Federal Court of Australia

Pitta Pitta Aboriginal Corporation RNTBC v Melville on behalf of the Pitta Pitta People [2022] FCAFC 154

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be granted.

2.    The application for leave to appeal be dismissed.

3.    There be no order as to costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    These reasons for judgment explain the orders we made on 9 August 2022 as follows:

1.    The application for an extension of time be granted.

2.    The application for leave to appeal be dismissed.

3.    There be no order as to costs.

2    The application for leave to appeal relates to the orders of the primary judge of 13 April 2022 dismissing the applicant’s interlocutory application seeking orders that the compensation application be summarily dismissed or struck out in whole or part: Melville on behalf of the Pitta Pitta People v State of Queensland [2022] FCA 387.

3    The primary judge dismissed the applicant’s interlocutory application (and an interlocutory application to the same effect filed by the second respondent, the State of Queensland) on the basis that “at the general discretionary level, …the appropriate way for the question of whether the Pitta Pitta People are entitled to compensation under the NTA [Native Title Act 1993 (Cth)] to proceed, is for this proceeding to continue, and to continue expeditiously”: [118]. In so concluding, the primary judge also noted that “[i]f the State and the Pitta Pitta RNTBC [the applicant] wish to press the matters they have raised at an interlocutory level, they may do so at trial”: [118].

4    The applicant, the Pitta Pitta Aboriginal Corporation RNTBC, contends that leave to appeal should be granted and the appeal allowed on the grounds that: (a) the claim for compensation filed by Florence Melville and others on behalf of the Pitta Pitta People had not been authorised as required by ss 61 and 251B of the Native Title Act 1993 (Cth) (the NTA), and/or (b) by ss 24AA(6), 50, 51, 52A, 61 and 224 of the NTA, the Pitta Pitta People do not have standing to make the compensation application under s 61 of the NTA insofar as it concerns acts affecting native title within the application area after 17 January 2014.

5    In this regard, 17 January 2014 is the date on which the determination of native title, including that the native title is held on trust under s 56 of the NTA by the applicant, took effect: Aplin on behalf of the Pitta Pitta People v State of Queensland [2012] FCA 883.

6    The problems with the application for leave to appeal are that the alleged sufficient doubt about the correctness of the primary judge’s decision does not engage with the discretionary nature of that decision, and the consequence that appellable error is confined as described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504–505 that:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

7    The applicant accepted that the primary judge dismissed the interlocutory application on two main grounds. First, that the authorisation requirement in s 251B(a) of the NTA in the context of a compensation application raises a construction question unsuitable to summary determination and is “not the way new jurisprudence in the Court’s native title compensation jurisdiction should be made”: [74]. Secondly, that there “are difficult questions of construction” on the standing point that were “unsuitable for summary determination”: [100]. The applicant’s submissions explain why it is said that the primary judge erred in both respects. However, the submissions do not recognise that the primary judge was exercising a discretion not to deal with the issues on a summary basis. The asserted errors do not engage with the discretionary nature of the exercise.

The factual context

8    As noted, on 17 January 2014, the determination of native title, including that the native title is held on trust under s 56 of the NTA by the applicant, took effect. This determination included that:

1.    There be a Determination of native title in the terms set out below (“the Determination”).

…

6.    The native title is held communally by the group of people described in Schedule 2 (“the Native Title Holders”).

…

14.    Pursuant to section 56 of the Native Title Act 1993 (Cth), upon the Determination taking effect, the Court determines that the native title is held in trust.

15.    The Pitta Pitta Aboriginal Corporation, ICN 3943 incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to:

(a)    be the prescribed body corporate for the purpose of section 56(1) of the Native Title Act 1993 (Cth); and

(b)    perform the functions mentioned in section 57(1) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate.

9    Schedule 2 to the determination identifies the Native Title Holders as the Pitta Pitta People, being the biological descendants of specified ancestors.

10    On 22 October 2020, Florence Melville, Neville James Aplin, Jean Jacks, Carmel Belford, and Noel Doyle, as the compensation applicant, filed the compensation application. The compensation application says that it is authorised by the compensation claim group. The compensation claim group is defined by reference to Sch 2 of the determination.

11    The evidence supporting the compensation application included affidavits which the primary judge summarised at [36], including that a traditional decision-making process existed for the Pitta Pitta People in which it is necessary that “Elders who are recognised to speak for country to form a consensus where a majority agree and then all abide by the decision”: [36(c)]. Further, that Jean Jacks, a Pitta Pitta Elder, had spoken to the Elders and obtained their consent and approval to make the compensation application: [36(d)(iii)].

