FEDERAL COURT OF AUSTRALIA

West on behalf of the Wakka Wakka People #3 v State of Queensland [2014] FCA 176

THE COURT ORDERS THAT:

1.    The interlocutory application filed 29 August 2013 be dismissed.

THE COURT DIRECTS THAT:

1.    The parties endeavour to agree on programming orders to take the overlap between the native title claims in Wulli Wulli People #2 QUD 311 of 2011 and Wakka Wakka People #3 QUD 621 of 2011 to trial.

2.    The matter be listed for further directions at 9.30 am on 1 April 2014.

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

REASONS FOR JUDGMENT

1    Before me is an interlocutory application in a native title matter, whereby respondents Alice West, Robert Bond, Elizabeth Law and Christine Bosworth (“the respondents”) seek the native title applicant (“the applicant”) in the Wakka Wakka People #3 (QUD 621/2011) matter to show cause why the proceeding should not be dismissed on the grounds that:

1.    the applicant has no real prospect of successfully prosecuting the proceeding;

2.    the applicant has failed to comply with the Court’s order of 18 April 2013; and/or

3.    the proceeding is an abuse of the process of the Court.

2    The respondents have also sought an order that the applicant pay the respondents’ costs of this interlocutory application.

3    Before turning to consideration of the interlocutory application currently before the Court it is necessary to review the background to this application.

Background

4    The respondents are four members of the native title claim group in the Wulli Wulli #2 native title claim (QUD 311/2011). They are represented by Just Us Lawyers in respect of that claim.

5    The Wakka Wakka #3 applicant was represented by Queensland South Native Title Services (“QSNTS”), until on or around 27 August 2013 when QSNTS filed a notice of ceasing to act. The Wakka Wakka #3 applicant subsequently instructed another firm of solicitors and counsel, and were represented in this interlocutory show cause proceeding.

6    Key to understanding this dispute is the fact that there is complete overlap between the Wakka Wakka #3 claim and the Wulli Wulli #2 claim. In respect of registration the Wakka Wakka #3 and Wulli Wulli #2 claims are contemporaneous. Wulli Wulli #2 was filed on 23 September 2011 and registered on 16 December 2011, whereas Wakka Wakka #3 was filed on 12 December 2011 and registered on 19 January 2012. Both claims cover the same area of land and waters, and are bordered by other independent claims of the Wakka Wakka and Wulli Wulli people (that is, the native title claims in QUD 91/2012 Wakka Wakka People #4 and QUD 6006/2000 Wulli Wulli People). The Wakka Wakka #3 and Wulli Wulli #2 claims relate to an extensive area north-west of Brisbane bisected by the Boyne and Auburn Rivers. Generally speaking, the native title claim area in both cases is bordered on the east by the Boyne River, on the west by the Auburn Range, on the north by an area either side of the Eidsvold Theodore Road, and on the south by the Bunya Highway.

7    In light of the complete overlap between the Wakka Wakka #3 and Wulli Wulli #2 claims, the parties in both claims have on numerous occasions been referred to intensive case management, in order to attempt to resolve that overlap. In summary:

    A conference of experts was held on 29 and 30 January 2013, following which relevant experts were in agreement as to a group of apical ancestors for the overlap area.

    A further case management conference was held on 20 February 2013 to address the outcomes from the previous meeting, including in respect of apical ancestors not agreed between the experts.

    A third case management conference was held on 21 March 2013 at which agreement was reached over a list of apical ancestors for the overlap area. In his affidavit affirmed 28 August 2013 Mr Edward Besley of Just Us Lawyers, the solicitor for the Wulli Wulli #2 respondents, deposed that the effect of that agreement was as follows:

o    20 of the 23 apical ancestors in the Wulli Wulli #2 proceedings were agreed ancestors, and three were not;

o    four of the 14 apical ancestors in the Wakka Wakka #3 proceedings were agreed ancestors and 10 were not;

o    the south-eastern external boundary of the Wulli Wulli #2 proceedings would be amended so that the only areas claimed were west of the Boyne River; and

o    the Wulli Wulli people would consider whether to change the name of the Wulli Wulli #2 proceeding to a neutral name.

