FEDERAL COURT OF AUSTRALIA
 FCA 1536
NORTHERN AUSTRALIAN PASTORAL COMPANY PTY LTD
DATE OF ORDER:
20 SEPTEMBER 2019
THE COURT ORDERS THAT:
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
NTD 6039 of 2001
Green & Ors obo the Mijibayu, Waanyi Jambarana & Waanyi (Puzzle Creek)
NORTHERN TERRITORY OF AUSTRALIA
COLONIAL AGRICULTURAL COMPANY
DATE OF ORDER:
20 SEPTEMBER 2019
THE COURT ORDERS THAT:
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This decision concerns the question of whether two applications for the determination of native title under the Native Title Act 1993 (Cth) (the NT Act) should be dismissed because they have not been, and will not be, prosecuted with reasonable diligence.
2 The two applications were commenced in 2001. They are known by the names Mount Drummond and Cresswell/Benmara, which are the names of pastoral leases over at least some of the areas to which the applications relate. The pastoral leases are in the eastern part of the Barkly Tableland. The applications are known generically as “polygon” claims. Paragraph  of Bulabul on behalf of the Kewulyi, Gunduburun and Barnubarnu Groups v Northern Territory of Australia  FCA 461 (Bulabul) sets out the reason why applications of the present kind are known as “polygon” claims.
3 The Northern Land Council (NLC) commenced each application on behalf of the respective applicants and remains the solicitor on the record in both matters. In 2001 and 2003, the NLC also commenced a large number of other applications for the determination of native title in respect of areas in the Northern Territory.
4 From their commencement until 2007, the two applications were, in accordance with the arrangements then applicable, primarily managed by the National Native Title Tribunal. On 13 March 2007, Mansfield J made orders pursuant to s 86C of the NT Act for mediation in Mount Drummond and Cresswell/Benmara (and in a large number of other applications) to cease. This Court then took over the primary management of the applications, as well as the other native title applications filed in the Northern Territory Registry. There were a large number of these applications.
5 Shortly thereafter, and following a series of directions hearings and meetings, the Court allocated the various applications commenced by the NLC into groups. Mount Drummond and Cresswell/Benmara were, with other applications, given the designation “Group 2”. On 27 October 2016, the Court divided Group 2 into two subgroups and classified Mount Drummond and Cresswell/Benmara, together with NTD6024/2001 Kiana Calvert and NTD6001/2002 Mallapunyah/Cresswell, as “Group 2A”.
6 It is the experience of the Court that polygon claims such as Mount Drummond and Cresswell/Benmara are not ever prosecuted to a determination. Instead, the claimant groups file fresh applications over areas with boundaries which correspond to, or are more closely aligned with, pastoral lease boundaries. Usually, before determinations are made on those replacement applications, the relevant polygon claims are discontinued. It is evident that the NLC contemplated a similar course being followed with respect to the Mount Drummond and Cresswell/Benmara applications. This means that those applications are unlikely ever to be prosecuted to conclusion in any event, and they have been kept on foot until replacement applications have been filed.
7 Progress in replacing many of the polygon applications has been slow. Paragraphs - of my reasons in Bulabul set out some of the detail concerning that progress in the period between 2007 and March 2017. It is not necessary to repeat it all presently.
8 In 2009 the NLC provided the Court with a program for the disposition of the applications it had commenced. If that program had been implemented, it would have seen all applications finalised by 2014, and all applications in Group 2 finalised by 2011. However, over the ensuing years the expected time for finalisation of the Group 2 claims was progressively extended: to 2012; to 2014, then (in 2014) to processes for addressing claims in a number of Groups not even being considered before 2015 and 2016, but with the prospect of consent determinations being made in 2017 or 2018.
9 Until April 2019, the Court conducted a callover every six months of all the native title proceedings filed by the NLC in the Northern Territory Registry. At these callovers, the Court periodically expressed its concern about the lack of prosecution of the majority of claims and warned the parties of its possible intervention.
10 In November 2015, Mansfield J informed the NLC that it should be providing a realistic timetable for the completion of all applications, including the Group 2 applications. At that same callover, the NLC informed the Court that, in the case of Group 2, there were a number of intra-mural disputes which the NLC would seek to mediate internally during 2016. In addition, the NLC said that it hoped to hold information meetings for Group 2 early in the dry season of 2016, so that applications to replace the polygon claims could be authorised in late 2016.
11 At the callover on 13 April 2016, Mr O’Donnell, the then Principal Legal Officer of the NLC, informed the Court that a “[m]ediation [of the intra-mural disputes] was conducted in October and was successful but it required further research and that further anthropological research [had been] undertaken last week and as we speak”. Mr O’Donnell assured the Court that the NLC was giving appropriate attention to the matters and that it hoped to have progress before the next callover.
