FEDERAL COURT OF AUSTRALIA

Anderson on behalf of the Warrabal People v State of Queensland [2018] FCA 1365

ORDERS

THE COURT ORDERS THAT:

1.    The applicant have leave to file a notice of discontinuance.

2.    The notice of discontinuance must be filed and served within seven days.

3.    There will be no order as to the costs of the proceeding.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    The applicant (the Warrabal applicant) has applied for leave to discontinue its application (the Warrabal claim) for a determination of native title.

2    Under r 26.12(4) of the Federal Court Rules 2011 (Cth), a representative party must obtain the leave of the Court to file a notice of discontinuance. Native title proceedings are conducted by a representative party: see r 9.21(1) of the Federal Court Rules; Hill on behalf of the Yirendali People Core Country Claim v State of Queensland [2015] FCA 300 at [5]. Accordingly, the Warrabal applicant requires the leave of the Court to discontinue the proceeding.

3    The State of Queensland (the State) opposes the application. Its opposition must be understood against the history of this proceeding and a number of related proceedings.

4    The Warrabal claim is one of a cluster of applications for determinations of native title over areas of Central Queensland. The other applications in the cluster are made on behalf of: the Gaangalu Nation People (QUD400/2012) (the Gaangalu claim); the Western Kangoulu People (QUD229/2013); the Wadja People (QUD422/2012); and the Wulli Wulli People #3 (QUD619/2017). Each of these applications bears some relationship to another in the cluster. Some overlap. Some claim groups share common apical ancestors. The claims are all geographically proximate.

5    The Court has case-managed the claims in the cluster together. The overlapping claims are required, under s 67 of the Native Title Act 1993 (Cth) (the NTA), to be dealt with in the same proceeding. Where there are common apical ancestors in respect of adjoining claims, it seems practical to also deal with those claims in the same proceeding. It may ultimately be necessary for all the claims in the cluster to be dealt with in a single trial, or for there to be some groupings of the claims to be dealt with in several trials, or for there to be a series of consecutive trials. Whichever method is adopted, it is apparent that the hearings will be lengthy and involve substantial expenditure of resources for the Court and for the parties. With these matters in mind, the programming orders for each of the claims in the cluster have been set in step with each other. The aim is for all of the claims to become ready for trial so that a joint case management hearing can be conducted in November 2018 with a view to deciding upon their conduct and listings for hearing.

6    Most relevantly for present purposes, the Warrabal claim wholly overlaps the Gaangalu claim. The discontinuance of the Warrabal claim would result in the removal of the overlap, but will not necessarily remove the underlying dispute over the overlapped area.

7    The State of Queensland is the only common party for each of the five claims. The State’s concern is that if the Warrabal claim is permitted to be discontinued, it would be open to the Warrabal claim group to commence another proceeding and cause major disruption to the programming and conduct of the other matters. Further, the underlying Warrabal dispute would remain unresolved.

8    The principles relevant to a grant of leave to discontinue were summarised by Lee J in Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382 at 383–384 as follows:

The discretion to grant leave is unfettered. The court will give consideration to the need to refrain from compelling a party to litigate against its will but will also consider the extent to which the proceedings have developed and whether discontinuance against one respondent may impose injustice on another respondent by removing an advantage that respondent may otherwise enjoy in the proceedings or by imposing a disadvantage. In considering the undesirability of an applicant being forced to continue litigation unwillingly, it is relevant to have regard to whether the discontinuance would make any difference to the burden of litigation undertaken by the applicant and whether the application to discontinue results from a conclusion that the litigation cannot succeed against that respondent or is inspired by other reasons.

The requirement of the Federal Court Rules that, in the absence of consent of all parties, discontinuance of litigation against a party only be permitted by leave of the court contemplates a judicial review of all relevant circumstances and the satisfaction of the court that the grant of leave is proper in all the circumstances. In some cases the court may determine that a grant of leave to discontinue should be attended with conditions and in a rare case the court may determine that the only appropriate order is to refuse the leave sought.

(Citations omitted).

9    In Levinge on behalf of the Gold Coast Native Title Group v State of Queensland [2012] FCA 1321, the applicant sought leave to discontinue, but the State sought the imposition of conditions requiring, inter alia, that no further native title determination application be filed on behalf of the claim group without the leave of the Court. Justice Reeves held that the applicant was authorised under s 62A of the NTA to apply for leave to discontinue the proceeding, but that leave should be refused because there was no evidence as to whether the claim group itself agreed with or opposed the application for leave to discontinue. His Honour contrasted the position in Close on behalf of the Githabul People #2 v State of Queensland (2010) 190 FCR 182, where Collier J concluded that the evidence demonstrated that specific authority had been conferred upon the applicant by the claim group to seek leave to discontinue. His Honour considered that the views of the native title claim group were germane where the applicant proposed to bring a complete end to the proceedings.

10    In Levinge, in obiter, Reeves J expressed the opinion that the Court does not have the power to impede the right of a claim group to invoke the jurisdiction of the Court under s 61(1) of the NTA by imposing conditions upon the filing of any future claim. In this regard, his Honour departed from the approach taken in Close and in Gale on behalf of the Daruj Tribunal Aboriginal Corporation v New South Wales Minister for Land and Water Conservation [2011] FCA 77. It is unnecessary to consider that issue here since no party submitted that leave to discontinue the proceeding should be granted on conditions (although it will be necessary to consider a related issue raised by the State).

