FEDERAL COURT OF AUSTRALIA

Kullilli People # 2 and Kullilli People # 3 v State of Queensland[2007] FCA 512

NATIVE TITLE – Native Title Determination application – Native Title Act 1993 (Cth), s 61 – authority to make application – persons “jointly” comprising the applicant – agreement of all persons comprising the applicant.

PRACTICE AND PROCEDURE – reinstatement application – original dismissal final – discretion to set aside interlocutory judgment in exceptional circumstances – realistic attempt to comply with previous order – Federal Court Rules, O 35 r 7(2).

Native Title Act 1993 (Cth), s 61(2)(c)

Federal Court Rules, O 35 r 7(2)

Dudzinski v Centrelink [2003] FCA 308, referred to

‘Pooncarie’ Barkandji (Paakantye People) v New South Wales Minister for Land & Water Conservation [2006] FCA 25, cited

Sampi v Western Australia (No 2) [2005] FCA 1567, cited

KULLILLI PEOPLE # 2 AND KULLILLI PEOPLE # 3 v THE STATE OF QUEENSLAND & ORS

QUD 6025 OF 2002 and QUD 6026 of 2002

TAMBERLIN J

13 APRIL 2007

SYDNEY (Heard in BRISBANE)

THE COURT ORDERS THAT:

1.                  The application for reinstatement is dismissed.

2.                  The application to set aside the order which came into effect on 1 November 2006 is refused.

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

REASONS FOR JUDGMENT

1                     On 26 April 2006 at a directions hearing I ordered that the applicants file and serve by 1 November 2006 a new application incorporating terms of agreements dated 26 March 2006, between the Kullilli People and the Boonthamurra People, between the Kullilli People and the Budjiti People, and between the Kullilli People and the Wangkumarra People.

2                     I also ordered that the present application was to stand dismissed as at 2 November 2006 and I reserved liberty to all parties to apply.

3                     Given that the applicants did not file and serve by the appointed date a new application in terms of the above order, those applications were dismissed. 

4                     The present application is said to be made by the applicants to reinstate the dismissed applications and to set aside the orders made on 26 April 2006 requiring the filing of a new application.  It is opposed by the State.

5                     The reinstatement application was heard by me on Tuesday 30 January 2007 in Brisbane.

Background

6                     The applications, which were filed in 2002 by the Queensland South Representative Body Aboriginal Corporation as the former legal representatives for the Kullilli People, were an agreed compromise between the claimants after the original Kullilli claim which had overlapped most of the claims in South-Western Queensland was withdrawn. 

7                     The Kullilli # 2 claim was intended to be the only part of the area asserted to be Kullilli country that did not overlap with other claims and could therefore be progressed expeditiously to a consent determination.  However, in fact the claim had a substantial area of overlap with the Boonthamurra country claim.  Since commencement of the application there has been ongoing conflict with contiguous claim groups because the Kullilli have not been prepared to reduce the area of their claims in accordance with available anthropological evidence despite negotiations at a Land Summit conducted in 2006.

8                     Because of the ongoing dispute within the Kullilli applicant group itself,
the legal representative of the Kullilli People, Queensland South Native Title Service (“QSNTS”), was forced to cease its representation.  Some members of the Applicant group engaged the firm of Drakopoulos Black to act on their behalf.  However, that firm did not file prior to 1 November 2006 evidence indicating that a new application had been filed and served.  But, on 4 November 2006, some further material was filed after the action was dismissed by operation of the Order of 26 April 2006.

9                     The respondent, State of Queensland, opposes the reinstatement application. QSNTS supports the State in its opposition and has filed evidence and made oral submissions in support: see especially the Affidavit of Valerie Cooms, filed on 29 January 2007.  The history of the matter is as follows.  On 26 April 2006 the Court held a directions hearing in relation to a number of claims of which the present applications form part.  At that hearing Colin Hardie of QSNTS was the solicitor on record for the applicant and sought orders from the Court.  These orders were made on 26 April and entered on 8 May 2006 in the terms set out in paragraphs [1] and [2] above.  On 4 July 2006 the applicant obtained an order from the Court releasing QSNTS from an undertaking to hold an authorisation meeting in order to commence a new application on the understanding that Messrs Drakopoulos Black, Solicitors, would be representing the applicant.  It was noted that an authorisation meeting would be called by the applicant.  A meeting was called on 5 August 2006 but it was inconclusive.  No further order was sought from the Court prior to the date of dismissal on 2 November 2006 and as a consequence of this inaction the order came into force.

10                  On 15 November 2006 the State was informed by the Deputy District Registrar that the matter was dismissed as of 2 November 2006 in accordance with the orders of 26 April 2006.  On 13 December 2006 Drakopoulos Black Solicitors filed a Notice of Motion seeking to have the applications reinstated and this was supported by an Affidavit by Mr Black sworn on 27 November 2006 and other supporting material.

11                  The issues raised involve the following questions:

(a)                Who has authority to bring the motion;

(b)               Whether the Court has jurisdiction to make the orders sought; and

(c)                What factors are relevant to the exercise of discretion in the event that jurisdiction is established.

Contentions and reasoning

Authority

12                  On 4 July I noted that Mr Black appeared on behalf of some members of the Kullilli applicant group with the expectation that instructions to his firm to represent all persons comprising the applicant would be forthcoming.  Notwithstanding this indication the applicant remained legally represented on the record by QSNTS until the applications were dismissed on 2 November 2006.

