned in subsection 25(2) of the Act must be heard and determined by a single Judge unless:

(a) a Judge directs that the application to be heard and determined by a Full Court; or

(b) …

Background

4                     The applicants are registered native title claimants under the Native Title Act 1993 (Cth) in respect of land in south-west Queensland and north-west New South Wales (“the relevant land”). No native title determination has yet been made in respect of the applicants’ claim concerning the relevant land. The first respondent and the third respondent are the holders of an authority to prospect the relevant land (ATP 259P) issued under the Petroleum Act 1923 (Qld) (“Petroleum Act”). A function of officers of the second respondent is the issuing of petroleum leases under the Petroleum Act.

5                     At the substantive judgment Logan J observed that the institution of the substantive proceedings originated from a difference of opinion between the applicants on the one hand, and the first and third respondents on the other, in the course of negotiations between them concerning the making of an Indigenous Land Use Agreement, as to whether the issuing of petroleum leases would constitute pre-existing rights based acts for the purposes of Pt 2 Div 3 Subdiv 1 of the Native Title Act 1993 (Cth). His Honour also noted that a related controversy was whether any such petroleum leases would then not be subject to the “right to negotiate” provisions of the Native Title Act 1993 (Cth) (Edwards v Santos Limited [2009] FCA 1532 at [8]).

6                     Before his Honour the applicants had sought the following orders:

(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 1 of Div 3 of Pt 2 to the Native Title Act 1993 (Cth);

(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 Native Title Act 1993 (Cth) unless the requirements of Subdiv P of Div 3 of Pt 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.

7                     The first and third respondents had sought orders that the application be dismissed on the basis that the Court had no jurisdiction to entertain the application, and/or that in any event the application had no reasonable prospects of success. The first and third respondents submitted, inter alia, that for the substantive proceedings to have any prospect of success, the Court would need first to determine the existence or otherwise of the native title rights of the Wongkumara People (on whose behalf the applicants had commenced the proceedings) in respect of the relevant land.

8                     His Honour dismissed the substantive application. In summary, his Honour found that the applicants had no reasonable prospect of success within the meaning of s 31A of the Federal Court Act, and further that the Court had no jurisdiction to entertain the State law aspect of the applicants’ claim. In so finding his Honour relied in particular on the decision of the Full Court in The Lardil Peoples v Queensland (2001) 108 FCR 453.

9                     The applicants filed an application for leave to appeal against his Honour’s decision, supported by the affidavit of Mr Neumann, the solicitor for the applicants, annexing a draft notice of appeal. If leave to appeal were to be granted the applicants nominate eleven grounds of appeal identifying bases upon which his Honour erred in reaching his decision, including that his Honour erred in finding that the decision in The Lardil Peoples (2001) 108 FCR 453 was not distinguishable from the present case.

Direction pursuant to Order 52 rule 2AA

10                  Clearly there must be grounds justifying a departure from the prima facie position that applications for leave to appeal are be heard and determined by a single Judge. Issues relevant to the exercise of the Court’s discretion include the following:

·                    Factors of efficiency. As a general rule applications for leave to appeal which are relatively straightforward will be more efficiently dealt with by a single judge than by a Full Court.

·                    Whether orders the subject of the application for leave to appeal could properly be characterised as a “minor interlocutory squabble” (TS Production LLC v Drew Pictures Pty Ltd [2008] FCA 1329 at [7]), or whether important and final consequences for the parties followed from the orders (irrespective whether substantive rights were determined).

·                    Whether the applicant’s claims raise issues of novel and general importance which should be the subject of consideration by a Full Court.

·                    Whether, prima facie, it can properly be said that there are arguments of substance supporting the contention that the primary judgment is attended by sufficient doubt to warrant reconsideration by the Full Court, or substantial injustice, on the basis that a hopeless application should not be referred to the Full Court (Allphones Retail Pty Ltd v Weimann [2009] FCA 849 at [13]). While clearly it is premature at the point of considering the appropriate Court to hear an application for leave to appeal to give detailed consideration to the question whether the applicant can substantiate its case for leave to appeal to be granted, conceptually it is difficult to separate the issue of appropriate forum from the more substantive question whether leave to appeal from the primary judgment should be granted. This was reflected during the hearing before me where extensive submissions were made by Counsel as to the merits of the primary judgment of his Honour.

