Federal Court of Australia

Gilla on behalf of the Yugunga-Nya People v State of Western Australia (No 2) [2021] FCA 1174

ORDERS

AND

THE COURT ORDERS THAT:

1.    Insofar as the interlocutory application filed on 11 August 2021 by the Yugunga-Nya applicant in WAD 230 of 2020 challenges the authorisation of the Gingirana #4 applicant in WAD 230 of 2020, and challenges the proceeding WAD 230 of 2020 as an abuse of process, that application be adjourned to the trial of the proceedings in WAD 29 of 2019 (Part B) and WAD 230 of 2020.

2.    The interlocutory application filed on 11 August 2021 by the Yugunga-Nya applicant in WAD 230 of 2020 be otherwise dismissed.

3.    The orders made on 16 March 2021 in WAD 29 of 2019 (Part B) and WAD 230 of 2020 are vacated.

4.    WAD 29 of 2019 (Part B) and WAD 230 of 2020 proceed to trial on all issues in relation to the area of land and waters in respect of which the two applications for determination of native title overlap.

5.    The proceedings WAD 29 of 2019 (Part B) and WAD 230 of 2020 be referred to case management before Judicial Registrar Daniel, for the purpose of the parties proposing a set of trial programming orders to the Court.

6.    The proceedings be listed for further judicial case management at a date to be fixed after proposed trial programming orders have been filed with the Court.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    These two proceedings involve native title claims over areas of land and waters in the west of the Central Desert region of Western Australia. The Yugunga-Nya proceeding (WAD 29 of 2019) was first filed in December 1999. The Gingirana #4 proceeding (WAD 230 of 2020) was filed far more recently, in October 2020. It seeks a determination of native title over an area of land wholly within the Yugunga-Nya claim area, covering approximately one fifth of the Yugunga-Nya claim. I shall call this area the overlap area in these reasons. The Gingirana People have an existing consent determination in their favour: see Atkins on behalf of the Gingirana People v Western Australia [2017] FCA 1465, and also other claims in Gingirana #3 (WAD 168 of 2021). The area in Atkins lies to the north of the overlap area.

2    By the start of 2021, and after some very long delays and periods where very little if any progress was made on the s 61 application, the reasons for which need not be addressed, the Yugunga-Nya proceeding was progressing towards a consent determination. Real progress had only been made in the years 2019-2021. On 16 March 2021, the Court convened a case management hearing jointly in both proceedings. At this time, the Yugunga-Nya proceeding was further progressed toward a consent determination.

3    Orders were made in both proceedings, referring the two proceedings to mediation before Judicial Registrar Daniel for the purpose of seeking to resolve the overlap between the two claims. By agreement of the parties, the orders made on that date included an order that there would be an experts’ conference, also convened by Judicial Registrar Daniel. To facilitate that conference, the Court ordered that:

All reports, expert work including genealogies and any other material relevant to the expert’s conference, is to be provided to each expert and Judicial Registrar Daniel on a confidential basis by no later than 31 July 2021.

4    It should be emphasised that this order, like the other orders made after the March 2021 case management hearing, was made with the agreement of all the parties. Arrangements were made for the experts’ conference to occur on 17-19 August 2021.

5    On 30 July 2021, the Yugunga-Nya applicant filed an interlocutory application in the Yugunga-Nya proceeding that the order extracted above be vacated, and replaced with an order in terms that were identical but for the inclusion that the materials should be provided to each of the applicants’ legal representatives in addition to the experts and Judicial Registrar Daniel. On 4 August 2021, Chambers were informed that the Yugunga-Nya applicant had communicated to the Court that it would not comply with the existing order until its interlocutory application had been considered and determined. By that date, by failing to provide the materials to the experts and to Judicial Registrar Daniel, the Yugunga-Nya applicant was already in default of the existing orders.

6    Ultimately, the outcome of this issue was that the Yugunga-Nya did not provide any materials required by the order, and the listed experts’ conference had to be vacated on the basis that the experts and Judicial Registrar Daniel had not had the opportunity to view the relevant documents. Further and consequently, the scheduled mediation has not occurred in relation to the overlap area.

7    On 11 August 2021, the Yugunga-Nya applicant filed an interlocutory application in the Gingirana #4 proceeding, seeking orders that the Yugunga-Nya applicant be joined as a respondent to the Gingirana #4 proceeding, and that the Gingirana #4 proceeding be:

(a)    struck out pursuant to s 84C(1) of the Native Title Act 1993 (Cth) on the basis that it does not comply with s 61 of the Native Title Act; and/or

(b)    summarily dismissed on the grounds that the proceeding is an abuse of process.

