FEDERAL COURT OF AUSTRALIA

Hill on behalf of the Yirendali People Core Country Claim v State of Queensland (No 3) [2015] FCA 777

THE COURT ORDERS THAT:

1.    The Applicant and the State, attend, participate and act in good faith and reasonably and genuinely in a mediation of non-native title outcomes with respect to the area the subject of these proceedings (respectively, the claim area and the mediation).

2.    The mediation be convened before the Honourable Stanley Jones AO QC, mediator, or if he is not able or willing to undertake that role, by another person to be appointed by the court, in consultation with the Applicant and the State.

3.    Unless the Applicant and the State reach agreement beforehand, the mediation be convened on a date convenient to the mediator, the Applicant and the State on or before 5 February 2016.

4.    The State, in consultation with the Applicant, file a report to the Registrar of each of 30 September 2015, 23 December 2015, 31 March 2016, 30 June 2016 and 30 September 2016 with respect to the progress of the matter.

5.    Within 14 days of the completion of the mediation, the mediator file a report regarding the outcome of the mediation.

6.    In the event that, within 18 months of the date of this order:

(a)    An indigenous land use agreement is not registered upon the Register of Indigenous Land Use Agreements providing for the surrender of native title in respect of the whole of the claim area; and

(b)    An agreement made pursuant to s 87 of the Native Title Act 1993 (Cth) annexing a draft determination to the effect that native title does not exist in the claim area is not signed by each of the parties and filed,

a trial of the separate question pursuant to order 1 of the orders made on 13 June 2014 be set down for a hearing on a date to be fixed for a period of 2 days.

7.    At the trial of the separate question the Applicant not, without leave of the Court granted an application filed and heard before the trial, be permitted to call evidence.

8.    Liberty to apply.

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

REASONS FOR JUDGMENT

1    The Yirendali People, by the applicant, a collective term under the Native Title Act 1993 (Cth) (the Act) which presently comprises Mr James Hill, Mrs Martina Jacobs and Mr Jeffrey Lammermoor, have applied for a determination of Native Title in respect of a large area of land in Queensland based around Hughenden and covering land within the Charters Towers regional, Flinders Shire and Richmond Shire local government areas. That application was filed as long ago as 2006. I refer to the history of the application and its respondency beyond the State of Queensland in Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2015] FCA 300.

2    On 15 May 2015, in the face of a pending hearing in respect of the separate question set out in paragraph 1 of orders made on 13 June 2014, the Yirendali People, in open Court, by the applicant, admitted that they did not propose to adduce evidence at the hearing of that separate question. In effect, the Yirendali People admitted that they were unable to adduce evidence of connection. As a consequence of that admission, I vacated the trial of the separate question which was due to commence today. I also made provision for the filing of any consequential application by any party arising from the admission which had been made on behalf of the applicant.

3    As a consequence the State has come to propound orders directed to the determination of a revised separate question but postponing the hearing of that for 18 months so as to allow negotiations to occur to the end of reaching an agreement as to an Indigenous Land Use Agreement and also an agreement pursuant to s 87 of the Act that native does not exist in the claim area.

4    It is a feature of the proceeding that the defence pleaded, on behalf of the pastoralist respondents, is wider than a defence going just to a denial of the existence of the native title rights and interest claimed by the applicant on behalf of the Yirendali People but extends to a pleading that there is no native title at all in respect of the claim area either by absence of connection or extinguishment or both (strictly, a form of counter-claim).

5    It is to be remembered that an application for a determination of native title invokes an exercise of the judicial power of the Commonwealth. In Budby on behalf of the Barada Barna People v State of Queensland [2013] FCAFC 149 (Barada Barna case) Dowsett J made observations in respect of the case management of native title cases. His Honour observed, at [52] that:

In all such cases, the aim is to ensure that the case progresses towards trial whilst, at the same time, encouraging discussion and co-operation amongst the parties so as to maximize the exploitation of opportunities for settlement and/or narrowing of the issues.

6    The other judges, who constituted the Full Court in that case, Mansfield and Jagot JJ did not expressly refer to that observation. Their Honours did, though, address the subject of an abuse of process. Before expressly turning to the subject of abuse of process, Mansfield and Jagot JJ, at [10] stated with reference to the material available and likely to be adduced, as known at a case management stage:

If it appears from that material that there is a real basis for the claim then the mere fact that the claim is in dispute, or that contrary material is available, of that the existing material is preliminary or incomplete is not a proper basis for the exercise of the power of summary dismissal on the ground of lack of reasonable prospects of success.

7    On the subject of abuse of process and against the background just mentioned, their Honours then observed, at [42]:

One of the procedural premises in the Act is that it is desirable for applications to be resolved by negotiation if possible.

8    More generally, in relation to the subject of abuse of process, Gleeson CJ and Gummow, Hayne and Crennan JJ observed in their joint judgment in Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 at [9] (Batistatos):

What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues.

9    In Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 French J, when a judge of this Court, anticipated that observation in Batistatos in noting that the possible varieties of abuse of process were limited only by human ingenuity with the categories not being closed. Having so done, his Honour stated, at p 279:

An unmeritorious claim brought merely in order to put pressure on a respondent for commercial or other reasons would no doubt be treated as an abuse. Such a claim might also be attacked as frivolous or vexatious or as disclosing no reasonable cause of action. Those designations are not mutually exclusive. An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel.

His Honour further referred to policy considerations in dealing with abuse of process claims, namely a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes and the necessity to maintain confidence in and respect for the authority of the Courts.

