FEDERAL COURT OF AUSTRALIA

Dale v State of Western Australia [2011] FCAFC 46

THE COURT ORDERS THAT:

1.    The appeal is 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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

THE COURT

1    On 23 October 2009, a judge of the Court dismissed the claim of the appellants as applicants for the Wong-goo-tt-oo (WGTO) people for a determination of native title of rights and interests: Dale v State of Western Australia (2009) 261 ALR 21 (Dale). The Court did so on the motion of the State of Western Australia (the State) that the claim should be summarily dismissed because it disclosed no reasonable cause of action. This is an appeal from that decision. The claim itself has a long and somewhat complex history.

2    The Court notes that the name “Wong-goo-tt-oo” appears to be one adopted by the appellants for the purpose of the proceedings. It is not the traditional name of any group of Aboriginal people. This was common ground between the parties.

Procedural History

(i)    The Claim

3    Pursuant to s 61(1) of the Native Title Act 1993 (Cth) (NT Act) the WGTO peoples lodged with the National Native Title Tribunal (the Tribunal) a Form 1 application on 10 July 1998 and filed it with the Federal Court on 30 September 1998. It was given the Action No WAD 6256 of 1998. An amended Form 1 application was filed with the Court on 7 January 1999 and a further amended Form 1 was filed on 22 March 1999. The claim group essentially comprises the members of three families namely the Douglas, Hicks and Ramirez families, who authorised the appellants to bring the application. They claimed exclusive native title rights and interests over an extensive area of land and waters in the north western area of Western Australia, including what they described as their core area identified as the Pulara (between the George and Nickol Rivers), the Thaluntha (Karratha) estate and the archipelago now known as the Burrup.

(ii)    Claims Overlapping the Claim Area

4    The WGTO claim area overlapped the claim areas of three other claimant groups: the Ngarluma/Yindjibarndi (NY) claim group (Action No WAD 6017 of 1996); the Yaburara/Mardudhunera (YM) claim group (Action No WAD 127 of 1997); and the Kuruma Morthudunera (combined) (KM) claim group (Action No WAD 6090 of 1998). It is necessary to explain a little more about the three overlapping claims.

5    The NY native title determination application was lodged with the Tribunal on 8 June 1994, and was filed with the Federal Court on 21 November 1996. The claim area comprised land and waters extending over the general area from middle reaches of the Fortescue River, following the escarpment of the Hamersley Ranges, northwards to the Indian Ocean, including the Dampier Archipelago. The western boundaries roughly corresponded with the Maitland River and the eastern boundaries were situated between the Balla Balla and Peawah Rivers. Its claim area was therefore roughly to the north and east of the WGTO claim area, also extending beyond the coast line. There was an extensive area of overlap of the WGTO claim area on its northern and eastern sections with the NY claim area.

6    The YM native title determination application was lodged with the Tribunal on 1 August 1996 and filed with the Federal Court on 7 November 1997. The application was amended by orders of the Court on 27 January 1999 and 11 March 1999. It related to an area of approximately 4,500 square kilometres so far as it overlapped the claim of the NY peoples. It too covered the Burrup and surrounding islands, Chicester Ranges, Mt Leopold and the Nickol River. The YM claim extended south and west of the WGTO claim area, but it included an extensive area of overlap with the WGTO claim area in the land and waters extending to the south western boundary of the NY claim area.

7    In rough terms, the WGTO claim area was overlapped as to its northern and eastern reach by the NY claim and it was overlapped as to the balance, being its southern and western reach, by the YM claim.

8    The KM claim area also partly overlay or overlapped the WGTO claim area and the NY claim area. The KM claim area is generally in the southern part of the overlapping claims. Its northern section overlaps with the southern section of the WGTO claim area, and with the southern section of the YM claim area. It does not overlap at all with the NY claim area.

9    In very broad terms, moving north and east from the southern section of the overlapping claims (the coast line also runs roughly north and east), there is

1.    an area of the KM claim with no overlap;

2.    an area of the KM claim which overlaps with the YM claim, and to a lesser extent with the WGTO claim;

3.    an area of the YM claim which overlaps with the WGTO claim;

4.    an area of the YM claim and the WGTO claim which overlaps with the NY claim; and

5.    an area of the NY claim with no relevant overlap.

Hence, parts of the WGTO claim overlap each of the other three claims. There is also a relatively small area of the WGTO claim area in its south eastern section with no overlap.

10    The WGTO claim related to an area of almost 13,000 square kilometres so far as it overlapped the claim area of the NY claim. All together its claim area covered almost 25,000 square kilometres.

(ii)    The Consolidation Order

11    On 25 September 1998, a judge of the Court ordered that the YM claim be consolidated with the NY claim to the extent the YM claim area overlapped the NY claim area. The NY people were described as the first applicants. The YM claimants thereby became the second applicants to the NY claim. On 6 May 1999, also by an order of a judge of the Court, the WGTO claim was also consolidated with the NY claim, then including part of the YM claim area, to the extent that the WGTO claim area related to the same area of land as that consolidated proceeding. The WGTO claimants thereby became the third applicants to the NY claim. It is convenient to call the consolidated proceedings, the NY consolidated claim.

12    It is easy to understand why those consolidation orders were made. Section 67(1) of the NT Act requires the Court to ensure that, to the extent that applications under s 61 for determination of native title cover the same area, they are dealt with in the same proceeding. Section 68 requires there to be only one determination of native title in relation to a particular area. That is why the notice requirements under s 66 of the NT Act are so comprehensive.

13    Section 67 of the NT Act provides:

(1)    If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area they are dealt with in the same proceeding.

(2)    Without limiting subsection (1), the order of the Court may provide that different parts of that area covered by an application are to be dealt with in separate proceedings.

14    At this point, it is appropriate to refer to the legal effect of the consolidation orders. Under O 29 r 5 of the Federal Court Rules (FC Rules) the Court has the power to order several “proceedings to be consolidated or may order them to be tried at the same time or one immediately after another or may order them to be stayed until after the determination of any of them” if it appears to the Court that:

(a)    some common question of law or fact arises in both or all of them;

(b)    that the rights to relief claimed therein are in respect of, or arise out of, the same transaction or series of transactions; or

(c)    that for some other reason it is desirable to make an order under this rule…

15    In Wilson v Minister for Land and Water Conservation for the State of New South Wales (2003) 126 FCR 500 Hely J considered the effect of a consolidation order. His Honour at [40] stated:

If an order for consolidation of the applications were made, the two applications would be merged into one, with respondents to each application becoming respondents to the consolidated application. A necessary consequence of an order for consolidation being made would appear to be that the land the subject of the consolidated proceedings would be the two areas the subject of the existing applications.    

16    The consequence of the two consolidation orders was that the NY consolidated claim was to be heard and would then determine whether native title rights and interests still existed in respect of all or any of the NY claim area and, if so, whether those rights were held by the NY claimants, the WGTO claimants or the YM claimants. Of course, it was possible that other different claimant groups could have been found to hold native title over different parts of the NY consolidated claim area. Necessarily, too, to the extent that the NY consolidated claim area did not include any area over which either the WGTO claimants or the YM claimants made a claim, any determination of native title would be in favour of the NY claimants.

17    A further consequence of the two consolidation orders was that the WGTO claim remained as a separate proceeding, as did the YM claim, and in each case the claim area had been reduced by the exclusion from their respective claim areas of that part of the claim area in each which overlapped with the NY claim area; those overlap areas became part of the claim area in the NY consolidated claim.

18    It is important for the purposes of this appeal to recognise that the WGTO claim under consideration encompasses its original claim area reduced by that part of the claim area which was included in the NY consolidated claim. So, too, the YM claim now encompasses its original claim area reduced by that part of the claim area which was included in the NY consolidated claim. In each instance, still, there was a substantial overlap of the WGTO claim area and YM claim areas.

