FEDERAL COURT OF AUSTRALIA
Quall v Northern Territory of Australia [2009] FCAFC 157
NATIVE TITLE – claimant application for determination of native title – claim area split into areas A and B – application heard and determined in relation to area A – determination that no native title exists for area A – same applicant subsequently wished to proceed in relation to area B – whether issue estoppel arising out of earlier determination as between same parties and in respect of same issues arising in relation to later hearing in respect of area B – primary Judge held that issue estoppel operated
PRACTICE AND PROCEDURE – issue estoppel – whether the precise issue decided as between same parties in an earlier case arose in later case – claimant application for determination of native title – claim area split into areas A and B – application heard and determined in relation to area A – determination that no native title exists for area A – same applicant subsequently wished to proceed in relation to area B – whether issue estoppel arising out of earlier determination as between same parties and in respect of same issues arising in relation to later hearing in respect of area B – primary Judge held that issue estoppel operated
Held - appeal dismissed
Dale v State of Western Australia [2009] FCA 1201 cited
Kuligowski v Metrobus (2004) 220 CLR 363 cited
Ramsay v Pigram (1968) 118 CLR 271 distinguished
Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 cited
Walton v Gardiner (1993) 177 CLR 378 cited
KEVIN LANCE QUALL (ON BEHALF OF THE DANGALABA AND KULUMBIRINGIN PEOPLE) v NORTHERN TERRITORY OF AUSTRALIA
NTD 3 of 2009
MOORE, LINDGREN & STONE JJ
11 november 2009
SYDNEY (HEARD IN DARWIN)
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IN THE FEDERAL COURT OF AUSTRALIA |
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NORTHERN TERRITORY DISTRICT REGISTRY |
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General Division |
NTD 3 of 2009 |
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ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
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KEVIN LANCE QUALL Appellant
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AND: |
NORTHERN TERRITORYOF AUSTRALIA Respondent
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JUDGES: |
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DATE OF ORDER: |
11 NOVEMBER 2009 |
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WHERE MADE: |
SYDNEY (HEARD IN DARWIN) |
THE COURT ORDERS THAT:
1. The time to file a notice of appeal from the decision of the primary judge be extended to 10 February 2009.
2. The appeal be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NORTHERN TERRITORY DISTRICT REGISTRY |
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General Division |
NTD 3 of 2009 |
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ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
KEVIN LANCE QUALL Appellant
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AND: |
NORTHERN TERRITORY OF AUSTRALIA Respondent
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JUDGES: |
MOORE, LINDGREN & STONE JJ |
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DATE: |
11 november 2009 |
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PLACE: |
SYDNEY (HEARD IN DARWIN) |
REASONS FOR JUDGMENT
THE COURT
1 This appeal concerns a claim to native title in a large area of land around the metropolitan area of Darwin. The claim was made in proceeding DG6017 of 1998 brought by William Maxwell Risk, also known as Bill Risk. On 8 May 2001 Deputy District Registrar Robson made orders, by consent, dividing the land subject to the claim into land within the urban areas of Darwin (Part A) and land surrounding Darwin (Part B). The claim relating to Part A was consolidated with 18 other applications for native title determination. The consolidated proceeding (DG6033 of 2001) was to be heard before that relating to Part B.
2 The consolidated proceeding (involving the 19 separation applications) was dismissed by Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404 (Risk). Mansfield J’s decision related only to the land in Part A. The appellants then sought to pursue the claim in relation to land in Part B. On the application of the Northern Territory, the primary judge summarily dismissed the claim pursuant to O 20 r 4 of the Federal Court Rules on 19 January 2009; Quall v Northern Territory of Australia [2009] FCA 18. This is an appeal from the primary judge’s decision.
BACKGROUND TO THE CLAIM
3 The native title claim concerned in this appeal was initiated by Mr Quall and others on 21 October 1996. The application was substantially amended on 3 May 2000 and Mr Quall was named as the authorised applicant on behalf of the Dangalaba and Kulunbringin people. This claim represented one of a number of native title claims lodged by the Dangalaba people. Many of the native title claims of the Dangalaba people conflicted in substance with native title claims lodged by the Larrakia people, represented by Mr Risk. The result was that some of the claims of the Dangalaba people were defeated. The particulars of these ancillary claims are canvassed in the judgment of his Honour below and it is not necessary for us to consider them in any more detail in relation to this appeal.
