FEDERAL COURT OF AUSTRALIA

State of Western Australia v Fazeldean on behalf of the Thalanyji People (No 2) [2013] FCAFC 58

THE COURT ORDERS THAT:

1.    (Made on 13 May 2013) Application for leave to appeal be dismissed.

2.    Costs of the State and the claim group in the application be costs in the underlying proceedings.

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

REASONS FOR JUDGMENT

THE COURT

1    The State of Western Australia applied for leave to appeal from a judgment of the Court in which the primary judge rejected an application by the State for dismissal of an application for a determination of the existence of native title as an abuse of process. The application for leave was heard concurrently with argument on the appeal. At the conclusion of the hearing on 13 May 2013, the Court made an order dismissing the application for leave to appeal, with reasons therefor to be delivered later. These are those reasons, in which we also deal with costs.

2    The respondents have made two applications for native title determination. The first, (“Thalanyji No 1”) was lodged with the National Native Title Tribunal in 1996. The second, (“Thalanyji No 2”) was authorised by the claim group on 17 September 2008.

3    On 18 September 2008 (that is, one day after the claim group authorised the second application), the Court (constituted by North J) made a consent determination in Thalanyji No 1; see Hayes on behalf of the Thalanyji People v State of Western Australia [2008] FCA 1487. Thalanyji No 2 was lodged with the Court on 6 May 2010.

4    The essential fact to appreciate for this application is that land dealt with in the orders in Hayes (that is Thalanyji No 1) is also the subject of Thalanyji No 2. The structure of the orders in Hayes was based on a Minute of Proposed Consent Determination of Native Title. In what might be termed the recitals to that Minute, this Court noted: that the area the subject of the application included land and waters covered by another application in proceeding WAD 126 of 2005, ie, the so-called PKKP#2 application (see paragraph B); and that the parties to Hayes had reached agreement as to the existence of native title and to the terms of the proposed determination in relation to most of the land and waters, which was described in the relevant schedule to the proposed determination (see paragraph C). Importantly, paragraph D recited the following:

The Applicants in the Thalanyji Application have agreed to the dismissal of their application in respect of the balance of the land and waters the subject of the Thalanyji Application (the “Excluded Area”). The parties have agreed that no determination is to be made over the Excluded Area. The Excluded Area includes the land and waters of the PKKP #2 Application which geographically overlaps the area of the Thalanyji Application, certain land and waters in the north-eastern portion of the Thalanyji Application and those land and waters seaward of the mean low water mark.

There were thus three parts to the “Excluded Area”: the area in the PKKP #2 application that overlapped; a north-eastern portion; and the land (that is, islands) and waters seaward of the mean low water mark.

5    Further, in paragraphs F and G, the following was stated:

F.    Pursuant to section 87(1)(a)(ii) and section 87(1)(b) of the Native Title Act 1993 (Cth) the parties have filed with this Court an agreement in writing setting out the terms of the agreement reached.

G.    The terms of the agreement involve the making of consent orders for a determination pursuant to section 87 and 94A of the Native Title Act 1993 (Cth) that native title exists in relation to the Determination Area as set out in the attached Determination.

6    The relevant orders of the Court made pursuant to the Native Title Act 1993 (Cth), s 87, were as follows:

1.    In relation to the Determination Area, there be a determination of native title in WAD 6113 of 1998 in terms of the Minute of Proposed Consent Determination of Native Title attached.

2.    In so far as WAD 6113 of 1998 relates to land and waters outside the Determination Area, WAD 6113 of 1998 is dismissed and no determination is made in relation to the land and waters comprised in that area.

7    The Thalanyji No 2 application is directed to, and claims native title over, some of the land the subject of order 2, being what is referred to above as the north-eastern portion, over which land the proceedings in Hayes were finalised by consent by a dismissal of the proceedings.

8    On 8 June 2012, the State applied to dismiss Thalanyji No 2. The primary judge dismissed that application on 23 October 2012; see Fazeldean on behalf of the Thalanyji People (No 2) v State of Western Australia [2012] FCA 1163. It is from these orders that the State sought leave to appeal.

