FEDERAL COURT OF AUSTRALIA

Quall v Northern Territory of Australia [2009] FCA 18

NATIVE TITLE – application under O 20 r 4 for summary dismissal – native title determination application claim area split into areas A and B – earlier determination that no native title exists for area A because traditional Aboriginal society that existed at sovereignty had a substantial interruption in acknowledgement and observance of traditional laws and customs -  issue estoppel– whether earlier determination decided what the relevant Aboriginal society was at sovereignty - whether earlier determination decided same issue – abuse of process - failure to claim particular Aboriginal society possessed native title rights and interests in earlier proceedings – whether an abuse of process to attempt to pursue that claim in proceedings for area B - whether earlier determination decided a similar issue

PRACTICE AND PROCEDURE – principles applicable to an application under O 20 r 4 for summary dismissal –issue estoppel – abuse of process – whether the current claim is a relitigation of the issue already determined in an earlier proceeding involving the same parties

Native Title Act 1993 (Cth)

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Risk v Northern Territory of Australia [2006] FCA 404

Quall v Risk [2001] FCA 378

Griffiths v Northern Territory of Australia (2006) 165 FCR 300

Risk v Northern Territory of Australia [2007] FCAFC 46

Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58

Kuligowski v Metrobus (2004) 220 CLR 363

Ramsay v Pigram (1968) 118 CLR 271

Blair v Curran (1939) 62 CLR 464

PE Baker v Yehunda (1998) 15 NSWLR 437

Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51

Brock v Minister for Justice and Customs [2007] FCA 2091

Wik Peoples v Queensland (1994) 49 FCR 1

WA v Ward (2000) 99 FCR 316

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256

Edward Landers v State of South Australia [2003] FCA 264

Williams v Grant [2004] FCAFC 178

Carl-Zeiss-Stiftung v Rayner and Keeler Ltd & Ors (No 2) (1966) 2 All ER 536

Ramsay v Pigram (1968) 181 CLR 271

Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699

Sea Culture International Pty Ltd v Scoles(1991) 32 FCR 275

Walton v Gardiner (1993) 177 CLR 378

Coffey v Secretary, Department of Social Security (1999) 86 FCR 434

Brock v Minister for Home Affairs [2008] FCAFC 165

Djaigween v Douglas (1994) 48 FCR 535

Rogers v R (1994) 181 CLR 251

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

State Bank of NSW v Stenhouse (1997) Australian Torts Reports 81-423

Agar v Hyde (2000) 201 CLR 522

Gray, J. 2000. The Kenbi Land Claim, Report of the Aboriginal Land Commissioner, Australian Government Publishing Service, Canberra.

Spencer Bower and Turner Res judicata 2^nd Ed

KEVIN LANCE QUALL ON BEHALF OF THE DANGGALABA & KULUMBIRINGIN PEOPLE v NORTHERN TERRITORY OF AUSTRALIA

NTD 6013 of 1998

REEVES J

19 JANUARY 2009

DARWIN

THE COURT ORDERS THAT:

1.                  This native title application be 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 eSearch on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     In May 2001, with the consent of all the parties, District Registrar Robson ordered that the lands the subject of various native title applications in and around the city of Darwin in the Northern Territory be divided into two areas: areas A and B.  Area A essentially included the lands within the urban areas of Darwin and Area B essentially included the lands in areas surrounding Darwin.  Following that order, those parts of the various native title applications relating to the lands in Area A were consolidated into one set of proceedings: NTD6033 of 2001.  This native title application and a number of similar applications where Mr Quall was the authorised applicant on behalf of a native title claim group (‘the Quall applicants’) became part of the consolidated proceedings, along with a number of native title applications where Mr Risk was the authorised applicant on behalf of a different native title claim group (‘the Risk applicants’).

2                     In Risk v Northern Territory of Australia [2006] FCA 404 (‘Risk’) Mansfield J dismissed the consolidated proceedings.  That dismissal affected this native title application and 18 other native title applications insofar as they related to areas of land within Area A.  However, those parts of this native title application and one other Quall native title application (NTD6026 of 1998) relating to areas of land in Area B were not dismissed. 

3                     The Northern Territory was the main respondent to the 19 native title applications in Risk and remains so in relation to this native title application.  It has now applied to strike out this native title application.  To avoid confusion with the primary native title application, in these reasons, I will refer to the Northern Territory’s application as the, or this, “strike out application” and the primary native title application as the, or this, “native title application”. 

4                     The Northern Territory relies on three grounds for this strike out application.  First, it claims that all of the critical issues in this native title application were determined in Risk and therefore an issue estoppel arises to prevent those same issues being raised again for determination in this native title application.  Secondly, it claims that in such circumstances, it is an abuse of process to raise the same issues again for determination in this native title application.  Finally, it claims that in such circumstances, this native title application has no reasonable prospects of success.  The Northern Territory’s strike out application therefore requires an identification of the critical issues that were determined in Risk, the critical issues that are raised for determination in this native title application and a comparison between the two sets of issues to determine whether the issue estoppel arises, or whether the abuse of process exists, or whether the issues raised for determination have no reasonable prospects of success.  I will consider these matters hereunder beginning with a consideration of the procedural history of this native title application. 

Procedural History

Original native title application on behalf of the Dangalaba Clan

5                     This native title application has a lengthy and complex procedural history and it is set against an even more lengthy and complex background of native title applications under the Native Title Act 1993 (Cth) (‘the NT Act’) and proceedings under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the ALR Act’).  This native title application was originally lodged with the National Native Title Tribunal by Mr Kevin Lance (“Tibby”) Quall on 21 October 1996.  At that time, the printed application form was completed so as to state that it was being made by the applicant, Mr Quall, and others, as claimants on behalf of the Dangalaba clan.  Apart from annexing a three page statement of the native title rights and interests claimed, it contained no detail of what the Dangalaba clan was.  It described the lands that were the subject of the native title application, or the claim area, as: “all vacant Crown (sic land) within the “Hundred of Ayers”, “Shire of Litchfield.”  Also all mangrove habitat, the waters and tributaries of “Hancock Reach” and “Middle Arm” lying within the “Hundred of Ayers” excluding freehold.”  The lands in question are located south-east of Darwin and south of Palmerston in the Northern Territory.  I interpolate that in 1994, before this native title application was lodged, the Northern Territory Government compulsorily acquired an area of land immediately to the north of the claim area for the purposes of constructing the East Arm Port, which subsequently became the new port facility for Darwin.  Some details of this acquisition process are recorded in Quall v Risk [2001] FCA 378 (‘Quall’) at [16]-[17]. 

May 2000 amendments to the native tile application

6                     Following the amendments to the NT Act in 1998, this native title application became an application in this Court, where it was given the file number NTD 6013 of 1998.  On 3 May 2000, it was substantially amended following leave given by O’Loughlin J.  No doubt these amendments were prompted by the 1998 amendments to the NT Act.  The amended form of this native title application was a much more elaborate document.  Mr Quall was named as the authorised applicant, again on behalf of the members of the Dangalaba clan.  In Part A, Section 2, Mr Quall’s authorisation as the applicant was stated to have been given at a meeting that was held at 6 Hack Court, Malak, Northern Territory on 4 August 1999.  In Schedule A, the Dangalaba clan (now spelt Danggalaba, which spelling I will adopt henceforth in these reasons) was said to comprise of:

1.                  Kevin Lance (Tibby) Quall (also the applicant)

2.                  Ronald Keith Quall

3.                  Diana Deeja Quall

4.                  Phillip Rupert Quall

5.                  Kevin Andrew Quall

6.                  Natasha Anne Quall

7.                  Sarah Audrey Quall

8.                  Linda Muriel Quall

7                     The amended application related to the same areas of land but they were described somewhat more precisely in Schedule B, as follows: “all vacant Crown land within the Hundred of Ayers and Shire of Litchfield, including all vacant crown land to the low water mark, all mangrove habitat, the waters and tributaries of Haycock Reach and Middle Arm lying within the Hundred of Ayers, excepting the area of water subject to the Paspaley Pearl Farm lease which is situated within the claim area.”

8                     The basis of the application was described in Schedule F and Attachment S.  Schedule F, among other things, stated that:

(a)        Association with the area

            A description of the Native Title Rights and Interests claimed is attached as         Attachment S (factual basis).  The attachment also describes the native claim    group’s Ancestors and the Descendents of those persons who are the         predecessors of those who had an association with the subject area.

(b)        Traditional laws and customs

            Danggalaba Traditional Laws and Customs are still continuing up until the             present, as there is the existence of Sacred Sites in the subject area.             Traditional Laws and Customs are observed by the claimants through their   spiritual and ceremonial affiliation which shows clearly their association with         the area.

(c)        Continuing to hold native title

            Ownership is described in accordance with the on-going traditional rights and        interests in the subject area.  The native title claim group continues to hold          native title with Traditional Laws and Customs taught by our Elders who         have passed on, and by those who are present. 

The transmission of knowledge is so important to the Rights of the claimants that they establish ownership and have to mean our legal rights are recognised.  Our Traditional Laws and Customs have been continued throughout time by the Danggalaba Ancestors exclusively and is continued by the Descendents who are members of the native title claim group and members of the Danggalaba clan. 

Further description of our native title rights and interests are contained in Attachment S.

9                     Attachment S – an attachment of some significance, as will appear later in these reasons – was a ten page document.  It began with the following statement:

Factual basis for the native title rights and interests claimed

1.         The following description of the history and structure, native title rights and           interests, spiritual affiliation, association with the area, and activities            undertaken, has been prepared in relation to the Danggalaba clan. 

2.         The information covers the land and waters subject to this application.  The          members of the native title claim group are all members of the Danggalaba          clan, however, the applicant acknowledges that the information contained in             Attachment S applies to a broader group than the native title claim group. 

3.         The native title claim group is therefore not claiming association with the area in accordance with traditional laws and customs, nor native title rights           and interests to the exclusion of other members of the Danggalaba clan who    are not members of this native title claim group.

10                  Then, in paragraph 4 of Attachment S, the Danggalaba clan’s identity vis-à-vis the Kulumbiringin Larrakia tribe was described as follows:

The Danggalaba members, traditionally of the Kulumbiringin Larrakia tribe are of the Danggalaba clan.  It was during the Kenbi Land Claim that all aboriginal claimants were borne out by the context of the evidence that all claimants were Larrakia, those who are claimants within the whole traditional boundary are within the Larrakia language.  It is at this point that our group did not agree and that we did not adopt Professor Peter Sutton’s new tribe and fought very hard for many years to be recognised separately and to be represented legally.  Finally Justice Gray ordered that we were to be separated from the Larrakia group and that is the way it remains legally today and that is why we are arguing for the same reason.

And later at paragraph 14, as follows:

Despite disease, Chief Protectors, Native Welfare, Aboriginal Policy, Colonisation, Reserves, Missions, Settlements, Homes, ignorance and racism, the Danggalaba, the only remaining Kulumbiringin (Larrakia) tribal clan to survive, are active today trying, against all odds to seek an equality of life and justice.

The Kenbi Land Claim, the Danggalaba clan and disputes with the Risk applicants

11                  At this point, it is convenient to digress to say something about The Kenbi (Cox Peninsula) Land Claim No. 37(‘the Kenbi Land Claim’) that is mentioned in the paragraphs immediately above.  The Kenbi Land Claim was made under the ALR Act.  The land claimed in it is located on the Cox Peninsula which lies across the harbour from the city of Darwin and includes land surrounding the West and Middle Arms of Port Darwin: see Risk at [22].  The land within the city of Darwin could not be claimed under the ALR Act because “unalienated Crown land” is the only land claimable under that Act and land within a town is expressly excluded from the definition of that expression in the ALR Act: see s 3. 

12                  Some details of the long history of the Kenbi Land Claim, the litigation associated with it and the competing claimant groups that emerged during it, are set out in the introductory paragraphs to the Kenbi Land Claim Report delivered by Gray J on 12 December 2000 (‘the Kenbi Report’), as follows:

History of the claim

The application in the present claim was received on 20 March 1979 by Mr Justice Toohey, the first Aboriginal Land Commissioner under the Land Rights Act.  Even before that, in the first report of the Royal Commission which led to the introduction of the Land Rights Act, Mr Justice Woodward referred to the dispossession of the Larrakia people and their desire to acquire title to land in and around Darwin for community living purposes.  A claim was made to the Interim Land Commissioner in 1975 for part of the Cox Peninsula.  When the Land Rights Act came into operation, the part of the Cox Peninsula now known as the Belyuen community became Aboriginal land.

The long history of the land claim is largely the result of litigation associated with it.  Before it was lodged, the Northern Territory Government promulgated regulations which had the effect of rendering the Cox Peninsula unclaimable, by classifying it as land in a town.  The High Court of Australia held that the first Commissioner, Mr Justice Toohey, was obliged to decide whether these regulations were invalid.  The fourth Commissioner, Justice Olney, held that the regulations were invalid, because they were made for the purpose of preventing a claim to the Cox Peninsula under the Land Rights Act, not for the purpose of town planning.  That decision was upheld by the Federal Court of Australia and the High Court refused special leave to appeal.  In the meantime, there were legal proceedings involving the second Commissioner, Mr Justice Kearney, the High Court and the Federal Court, on the question whether the Northern Territory Government was obliged to disclose certain documents in its possession, relating to the validity of the regulations.  The third Commissioner, Mr Justice Maurice, was also disqualified from hearing the claim by the Federal Court on the ground of reasonable apprehension of bias, as a result of some remarks he made during the hearing of another land claim.

In 1989 and 1990, Justice Olney conducted a lengthy inquiry into the land claim.  His Honour produced a report, in which he concluded that there were no traditional Aboriginal owners of the land claimed.  That finding was set aside by the Federal Court and the matter came to me, the fifth Commissioner.

The claim has undergone changes over the years as to the manner in which it has been put.  Even during my inquiry, between 1995 and 1999, a group of people who were not claimants at the outset asked me to treat them as claimants, and some people who were part of one claimant group asked that they be treated as a separate claimant group.  These changes required the preparation and dissemination of material and the hearing of evidence not contemplated when the inquiry began.  By the end of my inquiry, four groups of claimants were attempting to establish that their members are traditional Aboriginal owners of the land claimed.  For convenience, these groups are called the Tommy Lyons group, the Larrakia group, the Belyuen group and the Danggalaba group.