The statutory context

12    Section 251B of the NTA provides that:

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind – the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process – the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

13    Section 253 provides that in relation to the making of native title determination applications or compensation applications, and dealing with matters arising in relation to such applications, “authorise” has the meaning given by s 251B.

14    Under s 61(1) (in its form as at 20 October 2020), the applications that can be made and the persons who may make them include a compensation application under s 50(2) for a determination of compensation made by, relevantly:

(1)    The registered native title body corporate (if any); or

(2)    A person or persons authorised by all the persons (the compensation claim group) who claim to be entitled to the compensation, provided the person or persons are also included in the compensation claim group.

15    By s 224:

The expression native title holder, in relation to native title, means:

(a)    if a prescribed body corporate is registered on the National Native Title Register as holding the native title rights and interests on trust – the prescribed body corporate; or

(b)    in any other case – the person or persons who hold the native title.

16    The various entitlements to compensation under the potentially relevant provisions of the NTA (ss 20(1), 22G(1), and 23J) specify that “the native title holders are entitled to compensation if…” certain requirements are specified.

17    Section 84C provides that:

(1)    If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

Court must consider strike-out application before other proceedings

(2)    The Court must, before any further proceedings take place in relation to the main application, consider the application made under subsection (1).

…

(4)    This section does not prevent the making of any other application to strike out the main application.

18    It follows from s 84C(4) that the power under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) was also available. Section 31A(2) provides that the Court may give judgment for one party against another in relation to the whole or any part of a proceeding if (a) the first party is defending the proceeding or that part of the proceeding, and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. Section 31A(3) provides that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.

19    Section 84D(4)(a) of the NTA enables the Court to hear and determine an application, despite a defect in authorisation, “after balancing the need for due prosecution of the application and the interests of justice”.

20    Clause 6(1)(a) of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) provides that a prescribed body corporate that holds native title rights and interests on trust has the function to manage the native title rights and interests of the common law holders of those rights and interests.

The primary judge’s reasons

21    There is no suggestion that the primary judge erred in identifying that:

(1)    the applicants bore the burden of satisfying the Court that it was appropriate to strike out or summarily dismiss the compensation application: [17];

(2)    settled principles under s 84C of the NTA are expressed with relative strictness: the Court should only exercise the power of summary dismissal in “a very clear case”: [17]; and

(3)    s 31A of the Federal Court Act imposes a less onerous requirement for summary dismissal, while still recognising that summary dismissal is an exceptional remedy: [18].

22    Nor could it be suggested that the primary judge erred in observing that the need for some caution in determining whether summarily to dismiss a proceeding is especially prominent in the context of compensation applications under the NTA, which comprise a relatively undeveloped area of law, in comparison to claimant applications under s 61 of the NTA: [19].

23    The primary judge also correctly accepted “the central importance to the conduct of claimant applications that those who purport to bring such applications on behalf of a group of asserted native title holders have the authority of that group to do so”: [21].

24    The primary judge noted at [37] that, although the contention in the evidence that there were only 12 Pitta Pitta Elders was not accepted by the applicant, it was:

sufficiently clear on the evidence that half or perhaps more than half of the surviving Elders support the compensation application, and further those Elders were either members of the applicant in the Pitta Pitta claimant application, or witnesses whose evidence was relied upon for the Pitta Pitta CD [consent determination] (or both).

25    In respect of the authorisation issue, the primary judge concluded that:

(1)    “the compensation applicant relies on an authorisation said to be compliant with s 251B(a); therefore, the question to be resolved is whether, authorisation having been put in issue by the State and the Pitta Pitta RNTBC, the compensation applicant has no reasonable prospects of establishing it has been authorised in accordance with that provision, as properly construed”: [72];

(2)    this question does not have a clear answer and is a question entirely unsuitable to summary determination on a strike out application, as “things of that kind” in s 251B(a) (“where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind”) may take a broad meaning or not: [74]–[75];

(3)    further, the question involves “the kind of matter on which there should be the usual opportunity to gather and adduce evidence (which may be lay and expert), and there should be the usual opportunity for the full testing of that evidence”: [75]; and

(4)    accordingly, s 251B(a) “is concerned with whether there exists, as a matter of objective fact, a process under traditional law and custom that must be complied with in the present circumstances. That is a triable issue”: [80].

26    It is relevant that the State took a different approach from that of the applicant in respect of the standing issue based on the proper construction of s 61 of the NTA: [89]. The State sought an order striking out the compensation application to the extent that it relates to the 136 acts which it contends occurred on or after 17 January 2014: [90]. The applicant contended that the compensation applicant does not have standing under s 61(1) of the NTA at all, because the applicant is not the RNTBC (registered native title body corporate as referred to in the table to s 61(1)): [91]. This is important as it exposes that the primary judge was dealing with a question of the construction of s 61(1) which involved a three-way dispute, thereby increasing the complexity of the matters in issue.