8    At a directions hearing on 18 April 2013 the applicants in Wulli Wulli #2 sought orders in that proceeding in terms of a further amended work plan filed on 8 April 2013. The terms of that plan were as follows:

1.    An authorisation meeting will be held in either late July or early August 2013 to which the descendants of the 19 apical ancestors agreed at the Case Management Conference of 21 March 2013 for the overlap area and the descendants of Romeo (King of Auburn), John/Jack Serico and Mary-Ann mother of Maggie McLean, will be invited. At this meeting the descendants of the 19 apical ancestors will be asked to decide whether the Wulli Wulli #2 claim is to be:

a.    Withdrawn and replaced by a new claim on behalf of the descendants of those 19 ancestors; or

b.    Amended, in accordance with the outcomes reached at the Case Management Conference of 21 March 2013.

(If the claim is to be withdrawn, or amended, the descendants of Romeo (King of the Auburn), John/Jack Serico and Mary-Ann mother of Maggie McLean will need to participate in that part of the decision, because they are currently part of the claim group description)

2.    The Wulli Wulli #2 claim is either withdrawn or amended by 30 August 2013.

3.    QSNTS take such steps in relation in the Wakka Wakka #3 claim as are necessary to give effect to the outcomes reached at the Case Management Conference of 21 March 2013.

9    At the directions hearing of 18 April 2013 the Wakka Wakka #3 applicant was not represented. In the circumstances, on the submission of the applicant in Wulli Wulli #2, I made the following orders in Wakka Wakka #3:

1.    The steps outlined in paragraphs 1 and 2 of the “further amended work plan” filed on 8 April 2013 in proceeding number QUD311/2011, be undertaken by the dates indicated in those paragraphs.

2.    The matter is otherwise adjourned for directions at 9.30am on 3 September 2013.

3.    There be liberty to apply.

10    On 27 July 2013 the Wakka Wakka #3 claim group held an authorisation meeting to consider whether leave should be sought by the Wakka Wakka #3 applicant to discontinue that claim. The claim group resolved not to discontinue that claim, and did not authorise any amendments to the claim in accordance with outcomes reached at the case management conference of 21 March 2013.

11    The Wulli Wulli #2 claim group held an authorisation meeting on 10 August 2013 and decided to continue with their own claim, retaining the same name, but authorising a number of amendments to the claim in light of the case management conference of 21 March 2013. In light of the decision of the Wakka Wakka #3 group not to discontinue their own claim, the Wulli Wulli #2 group members did not wish to proceed to discontinue their own native title application.

The case of the respondents

12    The basis of the complaints of the respondents in the interlocutory proceeding currently before me concerning the conduct of the applicant in this native title claim are set out in the affidavit of Mr Besley. Mr Besley deposes as to the events leading up to my orders of 18 April 2013 and states:

13.    The Applicant is concerned about the fact that the Applicant in the Wakka Wakka #3 proceeding has not taken the appropriate steps to give effect to the agreement reached in case management, namely, to discontinue the Wakka Wakka #3 proceeding. Because of this, the Applicant in the Wakka Wakka #3 proceeding has not complied with the orders of the Court made on 18 April 2013.

13    In particular, Mr Besley made reference to the agreement reached in case management in relation to the identity of the particular ancestors who have an association with the overlap area for the purposes of the native title sought to be recognised, and gave evidence that:

    All the ancestors who were agreed to have such an association on the basis of anthropological evidence and the agreed position of the members of the applicants in Wulli Wulli #2 and Wakka Wakka #3 were named as ancestors in the proposed amended Wulli Wulli #2 application; and

    None of the ancestors who are named on the Wakka Wakka #3 application (other than ancestors who are included in the Wulli Wulli #2 application) are persons recognised or agreed to have had an association with the overlap area.

14    Finally, Mr Besley deposed that the continuation of the Wakka Wakka #3 proceeding would prevent the orderly efficient progress of the Wulli Wulli #2 proceeding, either as a litigated claim or a negotiated claim.

15    Further, and in summary, the Wulli Wulli respondents submit as follows:

    Because the two claims completely overlap one another, the claims cannot proceed in terms of negotiations with the State government until the overlap is resolved.

    Following case management in early 2013 and the orders of 18 April 2013 it was proposed that the Wakka Wakka #3 claim be discontinued as well as the Wulli Wulli #2 claim.