(iv)    The Hearing of the NY Consolidated Claim

19    The hearing of the NY consolidated claim commenced in Karratha on 20 September 1999. No formal pleadings or case books were filed. Instead issues in contention were identified as they arose and were the subject of ongoing oral and written submissions throughout the course of the trial. Evidence continued for a total of 40 days, 35 of which were ‘on country’ at various sites within the NY consolidated claim area considered to be of significance to the claim by one or other of the claimants. There were 80 lay witnesses called, 78 of whom were Indigenous persons. Additionally, there were 21 expert witnesses who provided reports and 11 of them were called to give oral evidence. Final submissions were presented on 25 February 2003.

20    The trial judge delivered his main judgment, with a draft preliminary determination, on 3 July 2003: Daniel v State of Western Australia [2003] FCA 666 (Daniel). The parties were given an opportunity to make further submissions on various issues arising from those reasons and the draft determination. His Honour’s subsequent rulings on those issues were delivered on 5 December 2003: Daniel v State of Western Australia [2003] FCA 1425; 2 July 2004: Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254; 29 October 2004: Daniel v State of Western Australia [2004] FCA 1388; (2004) 212 ALR 251, 4 March 2005: Daniel v State of Western Australia (No 2) [2005] FCA 178; (2005) 141 FCR 426 and 21 March 2006: Daniel v State of Western Australia [2006] FCA 271. His Honour issued a final determination on 2 May 2005: Daniel v Western Australia [2005] FCA 536.

21    In summary, the trial judge determined:

    that native title rights and interests exist over the whole of the NY consolidated claim area but in two separately defined areas for the benefit of two separate groups, the Ngarluma People and the Yindjibarndi People, being formerly the two groups claimed to comprise the single NY claim group;

    that orders should be made pursuant to ss 56(2) and 57(3) of the NT Act, so that a prescribed body corporate held the native title of the Yindjibarndi People in trust; and that the Ngarluma people were required to nominate a prescribed body corporate for the native title to be held in trust, alternatively that part of the area will be held by the common law holders;

    that the claims to native title over the overlapping portions of the NY consolidated claim area by the WGTO claim group as the third applicants and by the YM group claim as the second applicants were dismissed.

22    As to the WGTO claim, his Honour said at [24] that:

…[the] dismissal [was] without prejudice to any rights the members of the [WGTO] group…may have as Ngarluma people or Yindjibarndi people (and not as [WGTO] ) to be native title holders.

In effect, his Honour contemplated that those persons comprising the WGTO claim group in respect of the NY consolidated claim area may be eligible to enjoy native title rights and interests as members of either the Ngarluma People or the Yindjibarndi People.

The NY Consolidated Claim

(i)    Evidence Concerning WGTO

23    In the NY consolidated claim, the WGTO people called an anthropologist Mr O’Connor to give evidence primarily in relation to the genealogy of the three main families: the Douglas family, the Hicks family and the Ramirez family. The trial judge noted that he did not have the post graduate qualifications of other expert anthropologists called by the other applicants, and that his expertise derived from his academic qualifications in his work primarily for resource companies undertaking heritage studies. He had not previously conducted any anthropological research in the claim areas or on behalf of Indigenous native title groups.

24    The WGTO people claimed to have native title rights and interests over the overlapping part of the NY consolidated claim area at, and continuously since, sovereignty. Their claim was based on their genealogical link between the three families such that it formed a single cognatic kin group, in accordance with their traditional laws and customs. Mr O’Connor gave evidence that the Douglas and Hicks families had a common ancestor, Rosie Clifton, to whom both families were said to be related by matrilineal descent (possibly to Woodbrook Mary). He further gave evidence that the Ramirez family was related to the other two families in the following way: an ancestor of the Hicks family, Winningbung (the wife of Jack Hicks), was the sister of a Ramirez family ancestor, Nyungurtu, and Nyungurtu’s daughter, Karipang (Ernie Ramirez's maternal grandmother), was related to an ancestor of the Douglas family (Woodbrook Mary).

25    In addition, the WGTO people called several lay witnesses, including Tim Douglas and Wilfred Hicks. The evidence of Mr Douglas as to his traditional status and authority in the Pulara and Thaluntha areas, together with the status and authority of Wilfred Hicks, was central to the WGTO peoples claim to native title over the area in issue.

26    The WGTO people contended that there were two distinct communities connected by traditional law and custom to different areas of the relevant land and waters, of which the George River was the boundary. The first was the community inhabiting the areas east of the George River (Croydon, Sherlock, Pyramid, Whim Creek) at the time of European settlement and that the initiatory practices of that community were those of Walajingka law. The second community comprised the ancestors of the WGTO claimant group who inhabited the area west of the George River (Old and New Woodbrook, Roebourne and Karratha/Maitland) at the time of European settlement, whose initiatory practices were different and were now under the authority of Tim Douglas. There was also a third community, the Yindjibarndi people, whose ancestors inhabited the Tablelands at the time of European settlement. The different laws of these three communities were said to connect each people to their different traditional lands, and was evidence of the differentiation of the WGTO people from the Ngarluma and Yinjibarndi people.

27    Mr Douglas said that he belonged to Andover (or New Woodbrook station) by Aboriginal law. He said his country, through his great grandmother, extended from Old Woodbrook as far as 45 miles extending to the Sherlock, George Rivers, down the Harding River to the coast and across to the Nickol River. He said Wilfred Hicks, through his father and grandfather, was Nyambali and carried the law for the land around Karratha and the Burrup. He claimed to have a senior status in law, and a responsibility and authority over all that country.

28    He further claimed to practice the traditional law of the Roebourne area and that his law was Bidara law. He considered that although the current law at Woodbrook was Bidara law (involving circumcision) of Yindjibarndi origin, in the traditional law there was Walajingka law (involving arm tying and no circumcision). This was also described by Mr O’Connor. Mr Douglas’ evidence was that his forebears, who were responsible for the traditional law of the Roebourne area, had abandoned the arm tying practice because it was too harsh. They had instead retained a symbolic relic of arm-tying as an addition to the Yindjibarndi initiatory practices referred to as “free” law.

29    Mr Hicks claimed he had full rights in the core country of his claim area because he carried the law for that area. He had been “overrun” by others such as by the Yinjibarndi people and had therefore not asserted his rights earlier. He claimed rights in the Ngurin areas through his grandfather. He said he was “claiming as a [WGTO] group of a Ngarluma person”. Mr Hicks also testified that Aboriginal people had no rights to enter other people’s land without permission. His permission was required in the WGTO “core area”, although this was ignored by others.

30    Kenny Jerrold was also called to give evidence. He acknowledged the Ngurin/Ngarluma country as being that of Tim Douglas, Dora Solomon, Nita Fishook and their families, through their common ancestor Kanyin. He accepted Wilfred Hicks as being under the law authority of Tim Douglas.

31    The claim to native title of the Dampier Archipelago and the Burrup was based on an alleged transmission of native title by two Aboriginal men, Maitland and Island, to Jack Hicks in the late 1930s and early 1940s. Maitland and Island were said to be the last members of the tribe which lived on the Burrup, which they called the Yaburara.

32    In final submissions the NY claim group asserted for the first time that their claim group also included “members of the [WGTO] group and some members of the [YM] group – notably, the Cosmos family”.

(ii) The Findings concerning WGTO

33    The following is a brief summary of the findings made by the trial judge in Daniel in relation to the WGTO people.

34    His Honour found that the name “Wong-goo-tt-oo” was not the traditional name of any group of Aboriginal people but was one adopted by the WGTO people for the purpose of the proceeding: see Daniel at [50] and [354]. As noted above this was common ground.

35    His Honour’s principal conclusion was that the WGTO did not form a single cognatic kin group and had not made out their claim to be a traditional native title group. His Honour accepted that the Douglas and Hicks families had a common ancestor (an Aboriginal woman, possibly Woodbrook Mary) that could be traced back to sovereignty in the Pulara area: see Daniel at [377] and [1454].  Further it was accepted that the Ramirez family could trace its history back to sovereignty in the Pulara area through Ernie Ramirez to his maternal grandmother, Karipang, and to her mother, Nyungurtu, a woman alive at the time of European settlement.  However, his Honour did not accept that the Ramirez family was genealogically connected to the Douglas or Hicks families.  His Honour said at [1455]:

The asserted unspecified link between Karipang and Woodbrook Mary is not substantiated in the evidence, and there is, therefore, insufficient basis to establish any genealogical connection between the Douglas and Ramirez families.

