FEDERAL COURT OF AUSTRALIA

Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2018] FCA 772

ORDERS

THE COURT ORDERS THAT:

1.    To the extent of the relief sought in paragraph [1] of the application, the interlocutory application filed by the Torres Strait Regional Authority on 22 January 2018 is dismissed.

2.    Any party in this proceeding, and or alternatively in QUD 266 of 2008, QUD 267 of 2008, QUD 362 of 2010, QUD 6005 of 2002, QUD 114 of 2017 and QUD 115 of 2017 that wishes to make submissions on:

(a)    Costs of the interlocutory application, including how the question of the costs application by Mr Ned David, Mr Maluwap Nona and Ms Garagu Kanai should be dealt with; and/or

(b)    How the orders sought by the TSRA in para [2] of its interlocutory application should be dealt with;

is to file and serve submissions on those matters, limited to five pages, on or before 6 June 2018.

3.    The proceeding be listed for a case management hearing, together with QUD 266 of 2008, QUD 267 of 2008, QUD 362 of 2010, QUD 6005 of 2002, QUD 114 of 2017 and QUD 115 of 2017, in the week commencing 12 June 2018.

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION AND SUMMARY

1    This is a ruling on an interlocutory application made by the Torres Strait Regional Authority (TSRA) on 22 January 2018, in proceeding QUD6040/2001, being the Torres Strait Regional Seas Claim (Part B) (which I refer to below as the Part B Sea Claim).

2    The TSRA seeks two orders, cumulatively, or alternatively:

1.    That this proceeding and proceedings QUD 266 of 2008, QUD 267 of 2008, QUD 362 of 2010, QUD 6005 of 2002, QUD 114 of 2017 and QUD 115 of 2017 be transferred to another Judge of this Honourable Court for hearing and determination.

2.    Further or alternatively that Order 13 of this Honourable Court made on 19 December 2017 be discharged or set aside.

3    The basis for the application is that I should disqualify myself from any further involvement in this proceeding on the grounds of apprehended bias. Although the application is filed only in proceeding QUD6040/2001, the Part B Sea Claim, the TSRA seeks orders extending to several other native title proceedings. They are:

(1)    QUD266/2008 - Kaurareg People #1;

(2)    QUD267/2008 - Kaurareg People #2;

(3)    QUD362/2010 - Kaurareg People # 3;

(4)    QUD6005/2002 - Badu People (Warral and Ului);

(5)    QUD114/2017 - (The Northern Peninsula Sea Claim Group); and

(6)    QUD115/2017 - (The North Eastern Peninsula Sea Claim Group).

4    The TSRA is not a party to any of the other proceedings I have listed above.

5    The grounds of the application are said to be set out in the affidavit which accompanied it, which was an affidavit from Mr Edward Besley, the solicitor on the record in QUD6040/2001 for the TSRA. As I explain at [12] to [16] below, that is not in fact the case.

6    On 23 January 2018, the TSRA also filed an application for leave to appeal, out of time, against other orders made on 19 December 2017. Leave to appeal was refused: see TSRA v Akiba on Behalf of the Torres Strait Regional Sea Claim [2018] FCA 601.

7    The background to the Part B Sea Claim, and to the matters which have occurred during my relatively short time as case managing judge of this proceeding and the other six native title proceedings, are reflected in three previous sets of reasons given by me.

8    The first is Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1336, a decision dealing with a late application by the TSRA for a change of venue for the Thursday Island case management hearing that was held between 20 and 22 November 2017, which I have described in previous judgments as the “venue reasons”. I will continue to use that description.

9    The second is Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2017] FCA 1438, whereby I vacated suppression orders over transcript of part of the Thursday Island case management hearing dealing with Mr Akiba’s evidence about his changes of position in relation to his status as the sole individual constituting the applicant in this proceeding, which I will continue to describe as the “transcript reasons”.

10    The third is Akiba on behalf of the Torres Strait Regional Seas Claim v State of Queensland [2017] FCA 1560, which concerned whether the Court should order steps to be taken towards an authorisation process in the absence of progress being made since the Thursday Island case management hearing, and consideration of whether any costs orders should be made in respect of a case management hearing on 18 December 2017. I will describe this as the “s 66B steps reasons”.

11    For the reasons set out below the disqualification application is refused.

The TSRA’s application

The evidence relied upon

12    Mr Besley deposes in his affidavit that his evidence is given on the instructions of Dr Cecilia O’Brien, the Principal Legal Officer in the Native Title Office of the TSRA.

13    Mr Besley’s affidavit evidence deals with the following:

(a)    Recitations of what he is instructed by Dr O’Brien to have been her views of what Mr Besley calls the “defective authorisation” and also of the state of the anthropological work on the Part B Sea Claim, when she took over as Principal Legal Officer from Mr Peter Krebs in early 2017.

(b)    Some evidence about how the TSRA contends Gilkerson Legal came to be retained to act on behalf of the applicant in the Part B Sea Claim.

(c)    A series of references to legal advice, and to meetings between Gilkerson Legal and counsel, and other legal representatives in the Part B Sea Claim.

(d)    A considerable amount of evidence concerning the fees paid to Gilkerson Legal since 2014 for its work on the Part B Sea Claim, additionally, the fees paid to various anthropologists for their work and expenses, monies paid to fund the travel and accommodation costs of Prescribed Bodies Corporate Chairs for meetings in Cairns with Gilkerson Legal, and monies paid for a series of other meetings between claim group members, PBC Chairs and Gilkerson Legal since 2014. The amounts set out by Mr Besley total in excess of $2 million, including almost half a million on account of the experts’ work, more than $1.4 million on account of Gilkerson Legal’s work and approximately half a million dollars for PBC Chairs and claim group members’ expenses for meetings.

(e)    Descriptions of opinions of “the TSRA” about the authorisation process arising from orders made on 19 December 2017 after the Thursday Island case management hearing. It is unclear whether these are the opinions of the Board, unanimously or by majority, or Dr O’Brien’s opinions.

(f)    Evidence about the establishment of the TSRA, the most recent elections in mid-2016, and some of the achievements of the TSRA.

(g)    Evidence about requests received from people resident on particular islands within the Part B Sea Claim area about replacing the applicant in the Part B Sea Claim or making new native title claims over areas that overlap with the Part B Sea Claim area.

(h)    Evidence referring to a meeting during the third day of the Thursday Island case management hearing with Mr Akiba and TSRA staff and Board members (how many Board members and which staff are not the subject of any evidence). The evidence does not go beyond the fact of the meeting.

(i)    Evidence relating to some media coverage of the Thursday Island case management hearing and the Court’s reasons for judgment to which I have referred above, about which Mr Besley states:

I am instructed that it is the view of the Board of the TSRA that the articles have seriously damaged the confidence of the peoples of the Torres Strait in the TSRA.

(j)    Some evidence relating to the funding decisions made by the TSRA in relation to the steps needing to be taken to implement and comply with the Court’s directions concerning an authorisation process and a s 66B application.

(k)    Mr Besley’s own opinion that, based on his experience and the opinion of Mr Lloyd QC, the amount of $74,000 is “modest but adequate” to complete the authorisation process.

14    All that is said in Mr Besley’s affidavit about the subject matter of the present application is:

Apprehended Bias Application

27.    TSRA has filed or is in the process of filing an application that this proceeding and the other proceedings pertaining to the overlaps in respect of the Part B sea claim be transferred to another Judge for hearing and determination. Submissions to be filed and served in support of the application will set out the material relied upon, material which may be referred to and the grounds for the application.

Discharge or Setting Aside of Order 13 of the Orders made by the Honourable Justice Mortimer on 19 December 2017

28.    The interlocutory application referred to in the preceding paragraph also contains an application by the TSRA that further or in the alternative Order 13 of the Orders made by Mortimer, J. on 19 December 2017 be discharged or set aside. The submissions referred to in the preceding paragraph will set out the grounds for that application.

15    Much of the correspondence to which Mr Besley refers, and the documents he exhibits, are between lawyers from Gilkerson Legal and their clients within the claim group, or between Gilkerson Legal and other legal representatives. There are also invoices and financial records from anthropologists retained to undertake work on the Part B Sea Claim annexed to his affidavit. These documents are voluminous indeed, running to approximately 433 pages. Mr Besley does not depose to having sought the consent of anybody before disclosing the contents of that correspondence or exhibiting the documents themselves. There is no evidence about how he came to have these documents in his possession and control, especially since he is the legal representative of the TSRA in its capacity as a respondent in this proceeding. It would seem rather unusual that a legal representative for a respondent would have access to the invoices of a legal representative for an applicant, or for another party, or for experts retained by another party, in a proceeding.

16    At [16]-[17] of his affidavit, Mr Besley also purports to disclose some of the contents of a confidential communication from the State of Queensland to Gilkerson Legal in September 2016.

The relevance of Mr Besley’s affidavit material

17    There were objections to much of the affidavit material filed on behalf of the TSRA. The Commonwealth, the State of Queensland, the Kaurareg respondents, the Badu People (the applicants in QUD6005/02) and the three claim group member respondents all objected to the affidavit material on the grounds that it was irrelevant to the disqualification application. The Commonwealth and the State of Queensland contended specifically that the affidavit was irrelevant because a large part of the material contained within it related to facts and circumstances that were not known to the Court at the time that the conduct that is the subject of the disqualification application occurred.

18    The three claim group member respondents also objected to the affidavit on the basis that its main purpose was to criticise work done by Gilkerson Legal and anthropologists engaged in relation to the proceeding. There were also objections to the opinion nature of some of the evidence. In response, the TSRA contended that even if the arguments put forward by the State and the Commonwealth were accepted, certain paragraphs of the affidavit were relevant to its argument that it had been denied procedural fairness at various points in the case management of this native title proceeding and the evidence of Mr Besley was relevant to establishing what the TSRA would have done if it had been given the opportunities it submits it was denied. The TSRA further sought to rely on certain paragraphs of the affidavit in relation to its argument in ground 2 of its application that the Court’s orders of 19 December 2017 be set aside.

19    For reasons I gave orally during the hearing, Mr Besley’s affidavit was inadmissible. I accepted the submissions of the State and the Commonwealth that the affidavit was irrelevant in relation to the disqualification application set out in ground 1 of the TSRA’s application. I further noted that much of what was contained within the affidavit was contested as to its accuracy and completeness, and that parts of the affidavit were hearsay accounts of Dr O’Brien’s instructions. For these reasons, I found that the affidavit would be lacking in probative value. In relation to the argument made by the TSRA, I found that it was not necessary for the purpose of the TSRA’s argument that it had been denied procedural fairness to put on evidence of what it would have said had it not been for the conduct it alleged, particularly given no party had put this in issue.

20    I reserved my decision in relation to the second basis on which the TSRA sought to rely on certain paragraphs of the affidavit, in support of ground 2 of its application, until after the TSRA’s submissions on this ground had been heard. However, the TSRA later indicated that it did not press that Mr Besley’s affidavit be read in relation to ground 2 of its application.

21    This ruling resulted in senior counsel for the three claim group member respondents indicating that they did not seek to read the five affidavits filed in answer to Mr Besley’s affidavit, at least insofar as ground 1 of the TSRA’s interlocutory application was concerned.

The TSRA’s submissions

22    The TSRA relies on eight categories of events during the case management of this proceeding, starting from prior to the first case management hearing convened by me. It appears from [36] and [37] of its written submissions that the conduct referred to under these eight categories is the conduct from which the TSRA contends a “logical connection” can be identified to “the feared deviation from the course of deciding the case on its merits”. The latter quotation is from [36] of the TSRA submissions.

23    I initially understood the reference by the TSRA to “deciding the case”, meant the TSRA intended to adopt the usual approach to a disqualification application and submit that there was a reasonable apprehension I might not decide the claim for native title made in the Part B Sea Claim on its merits, being the controversy or matter with which the proceeding is concerned. However, when I raised this with senior counsel for the TSRA during oral submissions, he conceded this could not be the approach taken, as he accepted the allocation of any trial, if a trial became necessary, would occur through the Court’s National Operations Registry. He submitted in any such allocation process, the TSRA was contending the trial should not be allocated to me. He appeared to submit that the TSRA’s principal objection, having accepted this would be the situation, was to me having any further involvement at all in this proceeding, and the other six proceedings, including in a case management role.

24    When I pressed him for an example of what might occur, going forward, to which the alleged reasonable apprehension could attach, he identified a situation where the TSRA opposed the s 66B application which the Court’s current programming orders contemplate will be made to regularise the situation with the applicant in this proceeding. I return to that somewhat unusual submission below.

25    Senior counsel for the TSRA contended during oral submissions that the relevant apprehension arose as a cumulative result of the matters on which it relied, rather than each and every one of them giving rise to a reasonable apprehension of bias. In part, it was in this way that senior counsel sought to engage with the waiver submissions made by some of the other parties. He did not expressly articulate what it was about the list of matters which meant the apprehension arose at the point the TSRA decided to make the interlocutory application, but not earlier.

26    Without reciting word for word what is said by the TSRA under each category of events, the following is a summary. Later in these reasons, I return to address each of the items identified.

27    The TSRA identifies the following categories:

(a)    The Court’s “list of issues”. A “list of issues” document was circulated by my chambers ahead of the case management hearing that occurred on Thursday Island. The TSRA contends the way some of the issues were expressed suggested “the Court had preconceived, negative views in relation to the TSRA not only in relation to its role in the proceeding but also in respect of statutory functions of the TSRA extraneous to the proceeding (including funding)”. Some matters raised in the list were said to seek to influence the TSRA’s exercise of its statutory functions and its funding decisions.

(b)    The Court’s letter to the parties dated 2 November 2017. The TSRA contends this correspondence (from my associate) informed the parties that (in the TSRA’s words) “her Honour had unilaterally determined to communicate with PM&C (which funds the TSRA and to which the TSRA reports), the inference being the Court had predetermined supervision of the TSRA by PM&C was required and/or the Court was seeking to influence the TSRA’s statutory and funding function”.

(c)    The venue reasons. The TSRA identified a passage at [148] of the Court’s reasons where I stated that the TSRA’s “actual, as well as apprehended, conflict of interest is obvious”. The TSRA contended I had presumed that a conflict of interest existed, had identified a “misuse of power” by the TSRA, and these findings constituted prejudgement. The TSRA submitted that the statement about conflict of interest found its way into media reports, “damaging public confidence in the TSRA”.

(d)    The Thursday Island case management hearing held on 20-22 November 2017. The TSRA’s submissions recite a number of events that occurred at the case management hearing, without identifying what apprehension of bias is said to arise. The submissions then focus on a statement I made that the Court would not “allow [the TSRA], by its funding powers, to derail the progress of this proceeding”. The TSRA contended there was “no basis” for the Court to express such a view. The TSRA also identified the following statement: “I have found [the TSRA’s] role in this proceeding increasingly disturbing on a number of fronts… if there are any more examples of conduct which is disturbing at a number of levels, then the Court might have to take steps that it would prefer not to take about [the TSRA’s] role in this proceeding” and a further comment that “we’ve all heard things over the last three days that have been disturbing”. This, the TSRA contends, is repeated in the s 66B steps reasons at [22]. The TSRA submitted these statements carried “an inferred threat that should this undefined conduct continue, the Court might as a sanction dismiss the TSRA as a party to the proceedings”.

