Federal Court of Australia

Quall v Native Title Registrar [2021] FCA 865

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01(e) of the Federal Court Rules 2011 (Cth), summary judgment be entered for the respondents for the whole of the amended originating application.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    By an amended originating application filed on 7 June 2021, the applicant sought judicial review of a decision dated 26 February 2021 of a delegate of the Native Title Registrar to register the Kenbi Indigenous Land Use Agreement (Kenbi ILUA) pursuant to s 24CK of the Native Title Act 1993 (Cth) (NT Act). The first respondent, the Native Title Registrar, filed a submitting appearance save as to costs. On 21 and 24 May 2021 respectively, the Northern Land Council (NLC) and the Northern Territory, who are parties to the Kenbi ILUA, filed interlocutory applications seeking to be joined as respondents to this proceeding. Orders to that effect were made unopposed on 11 June 2021.

2    These reasons for judgment concern two interlocutory applications filed by the NLC and the Northern Territory on 18 and 22 June 2021 respectively, which, among other alternative orders, seek summary judgment and/or strike out of the whole of the amended originating application. Orders made on 11 June 2021 provided that these interlocutory applications would be determined on the papers without a further oral hearing. The applicant failed to file any evidence or submissions in response to the interlocutory applications in accordance with the orders dated 11 June 2021.

3    For the following reasons, I am satisfied that summary judgment should be entered against the applicant for the whole of proceedings.

The second and third respondents’ interlocutory applications

4    In its interlocutory application the NLC seeks in the alternative that:

(a)    pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) (2011 FCRs), the proceedings be dismissed on the grounds that the amended originating application discloses no reasonable cause of action or the applicant has no reasonable prospect of successfully prosecuting the proceedings;

(b)    pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), judgment be entered against the applicant in relation to the whole of the proceeding as the applicant has no reasonable prospect of successfully prosecuting the proceeding;

(c)    pursuant to s 11(7) of the Administrative (Judicial Review) Act 1977 (Cth) (ADJR Act) and r 16.21 of the 2011 FCRs, the amended originating application be struck out on the ground that it is evasive or ambiguous, is likely to cause prejudice, embarrassment or delay in the proceedings or fails to disclose a reasonable cause of action; or

(d)    pursuant to r 31.05 of the 2011 FCRs, the amended originating application be dismissed on the ground that it is not competent because it does not disclose a ground of review for the purposes of the ADJR Act.

5    The relief sought by the Northern Territory was in almost identical terms to the NLC, save that it also sought, in the alternative, an order that pursuant to r 13.01(a) of the 2011 FCRs, the amended originating application be set aside on the grounds that it does not set out any order which the applicant seeks from the Court nor specifies any grounds of review.

6    The common feature of both interlocutory applications is that the applicant’s amended originating application fails to disclose a reasonable cause of action. I accept the NLC’s contention that if I determined this provided the basis for summary judgment, it is unnecessary to consider the alternative orders sought by the NLC and the Northern Territory.

Procedural history and amended originating application

7    The applicant is self-represented, but it is evident from the materials before the Court that he has been involved in many previous judicial proceedings, including under the NT Act (see the cases referred to at [23] below). He filed an originating application for judicial review on 23 April 2021. This originating application stated that the applicant was aggrieved by the delegate’s decision to register the Kenbi ILUA and that it sought review of that decision. The originating application annexed a written statement by the applicant in support of the application, as well as an incomplete copy of the registration decision.

8    At the first case management hearing on 25 May 2021, at which the applicant failed to appear, the Court noted that the application failed to state any grounds of review upon which the delegate’s decision was impugned, nor did it set out the orders sought by the applicant in this proceeding. Orders were made providing the applicant with an opportunity to file and serve an amended originating application to remedy these deficiencies, and a copy of the transcript of the case management hearing was made available to him.

9    The amended originating application was filed by the applicant on 7 June 2021. It took the same form as the originating application, save that the applicant inserted a handwritten heading “AMENDED” on the originating application. The applicant also made further handwritten markings in the margins of the written statement annexed to the amended originating application. Despite having been previously notified of the deficiencies of the originating application, the amended originating application did not set out any ground of review or relief sought in the proceedings.

10    As submitted by the Northern Territory, the amended originating application takes the form of a discursive history of various land claims made in the region under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Based on these factual matters, it appears that the applicant asserts that the NLC failed, when performing its certification function under ss 24CK(2)(c) and 203BE(5) of the NT Act, correctly to identify all persons holding native title to authorise the Kenbi ILUA. In particular, the applicant alleges that the Dangalaba people holds native title on the Cox Peninsula (southwest of Darwin), which forms part of the land area covered by the Kenbi ILUA. This is confirmed by the final paragraph of the written statement:

To conclude the current Kenbi Land claim does not appropriately include the correct mappings, family, traditional sacred sites and process of a land claim as it was done by the people from Daly River region whose ancestors are not of this land and therefore is untrue and Darwin and Cox Peninsula is one Land – our Traditional Land, Laws and Customs. We reserve the Rights as Traditional Owners with Native Title Rights.

