FEDERAL COURT OF AUSTRALIA

Quall v Northern Territory of Australia [2012] FCA 677

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal be refused.

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

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal be refused.

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

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal be refused.

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

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal be refused.

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

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal be refused.

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

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal be refused.

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

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal be refused.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    In each of these matters, the applicant applies for an extension of time to file a notice of appeal under r 36.05 of the Federal Court Rules 2011.

2    Each application concerns a proposed appeal from the decision of the Court in Quall v Northern Territory of Australia (2011) 286 ALR 374; [2011] FCA 1441 (the primary decision). In the primary decision, the claims by the applicant (to the extent they were outstanding) in seven claims for a determination of native title under the Native Title Act 1993 (Cth) (the NT Act) were summarily dismissed. The Court dismissed each of those claims on the basis that the continued pursuit of them would amount to an abuse of process: see the primary decision at [88].

3    The primary decision was given on 16 December 2011. The solicitors for the applicant sought to appeal from the dismissal orders a little belatedly in January 2012. Hence, the present applications for an extension of time for leave to appeal. No question of prejudice was raised by the respondent and the extension application was brought promptly when the problem emerged. The sole question is therefore whether the proposed appeals have any prospect of success. See eg Sutherland v Vale [2007] FCA 1876; SZMBW v Minister of Immigration and Citizenship [2008] FCA 1767.

4    The primary judge set out at [2]-[12] the history of the various applications by the applicant for the determination of native title. The following is a brief summary of the relevant history taken from those reasons.

5    In proceeding NTD 33 of 2011, the Court heard and determined a number of native title determination applications by several applicants including the present applicant. The land and waters the subject of those claims are generally within the urban areas of Darwin; certain parts of some of those claims in rural areas surrounding the city of Darwin were not heard and determined at the same time. The claims heard and delivered in that proceeding were unsuccessful at first instance: Risk v Northern Territory of Australia [2006] FCA 404 (Risk) and on appeal: Risk v Northern Territory of Australia (2007) 240 ALR 74; [2007] FCAFC 46 (Risk FC). Special leave to appeal to the High Court was refused: Quall v Northern Territory of Australia [2008] HCA Transcript 127. There were two applications by the present applicant which were only partly disposed of by those decisions: matters NTD 6026 of 1998 and NTD 6013 of 1998.

6    There were then eight outstanding claims by the applicant for the determination of native title. Matter NTD 6013 of 1998 to the extent that it had not already been addressed in Risk was dismissed, in effect because the decisions in Risk and Risk FC also in fact applied to all the claim areas of that claim: Quall v Northern Territory [2009] FCA 18 (Quall). An appeal to the Full Court was unsuccessful: Quall v Northern Territory of Australia (2009) 180 FCR 528.

7    The remaining claim areas in matter NTD 6026 of 1998, and six other claims by the applicant relating to land and waters in the rural areas surrounding the city of Darwin were then addressed by the primary decision. The primary decision at [13] sets out the details of each of those claims.

The Primary Decision

8    In the primary decision, the primary judge recognised that there were distinguishing features of some of the seven outstanding claims by the applicant: at [14]-[22]. His Honour then summarised the contentions of the Northern Territory, and of the applicant. On these applications, counsel on behalf of the applicant did not say that the distinguishing features were of any significance when considering whether to extend the time to appeal. The submissions dealt with the seven claims as a group.

9    In essence, the Northern Territory contended that the seven outstanding claims should be summarily dismissed because the decisions in Quall and Risk FC already decided the same issues, so there was either an issue estoppel or there was an abuse of process by the applicant in endeavouring to pursue them.

10    The applicant contended that issue estoppel could not arise in proceedings under the NT Act, and that there was no abuse of process as he sought to present different claims based upon different evidence. In particular, he adduced evidence from Dr William Day, a consultant anthropologist, by two affidavits and a report dated November 2010.