(e)    The transcript reasons. The TSRA submission on this point is short and can be reproduced entirely:

The Court found that whilst there had been “no opportunity to return” to the TSRA’s “potential conflicts of interest and how they might be addressed…, events during the three days did nothing to diminish my concerns”; at [12], that the TSRA “has purported to assume a central, and generally oppositional role”; at [34] and “the Claim group members in Court were visibly shocked, and concerned.”; at [40] at Senior Counsel for the TSRA informing the Court of Mr Akiba’s concerns on day three of the CMH. It is respectfully submitted that as at no stage did any other party make any such submissions and the Court did not put these suggestions to Counsel for the TSRA, they each amount to a denial of the TSRA an opportunity to be heard on the matters.

(f)    The 18 December 2017 case management hearing. The TSRA identified my use of the word “intolerable” to describe its conduct in obtaining for itself advice from senior counsel while having not funded the applicant and the three claim group member respondents to take the steps ordered by the Court on 22 November 2017.

(g)    The s 66B steps reasons. The TSRA identified statements made in these reasons about the likely progress of one part of the Part B Sea Claim (the Western Overlap claim) if the TSRA had not taken the steps it had in early 2017. It then identified that part of the reasons which went through events in relation to funding decisions made (or not made) by the TSRA, contending it was inappropriate for the Court to review that series of events. It identified the statement that “the Court has no confidence in the TSRA” at [126] of the reasons, alleging that this “final comment found its way into a headline in the Torres News published on 8 January 2018”. As with several of the other events, the TSRA contended that no party had made such submissions, and that there was no evidence before the Court about its funding decisions, and this should have meant that, in effect, the Court should have said nothing about them. The TSRA then identified a number of words used in the reasons that it objected to, such as describing the TSRA’s conduct as “unreasonable”, “obstructive” or “unfathomable”. The TSRA further identified a number of other passages where it appeared to object to the Court describing the work of Gilkerson Legal (while it acted for the applicant and then for the three claim group member respondents) in a positive fashion, while describing the TSRA’s conduct in a negative fashion. The TSRA submitted that:

A fair-minded observer could conclude that the Court had pre-determined who the legal representative to drive the 66B process should be, and that, inappropriately, the Court had determined that the TSRA was obliged to enter into a funding agreement satisfactory to GL for that purpose.

(h)    Paragraph 13 of the orders made on 19 December 2017. This paragraph reserved the parties’ costs of that case management hearing on the basis that the Court may give further consideration, at a later date, to whether it would, of its own motion and after hearing evidence and submissions, make an order for costs against the TSRA, or certain of its board members or employees. The TSRA submitted that:

It is respectfully submitted that a fair-minded observer might think that the Court made Order 13 against the TSRA, its officer and employees in its role as an NTRB, to pressure TSRA board members and staff responsible for carrying out the TSRA’s executive functions by means of the threat of personal sanction should a funding decision satisfactory to the Court and/or GL not be made.

28    To recall, it is paragraph 13 of the 19 December 2017 orders that the TSRA seeks to have set aside by ground 2 of its interlocutory application.

Other evidence and submissions on the interlocutory application

29    On receipt of the interlocutory application, directions were made allowing active parties in the seven proceedings to file submissions and responsive affidavit material if they wished to do so.

30    Submissions were filed in proceeding QUD6040/2001 by the State, the Commonwealth, the Kaurareg people who are parties in several of the proceedings and by the three claim group members joined temporarily as respondents to this proceeding by orders made on 21 November 2017 (to whom I refer as “the three claim group member respondents”). I note the Commonwealth is currently a respondent party to all the proceedings referred to in the TSRA’s application except QUD6005/2002.

31    In addition, submissions were filed by the Badu people in QUD6005/2002. The Badu people are not a party to proceeding QUD6040/2001, but their claim in QUD6005/2002 overlaps with the Part B Sea Claim, and is one of the claims in relation to which the TSRA seeks disqualification orders.

32    In its submissions, the State of Queensland did not seek to be heard on either factual matters or the merits of the interlocutory application, save for an objection to some of the TSRA’s affidavit material. The primary purpose of the State’s submissions was said to be to assist the Court by setting out relevant legal principles and highlighting issues for the Court’s consideration when determining the interlocutory application. Counsel for the State indicated during oral submissions that the State did not support the TSRA’s application.

33    The Commonwealth’s submissions are confined to what it submits are the applicable legal principles and to clarifying the factual context of the conduct which the TSRA submits establishes apprehended bias. The Commonwealth does not support the TSRA’s application.

34    The Kaurareg people filed submissions stating that they oppose order 1 sought by the TSRA in the interlocutory application and do not wish to be heard in relation to order 2. The Kaurareg parties’ submissions also address the standing of the TSRA to bring the application, and the applicable law and factual matters arising from the TSRA’s application.

35    The three claim group member respondents’ submissions address the factual material filed by the TSRA, the applicable law and the question of what orders should be made in relation to the application, including in relation to costs. In addition to their submissions, the three claim group member respondents also filed four affidavits made by Mr Kevin Murphy, Mr Peter Krebs, Mr Oliver Gilkerson and Ms Deanna Cartledge. Each was said to be necessary to respond to the material in Mr Besley’s affidavit.

(a)    Mr Murphy’s affidavit addresses the work that he has undertaken as a consultant anthropologist for the TSRA and the Native Title Office including work in relation to both the Part A Sea Claim and the Part B Sea Claim and the question of whether this anthropological work has been properly represented to the Court by the TSRA.

(b)    Mr Krebs’ affidavit deals with information within his knowledge about the conduct of the proceeding in QUD6040/2001 between 2014 and 2017 as the Principal Legal Officer at the TSRA who preceded Dr O’Brien.

(c)    Ms Cartledge’s affidavit outlines factual information within her knowledge as solicitor on the record for the applicant in QUD6040/2001 between 7 August 2014 and 4 December 2017.

(d)    Mr Gilkerson’s affidavit responds to material in Mr Besley’s affidavit and provides further factual material that he states is context relevant to the application. The affidavit also addresses the funding available to his clients to respond to the interlocutory application and appear at the hearing of this application.

36    The submissions filed on behalf of the Badu people in QUD6005/2002 address the standing of the TSRA to make the interlocutory application in relation to that proceeding. The submissions further state that the Badu parties do not support the TSRA application and do not see any basis for it in relation to that proceeding. These submissions were filed with an affidavit by Mr Michael Neal which simply annexed a copy of the Native Title (Recognition as Representative Body - Torres Strait Regional Authority) Instrument 2016 (Cth) dated 5 May 2016.

37    The day after submissions and responsive affidavit material were due to be filed, Mr Peter Gore contacted the Court by email. Mr Gore represents what are often described as “the commercial fishing parties”. He had previously advised the Court that he was unable to attend the hearing of the interlocutory application. He stated that:

…my clients oppose the first Order sought by the TSRA. They welcome the positive and helpful direction her Honour has given to the parties with a view to bringing this important matter to a satisfactory outcome. I have always regarded comments by her Honour as in the nature of interrogatories designed to assist the Parties; not as concluded views. My clients make no submissions about Order 2. Having read the Submissions made on behalf of Mr David, Ms Kanai and Mr Nona, my clients, with the consent of Mr Gilkerson, adopt and repeat those Submissions in relation to proposed Order 1.

38    The position set out in Mr Gore’s email was accepted in lieu of written or oral submissions in light of the circumstances of which he had previously put the Court on notice.

39    On 13 February 2018, the three claim group member respondents filed a further affidavit made by Mr Gilkerson updating matters addressed in his previous affidavit concerning the funding available to his clients in relation to the interlocutory application.

40    The Indigenous respondent parties represented by the Cape York Land Council in QUD6040/2001 advised that they did not wish to make submissions in relation to the TSRA’s application and were granted leave not to attend the hearing.

41    All parties who had filed submissions appeared at the hearing of this application on 14 February 2018 (with the exception of the parties represented by Mr Gore).

42    Through his solicitor, Mr Akiba informed the Court that he did not wish to make written submissions in relation to the TSRA’s application, however his representative, Mr Bowers, attended the hearing on behalf of Mr Akiba to assist the Court. Mr Bowers made the following short submission:

I might just open by saying that Mr Akiba instructs us that he has not experienced any bias against him personally and is also personally comfortable with your Honour continuing to hear the matter.

As to the claims of alleged apprehended bias put by the TSRA – other than one important issue which I will raise in a moment – Mr Akiba believes that this is an issue – this issue is a complex matter and one that he’s not willing to make submissions on, as he believes that the issue is a matter for others to raise and is happy to abide by the court’s determination.

However, Mr Akiba instructs us that if the appointment of a new judge is likely to delay the matter to a material extent, then he would not support the appointment of a new judge to hear the matter. Mr Akiba is 81 years of age and would dearly love to [see] this claim resolved during his lifetime, and the claim group he currently represents believes that this claim has taken far too long to resolve. Mr Akiba has and seeks to continue to work cooperatively with all parties to achieve the efficient implementation of the court orders and proceeding with the authorisation process as soon as possible. Your Honour, our client makes no submissions with respect to paragraph 2 of the application.

Matters not determined

43    During the hearing it became apparent that if I were to determine either the costs application against the TSRA made by the three claim group member respondents in respect of the hearing of the interlocutory application, or the order sought by the TSRA in paragraph [2] of its interlocutory application, I might be seen as embarking on the very course the TSRA submitted I was disqualified from pursuing.

44    Accordingly, I reserved both those matters until after the publication of my decision and reasons on the disqualification application. Senior counsel for the TSRA ultimately agreed with this course. The parties can then be heard on the appropriate course to take in relation to these two matters, and I have made directions accordingly.

Determination of the application

45    The matters to which I refer at [23] above mean this application is premature, insofar as it might relate to any trial of the Part B Sea Claim, whether as to the whole, or as to a particular substantive issue. First, there may never be a trial if the matter is determined by consent. Second, the allocation of a trial judge is a matter for the National Operations Registry in conjunction with the Chief Justice, and any allocation will occur only if the matter is ready, or close to ready, for hearing. Third, any substantive interlocutory dispute will also be referred to the National Operations Registry for allocation. Accordingly, this application must be treated as one where the TSRA seeks that I disqualify myself from engaging in any case management of this proceeding, and the other six proceedings identified in the interlocutory application. The parties informed the Court they could not refer the Court to any authorities on apprehended bias which have arisen in a comparable situation. However, I have assumed in favour of the TSRA that an application for disqualification can be made in relation to case management functions. It seems to me in principle that is likely to be correct as during case management there are still contested matters which can arise, such as costs and minor contested interlocutory issues on procedure.

Applicable principles

46    The Commonwealth submitted, and I accept, that two Full Courts of this Court have recently set out the approach to determining an allegation of apprehended bias, and the approach they have set out is binding upon me as a single judge. Those decisions are ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]–[36] (Allsop CJ, Kenny and Griffiths JJ), and Zaburoni v Minister for Immigration and Border Protection [2017] FCAFC 205 at [62]-[63](Griffiths, Moshinsky and Bromwich JJ). In ALA15, the Full Court said:

35    Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner); Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 (British American Tobacco)).

36    Other relevant principles are:

(a)    at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i)    there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii)    there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

(b)    an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and

(c)    as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).

47    I accept the submission of the TSRA (referring to Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [7]) that the threshold is one which can be described as an objective possibility, not probability. The other parties did not dispute this submission.

48    From the extract in ALA15, three matters of particular relevance to the present application may be noted:

(a)    The need for identification of precisely what matters might lead a judge to decide a case other than on its legal and factual merits;

(b)    The existence, and articulation, of a “logical connection between the matter(s) and the feared deviation from a course of deciding a case on its merits; and

(c)    The hypothetical fair-minded lay observer, around whom the test revolves, is to be attributed with “appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias”.

49    For ease of reference, in the remainder of these reasons I shall call this person the “hypothetical lay observer”.

50    In Cristovao v Tan & Tan Lawyers Pty Ltd (No 3) [2018] FCA 20, at [34], Kerr J noted that the authorities establish a hypothetical lay observer does not make “snap judgments”, and is “neither complacent nor unduly sensitive or suspicious”, referring to Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [14] and [53]. Kerr J also observed that:

Although not taken to be a lawyer, the reasonable and fair minded hypothetical person is to be taken to be informed about the core considerations relevant to his or her arriving at an apprehension that a judge might be biased.

51    Although such a person is not assumed to have a detailed knowledge of the law, the Court will consider what the reaction of such a person might be to the impugned conduct in the context of ordinary judicial practice as it has developed to take account of the exigencies of modern litigation, including “more active case management”: see Johnson v Johnson at [13]. I note this description of “more active case management” was one given 18 years ago. It is undeniable that Courts’ case management has become considerably more active since that time, and in this Court in particular the level of engagement which judges, and parties, are expected to have in ensuring a proceeding is conducted effectively, efficiently and in a way where the costs incurred are proportionate to the subject matter of the proceeding is reflected in s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth), and in this Court’s (relatively new) Practice Notes. The following extracts indicate some of the primary considerations governing case management in this Court.

52    Clause 7.1–7.4 of the Court’s Central Practice Note (CPN-1, 25 October 2016) states:

7.1     The overarching purpose of civil practice and procedure and case management within the individual docket system is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible (see ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”)).

7.2     The parties and their lawyers are expected, and have a statutory duty, to co-operate with the Court and among themselves to assist in achieving the overarching purpose and, in particular, in identifying the real issues in dispute early and in dealing with those issues efficiently. There are no exceptions to this expectation because of the size or nature of the matter.

7.3    This co-operation requires (and the Court expects) that the parties and their lawyers think about the best way to run their cases conformably with the overarching purpose. The parties and their lawyers can expect that the Court will engage with them in a dialogue to achieve the overarching purpose. The Court’s Rules should never be viewed as inflexible. The overarching purpose includes the elimination of unnecessary “process-driven” costs. The Court expects parties and their lawyers to have in mind at all times the cost of each step in the proceeding, and whether it is necessary.

7.4     While the Court will manage the issues in dispute, the proceeding is always the parties’ proceeding. In everything they do, the parties should approach their role as the primary actors responsible for identifying the issues in dispute and in ascertaining the most efficient, including cost efficient, method of its resolution.

53    Clause 8.1 of the CPN is also relevant:

The key objective of case management is to reduce costs and delay so that there are:

•    fewer issues in contest;

•    in relation to those issues, no greater factual investigation than justice requires; and

•    as few interlocutory applications as necessary for the just and efficient disposition of matters.

54    In GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Limited [2013] FCAFC 150 at [36]-[40], the Full Court (Allsop CJ, Middleton and Katzman JJ) pointed to a number of other characteristics of the hypothetical lay observer which I consider relevant to the determination of this application:

First, whether or not the suggested apprehension is reasonable must be considered in the context of ordinary judicial practice. A judge is not expected to sit in silence, Sphinx-like, while arguments are presented and will often form tentative opinions on matters in issue. Counsel are ordinarily assisted by hearing those opinions: Johnson v Johnson (2000) 201 CLR 568 at [13], [53] and [80]. Indeed, the exposure of those opinions is calculated to encourage a response from counsel. It is invariably an exhortation for assistance, even when it is expressed in apparently emphatic terms.

…

Fourthly, the fair-minded lay observer will also recognise that a professional judge is capable of departing from an earlier expressed opinion.

Fifthly, it is important to recognise that “disqualification flows from a reasonable apprehension that the judge might not decide the case impartially, rather than that he will decide the case adversely to a party”: Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [32]; see also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352.

