FEDERAL COURT OF AUSTRALIA

Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 3) [2020] FCA 401

ORDERS

THE COURT ORDERS THAT:

1.    The parties propose a set of draft orders to reflect these reasons.

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

EX TEMPORE REASONS FOR JUDGMENT

REEVES J:

1    By an application filed 3 February 2020, the applicant in this proceeding, the Authorised Applicant of the Clermont-Belyando Claim Group, has sought the following orders with respect to the claimant application it filed on 23 September 2019:

1.    The Applicant have leave to amend the Fourth Further Amended Claimant Application filed [23] September 2019 in the form and effect set out in the proposed Fifth Further Amended Claimant Application annexed hereto and marked “A”.

2.    To the extent necessary, an order under s 84D(4) of the Native Title Act 1993 (Cth) that the Court determine the Claimant Application as so amended.

3.    Adjourn the hearing of the application for the order referred to at [2] to a date to be fixed, being the date of closing submissions in the trial of the Claimant Application.

4.    Such other orders the Court considers just and necessary.

2    It is important to note a number of matters at the outset about this application. First, it was made on the 12th day of the trial of this proceeding, the Clermont-Belyando Native Title determination application. That trial commenced in early December 2019.

3    Secondly, this is the last in a series of changes of position by the Clermont-Belyando Applicant, or its predecessor, in the long and complex history of this proceeding. I recorded that history recently in an earlier application made during this trial (see [2019] FCA 2115 at [6]–[8]):

6    This proceeding relates to a native title determination application made on behalf of the Clermont-Belyando native title claim group. It is no understatement to describe it as an important and complex piece of litigation. Furthermore, like many, if not most, native title determination applications of its kind, it has an exceedingly long history. It was originally filed approximately 15 and a half years ago in 2004 on behalf of the Wangan and Jagalingou People. Since then it has been amended on a number of separate occasions. Apart from noting that is likely to explain some of the delay that has occurred in this proceeding over the past decade and a half, it is unnecessary to record the details of those amendments, or what it was that caused them to be made. The most recent set of amendments is, however, quite significant to these applications so I will describe them in some detail shortly.

7    By late 2017, when it became apparent that the application was unlikely to be resolved by a consent determination, I made orders aimed at achieving a trial of the proceeding in 2018. That trial was to proceed before Jagot J. For various reasons that are not presently material, it did not take place. In May this year, I set the matter down for a hearing to commence in Clermont in Central Queensland on 2 December 2019, at which time I was to hear evidence from lay witnesses. It was then intended that evidence would be taken from expert witnesses at a later and separate session in 2020.

8    On 31 August and 1 September this year, the newly described Clermont-Belyando claim group held a meeting to consider their claim. During that meeting, among other things, the claim group authorised and directed their applicant to apply to the Court to amend the description of the claim group for this application. Such an application is provided for under s 64 of the NTA and was anticipated in the trial programming orders made on 24 May 2019 (see Order 4). That amendment application was duly filed and, since it was not opposed, I made orders accordingly on 20 September 2019.

4    Thirdly, it should be noted that the present application does not have its origins in any concerns the respondent parties have raised about a disconnect between the content of the Clermont-Belyando Applicant’s originating application, or Form 1, and its second further amended statement of claim filed on 22 November 2019.

5    There are, in effect, three groups of amendments sought to the Clermont-Belyando Applicant’s originating application. As identified in annexure A to the present application, they are, first, to amend the description of the composition of the claim group in schedule A of Form 1 to add, after the list of eight apical ancestors, the following words:

… and who are recognised as members of the claim group under traditional laws and customs acknowledged and observed by them as having native [title] rights and interests in relation to the claim area.

6    Secondly, to amend the description of the native title rights and interests in schedule E to Form 1 to delete the reference to certain non-exclusive rights and interests and to replace them with a different description of those rights and interests. Thirdly, a number of amendments consequential upon the above. Only the first group of amendments and the third, to the extent that they depend on the first, are opposed by the active respondent parties, that is the State of Queensland and Ms Barnard and her fellow respondents. These reasons are, therefore, confined to the amendments proposed to schedule A of the originating application, or Form 1.