5 The background to the Risk proceeding is canvassed in some detail by the primary judge at [31]-[39]. His Honour further noted, at [40]:
After an extensive examination of the evidence and a thorough consideration of all the relevant issues, Mansfield J concluded that all of the 19 native title applications, including Mr Quall’s eleven native title applications (in so far as they related to Area A) must be dismissed.
6 The applicants in Risk appealed to the Full Court of the Federal Court and, on 5 April 2007, in a unanimous judgment, the Full Court dismissed the appeal and upheld the decision of Mansfield J; Risk v Northern Territory (2007) 240 ALR 75. Mr Quall’s subsequent application for special leave to appeal to the High Court of Australia was refused on 7 March 2008.
7 Following the exhaustion of appellate avenues in the Risk litigation, Mr Quall filed an application in the Federal Court claiming native title in relation to the Part B land. The primary judge dismissed the application on 19 January 2009, and it is with this decision that the present appeal is concerned.
THE PRIMARY JUDGMENT
8 The primary judge explained in some detail the procedural history of the present claim including the competing applications of the Larrakia/Risk applicants and the disputes between those applicants and the Dangalaba/Quall applicants. His Honour outlined the basis on which the claims were consolidated and ultimately were decided in relation to Part A land by Mansfield J. At [41] of his reasons the primary judge summarised Mansfield J’s conclusions in Risk as follows:
In relation to all of the native title applications, his Honour concluded:
1 Within the geographical area which includes the claim area, at sovereignty (1825), at settlement (1869) and thereafter during the 19th Century, there existed an Aboriginal society, namely the Larrakia peoples (which for convenience, his Honour assumed included both the Risk applicants and the Quall applicants: see at [96] and [794]), that had a normative system by reason of their traditional laws and customs which created rights and obligations possessed by them in relation to the land and waters of the claim area: see Risk at [232]-[233].
2 The present society comprising the Larrakia peoples do not have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia peoples at sovereignty in the sense explained by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (‘Yorta Yorta’), because as a result of a combination of historical events which occurred during the 20th Century there has been a substantial interruption in the practice of the traditional laws and customs of the Larrakia peoples as they existed at sovereignty and at settlement, so that their practise [sic] and enjoyment has not continued substantially uninterrupted since sovereignty (see Risk at [812]-[823] and summarised at [834]-[835]).
9 At [42] of his reasons, the primary judge also quoted Mansfield J’s conclusions in relation to Mr Quall’s 11 native title applications. Mansfield J said at [795]-[801]:
[795] It is necessary separately to consider the position of the second applicants. Clearly the second applicants are regarded by the first applicants as members of the first applicants group. Several witnesses spoke with respect of the seniority and knowledge of Tibby Quall about their laws and customs. I was impressed by Mr Quall’s evidence, and his knowledge of the particular laws and customs of which he spoke. I have referred to his evidence in my assessment of the evidence and my findings about it. For the reasons explained in this judgment, it has not led to me concluding that the current laws and customs governing the “Larrakia people” are “traditional” in the sense required by s 223(1)(a) of the NT Act.
[796] I reach the same conclusion if I address that issue concerning the laws and customs of the Dangalaba clan. Mr Quall claimed that clan is the only one which has maintained the traditional laws and customs of the society which existed at sovereignty and to the present time. I am mindful that I should distinguish between his evidence and his submissions. It is of course necessary to have regard to all his evidence. I have done so. I also have regard to his submissions, but only to the extent that they have a foundation in the evidence. The assessment of his claim must also be made upon the whole of the evidence.
[797] Mr Quall was clearly not supported by other persons (other than his sister) who, he said, were members of the Dangalaba clan. His sister Dianne Quall also was less precise than Mr Quall about the independent significance of the Dangalaba clan and the details of its laws and customs. Other persons who Mr Quall said were members of the Dangalaba clan, some of whom he described as the seniors or elders of that clan, gave evidence about the existence of the wider group comprising the first applicants. Their evidence did not explain with any precision the separate, independent existence of the Dangalaba clan. Nor did they regard it as the current, ultimate repository of the laws and customs of their predecessors in the Darwin area. They did not describe the laws and customs of the Dangalaba clan as distinct from those of the first applicants. …
[798] There is therefore uncertainty, or inconsistency, about the composition of the Dangalaba clan and the rules governing its structure. There is also, on the evidence, no satisfactory foundation for finding that the second applicants practise and enjoy certain rights and interests which arise under laws and customs which they only have inherited from or had passed on to them by their predecessors back to sovereignty. On the evidence, there is also no satisfactory foundation for concluding that the laws and customs reflect or derive from the normative system of the Aboriginal society which existed at sovereignty. …
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[800] Accordingly, I am not satisfied that there is a separate more confined society of Aboriginal persons comprising the second applicants who, alone among those who comprise what Mr Quall called the wider ‘Larrakia language group’, possess rights and interests under ‘traditional’ laws and customs by which they have a connection to the land and waters of the claim area.