55    As the Commonwealth and other parties noted, and the TSRA accepted, the setting for the articulation of all these principles has generally been one where the judge against whom the allegations are made is the judge charged with the hearing and determination of the controversy between the parties, whether at final or interlocutory stage. Hence the way the “first step” identified by the Full Court in GlaxoSmithKline at [36(a)] is expressed – whether the judge will “decide a case” on other than on its legal or factual merits. No party was able to point the Court to a case where an allegation of apprehended bias had been made, or considered, in the context of case management where it is unknown whether the judge would be determining any substantive controversy between the parties or, even, determining any contested interlocutory controversy.

56    Similarly, the passage in Johnson at [13] to the effect that judges “are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented” is directed at the usual situation for the exercise of judicial power – a trial, or hearing (whether interlocutory, final or appellate). Case management is quite different, as the contents of the CPN indicate.

57    Case management of native title proceedings has its own additional characteristics and challenges. The Native Title Practice Note recognises this at [5.2]. There are a myriad of practical, logistical, cultural, financial and forensic challenges which arise, even in circumstances where the controversy between the parties may end up with a consent determination. There are often complex issues arising within claim groups, and within entities controlled and operated by claim group members, or by other people, that affect the conduct of a proceeding. The native title jurisdiction has been afflicted by extraordinarily long delays in proceedings coming to a resolution, with attendant effects on all parties involved, but especially on claim group members. Due in part to the objectives of the Native Title Act 1993 (Cth), management of cases is, in contrast to most other areas of the Court’s work, structurally intertwined with the availability of public funding, for claimants in particular (although not only for claimants), as the Preamble to the Act recognises:

It is important that appropriate bodies be recognised and funded to represent Aboriginal peoples and Torres Strait Islanders and to assist them to pursue their claims to native title or compensation.

58    Case management requires active involvement from the case managing judge; it may require (and this is not limited to native title) criticism of parties’ conduct, and challenges to the way parties wish to conduct a proceeding, where there are effects on the time, resources and costs being expended in the proceeding (by the parties and by the Court). That is all the more acute in proceedings where many of the parties are funded from public funds. The hypothetical lay observer is to be attributed with knowledge of all these circumstances.

59    The fifth point made by the Full Court in GlaxoSmithKline at [40] is one emphasised by many of the parties’ submissions in this case. The distinction between an apprehension of bias or partiality, and an apprehension a party may be unsuccessful in an argument (or in a proceeding), must be clearly understood. A party has an entitlement to have its “case” dealt with fairly and in accordance with law, but has no entitlement to succeed in the case put forward, or in any particular argument. Nor, in modern case management, does a party have an entitlement to conduct a proceeding entirely as it wishes: the terms of ss 37M and 37N, and the Court’s Practice Notes make that clear. Nor is a party entitled to expect to be immune from criticism, sometimes strong criticism, because of its conduct in relation to a proceeding. Doyle CJ emphasised these matters in IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd & Ors [1999] SASC 249; 78 SASR 151 at [252]-[253]:

I consider that the fair-minded observer would appreciate that this is a case in which the judge has decided a number of procedural and substantive issues adversely to IOOF. The result is that IOOF cannot present its case as it would like to, and has already failed on some important issues. As well, there have been frequent clashes between Mr Abbott and the judge. They have involved criticism of Mr Abbott’s conduct of the case, although much of that flows from the manner in which (not the bare fact that) he continues to oppose the course of action taken by the judge and to complain about the judge’s approach. Some of the criticism has become personal, and some unnecessarily so. The fair­minded observer would appreciate that IOOF can appeal in due course, but that the trial must be conducted in accordance with the judge’s rulings, right or wrong. The observer would realise that if the judge is consistent, IOOF will continue to face obstacles in its path.

Knowing all this, I do not consider that the fair-minded observer would, assessing it as a whole, have reason to apprehend that the judge is anything but impartial in the required sense. Viewing the judge’s conduct in context, I consider that the fair-minded observer would appreciate that while certain issues have been resolved adversely to IOOF, that is neither the result of a partial and prejudiced approach, nor suggestive of one in the future.

60    Although it is a lengthy passage, I consider it is worth recalling what was said by Mason J in Re JRL; ex parte CJL [1986] HCA 39; 161 CLR 342. Re JRL was a case where a court counsellor had approached a judge of the Family Court in the judge’s private chambers, so that she could complain about the judge’s proposed adjournment of the hearing of a custody application. Her views favoured the wife in the custody dispute the judge was dealing with. During her conversation with the judge the counsellor raised her qualifications (indicating that her opinion was that of a qualified expert, a matter which was in question in the proceeding) as well as discussing aspects of the proceeding itself. When the husband learned of the counsellor’s conduct, a disqualification application was made. At page 352, Mason J said:

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (27) and Livesey (28) has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (29); Watson (30); Re Lusink; Ex parte Shaw (31). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

61    Applying those principles to the current circumstances in this proceeding, the correct question is whether the hypothetical lay observer might apprehend from the conduct or statements identified by the TSRA that I might not bring an impartial mind to deciding whatever contested case management issues may need to be determined by me. The correct question goes no further than that, in circumstances where any interlocutory application of substance (such as the foreshadowed s 66B application), any separate question or any final hearing, will be referred to the National Operations Registry for allocation to a judge.

62    The question is not whether I might continue to criticise the TSRA’s approach to the allocation of funding and resources for this claim, or criticise it for apparently imposing its views about, for example, the direction of anthropological research in relation to the applicant’s case. Nor is the question whether, if a decision needs to be made about a case management approach (eg, referral to mediation, the filing of a statement of issues, facts and contentions, the timing of filing of documents, programming orders relating to expert evidence, referral of experts to joint conferences with a Registrar) and the TSRA puts forward a particular contention, I might make a decision which is adverse to the TSRA’s contention. In the latter example, the question is whether there is a reasonable apprehension I might do so for reasons of partiality against the TSRA, rather than because of what I consider to be the appropriate course to be taken in the circumstances.

63    The State drew the Court’s attention to the articulation by Gageler J in Isbester, where his Honour described (at [59]) the determination of an allegation of apprehended bias as involving “three analytical steps”:

Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.

64    There was some discussion during oral submissions about whether the third of his Honour’s steps represented a new articulation of the established test. It is not necessary to enter into that debate: Isbester was of course a case about apprehended bias in the exercise of an administrative power, and is somewhat removed from the present proceeding. While the Court dealt with some general principles about apprehended bias, I consider the closer authority (and one by which I am bound) is ALA15. Nevertheless, Gageler J’s third step illustrates the importance of establishing the requisite connection, and the reasonableness of the apprehension of a connection, between the factor or factors identified, and the “deviation” from impartiality that might occur.

65    I do not accept the TSRA’s submission that there is any “convention” amongst courts that where there is a possibility of an apprehension of bias, another judge will be found to deal with the proceeding. There is no such convention: indeed, were there to be one, it would be contrary to the judicial oath. The TSRA cites S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 at 369 and British American Tobacco Australia Ltd v Peter Gordon & Anor [2007] NSWSC 109. Neither of those cases stand for any such general proposition.

66    The “convention” of which Kirby P in S & M Motor Repairs spoke was a convention, internal to a court, about how judges might identify (prior to allocation) cases with which they may have had a prior association, especially as counsel. That indeed was the circumstance giving rise to the disqualification application in that proceeding. It is worth noting that despite the judge having a substantial history of acting as counsel for the defendant, the majority (Priestley and Clarke JJA) of the NSW Court of Appeal upheld the refusal of the judge to disqualify himself, on the basis that any apprehension of bias would not be reasonable, if a lay observer were properly informed about how barristers conduct their work. Kirby P, in dissent at 369, said:

In order to ensure the maintenance of high standards to preserve the appearance of the neutrality and impartiality of the judges and, as well, to avoid damage to the general reputation of the judiciary that may attend unseemly public questioning of a judge or challenge to his or her appearance of impartiality, a number of useful conventions have developed. Certainly, they are regularly followed in the practice of the Court of Appeal. If a judge prefers, because of some past association, not to sit in cases involving particular parties for fear of actual or imputed bias, he or she will so indicate and, save for necessity, will not sit in such cases.

67    The same kind of circumstances arose in British American Tobacco, and Brereton J, in ruling on the disqualification application against him, referred to the same kind of practice, internal to courts, at [71]. This practice, relating to identifying past associations before a case is allocated, has no application in the current circumstances.

68    I note that in the latter case, Brereton J at [94], describing what senior counsel for the TSRA in this application also referred to as the “double might” aspect of the test for a reasonable apprehension of bias, concluded that the test was made out in relation to one issue in the proceeding: what was called the “iniquity issue”. The content of that issue is not material for present purposes. What is notable is that although Brereton J considered he should not hear and determine any application about the “iniquity issue” (at [94]), his Honour held at [97]-[98]:

As Mr Smith SC submitted, the question of apprehended bias must be considered in the context of the issues that the court has to decide. Thus, for example, in Livesey v NSW Bar Association (1983) 151 CLR 288, the test derived from the authorities was said to be that a judge should not hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial or unprejudiced mind to the resolution of the question involved in it [Re JRL, 349 (Gibbs CJ), 351 (Mason J)]. And in Aussie Airlines, where what was involved was the hearing of two preliminary questions, the judge identified the issue on the disqualification application as being whether the parties or the public might entertain a reasonable apprehension that as the trial judge he might not bring an impartial and unprejudiced mind to the resolution of the questions before him in the present case. These cases show that the question of apprehension of bias is inextricably interwoven with identification of the issues that the judge is called upon to decide. Accordingly, attention needs to be focussed separately on (1) the issues that may arise on the final hearing of the matter; (2) the issues that arose in the proceedings on 29 November 2006; and (3) the issues on the transfer application set down for hearing before me on 26 February 2007.

The final hearing

At present, although the pleadings have not yet been completed so as to distil the issues, it seems likely that the iniquity issue will be the major issue on the final hearing. As the final hearing has not been set down before me, insofar as it relates to the final hearing, the application for my disqualification from it is premature, and it is unnecessary and inappropriate that I formally disqualify myself at this stage from a hearing that has not yet been and probably never will be allocated to me. But I will indicate that, assuming that the iniquity issue will be raised, I would not sit on the final hearing.

69    Brereton J’s approach has some relevance to the present circumstances. His Honour emphasized the prematurity of the application in relation to the general course of the proceeding, and the trial, and that is a matter I have noted at [45] above. Moreover, Brereton J made it clear he would continue to hear and determine other interlocutory matters in the proceeding. This illustrates, again, the importance of determining the connection between the identified factor and the asserted deviation from impartiality.

70    The TSRA also submits that there is authority for the proposition that if an apprehension of bias arises, a judge “must” disqualify herself or himself, and it is “irrelevant that case management considerations would support a different course”, relying on Kirby v Centro Properties Limited (No 2) [2011] FCA 1144; 202 FCR 439 at [10] per Middleton J. That was a case where Middleton J had previously determined two proceedings (one on liability and one on penalty) in relation to a situation his Honour described in the following way (at [26]):

…[an] area of overlap between the factual and legal matters canvassed in the ASIC proceeding and these proceedings is extensive. I am not concerned with a lone finding or the evidence of a single witness.

71    It was in those circumstances, that his Honour made the observation on which the TSRA relied. In other words, having concluded there was a reasonable apprehension of bias because of findings already made in concluded proceedings, as to both liability and penalty, case management considerations could not dislodge or alter his Honour’s duty to disqualify himself. That is, with respect, obviously correct and quite different from the present situation. The TSRA also relied on an observation by Kirby P in S & M Motor Repairs at 373C to the same effect, and it does not advance the TSRA’s submissions for the same reason.

72    Here the question is not, having concluded a reasonable apprehension exists, whether case management considerations mean I should nevertheless continue to deal with the proceeding. The question is, given my only function is to engage in case management, what kinds of factors could give rise to a reasonable apprehension of bias with the requisite connection to the future conduct of the proceeding so as to lead to my disqualification from continuing to perform that case management function?

73    The State submitted (at [12] of its written submissions and by reference to M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability, (6th Edition, Lawbook Co, 2017), at 695 [9.240]), that:

“some very strong expressions of exasperation with, or disbelief of, parties or their witnesses” have been allowed, especially in more recent non-jury cases, as judges have assumed “a more central and controlling role” in the progress of a case.

74    The State referred as an example to IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd [1999] SASC 249; 78 SASR 151 at [224]-[253], one of the cases cited by Aronson, Groves and Weeks. At [234] Doyle CJ said:

The remarks that the judge made would not cause the fair-minded observer to suspect impartiality. That person would appreciate that the judge strongly disagreed with the submissions being put to him, and with the approach of counsel, and was annoyed by some of the matters put to him. The fair-minded observer would also understand that occasionally judges may get annoyed, like any other person. The judge’s attitude to the submissions necessarily implied that the judge thought that someone was acting irresponsibly. But the occasion for a judge to express this view can arise in the course of a trial, and the fact that the judge does so cannot, in my opinion, be pointed to as an indication of bias

75    At [237]:

The fair-minded observer would appreciate that the judge had, as the case unfolded, formed pretty definite views about its proper management, views to which Mr Abbott was implacably opposed. The fair-minded observer would realise that the judge and Mr Abbott were going to continue to disagree on these issues, and that to the judge Mr Abbott’s continued opposition would appear to be obstruction to the sensible conduct of the case. The fair-minded observer would understand that the judge need not and should not permit these matters to be constantly re-agitated, and also that when the issues on a point were clear, time limits for argument on them could be set. The fair-minded observer would realise that on certain issues, particularly of procedure, the judge had obviously made his mind up, but that that was inevitable in a long running case like this. The observer would conclude that the point had been reached at which Mr Abbott should, without having to concede the correctness of the judge’s course, recognise the judge’s authority, conduct his case accordingly while maintaining his opposition, and consider his client's remedies at the end of the case.

76    At [242]-[243]:

The complaint relates to the judge’s approach in separating out issues of law, sometimes on his own initiative, and in limiting the evidence to be called by IOOF. The complaint is that the judge has pre-judged how the issues in the case should be tried.

I consider that the complaint is misconceived. It is the function of a judge, especially in a long case, to consider how the case can be heard efficiently and fairly. The judge is entitled to raise the possibility of an approach that will achieve an efficient and fair disposition of the case. If a proposal to that end is made, and the judge forms the view that it should be adopted, the judge is entitled to require that it be adopted and that the judge’s ruling be obeyed. In a long case the same or similar issues may continue to arise. The judge can be expected to take a consistent approach if they do. In substance, that is all that has happened here. The judge has adhered to the view that there are issues of law in the case that can and should be isolated and decided in the interests of the fair and efficient disposition of the case. It is not a question of whether the judge is right or not. That is a matter for appeal. The fact that the judge has done what he did, and the manner in which he has done it, is not suggestive of any lack of impartiality.

77    These observations are all the more applicable when a judge is performing only a case management function.

78    One of the matters to which Doyle CJ referred in IOOF was the conflation of allegations of apprehended bias with allegations about the correctness of findings, rulings or interlocutory decisions. The latter, his Honour noted, are properly challenged by way of an appeal. So too in the present situation. If the TSRA, in its capacity as a party, wishes to challenge a ruling or order made during case management it can do so by this Court’s appellate processes. The TSRA indeed sought leave in respect of some of the paragraphs of the Court’s orders made on 19 December 2017, although as I noted at [6] leave was refused. It did not argue on the leave to appeal application that the orders were erroneous because they were affected by any apprehension of bias.

