FEDERAL COURT OF AUSTRALIA

Velickovic v State of Western Australia [2012] FCA 782

FEDERAL COURT OF AUSTRALIA

Velickovic v State of Western Australia [2012] FCA 782

CORRIGENDUM

1.    In para 12, the word ‘are’ before ‘described’ be replaced with ‘as’ and the paragraph amended to read ‘A brief summary of the supposed claim group as described by Widji at various times (including the presently foreshadowed group) is as follows: …’

2.    In para 13, the word ‘on’ before ‘lodged’ be moved to after ‘lodged’ and the paragraph amended to read ‘The Original Widji Claim, lodged on 12 June 1998, was lodged on behalf of ‘the Widji People including Leonne Dale Velickovic’.

3.    In para 24, reference to ‘Mr Miler’ be amended to read ‘Mr Milder’.

4.    In para 26, the word ‘practical’ is amended to read ‘practicable’.

Associate:

Dated:    20 August 2012

THE COURT ORDERS THAT:

1.    The application by the Goldfields Land and Sea Council Aboriginal Corporation filed 31 January 2012 for summary dismissal of the application is allowed.

2.    The application be dismissed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This is an interlocutory application by a respondent for dismissal of the primary application pursuant to s 84C(1) of the Native Title Act 1993 (Cth) (the NTA) on the basis of the applicant’s failure to comply with s 61 NTA concerning the authorisation of the application.

2    The interlocutory application is brought by the Goldfields Land and Sea Council Aboriginal Corporation (GLSC). GLSC is recognised as the native title representative body for the Western Australian Goldfields regions under s 203AD NTA. In that capacity it represents the applicant in the native title application John Walter Graham and Others on behalf of the Ngadju People v State of Western Australia and Others (WAD 6020 of 1998) (the Ngadju Claim). It also represents the applicant in Cyril Barnes and Others on behalf of the Central East Goldfields Peoples v State of Western Australia and Others (WAD 73 of 1998) (the Central East Claim). It is a respondent to the present proceeding known as the Widji Claim.

3    The Widji Claim overlaps four other claims, namely, the Ngadju Claim, the Central East Claim, the claim by Brian Champion on behalf of Kalamaia Kabu(d)n v Western Australia (WAD 6216 of 1998) (the Kalamaia Kabu(d)n claim) and Marjorie May Strickland and Others v State of Western Australia (WAD 301 of 2010) (the Strickland/Nudding claim).

4    GLSC was joined as a respondent to the Widji Claim on 17 May 2011 and, following a deal of correspondence, on 31 January 2012 filed the interlocutory application seeking dismissal on the grounds that the claim is not authorised within the meaning of the NTA. The application was initially supported by an affidavit of M/s Sophie Kilpatrick, solicitor, sworn on 30 January 2012.

5    Section 251B NTA provides as follows:

251B    Authorising the making of applications

For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if:

(a)    where there is a process of decision making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind—the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or

(b)    where there is no such process—the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.

6    Widji now accepts that native title in the Widji Claim area is held by a differently described and broader group of persons than those described in the current Amended Widji Claim filed in December 1999. Native title is now said to be held by the ‘descendents of Kaddee and Kaddee’s mother’s ancestors’ rather than just the persons contained in the original or amended lists of claim groups.

7    In a brief affidavit sworn by Dr Stephen Johnson, an anthropologist engaged by Widji, the following views are expressed (at paras 8-11 inclusive):

8.    In my opinion, based on my research to date, the members of the Widji People are:

(a)    the biological descendents of Kaddee who have elected to trace descent through the forebears of Dorothy Donaldson, as illustrated in the genealogical diagram which is [attached to] this affidavit. It is necessary to refer to the complete genealogies in my possession to identify all the other members of the Widji People. I have not attached the complete genealogies to this affidavit as it runs to approximately 40 pages; and

(b)    those persons adopted by the persons referred to in (a), in accordance with Widji traditional laws and customs.

9    Adoption is an accepted feature of Widji traditional laws and customs, with adopted children enjoying equal status with biological children in all matters of descent and the inheritance of rights and interests.

10.    In my opinion, based on my research to date concerning the traditional decision-making process of the Widji People, those persons acknowledged by the Widji People as elders of the Widji People (“Widji elders”) are entitled to made decisions on behalf of the Widji People, including a decision to authorise a person or persons to make or amend a native title claim, and to deal with matters arising in relation to it.

