Charlie v Cape York Land Council Aboriginal Corporation & Ors [1997] QSC 191

( IN THE SUPREME COURT OF QUEENSLAND Application No.6 of 1997 Brisbane BETWEEN: AND: AND: AND: GORDON CHARLIE CAPE YORK LAND COUNCil- ABORIGINAL CORPORATION DESMOND ERNEST BOYLAND, EXECUTIVE DIRECTOR (CONSERVATION) QUEENSLAND DEPARTMENT OF ENVIRONMENT COOK SHIRE COUNCil- First Applicant Second Applicant First Respondent Second Respondent AND: CLYNDER PTY LTD (ACN 009 857 425) Third Respondent REASONS FOR JUDGMENT - MOYNIHAN J. Judgment delivered 7 October 1997 CATCHWORDS: ADMINISTRA TIVE LAW - applicant seeks leave to amend application for judicial review and statement of claim and for extension of time to pursue applications for' judicial review of two decisions. Counsel: S. Keirn for the applicants. S. Koppenol for the first respondent. P. Bickford for the second respondent. P. Flanagan for the third respondent. Solicitors: Phillips Fox for the applicant. Crown Solicitor for the first respondent. Macdonnells for the second respondent. Corrs Chambers Westgarth for the third respondent. Hearing Dates: 19 and 20 June 1997. -- 1 of 10 -- IN THE SUPREME COURT OF QUEENSLAND Application No.6 of 1997 Brisbane BETWEEN: AND: AND: AND: AND: GORDON CHARLIE CAPE YORK LAND COUNCIL ABORIGINAL CORPORATION DESMOND ERNEST BOYLAND, EXECUTIVE DIRECTOR (CONSERVATION) QUEENSLAND DEPARTMENT OF ENVIRONl\IENT COOK SHIRE COUNCIL First Applicant Second Applicant First Respondent Second Respondent CLYNDER PTY LTD (ACN 009857425) Third Respondent REASONS FOR JUDGMENT - MOYNmAN J. Judgment delivered 7 October 1997 On 9 May 1997 the applicants brought applications for judicial review of two decisions, one by the first respondent and one by the second. The applicants seek both statutory review pursuant to Part 3 of the Judicial Review Act 1991 ("the Act") and prerogative orders and injunctions pursuant to Part 5. The reviews are sought in respect of decisions bearing on the development ofland the subject of a sub-lease of Crown leasehold land to the third respondent. It is necessary for the applicants to obtain extensions of time in which to pursue the applications. There is also an application for leave to amend the application and the statement of claim -- 2 of 10 -- 2 delivered to support it. The decision of the second respondent ("the Council") is the first in time and was made on or about 8 February 1995. It involved the granting of town planning consent to the third respondent ("Clynder") to use the land it subleased for the purpose of a dwelling house and caretaker's cottage. The decision of the first respondent ("the Department") which is the subject of the second application was made on or about 11 February 1997 and involved the approval of the construction of a dwelling house and caretakers lodge by Clynder. Clynder's land is on Lizard Island and within the Council's planning responsibility. It is in a National Park administered by the Department; hence the necessity for the Department's approval. Clynder submits that the application for judicial review does not comply with 0.81 rA. I think the applicants' submission, particularly given the statement of claim, that the non- conformance is no more than an irregularity is correct. The application for leave to amend is otherwise essentially unopposed and I allow it. The amended statement of claim alleges to the effect that the first applicant ("Charlie") is an elder of the Dingaal people, the traditional owners of Lizard Island and its surrounding waters. It further alleges that the Dingaal people maintain a continuing spiritual and cultural connection with the land and its surrounding waters. The amended pleading goes on to the effect that the second applicant ("the Land Council") is a representative body pursuant to the Native Title Act 1993 (C'th) with functions to represent the rights and interests of the Dingaal people in respect of their title to land on Lizard Island and the surrounding waters. There are also allegations to the effect that the applicants have a special interest in the land comprising Clynder's sub-lease although little is pleaded to found them. I men~i~m these matters because it is submitted on behalf of Clynder that there is no sworn -- 3 of 10 -- 3 material which demonstrates that the applicants are persons whose interests are or would be adversely affected by the matter to which the application relates or whose interests are adversely affected by the decision; see ss.7(1) and 44 of the Act. The submission on Clynder's behalf is not without merit. There are very few facts, as distinct from assertions of a consequence, pleaded in the amended statement of claim to provide a basis for satisfying s.7 or s.44 and none of them are sworn to. It may be that the statutory criteria are narrower than the criteria for standing canvassed in cases such as ACF v. The Commomvealth 1; Onus v. Alcoa2 ; Australian Conservation Foundation v. Minister jor Resources 3; North Coast Environment Council Inc v. Minister jor Resources 4 and Tasmanian Conservation Trust Inc v. Minister jor Resources S which were cited by the applicants. It is, however, unnecessary to embark on a consideration of that question because it seems to me appropriate in the present circumstances to proceed on the basis that the statement of claim's claim contains (barely) allegations which, ifmade out, are capable of satisfying the provisions ss.7 and 44. It is also submitted