FEDERAL COURT OF AUSTRALIA

Busch on behalf of the Tagalaka People #2 v State of Queensland [2012] FCA 1489

THE COURT ORDERS THAT:

Amendment of Form 1

1.    Leave is granted to amend the Form 1 Native Title Determination Application in accordance with annexure GMB9 to the affidavit of Gregory Michael Bell filed 30 October 2012.

Variation of Orders from 3 October 2012

2.    The dates for trial fixed to commence on 4 June 2013 for three weeks are vacated. In lieu thereof the matter is listed for trial for three weeks commencing on 14 October 2013 at such place as the Court may direct.

3.    The orders made on 3 October 2012 are varied in the following terms:

(a)    Order 13 is amended to:

(i)    add preceding that order the following:

By 20 December 2012 the experts engaged by the Applicant and the experts engaged by Stanbroke are to confer with a view to a preliminary identification of matters and issues about which their opinions are in agreement and about which they differ in relation to Tagalaka #2 Part B (the preliminary experts’ conference);

(ii)    amend the date in that order from 15 February 2012 to 31 January 2013.

(b)    Order 21 is amended to read:

Tagalaka #2 Part B is referred to a mediator to be appointed by the Federal Court for mediation for the purpose of assisting the parties to reach agreement on the issues in dispute and to consider and confirm any issues that are agreed between the parties.

(c)    Order 22 is amended to read:

The mediation shall take place after the experts’ conference and be attended by representatives of the Applicant, the State and Stanbroke who have authority to give instructions to their respective legal advisors, together with their legal advisors if so advised.

(d)    Order 23 is amended to add:

Agreed Statement of Issues

23A. By 15 march 2013, the Registrar is to convene a case management conference to be attended by the Applicant, the State and Stanbroke for the purpose of seeking agreement on a state of issues.

23B. The Applicant, the State and Stanbroke are to file an agreed statement of issues by 31 March 2013.

4.    The matter is adjourned for further directions at 9.30am on 19 November 2012 in Brisbane.

5.    Liberty to apply.

6.    Costs reserved.

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

REASONS FOR JUDGMENT

1    As long ago as 2001, the Tagalaka People by a group of persons whom the Native Title Act 1993 (Cth) (Native Title Act) terms “the applicant” instituted proceedings in the Court for a determination of native title in respect of land in far north Queensland, the nearest municipalities to which are Croydon within the claim area and Normanton which lies slightly to the north west of the claim area.

2    The land in respect of which application has been made for native title has been the subject of variation by amendment, most recently by amendment made with the consent of all parties by an order this morning. Earlier this year it became apparent that a portion of the land claimed by the Tagalaka People, which is delineated on exhibit 1 on this morning’s application in a red hashed area marked “Clarina”, was the subject of controversy in terms of whether native title existed in that area. As a result, on 3 October 2012, and as a sequel to issues raised at the last regional call over of native title cases in Cairns, I made orders which, amongst other things, divided the Tagalaka number 2 claim into two parts to be called Tagalaka 2, part A and Tagalaka 2, part B.

3    It is Tagalaka 2, part B to which the controversy relates. That is land in which one of the respondents, the Stanbroke Pastoral Company (Stanbroke), has an interest. Also on 3 October 2012 and as a sequel to the identification of controversy in respect of some of the land claimed, I made orders directed to the trial of that controversy for three weeks commencing on 4 June 2013. Ancillary orders relating to the preparation for trial were also made at that time. Those orders reflected an agreement between the parties as to the efficient disposition of the Tagalaka 2 claim. That also included in respect of what had become Tagalaka 2, part A, orders directed to the making of a determination by consent in December.

