FEDERAL COURT OF AUSTRALIA

Edwards v Santos Limited (No 3) [2011] FCA 886

THE COURT ORDERS THAT:

1.    The application made by the applicants’ notice of motion filed 9 June 2011 is dismissed.

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

REASONS FOR JUDGMENT

1    Whatever its outcome may be, the present application offers a reminder, if there were not already reminder enough in this matter, of how the summary disposal of a proceeding can, ironically, prove antithetical to the timely resolution of a controversy. Especially that is so where, as here, at the heart of that controversy, lie difficult but nonetheless relatively narrow questions concerning the construction and application of legislation to facts which are a given. In such circumstances the call of a summary judgment application can be akin to that of the Sirens.

2    By their present application the Applicants seek that I disqualify myself from the further hearing and determination of the substantive application on the ground that, in the events which have transpired and particularly having regard to the reasons which I earlier gave for dismissing their application, an apprehension of bias exists.

3    To highlight the basis for the present application it is necessary to detail some of the history of this litigation.

4    In 2009 each of the Respondents sought the summary dismissal of the substantive application brought by the Applicants as representatives of the Wongkumara People. The nature of that substantive application is described in the judgment which I came to deliver in respect of the summary dismissal application: Edwards v Santos Ltd (2009) 263 ALR 473 at [4] to [7] (original judgment):

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.

5    Santos Limited (Santos) and Delhi Petroleum Pty Limited (Delhi) sought the summary dismissal of that application on the basis that:

(a)    the Court lacked jurisdiction to entertain it; and

(b)    even if there were jurisdiction, the application had no reasonable prospect of success such that it should be dismissed in terms of s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA).

For its part, though the State did not concede that jurisdiction existed, it submitted that it was unnecessary to decide that question because the application did not, in terms of s 31A, enjoy a reasonable prospect of success. In advancing their respective submissions that the application did not enjoy a reasonable prospect of success, each Respondent submitted that it was not materially distinguishable from the earlier judgment of the Full Court in The Lardil Peoples v Queensland (2001) 108 FCR 453 (Lardil’s Case). The Applicants disputed this proposition. They additionally submitted that the Court had jurisdiction to entertain the substantive application, even though they were but the “registered native title claimant” under the Native Title Act 1993 (Cth) (NTA), that native title in respect of the subject land had not been determined and that no such determination had been sought in the present proceeding.

6    Santos and Delhi further submitted that, in any event, the declaratory relief sought by the Applicants could be seen as “staging posts” such that, as a matter of discretion, I should in any event decline to grant declaratory relief.

7    In the result, I upheld each of the Respondents’ submissions. Save in two respects, the need for which will become apparent, it is not necessary to recall my reasons for so doing. I concluded, at [54], that Lardil’s Case was not materially distinguishable. As to the “staging post” submission, I stated, at [55] to [57] of my original judgment:

Exercise of Discretion

55    In the event that the foregoing conclusions are wrong, I should none the less not be disposed to the grant declaratory relief [sic] 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 3) (2005) 189 FLR 441 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.

8    I ordered that the substantive application be dismissed. There was a separate, consequential judgment in respect of costs, Edwards v Santos Limited (No 2) [2010] FCA 238 (costs judgment), but it is not necessary for present purposes to detail any of the reasons for that judgment.

9    The Applicants sought leave to appeal from the judgment ordering the dismissal of the substantive application. Subsequently, they obtained from another judge of this Court orders directing that:

(a)    the application for leave to appeal be heard by a Full Court of this Court; and

(b)    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 - Edwards v Santos Limited [2010] FCA 34.

10    The Full Court dismissed the application for leave to appeal: Edwards v Santos Limited (2010) 185 FCR 280. By that time, an application for leave to appeal against the costs judgment was also before the Full Court. That, too, was dismissed by the Full Court: ibid.

11    The Full Court upheld (185 FCR 280 at [19]) my conclusion that Lardil’s Case was not materially distinguishable such that that application should be dismissed pursuant to s 31A of the FCA on the basis that it did not enjoy reasonable prospects of success. In deference to the submissions of all parties, the Full Court also made some observations with respect to another basis upon which I had dismissed the substantive application namely, an absence of jurisdiction on the basis of the absence of a justiciable “matter”. The Full Court expressed agreement with this alternative basis of dismissal. In so doing the Full Court stated (185 FCR at [24]):

For the Court to opine on the legal status of a petroleum lease that has not been granted and may never be granted would be to opine on what is, as the respondents submit, ‘an archetypical hypothetical situation’. At best it would assist the parties in negotiating an agreement; it would not resolve any immediate right or interest (either vested or contingent) between them.

