FEDERAL COURT OF AUSTRALIA

Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales [2011] FCA 701

THE COURT ORDERS THAT:

1.    The applicant’s amended notice of motion dated 9 March 2011 be dismissed.

2.    The applicant pay the respondents’ costs of and incidental to the notice of motion referred to in order 1.

3.    The applicant not be permitted to file any further application seeking to vary or set aside the orders of 1 October 2010, or otherwise to reinstate the proceeding, by notice of motion or otherwise, without leave of the Court.

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.

THE COURT ORDERS THAT:

1.     The applicant’s amended notice of motion dated 9 March 2011 be dismissed.

2.    The applicant pay the respondents’ costs of and incidental to the notice of motion referred to in order 1.

3.    The applicant not be permitted to file any further application seeking to vary or set aside the orders of 1 October 2010, or otherwise to reinstate the proceeding, by notice of motion or otherwise, without leave of the Court.

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

background

1    This is the third application seeking to set aside the orders I made in each proceeding on 1 October 2010 (the October orders).

2    The October orders were made consequent on reasons for judgment published on the same date (see Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales [2010] FCA 1073). They provided that:

1.    The time for filing and service of the amended Native Title Determination Application and all material on which the applicants seek to rely in relation to the preliminary question as provided for in Order 3(a) and (b) of the Orders made by Justice Moore on 25 July 2008 be extended to 29 October 2010.

2.    In the event that the applicants do not, by the date specified in Order 1 above:

(a)    comply with order 1 above; and

(b)    file and serve an affidavit of one of the applicants, stating, on behalf of the applicants that the material filed and served by the applicants comprises all the material on which the applicants seek to rely in relation to the preliminary question,

these proceedings will stand dismissed without further order.

3.    The parties have liberty to apply to re-list the proceedings for further orders or directions on 7 days’ notice.

4.    In the event that the proceedings are not dismissed pursuant to Order 2 above, the proceedings be listed for further directions on 9 November 2010.

3    Pursuant to orders made by Madgwick J on 18 July 2006 and by Moore J on 25 July 2008 in each proceeding, the “preliminary question” – which Madgwick J ordered be tried first and separately – relates to “the issues in the proceedings which do not concern whether any native title that might have existed in relation to the subject land has been extinguished by acts of, or on behalf of, the State.”

4    As at 29 October 2010, the applicants had not complied with orders 1 or 2(b) of the October orders. As a result, both proceedings stood dismissed on and from that date pursuant to order 2. On the same day, however, the applicants filed a notice of motion in proceeding no. NSD 6009 of 2002 seeking leave to appeal from the October orders. The motion was dismissed by Foster J on 3 November 2010. His Honour noted on that occasion that the applicants intended to make a further application to me to vary the October orders.

5    The foreshadowed application was made by way of a notice of motion filed on 17 November 2009 in each proceeding. The motion sought that order 2 of the October orders be vacated, and that the time for filing and service of the amended native title determination application in each proceeding (the amended applications) and all evidence on which the applicants seek to rely in relation to the preliminary question (the preliminary question evidence) be extended until 30 April 2011. On 16 December 2010 I dismissed the application and gave oral reasons for judgment which were subsequently published (see Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales (No 2) [2010] FCA 1477).

6    The present notice of motion was filed on 10 February 2011 in each proceeding. It seeks that order 1 of the October orders be set aside, and that the Court make provision for the filing and service of certain exhibits to an affidavit of Neville Williams affirmed 4 February 2011. Two of these exhibits (Exhibits NW-L and NW-M) are the proposed amended applications. The remainder (Exhibits NW-K, NW-N and NW-O), along with other evidence already filed by the applicants, is said to constitute the totality of the preliminary question evidence.

7    The motion was supported by three affidavits of Mr Williams: the affidavit affirmed 4 February 2011, to which the amended applications and other evidence were exhibited; and two further affidavits affirmed 9 March and 6 June 2011 respectively. The effect of my granting the motion would be the reinstatement of both proceedings.