27    In respect of the standing issue, the primary judge concluded that:

(1)    there was no relevant authority about the proper construction of this aspect of s 61 of the NTA: [95];

(2)    the competing contentions of the State and the applicant have a profound effect on the operation of compensation applications under the NTA in that they confine the operation of the section in a way the words of the section do not: [95];

(3)    “this is a matter which should be determined at trial, in the proper context of a full consideration of all the compensable acts, and (amongst other matters) the likely real effect of a construction which means that significant amounts of monetary compensation can only be paid to an RNTBC”: [95];

(4)    the competing contentions of the State and the applicant were not apparent to the High Court in Northern Territory v Griffiths [2019] HCA 7; (2019) 269 CLR 1 where, at [42], it was said that the right to compensation is vested in the persons who hold the native title, being the common law holders: [96]–[101];

(5)    the competing contentions of the State and the applicant may work to the real disadvantage of the common law holders where there is a dysfunctional or divided RNTBC: [101];

(6)    the amendments to ss 61, 62 and 63 of the NTA enacted by Schedule 4 to the Native Title Legislation Amendment Act 2021 (Cth) (2021 Amending Act) may not affect the proceeding, but what if anything those amendments to the NTA mean for the standing arguments is a matter which should be fully argued at trial: [103]; and

(7)    the difference of approach between the two respondents illustrates why the standing arguments are unsuitable for interlocutory determination: [104].

28    The primary judge also said in respect of the exercise of her discretion:

(1)    even if the compensation applicant’s arguments had little or no reasonable prospects of success, as a matter of discretion, the primary judge would not have summarily dismissed or struck out the compensation application: [107];

(2)    this was because the applicant had not itself made a compensation application and “[r]eturning to a position where there is no compensation claim on behalf of the Pitta Pitta People, and the disputes about who should bring such an application simply start again, is not giving a particularly practical operation to the NTA”: [108];

(3)    “[e]ach month there is delay is another month when the risks increase that senior members of the Pitta Pitta People may become unable, or less able, to participate in the giving of evidence relevant to the compensation application”: [109]; and

(4)    it is clear on the evidence that there is a dispute, with a long history, between some or all directors of the Pitta Pitta RNTBC and some or all of those individuals who comprise the compensation applicant, and at the general discretionary level, the appropriate way for the question of whether the Pitta Pitta People are entitled to compensation under the NTA to proceed, is for this proceeding to continue, and to continue expeditiously: [112] and [118].

29    The primary judge also said this at [119]–[120]:

The two interlocutory applications should be dismissed. These reasons should not be taken as encouraging any applications for a separate question process, lest that be seen as another way to hold this compensation application up at the hurdle of authorisation or standing. While there are many authorities of this Court expressing the view that questions of authorisation should be determined early in a proceeding, so as to avoid any waste of public funds and resources if an applicant is found not to be duly authorised, all those observations must be seen in their particular context. That context may include matters such as whether those alleging authorisation are recognised Elders or are group members who might sit outside the core, whether there are overlapping claims, how long a proceeding has been on foot, and whether the observations were made against a background of well-established jurisprudence about authorisation under s 251B(b) for a claimant application.

Although this was not a matter canvassed by the parties, it seems agreed that a compensation claim is capable of being made on behalf of the Pitta Pitta common law holders. This current application is all about who should bring it. In a sense, it is a lawyer’s argument. It has already occupied and consumed considerable public funds and resources, without any benefit to the Pitta Pita common law holders. Moving forward, it might be sensible for the compensation applicant and the Pitta Pitta RNTBC to put their differences to the background, and to consider whether they might pursue a compensation application in a more collaborative way. One option might be an amendment to the composition of the compensation applicant so that some individuals from the Pitta Pitta RNTBC are represented in it. There may be other options. This is not a circumstance where there is any doubt about the underlying merit – at a general level rather than at the level of specific compensable acts – of a compensation application on behalf of the Pitta Pitta People. The Court encourages all the parties to move towards resolution of the real issues in this proceeding, which revolve around the payment of compensation for acts affecting native title, and towards the pursuance of the objectives of the NTA, especially as set out in the Preamble.

The asserted errors

30    As noted, the asserted errors in the primary judge’s reasoning fail to grapple with the fact that her Honour’s decision was essentially discretionary.

