FEDERAL COURT OF AUSTRALIA

Coulthard v State of South Australia (Adnyamathanha, Ngadjuri and Wilyakali Overlap Claim) [2018] FCA 2094

ORDERS

THE COURT ORDERS THAT:

1.    The relief sought in paragraphs 1 and 2 of the Interlocutory Application filed by Ms Stuart on 11 December 2018 (the applications for Ms Stuart to be recognised as amicus curiae and for the vacation of the consent determination) is refused.

2.    The question of costs is reserved.

3.    Noting the applications by each of the Adnyamathanha, Ngadjuri and Wilyakali Applicants and the State of South Australia for orders that the costs of, and incidental to, the application be paid by both Ms Stuart and her solicitor, any affidavits by those parties together with an outline of submissions not exceeding 5 pages in support of the applications are to be filed and served by 4pm on Friday 1 February 2019.

4.    Any affidavits and an outline of submissions in response by Ms Stuart and Mr Campbell are to be filed and served by 4pm on Friday 22 February 2019.

5.    The hearing of the application for costs will take place at 2.15 on Monday, 4 March 2019, with liberty to the parties to appear by videolink.

6.    There be liberty to the parties to apply with respect to the application for costs.

7.    These proceedings are adjourned to 11am on Friday 14 December 2018 in Orroroo for the Consent Determination.

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

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    I am dealing with an interlocutory application filed on 11 December 2018 by which the interlocutory applicant, Ms Stuart, seeks an order recognising her as amicus curiae in the proceedings, and an order that the order of the Court made on 12 October 2018 listing this matter for consent determination tomorrow be vacated.

2    It is appropriate to deal first with the application for the grant of leave to Ms Stuart to appear as amicus curiae.

3    Normally, litigation in a court is determined by reference only to the evidence and submissions of the parties to the proceedings. There are, however, two situations in which a court may hear from non-parties: when intervention is granted; and when there has been a grant of leave to a person to appear as amicus curiae. No person has a right to appear as amicus curiae. A person may be heard in that capacity only with the leave of the Court, and only to the extent permitted by the Court. It has been said that, rather than a person having a right to address the Court in the role of amicus, it is the Court which has the ability to accept an offer of assistance from a person in the position of amicus: Johnson v Sammon (1974) 7 SASR 431 at 434.

4    The Court’s discretion to allow a person to appear as amicus is unfettered.

5    The principles which guide the Court in the exercise of that discretion have been considered in a number of the authorities. These include Corporate Affairs Commission v Bradley; Commonwealth of Australia (Intervener) (1974) 1 NSWLR 391 at 396-8; United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 533-538; Bropho v Tickner (1993) 40 FCR 165 at 172-3; National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 at 380-382; Levy v The State of Victoria [1997] HCA 31, (1997) 189 CLR 579 at 604 (Brennan CJ); and Roadshow Films Pty Ltd v iiNet Limited [2011] HCA 54, (2011) 248 CLR 37 at [4]. See also the article by Kenny J entitled “Interveners and Amici Curiae in the High Court” (1998) 20 Adel LR 159 and the article by KF O’Leary entitled “The Attorney-General and the Role of Amicus Curiae” (1980) 54 ALJ 558.

6    The Court should be satisfied that it is in the interests of justice and proper for a person to be heard as amicus: US Tobacco at 534. The amicus must be willing to offer the Court a submission on law or a relevant fact which will assist it in a way in which the Court would not otherwise be assisted: Levy at 604. In the same case, Brennan CJ referred to his earlier decision in Kruger v The Commonwealth in which, in refusing counsel's application to appear for a person as amicus curiae, his Honour had said:

As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case. The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application.

(Emphasis added)

7    In Roadshow Films at [4], the High Court said that it needed to be satisfied that it would be significantly assisted by the submissions of the amicus and that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the expected assistance.

8    Generally, the Court is less inclined to grant a person leave to appear as amicus when it is apparent that the person wishes to adopt a partisan position in the proceedings, that is to say, going beyond a position of relative neutrality, although such a position is not fatal to an application.