    The Wulli Wulli people #2 have done what they agreed to do following the case management conference on 21 March 2013 and in accordance with the Court’s orders of 18 April 2013.

    The Wakka Wakka people #3 have reneged on the agreement reached with the Wulli Wulli people #2.

    The practical outcome is that after more than one year and significant costs, the parties are back where they began in July 2012 with two completely overlapping claims which cannot be progressed.

    The Wulli Wulli respondents have brought the interlocutory application in order to give effect to the agreement reached in case management and in that regard enforce the processes of the Court put in place to resolve the overlap between the claims.

    The purpose of the 21 March 2013 case management conference was to enable the claimants to discuss the apical ancestors the experts could not agree upon. Out of the 14 apical ancestors named on the Wakka Wakka #3 native title determination application, only five of them were identified as having a relevant traditional association with the overlap area. There are a further 11 people identified as apical ancestors on the Wulli Wulli #2 claim, each of whom the experts agreed had interests in the area.

    The Wakka Wakka #3 claim has no reasonable prospects of success because the overwhelming majority of the persons said to comprise those from whom native title holders may be descended are not, on the basis of the experts’ conference, persons having an interest in the area, and insofar as there remain five persons who do have such an interest they can only at best represent a sub-set of the overall native title holding group.

    It is apparent that not all the persons in the relevant “native title claim group” are included in the Wakka Wakka #3 claim. It is therefore a fundamentally flawed claim which has no reasonable prospects of succeeding.

    Further, to continue to prosecute the Wakka Wakka #3 proceeding in the face of the outcomes of the experts’ conference and the agreement reached between the parties in case management, is an abuse of process because to do so:

o    renders 15 months of effort and costs a waste of time;

o    results in two overlapping claims continuing to be actively prosecuted, one of which includes a number of persons as apical ancestors whom two anthropologists agree have no interests in the overlap area, with the only means of resolution being a full blown trial;

o    erodes confidence in the case management process if parties are not to be held to agreements they reach in the course of that process; and

o    is inconsistent with s 37M(1) and (2) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”).

The case of the native title applicant

16    The native title applicant opposes the show cause motion. It relies on the affidavit of Mr Robert West, filed 10 October 2013. Mr West is one of the persons authorised as the Wakka Wakka #3 applicant. In summary, Mr West deposes:

    In hindsight, the decision to divide Wakka Wakka land into separate parcels for the purposes of registration and determination was “not right”. There are not separate Wakka Wakka sub-groups.

    The apical ancestors of the Wakka Wakka people relate to the entire area covered by all of the current Wakka Wakka claims.

    Historically non-Wakka Wakka people lived on Wakka Wakka land, and were allowed by the Wakka Wakka people to engage in activities which appeared to be an exercise of native title rights (for example hunting or camping).

    He is related to some Wulli Wulli people, but such people are not and were never regarded nor accepted as Wakka Wakka people.

    Wulli Wulli only sought to claim native title over land east of the Auburn Range after Wakka Wakka #2 was discontinued. Wulli Wulli people have no claim to such land.

    No anthropological evidence has ever been obtained in respect of the Wakka Wakka #3 claim. The only anthropological evidence of which he was aware had been obtained in respect of the Wakka Wakka claims in their entirety.

    He is unaware how the situation developed that it would ever be appropriate that the Wakka Wakka people would discontinue their claim and the Wulli Wulli people continue their claim to the exclusion of the Wakka Wakka people.

    He denies that the Wakka Wakka people are “reneging” on a deal that was proposed and made in relation to having a joint claim over the area the subject of the Wakka Wakka #3 claim.

    When mediation took place at the Federal Court on 21 May 2013 he believes that the Wakka Wakka applicants did not understand what was happening.

    The native title applicant is committed to progressing the matter as fast as reasonably possible.

17    The Wakka Wakka #3 applicant submits (in summary) as follows:

    The status of any anthropological evidence at this time is obscure, and no admissible evidence has yet been put before the Court or tested.

    The applicant has not been put on notice as to the basis of the application for strikeout or summary dismissal. Further, the case the applicant is required to meet has not been squarely put to it. The result of this failure is that the applicant is required to attempt to anticipate all the possible reasons for criticism of both its conduct and the formulation of its claim.