8    On 17 August 2021, the Court held another case management hearing. The Yugunga-Nya applicant and the Gingirana #4 applicant did not agree on the course which should be taken in relation to the interlocutory application. The State also sought an opportunity to consider its position on the appropriate course. Orders were made providing the parties an opportunity to file submissions about the appropriate course to be taken in dealing with the strike out application. As part of these orders, the Yugunga-Nya applicant was required to summarise the grounds for its interlocutory application in its submissions, so that the State and the Gingirana #4 applicant could understand better how the arguments were to be advanced.

9    The Court also required the parties to submit, as part of their written submissions, estimates of the costs of preparing for and arguing the interlocutory application, so that the Court could evaluate this as one factor in determining what was the appropriate course for the proceedings to take, in the light of s 37M and s 37N of the Federal Court of Australia Act 1976 (Cth).

10    Orders were also made pursuant to s 67(2) of the Native Title Act splitting the Yugunga-Nya application into Part A and Part B, Part B being the claim in relation to the overlap area, and pursuant to s 67(1), ordering that the Yugunga-Nya Part B and Gingirana #4 claims be dealt with together as a one proceeding. These orders enabled Part A of the Yugunga-Nya application to proceed towards consent determination, which is what is occurring.

The parties’ submissions in summary

The appropriate next steps

11    The State and Gingirana #4 applicant both submitted that the Yugunga-Nya interlocutory application should not be programmed to a hearing, and instead should be dealt with as part of a mediation or substantive trial, and that the next step in the combined proceeding should be to reschedule a mediation between the applicants.

12    The State filed an affidavit of Ms Sheila Begg in support of its submissions, affirmed 15 September 2021. That affidavit went to one aspect of the chronology which the State sought to emphasize and to which I refer below. The State’s position is that there is a genuine and substantive dispute between the Gingirana #4 applicant and the Yugunga-Nya applicant as to who holds native title in the overlap area, and therefore a summary dismissal hearing is not warranted.

13    The Gingirana #4 applicant submitted that it is apparent that there is a substantive dispute between the two applicants, which should be resolved through mediation and, in the event mediation is unsuccessful, a trial of the overlapped claims. The Gingirana #4 applicant submitted that the Yugunga-Nya applicant has not “indicate[d] an unwillingness to mediate” but “a preference … to deal with the strike out first”.

14    The Yugunga-Nya applicant submitted that the strike out application should be heard before any other steps are taken in the proceeding, referring to authorities which it contends support this course. The Yugunga-Nya applicant submitted that they “do not want to be forced to mediate with the Gingirana #4 applicant whose application they consider to be illegitimate and unlawful”. The Yugunga-Nya applicant also filed several affidavits in support of their application and submissions:

(a)    An affidavit of Mr Franklin Michael Gaffney, sworn 9 August 2021;

(b)    A second affidavit of Mr Gaffney, sworn 27 August 2021;

(c)    An affidavit of Ms Elaine King, sworn 25 August 2021;

(d)    An affidavit of Mr Leonard (Jeff) Barnard, sworn 25 August 2021; and

(e)    An affidavit of Ms Robyn Kelly, affirmed 31 August 2021.

15    In summary those affidavits deal with the following matters:

(a)    Mr Gaffney’s 9 August 2021 affidavit was filed with the interlocutory application setting out the basis on which the Yugunga-Nya applicant sought the orders for which it had applied.

(b)    Mr Gaffney’s 27 August 2021 affidavit deposed to the chronology of events immediately prior to and following the filing of the Gingirana #4 application and the Yugunga-Nya applicant’s surprise and disappointment that the Gingirana #4 claim overlapped the Yugunga-Nya claim area.

(c)    Ms King deposed that she is a member of the Yugunga-Nya applicant and claim group, and director of the Yugunga-Nya Native Title Corporation. Her affidavit described her being “extremely disappointed that the Gingirana No 4 claim was filed” on the basis that she had never known the Gingirana People to claim native title rights over the overlap area, and her belief that the Yugunga-Nya claim area had been “well settled” for 25 years. Ms King deposed to her belief that the claim was “motivated by other considerations”. Ms King described the chronology of events occurring to progress the Yugunga-Nya claim in 2021 and noted that she does not want to mediate the overlap dispute.

(d)    Mr Barnard deposed that he is a member of the Yugunga-Nya applicant and claim group, and director of the Yugunga-Nya Native Title Corporation. Mr Barnard’s affidavit described being “surprised” when he became aware of the Gingirana #4 overlap in late October 2020 when notified by Mr Gaffney, and disappointed that the Yugunga-Nya claim could no longer be finalised over the whole claim area as planned. He also deposed that he and the other members of the Yugunga-Nya applicant believed that the Gingirana #4 claim was “motivated by other reasons”. He deposed that it was well known among Aboriginal people in the area that the Yugunga-Nya application was moving toward a consent determination prior to the filing of the Gingirana #4 claim. Mr Barnard’s affidavit also set out a brief chronology of the legal steps taken in these proceedings in 2021, and his support for the Yugunga-Nya applicant’s choices.