Thus, no continuity in the mutual or common relation based on family connection was established between all members of the WGTO group.

36     Having found that the WGTO claimants were not a traditional native title group, his Honour went on to conclude, in addition, that they could not establish continuity of existence as a group since sovereignty. He stated at [384]:

It should also be stated in relation to the families in the [WGTO] whose history can be traced back to sovereignty, that there is no evidence that before the constitution of the [WGTO] group they had any common relation or purpose other than their familial commonality if it can be made out. In the absence of appropriate evidence, it could not be safely inferred that the actions of any one family were taken on behalf of the three families now constituting the group. That is reinforcing of the view that upon the constitution of the group there was a discontinuity from the several existence of the constituting families in the past so that it cannot be concluded the [WGTO] have established continuity as a group.

37    Since their claim to be a traditional group was not made out, the WGTO group could not establish connection as a group nor that they held native title rights and interests as a group, even though those rights “appear in traditional form”: see Daniel at [506]. His Honour also found that there was no evidence of a continued connection with the Pulara area: see Daniel at [507].

38    The claims in relation to connection to the Thaluntha area were based on the assertion that the WGTO people were descendants of the families of Jack Hicks and his wife Charlotte.  His Honour made two principal findings in relation to this area of the claim.  First, his Honour held that Jack and Charlotte Hicks were members of the Yindjibarndi group, the traditional country of which did not include the Thaluntha area: see Daniel at [1452] and [1453]. Second, his Honour concluded that connection to the Thaluntha area from sovereignty to the present had not been maintained: see Daniel at [507]. Each of the three Hicks claimants lived their adult life away from the area, having left when they were children or teenagers.  His Honour also noted at [317], that Wilfred Hicks had not asserted his rights to the Thaluntha area “because he had been over-run by others”.

39    Further, it was found that the WGTO people generally, and Tim Douglas in particular, did not practise the traditional law and custom for the Roebourne area. In any event, the law practised by Tim Douglas (purportedly as traditional for the area) was not followed by the other members of the WGTO group: see Daniel at [314], [315] and [507].

40    With respect to the claims in relation to connection to the Burrup, the trial judge found native title did not exist: see Order 2 of the Determination of 2 May 2005. As noted above, the WGTO people claimed that native title rights and interests in the Burrup had been transferred to Jack Hicks by two Aboriginal men who were traditional owners of the area. His Honour held that all native title “disappeared” upon the demise of the group that formerly held native title and that there was no evidence of a transfer to Jack Hicks: see Daniel at [373]. Even if there had been a purported transfer of title from the former owners to the WGTO people, his Honour held such a transfer was ineffective under the common law of Australia, citing Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 (Yorta Yorta): see Daniel at [383]. Further, even if those two findings were wrong, his Honour found that the WGTO people did not maintain connection with the Burrup area from the date of the purported transfer until the present time since continued acknowledgment or observance of the traditional laws and customs had not been shown. His Honour stated at [505]:

Even if the evidence of [WGTO] was accepted as establishing traditionality of their law and custom, I agree with the submission for the first respondents that the evidence does not establish a continuing connection to the Burrup from the 1930s to the present. There was no evidence of connection with the islands of the Dampier Archipelago.

41    Another significant conclusion of the trial judge was that the WGTO People were not differentiated from the rest of the Ngarluma and Yindjibarndi People. His Honour found that the WGTO claimants’ self identification as Ngarluma or Yindjibarndi did not inhibit their ability to qualify as a group for the purposes of the NT Act: see Daniel at [359]. However, the fact that they self-identified “with a group other than the [WGTO] is relevant evidence as to whether what is claimed…is anything more than their rights as Ngarluma and Yindjibarndi peoples or as a sub-group thereof”: see Daniel at [357]. His Honour went on to conclude that it was possible that members of the WGTO people still held native title as Ngarluma or Yindjibarndi People: see Daniel at [508]-[509].

42    As noted above, his Honour dismissed the WGTO claim in the NY consolidated claim to the extent that it overlapped with the NY claim, such dismissal being without prejudice to any rights of the members of the WGTO claimant group but only as Ngarluma People or Yindjibarndi People to be native title holders: see Daniel at [1163] and Order 24 of the Determination of 2 May 2005.

(iii)    Full Court Appeal

43    An appeal was lodged to this Court from that decision by the WGTO People: see Dale v Moses [2007] FCAFC 82 (the Daniel Appeal). A second appeal was pursued by the NY people: see Moses v Western Australia (2007) 160 FCR 148 (Moses). These appeals were heard together. The Daniel Appeal was dismissed on 7 June 2007 and the second of the appeals was allowed in part. It mainly concerned extinguishment issues, with the judgment also delivered on 7 June 2007.

44    The grounds of appeal and submissions of the WGTO people to the Full Court, to a large extent, concerned the rejection of certain evidence regarding connection and continuity given by Tim Douglas, and Kenny Jerrold. The grounds of appeal were summarised by the Full Court in Moses at [95] as raising the following three key issues:

    whether his Honour erred in not accepting that the [WGTO] group was a cognatic kin group of continuous existence which has maintained connection with their “core area” since sovereignty;

    whether his Honour erred in failing to find that the [WGTO] people were separate and distinct from the Ngarluma and Yinjibarndi peoples;

    whether the [WGTO] people hold native title rights and interest in the Burrup.

45    The issues arising on these grounds of appeal were the subject of the reasons in the Daniel Appeal. In relation to the first issue identified above, the Full Court held that it was open to the trial judge on the evidence to make the finding that there was no genealogical connection between the Ramirez family and the other two families. The finding that the WGTO claim group was not a cognatic kin group was fundamentally inimicable to the case which had been advanced by them as to why they presently, and had since sovereignty, constituted a native title group possessing and exercising native title rights and interests over the claim area which was in issue in the NY consolidated claim.

46    The second of the key issues identified above, primarily related to challenges to the trial judge’s conclusions about Tim Douglas’ evidence regarding the practice of traditional laws of the communities in the WGTO core area within the NY consolidated claim. The Full Court held that it was not demonstrated that his Honour erred in rejecting that evidence, as it was not demonstrated that there was cogent and compelling evidence establishing that his conclusion concerning the credibility of Tim Douglas was wrong. The second issue further related to challenges to his Honour’s treatment of the evidence of Kenny Jerrold as well as Wilfred Hicks. Similarly the Full Court held that it was open to the trial judge to reject their evidence.

47    The third issue concerned the contention that the trial judge erred in applying the principles discussed in Yorta Yorta. The WGTO claim group relied on the passage by the High Court at [44] in which their Honours discussed the “efficacy of rules of transmission of rights and interests.” The Full Court found that the trial judge was correct in rejecting the contention as the relevant observations were directed to intergenerational transmission of rights and interests under traditional laws within the one society. They did not support a proposition of the type relied on by the WGTO claim group that transmission of rights and interests in land from one society to another can be effected and recognised as rights and interests of the transferee society, by a simple handover to a differently constituted group for the purposes of the NT Act. However, the Full Court found that it was not necessary to finally resolve this contention as the trial judge had not accepted the evidence that the WGTO people were a society at all and there was no evidence to support the finding that the traditional laws and customs in issue included a right of transmission nor that there had been in fact a transmission. The Full Court held that his Honour was correct in finding that there was no direct evidence concerning a right of transmission.

Proceedings at First Instance

(i)    The Matters in Issue and the Orders

48    The WGTO people now seek to pursue the WGTO claim for a determination of native title in relation to remaining areas that were not the subject of the determination in the NY consolidated claim. That relates to their original claim area, but excluding that part which overlapped with the NY Claim and was dealt with in the NY consolidated claim. As the NY consolidated claim did not address the township areas of Karratha, Point Samson, Wickham and Dampier, those township areas were also part of the ongoing claim area in the WGTO claim. The NY claim (and so the NY consolidated claim) did not seek a determination of native title rights over those township areas even though they lay within the boundaries of the NY claim.