31    In respect of authorisation, and contrary to the applicant’s submissions in support of the leave application and the appeal:

(1)    the fact that it is the usual course, unless there is a relevant factual dispute, to hear and decide any legal question before trial is immaterial, as in this case there was a factual dispute about the content of traditional laws and customs applying to “things of that kind”;

(2)    the evidence of Ms Eatts which was before the primary judge to the effect that there was no authorisation as required by traditional laws and customs merely reinforced the need for a full hearing about that issue rather than a summary dismissal;

(3)    even if it is correct that the evidentiary onus had shifted to the compensation applicant to point to some specific factual or evidentiary issues making a trial necessary, the factual debate about authorisation was manifest on the evidence before the primary judge; and

(4)    the arguments on the appeal themselves exposed further factual debate about the requirement of traditional law and custom for a unanimous, as opposed to a majority, decision of the Elders (see the primary judge’s reasons at [37]), confirming the wisdom of the primary judge’s view in this particular case that the content of traditional law and custom was not amenable to summary determination.

32    In respect of standing, and contrary to the applicant’s submissions in support of the leave application and the appeal:

(1)    Santo v David [2010] FCA 42; (2010) 182 FCR 438 at [37] does not resolve the proper construction of s 61(1) and, specifically, whether it permits the common law holders to make an application for compensation as the “native title holders” entitled to compensation under the relevant provisions of the NTA. The primary judge was not bound to refer to Santo in deciding not to summarily dismiss or strike out the compensation application merely because the applicant relied on that decision;

(2)    while standing is necessary for there to be a matter within federal jurisdiction, the issue of standing in the present case involves a difficult issue of statutory construction involving, at the least, consideration of the relationship between s 224 (defining native title holder) and s 61(1) (which specifies persons who may make a compensation application in the alternative). In these circumstances, there was no error in the primary judge refusing to decide this issue on an application for summary dismissal or strike out;

(3)    given the primary judge’s reasoning, the primary judge was not bound to refer to the applicant’s submissions about general law trust principles and, in any event, the application of those principles might support the capacity of the compensation applicant to make the compensation application given that the applicant, being the registered native title body corporate holding the native title on trust for the Pitta Pitta People, has not done so. Accordingly, this submission also reinforces the wisdom of the primary judge in the present case in refusing to exercise the discretion to summarily dismiss or strike out the compensation application – further evidence about the willingness or unwillingness of the applicant as the registered native title body corporate holding the native title on trust for the Pitta Pitta People may be relevant to the resolution of the issue of standing given that s 61(1) expresses the capacity to make such an application in the alternative;

(4)    the applicant’s submission that the evidence is no higher than an assertion that the compensation applicant members had sought the RNTBC’s “co-operation and support but have been refused” gives further support to the primary judge’s view that a summary dismissal or strike out in the present case would be inappropriate, as further evidence about the position of the applicant as the registered native title body corporate holding the native title on trust for the Pitta Pitta People might be relevant to the issue of standing by analogy to common law principles as to when a beneficiary might make a claim when the trustee refuses to do so, including making a claim in the name of the trustee: see Treadtel International Pty Ltd v Coco [2016] NSWCA 360; (2016) 316 FLR 318 at [70]–[74]; and

(5)    the primary judge may or may not be right that the 2021 Amending Act is potentially relevant to the construction issue, but that is not to the point. The fact that it might be relevant, but had not been fully argued, rightly added support to the primary judge’s view that the matter was not suitable for summary determination.

33    Accordingly, there is no error of principle apparent in the reasoning of the primary judge capable of vitiating the discretionary decision not to determine the factual and construction issues in a summary manner.

34    The primary judge rightly recognised that, in this case, the construction issues relevant to standing and authorisation involved disputed or not fully resolved (or resolvable at the summary dismissal stage) issues of fact. In saying, at [119], that her reasons should not be taken to encourage an application for the determination of separate questions, the primary judge was not suggesting that issues of standing and authorisation were inherently unsuitable for resolution in that manner. Whether separate determination of questions of standing and authorisation in other matters is appropriate will depend on the circumstances of the particular case.

35    The primary judge’s comments at [120] that, “[t]his current application is all about who should bring it”, and, “[i]n a sense, it is a lawyer’s argument” also should not be understood as diminishing the importance of authorisation of compensation claims. Her Honour had acknowledged the numerous judicial statements highlighting the central importance of an applicant for a determination of native title having the authority of the native title claim group to make the application at [21]. The requirement of s 61(1), that a person or persons making an application for a determination of compensation be authorised by, “all of the persons…who claim to be entitled to the compensation”, is equally important.

Associate:

Dated:    6 September 2022