FEDERAL COURT OF AUSTRALIA

Eagles on behalf of the combined Thiin-Mah Warriyangka, Tharrkari and Jiwarli People v State of Western Australia (No 2) [2018] FCA 898

ORDERS

THE COURT ORDERS THAT:

1.    The joinder application of Wayne Lapthorne dated 29 March 2018 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BARKER J:

1    By order made 29 March 2018, I dismissed the application of Kulyamba Aboriginal Corporation RNTBC to be joined as a respondent party to this claimant application under the Native Title Act 1993 (Cth) (NTA).

2    Kulyamba’s joinder application was supported by the affidavit of Mr Wayne Lapthorne, a director of Kulyamba, made 5 February 2018.

3    Immediately following the dismissal of Kulyamba’s joinder application, Mr Lapthorne applied to be joined in his own name.

4    By his affidavit in support of his interlocutory application for joinder dated 29 March 2018, he relevantly states:

2.    I also seek to rely on my affidavit dated 5 February 2018 supporting Kulyamba Aboriginal Corporation RNTBC’s application to be joined as a party to these proceedings filed 15 February 2018.

3.    I am a Thudgari person.

4.    I am a Director of Kulyamba Aboriginal Corporation RNTBC, which is the prescribed body corporate for the Thudgari people according to Thudgari People v State of Western Australia [2009] FCA 1334 (the Thudgari Determination).

5.    The claim area in these proceedings is Thudgari country. The Thudgari people hold rights and interests in the claim area under our traditional laws and customs.

6.    Tjiwarli, along with the Warringka and Thiin Maah all come under the Thudgari umbrella. We all live and exist together as one people, the Thudgari people.

7.    Thudgari is the boss. Under our laws and customs you can’t claim an interest or native title rights in Thudgari country unless you identify yourself and are identified by others as a Thudgari person.

8.    I believe that my interests as a Thudgari person holding native title rights in the claim area may be affected by a determination in the proceedings in that:

(a)    I identify as a Thudgari person; and

(b)    I am concerned that people may become members of claim group and the determined native title holders who do not identify and are not identified by other as Thudgari people.

9.    I believe that it is in the interests of justice to grant the application because:

(a)    There has not been significant delay in lodging this application;

(b)    No significant steps have been taken in the proceedings; and

(c)    A central issue in the proceedings will be the manner in which the TMWTJ claim group description is being framed, which on its face is inconsistent with the Thudgari Determination.

5    Mr Lapthorne also relies on an affidavit of Mr Paul Antony Sheiner made 19 April 2018 in support of his application. To his affidavit, Mr Sheiner attaches correspondence between Roe Legal Services, the solicitors for Mr Lapthorne, and the State Solicitor’s Office said to be relevant to this application.

6    Leaving aside more formal parts, Roe Legal enquired:

(1)    whether the State had raised the abuse of process issue with the applicant in writing; and

(2)    whether the State intended to argue that the claim group description in these proceedings constituted an abuse of process.

7    The State Solicitor’s Office replied indicating that it did not have instructions to deal with Roe Legal “as your client is not a party to the proceedings”.

8    Mr Lapthorne also relies on the affidavit of Ms Kelsi Morgan Joan Forrest, solicitor in the employ of Roe Legal, made 2 May 2018, which attaches a redacted version of a copy of meeting notes of the Thiin-Mah Warriyangka, Tharrkari and Jiwarli (TMWTJ) claim group meeting held at Carnarvon Senior Citizens made on 9 November 2017.

9    Ms Forrest adds that she is informed by Mr Lapthorne that the persons named in resolution 171109.05 are the current members of the TMWTJ working group and she believes this to be true.

10    That resolution states:

The TMWTJ Claim Group authorises the following people to be the Working Group and to deal with the day to day matters of the claim:

(TMW) Brendan Thompson, Herbert Eagles, Peter Salmon

(T) Ben Roberts, Phil Roberts, Peter Windie

(J) Roslyn Randall, Lois Dodd, Nathan Butler

Moved: Sharon Randall

Seconded: Phil Roberts Snr

For: 44

Against: 0    Abstain: 0

Carried: Yes

11    In written submissions made on his behalf, Mr Lapthorne submits:

(1)    The joinder applicant relies on the submissions and affidavit filed in support of the joinder application by Kulyamba, the registered native title body corporate for the Thudgari people as determined in Thudgari People v State of Western Australia [2009] FCA 1334 (Thudgari Determination). That joinder application was dismissed in accordance with reasons which were later published as Eagles on behalf of the combined Thiin-Mah Warriyangka, Tharrkari and Jiwarli People v State of Western Australia [2018] FCA 442.

