Federal Court of Australia

The Nyamal Palyku Proceeding (No 4) [2022] FCA 284

ORDERS

THE COURT DIRECTS THAT:

1.    The parties include notations that reflect these reasons in the schedule being prepared by the parties setting out the extent to which objections have been conceded or upheld and the basis upon which particular evidence is to be received.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Various native title proceedings have been commenced in respect of land in the vicinity of the town of Nullagine in Western Australia. On 9 November 2020, orders were made in each of those proceedings for claims in respect of an area described in the orders as the Nyamal Palyku Proceeding Area (Area) to be heard together. Those orders also provided for the question of the identity of the persons holding native title in the Area (save for any question of extinguishment of native title) to be determined as a separate question.

2    The State of Western Australia accepts, subject to extinguishment, that native title rights and interests exist in relation to the Area and that the holders of those rights are to be found amongst the members of the Nyamal People and the Palyku People. Speaking broadly, the dispute to be resolved by the determination of the separate question concerns the competing claims to native title over the Area by each of the Nyamal People and the Palyku People.

3    Detailed case management directions have been made as to the conduct of the separate question including directions for the provision of lay and expert witness statements and for the notification of any objections to the receipt of evidence in the form set out in those statements. Save for objections in relation to a limited number of supplementary statements, those objections have now been resolved by a process of conferral or were the subject of rulings made at a hearing on 2 February 2022.

4    The parties are to provide a schedule setting out the extent to which objections have been conceded or upheld and certain limitations concerning the basis upon which particular evidence is to be received. However, there remains one outstanding issue arising from the objections. It concerns the extent to which certain findings made by Reeves J in determining an application to dismiss the claim by the Palyku People to the Area on the basis that it had no reasonable prospects of success or it was an abuse of process (and a statement said to be contrary to those findings) can be received into evidence upon the hearing of the separate question.

5    The application by the Nyamal People to dismiss the claim (Dismissal Application) was itself dismissed after a contested hearing before Reeves J in which there was a contest as to certain evidentiary matters: Nyamal Palyku Proceeding [2020] FCA 428. In reasons for dismissing the application, his Honour summarised the basis for the application by the Nyamal People: at [78]-[86]. Relevantly for present purposes, his Honour summarised the contentions advanced as the basis for the claim of abuse of process in terms that were to the following effect:

(1)    in the late 1990s the Palyku People lodged a native title claim (described in the reasons as the Palyku #1 claim);

(2)    the Palyku #1 claim was considered by the Palyku People to be a claim to the whole of their traditional country;

(3)    the Palyku #1 claim was well considered and was prepared with the involvement of senior Palyku People;

(4)    there had been a delay of 20 years until the lodgement of the claim to the Area (described in the reasons as the Palyku #2 claim);

(5)    the delay was prejudicial to the Nyamal People because of the unavailability of senior, knowledgeable Nyamal People who have since passed away and the disappointment and distress to Nyamal People who had pursued their claim to the Area up to the point where determination was imminent with no claim in those proceedings by the Palyku People to the Area;

(6)    an agreement had been struck between the Palyku and Nyamal participants on a field trip conducted in April 2001 whereby boundaries of the area of the Nyamal claim and the Palyku #1 claim were to be amended in a way that would not include a claim to the Area by the Palyku People; and

(7)    thereafter there was an agreement made in circumstances that were binding that neither party would bring any future native title claim over the claim area of the other.

6    In the context of the evidence led on the application and the extent of dispute between the parties as to these matters, his Honour then set out the 'central questions' for resolution on the application in the following terms:

(a)    Was an agreement made between the Palyku and Nyamal Peoples during the 2001 field trip and endorsed by the Palyku People thereafter that is binding on the Palyku People such as to constitute their current pursuit of the Palyku #2 claim as an abuse of process (the Binding Agreement Question)?

(b)    Were the claims the Palyku People lodged with the Tribunal in 1998 claims in respect of the whole of their traditional country such that pursuing the Palyku #2 claim in 2018 constituted an abuse of process (the Whole of Country Question)?

