FEDERAL COURT OF AUSTRALIA Franks and Lester for the Plains Clans of the Wonnarua People v National Native Title Tribunal [2011] FCA 1530 Citation: Franks and Lester for the Plains Clans of the Wonnarua People v National Native Title Tribunal [2011] FCA 1530 Appeal from: Application for extension of time: White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd and ICRA Ashton Pty Ltd (grantee party) and Scott Franks and Robert Lester on behalf of the Plains Clans of the Wonnarua People (native title party) and State of New South Wales (government party) [2011] NNTTA 72 Parties: SCOTT MCCAIN FRANKS AND ROBERT JOHN LESTER FOR THE PLAINS CLANS OF THE WONNARUA PEOPLE v NATIONAL NATIVE TITLE TRIBUNAL, JOHN SOSSO, STATE OF NEW SOUTH WALES and WHITE MINING (NSW) PTY LTD ACN 089 414 595, AUSTRAL-ASIA COAL HOLDINGS PTY LTD ACN 113 038 663 AND ICRA ASHTON PTY LTD ACN 097 499 780 File number(s): NSD 1215 of 2011 Judge: JAGOT J Date of judgment: 19 December 2011 Catchwords: NATIVE TITLE – application for extension of time to appeal from decision of National Native Title Tribunal – where no acceptable explanation of delay in bringing application Legislation: Native Title Act 1993 (Cth) ss 151, 169 Cases cited: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd and ICRA Ashton Pty Ltd (grantee party) and Scott Franks and Robert Lester on behalf of the Plains Clans of the Wonnarua People (native title party) and State of New South Wales (government party) [2011] NNTTA 72 (28 April 2011) Date of hearing: 19 December 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: Mr I G A Archibald Solicitor for the Applicant: Eddy Neumann Lawyers Solicitor for the First Respondent: The First Respondent filed a submitting appearance Solicitor for the Second Respondent: The Second Respondent filed a submitting appearance Counsel for the Third Respondent: Mr H El-Hage Solicitor for the Third Respondent: Crown Solicitor for New South Wales Counsel for the Fourth Respondent: Mr S Lloyd SC with Mr C R Ireland Solicitor for the Fourth Respondent: McCullough Robertson Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1215 of 2011 BETWEEN: SCOTT MCCAIN FRANKS AND ROBERT JOHN LESTER FOR THE PLAINS CLANS OF THE WONNARUA PEOPLE Applicant AND: NATIONAL NATIVE TITLE TRIBUNAL First Respondent JOHN SOSSO Second Respondent STATE OF NEW SOUTH WALES Third Respondent WHITE MINING (NSW) PTY LTD ACN 089 414 595, AUSTRAL-ASIA COAL HOLDINGS PTY LTD ACN 113 038 663 AND ICRA ASHTON PTY LTD ACN 097 499 780 Fourth Respondent JUDGE: JAGOT J DATE OF ORDER: 19 DECEMBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Paragraph 2 of the interlocutory application filed 13 September 2011 be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1215 of 2011 BETWEEN: SCOTT MCCAIN FRANKS AND ROBERT JOHN LESTER FOR THE PLAINS CLANS OF THE WONNARUA PEOPLE Applicant AND: NATIONAL NATIVE TITLE TRIBUNAL First Respondent JOHN SOSSO Second Respondent STATE OF NEW SOUTH WALES Third Respondent WHITE MINING (NSW) PTY LTD ACN 089 414 595, AUSTRAL-ASIA COAL HOLDINGS PTY LTD ACN 113 038 663 AND ICRA ASHTON PTY LTD ACN 097 499 780 Fourth Respondent JUDGE: JAGOT J DATE: 19 DECEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This interlocutory application, filed on or about 13 September 2011, seeks (relevantly) an extension of time for the filing of a notice of appeal in relation to a decision of the National Native Title Tribunal (the Tribunal). 2 The decision in question is set out in a record of directions made by the Tribunal on 5 April 2011. On that day the Deputy President of the Tribunal, Mr Sosso, issued directions bearing the Tribunal's seal which included direction 3 as follows: The Tribunal shall determine the question whether the grantee party has negotiated in good faith on the papers (s. 151(2)(b)). 3 Section 151(2)(b) of the Native Title Act 1993 (Cth) (the Native Title Act) provides as follows: (2) The Tribunal may: (a) … (b) make a determination in relation to a right to negotiate application; by considering, without holding a hearing, the documents or other material lodged with or provided to the Tribunal. However, the Tribunal must hold a hearing if it appears to the Tribunal that the issues for determination cannot be adequately determined in the absence of the parties. 4 Once the Tribunal decided to determine the question whether the grantee parties had negotiated in good faith on the papers, any party to the inquiry relating to the right to negotiate application which was before the Tribunal had the right to appeal to this Court on a question of law from that decision (s 169(1) of the Native Title Act). Any appeal was to be instituted (relevantly) within the period of 28 days starting on the day on which the decision of the Tribunal was given to the relevant person, or within such further time as this Court (whether before or after the end of that period) allows (s 169(4)(a) of the Native Title Act). 