FEDERAL COURT OF AUSTRALIA

Ashwin on behalf of the Wutha People v State of Western Australia (No 2) [2010] FCA 1472

THE COURT ORDERS THAT:

1.    The respondent’s notice of motion dated 13 May 2010 is 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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    By this application, the State of Western Australia seeks orders striking out or dismissing the native title determination application (WAD 6064 of 1998) made by the applicant on behalf of the Wutha People. The State’s application is brought pursuant to s 84C of the Native Title Act 1993 (Cth) and also pursuant to O 20 r 2(1) of the Federal Court Rules. The State contended that the Wutha native title determination application proceeding should be struck out or dismissed on the grounds that the application is not authorised in accordance with the provisions of s 61 of the Native Title Act, and was bound to fail.

2    The State contended that the Wutha claim in this proceeding is bound to fail because the findings and order made by Lindgren J in the case of Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) (2007) 238 ALR 1 (Wongatha) dismissing the Wutha claim insofar as it related to overlap land, gave rise to an issue estoppel. The Wongatha case dealt with the native title determination application brought on behalf of the Wongatha People. The question of the authorisation of the Wutha claim arose for determination before Lindgren J in Wongatha because part of the area  overed by the Wutha claim overlapped part of the area claimed by the Wongatha People. In the course of determining the Wongatha native title claim, Lindgren J determined that, in respect of the area of land comprising the overlap between the Wutha claim and the Wongatha claim, the Wutha native title determination application was not authorised in accordance with the Native Title Act. Lindgren J went on to make the following order in respect of the Wutha claim:

[T]he application be dismissed to the extent that it relates to any land or waters that are also the subject of proceeding WAD 6005 of 98 (Harrington-Smith & Ors v State of Western Australia & Ors).

3    This is not the first interlocutory application brought in this proceeding which is based on the findings and order made by Lindgren J in Wongatha in respect of the overlap land in the Wutha claim.

4    On 11 March 2010, in Ashwin on behalf of the Wutha People v State of Western Australia [2010] FCA 206 (Ashwin No 1), I delivered judgment in respect of an application made by the Yugunga–Nya respondents. By that application, the Yugunga–Nya respondents sought relief under s 84D of the Native Title Act requiring that the persons comprising the applicant in the Wutha claim, file evidence showing that they were authorised to bring the native title determination application on behalf of the Wutha People.

5    The State appeared at the hearing of the Yugunga–Nya respondents’ notice of motion for relief under s 84D of the Native Title Act, and made submissions as to issue estoppel along the lines that it has made in support of this application for summary dismissal. However, on that occasion, the State did not have an application before the Court seeking to dismiss the Wutha claim, whether on the grounds relating to issue estoppel arising from Wongatha, or at all. I did not make any determination in respect of the State’s issue estoppel argument.

6    On 11 March 2010, I made orders on the Yugunga–Nya respondents’ motion, that the persons comprising the applicant in the Wutha claim, file and serve affidavits demonstrating that the Wutha native title determination application has been authorised in accordance with the terms of the Native Title Act.

7    On 13 May 2010, the State filed its notice of motion to strike out or dismiss the Wutha claim in this proceeding on the grounds that it was not authorised in accordance with the provisions of the Native Title Act. During argument, the Yugunga–Nya respondents observed that it may have been more logical if the State’s summary dismissal application had been made prior to the Yugunga–Nya respondents’ s 84D application. I agree. However, the Native Title Act provides that an application under s 84C(1) may be brought at any time and must be determined forthwith. Further, if the State is correct in its contention, then the whole of this proceeding would be dismissed, and the orders that I made in Ashwin No 1 would be futile.

8    In support of its application, the State contended that the Wutha applicant is bound by an issue estoppel in respect of the issue of whether the Wutha claim should be dismissed on the grounds of lack of authorisation, because of the commonality with the question which had been decided by Lindgren J in Wongatha. Further, the State contended that the decision of Lindgren J was a final decision and the Wutha applicant and the State were common parties to both proceedings. The State said it did not matter that there were additional parties to each of the proceedings.

9    The State also relied, particularly, upon the decision of Quall v Northern Territory of Australia (2009) 180 FCR 528 (Quall) in support of its contention that the findings and order of Lindgren J in Wongatha were fatal to the success of the Wutha claim in this proceeding.

10    In the reasons for decision in Ashwin No 1, I dealt with the question of the scope of Lindgren J’s findings and order in Wongatha. I do not intend to traverse that question again. This is because I have come to the view that, notwithstanding the findings and order of Lindgren J in Wongatha, by reason of the enactment of s 84D of the Native Title Act, it cannot be said, at this stage, that the Wutha claim is bound to be dismissed on the grounds that it is not lawfully authorised.

11    Section 84D of the Native Title Act was enacted after the Wongatha decision. It introduced a new statutory regime in relation to the question of authorisation of native title determination applications, and provides as follows:

(1)    The Federal Court may make an order requiring:

(a)    a person who, either alone or jointly with another person, made an application under section 61, to produce evidence to the court that he or she was authorised to do so; or

(b)    a person who has dealt with a matter, or is dealing with a matter, arising in relation to such an application, to produce evidence to the court that he or she is authorised to do so.

(2)    An order under subsection (1) may be made:

(a)    on the Federal Court’s own motion; or

(b)    on the application of a party to the proceedings; or

(c)    on the application of a member of the native title claim group or compensation claim group in relation to the application.

(3)    Subsection (4) applies if:

(a)    an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

(b)    a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

(4)    The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:

(a)    hear and determine the application, despite the defect in authorisation; or

(b)    make such other orders as the court considers appropriate.

12    In my view, by introducing s 84D into the Native Title Act, Parliament intended that the Court was to have discretion to determine whether a defect in the authorisation of a native title determination application, was to be conclusive as to the fate of that application. It follows, therefore, that as a consequence of the enactment of s 84D, it does not axiomatically follow from a determination that a native title claim has not been lawfully authorised, that the claim must, on that account, be dismissed. Rather, such a finding gives rise to the further question of whether it is in the interests of justice to proceed to hear the native title determination application, notwithstanding the defect in authorisation.

13    It also follows that, whereas Lindgren J was, on the then state of law, by reason of his findings, bound to dismiss the Wutha claim insofar as it related to the overlap land, this Court is not so bound in relation to the claim in this Court over other land, even if it was to adopt Lindgren J’s findings on the absence of authorisation.

14    In Spencer Bower and Handley, Res Judicata (4th ed, Butterworths Common Law Series, 2009), the learned author (at 113), after referring to a number of cases, states in relation to issue estoppel:

These cases illustrate the principle that a decision in favour of a defendant does not bar proceedings “founded on any new or altered state of circumstances”, and the statement by Dixon J that an issue estoppel created by a dismissal is limited to “the actual ground upon which the existence of the right was negatived.” (Footnotes omitted.)

15    Accordingly, I find that Lindgren J’s findings and order in Wongatha dismissing the Wutha overlap claim, do not pose such an insurmountable obstacle to the prospects of success of the Wutha claim in this proceeding, as to warrant the claim being summarily dismissed or struck out.

16    The State contended that s 84D of the Native Title Act could not operate so as to permit this Court to come to a different result on authorisation to that in Wongatha, because this would have the effect of undermining the final decision of Lindgren J and, thereby, undermine the doctrine of stare decisis.

17    In my view, the finality of the decision of Lindgren J will not be undermined because, subject, of course, to an appeal, that decision remains binding in respect of what it decided, namely, that in respect of the land comprising the overlap with the Wongatha claim, the Wutha claim is dismissed. Further, and in any event, it does not avail the State to complain that, by passing an Act which affects the impact of a Court decision, Parliament, thereby, undermines the doctrine of stare decisis. It is, of course, the prerogative of Parliament to make or change the law, insofar as it may be established by a decision of a court. Nor does a court which subsequently gives effect to the new statutory regime, undermine that doctrine.

18    The State also contended that by reason of the findings and order of Lindgren J in Wongatha, the s 84D relief was not available to the Wutha applicant in this proceeding. Section 84D of the Native Title Act, said the State, only operated where the Court which was seized with finally determining the native title determination application claim, also made the finding that that there was a defect in the authorisation. However, in this case, said the State, the finding that there were defects in relation to the authorisation of the Wutha claim, had been made by a different judge, namely, Lindgren J in the course of deciding a different native title determination application. The State went on to contend that s 84D did not give the Court in an interlocutory proceeding, the power to overturn a final decision of the Court. A first instance Court, said the State, could not act as a court of appeal.

