FEDERAL COURT OF AUSTRALIA

Wilson v State of South Australia (No 3) [2019] FCA 1150

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an order vacating the trial dates is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This application for a determination of native title relates to an area situated on the West Coast of South Australia. It is known as Wirangu No. 2.

2    On 5 August 2018, White J ordered that Wirangu No. 2 be separated into two parts to be called “Wirangu No. 2 Part A” and “Wirangu No. 2 Part B”. I will refer to the separate parts as Part A and Part B respectively. White J ordered that Part B comprise that part of the claim area that is subject to an overlapping claim made in action SAD 63/2018 filed on 20 March 2018 (the Nauo Overlapping Claim). Part B is to be dealt with in the same proceeding as the Nauo Overlapping Claim. Part B and the Nauo Overlapping Claim are subject to ongoing case management by White J and are not presently before me.

3    Part A comprises that part of the claim area that is not subject to the Nauo Overlapping Claim. By an order made on 5 November 2018, the trial of all issues arising in Part A was set down to commence on 4 November 2019, with an initial period of four weeks set aside.

4    By an oral application made on 8 July 2019, the applicant seeks to have the trial dates vacated. For the reasons that follow, the application to vacate the trial date should be refused.

5    Before turning to the issues raised by the applicant, it is necessary to provide some background to the application, commencing with some issues recently determined in relation to the description of the Wirangu No. 2 claim area.

THE CLAIM AREA

6    By s 61(1) of the Native Title Act 1993 (Cth) (NT Act) a native title determination application may be made by:

(1)    A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; …

7    Section 251B states what it means for a person or persons to be “authorised” by all of the people in a native title claim group. By s 61(2) the authorised person is (or the persons are jointly) the applicant in the proceeding. The applicant in Wirangu No. 2 comprises seven persons authorised by the claim group.

8    Section 61(5) relevantly requires that an application be in the prescribed form, be filed in this Court and contain such information in relation to the matters sought to be determined as is prescribed. Section 64(1) of the NT Act provides that an amendment to an application must not result in the inclusion of any land or waters that were not covered by the original application.

9    The Wirangu No. 2 application was commenced by a Form 1 filed in the Court nearly 22 years ago on 28 August 1997. The Form 1 was amended by orders of O’Loughlin J on 12 March 1999 and again on 25 January 2000.

10    Schedule B to the Form 1 defines the external boundaries of the claim area in a way that is not controversial. Schedule B then contains the following exclusion:

EXCLUSION of certain land within the claimed area:

A.-    all freehold land;

B.-    all perpetual leasehold land;

C.-    all townships and settlements delineated on the Public Map held by the Registrar General.

11    At a case management hearing in October 2017, the parties identified an issue arising in relation to the description in paragraph “C”. I will refer to that description as the paragraph C exclusion.

12    It was the State of South Australia’s position that there was no public map in existence of the kind to which the exclusion referred, or at least no public map that delineated townships and settlements. The applicant was unable to say what the paragraph C exclusion meant and, as a consequence, was unable to say whether any land within the external boundaries of the claim area was excluded by it. The difficulty for the applicant was that it was unable to file any amended application recasting or deleting the exclusion because the applicant could not say whether any such amendment would have the effect of enlarging the claim area, which cannot be done: NT Act, s 64(1).

13    Other than raise the perceived problem with the area description, the applicant’s advisers did not make any application to the Court with a view to resolving it. A proposed amended Form 1 circulated on 7 June 2019 contained nothing that would adequately address the problem.

14    On 18 June 2019, the Attorney-General for the State of South Australia filed a non-claimant application in relation to an area defined by reference to the external boundaries of Wirangu No. 2, albeit using a more accurate boundary description: SAD 123/2019. By that application, the State seeks a determination that native title does not exist in relation to the whole of the area within the external boundary (including freehold and perpetual leasehold land). At least in part, the Attorney-General’s application was filed in an attempt to ensure that all of the land within the external boundaries of Wirangu No. 2 could be subject to a determination of whether or not native title exists.