[801] Indeed, the fact that there was a diversity of evidence about the composition and status of the Dangalaba clan, both from persons who Mr Quall claimed to be members of that clan, and from other witnesses, together with the fact that there was diversity of evidence about the laws and customs of that group compared to those of the wider group comprising the first applicants, tends to support my more general conclusions referred to below.
10 As noted at [6] above, both the Risk and the Quall applicants appealed from the judgment of Mansfield J. Both appeals were dismissed; Risk v Northern Territory of Australia (2007) 240 ALR 75. An application for special leave to appeal to the High Court of Australia was also dismissed. In [44]-[50] of his reasons the primary judge accurately summarised the basis of the appeal and the application for special leave and the conclusions of the Full Court and of the High Court in relation to the special leave application. That summary shows that the claims of the Quall applicants were soundly dismissed. In particular the Full Court rejected the Quall applicants’ claim that Mansfield J failed to consider the substance of their claim.
Issue estoppel – the principles
11 The motion put to the primary judge by the respondent was that the application should be dismissed on the basis that no reasonable cause of action was disclosed or that the proceeding was an abuse of the process of the Court; O 20 r 4(2). The claim was based on an assertion of issue estoppel arising from the judgment of Mansfield J. At [73]-[74] of his reasons the primary judge clearly (and in our view correctly) outlined the principles applicable to an application for summary dismissal:
The principles that apply to the summary dismissal of court proceedings are well established. They apply equally to an application such as this to summarily dismiss a native title determination application under s 61 of the NT Act. They are conveniently summarised in Edward Landers v State of South Australia [2003] FCA 264 at [7], per Mansfield J, as follows:
Whichever power is relied upon on the motion, it is accepted that the principles applicable to consideration of a summary dismissal application should be applied. The Court should only dismiss the application if the case for its dismissal is very clear: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130. Consequently, the power summarily to dismiss an application should be exercised only where the claim as expressed is untenable, and upon the version of the evidence favourable to the applicant. The Court should not, upon such an application, generally undertake any weighing of conflicting evidence or of the inferences which might be drawn from such evidence: Webster v Lampard (1993) 177 CLR 598 at 602-603.
See also: Williams v Grant [2004] FCAFC 178, at [48]-[49], per Lander J, North and Dowsett JJ agreeing. In Batistatos, [(2006) 226 CLR 256] in the joint decision of Gleeson CJ, Gummow, Hayne and Crennan JJ, their Honours observed that the statements in General Steel should not be given “canonical force” and they referred to Agar v Hyde (2000) 201 CLR 522 at [57], where it was observed that the various formulae used in General Steel and Dey, was [sic] intended to describe “a high degree of certainty about the ultimate outcome”.
It follows that I must be satisfied to a high degree of certainty that because of an issue estoppel, an abuse of process, or no reasonable prospects of success, this native title application is plainly untenable. In the process, I must take “exceptional caution” to ensure that Mr Quall and the Quall applicants are not deprived of the right to submit a real and genuine controversy for determination, which has not yet been fully and finally determined on its merits. Furthermore, I should approach this strike out application on the version of any evidence that is favourable to Mr Quall and the Quall applicants.
12 The primary judge identified, at [76], three elements of issue estoppel that the respondent needed to prove in order to succeed in its application for summary dismissal. His Honour said:
Issue estoppel applies where: (i) the same question or issue has been decided; (ii) by a final judicial decision; (iii) between the parties to that judicial decision or their privies who are the same parties in the proceedings where the estoppel is raised: see Carl-Zeiss-Stiftung at 564, Ramsay v Pigram (1968) 181 CLR 271 at 276 per Barwick CJ and Kuligowski v Metrobus (2004) 220 CLR 363 at [21] and [40].
Did issue estoppel arise in relation to Risk and Quall claims?