(e)    Ms Kelly deposed that she is a member of the Yugunga-Nya applicant and claim group, and chairperson of the Yugunga-Nya Native Title Corporation. She deposed that she was “surprised” when she found out the Gingirana #4 claim had been filed as she had believed that the Gingirana People did not want any involvement with the Yugunga-Nya claim over the last 25 years, that she believed “their application was motivated by other matters”, and that there was “no explanation” to wait until now to file the application. Ms Kelly’s affidavit provided a brief chronology of relevant events in 2021, and described her support for the strike-out application.

16    Each of Ms King, Mr Barnard and Ms Kelly also deposed to their support for Mr Gaffney’s engagement with the Yugunga-Nya claim group and experience in working in native title with Indigenous people.

17    The Yugunga-Nya applicant submitted that it was appropriate to determine the strike out application prior to any further steps in the proceedings because:

(a)    The Gingirana #4 application was only recently filed, and so any defect in authorisation “should not be overlooked”: Hazelbane v Northern Territory of Australia [2008] FCA 291 at [13]-[14].

(b)    It is the “policy” of the Native Title Act that priority be given to strike out applications, and it is in the parties’ interests that they be heard before the main application: Williams v Grant [2004] FCAFC 178 at [56], [60] and Laing v State of South Australia [2012] FCA 676 at [11].

(c)    The issues on the strike out application are confined to the Gingirana #4 applicant’s delay in filing and alleged defects in the Gingirana authorisation process, and therefore should be dealt with prior to the main hearing: Thomas v State of South Australia [2004] FCA 951 at [18].

(d)    While there may be some complex evidence and argument required, that complexity is not a reason not to dispose of an application summarily: Hazelbane at [14].

(e)    The Court is unlikely to hear the main Gingirana #4 application for years, and this delay to the strike out application would be inappropriate. A purpose of s 84C is to prevent parties incurring expenses relating to an application that is fatally flawed: Reid v State of South Australia [2007] FCA 1479 at [60].

(f)    Central Desert Native Title Services has now cancelled all funding to the Yugunga-Nya application, such that the Yugunga-Nya applicant will be fully self-funded in any event.

18    Alternatively, the Yugunga-Nya applicant submitted that if a mediation is ordered, it should occur prior to the hearing of the strike out and be limited to the issues arising on the strike out application.

Summary of the Yugunga-Nya applicant’s substantive contentions on the interlocutory application

19    As I have indicated, the Yugunga-Nya applicant was required to outline its contentions on the strike out and summary dismissal applications. They should be set out, together with the responses of the Gingirana #4 applicant and the State. The nature and complexity of the contentions are a factor in the conclusion the Court has reached about the appropriate course to be taken.

Basis for summary dismissal: abuse of process

20    The Yugunga-Nya applicant submitted that the Gingirana #4 application is an abuse of process on the basis that, in contrast to the Yugunga-Nya proceeding which “has been on foot in some form since 29 October 1996”, the Gingirana People have never previously asserted native title in the area. Before the filing of the present application, no other application had been filed by the Gingirana People over the overlap area, and Gingirana had never involved themselves in or indicated a desire to be involved in any negotiations of development agreements or similar in relation to the overlap area.

21    The Gingirana #4 applicant submitted that the alleged abuse of process has not been particularised, lacks prima facie merit, and raises substantive issues that will require the hearing of evidence that would add to the cost and delay in the resolution of the combined proceeding. That is because whether the filing of the claim is an abuse of process is “highly fact dependent”. The Gingirana #4 applicant submits that the claim is not so unreasonably late that there is a prima facie abuse of process, and the mere lapsing of time between the Yugunga-Nya application and the Gingirana #4 application could not of itself be a sufficient basis to dismiss the Gingirana #4 application as an abuse of process.

22    If the Yugunga-Nya applicant’s case is that the Gingirana #4 application was filed for an illegitimate purpose, as is suggested by the affidavits of Mr Barnard, Ms King and Ms Kelly, the Gingirana #4 applicant would object to that evidence being adduced in a hearing of the interlocutory application or of the overlap dispute. The question is therefore likely to require cross-examination of Yugunga-Nya witnesses, and the Gingirana #4 applicant may seek to adduce evidence in response.