11    The primary judge did not determine whether issue estoppel was a principle applicable to proceedings under the NT Act, either generally or in relation to the proceedings before him. That matter was considered in Dale v Western Australia (2011) 190 FCR 72 (Dale FC), but as his Honour decided to dismiss each of the proceedings as an abuse of the process of the Court, it was not ultimately necessary to further consider the question of issue estoppel.

12    As to abuse of process, the primary judge identified the relevant principles in uncontentious terms at [36]-[42]. It is not necessary to repeat that. He applied those principles, in the context of whether in reality there is simply an attempt to relitigate an issue or issues determined in previous proceedings (the contention of the Northern Territory), against the non-exhaustive list of factors identified by Giles J in State Bank of New South Wales Ltd v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423 at 64,098 (Stenhouse), and adopted by French J (as he then was) in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59]-[68] as well as by the Full Court in Dale FC at [112]. The Stenhouse factors are:

1.    the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

2.    the opportunity available and taken to fully litigate the issue;

3.    the terms and finality of the findings as to the issue;

4.    the identity between the relevant issues in the two proceedings;

5.    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;

6.    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

7.    an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

13    The consideration of relevant matters led to the following conclusions:

1.    the ultimate conclusion in Risk and each of the primary conclusions on which it was based were each conclusions of paramount importance in Risk;

2.    the applicant had ample opportunity in Risk to fully litigate the fundamental issue as to what was the relevant Aboriginal society at sovereignty possessing native title rights and interests in and in relation to the land and waters in the Darwin area;

3.    on the topic of the relevant Aboriginal society at sovereignty possessing native title rights and interests in and in relation to the land and waters in the Darwin area, the decision in Risk made a finding about the status of the Larrakia people, so as to foreclose any other Aboriginal society from being able to establish itself as the society holding such rights in that area under different laws and customs;

4.    the issues in each of the proceedings, other than those in matter NTD 6039 of 1998, were substantively similar to, or the same, as the issues considered in Risk; and in the case of matter NTD 6039 of 1998 – which was an application for the determination of compensation rather than an application for the determination of native title – the same conclusion applied, as the establishment of native title rights and interests was a necessary step before establishing an entitlement to compensation;

5.    the evidence of Dr Day was neither fresh or relevantly significant, and no satisfactory explanation had been given for its late production; and

6.    overall, having regard to the conclusions already reached, as the nature of the Aboriginal society put forward by the applicant was one which had been put forward previously over a lengthy period, “it would be oppressive to the Northern Territory, it would be a needless waste of both the Court’s and the public’s resources and it will be damaging to the reputation of the judicial system” if the applicant were to be allowed to keep litigating that same case: at [87].

14    Consequently, the primary judge concluded that it was an abuse of the process of the Court in the applicant continuing to pursue the seven proceedings in issue. His Honour said he had reached that conclusion with the high degree of certainty required to justify their summary dismissal.

The Proposed Grounds of Appeal

15    The applicant made oral submissions through counsel in support of the applications, and provided a proposed notice of appeal. He also provided, and relied upon, his written submissions to the primary judge. The submissions were common to each application seeking an extension of time to appeal. They did not distinguish any one application from the other. For present purposes, therefore, it is also not necessary to do so.

16    The proposed grounds of appeal were under three headings, and were as follows:

Abuse of Process

1.    In the primary decision, the primary judge misapplied the principles of abuse of process to native title claims on the grounds that a special circumstances exception should apply to native title.

2.    The primary judge failed to consider the fact specific nature of native title claims, and that not all circumstances and factual bases to a claim area are similar. This led to an error in the application of the abuse of process principle. It should not have been applied in the primary decision.

3.    The primary judge failed to have proper regard to the need to achieve justice and equality between parties, especially given:

(a)    the effect the litigation would have had on the applicant and his claim group;

(b)    whether abuse of process should be considered in this case; and

(c)    the claimant group.

(4)    The primary judge failed to properly consider the best interest of the applicant when applying the abuse of process principle.

(5)    The primary judge wrongly applied the reasoning by McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286, in that the applicant:

(a)    has used the Court’s procedure unjustifiably or oppressively towards one party; and

(b)    has used the Court’s procedure for the purposes of bringing the administration of justice into disrepute.

