FEDERAL COURT OF AUSTRALIA

Wyman on behalf of the Bidjara People v State of Queensland [2016] FCA 777

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be summarily dismissed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be summarily dismissed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    These reasons for judgment explain why I have concluded that:

(1)    these proceedings involve an attempt to re-litigate an issue of fact which was decided in earlier litigation;

(2)    as a result, the continuation of these proceedings involves an abuse of process, and the proceedings should not be permitted to continue;

(3)    it is unnecessary to decide whether the operation of the doctrine of estoppel precludes the applicants from continuing these proceedings but, if required to decide this issue, I would conclude that the doctrine is engaged in the circumstances;

(4)    given the conclusions in (1) and (2) above, the proceedings should be summarily dismissed; and

(5)    it is unnecessary and inappropriate to determine whether the proceedings should also be summarily dismissed on the ground that they otherwise have no reasonable prospect of success.

2    The proceedings are QUD 216 of 2008 known as “Bidjara 6” and QUD 644 of 2012 known as “Bidjara 7”.

3    In Bidjara 6, by an application filed on 23 July 2008, certain applicants apply for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) (the NT Act) in respect of land in south-east Queensland. The claim is said in the application to be made on behalf of the Bidjara People who are identified as the biological descendants of certain ancestors.

4    In Bidjara 7, by an application filed on 15 November 2012, certain applicants apply for a determination of native title under s 61(1) of the NT Act in respect of land in south-east Queensland adjacent to the land the subject of the Bidjara 6 claim. The claim is said in the application to be made on behalf of the Bidjara People who are identified as the biological descendants of certain ancestors.

5    Most, but not all, of the applicants in Bidjara 6 are the same as the applicants in Bidjara 7.

6    All of the ancestors from whom the claim group in Bidjara 6 are said to be descended are also the ancestors in Bidjara 7. Bidjara 7 identifies certain additional ancestors, although it is not possible from the claim alone to know whether the additional ancestors are themselves descendants of ancestors identified in Bidjara 6.

7    In accordance with orders of the Court of 15 May 2015 the applicants in Bidjara 7 filed amended points of claim. This document refers to Bidjara 7 having been brought on behalf of the Bidjara People (also referred to as Bidjara society). In paragraph 39 of the amended points of claim the Bidjara People are said to be “a nation or group comprising greater than 7,000 people” who “are descended for the major part from 48 apical ancestors”. There are 40 ancestors named in the Bidjara 7 claim form as people whose descendants are the claim group. Importantly, paragraph 39 also contends that “the overlap area and Bidjara 6 Area and Bidjara 7 Area is Bidjara country by virtue of the following” (subsequent sub-paragraphs identify various asserted facts). The “overlap area” is a reference to an area of land within the Bidjara 6 claim which was the subject of a separate determination. The Bidjara 6 Area is a reference to the area of land the subject of Bidjara 6, presumably excluding the overlap area. The Bidjara 7 Area is a reference to the area of land the subject of Bidjara 7.

8    The claims are to be understood in the context set by the NT Act. By s 61(1), a native title determination application may be made by a “person or persons 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”. This provision is consistent with s 253 which provides that a “native title claim group” means “in relation to a claim in an application for a determination of native title made to the Federal Court - the native title claim group mentioned in relation to the application in the table in subsection 61(1)”.

9    Bidjara 6 and 7 are native title determination applications. By s 62(2)(e) of the NT Act, a native title determination application must be accompanied by:

a general description of the factual basis on which it is asserted that the native title rights and interests claimed exist and in particular that:

(i) the native title claim group have, and the predecessors of those persons had, an association with the area; and

(ii) there exist traditional laws and customs that give rise to the claimed native title; and

(iii) the native title claim group have continued to hold the native title in accordance with those traditional laws and customs;

10    This provision is itself consistent with s 223 which provides that:

(1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:

(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and

(c) the rights and interests are recognised by the common law of Australia.

11    Section 225 is also relevant. It provides that:

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

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

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

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

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

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

12    On 6 December 2013, I made an order in these terms in the Bidjara 6 proceeding:

The application, to the extent it relates to the “overlap area” as identified in the reasons for judgment published today, be dismissed.

13    On 21 February 2014, I made a further order (order 1) as follows in the Bidjara 6 proceeding:

Pursuant to section 225 of the Native Title Act 1993 (Cth), native title does not exist in relation to any part of the land or waters the subject of this proceeding, as described in the attached schedule.

