FEDERAL COURT OF AUSTRALIA

MT (deceased) v State of Western Australia (No 2) [2015] FCA 697

THE COURT ORDERS THAT:

1.    This interlocutory application be heard separately from the proceedings WAD359/2013, WAD94/2014, WAD357/2013 and WAD374/2013.

2.    This proceeding (WAD6124/1998) be struck out pursuant to s 84C of the Native Title Act 1993 (Cth), alternatively be dismissed pursuant to R 26.01(1)(c) of the Federal Court Rules 2011 (Cth), alternatively be dismissed pursuant to R 5.23(1)(b) of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

1    This proceeding, WAD6124/1998, is a claimant application made under the Native Title Act 1993 (Cth) (NTA) that was first conceived in 1996, in the days before the NTA required such applications to be authorised by those on whose behalf the application was made. In 1999, with the assistance of lawyers, the claimants, pursuant to an order of the registrar made 29 September 1999, amended the claim so that, thereafter, the applicants comprised 10 named persons, including Mr Greg Francis, and the claim group comprised some 85 persons whose names were listed in Attachment A to the claim.

2    In the very first handwritten claimant application lodged with the National Native Title Tribunal (NNTT) on 8 October 1996, under the then provisions of the NTA, reference was made to the “Djabera-Djabera People”, although as I explained in an earlier decision relating to this matter, MT (deceased) v State of Western Australia [2013] FCA 1302, the application as amended in 1999 (first amended application) did not, on its face, appear to claim native title over the area the subject of the claim for any such group. Rather, the first amended application appears on its face to be for the 85 persons mentioned in Attachment A. In that earlier decision, I dismissed an application by the Kimberley Land Council Aboriginal Corporation (KLC), one of the respondents to WAD6124/1998, to strike out the proceeding pursuant to s 84C of the NTA on the grounds that s 62(1)(a)(v) as it applied at material times was not met as the “basis” on which the applicant was said to be authorised was not dealt with, and because the claim was made by a subgroup without the authorisation of the wider group.

3    I did, in that decision, however, indicate at [100] that if the proceeding continued to languish in the way that it had for much of the previous 10 years, then the applicant might well be required by the Court to show cause why the proceeding should not be dismissed due to its generally unsatisfactory formulation and state of progress.

4    That previous decision was handed down on 14 November 2013.

5    Subsequent to that, I ordered that this proceeding and a number of others, being WAD359/2013, WAD94/2014, WAD357/2013 and WAD374/2013 (related proceedings), be heard together with a trial to commence, on or near country in the Kimberley region of Western Australia, on 21 September 2015.

6    By orders made 4 July 2014, relating to the trial, the various applicants and respondents were required, in effect, to state their cases and put on their evidence, including expert evidence in advance of the trial. The applicant in this proceeding was thus required to:

(1)    file and serve a statement of issues, facts and contentions in relation to connection issues on or before 1 December 2014;

(2)    file any reply to any document filed by a respondent by 5 March 2015;

(3)    file any expert evidence reports by 1 April 2015; and

(4)    file and serve a list of proposed witnesses (other than expert witnesses) and a statement of evidence for each such witness upon whose evidence the applicant will rely in relation to connection issues on or before 7 July 2015, being the date of the hearing of this present matter before the Court.

7    The applicant has failed to file and serve a statement of issues, facts and contentions by the due date or at all and has elected, on the face of it, not to put on any expert evidence or file any witness statements in the proceeding. As explained further below, it appears in all the circumstances that the applicant has chosen not to prepare for or in any relevant sense participate in the forthcoming trial.

8    The circumstances that have resulted in this situation arising have, in many respects, been canvassed in my earlier decision referred to above and also discussed below. In short, following the 1999 amendment of the claim, the matter was judicially case managed by Wilcox J. In late 2002, his Honour considered it was appropriate for the Court to appoint an expert anthropologist, Mr Geoffrey Bagshaw, to inquire into and report upon the identification, name or description of persons who might fall within the group of people described in the application as the “Djabera-Djabera People” and who might be members of any other group who apparently have such an association with the claim area, as might give rise to a native title claim in relation to the land.

9    Mr Bagshaw subsequently produced his report in late 2003 (Bagshaw Report). In it, he dealt with the traditional affiliations of various members of the claim group and the groups who might have a traditional association with the claim area.

10    As explained below, the named applicants did not appear to dispute the substance of the findings made. The late Mr M Torres and Mr Greg Francis indeed appeared generally to accept them as correct as of late 2003.

11    Subsequently, the area covered by the claim was reduced, resulting in further amendments to the claim including one ordered by Gilmour J on 6 September 2012 (second amended application). The latter amendment was made, as discussed below, on the understanding that the area now covered by the claim correlates with an area with which Jabirr Jabirr people are traditionally associated. On that basis, again as further discussed below, Mr Greg Francis accepted that the claim needed to be further amended to reflect that understanding.

12    Yet, as noted in my earlier decision, no steps have been taken to make any such amendments and indeed there has been virtually no action of substance to advance the claim since the time of my previous decision, save for unsuccessful attempts through case management to achieve some resolution or advancement of the proceeding in that regard. In substance, as noted previously, nothing has happened to advance this proceeding since the Bagshaw Report was made available to the parties to the proceeding more than 10 years ago.

