FEDERAL COURT OF AUSTRALIA

WYkanak v Metropolitan Local Aboriginal Lands Council [2000] FCA 251

ABUSE OF PROCESS  – collateral challenges to previous judgments – where applicant seeks to avoid finding of appellate court by commencing new proceedings

STANDING – amicus curiae – person to be represented fails to appear or indicate desire to be represented in proceedings

Native Title Act 1993 (Cth) ss 13, 193

Kanak v New South Wales Aboriginal Land Council [1997] FCA 954

DOMINIC WYKANAK v METROPOLITAN LOCAL ABORIGINAL LANDS COUNCIL, NEW SOUTH WALES ABORIGINAL LANDS COUNCIL AND REGISTRAR OF THE NATIONAL NATIVE TITLE TRIBUNAL

NG 6003 OF 1998

EINFELD J

13 MARCH 2000

SYDNEY

THE COURT ORDERS THAT:

1.             the motion of the second respondent of 16 July 1999 be granted

2.             the applicant’s appeal filed on 11 May 1998 be dismissed

3.             the applicant’s motions filed on 30 July and 5 August 1999 be dismissed

4.             the applicant pay the costs of the first and second respondents of all these proceedings on a full indemnity basis

Note:    Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant is a regular litigant in this Court.  He has made a speciality of filing applications of no merit and then doing his best to delay their dismissal by various procedural and personal claims.  Claims such as impecuniosity, lack of legal representation, illness or other inability to attend Court or to comply with Court directions, and most recently a breakdown of his printer and photocopier, however correct in fact at the time, never seem to have prevented him from launching fresh proceedings or, as will be seen, conducting other proceedings concurrently.  The matter now before the Court is a motion by the New South Wales Aboriginal Lands Council (the second respondent) of 16 July 1999 to dismiss what the applicant has called a “Notice of Appeal” filed on 11 May 1998.  The “appeal” is said to be from a decision/determination of the President of the National Native Title Tribunal of 2 April 1998 and a delegate of the Registrar of the Tribunal of 1 April 1998 (described by the applicant in his Notice of Appeal as “April Fool’s Day”).  According to the applicant, the President informed him “that the determination of Justice Beaumont made” on 31 March 1998 was “a Registered Determination” of the Tribunal.

2                     Justice Beaumont’s determination, made in matter number 6001 of 1998, was to dismiss the present applicant’s motion to be joined as a party to those proceedings brought by the Metropolitan Local Aboriginal Land Council (the first respondent) for a determination that native title does not exist in respect of some land at Duffy’s Forest.  The reason given by his Honour was that the applicant had no relevant interest in the land or entitlement to represent others who had or claimed to have an interest, including a man named Dennis Foley.  His Honour then went on to determine that no native title rights or interests existed in the land.  The first respondent joins in and supports the second respondent’s motion for summary dismissal of the present “appeal”.

3                     On 21 August 1998, a Full Court of this Court (Lee, Sundberg and Madgwick JJ) dismissed an application for leave to appeal from Justice Beaumont’s dismissal of the applicant’s joinder application.  For more abundant caution in case leave was not necessary, their Honours also considered the matter as an “imperfectly constituted” appeal and dismissed it with costs, indemnity costs in the case of the second respondent.  An application to the High Court for leave to appeal the Full Court’s decision was dismissed with costs on 18 June 1999.

4                     The second respondent’s present motion is brought on the two bases that the applicant has no standing to bring them, and that his “notice of appeal” is an abuse of process because in substance it seeks to challenge Justice Beaumont’s decision of 31 March 1998 which has now twice been confirmed on appeal.

5                     Justice Beaumont’s decision was, pursuant to section 13 of the Native Title Act 1993 (Cth) (the Act), an “Approved Determination of Native Title” by this Court.  By section 193 of the Act, the Registrar of the Native Title Tribunal was required to register the determination.  The applicant’s “appeal” seeks an order revoking or setting aside Justice Beaumont’s determination and a review and re-hearing of the case.  It also seeks some consequential orders to hold the status quo of the relevant land in the interim and some other orders that make no sense at all.

