SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / Mortimer v Auswide Services Ltd T/as Caloola Farm (InLiquidation)Citation: / [2016] ACTSC 282
Hearing Dates: / 16 August 2016 and 16 September 2016
DecisionDate:
Reasons Date: / 16 September 2016
6 October 2016
Before: / Refshauge ACJ
Decision: /
- Gary Robert Caines’ request to be substituted as the plaintiff in the case be rejected.
- Shane John Mortimer be granted leave to discontinue the proceedings.
- Shane John Mortimer be granted leave to file in Court a Notice of Discontinuance.
- Shane John Mortimer be ordered to pay the defendant’s costs.
Catchwords: / ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – NATIVETITLE – Land rights – recognition – jurisdiction
REAL PROPERTY – GENERAL PRINCIPLES – Acquisition of sovereignty – fee simple – extinguishment – Crown leaseholder – jurisdiction
CORPORATIONS – WINDING UP – Liquidation – interim injunction to restrain property sale dissolved
COSTS – GENERAL PRINCIPLES – Notice of Discontinuance – consideration – impecuniouslitigant – public interest litigation – special costs order –r 1163 of the Court Procedure Rules 2006 (ACT)
Legislation Cited: / Australian Constitution, ss 75, 75(iii)
Corporations Act 2001 (Cth), s 471B
Court Procedures Act 2004 (ACT), s15
Judiciary Act 1903 (Cth), s 30
Court Procedures Rules 2006 (ACT), r1163
Cases Cited: / Abraham v Thompson [1997] 4 All ER 362
ACT Fire Brigade v Nester [2004] ACTSC 125
BZAS of 2004 vMinister for Immigration [2005] FMCA 464
City Hill Pty Ltd v ACT Planning and Land Authority (2015) 207 LGERA 48
Cowell v Taylor (1885) 31 Ch D 34
Cross v Beaumont (2008) 39Fam LR 389
Fejo v Northern Territory (1998) 195 CLR 96
Jacka v Australian Capital Territory [2015] ACTSC 239
Mabo vQueensland(No2) (1992) 175 CLR 1
Oshlack vRichmond River Council (1998) 193 CLR 72
Rutledge v Victoria (2013) 251 CLR 457
Scott v Pedler [2003] FCA 650
Tzavellas v Canterbury City Council (1999) 105 LGERA 262
Wik Peoples v Queensland (1996) 187 CLR 1
Texts Cited: / Civil Procedure ACT (LexisNexis Butterworths, Sydney, 1994)(at service 113) [1163.5]
Gary Lilienthal and Nehaludalin Ahmad, “Constructive Adverse Possession of Allodial Title: Mere Colour of Title?” (unpublished)
Plutarch, Plutarch’s Lives Volume 1 (John Dryden trans, 1683; Arthur Clough trans, 1859) Theseus [trans of: Βίοι Παράλληλο (written second century A.D.)
Parties: / Shane John Mortimer (Plaintiff)
Auswide Services Ltd T/as Caloola Farm (In Liquidation)
(Respondent)
Representation: / Counsel
No appearance(Plaintiff)
Mr J Moffett (Defendant)
Mr S Whybrow (Defendant)
Solicitors
Self-represented (Plaintiff)
Grace Lawyers(Defendant)
File Number: / SC136of 2016
REFSHAUGE ACJ:
1.On 18 April 2016, Shane John Mortimer, commenced proceedings against Auswide Services Limited, trading as Caloola Farm, seeking to prevent it from selling certain property in the ACT and “to reinstate the said property to the original common law native title holder”, which he said he was.
2.On 6 May 2016, I made an interim injunction to restrain the sale until Mr Mortimer, who was a litigant in person, had an opportunity to obtain legal advice.
3.I further adjourned the proceedings to allow a hearing of an application by the defendant to strike out the proceedings, which had been foreshadowed by counsel for the defendant.
4.It appeared later in the proceedings that the defendant company had been placed into liquidation on 19 December 2014 and the liquidator appeared to defend the proceedings. The liquidator, who appeared to be instructing counsel for the defendant, did not draw my attention to s 471B of the Corporations Act2001 (Cth) which requires that proceedings against a company, in relation to the property of the company, be stayed and may only proceed with leave of the Court. No such leave was sought or granted so far as I was aware.
5.Accordingly, I further heard the proceedings. It may be that, given the need to enjoin an imminent sale, leave would have readily been given, at least in the short term, to permit a consideration of the injunction. These were just some of the problems of a technical legal kind that confronted Mr Mortimer in the proceedings.
6.At my urging, Mr Mortimer obtained pro bono legal assistance,apparentlythrough the valuable and important pro bono scheme operated by the ACT Law Society.
