FEDERAL COURT OF AUSTRALIA

Ward v State of Western Australia (No 2) [2014] FCA 825

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application dated 4 August 2014 be dismissed.

2.    The respondent have leave to file its proposed third further amended defence.

3.    The matter be listed for directions at 9am on Friday 8 August 2014.

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

REASONS FOR JUDGMENT

1    The applicant on behalf of the compensation claim group has applied for a determination of compensation by application made under the Native Title Act 1993 (Cth) (NTA) filed 29 March 2012.

2    The compensation application relates to the extinguishment of native title over what is now known as the Gibson Desert Nature Reserve by the creation of the Reserve in 1977.

3    The filing of the compensation application followed the Ngaanyatjarra Lands determination.

4    The Reserve falls within the external boundaries of the application for a determination of native title which was the subject of the Ngaanyatjarra Lands proceeding which was settled by agreement between the parties, including the State and the Commonwealth and resulted in a consent determination of native title in 2005.

5    Recital G of the Ngaanyatjarra Lands determination stated:

The State has agreed with respect to the areas set out in Schedule 2 of the Minute of Consent Determination of Native Title that, but for the complete extinguishment of native title effected over those areas, the Applicants in WAD 6004 of 2004 would have held native title rights and interests conferring the right to possession, occupation, use and enjoyment of the land and waters to the exclusion of all others, save in respect of flowing and subterranean water.

6    Schedule 2 described the areas excluded from the determination of native title as including:

Reserve 34606 (Gibson Desert Nature Reserve) for the purpose of ‘Conservation of Flora and Fauna’ vested in and held in trust by the Western Australian Wildlife Authority pursuant to s 33 of the Land Act 1933 (WA) on 22 April 1977…

7    The parties to the Ngaanyatjarra Lands determination, including the State and the Commonwealth, agreed that native title within the Reserve had been extinguished by the vesting of the Reserve in the Western Australian Wildlife Authority.

8    A Memorandum of Understanding (MOU) was entered into between “Fred Ward on behalf of the Gibson Desert People native title claim group” and the Executive Director of the Department of Conservation and Land Management (CALM) for the establishment of joint management of Reserve 34606. The MOU provided for the development of a working together project between the traditional owners of Reserve 34606 and CALM (now known as the Department of Parks and Wildlife and the Department of Environment Regulation). A grant agreement dated November 2005 was signed between the traditional owners of the Reserve and the State.

9    Clause 3.8 of the grant agreement recognised that a compensation liability existed on the part of the State for the extinguishment of native title rights and interests brought about by the creation and vesting of Reserve 34606. Clause 3.8 provided:

3.8     Compensation under Native Title Act 1993 (Cth)

    The parties recognise that a compensation liability exists on the part of the State of Western Australia for the extinguishment of native title rights and interests in the Gibson Desert Nature Reserve. The Grantor is committed to negotiating a compensation package which will fully compensate those people who, but for the extinguishment of native title rights and interests, would have held those native title rights and interests in the Gibson Desert Nature Reserve. The parties acknowledge that the contribution of funds made under this Agreement may be added, and a form of land tenure over the Gibson Desert Nature Reserve transferred to the PGDNR (People of the Gibson Desert Nature Reserve) will be added, to the ‘mix’ of compensation options to be negotiated as part of any such ‘compensation package’.

10    The compensation package was never finalised and ultimately, with a change of Government, the State withdrew from the negotiations.

11    It appears the Central Desert Native Title Services Limited, which acts for the applicant, considered exclusive possession would not be in issue if an application for compensation for extinguishment of native title was then brought on behalf of the traditional owners of the Reserve.

12    The hearing of the compensation application is currently due to commence on country in the vicinity of the land the subject of the application – the Gibson Desert Nature Reserve – between 19 and 29 August 2014, when the first tranche of evidence will be taken from members of the compensation claim group. Further evidence is expected to be taken later in Perth.

13    For the purposes of the imminent hearing on country, counsel and solicitors for the applicant have been in the process of proofing and preparing a number of witnesses.

14    Senior counsel for the applicant has explained that the witnesses are being proofed on the basis that the compensation they claim should reflect the fact that the holders of the relevant native title would have held exclusive possession rights to the land in question, including the right to control the access of all other persons to that land, but for the extinguishment of native title by the creation of the Reserve in 1977.

15    There is no dispute that, until recently, the State of Western Australia, as the respondent, and the Attorney-General of the Commonwealth of Australia, as intervener in the proceeding, have proceeded on the basis that, but for the extinguishment of native title by the creation of the Reserve, the native title over the area at relevant times was exclusive in nature and would have included the right to exclude other persons from the land.

16    This position was reflected in the State’s initial defence dated 26 October 2012 which was filed in answer to the amended statement of facts, issues and contentions (amended SFIC). By [11], the initial defence stated:

Prior to the creation of the Reserve, the land the subject of the compensation application was unallocated Crown land. It had not been the subject of any prior extinguishing tenure. It is possible that, prior to the creation of the Reserve, public works had been constructed or established on the land. Particulars of any such public works will be provided prior to trial.