12    In addition, the Full Court referred to (185 FCR 280 at [12]) but did not find it necessary to deal with the discretionary basis upon which, in the further alternative, I had dismissed the substantive application.

13    Section 33 of the FCA regulates the ability of a party to appeal to the High Court from a judgment of this Court. It also provides for exceptions in respect of which judgments may be the subject of an appeal to that court. Parliament’s presumed authority for this regulation and these exceptions is no doubt s 73 of The Constitution (Cth).

14    One of the exceptions for which s 33 provides, and thus a judgment of this Court which may not be the subject of an appeal to the High Court, by special leave or otherwise, is a judgment of the Court with respect to an application for leave to appeal: s 33(4B)(a) of the FCA, referring to s 25(2) of the FCA. The judgment of the Full Court in this matter was such a judgment.

15    Faced with this apparent obstacle, the Applicants applied to the High Court for what is now termed the constitutional writ of mandamus directed to the judges of this Court, me included, so as to compel an exercise of jurisdiction and an associated writ of certiorari quashing the orders made in this Court both by me and by the Full Court. Such an application is made in the original jurisdiction of the High Court, as conferred by s 75(v) of The Constitution. In respect of some of this Court’s orders, the Applicants made their application for this relief outside the times limited by the High Court Rules 2004 (Cth) (HCR).

16    On 18 August 2010, in the High Court’s original jurisdiction, Heydon J ordered that:

(a)    so far as necessary the times specified in Pt 25, r 25.06.1 and r 25.07.2 of the HCR, for filing the application for an order to show cause, be extended to 21 June 2010; and

(b)    the application to show cause filed on 21 June 2010 be referred to the Full Court - Edwards v Santos Limited [2010] HCATrans 213.

17    Upon that application being referred, a Full Court of the High Court determined that this Court did have jurisdiction to grant, and that the Applicants had standing to seek declaratory relief in respect of whether the grant of a petroleum lease by the State to Santos or Delhi 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 Pt 2 of the NTA: Edwards v Santos Limited (2011) 85 ALJR 464 (Edwards v Santos 85 ALJR 464). The High Court ordered that a writ of certiorari issue quashing the order of dismissal and costs order which I had made and also that of the Full Court refusing a grant of leave to appeal. The High Court refused the application for a mandamus “on the ground that that type of relief is not necessary in this case”: 85 ALJR 464 at [53].

18    The High Court’s orders were made and the accompanying reasons for judgment were published on 30 March 2011. They came to my attention later that day upon their posting on the internet.

19    Much lies behind the refusal of a mandamus in the circumstances of this case on the basis that it is “not necessary”. “Not necessary” is not to be confused with either “not available” or “not necessary to seek”. Though this Court has from its inception been declared by statute (s 5(2) of the FCA) to be a superior court of record, its jurisdiction is not general but only as conferred by statute: see s 19 of the FCA (original jurisdiction) and s 24 of the FCA (appellate jurisdiction) respectively. Further, its judges are “officers of the Commonwealth” for the purposes of s 75(v) of the The Constitution. The judges of a court constituted by such officers are amenable to a mandamus to compel the exercise of a jurisdiction which has wrongfully been refused: R v Commonwealth Court of Conciliation of Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 398. Where, as here, the wrongful refusal was by such a court, a mandamus may be refused because it is expected that, the error as to absence of jurisdiction having been highlighted, the court would, without the need for any compulsion, proceed to exercise as soon as possible the jurisdiction claimed. What is “necessary” in such circumstances is the issuing of a writ of certiorari to quash such orders as have been made in error. That remedy, as Heydon J notes, Edwards v Santos 85 ALJR 464 at [53], “may issue in the exercise of an implied ancillary or incidental authority to the effective exercise of s 75(v) jurisdiction”. The expectation then is that, the formal but erroneously made orders having been quashed and the reasons for the error exposed in the High Court’s reasons for judgment, the subordinate court constituted by judicial officers of the Commonwealth will proceed to exercise the jurisdiction concerned. That is why the issuing of a mandamus, which is a discretionary remedy, can be in circumstances like the present, be considered “unnecessary”.

