FEDERAL COURT OF AUSTRALIA

Far West Coast Native Title Claim Group v State of South Australia (No 3)

[2012] FCA 1435

THE COURT ORDERS THAT:

1.    The application for vacation of the hearing date of the interlocutory application of Robert Victor Miller (listed for hearing on 17 and 18 December 2012) is refused.

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

REASONS FOR JUDGMENT

1    In late 2011, Robert Victor Miller applied for interlocutory relief in this matter, including initially an order that the Mirning native title claim (WAD6016/1998) be reinstated as a separate application for the determination of native title under the Native Title Act 1993 (Cth) (the NT Act) and/or no longer be combined with the Far West Coast native title claim. Mr Miller is presently a member of that combined claim group.

2    On 10 July 2012, the Court dealt with that application by refusing the reinstatement order which was sought, and by refusing to deconsolidate the previously entitled Far West Coast native title claim and the Mirning claim, both now in the Far West Coast native title claim. The applicant through SANTS successfully applied for that part of the application to be summarily dismissed.

3    Mr Miller had separately applied on that interlocutory application for joinder as a party to the Far West Coast native title claim, and for orders under sections 84D(1) and (4) of the NT Act. In the course of the argument, up to the decision of 10 July 2012, it was not apparent that Mr Miller in fact intended to press his application under section 84D(1) or (4). That opportunity was preserved to him, although (subject to correction) I seem to recall that in the course of submissions, his counsel indicated that he did not want to do so.

4    Following that decision, a series of directions were given. They included, on 20 August 2012, a direction that Mr Miller notify the other parties of the precise terms of any orders he sought on his interlocutory application. On 7 September 2012, an order was made that Mr Miller file and serve by 28 September 2012 any further evidence he proposed to rely upon in support of his application for joinder, or for an order under section 84D; and a brief summary of his contentions, including factual findings sought in relation to his claim that the Far West Coast native title claim is not authorised or is not being conducted as authorised. He appears to have complied with that direction.

5    On 8 October 2012, the remaining issues on his interlocutory application were listed for hearing on 17 and 18 December 2012. The applicant to the proceeding generally was given leave to file and serve further evidentiary material and a summary of contentions in response to what was by then Mr Miller’s further affidavit of 27 September 2012, and his summary of contentions and factual findings sought in support of his interlocutory application of the same date, and Mr Miller was given an opportunity to file and serve responsive submissions.

6    In my view, it is clear that Mr Miller’s interlocutory application, commenced late last year, was listed for hearing in respect of the remaining orders sought, and he was given the opportunity to present such material as he intended to present in support of it. His initial affidavit in support of the application, his summary of contentions and factual findings, and his affidavit of 27 September 2012, were specifically in support of the orders he now seeks.

7    The applicant to the proceedings has responded by filing a number of affidavits, including an extensive affidavit of Osker Linde, containing a series of documents relating to the circumstances in which the claim was authorised and has been progressed since that time.

8    On 7 December 2012, Mr Miller, through his solicitor, applied for the hearing date to be vacated, and for orders for discovery, the exchange of witness lists and a proposal to agreed facts.

9    I have heard submissions this morning in support of the application that the hearing date for the hearing of his interlocutory application be vacated. In essence, that is because his solicitor considered, notwithstanding the terms of the orders, that he (on behalf of Mr Miller) should work towards “meeting the summary standard” - that is - that there was a real question of fact or law to be determined, and that it was unnecessary to call witnesses for the purposes of meeting that standard. The orders clearly do not support such an interpretation. However, I accept that the solicitor for Mr Miller did have that apprehension. He may have done so because SANTS had sought summary dismissal of the interlocutory application. The question now is whether the adjournment application sought should be granted in those circumstances.

10    I propose to refuse the application. I do so because, on the face of the documents, Mr Miller, by his affidavits, has indicated that he is presenting his affidavits in support of the orders which he has been seeking. There is no sound basis on the material to speculate that Mr Linde’s affidavit exhibiting the relevant documentary material relating to the meetings by which authorisation for the claim is said to have been given, and has since been conducted, is incomplete.

11    There is a suggestion that Mr Miller may have wanted to call further evidence. But he had the opportunity to identify that, regardless of what he thought was to have been heard on 17 and 18 December 2012, by reason of the orders which were made in September. The proposed further evidence has only been generally referred to.

12    In addition, it is said that a different person, that is, Michael Alfred Laing, has now applied to be joined as a respondent party to the proceeding, and in January anticipates having some anthropological evidence to support that joinder. Mr Miller says he may wish to rely upon that material if it becomes available. At present, I do not see how that material will support his claim. As I noted in the judgment of 10 July 2012, Mr Miller is accepted to be a member of the Far West Coast Native Title Claim Group. The issue is not whether he is a member of that claim group, but whether he should, as a member of that claim group, be permitted to be joined as a respondent party. That would not routinely be allowed unless there were particular circumstances pertaining to him, or to others including him, which would warrant that course of action. I do not see how the proposed further anthropological evidence to support Mr Laing’s claimed status to be a member of the claim group (a matter which, I am aware from other steps taken in this proceeding, is contentions) would assist.

13    On the other hand, there is a clear potential detriment to the applicants, and indeed, to the State and other respondents, if this matter is not resolved as promptly as can reasonably be done. It is a longstanding matter. It is a matter where the State, in particular, has been negotiating with the named applicant through SANTS for a considerable period of time. The evidence shows that there has been significant progress towards what might eventuate as a consent determination, but while Mr Miller’s application is outstanding, that progress cannot continue.

14    Mr Miller’s application has already delayed it to some extent, and a further delay, likely to be of some months whilst further evidence is assembled by Mr Miller of an unspecified character, and further discovery is given for what is not apparent to me to be a useful purpose at present, would simply put back that process for a number of months. There is obviously a significant injustice in doing that.

15    If no consent determination is able to be reached, and the matter proceeds to hearing, it is far too common a story that delay leads to the loss of available evidence from the elder members of the claim group through loss of memory, or indeed, through their passing on. Delay is a very critical issue in this type of proceeding.

16    Accordingly, having regard to what I see as Mr Miller’s opportunities to prepare and present his case in accordance with directions given, even accepting a misunderstanding on the part of his solicitor as to what might have to be proved for this particular hearing next week, having regard to the extent of information of a documentary character available to support the issue of authorisation (I make no comment about its quality, but it is all apparently available) having regard to the consequences of delay, and having regard to Mr Miller’s acknowledged status as a member of the claim group, in my view the appropriate order is simply to refuse the application for an adjournment, so that the matter proceeds next week. I so order.

Associate:

Dated:    13 December 2012