23    If the Yugunga-Nya’s applicant’s submission is that Gingirana #4 claim should be summarily dismissed because it causes the Yugunga-Nya applicant unjustifiable oppression or brings the administration of justice into disrepute, the Gingirana #4 applicant submitted:

(a)    It is disputed that the Yugunga-Nya claim “has been diligently prosecuted” since it was filed;

(b)    It is disputed that the Yugunga-Nya claim was “imminently about to be determined” in October 2020 when the Gingirana #4 claim was filed. There were significant outstanding issues yet to be resolved at that time;

(c)    The Gingirana #4 applicant did not delay unreasonably in bringing its claim, because any delay may be explained by a dispute with the State prior to the consent determination in Atkins about whether the land in Atkins (and, it is contended, approximately the western one third of the Gingirana #4 claim area) were subject to Western Desert laws and customs at sovereignty. That issue about the extent of Western Desert law having been resolved, the Gingirana #4 applicant has taken appropriate and timely steps toward filing the application, in the context that it was aware that there had been significant delay in the Yugunga-Nya application, and neither it nor its native title representative body, Central Desert Native Title Services, were aware until recently that the State proposed to enter into a consent determination with respect to the Yugunga-Nya claim area. Evidence that the Gingirana People asserted native title in the overlap area was adduced as part of the Gingirana preservation evidence hearing in March 2015, which preceded the Gingirana consent determination.

24    The Gingirana #4 applicant also submitted that determination of the interlocutory application first raises the potential case management issue of any appeal by whichever party is unsuccessful, which may cause delay in any event. It also submitted that it is clear some fact finding will be required on the interlocutory application and this could “pose difficulties for the subsequent hearing and determination of the substantive dispute”. I understand this to be a reference to the possibility that there may be a reasonable apprehension of bias if the same judge were to deal with the interlocutory application as deals with the substantive overlap proceeding.

25    The State submitted there was no apparent abuse of process. It supported the Gingirana #4 applicant’s submission that the determination of the application for summary dismissal would require significant fact finding, including possibly a finding that the Yugunga-Nya hold native title in the overlap area.

26    Both the State and the Gingirana #4 applicant referred to the principles summarised in Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104 at [124]-[133] in relation to when it may be appropriate to dismiss a native title claim for abuse of process. Both parties sought to distinguish the present proceeding from the facts of that case.

27    The State recognised that there has been a delay in the filing of the Gingirana #4 application, noting that the Gingirana consent determination occurred in December 2017 and there was a further 3 year period before the Gingirana #4 application was filed. However, given the in rem nature of a native title determination, the Gingirana #4 application ought only to be summarily dismissed in “a clear instance” of abuse of process, such as Lawson. The State submits that is not the case here.

Strike out application: compliance with s 61 of the Native Title Act

28    The Yugunga-Nya applicant alleged that there were significant defects to the authorisation of the Gingirana #4 application, namely that:

(a)    An insufficient number of people attended the authorisation meeting to be considered representative of the Gingirana #4 claim group; and

(b)    The authorisation meeting was not properly notified, on the basis that the descendants of several relevant apical ancestors were not notified, and there was no notification in any newspapers. The Yugunga-Nya applicant submitted that this notification process was designed such that people who are opposed to the application would not be notified and not attend the authorisation meeting.

29    The Gingirana #4 applicant submitted that the alleged failure to comply with s 61:

(a)    has to some extent already been dealt with in the National Native Title Tribunal as part of the registration process;

(b)    could be addressed through the discretionary powers in s 84D(4) of the Native Title Act;

(c)    even if it resulted in the Gingirana #4 claim being summarily dismissed, would not prevent the filing of a new claim following a further authorisation process that addressed the “technical issues” raised by the Yugunga-Nya applicant; and

(d)    otherwise raises substantive issues that should not be dealt with in an application for summary dismissal.

30    In relation to the Tribunal process, the Gingirana #4 applicant submits that on 20 November 2020, a delegate of the National Native Title Registrar decided that the Gingirana #4 claim failed the registration test under the Native Title Act, including because it was not properly authorised. However, on reconsideration, the Tribunal directed that the Registrar should register the claim, including because the member was satisfied that (at [99]):

the process adopted did ensure the persons who jointly comprise the applicant were authorised by all the other members of the Gingirana #4 claim group to make the application and to deal with matters arising in relation to it.

31    The Gingirana #4 applicant submitted that the Yugunga-Nya applicant and the State both made submissions as part of the Tribunal process. This decision, while not binding on this Court, is said to go to the prima facie merit of the Yugunga-Nya applicant’s allegation that the Gingirana #4 claim is not properly authorised. In order to determine the interlocutory application, the Court would therefore have to consider factual questions with regards to the authorisation process.