13    It is in these circumstances, with the trial imminent, that KLC now applies for the following interlocutory orders:

(1)    That this interlocutory application be heard separately from the proceedings WAD359/2013, WAD94/2014, WAD357/2013 and WAD374/2013.

(2)    That the proceeding WAD6124/1998:

(a)    be struck out pursuant to s 84C of the NTA;

(b)    alternatively to (a), be dismissed pursuant to R 26.01(1)(c) of the Federal Court Rules 2011 (Cth);

(c)    alternatively to (a) and (b), be dismissed or stayed pursuant to R 5.23(1)(b) of the Rules.

(3)    Further or alternatively to the orders sought at [2]:

(a)    orders pursuant to s 84D(1) of the NTA that:

(i)    the fifth applicant (that is to say the applicant in proceeding WAD6124/1998) produce evidence to the Court that it was authorised to make the amended native title determination claimant application filed on 10 September 1999; and

(ii)    the fifth applicant produce evidence to the Court that it is authorised to deal with matters arising in relation to the second amended application, being the amended application the subject of an order made by Gilmour J on 6 September 2012; or

(iii)    alternatively to (ii), Mr Greg Francis produce evidence to the Court that he is authorised to deal with matters arising in relation to the second amended application, being the amended application the subject of an order made by Gilmour J on 6 September 2012;

(b)    an order that the fifth applicant show cause why the proceeding WAD6124/1998 should not be dismissed.

14    At the hearing of its interlocutory application on 7 July 2015, KLC primarily pressed for orders in terms of proposed order [2] above, that is to say, KLC sought to strike out or dismiss the proceeding WAD6124/1998 on one or other of three grounds.

15    The State of Western Australia, while providing submissions in relation to the principles governing such applications, neither consented to nor opposed the primary relief sought by KLC.

16    Mr Greg Francis appeared at the hearing of the strike out application. He has appeared in this and other proceedings involving or affecting the applicant. Whether or not he is authorised to represent the applicant on this interlocutory application or in the proceeding more generally is discussed further below; it appears, however, that he is not. He only represents his own, including his Leo, family interests.

17    Three primary issues therefore arise on the interlocutory application:

(1)    whether proceeding WAD6124/1998 should be struck out pursuant to s 84C of the NTA because the claim as amended in 1999 was not authorised under s 61;

(2)    alternatively, whether the proceeding should be dismissed pursuant to R 26.01(1)(c) of the Rules, on the basis it does not disclose a reasonable cause of action;

(3)    alternatively, whether the proceeding should be dismissed or stayed pursuant to R 5.23(1)(b) of the Rules, because of the applicant’s default in complying with the programming orders made 4 July 2014.

18    To the extent that it is necessary, I would make an order in terms of proposed [1] above. Because the Court has previously ordered that proceeding WAD6124/1998 be heard together with the related proceedings referred to in proposed order [1] above, KLC took the precaution of seeking the order sought. In my view, the formal order sought is probably not required as the order earlier made was designed to ensure the final hearing of the various proceedings at the same time. Nonetheless, to the extent that variation of that earlier order is required to enable the application of KLC to strike out proceeding WAD6124/1998, then it is appropriate that the order be made. There is no apparent reason why the various parties in the related proceedings need to be made parties to the hearing of the strike out application.

should proceeding WAD6124/1998 be struck out pursuant to s 84C of the Nta?

19    Some of the background to this proceeding – which may for present purposes be called the Djabera Djabera claim – has been mentioned above. It is partly set out at [15]-[31] of MT (deceased). In that earlier decision I dismissed the application by KLC to strike out the Djabera Djabera claim pursuant to s 84C on the basis that the second amended application was not adequately authorised under s 62(1)(a)(v) of the NTA as the “basis” on which the applicant was purportedly authorised by the claimants to make that application was not adequately dealt with, and also because the application should be seen as one brought by a subgroup on behalf of a larger group of persons, in circumstances where the larger group of persons, who ought to have been included in the claim group, were not mentioned and had not authorised the making of the application.

20    KLC says that it does not seek to reagitate either of the grounds that were raised and dismissed by the Court in that earlier decision.

21    Rather, KLC submits that when the registrar made orders on 29 September 1999 for the amendment of the original claimant application, the amendment was not then authorised.

22    Section 84C(1) enables a party to a proceeding to apply to the Federal Court to strike out the main application if it does not comply with s 61.

23    Section 84C(1) is couched in slightly unusual terms in that it does not expressly empower the Court to strike out an application which does not comply with s 61, in as many words, but enables a party to the proceeding at any time to apply to the Federal Court to strike out the application. It assumes or implies the power of the Court to do so.

24    Section 84C(2) requires the Court, before any further proceedings take place in relation to that main application, to “consider the application made under subsection (1)”.

25    As has been pointed out on other occasions, the obligation to “consider” the application made under subs (1) does not require the Court also to determine the application made, and so the Court has some discretion as to when the determination of such an application should be made. In Williams v Grant [2004] FCAFC 178, Lander J, with whom North and Dowsett JJ agreed, at [57]-[60], indicated that:

    In some cases it will be appropriate to determine the application at the same time as it is considered, for example, where the application to strike out is obviously without merit then it may be dismissed immediately.

    In other cases it may be difficult to decide whether the application should succeed. For example, where the issue is whether an applicant has been authorised by the claim group. In such a case it may be more appropriate to hear and determine the application at the same time as the main application.