7    The apposite parts of the second further amended statement of claim relating to the description of the Clermont-Belyando Native Title Claim Group and its laws and customs relating to rights and interests in land are paragraphs 1(e), 7, 8, 9, and 10, as follows:

1.    In this statement of claim, subject to any contrary intention:

…

(e)    “the claim group” means the persons included within the description in [7]–[8] and Schedule A of the NTDA (the description in the NTDA prevails if, which is not admitted, it differs from the description in [7]-[8]);

…

7.    The claim group comprises the descendants of one or more of the apical ancestors and, as alleged at [12] below, hold native title in relation to the claim area under traditional laws and customs.

8.    The claim group members are descended from the apical ancestors being:

   (a)    Charlie McAvoy of Logan Downs;

   (b)    Lizzie McEvoy of Alpha;

   (c)    Jimmy Flourbag;

(d)    Billy and Lucy (parents of Jimmy Tarpot, Mary Ann Alboro and Mary Ellen);

(e)    Dan Dunrobin (also known as Dunrobin, Christopher Dunrobin and Dan Robin);

   (f)    Mary of Clermont (also known as Mary Johnson);

(g)    Frank Fisher Sr. of Clermont;

(h)    The mother of Jack (Girrabah) Malone and Jim (Conee) Malone;

and as at effective sovereignty:

(1)    on the basis of assertion by or traditions of the claim group, the available written archival record, the lay and expert material, as referred to in JER proposition 3;

(2)    each of the apical ancestors held rights and interests in the claim area under the traditional laws and customs identified in JER proposition 2 (being the laws and customs referred to at [16(2)] below);

as stated in JER proposition 3.

9.    Each:

(a)    person in the claim group who holds the common or group rights comprising the claimed native title is a member of one or more family or descent groups;

(b)    family or descent group belongs to the claim group and the family groups are a primary idiom for mutual recognition between claimants.

and:

(c)    surnamed the family groups are a primary idiom for mutual recognition between claimants, as stated in JER proposition 5;

(d)    the holding of rights is based on a broad form of descent reckoning and includes a degree of optation based on people’s histories of consociation with particular relatives, as stated in JER proposition 9.

10.    (1)    There is no single collective term for the claim group but the members of the claim group often refer to themselves and are referred to by other people as the “Clermont/Bilyanda [Belyando] People”;

(2)    The term or reference at (1) is indicative of a unifying and country based concept/label that forms part of the claimants’ customary means of self-identification;

as stated in JER proposition 5.

8    I should add that a number of deficiencies emerged during the hearing of the present application with respect to these parts of the second further amended statement of claim which need to be dealt with in any event before this trial proceeds further. I will return to those at a later point.

9    The expression “JER proposition” which appears throughout these paragraphs refers to the propositions contained in the Joint Experts Report filed 27 September 2018. While that report was produced with respect to an earlier version of this claim, the parties have relied upon it for the purposes of the current proceeding. The propositions mentioned in the above paragraphs are as follows:

2.    If so, what were the traditional laws and customs about rights and interests in relation to land and waters, including in the claim area?

3.    Did any of the following people hold rights and interests in the claim area under the traditional laws and customs identified at question 2?

(A)    Charlie McAvoy of Logan Downs

(B)    Liz McEvoy of Alpha

(C)    Jimmy Flourbag

(D)    Annie Flourbag

(E)    Billy and Lucy (parents of Jimmy Tarpot, Mary Ann Alboro and Mary Ellen)

(F)    Dan Dunrobin (also known as Dunrobin, Christopher Dunrobin, Dan Robin)

(G)    Maggie of Clermont (also known as Maggie Miller, Nandroo)

(H)    Mary of Clermont (also known as Mary Johnson)

(I)    Frank Fisher (Snr) of Clermont

(J)    Momitja

(K)    Daisy Collins

(L)    Nellie Digaby

(M)    The mother of Jack (Girrabah) and Jim (Conee) Malone

(N)    Katy of Clermont

5.    Do the members of the claim group constitute a society (or part of a larger society) that is united in and by their acknowledgment and observance of traditional laws and customs, referred to in question 1?