10.(sic)    In my opinion, based on my research to date, the Widji elders are the following persons:

(a)    Dorothy Dimer nee Donaldson;

(b)    Betty Dimer nee Logan;

(c)    Norma Rachel Dimer nee Velickovic

(d)    Henry Richard (Ricky) Dimer;

(e)    Maxine Patricia Dimer;

(f)    Allison Dorothy Dimer;

(g)    Eva May Dimer (deceased);

(h)    Wyvern Jacob Dimer;

(i)    Warren John Dimer;

(j)    Ollan (Sam) Dimer;

(k)    Christopher Frederick Dimer;

(l)    Kaye Florence (Katie) Dimer;

(m)    Anita Mary (Annie) Dimer;

11.    In my opinion, based on my research to date, the decision-making process of the Widji elders is by consensus, with the opinions of Widji elders acknowledged to have a deeper understanding of Widji traditional law and customs often carrying more weight in the decision-making process. (emphasis added)

8    However, even with the new evidence of Dr Johnson, GLSC seeks dismissal as:

(a)    The Widji Claim has not been properly authorised under s 251B NTA.

(b)    The Widji Claim is therefore not compliant with s 61 NTA.

(c)    There is no clear indication that all the descendents of Kaddee and Kaddee’s mother’s ancestors are included in the Amended Widji Claim.

(d)    The members of the Widji claim group as listed at attachment A of the Amended Widji Claim and annexure A of the Points of Claim filed in October 2007 comprise a different list and different persons.

(e)    All the members of the Widji claim group as listed at attachment A of the Amended Widji Claim and annexure A of the Points of Claim are members of the Ngadju Claim group.

(f)    The Widji elders are said to acknowledge who the members of the native title claim group are and those members must apply and are granted membership of the Widji Association and are referred to as the Widji People. The Widji application does not identify who the Widji elders are nor is the decision-making process explained as traditional or otherwise under s 251B(a) or (b) NTA.

(g)    The Widji claim group cannot be clearly identified pursuant to s 61(4) NTA which provides:

Applications authorised by persons

(4)    A native title determination application, or a compensation application, that persons in a native title claim group or a compensation claim group authorise the applicant to make must:

(a)    name the persons; or

(b)    otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons.

(h)    The Widji Claim is made on behalf of a subgroup or some only of the persons descended from Kaddee who are said to hold common or group rights and interests comprising the particular native title claimed.

9    In addition to Dr Johnson’s evidence, the applicant’s solicitor, Mr Morris Milder, also filed an affidavit shortly prior to the proceeding showing steps which the Widji applicant intends to take within a period of ten weeks to reauthorise and further amend the Widji application so that it complies with s 61 NTA.

10    Widji, therefore, opposes the interlocutory application to dismiss and seeks orders which would allow it time to authorise amendments to the application and to file a minute of proposed further amended native title determination application.

Objections and rulings

11    There were several objections to affidavit material on which I ruled in part. The reasons for those rulings are set out in annexure A to these reasons.

MODIFICATIONS IN CLAIM GROUP DESCRIPTION TO DATE

12    A brief summary of the supposed claim group are described by Widji at various times (including the presently foreshadowed group) is as follows:

13    The Original Widji Claim, lodged on 12 June 1998, was on lodged behalf of ‘the Widji People including Leonne Dale Velickovic’.

14    The Amended Widji Claim was filed on 17 December 1999. The claim group description reads:

This claim is brought on behalf of the members of the Widji People. The said members are listed on a register of members of the said People, which list is identical with the list of members of the Widji Association. The names of the people on the current list of members of the Widji native title claimant group are in Attachment A. The claim is also brought on behalf of the biological descendants of those people and on behalf of any other people who may be acknowledged by the Widji elders as having traditional Widji claim group association with the claim area which gives rise to native title rights and interests and who apply for and are granted membership of the Widji Association. They are referred to as the Widgie People.

15    Attachment A to the Amended Widji Claim contains a list of 69 names while attachment B purports to set to set out the ‘descendants of Kaddee’. As the GLSC points out, attachment B refers to individuals who are not listed in either attachment A of the Amended Widji Claim or annexure A of the Points of Claim.

16    The Widji applicant’s Points of Claim was filed 31 October 2007 and reads as follows:

The Widji People Applicant Group comprises a group by reference to their descent relationship to the Ancestor Kaddee and Kaddee’s mother’s ancestors.

17    Annexure A to the Points of Claim purports to list the ‘adult persons in the Applicant group’ and contains some 30 names.

