FEDERAL COURT OF AUSTRALIA

Levinge on behalf of the Gold Coast Native Title Group v State of Queensland [2012] FCA 1321

THE COURT ORDERS THAT:

1.    The application filed 18 September 2012 is dismissed.

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

REASONS FOR JUDGMENT

Leave is sought to discontinue a native title claim

1    The authorised Applicant for the Gold Coast Native Title Claim Group (the Gold Coast NTCG) seeks leave to discontinue these proceedings: a native title determination application or claim made under ss 13 and 61 of the Native Title Act 1993 (Cth) (the NTA). While I consider the authorised Applicant has the authority to make this application, I have decided, in the exercise of my discretion, not to grant it leave to discontinue this native title claim because there is no evidence it has informed the Gold Coast NTCG about this application nor, more importantly, sought its views on it. My reasons for this conclusion follow. However, because this discontinuance application is complicated by the past and recent history of these proceedings, the approach adopted by the authorised Applicant in relation to the discontinuance application and certain conditions that the first respondent, the State of Queensland, seeks to have imposed on the grant of leave to discontinue, it is appropriate to begin these reasons by setting out those complications in some detail.

The claim area and the history of claims over it

2    The Gold Coast NTCG’s application for the determination of native title relates to an area of land and waters in and around the Gold Coast region of South East Queensland (the claim area). It extends from the Logan River in the north to the Tweed River in the south. It incorporates the coastal areas and several of the southern Moreton Bay Islands, including South Stradbroke Island, in the east, and extends to the Tamborine and Numinbah Valley areas in the west. A small part of the claim area falls in the far northern area of the State of New South Wales.

3    This is the fourth such native title claim to be lodged over this area of land and waters in the past 16 years. The first claim was lodged with the National Native Title Tribunal by the Kombumerri People in 1996. That claim became a proceeding in the Federal Court following the 1998 amendments to the NTA. A second claim by the Kombumerri People was filed in 1998 to include five specific lots that were accidentally omitted from their original claim.

4    The third claim was filed in January 2001 on behalf of the Eastern Yugambeh People. That claim overlapped the area of the Kombumerri People’s claims. These claims were all discontinued in 2002 after Dowsett J made programming orders for the trial of the three overlapping proceedings.

5    No conditions were attached to this discontinuance. Thus, the fourth claim – this current claim – was able to be filed without impediment on 5 September 2006. It was made by Mr Ian Levinge and six other people who were authorised to make the application on behalf of the Gold Coast NTCG. It should be noted that one of these seven people has since died (see [26] below). The Gold Coast NTCG is described in the application for the current claim as including both the Kombumerri and Yugambeh people mentioned above.

6    From this history of previous claims over the same claim area, it can be seen that the question whether native title exists in the claim area has been agitated on and off by the people who variously make up the current native title claim group, since 1996 – some 16 years.

The history of the current claim

7    Initially, the current claim was not accepted for registration by the Native Title Registrar. It was amended, with the assistance of Queensland South Native Title Services (QSNTS), the native title representative body for the area, on 13 May 2010 to incorporate an updated map and written description of the claim area. It subsequently passed the registration test and the notification period under s 66 of the NTA concluded on 28 February 2011.

8    From late 2010 and throughout 2011, the Applicant commissioned the preparation of an anthropological report directed to establishing what is generally referred to as connection. That report was subsequently provided to the respondent States – the State of Queensland and the State of New South Wales. During late 2011, conferences were held between representatives of the Applicant and the States of Queensland and New South Wales to attempt to resolve the connection issues associated with the claim. At a directions hearing held on 15 December 2011, the State of Queensland informed the Court that it was not able to accept that the Gold Coast NTCG could establish the necessary connection with the claim area.

9    The matter was then adjourned to a directions hearing on 2 February 2012 on the basis that unless the parties could, by that date, agree that the matter would proceed to a consent determination, it would be set down for trial. No such assurance was given at the directions hearing held on 2 February 2012 and, accordingly, the matter was tentatively set down for trial in June 2013. At the same time, an extensive set of trial programming orders was made.

10    Three things should be noted about the orders made on 2 February 2012. First, the draft for those orders was developed between the Applicant and the two States and, most importantly, they were made by consent. Secondly, the Applicant’s then counsel, Mr Carroll, did not, during that directions hearing, mention any difficulties the Applicant might have in marshalling the resources necessary to participate in a trial of the proceedings in June 2013. Finally, at the request of the Applicant’s counsel, those orders included a process whereby the parties were to consider and discuss, among other things, the possibility of a non-native title settlement of the proceedings.

11    The latter process continued between February and May 2012. On 30 May 2012, the State of Queensland reported that the Applicant and the two States were not able to agree to a non-native title settlement of the proceedings.

12    At a directions hearing held on 31 May 2012, the trial programming orders were amended to omit the orders relating to the process described above and to otherwise confirm those orders and the trial dates set for June 2013.

13    The first of the trial programming orders required the Applicant to file its Points of Claim on all issues, except extinguishment, by 27 July 2012. It failed to do so. Instead, on 9 August 2012, it filed an application to vacate the June 2013 trial dates and to extend the time for compliance with the aforementioned order to 28 February 2013 and most of the other trial programming orders, by seven months.

14    This application to vacate the trial dates was essentially based on the Applicant’s claims that it did not have the resources to prepare for, and attend, a trial of the proceedings in June 2013. Mr Wilson, for the Applicant, submitted that it was in the public interest that this claim be properly prepared and submitted to the Court at the trial so that it could be properly determined on its merits. He submitted that the claim area was of particular significance to the Gold Coast NTCG. He said that his instructions were that there were 500 families in the Gold Coast NTCG who could trace their ancestors back to the time of sovereignty and who could establish continuing connection with the claim area.

15    The application to vacate the trial dates was supported by two affidavits by Ms Bennett (filed 9 and 14 August 2012). Ms Bennett is employed as the manager of a company called Jabree Ltd. According to Ms Bennett, it is her role to “assist with administration and liaison requirements associated with the application of” the Gold Coast NTCG. Ms Bennett gave as the reason for the application to vacate the trial dates that: “The Applicant is presently unable to fund the present proceedings from their existing resources and applies for an adjournment to enable the applicant to obtain additional funding so as to properly comply with the programming orders.” After giving some details of the operations and financial commitments of Jabree Ltd, Ms Bennett claimed that “the cost for a trial are well in excess of $1 million”. In a second affidavit, Ms Bennett gave some details of these costs. She said that more than $100,000 was required for a consultant anthropologist’s fees and expenses and more than $250,000 was required for solicitors’ fees. She did not give an estimate of the total estimated amount of counsel’s fees, but she did say that they had been estimated to be in the range of $4,500 per day.

16    The application was also supported by an affidavit from Mr R Wallace, a chartered accountant. He deposed to being Jabree Ltd’s accountant and set out some brief details of Jabree Ltd’s financial position. Among other things, he deposed to the fact that the company’s turnover in 2011/12 from the provision of cultural heritage services to developers, local councils and government departments under the Aboriginal Cultural Heritage Act 2003 (Qld) was $321,135.

17    Significantly, the application to vacate the trial dates was not supported by an affidavit from any of the six surviving individuals who make up the authorised Applicant.

18    The application to vacate the June 2013 trial dates was unsuccessful. That should not have come as a surprise to the Applicant because this Court has generally been reluctant to accept a lack of funding, or representation by a party, as a sufficient reason to delay a trial of native title proceedings: see, for example, the observations of the Full Court in Bennell v State of Western Australia [2004] FCAFC 338 at [37]. There is a variety of reasons why this is so. One reason is that native title proceedings do not pertain to funding, or the independent financial affairs of the parties involved in them: see Sambo v State of Western Australia (No  2) [2010] FCA 927 at [47] per McKerracher J and Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales [2010] FCA 1073 at [25] per Jagot J. Another reason is that the Court cannot allow the policies of the Executive Government in relation to the allocation of funding for native title claims to paralyse its processes once its jurisdiction has been properly invoked: see Kokatha Native Title Claim v State of South Australia [2006] FCA 838 at [10] per Finn J.

19    If a failure to garner public funding for a claim provides no justification for delaying it, there is all the more reason why a lack of private funding should be rejected as a justification. If that were not so, the management of any litigation so affected would become dependent upon the individual choices made by a particular party in the allocation of its private financial resources. Thus, the Court would lose control over the management of the litigation and its future progress would, instead, be determined by the idiosyncratic choices of a particular party, decisions which obviously could not be the subject of any effective review by the Court. Furthermore, in that state, the litigation could be delayed for long periods, perhaps indefinitely, while the particular party’s financial position waxed and waned. If that party happened to be the moving party before the Court, the potential for injustice to any responding party is obvious. It could mean that a respondent party could be forced before the Court and then locked into litigation indefinitely with all the uncertainty, stress and financial pressure that litigation often causes. Of course, none of these observations should be taken to suggest that the Court will not take into account sudden or unexpected events that affect a party’s ability to progress a piece of litigation, or a reasonable request for more time to undertake a step in litigation arising from pressure of work, illness, or other similar causes. However, while such requests are common place in native title litigation, allowances are still generally treated as the exception, rather than the rule.

20    To return to and complete the history of the current claim, after failing in its application to vacate the 2013 trial dates the Applicant was allowed some extensions of time to comply with various steps under a revised set of trial programming orders. They included an extension of time to 7 September 2012 to file its Points of Claim. The Applicant also failed to comply with this extended deadline. Then, about 11 days after that deadline had expired, it filed the present application seeking leave to discontinue these proceedings.

The applicant’s approach to this discontinuance application

21    The reason for this discontinuance application is identical to that given for the Applicant’s failed application to vacate the June 2013 trial dates. So much is clear from Ms Bennett’s affidavit (filed 17 September 2012) in support of this application. There she said:

The Applicant is seeking leave of the court to withdraw the claim due to limited finances and resources to progress with the trial programming orders, details of which are set out in the Affidavit of myself sworn and filed herein on 9 August 2012 and Rowan Wallace sworn 13 August 2012 and filed herein on 14 August 2012.

22    Elsewhere in her affidavit, Ms Bennett said that: “All named Applicants confirmed their agreement to discontinue with the claim on the grounds of limited finances and resources to meet the trial programming orders.” She also said that she was authorised “pursuant to S.251B to speak on behalf of the names (sic) Applicants”. Whatever authority Ms Bennett has to speak on behalf of the Applicant, it could not be an authorisation under s 251B of the NTA because that section is solely and specifically directed to the authorisation of the Applicant by the native title claim group.

23    While Ms Bennett is not, herself, a member of the authorised Applicant, the statements she made in her affidavit appear to be supported by at least four members of the authorised Applicant (Mr Wesley Aird, Ms Jackie McDonald, Mr Ted Williams and Mr Ian Levinge) because they all filed affidavits in support of this application where they each said in identical terms that: “I have read the Affidavit of Ally Bennett sworn 17 September 2012 and verily believe that the information contained therein is true and correct”.

24    However, it is the final paragraph of Ms Bennett’s affidavit that gives rise to the second complication mentioned at the outset of these reasons. In that paragraph, Ms Bennett said: “The named Applicants however have all agreed that I should continue gathering evidence and developing the claim group connection report and materials with the intention of resubmitting the claim in the future.” It will be noted that this stated intention is similar to that expressed by Ms Bennett in her affidavit in support of the application to vacate the trial dates (see at [15] above).

25    To confirm that this was the approach adopted by the authorised Applicant, Mr Wesley Aird (one of the members of the authorised Applicant mentioned above) made a second affidavit in support of this application. In it he said (relative to this issue) that:

3.    The Applicant is presently unable to fund the present proceedings from their existing resources and applies for withdrawal of the claim to enable the applicant to obtain additional funding so as to properly comply with the programming orders.

…

23.    The future expenses of the claim for the trial programming orders are being researched and determined and will include Counsel to prepare Points of Claim and generally advise on the claim, an Anthropologist for gathering and assessing evidence, community consultation, a consultant to review the tenure history documents provided by the States and ongoing legal costs by Lachlan Wilson, Doyle Wilson Solicitors.

26    In the concluding paragraphs of his affidavit, Mr Aird said that the “named Applicant” had been kept advised of the orders in this matter and that:

24.    … Correspondence and communications between Ally Bennett and the named Applicants occurred from 21 August 2012 to 13 September 2012 which outlined the difficulties faced by the Applicant in pursuing the claim without adequate resources and finances to comply with the trial programming orders and addressing their queries.

25.    Ally Bennett has also spoken with all named Applicants or their representatives to discuss discontinuing the action. The phone calls are as follows: Ted Williams (proxy for Eileen Williams) on 27 August, Wesley Aird on 6 September, Jacqueline McDonald on 7 September, Early Sandy on 11 September 2012, Ian Levinge on 12 September 2012. An email was sent to Kevin Slabb and proxies Joshua Slabb, Joel Slab and Kyle Slabb on 13 September 2012.

26.    Mr Bernie Williams is deceased and I attended his funeral on 13 June 2007 at Southport, Queensland.

27    These affidavits show that the Applicant’s current approach to these proceedings is that it wishes to discontinue them to avoid the costs associated with the June 2013 trial. However, it still wishes to pursue a native title determination application in relation to the claim area; and it intends to file such an application at some unspecified time in the future, when it decides it has sufficient funds to allow it to do so.

28    It is of particular importance to the determination of this application to note that the approach outlined in these affidavits is the approach adopted by Ms Bennett, Jabree Ltd and the six surviving members of the authorised Applicant. There is no evidence in any of these affidavits that the members of the Gold Coast NTCG have been informed about this application, much less consulted to obtain their views about it. I will return to this aspect of this application later in these reasons. Before doing so, it is appropriate to describe the final complicating factor affecting this discontinuance application.

The conditions sought by the State of Queensland

29    This complication arises from the stated intention of the Applicant (above at [24]) to file another native title determination application over the same claim area at some unspecified time in the future. In response to this stated intention, the State of Queensland has proposed that the Applicant should only be granted leave to discontinue these proceedings on certain conditions directed to placing restrictions on the capacity of the Gold Coast NTCG to file any future claim over the same area of land and waters. The proposed conditions are set out in the written outline of submissions filed on behalf of the State of Queensland, as follows:

3.    The grant by the Court of leave to discontinue this proceeding is subject to and conditional upon the following:

(a)    that no further native title determination application be filed in respect of the whole or part of the area of land and waters the subject of this proceeding (the Gold Coast area), by any person(s) for or on behalf of the native title claim group, as that group is defined in the native title determination application QUD 346 of 2006 filed on 5 September 2006, (or any part thereof), without the leave of the Court;

(b)    the grounds upon which such leave may be granted include that the following are demonstrated to the satisfaction of the Court:

(i)    an expert anthropological report has been obtained specifically dealing with the issue of all Indigenous interests in the Gold Coast area (the Report);

(ii)    the Report has been provided to the State;

(iii)    counsel has advised in relation to prospects and evidence for any further native title determination application; and

(iv)    points/statement of claim addressing the issues identified in Attachment A to these orders will be filed contemporaneously with the further native title determination application.

(c)    no application for leave to file a native title determination application be brought before one (1) month after the Report has been provided to the State.

4.    If order 3 is not complied with, this order, and the discontinuance of these proceedings, be a defence to any application for a native title determination which is made in respect of the whole or any part of the Gold Coast area by or on behalf of any of the members of the native title claim group.

30    According to Mr Preston, counsel for the State of Queensland, these conditions were adopted from a relatively recent decision on a similar application to discontinue a native title determination application proceeding: Close on behalf of the Githabul People #2 v State of Queensland (2010) 190 FCR 182; [2010] FCA 828 (Close). In Close, Collier J accepted the submissions from the State of Queensland and made orders imposing a similar set of conditions on the Applicant’s leave to discontinue the proceedings. In a subsequent decision of Gale on behalf of the Darug Tribal Aboriginal Corporation v New South Wales Minister for Land and Water Conservation [2011] FCA 77 (Gale), Jagot J referred to Close (Gale at [17]) and made an order imposing conditions similar to those set out in 3(a) above, but without specifying the grounds upon which such leave may be granted as set out in conditions 3(b) and (c) and 4 above.

The contentions of the parties

31    Mr Wilson, for the Applicant, began by submitting that the Applicant had authority under s 62A of the NTA to seek leave to discontinue these proceedings. In making this submission, he relied upon the decision of Collier J in Close. Mr Wilson also submitted that the Applicant had adduced evidence that established that all the members of the authorised Applicant had consented to this application. He said that the Applicant opposed any conditions being imposed on its leave to discontinue these proceedings. In this respect, he submitted that the decision in Close on this aspect was distinguishable because, in that case, the Applicant had conceded that the native title determination application had no prospects of success in its current form (see Close at [40]) and there was division in the native title claim group. By contrast, Mr Wilson claimed that in this case the Gold Coast NTCG had a valid claim to hold native title rights and interests over the claim area and the only reason why the authorised Applicant was unable to pursue that claim was that it did not have the necessary resources to prepare for and attend a trial of the proceedings in June 2013. He also claimed that there was no division within the Gold Coast NTCG in relation to this claim. Mr Wilson submitted that, as a general principle, a person ought not to be forced to conduct litigation against its will. He submitted that no injustice or prejudice would be caused to any of the respondents if the Applicant were allowed to discontinue these proceedings. He pointed to the fact that the State of New South Wales had consented to the Applicant being given leave to discontinue the proceedings and, while the State of Queensland had sought to have conditions imposed on the grant of leave, it did not oppose leave being granted. Mr Wilson submitted that the Applicant had been frank with the Court and clearly stated its intentions to pursue a similar claim in the future once it marshalled the resources to do so. He submitted that, in all these circumstances, it would not be fair and just to dismiss these proceedings and thereby create a res judicata. Therefore, he submitted, the Applicant should be permitted to discontinue the proceedings without any conditions being imposed which would hamper the ability of the Gold Coast NTCG to pursue a similar native title claim in the future.

32    Mr Preston, for the State of Queensland, supported Mr Wilson’s submissions that, based upon the decision in Close, the Applicant had authority under s 62A of the NTA to make this application to discontinue these proceedings. However, Mr Preston questioned whether the evidence adduced on behalf of the Applicant was sufficient to demonstrate that all of its members consented to this discontinuance. He stated that the State of Queensland accepted that, as a general principle, a party should not be forced to litigate against its will. For this reason, he said that the State of Queensland would consent to the Applicant being given leave to discontinue. However, it did so on the basis that the conditions it sought would be imposed in relation to any future claim the Gold Coast NTCG may seek to file. In support of imposing these conditions, Mr Preston submitted that the State of Queensland had provided resources and incurred costs in connection with these proceedings by, among other things, examining the Applicant’s connection materials. He pointed out that after undertaking that exercise the State of Queensland had concluded that, in its view, the Applicant’s connection materials did not “found a reasonably arguable case for the recognition of native title in relation to the claim area”.

33    Mr Preston submitted that, if these proceedings are discontinued now, rather than being determined at the trial fixed for June 2013, there will be no finality on the underlying issues raised by them. In that event, since the “future act” regime in the NTA will continue to apply to the whole of the claim area, he submitted there will be continuing uncertainty as to the extent to which any native title rights and interests are continued to be held over any part of that area. He submitted this delay and uncertainty was not in the public interest. He submitted that the proposed conditions would, to some extent, ameliorate these concerns by requiring any future claim to be properly researched and presented. Finally, he emphasised that the State of Queensland was not seeking to prevent the Applicant filing a further claim in the future, but it was merely seeking to ensure that such a claim had reasonable prospects of success so that the situation that arose with this current claim was not repeated.

34    The State of New South Wales consented to leave being given to the Applicant to discontinue these proceedings. It made no substantive submissions on the conditions proposed by the State of Queensland. However, it submitted that if those conditions were to be imposed, the condition proposed by para 3(b)(ii) should be amended to add the words “where the claim area is located”. It submitted that this amendment would ensure that the conditions would apply to the whole of the claim area, whether it fell in the State of New South Wales or the State of Queensland. This amendment was not opposed by any other party and if any conditions were to be imposed, it would appear to be sensible to make the amendment in the circumstances where a part of the claim area is within the State of New South Wales.

35    As the native title representative body having responsibility for the claim area, QSNTS was permitted to make submissions limited to the question whether the proposed conditions should be imposed. On that aspect, Mr Wishart submitted that the proposed conditions were too onerous. In particular, he submitted that they should not include a requirement for the Applicant to obtain counsel’s opinion as to the prospects of successfully pursuing the claim (proposed condition 3(b)(iii)). In response to this submission, Mr Preston referred to para 23 of Mr Aird’s affidavit, where he said that the Applicants proposed to obtain the advice of counsel to advise generally on the proposed claim (see at [25] above). It is convenient to deal with this matter at once. Since Mr Aird is a member of the authorised Applicant and he proposes that the Applicant will obtain counsel’s opinion in relation to any future claim, I do not consider that proposed condition could be considered to be too onerous. I therefore reject Mr Wishart’s submission on this aspect.

The issues that arise

36    The following issues arise from these contentions of the parties:

(a)    Does the authorised Applicant have the authority to apply to discontinue these proceedings?

(b)    If so, should the Applicant be granted leave to discontinue?

(c)    If so, should that leave be granted on the conditions proposed by the State of Queensland?

Before addressing these issues, it is first convenient to identify the relevant Court rule and the principles applying to the grant of leave to discontinue proceedings before the Court.

The relevant Rule and the principles on the grant of leave to discontinue

37    Rule 26.12 of the Federal Court Rules 2011 allows a party to file a notice of discontinuance of proceedings without leave in certain circumstances (none of which arises here), or with the leave of the Court at any time. It is also germane to note Rule 26.14 of the Federal Court Rules 2011, which provides: “Discontinuance under this Division cannot be pleaded as a defence to a proceeding in relation to the same, or substantially the same, cause of action.” Nonetheless, as the note to that Rule records, the Court may permit the discontinuance on terms under Rule 1.35. This accords with the position under the former Federal Court Rules (O 22 r 7), which contained such a provision within the terms of the Rule itself: see Close at [40].

38    The principles relevant to the grant of leave to discontinue were summarised by Lee J in Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382 (at 383) as follows:

The discretion to grant leave is unfettered. (See Covell Matthews & Partners v French Wools Ltd [1077] 1 WLR 876 at 879; … SCI Operations Pty Ltd v Trade Practices Commission (1984) 2 FCR 113, per Sweeney J (at 142-143), per Lockhart J (at 161-162), per Sheppard J (at 184-185).) The court will give consideration to the need to refrain from compelling a party to litigate against its will but will also consider the extent to which the proceedings have developed and whether discontinuance against one respondent may impose injustice on another respondent by removing an advantage that respondent may otherwise enjoy in the proceedings or by imposing a disadvantage. In considering the undesirability of an applicant being forced to continue litigation unwillingly, it is relevant to have regard to whether the discontinuance would make any difference to the burden of litigation undertaken by the applicant and whether the application to discontinue results from a conclusion that the litigation cannot succeed against that respondent or is inspired by other reasons.

The requirement of the Federal Court Rules that, in the absence of consent of all parties, discontinuance of litigation against a party only be permitted by leave of the court contemplates a judicial review of all relevant circumstances and the satisfaction of the court that the grant of leave is proper in all the circumstances. In some cases the court may determine that a grant of leave to discontinue should be attended with conditions and in a rare case the court may determine that the only appropriate order is to refuse the leave sought.

Does the authorised Applicant have the authority to apply to discontinue?

39    The first issue raised by the contentions of the parties on this application is: Does the authorised Applicant have the authority to apply to discontinue these proceedings?

40    Section 251B of the NTA prescribes the process whereby a native title claim group may authorise a person or persons “to make a native title determination application”. From one perspective, it could be regarded as inherently contradictory to say that a person who is specifically authorised by a native title claim group to make a native title determination application has the authority not to make the application or, as the logical extension of that, to discontinue an application once it has been made. However, as Collier J pointed out in Close (at [22]), the words in s 251B “to make a native title determination application” are followed by the words “and to deal with matters arising in relation to it”. Furthermore, s 62A of the NTA confirms the breadth of the authorised applicant’s authority by providing that: “… the applicant may deal with all matters arising under this Act in relation to the application”. The addition of the word “all” before the word “matters” in this provision reinforces the extent of the matters over which the authorised applicant has authority. I therefore respectfully agree with Collier J in Close where her Honour said of s 62A, that [at [32]):

The phrase “all matters arising under this Act in relation to the application” in s 62A is, in my view, unambiguous, and should not read narrowly. “All matters” means, in my view, all matters, including discontinuance, and the words “in relation to” have been held to be extremely wide although their meaning will be determined by the context (Australian Securities and Investments Commission v Narain (2008) 169 FCR 211 at [68]-[69]).

41    In his oral submissions, Mr Preston faintly suggested that the words in s 62A: “arising under this Act” may place some limitation on the extent of the Applicant’s authority. I say “faintly” because, having raised the question, Mr Preston did not pursue it. Furthermore, no other counsel made any submissions on the point, and nor does it appear to have been raised in Close. If this lack of interest in this point is intended to indicate that it is not considered to have any merit, I agree with that assessment. In my view, a matter arises under the NTA “if the right or duty in question in the matter owes its existence to” the NTA: Northern Territory of Australia v GPAO (1999) 196 CLR 553; [1999] HCA 8 at [90]. In this matter, the native title determination application which the Applicant seeks to discontinue owes its existence directly to the right the Gold Coast NTCG exercised under ss 13 and 61 of the NTA to authorise the Applicant to file that application. It must follow, in my view, that the question whether the Applicant now has the authority to discontinue that application also owes its existence, albeit indirectly, to the exercise of the same right under the NTA. The question, therefore, whether the Applicant should be given leave to discontinue that application is a matter that arises under the NTA.

42    For these reasons, I consider the authorised Applicant in these proceedings does have the authority to apply to discontinue them.

Should the Applicant be granted leave to discontinue?

43    The second issue raised by the contentions of the parties on this application is: Should the Applicant be granted leave to discontinue?

44    As is already noted above (see at [38]), the question whether a person should be granted leave to discontinue proceedings before the Court is a matter over which the Court has an unfettered discretion. The existence of this unfettered discretion is underscored in Close: see, for example, Close at [34]–[35]. In Close, Collier J identified a number of matters which lead her Honour to conclude that the authorised applicant should be granted leave to discontinue the proceedings: see at [36]–[40]. They included the fact that:

The applicant has received legal advice that the native title determination application before the Court no longer has reasonable prospects of success, in part arising from a serious schism which has developed within members of the claim group itself and the resultant evidentiary difficulties which will arise (for example, in relation to producing witnesses to support the claim).

45    While Collier J concluded that the authorised applicant was not obliged to seek the approval of the native title claim group to apply to discontinue the proceedings (see at [32]), this conclusion has to be seen in the context of her Honour’s earlier factual findings about the attitude of the native title claim group towards the application to discontinue. These factual findings appear at [18]–[20] where her Honour referred to a resolution passed at a meeting of a Steering Committee which authorised (albeit nunc pro tunc) the applicant to make the application to discontinue (see at [19]). Moreover, her Honour found that the Steering Committee concerned had been specifically established by the native title claim group to direct the actions of the authorised applicant (see at [18]). Thus, Collier J was able to conclude that she had evidence before her that “demonstrates that specific authority has been conferred on the applicant by claim group members to seek the leave of the Court to discontinue the application”: see at [20].

46    In this matter, there is no evidence that the members of the Gold Coast NTCG have been informed about this application to discontinue these proceedings, or consulted in any way to obtain their views about it. There is also no evidence of any Standing Committee process, or similar procedure, providing for a means of communication between the Gold Coast NTCG and the authorised Applicant about such matters. The situation may be different if, for example, the Gold Coast NTCG comprised a small number of families each of whom was represented by a member of the authorised Applicant. However, according to counsel for the Applicant, the Gold Coast NTCG comprises over 500 families and there is no evidence that the membership of the authorised Applicant has been structured to provide a means of representing the views of those 500 families. I therefore have no means of knowing whether the Gold Coast NTCG agrees with, or opposes, this application to discontinue its native title claim.

47    As to the latter words, viz “its native title claim”, it is important not to lose sight of the fact that these proceedings are representative proceedings. That is, the authorised Applicant has commenced the proceedings on behalf of the persons who “according to their traditional laws and customs hold the common or group rights and interests comprising the particular native title” over this claim area: see s 61(1) of the NTA. Thus, while the authorised Applicant had the authority to commence the proceedings and has the exclusive authority to continue to deal with them, the proceedings remain throughout those of the Gold Coast NTCG. It is its native title claim.

48    In Close (at [28] and [30]–[31]), Collier J referred to a decision of French J in Anderson v Western Australia (2003) 134 FCR 1; [2003] FCA 1423 (Anderson). In Anderson, the authorised applicant applied under O 13 r 2 of the Federal Court Rules to make a major amendment to a native title determination application so that it incorporated a number of other claims to constitute a single Noongar claim: see at [8]–[9]. At the same time, it applied under s 66B of the NTA to remove 11 of the 16 members of the authorised Applicant and to add one so that, allowing for two members who were deceased, its total membership was reduced to four. French J dismissed both applications. On the application to amend, his Honour concluded that the authorised Applicant had authority to make that application under s 62A of the NTA (see at [48]), however, he exercised his discretion to reject the application based on the following reasoning (at [48]):

Amendment of an application, other than replacement of applicants, may be dealt with by applicants named on behalf of the native title claim group. So much appears from s 62A of the Act. That extends to an authority to apply for an amendment to the application. Whether such an amendment should be allowed is always a discretionary issue. In this case I am satisfied that all applicants, save for Mr Saul Yarran and Mr Robin Yarran, support the present application for amendment of the application in the way proposed. Where a division arises between the applicants such that one or more of them is not prepared to support an amendment, it may be debatable whether the Court has authority to allow the amendment. It is not necessary for me to decide that question here. Where it is a major amendment that is proposed the dissent of some of the applicants to the proposed amendment is a powerful discretionary factor against allowing it. In such a case whether the bar be legal or discretionary the proper remedy for the majority applicants is to go back to the native title claim group and obtain a decision that the group of applicants, in so far as it includes the dissentients, is no longer authorised by the claim group to deal with matters arising in relation to the application, and an authority for members of the native title claim group to apply to the court under s 66B. Alternatively, it may be that the authority conferred upon the applicants is conferred in terms that enable it to be exercised according to a majority vote. That would, however, depend upon the terms of the authority. I express no concluded view on the efficacy of such a procedure.

