FEDERAL COURT OF AUSTRALIA

Brownley on behalf of the Gulgoordi-Garlgurla Wongi People v State of Western Australia [2024] FCA 208

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed pursuant to r 26.01(1)(d) of the Federal Court Rules 2011 (Cth).

2.    Any application by a Respondent for an award of costs against any person be filed and served on or before 22 March 2024.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    On 14 December 2023, Linden Brownley, Allison Dorothy Dimer and Donald Vincent Ballinger lodged a native title determination application under the Native Title Act 1993 (Cth) (NTA) on behalf of a group of Aboriginal people adopting the title “Gulgoordi-Galgurla Wongi People” for filing in the Court (GGW application). The GGW application was accepted for filing on 19 December 2023. The GGW application states that the Gulgoordi-Galgurla Wongi people acknowledge and observe the traditional laws and customs of the Wongi people. As discussed below, the asserted traditional laws and customs of the Wongi people is synonymous with the traditional laws and customs of the Western Desert.

2    The GGW application seeks a determination of native title in respect of an area of land and waters that takes in Kalgoorlie and Coolgardie in Western Australia, and is wholly within the boundaries of the Marlinyu Ghoorlie native title application (proceeding WAD 647 of 2017).

3    The Marlinyu Ghoorlie application is being heard by the Court together with that part of the Karratjibbin native title application (proceeding WAD 38 of 2022) which overlaps the Marlinyu Ghoorlie application. A joint trial in those proceedings is being conducted in respect of the area covered by the Marlinyu Ghoorlie claim (trial area) and in respect of separate questions which can be stated as follows:

(a)    But for any question of extinguishment of native title, does native title exist in relation to any and, if so what, land and waters of the trial area?

(b)    In relation to that part of the trial area where the answer to (a) above is in the affirmative:

(i)    Who are the persons, or each group of persons, holding the common or group rights comprising the native title?

(ii)    What is the nature and extent of the native title rights and interests?

4    In respect of the separate questions, the Court heard preservation evidence in February 2023, lay evidence in October 2023 and expert evidence in the week of 11 December 2023, all of which occurred before the GGW application was filed. Closing submissions are due to be heard in the week of 18 March 2024.

5    A map depicting the boundaries of the Marlinyu Ghoorlie application, the Karratjibbin application and the GGW application is attached to these reasons.

6    The filing of the GGW application is disruptive to the conclusion of the joint trial of the Marlinyu Ghoorlie/Karratjibbin proceedings. Section 67 of the NTA stipulates that:

If 2 or more proceedings before the Federal Court relate to native title determination applications that cover (in whole or in part) the same area, the Court must make such order as it considers appropriate to ensure that, to the extent that the applications cover the same area, they are dealt with in the same proceeding.

7    The effect of s 67 is to require the Court to deal with the GGW application together with the Marlinyu Ghoorlie and Karratjibbin applications. This is highly disruptive in circumstances where the trial of the Marlinyu Ghoorlie and Karratjibbin applications has been conducted for some 12 months (since the hearing of preservation evidence in February 2023) and is nearly complete. The trial has required substantial expenditure of time and resources by the parties and the Court.

8    On 6 February 2024, the first respondent to the GGW application, the State of Western Australia, filed an interlocutory application seeking an order that the GGW proceeding be dismissed as an abuse of process pursuant to r 26.01(1)(d) of the Federal Court Rules 2011 (Cth) and that there be liberty to apply for costs. The interlocutory application was supported by written submissions of the same date. The State has also filed an affidavit of Philip Ramsay, a solicitor in the State Solicitor’s Office, affirmed 6 February 2024, in support of its application.

9    On 7 February 2024, the individuals comprising the applicant in the Marlinyu Ghoorlie application filed an interlocutory application seeking the following orders:

1.    Henry Richard Dimer, Maxine Dimer, James Champion, Darren Indich, Simon Champion, Tania Champion, Darryl Trott and Leechelle Hammat (jointly the Marlinyu Ghoorlie Applicant) be joined as parties to this application.

2.    The application be dismissed on the grounds that is an abuse of process.

3.    Further and in the alternative to Order 2, the application be struck out pursuant to section 84C of the Native Title Act 1993 (NTA) on the grounds that it does not comply with the requirements of section 61 of the NTA.

10    The Marlinyu Ghoorlie interlocutory application was supported by an affidavit of Simon Charles Blackshield, who is the solicitor for the applicant in the Marlinyu Ghoorlie proceeding, affirmed 7 February 2024. The Marlinyu Ghoorlie applicant subsequently filed a further affidavit of Mr Blackshield affirmed 13 February 2024 and written submissions dated 14 February 2024. By the written submissions, the Marlinyu Ghoorlie applicant informed the Court that it does not press its application under s 84C of the NTA.

11    On 8 February 2024, I made orders addressing the requirements of s 67 of the NTA and timetabling the hearing of the interlocutory applications brought by the State and the Marlinyu Ghoorlie applicant. In respect of s 67, I ordered that:

Pursuant to s 67(1) of the Native Title Act 1993 (Cth) and r 30.11 of the Federal Court Rules 2011 (Cth), the Gulgoordi-Garlgurla Wongi People proceeding be case managed and heard together with the Marlinyu Ghoorlie proceeding and the Karratjibbin proceeding in relation to the Separate Question.