18    The current proposed description of the claim group is found in para 8 of Dr Johnson’s affidavit, sworn 11 May 2012:

In my opinion, based on my research to date, the members of the Widji People are:

(a)    the biological descendants of Kaddee who have elected to trace decent through the forebears of Dorothy Donaldson as illustrated in the genealogical diagram which is SPJ2 of this affidavit. It is necessary to refer to the complete genealogies in my possession to identify all the other members of the Widji People. I have not attached the complete genealogies to this affidavit as it runs to approximately 40 pages; and

(b)    those persons adopted by the persons referred to in (a), in accordance with traditional laws and customs.’

LACK OF AUTHORISATION – CAN IT BE CURED?

19    Until shortly prior to the hearing of the application the only evidence was the affidavit of M/s Kilpatrick. Widji did not produce any documents evidencing authorisation under the NTA in response to a notice to produce served by the GLSC in March.

20    It is now not in contention that the applicant has not been authorised under s 251B NTA. It is common ground, for the purposes of s 190C(3) NTA, that all the people listed as part of the Widji claim group are also members of the Ngadju Claim. The GLSC submits that the amended Widji claim group description is different in substance from the original Form 1. The Widji Points of Claim includes all the descendents of Kaddee. Yet the amended Widji claim group does not include all the people listed in attachment B to the Points of Claim despite the fact that they are all descendents of Kaddee. Section 190C NTA provides that a condition for registration is that the Registrar must be satisfied that no person included in the native title claim group for the application (the current application) was a member of the native title claim group for any previous application if (a) the previous application covered the whole or part of the area covered by the current application and (b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made and (c) the entry was made, or not removed, as a result of consideration of the previous application under s 190A NTA. The Widji Claim was made after the Ngadju Claim. The Widji applicant relies upon the provisions of s 84C(1) NTA and submits that the main application may still be amended even after a strike out application is filed.

21    An adjournment such as that sought by Widji might often be granted. Indeed I required the parties to mediate to discuss that prospect. No agreement was reached. For the reasons set out below (from [30] onwards) I accept the submissions of GLSC and the State that such adjournment would have no utility. The current absence of authorisation is not capable of being cured within the requirements of the NTA.

22    Further, the matters that immediately follow would militate against exercising a discretion in favour of Widji to grant the adjournment.

Progress to date

23    The progress in this claim has been very slow. It is not close to being finally resolved. No lay evidence or expert evidence has been filed with the exception of the very brief affidavit of consultant anthropologist Dr Johnson filed shortly prior to the strike out application. The claim has not progressed in any meaningful way. There has been a history of non-compliance with various orders over the last twelve months. This position clashes with the objectives set out in s 37M(1) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and the obligations imposed on the party by s 37N(1) to conduct civil proceedings in a manner consistent with the objectives. The position is somewhat comparable to Sambo v State of Western Australia (No 2) [2010] FCA 927 where I noted (at [47]-[48]):

47    The purpose of a native title determination application is to seek determination on native title. If an application reaches a condition where it is unlikely to ever achieve that purpose, as this one has, then it should be dismissed and not used for purposes pertaining to the independent financial affairs of various persons or groups.

48    This is not a situation akin to the one outlined by way of example in the Explanatory Memorandum to the NTA, which suggests that an application should not be dismissed if, despite being unregistered, the claim is close to reaching resolution (para 4.331).

24    In relation to the authorisation process, in particular, on 25 November 2011 the Widji applicant was put on notice that the GLSC was seeking particulars to ascertain whether the Widji applicant had been authorised. On 2 December 2011, Mr Milder wrote to the GLSC indicating that GLSC’s contention that the Widji proceedings were ‘affected by a possible defect in authorisation’ was ‘untenable’. On 17 February 2012, Mr Miler wrote to the GLSC again indicating that the interlocutory application was ‘not tenable’ and that the affidavit sworn by M/s Kilpatrick was ‘disingenuous’ and if the GLSC interlocutory application was unsuccessful ‘the Widji [would seek] costs against the GLSC on an indemnity or alternatively party/party basis pursuant to s 85A(2) of the NTA’.