32    The State agreed with and adopted the Gingirana #4 applicant’s submissions on this issue.

Authorisation of the interlocutory application

33    The Gingirana #4 applicant raises the additional issue of whether the interlocutory application is itself properly authorised by the Yugunga-Nya applicant, noting Mr Gaffney’s evidence that the application was filed on instructions from or on behalf of 7 of the 10 members of the Yugunga-Nya applicant, rather than all 10 of them.

34    The State agreed with and adopted this submission, although it recognised that as soon as the amendments to the Native Title Act commence on 25 September 2021, made by the insertion of a new s 62C by the Native Title Legislation Amendment Act 2021 (Cth), an applicant can act by a majority of its members rather than unanimously. Given the commencement date of the amendments, this point raised by the Gingirana #4 applicant is overly technical and adversarial, and can be put to one side.

Costs

35    As requested, the parties included in their submissions their estimates of the costs involved in the hearing of the Yugunga-Nya interlocutory application. Accepting this as a difficult exercise, especially responsively for the State and the Gingirana #4 applicant, the estimates are an important factor in the Court’s decision-making, particularly given all parties are either dependent on public funds, or (in the case of the Yugunga-Nya applicant) funds intended to be applied for the benefit of all Yugunga-Nya People.

36    The Yugunga-Nya applicant estimated its costs as over $70,000, which included disbursements relating to travel and anthropologists’ fees.

37    The Gingirana #4 applicant contended this was a significant under-estimate. It submitted it is difficult for the Gingirana #4 applicant to estimate its costs without knowing what evidence will be adduced by the Yugunga-Nya applicant, and what evidence the Gingirana #4 applicant will need to adduce in response, including whether it will seek compulsive processes such as discovery and subpoena. The Gingirana #4 applicant submitted that, “assuming a fulsome hearing involving lay and expert witnesses”, its costs may be in the order of double the estimate in the Yugunga-Nya applicant’s submission.

38    The State estimated its costs as in the region of $20,000- $25,000.

Resolution

39    The parties present the choice for the Court as being between programming a complex interlocutory hearing on the Yugunga-Nya strike out and summary dismissal applications, and proceeding to a mediation of the overlap claims, ahead of a full trial if mediation is unsuccessful.

40    Having had the opportunity for careful reflection on the contentions put by the Yugunga-Nya applicant, the affidavit evidence filed, and the competing positions of the State and the Gingirana #4 applicant, together with a number of other factors to which I refer below, it is my opinion that the appropriate course is for the question of native title in the overlap area to go to trial on all issues, without mediation occurring first.

41    The affidavit evidence adduced on behalf of the Yugunga-Nya was somewhat formulaic, and I infer it was mostly drafted by the legal representatives. Nevertheless, each deponent has adopted it, so I give it weight. There are some key matters which emerge, which I accept:

(a)    A level of surprise and disappointment amongst the members of the Yugunga-Nya applicant and the wider claim group at the Gingirana People waiting until October last year to file a claim which would in part disrupt a long awaited consent determination process;

(b)    Heavy reliance by members of the Yugunga-Nya applicant on legal advice about the appropriate course to take at any given point in time, a matter to which I return below;

(c)    Contrary to the submissions of the Gingirana #4 applicant, a firm unwillingness to engage in mediation with the Gingirana #4 group at the moment.

42    The Yugunga-Nya People’s reaction to the filing of the Gingirana #4 application is understandable. The State’s submissions properly recognise the application was filed very late. While it is true that the Yugunga-Nya application may have languished for long periods of time since it was filed in 1999, there is no rational connection between that proposition and the very late filing of a claim by a different group in relation to the overlap area. It is correct to find that the Gingirana #4 application in respect of the overlap area is unacceptably late. That can and should have consequences for the case management of the matter; a higher burden is likely to fall on the Gingirana #4 applicant to conduct the dispute in relation to the overlap area in a particularly efficient and cost-effective manner, and strictly to adhere to court timetables, and to be cooperative and reasonable in its approach. While there may be similar expectations on any party, the point to be made here is that those expectations are greater where a party such as the Gingirana #4 applicant has chosen, I find, to prioritise other matters and to decide to make a claim which it can be taken to have known would adversely affect the conduct of another proceeding in this Court.

43    On the other hand, one of the unhappy lessons which could be learned from this situation is that if a claim group can remain functional, and focussed on its native title claim so as to progress it efficiently (even with compromises and accommodating intramural difficulties), then the likelihood of late competing claims “derailing” their claim is far reduced. It is the passage of long periods of time while intramural and intra-group disputes are allowed to simmer that causes the kind of situation in which the Yugunga-Nya now find themselves.