6                     The applicant has filed 4 affidavits in support of the “appeal”, three dated 13 May 1998 and one dated the following day.  Much of the material contained in them is quite irrelevant to his process, but they make clear that he is quite shamelessly seeking to impugn and go behind Justice Beaumont’s decision, upheld by two appeal courts, that he has no interest in the Duffy’s Forest land and no claim to represent Foley or the other person or persons he nominated.  At all times up to this day, the applicant has not claimed a direct personal interest in the land in question.

7                     There is no such appeal as the one contained in the “notice of appeal” the applicant has filed.  Indeed, in my view, the complaint made against the President of the Tribunal cannot be the subject of any legal proceedings at all as all the President is alleged to have done is to “inform” the applicant of the legal effect of Justice Beaumont’s determination of 31 March 1998.

8                     On the other hand, although the matter has not been argued, it is possible that the decision of the Registrar of the Tribunal to register the determination may be subject to judicial or other similar review by the Court.  Although I do not find that it is, I am prepared to proceed on that assumption in order to put the applicant’s case at its highest.

9                     The most obvious consequence of the applicant’s “notice of appeal”, viewed in the most favourable light to him, is that if successful it would have the effect of restraining the Tribunal from giving effect to Justice Beaumont’s decision.  Not the slightest warrant for any such result has been or could be shown.

10                  Likewise, for the applicant to have standing to agitate such a result would require a finding that the applicant has an interest affected by the determination, the very claim Justice Beaumont decided did not have any substance.  His Honour held, and the Full Court and High Court upheld, that he did not have standing in the representative capacity he claimed.

11                  By a fax sent to the Court on 30 July 1999, the applicant sought an extension of time for the filing of his written submissions on this matter which were due on that date. I instructed my Associate to inform the applicant that he could have a further week for his written submissions.  Accompanying the fax was a motion seeking an adjournment of the second respondent’s motion for summary dismissal and orders that Mr Foley be joined in “this matter” and that the applicant be permitted “to present submissions to the Court either as Mr Foley’s Agent or as Amicus Curiae in the absence of Mr Foley himself”.  The adjournment requested was to permit Mr Foley the opportunity to make submissions in matter number 6097 of 1998 which is or was apparently pending.  Subsequently on 5 August 1999, the applicant presented a “motion for directions”, supported by an affidavit, seeking a postponement of the completion of the current proceedings to permit mediation following what was said to be an exchange between the parties during or after some hearing before Registrar Quinn. 

12                  I refuse both motions which were opposed by the respondents.  No grounds for an adjournment have been shown.  As was the position in proceedings before Justice Beaumont, there is still nothing from Mr Foley indicating any interest in this land or a desire to be represented by the applicant.  Nor has any evidence been brought to show any connection between matter number 6097 of 1998 and the present matter or how the former would assist the applicant to overcome the flaws alleged to be in the latter.

13                  By fax dated 29 September 1999, the applicant, at last, presented his written submissions, by then two months overdue.  He stated that he had been unable to meet the deadline previously given “due to poverty, technical problems and time management difficulties with my new job as Bondi Waverley Councillor (which may not last long because Waverley Council is talking about sueing [sic]/charging me) and public interest litigation associated with opposing the proposal to build an Olympic Stadium on Bondi Beach in which injunctions have been sought thereby requiring urgent hearings\appearances – sometimes as an unrepresented litigant in person.”  His submissions stated that the Full Court’s judgment was wrong and that he disagreed with it.  They alleged that Justice Beaumont made grievous errors in understanding and dealing with his application and, as far as I understand them, that the High Court was inconsistent as between its approach to the present matter and its views in other matters.  By further faxes on 5 and 20 October 1999, he also alleged errors in the transcript of the High Court hearing.  There is no merit in any of the submissions made, both in substance and because collateral challenges to previous judgments cannot be brought in this way.

14                  In these circumstances, the present proceedings have no substance and are an abuse of process.  They must be dismissed.  As to costs, I can only follow the lead given by Justice Burchett in Kanak v New South Wales Aboriginal Land Council [1997] FCA 954, and by the Full Court in matter number 6001 of 1998, and order that the applicant pay the first and second respondents’ costs on an indemnity basis.

Associate:

Dated:              13 March 2000