Federal Court of Australia

Sampi on behalf of the Koongie-Elvire Native Title Claim Group v State of Western Australia [2026] FCA 1405

ORDERS

THE COURT ORDERS THAT:

1.    Save as set out at (a) and (b) below, the Tjukawarrinj Respondents are granted leave under r 16.53 of the Federal Court Rules 2011 (Cth) to file the further amended statement of facts, issues and contentions in the form annexed to the affidavit of Henry Paul Dow dated 15 September 2026 (FASFIC):

(a)    the words “and which was traditionally and is currently primarily associated with Lunga Kitja people and not Jaru people” in paragraph 1(h) of the FASFIC; and

(b)    the words “Tjukawarrinj’s estate included land within the Lunga Kitja Area” in the particulars to paragraph 17 of the FASFIC.

2.    By 4:00 pm AWST on 22 September 2026, the Tjukawarrinj Respondents file a FASFIC in accordance with order 1.

3.    Costs reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LONGBOTTOM J:

INTRODUCTION

1    The Koongie-Elvire claim is over 25 years old. Following an intensive period of case management since, at least, 2021, an order was made on 26 September 2025 that there be a trial of certain issues in dispute as agreed between relevantly the Tjukawarrinj Respondents and the Kimberley Land Council (separate question). Those issues, as further refined by an order made on 29 January 2026, are as follows:

Composition of native title-holding group

5.    The first issue in dispute is the composition of the native title-holding group within s 225(a) of the Native Title Act 1993 (Cth) (NTA), as set out in cl. 4 and Schedule 6 of the Draft Agreement (Issue 1). The particular sub-issues in dispute are:

a.    (Issue 1(a)) Of the “apical ancestors” listed in item 2 of Schedule 6 of the Draft Agreement, whether any of the following persons is an apical ancestor for the claim area, in the sense of a person who held rights and interests in the claim area at or around effective sovereignty and whose descendants are native title holders for the claim area (apical ancestor):

i. Kawangali (aka Teapot) (item 2(16)); and

ii. Korkalbia (item 2(17)).

b.    (Issue 1(b)) Whether any of the following persons, being persons who are not among the “apical ancestors” listed in item 2 of Schedule 6 of the Draft Agreement, is an apical ancestor in the sense described in the previous paragraph ([5(a)]):

i. Tjukawarrinj;

ii. Pumpkin and Wolway Nipper (siblings of Yarji); and iii. Unnamed Mother of Nidbarrir and Dzurin-Dzurin.

c.    (Issue 1(c)) Whether, under the traditional laws and customs of the claim area, a person is able to possess native title rights and interests in the claim area solely on the basis that they are recognised by descendants of apical ancestors (in the sense described in [5(a)]) as holding such rights and interests in the claim area under traditional laws and customs (Draft Agreement, Schedule 6, item 1(b)).

(Emphasis in original)

2    On 16 September 2026, a little over a month before the trial of the separate question is to commence, the Tjukawarrinj Respondents have brought an application for leave to file, pursuant to r 16.53 of the Federal Court Rules 2011 (Cth), a further amended statement of facts, issues and contentions.

3    Save for in two respects, leave to amend is not opposed.

4    The amendments that are in dispute are as follows:

(a)    First, whether the Tjukawarrinj Respondents ought to be permitted to plead, in better particularising the definition of “Lunga Kitja Area” at [1(h)] of the amended statement of facts, issues and contentions filed 26 February 2026, that the area of land and waters said to be associated with their apical ancestor “was, traditionally, and is currently primarily associated with the Lunga Kitja people and not the Jaru people” (emphasis added) (the first proposed amendment);

(b)    Second, whether the Tjukawarrinj Respondents ought to be permitted to plead in support of the contention that Tjukawarrinj is an apical ancestor for the claim area that his “estate included land within the Lunga Kitja Area” (emphasis added) (the second proposed amendment). The second proposed amendment appears as a particular to [17] of the amended statement of facts, issues and contentions.

