FEDERAL COURT OF AUSTRALIA

Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No 3) [2024] FCA 1132

ORDERS

THE COURT ORDERS THAT:

1.    The application for summary judgment dated 26 May 2023 be allowed.

2.    The time for the Mullewa Wadjari People to file any application for leave to appeal Order 1 above be extended to 14 days after the date on which the written reasons for the order granting summary judgment are published.

3.    Order 17 of the orders made on 14 August 2023 listing the substantive proceedings for hearing be vacated.

4.    All extant hearing preparation orders in the substantive proceedings be vacated.

5.    Costs be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1.    The parties are directed to confer within 7 days as to the appropriate form of any orders to be made to reflect the published reasons, and further to the orders made on 20 December 2023. If the parties can agree on the appropriate form of the orders, within 14 days the parties shall provide to chambers an agreed minute of draft orders. If the parties cannot agree as to the appropriate form of the orders within 14 days, each party shall forthwith forward a proposed minute of draft orders and short submissions (no more than two pages) as to why those orders, rather than the orders proposed by any other party, should be made.

2.    Liberty to apply.

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

REASONS FOR JUDGMENT

MURPHY J:

1.    Introduction

1    The substantive proceedings in this matter are six overlapping applications for determination of native title in the Geraldton region of Western Australia, brought on behalf of the Nanda People, the Wajarri Yamatji People and the Mullewa Wadjari People respectively, being:

(a)    Colin Hamlett, Kevin Egan & Others on behalf of the Wajarri Yamatji People v State of Western Australia & Others, proceedings WAD 32/2018, WAD 611/2018 and WAD 28/2019 (WY Applications);

(b)    Violet Drury, Derek Drage & Others on behalf of the Nanda People v State of Western Australia & Others, proceedings WAD 30/2019 and WAD 176/2019 (Nanda Applications); and

(c)    Leedham Papertalk & Others on behalf of the Mullewa Wadjari People v State of Western Australia & Others, proceeding WAD 21/2019 (MW Application).

2    Before the Court is an interlocutory application dated 26 May 2023, brought jointly by the applicants in the Nanda Applications and the WY Applications (together, the N&WY applicants) in which they seek summary judgment against Leedham Papertalk and others on behalf of the Mullewa Wadjari People, the applicant in the MW Application (MW applicant), pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA) and r 26.01(1)(a) of the Federal Court Rules 2011 (Cth) (Rules). The N&WY applicants bring the application on the grounds that the MW applicant has no reasonable prospect of successfully prosecuting its case on any of the issues to be decided in a pending hearing of separate questions set by the Court (Separate Questions hearing).

3    It is always appropriate to be cautious before deciding a party’s rights by way of summary judgment, and the power to do so must not be exercised lightly: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [60] (Hayne, Crennan, Kiefel and Bell JJ). In my view particular caution is appropriate when summary judgment is sought in a native title determination application. The preamble to the Native Title Act 1993 (Cth) (NTA) provides that the NTA is intended, amongst other things, to rectify the consequences of past injustices suffered by Australia’s First Peoples, to ensure their full recognition and status within the Australian nation, and to advance the process of reconciliation among all Australians. It is important that applicants seeking a determination of native title are heard, and important too that they feel they have been heard. If an application for determination of native title is decided summarily, without hearing the claimants’ oral testimony they may not feel they have been heard.

4    For those reasons, and because the competing proceedings were fixed for hearing in the Separate Questions hearing, I was initially reluctant to hear the summary judgment application. But in the circumstances of the case I was persuaded that it was appropriate to hear and decide the summary judgment application before the parties were put to the substantial time and expense of a contested ‘on country’ hearing of the Separate Questions. The circumstances include that:

(a)    in the WY Applications all participating parties other than the MW applicant have entered into consent minutes to recognise native title held by the Wajarri Yamatji People (as defined) in relation to the WY claim area as specified;

(b)    in the Nanda Applications all participating parties other than the MW applicant have entered into consent minutes to recognise native title held by the Nanda People in relation to the contested area;

(c)    the MW applicant withdrew from agreements it had entered into in Court-convened mediations to settle the disputes between the MW applicant and the Nanda People, and between the MW applicant and the WY People. Mortimer J (as her Honour then was) held that their withdrawal from those agreements constituted an abuse of process;

(d)    the Nanda and WY Applications have suffered lengthy delays, and the N&WY applicants have incurred substantial extra costs, for which the MW applicant is centrally responsible;

(e)    the parties have filed all the evidence which they propose to rely upon in a forthcoming hearing of the Separate Questions, which evidence is in its final form. Thus, the summary judgment application could be decided on the full suite of evidence for the hearing; and

(f)    the Nanda and WY applicants contended that they should not be put through the substantial time and expense of a contested Separate Questions hearing ‘on country’, listed to take approximately three weeks, if the MW applicant has no reasonable prospect of successfully prosecuting its case on the issues in the Separate Questions hearing.

I concluded that deciding the summary judgment application in advance of the Separate Questions hearing was in the interests of justice and was the course most consistent with the overarching purpose under s 37M of the FCA to facilitate the just resolution of the disputes between the parties according to law as quickly, inexpensively and efficiently as possible.

5    The documentary materials relied on by the parties were substantial and the Court had the benefit of all the evidence filed for the Separate Questions hearing but without the benefit of cross examination. For the reasons I now turn to explain, following hearing the summary judgment application I concluded that the MW applicant has no reasonable prospect of successfully prosecuting its case on four of the issues for the Separate Questions hearing (described as WY Issue 1, Nanda Issue 1, Nanda Issue 3 and Nanda Issue 4) and I made orders to allow the application.

6    These reasons are lengthy, and their length might be said to indicate that it is inappropriate to decide the proceeding summarily. However, the length reflects the fact that the application involves five separate questions and the evidence in relation to four of those issues is lengthy. I was also concerned to ensure that the MW applicant can see that its evidence has been considered.

7    In any event, the fact that an extensive consideration of the evidence was necessary to conclude that the MW applicant has no reasonable prospects of success on the issues in the case is not a reason to refuse summary judgment. As Mansfield J explained in Thardim v Northern Territory of Australia [2016] FCA 407 at [97]:

Ordinary principles governing summary dismissal apply to the power to strike out under s 84C of the NT Act. Such an order should be approached with caution and should be allowed only where a clear case for summary dismissal has been made, and proceedings should be dismissed only in very clear cases where the claim as expressed is untenable upon the version of the evidence favourable to the applicant (and generally without any weighing of conflicting evidence or of the inferences which might be drawn therefrom). 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. Those propositions are well known: see Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129-130 per Barwick CJ; Williams v Grant [2004] FCAFC 178 at [48]-[49] per Lander J (North and Dowsett JJ agreeing); Bodney v Bropho (2004) 140 FCR 77 at [51] per Stone J. They were applied in the Town of Batchelor 2008 judgment at [11]-[15] and in the Town of Batchelor 2014 judgment at [120].

(Emphasis added.)

8    It should be understood that the MW People do not claim to be a separate people to the WY People; rather they say that they are descendants of the Thawarda Wadjari people who were at sovereignty members of the same Wajarri society as the WY People. “Wadjari” is just an alternative spelling or pronunciation of “Wajarri”, and both words refer to the same Aboriginal group. The evidence shows numerous variations of the spelling and pronunciation of:

(a)    “Wajarri” (including Wadjari, Wadjarri, Wajjari, Wajjaree, Watjarri, Wajeri).

(b)    “Thawarda” (including Tharwarda, Thagarda, Tharwerra, Tharguurda).

I use the variations “Wajarri” and “Thawarda”, except where the context requires otherwise. The choice to use those spelling variations is for clarity and is not material to the decision.

2.    The evidence and submissions

9    To establish an entitlement to summary judgment on the issues to be decided in the Separate Questions hearing the N&WY applicants centrally relied on the lay evidence filed by the MW applicant for that hearing, being the witness statements of Dr Green, Mr Papertalk and Ms Jackamarra. They contended that the expert evidence filed by the MW applicant, being a report of Mr Kim Barber dated 22 September 2023 (Barber Report), is inadmissible. The N&WY applicants undertook a detailed analysis of the MW applicant’s evidence and submitted that its evidence did not rise to the level that it had a reasonable prospect of successfully prosecuting its case on the issues to be decided in the Separate Questions hearing. They relied upon the following evidence:

(a)    the affidavits of Colin McKellar, affirmed 26 May 2023 and 22 September 2023 (second McKellar affidavit) and the annexures thereto;

(b)    the Statement of Agreed Issues in Dispute, agreed by the Nanda, WY and MW applicants and the State of Western Australia (the State), dated 22 December 2022 (SAID);

(c)    the N&WY Amended Statement of Facts, Issues and Contentions, dated 16 February 2023;

(d)    the N&WY Further Amended Statement of Facts, Issues and Contentions, dated 1 December 2023;

(e)    the lay evidence filed by the MW applicant for the Separate Questions hearing, being the signed witness statements of:

(i)    Mr Leedham Papertalk, dated 28 April 2023;

(ii)    Ms Glenda Jackamarra, dated 28 April 2023;

(iii)    Dr Charmaine Green, dated 27 April 2023;

(f)    the N&WY Outline of Submissions, dated 13 November 2023 (N&WY submissions); and

(g)    the N&WY Reply Submissions, dated 1 December 2023.

10    The State supported the summary judgment application. It relied upon the following material:

(a)    the evidence filed by the N&WY applicants and the MW applicant, pursuant to orders 3(a) and (b) of the Orders made on 22 October 2023; and

(b)    other evidence referred to in the respective Outlines of Submissions by the N&WY applicants and the MW applicant.