11    These assertions evidently challenge the delegate’s reasons for decision at [91]-[96], where she considered that it was not wrong for the NLC to take into account that the claims of the Dangalaba people had been rejected by findings by an Aboriginal Land Commissioner and this Court (see [23] below).

12    As submitted by the Northern Territory, the applicant’s proceeding appears to rely upon the Court’s jurisdiction under the ADJR Act.

Summary of relevant legal principles

13    The relevant legal principles guiding the exercise of the Court’s discretion summarily to dismiss a proceeding under s 31A of the FCA Act or r 26.01(e) of the 2011 FCRs are well settled. They were recently summarised in Kitoko v University of Technology Sydney [2021] FCA 360 at [56] per Griffiths J as follows:

(a)    The effect of s 31A is to lower the bar below that fixed by previous authorities for obtaining summary judgment. It is not necessary to demonstrate that a claim/defence be “hopeless” or “bound to fail” for it to have no reasonable prospects of success (s 31A(3) of the FCA Act; Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [17]-[26] per French CJ and Gummow J).

(b)    The Court must make a practical judgment as to whether the opposing party has reasonable prospects of success, one which is “real, not fanciful or merely arguable” (Spencer at [25] per French CJ and Gummow J);

(c)    Where the moving party establishes a prima facie case in support of summary judgment, the onus shifts to the opposing party to point to factual or evidentiary issues making a trial necessary (Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [127] per Gordon J).

(d)    Determination of an application for summary dismissal is a value judgment to be made in the particular circumstances of the case, in the absence of a full and complete factual matrix; in other words requiring a “practical judgment” of the case at hand. It does not require a “mini trial”, but rather a “critical examination of the available material to determine whether there is a real question of law or fact that should be decided at trial” (Australian Securities and Investment Commission v Cassimatis [2013] FCA 641; 220 FCR 556 at [46] per Reeves J).

(e)    The Court retains a discretion whether or not to determine proceedings summarily or to refer them to trial, albeit that this discretion must be exercised judicially (Cassimatis at [50] per Reeves J).

(f)    Notwithstanding that s 31A of the FCA Act sets a lower bar than previously stated for the summary determination of a proceeding, the power to enter summary judgment is not to be exercised lightly (Spencer at [60] per Hayne, Crennan, Kiefel and Bell JJ).

14    It is worth emphasising that, while the question of “reasonable prospects” is a question of substance not form (Karjniw v Newman (No 2) [2015] FCA 673 at [12] per Reeves J), an applicant will have no “reasonable prospects” of prosecuting a proceeding if the pleadings can appropriately be characterised as “groundless” (see Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [59] per Hayne, Crennan, Kiefel and Bell JJ).

15    It is also apposite to note the observations of Wigney J in Chandrasekaran v Commonwealth (No 3) [2020] FCA 1629 at [96] as to the central difference between the concept of summary dismissal and the striking out of pleadings:

Where the evidence shows that a person may have a reasonable cause of action or reasonable prospects of success, but the person’s pleading does not disclose that to be the case, the Court may be empowered to strike out the pleading under r 16.21, but is not empowered to summarily dismiss the proceeding under s 31A of the FCA Act: see White Industries Australia Ltd v FCT (2007) 160 FCR 298 at [47], referred to in Spencer at [23]. That said, a “failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success”: White Industries at [47].

Relevant parts of the statutory scheme summarised

16    The statutory criteria for the registration of an ILUA which has been certified by a representative Aboriginal/Torres Strait Island body (in this case the NLC) are set out in s 24CK of the NT Act, which provides:

24CK    Registration of area agreements certified by representative bodies

Registration only if conditions satisfied

(1)    If the application for registration of the agreement was certified by representative Aboriginal/Torres Strait Islander bodies for the area (see paragraph 24CG(3)(a)) and the conditions in this section are satisfied, the Registrar must register the agreement. If the conditions are not satisfied, the Registrar must not register the agreement.

First condition

(2)    The first condition is that:

(a)    no objection under section 24CI against registration of the agreement was made within the notice period; or

(b)    one or more objections under section 24CI against registration of the agreement were made within the notice period, but they have all been

(c)    one or more objections under section 24CI against registration of the agreement were made within the notice period, all of them have not been withdrawn, but none of the persons making them has satisfied the Registrar that the requirements of paragraph 203BE(5)(a), (b) or (c) were not satisfied in relation to the certification of the application by any of the representative Aboriginal/Torres Strait Islander bodies concerned.

Second condition

(3)    The second condition is that if, when the Registrar proposes to register the agreement, there is a registered native title body corporate in relation to any land or waters in the area covered by the agreement, that body corporate is a party to the agreement.

Matters to be taken into account

(4)    In deciding whether he or she is satisfied as mentioned in paragraph (2)(c), the Registrar must take into account any information given to the Registrar in relation to the matter by:

   (a)    the persons making the objections mentioned in that paragraph; and

(b)    the representative Aboriginal/Torres Strait Islander bodies that certified the application;

and may, but need not, take into account any other matter or thing.