9.    What, if any, differences are there in the rights holding organisation at the time of the acquisition of sovereignty to any claimed rights holding organisation comprised by the claim group?

10    Three further matters should be noted at this point. First, the originating application, which long predated the Joint Experts Report, naturally did not refer to any of these propositions. Secondly, and more importantly, the phrase in the proposed amendment, “recognised as members of the claim group” (see at [5] above), does not readily correspond to the expressions used in [9] of the second further amended statement of claim (see [7(9)] above) and the Joint Experts Report propositions to which it refers, namely “mutual recognition between claimants” and “degree of optation based on people’s histories of consociation with particular relatives”. Finally, [9] of the second further amended statement of claim also does not directly refer to the traditional laws and customs of the Clermont-Belyando claim group, while the proposed amendment to schedule A does. I will return to these matters later in these reasons.

11    The State of Queensland’s opposition to order 1 is essentially based on prejudice. Specifically, it points to the prejudice it claims it has suffered, and will suffer, by having conducted the cross-examination of witnesses to date on the basis of the issues pleaded in the second further amended statement of claim. While it claims that prejudice cannot be fully addressed by placing conditions on the leave to amend, it contends that, should the amendment be allowed, it should, at least, be entitled to particulars of the persons or witnesses, past and future, whose evidence is affected by the amendment and particulars of the laws and customs referred to in the amendment.

12    Ms Barnard and her fellow respondents are opposed to the amendment because of the potential prejudice associated with the broadening of the issues in dispute, which they claim is likely to occur if the amendment is allowed. Like the State, they also contend that, if the amendment is allowed, they should be entitled to particulars concerning, among other things, the consociation mentioned in [9] of the second further amended statement of claim.

13    A claimant application in the form of Form 1 to the Native Title (Federal Court) Regulations 1998 (Cth) (the Regulations) is described as a “main application” in r 34.103(1) of the Federal Court Rules 2011 (Cth) (the Rules). Such an application is then prescribed by r 34.103(2), to be an originating application for the purposes of the Rules. Division 8.1 of the Rules deals with originating applications and Division 8.3 concerns amendments to such documents. Rule 8.21, which appears in the latter division, provides that an applicant may apply to the Court for leave to amend an originating application “for any reason” and it then lists seven possible reasons as follows:

(a)     to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding; or

  (b)    to avoid the multiplicity of proceedings; or

  (c)    to correct a mistake in the name of a party to the proceeding; or

  (d)    to correct the identity of a party to the proceeding; or

(e)    to change the capacity in which the party is suing in the proceeding, if the changed capacity is one that the party had when the proceeding started, or has acquired since that time; or

  (f)    to substitute a person for a party to the proceeding; or

(g)     to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:

(i)    out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or

(ii)    in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

[Note omitted]

14    It can be seen that reason (a) refers to the Court being able to determine “the real questions raised by the proceeding”; and reason (g) refers to adding or substituting a new claim for relief, or a new foundation in law for a claim for relief that arises in two defined circumstances.