on behalf of the Council that there is some doubt as to whether prerogative relief (certiorari) is the appropriate form of relief against it citing AinSHIorth & Anor v. CJC 6 and Craig v. The State oj South Australia 7. Those decisions need to be read in the light (1980) 146 CLR 493 2 (1981) 149 CLR27 3 (1989) 76 LGRA 200 4 (1994) 127 ALR617 (1995) 127 ALR 580 6 (1991-92) 175 CLR 564 7 (1994-95) 184 CLR 163 -- 4 of 10 -- 4 ofs.l0 oftheludicial Review Act and I do not propose determining this application on that basis particularly having regard to the limited effect of the determination. The respondent Department did not oppose.the granting of the applications for extension of time but the Council and Clynder do. The time limits for bringing the applications are to be found in s.26 (statutory review) and s.46 (prerogative review) of the Act respectively. So far as the Council's 1995 decision is concerned, the applicants' submissions proceeded on the basis that the time provided by s.26 for Charlie to bring his application for statutory review expired on or about 14 March 1995. This may be accepted as so. Subject to what is said later, the applicant Land Council does not appear to have received the documents setting out the terms of the Cook Shire's decision. As regards the time for the Land Council to bring an application subsections 26(3) and (4) are said to be applicable. These are relevant to the effect that if an application for statutory review was not made within a reasonable time after the decision is made the Court has a discretion to refuse to consider it. In exercising this discretion the Court is to have regard to the time at which an applicant became aware of the decision and where there is not a period prescribed for this applicant but there is a period prescribed for another person (here being Charlie) to make an application for statutory review it is to have regard to that period and to such other matters as it considers relevant. The submissions for the applicant were on the basis that the time limits for seeking prerogative review expired on or about 14 May 1995 and again it may be accepted that this was so. So far as the Department's 1997 decision is concerned no extension of time is necessary for prerogative review pursuant to Part 5. So far as the statutory review is concerned, once again the submissions on behalf of the applicants may be accepted; these were to the effect that the time limited for statutory review expired on 2 May 1997. Since the application was made on 9 May -- 5 of 10 -- 5 a short extension of time is necessary. I tum to consider the application for an extension of time in respect of the 1995 Council decision. It is convenient to do so in terms of the explanation for delay, the merits of the application and the consequences of an extension for particular parties and generally; see Kuku Djzmgan Aboriginal Corporation v. Christison 8. Clynder applied to the Cook Shire for town planning consent to use part of its sub-lease for a dwelling house and caretaker's cottage on 9 November 1994. By letter of21 November 1994 Charlie lodged an objection on behalf of the Dingaal people. The Council decided to grant the application subject to conditions on 8 February 1995 and advised Charlie and Clynder by letter dated 14 February. It is not clear when the Land Council became aware of the Cook Shire's decision but it may have been as a consequence of the receipt of a letter of 1 April 1997 on Charlie's behalf seeking funding for a judicial review challenging Clynder's proposed development of the land the subject of its sub-lease. In an affidavit filed 10 June 1997 and directed to explaining Charlie's delay in bringing the application in respect of the Council decision, Peter Poynton deposes that Charlie is an elder of the Dingaal people, lives in a remote Aboriginal community with no local legal services and has a very limited understanding oflegal processes. The applicants' own material demonstrates that this is somewhat disingenuous. Poynton is a barrister who was a legal research officer employed by an Aboriginal legal service corporation from December 1994 to July 1995 and in that capacity acted for Charlie in relation to a number of matters the details of which are undisclosed. It is clear that Poynton continued to be associated with Charlie after he ceased to be employed by the legal service corporation and inferentially that he has offered him advice bearing on the Council (1993) 2 Qd.R. 663 -- 6 of 10 -- 6 decision. As I have said, Charlie lodged an objection to Clynder's application. Poynton deposes that Charlie was aware from April 1995 that Clynder would have to obtain Departmental approval to proceed with its proposed development to which the town planning approval applied. In late 1996 he was instructed by Charlie to investigate whether Departmental approval had been given. He did so including making an application under the Freedom of Information Act 1992 and requesting reasons pursuant to s.32 of the Judicial Review Act in March of 1997. No affidavit is sworn by Charlie but Poynton deposes that Charlie infonns him and he believes that although Charlie was aware of the Council's decision he did not pursue his right of appeal against that decision due to his inability at the time to fund an appeal and to a misapprehension on his part as to the exact location of the proposed development in relation to a site on Lizard