FEDERAL COURT OF AUSTRALIA

Kogolo v State of Western Australia [2011] FCA 1481

THE COURT ORDERS THAT:

1.    The Notice of Discontinuance filed on 19 December 2008 be set aside in so far as it applies to that area of land formerly subject to Reserve 22401.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant, by an interlocutory application dated 17 November 2011, seeks an order that the Notice of Discontinuance (Discontinunce), filed on 19 December 2008, pursuant to leave granted by me on 8 December 2008, be set aside, insofar as it applies to that area of land formerly subject to Reserve 22401 (the UCL Area). I have had provided to me maps disclosing the UCL area. I have delineated these in blue.

2     The application is supported by an affidavit of Laura Lee Grace McGregor. She is employed by the Kimberley Land Council, Aboriginal Corporation as its Deputy Principal Legal Officer and is the Solicitor for the applicant.

3    The State of Western Australia consents to the order proposed and the written submissions in support are signed by counsel for both the applicant and the State.

The Facts

4    The applicant made this native title determination application on 22 March 1996. At that date, the majority of the application area (Part A) had never been subject to any right or interest granted by the Crown, or any other action by the Crown, that might have extinguished native title: it was unallocated Crown land (UCL).

5    The balance of the application area comprised four areas (Excluded Areas), each of which had, at one stage or another, been reserved for a particular public purpose. At the date the application was made, one of these areas, the UCL Area, was not subject to any reservation or other tenure that might have affected or extinguished native title: it was UCL. Previously it had been subject to Reserve 22401 for the purpose of “Stock Route” which was cancelled on 29 April 1960.

6    On 9 November 2007, I made a determination of exclusive possession native title over Part A: Kogolo v State of Western Australia [2007] FCA 1703. At that time, it was the intention of all the parties to the application, if legally possible, to consent to a determination of exclusive native title rights and interests in respect of the entirety of the application area, including the UCL Area. To this end, all parties agreed to finalise the determination over the Excluded Areas at a later date when outstanding tenure issues had been resolved.

7    Following resolution of the tenure issues a second native title determination application was filed on behalf of the Ngurrara native title claim group on 3 December 2008 covering the Excluded Areas, that application being WAD 281 of 2008 (Second Application).

8    The applicant and the State understood that the only issue to be resolved before a determination of exclusive possession native title could be made in respect of the UCL Area was proof of occupation as required by s 47B(1)(c) of the Native Title Act 1993 (Cth) (NTA) (occupation requirement). It was thought that there was no reservation, proclamation, dedication, condition, permission or authority within the meaning of s 47B(1)(b)(ii) of the NTA (reservation etcetera) that covered the UCL Area, when:

(a)    this application was made on 22 March 1996; and

(b)    the Second Application was made on 3 December 2008.

9    Accordingly, as at 3 December 2008, the applicant and the State were of the view that, subject to the occupation requirement, any extinguishment of native title rights and interests in relation to the UCL Area by the creation of Reserve 22401 ought to be disregarded pursuant to s 47B(2) of the NTA, and that it was open to the Court to make a determination of exclusive native title in respect of the UCL Area.

10    It was also the case that, subject to the occupation requirement, a determination of exclusive native title in respect of the UCL Area could have been made on 9 November 2007 as part of the Part A determination. The parties decided, however, to deal with the UCL Area together with the other Excluded Areas in the Second Application. This allowed all areas to which either s 47A or s 47B of the NTA applied to be determined at one time following provision of occupation evidence, without delaying the Part A determination.

11    Following the filing of the Second Application occupation evidence was provided to, and accepted by the State in relation to the UCL Area and the other Excluded Areas.

12    On the basis of these actions and communications between its solicitor and the solicitor for the State, when the Discontinuance was filed the applicant believed:

(a)    at the date this application was made and at the date the Second Application was made, no reservation etcetera covered the UCL Area; and

(b)    accordingly, subject to the occupation requirement, s 47B could apply such that the extinguishing effect of the creation of Reserve 22401 could be disregarded, and a determination of exclusive native title could be made in respect of the UCL Area on the basis of the Second Application.