49    In essence, the present WTGO claim concerns three areas:

(1)    an area claimed by three claim groups, roughly south and west of the area of the NY consolidated claim, the WGTO claim group, the KM claim group and the YM claim group: see at [4] above. No Ngarluma or Yindjibarndi claim is made to this area;

(2)    an area along the coast described as the town areas of Karratha, Wickham and Point Samson claimed by the WGTO claim group but not claimed by the NY claim group in Daniel. As noted, the town areas lie within, but are not part of, the overlap area determined in the NY consolidated claim, and were not then claimed by the NY claim group. Subsequent to the notice of motion referred to in the next paragraph, a different native title claim group on behalf of the Ngarluma People have made a claim to the town areas as noted in [52] below; and

(3)    a relatively small area solely claimed by the WGTO claim group, being the area referred to in [9] above.

50    The State by notice of motion of 15 July 2008, pursuant to O 24 r 4 of the FC Rules, applied for summary dismissal of the application over the townsites of Karratha, Point Samson, Wickham and Dampier on the basis that no reasonable cause of action was disclosed, and additionally pursuant to s 84C of the NT Act (with respect to the townsite of Dampier only) on the basis that the application did not comply with s 61A(2).

51    On 11 February 2009, the State’s motion was amended to extend to orders that the WGTO claim in its entirety be dismissed, pursuant to O 24 r 4 of the FC Rules on the basis that no reasonable cause of action was disclosed. In the alternative the State sought dismissal of the WGTO application in respect of the townsites of Karratha, Point Samson and Wickham on the basis that no reasonable cause of action was disclosed. In the further alternative it sought dismissal of the application over the townsite of Dampier on the basis that no reasonable cause of action was disclosed, or pursuant to s 84C of the NT Act on the basis that is did not comply with s 61A(2). In fact, the WGTO claim group by that time no longer sought a determination of native title over the townsite of Dampier. The State nevertheless sought a declaration in respect of Dampier to put the matter beyond doubt.

52    After the notice of motion of the State, a further application for determination of native title under s 61 of the NT Act had been filed by Violet Sampson and others on behalf of the Ngarluma People (WAD 165 of 2008). That application is confined to the townsites of Dampier, Karratha, Wickham and Point Samson and remains in mediation with the Tribunal. The Ngarluma People through the applicant in that proceeding were joined to the WGTO claim as the twelfth respondents.

53    The notice of motion was heard by McKerracher J. The State successfully contended that the claim was bound to fail because the WGTO people were estopped from asserting that they form a society that has existed continuously since sovereignty because of key “findings” made in Daniel. As a secondary argument, the State contended it was ‘highly implausible’ the WGTO people could establish native title over the town sites of Karratha, Wickham and Point Samson when the trial judge found in Daniel that the Ngarluma People held native title to the areas surrounding those town sites and that the WGTO people did not.

54    As noted, on 23 October 2009, his Honour gave judgment: Dale. His Honour ordered that:

1.    the motion of the State of Western Australia for summary dismissal be allowed;

2.    the WGTO claim be dismissed; and

3.    there be no order as to costs.

In substance, that disposed of the WGTO claim in its entirety.

55    There was some doubt as to whether that decision was interlocutory, and so whether leave to appeal was required. On 12 March 2010 Gilmour J made orders that, if the decision was interlocutory, the WGTO claim group have leave to appeal.

56    This appeal is brought from that decision, raising the matters specified in a proposed substituted Notice of Appeal dated 12 March 2010.

(ii)    The Parties to the WGTO Claim and this Appeal

57    Because the basis of the decision under appeal is issue estoppel, it is necessary to identify the parties to the NY consolidated claim, who are of course directly bound by the decision in Daniel as upheld by the Full Court in the Daniel Appeal. There is no complete coincidence between the parties to the decision in Daniel and the parties to the WGTO claim.

58    When part of the WGTO claim was consolidated with the NY consolidated claim on 6 May 1999, the only respondent party to the WGTO claim was the State. It was also a party to the NY consolidated claim. Parties began joining the WGTO claim as respondents on 15 June 1999. When the final oral submissions were made on the NY consolidated claim, there were 32 parties to the WGTO claim. Between that time and the handing down of the Daniel judgment on 3 July 2003, no additional parties had joined the WGTO claim as respondents but two parties had withdrawn.

59    Nineteen of the respondent parties to the NY consolidated claim were also parties to the WGTO claim from time to time. However, there were 12 (out of 30) parties to the WGTO claim at the time of the Daniel decision that were not respondents to the NY consolidated claim.

60    After the handing down of the decision in Daniel, there were further changes to the parties to the WGTO claim. One additional party joined the WGTO claim as a respondent and apparently one party, or possibly two parties, withdrew. When the decision was handed down on 23 October 2009, there were 35 respondent parties to the WGTO claim.

61    The named persons as applicant on behalf of the Ngarluma People, who are also now claiming native title over the township areas, were not a party to the NY consolidated claim. They are now a party to the WGTO claim and they supported the State’s motion for its dismissal and they support the State in opposing the WGTO claim group’s appeal to this Court. On 16 January 2010, they filed a notice of contention on the appeal to the effect that there are other findings that give rise to an issue estoppel against the WGTO people’s claim. A question may arise as to their status to raise such an issue in the circumstances.

62    The KM claim group (WAD 6090 of 1998) also had an interest in the WGTO claim area so far as it overlapped with their claim: see [8] above. They also were not a party to the NY consolidated claim. They nevertheless supported the State’s motion for summary dismissal and they also support the State in opposing the WGTO claim group’s appeal to this Court. At the end of the hearing of the appeal, orders were made allowing the KM people to apply to file a notice of contention to support the decision at first instance, together with submissions in support of being allowed to file the notice of contention and in support of the notice of contention generally. On 7 September 2010, such submissions were filed. The notice of contention asserts that the pursuing of the WGTO claim is an abuse of process because it seeks to relitigate issues fundamental to the WGTO claim which have already been determined adversely to the WGTO people in Daniel and the Daniel Appeal, even if strictly speaking an estoppel cannot arise which the KM people can assert because they were not a party to the NY consolidated claim. It will be necessary to consider whether they should be allowed to make that contention, and if so to determine its merits.

63    The Commonwealth and Woodside Energy Ltd were parties to both the NY consolidated claim and the WGTO claim. They did not actively participate in the hearing of the appeal and both indicated that they would abide by the orders of the Court, save as to costs.

64    Western Australian Fishing Industry Council Inc and Joe Rinkins filed submissions on 10 August 2010 adopting the submissions of the State, the Ngarluma People and the KM people. Both of those parties were parties to both the WGTO claim and the NY consolidated claim.

65    Santos Offshore Pty Ltd was not a party to the NY consolidated claim. It neither supported nor objected to the appeal.

(iii)    The Reasons of the Primary Judge

66    After setting out the background to the proceeding, McKerracher J noted the principles governing summary dismissal. It is not contended that his identification of the relevant principles was erroneous. In particular his Honour noted at [11]-[16] the following:

    no proceeding should be summarily dismissed except in a very clear case;

    if there is a real question of fact or law to be determined, and the rights of the parties depend upon it, a proceeding should not be summarily dismissed;

    the fact that detailed argument may be necessary to highlight the contention that summary dismissal should be ordered should not be determinative of the issue; and

    the Court should have regard to the version of facts most favourable to the applicant but this does not mean that every fact pleaded has to be accepted.

67    Next his Honour discussed the relevant key aspects of the decision in Daniel and set out the matters which the State contended are findings in relation to the WGTO people: see [22].

68    McKerracher J went on to discuss the principles of issue estoppel, starting with a reference at [24] to Blair v Curran (1939) 62 CLR 464, where Dixon J said at 531-532 that:

A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion. (McKerracher J’s emphasis)

His Honour paraphrased the principle of issue estoppel as being “in relation to any issue of fact or law that is legally indispensable to a prior decision involving the same parties”.