25    This was followed by an indication at a directions hearing on 15 March 2012 by counsel for the GLSC that it would serve on the Widji applicant a notice to produce. Strong opposition to that process was again expressed by Mr Milder. The notice was served on 18 March 2012. On 29 March 2012, Mr Milder wrote to GLSC acknowledging receipt of GLSC’s letter and attaching a letter from The Alfred Hospital explaining that he had been hospitalised for a medical condition for 12 days and would need up to a month to recover to full health. On 4 April 2012, GLSC sought an order for production. On 16 April 2012, Mr Milder wrote to the GLSC indicating that ‘your client’s application is misconceived and is doomed to fail’. On 18 April 2012, Mr Milder wrote to the GLSC indicating that the notice to produce filed by the GLSC was invalid and notified the GLSC that his client did not hold most of the documents requested including minutes of authorisation meetings and would not provide the GLSC with a current membership list of the Widji Association. At a hearing on 18 April 2012, counsel for the Widji applicant indicated that none of the documents sought by the GLSC in the notice to produce were able to be produced by Widji. There was no acceptance on that occasion or in the preceding occasions that a reauthorisation meeting of the Widji claim group was necessary.

26    It was not until 1 May 2012, five months after the request for particulars by GLSC, that Mr Milder indicated to the GLSC that Widji would be reauthorising the application and filing a minute of proposed further amended native title determination application as soon as practical. To date it has not yet been filed.

27    In my view, this history demonstrates scant regard for the purpose and objects of the NTA and, with respect, an unhelpful attitude to the problems with lack of authorisation which were apparently recognised for a significant time. Consequences to others as a result have been significant.

INTERPRETATION OF THE PROVISIONS

28    Relevantly, s 61 NTA sets out the categories of applications that may be made under Div 1 of Pt 3 NTA and the persons who may make them. It identifies persons who may make an application for a determination of native title in subs (1) as being a person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group.

29    By subs (4), it is provided that persons in the native title claim group who authorised the application must be named or otherwise described sufficiently clearly in the application so that it can be ascertained whether any particular person is one of those persons.

30    Section 251B NTA above (at [5]) identifies the potential processes by which a person or persons authorised by a claim group to make the application may deal with the matters arising in relation to it.

31    It is necessary to treat any application under s 84C(1) NTA in the same cautious manner as applications under the previous O 20 r 2 of the former Federal Court Rules or now under r 26.01 of the Federal Court Rules 2011 (FCR) even though the 2011 Rule has also replicated the provision under s 31A of the Federal Court Act which ‘lowers the bar’ for strike outs. Despite availability of the lower test (as in Brown v State of South Australia [2009] FCA 206), I have approached this application on the basis that the Court’s power should be exercised only where the claim is untenable and on the version of evidence favourable to the respondents to the strike out application. A clear case must be made out even though extensive argument may be necessary to adduce evidence to establish the futility of a case. The Widji applicant relies upon what was said by Lander J, with whom North and Dowsett JJ agreed, in Williams v Grant [2004] FCAFC 178 (at [48], [49] and [57]) in relation to s 84C NTA as follows:

48    Section 84C only applies to applications which do not comply with ss 61, 61A and 62. However, an application under s 84C, if successful, has the very serious consequence that the native title application is struck out. Such a result is akin to a court proceeding being summarily dismissed, or at least dismissed before any hearing on the merits. No court proceeding is summarily dismissed except in a very clear case: Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129.

49    Applications for native title are brought by representatives of the native title claim group. The dismissal of an application because, for example, the applicant has not been authorised means the dismissal of the native title claim group’s claim. The repercussions, therefore, are far reaching. I see no reason why an application to strike out a native title claim under s 84C should be treated any differently to any other application to dismiss a claim summarily. The power should be exercised sparingly and with caution, and only when the Court is satisfied that the moving party has made out a clear case that the applicant has not complied with the relevant section and cannot, by amending the application, comply. Section 84C assumes that a party might respond to a strike out application by amending the claim to comply with the requirements of the Act. A claim can be amended without obtaining leave.

…

57    In some cases it will be appropriate to determine the application at the same time as it is considered. Where the application to strike out is obviously without merit then it may be dismissed immediately. Where the application is clearly a case that calls for relief under the section, recognising that relief will be provided sparingly as I have described it, then an order will be made dismissing the main application. In many cases, an applicant faced with an application under s 84C will apply to amend the application to cure an identified deficiency. For example, where an application is based upon an applicant’s failure to comply with s 62 in supplying the details under that section, an applicant might respond by amending the application to make it comply. In those cases, the Court will not be called upon to determine the s 84C application.

32    Section 84C(1) NTA has been considered on a number of occasions. The relevant principles are well established. They have been set out helpfully in Brown by Besanko J (particularly at [10]-[20]) where his Honour said:

10    The first respondent’s notice of motion seeks to engage s 84C(1) of the NTA. That subsection provides that this Court may strike out an application which does not comply with one or all of s 61, s 61A or s 62 of the NTA. In the alternative, the first respondent’s notice of motion seeks to engage s 31A of the Federal Court of Australia Act 1976 (Cth) (“FCAA”) which provides that this Court may dismiss an application on the basis that it has no reasonable prospect of success.