13 In relation to the Risk and Quall claims considered by Mansfield J, the primary judge held that only element (i) required his detailed consideration. As Mansfield J’s decision in Risk was clearly final, element (ii) was met. Similarly the applicant and respondent before him had clearly been opposed on the issues “putatively affected by issue estoppel”. Contrary to a submission put by the applicant before him, it was not necessary for all parties in both sets of proceedings to be identical.
14 In considering issue (i) above his Honour referred to his summary of Mansfield J’s conclusions (see [8] above) and quoted, at [84], the Full Court’s summary of the cases Mr Quall had put to Mansfield J. In his Honour’s view (expressed at [85] of his reasons) it followed that the critical questions raised by the competing native title applications in Risk and also before him were:
[W]hat was the Aboriginal society at sovereignty, that by the traditional laws and customs of its normative system, possessed rights and interests in relation to the lands and waters in the Darwin area (for ease of reference, I will refer to this society henceforth in these reasons as ‘the relevant Aboriginal society’) – was it the Larrakia society described by the Risk applicants, or the Dangalaba clan and/or Larrakia/Kulumbiringin as described by the Quall applicants?
15 Critically, his Honour decided, at [86], that the lands subject to the native title application before him and “all the other Quall native title applications in Risk” were described in the same way. His Honour held that splitting the lands subject to the application into Parts A and B did not change the character of the land and therefore his Honour did not accept the submission put to him by counsel for the applicants “that the findings of Mansfield J in Risk can be distinguished because they only applied to Area A”.
16 The primary judge therefore decided that the issues raised before him were identical to those raised before Mansfield J. His Honour held, at [89], that all of the elements of issue estoppel identified at [12] above were present and that “together they dictate that the decision in Risk gave rise to an issue estoppel to prevent the Quall applicants raising for determination in this native title application, the Dangalaba clan case and/or the Larrakia/Kulumbiringin case”.
The Top End society case
17 The primary judge then considered the second of the alternative cases that had been identified by counsel for Mr Quall. This case, described as the “Top End society case”, involved Aboriginal society in the region from Cox Peninsula to West Arnhem Land. The Full Court at [161]-[162] of their reasons summarised the evidence put forward in support of this case and rejected it. The primary judge summarised the Full Court’s reasons for rejecting the claim and added his own comment as follows:
In summary the Full Court rejected this case for the following reasons:
(a) no such case was put to Mansfield J: Risk FC at [176];
(b) instead the case that Mr Quall ultimately put to Mansfield J was based on the laws and customs of the Dangalaba Larrakia clan, it having fallen away from a case based on the laws and customs of the Larrakia/Kulumbiringin peoples: Risk FC at [176]; and
(c) Mansfield J properly considered, and rightly rejected, the case that was ultimately put to him on four bases, as follows (Risk FC at [177]):
(i) the current laws and customs of the Dangalaba clan were not “traditional” in the sense required by s 223(1)(a) of the NT Act: Risk at [796];
(ii) there was uncertainty or inconsistency about the composition of the Dangalaba clan and the rules governing its structure: Risk at [797]-[801];
(iii) there was no satisfactory foundation for finding that the Quall [applicants] practice and enjoy certain rights and interests which arise under laws and customs which only they have inherited from, or have been passed on to them by, their predecessors back to sovereignty: Risk at [797]-[798]; and
(iv) there was no satisfactory foundation for concluding that the Dangalaba laws and customs reflected or were derived from the normative system of the Aboriginal society which existed at sovereignty: Risk at [798].
It is obvious from these conclusions that the Full Court would not have been willing to allow Mr Quall to raise this Top End society case for the first time on appeal. Given the difficulties inherent in that approach, that probably explains why Mr Quall’s counsel argued instead before the Full Court that the case had already been put to Mansfield J and his Honour had failed to consider it. As appears above, Mr Quall’s counsel failed in that attempt. Not daunted by that failure, Mr Quall now wishes to adopt this Top End society case, as the Quall applicants’ case in this native title application.
18 The primary judge accepted that prima facie the Top End society case had not been determined in the Risk case. It would follow that no issue estoppel could arise from Mansfield J’s judgment. His Honour held, however, that this approach stated the matter at too high a level of generality. In his Honour’s view, by raising the Top End society case the Quall applicants were seeking to put before the Court an alternative society to the three that had been put forward and that while that society was “self-evidently different”, the critical issue raised was the same as was raised and determined in Risk and the relevant Aboriginal society would be the same for the land in Parts A and B. The primary judge therefore concluded that the decision in Risk gave rise to an issue estoppel that precluded the applicants before him from raising the Top End society case.