17    Then, in a section of the initial defence headed “The extinguishment of native title rights and interests”, [15.1] stated:

Accordingly, in relation to paragraph 5 of the amended SFIC, the respondent admits that, if native title existed at the time, the extinguishing act extinguished:

15.1    A right to control the use of or access to the land which, by application of the non-extinguishment principle, was of no effect at the time the extinguishing act was done.

18    Subsequently by an amended defence filed pursuant to orders made 24 April 2013 the position of the State stated in [11] and [15.1] of the initial defence was maintained.

19    The Attorney, as intervener, at that point adopted the State’s position in this regard.

20    On 9 April 2014, the Court granted leave to the State to further amend its defence. The State then filed its second further amended defence dated 21 May 2014, that is to say some 12 months after the amended defence and less than three months before the commencement of the hearing.

21    By the second further amended defence the old [11] was effectively replaced by a new [10] and [11] which state:

10.    Prior to the creation of the Reserve, the land the subject of the Reserve was unallocated Crown land. It had not been the subject of the grant of any prior land tenure which had the effect of extinguishing native title. The north-western portion of the Reserve was previously the subject of the grant of a right of occupancy of a temporary reserve under the Mining Act 1904 (WA) (repealed) approved on 9 June 1965 for a term of 12 months from 15 March 1965 (and cancelled on 14 December 1965) (right of occupancy).

11.    It is possible that, prior to the creation of the Reserve, public works had been constructed or established on the land. Particulars of any such public works will be provided prior to trial.

22    There were other related amendments arising from the stated grant of a right of occupancy.

23    The effect of [10] of this second further amended defence therefore had the effect of denying that at material times there was exclusive possession in that area of land the subject of the right of occupancy. The question of a right of exclusive possession in relation to the balance of the land was not, however, put in issue.

24    At that point the Attorney, as intervener, filed a further amended defence dated 23 May 2014. By [7] it is stated:

The Commonwealth’s response to paragraph 9 of the second further amended SFIC is premised on the basis that, prior to the creation of the Reserve, there were no historic acts that affected native title. For that purpose, the Commonwealth relied upon the facts pleaded by the Respondent at paragraph 11 of the Respondent’s amended defence filed 31 May 2013. The Commonwealth reserves its position in relation to the effect, if any, of the grant of a right of occupancy over part of the area covered by the Reserve, as particularised in paragraph 10 of the Respondent’s second further amended defence: see paragraph 14.1 below.

25    Then, at a case management conference before me on Monday 21 July 2014, the State foreshadowed further amendments to its second further amended defence, which were communicated under cover of a letter dated 25 July 2014 to the solicitors for the applicant and the Attorney, with a copy to the Court, in the form of a proposed third further amended defence. The letter indicated the State would seek leave to file this document.

26    Significantly, [5(a)] of the proposed third further amended defence is in the following terms:

5(a)    In respect of paragraph 5.1, (the State) denies that as at 22 April 1977 the native title rights held by the native title holders included:

(i)    possession, occupation, use and enjoyment of the area [of] the native title holders to the exclusion of all others; or

(ii)    a right to control access to, or use of, the area.

Particulars

Prior to the creation of the Reserve, the whole of the Application Area was the subject of License to Prospect Crown Lands for Mineral Oil No 21 (granted in respect of Oil Prospecting Area 26H) under s 6 of the Mining Amendment Act 1920 and registered on 13 September 1921. The grant of that licence was effective to extinguish native title rights and interests of an exclusive nature. If, which is denied, that grant was not effective to extinguish native title rights and interests of an exclusive nature, later grants of historical petroleum tenure had that effect. It follows that, as at 22 April 1977, native title in relation to the Reserve comprised non-exclusive rights and interests only (and particularly, those referred to in paragraph 5(b) below).

27    If proposed [5(a)] is able to be advanced, the effect would be that the State would no longer accept at the hearing that any of the land was the subject of exclusive possession native title at material times.

28    By interlocutory application filed by the applicant on 4 August 2014 and heard on 5 August 2014, the applicant seeks to strike out those parts of the State’s second further amended defence filed 21 May 2014 that would permit it to argue that the relevant native title at material times in the area the subject of the compensation application was anything but exclusive native title, and that leave be refused to the State to file its proposed third further amended defence.

29    The applicant also seeks an order that the further amended defence filed 23 May 2014 by the Attorney be the subject of similar strike out orders.

30    There is therefore one issue of substance raised by the matters before me: whether the State and the Attorney should be entitled to alter their positions by withdrawing the admission that, if native title existed at the relevant time, the extinguishing act extinguished a right to control the use of or access to the land which, by the application of the non-extinguishment principle, was of no effect at the time the extinguishing act was done.

Should the State and the Attorney be permitted to change their positions and withdraw their admissions?

31    Rule 16.53 of the Federal Court Rules 2011 (Cth) states that unless R 16.51 applies (which in this case it does not), a party must apply for the leave of the Court to amend a pleading. Rule 26.11(2) states that a party must not withdraw an admission or any other plea that benefits another party in a defence or subsequent pleading unless the other party consents or the Court gives leave.

