Federal Court of Australia

The Nyamal Palyku Proceeding (No 3) [2021] FCA 215

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding Mavis Westerman & Ors v State of Western Australia & Ors (WAD 289 of 2018) is dismissed.

2.    Paragraph 2 of the interlocutory application filed 9 February 2021 is adjourned to a date to be fixed.

3.    On or before 24 March 2021, the Nyamal Additional Areas Applicant is to make and file an affidavit deposing to the following matters:

(a)    that it has the funding necessary to prosecute its claim to trial later this year;

(b)    that it has briefed, and will continue to brief, lawyers for that purpose;

(c)    that it will obtain the lay and the expert witnesses it considers necessary to establish its claim at that trial, and comply with the trial programming orders for that trial; and

(d)    that it has been made aware of the requirements of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and will fully abide by those provisions.

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    These reasons concern my attempt in December 2020 to break the case management impasse that appeared to have developed in this proceeding, the Nyamal Palyku Proceeding (WAD 392 of 2018). It is appropriate to begin by briefly recounting some of the long and complicated history of this proceeding. I can be brief because that history is set out in some detail at [4]-[44] of my decision on the Nyamal Applicant’s abuse of process application (Nyamal Palyku Proceeding [2020] FCA 428). I will refer to that decision hereafter as Allen.

2    The following features of that history are relevant for present purposes. First, as recorded in Allen at [20], the Nyamal Overlap claim was filed on 28 June 2018 in proceeding number WAD 289 of 2018. Secondly, as recorded in Allen at [21], on 31 August 2018, Barker J made orders aimed at achieving a trial of a separate question in the Nyamal Palyku Proceeding, with that trial to be held from about mid-2019. Thirdly, those orders required, among many other things, that the Nyamal Overlap Applicant and the Palyku Applicant were to each file their anticipated further claims by a date in October 2018 (see Allen at [21(e)]).

3    Fourthly, those orders also gave the Nyamal Applicant the opportunity to apply to summarily dismiss either or both of those claims once filed (see Allen at [21(e)]). Fifthly, as recorded in Allen at [22], those two claims were filed on 29 October 2018. In order of filing, they were the Nyamal Additional Areas claim (WAD 482 of 2018) and the Palyku #2 claim (WAD 483 of 2018). Sixthly, as recorded in Allen at [23], the Nyamal Applicant did not apply to dismiss either of those new claims.

4    Seventhly, however, the process of complying with the 31 August 2018 orders eventually led to the Nyamal Applicant applying to dismiss the Palyku #2 claim as an abuse of process and that led to the Allen decision. Shortly thereafter, and relatedly, the Palyku Applicant applied to withdraw certain admissions that it had made in compliance with the 31 August 2018 orders (see also Allen at [25]-[26]). As an aside, there was also a separate application concerning the tenure status of two areas within the Nullagine Overlap Area. That application only involved the Palyku Applicant and the State of Western Australia. These three applications were heard in 2019. As a result, the 2019 trial of the separate question in the Nyamal Palyku Proceeding did not eventuate.

5    Eighthly, nonetheless, as recorded at [27]-[28] of Allen, during 2019 there were consent determinations in the Palyku Part 2 proceeding and the Nyamal claims excluding the Nullagine Overlap Area. Finally, also during 2018 and 2019, the National Native Title Registrar twice refused to register the Nyamal Overlap claim on the Register of Native Title Claims under Part 7 of the Native Title Act 1993 (Cth) (the NTA). The Registrar also made a similar decision with respect to the Nyamal Additional Areas claim.

6    To complete this history, my decision in Allen was delivered on 22 March 2020. Then my decision in respect of the status of the two areas within the Nyamal Overlap Area was delivered on 5 June 2020 (Nyamal Palyku Proceeding (No 2) [2020] FCA 788). On 9 November 2020, after an amount of negotiations between the parties following the delivery of those two decisions, I made orders which essentially reset the 31 August 2018 trial programming orders for the separate question affecting the remaining proceedings in the Nyamal Palyku Proceeding. That trial is now planned to occur after July 2021.

7    There are presently five overlapping claims involved in that trial: the original Nyamal claim; the two Palyku claims; and what I will refer to as the other two Nyamal claims, that is the Nyamal Overlap claim and the Nyamal Additional Areas claim. The case management impasse I mentioned at the outset came to the fore as a result of the Nyamal Applicant and the Nyamal Overlap Applicant complying with Order 15 of my 9 November 2020 orders as follows:

On or before 7 December 2020, the Nyamal Applicant and the Nyamal Overlap Applicant file and serve a statement setting out the issue(s) in dispute as between them with respect to the land and waters the subject of the Nyamal Overlap Application and their legal representation.