11    In opposing summary judgment the MW applicant centrally relied upon the same evidence as the N&WY applicants and also on some limited parts of the lay and expert evidence filed by the N&WY applicants for the Separate Questions hearing. It relied upon the following evidence:

(a)    the SAID;

(b)    the Mullewa Wadjari Substituted Statement of Facts, Issues and Contentions, dated 31 January 2023 (MW SSFIC);

(c)    the Mullewa Wadjari Further and Better Particulars, dated 13 March 2023 (MW F&BP);

(d)    the affidavit of Raquel Woodcock, the solicitor for the MW applicant, sworn 6 November 2023, and the annexures thereto, including:

(i)    the lay witness statements of Mr Papertalk, Ms Jackamarra and Dr Green;

(ii)    a partially redacted version of the Barber Report;

(iii)    various historical maps prepared by anthropologists and other researchers depicting the extent of Wajarri country;

(iv)    lay witness statements of persons who had made statements for the Nanda or WY applicants for the Separate Questions hearing:

(A)    Ms Robin Boddington, dated 25 May 2023;

(B)    Mr Bevan Drage, dated 23 May 2023;

(C)    Mr David Drage, dated 16 May 2023;

(D)    Mr Gavin Egan, dated 18 May 2023;

(E)    Mr Allen Egan, dated 7 June 2023;

(v)    the expert report of Dr Anna Kenny, anthropologist, dated 19 October 2023 (Kenny Report), who was to give evidence for the N&WY applicants in the Separate Questions hearing; and

(e)    the Mullewa Wadjari Outline of Submissions, dated 24 November 2023 (MW submissions).

It submitted that the evidence was sufficient to give rise to specific factual and legal questions which could only be decided following a trial, and that summary judgment must therefore be refused.

3.    Background facts

12    The MW applicant accepted, without disagreement, the contents of the N&WY submissions under the headings “Introduction”, “Material relied upon”, “Background”, “Substantive Issues in Dispute”, “Recent History of the Proceedings” and “Some Relevant Law”, and also accepted the factual content of attachments “A”, “B” and “C” to those submissions. I have drawn the following, sometimes directly, from those uncontentious parts of the N&WY submissions.

3.1    The Claims

3.1.1    The Nanda Applications

13    The native title determination application on behalf of the Nanda People in proceeding WAD30/2019 is the result of a combination of two claims, the first, lodged in 1994, the second lodged in 1996. In June 2000, the claim area in those Nanda Applications was reduced to accommodate an overlap with the then Wajarri Elders claim to the east (which was later amalgamated with other Wajarri claims), and the Hutt River claim to the south. The majority of the claim area in the Nanda Applications (17,350 square km) was the subject of a positive determination of native title in 2018: Drury on behalf of the Nanda People v State of Western Australia [2018] FCA 1849. A second determination of native title was jointly made in favour of the Nanda and Malgana Peoples in 2019 which comprised an area of 442 square km: Drury on behalf of the Nanda People v State of Western Australia (No 3) [2019] FCA 1812. The Nanda People #3 claim in proceeding WAD176/2019 was lodged in 2019 to allow the Nanda People to gain the benefit of s 47B of the NTA. It was brought as the primary claim by the Nanda People and lies entirely within the external boundary of the claim.

14    The only remaining portion of the claim area in the Nanda Applications (Nanda claim area) that has not yet been determined (1,830 square km) is that portion that is overlapped by the claim area in the MW application (MW claim area).

3.1.2    The Wajarri Yamatji Applications

15    The native title determination application on behalf of the Wajarri Yamatji People in proceeding WAD28/2019 is the result of the combination of many Wajarri claims, predominantly lodged in the 1990s. From 1999-2002 most of the Wajarri claims coalesced into a Wajarri Elders claim, and the Ngoonooru Wadjari claim. In 2004 these two claims were combined to form a single Wajarri Yamatji application. The majority of the claim area in the WY Application (68,743 square km) was the subject of a positive conditional determination in 2017: I.S. (Deceased) on behalf of the Wajarri Yamatji People (Part A) v State of Western Australia [2017] FCA 1215 (I.S. v State of Western Australia).

16    In 2018 the WY Application was the subject of two more positive conditional determinations: Hamlett on behalf of the Wajarri Yamatji People (Part B) v State of Western Australia [2018] FCA 545; Egan on behalf of the Wajarri Yamatji People (Part C) v State of Western Australia [2018] FCA 1945. In 2021, the WY Application was the subject of two further positive determinations. All those determinations became unconditional on the appointment of Wajarri Yamaji Aboriginal Corporation RNTBC (ICN 7878) as the prescribed body corporate for the determinations: Dann on behalf of the Wajarri Yamatji People (Part D) v State of Western Australia [2021] FCA 867; Hamlett on behalf of the Wajarri Yamatji People (Part E) v State of Western Australia (No 2) [2021] FCA 868; Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869. The only remaining portion of the claim area in the WY Application (WY claim area) that is not determined is that which is overlapped by the MW claim area, and a small portion that was once overlapped by the Widi Mob claim.

17    The Wajarri Yamatji #3 Application in proceeding WAD32/2018 was lodged on 5 February 2018 to allow Wajarri Yamatji people to gain the benefit of s 47B of the NTA in the overlap area. The Wajarri Yamatji #7 Application in proceeding WAD611/2018 was lodged on 19 December 2019 due to the uncertainty of the impact of mining exploration licences on the application of s 47B of the NTA. Both of those claims are wholly within the claim area of the WY Application in proceeding WAD28/2019.

3.1.3    The Mullewa Wadjari Application

18    The native title determination application on behalf of the Mullewa Wadjari People in proceeding WAD21/2019 was lodged in the National Native Title Tribunal on 19 August 1996. The claim area in that application formed a roughly circular shape centred on the town of Mullewa with a radius of about 100km (as depicted in Map 4 at [125] below). About half of that claim area overlapped the claim areas in the Nanda and WY Applications. The remainder was south of these overlaps, and previously overlapped the Amangu, Naaguja, Hutt River and Widi Mob claims.

19    In 2015, Justice Barker ordered the MW applicant, along with the applicants in the Naaguja, Hutt River and Widi Mob claims, to seek to resolve their overlaps in an area described as the “Separate Proceeding Area” (SPA). As a result of these orders and subsequent mediation, the MW applicant withdrew its claim from the overlapping Amangu, Naaguja and Hutt River claims. In 2017, the Amangu claim was amended to include most, but not all of the Mullewa Wadjari native title claim group members and was renamed “Southern Yamatji”.

20    A claim inclusive of all the native title claim groups relating to the SPA, called the Yamatji Nation claim, was filed on 28 June 2019. In 2020, the Yamatji Nation settlement agreement was made and a consent determination was made in relation to the SPA: Taylor on behalf of the Yamatji Nation Claim v State of Western Australia [2020] FCA 42.

3.2    The overlapping claims

21    Map 1 reproduced below shows the MW claim area, being the area coloured darker brown, inside the blue or intermittent blue/yellow or blue/green boundaries, and labelled in blue as “WAD 21/2019 Mullewa Wadjari Community”. In this map:

(a)    the western end of the MW claim area, inside the intermittent yellow/green or yellow/blue boundaries, labelled “Overlap with Nanda”, overlaps with the Nanda claim area (Nanda Overlap Area); and

(b)    the balance of the MW claim area, inside the blue or intermittent blue/green or green/yellow boundaries, coloured darker brown, labelled “Overlap with Wajarri Yamatji”, overlaps with the WY claim area (WY Overlap Area).

22    The dispute between the MW applicant and the Nanda applicant in relation to the Nanda Overlap Area is a dispute as to the extent of WY country. The dispute between the MW applicant and the WY applicant in relation to the WY Overlap Area is a dispute as to whether one or more of three identified persons living at or around effective sovereignty should be added as additional apical ancestors to the WY Application, or are a descendant of one of the existing apical ancestors, such that their descendants should be included in the Wajarri Yamatji native title claim group. There is no dispute that the WY Overlap Area is WY country.

Map 1

23    Map 2 reproduced below shows the MW claim area, together with the Nanda Overlap Area and the WY Overlap Area in the context of surrounding native title determinations, which have recognised:

(a)    the area to the north and north-east of the WY Overlap Area as Wajarri Yamatji country;

(b)    the area to the south of the WY Overlap Area and the the Nanda Overlap Area as Yamatji Nation country; and

(c)    the area to the west and north-west of the Nanda Overlap Area as Nanda country.

Map 2

24    The Nanda Overlap Area can be seen more clearly in Map 3 reproduced below.

Map 3

3.3    The recent history of the proceedings

25    In Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 221 at [17]-[100] (Papertalk (No 1)), Mortimer J (as her Honour then was) set out some of the recent history of these proceedings.

26    Her Honour noted (at [18]) that, by orders made in December 2017, the resolution of the overlapping native title claims of the Nanda, Wajarri Yamatji and Mullewa Wadjari groups was referred to mediation before Judicial Registrar Daniel. Active mediation commenced on 31 January 2018. There were substantial anthropological and genealogical materials in existence to assist the mediation process, and the parties agreed that further necessary anthropological and genealogical research would be conducted by Craig Elliott. Mr Elliott’s anthropological research was completed and provided to the parties in February 2019 and the overlapping claims were then listed for further mediation commencing 25 February 2019. The mediation process was intensive and long-running, and there were no less than 30 mediation events between 31 January 2018 and 24 February 2021.

27    An in-principle agreement between the MW and WY applicants was reached at a mediation on 28 February 2019, relatively early on in the mediation process, which agreement was reduced to writing and signed by the parties. Her Honour described the components of that agreement as involving:

(a)    an additional apical ancestor “Angelina (mother of Alice Darby)” being added to the WY Applications;

(b)    the withdrawal of the MW applicant’s claim in relation to the WY Overlap Area;

(c)    the WY native title claim group to seek to vary the existing WY determinations to add the apical ancestor “Angelina (mother of Alice Darby)” to the description of native title holders pursuant to those determinations; and

(d)    the amended WY native title claim group (i.e. including those descended from Angelina) agreeing to “work together in good faith to develop the structure and rules” for the prescribed body corporate to hold the determined WY native title.

28    In a similar but separate process, an in-principle agreement was reached between the MW and Nanda applicants at a mediation on 14 May 2019, which agreement was reduced to writing and signed by the parties.

29    Thus, active mediation began in January 2018, and agreements were reached in February and May 2019. Significant time and expense was then incurred by the N&WY applicants and the State in progressing the agreed mediation outcomes towards consent determinations.