15    It should be noted that the Clermont-Belyando Applicant did not rely on any of these reasons. That is not usually a concern to an applicant because it has been held that the words “any reason including” in this rule are sufficiently broad to encompass a wide range of circumstances which could justify an amendment (see McGraw-Hill Financial, Inc v Clurname Pty Ltd (2017) 123 ACSR 467; [2017] FCAFC 211 at [23]–[24]). Nonetheless, it would not be consistent with the overarching purpose of civil litigation expressed in Part VB of the Federal Court of Australia Act 1976 (Cth) (the FCA), nor the primary purpose of the Rules, namely to aid the attainment of justice (see Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492 at 504 per Griffiths CJ and Fernance v The Nominal Defendant (1989) 17 NSWLR 710 at 729 per Kirby P), nor what is implicit in the list of reasons above, for an applicant to make an application for an amendment which does not facilitate the just and efficient disposition of the litigation in question. Consistent with these principles, I consider that, in the present application, the Clermont-Belyando Applicant needs to show that there is some good reason for its proposed amendment such that it is in the interests of justice that it be made. For the reasons that follow, I do not consider it has done that.

16    The Clermont-Belyando Applicant claims that it needs the proposed amendments to make its Form 1 originating application conform to the case it has pleaded in its second further amended statement of claim. It needs to do that, so it claims, because, first, it has been held that an originating document such as an originating application marks out the range of relief a party may receive (citing Renowden v McMullin (1970) 123 CLR 584 (Renowden) per Barwick CJ and McTiernan J and Mount Isa Mines Ltd v The Ship “Thor Commander” (2018) 263 FCR 181; [2018] FCA 1326 (Thor Commander) per Rares J). Next, it claims it has been held that its further amended statement of claim cannot be treated as amending the Form 1 to make the two consistent (citing Dieri People v South Australia (2003) 127 FCR 364; [2003] FCA 187 (Dieri People) per Mansfield J). This means, so it contends, that its case as pleaded in [8] and [9], and particularly [9], of its second further amended statement of claim, about the composition of the Clermont-Belyando claim group, did not result in an amendment to the description of the composition of that group in schedule A to the Form 1 and the two documents therefore remain inconsistent.

17    Finally, it points to the High Court judgment in Water Board v Moustakas (1988) 180 CLR 491 at 497, where Mason CJ and Wilson, Brennan and Dawson JJ said, among other things, that:

In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged.

18    My reading of these authorities does not support any of the Clermont-Belyando Applicant’s contentions above. First, Barwick CJ and McTiernan J were in the minority in Renowden. According to the head note in the Commonwealth Law Reports, the majority judgment was to the opposite effect. That is:

… the causes of action on which a plaintiff relies are to be ascertained exclusively by reference to the statement of claim without regard to the endorsement on the writ.

19    Secondly, from my reading of Moustakas and Thor Commander, they do not deal with the consequences of an inconsistency between an originating application, or similar document, and a pleading, but rather whether or not an issue has been properly raised at trial. On that question, both judgments held that, while the content of the pleadings is an important determinant, others were the evidence adduced at trial and the way in which the trial had been conducted.

20    Finally, while Mansfield J concluded in Dieri People that, in the peculiar circumstances of that case, the amended set of particulars produced by the party concerned did not achieve an amendment to the claim as contained in the Form 1, that was essentially because of a long series of fundamental inconsistencies between that document and the requirements of the Native Title Act 1993 (Cth) (the NTA) and the Regulations. Those deficiencies are reviewed in some detail at [25]–[31] of Dieri People. Given that unusual factual context, I fail to see how that ruling obliges the Clermont-Belyando Applicant to amend its originating application in this matter.

21    To the contrary of the Clermont-Belyando’s Applicant’s contentions, on my reading of these authorities, I consider they establish that, in the circumstances of this matter, which has proceeded on pleadings for most of the various stages of its long life and is now in its third week of trial, it is the issues of fact and law pleaded in the statement of claim, not those raised in the originating application, or Form 1, that determine the boundaries of the dispute I have to determine. Moreover, picking up on the matters I mentioned earlier (see at [10] above), to introduce concepts into the originating application that do not correspond clearly to those in the further amended statement of claim, is likely, in my view, to create inefficiencies and delays in the progress of this trial that are the antithesis of the overarching purpose of civil litigation prescribed by ss 37M and 37N of the FCA. In short, I consider this matter should be tried according to the issues of fact and law pleaded in the second further amended statement of claim. If that requires the Clermont-Belyando Applicant to apply for leave to amend its second further amended statement of claim then, consistent with the overarching purpose, it has an obligation as a party to this proceeding to do that as soon as possible. For these reasons, I propose to dismiss the Clermont-Belyando’s application insofar as it relates to order 1 and Schedule A of Form 1.