32    The applicant contends that these Rules apply to the defences filed or proposed to be filed by the State and the Attorney, notwithstanding that they are filed in response to a statement of facts, issues and contentions filed in the proceeding by the applicant.

33    The State submits that notwithstanding the description of the responses it has filed as “defences” they are not formally “pleadings” for the purposes of the Rules.

34    In that regard, it may be noted that by the dictionary to the Rules in Sch 1, the term “pleading” means a statement of claim; or a statement of cross-claim; or a defence; or a reply; or any pleading after a reply; but does not include an originating application, an interlocutory application, a notice of any kind or an affidavit.

35    In my view, notwithstanding the description of the amended SFIC as a statement of facts, issues and contentions, it was intended at all material times that it should provide a statement of the claim made by the applicant and in that regard should contain the material facts upon which the applicant relies in making its claim and the issues of fact and law said to arise on the application.

36    That view is consistent with what is set out in Pt 16 of the Rules concerning pleadings. Rule 16.02 deals with the content of pleadings generally and, amongst other things, requires a pleading to identify the issues that the party wants the Court to resolve and to state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved. The amended SFIC does precisely that.

37    In any event, in circumstances where the Court and the parties have proceeded on the understanding that the amended SFIC and the defences filed subsequent to it were always intended to state the material facts and to identify the issues to be resolved at the hearing of the application, the principles governing any alteration of position by a party subsequent to the filing of their statements should be considered applicable in the present circumstances. As a general principle of fairness, an admission made in the statements currently before the Court should not be withdrawn without leave of the Court.

38    To put the point another way, there was no understanding and could not have been any understanding on behalf of the State (or the Attorney) that the defences filed in response to the amended SFIC were provisional statements of position amenable to change without notice and leave prior to the hearing of the application.

39    So far as the withdrawal of an admission in a defence is concerned, the principles are not in dispute between the parties and the intervener and are well established. They are referred to in particular in the written submissions of the applicant and the Attorney. In Centrestate Exports Pty Ltd v Amarantos Shipping Co Ltd [2005] SASC 158 at [32], Debelle J said:

The overriding consideration is the interests of justice. The Court will not lightly permit a party to withdraw an admission where the other party has acted to its detriment on the admission or is otherwise prejudiced by the withdrawal. It is plainly necessary to have regard to all relevant factors including the nature and importance of the admission, the circumstances in which the admission was made, whether the admission was made deliberately or inadvertently, the reason given for the application to withdraw, the detriment or prejudice which might be caused to the other party and the stage which the proceedings have reached, and whether the admission is contrary to the facts. The list of relevant factors affecting the Court’s decision will plainly vary from case to case.

40    That statement has been adopted or endorsed in a number of settings. See Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2007] FCA 1390 at [4] (Finn J); Optical 88 Limited v Optical 88 Pty Ltd [2010] FCA 310 at [24]-[31] (Yates J) – albeit it in respect of the former Order 22 Rule 4; Novartis Pharmaceuticals Australia Pty Ltd v Bayer Australia Limited (No 3) [2013] FCA 1323 at [12] (Robertson J).

41    It is recognised that this statement of principle must be viewed in light of s 37M of the Federal Court of Australia Act 1976 (Cth) in relation to the overarching purpose of civil practice and procedure provisions, namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

42    The timing and apparent significance of the withdrawal of the State’s admission, and the Attorney’s changed position, in the light of fresh tenure documentation, has been noted above.

43    As to the explanation for the State’s application for leave to amend its defence again, the State read two affidavits. First, it read the affidavit of Jeffrey William O’Halloran, senior advisor within the State Solicitor’s Office (SSO) who leads the native title and state lands practice group within that office and has done so since 1996.

44    Mr O’Halloran stated that he had primary carriage of the Ngaanyatjarra Lands determination on behalf of the State.

45    He said that in the conduct of native title proceedings the State routinely undertakes searches of land, mining and petroleum registers to identify the extent of current and historical grants of interests which may have extinguished or otherwise affected native title. Those searches are instituted by the SSO issuing a combined request to Landgate and the Department of Mines and Petroleum (DMP) to provide the information. Landgate delivers information on behalf of both agencies in the form of a DVD which contains a Geographical Information System application known as Mapinfo.

46    He said that in 2004 when the searches were conducted for the purposes of the Ngaanyatjarra Lands negotiation, early historical petroleum titles had not been captured in digital form and therefore were not searched as a matter of routine. The tenure information provided for the purposes of that determination contained historical land and mining tenure, but not historical petroleum tenure.

47    He said the need to capture historical petroleum tenure for the purposes of native title proceedings prompted DMP to undertake a process of digitising information it held in relation to the early historical petroleum titles to enable that information to be searched. He said he understands from speaking to lawyers within the native title and state lands practice group that DMP commenced that digitisation process in late 2010 or early 2011 and completed it in about December 2012, although some other titles were added in 2013. He further understood that digital information is being added to from time to time as new titles are granted or, occasionally, when records of old titles are found.