30    Following a meeting of the MW native title claim group, on 14 June 2021 the MW applicant informed the other parties that it would not implement the in-principle agreements reached.

31    Justice Mortimer summarised those events in Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia (No 2) [2022] FCA 593 at [1]-[2], as follows:

These proceedings concern overlapping claims for native title in the Geraldton region of Western Australia. Following protracted mediation and negotiation between the competing applicants, in-principle agreements were reached to withdraw the claims made on behalf of the Mullewa Wadjari People, in return for certain alterations of position by the Nanda and Wajarri Yamatji applicants. After considerable delays, and more than three and a half years since the beginning of mediation, following what purported to be a meeting of the claim group for the Mullewa Wadjari People, the Mullewa Wadjari applicant informed the Nanda and Wajarri Yamatji applicants that it would not implement those agreements. An account of these events and the context in which they occurred is provided in Papertalk on behalf of the Mullewa Wadjari People v State of Western Australia [2022] FCA 221 at [17]-[107], and in a published summary of that judgment.

In Papertalk, the Court determined that there was no enforceable agreement between the relevant parties, and it was not appropriate at that stage for the Mullewa Wadjari overlap claims to be dismissed as an abuse of process. However, the Court was satisfied that the Mullewa Wadjari applicant’s conduct amounted to an abuse of the processes of the Court, in particular its mediation processes.

32    The decision in Papertalk (No 1) was handed down on 16 March 2022. Mortimer J decided that the MW applicant’s conduct was an abuse of process but concluded that it was not appropriate at that stage to dismiss the MW application. On 20 May 2022 her Honour made orders requiring the MW applicant to convene a meeting of the MW native title claim group at which all claim group members were required to attend unless excused by the Court. The orders required that the meeting be chaired by an independent person, and that claim group members be informed that if they decided not to honour the in-principle agreements, the N&WY applicants could apply for costs in relation to their wasted time and resources. In that context the claim group members were directed to decide whether or not the MW applicant would honour the in-principle agreements that it had earlier reached.

33    The reconvened MW claim group meeting again decided not to give effect to the in-principle agreements earlier reached. Costs orders were then made against the MW applicant. The MW applicant then filed an application for leave to appeal and an appeal from the costs orders. Leave to appeal was granted on 8 August 2022. The application for leave to appeal and appeal was heard by the Full Court on 21 November 2022 and during the course of oral submissions the MW applicant withdrew the application for leave to appeal. Those events gave rise to serious delay in the progress of the Nanda and WY Applications and substantial additional costs.

34    The delay and cost occasioned by the MW applicant did not stop there. Because the in-principle settlement had fallen apart, on 11 October 2022 Mortimer J made programming orders to progress the competing applications to trial. Those orders provided:

(a)    that evidence in each of the proceedings shall be evidence in each of the other proceedings;

(b)    for the filing of statements of facts, issues and contentions (SFIC):

(i)    by 4 November 2022 the MW applicant was required to file a SFIC in relation to any issue with which it disagrees contained in:

(A)    the document titled Minute of Proposed Consent Determination of Native Title filed on 26 July 2021 in relation to the WY Overlap Area (WY Consent Minute); and

(B)    the document titled Minute of Proposed Consent Determination of Native Title filed on 25 June 2021 in relation to the Nanda Overlap Area (Nanda Consent Minute);

(the MW SFIC);

(ii)    by 25 November 2022 the N&WY applicants were required to file its SFIC in response (N&WY SFIC); and

(iii)    by 9 December 2022 any active respondent was required to file a SFIC in response to that filed by the MW applicant;

(c)    that by 16 December 2022 the parties confer for the purposes of identifying the issues in dispute arising from the SFICs filed by the parties, and to the extent that they agree file an agreed statement of issues in dispute by 16 December 2022;

(d)    for filing of signed statements of evidence by the parties’ proposed lay witnesses:

(i)    by 17 March 2023 by the MW applicant;

(ii)    by 14 April 2023 by the N&WY applicants;

(iii)    by 28 April 2023 by any active respondent party; and

(iv)    by 12 May 2023 by the MW and N&WY applicants in reply;

(e)    for filing of expert evidence by the parties’ proposed expert witnesses;

(i)    by 21 July 2023 by the MW applicant;

(ii)    by 18 August 2023 by the N&WY applicants;

(iii)    by 1 September 2023 by any active respondent; and

(iv)    by 22 September 2023 by the MW and N&WY applicants in reply;

(f)    for an experts’ conference as soon as practicable after 27 October 2023; and

(g)    for referral to Judicial Registrar Daniel for case management to assist the parties to reach agreement on a timetable for the conduct of the hearing.

35    The MW applicant did not comply with that timetable. It filed its SFIC on 4 November 2022, but the document was deficient. The N&WY applicants asserted that, amongst other things, it did not address the WY Consent Minute or the Nanda Consent Minute; it did not identify what determination the MW applicant wanted the Court to make; it did not identify the society that the MW applicant asserted had native title rights and interests in the Nanda and WY Overlap Areas; and it made contradictory statements about the nature of MW rights and native title holders as between the Nanda and WY Overlap Areas.

36    In response to complaints by the N&WY applicants about those deficiencies the MW applicant filed an amended SFIC on 24 November 2022. The N&WY applicants filed their SFIC on 1 December 2022, and the State filed its SFIC on 12 December 2022. Following mediation the parties agreed to the SAID filed on 22 December 2022.

37    On the basis that the MW SFIC was inconsistent with the SAID to which it had agreed, on 21 December 2022 Judicial Registrar Daniel made orders requiring:

(a)    the MW applicant to file a further amended SFIC (FASFIC) consistent with the agreed SAID filed on 22 December 2022 by 31 January 2023;

(b)    the N&WY applicants to file their amended SFICs (ASFIC) in response to the MW FASFIC by 14 February 2023; and

(c)    the State to file an ASFIC in response to the MW FASFIC by 28 February 2023.

38    The MW applicant filed its FASFIC on 31 January 2023. The N&WY applicants contended that it was still deficient and sought clarification. On 15 February 2023 the N&WY applicants filed an interlocutory application seeking orders for the MW applicant to file further and better particulars.

39    On 16 February and 2 March 2023, the N&WY applicants and the State respectively filed their ASFICs.

40    On 13 March 2023, the MW applicant filed the MW F&BP.

41    Nor did the MW applicant comply with the timetable for filing its lay evidence. On 14 April 2023, Judicial Registrar Daniel extended the time for the MW applicant to file its lay evidence by a period of six weeks, with corresponding extensions for other parties.

42    On 26 May 2023, the N&WY applicants filed their summary judgment application.

43    Nor did the MW applicant comply with the timetable for filing its expert evidence. On 3 August 2023, the Court made orders to extend the time for the MW applicant to file its expert evidence by 25 days with a corresponding extension for the N&WY applicants. On 22 August 2023, the Court again made orders extending the time for the MW applicant to file its expert report, this time by 18 days, with a corresponding extension for the N&WY applicants. On 12 September 2023, the Court again made orders extending the time for the MW applicant to file its expert evidence by a further 21 days, with a corresponding extension for the N&WY applicants. The MW applicant did not file the Barber Report until 22 September 2023, being two months later than the original due date.

44    On 22 August 2023, the Court made orders listing the Separate Questions for hearing with:

(a)    lay evidence to be heard in Geraldton commencing on 8 April 2024, on an estimate of two weeks;

(b)    expert evidence to be heard in Perth commencing on 17 June 2024, on an estimate of three days; and

(c)    oral closing submissions in Geraldton commencing on 22 July 2024, on an estimate of two days.

45    On the same day the Court made programming orders for the summary judgment application, pursuant to which the parties were required to file any evidence upon which they intended to rely, and to file written submissions.

46    The summary judgment application was subsequently listed for hearing on 7 December 2023. I heard the application that day and on 20 December 2023 made orders allowing the application and extending the time for any application for leave to appeal to 14 days after delivery of reasons for judgment.

4.    The Statement of Agreed Issues in Dispute

47    The SAID comprises an agreement between the Nanda, WY and MW applicants and the State in relation to the issues in dispute and various facts. It defines the following relevant terms:

(a)    “Nanda People” means those persons described at Schedule 7 of the Nanda Consent Minute.

(b)    “Nanda Area” means the lands and waters of the Nanda Applications to the extent that they overlap the MW Application; i.e. the Nanda Overlap Area.

(c)    “WY People” means those persons described at Schedule 7 of the WY Consent Minute;

(d)    “WY Area” means “the land and waters of the WY Applications, to the extent that they overlap the MW Application”; i.e. the WY Overlap Area; and

(e)    “Wajarri Society” means the society identified at paragraph [46] of the WY (Part A) Determination, meaning the determination of native title made by the Court on 19 October 2017 in I.S. v State of Western Australia (as amended by orders made on 29 July 2021 in the context of Hamlett on behalf of the Wajarri Yamatji People v State of Western Australia (No 3) [2021] FCA 869).

4.1    The Agreed Issues

48    The SAID identifies the following issues in dispute to be decided in the Separate Questions hearing:

(1)    WY Issue 1 - Should Jack Comeagain Snr, Biddy Wittamurra, Fanny (Judy) Taylor/Papertalk/Comeagain and/or Lottie Hannah be added to Schedule 7, item (a) of the WY Consent Minute as ancestors for the native title holders, or is any one of them a descendant of a person in Schedule 7, item (a) of the WY Consent Minute?

(2)    For clarity I use the name, Fanny Taylor, for the woman named alternatively as Fanny (Judy) Taylor/Papertalk/Comeagain.

(3)    Nanda Issue 1 - Did the WY People at sovereignty hold rights and interests in the land and waters of the Nanda Area in accordance with the traditional laws and customs of the Wajarri Society?

(4)    Nanda Issue 2 - Alternatively, did the Nanda People at sovereignty, hold rights and interests in the land and waters of the Nanda Area in accordance with the traditional laws and customs of the Nanda society?