(Emphasis added)

49    While the decision in Anderson dealt with the exercise of discretion in relation to an amendment application, rather than a discontinuance application, and his Honour’s reasoning was plainly affected by the effect of the dissent in the membership of the authorised applicant, I consider it provides some guidance on the discretionary considerations that arise in this application. If the views of the native title claim group should be sought in relation to a major amendment application when there is dissent within the membership of the authorised applicant, it would seem to follow that, even though there may be no dissent within the membership of the authorised Applicant here, the views of the native title claim group are just as germane where the authorised Applicant proposes to bring a complete end to the proceedings.

50    For these reasons, I do not consider that it would be in the interests of justice to grant leave to the authorised Applicant to discontinue this native title claim, without knowing the views of the Gold Coast NTCG on that application. I therefore decline to exercise my discretion to grant that leave.

Should leave be granted to discontinue on conditions?

51    The final issue raised by the contentions of the parties on this application is: Should leave be granted to discontinue these proceedings on the conditions proposed by the State of Queensland?

52    Since I have decided not to grant the authorised Applicant leave to discontinue these proceedings, it is not strictly necessary for me to determine this issue. However, because the issues surrounding this discontinuance application and, specifically, the question whether conditions should be imposed on the grant of any leave to discontinue the proceedings are likely to arise for discussion within the Gold Coast NTCG in deciding whether to support, or oppose, any future application to discontinue these proceedings, it is appropriate that I express my views on some of those issues. In doing so, I will first mention two surrounding issues, before addressing the proposed conditions.

53    First, it is necessary to dispose of the claim that the Applicant would be forced to litigate against its will if these proceedings are not discontinued. In my view, that characterisation misstates the correct position. It is clear from the affidavit material presented in support of this application that the Applicant wants to litigate the question of the native title rights and interests that the Gold Coast NTCG claims to hold over this claim area. However, it wants to delay its litigation of that question until some unspecified time in the future of its choosing because it claims it does not have the necessary financial resources to litigate it now. Nonetheless, the fact is that the Applicant’s counsel consented to the June 2013 trial dates being fixed and to the trial programming orders being made. So, the only things the Applicant is being forced to do are to litigate that question at a trial in June 2013, as it originally agreed to do, and to comply with the trial programming orders, as it also originally agreed to do.

54    Secondly, given the history of this claim and the previous claims lodged over the same claim area going back approximately 16 years, I do not consider it is either in the interests of the administration of justice, or the broader public interest, that this question about the native title rights and interests that the Gold Coast NTCG claims to hold over the claim area remains unresolved. In this respect, it is worth making three points. First, this current claim passed the registration test under Pt 7 of the NTA. As a consequence, the Native Title Registrar has accepted that this claim raises a prima facie question about the existence and extent of at least some of the native title rights and interests that are under claim: see s 190B(6) of the NTA. That being so, as long as that question remains unresolved, there is, as Mr Preston submitted, likely to be continuing uncertainty within the Gold Coast region, as to what parts of the claim area are affected by the future act provisions of the NTA. Secondly, the provisions of Pt VB of the Federal Court of Australia Act 1976 (Cth) apply equally to native title proceedings as they do to all other litigation before the Court. These provisions include the overarching purpose of resolving disputes before the Court justly and as quickly, inexpensively and efficiently as possible. In my view, it would not be consistent with that overarching purpose to allow a dispute that has been proceeding in this Court on and off for more than 16 years, to continue unresolved. After all, as Rares J aptly observed (with respect) in relation to the unfortunate delays experienced in the Court’s native title list, “[justice] delayed is justice denied”: see Prior on behalf of the Juru (Cape Upstart) People v State of Queensland (No 2) [2011] FCA 819 at [32]. Thirdly, while the lack of opposition – indeed support in the case of the State of New South Wales – to this application from any of the respondent parties would ordinarily be a significant factor in favour of granting the leave the Applicant seeks, I consider that, in the circumstances of this case, it is outweighed by the various other factors I have adverted to above.

55    Finally, there is the question of the conditions proposed by the State of Queensland. In my view, the State of Queensland has identified a number of good reasons why the persons that comprise the Gold Coast NTCG should be restricted to a properly researched and articulated claim if they were to be permitted to discontinue these proceedings and commence similar proceedings over the same claim area at some unspecified time in the future. Those reasons are summarised at [32]–[33] above and do not require repeating here. Nonetheless, in the circumstances of this application, I do not consider the Court has the power to impose such conditions on the statutory right the Gold Coast NTCG has to file whatever future claim over the claim area it may be advised to.

56    My reasons for reaching this conclusion are as follows. First, the effect of the proposed conditions is to prevent a future claim being filed on behalf of the Gold Coast NTCG without the prior leave of the Court (see proposed condition 3(a) at [29] above). Further, the proposed conditions seek to prescribe in advance a relatively demanding set of conditions that have to be met in order to obtain the Court’s leave to file such proceedings (see proposed conditions 3(b) and 3(c) at [29] above).