(2)    Relevantly this application is distinguishable from the Kulyamba application in that the applicant has rights and interests in the determination area likely to be affected by the determination: Chubby on behalf of the Puutu Kunti Kurrama and Pinikura People v State of Western Australia [2015] FCA 964 at [18]-[20] adopting Mansfield J’s reasoning in Starkey and Others v South Australia and Others (2011) 193 FCR 450 at [61]-[63], [65]; [2011] FCA 456.

(3)    Further, while his Honour held in the earlier joinder application that the interests of justice did not favour the joinder, the factors considered by his Honour were peculiar to the status of the applicant in that application as the prescribed body corporate.

(4)    The interest of justice favour the joinder of Mr Lapthorne in this application as:

(a)    The existing parties are unable to point to any specific prejudice that may arise by reason of the joinder (for example, delay to the proceedings).

(b)    The abuse of process issue on which the joinder applicant seeks to be heard is clear and well-defined: Far West Coast Native Title Claim v State of South Australia (No 5) [2013] FCA 717 at [37].

(c)    The application of a different “identification test” (Aplin on behalf of the Waanyi People v State of Queensland [2010] FCA 625) could have a significant impact on the composition of the membership of the claimant group and the determined native title holders: TR (Deceased) on behalf of the Kariyarra-Pipingarra People v State of Western Australia [2016] FCA 1158 at [37].

(d)    The joinder applicant’s position as to the claim group description is supported by the anthropological evidence prepared for the Thudgari Determination: Gordon (on behalf of the Kariyarra Native Title Claim Group) v State of Western Australia [2018] FCA 430 at [354]. It is unclear whether any expert evidence exists to support the description proposed in the current native title determination application.

(e)    The State is unable to say whether it will agitate the abuse of process issue in the proceedings and in its response to the joinder applicant appears to be inviting the joinder application: TJ (on behalf of the Yindjibarndi People) v State of Western Australia [2016] FCA 553 at [164] citing Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]; [2001] FCA 1229 (Emmett J).

(f)    The solicitors for the applicant are obtaining instructions from a body other than the applicant, known as the TMWTJ working group (see affidavit of Marcus Fort sworn 22 March 2018; compared to s 62A of the NTA). A replacement of the applicant under s 66B is of limited utility in these circumstances.

(g)    There is a genuine dispute that requires resolution such that a refusal of the application may result in a multiplicity of proceedings including an overlapping native title claim.

12    In a further written submission Mr Lapthorne also draws the attention of the Court to what was said by White J in Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 at [123]-[125], [148]-[151] as follows:

123    The position of the Bunna Lawrie Parties is similar in some respects to that of the Walman Yawuru Claimants considered in Rubibi Community v State of Western Australia (No 3) [2002] FCA 876; (2002) 120 FCR 512. The Walman Yawuru claimed to have competing and conflicting native title rights and interests in respect of part of the area claimed by two applicant groups in separate proceedings. Merkel J permitted the joinder of the Walman Yawuru as respondents in the two proceedings even though they were within the description of the claim groups bringing each proceeding.

124    The position of Bunna Lawrie Parties is also similar in some respects to that of the ‘Indigenous Respondents’ considered by North ACJ in TR (deceased) on behalf of the Kariyarra-Pipingarra People v State of Western Australia [2016] FCA 1158. In that case, the Indigenous Respondents had become parties to native title proceedings pursuant to s 84(3)(b). It seems that their interest was to challenge the composition of the claim group. Following an amendment to the claim group, an apical ancestor of the Indigenous Respondents was included so that they themselves then became members of the applicant claim group. The Applicant then sought their removal as parties.

125    North ACJ considered that in the circumstances of the Kariyarra-Pipingarra Claim, the Indigenous Respondents were not to be characterised as dissentient members of the claim group of the kind discussed by Mansfield J in Starkey. His Honour held that their interest in contesting the membership of the claim group itself was not an intra mural matter, at [36]-[37]. Although North ACJ considered that a number of discretionary considerations militated against the Indigenous Respondents remaining as parties to the proceedings, he did not order their removal as parties. The matters which pointed to removal were that the Indigenous Respondents could not seek a determination of native title in their favour in the proceedings and had not indicated any intention to institute a competing application, at [45]; having regard to s 67(1) of the NT Act and the principles of finality and avoidance of multiplicity of proceedings implicit in s 22 of the Federal Court of Australia Act 1976 (Cth), they may well be forever precluded from bringing such an application, at [45]; the State supported the view of the two anthropologists on whom the Applicant relied for the composition of the claim group, at [47]; and the continuation of the Indigenous Respondents as parties to the proceedings had the potential to delay the finalisation of the application and to be productive of further expense at a time when the Applicant and the State were otherwise relatively close to agreement on a consent determination, at [48]. The decisive consideration which led to the refusal of the removal applications was that the position of the Indigenous Respondents with respect to the society which they claimed held the native title rights and interests was supported by a third anthropologist. This meant that the Indigenous Respondents had raised an arguable case in support of competing native title which it was appropriate to have resolved in a substantive hearing, at [50].