26    To similar effect, in Hazelbane v Northern Territory of Australia [2008] FCA 291, Mansfield J, at [15], in the circumstances of that case, said that whether such an order is appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. His Honour suggested that the apparent attraction of expedition and economy may, in such a case, be misleading.

27    Those principles and observations should be borne in mind in the course of finally considering whether this strike out application under s 84C should be determined now or, for example, left to the trial judge who will hear the claim, along with the related proceedings, at the trial commencing in September.

28    The present strike out application under s 84C refers to the question of the authorisation of the claim as amended in 1999. Of the 10 persons named as the applicant in that first amended application, five are now deceased, and have not been replaced. The surviving named applicants are Paul Cox, Greg Francis, Linos Saaban, Eileen Torres and Ramlie Haji-Noor (Ramlie Noor in the application).

29    As recounted above, in November 2002, Wilcox J, who was then the docket judge managing this proceeding, considered it appropriate to make an order for a court-appointed anthropologist, Mr Bagshaw, to enquire into and report on the identification, name or description of persons who might fall within the group of people described in the application as the “Djabera-Djabera People” and who might be members of any other group who apparently have such an association with the claimed land as might give rise to a native title claim in relation to the land.

30    As to what then happened, I refer to what I said at [21]-[25] of my earlier decision, namely:

21    Mr Bagshaw duly provided his report to the Court as required and parties were provided with a copy of it. In it he expressed the opinion that the area the subject of the claim comprises land traditionally associated with the ‘Jabirr-jabirr people’ and ‘Nyul-nyul people’, as well as the Nimanbur people. He said the description ‘Djabera-Djabera’ was an obsolete form of Jabirr-jabirr. He then considered the ancestry of the persons listed in Att ‘A’ of the claim, who were said to be the claim group members. He found that some had no relevant ancestry from any of these three groups. He identified the others as Jabirr Jabirr, or Nyul Nyul, or Nimanbur by descent. He also said there were persons not in Att ‘A’ who would appear to be capable of inclusion in the claim group by reason of their descent from one or other of these groups.

22    Following the circulation of the Bagshaw Report mediation between relevant parties was attempted apparently with a view to refinement of the existing claim or, perhaps, its withdrawal and the lodgement of new claims that reflected the opinions of Mr Bagshaw.

23    The evidence before the Court shows that, at a directions hearing on 12 December 2003 before Wilcox J:

•    Mr Torres (deceased) informed the Court that ‘basically we are all happy with the report’.

•    Ms K Guest appearing for KLC (as the respondent representative body) informed the Court that KLC was of the view that the claim needed to be withdrawn because it had no chance of success, and that depending on the outcome of a forthcoming meeting KLC might take out a strike out application.

24    Further, at a directions hearing on 18 March 2005, counsel for the State in written submissions identified a range of apparent difficulties with the existing claim.

25    Nonetheless, despite attempts by the Court and all relevant parties and the National Native Title Tribunal as mediator, the circulation of the Bagshaw Report has achieved little, if anything, by way of resolution of the historic difficulties with the claim that Wilcox J identified in 2002.

31    As a result, on 2 August 2012 I ordered that mediation in the NNTT cease and the proceeding be referred to case management before a deputy district registrar. In the meantime, KLC as the native title representative body in the Kimberley region caused further anthropological work to be conducted as a result of which some earlier claimant applications made on behalf of the Nyul Nyul people were discontinued and proceeding WAD359/2013 – the Bindunbur (Area A) claim – was lodged. Subsequently the Bindunbur (Area B) claim, WAD94/2014, was lodged. See generally McKenzie v State of Western Australia [2013] FCA 1058.

32    The Bindunbur (Area B) claim overlaps the Djabera Djabera claim area.

33    In my earlier decision, while I refused to strike out the Djabera Djabera claim on the grounds then advanced, for the reasons then given, I observed that it was time for action by the applicant in the Djabera Djabera claim. In that regard, I set out what I said at [96]-[100] of my earlier decision:

96    Wilcox J plainly was so concerned with the difficult claim group issues raised by the proceeding in 2002 to have then commissioned the Bagshaw Report. That step, by a judge of this Court, was then, and remains today, an exceptional step. Normally the parties are expected, with the assistance of a native title representative body, to resolve issues concerning the traditional ownership of country. The Bagshaw Report was ordered to assist the claim group members, in particular, to resolve this issue. It appears mediation was ordered following the circulation of that report to the parties, but in 10 years since the circulation of the report, the proceeding has barely advanced.

97    Mr Gregory Francis has explained to the Court, from the bar table, that he has raised proposals for how the current proceeding might be dealt with in order to reflect opinions expressed in the Bagshaw Report. It is not at all clear to the Court, however, that all other members of the claim group or all other named applicants necessarily agree with the possible ways forward that Mr Francis has outlined. Certainly it appears that KLC, as the native title representative body, does not agree with the maintenance of the proceeding.

98    What is clear from what has been said on behalf of KLC in this proceeding, and by the Court in the related McKenzie v State of Western Australia [2013] FCA 1058 proceeding, is that considerable attention is being given by the native title representative body to the resolution of the range of issues identified in the Bagshaw Report in relation to this and related claim areas.