15    On 8 July 2019 I ordered that the Attorney-General’s application in SAD 123/2019 be separated into two parts, to be called “Wirangu No. 2 Non-Claimant Application Part A” and “Wirangu No. 2 Non-Claimant Application Part B”. The areas of each part coincide with the areas to which the Part A proceeding and the Part B proceeding respectively relate. Save to the extent that it covers freehold and perpetual leasehold land, the Non-Claimant Application Part A wholly overlaps the area subject to the Part A proceeding. For simplicity I will refer to the Non-Claimant Application Part A as simply “the non-claimant application”.

16    I made a further order that the non-claimant application be heard and determined at the same time as Part A. The effect of that order is that the trial of the non-claimant application is to commence on 4 November 2019.

17    On 8 July 2019 I made a further order in Part A to the effect that the question of whether any land or waters fell within the paragraph C exclusion be heard and determined as a separate issue. The question was set down for hearing and determined on the same day. Oral reasons were given.

18    On the basis of the uncontested evidence at [1] to [26] of the affidavit of Georgina Megan Reid sworn on 3 July 2019, I made a finding to the effect that there was no “Public Map” of a kind referred to in the paragraph C exclusion and that, as a consequence, there was no land excluded by the description within the boundaries of the claim area to which Part A relates.

19    It follows from that finding that the only land excluded from the Part A claim is that land meeting the descriptions in paragraph A (freehold land) and paragraph B (perpetual leasehold land) at the time that the application was first filed. The tenure analysis undertaken by the State enables that land to be readily identified.

20    Since the application was filed, about 20 parcels of the excluded land have reverted to the Crown. I will refer them as the reverted parcels.

21    It is against that background that the application to vacate the hearing dates is to be determined.

Principles

22    The overarching purpose of the Court’s civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Federal Court of Australia Act 1976 (Cth) (FCA Act), s 37M(1). The overarching purpose includes the objectives in s 37M(2) of the FCA Act:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

23    The parties to a civil proceeding must conduct the proceeding in a way that is consistent with the overarching purpose: FCA Act, s 37N(1). A party’s lawyer must, in the conduct of the proceeding, take account of the party’s duty under s 37N(1) and assist the party to comply with it: FCA Act, s 37N(2).

24    As White J said in Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia [2017] FCA 461 at [61] the Court’s the discretionary powers (in that case the power to dismiss an action for want of prosecution), should be exercised recognising that:

… native title litigation is not the same as ordinary private inter partes litigation, as it involves claims for the vindication of rights of a communal nature based on physical and spiritual connections over land and waters which may have existed for time immemorial: ...

25    In Agius v State of South Australia (No 4) [2017] FCA 361 Mortimer J said, of s 37M of the FCA Act:

84    Determining where to draw lines in case management processes is not an exact science. The overarching purpose in s 37M(1) of the Federal Court Act is the facilitation of the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible. The phrase ‘just resolution’ does not appear alone, but rather in the context of the legislatively mandated attributes of quickness, inexpensiveness and efficiency. The focus on the prudent use of the tremendous public resources involved in running a court system is apparent. The Court must ‘facilitate’ the achievement of that purpose through its case management, and its exercises of power and discretion under the Act and the Rules. As Edelman J pointed out in Hart v Deputy Commissioner of Taxation [2016] FCA 250 at [6], timeliness is an important aspect of this objective, as is the ‘efficient use of the judicial and administrative resources available for the purposes of the Court’, this being a consideration emphasised by French CJ in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5]. Aon was a case about an adjournment. Effectively, that is the nature of the current application.

85    The Court must do its best to reach a conclusion that is consistent with the overarching objective in s 37M of the Federal Court Act, while ensuring the active parties have a reasonable opportunity to present their respective cases. The latter requirement is not co-extensive with any party’s insistence that it should be able to present a case whatever way a party chooses, and on the timetable the party wishes. If the resources of the civil justice system ever permitted or encouraged this approach (which I doubt), they certainly do not do so now.

26    In Akiba on behalf of the Torres Strait Regional Sea Claim v State of Queensland [2017] FCA 1336 at [141] – [142], Mortimer J emphasised that on an application such as the present, the Court must weight a variety of circumstances, including the time at which the application is made. Her Honour said, in relation to native title proceedings:

142    It is critical to recall that, overwhelmingly, on all sides of these seven proceedings – the TSRA, the State, the Commonwealth and the Court – the expenditure of public funds is occurring. That expenditure should always be careful, justifiable, and responsible, targeted at the real issues in dispute between the parties and the real questions raised in a proceeding.