Applicable principles

44    I accept the Yugunga-Nya’s submissions about two matters of principle. First, that where evidence on the strike-out and the evidence on the main application may overlap, the court may consider hearing the strike-out application at the same time as the main hearing: Hazelbane at [15]. Second, that a clear purpose of s 84C is to avoid further expenses relating to an application that is “fatally flawed”, even though expense will be incurred on the strike out motion itself: Reid at [60] (Finn J).

45    Mansfield J’s observations in Hazelbane at [14]-[15] should be set out in full (with my emphasis):

It is, therefore, hard to resist the temptation of determining such a fundamental issue as authorisation before a full trial of the native title determination application with the very substantial resources which are then involved. To do so has the attraction of expedition and economy. Certain recent decisions of the Court have illustrated that proper authorisation is a matter which should not be overlooked, and the possibility of a challenge, at an early point in the proceeding: see e.g. Risk v Northern Territory [2006] FCA 404; Harrington-Smith v Western Australia (No 9) (2007) 238 ALR 1. The mere complexity of an issue, or the fact that extensive argument may be necessary to demonstrate that the claim is untenable, is not a reason not to dispose of an application summarily: General Steel Industries Inc v Commissioner for Railways (NSW) 112 CLR at 130 per Barwick CJ.

Section 84C(2) requires the Court to consider an application under s 84C(1) before any further proceedings take place in relation to the main application. But that does not require the Court to hear and determine the question as to whether the application has, in fact, been authorised as required by s 251B in all cases. It is only where the application is obviously without merit, that is, where there is no realistic prospect on the material before the Court of the authorisation being shown to have existed at the time it was purportedly granted, that an order will be made summarily dismissing or striking out the main application under s 84C. Sometimes an applicant faced with an application under s 84C may seek to amend the application to cure an identified deficiency (as discussed by Lander J in Williams v Grant at [57]). Where the application is not clearly without merit, so that it is not dismissed summarily or struck out, the Court may consider directing that an application under s 84C be heard and determined at the same time as the main application. That is a course of action which Wilcox J in Bodney v State of Western Australia [2003] FCA 890 at [45] suggested. The Court may also consider directing that the question of authorisation be heard and determined as a separate question, and be heard and determined prior to the hearing of the main application, under O 29 of the Federal Court Rules. That is a matter for each particular case and its particular circumstances. Whether such an order were appropriate would depend upon the extent to which there would be an overlap in the evidence likely to be called relating to authorisation and on the main application and a range of factors. The apparent attraction of expedition and economy may be misleading. Very often, the proposed evidence of authorisation is to be given by persons who also will give “connection” evidence and evidence of traditional laws and customs. There are often sound reasons in such circumstances why the separate trial of issues should not be ordered: Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406; Energy Australia v Australian Energy Ltd [2001] FCA 1049 at [8] per Stone J. There are also countervailing considerations of potential delay through splitting of issues and the separate processes which follow that course: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. So, not uncommonly, as occurred in both Risk and Harrington-Smith (referred to above) the issue of authorisation was heard and determined as part of the principal hearing of the main application.

46    These matters of principle are of central relevance to the present situation.

Authorisation challenges

47    The Gingirana People have a consent determination in their favour, and the authorisation of that claim can therefore be taken to have been accepted by the State and the Court. This is not a claim group which had some clear incapacity to authorise a s 61 application because of the make up or composition of the group. This is a claim group which has proven itself capable of bringing a properly formulated native title claim to fruition by way of a consent determination. The present circumstances are very different from cases such as Lawson, Reid and Hazelbane.

48    The question of inadequate notification, even if made out, could, and I find it is likely would, be addressed by a further authorisation process. One of two things could then happen – the Yugunga-Nya might then seek to challenge the authorisation again, in which case the resource effectiveness of having dealt with the first interlocutory application would be wasted or illusory. Or, the second authorisation process would be adequate and all that would have been gained was the lapse of a considerable period of time, probably more than a year, before the application got back to where it is now. In either case, with a claim group which already has a consent determination in its favour, I do not see the appropriate course as one which separates out challenges to authorisation. That is not to diminish the importance of authorisation, which the authorities properly recognise as central to the legislative scheme. However, all these issues are highly fact and circumstance dependent. In these particular circumstances, it is more appropriate for any challenges to authorisation to await trial.

49    That is especially so where it would appear the underlying allegation about authorisation is that there are families, or groups, who were not included in the authorisation process but who hold native title in the overlap area. In other words, allegations which go to the very issues likely to be in dispute in any trial about native title in the overlap area. That is a significant reason that the authorisation challenge should await trial, as is the likelihood of extensive evidence, including expert evidence, all of which to some extent will duplicate the evidence at trial.