7.Accordingly, at a later directions hearing, Mr Mortimer appeared represented by counsel. I continued the injunction and made orders for preparation of the matter for hearing. That hearing would have addressed an application by Mr Mortimer to amend the Originating Application, which the defendant opposed, preparatory to striking out the claim.
8.That amendment, whilestill seeking to stop the sale, abandoned the claim for “reinstatement” of the property to Mr Mortimer as the claimed “original common law native title holder” and pleaded, instead, relief for misleading or deceptive conduct in the proposed sale process.
9.Apparently, Mr Mortimer had not appreciated this latter aspect of the approach taken by his pro bono legal representatives and this became the source of a fundamental disagreement between them. As a result, I granted leave for his legal representatives to withdraw.
10.It became clear that Mr Mortimer was not primarily interested in preventing the sale of the land by the defendant so much as in a challenge to the system of land title itself; that is to say, he wanted the Court to make appropriate orders that no-one apart from the traditional Indigenous custodians of the land were entitled to the ownership of the land and that all the land belonged to them.
11.This, of course, would be in conflict with the decision of the High Court in Mabo vQueensland(No2) (1992) 175 CLR 1. This is particularly so since the defendant’s evidence showed that the government of New South Wales granted the subject land in fee simple to one Michael Cotter on 15 June 1928. This would, under present law, defeat any native title to the land: Mabo v Queensland (No 2) at 68, 89, 110, 195; Wik Peoples v Queensland (1996) 187 CLR 1 at 84; Fejo v Northern Territory (1998) 195CLR 96 at 126-7, 151.
12.This Court has no legal authority to override those decisions, nor to act contrary to them. I initially considered, however, that Mr Mortimer may, in fairness, be permitted to use the proceedings to proceed to challenge that decision through the appellate process to the High Court, if he wished to do so.
13.Thus, for example, a litigant may wish to seek a reconsideration or a modification of a decision of the High Court, the final court of appeal in the Australian justice system. While that would usually most appropriately be done by commencing proceedings in the High Court, there may be barriers to that.For example, the High Court’s original jurisdiction is limited under s 75 of the Australian Constitution and s 30 of the Judiciary Act 1903 (Cth).
14.Such a challenge would, however, require a radical restructure of the proceedings; in particular, he would have to join at least the ACT government and probably the Commonwealth in the proceedings and the current defendant should probably be released from the proceedings.
15.Were Mr Mortimer to join the Commonwealth, then the High Court would have original jurisdiction to hear the proceedings: s 75(iii) of the Australian Constitution.
16.There may, however, be factual matters that needed to be decided in the proceedings. It may well be more appropriate to have those determined in a trial court, such as this Court, before the matter then reaches the High Court. In that case, it would reach the High Court through the appellate process. The lower courts, such as this Court, would, of course, be bound by the law as decided by the High Court, though MrMortimer may have been able to distinguish what the High Court had held. We did not get as far as needing to consider that in these proceedings.
17.Given that Mr Mortimer was no longer in reality concerned with the actual sale by the defendant so much as challenging the right to the land of any person other than a traditional Indigenous custodian, whether seller or prospective buyer, it was also appropriate that the injunction be dissolved. I dissolved the injunction but gave MrMortimer time to consider his position.
18.Mr Mortimer then advised that he wished to discontinue the proceedings and I give him that leave insofar as it was necessary. He has filed a Notice of Discontinuance.
19.Ordinarily, a plaintiff who discontinues proceedings must pay the costs of the defendant as well as bear his, her or its costs: r1163 of the Court Procedures Rules 2006 (ACT).
20.Mr Mortimer, however, sought an order that each party pay their own costs. He indicated that he was impecunious and that an order for costs against him would be futile.
21.There is set out inCivil Procedure ACT(LexisNexis Butterworths, Sydney, 1994)(atservice 113) [1163.5] a number of matters a court needs to consider when deciding whether to exercise a discretion as to costs on discontinuance by leave.
22.I have noted above (at [10]), that it seemed to me that Mr Mortimer’s primary concern was not with the defendant’s sale so much as asserting a primary right he said he had as a common law native title holder to ownership of the land itself, contrary to Australian law that vested the land in the Commonwealth. See City Hill Pty Ltd vACTPlanning andLand Authority (2015) 207 LGERA 48 at 53; [1].
23.Indeed, Mr Mortimer suggested that the Australian Constitution, which he acknowledged was the basis of Australian law, was an invalid document because it had not been signed by the Queen. That has clear echoes of the arguments that were decisively rejected by the High Court in Rutledge v Victoria (2013) 251 CLR 457.