ISSUES RAISED BY THE APPLICANT

27    Counsel for the applicant raised a number of issues, described as “problems”, affecting the whole of the Wirangu No. 2 claim as presently formulated. It is submitted that a series of options to resolve the problems will be raised at an authorisation meeting scheduled to occur on 2 August 2019 involving both the Wirangu No. 2 claim group and the claim group described in the Nauo Overlapping Claim. It is said that the meeting of both groups might result in the commencement of an additional native title application that should, in the interests of justice and expediency, be tried at the same time as the Part A proceeding. It is otherwise submitted that the resolutions at the joint meeting may result in substantive changes to the nature of the applicant’s case requiring an amendment to its statement of facts issues and contentions and the need to prepare additional anthropological and lay evidence before the trial can commence. Other amendments to the Form 1 were foreshadowed, including references in the Form 1 recognising certain interests of the Nauo people within the claim area. Some of the proposed amendments to the Form 1 in this proceeding were said to require the authorisation of both groups, hence the convening of a joint meeting.

28    I will deal with the issues raised by the applicant separately and then in combination.

THE REVERTED PARCELS

29    Section 47B of the NT Act provides:

47B Vacant Crown land covered by claimant applications

When section applies

(1)    This section applies if:

(a)    a claimant application is made in relation to an area; and

(b)    when the application is made, the area is not:

(i)    covered by a freehold estate or a lease; or

(ii)    covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or

(iii)    subject to a resumption process (see paragraph (5)(b)); and

(c)    when the application is made, one or more members of the native title claim group occupy the area.

Prior extinguishment to be disregarded

(2)    For all purposes under this Act in relation to the application, any extinguishment, of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.

Note:    The applicant will still need to show the existence of any connection with the land or waters concerned that may be required by the common law concept of native title.

Effect of determination

(3)    If the determination on the application is that the native title claim group hold the native title rights and interests claimed:

(a)    the determination does not affect:

(i)    the validity of the creation of any prior interest in relation to the area; or

(ii)    any interest of the Crown in any capacity, or of any statutory authority, in any public works on the land or waters concerned; and

(b)    the non extinguishment principle applies to the creation of any prior interest in relation to the area.

Renewals and extensions of leases

(4)    For the purposes of paragraph (1)(b), if, after a lease covering an area expires or is terminated, the lease is bona fide renewed, or its term is bona fide extended, the area is taken to be covered by the lease during the period between the expiry or termination and the renewal or extension.

Defined expressions

(5)    For the purposes of this section:

(a)    the creation of a prior interest in relation to an area does not include the creation of an interest that confirms ownership of natural resources by, or confers ownership of natural resources on, the Crown in any capacity; and

(b)    an area is subject to a resumption process at a particular time (the test time) if:

(i)    all interests last existing in relation to the area before the test time were acquired, resumed or revoked by, or surrendered to, the Crown in any capacity; and

(ii)    when that happened, the Crown had a bona fide intention of using the area for public purposes or for a particular purpose; and

(iii)    the Crown still had a bona fide intention of that kind in relation to the area at the test time.

30    This section was introduced by amendment in 1998. For present purposes, no party has suggested that it has no application to a claim filed before that time.

31    As has been said, the Wirangu No. 2 claim excludes land that was freehold or held under a perpetual lease at the time that the application was made, including the reverted parcels. It is the applicant’s case that s 47B of the NT Act applies to the reverted parcels such that, if a claim were made in respect of those parcels, the Court should determine that native title exists in respect of them.

32    As s 64(1) of the NT Act prevents an amendment to a claim having the effect of including any additional areas, the issues arising in relation to the reverted parcels cannot be joined in the present proceedings by amending the description of the claim area. The applicant submitted that a positive determination in relation to the reverted parcels could not be made in the course of determining the non-claimant application. The Crown did not demur.

33    Accordingly, for a positive determination of native title to be made in relation to the reverted parcels, it would be necessary for the applicant to file a new claim in relation to them. The applicant proposes such a claim, referred to in submissions as “Wirangu No. 3”.