(6)    The primary judge erred in finding that the applicant’s claim could not proceed as it was an abuse of process as a result of the findings made by Mansfield J in Risk.

(7)    The primary judge wrongly held that the ultimate issues determined in Risk were also applicable in relation to the presently claimed areas.

(8)    The primary judge erred in finding that the ultimate issue determined in Risk was no longer in dispute; a set of new factual circumstances have given rise to a consideration of evidential material which would change the ultimate issue as determined in Risk.

(9)    The primary judge erred in the application of the principles of abuse of process on the basis that new factual circumstances had been established by expert evidence which created a new set of questions of fact and law.

(10)    The primary judge erred in holding that the applicant, in seeking to establish the Danggalaba Land Owners Group (DLOG) model, gave rise to or substantiated an abuse of process finding.

(11)    The primary judge ought to have found that there were significant issues for determination in this case [all being considered together] which were not fully litigated or determinate appropriately in Risk, namely that:

(a)    there are significant ceremonial and dreaming tracks in the claim areas and as a result there are issues of connection to country that were not considered and could not have been considered in Risk nor in Quall nor in these matters;

(b)    there is continuity of practice or traditional law and custom as to the claim areas including:

(i)    hunting, fishing and foraging,

(ii)    the practice of ceremonial obligations, and

(iii)    the maintenance of sites, and

(c)    there is little if any extinguishment of native title in the claim areas.

(12)    The primary judge wrongly applied the finding in Risk to the claim areas in order to determine that the applicant’s claim in respect of the claim areas constituted an abuse of process.

B.    Every opportunity to litigate

(13)    The primary judge wrongly concluded that the applicant:

(a)    had every opportunity to fully litigate the issue;

(b)    could not show that the exercise of native title was not substantially interrupted during the twentieth century in the claim areas determined in Risk; and

(c)    would be unable to substantiate the claim group’s continued exercise of native title rights and interests in the twentieth century in the claim areas by the claim group.

(14)    The primary judge failed to properly take into account that the applicant was unrepresented in Risk, and that, as a result, the applicant did not have every opportunity to fully litigate his claim for native title.

(15)    The primary judge erred in holding that the findings in Risk as to the aboriginal society possessing rights and interests in the claim area was determinative or applicable to the nature of the native title rights and interests in the claim areas the subject of the current claims.

(16)    The primary judge erred in finding that, in litigating the issues arising in connection with the claim areas, the applicant was seeking to re-litigate, or to pursue, a case that had already been decided on similar or identical issues as to the claim areas as determined in Risk and Quall.

(17)    The primary judge failed to have regard to the distinction between a party seeking to re-litigate an issue or issues already determined in a previous decision, and a party which did not have an opportunity to properly litigate a matter, specifically in relation to providing expert opinion and evidence.

C.    Factual matrix, expert evidence and fresh evidence

(18)    The primary judge failed to have due regard to the expert evidence of Dr Day as it addressed factual issues which were not before the Court in Risk, and in doing so his Honour overlooked the significance of expert opinion which contests the expert evidence presented in Risk.

(19)    The primary judge erred in holding that the applicant was required to produce new evidence to show that the findings in Risk did not apply in order to establish native title in the claim areas.

(20)    The primary judge failed to give proper weight and consideration to the purpose and application of the Native Title Act 1993 (Cth) as it applies to native title claimants, and specifically, the construction and constitution of claimant groups.

(21)    The primary judge failed to take into account submissions made by counsel for the applicant as to the existence of a specific group namely the DLOG, which is identified in the expert evidence of Dr Day as having continuity of existence before settlement and which has not since been substantially interrupted.

(22)    The primary judge erred in reasoning that the decision in Dale involved factual issues that were similar to the factual issues in the present claims, and on that basis that the reasoning in Dale could be applied to the current claims.

(23)    The primary judge failed to distinguish Dale on the following bases:

(a)    different circumstances and factual bases to the present claims;

(b)    different litigation circumstances which are not similar to Quall or to the present claims, especially in relation to expert evidence.

