CITATION:	Kaltukatjara Community Council Aboriginal Corporation v Brumby & Ors [2018] NTCA 9

PARTIES:	KALTUKATJARA COMMUNITY COUNCIL ABORIGINAL CORPORATION ICN 200

	v

	BRUMBY & ORS
	
TITLE OF COURT:	COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:	CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction 

FILE NO:	21020435

DELIVERED:	20 July 2018 

HEARING DATES:	25 May 2018; then determined on the papers. 

JUDGMENT OF:	Barr J

CATCHWORDS:

PRACTICE AND PROCEDURE – Appeal – Court of Appeal consisting of a single judge – application for leave to appeal from interlocutory decision setting aside an order dismissing proceeding for want of prosecution – SCR 24.06 – Decision appealed from interlocutory, in a matter of practice and procedure – applicant failed to establish that decision was wrong or attended with sufficient doubt as to warrant leave to appeal – application dismissed

Supreme Court Rules, r 24.06
Supreme Court Act, s 53 (2) and s 53 (3) 

Iskandar v Merpati Nusantera Airline (No. 2) (2006) 16 NTLR 22; Nationwide News Pty Ltd (t/as) Centralian Advocate and Ors v Bradshaw and Anor (1986) 41 NTR 1; Northern Territory of Australia v GRD Kirfield Ltd & Anor [2003] NTCA 01; Northern Territory of Australia v Roberts [2009] NTCA 5; Rogerson v Law Society of the Northern Territory (1993) 88 NTR 1; Wright Engineers Pty Ltd and Anor v BTR Trading (Qld) Pty Ltd and Anor [1987] NTCA 4, applied. 

REPRESENTATION:

Counsel:
	Appellant:	R Morley 
	Respondent:	A Phillis 

Solicitors:
	Appellant:	Ruth Morley Legal Services 
	Respondent:	Povey Stirk 

Judgment category classification:	B
Judgment ID Number:	Bar1807
Number of pages:	13

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Kaltukatjara Community Council Aboriginal Corporation v 
Brumby & Ors [2018] NTCA 9
No. 21020435

	BETWEEN:

	KALTUKATJARA COMMUNITY COUNCIL ABORIGINAL CORPORATION ICN 200
	Applicant 

	AND:

	BRUMBY & ORS
		Respondents
CORAM:	Barr J

REASONS FOR DECISION 

(Delivered 20 July 2018)
Introduction
[1]	The applicant (“KCCAC”) seeks leave to appeal from the judgment of Luppino AsJ given on 13 March 2018. The judgment was an interlocutory judgment and leave to appeal is therefore required by s 53(1) Supreme Court Act. The application must be determined in the first instance on the papers by the Court of Appeal consisting of a single judge; if the application is refused, the applicant party is entitled to have the application determined by the Court of Appeal consisting of not less than three judges.
[2]	The applicant relies on the affidavit of Ruth Louise Cresswell Morley, sworn 10 April 2018. That affidavit had annexed a copy of the Decision, and contained a statement of the proposed grounds (reproduced from the application), a ‘cut and paste’ copy of the catchwords published with the Decision, and a very brief statement as to why leave to appeal should be granted. There were no submissions as such.  The respondent relies on the affidavit of Alison Phillis sworn 23 April 2018, which properly identified the relevant facts and provided detailed arguments as to why leave should be refused. 
[3]	I am satisfied that leave should be refused, for reasons which I now set out. 
[4]	In order to obtain leave to appeal from a discretionary judgment, it must be shown that the judgment appealed from is either wrong, or at least attended with sufficient doubt so as to warrant the granting of leave. Further, if the judgment sought to be appealed is a discretionary judgment in a matter of practice and procedure, then, notwithstanding that error may be shown, leave may still be refused unless it can be shown that substantial injustice will be done by leaving the erroneous decision unreversed. 
[5]	The principal proceeding is a claim pursuant to the Compensation (Fatal Injuries) Act made in respect of the death of a 72 year old female who suffered fatal burn injuries when she was a resident of an aged care centre operated by KCCAC at Docker River Community. The application before the primary judge was to set aside an order dismissing the principal proceeding for want of prosecution and for consequential orders. The power of the Supreme Court under SCR 24.06, to set aside an order that a proceeding be dismissed for want of prosecution, involves the exercise of discretion in a matter of practice and procedure. The principles set out in [2] above therefore apply.
[6]	The background to the application in the Supreme Court was fully explained by the primary judge, and it is not necessary to repeat his Honour’s detailed summary. His Honour’s decision was stated simply as follows, at [82]: 
I am prepared to set aside the order dismissing the proceedings for want of prosecution and I will give leave to the plaintiffs to amend their Statement of Claim. I will also extend the validity of the writ for service purposes if that is required.
[7]	In addition to the orders indicated, his Honour stated his preparedness to hear further submissions in relation to consequential procedural orders, such as the removal of unnecessary parties. 
[8]	Counsel for the applicant argued before the primary judge that to reinstate the proceeding would be futile because KCCAC was dissolved on commencement of s 262 (1) Local Government Act (NT) on 1 July 2008. However, his Honour rejected that submission and determined that KCCAC continued to exist notwithstanding the local government reforms of 2007-2008. As a consequence, His Honour determined that it would not be futile to grant the plaintiff's application. 
[9]	In relation to a submission asserting evidentiary prejudice to the KCCAC, his Honour noted that it had had not adduced any evidence of unsuccessful attempts to contact relevant witnesses or of inability to carry out necessary or appropriate inquiries. His Honour characterized the prejudice submission as a bare claim of prejudice, without an evidentiary foundation. 
[10]	For a similar reason, his Honour rejected submissions as to legal prejudice. In relation to the submission that KCCAC would face limitation issues in any action it might take to enforce its insurance policy, the primary judge carefully examined the chronology of events in relation to the claim made by the applicant on its policy. His Honour identified that the claim had been made on 2 February 2010, prior to issue of the writ on 4 June 2010. Indemnity was ultimately refused by the insurer by letter dated 8 September 2010. The proceedings were not dismissed until 13 December 2011. His Honour noted that 14 months passed from the date of denial of liability to the date of dismissal of the proceedings. In relation to the exercise of his discretion, His Honour referred to the lack of action by KCCAC and the fact that there was no satisfactory explanation as to why nothing was done in that 14-month period. His Honour rejected evidence adduced on behalf of KCCAC that it had not taken action to enforce its insurance policy because of the dismissal of the proceedings, noting that the assertion was not supported by the actual chronology. Indeed, his Honour considered (without deciding) that there was force to the submission of Mr D G Alderman, counsel for the respondents (plaintiffs below), that KCCAC may well have decided not to challenge the insurer’s decision to refuse indemnity. 
[11]	His Honour characterised the ground of prejudice dealt with in the previous paragraph as “little more than another bare claim of prejudice”. 