(c)    Have the Palyku People unreasonably delayed in filing the Palyku #2 claim and/or otherwise conducted themselves in the pursuit of that claim such as to cause unjustifiable oppression to the Nyamal People (the Unreasonable Delay Question)?

7    At the hearing before Reeves J, evidence was received from a number of witnesses by affidavit and there was cross-examination of witnesses. However, the hearing was conducted on the basis that cross examination would be limited to those matters which it was necessary to determine for the purpose of the Dismissal Application.

8    In dealing with the Binding Agreement Question, his Honour made a number of findings, including the following findings (made in the context described below):

(1)    At [205] (in dealing which an issue concerning which Palyku People could or could not speak for Nullagine and the areas north of it):

On that aspect, as regards Mr Christian, I accept the evidence of Mr Gallagher that his country was around Hillside Station (see at [110] above). That Station is located south-west of Nullagine. It was originally located in the claim area of the Nyamal #1 claim and was removed from that claim area in 2006 when the Nyamal People withdrew their claim boundary to the north. This was, of course, one of the outcomes of the 2001 field trip. However, having regard to the location of Mr Christian's country and Mr Gallagher's evidence that he tended to defer to others, particularly Mr Billy Dunn, when the discussion turned to Nullagine during the field trip (see at [106(24)] and [111]), I accept Mr Kevin Stream's evidence that Mr Christian could not speak for Nullagine and the areas north of it. Given that Mr Christian was the only senior Palyku man on the field trip, this provides a further explanation as to why there was no discussion of the Palyku claims to that area during the field trip.

(2)    At [206] (in dealing with the significance of the fact that plans had been made for certain people to go on the field trip, but in the end those people did not attend):

As for the other two senior Palyku men who were anticipated to go on the field trip, I accept Mr Gallagher's evidence that Mr Wabbie could speak for the country in and around Bonney Downs Station (see at [110] above). Bonney Downs Station or pastoral lease is located to the north-east of Nullagine. With respect to Mr Tommy Stream, Mr Gallagher's evidence was that his country was in and around Corunna Downs (see at [110] above). That evidence is consistent with the evidence of Mr Coppin (see at [112(5)] above). Corunna Downs is located to the north-west of Nullagine. Accordingly, with the qualification that Mr Wabbie may have also fallen into the same category, I am prepared to accept Mr Kevin Stream's evidence that his father, Mr Tommy Stream, was considered by the Palyku People to be a person 'who could speak on behalf of Palyku People for Nullagine and the areas north of there' (see at [116(16)]). Finally on this aspect, it should be noted that, from the outset of the Nyamal #1 claim, Corunna Downs fell within the claim area of that claim and it now also falls into the Palyku # 2 claim area.

(3)    At [228]:

First, and perhaps most importantly, the traditional country of Mr Christian, the sole senior Palyku man present on the field trip, was in and around Hillside Station to the south-west of Nullagine. He could not, as I have found above, therefore, speak for the country north of Nullagine. This is partly reflected by the fact that, during the field trip, he deferred to Mr Billy Dunn in respect of the country around Nullagine. It is, therefore, most unlikely, in my view, that he said anything of moment about the Nullagine Area during the field trip, much less that he made an agreement to withdraw the Palyku claim over that area. Furthermore, I think it is even less likely that he made a '[f]airly easy agreement that Nullagine is Nyamal', as the 4 May 2001 minutes seem to suggest.

(4)    At [239] (after referring to what was required to be done by the Palyku Applicant in relation to the Palyku #1 claim in order to meet the requirements introduced by amendments to the Native Title Act 1993 (Cth) in 1998):

In short, I consider it was these aspects of the new regime established by the 1998 amendments to the NTA that motivated the Palyku Applicant to take these steps with respect to its claim. It was not a desire to file a claim which described the whole of the Palyku People's traditional country. Even if that had been the desire, as the observations of Jagot and Mortimer JJ in Fortescue Metals Group at [108] above made clear, that would not, at least in the context of an abuse of process application such as this, have prevented the Palyku People from authorising an applicant to file a later claim to a different or more expanded claim area provided that they genuinely believed they held native title rights and interests in that new area. For these reasons, I do not consider there is any merit in the Nyamal Applicant's 'whole of country' contention. It follows that the second question posed at [87(b)] above must be answered in the negative.

