FEDERAL COURT OF AUSTRALIA

Levinge on behalf of the Gold Coast Native Title Group v State of Queensland [2013] FCA 634

THE COURT ORDERS THAT:

1.    The parties provide short minutes of order to give effect to the reasons for judgment given today.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    On 2 February 2012, Reeves J, by consent, fixed the trial of this application for a determination of native title, under s 225 of the Native Title Act 1993 (Cth), to commence on 3 June 2013. After a history of default by the applicant, that I will describe in a little more detail shortly, the State of Queensland filed an interlocutory application on 12 April 2013 seeking an order under r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) that the proceedings be dismissed immediately. The State of New South Wales supported Queensland’s application. Queensland amended its application today to seek an order that a part of the proceeding not covered by freehold grant tenure material that it has filed, which I will also describe shortly, be dismissed immediately.

2    On 29 April 2013, I ordered that Queensland’s interlocutory application be adjourned part heard to the commencement of the trial. In light of the long history of applications in respect of the claim area, I raised the issue of whether the Court should make a determination under s 225 that no native title exists in respect of the area the subject of the application. On 21 May 2013, Queensland had indicated in its further written submissions that it sought the amended orders identified in its amended interlocutory application filed today. The State also sought a determination that no native title exists over freehold lands and waters identified in the tenure material tendered today in the trial. That material covered a large part, but not all, of the lands and waters within the area the subject of the application under s 225. Queensland also sought that its costs thrown away, by reason of the applicant’s failure to prosecute its claim, be paid by individual named members of the applicant.

The issues

3    Thus, the issues for consideration are whether:

(1)    the application should be adjourned, discontinued or dismissed either summarily or on a final basis;

(2)    any determination should be made under s 225 of the Act that native title does not exist over areas of freehold land in the Queensland part of the application;

(3)    the applicant should be ordered to pay Queensland’s costs thrown away, subject to a stay of those orders which Queensland so seeks .

The legislative scheme

4    The Court has jurisdiction, under s 81 of the Act, to hear and determine applications filed in it that relate to native title and that jurisdiction is exclusive of all other courts except the High Court. Relevantly, native title cannot be extinguished contrary to the Act (s 11(1)). Importantly, s 13(1), (3), (4) and (5) provide:

“13    Approved determinations of native title

Applications to Federal Court

(1)    An application may be made to the Federal Court under Part 3:

(a)    for a determination of native title in relation to an area for which there is no approved determination of native title; or

(b)    to revoke or vary an approved determination of native title on the grounds set out in subsection (5).

...

Approved determinations of native title

(3)    Subject to subsection (4), each of the following is an approved determination of native title:

(a)    a determination of native title made on an application under paragraph (1)(a) or in accordance with subsection (2);

(b)    an order, judgment or other decision of a recognised State/Territory body that involves a determination of native title in relation to an area within the jurisdictional limits of the State or Territory.

Variation or revocation of determinations

(4)    If an approved determination of native title is varied or revoked on the grounds set out in subsection (5) by:

(a)    the Federal Court, in determining an application under Part 3; or

(b)    a recognised State/Territory body in an order, judgment or other decision;

then:

(c)    in the case of a variation – the determination as varied becomes an approved determination of native title in place of the original; and

(d)    in the case of a revocation – the determination is no longer an approved determination of native title.

Grounds for variation or revocation

(5)    For the purposes of subsection (4), the grounds for variation or revocation of an approved determination of native title are:

(a)    that events have taken place since the determination was made that have caused the determination no longer to be correct; or

(b)    that the interests of justice require the variation or revocation of the determination.” (emphasis in original)

5    An application to revoke or vary an approved determination of native title on the grounds set out in s 13(5) can only be made by the registered native title body corporate, the Commonwealth Minister or the State or Territory Minister in relation to an area within that Minister’s jurisdictional limits or the Native Title Registrar (see s 61(1)).

6    Section 225 provides:

“225 Determination of native title

A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:

(a)    who the persons, or each group of persons, holding the common or group rights comprising the native title are; and

(b)    the nature and extent of the native title rights and interests in relation to the determination area; and

(c)    the nature and extent of any other interests in relation to the determination area; and

(d)    the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and

(e)    to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease – whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.

Note:    The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests.” (emphasis in original)

7    Additionally, ss 47, 47A and 47B provide for exceptions to the general principle that the Act recognises, namely, that valid acts, inconsistent with the existence of native title, such as the grant by a government to a third party of a freehold interest in land or waters will extinguish native title over the lands, waters or interests affected. The exceptions in ss 47, 47A and 47B are, broadly speaking, intended to preserve the right to claim native title over pastoral leases (s 47), freehold or leasehold interests (s 47A) and certain areas occupied by one or more members of a claim group (s 47B) in unalienated State or Crown lands. The first two exceptions operate when the lands or waters are held by, or on behalf of, the claim group or any of its members or by a company in which any of those members is a shareholder. Under Divs 2A and 2B of Pt 2 of the Act, certain acts attributable to the Commonwealth, a State or a Territory, such as the creation of freehold estates or leases that confer exclusive possession, either are taken to have extinguished native title or permit an extinguishment to be validated or confirmed by legislation, such as the Native Title (Queensland) Act 1993 (Qld). Such acts are defined in s 23A(2) as “… previous exclusive possession acts”.