9    The authorities indicate that the position of an amicus is very different from that of an intervener in that, amongst other things, an amicus cannot file interlocutory process or commence an appeal or otherwise take exception to a ruling of the Court.

10    Common situations in which an amicus may be heard include those in which the interests of a minor or other person at a disadvantage are in issue or in which matters affecting the public interest are at stake or in which the interests of a party may not, by reason of the indigent status of the party or for other reasons be adequately represented. But the cases in which the grant of leave to a person to appear as amicus are not confined to circumstances of those kinds.

11    Ms Stuart seeks a grant of leave to appear as amicus in order to advance a submission that not all applicants have agreed to the proposed consent determination. In particular, she wishes to contend that two persons, Ms Geraldine Anderson and herself who, with others, comprised the Adnyamathanha Applicant, have not agreed to the consent determination. She has provided an outline of the submissions which she will make to that effect and I have had regard to that outline and to the nature of the argument and evidence which Ms Stuart wishes to present.

12    Ms Stuart's application for a grant of leave to appear as amicus has been opposed by all parties to the proceedings other than the Commonwealth. It seems that Ms Stuart did not serve the Commonwealth with a copy of her interlocutory application and the supporting materials with the consequence that Ms Davis, appearing for the Commonwealth, has not had an adequate opportunity in which to take instructions concerning the application. I am treating the Commonwealth’s attitude, therefore, as being neutral.

13    In my view, a number of considerations indicate that leave should not be granted to Ms Stuart to appear as amicus curiae.

14    First, it is of the very essence of an amicus curiae that the person is not already a party to the proceedings. By definition, an amicus is a stranger to the litigation. Ms Stuart is not such a person. As I have already indicated, she is one of the persons who comprise the Adnyamathanha Applicant in Action SAD6001/1998. In my view, this is a fundamental difficulty for Ms Stuart's application. The very authorities on which Ms Stuart herself relies indicates the difficulty.

15    Secondly, it is apparent that there is dissension between the persons making up the applicant in the Adnyamathanha proceeding and that Ms Stuart wishes, if granted leave to appear as amicus, to use the occasion as a vehicle for ventilating those differences. That would not be appropriate. The Court should be cautious before allowing the intra-mural issues which arise from time to time in native title proceedings to be ventilated by a member of an applicant group appearing under the guise of amicus curiae. In particular, and using the language of Wilcox J in Bropho v Tickner, the Court should be wary about allowing an amicus curiae effectively to hijack the parties’ litigation, taking it off into new factual issues, expanding its length and imposing additional costs and disadvantages upon the parties.

16    Thirdly, Ms Stuart should not be represented in the proceedings by two sets of solicitors: by Johnston Withers, who act for the Adnyamathanha Applicant and by Campbell Law in her capacity as proposed amicus. It is well established that the persons who make up the applicant in native title proceedings are not entitled to separate representation: Burragubba v State of Queensland [2017] FCAFC 133; (2017) 254 FCR 175 at [141] and see the authorities cited therein. It is also well established that an applicant in native title proceedings made up of several persons must act in concert. But it is open to those persons to agree between themselves as to the way in which they will act in concert.

17    The Court should also be cautious before allowing the important role and obligations which solicitors for a party on the record have to the Court to be subverted. As Reeves J noted in QGC Pty Ltd v Bygrave [2010] FCA 659; (2010) 186 FCR 376 at [52], a solicitor on the record in any litigation has duties to both the Court and to his or her client, but the solicitor’s duty to the Court is “paramount” or “overriding”. There is no indication that the solicitors for the Adnyamathanha Applicant in these proceedings are not conscious of their obligations in this respect or that they are not discharging their duties to the Court.

18    Fourthly, all of the parties to the overlap proceedings, bar one, have legal representation. They are well able to assist the Court in arriving at a correct determination in the case. There has been no indication that they are unwilling to do so.

19    Fifthly, there are two parties to the proceedings with a particular responsibility with respect to the protection of the public interest. They are the State of South Australia and the Commonwealth. As is well known in consent determinations, the Court places particular reliance on the role of the State. There is no reason to suppose that either the State or the Commonwealth are not discharging their obligations in this respect.

