Griffiths, White & Mortimer JJ
This matter was remitted by the High Court (Northern Land Council v Quall [2020] HCA 33), and concerned an appeal from Quall v Northern Land Council [2018] FCA 989. The issue was whether the Northern Land Council (NLC) had properly delegated their certificate function under s 203BE(1)(b) of the Native Title Act 1993 (Cth) (NTA) to their Chief Executive Officer (CEO). The appeal was allowed, the Court finding that the delegation was proper. Consequently it was held that the Kenbi Indigenous Land Use Agreement (ILUA) had been properly certified by the CEO. The NLC was the appellant in the matter, Mr Quall responded and the Northern Territory also provided submissions.
Background
The Kenbi ILUA covers an area of land and waters in the Cox Peninsula, Darwin. The NLC’s CEO certified and made an application to register the ILUA in 2017. and also Mr Fejo, were Larrakia Elders Kenbi ILUA. In response, Mr Quall argued that the ILUA certification function was not delegable or, alternatively, that it had not been duly delegated to the CEO. At trial, the NLC relied on a 1996 resolution to prove that the CEO had been conferred with the function as a delegate. This resolution was found not to have effectively delegated the function. The appeal heard by the Full Federal Court and High Court concerned whether the function could be delegated. The High Court held that delegation was indeed legislatively permissible. The specific determination of whether the NLC had delegated the function to its CEO was left for resolution in this matter.
The NLC applied to rely on fresh evidence to support their appeal: a resolution made in 2001 by the NLC board and an affidavit. The 2001 instrument explicitly confers numerous functions on the CEO, including s 203BE(1)(b) of the NTA. The affidavit supported the NLC’s contention that the newer resolution was not discovered before the primary trial as NLC staff were unaware of its existence.
Issues
The Court considered two key issues:
(1) Should leave be granted for the NLC to adduce this evidence (a discretionary power under s 27 of the Federal Court of Australia Act 1976 (Cth))?
(2) Did the NLC properly delegate its function under s 203BE(1)(b) of the NTA to its CEO?
Submissions
NLC
The NLC contended that leave should be granted as the fresh evidence was directly relevant to the main issue; it would ensure the decision was concluded with finality; if the evidence was available at trial, the outcome would have differed; and there was a public interest to admit the evidence given it relates to the registration of an ILUA.
Mr Quall
Mr Quall argued that the NLC did not provide any reason why their archive was not searched prior to trial; the NLC would have known of the resolution; the evidence did not prove considered delegation; the NLC was seeking to raise a new issue and should have, alternatively, either re-certified the ILUA or re-opened the trial.
The Northern Territory
The Northern Territory, as an intervener, broadly supported the NLC’s contentions. It highlighted that the evidence would have produced a different outcome at trial, and the rights of third parties and the public would be adversely affected if the evidence was not admitted. The latter submission related to the long history of land rights issues over the Cox Peninsula. The Kenbi ILUA would protect interests and the importance of its registration was argued.
Decision
White and Griffiths JJ
The court found that the NLC’s initial failure to rely on the 2001 resolution was not deliberate. Checking NLC’s data base was not accepted as ‘usual’ practice for legal representatives and NLC staff were not found to have acted unreasonably but were merely inadvertent. The 2001 resolution was deemed significant, with their Honours agreeing it would have produced a different outcome at trial given the clear delegation and its relevance to a principle issue. Adducing the evidence would also dispose of the appeal. The NLC applying for leave to adduce the evidence was also seen to be reasonable. Leave was granted by White and Griffiths JJ and the due delegation of the NLC’s function was found evident in the 2001 resolution, validating the CEO’s act in 2017 to certify the ILUA for registration.
Mortimer JJ
Mortimer J also accepted that leave should be granted to adduce the affidavit and 2001 resolution, but expressed reservations. Her Honour’s hesitance was due to: (1) the primary judge’s decision was made on an incorrect basis due to the NLC’s failure, leading to concerns about the finality of decisions, (2) the prejudice to the respondents associated with allowing the evidence to be admitted. Despite this, Mortimer J accepted the 2001 resolution showed due and considered delegation of the s 203BE(1)(b) delegation function to the CEO. Her Honour partially agreed with the respondents, but rejected their contentions that the NLC was raising a new argument or should have pursued an alternative course - applying for leave was the most open and cost effective method. Ultimately, Mortimer J reached the same conclusion as White and Griffiths JJ and allowed the appeal.