69    With reference to Carl Zeiss Stiftung v Rayner & Keller Ltd (No 2) [1967] 1 AC 853 his Honour then noted, at [25], that issue estoppel only applies in a later set of proceedings if the following requirements are met:

    the same question has been decided;

    the judicial decision said to create the estoppel was final; and

    the parties to the judicial decision, or their privies, were the same persons as the parties to the proceedings in which the estoppel is raised.

70    In addition, his Honour discussed the recent decision of Quall v Northern Territory of Australia [2009] FCA 18 where an order similar to that sought was made by Reeves J: see [26]-[32]. That decision was upheld on appeal: Quall v Northern Territory of Australia [2009] FCAFC 157; (2009) 180 FCR 528 (Quall FC).

71    McKerracher J then considered whether the same parties were involved in the two proceedings. His Honour found that it was sufficient that the parties between whom the estoppel was raised (the WGTO claim group and the State) were parties in each of the matters. Simply because additional parties were involved in the second proceeding did not preclude the operation of issue estoppel. In addition, the fact that the WGTO claim had been consolidated with the NY claim in part (among others) did not detract from the commonality as to the identity of parties: see [33]-[38].

72    McKerracher J then considered whether the determination of the WGTO claim group’s status in Daniel was essential to the determination of the native title question in relation to undetermined areas in issue in the WGTO claim. His Honour noted the statutory definition in s 223(1) of the NT Act was ‘clearly the crucial question and the starting point’. His Honour then discussed the relevant case law, in particular Yorta Yorta. His Honour at [52] stated:

In summary [the WGTO] did not establish that it was a cognatic group and did not establish that it was a traditional group in any other sense. Without establishing that there had been a society which has had a continuous existence since sovereignty, it was impossible to satisfy the definition of native title in s 223(1) of the NTA. (References omitted)

73    His Honour indicated at [53] he was of the view that “there is no scope for contending that the issue determined in Daniel will be different in any future proceedings”. However, he noted that the “primary thrust” of the WGTO claim group submissions was that no “finding” or no “solemn finding” was made in Daniel.

74    The main issue before McKerracher J was therefore whether Daniel relevantly made a “finding” in terms for which the State contended. If there was no ultimate finding, there could be no issue estoppel. In addressing this question his Honour first considered the relevant authorities noting at [63], [71], [73] and [75] that:

    “in finding whether or not something has been solemnly found against a party, the form of the first proceeding, particularly the issues joined or admitted on the pleadings will be important”;

    the essential task is to distinguish between those matters that were “fundamental to the decision or necessarily involved in its legal justification or foundation from matters” which were not “in point of law the essential ground work of the conclusion”;

    “conclusions reached about ultimate facts as distinct from evidentiary facts must necessarily be findings. That does not necessarily conflict with the observation that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged.” It is a matter of examining the real issues in dispute.

    the question of whether reasons for a decision create an issue estoppel cannot be determined “simply by referring to a few words in an extremely lengthy judgment”.

75    In analysing the issues before the trial judge in Daniel, McKerracher J said at [75] that there was “no doubt that positive findings of fact on the critical issue were made against [WGTO] in Daniel. The Full Court similarly had no doubt on that issue”. His Honour went on to find at [76] that:

Importantly the central reasoning behind the decision in Daniel was that [WGTO] did not hold native title over any part of the [NY] claim area because [WGTO] was not a group capable of holding native title. Far from being peripheral in any sense, this was the first and fundamental issue that his Honour had to decide and it was decided clearly against [WGTO].

76    His Honour found that this “fundamental finding” also disposed of the suggestion that “different issues may arise” in relation to the town sites because, “[t]here is no geographical element attached to the central determination in Daniel”: see [77].

77    Furthermore, McKerracher J thought at [80] it “doubtful” there was “room for any discretionary factor” to operate in relation to issue estoppel. However, if there was, then the doctrine underlying issue estoppel was relevant. His Honour found that the WGTO claim group assertion that they formed a society that existed continuously since sovereignty had been “exhaustively and extensively ventilated” in previous hearings, and all that that entailed would be “wasted if the [WGTO] were permitted to progress the present claim”. His Honour further noted that there is “a real interest in achieving finality of litigation”, and it would be “an undesirable conflict” if a judge hearing future proceedings reached a different conclusion from that reached by the trial judge in Daniel in relation to the “society” issue.

78    His Honour further found at [83] that registration of the WGTO claim on the Register of Native Title Claims was irrelevant to the question of issue estoppel because this was an administrative act that involved “no real assessment of the merits of the claim.”

79    The WGTO sought to read additional affidavit material in support of their contention that there is a proper foundation now, supported by genealogical research, to conclude that there is evidence of the requisite element of their existence at sovereignty and their continuity as a group. McKerracher J refused to allow the admission of this “new material” as his Honour was of the view that it would defeat the purpose of the doctrine of issue estoppel if, on any occasion on which it were raised, it were open to the party opposing the issue estoppel argument to contend that it would run its case differently at a later time and in a different proceeding.

80    As the Court concluded the matter on the basis of issue estoppel, it was not necessary for McKerracher J to rule on the alternative argument that it was “highly implausible” the WGTO claim group could establish native title over the town sites. However, his Honour noted that, had it been the only argument, he would have been less inclined to summarily dismiss the claim on that basis. His Honour observed that “serious” implausibility or improbability fell “a little short of the mark” required for the purposes of O 20 r 4 of the FC Rules on the ground that no cause of action was disclosed.

81    Finally, in relation to the declaration sought by the State in relation to Dampier, McKerracher J found that as the senior counsel for the WGTO made it clear that there is no claim in respect of this area, it was unnecessary for any declaration to be made.

CONSIDERATION

82    It is convenient to say a little more, at this stage, about the course the appeal took. Senior counsel for the WGTO developed an argument that the principle of issue estoppel had no role in applications for native title determination. On the other hand counsel for the State and senior counsel for the KM claim group, amongst others, submitted it did and that McKerracher J had correctly concluded it had been engaged in the present proceedings. At one point senior counsel for the KM claim group submitted the estoppel operated in favour of that group even though they had not been respondents to the NY consolidated proceedings.

83    It was apparently on the basis of exchanges between the Court and counsel on that issue during the course of the submissions made on behalf of the KM claim group that an argument appeared to be advanced that the proceedings could have been dismissed by McKerracher J for reasons founded not on issue estoppel but rather abuse of process. It was not disputed that the basis for the summary dismissal application as it had ultimately been developed before McKerracher J had not included a ground based on an abuse of process.

84    Towards the conclusion of the hearing of the appeal, this Court raised with the parties the question of whether the argument apparently put by senior counsel for the KM claim group involving an abuse of process was an argument to be relied upon in the appeal notwithstanding that it was neither an argument advanced before McKerracher J nor relied on by his Honour. In the result, as earlier noted, we gave the KM claim group leave to file a notice of contention and submissions in support and the opportunity for other parties to file responsive or opposing submissions. We intended that these submissions would address the question of whether it was appropriate, in the circumstances, to allow the KM claim group to file the notice of contention and thus advance an argument in the appeal that was not put below based on a ground not relied upon by the State as the moving party before McKerracher J.

85    It is necessary to resolve the threshold question of whether the parties supporting the order made by McKerracher J can do so by reference to a ground raised only in a notice of contention and not advanced before his Honour. Understandably, the WGTO resist this course being followed. Importantly, however, they have not submitted that, had the application for summary dismissal been advanced before McKerracher J on the ground now sought to be relied upon, different or additional evidence would have been led though they noted that his Honour “did not properly consider the new affidavits relied on by the appellants”. We return to this latter question shortly. Observations by the High Court in Park v Brothers [2005] HCA 73 suggest that it is appropriate to determine whether a notice of contention ought to be allowed in an appeal raising a ground not argued below in the same way a court determines whether a ground of appeal can be argued although not advanced below. The Court observed at [34]:

This was not a case in which there were formal pleadings. Nevertheless, the issues at trial were formulated by Points of Claim and particulars, understood in the light of affidavit evidence to which they referred, and by the conduct of the proceedings on behalf of the parties by their legal representatives. As was pointed out in Whisprun Pty Ltd v Dixon, even when there are pleadings, to determine whether a party is raising a new point on appeal the actual conduct of the proceedings must be considered. In adversarial litigation, as a general rule, a party is bound by the conduct of his case. There are circumstances in which the interests of justice may lead an appellate court to permit a party to raise a point that was not taken at trial, but where the point is one that could have been met by calling evidence below then it cannot be raised for the first time on appeal. (References omitted)

86    In our opinion, the KM claim group should be given leave to file and rely on the notice of contention and, to the extent necessary, time is extended for that purpose. It raises a point of substance and no prejudice is occasioned to the WGTO if the point is now argued. The only possible prejudice would be if we were to take the approach of McKerracher J in relation to the further affidavits the WGTO seek to rely on. However given that the appeal now raises not only the issue estoppel argument but a ground based on abuse of process, it is appropriate to have regard to these further affidavits. Their contents are discussed later in these reasons.

