FEDERAL COURT OF AUSTRALIA

Malone on behalf of the Western Kangoulu People v State of Queensland (No 2) [2020] FCA 1414

ORDERS

THE COURT ORDERS THAT:

1.    By 13 November 2020, the State of Queensland (State) is to file and serve a list of questions concerning the lay and expert evidence filed by the Applicant with the objective of clearly and fairly articulating the State’s grounds of objection to, or concerns about, the Applicant’s native title claim as relevant to the Separate Questions (List of Questions).

2.    By 18 December 2020, the Applicant is to file and serve a written response to the List of Questions together with a statement whether the Applicant intends to file and serve any further lay or expert evidence in the proceeding and the time by which any such evidence will be filed (Response to Questions).

3.    Within 45 days after receiving the Response to Questions or, if the Applicant has stated an intention to file and serve further lay or expert evidence, such further evidence, the State is to file and serve a reply to the Response to Questions which is to include a statement whether the State considers there is a credible basis upon which to negotiate a consent determination under the Native Title Act 1993 (Cth) (Reply).

4.    Within 14 days of the filing and service of the Reply, either party may file and serve a notice requesting that the Separate Questions be referred to mediation before a Registrar of the Court in which event, by force of this order:

(a)    the Separate Questions will be so referred pursuant to r 28.02 of the Federal Court Rules 2011 (Cth); and

(b)    the mediation is to be conducted within 30 days of the referral.

5.    The Applicant is to apply for the matter to be relisted for a case management hearing:

(a)    if neither party refers the matter to mediation under order 4, within 7 days after the 14 day period referred to in order 4 has expired; or

(b)    within 7 days after the conclusion of the mediation.

6.    There be liberty to apply on 3 days' notice.

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

REASONS FOR JUDGMENT

O’BRYAN J:

1    On 19 August 2020, I dismissed the applicant’s interlocutory application seeking an order striking out the response filed by the first respondent, the State of Queensland (the State), to the statement of facts and matters filed by the applicant. The background to the application and the reasons for my decision are set out in Malone on behalf of the Western Kangoulu People v State of Queensland [2020] FCA 1188 (Reasons).

2    As discussed in the Reasons, the applicant and the State have been at loggerheads about the future conduct of this proceeding, and particularly about the State’s role in the proceeding. Orders have been made for the hearing of separate questions concerning the existence of native title over the claim area, excluding issues of extinguishment (Separate Questions). Following a joint conferral, the expert anthropologists retained by the applicant and the State in the proceeding expressed agreement that the applicant holds native title in the claim area the subject of this proceeding. Notwithstanding that agreement, the State has informed the applicant that: it does not accept the conclusions expressed by the experts in the joint reports; it is not satisfied that there is a credible basis for the native title application; and, therefore, it is unwilling to negotiate a consent determination under s 87 of the Native Title Act 1993 (Cth) (NT Act).

3    While I dismissed the applicant’s interlocutory application, I also expressed the view that, consistently with its obligations under the NT Act and the Federal Court of Australia Act 1976 (Cth) (FCA Act), the State can and should do more to elucidate its concerns in relation to the applicant’s native title claim and to see if the applicant can resolve them to the State’s satisfaction. I ordered the parties to confer about further steps to be taken in the proceeding to facilitate conciliation of the claim and, within 28 days, file agreed orders or, if agreement cannot be reached, competing orders together with a submission of no more than 3 pages (the conciliation order). I explained the purpose of the conciliation order in the Reasons as follows (at [86] – [88]):

I consider that the determination of the Separate Questions has been delayed for an unacceptably lengthy period. I am also conscious of the disparity of resources between the applicant and the State and, particularly, the applicant’s limited resources. For the reasons explained above, I accept that the State has concerns in relation to the applicant’s claim which has caused the State to refuse to negotiate an agreement under s 87 of the NT Act. However, I consider that, consistently with its obligations under the NT Act and the FCA Act, the State can and should do more to elucidate its concerns and to see if the applicant can resolve them to the State’s satisfaction.

Section 37P of the FCA Act confers broad powers on the Court to give directions about practice and procedure in a proceeding in pursuit of the overarching purpose. It seems to me that, in the first instance, the parties should engage more meaningfully about the State’s concerns to see if those concerns can be allayed. Further pleading steps are very unlikely to be helpful. However, it may be helpful for the State to articulate its concerns about the applicant’s native title claim (as reflected in the Separate Questions) in a series of detailed questions to the applicant, based upon the lay and expert evidence that has been filed. The applicant might then have an opportunity to answer those questions by reference to the existing lay and expert evidence that has been filed and, to the extent it considers appropriate, to file further lay or expert evidence. Through a process of that kind, directed and supervised by the Court, the State may become satisfied that there is a credible basis for the claim.

If, ultimately, the parties are unable to reach agreement in respect of the applicant’s claim, the Separate Questions should be listed for hearing on the basis of the evidence that has been filed by the applicant, including any supplementary evidence. As noted earlier, the State will be entitled to cross-examine witnesses and make submissions in the hearing, subject to the Court’s usual powers of supervision. If at any such hearing it becomes apparent that the position adopted by the State on the Separate Questions is unreasonable, the Court has power under s 85A of the NT Act to make an appropriate order for costs.

4    Unfortunately, the applicant and the State have been unable to agree orders concerning the further steps to be taken in the proceeding to facilitate conciliation of the claim. It is an inauspicious start. Each party has filed competing orders and supporting submissions, and the applicant has filed an affidavit exhibiting the course of correspondence between the parties. The orders I will make are a mixture of the competing orders proposed by the parties. There were four primary areas of disagreement between the parties. My conclusions on each of those areas of disagreement are as follows.