20    Sixthly, it cannot be said that the issue which Ms Stuart wishes to agitate has been overlooked. It was raised by Mr Campbell on behalf of Ms Anderson at the very same hearing on which the Court listed the matter for consent determination. The Court then ordered that the person within the firm of Johnston Withers who had signed the consent determination on behalf of the Adnyamathanha Applicant, Mr Harbord, file and serve an affidavit deposing to the basis upon which he had done so with a view to satisfying the Court that the execution was properly authorised and properly executed. Johnston Withers filed such an affidavit made by Mr Harbord on 25 October 2018 and served it on all parties. Since that time, no party has raised with the Court any issue concerning the adequacy or otherwise of the execution by the Adnyamathanha Applicant of the consent determination. This is so even though each has been appraised of the basis upon which it was executed by the Adnyamathanha Applicant and even though each was aware of the issue raised by Mr Campbell at the hearing on 12 October 2018.

21    A curious feature of Ms Stuart’s foreshadowed submission, if leave to appear as amicus is granted, is that it contains no indication of why Mr Harbord’s affidavit should not be regarded as showing that the execution by the Adnyamathanha Applicant of the consent determination is effective. Her submission is only to the effect that two persons have not signed the consent determination but that submission does not even begin to grapple with the alternative ways by which it was open to the Adnyamathanha Applicant to sign, in an effective way, the consent determination.

22    Seventhly, it is apparent that Ms Stuart wishes to adopt a partisan position in the litigation. She intends going beyond merely pointing out to the Court some aspect of law or fact which may have been overlooked but instead to seek the vacation of the order fixing the time for the consent determination and the abandonment of the proposed consent determination. As counsel for the Adnyamathanha Applicant has submitted, Ms Stuart wishes to appear as amicus in order to obtain a form of vindication of her own position. The very way in which Ms Stuart frames the interlocutory application and the interlocutory orders which she seeks indicates that this is so.

23    Finally, there is the lateness with which the application has been brought. It was lodged with the Court late on Monday, 10 December and filed on 11 December 2018, some two months after the Court’s order of 12 October 2018 fixing the date for the consent determination and only three days before the scheduled consent determination. No explanation has been provided to the Court for that lateness. Ms Stuart says only that she has had no choice but to bring a late application. It is not readily apparent why that is so.

24    Her counsel, in defending her position, submitted that there was a lack of evidence as to the period during which Ms Stuart has been aware of the matters including the submission which was made to the Court on 12 October and of subsequent action taken by Ms Anderson. Counsel is correct in that respect but the absence of evidence is a matter for which Ms Stuart is responsible. It is not something which counts against the submission of the other parties concerning the lateness of the application. It counts against Ms Stuart. She and her legal representative can be taken to know of the very considerable resources allocated to any native title consent determination, both by the parties and by the Court. The allocation of resources is all the more when, as in this case, the consent determination is to take place on country.

25    In these circumstances, the absence of explanation for the lateness is striking. Related to this consideration is that the grant of the application to Ms Stuart to appear as amicus curiae will inevitably result in additional delay, cost and probably vexation to the other parties to the proceedings.

26    For these reasons, separately and in combination, the application for Ms Stuart to be recognised as amicus curiae is refused. The application of 11 December 2018 will be dismissed.

Associate:

Dated:    20 December 2018

SCHEDULE

SAD 6001 of 1998

First Applicant

Adnyamathanha No 1 Native Title Claim (SAD6001/1998)

First Applicant:    ANGELINA STUART

First Applicant:    BEVERLEY PATTERSON

First Applicant:    THATHY (GERALDINE) ANDERSON

First Applicant:    MARK MCKENZIE (SNR)

Second Applicant

Ngadjuri Native Title Claim (SAD147/2010)

Second Applicant:            ELLA HARRADINE

Third Applicant

Wilyakali No 2 Native Title Claim (SAD417/2015)

