Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC [2025] FCA 1175

Federal Court of Australia

File number:	WAD 342 of 2024

Judgment of:	JACKSON J

Date of judgment:	19 September 2025

Date of publication of reasons:	23 September 2025

Catchwords:	PRACTICE AND PROCEDURE - application for order for delivery of particulars prior respondent filing defence - particulars sought not necessary or desirable to enable respondent to plead pursuant to r 16.45(3) of the Federal Court Rules 2011 (Cth) - application dismissed

Legislation:	Federal Court Rules 2011 (Cth) r 16.45

Cases cited:	Banjima People v State of Western Australia (No 2) [2013] FCA 868 Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496

Division:	General Division

Registry:	Western Australia

National Practice Area:	Native Title

Number of paragraphs:	14

Date of hearing:	Determined on the papers

Counsel for the Applicants:	Mr K Banks-Smith

Solicitor for the Applicants:	Banks-Smith & Associates

Counsel for the Respondent:	Ms R Webb KC with Mr M Pudovskis

Solicitor for the Respondent:	Meridian Lawyers

ORDERS

		WAD 342 of 2024

BETWEEN:	STEVEN DHU First Applicant BRENDAN DHU Second Applicant
AND:	KARLKA NYIYAPARLI ABORIGINAL CORPORATION RNTBC ICN 3649I Respondent

order made by:	JACKSON J
DATE OF ORDER:	19 september 2025

THE COURT ORDERS THAT:

1. The time for compliance with paragraph 4 of the orders made on 1 July 2025 (by which the respondent must file and serve a defence) is extended to 3 October 2025.

2. The respondent's interlocutory application filed on 25 August 2025 is otherwise dismissed.

3. The time for compliance with paragraph 6 of the orders made on 1 July 2025 (by which the applicants must file and serve any reply) is extended 10 October 2025.

4. The case management hearing listed for 1 October 2025 is adjourned to 9.30 am AWST on 15 October 2025.

5. Liberty to apply.

6. The respondent must pay the applicants' costs of and incidental to the respondent's interlocutory application.

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

REASONS FOR JUDGMENT

JACKSON J:

1 By an interlocutory application filed on 25 August 2025, the respondent sought the delivery of particulars of the statement of claim in this proceeding, before the filing of a defence.

2 The applicants resisted this. In doing so they insisted on compliance with r 16.45(3) of the Federal Court Rules 2011 (Cth), which provides that a respondent who applies for particulars of a statement of claim before filing their defence must satisfy the Court that an order is necessary or desirable to enable them to plead.

3 The interlocutory application has been dealt with on the papers. On 19 September 2025 I made the orders that appear at the commencement of this judgment administratively in Chambers. In substance I dismissed the respondent's application for particulars. These are my reasons for doing so. The issues raised do not engage any question of principle and the manner in which they are resolved is unlikely to interest anyone other than the parties. It is appropriate to give reasons in short form.

4 I do so largely by adding rulings to a table of the particulars sought, and the parties' submissions about them, which they were ordered to produce. The table as amended by me appears as the Schedule to these reasons. The first column in the table sets out both the relevant paragraph of the applicants' substituted statement of claim filed 2 July 2025 (SoC) and, in italics, the particulars the respondent seeks. The submissions in the second and third columns are as worded by the parties (lightly edited to ensure consistent use of defined terms). The table is otherwise self-explanatory.

5 The parties were agreed as to the principles that apply in these cases, as set out at paragraphs 1 to 8 of the respondent's written submissions. I accept those principles without setting them out here; they are well-established and well-known. I would only emphasise that I have found it appropriate to hold the respondent to compliance with r 16.45(3) as described above. Experience shows that disputes over particulars can exacerbate delay if, without good reason, they hold up the filing of a defence. For the reasons given in the Schedule, in several instances I did not consider that the respondent had discharged its onus of demonstrating that particulars before the filing of a defence were necessary or desirable here.

6 The respondent made two further submissions as to the application of r 16.45(3) to the request for particulars. First, it said that at the case management hearing on 3 September 2025, the applicants told the Court that they were unwilling to provide particulars at any stage of the proceedings, not just before the filing of a defence. The respondent submitted that this should weigh in favour of making an order for the delivery of particulars before the filing of a defence.