5 The applicant in this proceeding did not appeal to this Court within the 28-day period. Rather, as noted above, the present application seeking an extension of time to appeal the decision of the Tribunal was filed on or about 13 September 2011, some three and a half to four months after the expiry of the statutory period. It follows that, in order to maintain the appeal, the applicant requires an extension of time as provided for by s 169(4)(a) of the Native Title Act. 6 The appeal the applicant seeks to file identifies the following question of law: Whether in making [its decision of 28 April 2011] the Tribunal erred in law in determining that the grantee party has fulfilled its obligation to negotiate in good faith as required by section 31(1)(b) of the Native Title Act 1993 and that the Tribunal has power to conduct an inquiry and make a determination pursuant to section 38 of that Act. 7 The present application seeks that the time for the filing of an appeal be extended to 12 October 2011; however, given the date of today's hearing, it would clearly be necessary for the extension to be granted until at least today (if not slightly later). 8 The ground of appeal relied on is that, on 5 April 2011, the Tribunal failed to identify and consider properly, or at all, the applicant's case as to why the Tribunal should conduct a hearing rather than making a determination on the basis of the documents or other material lodged with or provided to the Tribunal. Particulars of this ground are provided in the following terms: The Tribunal failed to correctly identify and consider the case put by the representative of the applicants as to the reasons the representative wished to cross-examine the witnesses for the grantee party and why the Tribunal should hold a hearing. 9 This allegation of error of law on the part of the Tribunal comes down to a point which may be summarised as follows. 10 In his affidavit sworn on 28 October 2011 Mr Neumann, the solicitor for the applicant at that time, deposed as follows: On 5 April 2011 I attended the above directions hearing in relation to the issue of whether the negotiations occurred in good faith. During the directions hearing I said to the NNTT "the reason the applicants seek a formal hearing is to allow the cross-examination of the principal archaeologist, Ms Angela Bessant and in relation to the authority given by the Grantee party for the good faith negotiations." 11 However, in reasons for decision published on 28 April 2011 (White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd and ICRA Ashton Pty Ltd (grantee party) and Scott Franks and Robert Lester on behalf of the Plains Clans of the Wonnarua People (native title party) and State of New South Wales (government party) [2011] NNTTA 72 (28 April 2011)), the Tribunal gave the following account of the directions hearing (the purpose of which was "to hear from the parties and determine whether a hearing was required" under s 151(2) of the Native Title Act): [16] At the Directions Hearing of 5 April 2011 Mr Neumann outlined the reasons for seeking a hearing on the issue of good faith rather than proceeding by a determination "on the papers". Essentially two reasons were advanced by Mr Neumann. First, he wished to cross-examine some of the persons who had provided affidavit evidence in support of the grantee party on the issue of the extent of their authority to negotiate. The second related to the fact that, in his submission, some of the material submitted by the grantee party was hearsay and therefore inadmissible. He specifically denied that the purpose of the cross-examination related to issues of credibility of witnesses. [17] On the question of the admissibility of evidence, Mr Neumann was referred to s 109(3), which provides that the Tribunal is not bound by the rules of evidence, nonetheless the weight that will be accorded evidence submitted will invariably be guided to [sic] the general principles of the law of evidence. [18] On the question of the authority of the negotiators, it became clear than any issues that Mr Neumann wished to explore could be done [sic] by providing the native title party with an opportunity to make submissions on the material already before the Tribunal. Accordingly, the Directions were amended to enable the native title party to provide to the Tribunal and the other parties by 8 April 2011 further submissions on the good faith issue. Further, the government and grantee parties were granted an opportunity to reply by 12 April 2011. [19] I was satisfied that, subject to granting this further opportunity for making submissions, the Tribunal was in a position to make a determination on the papers and that holding a formal hearing was not necessary, as the issues for determination could be adequately dealt with in the absence of the parties. 