(5)    Nanda Issue 3 - If the answer to Nanda Issue 1 is “yes”, have the WY People continued to acknowledge and observe, substantially uninterrupted from sovereignty to the present day, their traditional laws and customs such that they have rights and interests in, and a traditional connection to, the land and waters of the Nanda Area?

(6)    Nanda Issue 4 - If the answer to Nanda Issue 3 is “yes”, what is the nature and extent of the native title rights and interests in land and waters held by the WY People in the Nanda Area, including with respect to the operation of ss 47, 47A and/or 47B of the NTA?

(7)    Nanda Issue 5 - Is the MW Applicant authorised to make the claim that the WY People hold native title rights and interests in the Nanda Area. If not, is an order under s 84D(4) of the NTA appropriate? (This issue is separate from Nanda Issues 1-4).

4.2    The Agreed Facts

49    The agreed facts include the following.

50    In relation to the WY Overlap Area:

(1)    At sovereignty, the WY People were members of the Wajarri Society that acknowledged and observed a normative system of traditional laws and customs, and were in occupation of, and held rights and interests in, the land and waters which comprise the WY Area.

(2)    The members of the WY People have remained, from sovereignty to the present, a body of persons united in and by the acknowledgement and observance of a body of traditional laws and customs.

(3)    The traditional laws and customs of the WY People have, from sovereignty to the present, continued to be acknowledged and observed substantially uninterrupted by members of the WY People in the WY Area.

(4)    The WY People hold native title rights and interests in, and have a connection to, the WY Area in accordance with their traditional laws and customs in the manner and terms described in the WY Consent Minute (subject to the resolution of WY Issue 1).

51    In relation to the Nanda Overlap Area, if the answer to Nanda Issue 2 is “yes” (i.e. at sovereignty, the Nanda People held rights and interests in the Nanda Overlap Area):

(1)    The members of the Nanda People have remained, from sovereignty to the present, a body of persons united in and by the acknowledgement and observance of a body of traditional laws and customs.

(2)    The traditional laws and customs of the Nanda People have, from sovereignty to the present, continued to be acknowledged and observed substantially uninterrupted by members of the Nanda People.

(3)    The Nanda People hold native title rights and interests in, and have a connection to, the Nanda Area in accordance with their traditional laws and customs in the manner and terms described in the Nanda Consent Minute.

(4)    The Court should make the determination sought in the Nanda Consent Minute and that the MW Application should be dismissed to the extent that it overlaps the Nanda Area.

5.    Relevant principles

52    There was no material disagreement between the parties as to the principles applicable in an application for summary judgment. Their disagreement concerned the application of those principles in the circumstances of the case.

53    Section 31A of the FCA relevantly provides:

31A    Summary judgment

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

(4)    This section does not limit any powers that the Court has apart from this section.

(Emphasis added.)

54    Rule 26.01(1)(a) of the Rules relevantly provides that a party may apply to the Court for an order for summary judgment against another party on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.

55    Section 31A(3) of the FCA makes it clear that a conclusion to grant summary judgment does not require that the Court be satisfied that the proceeding or part thereof is hopeless or bound to fail. The authorities show that the focus of the Court’s enquiry must be whether there is a reasonable prospect of prosecuting the proceeding; which is “not an inquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail”: Spencer at [52].

56    The principles which guide the exercise of the Court’s power under s 31A of the FCA were usefully summarised by Griffiths J in Harkin on behalf of the Nanatadjarra People v State of Western Australia (No 2) [2021] FCA 3 at [12]-[14], citing McKerracher J in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978, as follows:

[12]    The general legal principles guiding the exercise of the Court’s power under s 31A(2) of the FCA Act are well known. It is convenient to reproduce McKerracher J’s helpful analysis and description of the principles in Buurabalayji Thalanyji Aboriginal Corporation v Onslow Salt Pty Ltd (No 2) [2018] FCA 978 at [3] (with particular reference to summary dismissal being sought by a respondent party, as is the case here):

Without reference to all the well-known authorities, the parties agree that it is well established that the Court may give judgment for a defending party in relation to the whole or any part of a proceeding where the Court is satisfied that the prosecuting party has no reasonable prospects of successfully prosecuting the proceeding or a part of the proceeding. Further:

•    the claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: s 31A of the Federal Court Act;

•    a reasonable prospect of success is one which is real, not fanciful or merely arguable: Rogers v Assets Loan Co Pty Ltd (2008) 250 ALR 82 per Logan J (at [41]);

•    there will be no prospect of success in circumstances where there is a defect in the pleadings which cannot be cured: Ship “Sam Hawk” v Reiter Petroleum Ltd (2016) 246 FCR 337 per Kenny and Besanko JJ (at [269]);

•     s 31A is amenable to resolving straightforward questions of law: Luck v University of Southern Queensland [2008] FCA 1582 per Logan J (at [16]). However, summary judgment may still be appropriate if a question raised is of some complexity: SK Foods LP v SK Foods Australia (in liq) (No 3) (2013) 214 FCR 543 per Flick J (at [115]);

•    if a prima facie case in support of summary judgment is established, the onus shifts to the opposing party to point to some factual or evidentiary issues making a trial necessary: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 per Gordon J (at [127]);

•    it is clear that the legislature’s intention in enacting s 31A was to lower the bar for obtaining summary judgment, including summary dismissal, below that fixed by previous authorities: Spencer v Commonwealth of Australia (2010) 241 CLR 118 per Hayne, Crennan, Kiefel and Bell JJ; Jefferson Ford per Gordon J (at [127]);

•    s 31A permits dismissal of a proceeding where an inquiry into the merits of the issues of law demonstrates the arguments are insufficiently strong to warrant the matter going to trial: McAleer v University of Western Australia (No 3) (2008) 171 FCR 499 per Siopis J (at [39] and the cases therein cited);

•    summary dismissal will not apply to ‘a real question of law that is serious, important or difficult, involves conflicting authority, or is apparently arguable yet novel’: Nichol v Discovery Africa Ltd (2016) 343 ALR 594 per Greenwood, McKerracher and Moshinsky JJ (at [134]);

•     the moving party bears the onus of persuading the Court the application has no reasonable prospects of success. The assessment of whether a proceeding has no reasonable prospects of success necessitates the making of a value judgement in the absence of a full and complete factual matrix and argument, with a result that the provision vests a discretion in the Court. That discretion includes whether to deal with the motion at once or at some later stage in the proceedings, when the legal and factual issues have been more clearly defined: Kimber v The Owners of Strata Plan No 48216 [2017] FCAFC 226 per Logan, Kerr and Farrell JJ (at [62]) quoting with approval Eliezer v University of Sydney (2015) 239 FCR 381 per Perry J (at [37]);

•    despite the threshold for summary dismissal having been lowered, it must still be exercised with caution. The power is not to be exercised lightly: Spencer v Commonwealth per Hayne, Crennan, Kiefel and Bell JJ (at [60]);

•    the Court does not, in such an application, conduct a ‘mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial’. Rather, it ‘requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial’: Australian Securities and Investments Commission v Cassimatis (2013) 220 FCR 256 per Reeves J (at [46]); and

•    each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant facts and circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect materials available to the Court for considering the application, for example, where the pleadings have been exchanged, or discovery of documents has occurred: Cassimatis per Reeves J (at [46]).

[13]    Particular caution needs to be exercised in determining whether summary dismissal should be granted in circumstances where there are factual disputes and the evidence is not in its final form (see Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 at [43]-[45] per Rares J).

[14]    The need for caution before dismissing an action summarily was emphasised by the Full Court in Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 at [4] (see also Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [22] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ):

… to summarily dismiss a proceeding, and thereby preclude a person from having their case determined on its merits at a final hearing, is a serious step taken only with great care and if it is possible to conclude with confidence that there is no reasonable prospect of success; this is so despite the fact that under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (the Court Act) the power to summarily dismiss a proceeding is not dependent on the case being “hopeless” or “bound to fail” for it to have no reasonable prospect of success (Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [17]-[26]).

57    Summary judgment is granted only “if it is possible to conclude with confidence that there is no reasonable prospect of success”: Danthanarayana v Commonwealth [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ); Sop and Sop Pty Ltd v Commissioner for Taxation [2019] FCA 102 at [14]-[15] (Kenny J). This involves practical consideration as to whether the applicants have a more than fanciful prospect of success: Spencer at [25] (French CJ and Gummow J).

58    In Budby on behalf of the Barada Barada People v State of Queensland [2013] FCAFC 149 at [10] (Mansfield, Dowsett and Jagot JJ), the Full Court said:

While it is easy to understand the primary judge’s frustration with the appellant’s dilatory conduct and lack of real progress over a substantial period of time, the discretion to summarily dismiss a proceeding on the basis that it lacks reasonable prospects of success requires not only caution (because a party is thereby deprived of its opportunity for a hearing on the merits) but also an assessment of the substance of the native title claim having regard to the material both available and likely to be adduced. If it appears from that material that there is a real basis for the claim then the mere fact that the claim is in dispute, or that contrary material is available, or that the existing material is preliminary or incomplete is not a proper basis for the exercise of the power of summary dismissal on the ground of lack of reasonable prospects of success.

(Emphasis added.)

59    In Corunna v South West Aboriginal Land and Sea Council [2015] FCA 491; 235 FCR 40 at [21]-[22] Barker J explained:

[21]    By s 31A of the Federal Court of Australia Act the Court may grant summary judgment where it is satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding.

[22]    In Spencer v Commonwealth of Australia (2010) 241 CLR 118 the plurality (Hayne, Crennan, Kiefel and Bell JJ) at [60] said of the expression “no reasonable prospect” that full weight must be given to it as a whole. Their Honours confirmed that the power to dismiss an action summarily is not to be exercised lightly, but their Honours also emphasised that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. Thus, s 31A(3) provides that the certainty of failure (“hopeless” or “bound to fail”) need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action.

(Emphasis added.)