14    The attached schedule describes the land within the overlap area.

15    These orders were made consequential on reasons for judgment, Wyman on behalf of the Bidjara People v State of Queensland (No 2) [2013] FCA 1229 (Wyman No 2), Wyman on behalf of the Bidjara People v State of Queensland (No 3) [2014] FCA 8 (Wyman No 3), and Wyman on behalf of the Bidjara People v State of Queensland (No 4) [2014] FCA 93 (Wyman No 4).

16    Wyman No 2 contains my principal reasons for deciding that the applicants had not proved the existence of native title in respect of the overlap area.

17    Wyman No 3 contains my reasons for making a determination that native title does not exist in relation to the overlap area, rather than merely dismissing the native title determination application, Bidjara 6, to the extent it related to the overlap area.

18    Wyman No 4 contains my reasons for the form of the order made.

19    Wyman No 2 was subject to appeal. The appeal was dismissed. The Full Court’s reasons are in Wyman v Queensland [2015] FCAFC 108; (2015) 235 FCR 464) (Wyman FCAFC).

20    In Wyman No 2, I said at [534]:

The fact that the question is not merely whether a society has continued, but whether there has been continued acknowledgement and observance of pre-sovereignty laws and customs of that continued society (as I have noted recognising that change, adaptation and interruption may not be fatal in that “[s]o long as the changed or adapted laws and customs continue to sustain the same rights and interests that existed at sovereignty, they will remain traditional” (Bodney [Bodney v Bennell [2008] FCAFC 63; (2008) 167 FCR 84] at [74])) is significant in the present case. One reason for this is that there cannot be any real doubt on the evidence that, outside the construct created by the NTA, a Bidjara society has continued. Despite the depredations of disease, violence, forced relocation, separation of families and suppression of culture wrought by colonisation the evidence indicates that a body of people continued to regard their primary identity as Bidjara since sovereignty and continue to do so today. If continuation of a society in this ordinary sense and pre-sovereignty connection to land and no more were the test for the existence of native title then the Bidjara would satisfy that test in respect of Carnarvon Gorge and Carnarvon National Park. But that is not the test for the existence of native title under the NTA. The Bidjara (and the BRP) must prove the continuation of the traditional laws and customs of their pre-sovereignty societies as the foundation for their connection with the overlap area”.

21    At [625], I identified the issues in these terms:

The issues for the Bidjara are whether their contemporary Bidjara society is united in its acknowledgment and observance of the traditional, that is pre-sovereignty, laws and customs of the Bidjara people and whether those laws and customs found their continued connection to that part of the overlap area which I have found was Bidjara country.

22    I answered those issues as follows:

[669] The State accurately identified that the basic problem for the Bidjara’s case is evidentiary. The Bidjara had to prove their case by evidence. As the State said:

(1) “The Bidjara case also suffers from the lack of evidence that the normative system was passed down to the current generation of claimants from generation to generation, even from the set of named apical ancestors of the claim group. There is evidence from a small number of witnesses, from a group said to number 10,000, representing descendants from less than half of the set of apical ancestors. In those circumstances, it cannot be inferred that the remaining descendants adhere to a normative system governing rights and interests in the overlap area”.

(2) “The Bidjara case focussed almost exclusively upon the question of identifying traditional Bidjara country rather than on identifying those aspects of the normative system that the group were united in acknowledging and observing. However, it is the latter that informs the former. Thus, there has been a radical departure by the current generation from an understanding of or adherence to the boundaries carved out by the Mundagatta, and acknowledged and observed by Rusty Fraser”.

(3) “Other characteristics of the Bidjara case are consistent with a substantial erosion of the fundamentals of the normative system including that the communal title under which the land was originally held was characterised by land holding units among whom rights were differentially distributed. The state of the evidence does not support a finding that Bidjara people are united in their acknowledgement and observance of any of the other features of the normative system identified by Dr Hutchings. No connection to the overlap area, by the relevant traditional laws and customs, has therefore been demonstrated”.

[670] Moreover, to the extent that there was evidence about traditional laws and customs, the weight of the evidence indicates that the most important elements have either disappeared or been transformed into a much simpler and less detailed set of norms including, for example, the details of the land tenure system (now, all Bidjara have equal rights in Bidjara country which cannot have been the traditional law), the details of the marriage system (now, all Bidjara can marry as they see fit subject only to the taboo against incest which was not the traditional law), the creation myths (as for the Karingbal, only the Mundagarra story remains but in a form more threadbare amongst contemporary witnesses than even as recently as Uncle Rusty Fraser’s generation) and initiation ceremonies (all had disappeared long before the hearing to preserve evidence in 2001 according to Uncle Rusty Fraser). Otherwise, what remains appears to have largely involved revival (for example, the Bidjara language for most Bidjara has not been traditionally acquired, Keelen Mailman being the sole contemporary exception and Bidjara songs and dances which Uncle Rusty revived apparently almost single-handedly) or remnants (for example, the use of certain plants for medicinal purposes and some hunting and food practices).