7 However, a review of the transcript of the case management hearing confirmed my recollection that the applicants did not make that statement as alleged. Rather, they reserved their position on whether they would oppose the delivery of the requested particulars after a defence was filed, and indicated that further conferral with senior counsel (who was not present at the case management hearing) would be needed. I therefore gave no weight to this submission.

8 The respondent also submitted that in the absence of particulars as to paragraphs 13, 15, 16, and 17 of the SoC, they would have to plead that they do not know and therefore cannot admit to those paragraphs. But if that does prove to be necessary, it will be unremarkable, considering that those paragraphs (which are all set out in the Schedule) make assertions as to the conduct of the applicants that are likely to be in their knowledge, and may well not be in the knowledge of the respondent. Therefore I did not consider that the respondent has established that it is necessary or desirable to have particulars as to those paragraphs to enable it to file a defence.

9 It is only necessary to provide additional explanation for one other ruling in the Schedule, namely that which concerns paragraph 10 of the SoC, concerning the term 'Pilbara Aboriginal People'. The applicants refer to paragraphs 9.6 to 9.9 of their written submissions. There, they rely on references to the Pilbara in the decision of Mortimer J (as she then was) in Dhu v Karlka Nyiyaparli Aboriginal Corporation RNTBC (No 2) [2021] FCA 1496 (Dhu v Karlka 2021).

10 That decision was the end of an earlier chapter of this dispute between the applicants and the respondent. In Dhu v Karlka 2021, Mortimer J referred to the applicants as 'Pilbara men'. Her Honour also quoted from evidence of one of the applicants which used the term 'Pilbara common law holder', and the evidence of another (Nyiyaparli) witness referring to people 'from the Pilbara'. Justice Mortimer also referred to 'the wider Pilbara community', and to different 'Pilbara group[s]'. She also referred to the concept of a 'jural public', a term used by expert witnesses in the proceeding that led to Banjima People v State of Western Australia (No 2) [2013] FCA 868 apparently to denote 'Aboriginal people "who were generally in the area, not necessarily Banjima but able to speak with some authority"', which included 'Yindjibarni, Nyiyabarli and Palyku people': Banjima (No 2) at [249], [590].

11 In making my ruling on the particulars sought of paragraph 10 of the SoC, I accepted the applicants' submissions to this extent: they established that the previous proceeding that culminated in Dhu v Karlka 2021 provides context common to the parties to this proceeding within which the allegations made in the SoC should fairly be read. It seems to me unlikely that the respondent has any real difficulty in understanding the term 'Pilbara Aboriginal People', despite how imprecise it might appear at first blush. That, together with the specific groups referred to in paragraph 11 of the SoC (see the next row in the Schedule), mean I am not persuaded that any further elucidation of the concept is necessary so that the respondent can plead to paragraphs 10 and 11.

12 As to the orders made consequent on the dismissal of the application, at a case management hearing on 3 September 2025 the applicants made it clear they wanted to maintain the date of 1 October 2025 that had been set down for a case management hearing, at which it was proposed to program the matter to trial. But I did not consider that would be practicable.

13 The respondent has had the SoC for nearly three months now and has put on evidence suggesting that it was going to provide instructions about it to its legal representatives in August 2025. Nevertheless, the allegations in the SoC cover a wide factual area, and it seemed unlikely that the respondent would be able to plead effectively to it in less than two weeks from the dismissal of its application (that being the time originally proposed in the interlocutory application for a defence after delivery of particulars). Even if a shorter time had been allowed, it would still have been necessary to provide time for the filing of a reply before pleadings were closed and the matter could then be programmed. I have therefore postponed the case management hearing to 15 October 2025 to permit sufficient time for pleadings to close.

14 Hence the orders at the beginning of these reasons were made. But if they prejudice any party, express liberty to apply has been given.

I certify that the preceding fourteen (14) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Jackson.

Associate:

Dated: 23 September 2025

SCHEDULE

Paragraph of SoC and particulars sought

Respondent's submissions

Applicants' submissions

Ruling

10. The Traditional Laws and Customs are acknowledged and observed by Pilbara Aboriginal People, even if there is some slight variation between different groups of Pilbara Aboriginal People.

Particulars of the term 'Pilbara Aboriginal People', including the meaning of this term.

The applicants' central allegation is that contained in paragraph 20 of the SoC.