(5)    At [262] (after referring to the lack of any active involvement in the Palyku #1 claim by three brothers (Kevin, Walter and Frederick Stream) as giving rise to responsibility for the delay in the bringing of the claim to the Area by the Palyku People):

There is a number of reasons why I do not consider this conduct played any significant part in creating the long delay mentioned above. First, while the Stream brothers have conceded that they were not actively involved within the Palyku claim group, the evidence shows that, as early as 2004, either Mr Frederick Stream, or Mr Walter Stream, presented their father's map to Ms Neale as evidence of their claims to the area now covered by that claim (see at [131]-[136] above). Secondly, as the review conducted earlier in these reasons shows, during the period up to 2005 there were, in any event, other far more senior Palyku men active within the Palyku claim group. It is also worth adding that there is no dispute that the three Stream brothers have been actively involved in the pursuit of the rights and interests that are central to the Palyku #2 claim in the 13 year period since about 2005. Thirdly, and perhaps most importantly, during the period up to about 2005, little, if any, effort appears to have been devoted to advancing any of the claims, that is, of either the Nyamal People, or the Palyku People. This is partly demonstrated by the evidence of Ms Neale that the research for the Nyamal #1 claim did not begin in earnest until about 2005 (see at [194] above).

9    It may be noted that the above findings were made for the purpose of determining whether there was an abuse of process or unreasonable delay in bringing the Palyku #2 claim of a kind that led to the conclusion that the Palyku #2 claim could not be advanced. As his Honour found that there had been no agreement of the kind alleged, the claim to summary dismissal was also dismissed.

10    Therefore, it can be seen that Reeves J was not considering any aspect of the merits of any underlying native title claim by the Palyku People in respect of the Area or the merits of the competing claim by the Nyamal People. His Honour made no findings for that purpose.

11    Initially, the Palyku People sought to have the above findings received into evidence pursuant to s 86(1) of the Native Title Act at the hearing of the separate question. It provides:

(1)    Subject to subsection 82(1), the Federal Court may:

(a)    receive into evidence the transcript of evidence in any other proceedings before:

(i)    the Court; or

(ii)    another court; or

(iii)    the NNTT; or

(iv)    a recognised State/Territory body; or

(v)    any other person or body;

    and draw any conclusions of fact from that transcript that it thinks proper; and

(b)    receive into evidence the transcript of evidence in any proceedings before the assessor and draw any conclusions of fact from that transcript that it thinks proper; and

(c)    adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (v).

12    Section 82(1) provides:

The Federal Court is bound by the rules of evidence, except to the extent that the Court otherwise orders.

13    However, upon hearing the objection both the Palyku People and the State adopted the position that the proceedings before Reeves J were not 'other proceedings' for the purposes of s 86(1). The Nyamal People submitted that the view to that effect 'appears to be correct'.

14    In consequence, instead of relying upon s 86(1) to admit the findings as evidence, the Palyku People relied upon the decision in Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334. In that case, six preliminary questions of law had been referred to a Full Court of this Court to be heard and determined before any other question in the proceedings: at [5]. The Full Court purported to answer two of the questions without any facts being agreed or found. The questions were formulated as mixed questions of fact and law. In the course of determining that the proper answer to the two questions was 'Inappropriate to answer' by reason that there was an insufficient factual foundation to answer the questions, the majority of the Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) considered the effect of the answers if they had been allowed to stand. In the course of doing so, their Honours said: 'Once an issue is determined at the interlocutory stage, and the trial continues, the primary judge's hand is tied in respect of all matters of fact and law involved in the determination'. A statement by Diplock LJ to that effect in Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642 was relied upon to support that view. In Fidelitas questions were referred by an arbitrator to the Court for determination. It was held that when the matter went back before the arbitrator the parties could not 'advance argument or adduce further evidence directed to showing that the issue was wrongly determined'. It may be observed that in both cases, the principle as stated was confined by the extent of the issue that had been determined.