12    I also made an order that, pursuant to s 64, the persons constituting the applicant in the Marlinyu Ghoorlie proceeding, being Henry Richard Dimer, Maxine Dimer, James Champion, Darren Indich, Simon Champion, Tania Champion, Darryl Trott and Leechelle Hammat, be joined as the second to ninth respondents to the GGW proceeding.

13    I also made orders for the filing of evidence and submissions by the parties and listed the interlocutory applications brought by the State and the Marlinyu Ghoorlie applicant for hearing on 1 March 2024.

14    In opposition to the interlocutory applications, the GGW applicant relied on an affidavit of Linden Brownley sworn 21 February 2024. As noted above, Mr Brownley is one of the named applicants for the GGW application. Mr Brownley also advanced oral submissions at the hearing of the interlocutory applications.

15    For the reasons explained below, I am satisfied that the filing of the GGW application at this time is an abuse of the process of the Court. I will therefore dismiss the GGW application to enable the trial of the separate questions in the Marlinyu Ghoorlie/Karratjibbin proceedings to be completed uninterrupted by the GGW application. I will also give the State and the Marlinyu Ghoorlie applicant the opportunity to seek their costs of these applications against any person, including any third party adviser to the GGW applicants.

Background

16    The separate questions being determined in the Marlinyu Ghoorlie/Karratjibbin proceedings, whether native title rights and interests exist in relation to any of the land and waters of the Marlinyu Ghoorlie claim area and, if so, who holds the native title rights and interests, has been the subject of disagreement and conflict since the enactment of the NTA.

17    In the period from 2002 to 2004, the Court conducted a lengthy trial of a number of native title applications in respect of land and waters in the Goldfields region. One of the principal applications was the Wongatha claim which was brought on behalf of the “Wongatha people” and which claimed native title rights and interests in a large area immediately to the north and east of Kalgoorlie. The Wongatha people claimed to hold native title rights and interests under the traditional laws and customs of the Wongatha people which are shared with other members of the Western Desert cultural bloc. Another of the applications was the Maduwongga claim which claimed native title rights and interests in the Kalgoorlie and Coolgardie regions, as well as to the north and east of Kalgoorlie. The Maduwonnga claim was narrowly framed and was brought on behalf of the descendants of an ancestor called Kitty Bluegum. In 2007, all of the native title applications which were heard together with the Wongatha claim were dismissed in so far as they overlapped the Wongatha claim area: Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) [2007] FCA 31; 238 ALR 1 at [3998] (Lindgren J).

18    Since Wongatha, a number of successful native title applications have been brought in the areas covered by the former Wongatha claim. These include Murray on behalf of the Yilka Native Title Claimants v State of Western Australia (No 6) [2017] FCA 703, Forrest on behalf of the Nangaanya-ku Native Title Claim Group (Part A) v State of Western Australia [2021] FCA 1489, Harrington-Smith on behalf of the Darlot Native Title Claim Group v State of Western Australia (No 2) [2022] FCA 764, Lewis on behalf of the Nyalpa Pirniku Native Title Claim Group v State of Western Australia [2023] FCA 1294, Hansen on behalf of the Upurli Upurli Nguratja Native Title Claim Group v State of Western Australia [2023] FCA 1460, and Forrest on behalf of the Kakarra Part B Claim Group v State of Western Australia [2023] FCA 1461.

19    This is the fifth interlocutory judgment that I have been required to make in the Marlinyu Ghoorlie/Karratjibbin proceedings resolving disputes with respect to participation in the proceeding. In one of those judgments, Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 2) [2023] FCA 1060, I referred to evidence which showed that, since the commencement of the NTA, there have been some 33 historical native title determination applications filed within the central and northern Goldfields region, including over a significant portion of the Marlinyu Ghoorlie claim area, and which have not progressed to determination or even hearing. While it is unnecessary to trace that unfortunate history, it provides the backdrop to the Court’s efforts in recent years to bring the various applications that have been made over the Marlinyu Ghoorlie claim area to a hearing and conclusion.

20    A central matter that is disputed between Aboriginal people in the Goldfields region, and particularly in the region surrounding Kalgoorlie and Coolgardie, is whether the Aboriginal people that were in traditional occupation of the region at the time of assertion of British sovereignty acknowledged and observed the laws and customs of the Kapurn/Kalamaia, or the Western Desert, or both. This is a question that is raised for determination in the Marlinyu Ghoorlie/Karratjibbin proceedings, and has been the subject of expert evidence that has been heard by the Court in the proceedings. It is also a question that has been raised for determination in other proceedings brought in respect of the region surrounding Kalgoorlie and Coolgardie in recent years.

21    In determining the present application, it is necessary to provide an overview of the proceedings that have been brought in recent years in respect of the region surrounding Kalgoorlie and Coolgardie. While the matters referred to below have been referred to in many of the other interlocutory judgments in the Marlinyu Ghoorlie/Karratjibbin proceedings, it is important that they are restated as they explain why the filing of the GGW application at this time is an abuse of the process of the Court.

Marlinyu Ghoorlie claim

22    The Marlinyu Ghoorlie claim was filed on 22 December 2017 and entered on the Register of Native Title Claims on 28 March 2019. The claim group comprises those persons: who are descended from one or more of four apical ancestors, being Nellie Champion, Kadee, Warada, and Lucy Sambo, or those persons and their descendants who have been incorporated into the rights-holding group in accordance with its traditional laws and customs; who identify as Kalamaia, Gubrun, Kapurn and/or Kalaako (including alternate spellings of these names, or any combination of them); and who are recognised by other members of that group.