4    Since 3 October 2012 and self-evidently prompted by the fixing of firm trial dates, the applicant has had pause for thought about its ability to prosecute the case to trial on the dates allocated. That thought, of course, is one which ought to have occurred prior to the last regional call over and especially prior to the promotion of directions directed to the conduct of a trial. Be that as it may, the thought has occurred and it is manifested today by an application directed to the vacation of those trial dates and the effective suspension of directions directed to the conduct of a trial. What is promoted in their place are directions in respect of mediation preceded by a conference of experts. Provision has already been made in the orders of 3 October 2012 for alternative dispute resolution.

5    It emerges from the evidence read for the applicant that there is an apprehension as to the funding available to the applicant for costs in relation to preparation for and conduct of the trial. Upon closer examination of that material and related questioning of the applicant’s counsel, it emerged that the applicant had not specifically sought litigation funding for the trial and, further, that such a head of funding was separate to that provided by the Executive Government for the usual conduct of native title business in the courts and otherwise by the Land Council. That means that the applicant has not done all that one might expect ought to have been done, having regard to the Executive Government’s support for native title, to test that support in terms of requiring the making of a decision as to whether funding will be provided.

6    I find that a telling consideration in terms of the disposition of the application. There are many factors to take into account in relation to whether or not, in effect, to vacate existing trial dates without replacing the same. First and foremost is the intention that, so obviously from the recitals in the Native Title Act underpinning that legislation, in terms of the value judgment made by the Parliament as to the desirability of provision for native title by way of a statutory regime directed to the end of allowing, insofar as possible, native title controversies to be resolved by agreement, but insofar as they can not be, to be resolved by an exercise of judicial power. And all that against the wider goal of achieving reconciliation as between original and later Australians. That makes alternative dispute resolution, always an attractive option in relation to litigation, of more than usual importance. It does not mean that a case where judicial power has been engaged is to be regarded as directed to the end of alternative dispute resolution and nothing more than that. Experience suggests that alternative dispute resolution is most efficacious when the attention of the parties is focused upon the existence of the ordained alternative, which is an exercise of judicial power at a certain time to resolve a given controversy.

7    The applicant’s application this morning has about it the weakness of removing the sure and certain time for resolution by judicial power if need be. Availability of funding and the efficient use of public funds both for applicants and also, it must be recalled, by virtue of promises made by the Executive Government after Wik Peoples v Queensland (1996) 187 CLR 1 (Wik) for respondents is an important consideration. That said, a case which has remained so long unresolved in the list of a court constrained to exercise power under Ch III of the Constitution is an affront to justice. Especially that is so when a respondent, Stanbroke, who can point to a body of opinion evidence which provides a reasonable foundation for it to seek to have a controversy resolved by judicial power, wants the matter to go to trial. In so doing, Stanbroke has not in any way forsaken a disposition to participate meaningfully in mediation. So much was made clear in submissions on its behalf. It does, however, wish to have the case tried in the event that, notwithstanding reasonable endeavours on the part of all parties, it cannot be resolved consensually.

8    The Parliament has, by amendments to legislation with respect to Chapter III courts, given voice to sentiments which perhaps always attended the conduct of litigation, namely, the desirability of consensual resolution. This court is a case managed court. It was such a court when this application was instituted. Whatever may have been the case prior to Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (Aon), it is now, as a result of that case, always a relevant consideration to take into account the prior making of case management directions directed to the conduct of a trial when a vacation of that trial is sought.

9    In the joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon, at paragraphs 100 to 103, reference is made to considerations apart from the monetary which attend the desirability of prompt resolution of litigation. Their Honours refer there to the strain that unresolved litigation places on litigants; to the fact that, whilst corporations might not, as artificial legal entities, have feelings, their shareholders and directors most certainly do. In native title, that has a particular resonance given the impact which both the making of an application itself as well as a determination of native title has on the ability of a person who has an interest in land freely to deal with that land, as such a person otherwise could have subject to restrictions in statute, prior to the decision of the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1 and more, particularly, so far as pastoralists are concerned, prior to the High Court’s decision in Wik. That underscores the importance for pastoralists who wish to have a case tried of having that case tried.