12 According to the applicant, the error of law was that the Tribunal mischaracterised the submission put by Mr Neumann in support of his application for cross-examination by limiting it to questions of authority to negotiate and inadmissibility when in fact the request had been broader in that it extended to cross-examining the principal archaeologist, Ms Angela Bessant. According to the applicant (relying on the decision of Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42]) it was an error of law for the Tribunal not to consider all the claims which Mr Neumann made, and accordingly the Tribunal, as I understand the applicant's submission, failed to exercise its jurisdiction as required by law in accordance with s 151(2) of the Native Title Act. 13 The considerations relevant to an application for an extension of time were conveniently summarised in the decision of Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (Hunter Valley Developments) at 348-349 in the following terms: 1. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so. The "prescribed period" of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v Aboriginal Development Commission (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time (Duff [v Freijah (1982) 62 FLR 280] at 485; Chapman v Reilly (unreported, Federal Court of Australia, Neaves J, December 1983) at 7). 2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 FCR 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 47 ALR 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 ALR 528. 3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534. 4. However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude (Lucic, Hickey). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application. 5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6. 6. Considerations of fairness as between the applicants and the other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion: Wedesweiller at 534-535. 14 I will deal with each of these relevant considerations in the order in which they appear. 15 The first consideration is that there should be some form of acceptable explanation of the delay. In this case, as noted above, the delay is relatively lengthy, being in the order of three and a half to four months. The applicant relied on an affidavit of Mr Neumann sworn 16 December 2011 which indicates that his firm ceased to act for the applicant on or about 24 June 2011; that Mr Neumann was badly injured in a motor vehicle accident on 18 August 2011, resulting in his hospitalisation until 11 October 2011; that he recommenced acting for the applicant on or about 19 August 2011 for the applicant; and that immediately upon receiving advice from Counsel and instructions from the applicant he sought leave to appeal in relation to the decision of 5 April 2011. 16 The difficulty for the applicant is that the 28-day statutory period in fact expired before Mr Neumann's firm ceased to act for the applicant on or about 24 June 2011 (the date on which the Tribunal handed down its decision that the future act consisting of the grant of Mining Lease Application 351 to the grantee party may be done). Thus, at best, Mr Neumann's affidavit explains delay by the applicant after 24 June 2011 but does not in any way explain the delay up until that date. Accordingly, I am not satisfied that there has been any real explanation for the applicant's delay. 17 In terms of the second consideration identified as relevant, the applicant did not take any step to make it plain that it was contesting the decision of 5 April 2011 until at least the filing of the present interlocutory application on or about 13 September 2011. To the contrary, it appears that the applicant continued to be involved in all of the processes before the Tribunal up until the decision of 24 June 2011 and thereafter. In this sense not only the original decision-maker (being the Tribunal), but also the other parties to the relevant proceedings, were led to believe that the issue as determined on 5 April 2011 had been resolved. 18 The third consideration identified in Hunter Valley Developments is whether there is any prejudice to any other party occasioned by the applicant's delay. In this case there is evidence of real prejudice to the fourth respondents in the form of the affidavit of Mr Brian Wesley of 30 September 2011. Mr Wesley is the general manager for the Ashton Coal Project, which is the project relevant to the mining lease application which was the subject of the right to negotiate procedures before the Tribunal. According to Mr Wesley's evidence, which has not been challenged for this purpose, on and from 26 May 2011 (which he calculated as the expiry of the 28-day period) Ashton Coal Operations Pty Limited (ACOL), being the manager of the Ashton Coal Project, has acted on the assumption that the "good faith" dispute had been resolved. As a consequence, ACOL continued to progress the future act determination application without undertaking any further