(24)    The primary judge failed to properly construct the factual and evidential matrix to which the expert evidence of Dr Day was directed, and in doing so failed to accept its relevance for the purpose of applying the principle of abuse of process.

(25)    The primary judge erred in not properly considering the nature of the expert evidence of Dr Day and its material weight and evidentiary weight, considering that that evidence had not been presented in Risk, on the following grounds:

(a)    Dr Day’s reports critiques the expert opinion and evidence adduced in Risk, and challenges its accuracy, purpose and final conclusion;

(b)    Dr Day’s evidence draws attention to a factual dispute surrounding the construction of claimant groups in Risk, which the applicant was unable to effectively ventilate in Quall;

(c)    Dr Day’s evidence disputes the anthropological model offered by other expert evidence in Risk, and challenges the finding in Risk that the Larrakia were the original aboriginal society at sovereignty;

(d)    Dr Day’s evidence draws attention to a factual dispute which is sufficient to require the Court’s attention and determination in these claims; and

(e)    Dr Day’s evidence was not tested in open Court, so that his Honour’s reasoning as to the weight and value to place on Dr Day’s evidence could not properly be determined.

(26)    The primary judge failed to have regard to the weight of new expert evidence as it would be applied to the facts and circumstances of the claimed area.

CONSIDERATION

17    The submissions on behalf of the applicant focused largely on the “new evidence” said to have been proposed to be adduced at the hearing of the seven claims if they had not been summarily dismissed, and the allied contention that the applicant in the hearing in the course of Risk had not had the opportunity to litigate the question as to whether his claimed native title group (described in the proposed grounds of appeal as the Danggalaba Land Holders Group) existed and according to its traditional laws and customs held native title in the claim areas at, and since, sovereignty.

18    Before turning to identify and consider the material relied upon by the applicant on these applications, it is convenient to determine one issue.

19    The proposed notice of appeal (grounds 1 and 2) asserts that a native title claim cannot be dismissed as an abuse of process by reason of the same or substantially the same issues having earlier been litigated and determined. That submission is contrary to the decision of the Full Court in Dale at [111]-[112], and to the observations of the High Court when refusing special leave to appeal from the decision in Dale. There the issue of the availability of “abuse of process” findings within native title considerations was specifically raised. The application for special leave to appeal was refused: [2011] HCA Trans 332. Kiefel J commented at 5 that “an abuse of process is an abuse of process in any proceeding” and Hayne J (on behalf of Crennan and Kiefel JJ) at 11 said:

There is, however, no reason to doubt [in claims under the NT Act] that principles of abuse of process can be engaged and it is well settled that an attempt to re-litigate an issue which has been resolved in earlier proceedings may constitute an abuse of process even though the earlier proceedings did not give rise to a res judicata or issue estoppel.

It appears also to be suggested in the proposed grounds of appeal that, alternatively, the usual tests to determine whether there is an abuse of process do not apply or are somehow qualified in relation to claims under the NT Act. That proposition was not put in argument on these applications, and so may be put aside. In any event, it was not a proposition adopted by the High Court in the decision just referred to.

20    The only material relied on by the applicant on these applications (save for that explaining why an appeal was not instituted within time) was the proposed notice of appeal, the affidavit of Dr Day of 30 August 2010 and his report dated November 2010 (both provided to the primary judge), and the applicant’s written submissions to the primary judge. The other affidavit of Dr Day was not referred to. It was also accepted that the applicant was not legally represented in the hearing leading to the Risk decision.

21    There is nothing in that material which indicates that the critical issues decided in Risk about the land and waters the subject of that decision are different from the critical issues which would need to be determined if the claims presently under consideration were heard and determined. The respective claim areas are of course a little different, as Risk considered areas within the urban areas of Darwin, whereas broadly speaking the present claim areas are in rural areas surrounding Darwin. But there is nothing to indicate that the identification of the Aboriginal peoples who, according to their traditional laws and customs, exercised rights and interests in relation to those areas were different. In particular, Dr Day does not suggest that.