·                    Factors of cost. If the Court directs that the application for leave to appeal is to be heard by the Full Court concurrently with the appeal the parties will be put the expense of preparation for an appeal notwithstanding that leave to appeal may be refused. The flip side of this particular coin is that, in the absence of such a direction, there is the potential for considerable duplication in submissions to the Full Court, in the sense that much of the same material will be covered during both the hearing of the application for leave to appeal and the actual appeal hearing. Such a direction is, of course, subject to any contrary direction by the Full Court itself.

·                    Other factors relevant to the justice of the particular case or the interests of the particular parties, including the urgency of a hearing and determination in individual circumstances.

11                  A number of these factors emerge from cases including Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCA 47, TS Production LLC [2008] FCA 1329, Zegarac v Pitcher Partners [2009] FCA 1061, Allphones Retail Pty Ltd [2009] FCA 849 and Harding v Deputy Commissioner of Taxation (2008) 172 FCR 469.

Consideration

12                  In light of the detailed and extensive consideration given by his Honour to the application before him it is not obvious to me at this stage of the proceedings that his Honour’s decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court as explained in The Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. However Mr McCarthey QC for the applicants submitted strongly that not only was his Honour in error, but that the application for leave to appeal should be referred to the Full Court because, in summary:

·                    A conclusive interpretation of s 31A of the Federal Court Act by the Full Court is desirable in light of a range of views of the Court at first instance.

·                    The litigation between the parties did not represent a “minor interlocutory squabble”. Rather, his Honour’s decision put an end to the litigation between the parties, and the applicants were prejudiced as a result.

·                    His Honour was wrong in his application of the decision in The Lardil Peoples (2001) 108 FCR 453.

·                    The case raises issues of public importance in relation to the Native Title Act 1993 (Cth).

13                  For the purposes of the application before me, Mr McCarthey’s submissions are, to varying degrees, helpful. Following the decision of the Full Court in Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 where the Full Court examined s 31A, the importance of the Full Court so soon thereafter revisiting the origins, meaning and effect of s 31A is not clear to me. Further, as I observed to Mr McCarthey QC during the proceedings, the mere fact that an order had been made pursuant to s 31A summarily dismissing a substantive application for want of reasonable prospects of success (and thus bringing an end to the litigation) does not in itself warrant automatic referral of an application for leave to appeal to the Full Court – else all applications for leave to appeal from decisions made pursuant to s 31A should properly be directed to the Full Court. Section 25 of the Federal Court Act and O 52 r 2AA clearly do not contemplate that outcome. However:

·                    I consider that there is potentially some merit in Mr McCarthey’s extensive submissions concerning the application of the decision The Lardil Peoples v Queensland (2001) 108 FCR 453 in the context of the primary judgment;

·                    I accept that these proceedings did not constitute a “minor interlocutory squabble”, but that his Honour’s orders resulted in important consequences for the parties; and

·                    I accept that the case potentially raises issues of public importance.

14                  While Mr Flanagan SC for the second respondent pressed his submission that indeed his Honour’s findings were correct in their entirety, and that accordingly it was appropriate that any application for leave to appeal should be heard by a single Judge, the complexity of the issues in question in the substantive proceedings are such that Counsel’s written submissions in support of that single issue were themselves extensive. In my view, prima facie, the application for leave to appeal does not represent a hopeless case inappropriate for referral to the Full Court, and there appear to be issues which are quite properly suitable for consideration by the Full Court.

15                  I note the submissions of the respondents concerning the cost implications of the proceedings being referred to the Full Court both for hearing the application of leave to appeal as well as the appeal itself. On balance however I consider that the potential costs and inefficiency of duplication of arguments should the application for leave be heard by a single judge and the matter then proceed to appeal support an order that both the application and the hearing of the appeal be heard and determined concurrently by the Full Court. This direction is, of course, subject to contrary ruling by the Full Court itself.

16                  In my view the appropriate directions are those sought by the applicants, namely:

·                    A direction under O 52 r 2AA(a) of the Federal Court Rules that the application for leave to appeal be referred to a Full Court; and

·                    A direction that, subject to any contrary direction of the Full Court, the application for leave to appeal be heard concurrently with, or alternatively, immediately before the appeal.

Associate:

Dated:         4 February 2010