This allegation is said to be grounded in the matters pleaded at paragraphs 1 to 6 and 10 to 19. Hence, paragraph 10 is material to the applicants' central allegation. The relevance of the term 'Pilbara Aboriginal People' to the applicants' case is further demonstrated by its use in sub-paragraphs 12(g), 12(h)(vii), 17(c), 17(e), and 64(c)(iii) of the SoC.

For the above reasons, the respondent is entitled to know what, precisely, the term 'Pilbara Aboriginal People' means. Yet, the meaning is not self-evident, nor is it explained by any, or any adequate, statements of material facts or particulars.

Without knowing the precise meaning of this term, the respondent will not be able to conduct its case within r 16.45(2)(b) in that it will not be able to properly assess the relevance of the applicants' evidence, nor will it be able to properly prepare by identifying, at an early stage, relevant witnesses and taking evidence from those witnesses about the matters the subject of the paragraph.

The applicants accept that this is a material part of their case.

They dispute that particulars are required as contended having regard to paragraphs 9.6 to 9.9 of the applicants' submissions and paragraph 11 of the SoC.

The respondent has not established the need for the particulars sought.

In the context of:

(a) the extensive previous litigation between the parties;

(b) paragraph 11 of the SoC, which lists specific peoples that are Pilbara Aboriginal People, including the Banjima People and the Nyiyaparli People; and

the respondent requires no further elucidation of the meaning of the term 'Pilbara Aboriginal People' in order to be able to plead to the paragraph.

11. The Pilbara Aboriginal People include groups of people that have been recognised to possess native title rights and interests in various parts of the Pilbara including Banjima People, Palyku People, Nyiyaparli People and Nyamal People.

(a) Particulars of the term 'Pilbara Aboriginal People', including the meaning of this term.

(b) The names of any groups that are said to comprise these people apart from those listed in paragraph 11.

The submission in respect of paragraph 10 of the SoC above and paragraph (a) of the requested particulars is repeated mutatis mutandis. If these particulars are provided, it should not be necessary for the applicants to provide particulars of the matters in paragraph (b) (the names of any groups that are said to comprise these people apart from those listed in paragraph 11).

As to (a), the applicants rely on their answer at paragraph 10 above.

As to (b), the following groups are identified in addition to those already named: Yindjibarndi, Kariyarra, PKKP, eastern Kuruma , Robe River Kuruma, Ngarla, and Yinhawangka.

The ruling immediately above disposes of the issue as to (a) and the applicants appear to have provided the further particulars sought at (b).

13. In the late 1990s the Applicants followed Ijiyangu through their father and their maali Ned as the basis for their possession of rights over her country under the Traditional Laws and Customs.

All matters pleaded in paragraph 13.

The respondent no longer [seeks] particulars in these terms. Rather, it seeks particulars of the manner in which the applicants 'followed' Ijiyangu through their father and their maali Ned in the late 1990s.

Paragraph 13 is material to the applicants' central allegation in paragraph 20 of the SoC. Thus, the respondent is entitled to understand the precise nature of the material facts pleaded.

The difficulty is that the pleading that the applicants 'followed' Ijiyangu is a conclusion, not a primary material fact. No material facts, let alone particulars, are pleaded which are capable of sustaining this conclusion.

Without the particulars sought, the respondent will not be able to conduct its case within r 16.45(2)(b) in that it will not be able to properly assess the relevance of the applicants' evidence, nor will it be able to properly prepare by identifying, at an early stage, relevant witnesses and taking evidence from those witnesses about the matters the subject of the paragraph.

The applicants dispute that the requested particulars are necessary, particularly having regard to Dhu v Karlka 2021 and the evidence available to the respondent as identified in the applicants' submissions.

The matters raised by the respondents as the basis for the submission that the particulars sought are necessary concern preparation for trial. They do not satisfy the Court that an order for particulars is necessary or desirable to enable the respondent to plead, as required by r 16.45(3).

15. The Applicants have been taught, and understand, where Ijiyangu's Country is.

The contention that '[t]he Applicants have been taught … where Ijiyangu's country is', including details of when, how, and by whom the Applicants were taught about this.

Paragraph 15 is material to the applicants' central allegation in paragraph 20 of the SoC. Yet, the paragraph is of a conclusionary nature and is entirely lacking in explanatory or supporting details.