5    The Applicant and the First Respondent (State) oppose leave being granted to make the first proposed amendment. That is essentially on the grounds that it is not relevant to the issues in dispute; is unclear and confusing so as to be embarrassing; and is otherwise likely to cause prejudice, embarrassment or delay: cf, Rules, r 16.02(2)(d) and r 16.02(2)(e). The latter contention is made on the ground that the first proposed amendment appears to reintroduce, or at least, cause confusion as to whether the Tjukawarrinj Respondents are raising for determination at trial, the issue of allegedly different laws and customs or native title holding groups for the “Lunga Kitja Area”.

6    The Applicant alone opposes leave being granted to make the second proposed amendment. That leave is opposed because the Applicant submits that the word “included” raises the possibility that the Tjukawarrinj Respondents’ apical ancestor’s area is different (in an unparticularised sense) to the area defined by both a map and a written description as pleaded at [1(h)] of the amended statement of facts issues and contentions. The Applicant submits that this is likely to cause prejudice, embarrassment or delay because in September 2025 the Tjukawarrinj Respondents were ordered to, and did, provide particulars of the Lunga Kitja Area, which the Applicant has addressed in their lay and expert evidence, and the proposed amendment introduces ambiguity as to whether or not that remains the Tjukawarrinj Respondents’ case.

7    The Tjukawarrinj Respondents have put on evidence and made submissions in support of their application to further amend their statement of facts, issues and contentions. The effect of that evidence and those submissions, relevant to the disputed amendments, is that they “make clear their contention that the Lunga Kitja Area traditionally and is currently primarily associated with the Lunga Kitja people and not Jaru people” and to “clarify [their] case having regard to the expert evidence they propose to rely upon”. It is said, in this regard, that the Court need not (though it may) determine the boundary of the Lunga Kitja Area in deciding Issues [1(b)(i)] and [1(c)], as set out above.

disposition

8    The principles relevant to the amendment application are well established. They require consideration of whether there is a proper basis for the amendment and whether it is in the interests of justice and consistent with the overarching purpose of s 37M of the Federal Court of Australia Act 1976 (Cth) to permit the amendment at this stage of the proceeding: see Colbung on behalf of the Karratjibbin People v State of Western Australia (No 2) [2023] FCA 1449 at [10] (O’Bryan J).

First proposed amendment

9    For the following reasons, I do not consider there to be a proper basis for the Tjukawarrinj Respondents to make the first proposed amendment or that the amendment is consistent with the interests of justice and the overarching purpose of s 37M (or indeed, s 37N) of the Federal Court Act.

10    First, I am satisfied that the proposed amendment is so unclear as to be embarrassing: cf, Rules, r 16.02(2)(d) and Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 at [22]-[24] (Edmonds J). As the State submits, this is so because, amongst other matters, no fact is pleaded as to who, other than Tjukawarrinj, is said to have been a “Lunga Kitja person” and there is no clarity as to what is meant by the words “traditionally and … currently” in the context of asserting that Lunga-Kitja people are “primarily associated” with the Lunga Kitja Area. That latter ambiguity is particularly stark given the significance the word “traditional” has under s 223 of the Native Title Act 1993 (Cth) in identifying the laws and customs by which rights and interests are possessed in land and waters. The effect of the ambiguity is to render the proposed amendment susceptible to various meanings and put the opposing parties, including the Applicant and the State, in the position of not knowing the case that they are required to meet at the trial of the separate question: cf, Priest v New South Wales [2006] NSWSC 12 at [34] (Johnson J).

11    The Tjukawarrinj Respondents argue, against that conclusion, that the amended statement of facts, issues and contentions is not a “pleading” to which the requirements in r 16.02 of the Rules apply.

12    There is a certain irony in that submission given that their interlocutory application is brought under r 16.53 of the Rules, which provides for the grant of leave to amend a “pleading”. In my view, the amended statement of facts, issues and contentions is a “pleading” within the meaning of Sch 1 of the Rules. That is because it is an “alternative accompanying document” that the Chief Justice permits in NT-1 to accompany an originating application: cf, Rules, r 8.05(2)(c) and Sch 1 (“pleading”).