11    In oral submissions, the solicitor for the applicant, Mr Besley, explained that the applicant wishes to discontinue the proceeding because it takes the view (it may be inferred, on advice) that it cannot demonstrate that the claim was properly authorised, nor that the defects in authorisation can be overlooked under s 84D(4) of the NTA.

12    Registration of the Warrabal claim was rejected pursuant to s 190A(6B) of the NTA. The reasons given by the Registrar’s delegate included that the claim was not properly authorised. The delegate considered that the Warrabal People are a subgroup of the Darumbal People; and that the Warrabal claim required, but had not received, authorisation by the Darumbal People as a whole. Mr Besley informed the Court that the Warrabal applicant accepts the findings of the delegate.

13    The delegate also noted that there are common members of the Warrabal and the Gaangalu claim groups. The Warrabal applicant accepts that some of these people were not involved in the authorisation process and in fact oppose the Warrabal claim.

14    The Warrabal applicant concedes that the Warrabal claim is not properly authorised and cannot succeed. It is for that reason that the Warrabal applicant seeks to discontinue the claim.

15    The State argues that the refusal of registration and the views expressed by the delegate are not fatal to the Warrabal applicant’s claim. That may be so, but what is important is the Warrabal applicant’s acceptance of the state of facts underlying the delegate’s findings that the claim required authorisation by the Darumbal People. The concession having been made by the Warrabal applicant that the claim is not properly authorised, it seems inevitable that the claim would fail if prosecuted to trial.

16    In these circumstances, the issue is whether there are adequate reasons to compel the Warrabal applicant to continue to prosecute a claim that it concedes will not succeed. In my opinion, the reasons would have to be strong to justify such a course.

17    The State submits that the Warrabal applicant should not be given leave to discontinue unless it gives some kind of undertaking that no future claim will be brought on behalf of the Warrabal People. However, it is difficult to understand how the applicant could give any such undertaking on behalf of all the members of the claim group. Section 62A of the NTA provides an applicant with authority to deal with matters arising under the NTA in relation to an existing claim—not any future one. The question of whether any claim may be brought in the future is not for the applicant, but for the claim group as a whole. Even if the applicant gave such an undertaking, it could not bind the claim group.

18    While the State is concerned that a further application may be brought on behalf of the Warrabal People over the same area, causing substantial disruption to the cluster of matters for which programming orders have been made, that prospect appears very unlikely on the evidence presently available to the Court. The concessions made by the Warrabal applicant have been made with the benefit of legal advice and, presumably, with the benefit of such evidence as their lawyers considered necessary to provide such advice. The Gaangalu claim has been on foot in its current iteration for six years and there is no suggestion that the Darumbal People have expressed any interest in making an application over that claim area. Further, members of the Gaangalu claim group who are also members of the Warrabal claim group have opposed the Warrabal claim. In view of the concessions made, it would seem irrational for a further Warrabal application to be made without the authorisation problems having been resolved. The prospect of a properly authorised Warrabal claim over the same area seems, at best, unlikely.

19    The State submits that, as in Levinge, leave to discontinue should not be granted because no evidence has been produced that the members of the claim group as a whole have been consulted and agree with the discontinuance of the claim. There are difficulties with this submission. Firstly, the premise of the submission is not entirely correct, since there is evidence that some members of the Warrabal claim group who are also part of the Gaangalu claim group are opposed to the Warrabal claim and would, presumably, support its discontinuance. Secondly, the question of leave to discontinue involves the exercise of a discretion and must depend upon the particular circumstances of the particular case under consideration. Levinge does not purport to establish any immutable rule that there must be evidence of the applicant having consulted with and obtained the consent of the claim group as a whole to discontinue a proceeding. In my opinion, the starting point is that it is within the power of an applicant under s 62A of the NTA to discontinue a claim. The decision to seek leave to discontinue was a unanimous decision of the applicant and there is nothing to suggest dissention upon that issue within the claim group. The applicant’s decision was made having received legal advice that the claim is not properly authorised. Whatever views might be expressed by members of the claim group upon being consulted would not change that position. The position was otherwise in Levinge where the claim was to be discontinued because of a lack of funds, with a view to a new claim being filed when funds became available. In that case, if the members of the claim group had been consulted, it was possible that, for example, they may have been able to raise the funds to continue the claim.

20    In my opinion, it would not be in the interests of justice to compel the Warrabal applicant to proceed with a claim that it concedes, on legal advice, is fundamentally and fatally flawed. While the State has legitimate concerns that a new claim over the same area could cause major disruption to the programming and hearing of the cluster of claims in the area, it seems unlikely that a new Warrabal claim will be made. While it is true that the will of some Warrabal people to make a claim over the area may remain, their ability to make a properly authorised claim is very doubtful. If a new claim is made, the concessions made by the Warrabal applicant are likely to be relevant to any application to dismiss the claim under s 190F(6) of the NTA.

21    In these circumstances, the Court’s discretion should be exercised to allow the Warrabal People claim to be discontinued.

22    I will order that the Warrabal applicant have leave to file a notice of discontinuance. The notice of discontinuance should be filed and served within seven days. There will be no order as to the costs of the proceeding.

Associate:    

Dated:    6 September 2018

SCHEDULE OF PARTIES