The applicants dispute that the requested particulars are necessary, particularly having regard to Dhu v Karlka 2021 and the evidence available to the respondents as identified in the applicants' submissions.

16. Including by reason of the facts stated at [17] below, the Applicants have and have for a considerable period actively experienced and pursued, a connection to Ijiyangu's Country.

Details of the 'considerable period' and the manner in which the Applicants are said to have 'actively experienced and pursued, a connection to Ijiyangu's country'

Paragraph 16 is material to the applicants' central allegation in paragraph 20 of the SoC. Yet, the words 'considerable period' are uncertain, and the words 'actively experienced and pursued, a connection to Ijiyangu's country' are of a conclusionary nature and lacking in explanatory or supporting details.

As set out in the submission below in relation to paragraph 17 of the SoC, paragraph 17 does not contain or constitute particulars of the matters pleaded in paragraph 16.

17. At all material times including up to the date of this statement of claim, the Applicants have continued to:

a. be connected with Ijiyangu's Country under Traditional Laws and Customs;

b. visit family members in the Pilbara including Nyiyaparli family members;

c. interact socially with other Pilbara Aboriginal people, including Nyiyaparli People;

d. attend funerals in the Pilbara, including funerals for Nyiyaparli People; and

e. be accepted and recognised as holding rights within the Nyiyaparli Determination area by some Nyiyaparli People, including senior Nyiyaparli People and by other senior Pilbara Aboriginal People.

The matters pleaded in each of paragraphs 17(a), (b), (c), (d) and (e) including, in the case of paragraphs 17(b) to 17(e), the names of the 'Pilbara Aboriginal People' and 'Nyiyaparli People' referred to in the paragraphs, but not limited to these matters.

Paragraph 17 is material to the applicants' central allegation in paragraph 20 of the SoC. Thus, the respondent is entitled to understand the precise nature of the material facts pleaded. Yet, sub-paragraphs (b), (c) and (d) are general and entirely lacking in explanatory or supporting details of material facts.

Further, sub-paragraphs (a) and (e) plead conclusions, not primary material facts. No material facts, let alone particulars, are pleaded which are capable of sustaining either of these conclusions.

The matters raised by the respondents as the basis for the submission that the particulars sought are necessary, concern preparation for trial. They do not satisfy the Court that an order for particulars is necessary or desirable to enable the respondent to plead, as required by r 16.45(3).

65. The Respondent has failed to act in good faith in relation to its engagement with the Applicants on the question or issue whether they meet the Identification Requirement.

Particulars

…

c. The Respondent's reliance on the Karlka Advisory Group's decision.

Particular (c) to paragraph 65, namely, the details of when and how the Respondent is said to have 'relied' on the Karlka Advisory Group's decision of November 2022

The allegation in paragraph 65(c) is essential to the applicants' allegation that the respondent breached an alleged duty to act in good faith in relation to its engagement with the applicants on the question or issue whether they meet the 'Identification Requirement'; i.e. they self-identify as Nyiyaparli people under Nyiyaparli traditional laws and customs, and are recognised as Nyiyaparli by other Nyiyaparli people: see paragraph 18(b) of the SoC. It is therefore essential that the respondent know how, exactly, the respondent is said to have relied on the relevant decision. Yet, no details (particulars) are provided in respect of this pleaded material fact. Absent the particulars sought, the respondent will not be able to conduct its case within r 16.45(2)(b) in that it will not be able to properly prepare by identifying, at an early stage, relevant witnesses and taking evidence from those witnesses about the matters the subject of the sub-paragraph.

This is a matter within the respondent's knowledge. It is apparent from paragraph 39 of the SoC that the applicants do not have all information relevant to the request and that it is the respondent that is capable of providing information relating to its reliance (or not) on the decision of the Karlka Advisory Group.

Particulars ought to await the respondent's defence and discovery.

The matters pleaded at paragraph 48 of the SoC are capable of supporting an inference of reliance. The respondent has the capacity to know whether or not it relied on the Karlka Advisory Group's decision. Without discovery, the applicants cannot be expected to provide particulars of facts, matters and things that are said to constitute or establish that reliance.

It follows that the respondent has not satisfied the Court that an order for particulars is necessary or desirable to enable it to plead, as required by r 16.45(3).

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