87    Accordingly the appeal raises, potentially, two issues. The first was whether the application should have been dismissed summarily because WGTO was estopped from arguing that the claim group was a cognatic kin group and the application was thus doomed to fail. The second was whether for substantially similar reasons, the application should have been dismissed as an abuse of process. We note, at this point, that McKerracher J made three orders (as set out earlier). The first was that the State’s notice of motion for summary dismissal be allowed. The precise legal effect of this order is perhaps a little obscure, but what his Honour intended was made clear by the second order which was that the WGTO application be dismissed. The third order concerns costs. The order with an operative legal effect against which this appeal is brought is that the WGTO application be dismissed. Accordingly, this Court is being invited to set aside that order by resolving both issues in favour of the WGTO on the one hand or uphold the order by resolving one or both issues in favour of the respondents on the other.

88    We have decided that the WGTO application constitutes an abuse of process and McKerracher J was correct in making the order he did dismissing the WGTO application. While we entertain real doubt that issue estoppel has any field of operation in applications for native title determination, it is unnecessary to resolve that legal question. We shortly explain why we doubt that issue estoppel has any application in proceedings of the present type.

89    However we should first say something about the judgment of the Full Court in Quall FC which McKerracher J relied on, as have the respondents in this appeal. In that appeal, no suggestion was made that issue estoppel had no application in relation to native title cases. The appeal proceeded on the assumption that it did. The applicability of the principle was not in issue. Indeed it is faintly apparent from the reasons of the Full Court at [37] that a question might arise about the applicability of the principle given that the parties in whose favour the principle was said to operate had not all been parties to the earlier proceedings in which the issue founding the estoppel had been decided: see Risk v Northern Territory of Australia [2006] FCA 404. The Full Court there observed:

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.

90    Our significant reservations about the applicability of issue estoppel to native title claims rest on the statutory framework which establishes the procedures for hearing such application and the character of any determination itself if ultimately made. When considering in proceedings whether an issue estoppel might arise, any statute underpinning the proceedings can be important.

91    As Gummow J observed in Re Pollard; Ex parte Lensing Management Co Pty Limited (1991) 33 FCR 284, a matter arising under the Bankruptcy Act 1966 (Cth):

The term “estoppel” has been described as a label which covers a complex array of rules spanning various categories: The Commonwealth of Australia v Verwayen (supra) per Mason CJ at 409. But what the various species of estoppel have in common is that they are the creatures of the common law or equity (or both) and as such must operate consistently with the terms of any statute which has an impact upon the controversy in the course of which reliance is placed upon an estoppel; Walsh v Commercial Travellers’ Association of Victoria (1940) VLR 259 at 268-269, G Spencer Bower and AK Turner, pp 139-142. Accordingly, it is necessary in the present case to look more closely at the statutory setting which both creates and controls the “matter” in relation to which the creditor takes the estoppel point.

92    Under the NT Act any application made under s 61 might be the subject of an order under s 67(2), (as set out earlier), with the result that part of that application together with other applications (or parts of them) concerning the same area are dealt with together. Experience tells us that this is common, as occurred in the present case. The effect of an order under s 67(2) will typically be to create separate proceedings concerning a particular area with respondents which are only a subset of the respondents to the initial application or applications on which the order operates. Any determination made concerning the area will bind the world at large. It is, in effect, a judgment in rem: see Wik Peoples v Queensland (1994) 49 FCR 1. The determination will bind persons beyond parties to the proceedings. Because of the special characteristics of a judgment in rem, it operates outside the usual field of operation of the principle of issue estoppel requiring, as the latter does for its engagement, that the same parties (or their privies) were parties in the proceedings in which the issue was earlier determined. That is, a judgment in rem involves the determination of the status of the person or thing and binds the world at large and not simply the parties to the litigation: Re Lawrence: Ex parte Burns (1985) 9 FCR 9 and Wall v the King; Ex parte King Won (No 1) (1927) 39 CLR 245 at 291 per Isaacs J.

93    Even accepting, as McKerracher J noted, that the principle can operate in relation to some but not all parties to a proceeding, it is difficult to see how it can operate in that way in relation to proceedings under the NT Act. Assume, as contended in these proceedings, that an issue was resolved in earlier litigation between the State and the WGTO raising an issue estoppel between those parties but which had not been resolved as against other parties such as the KM claim group. It is not as if the State can then, on the strength of that estoppel, obtain judgment in its favour while leaving other parties who are not the beneficiary of the estoppel to contest the issue. The capacity of a party in ordinary litigation to obtain judgment in its favour leaving unaffected the resolution of rights between other parties to the same litigation underpins the proposition mentioned to by McKerracher J referring to Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 that an issue estoppel can operate to the benefit of some though not all parties to particular litigation. That cannot happen, as we see it, in proceedings under the NT Act. That is, as earlier discussed, because the ultimate judgment (the determination) does not operate against named parties. It is not possible to give judgment in this context against a party relying on the estoppel and not against another party who cannot rely on the estoppel and fails on the issue on which the estoppel could have otherwise operated.

94    Before explaining why we have concluded that the prosecution of the remainder of the WGTO claim is an abuse of process, it is necessary to refer to the additional affidavit evidence relied on by WGTO. The additional affidavit material which McKerracher J was asked to consider falls into two categories. The first category is material aimed to show that there is a genealogical link between the Hicks and Ramirez families, and the second category is material aimed to show that Tim Douglas practices the traditional law and custom of the area. Both categories of evidence were directed to demonstrating that the findings of the trial judge in Daniel were factually wrong, even if justified on the evidence produced to him.

95    Four affidavits were filed on the issue of the genealogical link, namely affidavits sworn by Rory O’Connor, Vincent Lockyer, Betty Dale, and Phyllis Ramirez. Mr O’Connor is the anthropologist who prepared a report for the WGTO which was tendered in Daniel. The report advanced the case of a genealogical link between the Hicks and Ramirez families constituted by the fact that Charlotte Lockyer, who married Jack Hicks, was the sister of Nyungurtu whose descendants included the Ramirez family. The trial judge did not accept that this link had been made out.

96    Mr O’Connor has prepared a further report which is exhibited to his affidavit. In the introduction to his further report he explains that he was briefed by solicitors for the WGTO to conduct further research into the relationship between the Hicks and Ramirez families in view of the rejection by the trial judge in Daniel of that link.

97    The report concludes that there is a genealogical link between the Hicks and Ramirez families. It is now said, not that Charlotte Lockyer was the sister of Nyungurtu, but rather that Charlotte’s mother, Nibbin who was also called Miggibung or Niggibung, was the sister of Nyungurtu. The evidence before the Court on which Mr O’Connor relies is contained in three other affidavits and a genealogy exhibited to his affidavit.