8    The statement that was subsequently filed in compliance with that order stated that, “No dispute has crystallised as between the Nyamal Applicant and the Nyamal Overlap Applicant” and further that the two applicants were unable to resolve the issue about legal representation. At a case management hearing on 23 December 2020, I made the following orders to try to resolve that impasse:

1.    By close of business on 29 January 2021, the Nyamal #1 applicant and the Nyamal overlap applicant file any affidavit material and an outline of submissions (limited to ten pages) directed to the question of why the proceedings should continue in their present form.

2.    By close of business on 12 February 2021, any other party that wishes to participate in the hearing of that question file any affidavit material and an outline of submissions (limited to ten pages) directed to that question.

3.    The determination of that question will be fixed for hearing at 10.15 am (AEST) on 24 February 2021.

9    Two things should be noted about these orders. First, while there was discussion at the case management hearing on 23 December 2020 about the possibility of the Nyamal Applicant filing an application to strikeout the Nyamal Overlap claim, the orders did not specifically require that to be done. Instead, they required that the two sets of applicants state, more generally, “why the [Nyamal Palyku] proceedings should continue in their present form”. Secondly, the orders did not specifically refer to the Nyamal Additional Areas claim or, indeed, specify the proceedings concerned. That was so because, strictly speaking, there is only one proceeding in play, namely, the Nyamal Palyku Proceeding (WAD 382 of 2018). It is that proceeding that is being case managed towards the trial of a separate question which, as I mentioned earlier, is due to commence later this year (2021).

10    The date in order 1 of the 23 December 2020 orders above was later amended to 8 February 2021. On the day after that amended date, the Nyamal Applicant filed the present application. It seeks two orders: (1) to dismiss the Nyamal Overlap claim (WAD 289 of 2018); and (2) to dismiss the Nyamal Additional Areas claim (WAD 482 of 2018). Before turning to consider that application, it is important to define the issues that were alive at the time of the 23 December 2020 orders concerning, what I have described above as, the other two Nyamal claims.

11    The Nyamal Overlap claim (WAD 289 2018) overlaps both the Nyamal and the Palyku claims covering an area in and around the town of Nullagine in the north of Western Australia. Those three claims are together referred to as the Nullagine Overlap claims. For present purposes, it is important to note that, because the underlying claim group for the two Nyamal-related claims is the same, the Nyamal Overlap claim and the Nyamal claim involve a conflict between two different sections of the Nyamal claim group. Those two sections of the claim group had each authorised different applicants to pursue those claims. Those applicants had, in turn, instructed different groups of lawyers to represent them. This state of affairs was the primary cause of the case management impasse which was addressed by Order 15 of the November 2020 orders above and which led to the case management hearing on 23 December 2020 that I mentioned earlier.

12    The Nyamal Additional Areas claim (WAD 482 of 2018) is quite different. It applies to an area west of Nullagine which is currently described as the “saddle area”. There is no overlap between any Nyamal claims affecting that area. Instead, the overlap exists between the Nyamal Additional Areas claim and the Palyku #2 claim. Consequently, there is not the same conflict within the Nyamal claim group with respect to that area. There is also not the same difficulty with legal representation in respect of that claim.

13    As a result of the written submissions that were filed in compliance with the 23 December 2020 orders, it is now agreed by all the parties, including the Nyamal Overlap Applicant, that the Nyamal Overlap claim should be dismissed. Two things follow from that agreement. First, the primary cause of the case management impasse mentioned earlier will be removed once that dismissal is effected. Secondly, the present dismissal application now only applies to the less problematic Nyamal Additional Areas claim.

14    That brings me back to the present application. The ground of dismissal relied on by the Nyamal Applicant is s 190F of the NTA. The principles bearing on such an application were reviewed by Logan J in George on behalf of the Gurambilbarra People v State of Queensland [2018] FCA 1518. Those principles have been applied on a number of occasions since. They are summarised at [18]-[27] of the Nyamal Applicant’s written submissions in support of this application. There is no dispute between the parties about the accuracy of that summary so it is not necessary to rehearse those principles in any detail. In brief, ss 190F(6)(a) and 190F(6)(b) require, respectively, that all avenues for consideration or review of the Registrar’s decision not to accept the subject application for registration have been exhausted; and that there is no other reason why that application should not be dismissed.

15    The following is a very brief summary of the positions adopted by the parties on the present application. The Nyamal and Palyku Applicants submitted that the Nyamal Additional Areas claim should be dismissed under s 190F and to advance the overarching purpose of civil litigation in s 37M of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).

16    The State was neutral on this component of the Nyamal Applicant’s application.

17    While the Nyamal Additional Areas Applicant made an attempt at the hearing of this application to rely on an amended application under the first leg of s 190F(6) above, it subsequently abandoned that approach and relied entirely on the second leg, that is s 190F(6)(b). Under that leg, it submitted that there was another reason why its claim should not be dismissed, namely, as I understood it, maintaining the case management status quo that has prevailed in the overall Nyamal Palyku Proceeding for the past two years or more.