…

148    In my view, a number of these matters have substance. However, I am not satisfied on balance that I should accede to the Applicant’s removal application with respect to the Bunna Lawrie Parties. Although there is an intra-mural dispute, its subject matter is the composition of the claim group as the party asserting native title, and not the manner of conduct of the claim. It cannot be assumed that, if native title exists in relation to the sea area, it is held by the same group recognised as having native title over the adjacent land. That recognition is likely to be an important factor in the determination of the sea claim but it is not decisive. It is open to the Bunna Lawrie Parties to contend that the native title is held by a more confined group. It has been recognised that when the sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: Kite v State of South Australia at [22]. That tends to confirm that the Bunna Lawrie Parties may have an interest to be defended in the present proceedings.

149    The Bunna Lawrie Parties have not delayed in seeking to be joined in the proceedings. Although they have not so far adduced any anthropological evidence, each has deposed to matters which may underpin such evidence. It may be appropriate in due course to make programming orders which require the Bunna Lawrie Parties to provide at an early stage any anthropological evidence on which they do intend to rely.

150    I accept that the Bunna Lawrie Parties have the alternatives under the NT Act to which the Applicant referred but they may not exhaust the means by which they may obtain a judicial determination of their underlying grievance.

151    Accordingly, I decline to order that the Bunna Lawrie Parties, other than Mr Laing, be removed as parties. His claim will have to be considered separately.

13    The applicant in the claimant proceedings opposes Mr Lapthorne’s joinder application.

14    In written submissions, the applicant draws the Court’s attention to additional paragraphs in Miller at [120]-[121] as follows:

120    The dissatisfaction of a claim group member with the institution of proceedings or the manner of their conduct does not of itself warrant that person being joined to, or remaining as, a party to the proceedings: Kulkalgal People v State of Queensland [2003] FCA 163 at [7]-[8]. An authorisation of an applicant pursuant to s 251B does not require unanimity amongst the claim group (unless the traditional laws and customs or other agreed decision-making groups so require). That is to say, lack of unanimity, and even dissension among a claim group is a recognised prospect, but the NT Act does not contemplate that the authorised proceedings will be a vehicle for the resolutions of all such disagreements. In Starkey, Mansfield J reviewed many of the authorities and concluded, at [61], that, while there is no necessary legal impediment to a member of a native title claim group being joined, or remaining, as a respondent party to a claim, the circumstances in which a dissentient member will be permitted to become or remain a respondent party will be rare. His Honour gave a number of reasons for that conclusion which is not necessary to repeat presently. I agree, respectfully, with the analysis of Mansfield J in this respect.

121    The position may be different, however, for those persons, who although within the description of the applicant claim group, contend that their native title rights and interests exist by reason of their membership of a different and competing claim group which will be affected by a determination of native title in the proceedings.

15    To the extent that Mr Lapthorne seeks to rely on the written submissions stated in the joinder application of Kulyamba, the applicant submits those earlier submissions are irrelevant to the present joinder application and that the key issue for Kulyamba’s joinder application was whether a prescribed body corporate for a neighbouring area had a legitimate interest in the present claim.

16    The applicant says the key issue arising in this joinder application is whether Mr Lapthorne ought to be both applicant and respondent in the proceeding and it is not in the interests of justice that he should be.

17    As to the interests of justice, the applicant makes the following submissions:

(1)    Mr Lapthorne is the sixth-named member of the applicant in the TMWTJ native title claim.

(2)    It will only be in rare circumstances that a dissentient who is named as an applicant in a native title application should also be joined as a respondent: Drury v Western Australia and Others (2016) 244 FCR 294; [2016] FCA 52 at [22] following Chubby.

(3)    The reasons for the rarity are set out in Chubby at [22]-[25].

(4)    They include that the NTA provides that a claim group will authorise the making of a native title determination application in accordance with s 251B of the NTA.

(5)    The Form 1 which was authorised by the claim group in the present proceedings sets out the claim group description in Sch A.

(6)    Paragraph 7 of Sch F of the Form 1 concludes:

The current claim is brought on behalf of the same native title holders in the Thudgari Native Title Determination WAD 6212 of 1998 but [who] wish to be referred to as TMWTJ instead of ‘Thudgari’.

(7)    The present claim group has therefore authorised the present claim group description and acknowledged the different naming of the claim group in this claim.

(8)    Mr Lapthorne now seeks to be joined as a respondent to argue that the claim which he has brought (together with the other named applicants) is an abuse of process.

(9)    It appears Mr Lapthorne also intends to remain as one of the named applicants.