13                  To put these statements in context, the Larrakia group referred to above, is the same group in the Risk applicants: see [429] at Risk.  The Northern Land Council represented the Risk applicants in both Risk and in the Kenbi Land Claim proceedings.  Some of the people identified as the Danggalaba group members in the Kenbi Land Claim were among the Quall applicants in Risk: see Risk at [429].  In the Kenbi Report, Gray J summarised his conclusions that the Larrakia group was a local descent group under the ALR Act and that the Danggalaba group was not, as follows:

The Larrakia group consists of 1 293 people and is based on a single principle of descent, namely descent from a recognised ancestor of the Larrakia language group.  The group is bound together by its linguistic affiliation.  Although I have doubts as to whether it is properly described as ‘local’, I am bound by authority to hold that the Larrakia group is a local descent group.

The Danggalaba group consists of an indeterminate number of people said to be descended from a member of the Danggalaba clan.  Those who contend for the existence of this group sought to be represented separately from other members of the Larrakia group and to make a claim to the exclusion of all other groups.  They contended, but did not establish, that an error had been made in the genealogies of the Larrakia group and that a man shown on those genealogies as the son of a key ancestor had been the husband of that ancestor, and the adoptive father of her children.  The Danggalaba group is not a group.  Not all of the putative members of the Danggalaba group accept the principle of a descent on which the group is said to be based.  Some do not accept that they are members of such a group.  The Danggalaba group is not a local descent group. 

14                  However, it must be emphasised that the ALR Act sets out substantially different criteria for a successful land claim to that set out in the NT Act for a successful native title application.  The differences between the two pieces of legislation in these respects are mentioned by Mansfield J in Risk at [437] and are aptly summarised in Griffiths v Northern Territory of Australia (2006) 165 FCR 300 at [71] – [74] per Weinberg J.  It follows that these findings of Gray J in the Kenbi Report cannot be transposed to either this native title application, or the Risk native title applications.  Nonetheless, they did provide some forewarning of the difficulties Mr Quall might face in the future in attempting to assert the claims of the Danggalaba Clan.

Competing native title applications lodged by Larrakia/Risk applicants and Danggalaba/Quall applicants

15                  Not surprisingly, these disputes between the Larrakia/Risk applicants and the Danggalaba/Quall applicants in the Kenbi Land Claim have also emerged in the form of competing native title applications under the NT Act over the same areas of lands and waters in and around Darwin.  In Quall, O’Loughlin J described a part of those disputes as follows:

It is now necessary to recount some of the troubled history of the Larrakia native title claims and Mr Quall’s involvement in them.  It will be sufficient, for the moment, to say that, through Mr Risk, the Larrakia people have made several claims for determinations of native title over land and waters in the Darwin area.  It is also sufficient to say that Mr Quall has also made many like claims on behalf of the Danggalaba Clan.  However, whereas the Larrakia claims are over relatively larges areas, Mr Quall’s claims have been over smaller areas.  Two points of importance must be stressed:

·         all the Danggalaba’s claims are within the perimeters of the Larrakia’s claims and, as a consequence, there is overlapping;

·         most of the Danggalaba’s claims were either lodged for or considered for registration by the Tribunal before the Larrakia’s claims.

His Honour then went on to describe the litigation surrounding six such native title applications Mr Quall had registered with the National Native Title Tribunal over areas of land within the larger Larrakia/Risk native title applications which eventually resulted in the registration of those six applications being set aside – one by order of O’Loughlin J and five by consent following that order: see Quall at [26] – [35].

Attachment S to the May 2000 amendments

16                  Returning to Attachment S to the May 2000 amendments to this native title application (ie further to [9]-[10] above), the “Danggalaba Model and Heritage” was described later in that attachment, under that heading, as follows:

15.       The model of the Danggalaba Clan shows the genealogical and ancestral descent.  The genealogy of the upper level is attached.  This evidence is       relevant to the Kenbi Land Claim.

16.       Previous anthropological research on the Larrakia was conducted by Based         (sic Basedow) Spencer, Warner, Elkin, Bandit McCarthy, Walsh, Rose Sutton and Graham.  All confirm that the subject area is undisputed Larrakia    country and not claimed by other groups. Early ethnographers (Spencer,   Elkin, Berndt and McCarthy, cited in Brandl, Walsh 1979: 15) confirmed the      Larrakia historically were comprised of exogamous clans each having its        own “totem” or “dreaming”, were inherited from the father (see Brandl,             Haritos and Walsh 1979; 15-16, 154-155).

17.       It was, and still is the same patrilineal group, we are still the same spiritual            dreaming, nothing has changed.  The above statement is true although we are         not history, we are still alive and kicking. The clan remains intact.  The            native title claimant group traced their descent from the Dungalaba ancestors,             who are not designated in the Northern Land Council anthropological       genealogy they recommend the Larrakia prepared for the Kenbi Land Claim. 

            Their reference K.G. 12-19 is the Deeja Bilawuk Batcho families.  The    Native Title Claim Group not only has matrilineal connection but have during the Kenbi Land Claim clearly stated patrilineal descent.  For this       reason we do not belong to the Larrakia sub-group/family.  And for this    reason Tommy Lyons Imabulk K.G. 3 is also a separate group identified           during the Kenbi Land Claim having apical ancestral connection of the upper             level, being patrilineal.

            The survival of the clan is apparent to the model and kinship of the           Dungalaba Clan.  Several clans once existed a long time ago, but not that    long ago that Aboriginal people cannot remember their descent from such         ancestors.  It was during the Second World War that many Larrakia people             were displaced and died from sickness having been sent to foreign country           around Australia.  It is through the upheaval, misfortunes and dislocations       that preceded, that the Dungalaba Clan, the traditional people for this   country, now exists to carry on the tradition and customs for this country which is called Darwin.  Darwin and Cox Peninsula is within the area     occupied by Aboriginal people speaking the language known as Larrakia.

18.       The traditional land area of the boundary is Cox Peninsula and islands to the         Finniss River, along the river going north of Darwin River to 47 miles to the   Marrakii Crossing along Adelaide River to Gunn Point including the Vernon         Islands along the coast to Cape Hotham.

…

Native Title Claim Groups, Danggalaba Model

21.       The Tomy Lyons (dec) Group

            Frank Belyeun Secretary (dec)

            Boby Secretary (dec)

            Topsy Secretary and families (dec

            Olga Singh (dec)

            Linda Danks (dec) and families

            Prince of Wales

            Jason Singh

            Raylene Singh

            Zoe Singh

            Kathy Mimyama

            Batcho Families

            Pat Lawrie (dec

            Sam Gunduk (dec)

            Dolly Gurrinyee (dec)

            Victor Williams (dec) and families

            Lindy Quall (dec) and families

            Yula Williams and families

            Lucy May and families

            Mary Raymond and families

            Rona Ally and families

22.       We are not a language group, incorporated company group, association inc,          we are a Clan group, a traditional tribe. Once when our ancestors were           abundant and thriving, there existed the traditional Aboriginal society made             up of clan groups who lived in the Darwin area and greater Darwin Rural             area.

…

26.       The Danggalaba clan are people who have links and have always kept     together and respected each other. It is a major factor in maintaining our        attachment to the land, sites and spiritual dreaming. The clan is the    landowners, the lawmakers and custodians of the Danggalaba heritage and           culture. Because other clans no longer exist we are considered the “bosses”          for this country. A language group cannot take over our clan. We are        “bosses”, the traditional owners because we have heritage and culture. We             inherited the knowledge to show that we exist. The Danggalaba clan        succeeds traditional ownership because of the fact that no other clan exists.   The knowledge of sacred significance has been passed on to us by way of          ceremonial Aboriginal traditions. By Aboriginal way, the knowledge proves             family ownership of land.

It is important to bear in mind that these assertions were made in Attachment S in this native title application some seven months before Gray J delivered the Kenbi Report where the existence of the Danggalaba Clan as a separate local descent group was rejected, albeit under the ALR Act: see [13] above. 

17                  It is relatively clear from these statements in Attachment S that as at May 2000, the Quall applicants were asserting that:

a.                   The Danggalaba Clan was the sole surviving clan of the Larrakia people (see     paragraphs 17 and 26).

b.                   The Danggalaba Clan comprised the traditional Aboriginal people for Larrakia   country (see paragraph 16) which was described as including Darwin itself   and the greater Darwin area extending to Cox Peninsula and the islands to the     West, Finniss River to Marrakai Crossing in the south and Adelaide River to      Cape Hotham in the west (see paragraphs 17 and 18).

c.                   The Danggalaba was a patrilineal descent group (see paragraph 17).

d.                  The claims of the Quall applicants were quite separate and distinct from the claims of the Larrakia group in the Kenbi Land Claim (see paragraphs 17 and 26).

e.                   However, the Danggalaba clan claim group did not make its claims to the exclusion of other members of the Danggalaba clan who were not members of this claim group.  In this respect, the heading to paragraph 21 “Native Title Claim Groups” is probably intended to indicate the other members of the Danggalaba clan beyond the eight listed in Schedule A.

f.                     The Danggalaba clan was not a language group or incorporated association       (see paragraph 22) – presumably this is a reference to the Larrakia/Risk group.

July 2000 – further amendments – do not alter substance

18                  On 12 July 2000, O’Loughlin J gave leave to Mr Quall to further amend this native title application by adding three attachments to Schedule B that had been omitted in error.  Those attachments contained detailed descriptions of the longitude and latitude references for the land the subject of this native title application, but did not alter the substance of it.

April 2001 – another native title application by Mr Quall on behalf of Danggalaba clan struck out

19                  On the same day as Mr Quall was given leave to amend this native title application, ie 3 May 2000, O’Loughlin J set trial dates for a related native title application where Mr Quall was the named applicant (NTD6044 of 1998) and two native title applications where Mr Risk was the named applicant, over the same areas of land in the East Arm area near Darwin.  Those areas of land are immediately to the north of the lands claimed in this native title application and are within the Area A part of this native title application that was subsequently dismissed in Risk.  The trial of these native title applications was to commence in Darwin on Monday 19 March 2001. 

20                  When that trial began on 19 March 2001, Mr Risk applied to have the hearing of his two native title applications adjourned and, at the same time, he applied to have Mr Quall’s native title application struck out.  Mr Risk’s strike out application was supported by the Northern Territory, among others.  It was put on three bases: that Mr Quall had failed to comply with various orders of the Court; that the native title application did not comply with s 61(4) of the NT Act, relating to the identification of the native title claim group; and that the native title application had no reasonable prospects of success. 

21                  O’Loughlin J heard Mr Risk’s application and decided he had no alternative but to dismiss Mr Quall’s native title application: see Quall at [77].  In coming to that conclusion, O’Loughlin J dealt at length with Mr Quall’s inability to describe the native title claim group he claimed to represent in that application, ie the Danggalaba clan - the same Danggalaba clan as Mr Quall claimed to represent in this native title application.

22                  In Quall, O’Loughlin J began by noting the fundamental differences between the position taken by Mr Risk in his native title applications and the position taken by Mr Quall in his, as follows (at [5]):

The result thus far is that two aboriginal groups have made competing claims for native title over the same area of land and water.  The Larrakia people, represented by Mr Risk, are prepared to include Mr Quall and the Danggalaba clan as part of their native title claim group.  That, however, is not acceptable to Mr Quall; he maintains that the Danggalaba clan, to the exclusion of those who are represented by Mr Risk, alone has the native title rights over the land and waters that are the subject of the two sets of proceedings.

And further (Quall at [22]):

… Mr Quall will not accept, as sufficient or appropriate, the inclusion of members of the Danggalaba clan in the Larrakia application.  He claims that those whom he represents wish to be separately represented as they are of the view that their interests do not correspond with those of the Larrakia people.

It will be noted that this is the same position as Mr Quall expressed in Attachment S in this native title application, as set out above at [16] and [17].

23                  O’Loughlin J noted that Mr Quall asserted he was making his native title application: “… on behalf of the Danggalaba clan, a group that he identified as being ‘traditionally of the Kulumbiringin Larrakia tribe’ ….”: Quall at [34].  It will be noted that this description of the native title claim group is the same as that described in the May 2000 amended form of this native title application (see [6] and, particularly [9], above).  His Honour then turned to consider who it was that Mr Quall represented, ie who the native title claim group was (Quall at [36]-[59]).  First, he noted that in the original native title application filed with the Native Title Tribunal on 29 September 1998, Mr Quall claimed the application was made “… on behalf of the applicant and others as claimants”, described as “the Danggalaba clan”: Quall at [36].  No other details were provided of the Danggalaba clan.  This is similar to the original form of this native title application (see [5] above). 

24                  Secondly, O’Loughlin J noted that in the first of three amendments made between September and November 1999, Mr Quall described the capacity in which he claimed to make the application as “claimants of the native title group” identified as eight people, who had authorised him to make the application on behalf of the group at a meeting held at 6 Hack Court, Malak.  Whilst O’Loughlin J has not recorded the date of this meeting, because the address is identical, I infer that it was the same meeting at which Mr Quall was authorised to make the May 2000 amended form of this native title application (see [6] above).  Further, whilst the eight people are not named by O’Loughlin J, I infer that they, too, are the same eight people who comprised the native title group described in Schedule A of the May 2000 amended form of this native title application (see [6] above). 

25                  Thirdly, O’Loughlin J noted that Mr Quall made a “significant shift” when he identified the native title claim group in his points of claim (filed on 23 February 2001), as follows (Quall at [40]):

4.         The Applicant group is a group of Aboriginal people who are known as    Danggalaba who have genealogical and ancestral connections (through actual    and putative descent from) as an indigenous community since time    immemorial.’

            …

10.       The Danggalaba are descendants of ancestors of Danggalaba Aboriginal people who survived the frontier of colonialism of Northern Australia.  The           Ancestors of the claimant group, Danggalaba are:  TIMBAT, BLANCHIE,            PAT LAWRIE GUDADJIK, GUNDOOK (SAM), GURRINYEE (DOLLY),        BILLAWUK (DEEJA).

26                  His Honour then observed (at [41]):

This identification of the group in the points of claim is at variance with the description of the native title claim group in Mr Quall’s original application; it is also at variance with the contents of his earlier amended applications.  Of greater significance however, is the fact that it is not identical to the group description that is contained in other documents that were in the same bundle of documents.  I turn then to identify the more significant of those documents.