34    The applicant submits that Wirangu No. 3 should, if and when filed, be set down for hearing at the same time as the trial in Part A so that all areas within its external boundary in respect of which a positive determination is sought may be heard and determined together. It was further submitted that it would be convenient for Wirangu No. 3 to be combined with Wirangu No. 2.

35    There is obvious merit in that proposal. In the ordinary course, it would be convenient and sensible for all issues relating to native title within the external boundary of the land comprising Part A to be heard and determined together. In particular, it would be convenient and cost effective for the Court to hear evidence relating to occupation of the reverted parcels at the same time that it hears evidence in relation to all issues affecting native title within the broader area in which those few parcels are situated. The evidence of occupation must be considered in light of the broader contextual evidence in any event.

36    It may also be accepted that it will not be possible for the foreshadowed Wirangu No. 3 claim (if commenced) to be progressed to trial to commence on 4 November 2019. On the arrangements as they presently stand, authorisation to commence such an application cannot be obtained until at least 2 August 2019 when the joint authorisation meeting is scheduled to take place. Any such application, if authorised, would be subject to a registration test in accordance with s 190A of the NT Act and then subject to a notification period in accordance with s 66 of the NT Act.

37    If the Wirangu No. 3 claim were to be filed, it would overlap with the non-claimant application, albeit to the small extent of the reverted parcels. Section 67 of the NT Act would apply. It provides:

Overlapping native title determination applications

(1)    If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

Splitting of application area

(2)    Without limiting subsection (1), the order of the Court may provide that different parts of the area covered by an application are to be dealt with in separate proceedings.

38    At the very least, an order under s 67 of the NT Act would have the effect of delaying the determination of that part of the non-claimant application that overlaps with the reverted parcels subject to Wirangu No. 3, thus leaving the issues relating to the reverted parcels unresolved while the issues relating to the remainder of the Part A claim area and the non-claimant application area proceed to judgment.

39    That state of affairs may be avoided if an order were made vacating the trial that is presently due to commence on 4 November 2019. The adjournment would enable the claimants in Wirangu No. 2 Part A and the claimants in the proposed Wirangu No. 3 to have a single trial in relation to all areas in which they seek a positive determination of native title.

40    However, as has been said, the trial of the Part A proceeding was set down by orders made on 5 November 2018. In light of what follows, I am not satisfied that a proceeding of the kind now foreshadowed could not have been commenced before the trial dates were set, or at least some months ago.

41    The applicant’s solicitor appears to have first raised the potential for issues arising under s 47B to give rise to a new claim at a case management conference on 13 February 2018. At a case management conference on 23 March 2018, the applicant’s solicitor said that the applicant was likely to file a new claim over areas excluded from the current claim. She advised that the applicant hoped to be in a position to have held authorisation meetings so as to file the new claim by 30 June 2018. In an email to the South Australia District Registry dated 8 August 2018, the applicant’s solicitor referred to a claim group meeting scheduled for 24 August 2018. An authorisation meeting was in fact held in August 2018.

42    However, authorisation to commence a native title application in relation to the reverted parcels was neither sought nor obtained at the meeting in August 2018 and no meeting has been convened for that purpose until now, some twelve months later.

43    Counsel for the applicant referred to affidavit evidence to the effect that the applicant was still receiving tenure material from the State in July 2018 and as late as June 2019. However, there is nothing to show that the latter communications contained information affecting the applicant’s ability to formulate and commence a claim in relation to the reverted parcels and the State denies that is the case. Nothing in the applicant’s affidavit evidence expressly suggests that to be the case. The affidavit evidence offers no direct explanation for the delay in preparing and commencing a claim in relation to the reverted parcels.

44    In my view, the likelihood that parcels of land excluded from the claim area might have reverted to the Crown since the application was filed is one that ought reasonably to have been anticipated by any solicitor having responsibility for the conduct of a claim of this vintage. I infer that the applicant was in possession of the information necessary to formulate, prepare and file a claim in relation to the reverted parcels as early as February 2018 when a proceeding concerning land excluded currently from the claim was first foreshadowed to the Court. If I am wrong in that regard, there is nothing to suggest that the necessary authorisation could not have been obtained and the matter prepared and filed soon after the trial dates for the Part A proceeding were set. Whatever the difficulties the applicant might experience convening an authorisation meeting, there is no evidence to show that such a meeting could not have been arranged in time for the new claim to have been filed and the issues to have been joined and tried in the one hearing.