[671] This state of affairs is unsurprising given that, as Brendan Wyman said, Uncle Rusty Fraser was “the last – more or less, the last remaining man that knew that stuff” (that is, tribal knowledge). Uncle Rusty Fraser himself said that “I'm the only fella knows about it [traditional Bidjara rules]. See, none of these young fellas don't understand anything, don't know how to sing songs, don't know how to get tucker and all them sort of thing. You got to teach them all, you know, how to get them and everything”. While Uncle Rusty taught younger Bidjara including Floyd Robinson some things, Uncle Rusty’s evidence that he was the last and only remaining Bidjara at the time of the preserved hearing who had any detailed knowledge of traditional Bidjara laws and customs rings true. Moreover, it is apparent that even by the time of Uncle Rusty’s evidence most of those traditional laws and customs had disappeared.

23    I concluded in these terms at [672]:

[672] For the reasons given above I am not satisfied that the requirements of s 223 of the NTA have been met by the Bidjara. I accept that Carnarvon Gorge and Carnarvon National Park was Bidjara country at sovereignty with the Bidjara people having rights and interests in that land arising from their recognition, acknowledgment and observance of traditional laws and customs in connection with that land. However, I am not satisfied that the people who now identify as Bidjara possess rights and interests under traditional law and customs which give them a connection with the land and waters of the overlap area because I am not satisfied that any body of traditional law and customs, as opposed to attenuated or transformed fragments of law and customs, have continued. While there continues to be a body of people who have maintained their identity as Bidjara, the connection of the Bidjara to the land and waters of the claim area including Carnarvon Gorge and Carnarvon National Park is not a connection which has as its source traditional law and custom. As noted earlier, these conclusions concern the requirements of the NTA. They say nothing about the fact of Bidjara identity or the existence of contemporary Bidjara society. Equally, these conclusions say nothing about the value of Bidjara efforts to continue, revive and protect aspects of Bidjara culture.

[673] It follows that the separate questions relating to the Bidjara claimants must be answered in the negative and their native title claims insofar as they relate to the overlap area must be dismissed.

24    These findings were challenged but not disturbed on appeal. In Wyman FCAFC, the Full Court said:

[288] The difficulty produced by a case such as the present, in light of the findings made by the primary judge, is that while certain narratives, song patterns, knowledge and practices that may reasonably be said to be derived from sovereignty times may have been possessed by some older members of a broadly defined contemporary society of Aboriginal people descended from a pre-sovereignty society, this alone is not sufficient, when all the evidence is accounted for, to demonstrate that the contemporary Bidjara society is one that is, in effect, defined by laws and customs rooted in pre-sovereignty laws and customs that its members acknowledge and observe, as against have some general knowledge of.

[289] While the loss or diminution of some external manifestations of a sovereignty society – including language, ceremony, Men’s and/or Women’s Law, Dreaming narratives, taboos and the like – as discussed above, will not necessarily result in a finding that there no longer exists a society defined by a traditional normative system, the loss of such features will always raise serious questions as to whether or not the contemporary society is defined by old rules, or by new rules not rooted in the pre-sovereignty rules.

[290] The evidence that proves the continuation of a traditional normative system must be adduced. Here, her Honour found this had not been done. Indeed, her Honour considered that so much focus had been placed on the traditional boundary issues, about which the three different claimant groups were in conflict at trial, that insufficient focus had been placed by the Bidjara claimants on the continuity issue. In this case the difficulties in showing the continued operation of a traditional normative system are not merely that a certain number of the indicia of the classical sovereignty society have been lost or abandoned, but, more significantly, that the contemporary Bidjara society cannot be defined by reference to a group of people who today adhere to a body of traditional laws and customs. These proof difficulties are not overcome by noting that Professor Sutton accepted that the Bidjara continue to share such concepts as communal interests in country and the inalienability of country. These concepts are no doubt important. Without them, it would perhaps be impossible to prove a continuing traditional normative system. But of themselves they do not remove the need for claimants to prove a system of traditional laws and customs they adhere to and under which it is said rights and interests are possessed.