12 At the next callover in October 2016, the NLC informed the Court that information meetings were scheduled to occur from October 2016 to July 2017 as a precursor to authorisation meetings for replacement applications concerning the Group 2A and Group 2B pastoral lease claims. The Court then made orders referring the matters to a case management conference before the Registrar, with a view to the parties identifying the timelines by which the steps to finalise the matters would be taken.
13 One year later in October 2017, the NLC informed the Court that, contrary to its previous expectations, no authorisation meetings had been held in the Group 2A matters due to the re-emergence of the previously mediated intra-mural dispute. The Court was informed that a large number of persons in the Group 2 matters had sought independent advice from Midena Lawyers and were asserting native title rights and interests other than in accordance with the proposed Group 2A pastoral lease claims. Orders were made maintaining the matters in case management, so that private discussions could take place between Midena Lawyers and the NLC.
14 At the 26 October 2018 callover, the Court was informed that the intra-mural dispute had not resolved and that, while it remained unresolved, the filing of pastoral lease claims to replace the polygon claims could not be progressed. In a further attempt to resolve the dispute, the applicants sought, and the Court made, an order referring the applicants in the four Group 2A matters to mediation before a Registrar. That mediation took place in Darwin over a three day period from 26 to 28 February 2019 but did not produce an agreed outcome.
15 At the callover in April 2019, the NLC sought the adjournment of the Group 2A matters in order to give it time in which to seek instructions for each application to be withdrawn. Counsel expressed confidence that the NLC would receive those instructions in relation to Kiana Calvert and Mallapunyah/Cresswell but was less confident that it would receive those instructions in relation to Mount Drummond and Cresswell/Benmara. The Court adjourned the Group 2A matters to a case management hearing on 22 May 2019, “in the expectation that the Applicants will by 4pm on Monday 20 May 2019 have informed the Court and the parties whether they are seeking leave to discontinue or some other order and noting that in the absence of an application for leave to discontinue or some firm proposal for the prosecution of the applications, the Court may list the matters for hearing of the question of whether they should be struck out for want of prosecution.”
16 At the case management hearing on 22 May 2019, the Court granted the applicants in Kiana Calvert and Mallapunyah/Cresswell leave to discontinue. Notices of discontinuance in each matter were filed on the following day. The position with respect to Mount Drummond and Cresswell/Benmara is different.
17 There are four persons who comprise the applicant in NTD 6039/2001 (Cresswell/Benmara). One of these persons died on 21 December 2017 and she has not been removed as an applicant. In his affidavit made on 20 May 2019, the NLC solicitor with carriage of the matter deposed to having received instructions from two of the remaining three persons comprising the applicant that they supported the discontinuance of the application. The fourth-named applicant, Jimmy Holt, has been receiving advice in relation to the application from Midena Lawyers. Mr Midena informed the NLC on 17 May 2019 that Jimmy Holt does not support discontinuance of the application. There is accordingly disagreement among the persons comprising the applicant in Cresswell/Benmara as to what should be done with that application.
18 Jimmy Holt is the sole applicant in NTD 6012/2001 (Mount Drummond). Mr Midena has also informed the NLC that Mr Holt does not support the discontinuance of this application either.
19 Although Mr Holt is the sole applicant, the underlying difficulties arising from the polygon nature of the claim and the intra-mural dispute mean that the NLC cannot prosecute NTD 6012/2001 nor put in place the necessary processes for the commencement of a replacement application.
20 At the case management hearing on 22 May 2019, counsel confirmed that the NLC is not in a position to prosecute further either NTD 6012/2001 (Mount Drummond) or NTD 6039/2001 (Cresswell/Benmara), or to file replacement applications, and that it had no plans to do so. Counsel for the NLC attributed the NLC’s position to the intra-mural difficulties in the claim groups.
21 The Court has been concerned for some time by the age of the two applications and the time which has elapsed without them being prosecuted actively. That concern became acute on the Court being told that the NLC would not be prosecuting these applications or replacement applications.
22 Accordingly, on 23 May 2019 I made orders listing these two matters for hearing on 3 September 2019 for consideration of whether they should, on the Court’s own motion, pursuant to rr 5.22 and 5.23 of the Federal Court Rules 2011 (Cth) (the Rules), be struck out for want of prosecution. I put in place a timetable for the filing of any affidavits and outlines of submissions to be relied upon in relation to that hearing.
23 No party has filed an affidavit or outline of submissions. Before the hearing on 3 September 2019, the NLC confirmed that, as the applicants in the two applications are “not in a position either to pursue the applications further, or to pursue replacement applications, or to seek leave to discontinue the action” the NLC did not propose to file any documents in connection with the hearing.
24 The Northern Territory also confirmed that it did not intend to file any affidavits or submissions and that it did not wish to be heard in relation to the striking out of the two applications for want of prosecution. The pastoralist respondents adopted the same position.