10    The Commonwealth is a respondent party to this proceeding. Notwithstanding that it falls to the Attorney-General to administer the Act, and that the case, as I have observed, entails an indication of Commonwealth judicial power, the Commonwealth, somewhat disappointingly, was unable to make any particular submission as to whether or not, in the face of the statement made on 15 May, the proceeding was or was not an abuse of a court exercising the judicial power of the Commonwealth.

11    Even so, it seems to me that, having regard to the authorities which I have mentioned, were the only issue in this case whether or not the Yirendali People held native title in respect of the area the subject of the application, its continuance, no matter how lofty the aspirations might be for consensual resolution, would be an abuse of process. That is because by admission in open Court the applicants have acknowledged an inability to prove a key element, having regard to s 223 of the Act, of a necessary proof in relation to a determination of native title.

12    It would, in my view, have been quite inappropriate to countenance a continuation of a case, fatally flawed by admission on behalf of the party on whom the onus lay, for a collateral purpose. There is a particular lesson in this case in relation to proceedings where the only issue is the existence, or otherwise, of native title in that particular applicant. That is that if there are to be negotiations directed towards a consensual outcome, those negotiations must occur in a timely way, bearing in mind that the ultimate end, as Dowsett J observed in the Barada Barna case, is, if negotiations do not come to fruition, an exercise of judicial power in respect of the issue in the case.

13    Here, though, the issues are, as I have stated having regard to the defence of the pastoralists, wider than just the question of whether the Yirendali People have native title in respect of the area claimed. Each of the respondents has made a particular forensic judgment, having regard to that respondent’s particular interests, that there is advantage in seeking to secure, by negotiation, a consensual outcome in respect of the issue pleaded by way of defence which, as I have said, is wider than just that of whether the Yirendali People have native title.

14    In my view, in light of that position taken by the respondents, it would be inappropriate to require the matter to proceed to trial on the defence at this stage. Further, part of that inappropriateness is informed by the objects of the Act and the recollection that, in many cases, an absence of connection can be referrable to events of history which would not be repeated today, when different views are abroad in relation to relations between the original inhabitants of this land and those who have come afterwards.

15    I am particularly conscious that the pastoralists, as a group of respondents, have signified, through their legal representative, that notwithstanding their own particular desires to use the land in question, they, too, see forensic advantage in the course prompted on behalf of the State.

16    For these reasons then the case is one which, even though it has a very particular history and age, ought to be kept on foot but not immediately pressed to trial. The case management of the case to date, with the provision of a realistic trial date in respect of an earlier identified separate question, has yielded the particular beneficial outcome of the concession mentioned on behalf of the applicant. There does come a time, as I have earlier observed, when an applicant has to be put to proof if respondents are disposed to put an applicant to proof. That concession having been made, but there being a wider issue as pleaded in the defence, it is desirable that an endeavour be made to resolve that consensually. The parties are prompting steps directed towards mediation in that regard.

17    A particular mediator has been canvassed in the course of submissions today, the Honourable Stanley Jones AO. That gentleman would be, in my respectful view, ideally suited to act as mediator in this case, if he is available. The parties recognise that though, in their view also, he would be ideal there is a question of availability within the timeframe posited in the draft order. For these reasons allowance will need to be made for the possibility that he may not be available within the timeframes posited.

18    The Court maintains a panel of mediators whose abilities are considered suitable. Such is the history of this case that it is desirable that the mediator be the subject of court appointment, rather than merely consensual appointment. It is, though, important that the parties are consulted in relation to the appointment by the Court of any mediator.

19    There is also a question as to whether to maintain the existing separate question or whether to refine it. One virtual of the course of interlocutory proceedings to date has been reflection by the parties as to the aptness of the earlier formulated separate question. The separate question presently promoted is in these terms:

But for any question of extinguishment of native title, does the native title claim group described in schedule A, the Yirendali People, hold native title to any and what land and waters of the claim area?

20    A difficulty I have with the revised separate question is that the answer to that, in part, is provided by the admission made. In other words, if there is no connection by admission, there could be no native title. There is, though, an enduring advantage in a separate question in relation to the existence of native title apart from extinguishment. The enduring advantage is that such a separate question obviates a need to investigate extinguishment by grant or otherwise. That can be a very elaborate and, therefore, expensive exercise, indeed.

21    For these reasons and having regard to the pleaded defence, it is preferable, in my view, to adhere to the separate question formulated in the order made on 13 June 2014 because that separate question focuses on an issue wider than that of the claim made by the Yirendali People. It ought not to effect the negotiations which are proposed to adhere to that wider question.

22    In short, then, were this just a matter of a claim by the Yirendali People, I would regard it as an abuse of process to keep it on foot. It would be an abuse to keep the applicant in this case therefore registered just for the purpose of pursuing negotiations that may or may not lead to an Indigenous Land Use Agreement. That, though, is not this case. There are wider issues afoot.

23    That the orders promoted in draft contemplate that mediation initially occur as between the applicant and the State. I can see advantage in that in the sense that it will not visit costs on other respondents. It needs though to be understood that the issues which remain in the case, having regard to the defence, are wider than issues just as between the State and the applicant and extend to local government, mining and pastoral interests. These will need to be accommodated in discussions which occur between the applicant and the State. Further, in making the orders today, I have, in reserving liberty to apply, deliberately reserved the prospect of the mediation being expanded so as to extend also to other respondents.

Associate:    

Dated:    30 July 2015