20    Being of this understanding, I considered it incumbent upon me, as its docket judge, to bring the matter on for a directions hearing in respect of its further conduct, in light of the High Court’s judgment, as soon as possible. To do otherwise would be contrary to the expectation which underpins why, as a matter of discretion, a mandamus was refused. My usual practice is to conduct directions hearings each Friday, as necessary, in respect of cases on my docket. Given the proximity of such a day to the date on which the High Court had delivered judgment, I listed this matter for directions on Friday, 1 April 2011 and directed that the parties be notified accordingly.

21    As it transpired, the promptness of this listing came as something of a surprise to the Applicants. Upon their being notified of the listing it emerged that they took the view that the High Court’s order would not have effect until served. Rule 8.02 of the HCR provides that, subject to any contrary order (here, there was none), “an order, whether of the Full Court or a Justice, shall take effect from and be dated on the day on which it is given or made”. Being aware of the contents of the High Court’s order on 30 March 2011, I took the view that the exercise of the jurisdiction the existence of which the High Court’s judgment had vindicated at the Applicants’ suit was not dependent upon the service of the order and that its exercise should not be postponed until some time after the Applicants chose to serve the order on the Registrar, whenever that might be. I therefore directed that the listing be confirmed and the Applicants notified accordingly.

22    On 1 April 2011 the Applicants were represented by a town agent solicitor who reiterated the Applicants’ view as to a need for the order to be served but who otherwise knew little of the case. In the result, I gave directions for the filing of such amended pleadings as the parties may be advised, listed the trial for hearing on dates to be fixed in November this year and adjourned the matter for further directions on 17 June 2011.

23    The Applicants’ filed their present application on 9 June 2011. It was mentioned on 17 June 2011 and listed for separate hearing in July. Also on 17 June 2011 I indicated to the parties that it would be of assistance if the parties addressed in their written and oral submissions, the question of whether, in applying for a mandamus, the Applicants had, by this conduct, waived any right to object, on the basis of apprehended bias, to my sitting.

24    The basis upon which the present application is made is to be found in my earlier conclusion that Lardil’s Case is not materially distinguishable and in the passage from my original judgment entitled “Exercise of Discretion”, which I have quoted above. These, it was submitted, gave the appearance of pre-judgment. In light of this, the Applicants submitted that a reasonable apprehension of bias existed were I further to proceed with the hearing and determination of the substantive application in its presently amended form.

25    For their parts, each of the Respondents neither consented to nor opposed the present application. That said, they made helpful submissions as to the relevant principles and issues which arose in application of those principles in the circumstances of the present case. So, too, did the Applicants with the added submission that, in the application of those principles in those circumstances, I ought not further proceed with the hearing of the substantive application but instead adjourn it so that another judge could be assigned to that task.

26    As to the respondents, it ought also to be recorded that each of them stated that, having regard to the judgment of the High Court in Edwards v Santos 85 ALJR 464, it would no longer be submitted that Lardil’s Case was an obstacle to the granting of any relief to the Applicants or that, in the context of a discretion to grant declaratory relief, that any of the relief sought by the Applicants ought to be classified as a “stepping stone”. Indeed, in relation to the discretionary nature of the relief sought, the State went further and stated that, if the Applicants made out their substantive arguments as to the effect of the NTA and State legislation, it accepted that they would be entitled to declaratory relief. Santos and Delhi did not go quite this far. At least for the present, they reserved their position as to whether, in light of events which were not in evidence before me at the time when the original judgment was given, there might nonetheless exist a basis upon which declaratory relief might not be given as a matter of discretion.

27    The Applicants did not suggest that any case for disqualification based on actual bias was raised on the evidence. Rather, the case was put on the basis that there existed a reasonable apprehension of bias. There was no dispute between the parties as to the test to be applied in that regard. That is as stated in the following passage from the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Ebner):

6    Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

[Footnote references omitted]

Some other passages from the joint judgment in Ebner, at [19] to [23] should also be cited:

19    Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

20    This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

21    It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.

22    The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.

23    Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence.

28    In these passages one finds not just the pertinent test to be applied in relation to whether there exists a reasonable apprehension of bias but also some important qualifying and countervailing considerations.

29    One qualifying consideration is whether, even if the circumstances otherwise gave rise to a reasonable apprehension of bias, there has been a waiver.