11    The test to be applied on an application under s 84C(1) of the NTA is clear. Finn J stated the relevant principles in McKenzie v South Australia (2005) 214 ALR 214 (“McKenzie”) at 221 [26]:

Beyond this provision [that is, s 84C(1)] this court retains its power of summary dismissal under O 20 r 2 of the Federal Court Rules. It is now well accepted that applications under s 84C(1) should be approached in the same cautious way as applications under O 20 r 2: see Bodney v Bropho [2004] FCAFC 226…at [51]–[52]. The court’s powers should be exercised only where the claim as expressed is untenable and upon the version of the evidence favourable to the respondents to the strike out: Landers v South Australia (2003) 128 FCR 495 at [7]. A clear case has to be made out: Williams v Grant [2004] FCAFC 178…at [48]–[49]. Nonetheless, it may require extensive argument and may be necessary to adduce evidence to establish the futility of a case: General Steel Industries Inc v Commission for Railways (NSW) (1964) 112 CLR 125 at 130; Bodney v Bropho at [51]–[52].

12    There is one qualification to these statements and that is that one now has regard to s 31A of the FCAA rather than O 20 r 2 of the Federal Court Rules. In this case, I have reached the conclusion, having regard to the principles applicable to s 84C(1) of the NTA, that the amended application should be struck out under that section. In the circumstances, it is unnecessary to consider the possible application of s 31A of the FCAA to the circumstances of the case.

13    The first respondent contends on its notice of motion that the NTA allows for an application to be made by a native title claim group, but not by a sub-group. It contends that the Brown Family Group, as defined in the amended application, is not a native title claim group but, rather, it is a sub-group and therefore the amended application is incompetent. The first respondent further contends, as an independent basis for the orders sought in its notice of motion, that a native title determination application is competent only if the applicant is authorised by all persons in a native title claim group and all the persons in the Brown Family Group have not authorised the applicant to make the application and to deal with matters arising in relation to it. The first respondent submits that it follows that the applicant’s amended application is incompetent. The second respondent supports the first respondent’s contentions.

…

19    A native title determination application does not comply with s 61 of the NTA if it is clearly established that it is not made by a native title claim group. A native title claim group is a group consisting of all the persons who, according to their traditional laws and customs, had the common or group rights or interests comprising the particular native title claimed. These propositions follow from the provisions of ss 61(1) and (4), 251B and 253 of the NTA and have been stated in the cases: Risk v National Native Title Tribunal [2000] FCA 1589 at [60]-[61] per O’Loughlin J; Tilmouth v Northern Territory of Australia (2001) 109 FCR 240 (“Tilmouth”) at 241-242 [4] per O’Loughlin J; Landers v State of South Australia (2003) 128 FCR 495 (“Landers”) at 504 [33] per Mansfield J; Dieri People v State of South Australia (2003) 127 FCR 364 (“Dieri People”) at 377-378 [55]-[56] per Mansfield J; McKenzie at 223 [41] per Finn J; Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 (“Hillig”) at [60] per Bennett J; Harrington-Smith (on behalf of the Wongatha People) v Western Australia (No 9) (2007) 238 ALR 1 at 230-232 [1206]-[1217] per Lindgren J; Reid v State of South Australia [2007] FCA 1479 (“Reid”) at [27] per Finn J; Kite v State of South Australia [2007] FCA 1662 (“Kite”) at [21]-[22] per Finn J.

20    The propositions have been applied most commonly in circumstances where it is clear that the claimant group is a sub-group or sub-set or part of a native title claim group. Cases such as Tilmouth, Landers, Dieri People, McKenzie and Reid are all cases in which it was clear that the claim group was not a native title claim group. The cases also make it clear that caution needs to be exercised before concluding on a strike-out application that a claim group is a sub-group, sub-set or part of a native title claim group: Colbung v The State of Western Australia [2003] FCA 774 at [23]-[26] per Finn J; McKenzie at 223 [41] per Finn J; Hillig at [60] per Bennett J; Reid at [28] per Finn J; and Kite at [22] per Finn J. For example, it may be that a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area and that sub-group may itself constitute a native title claim group: Hillig at [60] per Bennett J (see also the obiter observations of Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [41]; Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) [3.130].