Waiver

79    Some parties submitted the TSRA had waived its right to object to me continuing as the case managing judge in this proceeding. In particular, that was because the first conduct relied on by the TSRA occurred in September 2017 and this application was not filed until January 2018, after several further decisions had been made, and many more steps taken in the proceeding.

80    In GlaxoSmithKline at [33] the Full Court explained where waiver will be held to have occurred:

A party will likely be held to have waived its right to object where the party or its legal representative knows the circumstances that give rise to the disqualification but acquiesces in the proceedings by not taking objection: Nicholls at [76].

81    The reference to Nicholls is a reference to the High Court’s decision in Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427.

82    On one view, the timing of the TSRA’s application might suggest it has acquiesced in many steps of the case management of this proceeding by me and in relation to what has been said in reasons and in case management hearings. Indeed, many of the instances on which the TSRA relies are instances where, by its counsel or legal representatives, something could have been said at the time if there was perceived unfairness or partiality, but it was not. However, I have decided to assume, in favour of the TSRA, that it is possible for the matters it identifies to be considered cumulatively, and in a way which does not engage the principles of waiver. I consider it preferable to decide this application on the substantive arguments put by the TSRA, even if the other parties’ submissions about waiver could have been found to be correct.

Contextual matters relevant to the knowledge of the hypothetical lay observer

83    The hypothetical lay observer is assumed to know the actual circumstances of the case: GlaxoSmithKline at [37]. The actual circumstances of the case management of this proceeding since September 2017 are complicated, but all of the impugned conduct has occurred in that particular context. The actual circumstances have been set out in detail in each of the three sets of reasons for judgment given so far. The hypothetical lay observer would be reading the impugned parts of those reasons, and any remarks at case management hearings between, or after those reasons, with that overall context. There are four contextual matters in particular that should be mentioned.

My role as case managing judge

84    At the commencement of the Thursday Island case management hearing, as has been my practice in each of the regions across Australia where I am now undertaking a case managing role in native title, I explained to the parties, and to all those present, the recent changes to the Court’s native title case management, including what my role in the Part B Sea Claim was:

HER HONOUR: Good morning, everyone. I want to start with a few remarks before I call the matters for case management, and I also want to run through the order in which I propose to deal with matters today and over the next few days. Can I assure everyone that there will be plenty of time for everybody to say what they want to say and to make sure that we deal with everything that needs to be addressed in these seven proceedings. Can I say I’m very pleased to be here in the Torres Strait and to have the opportunity to hear from and meet some of the claim group members and to undertake some case management of these seven claims close to country.

… Now, I want to tell you – I want to start by telling you a little bit about the rearrangement of native title in the Federal Court because many of you may be surprised to see a judge from all the way down in Melbourne coming up here to deal with a matter in this region, and I want to explain to you why that has happened.

As you know, the Federal Court is a national court, so we are one court that covers the whole of Australia, not like the State courts. Our current Chief Justice, Allsop CJ, has been doing a lot of work to emphasise that the Federal Court is a national court, one court, even though it has judges based in different states. So under his leadership, the court has developed a national court framework. It has divided the court’s work into national practice areas, and the allocation of cases is now managed nationally. It is not managed state by state. So judges are moving around a lot to do trials, especially if they have particular experience. For example, some of you may know that Murphy J, who’s one of my colleagues from Melbourne, is managing the Indigenous wages claim case up here.

So there have been the same kind of changes in native title. So in August this year, the Chief Justice approved a recommendation that there should be a rearrangement of the case management functions for native title across the practice area and across the country, and there are a number of reasons for that. One major reason – one purpose was to broaden the number of judges who are actively working in native title. That’s because this court is – has lost and is losing a lot of its very experienced native title judges.

….

the court needs to broaden out the judges that are working in native title and get them experienced and learn them up in the area. And it was also considered that we could better divide the way we handle native title into regions, so that we deal with the native title cases in regions that reflect which native title representative body is working in that region, and that means that we’ve divided the work into 11 regions. So we’ve got Victoria and Tasmania, New South Wales and the ACT, South Australia, the Northern Territory central region, the Northern Territory northern region, Cape York, Carpentaria and the Torres Straits – that’s this one – the northern region for Queensland, a southern region for Queensland, the Pilbara in Western Australia, including Geraldton, the Kimberley in Western Australia, and the Goldfields and Central Desert region, including the south-west of Western Australia.

So for each of those 11 regions, the Chief Justice has allocated a judge to case manage each region. The Chief Justice has chosen which judge gets to case manage each region, but individual judges have not chosen that. The Chief Justice has chosen that. The Chief Justice has allocated me to manage Cape York, Carpentaria and Torres Strait. I am also managing the Kimberley with Bromberg J, and I am managing the Victorian native title cases. Now, although I’m case managing claims in this region, that doesn’t mean if we have to have any contested hearings that I will do them. I’m only the case managing judge. The court’s national operations registry and the Chief Justice will allocate trials and any major interlocutory hearings when they arise, and they will choose the judge who does them. Okay?

Because – just so you see me case managing doesn’t mean if there’s a contested matter, that I will do it. … you’re probably going to see a lot of faces you haven’t seen yet, but I can tell you that we’re all very much committed to this work, and we’re looking – we’re all looking forward to working with claim group members, respondents and their representatives in this area. Okay. So let’s turn now to what I – how I want to run these next three days. Can I start by thanking all the parties who made submissions ahead of this hearing. I found them all very helpful.

85    I needed to become familiar with a proceeding that has been in the Court for 17 years, together with its relationship to the other Torres Strait claims, and then more or less immediately deal with the very significant change of course, prior to my involvement, that occurred in early 2017 as a result of the TSRA’s new approach to funding and resource allocation in the Part B Sea Claim. It is fair to say that this situation, together with the course of events since September 2017, including several twists and turns, has had consequences for the form and content of my reasons for judgment, and for my remarks during various hearings. It has meant those judgments have been produced under considerable time pressure, and in circumstances where the behaviour of the TSRA in relation to the proceeding (in its funding and resource allocation role as a representative body) was central to the reports and complaints being made to the Court which were alleged to be affecting the progress of the proceeding. There has been a sense that the Court is far from informed about why the TSRA has taken the approach it has. Mr Besley’s affidavit filed in support of the disqualification application purports, belatedly, to give some explanation, from the TSRA’s perspective, but it is irrelevant to this application.

86    I have made it clear that, since this proceeding has been in the Court for 17 years (and the Badu claim for 16 years, the Kaurareg claims for 10 and 9 years respectively), my case management strategies would be directed to securing resolutions, whether through trial or negotiation, as quickly as reasonably practicable. I have also made it clear from the outset, as the TSRA acknowledged in this application, that the applicant needs to be properly constituted by individuals who are representative of the Part B Sea Claim group, and authorised by them.

87    Performance of these functions has involved, and will continue to involve, making orders and giving directions, and on occasions, no doubt, not rejecting requests from, or suggestions by, the parties about the way forward for case management.

88    It is in the performance of these functions going forward that the TSRA must identify the reasonably apprehended deviation from impartiality.

The TSRA’s role in the claims identified in its proposed orders

89    In determining how a hypothetical lay observer might apprehend the factors relied on by the TSRA might cause me to deviate from deciding matters in case management impartially in relation to the TSRA, it is necessary to attempt to understand what role the TSRA has as a respondent. The present situation is somewhat different from the usual situation where apprehended bias claims are made, where the party who makes the application is a party with a readily identifiable legal interest in the outcome of the proceeding one way or the other, usually because orders will be made against that party or may affect the interests of that party in a way a party seeks to avoid. That is not the TSRA’s position, since it has made it clear on many occasions that it supports a determination of native title in the Part B Sea Claim area, as one might expect of the Pt 11 representative body for the region concerned.

90    This part of my reasons is taken substantially from the Commonwealth submissions, which I accept.

91    Although it was listed as a party, the TSRA did not appear at the trial of the Part A claim: see Akiba v Queensland (No 3) [2010] FCA 643; 204 FCR 1 at 11. Nor did it participate as a party in the appeals to the Full Court or the High Court of that proceeding. The Commonwealth is correct to submit that no interests specific to the TSRA are recorded in the determination of native title made in relation to Part A of the claim on 23 August 2010. Instead, its active role was as the legal representative for the applicant. The TSRA itself is recorded as such in the Commonwealth Law Report for the High Court proceeding: see Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 at 245.

92    With the exception of the Northern Peninsula Sea Claim (QUD114/2017) and the North Eastern Peninsula Sea Claim (QUD115/2017), the TSRA is the “recognised representative body” under s 203AD of the Native Title Act for the area corresponding to the native title claims it seeks to have included in any disqualification ruling. The other two claims are partially within the geographical area it covers. Its functions in this capacity are set out in s 203B of the Native Title Act. In an affidavit sworn on 15 November 2017 and read at an earlier stage of case management, Dr O’Brien described the role of the TSRA as a respondent in this proceeding in the following way (at [19]):

On 15 June 2017, I caused Just Us Lawyers to be engaged on behalf of TSRA in its capacity as a NTRB. While TSRA filed a Form 5 in 2001 citing both its statutory role and its functions as an NTRB, all instructions to Just Us Lawyers have been in respect of TSRA's functions and responsibilities as an NTRB. In fact, where native title is not concerned, legal work for the TSRA in all its other statutory roles is undertaken by the Australian Government Solicitor not by the lawyers employed in the Native Title Program. I have no input whatsoever into this process.

(emphasis added.)

93    An example, as I understand it, of another “statutory role” performed by the TSRA is its role under the Aboriginal and Torres Strait Islander Act 2005 (Cth), by which it conducts a fisheries program and is a member of the Protected Zone Joint Authority. It appears therefore that the TSRA as a respondent is not represented by Just Us Lawyers in this “other” statutory role as a NTRB.

94    Rather, as Dr O’Brien’s affidavit makes clear, the TSRA’s active participation in this proceeding, certainly since June 2017 and through its legal representatives, has been in its capacity as a representative body recognised under s 203AD. The acronym “NTRB” is one commonly used, although the statutory term is “representative body”. Since the parties have used “NTRB”, I will also use that term.

95    The TSRA’s contention that it is a respondent in its “capacity [or function] as a NTRB” – has been repeated by the TSRA on many occasions. Of course, the TSRA has the functions conferred on it by Div 3, Pt 11 of the Act as a result of its recognition under s 203AD. However, as other parties have submitted to the Court on several occasions, what content this gives its role as a respondent in the proceeding has never been clear.

96    I consider the hypothetical lay observer would also be struggling, as the Court and (it would appear) some of the other parties have been, to give content to the TSRA’s role in this proceeding, certainly as an active respondent, which is what it has become since early 2017. However, its activity has really centred on altering the funding and resource allocation conditions for the applicant and the claim group, including for their long-standing legal representatives and anthropologists which are not functions that can be readily reconciled with its status as a respondent. Herein lies the dilemma for the Court in how to deal with the effects of the TSRA’s conduct on this proceeding. I consider it is a dilemma the hypothetical lay observer would recognise and appreciate.

97    When I asked Mr Bick to give an example of a situation that might arise where I would be called on to decide something involving the TSRA during case management, the example he gave was the following:

MR BICK: In relation to Mr Duffy’s submissions, your Honour, he said that it was difficult to see what the logical connection or link was in this case. Might I give an example to illustrate that. It might be that ultimately the TSRA forms the view that the authorisation process currently underway is flawed for some reason, and it may seek a direction - for example, that the process be commenced again or that it be readvertised or something of that sort. The reasonable-minded lay observer might think that the court wouldn't bring an impartial mind to any such application by the TSRA, on the basis that the court would regard that as further derailing or obstruction or something of that nature. There is ample logical connection, in our submission. Next, can I move to one - a small point raised by Mr Duffy - that is - - -

HER HONOUR: I'm just - sorry. So a hypothetical example of an application by the TSRA for what?

MR BICK: For directions in relation to the authorisation process. The example I gave was if, for example, it were flawed - for example, not being advertised properly. It’s necessary that the authorisation process provide an appropriate opportunity to all members - -

98    Even if the TSRA decided to take the unusual step for a representative body in the region to challenge in an adversarial way the s 66B process adopted by an applicant and the claim group, the example given by senior counsel for the TSRA, is not one that can supply the requisite connection between the factors identified and the apprehended deviation from impartiality. That is for at least two reasons. First, because any contested s 66B application will be referred for allocation to a judge by the National Operations Registrar. There is no reasonable basis to apprehend I would deal with the application. Second, even if I were to be allocated the matter, what the TSRA appears to submit is that a hypothetical lay observer might apprehend I might fail to consider its (suggested) challenge to the authorisation process in accordance with law and the evidence, because I have been critical of its funding and resource allocation decisions (and their effects on this proceeding) in the ways it has identified. There is no logical connection of this kind which can be drawn, particularly in circumstances where I have identified a new authorisation and replacement of the applicant through s 66B as a key imperative for the progress of the Part B Sea Claim. Why, one might ask rhetorically, might a hypothetical lay observer apprehend in those circumstances that I might not deal impartially with an application that pointed to material defects in the new authorisation process, when the unrepresentativeness of Mr Akiba as the applicant is a matter I have identified, and been concerned to ensure is rectified in accordance with the processes under the Native Title Act?

99    I consider the only example proffered by the TSRA is not one where the requisite logical connection could be drawn between my criticism of the TSRA in performance of its funding and resource allocation functions and how that has impacted on this proceeding, and an apprehension I might fail to apply the law surrounding s 66B of the Native Title Act to any application to replace the applicant.

The TSRA’s conduct in relation to funding and resource allocation

100    The TSRA could only bring this application because it is a party in QUD6040/2001. Yet, as the Commonwealth submissions point out, the TSRA’s status as a party (rather than as the legal representative for the applicant) seems to have been entirely historic and peripheral in the Part A claim before Finn J, notwithstanding that was a fully contested claim and the subject of a long trial. It is clear from the evidence that I have recounted in my previous decisions that the TSRA had a similar non-active role in the remaining Part B aspect of the claim until early 2017.

101    The differential status of the TSRA as a non-party to the other six proceedings, yet the existence of criticism from me about its approach as a NTRB as it has affected those other proceedings illustrates that the conduct of the TSRA which has been the subject of my observations and criticisms, both in reasons and during the case management process, is disconnected from its status as a party. Since I have been case managing this proceeding, the TSRA’s conduct has not been connected to its status as a party in this proceeding, and as a non-party in the other six proceedings. Rather the conduct has been connected to its decisions on funding and resource allocation: that is, connected to what the Part B Sea Claim applicant and the claim group (and the Kaurareg people, in this proceeding and in their own proceedings, and the Badu people in their own claims) have and have not been able to do so that they can progress the material issues arising in the proceedings. All these matters have been described in previous reasons – for example, whether existing anthropological research should be halted, whether new anthropologists should be retained, what level of funding should be provided to anthropologists and legal representatives and what level of funding should be provided to claim group members to attend a case management hearing. These are all matters of funding and resource allocation. There has been no step taken by the Court that approaches consideration of a question of fact or law arising in the Part B Sea Claim applicant’s native title claim and affecting the TSRA as a party, with an interest (proprietary or otherwise) affected by a determination of native title, rather than as a NTRB. Nor is there likely to be.

102    I have said in other decisions in the native title practice area that funding difficulties cannot stand in the way of case management of a native title claim, especially a claim that has been in the Court for over a decade: see Agius v State of South Australia (No 4) [2017] FCA 361 at [85]-[117], and the cases there referred to.