…

[292] A significant difficulty in the present case, to which Professor Sutton adverted and the primary judge accepted, was that on the face of it all members of contemporary Bidjara society enjoy the identical native title right to protect sites, not just a few knowledgeable Bidjara people. The claim was put at that broad level. It was not a claim made, as suggested hypothetically elsewhere in Professor Sutton’s initial report, by “one family, or even just one person, being left standing as the legitimate holders of traditional country”. Rather, the society which claims it was possessed of such a right was the broader group, apparently comprising as many as 10,000 persons.

[293] That this is so is emphasised by the lay evidence led and summarised above. A range of persons who know of their Bidjara identity have come together, made the claim and insist that all persons descended from Bidjara apical ancestors have the same right to claim rights and interests in all Bidjara country. In the circumstances of this claim, this suggests a discontinuity that reflects the loss of the normative system rooted in sovereignty, and the creation of a new normative society that post-dates sovereignty that includes this claimed heritage right or obligation.

[294] In our opinion, the primary judge appreciated that the key question on the Bidjara claim in respect of the overlap area was whether relevant laws and customs contended for could still be seen as the traditional laws and the traditional customs of the Bidjara. The judge reasonably and properly, having regard to the evidence, noted what laws and customs could be inferred to be Bidjara laws and customs at sovereignty and made findings as to which of those laws and customs may be said to be a feature of contemporary Bidjara society.

[295] The fact that the judge dealt with some customs, for example, marriage rules, kinship and taboos, and language, which may be said not to be related or closely related to the possession of rights and interests in relation to land and waters, is, in our view, not material to her substantive reasoning. Her Honour, as explained above, was effectively obliged to deal with the evidence that the parties, including the Bidjara, had led at trial about the laws and customs of the sovereignty society and the asserted continuing laws and customs of the contemporary Bidjara society. Properly considered, her Honour closely regarded the evidence of the asserted contemporary laws and customs under which claimed native title rights were said to be possessed.

[296] The judge reasonably and properly observed, having regard to the requirements of Yorta Yorta [Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58; (2002) 214 CLR 422], that laws and customs will not be considered traditional unless it can be shown that there is a normative system currently that can be rooted back to sovereignty. Her difficulty was that the continuing relationships that some Bidjara people have with the overlap area and the knowledge about Bidjara country and culture that some people possess today did not appear to be explained by an enduring traditional normative system.

[297] A key factor in this assessment was not only that contemporary Bidjara society no longer exhibited, even in an adaptive form, many of the laws and customs that the sovereignty society acknowledged and observed, but that in relation to the overlap area, the pre-sovereignty “tenure system” had been lost some time ago, and the current one was new.

[298] In these circumstances, the primary judge’s finding that the Dreaming narratives about which some Bidjara witnesses gave evidence were but fragments and attenuated accounts of what would once have been rich narratives, cannot be faulted. The judge plainly considered the limited knowledge some people had about such matters did not support the existence of a traditional normative system today. Findings about such factual matters require careful assessment and judgement. The primary judge had an advantage that this appeal court does not share in making that judgement. Sometimes, no doubt, the fact that a group has but limited knowledge of Dreamings, and the like, that must once have been extensive, will not lead to a finding that there is no longer a normative system. Other evidence, when taken with such evidence, may still prove the existence today of a traditional normative system. The difficulty in this case is that the other evidence to support such a finding is lacking.

[299] There can be little doubt that the removal of Bidjara people from their traditional land and their splitting up through various kinds of social organisations had the most profound effects on Bidjara society. That does not mean, however, as the plurality in Yorta Yorta and the Full Court in Bodney said, that proving a continuing normative system that gives rise to rights and interests ceases to be a requirement of proof of native title.

[300] No doubt, in many circumstances, such disruptions to the exercise of traditional rights will and have resulted in laws and customs being lost, falling into disuse or being abandoned. The question always is whether claimants nonetheless can show that they have continued to maintain by traditional laws and customs, without substantial interruption, connection with their traditional country. In this case, the history of disruption does not prove the lack of such continuity, but accentuates the difficulties the Bidjara faced in proving such continuity of connection.

[301] In the result, the evidence led by the Bidjara fails to disclose, as the primary judge found, the existence of a contemporary normative system rooted in the pre-sovereignty system by which traditional rights and interests in relation to land and waters, in the overlap area, are possessed. It cannot be said that her Honour erred in the approach she took to the “continuity” question.

[302] The appeal of the Bidjara on this question therefore fails.

25    On behalf of the applicants it was put that the doctrines of estoppel and abuse of process by reason of re-litigation of an issue decided in an earlier proceeding could not arise in the circumstances of the present case because the only relevant issue I determined in Wyman No 2 was whether the applicants had proved the existence of the claimed native title in relation to the overlap area; the balance of the Bidjara 6 claim and the Bidjara 7 claim relate to different land.