Maduwongga claim

23    The Maduwongga native title claim was filed on 21 April 2017, prior to the filing of the Marlinyu Ghoorlie claim. The Maduwongga claim was made on behalf of a group of people called the Maduwongga, which was said to comprise a distinct land-holding group descended from one apical ancestor named Kitty Bluegum. The Maduwongga claim was registered on the Register of Native Title Claims from 3 August 2017 to 1 May 2023. The two named applicants for the Maduwongga claim were Marjorie Strickland and her sister Anne Nudding. The Maduwonnga claim was, in effect, a re-enlivening of the Maduwonnga claim that was dismissed in Wongatha.

24    The area the subject of the Maduwongga claim stretched from its south-western corner near Coolgardie to a north-eastern boundary by the Edjudina Range. Relevantly, the claim area overlapped in the south-west with the Marlinyu Ghoorlie claim, and in the north-east with a claim seeking a determination of native title rights and interests on behalf of the Nyalpa Pirniku claim group in proceeding WAD 91 of 2019.

25    In late 2020 and early 2021, this Court heard evidence and submissions on a separate question, which was intended to determine a dispute between the Maduwongga applicant and the Nyalpa Pirniku respondent as to who held native title rights and interests in relation to the overlap area between the Maduwongga claim and the Nyalpa Pirniku claim. The separate question was whether Kitty Bluegum held rights and interests under the normative system of traditional laws and customs of the Western Desert or a distinct land-holding group (called Maduwongga) of which Kitty Bluegum’s descendants are the only identifiable surviving members.

26    By orders made on 27 March 2023, the Court determined that the apical ancestor of the Maduwongga applicant, Kitty Bluegum, held rights and interests in the relevant overlap area under the normative system of traditional laws and customs of the Western Desert, but not under the normative system of a distinct land-holding group of which her descendants are the only identifiable surviving members: Strickland on behalf of the Maduwongga Claim Group v State of Western Australia [2023] FCA 270 . As a result of that decision, the Maduwongga claim was dismissed on 28 April 2023 on the basis that there was no separate land-holding group known as Maduwongga.

27    Although not directly relevant to the present GGW application, I note for completeness that the Court recently dismissed an application brought by Jacqueline Spurling in October 2023 to be joined as a respondent to the Marlinyu Ghoorlie/Karratjibbin proceedings: see Dimer on behalf of the Marlinyu Ghoorlie Claim Group v State of Western Australia (No 5) [2023] FCA 1417. Ms Spurling is the daughter of the first named applicant in the dismissed Maduwongga claim. Ms Spurling applied to be joined as a respondent to defend her asserted native title rights and interests in the trial area, being asserted rights and interests that were (necessarily) inconsistent with those asserted by her mother in the Maduwongga claim. I refused to permit the joinder of Ms Spurling at that stage of the proceedings because of the material prejudice that would be caused to the Marlinyu Ghoorlie applicant and the State by her joinder.

Jardu Mar claim

28    The Jardu Mar native title claim was filed on 14 January 2021. The claim was made on behalf of the “Jardu Mar People” who were described in the application as being those persons who:

(a)    have a connection with the land and waters of the claim area in accordance with the traditional laws acknowledged and the traditional customs observed by the Jardu Mar People; and

(b)    are descended from, in accordance with the traditional laws acknowledged and the traditional customs observed by the Jardu Mar People, one or more of Kaddee and her maternal ancestors, Lady Jayne or Kitty Bluegum.

29    The area the subject of the Jardu Mar claim was situated in the Goldfields region of Western Australia. It covered the area surrounding Kalgoorlie and Coolgardie, and thereby overlapped the Marlinyu Ghoorlie claim, and also covered areas to the north and east of Kalgoorlie which overlapped the Maduwonnga and Nyalpa Pirniku claims.

30    On 3 March 2021, a delegate of the Registrar determined not to accept the Jardu Mar claim for registration pursuant to s 190A of the NTA on the basis that it did not satisfy ss 190B(4)-(8) or ss 190C(3)-(4). On 14 April 2021, the Jardu Mar applicant applied to the National Native Title Tribunal seeking reconsideration of the delegate’s decision. On 30 September 2021, the Tribunal determined that the Jardu Mar claim should not be accepted for registration pursuant to s 190A of the NTA on the same basis.

31    On 4 February 2022, the Court dismissed the Jardu Mar claim under s 190F(6) of the NTA on the basis that the obstacles to registration of the application were unlikely to be remedied: Dimer on behalf of the Jardu Mar People v State of Western Australia [2022] FCA 64.

32    The named applicants on the Jardu Mar claim were Allison Dimer, Dorothy Dimer, Leonne Velickovic, Yvonne Brownley and Donald Vincent Ballinger. Allison Dimer and Donald Ballinger are two of the three named applicants on the GGW application. Yvonne Brownley, now deceased, was the aunt of Linden Brownley, who is the third named applicant on the GGW application. Linden Brownley was actively involved in defending the Jardu Mar claim (see Jardu Mar at [10] (Bromberg J)). Dorothy Dimer is the mother of Allison Dimer. The GGW native title claimants rely on an affidavit of Dorothy Dimer in support of their application. As discussed further below, the GGW application can fairly be described as a late attempt to resuscitate the failed Jardu Mar claim, albeit with amendments to the claim area and the description of the claim group.

33    It is also relevant to note that two of Dorothy Dimer’s children, Henry Richard (Ricky) Dimer and Maxine Patricia Dimer, are two of the named applicants for the Marlinyu Ghoorlie claim. Both gave evidence in the Marlinyu Ghoorlie/Karratjibbin proceedings in support of the Marlinyu Ghoorlie claim.