Abuse of process
19 Finally, in an exercise of caution, in case he was wrong in finding issue estoppel, the primary judge also considered the respondent’s submissions that it would be an abuse of process for the applicants to pursue the Top End society case. His Honour gave detailed consideration to the relevant principles recognising that the power to dismiss a proceeding as an abuse of process should be exercised sparingly and referred, among others, to the views expressed by French J in Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 and Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1993) 177 CLR 378 at 393-394. After detailed consideration of the issues, his Honour concluded that it would be an abuse of process for the applicants to pursue the Top End society claim. In summary, his Honour said, at [123]:
In reaching this conclusion, I have had regard to all the matters which I have set out in detail above, including the following:
a) The issue as to what was the relevant Aboriginal society at sovereignty possessing rights and interests in Larrakia lands, was one of the ultimate issues in Risk and an issue of paramount importance in that case;
b) the Quall applicants had an ample opportunity, of which they availed themselves, to fully litigate that issue in Risk;
c) the findings of Mansfield J on that issue in Risk were clear, directly apposite and final;
d) the critical issue raised by the Top End society case is (at least) very similar to the critical issue that was raised and determined in Risk;
e) it would be contrary to the public policy concerns for the finality of litigation and in maintaining public confidence in the administration of justice, to allow the Quall applicants to pursue the Top End society case in this native title application; and
f) the balance between the principle of providing free access to the courts and the principle of not vexing a person twice for the same cause, tips in favour of the latter.
20 In the light of these conclusions his Honour ordered that the native title application be dismissed pursuant to O 20 r 4(2).
ISSUES PRELIMINARY TO THE APPEAL
21 Mr Quall filed the notice of appeal on 10 February 2009 and the appeal was set down for hearing commencing 26 May 2009. On 13 May 2009, the appellants filed a notice of motion seeking to adjourn the appeal and vacate the May hearing date. That application was heard by this Full Court on 19 May 2009.
23 At the hearing of the appeal it was necessary to deal with several preliminary applications. The first was that the notice of appeal had been filed one day outside the prescribed period of 21 days. It follows that the appellants require an extension of time within which to file the notice of appeal. The appellants sought an extension of time by notice of motion filed on 13 March 2009. The primary judge ordered that this application be heard by the Full Court listed to hear the appeal. The notice of motion also included an application for leave to appeal from the judgment below. In our view that judgment was a final judgment based on a finding of issue estoppel and leave is not required; Egglishaw v Australian Crime Commission (2007) 164 FCR 224 at [38]-45]; Port of Melbourne Authority v Anshun Proprietary Limited (No 1) (1980) 147 CLR 35 at 38 per Gibbs J with whom Mason and Murphy JJ agreed. As the respondent did not contend otherwise it is not necessary to consider the question further.
24 In relation to the application for an extension of time, as only a 24 hour extension is required and the respondent did not claim any prejudice arising from that extension, we have decided that the interests of justice would be best served by granting the necessary extension and proceeding to consider the appeal on its merits.
25 The appellants also sought to amend the notice of appeal in several ways and to adduce evidence that had not been before the primary judge. In responding to this application to amend the notice of appeal, counsel for the respondent, Ms Brownhill, opposed one amendment on the basis that it was, in essence, a collateral attack on the judgment of Mansfield J. We accepted that submission and refused leave to make that amendment. We also accepted Ms Brownhill’s submission that all the other proposed amendments were covered by the existing grounds and, for that reason, it was not necessary to make those amendments.
26 Finally, the appellants sought to adduce fresh evidence in the form of an affidavit sworn on 25 May 2009 by Dr William Bartlett Day. The appellant’s primary argument in support of his application to adduce this evidence was that it contained evidence which was unavailable at the time of the hearing before his Honour in July 2008. The evidence presented in Dr Day’s affidavit did not, however, specify that the relevant material was unavailable in July 2008. Indeed, the reasonable inference to be drawn from the affidavit was that the material had been available substantially before July 2008, but that the appellants had not accessed it until after that time. On that basis we declined to allow the affidavit to be read.