26    I am unable to accept this characterisation of the findings in Wyman No 2. The reasons in Wyman No 2 disclose, first, that I was not satisfied that contemporary Bidjara society was united in its acknowledgment and observance of the traditional, that is pre-sovereignty, laws and customs of the Bidjara people and, second, that I was satisfied that the traditional, that is pre-sovereignty, laws and customs of the Bidjara people had not continued as required under the NT Act.

27    The consequence of these findings was that, even though I was satisfied that it had been proved that Carnarvon Gorge and Carnarvon National Park, at sovereignty, was Bidjara country (that is, was an area in respect of which, at sovereignty and for some period thereafter, persons from whom the claimant group in Bidjara 6 are descended, known as the Bidjara, possessed rights and interests under traditional laws and traditional customs acknowledged and observed by them), native title rights and interests in that area had not continued because the traditional laws and customs of the Bidjara had not themselves continued.

28    Given my conclusion that Carnarvon Gorge and Carnarvon National Park, at sovereignty, was Bidjara country, my further conclusion that the traditional laws and customs of the Bidjara had not continued was an essential finding upon which the ultimate conclusion – that the Bidjara 6 claim to the extent it related to the overlap area had to be dismissed – depended.

29    In terms of the definition of native title rights and interests in s 223 of the NT Act, the Bidjara 6 claim in respect of the overlap area failed under s 223(1)(a) - the rights and interests claimed were not possessed under the traditional laws acknowledged, and the traditional customs observed, by the pre-sovereignty Bidjara people and thus, necessarily, also failed under s 223(1)(b) – the Bidjara people “by those laws and customs, have a connection with the land or waters” of the overlap area. The case, accordingly, is analogous to Quall v Northern Territory [2009] FCAFC 157; (2009) 180 FCR 528 and, in particular, the observations at [42] as follows:

While the land that is the subject of the present application (Part B) is different from the land the subject of the application in Risk (Part A) [Risk v Northern Territory of Australia [2006] FCA 404], the essence of the claim in both cases is that there has been uninterrupted observance of traditional laws and customs by the native title applicants from sovereignty to the present day. Those laws and customs relate to all land in which the applicants claim to have native title and it is from that uninterrupted observance that their native title is said to stem. This continuity of observance is an essential element of any claim of native title; when the laws and customs that existed at sovereignty cease to exist the interests arising from the laws and customs also cease to exist: Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 at 446.

30    This may be contrasted with a case in which, for example, a finding is made that the claimant group had proved that the asserted rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by a pre-sovereignty people but had not proved that, by those laws and customs, they had a connection with the land or waters” of the area claimed. In any such case, the essential finding would be lack of connection, not lack of a continuing society united in observance and acknowledgment of traditional laws and customs. The present case is different – the Bidjara 6 claim in respect of the overlap area failed because of a finding that there was no continuing traditional Bidjara society.

31    On this basis, I am satisfied that the continuation of the Bidjara 6 and Bidjara 7 claims represents an abuse of process which should not be permitted to continue. Although the Bidjara 6 and Bidjara 7 claims relate to different land (that is, land outside of the overlap area) as paragraph 39 of the amended points of claim confirms, they are each claims on behalf of the same claimant group. It will be recalled that by paragraph 39 the applicants assert that “the overlap area and Bidjara 6 Area and Bidjara 7 Area is Bidjara country”, meaning country in which the asserted greater than 7000 Bidjara people constituting the claim group hold the asserted native title rights and interests. An essential element of the maintenance of each of the claims is the proposition that the claimant group – which is the same claimant group as in Wyman No 2 – is united in observance and acknowledgment of the traditional laws and the traditional customs of pre-sovereignty Bidjara society. That issue has, however, already been determined against the claimant group.

32    I do not accept that the fact that the Bidjara 7 claim identifies additional ancestors compared to the Bidjara 6 claim is material. Assuming that those additional ancestors are not themselves descendants from ancestors in the Bidjara 6 claim, it is nevertheless apparent from paragraph 39 of the amended points of claim in the Bidjara 7 proceedings that the claimant group for the overlap area, the balance of the Bidjara 6 land, and the Bidjara 7 land is the same.

33    Nor do I accept that there is any misconception in referring to the claimant group as the “Bidjara people” or “Bidjara society”. Apart from the fact that the Bidjara people identify themselves in this way, the claims are brought on behalf of one group, said to be descended from certain ancestors; for the relevant purpose of the NT Act, the group is – and is said by the applicants to be – a single entity.