Nyalpa Pirniku claim

34    On 31 October 2023, the Court made a consent determination of native title in respect of the Nyalpa Pirniku claim: Lewis on behalf of the Nyalpa Pirniku Native Title Claim Group v State of Western Australia [2023] FCA 1294. In that determination, the Court acknowledged the finding in Strickland that Kitty Bluegum held rights and interests in the overlapping claim area of the Maduwongga claim and the Nyalpa Pirniku claim under the traditional laws and customs of the Western Desert and not as part of a Maduwongga society (Lewis at [13] (Cheeseman J)). As a result of the findings made in Strickland, the description of the native title holders in the Nyalpa Pirniku claim was amended to include the descendants of Kitty Bluegum (Lewis at [16]). The Nyalpa Pirniku determination area does not overlap the Marlinyu Ghoorlie claim area.

Karratjibbin claim

35    The Karratjibbin native title claim was filed in proceeding WAD 38 of 2022 on 18 February 2022, and was subsequently amended on 2 September 2022. The Karratjibbin claim is made on behalf of all those persons who are biological descendants of Karratjibbin apical ancestors Polly, Billy Yambinut, Eva, Nimmo and Toby, or who have been adopted by one or more of those biological descendants in accordance with the traditional laws and customs of the Karratjibbin people.

36    The Karratjibbin claim area takes in Southern Cross to the south, Mukinbudin and Kalannie to the west and Mount Jackson to the north. It generally forms a smaller part of the Marlinyu Ghoorlie claim area. The GGW application does not overlap the Karratjibbin claim area.

Elizabeth Sambo

37    Elizabeth Sambo is a respondent to the Marlinyu Ghoorlie proceeding. Ms Sambo identifies as a member of the Kapurn people. Through her ancestor, Lucy Sambo, she falls within the Marlinyu Ghoorlie claim group. Until recently, Ms Sambo has opposed certain aspects of the Marlinyu Ghoorlie claim. However, with the leave of the Court, on 9 February 2024 Ms Sambo filed an amended concise statement. Ms Sambo’s position in the proceeding is now materially aligned with the Marlinyu Ghoorlie applicant.

The Cooper respondents

38    Each of Gary Cooper, Maria Bandry, Norman Cooper and Victor Cooper (together, the Cooper respondents) is also a respondent to the Marlinyu Ghoorlie/Karratjibbin proceedings. The Cooper respondents contend that they hold native title rights and interests in the eastern portion of the trial area, which encompasses Bullabulling, Coolgardie, Kalgoorlie and Kanowna, and that the Marlinyu Ghoorlie claim group do not hold any such native title rights and interests in that area.

39    The Cooper respondents contend that they acquired native title rights and interests in respect of the relevant area by descent from their apical ancestor Nada Bilbear (also known as Aneida). Nada Bilbear is said to be a member of a pre-sovereignty society, the “original tribe of Kalgoorlie”, that held native title rights and interests in the eastern part of the trial area at the time of effective sovereignty. That society is separate and distinct from those which are asserted by the Marlinyu Ghoorlie and Karratjibbin applicants respectively, as well as from the peoples, laws and customs of the Western Desert. The Cooper respondents contend that, at effective sovereignty, the trial area and an area immediately to the east of the trial area were “an interstitial zone” where the cultural practices of two regional societies overlapped. In that interstitial zone, there was a graded or phased transition of cultural practices from the Western Desert regional society to the east, northeast and north, to the Noongar regional society to the west, southwest and south, which includes the Karlamaya/Kapurn people.

Denise Colbung

40    Denise Colbung applied to be joined as a respondent to the Marlinyu Ghoorlie proceeding pursuant to s 84(5) of the NTA by interlocutory application lodged on 9 January 2023. Ms Colbung claimed to hold native title rights and interests in the Kalgoorlie/Coolgardie area as a member of the Wongatha people and under the traditional laws and customs of the Western Desert. In a supporting affidavit, Ms Colbung acknowledged that “most of the application area is subject exclusively to the traditional laws and customs of the Kapurn / Kalamai people” but that “part of the application area is subject to the traditional laws and customs of the western desert, adherents to which hold native title rights and interests (over those areas). The native title rights and interests in those areas co-exist with the rights and interests of the Kapurn people”. At the beginning of the preservation evidence hearing on 20 February 2023, Ms Colbung’s solicitor, Osker Linde, submitted to the Court that Ms Colbung asserted non-exclusive native title rights and interests, being rights and interests held by her extended family that co-existed with those of the Kapurn people (the Marlinyu Ghoorlie claimants) and that Ms Colbung sought to be joined as a respondent to protect her asserted rights and interests. On the claimed basis for joinder, the Marlinyu Ghoorlie applicant did not oppose Ms Colbung’s joinder and the Court made that order.

41    It is also relevant to note that, at the hearing on 20 February 2023, Mr Linde told the Court that Ms Colbung intended to file a native title claim in respect of her asserted native title rights and interests. The Court informed Mr Linde that any such claim would need to be brought quickly, because the Marlinyu Ghoorlie/Karratjibbin proceedings were expected to be heard later that year (which has occurred). Mr Linde acknowledged the need to move quickly if a claim was to be brought. It is apparent that the GGW application is the native title application that was foreshadowed by Mr Linde, but it was not filed until December 2023, after the completion of the hearing of the Marlinyu Ghoorlie/Karratjibbin proceedings (save for closing submissions).