8    Finally, s 85A provides:

“85A    Costs

(1)    Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2)    Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first‑mentioned party to pay some or all of those costs.”

The nature of the claim

9    The amended application filed on 13 May 2010 described a very large area as being within the boundaries of the claim in attachment B. A map of the claim area in schedule C showed that it extended in Queensland, from the Logan River in the north, along the coast, over the region known as the Gold Coast, down to the Tweed River in New South Wales in the south. It includes several of the Southern Moreton Bay Islands, including South Stradbroke Island. The area includes land around Tweed Heads in New South Wales and extends west to the Tamborine and Numinbah Valleys, near the Great Dividing Range. Attachment B and the map in schedule C of the form 1 application did not identify, as excluded from the claim, any part of what is a densely populated, well developed area, comprising the Gold Coast and Tweed Heads. However, schedule B in the form 1 application commenced with a generalised and unspecific statement in paragraph 1 and expressed qualifications on that in paragraphs 5 and 6:

“Areas within the boundary identified in Attachment B that are not covered by the application:

1.    The area covered by the application excludes any land or waters that is or has been covered by:

(a)    a Scheduled Interest;

(b)    a freehold estate;

(c)    a commercial lease that is neither an agricultural lease nor a pastoral lease;

(d)    an exclusive agricultural lease or an exclusive pastoral lease;

(e)    a residential lease;

(f)    a community purpose lease;

(g)    a lease dissected from a mining lease and referred to in s 23B(2)(c)(vii) of the Native Title Act 1993 (Cth);

(h)    any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.

…

5.    Where an act specified in paragraphs 1, 2 and 3 affects or affected land or waters referred to in:

•    s 47 – Pastoral leases etc covered by claimant application;

•    s 47A – Reserves etc covered by claimant application;

•    s 47B – Vacant Crown land covered by claimant application, the area covered by the act is not excluded from the application.

6.    The area covered by the application excludes land or waters where the native title rights and interests claimed have been otherwise extinguished.”

10     On 5 September 2006, the applicant commenced these proceedings for a determination of native title under s 225, pursuant to an authorisation by the Gold Coast Native Title Claim Group. The application was amended twice, on 6 July 2007 and 13 May 2010. It was registered under the Act on 23 September 2010 and the notification period, under s 66, concluded on 28 February 2011.

11    On 2 February 2012, Reeves J made detailed orders by consent that fixed the trial to commence today, on 3 June 2013. The orders provided for the parties to exchange evidence and prepare the matter for hearing. They also provided for the parties to discuss the possibility of a non-native title resolution. Further consent orders were made on 31 May 2012. The applicant on these occasions was represented by counsel and solicitors. In the orders made on 2 February 2012, and repeated in the orders of 31 May 2012, the Court ordered by consent that:

    on or before 4 May 2012, Queensland file an index together with supporting documentation of, first, deeds of freehold grant relevant to a very large part of the claim area on the Moreton 2 Mile Map sheet dated June 1912 with relevant supporting materials and, secondly, vacant crown land or unallocated State land to which ss 47, 47A or 47B of the Act potentially applied as at the date of the claim;

    on or before 31 October 2012, the applicant file a notice identifying any part of the area within the external boundaries of the claim in respect of which it asserted the application of ss 47, 47A or 47B, together with the particulars of the basis of such an assertion in respect of each area. No such notice was filed, and it follows that no claim was asserted;

    if no party filed a notice of objection to the indicative tenure material filed by Queensland, then the areas of land so identified by it would be deemed to be areas not covered by the application, and Queensland would not be required to file any further tenure material with respect to those areas.

12    After the process for discussion of a non-native title resolution had been exhausted, the applicant failed to comply on 27 July 2012 with the first order to ready the matter for trial because it did not file points of claim by that time.

13    On 9 August 2012, the applicant filed an interlocutory application seeking, first, to vacate the trial dates and, secondly, an extension of seven months for its compliance with the consent orders for the preparation of the matter for trial. That application was based on the applicant’s assertion that it lacked the resources necessary to prepare the matter for trial. On 16 August 2012, Reeves J dismissed that application.

14    Next, on 18 September 2012, the applicant filed an interlocutory application seeking leave to discontinue the proceedings. The applicant, again, relied on its lack of resources to prepare for and conduct the trial.