30    In Vakauta v Kelly (1989) 167 CLR 568 at 587 (Vakauta v Kelly) Toohey J, with whom Brennan, Deane and Gaudron JJ expressed general agreement in this regard, observed:

There is no reason why, in authority or in principle, a litigant who is fully aware of the circumstances from which ostensible bias might be inferred, should not be capable of waiving the right later to object to the judge continuing to hear and dispose of the case.

“Ostensible bias” was a term then in use to describe what would now be termed a reasonable apprehension of bias. Each term was and is used in contradistinction to actual bias. Earlier in his judgment in Vakauta v Kelly at 585, Toohey J referred with approval to a comment made by Kirby P (as his Honour then was) in S. & M. Motor Repairs v. Caltex Oil (1988) 12 NSWLR 358, at pp. 373 “in certain circumstances, a litigant may be held to have waived the right to be heard to complain, by reason of conduct, such as knowingly waiving an objection to the participation of a judge”.

31    The countervailing consideration is that a judge is not at liberty to decline to hear a case without good cause. As to this duty, in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 Mason J stated:

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established" (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

[emphasis added]

32    Assuming for the moment that my earlier conclusion in respect of Lardil’s Case and the passage in respect of discretion in my original judgment were capable of giving rise to a reasonable apprehension of bias in the event that the dismissal order were overturned and the substantive application came back to me for hearing, there can be no doubt that the Applicants were aware of this conclusion and this passage. The judgment was published to the parties in open court on 18 December 2009. It was available from the moment of its publication not just to the parties but also to the world at large, initially upon application at the registry and shortly thereafter via posting on the internet.

33    Thereafter, the Applicants sought leave to appeal. The Full Court dealt with that application on the basis that submissions on the leave application would be treated as submissions on the appeal in the event that leave were granted. There is nothing in the summary of their argument before the Full Court which would suggest that they drew to the attention of the Full Court any need for a direction that, if the appeal succeeded, it ought not, as it otherwise would, revert to me as its assigned docket judge because that could give rise to an apprehension of bias.

34    Be this as it may in respect of the Full Court proceeding, the Applicants thereafter sought a mandamus as well as certiorari. As noted, the respondent parties to that application included each of the judges of this Court. Neither on the initial hearing of that application before Heydon J nor upon its referral to the Full Court of the High Court is there any hint in the submissions of the Applicants of any possible need for the making of a special order excluding me or any other judge from conducting the further hearing of the substantive application in this Court in the event that the application before the High Court succeeded. On the Applicant’s submissions in the present application, a reasonable apprehension of bias would also exist in respect of each of the judges who constituted the Full Court, for they expressed unanimous agreement with the conclusion that Lardil’s Case was not distinguishable: Edwards v Santos Limited (2010) 185 FCR 280 at [20].

35    That the High Court could make such an order is, in my opinion, clear. It could do so by way of an additional order or direction made in conjunction with the granting of certiorari. The source of the power so to do would either be by implication from power to grant the orders referred to in s 75(v) of The Constitution or from the power conferred by s 32 of the Judiciary Act 1903 (Cth) to grant complete relief to the parties. In Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at [123] (Wang) Kirby J, citing Livesey v NSW Bar Association (1983) 151 CLR 288 at 300, observed:

Seventhly, it was conceded by the Minister (correctly in my view) that it was competent for the Federal Court, in making an order under s 481(1)(b), upon returning a judicially reviewable decision to the Tribunal, to give directions to the effect that the application should be reheard before a differently constituted Tribunal. Such a direction is not uncommon in the exercise of appellate or judicial review jurisdiction where a conclusion is reached that a rehearing by the same decision-maker would be unlawful (where a decision is set aside for reasons of actual or apparent bias) or otherwise undesirable (in the interests of justice). In the exercise of its appellate and review jurisdiction under the Constitution, this Court does not hesitate to so provide.

[Emphasis in original; footnote references omitted]

This aside, given the conduct upon which the Applicants now rely to give rise to a reasonable apprehension of bias, another remedy expressly conferred by s 75(v) itself was open to them to seek namely, a writ of prohibition directed to me: R v Watson; ex parte Armstrong (1976) 136 CLR 248 (Watson). There was nothing to stop the Applicants seeking the issue of a writ of prohibition against me, a writ of mandamus against the other judges of the court and, further or alternatively, a writ of certiorari.