33    In Bodney v Bropho (2004) 140 FCR 77 Stone J (with whom Spender and Branson JJ relevantly agreed) discussed the interaction of the then relatively new s 61 process with the striking out provisions under s 84C NTA, emphasising amongst other matters, the well accepted high level of judicial satisfaction required to strike out a claim. But as with this case the real question in Bodney was the possibility of amendment to cure the deficiency. In discussing the first general area her Honour said (at [47] and [51]):

47    Native title determination applications deal with the concept of customary law and in most cases are made on behalf of a number of people. It is not surprising therefore that they generally involve more than usual practical and legal difficulties including, not uncommonly, disputes between competing claim groups or within the claim group. There can be considerable difficulty in resolving those issues. The difficulties are compounded if there is uncertainty about who is claiming native title in the land that is the subject of the application or if there are multiple claimants asserting essentially identical interests. To some extent, s 61 of the old Act anticipated these problems and attempted to address them by requiring the applicant to describe or otherwise identify the persons with whom he or she claimed to hold native title. It did not, however, resolve the problems.

…

51    It follows that, as with any strike-out application, an application under s 84C should be approached with caution and should be allowed only where a clear case for summary dismissal has been made; Williams v Grant [2004] FCAFC 178 (‘Williams v Grant’) at [48]-[49]. However, as Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, while a litigant must not be deprived improperly of the opportunity for trial, summary dismissal is not reserved for cases where argument is not necessary to establish the futility of the case:

‘Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.’

34    As is evident from Brown (at [19]), a native title determination application does not comply with s 61 NTA if it is clearly established that is not made by a native title claim group consisting of all the persons who according to their traditional laws and customs, have common or group rights or interests comprising the particular native title claimed. A subset of part of ‘what truly constitutes’ a native title group cannot itself be a claimant group for the purposes of s 61 (see for example Reid v State of South Australia [2007] FCA 1479) but equally caution should be applied in readily concluding that an alleged group is only a subgroup or part of a group for s 84 purposes as noted by O’Loughlin J in Risk v National Native Title Tribunal [2000] FCA 1589 (at [60]-[61]).

APPLICATION OF THE PRINCIPLES – SHOULD ADJOURNMENT BE PERMITTED?

35    I am not satisfied that an adjournment can cure the difficulties as to absence of authorisation faced by the Widji applicant.

36    The central difficulty is that convening a meeting cannot cure the problem. As Mr Ranson for the first respondent (the State) noted in supporting the strike out application, there are three difficulties.

37    The first is that what is now proposed is that a different set of people or a different claim group is going to reauthorise the claim made on behalf of an earlier set of people. A different set of people cannot reauthorise a claim brought on behalf of another set of people. What is required is a fresh claim. While the NTA does make provision for amendment of claims which includes an amendment to the claim group or to the applicant, the difficulty is in a different group of people seeking to amend a claim originally brought on behalf of another group. The NTA provides for amendment of a claim and amongst other things to the claim group itself. There could, in theory, be many reasons for such amendment – a particular person may have been overlooked, or another may have died or someone may have been mistakenly included. There might be a description of a group which requires better specificity than was originally used. But in this case when there is no evidence of any authorisation at all and when it is accepted that there was never any proper authorisation the position is different. There can not be some process of ratification or re-authorisation to ratify or confirm an authorisation which never occurred at all. There can not be as Widji describe it a ‘re-authorisation’ when the group said to be doing the authorising is differently constituted from the group who supposedly authorised the representative applicants in the first place (and there is no evidence of that original authorisation process, traditional or otherwise, in any case).

38    The second additional difficulty with the reauthorisation proposed by Widji is that it will not solve the ‘subgroup’ problem. The claim would still be brought on behalf of a subgroup of all the people said to hold native title. As indicated in Williams and Risk, that is not possible.

39    Thirdly, what is now suggested to be the native title claim group is still quite uncertain: Quall v Risk [2001] FCA 378. Even if the claim were to be reauthorised or amended, to insert the description of what is now said to be the native title claim group, the Court would never be in a position to be satisfied that the claim was authorised by all of the persons who may hold native title because it would not be possible to identify with any certainty who they were. The claim group description in the Points of Claim at annexure A is said to contain a list of Widji claim group adults who are descended from Kaddee and Kaddee’s mother but it does not include the claim group members’ parents and grandparents who are also descendents of Kaddee and who are said to be Widji elders who make decisions about who is to be included in the native title claim group. Those Widji elders are described at para 10 of Dr Johnson’s affidavit but not the list of persons who comprise the claim group. The Widji applicant has not, with sufficient clarity, identified the claim group description if a new authorisation meeting to ‘reauthorise’ the Widji applicant is to be called.