22    At its highest, Dr Day suggests that since the decision in Risk, there may have become available from National Archives of Australia certain records relevant to the continuity of the connection of the Larrakia people to the land and waters in the urban and surrounding rural areas of Darwin which was not presented on their behalf at the hearing of those claims. He says that the applicant and other members of his group have consistently identified as Larrakia for decades. It may be observed that that was not a matter in issue in the course of the Risk proceedings; the applicant and his family were accepted by the Larrakia claim group as members of the Larrakia group. The nature of Dr Day’s proposed evidence (used before the primary judge to resist the strike out application) is conveniently encapsulated in [41] of his affidavit where he argues for a “re-appraisal of the Larrakia land claims”.

23    Dr Day’s affidavit then exposes the fact that his involvement with the Larrakia people extends back to 1971, including dealings with the Aboriginal Land Commissioners from time to time and the Kenbi Land Claim. He says the claim by William Risk and others as applicant for the Larrakia people could have been better presented, including by the use of his evidence. However, that was a forensic choice by those conducting that claim. He may or may not be right. But his affidavit, except in identifying possible further evidence to support the connection between the Larrakia people of today with the Larrakia people at sovereignty, does not support any more refined claim group over the subject land and waters. It does not suggest that the applicant (and his family) are other than part of the Larrakia people, or a separate and different claim group. It does not therefore support the applicant’s outstanding claims that native title over the subject land and waters in the name of a different and more confined claim group, excluding the wider Larrakia people, should succeed. In addition, I agree with the primary judge that it is not new evidence in any sense, but evidence which was available to be called by either the applicant or those conducting the claim on behalf of the Larrakia people in Risk.

24    The report of November 2010 attracts similar observations. It shows a long awareness of the extent to which the composition of the Larrakia people, and subgroups within the Larrakia people, was the matter of extensive consideration during the prolonged hearing of the Kenbi Land Claim. It argues for a more confined definition of the Larrakia people. It argues that the decision in Risk was erroneous. But, again apart from some arguably new evidence to support connection generally, it does not identify any new evidence not previously available which could not have been secured and adduced in the hearing of the Risk claim to establish (if it were the case) that the claimant group identified by the applicant as authorising him to bring these outstanding claims (or the claims in which he was the applicant and which have been brought to an end by the decisions in Risk, Risk FC and Quall) was and is the relevant group holding native title rights and interests at sovereignty and to the present time in the subject land and waters. That was the view reached by the primary judge at [80]-[82].

25    The primary decision at [72]-[79] discusses in detail Dr Day’s affidavits (as noted, there were two, but only one was referred to on the present application) and his report. His Honour concludes at [76]-[79] that the “new” material was on the material known to be available both by the applicant and by Dr Day from at least 2000. There was no satisfactory explanation as to why it had not been procured and adduced in evidence during the hearing leading up to the Risk decision.

26    In my view, on these applications, the applicant has not shown any arguable basis for showing that the conclusions of the primary judge about the status of and the significance of the “new” evidence presented to oppose the strike out applications was erroneous. I note in this regard that his Honour, at [83], indicated that he took the material in Dr Day’s affidavits and his report in the light most favourable to the applicant.

27    Having made those comments, it is convenient to revert to the particular proposed grounds of appeal, and the three general categories under which they are said to show arguable error. I have addressed grounds 1 and 2.

28    Grounds 3 and 4 relate to the balancing of justice and equity between the parties, as required by the assessment of the last two Stenhouse considerations by the primary judge, namely 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 an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

29    The primary judge at [85]-[86] considered those matters. His Honour recognised the balancing required at [85]:

the oppression and unfairness said to be occasioned to a party by the relitigation of an issue, and the prejudice and unfairness said to arise if a litigant is unable to submit a real and genuine controversy for determination on its merits.