THE APPEAL
27 There were two aspects to the appellants’ challenge to the findings of the primary judge, namely, that in the Risk proceeding before Mansfield J they had not had a proper opportunity to pursue their claims fully and that the judgment of Mansfield J did not create an issue estoppel affecting claims in relation to the Part B land.
The Quall applicants’ lack of opportunity in Risk to present their case
28 The express statements made by Mansfield J and the Full Court’s wholesale rejection of the claims made in the appeal from his Honour’s decision, made the appellants’ task in this proceeding very difficult. Mr Loizou did what he could in the face of these difficulties, however, many of his submissions, in form if not in substance, sought to challenge the findings made by Mansfield J.
29 In particular Mr Loizou submitted, more than once, that the Quall applicants, being unrepresented in the proceeding before Mansfield J, did not have the opportunity to litigate fully their claim to native title. In oral submissions, for instance, he stated that:
Mr Quall has been unable to fully grasp what is required to present a native title claim in its entirety. And this failure has led to material being presented which didn’t necessarily support his claim but led to his material being pushed to one side and not being given the full due that it may have been given if it was presented appropriately.
30 The written submissions for the appellants state that the primary judge wrongly concluded that the appellants had “every opportunity” in Risk to litigate whether “the exercise of native title was substantially interrupted during the twentieth century …”. Elsewhere in his submissions Mr Loizou referred to difficulties arising from the Quall applicants effectively being unrepresented before Mansfield J. The submissions also take issue with the primary judge’s finding that “the Quall applicants were a party to the consolidated proceedings and this meant that they had an opportunity to present and ventilate their arguments claiming an interest in part A”. Mr Loizou also referred to Mansfield J’s comment in Risk on the paucity of evidence before him pertaining to the Quall claim.
31 All of these submissions must be dismissed. This is an appeal from the judgment below; it is not an appeal from the judgment of Mansfield J in Risk. The rights of appeal from Risk were fully, and unsuccessfully, utilised. Even if the appellants’ complaints were justified (and we express no opinion on that) it must be accepted that there are no further rights of appeal, either direct or indirect. To succeed in this appeal, the appellants must point to an error made by the trial judge. The judgment of the Full Court and the judgment of Mansfield J (in so far as it is consistent with the judgment of the Full Court) are now the unchallengeable authorities on the issues they decided. It is not necessary for us to say any more on this point.
Issue estoppel
32 Ultimately the only issue in the appeal was whether the primary judge was correct in concluding that there was an issue estoppel that precluded the appellants from raising either of the alternative claims that were before him.
The parties
33 Mr Loizou claimed that the primary judge was in error in concluding that the parties in the application before him were relevantly the same as the parties in Risk. He submitted that as not all the applicants in Risk are parties to the proceeding in relation to the land in Part B there could be no issue estoppel arising from the judgment in Risk.
34 It is true that there were parties in Risk who were not parties to the proceeding before the primary judge or to this appeal. What matters, however, is not that some parties in Risk are not involved but that the present parties were parties in Risk and that the issue in this appeal was decided in Risk as between those same parties. The point was made by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 at 276:
Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity.
35 Ramsay concerned a motor vehicle collision between a police vehicle and a vehicle driven by the respondent, Pigram. In an action for damages in negligence brought against Pigram in the District Court of NSW by the police officer, the jury entered a general verdict in the police officer’s favour. Impliedly, this verdict rejected Pigram’s claim that there had been contributory negligence by the police officer. In a separate proceeding in the Supreme Court of New South Wales, Pigram sought damages in negligence against Ramsay who was appointed as nominal defendant to represent the NSW Government. Ramsay claimed that the District Court verdict in favour of a police officer gave rise to an issue estoppel precluding Pigram from making a claim in negligence. The High Court held that there was no privity of interest between Ramsay and the police officer such as could give rise to issue estoppel between Ramsay and Pigram.
36 In this case the Quall applicants and the Northern Territory were both parties in the proceeding in Risk. It is therefore distinguishable from Ramsay. As the primary judge correctly found, it is not necessary that the parties in both proceedings be identical; all that is necessary is that the parties are common to both sets of proceedings. The requirement was recently considered by McKerracher J in Dale v State of Western Australia [2009] FCA 1201. As his Honour observed at [33], issue estoppel may only be raised against a party who is a party to both the relevant proceedings. McKerracher J added:
However, it does not follow from this that a plea of issue estoppel will be defeated merely by the addition of a new party or the removal of a previous party in the second proceeding.