99    While the strike out application has not succeeded on this occasion, because of the longstanding lack of real progress in this proceeding, and the fact that resolution of the issues identified even 10 years ago by Wilcox J remains problematic notwithstanding the benefit of the Bagshaw Report, I will cause this proceeding to be returned immediately to case management by a registrar of this Court so that the relevant parties, particularly the applicant and KLC, can engage in discussions and reflect on the best way forward.

100    If the proceeding continues to languish in the way that it has for much of the last 10 years, then it may be that the only option left to the Court will be for the Court to require the applicant, under the NTA, to show cause why the proceeding should not be dismissed due to its generally unsatisfactory formulation and state of progress. In that regard, in relation to another proceeding which was suffering from difficulties not unlike those I have identified in this case, the Court ultimately dismissed the proceeding: see Budby on behalf of the Barada Barna People v State of Queensland (No 2) [2013] FCA 314.

34    I should note that, since then, the decision in Budby on behalf of the Barada Barna People v State of Queensland (No 2) [2013] FCA 314 has been the subject of a successful appeal: see Budby on behalf of the Barada Barna People v State of Queensland [2013] FCAFC 149.

35    It is apparent from [97] of my earlier decision that, while I heard from Mr Greg Francis on the occasion of that earlier strike out application, and have heard from him again in relation to the present strike out application, there is a lack of clarity, to put it generally, as to whether he actually purports to represent or indeed is authorised by other surviving named applicants to represent the applicant, or whether he only purports to represent himself, as one of the named applicants and certain other families who, as his does, identify as Nyul Nyul people. In the event, I do not consider he represents or seeks to represent the applicant, only his and his Leo family interests.

36    A little more background should also be set out at this point. The first amended application in 1999 not only clarified who were the named applicants and the claim group, but also reduced the original claim area, principally reducing the extent of the offshore areas claimed.

37    In 2012, however, by the second amended application and orders made by Gilmour J on 6 September 2012, the claim area was further reduced, to its current area, with the principal changes being the moving, significantly further to the west, of the eastern boundary of the claim area; and the extent of the offshore areas claimed in the vicinity of Beagle Bay was further reduced.

38    While in my earlier decision I found that, on its face, the Djabera Djabera claim group was simply the 85 persons mentioned in Attachment A to the claim and the application did not purport to identify the claim group by reference to any apical ancestors or by reference to any particular language group formula, I also noted that the Bagshaw Report stated that the expression “Djabera Djabera” was an archaic form of the name of an Aboriginal group who now describe themselves as “Jabirr Jabirr” people (and who now maintain proceeding WAD357/2013), and that persons in the claim group included persons who identified as Jabirr Jabirr people, Nyul Nyul people, Nimanbur people and even some other groups who did not appear to have any connection with the claim area, including a person of European descent who could not, on any view, hold traditional interests under the NTA.

39    It is also important to note, as KLC now submits, that Mr Greg Francis has indicated to the Court, including in his affidavit made 26 June 2015 and read at the current strike out hearing, that he and his family are descended from Nabi and Leo. In his affidavit, Mr Greg Francis states:

When the Missionaries came to Beagle Bay Mission area from Disaster Bay Mission they encountered Bullybullama who governed all of the Nyul Nyul country and had 8 wives.

He was recognised by all as ruler bestowing the title of King on him.

The Leo family, who we are the descendants of Nabi and Leo who was the first child of Abraham with Naomi. Naomi was his first wife.

(Emphasis as in original.)

40    Mr Greg Francis also says in his affidavit that KLC “has fought us on this point and have several times denied our rights as the Heir Apparent” (emphasis as in original).

41    As Mr Francis had previously told the Court from the bar table at the hearing of the earlier strike out application on 13 November 2013, in effect his interests arise from being a member of a Nyul Nyul family. He draws a distinction between the two surviving named applicants who are identified as Jabirr Jabirr people and the three who are not. In that regard, Mr Greg Francis stated to the Court on 13 November 2013, that:

Myself and, you know, Paul Cox, Linos Saaban who is the other named applicant, non Jabirr Jabirr ones, we would like to get off the claim. … We believe that at the time that we were going to sit down and do a section 66B removing the Nyul Nyul and Nimanbur named applicants. We wanted also to change the description of the group by having a formal meeting with our registered members and request that they all remove themselves.

They’re not Jabirr Jabirr members, remove themselves, and our family all agreed on that. Unfortunately, it’s – Ms Cole [KLC principal legal officer] has been directing everything since.

42    Mr Greg Francis also then described the process by which the 1999 membership of the Djabera Djabera claim group had been arrived at, and said:

We understood the Native Title Act at the time was for a communal claim, and we did it on the basis that it was a community claim then; we all went together. Myself and [Mr M Torres] went about recruiting the families because I was involved with an organisation called the Beagle Bay Outstation Council. We were lobbying ALT to return our lands back.

I got involved with that. I joined up with [Mr M Torres], and we went then and recruited the senior people from all the families. I approached the Manado family myself, the Dann family myself, the Cissy Djiagween and Carnot Bay people myself. I spoke to them also understanding that none of them wanted to talk to [Mr M Torres] at the time because the Kimberley Land Council had started, I guess, a campaign of innuendos and lies about his past … .

… And because of those personal differences between [Mr M Torres] and the families, those families refused to join us; the Manados, the Danns and the Carnot Bay people.