27                  In one of the documents in the bundle of documents O’Loughlin J then turned to consider, his Honour noted Mr Quall described the applicant group in a way that contradicted the identity of the claim group in other papers (Quall at [43]), as follows:

The Native Title Claim group, the Danggalaba Clan does not exclude anybody who has similar claims to the land and self identify as a Danggalaba Kulumbiringin Aboriginal.

…

Native Title Claimants, Danggalaba Model

…

The membership of the Danggalaba Clan have a principal dreaming UNGA the Crocodile DANGGALABA gunimidjinda, saltwater specie.  The Families include:

The Tommy Lyons (Dec) group

Frank Belyuen Secretary (Dec)

Bobby Secretary (Dec)

Topsy, Secretary and families (Dec)

Olga Singh (Dec)

Linda Danks (Dec) and families

Prince of Wales

Jason Singh

Raylene Singh

Zoe Singh

Kathy Mimyama

Batcho Families

Pat Lawrie (Dec)

Sam Bunduk (Dec)

Dolly Gurrinyee (Dec)

Victor Williams (Dec) and families

Lindy Williams and families

Yula Williams and families

Lucy May and families 

Mary Raymond and families

Rona Ally and families’

It will be noted that these statements and the listed membership of the Danggalaba Clan are similar or, in some respects, identical to the statements contained in Attachment S of the May 2000 amended form of this native title application (see [8] above, re the non-exclusive nature of the native title claim group, and [16(21)] above, re the membership of the Danggalaba Clan).

28                  After reviewing the contents of a number of affidavits made by Mr Quall and others that O’Loughlin J thought contained differing and confusing descriptions of the native title claim group Mr Quall claimed to represent (Quall at [44] – [52]), his Honour concluded with the following observations (Quall at [58]):

I find myself unable to identify, with any degree of certainty, the composition of the native title claim group that Mr Quall says he represents.  As I have said, the information in his proposed amended application is at odds with his points of claim, with his accompanying affidavit, with his original family of eight and with the information in his bundle of documents called “Factual basis for the Native Title Rights and interests claim”.

29                  O’Loughlin J ultimately concluded (Quall at [76]) that:

There is however, in this particular case, the failure by Mr Quall – repeatedly – to identify the native claim group whom he claims to represent with appropriate particularity.  That deficiency can only be regarded as fatal:  and, after two and a half years, I have no confidence that the deficiency can be remedied.  Furthermore, there is the further problem that Mr Quall has not advanced any material that would suggest that he has the authority of the members of his alleged group to make an application on their behalf.

30                  That, of course, brought an end to Mr Quall’s native title application numbered NTD6044 of 1998.  However, Mr Quall had numerous other native title applications on foot at the time, including this native title application.  Whilst the decision in Quall did not directly affect this native title application, given the close similarity between the two native title applications and, particularly the descriptions Mr Quall gave of the native title claim group in Quall and those in this native title application, that decision did serve as yet a further forewarning of the difficulties Mr Quall could face in the future in attempting to assert the native title claims of the Danggalaba Clan – this time in the context of the NT Act.

May 2001 – the Risk consolidated proceedings

31                  As mentioned above, in May 2001, this native title application and a number of other native title applications, insofar as they related to the lands in Area A, ie the urban areas of Darwin, were consolidated into a single proceeding: see Risk at [3].  There were three different groups of native title applicants affected by that consolidation order.  They are identified in Risk (at [2]) as the Larrakia applicants, ie the first applicants in Risk, the Quall applicants, ie the second applicants in Risk and the Roman applicants, ie the third applicants in Risk.  The Risk applicants are obviously the same group as the Risk applicants that have already been referred to above.  The Roman applicants subsequently obtained leave to discontinue their application (see Risk at [13]).

32                  The Quall applicants had lodged eleven native title applications in all.  Mr Quall was named as the authorised applicant in each: see Risk at [2].  The eleven native title applications included this native title application, eight other similar applications and two other different ones: numbered NTD6018 and NTD6019 of 1998.  As counsel for the Northern Territory pointed out in submissions before me, the latter two native title applications were in the same form as this native title application was after the May 2000 amendments: (see [6]-[10] and [16]-[17] above).  Specifically, the latter two applications were said to be made on behalf of the Danggalaba Clan comprising eight people with the surname Quall.  The other nine Quall applications were affected by further amendments, details of which are set out immediately below: see [33]-[37].  This distinction between the two sets of Quall applications is mentioned in Risk at [10].

October 2001 amendments – change to Kulumbiringin native title claim group

33                  On 29 October 2001, Mansfield J gave Mr Quall leave to make a number of further amendments to the first nine native title applications mentioned above, ie this native title application and native title applications numbered NTD6010, NTD6011, NTD6012, NTD6014, NTD6015, NTD6022, NTD6026 and NTD6029 of 1998.  Those amendments made some significant changes to the name of the native title claim group, the membership thereof and the basis upon which each native title application was being pursued.  However, it is notable that the areas of land covered by this native title application remained the same, but they were described as Kulumbiringin land instead of Larrakia country (compare [16(16)], [16(18)] and [17b.] above with [36-3] below).  The following paragraphs provide a summary of those amendments.

34                  First, the name of the native title claim group was changed in Part A, Section 2 from the members of the Danggalaba clan to the Kulumbiringin.  Secondly, schedule A was changed to claim that the native title claim group was comprised of Yula Williams and seven other people with the surname Williams, Mary Raymond and seven other people with the surname Raymond, Rona Alley and five other people with the surname Alley and Ron Quall and four other people with the surname Quall, including Mr Tibby Quall.  By comparison with the membership described in schedule A in the May 2000 amended form of this native title application (see [6] above), eight Williams, eight Raymonds, six Allys and Denise Quall were added and four people with the surname Quall were excluded, ie Kevin, Natasha, Sarah and Linda.  However, with one exception I will mention in a moment, the membership of this claim group was essentially the same as that described in clause 21 of Attachment S in the May 2000 amended form of this native title application (see [16(21)] above).  This suggests that the membership of the native title claim group was expanded to include all the members of the Danggalaba clan (see [17e.] above).  The notable exception is that the Tommy Lyons group has been omitted.  The same omission has occurred in the recast form of Attachment S (see [36-4] below).

35                  Thirdly, some changes were made to Schedule F.  The first part of it remained the same, including the section headed (a) association with the area.  However, section (b), which was headed “traditional laws and customs”, was changed to replace the Danggalaba clan with the Kulumbiringin.  The same change was made throughout section (c) which was headed “continuing to hold native title”.  In addition, the following paragraphs were added to the end of Schedule F:

The interest and rights we have is because we are the Kulumbiringin group (a traditional tribal concept).  We are a clan group that still exists since time immemorial. 

The rights and interests we share is the knowledge that has been passed on from ancestors of the past to the present decedents, who are today in claiming our heritage. The rights and interests come from traditional laws and customs by way of on-going ceremonies that have been done exclusively by Kulumbiringin men and women in the Darwin area and adjacent land, the Cox Peninsula.  We are connected by the Kulumbiringin dreaming tracks that come from creation time. Nothing has changed. It is only by way of the Kulumbiringin ancestors that the knowledge is with us today. We have our customary rights and interests passed on from ancestors who have maintained the customs and more through ceremonies and customs affiliated to our families.

…

Further description of our native title rights and interest are contained in Attachment S

36                  Fourthly, Attachment S was substantially recast.  Some parts were omitted entirely; other parts were retained, but placed under different headings with slightly different wording; and some parts were added.  The following is a summary of the more significant changes:

1.                  The introductory clauses including the statement as to the non-exclusive nature of the native title claim group were omitted (see at [9(3)] and [17e.] above).  This appears to be correlated to the expansion of the native title claim group to include all the members of the Danggalaba claim (see [34] above).

2.                  Consistent with the position they had adopted much earlier (see above), the Quall applicants make it clear in the concluding sentences of the recast version of Attachment S that they are separate and distinct from the Larrakia/Risk applicants, as follows:

We do not share the same affiliations and attachments to other claimant groups of any other land claims, on the same land or subject areas. 

We have not given permission to the Northern Land Council to add our names to the Larrakeyah Language group claimants list.

We have not been consulted for authorisation to add our names.

This theme is pursued at various points throughout Attachment S, as is exemplified in the following paragraphs (emphasis added):

Our family were considered as part of the Aboriginal community at the time of [the “half caste policy” in force under the Aboriginal Protection Act (sic)].  The records show that they were Larrakeyah people and that they were employed as such [during the mid 1900s].  Our families were not taken away under the “half caste” policy because they were not considered as “half caste” and that they remained in Darwin all the time and worked as labourers, cooks, cleaners, housemaids, and many other employment duties for the Government establishments and private enterprises.  Our families carried on the traditional customs and laws and that they were the ones that maintained the ceremonies.  To this day we would not recognise any of those persons who call themselves the Larrakeyah language group to have ever been to partake of any Larrakeyah ceremony of the past, let alone maintain such responsibilities.  Our family participated in the ceremonies until it stopped at the Larrakeyah Barracks and moved to Cox Peninsular called Darramarrangamanidg.  It was during the Kenbi land claim evidence showed that most larrakeyah language group learnt evidence from reading the material from books.

There is no other way, according to tradition laws and customs.  Unlike, to actually belong to such a group as a language group.  To say that everyone belongs to a language group is nonsense.  The aboriginal law does not allow that sort of a group.  Aboriginal descent and law and customs are determining the future.  It is something that’s there before you were born.  You inherit it.  It’s the law and customs that distinguishes your presence and its not going away.  To belong to tradition is to remain within your culture.

A language group means that all as a group having the same language denotes land owners.  Quite the opposite to moieties.  The moiety system designates a division because of aboriginal law and customs.  Aboriginal law and customs does not come from a language group or make a language group.

3.                  The paragraphs describing the identity of the Danggalaba Clan vis-à-vis the Larrakia/Kulumbiringin tribe (paragraphs 4 and 14 of the original Attachment S – see at [10] above), the Danggalaba Model and Heritage (paragraphs 15-17 inclusive of the original Attachment S – see at [16] above) and the Danggalaba membership (paragraphs 21-22 inclusive of the original Attachment S – see at [16] above), have all been omitted.  Instead, the native title claim group is described as the Aboriginal Kulumbiringin in the following terms (emphasis added):

The Native Title Applicants are the Aboriginal Kulumbiringin.  We define our group as a kinship group, a Community group (collective family) and a local group.  The group acknowledges and practices the traditional and customary cultural law because of its eternal connection to Aboriginal Land in the Darwin region, and subject areas, what we call Kulumbiringin land.

Kulumbiringin is the original name of Aboriginal people who have lived here from time immemorial and still do at present.  It is the traditional name.  It is our language. 

We consider that ‘Larrakeyah’ is a word that has been used in historical times to describe the Aboriginal people of the Darwin region.  Nonetheless, this term will be used in this report where it has been used in referenced sources.

Our ancestors and our families have been named as being Larrakeyah, Kulumbiringin, Binimidginda and Gummajerrumba; (Basedow 1906).  Clan names that have survived are Danggalaba and Marri.  The name that has been used the most to describe the aboriginal people who have a long history of Darwin has been the name Larrakeyah.

… T Secretary (deceased) A Elder, a Tribal leader, and a legitimate witness of land claims of Darwin and the Kenbi land claim distinguishes the word Larrakeyah as a non Aboriginal word and insists that the real word describing Aboriginal people of Darwin is Kulumbiringin.  It is only traditional Aboriginal name, for this land and its people who originated here.  It is not a name that was invented.  To follow one’s decent traditionally supposes that the roots from the past must follow on to the present like ecology, a species survives if it keeps its link to the past strong and unbroken.  We, the native title claimant group members who have survived today, can show that we were connected to this land and that we have maintained this connection, which enables us to make the present application.  We claim our rightful ownership of this country and therefore have to exclude others who are not of the Kulumbiringin native title claimant group.  We can produce numerous proofs of an ongoing connection to the land and to our traditional Ancestors.  The families who constitute the native title claimant group are a local group in every sense of the term.

We are indigenous to this country and we carry on a tradition of customs and law.  The native title claimant group as a cultural group has a physical, cultural, spiritual affiliation to the land.  This group has a connection of spiritual and religious totems which are significantly attached to them and the land.  In Aboriginal law, family groups hold a place of importance and hold customary roles, and responsibilities to practice and to withhold.  The significance of such totems defines the relationship between people and land.  The many sacred sites are our responsibility.  We are custodians.  They are joined spiritually to us, it is our religion.  To not recognise our spiritual attachment to the land is an insult to aboriginal culture and the aboriginal race of Australia.  Aboriginal law is one law which is designed for the purpose of connecting groups of people to the ongoing of aboriginal culture, it is recognised since the Mabo case.

4.                  The membership of the Kulumbiringin claim group is described in the following terms:

The member of the Kulumbiringin group can trace their descent through the apical ancestors:

Sam Gundook (male), Dolly Gurrinyee (female) Dedja Batcho (female) were sisters and brother.

Their children include: Linda Quall (deceased) Mary Raymond, Rona Alley and Yula Williams.  Yula’s children, Linda’s children, Mary’s children and Rona’s children are also descendants who constitute the native title claimant group.  Membership to this native title claimant group implies to be a descendant of Yula Williams, Linda Quall (deceased), Mary Raymond and Rona Alley.

Members of the group can trace their descent to the Kulumbiringin apical ancestors either through the male and female line, a requirement for Aboriginal law.  Persons who are not Kulumbiringin by descent do not have a Kulumbiringin affiliation.

The native title claimant group affiliation and connection to the land through law and customs hold a spiritual and religious attachment by Aboriginal law.  

37                  From the time of the October 2001 amendments, throughout the hearing of the consolidated proceedings in Risk and, indeed, to the present time, this native title application has remained in the same form.  In particular, it was and is said to be made on behalf of the Kulumbiringin native title claim group as described in the foregoing paragraphs.  In one of the opening paragraphs of his decision in Risk, Mansfield J described the claims made in the various Quall native title applications, including this one, as follows (Risk at [10] and [11]):

Mr Quall is the named applicant for the second applicant group.  As seen above, he filed 11 native title determination applications under the NT Act.  The native title claim group is referred to in DG6018/1998 and DG6019/1998 as ‘members of the Danggalaba Clan’, comprising eight people, including Mr Quall, Ronald Keith Quall, Diana Deeja Quall, Phillip Rupert Quall, Kevin Andrew Quall, Natasha Anne Quall, Sarah Audrey Quall and Linda Muriel Quall.  In other applications, the native title claim group is referred to as the ‘Kulumbiringin’, comprising the descendents of Kulumbiringin ancestors ‘according to Aboriginal law and custom’, including four elders and their family groups.  The four elders include Yula Williams, Mary Raymond, Rona Alley and Ron Quall.  As noted, all of the individuals named in the Quall applications are listed as Larrakia people in the list of Larrakia people on whose behalf the Larrakia applications are made.