40    Despite months of opportunity, no suitable explanation has been given as to why the claim group description has changed between the Original Claim, the Amended Claim, the Points of Claim and now Dr Johnson’s affidavit. The list of all the persons listed in attachment A of the Widji Claim and annexure A of the Points of Claim are different. The Widji applicant has indicated in correspondence that elders will preside over choices as to whether or not persons will be members of the claim group. However, the elders who make the decisions about the Widji claim group and are descendents of Kaddee and Kaddee’s mother are not included in the claim group description in annexure A but, rather, are identified at attachment B of the Points of Claim. Those elders are not included in the list of claim group members in attachment A of the Widji Claim either. Thirty-eight people are no longer listed as claim group members despite still being descended from Kaddee and listed in attachment B to the Points of Claim. This highlights the lack of clarity found in the native title claim group description and how the defect is impossible to cure. The claim group is not defined in a way that would enable the Court to allow an adjournment to enable a specifically identified group the opportunity to authorise the claim. Although there is evidence from Mr Milder as to the steps which would be taken to convene another meeting (amongst other steps), there is no indication as to who the claim group will comprise and what the decision-making process will be under s 251B NTA now that the reauthorisation process has been accepted as being necessary.

41    In the meantime, the prejudice being suffered by others is real. The GLSC as the representative body for the Goldfields area represents two claims that are overlapped by the Widji Claim. The progress of those claims is impeded by the Widji Claim and the cost of litigation in relation to the Widji Claim has been exacerbated by the lack of cooperation evident from the exchanges discussed above.

42    From the other point of view, if the claim is struck out, the Widji applicant contends that it intends to call an authorisation meeting in any event. If authorisation proceeds, it will be possible for a new native title claim to be lodged after authorisation is properly given.

43    It is true that the Widji applicant will lose future act money to which it is presently entitled by reason of the registration of its claim. As to further prejudice suffered by the Widji applicant, para 10 of Mr Milder’s affidavit deposes to a significant number of mediations being conducted by the National Native Title Tribunal and a number of draft agreements being conducted with grantee parties in relation to numerous mining tenement applications. Further notices have been issued under s 29 NTA and further negotiations are on foot which, of course, will be fruitless if the application is struck out.

44    Those matters must be taken into account. But given the lack of utility in this particular case of adjournment so as to permit amendment; given the errors, delay and lack of cooperation of Widji; and the prejudice to much broader based groups who have acted entirely appropriately, the prejudice to Widji must be a subordinate consideration to those factors.

CONCLUSION

45    For the foregoing reasons I will allow the GLSC motion. The Widji Claim will be dismissed. The following orders will be made:

1.    The application by the Goldfields Land and Sea Council Aboriginal Corporation filed 31 January 2012 for summary dismissal of the application is allowed.

2.    The application be dismissed.

Associate:

Dated:    24 July 2012

ANNEXURE A

Objection was taken by Widji to para 19 and para 20 of M/s Kilpatrick’s affidavit, sworn on 30 January 2012 which are in the following terms:

19.    I know, on the basis of being the solicitor on the record for the Ngadju Application for 5 years, and being familiar with the Ngadju claimant families and inspecting the Ngadju files and genealogies held by GLSC, that all of the people listed in Attachment A to the amended application (SK3) and [1(a)] of the Applicant’s Points of Claim (SK6) (as contained in the family tree at Attachment B to the Applicants’ Points of Claim (SK6)), except Craig Jennings, are the biological descendants of the Ngadju claim group apical ancestor Belang.

20.    On or about 7 December 2011, Mrs Betty Logan, a Ngadju claimant who is included in the family tree at Attachment B to the Applicant’s Points of Claim (SK6), told me that Craig Jennings was adopted according to traditional law and custom by her sister Norma Dimer, a Ngadju claimant, also included in the family tree at Attachment B to the Applicant’s Points of Claim (SK6). Consequently, the members of the Widji native title claim group as described in Attachment B to the amended application and the Annexure A to the Applicant’s Points of Claim are members of the Ngadju claim group. A copy of a portion of the Ngadju Form 1 application Schedule A is annexed hereto and marked SK7. A copy of the genealogy of apical ancestor Belang filed in the Ngadju Application is annexed hereto and marked SK8. (emphasis added)

The objection was on the basis of, in relation to para 19, opinion evidence and submission and, in relation to para 20, hearsay and submission.