13                  Mr Black has filed an Affidavit attaching a copy of an authority of 4 November 2006, which was two days after the dismissal, confirming that his firm had been appointed to represent the Kullilli applicant.  This authority is challenged as it was executed only by nine of the twelve persons who jointly comprised the applicant.  Since the date of the applications, one of the members of the applicant group has died and two others have not signed the ‘Authority’ of 4 November 2006.  By s 61(2)(c) of the Native Title Act 1993 (Cth), the Native Title Determination Application must be made by a person or persons authorised to make the application by a Native Title Claim Group and that person or persons jointly comprises the applicant.  This means that there must be either an amendment to the application or a consent by all the claim group.  In the present case there is real doubt as to whether this requirement has been satisfied.

14                  The applicants’ request for reinstatement relies by way of authorisation on a resolution at an authorisation meeting of the applicant group on 22 and 23 March 2002 in the following terms:

‘That decisions of the Applicants are generally expected to be made by consensus but, where that is not practicable or possible in respect of a matter, then, unless there is a need to make the decision immediately (in order to the protect the Kullilli People’s interests), time will be permitted for each Applicant to consult with his or her families about the relevant matter.  Then a decision about the matter can be made with agreement of 7 or more of the Applicants.’ (Emphasis added.)

The State of Queensland contends that this resolution is not on its true construction an authorisation that a decision can be made with agreement of seven or more of the applicant group because there is no evidence of any attempt to obtain consensus and it has not been shown to be impracticable or impossible to obtain consensus.  The resolution contemplates an attempt being made to obtain agreement.  That has not been done here.  In other words, the power to enter into an arrangement with less than all members of the Group is contingent on consultation.  Therefore, there is at least a real doubt as to the effectiveness of the authorisation relied on by Messrs Drakopoulos Black.

15                  The State also cites a body of law which recognises that the role of the applicant is a representative one and it submits that it is not competent for only some of those persons comprising the applicant to obtain separate legal representation and act in other than by unanimous agreement: see ‘Pooncarie’ Barkandji (Paakantye People) v New South Wales Minister for Land & Water Conservation [2006] FCA 25 at [10] and Sampi v Western Australia (No 2) [2005] FCA 1567 at [24]-[27].  In these circumstances, in my view, there is a significant doubt whether Mr Black’s firm has been duly authorised to act.  I think the better view is that there is no such authority on the face of the present documents and the evidence before me.

Jurisdiction

16                  This application to set aside the order of 2 November 2006 is brought under O 35 r 7(2)(c) of the Federal Court Rules, which gives the power to the Court to set aside a judgment after it has been entered where the order is interlocutory.  The order of dismissal has been entered in this case.  There has been debate in this case whether the order for dismissal was interlocutory or final.  In my view, the orders for dismissal effective as from 2 November, is final because it has the effect of dismissing the applications.  However, having regard to the conclusion I have reached as to the exercise of my discretion it is not necessary to resolve this question.

Discretion

17                  Assuming that there is power to set aside the judgment in the present case I would not exercise the broad discretion conferred in favour of the applicant on the motion.  It is well settled that, although broad, the discretion conferred by O 35 r 7(2)(c) should be exercised in a judicial manner and only in exceptional circumstances: Dudzinski v Centrelink [2003] FCA 308 at [11].  This guideline is based on the principle of finality of litigation which counsels courts to exercise caution when considering whether orders previously made and final on their face and entered should be reopened for consideration and set aside.

18                  One of factors to take into account is whether there has been any satisfactory explanation or realistic attempt to comply with the orders which were made more than 6 months ago.  I am not satisfied in the circumstances of this case that any satisfactory attempt was made to comply with the orders and file a new application or to have the orders vacated with the consequence that the dismissal orders have come into effect.

19                  It is imperative in this case that the overlap issue be resolved as soon as possible in order to enable resolution of not only these claims but also other claims in the area.  At the Western Land Summit held on 26 March 2006 the applicant had executed agreements with the Budjiti, Boonthamurra and Wangkumarra applicant, with the consequence that, on their face, these agreements resolved the overlaps between the applications.  These agreements had been filed in Court in support of the orders sought by the applicant in each matter and made on 26 April 2006.

20                  Because the directions to the applicant to file a new application were part of a cluster-wide strategy that required the resolution of overlaps, it is important to ensure their efficacy.  It was made perfectly clear on 26 April 2006 that the claims would be dismissed and that a new application had to be made.  There was no application to prevent the dismissal made prior to 2 November 2006 despite an inconclusive meeting of the claim group on 5 August 2006.  That meeting could not proceed as an authorisation meeting because of the inability of those present to agree who were the relevant Kullilli People.

21                  If the present applications were to be reinstated it would create an overlap with a new application filed by the Boonthamurra People in response to orders made in their application and it would slow the progress of the application and result in overlapping applications being programmed for hearing, which is a consequence to be avoided.

22                  On the other hand, if the application for reinstatement is dismissed the Kullilli People can bring fresh proceedings, which are properly authorised under the Native Title Act 1993 (Cth), for the recognition of native title which reflect the agreements identified above and which will remove the doubts inherent in the present circumstances.

23                  There is real doubt surrounding the question whether there has been proper authorisation in relation to a number of matters, including the appointment Messrs Drakopoulos Black and the revocation of the instructions to QSNTS.  It is therefore desirable in the interests of certainty and resolution of the claims in the cluster that there be a new and clear authorisation to the future progress of these matters.

24                  Accordingly, in these circumstances and for the above reasons, I dismiss the application for reinstatement and refuse the application to set aside the order which came into effect on 1 November 2006.  I make no order as to costs.

Associate:

Dated:         13 April 2007