98    In his affidavit, Vincent Lockyer explains that he has collected the history of his branch of the Lockyer family through library research and discussions with members of his father’s generation. Mr Lockyer is the great-great-grandson of George Brookes Lockyer who was born in 1846. He came to Roebourne in 1865 and later set up Cooya Pooya Station. Mr Lockyer explains that the genealogy sheet held by him indicates that George Brookes Lockyer died in Roebourne in 1893 and was unmarried. The Battye Library records confirm these facts. George Brookes Lockyer had two Aboriginal women partners – Mabel and Nibbin. Mr Lockyer sets out in his affidavit the offspring from each of the unions of George Brookes Lockyer with Mabel and with Nibbin. His affidavit concludes with the statement that “Miggibung had a sister whose name was Nyungurtu.” He also said that Nyungurtu had a daughter called Karipang and Karipang married Walter Frances and was known as Carrie Francis. Mr Lockyer does not refer to any reason why he did not give evidence in Daniel.

99    Phyllis Ramirez tells in her affidavit that she was born in 1938. Her mother was Elsie Francis who married Arthur Ramirez. Elsie Francis was the daughter of Karipang and was born in 1906. Mrs Ramirez has a brother, Ernie, and the family lived in Roebourne. Mrs Ramirez tells that she spent a lot of time with her grandmother Karipang. Karipang was a tribal woman who followed traditional laws and customs very strictly. As a result she would not say the name of the dead. She did not tell Mrs Ramirez the name of her mother, but Mrs Ramirez heard from others that the name was Nyungurtu. Mrs Ramirez states:

Grandmother Karipang did tell me on a number of occasions that we were related to the Hicks family through the wife of Jack Hicks, Charlotte Lockyer. She did not tell me the name of Charlotte’s mother, as that would also have been calling a dead person’s name.

100    Again, Mrs Ramirez does not explain why she did not give this evidence in the trial in Daniel. The only witness who did give evidence before the trial judge on the issue was her brother, Ernie Ramirez.

101    Betty Dale says in her affidavit that she was about 75 when she swore her affidavit in 2009. She grew up around Roebourne. She explains how she knew and met Charlotte Lockyer as follows:

I knew Winningbung, who was also called Charlotte Lockyer. I was a young woman with children of my own when she died. She was married to Jack Hicks who lived with her and their children on Karratha Station. She was a tribal woman who followed our law and culture. Jack Hicks had a son named Fred, who was married to my mother, Molly Thomas. I had two mothers, Molly Thomas and Alice. In my law and culture, which is very different to the white person’s law and culture, a woman calls all of her daughters koondal and they all call one another maari. All maari call the koondals of their grandmother nganga. That is, I had two nganga, Molly Thomas and Alice. I walked from Andover on the Harding River near Roebourne, where I lived to visit my mother Molly in Karratha Station on many occasions and talked often to her and to her mother-in-law Winningbung. Winningbung told me her mother was Miggibung, who was born before white people came to our country.

102    Mrs Dale also explains that she knew Karipang who lived in Roebourne. She visited Karipang on many occasions. Karipang would not say her mother’s name but Mrs Dale heard from others that Karipang's mother was called Nyungurtu. Mrs Dale concludes as follows:

Winningbung and Karipang told me that their mothers settled on Cooya Pooya Station and that that is how they come to be known as Cooya Pooya people. They told me that they were maari, or sisters. Both of their mothers called them koondal, or daughter. That is because their family settled on Cooya Pooya Station and their two nganga or mothers were sisters, or maari. This is the way it is in our law and culture: if there are two sisters, all of their children are shared between them and they call them all sons and daughters. That is why Karipang and Winningbung called one another sisters. I understand that in white man’s law and culture Karipang and Winningbung would be called cousins, but to us they were sisters.

103    Mrs Dale gave evidence in Daniel but did not give evidence about the genealogical link between the Hicks and Ramirez families.

104    Two aspects of the affidavit of Mr O’Connor should be referred to. First, Mr O'Connor exhibits to his affidavit a genealogy of the Lockyer family prepared by Jim De Turt in 1999-2000. Mr De Turt's father married Gladys, the daughter of Elsie and Arthur Ramirez. Elsie was the daughter of Karipang. Mr O'Connor traced Mr De Turt to the United States and phoned him in April 2009. Mr O’Connor states that Mr De Turt:

…confirmed that Karipang was related to Charlotte Lockyer through Charlotte's mother Nibbin/Miggibung. He stated that he had previously believed from the oral history records that Karipang was a sister to Nibbin/Miggibung, but had subsequently realised, as a result of further analysis of this data, and dates of birth, that it was in fact Karipang’s mother, Nyungurtu who was Nibbin/Miggibung’s sister.

Mr O’Connor appears to rely on this conversation to demonstrate that Nyungurtu and Miggibung were sisters. The written genealogy does not show this. It sets out the descendants of George Brookes Lockyer’s union with Nibbin including Charlotte but it says nothing about any relationship between Nibbin and Nyungurtu.

105    Second, in an oblique explanation for the additional genealogical material, Mr O’Connor states the following in the introduction to his report used to support the present case:

As background, it is here noted that an Anthropological Report on the Wong-Goo-Tt-Oo Application for Determination of Native Title was prepared by R O’Connor in March 2000. That report was prepared under inadequate time and resources constraints. The Expert Witness Declaration fronting the report read as follows. As noted in the Preface to my report, the Wong-Goo-Tt-Oo native title applicants have been denied funding by the Aboriginal Affairs authorities. Accordingly, my research was not in any sense adequately funded. I was able only to devote six weeks to this work: two weeks in the field; two weeks reading and assembling information; and two weeks preparing Volume One of this report. It would be therefore simply ludicrous to suggest that I have made all investigations and inquiries possible in regard to this research. The following declaration is therefore submitted against this background.

106    The other matter addressed by the affidavits concerned Tim Douglas and the practice of traditional law and custom. Four affidavits are relied on in respect of this matter.

107    Tim Douglas deposes that he is senior Law man at the Woodbrook Bidara Law ground outside Roebourne. He says that he, with other elders, determines when the Law ground is to be opened and who is to go through Bidara Law there. Mr Douglas explains that he is recognised by the senior law men at the Warralong Law ground near Port Hedland. They are called the Warrarn group and the senior Law men are Monty Hale and Bruce Thomas. They, with other elders, decide when the Warralong Law ground can be used. Only they can say when it is time for the Law to take place. Monty Hale carried out the same duties in Warralong as Mr Douglas carries out in Woodbrook. But he has now passed on this role to younger men. Mr Douglas attended ceremonies at Warralong and was recognised as a senior Law man in the region. All the Aboriginal communities in the Pilbara accept these laws and customs concerning the Law grounds.

108    Monty Hale and Bruce Thomas both swore affidavits in nearly identical form. They confirm that they were senior Law men for the Warralong Law ground and that Tim Douglas is the senior Law man for the Woodbrook Law ground. They also tell that the Law grounds cannot be used without the decision of the senior Law men. They explain that Tim Douglas has been welcomed at their ceremonies and they have been welcomed at his. They do not explain why they did not give evidence before the trial judge in Daniel.

109    Arthur Flatfoot deposed to his responsibility to see that his late brother’s son went through the Law. He wanted him to go through Bidara Law. The Law ground at Cane River had fallen into disuse and it was necessary for the senior Law man of the region to reopen it before the ceremony could take place there. Tim Douglas is the senior Law man in charge of Bidara Law at Woodbrook Law ground. No ceremony can occur there unless he opens the Laws ground and says which boys are to go through the Law. As there were no other functioning Bidara Law grounds in coastal Pilbara, Tim Douglas is the senior Bidara Law man. Mr Flatfoot asked him, in that capacity to open the Cane River Law ground to enable the ceremony for the boy to go through the Law there. Mr Flatfoot did not give evidence before the trial judge in Daniel and does not refer to any reason why he did not do so.

110    What can be seen in this review of the further affidavits together with our earlier discussion of the evidence before the trial judge in Daniel is that the earlier evidence concerning whether the WGTO claim group was a cognatic kin group was not focused only on the circumstances of the WGTO claim group in the NY consolidated claim area considered by his Honour. Rather, it was evidence that apparently applied to establishing (but unsuccessfully so) the existence of the WGTO claim group as a cognative kin group who held at settlement and have continued to hold native title rights and interests generally in the broader area which was the WGTO claim area, including that part which became part of the NY consolidated claim area. It was not evidence confined only to that part of the wider WGTO claim area which had been consolidated into the NY consolidated claim area. The further affidavits do not seek to demonstrate that a different position obtains because of facts arising outside the NY consolidated claim area in the remainder of the WGTO claim area. The additional affidavits, rather than drawing any distinction about the current or historical status of the WGTO claim group between the NY consolidated claim area and the present WGTO claim area, treat the whole of those two areas (previously the wider WGTO claim area) in the same way. There is no explanation why the additional affidavit evidence was not adduced before the trial judge in Daniel. To a large extent, the additional affidavits are really little more than a repetition of what was said in evidence in Daniel although now perhaps with a little more detail.