34    Accordingly, I consider that the principles identified in Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 89 ALJR 750 (Tomlinson) are engaged. In that case, the High Court said:

[25] Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.

[26] Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.

35    The claim which is necessarily contained in the Bidjara 6 and Bidjara 7 applications – that the claimant group is united in observance and acknowledgment of the traditional laws and the traditional customs of pre-sovereignty Bidjara society – has been made and determined in Wyman No 2. The principles of abuse of process are engaged.

36    In D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [74] the High Court said:

Questions of abuse of process can be relevant to the present issue only if it is accepted that there are, or may be, circumstances in which the result reached in earlier litigation should not be impugned. The circumstances in which proceedings might be classified as an abuse of process have been described in various ways. In Hunter v Chief Constable of the West Midlands Police [[1982] AC 529], to which extensive reference was made in the speeches in Arthur J S Hall v Simons [[2002] 1 AC 615], Lord Diplock spoke of abuse of process as a misuse of a court’s procedure which would “be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people”. In Rogers v R [[1994] HCA 42; (1992) 181 CLR 251], Mason CJ observed of Lord Diplock’s speech that, with what had been said in this Court, it indicated:

that there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute. (citations omitted).

37    Beazley P summarised the relevant principles in O’Shane v Harbour Radio Pty Ltd [2013] NSWCA 315; (2013) 85 NSWLR 698 at [99]–[111] including the following:

[103] In Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; 226 CLR 256, the plurality (Gleeson CJ, Gummow, Hayne and Crennan JJ) at [15] accepted as correct the statement of McHugh J in Rogers v R [1994] HCA 42 ; 181 CLR 251, at 286, that:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.

[104] Their Honours, at [15], also quoted with approval McHugh J’s further comment in Rogers, at 286, that whilst in most cases an abuse of process involved the commencement of proceedings, there could be an abuse of process in relation to any procedural step taken in the course of proceedings that had been properly commenced. See also PNJ v R [2009] HCA 6; 83 ALJR 384, at [3].

[105] The relevance, for present purposes, of an abuse of process not being dependent upon the existence of an estoppel, is that a court may intervene to prevent an abuse, notwithstanding that the subsequent proceedings are not between the same parties or their privies. As the authorities state, the court will act upon an abuse of process where the use of the court’s procedures would bring the administration of justice into disrepute.

38    Another useful summary is to be found in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59] – [70], cited with approval in Dale v Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 (Dale) at [112].

39    Bidjara 6 and Bidjara 7 were properly commenced; at the time they were commenced there could be no abuse of process of the kind now involved, as Wyman No 2 had not been determined. It is the continuation of those proceedings, in the face of the finding in Wyman No 2 (not disturbed in Wyman FCAFC), which gives rise to the potential abuse of process.

40    In State Bank of New South Wales Ltd v Stenhouse Ltd [1997] 81-423 Aust Torts Rep 64,077 (Stenhouse) at 64,089 Giles CJ said:

…whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate an issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are - (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of - (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

41    In the present case, and as submitted by the State of Queensland:

(a)    The continuation of a Bidjara normative system of traditional law and custom since sovereignty was both an ultimate and an evidentiary issue in Wyman No 2. On the evidence, which was extensive and is fully described in Wyman No 2, I found that such a system had not continued. This finding was fundamental to Wyman No 2, and is fundamental to the balance of the Bidjara 6 and Bidjara 7 claims.

(b)    A full opportunity to litigate this issue was taken in Wyman No 2. The applicants adduced extensive evidence over a hearing of some 17 days. Having failed in Wyman No 2, the applicants appealed to the Full Court, including an appeal against my conclusion that traditional Bidjara society had not continued. The appeal was dismissed. The applicants had the benefit of legal representation until four days before the Wyman No 2 hearing and were legally represented for the appeal.

(c)    The finding on the issue was clear and final.

(d)    The issue in Wyman No 2 – the continuation of a Bidjara normative system of traditional law and custom since sovereignty – is identical to the issue in Bidjara 6 and 7.

(e)    The applicants have filed further evidence in Bidjara 6 and 7 (as directed), but it is fair to say that the evidence is mainly from the same witnesses who gave evidence in Wyman No 2, and there is no explanation why the evidence was not adduced in Wyman No 2.