36    At first blush at least, there is something rather odd about the notion that, being aware of bases in a judicial officer’s original judgment that are thought to give rise to an apprehension of bias, the Applicants can apply for a writ so as to compel, inter alios, that judicial officer to exercise the jurisdiction one asserts to exist on the one hand and, on the other hand, upon the vindication of that assertion without a hint of concern as to the resumption of the case by that judicial officer, object, on the ground of apprehended bias, to that judicial officer’s exercising that jurisdiction. That has at least the appearance of conduct constituting a waiver.

37    The Applicants submitted to the contrary.

38    In their written submissions they submitted that they did not press for a mandamus before the High Court. That is inconsistent with the penultimate sentence in the Applicants’ submission in reply before the Full Court of the High Court, “We would, your Honours, press the orders that are sought”: Edwards v Santos Limited [2010] HCATrans 318. In any event, the relevant conduct is the application, without qualification, for the order, not whether or not that was pressed, much less whether it was granted.

39    The Applicants further referred to a practice described in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42-43 (Northern NSW FM Case):

If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal. There are, of course, cases where it is convenient for the Tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the Tribunal as previously constituted to consider the matter again. See for example Versatile Carpets Pty Ltd v Collector of Customs (unreported, Federal Court of Australia, Sweeney, Woodward and Davies JJ, 21 February 1985) in which the Court remarked, " ... subject to questions to availability of members, it would be helpful if the matter were heard by the Tribunal as it has so far been constituted".

The Applicants submitted that, having regard to this practice, they considered that there was no need to seek any special order in the High Court as to the constitution of this Court for the further hearing of the substantive application. They were not, it was submitted, put to any election before the High Court.

40    Waiver though, as the authorities cited above make clear, can be inferred from conduct. A formal election is not necessary.

41    In the context of appeals from or the judicial review of decisions of administrative tribunals, this Court does follow a practice described in the Northern NSW FM Case. Usually, any remitter order is cast in general terms, remitting the case to the tribunal for hearing and determination according to law. In the absence of cause, to do otherwise can be seen to be an unwarranted interference with the task of administration of that tribunal consigned by its governing statute to its president. The position though is different if there is some special feature of the decision which was under challenge which makes it at least desirable, if not necessary, that the tribunal be or not be differently constituted. In such cases, and especially when a party is legally represented, the expectation is that attention will be drawn ideally in the course of submissions and certainly no later than the making of final disposition orders to any special feature. The reason for that is obvious. It avoids controversy in respect of apprehended bias if, after remitter, the tribunal is constituted as before.

42    The Appellants though had no warrant for assuming that this practice applied in respect of a proceeding in this Court which was, by collateral challenge, shown to have miscarried because of a misapprehension as to an absence of jurisdiction. By a now long standing practice, this Court conducts its judicial business via a docket system. Practice Note CM 1 issued on 26 September 2009 (current until the commencement of the present Federal Court Rules on 1 August 2011) describes that system in this way:

The essential element of the individual docket system is that a case is allocated to a docket of a particular judge at the time of filing with the intention that it will remain with that judge for case management and disposition.

[Emphasis added]

The description of the docket system in that practice note was but then most recent description of a system adopted by this Court in the mid-1990’s.

43    Under the docket system, cases are randomly assigned to a judge upon the filing of an initiating proceeding. That random assignment avoids “judge shopping”. That practice was followed in this case when the Applicants filed their substantive application in this Court. Neither at the time when they sought leave to appeal from the Full Court of this Court nor at any time thereafter was there a basis for their having any expectation, arising from the practice of this Court, other than that, should my earlier orders be set aside and pending the disposition of the substantive application, it would do other than remain on my docket. There is no practice note which suggests that a case will automatically be reassigned to the docket of another judge when the order made by that judge is set aside after challenge. Rather, that depends on the circumstances of the particular case with the expectation being, when the challenge is to a Full Court of this Court that any special feature in those circumstances relevant to by whom the case should be heard if the challenge succeeds is drawn to the attention of the Full Court.

44    The Applicants did not advert to any judgment or practice note of the High Court which obviated a need to drawn to that court’s attention, upon further or collateral challenge, a suggested need or absence of need for this Court to be differently constituted if a challenge succeeded.