103    Many of the decisions to which I refer in Agius concern a litigant that had been unable to secure funding. Of course, that is not the issue in the Part B Sea Claim: rather, the issue since early 2017 has been to whom the TSRA has agreed to direct funds and funding, and for what purposes, as well as allocation of its public funds towards advancing its own perspective on the course the Part B Sea Claim should take, while suggesting there are limited resources for claim group members. There has never been a suggestion, in writing or orally, that the TSRA is unable to fund the Part B Sea Claim: to the contrary, there has been no apparent shortage of funds available to the TSRA to conduct its own meetings around the Torres Strait about the Part B Sea Claim, retention of its own external legal representatives as and when it saw fit, and funding (over the time covered by the impugned events) of a series of new lawyers for the present applicant Mr Akiba. Rather, it has been the way the TSRA has used its control over funding and resources to affect the course of the proceeding, and therefore the course of all proceedings where there are overlapping claims with the Part B Sea Claim, which has been cause for remarks by the Court.

104    I consider a hypothetical lay observer would recognise and appreciate the close connection in this proceeding between funding and resource allocation decisions made by the TSRA as the NTRB given those powers, and the ability of the applicant in the Part B Sea Claim (and more recently the three claim group member respondents) to progress the proceeding in accordance with the Court’s active case management, and with its expectations. I consider a hypothetical lay observer, informed of the area overlap between this proceeding and the other six proceedings, would also appreciate how funding and resource allocation decisions made by the TSRA affect all those other proceedings, either directly or through the failure of the Part B Sea Claim to progress even to the point of there being a newly authorised applicant.

What was said by claim group members on Thursday Island

105    An important contextual matter, in assessing any apprehension which it is alleged might be created by what has been said in my reasons or at case management hearings, is to understand not only what was in the Court’s record up to the Thursday Island case management hearing (which is set out in detail in the venue reasons), but also to appreciate what was said directly to the Court by claim group members on Thursday Island. A hypothetical lay observer can be assumed to have attended those hearings, and to have seen what unfolded in its whole context, including the sense of despair and bewilderment observable from claim group members. A hypothetical lay observer would know that the then chair of the TSRA, Mr Pedro Stephen attended the case management hearing, but did not participate in the session with claim group members, and did not explain to the Court and those present during the hearing why the TSRA had chosen to take the steps it had in relation to funding and resource allocation.

106    In correspondence from the Court ahead of the case management hearing, and then again at the start of the case management hearing on the first day, the Court had foreshadowed a session where the Court could hear directly from the claim group members. At the start of the case management hearing, I said:

Then we will spend most of this afternoon hearing from the claim group members in the Part B Sea Claim. Now, obviously that will include Mr Akiba, as the current person who constitutes the applicant for the Part B Sea Claim, if he wants to say anything.

We can continue that session into Tuesday morning if we need to. This is broadly issue 2(c) on the issues list. I’m going to come down and sit at the bar table so that I’m not so far away from everyone, and we can just have a discussion. I want to hear from as many of the Part B Sea Claim members who want to talk to me. You need to remember this is just a case management hearing. It’s not a trial. There’s no evidence. I’m here to listen to what the claim group members have to say about how the Part B Sea Claim should be managed. I’m interested in – it’s your claim, all right. It’s your claim, so I want to hear from you all about that. If there’s a problem – if we start moving into things that people don’t think we should be talking about – somebody can tell me, but basically I want to hear what you think about that claim and how it should go forward.

Now, as part of that, Registrar Fewings is going to circulate a list for people to put their names down on. That is really for the purposes of the transcript, so we can help Auscript match up who is speaking, and so I know who is speaking. Once that session is finished – and like I said, if we need to come back and do some more talking about that tomorrow morning, we can do that. No rush, okay? If you need to take a break – if some of you want to talk amongst yourselves – talk to Registrar Fewings, come back, have another discussion with us, we can do that. We’re very flexible. All right. No particular timetable. That’s why I listed it for three days – to make sure we have lots of time to get through everything.

Now, after that session is finished, and we’ve heard from everyone in the claim group that wants to say something, then we need to move to the very important issue of the need to reconstitute the applicant. That is issue 2(a) on the list. After that has been dealt with, if there are parties who want to make any other submissions about authorisation issues, and any steps that need to be taken about authorisation, I will hear that. That’s issue 2(b). Then we will move to the various positions about what matters have been decided by Finn Js findings in the Part A determination, and what matters remain to be resolved in the context of this proceeding. That is issue 2(d) on the list. It may be also 2(j). Now, I would expect that issue would take a while.

107    Aside from what was said by Mr John Abednego towards the end of the session (see below), no other objection was taken to the Court adopting the course it did.

108    The session began with my invitation to Mr Akiba to speak, acknowledging his position as the remaining individual constituting the applicant, as it was constituted for the Part A claim. This is what he said:

MR AKIBA: I want to say about my traditional islands over there, three islands. Mostly I claim for those islands: Saibai, Dauan and Boigu, and the ..... Island, the west side, ..... the elders got to walk. I ..... through Australia on that one. ..... that’s why we – three islands and he come this side – side by Boigu. I know ..... yes, but I can’t talk about that one. I only talk about my three islands.

HER HONOUR: I see. Yes. And what would you like to tell me about – about this claim going forward? How would you like to see it go forward? What’s important?

MR AKIBA: We already claim one, that’s one before my forefathers and my elders and brothers. They finish in the ground of today .... is that one. We make it that one ..... sorry, no that one. No more game, no more saying .... that’s what I like to say.

HER HONOUR: No more – sorry, I didn’t quite hear that? No more?

MR ..........: Your Honour, can I ask him the question in language?

HER HONOUR: .....

MS NONA: My dad is talking only the upper western island – only Saibai, Dauan Boigu, not the other islands.

MR AKIBA: Yeah, that’s all.

HER HONOUR: All right.

MS NONA: Yes.

HER HONOUR: Okay. So you don’t want to say anything outside the islands that you speak for; is that right?

MR AKIBA: Yes. Right.

HER HONOUR: I understand that. And is there anything else you want to say, Mr Akiba, while we’re all here together?

MR AKIBA: I think that’s all. I think, yes.

109    The following extracts give some understanding of the concerns expressed by other claim group members. Mr Ned David said:

I’m from the Kulkalgal Nation in the Torres Strait, Central Islands. And I’m here in a number of capacities as the chair of Magani Lagaugal, which is the prescribed body corporate for the native title group in the Mualgal area, Warrior Island, Yam Island, Cap Island and Zagai Island. I’m also here in my position as an executive member of Malu Lamar, prescribed body corporate, as well as chair of GBK, Gur A Baradharaw Kod Sea and Land Council.

….

Numerous times I have written to the chair of the Torres Strait Regional Authority, Pedro Stephen in the room here, to advise him this is the course of action that we should be taking. We should be working together, all of us, united, in this goal. Not once has Mr Stephen responded. As the chair of the rep body for this region, I don’t know why – he was present during that meeting when we said to him we cannot continue to operate like this. We do not know who gave Cecilia O’Brien instructions and consent to look at a number of anthropological material. We certainly didn’t. I know that for a fact. We are certainly concerned about how Bob Leo gave instructions to Max Duncan to change lawyers. We do not know anything about that.

We have no idea why so late in the game, where we’re just about to get determination, that we would refuse to continue to engage Gilkerson Legal, someone that has cultivated a relationship with us, with a number of those anthropologists that has worked with us, that have done so much work, where a lot of our elders that have given those evidence are no longer with us anymore. You can only, I think, try to imagine and appreciate the frustration and the hurt that we are feeling about this – not being – not supported by the very board that’s meant to be funding our matters, that’s meant to be supporting us, that’s meant to be helping us realise our aspirations as the traditional owners of this region and the rightful people to be leading this case.

The matter of conflict of interest between the Torres Strait Regional Authority in this entire game, the list, I believe, your Honour, would make a great plot for a John Grisham novel. I believe, you know, I hope Aaron from Torres News in this room here, he’s quoting that. This goes back to 1996, post, you know, the Act being given consent in Parliament till today when we asked that there be a separation between the Torres Strait Regional Authority and the group that holds the rep body status for native title in this region. A lot of those. A lot of those people that led that fight are gone now. So we could have a clear delineation between the statutory functions of TSRA as a funding body and the rep body that represent the interest, the genuine interest of traditional owners.

21 years later, we are still arguing about this, your Honour. I cannot believe we were so close to, I think, finalising the part B of the sea claim, and we’re stumbling. Bob, I mean no disrespect to you, but I need to speak for you. I hope you can come talk ..... before you be talk for Max. I ..... want or ..... you on your own. You and me supposed to be together for making this decision. We understand ..... got no disrespect; you still the elder ..... you still the only remaining claimant from all them ..... with that original claim. We will continue to respect you as elder ..... but we need for work together, any of them kind of decision, we have to make them together. You me. ..... the TOs ..... Torres Strait. I will finish with this, your Honour, since that meeting in March 2017 we have a plan developed. We have a process developed where we are waiting for funding from TSRA to finish this thing to complete this important part of this equation. And I tell you, your Honour, this can be fixed easily. It can be fixed this afternoon before the sunset. If people are genuine we sit in this room and we make a decision for TSRA to give us, the people, that have the right to make these decisions to do this the right way.

If you want to talk about ailan kastom this is the way to do it. You give GBK everything but native title and you let us kick some goals for our people. That can happen if you are genuine in your heart, if you are true leader for Torres Strait Islanders and Aboriginal people living in this region. That’s all, your Honour.

110    The reference to “Bob Leo” is, as I understand it, a culturally respectful way of referring to Mr Akiba.

111    Mr Maluwap Nona said:

When I find that they [ie the TSRA] are a respondent to Part B Sea Claim, that really stands out that who are they representing? Section 142A, paragraph 1A, B and C of the ASIC Act talks about ailan kastom. Ailan kastom ..... 7 August 2013, when the commercial rights were reinstated, post ..... by the High Court, it proved that for 9000 years we occupied this region and we traded in this region. So on behalf of my people, your Honour, when they talk about 100 per cent ownership, we own 44,000 square nautical miles of native title sea country, we are ..... prior to colonisation, annexation 1872, annexation 1879 that it would be forever. And yet we are not at the driving seat of ownership of that 100 per cent.

112    Ms Garagu Kanai said:

Since 2014 it was my understanding that there was only one sole survivor being elder, Mr Akiba here, and he was the only sole survivor applicant for the Torres Strait – the original Torres Strait Sea Claim. So it was decided that in order for any instructions to be given to the court which was a decision collectively by all PBC chairs and including TSRA, the former principal legal officer, Mr Peter Krebs – Mr Peter Krebs that any decisions or instructions would be done collectively as a group. So all of the chairs would meet. We would have a – it was a land and sea to do with both land and sea together because we’ve heard today that Mr Akiba has stated and he has clearly stated through his interpreter that he will only speak for his country, and he definitely cannot speak for any sovereign owners, your Honour.

Part B of the sea claim, the western overlap, goes over Mualgal, Badulgal and Kaurareg overlap. At no point was I notified of the change of legal representative. I was never approached to have a change of legal representative, and Mr Akiba certainly does not speak for that part of the country. I’m disappointed that we’ve come to this stage, that we’re sitting here when we were so close to having the determination go through the court when, as we heard from my colleague and uncle, that it was so close. All we had to was the anthropological reports. And that was put to a halt by TSRA.

113    Mr Seriako Stephen from Ugar Island said:

I think it is important that, as the chair for GBK have said, we didn’t have any problems in the past, the chairs of RNTBCs and the applicant working together. Over time, that has deteriorated since March of this year, as the chair explained to you.

…

If the court could – court could consider the reinstatement of Gilkerson Legal as the legal representative to represent the RNTBCs, and also the reinstatement of the three anthropologists to complete the anthropological work, which is important, and I refer to Dr Burton and Dr Murphy and Dr Hitchcock.

They were so close for completing that work because I travelled to Ugar and Stephens Island and to the mainland with Dr Hitchcock to review our anthropological and our genealogy task. He was so close to complete the work until the entire process was – I see it as being derailed.

114    I note that Mr Stephen also used the word “derailed”, so I cannot claim that description as an original thought.

115    Mr Robert Sagigi from Badu Island said:

Back in two thousand and – when we first started – or nineteen ninety-something – the late chair asked me to take our claimant to TSRA back then. Late chair – late ..... asked me ..... take it there. So they said they will process it and you will get your benefits quick. We still sitting. We still waiting. Now, of course, we – you know, all them process – all them things we talk ..... processes – all the – the electoral processes – elections and all that – the democracy is talk – good. Your Honour, I’m ..... a head man of my clan. Now I’m the last one in that level. Every other ones are nephews and nieces now in our clan and tribes ..... practice.

116    Mr Peo Ahmat from Badu Island said:

It has been 10 years since this court case – or this proceedings has been going for. I think one has mentioned that we’ve been crying since post-Mabo, and now we are still crying. I think in support of the – Mr David and Mr Nona, we fully support their wantings. I – and just going to ..... Leo, the – everyone mentioned that they can’t make decision for other people’s property. So therefore, I think discussion needs to be made with Badulgal people and more – and Kaurareg people, obviously. That’s all I need to speak.

117    One participant at the case management hearing expressed a contrasting view to the others who spoke. Mr John Abednego, from Mer Island, appeared to object to the Court hearing directly from claim group members. He identified himself as a Board member of the TSRA. It is appropriate to reproduce all of what Mr Abednego said:

I’m the longest serving member of TSRA, but I wish to disassociate myself from the TSRA. I’m here as a traditional owner, and I speak as a traditional owner. I want to question your process – what you’re doing here today. I don’t think it’s right – what process you’re going through here now this afternoon. I know you’re a Federal Court judge, but that don’t mean a thing to me if I don’t see transparency, equality, and the right for ..... in this process. I don’t see this this afternoon, and I want to question you on that.

It came good when – in the morning come through. The process was good. When you come here this afternoon and you sat there, the whole process changed to me. There’s no transparency. There’s nothing. There’s a one-sided talk here this afternoon. And I sit at the back there. I’m gagged because I know my chair – TSRA there – is sitting next to me, so I follow protocol but I’m here now, sitting here as a traditional owner, endorsed by the Council of Elders from Murray Island, from Mer. I’m an endorsed – Council of Elder. Not PBC. PBC is a government instrument. Not TSRA ..... government instrument. As a dinky-di TSI that sits at Murray Island. That’s me. I speak here today.

And I look at the process – what you all going through today. You’re not being fair. And I tell you, Judge, you’re not being fair, and I will register this one and ..... and I hope it’s recorded because I want to take this to the Attorney-General – about this part of the process. You’re not being fair.

HER HONOUR: Would you like to explain to me what’s not fair?

MR ABEDNEGO: Well, I can’t talk. I can’t talk because there’s other things I want to talk and I’m gagged by my – by my protocol. I’m a long-serving TSRA member, 30 years, and 20 years in Torres Shire Council as a councillor. I know a little bit about protocols, and I just want to register this here. I want to talk to the Attorney-General about that, and this – from this day on this process is a farce if you’re sitting on the chair there. I tell you now that’s a farce. I understand a little bit about court. I understand a little bit, and this is a farce. It was good when you were up there. When you come down here, it changed. The whole thing changed. It was on a one-sided door. Inside the court, normal procedure, two people talk. There’s two information come. At magistrate level, there’s defendant and the prosecution. That’s normal thing. Here now, inside, it’s one-sided. I can’t talk. When I talk as a traditional owner, my place, where I come from, as a councillor/elder, not as a person sitting inside of a government instrument – see that grass root. Thank you.