43    What Mr Greg Francis then told the Court effectively confirmed what Mr Bagshaw had concluded in his report (which Mr Bagshaw has confirmed by his affidavit made 5 June 2015, read at the hearing of the present strike out application) namely:

In view of the foregoing observations, I formally conclude that, as presently constituted, the [WAD6124/1998] applicant group (i.e. the totality of individuals named in ‘Attachment A’) is principally an aggregation of selectively recruited kin and consociates, rather than a genuinely inclusive, socio-culturally coherent group defined on the basis of recognised descent principles, common socio-linguistic heritage, territorial affiliation or the like. In this respect, it is not fully representative of all Jabirr-jabirr and Nyul-nyul (or, indeed, Nimanbur) descendants who are likely to have an association with the claim area of an order that might reasonably give rise to a native title claim.

44    At the hearing of the earlier strike out application, on 25 October 2013, Ms Eileen Torres, one of the named applicants, also appeared in person. Mr Greg Francis then, as now, sought to represent the interests of his Leo family. He does not purport to speak for Jabirr Jabirr people such as Ms Eileen Torres.

45    It should also be noted that while Mr Paul Cox, another of the surviving five named applicants, initially provided affidavit evidence in 1999 confirming that the named applicants were authorised to make the application on the part of the claim group in the first amended application, in an affidavit made 2 June 2015 and read in the current strike out proceeding on behalf of KLC, Mr Cox identifies himself as an Nimanbur man who is also a member of the Bindunbur native title claim group. He says he does not want to be a member of the applicant in the Djabera Djabera claim and does not want to have anything to do with that claim. He further states:

[5]    That list does not include all people who have rights and interests in the Djabera-Djabera claim area.

[6]    That list has lots of ‘outsiders’ – people from all over the place who aren’t the right people for the Djabera-Djabera claim area. I don’t even know some of those people.

[7]    That list has some people who do have rights and interests in that area but does not include their immediate family members who also have rights and interests in the area.

[8]     I have not been involved in the Djabera-Djabera native title claim for a long time. Since 2006 I haven’t been involved in any of the decision-making.

[9]     I haven’t talked with Greg Francis, Eileen Torres, Ramlie Haji Noor or Linos Saaban about what should happen with this claim since at least 2006.

…

[11]    I have never given Mr Francis or any other member of the Djabera Djabera applicant permission to speak on my behalf. They have never asked me for permission to speak on my behalf.

[12]    I don’t want the other members of the applicant in the Djabera Djabera native title claim to run the native title claim. I don’t want them to represent me or my family. I never told them that they could represent me.

46    This affidavit evidence, taken with the statements made to the Court by Mr Greg Francis on the hearing of the earlier strike out application and on the hearing of this application, and in his affidavit filed and read in the hearing of this application, all go to confirm that Mr Greg Francis does not in fact have authority to speak for all the surviving named applicants or the applicant in the Djabera Djabera claim. He, to be fair, only purports to speak for himself and his immediate Leo family, as he has done in other, earlier proceedings: see, for example, KK (deceased) v State of Western Australia (2013) 217 FCR 115; [2013] FCA 1234.

47    What becomes apparent when one considers his statements, both from the bar table as an interested person, and in his affidavit read in the current strike out application, is that Mr Francis has long recognised that the current Djabera Djabera claim and claim area requires significant reformulation if it is to have any chance of success. As KLC notes, at the hearing on 25 October 2013, Mr Francis made it clear that the purpose of reducing the size of the claim area on the second amendment in 2012 before Gilmour J was to confine the claim to Jabirr Jabirr traditional country, so such a reformulation could be made. He then said:

ALP [ALT] and ourselves have been fighting over, I guess, the authority of who controls the land in the Djabera-Djabera claim today and our families have said we want to remove ourselves from the Djabera-Djabera claim, the Nyul and Nimanbur members. We would like to fix up the description of the group. Since we’ve moved the boundary out of Nyul land – Nimanbur land, we are willing to change the membership, but through the alteration of the membership group, the description of it, sorry. And also look at section 66B which we’ve been asking KLC, including Jesse Cole, for our section 66B meeting to look at changing the named applicants. Myself and Paulie Cox, we are not representing Jabirr Jabirr families. You know, currently two members representing Jabirr Jabirr families, Eileen and [Ramlie].

We believe the rest of us should remove ourselves happily. But we’ve always instructed KLC that Djabera-Djabera claim, if it’s to be removed, wants to be replaced by Jabirr Jabirr only claim. Not by a claim that represents three different tribal groups …

(Emphasis added.)

48    In answer to a question that I then asked of Mr Francis as to who would be left if his suggestion was acted upon, he replied:

Currently you would have only two named applicants, [Eileen] Torres and [Ramlie Haji-Noor]. [Linos], myself and Uncle Paulie, we don’t belong to the Jabirr Jabirr family groups, your Honour.

49    In other words, Ms Eileen Torres and Mr Ramlie Haji-Noor would be the remaining applicants because they would be the Jabirr Jabirr people representatives claiming in respect of Jabirr Jabirr country.

50    As KLC observes in their submissions on this strike out application, a major problem for the integrity of the current Djabera Djabera claim is that neither the composition of the “Djabera Djabera applicant” nor the “Djabera Djabera claim group” has been amended to accommodate the fact that the claim is recognised as being fundamentally deficient and only capable of being advanced by Jabirr Jabirr people. In other words, the claim group identified in Attachment A is not a traditional group capable of being recognised under the NTA as the holder of native title. This is made apparent by the Bagshaw Report with which key named applicants including Mr M Torres and Mr Francis have expressed substantial agreement.