111    It is our view that, in substance, the WGTO essentially seek to have the same issue as determined in Daniel determined differently in the present WGTO claim. Its attempts to do so constituted, in our opinion, an abuse of process.

112    The reach of the power to dismiss proceedings as an abuse of process in the interaction of that power with principles such as res judicata, issue estoppel and Anshun estoppel was helpfully discussed by French J in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59] and following. It is a lengthy passage but warrants revisiting in full:

59    The Federal Court, like every Court of Justice, has an implied incidental power to prevent abuse of its processes. There are many ways in which the processes of a court may be abused. One form of such abuse is to invoke the procedures of the court to attempt to relitigate controversies which have already been decided by the court. The court may be protected against such use of its procedures by the doctrines of res judicata and issue estoppel and their analogical extension to issues which ought reasonably to have been litigated in original proceedings as enunciated in Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 and Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

60    The protection afforded the administration of justice by the general concept of abuse of process in this context subsumes that afforded by the specific doctrines of res judicata, issue estoppel and their Anshun extension. In Reichel v Magrath [1889] 14 App Cas 665 a vicar who had resigned from his benefice and failed in proceedings for a declaration that his resignation was void and that he was still in office. His successor brought proceedings for a declaration that he was vicar and claimed associated injunctive relief. The former vicar sought to defend the proceedings on the basis that he retained the benefice. His defence was struck out. The decision to strike it out was upheld in the Court of Appeal and in the House of Lords where Lord Halsbury said (at 668):

‘My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.’

And further:

‘I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.’

The other Law Lords agreed.

61    Reichel v Magrath was decided upon abuse of process grounds. It was not based upon any finding of res judicata or issue estoppel although as observed in Spencer, Bower and Turner, ‘Res Judicata’, 3rd Edition (Butterworths 1996) at 444:

‘It would appear that the issue was res judicata, because the earlier decision was in rem, and the plaintiff was a privy of the successful parties, but this has not affected the vitality of the principle applied by the House.’

Commenting upon an argument that Reichel v Magrath could have been decided upon res judicata grounds on the basis that the first decision was in rem, Handley JA said in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 (at 202):

‘... the availability of a narrow ground for decision does not displace the actual ratio if the court decides the case on a wider basis.’

And as his Honour noted, Reichel v Magrath has been followed in Walton v Gardiner (1993) 177 CLR 378 (at 393) and Rogers v R (1994) 181 CLR 251 (at 287-288).

62    The breadth of abuse of process protection against attempted relitigation was considered in Walton v Gardiner per Mason CJ, Deane and Dawson JJ (at 393):

‘... proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.’

Their Honours cited Reichel v Magrath and Connelly v Director of Public Prosecutions [1964] AC 1254 at 1361-1362.  They also adopted and approved the description of the relevant jurisdiction of superior courts given by Lord Diplock in Hunter v Chief Constable of the West Midland Police [1982] AC 529 (at 536):

‘... the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.’

The category of ‘right-thinking people’ is elusive. However the passage may be taken as emphasising that the task of the judge in such a case is evaluative.

63    In Rogers v R, a majority of the High Court, comprising Mason CJ, Deane and Gaudron JJ, held that the tender of records of interview at a criminal trial which records had been rejected as involuntary at another trial on other charges, would be an abuse of process. Mason CJ said (at 255):

‘The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party’s genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories.  Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.’

64    The doctrines of res judicata and issue estoppel can be regarded as serving a public policy which protects against abuse of process by supporting the finality of judicial dispositions of particular controversies.  Those doctrines establish the most precisely defined circumstances in which relitigation will be identified and barred. Anshun introduced an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings. In that case, which involved an attempt to litigant as a plaintiff, a matter which could have been raised in the defence in earlier proceedings, the majority, Gibbs CJ, Mason and Aicken JJ, said (at 602):

‘In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.’

65    The application of that principle requires the evaluative judgment whether it would have been ‘reasonable’ to have raised in the first proceedings the matter now raised in the second. That represents a development of the principle expressed by Wigram VC in Henderson v Henderson (at 319): 

‘..., in litigation, requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.’

As the Full Federal Court said in Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 (at 295), the principle is allied to, but not co-extensive with, res judicata and issue estoppel. The Court applied the approach of the New South Wales Court of Appeal in Rahme v Commonwealth Bank of Australia (unreported, Court of Appeal, NSW, 20 December 1991) that the effect of Anshun is to apply the Henderson principle to a second proceeding where ‘it was unreasonable for the party asserting the cause of action in that second proceeding to refrain from raising it in the earlier proceeding against the same opponent party’. The unreasonableness criterion was also applied in Ling v The Commonwealth (1996) 68 FCR 180 at 195 (Sundberg J, Wilcox and Whitlam JJ agreeing).

66    The doctrines of res judicata, issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted relitigation of a dispute already judicially determined. As another Full Court said in Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 (at 443):

‘An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding did not give rise to a res judicata or issue estoppel: see Sea Culture International v Scoles (1991) 32 FCR 275 at 279 and Walton v Gardiner (1993) 177 CLR 378 at 393-394. Whether it does depends on the facts of the particular case.’

67    The considerations of public policy which underlie res judicata and issue estoppel help to define the scope of abuse of process by relitigation generally. As Lord Hoffman said in Arthur JS Hall & Co v Simons [2000] 3 WLR 543 at 572, the underlying policies are that a defendant should not be troubled twice for the same reason and that there is ‘a general public interest in the same issue not being litigated over again’. Lord Hoffman observed that the second rationale could be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the parties within the spirit of the rule. In that regard he referred to Reichel v Magrath and Hunter v Chief Constable of the West Midland Police.

68    In Johnson v Gore Wood & Co [2002] 2 AC 1 (at 31), Lord Bingham referred to what he called ‘Henderson v Henderson abuse of process’ as separate and distinct from cause of action estoppel and issue estoppel although having much in common with them:

‘The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.’

The judgment required in such cases was described by Lord Bingham as (at 31):

‘... a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.’

The other Law Lords agreed with Lord Bingham on the abuse of process question.

69    The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts – Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas  (1994) 48 FCR 535 (at 545 Carr J).

70    The power to strike out a statement of claim or to dismiss an application as an abuse of process is to be exercised sparingly and upon an examination of the relevant circumstances of the particular case before the Court. As Giles CJ said in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (at 64, 089):

‘... whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate a issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice...’

His Honour set out a non-exhaustive list of matters relevant to the determination whether there was an abuse of process in connection with the issue to be litigated in the second proceedings. These factors were:

‘(a)    the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b)    the opportunity available and taken to fully litigate the issue;

(c)    the terms and finality of the finding as to the issue;

(d)    the identity between the relevant issues in the two proceedings;

(e)    any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –

(f)    the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g)    an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.’

These considerations offer a non-exhaustive guide and an indication of the nature of the Court’s task in such cases.

113    We do not understand more recent decisions of the High Court concerning an abuse of process to derogate from the force of this discussion: see Batistatos v Roads and Traffic Authority of New South Wales 226 CLR 256 and PNJ v R (2010) 252 ALR 612.

114    Litigation of native title disputes or issues is very often a time-consuming and resource demanding process. Those demands are made of the parties and the Court alike. Applicants have the protective benefit of s 85A of the NT Act in relation to costs. In our view, WGTO should not be permitted to relitigate the issue determined against them in the Daniel proceedings. Its attempts to do so in this matter constitute an abuse of process. The appeal should be dismissed.

Associate:

Dated:    31 March 2011