9    The State pressed two grounds for its interlocutory application before the primary judge. Each ground was rejected. The first ground relied on an allegation that the claim was unregistered. That matter is not pursued on this application. The second ground, which is currently relevant, was that Thalanyji No 2 should be dismissed as an abuse of process, because the Thalanyji No 2 claim was over land the subject of the order for dismissal in Hayes.

10    There was a joint submission before North J in which the parties explained in paragraph 17 what the three parts of the area excluded from the determination related to. Sub-paragraph 17(a) covered the PKKP #2 application. It stated that after mediation of the overlap between the Thalanyji and PKKP #2 Applications, the former’s claim was to be “pulled back”. Sub-paragraph 17(b) concerned the land and water seaward of the low water mark. It stated that there was no evidence to support traditional attachment under Thalanyji law and custom to the sea or islands and that there was nothing in Thalanyji law and custom to suggest that Thalanyji forebears made or utilised sea craft to access the sea or the islands. Sub-paragraph 17(c) concerned the land the subject now of the Thalanyji No 2 application. It stated as follows:

The parties have agreed that the ethnographic evidence does not presently support a determination that the entirety of the land the subject of the Thalanyji Application was traditionally Thalanyji country. Considered in its totality the ethnography suggests that the northeastern coastal component of the Thalanyji Application was most likely the traditional territory of the Nhuwala people Therefore, the State and the Applicants agree that the existence of native title rights and interests by the Thalanyji over this component of the Thalanyji Application cannot be recognised in the Minute.

However, the State and the Applicants acknowledge the possibility that there may exist surviving Nhuwala descendants who may, at some stage in the future, assert a relationship with this country. Consequently, the parties are not seeking a determination that no native title rights and interests exist in relation to this portion of the Excluded Area. Rather, the parties have consented to the dismissal of the Thalanyji Application over this area, leaving open the possibility for a potential new claim to be filed and argued on the basis of a continuing Nhuwala connection, should any Nhuwala people come forward in the future.

11    Order 2 was made in respect of all three parts of the Excluded Area. The expression in the joint submission can be seen to recognise that the Thalanyji had no basis to claim the area of land covered by the PKKP #2 Application and the sea and land seaward of the low water mark. The expression of the matter concerning the third area (relevant for present purposes) can be seen to be somewhat ambiguous. The joint submission concerning this third area can be seen to make the following points:

    available ethnographic evidence did not presently support a determination that all the land in Thalanyji No 1 was traditionally Thalanyji country;

    the ethnography suggested that the relevant excluded area was most likely the traditional country of the Nhuwala people;

    there remained the possibility that Nhuwala people may wish to assert native title rights with respect to the relevant excluded area.

12    In his reasons, the primary judge said at [40] that:

…this is not a case where one can conclude with sufficient confidence that the formal dismissal of the balance of the Thalanyji (No 1) proceeding as part of the consent determination of part of the original claim area had the legal effect of shutting out the possibility in the future of the Thalanyji people making a native title claim in respect of the excluded area.

13    Also at [40], his Honour said:

I accept that when one focuses on certain aspects of the background research and the communications between the parties, and what was said in the joint submissions, there are reasonable grounds for thinking that at material times when the consent determination was made, the State was entitled to consider that the Thalanyji people were abandoning their right to pursue any further native title claims over the excluded area.

14    At [41] and [42], the primary judge observed that the relevant area was not excluded as a consequence of a contested hearing but as a result of confidential negotiations between the claim group and the State.

15    At [45], his Honour considered that he could not form the view that the Court in Hayes made the consent determination on the basis that the claimant group had abandoned its claim to the relevant excluded area. The primary judge noted that the position he had arrived at involved “a difficult judgment call”. Critically, his Honour said:

…if the parties had come to a clear agreement that the terms of the consent determination, including the dismissal of the balance of the Thalanyji (No 1) claim, was intended to completely shut out the same claim group from ever proceeding with a subsequent claim in respect of the area excluded from the consent determination, then it should have been clearly spelled out. In my view, it was not.

16    His Honour concluded at [46] that he did not consider that Thalanyji No 2 should be dismissed for abuse of process.

Leave to appeal

17    The principles in relation to the grant of leave to appeal are not in doubt: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 400; Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156 at [25] to [30]; and Bienstein v Bienstein (2003) 195 ALR 225 at 231[29].