13    In any event, while arguing that a statement of facts, issues and contentions ought not to be scrutinised for the same level of strictness, counsel for the Tjukawarrinj Respondents did not dispute that it needed to be “clear”. I reject, in that regard, the Tjukawarrinj Respondents’ submission that the first proposed amendment achieves the objective of clarity because the concepts there used are known to the parties or revealed in the evidence. In the context of a trial of a separate question where parties are putting on competing lay and expert evidence, I am not persuaded that the terms used in the first proposed amendment can be taken as commonly understood.

14    Second, the proposed amendment is not relevant to the issues to be decided at the trial of the separate question. Those issues are relevantly concerned with whether Tjukawarrinj was a person having rights and interests in the claim area (Issue 1(b)(i)) and whether recognition, in and of itself, is sufficient to found native title rights and interests in the claim area under the traditional laws acknowledged, and the traditional customs observed, by the people concerned (Issue 1(c)). The proposed amendment does not bear on those issues because it goes beyond an assertion that Tjukawarrinj ought to be recognised as an apical ancestor in any determination to contend that “Lunga Kitja people and not Jaru people” are “traditionally” and “currently” associated with part of the claim area.

15    Third, the proposed amendment is apt to cause confusion because it leaves open, but does not squarely raise, a broader issue not programmed for trial as to whether the claimants hold native title rights and interests in the Lunga Kitja Area.

16    At the hearing, consistent with the submissions recounted above, counsel for the Tjukawarrinj Respondents candidly acknowledged that the purpose of the proposed amendment was to make clear that his clients’ case is, and always has been, that “the Lunga Kitja Area was traditionally and is currently primarily associated with the Lunga Kitja people and not the Jaru People”. Mr Pudovskis made reference in that regard, to [24(e)] the amended statement of claim dealing with “Issue 2(a)” in the “agreed issues” document. Issue 2(a), which is not programmed to trial, concerned whether “only the descendants of certain apical ancestors of a former respondent to the claimant application (Ms Valma Banks) held native title rights and interests in part of the Koongie-Elvire claim area”.

17    In principle, it is permissible for the Tjukawarrinj Respondents to defensively rely on their asserted native title rights and interests to resist a positive determination in favour of the Applicant and the Koongie-Elvire claimants whom the Applicant represents: see Blucher on behalf of Gaangalu Nation People v State of Queensland [2018] FCA 1369 at [21] (Rangiah J) in the context of considering an application for joinder under s 84(5) of the Native Title Act. But I do not consider it to be in the interests of justice to permit the Tjukawarrinj Respondents to rely on the proposed amendment to a definition in their amended statement of facts, issues and contentions to do so.

18    The Tjukawarrinj Respondents have been given ample opportunity to squarely raise as an issue for determination at the trial of the separate question, whether the claimants hold native title rights and interests in the Lunga Kitja Area. Whether they wish to do so has been a looming issue, at least since I commenced case management of the proceeding in September 2025. It has arisen in various contexts, including during a preservation of evidence hearing in October 2025, and a case management hearing in January 2026, at which there was argument about respective parties’ onus of proof at the trial.

19    During the course of that case management hearing on 30 January 2026, the State made explicit its concerns that the Tjukawarrinj Respondents sought to advance the case that there “are Lunga Kitja people” or a sub-set of the native title holding group that exclusively possess native title rights and interests in the Lunga Kitja Area. That case was reflected in [23(d)] of the Tjukawarrinj Respondents’ then statement of facts, issues and contentions filed 1 July 2025, which provided as follows:

[23]    As to ASFIC [27] read with the Applicant’s Particulars [3(f)(ii)] and [3(f)(iii)], the Tjukawarrinj Respondents:

    …

(d)     biological descent from Apical Ancestors who held rights and interests in the Lunga Kitja Area at or around effective sovereignty is the only means by which a person can gain rights and interests in land in the Lunga Kitja Area under the traditional laws and customs of that area.