51    I accept the submission made on behalf of KLC that both on the hearing of the earlier strike out application and now on the hearing of this application before the Court, the need for amendments to be made to the application has been clearly acknowledged by Mr Greg Francis, yet they have not been made. Indeed, on hearing of this strike out application, Mr Greg Francis, commendably, frankly admitted that the claim should be struck out (as he has previously); although, again to be fair to him, he did not wish for this occur until a proposed meeting of expert anthropologists, soon to be conducted in relation to the forthcoming September hearing, was completed. To be put it shortly, it appears Mr Greg Francis hopes that historic differences he has harboured with others about who holds interests in relation to certain areas, in both this and the related proceedings to be heard in September, might be resolved by the anthropologists, making redundant his concerns.

52    None of this, however, is particularly new. At a mediation meeting with the late Mr Dan O’Dea of the NNTT in 2004, the same range of issues that are now mentioned by Mr Francis were placed before Mr O’Dea. In Mr O’Dea’s mediation progress report to the Court dated 31 March 2004, by reference to the Bagshaw Report, it was noted that the applicant planned to amend the claim area and the claim group “to make it a representative Djabera Djabera (Jabirr-Jabirr) language group native title application”.

53    In my view, when one takes into account all of these circumstances disclosed by the uncontested evidence before me, it is reasonable to conclude, as KLC submits, a number of things:

(1)    First, that as at 29 September 1999, when the first amendment to the original Djabera Djabera claim was made, the 10 named applicants were in fact not collectively authorised by all the persons for whom that application was purportedly made or who appeared to have interests in the claim area, including:

(a)    by descendants of the named claim group members (who were not actually mentioned in the claim);

(b)    by other members of the families who were said to have “elected” the named applicants, including Mr Francis;

(c)    the Dann and Manado families, who initially declined to join the claim group, and the Carnot Bay people (who appear not to have been approached); and

(d)    by other Jabirr Jabirr, Nyul Nyul and Nimanbur people who had not been, but should have been, included in the claim group.

54    In short, the evidentiary material now before the Court, and Mr Francis’ statements of his family’s position, makes it plain that the original claim as amended in 1999, with the 10 named claimants, purported to make a claim in respect of a claim area in respect of which it was being asserted that various peoples, including Jabirr Jabirr, Nyul Nyul and Nimanbur held traditional rights and interests. Yet, the full complement of such peoples (including the Manados, the Danns, the Carnot Bay people and various other members of the families of the 10 named applicants) did not collectively authorise the named applicants to bring the application. Rather, the individual named applicants, in particular Mr Greg Francis and the Mr M Torres, as “elected” representatives of individual families, organised the bringing of the application. The fact that certain families, such as the Manados and the Danns, were offered the opportunity to participate but declined it, and the Carnot Bay people were not approached, emphasises that not all persons who were recognised as possibly having traditional rights and interests in the claim area authorised the bringing of the first amended application in 1999.

55    Section 61(1) requires that, in relation to a claimant application, the person or persons who can make the application are “authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group”. It follows that where there is a group of native title holders wider than the particular group nominated (such as by Attachment A in this case), the wider group must authorise the bringing of the claimant application.

56    In this case, the evidence positively shows that persons within such a wider group were not engaged for the purpose of authorising the first amended application.

57    I therefore find that KLC is correct in making its submission that the first amended application, as of 1999, was not authorised pursuant to s 61 of the NTA and should be struck out under s 84C of the NTA.

58    As noted above, it is not necessary to determine every s 84C strike out application when it is considered. In some circumstances it may be appropriate for the application to be determined at the time of the hearing of the main application. This, however, is not a case like Hazelbane where Mansfield J explained why a delay in determination would be appropriate in a case such as that before his Honour. Here the detailed history of this matter, which has been set out above, discloses that there is nothing more to be said factually on this authorisation issue and it can be determined now.

59    It is also significant, in my view, while qualified in the limited way stated above, that Mr Greg Francis recognises that in light of the history of this matter the proceeding should be struck out. The unusual thing about the position Mr Francis generally takes is that, having regard to all the information now available to him and the other named applicants, he has long recognised that the existing proceeding needed amendment so that only Jabirr Jabirr claimants make an application in respect of traditional Jabirr Jabirr country. That simply has not occurred.

60    Indeed, no other named applicant comes before the Court to contradict the strike out application or to seek to sustain the claim. The various affidavits filed and read on behalf of KLC on the hearing of this strike out application confirmed that service of the interlocutory application has been appropriately effected on all five named applicants. None, apart from Mr Greg Francis, has elected to respond to the application.

61    In these circumstances there should be an order that proceeding WAD6124/1998 be struck out pursuant to s 84C of the NTA.

Should the Djabera Djabera proceeding be dismissed pursuant to r 26.01(1)(c) of the Rules?

62    Rule 26.01(1)(c) provides that a party may apply to the Court for an order that judgment be given against another party because “no reasonable cause of action is disclosed”.

63    KLC makes this application having regard to what they describe as the “current form” of the Djabera Djabera claim represented by the second amended application.