45    It was then submitted that the Wirangu No. 3 claim was not filed because it was inextricably complicated by the perceived ambiguity in the paragraph C exclusion. I do not accept that submission.

46    Whether and when a claim in relation to the reverted parcels could or should be commenced was not affected by any confusion surrounding paragraph C. At the case management hearing in October 2017, the State informed the Court of its position that no land fell within the paragraph C exclusion. Knowing that to be the State’s position, it remained open to the applicant to bring an application to have the question resolved, and yet no such application was made until the Court itself suggested a procedure for its resolution. It is otherwise unclear when and by what procedural means the applicant’s advisers thought their perceived difficulties arising out of the paragraph C exclusion might have been overcome.

47    Even if there was some reason to delay the resolution of the ambiguity, it remains unclear to the Court how that could justify the delay in commencing a separate native title determination application in relation to the reverted parcels. The perceived ambiguity in the paragraph C exclusion did not prevent the proper identification of the reverted parcels, nor did it affect how s 47B might operate in respect of them.

48    It is then submitted that the filing of Wirangu No. 3 has been delayed because of difficulties deciding how the claim group on that application should be described. This submission raises broader issues concerning the description of the claim group in Wirangu No. 2, to which I now turn.

CLAIM GROUP DESCRIPTION

49    There are two aspects to this issue. The first concerns a proposed amendment to the description so as to identify the native title holders by reference to an earlier order of apical ancestors to that presently described in the applicant’s Form 1. The second relates to the possible inclusion of an additional apical ancestor, “Mary of Streaky Bay”.

Earlier order ancestors

50    In its statement of facts, issues and contentions (SFIC) filed 21 December 2018 the applicant described the claim group in terms that differ from the description given in Schedule A of the Form 1. The description in the SFIC was as follows:

Form 1 means the Form 1 filed on 10 March 1999 on behalf of the Wirangu People;

…

Wirangu Claim Group or Wirangu People means the living descendants of the Ancestors identified in the Form 1 and in subsequent research, associated with Wirangu Country and the Claim Area, and who identify as Wirangu and are accepted as Wirangu by other Wirangu People;

…

The Ancestors of the Wirangu Claim Group are:

i.    those persons named in the Wirangu No. 2 Form 1 as the Apical Ancestors of the Wirangu Claim Group; and

ii.    those persons identified in subsequent research, namely

•    Eliza Ellen (1840), the antecedent of Bob Ware

•    Wilubi (also spelled Wilabi) (1865)

•    Bobby Wandrooka (1870)

•    Binilya (1855, d 1915) and Kaltnya

•    Jimmy Richards (1871, Fowlers Bay) and Arthur Richards (1875, Penong)

•    The Wirangu mother of Ada Kathleen Beagle (1885, Colona Station)

•    Annie Wombat (1895-1900).

51    This description was followed by the statement: “it is noted that there is a proposal to amend the Wirangu Claim Group description”.

52    In its amended statement of facts, issues and contentions filed on 29 March 2019 (amended SFIC) the claim group is described in substantively the same terms as the earlier iteration of the SFIC.

53    On 7 June 2019 the applicant circulated a Draft Further Amended Form 1. The description of the claim group in the proposed amended Form 1 coincides with the description given in the amended SFIC.

54    The effect of the amendment would be to define the claim group by reference to an earlier generation of apical ancestors as identified in the anthropological reports upon which the applicant will rely at trial. Any application for leave to make such an amendment would not be opposed by the respondents.

55    In advance of the joint authorisation meeting to be held on 2 August 2019, the applicant in Wirangu No. 2 and the applicant in the Nauo Overlapping Claim have published a notice of the joint meeting identifying the issues to be raised. The notice indicates that authorisation would be sought for a proposed amendment to the Form 1 in Wirangu No. 2. The proposal for the amendment is consistent with the description of the claim group in the amended SFIC.