Given that this was an interlocutory application albeit for judgment, the content of those paragraphs was admissible. The evidence was given on information and belief.

Objection was also taken to paras 5-8 of the M/s Kilpatrick’s third affidavit, sworn on 15 May 2012, which are in the following terms:

5.    ON 14 October 2009, the GLSC requested the National Native Title Tribunal (NNTT) to commence mediation between overlapping claims [Ngadju Claim] and [Kalamaia Kabu(d)n claim]. The area of overlap is delineated in a map at annexure SK1 of [M/s Kilpatrick’s] First Affidavit.

6.    Following a mediation conference on 30 October 2009, at the request of the Ngadju Applicant, Kalamaia Kabu(d)n Applicant and the GLSC, the NNTT sought to ascertain whether Widji Applicant wished to participate in this mediation process. Ultimately, the Widji Applicant declined this offer and a mediation protocol was executed by the Ngadju Applicant, Kalamaia Kabu(d)n Applicant and the GLSC on 7 July 2010. In May 2011, the Widji Applicant sought to participate in this mediation process but declined to become a party to the mediation protocol.

7.    One of the steps provided for by the mediation protocol was for anthropological research to be conducted by Dr Kingsley Palmer about the same area of overlap between the three applications. The Ngadju, Kalamaia Kabu(d)n Applicants have each been provided with and have considered Dr Palmer’s research. The GLSC has received and responded to a request from the Widji Applicant for access to documents considered by Dr Palmer relating to the mediation of the overlap between Ngadju Application, Kalamaia Kabu(d)n Application and the Widji Application.

8.    I am not aware of any request made by the Widji Applicant for reports or documents critical to the research of a connection report for the Widji Application for proceedings in the Federal Court as referred to in the Johnson Affidavit at [4]. As Principal Legal Officer, any request for information held by the GLSC must be referred to me.

This objection was on the basis of relevance. It was submitted by Mr Carter for the Widji applicant that whether or not access was given to the Widji applicant’s anthropologist was not relevant to the determination of the strike out application. It seems to me that this objection substantially falls away when it is readily conceded by the Widji applicant that the application has not been properly authorised.

There was also objection raised to a supplementary affidavit of M/s Kilpatrick, also sworn on 15 May 2012. It essentially corrects some errors in the first affidavit and draws attention to the awareness of GLSC’s research manager to a request for access by Dr Johnson to one report held by the GLSC. An objection was raised on the grounds of relevance again. It is unnecessary for me to have regard to the content of this affidavit to reach my view.

A further affidavit was filed by Mr Dylan Parker, a solicitor employed by GLSC, on 15 May 2012. Objection was taken to para 4 and para 5 on the grounds of relevance and hearsay where Mr Parker deposes to or purports to depose to the evidence given by Mrs Dorothy Dimer (nee Donaldson) in the Ngadju proceeding. I do not accept the validity of this objection. Mr Parker’s affidavit deposes to evidence given in this Court before Justice Marshall. To disregard that evidence would not conform with s 86 of the NTA which permits evidence in another proceeding to be given in this proceeding or taken into evidence in this proceeding from transcript and any appropriate conclusions of fact to be drawn. Those paragraphs read:

4.    In December 2004, Marshall J heard a tranche of preservation evidence in the Ngadju Application. Dorothy Dimer (nee Donaldson) gave evidence during that tranche in support of the Ngadju Application on 4 December 2004. I have read the transcript of those proceedings.

5.    In May 2012, Marshall J heard the third and final tranche of claimant evidence in the Ngadju Application. Justin Graham gave evidence on 9 May 2012. I am aware from reading his witness statement and the evidence he gave that Mr Graham’s biological mother is Deanne Donaldson whose mother was Roma Donaldson. Mr Graham gave evidence that he was raised by his biological mother’s aunt, Veronica Hogan (nee Donaldson), who is the sister of Roma Donaldson. Mr Graham also gave evidence that Veronica Hogan is the daughter of Clem “Kingie” Donaldson.

This material is admissible for reasons stated and clearly relevant to the composition of the respective overlapping claim groups.

Objection was also taken to an affidavit of Dr Johnson. The objection was on the basis that his opinions were not supported by any factual bases. Field notes were requested by GLSC but not provided. Mr Carter explained that the affidavit was not relied upon so much as the evidence of Dr Johnson’s opinion as to the fact that anthropological research is being conducted and that anthropological opinions based on that research are held. This is a fine distinction. In light of the conclusion I have reached, it is unnecessary to consider the affidavit or rule on the objection or response.