(f)    Native title litigation is notoriously resource intensive (see Dale at [114]). These proceedings bear out that observation given the 17 day hearing in respect of the overlap area where the Bidjara 6 claim overlapped with two other groups’ claims. The Bidjara 6 and 7 claims overlap multiple other native title claims. Because the identical issue of the continuation of a traditional society is raised in the Bidjara 6 and 7 claims, those claims can only succeed if a different, inconsistent, finding on the fundamental issue of the continuation of traditional Bidjara society is reached than that in Wyman No 2. Of itself, given the resources consumed in respect of Wyman No 2, this would tend to bring the administration of justice into disrepute. At the same time, it would involve the State of Queensland in what will be, in essence, re-litigation of the same issue previously determined by the Court.

(g)    In circumstances where the applicant in Bidjara 6 had, and took, a full opportunity to prosecute the claim for native title and, in so doing, called extensive evidence which must have been intended to support the claim of the continuation of a Bidjara normative system of traditional law and custom since sovereignty, there is little to balance in the applicants’ favour against the factors which point to an abuse of process.

42    For the applicants, weight was placed on a statement I made in Wyman No 3 as follows:

[3] Given the content of the submission on behalf of the Bidjara claimants, it is necessary to say that the fact that the Bidjara claimants were not legally represented and that the balance of the claim may lead to different conclusions about other land does not weigh against the State’s submission. This is because the balance of the claim is irrelevant. The determination the State seeks relates to the overlap area only. Nor do I give any weight to the submission for the Bidjara claimants about estoppel. Their claim, at least to the extent it relates to the overlap area, has been finally determined, subject only to appellate review. I also do not consider that material weight should be given to the submission for the Brown River claimants that a negative determination should not be made because of the potential impact on the self-perception and identification of the claimant group. As my principal reasons make clear, the conclusions reached and the dismissal of the claimant applications engage solely with the statutory construct created by the NTA and do not purport to say anything about the self-perception and identification of any claimant group.

43    It was submitted that it could not be an abuse of process for the applicants to continue the claims relying on my statement that “the balance of the claim may lead to different conclusions about other land”.

44    I do not consider this statement to be material.

45    First, the issue which I was deciding in Wyman No 3 was whether a negative determination under s 225 of the NT Act (that is, a determination that native title did not exist) should be made. In that context, it was submitted for the applicants that the applicants were not represented at the hearing which led to Wyman No 2 and a “negative determination presents the State of Queensland with a forensic advantage in raising issue estoppel against Bidjara in further proceedings”. The issue was not whether an issue estoppel or contention of abuse of process could be raised.

46    Second, the balance of the claim area in Bidjara 6 was irrelevant because the negative determination related only to the overlap area.

47    Third, the making of a negative determination, in addition to the order already made on 6 December 2013 dismissing the application to the extent it related to the overlap area, could not (and does not) affect the question whether an issue estoppel or contention of abuse of process now may be raised or should succeed. That question is to be answered by reference to the findings in Wyman No 2 and Wyman FCAFC which led to dismissal of the Bidjara 6 claim to the extent it related to the overlap area; comments made regarding the negative determination do not alter the position as to abuse of process or estoppel one way or another.

48    Fourth, the applicants have not done anything relying on my statement; the claims had already been filed before Wyman No 3 was published. The applicants filed further evidence for the purpose of meeting the present applications for summary dismissal by reason of estoppel, abuse of process and/or lack of reasonable prospects of success. No relevant prejudice can arise as a result.

49    Fifth, the fact that, if the proceedings were permitted to continue, the outcome in Bidjara 6 and Bidjara 7 might be different, is part of the foundation for concluding that the continuation of the claims would involve an abuse of process.

50    For these reasons, I consider that the continuation of Bidjara 6 and 7 involves an abuse of process and, in the circumstances, that abuse would be manifestly unfair to the State of Queensland (which has already litigated the issue and succeeded) and would tend to bring the administration of justice into disrepute in a manner that should not be permitted. Weighing these matters against the interests of the claim group, all that can be said is that the claim group no doubt do wish to have another opportunity to argue that they are a society united in their acknowledgment and observance of traditional laws and customs, but it cannot be denied that the claim group has had and took the full opportunity to argue this claim; a claim which was considered and rejected on the merits following consideration of extensive evidence, a lengthy hearing, and an appeal. The abuse of process, accordingly, should not be permitted to continue.

51    What then of issue estoppel? It is unnecessary to say more than what follows, given my conclusion that the continuation of Bidjara 6 and Bidjara 7 would involve an abuse of process.

52    Whether or not my finding – that a Bidjara normative system of traditional law and custom capable of founding native title rights and interests had not continued since sovereignty – forms part of the “res” for the purpose of determining whether the doctrine of res judicata is engaged, there is no doubt that the relevant issue was decided by a final judicial determination. This leaves for consideration the issue of common parties. The State of Queensland is undoubtedly a common party to Wyman No 2, the balance of the Bidjara 6 claim and the Bidjara 7 claim.