Island said to be of cultural and historical significance to the Dingaal people. As to the latter point it may be noted that Charlie, in his letter of objection of 21 November 1994 to the Council, stated among other things that: "The proposed development site is an area of traditional Dingaalland which is of particular importance to the Dingaal people. Should the development proceed this traditionally important site will be desecrated, and lost forever to the Dingaal people. The site was not claimed under the Native Title Act because of legal complications but Dingaal people still consider the site to be traditional Dingaal land." No details are deposed founding the conclusion that Charlie's decision not to appeal against the Council decision was due to an inability to fund it and the assertion has to be taken in the context of his apparently being funded for the present application. The Land Council's solicitors were instructed, presumably on behalf of Charlie and the Dingaal people, to investigate the matter on 1 May 1997. They tendered advice on 7 May which was supplemented on 8 May by further advice reflecting additional material which had come to hand on that day. Instructions to bring the applications were given on 8 May and as has been said they were filed on 9 May. The -- 7 of 10 -- 7 corporation's delay is explained by saying that it was not in a position to bring an application until the matter was specifically brought to its attention by Charlie. There is nothing apart from what I have already said to indicate when this was and there is no explanation for any delay that was involved. There are no facts deposed to providing a basis for concluding that Charlie's residence in a remote Aboriginal community with no legal services or his very limited understanding oflegal processes played a part in a two year delay in seeking the judicial review of the Cook Shire's decision. On the whole of the material an inference is open that the likely explanation for there being no application for ajudicial review of the Council's decision of8 February 1995 until 9 May 1997 reflects a decision made by Charlie (or on his behalf) to await the outcome of the necessary application to the Department. In any event there is in my view no satisfactory explanation for the delay in bringing the application in respect of the Council's decision. Although it is not possible to evaluate its strength with a degree of precision there seems to be an arguable case for review of the Council decision. It is acknowledged on behalf of the Council that there is no evidence of any particular prejudice to it by delay but it is submitted that there is inevitably prejudice arising out of long delay due to the effect it has on recollection and other considerations. I have suggested on other occasions that in my view courts have been unduly tolerant of delay where no specific prejudice is demonstrated. This is however not a case which depends on recollection or in which evidence has disappeared without an opportunity to identify it as potential evidence. On the other hand Clynder has acted on the basis of the Council's consent and took a number of steps to further the development of its sub-lease in terms of the town planning approval. These included commissioning building plans, taking steps in respect of project -- 8 of 10 -- 8 management and tendering and make an application to the Department. The latter step required the acquisition of what is described as environmental and topological material and advice to be put in support of the applications, one of Clynder' s directors also expended time in furthering the development. These steps might be described as simply "the ongoing expenses of a development company seeking to obtain relevant permits" and the costs discounted to reflect the risk of Departmental approval being lost. I accept that Clynder may well have not incurred expenses it did had the Council refused its application. Put shortly Clynder has suffered detriment. The considerations being those I have adverted to, the applicants' application for the extensions for statutory and prerogative review of the Council's decision should be refused. The position with respect to the review of the Department's decision is different. An extension is necessary for the statutory revie",v of the decision but not for prerogative reviews. The necessary extension is short - from 2 May to 9 May 1997. The applicants' solicitors moved promptly once they were retained and although the material is not particularly forthcoming in explaining what occurred between the applicants being notified of the decision and the solicitors being retained, it may be accepted that some time was involved in assembling the material upon which advice could be given. The Department does not oppose the extension sought and there is an arguable case for its review. The detriment to Clynder because of delay in bringing the application for review of the Department's decision is at most slight. I would therefore extend the time for the statutory review of the Department's decision. The orders therefore are- 1. I give leave to amend the application for judicial review and the statement of claim as sought. 2. I dismiss the application for an extension of the time for judicial review of the Council's decision. -- 9 of 10 -- 9 3. I extend the time for a statutory review of the Department's decision to 9 May 1997. -- 10 of 10 --