Shane John Mortimer(Plaintiff) v Auswide Services Ltd T/as Caloola Farm ((in Liquidation))

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Refshauge ACJ:
• Judgment Date: 06 October 2016
• Docket Number: File Number: SC 136 of 2016
• Date: 06 October 2016

Shane John Mortimer

(Plaintiff)

and

Auswide Services Ltd T/as Caloola Farm

(In Liquidation) (Respondent)

[2016] ACTCA 37

Before:

Refshauge ACJ

File Number: SC 136 of 2016

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES — NATIVE TITLE — 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 — impecunious litigant — public interest litigation — special costs order — r 1163 of the Court Procedure Rules 2006 (ACT)

Cases Cited:

Abraham v Thompson [1997] 4 All ER 362

ACT Fire Brigade v Nester [2004] ACTSC 125

BZAS of 2004 v Minister 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) 39 Fam LR 389

Fejo v Northern Territory (1998) 195 CLR 96

Jacka v Australian Capital Territory [2015] ACTSC 239

Mabo v Queensland (No 2) (1992) 175 CLR 1

Oshlack v Richmond 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

Legislation Cited:

Australian Constitution, ss 75, 75(iii)

Corporations Act 2001 (Cth), s 471B

Court Procedures Act 2004 (ACT), s 15. In the paragraph (Cth), s 30

Court Procedures Rules 2006 (ACT), r 1163

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 (unpublished)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: ß?? ? ?a??????? (written second century A.D.)

Representation:

Counsel

No appearance (Plaintiff)

Mr J Moffett (Defendant)

Mr S Whybrow (Defendant)

Decision:

• 1. Gary Robert Caines' request to be substituted as the plaintiff in the case be rejected.

• 2. Shane John Mortimer be granted leave to discontinue the proceedings.

• 3. Shane John Mortimer be granted leave to file in Court a Notice of Discontinuance.

• 4. Shane John Mortimer be ordered to pay the defendant's costs.

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 Act 2001 (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, apparently through 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, while still 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 v Queensland (No 2) (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) 195 CLR 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 Mr Mortimer may have been able to distinguish what the High Court had held. We did not get as far as needing to consider...