56    To my mind it is unclear how any amendment of the Form 1 of this kind would put the trial dates in peril. The amendment is not one that would be subject to the notification requirements in s 66 of the NT Act. More importantly, the evidence prepared in advance of the trial in Part A is directed to the issues as identified in the amended SFIC insofar as the identity of the apical ancestors is concerned. The proposed amendment would serve to do what for some months the applicant has said would be done – have the applicant’s pleaded case coincide with its claim as formulated on its originating application.

57    The applicant’s solicitor informed the Court in 2018 that an amendment to the claim group description would be the subject of an authorisation meeting to be held in August 2018. The applicant’s advisers have not explained why authorisation to change the apical ancestors (if it be required) was not obtained at that meeting or otherwise at a meeting convened after the first SFIC was filed in December 2018. The preferred description of the claim group was known to the applicant’s representatives from at least that time.

Mary of Streaky Bay

58    On the material before the Court on this application, a reference to Mary of Streaky Bay first appears in writing in a draft proposed Wirangu No. 3 claim annexed at BL-12 to the affidavit of Bianca Lena filed on 25 June 2019. The proposed claim group in Wirangu No. 3 is described as follows:

a.    Binilya and Kaltyna;

b.    Bobby Wandrooka;

c.    Eliza Ellen;

d.    Eve or Eva Mary;

e.    Imbanga and her spouse Tjeltjinya;

f.    Jack and Annie Wombat.

g.    Kulbula;

h.    Lucy Minjia and her spouse Bob Ware;

i.    Siblings Nellie Louise Gray, Dhulbalgurda Frank Gray and Kwana Ted Gray;

j.    The Wirangu mother of Ada Beagle;

k.    The Wirangu mother of siblings Jimmy and Arthur Richards;

I.    Tjeira and her spouses Yari Wagon Billy and Tommy Munia;

m.    Wilubi; and

n.    Yaldildi Johnny Gibera; and

o.    Mary of Streaky Bay?*

(original emphasis)

59    Counsel for the applicant informed the Court that the apical ancestor Mary of Streaky Bay is the same apical ancestor by reference to whom the whole of the claim group in the Nauo Overlapping Claim is described. In other words, the applicant is proposing that the claim in relation to the reverted parcels, and perhaps other areas presently excluded from the claim, be comprised both of the Wirangu people (as presently described in the SFIC) and the Nauo people (as presently described in the Nauo Overlapping Claim). The question mark appearing after the description indicates that the legal drafter’s thinking in relation to the inclusion of the additional apical ancestor may have been unsettled at the time that the document was drafted. With respect, the submissions concerning the proposed inclusion of the new apical ancestor did not render the applicant’s intended case any more certain.

60    The inclusion of Mary of Streaky Bay as an ancestor for the purposes of the proposed Wirangu No. 3 claim appears to be one of a number of “options” to be put to the joint authorisation meeting. In oral submissions it was said that the options to be put to the respective claim groups at the joint authorisation meeting might include the inclusion of Mary of Streaky Bay in the Wirangu No. 2 claim, so affecting the questions to be tried in Part A. That option is not included in the published notice of the meeting. Unlike the proposed amendment in relation to the earlier-in-time ancestors discussed earlier, it is not suggested that the proposed inclusion of Mary of Streaky Bay is founded on anything arising out of the anthropological research obtained in advance of the trial.

61    It is presently unclear to the Court why the applicant in Wirangu No. 2 would, in close proximity to trial, seek to include within the claim group description all of the persons who have commenced a competing Nauo Overlapping Claim in relation to the area now comprising Part B.

62    Assuming that such an amendment to Wirangu No. 2 was required to be authorised and was in fact authorised (whether by one claim group or both) that would, as the applicant acknowledges, amount to a significant shift in the way that its claim is formulated both in relation to Part A and Part B. Quite apart from the interesting legal ramifications for Part B and the Nauo Overlapping Claim, proof of the amended claim in relation to the Part A area would require the applicant to prepare and adduce additional anthropological and lay evidence. Clearly that could not be done in advance of the current trial dates.