HER HONOUR: Thank you. Thank you, Mr Abednego. Now, is there anyone else?

118    While Mr Abednego was critical of the way I elected to conduct this session, it appears he was also informing the Court he was not permitted to talk about certain matters concerning the TSRA that he wanted to talk about in the context of the proceeding.

119    I should note that when Mr Abednego speaks of “you come down here”, he refers to the fact that when holding discussions with claim group members I left the bench and sat on one side of the bar table, with claim group members able to sit on the other side, so that what they said could be recorded.

120    Many of the observations, written or oral, impugned by the TSRA reflect my agreement with some of the sentiments expressed by claim group members, and in the Court’s record, by the applicant’s previous legal representatives, who were working closely with the PBC chairs for reasons I have set out in the transcript reasons. At the Thursday Island case management hearing, no other party supported, or sought to justify, the TSRA’s role and conduct. All other parties were seeking to move matters forward co-operatively. I have outlined these matters in the transcript reasons and the s 66B steps reasons. A hypothetical lay observer would understand this context and appreciate why, in terms of case managing the proceeding towards a more timely resolution, the Court chose to make it clear to the TSRA that its approach to funding and resource allocation, and the effects those matters were having on the proceeding, were unacceptable. I consider the hypothetical lay observer would not apprehend from these observations, or the forcefulness of the language used, that if I were called on to rule on any question of law or fact during case management, my criticism of the TSRA’s approach to its funding and resource allocation function might cause me to deviate from deciding any such question impartially.

The matters relied on by the TSRA, and whether there is the requisite logical connection

121    I have summarised the events, or factors, relied on by the TSRA at [27] above. I agree with, and have drawn on, the submissions the Kaurareg people, the three claim group member respondents and the Commonwealth made about those events or factors.

122    In summary, many of the matters identified by the TSRA are taken out of context, are incomplete, or are insufficiently identified in terms of what the apprehended partiality is said to be. Most therefore do not satisfy the limb of the test, which requires precise identification of the matters said to give rise to the apprehension. It did appear to be that, in many instances, the way the TSRA put the factors or events in this application sought to have me justify further why I had done what I had done, or why I had said what I had said. An application such as this cannot be turned into an ongoing argument between the Court and a party about how a proceeding should be managed, nor an opportunity for a party, for its own purposes, to seek to have the Court justify what has been done and said, or to alter what has been said, outside reasons already published.

123    Further, I reject the submission that there is any logical connection between the matters identified by the TSRA and any feared deviation from impartiality in my future decision-making, through making procedural orders or directions, about how this matter will be case managed. There is no logical connection because first, it is difficult to understand, going forward, what case management issues might arise that would provide for the occasion for any apprehended partiality against the TSRA, in its capacity as a party. As a party – unlike the State, or the Kaurareg respondents for example – it is difficult to see what role it has to play in the substantive proceeding itself. I exempt from this finding the question of costs orders, which I accept would provide such an occasion. I refer to costs at [172]-[175] where I deal with the TSRA’s submissions about an order I made concerning reservation of costs. At a more general level, I consider a hypothetical lay observer would be aware that on the only occasion where I had been asked to order costs against the TSRA (by the three claim group member respondents) I refused to do so, because I was not satisfied the legal and factual conditions for such an order existed. The requisite apprehension would not arise.

124    Second, the evidence shows, and the TSRA accepts, that when it did seek an exercise of judicial power in a case management context where what it sought was opposed by other parties, I decided that matter in a way that did not give rise to any apprehension of bias. This was the change of venue application. In oral submissions on this application, senior counsel for the TSRA submitted the dismissal of the change of venue application was the appropriate decision in the circumstances.

125    Finally, the TSRA relied in several of its contentions on the fact that some of the issues I had raised had not been raised by the parties. That fact does not advance the TSRA’s submissions. In IOOF at [232], Doyle CJ states:

The fact that the judge raised the concerns he did cannot, of itself, support a claim that the judge is biased against the relevant party, or has an adverse attitude to the party's legal representatives that might infect the judge’s approach to the party’s case. It might be the duty of the judge to raise these issues.

126    I turn to consider each matter or factor identified by the TSRA.

The Court’s list of issues

127    Coming newly to this proceeding after it had been on foot for so long, there was a great deal to become familiar with in a short period of time. The list of issues prepared in advance of the case management hearing was drawn from the Court’s record, and various matters raised on that record. At this stage, Gilkerson Legal were acting for the applicant, and were attempting to manage the difficulties concerning Mr Akiba’s position as the applicant in a way the previous Principal Legal Officer at the TSRA, Mr Krebs, had not only approved but participated in. However, after Mr Krebs left the TSRA, the Court’s record revealed that the working relationship deteriorated between Gilkerson Legal, and his replacement Dr O’Brien.

128    As the Commonwealth submits, the applicant (then represented by Gilkerson Legal) had filed two reports in the Court about apprehended difficulties complying with the then agreed timetable because:

(1)    anthropological work, which had been underway for a long period of time, had been “paused” by the TSRA;

(2)    the TSRA was not providing sufficient funding for the applicant to obtain legal advice; for the applicant’s solicitors to hold face to face meetings with claim group members, and nor for the applicant to progress the proceeding or hold an authorisation meeting; and

(3)    the TSRA was holding what it described as “information sessions” with claim group members on each community island and on the Queensland mainland, without consulting the solicitors for the applicant and in the face of contended conflicts of interest in it doing so.

129    It is apparent that the need for an authorisation meeting and a s 66B application was well understood by those representing Mr Akiba at this time. A hypothetical lay observer would have understood, from the reports to the Court, that the applicant, the other affected native title parties such as the Kaurareg, the State and the Commonwealth, and the various claim groups themselves, were all concerned to get this process underway once the anthropology necessary to identify Part B Sea Claim group members and apical ancestors was complete. A hypothetical lay observer would have understood at this time that the conduct of the TSRA in its attitude to funding and resource allocation did not appear to be supportive of this objective, resulting in the complaints to the Court.

130    The Court notified the parties of the issues arising from that material, and the complaints made, so that the parties were given an opportunity to prepare for and to address those issues at the upcoming case management hearing. The list (including the impugned items) was prefaced with the words:

“The matters which her Honour proposes to work through with the parties”.

131    When that list was distributed during an initial case management hearing, all parties were asked, including the then senior counsel for the TSRA, whether they had any submissions to make. All replied that they did not: see the venue reasons at [47]. The role of the TSRA in the proceedings was, plainly, on the list because of the material already on the Court file (from other parties), which was critical of its role.

132    The Court’s stated expectations about funding to be available for claim group members to attend the Thursday Island case management hearing was entirely unremarkable. It is notorious that claim group members in remote locations depend on such funding to attend meetings and Court hearings. Issues about alleged difficulties concerning provision of funding to claim group members were already on the Court’s record. The whole point of the Court conducting the hearing on Thursday Island was to make it accessible for at least a reasonable number of claim group members, especially those who had a representative role amongst their island groups. That was because the unrepresentativeness of Mr Akiba for the Part B Sea Claim area was already acknowledged on the Court’s record. The hearing was resource intensive for the Court, and the Court was entitled to be assured, as part of the preparation, its objectives would be met. As it turned out, despite what the Court said, there were difficulties in claim group members securing funding from the TSRA to attend the case management hearing. At the case management hearing Mr David said:

So I want to say that, your Honour, you’re most welcome. You made the right decision to host it here on TI, and I think it allowed all of us, even those members of my group that had to pay our own way to come here. I know of two people in this room that I had to pay out of my own pocket for them to come here for these next three days – something that I find absolutely ridiculous, but I think it’s another matter to be prosecuted in – you know, further on.

133    Ms Kanai said:

We were informed by the Native Title Office [of the TSRA] when we were called in to come here that the PBC chairs had to actually call in, and that was a direction given by Ms O’Brien that they would only fly in those representatives who called. This is not all of the PBC chairs here because the others weren’t paid for. We’ve come here with no travel allowance, no sitting fees, and I’m sure everyone else here is getting paid those things. And they are our NTRB. They represent us.

134    The Court made no orders against the TSRA about funding claim group members to attend the Thursday Island case management hearing. The TSRA’s decisions about funding and resources took effect, apparently with the consequences described by Mr David and Ms Kanai. The TSRA did not seek to contradict what they told the Court.

The Court’s letter to the parties dated 2 November 2017

135    This letter was sent to all parties some two weeks ahead of the Thursday Island case management hearing. By this stage, as I recount in the venue reasons, there was a basis for the Court to be concerned about the TSRA’s approach to the case management hearing, and its approach to funding and resource allocation for this claim. The letter foreshadowed that the Department of Prime Minister and Cabinet would be given copies of material:

Her Honour proposes to supply a copy of the transcript of the Thursday Island case management hearing, and any reasons for judgment on any matter her Honour is required to determine, to the Secretary at the Commonwealth Department of the Prime Minister and Cabinet (PM&C).

Her Honour has also instructed Registrar Stride (given National Registrar Fewings is on leave) to send a copy of this correspondence, together with the Directions and Issues List, to the Secretary at PM&C. If any active party wishes to supply further or other relevant material to PM&C, that will be a matter for them.

136    The TSRA does not identify any consequence to it, by way of exercise of judicial power in the proceeding (past or future) which is connected to the contents of the letter. Again, this occurred in a context where the Court was being told that the TSRA’s funding and resource allocation functions were impacting on the case management objectives and processes set by the Court. A hypothetical lay observer would appreciate that the Court was sufficiently concerned that it considered the Department responsible for oversight of the TSRA should be aware of what was happening in this very old and delayed claim. If anything, this was an acknowledgment the Court itself was not in a position to do anything about the complaints concerning the TSRA’s conduct in this regard. There was, as the Kaurareg parties submitted, ample time for the TSRA to object to the course proposed, but it did not do so. What, if anything, the TSRA itself, its officers or Board members, communicated to anyone within PM&C is unknown to the Court.

The venue reasons

137    The venue reasons include criticism of the TSRA mixing its role as a funder, as a respondent and as a potential source of legal representation for Mr Akiba on the basis of the information on the Court’s record at that time. The venue reasons state at [148]:

In other words, the TSRA proposes to be both an active respondent to the native title claim, through external lawyers and to be, by its employee solicitor, the legal representative for the applicant. The actual, as well as apprehended, conflict of interest is obvious.

138    The TSRA placed some considerable emphasis on this passage in its submissions. I do not accept this statement was anything approaching a finding, let alone a conclusive one. It was made in the context of what was to be discussed at the case management hearing, and in the context (set out in the venue reasons) of changes by Mr Akiba as the applicant in his choice of legal representation. It was made before the TSRA had disclosed any arrangements it might have in place to manage its new role as an active respondent, while one of its employee solicitors became the legal representative for the applicant. This was not of course the situation that had occurred in the Part A proceeding where the TSRA, although nominally a respondent, took no part in the proceeding and acted as the legal representative for the applicant. This statement was made at a time when the TSRA’s application to change the venue of the case management hearing had all the attendant difficulties I set out in the venue reasons. The statement was a signpost of the Court’s concerns, no more.

139    A hypothetical lay observer would understand the context of these and other remarks from what is recited in the venue reasons. At [153], the venue reasons state the conflict issues identified could be discussed and hopefully resolved, at the case management hearing. At [165] under the heading “post-script” the venue reasons state that “potential conflicts to which I have referred in these reasons will remain an issue to be canvassed at the Thursday Island case management hearing”.

140    It seemed the TSRA reconsidered its position, which resulted in Mr Besley informing the Court on 13 November 2017 the TSRA would withdraw as a respondent to the proceeding: see venue reasons at [161]-[162]. The TSRA then changed this position at the Thursday Island case management hearing.

141    Also seemingly accepting that there was a perceived conflict of interest, two days after the venue reasons were delivered the TSRA filed and served an affidavit by Dr O’Brien, outlining a “Chinese Wall” proposal for the future conduct of the TSRA’s role in this proceeding, especially given one of its internal solicitors was (at that stage) to become the solicitor on the record for Mr Akiba.

142    This is the exchange which occurred at the Thursday Island case management hearing about Dr O’Brien’s “Chinese Wall” affidavit:

MR BICK: Ms O’Brien’s affidavit is intended to attempt to deal with concerns that the court has expressed in your Honour’s judgment, particularly the last few pages of your Honour’s judgment, in relation to what your Honour, we think, with respect, mistakenly perceived to be a conflict of interest issue. Your Honour would have been right in perceiving a potential for a conflict of interest, which, of course, may be concerning, and because we acknowledge there is a potential for a conflict of interest, it was considered appropriate that your Honour be informed as to how that was being dealt with within the TSRA so that your Honour could see that there is no conflict of interest, and - - -

HER HONOUR: All right. Well - - -

MR BICK: - - - that’s the purpose of the long affidavit.

HER HONOUR: All right. Does anyone else have an objection to me receiving that affidavit from Ms O’Brien?

MS KIDSON: No, we don’t object. We’re not prejudiced by it, your Honour.

HER HONOUR: No? No?

MR GORE: No, your Honour.

HER HONOUR: No? No? All right. Well, that affidavit – you will have leave to file that affidavit.

MR BICK: Thank you, your Honour.

HER HONOUR: And that will be received as part of the evidence adduced on the case management hearing.

MR BICK: Thank you, your Honour.

143    Far from any objection to what had been said about a conflict of interest, senior counsel appeared to agree with the Court having raised it, and suggested that Dr O’Brien’s affidavit addressed it. The TSRA does not identify any further apprehended consequence, by way of decisions, orders or directions that might be made, because of what appears in the venue reasons.

Thursday Island case management hearing on 20-22 November 2017

144    The matters identified by the TSRA in its submissions about the Thursday Island case management hearing lack the requisite precision to which the Full Court in ALA15 referred.

145    It is unclear whether the TSRA intends to complain about the Court hearing directly from claim group members, but if it does, that had always been a key purpose of the Thursday Island case management hearing, as apparent in the proposed agenda circulated. The need for a newly authorised applicant, and an application under s 66B, underscored why it was necessary to hear from the claim group members directly, and why it was necessary, at least temporarily, to give some of them a voice (as chosen by those present) in the organisation of a new authorisation process, and one recognised in a formal way by the Court so their participation was regularised, and governed by Court orders.

146    The language of which the TSRA complains was forceful language, but commensurate in my opinion with the circumstances facing the Court, and the Court’s concern that the willingness of all parties, other than the TSRA, to agree on a course to move towards authorisation and a s 66B application could be frustrated by the TSRA’s approach to funding and resource allocation. No objection was taken to any of the Court’s remarks at the time, and no submission was made that the Court should withdraw or alter any of those observations. I am confident a hypothetical lay observer would also have understood the context of my remarks, and would not apprehend any partiality in relation to the native title claim or future case management, but rather a sense of frustration about the apparent newly imposed impediments to the claim progressing. The hypothetical lay observer might well have apprehended the TSRA may come in for further criticism if it continued the same approach in the proceeding, but that is quite a different matter.

147    What occurred at the Thursday Island case management hearing, concerning Mr Akiba’s apparently sudden change of position by late morning on the last day of the case management hearing is recounted in the transcript reasons and I do not propose to revisit that matter. That change came after he was visited by one or more members of the TSRA Board (and at least one who was variously identified by Mr Akiba as “the deputy chair” and “the Stephen Island boy” and “a young boy”), and was in stark contrast to the position Mr Akiba had told the Court he held at the end of the second day. His position to the Court at the end of the second day was a position which arose after lengthy discussion amongst claim group members and Mr Akiba when the Court was not in session. The Court had adjourned specifically to allow this discussion to occur. This is but one of many examples in the TSRA submissions which appear to invite the Court to embark on further, and different, justifications for courses it has decided to take, and for the way it has chosen to express its reasons. That invitation should be resisted.