15    On 23 November 2012, Reeves J dismissed that application in a reserved decision: Levinge v Queensland (2012) 208 FCR 98. His Honour explained he had exercised his discretion to reject the application because there was no evidence that the applicant had informed the claim group about it or sought its views on the discontinuance (208 FCR at 99 [1]). His Honour set out in his reasons the substantive history of this and three prior claims that had been made concerning the Gold Coast over the past 16 years (208 FCR at 100-103 [2]-[20]). I need not repeat those findings here but I will treat them as part of the factual history of these applications for the purpose of these reasons.

16    On 17 December 2012, his Honour suspended the existing orders for the preparation of the matter for trial but ordered the applicant to file points of claim on all issues except extinguishment by 18 January 2013 and the States to file their responses by 8 February 2013. Those steps were completed when Queensland filed its response on 11 February 2013.

17    On 11 February 2013, the applicant, which was by then self-represented, wrote to each of the States advising it would not be in a position to participate constructively in the trial fixed for 3 June 2013. On the next day, Reeves J made orders varying the timetable so that all proposed lay and expert evidence-in-chief relied on by all parties would be served in sufficient time that each party would have an adequate notice of the cases they had to meet prior to the commencement of the trial on 3 June 2013.

18    On 28 February 2013, after the matter came into my docket, I ordered that all issues would be heard at the trial, including extinguishment. The parties subsequently agreed on consequential amendments to the procedural orders in the pre-trial timetable.

19    On 11 and 15 February 2013, the Crown Solicitor for New South Wales wrote to the applicant and on 26 March 2013, the Crown Solicitor for Queensland also wrote to the applicant. Each of those letters inquired about the applicant’s position as stated in its letter dated 11 February 2013 that the claim group would “… not be in a position to participate in a hearing on or around 3 June 2013”. The Crown Solicitors’ letters asked whether the applicant intended to prosecute the application, having regard to the costs that each State was incurring in preparing for trial.

20    On 27 March 2013, the applicant wrote to the Deputy Registrar in relation to draft orders that the parties had circulated to update steps to be taken in preparing for the trial. The applicant’s letter stated that:

    the current claim had been on foot since 2006 and at the present time, the resources available to support it were very limited;

    “the business supporting the claim” could not engage legal and professional support, because to do so would expose its directors to risks relating to insolvency;

    directions I had given concerning the trial, dealing with all matters, would require:

“… a substantial discussion regarding a very large number of parcels of land. This is at odds with the claimant group’s interest in only a small number of select parcels.”

    the applicant, again, sought a non-native title resolution asserting that “our interest is in only a handful of parcels of land”.

    the applicant was not in a position to participate constructively in the trial. (emphasis added)

21    Despite the assertions that the application was only in respect of “a small number of select parcels of land”, the applicant did not identify those parcels in its letter of 27 March 2013 nor did it do so at any other stage in the proceedings at any time, including up to today.

22    On 5 April 2013, Dowsett J made orders that, among other matters, recorded steps that had and had not occurred, in accordance with the procedural orders in the pre-trial timetable. His Honour’s orders noted that:

    each of Queensland and New South Wales had filed an index that identified, first, freehold land in the claim area and, secondly, vacant Crown land or Crown land that was otherwise available for claim of native title, pursuant to ss 47, 47A or 47B of the Act (the States’ indicative tenure material);

    no party, including the applicant, had filed an objection in response to the States’ indicative tenure material in respect of any freehold or a notice in respect of any ss 47, 47A or 47B claim in accordance with orders that any such objection or notice be filed;

    in consequence the lands and waters identified in the States’ indicative tenure material as freehold or available for a claim of native title, pursuant to ss 47, 47A or 47B, were not covered by the application;

    the applicant had not filed any lay or expert evidence on or before 27 March 2013, as the pre-trial timetable orders had required.

23    Dowsett J also granted leave to any party to file an interlocutory application by 12 April 2013, seeking that the proceedings be dismissed, and ordered that if this occurred, the further timetabling orders to prepare the matter for trial would be suspended pending further order.

24    As a result of that grant of leave, on 12 April 2013, Queensland filed its interlocutory application seeking that the proceedings be dismissed immediately. There is no dispute that the applicant is in default for the purposes of r 5.23(1)(b)(i).

25    On 6 and 10 April 2013, the representative body, Queensland South Native Title Services Limited (QSNTS), notified and advertised meetings of the claim group to be held in Nerang on 28 April 2013. The proposed business of the meeting was to report on progress of the claim and intentions as to its future prosecution; to consider the issues of authorisation of the applicant and its replacement; and to discuss the possible discontinuance of the proceedings and what instructions should be given to the applicant. The meeting took place on 28 April 2013 and about 75 members of the claim group attended. The meeting, without dissent, resolved that QSNTS be instructed to act for the sole purpose of seeking that the proceedings be discontinued or dismissed.