48    Mr O’Halloran stated that he is aware that, prior to digitisation, DMP held paper and microfiche records only and that the area of early historical petroleum titles was often described by co-ordinates only without reference to a map.

49    He added that currently a standard request for historical tenure information will return historical petroleum titles granted under the Mining Act 1904 (WA) and the Petroleum Act 1936 (WA), as in the current proceeding.

50    Secondly, the State read the affidavit of Sarah Lealiifano, law clerk employed by the SSO. Ms Lealiifano works in the native title and state lands group within the SSO and her duties include liaising with Landgate and the DMP in relation to land and mining tenure searches requested by the SSO.

51    She stated that by email dated 19 March 2014 she requested Landgate to undertake a current and historical land, mining and petroleum tenure search in relation to the area the subject of the proceeding as a result of instructions she received from Mr Alex Rorrison, Senior Assistant State Solicitor, who has the conduct of the proceeding within the SSO.

52    On 14 May 2014, she received what she describes as early notice from Title Spatial Services, Mineral Titles that the historical mining tenure search had revealed the existence of a right of occupancy of a temporary reserve granted in 1965 within the claim area. She forwarded that email to Mr Rorrison.

53    She said the SSO then received the complete tenure information on or about 29 May 2014 in the form of a DVD.

54    She added that from speaking to Mr Rorrison, in the meantime, he also requested additional information from DMP in relation to the historical petroleum titles and provided those details to the solicitors for the applicant by letter dated 26 June 2014, together with some of the source tenure documents from the DVD.

55    The Solicitor General on behalf of the State at the commencement of his submissions on the hearing of the interlocutory application informed the Court, something not in dispute, that at a case management conference before Registrars of the Court on 26 May 2014 the parties including the applicant’s representatives were advised that there were ongoing tenure investigations being carried out by the State that were expected to be completed by the end of June 2014.

56    What is apparent, but not express in these explanations is that despite the formal position maintained about the exclusive possession native title, the State in March 2014 decided to request further historical tenure searches in relation to the proceeding. Having regard to the evidence of Mr O’Halloran, the digitisation process undertaken by DMP commenced in late 2010 or early 2011 and was completed in about December 2012 (although some other titles were added in 2013) and that digital information is being added to from time to time as new titles are granted or, occasionally, when records of old titles are found. There is nothing to explain why the State decided in March 2014 to request further tenure searches and why it did not make the additional historical tenure search inquiry at some point much earlier, in 2013 when apparently it was open to it to do so.

57    The strong impression left is that late in the piece the State, through the SSO, determined to ascertain whether there was indeed some historical tenure capable of contradicting the admission that it had previously, and on the face of it deliberately, made in the proceeding.

58    The Commonwealth read the affidavit of Gordon Joseph Kennedy. Mr Kennedy is a lawyer employed by Australian Government Solicitor (AGS) which acts for the Attorney.

59    Mr Kennedy stated that on 12 July 2012 when the Attorney instructed AGS to intervene in the proceeding, the Attorney’s purpose was to make submissions to the Court about the interpretation and operation of the compensation provisions of the NTA.

60    He said that when it filed its initial defence on 9 November 2012 and the amended defence on 7 June 2013, the Attorney was not in possession of any tenure material from the State and was reliant upon the State’s representations regarding the outcome of its tenure investigations.

61    He said that the first occasion upon which the Attorney received notice that the State had discovered an earlier tenure that affected native title was when the State filed and served its second further amended defence on 21 May 2014, concerning the right to occupy.

62    Mr Kennedy further noted that on 12 June 2013, being a date after the filing of the Attorney’s amended defence, the solicitors for the applicant wrote to AGS and advised that following its consideration of matters raised by the State, it was considering seeking to apply to have the Commonwealth of Australia joined as a party to the compensation application. He produces that letter as attachment GJK-1 to his affidavit.

63    In that letter the applicant’s solicitor elaborated on the reason why the Commonwealth should be joined as a party to the proceedings as opposed simply to being involved as an intervener, on the basis that the Commonwealth, depending on the determination by the Court in relation to the application against the State, may be liable for “just terms” compensation under the NTA.

64    He further pointed out that in advance of a directions hearing listed before me on 14 June 2013, but subsequently vacated by consent, the solicitors for the applicant wrote to AGS and the State enclosing a draft minute of order that included a proposed order seeking to have the Commonwealth joined as a party to this proceeding. That matter, however, has not been progressed at this point.

65    However, Mr Kennedy said that during a case management conference on 26 May 2014 with Registrars of the Court, senior counsel for the applicant stated that in light of some of the positions taken by the State, the applicant intended to pursue a claim for compensation against the Commonwealth pursuant to s 53 of the NTA.

66    In the light of that advice, he said counsel for the Attorney advised that the Attorney’s position was that the applicant would need to amend its originating application to institute a claim for relief against the Commonwealth and consent orders could likely be negotiated and that if the Commonwealth was joined the Attorney would likely withdraw as an intervener.