22    That brings me to the other two orders it has sought. They both concern s 84D(4) of the NTA. That section provides:

The Federal Court may, after balancing the need for due prosecution of the application and the interests of justice:

(a)    hear and determine the application, despite the defect in authorisation; or

(b)    make such other orders as the court considers appropriate.

23    This provision is dependent for its operation on the circumstances identified in s 84D(3) as follows:

Subsection (4) applies if:

(a)    an application does not comply with section 61 (which deals with the basic requirements for applications) because it was made by a person or persons who were not authorised by the native title claim group to do so; or

(b)    a person who is or was, or one of the persons who are or were, the applicant in relation to the application has dealt with, or deals with, a matter arising in relation to the application in circumstances where the person was not authorised to do so.

24    Section 84D was considered most recently by Bromberg J in Ashwin on behalf of the Wutha People v State of Western Australia (No 4) (2019) 369 ALR 1; [2019] FCA 308 and by White J in Miller v State of South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599 (Miller). In Miller, White J said of the operation of that section (at [93]):

Section 84D has been considered in a number of decisions of the Court, including Akiba v Queensland [2010] FCA 643, (2010) 204 FCR 1 at [913]-[918]; Ashwin on behalf of the Wuth [sic – Wutha] People v State of Western Australia (No 2) [2010] FCA 1472, (2010) 191 FCR 549 at [21]; and Sandy on behalf of the Yugara/Yugarapul People v State of Queensland [2012] FCA 978 at [44]-[46]. Those decisions indicate that the matters which may be relevant to the exercise of the discretion under s 84D(4) may include the expense and inconvenience likely to be suffered by the party if the application is struck out and the applicant required to commence the process of bringing the application afresh; the public interest in litigation in the Court being conducted justly and as quickly, inexpensively and efficiently as possible; and the potential for delay in the determination of the existence or otherwise of the claimed native title rights. It may [be] accepted that the desirability of the Court being seen to encourage proper compliance by prospective claimants with the requirements of the NT Act is also a relevant consideration.

25    Curiously, while the Clermont-Belyando Applicant claims to fall within s 84D(3)(b), it did not explain clearly why that section applied and it did not produce any evidence to show which person has acted without authority and what matter arising in relation to the application is involved. During the hearing of this application, a deal of time was spent considering the issues of expense and inconvenience and the like, mentioned by White J in Miller, that may flow if questions about the authorisation of an applicant arise during a proceeding such as this. But until such time as the Clermont-Belyando Applicant clearly identifies how and why s 84D(3)(b) applies, I do not consider there is any necessity to address those issues, or the correlated provisions of s 84D(4).

26    Nonetheless, it is appropriate to make these observations. The Clermont-Belyando Applicant should not think that by raising this authorisation issue in this vague fashion at this stage of this trial that that will somehow avail it nearer its end. To delay raising that issue until later in this trial, as proposed order 3 seems to intend, does not sit well with the intent of the overarching purpose of civil litigation that I mentioned earlier. It therefore has an obligation, in my view, to frankly and promptly disclose the nature of its concerns about authorisation before this trial proceeds much further.

27    For these reasons, I will dismiss the Clermont-Belyando Applicant’s application insofar as it seeks orders 2 and 3. Since these conclusions dispose of all of the substantive orders sought in the Clermont-Belyando Applicant’s present application, subject to making orders on the unopposed aspects of order 1 (see at [6] above), I propose to order that the interlocutory application filed 3 February 2020 be dismissed. Accordingly, I direct the parties to bring in a set of orders to reflect these reasons.

Associate:    

Dated:    23 April 2020

SCHEDULE OF PARTIES