42    On 26 April 2023, Ms Colbung filed an interlocutory application seeking orders that she be given leave to call preservation evidence from her aunt, Dorothy Dimer, who was then aged 94 years. In an affidavit supporting that application, Ms Colbung deposed that she had applied for funding from the representative body for the Goldfields region, Native Title Services Goldfields Limited (NTSG), to prepare and have authorised a native title determination application, to be called the Galgardee-Garlgula Mudduwonga-Wongi peoples native title determination application. Ms Colbung further deposed that her solicitor, Mr Linde, was seeking to prepare and file the application. In her affidavit, Ms Colbung stated that she is a “Wongi woman”. Allison Dimer also swore an affidavit in support of the application and referred to the proposed new native tile application. Again, it is apparent that the GGW application is the native title application that was referred to by Ms Colbung and Ms Dimer in their affidavits sworn on 26 April 2023.

43    On 1 May 2023, Ms Colbung filed a concise statement that alleged that the persons holding native title in the land and waters of the trial area are “Muddawonga and Wongi people of the Western Desert Social and Cultural Bloc” who are descended by birth or adoption from one or more of the following ancestors: King Billy Nyumbuning of Coolgardie; Kitty Blue Gum-Larrakin; Kileen Nyumbun; Queeny Donaldson; Tommy Cooper; Donald Sinclair; Alec McKenzie; Lady Jane (Brownley-Meredith); Dave Johnson; Ginger Stokes; Frank O’Loughlin; Maryanne Kurin (mother of Minjin Alice). The list of apical ancestors is substantially the same as the list of apical ancestors in the GGW application (set out below). The concise statement also alleged that the “native title rights and interests of the Muddawonga-Wongi People” are the rights of exclusive possession including the right to control access to the trial area”. The allegations made in the concise statement contradicted submissions advanced by Mr Linde at the commencement of the preservation evidence hearing that Ms Colbung did not assert exclusive native title rights and interests and recognised the interests of the Kapurn people.

44    On 23 May 2023, Ms Colbung filed an amended interlocutory application that continued to seek that preservation evidence be received from Dorothy Dimer, but also seeking that an affidavit from Mrs Dimer constitute her evidence in chief. Ms Colbung also filed an affidavit sworn by Mrs Dimer that day. The Marlinyu Ghoorlie applicant questioned the mental capacity of Mrs Dimer to give evidence in the proceeding and obtained orders to uplift certain medical records relating to her capacity. Following the making of those orders, Ms Colbung withdrew her application for the taking of preservation evidence from Mrs Dimer. The affidavit of Mrs Dimer sworn on 23 May 2023 has been attached as an annexure to the GGW application.

45    As a result of Ms Colbung’s change of position as a respondent in the proceeding, the Marlinyu Ghoorlie applicant brought an interlocutory application seeking to have Ms Colbung removed as a party to the Marlinyu Ghoorlie proceeding. Prior to the hearing of that application, Ms Colbung consented to orders being made that she cease to be a party to the Marlinyu Ghoorlie proceeding. At an interlocutory hearing on 29 June 2023, Ms Colbung’s solicitor, Mr Linde, stated his belief that “some applicant will be filing a claim on behalf of Western Desert interests in the Goldfields in the near future”. That did not occur until the GGW application was filed some six months later. As discussed further below, it appears that both Ms Colbung and Mr Linde have been involved in the preparation and filing of the GGW application, notwithstanding that Ms Colbung consented to orders that she cease to be a party to the Marlinyu Ghoorlie proceeding.

Current status of the Marlinyu Ghoorlie/Karratjibbin proceedings

46    On 5 October 2022, Bromberg J relevantly made the following orders in each of the Marlinyu Ghoorlie, Maduwongga and Karratjibbin proceedings:

(a)    That the following separate question be listed for hearing and heard separately from any issues of extinguishment of native title:

Who are the holders of native title rights and interests in accordance with s 223 of the Native Title Act 1993 (Cth) in relation to the land and waters covered by the Marlinyu Ghoorlie native title determination application (WAD 647 of 2017)?

(b)    That the Marlinyu Ghoorlie native title determination application, the Karratjibbin native title determination application and the Maduwongga native title determination application be heard together as one proceeding in relation to the separate question.

47    On 22 December 2022, timetabling orders for the hearing of the separate question were made in each of the proceedings.

48    In February 2023, on application by the Marlinyu Ghoorlie applicant and Ms Elizabeth Sambo in the Marlinyu Ghoorlie proceeding, and by the Maduwongga applicant in the Maduwongga proceeding, Bromberg J received oral and written preservation evidence from three individuals. Those individuals were Brian Champion Snr (the former lead applicant in the Marlinyu Ghoorlie proceeding), Gary Sambo (the brother of Elizabeth Sambo, a respondent in the Marlinyu Ghoorlie proceeding), and Anne Joyce Nudding (the second named applicant in the Maduwongga proceeding). The preservation evidence was heard on country in Kalgoorlie over four days.

49    As noted above, on 28 April 2023, Bromberg J made orders dismissing the Maduwongga proceeding.

50    The trial of the separate questions in the Marlinyu Ghoorlie/Karratjibbin proceedings has now reached the following stage:

(a)    Pleadings, in the form of concise statements, have been filed on behalf of each of the five presently participating parties in the trial: the Marlinyu Ghoorlie applicant, the Karratjibbin applicant, the State of Western Australia, the Cooper respondents and Ms Sambo, and in some cases amended to reflect the course of evidence adduced at trial.