26    When Queensland’s interlocutory application was returned for hearing on 29 April 2013, the applicant’s solicitor made an oral application for leave to discontinue, and relied on his affidavit of the same date as to the conduct of the meeting held on 28 April 2013. I raised the question at that hearing of whether, in light of the 16-year history of the unprosecuted claims over the claim area and the existence of the States’ indicative tenure material, it would be appropriate to resolve at the trial today, on the final basis, that native title did not exist in respect of the area the subject of the application under s 225 for a determination of native title. I ordered that no further evidence be filed by the applicant without the leave of the Court. I adjourned the interlocutory applications of Queensland and the applicant to the commencement of the trial today, and directed that the parties could file submissions addressing the potential means of disposing of the proceedings and any conditions that the Court should impose in relation to any discontinuance or summary dismissal. The applicant subsequently formalised its oral interlocutory application for leave to discontinue in writing. The applicant, both States and the Commonwealth filed detailed written submissions. In addition, the applicant has filed a number of affidavits seeking to address the potential consequences of orders for dismissal, a determination that no native title exists and costs.

The applicant’s evidence

27    The chief executive officer of QSNTS, Kevin Smith, stated in his affidavit of 27 May 2013 that the representative body had initiated a research project in September 2010. The aim of the project was to identify the claim groups that had native title claims in the area for which QSNTS was responsible, including the Gold Coast, and to identify the lands and waters the subject of those claims. QSNTS had already committed about $500,000 to the project and had budgeted to spend about $290,000 on it in the 2013/2014 financial year. It had engaged an historian, a genealogist and an anthropologist to work on the project. Mr Smith deposed that preliminary research had raised concerns that the current claim group in these proceedings might not be properly described. He said he had made a commitment, as chief executive officer, to assist in the forming of a correct native title claimant application for the Gold Coast region within the next 12 months.

28    QSNTS also filed affidavits made in respect of five of the applicants, namely Ian Levinge, Earl Sandy, Eileen Williams (who was significantly incapacitated by a stroke that she suffered three years ago), Kevin Slabb and Jacqueline McDonald. Those affidavits stated that none of those persons was in a position to meet a costs order due to their necessitous circumstances and that he or she would not have commenced the proceedings had the risk of a costs order being made against him or her been appreciated.

29    In addition, QSNTS has also filed an affidavit by Robyn Currie, who was a member of the claim group. She said that she was a Mununjali elder and that although most people who identified as Mununjali were descendants of one or more apical ancestors in the description of the claim group, traditional Mununjali country was not within the Gold Coast area. She said that a meeting of Mununjali elders occurred on 12 March 2013, at which Mr Smith and QSNTS’ principal legal officer, Tim Wishart, attended. She said that the persons who were members of the applicant had been invited but had not attended. Ms Currie said that the Mununjali elders were concerned because of the lack of information given to them by the applicant about the Gold Coast claim group. She said that she had not received any formal information or communication about the claim since early 2011. Mr Smith told the meeting that the claim was being prosecuted and the trial was fixed for 3 June 2013. Ms Currie said she was surprised by this information, and the other elders also appeared to be unaware of the trial date. She said she had been concerned to learn from Mr Smith of the imminence of the trial in the proceedings. Ms Currie asserted that on learning from Mr Smith of the previous application to discontinue, she also became concerned about “the impact on our native title rights and interests.” The Mununjali elders asked QSNTS to assist them to convene a meeting of the claim group.

30    Ms Currie attended at the meeting of the claim group on 28 April 2013 and thought that it was conducted appropriately. However, she said that the members of the applicant had not explained the reasons why the claim had not been prosecuted properly, “and why we were in this situation.” She said that Mr Smith had explained that Queensland had applied for the proceedings to be dismissed and the consequences if it were. Ms Currie asserted that the claim group was most concerned that there could be findings that native title did not exist. She said she was concerned that the Mununjali people might never have an opportunity to have their native title rights and interests recognised as a result of the applicant’s failure to prosecute these proceedings properly. She asserted they had never been advised that Queensland had filed its indicative tenure material and had never seen it or been able to seek legal advice about it. Notably, Ms Currie did not explain what significance these matters had in light of her acceptance that the traditional Mununjali country was not within the claim area.

31    Last, QSNTS filed an affidavit of Rory O’Connor sworn on 31 May 2013. Mr O’Connor complained about the way in which the applicant had conducted the proceedings. He also attended the meeting in Nerang on 28 April 2013 and gave similar evidence to Ms Currie about the conduct of the meeting and his knowledge of the State’s indicative tenure material.

The parties’ submissions

32    The applicant argued that it should be granted leave to discontinue unconditionally. It contended, and the Government parties also noted, that the evidentiary position concerning the applicant’s communications with and instructions from the claim group had changed materially in relation to the basis on which Reeves J had refused to allow the applicant to discontinue in the earlier application (see 208 FCR at 99 [1]). The evidence now showed that the claim group had resolved at the 28 April 2013 meeting to seek to discontinue or to have the proceedings dismissed summarily. The applicant submitted that the interests of justice did not require the proceedings to be dismissed. It contended that it should have autonomy in bringing the proceedings to an end, in its own way, by discontinuance. It contended that none of the other parties had sought orders preventing the applicant from re-litigating. It argued that until today, Queensland had not sought that an order be made that no native title existed over the areas the subject of freehold grants in its indicative tenure material.