17    Relevantly, with respect to s 24CK(2)(c), s 203BE(5) provides that in certifying an application for the registration of an ILUA, the representative body must be of the opinion that:

(a)    all reasonable efforts have been made to ensure that all person who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and

(b)    all the person so identified have authorised the making of the agreement; and

(c)    any conditions under section 251BA on the authority that relate to the making of the agreement have been satisfied.

Consideration and determination

18    For the following reasons, summary judgment should be entered for the respondents for the whole of the amended originating application pursuant to s 31A(2) of the FCA Act and/or r 26.01(e) of the 2011 FCRS.

19    First, as noted above, as a matter of both form and substance, the amended originating application fails to disclose any discernible grounds of review or orders sought. While the document annexed to the amended originating application raises a number of factual matters concerning the alleged native title rights of the Dangalaba people, it fails to engage at all with the delegate’s decision. It discloses no asserted grounds of legal error in the delegate’s decision, but rather merely seeks to impugn the evidence upon which the NLC certified the Kenbi ILUA for registration. Indeed, while this document refers to the registration decision, it does not engage with any of the conditions precedent to the delegate’s exercise of power under s 24CK of the NT Act.

20    Furthermore, as required by s 11(1)(b) of the ADJR Act, an application for judicial review must set out the grounds in s 5(1) which are relied upon for the application. The amended originating application does not comply with this statutory requirement, which plays a dual role of ensuring that parties are given notice of the case they are asked to meet, and to enable the Court to be satisfied that its jurisdiction is enlivened.

21    At its highest, the passage from the document annexed to amended originating application extracted at [9] above alleges that the “current Kenbi Land claim does not include the correct mappings, family, traditional sacred sites and process of a land claim …”. While it is not clear whether the “Kenbi Land Claim” means the Kenbi ILUA, this could be said to amount to an argument that the Registrar should not have been satisfied under s 24CK(2)(c) of the NT Act that the NLC, as the representative body, had made all reasonable efforts to ensure all persons who hold or may hold native title in relation to the land or waters in the area covered by the agreement have been identified (see s 203BE(5)(a)).

22    However, the Court’s function on a judicial review application is not to assess the merits of the delegate’s satisfaction of this requirement, but rather is to ascertain whether it was made according to law.

23    Secondly, this is not a case in which the evidence discloses that a reasonable cause of action may exist and therefore the Court should strike out the amended originating application, but should not proceed summarily to dismiss the proceedings (see Chandrasekaran (No 3) at [96] per Wigney J extracted at [15] above). The document annexed to the amended originating application does no more than make bare factual assertions about the claimed native title rights of the Dangalaba people in areas surrounding Darwin. As noted by the delegate’s reasons at [95], substantially similar claims have been rejected in an Aboriginal Land Commission report authored by Gray J in relation to the Cox Peninsula, and in other areas surrounding Darwin by numerous decisions in this Court (see Quall v Risk [2001] FCA 378; Risk v Northern Territory [2006] FCA 404; Quall v Northern Territory [2009] FCA 18; Quall v Northern Territory [2009] FCAFC 157; 180 FCR 528; Quall v Northern Territory [2011] FCA 1141; 286 ALR 374; Quall v Northern Territory [2012] FCA 677). As noted above, the applicant filed no submissions or evidence in response to the interlocutory applications which disclosed that a reasonable cause of action may exist.

24    Thirdly, and related to the second point, a further opportunity to file a further amended originating application would be futile and expose the respondents to further unwarranted expense (see Kitoko at [139] per Griffiths J). While acknowledging that the applicant is self-represented, he was notified of the deficiencies in the originating application dated 23 April 2021 and was given an opportunity to rectify those deficiencies. The amended originating application failed to remedy any of the critical deficiencies in the originating application.

25    I am mindful that there is a need for particular caution in considering whether summarily to dismiss proceedings instituted by a self-represented litigant (Dowling v Commonwealth Bank of Australia [2008] FCA 59 at [57] per Reeves J; Sullivan v North West Crewing Pty Ltd [2016] FCA 1130 per McKerracher J; Haque v Jabella Group Pty Ltd [2016] FCA 962 at [36]-[38] per Bromwich J). Regard must also be had to the interests of other parties and the overarching purpose of this Court’s practice and procedure provisions (s 37M of the FCA Act) to prevent the unnecessary waste of public and private resources (see Keenan v Bundaberg Port Authority [2016] FCA 134 [45]-[46] per Reeves J; Ferdinands v State of South Australia (No 2) [2017] FCA 1436 at [53]-[54] per Charlesworth J).

Conclusion

26    For all these reasons, summary judgment should be entered in favour of the respondents in relation to the whole of the applicant’s amended originating application. It is therefore unnecessary to consider the alternative orders sought by the NLC and Northern Territory in their respective interlocutory applications.

27    In their respective written submissions, the NLC and Northern Territory stated that they did press any orders for their costs in the proceedings. As noted above, the first respondent, the Native Title Registrar, filed a submitting notice save as to costs. There should be no order as to costs.

Associate:

Dated:    29 July 2021