The transcript reasons

148    Paragraph [12] of the transcript reasons simply observes that the question of potential conflicts of interest of the TSRA in this proceeding was never finally dealt with at the case management hearing. That is accurate. When properly informed of the whole context, a hypothetical lay observer would understand why the Court has continued to have those concerns. To put the TSRA on notice that the Court continues to have concerns about potential conflicts of interest is preferable to the Court keeping those concerns privately to itself, especially in a case management context.

149    Otherwise, the TSRA submissions seek to have the Court go behind the reasons it has already given. A disqualification application should not be used as an opportunity to have the Court revisit and re-express reasons already given. They speak for themselves. I am satisfied a hypothetical lay observer reading those reasons fairly and fully, having attended the case management hearing and having seen what occurred with Mr Akiba’s position over the last two days of the case management hearing, would understand why the Court said what it did.

The 18 December 2017 case management hearing

150    It was clear why the Court needed to address the question of funding by convening the December 2017 case management hearing, and by dealing with that matter during the hearing and in its reasons. The case management hearing was called because of the complaints the Court was receiving from the new legal representatives for Mr Akiba (Dillon Bowers) and the legal representatives for the three claim group member respondents, concerning the TSRA’s slowness in decision-making and the inadequacy of funding decisions when made. Those complaints were being made because those parties had responsibilities under the Court’s orders to progress the authorisation process. They were attempting to work co-operatively to implement the plan agreed by all except the TSRA on Thursday Island, but complained they were not being funded adequately to do so.

151    There was material before the Court from the applicant and the three claim group member respondents, already indicating why the s 66B orders made on Thursday Island would be difficult to comply with, because (it was contended) of the TSRA’s approach to funding. Counsel for the three claim group member respondents submitted the Court should give the TSRA a direction about providing adequate funding. Senior counsel for the applicant also made submissions about the difficulties being encountered. Counsel for the Commonwealth indicated that funding was crucial to the process – a fact which could hardly be disputed in the circumstances. Inadequate funding, or delays in making funding available, could have jeopardised the whole process for which the Court’s orders provided.

152    I consider the TSRA was well aware of this. During submissions, Mr Besley for the TSRA disclosed his awareness of the critical role the TSRA’s funding and resource allocation decisions had in the proceeding. He was also aware of some continued difficulties in the roles being played by his firm, and by the TSRA:

HER HONOUR: Yes. Yes. Thank you very much, Mr Gore. Now, Mr Besley, what would you like to say? Now, I understand that it’s – you’re in a difficult position, if I might say so, Mr Besley and I think – as you have recognised in your affidavit, because you and your firm are the solicitors on the record for the TSRA in its capacity as a respondent to this proceeding, and so far as I’m aware, you don’t represent the TSRA in its capacity as a representative body. Is that right?

MR BESLEY: That is correct, your Honour, and the word “invidious” has already been used once today, and you’ve used the word “difficult” which was the word that I was going to use to try and describe the situation I find myself personally in, in our firm. We have not been involved, or have held instructions that directed our firm to take any actions in relation to steps taken by the TSRA as a representative body since the case management hearing. There was the need to provide transcripts and to provide a timely response to Mr Gilkerson, which we undertook in the absence of the person from the TSRA who was corresponding with Mr Gilkerson over those matters. Other than that, your statement as to our instructions is correct.

HER HONOUR: Right. Well, I did note in the evidence, Mr Besley, that there was at least that one occasion, and perhaps more where you and your firm seemed to have been involved in a way that would not be appropriate, but I recognise your own discomfort, if I might put it that way, with that.

MR BESLEY: Thank you, our Honour. It came to my attention that the transcripts had not been provided and needed to be provided. I did that as soon as we could. There also was the need for a clear statement of the client’s request for certain materials and information in the form of a costs agreement and other things that appeared to us to not have been communicated. The person who’s responsibility it had been given to, or they had been given, was actually on Murray Island on that day, and that was the reason why that communication was made. I should also note that it is apparent from the Affidavit material that we did give advice which was sought from us in relation to what we understand to be steps that are required in a generic authorisation process, not necessarily one which is tailored to the circumstances of this matter, and that is also referred to in my affidavit.

HER HONOUR: Well, representing, as you do, your client in its capacity as a respondent to this proceeding, what do you say to the court about the steps outlined by Mr Barlow and Ms Longbottom on behalf of their clients?

MR BESLEY: I don’t have instructions to cavil with the steps that they’ve set out, or to object to them. Our client’s role as a respondent is, as you’ve pointed out, very limited, and I would - - -

HER HONOUR: Well, that was my characterisation, Mr Besley, of what one would expect your client’s role to be. It’s not, in fact, what has happened in this proceeding. Certainly not since I’ve been involved in it. Your client has led the way in ways which, as you well know, I have not been entirely happy with.

MR BESLEY: For obvious reasons, your Honour, my comments in relation to those things need to be confined and circumscribed. I’ve certainly noted those comments. I’ve also given advice to our client as to its ongoing status as a respondent. However, the TSRA remains a respondent to the proceedings.

HER HONOUR: All right.

MR BESLEY: And so at the moment, where we’re up to in terms of the steps that are proposed, is that there are no objections from the TSRA to the steps proposed. Your Honour, I should be clear that your foreshadowing of making orders for certain steps to be taken by certain times, I think I would be in a position to advise that our clients would not oppose those orders. I also would accept that it is necessary for the indigenous respondents and the applicant to have clarity as to whether or not they’re sufficiently funded to take those steps for our client to make a clear statement as to their position in that regard within a short period of time. I’m reluctant to offer a period of time having counsel recently do so in a case management conference, which was not fulfilled by our client, so I can’t take it any further than that.

HER HONOUR: Well, I certainly wouldn’t want you to end up in that position, Mr Besley, so I understand that.

MR BESLEY: Thank you, your Honour.

HER HONOUR: All right.

MR BESLEY: If I may, your Honour - - -

HER HONOUR: Yes.

MR BESLEY: - - - it does appear that the characterisation of Mr Barlow, or I think it might have been Ms Longbottom, that an offer, as you put it, has been made to legal representatives to whom the offer was made have made their position very clear on that. As it were, the ball was in the court of TSRA as a representative body who has been asked to make funding decisions in response to requests for facilitation and assistance under its rep body functions. If a timeframe is given by the court by way of a direction for a decision to be made in that regard, that may sharpen the minds of the decision-makers, as you referred to earlier, who, I might this opportunity to say, are not in the court room, but will be provided a transcript once available.

HER HONOUR: Well, that’s helpful to know, Mr Besley. Thank you. Now, is there anything else you want to say about these proposed orders.

MR BESLEY: No, your Honour.

153    Passages such as these indicate the Court was raising difficulties it saw, most of which were frankly and properly recognised by Mr Besley. These kinds of robust exchanges had become commonplace, and a hypothetical lay observer would be aware of all these exchanges, not just the ones to which the TSRA has pointed in support of its application. All of the exchanges (those impugned by the TSRA, and those not) are emblematic of a drawn out and difficult case management process, largely due to the TSRA’s approach to its funding and resource allocation decision-making. These exchanges do not give rise to any apprehension of partiality against the TSRA in its role as a party, simply frustration at its performance of its funding and resource allocation functions.

154    I am satisfied the hypothetical lay observer would readily understand the context in which the case management hearing was called, and why it was necessary to explain, through the Court’s reasons, what had happened after the Thursday Island case management hearing about funding (or lack thereof).

155    Mr Besley on behalf of the TSRA came prepared for, and made, submissions on why no costs orders should be made, after the Court raised the matter. It was raised in this way (immediately after the extract at [152] above]:

HER HONOUR: All right. Well, there’s one other proposed order that I’m contemplating that I want to hear you about, and I’m happy to hear anyone else that has any submissions they want to make. The only reason that we are here today, with all the costs that are being incurred in doing so, is because of the TSRAs recalcitrance, and I use that word deliberately, in facilitating compliance with the court’s orders made on Thursday Island, by which, in my view, it was patently obvious it was intended that the applicant and the three indigenous respondents have carriage of the carrying out of those orders. Now, if your client had been more cooperative at the case management conference before Registrar Fewings last week.

Or if your client had not delayed, as it has, in making funding decisions at all about Ms Longbottom’s clients and satisfactorily about Mr Barlow’s clients, we would not be here. I would not be contemplating this very unusual prescriptive process and everyone would be doing what I thought was going to happen when we left Thursday Island, which is working cooperatively towards getting this matter back on track. And in those circumstances, it seems to me it might be appropriate to make a costs order against your client in relation to this case management hearing. Now, what would you like to say about that?

156    The reference to a case management conference before Registrar Fewings should be noted. Once the complaints of the applicant and the three claim group member respondents about funding and delay in funding decisions were made to the Court, Registrar Fewings convened a case management conference. The Registrar informed the Court she was unable to secure any resolution at this conference. In other words, the Court did not move directly to convening another hearing. It did so only as a last resort, shortly before the end of the year, when it was apparent that there was no progress at all towards the authorisation process and any s 66B application.

157    Mr Besley then made quite detailed submissions, including by reference to authority, about why no costs orders should be made. He commenced by saying:

Your Honour, I did anticipate that you might make an order or propose to make an order in that regard.

158    Mr Besley was not, therefore, caught by surprise at all but had anticipated himself that the circumstances might mean the question of costs was raised. Indeed, it had been raised in correspondence from Mr Gilkerson.

159    As the Kaurareg people noted in their submissions on this interlocutory application, it was only during those detailed submissions that it was revealed, for the first time, that the TSRA had retained senior counsel to advise on steps toward a compliant authorisation process for the Part B Sea Claim, at the same time as representing to the applicant and the three claim group member respondents that limited funding was available to actually undertake the authorisation process. The TSRA had not, for example, proactively suggested to the applicant and the three claim group member respondents that it would, with their cooperation and input, and jointly, obtain such advice. Rather, unilaterally, and without informing those supposed to have the conduct of the s 66B process, it sought its own external legal advice. This is the body which has contended to the Court it is acting in this proceeding in its capacity as a NTRB, to advance the interests of the claim group members who contend they are the native title holders for the Part B Sea Claim.

160    This revelation came about during submissions by Mr Besley about what costs the TSRA delegate (Mr Farrell) had allowed for in correspondence to the applicant and the three claim group member respondents:

HER HONOUR: No, no. I think we’re at cross purposes. You submitted, and appeared to accept, that it would be necessary to get advice, the claim group to get advice, the applicant and the three indigenous respondents, on the appropriate process to be undertaken under section 251B and my question was where is that allowed for in Mr Farrell’s letter of 15 December?

MR BESLEY: It’s not allowed for.

HER HONOUR: It’s not.

MR BESLEY: It’s not allowed for in his letter, your Honour.

HER HONOUR: But it’s essential, isn’t it? This whole process could go wrong if that advice isn’t obtained.

MR BESLEY: It is, your Honour. I had intended not to proffer this, but I am aware that our client has obtained advice from senior counsel as to what a compliant process would be.

161    When asked why this occurred, Mr Besley simply contended that “presumably” the TSRA was acting in its representative capacity, but that he did not have instructions about whether the TSRA was acting on a request from claim group members. Obviously, the TSRA was not acting on a request from Mr Akiba and the three claim group member respondents, who were unaware of the TSRA’s conduct, until Mr Besley revealed it. The properly informed hypothetical lay observer would, I consider, understand the extraordinary nature of this step by the TSRA, at the time it was taken. I note sometime after the obtaining of this advice became an issue, the TSRA informed the Court it had passed on the advice of senior counsel to the other parties, but this is very much after the event.

162    The spectre of the TSRA’s “representative capacity” has been used again and again before me to justify the conduct of the TSRA, without ever engaging with the actual terms of the Native Title Act in s 203B, and s 203BA, and in particular the terms of s 203BB(2) that a NTRB can only perform its representation and facilitation function upon request.

163    I consider the hypothetical lay observer would understand why the TSRA was repeatedly pressed, and then subject to criticism, about its conduct, when it refused to engage with any particularity, or accuracy, about precisely what aspect of its functions under the Native Title Act it was performing by being an active respondent in this proceeding, and in what capacity it unilaterally sought the new legal advice it did.

164    I also consider the hypothetical lay observer would be as perplexed as I have been as to why the TSRA has adopted an approach that appears to be so adversarial to the claim group members.

165    The hypothetical lay observer would, properly informed, understand the context for my expressions of frustration and criticism, and would not apprehend that it might affect how, in future case management, I might decide any contested issue in the proceeding where the TSRA had an interest to advance, bearing in mind as I have said time and again over the last seven months that the performance of those funding and resource allocation functions by the TSRA are not matters about which the Court has proposed to give any directions or make any orders.

166    The Court was not engaged in any exercise of judicial power about how the TSRA was spending public funds, nor was it ever likely to be in this proceeding. The hypothetical lay observer would appreciate this, especially if the whole of the context of various exchanges during the case management hearing was presented to such an observer. For example, there was the following exchange between the Court, senior counsel for the applicant and counsel for the three claim group member respondents:

MR BARLOW: Your Honour probably can’t direct it, but could I say, from the applicant’s point of view and, I believe, that of the clients of Ms Longbottom, it would need to be global sum with potential for amendment as matters go on, rather than the individual itemised sums that are available here, but I know your Honour can’t direct that.

HER HONOUR: Well, I can’t, but it should be plain to everybody that this process will be incremental, and I’m not aware that, in the past, funding has been capped before steps have been taken, in relation to the funding of external providers in this matter. I understand that would be the opposite of what has happened in the past, but perhaps either you or Ms Longbottom can enlighten me about that. Well, probably not you, Mr Barlow, because you’ve just come in.

MR BARLOW: Yes. That’s right, your Honour.

HER HONOUR: But, if you don’t mind, I might go back to Ms Longbottom on that. Sorry to make you both stand up and sit down all the time.

MR BARLOW: Thank you, your Honour.

MS LONGBOTTOM: Your Honour, your hunch is correct. I’m instructed by Mr Gilkerson that it is the opposite of what has happened previously.

HER HONOUR: Yes. So can you tell me a little bit more about what the arrangement has been?

MS LONGBOTTOM: If your Honour can give me a moment just to take some instructions from Mr Gilkerson.

HER HONOUR: Yes.

MS LONGBOTTOM: Your Honour, I’m instructed by Mr Gilkerson that previously, what has happened is that, in effect, budgets have been provided to the TSRA, with respect to stages. Not in relation to professional costs, per se, but in relation to outlays. And so they are budgets that the ..... have revisited as those stages are completed.

HER HONOUR: Yes. Thank you. Well, that is probably not something that I have any power to direct the TSRA about.

MS LONGBOTTOM: Yes.

HER HONOUR: But no doubt those responsible for these decisions within the TSRA are either listening or will have this transcript provided to them, and they can make up their own minds about their responsibilities as a funding provider. Ms Longbottom, anything else you want to say about the timetable?