6.    Onus of proof and standard of proof

60    It is the MW applicant which alleges:

(a)    that one or more of Jack Comeagain Snr, Biddy Wittamurra, Fanny Taylor and/or Lottie Hannah should be added as additional apical ancestors to the WY Application, or is a descendant of one of the existing apical ancestors, such that their descendants should be included in the WY native title claim group (WY Issue 1);

(b)    that, at sovereignty, the WY People held rights and interests in the land and waters of the Nanda Overlap Area in accordance with the traditional laws and customs of the Wajarri Society (Nanda Issue 1); and

(c)    if the answer to Nanda Issue 1 is “yes”, that the WY People have continued to acknowledge and observe, substantially uninterrupted from sovereignty to the present day, their traditional laws and customs such that they have rights and interests in, and a traditional connection to, the land and waters of the Nanda Overlap Area (Nanda Issue 3).

It will have the onus to establish those matters in the Separate Questions hearing. However, as the moving party in the summary judgment application, the N&WY applicants have the onus to establish that the MW applicant has no reasonable prospect of success on its case on each of the Separate Questions.

61    The standard of proof in the summary judgment application (and in the Separate Questions hearing) is the ordinary civil standard under s 140(1) of the Evidence Act 1995 (Cth) (Evidence Act), being the balance of probabilities. Section 140(2) of that Act requires that, in deciding whether it is satisfied that a party has proved its case on the balance of probabilities, the Court shall take into account the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged, when determining the degree of persuasion required. Section 140(2) does not only relate to issues of proof so far as the entire case of a party is concerned, but also so far as individual elements of that case are concerned: Leslie v Graham [2002] FCA 32 at [57] (Branson J). As explained in Qantas Airways Ltd v Gama [2008] FCAFC 69; 167 FCR 537 at [139] (Branson J), s 140(2) recognises that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved and the circumstances in which it is sought to be proved.

7.    The Barber Report

62    Mr Barber, an anthropologist, was briefed by the solicitors for the MW applicant to undertake research in relation to the MW Application and to provide a report to the solicitors for use in the MW Application. Mr Barber was requested to provide opinions on a series of specific questions (the Questions).

63    Relevantly:

(a)    in Chapter 1 – Introduction, Mr Barber explained the extent of his discussions with the informants that informed his opinions. He said that his informants were Leedham Papertalk, Charmaine Green and Glenda Jackamarra (defined as “the Claimants”). Mr Barber stated:

[25]    I travelled to the Claim area on 3 August 2023, and held discussions with Claimants about their rights and interests in Mullewa during the period 3 to 13 August 2023. These discussions were primarily held with Leedham Papertalk in Mullewa. Further brief conversations were held with Charmaine Green and Glenda Jackamarra in Geraldton on 13 August 2023 (day returned from Geraldton to Perth).

[26]     Further Telephone conversations were held with Leedham Papertalk and Charmaine Green to check details and discussing concepts during the period 14th August 2023 to 17th September 2023.

(b)    in Chapter III – Literature: Local Organisation of the Claim Area, Mr Barber referred to early historical anthropological research in relation to the Wajarri People and their country. In summary, he opined that Bates (1907-1909) located the Wajarri in the vicinity of the MW claim area; Brown (1912) located the Wajarri in the vicinity of the head of the Murchison River; Tindale (1940 and 1974) located the Wajarri in the MW claim area, although noting some extension of Wajarri interests towards the coast in the post-European contact period; Berndt & Berndt (1977) made similar findings partially in reliance on the works of Bates, Brown and Tindale; and the later work of Thieberger (1993) generally affirmed the location of Wajarri interests and the usage of Wajarri language.

(c)    in Chapter IV - The Principles of Local and Social Organisation of the Claim Area, Mr Barber noted that the Claimants allege that the MW claim area lies within the broader Wajarri estate. In this chapter:

(i)    under the sub-heading Adoption (which is relevant to Lottie Hannah, who the MW applicant alleges was a Wajarri person on the basis of adoption), Mr Barber opined:

[148]    Among the Wadjari, children who are adopted as infants, and live with and are imbedded in the social life of the Wadjari, are regarded as part of the group. These children inherit full rights and interests in the Wadjari estate.

[149]    In some circumstances older individuals may come to have close association with the family and become regarded as close family members. These individuals, however, are not accorded full rights to the group. They are supported and fostered by the group and treated as close kinsmen. They cannot, however, lead or make decisions for the group, although they are expected to support and facilitate the actions of the Wadjari leaders and the group.

(ii)    under the sub-heading The Section System and Traditional Land Tenure, Mr Barber said:

[150]    The claimants have detailed genealogical knowledge of their own and neighbouring groups and longstanding relationships with individuals and groups across the Gascoyne, Pilbara and Western Desert areas. These relationships, and reference and address in these interactions, are made in this idiom. The Claimants are also able to use the section system, as a system of reference and address in their interactions with East Kimberley, Pilbara and Western Desert groups, particularly during ceremonial engagement.

[151]    The Claimants, however, argue that the system was adopted in recent times from their northern and eastern neighbours.

(iii)    under the sub-heading Composition of the Wadjari (Thagarda Wadjari), Mr Barber said:

[152]    The ‘Muluwa/Mullewa Wadjari descend from ancestors of the Wadjari language group which has traditional rights and interests which include the current Claim area.

[153]    The use of the term Thagarda by the Claimants is synonymous with ‘law-abiding’ Wadjari, or Wadjari that follow traditional law and custom. In this respect the Claimants are lineages of the broader language group. The Claimants are of the view that through participation in Wadjari law and culture that they maintain the law and culture of the Claim area for their own family and the broader Wadjari group. In particular, the Claimants believe that they maintain the Wadjari traditional responsibilities to their land by continuing to follow and practice Wadjari traditional law through participation’ as Wadjari traditional law exponents’ in the regional traditional law of the Gascoyne, Pilbara, Western Desert and Kimberley’s.

[154]    The Claimants relate that their forebears followed their law and assiduously maintained their culture and they lived within and around the Claim area on Wadjari land from prior to sovereignty to the present. The Claimants argue that they, like their forebears continue to attend and actively participate in regional circumcision and subincision ceremonies and initiate their children.

[155]    The Claimants also describe themselves as being members of the Wadjari language group. The Claimants also describe themselves as Thagarda Wadjari a classification founded on the proposition that their families practiced Wadjari law and custom from the remote past to the present. The Thagarda Wadjari regard other lineages of the Wadjari as kinsmen of the same language group who also have rights and interests in the Mullewa Wadjari claim area.

(iv)    Mr Barber then went on to provide the following opinions regarding the lineages of the Thawarda Wajarri People:

[156]    The Thagarda Wadjari can be described as being composed of three lineages.

[157]    The first lineage descends from Nellie (born c 1850). The Claimants have no direct knowledge of her background but believe that she was Wadjari. There is no knowledge of her husband. She had a daughter Biddy Wittamura (born c. 1871) who is also regarded as Thagarda Wadjari. Biddy married Anthony. There is no knowledge of the group of Anthony, who died at Billabong [sic] in 1923 whilst on a droving trip from Mingenew.

[158]    Biddy and Anthony had a daughter Fanny ‘Judy’ Taylor (Thagarda Wadjari) who also married a Thagarda Wadjari man, Jack Comeagain snr.

[159]    Fanny ‘Judy’ Taylor also married an unnamed man and had two daughters Milly Taylor Flanagan and Lottie Hannah. Lottie Hannah had a number of children by unnamed father/s. The children of Lottie Hannah were adopted by Ned Papertalk and Jack Comagain (Snr) both Thagarda Wadjari. These children took the Hannah surname and are regarded as Thagarda Wadjari.

[160]    Jack Comeagain had a number of other children, including Jack Comeagain Jr. These children are also regarded as Thagarda Wadjari. Jack Comeagain Jr married Jean Papertalk, also a Thagarda Wadjari. The descendants of Jack Comeagain Jr and Jean Papertalk are regarded as Thagarda Wadjari.

[161]    The second Thagarda Wadjari lineage descends from a Thagarda Wadjari man, Apbara who married Dharingga (group unknown). They had a son Bridi who was also called ‘Papertalk’.

[162]    Bridi (Thagarda Wadjari) had a son Midalu, Ned Papertalk who married Guki, Alice Darby. The descendants of Ned Papertalk are regarded as Thagarda Wadjari.

[163]    A third lineage descends from George Merritt (Yilirrbirri), also a Thagarda Wadjari man. He had a son Alfred Merritt. Alfred Merritt married Minnie Cockel (group unknown). The children of Alfred Merritt and their descendants are regarded as Thagarda Wadjari and part of the Claim group.

[164]    The genealogical data indicates that the forebears of the Mullewa Wadjari Claimants resided in the vicinity of the Claim area. The current Thagarda Wadjari reside predominately in Mullewa in the vicinity of the Claim area and Geraldton, others live and work in areas from Perth to the mining towns of the Pilbara.

Those are the only express references to Jack Comeagain Snr, Biddy Wittamurra, Fanny Taylor and Lottie Hannah in the Barber Report, except where Mr Barber referred to them in the genealogical chart in Appendix 3, and where he provides his opinions on the specific Questions.

(d)    in Chapter V - Ceremonies and Rituals, under the sub-heading Secular and Religious Leadership, Mr Barber set out what he said he was told by the Claimants, and expressed opinions in relation to their acknowledgement and observance of traditional laws and customs and maintenance of law and culture for the MW claim area. He opined that the information he was provided indicated an orderly system of transferral responsibility for law and culture from generation to generation within the MW claim group, from one senior leader onto the next senior and “best” active law man.

(e)    in Chapter VI – Conclusion, Mr Barber made some general findings as to the extent of Wajarri country based on historical anthropological research and his interviews with the Claimants. Mr Barber then provided his opinions on the specific Questions he was asked. For clarity I set out those opinions when dealing with each issue for decision.

(f)    Appendices 1 and 2 of the Barber Report comprise maps prepared by Mr Barber, he said from information provided by the Claimants, showing the travels of mythical anthropomorphic beings during the Dreamings, which travels created Wajarri country and which beings have continuing totemic significance to the Wajarri People.