30    He referred to his consideration in Quall at [118]-[122], of the same matters, and said they apply with even more force to the expanded or restructured Danggalaba Clan group that the applicant in these claims was pursuing. Having regard to the desirability for the finality of litigation, the promotion of public confidence, the just and efficient allocation of the Court’s resources and the balancing of justice between the parties, and the right of any person to present to the Court a real and genuine controversy that has not been determined on its merits, his Honour concluded that the applicant had already put forward as a real and genuine controversy the question whether the Danggalaba Clan or a variation of it was the relevant Aboriginal society at sovereignty, and his Honour did not consider on the material that there is still a real and genuine controversy in relation to the claim group as identified in these claims being the relevant Aboriginal society at sovereignty possessing rights and interests in Larrakia lands. That is based upon the material referred to above.

31    Moreover, as the primary judge found, the decision in Risk that the relevant Aboriginal society at sovereignty possessing rights and interests in the subject lands and waters was the Larrakia peoples, and the more confined claim group now asserted was the same, or at least a very similar claim group to that raised by the applicant in Risk; that claim had been rejected in Risk.

32    The primary judge was required to balance the interests of justice and has done so. There is no arguable error shown in the process by which his Honour reached his conclusion, or in the conclusion reached, on that general requirement.

33    Ground 5 asserts that the primary judge wrongly applied the reasoning of McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286 (Rogers). As noted above, the circumstances in which abuse of process may arise are varied and not limited to any fixed categories: see Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 at [89]. The High Court referred to the conclusions of McHugh J in Rogers that:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.

34    The primary judge at [39] observed that the present applications fell into both the second and third of two categories. His Honour then cautioned against finding an abuse of process, except in the clearest of cases, and after considering the Stenhouse factors, he concluded that these claims fell into that category. His Honour is not shown, even arguably, to have misunderstood or to have misapplied the law.

35    Ground 6 is simply an assertion of error in reaching the ultimate conclusion, but it does not identify any arguable error. It must depend on other grounds.

36    Grounds 7 to 12 under the heading “Abuse of Process” and 15 to 16 under the heading “Every Opportunity to Litigate” express in various ways that the primary judge was wrong to conclude that the fundamental issues as determined in Risk, Risk FC and Quall are the same as those raised in the current proceedings.

37    In my view, for the reasons given, no arguable error of the character asserted has been shown. That becomes more apparent by further analysis of the primary decision.

38    At [43] of the primary reasons the three issues that were considered in Risk, and again in Quall, were identified:

(a)    the Larrakia peoples comprised the Aboriginal society at sovereignty and 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.

39    At [53] his Honour then set out the fundamental underlying issue in these proceedings as being the identification of the relevant Aboriginal society at sovereignty possessing native title rights and interests in relation to the land and waters in the Darwin area. This, he found, is in substance very similar, if not the same, as the issues considered in Risk (at [61]). The applicant has not shown why his Honour was arguably wrong in coming to this conclusion. When questioned about this in the course of oral submissions, the applicant did not identify issues that were different, but stated that the way in which the applicant has been able to present his case has been compromised and that there is new evidence that impacts on the consideration of these issues. These considerations are raised as separate grounds of appeal, and are separately addressed.

40    Grounds 13, 14 and 17 challenge the conclusion of the primary judge that the applicant had ample opportunity in Risk to litigate the issues he now wishes to litigate. In oral submissions, counsel for the applicant pointed out that the applicant had not been legally represented in the Risk hearing and that Dr Day was not invited to give evidence by any of the applicants. At [54] and [55] of the primary reasons, his Honour observed that the applicant was a party to the consolidated Risk proceedings, gave evidence, tendered documents, cross-examined witnesses and made submissions; he pursued an appeal to the Full Court of this Court and then sought special leave to appeal to the High Court. In my view, the applicant has not shown any arguable error in the conclusion that he had the opportunity to ventilate the issues he now raises in Risk. There is no evidence suggesting how his opportunity to present his case was obstructed or impaired. It is not the case that, because he was unrepresented, necessarily that opportunity was denied him.