13    On 19 December 2008, the applicant filed the Discontinuance of this application to the extent that it covered the Excluded Areas.

14    On 17 February 2010, Ms Sheila Begg, the solicitor in the State Solicitor’s Office with carriage of this matter on behalf of the State, notified the solicitor for the applicant that, in her view, Exploration Permit (EP) 417 is a reservation etcetera EP 417 was granted on 22 February 2000 and covered the UCL Area. Previously, Ms Begg had been advised that EP 417 was suspended as at 3 December 2008, which she took to mean that it had ceased operation as at that date. Now she understood rather that the conditions of EP 417 were suspended but that EP 417 itself remained on foot as at that date. Therefore, Ms Begg now realised that when the Second Application was made on 3 December 2008, s 47B(1)(b)(ii) of the NTA applied to the UCL Area. Accordingly, s 47B did not apply such that the extinguishing effect of the creation of Reserve 22401 could not be disregarded.

15    Accordingly, it is not open to the Court to make a determination of exclusive native title in respect of the UCL Area on the basis of the Second Application. However, the applicant and the State would like to seek the recognition by the Court of exclusive possession native title rights and interests in respect of the UCL Area.

The Law

16    The creation of Reserve 22401 extinguished some native title rights and interests: Western Australia v Ward (2002) 213 CLR 1 at [219]-[222].

17    That extinguishment could be disregarded under s 47B of the NTA if, when this application was made, the UCL Area was not subject to a reservation etcetera and was occupied by a member of the native title claim group: NTA, s 47B.

18    As at 3 December 2008 when the Second Application was made, s 47B of the NTA could not apply to the UCL Area because at that date the UCL Area was subject to EP 417 which was granted on 22 February 2000 and was a reservation etcetera for the purposes of s 47B(1)(b)(ii) of the NTA: Moses v State of Western Australia [2007] FCAFC 78, [197] and [199].

19    However, when this application was made, on 22 March 1996, the UCL Area was not subject to a reservation etcetera Therefore, subject to evidence that a member of the native title claim group occupied the area at that date, s 47B would have applied to the UCL Area and the extinguishment of native title by the creation of Reserve 22401 could have been disregarded, pursuant to s 47B(2).

20    As this application has been discontinued with respect to the Excluded Areas, s 47B cannot now apply to the UCL Area such that the extinguishment of native title due to the creation of Reserve 22401 can be disregarded on the basis of this application.

21    If the Discontinuance were set aside in so far as it applied to the UCL Area, this application would be reinstated in respect of that area, and s 47B could operate to disregard the prior extinguishing effect of the creation of Reserve 22401 so that a determination of exclusive possession native title might be made.

22    The Discontinuance can be set aside either:

(a)    On the basis that it is a nullity by reason of mistake; or

(b)    In the exercise of the Court’s inherent power to prevent injustice.

Setting aside the Discontinuance as a nullity

23    The Court has inherent jurisdiction to set aside a discontinuance of proceedings if the act constituting the discontinuance was a nullity in the eyes of the law by reason of fraud or mistake: Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; R v Moore [1957] 2 All ER 703; R v Essex Quarter Sessions Appeals Committee, Ex parte Larkin [1961] 3 All ER 930; R v Medway [1976] 1 All ER 527. The basis on which a discontinuance might be set aside is that the mistake or fraudulent inducement renders it in fact a complete nullity such that it cannot be described as a deliberate act: Larkin WLR at 1288. In that case, the application has not been abandoned, which means that it can be heard on its merits.

24    This possibility has been considered in several English cases dealing with setting aside abandonments of appeals against criminal convictions. The Full Court of the Federal Court, in Christodoulou v Disney Enterprises Inc, effectively accepted that it had inherent jurisdiction to set aside a notice of discontinuance in a civil case, applying the “nullity test”: Christodoulou, at [25] and [28].

25    The English courts have used the expression “nullity” in a “very wide sense indeed”, including:

(a)    “Something which makes the giving of a notice of abandonment not the applicant’s true act”;

(b)    “A complete misapprehension which was in no way his fault”; and

(c)    “Fundamental mistake”: Medway QB, at 786, 793-794. The Court in Medway summarised the effect of English decisions made over the previous 65 years.