(g)    Appendix 3 of the Barber Report comprises genealogical information regarding the MW People prepared by Mr Barber, he says from information provided by the Claimants including in relation to Jack Comeagain Snr, Biddy Wittamura, Fanny Taylor and/or Lottie Hannah and their descendants.

7.1    Whether the Barber Report is admissible

64    The N&WY applicants objected to the admissibility of numerous identified paragraphs of the Barber Report. The MW applicant denied that the report was inadmissible but did not respond to the objections by reference to the impugned paragraphs or opinions.

65    Section 76(1) of the Evidence Act provides that “evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”. Section 79(1) is an exception to the opinion rule in s 76(1). It provides:

If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

66    In Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) explained that for opinion evidence to be admissible under s 79(1) of the Evidence Act:

(a)    the evidence must satisfy the two criteria expressed in the provision: (i) that the witness who gives the opinion evidence “has specialised knowledge based on the person’s training, study or experience”; and (ii) that the opinion evidence by the witness “is wholly or substantially based on that knowledge”: Dasreef at [32];

(b)    the expert’s opinion evidence must be presented in a form which makes it possible to determine whether the requirements of s 79 have been satisfied (i.e. that the opinion is wholly or substantially based on specialised knowledge based on training, study or experience): HG v The Queen [1999] HCA 2; 197 CLR 414 at [39] (Gleeson CJ), approved in Dasreef at [36]. It is crucial that the expert states the facts and assumptions upon which the opinion is based and expose how his or her specialised knowledge had been applied to those facts and assumptions so as to support the opinion: Dasreef at [64] and [101] (Heydon J); and

(c)    the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is an expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [85] (Heydon JA), approved in Dasreef at [37].

Any failure to demonstrate that an opinion expressed by a witness is based on the witness’ specialised knowledge is a matter that goes to the admissibility of the evidence, not its weight: Dasreef at [42].

67    The N&WY applicants did not contend that Mr Barber lacked specialised knowledge as an anthropologist. Rather, they submitted that his opinions on the salient issues, particularly the issues arising under WY Issue 1, Nanda Issue 1 and Nanda Issue 3 are inadmissible because the Barber Report:

(a)    is not presented in a form which makes it possible to determine whether the requirements of s 79 have been satisfied (i.e. that the opinion is wholly or substantially based on the specialised knowledge he acquired through his training, study or experience as an anthropologist);

(b)    does not reveal the facts or assumptions upon which Mr Barber’s opinions are based and does not expose how Mr Barber had applied his specialised knowledge as an anthropologist to those observed facts or assumptions so as to support his opinions;

(c)    does not expose Mr Barber’s reasoning process leading to the salient opinions he expressed; and

(d)    provides opinions which are speculative.

68    I deal with the admissibility of Mr Barber’s opinion when dealing with each of the issues for decision. For the present, it suffices to provide the following example of the deficiencies with which the Barber Report is littered. Mr Barber opined as follows (at [240]-[241]):

[240]    The genealogical data presented in Appendix 3 was provided by the Claimants. This data indicates that the Claimants descend from Wadjari ancestors, who held rights and interests in and around the Claim area in the mid to late 19th century. It also suggests that the Thagarda Wadjari are members of the Wadjari language group, the members of which have traditional rights and interests in and around the Claim area.

[241]    The genealogical information suggests that it is arguable that the Wadjari system of native title was cognatic from the latter 1850s a period of significant social change. From that time, and for the span of time of the Claimant genealogical knowledge, it appears that rights and interests continue to be conveyed to Wadjari descendants by cognatic descent.

69    There Mr Barber said that the genealogical information he set out in Appendix 3 in relation to what he describes as the “first lineage” of the MW People (see excerpt at [63(c)(iv)] above) (being the descendants of Jack Comeagain Snr, Biddy Wittamura, Fanny Taylor and Lottie Hannah) was provided to him by the Claimants. Based on that information he expressed the view that the MW native title claim group are descendants of Wajarri ancestors who held rights and interests “in and around” the MW claim area at or around effective sovereignty, which rights and interests had been conveyed to them by cognatic descent.

70    The MW applicant did not address the objections with sufficient specificity. Rather, it submitted that the Barber Report made it clear that the source of the genealogical information in Appendix 3 and of the conclusions Mr Barber reached were based on the discussions he had with the Claimants in August and September 2023. That submission failed to come to grips with the heart of the N&WY applicants’ objections.

71    Those opinions are inadmissible because:

(a)    the Barber Report did not identify which of Dr Green, Mr Papertalk and/or Ms Jackamarra provided the information said to support his opinions that:

(i)    Jack Comeagain Snr, Biddy Wittamura, Fanny Taylor and/or Lottie Hannah were Wajarri people who, at effective sovereignty, held rights and interests “in and around” the MW claim area; or

(ii)    Dr Green, Mr Papertalk and Ms Jackamarra had been conveyed those rights and interests by cognatic descent;

(b)    more importantly, the Barber Report did not identify the nature of the information they are said to have provided which is said to justify the opinions Mr Barber expressed;

(c)    further, as Senior Counsel for the MW applicant accepted, for the purposes of the summary judgment application it is appropriate for the Court to infer that the witness statements of Dr Green, Mr Papertalk and Ms Jackamarra represent the best information that they could give: see T20.27. It would be wrong to approach the Barber Report on the basis that the Claimants were able to provide Mr Barber with better information than that contained in their lay witness statements, particularly when the Barber Report does not identify which of them said what, nor the nature of the information they provided which justified the opinions expressed. And where the witness statements of Dr Green, Mr Papertalk and/or Ms Jackamarra do not provide a factual foundation for the opinions expressed by Mr Barber, the Barber Report does not expose what other information those informants provided to justify the opinions expressed; and

(d)    the genealogical information in Appendix 3 does not disclose any factual foundation to support the opinions that Jack Comeagain Snr, Biddy Wittamura, Fanny Taylor and/or Lottie Hannah were Wajarri people who, at effective sovereignty, held rights and interests in the MW claim area. Nor do the witness statements of Dr Green, Mr Papertalk and Ms Jackamarra provide a factual foundation for such a conclusion. For example, the MW applicant belatedly accepted that there is no evidence that Biddy Wittamura was a Wajarri ancestor with rights and interests in the MW claim area.

72    Fundamentally, the Barber Report is inadmissible because it is not presented in a form which makes it possible to determine whether the opinions which are significant to WY Issue 1, Nanda Issue 1 and Nanda Issue 3 are wholly or substantially based on Mr Barber’s specialised knowledge based on training, study or experience. It does not reveal the facts or assumptions upon which the opinions are based. It does not expose how Mr Barber applied his specialised knowledge as an anthropologist to the observed facts or assumptions to justify the opinions he expressed, and it does not expose the reasoning process leading to the opinions he expressed. As I will explain, sometimes the opinions appear to be little more than speculation.

73    Further, while this does not go to admissibility, the “general findings” in the Barber Report regarding the extent of Wajarri country are imprecise and rise no higher than broad statements that the Wajarri had, and have, traditional rights and interests “in”, “in the vicinity of” and “in and around” the MW claim area. And the opinions regarding the continuity of observance and acknowledgment of traditional laws and customs by the Wajarri people expressed in Chapter V - Ceremonies and Rituals, under the sub-heading Secular and Religious Leadership, are no more geographically specific than references to “in”, “within and around” or “within the vicinity of” the MW claim area. Therefore, if (contrary to my view) the Barber Report is admissible, the opinions are of little or no assistance to the MW applicant in establishing that:

(a)    at sovereignty, the WY People held rights and interests in the land and waters of the Nanda Overlap Area in accordance with the traditional laws and customs of the Wajarri Society (Nanda Issue 1); or

(b)    the WY People have continued to acknowledge and observe, substantially uninterrupted from sovereignty to the present day, their traditional laws and customs such that they have rights and interests in, and a traditional connection to, the land and waters of the Nanda Overlap Area (Nanda Issue 3).

8.    WY Issue 1 - Whether Additional Apical Ancestors should be added to the WY Application

74    The N&WY applicants had the onus to establish that the MW applicant has no reasonable prospect of successfully prosecuting its case in relation to WY Issue 1, which is as follows:

Should Jack Comeagain Senior, Biddy Wittamurra, Fanny (Judy) Taylor/Papertalk/Comeagain and/or Lottie Hannah be added to Schedule 7, item (a) of the WY Consent Minute as ancestors for the native title holders, or is any one of them a descendant of a person in Schedule 7, item (a) of the WY Consent Minute?

75    The MW applicant accepted that there is no evidence that Biddy Wittamurra was a member of the Wajarri People and withdrew the contention that she should be added as a WY apical ancestor or be found to be a descendant of one of the identified apical ancestors.

8.1    The pleadings and evidence regarding Jack Comeagain Snr

76    The MW SSFIC and the MW F&BP are effectively the pleadings which set out the MW applicant’s case.

77    In relation to Jack Comeagain Snr the MW SSFIC alleges as follows:

[5]    The MW Applicant says that Jack Comeagain (Snr) was a Wajarri man from the Murchison region around the Boolardy area, and consequently, held rights and interests in the [WY Overlap Area] under the system of traditional laws and customs observed by the society to which the MW Claimants and WY People belong.

…

[7]    The MW Applicant says that Fanny Taylor married Jack Comeagain (Snr) circa 1915.

[8]    The MW Applicant says that, following their marriage, Jack Comeagain (Snr) adopted customarily (or grew up) Fanny Taylor’s children from prior to the marriage, namely her eldest daughter Milly, and her second eldest daughter Lottie.

[9]    The MW Applicant says that, by reason of her adoption by Jack Comeagain (Snr), Lottie Hannah became entitled to rights and interests in Jack Comeagain Snr’s country, which comprises Wadjari country, pursuant to the traditional laws and customs of the normative society to which the MW Claimants and Wadjarri People belong.

78    The MW F&BP provides the following further particulars:

[4]    As to paragraphs [4] to [11] of the [MW SSFIC], the nature of the traditional laws and customs by which each of the following are alleged to have a had a ‘connection’ with the ‘WY Area’ (as defined in [3(a)] of the [MW SSFIC]):

A.    Jack Comeagain Senior;

…

in accordance with traditional laws and customs which accord them rights and interests on the basis of descent from ancestors present in the WY area at and before the time of effective sovereignty being asserted by the British Crown in the area, including a custom of recognition of descent on the basis of adoption by a parent.