(b)    Lay evidence was filed and, between 2 and 19 October 2023, the lay evidence was heard in Kalgoorlie and other locations across the trial area.

(c)    Expert anthropological evidence was filed between June and September 2023, with supplementary expert evidence following the hearing of the lay evidence filed in the first week of November 2023. The expert evidence was heard in the week commencing 11 December 2023. The experts who gave evidence were Fiona Powell, Nell Taylor and Ray Wood on behalf of the Marlinyu Ghoorlie applicant; Brendan Corrigan on behalf of the Karratjibbin applicant; and Daniel Leo on behalf of the Cooper respondents.

(d)    Closing submissions are scheduled to be heard in the week commencing 18 March 2024.

GGW application

51    The GGW application was lodged for filing with the Court on 14 December 2023, after all of the lay and expert evidence in the Marlinyu Ghoorlie/Karratjibbin proceedings had been heard.

52    The GGW application was filed by Linden Brownley, Allison Dimer and Donald Vincent Ballinger. As noted earlier, Allison Dimer and Donald Ballinger were two of the named applicants on the Jardu Mar application. Allison Dimer is also the daughter of Dorothy Dimer, who was also a named applicant on the Jardu Mar application. Linden Brownley is the nephew of Yvonne Brownley, now deceased, who was also a named applicant on the Jardu Mar application, and Mr Brownley was actively involved in defending the Jardu Mar claim (see Jardu Mar at [10] (Bromberg J)). Ms Colbung is identified in the GGW application as a member of the claim group.

53    The GGW application is brought on behalf of a native title claim group titled “Gulgoordi-Garlgurla Wongi People” and which is defined in the application in the following terms:

The native title claim group are those living Aboriginal people who, according to the traditional laws and customs of the Wongi people, hold native title over the application area, being:

1.     The descendants of Mary-Anne Kurin; Nyumbaning King Billy of Coolgardie; Roy Sinclair; Unga/a mother of Harry Carmody; Kitty Goondair; Googayn and Maningka; Kyleen Nyunban mother of Timothy Rundle; and Wanyuna and Cudafoo;

AND

2.     Persons accepted by those descendants as holding native title according to the traditional laws and customs of the Wongi people by reason of one of more of the following:

(i)     their own or an ancestor’s birth on the Determination Area;

(ii)     their own or an ancestor’s long association with the Determination Area; or

(iii)     their own holding of ritual knowledge with respect to sites of significance on the claim area.

54    Attached to the GGW application is an affidavit of Dorothy Dimer sworn 23 May 2023. The affidavit was originally prepared in connection with the application by Ms Colbung for the Court to receive preservation evidence from Mrs Dimer in the Marlinyu Ghoorlie proceeding. As set out above, that application was ultimately not pressed by Ms Colbung.

55    The GGW application has not been certified by the representative body for the Goldfields region, NTSG. Nor is it supported by an anthropological report. Nor does the GGW applicant have legal representation, although the evidence before the Court shows that Mr Linde advised the applicants in connection with the preparation of the application. The application states that the named GGW applicants were authorised to make the application and deal with all matters arising in relation to it pursuant to section 251B(b) of the NTA at a meeting of the native title claim group held on 9 December 2023 at the Coolgardie Town Hall. Each of Linden Brownley, Allison Dimer and Donald Ballinger made affidavits in Coolgardie on 11 December 2023, deposing to their authorisation to bring the application, which affidavits were attested before Mr Linde. In his affidavit dated 21 February 2024, Mr Brownley deposed that the applicants engaged the services of Mr Linde as a native title consultant and Mr Linde assisted the claim group to the current stage but is unable to assist further.

56    In his affidavit, Mr Brownley deposed that the GGW claim “is not a new claim and has been in the Native Title proceedings in some form for over 30 years since the 1990s”. Mr Brownley provided a summary of the different “Wongi” claims that had been made over the years. Mr Brownley deposed that: “If the current Wongi claim is allowed to proceed it will include other Maduwongga apical ancestors (other than Kitty Bluegum) and other Wongis in the Western Desert Cultural & Social Block”. Mr Brownley further deposed that “four attempts since 2001 have been made to secure support and funding for a Wongi claim” (I assume from NTSG) and that “[a]ll four have been declined”.

57    Mr Brownley’s affidavit attached a letter from John Load Cecil Jones AM, a pastoralist of Hampton Hill Station which is located within the GGW claim area (and therefore also within the Marlinyu Ghoorlie claim area). In his letter, Mr Jones states that he is a respondent to the Marlinyu Ghoorlie proceeding, but he did not participate in the trial of the separate questions. Despite that, Mr Jones state that he is willing “to assist the Wongi claim with substantial evidence of the Wongi people on Hampton Hill Station, established by the Jones family from 1909 onwards”. Mr Jones does not explain in his letter why he chose not to participate in the trial of the separate questions in the Marlinyu Ghoorlie/Karratjibbin proceedings (even though he is a respondent to the Marlinyu Ghoorlie proceeding), and is now offering to give evidence in the GGW application if it proceeds.

58    In oral submissions during the hearing of the dismissal applications, Mr Brownley emphasised the difficulties that the GGW claim group had faced in preparing the native title application through a lack of funding and difficulties in obtaining legal representation. As matters stand, the GGW applicants have neither funding nor legal representation.