67    Finally, Mr Kennedy said that it was on 26 June 2014, that the Attorney, through AGS, first became aware of the petroleum licences and permits the subject of the proposed third further amended defence of the State.

68    The applicant read the affidavit of Malcolm O’Dell, save for the last sentence of [19]. The Court also did not allow to be read annexure MO-3, referring to a second reading speech on the Indigenous Conservation Title Bill 2007 in the Western Australian Parliament, on the ground that it would appear to abrogate Parliamentary privilege. The Court declined to prevent the reading of some other passages objected to by the State and the Attorney.

69    Mr O’Dell provided background to the making of the application presently before the Court setting out the details of the Ngaanyatjarra Lands determination described above.

70    He added that in 2010, he assessed a number of successful consent determinations within the Central Desert region with a view to applying to the Department of Family, Housing, Community Services and Indigenous Affairs (the then funding body which has since been replaced by the Department of the Prime Minister and Cabinet) to fund a compensation claim. He said that it became clear to him, after discussions with other principal legal officers, chief executive officers of representative bodies under the NTA and other lawyers, that any compensation claim to be lodged in Western Australia would likely become a test case for the State and, to some extent, the whole of Australia. He was aware the only contested compensation claim in Australia had been unsuccessful. See Jango v Northern Territory [2006] FCA 318; (2006) 152 FCR 150. He considered all the successful consent determinations to come up with a potential compensation claim and finally concluded that the vesting of the Reserve would provide the most appropriate case because first, the area was entirely surrounded by land the subject of a determination of exclusive native title and, secondly, the State and the Commonwealth were parties to the Ngaanyatjarra Lands determination and had agreed that the vesting of the Reserve had extinguished a native title right of exclusive possession.

71    Accordingly, he said, this proceeding was commenced on 29 March 2012, claiming exclusive possession rights had been extinguished by the Reserve. He added:

I would not have advised my clients to commence this proceeding were it not for my belief engendered by the State’s and the Commonwealth’s representations or assurances, that prior to the vesting of the [Reserve], there had been no prior historical grants of tenure which would have extinguished the native title right of exclusive possession.

72    Mr O’Dell then refers to the pleading history concerning the State’s and the Attorney’s position on the exclusive possession issue, as set out above.

73    He also referred to the written agreement of the terms reached between the parties signed by the State’s and the Commonwealth’s legal representatives on 21 June 2005. That agreement was annexed as MO-1 to his affidavit.

74    He then noted that on 26 June 2014, the SSO sent a covering letter and a bundle of historical tenure documents that included applications for licences to prospect and permits to explore, which included an expression of the State’s view of the law in relation to extinguishment by such licenses and which added that the State anticipated that it “will be pleading in relation to these matters” but would await receipt of more tenure documentation.

75    At the date of that letter Mr O’Dell indicated that all staff working on the compensation proceedings and senior and junior counsel were proofing witnesses in the Reserve. He says they were not alerted to the ramifications of the documents received until they received the proposed third further amended defence.

76    Mr O’Dell said the applicant has received no explanation from the State for the searching and compiling of current and historical land, mining and petroleum tenure at this late stage of the proceeding. He said that no petroleum tenements were provided to the applicant in the course of the process leading up to the Ngaanyatjarra Lands determination. He said that he is aware that there are other consent determinations of native title that recognised a native title right of exclusive possession that are also overlapped by the same petroleum tenements now relied upon by the State in the proposed third further amended defence (and referred to in the letter of 26 June 2014).

77    Mr O’Dell said the applicant has prepared its case including, in particular, the statements and substances of evidence of the Aboriginal witnesses, on the understanding that the State and Commonwealth admitted that, but for the reservation and vesting of the Reserve, the native title holders would have held native title rights and interests conferring the right to exclusive possession.

78    He said the applicant’s case has been filed, prosecuted and prepared on the basis of those admissions and if the admissions are withdrawn, this will severely prejudice the applicant and if the submissions made by the State in a prÉcis prepared for a judicial case management conference on 31 July 2014 and circulated amongst the parties are correct, then the applicant’s case for compensation will be significantly weakened.

79    Mr O’Dell said that in those circumstances, the likelihood is that he will have to seek instructions at a claim group meeting as to whether the claim group intends to continue with its compensation claim and he will not have time to seek these instructions before the hearing is due to commence on 19 August 2014.

80    He further said that he understands that the funding for this proceeding was provided by the funding body on the basis that this was a suitable test case for determining the quantum of compensation for the extinguishment of native title rights and interests. He said that he would be obliged to inform the funding body of the change in the nature of the case, if the change in position of the State and the Attorney is allowed, and he cannot be sure of continued funding.

81    The applicant argues that, while the State filed its second further amended defence on 21 May 2014 pursuant to a general leave earlier granted by the Court, at no time was the withdrawal of the admission previously pleaded concerning exclusive possession drawn to its attention. In those circumstances, it submits that the last sentence of [10], [13], [14], [17] and [18] should be struck out, as should [7], [14] and [14.1] of the Attorney’s further amended defence filed 23 May 2014.