Mr Quall, the named applicant for the second applicant group, submitted that the Larrakia people ought not be awarded native title over the claim area, as the group is simply a language group.  He submitted that the members of the Larrakia applicant groups have lost their culture, and that it is the Danggalaba clan (or the Kulumbiringin clan) who have continued to observe and acknowledge traditional laws and customs and to maintain their connection to the relevant land and waters.

Quall applicants fall back to Danggalaba clan case

38                  However, during final submissions in Risk, Mr Quall elected not to further pursue the Kulumbiringin case, but instead reverted to the Danggalaba clan case as described above.  In it’s decision on Mr Quall’s appeal from the decision in Risk: Risk v Northern Territory of Australia [2007] FCAFC 46 (‘Risk FC’), the Full Court described this change of position in the following terms (Risk FC at [171 and[176]):

[171]    Mr Quall’s oral submissions, to the extent they dealt with the issue of laws           and customs of a society would again seem confirmatory of the relevant laws         and customs being the Danggalaba’s (the Kulumbiringin based claims seem,          by this stage, to have been collapsed into the Danggalaba claims).  In             particular, as the quotations we have given suggest, the tenor of what is said         about laws and customs seems group specific (ie “our laws” and “Aboriginal       laws and customs of other groups”).

[176]    … The applications in which the claim groups were framed as being named          descendants of             Kulumbiringin    ancestors having fallen away in closing oral         submissions (unsurprisingly given the evidence of three of the four named       elders in the Quall/Kulumbiringin applications), his Honour was then left       with the claim of the Danggalaba Larrakia clan – a claim which, probably,            was required to             be assessed in light of the above finding but which his      Honour rejected on another basis.  It was this claim that his Honour     addressed primarily in his reasons.

Some of the evidentiary difficulties Mr Quall had in adducing evidence in support of both the Kulumbiringin case and the Danggalaba clan case are identified by Mansfield J in Risk at [796]-[797]: see [42 below].

September 2002 – December 2004: the hearing of the consolidated proceedings in Risk

39                  The consolidated proceedings in Risk proceeded to hearing before Mansfield J between September 2002 and June 2004, with written submission continuing up to December 2004.  Mansfield J delivered his decision on 12 April 2006.  It is difficult to convey in words the enormity of the task undertaken by Mansfield J.  The hearing lasted 68 days in all.  It involved 47 Aboriginal witnesses, 26 witnesses called by the respondents and numerous expert witnesses.  The evidence incorporated many thousands of pages of transcript and exhibits, including the transcript of the Kenbi Land Claim hearing (see Risk at [434]).  The decision extended to almost 270 pages.

April 2006 - the decision in Risk – all 19 native title applications dismissed

40                  After an extensive examination of the evidence and a thorough consideration of all the relevant issues, Mansfield J concluded that all of the 19 native title applications, including Mr Quall’s eleven native title applications (in so far as they related to Area A), must be dismissed. 

41                  In relation to all of the native title applications, his Honour concluded:

1.                  Within the geographical area which includes the claim area, at sovereignty (1825), at settlement (1869) and thereafter during the 19^th Century, there existed an Aboriginal society, namely the Larrakia peoples (which for convenience, his Honour assumed included both the Risk applicants and the Quall applicants: see at [96] and [794]), that had a normative system by reason of their traditional laws and customs which created rights and obligations possessed by them in relation to the land and waters of the claim area: see Risk at [232]-[233].

2.                  The present society comprising the Larrakia peoples do not have rights and interests possessed under the traditional laws acknowledged, and the traditional customs observed, by the Larrakia peoples at sovereignty in the sense explained by the High Court in Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58 (‘Yorta Yorta’), because as a result of a combination of historical events which occurred during the 20^th Century there has been a substantial interruption in the practice of the traditional laws and customs of the Larrakia peoples as they existed at sovereignty and at settlement, so that their practise and enjoyment has not continued substantially uninterrupted since sovereignty (see Risk at [812]-[823] and summarised at [834]-[835]).

42                  In relation to Mr Quall’s eleven native title applications, his Honour’s conclusions included the following (Risk at [795]-[801] (emphasis added)):

[795]    … for the reasons explained in this judgment, it has not led me to concluding that the current laws and customs governing the “Larrakia people” are “traditional” in the sense required by s 223(1)(a) of the NT         Act.

[796]    I reach the same conclusion if I address that issue concerning the laws     and customs of the Danggalaba clan.  Mr Quall claimed that clan is the       only one which has maintained the traditional laws and customs of the        society which existed at sovereignty and to the present time. I am mindful            that I should distinguish between his evidence and his submissions.  It is of      course necessary to have regard to all his evidence.  I have done so.  I also have regard to his submissions, but only to the extent that they have a             foundation in the evidence.  The assessment of his claim must also be made         upon the whole of the evidence.

[797]    Mr Quall was clearly not supported by other persons (other than his sister)           who, he said, were members of the Danggalaba clan.  His sister Dianne Quall          also was less precise than Mr Quall about the independent significance of the   Danggalaba clan and the details of its laws and customs.  Other persons who             Mr Quall said were members of the Danggalaba clan, some of whom he described as the seniors or elders of that clan, gave evidence about the        existence of the wider group comprising the first applicants.  Their evidence did not explain with any precision the separate, independent existence of the         Danggalaba clan.  Nor did they regard it as the current, ultimate repository of             the laws and customs of their predecessors in the Darwin area.  They did not   describe the laws and customs of the Danggalaba clan as distinct from those         of the first applicants. …

[798]    There is therefore uncertainty, or inconsistency, about the composition of the        Danggalaba clan and the rules governing its structure.  There is also, on the     evidence, no satisfactory foundation for finding that the second applicants     practise and enjoy certain rights and interests which arise under laws and             customs which they only have inherited from or had passed on to them by            their predecessors back to sovereignty.  On the evidence, there is also no     satisfactory foundation for concluding that the laws and customs reflect or   derive from the normative system of the Aboriginal society which existed at             sovereignty. …

…

[800]    Accordingly, I am not satisfied that there is a separate more confined        society of Aboriginal persons comprising the second applicants who,             alone among those who comprise what Mr Quall called the wider          ‘Larrakia language group’, possess rights and interests under             ‘traditional’ laws and customs by which they have a connection to the        land and waters of the claim area.

[801]    Indeed, the fact that there was a diversity of evidence about the     composition and status of the Danggalaba clan, both from persons who Mr          Quall claimed to be members of that clan, and from other witnesses, together           with the fact that there was diversity of evidence about the laws and customs             of that group compared to those of the wider group comprising the first    applicants, tends to support my more general conclusions referred to    below.

May 2006 – final orders made by Mansfield J

43                  On 17 May 2006, about a month after he delivered his decision, Mansfield J made orders to reflect it.  The relevant part of those orders were as follows:

THE COURT ORDERS, DECLARES AND DETERMINES THAT:

1.                  Native title does not exist in relation to any part of the land or waters the subject of the applications comprising this consolidated proceeding as described in the attached Consolidated Proceeding Claim Area List.

AND THE COURT FURTHER ORDERS THAT:

2.                  The applications comprising this consolidated proceeding (NTD6033 of 2001) be dismissed to the extent of the consolidation as follows:

(a)        in relation to proceedings … NTD6013 of 1998 … they are dismissed to the         extent that these proceedings seek a determination of native title in relation to        an area referred to in the attached Consolidated Proceeding Area List; …

I have summarised the effect of these orders on this native title application at [2] above and I do not need to repeat that.  I should add that the southern part of the claim area in this native title application, ie the lands in Area B, are immediately to the south of the southern boundary of Area A.  The lands in Area B are located in the Litchfield area about 20 km south-east of the Darwin CBD and about 10 km south of the Palmerston CBD. 

2006/2007 - Quall applicants appeal to the Full Court – raise Top End society case

44                  To complete the procedural history, both the Risk applicants and the Quall applicants appealed the decision of Mansfield J to the Full Court: (see Risk FC).  The Full Court dismissed both sets of appeals.  The main thrust of Mr Quall’s appeal before the Full Court was an assertion that Mansfield J “failed to consider the substance of the case advanced by the Quall appellants at trial and by so doing did not properly identify the relevant society that was the source of the traditional laws and customs by which, at sovereignty, the Larrakia people had rights and interests in the application area” (see Risk FC at [115]).  The relevant society was described to the Full Court as “the Aboriginal society in the region stretching from Cox Peninsula to West Arnhem Land”, including the Larrakia people, which society was referred to variously as the ‘Top End society’ or ‘people of the Top End’”: see Risk FC at [115].  Hereafter in these reasons, I will refer to this as ‘the Top End society case’.

45                  The Full Court conducted a thorough review of the case Mr Quall advanced at trial (Risk FC at [120]-[147]) and concluded that no such case was put to Mansfield J.  In the process, it reviewed Mr Quall’s evidence and submissions including his opening statement before Mansfield J (Risk FC at [134]), parts of his evidence (Risk FC at [135]-[137]), other evidence he relied upon (Risk FC at [155]) and his oral (Risk FC at [142]-143]) and written submissions (Risk FC at [144]-147]).  Finally, it reviewed the decision in Risk (Risk FC at [148]-[156]).  It then reached a series of conclusions in which it soundly rejected Mr Quall’s appeal (Risk FC at [164]-[179]).  They proceeded along the following lines. 

46                  First, the case put to Mansfield J by Mr Quall was initially based upon the traditional laws and customs at sovereignty, of the Kulumbiringin (or the Larrakia) society, and fell away to the Danggalaba clan, as follows (Risk FC at [168]-[172]):

[168]    It is clear from the outset that the cases being put by the Quall appellants in          their various applications were based upon traditional laws and customs that    were the laws and customs specific to either the Kulumbiringin (or the           Larrakia society at sovereignty) or the Danggalaba clan.  A fair reading of the             applications would not reasonably lead the audience to which they were   addressed to any other conclusion.  The Schedule F description of the    traditional laws and customs in the illustrative application in the Second        Supplementary Appeal Book makes no reference to any wider laws and   customs or to any broader society.  Attachment S to Schedule S of the        application is both dense and not free from ambiguity.  It does not, in the           context of what is said in the application, convey any clear contrary meaning.       To have ascribed to it the meaning suggested in this appeal requires that it be            divorced from its context and that distinctive “dictionary” meanings be given    to particular terms and notably to “Aboriginal Law”, though such were not   given to his Honour. 

…

[171]    - set out at [38] above.

[172]    Distinctly, the two written submissions so much relied upon in support of the         appeal cannot sustain the weight given them.  The second of them, and             probably the first as well, were filed after the conclusion of the evidence.        The second, as his Honour seems to indicate, would appear to contain some             degree of assertion which lacks a basis in the evidence.  The Northern     Territory has made a submission to this effect.  Insofar as the second submission is said to reveal Mr Quall’s case on a basis different to that which   we consider had been put to that point, it by no means does so unequivocally         or unambiguously.  On the contrary. It repeatedly refers to Danggalaba        Larrakia Laws and Customs – a usage wholly consistent with one of the two        bases on which the primary judge assessed the Quall appellants’ case. 

47                  Secondly, Mr Quall did not put a case to Mansfield J based upon the Top End society and Mansfield J was not required to consider or make findings about such a case, (Risk FC at [176] - set out at [38] above).

48                  Thirdly, and in summary, the case the Quall applicants ultimately put in Risk, ie the Danggalaba clan case, had failed for a number of independent reasons, as follows (Risk FC at [177]):

[177]    As with the Larrakia people, it was held that the current laws and customs of       the Danggalaba clan were not “traditional” in the sense required by s 223(1)(a) of the Act:  [796].  More fundamentally, however, it was concluded (i) there was uncertainty or inconsistency about the composition of the     Danggalaba clan and the rules governing its structure:  [797]-[801] ;  (ii)          there was no satisfactory foundation for finding that the Quall appellants       practise and enjoy certain rights and interests which arise under laws and             customs which only they have inherited from, or have been passed on to   them by, their predecessors back to sovereignty:  [797]-[798];  and (iii) there             was no satisfactory foundation for concluding that the Danggalaba laws and    customs reflected or derived from the normative system of the Aboriginal             society which existed at sovereignty:  [798]. 

March 2008 - Quall applicants seek special leave to appeal to the High Court

49                  Mr Quall sought special leave to appeal the Full Court decision to the High Court of Australia.  The High Court rejected that application on 7 March 2008.  In his submissions to the High Court Mr Quall challenged the finding that the Danggalaba clan (or the Larrakia/Kulumbiringin) had ceased to follow their traditional laws and customs and re-stated his long-standing opposition to the claimsof the Larrakia/Risk applicants, as reflected in the following excerpt from the High Court transcript:

MR QUALL:

Well, they got it wrong where - they stated that it was discontinued between 1937 through to 1940s, which is, you know, during the war time, and there is no government document to say that Aboriginal people had stopped continuation of practising Aboriginal laws and customs. There is no - if there was a document that said that we did, well, you know, I would believe it. But my family never left Darwin, they always remained in Darwin, and practising of traditional laws and customs has always taken place, and there was no strict regulations even during the time of Aboriginal people being incarcerated in Cullen Bay or other regulation that were made for Aboriginal people. They were not consistent of confining Aboriginal people to practices of traditional laws and customs.

The evidence that I provided, all the traditional evidence that I provided was not accounted for, and our position that we were - we had no similarities with the Larrakia’s evidence. Their evidence was based on hearsay provided by the Land Council, and even - you could look at the documents of the affidavits made by the Land Council, Bill Risk and Pauline Baban who were members of the stolen generation, the evidence that we provided, that we always opposed the Larrakia claim because we had no similarities with the - on our evidence with theirs.