The s 66B steps reasons

167    The performance of the TSRA’s funding and resource allocation role has always been at the centre of the matters the Court has been asked to address, by the parties and in particular by the applicant and the three claim group member respondents before, and especially after, the Thursday Island case management hearing. As I have noted, a costs order was sought against the TSRA at the 18 December 2017 case management hearing, and that needed to be dealt with. By this time, the Court had considerable factual background about the TSRA’s approach and participation in the case management of this proceeding since early to mid-2017. Counsel for the three claim group member respondents expressly submitted the TSRA had created obstacles to the consideration of their funding application.

168    The hypothetical lay observer would appreciate, in my opinion, the need for completeness in explaining the context for the course the Court decided to take. What was set out in the s 66B steps reasons was not a “review” as the TSRA contended: it was a narrative, as part of the Court explaining the orders it proposed to make.

169    The absence of explanations by or on behalf of the Board of the TSRA – which, it is to be supposed, is ultimately responsible for the conduct of the TSRA in this proceeding – was notable. Where the conduct of the TSRA appeared – as it systemically did – to be contrary to, or to undermine, the wishes and objectives of the claim group members, and was said by other parties to be affecting the implementation of the Court’s orders, it is an understatement to say an explanation was called for.

170    As for some of the language used, such as my description of the TSRA’s conduct as “derailing” the Part B Sea Claim, it is the case that since the start of my time case managing this proceeding, it has been clear from the material filed with the Court that negotiations towards a consensual resolution of the sea claim in what is called the “Western Overlap” were, by the end of 2016, well advanced. This had been the case for several years. The claim group members had referred to this at the Thursday Island case management hearing, as the extracts above demonstrate. Senior counsel for the TSRA at the Thursday Island case management hearing also acknowledged the previous situation with the Western Overlap. I consider the hypothetical lay observer, properly informed about the course of the proceeding, and the change in direction in the proceeding in early 2017 caused by the TSRA’s funding and resource allocation decisions, would not apprehend there might be any partiality on my part in deciding any contested issue of fact or law that might arise during case management but rather would appreciate that the term “derailing” was a forceful, but apposite description of the TSRA’s approach to its funding and resource allocation decision-making in the Part B Sea Claim proceeding. It was, as I have noted above, also the description used by one of the claim group members.

Paragraph 13 of the orders made on 19 December 2017

171    The TSRA did not submit paragraph 13 of the Court’s orders was outside power. As the State submitted, the Full Court has held that although s 85A of the Native Title Act was intended to remove the presumption that costs would follow the event unless cause was shown for a different order, the Court’s broad discretion in s 43 of the Federal Court of Australia Act remains, and there is no precondition of “unreasonableness” to be met before a costs order can be made: see De Rose v South Australia (No 2) [2005] FCAFC 137 at [8]-[10] (Wilcox, Sackville and Merkel JJ). Further, this was a ruling from which the TSRA was at liberty to seek leave to appeal.

172    There is, and was, no doubt that the only reason for the 18 December 2017 case management hearing was the complaints the Court had received about the conduct of the TSRA in performing its funding and resource allocation function. The complaints were not complaints in a vacuum. They were complaints raised because the applicant and three claim group member respondents had obligations under the Court’s orders, which they considered they could not fulfil because of the TSRA’s conduct in relation to funding and resource allocation.

173    Despite this, the Court refused to make the costs order sought by the three claim group member respondents. It then reserved the possibility of future applications, or a decision of the Court’s own motion (which is within power), depending on what evidence might emerge about why the TSRA was engaging in that course of conduct.

174    I consider a hypothetical lay observer would appreciate this context and would not apprehend that the reservation of costs might have been because of any inappropriate partiality against the TSRA. Rather, an observer would understand that because the conduct of the TSRA had triggered the need for the 18 December 2017 case management hearing, the Court considered there was a basis in the material to wait and see what might emerge about why the TSRA was making funding and resource allocation decisions which were impacting so adversely on the parties’ attempts to comply with the Court’s orders.

175    Further, I agree with the submissions by the three claim group member respondents that the TSRA’s contentions on this matter appear to be that the reservation of costs was made for an improper purpose. Although there was an application for leave to appeal against some orders made on 19 December 2017, there was no application for leave to appeal against the order reserving costs, where an “improper purpose” argument could have been made. That may well be because it is not an order with any tangible effect. I consider the hypothetical lay observer would understand that, and would look at what was done, reading all of the reasons, including the statement in the reasons at [174] that:

…whether… evidence emerges that provides grounds for third party costs orders, will be a matter for determination at that time. Alternatively, there may be an innocent and simple explanation for the behaviour of individuals within the TSRA who are making these decisions.

The only contested application

176    Finally, the one contested application by the TSRA that I have determined in case management of this proceeding – the TSRA’s application for a change of venue for the case management hearing from Thursday Island to Mer Island – is not a decision that senior counsel identified as any part of the conduct giving rise to an apprehension of bias, and indeed senior counsel positively submitted the decision was appropriate.

177    Some of the language and observations in the venue reasons are matters upon which the TSRA does rely in this application. Yet the core subject matter of those reasons – a procedural decision on the TSRA’s application to move the case management hearing to Mer Island – is not identified as giving rise to any apprehension of bias.

178    This context would be appreciated by the hypothetical lay observer: particular turns of phrase, or remarks, in a long set of reasons where the exercise of power is not alleged to be affected by any apprehension of bias, would be seen, in context, as forceful language and disapproval, but nothing more.

The TSRA’s application in relation to proceedings other than the Part B Sea Claim

179    This application is made in QUD6040/2001, but orders are sought in relation to six other proceedings. Essentially, the TSRA seeks to preclude me from having any role in any claim that touches on the geographical region of the Torres Strait, even though the ground of its application is submitted to be an apprehension of bias in relation to the TSRA as a party to QUD6040/2001. The TSRA’s proposed orders thus extend to two claims (the Northern Peninsula Claim and the North Eastern Peninsula Sea Claim) for which it is not even the NTRB.

180    I note that both the Badu people and the Kaurareg people, as the people affected in these other proceedings by the TSRA’s application, have made submissions on the TSRA’s application.

181    The core submissions of the Badu people are as follows:

The most recent orders in this proceeding were made on 27 November 2017 and reflect the orders proposed to be made with the consent of all the parties to the proceeding, when the Court sat on Thursday Island on Monday 20 November 2017. Subject to an application that is intended to be filed on 13 February 2018 to extend the time for compliance, the Applicant, which is the party that sought the Orders, has no wish to challenge them but rather seeks to comply with them at the earliest possible time in order to implement the agreement that was reached in court ordered mediation in 2015.

Meeting of the Applicant, Elders and representatives of the Mura Badulgal (Torres Strait Islander) Corporation in the RNTBC, including the Chairperson of that corporation (Mr Laurie Nona) and Michael Neil was held on Badu Island this morning. The Applicant confirmed that Badulgal are frustrated by the lack of progress to implement the agreement reached with their neighbours almost three years ago. Badugal seek the support of TSRA to do all things reasonably required to both comply with recent Court orders and to obtain a determination of native title over the claim area.

The Applicant in this proceeding does not support the TSRA application and does not see any basis for it in relation to this proceeding.

182    The second paragraph of these submission reflects the sentiments the Court heard expressed at the case management hearing on Thursday Island, and which the case management of this proceeding from September last year, including the orders made, has been designed to address. The hypothetical lay observer would appreciate that the parties to these other proceedings wish to have the Court’s 19 December 2017 orders implemented, so that they too can comply with case management orders made in their proceedings. Such an observer would understand the Court’s remarks as stemming from frustration, not partiality.

183    The Kaurareg people submit the TSRA, as a non-party, has not adduced any evidence about its interest in QUD266/2008, QUD267/2008, QUD362/2010, QUD6005/2002, QUD114/2017 and QUD115/2017, being the six other proceedings in which the Kaurareg people are involved. That submission is correct.

184    The Commonwealth submits, correctly, that r 5.07 of the Federal Court Rules 2011 (Cth) provides that a party who wishes to seek interlocutory relief must make an application in accordance with r 17.01. In turn, r 17.01 provides only for a party to a proceeding to seek orders by way of interlocutory relief in a proceeding. The Court has the power to dispense with compliance with the rules (see r 1.34), but the TSRA had not submitted it should do so, nor provided any material which could provide an evidentiary foundation for such a waiver.

185    I do not consider the TSRA is able to apply for the relief it seeks in relation to the other six claims. Since the TSRA has not addressed the issue, there is no occasion to consider dispensing with compliance with r 17.01.

186    This is a sufficient basis to reject the TSRA’s application in relation to the six proceedings other than the Part B claim. However, were it necessary, I would have concluded there was no connection at all between the TSRA’s allegations and the possibility of what I might decide or determine by way of questions of law and fact in those other proceedings, nor any orders or directions by way of case management that might be made.

187    The fact that the TSRA has sought to have me disqualify myself from case managing any of the Torres Strait proceedings illustrates, perhaps better than any other single fact, that what the TSRA is concerned about is scrutiny and criticism of its role as a native title funding body, or more broadly its conduct in relation to any of these native title claims. It is not in fact concerned about whether it might be reasonably apprehended I might take a partial approach against the TSRA’s interests as a respondent to the determination of any controversy arising in any of these native title claims.

Concluding observations

188    The three claim group member respondents submitted:

More generally, the link between the observations and orders made by your Honour and the asserted reasonable apprehension of bias, is not made out. The fact that your Honour has been critical of aspects of the conduct of the TSRA does not give rise to such a reasonable apprehension. Court’s are very often critical of the way litigation is conducted. Courts sometimes express preliminary views about the strengths or weaknesses of a party’s case or argument. Costs orders are regularly made against parties where their conduct is adjudged to be unreasonable. Very often, parties do not get want they want from the Court. None of this means that the Court or Judge might not bring an impartial mind to the resolution of disputes that involve that party.

189    I agree with that submission, and I consider the hypothetical observer would evaluate the remarks made, and language used in both the various reasons for judgment, and during case management hearings, against the outcome, and treatment, of the TSRA’s change of venue application, and reach the same conclusion.

190    The Commonwealth submitted that the Court has power under s 23 of the Federal Court of Australia Act and r 1.32 of its Rules to make orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes. It referred to AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 4) [2006] FCA 1050 where Young J, at [7], said:

This Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power extends to the making of orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 (‘Patrick’), at 32-33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, and at 61-62 [127] per Gaudron J; and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 217-218 [10]- [12] and [15] per Gleeson CJ, at 231-232 [60] per Gaudron J, and at 241 [91] and 242-243 [93]-[94] per Gummow and Hayne JJ.

191    The Commonwealth submitted that this principle is relevant to the reservation of costs in the 19 December 2017 orders, and I accept that submission. Further, if the Court can exercise powers to prevent abuse, frustration or interference with its processes, it can certainly, in a case management context particularly, identify conduct which may tend to have that effect, even if it does so in forceful language. In doing so, no reasonable lay observer might apprehend partiality: such an observer would apprehend the Court was attempting to perform its function. That includes, as Doyle CJ observed in IOOF, raising matters of its own motion, where the Court considers that necessary or appropriate.

192    I can accept that at times in reasons and in case management my mode of expression has been critical of the TSRA, and forceful. However, I consider it was plain to all, including the TSRA, when issues were going to arise that might expose it to criticism for the approach it was taking to this proceeding, sometimes donning its hat as a respondent, and sometimes insisting it was performing funding and resource allocation functions outside its role as a respondent in this proceeding. I have been transparent in foreshadowing issues that might involve difficulties for the TSRA, whether those issues arise from material placed before the Court by other parties, or arise from the Court’s understanding of the circumstances.

193    The extraordinary nature of what occurred over the seven months leading up to this application is important, and would be important to a hypothetical lay observer’s views of what the TSRA has identified in this application. During the impugned series of events, the TSRA did not provide any explanation, or put on any evidence to assist the Court in evaluating its conduct and decision-making in a different light. The three claim group member respondents were put forward at the Thursday Island case management hearing with the agreement of the claim group members present and Mr Akiba, as appropriately representative, and include Mr Nona as Chair of the Malu Lamar PBC. They were exasperated and distressed at the conduct of the TSRA, as the extracts I have cited above demonstrate. The TSRA has never submitted these three individuals were part of a minority or somehow unable or unfit to represent and advance the interests, on a temporary basis until the authorisation process could occur, of the claim group members with responsibility for the Part B Sea Claim area. It did not submit they should not be believed in what they said. The TSRA has never proactively suggested an authorisation process, or offered to fund and coordinate one in conjunction with the claim group members, or those who represent them. Instead it was the only party that did not join in asking the Court to make the orders concerning the s 66B process.

194    Notwithstanding these matters, the Court has stopped well short of exercising any power that could be said to trespass on the TSRA’s statutory power to make decisions on applications for the funding of legal representation, or expert work, for the Part B Sea Claim. To give an additional example to those I have already extracted, in a postscript at [178] to the s 66B steps reasons, having referred to evidence concerning the TSRA’s (then) offer of funds which “both sets of parties [ie the applicant and the three claim group member respondents] to whom the grant is made are likely to consider the amount inadequate”, I concluded that this was “a matter for those parties.”

195    At the same time, the Court hears the statements from people such as Ms Kanai, who have representative roles in their communities: see the extracts above and in the s 66B steps reasons at [119]. I refer also to those sentiments expressed by Mr Akiba through his lawyer on the disqualification application, which I have extracted at [42] above. Old people are dying, time and opportunities are passing and this claim is further from determination in relation to any part of the claim area than it was at the end of 2016. If any attention is paid to the matters in the Preamble to the Native Title Act, being the Act under which this Court exercises its jurisdiction in this proceeding, this situation is of great concern.

196    If these concerns have caused me to use language that is too impatient or too intemperate, then that is a matter I regret and it is a failure for which I accept responsibility. However I consider that any hypothetical lay observer who had sat through all these case management hearings, who had heard the claim group members, who appreciated what the passage of 17 years means in these circumstances, who knew how close this matter had been at one stage to a consent determination in at least the Western Overlap, would understand that although the language used is sometimes strong, there has been a justifiable basis for the concerns I have expressed in trying to case manage the proceeding towards some progress, and so the other six proceedings whose resolution to some extent depends on this claim, can also progress. It is no part of these reasons to seek to justify again, and differently, what I have previously said in my earlier reasons.

197    I am not satisfied that, taken in context, and having sat through all these matters, a reasonable lay observer might consider I might not bring an impartial mind to any exercise of judicial power in the case management of this proceeding, even if there could be posited a situation where the TSRA might have a basis to take an active stance, as a respondent, on a case management issue that was opposed to the position of other parties. The TSRA accepted in substance that the venue reasons were appropriate in the circumstances – not just open, but appropriate. They occurred in the midst of all the matters the TSRA says give rise to a reasonable apprehension of bias.

Paragraph 13 of the 19 December 2017 orders and costs

198    These are the two matters which I foreshadowed I should not determine until after I had determined the disqualification application. Ultimately the TSRA agreed with that course. The TSRA could have sought leave to appeal from paragraph 13 of the 19 December 2017 orders, as it did in relation to other orders made on that date. It has not done so. Since I have decided there is no basis to disqualify myself from continuing to case manage this proceeding, and the other Torres Strait proceedings, and there has been no leave to appeal sought from that order, at the moment I do not understand what the basis to vary or discharge paragraph 13 would be. However the TSRA may have further submissions to make about that matter and will be given the opportunity to do so, as will the other parties.

199    The parties will be given an opportunity to make any further submissions they wish to make on the application for costs by the three claim group member respondents, and any other submissions on costs they wish to make.

Associate:

Dated:    29 May 2018