82    It also opposes the filing of the proposed third further amended defence.

83    The applicant relies on the general principles governing the exercise of judicial discretion to grant leave to withdraw an admission in a defence, and submits that case management principles, including the avoidance of wasted costs and delay, may be taken into account on an application for leave to amend. In this regard it refers to what was said in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon Risk) at [70], [95] and [97].

84    The applicant says relevant matters also include the importance of the amendment to the party applying for it, the stage of the litigation at which leave is sought, the explanation, if any, for any delay in applying for leave and the potential for the loss of public confidence in the legal system which can arise where a Court is seen to accede to applications made without adequate explanation or justification.

85    The applicant submits that where, as here, the effect of an amendment would be to withdraw an admission in a defence, then good cause must be shown and even if good cause is shown, the prejudice to the other party must be taken into account.

86    The applicant emphasises that the overriding consideration is the interests of justice.

87    The applicant also notes that the withdrawal of an admission will be less readily allowed if it has stood for a long time. Admissions made with deliberateness and formality are not ordinarily permitted to be withdrawn.

88    In this case, the applicant contends, it is highly relevant that the admissions contained in the defences filed in 2012 were made deliberately and presumably on advice, were repeated in the amended defences filed in 2013 and were the same as or consistent with the admissions made by the State and the Commonwealth in the Ngaanyatjarra Lands determination.

89    The applicant submits that it and the compensation claim group will be prejudiced if the State and the Commonwealth are permitted to raise fresh issues and withdraw long-standing admissions at this late stage in the proceeding. First, it contends, that this proceeding would not have been commenced at all were it not for the belief engendered by the State’s and the Commonwealth’s admissions and representation that, prior to the vesting of the Reserve, there had been no prior historical grants of tenure which would have extinguished the native title right of exclusive possession. It relies on Mr O’Dell’s evidence in this regard.

90    Secondly, the applicant says its case has been prosecuted and prepared for more than two years now on the basis of the admissions made in the Ngaanyatjarra Lands determination, that includes the preparation of the detailed witness statements and substances of evidence that have been recently filed for the imminent hearing. It submits it is clear that considerable time, effort and money has been expended in preparing a case which is predicated on the assumption that immediately prior to the vesting of the Reserve, the native title rights and interests which existed involved exclusive possession. It submits the significant amendments and the consequential withdrawal of admissions of the kind proposed will require the solicitor for the applicant to advise his clients and obtain fresh instructions as to whether the claim group will continue with the claim. In that regard, there will not be time to convene a claim group meeting before the trial commences on 19 August 2014. Additionally, he will also need to inform the Commonwealth funding body of the change in the case.

91    Thirdly, the applicant submits, it should be clear that the admissions which were formally and solemnly made in the Ngaanyatjarra Lands determination and repeated in this proceeding, would have raised the hopes and expectations of the members of the compensation claim group. It submits that modern litigation is productive of “non-compensable inconvenience and stress on individuals”, as recognised in Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 392 and referred to with approval in Aon Risk at [100]-[101]. In particular, it says, the strain on litigants so recognised and anxieties occasioned by facing new issues and the raising of false hopes and the legitimate expectation that a trial would determine an issue one way or another, are all relevant matters to be taken into account by the Court in exercising its discretion.

92    Senior counsel for the applicant also emphasised in oral submissions that in the proceeding of the present nature, the proceeding is adversarial, not inquisitorial and the State and the Attorney should not be permitted, at this late stage of the proceeding, having chosen to advance the issues they wished to litigate upon, to change them at this late stage.

93    The State does not accept that the statement of its position in the defences filed in 2012 or the amended documents since constitute “pleadings” in any formal way, such that the Rules concerning the withdrawal of admissions apply to them. The State submits that the documents styled “defences” are responses to the statement of facts, issues and contentions.

94    I have dealt with and rejected this submission above.

95    The State further contends that neither recital G of the Ngaanyatjarra Lands determination nor cl 3.8 of the grant agreement can be admissions of anything for the purposes of this proceeding. The State observes that if the applicant contends that the State is estopped from now contending the existence and significance of the petroleum licence, then this defence will involve a trial and there will be many witnesses required, including, no doubt, all counsel who have appeared in this matter.

96    Further, it submits that the Ngaanyatjarra Lands determination, the area of which surrounds the current application area, was either unallocated Crown land attracting s 47B of the NTA, or subject to a “use and benefit” Reserve attracting s 47A of the NTA. As such in the Ngaanyatjarra Lands determination it was unnecessary for the State to have conducted historical land tenure searches over the Reserve area prior to the consent determination. It says this is not, and never was the case with the area of this compensation claim, as s 47A never applied to it.

97    The State further says that in respect of the area of unallocated Crown land in the Ngaanyatjarra Lands determination, as at the date of that determination, the practice of the State was to only undertake historical tenure searches in respect of titles issued pursuant to “land” and “mining” legislation and not “petroleum” legislation. It says if there are noncurrent petroleum titles over what was unallocated Crown land in (what is now) the Ngaanyatjarra Lands determination area, it would not have been found as a result of searches conducted at that time.