15    In the present case, Reeves J did not finally determine a question or issue that formed part of any of the ultimate claims to native title. Rather, his Honour determined an interlocutory application of a different character. As has been noted, the interlocutory application had two aspects; (a) an application for summary dismissal on the basis of a claim that there were no reasonable prospects of the claim succeeding; and (b) an application for dismissal on abuse of process grounds.

16    Therefore, the reasoning in Bass does not apply as a basis to receive into evidence at the hearing of the separate question the contentious paragraphs in the reasons of Reeves J.

17    In the course of oral submissions concerning the objection, it was suggested that the Palyku Parties, in effect, were seeking to rely upon some form of estoppel to support the tender of the contentious paragraphs. In Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 the relevant principles were stated by French CJ, Bell, Gageler and Keane JJ at [20]-[22] in the following terms:

An exercise of judicial power, it has been held, involves 'as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons'. The rendering of a final judgment in that way 'quells' the controversy between those persons. The rights and obligations in controversy, as between those persons, cease to have an independent existence: they 'merge' in that final judgment. That merger has long been treated in Australia as equating to 'res judicata' in the strict sense.

Estoppel in relation to judicial determinations is of a different nature. It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.

Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as 'cause of action estoppel'. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as 'issue estoppel'. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a 'judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies'. The third form of estoppel is now most often referred to as 'Anshun estoppel', although it is still sometimes referred to as the 'extended principle' in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a 'true estoppel' and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

(footnotes omitted)

18    In Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, the High Court dealt with the circumstances in which an estoppel might arise where an issue is necessarily determined as a result of finally determining a particular claim as between particular parties. As to the general principles to be applied by reason of a determination made, the High Court approved of the following statement by Barwick CJ in Ramsay v Pigrim (1968) 118 CLR 271 at 276;

Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.

19    To the extent that Reeves J decided to dismiss the application by the Nyamal People for summary dismissal on the basis of the contention that the Palyku #2 Claim had no reasonable prospects of success, there has been no final determination of any issue. All that his Honour decided in dismissing that aspect of the Dismissal Application was not to accept the proposition that the Palyku #2 Claim had no reasonable prospects. Having regard to the nature of the application, it did not invite any final determination of any factual matter in an instance where the application was unsuccessful. There is only finality as to the outcome of an application for summary dismissal if the application is successful. Where, as here, if the application for summary dismissal is itself dismissed then there is no adjudication of the claim. There is simply a determination that the claim is sufficiently arguable that it should be allowed to proceed to final determination.

20    As to the application to dismiss on abuse of process grounds, it was an interlocutory application. It is common for findings to be made in dealing with interlocutory applications. In that context, it is usually the case that any factual issues are not being adjudicated with finality. Sometimes the reasons given may state expressly that the findings are provisional in character. But even where that course is not taken, it may be concluded from the nature of the application that such is their character. So, where factual findings are made for the purpose of deciding whether to make procedural orders or orders of a kind that will operate until trial those findings are not finally determinative.

21    In Spencer Bower and Hadley Res Judicata (4th ed, LexisNexis, 2009), two authorities are cited for the proposition that a res judicata may arise from the determination of an interlocutory application for dismissal for abuse of process: para 5.31. As was noted in Zetta Jet Pte Ltd v The Ship 'Dragon Pearl' (No 2) [2018] FCAFC 132; (2018) 265 FCR 290 at [36], the authors follow the English practice of using the term res judicata to apply to both a cause of action estoppel and an issue estoppel. The authorities cited are Renaissance Leisure Group Inc v Frazer (2001) 197 DLR (4th) 336 and Chambers v An Board Pleanala [1992] IR 134 SC. However, in Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235, it was held at [34] (Tate and Beach JJA and Robson AJA) that a decision that had been made not to stay proceedings as an abuse of process was 'interlocutory in the sense that it was not capable of engaging the principles of res judicata or issue estoppel', citing Tomlinson. Earlier, at [30], fn 30 their Honours distinguished Renaissance Leisure Group Inc v Frazer and the English decision in Bank of Scotland v Hussain [2010] EWHC 2812.