    The applicant is not in default in respect of any rule of Court or direction of the Court. Rule 5.23 of the Federal Court Rules 2011 (Cth) is not enlivened. Paragraphs 1 and 2 of the orders of 18 April 2013 do not require the applicant to do anything at all.

    In any event, to the extent to which the work plan identified in the orders of 18 April 2013 was directed to the applicant, it was actually directed to the then solicitors for the applicant. While imprecise, the work plan required that a meeting of the claim group take place, to determine whether the claim would be amended in terms of what had been discussed at the meeting of anthropological experts. This was done.

    The work plan contemplated that both the Wulli Wulli #2 and the Wakka Wakka #3 claim would be discontinued and the new proceedings with a new name would be commenced after further research had been conducted in April 2014. The Wulli Wulli #2 claim has not however been discontinued. There has been no default on the part of the applicant in Wakka Wakka #3.

    The respondents have not sought summary judgment pursuant to r 26.01 of the Federal Court Rules, and would not be entitled to it in any event.

    There is no evidence to suggest that the applicant has no reasonable prospect of success. If the material filed in support of the application is accepted by the Court the applicant’s claim will succeed.

Consideration

18    The Court is empowered in a number of respects to summarily dismiss applications. Rule 26.01(1) of the Federal Court Rules confers on the Court the power to summarily dismiss a proceeding where:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)    the proceeding is an abuse of the process of the Court; or

(e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

19    Second, the Court is empowered by r 5.23 of the Federal Court Rules to give summary judgment where a party is in default of Court orders.

20    Third, s 84C of the Native Title Act 1993 (Cth) (“Native Title Act”) provides:

If an application (the main application) does not comply with section 61 (which deals with the basic requirements for applications), 61A (which provides that certain applications must not be made) or 62 (which requires applications to be accompanied by affidavits and to contain certain details), a party to the proceedings may at any time apply to the Federal Court to strike out the application.

21    Considering summary dismissal of a native title application the Full Court recently in Budby on behalf of the Barada Barna People v State of Queensland [2013] FCAFC 149 observed:

[10] … the discretion to summarily dismiss a proceeding on the basis that it lacks reasonable prospects of success requires not only caution (because a party is thereby deprived of its opportunity for a hearing on the merits) but also an assessment of the substance of the native title claim having regard to the material both available and likely to be adduced. If it appears from that material that there is a real basis for the claim then the mere fact that the claim is in dispute, or that contrary material is available, or that the existing material is preliminary or incomplete is not a proper basis for the exercise of the power of summary dismissal on the ground of lack of reasonable prospects of success.

22    Applying these principles to the case before me it is clear that the respondents’ submission that the Wakka Wakka #3 native title application has no prospects of success cannot be sustained. I am also satisfied that the application is not an abuse of the Court’s process to warrant summary dismissal, and further that the Wakka Wakka #3 applicant is not in default of Court orders.

23    First, as Counsel for the native title applicant submitted, anthropological evidence in this case is by no means conclusive. It is true that the overlap between the two native title claims has been the subject of intensive, Court-ordered case management. As appears from the Further Amended Work Plan filed on 8 April 2013, several conferences of experts have been held, as well as case management conferences involving the lawyers and the applicants in each native title claim in respect of outcomes of earlier conferences and identification of relevant apical ancestors. As of the date the Further Amended Work Plan was filed, it appears that 19 apical ancestors had been identified whom the applicants for each matter agreed were persons from whom the native title holders in the overlap area may be descended. However to the limited extent that there is evidence before the Court, there is conflict in that evidence – I note in particular the evidence of Mr Robert West of the native title applicant.

24    The evidence in this case – expert or otherwise – in respect of clearly identified and conclusive apical ancestry or otherwise has not been tested or even finalised. It would be imprudent and indeed dangerous for the Court to draw any final conclusions on the material likely to be adduced should the matter proceed to trial, much less summarily dismiss the Wakka Wakka #3 claim in such circumstances.

25    Second, the primary grievance of the Wulli Wulli respondents (being the applicants to the motion currently before the Court) is the failure of the Wakka Wakka #3 native title claim group to resolve to discontinue their claim in light of issues agreed at the case management conference of 21 March 2013. Clearly, the Wulli Wulli #2 applicant anticipated – perhaps with some justification in the circumstances – that the meetings would be a significant step towards resolving that overlap and areas of disagreement. However simply because the Wakka Wakka people did not, in the context of a subsequent claim group meeting, decide to vote in such a way as to give effect to matters agreed by their representatives does not mean that the Wakka Wakka #3 claim in its current form has no prospects of success or is an abuse of process.