50                  Hayne J dismissed Mr Quall’s application for special leave to appeal stating that:

The issues which the applicant, in the written submissions, sought to agitate in this Court focused largely upon whether the case which the applicant had sought to make at trial was properly understood and fully considered. The Full Court of the Federal Court of Australia examined those issues and considered that there had been no failure of the kind alleged. We see no reason to doubt the correctness of those conclusions of the Full Court. The particular complaints advanced in the course of oral argument this morning focused upon the assessment of the evidence led at trial that had been made by the trial judge. In this respect, we are not persuaded that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave to appeal. For these reasons, special leave to appeal is refused.

April 2008 – the Northern Territory’s strike out application - the material relied upon

51                  The Northern Territory filed this strike out application in April 2008.  At the first directions hearing on 22 April 2008, I ordered Mr Quall to file and serve any affidavit material upon which he wished to rely.  On 6 May 2008, Mr Quall affirmed an affidavit in which he complained that he was not able to properly present his case before Mansfield J because of a lack of resources and funding.  He claimed he was not able to call the following witnesses to support his case and if he had been able to, he would have “have presented a stronger argument”:

Phillip Quall

Henry Jorrack

Dr Bill Day

Eddy Williams

52                  Significantly, Mr Quall did not indicate what these witnesses might say, or provide any details of the case he intended to put.  More significantly still, he gave no indication that he wished to present a different case to that argued before Mansfield J – only that he would have been able to present that case more strongly.

53                  Mr Quall was represented by counsel at each of the hearings of this strike out application.  He successfully sought a number of adjournments to allow him further time to present further materials and to prepare his opposition to the application.  He did not file any further evidence.

contentions

The Northern Territory’s submissions

54                  Ms Brownhill appeared on behalf of the Northern Territory and made extensive and detailed submissions which I found very helpful.  Ms Brownhill said the Northern Territory relied upon O 20 r 4(2) of the Federal Court Rules which she submitted applied to these proceedings because they were issued before 1 December 2005. 

55                  Relying upon the High Court’s decision in Members of the Yorta Yorta Aboriginal Community v State of Victoria and Ors (2002) 214 CLR 422 (‘Yorta Yorta’) Ms Brownhill submitted that there were seven matters an applicant needed to establish to succeed in a native title determination application such as this.  They were as follows:

1.                  at sovereignty, there was a group of Aboriginal people having rights and interests in relation to certain land or waters;

2.                  at sovereignty, those rights and interests were possessed under an identified body of laws and customs;

3.                  at sovereignty, that body of laws and customs comprised a normative system of a particular “society” (or “community”);

4.                  at sovereignty, that society was united in and by its acknowledgement and observance of the body of laws and customs;

5.                  acknowledgement and observance of the pre-sovereignty body of laws and customs has continued, substantially uninterrupted, by each generation of that society since sovereignty;

6.                  the claimants today acknowledge and observe a body of laws and customs which is substantially the same normative system as that which existed at sovereignty; and

7.                  the pre-sovereignty normative society has continued to exist throughout the period since sovereignty as a body united in and by its acknowledgement and observance of the laws and customs.

56                  Ms Brownhill submitted that these matters were identified by Mansfield J in Risk at [46]-[58] and his Honour confirmed at [230] that it was necessary for the applicants to establish all of these matters to succeed.  She submitted that Mansfield J had reached the following relevant conclusions about these matters in his decision as follows:

·                    Points 1 to 4 – the society of Aboriginal persons at sovereignty whose traditional laws and customs comprised a normative system under which it possessed rights and interests in the lands and waters in the claim area was the Larrakia peoples also known as the Kulumbiringin: see Risk at [232]-[233];

·                                                               – there was not a separate, more confined, traditional Aboriginal society at sovereignty comprising the Danggalaba clan, within the wider Larrakia language group, that by the traditional laws and customs of its normative system possessed rights and interests in the lands and waters in the Darwin area: see Risk at [796]-[801].

·                    Points 5 to 7 – the current Larrakia society has not carried forth the acknowledgement and observance of the  traditional laws and customs of the Larrakia people such that they have had a continued existence and vitality since sovereignty: see Risk at [812], [816], [820], [823], [831], [835] and [839]; and

57                  Ms Brownhill then took me to the claims being made by the Quall applicants before Mansfield J.  She submitted that this native title application (NTD6013 of 1998) is a Kulumbiringin type application.  Ms Brownhill submitted that the connection between the Kulumbiringin described above, and in the eight other Kulumbiringin claims; and the two Danggalaba claims, was explained by the Full Court in Risk FC at [118] as follows:

It is appropriate to begin with a note on nomenclature.  There are eleven native title determination applications for which Mr Quall was the named applicant.  In two of these the native title claim group is referred to as “members of the Danggalaba Clan”.  In the remaining nine the group is referred to as (listed) “descendants of Kulumbiringin ancestors and constitute the Kulumbiringin according to Aboriginal law and custom”.  As we understand it from the appellants’ reply submissions, “Kulumbiringin” was the term used by the Larrakia people to describe themselves at the time of sovereignty.  The significance of this community of identity will become apparent below.  The word “Danggalaba” refers to a clan, or subset, of the Kulumbiringin tribe.  The primary judge found that, though the Larrakia had a patrilineal clan system which had ceased to exist, the Danggalaba was the one clan that continued to exist:  [558].  In the material before us there has not been altogether consistent usage of these descriptors.  Equally Mr Quall on occasions used the terms “Danggalaba Larrakia” to refer to the clan as such. 

58                  It followed, so Ms Brownhill submitted, that the terms ‘Larrakia’ and ‘Kulumbiringin’ both refer to the Larrakia people and where Attachment S is referring to Kulumbiringin country, it is referring to the same country as Larrakia country.  She referred me to a map prepared by Tindale that was in evidence before Mansfield J which shows the country around Darwin as Larrakia country.  Further, she pointed out that all of the people named in Schedule A to this native title application were named in the wider Larrakia claim group in Risk: see Risk at [9], [10], [34] and [795].  Indeed, as Mansfield J records in Risk at [797], they gave evidence in support of the wider Larrakia claim group and not the narrower Danggalaba claim group postulated by Mr Quall.  Ms Brownhill also pointed out that the Full Court had made a number of observations to the effect that the Kulumbiringin and the Larrakia were the same people: see for example Risk FC at [156] and [176].  She submitted that the term ‘Danggalaba’ was used to describe the last remaining patrilineal clan group of the Larrakia in Risk at [488]-[490], and particularly at [558]. 

59                  Ms Brownhill submitted that the claims made by Mr Quall in Attachment S to this native title application, to the effect that the Kulumbiringin were distinct from the wider Larrakia and that the former were the relevant Aboriginal society at sovereignty, while the latter were not, were rejected in Risk.  In support of this submission she took me to the observations of the Full Court that Mr Quall’s claim fell away before Mansfield J from one involving the Kulumbiringin tribe to a claim involving the Danggalaba Larrakia clan (see Risk FC at [176]).  She submitted that this claim was rejected by Mansfield J in Risk at [795]-[801] on the basis of an insufficiency of evidence and the Full Court confirmed as much in Risk FC at [177]. 

60                  Ms Brownhill emphasised that the Top End Society identified by Mr Quall’s counsel before the Full Court differed again from any of the groups mentioned above, as appears from the Full Court decision: Risk FC at [117], [121] and [157].

61                  Ms Brownhill pointed out that the Full Court concluded that this Top End society case was not put to Mansfield J in Risk and that his Honour properly determined the case that Mr Quall did put, ie that based on Kulumbiringin laws and customs and/or Danggalaba laws and customs: Risk FC at [167] and [175]-[176].

62                  On the principles relating to issue estoppel, Ms Brownhill referred me to the three High Court decisions of Kuligowski v Metrobus (2004) 220 CLR 363 (‘Kuligowski’) at [40] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, Ramsay v Pigram (1968) 118 CLR 271 at 276 per Barwick CJ and Blair v Curran (1939) 62 CLR 464 at 532 per Dixon J.  Based on these authorities, she submitted that the findings made by Mansfield J in Risk related to the ultimate facts which founded any successful native title application and Mansfield J had made a final decision thereon. 

63                  Ms Brownhill conceded that the parties in the consolidated Risk proceedings were not identical to the parties in this native title application because the Litchfield Shire Council is a respondent in this native title application and was not a party in Risk.  However, she submitted that the addition of this party did not affect the application of the principles of issue estoppel because the decision of Mansfield J in Risk was a decision in rem.  On this point Ms Brownhill referred me to a series of decisions including: PE Baker v Yehunda (1998) 15 NSWLR 437 at 442 and 446, per Hope, Samuels and McHugh JJA; Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 51 at [44] per Lindgren J; Brock v Minister for Justice and Customs [2007] FCA 2091 at [65] and [70] per Flick J; Wik Peoples v Queensland (1994) 49 FCR 1 at 4 per Drummond J and WA v Ward (2000) 99 FCR 316 at [190] per Beaumont and von Doussa JJ.

64                  The critical issues that Ms Brownhill submitted were determined in Risk and that Mr Quall is estopped from pursuing in this native title application, are as follows:

1.                  That the Aboriginal society at sovereignty, that by the traditional laws and customs, of its normative system, possessed rights and interests in relation to the lands and waters in the Darwin area, inclusive of Area A, was some Aboriginal society other than the society of the Larrakia/Kulumbiringin peoples identified by Mansfield J in Risk; and

2.                  That there has been no substantial interruption in the acknowledgment and observance of the laws and customs of that society of Larrakia/Kulumbiringin peoples since sovereignty.

65                  On the principles relating to abuse of process, Ms Brownhill referred me to the decision of Spalla v St George Motor Finance Ltd (No 6)[2004] FCA 1699 (‘Spalla’) at [58]-[70] per French J.  She submitted that the two conclusions referred to above were critical to the determination of this native title application and it would be an abuse of process to allow Mr Quall and the Quall applicants to pursue those issues in this native title application when they have already been determined against him and the Quall applicants in Risk.  Further, Ms Brownhill submitted that it would be oppressive and unfair to allow Mr Quall and the Quall applicants to further pursue these issues; that he (and they) had been given every opportunity to present their case before Mansfield J, as the Full Court observed in Risk FC at [119] and [134]-[147]; and that this was so even though he was unrepresented during most of the hearing before Mansfield J.

66                  In relation to Mr Quall’s affidavit affirmed 6 May 2008, Ms Brownhill submitted that it was fundamentally deficient.  She submitted that Mr Quall had not explained why he was unable to call the four witnesses listed in that affidavit at the hearing before Mansfield J.  Moreover she pointed out that two of the witnesses - Mr Phillip Quall and Mr Eddy Williams - were Mr Quall’s brother and cousin respectively and Ms Chong-Fong’s affidavit sworn on 9 May 2008, (which is before me in this strike out application), establishes that these two witnesses sat with Mr Quall in Court during parts of the hearing before Mansfield J.  Further, Ms Brownhill submitted that it was incumbent upon Mr Quall to do more than simply assert that he could not call this evidence before Mansfield J.  Finally, Ms Brownhill submitted that Mr Quall had not explained in his affidavit precisely what evidence he intended to call to establish this native title application and this was particularly significant since it was not specialised evidence but evidence relating to the laws and customs of the native title claim group Mr Quall represented and, therefore, evidence that was held by them alone.

67                  In support of her contention that it was not in the interests of justice to allow Mr Quall to pursue this native title application, Ms Brownhill submitted that:

(a)        if this native title application were to be allowed to proceed to determination, that could result in conflicting determinations of the Court on what the normative Aboriginal society was at sovereignty; and

(b)       it would be a waste of public funds and the resources of the Court to proceed to determine the issues raised by this native title application as to what the normative Aboriginal society was at sovereignty for the areas in and around Darwin, when so much public funding, resources, and effort have already been devoted to the same issue.

68                  On the question whether this native title application can possibly succeed, Ms Brownhill referred me to the High Court’s decision in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (‘General Steel’) at 130; and more recently in Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256 (‘Batistatos’) at [51].  Based on those authorities, she submitted that Mr Quall could not possibly succeed in this native title claim because the conclusions of Mansfield J in Risk on the seven matters set out above (at [55]), which are fundamental to a successful native title application, necessarily meant that he could not possibly succeed here.

Mr Quall’s submissions

69                  During the earlier stages of this strike out application, Mr Quall was represented by Mr Matthews.  During the course of the various adjournments of the hearing of the application, Mr Quall changed solicitors and at the final day’s hearing he was represented by Mr Loizou.  Mr Loizou began by submitting that Mr Quall represented the Danggalaba clan group.  He submitted that this was a core group made up of the Batcho family.  He submitted that the Kulumbiringin is the tribal name incorporating the Danggalaba clan.  Kulumbiringin as the tribal name is to be distinguished from the Larrakia/Risk applicants’ use of the term ‘Kulumbiringin’.  Mr Loizou submitted that Mansfield J’s findings and conclusions in Risk did not apply to Area B.  Therefore, so he submitted, no issue estoppel arose from the decision in Risk.  As I understood his submissions to this point, Mr Quall’s counsel was describing the Danggalaba clan and/or Larrakia/Kulumbiringin case the Quall applicants put in Risk.  However, after a short adjournment, Mr Loizou then submitted that the case described by Mr Quall’s counsel before the Full Court at Risk FC [120]-[132] and summarised at Risk FC [161]-[163], is the case Mr Quall now wished to pursue in this native title application, ie the Top End society case.  He submitted that the Full Court rejected this case saying that it had not been raised before Mansfield J.  He said that Mr Quall had explained in his affidavit that the reason why this Top End society case was not properly raised before Mansfield J was his lack of resources and his inability as an unrepresented party to properly present that case.  Therefore, Mr Loizou submitted, Mansfield J had not determined this Top End society case in Risk and since it had not been determined there, nothing that his Honour decided in Risk could operate as an issue estoppel to prevent him raising this case in relation to Area B.  So, at the completion of his submissions, Mr Loizou put the case on two alternative bases: the Danggalaba clan and/or Larrakia/Kulumbiringin case and the Top End society case.  Finally, Mr Loizou submitted that any summary dismissal of proceedings before a court should be approached with extreme caution.