22    A claim that proceedings are an abuse is a matter that might be raised at the final hearing or at any earlier stage. Depending upon the nature of the abuse alleged, the claim, if upheld, may justify an order for a stay of a kind that may allow the commencement of fresh proceedings or it may justify a final determination that proceedings of the kind brought cannot be advanced at all and should be dismissed. It appears that the contentions advanced before Reeves J were in support of an order that would reflect a determination that the Palyku #2 Claim could not be brought at all. So, if the Dismissal Application had been upheld by Reeves J on the basis that the proceedings were an abuse then the Palyku People could not seek to proceed with the Palyku #2 Claim. In such a case, the dismissal would have been final in its operative effect. Therefore, it appears to be open to contend that as the Dismissal Application was itself dismissed, the Nyamal People could not maintain at the final hearing of the Palyku #2 Claim that it was an abuse of process (at least not on the basis of the same matters that were raised in the Dismissal Application or other matters that could and should have been raised at that time). On that basis, it might also be said that the dismissal of the abuse of process part of the Dismissal Application involved a final adjudication of the factual and legal issues necessary to reach that conclusion, such that it may give rise to an issue estoppel.

23    There is a further issue that arises when it comes to considering whether principles of estoppel of the kind described in Tomlinson may be relied upon to support (or oppose) an application for the determination of native title. It concerns the significance of the particular character of a determination of native title under the Native Title Act.

24    In Quall v Northern Territory of Australia [2009] FCAFC 157; (2009) 180 FCR 528, an application for the determination of native title had been dismissed on the basis that the proceedings were an abuse of process by applying principles of issue estoppel. There was an appeal against that decision. The Full Court (Moore, Lindgren and Stone JJ) applied the principles of issue estoppel in respect of findings that had been made in earlier native title proceedings. It was found at [45] that having regard to those earlier findings 'issue estoppel inevitably follows' and the appeal was dismissed.

25    In Dale v State of Western Australia [2011] FCAFC 46; (2011) 191 FCR 521 the Full Court was concerned with a claim under the Native Title Act that had been summarily dismissed by the primary judge on the basis that it disclosed no reasonable cause of action based, in part, upon findings made in earlier native title proceedings. In doing so, the primary judge had applied principles of issue estoppel. In their reasons on the appeal, Moore, North and Mansfield JJ said that they 'entertain real doubt that issue estoppel has any field of operation in applications for native title determination' but found that it was unnecessary to resolve that legal question: at [89]. Nevertheless, their Honours explained the reason for their doubt. In that regard, they said (at [90]-[93]):

(1)    their 'significant reservations' rest on the statutory framework which established the procedures for hearing native title claims;

(2)    as a principle of unwritten law, issue estoppel must operate consistently with the terms of any statute;

(3)    the Native Title Act provides for separate proceedings in respect of a particular area of land in respect of which a final order will bind the world at large, not just the parties to the litigation; and

(4)    in native title proceedings, it is not possible for an estoppel as to native title rights to operate as to some but not all parties to the proceedings.

26    Even so, the Full Court in Dale found that, based upon broader principles, there was an abuse of process that justified the decision by the primary judge to dismiss the application.

27    In Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177; (2019) 273 FCR 350, a subsequent decision by a five member Full Court, the following views were expressed concerning the statements made in Dale as to the application of principles of estoppel:

(1)    'The "considerations of finality and fairness" which inform the common law doctrine of estoppel in relation to judicial determinations … and are also at work in the wider and more flexible concept of abuse of process … will need to be applied rather differently in the context of the Native Title Act': at [111] (Jagot and Mortimer JJ).