26    It is not clear why the Wakka Wakka #3 claim group adopted the approach they took at the authorisation meeting of 27 July 2013, however the decisions of the claim group at that authorisation meeting does not, in my view, mean that their claim lacks fundamental merit such that it ought be summarily dismissed.

27    Third, I note that Queensland South Native Title Services ceased to act for the applicant on or about 27 August 2013. However the Wakka Wakka #3 applicant had clearly briefed new solicitors and counsel by the time of the hearing of the interlocutory show cause application. While the development concerning Queensland South Native Title Services is suggestive of discord between the native title group and the relevant representative body, it does not, of itself, support an inference of absence of merit in the native title claim itself or bad faith in the native title claim group.

28    Fourth, I am not satisfied that the Wakka Wakka #3 applicant is in default of any orders of this Court so as to warrant an order for summary dismissal. I have formed this conclusion in circumstances where:

    the Court’s orders of 18 April 2013 – proposed by the Wulli Wulli #2 applicant – did not require the Wakka Wakka #3 native title applicant to perform any act which they have failed to perform; and

    to the extent that the native title applicant undertook following the relevant case management conferences, to put to the Wakka Wakka #3 claim group the issue of discontinuance of the Wakka Wakka #3 native title claim, it does not appear to be in dispute that the applicant in fact did so. It merely appears that the claim group decided not to discontinue the claim.

29    It follows that the appropriate order is to dismiss the interlocutory application filed by the Wulli Wulli #2 respondents to this proceeding.

Costs

30    The Wulli Wulli #2 respondents have contended that, should they be unsuccessful in respect of their show cause interlocutory application, the Court should order, pursuant to s 85A(2) of the Native Title Act, that the Wakka Wakka #3 applicant pay the costs of the Wulli Wulli #2 applicant thrown away as a result of their participation in the case management process.

31    Section 85A(1) of the Native Title Act sets out the general rule in native title proceedings, namely that each party bears its own costs. Section 85A(2) provides an exception to that general rule, and confers a discretion on the Court to tailor an order for costs to circumstances where the conduct of a party has been unreasonable.

32    In this case the Wulli Wulli #2 respondents submit that the conduct of the Wakka Wakka applicant has been wholly unreasonable.

33    Relevantly, as the Full Court explained in De Rose v South Australia (No 2) [2005] FCAFC 137 at [8]:

    Section 85A(2) puts beyond doubt the extent of the Court’s discretion in cases where a party acts unreasonably, but s 85A(2) does not control or limit the discretion available to the Court under s 85A(1); and

    The matters to be taken into account in making a costs order are left to the Court’s discretion, which must be exercised judicially.

34    In this case a great deal of work and effort has clearly been expended by members of each claim group, experts, legal representatives, and case management facilitators, to apparently little avail. Submissions of the Wulli Wulli #2 respondents and evidence of witnesses including Mr Besley for the Wulli Wulli #2 respondents reveal a high level of frustration and disappointment in the respondents concerning the views adopted by the Wakka Wakka #3 claim group. However in my view the fact that initially-promising negotiations between the two groups have apparently been unsuccessful does not mean that either party is at fault, or has acted unreasonably. The outcome of the case management process, while in this case unfortunate, certainly does not warrant an order for costs by a disaffected party to the negotiations. Such a submission is, in itself, unreasonable. The circumstances of this case warrant no order as to costs, being the usual approach in proceedings under the Native Title Act.

Conclusion

35    As Dowsett J observed in Barada Barna at [57] the Court cannot allow the parties to investigate and/or negotiate indefinitely, and without any progress towards trial. Section 37M of the Federal Court Act encourages the just resolution of disputes as quickly, inexpensively and efficiently as possible. In circumstances where, notwithstanding extensive case management, the parties are at an impasse in respect of their respective claims, the appropriate course is to make programming orders to take the dispute to trial. I will now direct the parties to endeavour to agree to programming orders for the Court’s consideration.

Associate:

Dated:    5 March 2014