The Northern Territory’s submissions in reply

70                  In reply, Ms Brownhill submitted that the Full Court had concluded that while Mr Quall was unrepresented he had participated fully in the hearing before Mansfield J and there was nothing to suggest that he was affected by any lack of resources in presenting his case.  Even if he was, Ms Brownhill submitted, there is nothing in Mr Quall’s affidavit to suggest that the situation will be any different in relation to his presentation of the Top End society case in this native title application.  Finally, Ms Brownhill submitted that Mr Quall had clearly put a case before Mansfield J that at sovereignty the traditional Aboriginal society was the Larrakia/Kulumbiringin peoples, later narrowed to the Danggalaba/Larrakia clan, and he should not be permitted, in the interests of justice, to put an entirely different case in relation to Area B, ie the Top End society case identified by his counsel before the Full Court.

The issues that arise IN THIS STRIKE OUT APPLICATION

71                  From the contentions of the parties set out above, the following are the issues I consider have been raised for determination in this strike out application:

1.                  Does the decision in Risk give rise to an issue estoppel to prevent the Quall applicants pursuing this native title application?

Because of the dichotomous approach adopted by Mr Quall’s counsel and the differing issues that arise as a consequence, I consider I need to approach this issue on the basis that the Quall applicants wish, in this native title application, to pursue:

(a)                    a Danggalaba clan or Larrakia/Kulumbiringin case; and/or

(b)                    a Top End society case.

2.                  If no issue estoppel arises in relation to either or both of the cases identified above, would it constitute an abuse of process for the Quall applicants to pursue either, or both, of these cases in this native title application?

3.                  Does the decision in Risk mean that the Quall applicants have no reasonable prospects of success in this native title application?

Again, I consider this issue has to be approached on the two alternative cases set out in 1. above. 

4.                  If an issue estoppel arises, or the abuse of process exists, or this native title application has no reasonable prospects of success, does that warrant this native title application being struck out?

72                  In considering these issues, I will deal first with the principles relating to strike out applications, or the summary dismissal of court proceedings, and then deal with the issues of issue estoppel, abuse of process and no reasonable prospects of success in that order.

Consideration

The principles applicable to strike out applications

73                  The principles that apply to the summary dismissal of court proceedings are well established.  They apply equally to an application such as this to summarily dismiss a native title determination application under s 61 of the NT Act.  They are conveniently summarised in Edward Landers v State of South Australia [2003] FCA 264 at [7], per Mansfield J, as follows:

Whichever power is relied upon on the motion, it is accepted that the principles applicable to consideration of a summary dismissal application should be applied.  The Court should only dismiss the application if the case for its dismissal is very clear:  Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130.  Consequently, the power summarily to dismiss an application should be exercised only where the claim as expressed is untenable, and upon the version of the evidence favourable to the applicant.  The Court should not, upon such an application, generally undertake any weighing of conflicting evidence or of the inferences which might be drawn from such evidence:  Webster v Lampard (1993) 177 CLR 598 at 602-603.

See also: Williams v Grant [2004] FCAFC 178, at [48]-[49], per Lander J, North and Dowsett JJ agreeing.  In Batistatos, in the joint decision of Gleeson CJ, Gummow, Hayne and Crennan JJ, their Honours observed that the statements in General Steel should not be given “canonical force” and they referred to Agar v Hyde (2000) 201 CLR 522 at [57], where it was observed that the various formulae used in General Steel and Dey, was intended to describe “a high degree of certainty about the ultimate outcome”.

74                  It follows that I must be satisfied to a high degree of certainty that because of an issue estoppel, an abuse of process, or no reasonable prospects of success, this native title application is plainly untenable.  In the process, I must take “exceptional caution” to ensure that Mr Quall and the Quall applicants are not deprived of the right to submit a real and genuine controversy for determination, which has not yet been fully and finally determined on its merits.  Furthermore, I should approach this strike out application on the version of any evidence that is favourable to Mr Quall and the Quall applicants.

1.         Does the decision in Risk give rise to an issue estoppel for the Quall applicants?

75                  Before turning to the alternative cases identified in submissions by Mr Quall’s counsel, it is convenient to consider the principles in relation to issue estoppel.  Issue estoppel is a principle that was developed from estoppel per rem judicatam in approximately the middle of the last century.  It is distinguishable from estoppel by res judicata, also known as estoppel by record, or cause of action estoppel which, as the last clearly implies, applies to causes of action.  Issue estoppel applies to matters of law or fact.  It is based upon public policy in the finality of litigation and private justice considerations that a person should not be “twice vexed for one and the same cause”: see Carl-Zeiss-Stiftung v Rayner and Keeler Ltd & Ors (No 2) (‘Carl-Zeiss-Stiftung’) (1966) 2 All ER 536 at 549-550, 564-565 and Spencer Bower and Turner Res judicata 2^nd Ed, at 10-11.

76                  Issue estoppel applies where: (i) the same question or issue has been decided; (ii) by a final judicial decision; (iii) between the parties to that judicial decision or their privies who are the same parties in the proceedings where the estoppel is raised: see Carl-Zeiss-Stiftung at 564, Ramsay v Pigram (1968) 181 CLR 271 at 276 per Barwick CJ and Kuligowski v Metrobus (2004) 220 CLR 363 at [21] and [40].

77                  Applying these principles to the present case, there can be no doubt, in my view, that the second prerequisite for issue estoppel has been met because the decision of Mansfield J in Risk was clearly a final judicial decision. 

78                  As to the third prerequisite for issue estoppel, the parties to this native title application are relevantly the same as the parties in Risk.  I have used the word ‘relevantly’ because I do not consider the addition of the Litchfield Shire Council as a respondent to this native title application is relevant to the question whether issue estoppel applies.  It would be so if the Litchfield Shire Council were attempting to make out an issue estoppel based upon the decision in Risk, but that is not the case.  For the same reason, I do not consider the fact that there were other parties in the consolidated proceedings in Risk who are not parties to this native title application, prevents issue estoppel applying.  In my view, the relevant consideration is whether the parties who are opposed on the issues putatively affected by issue estoppel (or their privies), are common to both sets of proceedings, not whether all the parties are identical in both sets of proceedings.  Here, the same parties who agitated the issues in Risk are seeking to agitate similar issues – I will not foreclose on the first prerequisite (above) at this stage by describing them as the same issues - in this native title application.  Those parties are, of course, Mr Quall as the authorised applicant on behalf of the Quall applicants and the Northern Territory.  It follows, in my view, that the third prerequisite for issue estoppel has been met.  Having reached this conclusion, I do not need to consider the Northern Territory’s submission that the addition of the Litchfield Shire Council as a party to this native title application is overcome by the fact that the decision of Mansfield J in Risk is a determination in rem.

79                  That leaves for consideration the first prerequisite for issue estoppel (above).  In considering that prerequisite, it is necessary to compare the relevant issues that were decided in Risk with the issues raised in this native title application on the alternative cases identified by Mr Quall’s counsel.

80                  I have set out at [41]-[42] above, the critical issues that I consider were decided in Risk.  They can be summarised as follows:

a)                  the Larrakia peoples comprised the Aboriginal society at sovereignty that by the traditional laws and customs of its normative system possessed rights and interests in relation to the lands and waters in the Darwin area, including Area A;

b)                  there has been a substantial interruption in the acknowledgement and observance of the traditional laws and customs of the Larrakia peoples since sovereignty such that native title does not now exist for the lands and waters in Area A; and

c)                  there was not a separate, more confined, Aboriginal society at sovereignty that by its traditional laws and customs had rights and interests in relation to the lands and waters in the Darwin area, comprising the Danggalaba clan.

Mansfield J decided these critical issues in accordance with the principles explained by the High Court in Yorta Yorta, which are clearly delineated in his Honour’s decision and accurately summarised in Ms Brownhill’s submissions (see [55]-[56] above).  I should add that I also agree with Ms Brownhill’s submission (see [58] above), that in this context, the terms ‘Larrakia’ and ‘Kulumbiringin’ both refer to the Larrakia peoples and Larrakia land.

81                  With one addition, I therefore consider that Ms Brownhill has also accurately summarised the critical issues that were determined in Risk and which Mr Quall is estopped from pursuing in this native title application, as follows (see [64] above):

1.                  That the Aboriginal society at sovereignty, that by the traditional laws and customs of its normative system, possessed rights and interests in relation to the lands and waters in the Darwin area, inclusive of Area A, was some Aboriginal society other than the society of the Larrakia/Kulumbiringin peoples identified by Mansfield J in Risk; and

2.                  That there has been no substantial interruption in the acknowledgment and observance of the laws and customs of that society of Larrakia/Kulumbiringin peoples since sovereignty.

The addition I have mentioned above is that I also consider Mr Quall is estopped from claiming in this native title application that: there was a separate, more confined, traditional Aboriginal society at sovereignty comprising the Danggalaba clan that by the traditional laws and customs of its normative system, possessed rights and interests in relation to the lands and waters in the Darwin area. 

1(a) issue estoppel and the Danggalaba Clan case or Larrakia/Kulumbiringin case

82                  Turning then to the first of the alternative cases identified by Mr Quall’s counsel, ie the Danggalaba clan case and/or the Larrakia/Kulumbiringin case, for the reasons set out below, I consider the issues raised in this native title application in relation to both of these cases are identical to those that were determined in Risk. 

83                  First, the form of this native title application is identical to the form in which it was as part of the consolidated proceedings in Risk.  It is also in the same form as the other eight Kulumbiringin type native title applications that were pursued by Mr Quall in Risk.  No amendments were made to this native title application while it was a part of the consolidated proceedings in Risk and no amendments have been made to it since.  The critical issues raised in this native title application are, therefore, exactly the same as those raised in Risk.  Those issues are recorded at [37] above.  

84                  The Full Court provided an apt summary of the cases Mr Quall put to Mansfield J in Risk: see Risk FC at [168].  That summary is set out at [46] above, but it bears repeating as follows:

[168]    It is clear from the outset that the cases being put by the Quall appellants in          their various applications were based upon traditional laws and customs that    were the laws and customs specific to either the Kulumbiringin (or the           Larrakia society at sovereignty) or the Danggalaba clan.  A fair reading of the             applications would not reasonably lead the audience to which they were   addressed to any other conclusion.  The Schedule F description of the    traditional laws and customs in the illustrative application in the Second        Supplementary Appeal Book makes no reference to any wider laws and   customs or to any broader society.  …

85                  It follows, that the critical questions raised by the competing native title applications of the Quall applicants and the Risk applicants in Risk and which are also raised in identical form by this native title application are: what was the Aboriginal society at sovereignty, that by the traditional laws and customs of its normative system, possessed rights and interests in relation to the lands and waters in the Darwin area (for ease of reference, I will refer to this society henceforth in these reasons as ‘the relevant Aboriginal society’) – was it the Larrakia society described by the Risk applicants, or the Danggalaba clan and/or Larrakia/Kulumbiringin as described by the Quall applicants?  

86                  Finally, in deciding whether the same issues are raised for determination in this native title application, that were raised and determined in Risk, I consider it is also significant that the lands the subject to this native title application and all the other Quall native title applications in Risk, have been described in the same, or similar, form throughout, ie variously, as the Larrakia or Kulumbiringin lands or country (see [17(b)] above - for ease of reference, I will refer to these lands henceforth in these reasons as ‘Larrakia lands’).  This was so throughout all the various amendments to this native title application.  It was also so before and after the splitting of the various native title applications into those that applied to Areas A and B.  In that respect, I do not consider that the splitting of the native title applications into two areas changed the character of the lands that were the subject of this native title application or, indeed, any of the other native title applications involved.  That splitting was done to meet the convenience of the parties.  It was not done to draw any distinction between the lands in Area A or B in relation to whether they were Larrakia lands.  Thus, all of the lands in both Areas A and B still remained Larrakia lands in relation to which the Quall applicants asserted they held native title rights.  Finally, it should be noted, that Mr Quall (or his counsel) referred to these lands as Larrakia lands or country repeatedly in Risk and Risk FC: see Risk FC at [137], [140] and [161]-[162].  For these reasons, I do not accept Mr Loizou’s submission that the findings of Mansfield J in Risk can be distinguished because they only applied to Area A. 

87                  In my view, therefore, the issues raised in this native title application are identical to the issues that were raised and determined by Mansfield J in Risk as summarised above (at [80]-[81]).  In other words, the questions I have identified at [85] above as having been raised by this native title application are answered in my summary of the findings of Mansfield J in Risk at [80] above.

88                  Before leaving this issue, I should add that I do not consider that Mr Quall’s change of position from the Larrakia/Kulumbiringin case back to the Danggalaba clan case during the final stages of the hearing in Risk affects this conclusion.  That is so because Mansfield J ultimately found against the Quall applicants on both these cases.  On the Larrakia/Kulumbiringin case, Mansfield J found that the society of the Larrakia peoples (which included the Quall applicants’ Larrakia/Kulumbiringin case: see Risk at [96]), was the relevant Aboriginal society had interests in Larrakia lands.  In making this finding, his Honour did not distinguish between the cases put by the Risk applicants and the Quall applicants, so both groups can claim some measure of success, even though this joint success runs contrary to one of the Quall applicants’ primary claims that the Risk applicants had lost their culture and was simply a language group.  However, his Honour also found that since sovereignty, there had been a substantial interruption in the acknowledgement and observance of the traditional laws and customs of the Larrakia, as explained by the High Court in Yorta Yorta, such that no native title presently existed in relation to those lands and waters.  This latter finding simultaneously disposed of both the Risk applicants’ and the Quall applicants’ Larrakia/Kulumbiringin cases.  Furthermore, Mansfield J found that the Quall applicants had failed to establish the Danggalaba clan case, by finding that there was not a separate, more confined, Aboriginal society at sovereignty, comprising of the Danggalaba clan that by its traditional laws and customs possessed rights and interests in relation to the lands and waters in the Darwin area.

89                  I therefore conclude that all the prerequisites for an issue estoppel are present in relation to the first of the alternative cases identified by Mr Quall’s counsel and together they dictate that the decision in Risk gave rise to an issue estoppel to prevent the Quall applicants raising for determination in this native title application, the Danggalaba clan case and/or the Larrakia/Kulumbiringin case.  Having reached this conclusion, it is not necessary for me to consider the other issues that have been raised in relation to the alternative cases, ie issues 2 and 3 set out in [71] above.