The arguments of the parties

18    The argument of the applicant was brutal in its simplicity. The order made in Hayes was straightforward: it provided for the final dismissal of a claim to native title. No reservation was made under the then O 35 r 6 of the Federal Court Rules 1979 making the dismissal of the proceeding without prejudice to the ability of the applicant to bring another claim. So, it was submitted, the order put an end to the entitlement of this claim group to propound rights under the Native Title Act. The primary judge had, it was submitted, mistaken the proper test in concluding that the State had not demonstrated that the parties intended to abandon the claim over the land in question. Rather, the order was clear; it had the result of a final order; and the consequences were that the same claim under the Native Title Act could not be brought by the same claim group.

19    The respondent sought to support the primary judge’s reasons. In particular, it was sought to construe the order against the background of the joint submission before North J. In that context, it was submitted that the order should not be construed differently to the operation of an order drafted in accordance with O 35 r 6. Further, they submitted that orders and rules should not be employed to create injustice.

Resolution

20    This is a difficult case. The argument was founded on res judicata, not issue estoppel or so-called “Anshun estoppel”: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589.

21    Subject to the influence of legislation, the status of a judgment or order by consent is not in doubt: it is a res judicata. Lord Blanesburgh, speaking for the Privy Council (Viscount Sumner, Lord Carson and his Lordship) said in Kinch v Walcott [1929] AC 482 at 493:

…an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal.

22    In The Bellcairn (1885) 10 PD 161 at 165, Lord Esher MR said: “[a] judgment by the consent of the parties…is a binding judgment of the Court…”. See also at 166 (Cotton LJ and Lindley LJ).

23    In Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 502 at 508, Deane J, Toohey J and Gaudron J said:

The fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring action at a later date…But the principle of res judicata holds good in such a case.

24    The nature of a res judicata is a “decision pronounced by [relevantly here] a judicial … tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment.”: Handley KR, Spencer Bower and Handley: Res Judicata (4th ed, LexisNexis, 2009) at 1[1.01]. The notion of “once and for all” embodies the requirements that the judgment or order be final.

25    Where an action has been brought and judgment entered on the action, no other proceeding may be maintained on the same cause of action. If the cause of action was recognised to exist in the judgment, it merges in the judgment and no longer exists; if it was found not to exist, the unsuccessful party may no longer assert that it does: Jackson v Goldsmith [1950] HCA 22; 81 CLR 446 at 466; Anshun 147 CLR 589 at 597 and 610 ff; Chamberlain v Deputy Commissioner of Taxation 164 CLR at 508 and 510-511; Macquarie Bank Limited v National Mutual Life Association of Australia Limited (1996) 40 NSWLR 543 at 556-557; Carl Zeiss Stiftung v Rayner & Keeler Limited (No 2) [1967] 1 AC 853 at 964, approved in Anshun 147 CLR at 597.

26    In Carl Zeiss [1967] 1 AC at 964 Lord Wilberforce approved of the expression of the matter by Lord Denning MR in Fidelitas Shipping Co Limited v V/O Exportchleb [1966] 1 QB 630 at 640 as “a strict rule of law that [a party] cannot bring another action against the same party for the same cause”. In Anshun 147 CLR at 610 ff, Brennan J discussed the imprecision of the phrase “cause of action”. However, here, there can be no doubt that, whether or not what is being discussed is a right or the facts upon which a right is based, the very same rights under the very same Act based on the same asserted factual connection is now sought to be maintained as was claimed in the earlier proceeding which was dismissed.

27    In Minero Pty Limited v Redero Pty Limited (unreported, Supreme Court of NSW, 29 July 1998) Santow J discussed the nature of the operation of res judicata or cause of action estoppel when a consent order of the Court dismissing proceedings was made. Reference was made to the previous Federal Court Rules 1979, and, in particular, O 35 r 6. Santow J said the following:

The rule, if not expressly then at least by implication, proceeds on the premise that a dismissal order does not automatically preclude the party originally claiming relief from bringing a new action. Although reference is made in r 6(1) of the Federal Court Rules to the ability of the Court to order that a dismissal shall be “without prejudice to any right of the applicant or claimant to bring fresh proceedings or to claim the same relief in fresh proceedings”, this does not, in my view, mean that a dismissal which does not include such a “without prejudice” order results automatically in a bar to new proceedings being commenced. The Rule clearly proceeds on the basis that, should fresh proceedings be instituted, the fact that a previous dismissal order has been made need not necessarily prejudice such a fresh proceedings. Whether they are prejudiced, or indeed precluded, will depend on whether the parties intended a dismissal or disposal that was interlocutory or final, as manifested by the order made considered in its forensic context. A dismissal for want of prosecution clearly falls short of a final determination of the substantive proceeding.