26    The Court of Appeal in Medway concluded that “the kernel of what has been described as the ‘nullity test’ is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the applicant did not go with his act of abandonment”: Medway QB, at 798.

27    In this case, at the date of the Discontinuance, the applicant was mistaken in its belief that at that date, there was no reservation etcetera that covered the UCL Area. That mistake led it to discontinue this application. If its belief had been otherwise, it would not have discontinued the application.

28    The basis for that belief was reliance on the State’s representative's assessment of whether EP 417 was a reservation etcetera The applicant had no opportunity before 17 February 2010 to form its own view about whether EP 417 was a reservation etcetera, since the only source of its opinion in that regard was the bare statement by Ms Begg that she was satisfied that s 47B applied in respect of the UCL Area. The applicant was not obliged to inquire into the existence of any potentially extinguishing act of the State, or any act of the State that might be a reservation etcetera, since “the party asserting extinguishment carries an evidential onus of proving the nature and content of the executive act relied upon”: Western Australia v Ward  (2000) 99 FCR 316, [120]. If no extinguishing act or reservation etcetera is asserted by the State, the applicant need not make its own inquiries about their existence.

29    The Discontinuance can only have been made in reliance on the State’s representative's mistaken view of the status of EP 417, and was not the result of a deliberate and informed decision; the mind of the applicant did not go with its act of discontinuing the application.

Setting aside the Discontinuance in the interests of justice

30    The power to set aside a discontinuance extends beyond cases of fraud or mistake: the “Court has power to set aside a notice of discontinuance in its discretion, as part of its inherent power to prevent injustice”: Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1050 (A26 of 2002) at [5]. See also Applicant NACT of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 316 (NACT of 2001) at [4]; NACU of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1444.

31    The existence of such a discretion in native title cases is supported by:

(a)    the explicit existence of power in s 13 of the NTA to vary a determination where the interests of justice require it; and

(b)    the fact that a native title determination is a decision in rem which fixes the recognised native title rights and interests of the native title holders in the long term. It is important to get them right.

32    The foundation for the Court’s jurisdiction under s 13 is that a determination has been made in respect of an area: NTA, ss 13(1)(a) and 13(2). In this case, no determination has been made in respect of the UCL Area. Thus, there is no foundation for the Court’s jurisdiction under s 13(4) of the NTA to vary the Part A determination to include that area. The only option available for the applicant is to seek to have the Discontinuance set aside.

33    Factors in the exercise of such a discretion have been held to include:

(a)    The existence of a serious irregularity in the conduct of the proceedings, such as the solicitor for the applicant not having instructions to discontinue the proceedings. The injustice to the applicant of being deprived of the opportunity to pursue his claims and the lack of prejudice to the respondent are also relevant to the exercise of the discretion: A26 of 2002, [13], [23] and [24].

(b)    The existence of a satisfactory explanation for why the proceedings ought to be reinstated. A lack of legal advice has been held not to be sufficient: NACT of 2001, [31]-[38]; and

(c)    Whether the proceedings are likely to succeed if they are allowed to proceed: NACT of 2001, [39].

34    I am satisfied that I have the power to set aside the Discontinuance and that the discretion should be exercised in this case to do so because:

(a)    A Ngurrara applicant will not have an opportunity to obtain a determination of exclusive possession native title in respect of the UCL Area unless the Discontinuance is set aside;

(b)    There is a viable explanation why the proceedings ought to be reinstated, as set out above;

(c)    The State will not suffer any prejudice; it has indicated that it will consent to the Court setting aside the Discontinuance;

(d)    A determination of exclusive possession native title in respect of the UCL Area is likely to be made if the Discontinuance is set aside; and

(e)    If the Applicant had been aware that s 47B might not apply in respect of the UCL Area when the Second Application was made, it would not have discontinued this application in so far as it covered the UCL Area, since that area could have been subject to a determination of exclusive native title rights and interests if it had remained subject to this application, as, when the application was made on 22 March 1996, no reservation etcetera covered the UCL Area.

35    There will, for all these reasons, be an order in terms of the application. There will be no order as to costs.

Associate:

Dated:    19 December 2011