Submissions of the State and the Marlinyu Ghoorlie applicant

59    The State submitted that, although the circumstances which will give rise to an abuse of process are not closed, there are two conditions which will enliven the court’s power to dismiss a proceeding as an abuse of power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute: UBS AG v Tyne (2018) 265 CLR 77 at [l] (Kiefel CJ, Bell and Keane JJ). Whether or not either or both of those conditions arises in a given matter will be a question of fact. That assessment must take account of all the relevant circumstances, including the overarching purpose prescribed by s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act): Tyne at [7] and [34] (Kiefel CJ, Bell and Keane JJ). It is not a necessary element or requirement to establish knowledge, intent or purpose on the part of a party who is said to have engaged in an abuse.

60    The State further submitted that, whilst each case must turn upon its own facts, it has been recognised that the commencement of an overlapping native title claim in circumstances similar to those arising in this case is capable of constituting an abuse, referring to TJ on behalf of the Yindjibarndi People v State of Western Australia [2016] FCA 553.

61    The State submitted that the Marlinyu Ghoorlie claim is significantly progressed. Nearly 20 hearing days have been devoted to the taking of evidence, including on country and in Kalgoorlie for a number of weeks. The parties are now preparing their closing submissions on the basis of that evidence and the Court will proceed to answer the separate questions as asked. Those submissions are to be heard in March 2024. The State submitted that it is inescapable that if the GGW claim is allowed to proceed, the program for closing submissions will need to be vacated and the evidence reopened. By force of s 67 of the NTA, the Court could not proceed to hear and deal with the Marlinyu Ghoorlie proceeding and the GGW claim separately. There may only be one determination of native title over an area of land and waters. As with all of the claims made in the Marlinyu Ghoorlie proceeding, the GGW claim is inconsistent with all other claims.

62    The State submitted that the GGW claim has been filed in circumstances of extreme delay with no reasonable explanation for the delay. It is evident that members of the GGW claim have been on notice of the existence of the Marlinyu Ghoorlie claim, and the hearing of the separate question, for some time now. If the GGW claim is able to continue, the prejudice to the State (and other parties) in the Marlinyu Ghoorlie proceeding is substantive and would be oppressive. It would effectively require the parties, including the State, to relitigate what has already occurred in the Marlinyu Ghoorlie claim. It would require a number of witnesses to be recalled to give evidence. The pressures and weight of the task in giving evidence is recognised. Whilst it is a necessary feature of the adversarial system, it is not necessary or fair in this instance to cause those witnesses to undertake that task once again.

63    Additionally, the State submitted that the material filed on behalf of the GGW applicant indicates that funding to prosecute the claim is a real issue, and that the GGW applicant has not proffered any plan by which the oppression and unfairness to the State and the other parties to the Marlinyu Ghoorlie/Karratjibbin proceedings could be reduced.

64    The State submitted that the cost, time and imposition on the parties to the Marlinyu Ghoorlie proceeding (including their lay and expert witnesses) if the GGW claim were permitted to proceed would amount to oppression, would bring the administration of justice into disrepute and would be inconsistent with the overarching obligation prescribed by s 37M of the FCA Act.

65    The Marlinyu Ghoorlie applicant largely adopted the submissions advanced by the State. Additionally, the Marlinyu Ghoorlie applicant submitted that the Court is able to find that the GGW claim is, in large part, an attempt by Ms Colbung to re-litigate her claims in circumstances where:

(a)    she was previously actively involved in the Marlinyu Ghoorlie/Karratjibbin proceedings;

(b)    she voluntarily withdrew as a party in June 2023;

(c)    through her solicitor, Mr Linde, she told the Court from as early as February 2023, and again in June 2023, that she and others proposed to file a native title claim; and

(d)    despite that, no claim was lodged until almost 6 months later, after the hearing of the on-country evidence and the expert evidence.

Consideration

66    The submissions of the State and the Marlinyu Ghoorlie applicant should be accepted.

67    As the High Court explained in Tyne at [1]:

The varied circumstances in which the use of the court’s processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute.

68    In Yindjibarndi, Rares J observed (at [133]):

When determining whether a proceeding is an abuse of process under the inherent power of the Court or a rule, such as r 26.01(d), the Court must undertake a weighing or balancing exercise in which “the conscience” of the court is informed by affidavits: cf Batistatos 226 CLR at 266 [10]-[11]. Mason CJ, Deane and Dawson JJ explained the nature of the evaluative task for determining whether proceedings should be permanently stayed on the ground of abuse of process in Walton 177 CLR at 396, 398. The weighing process involves a subjective balancing of a variety of factors and considerations depending on whether the proceedings are criminal, civil or administrative. Those factors can include the requirements of fairness to the defendant or respondent, the legitimate interest of a party or the parties or the public in the determination of the issues in the proceeding, the seriousness of any criminal charge or civil allegation and “the need to maintain public confidence in the administration of justice”.

69    In Lawson on behalf of the Badimaya Barna Guda People v State of Western Australia [2020] FCA 104, Mortimer J (as her Honour then was) said at [131]-[133]:

131    One particular consideration important in the context of the Native Title Act, is that litigation under that Act engages public interest as well as private interests: see Fortescue at [549]. The public interest is especially prominent here because of the length of time and the resources devoted by all parties, including the State of Western Australia on behalf of the entire community of Western Australia, to a negotiated outcome and to bringing finality to native title claims in this region. That is an important consideration to be weighed in the balance.