41    Grounds 18, 21, 24, 25 and 26 under the heading “Factual Matrix, Expert Evidence & Fresh Evidence” address the issue of Dr Day’s expert evidence. This was the main thrust of the applicant’s oral submissions. The applicant submitted that Dr Day provided new evidential material, and that Dr Day was not invited to give evidence in earlier proceedings by the Risk applicants or by the applicant, and that Dr Day’s evidence differed considerably with that of evidence presented at that hearing. The applicant submits that prior to the release of Dr Day’s report in November 2010, he did not have any other expert evidence in which he could rely upon to support his claims, and that this new evidence calls into question the findings as to the construction of the of the Larrakia native title claim group. In the affidavit Dr Day describes how it was not until 2008 that the previously prepared genealogy of the Larrakia people (the 1973 genealogy) was sighted again, after a digital copy was requested from National Archives of Australia. He also referred to other archival material that has recently been made available.

42    The primary judge considered this issue at [72]-[84]. At [76] he stated that he did not consider it is “fresh evidence in the sense that it was not previously known or encountered” and that “[i]n [Dr Day’s] first affidavit, Dr Day makes it plain that both the existence and significance of the 1973 genealogy were known to, and discussed by, Mr Quall and himself since approximately 2000.” The genealogy apparently became available from the National Archives of Australia from 2004. His Honour noted that no satisfactory explanation had been given as to why the 1973 genealogy was not obtained after 2004. For the reasons already given, the applicant has not shown why the approach of the primary judge is arguably inaccurate or inappropriate.

43    Further, his Honour did not accept that the evidence had the significance that the applicant ascribed to it. Taken at its best, the evidence does not go to the existence of a separate set of laws and customs of the Danggalaba clan.

44    His Honour stated at [83] that:

… even if the 1973 genealogy addressed the difficulties the Quall applicants encountered with the composition and structure of the Danggalaba Clan, that will not overcome the obvious deficiency in the evidence going to show that the Danggalaba Clan was the relevant Aboriginal society at sovereignty possessing native title rights and interests in relation to the land and waters in the Darwin area.

The applicant did not address this issue in either written or oral submissions, but for the reasons given, there is no arguable error in that conclusion.

45    Grounds 19 and 20 are not expressed with precision. Ground 19 suggests that his Honour erred in finding that the applicant was required to produce new evidence to show that the findings in Risk did not apply in order to establish native title in the claim areas. The applicant did not refer to any point in the primary reasons where such a finding was made. The closest reference appears to be [82] where his Honour states that the 1973 genealogy ‘will not overcome the obvious deficiency in the evidence going to show that the Danggalaba Clan was the relevant Aboriginal society at sovereignty’. This goes to the significance of Dr Day’s evidence, as described above, as ‘fresh’ evidence, for the purposes of balancing the Stenhouse considerations. There is no arguable error in his Honour’s assessment of Dr Day’s material.

46    Ground 20 concerns the proper weight given as to the purpose and application of the NT Act, as it applies to native title claimants. The applicant did not identify any passage in the primary reasons to demonstrate arguable error, nor any provisions in the NT Act which would support any such alleged error.

47    Grounds 22 and 23 refer to the consideration by the primary judge of Dale FC and the similarities between the two cases as his Honour observed them. The applicant did not expand upon these grounds during the course of oral submissions. It is not shown that his Honour’s references to Dale, in particular about the circumstances in which there may be an abuse of process where there has already been litigated the existence or otherwise of a claimed native title holding group, and a subsequent attempt to relitigate that question, involved any arguable error on his part.

conclusion

48    In my view, the proposed appeals have no prospect of success. Accordingly, the applications for an extension of time to appeal must be refused.

49    In reaching that conclusion, I have considered all the material presented on behalf of the applicant through counsel. That material includes the thorough and carefully written submissions put to the primary judge. So far as I can determine, counsel put on behalf of the applicant all that could have been argued on the material available. Ultimately, it appears that the issues in the current proceedings and in the Risk proceeding (including other claims by the applicant) are the same, and the applicant really seeks to get a different answer to those issues in circumstances where it is not appropriate to allow him to do so for the reasons in the primary decision.

Associate:

Dated:    27 June 2012