24.As to the fact that Mr Mortimer is impecunious, it is important to give proper deference to the rule of great importance and longstanding that poverty is no bar to a litigant. As Bowen LJ said in Cowell v Taylor (1885) 31 Ch D 34 at 38, that general rule “from time immemorial has been the rule at common law, and also, I believe, in equity”.
25.While that is a basis for declining to order security for costs against an impecunious individual plaintiff (Abraham v Thompson [1997] 4 All ER 362 at 377), that does not necessarily translate to a rule, or even a predisposition that an impecunious unsuccessful litigant should not be ordered to pay the successful party’s costs. See Tzavellas v Canterbury City Council (1999) 105 LGERA 262 at 264; [8].
26.As Gray ACJ said in Scott v Pedler [2003] FCA 650 at [99], “[p]overty is not necessarily a ground for refraining from making an order for costs”. See also BZAS of 2004 vMinister for Immigration [2005] FMCA 464 at [11] and Cross v Beaumont (2008)39Fam LR 389 at 402; [60].
27.Indeed, this Court has held that the fact that an order for costs would be onerous is not, of itself, a factor to be taken into consideration if costs are otherwise appropriately payable: ACT Fire Brigade v Nester [2004] ACTSC 125 at [41].
28.I appreciate that, while the fact that impecunious plaintiffs will not ordinarily be required to provide security for costs does reinforce the general principle to which BowenLJ referred, the risk of an order for costs if a party is unsuccessful may be a significant deterrent and undermine the general principle to which his Lordship referred. Nevertheless, that does seem to be the law.
29.In this case, the defendant has been brought into litigation where it now appears that its proposed sale is not the real object of proceedings, which have a much wider focus that would be more appropriately directed towards not an individual Crown leaseholder but the government, because of the generality of the issue.
30.Accordingly, there is no real reason why the usual rule should not apply, namely that, on discontinuance, the plaintiff should pay the defendant’s costs.
31.As Mr Mortimer is not legally represented, I do need to consider any reasonable matters he could properly raise but which he has not raised. I have, therefore, considered whether this was a test case, which would justify another costs order.
32.I have considered whether Mr Mortimer’s claim could be considered to be public interest litigation so as to attract special consideration as to costs.
33.I have recently considered this issue in Jacka v Australian Capital Territory [2015] ACTSC 239, where I considered some of the issues involved in such cases. I referred at [19] to the factors identified by the majority in the High Court decision ofOshlack vRichmond River Council (1998) 193 CLR 72.
34.Having reviewed those decisions, I am not satisfied that this litigation should be considered public interest litigation attracting a special order for costs.
35.Finally, another Indigenous elder, Gary Robert Caines, sought to be substituted as plaintiff for Mr Mortimer were I to be prepared to grant leave for Mr Mortimer to discontinue the proceedings.
36.Mr Caines was also interested in the conduct of the proceedings for the purpose of vindicating and establishing what he described as “allodial title” in the subject land. See Gary Lilienthal and Nehaludalin Ahmad, “Constructive Adverse Possession ofAllodial Title: Mere Colour of Title?” (unpublished).
37.Mr Caines expressly disavowed any intention of seeking to eject the current occupants of the subject land; his intent was to establish his and his peoples’ interests in the land.
38.I considered that there was no benefit in maintaining the present proceedings.
39.The only disadvantage to Mr Caines, were he required to commence his own proceedings, would be that he may have to pay a filing fee. That, however, may be waived under s15 of the Court Procedures Act 2004 (ACT) if Mr Caines is able to satisfy the Registrar that he should not have to pay such a fee.
40.The disadvantages of maintaining the present proceedings are that there will be none of the original parties left; Mr Caines would be substituted for Mr Mortimer and MrCaines would be required to apply to have an appropriate government joined and the present defendant dismissed from the proceedings. This rather takes on the shape of the ship in Theseus’ Paradox. See Plutarch, Plutarch’s Lives Volume 1 (John Dryden trans, 1683; Arthur Clough trans, 1859),“Theseus” [trans of: Βίοι Παράλληλο (written second century A.D.).
41.Indeed, there may have to be a restructure of the pleadings in the proceedings and many of the affidavits would be irrelevant.
42.Mr Caines can commence fresh proceedings, properly constituted and seeking exactly the relief he seeks rather than what Mr Mortimer has sought. There are, so far as I can see, many issues of limitation periods that might impact adversely.
43.Accordingly, I gave Mr Mortimer leave to discontinue the proceedings and to file the Notice of Discontinuance, which he provided earlier. I ordered that he pay the defendant’s costs and I rejected MrCaines’ request to be substituted as plaintiff.
44.These are my reasons for making these orders.
I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.Associate:
Date: 6 October 2016
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