37 At this point we note that at para 17 of the respondent’s written submissions it is stated that “there was one party to the remainder of the application the subject of this appeal who was not a party in Risk”. At the hearing of the appeal no mention was made of this party and no point was made in relation to the party. As the above analysis makes clear, however, there could be no question of such a party being bound by any issue estoppel arising from Risk. The point was made by Fisher J in Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 at 358-9 (and quoted by McKerracher J in Dale at [34]):
If a party was not involved in the litigation of that issue, either because it was not an issue between him and another party to the proceeding, or because he was not a party at all to the proceedings at the time of resolution, then he is not affected by nor can he raise an estoppel.
Identical issues
38 The appellants claimed that the primary judge erred in finding that the issue before him had been decided in the Risk proceeding. In Ramsay Barwick CJ and McTiernan J held that as well as there being no privity of interest between Ramsay and the police officer, there could also be no estoppel because the issues in the two actions were not identical. Barwick CJ, at 276, distinguished between the cause of action in relation to which the issue in question arose and the issue itself. The issue must be identical in each case but not the cause of action; see also Kuligowski v Metrobus (2004) 220 CLR 363 at 379. In Ramsay the Chief Justice added at 277:
The importance of the identification of the precise issue decided in the first place in order to ascertain whether it is identical with what is sought to be litigated in the second place has been emphasized in the reported cases.
39 It is certainly true that the native title applications in the two proceedings relate to different land, namely Part A land in Risk and Part B land here. As Barwick CJ’s comment makes clear, that does not mean that there cannot be the requisite identity of issue. It is, however, necessary to identify the precise issue decided in the earlier case.
40 As outlined at [14] above the primary judge described the critical issues raised in Risk; see also [8]-[9] above. His Honour addressed the determination of these issues and identified specifically the issues that Mr Quall was estopped from pursuing before him. His remarks, at [80]-[81] bear repetition:
I have set out at [41]-[42] above, the critical issues that I consider were decided in Risk. They can be summarised as follows:
a the Larrakia peoples comprised the Aboriginal society at sovereignty that by the traditional laws and customs of its normative system possessed rights and interests in relation to the lands and waters in the Darwin area, including Area A;
b there has been a substantial interruption in the acknowledgement and observance of the traditional laws and customs of the Larrakia peoples since sovereignty such that native title does not now exist for the lands and waters in Area A; and
c there was not a separate, more confined, Aboriginal society at sovereignty that by its traditional laws and customs had rights and interests in relation to the lands and waters in the Darwin area, comprising the Dangalaba clan.
Mansfield J decided these critical issues in accordance with the principles explained by the High Court in Yorta Yorta, which are clearly delineated in his Honour’s decision and accurately summarised in Ms Brownhill’s submissions … I should add that I also agree with Ms Brownhill’s submission … that in this context, the terms ‘Larrakia’ and ‘Kulumbiringin’ both refer to the Larrakia peoples and Larrakia land.
With one addition, I therefore consider that Ms Brownhill has also accurately summarised the critical issues that were determined in Risk and which Mr Quall is estopped from pursuing in this native title application, as follows … :
1 That the Aboriginal society at sovereignty, that by the traditional laws and customs of its normative system, possessed rights and interests in relation to the lands and waters in the Darwin area, inclusive of Area A, was some Aboriginal society other than the society of the Larrakia/Kulumbiringin peoples identified by Mansfield J in Risk; and
2 That there has been no substantial interruption in the acknowledgment and observance of the laws and customs of that society of Larrakia/Kulumbiringin peoples since sovereignty.
The addition I have mentioned above is that I also consider Mr Quall is estopped from claiming in this native title application that: there was a separate, more confined, traditional Aboriginal society at sovereignty comprising the Dangalaba clan that by the traditional laws and customs of its normative system, possessed rights and interests in relation to the lands and waters in the Darwin area.
41 There are two main aspects to the findings made by Mansfield J that are summarised above. First, there is his Honour’s finding that the Larrakia peoples are the relevant Aboriginal society for Larrakia lands; second is that there has been substantial interruption to the “acknowledgment and observance” of traditional laws and customs. Both of these findings must be applicable to the present application concerning the land in Part B if issue estoppel arising from the judgment in Risk is to preclude the present application.
