Rares, Robertson and Perry JJ
The Court made orders dismissing the applicant’s interlocutory application made on 23 May 2019. The court also ordered the appellants to pay the respondents’ costs.
Interlocutory Application
The appellants applied on the 23 May 2019 to amend their notice of appeal, and as a consequence, the fourth further amended statement of claim in light of the Full Court’s decision on 20 May 2019 in Northern Land Council v Quall [2019] FCAFC 77 (‘Quall’).
During the pleadings the appellants had admitted that the chief executive officer had acted with Queensland South Native Title Service’s authority. However, the appellants now argued that the recent decision in Quall raised a point of principle that could affect the result in this appeal. They submitted that were was now a real question whether the chief executive officer of Queensland South Native Title Services could give a certificate of that company’s opinion under s 203BE(5) of the Native Title Act 1993 (Cth) as to whether all reasonable efforts had been made to identify the persons who hold or may hold native title in relation to land or waters in the area to be covered by an Indigenous Land Use Agreement (ILUA). The appellants argued that an outcome of Quall was that under the NTA only the board of the representative body (i.e. Queensland South) could exercise the certification function for registration of an ILUA, not the chief executive officer.
Secondly, the appellants argued that the new facts were not in evidence at trial and were within a limited compass. However, the first respondent submitted that they did not have the opportunity to cross-examine the chief executive officer on the new facts. Queensland South also expressed their wish to tender its constitution and would need to consider a range of other material to determine what other evidence it would want to lead.
Thirdly, the appellants argued that notwithstanding Quall, if Queensland South had conferred authority on its chief executive officer to give the certificate, and the authority was treated as validly conferred in the appeal, the consequence could, or would, possibly impact on third parties. The Court noted that the appellants were unable to elaborate in any great detail about what that impact might be (at para [4]).
Court’s reasoning
In its reasoning, the Court argued that there was the possibility of the future application of Quall to similar situations as was present here. However, they held it was unreasonable to use this case in these circumstances as there was limited time available for the parties to understand the implications of Quall and utilise them into their arguments. Further, the appellants did not explain why they had not run this point at trial, instead accepting that the chief executive officer had authority to give the certificate (at para [6]).
Finally, the Court held that the present application was indistinguishable from Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. In Coulton, the Court held that it “is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial”.
In this case, the Court held that there was no doubt that ‘the issues which the appellants seek to agitate by the amendments are of public importance and affect the rights not only of the parties to the proceedings, but the public generally’ (at para [8]). This is due to the fact that registration of an ILUA after a certification by a representative body had an effect in rem on the land and waters subject to the ILUA. However, the Court was not satisfied that the appellants distinguished the situation from that in Coulton, namely that the ‘parties were bound by the way in which they conducted their case at the trial and it would not be in the interests of justice, or fair to the respondents to the appeal, to subject the respondents at this stage of the proceeding to what might be a wider trial of a larger issue’.