(10)    If joined as a respondent, Mr Lapthorne would therefore both approbate and reprobate the current native title determination application.

(11)    In these circumstances, the present case is not one of the rare cases in which it is in the interests of justice for a named applicant to be joined as a respondent.

18    In reply submissions, Mr Lapthorne submits that:

(1)    The applicant focuses on two factors. First, it relies on the fact that the joinder applicant has authorised the current claim group description. Second, it says that it will give rise to a situation in which the joinder applicant will “both approbate and reprobate”.

(2)    The joinder applicant contends that in the particular circumstances of this case neither of these factors weigh against the joinder.

(3)    In relation to the first point, the claim group description, the statement relied upon by the applicant at [7] of Sch F to the Form 1, to the effect that the claim was being brought on behalf of the same group of native title holders as in the Thudgari Determination is, with respect, incorrect. The joinder applicant contends this is not in fact the effect of the claim group description.

(4)    The inclusion of this statement in the Form 1 indicates that the applicant, the claim group and representative body may not have had a proper understanding as to the effect of the claim group description. It is this inconsistency which the joinder applicant now seeks to raise and resolve in the current proceeding to the extent it may constitute an abuse of process.

(5)    The second point reflects the submissions of the State in Drury at [15] which were referred to but not adopted by his Honour in that case:

Even if the discretion to join a person who is one of the persons comprising the applicant as a respondent does exist under s 84(5) of the NTA, the requirement of the persons who are the applicant to act jointly to do all matters arising under the NTA in relation to the application will prevent a person comprising the applicant from being an effective respondent.

(6)    The situation contemplated by the State in Drury does not arise in this matter because the solicitor for the applicant is obtaining instructions, including in relation to the joinder applications, and otherwise dealing with the day to day matters that arise in relation to the claim from a group other than the named applicants called the TMWTJ working group. The joinder applicant is not a member of the TMWTJ working group, nor are the following named applicants: Lorraine Dodd, Philomena Dodd, and Heidi Mippy. The TMWTJ working group has effectively replaced the applicant without reference to the process set out in s 66B of the NTA.

(7)    The joinder applicant contends that these circumstances, together with the other factors identified in [4] of the submissions of the joinder applicant filed 19 April 2018, constitute “rare circumstances” in which the interests of justice support the joining of a named applicant as a respondent.

19    I consider, largely for the reasons that I gave in Drury and Chubby, that Mr Lapthorne should not be joined as a respondent party in this proceeding on this joinder application.

20    Whether or not the claim group description in this proceeding is the same as that in the Thudgari Determination, is not, in my view, presently a factor significantly material to justify joinder at this time. The simple fact is there is a substantial correlation between the claimants in this proceeding and the persons who hold native title following the Thudgari Determination. It is not self-evidently the case that a question of “abuse of process” presently arises, as Mr Lapthorne submits. I see no reason why Mr Lapthorne should be joined as a respondent to agitate such an issue. Should, of course, any such issue arise in the future, it would be open to the Court to reconsider this joinder issue on that basis.

21    Whether or not, as submitted on behalf of Mr Lapthorne, the claim group may not have had “a proper understanding” as to the effect of the claim group description, equally is not an issue that I consider to be of present relevance. The fact that Mr Lapthorne now wishes to raise and resolve what he says is an “inconsistency”, is not, in my view, a sufficient interest to justify his joinder individually as a respondent while he remains a member of the claim group.

22    Just because the solicitor for the applicant obtains instructions and deals with the day to day matters that arise in relation to the claim from the TMWTJ working group, on behalf of the applicant, is also not presently a factor that should lead to Mr Lapthorne being joined.

23    I infer that the TMWTJ working group is a working group established to assist the applicant in the proper conduct of the claimant application. It is open to the applicant to take advice as it sees fit. The fact that Mr Lapthorne is not a member of that working group, is not, in my view, presently relevant to the joinder application.

24    The primary position remains, as I explained in Drury, that the conduct of claimant applications under the NTA would run foul of the procedure envisaged by the NTA if individual claim group members were to be joined as respondent parties as a matter of course with the capacity that would flow therefrom to frustrate the conduct of the claimant application by the applicant entrusted with that responsibility by the claim group, as provided for by the NTA.

25    While the cases referred to by White J in Miller show that joinder orders have been made in respect of individuals who are within the claim group, each case depends on its own facts. I am not persuaded that this is an appropriate case, having regard to the facts and regarding the interests of justice, in which to order joinder.

26    It is well understood that it remains open, under the NTA, for members of a claim group who are dissatisfied with an applicant, to take steps to replace the applicant pursuant to s 66B.

27    I would therefore dismiss the interlocutory application made 29 March 2018 by Mr Lapthorne to be joined as a respondent party to the proceeding.

Associate:

Dated:    14 June 2018