20    During the course of the case management hearing, I had the following exchange with counsel for the Tjukawarrinj Respondents with respect to [23(d)]:

HER HONOUR: Yes, okay then. Thank you. Now, Mr Pudovskis, I might move back to you. As I see where matters now sit, the issue is 23(d). I can tell you that, insofar as it concerns what is advanced in that paragraph, it is my view for the reasons that I have already articulated that the onus is on your client to establish what is in 23(d). But it does seem to me, given what is said by the State, that there is a pressing issue that needs to be resolved as to whether either they seek that paragraph be struck out and/or your client brings an application to, in simple terms, amend the separate question to raise a distinct issue as to whether only [Lunga] Kitja people, however that may be described, can hold rights and interests or gain rights and interests in the [Lunga] Kitja area...

21    At the end of the case management hearing, I made the following observations:

HER HONOUR: …. Obviously, no such application has been brought, let alone argued. But from where I’m sitting at the moment, consistent with [s 37M and s 37N] of the Federal Court Act, I’m keen to resolve the real issues in dispute. So if there is a real issue of the type, as identified in paragraph 2(a) of the earlier emanation of the separate question, that can be permissibly brought by the Tjukuwarrinj respondents. I would need to be persuaded that there is some substantive reason why it ought not be determined. And, really, that’s just because I don’t want us to get to the end of the process this year, and have anything arise that would get in the way of the native titleholders finally getting a recognition of their native title.

22    As already noted, [2(a)] concerned the persons holding native title rights and interests in a particular part of the claim area. On 29 January 2026, the separate question for trial was amended to remove that as an issue following Ms Valma Banks ceasing to be a party to the proceeding.

23    The orders I made following the case management hearing on 30 January 2026, relevantly included the following:

1.     By 12 February 2026, any application to strike out [23(d)] of the Tjukawarrinj Respondents’ Statement of Facts, Issues and Contentions filed 1 July 2025 (or any related part of that document) be filed, together with any supporting affidavit(s) and written submissions (limited to 10 pages).

2.     By 12 February any application to amend the separate question be filed, together with any supporting affidavit(s) and written submissions (limited to 10 pages).

3.     If an application is filed in accordance with order 1 or 2 above:

(a)     By 1:00 pm AEST on 17 February 2026 any affidavit or written submission (limited to 10 pages) in response to the application be filed; and

(b)     The application be listed for 18 February 2026 at 11:00 am AEST.

4.     The matter be listed for a further case management hearing at 11:00 am AEST on 18 February 2026.

24    There followed, on 17 February 2026, orders made by consent granting the Tjukawarrinj Respondents leave to amend their statement of facts, issues and contentions to remove from [23(d)] the words “who held rights and interests in the Lunga Kitja Area at or around sovereignty”. There was no application made to amend the separate question to permit the Tjukawarrinj Respondents to defensively rely on their asserted native title rights and interests to contend that there ought not be a determination of native title in favour of the claimants in the Lunga Kitja Area.

25    Given that procedural history, I consider that it would be inimical to the interests of justice and s 37M of the Federal Court Act to permit the Tjukawarrinj Respondents, so close to trial, to amend a definition in their pleading for the purpose of permitting them to advance a case at the hearing of the separate question that “the Lunga Kitja Area was traditionally and is currently primarily associated with the Lunga Kitja people and not the Jaru People”. Should they wish to run such a case, it would be necessary for the Tjukawarrinj Respondents to apply to amend the separate question for trial.

26    For all of those reasons, I refuse leave to further amend the amended statement of facts, issues and contentions to include the first proposed amendment.

Second proposed amendment

27    I am also unpersuaded that it is in the interests of justice and consistent with the overarching purpose of s 37M of the Federal Court Act to permit the Tjukawarrinj Respondents to make the second proposed amendment.

28    The Applicant emphasises that the second proposed amendment is connected with the first in that it is a contention that Tjukawarrinj’s estate included land within the Lunga Kitja Area, as defined in [1(h)]. The second proposed amendment is a particular of the contention pleaded at [17] of the amended statement of facts, issues and contentions that Tjukawarrinj is an apical ancestor for the Koongie-Elvire claim area.