53    Insofar as the applicants (as opposed to the claim group) might be relevant, the applicants in Bidjara 6 are the same as the applicants in Wyman No 2 because Wyman No 2 involved the separate determination of issues in respect of an area of land forming part of the area claimed in Bidjara 6. The same cannot be said about Bidjara 7 where some of the applicants are different (albeit, noting that there are pending applications under s 66B of the NT Act, not determined because of the applications for summary dismissal, by which it is sought to replace applicants so that they are identical in Bidjara 6 and Bidjara 7).

54    However, I do not accept that the identity of the applicants is determinative (or necessarily relevant in respect of a native title claim) of whether the doctrine of issue estoppel can apply. Applicants are authorised by the native title claim group. They may be changed as required (s 66B of the NT Act). The claim remains one brought on behalf of the native title claim group. In the context of determining the effect of earlier judicial decisions, to focus on the identity of applicants in native title proceedings, rather than the native title claim group as an entity themselves, would be to introduce an artifice which should not be accepted.

55    The native title claim group is the same in Wyman No 2, Bidjara 6 and Bidjara 7 – this is not only asserted in the amended points of claim for Bidjara 7 but reflects the reality of the claims in the context of the legislation. In this sense, there is the requisite identity of parties in the earlier and subsequent proceedings (the native title claim group and the State of Queensland). Issue estoppel, in my view, is established.

56    For the reasons given by the State of Queensland I do not see that the decision in State of Western Australia v Fazeldean on behalf of the Thalanyji People (No 2) [2013] FCAFC 58; 211 FCR 150 should lead to any contrary conclusion. As the State of Queensland said:

35.    The Full Court expressed reservation with respect to summary judgment on the basis of res judicata in State of Western Australia v Fazeldean on behalf of the Thalanyji People (No 2) [2013] FCAFC 58 on the basis that such litigation is (including by the consideration of communal, spiritual foundations to claims for rights to land) different to ordinary litigation, and:

“The vindication is not only for the living in the claim group, but for their ancestors and for generations to come. How that context affects the operation of principles such as res judicata under or in the context of the Native Title Act is a large question, and is one of great importance. Such a question is not apt to be disposed of on a summary application.”

    That Court ultimately stated that res judicata should there be pleaded, if to be pressed [at [34] – [36]].

36.    This reservation is conceded to be relevant, and consistent with the overall approach to summary dismissal. However, there were a number of factors leading to that Court’s refusal to give summary judgment including that the litigation was over an area excluded by an agreement between the applicant and Western Australia reached in the context of the consent determination negotiations in Thalanyji No 1 [[2008] FCA 1487], and there was uncertainty as to the terms of that original agreement, albeit the exclusion was noted in the determination.

37.    In Fazeldean there had been no contested hearing or any determination on the merits, rather the exclusion of that area was a result of confidential negotiations between the parties which had led to the resolution of difficult litigation. The reliance by Western Australia on a procedural step was noted. These it is submitted are significant distinguishing features between that case and the present one.

57    Nor does the observation in Dale at [90] – [93] give cause for concern about the operation of the doctrine of estoppel in native title proceedings, for the reasons given in CG (Deceased) on behalf of the Badimia People v State of Western Australia (No 2) [2015] FCA 507 at [46].

58    Accordingly, and if necessary, I would have found that Bidjara 6 and Bidjara 7 could not be permitted to continue by reason of issue estoppel.

59    While the applicants were legally represented at the hearing of the applications for summary dismissal, it was apparent that counsel had been briefed late. The further evidence was extensive. I accept that counsel was not in a position to make submissions against dismissal of the proceedings on the ground of lack of reasonable prospects of success, leaving aside the abuse of process and estoppel contentions. It is for this reason also that I do not consider it appropriate to determine the summary dismissal applications on the ground of lack of any reasonable prospect of success. The State of Queensland and Queensland South Native Title Service submitted that the further evidence which had been filed was incapable of founding any different conclusion than that which had been reached in Wyman No 2. This may be correct but, given the above conclusions and the difficulty for the applicants’ counsel to which I have referred, I prefer not to traverse this issue other than for the purpose of assessing the abuse of process claim - by noting that there has been no explanation for this material not being called in Wyman No 2 and that much of the material is from people who gave evidence in Wyman No 2.

60    For these reasons I consider that orders should be made summarily dismissing Bidjara 6 and Bidjara 7 as their continuation would constitute an abuse of process which, in all the circumstances, should not be permitted.

Associate:

Dated:    5 July 2016