98    The State finally contends that to the extent the responses are pleadings and the Rules apply (as I have found they do), leave should be granted for the filing of the proposed third further amended defence for the following reasons:

(1)    The existence of the petroleum lease is a fact and courts should not, even if they have power to, proceed to determine matters contrary to known existing facts. See Aon Risk at [14], [71]; Granitgard Pty Ltd v Termicide Pest Control Pty Ltd [2008] FCA 865 at [23]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035 at [14]-[18].

(1)    There is no injustice to the applicant. The State does not contend that the application cannot proceed to hearing or that the new fact defeats their claim.

(2)    The awareness of the applicant that the State was conducting historical land tenure searches is relevant.

(3)    This matter was brought to the attention of the applicant as soon as the State became aware of it. See Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 4) [2006] FCA 1552 where leave to amend was granted on the fifth day of a two-week trial, compare Rooney v ABB Grain Ltd [2010] FCA 1392 at [240]-[241].

99    The Attorney, as intervener, notes that at the case management conference held on 26 May 2014, the applicant advised the parties that it intends to make a claim for compensation against the Commonwealth to the extent that “just terms” compensation is not recovered from the State in this proceeding. It notes that that claim is to be pursued by the applicant either amending its originating application in this proceeding, or commencing a new proceeding against the Commonwealth and then having the two proceedings consolidated.

100    The Attorney says the Commonwealth will deny any liability to pay compensation to the applicant, and proposes to rely upon all of the tenures referred to as recently identified by the State in its defence of the foreshadowed claim for compensation against it.

101    The Attorney submits that the interlocutory application should be dismissed because the Commonwealth should not be precluded from relying upon factual matters that bear directly upon any putative liability to pay compensation to the applicant in circumstances where:

(1)    the Commonwealth made admissions in good faith based upon representations by the State, and bears no responsibility for additional historical tenures being only recently discovered;

(2)    at the time the admissions were made, the applicant had not advised that it would also pursue a claim for compensation against the Commonwealth; and

(3)    the trial of the proceeding has not yet commenced and the applicant has not suffered any prejudice that cannot be remedied by an order for costs against the State.

102    The Attorney further contends that an important factor for the Court to take into account is that the admissions that are being made by the Commonwealth are contrary to the facts as now revealed by the State’s further investigations. Put another way, it submits that by seeking to prevent the Commonwealth (and the State) from withdrawing relevant admissions, the applicant asks the Court to make a determination of compensation on the basis of a factual premise that the applicant now knows to be wrong.

103    Further, it submits, it is not correct to say, as the applicant does, that at the time the Commonwealth agreed to a consent determination of native title in the Ngaanyatjarra Lands determination, the Commonwealth also “agreed that the vesting of the [Reserve] had extinguished a native title right of exclusive possession”, as Mr O’Dell suggests. It submits that Recital G makes clear that agreement in the latter terms was given by the State and not by any other respondent party to the litigation. Nor was the Commonwealth a party to the MOU entered into at the time.

104    The Attorney also notes that the applicant prepared for the imminent hearing on the basis that it would have held an exclusive native title but for extinguishment. The Attorney submits that that much can be accepted, but it does not automatically lead to the conclusion that the applicant will be prejudiced if the Government parties are permitted to withdraw their admissions. For example, large parts of the witness statements are directed to issues of connection and that evidence remains relevant irrespective of questions of extinguishment. Further, evidence regarding the exercise by claimants of usufructuary rights over the claim area (or an inability to exercise such rights), continues to be relevant to a claim for compensation for the extinguishment of non-exclusive native title.

105    The Attorney submits the situation can be contrasted with that of a party who has refrained from gathering evidence of factual matters because it believed they were not contentious, and who is then faced with an evidentiary shortfall and seeks to amend. In this case, the applicant’s complaint is more to the effect that it has gathered evidence that may be superfluous if the Commonwealth and the State are permitted to withdraw admissions. In that case, the Attorney submits, the applicant’s remedy would lie in an order for costs thrown away against the State – not an order effectively precluding the Commonwealth from relying upon a legitimate basis for resisting the imposition of a liability to pay compensation to the applicant.

106    Finally, the Attorney submits, there is no evidence before the Court that the applicant’s funding will be put at risk if the admissions are withdrawn and that the proceeding will retain its status as “test case” as there is not yet any judicial guidance regarding the assessment of compensation for the extinguishment of non-exclusive native title rights.

107    The competing considerations identified by the applicant, the State and the Attorney make the exercise of judicial discretion in relation to the interlocutory application of the applicant difficult.

108    In the result, the Court considers that the State should be able to withdraw the admissions previously made concerning exclusive possession native title and the Attorney/Commonwealth should not be considered irrevocably bound by the Attorney’s previous admissions in that regard.

109    In doing so, as noted above, the Court does not accept the suggestion put by the State that it has not stated its position in a “pleading” for the purposes of the Rules. The Attorney makes no such submission.