63    Even assuming the inclusion of the descendants of Mary of Streaky Bay in the claim group description was appropriate in an anthropological sense or any other sense, the applicant has not adequately explained why it has not sought to amend its Form 1 to secure the inclusion of those descendants in the claim group at an earlier time. When asked for an explanation, it was submitted by counsel that the applicant had not been served with the Form 1 in the Nauo Overlapping Claim until April 2019 and so counsel was not aware of the manner in which the claim group in that proceeding had been described. It was also submitted that the Nauo Overlapping Claim, filed on 30 March 2018, constituted a breach by the Nauo people of a settlement agreement entered into in 1999 pursuant to which a previous overlapping claim by them was resolved by a retreat in their claim boundary.

64    To the extent that these matters were raised to explain the proposed late inclusion of the additional apical ancestor in this proceeding they cannot be accepted for a number of reasons.

65    First, it is difficult to understand how the commencement of the Nauo Overlapping Claim or the composition of its claim group could have any bearing on how the claim group in Wirangu No. 2 should be composed, irrespective of whether the Nauo Overlapping Claim was commenced in breach of an earlier settlement agreement.

66    Over the course of two decades, the respective groups have made choices about how they define themselves and about how their respective claims should be formulated, prosecuted and compromised. Over that time, the proper identification of the ancestors has always been critical to the analysis of whether native title exists in the area and, if so, who the holders of the native title are. The applicant has been on notice for some time that the State would contest their claim on the basis of society and connection. If there are perceived “problems” arising out of the description of the claim group, they are problems that could and should have been the subject of active intellectual engagement by the applicant’s advisers well before the trial date was set.

67    To the extent that counsel complained that the applicant had not been served with the originating documents in the Nauo Overlapping Claim until after the trial dates for Part A had been set, there is no evidence to suggest that the applicant’s solicitor was not otherwise in possession of a copy of that document and could not have provided it to counsel for her timely consideration. The Form 1 in the Nauo Overlapping Claim is a publicly available document. It is a salient feature of the litigation that the applicant is represented by the South Australian Native Title Services Ltd (SANTS). SANTS is also the representative for the applicant in the Nauo Overlapping Claim. The legal practitioners on the files are Bianca Lena and Andrew Beckworth respectively. Mr Beckworth is the principal legal officer for SANTS. It is inconceivable that Ms Lena could not have obtained a copy of the Form 1 in the Nauo Overlapping Claim either from the public record, if not from the principal legal officer of SANTS. The submission that counsel could not otherwise become aware of the Nauo claim group composition until Mr Beckworth served the overlapping claim on Ms Lena should be roundly rejected.

OTHER PROPOSED AMENDMENTS

68    There are other amendments proposed to the Form 1 which, it is said, may be the subject of authorisation at the meeting on 2 August 2019. It is proposed, for example, that statements in the Form 1 that recognise or purport to recognise certain interests of the Nauo people within the claim area may be rephrased or removed. Counsel submitted that those amendments could not be made unilaterally, that is, without the approval of the Nauo people.

69    As far as the Court can presently ascertain, the schedules forming the subject of this submission do not affect the Part A area except in relation to a small portion of land falling within the Venus Bay Conservation Park. The proposed amendments, if made, would not involve any change to the claim area and so would not require notification. Furthermore, it has not been explained how the making of any such an amendment (assuming it were allowed) would alter the factual subject matter of the trial in a way that would justify the trial dates being vacated. It is difficult to see how the trial in Part A could be affected given that no member of the Nauo claim group has asserted rights or interests in the land within the boundaries of Part A in the manner required by the NT Act in any event.

OTHER MATTERS

70    The perceived or actual conflict of interest arising out of SANTS’ representation of both claim groups was the subject of comment by the Court in the course of oral submissions. The two claim groups are parties to contested litigation. There are allegations of breach of an earlier settlement agreement by one against the other. It may be inferred that the Nauo Overlapping Claim has been commenced and continued on the advice of Mr Beckworth of SANTS on the basis that the claim does not constitute a breach of that agreement and yet Ms Lena of SANTS has retained counsel who submits (I infer on instructions and advice) that there is such a breach. Whatever be the correct position, it is clear that the interests of SANTS’ two clients do not coincide.