33    The applicant accepted that its failure to prosecute the proceedings “is in contrast with the overarching purpose prescribed in ss 37M and 37N of the [Federal Court of Australia Act 1976 (Cth)]” (the Federal Court Act). It accepted that the Court had an unfettered discretion as to whether it would grant leave to discontinue or otherwise dismiss the proceedings. It submitted that no prejudice to anyone had been established, or would be suffered, if it were granted leave to discontinue as it sought. The applicant accepted that it had failed to comply with Court orders on a number of occasions and that, as a result, there had been multiple amendments to the pre-trial timetable orders for the purposes of preparing the matter for hearing. The applicant also argued that a determination that native title did not exist would lock it into the status of “the last ones standing” for the purposes of exercising rights under ss 34 and 35 of the Aboriginal and Cultural Heritage Act 2003 (Qld).

34    The applicant also argued that before a costs order could be made, the Court ought to find that the party ordered to pay the costs had acted unreasonably within the meaning of s 85A(2) of the Act. However, the applicant accepted that s 85A(1) of the Act gave the Court a discretion to order costs. But, it contended that a decision merely to withdraw from the course of litigation was insufficient to invoke the exercise of the discretion. It referred to several occasions on which, since mid-2012, it had advised the parties and the Court that it was unable to prosecute the proceedings. The applicant contended it had not caused Queensland to incur substantial costs “beyond the normal costs incurred in native title proceedings which they would be entitled to recover because of the prima facie rule in s 85A(1) … that each party bear their own costs.”

35    Queensland relied on the protracted history of this and the three earlier applications for determinations of native title, albeit the second one was for a small area omitted from, and later amalgamated with, the first such application. During 2010 and 2011, the applicant provided connection materials to the States and held discussions with them about the adequacy of those materials. Queensland noted it had informed the Court on 15 December 2011 that it did not consider that that material sufficiently supported the applicant’s claim. The State noted that the 2 February 2012 orders were made by consent, after consultation between counsel and the solicitors then acting for the applicant, and the legal representatives of both States. The State relied on the unchallenged findings of Reeves J as to the circumstances in which his Honour refused the application for leave to discontinue. It submitted that although the applicant had no obligation under any order to object to the State’s indicative tenure material once served, no objection had been made to any of that material and no party, including the applicant, had identified any land in areas of claimed freehold that ought be treated as being affected potentially by rights under ss 47, 47A and 47B.

36    Queensland argued the power to dismiss proceedings based on a default conferred by r 5.23 should be exercised, having regard to the principles discussed by Wilcox and Gummow JJ for the exercise of an analogous power in Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 395-397. However, it accepted that in native title cases, the power to dismiss for default or summarily must be exercised with caution. It also argued that ss 37M and 37N of the Federal Court Act imposed an obligation on the parties to conduct the proceedings consistently with the overarching purpose of facilitating the just resolution of the dispute according to law, as quickly, inexpensively and efficiently as possible.

37    Both States relied on the applicant’s history of defaults. On two occasions in 2012, the applicant had failed to file its points of claim at all. On two other occasions, it failed to file any lay or expert evidence in accordance with orders, and this omission continued until 29 April 2013 despite the imminence of the trial date. The States disputed the applicant’s contention that it had not misled the Court or them as to its ability to proceed to trial prior to making its application to vary the timetable on 9 August 2012. The applicant had noted in its submissions that it had formally informed the Court and the parties of its inability by seeking an extension of the timetable and the vacation of trial date on 9 August 2012, by subsequently seeking leave to discontinue on 18 September 2012 and in correspondence in February and March 2013. However, the States contended that on 31 May 2012, the applicant had participated in a variation of the pre-trial timetable without suggesting any possibility that it would not proceed to trial. The States drew attention to the unsatisfactory way in which the applicant has conducted the litigation since them.

38    Moreover, the States argued that, despite the assertion in the applicant’s letter to the Deputy Registrar of 27 March 2013, the claim concerned only “a small number of select parcels”, the applicant has never identified what those parcels were. They contended that the history of defaults and the applicant’s own admissions in its correspondence and statements to the Court demonstrated it was not willing to prosecute its claim.

39     Queensland opposed the new application to discontinue on the basis that an order for default or summary dismissal was more appropriate. New South Wales neither consented to, nor opposed, the new application to discontinue, but it submitted that an order for default or summary dismissal was more appropriate. The latter order would demonstrate that the applicant’s claim had been dismissed because of its default and unwillingness or inability to prosecute the proceedings. They argued that a default or summary dismissal of the proceedings would not create a res judicata or issue estoppel under the Act. The States argued that dismissal for default was the preferable course, as opposed to permitting a discontinuance. But today, the States did not oppose the making of a final order dismissing the proceedings, as suggested by me.