Parties’ submissions

8    Counsel for the applicants advanced three principal arguments in support of the motion.

9    The applicants’ primary submission was that, if the motion were denied and the proceedings not reinstated, they would suffer substantial prejudice. According to the applicants, it could take between 18 months and two years for a new application to be prepared. This was said to be due to the time required for the authorisation of new claimants, the preparation and filing of a fresh native title determination application, the application of the registration test, and compliance with the applicable notification procedures. In his affidavit of 4 February 2011, Mr Williams states that the structure of the applicants’ claim group involves “a small number of key knowledge holders”. Mr Williams’ evidence is that many of these key knowledge holders are elderly. Since the proceedings were initiated in 2002, Mr Williams says at least thirteen key knowledge holders have passed away, and at least a further ten are presently frail and/or disabled. In his affidavit of 6 June 2011, Mr Williams refers particularly to a Mr Albert “Sibby” Johnson, whom Mr Williams believes to be almost eighty years old. Mr Johnson suffers from a number of serious medical conditions. Mr Williams explains in his affidavit that Mr Johnson possesses important knowledge of the history and traditional law and custom of the claim group, which was passed on to him by his grandfather, a “Cleverman” known as Moolbong. According to Mr Williams, Mr Johnson is “very cautious” about sharing this knowledge, but wishes to give evidence (preferably on country) about the importance of certain sites at Lake Cowal. The applicants therefore submitted that, if the proceedings are not reinstated, there is:

a real risk that a significant proportion of the knowledge holders within the claim group will, by the time the matter comes before the Court, either have passed away or be incapacitated to give evidence.

10    The applicants also pointed by way of analogy to s 94C(3) of the Native Title Act 1993 (Cth) (the Native Title Act), which provides that the Court must not dismiss an application relating to a future act “if there are compelling reasons not to do so”. The applicants submitted that the serious prejudice which would be occasioned if they were required to file a fresh application, combined with the further considerations outlined below, constitutes a “compelling reason” not to allow the proceedings to stand dismissed.

11    Secondly, the applicants noted that the present motion seeks directions for the filing and service of the amended applications. The applicants submitted that, given the nature of the relevant amendments and the “substantial body of evidence” which has now been collated in support (including the other exhibits to Mr Williams’ affidavit of 4 February 2011), the applications were highly likely to pass the registration test. This was said to be of relevance by way of analogy to s 190F(6) of the Native Title Act, which provides in effect that the Court may dismiss an application which has previously failed the registration test if satisfied that it has not been amended in a way which would lead to a different result. Thus, in circumstances where dismissing the motion would be tantamount to dismissing the proceedings, the applicants argued that the likelihood of passing the registration test weighs in favour of reinstatement.

12    Thirdly, the applicants submitted that their non-compliance with the October orders – which, as noted above, led to the automatic dismissal of the proceedings – was at least partially due to inadvertence. In his affidavit of 9 March 2011, Mr Williams refers to a notice of motion in proceeding no. ACD 6001 of 2002, dated 22 May 2009 and heard on 2 June 2009, by which the applicants sought (amongst other things) a proposed order 2 providing that the time for the filing and service of the amended applications and the preliminary question evidence be extended until after the applicants’ application for funding had been dealt with. Orders disposing of the motion were made on 5 August 2009; however, these did not include proposed order 2. Mr Williams’ evidence is that, at that time, he did not appreciate that proposed order 2 had not been made.

13    The NSW Minister for Lands (the Minister) and NTSCORP Ltd (NTSCORP) opposed the motion. The Minister emphasised that this proceeding is in essence an application to vary orders before they are entered, rather than an application to dismiss a proceeding under the Native Title Act. As such, the Minister said that the onus lay on the applicants to persuade the Court that the discretion to vary or vacate the October orders should be exercised in their favour.

14    The Minister’s position was that the discretion should not be so exercised. The Minister placed particular weight on the fact that the present motion constitutes the applicants’ third attempt to have the October orders varied or set aside, and on a number of alleged irregularities in the amended applications. Both matters are explored in more detail below.

discussion

15    The Minister’s submission about the essential character of the present application must be accepted. For this reason, the references made by the applicants to ss 190F(6) and 94C of the Native Title Act are of little weight.

16    The power to set aside or vary orders before entry is found in O 35 r 7(1) of the Federal Court Rules, which provides that:

The Court may vary or set aside a judgment or order before it has been entered.

17    The principles directly relevant to the exercise of this power were set out in the Minister’s written submissions, where it was said that:

The power is to be exercised judicially (Allstate Life Insurance Co v ANZ Banking Group Ltd (No 18) (1995) 133 ALR 667 at 675) and with caution (Australian Fisheries Management Authority v PW Adams Pty Limited (No 2) (1996) 66 FCR 349 at 354). It is an indulgence, not the right of a party (Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 per Kirby P at 394 (quoted in Australian Fisheries)). Even where there has been a miscarriage of justice the jurisdiction to set aside a judgment or order should be exercised with great caution having regard to the importance of the public interest in the finality of litigation (Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303, 317; Re Wallace; ex parte Wallace [1997] FCA 388).

18    Against the background of these principles, it is first necessary to recognise a potential inconsistency in the applicants’ position: in short, the delay which the applicants submitted will seriously prejudice them is in large measure the result of their own conduct of the proceedings. In other words, the applicants’ own delay led to the proceedings being dismissed in October 2010. Yet the prejudice the applicants now identify is due to delay which they themselves could have avoided. This history of the proceedings discloses the extraordinary delay involved.

19    Although the applications were brought in 2002, it was not until 2007 – some five years later – that the applicants, according to the chronology provided to me at the hearing, applied to NSW Native Title Services Ltd for financial assistance. Moreover, it was the applicants who sought an order in May 2009 (referred to above) which would have effectively prevented the matters from moving forward until the applicants obtained funding. The pursuit of funding was also the reason for a number of adjournments sought by the applicants between April and September 2010 (see Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales (No 2) [2010] FCA 1477 at [11]-[23]). It is therefore evident that, until the making of the October orders, the applicants chose to focus their energies on obtaining financial assistance even at the price of significant delays to the progress of the proceedings. This remained the case even after July 2006, when the applicants were first ordered to file and serve the preliminary question evidence (see below).

20    Implicit in this course is the applicants’ recognition of the importance of adequate funding to the successful conduct of proceedings such as these. It is therefore relevant to note that, as at the date of the hearing of this motion, no financial assistance had been secured despite concerted efforts made over a period of more than three years.

21    It is also relevant to observe that, despite the 10-12 volumes of evidence now collated by the applicants and the concerns they have expressed regarding the effects of the passage of time, the applicants estimate that it will take between 18 months and 2 years for a fresh application to be brought before the Court. Although based on the pace at which these matters have progressed to date this estimate may not be unrealistic, it again highlights the extent to which the applicants’ own delays have contributed to the potential prejudice on which they now rely.

22    Turning to the likelihood of the applications passing the registration test, it is sufficient to note that the Minister takes a different view from the applicants. In written submissions the Minister pointed to a number of respects in which the amended applications were said to be irregular, including the fact that the amended applications do not in terms seek a determination of native title. Rather, they seek that:

Determination of Native Title [be] deferred, because [the applicants] are dealing with letters to the executive government of NSW and the Commonwealth Government of Australia in relation to jurisdictional matters.

23    These “jurisdictional matters” appears to relate to the applicants’ position that:

the Australian court[s] do not have any authority to make decisions on our land matters given the evidence recently filed.

24    Elsewhere in the amended applications, the applicants record that:

Our submission is that this matter is stood over until the matter of our alien status, jurisdiction and our sovereign status is determined upon by judgement or opinion from superior courts, such as the International Court of Justice.

25    Whatever the terms of the amended applications, it is apparent for the reasons given above that the likely outcome of the registration test is not capable of weighing materially in the applicants’ favour.

26    Finally, the applicants’ apparent lack of appreciation that orders deferring the preparation of evidence had not been made in August 2009 does not weigh in their favour. It again exposes the fact that the applicants elected to focus their energies on obtaining funding rather than prosecuting the proceedings (funding, as noted above, has still not been obtained). For present purposes I confine myself to observing that, on 18 July 2006, Madgwick J ordered the applicants to file and serve the preliminary question evidence by 20 November 2006. This date was subsequently extended to 20 June 2007 and then to 1 July 2008 at the request of the applicants. The applicants did not comply with the amended orders. Nor did they comply with the subsequent orders of Moore J, made on 25 July 2008, which extended the date for the filing and service of the preliminary question evidence to 14 November 2008. Nor still did they comply with the October orders, which extended the relevant date to 29 October 2010.

27    In these circumstances, even if the applicants’ other submissions are accepted to their fullest extent, they are not sufficient to persuade me that the proceedings should be reinstated. This conclusion is strengthened by the fact that, as noted above, the proceedings have now stood dismissed since 29 October 2010 despite two previous attempts to have them reinstated. It is further reinforced by the importance of the public interest in preserving the finality of decisions of this Court.

28    Taken together, these reasons lead me to conclude that I should dismiss the applicant’s notice of motion in each proceeding. Furthermore, in light of the circumstances outlined above, I consider it appropriate to order that the applicants not be permitted to make a further application – by notice of motion or otherwise – to reinstate these proceedings without leave of the Court.

Associate:

Dated:    23 June 2011