50    The fact that the Tribunal on reconsideration accepted the claim was properly authorised is a factor supporting the approach I have otherwise determined to be appropriate. That is, the authorisation issues associated with the Gingirana #4 claim having been explored twice by a delegate of the National Native Title Registrar, it cannot be said the claim is so obviously defective that as a matter of priority the Court should consider the Yugunga-Nya’s challenges, notwithstanding the costs and delays in involved in that course.

51    Therefore, on the authorisation challenges, in my opinion the more appropriate course is for these issues to be dealt with as part of a trial.

Delay

52    In the circumstances I have described, the (accepted) filing delay in Gingirana #4 is not a matter which is clearly likely to justify the Gingirana #4 claim being summarily dismissed as an abuse of process. The State has expressly submitted (at [2]) that it considers there is a genuine dispute between the Gingirana #4 applicant and the Yugunga-Nya applicant about native title in the overlap area. That submission carries weight, given the wider responsibility of the State in relation to native title matters: see eg Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42 at [63]-[65].The State must agree to any consent determination in relation to the overlap area, so that there is no realistic prospect of a consent determination occurring in favour of Yugunga-Nya while the Gingirana #4 claim remains unresolved at a substantive level.

53    The situation in cases such as Lawson was very different – an enormous, negotiated settlement (the Yamatji Nation claim), combining many claims, of which Mr Lawson was well aware and had participated in, and an eleventh hour application designed to stop the imminent consent determination process, albeit based on Mr Lawson’s genuine beliefs. There was ample evidence of many opportunities for Mr Lawson to have made a claim at earlier times, which had not been taken.

54    Delay in the Gingirana #4 application as a basis to summarily dismiss the application as an abuse of process is not sufficiently tenable to justify the expenditure of costs, time and resources in listing such an argument for separate interlocutory hearing. If the Yugunga-Nya applicant wishes to press this at trial, it will be able to do so.

The “illegitimate purpose” arguments

55    There is no probative basis in the affidavit material for these allegations. They are, as the State submitted, no more than assertions. All the three individual members of the Yugunga-Nya applicant depose to are statements of their belief that the Gingirana #4 claimants were “motivated by other considerations when filing their claim” (Ms King); or “motivated by other reasons” (Mr Barnard); or “motivated by other matters” (Ms Kelly). This is an example of the relatively formulaic evidence in the affidavits. No further details are given for what amounts to no more than a suspicion without any expressed foundation, despite the Yugunga-Nya applicant being asked to outline the basis of the allegations which would be made on the interlocutory application.

56    The costs and delays involved in prioritising the interlocutory application are not justified by this allegation.

Other factors

57    I agree with the Gingirana #4 applicant’s submission that the costs estimate given on behalf of the Yugunga-Nya applicant may be an underestimate. However, even on the estimate given, the legal costs are significant, especially since on one side they are coming out of monies intended to be for the benefit of all Yugunga-Nya People. On the other hand, in my opinion the Gingirana #4 applicant may have been somewhat overestimating its own costs, especially in light of the State’s estimate. However, on any view the costs of the interlocutory application are likely to be well into six figures. Those are funds which could be spent on progressing the substantive claims to native title in the overlap area, in circumstances where access to funds is challenging.

58    While native title cases are not notorious for resolutions that are “quick” and “inexpensive”, the objective in s 37M of the Federal Court Act remains relevant. That objective must still be pursued, and considered in the Court’s exercises of discretion as to how matters should most appropriately proceed. More relevant in circumstances such as the present is the particular objective in s 37M(2), that disputes be resolved “at a cost that is proportionate to the importance and complexity of the matters in dispute”. In circumstances such as the present, the proportionate approach is to combine the more substantive challenges (being those brought under the category of authorisation) with the substantive process to resolve the question of who holds native title in the overlap area. One way or the other, that is the real issue between the parties which must be resolved. Through experience, the Court has learned that splitting off issues is not always conducive to the resolution of the ultimate dispute: see for example what has occurred in the overlap dispute between the Jurruru applicant and the Yinhawangka-Gobawarrah applicant in Smirke on behalf of the Jurruru People v State of Western Australia (No 3) [2021] FCA 112. After two separate question processes, the parties remain apart and the objective of timely determination(s) of native title in the overlap area remains unattained.

Mediation

59    I reject the submissions of the Gingirana #4 applicant that the appropriate course is to send the parties into mediation. The affidavit evidence from the three members of the Yugunga-Nya applicant satisfies me that, at the moment, that would not be an appropriate utilisation of the parties’ and the Court’s resources.