negotiations. It also planned and made decisions on the basis of the assumed resolution. According to Mr Wesley, these decisions included a number of "major commercial and strategic decisions" including: (a) the decision to retain a significant proportion of the existing open cut workforce in circumstances where employees were not fully and gainfully employed and in which ACOL derived minimal benefits, apart from the retention of a workforce that would be available for future gainful activity…; (b) the decision to incur costs for equipment overhauls, to a total value in the order of $140,000; and (c) the decision to incur [additional] project costs… estimate[d]… to be in the order of $1,900,000 since 30 April 2011… 19 According to Mr Wesley, if the applicant had filed its appeal in a timely fashion ACOL would have reviewed these commercial and operational decisions and may have deferred decisions and expenditure to take account of possible or likely delays and uncertainty. 20 While it is true that Mr Wesley's affidavit does not point to any particular decision as being wholly dependent upon the delay by the applicant, it nevertheless establishes that the delay meant that ACOL assumed a particular state of affairs existed in relation (at least) to the decision of 5 April 2011, and that this was a relevant consideration in ACOL's decision-making processes. In any event, as the fourth consideration in Hunter Valley Developments establishes, the mere absence of prejudice is not itself sufficient to justify the grant of an extension of time. 21 The fifth consideration concerns the merits of the substantive application. As I indicated during oral argument, for the purposes of this application I am prepared to accept Mr Neumann's thus far unchallenged evidence that at the hearing on 5 April 2011 he said to the Tribunal words to the effect that "the reason the applicants seek a formal hearing is to allow the cross-examination of the principal archaeologist, Ms Angela Bessant and in relation to the authority given by the grantee party for the good faith negotiations." However, as has been put to me by Mr Lloyd of Senior Counsel on behalf of the fourth respondents, there is no indication in Mr Neumann's affidavit of when he said this or, more importantly, of what occurred after he did so. Furthermore, there is other evidence before me which strongly indicates that while Mr Neumann may well have made a general assertion that cross-examination was necessary in his client's interests at some point during the proceedings on 5 April 2011, the Tribunal (as one would have expected) conducted a lengthy discussion with the parties in order to ascertain precisely why Mr Neumann thought this was the case and ultimately, having heard all the submissions on behalf of all interested parties, made a determination that a hearing was unnecessary having regard to the terms of s 151(2) of the Native Title Act. It is therefore difficult, given the totality of the evidence, to accept that the applicant has a particular weighty case even on the facts as presented. Again, even if it is assumed in the applicant's favour that Mr Neumann at all times maintained the generality of the case he put for cross-examination, the Tribunal was in no way bound to accept that submission. 22 At its highest, then, the applicant's case seems to be based upon some alleged disjunction between the nature of the case for cross-examination put by Mr Neumann and the Tribunal's description of his position at [16]-[18] of the reasons published on 28 April 2011. As Mr Lloyd has submitted, it is difficult to accept that this gives rise to any question of law. In my view, what is framed as a question of law in the applicant's proposed notice of appeal (set out above) is no question of law at all and is certainly not a question of law upon which it could be said that the Tribunal's decision of 5 April 2011 depended. Given that the identification of a question of law is the foundation of the Court's jurisdiction on appeal, it cannot be said that the applicant has persuaded me that its case, even taken at its highest, is particularly meritorious. 23 The sixth consideration identified in Hunter Valley Developments is that of fairness as between the applicant and other persons otherwise in a like position. As noted, the delay by the applicant in this case is not insubstantial, and the applicant has put forward neither an adequate explanation for it nor any other reason in support of an exercise of discretion in its favour (other than the argument that the appeal has substantial merit). Even if this is assumed in the applicant's favour, however, the length of the relevant delay, combined with the absence of any acceptable explanation in the circumstances of the case, is in my view sufficient to found a conclusion that no extension of time should be granted. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 17 January 2012