29    The Applicant submits that the second proposed amendment is evasive or ambiguous or is likely to cause prejudice, embarrassment or delay: cf, Rules, r 16.02(2)(d) and r 16.02(2)(e). They highlight, in this regard, orders made in the proceeding on 26 September 2025 requiring the Tjukawarrinj Respondents to better particularise what they identify as the “Lunga Kitja Area”, which were addressed by way of a document filed by the Tjukawarrinj Respondents on 9 October 2025.

30    Against that background, the Applicant argues that the use of the word “included” in the second proposed amendment creates ambiguity and causes embarrassment. That is because it introduces uncertainty as to the case advanced by the Tjukawarrinj Respondents as to the location of Tjukawarrinj’s estate relevant to Issue 1(b) in dispute. That includes, for example, whether Tjukawarrinj’s estate extended to some other area, be it inside or outside of the claim area, and, if it is some other part of the claim area, where that area might be. The Applicant submits that ambiguity causes them prejudice because the Applicant has filed expert and lay evidence to meet the case as particularised on 9 October 2025, and reflected in the amended statement of facts, issues and contentions, as to where Tjukawarrinj’s estate is.

31    The Tjukawarrinj Respondents refute that the use of the word “included” includes introduces any ambiguity. In oral argument, counsel for the Tjukawarrinj Respondents explained that the purpose of the word “included” was simply directed to reflecting the possibility that once the evidence was heard at trial, the geographical ambit of Lunga Kitja country may more clearly emerge, including as being something lesser than the area particularised in the document filed on 9 October 2025. Counsel also submitted that it is not necessary for the Tjukawarrinj Respondents to say in the statement of facts, issues and contentions precisely what constitutes the Lunga Kitja Area.

32    I am unpersuaded by the Tjukawarrinj Respondents’ submissions. The purpose of the statement of facts, issues and contentions, as with all pleadings, is, relevantly, to state the material facts on which the parties rely that are necessary to give the opposing parties fair notice of the case to be made against that party at trial: see, eg, Ward v Western Australia (No 2) [2014] FCA 825 at [36] (Barker J). While there is a distinction that may be drawn between an allegation (here a contention) and the particulars pleaded in support, that distinction is less stark than what it might have been in the past. That is especially so where, as here, it is evident that the particulars are advanced as part of the material facts upon which the party relies in advancing its case: cf, Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 at [13]-[17] (Lindgren J).

33    The vice with the proposed amendment is that the use of the word “included” in particularising where Tjukawarrinj’s estate was, introduces ambiguity as to the case the Applicant is required to meet: cf, Priest at [34]. It has, for that reason, the tendency to cause prejudice or embarrassment at the trial of the separate question: cf, Rules, r 16.02(2)(d). It may be that some alternative form of words could be introduced that removes that ambiguity. It would necessarily involve removal of the word “included” as the second proposed amendment is currently formulated. But it is not the task of the court on an application for leave to amend to engage in such redrafting.

34    The Tjukawarrinj Respondents’ submission that the word “included” has been used for the very purpose of accommodating the possibility of evidence supporting a different estate for Tjukawarrinj, underscores the very difficulty with what is proposed by the second amendment. This is an adversarial, not an inquisitorial, process, and it is the material facts as set out in the statement of facts, issues and contentions that guide the issues to be determined at the hearing of the separate question.

35    For all of those reasons, I do not consider it to be in the interests of justice or s 37M of the Federal Court Act to permit the Tjukawarrinj Respondents to make the second proposed amendment with the word “included”. It follows, that I refuse leave for the second proposed amendment in its current form.

costs

36    The Applicant seeks an order that costs be reserved. I consider that to be appropriate in the circumstances. The question of the costs of and incidental to the application to further amend the Tjukawarrinj Respondents’ amended statement of facts, issues and contentions can be addressed at a later time.

Associate:

Dated:    24 September 2026

SCHEDULE OF PARTIES