110    From the outset the Court made orders requiring the applicant to put on a statement of facts, issues and contentions in order clearly to identify those material facts and issues the applicant considered pertinent to its compensation claim under the NTA. The Court then required the State effectively to plead to that statement in order to ascertain what issues of fact and law would remain outstanding between the parties. There can be no doubt that in the initial defence and the subsequent amended defence the State made admissions to the effect that the relevant native title at material times was of an exclusive possession nature. The State now wishes to resile from that admission in the light of new factual materials by way of historical tenure data that have come to light. The Attorney wishes to follow suit, in effect.

111    If this matter only involved a case of the State wanting to change its position as to the nature of the relevant native title that it was prepared to admit, and did not involve the Attorney/Commonwealth, I would have been inclined to refuse the State’s application for leave to file the proposed third further amended defence and to make the orders sought by the applicant against the State in the interlocutory application.

112    The starting point is the background to this compensation application set out above. The Ngaanyatjarra Lands determination, from which the Reserve was excised, and in relation to which exclusive possession of native title was recognised, undoubtedly created the general expectation that, but for the extinguishment caused by the creation of the Reserve, exclusive possession native title would have existed over the Reserve as all the lands surrounding it. That position was reflected in the initial pleadings of the State (and adopted by the Commonwealth) in this proceeding.

113    While it might be correct to say that nothing in that determination or the other agreements made with the State about that time bind the State to any particular position so far as the nature of the native title on the Reserve is concerned, it is difficult to avoid the conclusion that all parties at material times when this proceeding was commenced held the view that but for the extinguishment created by the Reserve exclusive possession native title existed.

114    Then there is the question of the admissions initially made. The admission initially made was, on the face of it, made deliberately and the reason given for the application to withdraw the admission is not, to my mind, adequately explained. It seems that in recent times, from about March 2014, the State has embarked on a process of gathering further tenure information of an historical nature to ascertain whether its initial admission should be maintained. This search has not been required by the Court and is not a necessary feature of a compensation application under the NTA. The detriment or prejudice to the applicant by such a course is obvious. It has reasonably maintained its application since it was filed on the basis of a belief that the State would not contest the view that, but for extinguishment at material times, native title holders would have had an exclusive possession native title. For the State, less than three months before trial, to withdraw that admission not only would defeat the reasonable expectations of the native title claim group members, but also serve to frustrate the considerable preparations for trial and the basis upon which the trial was to proceed from 19 August 2014. Compensation proceedings under the NTA are different from native title determination proceedings. Once the compensation claim has been made and a respondent is required to state its position in relation to what has been pleaded against it, the proceeding is no different from any other piece of civil litigation where admissions are made. The State is not at liberty to treat its initial admissions as provisional only.

115    At one level, one can understand that if the “true facts” emerge at some point it may be open to a party, on that basis, to seek leave to withdraw an admission so that the Court can decide a proceeding on what the facts of the case truly are. The State, however, has had quite some time to make those inquiries, yet without any entirely adequate explanation, has only chosen to make further tenure inquiries as of March 2014. Mr O’Halloran’s affidavit makes it clear that it would have been possible for the State to have made such inquiries, by reference to digitised and consolidated information, from early 2013. That is at least the inference I draw from the limited evidence put on by the State.

116    However, for me the position of the Attorney/Commonwealth complicates the consideration of the exercise of my judicial discretion considerably. I do not consider the Commonwealth can be said to have proceeded on the same basis as the State at all material times. It has not sought to put all the same issues in contest in this proceeding. It accepted the State’s tenure searches as accurate at all material times. That is understandable as the State is the custodian of the tenure records. At the same time, the Commonwealth has been put on notice, through the Attorney, that the applicant wishes to claim just terms compensation from it, should the circumstances arise.

117    If the Attorney were not entitled to alter its position in such circumstances, taking account of the recent tenure information made available by the State, then in my view the case or prospective case for compensation against the Commonwealth could be determined in this proceeding on an artificial basis. I accept the submission made on behalf of the Attorney by senior counsel that in all of those circumstances, the intervener should not be bound for all time by an admission made on a certain basis at an earlier time.

118    It is not appropriate, in my view, to find that the State is bound by its admission but the Commonwealth is not, and proceed to hearing on that basis.

119    In the result, but not without real misgivings, and taking into account all of the relevant principles, I should exercise my judicial discretion to allow the State to alter its position as proposed in the State’s proposed third further amended defence. In those circumstances I would refuse the applicant’s interlocutory application dated 4 August 2014 and grant leave to the filing of the State’s proposed third further amended defence.

120    I should observe that the applicant is not thereby prevented from pursuing its compensation application, although it is understood that, if the State can prove that at material times relevant native title holders held a non-exclusive native title right, such a finding may have implications for the assessment of any compensation the applicant and compensation claim group members may be entitled to. Such issues, however, remain for determination at the hearing of the application.

121    I will list the proceeding for further directions.

orders

122    The following orders are appropriate:

1.    The applicant’s interlocutory application dated 4 August 2014 be dismissed.

2.    The respondent have leave to file its proposed third further amended defence.

3.    The matter be listed for directions at 9am on Friday 8 August 2014.

Associate:

Dated:    7 August 2014