40    Queensland sought orders, in its submissions dated 21 May 2013, for a determination that native title did not exist over the freehold areas identified in its indicative tenure materials on the basis that the applicant had not objected to any of that land being treated as unavailable for a determination of native title in accordance with its right, but not obligation, to do so.

41    New South Wales submitted, that the effect of a default or summary dismissal, or for that matter a dismissal on a final basis, would be to remove the applicant’s status as a party to a claim on the Native Title Register under ss 189A(b) and 190 (4)(d) of the Act. It contended that this would result in removal of the applicant’s status to negotiate future acts under the Act.

42    Queensland contended there was a public interest in the finality of litigation. It argued that the previous exclusive possession acts regime in Div 2B of Pt 2 of the Act would apply to areas of freehold land identified and land that it had identified as capable of being subject to native title pursuant to ss 47, 47A and 47B. However, no party had filed any notice pursuant to the orders made on 2 February 2012 and 31 May 2012 that asserted any native title claim under any of ss 47, 47A or 47B. In any event, Queensland did not seek any orders in relation to the areas identified by it in a map that became exhibit Q3 that fell potentially within s 47B of the Act. Queensland submitted that the freehold land and land potentially available for a determination of native title under ss 47 and 47A was about 85% of the claim area. The State contended that since the applicant had not objected, or responded, to its indicative tenure material, a determination should be made under s 225 that no native title exists over those freehold lands and waters identified in that material. It referred to the observations made by Reeves J in Levinge 208 FCR at 111-112 [54] concerning the public interest in ending the uncertainty as to the status of land titles in the very large claim area that had been unsettled by the four claims made over it in the past 16 years.

43    Each of Queensland, New South Wales and the Commonwealth submitted that no order should be made that would have the effect of extinguishing native title over any lands or waters not included in Queensland’s indicative tenure material. These arguments were based on the difficulty that, by force of s 61 of the Act, if a determination were made that native title did not exist over any lands and waters in the claim area a future applicant would have no standing or right to seek a revocation or variation of that determination under s 13(5). They argued that if a future applicant sought to make such a challenge it would need to persuade the Commonwealth or a State Minister to bring it.

44    New South Wales and the Commonwealth, with the support of the applicant, also originally argued that no order, determination or declaration as to the status of lands or waters in the claim area should be made in disposing of the proceedings because such an order would operate in rem against all the world. However, today it became clear that the submissions of New South Wales and the Commonwealth were directed to the areas in which there was uncertainty in relation to the application of s 47B and the areas identified as potentially freehold in New South Wales’ indicative tenure material. New South Wales said that the material it had filed went no further than being merely indicative.

45    In contrast, Queensland’s indicative tenure material actually proved the existence of the freehold grants made over the lands and waters in the claim area which appear to be, at the moment, completely uncontentious.

46    Queensland also sought an additional order that the applicant pay the State’s costs thrown away by reason of its failure to prosecute the proceedings. It also submitted that such an order should be stayed so that it could be re-enlivened if and when it became appropriate to seek to enforce it, having regard to any future claim that might be brought.

47    The applicant relied on the fact that no anthropological evidence has been filed on which to assess the claim and argued that accordingly no determination should be made that native title had been extinguished in the areas identified as freehold in Queensland’s indicative tenure material.

48    The applicant belatedly submitted in written submissions in reply that: “Largely, State of Queensland seek a determination in respect of a matter that is not even in dispute. The Form 1 excludes from the claim most of what they seek.” However, as I have said, the applicant has never identified, even in submissions today, which lands or waters precisely were in dispute and which were not.

Consideration – Are a discontinuance and dismissal for default appropriate?

49    I am of opinion that it would not be appropriate to grant leave to the applicant to discontinue the proceedings, having regard to its history of default and failure to prosecute the proceedings. The Court has a clear, unfettered discretion whether to grant a party leave to discontinue: Visy Board Pty Ltd v Attorney-General (Cth) (1984) 2 FCR 113 at 142-143 per Sweeney J, 162 per Lockhart J, and 184-185 per Sheppard J. If the applicant were granted leave to discontinue, it could commence fresh proceedings over the same subject matter as and when it chose. The applicant has had a full opportunity to litigate its claim in these proceedings over the seven years that they have been on foot. It would be contrary to the interests of justice, the parties and the community to allow it to begin afresh. Indeed, if the applicant were free to do so and commenced again, that conduct would bring the administration of justice into disrepute among right-thinking people: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; Jeffrey & Katauskas Pty Limited v SST Consulting Pty Ltd (2009) 239 CLR 75 at 93-94 [28] per French CJ, Gummow, Hayne and Crennan JJ.

50    For similar reasons, this is not a case in which the Court should make an order dismissing the proceedings on the basis of the applicant’s defaults or failures properly to prosecute its claim. Such a dismissal would also allow the applicant the ability to commence afresh. That would be contrary to the interests of justice, the parties and the community for the reasons to which I referred above. The applicant has had every opportunity to present its claim. Its asserted present lack of resources is not a sufficient reason to permit this litigant the ability, at some time in the future, to resurrect an unadjudicated claim that would have occupied the resources of the Court, the parties and the public for seven years with no resolution of any issue: see Lenijamar at 27 FCR 396-397.