45    The High Court does make such orders. I have already referred to what Kirby J stated in Wang. In Sillery v The Queen (1981) 180 CLR 353 (Sillery), which was an appeal, not an application for a constitutional writ and related relief, the High Court allowed an appeal against a judgment of the Queensland Court of Appeal which had affirmed a sentence of life imprisonment imposed by the trial judge who considered that the governing legislation made the imposition of such a sentence mandatory. The High Court held that the statute did not provide for a mandatory sentence, quashed it and expressly remitted the matter to the trial judge to exercise the sentencing discretion. Had the appellant in that case been of the view that there was anything flowing from either the trial judge’s original view of the law, reasons for judgment or, for that matter, in any of his original sentencing remarks such that a reasonable apprehension of bias existed in the event of remitter to him, his counsel (and for that matter counsel for the Crown) would have had a duty to draw that to the attention to the High Court. A generation later, that duty is no different. Neither is it confined to the exercise of that court’s appellate jurisdiction.

46    Moreover, the duty to the Court of counsel was not the only source of the Applicants’ obligation to draw to the attention of the High Court anything grounded in my reasons for judgment that was said to give rise to a reasonable apprehension of bias in the event that I resumed the hearing and determination of the case. The point ought expressly to have been raised in the application which the Applicants filed in the High Court at least in terms of the orders sought. In Ramadan v New South Wales Insurance Ministerial Council (unreported, New South Wales Court of Appeal, Kirby P, 7 April 1995, BC9507292) Kirby P stated (at [4]):

If an allegation of actual or apprehended bias is to be made in court proceedings, it should not only be recorded in a timely fashion during the trial. It should be alleged, with appropriate particularity, in subsequent proceedings, as in the notice of appeal.

[Emphasis added]

His Honour added:

The rule derives not only from modern principles of pleading. It rests also upon respect for the judicial office and recognition that it is a serious, and not a light, matter for a party or its legal representatives, to allege bias against a judge. If it is to be claimed, it must be done quickly and with particularity.

I respectfully agree with these statements. Further, I regard them as just as applicable to an application for a constitutional writ and further or other relief as to a notice of appeal.

47    For these reasons, I conclude that, even if the objection on the basis of apprehended bias otherwise had merit, the ability so to object has been waived by the Applicants.

48    For the avoidance of doubt and as I intimated at the hearing of the present application, I do not consider that there is anything in the conduct of the Applicants after the handing down of the High Court’s judgment on 30 March 2011 and upon the resumption of proceedings in this Court on 1 April 2011 which constitutes a waiver.

49    It is true that the Applicants voiced no objection to my continuing to hear the case when it was mentioned on 1 April and trial dates were then fixed. It is also true that the objection must be taken at the earliest possible opportunity rather than saved up for later use depending on the turn of events: Re McCory; ex parte Rivett (1895) 21 VLR 3 at 6.

50    In the circumstances prevailing, the mention on 1 April was not the earliest possible opportunity after resumption, in my opinion. I have no doubt that the Applicants genuinely did believe that the case would not be mentioned before me as promptly as it was. Further, upon reflection, there was a reasonable basis for such a belief. The order made by the High Court relevantly directed the issuing of a writ of certiorari to the judges of this Court (the fourth defendant) to quash nominated orders of this Court. The present form of such a writ is found in Form 13 in the Schedule to the HCR. In form that requires the sending by the nominated party, within the time limited by the writ, of the orders or decision to be quashed “together with this Writ for that Court to deal with as it sees fit”. The language of the writ has a prospective element about it. At least arguably, the orders of this Court, being entered orders of a superior court of record, still stood until the record, in the form of those orders, was quashed in this manner. It would be quite unjust to regard anything of the Applicants’ conduct between 30 March and up to and including 1 April as constituting a waiver. Rather, the relevant conduct constituting a waiver had already occurred by 30 March 2011.

51    If though my conclusion as to waiver is incorrect, I consider that the asserted bases do not give rise to a reasonable apprehension of bias.

52    In Johnson v Johnson (2000) 201 CLR 488 at [12] to [13], Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ stated:

12    The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".

13    Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.

[Internal footnote references omitted]

53    In this matter I have not to date voiced any conclusion as to the merits of the Applicants’ contention in relation to the whether ATP 259 is valid. So much would be pelucidly clear to the hypothetical reasonable observer on the face of the original judgment.

54    As for Lardil’s Case, on one view, if, as the Applicants contend, the High Court had nothing to say in the constitutional writ judgment with respect to that case, the reasoning of the Full Court, upholding my conclusion in the original judgment as to the impact of that case would remain intact. That could hardly give rise to any question of pre-judgment, for I would remain bound by that reasoning as to the applicability of Lardil’s Case. Be that as it may, I am not at all persuaded, having regard to the reasoning of Heydon J from [33] to [52], which on the points covered was that of the Court, that Lardil’s Case in any way prevents the Applicants from obtaining the relief which they seek. Rather, the whole tenor of his Honour’s reasoning is that the Applicants have no need either for there be a determination in respect of native title nor even to claim the same in this proceeding in order to claim the relief they seek. Nothing in their amended application alters that. It is though not necessary any more to reach a concluded view about whether Lardil’s Case is fatal to any part of the Applicants claim as now amended. None of the respondents contend any longer that it is. The Applicants have always contended that it had no such fatal impact. I am obliged to apply the law as I understand the High Court has found it. In this regard, the position in which I find myself is similar to that of the trial judge in Sillery. The view of the law which I had differs from that of the High Court. I am obliged now to follow the views of the High Court. I am not obliged to raise for determination issues which the parties do not unless I consider that I am bound so to do. The hypothetical reasonable observer is to be credited with appreciating that.

55    Of course, in Sillery, the trial judge did not go on to additionally state that, even if he had a discretion he would still impose the same sentence. I did intimate, in the passage quoted, why, as a matter of discretion, the relief sought should not be granted. Here again, that “staging post” rationale is quite inconsistent with the reasoning of Heydon J at [33] to [52], especially his Honour’s statements at [39] that the first declaration sought by the Applicants raised not a hypothetical question but one which is “concrete and real” and that the opinion which they seek is “not merely advisory”. It would be quite wrong to compartmentalise his Honour’s reasoning as having ramifications only in respect of jurisdiction. None of the Respondents suggested that it did. Rather, they expressly eschewed any further reliance upon a “staging post” rationale as a basis for a discretionary refusal of declaratory relief. Once again, that rationale did not arise from adverse findings of fact. In circumstances where no party puts it forward any longer and where the order made in partial reliance on it has been quashed I am not obliged, unless I consider myself bound in law so to do, to raise of my own motion a “staging post” argument as a basis for discretionary refusal of relief. I consider that the High Court’s reasoning is consistent only with the view that what the Applicants seek is no “staging post” but a legitimate forensic end. A hypothetical reasonable observer, aware that the question of whether the relief claimed should be granted falls afresh to be determined by a professional judge who has the benefit of the High Court’s judgment could not, in my view, entertain a reasonable apprehension of bias based on prior reference to “staging post” reasoning. It is just no longer an issue in this case.

56    Unlike, for example, Betfair Pty Ltd v Racing New South Wales (No 14) [2010] FCA 696, a case upon which the Applicants relied, this is not, on analysis, a case where I am obliged, in order to determine the substantive application, to assess the quality of my earlier forensic reasoning. The issues which form the bases of the apprehended bias claim no longer fall for consideration in this case. Its determination will not involve any assessment of the quality of my earlier forensic reasoning.

57    There can be no “pre-judgment” of issues which no longer fall for judgment.

58    My original judgment contained no findings of fact adverse to any party. That could not therefore give rise to any reasonable apprehension of bias.

59    For these reasons, I conclude that no basis for a reasonable apprehension of bias exists.

60    That is not the end of the matter for the Applicants further submitted that, even if I did not consider that such a basis existed, I should nonetheless decline to sit. That circumstance might counsel that course as a matter of prudence is acknowledged in a passage from Ebner quoted above. There is though other counsel on the authorities which I find “loud and clear”. Given that the principal issue now is whether ATP 259 is valid, with all that entails in terms of the consequential effect of the NTA and that I have never voiced any view on the validity of that authority, I consider that I am duty bound to exercise the jurisdiction which the High Court has concluded exists. Especially that is so as the only question of discretionary refusal which may be raised is one which will involve an assessment of facts not previously in evidence before me. To recuse myself would see the Applicants achieve the very result to which I have concluded they are not entitled (Watson at 295 per Jacobs J).

61    For these reasons, I dismiss the application.

Associate:

Dated:    5 August 2011