The Court’s power
25 In Bulabul, at - I discussed the Court’s power to dismiss an application for determination of native title by reason of want of prosecution with reasonable diligence. I do not understand the Full Court in Henwood v Northern Territory of Australia  FCAFC 182 (on appeal from Bulabul) to have expressed disagreement with what I said in those passages. It is accordingly convenient to repeat what I said in Bulabul.
26 Rule 5.22 provides for the circumstances in which a party will be “in default”. This includes the circumstance in which a party fails “to prosecute or defend the proceeding with due diligence”.
27 Rule 5.23 provides that, when an applicant is in default, a respondent party may apply to the Court for an order (relevantly) that the proceeding be stayed or dismissed in whole or in part and immediately or upon the satisfaction of specified conditions.
28 By r 1.40, the Court may exercise a power mentioned in the Rules “on its own initiative”. The power to dismiss in r 5.23 is one of those powers.
29 The discretion conferred by the Rules such as r 5.23 is broad and unconfined: Lenijamar Pty Ltd v AGC (Advances) Ltd  FCA 520, (1990) 27 FCR 388 at 396; Welsh v Digilin Pty Ltd  FCAFC 149 at . In Lenijamar, Wilcox and Gummow JJ said, in respect of a predecessor of r 5.23, at 395-6:
[T]he power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of “inordinate and inexcusable delay” on the part of the applicant or the applicant’s lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.
[T]wo situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant’s state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations …
30 There are several instances of the power to dismiss for want of prosecution being exercised in the native title context. These include Lawson v NSW Minister for Land and Water Conservation  FCA 8; Atkinson on behalf of the Mooka and Kalara United Families Claim v Minister for Lands for the State of New South Wales  FCA 1073; MT (dec’d) v State of Western Australia (No 2)  FCA 697; and Galway v Victoria  FCA 497. Several of these cases concerned prolonged inactivity by applicants in pursuing their claims. Thus, in MT (dec’d) v State of Western Australia (No 2), Barker J said at :
This then is not a case where there is some passing default that can be remedied, easily or otherwise. This is not a case where there is some technical failure to comply with orders made. This is not a case where a party comes forward and, by reference to satisfactory explanation, seeks an indulgence to remedy its default. Rather, this is a case where nothing of substance has been done by the applicant in advancing the case since the Bagshaw Report was made available to it and its constituent members more than 10 years ago, and nothing is likely to be done in that regard.
31 In Galway v Victoria, North J said at :
The decision to strike out the matter does not reflect upon the existence or otherwise of any native title rights which the group or the individual groups may have. Rather, this is a procedural decision which is based on the fact that the application has been on foot without significant progress for such a long time. The order to strike out the application is made because without progress it would be wrong to keep the parties returning to the Court for no good reason …
32 Finally, in Atkinson v Minister for Lands, Jagot J said at :
The diligence of the applicants in pursuing their funding application is also not to the point. These proceedings are not about funding. These proceedings concern the applicants’ substantive claims for native title over the subject land. The applicants, having been permitted to exhaust every opportunity to obtain funding to support the making of their claims, either are or are not in a position to prosecute those claims in these proceedings. If, as the history of the proceedings suggest, the applicants are not able to do so, then it is contrary to the interest or justice to permit the proceedings to consume yet more time and resources with no real end in sight.
33 The matters which I have recounted above make it almost inevitable that Mount Drummond and Cresswell/Benmara should be dismissed for want of prosecution with reasonable diligence. They have now been current for some 18 years with little action having been taken to prosecute them to conclusion. Further, the intra-mural disputes make it unlikely that the claimants will be able to prosecute replacement applications based on the pastoral leases over the areas to which they relate for some considerable time yet. The NLC has acknowledged, frankly, that it is not able to take action to prosecute either application or to bring replacement applications.
34 A dismissal of an application on the basis that it is not being prosecuted with reasonable diligence is not a decision on the merits of the claim and does not give rise to an estoppel in any subsequent proceedings brought by the claimants which are properly prosecuted: Western Australia v Fazeldean (on behalf of the Thalanyji People) (No 2)  FCAFC 58; (2013) 211 FCR 150 at -; Atkinson v Minister for Lands  FCA 1073 at  and Foster v Northern Territory of Australia  FCA 38 at .
35 As I recorded in Bulabul, the dismissal of proceedings for want of prosecution with reasonable diligence is a significant step and should not be taken lightly. That is especially so in relation to proceedings for the determination of native title. However, the circumstances of each of Mount Drummond and Cresswell/Benmara make an order to that effect appropriate.
36 Accordingly, the Court now orders that each of these two applications be dismissed because of the applicant’s failure to prosecute them with reasonable diligence.