Consideration – Should a determination be made that no native title exists?

51    I am of opinion that the proper course to adopt in these proceedings is to dismiss them on a final basis. On 2 February 2012, by consent, the trial was fixed to commence on 3 June 2013. That occurred 16 months before today. The applicant has neither served nor led any evidence at all in support of its claim for a determination. That position now exists despite the applicant being given a number of opportunities to comply with previous orders to file its lay and expert evidence, and after it informed the Court that it did not propose to do so.

52    Litigation is a serious matter. It should not be commenced unless the party bringing it intends to prosecute it to finality. That does not preclude the commencing party from seeking to negotiate a consensual resolution. The public resource of the availability of the Court to hear and determine disputes, and the invocation of its power to join and compel the participation of other parties in the resolution of disputes are now reinforced and affected by the overarching purpose in Pt VB of the Federal Court Act.

53    The juridical foundation of the courts, as the third arm of government, is to provide certainty to litigants and the community by resolving controversies as to the legal rights and liabilities that are made the subject matter of litigation. In some instances that subject matter is a right in rem involving the status of a person (such as in questions concerning the validity of a marriage, legitimacy or parentage of a child or bankruptcy) or of land or property (such as the issue of title to land or its planning status or the incorporation of a company) or of legislation (such as the validity of parliamentary or delegated legislation or an act done under legislation that affects the public): see e.g. R v Hampton (the Ship Money Case) (1637) 3 State Trials 826; P E Bakers Pty Ltd v Yehuda (1988) 13 NSWLR 427 at 442A-446G per Hope JA with whom Samuels and McHugh JJA agreed: cf too Wilson v Anderson (2002) 213 CLR 401 at 427 [36] per Gaudron, Gummow and Hayne JJ and Western Australia v Ward (2000) 99 FCR 316 at 368-369 [190] per Beaumont and von Doussa JJ.

54    These proceedings concern the third substantive native title claim brought over the Gold Coast area. They have been on foot for seven years. They have perpetuated the uncertainty which was left unresolved by the earlier undetermined proceedings extending back over a total of 16 years. In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 217-218 [112]-[114] Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

“A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy [Jolowicz, On Civil Procedure (2000) p 79]. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a “just resolution” of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward.” (original italic emphasis; bold emphasis added)

55    The rule to which their Honours referred is analogous to the provisions of s 37M of the Federal Court Act. Here, the Court had set aside three weeks for the trial of these proceedings. It had engaged in numerous pre-trial and interlocutory proceedings and the framing of orders, all of which have failed to bring these proceedings to trial on the substantive merits, other than in the way it has proceeded today.

56    Although an order dismissing the proceedings after a final hearing will not necessarily include a determination as to the existence or non-existence of native title over the claim area, such a dismissal will create a res judicata preventing the present applicant from bringing any further proceedings on the same subject matter. That will be because an order dismissing the proceedings will affect the status of the applicant to prosecute an application for a determination of native title under s 225. Its rights to bring such an application will have merged in the order for dismissal. The order will amount to a rejection of that status: Blair v Curran (1939) 62 CLR 464 at 531-533 per Dixon J.

57    The orders made on 31 May 2012 (amending or repeating the orders made on 2 February 2012) provided that the areas identified in the indicative tenure material filed by Queensland as freehold and as not being subject to ss 47, 47A and 47B would be deemed to be areas not covered by the application. That would be consistent with the general, unparticularised exclusion of lands and waters of that description in the form 1 application. However, the only reason for that exclusion was that native title could not exist over such land because it had been extinguished by the grant of freehold and no other basis for the continued existence of any native title rights and interests existed under ss 47, 47A and 47B. Because Queensland does not seek to exclude any lands or waters in exhibit Q3 to which s 47B may apply, it is unnecessary to consider those lands or waters.

58    Queensland tendered in the trial its indicative tenure material to prove the actual grants of freehold land that have been made over about 85% of the claim area. That material had been provided to the applicant, which was then legally represented, by 21 June 2012 pursuant to the orders made by the Court. That material demonstrated, because it included the actual grants of freehold title, that a very large part of the claim area was subject to grants of freehold. The grants of freehold must have extinguished native title over the lands and waters concerned: Fejo v Northern Territory (1998) 195 CLR 96 at 126 [42] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

59    Queensland argued that in those circumstances, and the absence of any suggestion by the applicant or any other person that any interests arise under ss 47 or 47A, and with the exception of potential rights under s 47B in the area covered by exhibit Q3, the Court ought make a determination under s 225 that no native title exists over the areas of freehold land in resolving these proceedings on a final basis. In my opinion, that submission is correct and it is appropriate to make such a determination. In Wilson 213 CLR at 427 [36] Gaudron, Gummow and Hayne JJ, with whose orders Gleeson CJ agreed, held:

“In some circumstances it is possible to determine issues of extinguishment in advance of findings as to the existence and content of the anterior native title rights and interests in question. One such example is where the extinguishing act relied upon is the grant of an estate in fee simple or of a common law lease. The grant of a fee simple extinguishes all native title rights that may exist in relation to the land the subject of the grant. This is so because the estate of fee simple “does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title” [Fejo v Northern Territory (1998) 195 CLR 96 at 126 [42]]. The same reasoning applies to the grant of a common law leasehold estate [Yanner v Eaton (1999) 201 CLR 351 at 395-396 [108]]. In both instances “the comprehensiveness of the grant precludes any question of partial extinguishment [Yanner v Eaton (1999) 201 CLR 351 at 396 [108]].” (emphasis added)

60    I am satisfied that the uncontested freehold land indicative tenure material filed by Queensland, comprising as it does the actual grants of freehold by or on behalf of the State, should be accepted as establishing that native title has been extinguished over those lands and waters in the claim area for the purposes of s 225(c) of the Act: Fejo 195 CLR at 126 [43]; Wilson 231 CLR at 427 [36]; see too Daniel v Western Australia (2004) 138 FCR 254 at 262-263 [31]-[32] per RD Nicholson J.

Costs

61    In my opinion, the applicant’s defaults in these proceedings have been unreasonable. It agreed when legally represented, to a series of timetabling orders in early to mid 2012 and to an order for the trial to commence today. Subsequently, it failed at every point to comply with the Court’s orders made for the purposes of bringing the proceedings to resolution. Although in more recent times the applicant has asserted that it has lacked resources, that mere fact is not sufficient, in the circumstances, to warrant the Court declining to make an order as to costs.

62    The Court has power to order costs in proceedings before it pursuant to s 43 of the Federal Court Act. Section 43(2) provides, that except as provided by an Act, the award of costs is in the discretion of the Court. It is inappropriate to read provisions, such as s 43(2) of the Federal Court Act, that confer jurisdiction on or grant power to a court, as making conditions or imposing limitations that are not to be found in the words used in the statute: Oshlack v Richmond River Council (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ, and Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421; see also Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659 at [20]-[27] per Rares J.

63    The power under s 85A of the Act commences with a presumption that the parties in proceedings under the Act will bear their own costs. However, as the Full Court made clear in De Rose v South Australia (No 2) [2005] FCAFC 137 at [8]-[10], s 85A(1) was intended to remove any ground for anticipation or expectation that unless cause was shown for another order, costs would follow the event. Nonetheless, s 85A(1) acknowledges that the Court has an overriding discretion as to costs. It does not expressly impose a limit on the scope of that discretion. Wilcox, Sackville and Merkel JJ said that there was no requirement that a threshold condition be met before the Court is empowered to make a costs order. Thus, the exercise of the discretion under s 85A(1) does not require a finding of fact or formation of an opinion that there has been unreasonable conduct, or that special circumstances exist. However, their Honours held that s 85A(2) of the Act put beyond doubt the extent of the Court’s discretion in cases where a party had acted unreasonably. They said that provision did not control or limit the discretion available to the Court under s 85A(1), and held that the matters to be taken into account in making a costs order were left to the Court’s discretion, which had to be exercised judicially. The starting point was that each party would bear its own costs unless the Court determined it was appropriate in the circumstances to make an order for costs. They emphasised that the starting point was not that costs ordinarily followed the event, and followed what Lee J had said at first instance in Ward v Western Australia (1999) 93 FCR 305 at 311-312 [31]-[37].

64    Moreover, it is not proper to use the power to award costs either to reward a successful, or punish an unsuccessful party, or to use it to operate as a deterrent to other would-be applicants. I reject the applicant’s submission that the imposition of an order that it pay costs in the circumstances of this case could have the effect of punishment or deterrence.

65    I am satisfied that it would be appropriate to make an order of the kind sought by Queensland that the applicant pay Queensland’s costs thrown away by reason of the applicant’s failure properly to prosecute the proceedings, but to stay that order until further order. A stay is particularly appropriate having regard to the personal and financial circumstances of those members of the applicant, who put on evidence, and the fact that, at the moment, the State has achieved a significant and substantial outcome, namely a determination under s 225 that native title does not exist over the large areas of freehold land in its indicative title material. It will only be possible to ascertain what, if any, of Queensland’s costs were thrown away at a later stage if a claim is made in respect of the remaining areas of the present claim that could be the subject of a determination under the Act that native title exists.

66    I direct the parties to bring in short minutes of order to give effect to these reasons.

Associate:

Dated:    26 July 2013

SCHEDULE

QUD 346 OF 2006

BETWEEN:

IAN LEVINGE, EILEEN WILLIAMS, KEVIN SLABB, JACQUELINE McDONALD, BERNIE WILLIAMS, WESLEY AIRD and EARL SANDY

Applicant

AND: