Federal Court of Australia

Bates v Attorney General of New South Wales [2024] FCA 1439

ORDERS

THE COURT ORDERS THAT:

1.    Mr Clancy John McKellar and Mr Norman John Hodge are removed as the fourteenth and fifteenth respondents to the proceeding.

2.    There be no order as to costs.

THE COURT NOTES THAT:

3.    Given Order 1 above, there is no requirement for the applicants to comply with Order 4 of the orders made on 8 July 2022 as varied by Order 1 of the orders made on 1 February 2023 with respect to Mr Clancy John McKellar and Mr Norman John Hodge, notwithstanding the applicants’ longstanding historical non-compliance with Order 4 of those orders.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    By this proceeding, Ms Jennifer Bates and others (the applicant) seek a determination of native title on behalf of the Malyangapa Combined Proceedings Native Title Claim Group (the Malyangapa applicant).

2    As I shortly explain, the applicant initially filed two native title claimant applications on 4 June 2021. The Malyangapa Part A native title claim (NSD525/2021) (Malyangapa Part A claim) covered areas in far eastern South Australia and far western New South Wales which were not subject to any existing claim of native title. The Malyangapa Part B native title claim (NSD526/2021) (Malyangapa Part B claim) covered areas in New South Wales surrounding the towns of Tibooburra and Milparinka. On 8 July 2022, orders were made combining the Malyangapa Part A claim and the Malyangapa Part B claim (8 July 2022 orders) as the Malyangapa Combined Proceedings.

3    The first and second respondents are the Attorney General of NSW and the State of South Australia. Mr Clancy John McKellar and Mr Norman John Hodge are the fourteenth and fifteenth respondents to the Combined Proceedings.

4    Prior to the 8 July 2022, orders were made whereby Mr McKellar and Mr Hodge were joined as respondents to the Malyangapa Part B claim by reference to their membership of the applicant in a then overlapping claim, the Wongkumara People native title determination application (QUD851/2018) (Wongkumara claim). Following the agreed resolution of that overlap, Mr McKellar and Mr Hodge gave notice that they sought to remain as respondents to the Combined Proceedings by reason of their and the Wongkumara People’s alleged native title interests in the land previously subject to the Malyangapa Part A claim.

5    This is an interlocutory application by the Malyangapa applicant to remove Mr McKellar and Mr Hodge as respondents to the Combined Proceedings pursuant to s 84(8) and s 84(9) of the Native Title Act 1993 (Cth) (NT Act).

6    The interlocutory application also seeks to vacate the order made on 8 July 2022 requiring the Malyangapa applicant to provide their connection material to the respondents, to the extent that that order applies to Mr McKellar and Mr Hodge.

7    For the reasons below, Mr McKellar and Mr Hodge should be disjoined as respondents to the proceedings. It follows that there is no longer any requirement under the orders for the Malyangapa applicant to provide the connection material to Mr McKellar and Mr Hodge. Nonetheless, a notation should be made on the orders in order to make that clear, given the longstanding historical non-compliance with that order vis a vis Mr McKellar and Mr Hodge.

2.    BACKGROUND

2.1    The interests asserted by Mr McKellar and Mr Hodge

8    The interests asserted by Mr McKellar and Mr Hodge in the area subject to the original Malyangapa Part A claim on which they rely to remain as respondents to the Malyangapa combined claim, are set out at paragraph 2 of the notice dated 18 August 2022 (18 August 2022 notice). That notice provides:

The interests they hold that may be affected by a determination in the Combined Proceedings are that they and the Wongkumara People of which they are members, have Native Title rights and interests within part of the Malyangapa Part A native title determination area stretching east from the eastern boundary of the Wongkumara People Claim (QUD851 of 2018) claim area up to and including the western edge of the Bulloo River Overflow including amongst others sites in and near Pindera Downs, a designated Aboriginal place under New South Wales cultural heritage protection measures and in relation to which preservation evidence was given before Justice Tamberlin of the Federal Court on 1 April 2003 in proceedings QUD6026/1999, an earlier native title claim by the Wongkumara people.

(Emphasis added.)

9    The area described in the 18 August 2022 notice comprises sites in and near Pindera Downs, a property which lies east of the south eastern boundary of the Wongkumara determination area in McKellar on behalf of the Wongkumara People v Queensland [2024] FCA 699. In oral submissions, counsel for Mr McKellar and Mr Hodge explained that “the spread of the area that may be regarded as Pindera Downs goes vastly beyond, in my submission, that pinpoint [identifying where the homestead is located]. So when we speak of Pindera Downs, in my submission, your Honour ought not to regard that location as simply limited to the point on the map that identifies a homestead location”.

10    As to the evidence referred to in the 18 August 2022 notice, first, since 1986, an area within the boundary of Pindera Downs Station has been set aside as an Aboriginal Area, including on the basis of its significance to the Wongkumara People. In this regard, in his affidavit dated 13 September 2024, Mr Neumann, the solicitor for Mr McKellar and Mr Hodge, relies upon the NSW National Parks and Wildlife Service’s (NPWS) current Statement of Management Intent for the Pindera Downs Aboriginal Area which:

(1)    under the values for the area at [4], refers to the area’s importance as “part of the cultural landscape of the Wongkumara Aboriginal people including connections between people, land and spirit”; and

(2)    under Key Management directions at [6], records NPWS’ objective to manage the Pindera Downs Aboriginal Area “in cooperation with the Wongkumara Aboriginal community and Tibooburra Local Aboriginal Land Council” (emphasis added).

11    Secondly, as the notice states, preservation evidence was given in QUD6026/1999 in relation to the Pindera Downs Aboriginal Area on 1 April 2003 by two senior Wongkumara witnesses, Mr Malcolm Ebsworth and Mr Cecil Ebsworth (Mr C. Ebsworth). Not all of the areas in relation to which evidence was heard lay within the boundaries of the claim in QUD6026/1999 or the recent Wongkumara determination in McKellar.

12    In his witness statement tendered on 5 April 2003, Mr C. Ebsworth deposed (at [70]-[75]):

Initiation Site on Pindera Downs

70.     About 65 kms by road, to the east of Tibooburra, is a Wangkumara initiation site. My father first took me there when I was a young boy. The site is in clay pan that is completely fenced off to protect it from cattle and unauthorised visitors. The paddock in which it lies has been acquired by the NPWS from the owners of the surrounding Pindera Downs station.

71.     My father told me the site is a very old one; it was not used in his time. In the old days, all Wangkumara men were initiated. The custom stopped about my father’s time.

72.     Nothing grows on the site. The sweat out of the murris’ feet over thousands of years has stopped anything growing there. The sand has not built up on the site, as in my experience it would on any other clay pan, because the spirits keep the site clean.

73.     The site is important to Wangkumara. Some of the stone rings and curved tracks used during initiation can be still seen on the ground. … The old people used to say to us: ‘don’t you go there at night, them old fellas don’t want you to go there-that’s their sleep time’.

74.     Our ancestors used that place; I feel their presence whenever I visit there.

Women’s Site

75.     On Pindera Downs, not far from the initiation site is a women’s site. My father showed it to me when I was young. I can’t talk about that site, I only know that its there.

13    As such, Mr C. Ebsworth’s evidence speaks to the importance of the initiation site at Pindera Downs to the Wongkumara People and also to him personally.

14    I note that the earlier native title claim in QUD6026/1999 was ultimately dismissed due to default, pursuant to a self-executing guillotine order. The applicant in QUD6026/1999 subsequently sought via a Notice of Motion to amend their application, and to obtain either an extension of time or a waiver of the self-executing guillotine order. In Ebsworth on behalf of the Wangkumarra People #2 v Queensland [2006] FCA 1736, Tamberlin J refused the Notice of Motion on the basis of unresolved overlaps and the absence of proper authorisation for the amended applications.

2.2    Procedural history

15    The Malyangapa Part A and Part B native title determination applications were filed on 4 June 2021. As earlier intimated, at the time of filing, the southernmost part of the Malyangapa Part B claim was subject to an area of overlap with the Wongkumara People native title claim (QUD851/2018). On 21 July 2021, the Court made orders under s 67(1) of the NT Act specifying that both the Malyangapa Part B claim and the Wongkumara claim be dealt with in the same proceedings and determined at the same time.

16    On 28 June 2021, Mr McKellar and Mr Hodge sought to be joined to the Malyangapa Part B claim and did not seek joinder to the Malyangapa Part A claim. In the decision in Bates on behalf of the Malyangapa Part B Claim Group v Attorney General of New South Wales [2021] FCA 1198 at [1(a)], Murphy J explained that Mr McKellar and Mr Hodge sought to be joined as respondents to the Malyangapa Part B application pursuant to s 84(5) of the NT Act on the basis that “Mr McKellar and Mr Hodge are both members of the applicant in the Wongkumara native title determination application (QUD 851/2018)”.

17    Murphy J made orders by consent joining Mr McKellar and Mr Hodge to the Malyangapa Part B claim by consent on 5 October 2021, noting that “[i]t is plain that Mr McKellar and Mr Hodge claim to have native title rights and interests in relation to the overlapping claim area”: Bates at [2].

18    On 13 April 2022, the applicants in the Malyangapa Part B claim and the Wongkumara claim entered into mediation. By agreement, the applicants agreed to amend the boundaries of their claims to remove the overlap. Amended native title determination applications were filed giving effect to the outcome reached at mediation to resolve the overlap between the Malyangapa Part B claim and the Wongkumara claim . As the Malyangapa applicant contends, the effect of this was not only to resolve the overlap, but also “the original interest that underlay the joinder of Mr Hodge and Mr McKellar on behalf of the Wongkumara Applicant”.

19    On 8 July 2022, pursuant to s 64(2) of the NT Act, Jagot J ordered the combination of the Malyangapa Part A claim and the Malyangapa Part B claim as the Malyangapa Combined Proceedings. This enabled both Part A and Part B to be dealt with together, as is reflected in Order 2 of the 8 July 2022 orders regarding service of documents and the number of the proceedings as combined. Orders 3 and 4 of the 8 July 2022 orders also relevantly provide:

3.    On or before 31 August 2022, each respondent party to the Malyangapa Part B native title determination application NSD526/2021, other than the First and Second Respondents [i.e. the two State parties], is to file a notice:

(a)    identifying whether it seeks to remain as a respondent party to the Combined Proceeding and, if so, the person’s interests in relation to the land and waters, that may be affected by a determination in the Combined Proceedings;

(b)    whether it requires to be served with the connection material in the Combined Proceedings.

4.    On or before 28 February 2023, the Applicant is to provide the First Respondent, Second Respondent and any other respondent party who files a notice in accordance with Order 3(b), on a confidential and without prejudice basis, any expert linguistic, anthropological, genealogical or historical reports and a list of evidence filed in proceeding QUD851/2018 (or that evidence for any respondent who has not been served with that evidence in proceeding QUD851/2018) upon which it intends to rely for the purpose of the proceeding.

20    It is convenient to describe the evidence referred to in Order 4 as the connection material.

21    On 1 February 2023, I varied the date of Order 4 to 31 October 2023.

22    On 18 August 2022, Mr McKellar and Mr Hodge, in accordance with Order 3(a) of the 8 July 2022 orders, filed a notice stating that they sought to remain respondents to the Combined Proceedings on the basis that they, and the Wongkumara People of which they are members, have native title rights and interests within part of the Malyangapa Part A claim area. The terms of the notice are relevantly quoted above at [8]. In accordance with Order 3(b) of the 8 July 2022 orders, the notice also stated that Mr McKellar and Mr Hodge require to be served with the connection material in the Combined Proceedings.

23    On 7 March 2023, Registrar Grant ordered that both proceedings be conducted as one application and that Mr McKellar and Mr Hodge be joined as respondents to the Combined Proceedings pursuant to s 84(5) of the NT Act.

24    On 10 November 2023, following a case management hearing, the Court circulated a table of draft outcomes, including that “[t]he Applicant is to provide its connection material to any respondent parties who have filed a notice of request in accordance with Order 3(b) of orders made by Jagot J on 8 July 2022”. In that email, the Court requested any comments or amendments to the draft outcomes within two business days.

25    On 21 November 2023, the applicant’s legal representative wrote to the legal representative for Mr McKellar and Mr Hodge, requesting their consent to not provide Mr McKellar and Mr Hodge with the connection material pursuant to the 8 July 2022 orders and explaining why they held that view. This was three weeks after Order 4 was required to have been complied with. On 15 December 2023, the legal representative for Mr McKellar and Mr Hodge indicated that his clients would not consent to the request.

26    On 7 December 2023, the Court settled the table of draft outcomes circulated on 10 November 2023. The Court advised that, “as no comments were received, these outcomes are now settled”.

27    On 7 December 2023 and as stated in the report provided to the Court, the Malyangapa applicant served the reports prepared by Dr Kwok and Ms Fiebig on the State respondent parties in accordance with the 8 July 2022 orders. To date, however, the connection material has not been provided to Mr McKellar and Mr Hodge as required by the 8 July 2022 orders.

28    On 3 July 2024, the native title rights and interests of the Wongkumara People in the Wongkumara claim were recognised by consent in the determination made by Murphy J in McKellar.

3.    RELEVANT LEGAL PRINCIPLES

29    Section 84 applies to applications made under s 61 of the NT Act, including, relevantly, native title determination applications. The interlocutory application seeks to remove Mr McKellar and Mr Hodge as parties to these proceedings pursuant to s 84(8) and s 84(9) of the NT Act. However, as disjoinder is the obverse of joinder, it is helpful to include the provisions for joinder of respondents, as well as those for disjoinder.

30    Section 84 relevantly provides that:

Applicant

(2)    The applicant is a party to the proceedings.

Affected persons

(3)    Another person is a party to the proceedings if:

(a)    any of the following applies:

(i)    the person is covered by any of subparagraphs 66(3)(a)(i) to (vi);

(ii)    the person claims to hold native title in relation to land or waters in the area covered by the application;

(iii)    the person’s interest, in relation to land or waters, may be affected by a determination in the proceedings; and

(b)    the person notifies the Federal Court, in writing, that the person wants to be a party to the proceeding:

(i)    within the period specified in the notice under section 66; or

(ii)    if notice of an amended application is given under paragraph 66A(1)(f) or (1A)(e)—within the period specified in the notice under that paragraph.

…

Joining parties

(5)    The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person’s interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

…

Dismissing parties

(8)     The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings.

Court to consider dismissing parties

(9)     The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that:

(a)     the following apply:

(i)     the person’s interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and

(ii)     the person’s interests are properly represented in the proceedings by another party; or

(b)     the person never had, or no longer has, interests that may be affected by a determination in the proceedings.

31    The question of whether a person will be removed as a respondent turns on “an assessment of the interests of justice in the particular case”: Lewis on behalf of the Warrabinga-Wiradjuri People #7 v Attorney General (NSW) (No 2) [2021] FCA 1269 at [10] (Griffiths J).

32    In Miller v South Australia (Far West Coast Sea Claim) (No 2) [2018] FCA 599, White J undertook an extensive consideration of the authorities on the question on the question of disjoinder in the context of s 84(8) of the NT Act. Reeves J in Alvoen on behalf of the Wakaman People #3 v Queensland [2019] FCA 1469 agreed with White J’s explanation of the relevant principles in Miller which he helpfully summarised as follows:

(a)    the discretion vested under s 84(8) is mirrored in that vested under s 84(5) (see at [104]);

(b)     the “‘interests’ to which s 84(5) refers are not confined by the definition of the word ‘interest’ in s 253 of the [NTA]” (see at [105]);

(c)     the particular circumstances specified in s 84(9) are not exhaustive of the circumstances in which a person may be removed as a party under s 84(8) (see at [106]);

(d)     a person joined as a respondent party under s 84(3), or s 84(5), cannot seek a determination of native title in favour of a group of persons without making an application under ss 13 and 61 of the NTA (see at [107]);

(e)     however, a person can be joined and remain a respondent party “for the quite separate and different purposes of seeking to protect the native title rights and interests they claim to hold from erosion, dilution or discount” (see at [108]);

(f)     a prospective or existing respondent who can point to a “clear and legitimate objective which he or she hopes to achieve” as a respondent party will usually be successful in a joinder application unless there are other factors weighing against the exercise of that discretion (see at [109]);

(g)     dissatisfaction of a claim group member with the institution of proceedings or the manner of their conduct does not, of itself, warrant that person being joined, or remaining, a respondent party (see at [120]);

(h)     however, if such a person contends that their native title rights and interests exist by reason of their membership of a different and competing claim group, they may be permitted to remain a respondent party (see at [121]-[123]);

(i)     further, such a person may also be permitted to remain as a respondent party where they are disputing the composition of the claim group, rather than pursing an intra-mural dispute (see at [124]-[129]); and

(j)     a person who is a member of a sub-group of the native title claim group will not usually be joined as a respondent party (see at [130]).

(Emphasis added.)

(See also Dimer on behalf of the Marlinyu Ghoorlie Claim Group v Western Australia [2023] FCA 930 at [43] (O’Bryan J); Lewis at [9] and [10] (Griffiths J); and Hippi on behalf of the Gamilaraay People v Queensland [2024] FCA 380 at [57]-[58] (Collier J)).

33    Added to this, it is well established that the applicant to a joinder application has the onus of satisfying the Court that they have interests which may be affected by a determination for the purposes of s 84(5): Forrest on behalf of the Kakarra Part A Native Title Claim Group v Western Australia [2023] FCA 529 at [14] (Bromberg J); see also Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v Queensland (No 4) [2024] FCA 641 at [23] (Collier ACJ). Equally here in response to the application for disjoinder, the onus lies on Mr McKellar and Mr Hodge to satisfy the Court that their interests may be affected by a determination in the proceedings in circumstances where their original interest no longer exists.

34    In Lander v South Australia [2016] FCA 307, White J held that it was not appropriate that certain members of the claimant group on a native title determination application, the Warrens, remain as respondents. In so holding, at [73]-[74] of his reasons, White J held that the respondents’ purpose was important for the following reasons:

Persons seeking to be joined, or to remain as, a respondent to native title proceedings on the basis that they have native title rights and interests in the subject land which may be affected by a determination in the proceedings, are permitted to pursue only a personal claim in those rights and interests, that is, to protect them from erosion, dilution or discount: Munn v State of Queensland [2002] FCA 486 at [8]; Davis-Hurst (On behalf of the Traditional Owners of Saltwater) v Minister for Land and Water Conservation (NSW) [2003] FCA 541, (2003) 198 ALR 315 at [27]; Kokatha Native Title Claim v South Australia [2005] FCA 836, (2005) 143 FCR 544 at [24]; Worimi Local Aboriginal Land Council v Minister for Lands (NSW) [2007] FCA 1357, (2007) 164 FCR 181 at [16]-[17]; Isaacs on behalf of the Turrbal People v State of Queensland (No 2) [2011] FCA 942 at [18]-[19]; and Bonner on behalf of the Jagera People #2 v State of Queensland [2011] FCA 321 at [18]. If the persons seek instead, or also, to obtain a positive determination of native title, they must do so in the manner contemplated by the NT Act. This has the consequence that persons cannot be joined, or permitted to remain, as a respondent party if their purpose is to act as a representative to assert native title rights on behalf of other people: Isaacs at [19]; Munn at [9]; Moses v State of Western Australia [2007] FCAFC 78, (2007) 160 FCR 148 at [18]; Commonwealth of Australia v Clifton [2007] FCAFC 190, (2007) 164 FCR 355 at [48], [52]-[53], [57]-[58] and [61]; and Bonner at [19].

As I have said, the quoted paragraphs from Ms Warren’s affidavit … suggest that her purpose in seeking to remain a respondent may not be to preserve a personal interest, but instead to pursue claim on behalf of the group she describes as Dieri Mitha. This impression is supported by the statement of interest set out by the Warrens in the notices filed on 1 September 2014.

35    Similarly, Reeves J explained in Isaacs on behalf of the Turrbal People v Queensland (No 2) [2011] FCA 942 at [19] that:

if that person wishes to obtain a positive determination of native title on behalf of his or her people, clan or group, then the Act prescribes that the only method by which that can be achieved is an application under s 13(1), complying with the requirements of s 61 et seq of the Act. Among other things, this means that a person cannot be joined a s a respondent party if his or her purpose in being so joined is to act as a representative to assert native title rights on behalf of other people …

36    However, “a person claiming a competing native title interest which may be affected by the making of a determination in the application has an interest which justifies that person becoming or remaining a respondent”: TR (Deceased) on behalf of the Kariyarra-Pipingarra People v Western Australia [2016] FCA 1158 at [38] (North ACJ). As such, a respondent may seek to avoid the making of a determination by the Court that discounts a separate traditional connection which the respondent believes to exist: Davis-Hurst on behalf of the Traditional Owners of Saltwater v Minister for Land and Water Conservation (NSW) [2003] FCA 541; (2003) 198 ALR 315 at [27] (Branson J).

37    As such, a person may be joined to protect native title rights and interests from erosion, dilution or discount even if there is no application by a group over the claim area. As Mansfield J observed in Kokatha Native Title Claim v South Australia [2005] FCA 836; (2005) 143 FCR 544 (at [24]):

Where there may be a competing native title group who claim communal rights and interests which may be affected by a determination in the Kokatha claim, but there is no application by that group over the claim area, the members of that group should not be precluded from putting forward their claim in a defensive attempt to avoid the dilution of those interests.

38    This is consistent with the purpose of joinder. As Gray J explained in Britten v Western Australia (No 2) [2002] FCA 163 at [8], with particular reference to joinder in relation to overlapping areas:

The purpose of the [joinder] is to ensure that all parties with possible interests in the overlapping area are before the Court in a single proceeding in which the question of a determination of native title in relation to the overlapping area can be determined. The addition of those who are claimed to be native title holders of the overlapping area in the Jiddngarri application as parties to the Purnululu application cannot and will not pre-empt the determination of any issue. In particular, it will not amount to the expression of any opinion as to who are the native title holders, if any, in respect of the overlapping area. It will enable a proper determination to be made, because all competing interests will be represented in the one proceeding in relation to the overlapping area.

39    Finally, the kind of “interests” that must be shown to weigh against the removal of respondents are “genuine, demonstrable and direct interests”: Gomeroi People v Attorney General (NSW) [2013] FCA 81 at [20] (Jagot J); Peter Hillig as administrator of Worimi Local Aboriginal Land Council v Minister for Lands [2006] FCA 61 at [27] (Bennett J). The interests cannot be “indirect, remote or lacking substance”; they “must be capable of clear definition” and must be of such a character that they “may be affected in a demonstrable way by a determination in relation to the application”: Byron Environment Centre Inc v Arakwal People [1997] FCA 797; (1997) 78 FCR 1 at 7 (Black CJ).

4.    THE DISJOINDER APPLICATION

40    I do not understand that it was in issue that, at least on a prima facie basis, the native title rights and interests which Mr McKellar and Mr Hodge claim to hold in the Malyangapa Part A area as members of the Wongkumara People, as stated in their notice, could be affected within the meaning of s 84(5) of the NT Act by the determination of the Malyangapa applicants’ determination application. This is because, in effect, Mr McKellar and Mr Hodge are claiming that there is an overlap between native title rights and interests held by the Wongkumara People and those asserted by the Malyangapa applicants in the Malyangapa Part A area.

41    Rather, in applying to remove Mr McKellar and Mr Hodge as parties, the Malyangapa applicant’s primary submissions are that:

(1)    Mr McKellar and Mr Hodge are impermissibly acting in a representative capacity to pursue a native title claim on behalf of the Wongkumara People; and/or

(2)    Mr McKellar and Mr Hodge have acted in a way that amounts to an abuse of process.

42    Neither Mr McKellar nor Mr Hodge gave any evidence. However, they submitted that they were not using the Combined Proceedings as a vehicle to pursue a native title claim in a representative capacity. Instead, they submitted that they are acting as individuals who are acknowledged elders of the Wongkumara People and feel a personal ongoing obligation to comply with the native title right of the Wongkumara People, recognised in the consent determination in McKellar, “to maintain places of importance and areas of significance to the Wongkumara people under their traditional laws and customs … and to protect those places and areas from harm”. As such, they submitted that they seek to remain as respondents to protect their personal interest in the Malyangapa Part A claim area: see, eg, Davis-Hurst at [27] (Branson J). In particular, counsel for Mr McKellar and Mr Hodge submitted that they want to remain as respondents and be provided with the connection material as it will assist them in forming a view about the extent to which the Malyangapa claim affects their interests and what their response to claim should be, including whether they should file an overlapping claim or participate in the mediation following the exchange of connection material.

43    In line with the authorities to which I have referred, it was not in issue that persons seeking to be joined, or to remain as, a respondent to native title proceedings on the basis that they have native title rights and interests in the subject land which may be affected by a determination in the proceedings, are permitted to pursue only a personal claim in those rights and interests, that is, to protect their personal rights and interests from erosion, dilution or discount. Conversely, a person cannot be joined, or remain, as a respondent party if their purpose in being so joined is to act as a representative to assert native title rights on behalf of other people: see e.g. Lander at [73] (White J). In my view, properly understood, the interest which Mr McKellar and Mr Hodge seek to assert in the present proceedings as respondents is of the latter kind for the following reasons. Alternatively, Mr McKellar and Mr Hodge have failed to establish a basis in the evidence for their case that they seeking to protect only personal rights and interests from erosion, dilution or discount by remaining as respondents.

44    First, Mr McKellar and Mr Hodge were originally joined by consent to the Part B Malyangapa claim prior to those proceedings being combined with the Part A Malyangapa claim on the basis that they were members (albeit not the only members) of the Wongkumara applicant in an overlapping native title claim. That interest, however, ceased to exist when, following mediation, the boundaries for the Malyangapa and Wongkumara claims were amended and there was, as a result, no continued overlap.

45    Secondly, the interests which Mr McKellar and Mr Hodge identified in the 18 August 2022 notice are that “they and the Wongkumara People of which they are members, have Native Title rights and interests within part of the Malyangapa Part A native title determination area…”. As such, while not entirely clear, the terms of the notice suggest that the interests which Mr McKellar and Mr Hodge allege are not merely their own interests as members of the Wongkumara People, but the interests of the Wongkumara People of whom they are members and are therefore to this extent representative interests.

46    Thirdly, as earlier mentioned, no evidence was given by Mr McKellar or Mr Hodge as to the nature of their alleged interests or their purpose in seeking to remain as respondents to the Combined Proceedings. Nor does the evidence of their solicitor, Mr Neumann, depose to any personal interest alleged by Mr McKellar and Mr Hodge subject to one caveat as I shortly explain. Mr Neumann refers only to the interests in, and in connection with, areas in the old Malyangapa Part A claim area of the Wongkumara people and of Mr C. Ebsworth, suggesting that the interest asserted by Mr McKellar and Mr Hodge is properly characterised as representative. In this regard, the fact that there is no evidence that Mr McKellar and Mr Hodge have been authorised to act on behalf of the Wongkumara People in this litigation does not exclude the possibility they are seeking to remain a party in order to represent those interests even though they do not have the capacity to do so under the NT Act.

47    The caveat to which I referred above is that Mr Neumann gives evidence that “I am instructed that the evidence given by Mr Cecil Ebsworth accurately describes the significance to the Wongkumara Respondents of the Aboriginal Area on Pindera Downs”. That evidence is unsatisfactory and cannot be given any weight. It fails to identify which part of Mr C. Ebsworth’s evidence is being referred to save that it appears to relate to Mr C. Ebsworth’s evidence about the initiation site on Pindera Downs and the women’s side nearby which I have earlier quoted. Yet that evidence primarily describes Mr Ebsworth’s personal experiences, including what his father told him and showed him, and how he personally feels the presence of his ancestors when he visits an important site. As such, it makes no sense to speak of Mr McKellar and Mr Hodge adopting Mr Ebsworth’s evidence as their own and does not fill the lacuna created by their failure to give evidence about their own interests.

48    Fourthly, the inference that ultimately Mr McKellar and Mr Hodge are seeking to remain as respondents in a representative capacity is strengthened by the fact that Mr McKellar was the lead applicant in McKellar and Mr Hodge was also a member of the applicant: see by analogy Hippi at [76]. This inference is further confirmed by the submissions for Mr McKellar and Mr Hodge to the effect that they wanted access to the connection material prepared for the Combined Proceedings in order to assess what options they might pursue in the litigation, including whether to bring a native title determination application (which would, of its nature, be made on behalf of the Wongkumara People) or to attempt to negotiate or mediate with the Malyangapa People.

49    Finally, while there was no evidence to as to their status as elders and what that meant in terms of their responsibilities, I am prepared to infer for the purposes of this application that they are elders given that they were members of the applicant in the Wongkumara claim, as counsel for Mr McKellar and Mr Hodge submitted. However, that status does not ultimately assist them in characterising the capacity in which they seek to remain respondents as it could support either view.

50    It follows in my view, that the decision in Davis-Hurst, on which Mr McKellar and Mr Hodge rely, is distinguishable. In that decision at [27], Branson J held that:

Mr Kemp's interest, as a descendent of the Pirripaayi people, in seeking to avoid the making of a determination by the Court that discounts the traditional connection which he believes to exist between the Pirripaayi people and Saltwater is, in my view, an interest of a different character. It is an interest that is “not indirect, remote or lacking in substance”. It is an interest in any determination that might be made under s 225(a) of “who the persons, or each groups of persons, holding the common or group rights comprising the native title are”. An interest of this kind is capable of “clear definition” and it is capable of being “affected in a demonstrable way by a determination in relation to [each] application”.

(Emphasis added.)

51    This is not, for the reasons I have given, a case where the interest which Mr McKellar and Mr Hodge allege is protective only of their personal interests deriving from their membership of the Wongkumara People. Alternatively, this is not a case where Mr McKellar and Mr Hodge have been able to discharge their onus of establishing the existence of a personal interest.

52    In those circumstances, it is unnecessary for me to consider the alternative ground of abuse of process on which disjoinder was sought. However, I would indicate that in my view, the evidence fell well short of establishing an abuse of process. For example, the Malyangapa applicant placed significant weight on the fact that no mention was made by the Wongkumara applicant of any claims in the Part A area during the mediation processes in relation to the overlap in the Part B area. However, as counsel for Mr McKellar and Mr Hodge submitted, it was equally open to the Court to infer that the reason why the issue had not been raised was because the focus was (understandably) upon the immediate issue of resolving the overlap, given the pending commencement of the trial in McKellar at that time.

5.    THE APPLICANT’S FAILURE TO COMPLY WITH THE 8 JULY 2022 ORDERS

53    It follows from my conclusion that Mr McKellar and Mr Hodge should be disjoined that there is no longer a basis on which they can seek to enforce the orders of 8 July 2022 requiring provision by the Malyangapa applicant of the connection material. Nonetheless, something should be said of the non-compliance with the order to this time by the Malyangapa applicant.

54    At no time has the Malyangapa applicant provided Mr McKellar and Mr Hodge with the connection material as required by Order 4 of the 8 July 2022 orders. While the Malyangapa applicant set out its reasons for not complying with Order 4 in its letter to Mr McKellar and Mr Hodge’s solicitors on 21 November 2023 requesting Mr McKellar’s and Mr Hodge’s consent not to provide that material, that letter was not sent until after the Malyangapa applicant was already three weeks in default of Order 4 (as varied by Order 1 of the orders made on 1 February 2023). Nor did the Malyangapa applicant raise any concerns about providing the connection material to Mr McKellar and Mr Hodge with the Court following circulation of the draft outcomes on 10 November 2023, which included the outcome for the applicant to provide its connection material to any respondent parties who filed a notice of request. Furthermore, requests were made on 15 December 2023 and 24 January 2024 by the lawyers for Mr McKellar and Mr Hodge for the Malyangappa applicant to provide the connection material in compliance with Order 4. Nor was any application made to vary the 8 July 2022 orders to exclude Mr McKellar and Mr Hodge, or otherwise to remove them as respondents, before the Malyangapa applicant lodged this interlocutory application on 15 August 2024.

55    The Malyangapa applicant acknowledged its tardiness in bringing this interlocutory application, and explained that other matters over the past year diverted the attention of the applicant and their legal representative. They submitted that Mr McKellar and Mr Hodge did not press the applicant for the connection material until the issue was raised at case management on 1 August 2024.

56    However, with respect, that explanation is not sufficient. The Court orders should have been complied with or the present interlocutory application made in a timely manner before the time for complying with Order 4 expired with an application for the order to be stayed pending the determination of the interlocutory application. The fact that the Malyangapa applicant’s interlocutory application has ultimately been upheld should not, therefore, be regarded in any way as endorsing the failure by the Malyangapa applicant to take either of these courses at an earlier point in time.

6.    COSTS

57    The Malyangapa applicant submitted that it was reasonable for it to obtain its costs in accordance with s 85A(2) of the NT Act. Section 85A provides that:

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

Unreasonable conduct

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

58    However, as I have rejected the Malyangapa applicant’s contention that Mr McKellar and Mr Hodge’s conduct amounted to an abuse of process, there is no basis on which it can be said that they acted unreasonably so as to cause the Malyangapa applicant to incur costs. As such, the appropriate order is that each party bear their own costs.

7.    CONCLUSION

59    For the reasons set out above, orders should be made removing Mr McKellar and Mr Hodge as respondents with no orders as to costs.

Associate:

Dated:    13 December 2024

SCHEDULE OF PARTIES