57    Secondly, as I have already noted above (see at [41]), the members of the Gold Coast NTCG have a right under ss 13 and 61 of the NTA to authorise a person to make an application to have its claim to “hold the common or group [native title] rights and interests” over this claim area, determined by this Court. Once that right is exercised and the proceedings have been duly commenced, there are, of course, various requirements of the NTA and the Federal Court Rules 2011 that must be met in order to maintain those proceedings to a final determination: see, for example, the requirements of s 61 relating to the authorisation of the applicant, s 62 prescribing the content of the application and its supporting affidavits, and s 84C providing for the striking out of proceedings that fail to comply with these provisions. However, the NTA only contains one express restriction on the exercise of the right to make that application. That restriction is that the claim area cannot include any area for which there already exists an approved determination of native title: see ss 13(1) and 61A(1) of the NTA. That restriction does not arise in this matter. Otherwise, there is no time bar, or any other similar limitation on the right of a native title clan to file a native title claim under the NTA.

58    In Ramsey v Skyring (1999) 164 ALR 378; [1999] FCA 907, Sackville J said of O 21 r 1 of the former Federal Court Rules, allowing for certain litigants to be declared vexatious, that (at [51]):

FCR, O 21, r 1 must be applied having regard to a fundamental principle of the legal system. It is that every person has a right of access to a court to seek remedies in consequence of an alleged infringement of his or her rights: Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at 977, per Lord Diplock. Because an order made under a provision such as O 21, r 1 denies a litigant this right, it has been treated as an “extreme” remedy: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 484, per Roden J. As Kirby J has pointed out in one of the many cases involving the respondent, “it is regarded as a serious thing in this country to keep a person out of the courts”: Re Attorney-General (Cth); Ex parte Skyring (at 323).

(Emphasis added)

59    Similar principles were expressed by the High Court in Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311 (at 318–9) in relation to a person’s right to file a notice of appeal in the High Court (this was before special leave to appear was introduced to the Judiciary Act 1903 (Cth)) as follows:

In our opinion, the Court should hold that it has no power to make an order, on the application of the present applicant, that no legal proceedings should be instituted by the respondents or either of them without leave of a Justice of the Court.

In so far as the notice of motion refers to the lodging of appeals, we are of the opinion that there is no inherent power to make an order requiring the respondents to obtain leave for the lodging of an appeal. The bringing of an appeal to this Court from the decision of certain other courts is regulated by s. 35 of the Judiciary Act, 1903-1969. An appeal from an order of a Justice exercising the original jurisdiction of the court may be brought as provided by s. 34 of the same Act. In our opinion, the Court has no inherent power to make an order which would negate or modify the operation of those provisions or of other statutes which provide for appeals to this Court and set out the conditions in which such appeals are available. Clearly, it would have no such power to make an order inconsistent with s. 73 of the Constitution.

But the making of unwarranted and vexatious applications in an action which is pending in the court is, in our opinion, a matter over which there is an inherent power in the court to exercise control. There is an essential difference, in our opinion, between regulating the conduct of such an action so as to prevent the court’s process from being abused, on the one hand, and impeding a particular person in the exercise of a right of access to the court, on the other hand.

60    See also Attorney-General v Wentworth (1988) 14 NSWLR 481; Jones v Skyring (1992) 109 ALR 303 at 311 per Toohey J; Hunter v Leahy (1999) 91 FCR 214; [1999] FCA 1075 per French J and MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; [2008] HCA 28 at [197].

61    There is no suggestion in this matter that the authorised Applicant, or the persons who comprise the Gold Coast NTCG, could be characterised as vexatious, or that it would involve an abuse of the processes of this Court if they were to file a further native title determination application over the same claim area, should these proceedings be discontinued. That being so, the authorities I have referred to above indicate that this Court does not have the power to impede their undeniable right to exercise the jurisdiction of this Court. Since the proposed conditions, if imposed, would, in the circumstances outlined above (see at [56]), impede that right, I do not consider this Court has the power to impose them. Thus, if I had been required to decide this issue, I would not have imposed the conditions proposed by the State of Queensland on the grant of leave to the Applicant to discontinue these proceedings.

62    Before leaving this issue, I should add this. None of the authorities I have referred to above (at [58]–[60]) appears to have been raised with the Court in either Close or Gale. This may be explained by the fact that those decisions both appear to have involved a potential abuse of the processes of the Court. Thus, they would fit into the exception mentioned in those authorities. However, if I am incorrect in this assessment, for the reasons I have given above I would respectfully disagree with those decisions insofar as they may be taken to express the view that, absent a situation involving a vexatious litigant or a potential abuse of the processes of the Court, this Court has the power to impose conditions impeding the right of a native title claim group to file a native title determination application under the NTA.

Conclusion

63    In summary, for the reasons set out above, I have concluded that:

(a)    the Applicant has the authority to apply for leave to discontinue these proceedings; and

(b)    the Court should not exercise its discretion to grant the Applicant leave to discontinue these proceedings in the absence of any evidence that the members of the Gold Coast NTCG have been notified of this application and expressed their views on it.

64    This application for leave to discontinue these proceedings must therefore be dismissed.

Associate:

Dated:    23 November 2012