5    The first area of disagreement relates to an application that has been filed by the applicant for leave to appeal against the orders I made on 19 August 2020. The applicant explained to the State in correspondence that, while it wished to keep open the opportunity to seek leave to appeal the orders made, it also wished to progress the further conciliation of its claim in accordance with the conciliation order. A successful conciliation would render the application for leave to appeal unnecessary. The applicant asked the State to consent to an extension of time in which to file an application for leave to appeal. The State declined to consent to such an extension. As a result, the applicant filed an application for leave to appeal. The applicant informed the State that, notwithstanding the filing of the application for leave to appeal, the applicant still wished to agree orders to progress conciliation of its claim in the hope that an agreed position might be reached on the claim. In response, the State has proposed that further conciliation should not commence until the application for leave to appeal, or any appeal arising from it, is determined. In its written submissions, the State submitted that, if leave were granted, and the appeal succeeded, any steps taken in the interim will have been wasted. It submitted:

Consistent with the aim of minimising costs incurred in the proceeding, and the avoidance of wastage by the parties and the Court, the State considers that the most sensible course is that the taking of any further steps await the outcome of the leave application, and if leave succeeds, then the appeal.

6    For the following reasons, I consider that the approach taken by the State is unreasonable and contrary to the overarching purpose stated in s 37M of the FCA Act. First, as the State must know, even if leave to appeal were to be granted and the appeal were to succeed, the orders that might be made by the Court as to the future conduct of the proceeding are uncertain. For that reason, it is an exercise in speculation as to whether the costs of the conciliation process will be wasted. Second, if the conciliation steps result in agreement between the parties, the costs of the application for leave to appeal will be avoided, thereby reducing costs. Third, even if the conciliation process does not result in the parties arriving at an agreed position, it is likely that the process will assist the applicant, and ultimately the Court, in clarifying the points of opposition to the applicant’s claim. Therefore, the process is likely to assist in the just resolution of the claim. Fourth, the State’s concern about the costs of the process are in any event unjustified. The further conciliation steps, in the manner explained in the Reasons, does not involve costs for the Court. In so far as the further steps involve costs for the applicant, the applicant has made it clear to the State that it wishes to pursue that pathway, and incur those costs, notwithstanding the application for leave to appeal. That is because the parties might get to the point of agreement on the claim and the application for leave to appeal could be withdrawn. Therefore, the only conceivable issue is the costs of the State. Given the role of the State in the proceeding, and the resources available to the State, that consideration does not carry much weight. It follows that the State’s position in seeking to defer the conciliation process until the application for leave to appeal is determined will bring about further delay in the progress of the claim for no justifiable reason. I therefore reject that position.

7    The second area of disagreement concerns the steps to be taken by the parties. Consistently with the Reasons, both parties propose that the first step is for the State to write to the applicant with a list of questions based upon the lay and expert evidence filed by the applicant. In relation to the applicant’s response, the applicant proposes there be a written response, a reply by the State and then mediation before a Registrar of the Court. The State proposes that the applicant should respond to the State’s questions and, at the same time, indicate whether it proposes to file any further lay or expert evidence in the proceeding. The State would then respond to any such material and advise the applicant whether it considers there is a credible basis upon which to negotiate a consent determination.

8    I generally prefer the steps proposed by the State. For some time, the State has advised the applicant that it does not consider that the evidence filed by the applicant is sufficient to establish the native title claim. If the parties are to reach agreement on the claim, the State needs to identify with clarity the perceived deficiencies in the applicant’s evidence, and the applicant needs to engage with the asserted deficiencies. Of course, and as reflected in the State’s orders, the applicant may choose not to adduce further evidence, but that step should be contemplated within the further process of conciliation. As the State submitted, there is utility in the applicant providing any further material that the applicant wishes to rely upon at the same time as its response, as this will ensure that the State is considering the actual evidence sought to be relied upon by the applicant when determining whether it is satisfied that there is a credible basis for a consent determination.

9    The third area of disagreement concerns the benefits of mediation between the parties. The applicant proposes a mediation before a Registrar of the Court before the matter returns for further case management. The State’s orders do not provide for mediation. I consider that mediation is desirable at the end of the conciliation process if either party seeks such a mediation. If the conciliation process, and mediation if sought by either party, fails to achieve agreement between the parties, a trial date will then be set for hearing the Separate Questions.

10    The fourth area of disagreement is whether the questions to be asked by the State, and the responses to be given by the applicant, should be exchanged on a without prejudice basis. The State proposes that the materials be exchanged without prejudice. The applicant says that the materials should be open. In my view, the materials should be exchanged on an open basis. As explained in the Reasons, the orders I will make are pursuant to s 37P of the FCA Act. They are case management orders designed to clarify the position of each of the parties in the proceeding, and enable the applicant to understand and respond to the State’s opposition to, or concerns about, the native title claim. The proposed orders are of the same nature as other case management orders such as for the filing of pleadings, particulars, interrogatories and evidence. While the proposed orders are intended to assist the parties in reaching an agreed position in relation to the applicant’s claim, the orders do not contemplate or require either party to make an offer of settlement or compromise. The parties are, of course, free to make any such offer, but that would occur outside and parallel to the conciliation steps contemplated by the proposed orders. For those reasons, there is no justification for the materials to be exchanged on a without prejudice basis.

Associate:

Dated:    1 October 2020