28    The distinction being drawn by Santow J was between dismissals of proceedings that were not final, such as dismissal for want of prosecution, and dismissal of proceedings that were final. The relevance of the distinction is that for res judicata or cause of action estoppel to preclude the bringing of fresh proceedings, the judgment or order made must be final.

29    There is no debate here but that the orders made by North J were final, and intended to be such.

30    If a party asserts that the other is precluded from asserting a claim by reason of the principle in res judicata they can seek to have the proceedings dismissed as an abuse of process, seek an order for summary dismissal, plead the matter as a defence and have the issue disposed of finally, either as a separate question or after a full trial. The first two procedural mechanisms are summary in character, forestalling or preventing any hearing on the merits.

31    The appropriate course from the point of view of the parties, and of the Court, may depend on the circumstances.

32    Here, a number of considerations attend that decision and make it inappropriate to dismiss the proceedings in a summary fashion. First, it may be that the behaviour of the parties and the handling of the matter before the Court in 2008 would affect the proper construction of the orders. It may be that the limit or reach of the claim in geographical terms was objectively important to the negotiation.

33    Secondly, in respect of a negotiated settlement leading to a consent determination, it is important to give weight to an approach that supports and upholds the bargain of the parties that saw difficult litigation settled.

34    Thirdly, litigation under the Native Title Act is not ordinary private inter partes litigation. Sought to be vindicated are rights of a communal nature based on occupation and a physical and spiritual connection between land and people that has endured for possibly millennia. The vindication is not only for the living in the claim group, but for their ancestors and for generations to come. How that context affects the operation of principles such as res judicata under or in the context of the Native Title Act is a large question, and is one of great importance. Such a question is not apt to be disposed of on a summary application.

35    Fourthly, and related to the last point, is the possible relationship between the strength of the evidence of the claim group’s connection with the land and the position of the State in the litigation. The State is the polity whose residents make the claim of historical connection with land. If that connection evidence were strong, an issue might arise as to the content of the legal obligation of the State in how it approached a claim for res judicata, based as it is on a procedural step that may have been a product of mistake or ignorance. Should the State approach a claim of such historical and future importance by reference to the drastic consequence of res judicata in the circumstances of the order having been brought about? The answer to that question might fashion the development of a rule of law qualifying the principle of res judicata in the context of this type of claim between these parties under the Native Title Act. The answers to these questions may involve a conclusion of the position of the State informed by notions of trust, good faith, informed recognition of the deep importance of the vindication of proven historical connection affecting generations past, present and future. The exercise of power to terminate proceedings summarily should be attended with caution; in particular, the development of the law should not be stultified by such exercise: cf Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 at 131[24]-132[25].

36    In short, all these considerations militate against the disposal of the proceedings on a summary basis.

37    It may be that, in the light of the joint submission to North J, that the proper construction of the order was such as to contemplate a reservation of the kind found in O 35 r 6. If not, the deeper question of the kind to which we have referred may arise. These questions require the care of final, not summary, disposition.

38    Even if one accepts as correct the applicant’s criticism that the primary judge approached the question laying too much emphasis on what the parties mutually intended, the correct order was made. In all the circumstances, it would be inappropriate to permit the Thalanyji people’s claim to be disposed of in a summary way without exploration of the kind of considerations to which we have referred. The question of res judicata and any consequential matter should be pleaded.

39    At the hearing we heard the parties on costs. Given that our reasons for not dismissing the proceedings as an abuse of process are somewhat different from his Honour’s reasons and from the arguments of the respondents, in all the circumstances, the costs of the application for leave to appeal and the appeal should be costs in the proceedings below.

Associate:

Dated:    6 June 2013