[12]	The primary judge also dealt with a claim by KCCAC as to financial prejudice, concluding that the “… claim of financial prejudice is again little more than a bare claim of the possibility of prejudice and unsupported by actual evidence.” In dealing with the submission that KCCAC had managed its affairs for many years on the understanding that the claim had been dismissed, his Honour noted the absence of evidence that KCCAC had organised its affairs on the basis of the proceedings being at an end, or of some consequential detriment. There was no evidence that KCCAC had done anything differently, whether from the time the proceedings were dismissed or from when it became aware of the dismissal of the proceedings.
[13]	The proposed grounds of appeal do not challenge any of the findings made by his Honour as to the absence of proof of prejudice.  
[14]	The primary judge appears to have appropriately considered the competing considerations in terms of the relative prejudice to the plaintiffs if the relief sought were not granted, weighed against the prejudice to the defendants if it were. His Honour observed that the plaintiffs had a good prima facie case. His Honour accepted that the solicitors acting for the plaintiffs at various times bore responsibility for the delay in seeking to set aside the order for dismissal of the proceedings for want of prosecution. His Honour ultimately expressed satisfaction that the balance of prejudice favoured the plaintiffs. In so finding, his Honour was satisfied that the defendants could still have a fair trial.  
Proposed grounds of appeal 
[15]	In the application for leave to appeal, the proposed grounds are stated as follows: 
Ground 1. The Associate Justice erred in considering that there was no constitutional principle which relevantly affected the exercise of the discretion in favour of the plaintiffs.
Ground 2. The Associate Justice erred in rejecting the submission of the First Defendant [that] compliance was required with s 78B Judiciary Act before he entertained any submissions from the Plaintiffs to the effect that s 262(1) LGA could not apply to the First Defendant because the First Defendant was incorporated pursuant to Commonwealth legislation.
Ground 3. The Associate Justice erred in considering that the plaintiffs had satisfactorily discharged their obligation to establish any or any reasonable explanation for the three and a half year delay in the bringing of their application.
Ground 4. The Associate Justice erred in considering the plaintiffs had adduced any or any sufficient evidence that supported his conclusion that ‘the lack of sophistication of the First Plaintiff’ provided a proper basis for the exercise of his discretion.
Ground 5. The Associate Justice erred in relying upon the following facts or law when those matters had not and ought not to have been determined unless or until affect had been given to s 78B Judiciary Act;
a.	‘The application of section 262(1)(c) to KCC is at odds with KCC’s incorporation as an Aboriginal Corporation under Commonwealth law and with the evidence which shows that KCC performed local government type functions.’ [paragraph 46]
b.	‘Indeed if section 262(1)(c) of the LGA applies to it, KCC no longer exits.’
Ground 6. The Associate Justice erred in refusing to adjourn the matter until there had been compliance with s 78B Judiciary Act.
Reasons why leave should be granted;
1.	To ensure that the court complies with s 78B Judiciary Act.
2.	To ensure that there be a proper evidentiary foundation underpinning the exercise of discretion.
3.	To permit proper consideration of the issue of whether or not and to what extent s 262(1) LGA applied to the First Defendant.
[16]	Given the repeated references, express and implied, to s 78B Judiciary Act (Cth), it is necessary to consider the requirements imposed by that section and their relevance to the proceeding before the primary judge. 
[17]	Relevantly, under s 78A Judiciary Act, the Attorney-General of the Commonwealth may on behalf of the Commonwealth intervene in proceedings before a Territory court if the proceedings “relate to a matter arising under the Constitution or involving its interpretation”. The contention of the applicant appears to be that, because KCCAC was incorporated pursuant to a law of the Commonwealth, the issue before the primary judge was “a matter arising under the Constitution or involving its interpretation”, and that, as a result, the primary judge should not have proceeded until such time as notice had been given to (at least) the Attorney-General of the Commonwealth pursuant to s 78B Judiciary Act.
[18]	The ‘constitutional’ argument(s) of KCCAC cannot be sustained. In order to advance its futility argument in the Supreme Court, referred to in [8], it argued that KCCAC had been dissolved, pursuant to s 262(1)(c) Local Government Act. Logically, however, the dissolution contended for would only have taken effect if (1) a law of the Territory had applied to KCCAC in the circumstances and (2) the Territory law had effect notwithstanding that a law of the Commonwealth, namely, the Corporations (Aboriginal and Torres Strait Islander) Act 2006, contained an apparently complete statement of the law governing Aboriginal and Torres Strait Islander corporations, including incorporation (through the process of ‘registration’), de-registration and winding up. As was observed by Gleeson CJ and Gummow J in Northern Territory of Australia v GPAO:
There may be discerned in a law which is of general application throughout the nation and is made by the Parliament in exercise of a power conferred by s 51 of the Constitution the legislative intention to make exhaustive or exclusive provision on the subject with which it deals. Section 109 of the Constitution then will apply on the footing that, “when the Parliament appears to have intended that the Federal law shall be a complete statement of the law governing a particular relation or thing ... the operation of the Federal law would be impaired if the State law were allowed to affect the matter at all”. In such a case, it is to be expected also that this field will be covered with respect to the territories. For example, one would be slow to attribute to the Parliament the intention that a law with respect to defence would occupy two fields and, in that sense, operate differentially across Australia, or that a law with respect to marriage would segregate the population by a criterion of residence in a territory rather than elsewhere in Australia. [citations omitted] 
[19]	Thus, if a Commonwealth law were a “complete statement” of the law on a particular subject, a Territory law which sought to govern some aspect of that subject matter could not operate concurrently with Commonwealth law. The ‘complete statement’ or ‘indirect inconsistency’ test requires consideration of a number of issues, most relevantly, whether the Territory law attempts to regulate the same subject matter as the Commonwealth law and whether there is a ‘real conflict’ between the two laws.
[20]	In the present case, the primary judge determined that s 262(1)(c) Local Government Act did not apply to KCCAC, because it was not a “constituent council” as referred to in the subsection. His Honour’s conclusion was based on his interpretation of Territory law, applied to the facts as found. The conclusion was not that s 262(1)(c) Local Government Act could not apply to KCCAC because it was incorporated pursuant to Commonwealth legislation. The decision was not made on any ‘constitutional’ basis. His Honour thus did not need to consider any issue of direct or indirect consistency between Territory law and a law of the Commonwealth. 
[21]	Significantly, the applicant does not contend by its proposed grounds of appeal (and makes no submissions) that the finding, that KCCAC was not a “constituent council”, was wrong. It simply argues (as the proposed second ground) that there should have been compliance with s 78B Judiciary Act before the primary judge decided the matter. 
[22]	In circumstances where the primary judge held that s 262(1)(c) Local Government Act did not apply to KCCAC, there was no issue as to whether or not the operation of a Commonwealth law was impaired by a Territory law. There was no ‘real conflict’. It follows that the proposed grounds of appeal asserting error in relation to the identification of constitutional principle or in relation to non-compliance with s 78B Judiciary Act are not arguable. That effectively disposes of proposed grounds 1, 2, 5 and 6. 
Remaining grounds 
[23]	In relation to grounds 3 and 4, the applicant has failed to point to specific inadequacy in the evidence adduced on behalf of the plaintiffs to explain the delay in bringing their application. 
[24]	In my opinion, there was a more than adequate evidentiary foundation for the findings made by the primary judge which underpinned the exercise of his Honour’s discretion. 
[25]	I mention in this context the affidavit of Daniel Brumby, sworn 29 May 2017. Mr Brumby deposed to the fact that English was his second language; that, prior to attending Batchelor College, where he learned to write, he had been a bricklayer, stockman and truck driver; and that he had had suffered serious health problems as a result of alcohol misuse before moving to Docker River, a dry community. Although he then ceased consuming alcohol, he was diagnosed with renal failure and required to undergo weekly dialysis. He decided to move to Alice Springs for such treatment. Mr Brumby also referred to his general inexperience with the legal system in relation to compensation claims. 
[26]	His Honour concluded that Mr Brumby was an unsophisticated man, of limited education, who would not have understood the concepts in relation to the lawyers’ incorrect assumption that KCCAC had been dissolved, and the consequent legal issues. That inference was clearly open. His Honour concluded that the order for dismissal of the proceedings came about due to inactivity on the part of the plaintiffs (Daniel Brumby principally) and the failure of the lawyers to take responsibility for the conduct of the proceedings. 
[27]	As I read pars [10] – [23] of the Decision, I am satisfied that the primary judge was entitled on the evidence to make a finding that the delay on the part of the plaintiffs should not be attributed to the plaintiffs personally, but rather to the lack of understanding and/or lack of appropriate action on the part of various solicitors who had worked on the case at different times. In my opinion, his Honour’s statement, that he would not have expected Mr Brumby to have done any more than he did in the circumstances, was justified. Certainly, the applicant has not satisfied me to the contrary. 
[28]	In my opinion, proposed grounds 3 and 4 are weak.  
Conclusion 
[29]	The applicant has not established that the interlocutory decision appealed from was wrong, or attended with sufficient doubt as to warrant the granting of leave for its reconsideration on appeal. It follows that leave should be refused.  
[30]	I would propose to make an order for costs against the applicant. However, I will first hear the parties as to consequential orders, including as to costs. The respondents should file minutes of order to reflect the following intended orders: 
1.	The application for leave to appeal is dismissed. 
2.	Costs reserved.
3.	Within 14 days, the applicant file submissions as to why a costs order should not be made consequent upon the dismissal of the application.
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