71    The relevance of these concerns for the question currently before the Court is limited to the following. The joint authorisation meeting to be held on 2 August 2019 is one in which issues may arise that require independent legal advice to be given to each respective group. Issues clearly arise as to whether the authorisation of the descendants of Mary of Streaky Bay are required to affect any amendments of the Form 1 in Wirangu No. 2. When asked how the groups at that meeting might obtain independent legal advice in respect of the potentially contentious issues, counsel for the applicant could not say. It was not suggested that either group has given their informed consent for SANTS to act notwithstanding its apparent conflict of duties, but that was not the subject of evidence before me. For the purposes of this adjournment application, it is sufficient to say that the Court is confident that the joint authorisation meeting will result in the authorisation of an amendment to the Form 1 so as to include the descendants of Mary of Streaky Bay in the claim group for Wirangu No. 2 in a way that would jeopardise the trial dates. As I have said earlier, it is unclear why the authorisation of the Nauo claim group must be obtained for the less controversial amendment to the claim group discussed at [50] – [58] above in any event. The descendants of Mary of Streaky Bay are not included in that proposed amended description. It is doubtful whether the more general apical ancestor amendment would have the practical effect of including or excluding any present day descendent in any event.

72    As I have said, the published notice in respect of the joint authorisation meeting does not suggest the inclusion of the descendants of Mary of Streaky Bay in the Wirangu No. 2 claim group. Even if that option were raised and even if authorisation was given for it, it should not be assumed that the Court would grant leave for any such amendment to be made to the Form 1 in such close proximity to the trial of Part A. The proximity of the trial date would weigh against the grant of leave for an amendment of that kind, but I express no concluded view on the question. Its resolution would depend on all of the circumstances as they exist at the time of the application, should it be made.

CONCLUSION

73    The applicant submits that an order vacating the trial dates would best promote the overarching purpose of the Court’s practice and procedure provisions. Having considered all of the issues in combination, I cannot accept that submission. I conclude that the applicant’s advisers seek time to take a number of steps (at least one of which goes fundamentally to the framing of the applicant’s case) and that those steps could and should have been taken at a much earlier time, especially if they are as critical as they are now said to be.

74    It is important to recognise that these matters do not appear to be the fault of the claimants themselves. The people claiming to be the holders of native title in the Part A land are uniquely reliant upon their solicitors to advance and protect their interests in this proceeding. That is a matter to be given some weight in the exercise of the Court’s discretion, especially on a claim that potentially affects interests in land for all time. However, in the ordinary course, a party should be bound by the conduct of its solicitor, and a trial date should not be adjourned merely because of a desire in a party to now do things that its solicitor could and should have done at an earlier time. In all of the circumstances, I consider it appropriate to proceed on the basis that the applicant is bound by the conduct of its case by its advisers, notwithstanding that the applicant may be deprived of the opportunity to seek a different form of relief in the proceedings than might be the case if an adjournment were to be granted. If there is a potential for prejudice of that kind, that is generally a legal matter between the party concerned and its advisers.

75    It is important to emphasise, as Mortimer J did in Akiba, that the parties to this proceeding are publicly funded, as is the Court. The Part A matter has been progressed to a hearing to commence on 4 November 2019 on the case presently formulated in the applicant’s amended SFIC. That has occurred at considerable expense to the public and has consumed considerable judicial and administrative resources of the Court itself.

76    An amendment of the Form 1 to align the claim with the case pleaded in the SFIC would not be contested by any respondent, nor does there presently appear to be any reason why the Court should refuse leave to allow any such amendment, even if it were sought in close proximity to the trial. As I have said, an amendment of that kind would not require formal notification and so would not put the trial dates in jeopardy. To the extent that counsel referred to the possibility that other schedules to the Form 1 may be the subject of an authorised application to amend, the foreshadowed amendments, if allowed, would not affect the claim area, would not require formal notification, and so would not put the trial dates in jeopardy.

77    Any failure by the applicant to obtain authorisation for the other amendments would not affect its authorisation to prosecute the claim as it is presently articulated on its Form 1.

78    If a claim relating to the reverted parcels were to be filed, it may result in some 20 parcels of land being tried separately. From a case management perspective, the inconvenience of dealing separately with those parcels is outweighed by the other considerations to which I have referred and so does not justify the granting of the adjournment.

79    The application to vacate the trial dates should be dismissed.

Associate:

Dated:    26 July 2019

SCHEDULE OF PARTIES