60    Further, the recent and deliberate non-compliance by the Yugunga-Nya applicant, on the advice of its lawyers, with the Court’s orders preparatory to the experts’ conference, and the scuttling of the mediation process which was to follow, demonstrate a somewhat oppositional attitude to negotiated processes, at least at this point. The preferable course is simply to have the question of native title in the overlap progressed to trial, on all issues.

61    The affidavit evidence suggests, as I have noted, that the members of the Yugunga-Nya applicant rely heavily on the legal advice they are given about the appropriate course to take. That is understandable. However the affidavits suggest in places that members of the Yugunga-Nya applicant may not have appreciated the (limited) purpose of the proposed experts’ conference, and may not have appreciated the opportunities which would come after it for them, and their lawyers, to consider the experts’ material and opinions: see my earlier reasons Gilla on behalf of the Yugunga-Nya People v State of Western Australia [2021] FCA 952 at [14]-[21]. It is unfortunate to say the least that the Yugunga-Nya applicant was persuaded out of its earlier agreement to these processes.

62    Nevertheless, this history suggests no likelihood of compromise from the Yugunga-Nya applicant, or the wider Yugunga-Nya claim group, about the overlap area, in the immediate future. It may be that the expensive, time-consuming adversarial processes which are involved in trial preparation need to be undertaken and experienced, before the Yugunga-Nya applicant and claim group might be prepared to again contemplate a negotiated outcome to the dispute in relation to the overlap area. No doubt an experience of these processes may also have some impact on the attitude of the Gingirana #4 applicant and its wider claim group.

63    The age of the Yugunga-Nya claim and the fact that both groups have (or will shortly have) consent determinations in their favour, both suggest that the most appropriate course is for the Court to assume that what is required from here on is that the parties will need to prove their respective cases about native title to the overlap area in the usual way, and have the dispute between them finally resolved by a decision of the Court, rather than by a compromise reached between them.

64    Recent experience across the Court, evident across a range of decisions, might suggest that separate question processes do not always have the utility and advantages they are initially considered to possess. In this case, there is already a highly adversarial attitude apparent on both sides, even in submissions about appropriate process: on the Gingirana #4 side, reliance on a technical and temporary point about the applicant giving instructions only by a majority of its members to bring the interlocutory application is a good example.

65    The most appropriate course is therefore to program the overlap dispute to trial, orders under s 67 of the Native Title Act having been made. The parties should be placed on a tight timetable, given the age of the Yugunga-Nya claim and the delays by the Gingirana #4 claimants in filing their overlapping claim. All legal representatives will be required to be pro-active and creative in considering ways to save time, resources and costs in trial preparation. There should still be an early experts’ conference, whether or not there are modifications to who has access to the material ahead of the conference. Programming orders will need to take account of the prospect of ongoing border closures, and preference should be given to using legal representatives and experts within Western Australia, or preparedness to work with legal representatives and experts remotely, as delays caused by these individuals being unable to travel to Western Australia are unlikely to be seen by the Court in these proceedings as acceptable reasons for further delay. There should still be further mediation, but at a later time after both sets of claimants have had an opportunity to consider the respective strengths and weaknesses of their evidentiary cases, as well as an opportunity to reflect further on how any present unwillingness to compromise is going to delay resolution of native title in the overlap area. All these matters should be discussed in the first instance in case management before the case managing Registrar.

Conclusion

66    Accordingly, the authorisation aspect of the interlocutory application by the Yugunga-Nya will be adjourned to the trial of the two proceedings in relation to the overlap area. Subject to any procedural fairness issues, and the existence of probative evidence at trial, the Yugunga-Nya applicant may be able to press a delay/abuse of process argument if it wishes to, and may well be able to resurrect an argument about improper purpose, as part of any abuse of process argument. How relevant and significant such matters may be by the end of a trial is difficult to predict, but a trial on “all issues” is just that. There will be orders that the proceedings be prepared for trial on all outstanding issues between the parties, and the parties will be ordered to attend case management before Judicial Registrar Daniel in the first instance to discuss and attempt to agree upon trial programming orders, including matters such as early experts’ conferences, the taking of lay evidence, the most cost and resource efficient ways to prepare any expert evidence, estimates of the length of trial and the number of witnesses.

67    Once the parties have filed a set of proposed programming orders (hopefully agreed, but if not, then reflecting their proposals where they differ), a judicial case management hearing will be listed for trial programming orders to be made, including a listing for the trial itself.

68    Since there have been orders made under s 67(1) of the Act in respect of WAD 29 of 2019 (Part B) and WAD 230 of 2020, in my opinion there is no present need for the Yugunga-Nya applicant to be joined as a respondent to the Gingirana #4 proceeding. That part of the Yugunga-Nya interlocutory application will also be dismissed.

Associate:

Dated:    28 September 2021

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