Third Applicant:    JANET CROWE

Third Applicant:    RICHARD EDGE

Third Applicant:    ELIZABETH HUNTER

Third Applicant:    BRIAN BATES

Third Applicant:    MAUREEN O'DONNELL

Respondents

Respondent:    COMMONWEALTH OF AUSTRALIA

Respondent:    DISTRICT COUNCIL OF ORROROO/CARRIETON

Respondent:    THE FLINDERS RANGES COUNCIL

Respondent:    AESTAS PTY LTD

Respondent:    ALPANA PTY LTD

Respondent:    FREDERICK SPENCER HOWE DOMAN

Respondent:    MARGARET CAMPBELL DOMAN

Respondent:    THOMAS ALASTAIR DOMAN

Respondent:    HGM PASTORAL PTY LTD

Respondent:    IAN C FERGUSON NOMINEES PTY LTD

Respondent:    JILL LARRITT

Respondent:    ELSPETH MARY DOMAN

Respondent:    ANDREW SPENCER DOMAN

Respondent:    CR & S PTY LTD

Respondent:    COMMODORE STATION PTY LTD

Respondent:    RICHARD BURY

Respondent:    DENIS F BEST

Respondent:    FRANCIS CAPOWIE PTY LTD

Respondent:    MOOLOOLOO PROPRIETORS PTY LTD

Respondent:    JAMES RANEMBE MORGAN

Respondent:    MUTOOROO PASTORAL COMPANY PTY LTD

Respondent:    ANNE NEED

Respondent:    NILPENA PARTNERS

Respondent:    BRENTON JOHN LUCKRAFT

Respondent:    ORATANA PTY

Respondent:    PARTACOONA PAST CO PTY LTD

Respondent:    QUINYAMBIE PASTORAL CO PTY LTD

Respondent:    GRAHAM ANDREW RAGLESS

Respondent:    OLARY INVESTMENTS PTY LTD

Respondent:    PAULINE ANN RAGLESS

Respondent:    RICHARD WILLIAM RAGLESS

Respondent:    RETEP PTY LTD

Respondent:    PHILLIP LEONARD SEARLE

Respondent:    SOUTH AUSTRALIAN FARMERS FEDERATION

Respondent:    GRISELDA SPRIGG

Respondent:    DOUGLAS P SPRIGG

Respondent:    MARGARET SPRIGG

Respondent:    TEETULPA PASTORAL CO PTY LTD

Respondent:    DAVID JOHN WARWICK

Respondent:    RICHARD MARCHANT WARWICK

Respondent:    WITCHELINA PTY LTD

Respondent:    WOODLENE PTY LTD

Respondent:    WINNIFRIED FARGHER

Respondent:    REX FARGHER

Respondent:    WILLIAM RESCHKE

Respondent:    CATHERINE DRIVER

Respondent:    DARREL FARGHER

Respondent:    WARREN FARGHER

Respondent:    JA SMITH

Respondent:    PO SMITH

Respondent:    DJ SMITH

Respondent:    JO SMITH

Respondent:    PA SMITH

Respondent:    JULIE RESCHKE

Respondent:    ROY DRIVER

Respondent:    EPIC ENERGY SOUTH AUSTRALIA PTY LTD

Respondent:    SOUTH AUSTRALIAN APIARISTS ASSOCIATION INC

Respondent:    TELSTRA CORPORATION LIMITED

Respondent:    SA POWER NETWORKS (FORMERLY KNOW AS ETSA UTILITIES)

Respondent:    DISTRICT COUNCIL OF PETERBOROUGH

Respondent:    AJ & PA MCBRIDE LIMITED

Respondent:    BOSS URANIUM PTY LTD

Respondent:    WILLIAM CRAWFORD

Respondent:    BILLEROO WEST PTY LTD

Respondent:    BUSH HERITAGE AUSTRALIA

Respondent:    BENAGERIE GOLD AND COPPER PTY LTD

Respondent:    YARRAMBA PASTORAL PTY LTD

Respondent:    KALKAROO PASTORAL CO PTY LTD