[5]    The following facts are related to the identification of the following -

A.    Jack Comeagain Senior: oral history of Wajarri Yamatji claim group members of Jack Comeagain Snr as a ‘full blood’ Wajarri man ‘from the Murchison’ travelling from Mullewa to Murchison region stations to attend ‘culture meetings’ including at Wooleen Station as a venue for ceremonies; and participation in ceremonies performed at Mullewa Reserve and nearby law grounds;

79    Each of the three MW lay witness statements made reference to Jack Comeagain Snr.

80    Dr Green said:

[53]    Fanny then later married Jack Comeagain Senior and they had more children, including Jack Comeagain Junior. Jack Comeagain Junior was married my mother’s sister, Jean Papertalk.

[54]    As Jack Comeagain Senior was married Fanny, he was considered has having grown up (or adopted) both Millie and Lottie.

…

[56]    I remember my father used to refer to Jack Comeagain Junior as a Badimia man, but Wajarri and Badimia are very close geographically and culturally.

81    Mr Papertalk said:

[70]    The old people told me that Fanny’s daughter, Lottie, was adopted by Jack Comeagain Senior at some point and she moved in from another group into the Mullewa Wadjari area. I was told that Lottie’s father was Ned Papertalk.

82    Ms Jackamarra said:

[32]    I was told that Fanny’s husband was Jack Comeagain Senior (Old Jack). We refer to him as Pop. I was told that Fanny met Old Jack in the Murchison area. Old Jack is buried at the Old Pioneer Cemetery in Mullewa.

[33]    Senior Wajarri elder Geoffrey Mongoo once said to my partner, Anthony Dann, that he saw Jack Comeagain Junior (the son of Fanny and Old Jack) at the old ceremony grounds up in the Murchison. Only Wajarri ceremony men were allowed to be at the law and ceremony grounds in Wajarri Country. Old Jack and Jack Comeagain Junior were Wajarri law men.

83    The Barber Report expressed the following opinions in relation to Jack Comeagain Snr:

(a)    in the following passage (earlier set out at [63(c)(iv)] above)) Mr Barber opined (at [159]) that Fanny Taylor married “a Thagarda Wadjari man, Jack Comeagain Snr.” In that part of the Barber Report he opined:

[156]    The Thagarda Wadjari can be described as being composed of three lineages.

[157]    The first lineage descends from Nellie (born c 1850). The Claimants have no direct knowledge of her background but believe that she was Wadjari. There is no knowledge of her husband. She had a daughter Biddy Wittamura (born c. 1871) who is also regarded as Thagarda Wadjari. Biddy married Anthony. There is no knowledge of the group of Anthony, who died at Billabong [sic] in 1923 whilst on a droving trip from Mingenew.

[158]    Biddy and Anthony had a daughter Fanny ‘Judy’ Taylor (Thagarda Wadjari) who also married a Thagarda Wadjari man, Jack Comeagain snr.

[159]    Fanny ‘Judy’ Taylor also married an unnamed man and had two daughters Milly Taylor Flanagan and Lottie Hannah. Lottie Hannah had a number of children by unnamed father/s. The children of Lottie Hannah were adopted by Ned Papertalk and Jack Comagain (Snr) both Thagarda Wadjari. These children took the Hannah surname and are regarded as Thagarda Wadjari.

[160]    Jack Comeagain had a number of other children, including Jack Comeagain Jr. These children are also regarded as Thagarda Wadjari. Jack Comeagain Jr married Jean Papertalk, also a Thagarda Wadjari. The descendants of Jack Comeagain Jr and Jean Papertalk are regarded as Thagarda Wadjari.

Those paragraphs do not provide a factual foundation for the opinion that Jack Comeagain Snr was a Thawarda Wajarri man, and the Barber Report does not contain any other references to Jack Comeagain Snr other than in the genealogical information in Appendix 3 and in answer to the specific Questions.

(b)    The entry for Jack Comeagain Snr in Appendix 3 states:

nm2: Jack

nm3: Comeagain (snr)

pod: Mullewa, pioneer Cemetery

dod: c. 1940s

cty: Thargarda Wajarri

res: c. 1890s in claim area

notes: work in Boolardy area

notes2: north of rabbit proof fence LP info

The abbreviations “cty” and “res” mean “country” and “residence” respectively.

(c)    Mr Barber said the following in answer to the Questions regarding Jack Comeagain Snr:

(i)    Question (a):

Did Jack Comeagain Senior possess rights and interests under traditional law and custom in any Mullewa Wadjari Remaining Claim Area [meaning the Nanda Overlap Area] or Wajarri Yamatji area [meaning the WY Overlap Area], and if so, which part or parts of the Mullewa Wadjari Remaining Claim Area or Wajarri Yamatji area?

Answer:

The genealogical information suggests that Jack Comeagain Senior had rights and interests under traditional law and Custom in the entirety of the Mullewa Wadjari claim area as described on Map 1.

(ii)    Question (b):

Was Jack Comeagain Senior a Wajarri person?

Answer:

Jack Comeagain appears to have been a Senior Wajarri person, who was engaged in Wadjari law and Custom as of a right.

(iii)    Question (c):

Where was Jack Comeagain Senior born?

Answer:

The birthplace of Jack Comeagain Senior is not known. It is assumed that he was born within the Claim area or the broader Wadjari estate (rights and interests in the Wadjari system as described are conveyed by descent, not by birth location per se).

(iv)    Question (d):

Who were the parents of Jack Comeagain Senior?

Answer:

The parents of Jack Comeagain Senior are not known. It is assumed that Jack Comeagain Seniors father was Wadjari from the Claim area and the broader Wadjari estate.

(v)    Question (e):

What places is Jack Comeagain Senior associated with in the Murchison region?

Answer:

Jack Comeagain Senior is considered to have rights and interests within broader Wadjari land and within the Claim.

8.2    The pleadings and evidence regarding Fanny Taylor/Papertalk/Comeagain

84    In relation to Fanny Taylor the MW SSFIC alleges as follows:

[6]    The MW Applicant says that Fanny Taylor/Papertalk/Comeagain (also spelt Kummagin/Commigan/Commigain) (also known as ‘Mingenoogoo’) was the mother of Milly Taylor/Flanagan (born 1905 – 1910/1909), Lottie Hannah (born 1905 – 1910), Jack Comeagain (Jnr) (born 1915), Henry Comeagain (born 1917), May Comeagain (born 1919), Gracie Comeagain (born 1919), Doreen Comeagain (born 1922), David Comeagain (born 1930).

[7]    The MW Applicant says that Fanny Taylor married Jack Comeagain (Snr) circa 1915.

…

[11]    The MW Applicant says that Biddy Witamurra born circa 1871 and her daughter Fanny Taylor/Papertalk/Comeagain (also spelt Kummagin/Commigan/Commigain) (also known as ‘Mingenoogoo’) had a connection in accordance with traditional laws acknowledged and traditional customs observed by WY People and Mullewa Wadjari People to the WY area, including the area in the vicinity of the Murchison River, Woolgarong Station and Billabalong Station.

85    The MW F&BP provides the following further particulars:

[4]    As to paragraphs [4] to [11] of the [MW SSFIC], the nature of the traditional laws and customs by which each of the following are alleged to have a had a ‘connection’ with the ‘WY Area’ (as defined in [3(a)] of the MW SSFIC): -

…

C.    Fanny (Judy) Taylor/Papertalk/Comeagain;

…

in accordance with traditional laws and customs which accord them rights and interests on the basis of descent from ancestors present in the WY area at and before the time of effective sovereignty being asserted by the British Crown in the area, including a custom of recognition of descent on the basis of adoption by a parent.

[5]    The following facts are related to the identification of the following -

…

C.    Fanny (Judy) Taylor/Papetalk/Comeagain: daughter of Biddy Witamurra travelled with Fink during her field work at stations in the Murchison region to introduce her to people and was photographed with Fink in the mid-1950s in the Murchison region and, according to family oral tradition recounted by Lottie Hannah, was present in the MW claim area, travelling there with her son Jack Comeagain (Jnr); and her son and all her daughters ended up out in the Murchison, except her second youngest daughter May Comeagain;

86    Each of the three MW lay witness statements made reference to Fanny Taylor.

87    Dr Green said:

[50]    I met Ruth Fink, the Anthropologist in Sydney, who recalled the work she did with Fanny Taylor in Mullewa and the Murchison in the mid 1950’s. I introduced Glenda Jackamarra to Ruth Finke [sic] who showed Glenda Jackamarra documents and photographs of Fanny Taylor. Ruth Finke [sic] spoke of how Fanny Taylor assisted her with research field work in Mullewa, Yalgoo and in the Murchison. Fanny Taylor was with Ruth Fink, the Anthropologist, when Ruth did her work in the Murchison River area and that Fanny Taylor would not have been able to do that work with her if she was not accepted as a member of the Wajarri group.

88    Mr Papertalk said:

[70]    The old people told me that Fanny’s daughter, Lottie, was adopted by Jack Comeagain Senior at some point and she moved in from another group into the Mullewa Wadjari area. I was told that Lottie’s father was Ned Papertalk.

89    Ms Jackamarra said:

[5]    My mother was Margaret Jackamarra (nee Hannah).

[6]    My maternal grandmother was Lottie Hannah.

[7]    My maternal great-grandmother was Fanny "Judy" Comeagain (nee Taylor). Fanny was also known as Judy Taylor or Judy Comeagain.

…

[25]    I follow my mother's, my maternal grandmother, and my maternal greatgrandmother's country.

[26]    They belonged to the Mullewa Wadjari country, and I am connected to this country through them. The Hannah Family inherited this connection from Fanny and Lottie.

…

[39]    Fanny and Lottie had a connection to the overlap area through Old Jack, Fanny’s husband. I grew up being told by members of my family that Lottie, and her older sister Millie, were Old Jack’s daughters.