64    KLC expressly notes it has not sought a dismissal on the basis that the proceeding has no reasonable prospect of success, preferring to adopt the view that the Rule as it applied prior to 1 August 2011 should apply here.

65    KLC also notes that reliance cannot be placed by it on s 31A of the Federal Court of Australia Act 1976 (Cth), which enables summary dismissal of a proceeding which has no reasonable prospects of success, because it came into operation on 1 December 2005 and applies only to proceedings commenced after that date.

66    KLC has thus reasonably followed the course adopted in this regard by Mansfield J in Hazelbane v Northern Territory of Australia [2014] FCA 886 at [120]-[121].

67    KLC also acknowledges that the “no reasonable cause of action” test is a stringent one and the question which the Court must decide is whether, based on the material presently before the Court, the second amended Djabera Djabera claim should not be permitted to go to trial in the ordinary way because it is apparent it must fail: see Hancock, Alan Roy v Visy Board Pty Ltd (ACN 005 787 913) [1997] FCA 113 (Nicholson J).

68    KLC submits that the second amended application must fail because:

(1)    The claim group is premised on a number of misapprehensions about the composition of native title claim groups, as discussed above.

(2)    Deep flaws in the proceeding exist and have existed both prior to and since the amendment of boundaries in 2012 and have for many years been accepted by the applicant as necessitating substantial changes to the composition of the native title claim group, changes which it is unwilling or unable to make.

(3)    Following the amendment of the boundaries in 2012, the second amended application is brought by some, but not all, Jabirr Jabirr people, Nyul Nyul people and Nimanbur people as well as a mixture of outsiders, to the land that is regarded by the applicant as no longer involving Nyul Nyul or Nimanbur land.

69    KLC submits that on Mr Greg Francis’ characterisation of the case, there is no prospect that the Nyul Nyul people, Nimanbur people or mixture of outsiders who are members of the claim group can succeed in establishing native title rights and interests in relation to the current claim area.

70    Further, it submits the remaining members of the claim group cannot succeed in establishing themselves as the only persons entitled to a determination of native title in relation to that area.

71    I have discussed the background and circumstances in which the current application is made in dealing with the previous issue. I consider that KLC’s submissions concerning the untenability of the claim should be accepted.

72    This is a claim which, as Mr Greg Francis recognises, would need to be converted into a claim by Jabirr Jabirr people to traditional Jabirr Jabirr country to have any chance of success.

73    It is also plain enough that while some Jabirr Jabirr people are included in the current claim group, not all are. A claim by only a section of a possible claim group cannot succeed: see Hazelbane at [36].

74    No application has been made by the applicant to so amend the claim, despite the long history in which the applicant has been invited, indeed exhorted, to consider taking such a step since the Bagshaw Report became available and was generally accepted on behalf of key members of the named applicants more than 10 years ago.

75    In my view, it is demonstrated by the materials before the Court that the second amended application of the applicant discloses no reasonable cause of action, that there is no reasonable likelihood of any amendment to the claim being made and so the proceeding should be dismissed on that basis.

Should the Djabera Djabera claim be dismissed or stayed pursuant to R 5.23(1)(b)?

76    This rule provides that, if an applicant is in default, a respondent may apply to the Court for an order that the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant. Such an order can have immediate effect or be granted on conditions specified in the order. Rule 5.22(b) provides that a party is in default if it fails to comply with an order of the Court.

77    KLC submits that the applicant is in default because it has failed to comply with programming orders that have been made in the proceeding, as well as in the related proceedings mentioned above. In particular, it is said the applicant has failed to file and serve a statement of issues, facts and contentions by 1 December 2014, or at all, a default which exceeds six months. It has also not filed any expert reports by 15 April 2015, although KLC acknowledges that the applicant does not necessarily have to rely on such reports if it chooses not to do so.

78    KLC accepts that the failure of the applicant, an unrepresented party, in this respect would probably not warrant the exercise of the Court’s discretion to stay or dismiss the proceeding, if that were the only issue.

79    KLC submits, however, that the proceedings are deeply flawed and there is a long history of inaction, notwithstanding that the need to take action has been acknowledged on numerous occasions. In these circumstances, KLC submits that to stay or dismiss the proceeding would be an appropriate exercise of discretion.

80    KLC submits other factors in favour of the exercise of the discretion to stay or dismiss the proceeding include the unfairness to other parties and being required to meet a case where the current claim is deeply flawed and where no statement of issues, facts and contentions has been provided; and the likely significant addition to the hearing time of the related proceedings listed for trial in September in the event that the applicant participates in that hearing.

81    It is indeed a significant step for a court to dismiss, let alone stay, a proceeding on the basis of default. The State in its submissions observes that the Court could, not just in relation to the application for dismissal made under this rule but also under the other rules under which strike out or dismissal is sought, in effect, make a guillotine order whereby, unless the applicant were to take prescribed steps in the proceeding by a certain date, the proceeding would be dismissed.

82    In the circumstances of this particular proceeding, however, in my view, the submissions made on behalf of KLC should be accepted. An order facilitating the delay in dismissal of the proceeding is unwarranted and would be prejudicial to the interests of KLC, not to mention other parties engaged in the forthcoming trial, and the due administration of justice.