19    This contention is not accepted.

20    First, the State’s contention that if the Court was to give effect to the provisions of s 84D in this proceedng, it would be overturning the final decision of Lindgren J, cannot be accepted. As I have mentioned above, the decision of Lindgen J remains binding on the parties to that proceeding unless overturned on appeal. That decision, as reflected in the order, is confined only to the dismissal of the claim in respect of the overlap land.

21    Secondly, it will be incumbent on this Court in the course of determining this proceeding, to consider and determine the question of whether the Wutha claim is lawfully authorised in respect of the land over which the claim is made, and if not, what the consequences are for the viability of the claim. This determination, when it is made, must be made in accordance with the Native Title Act as amended by the introduction of s 84D. The introduction of s 84D to the Native Title Act affords the Court additional powers in dealing with a native title determination application that is not lawfully authorised. Importantly, these additional powers were not powers that were available to be exercised by Lindgren J when he heard and determined Wongatha.

22    In other words, the determination in respect of any defect in authorisation of the Wutha claim in this proceeding will be made by the same Court that determines finally whether the Wutha claim should succeed or fail. However, that decision will be made by this Court under a different statutory regime to that which prevailed when Lindgren J made his decision. The consequence is that this Court is not, and will not be, bound to reach the same result as that reached by Lindgren J, even if it were to give effect to his findings that there are defects in respect of the authorisation of the Wutha claim. The further consequence is that it does not avail the State in its application for summary dismissal of the Wutha claim, to rely on the findings and order of Lindgren J dismissing the Wutha claim in respect of the overlap land, as leading inevitably to the dismissal of the Wutha claim in this proceeding.

23    The Yugunga–Nya respondents, however, contended that in Ashwin No 1, I have already determined not to exercise the discretion in s 84D(4) of the Native Title Act to proceed to hear and determine the application, notwithstanding the defect in authorisation. It is the case that I declined the oral application of the Wutha applicant to exercise the discretion of the Court, at that time, to hear and determine the Wutha claim, notwithstanding any defect in authorisation. Instead, I ordered that the persons comprising the applicant file and serve further evidence in relation to the question of authorisation. However, the decision that I made not to exercise the discretion of the Court to hear and determine the application, notwithstanding any defect in authorisation, was an interlocutory decision, not a final decision. It will, therefore, be open to the Court on a future occasion to revisit the question.

24    As mentioned, the State relied on the Quall case. In that case, the Full Court upheld the decision of the primary judge who had summarily dismissed a claim on the grounds that issue estoppel applied in the circumstances of that case. In that case, the native title determination claim was made over a large area of land. The land, the subject of the claim, was later divided into two areas, Area A and Area B. The claim in respect of Area A, was heard first. Mansfield J in Risk v Northern Territory of Australia [2006] FCA 404, dismissed the claim over Area A because the evidence was insufficient to establish an uninterrupted observance of the traditional laws and customs over the land. Having exhausted all avenues of appeal, the same applicant commenced a claim over Area B in which there were a number of common parties to the claim in respect of Area A. The primary judge found that there was a sufficient commonality in the issue raised in relation to Area B, to give rise to an issue estoppel on the basis of the findings in relation to absence of uninterrupted observance of traditional laws and customs made by Mansfield J.

25    There is a distinction between Quall and this case. In Quall, the findings which led to the dismissal of the claim, were about the absence of uninterrupted observance of traditional laws and customs. In this case, however, the findings and order of Lindgren J in Wongatha, relate to authorisation. Further, since Wongatha, a new statutory regime has been introduced which has changed the law in respect of authorisation. This was not the case in Quall.

26    The State also contended, albeit tentatively, that the principles of Anshun estoppel would preclude the applicant in this proceeding from revisiting the question of authorisation of the native title determination claim, and so posed an insurmountable obstacle to the success of the claim. However, I do not accept that contention, for the same reasons as I do not accept the State’s contention in relation to issue estoppel.

27    It follows that the State’s application is dismissed.

28    I will hear the parties on the directions for the trial of the preliminary issue of whether the Wutha claim is lawfully authorised and, if not, whether it should be dismissed on that account.

Associate:

Dated:    23 December 2010