(2)    '[T]he finding of abuse of process in Dale turned very much on the nature of the factual findings which had been made in the earlier decision in Daniel. On any view, what was sought was a re-litigation of factual matters determined against a native title applicant and claim group, which would apply to any land and waters over which they sought to have native title recognised': at [148] (Jagot and Mortimer JJ).

(3)    There was a sufficient basis to distinguish the case from Dale, emphasising that each case turns upon its facts and that where there are inconsistent determinations the question remains whether the inconsistency brings the administration of justice into disrepute: at [391]-[393] (Robertson and Griffiths JJ).

(4)    'It may well be that the principle [of finality developed in the context of private litigation] does not have the same operation in the context of the [Native Title Act], especially having regard to the public interest which it serves and the intention of the Act as stated in its Preamble. That intention includes the rectification of "the consequences of past injustices" and that "Aboriginal peoples and Torres Strait Islanders receive the full recognition and status within the Australian nation to which history, their prior rights and interests, and their rich and diverse culture fully entitle them to aspire"': at [572] (White J).

(5)    The provisions of the Native Title Act give determinations of native title an 'indefinite character' because they permit the Court in limited circumstances to revoke or vary a determination. Nevertheless, 'a determination of native title is not to be regarded as provisional, contingent, subject to some form of condition subsequent, or as being in some way akin to an interlocutory judgment'. So, '[w]hen a contention is made that the making of an application for the determination of native title constitutes an abuse of the Court's process by reason that it seeks a judgment which is inconsistent with an earlier determination, that contention is to be resolved by reference to the existing determination as it stands. The "indefinite character" of the determination does not alter that position': at [574]-[576] (White J).

28    Significantly for present purposes, each of the decisions in Quall, Dale and Fortescue Metals concerned a re-litigation of matters addressed in earlier native title proceedings in the course of determining a subsequent claim to native title. The issue that arises in the present case is different. It concerns the extent to which the determination of issues in the same proceedings (in the course of determining the Dismissal Application) might be relied upon at a subsequent hearing in those same proceedings of a separate question concerning the competing claims to native title over the Area.

29    In my view, having regard to the reasons I have given (and in the absence of some procedure for separate determination of the question of issue estoppel), it is a matter for submissions at the final hearing of the separate question as to whether, as a matter of law, there is some form of issue estoppel that arises from the adjudication of the Dismissal Application. For the purposes of advancing a claim of that kind as part of their case on the separate question, the Palyku People may refer to the reasons of Reeves J on that application. Equally, the Nyamal People may refer to any relevant aspect of the manner in which the Dismissal Application was conducted. However, whether the contentious paragraphs give rise to some form of estoppel (and thereby have significance for the scope of the factual matters in issue on the separate question) is a matter for determination at the hearing of the separate question.

30    It follows that the contentious paragraphs from the reasons of Reeves J are admissible for that limited purpose. They are not to be received as evidence of proof of the factual findings within them. Rather, the extent to which they may establish matters by way of some form of estoppel is a matter for submissions at the hearing of the separate question. If there is an estoppel that operates then it will be the nature and extent of that estoppel that will have significance for the findings to be made on the separate question. It will not be a matter of simply adopting the contentious findings of Reeves J as evidence on the separate question.

31    There is a further objection raised by the Palyku People to a witness statement of Ms Cheryl Yuline. One sentence in the statement is said to be contrary to findings by Reeves J in dismissing the Dismissal Application. For reasons that have been given, it is a matter for submissions at the hearing of the separate question as to whether there is some form of estoppel that arises from the contentious findings of Reeves J. If there is an estoppel then it would follow that evidence to the contrary could not be relied upon to contest the estoppel. In those circumstances, the evidence should be received on the provisional basis that it is subject to any determination that there is an estoppel that applies.

32    In those circumstances, the schedule of the objections to the evidence that have been upheld that is being prepared by the parties should include notations that reflect these reasons.

Associate:

Dated:    25 March 2021