83    I have set out above the clear statements I made in the judgment handed down on the previous strike out application, dated 14 November 2013. As noted above, I said, at [100], that if the proceeding continues to languish in the way that it has for much of the last 10 years, then it may be that the only option left to the Court will be for the Court to require the applicant, under the NTA, to show cause why the proceeding should not be dismissed due to its generally unsatisfactory formulation and stated progress.

84    While the Court has not moved of its own motion, KLC has taken this strike out or dismissal application raising exactly the sort of issue that the Court referred to in that judgment.

85    When one has regard to the fact that for more than 10 years the applicant has had the benefit of Mr Bagshaw’s considered expert report, provided as a result of an order of the Court, and has elected to do nothing in the proceeding by way of amending the proceeding in order to obviate the deficiencies in the claim as identified by Mr Bagshaw (apart from reducing the claim area to remove the Nyul Nyul and Nimanbur area, as Mr Francis has explained), and, notwithstanding the clear warning provided by the Court in November 2013, that the proceeding needed to be put in order if it was not to be at risk of dismissal, has continued to do nothing at all in the proceeding by way of reformulation of the claim so that it was not susceptible to being struck out for failing to disclose a cause of action, or to prepare for the forthcoming hearing of the claim in September, dismissal of the claim must be considered almost inevitable.

86    The programming order made requiring the filing of a statement of issues, facts and contentions simply has not been complied with. Given the general unsatisfactory nature of the current formulation of the claim, discussed at length above, other applicants and respondents in the related proceedings can have no proper, indeed any, understanding of the case that could possibly be put by the applicant if it suddenly chose to appear at the trial. The whole purpose of that order was to enable the Court, and particularly the other parties, to know what the applicant’s case is and prepare for trial on that basis.

87    Further, no attempt has been made to put on any expert evidence. In his affidavit filed and read in the proceeding now before the Court, Mr Greg Francis addressed the question of his family being entitled by patrilineal descent to certain areas of land under traditional law and custom. But, Mr Francis has not, through the applicant, attempted to file any such case, or any other case. No expert evidence has been provided, although of course the claim might be made without expert evidence being led.

88    Further, Mr Francis plainly accepted at the hearing of the strike out application that any statements the applicant would need to file to advance any such propositions had to be filed under the orders on the day of the hearing, 7 July 2015, and that they were not about to be filed. Indeed, as noted above, Mr Francis substantively accepted that the proceeding should be struck out. For him it was simply a matter of when it should be struck out. He wanted the opportunity to engage (assuming it is open to him to do so) with the expert anthropologists at their forthcoming expert conference, in order to gain an understanding that his family’s rights and the interests of others with whom he has involved himself would be recognised at the hearing in September.

89    Mr Francis recognises that the claim of the Djabera Djabera can only be advanced on the basis that it is reformulated as a claim by Jabirr Jabirr people in respect of Jabirr Jabirr traditional country. He recognised that the reduction of the claim area as of the second amended application in 2012 was intended to have exactly that purpose. He stated so in the Court.

90    There is no other named applicant or other person who now comes forward to state or even suggest that they are about to comply with the programming orders made on 4 July 2014 and to advance a reformulated case. As noted above, the applicant has been served with KLC’s interlocutory application seeking strike out or dismissal but has chosen not to participate. No named applicant, apart from Mr Greg Francis has appeared as an interested person at the hearing of the strike out application. Mr Paul Cox, however, has positively stated he wants nothing to do with the claim. In these circumstances, it is unlikely, to a very high degree, that the applicant proposes to do anything further in relation to this proceeding.

91    This then is not a case where there is some passing default that can be remedied, easily or otherwise. This is not a case where there is some technical failure to comply with orders made. This is not a case where a party comes forward and, by reference to satisfactory explanation, seeks an indulgence to remedy its default. Rather, this is a case where nothing of substance has been done by the applicant in advancing the case since the Bagshaw Report was made available to it and its constituent members more than 10 years ago, and nothing is likely to be done in that regard.

92    I do not consider, therefore, that it is appropriate in these circumstances to make an order in the nature of a guillotine order which would facilitate some last ditch attempt by the applicant or some of its constituent members to resurrect its position. It has shown absolutely no interest in substantively advancing the proceeding. It has not participated in recent times. The only person to show any active interest has been Mr Greg Francis and he is a Nyul Nyul, not a Jabirr Jabirr person, on his own statements. Ms Eileen Torres has attended on one occasion on the previous strike out application, but has not participated since. Mention was made in passing at the hearing of Ms Lynette Clarke as a person who attended a case management conference in recent months, but she has not appeared. She is not, in any event, a named applicant. Nor is she one of the 85 persons named as members of the claim group. Whatever her general interest in the matter it is not relevant to the disposal of the strike out application.

93    For these reasons I consider that the Court should also make an order that the proceeding not merely be stayed, but be dismissed pursuant to R 5.23(1)(b).

conclusion and order

94    In these circumstances the following order is appropriate:

(1)    This interlocutory application be heard separately from the proceedings WAD359/2013, WAD94/2014, WAD357/2013 and WAD374/2013.

(2)    This proceeding (WAD6124/1998) be struck out pursuant to s 84C of the Native Title Act 1993 (Cth), alternatively be dismissed pursuant to R 26.01(1)(c) of the Federal Court Rules 2011 (Cth), alternatively be dismissed pursuant to R 5.23(1)(b) of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    8 July 2015