10    It is singularly important in those circumstances also, that the Executive Government take into account, where a pastoralist wishes to have a case go to trial, that applicants who have a reasonable basis for a claim have an ability to prosecute that claim. There are particularly important considerations which arise in this case in relation to the management of native title cases generally. It would, with respect, be a betrayal by the Executive Government of applicants funded to take a case to the point of investigation, disclosing through anthropological evidence a basis of opinion evidence upon which a claim might reasonably be prosecuted for these applicants, to be left in the invidious position of not being able to prosecute that claim when a respondent also possessed of a reasonable foundation for a defence chooses, as it is entitled, to have a case tried. That has particular ramifications, in terms of the efficient disposition of native title cases generally by consensual resolution, if it becomes known that respondents who press a case will inevitably see a case for which a reasonable basis exists discontinued by an applicant left bereft of funds by the Executive government. Of course, with such funding by the Executive for applicants comes a singular responsibility not to abuse that privilege in terms of the prosecution of unmeritorious claims or a failure to make reasonable concessions in the face of reasonable challenge by respondents. All of these are factors which I take into account in relation to whether or not to adjourn the trial, in effect, indefinitely, until after the conduct of mediation.

11    Another factor peculiar to my knowledge of the likelihoods in relation to listings, having regard to other work in this registry, is that, were I to adopt the course propounded by the applicant, which is not to fix new trial dates but rather to suspend the fixing of trial dates and associated directions until after mediation, as proposed by the applicant, has occurred, is that in all likelihood that would see a trial not able to be heard in 2013 but rather at some stage in 2014, and all that against the background of an applicant who promoted a trial, as a sequel to the last regional call over, in terms of agreeing to orders in respect of a trial, without earlier voicing the present apprehension as to funding.

12    The parties have made reference to some authorities in relation to case management. Reference has been made to an earlier judgment of mine, Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2011] FCA 472 at para 14, in which I make the following statement:

Parliament has conferred a considerable privilege on those who have not yet vindicated a claim for native title by allowing agreements to be made. The price of that privilege, in my opinion, is the prosecution of a native title claim in this Court. If it is not prosecuted with due diligence, it should be struck out for the privilege Parliament has conferred is being, or at least may be, abused.

I adhere to those remarks.

13    Also referred to was a judgment of McKerracher J in a non-native title case, Hanna v Australian Securities and Investment Commission [2011] FCA 1077, where, at para 13, his Honour adopts observations made extra judicially by Rares J in a paper entitled Alternative Dispute Resolution in the Federal Court of Australia, published as part of the Law Council’s Federal Litigation Section Newsletter, Chapter 3, July 2009. Like McKerracher J, I find much wisdom in the observations made there by Rares J and I take those considerations into account both as to the importance of consent and as to whether there is a right time for mediation. The long and the short of it is that, so far as whether there is a right time, there is a necessarily case specific focus for that. Here, the right time for mediation may well have been many years ago. It is certainly the case that there is a right time now, but that was provided for in the orders of 3 October. Upon reflection, the applicant is promoting an alternative time. It is to be regretted that the reflection evident in the alternatives put forward by the applicant were not put forward earlier. I can see much merit, as I would have for that matter on 3 October, in the alternatives, or at least the revisions, which are put forward. The proposed revised orders in respect of mediation and the provision for an agreed statement make much sense to me.

14    What I do not find compelling in any way is the idea, also part of the application this morning, that the balance of the directions made should simply be suspended.

15    In short then, taking into account all of the considerations which I have mentioned, I am not persuaded that the trial dates should be vacated without there being fresh and meaningful trial dates fixed. I expect that once that is done, it should be possible for the parties, given the evident goodwill and attention to professional responsibility which has hitherto attended this case, for them to reach agreement in respect of most, if not all, of the pre-trial steps guided by the knowledge as to steps that were regarded on 3 October as desirable, as reflected in the orders made that day.

Associate:

Dated:    21 December 2012