42 While the land that is the subject of the present application (Part B) is different from the land the subject of the application in Risk (Part A), the essence of the claim in both cases is that there has been uninterrupted observance of traditional laws and customs by the native title applicants from sovereignty to the present day. Those laws and customs relate to all land in which the applicants claim to have native title and it is from that uninterrupted observance that their native title is said to stem. This continuity of observance is an essential element of any claim of native title; when the laws and customs that existed at sovereignty cease to exist the interests arising from the laws and customs also cease to exist: Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at 446.
43 The present native title application derives from the application considered by Mansfield J in Risk. As already explained the land subject to the application comprised both Parts A and B. The application has been dismissed in relation to Part A and remains to be considered only in relation to Part B. In relation to both Parts A and B the claim to native title depended on the uninterrupted observance of laws and customs from sovereignty. Those laws and customs were asserted to be those of a particular group of Aboriginal people which includes the appellants.
44 In the respondent’s written submissions in the appeal, the following points are made concerning the identity of that Aboriginal group (references to the appeal book have not been included):
The appellant has always asserted in this native title determination application that the land claimed was Larrakia land, although he adopted the term “Kulumbirringin land” rather than “Larrakia land” in the current version of this application.
Notwithstanding this change in nomenclature, there was no change in the underlying identity or character of the land in question.
The native title determination application the subject of Risk and this appeal (NTD6013 of 1998) has been in its current form since 11 February 2001. The claim group is said to comprise certain named descendants of Kulumbiringin ancestors. Schedule F of the application sets out the factual basis on which it is asserted that:
(a) the native title claim group has, and the predecessors of those persons had, an association with the area;
(b) there exist traditional laws and customs that give rise to the claimed native title; and
(c) the native title claim group has continued to hold the native title in accordance with those traditional laws and customs.
Schedule F makes reference to Attachment S as setting out the factual basis for the above. Attachment S:
(a) discloses the sources of the information contained in Attachment S, including various historical documents and anthropological reports;
(b) asserts that the native title claim group acknowledge and observe traditional laws and customs because of a connection to land “in the Darwin region, and subject areas, what we call Kulumbiringin land;
(c) asserts that “Kulumbiringin” is the original, traditional and language name of the Aboriginal people in occupation of that land since “time immemorial”;
(d) accepts that “Larrakia”, rather than “Kulumbiringin”, is the name that has generally been used in ethnographic and historical material to describe the Aboriginal people of the Darwin region;
(e) asserts that the traditional land area of Kulumbiringin country is best depicted on the map produced by NB Tindale in his work Aboriginal Tribes of Australia published by University of California Press, 1974; and
(f) attaches a copy of Tindale’s map.
Tindale’s map shows the boundaries of lands and waters identified as “Larakia”, which coincide generally with the description in Attachment S of Kulumbiringin country. That country extends well beyond the boundaries of the present native title determination application, the southern boundary of which is north of the place identified on Tindale’s map as Darwin River.
The present application makes no distinction within the lands identified as Kulumbiringin lands or country about matters of connection or traditional laws and customs. It is therefore clear that the present application is founded on an assertion that the land the subject of this appeal was held, at sovereignty, by a group of Aboriginal people pursuant to the traditional laws and customs of the same society of Aboriginal people (“the relevant Aboriginal society”) as the land the subject of Risk.
45 In our view the above is an accurate summary and we accept it as such. It follows that Mansfield J’s findings in Risk give rise to issue estoppel that is fatal to the appellants’ claim in relation to Part B land. In summary the existence of native title in Part B land is inconsistent with the findings that:
(a) the land in Part B, as in Part A, is Larrakia land;
(b) the Larrakia peoples are the relevant Aboriginal society for Larrakia lands; and
(c) the laws and customs acknowledged and observed by the Larrakia peoples at sovereignty have been subject to substantial interruption between that time and the present day.
These findings were made in a proceeding to which the appellants and the respondent were both parties. The issue estoppel inevitably follows.
For these reasons the appeal must be dismissed.
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I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Lindgren & Stone. |
Associate:
Dated: 11 November 2009
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Counsel for the Appellant: |
Mr B Loizou (pro bono) |
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Solicitor for the Appellant: |
Anthony Dean Buckland |
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Counsel for the Respondent: |
S L Brownhill |
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Solicitor for the Respondent: |
Solicitor for the Northern Territory |
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Date of Hearing: |
26 May 2009 |
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Date of Judgment: |
11 November 2009 |