132    However, it must also be recognised that the power to dismiss a proceeding as an abuse of process should be exercised sparingly: see Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 at [68]-[69] (French J). That is at least in part for the very reason outlined by Dixon J in Cox: such a dismissal deprives a party of what is otherwise an entitlement to commence and maintain a proceeding, and to have that party’s allegations considered and determined.

133    Unreasonable delay in bringing a claim (or applying to be joined to a native title claim) is capable of constituting an abuse of process: see, for example, Stock (on behalf of the Nyiyaparli People) v Western Australia (No 4) [2018] FCA 1370 at [45]. However, the delay must mean that the proceeding has the characteristics to which Jagot J and I referred in Fortescue and that I have set out above.

70    If the GGW claim were permitted to be maintained, very severe prejudice would be caused to the State and the Marlinyu Ghoorlie applicant. The trial of the Marlinyu Ghoorlie/Karratjibbin proceedings is nearly complete. The trial has been burdensome for all parties, including witnesses, some of whom are elderly. The claims made in the GGW application conflict with all other claims that have been made in the Marlinyu Ghoorlie/Karratjibbin proceedings by applicants and participating respondents. To enable a proper adjudication of the conflicting claims now sought to be made in the GGW application, it would be necessary to hear from lay witnesses again about those claims, and it would be necessary to hear again from the expert anthropological witnesses.

71    The Marlinyu Ghoorlie application has been on foot since 2017. The Marlinyu Ghoorlie applicant has prosecuted its claim diligently and is seeking a determination of that claim by the Court, to which it is entitled. The Karratjibbin applicant and the other respondents to the Marlinyu Ghoorlie/Karratjibbin proceedings are also entitled to a determination of their respective claims which have been made in the proceedings.

72    The backdrop to the Marlinyu Ghoorlie/Karratjibbin proceedings is a lengthy period of native title claims and disputation in the Goldfields region, including particularly the Kalgoorlie and Coolgardie area, dating back to the 1990s. In that nearly 30 year period, many claims have been advanced and dismissed by the Court. The competing claims of native title rights and interests in the Kalgoorlie and Coolgardie area, including on behalf of Aboriginal persons claiming to hold rights and interests as Wongi people under Western Desert law and custom have been ventilated in proceedings in the Court, albeit that those proceedings have been unsuccessful.

73    The GGW application is in part a resuscitation of the Jardu Mar claim. The Jadu Mar claim was dismissed by the Court on 4 February 2022. The GGW application has been brought nearly two years later in circumstances where, to the knowledge of the GGW applicants, the Marlinyu Ghoorlie/Karratjibbin proceedings were progressing to trial. That is excessive and unreasonable delay.

74    I also infer that Ms Colbung and Mr Linde were actively involved in formulating the GGW application. The GGW application largely reflects the claims made by Ms Colbung in her concise statement filed in the Marlinyu Ghoorlie proceeding. Ms Colbung, through her solicitor Mr Linde, foreshadowed the GGW application in February 2023 and was informed by the Court of the need to act with urgency. Despite that, the GGW application was not filed until mid-December 2023 when the trial of the Marlinyu Ghoorlie/Karratjibbin proceedings was largely complete. Furthermore, Ms Colbung did not press her application for preservation evidence to be given by Dorothy Dimer in the Marlinyu Ghoorlie/Karratjibbin proceedings and consented to orders that she cease to be a party to the Marlinyu Ghoorlie/Karratjibbin proceedings. Ms Colbung thereby deliberately chose not to advance her claim to hold native title rights and interests as a Wongi person in the Marlinyu Ghoorlie/Karratjibbin proceedings. The course adopted by Ms Colbung, with the formulation of the GGW application, was destined to cause severe prejudice to the parties to the Marlinyu Ghoorlie/Karratjibbin proceedings.

75    Without intending any criticism of the GGW applicants, Mr Brownley, Ms Allison Dimer and Mr Ballinger, it is clear that they are unable to offer any practical solution to the severe prejudice that would be caused to the parties to the Marlinyu Ghoorlie/Karratjibbin proceedings if the GGW application were permitted to be continued. Exacerbating that prejudice, the evidence shows that the GGW applicant does not have legal representation and does not currently have a source of funds with which to prosecute the GGW application. On the current state of the evidence, and having regard to the history of the claims made, I consider that it is more likely than not that the GGW applicants will be unable to secure funds to prosecute the GGW application.

76    The power to dismiss a proceeding as an abuse of process should be exercised sparingly. However, weighing all relevant considerations in the present case, I am satisfied that the filing of the GGW application at the time at which it has been filed is an abuse of process because it would occasion unjustifiable oppression to the parties to the Marlinyu Ghoorlie/Karratjibbin proceedings and it would bring the administration of justice into disrepute.

Conclusion

77    In conclusion, the GGW application should be dismissed pursuant to r 26.01(1)(d) of the Federal Court Rules 2011 (Cth) as an abuse of process.

78    In its interlocutory application, the State sought liberty to apply for an order for costs. The default position in native title proceedings is that each party must bear its own costs. Section 85A provides as follows:

(1)    Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs.

Unreasonable conduct

(2)    Without limiting the Court’s power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first‑mentioned party to pay some or all of those costs.

79    Having regard to the findings I have made on this application, including the involvement of non-parties in the bringing of the GGW application, I will make an order permitting any application by a respondent to the GGW application for an award of costs against any person to be filed and served within 14 days.

Associate:    

Dated:    8 March 2024

SCHEDULE OF PARTIES

ANNEXURE