1 (b)     Issue estoppel and the Top End society case

90                  That brings me to the second of the alternative cases identified by Mr Quall’s counsel, ie the Top End society case.  At the outset, I should record that despite it being outlined by Mr Quall’s then counsel in submissions before the Full Court, it remains the fact that the Top End society case, as so described, is not mentioned anywhere in the various iterations of this native title application.  Mr Quall’s counsel’s answer to a related concern I had with the issues raised in this native title application, when I raised that concern with him at one of the earlier stages of this strike out application, was to propose that I should allow the Quall applicants an opportunity to properly state the case they wished to put in this native title application and then consider whether it should be struck out.  To my mind, there were some obvious problems with that proposal, not the least being delay.  These proceedings have now been on foot for about 12 years; the Full Court hearing when this Top End society case was first identified by Mr Quall’s then counsel, occurred some two years ago; and this strike out application had been on foot for about three months when this problem first arose.  Yet, in all that time, no attempt has been made by Mr Quall, or his legal advisors, to include the Top End society case in this native title application. 

91                  Nonetheless, if Mr Quall were to be given this opportunity to properly describe the Top End society case in this native title application, it is not difficult to predict that it will be described in much the same terms as it was by his then counsel before the Full Court: see [92] below.  If so, given that the summary of the Top End society case before the Full Court was quite detailed, there would appear to be little to be gained by yet further delay in these proceedings while Mr Quall’s legal advisers include that description in this native title application.  I will therefore proceed to consider that case as if it were included in that form in this native title application.

92                  The Top End society case was described by Mr Quall’s then counsel to the Full Court (see Risk FC at [120]-[132]), and summarised by the Full Court, (see Risk FC at [161]-[162]), as follows (emphasis added):

[161]    As to the claimed existence of a wider Top End society at sovereignty, it is           submitted the evidence established that (a) the land around the settlement of     Palmerston on Port Darwin was occupied by the Larrakia and recognised as   Larrakia country;  (b) there were other “tribes” occupying neighbouring land,             in the areas delineated on the Tindale map;  (c) there were dreaming tracks          that link the land occupied by the different “tribes” in the region;  (d) the   creation myths of the Larrakia (and other tribes) accounted for the          relationship to the land of their own tribe and that of others in the region;  (e)        the “tribes” in the region visited each other and participated in shared            ceremonies, including ceremonies relating to initiation of young men and     death rituals;  (f) some of the customs and rituals involved the use of items    such as human hair and fat from dead human bodies that were shared or traded between tribes;  (g) these tribes intermarried with each other and      observed rules in relation to the tribal affiliation of the children of such inter-    marriages;  (h) there were rules which regulated the response of one tribe to a     murder of one of their members by a member of another tribe (and also       regulated the response to that response);  (i) the tribes knew of and   acknowledged each others’ land boundaries;  (j) members of one tribe were             prohibited from entering the land belonging to another tribe or from           removing anything from that land without the permission of the owners;  (k)    in ordinary circumstances members of the tribe had the right to roam over     and use the resources of the whole of the land belonging to the tribe without         asking permission;  (l) within the tribal lands sub-groups or clans owned their      own portions and members of one group were not permitted to enter the     camp of another group without a formal invitation;  (m) there was a system whereby messengers bearing recognised objects could be sent out to the territory of other tribes in safety with messages/invitations.

[162]    Taken together, it is said, this evidence unequivocally establishes the         existence of a wider “society” of Top End Aboriginal tribes with traditional     laws and customs regulating their interactions, their shared religious and       ceremonial life, and, crucially for present purposes, their rights and interests          in land.  It also establishes that that society was the source of the           normative system which gave rise to the right of the Larrakia people to     ownership of Larrakia land.  For reasons we give below, we have not      considered it necessary to enter upon the evidence supporting the above   assertion.

93                  As can be seen from the Full Court’s summary, this case is founded on the proposition that the relevant traditional Aboriginal society possessed of the rights and interests in Larrakia lands was a wider society “of Top End Aboriginal tribes”, described by the Full Court as the “Top End society” case: (see Risk FC at [116]). 

94                  In summary, the Full Court rejected this case for the following reasons:

(a)                no such case was put to Mansfield J: Risk FC at [176];

(b)               instead the case that Mr Quall ultimately put to Mansfield J was based on the laws and customs of the Danggalaba Larrakia clan, it having fallen away from a case based on the laws and customs of the Larrakia/Kulumbiringin peoples: Risk FC at [176]; and

(c)                Mansfield J properly considered, and rightly rejected, the case that was ultimately put to him on four bases, as follows (Risk FC at [177]):

(i)                  the current laws and customs of the Danggalaba clan were not “traditional” in the sense required by s 223(1)(a) of the NT Act: Risk at [796];

(ii)                there was uncertainty or inconsistency about the composition of the Danggalaba clan and the rules governing its structure: Risk at [797]-[801];

(iii)               there was no satisfactory foundation for finding that the Quall [applicants] practice and enjoy certain rights and interests which arise under laws and customs which only they have inherited from, or have been passed on to them by, their predecessors back to sovereignty: Risk at [797]-[798]; and

(iv)              there was no satisfactory foundation for concluding that the Danggalaba laws and customs reflected or were derived from the normative system of the Aboriginal society which existed at sovereignty: Risk at [798].

95                  It is obvious from these conclusions that the Full Court would not have been willing to allow Mr Quall to raise this Top End society case for the first time on appeal.  Given the difficulties inherent in that approach, that probably explains why Mr Quall’s counsel argued instead before the Full Court that the case had already been put to Mansfield J and his Honour had failed to consider it.  As appears above, Mr Quall’s counsel failed in that attempt.  Not daunted by that failure, Mr Quall now wishes to adopt this Top End society case, as the Quall applicants’ case in this native title application. 

96                  Mr Loizou submitted that the Top End society case was not determined by Mansfield J in Risk (see [69] above).  At the superficial level, that is clearly so.  However, I consider that submission states the matter at too high a level of generality.  In any native title determination application under s 61 of the NT Act, such as this, the ultimate object or goal is to obtain a determination of native title in favour of the claimant group.  To do that, the claimant group, in this case the Quall applicants, would have to persuade the Court that the Top End society meets the various components of the definition of native title in s 223 of the NT Act, as explained by the High Court in Yorta Yorta.  Stated in this way, it can be seen that the object or goal the Quall applicants hope to achieve by pursuing the Top End society case in this native title application, is to answer the question identified in [85] above - what was the relevant Aboriginal society at sovereignty that possessed rights and interests in Larrakia lands in Area B – with the answer: the Top End society. 

97                  Properly analysed in this way, what the Quall applicants are seeking to do by raising the Top End society case is to proffer a further alternative society to the three societies that were proffered, variously, by the Risk applicants and the Quall applicants in Risk (see [86] above).  It follows, in my view, that while the Top End society case is self-evidently different in itself, and the components of that society were not considered or determined in Risk, the critical issue raised by that case is the same as that raised and determined in Risk. 

98                  I would add that, as with the first of the alternative cases identified by Mr Quall’s counsel, ie the Danggalaba clan case (see [86] above), I do not consider it matters that this native title application now relates to Area B.  This is so because all of the lands in both Areas A and B are clearly Larrakia lands and the relevant Aboriginal society possessing rights and interests in those lands will be the same for both. 

99                  For these reasons, I consider that the first prerequisite for issue estoppel is met in relation to the second of the alternative cases identified by Mr Quall’s counsel, ie the Top End society case.  That being so, I conclude that all of the prerequisites for an issue estoppel are present in relation to that second alternative case and together they dictate that the decision in Risk gave rise to an issue estoppel to prevent the Quall applicants pursuing the Top End society case in this native title application.  However, in case I am wrong in this conclusion, particularly as to the first prerequisite for issue estoppel, I consider it is appropriate for me to consider the second issue identified above (at [71]), ie whether it would constitute an abuse of process for the Quall applicants to now pursue the Top End society case in this native title application.

2.         Does pursuing the Top End society case constitute an abuse of process?

100               First, it is convenient to identify the relevant principles on abuse of process.  The concept of abuse of process is founded on the same underlying concerns as res judicata and issue estoppel, viz the concern a person should not be troubled twice for the same cause and public policy concerns in the finality of litigation: see Spalla at [64] and [67] per French J.  However, the concept is not limited by reference to those doctrines.  Thus, even though the earlier proceedings did not give rise to a res judicata or an issue estoppel, eg because the parties or their privies to the two sets of proceedings were not the same, an attempt to re-litigate an issue that has already been disposed of in other proceedings, may constitute an abuse of process: see Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 (‘Sea Culture’) at 279 per French J, Walton v Gardiner (1993) 177 CLR 378 (‘Walton’) at 393-394 per Mason CJ, Deane and Dawson JJ, Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at [25] per von Doussa, Branson and Sundberg JJ, Spalla at [66]-[67]per French J and Brock v Minister for Home Affairs [2008] FCAFC 165 at [74] per Lindgren and Tracey JJ. 

101               The Court is empowered under O 20 r 4 to stay or dismiss a proceeding where it is considered to be an abuse of process.  However, as with the summary dismissal of court proceedings in general, this power is to be exercised very sparingly and only in exceptional circumstances: see Sea Culture at 279 per French J and Djaigween v Douglas (1994) 48 FCR 535 at 545 per Carr J.  The circumstances in which abuse of process may arise are “extremely varied” and are not limited to “fixed categories”: see Rogers v R (1994) 181 CLR 251 at 255 per Mason CJ, Sea Culture at 279 per French J, Spalla at [63] and Batistatos at [15] and [49].  Thus, the concept of abuse of process may extend to prevent the waste of judicial resources and include, as a consideration, the necessity of maintaining confidence in, and respect for, the authority of the courts: see Spalla at [69] per French J.  So, too, an attempt to litigate an issue that ought reasonably to have been litigated in earlier proceedings: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Spalla at [59].  Finally, the concept may apply to allow proceedings to be struck out that can be clearly seen to be foredoomed to fail: see Walton at 393 per Mason CJ. 

102               In State Bank of NSW v Stenhouse (1997) Australian Torts Reports 81-423 at 64,098, Giles CJ emphasised the importance of the particular circumstances that apply in determining whether it is an abuse of process to re-litigate an issue in subsequent proceedings.  His Honour set out a non-exhaustive list of matters relevant to the determination whether an abuse of process was occurring.  This non-exhaustive list of matters was adopted by French J in Spalla at [70].  The non-exhaustive list is as follows:

(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.

103               Before considering these matters, as they apply to this case, I should first restate the critical issue I consider the Quall applicants are seeking to raise in this native title application by pursuing the Top End society case.  As stated above at [96], in my view, that issue is whether the Top End society was the relevant Aboriginal society at sovereignty, that possessed rights and interests in Larrakia lands in Area B.  As noted above (at [96]), it follows that the Quall applicants wish to add a further alternative society to the three Aboriginal societies that were proffered in Risk.  I will now turn to consider that issue by reference to the non-exhaustive list of matters set out above. 

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

104               This first matter requires a consideration of what constitutes an ultimate issue.  In my view, an ultimate issue is one that forms the ingredients of the cause of action in a proceeding, or the “title to the right established”.  It encapsulates the actual ground upon which the existence of any right in the proceedings was negatived, or any point which was necessary to decide and was actually decided as a part of the ground work of the decision itself: see Blair v Curran (1930) 62 CLR 464 (‘Blair v Curran’) at 532-533 per Dixon J and Kuligowski at [60]-[62].

105               Thus, the question raised by this first matter is whether the issue the Quall applicants are seeking to raise by pursuing the Top End society case (described above), was an important issue in Risk and one that was part of the ground work upon which Mansfield J concluded that native title did not exist in area A of the Larrakia lands.  In my view, that is clearly so. 

106               In Risk, Mansfield J ultimately held that native title did not exist for the Larrakia lands and waters in Area A.  That ultimate conclusion depended upon his Honour’s application of the definition of native title in s 233 of the NT Act, as explained by the High Court in Yorta Yorta, to the facts as disclosed by the evidence before him.  After undertaking that process, Mansfield J made two critical findings which I have already set out above (see [41]-[42] and summarised by [80]).  Each of these findings was, in my view, a crucial part of the ground work for the ultimate conclusion made by Mansfield J that native title did not exist in Area A.  Therefore, in my view, each of these findings was an ultimate issue as defined by Dixon J in Blair v Curran.  Furthermore, I consider that each of these findings was of paramount importance in Risk because they were fundamental to that ultimate conclusion. 

 (b)       The opportunity available and taken to fully litigate the issue in the earlier       proceedings

107               There can be little doubt, in my view, that Mr Quall and the Quall applicants had every opportunity to fully litigate the issue as to what was the relevant Aboriginal society at sovereignty possessing rights and interests in the Larrakia lands in Area A.  The Quall applicants became the second applicants in Risk and therefore were a party to the consolidated proceedings in Risk.  Indeed, one of the main purposes of s 67 of the NT Act is to require that all claims over the same area are dealt with together in the same proceedings.  Having become a party, the nature and extent of Mr Quall’s participation in the hearing in Risk was summarised by the Full Court as follows (Risk FC at [119]):

It is important to emphasise that Mr Quall was not represented at the hearing before his Honour.  Nonetheless, as his Honour indicated ([34] and [798]), he gave evidence (albeit of “relatively short compass”); he tendered some documents, though these did not include an anthropological report prepared for the proceedings; he cross-examined witnesses; and he made submissions.  His Honour noted (at [797]) that his evidence was, in effect, the only evidence directly supporting his claim.

108               After the decision in Risk, the Quall applicants took the opportunity to appeal that decision to the Full Court (see [44]-[48] above) and then took the opportunity to seek special leave to appeal to the High Court (see [49]-[50] above).  Mr Quall and the Quall applicants have therefore taken the opportunity to pursue their case/s at every level of the federal courts system.

109               However, notwithstanding these opportunities, Mr Quall has claimed before me that his ability to present his case in Risk was hampered because he was not legally represented.  As the procedural history to this native title claim (above) demonstrates, Mr Quall has complained about this situation often in the past and he has levelled criticisms at the Northern Land Council for not providing his group of applicants with the funding necessary to obtain legal representation.  In his affidavit affirmed on 6 May 2008, Mr Quall repeated those complaints saying (at paragraph 4): “I was restricted in presenting evidence and legal argument due to a lack of resources.  I was unable to obtain financial assistance from the Northern Land Council …”.  He went on to claim that his ability to present his case in Risk was “significantly affected”, that he was “not able to adequately present evidence” and that if he had been able to, he “would have presented a stronger argument”. 