18    Whether this application is considered in the context of s 190F(6)(b) of the NTA, or as a case management issue affecting the efficient disposition of the separate question in the Nyamal Palyku Proceeding as required by ss 37M and 37N of the Federal Court Act, I consider the following matters comprise “another reason” why the Nyamal Additional Areas claim should not be dismissed and why not dismissing that claim is likely to assist the efficient disposition of the Nyamal Palyku Proceeding.

19    First, I consider Mr Blackshield has a point, that the Nyamal Additional Areas claim was compelled in the sense that it was originally filed in compliance with the orders of Barker J of 31 August 2018. Secondly, under the same orders, the Nyamal Applicant was given the opportunity to apply to dismiss the Nyamal Additional Areas claim once it was filed and it elected not to do so. Thirdly, in the two years or more that have elapsed since then, the Nyamal Additional Areas claim has been included, without objection from any other party, in the programming orders which had been made directed to bringing the separate question in the Nyamal Palyku Proceeding to trial. As I have already noted, that trial is now planned for some time later this year (2021).

20    Fourthly, for the reasons already mentioned, there is not a direct conflict within the Nyamal claim group with respect to the claim over the “saddle area”. To the extent there is a conflict, it relates to the Nyamal Applicant’s view that it should abide the understanding that it considers was reached with certain Palyku People about the location of the southern boundary of its claim. That conflict does not, in my view, raise the same issues with respect to legal representation, or pose the broader threat to the efficient disposition of the Nyamal Palyku Proceeding that the Nyamal Overlap claim did.

21    Fifthly, and importantly, if the Nyamal Additional Areas claim were to be dismissed at this stage, that may have consequences for the trial of the separate question in this proceeding later this year. The two most obvious are an appeal against such a dismissal decision, or the filing of a further overlap claim over the same area. The latter step is open and cannot be prevented. If it were to occur, s 67 of the NTA requires that the new claim be dealt with in this proceeding. In that event, there is likely to be some further delay in the trial of this proceeding. Finally, none of the parties submitted that allowing the Nyamal Additional Areas claim to proceed would result in a significant delay to, or complication of, the trial of the separate question in this proceeding.

22    So for these reasons, while I will make the first order sought by the Nyamal Applicant in its application filed on 9 February 2021, I do not propose to make the second. I will, however, adjourn that aspect of its application to a date to be fixed. Which brings me to one final aspect of the case management of this proceeding that came to the fore during the hearing of this application and which I consider requires addressing at this juncture.

23    Based on the stance adopted by the Nyamal Additional Areas Applicant to date, I have some concerns as to whether it will diligently prosecute its claim to trial in this separate question proceeding. If those concerns are valid, they are likely to disrupt the existing trial programming orders and frustrate the orderly advance of this proceeding to trial later this year. To attempt to remove that possible threat, I propose to order the Nyamal Additional Areas Applicant to file an affidavit deposing to the following matters:

(a)    that it has the funding necessary to prosecute its claim to trial later this year;

(b)    that it has briefed, and will continue to brief, lawyers for that purpose;

(c)    that it will obtain the lay and the expert witnesses it considers necessary to establish its claim at that trial, and comply with the trial programming orders for that trial; and

(d)    that it has been made aware of the requirements of ss 37M and 37N of the Federal Court Act and will fully abide by those provisions.

24    None of these requirements is particularly radical. While they may be somewhat pre-emptive, they simply reflect the requirements of ss 37M and 37N of the Federal Court Act. If, after considering the contents of the Nyamal Additional Areas Applicant’s affidavit, I still have concerns as to whether it will diligently prosecute its claim to trial, I will, most probably, relist the matter to receive further submissions on the second part of the Nyamal Applicant’s application. If that proves unnecessary, I will, in due course, dismiss that part of the Nyamal Applicant’s application in chambers with no order as to costs.

25    So the orders that I propose to make at this point are as follows:

1.    The proceeding Mavis Westerman & Ors v State of Western Australia & Ors (WAD 289 of 2018) is dismissed.

2.    Paragraph 2 of the interlocutory application filed 9 February 2021 is adjourned to a date to be fixed.

3.    On or before 24 March 2021 the Nyamal Additional Areas Applicant is to make and file an affidavit deposing to the following matters:

(a)    that it has the funding necessary to prosecute its claim to trial later this year;

(b)    that it has briefed, and will continue to brief, lawyers for that purpose;

(c)    that it will obtain the lay and the expert witnesses it considers necessary to establish its claim at that trial, and comply with the trial programming orders for that trial; and

(d)    that it has been made aware of the requirements of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) and will fully abide by those provisions.

Associate:    

Dated:    28 April 2021

SCHEDULE OF PARTIES