…

[42]    I was told by the old people that Fanny was acknowledged and accorded respect by other senior Wajarri people, such as Eulie Dingo, Laurie Donnelly and Jack Darby, who I know to be senior Wajarri elders.

[43]    I believe it is significant that Fanny was in the company of other Wajarri elders on country with anthropologist, Ruth Fink, because it shows that they acknowledged her connection to that country. In Wajarri culture, Fanny would not have been permitted to be on country with a visitor unless she was recognised as having such a connection.

[44]    I travelled to Sydney about 5 years ago with Charmaine Green and met with Ruth Fink (who I learnt passed away recently). Fanny was Ruth’s guide and translator in the Murchison region while conducting fieldwork in the 1960’s.

[45]    Ruth Fink gave me an old photo she took of Fanny Comeagain, Eulie Dingo and Jack Darby.

[46]    The Hannah family have a connection to the overlap area, not through the descendants of Angelina (mother of Alice Darby), but through Old Jack and Fanny. I was told stories by the old people that this was Fanny’s country and she spent time out there.

90    Mr Barber expressed the following opinions in relation to Fanny Taylor.

91    In the passage from the Barber Report at [156]-[160] (set out above at [83]), Mr Barber opined (at [157]) that Fanny Taylor’s mother, Biddy Wittamura, was “regarded as Thagarda Wadjari” and that Mr Barber has “no knowledge” as to any Aboriginal group to which Fanny Taylor’s father was associated. He said (at [158]) that their daughter, Fanny Taylor, was Thawarda Wajarri and that Fanny Taylor married “a Thagarda Wadjari man, Jack Comeagain snr.”

92    However, the MW applicant no longer contends that Biddy Wittamura was a member of the Thawarda Wajarri People, and has accepted that there is no evidence regarding which Aboriginal group she belonged to.

93    The Barber Report does not contain any other references in relation to Fanny Taylor other than in the genealogical information in Appendix 3 or in answer to the specific Questions asked regarding her.

94    The entry for Fanny Taylor in Appendix 3 states:

nm1: Fanny “Judy” Taylor

nm2: Mingenoogoo

nm3: Papertalk, Comeagain (Kummagin/Commigan/Commigain)

dob: circa 1883

cty: Amagu/Wilynu - coastal LP

cty2: Canamah

notes: married circa 1915; LP

notes2: photo by Ruth Fink, mid 50s. Fink ‘could’ introduce to people

95    Mr Barber opined as follows on the Questions regarding Fanny Taylor:

(i)    Question (i):

    Was Fanny Comagain a Wajarri person?

Answer:

Fanny “Judy” Comeagain nee Taylor is the daughter of Biddy Wittamurra a Thargarda Wadjari person who possessed rights and interest under traditional law and custom in the entirety of the Mullewa Wadjari claim area and broader Wadjari land.

(ii)    Question (j):

    Did Fanny Comeagain possess rights and interests under traditional law and custom in any Mullewa Wadjari Remaining Claim Area [meaning the Nanda Overlap Area] or Wajarri Yamatji area [meaning the WY Overlap Area], and if so, were those rights applicable to or exercisable in relation to all or any part or parts of the Mullewa Wadjari Remaining Claim area or Wajarri Yamatji Area?

Answer:

Fanny Comeagain was a Wadjari person and is regarded as having traditional rights and interests in all of the Mullewa Wadjari Claim area, the Mullewa Wadjari Remaining Claim area and the Wajarri Yamatji area.

8.3    The pleadings and evidence regarding Lottie Hannah

96    In relation to Lottie Hannah the MW SSFIC alleges as follows:

[8]    The MW Applicant says that, following their marriage, Jack Comeagain (Snr) adopted customarily (or grew up) Fanny Taylor’s children from prior to the marriage, namely her eldest daughter Milly, and her second eldest daughter Lottie.

[9]    The MW Applicant says that, by reason of her adoption by Jack Comeagain (Snr), Lottie Hannah became entitled to rights and interests in Jack Comeagain Snr’s country, which comprises Wadjari country, pursuant to the traditional laws and customs of the normative society to which the MW Claimants and Wadjarri People belong.

[10]    The MW Applicant says that under the system of laws and customs observed by the WY People and Mullewa Wadjari Claimants, the descendants of Lottie Hannah continue to hold the same rights and interests in Jack Comeagain Snr’s country.

97    The MW F&BP provides the following further particulars:

[4]    As to paragraphs [4] to [11] of the SSOFIC, the nature of the traditional laws and customs by which each of the following are alleged to have a had a ‘connection’ with the ‘WY Area’ (as defined in [3(a)] of the SSOFIC): -

…

D.     Lottie Hannah;

in accordance with traditional laws and customs which accord them rights and interests on the basis of descent from ancestors present in the WY area at and before the time of effective sovereignty being asserted by the British Crown in the area, including a custom of recognition of descent on the basis of adoption by a parent.

[5]    The following facts are related to the identification of the following -

…

D.    Lottie Hannah, the second daughter of Fanny (Judy) Taylor/Papetalk [sic]/Comeagain, was born c 1910, after the first daughter Milly Taylor, was born in 1909. Fanny (Judy) Taylor/Papetalk [sic]/Comeagain married Jack Comeagain (Snr) c 1915 and had five more children to him. Milly was recorded as Jack Comeagain’s eldest daughter on his 1947 Death Certificate. Jack Comeagain adopted or grew up both Milly and Lottie as his children.

98    Each of the three MW lay witness statements made reference to Lottie Hannah.

99    Dr Green said:

[51]    I remember being told by my mother that Lottie Hannah was related to the Papertalks.

[52]    Fanny had two (2) daughters with Old Papertalk – Millie Flanagan and Lottie Hannah.

[53]    Fanny then later married Jack Comeagain Senior and they had more children, including Jack Comeagain Junior. Jack Comeagain Junior was married my mother’s sister, Jean Papertalk.

[54]    As Jack Comeagain Senior was married Fanny, he was considered has having grown up (or adopted) both Millie and Lottie.

100    Mr Papertalk said:

[70]    The old people told me that Fanny’s daughter, Lottie, was adopted by Jack Comeagain Senior at some point and she moved in from another group into the Mullewa Wadjari area. I was told that Lottie’s father was Ned Papertalk.

101    Ms Jackamarra said:

[39]    Fanny and Lottie had a connection to the overlap area through Old Jack, Fanny’s husband. I grew up being told by members of my family that Lottie, and her older sister Millie, were Old Jack’s daughters.

[40]    I was told about 15 years ago by my late uncle (DC) that Lottie and Millie were the daughters of Ned Papertalk.

[41]    I concluded that Lottie was adopted by Old Jack, and considered Lottie to be his adopted daughter. This is what I grew up believing.

102    Mr Barber expressed the following opinions regarding Lottie Hannah.

103    In the passage at [156]-[160] (set out earlier at [83]), Mr Barber opined (at [159]):

Fanny ‘Judy’ Taylor also married an unnamed man and had two daughters Milly Taylor Flanagan and Lottie Hannah. Lottie Hannah had a number of children by unnamed father/s. The children of Lottie Hannah were adopted by Ned Papertalk and Jack Comagain (Snr) both Thagarda Wadjari. These children took the Hannah surname and are regarded as Thagarda Wadjari.

104    The Barber Report does not contain any other references in relation to Lottie Hannah other than in the genealogical information in Appendix 3 or in answer to the Questions asked regarding her.

105    The entry for Lottie Hannah in Appendix 3 said:

nm2: Lottie Hannah

dob: 1905-1910

cty: Thagarda Wadjari

notes: ‘grown up’, adopted by Jack Comeagain Senior

106    Mr Barber opined as follows on the Questions regarding Lottie Hannah:

(i)    Question (f):

Did Jack Comeagain Senior adopt Lottie Hannah and her older sister, Millie Flanagan?

Answer:

Jack Comeagain Senior is regarded as having adopted Lottie Hannah and Milly Taylor Flanagan.

(ii)    Question (g):

Does adoption/being ‘grown up’ by a Wajarri person or In Wajarri Society accord rights and interests in accordance with traditional laws and customs to a person adopted or ‘grown up’ and are any such rights transmissible to descendants of the person adopted or ‘grown up’? If not, what rights, if any, does an adopted Wajarri person have in Wajarri Society?

Answer:

Adoption of an infant by a Wadjari person is a means by which that infant becomes part of Wadjari society and thereby has rights and interests in the Wadjari estate.

(iii)    Question (k):

Who was Lottie Hannah’s biological father?

Answer:

Lottie Hannah’s biological Father is unknown.

(iv)    Question (l):

    Was Lottie Hannah a Wajarri person?

Answer:

Lottie Hannah was a Wadjari person. She was adopted under the laws and customs of the Wadjari by Jack Comeagain a Thargarda Wadjari person.

(v)    Question (m):

Did Lottie Hannah possess rights and interests under traditional law and custom in any Mullewa Wadjari Remaining Claim Area [meaning the Nanda Overlap Area] or Wajarri Yamatji area [meaning the WY Overlap Area], and if so, were those rights applicable to or exercisable in relation to all or any part or parts of the Mullewa Wadjari Remaining Claim Area or Wajarri Yamatji area?

Answer:

Lottie Hannah is regarded as a Wadjari person as she was adopted by Jack Comeagain Senior, for that reason she held full rights and interests in the Mullewa Wadjari Claim area and broader Wadjari land.

8.4    The MW applicant’s submissions

107    The MW applicant made the overarching submission that it is not the Court’s task in an application for summary judgment to conduct a “mini trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial”. Rather, it said the Court’s task “requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial”, citing Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [46] (Reeves J), as approved in Buurabalayji Thalanyji at [3] and Harkin at [12].

108    It argued that, properly understood, the witness statements of Dr Green, Mr Papertalk and Ms Jackamarra together with the Barber Report are evidence which supports findings in favour of the MW applicant in relation to the issues for the Separate Questions hearing, which issues can only be properly decided following a trial. On its argument, the N&WY applicants wrongly urged the Court to evaluate contested evidence.