110               Notwithstanding these complaints, I consider the record shows that Mr Quall, and the Quall applicants, were able to fully litigate the issue as to what was relevant Aboriginal society at sovereignty possessing rights and interests in Larrakia lands.  The most obvious indication of this is that both the Quall applicants and the Risk applicants were jointly successful in establishing that the relevant Aboriginal society at sovereignty possessing those rights and interests was the Larrakia peoples (see [80] and [88] above).  Furthermore, the aspect upon which this native title application failed in the consolidated proceedings in Risk, ie a substantial interruption in the continuous acknowledgement and observance of the laws and customs of the Larrakia peoples since sovereignty, was a joint failure with the Risk and Quall applicants (see [80] and [88] above).  In this respect, I consider it is significant that the Risk applicants were legally represented and assisted by the NLC throughout, so this joint failure occurred notwithstanding that the Risk applicants were legally represented. 

111               The other area of failure for the Quall applicants was the rejection by Mansfield J of their claim that the Larrakia/Kulumbiringin society did not include the Risk applicants and was limited to the Danggalaba clan (originally the Larrakia/Kulumbiringin case), comprised of the Quall applicants.  In my view, this failure on the part of the Quall applicants was secondary to the joint success and joint failure described above.  Moreover, it is debatable, in my view, whether the Quall applicants’ failure to establish the Danggalaba clan case was due to a lack of legal representation, or due to a fundamental defect in that case. 

112               As to the latter, I consider it is significant that the Danggalaba clan case put forward by Mr Quall and the Quall applicants had already failed in the Kenbi Land Claim, albeit in a different statutory regime (see [12]-[14] above).  Furthermore, one of the native title applications lodged by Mr Quall and the Quall applicants, based upon the Danggalaba clan, had already been dismissed in Quall because O’Loughlin J found that Mr Quall could not adequately identify what the Danggalaba clan was (see [19]-[30] above).  Finally, Mr Quall himself changed from the Danggalaba clan case to the Larrakia/Kulumbiringin case, in October 2001, and then changed back to the Danggalaba clan case, during final submissions in Risk in 2004, after four witnesses he called in support of the Larrakia/Kulumbiringin case, failed to give evidence in support of that case (see [38] above).  The description of this event by Mansfield J in Risk at [797] (see [42] above) and by the Full Court in Risk FC at [176] (see [47] above), suggests that Mr Quall, and perhaps his sister, ended up being the only ones supporting the Larrakia/Kulumbiringin case, and that all the other members of the Larrakia/Kulumbiringin, including the witnesses Mr Quall had called, supported the Risk applicants about the identity of the relevant Aboriginal society at sovereignty possessing rights and interests in Larrakia land. 

113               Next, I consider it is significant that despite his lack of legal representation during the course of these proceedings, Mr Quall was able to produce a detailed description of his Danggalaba clan case in this native title application, ie the May 2000 amendments (see [6]-[10] and [14]-[17] above).  He was then able to produce a detailed description of his Larrakia/Kulumbiringin case in this native title application, at the time of the October 2001 amendments (see [33]-[37] above).  In both these versions, Attachment S contained detailed references to the writings of historians and anthropologists.  In my view, these documents demonstrate that Mr Quall and the Quall applicants were able, despite their lack of legal representation, to outline what their case was and to make considered decisions as to what form their case should take.  Against this demonstrated capacity, it is significant, in my view, that the Top End society case was not ever raised before Mansfield J, as the Full Court found in Risk FC (see [46] above), and has not ever been raised in this native title application by way of amendment.

114               Finally, on this aspect, given that Mr Quall and the Quall applicants were able to outline these two alternative cases in Risk, and given that no explanation has been provided in Mr Quall’s affidavit or elsewhere as to why the Top End society case was not put to Mansfield J in Risk, it is open to be inferred that Mr Quall and the Quall applicants made a deliberate decision not to pursue that case before Mansfield J.  This inference may be further supported by the fact that the statements in Mr Quall’s affidavit of 6 May 2008, all appear to be directed to presenting a stronger argument in relation to the Danggalaba clan or Larrakia/Kulumbiringin cases.  However, I am mindful of the requirement in a strike out application such as this to approach it on the version of the evidence most favourable to Mr Quall and the Quall applicants.  Nonetheless, that becomes quite difficult when I am confronted with a lack of evidence on an important question.  In this respect, it is worth stating that the detailed knowledge of the components of a successful native title determination, particularly the details of the traditional laws and customs of the relevant Aboriginal society at sovereignty, all rests with the Aboriginal people concerned.  In this case, the detailed knowledge about the components of the Top End society rests with the Quall applicants.  These are not matters upon which anthropologists can give primary evidence.  What they can do is to express opinions based upon the primary evidence of the Aboriginal people concerned.  Here, Mr Quall and the Quall applicants have not produced any evidence of the details of the Top End society.  They have not even produced the most basic level of evidence, eg an affidavit by Mr Quall, or another member of the Quall applicant group, stating that the matters summarised by the Full Court (see Risk FC at [161]-[162] at [92] above), about the Top End society, correctly and accurately described it. 

 (c)       The terms and finality of the finding as to the issue in the earlier proceedings

115               As I have already observed above, I consider the findings made by Mansfield J in Risk are in clear terms and they deal directly with the various components of the definition of native title in s 233 of the NT Act, as explained by the High Court in Yorta Yorta.  Those findings followed an exhaustive examination of a large body of evidence and they resulted in the final orders made by Mansfield J to the effect that native title does not exist for Larrakia lands in Area A (see [43] above).  In my view, the findings and orders of Mansfield J are final, in the sense that they foreclose on any other Aboriginal society being able to establish that the laws and customs under its normative system gave rise to rights and interests in Larrakia lands in Area A.  Indeed, they constitute a judgment in rem that no native title exists in those lands (see the cases set out in [63] above).  While the decision in Risk does not have the same status in relation to the lands in Area B, I do not consider that detracts from the final effect of the findings on the ultimate issues upon which that decision is founded.  Specifically, that the Larrakia peoples were the relevant Aboriginal society at sovereignty that possessed rights and interests in Larrakia lands.  I consider this constitutes a final finding as to the relevant Aboriginal society that possessed rights and interests in those lands whether they fell within Area A or B. 

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

116               I have already concluded above (see [97]), that the critical issue raised by the Top End society case is the same as that that was raised and determined in Risk, ie what was the relevant Aboriginal society at sovereignty that possessed rights and interests in Larrakia lands.  I have decided to consider whether it would be an abuse of process to pursue the Top End society case in this native title application on the basis that I may be wrong in that conclusion.  However, if I am wrong about the two issues being the same, I consider that the two issues are so similar that whilst they may not support an issue estoppel, they are, in my view, clearly sufficiently similar for the purposes of abuse of process.

 (e)       Any plea of fresh evidence including the nature and significance of the evidence           and reason why it was not part of the earlier proceedings

117               There is no plea of fresh evidence put by the Quall applicants in this matter.  Instead, Mr Quall has complained in his affidavit of 6 May 2008, that because he was not legally represented, he was not able to call witnesses and present his case properly.  I have already dealt with some aspects of this issue in [114] above and I will not repeat those observations here.  However, I have not dealt with this complaint.  Specifically, Mr Quall has complained that there were four witnesses that he said he wished to call to give evidence before Mansfield J and he was not able to.  However, it emerged from the affidavit of Ms Chong-Fong that two of these four witnesses sat beside Mr Quall during parts of the hearing in Risk before Mansfield J.  I consider this evidence from Ms Chong-Fong required an explanation from Mr Quall as to why he did not call at least these two witnesses in Risk.  As with the evidence about the details of the Top End society, this evidence is held by Mr Quall alone.  No such explanation was forthcoming.  Furthermore, there is no indication in Mr Quall’s affidavit as to what evidence these four witnesses could give.  It is therefore impossible to assess whether or not their evidence would have had any impact on the outcome in Risk and/or go to establish the Top End society case.  As well, as noted above (see [114]), Mr Quall has not given any explanation in his affidavit as to why the Top End society case was not pursued in Risk.  As I have also noted above (at [114]), it becomes extremely difficult, if not impossible, to approach this strike out application on the version of the evidence most favourable to Mr Quall, when he has not put the necessary evidence before me.  So, even if I approach the evidence in that way, I am still left with significant gaps in the evidence that tell against Mr Quall and the Quall applicants.

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

118               I consider that it would be contrary to both the finality of litigation principle and promoting public confidence in the administration of justice, if Mr Quall and the Quall applicants were to be allowed to pursue this Top End society case in this native title application.  In reaching this view in relation to the finality of litigation principle, I take into account the fact that Mansfield J conducted a lengthy hearing in Risk, including receiving detailed submissions and evidence from numerous witnesses, including Mr Quall himself.  That whole process took many years and would have cost many millions of dollars.  After the decision of Justice Mansfield was delivered, Mr Quall appealed to the Full Court.  It conducted a thorough review of all the materials before Mansfield J and concluded that Mr Quall had not raised the Top End society case before Mansfield J and had not established either his Larrakia/Kulumbiringin case, or the narrowed down version of the Danggalaba clan case.  Mr Quall then unsuccessfully sought special leave to appeal to the High Court.  Thus far, Mr Quall has therefore used every level of the federal courts system to pursue his case.  At some point, there must be an end to this litigation and I consider it has now been reached.

119               In reaching this view in relation to the promotion of public confidence in the administration of justice, I take into account the just and efficient allocation of the Court’s resources.  In that respect, I am mindful of the fact that there are many other native title applicant groups waiting in the Court’s native title list to have their native title determination applications determined.  As at 30 September 2008, there were 527 native title determination applications outstanding nationally, 160 of those in the Northern Territory Registry of the Court.  I fully appreciate that there are many reasons why this situation exists.  However, I consider that it is in the interest of the administration of justice, so far as this Court has any control over the matter, that I ensure that the Court’s resources are devoted to the resolution of real and genuine native title determination applications that have not yet been provided with a determination on their merits.  Finally, I consider that it would not be in the interests of promoting public confidence in the administration of justice to create a situation where this Court could make conflicting determinations as to what the relevant Aboriginal society at sovereignty was for Larrakia lands, between the Larrakia peoples as found in Risk and the Top End society as now sought to be proffered by the Quall applicants in this native title application.

 (g)       An overall balancing of justice to the alleged abuse or against the matters          supportive of abuse of process

120               As between the parties to this strike out application, I consider that there are two principles to be weighed up in this balancing exercise.  From the perspective of the Quall applicants, the principle is the well established right of any person to present to this Court a real and genuine controversy that has not been determined on its merits: see Batistatos at [158]-[161] per Kirby J, noting what the joint decision said about this right not being “at large” at [65].  On the other hand, from the perspective of the Northern Territory, the principle is that a person should not be twice vexed for the same cause: see Carl-Zeiss-Stiftung at 549-550 and 564-565.  I can see no reason, in principle, why the latter does not apply equally to a party that is a body politic like the Northern Territory.

121               As to the first of these principles, the Quall applicants have already put forward as a real and genuine controversy the question whether the Danggalaba clan and/or the Larrakia/Kulumbiringin was the relevant Aboriginal society at sovereignty that by the traditional laws and customs of its normative system possessed rights and interests in relation to the Larrakia lands and waters in Area A.  That issue has been determined on the merits against them.  They now say they wish to put forward as a real and genuine controversy the question whether the Top End society was the Aboriginal society at sovereignty that by the traditional laws and customs of its normative system possessed rights and interests in relation to the Larrakia lands and waters in Area B.  The Northern Territory says that this is vexing it twice for the same cause.

122               On this matter, I consider that the balance tips in favour of the Northern Territory for the following reasons:

a)                  there is nothing to show that there is a real and genuine controversy in relation to the Top End society case being the relevant Aboriginal society at sovereignty possessing rights and interests in Larrakia lands;

b)                  to the contrary, there is much to suggest that the Top End society case does not raise a real and genuine controversy of the kind suggested, not the least being the decision of Mansfield J in Risk that the relevant Aboriginal society at sovereignty possessing rights and interests in Larrakia lands was the Larrakia peoples (see also my observations at [112] above); and

c)                  the Top End society case seeks to raise the same, or at least, a very similar, issue to that raised by the Quall applicants in Risk, which issue the Northern Territory has already successfully met in Risk.

Conclusion on abuse of process in relation to the Top End society case

123               For the reasons set out above, I conclude that it would constitute an abuse of process if the Quall applicants were to pursue the Top End society case in this native title application.  Moreover, I am satisfied that is so to the high degree of certainty required of me.  In reaching this conclusion, I have had regard to all the matters which I have set out in detail above, including the following:

a)                  The issue as to what was the relevant Aboriginal society at sovereignty possessing rights and interests in Larrakia lands, was one of the ultimate issues in Risk and an issue of paramount importance in that case;

b)                  the Quall applicants had an ample opportunity, of which they availed themselves, to fully litigate that issue in Risk;

c)                  the findings of Mansfield J on that issue in Risk were clear, directly apposite and final;

d)                  the critical issue raised by the Top End society case is (at least) very similar to the critical issue that was raised and determined in Risk;

e)                  it would be contrary to the public policy concerns for the finality of litigation and in maintaining public confidence in the administration of justice, to allow the Quall applicants to pursue the Top End society case in this native title application; and

f)                    the balance between the principle of providing free access to the courts and the principle of not vexing a person twice for the same cause, tips in favour of the latter.

124               Having reached this conclusion, it is not necessary for me to consider the third issue set out in [71] above in relation to the Top End Society case.

Conclusion

125               I appreciate the extreme caution, or high degree of certainty, that the High Court has said should be applied when deciding whether to summarily dismiss an application such as this.  I also take into account that at various times during the long history of these proceedings Mr Quall has not been legally represented.  Notwithstanding these matters, I consider that this is one of those exceptional cases where this Court should intervene to summarily dismiss this native title application.

126               In summary, for the reasons I have expressed above, I am satisfied to a high degree or certainty that:

·                    The decision in Risk gives rise to an issue estoppel to prevent the Quall applicants pursuing the Danggalaba clan case, the Larrakia/Kulumbiringin case, or the Top End society case in this native title application; and

·                    It would be an abuse of process for the Quall applicants to now pursue the Top End society case in this native title application.

127               I therefore propose to order that this native title application be dismissed.

Associate:

Dated:         19 January 2009